MEMORANDUM OPINION AND ORDER
Stеven Camacho and Jaime Rodriguez were convicted of various racketeering acts
On July 10, 2001, the Court ordered the defendants and the government to submit supplemental briefs addressing the question of whether the Court has jurisdiction pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Having received the parties’ supplemental briefs, I now consider defendants’ motion. For the reasons that follow, I determine as a threshold matter that this Court does have jurisdiction. On the merits, I deny defendants’ request for a grant of judicial immunity, and I direct a hearing for the purposes of assessing whether testimony by Thomas regarding Cherry’s statements would be admissible and, if so, whether a new trial is required.
BACKGROUND
Camacho and Rodriguez were indicted on racketeering charges on May 25, 1994, along with multiple other defendants as part of the federal prosecution of members of the C & C gang, which operated in the Bronx. Early in the case, the government agreed to try Camacho and Rodriguez separately from the others, and accordingly they were severed from the primary case. After securing guilty pleas from numerous defendants and agreeing to additional severancеs, the government initially proceeded to trial against Angel Padilla, one of the founders of the C & C gang, and Ivan Rodriguez, the man accused of killing the other founder, Juan Calderon. Both Padilla and Ivan Rodriguez were convicted in May of 1995.
Camacho and Jaime Rodriguez were later tried pursuant to a superseding indictment dated February 12,1996. They were charged at trial with conspiracy to murder Hector Ocasio, the murders of Hector Oca-sio and Gilberto Garcia, and the attempted murder of Luis Garcia, all in aid of the C
&
C racketeering enterprise, in violation of 18 U.S.C. § 1959; they were also charged with a related firearms offense in violation of 18 U.S.C. § 924. A jury trial commenced on June 3, 1996. The government advanced the following theory of how the murders and attempted murder took place: After Calderon was killed, Padilla told the members of his security force to keep a low profile and brought in a new head of security, Hector Ocasio, who hired new security members. Soon, Padilla and several longtime members of his security force, including James Albizu, Joey Pillot, Trumont Williams, and Gregory Cherry,
1
began to distrust Ocasio. Ocasio had reduced weekly salaries and then cut several security members from the payroll. He also had given local drug dealers permis
According to the government’s theory, the plan to kill Ocasio was brought to fruition on January 2, 1993. On that day, Albizu, Camacho, and Rodriguez met Williams at his apartment. Williams called his regular car service driver, Douglas Welch, and for several hours, Welch drove the group around as they prepared to murder Ocasio. During that time, they collected weapons and obtained ammunition. They then located Ocasio, who was standing in front of a liquor store with Gilberto Garcia and Luis Garcia. Albizu went to collect his weekly salary from Ocasio and returned to the car. The group then met up with Cherry, who helped Albizu and Williams hijack an additional car. Albizu parked the hijacked car a few blocks from the liquor store, and Cherry left. Welch drove Albizu, Williams, Camacho, and Rodriguez around the neighborhood and then dropped off Albizu a few blocks from the liquor store. Welch then drove around for a few more minutes and parked half a block from the liquor store. Williams and Camacho exited the car while Rodriguez waited with Welch. Williams and Camacho then shot Ocasio, Gilberto Garcia, and Luis Garcia. Ocasio and Gilberto Garcia were killed. Luis Garcia was wounded. Camacho returned to the car, and Williams left in a different direction. Welch drove Camacho and Rodriguez away, and they regrouped with Williams and Cherry, who had the hijacked car. The next day, Camacho and Rodriguez met with Albizu and talked about the murders.
The principal witnesses for the government on the issue of defendants’ participation in the shootings were Albizu and Welch, who testified to the sequence of events described above. 2 The defense attacked these witnesses’ credibility by calling attention to the ruthless, self-serving acts committed by Albizu in connection with prior crimes and by arguing that Albizu and Welch were providing testimony to please the prosecutors in order to obtain leniency. Albizu had originally been indicted along with the defendants and had accepted a plea bargain pursuant to which he was sentenced to time served plus 60 days. In exchange for his cooperation, Welch was never prosecuted. The government also called defendants’ former partner in their drug sales business, Jose Crespo, to testify as a background witness. Finally, the government called several police officers as witnesses.
Defendants each presented an alibi witness at trial. Venero Jimenez testified that Camacho was visiting his mother in Florida from a few days after Christmas in 1992 until approximately three weeks later. Nancy Melendez, Rodriguez’s former girlfriend and the mother of his child, testified that Rodriguez came to her apartment the evening of January 1, 1993, and
To rebut Camacho’s alibi defense that he was in Florida during the first weeks of January 1993, the government called as a rebuttal witness a parole officer who testified that Camacho met with her in the Bronx on January 6, 1993. The government also introduced a court transcript showing that Camacho appeаred in court in the Bronx on January 7, 1993. Finally, the government called two New York City police detectives who testified that they had interviewed Garcia after the shootings and that Garcia told them at that time that he did not know who shot him.
