The opinion of the court was delivered by: Eduardo C. Robreno, J.
Several Defendants have challenged the Government's use of tape recordings created by then-acting Government informant, Nicholas Stefanelli (the "Stefanelli Tapes"). Defendant Ligambi filed a Motion to Exclude Recordings Made by Deceased Government Informant Nicholas Stefanelli. ECF No. 560. Defendant Fazzini filed two motions, including a Motion to Suppress Audio Recordings and a Motion to Exclude Tape Recorded Conversations Made by Deceased Government Informant Nicholas Stefanelli. ECF Nos. 685, 686. The Court held hearings on August 9, 2012, and August 17, 2012, and heard argument on these motions. As each relates to the admissibility of the Stefanelli Tapes, the Court will address the motions collectively.*fn1
For the reasons that follow, the Court will deny in full Defendant Ligambi's Motion to Exclude Recordings Made by Deceased Government Informant Nicholas Stefanelli. ECF No. 560. The Court will also deny Defendant Fazzini's Motion to Suppress Audio Recordings. ECF No. 685. And lastly, the Court will also deny in full Defendant Fazzini's Motion to Exclude Tape Recorded Conversations Made by Deceased Government Informant Nicholas Stefanelli. ECF No. 686.
Defendants Ligambi and Fazzini are two of fourteen Defendants charged in a fifty-two count Third Superseding Indictment. ECF No. 723. This case emerged from a criminal investigation spanning ten years and was twice designated a complex case due to the number of Defendants and the nature and quantity of evidence, which includes over 14,000 intercepted wire and oral communications. See ECF Nos. 177, 520. Among other counts, Defendants are charged with conspiring to conduct and participate in the conduct of the affairs of the criminal enterprise, the Philadelphia La Cosa Nostra ("LCN") Family, through a pattern of racketeering activity and through the collection of unlawful debts. The case is specially listed for trial on October 9, 2012.*fn2
On July 6, 2012, in accordance with the Court's Third Scheduling Order (ECF No. 521), dated May 15, 2012, the Government submitted its Pretrial Tape List, identifying the recordings of intercepted communications that the Government may introduce in its case-in-chief. Gov't's Tape List, ECF No. 650. This list included the Stefanelli Tapes, made by then-acting informant, Nicholas Stefanelli, on May 19, 2010 (the "May 2010 tape"), and later on October 21, 2010 (the "October 2010 tape"). Id.
The Government has since provided the United States' Annotated Exhibits in Support of Its Motion in Limine to Admit Racketeering Evidence (the "Annotated Exhibits"). These Annotated Exhibits include transcribed portions of the Stefanelli Tapes that the Government may introduce at trial, together with the evidentiary purposes for which the Government intends to use the evidence. Gov't's Exs. 1, 2.
Preceding the Third Superseding Indictment, in March 2012, the Government disclosed the existence of an additional two-year investigation of the Philadelphia LCN Family and other LCN families, involving Nicholas Stefanelli, a "made" member of the New York Gambino LCN Family who had agreed to cooperate with the Government and secretly record meetings and conversations with organized crime members. Gov't's Resp. to Def. Ligambi's Mot. 2, ECF No. 569. Stefanelli committed suicide in March 2012.
The May 2010 tape recorded a meeting between members of the New York Gambino LCN Family and members of the Philadelphia LCN Family, at the La Griglia Restaurant, in Kenilworth, New Jersey. During this meeting, which lasted approximately five hours, the participants engaged in wide-ranging discussion of both past and present LCN families and their activities.
The October 2010 tape recorded a meeting between members of the Philadelphia LCN Family, at the American Bistro, in Nutley, New Jersey. Similar to the May 2010 tape, during this meeting, the participants discussed past and present activities of LCN families.
Defendant Ligambi challenges the Government's use of the Stefanelli
Tapes against him, and seeks to exclude these recordings as
inadmissible testimonial evidence under the Confrontation Clause of
the Sixth Amendment of the United States Constitution.*fn3
Def. Ligambi's Mot. 2-3, ECF No. 560;*fn4 see
also Def. Ligambi's Mem., ECF No. 805.
Defendant Fazzini raises two challenges to the Government's use of the Stefanelli Tapes against him. First, Defendant Fazzini seeks to suppress this evidence as a violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, codified at 18 U.S.C. §§ 2510-2522 (2006) ("Title III"). Def. Fazzini's Mot. to Suppress 2-3, ECF No. 685.*fn5
Defendant Fazzini asserts that, because none of the defendants consented to the recording and because Nicholas Stefanelli is deceased, the Government cannot demonstrate that at least one party consented to the interception of the communications. Id. Accordingly, Defendant Fazzini argues, absent proof of consent as required by §§ 2511(2)(c) and 2516, using the Stefanelli Tapes against him would violate § 2515 of Title III. Id. Second, Defendant Fazzini seeks to exclude the Stefanelli Tapes, asserting that, without Nicholas Stefanelli, the Government cannot authenticate the voices on the tapes as required by Federal Rule of Evidence 901(a).*fn6 Def. Fazzini's Mot. to Exclude 3-5, ECF No. 686.*fn7
In accordance with the Court's Third Scheduling Order, the Court conducted a hearing regarding these motions on August 9, 2012, which continued on August 17, 2012. After having reviewed the parties' submissions and having heard oral argument, these motions are now ripe for disposition.
III.DEFENDANT LIGAMBI'S MOTION TO EXCLUDE RECORDINGS MADE BY DECEASED GOVERNMENT INFORMANT NICHOLAS STEFANELLI (ECF NO. 560)
First, the Court will address Defendant Ligambi's motion to exclude the Stefanelli Tapes under the Confrontation Clause of the Sixth Amendment. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Under the Sixth Amendment, "testimonial" hearsay statements may not be introduced against a defendant unless the declarant is unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). While the lynchpin of the Crawford decision is the distinction between testimonial and non-testimonial hearsay, the Court expressly declined to provide a comprehensive definition of "testimonial statements." Id. The Court did provide benchmarks, however, through the following examples:
Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extra-judicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be ...