Proffered Admission Insufficient Alone To Lay FRE 801(d)(2)(C) Or FRE 801(d)(2)(D) Foundations

Witness testimony that the defendant made a telephone threat to his girlfriend was inadmissible hearsay; the government could not rely on the statement alone to meet its burden to establish the foundation to show that the girlfriend was making a statement as an agent of the defendant, under FRE 801(d)(2)(D), or made an authorized party statement, under FRE 801(d)(2)(C); error in admitting the statement was harmless, in United States v. Docampo, 573 F.3d 1091 (11th Cir. June 15, 2009) (No. 08-10698)

The proponent of an authorized admission or an agent admission (under FRE 801(d)(2)(C) and FRE 801(d)(2)(D) bears the burden to lay the appropriate foundation. One part of that foundation for authorized admissions or vicarious admissions under the FRE is that its declarant be shown to have been authorized by his or her principal to make the statement on the principal's behalf. In a recent case, the Eleventh Circuit demonstrated that the proof of the authorization cannot simply be lifted from the text of the statement itself. Indeed, this type of foundation is precluded by the FRE

In the case, defendant Docampo was arrested for conspiracy to possess with intent to distribute cocaine, possession of firearms in furtherance of the conspiracy, and conspiracy to possess firearms in furtherance of a drug trafficking crime. The conspirators were apprehended by a police undercover operation in which the defendant allegedly agreed with other co-conspirators to rob a cocaine "stash" house. During the defendant’s trial, prosecution witness Lorenzo “testified about a phone call Docampo made to Lorenzo's girlfriend during which Docampo told Lorenzo's girlfriend that '[e]ither bad things would happen to [Lorenzo] or somebody that [he] was close to if [he] was to testify.' " Docampo, 573 F.3d at 1095. The defense hearsay objection was overruled. The defendant was convicted and appealed, contesting the admission of the Lorenzo statement about the girlfriend’s report of threats from the defendant.

The Eleventh Circuit agreed that the trial court abused its discretion in admitting the witness’s testimony about the threatening phone. The circuit noted that the statement had come in as a mistake because the trial judge had thought that the defendant “had ‘opened up the door’” to the issue, but the parties agreed that the defendant had not invited the testimony. Docampo, 573 F.3d at 1096. The government suggested that the statement was admissible as an authorized admission under FRE 801(d)(2)(C) or an agent admission under and FRE 801(d)(2)(D). The problem on appeal was that the government could show nothing but the statement itself as proof that the statement was admissible.

The circuit made short work of the government’s argument:

“Although the Federal Rules of Evidence permit the admission of statements made by an agent of the defendant, Fed. R. Evid. 801(d)(2)(D), or statements that are authorized by the defendant, id. 801(d)(2)(C), the government did not lay a foundation that Lorenzo's girlfriend was acting as Docampo’s agent or that Docampo authorized the statement. The statements ‘are not alone sufficient to establish the declarant's authority under [Rule 801] subdivision (C) ... [or] (D).’ Fed. R. Evid. 801(d)(2). Because the testimony is hearsay and is not excepted under Rule 801, the district court abused its discretion when it admitted Lorenzo's testimony about the phone call.”
Docampo, 573 F.3d at 1097.

As the circuit noted, a 1997 amendment to the rule expressly provides: “The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).” ACN FRE 801(d).

Nonetheless, the damage to the government’s case from the error was not fatal because the circuit also concluded that while the statement was inadmissible hearsay, its admission into evidence was harmless based on other evidence of guilt in the case. Docampo, 573 F.3d at 1096-97.

Federal Rules of Evidence