Thursday, July 29th, 2010

Cops Out

United States v. Caracappa, No. 09-1177-cr (2d Cir. July 23, 2010) (Kearse, Sack, Wesley, CJJ)

When last we heard from Stephen Caracappa and Louis Eppolito, two corrupt NYPD detectives who also did hits for the mob, the circuit had vacated a district court order tossing their RICO conspiracy conviction and granting them a new trial on the remaining counts. See Enterprise Rent-A-Cop, posted September 27, 2008. On remand, the district court sentenced Caracappa to life plus 80 and Eppolito to life plus 100. This opinion disposes of the defendants’ appeal. The circuit affirmed.

The opinion treads little new ground, with the exception of one interesting evidentiary issue. An important cooperating witness was Burton Kaplan, who in his day had been a trusted member of the Lucchese Family and the main intermediary between Caracappa/Eppolito and Anthony Cassso, the Lucchese underboss. During his trial testimony Kaplan explained that he would relay law enforcement information from Caracappa/Eppolito to Casso and instructions and money from Casso back to them. After the defense vigorously cross-examined him, the judge permitted the government to call Kaplan’s former attorney, who confirmed that, in 1994, Kaplan admitted to him that he was the conduit between Caracappa/Eppolito and Casso.

The circuit upheld this as a prior consistent statement under Fed. R. Evid. 801(d)(1)(B). First, it noted that such a statement need not be offered through the declarant; anyone with first-hand knowledge can report a prior consistent statement. The defendants’ main contention was that they had argued that Kaplan’s motive to fabricate predated the statement, which would take it out of the rule. The circuit disagreed, finding that their real argument was that Kaplan – who cooperated only after receiving a long prison sentence of his own – only developed the motive to fabricate so that he could get out of prison. Since he made the statement to his attorney two years before he was arrested, he did so before he had a motive to fabricate.

The circuit also rejected the defendants’ argument that they were deprived of an opportunity to cross-examine Kaplan about the statement. The district court told them that they could re-call Kaplan if they wished, and, in any event, they knew about the statement when Kaplan himself testified because it was mentioned in his 3500 material.

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