On June 26, 1996, the jury returned a verdict of guilty on all counts against both Camacho and Rodriguez. Defendants immediately submitted a motion for a judgment of acquittal and, alternatively, for a new trial on the basis of insufficient evidence and various other grounds. The Court denied their motion.
United States v. Camacho,
No. S12 94 Cr. 313,
During the late summer or fall of 2000, counsel for defendants received an affidavit by a federal inmate named Christopher E. Thomas (also known as Christopher E. Reese). Thomas’s affidavit is dated July 14, 2000, and attests to the following events: Around June of 1998, Thomas was incarcerated at the federal prison in Otis-ville and frequently visited the prison law library. He becаme acquainted with Gregory Cherry, who was working in the law library, and began helping him with papers
The Second Circuit Court of Appeals permitted defendants to withdraw their appeals without prejudice so that defendants could make a third motion before this Court for a new trial. That motion was filed on March 30, 2001. 4
DISCUSSION
I. Jurisdiction
At the Court’s direction, the defendants and the government have submitted supplemental memoranda of law addressing the issue of the Court’s jurisdiction as governed by Rule 33 of the Federal Rules of Criminal Procedure. That direction was explained in the Court’s opinion dated July 10, 2001, which laid out the jurisdictional issue raised by defendants’ motion,
Unites States v. Camacho,
S12 94 Cr. 313,
Rule 33 limits the time within which a defendant in a criminal case may move for a new trial. A district court has jurisdiction to consider a motion for a new trial only if the motion is submitted within the time limits established by Rule 33.
United States v. Lussier,
Defendants’ motion for a new trial based on newly discovered evidence would be timely under the version of Rule 33 in effect prior to December 1, 1998, but it would be late under the current version of the rule. The jury announced its verdicts on June 26, 1996. Defendants filed this
The question whether the amended version of Rule 33 should apply in circumstances such as are present in this case is a matter of first impression.
See Lussier,
Amendments to a rule of procedure generally apply to cases commenced after the effective date of amendment and also may apply to some pending cases “insofar as just and practicable.”
Bowler,
Defendants and the government offer several reasons why it would or would not be just and practicable to apply the new version of Rule 33 in this case. For the most part, their arguments miss the mark. Defendants contend that they have no control over the emergence of new facts and that their motion is meritorious; they also assert that resolution of their motion by the trial court would avoid piecemeal litigation through appeals and habeas petitions. These arguments do not in the slightest distinguish defendants’ motion from other motions based on newly discovered evidence under Rule 33. In essence, defendants are arguing that it is unjust and impracticable to impose any time limit on a motion for a new trial based on newly discovered exculpatory evidence and, therefore, that the least restrictive time limit should apply. I must perforce accept the contrary proposition implicit in the drafters’ revision of Rule 33-that it is just and practicable to impose definite time limits, running from the date of the verdict, on motions for a new trial based on newly discovered exculpatory evidence. I am not persuaded that the former version of Rule 33 should apply merely because it is more permissive than the current version of Rule 33.
Defendants and the government also debate the significance of the fact that defendants raised similar issues in their second motion for a new trial. I do not find these arguments to be helpful on the question whether it would be “just and practicable” to apply the current version of Rule 33 in this case. Defendants’ motion is based on newly discovered evidence, statements by Gregory Cherry to Christopher Thomas, which defendants could not have included in their prior motion. Rule 33 does not
Defendants make the further argument that their motion relates back to their second motion for a new trial and that therefore the time limit of Rule 33 only applies to the filing of their second motion. Defendants’ second motion for a new trial was timely filed under either version of the rule. Rule 33 does not provide an exception to its time limit for motions that relate to earlier motions, nor does it give courts discretion to grant additional time for defendants to file motions for a new trial based on newly discovered evidence, although the rule does give courts such discretion with regard to motions for a new trial made on other grounds.
See
Fed. R.Crim.P. 33 (“A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.”); Fed.R.Crim.P. 45(b) (“[T]he court may not extend the time for taking any action under Rules 29, 33, 34 and 35, except to the extent and under the conditions stated in them.”). The time limits imposed by Rule 33 must be “strictly construed.”
Herrera v. Collins,
On the issue of whether it is just and practicable to apply the new version of Rule 33 in this case, the determinative question is not whether the new version of Rule 33 is itself just and practicable; rather it is whether that version can be applied in cases presenting comparable chronologies in a manner that is predictable, uniform, and consistent with the purposes of the rule. See Fed.R.Crim.P. 2 (“These rules .... shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”). I find that it would not be just or practicable to apply the new version of Rule 33 in this case, where the verdict was reached before the amendments to Rule 33 came into effect, because the time period prescribed by the new version of the rule runs from the date of the verdict.
