United States v. Smith, 15–2005.

• Decision Date: 11 March 2016
• Docket Number: No. 15–2005.,15–2005.
• Citation: 816 F.3d 479
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Derrick SMITH, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

816 F.3d 479

UNITED STATES of America, Plaintiff–Appellee,

v.Derrick SMITH, Defendant–Appellant.

No. 15–2005.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 26, 2016.

Decided March 11, 2016.

Michael T. Donovan, Marsha A. McClellan, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Derrick Smith, Dolton, IL, pro se.

Samuel E. Adam, Attorney, Victor P. Henderson, Attorney, Henderson Adam, LLC, Chicago, IL, for Defendant–Appellant.

Before POSNER, FLAUM, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

In March 2011 Derrick Smith was appointed to the Illinois House of Representatives to complete an unfinished term. He wanted to be elected in his own right, which meant that he had to campaign in his party's primary, set for March 2012. One of his campaign assistants, known to Smith as "Pete," alerted the FBI that Smith might be corrupt. Pete (whose last name has been kept confidential) began recording some of his conversations with Smith. At the FBI's suggestion, Pete told Smith that a woman who lived in his district would provide $7,000 (money that would help Smith pay his campaign staff) if Smith wrote a letter supporting her application for a grant from the state's Capital Development Board for the construction of a daycare center. This was a sting; there was no such woman, and the money would come from the FBI.

Letters of recommendation from one public official to another are common and lawful—unless paid for. The exchange of an official act for money violates federal law, no matter how the recipient uses the cash. See, e.g., Evans v. United States, 504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992) ; McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991) ; United States v. Blagojevich, 794 F.3d 729 (7th Cir.2015). Smith wrote the letter, and Pete handed over $7,000. Smith immediately used some of the money to pay his campaign staff; a search of his home turned up the rest.

At Smith's trial for violating 18 U.S.C. §§ 666(a)(1)(B) and 1951, the prosecutor introduced the recorded conversations with Pete. The jury convicted, and the judge sentenced Smith to five months' imprisonment and one year's supervised release. Neither side called Pete as a witness: he was a shady character and may have been stealing from the FBI in addition to assisting it. Pete said that he would not testify, asserting his constitutional privilege not to be compelled to incriminate himself. Since the prosecutor did not want Pete's testimony, he did not ask the court to grant use immunity; defense counsel did not call Pete to see whether the district judge would honor his assertion of the privilege. (It is easy to imagine lines of questioning whose answers could not incriminate Pete.)

The sole argument Smith makes on appeal is that, with Pete not in court, the use of his recorded statements violated the Confrontation Clause of the Sixth Amendment. It is unclear why Smith casts this as a constitutional argument rather than as one based on the hearsay doctrine. See United States v. Walker, 673 F.3d 649, 659–61 (7th Cir.2012) (concurring opinion). The hearsay rule excludes out-of-court statements offered for their truth. See Fed.R.Evid. 801(c). (There are exceptions, but the United States does not argue that any applies.)

The Confrontation Clause, by contrast, affects only "testimonial" statements. See, e.g., Ohio v. Clark, ––– U.S. ––––, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015) ; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Indeed it covers only a subset of testimonial hearsay. Statements that would have been admissible at common law in 1793 (in other words, statements that are not hearsay or are covered by longstanding exceptions to the hearsay doctrine) are outside the Sixth Amendment, see Giles v. California, 554 U.S. 353, 358–59, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), as are all statements by witnesses who are available for cross-examination, see Crawford, 541 U.S. at 60 n. 9, 124 S.Ct. 1354. And Clark shows that the Court has not yet decided whether the Confrontation Clause covers testimonial statements by one private party to another. Thus if a statement is not hearsay, because not offered for its truth, it also is not "testimonial" for the purpose of the Confrontation Clause.

The district judge admitted Pete's recorded statements after concluding that they helped to put Smith's recorded statements in context. Smith maintains that Pete's statements do more than put his own in context—and that even if just used for context they are inadmissible because Pete said much more on the recordings than Smith did. It is easy to find statements in judicial opinions discussing whether statements have been used for "context" and commenting on the relative length of different speakers' statements, but those observations must not be understood to displace the legal standards—for hearsay whether the out-of-court statement is offered for truth, and for the Confrontation Clause whether the out-of-court statement is testimonial.

To see this, consider a simple hypothetical. "Pete: I will pay you $7,000 in exchange for a letter my client can use to seek a grant for a daycare...