U.S. v. Tellier, 18

• Decision Date: 10 May 1996
• Docket Number: No. 18,D,18
• Parties: 44 Fed. R. Evid. Serv. 321 UNITED STATES of America, Appellee, v. Russell TELLIER; Teddy J. Moustakis; Alphonse Rescigno; Ronald Rescigno; Richard Lawlor; Timothy Burns; Michael Ladagana; Robert Bugliaro; Michael Bugliaro; James Hartofilis; and Pasquale Curatolo, also known as "Patsy," Defendants, Roy Tellier, Robin Scott Tellier, and Rene Tellier, Defendants-Appellants. UNITED STATES of America, Appellant, v. Robin Scott TELLIER; Rene Tellier; Roy Tellier; Alphonse Rescigno; Ronald Rescigno; Richard Lawlor; Timothy Burns; Michael Ladagana; Robert Bugliaro; James Hartofilis; and Pasquale Curatolo, also known as "Patsy," Defendants, Teddy J. Moustakis, Defendant-Appellee. ocket 94-1451.
• Court: U.S. Court of Appeals — Second Circuit

Page 578

83 F.3d 578

44 Fed. R. Evid. Serv. 321

UNITED STATES of America, Appellee, v. Russell TELLIER; Teddy J. Moustakis; Alphonse Rescigno;

Ronald Rescigno; Richard Lawlor; Timothy Burns; Michael

Ladagana; Robert Bugliaro; Michael Bugliaro; James

Hartofilis; and Pasquale Curatolo, also known as "Patsy," Defendants,

Roy Tellier, Robin Scott Tellier, and Rene Tellier,

Defendants-Appellants.

UNITED STATES of America, Appellant, v. Robin Scott TELLIER; Rene Tellier; Roy Tellier; Alphonse

Rescigno; Ronald Rescigno; Richard Lawlor; Timothy Burns;

Michael Ladagana; Robert Bugliaro; James Hartofilis; and

Pasquale Curatolo, also known as "Patsy," Defendants,

Teddy J. Moustakis, Defendant-Appellee.

No. 18, Docket 94-1451.

United States Court of Appeals, Second Circuit.

Argued Dec. 11, 1995.

Decided May 10, 1996.

Barry M. Fallick, Rochman Platzer Fallick & Sternheim, New York City, for Defendant-Appellant Robin Scott Tellier.

Gregory Cooper, New York City, for Defendant-Appellant Rene Tellier.

Roy Tellier, Minersville, Pennsylvania, pro se.

Guy Petrillo, Assistant United States Attorney, Southern District of New York, New York City (Mary Jo White, United States Attorney, of counsel), for Appellee.

Before: OAKES, WINTER and WALKER, Circuit Judges.

WINTER, Circuit Judge:

This is a multi-defendant case involving numerous federal crimes, including racketeering, firearms, transportation of stolen property, and other violations. The trial involved vast evidence of criminal activity over a ten-year period by the so-called "Tellier Organization." That activity included "snatch and grab" robberies, murders, and drug distribution. We decide all but one issue raised by these appeals ¹ by summary order filed this day. See 2d Cir.R. § 0.23. We issue this published opinion with respect to a claim raised by appellant Roy Tellier in his pro se brief that requires reversal of his convictions for participation in a racketeering enterprise and for racketeering conspiracy under the Racketeering Influenced and Corrupt Organizations statute ("RICO"), 18 U.S.C. §§ 1962(c) and (d), and for a violation of the Hobbs Act, 18 U.S.C. § 1951.

The RICO counts against Roy Tellier alleged only two predicate acts, one of which was a conspiracy to distribute stolen marijuana. Roy Tellier contends that the district court improperly admitted the testimony of Orlando Rodriguez concerning a hearsay statement by Roy's brother Robin Tellier indicating that Roy had sold the stolen marijuana. Although the hearsay was the only evidence that implicated Roy in the conspiracy to distribute marijuana, it was admitted as the declaration of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E). Roy Tellier contends that the statement was inadmissible and, as a result, the evidence of a pattern of racketeering on both the substantive RICO count and the RICO conspiracy count was legally insufficient. We agree that the statement was inadmissible and that, consequently, there was insufficient evidence of two predicate acts as required under RICO. See 18 U.S.C. § 1961(1) & (5); see generally United States v. Indelicato, 865 F.2d 1370 (2d Cir.) (in banc), cert. denied, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989).