Defendants were convicted by the jury on June 26, 1996. If they had consulted Rule 33 on that date to determine how much time they had to file a motion for a new trial, they would have learned that they could file a motion for a new trial based on newly discovered evidence at any time before final judgment or for two years thereafter. Defendants filed this motion on March 30, 2001, 8 before the Second Circuit heard their appeal and thus before “final judgment.” The amendments to Rule 33, imposing a new time limit based on the date of the verdict, became effective on December 1, 1998. Under the new rule, defendants would have been barred from submitting a motion for a new trial after June 26, 1999, that is three years after the verdict. It would be unfair to apply the new rule to defendants, because it would interject an unexpected deadline into the post-trial process. Defendants should be able to rely on the rule governing motions for a new trial that was in effect on the date they were convicted. Furthermore, application of the new rule in cases such as this one, where the verdict was reached before December 1, 1998, would have inconsistent effects. As of the effective date of amendment, some defendants would suddenly have only a few days or weeks to file their motions, while other defendants would have up to three years. Rule 33 should be applied in a manner to provide defendants in criminal trials with clear advance notice of their deadlines for filing post-trial motions. For this reason, I conclude that it makes sense and would be most just to apply the version of Rule 33 in effect on the date of the verdict, in this case the former version of Rule 33 providing a deadline of two years after final judgment.
Other courts have applied the version of Rule 33 in effect on the date of the verdict in circumstances where the defendants
[A]t the time of the verdict [Rule 33] provided that such a motion could be made within two years following final judgment. The amendment of the rule did not become effеctive until December 1, 1998, more than three years after the verdict.
It would be entirely anomalous to apply the current time limit to defendant’s motion. Doing so would mean that Soler’s motion was barred before the revision of Rule 33 even came into effect. Soler surely had a right to rely on the old version of Rule 33 as long as it was effective. There is no sensible and fair way to apply the new rule to him. The old rule must govern, and under that rule the motion is timely.
United States v. Soler,
No. 94 Cr. 533,
II. Judicial Immunity
In an opinion dated December 1, 1999, the Court denied defendants’ request for a grant of judicial immunity for Gregory Cherry.
United States v. Camacho,
No. S12 94 Cr. 313,
First, the district court must find that the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the fifth amendment. Second, the witness’s testimony must be material, exculpatory, and not cumulative. Third, the testimony must be unobtainable from any other source.
Id.
at *3^4 (quotations omitted),
citing and quoting United States v. Bahadar,
Defendants now ask the Court to reconsider its refusal to grant judicial immunity to Cherry, but defendants fail to provide any evidence of prosecutorial misconduct that they did not provide, or could not have provided, in connection with their prior motion. Rodriguez argues that Thomas’s affidavit shows that the government abused its prosecutorial discretion, and Camacho argues that Thomas’s affidavit demonstrates a “compelling need” for immunity. These arguments are without merit. The affidavit by Thomas confirms the exculpatory nature of Cherry’s proposed testimony, which the Court has already recognized.
Camacho,
Counsel for Rodriguez suggests that the Court in its opinion of December 1, 1999, mistakenly applied the newly discovered evidence requirement to defendants’ request for judicial immunity. Reply Mem. of Law. at 6. Counsel confuses the two grounds of decision in the Court’s opinion. Defendants had requested a new trial based on proposed testimony by Cherry, which they hoped to obtain through a grant of judicial immunity, and, in the alternative, based on a pattern of prosecu-torial misconduct.
Camacho,
While defendants do not argue that the legal standards governing judicial grants of immunity have changed, Rodriguez does rely on
United States v. Dolah,
“The “discriminatory use” component of the test is not entirely clear. It is arguable that this component ... means simply a decision by the Government toconfer immunity on some witnesses and not on others.... On the other hand, ... ‘tactical advantage’ might mean something more than merely selecting from among potential witnesses those who will receive immunity.”
Id. at 105-06. The court did not set any new standard for reviewing denials of immunity by prosecutors but rather summarized and affirmed existing precedent, in particular noting that interference with the power of prosecutors to grant or deny immunity was permissible only in “limited circumstances.” Id. at 106. The court then held that it was fundamеntally unfair for the government in that case to immunize select witnesses while introducing the plea allocations of similarly situated witnesses whose testimony would have been less favorable to the government. Id. at 107. Counsel for defendants do not argue that the misconduct alleged in this case is comparable to the misconduct alleged in Dolah.
The issue of judicial immunity was considered at length in the opinion of December 1, 1999, and I find no persuasive reason to reconsider the issue now. Therefore, defendants’ request for judicial immunity for Gregory Cherry is denied.
III. The Merits of Defendants’ Motion for a New Trial
The Court having declined to grant judicial immunity to Cherry, the new evidence upon which defendants base their motion for a new trial perforce consists of Thomas’s account of his conversation with Cherry. That account presently takes the form of the affidavit defense counsel have obtained from Thomas, setting forth the declarations that Thomas attributes to Cherry. In these circumstances, three questions arise:
(1)Would the declarations Thomas attributes to Cherry be admissible under the rules of evidence at a new trial? If that question be answered in the negative, then the defendants’ motion fails of necessity, since this is the only new evidence defendants have to support it.
