Case 1:12-cr-00480-RWT Document 57 Filed 07/19/13 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. JOSE JOAQUIN MORALES, Defendant. * * * * * * * *

CRIM. NO. RWT 12 -480

GOVERNMENTS MOTION IN LIMINE TO ADMIT DECEDENTS STATEMENTS Comes now the United States of America, by and through undersigned counsel, and hereby files this Motion in Limine to Admit Decedents Statements pursuant to Federal Rule of Evidence 804(b)(6). I. BACKGROUND The Government moves to admit statements of the murder victim, Robert Long, made just prior to his shooting death on March 24, 2008. As will be discussed more fully below, on or about March 11, 2008, Long met with Baltimore City police detectives about crimes he committed with Morales. The meeting was recorded. Long also shared his fears regarding Morales with the state prosecutor. Finally, on March 18, 2008, the Thursday before his murder, Long discussed his decision to cooperate against Morales and his concern that Morales might be aware of his cooperation with a close friend. The Government will seek to admit these out-of-court statements despite the unavailability of Long as a witness. As discussed below, the statements are admissible at Morales trial. II. FACTS The Governments theory is that Jose Morales had the motive to kill Robert Long because Long decided to "turn state's evidence" against Morales in a series of large construction equipment 1

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thefts that were pending against Morales in March 2008. Long proffered with City auto theft detectives on March 11, 2008 and was murdered less than two weeks later. The motive evidence in this case is compelling and will be proven through, among other things, the testimony of the detectives on the Morales/Long theft investigation, the testimony of the prosecutor on the pending state cases, Long's own statement to detectives (which is video-recorded), evidence that Morales threatened Long, the testimony of the attorneys representing Morales and Long, cell phone records, and the timing of the events leading up to Longs murder. In February 2007, a warrant was issued for Morales and Long for a series of construction equipment thefts. There were two previous cases involving Morales as well. All three district court cases were transferred to Baltimore City Circuit Court on August 24, 2007. Morales had a number of other legal problems in this same time frame1 . On October 10, 2007, an attorney, who shared office space with Needleman, Morales attorney, entered his appearance for Long in the theft case. Needleman will testify that Morales gave Needleman the money to pay for the representation of Long and that Needleman provided the money to the lawyer. On February 19, 2008, the cases were postponed for trial until April 17, 2008. On March 10, 2008, at 11:45 a.m., the police homicide files reflect that Long called Cpl Sunderland to discuss possibly cooperating against Morales. Long articulated to the detectives that he did not want his attorney, to be present because he did not trust him based on that attorneys close relationship with Needleman. The States Attorneys Office (SAO) did not believe it could meet

The Government will seek to admit Morales arrest history at the trial through the state prosecutor. It is admissible under Federal Rule of Evidence 404(b) as further evidence of Morales motive to kill Long. Though Longs cooperation was in a series of district court theft cases, the fact of the matter is that Morales had accumulated a criminal history that made it more likely he would be imprisoned for a period of time if convicted. 2

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with Long without his attorney and therefore advised the attorney and invited him to the proffer themselves. On March 11, 2008, in a meeting that is documented by a memorandum in the police homicide file and a videotaped interview, Long met with the police and told them that he stole the scaffolding at Jose Morales' request. Present at the meeting were Long, his lawyer, an assistant states attorney, and the detectives. Long provided information regarding the thefts and other

information against Morales to include an arson. Long also stated that he only told his best friend (whom he was then living with) that he was cooperating and that he trusted him. Long was instructed not to tell anyone else. Long told the state prosecutor that "if Jose Morales knew that he was

talking to us [the State's Attorney's Office] he would kill him." As a result, the prosecutor took steps to determine if Long were eligible for witness protection services. In addition to Longs description of the crimes he and Morales committed together, the Government seeks to admit other statements Long made on March 11, 2008. For example, Long stated to detectives when he called them directly to offer his cooperation that he did not want his attorney present at the proffer. The evidence will be that his attorney was paid for by Morales. Long said that he did not trust his attorney not to tell Morales' attorney about his cooperation and his statements about the crimes he engaged in for and at the behest of Morales. Long also provided statements to detectives about why he was coming forward. On this point, the following is an excerpt from his recorded interview: (Robert Long's statements follow his initials "RL" and statements by the Detective follow the initial "D".) RL: D: Just pissed off and I just want to get this shit over with. Who are you pissed off at?

