United States of America v. Michelle Cherry Ladonna Gibbs Teresa Price, Also Known as Teresa Brown Sonya Parker, - and Joshua Price, Jr., Also Known as Lil' June, Also Known as June, Also Known as June Anderson

Citations: 217 F.3d 811; 2000 Colo. J. C.A.R. 3371; 2000 U.S. App. LEXIS 13533Docket: 99-7019

Court: Court of Appeals for the Tenth Circuit; June 12, 2000; Federal Appellate Court

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The case involves an interlocutory appeal regarding the suppression of out-of-court statements made by a murdered witness, Ebon Sekou Lurks, in a drug conspiracy trial involving five defendants: Joshua Price, Michelle Cherry, LaDonna Gibbs, Teresa Price, and Sonya Parker. The court addressed the doctrine of waiver by misconduct and the application of Federal Rule of Evidence 804(b)(6), determining that co-conspirators can waive confrontation and hearsay objections based on their involvement in a conspiracy that led to the witness's murder. 

The government contended that Lurks's murder was a result of the defendants' actions, specifically that Joshua Price's ex-wife had disclosed Lurks's cooperation with law enforcement to Joshua, which prompted actions by the defendants leading to Lurks's unavailability. Evidence presented included Lurks reporting being followed by Joshua and Teresa Price, and circumstantial details surrounding the borrowing of a car linked to the defendants, which was observed near Lurks's home around the time of his murder. The court remanded the case to the district court for findings based on the newly established standard regarding the waiver of rights in light of conspiracy involvement. An order was issued granting limited rehearing to amend a previous opinion, with the suggestion for rehearing en banc denied.

At approximately 11 p.m., gunshots were reported near Lurks's residence, with witnesses identifying a tall, thin black man, matching Joshua Price's description, pursuing a shorter, stout black man resembling Lurks. One witness noted a car similar to the one borrowed by Joshua and Price near the scene shortly after the shots, and another identified a license plate that closely matched the borrowed vehicle, differing only by the inversion of two digits. Lurks's body was discovered shortly after midnight, while Price returned the borrowed car between midnight and 12:30 a.m. on January 29, 1998. Investigators found DNA evidence linking Joshua to the murder through debris on his tennis shoes.

The district court ruled that Joshua was responsible for Lurks's absence, allowing Lurks's statements to be admissible against him, but found insufficient evidence to prove that Price, Cherry, Gibbs, and Parker had any involvement in procuring Lurks's absence or had any knowledge of the murder. Consequently, the court did not accept that these defendants waived their Confrontation Clause and hearsay objections regarding Lurks's statements.

Evidentiary decisions by trial courts are reviewed for abuse of discretion, while legal conclusions related to the Federal Rules of Evidence and the Confrontation Clause are reviewed de novo. A district court's rulings can only be reversed if there is clear evidence of error in judgment or legal misapplication.

The Confrontation Clause guarantees a defendant's right to confront witnesses, requiring a clear and intentional waiver for it to be valid. The Supreme Court has established that a defendant's intentional misconduct can waive these rights. This principle has been applied in cases where defendants, through threatening behavior towards witnesses, were found to have forfeited their confrontation rights, as allowing them to benefit from such conduct contradicts 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 intended to procure the unavailability of a witness. Prior to this rule, there was uncertainty regarding the burden of proof for showing waiver by misconduct, but it has been established that a preponderance of the evidence is required for a judge to admit grand jury testimony from witnesses made unavailable due to alleged coercion by the defendant. The district court correctly applied this standard under Rule 804(b)(6). The current case examines whether waiver can be established through conspiracy involvement rather than direct procurement of a witness's unavailability. The government invokes Pinkerton v. United States, arguing that defendants are liable for foreseeable outcomes of their drug conspiracy, which would waive their Confrontation Clause and hearsay objections. Only one case, United States v. Emery, has interpreted "engaged or acquiesced in wrongdoing" under Rule 804(b)(6), involving a defendant who directly caused a witness's unavailability through her murder, clearly fitting the rule's definition of wrongdoing.

Rule 804(b)(6) allows for the imputation of waiver under an agency theory to a defendant who has acquiesced in the wrongful procurement of a witness's unavailability, even if they did not directly engage in wrongdoing outside of the conspiracy. The scope of such waiver in criminal cases is clarified by the Confrontation Clause, which underscores the fundamental right to confrontation in trials while also preventing parties from benefitting from their own misconduct. Therefore, hearsay statements from unavailable witnesses may be admitted against defendants if they align with the waiver by misconduct doctrine.

