Second Circuit confirms that statements made by a co-conspirator to an undercover agent may be admitted without violating the Confrontation Clause where the co-conspirator “was unaware that he was speaking to agents for the government or that his statements might later be used at a trial,” in United States v. Sabir, _F.3d _ (2d Cir. Feb. 4, 2011) (Nos. 07-5531-CR CON, 07-1968-CR L)
Under what circumstances can co-conspirator statements under FRE 801(d)(2)(E) made to an undercover agent, which are obtained during an ongoing investigation, be admitted without violating the Confrontation Clause under the Sixth Amendment. The Second Circuit recently relied on a prior decision of then-Circuit Judge Sotomayor to address this issue.The case involved the prosecution of a defendant for conspiring to provide material support to a terrorist organization by promising to be "on call" in Saudi Arabia "to treat wounded members" of a terrorist organization. At trial, the government introduced recorded statements made by a co-defendant during the conspiracy to an undercover agent. The jury convicted the defendant. On appeal, he argued the admission of the co-defendant’s recorded statements violated the Confrontation Clause.
The Second Circuit rejected the constitutional argument and noted that it was largely preempted by an earlier case, United States v. Saget, 377 F.3d 223, 229 (2d Cir. 2004) (holding “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 [v. Washington]”).
As the circuit explained:
As then-Judge Sotomayor explained in writing for the Saget panel, Crawford instructs that the critical factor in identifying a Confrontation Clause concern is “the declarant’s awareness or expectation that his or her statements may later be used at a trial.” [Saget, 377 F.3d] at 228. Here, there is no question that in his conversations with Saeed and Soufan, Shah was unaware that he was speaking to agents for the government or that his statements might later be used at a trial. Because Shah’s recorded statements are thus not testimonial in nature, this case is on all fours with Saget, and Sabir’s Confrontation Clause challenge fails.See also United States v. Logan, 419 F.3d 172, 178 (2d Cir. 2005) (“In general, statements of co-conspirators in furtherance of a conspiracy are non-testimonial.”).Sabir_F.3d at _ .
For other cases reaching a similar result with regard to statements made to a person who is not known to be a confidential informant, see Defendant's Statements Were Not Subject To Confrontation Clause (Part II). The Sabir case also presented an interesting issue concerning review of juror exposure to extra-record evidence based on an Internet search. For more on this issue, see Rebutting The Presumption Of Prejudice From Juror's Google Search.
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