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RL: D: RL:

Jose...keep threatening somebody know what I'm saying How is he threatening you? Calling me up on the phone telling me he's gonna beat me with a baseball bat and whoop my ass. When was the last time you spoke with him?

D:

RL: Three days ago he called me up from...sounded like he was in a night club said I can't wait to catch you...know what I mean. Can't wait to beat you with a baseball bat and whoop your ass, so I'm gonna give him something to whoop my ass for. D: RL: D: Had you told him before that you were going to come forward and talk to the police? No I ain't tell him nothing. Why are you getting these calls? Why don't we just talk about the crimes...I mean does it really matter?

Longs Attorney:

Long also admitted he used crack, which motivated him to do the thefts for Morales. This admission by Long is also relevant to the Government's case and the Government will seek to admit it at trial because Long was lured by his killers out of his house to do drugs the night of his murder. The core of the interview describes the scope and nature of the crimes he committed with Morales. It is important to show how entrenched Long and Morales were with one another as it provides additional motive evidence of why Morales would want to have him murdered. To this end, for example, Long stated he knew Jose Morales "for about ten years, eleven years. Ever since I've been working with him" and that the current state of their relationship was: It was good then, it ain't worth a shit now. Actually the last few years its been going down hill with me being strung out I was stealing from him you know what I mean. He would beat me for money out of my checks so I was taking from him and selling his shit. Long also provided information about an assault charge involving Morales and another witness, 4

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Warren Lumpkin a/k/a "Pie" (now deceased). This information is relevant to Longs mindset and Morales modus operandi. According to Long: RL: [Does] Jose go to Pies house? Oh I have no idea.

State's Attorney (SA): Break into his car all that kind of stuff? RL: SA: RL: D: RL: D: RL: I know nothing about that. What about chasing up Patapsco Ave? I was in jail when I heard about that...tried to run him off of the road? Yeah. How did you hear about that? When Jose got me out that day he told me the next day.. What did he tell you? He said he was trying to run Pie off the road said the little bitch was scared and Pie was yelling out the window "they made me do it they made me do it." That's what he was telling me. That was what Jose told me you know what Im saying.

Long also spoke about Morales' own motivation to have Long commit crimes for him - a fact relevant here where Morales hired others to kill Long: D: RL: Why do you think Jose asked you of all people to help do these things? Because he knew I was strung out and I would do anything to make a couple dollars to get high you know what im saying. Why didn't Jose do it himself? Because he wouldn't get the charge...find a guinea pig to do it for him and they are the one that suffers not him from what I hear he has done it all his life. Based on Long's statements, detectives obtained a search and seizure warrant for Morales' home, 1432 Grimm Road, Severn, Maryland. The police executed the warrant on Wednesday, March 18, 2008. The police found the scaffolding and other evidence related to the thefts. This date 5

D: RL:

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is highly relevant to the chronology of Morales decision to have Long killed. The warrant clearly infuriated Morales and led him to contact his attorney, Needleman, to confirm what he suspected: that Long had betrayed him and talked to the police. Indeed, on March 19, 2008, four days before his death, Long ran into a close friend at a local restaurant. Long told his friend about his decision to "turn state's evidence" against Jose Morales. These statements to his friend are also admissible under 804(b)(6). Specifically, the friend will testify that Long raised the subject of a problem he was having with Morales. The witness will describe Long as agitated and very upset because he had told H in confidence (and no one else) that he had turned states evidence against Morales. (The Government will link H directly to Morales through, among other evidence, phone records). Long told his friend that he thought it odd that Morales and H were out riding together that Thursday because both he and H were arguing because Morales had not paid them for work. Long was angry that Morales had not gotten him a lawyer for the upcoming trial and was concerned that H, whom he had confided in, would tell Morales that he had turned States evidence. The friend asked Long if Baltimore City offered witness protection. Long stated they did but he responded "Fuck Jose. I ain't worried about him." But the friend told Long that he needed to worry about it because Morales had nothing to lose and that he was facing thirty years. was the last time that Long and his friend would speak before Longs murder. The evidence will show that Long decided to stay the next few nights with his sister, sleeping on her couch, and getting her to arrange a covert visit with his six-year-old daughter (Long and the child's mother were estranged). The evidence will also show that Long was subsequently lulled out on Sunday night by two brothers whom the Government will contend conspired with Morales to This

