Federal Evidence Review

In a drug conspiracy trial, the FBI agent’s testimony noting reports from informants that led authorities to follow and ultimately arrest the defendant did not violate defendant’s Confrontation Clause rights; even though the informant’s statements were testimonial and the informant did not testify, his statements were not offered for the hearsay purpose of proving a truth at the heart of the prosecution case, but rather to explain the background of the investigation and actions taken by authorities; there was no plain error in the case, in United States v. Deitz, 577 F.3d 672 (6th Cir. Aug. 20, 2009) (No. 05-3410)

Generally, informant statements provided to law enforcement are deemed to be “testimonial” under the Confrontation Clause. Can an informant testimony supply background in the case without violating the Confrontation Clause? This issue was recently explored by the Sixth Circuit.

In the case, defendant Deitz, a member of the Outlaw Motorcycle Club (OMC), was charged for his role in a drug conspiracy associated with the OMC. The indictment was part of a large-scale investigation into motorcycle clubs in Ohio that resulted in the charging of 37 other defendants, all members or associates of the OMC.

The defendant was charged with conspiracy to possess and distribute methamphetamine. At trial, “numerous government witnesses testified as to Deitz’s involvement in the narcotics and firearms conspiracy, specifically describing incidents where Deitz sold methamphetamine, marijuana, and other drugs, and noting Deitz’s participation in a drive-by shooting of a rival motorcycle gang’s Indiana ‘clubhouse.’” An FBI Agent also testified that “[i]n 1991, acting on a tip from a confidential informant that Deitz would be transporting drugs from the Dayton [OMC] clubhouse, officers stopped Deitz while he was driving back from Dayton to Kentucky. A warranted search of Deitz’s car revealed approximately 195 grams of cocaine in a bag on the floor of the back seat.” Deitz, 577 F.3d at 677.

The jury convicted the defendant on the narcotics conspiracy charges and he appealed, contending that his Sixth Amendment Confrontation Clause rights had been violated by the admission of the agent testimony that “that the FBI was surveilling Deitz, because it had received tips from informants that Outlaws from the Louisville [Kentucky] chapter regularly obtained cocaine from members of the Dayton [Ohio] chapter and transported it back to Kentucky, was inadmissible because it was based on hearsay relayed to [FBI] Agent Potts by a confidential informant.” Deitz, 577 F.3d at 682.

Because the defendant had failed to object to this specific testimony “about why authorities were following and surveilling Deitz on his trip to Dayton” during the trial, the circuit reviewed the matter for plain error. It affirmed the admission of the agent’s testimony recounting the report of the informant and the action that authorities took in response.

The circuit’s analysis of the alleged Confrontation Clause violation articulated a two-part test that would apply: the “statement [1] must be testimonial in nature, and [2] must be hearsay.” Deitz, 577 F.3d at 683 (citing United States v. Gibbs, 506 F.3d 479, 486-87) (6th Cir. 2007) (no Crawford violation because the challenged testimony “[d]id not bear on” any element of the charges against defendant, and “a review of the record reveals that [the purportedly hearsay aspect of the testimony] was a miniscule part of [the witness’s] overall testimony”))). The circuit then transformed this test into a much more short-circuited one that was more specific to the defendant’s situation:

“We have held that statements by a confidential informant are ‘testimonial’ and thus, subject to the Confrontation Clause. However, we have also clarified that ‘[t]he Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”‘”

Deitz, __ F.3d at __ (citing United States v. Cromer, 389 F.3d 662, 673-74, 675-76 (6th Cir. 2004) (Police officer’s testimony that a confidential informant, not called as a witness at trial, indicated that drug sales had been made from a particular residence and that an individual resembling the defendant had been involved in the drug transactions was admissible to the extent that it merely “alluded to” the confidential informant’s statements for the background purposes of “explaining how certain events came to pass or why the officers took the actions they did” in searching the residence identified by the informant.) (quoting Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004))).

The application of the circuit’s tests in the defendant’s case was rather straight-forward:

“The admission of [FBI] Agent Potts’s testimony explaining why authorities were following Deitz on his drive to and from Dayton was not plain error as it provided mere background information, not facts going to the ‘very heart of the prosecutor’s case.’ In fact, it was not the informant’s statements that were material, but rather, Potts’s own statement about what he found when he stopped Deitz, which was not hearsay. Moreover, had defense counsel objected to the testimony at trial, the court could have easily restricted its scope. Therefore, Deitz’s Confrontation Clause claim is without merit.”

Deitz, 577 F.3d at 684 (citing United States v. Hunt, 278 F. App’x 491, 495 (6th Cir. 2008) (court limited the scope of government witnesses’s testimony to ensure that the tip was mentioned strictly for background information)).

For a prior blog post regarding this case involving another defendant in the organization, see “‘Bragging’ Co-Conspirator Statements Not In Furtherance Of The Charged Conspiracy.”