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September 10, 2012
Forfeit Loss: 8th Circuit Finds Forfeiture By Wrongdoing Applies To GF Who Aided & Abetted in Killing Witnesses Against BF
[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]
Prompted by the recent Drew Peterson verdict and the revelation that the conviction was secured in large part due to application of the forfeiture by wrongdoing doctrine, I have posted a couple of entries (here and here). In turn, these posts have led to some animated comments that have led me to conduct a good deal of research into the forfeiture by wrongdoing and whether and to what extent the concept of transferred intent applies to the doctrine. The opinion of the Eighth Circuit in United States v. Johnson, 495 F.3d 951 (8th Cir. 2007), predates the Supreme Court's landmark forfeiture opinion in Giles v. California by about a year, but it presents an interesting question that I hadn't seen addressed before. Can a defendant's intent to render a witness unavailable at somebody else's trial transfer to the defendant's subsequent murder trial? According to the Eighth Circuit, the answer is "yes."
In Johnson, Angela Johnson was charged with aiding and abetting the murder of five individuals while working in furtherance of a continuing criminal enterprise and five counts of aiding and abetting the killing of these individuals while engaging in a drug conspiracy. At trial, the prosecution introduced statements made by the five individuals under the doctrine of forfeiture by wrongdoing, finding that Johnson aided and abetted in their killing to prevent them from testifying against her boyfriend, Dustin Honken.
After she was convicted, Johnson appealed, claiming that forfeiture by wrongdoing did not apply because (1) she merely (allegedly) aided and abetted in the killings; and (2) the killings were connected to her boyfriend's impending trial and not any charges brought against her.
The Eighth Circuit quickly dispensed with this first argument, finding that
The fact that Johnson may have only aided and abetted the procurement of the witnesses' unavailability is of little moment. If a defendant's role as an aider and abettor may constitute sufficient participation in a murder to warrant the imposition of a death sentence, such conduct should also suffice for the forfeiture of hearsay and confrontation objections. In other words, it "would make little sense to limit forfeiture of a defendant's trial rights to a narrower set of facts than would be sufficient to sustain a conviction and corresponding loss of liberty." United States v. Cherry, 217 F.3d 811, 818 (10th Cir.2000); see also United States v. Carson, 455 F.3d 336, 364 (D.C.Cir.2006) (suggesting that if members of a conspiracy agree to kill potential witnesses against them, all of the members of the conspiracy would be criminally responsible for resulting murders and "there is no good reason why the murder should give any of them an evidentiary advantage"), cert. denied, 549 U.S. 1246, 127 S.Ct. 1351, 167 L.Ed.2d 146 (2007). Furthermore, Rule 804(b)(6) applies when a defendant has “engaged or acquiesced in wrongdoing” procuring a witness's unavailability. We believe that this language encompasses Johnson's substantial involvement in procuring the witnesses' unavailability.
And, the court then rejected Johnson's second argument, finding that
We also conclude that Rule 804(b)(6) applies to Johnson even though she had worked to procure the unavailability of potential witnesses against Honken rather than against herself. "'Because the Federal Rules of Evidence are a legislative enactment, we turn to the traditional tools of statutory construction in order to construe their provisions. We begin with the language itself.'"...The words of Rule 804(b)(6) provide only that the defendant must procure the unavailability of a witness—they do not specify the person against whom the unavailable witness was to have testified. After all, the purpose of Rule 804(b)(6), as the advisory committee to the Federal Rules of Evidence stated, was to enact a "prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself."...Johnson's conduct was no less abhorrent and no less offensive to "the heart of the system of justice itself" because she procured the unavailability of witnesses against Honken rather than against herself. Moreover, applying Rule 804(b)(6) in Johnson's case is consonant with the equitable rationales for the forfeiture by wrongdoing doctrine, which includes preventing individuals from profiting from their own wrongdoing....We also observe that in conspiracy cases, witnesses' cooperation with the government threatens not only the liberty of the particular conspirators against whom the witness may testify, but the viability of the conspiracy as a whole; and an investigation or prosecution that might start with one conspirator may result in charges being levied against other conspirators as well. In sum, it would make little sense in a case such as this to parse the forfeiture doctrine as finely as Johnson proposes. We conclude that the district court reasonably found by a preponderance of the evidence that Johnson had forfeited her confrontation and hearsay objections to the admission of statements by Nicholson and DeGeus.
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Great find! This is one of the fact patterns I was concerned about in the previous posts. Particularly, Johnson's second argument and the court's subsequent analysis.
Now, how applicable or instructional is Houlihan to Stacy's statements?
Is it a fact-intensive inquiry?
We can somewhat safely presume the mere "possibility" of a trial is too attenuated...
but what if there was something more?
The policy reasons expressed in Houlihan--not wanting to expedite a killing--seem applicable, but how?
Put another way, Houlihan seems concerned with killers resolving "I'll kill on Monday, since charges will be filed Friday." To counteract this, the court shakes off certain formal requirements of process and looks at the overall facts.
Relatedly, do we look at the defendant's subjective belief and understanding when the action was taken, or do we look at the objective setting? For example, if a defendant is 99% certain his wife just had a consultation with a divorce attorney and then kills her. 1. Is this enough under Houlihan to admit certain statements? 2. Do we look at whether there was an actual divorce consultation or just what the defendant believed? 3. Can we transfer intent and use the statements in a murder trial?
I'm really enjoying all the posts and discussion. Thanks again.
