Federal Evidence Review

Second Circuit vacates drug conspiracy conviction based on officer's testimony regarding his directions to a co-conspirator to phone his "supplier" and about the actions taken by the co-conspirator in response which was "inadmissible prejudicial hearsay testimony," that impermissibly communicated to the jury that the co-defendant had identified the defendant as his supplier; circuit rejects the "government's claim [a]s simply not credible" that the officer's testimony provided necessary background on the investigation; in United States v. Gomez, __ F.3d __ (2d Cir. Aug. 4, 2010) (No. 08-3829-cr)

It is not often that a circuit takes the government to task on it's evidentiary arguments. A recent case in the Second Circuit provides an example of a circuit's reaction to what it considers an implausible argument on the applicability of FRE 801(c). In the case, the circuit vacated the defendant's sentence and remanded for retrial because the government had introduced at trial hearsay through the testimony of one of the investigating officers in the case.

In the case, defendant Gomez was apprehended as part of a government investigation into an Esctasy conspiracy. At trial, “[k]ey testimony … was provided by Detective Michael Ryan, who interviewed Gomez's co-conspirator, Fred Rivas, after Rivas was arrested for selling Ecstasy to a confidential informant." As part of his testimony, the detective explained that he had directed the co-conspirator to phone his supplier and that as a result the connection of the defendant to the conspiracy was discovered:

“Ryan testified that he dialed Gomez's number on Rivas's cell phone by locating Gomez's number on the phone, setting up a recording device for Rivas, then pressing the send button on the phone to make the call before passing the cell phone to Rivas. The defense objected on hearsay grounds to Ryan's testimony. In response to those objections, the district court instructed the jury that: 'the testimony that you have just heard about instructions given to Mr. Rivas and Mr. Rivas's actions in response to those instructions is not being offered to establish and is not to be considered by you as evidence that the defendant was, in fact, Mr. Rivas's supplier. Rather, the evidence is offered for the more limited purpose of explaining how it happened that Mr. Rivas made calls to the defendant.'”

Gomez, __ F.3d at __. As it turned out, the co-conspirator did not testify at trial. The detective's testimony was so vague at points that it permitted the detective “to testify, by inference, that Rivas told Ryan that Gomez supplied Rivas with Ecstasy.” This was misleading concluded the circuit and accordingly was plain and simple hearsay. Government's attempts to distinguish it were unavailing.

The Second Circuit disputed the government's effort to cast the evidence as not submitted for the truth of the matter asserted. For instance, the government argued “that the disputed testimony was admitted for a valid, non-hearsay purpose-to provide background and context for the jury-and that it therefore is not hearsay.” Gomez, __ F.3d at __. The circuit did not pick through the details of this assertion:

“The government's claim is simply not credible. Indeed, the government in both its opening statement and its summation explicitly argued the very hearsay use of the evidence which it now contends it was not offering. The bearing of Ryan's testimony on Gomez's guilt was clear and the inference that the jury would draw from it-that Gomez was Rivas's supplier in the transaction for which Rivas was arrested-was inescapable. Ryan's testimony that he (1) told Rivas to call his supplier, (2) selected Gomez's number from Rivas's cell phone address book, (3) placed the call, and (4) then handed the telephone to Rivas, clearly informed the jury that Rivas had told Ryan that Gomez was his supplier. There was no other reasonable explanation why Ryan would have selected Gomez's number from Rivas's address book.”

Gomez, __ F.3d at __ (footnote omitted).

The circuit found the violation of the hearsay rule to be “clear.” As it explained:

“here there is no ... likely non-culpatory alternative inferences to explain Ryan's selection of Gomez's number. Ryan's testimony provides background that would aid the jury in understanding why Gomez was called only if we assume that Rivas told Ryan that Gomez was his supplier, which we cannot do. If the jury inexplicably missed the obvious point of Ryan's testimony, the Assistant United States Attorney (“AUSA”) drove it home with her opening and summation.”

Gomez, __ F.3d at __.

In a footnote, the circuit expressed exasperation. It explained that it was:

“puzzled and dismayed by the government's continued maintenance of this position [that the evidence was not hearsay but was introduced for a valid non-hearsay purpose] both before the district court and in this court. It bears repeating that: 'The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'”

Gomez, __ F.3d at __, n.1 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).