Case 3:16-cr-00051-BR

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BILLY J. WILLIAMS, OSB #901366

United States Attorney
District of Oregon
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys
ethan.knight@usdoj.gov
geoffrey.barrow@usdoj.gov
craig.gabriel@usdoj.gov
1000 SW Third Ave., Suite 600
Portland, OR 97204-2902
Telephone: (503) 727-1000
Attorneys for United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
3:16-CR-00051-BR-8

UNITED STATES OF AMERICA

v.
PETER SANTILLI,

GOVERNMENTS REPLY TO
DEFENDANT SANTILLIS
RESPONSE TO GOVERNMENTS
TRIAL MEMORANDUM (#1011)

Defendant.
The United States of America, by Billy J. Williams, United States Attorney for the
District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel,
Assistant United States Attorneys, respectfully submits this reply to Defendant Santillis
Response to Governments Trial Memorandum (ECF No. 1011).
Defendant Santilli proposes to offer several audio and video recordings into evidence.
(Def.s Resp. 2). Although the specific audio and video recordings are not identified or
described, the government presumes that defendant Santilli is referring to audio and video

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recordings that he produced during the course of the conspiracy that contain his statements. As
a threshold matter, any such audio or video recordings must be relevant under Rule 401.
Relevant evidence is evidence that (1) has any tendency to make a fact more or less probable
than it would be without the evidence and (2) the fact is of consequence in determining the
action. Fed. R. Evid. 401. Relevant evidence may be excluded if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid.
403.
Defendants out-of-court statements must also overcome the prohibition on hearsay.
Defendant Santilli has not identified any non-hearsay statements. Instead, he claims that the
unspecified statements should all be admissible under four exceptions to the prohibition
against hearsay: Rule 803(1), Rule 803(3), Rule 803(6), and Rule 807. (Def.s Resp. 2).1
While it is extremely difficult to analyze without knowing the particular statements at issue, the
government is not aware of any statements defendant Santilli made that qualify for these
exceptions.
As a general rule, a party is prohibited from introducing a statement made by an out-ofcourt declarant when it is offered at trial to prove the truth of the matter asserted. United States
v. Torres, 794 F.3d 1053, 1059 (9th Cir. 2015). Rule 801(a) defines a statement as a
persons oral assertion, written assertion, or non-verbal conduct, if the person intended it as an

Defendant Santillis Response discusses the business records exemption but cites Fed. R.
Evid. 803(7) which deals with the absence of a record kept in the ordinary course of business.

Governments Reply to Defendant Santillis Response to Governments Trial

Memorandum (#1011)

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assertion. Prior statements made by a defendant are non-hearsay and are admissible as
admissions only if offered against him by the party opponent, here, the government. Fed. R.
Evid. 801(d)(2)(A). A defendant may not use his own prior statements even where the
government introduces incriminating portions of them. See, e.g., United States v. Nakai, 413
F.3d 1019, 1022 (9th Cir. 2005) (holding inadmissible hearsay defendants exculpatory
statements that defense sought to introduce to disprove specific intent after FBI agent testified
about defendants inculpatory statements); United States v. Ortega, 203 F.3d 675, 682 (9th Cir.
2000) (non-self-inculpatory statements, even if made contemporaneously with other selfinculpatory statements, are inadmissible hearsay; rule of completeness does not allow for
admission of inadmissible hearsay). Defendant Santilli cannot offer his own out-of-court
statements at trial. Any attempt by defendant Santilli to place his statements before the jury
without subjecting [himself] to cross-examination [is] precisely what the hearsay rule forbids.
United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988). Defendant Santillis video and
audio recordings are classic hearsay and they are inadmissible under the rules of evidence.
I.

Fed. R. Evid. 803(1)Present Sense Impression

Rule 803(1) provides an exception to the hearsay rule for statements describing or

explaining an event or condition, made while or immediately after the declarant perceived it.
To qualify, the declarant must have personally perceived the event described, the declaration
must be an explanation or description of the event rather than a narration, and the declaration and
the event described must be contemporaneous. See United States v. Mitchell, 145 F.3d 572,
57677 (3d Cir. 1998); United States v. Gil, 58 F.3d 1414, 1422 (9th Cir. 1995); 2 George E.

Governments Reply to Defendant Santillis Response to Governments Trial

Memorandum (#1011)

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Dix, et al., McCormick on Evid. 271 (7th ed. 2016). The government is not aware of any of
defendant Santillis video or audio recordings that contain present sense impressions of relevant
events. Instead, defendant Santilli frequently provides opinions or commentary regarding
events that have previously occurred, are about to occur, or that he believes should take place.
Such statements are not exempted from the hearsay rule as present sense impressions.
II.

