Petition for Writ of Certiorari — Joshua Rodriguez, Petitioner v. United States

Supreme Court briefAug 26, 2025

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No. ______________

In the Supreme Court of the United States

__________

JOSHUA RODRIGUEZ, PETITIONER

UNITED STATES OF AMERICA

__________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

__________

PETITION FOR A WRIT OF CERTIORARI

__________

JAMESA J. DRAKE

Counsel of Record

DRAKE LAW LLC

P.O. Box 56

Auburn, ME 04212

(207) 330-5105

jdrake@drakelawllc.com

Question Presented

Have the federal appellate courts departed too far from the purpose

and intent of the present-sense impression exception to the hearsay rule,

such that the rule no longer provides a meaningful bulwark against the

admission of unreliable evidence?

Related Proceedings

United States v. Joshua Rodriguez, 1:22-cr-316-JSR-1 (S.D.N.Y.)

United States v. Joshua Rodriguez, 23-7280-cr, 2025 U.S. App. LEXIS

12455, 2025 WL 1466859 (2d Cir. May 22, 2025)

Table of Contents

Question Presented ................................................................................. i

Related Proceedings ............................................................................. ii

Petition for a Writ of Certiorari ......................................................... 1

Opinion Below ........................................................................................ 1

Judgment ................................................................................................. 1

Relevant Law .......................................................................................... 1

Statement of the Case ........................................................................... 2

Historical facts .............................................................................. 4

II.

Procedural history ........................................................................ 4

III. The District Court’s ruling ........................................................... 4

IV. The Second Circuit’s ruling .......................................................... 6

Reasons for Granting the Writ ........................................................... 6

II.

The legal framework..................................................................... 7

Timing ............................................................................... 12

A statement describing an event ..................................... 13

The Second Circuit’s decision illustrates perfectly how the

application of Rule 803(1) is inconsonant with the rule’s original

intent. .......................................................................................... 16

Conclusion ............................................................................................. 19

iii

Table of Authorities

Cases

Navarette v. California, 572 U.S. 393 (2014) ...................................... 8, 12

Ohio v. Roberts, 448 U.S. 56 (1980) .......................................................... 7

United States v. Beck, 122 F.3d 676 (8th Cir. 1997) .............................. 14

United States v. Blakey, 607 F.2d 779 (7th Cir. 1979) .................... 10, 13

United States v. Boyce, 742 F.3d 792 (7th Cir. 2014) ................ 10, 11, 12

United States v. Danford, 435 F.3d 682 (7th Cir. 2005) ........................ 14

United States v. Gonzalez, 764 F.3d 159 (2d Cir. 2014) ........................ 18

United States v. Hawkins, 59 F.3d 723 (8th Cir. 1995) ......................... 13

United States v. Ibanez, 328 Fed. App’x 673 (2d Cir. 2009) .................. 14

United States v. Jones, 299 F.3d 103, 107 (2d Cir. 2002) ...................... 14

United States v. Joshua Rodriguez, 1:22-cr-316-JSR-1 (S.D.N.Y.) ......... ii

United States v. Joshua Rodriguez, 23-7280-cr, 2025 U.S. App. LEXIS

12455, 2025 WL 1466859 (2d Cir. May 22, 2025) ............................. ii, 1

United States v. Meja-Velez, 855 F.Supp. 607 (E.D.N.Y. 1994) ............ 13

United States v. Menendez, 315 Fed. App’x 103 (11th Cir. 2008) ......... 14

United States v. Obayagbona, 627 F.Supp. 329 (E.D.N.Y. 1985) .......... 13

United States v. Peacock, 654 F.2d 339 (5th Cir. 1991) ......................... 15

United States v. Vazquez, 818 Fed. App’x 93 (2d Cir. 2020) ................. 13

Statutes

18 U.S.C. § 924(j)(1) ................................................................................... 2

21 U.S.C. § 812 ........................................................................................... 2

21 U.S.C. § 841(a)(1) .................................................................................. 2

21 U.S.C. § 841(b)(1)(D) ............................................................................. 2

21 U.S.C. § 846 ........................................................................................... 2

28 U.S.C. § 1254(1) ..................................................................................... 1

Other Authorities

Chris Blair, Let’s Say Good-bye to Res Gestae,

33 Tulsa L.J. 349 (1997) ................................................................... 9, 10

David Alan Skansky, Hearsay’s Last Hurrah, 2009 Sup. Ct. Rev. 1

(2009) ....................................................................................................... 8

Douglas D. McFarland, Present Sense Impressions Cannot Live in the

Past, 28 Fla. St. U.L. Rev. 907 (2001) ....................................... 8, 10, 13

Rules

Fed. R. Evid. 802 ........................................................................................ 7

Fed. R. Evid. 803(1) ........................................................................... passim

Petition for a Writ of Certiorari

Mr. Joshua Rodriguez petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Second Circuit.

Opinion Below

The summary order (Pet. App. 1a) is unpublished, but can be found

at United States v. Rodriguez, 2025 U.S. App. LEXIS 12455, 2025 WL

1466859 (2d Cir. May 22, 2025).

Judgment

The judgment of the Court of Appeals was entered on May 22, 2025.

A timely filed petition for panel rehearing, per Second Circuit Local Rule

40.1(b), was filed on June 23, 205, and denied on July 2, 2025. (Dkt. 66).

This Court has jurisdiction. 28 U.S.C. § 1254(1).

Relevant Law

Rule 803. Exceptions to the Rule Against Hearsay.

The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness:

(1)

Present Sense Impression.

A statement describing or

explaining an event or condition, made while or immediately after the

declarant perceived it.

Statement of the Case

A jury found Rodriguez guilty of, among other charges, murder

through the use of a firearm during a drug trafficking crime in violation

of 18 U.S.C. § 924(j)(1).1 The district court principally sentenced him to

456 months’ prison, followed by five years of supervised release subject

to mandatory, standard, and special conditions.

Historical facts

According to the government, Rodriguez was part of a five-member

gang who sold marijuana outside a housing project in the Bronx called

the Butler Houses. (Tr. 198-200). Sometime in 2017, the decedent,

Jaquan Millien, moved into one of the Butler House apartments and

began selling marijuana in the sixth-floor hallway. (Tr. 103-4, 171-72,

189-91, 197). Millien’s new base of operations was directly next door to

Rodriguez’s girlfriend’s apartment. (Tr. 120, 172). Rodriguez knew he

was losing out on marijuana sales to Millien and it angered him. (Tr.

