Saturday, December 27, 2008
The recent opinion of the First Circuit in United States v. Cruz-Diaz, 2008 WL 5250979 (1st Cir. 2008), contains what seems to me to be a pretty blatant misstatement of the interplay between a rule of evidence and the Confrontation Clause. Luckily for the court, however, that statement was in dicta.
In Cruz-Diaz, a jury convicted Angel Zamora Cruz-Díaz (Cruz) and José Alfredo Ayala-Colón (Ayala) of conspiring to rob a federally insured bank, aiding and abetting a bank robbery by use of a dangerous weapon, and aiding and abetting the use of a firearm during and in relation to a crime of violence.
Both defendants subsequently appealed, with Ayala's sole claim on appeal being that the trial court erred when it allowed an FBI agent to testify regarding an out-of-court statement made to authorities by Cruz, his codefendant. The court allowed the agent to testify about Cruz's statement after Ayala's counsel, via cross-examination, questioned a Puerto Rico police officer about the failure of the police to pursue various investigatory options after it detained Cruz and Ayala.
The agent thereafter explained that the FBI and Puerto Rico police failed to pursue certain investigatory options because they believed they had captured the right suspects. And, in doing so, the agent referred to Cruz's out-of-court statement while testifying that:
"I became aware at the time of the detention of the two defendants that [Cruz] had stated to [the officer] who gained custody of him, that ... 'the money is over there in a black bag, we already threw away the weapons,' and something to the effect of, 'we're screwed, less than five minutes and they caught us.'"
The First Circuit correctly found that this testimony did not violate Ayala's rights under the Confrontation Clause because Cruz's confession was not admitted to prove the truth of the matter asserted. Indeed, the court noted that before the agent rendered the above testimony, the judge gave the following limiting instruction:
"[The FBI agent] is going to testify as to actions he took in his investigation of this case, based upon information he received. And what I'm going to instruct you is that his testimony concerning what he did, the actions he took, because of information [he] had, is not being presented to you to consider the truthfulness of the defendant's statement in any way whatsoever. You're instructed not to consider the statement he's going to testify about as evidence on any of the counts or against the defendants of any of the counts charged in the indictment."
So, where did the court go wrong? Well, the court noted that Cruz's confession was thus not hearsay and could not violate the Confrontation Clause and specifically the Bruton doctrine, which holds that a confession by a non-testifying codefendant cannot be admitted against another defendant being prosecuted in the same (joint) trial.
In addressing this hypothetical Bruton issue in dicta, the court noted:
"It is well established that a codefendant's out-of-court statement is admissible against that codefendant as a 'party admission.' Fed.R.Evid. 801(d)(2)....But that same statement is inadmissible hearsay and raises Confrontation Clause concerns with respect to another defendant being prosecuted in a joint trial."
Now, I'm not quite sure what the First Circuit was saying. On the one hand, if it were implying that Cruz's confession would have qualified as a co-conspirator admission if it were offered for the truth of the matter asserted, the First Circuit would have been wrong. That's because Federal Rule of Evidence 801(d)(2)(E) defines a co-conspirator admission as "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Clearly, Cruz's confession to the agent after he was already apprehended was neither during the course of nor in furtherance of his alleged conspiracy with Ayala.
On the other hand, maybe the First Circuit was not saying that Cruz's confession could have been construed as a co-conspirator admission and was merely saying that if it had a co-conspirator admission before it, it would have had a Bruton issue. But this conclusion would have been just as wrong. That is because statements that qualify as co-conspirator admissions are deemed non-testimonial (and the admissions of both co-conspirators), meaning that they raise no Bruton problem. See, e.g., United States v. SIngh. 494 F.3d 653, 658 (8th Cir. 2007).