United States v. Frederick Tropeano, and Marlon Tropeano, David Barroso, Jr.
2001 U.S. App. LEXIS 12096, 252 F.3d 653, 56 Fed. R. Serv. 3d 344 (2001)
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Rule of Law:
A co-defendant's statement during a plea allocution, prompted by the government, that serves to implicate other conspirators but does not further incriminate the declarant, is not a statement against penal interest under Fed. R. Evid. 804(b)(3) because it may be motivated by a desire to curry favor and thus lacks sufficient guarantees of trustworthiness.
Facts:
- David Barroso, Jr., Marlon Tropeano, and Frederick Tropeano were employees at a brokerage firm.
- They engaged in a scheme to defraud four of the firm's customers.
- The scheme involved using forged documents to transfer customer accounts to other brokerage firms without the customers' knowledge.
- After transferring the accounts, the conspirators liquidated them and took the proceeds.
- Barroso was recorded on audiotape urgently requesting the liquidation of the transferred accounts.
- On one recording, Barroso falsely claimed to have authority over an account because of his friendship with the owner's son.
- The owner of that account later testified that he did not have any sons and had never met Barroso.
- Barroso also endorsed a check drawn from one of the fraudulently transferred accounts.
Procedural Posture:
- David Barroso's co-defendants, Marlon and Frederick Tropeano, pleaded guilty to conspiracy charges in the U.S. District Court for the Southern District of New York.
- During his plea allocution, at the prosecutor's prompting, Marlon Tropeano stated he conspired with 'more than one person.'
- Barroso proceeded to a jury trial in the same district court, where his defense was that he was an unknowing participant.
- The government offered portions of the Tropeanos' plea allocutions as evidence of the conspiracy.
- The district court admitted Marlon Tropeano's statement that he conspired with 'more than one person' over Barroso's objection.
- The jury returned a guilty verdict against Barroso.
- Barroso filed a post-conviction motion for a judgment of acquittal or a new trial, which the district court denied.
- Barroso (appellant) appealed his conviction to the U.S. Court of Appeals for the Second Circuit, challenging, among other things, the admission of the plea allocution statement.
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Issue:
Does the admission of a non-testifying co-defendant's plea allocution statement, made in response to a government-prompted question clarifying the number of conspirators, violate the hearsay rule (Fed. R. Evid. 804(b)(3)) and the Confrontation Clause?
Opinions:
Majority - Winter, Circuit Judge
Yes. The admission of the co-defendant's statement was an error because a statement made during a plea allocution, prompted by the government, that does not further incriminate the declarant but is useful to the government's case against another defendant lacks the requisite trustworthiness to qualify as a statement against penal interest under Fed. R. Evid. 804(b)(3). The court's reasoning followed the Supreme Court's decision in Williamson v. United States, which requires that only truly self-inculpatory statements be admitted under this hearsay exception. Here, Marlon Tropeano had already admitted to conspiring 'with others,' which was sufficient for his plea. The government-prompted follow-up question about whether he conspired with 'one person or more than one person' added nothing to his own guilt but was highly useful to the government's case against Barroso. Because Marlon had not yet been sentenced, he had 'everything to gain and nothing to lose' by currying favor with the prosecutor. Therefore, his statement lacked the necessary guarantees of reliability. However, the court found this error to be harmless beyond a reasonable doubt due to the overwhelming independent evidence of Barroso's guilt, including incriminating audiotapes and his endorsement of a fraudulent check.
Analysis:
This decision refines the application of the statement against penal interest exception to hearsay, particularly in the context of plea allocutions. It cautions prosecutors against using plea colloquies to develop evidence against co-defendants, as statements elicited for this purpose, rather than to establish the declarant's own guilt, will likely be deemed inadmissible. The case reinforces the principle from Williamson v. United States that each portion of a declarant's narrative must be independently self-inculpatory to be admissible, preventing the admission of collateral statements that may simply be attempts to curry favor with the government. This holding protects defendants from the introduction of unreliable hearsay from co-defendants who have a strong incentive to cooperate with the prosecution.
