Truth And Consequences

The Support Staff

We’d be even more confused by the legal wrangling if we didn’t have the help of Intern Sean.  A recent law school grad from the area, Sean found us in a serendipitous way, by trawling through wiki for unsolved murders one day.  That took him to Robert’s page and then to wmrw.com. 

The timing was good, we had just listed that we were looking for an intern to help get us through the trial.  Sean has been a steady presence in Moultrie these past two weeks, and today he weighs in on the evidentiary balancing act that Judge Lynn Leibovitz is doing in this joint trial.  “Mental gymnastics,” as she calls it.  While studying for the bar this weekend, Sean turned his attention here:

We’ve been hearing a lot in court about the statements of the three defendants that the government will try to introduce as evidence, and about whether the prosecution wants them in “for truth” or “not for truth.”  What’s the difference and why does this matter?

Generally, according to the rules of evidence, an out of court statement, if offered for truth – that is, to show that the content of the statement is true – is hearsay.  Even if, say, the statement were made under oath under penalty of perjury before a grand jury, if it isn’t made on the witness stand in that trial, it’s hearsay if it’s offered for truth.   And of course, the general rule is that hearsay is not admissible as evidence.  Now, that general rule doesn’t mean that hearsay is always inadmissible, of course.  There are a myriad of hearsay exceptions, describing circumstances under which hearsay can be admitted and when out of court statements are not hearsay.

Now, for the majority of the defendants’ statements, the prosecution doesn’t want them in for truth.  For example, when the defendants are talking to police about an intruder going into the house, the prosecution wants the statements not to show that there actually was an intruder, but simply to show that Price, Ward, and Zaborsky actually did make those statements (and lied to the police in doing so).  And so, these statements are being introduced “not for truth” and are not hearsay.

But the prosecution does want to introduce some of the statements for truth.  Why?  From what we’ve seen in court so far, they want to use the defendants’ statements that they were home when Robert was murdered to show that, well, they were home when Robert was murdered.   Now, nobody seems to be seriously contesting this, at least from what we’ve seen so far, but “everybody basically knows this is true” is not actually evidence that something is true, and the prosecution needs to show through evidence that it is true.  And so, the prosecution wants to find a way to get those statements in.  

More on how they might do this after the jump.


So how can the prosecution get the defendants’ statements that they want in “for truth” in?  Well, I am not a lawyer and this entire post is merely my personal speculation, not an expert, authoritative, professional, or legal opinion in any way, but here’s one possibility that seems to be playing out right now in Judge Leibovitz’s court.

The evidence rules say that “admissions of party opponents” are not hearsay.  So, because they’re trying to get the defendants’ own statements in, the prosecution’s home free, right?  Not quite.  Although this is one trial, there are three cases – United States v. Joseph Price, United States v. Dylan Ward, and United States v. Victor Zaborsky.  So Price is the party opponent of the prosecution in United States v. Joseph Price but not in United States v. Victor Zaborsky or United States v. Dylan Ward.   And if Price said “we were in the house” then that statement can come in against Joe as an admission of a party opponent in his case, but it can’t come in against either Victor or Dylan in their cases.  And so on for the rest of the defendants.    

And there’s more.  That the statements of each of the defendants potentially implicate all three of them (since “we were in the house” indicates all three were in the house, for example) but can only come in against one of them, the one who actually said the statement, presents further complications.  The rules of evidence are one thing, but there’s also the confrontation clause, the rules of criminal procedure, and the thicket of cases that Judge Leibovitz has referenced.

The Sixth Amendment states that criminal defendants have the right “to be confronted with the witnesses against [them].”  In Bruton v. United States, much like this case, a defendant, Bruton, was tried along with a co-defendant, Evans, and the prosecutors there attempted to admit statements made by Evans that implicated Bruton.  The statements were, for the reasons discussed above, admitted as evidence against Evans but not Bruton and the trial judge told the jury to disregard the statements with regard to Bruton, who was convicted.  But the Supreme Court said that the high risk that a jury would ignore the jury instructions made the admission of those statements against Bruton a violation of the confrontation clause, and reversed Bruton’s conviction.   Redaction of the statements at issue, however, could potentially be an acceptable way of addressing this issue.

There’s also Crawford v. Washington, and Davis v. Washington, a pair of subsequent Supreme Court cases which say that the admission of “testimonial” hearsay without the defendant having had a chance for prior cross-examination is always a violation of the confrontation clause, and that the confrontation clause only applies to “testimonial” hearsay, respectively. 

