Opinion
99 Civ. 8796 (RMB) (AJP).
June 8, 2001
REPORT AND RECOMMENDATION
Samuel James petitions for a writ of habeas corpus from his February 24, 1995 conviction in Supreme Court, New York County, of two counts of perjury. The perjury involved James' testimony, to a grand jury investigating allegations of cheating on the transit police sergeant's exam, that James was not at the home of Lt. Gordon and did not receive information about the exam from Lt. Gordon. James, proceeding through counsel appointed by this Court, challenges the admission into evidence at his trial of two out-of-court tape-recorded statements by Lt. Gordon, who asserted his Fifth Amendment right not to testify at James' trial, as violative of his rights under the Sixth Amendment Confrontation Clause. (Dkt. No. 1: Pet. ¶ 12.) For the reasons discussed below, the statements did not violate James' confrontation rights, and the Court should deny James' habeas corpus petition.
INTRODUCTION
This case stems from a "study" group at which a transit police lieutenant, who prepared the test questions for an exam for promotion to sergeant, gave the questions to a group of transit police officers in his command with whom he was friendly. Petitioner, then-Transit Police Officer Samuel James, was not prosecuted directly for involvement with the cheating scheme, but was prosecuted for and convicted of perjury for denying before a grand jury that he was present at a "study" meeting on the night of October 20, 1990 at Lt. Michael Gordon's home. The key issue at trial was whether James was present at the October 20 study meeting. (E.g., Trial Transcript ["Tr."] 3104.)
The State proved that James was present at the October 20 meeting principally through the testimony of Transit Police Officer Lizette Lebron, who admitted she was present at the October 20 meeting and testified that James also was there. (E.g., Tr. 362-74.) Lebron's friend, Yvette Lampone, who is not a member of the police department, confirmed that she accompanied Lebron to Lt. Gordon's house on October 20, and that two African-American male and one female officer were there, but Lampone was unable to identify James or any other participant. (Tr. 2217-25, 2229.) The inference that James had obtained the answers to the February 2, 1991 sergeant's examination was supported by evidence that his score was higher on that exam than the 1992 re-test in which there was no allegation of cheating. (E.g., Ex. I: James Ct. App. Br. at 28-20: James' "'ranked score' went from the 97th percentile in 1991 to the 79th in 1992 . . . "; see also page 12 below.)
References to exhibits are to the exhibits in the Appendix submitted to this Court by the State, Dkt. No. 21.
Most significantly, to corroborate Lebron's allegations as required by State law, the prosecution introduced tape recordings of two out-of-court telephone conversations between Lt. Gordon and Lebron. In the first (the "October 20 Statement"), Gordon invited Lebron to the illicit study meeting and informed her that James and James' co-defendant, Officer David Tarquini, would be there: "I got Sam and Dave, they're coming to my house around, between 11 and 12 o'clock tonight." (Tr. 591-93; 10/20/90 Tape #1.) In the second (the "October 23 Statement"), after Lebron's detective-boyfriend threatened to go to Internal Affairs, Lt. Gordon told Lebron to give her notes from the study meeting to James or to Joyce Sellers, another transit police officer: "Give the papers to fucking Joyce or Sam or somebody, okay?" (10/23/90 Tape #2.)
References to tapes are to transcripts of the actual tapes entered into evidence. (See Dkt. No. 20.) These transcripts are not page-numbered, but are broken down by date and tape numbers within a particular date.
Prior to James' trial, Lt. Gordon was convicted on charges of official misconduct and obstructing civil service rights. (See Ex. I: James Ct. App. Br. at 5; Ex. J: State Ct. App. Br. at 3.) See also People v. Gordon, 272 A.D.2d 133, 709 N.Y.S.2d 503 (1st Dep't), appeal denied, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000). Gordon invoked his Fifth Amendment rights outside the jury's presence and did not testify at James' trial. (See Tr. 3-4.)
James' habeas petition attacks the admission into evidence of Gordon's two out-of-court taped statements as violative of James' rights under the Sixth Amendment Confrontation Clause.
FACTS
The Cheating Ring In 1990, petitioner Samuel James was a member of a group of friends who worked together at Transit Police District One, headquartered at 59th Street and Columbus Circle in Manhattan. (Tr. 342-43, 351-53, 591-92) The group included, among others, Transit Police Officers Samuel James, his partner Dave Tarquini, Lizette Lebron, Deborah Gillians and Joyce Sellers. (Tr. 351, 2633, 2692.) These officers and Lt. Michael Gordon, one of the District One supervisors, also socialized together. (Tr. 344-45, 350-51.) Prior to 1990, in addition to group socializing, Lt. Gordon and Lebron went out alone together twice and had a "personal" social relationship. (Tr. 349, 355-56, 987.) Although Lebron denied having a "romantic" relationship with Lt. Gordon (Tr. 987, 1229), Lebron wrote him a note in October 1989, entered into evidence, which read "I still love you and never tell me no te qu[i]ero mas," which means "never tell me I don't love you any more" (Tr. 988-90).
By October 1990, Lebron's boyfriend, District One Detective John Lohan, had moved into her apartment. (Tr. 356-60, 1328.) Even so, Lebron continued to have a flirtatious relationship with Lt. Gordon, who appeared to be interested in her romantically and made Lohan jealous. (See Tr. 357, 944, 957, 992-97, 1401-02, 1406-07, 1417-32.) As Lohan put it: "Gordon . . . was trying to get into her pants for a long while." (Tr. 1402, 1418-21, 1489, 1554.)
At the time of James' trial in January 1995, Lebron and Lohan were still living together, and were "engaged to be married." (Tr. 654, 1211, 1731-32.)
In July 1990, Lt. Gordon was assigned to help draft questions for an examination to be administered to transit police officers seeking promotion to sergeant. (Tr. 228, 236-37, 358-59, 1926.) Gordon's friends and underlings — including Officers James, Lebron, Tarquini and Gillians — were all planning to take the exam. (Tr. 374, 2703-04.) The exam contained two sections: one covering technical knowledge of the patrol guide, the other covering general intelligence. (Tr. 1927-28, 2503-06.) The test was designed so that candidates could study for the technical knowledge section, but not for the general intelligence section. (Tr. 1927-28, 2503-06.) Lt. Gordon helped prepare the technical knowledge section. (Tr. 2508.) As a condition of his new assignment, Lt. Gordon signed an affidavit affirming that he would: (i) "take all precautions necessary to safeguard the integrity of the examination process and to prevent any candidate from gaining any advantage," (ii) "not help anyone in preparing for the examination," and (iii) "keep confidential all source material used in writing questions, test plans, and related material." (Ex. D: State 1st Dep't Br. at 5, quoting PX 12; accord, Ex. J: State Ct. App. Br. at 6, quoting PX 12; see also Tr. 235-36, 1935-36, 2706-07, 2752-53.)
The October 20, 1990 Midnight Meeting
Nevertheless, in October 1990, Lt. Gordon arranged a "study group" at his home where he revealed specific questions slated for the upcoming exam. (Tr. 362, 366-70.) The session took place while Lebron's live-in boyfriend Lohan was away for the weekend. (Tr. 359, 1329-30.) Lt. Gordon called Lebron on Friday, October 19, 1990, a day before the study meeting, and the two spoke for almost two hours. (Tr. 362, 634-35, 644, 646-47, 1010-11.)
The following evening, October 20, 1990, Gordon called Lebron again. (Tr. 359-60, 588, 1328-29.) This phone call was inadvertently tape-recorded in its entirety. (Tr. 485, 539.) The tape was authenticated at trial by Lebron and by an FBI specialist, and admitted into evidence over defense in limine motions and objections. (Tr. 37-38, 586, 589, 2385-88, 2393-414; see also Ex. C: James 1st Dep't Br. at 2; Ex. D: State 1st Dep't Br. at 37; Ex. I: James Ct. App. Br. at i-ii, 19; Ex. J: State Ct. App. Br. at 22.) This is one of the two tape-recorded statements at issue in James' habeas petition.
Lebron and Lohan had a device attached to their phone to record calls automatically in order to investigate obscene phone calls that Lebron believed came from a District One sergeant. (E.g., Tr. 1360-61, 1786, 1851-62.) While Lebron often turned the recorder off during personal calls, she sometimes forgot to do so, including this time. (Tr. 484-86, 498, 642.)
