United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE.
the court for disposition is Defendant Samuel Lombardo's
motion in limine in this criminal case. The motion, which
raises three separate issues, has been briefed, and the
matter is ripe for disposition.
United States of America has charged Samuel Lombardo with the
unlawful possession with the intent to distribute a
controlled substance, the distribution of that controlled
substance, and the carrying of a firearm during and in
relation to the aforementioned distribution, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c).
Specifically, the government accuses the defendant of selling
a quantity of heroin to a confidential informant (hereinafter
“CI”). Law enforcement officers allegedly stopped
the defendant's vehicle upon the completion of a
controlled drug transaction, and recovered a .25 caliber
pistol during a search of his vehicle.
defendant has filed a motion in limine regarding three
evidentiary matters which he expects the government will
present at trial. First, the defendant asks us to prohibit
the government from introducing into evidence various
statements made by the CI in this case, who is now deceased,
including the audio recording from a body wire she wore when
she met with the defendant for the alleged drug transaction.
Next, the defendant asks us to prohibit the government from
introducing evidence of defendant's marital status at the
time of the offense. Finally, the defendant seeks to preclude
all evidence concerning a set of brass knuckles found in his
vehicle at the time of his arrest. We will address these
Statements Made By Deceased CI
to the defendant's arrest on August 13, 2015, the CI in
this case made several statements to law enforcement
officials relating to her knowledge of the defendant's
alleged drug trafficking. Law enforcement officials then
received consent from the CI to set up a telephone wire
intercept and equip her with a body wire during two
controlled drug transactions with the defendant. Her
conversations on the telephone with the defendant before and
after the transactions were recorded. The body wire that the
CI wore during the two transactions also produced an audio
recording in which the defendant and the CI can be heard
will be unable to testify at trial, as she died on June 16,
2016. The defendant has moved to exclude all of the
abovementioned evidence on the grounds the evidence is not
only hearsay, but also implicates his rights under the
Confrontation Clause. The government has not responded to
these arguments, but instead avers that they will be able to
lay a proper foundation for the evidence to be
admitted. We will nonetheless review defendant's
noted above, the defendant argues that both the statements
made by the CI to law enforcement officers as well as the
statements made by the CI on the audio recordings are
inadmissible hearsay. Hearsay is a statement that “the
declarant does not make while testifying at the current trial
or hearing” and is offered in evidence “to prove
the truth of the matter asserted in the statement.”
Fed.R.Evid. 801(c). A statement is not hearsay if it is
offered against a party to the litigation and is “the
party's own statement.” Fed.R.Evid. 801(d)(2)(A).
Thus, the defendant's side of the conversation in these
recordings is not hearsay.
the defendant argues that the statements the CI made directly
to law enforcement officers concerning information about the
defendant's alleged drug trafficking are hearsay because
the CI will not be called as a witness at trial. While we
recognize that these are out of court statements, we will
allow the statements to be admitted so long as the government
does not offer them for the truth of the matter asserted.
See Fed.R.Evid. 801 (excluding statements not
offered for truth of matter asserted from the definition of
hearsay). For example, the government may introduce these
statements to demonstrate the effect that the information had
on the listener-that law enforcement officials began an
investigation into the defendant in response. We will deny
the defendant's motion in limine on this matter.
defendant next argues that the audio recorded conversations
between the CI and the defendant are also inadmissible
hearsay because they, too, constitute out-of-court statements
made by the CI. Similarly, we find that so long as that the
government does not intend to use the CI's statements for
the truth of the matter asserted, the statements made by the
CI on the audio recordings do not violate the rule against
hearsay. The law provides that in situations where the CI is
unavailable to testify at trial, audio recorded statements
made by the CI are admissible to provide context to the
defendant's own alleged statements in the conversation.
See U.S. v. Hendericks, 395 F.3d 173, 182-84 (3d
Cir. 2005); U.S. v. Ligambi, 891 F.Supp.2d 709, 714
(E.D. Pa. September 14, 2012). As previously discussed,
statements made by the defendant are not hearsay. Fed.R.Evid.
801(c). Without the CI's side of the conversation,
however, the jury could not reasonably understand the nature
and meaning of the defendant's statements. As such, we
will deny the defendant's motion.