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kill Long, this conversation is directly admissible under Rule 804(b)(6) as stated above. Among other things, it provides context for Longs state of mind and a reason for why he was not at his usual place of residence the weekend before his murder. The law is clear that Longs statements to the police, the prosecutor and his friend about his cooperation are admissible under Rule 804(b)(6), Rule 807, and Rule 403. III. LEGAL FRAMEWORK It is well established that a defendant's misconduct may work a forfeiture of his or her constitutional right of confrontation, see Illinois v. Allen, 397 U.S. 337, 343 (1970), and that the right of confrontation is forfeited with respect to any witness or potential witness whose absence a defendant wrongfully procures. See United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976). Hearsay objections are similarly forfeited under Fed. R. Evid. 804(b)(6) (often referred to as the forfeiture by wrongdoing rule), which excludes from the prohibition on hearsay any "statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Thus, Rule 804(b)(6) is one hearsay exception2 which permits the government to admit statements of the murder victim in this case against the defendant. The Rule requires that the government prove that the Defendant "engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability"3 of Mr. Long as a witness. Fed. R. Evid. 804(b)(6). The policy behind this rule is to prevent a defendant from

This Motion addresses the unique questions raised by the forfeiture by wrongdoing exception to the hearsay rule. Some of the out-of-court statements made by Long in this case are alternatively admissible under other theories. Rule 804(a) defines "unavailability as a witness" and includes situations in which the declarant is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. Long is dead. 7
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benefitting from his own wrongdoing. See United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982). Rule 804(b)(6) was codified in 1997 and, according to the legislative history, recognizes the need for a prophylactic rule to deal with abhorrent behavior "which strikes at the heart of the system of justice itself." Id. The Supreme Court confirmed the continuing vitality of the

forfeiture-by-wrongdoing doctrine in Crawford v. Washington, 541 U.S. 36, 62 (2004). The governing precedent on Rule 804(b)(6) in this District is United States v. Gray, 405 F.3d 227 (4th Cir. 2005). See also United States v. Lentz, 524 F.3d 501, 527 (4th Cir. 2008) (Court properly admitted victims statements in the trial for the kidnaping and murder of the defendants wife, who was expected to testify against him in a custody hearing). In Gray, the Fourth Circuit clarified the scope of the "forfeiture-by-wrongdoing" exception, holding that "Rule 804(b)(6) applies whenever a defendant's wrongdoing was intended to, and did, render the declarant unavailable as a witness against the defendant, without regard to the nature of the charges at the trial in which the declarant statements are offered." Gray, 405 F.3d at 241 (emphasis in original). Thus, once a court has determined that a defendant has intentionally procured the unavailability of a declarant as a witness to prevent him from testifying, the declarant's statements are admissible not only in the original trial for which the statements were elicited, but also in any subsequent proceedings in which the declarant's statements are relevant. Id. This holding effectuates the underlying rationale of the forfeiture-by-wrongdoing exception and prevents a defendant from benefitting from his misconduct. Id. at 241-42. In Gray, the defendant, Josephine Gray, was on trial for mail and wire fraud relating to her receipt of insurance proceeds following her husband, Robert Gray's, death. Id. at 230. Prior to his death, Robert Gray brought criminal charges against the defendant for assault and was expected to