(2) If the rules of evidence would permit Thomas to testify to Cherry’s declarations in a manner consistent with Thomas’s affidavit, do Cherry’s declarations entitle defendants to a new trial?
(3) Is an evidentiary hearing necessary to resolve these issues, or should the Court adjudicate the motion on the basis of the present written submissions?
I will consider these questions in order.
A. Admissibility
Defendants offer Cherry’s out-of-court declarations to Thomas “to prove the truth of the matter asserted,” Fed.R.Evid. 801(c), namely, that Cherry and Williams, not Camacho and Williams, shot Ocasio, Gilberto Garcia, and Luis Garcia. Accordingly, under that rule, Cherry’s declarations are hearsay, and could be admitted at a new triаl only if they fall within a recognized exception to the hearsay rule.
Defendants rely upon the exception found in Rule 804(b)(3). That Rule provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing itto be true. 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.
Defendants who offer hearsay evidence that another person has confessed to the crime must establish three elements in order to prevail on the issue of admissibility: “(1) the declarant is unavailable; (2) the statement was at the time of its making against the declarant’s (penal) interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.”
United States v. Rodriguez,
It is undisputed that Cherry would be “unavailable” under Rule 804 if he were called to testify and invoked his Fifth Amendment privilege against self-incrimination. Rule 804(a)(1) provides that a declarant is “unavailable” if he is “exempted by ruling of the court on the ground of privilege from testifying.”
See United States v. Dolah,
1. The Requirement of Clear Corroboration
“Although Rule 804(b)(3) requires the presence of corroborating circumstances only in the case of statements ‘tending to expose the declarant to criminal liability and offered to exculpate the accused,’ this Circuit requires corroborating circumstances even when the statement is offered ... to
inculpate
the accused.”
United States v. Casamento,
The requirement of corroboration is easy enough to state in general terms, but the Second Circuit cases have led to some uncertainty with respect to its particular application. Thus in
Salvador,
where the Second Circuit affirmed the trial judge’s exclusion of an exculpatory declaration be-. cause “the indicia of reliability are far too insufficient to warrant admission,”
Exactly what needs to be corroborated, though, is not absolutely clear from the rule оr much of the case law. Corroboration of the trustworthiness of the statement could mean that the district judge is to require corroboration of the of the declarant’s trustworthiness, focusing on declarant’s reliability when the statement was made, or corroboration of the truth of the declarant’s statement, focusing on whether the evidence in the record supported or contradicted the statement, or both. Our court seems to require corroboration of both.
The corroboration requirement of the Rule should be construed to effectuate its purpose of circumventing fabrication. To this end, our cases have required corroboration of both the declarant’s trustworthiness as well as the statement’s trustworthiness.
Id. (citation and internal quotation marks omitted) (emphases in original).
However, more recently in
Doyle,
On the other hand, 5 Weinstein’s Federal Evidence § 804.06[5][c] states that “[i]t is the statement, not the witness or the declarant, that must be trustworthy.” As the treatise notes, “[t]he corroboration requirement should not be used as a means of usurping the jury’s function” of evaluating the credibility of witnesses. Id.
(emphasis added). In Doyle the Second Circuit, having paid that apparent tribute to Weinstein’s analysis, then offered a further discussion which is, in large measure, an apologia for its prior decisions in Salvador and Bahadar:
In any event, the credibility of an absent declarant is a consideration pertinent to the probative value of her or his testimony and, thus, relevant to a judge’s decision to admit or exclude evidence under the ever-vigilant Fed.R.Evid. 403, even if not a proper question for the judge under Rule 80k. Accordingly, our circuit’s position, as stated in Salvador and Bahadar, can be justified as a proper exercise of the trial judge’s discretionary authority under a combination of Rules 804 and 403.
Doyle
was a prosecution for the illegаl exportation of equipment in violation of an embargo of trade with Libya. At trial co-
Given that the other evidence at trial supported Nothacker’s later statement and contradicted his earlier assertions that he never discussed the identity of the ultimate purchaser with Doyle, we easily conclude that the district court cannot be faulted for excluding the statements.
Id. at 544.
The most recent Second Circuit case is
United States v. Desena,
Even if Richter’s statements, overheard by Spring, were not admissible under the coconspirator exception, any error was harmless because the statements could have been admitted as statements against interest. See Fed. R.Evid. 804(b)(3). Richter invoked his Fifth Amendment right not to testify at Mihalitsianos’ trial and thus was an unavailable witness under Fed.R.Evid. 804(a)(1); an admission to arson was contrary to Richter’s penal interest; and the trustworthiness of Richter’s statements was corroborated by the testimony of Joseph Whittaker, whose descriptions of the scene of the arson the day of the crime (a) matched Richter’s description of Mihalitsianos’ actions and (b) substantiated the motive offered by Richter.