The government advocates for applying the principles of conspiratorial liability from Pinkerton v. United States, which established that conspirators can be held liable for substantive crimes committed in furtherance of the conspiracy, even without direct involvement in those crimes. In Pinkerton, the Court clarified that the actions of one conspirator are attributable to all, provided those actions further the conspiracy. This principle implies that if a substantive offense is executed in accordance with the conspiracy, liability extends to all conspirators, although the Court acknowledged potential limits on liability for acts outside the agreed scope of the conspiracy.

Pinkerton co-conspirator liability is applied in two main scenarios: (1) when the substantive crime is a goal of the conspiracy (e.g., possession or distribution of drugs within a narcotics conspiracy), and (2) when the substantive crime differs from the conspiracy's main objective but aids in achieving its goals (e.g., a co-conspirator in a drug conspiracy being liable for possessing a firearm). The Eleventh Circuit has broadened Pinkerton liability to include reasonably foreseeable but unintended substantive crimes resulting from an unexpected turn of events, while also stressing due process limitations. These limitations state that only those conspirators who played more than a minor role or had actual knowledge of the circumstances leading to the unintended crime can be held liable. 

In contrast, another circuit has not adopted such a broad application. Instead, it maintains that during a conspiracy, each member is responsible for the crimes committed by fellow conspirators only if those crimes further the conspiracy's objectives. The Supreme Court has affirmed that liability is confined to crimes within the scope of the conspiracy that are considered a natural consequence of the agreement. A conspirator's liability ceases once the conspiracy achieves its goals or if they withdraw, which requires a demonstrable act to disavow the conspiracy's purpose.

Pinkerton liability has been applied to hold defendants guilty of firearm charges based on the actions of co-conspirators, but it has not been extended to first-degree murder that was not the original objective of the conspiracy. The specific intent required for first-degree murder is significantly stricter than the mere foreseeability of violence in drug conspiracies. Extending Pinkerton liability in this manner would unfairly implicate minor drug distribution co-conspirators in first-degree murder, conflicting with due process limitations.

The court declines to adopt the Eleventh Circuit's interpretation of Pinkerton liability for substantive criminal liability but agrees that it is appropriate for assessing whether a defendant has waived confrontation and hearsay objections. The forfeiture of a defendant's trial rights should align with the standards for sustaining a conviction.

In evaluating conspiratorial responsibility under Rule 804(b)(6), the court notes a lack of published opinions specifically addressing Pinkerton liability in the context of waiver by misconduct. However, existing cases on imputed agency provide a framework for defining co-conspiratorial waivers of objections. The Second Circuit's ruling in United States v. Mastrangelo established that a defendant could waive objections to witness testimony if involved in the witness's death through knowledge or complicity. The case was remanded due to insufficient evidence regarding the defendant's involvement.

The First Circuit in *United States v. Houlihan* established that a defendant waives their right to confront a witness's out-of-court statements if they cause the witness's unavailability through a wrongful act intended to prevent testimony. This ruling, while affirming that an affirmative act by the defendant is necessary, does not specify what such an act entails. In *Houlihan*, the defendants conspired specifically to murder a potential witness, which the court recognized as depriving the government of testimony. The case primarily addressed whether the waiver-by-misconduct doctrine applies to potential witnesses rather than examining the defendants' role in the murder.

In *Olson v. Green*, the Eighth Circuit articulated that the right to confront witnesses is personal to the accused, meaning only the defendant or their representative can waive this right. In Olson's case, the State failed to show that a co-conspirator acted on his behalf to intimidate a witness, thus Olson could not be deemed to have waived his right to confront that witness. The court noted that while conspiratorial liability was not directly addressed, an agency theory of waiver could apply if it is shown that a co-conspirator acted on the defendant's behalf.

The district court in *United States v. White* rejected the notion of co-conspiratorial waiver in a similar factual scenario, emphasizing that mere participation in a conspiracy was insufficient to waive confrontation rights. The court, relying on *Mastrangelo*, required evidence that a defendant participated in planning or executing a murder to establish such a waiver. This decision underscored the need for a more specific connection between the defendant's actions and the witness's unavailability.

