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United States v. Cherry
Citations: 217 F.3d 811; 2000 WL 807611Docket: No. 99-7019
Court: Court of Appeals for the Tenth Circuit; June 12, 2000; Federal Appellate Court
The court has granted a limited rehearing to amend the majority opinion by removing a specific sentence regarding Joshua's conviction for the murder of Lurks, while denying the remainder of the petition for rehearing and the request for rehearing en banc. The case involves an interlocutory appeal concerning the suppression of out-of-court statements made by a murdered witness, Ebon Sekou Lurks, in a drug conspiracy trial against five defendants, including Joshua Price. The government contends that the defendants wrongfully caused Lurks's unavailability and sought to admit his statements under Fed. R.Evid. 804(b)(6). Evidence presented indicated that Joshua was aware of Lurks's cooperation with authorities, leading to Lurks feeling threatened; shortly thereafter, he was murdered. Witness accounts linked Joshua to the crime scene, including a description of a car associated with him and forensic evidence connecting him to the murder. The district court determined that Joshua's actions constituted procuring Lurks's absence, allowing the admissibility of Lurks's statements against him. The case has been remanded for the district court to make findings based on the new legal standard established by this ruling. The court determined there was insufficient evidence that Price caused Lurks's absence and found "absolutely no evidence" that Cherry, Gibbs, and Parker had knowledge of or participated in Lurks's murder. Consequently, the district court did not accept that these defendants had waived their Confrontation Clause and hearsay objections to Lurks's statements. Legal review of a trial court's evidentiary decisions is for abuse of discretion, while legal conclusions regarding the Federal Rules of Evidence and the Confrontation Clause are reviewed de novo. A district court's evidentiary rulings are generally upheld unless a clear error of judgment is evident or if there is an error of law. The Confrontation Clause guarantees a defendant's right to confront witnesses, requiring a clear waiver for any relinquished rights. The Supreme Court has established that a defendant's intentional misconduct can lead to the waiver of these rights, as seen in cases where defendants threatened witnesses. Allowing a defendant to benefit from such misconduct would contradict public policy and the purpose of the Confrontation Clause. Rule 804(b)(6) of the Federal Rules of Evidence codifies the doctrine of waiver by misconduct, stating that hearsay is not excluded if a party's wrongdoing procured a witness's unavailability. It requires that before admitting grand jury testimony from unavailable witnesses due to alleged coercion, a judge must conduct an evidentiary hearing and determine by a preponderance of the evidence that the coercion caused the unavailability. The same standard applies under Rule 804(b)(6), which aims to discourage misconduct. The case at hand questions whether waiver can be established through involvement in a conspiracy rather than direct procurement of a witness's unavailability. The government asserts that defendants are liable for foreseeable outcomes of a conspiracy, thus waiving their objections under the Confrontation Clause and hearsay rules. The only relevant case interpreting "engaged or acquiesced in wrongdoing" post-Rule 804(b)(6) involved a defendant who directly caused a witness's unavailability, but the language of the rule suggests that acquiescence in wrongdoing within a conspiracy may also suffice for establishing waiver. While evidentiary rules and the Confrontation Clause are distinct, evidentiary rules cannot override constitutional rights. Rule 804(b)(6) allows the admission of hearsay statements from unavailable witnesses against defendants in criminal proceedings, based on the constitutional waiver by misconduct doctrine. This interpretation emphasizes two conflicting principles: the fundamental right to confrontation essential for a fair trial and the prohibition against a party profiting from their own wrongdoing. The government advocates for applying Pinkerton v. United States principles to this rule, which hold that conspirators are liable for substantive offenses committed in furtherance of their conspiracy, even without direct participation. In Pinkerton, one brother was indicted for offenses committed by the other, which were in execution of their conspiracy. The court noted that liability might not apply if the substantive offense was unrelated to the conspiracy's goals. The Eleventh Circuit outlines two scenarios for Pinkerton liability: when the substantive crime aligns with the conspiracy's goals or when it facilitates the conspiracy's objectives, as illustrated in relevant case law. The Eleventh Circuit has broadened Pinkerton liability to encompass reasonably foreseeable, originally unintended substantive crimes, recognizing that such crimes can arise from unforeseen events. However, this extension is constrained by due process requirements, which stipulate that only conspirators playing more than a minor role or possessing actual knowledge of relevant circumstances are liable for these unintended crimes. In contrast, the Tenth Circuit has not adopted this broader interpretation, instead defining Pinkerton liability as applying only to crimes committed in furtherance of the conspiracy and those that are reasonably foreseeable as a natural consequence of the conspiracy's unlawful objectives. A conspirator's liability ceases once the conspiracy achieves its goals or if they withdraw, with withdrawal requiring demonstrable actions to disavow the conspiracy's purpose. While the Tenth Circuit has applied Pinkerton liability to firearm charges linked to co-conspirators, it has refrained from extending this liability to first-degree murder not originally intended in the conspiracy, citing the stricter intent requirement for murder under 18 U.S.C. 1111. The court expresses concern that extending liability in this manner could unjustly implicate minor participants in drug conspiracies for serious