203-4).

Rodriguez was also convicted of conspiracy to distribute or possess

with intent to distribute marijuana in violation of 21 U.S.C. § 846; and

possessing with intent to distribute marijuana in violation of 21 U.S.C.

§§ 812, 841(a)(1), 841(b)(1)(D).

On three or four occasions, Rodriguez confronted Millien. (Tr. 12123). According to Millien’s girlfriend, Yanellie Ramirez, Rodriguez told

Millien that “he didn’t want [Millien] to have customers come upstairs to

the sixth floor to buy marijuana.” (Tr. 123). The next few conversations

between Rodriguez and Millien “all went the same.” (Tr. 123-24). Each

time, Rodriguez “would just say that he didn’t want [Millien] to have

customers come up to the sixth floor.” (Tr. 124-25).

In February or March of 2018, Rodriguez confronted Millien again.

(Tr. 138). According to Millien’s girlfriend, this time, Rodriguez told

Millien that “he shouldn’t be selling weed out of his apartment and that

he should be concerned with what he is doing from his home because he

sells to people from his door.” (Tr. 142). Fisticuffs ensued: Rodriguez

held a blade to Millien’s face, and Millien punched Rodriguez and broke

his jaw. (Tr. 143, 144, 183-84). Millien’s girlfriend witnessed the fight

and broke it up. (Tr. 141-42). A few months after the fight, one witness

saw Rodriguez and Millien greet each other, and it looked like the dispute

was over. (Tr. 351).

In the afternoon on October 23, 2018, Millien was shot in the

stairway of his apartment. (Tr. 49, 441-463). Edwin Mena, a witness

who was “sitting in immigration jail” and hoping to avoid removal,

cooperated with the government and testified that he saw Rodriguez

running with a gun in his hand, saying, “I just shot somebody, I just shot

somebody.”

(Tr. 285, 355).

Mena escorted Rodriguez out of the

apartment building. (Tr. 286-27).

One of Rodriguez’s long-term customers testified that he saw

Rodriguez only one other time after October 23, 2018.

(Tr. 204).

Rodriguez was arrested on June 9, 2022 in Newark, New Jersey. (Tr.

531). Before October 21, 2018, Rodriguez primarily used his benefits card

in the Bronx and Manhattan. (Tr. 467, 472). After October 21, 2018,

Rodriguez primarily used his benefits card in New Jersey. (Tr. 472). For

about eight months after October 21, 2018, Rodriguez did not use his

benefits card at all. (Tr. 476). There is no record of Rodriguez using his

benefits card in New Jersey prior to October 21, 2018. (Tr. 472, 477).

II.

Procedural history

Before the trial began, the government moved in limine to allow

testimony by Millien’s girlfriend, Ramirez, about what Millien told her

about the conversations he had in the hallway with Rodriguez. (Dkt. 34).

The government proffered that Millien would go out in the hallway to

speak with Rodriguez and then “[a] minute or two later she would say he

comes back into the apartment. And immediately upon coming back into

the apartment, she says what happened. And, [Millien] says, [Rodriguez]

just told me he doesn’t want me selling marijuana in the hallway.”

(5/31/23 Tr. 3-4). The government added that Ramirez would not be

testifying about precisely what Millien told her; rather, Ramirez would

give “[b]asically a one sentence description of, he doesn’t want me selling

marijuana on the floor.” (Id. at 9). The defense objected and argued that

“[p]resent sense impression generally is for some sort of event.

I’m

watching something and I’m seeing it happen and I’m commenting on it.

It’s not generally thought of as, I had a conversation. I’m coming to relay

the conversation.” (Id. at 5).

III.

The District Court’s ruling

After reading a portion of the advisory notes to Rule 803(1) of the

Federal Rules of Evidence, the trial court ruled:

I’m inclined to admit them now that I’ve reviewed the case law and

the reasons for it. I think it would be a different story if there’s a

long period of time between when the event underlying [the]

statements were made and when he reports them to the girlfriend,

but [it] sounds like it’s immediate to close to immediate which is the

rationale for the rule.

(Pet. App. 21a-22a).

IV.

The Second Circuit’s ruling

The Second Circuit affirmed the district court’s ruling and

reiterated that Ramirez’s testimony was admissible under the presentsense-impression exception to the hearsay rule. Fed. R. Evid. 803(1). The

court

reasoned

that

although

each

hallway

encounter

lasted

approximately five minutes, Millien reported the events to Millien “as

soon as” he reentered the apartment, and such a slight lapse is allowable.

(Pet. App. 5a). Also, “[n]either party points to any binding precedent

involving a present sense impression summarizing or paraphrasing a

statement,” but “even if Ramirez’s summary was not permissible, any

error here was harmless” because the objected-to statements were

corroborated by other admitted evidence, namely testimony about the

physical altercation between the men, and evidence that Rodriguez was

angered by Millien’s drug-dealing in the building, which Rodriguez did

not challenge. (Pet App. 6a-7a).

Reasons for Granting the Writ

This Court should accept review to clarify the meaning and scope of

the hearsay exception for present sense impressions.

Fed. R. Evid.

803(1).

Guidance is needed because the federal appellate courts

frequently apply the rule in a way that is unmoored from its original

purpose. The result is the admission of evidence that should properly be

excluded.

The legal framework

The present sense impression exception to the hearsay rule is

beleaguered with problems. The solution is for courts to apply the rule

as it was intended or not at all.

Hearsay evidence is generally inadmissible because it is not subject

to in-court procedures designed to guarantee reliability. Fed. R. Evid.

802 (hearsay evidence is not generally admissible unless the Rules

provide otherwise); Ohio v. Roberts, 448 U.S. 56, 66 (1980) (observing that

“hearsay rules and the Confrontation Clause are generally designed to

protect similar values, and stem from the same roots.”) (cleaned up). The

various risks attributed to hearsay evidence include:

“a narration risk (that the declarant did not mean what he or

she seemed to say); a sincerity risk (the risk that the declarant

intentionally fabricated); a memory risk (the risk that the

declarant misrecalled what happened); and a perception risk

(the risk that the declarant misperceived things to begin

with).”

David Alan Skansky, Hearsay’s Last Hurrah, 2009 Sup. Ct. Rev. 1, 16

(2009).

