Confrontation Clause Error Vacates Conviction, Rejecting Claim Testimony Was Offered For A Non-Hearsay Purpose

First Circuit vacates and remands conviction based on Confrontation Clause violation under Crawford; during the investigating agent’s trial testimony, details were elicited about the statements made by the defendant's non-testifying accomplices (who confessed and pled out before trial) which described the defendant’s role in the crime, provided no insight into the course of the investigation and was used by the prosecution as proof of the matters asserted by the non-testifying accomplices, in United States v. Cabrera-Rivera, 583 F.3d 26 (1st Cir. Sept. 25, 2009) (No. 08-1702)

One recurring Crawford issue concerns the use of a case agent’s or cooperating witness’s testimony about a statement that is not used to prove the truth of the matters asserted, but rather to provide a context for understanding the police’s investigation. The Sixth Amendment does not bar out-of-court statements that are not offered to prove the truth of the matter asserted. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”). A recent case by the First Circuit emphasized that use of the challenged statement to provide context is not mere window-dressing or magic-words that blunt the application of a defendant’s Confrontation Clause rights.

In the case, defendant Cabrera-Rivera had been charged with two other accomplices (Cruz-Marrero and Baez-Rodriguez) with robbing an armored truck collecting cash deposits from businesses. Prior to trial, the two accomplices pled guilty. In the trial of the remaining defendant Cabrera-Rivera the prosecution introduced FBI agent Torres’s testimony about “the out-of-court confessions of” the two accomplices during an interview with the agent after the robbery. As recounted by the circuit, the prosecutor’s presentation of the testimony of accomplice Baez-Rodriguez was as follows:

Prosecutor:: Sir, at the time [co-operating witness] Elias [Cruz-Marrero] was arrested, was he advised of his rights?
The witness:: Immediately after, yes, sir.
Defense counsel:: Your Honor, we may have a Bruton objection.
Prosecutor:: What action did you take? First of all, did Mr. Elias admit to his participation in the robbery?
Defense counsel:: Objection, Your Honor.
THE COURT:: Overruled. He can tell us that.
The witness:: Yes, he did.

Cabrera-Rivera, 583 F.3d at 30 (prosecutor’s name omitted).

After this exchange, the court tried to focus on the investigator’s response to the information provided by the cooperator; the prosecutor then renewed the questioning:

THE COURT:: Okay. So Elias said he confessed before you basically.
The witness:: Yes, sir.
THE COURT:: And I bet he gave you some additional information. He wants to know, without giving the specifics, what is it you do as a result of the other information he gives you.
The witness:: We located the house of the second individual that was involved in the robbery. And, as a result of that information and information alone, we were able to obtain a search warrant and arrest warrant for the second individual, which was arrested on the same day hours after Elias had been arrested by us.
Prosecutor:: And who was that second individual?
The witness:: Jonathan Baez Rodriguez.
Prosecutor:: Sir, what other location, if any, did you go to obtain evidence pursuant to this interview with Elias Cruz-Marrero?
The witness:: We went to Las Villas Motel in Levittown area I believe. Either Levittown or the town adjacent to that. And we were able to retrieve a log that ... the motel personnel prepared on a daily basis that shows a car with the description that matched the same car Elias has provided in interrogation entering the motel minutes after the robbery had taken place.
Prosecutor:: Now, this information about the motel, did you take that information from Elias Cruz?
The witness:: Yes, sir.
Prosecutor:: Now, of course ... Elias Cruz-Marrero spoke to you. Did he admit his participation in the robbery?
The witness:: Completely, yes, sir.
Prosecutor:: And pursuant to that admission of his participation, did he- what else did he admit as to the part of the robbery? Did he receive a part of the robbery?
Defense counsel:: Objection, Your Honor.
Prosecutor:: What amount of money did Mr. Elias Cruz-Marrero receive as his participation in the robbery?
The witness:: 11 hundred dollars, sir.

Cabrera-Rivera, 583 F.3d at 31 (prosecutor’s name omitted).

In addition, the prosecutor also offered testimony by “another agent” about his interrogation of accomplice Baez-Rodriguez:

Prosecutor:: Did he agree to waive his rights and give you a statement?
The witness:: Yes, he did, sir.
Prosecutor:: Now, please pay attention to the question I'm going to ask you right now. Did he admit to participating in the robbery at Taco Bell on the 26th of July, 2006?
Defense counsel:: Objection, Your Honor.
THE COURT:: Overruled.
Defense counsel:: Mr. Jonathan Baez is not here to-
THE COURT:: It doesn't matter. Whether he admitted or not, that's all.
The witness:: Yes, he did, sir.
Prosecutor:
The witness:: Yes, he did, sir.
Prosecutor:
The witness:: $300, sir.

