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United States v. Escalera

United States District Court, W.D. New York

August 30, 2017

UNITED STATES OF AMERICA,
v.
JOSE ESCALERA GIOVANNI COTTO, Defendants.

          DECISION AND ORDER

          RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE.

         After a jury trial, both Defendants were convicted of one count of retaliating against a witness in an official federal proceeding, in violation of 18 U.S.C. §§ 1513(b)(1), 1513(c), and 2. Specifically, both Defendants were found guilty of directing an assault on Anthony Maldonado, a witness in a federal criminal trial, in retaliation for Maldonado's testimony in that trial.[1]

         At the final pretrial conference on July 5, 2017, the Government disclosed that one or both Defendants had spoken to a trial witness, Esteban Ramos-Cruz, when the Defendants and Ramos-Cruz were in the same area of the courthouse earlier that day. The Government alleged that the Defendants had attempted to intimidate Ramos-Cruz.

         During trial, the Defendants moved to preclude evidence that they had allegedly attempted to “tamper[]” with Ramos-Cruz.[2] Docket No. 223 at 4-7. The Defendants argued that Federal Rules of Evidence 403 and 404(b) made such evidence inadmissible, as did the Sixth Amendment's Counsel Clause.

         During argument on the Defendants' motion the next morning, the Government disclosed that one or both Defendants had again spoken to Ramos-Cruz that morning. After hearing argument, the Court ordered an evidentiary hearing to help the Court understand the facts giving rise to the Defendants' motion and, in particular, their Sixth Amendment claim. At the hearing that afternoon, the Court heard testimony from Ramos-Cruz and Deputy United States Marshal Lee Eckenrode. Neither Defendant called any witnesses.

         After the hearing the Court issued a brief oral ruling denying the Defendants' motion. The Court held that neither Rule 404(b) nor Rule 403 barred admission of the Defendants' statements. The Court also concluded that the Sixth Amendment did not preclude admission of the statements. Finally, the Court noted that it would file a written decision stating the reasons for its ruling in more detail.[3]

         BACKGROUND

         As noted, Deputy United States Marshal Lee Eckenrode testified at the suppression hearing. Deputy Eckenrode has served in the United States Marshals Service (USMS) for seven years. Tr. 2:15-19.[4] As relevant here, Deputy Eckenrode was “in charge of managing the day-to-day affairs with respect to the defendants and the witnesses in this case.” Tr. 2:24 - 3:1.

         Deputy Eckenrode testified about how and when in-custody individuals are separated from each other, both inside and outside the courthouse. In the time leading up to trial in this case, the USMS held the Defendants at the Niagara County Jail, while Ramos-Cruz was held in the Cattaraugus County Jail. Tr. 3:13 - 4:3. Deputy Eckenrode testified that, before trial began, the Government placed keep-away orders between the Defendants and the trial witnesses. Tr. 3:6-12. When the USMS transfers custody of prisoner to a local jail, that jail is “provided with paperwork that shows any keep-away, whether it's at that facility or another.” 5:21-24. Thus, in this case, the Niagara County and Cattaraugus County Jails knew, or should have known, about the keep-away orders in place between the Defendants and Ramos-Cruz. Tr. 5:25 - 6:2.

         Deputy Eckenrode testified that, “[f]or trial purposes, ” it is his “practice to bring the defendants [who] are on trial to the same floor where the trial is going to take place” (in this case, the ninth floor of the courthouse), while he places all in-custody witnesses on another floor, other than the fourth floor, where the USMS's main cellblock is located. Tr. 4:12-17. Deputy Eckenrode also testified that, on “[d]ays that don't involve trial, [the USMS] will only isolate somebody[] if necessary.” Tr. 11:4-5. Finally, Deputy Eckenrode testified that, on the eve of trial, it is his practice to place defendants and trial witnesses “in . . . different cell[s] or isolation cell[s]” to “ensure[] that [defendants and trial witnesses] . . . ha[ve] no chance to speak or see each other.” Tr. 21:3-13.

         Deputy Eckenrode also very credibly testified that he did not place “witnesses near trial defendants [in this case] so that [he] could solicit incriminating statements.” Tr. 13:2-5. Likewise, Deputy Eckenrode testified, no one from “the government, ” including the Assistant United States Attorneys who prosecuted this case, requested that he “intentionally place witnesses near the defendant[s] so [Government agents] c[ould] solicit incriminating statements.” Tr. 13:6 -10.

         As noted, Defendant Cotto made the statements at issue on two different days. The first statement was made on July 5, when the Defendants were brought to the courthouse for the final pretrial conference. The second statement was made on the morning of July 10, when the Defendants were brought to the courthouse for trial. Ramos-Cruz was also brought to the courthouse on those dates: On July 5 he was brought to the courthouse to prepare for trial, and on July 10 he was brought to the courthouse to testify.

         The Court considers the events of each date in turn.

         1. The July 5, ...


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