However, hearsay statements that display indicia of reliability are

an exception. “Since by definition a present sense impression is uttered

spontaneously while the declarant is perceiving the subject of the

declaration, the guarantees of trustworthiness of the exception are

agreed to be two: no possible memory loss and little or no danger of

insincerity.” Douglas D. McFarland, Present Sense Impressions Cannot

Live in the Past, 28 Fla. St. U.L. Rev. 907, 907 (2001); see also Navarette

v. California, 572 U.S. 393, 400 (2014) (“In evidence law, we generally

credit the proposition that statements made about an event and made

soon after perceiving the event are especially trustworthy because

“substantial contemporaneity of event and statement negate the

likelihood of deliberate or conscious misrepresentation.”; see also id. at

408 (Scalia, J., dissenting) (“It is the immediacy that gives the statement

some credibility; the declarant has not had time to dissemble or

embellish.”).

While earlier codes and cases posited that the statement of a

witness describing an event while perceiving it should be admissible over

a hearsay objection, the present sense impression was not generally

recognized as an exception to the hearsay rule until the enactment of the

Federal Rules of Evidence in 1975. Id. at 907 (collecting authority); Fed.

R. Evid. 803(1); 88 Stat. 1926, 1939 (1975). The federal rule, unchanged

from 1975 to the present, sets forth the exception: “A statement

describing or explaining an event or condition made while the declarant

was perceiving the evident or condition, or immediately thereafter.” Fed.

R. Evid. 803(1).

The present-sense-impression exception has other evidentiary

analogues. Res gestae is a Latin phrase which means “things done” and

generally refers to words or actions that “occur so close in time and

substance” to each other that they are considered part of the same

happening, event or transaction. Chris Blair, Let’s Say Good-bye to Res

Gestae, 33 Tulsa L.J. 349, 349 (1997). The phrase initially developed as

an exception to the hearsay rule for statements “which were associated

with the happening of the principal litigated event, such as a murder, a

collision, or a trespass.” Id. at 350. Eventually, the term was understood

to treat the conduct and the accompanying words as if they were all part

of the same transaction or “things done,” and so, “if the conduct was

admissible, so were the words.” Id. at 350. The concept of res gestae

“evolved into the hearsay exceptions that we now recognize as present

sense impressions, excited utterances, and statements of then existing

mental, emotional, or physical condition.” Id. at 350.

But as one scholar has observed, with respect to the present-sense

exception to the hearsay rule, increasingly, “federal courts are generally

willing to ignore [a] strict contemporaneity requirement and approve the

admission of statements made far more than a few seconds after an

event.” McFarland, supra at 919. Thus, it may be more accurately said

that “[t]he federal courts have been admitting past sense impressions, or

what might be called stale sense impressions.” Id. at 919. This is so

because, of course, “[t]here is no per se rule indicating what time interval

is too long under Rule 803(1).” United States v. Blakey, 607 F.2d 779, 785

(7th Cir. 1979).

In his concurring opinion in United States v. Boyce, 742 F.3d 792

(7th Cir. 2014) (Posner, J., concurring), Judge Posner derided the present

sense impression exception. He wrote: “The rationale for the exception

for a ‘present sense impression’ is that if the event described and the

statement describing it are near to each other in time, this ‘negates the

likelihood of deliberate or conscious misrepresentation.’” Id. at 800. To

this he replied: “I don’t get it, especially when ‘immediacy’ is interpreted

to encompass periods as long as 23 minutes, 16 minutes, and 10 minutes.”

Id. at 800 (collecting cases; internal citations omitted). He continued:

“Even real immediacy is not a guarantor of truthfulness. … Most lies in

fact are spontaneous. … Suppose I run into an acquaintance on the street

and he has a new dog with him – a little yappy thing – and he asks me,

‘Isn’t he beautiful’? I answer yes, though I’m a cat person and consider

his dog hideous.” Id. at 800-801.

Judge Posner added: “[A]s with much of the folk psychology of

evidence, it is difficult to take this rationale that immediacy negates the

likelihood of fabrication entirely seriously, since people are entirely

capable of spontaneous lies in emotional circumstances” and “old and new

studies agree that less than one second is required to fabricate a lie.” Id.

at 801 (cleaned up; collecting authority).

“It is time the law awakened from its dogmatic slumber,” he

concluded. Id. at 801. “The ‘present sense impression’ exception never

had any grounding in psychology.

It entered American Law in the

nineteenth century, long before there was a field of cognitive psychology;

it has neither a theoretical nor an empirical basis; and it’s not even

common sense – it’s not even good folk psychology.” Id. at 801 (cleaned

up; collecting authority).

Timing

The federal appellate courts are willing to admit present sense

impressions made long after the triggering event, and thus, altogether

unmoored from the rationale that undergirds the res gestae exceptions.

Plainly, the drafters of the present sense impression rule intended

to require contemporaneity. The rule contemplates a statement “made

while or immediately after” the declarant perceived the triggering event

or condition. Fed. R. Evid. 803(1). The advisory committee notes indicate

that only “a slight time lapse is allowable.” Advisory committee notes

(1975). “The classic present sense impression is the recounting of an

event occurring before the declarant’s eyes, as the declarant is speaking

(“I am watching the Hindenburg explode!”).” Navarette, 572 U.S. at 40708 (cleaned up) (Scalia, J., dissenting).

Consistent with the rule’s

purpose, most commentators “have opined that the time lapse

requirement should be enforced with rigor” and that only a “slight lapse

before reflective thought intervenes” is allowable. McFarland, supra at

918-19 (collecting authority).

Despite this, “federal courts generally are willing to ignore the

strict contemporaneity requirement and approve the admission of

statements made far more than a few seconds after the event.” Id. at 919

(collecting cases); see e.g. Blakey, 607 F.2d at 785-86 (23 minutes); United

States v. Meja-Velez, 855 F.Supp. 607, 614 (E.D.N.Y. 1994) (16 minutes);

United States v. Obayagbona, 627 F.Supp. 329, 334, 339-40 (E.D.N.Y.

1985) (surveillance tape showed that fourteen and one-half minutes

elapsed between the drug deal and the agent’s describing the defendant

to other agents); United States v. Hawkins, 59 F.3d 723, 730 (8th Cir.

