First Circuit Joins Consensus On "Non-Testimonial" Statements From One Inmate To Another

First Circuit resolves open issue of whether testimony about statements made by one inmate (the declarant) to another (the witness) are “clearly nontestimonial” so that admission of such testimony in a defendant's marijuana importation conspiracy trial was not error; noting this holding was consistent with Supreme Court dicta and with decisions by other circuits, in United States v. Pelletier, 666 F.3d 1 (1st Cir. Dec. 1, 2011) (No. 08–1167)

In September 2004, the Federal Evidence Review published an early analysis of the impact of Crawford v. Washington, 541 U.S. 36 (2004) (“Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”). The essay noted a fair number of issues that Crawford left open and that this was deliberate. The Court left “for another day any effort to spell out" the bounds of its determination of the application of the Confrontation Clause, explicitly recognizing that “our refusal to articulate a comprehensive definition in this case will cause interim uncertainty.” In the aftermath of Crawford, the appellate courts -- state and federal -- have been grappling with the uncertainty the case developed in this important constitutional area.

As another Crawford-related case comes before the Supreme Court next week, the appellate courts are still dealing with open questions left in Crawford's wake. Recently, the First Circuit resolved an open issue regarding whether inmate-to-inmate conversations were testimonial, so that a witness's testimony about the declarant's statement must be excluded under the Confrontation Clause. The Circuit also noted that other circuits had addressed this issue and their positions were consistent with that the First Circuit would take in the Pelletier appeal.

In the case, defendant Pelletier was charged in a drug conspiracy. The most dramatic aspect of his modus operandi was to have a co-conspirator swim across the U.S. - Canada border "most often carrying the contraband in two, thirty-pound, watertight duffel bags, although occasionally ferrying larger amounts," which the defendant arranged for sale.

The defendant was convicted at his trial for conspiring to distribute marijuana and related offenses. In part, this trial involved testimony by an associate of the defendant [Hafford] who testified that a member of the charged conspiracy [Easler, another participant]:

told him that he was in jail for drug trafficking; that he had been smuggling marijuana for Pelletier by swimming across the St. John River with sixty pounds of marijuana beginning in “springtime” and ending when “there was ice in the water”; and that he had stolen $110,000 from Pelletier.
Pelletier, 666 F.3d at 7. This testimony about declarant Easler's comments was hearsay. The declarant did not appear at trial. The trial court found admitted the evidence "as an exception to the hearsay prohibition pertaining to statements against interest" under FRE 804(b)(3).

The defendant appealed his conviction to the First Circuit. Among his challenges was that the admission of the testimony violated his right to Confrontation, as the declarant (Easler) did not testify at trial, and so the witness's account of what he was told. The circuit rejected the defense contentions:

The testimony about Easler's statements during inmate-to-inmate conversation was subject to cross-examination in court. The evidence was not contained in ex parte in-court testimony or an affidavit. The “primary purpose” of the statements was not the establishing or proving of some fact at trial.

Although we have not previously had occasion to apply Davis [v. Washington] to the situation presented here—statements made by one inmate to another—we have little difficulty holding that such statements are not testimonial.
Pelletier, 666 F.3d at 9 (citing Bullcoming v. New Mexico, 564 U.S. , (2011) (slip op., at 9); id. (Sotomayor, J., concurring, at 1); Michigan v. Bryant, 562 U.S. , (2011) (slip op., at 11)).

The circuit found remarkable agreement on this issue, citing other circuits, including:

  • Fourth Circuit: United States v. Smith, 383 F. App'x 355, 357 (4th Cir. 2010) (unpublished) (Co-defendant's out-of-court statement properly admitted because it did not violate defendant's Sixth Amendment right to confront witnesses in drug conspiracy trial, because his statement was non-testimonial)
  • Sixth Circuit: United States v. Johnson, 581 F.3d 320, 323–24 (6th Cir. 2009) (defendant implicated by co-conspirator statement to fellow inmate)
  • Eighth Circuit: United States v. Johnson, 495 F.3d 951, 976 (8th Cir. 2007) ("Honken's remarks fall safely outside the scope of testimonial hearsay. Honken was not making “formal statement[s].” Nor were his statements elicited in response to government interrogation whose primary purpose was to establish facts potentially relevant to a criminal prosecution.")
  • Tenth Circuit: United States v. Smalls, 605 F.3d 765, 776–80 (10th Cir. 2010) (statement made by co-conspirator to fellow inmate implicating defendant was nontestimonial)
  • Eleventh Circuit: United States v. Johnson, 192 App'x 935, 938 (11th Cir. 2006) (unpublished) (Inmate statements were not testimonial in nature and were admissible through inmate's testimony over a Confrontation Clause objection).

The First Circuit joined these other circuits, reasoning:

Moreover, Easler's jailhouse statements to Hafford bear none of the characteristics of testimonial hearsay. They were made not under formal circumstances, but rather to a fellow inmate with a shared history, under circumstances that did not portend their use at trial against Pelletier. Accordingly, we conclude that the Confrontation Clause was not implicated by the admission of Hafford's testimony."
Pelletier, 666 F.3d at 10 (citing Davis, 547 U.S. at 824 (“An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (quoting Crawford, 541 U.S. at 51)); United States v. Brito, 427 F.3d 53, 60 (1st Cir. 2004) (describing testimonial statements as those that a declarant would reasonably understand will be preserved for prosecutorial use); Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (finding statements non-testimonial where they were part of a private conversation with a non-police officer).


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