217 F.3d 811 (10th Cir. 2000), 99-7019, United States v Cherry

Docket Nº:99-7019
Citation:217 F.3d 811
Party Name:UNITED STATES OF AMERICA, PLAINTIFF - APPELLANT, v. MICHELLE CHERRY; LADONNA GIBBS; TERESA PRICE, ALSO KNOWN AS TERESA BROWN; SONYA PARKER, DEFENDANTS - APPELLEES, AND JOSHUA PRICE, JR., ALSO KNOWN AS LIL' JUNE, ALSO KNOWN AS JUNE, ALSO KNOWN AS JUNE ANDERSON, DEFENDANT
Case Date:June 12, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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217 F.3d 811 (10th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLANT,

v.

MICHELLE CHERRY; LADONNA GIBBS; TERESA PRICE, ALSO KNOWN AS TERESA BROWN; SONYA PARKER, DEFENDANTS - APPELLEES,

AND

JOSHUA PRICE, JR., ALSO KNOWN AS LIL' JUNE, ALSO KNOWN AS JUNE, ALSO KNOWN AS JUNE ANDERSON, DEFENDANT

No. 99-7019

United States Court of Appeals, Tenth Circuit

June 12, 2000

        Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 98-CR-10-S)

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[Copyrighted Material Omitted]

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        Sean Connelly, U.S. Department of Justice (Bruce Green, United States Attorney, and Dennis A. Fries, Assistant United States Attorney, with him on the brief), Denver, Colorado, appearing for the appellant.

        Charles Whitman, Tulsa, Oklahoma, appearing for the appellees.

        Before Lucero, Holloway and Murphy, Circuit Judges

        ORDER

        This matter is before the court on appellees' combined petition for rehearing and rehearing en banc and appellant's response. The panel has voted to grant rehearing pursuant to Fed. R. App. P. 40(4)(C) for the limited purpose of amending the majority opinion to eliminate the second sentence of footnote one on page four of the majority opinion filed on May 2, 2000, currently reading "Joshua was tried and convicted of the first-degree murder of Lurks." The petition in all other respects is denied. A revised opinion is attached to this order.

        The suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed. R. App. P. 35. At the request of Judge William J. Holloway, pursuant to Fed. R. App. P. 35(f), a poll was taken, and following that vote, rehearing en banc is denied pursuant to Fed. R. App. P. 35(a).

        Lucero, Circuit Judge.

        This interlocutory appeal from the district court's grant of a motion to suppress out-of-court statements made by a murdered witness requires us to address the difficult question of how the doctrine of waiver by misconduct and Fed. R. Evid. 804(b)(6) apply to defendants who did not themselves directly procure the unavailability of a witness, but allegedly participated in a conspiracy, one of the members of which murdered the witness. Exercising jurisdiction pursuant to 18 U.S.C. § 3731, we conclude that co-conspirators can be deemed to have waived confrontation and hearsay objections as a result of certain actions that are in furtherance, within the scope, and reasonably foreseeable as a necessary or natural consequence of an ongoing conspiracy. We therefore remand to the district court for findings under our newly-enunciated standard.

        I.

        The government charged five defendants with involvement in a drug conspiracy: Joshua Price ("Joshua"), Michelle Cherry, LaDonna Gibbs, Teresa Price ("Price"), and Sonya Parker. Much of the evidence in their case came from a cooperating witness, Ebon Sekou Lurks. Prior to trial, however, Lurks was murdered. The government moved to admit out-of-court statements by Lurks, pursuant to Fed. R. Evid. 804(b)(6), on the grounds that the defendants wrongfully procured Lurks's unavailability.

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        In support of their motion, the government offered the following evidence. Lurks's ex-wife told Joshua of Lurks's cooperation with the government in retaliation for his obtaining custody of the Lurks' children. After this, Lurks reported being followed by Joshua and by Price. Approximately one week later, Price arranged to borrow a car from a friend, Beatrice Deffebaugh, explaining that she wanted to go on a date with another man without attracting her steady boyfriend's notice by using her usual car. So that Deffebaugh could pick up her children after work, Price loaned her another car, one that Deffebaugh described to an investigating agent as belonging to Gibbs. Joshua picked up Deffebaugh's car, which a witness noticed near Lurks' home at around 10 p.m on January 28, 1998. One of Joshua's girlfriends, Kenesha Colbert, testified to receiving a call from him around 10:40 p.m. and hearing Price's voice singing in the background.

