Federal Evidence Review

Under FRE 804(b)(6), murder defendant forfeited the right to exclude hearsay statements of the murdered victim, even though the defendant did not directly contact the victim to quiet her; the defendant’s participation in a drug conspiracy provided the requisite knowledge and criminal intent necessary to find by a preponderance of the evidence that the defendant engaged in or acquiesced in wrongdoing which procured the unavailability of the victim in the murder case , in United States v. Stewart, 485 F.3d 666 (2d Cir. May 8, 2007) (No. 05-1989-cr)

In applying the principle of forfeiture by wrongdoing under FRE 804(b)(6), does it make any difference that defendant initially sought to prevent the witnes's testimony in a state assault trial, rather than for the trial of the victim's murder for which the defendant was also charged in federal court? The general rule is that “the forfeiture-by-wrongdoing is applicable even though the defendant sought the witness's unavailability" in a different prosecution than the one in which the defendant is currently on trial and in which the forfeiture is to be applied? The general approach seems to suggest it does not make a difference in application of the doctrine. The Second Circuit took the opportunity to clarify this issue in a case in which the defendant allegedly acted against the witness indirectly and had sought the victim's silence in a matter different from the charged murder trial.

In the case, defendant Stewart was apprehended during a narcotics trafficking investigation of a gang called the “Patio Crew.” During his trial, evidence was produced that the defendant and Dixon were members of the Patio Crew gang and controlled narcotics trafficking in part of Brooklyn, New York for over a decade. The gang distributed powder cocaine and crack cocaine and vigilantly protected its turf through threats, assaults, robberies and murder. The gang was particularly noted for its “rule” – a “code of vengeance against anyone who cooperated with law enforcement,” which typically was death.

In 1999, the defendant became aware that marijuana was being sold at one of the Crew’s locations by “Ragga” Thompson, a non-crew member. Defendant Stewart sought other members to shoot the intruder. Later that day, Ragga was shot several times, but recovered. At first, Ragga refused to reveal the identity of the assailant, but eventually he told the police and ultimately the grand jury that the defendant shot him. Immediately after the shooting, the defendant fled for Buffalo, New York where he continued to participate in Crew activities from afar. In 2000, he was arrested on drug charges in Buffalo and returned to Brooklyn to face outstanding charges related to a 1995 shooting. While he was detained, the defendant sent several messages to Ragga urging him not to identify the defendant in a lineup and not to testify against him in the 1999 shooting of Ragga.

Notwtithstanding these efforts, in March 2000, Ragga told the police that the defendant was the shooter. Soon thereafter, Ragga was contacted by Dixon who asked Ragga not to testify against the defendant. Ragga indicated he would testify. In July 2000, Dixon killed Ragga in a drive-by shooting. Both the defendant and Dixon were tried in the murder, but their trials were severed because the prosecution sought the death penalty against Dixon. At Stewart’s trial, the prosecution was permitted to introduce evidence from a police detective and other witnesses that Ragga told them that the defendant shot him. The defendant was convicted and appealed, contending admission of the witness’s statements of what Ragga told them about the shooter was hearsay and improperly admitted in violation of his Confrontation Clause rights under Crawford v. Washington, 541 U.S. 36 (2004).

The circuit affirmed the admission of the testimony about Ragga’s statements identifying the shooter in Stewart’s trial. The circuit found that the trial court correctly applied FRE 804(b)(6) which recognized the doctrine of forfeiture by wrongdoing because of “the need for a prophylactic rule to deal with [this type of] abhorrent behavior ‘which strikes at the heart of the system of justice itself.’” Stewart, 485 F.3d at 670 (quoting ACN (1997)). The rule “provides that the hearsay rule does not require the exclusion of ‘[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.’” The circuit noted that this rule could be applied once the trial court found that the opponent’s role in rendering the hearsay declarant unavailable by a preponderance of the evidence. Stewart, 485 F.3d at 670.