The tape contains mostly flirtatious banter between Lt. Gordon and Lebron. (10/20/90 Tape #1; see also Tr. 1019-22, 1048-49.) Gordon begins by asking Lebron, "Weren't you supposed to be someplace today?" (10/20/90 Tape #1.) Lebron responds that Gordon "didn't tell [her] what time." (Id.) Gordon and Lebron banter about the way she spoke to Gordon, and joked that Lebron "ain't talking to [her live-in boyfriend] John" Lohan. (Id.; see Tr. 590.) Gordon informed Lebron that "Sam and Dave" are coming to his place: "I got Sam and Dave, they're coming to my house around, between 11 and 12 o'clock tonight." (10/20/90 Tape #1; see Tr. 591.) Lebron confirmed that the references to "Sam and Dave" in the conversation were to Samuel James and David Tarquini. (Tr. 591-93, 596.) Lebron asked "For what?" and Gordon responded "I told you yesterday, stupid." (10/20/90 Tape #1.) Gordon explained that Sam and Dave "couldn't make it any earlier," and that Deborah Gillians and another female officer could not come because they were going to a play. (Id.) Lebron asked, "So everybody's going to your house?" to which Gordon responded, "Yeah, just the two of them, just Dave Tarquini and Sam." (Id.) Lebron asked about Deborah Gillians, and Gordon responded, "Well they gonna be at the play and I already, I told Sam 'Well since they gonna be at the play, you know, tell them to get . . . go home or whatever, you know, the guys should stop by.'" (Id.) After more friendly conversation, Gordon assured Lebron that she would not really have to study:
In argument to the trial court and the jury, defense counsel pointed out that while Gordon said James and Tarquini were coming, Gordon also said Officer Deborah Gillians was not coming, but according to Lebron's testimony Gillians showed up at Gordon's house. (Tr. 3047-48, 3101-02, 3194.) The defense argued that Gordon's "predictions" of who would be coming on October 20 had "a very low degree of reliability." (Tr. 3048.)
[Lebron]: Yeah, but how can I study at 12 o'clock on a Saturday night? Are you on drugs?
[Gordon]: I didn't say you were going to study.
[Lebron]: So you just gonna tell me what to study and I'll study it?
[Gordon]: Yeah.
[Lebron]: All right, so we're gonna try to come by, all right?
(Id.) They discussed putting off the meeting until the following Saturday, but Lebron noted that "Next Saturday somebody else will be home too," referring to her jealous boyfriend, Lohan. (10/20/90 Tape #1; see Tr. 596, 1057-58.) Gordon proposed that he "tell Sam and Dave to give it to you, then." (10/20/90 Tape #1.) Lebron said she would try to come, and Gordon provided directions to his house in Brooklyn. (Id.) Lebron asked again what time "they" were coming and Gordon responded that "They're coming between 11 and 12 o'clock." (Id.) Lebron said she would call Gordon later. (Id.)
Later that same evening, Gordon called Lebron again to ask if she was coming, and again the call was inadvertently tape-recorded. (10/20/90 Tape #2; see Tr. 597.) In this conversation, the flirtation between them intensified (see also Tr. 1019-22):
[Gordon]: . . . just bring a pen and paper.
[Lebron]: Don't you have that?
[Gordon]: Yeah I got that.
[Lebron]: So I'm not bringing shit.
[Gordon]: You don't need to bring anything.
[Lebron]: All right, I'll bring my body.
[Gordon]: Oh boy.
[Lebron]: Oh boy.
. . . .
[Gordon]: Yo, you gonna give me a besso [kiss] or what?
[Lebron]: Ha ha ha, I'll see you in a few . . . I just had shrimp.
[Gordon]: You just had what?
[Lebron]: Shrimp.
[Gordon]: So what does that have to do with anything . . . ?
[Lebron]: I taste like fish, I taste like fish. Laugh. Bye.
(10/20/90 Tape #2; see also Tr. 597-98, 1019-22.)
According to Lebron and her friend Yvette Lampone — a non police officer who was staying with Lebron for the weekend and accompanied her to Gordon's home — the meeting did take place that night, October 20, 1990. (See Tr. 359, 364-74, 1329-30, 2220-25.) Lebron testified that Samuel James, his co-defendant Officer David Tarquini, and Officer Deborah Gillians came to Gordon's house twenty minutes after Lebron and Lampone arrived. (Tr. 365, 374.) Lampone confirmed that three African-American officers — two men and a woman — came to the meeting at Gordon's house, but she was unable to identify any of them, including James. (Tr. 2222-23, 2229.) All except Lampone went into Gordon's dining room. (Tr. 365-66, 2223.) At the meeting, Lebron and the others were permitted to copy Gordon's handwritten notes describing "specific areas in the Patrol Guide" that would be on the exam. (Tr. 366-67, 375-76.)
As the meeting was ending, Lebron testified, Gordon "grabbed me by my arms and he sort of pushed me up against the wall and started kissing me" but she wriggled away. (Tr. 373, 930-33.) According to Lampone, Lebron had her wait in the car for about twenty minutes while Lebron was alone with Gordon in front of the house. (Tr. 2224-25, 2254-57.)
Lohan's Discovery of the Cheating and Gordon's Efforts to Destroy the Notes
Shortly after Lohan returned from his weekend trip, he discovered that Lebron had been to Gordon's house, for a "study group." (Tr. 473, 1029-32, 1043-45,1330, 1441-54.) Lebron admitted that it was a study group but she did not tell Lohan that Lt. Gordon gave them specific questions that would be on the test. (Tr. 1472-73.) Lebron told Lohan that she expected two other people to be at Gordon's house, to explain why she was not wrong to have gone to Gordon's house. (Tr. 1054-56, 1465-66.) Lebron also told Lohan that Gordon had kissed her against her will. (Tr. 1478-80.) Lohan was upset and jealous. (Tr. 957, 1045-46, 1050-54, 1454-57, 1462, 1848-49.)
Lohan, furious, called Gordon, who was in West Point, and demanded that he stop pursuing Lebron. (Tr. 964, 1331, 1483-86.) Lohan told Gordon that the "study group" was inappropriate since Gordon was working on the exam. (Tr. 964, 1331.) Gordon's response was contrite: he promised to leave Lebron alone and asked Lohan not to tell anyone about the study group. (Id.)
In a subsequent conversation brokered by Lebron, Lohan and Gordon arranged to meet, and did meet, at a rest stop on the Palisades Parkway on October 23, 1990. (Tr. 382, 474, 1332, 1342-43.) At the meeting, Lohan told Gordon that he was "unhappy" and upset with Gordon's pursuit of Lebron and having her come to his home on a weekend. (Tr. 1332-33.) Lohan asked Gordon who else was present at the study session, and, according to Lohan's testimony, Gordon "said it was just a couple of friends from District One: Sam James, David Tarquini, Deborah Gillians." (Tr. 1333.) Lohan said it was inappropriate for Gordon to hold a study group. (Id.) According to Lohan, Gordon said that he had given Lebron answers to the test. (Tr. 1657-59, 1666-67, 1696-98, 1707-08, 1885, 2084.) Gordon repeated his promise to leave Lebron alone, but Gordon and Lohan also threatened each other: Lohan said that, after he looked at Lebron's notes, he would go to Internal Affairs if he thought that was appropriate; Gordon informed Lohan that in doing so he would be going up against a chief who had approved Gordon's conduct as well as against The Guardians, a fraternal organization for African-American police officers. (Tr. 1340, 1342, 1490-91, 1555-56, 1559, 1696-98, 1707-08.) Gordon told Lohan not to turn the papers over to anyone and not to tell anyone about the study group. (Tr. 1340-41.) Gordon added that the City is dangerous, and he did not want anyone to "get hurt." (Tr. 1341; see also Tr. 1759-60, 2074, 2094.)
Gordon immediately called Lebron from the highway in a conversation that was tape-recorded and played for the jury. (Tr. 383, 474-75, 586, 599-601; 10/23/90 Tape #2.) There was no flirtation in this conversation; Gordon was strictly business, demanding Lebron not give Lohan a copy of her notes of the illicit October 20, 1990 meeting. (10/23/90 Tape #2; see also Tr. 383.) Instead, he made the "October 23 Statement" which is the second statement at issue in James' habeas petition: "Give the papers to fucking Joyce or Sam or somebody, okay?" (10/23/90 Tape #2), referring to Joyce Sellers and Sam James. (Tr. 601.) Lebron agreed. (10/23/90 Tape #2.) However, neither James nor Tarquini ever asked Lebron about her notes or about returning them. (Tr. 1066.) When Lohan returned to Lebron's apartment, Lebron told him that the papers were just routine study guides provided by the Police Department and not important, or told him that she had destroyed her notes. (Tr. 1495-97, 1504, 1666-67, 1882-83, 1886.)
Gordon called a mutual friend of his and Lebron's, Officer Carlos Davis, and asked Davis to pick up the test papers from Lebron because he (Gordon) was scared for his job. (Tr. 2163-75, 2167-72.) Davis spoke to Lebron on the telephone and told her not to let Lohan get the test papers because Gordon was afraid for his job, and Lebron said yes. (Tr. 2172-74.) Gordon never told Davis that James or Tarquini were at his house or had copies of the test material. (Tr. 2183-84.)
The Investigation and Prosecution
When the sergeant's test was administered in February 1991, James scored better than 97.74 percent of those taking the exam. (Tr. 2523, 2527.) The results of that exam, however, were invalidated when the cheating scandal started to come to light. (Tr. 2509.) When James retook the exam in February 1992, his percentile score dropped to 79.58. (Tr. 2523, 2527-28.) Lebron never took the sergeant's exam, because she was afraid she would lose her job. (Tr. 746, 939.)
The defense pointed out that James and Tarquini were called to the District Attorney's Office, interviewed and served with grand jury subpoenas just three days before the 1992 re-test. (E.g., Tr. 3049-52, 3160-61, 3250-52.)