        Around 11 p.m., several shots were fired in the vicinity of Lurks's home. Two witnesses saw a tall, thin black man (a description consistent with Joshua Price's appearance) chasing a short, stout black man (a description consistent with Lurks's appearance). Another witness stated she saw a car in the vicinity of Lurks's home, resembling the one borrowed by Joshua and Price, immediately after hearing shots fired. Additionally, one witness reported a license plate for the vehicle identical to that of the vehicle borrowed from Deffebaugh, save for the inversion of two digits. Police found Lurks's body not long after midnight. Price returned the borrowed car to her friend between midnight and 12:30 a.m on January 29, 1998. Further investigation discovered physical evidence linking Joshua to the murder: "debris" on Joshua's tennis shoes matching Lurks's DNA.

        The district court held that Joshua procured the absence of Lurks and hence Lurks's statements were admissible against him.1 It held, however, that there was insufficient evidence that Price procured Lurks's absence and "absolutely no evidence [that Cherry, Gibbs, and Parker] had actual knowledge of, agreed to or participated in the murder of... Lurks." United States v. Price, No. CR-98-10-S, order at 17 (E.D. Okla. Jan. 14, 1999). The district court therefore refused to find that those defendants had waived their Confrontation Clause and hearsay objections to the admission of Lurks's statements. See id. at 17-20.

        II.

        "We review a trial court's evidentiary decisions for abuse of discretion. However, we subject to de novo review a trial court's legal conclusions about the Federal Rules of Evidence and the Confrontation Clause." United States v. Torrez-Ortega, 184 F.3d 1128, 1132 (10th Cir. 1999) (citing United States v. Knox, 124 F.3d 1360, 1363 (10th Cir. 1997); Reeder v. American Econ. Ins. Co., 88 F.3d 892, 894 (10th Cir. 1996); Matthews v. Price, 83 F.3d 328, 332 (10th Cir. 1996)). "Because evidentiary rulings are within the sound discretion of the district court, this court will reverse only upon a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances. A district court abuses its discretion if its decision is based upon an error of law." United States v. Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999) (internal quotations and citations omitted).

        A. Rule 804(b)(6) and the Waiver by Misconduct Doctrine

        The Confrontation Clause of the Sixth Amendment protects a criminal defendant's "fundamental right" to confront

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the witnesses against him or her, including the right to cross-examine such witnesses. Pointer v. Texas, 380 U.S. 400, 404 (1965). "There is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege." Brookhart v. Janis, 384 U.S. 1, 4 (1966) (internal quotations and citations omitted).

        The Supreme Court has held repeatedly that a defendant's intentional misconduct can constitute waiver of Confrontation Clause rights. See, e.g., Douglas v. Alabama, 380 U.S. 415, 420 (1965); Snyder v. Massachusetts, 291 U.S. 97, 106 (1934), overruled on other grounds by Mallory v. Hogan, 378 U.S. 1 (1964); Reynolds v. United States, 98 U.S. 145, 158-59 (1878). We have applied this principle to conclude that a defendant can waive confrontation rights by threatening a witness's life. See United States v. Balano, 618 F.2d 624, 628-30 (10th Cir. 1979), overruled on other grounds by Richardson v. United States, 468 U.S. 317, 325-26 (1984). "To permit the defendant to profit from such conduct would be contrary to public policy, common sense and the underlying purpose of the confrontation clause." Id. at 629 (quoting United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1977)); accord United States v. White, 116 F.3d 903, 911 (D.C. Cir. 1997); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir. 1996); United States v. Rouco, 765 F.2d 983, 995 (11th Cir. 1985); United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir. 1982); Steele v. Taylor, 684 F.2d 1193, 1202 (6th Cir. 1982); United States v. Thevis, 665 F.2d 616, 630 (5th Cir. Unit B 1982).

        The recently-promulgated Rule 804(b)(6) of the Federal Rules of Evidence represents the codification, in the context of the federal hearsay rules, of this long-standing doctrine of waiver by misconduct. Rule 804(b)(6) provides that the rule excluding hearsay does not apply to the following:

        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.

        Fed. R. Evid. 804(b)(6). Although prior to Rule 804(b)(6), there was disagreement as to the proper burden of proof in making a showing of waiver by misconduct, compare Houlihan, 92 F.3d at 1280, with Thevis, 665 F.2d at 631, it was established in this Circuit that,...

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