In drug conspiracy, admission of recorded conversations of one defendant with a confidential informant were not barred by Crawford and the Confrontation Clause; the defendant's recorded statements were admissions of a party-opponent; the confidential informant's recorded statements were admitted to provide context of the defendant's statements and were not hearsay, in United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006)
A Seventh Circuit case considered the application of the Confrontation Clause under the Sixth Amendment in the context of recorded statements. The defendants were prosecuted for conspiring to obtain crack cocaine in St. Louis and distributing it in DuQuoin, Illinois. At trial, the government played recorded conversations involving defendant Dunklin with confidential informant Shye during the informant's controlled purchase from the defendant. The informant did not testify. Defendant Dunklin did not object to the admission of the recorded conversations at trial. The defendants were convicted. On appeal, for the first time, they argued the recorded statements violated the Confrontation Clause.
The Seventh Circuit affirmed the admission of the recorded conversations. The issue was reviewed for plain error since no objection was raised at trial. The circuit considered separately the statements of the defendant and those of the confidential informant on the tape. The defendant's statements did not violate the Confrontation Clause. The defendant's statements, introduced as admissions by a party opponent under FRE 801(d)(2)(A), were not hearsay. Tolliver, 454 F.3d at 665 (citing United States v. Spiller, 261 F.3d 683, 690 (7th Cir. 2001) (based on evidence that the defendant "wrote the ledgers and that they were kept in his own bedroom, where he also kept crack equipment and proceeds" the statements of a party "offered against him are considered admissions by a party-opponent, and, as such, are not hearsay and are admissible under Fed. R. Evid. 801(d) (2)(A)"); United States v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005) (Crawford was inapplicable to co-conspirator statements under FRE 801(d)(2)(E))).
The circuit also noted the defendant's statements to a confidential informant were not testimonial since he "did not make his statements here with any expectation that they would be used against him in a criminal trial." Tolliver, 454 F.3d at 665 (citing Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 2275 (statements made "unwittingly" to a government informant are "clearly nontestimonial") (citing Bourjaily v. United States, 483 U.S. 171, 181-84 (1987))); United States v. Hendricks, 395 F.3d 173, 181, 183-84 (3d Cir. 2005) ("Crawford presents no bar to the admission of the statements of Defendants or their coconspirators made in the conversations with C[onfidential] I[nformant] Rivera that he surreptitiously recorded."); United States v. Saget, 377 F.3d 223, 229-30 (2d Cir. 2004) ("we conclude that a declarant's statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony within the meaning of Crawford")).
Second, the circuit noted that Crawford applied to hearsay but not nonhearsay. The statements of the confidential informant were offered to show the context of the defendant's statements and were not hearsay. Tolliver, 454 F.3d at 666 (citing United States v. Gajo, 290 F.3d 922, 930 (7th Cir. 2002) (statements were admitted to "provide context to a coconspirator's statements properly admitted under Rule 801" and were "not hearsay to the extent they are offered for context and not for the truth of the truth of the matter asserted"). No plain error was shown by admitting the recorded conversations.
The Tolliver case highlights how two evidence issues were addressed. First, the admission of the defendant's statements did not implicate the Confrontation Clause. Second, the statements of others surrounding the defendant's statement also did not raise Confrontation Clause issues because these statements were introduced for a non-hearsay purpose.
For another recent post addressing a similar Confrontation Clause issue, see Part I.
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