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USA v. CORNELL et al, Docket No. 1:11-cr-00402 (M.D.N.C. Nov 29, 2011), Court Docket Eric Fink Friday, July 27, 2012 - 8:37 PM

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 1:11-cr-402-1 UNITED STATES OF AMERICA v. JORGE PETER CORNELL ) ) ) ) )

MOTION FOR GOVERNMENT TO SUBMIT PROFFER ON ADMISSIBILITY OF CO-CONSPIRATORS STATEMENTS SIX WEEKS PRIOR TO TRIAL

NOW COME DEFENDANTS JORGE CORNELL, RUSSELL KILFOIL, WESLEY WILLIAMS, SAMUEL VELASQUEZ, AND RANDOLPH KILFOIL1, by and through their attorneys, and respectfully moves this Court to require to submit pre-trial proffers of statements of alleged co-conspirators in order to permit the Court to determine whether or not statements or any alleged co-conspirators are admissible against any defendant or in the alternative bar the Government from presenting any such statements for which it did not make a pre-trial proffer. In support of this motion defendants state the following: 1. It appears, upon information and belief, that the Government intends to introduce

statements of alleged co-conspirators against the defendants at trial, pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence. 2. Such co-conspirators statements are inadmissible hearsay under Rules 801(c) and

802 of the Federal Rules of Evidence unless the government can demonstrate that: a. b. c. A conspiracy existed; and the party against whom it was offered was a member; and the statement was made in furtherance of the conspiracy.

Counsel for each of the listed Defendants have advised undersigned counsel for Jorge Cornell that their clients join in this motion.

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Federal Rule of Evidence 801(d)(2)(E); Bourjaily v. United States, 483 U.S. 171 (1987). 3. Although the Court of Appeals for the Fourth Circuit does not require a formal

pre-trial hearing to determine the admissibility of statements, United States v. Hines, 717 F. 2d 1481, 1488 (4th Cir. 1983), because of the complexity of this case a more formal procedure would facilitate the ends of justice and help provide a more orderly trial of the matter. For example, in addition to the 14 co-defendants alleged by the Government to be co-conspirators, there are at least a dozen or more individuals the Governments discovery indicates were affiliated with the Latin Kings at one time or another and who have been interviewed by the government. There are also numerous confidential informants who the government has not identified but who appear to have been associated with the Latin Kings at one time or another and who have been interviewed by the Government. Many of these interviews contain alleged statements by co-defendants or other members of the Latin Kings. There are also hundreds of audio recordings containing statements allegedly made by the charged defendants or by others who the Government may contend were co-conspirators. 4. The issues affecting admissibility are further complicated by the fact that the

Government discovery discloses that there are numerous persons who were associated with the Latin Kings who left the Latin Kings or were expelled from the Latin Kings at various points in time. This raises an additional issue over whether these persons later statements could be in furtherance of the alleged conspiracy.2 5.
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The issues of admissibility are further complicated because the Government

There are many examples of this disclosed in the Government discovery. One example is illustrated with respect to Defendant Yates in the Attachment filed to the Motion to Dismiss being filed co 2

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apparently contends that various statements were made by the Defendant Cornell and other Latin Kings that are clearly statements falling within the protection of First Amendment freedom of speech and association but which the Government contends were in furtherance of the alleged conspiracy. For example, 12 of the indictment alleges that public statements made by Jorge Cornell and other Latin Kings to promote peace between street gangs and public criticism of the Greensboro police were statements made in furtherance of the racketeering enterprise.3 6. If the Government does not disclose before trial which statements of the indicted

and unindicted alleged co-conspirators it intends to introduce at the trial, trial proceeding will become significantly more protracted as the Court deals with these evidentiary issues. Defendant ask this Court to require the Government to submit a Proffer of any statements to be offered under Federal Rule of Evidence 801 to the Defendants and this court six weeks before the start of trial so that the Court can address the admissibility of statements before the start of the trial. WHEREFORE, DEFENDANTS JORGE CORNELL, RUSSELL KILFOIL, WESLEY WILLIAMS, SAMUEL VELASQUEZ, AND RANDOLPH KILFOIL respectfully request that this Court grant the motion. Respectfully submitted this the 27th day of July, 2012.

For example, the Government discovery includes various public statements that were reported in the press and which appear on in the Internet. For example see the Youtube video of Defendant Cornell announcing the filing of a Title VI complaint against the Greensboro Police Department, http://www.youtube.com/watch?v=yikc1gl_szo. 3

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Law Office of Michael W. Patrick By: /s/ Michael W. Patrick Michael W. Patrick NC Bar #7956 312 West Franklin Street P.O. Box 16848 Chapel Hill, NC 27516 (919) 960-5848 (telephone) (919) 869-1348 (facsimile) Email: mpatrick@ncproductslaw.com Attorney for Defendant Jorge Cornell

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CERTIFICATE OF SERVICE I hereby certify that on the 27th day of July, 2012 I electronically filed the foregoing with the clerk of the court using the CM/ECF system which will provide a copy of the motion to counsel of record.

/s/ Michael W. Patrick Attorney for Defendant Jorge Cornell

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