So, what does this all mean?  On Friday, Judge Leibovitz mentioned Thomas v. United States, an opinion issued by the D.C. Court of Appeals (which is binding on her), as providing the current standard on these issues.  The opinion also provides a good explanation of and a solid application of all these concepts.   According to Thomas, whenever a defendant’s testimonial out-of-court statement implicates a co-defendant, it must be redacted if the prosecution wants to use it in a joint trial, even though it is admissible against the defendant who made the statement, thanks to Bruton. 

On the other hand, if the statement is non-testimonial, thanks to Crawford and Davis, Bruton does not apply and neither does the confrontation clause.  As for what is “testimonial” and what is “non-testimonial”?  Thomas says that:  [F]or a statement to be “testimonial,” it must be “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,'” [quoting Crawford] typically for use in the prosecution or investigation of a crime or under “circumstances objectively indicat[ing] that . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” [quoting Davis] “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” [quoting Crawford] (alterations in quotations of Davis are in original of Thomas).

Judge Leibovitz has broken down the statements at issue into categories (for example, videotaped statements to police at VCB, statements to police at Swann Street, statements to civilians, etc.), likely due to the distinction between “testimonial” and “non-testimonial” statements.  And from this, it certainly seems like many of the statements that Kirschner and company want to introduce, such as the defendants’ statements to the police both at VCB and on the scene, would be “testimonial.”

In addition to the confrontation clause, there’s still Carpenter v. United States, another opinion from the D.C. Court of Appeals referenced by Judge Leibovitz.  Carpenter applies Rule 14 of the D.C. Superior Court Rules of Criminal Procedure, which governs situations where a joint trial may cause prejudice.   The case states that even when the constitutional requirements under Bruton and the ensuing cases are met, judges must still evaluate whether there will be prejudice under Rule 14 (such as, for example, when non-testimonial hearsay inculpates a co-defendant).

There’s also the question of whether the government’s proposed redactions are an adequate remedy for the problem of the possibly inculpated co-defendants.  Again, as Judge Leibovitz said, Thomas shines more light on this issue.  Obvious alterations in the statements are not good enough (for example, if a statement by Price that “Victor, Dylan, and I were in the house” became “Redacted, Redacted, and I were in the house.”)  On the other hand, statements with redactions can generally come in so long as they don’t “incriminate a non-declarant co-defendant on its face, either explicitly or by direct and obvious implication.” [Note: the person who made the statement that is hearsay is known as the declarant].  If the statement at issue really is as simple as “we were in the house”, switching the “we” to an “I” would seem, at least to me, to solve the problem.  This guideline applies not only to the confrontation clause concerns, but also the the Rule 14 issues raised by Carpenter.

And there’s one final wrinkle.  The cases cited seem to be premised on the high risk that a jury would not follow instructions to consider a statement against one defendant but to disregard the statement against a co-defendant.  But as we all know, this is a bench trial, and Judge Leibovitz has declared (usually to the amused chuckles of those present) that she has confidence in her ability to follow her own instructions.  Still, she has also said that she will not say that Thomas and Carpenter simply do not apply to bench trials, and that although unlikely, it is possible that she may make a mistake in applying her instructions regarding the evidence.  But if nothing else, the fact that this is a bench trial and likelihood that Judge Leibovitz will follow her own instructions properly does seem to make it far more likely that the prosecution’s redactions will be considered sufficient.

The upshot of all this is the extensive discussions on the admissibility of these statements and the focus on redactions that we’ve seen so far, as well as the judge’s repeated insistence that the prosecution pin down precisely which statements they plan to introduce for truth.  On Friday, AUSA Kirschner stated that a new filing will be forthcoming on Monday that will do just that, and on Tuesday, we’re expected to hear the testimony of Det. Brian Waid as well as some of the statements that the prosecution wants in for truth.  It seems that we’re going to find out how this will all play out when we head back to Moultrie this week.

Ed. note: We’re still looking for full texts of the cases, copyright-free of course.  If anyone has link, we’ll be happy to add or embed the docs.

-posted by Sean

54 comments for “Truth And Consequences

  1. dcbill
    05/31/2010 at 12:48 PM

    What time does the trial resume on Tuesday?

