In political corruption trial, an agent’s trial narrative, which was not based on any personal knowledge, concerning the investigation and how wiretap approval was provided by high ranking officials and the court was inadmissible hearsay and contrary to the Confrontation Clause; reversal was not mandated since the error did not rise to the level of plain error, in United States v. McGee, 612 F.3d 627 (7th Cir. July 20, 2010) (No. 08-3816)
A case agent may be used to establish background concerning the investigation. However, there are limits. The agent should have personal knowledge about the investigation and should avoid the use of hearsay. A recent Seventh Circuit case noted these concerns.
In the case, the defendant, who was elected to the Milwaukee Common Council, was prosecuted for using his position to demand business payments for liquor licenses and other permits. On the first day of the political corruption trial, an FBI agent provided a background narrative about the preliminary investigation leading to wiretap court orders. In particular:
An FBI agent told the jury that to obtain a warrant for a wiretap the prosecutor had to establish, to a judge’s satisfaction, that the telephone was being used to commit a crime. This agent recounted what a preliminary investigation had revealed and why the United States Attorney and highranking officials at the Department of Justice thought it enough to support audio interception of McGee’s phone calls. Then the agent explained that District Judge Adelman, who issued the warrant for the interception, agreed with this conclusion. The warrant, which recites some of this evidence (and the judge’s conclusion), was introduced into evidence.
McGee, 612 F.3d at 630. The defense did not object to this trial testimony. After the jury convicted the defendant, on appeal for the first time, he challenged the admission of the agent’s narrative hearsay testimony.
The Seventh Circuit strongly criticized the government and trial court for allowing the hearsay evidence to be presented to the jury. As the circuit noted:
Before the trial was two hours old, the essence of the prosecutor’s case had been laid before the jury. And not a word of this evidence was from a witness with first-hand knowledge or subject to cross-examination. The process violated both the confrontation clause of the sixth amendment and the hearsay rule.
McGee, 612 F.3d at 630.
The circuit found the government’s purpose to establish a foundation for the wiretap evidence to be unavailing as “[t]here was no need to put hearsay before the jury in order to make the intercepted conversations admissible.” McGee, 612 F.3d at 630.
The circuit was critical of each of the trial actors in the proceeding:
The prosecutor should have known that he was eliciting inadmissible testimony. The judge should have known it too, yet did nothing. And defense counsel likewise must have understood that the testimony was out of bounds—yet he did not object. It is unlikely that counsel was asleep; the hearsay rule is second nature to any trial lawyer. Perhaps he viewed the prosecutor’s misstep as a godsend. Evidence of McGee’s financial exactions was going to come in from the victims, who had personal knowledge, and their testimony would be bolstered by recordings from wiretaps plus hidden microphones and cameras. The main thing the hearsay did was create an issue for appeal. A lawyer who knows that the evidence is solidly against his client may see strategic value in allowing error to occur, despite the fact that the plain-error standard will make it hard to upset the verdict on appeal.
…
Although McGee is not entitled to a new trial, we are dismayed by the prosecutor’s conduct and disappointed by the district judge’s failure to intervene. The extensive hearsay did not slip in by accident, in the heat of the moment; the prosecutor must have carefully planned this line of testimony. The proper way to introduce jurors to forthcoming wiretap evidence ought to be featured in the United States Attorney’s Manual. The United States has not attempted to defend the propriety of the prosecutor’s tactics. Waiver and the plain-error doctrine may insulate judgments from reversal, but recurrence of an episode such as this may lead to the opening of a disciplinary proceeding for the lawyers involved.
McGee, 612 F.3d at 632.
Despite the criticism, the error did not rise to the level of plain error since the defendant had not met his burden to show his “substantial rights” were affected. McGee, 612 F.3d at 631 (citing United States v. Marcus, 130 S. Ct. 2159 (2010)). In particular, the points presented in the challenged narrative were established by other evidence. The evidence of guilt was “overwhelming.”
The McGee decision joins other recent circuit decisions which have expressed caution against using hearsay testimony to provide case background. See, e.g., Tenth Circuit Notes “Abuse” Of “Background” Evidence As Non-Hearsay; Taxing Use Of Non-Hearsay Background Testimony Non-Hearsay Background Evidence Concerning Investigation Was Inadmissible; First Circuit Once Again Criticizes The Use Of Law Enforcement “Overview” Testimony.
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