In
Desena
the Second Circuit’s analysis of corroboration was limited to the trust
In the case at bar, defendants Camacho and Rodriguez offer Cherry’s declarations to exculpate themselves. Accordingly
Doyle
stands as the most recent Second Circuit squarely addressing the requirement of corroboration of exculpatory hearsay declarations under Rule 804(b)(3). While, as noted, the
Doyle
court acknowledged with evident respect Judge Wein-stein’s view that “it is the statement, not the witness or the declarant, that must be trustworthy” to render a declaration admissible under Rule 804(b)(3), the court of appeals’ decision in
Doyle
rested in part upon the lack of trustworthiness of the declarant, Nothacker. I have previously quoted the Second Circuit’s observation in
Doyle
that “the credibility of an absent declarant is a consideration pertinent to the probative value of her or his testimony”; the court also said in that regard: “While Nothacker may not have altered his story as many times as did the absent defendant in
Bahadar,
the former’s inconsistent stories suggest a similar risk of fabrication.”
Therefore I conclude that, under the present law of this circuit, I must consider the trustworthiness of Cherry as a declar-ant, as well as the trustworthiness of the declarations attributed to him. That is so, whether the consideration of Cherry’s trustworthiness is undertaken solely as part of the corroboration requirement of Rule 804(b)(3), as indicated by Salvador and Bahadar, or as the result of an interaction between Rule 804(b)(3) and Rule 403, as the Second Circuit suggested in Doyle.
Courts construe the requirement for “clear” corroboration in light of its purpose of assuring that defendants have not fabricated evidence.
Rodriguez,
The Second Circuit has considered in comparable situations the reliability of statements made by a defendant’s alleged partner in crime.
United States v. Doyle,
Decisions in other circuits have dealt with situations comparable to the present case and provide helpful analysis. The Fifth Circuit in
United States v. Bagley,
In
United States v. Silverstein,
In
United States v. Satterfield,
While the facts of the cases discussed above do not perfectly match those in the present case, they are similar in several respects, and their analysis provides useful guidance.
See also United States v. Bahadar,
First I will consider whether the circumstances of Cherry’s statement to Thomas clearly corroborate its reliability, and then I will consider whether any evidence at trial clearly corroborates the truth of Cherry’s statement. I assume for purposes of this analysis, limited to the question of admissibility, that what Thomas describes in his affidavit actually took place and that Thomas did not concoct the events described in collaboration with Cherry or the defendants.
See United States v. Casamento,
Courts have recognized multiple factors that are relevant to determining the reliability of an out-of-court confession.
See, e.g., Chambers v. Mississippi,
First, the fact that a statement directly inculpates the declarant, and no one else, argues in favor of its reliability.
See Lilly v. Virginia,
The timing of Cherry’s statement to Thomas undermines its reliability to some degree. The conversation took place in June of 1998, two years after the murders.
See Chambers,
The context of Cherry’s statement, on the other hand, supports its reliability. The statement was made spontaneously to a friend, in response to a casual remark. While Thomas and Cherry were sitting together, Thomas noticed that Camacho did not greet him, and Cherry explained that Camacho was in prison for a crime that Cherry committed. Courts have found such statements to be more reliable than statements made in response to coercive questioning by police officers or prosecutors.
See Lilly,
The reliability of Cherry’s statement to Thomas would be diminished if Cherry had a motive to lie. Since Cherry was a member of the C & C gang and a codefendant of Camacho and Rodriguez, there is reason
In the present case, we are persuaded that the trustworthiness condition was met, given the circumstances and content of Prater’s statements. The statements were not made to law enforcement authorities, were not made in response to questioning, and were not made in a coercive atmosphere. Rather, they were volunteered by Prater to his girl-friend, an intimate and confidante, in the private recesses of their home. There were no coercive pressures, and there was no attempt to curry favor with authorities. Indeed, when he made the statement to Dunbar, Prater had no reason to expect that his admission would ever be disclosed to the authorities.
Matthews,
The extent to which a declarant expects his statement to subject him to criminal liability also reflects on the statement’s reliability.
Chambers,
The consistency of statements by Cherry is another factor to be taken into account.
See United States v. Bahadar,
Statements to police and prosecutors by criminal suspects or defendants are not considered to be reliable, because the de-clarant generally wants to obtain favorable treatment; Cherry’s statements to the police were especially unreliable because they were self-exculpatory.
See Williamson v. United States,
A final factor to consider is that Cherry is a recently convicted felon. Courts typically distrust statements made by convicted criminals.