Before the 1992 re-examination, Lebron gave Internal Affairs copies of her handwritten notes, and later turned over copies of the taped conversations. (Tr. 391, 419, 480, 483-84, 499, 503-09, 513-15, 518, 611-13.) Lebron said she did not turn over the tapes sooner because she was "embarrassed by the contents." (Tr. 613, 725.) As a result of questions raised by the defense and an FBI analysis that showed that the tapes Lebron turned over were copies, Lebron turned the original tapes over to the authorities but she deleted "personal" conversations by over-playing loud music, and also "accidentally" erased one of the conversations with Gordon that was on the copy tapes. (Tr. 495, 501-02, 522, 524-25, 527-31, 542-43, 551, 555-56, 613-14, 664-65, 692-93, 697, 977-79, 2429-32.) Between the copy and original tapes, four conversations, including the two at issue here, were verified by Lebron and an FBI expert as "complete conversations." (Tr. 562, 573, 1214.)
James and Tarquini were called to testify before a grand jury convened to investigate cheating on the 1991 exam and given immunity for their testimony. James testified before the grand jury, inter alia, that: he had not been to Gordon's house in the relevant period in 1990-91, he had not been there with Lebron, he had not been there with Tarquini, and he had not been there with Tarquini, Gillians and Lebron in order to obtain material relating to the sergeant's exam. (See Tr. 2698, 2707-08, 2716, 2720, 2727-29, 2738, 3389-91.)
The October 20, 1990 tape was played to both Tarquini and James during their grand jury testimony, and both reiterated that they were not at Gordon's house (Tr. 2658-59, 2739-41), although James changed his earlier testimony to indicate he may have been invited to Gordon's house, but did not go. (Tr. 2741-42.) Tarquini explained why he thought Lt. Gordon told Lebron that they would be present:
Q. How do you explain then the fact that Lieutenant Gordon in telling someone — is telling Lizette Lebron that you were coming over to his house?
A. Simple, if someone was coming to my house and they were a little bit apprehensive about being there alone, I would tell them that Hope [Tarquini's girlfriend] is there to calm their fears or insecurities.
(Tr. 2663.) James said he had no idea why Gordon would tell Lebron that James and Tarquini were coming over, "but if he [Gordon] were inviting, you know, women over, you know. . ." (Tr. 2743.)
Before James' trial, Gordon was tried and convicted of two counts of official misconduct, Penal Law § 195.00, and three of four counts of Obstructing Civil Service Rights, Civil Service Law § 106. (See Ex. J: State Ct. App. Br. at 3.) See also People v. Gordon, 272 A.D.2d 133, 709 N.Y.S.2d 503 (1st Dep't), appeal denied, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000).
Trial Proceedings: Charge, Verdict and Sentence
James and co-defendant David Tarquini were indicted for perjury (Tr. 339) and tried before a jury beginning on January 23, 1995. The trial lasted a month. Both James' (Tr. 2686-758) and Tarquini's (Tr. 2623-73) grand jury testimony were read in full at trial by the prosecution. Both James and Tarquini rested after the State's case without calling any witnesses. (Tr. 3019.) The prosecutor re-played the Lebron-Lt. Gordon tapes during summation. (Tr. 3268, 3270, 3279.) At the close of trial, the judge instructed the jury to consider only counts 1, 3, 4, and 5 of James' indictment (Tr. 3094-95, 3341-42, 3357-59, 3389-91, 3402-03, 33413), charging James with perjury for making the following statements before the grand jury:
Count 1: Q. In 1990 were you ever to [Gordon's] house?
A. In 1990, no, I was not.
Count 3: Q. From July of 1990 through February of '91, you were never at his house with . . . David Tarquini?
A. Right. That's correct.
Count 4: Q. Were you ever at his house with Lizette Lebron?
A. No, I was not.
Count 5: Q. From July 1990 through February 1991, did you ever go to Michael Gordon's house on an occasion when David Tarquini, Deborah Gillians and Lizette Lebron were present and Michael Gordon gave you material relating to the sergeant's exam?
A. No, there was never a time that happened.
(Tr. 3389-91; see also Tr. 2698, 2707-08, 2716, 2720, 2727-29, 2738; Ex. A: Indictment.) During deliberations, the jury asked for, inter alia, the tapes to be re-played (Tr. 3425-30) and to re-hear both defendants' grand jury testimony (Tr. 3447-54).
The jury acquitted co-defendant Tarquini of all counts, found James not guilty of Counts 3 and 5, and found James guilty of Counts 1 and 4 — that is, that he had been to Gordon's house and that he had been there with Lebron. (Tr. 3472-74, 3506-08, 3510-12.) James was sentenced to four months imprisonment and five years probation on each count to run consecutively, but sentence was stayed pending direct appeal. (See Ex. B: Sup. Ct. Log, last page; Ex. C: James 1st Dep't Br. at 20.) James was immediately fired from the Transit Police Department. (See Ex. C: James 1st Dep't Br. at 20.)
The trial court denied James' motion to set the verdict aside as repugnant. (Tr. 3508-09.) This Court notes two differences in the evidence as to the two defendants — there was evidence from telephone records that Lt. Gordon called James on October 19, 1990 and again on October 23, 1990 from West Point. (See Tr. 2730-38.) There was no similar evidence as to Tarquini. Also, the October 23 Statement referred to giving the papers to James and did not mention Tarquini.
By the time this Court appointed counsel for James and counsel filed a brief, James had served his four month prison sentence but remained on probation. (See Dkt. No. 14: James Br. at 3.)
Direct Appeal to the First Department and the New York Court of Appeals
James appealed his conviction to the First Department, arguing, among other things, that the tape recordings and other evidence of Gordon's out-of-court statements were inadmissible hearsay and were received into evidence in violation of New York evidence rules and the Confrontation Clause. (Ex. C: James 1st Dep't Br. at 26-31.) The First Department affirmed James' conviction, concluding that:
The [trial] court properly admitted, under appropriate exceptions to the hearsay rule, several out-of-court statements that tended to show that defendant's denial of having attended a certain meeting was false. Certain of these statements were admissible as declarations of the unavailable declarant's own intent to meet with defendant and the other statements were admissible as declarations against this declarant's penal interest, including the portions implicating defendant.
People v. James, 247 A.D.2d 251, 251, 669 N.Y.S.2d 24, 24 (1st Dep't 1998) (citations omitted). The First Department did not rule on whether any of the statements were admissible under the co-conspirator exception to the hearsay rule.
James sought and received leave to appeal to the New York Court of Appeals. (Ex. F: James 3/10/98 Leave to Appeal Letter; Ex. H: 5/4/98 1st Dep't Order Granting Leave Continued Stay.) See People v. James, 91 N.Y.2d 1008, 676 N.Y.S.2d 136 (1998) (table; order granting leave to appeal). In the New York Court of Appeals, represented by appellate counsel, James once again argued, inter alia, that Gordon's recorded statements implicating James did not fall within any hearsay exception and violated James' confrontation rights. (Ex. I: James Ct. App. Br. at 36-61.)
In a lengthy opinion, the New York Court of Appeals for the first time explicitly adopted the Hillmon doctrine into New York's uncodified body of evidence rules. People v. James, 93 N.Y.2d 620, 627-36, 695 N.Y.S.2d 715, 718-24 (1999) (citing Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909 (1892)). The Court of Appeals concluded that the October 20 Statement ("I got Sam and Dave, they're coming to my house around, between 11 and 12 o'clock tonight") was admissible under Hillmon, which permits "admitting against criminal defendants (upon establishment of an appropriate foundation) the statements of a declarant's intention to perform acts entailing the participation jointly or cooperatively of the nondeclarant accused." People v. James, 93 N.Y.2d at 632, 695 N.Y.S.2d at 721. The Court of Appeals announced "foundational safeguards" required "before a statement of intent to engage in joint or cooperative activity is admissible against the named nondeclarant . . . ." Id. at 634, 695 N.Y.S.2d at 723. These included showing that:
(1) the declarant is unavailable; (2) the statement of the declarant's intent unambiguously contemplates some future action by the declarant, either jointly with the nondeclarant defendant or which requires the defendant's cooperation for its accomplishment; (3) to the extent that the declaration expressly or impliedly refers to a prior understanding or arrangement with the nondeclarant defendant, it must be inferable under the circumstances that the understanding or arrangement occurred in the recent past and that the declarant was a party to it or had competent knowledge of it; and (4) there is independent evidence of reliability, i.e., a showing of circumstances which all but rule out a motive to falsify, and evidence that the intended future acts were at least likely to have actually taken place.
Id. at 634-35, 695 N.Y.S.2d at 723 (citations omitted). The Court of Appeals found that each of these requirements had been met in Gordon's recorded October 20 Statement. Id. at 635-36, 695 N.Y.S.2d at 723-24. Although the Court of Appeals mentioned the co-conspirator exception to the hearsay rule by way of comparison, id. at 634, 695 N.Y.S.2d at 722, it did not address whether Gordon's statements fell within the co-conspirator exception.
Next, the Court of Appeals found that Gordon's October 23 Statement that Lebron should give the papers to James was admissible as a declaration against Gordon's penal interest, and that it was not necessary to redact James' name. Id. at 636-41, 695 N.Y.S.2d at 724-27. Redaction of James' name was not required under these circumstances since "it was reasonably inferable by the trial court that Gordon's motive for requesting that the papers be released to the specific persons named was that they would be willing confederates in an obstruction of justice — the destruction of evidence of his official misconduct in disclosing the answers to the sergeant's promotional exam . . . ." Id. at 640, 695 N.Y.S.2d at 726-27.
