EvidenceProf Blog

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

Wednesday, November 28, 2012

The Statement Doesn't Speak For Itself: Central District Of California Finds Statement Itself Not Enough To Trigger Forfeiture By Wrongdoing

Federal Rule of Evidence 801(d)(2)(C)-(E) provides that

A statement that meets the following conditions is not hearsay:....

The statement is offered against an opposing party and:....

(C) was made by a person whom the party authorized to make a statement on the subject;  

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or  

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Rule 801 then goes on to provide that

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

For instance, assume that Carl says to Fred, "Dan and I have agreed to rob the bank on State Street. WIll you drive the getaway car?" If the prosecution seeks to introduce this statement as a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), Carl's statement must be considered but does not by itself establish that he is Dan's co-conspirator. Instead, the prosecution would have to prove that conspiracy through some other evidence.

So, does similar logic apply to the doctrine of forfeiture by wrongdoing? According to the recent opinion of the United States District Court for the Central District of California in U.S. v. $1,026,781.61 in funds from Florida Capital Bank, 2012 WL 5878379 (C.D.Cal. 2012), the answer is "yes."

The proceedings in the case "relate[d] to the Government's claim that Lonnie Kocontes murdered Micki Kanesaki during a Mediterranean cruise the couple took in May 2006." To prove this murder, the prosecution sought to introduce an e-mail from Kanesaki to Sue White, Kanesaki's former co-worker at the law firm where she was working when she met Kocontes.

In the email, Kanesaki stated she was unhappy with Kocontes, and then on the subject of finances, she wrote:  

After the past few weeks of arguing with LK [Kocontes], I have decided to cut-off his access to my parents' money. He even tries to control their money. You know they asked me to hold on to it and I can use it for safer investments. They know that the amount of money they have may not last for the rest of their lives, so they moved into that retirement place because they don't want to burden me-and asked me to hold/utilized the money for their and my benefit. I'll be dammed if I'm going to let LK tell me how I should invest/spend my parents' money. He tells me, we should invest it so we can have more money when we retire. Yeah right, you mean so he can have more money and access to my parents' money? ? ?!!!  

I really understand why you and many others keep their money separate from their spouses. Money and infidelity = No. 1 reasons for marriage dissolution.  

You know, I can't even buy any big ticket items because LK doesn't want to spend the money-and we can afford it and we would be paying cash. Spending the money doesn't affect our financial ability to save for our future, or meet our expenses in life. He just cant part with the because it would decrease the balance. I have to put up a big fights/arguments before I can buy anything for my house. The fighting takes all the fun out of my home projects...."

The prosecution tried to admit this e-mail under the doctrine of forfeiture by wrongdoing, and I'm not sure how the e-mail could have been introduced in compliance with the Supreme Court's opinion in Giles v. California. But that wasn't the issue flagged by the Central District of California. Instead, the court found that

the question of whether Kanesaki's email can be admitted is the same as the ultimate issue of this forfeiture action-whether the Government can establish, by a preponderance of the evidence, that Kocontes murdered Kanesaki. The Government may not use the circular argument that Kanesaki's email is evidence that Kocontes murdered Kanesaki, and that the email is admissible because of the same.

The facts in this case are a bit strange, but I think that what the court is saying is as follows: Assume that Dan is on trial for robbery. WIlliam is a prospective witness against Dan. William is shot and either (a) before the shooting had said, "I think Dan is going to kill me," or (b) after the shooting says, "Dan shot me." In essence, what I think that the court is saying is that William's statement, while some evidence that Dan shot William to prevent him from testifying, is not sufficient, in and of itself, to trigger application of the doctrine of forfeiture by wrongdoing. Instead, the prosecution would have to present some other evidence to trigger application of forfeiture by wrongdoing.



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But....in this case there appears to be no evidence at all that Lonnie had any motive to prevent Micki from testifying against him in some proceeding. If the goverment's theory is true, he killed her for money, not to prevent her from testifying. Therefore, the quantum and quality of the evidence is irrelevant because 804(b)(6) doesn't apply.

Further, I think the court is wrong on the issue you raise if the court is saying what you believe it is saying. I think a decedent's statement of who mortally wounded him and why is sufficient evidence under 104(a) to establish the predicate for the application of 804(b)(6). 104(a) permits pure bootstrapping and the hearsay rules are inapplicable. I see nothing in the rules or the case law that would require more, except as indicated in 801(e)(2).

Fred Moss

Posted by: Fred Moss | Nov 29, 2012 1:01:44 PM

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