U.S. v. Rosario

Citation111 F.3d 293
Decision Date14 April 1997
Docket Number17,D,29,Nos. 9,10,11,7,214 and 215,s. 9
Parties46 Fed. R. Evid. Serv. 1402 UNITED STATES of America, Appellee, v. Heriberto ROSARIO, also known as "Eddie"; Miguel Kercado, also known as "Mickey"; Carlos Rivera, also known as "LL"; Vincent Basciano, also known as "Vinnie"; Albert Biscaglio, also known as "Allie"; John O'Rourke, also known as "XYZ"; Eustrogio Matute, also known as "Panama"; William Mendoza, also known as "Willie"; Marcos Delgado, Jr., also known as "Papo"; Pedro Gonzalez, also known as "Klepper Duche"; Carlos Quinones, also known as "Charlie Lie"; Julio Salas, also known as "Sal"; Angel Alvarado; Ronald Richardson; Alex Pacheco, also known as "Cool E"; David Delvalle; Hector Suarez; Porfirio Ortiz; Noel Melendez; Gregory Williams; Mildred Hernandez; Sonia Rivera; Jose Kercado; Raimundo Hurdle; Frank Colon; Charles Colon; Griselda Colon; William Lopez; Jose Agosto; Carmen Mendoza; Miguel Rodriguez; Samanta Torres; Larry Weinstein, Defendants, Eric Millan, also known as "Moe"; Alfred V. Bottone, Sr., also known as "Fat Al"; Ralph Rivera, also known as "TJ"; Myles Coker, also known as "Mouse"; JOSE COLON, also known as "Black Jose"; Alfred Bottone, Jr., also known as "Alfie", Defendants-Appellants. ockets 94-1516, 94-1592, 94-1604, 94-1606, 94-1614, 95-1015, 95-1531 and 95-1687.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

David I. Schoen, New York City, for Defendant-Appellant Eric Millan.

Maurice H. Sercarz, New York City, for Defendant-Appellant Alfred V. Bottone, Sr.

John M. Apicella, Brooklyn, NY, for Defendant-Appellant Ralph Rivera.

Julia Heit, New York City, for Defendant-Appellant Myles Coker.

Roger J. Schwarz, New York City, for Defendant-Appellant Jose Colon.

Mark M. Baker, New York City (Benjamin Brafman, Mindy Leifer, Brafman, Gilbert And Ross, P.C., New York City, Michael H. Handwerker, Jacqueline Gayner, Handwerker, Honschke, Marchelos And Gayner, New York City, Brenda Grantland, Mill Valley, CA, of counsel), for Defendant-Appellant Alfred Bottone, Jr.

Dietrich L. Snell, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney, Southern District of New York, Dietrich L. Snell, Roland G. Riopelle, Sharon Cohen Levin, Martine M. Beamon, Ira M. Feinberg, Guy Petrillo, Assistant United States Attorneys, New York City, of counsel), for Appellee.

(Jeffrey Steinborn, Steinborn & Associates, Seattle, WA, on the brief), for Amicus Curiae Forfeiture Endangers American Rights Foundation.

Before: FEINBERG, ALTIMARI and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Appellants appeal from judgments of conviction of the United States District Court for the Southern District of New York (Shirley Wohl Kram, Judge ) entered on several dates between September 21, 1994 and December 27, 1994.

I. BACKGROUND

Appellants were convicted for their participation in a large-scale heroin drug conspiracy ring operated in the greater New York city area and in outlying counties of New York and New Jersey under the brand name "Blue Thunder." The background facts are set forth in our previous decisions in this case, and in the published decisions of the district court, familiarity with which is assumed. We recount only the facts relevant to the present appeals. In addition, certain issues raised on appeal have been addressed by a separate summary order, filed concurrent herewith, and will not be discussed in this opinion.

II. DISCUSSION
A. Admission of a Redacted Excerpt from a Defendant's Proffer Statement in Favor of a Co-defendant

The first issue we are called upon to determine is whether redacted excerpts from a proffer of one of the defendants were properly admitted. Appellant Alfred Bottone Sr. argues that admission of the statements was precluded under Rule 11(e)(6)(D) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence because they were made in the course of plea negotiations. We hold that the district court's ruling to admit the excerpts was appropriate.

Bottone Sr. regularly shipped bulk quantities of heroin for consignment sale to a variety of retail distribution organizations involved in the conspiracy. Prior to trial, Bottone Sr. entered into a proffer agreement with the government in which the government agreed not to offer any statements made by Bottone Sr. in its case-in-chief.

