In trial for conspiracy to intimidate a federal judicial officer from discharging her duties to preside in the trial of a co-defendant, no error in the prosecution's failure to call the alleged victim-judge to testify against the defendant because the Sixth Amendment Confrontation Clause does not require in a criminal case that the government "call particular witnesses" such as the alleged victim of the crime, in United States v. Beale, __ F.3d __ (8th Cir. Sept. 2, 2010) (Nos. 09-1552, 09-1556, 09-1558)
The Sixth Amendment Confrontation Clause restricts in a criminal case the admission of testimonial hearsay statements when the defendant is not afforded the opportunity to cross-examine the hearsay declarant. In a recent case, the Eighth Circuit explained that this requirement does not result in a requirement that the prosecution use a particular witness, such as the victim, to prove its case. It dismissed a defendant's claim that the failure to call the victim to testify made it impossible for the defendant to confront that witness's testimony.
In the case, the defendants were charged with conspiracy to prevent an U.S. District Judge through the use of force, intimidation or threat from discharging her duties as a judge, in violation of 18 U.S.C. § 372. In addition, the defendants were charged with obstruction of the due administration of justice, in violation of 18 U.S.C. § 1503(a). At defendants' trial, evidence was produced that the defendants each sent or received multiple e-mails or telephone communications which set out a plan to "arrest" (or more precisely, to kidnap) the district judge who was also presiding over the trial of one of the defendants (Beale). The conspirators planned to organize a crowd of some 30 or 40 persons to help effectuate the judge's arrest. The defendants trial also included evidence by the government "that the defendants had worked to obstruct justice by concocting an "arrest warrant" which they arranged to served on the judge in order to stop the trial of one defendant and to remove the judge from one of the defendant's cases. Under the conspirator's plan, the "arrest warrant" was signed by the defendants and they planned for as many as 40 other persons to assist in their plan to kidnap the U.S. district judge. On presentation of this evidence, the defendants were convicted. On appeal, one of the co-defendants argued that the trial court erred in not requiring the government call the victim-judge to testify.
The Eighth Circuit rejected this claim on appeal. It concluded that there was sufficient evidence to convict defendants of obstruction of justice and that each co-conspirator was involved in the creation, filing, or distribution of a "warrant for arrest" of the judge presiding over a co-defendant's criminal trial. The effort to create and refine the "arrest warrant ... was a joint effort designed to stop [the] trial against [a co-]defendant and remove the judge from [co-]defendant's trial, and the arrest warrant was signed by defendants, who planned to gather as many as 40 people to arrest the judge. Because of government surveillance, the evidence against the defendants was quite compelling, such as evidence that one defendant had explained to other defendants that the purpose of their action was “to get the Judge to no longer be-to work in her official position.” This defendant was asked at trial by the prosecution about the reason that he developed the various papers to be delivered to the judge. The co-defendant explained that its purpose was “[t]o intimidate [the district judge, and] ... to change her mind" regarding the trial of one of the co-defendants (Beale).
The circuit rejected the defendant's claim that the Sixth Amendment had been violated when the government did not call the victim-judge to the stand as a witness at trial. The explanation of this position was concise:
"The Sixth Amendment provides in relevant part that '[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.' Thus, '[a] witnesses's testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.'United States v. Beale, __ F.3d __ (citing Melendez-Diaz v. Massachusetts, __ U.S. __ (2009)); United States v. Mosby, 422 F.2d 72, 74 (8th Cir. 1970) (citations omitted))
"The Sixth Amendment's right to confront witness does not include a mandate requiring the government to call particular witnesses. For example, we have held: 'Absent unusual circumstances such as knowingly concealing evidence favorable to a defendant, the Government has a wide discretion with respect to the witnesses to be called to prove its case. The government is not ordinarily compelled to call all witnesses competent to testify including special agents or informers.'"
The prosecution's failure to call the victim district judge as a witness did not implicate the co-defendant's confrontation rights under the Sixth Amendment. The Eighth Circuit's Beale case is similar in some ways to a Fifth Circuit case last year involving statements of the victim in a prison stabbing case. There the circuit explained that the victim's statements in response to questions by a prison nurse about how the injuries occurred and the level of pain from them were admissible as statements made during an emergency for purposes of medical diagnosis or treatment under FRE 803(4), even if not all statements were necessary for medical treatment, and the statements were not testimonial under the Confrontation Clause when the victim did not testify at the defendant’s trial, in United States v. Santos, __ F.3d __ (5th Cir. Dec. 2, 2009) (No. 08-31225)
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