United States v. Tellier

83 F.3d 578, 1996 WL 257580
CourtCourt of Appeals for the Second Circuit
DecidedMay 10, 1996
DocketNo. 18, Docket 94-1451
StatusPublished
Cited by55 cases

This text of 83 F.3d 578 (United States v. Tellier) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tellier, 83 F.3d 578, 1996 WL 257580 (2d Cir. 1996).

Opinion

WINTER, Circuit Judge:

This is a multi-defendant case involving numerous federal crimes, including racketeering, firearms, transportation of stolen property, and other violations. The trial involved vast evidence of criminal activity over a ten-year period by the so-called “Tellier Organization.” That activity included “snatch and grab” robberies, murders, and drug distribution. We decide all but one issue raised by these appeals1 by summary order filed this day. See 2d Cir.R. § 0.23. We issue this published opinion with respect to a claim raised by appellant Roy Tellier in his pro se brief that requires reversal of his convictions for participation in a racketeering enterprise and for racketeering conspiracy under the Racketeering Influenced and Corrupt Organizations statute (“RICO”), 18 [580]*580U.S.C. §§ 1962(c). and (d), and for a violation of the Hobbs Act, 18 U.S.C. § 1961.

The RICO counts against Roy Tellier alleged only two predicate acts, one of which was a conspiracy to distribute stolen marijuana. Roy Tellier contends that the district court improperly admitted the testimony of Orlando Rodriguez concerning a hearsay statement by Roy’s brother Robin Tellier indicating that Roy had sold the stolen marijuana. Although the hearsay was the only evidence that implicated Roy in the conspiracy to distribute marijuana, it was admitted as the declaration of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E). Roy Tellier contends that the statement was inadmissible and, as a result, the evidence of a pattern of racketeering on both the substantive RICO count and the RICO conspiracy count was legally insufficient. We agree that the statement was inadmissible and that, consequently, there was insufficient evidence of two predicate acts as required under RICO. See 18 U.S.C. § 1961(1) & (5); see generally United States v. Indelicato, 865 F.2d 1370 (2d Cir.) (in banc), cert. denied, 493 U.S. 811, 110 S.Ct. 56, 107 L.Ed.2d 24 (1989).

We briefly summarize the factual background of the pertinent predicate act, the conspiracy to distribute marijuana. During the spring of 1991, Robin Tellier, Orlando Rodriguez, and another individual burglarized a marijuana dealer’s apartment in Queens, New York. The proceeds of the robbery included approximately eight pounds of marijuana, which the burglars decided to sell. At trial, the government sought to prove that Roy Tellier conspired with the burglars to sell the stolen marijuana on Long Island. Roy Tellier maintains, and the government does not dispute, that the only evidence linking him to the marijuana conspiracy was Rodriguez’s recitation of what Robin Tellier had told him about Roy selling the marijuana. Rodriguez’s testimony was admitted under Federal Rule of Evidence 801(d)(2)(E), which excludes from the deflnition of hearsay statements made by a co-conspirator during the course, and in furtherance, of a conspiracy.

Extra-judicial statements by co-conspirators may be admitted if the government establishes by a preponderance of the evidence that there was a conspiracy, that both the declarant and the party against whom the statements are offered were members of the conspiracy, and that the statements were made during and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987) (quoting Fed. R.Evid. 801(d)(2)(E)); United States v. Orena, 32 F.3d 704, 711 (2d Cir.1994). In making these preliminary factual determinations under Federal Rule of Evidence 104(a), the court may consider the hearsay statements themselves. Bourjaily, 483 U.S. at 177-78, 107 S.Ct. at 2779-80. However, these hearsay statements are presumptively unreliable, id. at 179, 107 S.Ct. at 2780-81, and, for such statements to be admissible, there must be some independent corroborating evidence of the defendant’s participation in the conspiracy. See United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988); United States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir.) (“Since Bourjaily, all circuits addressing the issue have explicitly held absent some independent, corroborating evidence of defendant’s knowledge of and participation in the conspiracy, the out-of-court statements remain inadmissible.”) (citing cases), cert. denied, — U.S. -, 115 S.Ct. 152, 130 L.Ed.2d 91 (1994); United States v. Bentve-na, 319 F.2d 916, 948-49 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 346, 353, 354, 355, 360, 11 L.Ed.2d 271, 272 (1963).

As noted, Robin Tellier’s hearsay statement was the only evidence of Roy Tellier’s participation in the marijuana conspiracy. Because there was no independent corroborative evidence of Roy’s participation in that conspiracy,2 the proffered hearsay statement was inadmissible. The government [581]*581seeks to avoid this conclusion by suggesting that Robin Tellier’s hearsay statement was made not only in furtherance of the marijuana conspiracy but also in furtherance of the RICO conspiracy of which both Robin and Roy Tellier were convicted. With respect to the RICO conspiracy, the government argues, there is sufficient independent corroborating proof of Roy Tellier’s participation in it to permit the admission into evidence of Robin Tellier’s statements to Rodriguez.

The evidence underlying the RICO conspiracy convictions amply demonstrates the existence of the “Tellier Organization,” a RICO enterprise. See 18 U.S.C. § 1961(4). There is no dispute that Robin Tellier’s statement about the sale of the stolen marijuana was in furtherance of a conspiracy to participate in that enterprise. However, under RICO § 1962(d), proof of Roy Tellier’s membership in the RICO conspiracy requires evidence that Roy participated in the enterprise through a pattern of racketeering activity, or agreed to do so. Proof of the pattern in turn must include two predicate acts. “[T]o convict on a RICO conspiracy [the government] must prove that the defendant himself at least agreed to commit two or more predicate crimes,” United States v.

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Bluebook (online)
83 F.3d 578, 1996 WL 257580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tellier-ca2-1996.