During the proffer interview, Bottone Sr. admitted his involvement in narcotics trafficking. In the redacted statements at issue, Bottone Sr. claimed that co-defendant Vincent Basciano was not involved in heroin trafficking, and that certain tape-recorded conversations admitted in evidence, obtained pursuant to a Title III investigation, concerned discussions about an illegal gambling business in which Bottone Sr. and Basciano were involved--not heroin transactions.

In the course of the trial, after in camera inspection by the court, Basciano was able to obtain the redacted statements as potentially exculpatory Brady material. He offered them into evidence pursuant to Rule 806 of the Federal Rules of Evidence. 1 Rule 806 permits introduction of out-of-court statements of a coconspirator for the purpose of impeaching that co-conspirator's statements admitted into evidence under Rule 801(d)(2)(E) of the Federal Rules of Evidence. Rule 801(d)(2)(E) provides for the admission of statements by a co-conspirator, made during the course and in furtherance of a conspiracy. Basciano argued that Bottone Sr.'s proffer statement, stating that Basciano was in the gambling business and had nothing to do with the heroin business, impeached the statements on audiotape which had earlier been admitted as statements by a co-conspirator during the course and in furtherance of a conspiracy, including a taped statement in which Bottone Sr. allegedly discussed heroin trafficking matters with Basciano.

Bottone Sr. opposed Basciano's motion on the ground that the statements were inadmissible under Federal Rule of Criminal Procedure 11(e)(6)(D), Federal Rule of Evidence 410, and this Court's holding in United States v. Serna, 799 F.2d 842 (2d Cir.1986). Rule 410, like Rule 11, provides that statements made in the course of plea discussions are inadmissible against the defendant participating in the plea discussion. The government agreed with that argument, but contested admission of the redacted proffer primarily on the ground that the statements did not have impeachment value because they were not inconsistent with any statement admitted in evidence through the tape recordings. The district court rejected these arguments, and the statements were admitted.

Rule 806 simply makes an otherwise hearsay statement admissible when the declarant (co-conspirator) has not taken the stand, but his statements have nevertheless come into evidence as a statement in furtherance of the conspiracy. Rule 806 does not overcome the Rule 410 objection if the statements being offered were obtained in a proffer session and they are being offered against the person who made the proffer.

The question which is raised here is whether the redacted proffer statements were being offered against Bottone Sr. or in favor of Basciano. In Serna, this Court addressed an argument that a statement was offered only for a limited purpose in favor of a co-defendant, and not against Serna. We rejected that argument, stating that "there [was] a strong likelihood that the jury would have considered [the proffered statement] as evidence against Serna ... [and that a] limiting instruction would have been ineffective to protect Serna from the devastating impact of the statement that was tantamount to a confession." 799 F.2d at 849 (citing Bruton v. United States, 391 U.S. 123, 129, 88 S.Ct. 1620, 1624, 20 L.Ed.2d 476 (1968)).

We distinguish this case from Serna. In response to questioning during plea negotiations about the involvement of a codefendant in narcotics trafficking activity, Serna made a statement to an agent to the effect, "you have the wrong person." 799 F.2d at 848. In the instant case, the following testimony was elicited at trial from a Special Agent of the Drug Enforcement Administration by Basciano in his defense case:

In substance Alfred Bottone, Sr. stated the following: "Bottone claimed that Vincent Basciano had nothing to do with the heroin business and that all the intercepted telephone conversations [involving] Basciano pertain to Basciano's gambling business. Bottone further claimed that Basciano's gambling business was a bad package and that he was advising Basciano in the intercepted conversations. Bottone denied that he was working for Basciano. He also claimed that he did not need anyone's approval to open up a numbers spot anywhere in New York City."

Though it was established that the statements were made about five months after Bottone Sr. was arrested, the jury was not informed of the fact that the statements were made at a proffer session. Also, the court instructed the jury not to consider either the substance of the statements or the circumstances in which they were made in evaluating the guilt or innocence of Bottone Sr. The district court found that there was no danger that the jury would consider this evidence against Bottone Sr., and on this basis, distinguished this Court's decision in Serna. 2 For this same reason, among others, the court also rejected defendant's request for severance on the basis of antagonistic defenses. We find both those rulings proper.

In Serna, this Court considered Serna's statement as a confession of guilt, because saying that the authorities had the "wrong" man necessarily implied that Serna knew who the "right" man was--that is, who was involved in the narcotics deal with him. In contrast, Bottone Sr.'s statement that he and Basciano were involved in gambling, not in the heroin business, did not imply that Bottone Sr.'s knowledge derives from his own involvement in the...

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