Saturday, August 30, 2008
She's A Femme Fatale: Ninth Circuit Finds Federal Rule of Civil Procedure 32(a)(4)(B) Allows For Admission Of Deposition Testimony In Life Insurance Murder Case
The Ninth Circuit's recent opinion in Nationwide Life Ins. Co. v. Richards makes an important point about the interplay between the Article VIII of the Federal Rules of Evidence and Federal Rule of Civil Procedure 32(a). In Richards, Nationwide Life Insurance Company brought a non-statutory interpleader action to resolve conflicting claims to the proceeds of a one million dollar insurance policy written on the life of Bryan Richards, who was murdered in December 2001. The district court entered a judgment against Bryan's wife and in favor of Bryan's brother, Keith, in his role as guardian ad litem for Bryce and Kendall Richards, the two minor children of Bryan and Angelina. Why did it do so?
Well, it determined that Angelina did conspire in, aid, and abet Bryan's murder, and thus was disqualified from receiving any proceeds from the policy. Instrumental in that finding was the deposition testimony of Gerald Strebendt, a former Marine sniper and close personal friend of Rafiel Torre, who was convicted of Bryan's murder. In his deposition, Strebendt, who did not testify at trial, testified that, inter alia,
-he met Angelina through Torre in early September 2001 and that later the same month he witnessed Angelina and Torre get Bryan intoxicated so that the two of them could spend the evening together without Bryan's knowledge;
-Angelina told him that she and Torre were having an affair;
-he saw Angelina give Torre $10,000 in cash and that shortly afterward Torre said, "Angelina just wishes she could be rid of Bryan, she wishes he was just gone...and she's even willing to pay somebody $10,000 to do it...and she knows you [Strebendt] were a sniper in the Marines and she wanted to know if you're interested....;"
-Torre called him several times in late December and early in mid-January, stated that Bryan had been killed, and emphasized his need to see Strebendt in person;
-Torre admitted to killing Bryan but claimed that it was self-defense after Bryan accused him of having an affair with Angelina and pointed a Glock handgun at him;
-Torre asked Strebendt to provide an alibi, which Strebendt refused to do, although Strebendt did agree to keep Bryan's handgun;
-he contacted sheriff's detectives and agreed to make recorded telephone calls to Angelina;
-On December 11, 2003, Strebendt told Angelina that “[t]he gun that Rafiel gave me has been recovered,” to which Angelina responded that she did not know what Strebendt was talking about and that he had better talk to Torre;
-On December 12, 2003, Strebendt told Angelina that Torre had admitted to killing Bryan in self-defense, had given Strebendt Bryan's gun, and had told Strebendt that Angelina would pay $10,000 for someone to kill Bryan. Angelina responded: "That's ridiculous. I would never say that."
At trial, Angelina raised a hearsay objection to Strebendt's deposition testimony regarding Torre's statements but the district court found that Angelina and Torre were engaged in a conspiracy to murder Bryan and that Torre's statements as reported by Strebendt thus were admissible as non-hearsay statements of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E).
On appeal, Angelina claimed, inter alia, that the trial court erred in finding that Federal Rule of Evidence 801(d)(2)(E) applied and in finding that Strebendt's deposition testimony was admissible under Federal Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay. That exception requires that the declarant be "unavailable" to testify at trial, and Angelina correctly argued that Strebendt did not meet any of the definitions of unavailability listed in Federal Rules of Evidence 804(a)(1)-(5).
The Ninth Circuit, however, found that Strebendt's deposition testimony was admissible under Federal Rule of Civil Procedure 32(a)(4)(B), which states that "[a] party may use for any purpose the deposition of a witness, whether or not a party, if the court finds...that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition." The Ninth Circuit correctly noted that under Federal Rule of Evidence 802, "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Thus, because Federal Rule of Civil Procedure 32(a)(4)(B) is one of these "other rules," Strebendt's deposition testimony was properly admitted.
The Ninth Circuit then found that there were sufficient facts in the record to support application of Federal Rule of Evidence 801(d)(2)(E) to Torre's statements to Strebendt. And while the Ninth Circuit did not address the issue, I will note that even Torre's statements asking Strebendt for an alibi and to take his handgun would likely qualify as statements during and in furtherance of the conspiracy to kill Bryan even though they occurred after his murder. See, e.g., United States v. Silverstein, 737 F.2d 864, 867 (10th Cir. 1984).