- United States
Indicted for conspiracy to possess marijuana and cocaine with
intent to distribute.
Jury failed to reach a verdict.
Billy Scott (Robert’s Bother)
Molly Rahar (Billy’s girlfriend)
Billy was unreliable and stole
Replaced with Shawn Jones and Tim Burnett.
Shawn Jones’s Grand Jury Testimony
Confirmed that Robert Scott’s money
man was Billy Scott.
Also accept large amount of money
from Robert Scott for the purposes
of buying drugs.
After arrest Robert Scott became friends with Billy Chance
Chance testified that Scott told him that Billy Scott and Rahar
had been going to Chicago
three or four
times a month and
buying drugs for him from Kelsay.
Scott said that he had Jones take
over the drug runs after Billy started ripping him
He would give Jones $ 10,000 - $
15,000 for the drugs, which Jones would deliver to
Scott also showed Chance a list of
phone calls the government was going to use against
He told Chance the calls were "about the
drug transactions that Jones had made."
Robert Scott – Challenges the admission of Shawn Jones
Shawn Jones – Unavailable for second trial
District court admitted the grand jury testimony after holding
an evidentiary hearing.
Two Independent hurdles to admit out-of-court statement in
There are two independent hurdles to admitting out-of-court
statements in federal courts,
the Sixth Amendment's Confrontation Clause and
the Federal Rules of Evidence.
It is well-established that a defendant forfeits his
Confrontation Clause rights by wrongfully procuring the
unavailability of a witness.
804(b)(6) - Forfeiture by wrongdoing
(b) Hearsay exceptions.
The following are
by the hearsay rule
if the declarant is
as a witness:
(6) Forfeiture by wrongdoing.
A statement offered against a party that has
engaged or acquiesced in wrongdoing
that was intended to, and did, procure the unavailability of the
declarant as a witness.
Forfeiture Elements to admit a statement against the Df, the
government must show
that the defendant engaged or acquiesced in wrongdoing,
that the wrongdoing was intended to procure the declarant's
that the wrongdoing did procure the unavailability.
The district judge required the government to establish these
elements by a preponderance
of the evidence.
Evidentiary Hearing – Scott’s interactions with Jones
The government offered different pieces of evidence regarding
Scott's interactions with Jones.
Transcripts of phone conversations
between Scott and Jones occurring in 1998 while
Jones was incarcerated and
Scott was the target of a grand jury
It also offered prison records showing that Scott and his wife
visited Jones in prison in February 1998.
Second, it offered testimony that Scott and his wife
gave Jones $ 200 and gave
his son a toy laptop computer for Christmas in 1998.
Third, it offered the testimony of Mr. Chance, who we recall was
in the same cellblock
with Jones at Sangamon in the spring
Chance and Scott
were on the same cellblock
in the fall of 1999 and
shared a cell for a few days.
Chance testified to their interactions.
After Scott’s Arrival Jones seemed nervous and frightened
Jones said he would have to testify against Scott.
Jones told Chance that he had a lot lose and he had to protect
Chance observe both Jones and Scott communicate in adjacent cell
Threatening Statement - he'd keep his mouth shut
Scott said that "if [Jones]
knew what was good for him, he'd keep his mouth shut"
and that Jones "better not
testify if he knew what was good for him."
Scott knew government approached Jones
Scott also told Chance that he learned from his lawyer that the
government had approached Jones and told him that it would drop
his contempt charges and further reduce his sentence if he
Jones looked nervous when Chance asked questions on Scott’s
When Chance brought up the subject, Jones "looked
real nervous and scared."
Scott seemed relieved
Afterwards, Scott was "happy" and "seemed relieved that Jones
wasn't going to testify."
First Element - that the defendant
engaged or acquiesced in
Wrongdoing need not consist of a criminal act.
Scott Argues - his actions were not sufficiently evil
Scott argues his actions were not sufficiently evil because they
were not akin to murder, physical assault, or bribery.
– His acts were consistent with wrongdoing
Coercion, uninfluenced or pressure
The rule contemplates
application against the use of
coercion, undue influence, or
pressure to silence testimony and impede the truth-finding
function of trials.
Threats or suggestions of future harm
We think that applying pressure on a potential witness not to
testify, including by
threats of harm and suggestions of future retribution, is
– Battle of Inferences
District court was right to infer that Scott coerced Jones.
Scott told Chance was he intended to do. Scott told Chance to
tell Jones to keep his mouth shut.
Scott had golden opportunity to coerce Jones. (20 minute
conversation in the library).
Scott was happy after meeting with Jones, because Jones said he
would not testify.
Second Element: wrongdoing was intended to procure the
- The evidence is clear.
Chance testified that Scott threatened that Jones "better not
testify if he knew what was good for him."
Moreover, Scott wanted access to the law library to "make sure"
that Jones would not testify.
The district judge properly found that Scott's wrongdoing was
intended to procure Jones' unavailability.
Third Element: the wrongdoing did procure the unavailability
– close issue, but did not clearly error
This is another close issue.
Jones first refused to testify in January 1999 when he appeared
again before Scott's grand jury.
Thus, it may be difficult for the government to show that
Scott's conduct at Sangamon procured Jones' unavailability since
Jones had refused to testify over 8 months earlier.
Scott knew government was going to call Jones to testify
Scott sent messages through Chance to Jones.
Scott event went out of his want to talk to Jones.
Scott was relieved after he learned Jones would not testify.
Jones reasoning, for which he had not relied on before, was for
religious and moral purposes.
Scott Argues - probative value was substantially outweighed by
The probative value of Jones’ testimony was substantially
outweighed by unfair prejudice under Federal Rule of Evidence
Scott asserts that he was incriminated by unreliable evidence.
- 804(b)(6) does not require cross-examination
The whole point of Rule 804(b)(6) is to admit evidence without
cross-examination because, by a defendant's wrongdoing, he
forfeits his right to challenge the receipt in evidence of the
The judgment of the district court is