4th Circuit Deals With Intersection Between Co-Conspirator Liability & Forfeiture by Wrongdoing in Thanksgiving-Related Case

Federal Rule of Evidence 804(b)(6) contains 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.

This "forfeiture by wrongdoing" hearsay exception is effectively a witness tampering rule. Imagine, for instance, that Erica tells police that she saw Dan murder Vince and later turns up dead herself. If the prosecution can prove that Dan killed Erica, or arranged to have her killed, so she couldn't testify agains him, Erica's statement to the police would be admissible against Dan at his trial for murdering Vince. But what if Dan is part of a continuing conspiracy, with a co-conspirator killing Erica after Dan is already in jail? This was the question addressed by the Fourth Circuit in United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012).

In Dinkins, "[i]n 2003, the Baltimore City Police Department conducted an investigation of a local organization commonly known as 'Special,' whose members were suspected of distributing large amounts of narcotics in the Bartlett neighborhood of Baltimore." That investigation led to James Dinkins being charged with several crimes related to Special's drug-trafficking organization. At trial, the prosecution used Federal Rule of Evidence 804(b)(6) to introduce statements made by John Dowery, who was killed on Thanksgiving by two other members of Special.

In reviewing this decision on appeal, the Fourth Circuit held that

We have not yet considered the question whether hearsay statements may be admitted under the forfeiture-by-wrongdoing exception pursuant to a conspiracy theory of liability, when a defendant's co-conspirators engaged in the wrongdoing that ultimately rendered the declarant unavailable as a witness. We now conclude that traditional principles of conspiracy liability are applicable within the forfeiture-by-wrongdoing analysis....

In the present case, the evidence showed that the murder of Dowery 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. The allegation that Dinkins, Gilbert, and Goods were members of Special, a narcotics trafficking organization in Baltimore, was well supported by the record.

 

Dowery was a government informant who had testified against Parker and Love, who were also members of Special, at their trial on charges of murdering Wise. Because Dowery had substantial knowledge about the operations of Special, which he was willing to provide to law enforcement officers, he posed a continuing liability to members of Special. Also, the evidence showed that it was common knowledge that Dowery was a government informant, and that Dinkins and other members of Special “targeted” government informants. Included in this evidence was the fact that Dinkins killed Jemmison because he was cooperating in a government investigation.

 

After Dowery provided various information to law enforcement officers, Dinkins and co-conspirator Damien West attempted to murder Dowery in October 2005, and succeeded in shooting him several times. When Dinkins learned that Dowery had not died as a result of his wounds, Dinkins stated that he and West had “to go to the hospital to finish him off.” These actions substantiate the ongoing nature of Special's scheme to murder Dowery.

 

Although Dinkins was incarcerated shortly after the murder attempt, threats of violence against Dowery continued to be made by members of Special. Gilbert, the leader of Special, was able to communicate a threat to Dowery even after he and his family were relocated for their safety. Finally, evidence showed that Gilbert and Goods shot Dowery, in what can only be considered a targeted killing, immediately upon Dowery's return to the Bartlett area in November 2006.

Dowery's murder certainly was reasonably foreseeable to Dinkins, in view of the fact that he and co-conspirator West nearly had succeeded in murdering Dowery the year before, and had manifested the intent to “finish the job.” And, in view of other evidence in the record establishing a pattern of intimidation and violence with respect to government informants by members of Special, we consider that Dowery's ultimate murder was a natural consequence of the ongoing conspiracy....Lastly, the record is clear that Dinkins' acts of wrongdoing, as well as those of his co-conspirators, were intended to prevent, and in fact did prevent, Dowery from testifying....Therefore, we conclude that the district court properly admitted the Dowery hearsay statements against Dinkins under the forfeiture-by-wrongdoing exception to the Confrontation Clause pursuant to Pinkerton principles of conspiratorial liability. 

-CM