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United States v. Guerrero

filed: October 27, 1986.

UNITED STATES OF AMERICA
v.
GABRIEL GUERRERO, APPELLANT



On Appeal from the United States District Court for the District of New Jersey, Newark, Criminal No. 85-00102-01.

Author: Adams

Before: ADAMS, STAPLETON, and GARTH, Circuit Judges

Opinion OF THE COURT

ADAMS, Circuit Judge

This is an appeal from a criminal conviction challenging the admission into evidence to testimony that the defendant had threatened a witness in order to induce him not to testify against the defendant at trial. The defendant challenges the district court's admission of this "threat evidence" under Federal Rules of Evidence 403 and 801.

I.

Gabriel Guerrero was convicted in the United States District Court for the District of New Jersey on November 7, 1985, of conspiracy to distribute and to possess with intent to distribute cocaine, and the use of a telephone to facilitate the conspiracy. He was sentenced to 14 years imprisonment.

At the trial, three of Guerrero's alleged co-conspirators, Sergio Cabrera, Kenny Dannenberg and William Challenger, having entered cooperation agreements with the government, testified against him. Although Severo Sanclemente had also signed such an agreement, he refused to testify. Sanclemente's daughter testified that she was not aware that Guerrero was involved in cocaine dealings although she did know a number of her father's associates such as Dannenberg. This contradicted testimony, tending to implicate Guerrero, that she had given at an earlier trial.

Co-conspirator Cabrera, on the other hand, testified that Guerrero had sought through threats to inhibit or deter his cooperation with the government. The alleged threats occurred while Guerrero, Cabrera and Sanclemente were all incarcerated at the Metropolitan Correctional Center ("MCC") in New York City. Both Sanclemente and Cabrera had pleaded guilty to participation in the conspiracy and had been sentenced. Guerrero had subsequently arrived at MCC for detention pending trial. Under a detention order that had been entered by the district court, Guerrero was to be held in an area separate from persons, such as Cabrera and Sanclemente, who were serving sentences.

Cabrera testified that, despite the detention order, on October 6, 1985 Guerrero entered Cabrera's cell and proceeded to discuss the upcoming trial. In the course of their conversation, Guerrero allegedly counseled Cabrera to refuse to testify against him. When Cabrera replied that he knew of others who would testify even if he did not, Guerrero allegedly responded that he would "take care" of these other witnesses, and remarked that he knew where Cabrera's family was living. Cabrera testified that, although the whole exchange had at first seemed casual and friendly, it later occurred to him that Guerrero's words were menacing. Cabrera claims that the next day he reported Guerrero's threats to the U.S. Attorney.

The trial judge, the Honorable John W. Bissell, properly considered the admissibility of this "threat evidence" at a hearing outside the presence of the jury. Judge Bissell first considered whether the encounter Cabrera described was likely to have taken place, and concluded that the alleged meeting was not so incredible as to require rejection out of hand under Federal Rule of Evidence 403.

Holding that the proffered "threat evidence" did not constitute hearsay because it was a statement of a party, admissible pursuant to Rule 801(d)(2)(A), Judge Bissell then considered whether Rule 403 required exclusion of Cabrera's testimony on the grounds that "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentations of cumulative evidence." Fed.R.Evid. 403.

Judge Bissell held that Cabrera's testimony "certainly" had probative value, and was not outweighed by the considerations listed in Rule 403. He therefore allowed Cabrera's testimony concerning Guerrero's alleged threat to be ...


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