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testify in the trial. Id. at 231. The Fourth Circuit affirmed the district court's admission of Robert Gray's statements, even though the defendant intended to prevent Robert Gray from testifying in a trial different than her pending federal fraud case. Id. The Fourth Circuit found that, to assess whether the statements are admissible, the district court need only find, by a preponderance of the evidence, that (1) the defendant engaged in some wrongdoing (2) that was intended to procure the decedents unavailability as a witness and (3) that did, in fact, procure his unavailability as a witness. Id. at 243. Other circuits have similarly interpreted Rule 804(b)(6) broadly to effectuate its purpose of preventing a defendant from benefitting from his wrongdoing. E.g., United States v. Stewart, 485 F.3d 666, 672 (2d Cir. 2007) (admitting the statements of a murdered witness even though the defendant intended to prevent the witness from testifying at a different trial); United States v. Johnson, 495 F.3d 951, 972 (8th Cir. 2007) (holding defendant forfeited her confrontation rights even though she worked to procure the unavailability of a declarant as a witness against a different defendant); United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999) (holding the statements of a murder victim were admissible at the murder trial even though the defendant intended to procure the victim's unavailability as a witness in a separate trial). Nor does the government have to prove that the defendant personally committed the crime procuring a declarants unavailability. In United States v. Rivera, 412 F.3d 562, 567 (4th Cir. 2005), the Fourth Circuit held that the defendant "need only acquiesce in wrongdoing to trigger the application of Rule 804(b)(6)." Id. Similarly, in United States v. Dinkins, 691 F.3d 358, 384 (4th Cir. 2012), the Fourth Circuit confirmed that the forfeiture-by-wrongdoing exception allows statements to be admitted when a "defendant's co-conspirators engaged in the wrongdoing that

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ultimately rendered the declarant unavailable as a witness." Thus, when a defendant acquiesces in wrongfully causing the unavailability of a declarant as a witness, such as by hiring a conspirator to murder the declarant, the defendant forfeits his confrontation rights. Id. at 384-385. The Indictment charges that the defendant solicited the murder of Robert Long. The Government can show by a preponderance of the evidence that Morales engaged in wrongdoing to procure the unavailability of Robert Long by hiring the men that killed Long. Therefore, Longs outof-court statements are admissible. The Government proffers that it will produce evidence of Morales confessions to the murder to at least two different witnesses. The evidence will be that Morales had Long killed because Long decided thirteen days before his murder to cooperate against. Morales. This information alone satisfies the Governments need to establish, as a gateway for admissibility of decedents statements, that the defendant is culpable for his ultimate unavailability. See United States v. Savage, No. 07-550-03, 2013 WL 372947, at *5 (E.D.Pa. Jan. 31, 2013) (finding that a pretrial hearing is not required to determine whether the forfeiture by wrongdoing exception applies); United States v. Jimenez-Bencevi, No. 12-221, 2013 WL 1429445, at *2 (D.Puerto Rico Apr. 5, 2013) (We are not required to hold an evidentiary hearing before deciding to permit the admission of these statements at trial.); United States v. Baskerville, 448 F.App'x. 243, 250 n. 5 (3d Cir. 2011) (District Court's decision to forgo a mini-trial on admissibility of murdered witness' statements was reasonable). The Fourth Circuit accepted this evidentiary approach in Gray, 405 F.3d 227 (4th Cir. 2005), and in United States v. Johnson, 219 F.3d 349, 356 (4th Cir. 2000), cert. denied, 531 U.S. 1024 (2000), where the district court properly admitted hearsay statements that the declarant had allegedly made regarding defendant's involvement in a murder, on the governments theory that the defendant

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had forfeited his hearsay objections by murdering the declarant. On appeal, the defendant complained that the an evidentiary hearing was required. Johnson, 219 F.3d at 356. The Fourth Circuit disagreed stating that the district court did not err "when it accepted the government's position that [defendant] did kill [witness], presumably contingent on the government proving [so in trial]. Id. (citing Emery, 186 F.3d at 926 (holding a trial court need not hold a hearing under Rule 804(b)(6), rather it can admit the evidence at trial "contingent upon proof of the underlying murder by a preponderance of the evidence")). In this case, witnesses will testify that the defendant confessed to his role in the murder to them. The testimony of the witnesses is highly corroborated by circumstantial evidence to include phone records and motive evidence. Moreover, the decedent himself articulated fear to a state prosecutor that he would be killed if the defendant found out the witness provided information to law enforcement about the defendants criminal conduct. The court can also accord weight to the fact that the defendant benefitted from the death of the witness because it did, in fact, prevent the witness' testimony against him. United States v. Mastrangelo, 662 F.2d 946, 951-52 (2d Cir. 1981). In sum, the grand jury in this case has already found probable cause to believe that Morales murdered Robert Long. The Federal Rules of Evidence require a showing that Morales engaged in wrongdoing to procure the unavailability by a preponderance of the evidence. Corroborated evidence of Morales confessions to the murders is manifestly sufficient for finding that the defendant engaged or acquiesced in wrongdoing to procure unavailability of Robert Long. When viewed in light of the proffers made by the Government above, clearly the preliminary threshold for admissibility under Rule 804(b)(6) has been met and Longs out-of-court statements are admissible at trial.