Finally, the Court of Appeals analyzed the admission into evidence of the October 20 and October 23 Statements under the Confrontation Clause in both the federal Constitution and the New York Constitution. Id. at 641-43, 695 N.Y.S.2d at 727-29. Because some background on the Confrontation Clause is required to understand the Court of Appeals' analysis, I reserve a full description of the Court of Appeals' Confrontation Clause holding until Point I. B below.
Federal Proceedings
James timely filed his pro se federal habeas corpus petition on August 10, 1999. (Dkt. No. 1: Pet.) James' petition raises several habeas grounds: four grounds challenge, in various ways, the admission of the October 20 and 23 statements as hearsay that violates his Confrontation Clause rights. (Pet. ¶ 12(A)-(C), (E).) The petition also challenges the trial "court's refusal to give a permissive adverse inference charge." (Pet. ¶ 12(D).)
The Court can quickly dispose of this habeas ground. James' briefs to the First Department and the Court of Appeals raised the issue only under state grounds, citing state authority. (See Ex. C: James 1st Dep't Br. at 37-39; Ex. I: James Ct. App. Br. at 62-70.) The New York Court of Appeals denied James' appeal on this issue by citing state precedents. See People v. James, 93 N.Y.2d 620, 644, 695 N.Y.S.2d 715, 729-30 (1999). Habeas relief does not lie for state evidence or other state law issues. E.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990); Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at *4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.) (citing cases); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *4 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 276 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.) (citing cases); Gillette v. Greiner, 76 F. Supp.2d 363, 370 (S.D.N.Y. Oct. 29, 1999) (Peck M.J.). Even if James now could state a federal constitutional issue, he did not present it to the state courts under any of the methods established in Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982) (en banc), and hence any such federal claim is unexhausted, but because it can no longer be raised in state court, deemed exhausted and procedurally barred. See, e.g., Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *7-10 (S.D.N.Y. Mar. 2, 2001) (Peck M.J.) cases cited therein. Thus, the balance of this opinion focuses on James' Confrontation Clause claims.
On May 1, 2000, shortly after the Supreme Court handed down its ruling in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), clarifying the scope of federal habeas review under the AEDPA, this Court appointed counsel for James (see Dkt. Nos. 9, 10) to brief the issue of whether the admission of Gordon's tape recorded statements violated James' Confrontation Clause rights and, if so, whether such a violation constituted grounds for habeas relief under Williams. (Dkt. Nos. 9-10: Orders Appointing Counsel.) Counsel for James and the District Attorney's Office engaged in extensive briefing and supplemental briefing on that issue. (See Dkt. Nos. 7, 14-16, 18.)
ANALYSIS
I. BACKGROUND: THE CONFRONTATION CLAUSE AND THE NEW YORK COURT OF APPEALS' ANALYSIS
A. The Confrontation Clause
The Confrontation Clause of the Sixth Amendment affords the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068 (1965); Avincola v. Stinson, 60 F. Supp.2d 133, 153 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.). The primary purpose of the Confrontation Clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. E.g., Douglas v. Alabama, 380 U.S. at 418-19, 85 S.Ct. at 1076-77; Mitchell v. Hoke, 930 F.2d 1, 2 (2d Cir. 1991); Avincola v. Stinson, 60 F. Supp.2d at 153. However, not all out-of-court statements are excluded by the Confrontation Clause.
In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980), the Supreme Court articulated a test governing the admission of hearsay against a criminal defendant under the Confrontation Clause:
[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539.
Accord, e.g., Lilly v. Virginia, 527 U.S. 116, 124, 119 S.Ct. 1887, 1894 (1999); Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3146 (1990); United States v. Moskowitz, Nos. 99-1745, 99-1749, 2000 WL 770534 at *2 (2d Cir. May 25, 2000); Latine v. Mann, 25 F.3d 1162, 1166 (2d Cir. 1994), cert. denied, 514 U.S. 1006, 115 S.Ct. 1319 (1995); United States v. Petrillo, 60 F. Supp.2d 217, 218 (S.D.N.Y. 1999).
In this case, Gordon's unavailability, a product of his invocation of his Fifth Amendment rights (Tr. 3-4), is not disputed. See e.g., Latine v. Mann, 25 F.3d at 1166 ("A declarant is unavailable for purposes of Confrontation Clause analysis if he invokes his Fifth Amendment privilege against self-incrimination and refuses to testify at trial.") (citing cases). Resolution of the case turns, therefore, on whether Gordon's two taped statements bore adequate "indicia of reliability" under Ohio v. Roberts, either by (1) falling within a firmly-rooted hearsay exception or (2) by exhibiting "'particularized guarantees of trustworthiness' such that adversarial testing would be expected to add little, if anything, to the statements' reliability." United States v. Gallego, 191 F.3d 156, 167 (2d Cir. 1999) (quoting Lilly v. Virginia, 527 U.S. at 124, 119 S.Ct. at 1894), cert. denied, 528 U.S. 1127, 120 S.Ct. 961 (2000); see also cases cited in fn. 11.
B. The New York Court of Appeals' Confrontation Clause Analysis
After admitting Gordon's tape recorded October 20, 1990 statement under the Hillmon state-of-mind hearsay exception, People v. James 93 N.Y.2d 620, 628-36, 695 N.Y.S.2d 715, 718-24 (1999), and admitting Gordon's October 23, 1990 statement under the declaration against penal interest hearsay exception, id. at 636-40, 695 N.Y.S.2d at 724-27, the New York Court of Appeals, in a separate section of its opinion, engaged in its Confrontation Clause analysis. People v. James, 93 N.Y.2d at 641-43, 695 N.Y.S.2d at 727-29. The New York Court of Appeals conceded that the Supreme Court has not held that either statements against penal interest or statements of future intent — the bases of admission of Gordon's two statements — "are among the firmly rooted hearsay exceptions." Id. at 641, 695 N.Y.S.2d at 728. The New York Court of Appeals went on to catalog federal appellate decisions (but none from the Second Circuit) finding that the statement against penal interest exception is firmly rooted. Id. at 641-42, 695 N.Y.S.2d at 728. Next, the New York Court of Appeals surveyed federal and state decisions (again, none from the Second Circuit) that found the "state of mind" exception to be firmly rooted. People v. James, 93 N.Y.2d at 642, 695 N.Y.S.2d at 728.
The New York Court of Appeals held that because both of Gordon's statements contained "particularized guarantees of trustworthiness," it did not have to determine if "these hearsay exceptions are 'firmly rooted' for purposes of Confrontation Clause analysis." People v. James, 93 N.Y.2d at 647, 695 N.Y.S.2d at 728. Specifically, the New York Court of Appeals noted that Gordon's statements were: (i) not made in a custodial setting, (ii) made to a "trusted friend," (iii) "unsolicited and spontaneous," and (iv) "truly self-inculpatory." Id. at 643, 695 N.Y.S.2d at 729. In the view of the New York Court of Appeals:
Neither statement evinces any attempt to shift the blame to another person and Gordon had no apparent motive, when talking to Lebron, to fabricate. Indeed, Gordon's mental state at the time he made these statements further supports their reliability. He made the pre-meeting statement to inform Lebron, in whom he had a romantic interest, of a meeting to take place at his home that evening, surely because he wanted her to participate. As to the October 24 [sic] post-meeting statement, Gordon was in a desperate situation and was clearly motivated by his desire to convince Lebron to get the papers into trusted hands. All of the events took place within a four-day period, concerning matters which must have been vividly emblazoned in Gordon's memory.
The New York Court of Appeals' opinion did not mention Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887, 1899 (1999), in which a plurality of the Supreme Court declined to find that the statement against penal interest hearsay exception was firmly rooted. More specifically, the plurality held that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Id. The Second Circuit has reiterated that the question remains an open one. See United States v. Wilson, No. 00-1042, 2000 WL 778021 at *4 (2d Cir. June 15, 2000), cert. denied, 121 S.Ct. 343 (2000); United States v. Moskowitz, Nos. 99-1745, 99-1749, 2000 WL 770534 at *2 (2d Cir. May 25, 2000), cert. denied, 121 S.Ct. 571 (2000); United States v. Gallego, 191 F.3d 156, 167-68 n. 5 (2d Cir. 1999), cert. denied, 528 U.S. 1127, 120 S.Ct. 961 (2000).
The Second Circuit at least appears to agree that the state of mind exception is "firmly rooted." See Barber v. Scully, 731 F.2d 1073, 1075 (2d Cir. 1984) ("State of mind testimony is a recognized exception to the hearsay rule, see Fed.R.Evid. 803(3), and 'reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.'") (quoting Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539). The context of Barber, however, was a statement of present fear, not of future intent to do an act. Barber v. Scully, 731 F.2d at 1074 (neighbor of murder victim testified that on the day of the murder, the victim said she was afraid of Barber).
Id. Thus, the New York Court of Appeals concluded, Gordon's two tape-recorded statements contained particularized guarantees of trustworthiness and James' "constitutional rights to be confronted by the witnesses against him were not violated" by their admission. Id.