Posted by: Matt | Sep 11, 2012 5:51:21 AM
Also worth noting:
In Gray, the court reminded in footnote 9:
"We emphasize that the intent requirement in Rule 804(b)(6) continues to limit application of the forfeiture-by-wrongdoing exception to those cases in which the defendant intended, at least in part, to render the declarant unavailable as a witness against him. See Johnson, 219 F.3d at 356. Absent such intent, Rule 804(b)(6) has no application."
It appears the Eighth Circuit disagreed? But nevertheless employed Gray for support?
Posted by: Matt | Sep 11, 2012 8:40:55 AM
Houilhan is error in all sorts of ways but it's biggest flaw is that it only looks at one side of the equation. It's true that there is a sense in which Giles can create a perverse incentive for people to kill their victim sooner rather than later. The flip side, however, is that a ruling against Giles would have created a perverse incentive for prosecutors to manipulate the system. Every person has their enemies and it doesn't take much effort from an enterprising prosecutor to find them and convince a judge by a preponderance of the evidence that because all of person's enemies think he's guilty he must be guilty. That clearly and obviously is the concern that animates the Ginsburg/Souter concurrence; they explicitly say so.
The 8th is wrong here too. "Moreover, applying Rule 804(b)(6) in Johnson's case is consonant with the equitable rationales for the forfeiture by wrongdoing doctrine, which includes preventing individuals from profiting from their own wrongdoing." Giles clearly rejects a "profitability" test. The test is not outcome based; it's not a pragmatic test. There is no doubt that Giles profited from his elimination of the witness. The question is simply what was his intent.
Almost all the objections against Giles boil down to some version of the "but...but...but the witness isn't here!" The proper response to that is "So what?" Witnesses fail to show up for a trial for all sorts of reasons. The defendant should only bear the burden for that failure when he directly intended for it to happen.
Posted by: Daniel | Sep 11, 2012 9:02:18 AM
Daniel: How can the test not be outcome based? The doctrine requires the defendant to intend to procure the unavailability of the witness and actually procure the witness' unavailability. If Dan is on trial for arson and intends to kill William to prevent him from testifying at trial but is unsuccessful, forfeiture by wrongdoing does not apply (assuming that William does indeed testify at the arson trial). So, the way that I see it, forfeiture requires both intent and profitability (or, as some put it, intent and causation). As I noted in my post today (9/11), however, if this is the case, it could cause problems for the transferred intent doctrine of forfeiture by wrongdoing.
Posted by: Colin Miller | Sep 11, 2012 10:45:34 AM
I think you and I agree Colin but we are using different language to express it. Let's use an example.
Dan is arrested for crime A. He suspects that Suzy (who is the only witness to crime A) is going to testify against him so he forms a plan to kill her and implements that plan. Now, the first possible outcome is that he fails and Suzy lives. In this case there is no issue with a FBW or even a confrontation right issue because she lives to testify against him regarding crime A and he can confront her. The second possible outcome is that he succeeds in his plan and she dies. Since she was the only witness to A the prosecutor drops those charges and instead charges him with murder of Suzy, crime B. The prosecutor wants to admit statements by Suzy from crime A into the trial of crime B and claims FBW because Dan intended to kill Suzy precisely to stop her testimony.
Now, as the concurrence in Giles recognized this strategy by the prosecutor creates a logical circularity. The way out of this circularity is intent; it's not "profitability." Logically, profitability is a premise to the argument and not a conclusion from the facts. Why? The prosecutor defines Suzy as a witness. The prosecutor is always going to argue that the defendant profited from the absent witness because if the prosecutor didn't believe the defendant would benefit from the absence of Suzy why would he have intended to call her as an adverse witness in the first place. If Dan truly believes that Suzy's testimony helps his case he wouldn't object to the admissions of her statements.
So the only question that leaves us with is what was Giles intent and what evidence counts towards coming to an official judgement determining Dan's intent. In addressing that question we know that the witness is absent tells us nothing about Dan's intent. The fact that there was a prior issue between Dan and Suzy is, alone, not enough to prove intent. We know that because those were both present in Giles and Giles won. The prosecutor has to prove something more than (a) Dan made Suzy go away and (b) Suzy going away helped Dan's case. That something more is intent.
How we determine that intent is the 64K question. I actually have some sympathy for the court in Banos. There is at least some circumstantial evidence in that case that Banos intended to make the witness disappear, unlike Giles who could plausibly claim self-defense.
Posted by: Daniel | Sep 11, 2012 1:15:06 PM
Daniel: Yes, this makes sense. Here is the relevant language from Justice Scalia:
The State and the dissent note that common-law authorities justified the wrongful-procurement rule by invoking the maxim that a defendant should not be permitted to benefit from his own wrong. See, e.g., G. Gilbert, Law of Evidence 140–141 (1756) (if a witness was “detained and kept back from appearing by the means and procurement” testimony would be read because a defendant “shall never be admitted to shelter himself by such evil Practices on the Witness, that being to give him Advantage of his own Wrong”). But as the evidence amply shows, the “wrong” and the “evil Practices” to which these statements referred was conduct designed to prevent a witness from testifying. The absence of a forfeiture rule covering this sort of conduct would create an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them. There is nothing mysterious about courts' refusal to carry the rationale further. The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to “dispensing with jury trial because a defendant is obviously guilty.” Crawford, 541 U.S., at 62, 124 S.Ct. 1354.
Posted by: Colin Miller | Sep 11, 2012 4:53:45 PM