Wednesday, June 17, 2009
Prior Authorization: Eleventh Circuit Finds Threat Conveyed To Witness' Girlfriend Didn't Constitute An Authorized Admission
Federal Rule of Evidence 801(d)(2)(C) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a person authorized by the party to make a statement concerning the subject.
But what must a party seeking to admit such a statement present to establish such authorization? Must there be explicit words of authorization or can authorization be implied by the statement itself? Both Federal Rule of Evidence 801 and the Eleventh Circuit's recent opinion in United States v. Docampo, 2009 WL 1652910 (11th Cir. 2009), tell us that authorization cannot be implied (solely) by the statement itself, but I am not sure that I agree.
In Docampo, John Andrew Docampo, Jr. appealed from his convictions for conspiracy to possess with intent to distribute cocaine, possession of firearms in furtherance of the conspiracy, and conspiracy to possess firearms in furtherance of a drug trafficking crime. According to the testimony of Edwardo Lorenzo at trial, Docampo invited him to participate in the subject conspiracy, but Lorenzo declined. Lorenzo also testified at trial about a phone call Docampo made to Lorenzo's girlfriend during which Docampo told Lorenzo's girlfriend that "[e]ither bad things would happen to [Lorenzo] or somebody that [he] was close to if [he] was to testify." Docampo's attorney objected to this testimony as hearsay, but the district judge found that Docampo had opened the door to this testimony.
On Docampo's subsequent appeal, however, the Eleventh Circuit found that Docampo had not opened the door, which left the State scrambling to find an alternate rationale for the admission of Lorenzo's testimony. And the State's main argument was that Lorenzo's testimony concerning Docampo's statement to Lorenzo's girlfriend was admissible under Federal Rule of Evidence 801(d)(2)(C) because Docampo implicitly authorized Lorenzo's girlfriend to relate his threat to Lorenzo. The Eleventh Circuit disagreed (although it deemed the district court's error harmless), noting that Federal Rule of Evidence 801 provides that
The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
I understand the rationale of this sentence for statements arguably covered by Federal Rule of Evidence 801(d)(2)(D) and Federal Rule of Evidence 801(d)(2)(E). Federal Rule of Evidence 801(d)(2)(D) covers employee admissions, and, obviously, the proponent of an alleged employee admission must present evidence besides the alleged employee's statement to prove, inter alia, that the person making the admission was in fact the employee of a party. Meanwhile Federal Rule of Evidence 801(d)(2)(E) covers co-conspirator admissions, and, obviously, the proponent of an alleged co-conspirator admission must present evidence besides the alleged co-conspirator's statement to prove, inter alia, that the person making the statement was in fact the co-conspirator of a party.
But the same doesn't seem to work with authorized admissions under Federal Rule of Evidence 801(d)(2)(C). If Al tells Bob, "Tell Chris I am going to kill him," he he has authorized Bob to repeat the statement to Chris. Why, in this situation, would the statement not be sufficient to establish the authorization under Federal Rule of Evidence 801(d)(2)(C)? And what other evidence could the prosecutor even introduce besides the statement to prove the authorization?
The situation in Docampo is a little more complicated because Docampo apparently didn't explicitly authorize Lorenzo's girlfriend to repeat his threat to Lorenzo. But it seems clear to me that it was implied in Docampo's threat that he wanted, and thus authorized, Lorenzo's girlfriend to repeat his threat to Lorenzo. Otherwise, why would he have made the threat? It thus seems to me that Docampo's statement should have been deemed admissible, notwithstanding the aforementioned language from Federal Rule of Evidence 801.