II. THE NEW YORK COURT OF APPEALS' CONFRONTATION CLAUSE RULING, EVEN IF ERRONEOUS, IS NOT AN UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT
Before the Court can determine whether James is entitled to federal habeas relief from the New York Court of Appeals' decision upholding the admission into evidence of Gordon's two tape-recorded statements under the Confrontation Clause, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
A. The AEDPA Review Standard
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
Accord, e.g., Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.).
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. at 1523.
Accord, e.g., Washington v. Shriver, 240 F.3d 101, 108 (2d Cir. 2001); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Clark v. Stinson, No. 97-2885, 214 F.3d 315 (table), 2000 WL 710044 at *4 (2d Cir. June 1, 2000), cert. denied, 121 S.Ct. 865 (2001); Ventura v. Artuz, 2000 WL 995497 at *6; Mendez v. Artuz, 2000 WL 722613 at *22.
Accord, e.g., Ventura v. Artuz, 2000 WL 995497 at *6; Mendez v. Artuz, 2000 WL 722613 at *22; Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
Accord, e.g., Lurie v. Wittner, 228 F.3d 113, 127-28 (2d Cir. 2000), cert. denied, 121 S.Ct. 1404 (2001); Ventura v. Artuz, 2000 WL 995497 at *6; Mendez v. Artuz, 2000 WL 722613 at *22; Fluellen v. Walker, 2000 WL 684275 at *10.
In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S. Ct. at 1522.
Accord, e.g., Lurie v. Wittner, 228 F.3d at 128-29; Ventura v. Artuz, 2000 WL 995497 at *6; Mendez v. Artuz, 2000 WL 722613 at *22; see also Van Tran v. Lindsey, 212 F.3d 1143, 1159 (9th Cir.) (a state's application of federal law must be reversed when "independent review of the legal question does not merely allow [the reviewing court] ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves [the reviewing court] with a 'firm conviction' that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the [state] court adopted, was erroneous — in other words that clear error occurred"), cert. denied, 121 S.Ct. 340 (2000).
The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required, . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
B. James' Case Should be Analyzed Under the "Unreasonable Application" Clause
The parties agree that James' case is appropriately analyzed under the "unreasonable application" clause. (See Dkt. No. 14: James Br. at 25; Dkt. No. 15: State Supp. Br. at 4-5.) The New York Court of Appeals correctly identified the United States Supreme Court's Confrontation Clause precedents and the test that statements admitted into evidence under a hearsay exception must bear an adequate "indicia of reliability" which "can 'be met in either of two circumstances: where the hearsay statement "falls within a firmly rooted hearsay exception," or where it is supported by a "showing of particularized guarantees of trustworthiness."'" People v. James, 93 N.Y.2d 620, 641, 695 N.Y.S.2d 715, 727-28 (1999) (quoting Idaho v. Wright, 497 U.S. 805, 816, 110 S.Ct. 3139, 3147 (1990) (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539 (1980))). The New York Court of Appeals noted that a "Supreme Court majority has never held that statements against penal interest or statements of future intent are among the firmly rooted hearsay exceptions." People v. James, 93 N.Y.2d at 641, 695 N.Y.S.2d at 728. The New York Court of Appeals therefore analyzed whether Gordon's two challenged tape-recorded statements bore sufficient "particularized guarantees of trustworthiness." Id. at 642, 695 N.Y.S.2d at 728. Up to this point, the New York Court of Appeals decision was neither incorrect nor "unreasonable." (See, e.g., Dkt. No. 14: James Br. at 28-31.)
C. Application of the AEDPA's "Unreasonable Application" Clause to Gordon's October 20, 1990 Statement
James claims that the New York Court of Appeals unreasonably applied Supreme Court precedent by its interpretation of the Supreme Court's decision in Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909 (1892). (Dkt. No. 14: James Br. at 39-46.)
Hillmon involved a diversity action by Mrs. Hillmon against life insurance companies that had insured Mr. Hillmon. At trial, plaintiff presented evidence that Hillmon and Brown traveled to Crooked Creek, Kansas, where Hillmon was killed by an accidental gunshot. Mutual Life Ins. Co. v. Hillmon, 145 U.S. at 294, 12 S.Ct. at 912. The defense theory was that Hillmon was alive and defrauding the insurance companies, and that the body was of a Mr. Walters. The defense offered two letters from Walters to his loved ones in which Walters stated that he expected to travel with Hillmon. (Id.) The Supreme Court held that it was error to exclude the letters, "as evidence that, shortly before the time when other evidence tended to show that [Walters] went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon . . . . " Id. at 296, 12 S.Ct. at 913.
The New York Court of Appeals, noting that the issue was one of first impression for it, adopted the Hillmon rule "in admitting against criminal defendants (upon establishment of an appropriate foundation) the statements of a declarant's intention to perform acts entailing the participation jointly or cooperatively of the nondeclarant accused." People v. James, 93 N.Y.2d 620, 628, 632, 695 N.Y.S.2d 715, 718-19, 721 (1999).
James considers the New York Court of Appeals' decision to be an unreasonable application of Hillmon because, James claims, the October 20 Statement was used as proof not of what Gordon (the declarant, equivalent to Walters in Hillmon) intended to do but of what James (equivalent to Hillmon in Hillmon) intended. (See Dkt. No. 14: James Br. at 42, 46.)
What this argument overlooks is that the Supreme Court's decision in Hillmon was a federal evidence decision, not a decision of Constitutional magnitude. The structure of the New York Court of Appeals' decision made clear that it adopted the Hillmon rule as a matter of New York evidence law, People v. James, 93 N.Y.2d at 628-36, 695 N.Y.S.2d at 718-24, and later in its opinion engaged in a separate Constitutional Confrontation Clause analysis, id. at 641-43, 695 N.Y.S.2d at 727-29. This habeas court has no authority to review the New York Court of Appeals' adoption of its version of the Hillmon hearsay exception as a matter of state evidence law. See cases cited at page 19 fn. 10 above. The only Constitutional issue is whether Gordon's October 20 statement is supported by a showing of particularized guarantees of trustworthiness. The Court therefore turns to that question.
James asserts that the "New York Court of Appeals' determination that Gordon lacked a motive to lie when making the [October 20] statements was patently unreasonable. . . . Gordon desperately wanted Lebron to come visit [his house on October 20, 1990] so he could pursue her sexually." (Dkt. No. 14: James Br. at 31.) James contends that Lebron's "ambivalence" about going to Gordon's house "is clear on the tape of the October 20th calls. Initially Lebron didn't say yes. She didn't say no. She fenced [and flirted] with Gordon. He needed to top the balance in his favor. It is when Lebron expressed doubts about coming that Gordon reassured her that others would be there — Sam and Dave." (Id. at 32-33.) James further argues that "[l]ike seducers from Don Juan forward, Gordon was going to say whatever he needed to say to lure Lebron to his house — including reassuring her that what he wanted to happen (a sexual encounter) would not happen because others (Sam and Dave) would be there to chaperone." (Id. at 34.) Thus, according to James, the October 20 Statement was not "so reliable 'that the test of cross-examination would be of marginal utility.'" (Id.)
The State's response is brief: "While petitioner speculates that Gordon's invitation cannot be considered reliable because he may have sought to lure Lebron to his apartment to engage in sex . . ., that that motive was not the reason for the statement is amply demonstrated by the presence of others in Gordon's apartment when Lebron arrived and that Gordon actually disclosed to the group which met at his apartment confidential test materials." (Dkt. No. 15: State Supp. Br. at 15.)
The Supreme Court has recognized that "[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial" because "the use of corroborating evidence to support a hearsay statement's particularized guarantees of trustworthiness would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result . . . at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility." Idaho v. Wright, 497 U.S. 805, 823, 110 S.Ct. 3139, 3150 (1990) (internal quotations omitted). Here, the trial court allowed the October 20 Statement to provide necessary corroboration to Lebron's testimony that James was at Gordon's house on October 20. Thus, the State's contention that James' presence (as testified to by Lebron) supports the reliability of the hearsay tape recording is not only an impermissible bootstrap but circular.
If it were free to do so, this Court would agree with James' argument that Gordon, who was "trying to get into [Lebron's] pants" (Tr. 1402, 1418-21, 1489, 1554) and who was flirting with Lebron in the October 20, 1990 telephone calls (see pages 4-9 above), might very well have told Lebron that James and Tarquini were coming to Gordon's house late that night, even if that were not true, to convince a hesitant Lebron that she would not be alone with Gordon. Having read in its entirety the trial testimony of the State's key witnesses, Officer Lebron and her boyfriend Detective Lohan, the transcripts of Gordon's tape-recorded statements and the trial transcript version of James' (and Tarquini's) grand jury testimony, and having reviewed most of the rest of the 3,500 page trial transcript, if I were on the jury I have serious doubts whether I would have found James guilty beyond a reasonable doubt. But the habeas court is not the jury. Similarly, if I were the state trial or appellate courts, I very well might have held Gordon's October 20 Statement not sufficiently reliable because his sexual interest in Lebron might be the explanation for his telling her others would be at his house late on a Saturday night. Again, however, the law is clear that there is a distinction between direct appeal and federal habeas review. While sympathetic to James' argument, this Court on habeas review cannot say that the New York Court of Appeals' finding, that Gordon's October 20 Statement bore sufficient indicia of reliability to satisfy the Confrontation Clause's requirements, even if erroneous, constitutes an unreasonable application of Supreme Court precedent, as would be required by the AEDPA as interpreted in Williams v. Taylor and its progeny before the Court would grant habeas relief. Moreover, as discussed in Point III below, the October 20 Statement is admissible under the co-conspirator hearsay exception.