See United States v. Gossett,
In summary, Cherry’s inconsistent statements regarding the shootings on January 2, 1993, taken together with the fact that Cherry has recently been convicted of a felony, seriously weaken his credibility. Furthermore, the significant amount of time that had elapsed between the shootings and the conversation between Cherry and Thomas, and the fact that Cherry had already been convicted, reduces the reliability of Cherry’s statements. However, the circumstances of Cherry’s statements to Thomas-the friendly, private nature of their conversation and the spontaneous, casual way the statements were made-argue in favor of their reliability. Even if Cherry were willing to lie to help Camacho and Rodriguez, there is no reason to believe that Cherry expected his statements to Thomas to be used in court. It is entirely plausible that Cherry truthfully identified the shooters to police but, after securing his plea bargain, has been trying to help his friends Camacho and Rodriguez overturn their convictions. It is equally plausible that Cherry falsely accused Camacho when confronted by police but later honestly admitted his involvement to an inmate friend and tried to help Camacho and Rodriguez, while still protecting himself, by telling Rodriguez’s attorney that he would testify with a grant of immunity. At this point, I withhold judgment as to whether Cherry’s credibility and the circumstances of his conversation with Thomas clearly corroborate his statements. For reasons described below in Part III.C., I will conduct an evidentiary hearing to evaluate Thomas’s proposed testimony. Such a hearing may provide useful insight into the circumstances of Cherry’s statements to Thomas.
I now turn to the question of whether other evidence provides clear corroboration for the truth of Cherry’s statement to Thomas that he committed the murders for which Camacho and Rodriguez were convicted. The surviving victim, Luis Garcia, testified that Williams and Cherry were the shooters. In addition, the government’s evidence shows that Williams and Cherry were bеing targeted by Ocasio and that Cherry was deeply involved in planning the murder of Ocasio, to such an extent that a plan to commit the murder in December of 1992 was called off because Cherry failed to appear. Also, the government’s evidence suggests that Cherry collaborated with Albizu and Williams on the afternoon of the shootings to hijack a second get-away car and that Williams and Cherry fled the scene of the murder together in that car. Of course, Cherry’s confession also contradicts testimony by Welch, the driver of the first car, that he saw Williams and Camacho commit the
B. Whether a New Trial is Required
A court may grant a motion for a new trial in a criminal case “if the interests of justice so require.” Fed.R.Crim.P. 33. The standards governing motions for a new trial are strict, and a district court may grant a new trial only in “the most extraordinary circumstances.”
United States v. Gambino,
A new trial is warranted where a defendant presents newly discovered evidence that is material and noncumulative and that would probably lead a jury to acquit the defendant.
Torres,
In order to justify a new trial, newly discovered evidence must directly contradict central evidence in the government’s case, not merely further discredit government witnesses.
Gambino,
A confession by another person to the crime charged, if found credible, is generally the sort of evidence that may warrant a new trial.
Casias v. United States,
In order to determine whether testimony by Thomas regarding Cherry’s confession would likely lead to an acquittal, two distinct questions must be answered. First, if the jury heard testimony by Thomas, would the jury have reasonable doubt that Camacho was one of the two shooters? This question concerns the relative credibility of Thomas’s testimony and testimony by other witnesses in light of the evidence as a whole. Second, if the jury had reаsonable doubt that Camacho was one of the two shooters, would the jury have found Camacho and Rodriguez guilty of the crimes charged? Defendants offer several arguments regarding the first question, the credibility of Thomas’s testimony compared to other testimony, but do not make any arguments relating to the second question. The government does not undertake any analysis in its memorandum of law of how evidence of Cherry’s statement would affect the outcome of a trial.
In assessing the credibility of Thomas’s testimony compared to testimony by other witnesses, a jury would presumably consider 1) the trustworthiness of Thomas as a witness, 2) the trustworthiness of Cherry when he confessed to Thomas, and 3) the trustworthiness of witnesses whose testimony corroborates or contradicts Thomas’s testimony. The second factor, the trustworthiness of Cherry’s statement to Thomas, has already been discussed at length in connection with the issue of admissibility under Rule 804(b)(3),
supra
at 31-38. The third factor, the general nature of other testimony that corroborated or contradicted Cherry’s statement, was also briefly discussed in connection with
I have not yet evaluated the credibility of Thomas as a witness. A jury would have good reason to question Thomas’s candor. Considering that Thomas was providing legal assistance to Cherry and was acquainted with Camacho while the three of them were incarcerated together at Otisville, it would not be surprising to learn that Thomas collaborated with Cherry and Camacho to help Camacho overturn his conviction.
Compare Bagley,
Even if a jury were to credit Thomas’s testimony and refuse to believe that Camacho committed the shootings with Williams, it is not at all clear that the jury would have acquitted Camacho and Rodriguez of the crimes charged. The government’s evidence at trial showed that Camacho and Rodriguez spent the entire afternoon of January 2, 1993, with Albizu and Williams in Welch’s car. Defendants presented alibi witnesses to show that they were not with Albizu and Williams that day. Camacho’s alibi was directly contradicted by the testimony of a parole officer and by records of his appearance in court. The government also attacked the credibility of Rodriguez’s alibi witness. Evidencе showing that Williams and Cherry committed the shootings would neither support defendants’ alibis nor prove that Camacho and Rodriguez were not involved in the preparations on the afternoon of January 2. Rodriguez was convicted of the murder charges even though there was no allegation that he actually committed the shootings, and the jury may very well have convicted both defendants even if neither of them actually committed the shootings. On the other hand, if the jury were to believe that Cherry’s statement was truthful, then the jury would also believe that Albizu and Welch were not telling the truth about the shootings and may not have been telling the truth about the extent of Camacho and Rodriguez’s participation in preparations for the shootings. Cherry’s confession could undermine the credibility of Albizu and Welch enough that a jury could have reasonable
C. The Necessity for an Evidentiary Hearing
Whether a district court should hold an evidentiary hearing before deciding a motion for a new trial rests in the discretion of that court.