1995) (noting that seven minutes had elapsed from a neighbor’s report of

a disturbance to the time of the declarant’s statement on a 911 call; the

neighbor’s statement was admitted).

A statement describing an event

Statement admitted under the present sense impression are

intended to be precise recantations. See e.g. United States v. Vazquez,

818 Fed. App’x 93, 95-96 (2d Cir. 2020) (Statements made during a

recorded 911 call); United States v. Ibanez, 328 Fed. App’x 673, 675 (2d

Cir. 2009) (“That’s the guy right there.”); United States v. Jones, 299 F.3d

103, 107, 113 (2d Cir. 2002) (law enforcement witness testified that the

declarant called him and said that there was: “‘[A] guy across the street,’

with ‘his pants down around his ankles,’ ‘who was masturbating’ and

calling ‘psst, psst, psst.’”); United States v. Menendez, 315 Fed. App’x 103,

107 (11th Cir. 2008) (refusing to admit evidence under 803(1) where the

statement “does not describe anything that [the declarant] was

perceiving at the time.”).

But, as the instant case demonstrates, federal courts have not

uniformly applied this requirement. See e.g. United States v. Beck, 122

F.3d 676, 682-81 (8th Cir. 1997) (permitting as a present-senseimpression, a witness testimony that “described what he did and

observed in connection with his controlled purchases of marijuana and

firearms from the defendant”); United States v. Danford, 435 F.3d 682

(7th Cir. 2005) (district court did not err in admitting testimony under

Rule 803(1), when jewelry store employee testified that when she asked

the store manager what the manager and defendant, the store owner,

had just been talking about two weeks before defendant reported that the

jewelry in store was robbed, store manager told her that defendant had

inquired about how to disarm the store’s alarm system); United States v.

Peacock, 654 F.2d 339 (5th Cir. 1991) (Testimony concerning declarant’s

statement to his wife made immediately after telephone conversation

relating substance of telephone conversation was properly admitted as

present sense impression).

II.

The Second Circuit’s decision illustrates perfectly how

the application of Rule 803(1) is inconsonant with the

rule’s original intent.

This case provides an excellent vehicle for reorienting federal courts

Rule

803(1)’s

original

purpose

and

correcting

the

courts’

misapplication of the rule.

In combination, a lack of contemporaneity, both Millien’s and

Ramirez’s obvious motive to fabricate, and especially Ramirez’s summary

of events, take Ramirez’s testimony far outside the present sense

impressing exception to the hearsay rule and trigger all the concerns that

underlay the prohibition against hearsay in the first instance. A lack of

contemporaneity, a motive to fabricate, and the summary of events are,

taken together, disqualifying. All the concerns the undergird the hearsay

exception are triggered here. A narration risk, a sincerity risk, a memory

risk, and a perception risk are all present in spades.

Millien was not a disinterested declarant because he and Rodriguez

were rivals in a battle over drug-selling turf.

Ramirez was not a

disinterested witness because she believed that Rodriguez shot and killed

her boyfriend. Millien and Rodriguez were rivals; they were competitors

in the drug trade were bravado and bluster are commonplace. Millien

had absolutely no reason to accurately report anything that Rodriguez

said to him, at any time. So, too, with Millien’s recounting. Long after

Millien’s death; long after her first of many meetings with law

enforcement; and pursuant to a compulsion order, Ramirez revealed, in

summary fashion, what Millien allegedly told her.

Moreover,

the

present

sense

impression

contemplates

the

admission of a precise statement made by the declarant “describing or

explaining an event or condition.” Fed. R. Evid. 803(1). But Ramirez did

not testify to any precise statement directly attributable to Millien.

Rather, she recited a summary of what Millien said. Ramirez testified:

“[Millien] told me that [Rodriguez] was telling him that

he didn’t want him to have customers come upstairs to the

sixth floor to buy marijuana.” (Tr. 123).

*****

“He would say that it was the same thing. Every time

he went out there, [Rodriguez] would just say that he didn’t

want [Millien] to have customers come up to the sixth floor.”

(Tr. 124).

*****

[Rodriguez] would tell [Millien] that he didn’t want

[Millien] to bring customers to the sixth floor to the [sic]

purchase marijuana.” (Tr. 125).

Clearly these are summaries of conversations – plural – that each lasted

about five minutes. (Pet. App. 5a).2 Either Millien did not relay wordfor-word to Ramirez what Rodriguez said, or Millien did relay the

conversation

word-for-word,

but

Ramirez

chose

summarize

Rodriguez’s supposed statements for the jurors. This is precisely what

the government told the court Ramirez would do pre-trial. See 5/31/23

Tr. 9 (Prosecutor: Ramirez will say “basically a one sentence description

of, he doesn’t want me selling marijuana on the floor.”). Conversations

that, according to Ramirez, lasted five minutes were abridged to a single

sentence. (Pet. App. 5a). But the present sense impression exception

permits a “statement” describing an “event or condition,” not a statement

describing the gist of an entire conversation.

The Summary Order provides: “While each encounter with

Rodriguez lasted approximately five minutes, Ramirez testified that

Millien reported the events to her ‘as soon as’ they ended and Millien

reentered her apartment.” (Pet. App. 5a).

If courts are permitted to allow a witness to summarize and entire

conversation, and it tolerates a lack of contemporaneity, and it admits

the statement even though both the declarant and the witness each have

a motive for insincerity, then the present sense impression exception will

lack meaningful boundaries.

The reason that present sense impressions are excluded from the

hearsay

rule

because

courts

are

willing

believe

“that

contemporaneous statements about observed events leave less time to

forget and fabricate, and therefore, tend to be reliable.” United States v.

Gonzalez, 764 F.3d 159, 169 (2d Cir. 2014). But there was nothing

intrinsically reliable about anything Ramirez said, and the preconditions

to admissibility were far from satisfied.

The court’s error in admitting the evidence was not harmless. The

government presented evidence that Millien’s drug sales were in

competition with defendant’s five-member gang.

The hallway

conversations between Millien and Rodriguez were essential to establish

that even though others may have had a similar motive, Rodriguez was

the true killer. Other evidence corroborated that Rodriguez was angry

with Millien, but nothing corroborated Ramirez’s summaries of the

substance of multiple conversations.