Cf., e.g., Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984) ("The habeas court is not to substitute its view of the evidence for that of the jury."); Navarro v. Abrams, 99 Civ. 1954, 1991 WL 7399 at *3 (S.D.N.Y. Jan. 10, 1991) (Leval, D.J.) ("this court cannot substitute its own evaluation of the evidence for the jury, even in a case where it might be inclined to differ").
Accordingly, James' habeas claim as to Gordon's October 20 Statement should be denied.
D. Application of the AEDPA "Unreasonable Application" Clause to Gordon's October 23, 1990 Statement
The New York Court of Appeals upheld the admissibility of Gordon's October 23, 1990 statement — "Give the papers to fucking Joyce [Sellers] or Sam [James] or somebody, okay?" (10/23/90 Tape #2; see Tr. 601) — as a declaration against Gordon's penal interest. People v. James, 93 N.Y.2d 620, 636-41, 695 N.Y.S.2d 715, 724-27 (1999). Before the New York Court of Appeals, James "has not contested that Gordon's October 24 [sic] recorded telephone call to Lebron meets all four of the prerequisites of [New York] case law for admissibility as a declaration against penal interest." People v. James, 93 N.Y.2d at 637, 695 N.Y.S.2d at 724. Rather, James argued there, as he does here, that the trial court erred in not redacting James' name from Gordon's October 23 statement. See People v. James, 93 N.Y.2d at 637, 695 N.Y.S.2d at 725. (See also Dkt. No. 14: James Br. at 37, 46-53; Ex. I: James Ct. App. Br. at 36-45.) The New York Court of Appeals responded to James' redaction argument:
Defendant's contention is that the trial court committed reversible error in admitting Gordon's October 24 [sic] statement without redacting his and Sellers' names. He argues first that, under our precedents, redaction of the name of a nondeclarant defendant is always required because admissibility is strictly limited to the portion of the statement that inculpates the declarant and no other person. We have not, and should not adopt any per se rule requiring invariable redaction of the name of a co-perpetrator in any declaration against penal interest. The United States Supreme Court's decision in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 [(1994)], supra, teaches why such an iron-clad rule would unduly restrict the declaration against penal interest exception to the hearsay rule. In Williamson, the Supreme Court interpreted rule 804(b)(3) of the Federal Rules of Evidence (the hearsay exception for declarations against penal interest) much as our Court has established by common law, to limit admissibility to those portions of the hearsay statement which are actually self-inculpatory to the declarant.
* * * * *
Alternatively, defendant argues that, in this case, the specific naming of defendant as the requested recipient of Lebron's exam notes was not self-inculpatory of Gordon and therefore should have been redacted. We disagree. As the preceding discussion shows, a determination of whether the specific naming of defendant in Gordon's October 24 telephone conversation with Lebron constitutes a declaration against penal interest requires an assessment of the incriminatory potential of the instruction to give the papers to defendant and not to Lohan, in the situational context in which it was made. That context was Gordon's urgent need to have Lebron's papers turned over to a reliable ally before Lohan got them from her. The papers constituted conclusive documentary proof that he had divulged the contents of the exam questions. Gordon was aware of Lohan's hostility because of his sexual overtures toward Lebron and feared that she had revealed the scheme for cheating on the examination. In the confrontation between Gordon and Lohan on October 24, Gordon admitted that Lebron's papers contained answers to the exam and implored Lohan not to turn the papers over to the Internal Affairs Bureau, because it would ruin him. When Lohan rejected his entreaties, Gordon threatened him . . .
It was immediately after that meeting that Gordon telephoned Lebron to instruct her not only to withhold her notes from Lohan — a personal enemy — but also to turn them over to defendant, or another trusted subordinate in the District One unit, or "somebody" — presumably someone within the same intimate circle. Surely, it was reasonably inferable by the trial court that Gordon's motive for requesting that the papers be released to the specific persons named was that they would be willing confederates in an obstruction of justice — the destruction of evidence of his official misconduct in disclosing the answers to the sergeant's promotional exam . . . .
Thus, it seems indisputable that the call and naming of defendant were indivisible components of the second set of Gordon's criminality, the attempted cover-up of his earlier crime. The naming of defendant, a friend and participant in the first crime, was, therefore, unequivocally self-inculpatory and hence, admissible as a declaration against penal interest. By no means could Gordon's naming of defendant as the requested recipient of Lebron's papers be considered neutral (and therefore not against penal interest), because Gordon did not expect defendant to be a neutral party if he obtained possession of the papers.
People v. James, 93 N.Y.2d at 637-40, 695 N.Y.S.2d at 625-27. The New York Court of Appeals concluded that "[f]or all these reasons, admission of the October 24 statement in unredacted form was well within the 'sound discretion' of the trial court . . . ." People v. James, 93 N.Y.2d at 641, 695 N.Y.S.2d at 727.
While James challenges the New York Court of Appeals' decision, here again, as with Gordon's October 20 Statement, it is clear that the Court of Appeals' decision was based on its interpretation of the State's common law evidence rules — a subject not reviewable by a habeas court. (See cases cited at page 19 fn. 10 above.)
Thus, even if James were correct (Dkt. No. 14: James Br. at 50-53) that the New York Court of Appeals unreasonably applied the U.S. Supreme Court's decision in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431 (1994), that would not be a ground for habeas relief. The New York Court of Appeals applied Williamson as consistent with State cases interpreting the declaration against penal interest hearsay exception. People v. James, 93 N.Y.2d at 638-39, 695 N.Y.S.2d at 725-26. It is clear that Williamson involved interpretation of Federal Rule of Evidence 804(b)(3), not a Constitutional decision, and thus is not binding on the states. See Williamson v. United States, 512 U.S. at 605, 114 S.Ct. at 2437 ("In light of this disposition, we need not address Williamson's claim that the statements were also made inadmissible by the Confrontation Clause . . . . ").
The New York Court of Appeals' constitutional analysis — the only thing that this habeas court can review — is in the separate section of its decision headed "Confrontation Clause Analysis." People v. James, 93 N.Y.2d at 641-43, 695 N.Y.S.2d at 727-29. As discussed above, the New York Court of Appeals relied on the correct Supreme Court precedent, including Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139 (1990), and Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980), and the correct test, i.e., whether the hearsay statement bore adequate indicia of reliability.
The New York Court of Appeals held that Gordon's October 23 "post-meeting statement was self-inculpatory because it clearly demonstrated Gordon's motive to conceal or destroy the evidence of his earlier crime. Thus, the statement, in and of itself, incriminated Gordon by establishing his attempt to suppress physical evidence by his accomplices' acts of concealment or destruction (see Penal Law § 215.40) . . . . Gordon was in a desperate situation and was clearly motivated by his desire to convince Lebron to get the papers into trusted hands." People v. James, 93 N.Y.2d at 643, 695 N.Y.S.2d at 729.
James presents another interpretation of the October 23 Statement:
When Gordon made the statement on October 24 [sic], 1990, he was in full panic mode. He knew that his scheme to seduce Lebron by helping her pass the sergeant's exam was in danger of being exposed. Lohan had found out about Lebron's visit to Gordon's house, and Lohan was furious. He had the strongest motive imaginable to want to ruin Gordon — hurt pride and jealousy. Although Gordon had pleaded with Lohan not to take the test materials to IAD, Gordon must have feared that Lohan would gladly do so if he could find a way to expose Gordon and still protect Lebron. The four pages of handwritten notes that Lebron had made on October 20, were the proof Lohan needed to corroborate Lebron's claims against Gordon. Gordon's entire professional career was at stake. He was facing dismissal — and prosecution. He had to get those papers back.
By that point, Lebron and Gordon were at least partially adversarial. Lebron, like Gordon, had an incentive to hide the cheating scandal. However, she also had powerful reasons to be angry with Gordon — and to distrust him. He had seriously jeopardized her relationship with Lohan, and he had threatened both her and Lohan. Under these circumstances, the method that was most likely to succeed in the goal of getting the papers back was to tell Lebron to give them to someone she trusted — like her friends Sam or Joyce. This is so, regardless of whether Sam or Joyce "or somebody else" had ever agreed to accept the papers, or would ever agree to do so. Gordon could worry about them — Sam or Joyce or somebody — later. Lebron and Lohan had to be contained immediately. Gordon had a compelling motive to lie to Lebron and no reason to tell her the truth.
(Dkt. No. 14: James Br. at 35-36.)
James' legal argument relies primarily on Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999). (See Dkt. No. 14: James Br. at 46-47.) In Lilly, the Supreme Court held that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Lilly v. Virginia, 527 U.S. at 134, 119 S.Ct. at 1899. The Supreme Court in Lilly recognized, however, that such statements may be constitutionally admissible if the circumstances surrounding the statement bore particularized guarantees of trustworthiness. Id. at 135-37, 119 S.Ct. at 1899-1901.