Cabrera-Rivera, 583 F.3d at 31 (prosecutor’s name omitted).

After the defendant was convicted, on appeal he claimed the foregoing trial testimony violated his Confrontation Clause rights under Crawford by admitting testimonial hearsay by out-of-court declarants which the defendant did not have an opportunity to cross-examine. The government contended there was no error because the statements of the two cooperating witnesses (through the agents testimony) were not hearsay since the statements were not admitted to prove the truth of the matter asserted, “but rather to put the investigation into context.” Cabrera-Rivera, 583 F.3d at 33. While acknowledging that a non-hearsay purpose would remove the Confrontation Clause issue in general, in the defendant’s case the circuit noted “the testimonial out-of-court statements at issue here were offered and used for the truth of the matters asserted” making their admission was improper.

First, the circuit noted that testimony admitted focused “on Cabrera-Rivera's co-participants' admissions of guilt [and so] directly suggested that Cabrera-Rivera was guilty as well”:

“[T]he out-of-court statements were used to emphasize the guilt of Cabrera-Rivera's alleged accomplices, rather than to provide context for the discovery of other admissible evidence. A central contention of the government's case was that three men were involved in the robbery; the jury was aware that Cruz-Marrero and Baez-Rodriguez were named with Cabrera-Rivera in the indictment. The jury had additional knowledge that Baez-Rodriguez was previously Cabrera-Rivera's co-defendant, as jury selection proceeded with both men to be tried jointly. In opening statements, the government referred to Cruz-Marrero and Baez-Rodriguez as Cabrera-Rivera's ‘co-defendants.’ The emphasis on Cabrera-Rivera's co-participants' admissions of guilt directly suggested that Cabrera-Rivera was guilty as well.”

Cabrera-Rivera, 583 F.3d at 34.

Second, the circuit suggested that this testimony was milked by the prosecution for all sorts of details not relevant to the course of the investigation and therefore was not admissible:

“[T]he government's context theory with respect to investigative leads has no relationship to the testimony concerning Baez-Rodriguez's confession; the government did not contend that Baez-Rodriguez provided any investigative leads. The government points out that Cruz-Marrero was the source of investigative leads, but the government fails to show why the details as to Cruz-Marrero's confession were necessary to explain the investigative source…. In any event, the government's supposedly benign purpose for introducing evidence of Cruz-Marrero's out-of-court statements is belied by the use that the government made of those statements in closing argument. The government used Cruz-Marrero's statements concerning the motel to argue that one of the admitted robbers, Cruz-Marrero, within minutes of the robbery had driven to a motel in Cabrera-Rivera's white Acura with Cabrera-Rivera. While the government had independent evidence establishing that the Acura had been driven to the motel shortly after the robbery by two men, Cruz-Marrero's out-of-court statements were the sole basis for the government's argument that the two men were Cruz-Marrero and Cabrera-Rivera.”

Cabrera-Rivera, 583 F.3d at 35.

The circuit also rejected the government argument that the defendant had waived a Crawford objection because defense counsel only raised a Bruton objection. The circuit explained the testimony was not a Bruton error because at the time the evidence was admitted, the defendant was not in a joint trial. However, the essence of the Bruton objection was the defendant’s inability to confront the declarant – when “taken in the context of the facts of the case … we think the better reading of that [Bruton] objection is that it was in fact a short-hand reference to an objection on confrontation grounds.” Cabrera-Rivera, 583 F.3d at 36. Nor was the error harmless beyond a reasonable doubt because testimony about “the Cruz-Marrero and Baez-Rodriguez confessions supplied information not available from other witnesses” and was not merely cumulative.

As Cabrera-Rivera suggests, testimonial statements concerning the context of the police investigation do not violate Crawford . This is a finding readily reached by other circuits as well. See, e.g., United States v. Nettles, 476 F.3d 508, 517 (7th Cir. 2007) (When statements are “merely offered to show context, they are not being offered for the truth of the matter asserted, and therefore, Crawford does not require confrontation.”) (emphasis added); United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006) (Defendant's right to confrontation was violated when the prosecution introduced audio-tapes of conversations between the defendant and a confidential informant who did not testify because the informant's “statements were admissible to put [the defendant]'s admissions on the tapes into context, making the admissions intelligible for the jury.”). This doctrine predates Crawford . See United States v. Richmann, 860 F.2d 837, 840 (8th Cir. 1988) (“testimony of Sergeant Baltzer concerning the reason he discontinued his use of Richmann as a confidential informant” did not violate the defendant’s confrontation rights because it was admitted to show agent's state of mind at time agent decided not to use defendant as informant and to show the agent's activities within context of entire drug investigation). However, as the First Circuit emphasized, it is essential that the trial court ensure that when such statements are admitted for non-hearsay “context,” that is indeed the purpose served by the testimony at trial.

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