Guidance from this Court is greatly needed to clarify the scope and

proper application of Rule 803(1), and to curb its rampant misapplication.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

/s/ Jamesa J. Drake

Jamesa J. Drake

Drake Law LLC

P.O. Box 56

Auburn, ME 04212

(207) 330-5105

Appendix Table of Contents

Appendix A, Summary Order of the United States

Court of Appeals for the Second Circuit,

dated May 22, 2025 ................................................................................. 1a

Appendix B, Order of the United States

Court of Appeals for the Second Circuit

(denying petition for rehearing), dated July 2, 2025 ........................... 12a

Appendix C, Ruling and Transcript Excerpt

of the United States District Court for the Southern

District of New York (re: Rule 803(1)) ................................................. 13a

Case: 23-7280, 05/22/2025, DktEntry: 60.1, Page 1 of 11

Pet. App. 1a

23-7280

United States v. Rodriguez

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND

IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS

COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR

AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of The United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 22nd day of May, two thousand twentyfive.

PRESENT:

ROBERT D. SACK,

RICHARD C. WESLEY,

BETH ROBINSON,

Circuit Judges.

_________________________________________

UNITED STATES OF AMERICA,

Appellee,

No. 23-7280

JOSHUA RODRIGUEZ,

Defendant-Appellant.

_________________________________________

FOR APPELLANT-DEFENDANT:

JAMESA J. DRAKE, Drake Law LLC,

Auburn, ME.

Case: 23-7280, 05/22/2025, DktEntry: 60.1, Page 2 of 11

Pet. App. 2a

COURTNEY HEAVEY (Mathew

Andrews, James Ligtenberg,

Stephanie Simon, on the brief),

Assistant United States Attorneys, for

Matthew Podolsky, Acting United

States Attorney for the Southern

District of New York, New York, NY.

FOR APPELLEE:

Appeal from a criminal judgment entered in the United States District Court

for the Southern District of New York (Rakoff, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on September 26, 2023,

is AFFIRMED.

Defendant-Appellant Joshua Rodriguez appeals from a criminal judgment

convicting him following a jury trial of, among other charges, murder through the

use of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(j)(1). 1

We assume the parties’ familiarity with the underlying facts, procedural history,

and arguments on appeal, to which we refer only as necessary to explain our

decision.

Rodriguez was also convicted of (1) conspiracy to distribute or possess with intent to distribute

marijuana in violation of 8 U.S.C. §§ 846, 841(b)(1)(C); and (2) possessing with intent to distribute

marijuana in violation of 8 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(D). He does not challenge those

convictions on appeal.

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Pet. App. 3a

The government introduced evidence at trial that Rodriguez sold marijuana

at 1408 Webster in the Bronx. In 2017, Jaquan Millien began selling marijuana from

the sixth floor of 1408 Webster, where his girlfriend, Yanellie Ramirez, lived.

Rodriguez was upset that Millien’s marijuana business competed with his.

About six months after a physical altercation between Rodriguez and

Millien arising from this conflict, in October 2018, Millien was fatally shot in the

stairwell of 1408 Webster. His five-year-old son was also shot but survived the

incident. Edwin Mena—a resident of the building at the time who was dating

Rodriguez’s mother and was thus familiar with Rodriguez—heard a noise from

the gunshots and went into the hallway of the eighth floor to see what happened.

He heard crying from one of the stairwells, opened the door and started going

down, then saw Rodriguez running up the staircase with a gun in his hand stating

that he had just shot somebody. A couple of months later, at a holiday party,

Rodriguez told Mena that he did not know why he did it.

On the basis of this and other evidence, the jury convicted Rodriguez on the

murder charge. On appeal, he challenges two of the district court’s rulings.

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Pet. App. 4a

Present Sense Impression Evidence

“We review a district court’s evidentiary rulings under a deferential abuse

of discretion standard.” United States v. Kandic, 134 F.4th 92, 99 (2d Cir. 2025).

Ramirez testified that two or three times between 2017 and 2018, Rodriguez

asked to speak with Millien in the sixth-floor hallway of 1408 Webster. Millien

complied and, after each occasion, “[a]s soon as” Millien came back inside

Ramirez’s apartment, he told her that Rodriguez said “he didn’t want [Millien] to

have customers come upstairs to the sixth floor.” App’x 32. The district court

admitted these statements over Rodriguez’s objection, determining that they were

admissible as “present sense impressions” because the statements were made

“immediate[ly] or close to immediate[ly]” following Millien’s conversations with

Rodriguez. App’x 25–26. Rodriguez challenges that ruling on appeal.

A present sense impression is defined as “a statement describing or

explaining an event or condition, made while or immediately after the declarant

perceived it.”

Fed. R. Evid. 803(1).

“Such statements are considered to be

trustworthy because the contemporaneity of the event and its description limits

the possibility for intentional deception or failure of memory.” United States v.

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Pet. App. 5a

Jones, 299 F.3d 103, 112 (2d Cir. 2002). 2 Thus, present sense impressions are

exceptions to the general rule against hearsay. Id.

Asserting that there was a five-minute lapse between Millien’s encounters

with Rodriguez and his statements to Ramirez, Rodriguez argues that the court

should have excluded Ramirez’s recounting of Millien’s statements due to the time

lapse combined with Millien’s “motive for insincerity” because of his competition

with Rodriguez. Appellant’s Br. at 23–24. But the record does not support

Rodriguez’s premise that there was a five-minute lapse. While each encounter

with Rodriguez lasted approximately five minutes, Ramirez testified that Millien

reported the events to her “as soon as” they ended and Millien reentered her

apartment. App’x 32. The advisory committee notes to Rule 803 recognize that

“in many, if not most[] instances[,] precise contemporaneity is not possible and

hence a slight lapse is allowable.” Fed. R. Evid. 803(1) advisory committee’s note

(1972). And, here, the declarant—Millien—reported the events “immediately

after” they occurred, as permitted by the plain text of Rule 803(1).

In quotations from caselaw and the parties’ briefing, this summary order omits all internal

quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.

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Pet. App. 6a

To the extent that Millien had a “motive for insincerity,” as Rodriguez

argues, that goes to the weight of the evidence, not its admissibility, and Rodriguez

could have explored any such motivation on cross-examination. See, e.g., United

States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (Where a challenge “do[es] not bear

upon the admissibility of evidence” and instead “only [on] the weight of the

evidence,” there is no “basis for reversal.”).

