Seventh Circuit considers hearsay challenge to investigator’s testimony about steps taken to confirm the identify of a person by conducting an interviews and the results of his review without referencing what statements were given to him, in United States v. Albiola, __ F.3d __ (7th Cir. Oct. 8, 2010) (No. 08-3306)
FRE 801 defines hearsay as: (1) a statement, other than one made by the declarant while testifying at the trial or hearing, (2) offered in evidence to prove the truth of the matter asserted. Hearsay is inadmissible unless a nonhearsay purpose supports admission or a recognized hearsay exception applied. What are the boundaries in admitting testimony that refers to the fact that an interview took place and reports on the conclusion without referencing the statements made during an interview? The Seventh Circuit recently considered this issue.
In the case, a suspected packed was intercepted at an airport mail center which was determined being sent from a “David Albiola”. Upon further review of databases, there was no such person listed at the address. After obtaining a search warrant for the package, postal inspectors discovered two plastic bags determined to contain a mixture of methamphetamine. The package was delivered by an inspector, dressed as a mail carrier, with a tracking device which alerted once it was opened. After receiving the alert, law enforcement executed a search warrant at the apartment. Defendant Monico Albiola, who received the package, was prosecuted for attempting to possess with intent to distribute methamphetamines, and for knowingly and intentionally using a communication facility in the commission of a controlled substance offense. At trial, the postal inspector testified about his efforts to identify “David Albiola,” including record searches and interviews. Despite these steps, he was unable to confirm the existence. The inspector testified as follows:
Q: Were you able to determine whether David Albiola receives mail at the [Cashion, Arizona] address?
A: I was.
Q: What did you find out?
A: David Albiola does not receive mail at that address and he is not associated with that address.
Q: Did you attempt to identify David Albiola?
A: Yes, I did.
Q: How?
A: Through Internet database person search, running the name through our law enforcement computer database, using our postal inspection services databases, Accurant, and calling the post office in Cashion, Arizona.
Q: Were interviews conducted?
A: Yes, they were.
Q: Who was interviewed?
Q: Did you interview anyone?
A: The resident at that address . . . was interviewed
by Arizona inspectors.
Q: Did you interview anyone?
A: Yes, I did.
Q: Who?
A: Monico Albiola’s parents and [Antoinette’s]
parents.
Q: Were you able to identify David Albiola?
A: No, I was not.
. . . .
Q: Did you find any evidence that David Albiola exists?
A: No.
Albiola, __ F.3d at __. The defendant was convicted by the jury of both counts. On appeal, he challenged the admission of the inspector’s testimony as inadmissible hearsay.
The Seventh Circuit found no error. As the circuit explained:
This does not contain any out-of-court statement, so the prohibition against hearsay is not implicated here. [inspector] Gunther never testified about the substance of his interviews of Albiola’s and Antoinette’s parents. He only said that he had conducted the interviews as part of his investigation, and then, in reporting the findings of his investigation, said that he had not found any evidence to substantiate the existence of David or Juan Albiola. Gunther’s testimony about the results of his investigation were within his personal knowledge and are not
subject to the hearsay rule.
Albiola, __ F.3d at __ (citing United States v. Blandina, 895 F.2d 293, 301 (7th Cir. 1989) (“The results of [the agent’s] investigation . . . were within his personal knowledge, which is independent of the truth of the [declarants’] statements . . . .”)).
The Albiola case shows that where no out of court statements are offered, the hearsay rule is not implicated.
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