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United States v. Lombardo

United States District Court, M.D. Pennsylvania

December 6, 2017

UNITED STATES OF AMERICA,
v.
SAMUEL LOMBARDO, Defendant

          MEMORANDUM

          JAMES M. MUNLEY JUDGE.

         Before 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.

         Background

         The 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.

         Discussion

         The 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 issues seriatim.

         I. Statements Made By Deceased CI

         Prior 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 conversing.

         The CI 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.[1] We will nonetheless review defendant's arguments.

         A. Hearsay

         As 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.

         First, 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.

         The 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.

         B. ...


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