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AS APPLIED TO U.S. v. LAUERSEN
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Proving conspiracy After Crawford
High Court's Recent Ruling Seen to End Prosecution Use of Plea Allocutions
MID CHRISTOPHER J. GUMTHER David M. Zomow, partner, and Christopher Junthar, counsel, practice in the White Collar Crime Group of Skadden, Atps, Slate, Meagher & Flom.
THE SUPREME Court's recent decision in Crawford v. Washington. 2004 WL 413301 (S. Ct. Mar. 8. 2004) — involving state convictions for assault and attempted murder — may appear at first glance to have little reason' for federal white collar prosecutions. But a closer look is warranted.
The Crawford opinion — perhaps the most important interpretation of the Confrontation Clause in a generation — struck a fatal blow to a pernicious trial tactic that has been employed routinely in white collar conspiracy prosecutions in the federal courts of New York. That practice permitted the prosecution to introduce into evidence one or more plea allocutions of the defendant's non-testifying co-conspirators. ostensibly as proof of the existence (though not the defendant's participation in) the charged conspiracy.
As discussed below, although the Second Circuit (following prior Supreme Court precedent now overruled) had endorsed this scenario of over two decades. Crawford has now brought it to in abrupt and welcome end. And the Supreme Court's reasoning in Crawford may create other important limitations on a prosecutor's ability to introduce out of court statements that are "testimonial' in character.
Prior Second Circuit law
Complex white collar conspiracy prosecutions lave always involved two ways in which the jury lears from the defendant's alleged co conspirators. First and most straightforward, the defendant's alleged co-conspirator lakes the witness stand either under a grant of immunity or pursuant to some plea bargain requiring his testimony in exchange for the possibility of leniency it sentencing.
The accomplice-witness admits (and has probably already pleaded guilty) to conspiring to coin-nit federal crimes and goes on to assert that the defendant standing trial was a participant in the conspiracy. Because the appearance of a live witness affords defense counsel the opportunity for cross-examination — a chance to test such crucial natters as the alleged goals, timing, membership and means of the conspiracy (not to mention the motivations underlying the witness' testimony) — he time-honored role of the accomplice-witness is relatively non-controversial.
The second way the jury hears from the co-conspirator is not through a trial appearance but rather through the introduction into evidence of his or her out of court statements made in furtherance of the conspiracy. The prosecution may for example have a surreptitious in which a co-conspirator is heard to speak of the defendant’s role of the criminal scheme, or a live witness may testify that he or she heard such statements ( discriminating to the defendant’s standing trial )from the co-conspirator’s own mouth.
The
admission of co-conspirator statements traditionally
has not required
that the co-conspirator making the statement (the
declarant in evidence terminology)-actually appear in court
even if available to do so. The resulting absence of an opportunity
for cross-examination raised the question whether introduction
of such statements violated typically white collar prosecutions
in which the defendant's Sixth Amendment right "to be
confronted with the witnesses against him.
The Supreme Court definitively resolved that issue in favor
of the prosecutors holding that out of court statements a
non-testifying co-conspiracy- may in furtherance of the conspiracy
fall within a "firmly rooted hearsay exception")
and do not violate the Confrontation Clause. The rationale
was that statements truly made in furtherance of a conspiracy
have special evidentiary signifniance ( almost like ease
dropping on the conspiracy at work) that cannot be replicated
through live trial testimony of the declarant. In the courts
words,” Co-conspiracy statements derive much If their
value from the fact that they are made in a context very
different from trial and therefore are virtually irreplaceable
as substantive evidence."'
Prior to Crawford, there developed in the Second Circuit a third way jurors heard from the trial defendant's co-conspirators. Prosecutors were permitted to introduce a non-testifying co-conspirator s formal admission to participation in the conspiracy: i.e., his plea allocution. Such co-conspirator admissions not in furtherance of the conspiracy, and the co conspirator was unavailable to testify at trial by virtue of his or her invocation of the Fifth Amendment privilege against self-incrimination
From a transcript of the co-conspirator's guilty plea, jurors learned that the defendant's co-worker or associate had admitted in open court to participating in the same conspiracy charged faced by the defendant. Althouugh the conspiracy plea allocution necessarily referred an agreement with “Others” , any references naming or otherwise specifically identifying the defendant were redunated. A legal fiction was born that the allocution was being admitted only as proof of the existence of the conspiracy and not as proof of the defendants participation in it.
And the trial court dutifully instructed the jurors as to this “limited purpose” as the proof as though the jurors could resist the temptation to infer the defendant's conspiratorial guilt from his association with persons who pleaded guilty to a federal conspiracy charge.
