Admitting Secret Confidential Informant Recordings Under The Confrontation Clause

When the government asks a confidential informant to record conversations with a co-conspirator, under what circumstances are the secret recordings admissible under the Confrontation Clause? The Seventh Circuit explains that an objective view applies in admitting the statements under the Confrontation Clause and rejects the defense request to apply a subjective standard, in United States v. Volpendesto, _ F.3d _ (7th Cir. March 24, 2014) (Nos. 11–3022, 12–1180, 12–1656)

The Seventh Circuit was recently asked to apply a subjective view to determine whether recordings made by a confidential informant were admission under the Confrontation Clause. In reviewing the issue, the circuit declined an invitation to overrule its precedent.

Trial Court Proceedings: Admitting Confidential Informant Recordings

The racketeering conspiracy case involved illegal gambling, conspiracy to damage property with explosives, and conspiracy to obstruct justice. During the investigation, confidential informant Mark Hay made secret recordings with defendant Sam Volpendesto discussing a prior bombing at C & S Amusements. Volpedesto recounted details about the bombing based on his involvement with co-conspirator Mark Polchan. The recordings were played at trial as substantive evidence to support the bombing charges. The statements included the following comments:

  • Sam Volpendesto’s comment, as Hay drove past C & S Amusements, that “we blew part of that away” and that it was a “nice job.”
  • Volpendesto’s identifying Polchan as the person who involved him in the job: “Mark was the original guy that knew what the fuck it was about, you know what I mean?”
  • Volpendesto’s expression of frustration that Polchan (often referred to as “Goldberg,” as in the name of his store) was compensated more generously for his services: “Goldberg made money [from the bombing], I made shit.”
  • Volpendesto’s statement, in response to Hay’s recollection that Formato had said police were looking for a brown van: “Yeah, a brown van … That’s not what we had.” When Hay mentioned that maybe the police were right that a van was used, Sam said, “But it wasn’t us. No we didn’t have a van. That’s why we laughed the next day when we found out that they were saying it was a van.”
  • Volpendesto’s statement, after Hay mentioned that he had passed the message about the brown van along to Polchan: “Yeah, he told me.”

Volpendesto, _ F.3d at _.

At trial, co-defendant Polchan objected to the recording being admitted against him as substantive evidence. The trial court admitted the recording as statements against interest under FRE 804(b)(3). After the jury convicted the defendants, co-defendant Polchan challenged the admission of the recording against him as hearsay and under the Confrontation Clause because he was not allowed to cross-examine co-defendant Volpendesto.

Seventh Circuit Review: Declining Invitation To Overrule President

On the Confrontation Clause challenge, the Seventh Circuit concluded the recordings were not testimonial. In applying prior precedent, the circuit noted that "[a] statement unwittingly made to a confidential informant and recorded by the government is not ‘testimonial’ for Confrontation Clause purposes." Volpendesto, _ F.3d at _ (quoting United States v. Watson, 525 F.3d 583, 589 (7th Cir. 2008) (noting one co-defendant’s “private statement to a confederate, which was secretly recorded, does not fit into any of Crawford's broad categories of testimonial evidence”)).

The circuit rejected the defense request "to overrule Watson":

He claims that the decision wrongly looked only to the speaker’s perspective to determine whether a statement was testimonial. Polchan argues that we must also consider the subjective intentions of the listener—here, the government informant Hay—to determine whether a statement is made “with an eye toward trial.” Crawford, 541 U.S. at 56 n.7. As he notes, the Supreme Court has said that “both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation.” Michigan v. Bryant, 131 S.Ct. 1143, 1160 (2011) (emphasis added).

Volpendesto, _ F.3d at _.

The circuit concluded that "Polchan selectively quotes from Bryant." Instead, "the Supreme Court instructed that 'the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.'" Volpendesto, _ F.3d at _ (quoting Bryant, 131 S.Ct. at 1156) (emphasis added). Consequently, the admission of the statement under the Confrontation Clause was not "from the subjective point of view of Hay, who knew he was secretly collecting evidence for the government" but "from an objective perspective, Hay and Volpendesto’s conversation looks like a casual, confidential discussion between co‐conspirators." Volpendesto, _ F.3d at _. Therefore, under this precedent, the recordings were not testimonial.

The circuit also agreed with the trial court that the statements were properly admitted under the three requirements for FRE804(b)(3). Volpendesto, _ F.3d at _ (citing United States v. Loggins, 486 F.3d 977, 981 (7th Cir. 2007) ("the proponent must establish that (1) the declarant is unavailable as a witness, (2) the statement was against the declarant's penal interest when made, and (3) corroborating circumstances clearly suggest that the statement is trustworthy")). First, defendant Volpendesto was unavailable to testify after invoking his Fifth Amendment right against self-incrimination. Second, the statements were inculpatory since they showed "a declarant’s inside knowledge of a crime” count. Volpendesto, _ F.3d at _ (quoting United States v. York, 933 F.2d 1343, 1360 (7th Cir. 1991), overruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) (en banc); see also United States v. Shukri, 207 F.3d 412, 416 (7th Cir. 2000) (statements that display the declarant’s “intimate knowledge” of a crime are against the declarant’s penal interest)). In particular, the statements showed Polchan's role in the offense, including "Sam Volpendesto’s revealing that Polchan got him involved in the bombing, his frustration that Polchan made more money from the job than he did, and his discussion of the government’s false lead with the brown van." Finally, the statements met the trustworthiness requirement since they were corroborated by other trial testimony from the confidential informant who testified and another witness and with forensic evidence.

Finally, the circuit found no issue in admitting the statements against co-defendant Polchan: "Once the hearsay is deemed sufficiently reliable to qualify for the exception, it may be used for any purpose, including as substantive evidence of a co‐defendant’s guilt." Volpendesto, _ F.3d at _ (citing Watson, 525 F.3d at 586–88 (evaluating a co‐conspirator’s hearsay statement under Rule 804(b)(3) to determine whether it was properly admitted against the appealing defendant); United States v. Hamilton, 19 F.3d 350, 354–57 (7th Cir. 1994) (rejecting an argument that admitting a co‐defendant’s hearsay statement against a non‐declarant defendant under Rule 804(b)(3) constitutes a Bruton violation)). While there were some objections made at trial concerning some portions of the recordings, the government redacted the recordings to address them.

Conclusion

The Volpendesto case reconfirms that confidential informant recordings are assessed under an objective view from the perspective of the declarant for Confrontation Clause purposes. The case also highlights that the recordings may be admitted under FRE 804(b)(3) where the requirements of the rule are met.

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