United States v. Scott, 284 F.3d 758 

U.S. Court of Appeals for the Seventh Circuit

2002

Chapter

7

Title

Hearsay and Constitutional Issues

Page

334

Topic

804(b)(6) - Forfeiture by wrongdoing

Quick Notes

Robert Scott and others were indicted for conspiracy to possess marijuana and cocaine with intent to distribute.  Robert Scott coerced (better not testify if he knew what was good for him) and unduly influenced Jones not to testify against him.

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.

Court – 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 wrongdoing.

804(b)(6) - Forfeiture by wrongdoing

·         (b) Hearsay exceptions.

o    The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

·         (6) Forfeiture by wrongdoing.

o    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

(1)   that the defendant engaged or acquiesced in wrongdoing,

(2)   that the wrongdoing was intended to procure the declarant's unavailability, and

(3)   that the wrongdoing did procure the unavailability.

·         The district judge required the government to establish these elements by a preponderance of the evidence.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

·         Whether it is wrongdoing to put undue influence on somebody to not testify?  Yes.

Procedure

Trial

·         Appellant criminal defendant was convicted by the United States District Court for the Central District of Illinois of conspiracy to possess marijuana and cocaine with intent to distribute.

Appellant

·         Affirmed

Facts

Discussion

Key Phrases

Rules

Pl - United States

Df - Scott

Indictment

·         Indicted for conspiracy to possess marijuana and cocaine with intent to distribute.

First Trial

·         Jury failed to reach a verdict.

·         Mistrial.

Second Trial

·         Convicted

Conspiracy Players

·         Robert Scott

·         Billy Scott (Robert’s Bother)

·         Molly Rahar (Billy’s girlfriend)

·         Tim Burnett

Drug Supplier

·         Charles Kelsay

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 off.

·         He would give Jones $ 10,000 - $ 15,000 for the drugs, which Jones would deliver to him.

·         Scott also showed Chance a list of phone calls the government was going to use against him.

·         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 federal court

·         There are two independent hurdles to admitting out-of-court statements in federal courts,

1. the Sixth Amendment's Confrontation Clause and
2. 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.

o    The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

·         (6) Forfeiture by wrongdoing.

o    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

(1)   that the defendant engaged or acquiesced in wrongdoing,

(2)   that the wrongdoing was intended to procure the declarant's unavailability, and

(3)   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 investigation.

o    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 of 1999;

·         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 himself.

·         Chance observe both Jones and Scott communicate in adjacent cell blocks.

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 testified.

Jones looked nervous when Chance asked questions on Scott’s behalf

·         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

·         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.

Court – 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 wrongdoing.

Court – Battle of Inferences

·         District court was right to infer that Scott coerced Jones.

1.     Scott told Chance was he intended to do.  Scott told Chance to tell Jones to keep his mouth shut.

2.     Scott had golden opportunity to coerce Jones.  (20 minute conversation in the library).

3.     Scott was happy after meeting with Jones, because Jones said he would not testify.

Second Element: wrongdoing was intended to procure the declarant's unavailability

Court - 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

Court – 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 unfair prejudice

·         The probative value of Jones’ testimony was substantially outweighed by unfair prejudice under Federal Rule of Evidence 403.

·         Scott asserts that he was incriminated by unreliable evidence.

Court - 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 statements.

The judgment of the district court is AFFIRMED

Rules

804(b)(6) - Forfeiture by wrongdoing

·         (b) Hearsay exceptions.

o    The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

·         (6) Forfeiture by wrongdoing.

o    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

(1)   that the defendant engaged or acquiesced in wrongdoing,

(2)   that the wrongdoing was intended to procure the declarant's unavailability, and

(3)   that the wrongdoing did procure the unavailability.

·         The district judge required the government to establish these elements by a preponderance of the evidence.

Class Notes