We also reject Rodriguez’s argument that the district court committed

reversible error by allowing Ramirez to offer only summaries of what Millien said

rather than “precise statement[s].” Appellant’s Br. at 24. Neither party points to

any binding precedent involving a present sense impression summarizing or

paraphrasing a statement. But even if Ramirez’s summary was not permissible,

any error here was harmless. See, e.g., United States v. Paulino, 445 F.3d 211, 219 (2d

Cir. 2006).

“An erroneous ruling on the admissibility of evidence is harmless if [we]

can conclude with fair assurance that the evidence did not substantially influence

the jury.” United States v. Cummings, 858 F.3d 763, 774 (2d Cir. 2017). The test for

harmless error is not whether “disregarding the erroneously introduced evidence,

there was other evidence which was independently sufficient to establish [the

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Pet. App. 7a

defendant’s] guilt.” Id. “Rather, we must evaluate the manner in which, in the

total setting of the case, the error influenced the jury.” Id. “The strength of the

government’s case against the defendant is probably the most critical factor in

determining whether an error affected the verdict.” United States v. Colombo, 909

F.2d 711, 714 (2d Cir. 1990).

Here, the objected-to testimony established that Rodriguez warned Millien

not to sell marijuana in the 1408 Webster building. At most, the statements

corroborated other admitted evidence to which Rodriguez did not object. Most

significantly, Ramirez testified that in March 2018 Rodriguez and Millien were in

a physical altercation on the sixth floor of 1408 Webster, which she helped break

up. In the altercation, Rodriguez drew a blade on Millien, and Millien punched

Rodriguez. After the fight, Rodriguez warned Ramirez that she should not allow

Millien to sell marijuana from her apartment. Rodriguez’s hospital records from

March 2018 reflected a report of jaw pain resulting from “blunt force trauma to

[his] jaw” sustained during a “fight.” June 1, 2023 Trial Tr. 184:3–85:16, No. 22-cr316 (S.D.N.Y. July 19, 2023), ECF No. 53.

Moreover, Mark Martinez, who lived across the street from 1408 Webster

and bought marijuana from both Rodriguez and Millien, testified that he saw

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Pet. App. 8a

Rodriguez follow people who were buying marijuana from Millien into 1408

Webster and that Rodriguez was “pissed off.” Id. at 203:12–15; see also id. at 203–

04. This evidence highlighted a conflict between Rodriguez and Millien about

marijuana sales in 1408 Webster wholly independent of the objected-to statements.

Because Millien’s statements admitted as present sense impressions are

“cumulative” of other “ample evidence” of a dispute between Millien and

Rodriguez over marijuana sales at 1408 Webster, any claimed error was harmless.

United States v. Ivezaj, 568 F.3d 88, 98–99 (2d Cir. 2009).

II.

Summation

During trial, a question arose as to whether Rodriguez could pursue an

“alternative perpetrator” defense, highlighting the presence of other rival dealers

who had incentives to harm Millien. Rodriguez explained that he did not have

“any particular evidence . . . establishing a nexus to a particular individual as the

alternative perpetrator,” but that he wanted to argue in closing, based on the

government’s evidence, that there “were multiple individuals who had the motive

and the opportunity” to murder Millien. App’x 37. Specifically, Rodriguez points

to Martinez’s testimony that individuals selling drugs in the Butler houses—1368

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Pet. App. 9a

Webster and 1408 Webster—could not go to the opposite building to sell drugs as

that could be perceived as infringing upon someone else’s turf.

The district court determined that this testimony was “insufficient to

establish the requisite nexus” for an alternative perpetrator defense, and it

indicated that “subject to whatever else emerges in the evidence,” it would not

permit Rodriguez to make an “alternative perpetrator” argument in summation.

App’x 36.

Before summation, Rodriguez’s counsel revisited the district court’s ruling,

saying, “I understand I’m not permitted to say that any other particular individual

was the perpetrator . . . but I’m certainly free to argue that there’s no proof that my

client is the one who did it, and that perhaps someone else did it and was not

caught.” June 5, 2023 Trial Tr. 618:23-19:2, No. 22-cr-316 (S.D.N.Y. July 19, 2023),

ECF No. 59.

The government responded that Rodriguez was free to argue that

somebody else could have done it, but was not allowed to argue that someone else

did it “because you heard about some drug beef going or some generalized drug

dispute . . . or maybe he was robbed or maybe this was [one of Rodriguez’s

identified confederates in selling marijuana], without any actual nexus.” Id. at

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Pet. App. 10a

620:21-24. Defense counsel responded, “I wasn’t going to argue any of those

things,” and the court noted they apparently had an agreement. Id. at 621:2-3.

In closing, defendant highlighted testimony about other individuals who

sold marijuana at 1408 Webster, and about the turf war involving individuals from

across the street coming into 1408 Webster and making money selling drugs. But

Rodriguez was precluded from arguing specifically that other dealers seeking to

protect their turf at 1408 Webster might have killed Millien.

We review a court’s decision “to limit the scope of summation” for abuse of

discretion. United States v. Lee, 834 F.3d 145, 161 (2d Cir. 2016); cf. United States v.

Ulbricht, 858 F.3d 71, 119–20 (2d Cir. 2017) (reviewing a district court’s decision

whether to permit a defendant to elicit testimony concerning an alternative

perpetrator for abuse of discretion), overruled on other grounds by Carpenter v. United

States, 585 U.S. 296 (2018).

“Although there is no doubt that a defendant has a right to attempt to

establish his innocence by showing that someone else did the crime, a defendant

still must show that his proffered evidence on the alleged alternative perpetrator

is sufficient, on its own or in combination with other evidence in the record, to

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Pet. App. 11a

show a nexus between the crime charged and the asserted alternative perpetrator.”

Wade v. Mantello, 333 F.3d 51, 61–62 (2d Cir. 2003). Speculation is insufficient. Id.

For example, in United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019), we

determined that the defendant did not sufficiently support a misidentification

defense where he pointed to a specific third party who was close with one of the

alleged co-conspirators, was closer to the perpetrator’s age as estimated by an

eyewitness, and got a call from the co-conspirator before and after the robbery. Id.

at 331. Because the evidence did not place the third party near the crime scene or

otherwise establish that he was involved in the crime, we concluded that the

district court did not abuse its discretion in excluding evidence of the third party.

Id.

