“Sufficiently Reliable” Hearsay At Sentencing

Eighth Circuit concluded hearsay was sufficiently reliable to justify mandatory minimum sentence in drug prosecution, United States v. Pratt, 553 F.3d 1165 (8th Cir. Jan. 29, 2009) (No. 08-2459)

A recent Eighth Circuit case contrasts the different standard to admit hearsay at sentencing hearings than at trial. The question was whether an officer’s hearsay testimony was sufficiently reliable to justify a mandatory minimum sentence.

In the case, defendant Pratt pled guilty to conspiring to distribute and possess with intent to distribute 500 grams or more of methamphetamine mixture within 1,000 feet of a protected location and to distribute a controlled substance to a person under the age of 21, after a prior felony drug conviction, under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, 851, 859(a), and 860(a). The evidence of guilt was not contested. The sole issue was whether a mandatory minimum twenty year sentence should be imposed. The government argued that the defendant had committed acts in furtherance of the conspiracy after his state felony drug conviction on April 2002. If so, the defendant would be subjected to the mandatory minimum sentence based on his prior felony drug conviction, under 21 U.S.C. § 851.

At the sentencing hearing, the government provided court records supporting the prior state felony conviction. The government called one witness: Lieutenant Kramer, who was an investigator with the Sheriff’s Office. He testified about a pending drug investigation based on his involvement in the investigation, interviews, and investigative reports of others. He recounted interviews with a number of individuals who told him that defendant Pratt used or distributed drugs. The defense claimed the hearsay testimony was inadmissible. The defense called the defendant’s former probation officer, who testified that the defendant “tested positive for (1) unspecified drugs in June or August of 2002; (2) marijuana and methamphetamine in September 2002; (3) marijuana when entering a residential treatment facility in December 2002; and (4) unspecified drugs in January of 2003.” Pratt, 553 F.3d. at 1169. The sentencing court concluded the lieutenant’s testimony, although based on hearsay, was sufficiently reliable, and that the government had proven beyond a reasonable doubt that the defendant engaged in overt acts in furtherance of the conspiracy after his state felony conviction. An enhanced sentence was imposed, resulting in a 240 month sentence.

The Eighth Circuit affirmed, noting different evidentiary standards applied at sentencing and the sentencing court was permitted discretion to consider a wider range of relevant evidence. Pratt, 553 F.3d. at 1170 (citing United States v. Shackelford, 462 F.3d 794, 796 (8th Cir. 2006) (“Hearsay evidence, even double hearsay, can be used at sentencing proceedings if it bears ‘sufficient indicia of reliability to support its probable accuracy.’”) (quoting United States v. Wise, 976 F.2d 393, 402 (8th Cir. 1992), cert. denied, 507 U.S. 989 (1993) (quoting U.S.S.G. § 6A1.3(a)). The circuit explained the reliability of the hearsay testimony:

Pratt complains the hearsay testimony relayed by Lieutenant Kramer is not sufficiently reliable to support Pratt’s enhanced sentence. Lieutenant Kramer related how he personally interviewed five of Pratt’s co-conspirators and reviewed other officers’ reports from an interview conducted with a sixth co-conspirator. Using these interviews as his basis of knowledge, Lieutenant Kramer testified that three of Pratt’s co-conspirators indicated they purchased methamphetamine from Pratt after April 22, 2002; another one of Pratt’s co-conspirators confessed to selling methamphetamine to Pratt through the summer of 2002; still another co-conspirator acknowledged regularly using methamphetamine with Pratt until December 2002; and a coconspirator told Lieutenant Kramer that Pratt obtained methamphetamine from a source in Hartley, Iowa, until January 2003. Lieutenant Kramer’s hearsay testimony was corroborated by Pratt’s witness, his former probation officer, Koch, who testified Pratt had positive drug tests in August 2002, September 2002 (which included methamphetamine), December 2002, and January 2003. Koch also opined that, in his experience, methamphetamine is generally only detectible with a urinalysis drug test for 24 to 48 hours. Pratt’s evidence corroborates Lieutenant Kramer’s hearsay evidence because Koch’s testimony as to the dates Pratt tested positive for drug use corresponds with the dates Pratt’s co-conspirators reported they used methamphetamine with Pratt…. The hearsay statements relayed by Lieutenant Kramer at Pratt’s sentencing hearing were sufficiently reliable. The district court did not clearly err when it found, beyond a reasonable doubt, Pratt committed acts in furtherance of the conspiracy after April 22, 2002.

If the officer had testified at trial about the same matters, much of the testimony would have been inadmissible hearsay. However, at sentencing the FRE did not apply. So long as the hearsay was sufficiently reliable, it could be considered at sentencing.


Federal Rules of Evidence