Saturday, May 8, 2010
Conspiracy Theory: Eleventh Circuit Finds No Confrontation Clause Problem With Co-Conspirator Admission Made To Confidential Informant
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause. Thus, in its recent opinion in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit was able to find a statement admissible without regard for the Confrontation Clause because co-conspirator admissions are nontestimonial, even if they are made to confidential informants.
In Diaz, Carlos Diaz was convicted of conspiracy to possess with intent to distribute five kilograms or more of cocaine, attempt to possess with intent to distribute five kilograms or more of cocaine, and carrying a firearm during and in relation to a drug trafficking crime. He thereafter appealed, claiming, inter alia, that the district court erred in allowing for the admission of a statement by his alleged co-conspirator, Carmello Crespo-Dones. This statement occurred when Diaz and Crespo-Dones met with two confidential informants to discuss the purchase of ten kilograms of cocaine, with one CI questioning the presence of Diaz, and Crespo-Dones reassuring the CI that Diaz was a friend and a drug dealer with many contacts who would be useful for future deals. At trial, the CI testified regarding this statement, but Crespo-Dones did not, prompting Diaz's appeal.
Now, the question of what exactly constitutes a "testimonial" statement is a question which has prompted considerable debate. Generally, courts have found that a statement is testimonial if it was made under circumstances which would lead a reasonable man to believe that his statement would be available for use at a later trial. But what are those circumstances? Well, as the Eleventh Circuit noted, one such circumstance is when a statement is a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E). According to the court, "[t]he Supreme Court has noted that statements in furtherance of a conspiracy are 'by their nature...not testimonial.'"
Moreover, the court held that
We have likewise held that a co-conspirator's statements to a confidential informant, which are admissible under Federal Rule of Evidence 801(d)(2)(E), are not "testimonial" and thus do not violate a defendant's Sixth Amendment confrontation rights....We explained in Underwood that a co-conspirator's recorded conversations "clearly were not made under circumstances which would have led him reasonably to believe that his statement[s] would be available for use at a later trial."...Had the coconspirator known the true identity of the confidential informant, he would never have spoken to her in the first place.