Opinion
S2 01 Crim. 420 (LAK)
August 19, 2002
ORDER
The government moves in limine to admit portions of the plea allocution of William B. Barrow, defendant's co-defendant and alleged co-conspirator, given when he pleaded guilty to the conspiracy with which he and the defendant are charged. The theory is that the redacted allocution is a statement against penal interest, that Barrow is unavailable because his attorney has represented that he would invoke the Fifth Amendment if called as a witness and that the relevant portion of the allocution is sufficiently trustworthy. See generally United States v. Petrillo, 237 F.3d 119 (2d Cir. 2000); United States v. Gallego, 191 F.3d 156, 166-68 (2d Cir. 2000). The evidence is offered, moreover, only as some evidence of the existence of the charged conspiracy. Defendant challenges each element of the government's argument.
1. Defendant contends that Barrow must invoke the privilege in open court in order for the government to established that he is unavailable. That is a vast overstatement. See United States v. Williams, 927 F.2d 95, 98-99 (2d Cir. 1991). Nevertheless, in an excess of caution, the Court will conduct a hearing on September 24, 2002, at 9:45 a.m., immediately prior to jury selection, at which the government, if it persists in offering the allocution, may call Barrow to the stand and establish that he would invoke the privilege in response to any questions asked of him if he were called as a witness at trial.
2. The statements the government seeks to have admitted, contrary to defendant's argument, quite plainly were against Barrow's penal interest, directly self-inculpatory, against his penal interest, and well within the scope of Fed.R.Evid. 804(b)(3). In view of the fact that Barrow pleaded guilty to count one of the indictment, which charged a conspiracy to violate 18 U.S.C. § 514(a)(2), his statements that he did so in combination with another person went to an essential element of that charge and were not non-self incriminatory statements about that person.
3. In this instance, there are sufficient "particularized guarantees of trustworthiness," see Gallego, 191 F.3d at 168, to warrant receipt of the allocution. The allocution was delivered under oath before a judge. Barrow faces significant jail time in consequence of the plea. As in Gallego, the only portion of the allocution that will be received is that which is self-inculpatory, and thus especially trustworthy, and the jury will be given an appropriate limiting instruction if it is requested. Id. at 168 n. 5; see also Moskowitz, 215 F.3d at 269.
4. Defendant complains that receipt of the allocution would violate United States v. Bruton, 391 U.S. 123 (1968), evidently on the theory that the redacted allocution states that Barrow conspired with "the only `[other]' defendant charged in the indictment." Letter, Nicolas Velez, Esq., to Court, July 29, 2002, at 5. After reviewing the government's initial proposed version of the allocution, the Court invited the parties to brief the issues whether the receipt of the redacted transcript would violate defendant's Bruton rights given that (a) Count Three of the indictment charges that defendant and Barrow committed the substantive offense, the commission of which was an alleged object of the conspiracy, and (b) Barrow allocuted to Count Three, implicating another unnamed person. It invited comment also on whether any such problem could be avoided by a limiting instruction and whether the evidence in any case should be excluded under Rule 403. The government responded with a revised redacted allocution and a letter brief. Defendant made no submission.
Defendant's counsel misreads the allocution and, insofar as the allocution is offered as evidence of the existence of the charged conspiracy, the indictment. The redacted allocution says only that Barrow conspired with "another person" without referring to the indictment or any other circumstances that might imply the identity thereof. The conspiracy count of the indictment charges that Barrow and defendant, "together with others known and unknown," conspired to violate 18 U.S.C. § 514(a)(2). Indictment S2 01 Crim. 420 (LAK), ¶¶ 1-2. In consequence, Barrow's statement that he acted with "another person," insofar as it goes to the conspiracy count, presents no Bruton problem for the simple reason that there is nothing to suggest that the other person with whom he acted was the defendant. Indeed, as noted above, the fact that a complaint was filed against David Castro suggests that the alleged conspiracy may have involved persons in addition to Barrow and the defendant. Were the conspiracy count the only one to which Barrow pleaded, there in consequence would have been no problem. The difficulty, however, arose from the fact that Barrow pleaded guilty also to Count Three, a count on which only Barrow and the defendant were indicted, and Barrow's allocution as originally redacted included statements that arguably would have led the jury to conclude that Barrow had stated under oath that he and the defendant committed that offense.
The government's revised proposed redaction solves this problem. It would place before the jury only Barrow's admission of guilt on the conspiracy count, eliminating references to Count Three. Further, insofar as Barrow described the conduct in which he and "another person" engaged, the allocution has been redacted to eliminate enough detail so that it is not self evident that the other person to whom Barrow referred was the defendant. For reasons stated by the government in its August 15, 2002 letter at pages 2 through 4, this is sufficient.
Accordingly, the government's in limine motion is granted to the extent that the allocution, redacted as attached to the August 15, 2002 letter as Exhibit A, will be received in evidence, subject to a determination that Barrow is unavailable at the time of trial and subject also to a limiting instruction if such an instruction is requested by defendant.
SO ORDERED.