The introduction of co- conspirator plea allocution appears to have been first endorsed by the Second Circuit in United States v. Wilkley.' a 1981 opinion upholding Judge Edward Weinfeld's decision to admit two such allocutions in evidence at a bank robbery trial.
Subsequent Second Circuit continued to uphold the practice in a variety of context most typically white collar crime prosecutions in which the defendant ‘s co-workers in the business world filed the role of non- testifying co-conspirators. Evidency objections were overruled on the theory that pleas allocution qualified for the exemption to the hearsay rule as a declaration against the pleading parties penal interest. Objections under the Confrontation Clause were rejected based on the reasoning in Ohio v. Roberts in which the Supreme Court held that Confrontation Clause is satisfied if the out of court statement “even if not qualified” as a firmly rooted hearsay exemption “ contained.
'Crawford' Impacts Conspiracy Prosecutions
"particularized guarantees of trustworthiness." The courts concluded that the co-conspirator's guilty plea, under oath and transcribed in a formal proceeding, bore sufficient indicia of reliability to satisfy the Confrontation Clause.
The problem for the defense was the lack of an opportunity to cross examine the non-testifying co-conspirator. The defense could not explore elementary questions such as the defendant's role (or lack thereof) in the alleged conspiracy, who profited from the conspiratorial conduct, where and when acts in furtherance of the conspiracy took place, and myriad other topics that might shed an innocent light (insofar as the trial defendant was concerned) on the bare bones of the co-conspirator's plea allocution.
Worse, at least one unpublished Second Circuit summary order ruled that where a plea allocution was introduced, the defendant was prop¬erly prevented from introducing exculpatory portions of that same allocution on hearsay grounds.'
The practice appeared to be grow¬ing, with some trials involving the admission of as many as three plea allocutions of non-testifying co-defendants. In one thoughtful opinion, the Circuit discussed at length the possibility that a due process violation might arise from the prosecution's selective conferring of immunity upon co-conspirators — immunizing those whose testimony was "helpful" to the government while refusing to immunize "unhelpful" co-conspira¬tors and instead use their plea allo¬cutions; still, the court found no due process violation in that case and affirmed the conviction.'
As discussed below, however, the Supreme Court's decision in Crawford ends over 20 years of jurisprudence in the Second Circuit allowing the admission of plea allocutions.
The 'Crawford’ Decision
In Crawford, defendant Michael Crawford was convicted of assault and attempted murder in part on the basis of a taped interview that his wife had given to the police. On tape the wife suggested that the victim was unarmed, contradicting Crawford's claim of self-defense, and the prosecution (though it could play the tape) was barred from calling the wife as a live witness at trial under the prevailing state spousal privilege rules.
Crawford’s claim of self defense and the prosecution (though it could be played on tape) was barred from calling the wife as a liuve witness at trial under the prevailing state spousal privilege rules.
Crawford asserted that the prosecution violated the Confrontation Clause because his wife (through the playing of the tape) was made a witness against him without being subject to cross-examination. The Washington Supreme Court rejected Crawford's argument, ruling that the tape survived Confrontation Clause analysis by virtue of its "particularized guarantees of trustworthiness" as defined in Ohio v. Roberts.
The U.S. Supreme Court concluded that Crawford's rights under the Confrontation Clause had been violated and reversed his conviction. Writing for seven members of the Court, Justice Antony Scalia engaged in a scholarly historical analysis of the types of out-of-court statements that were rejected by English courts at the time of the adoption of the Sixth Amendment in 1791.* From this history, he concluded that "the principal evil at which the Confrontation Clause was directed was the civil law mode of criminal procedure particulally in it’s use of ex parte examination as evidence against the accused.
The Court reasoned that certain forms of out-of-court statements are "testimonial," meaning that they result from formalized procedures for assembling evidence, such as depositions, hearing testimony, affidavits or statements taken by the police during interrogation. Such testimonial statements, the Court held, are not admissible consistent with the Confrontation Clause unless the defendant had a prior opportunity for cross-examination.
To develop this new rule, the Court had to abandon its prior (and more flexible) mode of analysis prescribed in Ohio v. Roberts. There, the Court had held that the admission of out-of-court statements did not violate the Confrontation Clause so long as the statements fell within a firmly rooted hearsay exception or otherwise had "particularized guarantees of trustworthiness."
Justice Scalia criticized that "[courts have invoked Roberts to admit other sorts of plainly testimonial statements despite the absence of any opportunity to cross-examine," and cited among several examples three of the Second Circuit decisions upholding the admission of co-conspirator plea allocutions."