Participation in a conspiracy alone does not waive confrontation rights, but it may contribute to such a waiver when combined with evidence that the wrongful act was in furtherance of the conspiracy and foreseeable as a natural consequence. The failure to incorporate Pinkerton's principles in assessing conspiratorial responsibility risks overemphasizing Confrontation Clause rights at the expense of preventing witness tampering. Acknowledging agency concepts allows for the admission of testimony from unavailable witnesses against co-conspirators, even if they were not directly responsible for that unavailability, aligning with the principle that one cannot benefit from their wrongdoing. Therefore, a co-conspirator can be considered to have “acquiesced” in a witness's wrongful procurement of unavailability under Rule 804(b)(6) if the government meets Pinkerton's criteria. The court recognizes the district court's cautious approach to confrontation rights and aims to clarify the legal standard for future cases. A defendant may waive confrontation rights if evidence shows either direct involvement in procuring a witness's unavailability or if such procurement was a foreseeable consequence of ongoing conspiratorial activities. Upon reviewing the district court's ruling, it was found that the government did not prove direct participation in a murder by the defendants, leading to a remand for further evaluation under the clarified standard. Even if waiver standards are met, the district court retains discretion to consider the balance of prejudice and probative value under Federal Rule of Evidence 403.

Participation in a drug conspiracy may waive constitutional confrontation rights under certain conditions: if the wrongdoing leading to a witness's unavailability was in furtherance of the conspiracy and reasonably foreseeable as a necessary consequence. The court remands for findings on whether Lurks's murder met these criteria, emphasizing that conspiracy scope may include secondary goals related to evasion of justice. Under the Pinkerton doctrine, defendants are not liable for co-conspirators' acts if they can prove they withdrew from the conspiracy before those acts occurred. The district court found no evidence that Cherry, Gibbs, and Parker had knowledge of or participated in Lurks's murder, but this does not eliminate the possibility of waiver under Pinkerton if the necessary elements are met. Additionally, the court noted that while evidence was insufficient to establish Teresa Price's direct involvement in procuring Lurks's absence, further examination of circumstantial evidence regarding her actions could support a finding of her participation in the murder planning. The court remands for specific findings on whether Price participated in planning Lurks's murder and whether the murder was in furtherance of the conspiracy. The previous order is reversed and remanded for further proceedings.

Following a ruling, the district court separated Joshua's case from those of Price, Cherry, Gibbs, and Parker. The court clarified that while it does not determine whether first-degree murder liability exists under Pinkerton, it is essential to note that a conspirator can be held liable for homicide committed by a co-conspirator, provided the homicide was a foreseeable consequence of an ongoing conspiracy. For convictions of second-degree murder or involuntary manslaughter, specific intent to kill is not required; rather, reckless disregard for human life suffices, with a heightened disregard needed to classify the act as second-degree murder. Individuals in a conspiracy where murder is foreseeable may exhibit the necessary reckless disregard to fulfill the intent element for at least involuntary manslaughter.

The court addressed the waiver of confrontation rights under circumstances that also justify criminal liability for manslaughter per the Pinkerton doctrine. This context pertains to the concept of a defendant procuring a witness's unavailability under Fed. R. Evid. 804(b)(6) and the waiver-by-misconduct doctrine but does not define liability for substantive crimes, which may have other legal limitations.

The record lacks evidence that Cherry, Gibbs, and Parker were involved in planning the murder. Circuit Judge Holloway dissents regarding the majority's application of Pinkerton and Rule 804(b)(6), arguing that the district judge's decision to exclude hearsay statements from the unavailable witness, Lurks, was appropriate. However, Holloway agrees with the government’s request for a remand to evaluate whether Teresa Price may have been complicit in Lurks’s murder, which could render Lurks’s statements admissible against her despite his unavailability. The district judge noted the government's assertion that all defendants waived their confrontation rights by securing Lurks's absence, thereby seeking to introduce his statements against all defendants based on their co-conspirator status.

The Order concluded that defendants Cherry, Gibbs, and Parker had no actual knowledge of, nor did they agree to or participate in the murder of Ebon Sekou Lurks. The government contended that their membership in a drug conspiracy constituted a waiver of their right to confront witnesses, arguing it was foreseeable that a co-conspirator could murder a witness. However, the District Judge disagreed, referencing U.S. v. White, which stated that mere participation in a conspiracy does not waive constitutional confrontation rights. The judge emphasized that failing to prevent a murder or participating in a drug conspiracy is insufficient for waiving these rights. The Order also cited Olson v. Green, affirming that the right to confront witnesses is personal to the accused and can only be waived by the defendant or their representative. The judge's reasoning highlighted the principle that there is a presumption against the waiver of constitutional rights, requiring clear evidence of intentional relinquishment. Consequently, the judge ruled against admitting Lurks's out-of-court statements for Cherry, Gibbs, and Parker. However, the judge agreed with the government regarding defendant Teresa Price, suggesting a remand to investigate whether she "acquiesced" to Lurks's murder, which was relevant to his unavailability as a witness.