## Facts

- A journalist, Manuel de Dios Unanue, was shot in the head and killed on March 11, 1992, while seated in a Queens bar.
- The prosecution theory was that the killing was a contract murder ordered by the Cali Cartel in response to the journalist’s reporting, with the order transmitted through intermediaries to New York-based participants.
- Wilson Alejandro Mejia-Velez, age 17 at the time, was tried as an adult and was convicted by a jury of murder for hire under 18 U.S.C. § 1958.
- The court issued a post-trial memorandum explaining evidentiary rulings made during trial and on the government’s pretrial motion in limine.
- The government introduced accomplice testimony that conspirators selected Mejia-Velez as the shooter because he claimed he had committed similar murders in Colombia.
- The government also introduced recordings of 911 calls placed by eyewitnesses within minutes of the shooting; the callers sounded panicked and reported what they had just seen from the scene.
- The defense sought to introduce out-of-court statements by a co-conspirator made after the homicide asserting that another person was the “real killer,” but the defense did not call the declarant to testify despite his availability.

## Issues

1. Whether accomplice testimony about the defendant’s claimed prior murders in Colombia was admissible under Federal Rule of Evidence 404(b) for a non-propensity purpose and, if so, whether it should be excluded under Rule 403.
2. Whether eyewitness 911 recordings made within minutes of the shooting were admissible over hearsay objections under Rule 803, including the excited utterance and present sense impression exceptions.
3. Whether a co-conspirator’s post-crime, exculpatory statements identifying someone else as the killer were admissible under Rule 804(b)(3) or another hearsay exception when the declarant was available to testify.

## Decision

- The court upheld admission of the accomplice testimony regarding the defendant’s claimed prior murders in Colombia.
- The court upheld admission of the eyewitness 911 recordings as hearsay within Rule 803 exceptions.
- The court excluded the co-conspirator’s post-crime exculpatory hearsay statements offered by the defense.

## Legal Principles

- Rule 404(b) permits evidence of other acts for non-propensity purposes (including motive, intent, and plan) when relevant to explain the conspirators’ selection of the defendant and the conspiracy’s operation.
- Under Rule 403, highly prejudicial evidence may be admitted when its probative value is substantial and the risk of unfair prejudice does not substantially outweigh that value; limiting instructions may reduce unfair prejudice.
- 911 calls made contemporaneously or within minutes of a startling event, from the scene, and while the caller is under stress may qualify as excited utterances under Rule 803(2) and may also fit the present sense impression rationale under Rule 803(1).
- A statement against penal interest under Rule 804(b)(3) must be clearly self-inculpatory and supported by corroborating circumstances indicating trustworthiness; blame-shifting or minimizing statements generally fail this requirement.
- When the declarant is available to testify, attempts to admit exculpatory hearsay in lieu of live testimony are disfavored, particularly where reliability is not otherwise established.

## Conclusion

The court’s memorandum affirmed trial rulings admitting (1) accomplice testimony about the defendant’s claimed prior similar killings to explain the conspiracy’s choice of triggerman and (2) eyewitness 911 calls as excited utterances, while excluding a co-conspirator’s later, exculpatory hearsay statements as unreliable and not within the statement-against-interest exception.


United States v. Mejia-Velez, 855 F. Supp. 607 (E.D.N.Y. 1994)