There can be no doubt that these Second Circuit authorities are no longer valid. Ironically, the very criteria that qualified plea allocutions as "trustworthy" and admissible under the Second Circuit's application of Roberts — the formality of the plea proceeding, the administering of an oath, the presence of a judge — now render the allocutions "testimonial" and therefore inadmissible under Crawford,
Ripples .of the Ruling
Apart from plea allocution scenario analyzed above, the new Confrontation Clause analysis prescribed by Crawford will certainly provide defense attorneys with additional arguments against the introduction of out-of-court statements that can be characterized as "testimonial." For example, interesting questions are presented by allegations of conspiratorial conduct In connection with an alleged obstruction of justice.
As demonstrated
in the trial of Martha Stewart, prosecutors in such cases
may seek to introduce a co-defendant's statements
to the FBI or testimony before the SEC (i.e., the co-defendant's "testimonial" out-of-court
statements) to establish the defendant's participation in a
conspiracy to obstruct justice, make false statements and/or
commit perjury. In such a case, the prosecutor is offering
testimonial statements of a co-defendant's
against the accused without assuming the co-defendant does
not testify at trial ) prior opportunity for the defendant
to cross-exam.
Prosecutors would surely agrue among other things that the co-defendants testimonial statements in such a case are not offered for their truth (but rather to show that false statements were made) and, in any case, constitute admissible statements by a co-conspirator in furtherance of the conspiracy (a firmly rooted hearsay exception). But Crawford did not seem to treat such hearsay concepts as decisive for Confrontation Clause purposes.
As Justice Scalia crisply concluded: "the State admitted [the wife's] testimonial statement against petitioner, despite the fact that he had no opportunity to cross examine her. That alone is sufficient to make out a violation of the Sixth Amendment.""
Even if the prosecution's theory is that the co-defendant's testim¬onial statement was intentionally (and incriminatingly) false, the defendant may still require cross-examination to contend that the co-defendant's statements were in fact true or at least honestly mistaken — and therefore not evidence of an obstructive conspiracy. And the co-conspirator hearsay exception, after Crawford, may not apply where the statements in furtherance of the conspiracy are memorialized in formal testimony.
In short, after Crawford, it could be argued that a defendant charged with an obstruction conspiracy is denied his rights under the Confrontation Clause if forced to defend against the import of his co-defendant's statements to law enforcement without the opportunity to cross-examine that co-defendant.
"In addition, the scope of what statements fall within the purview of Crawford's new rule will be fertile ground for debate, since the Court left "for another day any effort to spell out a comprehensive definition of 'testimonial.'"
The Court allowed that "[w] hat-ever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." " The stakes are high, because if defense counsel can persuade the court that an out-of-court statement is testimonial, the statement cannot be introduced in evidence in the absence of an opportunity for cross examination."
For example, the "public records-hearsay exception defined in Fed. R. Evid. 803(B) — which allows introduction of "matters observed pursuant to a duty imposed by law" — allows un-cross-examined hearsay that is arguably testimonial in character and may be ripe for a Confrontation Clause challenge.
Conclusion
The Supreme Court's decision in Crawford v. Washington has ended a troubling practice of admitting plea allocutions of non-testifying co-conspirators at criminal trials. The rationale of 'Crawford' also will surely present other opportunities for defense counsel to limit prosecutors from introducing out-of-court statements... that are not subject to the indispensable testing of cross-examination .
(1) U.S. Constlt., Amend. VI.
(2) biadl v. United States, 457 U.S. 387 (1986): Bouijaify
v. United States. 483 U.S. 171 (1987).
(3) Inadi 457 U.S. at 396.
(4) 638 F.2d 560 (2d Clr. 1981).
(5) See. e.g., United States v. Dolah, 245 F.3d 98 (2d Cir.
2001) (securities fraud); United States v. Petrillo. 237 F.3d
119 (2d Cir. 2000) (tax fraud); United States v. Moskowitz,
215 F.3d 265 (2d. Cir. 2000) (securities fraud); see also United
States v. Donovan. 2003 WL 77196
(6)448U.S.56(1980).
(7) United Stales v. Ylldiz, 2004 WL 48871 (2d Cir. Jan. 8.
2004) (summary order).
(8) United States v. Dolah. 245 F.3d 98 (2d Cir.
(9) Chief Justice William Rehnquist and Jus tice Sandra Day
O'Connor concurred in the
theUConfrontation Clause*was unnecessary because reversal of
the Washington Supreme Court could be based on the failure
of the tape to pass the "trustiworthiness" test of
Roberts.
(10) 2004 WL 413301.
(11) Id. (citing United States v. PetriOo. 237 F.3d 119 (2d
Cir. 2001); United States v. Moskowitz. 215 F. 3d 265 (2d Cir.
2000); and United States v. Callego, 191 F.3d 156 (2d Cir.
1999).
' (12) 2004 WL 413301,
(13) Id.
(14) Id.
Copyright, NYLJ, March 2004