  2. Bill Orange
    05/31/2010 at 12:50 PM

    Okay, I’m still having a hard time tracking this, because I don’t understand why the prosecution doesn’t use this simple solution: Why not just say that you are admitting the defendants statements of their names and addresses “for truth”, and everything else that they’ve said as “not for truth”? The whole point of the prosecution’s case is that the defendants are lying. Why bother trying to cherry pick certain things “for truth” versus “not for truth”? Wone was seen alive by multiple outside witnesses at about 10:30 PM. His body was observed with multiple stab wounds in it at around midnight, and the three defendants were all seen in the house at that time, also by multiple outside witnesses. There are no major inconsistencies between the statements of the three defendants that would imply that one of them is more guilty of the charges than the other two.

    What exactly does the prosecution need to admit “for truth”?

    • Sean
      05/31/2010 at 1:20 PM

      Well, from what they’ve said, the prosecution wants to admit “for truth” the statements that all three Swann Streeters were home when Robert was being murdered. True, everyone saw them at midnight when the police and EMTs arrived. But neither that, nor 10:30 is the critical time when Robert was being murdered and the period immediately after when the conspiracy would have formed and the cover-up occurred. And did anyone see the defendants at home then?

      • Bill Orange
        05/31/2010 at 1:49 PM

        I guess I still don’t follow. My understanding of what you’ve explained is that a statement that is offered “for truth” can be used against all three defendants, whereas a statement that is offered “not for truth” can only be used against the person who actually made the statement.

        I still don’t see why they don’t just bring everything in “not for truth”. Take your example: The prosecution wants to establish that they were all in the house from 10:30 to midnight. But why do they need to use Joe’s statement to show that Dylan and Victor were there, and so on? Joe said Joe was there. Victor said Victor was there. And Dylan said Dylan was there. They all told similar stories, so you don’t need to bring in any statement “for truth” in order to discredit one of the defendants. And if they’re found guilty of obstruction, then the similarity of the stories is enough for the conspiracy charge, since there’s really no other way for three people to come up with the same cover story.

        • Sean
          05/31/2010 at 2:44 PM

          It’s actually the opposite – if offered “not for truth” it can come in against anyone, if offered “for truth” it only comes in against the person who said it (because only that person is the ‘party opponent.’ There’s actually a co-conspirator’s statements exception, but in the motion hearing a few weeks back, Kirschner said they won’t be trying to use that).

          They don’t need to use Joe’s statement to establish Victor and Dylan were there – in fact, they can’t. But Joe’s statement that “we were there” still shows that Victor and Dylan were there unless it’s redacted, and that’s the issue.

          • Bill Orange
            05/31/2010 at 3:41 PM

            Then I still don’t understand why they don’t just bring all of the statements in “not for truth”. I’m not trying to be an asshole here–I really don’t understand. I get that there’s a distinction between “for truth” and “not for truth”, but I don’t understand why the prosecution is trying to make it here. If the whole point of your case is that these three men are lying through their teeth, why bother to pick and choose which statements are “for truth”?

            I also don’t understand all of the mental gymnastics of applying Bruton here. In Bruton, it looks like the court ruled that a jury wouldn’t be able to follow the judge’s instructions. Here, the issue is whether or not a judge will be able to follow her own instructions. And even that seems largely moot to me, because she had already seen most of the tapes, anyway, hasn’t she? It seems like anything offered “for truth” is going to run a VERY high risk of being successfully appealed.

            • Themis
              05/31/2010 at 10:30 PM

              Hearsay, exceptions to hearsay, the definition of hearsay, the Confrontation Clause, statements of co-conspirators in furtherance of a conspiracy are all topics that individually and collectively generate numerous law school finals, bar exam questions,legal articles. As another poster mentioned, many attorneys, especially non-litigators, have difficulty grasping these concepts. And there are many factual nuances that affect the analysis of what “statements” can be used for what “purposes.”

              In this case, you would probably need a spreadsheet to keep everything straight.

              If you want to read the cases, just go to findlaw.com. They should all be there.

    • CC Biggs
      05/31/2010 at 3:05 PM

      “and the three defendants were all seen in the house at that time, also by multiple outside witnesses”

      Not so fast. The outside witnesses can only say that they saw the defendants in the house AFTER the crime was committed. Who will testify that the three housemates were present in the house at the moment Wone was killed? Only the housemates themselves. That’s a very useful admission and the prosecution is right to want to establish that from the housemates’ own statements.

      • Bill Orange
        05/31/2010 at 3:31 PM

        I’m not sure I follow. The point of the charges is that the prosecution doesn’t think they’re telling the truth. If the defense tries to argue that one of the three wasn’t actually there–after all three of them SAID that all three of them were there–then isn’t the defense saying that they did, in fact, lie to the investigators?