Fed. R. Evid. 803(3)Then-Existing Mental, Emotional, or Physical Condition

Rule 803(3) provides that the following are not excluded by the rule against hearsay:
A statement of the declarants then-existing state of mind (such as motive, intent,
or plan) or emotional, sensory, or physical condition (such as mental feeling, pain,
or bodily health), but not including a statement of memory or belief to prove the
fact remembered or believed unless it relates to the validity to terms of the
declarants will.

In United States v. Kahre, 737 F.3d 554 (9th Cir. 2013), the Ninth Circuit considered a district
courts exclusion of witness testimony about defendants good faith belief regarding their
violations of tax law. On appeal, defendants argued that the statements should have been
admitted under Fed. R. Evid. 803(3). The court ruled that witness testimony about the
defendants state of mind at the time, a subject about which [defendants] could be examined and
cross-examined if they took the stand is inadmissible hearsay. Kahre, 737 F.3d at 577 (citing
United States v. Bishop, 291 F.3d 1100, 111011 (9th Cir. 2002)). [A] second-hand statement
of memory or belief to prove the fact remembered is irrelevant hearsay. Bishop, 291 F.3d at
111011.
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Governments Reply to Defendant Santillis Response to Governments Trial
Memorandum (#1011)

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III.

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Fed. R. Evid. 803(6)Records of a Regularly Conducted Activity

Rule 803(6) provides that certain business records are not hearsay if:
(A) the record was made at or near the time byor from information
transmitted bysomeone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and
(E) the opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.
To admit evidence under Rule 803(6), the proponent of the record must demonstrate

through the testimony of a qualified witness that the records were kept in the course of a
regularly conducted business activity and that it was the regular practice of that business to make
such records. Records prepared in anticipation of litigation lack trustworthiness and are not
admissible under Rule 803(6). See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 32122
(2009); United States v. Miller, 771 F.2d 1219, 1238 (9th Cir. 1985).
At this point, the government does not know how defendant Santilli intends to establish
that any of the audio and video recordings he made are kept in the ordinary course of business.
However, even a cursory review of the recordings raises significant questions regarding their
trustworthiness. The videos generally involve defendant Santilli talking to the camera. He is
deliberately recording himself and he frequently catches himself saying something that he
corrects in an effort to leave the impression that he is not engaged in illegal activity. He
repeatedly states his belief that federal agents are monitoring his videos and that he is not
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Governments Reply to Defendant Santillis Response to Governments Trial
Memorandum (#1011)

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engaged in illegal activity. As such, the videos lack trustworthiness and should not be admitted
as business records.
IV.

Fed. R. Evid. 807Residual Exception

The Residual Exception is an exception to the hearsay rule that provides for the

admissibility of a statement that: (1) has equivalent circumstantial guarantees of trustworthiness

as other hearsay exceptions; (2) is offered as evidence of a material fact; (3) is more probative on
the point for which it is offered than any other evidence that the proponent can obtain; and
(4) admitting the statement will best serve the purposes of the Rules of Evidence and the interests
of justice. In United States v. Shryock, 342 F.3d 948, 980 (9th Cir. 2002), Raymond Shryock, a
member of the Mexican Mafia, was charged with the murder of Albert Orosco and the attempted
murder of Hector Galvez. Larry Hernandez, a gang associate, shot Galvez. Hernandez
subsequently told the police that he shot Galvez in self-defense. Hernandez was not available at
trial and Shryock attempted to introduce Hernandez statement in his trial. The district court
refused to introduce the statement under Rule 807. On appeal, the court affirmed noting that the
exculpatory statement did not have circumstantial guarantees of trustworthiness. In this case,
defendant Santillis statements similarly lack trustworthiness. Moreover, he cannot
establish that the out-of-court statements are more probative than any other evidence that he can
readily obtain. Defendant Santilli is free to testify as to his state of mind.
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Governments Reply to Defendant Santillis Response to Governments Trial

Memorandum (#1011)

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Defendant Santillis audio and video recordings are pure hearsay.

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Unless and until he

establishes that particular recordings or portions of recordings satisfy a hearsay exception, they
are inadmissible.
Dated this 17th day of August 2016.
Respectfully submitted,
BILLY J. WILLIAMS
United States Attorney

s/ Geoffrey A. Barrow
ETHAN D. KNIGHT, OSB #992984
GEOFFREY A. BARROW
CRAIG J. GABRIEL, OSB #012571
Assistant United States Attorneys

Governments Reply to Defendant Santillis Response to Governments Trial

Memorandum (#1011)

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