Case 1:02-cr PKC Document 54 Filed 08/15/08 Page 1 of 6 U.S. Department of Justice

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1 Case 1:02-cr PKC Document 54 Filed 08/15/08 Page 1 of 6 U.S. Department of Justice United States Attorney Southern District of New York BY HAND TO CHAMBERS United States District Judge Southern District of New York United States Courthouse 500 Pearl Street New York, New York The Silvio J. Mollo Building One Saint Andrew s Plaza New York, New York Re: United States v. Glen Hardwick S2 02 Cr (PKC) Dear Judge Castel: The Government respectfully submits this letter to inform the Court of certain in limine motions that Judge Casey considered and ruled upon in connection with the initial trial in this case, and to ask the Court to adhere to those rulings. 1 First, the Government sought permission to adduce testimony concerning uncharged conduct involving defendant Glen Hardwick s co-conspirator and brother, Stacey Hardwick, as inextricably intertwined with the charged offenses, as critical to establishing one of the elements the Government must prove under the murder-for-hire statute, and as highly relevant background concerning the conspiracy charged in the Indictment. Specifically, the Government sought to introduce evidence of Stacey Hardwick s prior gun and drug sales to the undercover officer hired to commit the murder that is the subject of the charges in the Indictment, including the guns themselves, and Judge Casey granted the Government s motion. Second, the 1 Defense counsel has informed the Government that she intends to ask the Court to reconsider Judge Casey s ruling on the admissibility of the prior acts of Stacey Hardwick, wich are discussed in more detail below. Should defense counsel in fact file such a motion or any other motion, the Government, consistent with the Court s oral order at the conference on July 1, 2008, intends to submit a response.

2 Case 1:02-cr PKC Document 54 Filed 08/15/08 Page 2 of 6 Page 2 Government moved to preclude cross-examination of Detective Marco Trujillo concerning a personal incident and related internal New York City Police Department administrative proceedings. Judge Casey permitted limited cross-examination of Detective Trujillo concerning this matter, as described in more detail below. Third, the Government sought to preclude cross-examination of Lieutenant Robert Caffrey (or any other witness) about certain statements made by Hector Santiago. Judge Casey granted the Government s motion. Finally, Judge Casey denied defense counsel s motion to preclude the Government from introducing as evidence at trial photographs of Santiago, Santiago s driver s license, and notes Lieutenant Caffrey took containing information taken from Santiago s identification card. Background As charged in the Indictment, the Government will prove that in September 2002, the defendant and his brother Stacey Hardwick conspired to hire an undercover law enforcement officer ( UC ), Detective Marco Trujillo, to murder Hector, an individual with whom the defendant had recently fought, and that Glen Hardwick aided and abetted Stacey Hardwick s commission of the murder for hire. In connection with this plot, on September 10, 2002, the defendant and Stacey Hardwick met with the UC and provided him with a gun to be used to commit the murder. At trial, the Government will offer into evidence a recording of this meeting, as well as the gun the Hardwicks provided to the UC that day, along with other evidence. I. Prior Acts Evidence In the months leading up to September 2002, Stacey Hardwick sold drugs and firearms to the UC on numerous occasions. In total, Stacey Hardwick sold the UC approximately 120 grams of cocaine, a small quantity of marijuana, and five firearms. The Government sought permission to offer evidence of these acts as inextricably intertwined with the charged crimes (specifically, as necessary for the jury to understand the discussion captured on the recording of the September 10, 2002 meeting), to explain that the gun brought to the meeting was intended as consideration for the murder the Hardwicks wanted the UC to commit, and as background to explain why Stacey Hardwick and the defendant would trust the UC enough to hire him to commit a murder. Judge Casey permitted the Government to introduce evidence of Stacey Hardwick s prior dealings with the UC, including the actual guns that Stacey Hardwick sold to the UC. In an oral ruling delivered

3 Case 1:02-cr PKC Document 54 Filed 08/15/08 Page 3 of 6 Page 3 on June 11, 2003, which is attached to this letter as Exhibit A, Judge Casey ruled that the evidence is relevant as inextricably intertwined with the evidence of the charged offense of conspiracy to commit murder for hire and is necessary to complete the story of the crime on trial. Transcript of June 11, 2003 Pre-Trial Conference at 6. II. Cross-Examination of Detective Trujillo The murder-for-hire charges relate to the defendant s involvement with his brother in the hiring of Detective Trujillo the UC to kill a person named Hector. Prior to his involvement in the investigation of this case, Detective Trujillo was involved in an off-duty incident relating to a verbal dispute he had with his girlfriend in February That dispute culminated in Detective Trujillo grabbing his girlfriend s arm, which resulted in some minor bruising. Acquaintances of Trujillo s girlfriend who had heard the couple arguing loudly called the police. Trujillo left before the police arrived, but later reported to his local precinct to be interviewed. The NYPD ultimately charged Trujillo with two specifications for violating two provisions of the NYPD Patrol Guide: (1) engaging in conduct prejudicial to the good order, efficiency, and discipline of the Department; and (2) failing immediately to notify the Department of the incident. Following an administrative proceeding at which he testified, Detective Trujillo was found guilty of both specifications. The Assistant Deputy Commissioner for Trials who presided over the proceeding found that (1) Trujillo had grabbed and bruised his girlfriend s arm, and (2) Trujillo knew the police were responding to the incident and left the scene. He was punished by having to forfeit fifteen vacation days. Judge Casey permitted limited cross-examination of Detective Trujillo with respect to this incident on the only issue that went to Detective Trujillo s credibility. Judge Casey allowed inquiry only as to whether Trujillo knew about the report to the police and heard sirens, and the ruling by the Assistant Deputy Commissioner that she apparently did not accept his testimony that he was not aware that the police had been contacted. Trial Transcript at 44. Judge Casey further ruled that there would be no inquiry into the specific nature of the off-duty incident that led to the administrative proceeding, but only that there was an incident. Trial Tr. at Judge Casey s oral ruling on this issue is attached to this letter as Exhibit B.