crimes like murder, which would conflict with due process principles. Consequently, the Tenth Circuit declines to adopt the Eleventh Circuit's broader application of Pinkerton liability regarding substantive criminal offenses. Nonetheless, it acknowledges that Pinkerton's principles can adequately guide determinations of whether a defendant has waived confrontation and hearsay rights, suggesting that the criteria for waiving trial rights should align with those for establishing criminal liability. The acquiescence prong of Fed. R. Evid. 804(b)(6) allows for the application of a Pinkerton theory of conspiratorial responsibility to assess wrongful procurement of witness unavailability, in alignment with the Confrontation Clause. Current case law does not explicitly adopt or reject Pinkerton liability in waiver by misconduct contexts, but offers insights into imputed agency. In *United States v. Mastrangelo*, the Second Circuit defined imputed waiver broadly, stating that if a defendant is involved in a witness's murder, their objections to the witness's testimony are waived; mere knowledge of a murder plot is sufficient for waiver, although the case was remanded due to insufficient evidence of involvement. Conversely, in *United States v. Houlihan*, the First Circuit required affirmative misconduct by the defendant to trigger waiver, focusing on a conspiracy specifically aimed at murdering a witness. This case did not clarify the extent to which a defendant might bear responsibility for a co-conspirator's actions leading to a witness's unavailability. Lastly, *Olson v. Green* highlighted that the right to confront witnesses is personal to the accused, and a co-conspirator's actions cannot attribute waiver of that right to the defendant without clear evidence of collaboration. Olson's theory of Confrontation Clause rights does not preclude an agency theory of waiver when one party acts on another's behalf. Under the Pinkerton doctrine, a co-conspirator can be held individually liable if their actions are within the conspiracy's scope. The Eighth Circuit allows for vicarious waiver when the government shows that a co-conspirator acted on the defendant’s behalf or together with them. In United States v. White, the court rejected the idea of co-conspiratorial waiver based solely on participation in a conspiracy, emphasizing that the government must demonstrate specific involvement in the planning or execution of a related wrongful act, such as murder. While agreeing with White that mere conspiracy participation may not suffice for waiving confrontation rights, it is argued that participation may suffice when combined with evidence that the act was in furtherance of the conspiracy and foreseeable. The failure to incorporate Pinkerton’s principles may disproportionately favor Confrontation Clause rights over the need to prevent witness tampering. The text advocates for recognizing agency concepts to allow the admission of testimony from unavailable witnesses against co-conspirators, positing that this better balances conflicting legal principles. It concludes that a co-conspirator may be deemed to have acquiesced in the wrongful procurement of a witness’s unavailability under Rule 804(b)(6) when the government meets the Pinkerton requirements. The district court's caution regarding confrontation rights and the application of Pinkerton liability is acknowledged. Guidance is provided for district courts on the inquiry related to the Confrontation Clause and the waiver-by-misconduct rule. A defendant can waive Confrontation Clause rights if evidence shows: (1) direct participation in wrongdoing that led to a witness's unavailability; or (2) involvement in wrongdoing that is a foreseeable consequence of an ongoing conspiracy. The district court's previous ruling, which found insufficient evidence of direct participation in a murder, is affirmed; however, the case is remanded to apply the planning and Pinkerton tests regarding defendants' involvement in the conspiracy. Participation in a drug conspiracy can lead to waiver of confrontation rights if the wrongdoing that caused the witness's unavailability was done in furtherance of the conspiracy and was a natural consequence of it. The district court must assess the Pinkerton factors concerning the murder's relation to the conspiracy. Additionally, a defendant can avoid liability for co-conspirators' actions if they can demonstrate they withdrew from the conspiracy before those actions occurred, requiring clear disavowal of the conspiracy's purpose. The district court found no evidence that defendants Cherry, Gibbs, and Parker had actual knowledge of or participated in the murder of Ebon Sekou Lurks, a determination deemed not clearly erroneous upon review. However, the possibility of waiver under a Pinkerton theory remains, as actual knowledge is not a prerequisite for conspiratorial waiver if the elements of scope, furtherance, and reasonable foreseeability are met. The court noted that while there was insufficient evidence to show Teresa Price procured Lurks's absence, her acquisition of the car used in the murder under false pretenses and her proximity to Joshua at the time might support an inference of her involvement in the murder's planning. The matter is remanded for specific findings regarding Teresa Price's participation and whether Joshua Price's actions were foreseeable within the context of an ongoing drug conspiracy. The district court's order is reversed and remanded for these findings, with no opinion expressed on the potential for first-degree murder liability under Pinkerton. It is established that a conspirator can be liable for homicide committed by a co-conspirator if it was a foreseeable consequence of the conspiracy. To convict a defendant of second-degree murder or involuntary manslaughter, the government must only demonstrate reckless disregard for human life. Furthermore, a defendant can waive confrontation rights in scenarios justifying manslaughter liability under the Pinkerton doctrine, although the specifics of substantive crime liability may involve additional considerations. Notably, the record lacks evidence of Cherry, Gibbs, and Parker's involvement in planning the murder.