Morales Robert Long statements

7/28/2019 Morales Robert Long statements

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA *

*

v. * CRIM. NO. RWT 12 -480*

JOSE JOAQUIN MORALES, *

Defendant. *

* * * * *

GOVERNMENTS MOTION IN LIMINE TO ADMIT DECEDENTS STATEMENTS

Comes now the United States of America, by and through undersigned counsel, and hereby

files this Motion in Limine to Admit Decedents Statements pursuant to Federal Rule of Evidence

804(b)(6).

I. BACKGROUND

The Government moves to admit statements of the murder victim, Robert Long, made just

prior to his shooting death on March 24, 2008. As will be discussed more fully below, on or about

March 11, 2008, Long met with Baltimore City police detectives about crimes he committed with

Morales. The meeting was recorded. Long also shared his fears regarding Morales with the state

prosecutor. Finally, on March 18, 2008, the Thursday before his murder, Long discussed his

decision to cooperate against Morales and his concern that Morales might be aware of his

cooperation with a close friend. The Government will seek to admit these out-of-court statements

despite the unavailability of Long as a witness. As discussed below, the statements are admissible

at Morales trial.

II. FACTS

The Governments theory is that Jose Morales had the motive to kill Robert Long because

Long decided to "turn state's evidence" against Morales in a series of large construction equipment

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Case 1:12-cr-00480-RWT Document 57 Filed 07/19/13 Page 1 of 14


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thefts that were pending against Morales in March 2008. Long proffered with City auto theft

detectives on March 11, 2008 and was murdered less than two weeks later. The motive evidence in

this case is compelling and will be proven through, among other things, the testimony of the

detectives on the Morales/Long theft investigation, the testimony of the prosecutor on the pending

state cases, Long's own statement to detectives (which is video-recorded), evidence that Morales

threatened Long, the testimony of the attorneys representing Morales and Long, cell phone records,

and the timing of the events leading up to Longs murder.

In February 2007, a warrant was issued for Morales and Long for a series of construction

equipment thefts. There were two previous cases involving Morales as well. All three district court

cases were transferred to Baltimore City Circuit Court on August 24, 2007. Morales had a number

of other legal problems in this same time frame . On October 10, 2007, an attorney, who shared1

office space with Needleman, Morales attorney, entered his appearance for Long in the theft case.

Needleman will testify that Morales gave Needleman the money to pay for the representation of

Long and that Needleman provided the money to the lawyer. On February 19, 2008, the cases were

postponed for trial until April 17, 2008.

On March 10, 2008, at 11:45 a.m., the police homicide files reflect that Long called Cpl

Sunderland to discuss possibly cooperating against Morales. Long articulated to the detectives that

he did not want his attorney, to be present because he did not trust him based on that attorneys close

relationship with Needleman. The States Attorneys Office (SAO) did not believe it could meet

The Government will seek to admit Morales arrest history at the trial through the state1

prosecutor. It is admissible under Federal Rule of Evidence 404(b) as further evidence of

Morales motive to kill Long. Though Longs cooperation was in a series of district court theft

cases, the fact of the matter is that Morales had accumulated a criminal history that made it more

likely he would be imprisoned for a period of time if convicted.

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with Long without his attorney and therefore advised the attorney and invited him to the proffer

themselves.

On March 11, 2008, in a meeting that is documented by a memorandum in the police

homicide file and a videotaped interview, Long met with the police and told them that he stole the

scaffolding at Jose Morales' request. Present at the meeting were Long, his lawyer, an assistant

states attorney, and the detectives. Long provided information regarding the thefts and other

information against Morales to include an arson. Long also stated that he only told his best friend

(whom he was then living with) that he was cooperating and that he trusted him. Long was instructed

not to tell anyone else. Long told the state prosecutor that "if Jose Morales knew that he was

talking to us [the State's Attorney's Office] he would kill him." As a result, the prosecutor took steps

to determine if Long were eligible for witness protection services.

In addition to Longs description of the crimes he and Morales committed together, the

Government seeks to admit other statements Long made on March 11, 2008. For example, Long

stated to detectives when he called them directly to offer his cooperation that he did not want his

attorney present at the proffer. The evidence will be that his attorney was paid for by Morales. Long

said that he did not trust his attorney not to tell Morales' attorney about his cooperation and his

statements about the crimes he engaged in for and at the behest of Morales.

Long also provided statements to detectives about why he was coming forward. On this

point, the following is an excerpt from his recorded interview: (Robert Long's statements follow his

initials "RL" and statements by the Detective follow the initial "D".)

RL: Just pissed off and I just want to get this shit over with.

D: Who are you pissed off at?

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RL: Jose...keep threatening somebody know what I'm saying

D: How is he threatening you?

RL: Calling me up on the phone telling me he's gonna beat me with a baseball bat and whoop my

ass.

