Opinion
99 CR. 807 (RWS).
September 29, 2000.
MEMO OPINION
Luis Taveras pled guilty on August 21, 2000, before the Honorable Frank Maas, United States Magistrate Judge, to count one of the superseding indictment in this case, pursuant to which he was charged with conspiracy in violation of 18 U.S.C. § 371.
The Government seeks to introduce into evidence certain portions of Taveras' plea allocution as a statement of an unavailable declarant made against the declarant's penal interest, pursuant to Federal Rule of Evidence 804(b)(3). The portions sought to be admitted are set forth in the Government's letter to the Court of September 8, 2000. This evidence is said to be probative of: (1) the existence of a conspiracy to defend the United States, to obstruct justice, and to make false statements; and (2) what Taveras did in order to further the objects of that conspiracy. Plea allocutions of co-conspirators, redacted to exclude references to the defendant on trial, have been admitted for such purposes in this Circuit. See. e.g.,United States v. Moskowitz, 215 F.3d 265 (2d Cir. 2000); United States v. Gallego, 191 F.3d 156 (2d Cir. 1999); United States v. Scopo, 861 F.2d 339 (2d Cir. 1988).
Defendants Christian Del Rosario and Humberto Del Rosario seek to introduce into evidence certain other portions of Taveras' plea allocution, namely, p. 12 line 18 through p. 13 line 11, p. 13 lines 14-23, p. 14 line 13 through p. 15 line 14, p. 17 lines 4-14 and lines 17-21, and p. 17 line 23 through p. 18 line 16 of the plea allocution transcript. This motion is also made pursuant to Rule 804(b)(3), which provides in relevant part that "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."
Each of these motions will be addressed in turn.
1. The Government's Motion
The Second Circuit has yet to determine whether evidence that is admissible under Rule 804(b)(3) qualifies as a "firmly rooted hearsay exception" for Confrontation Clause purposes. See Gallego, 191 F.3d at 167. Therefore, the Government must show both that the material it seeks to introduce satisfies Rule 804(b)(3), and that it bears sufficient particularized guarantees of trustworthiness to satisfy the Confrontation Clause. See Gallego, 191 F.3d at 168; Lilly v. Virginia, 527 U.S. 116 (1999).
Rule 804(b)(3) Unavailability. The Government represents that Taveras' counsel has advised the Government that Taveras, if called as a witness at the trial in this matter, will invoke his Fifth Amendment right against self-incrimination and refuse to testify. This representation is a proper basis upon which the court may determine that a witness is unavailable within the meaning of Rule 804(b)(3). See United States v. Williams, 927 F.2d 95, 98 (2d Cir. 1991), cert. denied, 502 U.S. 911 (1991). Nor has this representation been disputed or contradicted. Therefore, Taveras is unavailable within the meaning of Rule 804(b)(3).
Rule 804(b)(3) Statement Against Penal Interest. The Second Circuit has recognized that a guilty plea allocution generally qualifies as a statement against penal interest, for the obvious reason that it exposes the declarant to criminal liability. See Gallego, 191 F.3d at 167-68; Scopo, 861 F.2d at 348. Therefore, to the extent that Taveras' plea allocution subjects him to criminal liability, it is considered a statement against penal interest within 804(b)(3). See Scopo, 861 F.2d at 348.
Confrontation Clause. The totality of the circumstances surrounding the statement offered here provide sufficient "particularized guarantees of trustworthiness that the court can conclude that adversarial testing would add little to its reliability." United States v. Matthews, 20 F.3d 538, 545 (2d Cir. 1994). First, the fact that the statement subjected Taveras to criminal liability, including the possibility of serving time in prison, is itself a strong indicator of its reliability. See Williamson v. United States, 512 U.S. 594, 605 (1994); Gallego, 191 F.3d at 168. Second, Taveras was represented by counsel. See United States v. Moskowitz, 215 F.3d 265, 269 (2d Cir. 2000) (per curium); Gallego, 191 F.3d at 168. Third, he made the statements under oath before a Magistrate Judge. See Moskowitz, 215 F.3d at 269; Gallego, 191 F.3d at 168.
Therefore, the statements which the Government seeks to introduce will be admitted pursuant to Rule 804(b)(3).
