UNITED STATES OF AMERICA -against- STEVEN CAMACHO and JAIME RODRIGUEZ, Defendants.
S12 94 Cr. 313 (CSH)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
163 F. Supp. 2d 287

Decided – October 1, 2001

The opinion of the court is written by Charles S. Haight, Jr.:

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.

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1 The members of the C&C gang were frequently referred to at trial by their nicknames: Albizu–“Pito,” Pillot–“Joey,” Williams–“Tree,” and Cherry–“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”).

One issue in this case is credibility of testimony from Cherry (aka Ninja):

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 other 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, 59 F.3d at 364.

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 the government may cross-examine Thomas fully as to whether or not in fact Cherry made the statements Thomas ascribes to him. The government may also offer extrinsic evidence (if it has any) bearing upon that question of fact.

The Court also decided to “deny defendants’ request for a grant of judicial immunity for Gregory Cherry to testify.”

This is not the first time Judge Haight had the opportunity publish the word “ninja” in the federal record. Recall NinjaLaw post about “Burger King Kids Club with Mutant Ninja Turtles” in which Judge Haight used the Teenage Mutant Ninja Turtles to support the holding that concepts and ideas of multi-ethnicity cannot be copyrighted.

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