Federal Evidence Review

In prosecution for retaliating against an informant, reversing the exclusion of “an accomplice’s nontestimonial statement to a fellow inmate implicating the accomplice and” the defendant in the murder of an inmate cooperating with federal officials; remanding case for determination on which portions of the statement were admissible under FRE 804(b)(3) and which were not, in United States v. Smalls, _ F.3d _ (10th Cir. May 3, 2010) (No. 09-2126)

FRE 804(b) allows statements against interest of an unavailable declarant to be admitted as an exception to the rule excluding hearsay. As the Supreme Court has explained, “Rule 804(b)(3) is founded on the common sense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.” Williamson v. United States, 512 U.S. 594, 599 (1994). While the rationale may be readily understood, the application of the rule often turns on the particular facts of the case and had generally not been easy. The divided Tenth Circuit recently considered the admissibility of statements about a murder under the rule and the Confrontation Clause.

In the case, prison officials found a prisoner, who had been providing assistance to federal authorities concerning drug trafficking, had been strangled to death in a cell. Three prisoners were charged with offenses for retaliating against an informant, tampering with an informant, and killing an individual aiding a federal investigation. One defendant pled guilty before trial; the cases for the two remaining defendants were severed based on statements that defendant Cook had made to another confidential informant. The informant had obtained recorded statements from defendant Cook providing details about the murder. Before trial, the trial court excluded the statements in their entirety.

“[T]he context of [defendant] Mr. Cook’s statement renders it inadmissible under Federal Rule of Evidence 804(b)(3). Mr. Cook was an accomplice who was interrogated by an agent of the government [the confidential informant] while in custody, rendering his statement presumptively unreliable. Moreover, Mr. Cook attempted at various points in his statement to exculpate himself, to downplay the death as not intentional, and to shift much of the blame for the death of [prisoner] Mr. Gantz to his co-defendants. Thus, any portion of Mr. Cook’s recorded out-of-court statement that inculpates Mr. Smalls is clearly inadmissible hearsay.”

Smalls, _ F.3d at _ (quoting district court ruling). The government took an interlocutory appeal and a Tenth Circuit majority reversed, and remanded the case for the trial court to determine which portions of the recorded statement were admissible as a statement against interest (since they were sufficiently self-inculpatory) and which portions were not. The case provided the majority with an opportunity to clarify the Confrontation Clause analysis and application of FRE 804(b)(3).

Nontestimonial Statement

First, the majority determined whether the defendant’s statement was testimonial or not under Crawford v. Washington, 541 U.S. 36 (2004). If the statement was testimonial, the Confrontation Clause would likely bar its admission. As the circuit noted:

“As the district court recognized, if [defendant] Cook’s statement were testimonial this would be an easy case. Because Cook presumably will invoke his Fifth Amendment right to remain silent at Defendant Smalls’ trial and be unavailable to testify, and because Defendant Smalls has had no prior opportunity to cross-examine Cook about the latter’s hearsay statement, the Confrontation Clause would bar its admissibility.”

Smalls, _ F.3d at _. The circuit majority recognized that its precedent was “somewhat in tension” with the Supreme Court precedent concerning what constitutes a testimonial statement:

“Synthesizing Crawford and Davis, we might today formulate a definition of a testimonial statement which reads: a formal declaration made by the declarant that, when objectively considered, indicates the primary purpose for which the declaration was made was that of establishing or proving some fact potentially relevant to a criminal prosecution. Or, to better conform to the current state of Tenth Circuit precedent, we might say: A formal statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that the primary purpose of the statement was for use in the investigation or prosecution of a crime…. Fortunately, we need not now resolve the apparent tension between Davis and [United States v.] Summers, [414 F.3d 1287, 1302–03 (10th Cir. 2005)] or tender a definitive definition of “testimonial,” because Cook’s statement is nontestimonial regardless of which of the foregoing definitions we apply.”

Smalls, _ F.3d at _.

However, the accomplice’s statement about the details of murder to a fellow inmate, and apparent friend, who the accomplice did not know was a confidential informant was nontestimonial. Smalls, _ F.3d _ (citing favorably United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (Sotomayor, J.) (“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”).

