More On Rendering Otherwise Inadmissible Evidence Admissible Under FRE 106

In retrial of interstate kidnapping resulting in death case, trial court did not err under FRE 106 Rule of Completeness in excluding self-serving exculpatory statements of the defendant or hearsay statements by his attorney in a recorded jailhouse phone call, parts of which had been offered by the prosecution regarding the defendant’s plan to kill certain witnesses, because FRE 106 does not render otherwise inadmissible evidence admissible, in United States v. Lentz, 524 F.3d 501 (4th Cir. May 12, 2008) (No. 06-4691)

Yesterday, the Federal Evidence Blog explored the First Circuit casse of United States v. Bucci 525 F.3d 116 (1st Cir. May 13, 2008) regarding whether FRE 106 provides an independent ground for admission of otherwise inadmissible evidence. In Bucci, the First Circuit found that this was an issue of some disagreement among the circuits. At least in the First Circuit, FRE 106 could provide an independent ground for admission of otherwise inadmissible evidence, such as hearsay. However,Bucci did not trace the way in which the circuits have split on this issue. In today's blog entry, we examine a case that reached different results and describes some of the configuation of the circuits on the issue. This Fourth Circuit case was determined at about the same time as Bucci, and like Bucci failed to detail the precise scope of circuit disagreement.

In the case, defendant Lentz appealed a verdict of guilty in his retrial for an interstate kidnapping which resulted in the death of his former wife during a messy and acrimonious divorce. Lentz, 524 F.3d at 510. The defendant's appeal challenged his conviction on multiple grounds, among them that the trial judge erred in admitting a redacted tape the prosecutor offered of the defendant’s jailhouse call to his attorney to discuss the defendant’s murder-for-hire plan that would eliminate several witnesses in the retrial. This conversation was not covered by the attorney-client privilege because it qualified under the crime-fraud exception. Lentz, 524 F.3d at 522-23. The trial judge had found that the defendant conducted the call for the purpose of finding out about whether he could depend on a particular inmate to set up his plan to murder a prosecution witnesses. After failing at excluding this tape, the defendant sought to require the prosecutor to introduce the entire tape, not simply the redacted version. Lentz, 524 F.3d at 525.

The Fourth Circuit affirmed the trial court’s determination to admit only the redacted tape and not require the full tape of the phone call. Lentz, 524 F.3d at 526. The circuit noted that the trial court found that the tapes provided “various self-serving exculpatory statements made by Lentz to [defense attorney] Salvato during the conversation as well as various hearsay statements made by Salvato which were unnecessary to place Lentz’s comments in perspective.” Lentz, 524 F.3d at 526.

The circuit considered the portion that was excluded from the admitted tapes not admissible because it was hearsay. As a result, it could not be admitted under FRE 106. That rule would not “render admissible the evidence which is otherwise inadmissible under the hearsay rules.” Lentz, 524 F.3d at 526 (quoting United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996)). This was particularly so when all that would be added back into the redacted material were self-serving and exculpatory statements made by a party. Lentz, 524 F.3d at 526 (citing United States v. Bollin, 264 F.3d 391, 414 (4th Cir. 2001) (“The fact that some of the omitted testimony arguably was exculpatory does not, without more, make it admissible under the rule of completeness.”)).

The Fourth Circuit in Lentz did not address the position other circuits had taken on the rule of completeness. The First Circuit position on FRE 106 seems similar to that taken by other circuits, such as the

  • Seventh Circuit: United States v. Baron, 602 F.2d 1248, 1252 (7th Cir. 1979) (admitting under FRE 106 a memo written by the accuser in the criminal case shortly after each alleged bribery payment to the defendant was planned because the defendant was trying to impeach the accuser through his own prior supposedly inconsistent statements in the memo; although on cross-examination some of the discrepancies were developed, these portions went to details and much of the memo was consistent with accuser’s testimony, so that it would have been unfair and extremely confusing to jury to exclude the memo)
  • D.C. Circuit: United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986) (“Rule 106 can adequately fulfill its function only by permitting the admission of otherwise inadmissible evidence when the court finds in fairness that the proffered evidence should be considered contemporaneously.”)

The position staked out by the First Circuit and shared with the Seventh and D.C. Circuits differed from that taken by other circuits in the last twenty of thirty years -- not only by the Fourth Circuit. The Fourth circuit, along with the following circuits suggest FRE 106 is much narrower in application: Second, that would not find an independent ground for admitting, such as

  • Second Circuit: United States v. Guevara, 277 F.3d 111, 127 (2d Cir. 2001) (In drug case, after the government offered testimony by a law enforcement agent who described phone calls with the defendant as revealing that the defendant while pretending to be cooperating with government was actually “trying to tip off” the other party on the phone call, the trial court did not err in excluding the statements by the other party regarding delivery of the drugs to the defendant as he was not the person for whom the drugs were intended to be delivered and because the statement failed to qualify under any hearsay exception), amended on reh’g, 298 F.3d 124 (2d Cir. 2002)
  • Sixth Circuit: United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982) (“The rule covers an order of proof problem; it is not designed to make something admissible that should be excluded.”)
  • Eighth Circuit: United States v. Ramos-Caraballo, 375 F.3d 797, 803 (8th Cir. 2004) (in intent to distribute cocaine prosecution, trial court erred in admitting arresting officer’s grand jury and other pre-trial testimony in attempt to show that allegation that he was inconsistent took the statements out of context, but the error was harmless because it was cumulative)
  • Ninth Circuit: United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir. 1981) (no error in excluding additional testimony offered under FRE 106 in part because it was “inadmissible hearsay”)
  • Tenth Circuit: Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1088 (10th Cir. 2001) (“the rule does not allow a party to introduce otherwise inadmissible hearsay on the coattails of its own or stipulated exhibits”)

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