D: When was the last time you spoke with him?

RL: Three days ago he called me up from...sounded like he was in a night club said I can't wait

to catch you...know what I mean. Can't wait to beat you with a baseball bat and whoop your ass, so

I'm gonna give him something to whoop my ass for.

D: Had you told him before that you were going to come forward and talk to the police?

RL: No I ain't tell him nothing.

D: Why are you getting these calls?

Longs Attorney: Why don't we just talk about the crimes...I mean does it really matter?

Long also admitted he used crack, which motivated him to do the thefts for Morales. This

admission by Long is also relevant to the Government's case and the Government will seek to admit

it at trial because Long was lured by his killers out of his house to do drugs the night of his murder.

The core of the interview describes the scope and nature of the crimes he committed with

Morales. It is important to show how entrenched Long and Morales were with one another as it

provides additional motive evidence of why Morales would want to have him murdered. To this

end, for example, Long stated he knew Jose Morales "for about ten years, eleven years. Ever since

I've been working with him" and that the current state of their relationship was:

It was good then, it ain't worth a shit now. Actually the last few years its been going

down hill with me being strung out I was stealing from him you know what I mean.

He would beat me for money out of my checks so I was taking from him and selling

his shit.

Long also provided information about an assault charge involving Morales and another witness,

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Warren Lumpkin a/k/a "Pie" (now deceased). This information is relevant to Longs mindset and

Morales modus operandi. According to Long:

RL: [Does] Jose go to Pies house? Oh I have no idea.

State's Attorney

(SA): Break into his car all that kind of stuff?

RL: I know nothing about that.

SA: What about chasing up Patapsco Ave?

RL: I was in jail when I heard about that...tried to run him off of the road?

D: Yeah. How did you hear about that?

RL: When Jose got me out that day he told me the next day..

D: What did he tell you?

RL: He said he was trying to run Pie off the road said the little bitch was scared and Pie was

yelling out the window "they made me do it they made me do it." That's what he was telling

me. That was what Jose told me you know what Im saying.

Long also spoke about Morales' own motivation to have Long commit crimes for him - a fact

relevant here where Morales hired others to kill Long:

D: Why do you think Jose asked you of all people to help do these things?

RL: Because he knew I was strung out and I would do anything to make a couple dollars to get

high you know what im saying.

D: Why didn't Jose do it himself?

RL: Because he wouldn't get the charge...find a guinea pig to do it for him and they are the one

that suffers not him from what I hear he has done it all his life.

Based on Long's statements, detectives obtained a search and seizure warrant for Morales'

home, 1432 Grimm Road, Severn, Maryland. The police executed the warrant on Wednesday,

March 18, 2008. The police found the scaffolding and other evidence related to the thefts. This date

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benefitting from his own wrongdoing. See United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir.

1982). Rule 804(b)(6) was codified in 1997 and, according to the legislative history, recognizes the

need for a prophylactic rule to deal with abhorrent behavior "which strikes at the heart of the system

of justice itself." Id. The Supreme Court confirmed the continuing vitality of the

forfeiture-by-wrongdoing doctrine in Crawford v. Washington, 541 U.S. 36, 62 (2004).

The governing precedent on Rule 804(b)(6) in this District is United States v. Gray, 405 F.3d

227 (4th Cir. 2005). See also United States v. Lentz, 524 F.3d 501, 527 (4th Cir. 2008) (Court

properly admitted victims statements in the trial for the kidnaping and murder of the defendants

wife, who was expected to testify against him in a custody hearing). In Gray, the Fourth Circuit

clarified the scope of the "forfeiture-by-wrongdoing" exception, holding that "Rule 804(b)(6) applies

whenevera defendant's wrongdoing was intended to, and did, render the declarant unavailable as a

witness against the defendant, without regard to the nature of the charges at the trial in which the

declarant statements are offered." Gray, 405 F.3d at 241 (emphasis in original). Thus, once a court

has determined that a defendant has intentionally procured the unavailability of a declarant as a

witness to prevent him from testifying, the declarant's statements are admissible not only in the

original trial for which the statements were elicited, but also in any subsequent proceedings in which

the declarant's statements are relevant. Id. This holding effectuates the underlying rationale of the

forfeiture-by-wrongdoing exception and prevents a defendant from benefitting from his misconduct.

Id. at 241-42.

In Gray, the defendant, Josephine Gray, was on trial for mail and wire fraud relating to her

receipt of insurance proceeds following her husband, Robert Gray's, death. Id. at 230. Prior to his

death, Robert Gray brought criminal charges against the defendant for assault and was expected to

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testify in the trial. Id. at 231. The Fourth Circuit affirmed the district court's admission of Robert

Gray's statements, even though the defendant intended to prevent Robert Gray from testifying in a

trial different than her pending federal fraud case. Id. The Fourth Circuit found that, to assess

whether the statements are admissible, the district court need only find, by a preponderance of the

evidence, that (1) the defendant engaged in some wrongdoing (2) that was intended to procure the

decedents unavailability as a witness and (3) that did, in fact, procure his unavailability as a witness.

