U.S. v. Camacho

• Decision Date: 01 October 2001
• Docket Number: No. S1294CR.313(CSH).,S1294CR.313(CSH).
• Citation: 163 F.Supp.2d 287
• Parties: UNITED STATES of America v. Steven CAMACHO and Jaime Rodriguez, Defendants.
• Court: U.S. District Court — Southern District of New York

163 F.Supp.2d 287

UNITED STATES of America v. Steven CAMACHO and Jaime Rodriguez, Defendants.

No. S1294CR.313(CSH).

United States District Court, S.D. New York.

October 1, 2001.

Mary Jo White, United States Attorney for the Southern District of New York (Sharon L. McCarthy, of counsel), New York City, for U.S.

Joshua L. Dratel, P.C., New York City, for Steven Camacho.

Joyce C. London, New York City, for Jaime Rodriguez.

MEMORANDUM OPINION AND ORDER

HAIGHT, Senior District Judge.

Steven Camacho and Jaime Rodriguez were convicted of various racketeering acts in June of 1996 and now move pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial on the basis of newly discovered evidence. Defendants submit an affidavit by Christopher E. Thomas, a federal prisoner, that describes a conversation in which Gregory Cherry, a fellow inmate, stated that defendants were convicted of crimes that Cherry committed. Defendants request that the Court grant a new trial based on Cherry's statement. Defendants argue that Cherry should be granted judicial immunity so that he may testify or, in the alternative, that testimony by Thomas regarding Cherry's self-inculpation would be admissible under Federal Rule of Evidence 804(b)(3). In either event, defendants contend that Cherry's declarations entitle them to a new trial.

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 severances, 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 Ocasio 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 permission to shoot Williams and Cherry. Albizu conceived of a plan to murder Ocasio, and he discussed his plan with Pillot, Williams, and Cherry. He also discussed his plan with Camacho and Rodriguez, who together used to pay C & C "rent" to sell drugs in the gang's neighborhood and were friendly with Albizu. In late December of 1992, Albizu, Williams, Cherry, Camacho, Rodriguez, and a cousin of Rodriguez's agreed to meet to kill Ocasio, but the plan fell through when Cherry failed to appear.

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 stayed the entire day and evening of January 2, 1993. The government tried to show that the witnesses were trying to help the defendants out of concern for them and argued that their stories were patently incredible. Defendants also presented as a witness Luis Garcia, the surviving victim of the shootings. Garcia testified that he saw Williams and Cherry, not Williams and Camacho, commit the shootings. He also testified that he encountered Cherry several days after he was released from the hospital and that Cherry told him that he was not the intended target of the shootings. On cross-examination, the government elicited from Garcia that he only glimpsed the shooters in the brief moment after he was shot in the back, as he turned and fell to the ground, and that he only saw the profile of the shooter whom he identified as Cherry. The government also tried to discredit Garcia by pointing to ballistics evidence to show that Garcia was mistaken about who was shot by Williams and who was shot by the second assailant.

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 appeared 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, 1998 WL 472844 (S.D.N.Y. Aug. 10, 1998). In April of 1999, defendants filed a second motion for a new trial based on newly discovered evidence (the "second motion"). Defendants requested a grant of judicial immunity so that a proposed witness, Gregory Cherry, could testify that he committed the crimes for which defendants were convicted. Counsel for Rodriguez had met with Cherry in the fall of 1997 and the fall of 1998 and stated in an affidavit that Cherry told her that he knew who was responsible for the murders and that Camacho and Rodriguez were not involved. Cherry told her that he would testify only if he was granted immunity. Defendants also argued in their second motion that a new trial was warranted because of prosecutorial misconduct. The Court declined to grant judicial immunity and found that there was no newly discovered evidence of prosecutorial misconduct that would warrant a new trial. United States v. Camacho, No. S12 94 Cr. 313, 1999 WL 1084229 (S.D.N.Y. Dec. 1, 1999). Judgment was entered against Rodriguez on April...