Reference to Christian Del Rosario
It is noted that in the statements offered, Taveras does refer to one of the defendants on trial here, Christian Del Rosario, in the context of stating that there was an agreement to try and get a Rule 35 sentence reduction for Mr. Del Rosario. Christian Del Rosario has not objected to this reference. In any case, it is properly admitted because it goes to the purpose of the alleged scheme and does not implicate Christian Del Rosario as to any wrongdoing.
2. The Del Rosarios' Motion
The Del Rosario defendants, as stated previously, seek to introduce into evidence certain additional portions of the Taveras allocution. The Government objects to this motion on the ground that the statements sought to be introduced are not self-inculpatory within the meaning of the rule, and are not sufficiently corroborated.
Self-inculpatory statements. Rule 804(b)(3) defines a statement against interest, including penal interest, as one which "a reasonable person in the declarant's position would not have made . . . unless believing it to be true." The statements sought to be admitted here were made during Taveras' first two attempts to allocute to his guilty plea. The Government has argued that because Magistrate Judge Maas determined that these statements did not satisfy the standard for an acceptable plea, they were objectively not against Taveras' penal interest and therefore are not admissible here. Under the rule, however, the issue is whether a reasonable person in the declarant's position would have considered the statements to be against his penal interest, i.e., self-inculpatory. See Fed.R.Evid. 804(b)(3). Having reviewed the statements, I conclude that the rule is satisfied. Taveras was asked what it was he did that made him guilty of a crime, and was making statements regarding his conduct and state of mind directed at answering that question. am satisfied that a reasonable person in Taveras' position would have believed the statements to be self-inculpatory. Taveras, or a reasonable person in his position, could not be expected to be familiar with the legal standard which Judge Maas would be applying to his plea, which I consider to be a different question.
This Court is aware of the Second Circuit and Supreme Court authority, which has arisen in the different but related context of attempts by the Government to introduce statements from a plea allocution, and which teaches that an entire plea allocution is not admissible merely because it contains some self-inculpatory statements. See Gallego, 191 F.3d at 168 n. 5 (citing Williamson v. United States, 512 U.S. 594, 600-01 (1994) in which a plurality of the Supreme Court stated in relation to admission of a confession that "the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory."). My ruling as to the Taveras statements is based on a finding that they are self-inculpatory rather than, for example, some kind of rule of completeness which is inapplicable here.
Corroboration. The Second Circuit has interpreted the "corroborating circumstances" requirement, under Rule 804(b)(3) as relating to both (1) the reliability of the declarant and (2) reliability of the statement itself. See United States v. Doyle, 130 F.3d 523, 543-44 (2d Cir. 1997). of course, the court does not have to conclude that the statements were "surely true, " because that is the role of the jury. Doyle, 130 F.3d at 543. On the other hand, there do have to be "clear indicia of their reliability." Doyle, 130 F.3d at 543.
Taveras' reliability at the time he made the statements is sufficiently corroborated by the nature of the statements and the circumstances surrounding the making of the statements, namely, that the statements were self-inculpatory, were made under oath to a judge, and with counsel present. See Doyle, 130 F.3d at 543 (corroboration of declarant focuses on his reliability when statement made).
The reliability of the statements is also corroborated by the circumstances of the statement, in that Taveras was making statements which were reasonably believed to be self-inculpatory, pursuant to his attempt to allocute to his guilty plea, was under oath, and had counsel present. See. e.g., United States v. Nagib, 56 F.3d 798, 805 (7th Cir. 1995) (looking to circumstances of plea allocution as corroboration). In addition, although because of the nature of the statements and the record evidence, counsel for the defense has been unable to point to other evidence in the record which corroborates the statements, it is important to note that the record evidence does not contradict them so as to render them untrustworthy. See Doyle, 130 F.3d at 544 (corroboration of truth of statement focuses on whether evidence in record supports or contradicts statement, or both) Nor does the record indicate that Taveras made the statements in order to gain anything for himself, or was otherwise improperly motivated. See Nagib, 56 F.3d at 798 (looking at whether statements made in attempt to get plea agreement or downward departure, and at whether declarant was related to other defendant in such a way that statements should be interpreted as improper attempt to help other defendant).
Therefore, the statements which the Del Rosario defendants seek to introduce will be admitted pursuant to Rule 804(b)(3).
It is so ordered.