Id. at 243.

Other circuits have similarly interpreted Rule 804(b)(6) broadly to effectuate its purpose of

preventing a defendant from benefitting from his wrongdoing. E.g., United States v. Stewart, 485

F.3d 666, 672 (2d Cir. 2007) (admitting the statements of a murdered witness even though the

defendant intended to prevent the witness from testifying at a different trial); United States v.

Johnson, 495 F.3d 951, 972 (8th Cir. 2007) (holding defendant forfeited her confrontation rights

even though she worked to procure the unavailability of a declarant as a witness against a different

defendant); United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999) (holding the statements of a

murder victim were admissible at the murder trial even though the defendant intended to procure the

victim's unavailability as a witness in a separate trial).

Nor does the government have to prove that the defendant personally committed the crime

procuring a declarants unavailability. In United States v. Rivera, 412 F.3d 562, 567 (4th Cir. 2005),

the Fourth Circuit held that the defendant "need only acquiesce in wrongdoing to trigger the

application of Rule 804(b)(6)." Id. Similarly, in United States v. Dinkins, 691 F.3d 358, 384 (4th

Cir. 2012), the Fourth Circuit confirmed that the forfeiture-by-wrongdoing exception allows

statements to be admitted when a "defendant's co-conspirators engaged in the wrongdoing that

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ultimately rendered the declarant unavailable as a witness." Thus, when a defendant acquiesces in

wrongfully causing the unavailability of a declarant as a witness, such as by hiring a conspirator to

murder the declarant, the defendant forfeits his confrontation rights. Id. at 384-385.

The Indictment charges that the defendant solicited the murder of Robert Long. The

Government can show by a preponderance of the evidence that Morales engaged in wrongdoing to

procure the unavailability of Robert Long by hiring the men that killed Long. Therefore, Longs out-

of-court statements are admissible. The Government proffers that it will produce evidence of

Morales confessions to the murder to at least two different witnesses. The evidence will be that

Morales had Long killed because Long decided thirteen days before his murder to cooperate against.

Morales. This information alone satisfies the Governments need to establish, as a gateway for

admissibility of decedents statements, that the defendant is culpable for his ultimate unavailability.

See United States v. Savage, No. 07-550-03, 2013 WL 372947, at *5 (E.D.Pa. Jan. 31, 2013)

(finding that a pretrial hearing is not required to determine whether the forfeiture by wrongdoing

exception applies); United States v. Jimenez-Bencevi, No. 12-221, 2013 WL 1429445, at *2

(D.Puerto Rico Apr. 5, 2013) (We are not required to hold an evidentiary hearing before deciding

to permit the admission of these statements at trial.); United States v. Baskerville, 448 F.App'x. 243,

250 n. 5 (3d Cir. 2011) (District Court's decision to forgo a mini-trial on admissibility of murdered

witness' statements was reasonable).

The Fourth Circuit accepted this evidentiary approach in Gray, 405 F.3d 227 (4th Cir. 2005),

and in United States v. Johnson, 219 F.3d 349, 356 (4th Cir. 2000), cert. denied, 531 U.S. 1024

(2000), where the district court properly admitted hearsay statements that the declarant had allegedly

made regarding defendant's involvement in a murder, on the governments theory that the defendant

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had forfeited his hearsay objections by murdering the declarant. On appeal, the defendant

complained that the an evidentiary hearing was required. Johnson, 219 F.3d at 356. The Fourth

Circuit disagreed stating that the district court did not err "when it accepted the government's

position that [defendant] did kill [witness], presumably contingent on the government proving [so

in trial]. Id. (citing Emery, 186 F.3d at 926 (holding a trial court need not hold a hearing under

Rule 804(b)(6), rather it can admit the evidence at trial "contingent upon proof of the underlying

murder by a preponderance of the evidence")).

In this case, witnesses will testify that the defendant confessed to his role in the murder to

them. The testimony of the witnesses is highly corroborated by circumstantial evidence to include

phone records and motive evidence. Moreover, the decedent himself articulated fear to a state

prosecutor that he would be killed if the defendant found out the witness provided information to

law enforcement about the defendants criminal conduct. The court can also accord weight to the

fact that the defendant benefitted from the death of the witness because it did, in fact, prevent the

witness' testimony against him. United States v. Mastrangelo, 662 F.2d 946, 951-52 (2d Cir. 1981).