        • CC Biggs
          05/31/2010 at 6:10 PM

          The benefit of establishing through the defendants’ own statements that they were present in the house at the time of the killing is MUCH greater than whatever benefit could possibly result from somehow establishing that they lied to police about their whereabouts (which is purely hypothetical and contrary to the facts, because the defendants were in fact present at the time of the killing and they admit they were).

  3. CDinDC (Boycott BP)
    05/31/2010 at 1:23 PM

    Oy.

  4. CDinDC (Boycott BP)
    05/31/2010 at 1:25 PM

    Aside from my previous comment (LOL), thanks to Sean for that excellent analysis.

  5. Layman Lawman
    05/31/2010 at 1:39 PM

    thanks for the helpful analysis sean. and good luck with the bar exam!

    • Bea
      05/31/2010 at 1:57 PM

      I second that! Sean, the bar exam is a pain in the ass but not as bad as it’s made out to be. The closer you are to graduation, the easier it is. I took one immediately and then another state’s five years later, and the latter one was much more difficult. You have that advantage!

  6. deepsouth
    05/31/2010 at 2:49 PM

    Thank you, Sean, for both your observational efforts and this post. It’s easy to understand, and I can tell I’ll be referring back to it when these issues come up again. It’ll be interesting to see the prosecution’s filing, too.

  7. Clio
    05/31/2010 at 3:21 PM

    Kudos, Sean. You have contributed to the renewed respectability of the term “Washington intern” after the Clinton era. My only suggestion for future posts would be to add the dates to the cases’ decisions as well as providing a tasty bit of their historical context. It sounds a little fuddy-duddy, I know, but scholars in the year 2075 CE will appreciate it.

  8. plumskiter
    05/31/2010 at 3:29 PM

    hey lawyers and interns and legal beagles…and warning to everyone else, i’m going to further confuse the legal discussion. It seems to me that the Court is missing something. Statements made by co-conspirators during and in furtherance of the conspiracy are not hearsay and do not require analysis under Bruton and its progeny.

    Assuming that the conspiracy is alleged to have continued through and beyond the aug. 2-3 interviews [every time i try to open the page with the legal documents my computer freezes, but the indictment would have the dates of the alleged conspiracy, which i am assuming began aug. 2, 2006 and continues to this day], then all of the statements made by the trouple would come in, and the truth/not truth analysis would maybe be moot? the government could argue that the trouples’ statements were indeed a mixture of truth and falsehood, so as to appear credible, and the government is going to point out in argument which parts are blatantly false and thus obstructive.

    It just seems to me that everyone, the court and lawyers, are off on the wrong legal tangent because these statements were all made during and in furtherance of the conspiracy. what do the rest of you think?

    • WhatACase
      05/31/2010 at 3:43 PM

      Great job Sean! This is a gross oversimplification, but when all is said and done, isn’t the judge essentially asking the prosecution to detail, specifically, what statements were made by the trouple that are demonstrably untrue, and therefore something she can specifically cite in reaching her decision on the charges? She can’t be in the position of listening/reading hours of interrogations and having to make up her own mind as to what is likely true and what is not—the prosecution has to point out the specific statements that evidence obstruction, and she’ll agree or disagree?

    • Bill Orange
      05/31/2010 at 3:44 PM

      Well, I’m not a lawyer, but your argument has the benefit of making sense, whereas everyone else’s just seems to be headache-inducing.

    • Bea
      05/31/2010 at 3:45 PM

      Hey Plums, I am with you. But what about the Judge mentioning the Thomas case – I think it’s more about one being held against the other.

    • Sean
      05/31/2010 at 3:53 PM

      Yeah, I thought about that too. The thing is, Judge Leibovitz asked the prosecution if they were planning to try and get something in under the co-conspirator’s exception. The prosecution said they weren’t. As for why not? I’m just speculating here as a non-lawyer, and I’m not going to tell Kirschner, Carlson Lieber, and Martin how to do their jobs, but it’s possible they might not think they can prove (as they have to with a preponderance of evidence) that the statements were in the course of and in furtherance of the conspiracy. Especially when a “we were” to “I was” switch might be a simpler and satisfactory solution.

    • srb
      05/31/2010 at 4:10 PM

      My guess is that they can’t rely on this exception because it presumes the existence of a conspiracy, which is the very thing the government is trying to prove in this case. And under the progeny of Bruton, the evidence of the conspiracy cannot be solely the statements that are being offered under the hearsay exception. I.e., there has to be sufficient independent evidence of a conspiracy for the exception to apply.

