Pinkerton Liability And Forfeiture By Wrongdoing

Because informant's murder was carried out by defendant's co-conspirators in furtherance of the drug-trafficking conspiracy and was reasonably foreseeable by defendant, admitting in defendant's conspiracy to distribute narcotics trial the murdered government informant's statements linking the defendant to the drug-trafficking organization under the FRE 804(b)(6) forfeiture-by-wrongdoing exception, in United States v. Dinkins, 691 F.3d 358 (4th Cir. Aug. 14, 2012) (Nos. 09-4668, 09-4669, 09-4755)

Earlier in the week, the Federal Evidence Blog assessed the use of an anonymous jury in the Fourth Circuit case of Dinkins. In addition to its unusual jury trial practice, the case presents one of the few recent examples of the application of the forfeiture by wrongdoing exception to the hearsay rule. The Fourth Circuit clarified the application of the Pinkerton co-conspirator liability principle to the operation of the hearsay exception. The Pinkerton principle embraced by the circuit was that "a person is 'liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy.'” Dinkins, 691 F.3d at 384 (citing United States v. Ashley, 606 F.3d 135, 142–43 (4th Cir. 2010)).

In the case, several defendants, but not all, were charged with capital crimes, in the murder of government witnesses (Dowery). At trial, the government secured introduction of a hearsay statement in which "Dowery had identified Dinkins from a photo array as one of the men who had shot him," in an earlier murder attempt. The defendant's objection to the evidence was not only that it was hearsay, but that "by the time that Dowery was killed ... Dinkins had been in jail for about a year, and no evidence was presented to show that he participated in the murder." Dinkins, 691 F.3d at 384.

The Fourth Circuit affirmed the defendant's conviction and found no error in the admission of the hearsay statement. The circuit noted that the defendant's case presented it with an open question:

We have not yet considered the question whether hearsay statements may be admitted under the forfeiture-by wrongdoing exception pursuant to a conspiracy theory of liability, when a defendant's co-conspirators engaged in the wrongdoing that ultimately rendered the declarant unavailable as a witness. We now conclude that traditional principles of conspiracy liability are applicable within the forfeiture-by-wrongdoing analysis.
Dinkins, 691 F.3d at 384.

The Fourth Circuit did not appear to see a need to extensively explain its application of Pinkerton in the defendant's case. It noted:

The language of Rule 804(b)(6) supports the application of Pinkerton principles of conspiratorial liability in the forfeiture-by-wrongdoing context, by requiring that the defendant either have “wrongfully caused— or acquiesced in wrongfully causing — the declarant's unavailability.” The term “acquiesce,” within the meaning of Rule 804(b)(6), encompasses wrongdoing that, while not directly caused by a defendant co-conspirator, is nevertheless attributable to that defendant because he accepted or tacitly approved the wrongdoing.
Dinkins, 691 F.3d at 384 (quoting United States v. Thompson, 286 F.3d 950, 964 (7th Cir. 2002) (in the context of Rule 804(b)(6), defining “acquiesce” as “to accept or comply tacitly or passively”.)

The circuit explained that its finding was not unique and that "[o]ur conclusion is supported by decisions of our sister circuits applying principles of conspiratorial liability." In particular, the circuit noted its dependence on United States v. Cherry, 217 F.3d 811, 820 (10th Cir. 2000) (Balancing a defendant's rights under the Confrontation Clause against the interest of courts in preventing witness tampering warranted application of Pinkerton principles in the forfeiture-by-wrongdoing context.)

The circuit agreed with the Tenth Circuit that

that application of principles of conspiratorial liability in the forfeiture-by-wrongdoing context strikes the appropriate balance between the competing interests involved. Mere participation in a conspiracy will not trigger the admission of testimonial statements under a forfeiture-by-wrongdoing theory. Instead, a defendant in such circumstances would only waive his Confrontation Clause rights when (1) the defendant participated directly in planning or procuring the declarant's unavailability through wrongdoing; or (2) the wrongful procurement was in furtherance, within the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy.
Dinkins, 691 F.3d at 385 (quoting Thompson, 286 F.3d at 963–64 (adopting the Cherry analysis); Cherry, 217 F.3d at 820).

The Fourth Circuit outlined the basic foundational requirements necessary for admitting hearsay under the forfeiture-by-wrongdoing rule. The trial judge must find by a preponderance of the evidence that "(1) the defendant engaged or acquiesced in wrongdoing (2) that was intended to render the declarant unavailable as a witness and (3) that did, in fact, render the declarant unavailable as a witness.” The second element was further qualified by the Supreme Court so that the forfeiture-by-wrongdoing exception applies “only when the defendant engaged in conduct designed to prevent the witness from testifying.” Dinkins, 691 F.3d at 383 (quoting United States v. Gray, 405 F.3d 227, 241 (4th Cir. 2005); citing Giles v. California, 554 U.S. 359 (2008)

The Fourth Circuit readily concluded these foundational elements were satisfied. As the circuit explained:

Dowery's murder certainly was reasonably foreseeable to Dinkins, in view of the fact that he and co-conspirator West nearly had succeeded in murdering Dowery the year before, and had manifested the intent to “finish the job.” And, in view of other evidence in the record establishing a pattern of intimidation and violence with respect to government informants by members of Special, we consider that Dowery's ultimate murder was a natural consequence of the ongoing conspiracy. Lastly, the record is clear that Dinkins' acts of wrongdoing, as well as those of his co-conspirators, were intended to prevent, and in fact did prevent, Dowery from testifying.
Dinkins, 691 F.3d at 384.

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Federal Rules of Evidence
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