In sum, the grand jury in this case has already found probable cause to believe that Morales

murdered Robert Long. The Federal Rules of Evidence require a showing that Morales engaged in

wrongdoing to procure the unavailability by a preponderance of the evidence. Corroborated

evidence of Morales confessions to the murders is manifestly sufficient for finding that the

defendant engaged or acquiesced in wrongdoing to procure unavailability of Robert Long. When

viewed in light of the proffers made by the Government above, clearly the preliminary threshold for

admissibility under Rule 804(b)(6) has been met and Longs out-of-court statements are admissible

at trial.

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IV. ALTERNATIVE THEORY OF ADMISSIBILITY : THE RESIDUAL4

EXCEPTION - RULE 807

In any event, the out-of-court statements are alternatively admissible under Rule 807 because

they contain a strong indicia of trustworthiness in that all turn out to be self-fulfilling. In other

words, the reliability of the statements is corroborated by the circumstances of the murders

themselves. Rule 807 provides:

(a) In General. Under the following circumstances, a hearsay statement is not excluded by

the rule against hearsay even if the statement is not specifically covered by a hearsay

exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidencethat the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent

gives an adverse party reasonable notice of the intent to offer the statement and its

particulars, including the declarants name and address, so that the party has a fair

opportunity to meet it.

Fed. R. Evid. 807. As stated above, Longs statements are probative and go to material facts in the

case such as motive. There are circumstantial guarantees of trustworthiness because the statements

were provided to law enforcement and are self-corroborating. Refusing to admit Mr. Longs out-of-

court statements to witnesses subject to cross-examination simply because he is not available to

testify at his own murder trial would be nonsensical. Accordingly, the court should allow the various

testimony about what Long said to various witnesses at trial.

V. BALANCING TEST UNDER RULE 403

There are a myriad of other exceptions that are also applicable to the various4

statements. For example, Longs statements of fear expressed to the prosecutor reflect his then-

existing state of mind. Rule 803(3). His statements about the crimes he committed were also

statements against his interest. Rule 804(3).

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Finally, the Court should find that the probative value of Longs statements substantially

outweighs any prejudice to the Defendant. It is clearly important to the Governments case to

establish Morales motive. The importance of Longs cooperation to the police is readily apparent

from his videotaped statement and subsequent search warrant. Long knew Morales for years, and

the fact that he expressed fear to the prosecutor is similarly probative. Most importantly, Longs

concern that Morales had learned about his cooperation four days before his murder carries powerful

circumstantial weight to the events that ensued.

It is important to note here that the courts have permitted similar statements by victims in a

variety of different contexts and made by a variety of different testifying sources. For example,

the decedents out-of-court statement in United States v. Smith, 792 F.2d 441, 443 (4th Cir. 1986),

was made to the police. Three separate witnesses testified about the decedents out-of-court

statements in Johnson, 219 F.3d at 355. Here, both lay witnesses and law enforcement will testify

about the decedents out-of-court statements. The statements will be amply corroborated by other

events. Limiting instructions regarding Longs statements about Morales other criminal conduct

can be provided to the jury to alleviate any risk of prejudice. See United States v. Aguiar, 975 F.2d

45, 46 (2d Cir. 1992) (when witness refused to testify because of oral and written threats made by

the defendant, the court admitted hearsay statements the witness made to other co-conspirators about

the defendant's involvement in drug dealing because the district court gave appropriate limiting

instructions concerning the hearsay statements and because the statements were amply corroborated

by other events).

Lastly, in Emery, 186 F.3d at 927, the Court admitted statements of a homicide victim

(presumably to federal authorities) concerning the defendant's drug trafficking activities and the

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victim's fear that defendant would retaliate against her for cooperating with law enforcement

authorities. The Court found that the statements possessed significant probative value in the

prosecution for killing a federal informant, especially with respect to defendant's motive, and that

probative value was not substantially outweighed by threat of unfair prejudice or confusion. Id.

For the foregoing reasons, Longs statements to the police, the prosecutor, and his friend

regarding his cooperation and his fears are properly admitted against Morales, who forfeited the right

to challenge admission by procuring Longs unavailability as a witness.

Respectfully submitted,

Rod J. RosensteinUnited States Attorney

By:_________/s/__________________

Sandra Wilkinson

Martin S. Clarke

Assistant United States Attorneys

36 South Charles Street

Fourth Floor

Baltimore, Maryland 21201

(410) 209-4800

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 19 day of July, 2013, a copy of the foregoing pleadingth

was electronically filed and emailed to counsel of record for Morales via CM/ECF:

Jonathan Zucker, Esq. Gary E. Proctor, Esq.

1350 Connecticut Ave., NW 8 East Mulberry Street

Suite 202 Baltimore, MD 21202

Washington, DC 20036 [email protected]

[email protected]

/s/

_______________________________

Sandra Wilkinson

Assistant United States Attorney

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mailto:[email protected]:[email protected]

Morales Robert Long statements

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