See United States v. Petrillo,
The particular grounds urged by a defendant on a motion for a new trial may affect the necessity of a hearing.
See, e.g., United States v. DiPaolo,
In the case at bar, neither Thomas nor Cherry appeared at the trial as a witness. I was the trial judge, but I have never seen or heard Thomas or Cherry testify. Accordingly the Second Circuit’s inclination against evidentiary hearings in recantation cases does not apply. I find myself in accord with the district judge in
United States v. Falu-Gonzalez,
I also find guidance in Judge Chin’s decision in
Morales v. Portuondo,
I have concluded that an evidentiary hearing is necessary in this case. At that hearing, Thomas will testify and be cross-examined, and I will be in a position to evaluate his words and his demeanor. Any party may offer additional relevant evidence. After the record is closed, counsel will be given an opportunity to review the evidence, and then I will hear oral argument.
D. The Credibility of Thomas
It is necessary to consider whether, at the evidentiary hearing, it is appropriate for the Court to evaluate the credibility of Thomas as a witness, and if so, for what purpose. If one focuses solely upon the admissibility of Cherry’s declarations under Rule 804(b)(3) at a trial, the rule in the Second Circuit would preclude me from making any judgment about the credibility of Thomas’s testimony describing those declarations.
United States v. Casamento,
Althоugh Rule 804(b)(3) requires the presence of corroborating circumstances only in the case of statements “tending to expose the defendant to criminal liability and offered to exculpate the accused,” this Circuit requires corroborating circumstances even when the statement is offered, as here, to inculpate the accused. In determining whether such a statement is trustworthy enough to be admissible, the district court must look to the circumstances in which the declarant made the statement. However, the court should not look to the credibility of the in-court witness. Assessing the circumstances of an in-court witness is the role of the jury. Therefore, we reject as not pertinent to the evidentiary ruling Castronovo’s argument that Con-torno was inclined to he. Castronovo asserts that Contorno was a “virtual stranger” to Carlo. The district court concluded otherwise, finding for the purposes of its evidentiary ruling that Carlo and Contorno had worked together as cigarette smugglers and cattle dealers. We conclude that the court did not err in making this determination. Therefore, since Carlo was a former business associate, and we perceive no reason from the evidence in the record for him to have lied or attempted to curry favor, we conclude that the that the circumstances in which the statement was made indicate that it was sufficiently trustworthy to be admitted.
In
United States v. Bagley,
The requirement that the corroborating circumstances “clearly indicate” the trustworthiness of the statement should be construed to permit the trial judge, who has the opportunity to judge the credibility of the witness, to exercise discretion in determining whether he is satisfied that the statement is trustworthy. If there was evidence before him from which he could conclude that the statement was not actually made (or would not be reliable evidence of the truth of the matter asserted) his exclusion of the statement should be affirmed.
Id. at 168 (emphasis added).
The case at bar is complicated by the fact that the admissibility of Cherry’s declarations must be viewed in the context of defendants’ motion for a new trial under Rule 33.
Casamento
and the other Rule 804(b)(3) decisions previously discussed all arose out of trial judges’ evidentiary rulings during trials from which convicted defendants took appeals. In оther words, the only question before the courts of appeal was whether, during the trial, the trial judge correctly applied Rule 804(b)(3) in admitting inculpatory out-of-court declarations or excluding exculpatory ones. In this Rule 33 context, the “newly discovered evidence must be of a sort that could, if believed, change the verdict”; and, in making that determination, “the trial court has broad discretion to decide Rule 33 motions based upon its evaluation of the proof produced,”
Gambino,
While I am aware of no case discussing the interaction between evidentiary Rule 804(b)(3) and procedural Rule 33, I think that the expanded focus of the present inquiry makes it at least arguable that I may consider the credibility of Thomas as a witness: not to determine the admissibility of Cherry’s declarations, but rather to evaluate the likely effect of Thomas’s testimony upon the jury at a new trial.
I do not decide the point now, and will hear argument from counsel concerning it. But I entertain no doubt that the prudent course is to develop a full record during the evidentiary hearing. That means that
E. Due Process
Camacho makes a due process argument in his reply brief based on
Chambers v. Mississippi,
CONCLUSION
For the foregoing reasons, I conclude that this Court has jurisdiction to consider defendants’ motion under Rule 33 of the Federal Rules of Criminal Procedure. I deny defendants’ request for a grant of judicial immunity for Gregory Cherry to testify. An evidentiary hearing will be held to receive Thomas’s testimony and any other evidence relevant to the issues discussed in this Opinion.
