Federal Evidence Review

E-mails from investors demanding information about defendant's fraudulent scheme were not hearsay when offered to provide context for the defendant's message, to rebut the defendant's argument that she did not know the scheme was fraudulent, and to show the defendant had received communications indicating the fraudulent nature of the project, in United States v. Dupre, 462 F.3d 131 (2d Cir. 2006), cert. denied, 127 S.Ct. 1026 (2007)

As e-mail evidence becomes more common, under what circumstances can e-mails of non-testifying witnesses be admitted? A fraud case highlights one scenario in which the e-mails may be admitted for a non-hearsay purpose.

In the case, two defendants defrauded investors of more than $1 million. Defendant Dupre described herself as an international financier. She offered to use investor money to release frozen assets once held by the family of past Philippines President Ferninand Marcos. She promised to pay investors a substantial amount of money once the funds were released. Instead, the investor funds were used for her personal expenses. Once the scheme was uncovered, the defendant was arrested and charged with wire fraud. At trial, the government introduced an e-mail message sent by a group of investors which “demanded more information about the Roberta Project and speculated that it was a fraud.... [and] complained that investor funds were ‘being used to accommodate [defendant] in a luxury hotel in central New York [C]ity’ and threatened to seek legal recourse if the authors’ concerns were not addressed.” Dupre, 462 F.3d at 137. The defendant’s response contained “messages contain[ing] religious themes or imagery” including that “the ‘Lord has told Roberta to encourage all of you and that the victory is at hand.’” Dupre, 462 F.3d at 135. The defendant offered a good faith defense. The jury convicted. On appeal, she challenged the admission of the e-mail messages from the investors as inadmissible hearsay since the investors sending the email did not testify.

The Second Circuit concluded the e-mails were properly admitted as non-hearsay “to provide context for defendants’ messages sent in response to them, messages whose admissibility is not contested.” There was no dispute that the defendant’s statements were admissible either against a party opponent, under FRE 801(d)(2)(A), or as co-conspirator statements, under FRE 801(d)(2)(E). Dupre, 462 F.3d at 137 n.7. The e-mails from the non-testifying investors were admitted as non-hearsay for three purposes:

• First, the e-mails supplied “context for defendants’ messages sent in response to them.”
• Second, the e-mail messages also “served to rebut defendants’ argument that they had no reason to know the Roberta Project was fraudulent.”
• Finally, the e-mail “messages demonstrated that defendants had received communications detailing the project’s likely bogus nature.”

The circuit also noted that the Confrontation Clause was not implicated since the e-mails were admitted for a non-hearsay purpose.

While the introduction of e-mails of non-testifying witnesses normally is subject to a hearsay challenge, the Dupre case demonstrates some circumstances in which the e-mails may be admitted for a non-hearsay purpose in a fraud case.