As Rodriguez concedes here, there was no evidence of a nexus between any

alternative perpetrator and the murder. On this record, the district court acted

within its discretion in limiting closing arguments to the evidence “actually

presented in the case.” United States v. Bautista, 252 F.3d 141, 145 (2d Cir. 2001).

* * *

For the foregoing reasons, the District Court’s judgment is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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Pet. App. 12a

UNITED STATES COURT OF APPEALS

for the

SECOND CIRCUIT

____________________________________________

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on

the 2nd day of July, two thousand twenty-five,

Present:

Robert D. Sack,

Richard C. Wesley,

Beth Robinson,

Circuit Judges,

_______________________________________

United States of America,

ORDER

Docket No. 23-7280

Appellee,

Joshua Rodriguez,

Defendant - Appellant.

_______________________________________

Appellant Joshua Rodriguez having filed a petition for panel rehearing and the panel that

determined the appeal having considered the request,

IT IS HEREBY ORDERED that the petition is DENIED.

For The Court:

Catherine O'Hagan Wolfe,

Clerk of Court

Pet. App. 13a1

N5VBROD1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------x

UNITED STATES OF AMERICA,

22 Cr. 316 (JSR)

JOSHUA RODRIGUEZ,

Defendant.

Trial

------------------------------x

New York, N.Y.

May 31, 2023

9:30 a.m.

Before:

HON. JED S. RAKOFF,

District Judge

-and a Jury-

APPEARANCES

DAMIAN WILLIAMS

United States Attorney for the

Southern District of New York

BY: JAMES LIGTENBERG

COURTNEY HEAVEY

MATHEW ANDREWS

Assistant United States Attorneys

AVRAHAM MOSKOWITZ

DONALD YANNELLA

EYLAN SCHULMAN

Attorneys for Defendant

Also Present:

William Coleman, USAO Paralegal Specialist

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

Pet. App. 14a2

N5VBROD1

(Case called)

THE DEPUTY CLERK:

appearance for the record.

MR. LIGTENBERG:

Will the parties note their

Good morning, your Honor.

Assistant

District Attorney Jim Ligtenberg, and I'm joined by my

colleagues AUSA Courtney Heavey, AUSA Matthew Andrews and

paralegal specialist William Coleman.

THE COURT:

MR. MOSKOWITZ:

THE COURT:

Good morning.

Good morning, your Honor.

I hope some day to be a paralegal

generalist.

MR. MOSKOWITZ:

Good morning, your Honor.

Avi

Moskowitz, Don Yannella and Eylan Schulman for Mr. Rodriguez

who's seated in between Mr. Yannella and Mr. Shulman.

THE COURT:

Good morning.

Please be seated.

All

right.

excluded from the courtroom with the exception of, if there's

any agent, case agent that the government wants in the

courtroom, you can have one agent; and if there's any -- other

than defendant -- the defendant of course can be seated as he

is at counsel table.

or a potential witness?

MR. LIGTENBERG:

THE COURT:

First, all witnesses or potential witnesses are hereby

So I assume no one else here is a witness

Correct, your Honor.

Very good.

the motions in limine.

All right.

With respect to

While it's always true that my rulings

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

Pet. App. 15a3

N5VBROD1

on motions in limine are subject to reconsideration if the door

is opened or some other unexpected event occurs, I think in

this particular case, some of these motions can't be decided

until I hear more of the evidence, but some can.

government motion is admissibility of certain statements made

by the deceased victim about what he and the defendant said as

relaid to the victim's wife.

as to the statements that the victim made during the --

immediately after a violent March 2018 confrontation with the

defendant which have all the earmarks of both excited

utterances and present state impressions.

So the first

I think the witness can testify

With respect to all the others, it's not clear to

me -- and maybe the government wants to elaborate on this --

exactly when these statements were made to the witness in

relation to the underlying events that are their predicate.

let me hear from the government on that.

MS. HEAVEY:

Yes, your Honor.

So the witness I

believe will testify that she saw the defendant in the hallway.

The defendant asked to speak with the victim.

her apartment, tells the victim that the defendant wants to

speak with him.

She goes into

THE COURT:

This is when?

MS. HEAVEY:

This is mid -- there's multiple.

So this

happens about three to four times starting in mid to late 2017.

And this is the before the physical fight.

So there were three

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

Pet. App. 16a4

N5VBROD1

to four occasions where this similar thing occurred before the

physical fight.

THE COURT:

And what occurred?

MS. HEAVEY:

So what happened was, as I said, she saw

the defendant in the hallway.

speak to -- go get Jaquan.

THE COURT:

That of course is --

MS. HEAVEY:

I'm just setting the context.

into her apartment.

effect on the listener.

sees him go out into the hallway.

would say he comes back into the apartment. And immediately

upon coming back into the apartment, she says what happened.

And he says, the defendant just told me he doesn't want me

selling marijuana in the hallway.

THE COURT:

The defendant said I want to

I want to speak to Jaquan.

She tells Jaquan.

She goes

That's admissible as

Jaquan goes out into the hallway.

Okay.

She

A minute or two later she

Let me hear on those from defense

counsel.

MR. MOSKOWITZ:

Your Honor, as I think we tried to

articulate in our brief, perhaps not perfectly.

not the type of event that the present sense impression was

meant to cover.

then essentially you're swallowing up the hearsay rule.

time you want to get in hearsay, all you have to did do is say,

two minutes ago I spoke to somebody, and this is what he told

me.

It's a conversation.

I think that's

If that's admissible,

Any

If Mr. Rodriguez allegedly said, I killed Jimmy Hoffa,

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

Pet. App. 17a5

N5VBROD1

that would be admissible for the truth of the matter asserted.

That can't possibly be what the present sense impression was

meant to cover.

Present sense impression generally is for some

sort of event.

I'm watching something and I'm seeing it happen

and I'm commenting on it.

had a conversation.

THE COURT:

It's not generally thought of as, I

I'm coming to relay the conversation.

And I may agree to that, but what about

excited utterance if for example -- and I'm not sure this is

true any of these as opposed to the later -- if he said, he

just threatened to shoot me.

MR. MOSKOWITZ:

I agree with your Honor, that might be

different.

If he came in all agitated and hyped up, you know,

I can't believe what that guy just -- that might be different.

But this is simply going out having a conversation, coming back

and relaying the conversation.

runaround the hearsay rule which swallows the rule.

That just seems to me a

THE COURT:

Let me hear from the government.

