Friday, October 2, 2009
I'm Going To Admit It: Puerto Rico Case Reveals Circuit Split Over Application Of Admissions Rule To Governmental Agents In Criminal Cases
Federal Rule of Evidence 801(d)(2)(A) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement, in either an individual or a representative capacity.
Under this Rule, three things are clear. Statements by a civil plaintiff are admissible against him, statements by a civil plaintiff are admissible against him, and statements by a criminal defendant are admissible against him. But are statements of governmental agents admissible against the prosecution in a criminal cases? As the recent opinion of the United States District Court for the District of Puerto Rico in United States v. Lopez-Ortiz, 2009 WL 2709369 (D. Puerto Rico 2009), makes clear, there is a split among courts, with the First Circuit finding that such statements can be admissible as admissions of party-opponents.
In Lopez-Ortiz, David Lopez-Ortiz, was charged with offenses related to a drug conspiracy and moved for the suppression of $450.00 currency seized from, claiming that the money was found as a result of an unlawful search of his person, in violation of the Fourth Amendment's protection against unreasonable searches and seizures. At the ensuing suppression hearing, agents who seized the currency claimed that they saw Lopez-Ortiz counting the money as he walked. The magistrate judge, however, discredited this testimony and granted the motion to suppress after considering the conflicting affidavit of Agent Pedro Perez, who averred that the agents found the currency in Lopez-Ortiz's waistband area.
The government actually had previously used this affidavit to procure a search warrant and presented it to the magistrare as part of the suppression hearing. After the judge ruled against the government, however, it claimed that the affidavit was inadmissible hearsay. And the United States District Court for the District of Puerto Rico noted that there is a split in the circuits, with some courts finding that statements of governmental agents can be admissible as admissions of part-opponents under Federal Rule of Evidence 801(d)(2)(A) and other courts disagreeing.
Luckily for Lopez-Ortiz, the district court noted that the First Circuit is one of the former courts, based upon its opinion in United States v. Kattar, 840 F.2d 118, 130 (1st Cir. 1988) ("[T]he Federal Rules clearly contemplate that the federal government is a party-opponent for the defendant in criminal cases.”). According to the district court,
Citing the First Circuit's holding in Kattar, the magistrate judge found in this case that the government "twice manifested an adoption or belief in the truth and accuracy of Agent Perez's statement."..."First, the government submitted the affidavit in support of an application for a warrant to search the defendant's residence," and "[s]econd, the government adopted the contents of paragraph four of the affidavit in its opposition to defendant's motion to suppress."...Because “the government has twice presented [the affidavit's] contents to this court," and because those contents diverged from agent testimony during the suppression hearing regarding the location of the seized currency, the magistrate judge allowed the affidavit to be admitted as the admission of a party-opponent.
Because the court found that the government "offer[ed] no persuasive argument refuting the magistrate judge's legal analysis on this matter," it affirmed the magistrate's ruling.