The Court notes that Lilly was a direct appeal from the decision of the Virginia Supreme Court and not a decision on a habeas corpus petition.
Thus, the appropriate question under Lilly is whether that part of Gordon's October 23 Statement mentioning Sam James bore particularized guarantees of trustworthiness. The New York Court of Appeals held that it did.
James' factual argument has some appeal, although in the context of the October 20 Statement and Lebron's testimony that James was at the October 20 study-cheating session at Gordon's house, the reference to give the papers to Sam James was not merely the name of someone Lebron trusted. In any event, even if the New York Court of Appeals' application of Supreme Court law to the facts here differed from the conclusion this Court might have reached in a direct appeal and even if it is erroneous, this habeas court cannot say that the New York Court of Appeals' decision as to the October 23 Statement involved an unreasonable application of Supreme Court precedent. For that reason, James' habeas challenge to the admission of Gordon's October 23 Statement should be denied. And as discussed in Point III below, the October 23 Statement is properly admissible under the co-conspirator hearsay exception.
III. GORDON'S STATEMENTS ALSO ARE ADMISSIBLE UNDER THE CO-CONSPIRATOR HEARSAY EXCEPTION
In Point II, this Court concluded that the New York Court of Appeals' decision admitting Gordon's October 20 and October 23 Statements was not an unreasonable application of Supreme Court precedent. But even if the New York Court of Appeals' decision were found to be unreasonable, there is another basis, advanced by the State (Dkt. No. 7: State Br. at 10 n.*; Dkt. No. 15: State Supp. Br. at 6-7), to uphold the tapes' admission and thus James' conviction — the co-conspirator hearsay exception.
The co-conspirator hearsay exception was raised by the parties in State court (e.g., Ex. J: State Ct. App. Br. at 34-37, 56-60; Ex. H: James Ct. App. Reply Br. at 3-19), but not addressed by the New York Court of Appeals (or the First Department). Because the New York courts never passed on whether Gordon's statements were constitutionally admissible under the Confrontation Clause as co-conspirator declarations, this Court can and should engage in a de novo review of that question, unrestricted by the AEDPA review standard. E.g., Boyette v. Lefevre, 246 F.3d 76, 88-89 (2d Cir. 2001); Washington v. Schriver, 240 F.3d 101, 110 (2d Cir. 2001) ("Because the petitioner's due process claim was not adjudicated on the merits, we apply the pre-AEDPA standard of review. Pure questions of law and mixed questions of law and fact will be reviewed de novo."); Fernandez v. Breslin, 00 Civ. 7931, 2001 WL 197034 at *2 (S.D.N.Y. Feb 27, 2001); Clark v. Greiner, No. 97-CV-2483, 2001 WL 135732 at *3 (E.D.N.Y. Feb. 2, 2001). A habeas court is free to uphold a conviction on grounds that were not ruled upon by the State courts. See, e.g., Latine v. Mann, 25 F.3d 1162, 1165 n. 2 (2d Cir. 1994) ("The failure, however, of state prosecutors to raise a particular argument below 'does not mean that federal courts lack power to consider arguments by the State that bear on whether a prisoner is in fact in custody in violation of the Constitution or laws . . . of the United States.'"); Pinkney v. Keane, 920 F.2d 1090, 1098-99 (2d Cir. 1990) (district court in habeas proceeding may reexamine federal ruling in state court in favor of defendant, including arguments for affirmance on alternate basis than that of the state courts), cert. denied, 501 U.S. 1217, 111 S.Ct. 2824 (1991).
See also, e.g., Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir.) ("When a petitioner has properly presented a claim to the state court but the state court has not adjudicated the claim on the merits . . ., our review of questions of law and mixed questions of law and fact is de novo," citing Jones v. Jones, 163 F.3d 285, 299-300 (5th Cir. 1998), cert. denied, 528 U.S. 895, 120 S.Ct. 224 (1999)), aff'd, 528 U.S. 225, 120 S.Ct. 727 (2000); Goins v. Angelone, 52 F. Supp.2d 638, 676 n. 32 (E.D.Va. 1999), appeal dismissed, 226 F.3d 312 (4th Cir.), cert. denied, 121 S.Ct. 649 (2000).
A. The Co-Conspirator Hearsay Exception
Under federal law, an out-of-court statement "by a coconspirator of a party during the course and in furtherance of the conspiracy" is not hearsay, even when offered to prove the truth of the matter asserted. Fed.R.Evid. 801(d)(2)(E); see also, e.g., Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778 (1987). Similarly, under New York law, "it has long been settled that the declarations of one coconspirator made in the course and furtherance of a conspiracy are admissible against all other coconspirators as an exception to the general rule against hearsay." People v. Sanders, 56 N.Y.2d 51, 62, 451 N.Y.S.2d 30, 34 (1982). The Supreme Court has held that the "co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that, under this Court's holding in [Ohio v.] Roberts[, 448 U.S. 56, 100 S.Ct. 2531 (1980)], a court need not independently inquire into the reliability of such statements." Bourjaily v. United States, 483 U.S. at 183, 107 S.Ct. at 2783. The relevant issue for Confrontation Clause purposes on this habeas review therefore is solely whether Gordon's October 20 and 23 statements were admissible under federal law governing co-conspirator statements. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996) ("even if admission of [the co-conspirator's statement] violated New York law — which unlike federal law requires independent indicia of reliability for a co-conspirator's statement — the statement does not offend the federal Confrontation Clause if it falls within Rule 801(d)(2)'s coconspirator exception"), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Pena v. Miller, 94 Civ. 2820, 1997 WL 278051 at *3 (S.D.N.Y. May 23, 1997) ("Although the case was tried in New York State court, obviously federal constitutional standards apply," as set out in Fed.R.Evid. 801(d)(2)(E), citing Glenn v. Bartlett.).
The New York rule differs in that the proponent of the co-conspirator declaration must show its reliability, in addition to the other foundational requirements. People v. Sanders, 56 N.Y.2d at 63-65, 451 N.Y.S.2d at 35-37; accord, e.g., People v. Persico, 157 A.D.2d 339, 345-49, 556 N.Y.S.2d 262, 266-69 (1st Dep't) (New York Confrontation Clause requires reliability showing, even though federal constitution does not), appeal denied, 76 N.Y.2d 895, 561 N.Y.S.2d 558 (1990). That requirement, however, is one of state law, not a federal constitutional issue.
B. Gordon's Statements were Admissible under the Federal Rule Regarding Co-Conspirator Statements
In order to lay a proper foundation for the admission of hearsay statements by a co-conspirator, the court must "find by a preponderance of the evidence 'first, that a conspiracy existed that included the defendant and the declarant, and second, that the statement was made during the course of and in furtherance of that conspiracy.'" United States v. Padilla, 203 F.3d 156, 161 (2d Cir.) (quoting United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999), cert. denied, 528 U.S. 1114, 120 S.Ct. 931 (2000)), cert. denied, 121 S.Ct. 86 (2000). James concedes that this is the federal standard. (Dkt. No. 16: James Reply Br. at 3.) Moreover, "while the district court may consider the hearsay statement itself to determine the existence of a conspiracy, . . . 'there must be some independent corroborating evidence of the defendant's participation in the conspiracy.'" United States v. Padilla, 203 F.3d at 161 (quoting United States v. Tellier, 83 F.3d 578, 580 (2d Cir.), cert. denied, 519 U.S. 955, 117 S.Ct. 373 (1996)). Again, James agrees that this is the correct legal standard. (Dkt. No. 16: James Reply Br. at 2.) There is no requirement that the conspiracy be charged in the indictment in order to admit the out-of-court statements. See, e.g., United States v. Gigante, 166 F.3d at 82; United States v. Orena, 32 F.3d 704, 713 (2d Cir. 1994); United States v. Barnes, 604 F.2d 121, 156 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833 (1980); Pena v. Miller, 94 Civ. 2820, 1997 WL 278051 at *3 (S.D.N.Y. May 23, 1997) ("There is no requirement that a conspiracy be pleaded."); SEC v. Tome, 638 F. Supp. 629, 634 (S.D.N.Y. 1985) (Pollack, D.J.); People v. Ardito, 86 A.D.2d 144, 147, 449 N.Y.S.2d 202, 204 (1st Dep't 1982), aff'd, 58 N.Y.2d 842, 460 N.Y.S.2d 22 (1983).
Accord, e.g., Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778 (1987); United States v. Coughman, Nos. 96-1303, 96-1329, 96-1499, 96-1492, 116 F.3d 1472 (table), 1997 WL 349501 at *2 (2d Cir. June 25, 1997); United States v. McDougall, No. 97-CR-406, 1998 WL 160834 at *2 (N.D.N.Y. Apr. 3, 1998) (Pooler, D.J.).
Accord, e.g., United States v. Diaz, 176 F.3d 52, 83 (2d Cir.), cert. denied, 528 U.S. 875, 120 S.Ct. 181 (1999); United States v. Gigante, 166 F.3d at 82; see also, e.g., Bourjaily v. United States, 483 U.S. at 181, 107 S.Ct. at 2781.
