EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, August 23, 2012

Forfeiture From The Black Whole: 4th Circuit Applies Forfeiture By Wrongdoing Doctrine Via Pinkerton

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Meanwhile, pursuant to the Supreme Court's opinion in Pinkerton v. United States, 328 U.S. 640 (1946),  person is "liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy." 

I have seen Rule 804(b)(6) cited in many cases and Pinkerton cited in many cases, but never in the same case...that is, until the recent opinion of the Fourth Circuit in United States v. Dinkins, 2012 WL 3292417 (4th Cir. 2012).

In Dinkins, James Dinkins, Melvin Gilbert, and Darron Goods were charged in a twelve-count indictment, with the predominating count of the indictment being the charge of conspiracy to distribute narcotics. After they were convicted, Dinkins and Gilbert appealed, claiming, inter alia, that a declarant's statements incriminating them were improperly admitted under Rule 804(b)(6).

Specifically, Dinkins alleged that

the forfeiture by-wrongdoing exception did not apply to [the declarant]'s statements regarding Dinkins' acts, because Dinkins did not participate in any wrongdoing that caused [the declarant]'s death. Dinkins argues that by the time that [the declarant] was killed in November 2006, Dinkins had been in jail for about a year, and no evidence was presented to show that he participated in the murder.

The government responded that Dinkins was responsible for the declarant's murder pursuant to Pinkerton. The Fourth Circuit agreed, finding that

The language of Rule 804(b)(6) supports the application of Pinkerton principles of conspiratorial liability in the forfeiture-by-wrongdoing context, by requiring that the defendant either have "wrongfully caused— or acquiesced in wrongfully causing—the declarant's unavailability."... The term "acquiesce," within the meaning of Rule 804(b)(6), encompasses wrongdoing that, while not directly caused by a defendant coconspirator, is nevertheless attributable to that defendant because he accepted or tacitly approved the wrongdoing.

Specifically, the court determined that

In the present case, the evidence showed that the murder of [the declarant] in November 2006 was in furtherance, within the scope, and reasonably foreseeable as a natural consequence of an ongoing conspiracy of which Dinkins was a member.



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