A scheduling Order implementing the Opinion will be entered separately.
It is SO ORDERED.
Notes
. The members of the C & C gang were frequently referred to at trial by their nicknames: Albizu-"Pito,'' Pillot-"Joey," Williams-"Tree,” and Chercy-"G” or "Ninja.” Camacho and Rodriguez were sometimes referred to respectively as "Spanky" and "Jay"; two other indicated defendants appear to have the same nicknames (James Rodriguez-"Spanky” and James Boggio-"Jay”).
. There were several discrepancies in the extensive narratives of these two witnesses at trial. For example, Albizu did not mention the hijacking in the sequence of events preceding the murders, but he did describe the hijacking as occurring on another day. Also, Welch but not Albizu recalled that Rodriguez had obtained bullets on the day of the murders. The government in summation urged the jury to find Welch's version of the facts more accurate.
. Cherry was sentenced on September 24, 1998, pursuant to a plea bargain, to twenty-five years in prison.
. Camacho's motion for a new trial was filed with the Court on March 30, 2001. Rodriguez's motion was not officially served and filed with the.Court until July 2, 2001, although the Court had received a courtesy copy of the motion well prior to that date.
. The 1998 amendment did not alter the time limits applicable to motions for a new trial on grounds other than newly discovered evidence. Such motions must be made “within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.” Fed.R.Crim.P. 33.
. See supra note 4.
. In certain circumstances, a defendant may be permitted to amend or supplement a motion for a new trial after the time limit under Rule 33 has expired, as long as the amendment or supplement does not assert additional grounds for the motion.
See United States
v.
Flynn,
. See supra note 4.
. Counsel for Rodriguez challenges the government’s strategy, in its prosecution of the C & C gang, of negotiating plea bargains and cooperation agreements with certain defendants while proceeding to trial against other defendants. Counsel also offers as Exhibit A to her memorandum of law a list entitled "Examplеs of Prosecutorial Misconduct.” The factual allegations in Exhibit A are not supported by any sworn affidavits or other evidentiary documents, and all but two of the allegations in Exhibit A concern government actions prior to or during defendants’ trial. The other two allegations concern the government's failure to investigate Cherry's role in the shootings on January 2, 1993, after hearing the testimony at trial by Luis Garcia, and the government's failure to advise defendants that a cooperating witness in an "unrelated” prosecution of C & C members may have committed perjury. It is worth noting that the confession that was offered as evidence of peijury in the unrelated case was found not credible by a state court, and that finding was upheld on habeas review.
Lemus v. Artuz,
. The Second Circuit has frequently refrained from articulating the limits of the "against penal interest" requirement and instead decided cases based on the corroboration requirement.
See, e.g., United States v. Doyle,
. For some inexplicable reason, the parties devote considerable attention in their briefs to
. The Court in Chambers found that the state court’s refusal to admit hearsay evidence that another person had confessed to the crime violated the defendant's due process rights, because the confessions were extremely reliable and vital to the defense:
The hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. First, each of McDonald's confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case.... The sheer number of independent confessions provided additional corroboration for each. Third, whatever may be the parameters of the penal-interest rationale, each confession here was in a very real sense self-incriminatory and unquestionably against interest.... Finally, if there was any question about the truthfulness of the extrajudicial statements, McDonald was present in the courtroom and was under oath. He could have been cross-examined by the State, and his demeanor and responses weighed by the jury.
Chambers,
. The government relies heavily on the frequent application of Rule 804(b)(3) to plea allocutions and argues that "[ajbsent a sworn statement," there is no basis for admission under Rule 804(b)(3). Mem. of Law at 9. It is true that the Second Circuit has found that formal sworn statements tend to be reliable.
United States v. Moskowitz,
. As previously noted, Cherry’s expectation that Thomas would not disclose his confession to the authorities also enhances the reliability of his statement, because it indicates that he was not motivated by a desire to help Camacho and Rodriguez challenge their convictions in court. See supra page 307.
. The government makes the untenable argument that Cherry's statements accusing others of murders were against his own penal interest. Gov. Mem. of Law at 7-8.
. To require that exculpatory statements be uncontradicted, or even that they be corroborated by a preponderance of the evidence, would effectively limit application of the penal interest exception to cases where the defendant would likely be acquitted even without admission of the exculpatory statement.
. See supra note 12 (quoting from
Chambers
). In
Chambers,
the court was reviewing a habeas corpus petition that alleged due process violations in a state criminal trial. Another person had repeatedly confessed to the crime for which the defendant was charged. When the defendant called that person to take the stand, the court applied the "voucher rule” and refused to allow the defendant to treat the witness as adverse and cross-examine him. In addition, the state court refused to permit evidence of the out-of-court confessions to be admitted into evidence, because the state did not have an exception to the hearsay rule for statements against penal interest. The Court in
Chambers
emphasized the unusual circumstances of the case and held that the state court's application of the voucher rule and the hearsay rule, in combination, violated the defendant's due process right to present his defense.