4 Case 1:02-cr PKC Document 54 Filed 08/15/08 Page 4 of 6 Page 4 III. Evidence Concerning Hector Santiago Shortly after the events of September 10, 2002, Lieutenant Robert Caffrey located a person in the vicinity of Mount Hope and Walton Avenue in the Bronx the location where the defendant told the UC that Hector, the intended murder victim, could be found who fit the description of Hector the defendant had provided. This person identified himself to Lieutenant Caffrey as Hector, and produced a New York State identification card in the name of Hector Santiago. During his encounter with Hector Santiago, Lieutenant Caffrey warned Santiago of a potential threat to his life, and asked Santiago whether he had recently had a problem with anyone. Santiago denied having had such a problem. Lieutenant Caffrey did not ask Santiago any questions about the Hardwicks or show him photographs of them. Subsequently, prosecutors and an investigator with the United States Attorney s Office spoke on the telephone with a person who identified himself as Hector Santiago and who claimed he did not know Glen or Stacey Hardwick. Judge Casey granted the Government s motion to preclude cross-examination of Lieutenant Caffrey (and any other witnesses) concerning (1) Hector Santiago s statement that he had not had any recent problems with anyone, and (2) statements the person identifying himself as Hector Santiago made over the telephone disavowing any knowledge of Glen or Stacey Hardwick, on the ground that these out-of-court statements were inadmissible hearsay. Trial Tr. at 578. Judge Casey then denied defense counsel s request to preclude the Government from introducing photographs of Santiago, Santiago s driver s license, and notes Lieutenant Caffrey took containing information from Santiago s identification card, ruling that the the photographs and driver s license were relevant and non-hearsay, and that Lieutenant Caffrey s notes were admissible as statements of identification under Federal Rule of Evidence 801(d)(1)(C). Id. at Judge Casey also permitted the Government to elicit from Lieutenant Caffrey that the individual he located at the intersection of Mount Hope and Walton identified himself as Hector, because the statement was being offered not for the truth, but to show that this person was using the same name as that used by the person the defendant and his brother indicated they wanted to have murdered. Id. at 579. Judge Casey s oral ruling on this issue is attached to this letter as Exhibit C.

5 Case 1:02-cr PKC Document 54 Filed 08/15/08 Page 5 of 6 Page 5 Argument I. The Court Should Adhere to Judge Casey s Rulings on the Motions In Limine Insofar as defense counsel seeks reconsideration of any of Judge Casey s rulings on the in limine motions, the law-ofthe-case doctrine counsels against revisiting those rulings. The Government therefore submits that the Court should adhere to Judge Casey s rulings on the motions in limine described above. The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. DiLaura v. Power Auth., 982 F.2d 73, 76 (2d Cir. 1992) (citations and internal quotation marks omitted). This doctrine is admittedly discretionary and does not limit a court s power to reconsider its own decisions prior to final judgment. Id. (Citations and internal quotation marks omitted). As the Second Circuit has noted, however, the major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Id. (citations and internal quotation marks omitted). In a criminal case, the Second Circuit has applied the doctrine and noted that district courts may... depart from the law of the case and reconsider their own decisions for cogent and compelling reasons if those decisions have not been ruled on by the appellate court. United States v. Quintieri, 306 F.3d 1217, 1230 (2d Cir. 2002). Here, there are no cogent and compelling reasons to reconsider Judge Casey s rulings on the in limine motions that were previously filed in this case. The Government is not aware of any intervening change in controlling law or any new evidence that would justify revisiting those rulings, and there was certainly no clear error or manifest injustice in any of Judge Casey s rulings. In fact, in the appeal of Glen Hardwick s conviction, defense counsel did not challenge any of the rulings described above. As a result, the Court of Appeals passed soley upon the Confrontation Clause and sufficiency issues that were raised on appeal, and remanded the case having addressed only those issues and having left Judge Casey s other rulings intact. Accordingly, in the absence of a showing that would justify revisiting the prior rulings in this case a burden defense counsel cannot meet the Court should adhere to Judge Casey s rulings on the motions in limine.

6 Case 1:02-cr PKC Document 54 Filed 08/15/08 Page 6 of 6 Page 6 Conclusion For the reasons set forth above, the Government respectfully submits that the Court should adhere to Judge Casey s rulings on the in limine motions. Respectfully submitted, MICHAEL J. GARCIA United States Attorney By: /s/ Brent Wible Assistant United States Attorney Tel.: (212) Fax: (212) cc: Susan V. Tipograph (by fax)