MS. HEAVEY:

Your Honor, what we're dealing with here

is two levels of hearsay.

So I agree it's not an end runaround

here because what we have to look at is that the defendant's

statement to Jaquan is admissible as a statement against the

defendant.

asking for present sense impression to allow Jaquan to be able

to say that anyone, anywhere said anything.

take the first statement of what Jaquan said that person said.

So there's a separate hearsay analysis.

We're not

We would have to

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

Pet. App. 18a6

N5VBROD1

That's hearsay.

no concern about it swallowing the rule because the first step,

defendant's statements to Jaquan are not hearsay because

they're the statement against the defendant.

Is there a hearsay exception.

THE COURT:

So here there's

But I don't understand -- so the

defendant's statements to Jaquan are not hearsay because

they're a statement of a party adversary.

But now the hearsay thing is that it's not the person who heard

those statements who is relating them, it's a person who

heard -- in this case the victim -- make the statements to her,

so there's the hearsay problem.

her hearing those statements a question of her present sense

impression.

MS. HEAVEY:

I understand that.

So the question then is why is

So then the next step is the declarant's

present sense impression.

witness is not hearsay because of present sense impression.

THE COURT:

So Jaquan's statement to this

That's the right way to characterize it.

I mischaracterized it.

So why is his statement to her, the

victim statement to his wife, right?

MS. HEAVEY:

His girlfriend, yes.

THE COURT:

His girlfriend. Why is that present sense

impression as opposed to a present sense impression might be, I

think he's out to get me.

like that, but this is just, here's what he said.

MS. HEAVEY:

He just drew his gun or something

Your Honor, if we go to the reason for

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

Pet. App. 19a7

N5VBROD1

the present sense impression exception, it's because of the

near contemporaneous nature of what the person is describing

and when it actually happened.

something so close in time that the person is just telling you

what literally just happened, they're not going to be -- the

incentive or ability to make it up isn't there, and so you have

the indicia of reliability.

sense impression, and here we have nearly contemporaneous.

Jaquan steps out of the apartment.

minute or two.

his girlfriend says, what happened.

just happened is a present sense impression.

if it's a statement about what the person said or the nature of

what the person said.

it is a description of what just happened.

That's the purpose of the present

He comes back.

THE COURT:

The idea being that if you have

He's in the hallway for a

And as soon as he comes back

And the statement of what

It doesn't matter

It's a present sense impression because

So you're saying that the present sense

impression exception is applicable because of the very limited

time between when they had the meeting and when he comes back

in and says.

timing?

And what is the girlfriend going to say was the

MS. HEAVEY:

First, your Honor, precisely to answer

your question.

And the girlfriend will say, he was out in the

hallway for a minute or two.

And as soon as he came in she ask

him each time, what happened.

Now, we agree it would be

different if they sat down for lunch and she was making lunch

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

Pet. App. 20a8

N5VBROD1

for them and they sat down and she said, hey, what happened in

the hallway by the way --

THE COURT:

I understand the point.

MS. HEAVEY:

It's the fact that he walks in the door

and she says, what was that about, and he immediately tells

her.

THE COURT:

So what about that?

MR. MOSKOWITZ:

Judge, we don't know if the entire

conversation takes ten seconds and he stops in the hallway and

thinks about it and goes back in.

How long is the actual conversation versus how long he steps

out.

But the bottom line on it is from the defense perspective, it's

really hard to believe that this is the type of event that is

subject to the present sense impression because it is just too

dangerous to allow a statement as opposed to an event.

commenting on an event, that's one thing.

about a conversation, that I think is another thing altogether

and not really what the present sense impression was designed

to cover.

We don't have that context.

And the timing on this is somewhat amorphous altogether.

If I'm

If I'm reporting

THE COURT:

Let me take a quick look at what the

advisory notes say about this.

803(1).

condition made while or immediately after the declarant

perceived it." The declarant here being the deceased.

So I'm looking at Rule 803,

"A statement describing or explaining an event or

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

And

Pet. App. 21a9

N5VBROD1

United States v. Jones, 299 F.3d 103 states that "Such

statements are considered to be trustworthy because the

contemporaneity of the event and its description limits the

possibility of intentional deception or failure of memory."

That was the point the government just made.

there's a decision, United States v. Mejia-Velez, 855 F. Supp

607 out of the Eastern District that says "To qualify as a

present sense impression, a hearsay statement must satisfy

three conditions:

the event perceived; two, the declarant must have in effect

perceived the event described; and three that the description

must be substantially contemporaneous with the event in

question."

the victim comes in and tells his girlfriend immediately after

the statements were made -- you know what he just said to me or

some word to that effect.

take an example.

And I see that

One, the statement must describe or explain

So I think what the government is saying is that

MS. HEAVEY:

What exactly is she going to say,

She will say Jaquan walked into the

apartment.

defendant just told me he doesn't want me selling on the floor;

or the defendant just told me that I'm making the floor hot.

Basically a one sentence description of, he doesn't want me

selling marijuana on the floor.

She said, what happened.

THE COURT:

Yeah.

And he said, the

I'm inclined to admit them now that

I've reviewed the case law and the reasons for it.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

I think it

Pet. App. 22a10

N5VBROD1

would be a different story if there's a long period of time

between when the event underlying statements were made and when

he reports them to the girlfriend, but sounds like it's

immediate or close to immediate which, is the rationale of the

rule.

Okay.

Let's go on.

The next motion is the admissibility of the 911 call

after the caller discovered the victim had been shot, and

that's being offered under the excited utterance exception.

Let me hear from the defense why you don't think that fits the

excited utterance

MR. MOSKOWITZ:

THE COURT:

Judge, we did not object to that.

All right.

So that one is granted.

The

third government motion in limine is to preclude cross

examination of a civilian witness regarding misdemeanor

convictions that are over ten years old for I guess public

lewdness.

that cannot be inquired into because of its age and prejudicial

effect and lack of direct relevance to truthfulness or

untruthfulness, but so I'm inclined to grant that motion unless

there's anything further defense counsel wanted to say.

That would seem to be a classic case of something

MR. MOSKOWITZ:

Judge, first of all, as I read the RAP

sheet, it was a felony; but put that aside for a moment.

real issue with that conviction is the witness's statement that

he didn't do it, and he lied to the court in his allocution.

don't really care about the nature of the conviction.

SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300

The

It's

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