We briefly summarize the factual background of the pertinent predicate act, the conspiracy to distribute marijuana. During the spring of 1991, Robin Tellier, Orlando Rodriguez, and another individual burglarized a marijuana dealer's apartment in Queens, New York. The proceeds of the robbery included approximately eight pounds of marijuana, which the burglars decided to sell. At trial, the government sought to prove that Roy Tellier conspired with the burglars to sell the stolen marijuana on Long Island. Roy Tellier maintains, and the government does not dispute, that the only evidence linking him to the marijuana conspiracy was Rodriguez's recitation of what Robin Tellier had told him about Roy selling the marijuana. Rodriguez's testimony was admitted under Federal Rule of Evidence 801(d)(2)(E), which excludes from the definition of hearsay statements made by a co-conspirator during the course, and in furtherance, of a conspiracy.

Extra-judicial statements by co-conspirators may be admitted if the government establishes by a preponderance of the evidence that there was a conspiracy, that both the declarant and the party against whom the statements are offered were members of the conspiracy, and that the statements were made during and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987) (quoting Fed.R.Evid. 801(d)(2)(E)); United States v. Orena, 32 F.3d 704, 711 (2d Cir.1994). In making these preliminary factual determinations under Federal Rule of Evidence 104(a), the court may consider the hearsay statements themselves. Bourjaily, 483 U.S. at 177-78, 107 S.Ct. at 2779-80. However, these hearsay statements are presumptively unreliable, id. at 179, 107 S.Ct. at 2780-81, and, for such statements to be admissible, there must be some independent corroborating evidence of the defendant's participation in the conspiracy. See United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988); United States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir.) ("Since Bourjaily, all circuits addressing the issue have explicitly held absent some independent, corroborating evidence of defendant's knowledge of and participation in the conspiracy, the out-of-court statements remain inadmissible.") (citing cases), cert. denied, --- U.S. ----, 115 S.Ct. 152, 130 L.Ed.2d 91 (1994); United States v. Bentvena, 319 F.2d 916, 948-49 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 346, 353, 354, 355, 360, 11 L.Ed.2d 271, 272 (1963).

As noted, Robin Tellier's hearsay statement was the only evidence of Roy Tellier's participation in the marijuana conspiracy. Because there was no independent corroborative evidence of Roy's participation in that conspiracy, ² the proffered hearsay statement was inadmissible. The government seeks to avoid this conclusion by suggesting that Robin Tellier's hearsay statement was made not only in furtherance of the marijuana conspiracy but also in furtherance of the RICO conspiracy of which both Robin and Roy Tellier were convicted. With respect to the RICO conspiracy, the government argues, there is sufficient independent corroborating proof of Roy Tellier's participation in it to permit the admission into evidence of Robin Tellier's statements to Rodriguez.

The evidence underlying the RICO conspiracy convictions amply demonstrates the existence of the "Tellier Organization," a RICO enterprise. See 18 U.S.C. § 1961(4). There is no dispute that Robin Tellier's statement about the sale of the stolen marijuana was in furtherance of a conspiracy to participate in that enterprise. However, under RICO § 1962(d), proof of Roy Tellier's membership in the RICO conspiracy requires evidence that Roy participated in the enterprise through a pattern of racketeering activity, or agreed to do so. Proof of the pattern in turn must include two predicate acts. "[T]o convict on a RICO conspiracy [the government] must prove that the defendant himself at least agreed to commit two or more predicate crimes," United States v. Ruggiero, 726 F.2d 913, 921 (2d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 60 (1984). See also Pryba v. United States, 498 U.S. 924, 924-25, 111 S.Ct. 305, 305-06, 112 L.Ed.2d 258 (1990) (White, J., dissenting from denial of certiorari) (discussing split of authority on this issue). One of the two predicate acts alleged against Roy Tellier was the marijuana conspiracy. Because the only evidence of Roy's participation in the marijuana conspiracy is the challenged hearsay evidence, we believe that the government did not prove Roy's membership in the RICO conspiracy because the evidence of a pattern of racketeering activity was legally insufficient.

To hold otherwise would involve a perverse inversion of Ruggiero. A defendant against whom there is no admissible evidence of an element of a Section 1962(d) conspiracy charge--a pattern involving two predicate acts--could nevertheless be deemed a conspirator. Presumptively unreliable statements would be treated as admissible evidence proving the very element of the Section 1962(d) conspiracy that was lacking in the first place. The government's theory would, in essence, use a hearsay statement to provide the sole foundation for its own...