In this case, the prosecution presented evidence sufficient to prove that it was more likely than not that a conspiracy to commit official misconduct existed and that James and Gordon were members of it. New York Penal Law § 195.00 provides that a "public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit . . . [h]e commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized." N.Y. Penal Code § 195.00(1). Evidence at trial showed that Gordon, James and Lebron agreed that Gordon would "commit an act relating to his office but constituting an unauthorized exercise of his official functions" — Gordon would provide James, Lebron and others with information about the test questions Gordon prepared that would be on the upcoming sergeant's exam. The evidence also was sufficient to show that Gordon committed the unauthorized act with intent to obtain a benefit for James, Lebron and the others by improving their test scores, and a benefit for himself by currying favor with his friends (including, possibly, advancing his sexual interest in Lebron). N.Y. Penal Law § 10.00(17) (defining "benefit" as including gain or advantage to a third party "pursuant to the desire" of the defendant); see People v. Feerick, 93 N.Y.2d 433, 448-49, 692 N.Y.S.2d 638, 645-46 (1999) (definition of benefit under § 190.00 includes "any desired gain or advantage to third parties"); People v. Esposito, 160 A.D.2d 378, 379, 554 N.Y.S.2d 16, 17 (1st Dep't) (public servant must act with "intent to obtain a benefit for himself or another"), appeal denied, 76 N.Y.2d 787, 559 N.Y.S.2d 992 (1990).
Gordon was convicted of official misconduct, New York Penal Law § 195.00, and obstruction of civil service rights, New York Civil Service Law § 106. (See pages 3 14 above.) It is not clear that a conspiracy could be prosecuted based on obstruction of civil service rights because that crime, the substance of which is "wilfully furnish[ing] to any person any special or secret information for the purpose of . . . improving" the prospects of a person taking a civil service exam, seems to require the assent of two persons for its commission — the person furnishing the secret information and the person receiving it. Under "Wharton's Rule," no conspiracy prosecution lies based on an agreement between two people when the "crime is of such a nature as to necessarily require the participation of two persons for its commission." Iannelli v. United States, 420 U.S. 770, 773 n. 5, 95 S.Ct. 1284, 1288 n. 5 (1975); accord e.g., United States v. Sperling, 560 F.2d 1050, 1055-56 (2d Cir. 1977). Since, however, official misconduct does not require the participation of two people, the Court need (continued. . .) not decide whether Wharton's Rule would apply to New York Civil Service Law § 106.
James contends that, at the time of the October 20 Statement, no conspiracy had yet formed between James and Gordon. (Dkt. No. 16: James Reply Br. at 3-6.) This argument breaks down into two components: (1) the meeting participants did not know the conduct they were about to engage in was illegal until they arrived at the late-night meeting and Gordon provided actual test questions, and (2) in any event, James was not a member of the conspiracy at the time Gordon made his October 20 Statement to Lebron. (Id.) Although both points give the Court pause, in the end they fail.
Whether or not the officers — James, Lebron and others — knew that Gordon was going to give them the exact test questions, they were well aware that they were attending an exclusive late-night study session hosted by a supervisor who prepared the test's technical section, which required study in order to pass. This agreement to meet was enough to constitute conspiracy to violate the broadly worded official misconduct statute, N.Y. Penal Law § 195.00, whether the study session involved actually handing out the questions or merely providing unauthorized guidance and favoritism to certain officers. Cf. People v. Lynch, 176 Misc.2d 430, 433-34, 674 N.Y.S.2d 894, 896-97 (Rockland County Ct. 1998). Even if Gordon had not shown them the test but merely told them "what to study" (10/20/90 tape #1), James' conduct would have shown an intent to benefit from the meeting and deprive others not privy to the meeting of a fair shot at the exam; dissemination of a test-writer's knowledge of the examination questions, even if the exact questions themselves are not recited word for word, is enough to constitute an unauthorized exercise of Gordon's official functions. Gordon obviously knew that his conduct was prohibited, since he signed a "confidentiality" agreement. (See Ex. J: State Ct. App. Br. at 6, quoting PX 12, quoted at page 5 above.) And James admitted in his grand jury testimony that it was "common sense" that Gordon was not to disclose any information he learned from preparing the test and that Gordon's contact with officers "was to be a limited one because obviously of what he was doing" in preparing the test. (Tr. 2706-07.) Therefore, a conspiracy to violate N.Y. Penal Law § 195.00 was in place as soon as the first invitation to attend Gordon's study session was accepted.
The only New York Court of Appeals case interpreting conspiracy to violate N.Y. Penal Law § 195.00, People v. Powell, 63 N.Y. 88 (1875), is consistent with this finding. The Court in Powell reversed a conviction where conspiracy to violate official misconduct law was based on an omission of a duty required by statute. The Court found that there was no conspiracy because the omission was merely an oversight and the participants did not have an evil motive: "[I]t is not enough that it appears that the act which was the object of the agreement was prohibited. The confederation must be corrupt. The agreement must have been entered into with an evil purpose, as distinguished from a purpose simply to do the act prohibited in ignorance of the prohibition." Id. at 92. Here, of course, the conspirators' evil purpose — to manipulate promotions to the rank of sergeant — was clear.
As to the second point, there is plenty of evidence that by the time of the meeting late in the evening of October 20, 1990, James had joined the conspiracy: Lebron testified in detail as to how the conspiracy worked and who belonged to it — specifically, that Gordon invited her to a "study" session and that on October 20, she attended such a session at Gordon's house, along with James and other officers, and that Gordon had them copy actual test questions. (See pages 4-9 above.) Lampone, a disinterested witness, corroborated key elements of Lebron's testimony, i.e., the October 20 meeting at Gordon's house attended by Gordon, Lebron and three African-American police officers. (See page 9 above.) James was identified as a member of the conspiracy not only by Gordon's out-of-court statements implicating him, but also by Lebron's testimony and additional circumstantial evidence. (See, e.g., pages 1-2, 9, 12 above.)
Indeed, there was evidence that James was a member of the conspiracy shortly before the October 20 Statement was made. The main piece of evidence for this proposition is the October 20 Statement itself: Gordon, on tape, essentially said that "Sam" James had already agreed to attend the study meeting, and thus had conspired with Gordon to violate N.Y. Penal Law § 195.00. (10/20/90 Tape #1.) This is corroborated by the fact that Gordon called James on October 19 and James' grand jury admission that he might have been invited to the study session (while claiming that he did not go). (See, e.g., pages 13 15 fn. 8 above.) The totality of the circumstances also corroborates the inference that James was a participant in the agreement shortly before the October 20 meeting since, at least according to Lebron, James did ultimately attend the meeting.
Moreover, even if James had not yet joined the conspiracy at the time of Gordon's October 20 Statement — that is, if Gordon said James would be present before James agreed to come to the study session — James became a member of the conspiracy within a couple of hours after the statement was made. The cases in this Circuit do not appear to require that the matter be parsed so finely as James suggests: even if James only joined the conspiracy shortly after Gordon's statement was made, the conspiracy still "included" him for purposes of the co-conspirator hearsay rule. See, e.g., United States v. Gigante, 166 F.3d at 83 (admitting out-of-court statement against a Mafia boss on the ground that such a leader was necessarily included in any major conspiracy in which the organization was involved); United States v. Orena, 32 F.3d at 711-13.
Both challenged statements were in the course and in furtherance of the conspiracy. Gordon's October 20 Statement was made in order to arrange a meeting at which the unlawful dissemination of test questions would occur. This clearly furthered the conspiracy. See, e.g., United States v. Gigante, 166 F.3d at 82 (statement seeking to induce cooperation of a coconspirator may be in "in furtherance of" the conspiracy); United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir. 1993) (same). As to Gordon's October 23 Statement, the Court rejects James' argument that any conspiracy was over before October 23. (See Dkt. No. 16: James Reply Br. at 7.) The October 23 Statement was made as part of the ongoing conspiracy to obtain better scores on the 1991 sergeant's exam. That conspiracy did not end after the October 20 "study" session but continued until the test was given in February 1991, i.e., when the conspiracy's aim would be achieved. Preventing exposure of the scheme — by keeping the jealous Lohan from getting Lebron's notes and blowing the whistle to Internal Affairs — was in the course of and in furtherance of the conspiracy (because if the conspiracy were revealed the test would be changed) rather than an attempt to prevent detection and punishment of a completed conspiracy. Compare, e.g., United States v. Arrington, 867 F.2d 122, 130 (2d Cir. 1988) (statements made in attempt to "silence witnesses" in an ongoing narcotics conspiracy "furthers the goals of the conspiracy"), cert. denied, 493 U.S. 817, 110 S.Ct. 70 (1989); with, e.g., Krulewitch v. United States, 336 U.S. 440, 441-42, 69 S.Ct. 716, 717-18 (1949) (statement of co-conspirator urging witness not to reveal conspiracy, long after conspiracy had ended, is not "in furtherance of" the conspiracy because basic aims of conspiracy had already been achieved).
Since the statements were made in the course and in furtherance of a conspiracy whose existence and inclusion of James and Gordon were proven by a preponderance of the evidence, they were admissible under federal law. Therefore, no Confrontation Clause violation occurred, even if the New York Court of Appeals rulings on the state of mind and against penal interest exceptions were found to be both erroneous and an unreasonable application of Supreme Court precedent.
CONCLUSION
For the reasons set forth above, James' petition for a writ of habeas corpus should be DENIED.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).