Federal Evidence Review

Questioning whether a victim’s statement that his “money [wa]s gone”, made six hours after disappearance of his money-filled suitcase could have been admitted at trial as an excited utterance under FRE 803(2), as not being made "under the stress of excitment"; nonetheless, the error was harmless in light of the other admissible evidence which amply showed the the defendant stole the money as charged, in United States v. Upton, 559 F.3d 3 (1st Cir. March 5, 2009) (No. 05-1593)

Sometimes the easiest route to solving a hearsay problem does not necessarily involve a direct assault on the alleged hearsay statement, for example seeing if it could fit a qualifying exception from the operation of FRE 402 (Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible). Often, evidence which does not qualify under a hearsay exception will also fail the test of admissibility on other grounds as well, such as lack of relevance or having a probative value substantially outweighed by its potential prejudicial effect. An interesting example of this observation is reflected by a First Circuit case decided in 2009.

In the case, defendant Upton was a used car dealer who was told by the victim Queen that he had $900,000 in cash in a suitcase which was an inheritance. Queen parked his car in the defendant’s lot and went to dinner. While the victim dined, the defendant removed the suitcase from the car. On his return, upon discovering the suit case missing, Queen accused the defendant of stealing it.

A month after this alleged theft, the defendant bought some property but paid for it from various "suspicious" funding sources. In addition, upon learning of the charged theft, the IRS claimed that the defendant had failed to report the theft proceeds and that the defendant had filed false reports of the income he had gained subsequent to the alleged theft.

The defendant was prosecuted for money laundering and failure to file taxes. The trial judge admitted as an excited utterance, the evidence of a statement that Queen made to a friend (Dantos) on the night of the alleged theft, “that ‘the money was gone.’” Upton, 559 F.3d at 15. The defendant was convicted and he appealed, contending in part that admission of the victim's Queen’s statement to Dantos about the money was erroneous.

The First Circuit declined to directly address whether the admission of the victim's statement violated the hearsay rule. The circuit noted that about six hours had elapsed between the time of the discovery of the missing suitcase filled with money and the victim’s doleful statement to his friend that it was gone. This alone seemed to undermine the notion that the statement was an excited one. In addition, the circuit pointed out that even if the statement had been an excited utterance, it would not be admissible as it lacked relevance.

In considering the victim’s alleged hearsay statement, the circuit concluded that the text of the statement itself:

“does not demonstrate that the money was even stolen, much less that Upton was the one who stole it. While Queen’s statement does provide support for the idea that the money disappeared from the trunk of the car during a specific time frame, it does not implicate Upton.”

Upton, 559 F.3d at 15-16.

As explained by the circuit, the excited utterance exception under:

Fed.R.Evid. 803(2) creates an exception to the rule against hearsay for “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Upton contends that because six hours elapsed between the startling event-the disappearance of the suitcase full of money-and Queen's statement to Hoell, the statement could not have been made while Queen was “under the stress of excitement” of the loss of the money."

Upton, 559 F.3d at 15-16.

But the mistake in admitting the statement did not prejudice the defendant:

"If the admission of the statement was error at all, which we needn't decide, it was harmless.... [T]he statement itself likely did little to influence the jury. Conspiracy to commit concealment money laundering involves an agreement to conceal the nature of proceeds that were unlawfully obtained. Here, in order to prove the element that the proceeds had been illegally obtained, the government had to show that Upton stole the money that he subsequently laundered. Queen's statement does not demonstrate that the money was even stolen, much less that Upton was the one who stole it. While Queen's statement does provide support for the idea that the money disappeared*16 from the trunk of the car during a specific time frame, it does not implicate Upton.

Upton, 559 F.3d at 15-16.

"If it was anything," the circuit concluded, the victim's statement was "merely icing on the cake" in that:

[T]he government presented plenty of evidence that Upton did in fact steal the money. Upton's friend Phidias Dantos testified that Queen accused Upton of stealing the money shortly after the theft occurred. More significantly, Colleen Otto testified that Alberico told her that Alberico and Upton had taken the money, and Edwin Jones testified that Upton revealed to him that he had stolen the money. Look Motors's bookkeeper, Lucy Webb, testified that Upton declined to tell her where he got the money to purchase 89 Iyanough Road, saying that he wanted to “maintain her innocence.” And the additional evidence of Upton's money laundering activities provided strong support for the inference that he and Alberico had obtained a large sum of money around the time the suitcase was stolen from Queen. If it was anything, Queen's statement was merely icing on the cake.

Upton, 559 F.3d at 15-16.

Of course the most direct approach to the situation is to hit it head-on, by examining whether it met the time and excitement required by FRE 803(2). While this is the most direct way, it is not the only way to deconstruct the problem - as concerns of relevance or undue prejudice may also be determinative. More illustrative of the usual approach is a case like Reed v. Thalacker, 198 F.3d 1058, 1061 (8th Cir. 1999) (“We have held that to determine whether a declarant was still under the stress of excitement when he or she made a statement, we may consider the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement,” finding no excited utterance when the record did not show “how much time elapsed between the alleged assaults” and the excited utterance.)