Continuing Viatality Of Ohio v. Roberts To Nontestimonial Statements?

Since the statement was determined to be nontestimonial, the next issue was whether any constitutional analysis under Ohio v. Roberts, 448 U.S. 56 (1980) should apply, which was suggested by prevailing Tenth Circuit precedent. However, this earlier precedent did not square with Supreme Court case law:

“Regrettably, we have been slow to come into compliance with the Court’s controlling precedent. In United States v. Ramirez, 479 F.3d 1229 (10th Cir. 2007), a decision subsequent to both Crawford and Davis, we erroneously concluded, with nary a cite to the latter case, that district courts still should analyze the admissibility of nontestimonial hearsay statements under the pre-Crawford rubric of Roberts. Ramirez, 479 F.3d at 1247; cf. United States v. Nash, 482 F.3d 1209, 1217–20 (10th Cir. 2007) (holding the admission of out-of-court hearsay statements violated the Confrontation Clause without first addressing whether those statements constituted testimonial or nontestimonial hearsay)…. Needless to say, the Roberts standard, as applied to both testimonial and nontestimonial hearsay statements, plainly had been overruled when the district court issued its 2009 order relying on that standard to deny the admissibility of the entirety of Cook’s statement in this case.”

Since Ohio v. Roberts did not apply to the nontestimonial statement, no Confrontation Clause concerns were raised by considering the admissibility of the nontestimonial statement. The only remaining bar was whether the statement was inadmissible hearsay.

Statement Against Interest

In assessing whether a statement is sufficiently made against penal interest under FRE 804(b)(3), the Tenth Circuit majority considered whether “a reasonable person would not falsely admit to participating in [the] murder aware of the possibility, however slight, that such admission could subject him to criminal prosecution and punishment.” Smalls, _ F.3d at _.

The Tenth Circuit majority concluded that portions of the statement were sufficiently self-inculpatory and portions were not. For example, the statements concerning the “conspiracy to commit murder, an act of murder, and a motive for murder” and how the murder was committed were “plainly” self-inculpatory. However, other statements indicating who the “ring leader” was, that “there wasn’t even no plot,” and “we was just playin’ really” may be inadmissibale under FRE 804(b)(3) and “may need to be extracted from the self-inculpatory parts of the” statement. Smalls, _ F.3d at _. The case was remanded to the trial court to “first determine what parts of Cook’s extended confession are sufficiently against his penal interest” under FRE 804(b)(3), and then which portions are relevant and not unfairly prejudicial under FRE 403. Smalls, _ F.3d at _. The majority also noted an open issue concerning the standard of review: “we need not now decide whether a determination that a statement is or is not sufficiently against a declarant’s penal interest presents a question of law reviewable de novo, a question of fact reviewable for clear error, or a mixed question reviewable for an abuse of discretion.” Smalls, _ F.3d at _, n.17.

Dissent

Circuit Judge Kelly dissenting, concluding that the severance of trials did not cure any Confrontation Clause issues under United States v. Bruton, 391 U.S. 123, 137 (1968). He further believed that the statements were testimonial as the government used an agent, or confidential informant, to trick the defendant into making the statement. The dissent also felt that the statement was hearsay since FRE 804(b)(3) was not satisfied since the statement “was not purely inculpatory.” Smalls, _ F.3d at _.

In a footnote, the majority responded that: “[t]he dissent’s analysis of this case misstates the law and warrants little response. Suffice to say that as inferior federal court judges we are not at liberty to decide cases on the basis of what we think the law should be. Rather, we are bound to decide cases on the basis of what the law is.” Smalls, _ F.3d at _ n.20.

The Smalls case provides a useful analytical framework in addressing the constitutional and hearsay issues concerning the admissibility of a statement against interest under FRE 804(b)(3). The case also highlights the continuing evolution of the Confrontation Clause analysis in the wake of the 2004 Crawford decision, which recognized that the contours of its analysis in general, and definition of testimonial statements in particular, would be left for another day.