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IV.

ALTERNATIVE THEORY OF ADMISSIBILITY4: THE RESIDUAL EXCEPTION - RULE 807 In any event, the out-of-court statements are alternatively admissible under Rule 807 because

they contain a strong indicia of trustworthiness in that all turn out to be self-fulfilling. In other words, the reliability of the statements is corroborated by the circumstances of the murders themselves. Rule 807 provides: (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice. (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarants name and address, so that the party has a fair opportunity to meet it. Fed. R. Evid. 807. As stated above, Longs statements are probative and go to material facts in the case such as motive. There are circumstantial guarantees of trustworthiness because the statements were provided to law enforcement and are self-corroborating. Refusing to admit Mr. Longs out-ofcourt statements to witnesses subject to cross-examination simply because he is not available to testify at his own murder trial would be nonsensical. Accordingly, the court should allow the various testimony about what Long said to various witnesses at trial. V. BALANCING TEST UNDER RULE 403

There are a myriad of other exceptions that are also applicable to the various statements. For example, Longs statements of fear expressed to the prosecutor reflect his thenexisting state of mind. Rule 803(3). His statements about the crimes he committed were also statements against his interest. Rule 804(3). 12

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Finally, the Court should find that the probative value of Longs statements substantially outweighs any prejudice to the Defendant. It is clearly important to the Governments case to establish Morales motive. The importance of Longs cooperation to the police is readily apparent from his videotaped statement and subsequent search warrant. Long knew Morales for years, and the fact that he expressed fear to the prosecutor is similarly probative. Most importantly, Longs concern that Morales had learned about his cooperation four days before his murder carries powerful circumstantial weight to the events that ensued. It is important to note here that the courts have permitted similar statements by victims in a variety of different contexts and made by a variety of different testifying sources. For example, the decedents out-of-court statement in United States v. Smith, 792 F.2d 441, 443 (4th Cir. 1986), was made to the police. Three separate witnesses testified about the decedents out-of-court statements in Johnson, 219 F.3d at 355. Here, both lay witnesses and law enforcement will testify about the decedents out-of-court statements. The statements will be amply corroborated by other events. Limiting instructions regarding Longs statements about Morales other criminal conduct can be provided to the jury to alleviate any risk of prejudice. See United States v. Aguiar, 975 F.2d 45, 46 (2d Cir. 1992) (when witness refused to testify because of oral and written threats made by the defendant, the court admitted hearsay statements the witness made to other co-conspirators about the defendant's involvement in drug dealing because the district court gave appropriate limiting instructions concerning the hearsay statements and because the statements were amply corroborated by other events). Lastly, in Emery, 186 F.3d at 927, the Court admitted statements of a homicide victim (presumably to federal authorities) concerning the defendant's drug trafficking activities and the

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victim's fear that defendant would retaliate against her for cooperating with law enforcement authorities. The Court found that the statements possessed significant probative value in the prosecution for killing a federal informant, especially with respect to defendant's motive, and that probative value was not substantially outweighed by threat of unfair prejudice or confusion. Id. For the foregoing reasons, Longs statements to the police, the prosecutor, and his friend regarding his cooperation and his fears are properly admitted against Morales, who forfeited the right to challenge admission by procuring Longs unavailability as a witness. Respectfully submitted, Rod J. Rosenstein United States Attorney By:_________/s/__________________ Sandra Wilkinson Martin S. Clarke Assistant United States Attorneys 36 South Charles Street Fourth Floor Baltimore, Maryland 21201 (410) 209-4800

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 19th day of July, 2013, a copy of the foregoing pleading was electronically filed and emailed to counsel of record for Morales via CM/ECF: Jonathan Zucker, Esq. 1350 Connecticut Ave., NW Suite 202 Washington, DC 20036 jonathanzucker@aol.com Gary E. Proctor, Esq. 8 East Mulberry Street Baltimore, MD 21202 gary_proctor@verizon.net /s/ _______________________________ Sandra Wilkinson Assistant United States Attorney

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