The defendant asserted there was a failure by the prosecution to show any evidence that the defendant “acted with the intent required” to procure the witness’ absence. Stewart, 485 F.3d at 671. The circuit rejected the defendant’s claim that the government failed to show his direct involvement in the murder, including that he “commanded or directed” the murder. The defendant’s role could be shown through circumstantial evidence. Stewart, 485 F.3d at 671 (see United States v. Villegas, 899 F.2d 1324, 1338-39 (2d Cir.) (“Both the existence of the conspiracy and a given defendant’s participation in it with the requisite criminal intent may be established through circumstantial evidence.”), cert. denied, 498 U.S. 991 (1990); United States v. Tutino, 883 F.2d 1125, 1129 (2d Cir. 1989) (finding sufficient evidence linking defendant to conspiracy to distribute heroin even though the conspirator did not explicitly indicate the defendant as his supplier, because the co-conspirator made several references to a “Sallie,” in a conversation with buyer, and jury could reasonably have concluded that conversation concerned supply of heroin, and that “Sallie” referred to the defendant), cert. denied, 493 U.S. 1081 (1990); United States v. Young, 745 F.2d 733, 762 (2d Cir. 1984) (“[T]his court has long recognized that ‘often if not generally, direct proof of a criminal conspiracy is not available and it will be disclosed only by a development and collocation of circumstances.’”) (citation omitted), cert. denied, 470 U.S. 1084 (1985)

In Stewart's case, the circuit found that there was “ample circumstantial evidence of Stewart’s involvement in Ragga’s murder, principally in the form of telephone records and testimony from Stewart confidantes.” The circuit also noted that the court correctly received testimony “before any witnesses were allowed to testify that Ragga told them he had been shot by Stewart” that Stewart had instructed Dixon and others to try to persuade Ragga not to testify that Stewart was the person who shot Ragga in July 1999. The court also heard evidence that the gang’s code was that “[i]nformer must dead,” and that both Stewart and Dixon had sent the message that if Ragga insisted on testifying against Stewart, Ragga would be shot. The circuit highlighted a number of contacts that were probative, including:

• The defendant’s cousin Tate testified that after Stewart was arrested in Buffalo, Stewart made a number of telephone calls to Tate from jail, asking him “to get in touch with Ragga’s mother ... to tell her to have [Ragga] not go to the identification line-up...” and that the cousin passed that message to Ragga’s brother and received a return call from Ragga’s mother who advised Tate not to be involved and said that Ragga would “go forward.” Tate also testified that he relayed that response to the defendant but that he was subsequently told by the defendant that he had been “ID-d by Ragga and he’s an informer and informer must die.” Stewart, 485 F.3d at 671.
• Patio Crew member Burrell, who testified about the Crew’s rule that “[i]nformers must dead” also testified that he witnessed a conversation between Dixon and Ragga’s brother Delroy about Ragga after Stewart was arrested and that Dixon said that Stewart had called him and instructed him to tell Delroy to tell Ragga that “he not supposed to go testify against him.” When Delroy did not agree to relay that message to Ragga, “[Dixon] was upset and he was walking away and said tell your brother that if you don’t listen to what we say shot will fire.” Stewart, 485 F.3d at 671.
• Dixon’s cellular telephone records and Stewart’s prison telephone records showed telephone contacts between Dixon and Stewart in the weeks leading up to the murder and on the day of the murder itself, and the defendant’s girlfriend testified about the regularity of such contacts as well. Stewart, 485 F.3d at 672.

Based on this showing, concluded the Second Circuit, “the government had established by a preponderance of the evidence that Stewart acted through Dixon to murder Ragga, and did so with the intent to prevent Ragga from testifying against Stewart, was amply supported by the record.” The circuit noted that it made no difference that “the forfeiture- by-wrongdoing principle made the testimony as to Ragga’s statements admissible at Stewart’s trial on the present federal charges even though Stewart’s efforts had been focused on preventing Ragga from testifying at … Stewart’s state trial for assault, rather than the trial in the present federal case (which had not yet been initiated).” Stewart,485 F.3d at 672. Nor was this finding unusual. The circuit pointed to several other circuits applying the same interpretation of FRE 804(b)(6), including:

• First Circuit: United States v. Houlihan, 92 F.3d 1271, 1279-80 (1st Cir. 1996) (applying forfeiture by wrongdoing doctrine when person who eventually emerges as defendant caused potential witness’ unavailability, noting that not to apply the doctrine “would serve as a prod to the unscrupulous to accelerate the timetable and murder suspected snitches sooner rather than later”)
• Second Circuit: United States v. Miller, 116 F.3d 641, 668 (2d Cir. 1997) (forfeiture by wrongdoing rule applied even where “there was [no] ongoing proceeding in which the declarant was scheduled to testify”)
• Fourth Circuit: United States v. Gray, 405 F.3d 227, 241, 242 (4th Cir.) (FRE 804(b)(6) “does not require that the declarant would otherwise be a witness at any particular trial.... A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant’s statements at that proceeding and any subsequent proceeding.”), cert. denied, 546 U.S. 912 (2005)