      • plumskiter
        05/31/2010 at 5:59 PM

        oh, my brain is rusty, and i can’t dredge up the name of the case, but there is a procedure and an evidentiary standard for accepting co-conspirator statements into evidence in a conspiracy case.

        this comes up in every conspiracy case (i tried many of them, particularly conspiracy to important and/or distribute cocaine). the govt has to make a showing with non-statement evidence that the defendant and declarant were members of the conspiracy (can’t remember the standard by which the showing is measured, but it is pretty low) & then the statements come in (sometimes there is argument about what is and is not in furtherance, but that is a separate question).

        anyway, i don’t get why the gov’t isn’t using this theory – would save them and the Court a lot of mental headaches. the defense may wonder too, but they are happy that the Court and govt are tied in knots over this issue.

        oh, and, i join in sending kudos to sean. good job. these are thorny issues for all lawyers and you seem to have an excellent grasp of the subject. good luck on the bar. you will do fine.

        i’m going to see if i can find the name of the case about the threshhold for admitting coconspirator statements.

        • Themis
          05/31/2010 at 10:39 PM

          The government has to establish a prima facie case without the contested statements by a preponderance of the evidence.

          • Themis
            05/31/2010 at 10:43 PM

            Mea culpa. It should without relying only upon the contested statements to prove the conspiracy.

    • Themis
      05/31/2010 at 10:36 PM

      I would be arguing that the conspiracy was essentially complete by the time that the trouple was escorted to VCB and that any subsequent statements were a cover up of the cover up and therefore inadmissible under Krulewitch. I’ve never lost a Krulewitch argument, but it’s all in the way you make your case and pushing the court to make the specific findings regarding the scope and duration of the conspiracy and whether specific statements were made in furtherance of the conspiracy.

      Krulewitch is a Supreme Court case that is also available on findlaw.com and is well worth reading when it comes to the limitations on admitting statements of coconspirators once the gig is up.

  9. Bill Orange
    05/31/2010 at 3:53 PM

    Question about introducing statements by Michael Price’s brother. This is from the WaPo article:

    “The confrontation, prosecutors assert, is evidence of Michael Price’s “consciousness of guilt” — a legal standard of evidence that prosecutors use to show how a person’s actions after a crime reveal that person’s involvement in the crime.”

    Is this accurate? Michael Price hasn’t been charged, and as far as I know, the prosecution hasn’t claimed he’s an unindicted co-conspirator. How’re they going to get his statements into the trial?

    Another question about Michael Price: He showed up at the VCB the morning after the murder. Did Joe call him? Or did he just happen to call Joe at 5 AM that morning?

    • CC Biggs
      05/31/2010 at 6:20 PM

      Why can’t they just call Michael Price to the stand as a witness? Unlike the actual defendants in this case, he can be called as a witness. If he takes the 5th and refuses to answer, then he can be charged with the conspiracy/obstruction counts and his statements can come in under hearsay exception rules (as discussed earlier).

      • Bill Orange
        05/31/2010 at 6:52 PM

        I’m fairly sure that they’re planning on calling him–they’ve talked about him too much to NOT call him at this point. I’m also fairly sure he’ll take the 5th, particularly if he’s not in contact with his ex. I think that there’s a reasonably good chance that they’ve broken Michael Price’s alibi, and if that’s the case, they’d be typing up the perjury indictment before he left the courtroom.

        • Bea
          05/31/2010 at 7:47 PM

          I hope the subpoena has already been served. Did the prosecution allude to calling the Younger Price during opening statement?

          • Bill Orange
            05/31/2010 at 9:06 PM

            I think they mention the fact that he robbed the house, but I don’t know if the said they were planning to call him. Eds?

  10. KKinCA
    05/31/2010 at 6:03 PM

    Great article Sean. You have reminded me why I became a business transactional attorney, and not a litigator! Best of luck on the bar exam! And keep up the great work here on WMRW.

  11. plumskiter
    05/31/2010 at 6:17 PM

    okay, I just cut and pasted this from a pleading by the govt in a federal case in colorado from 2007. The cases I was thinking of are Bourjaily & James. The Colorado AUSA takes the position that Crawford did not change the law on co-conspirator statements.

    The Proper Standard for Admissibility Is Preponderance of the Evidence

    The standard for a district court’s preliminary determination of admissibility under Rule 801(d)(2)(E) is a preponderance of the evidence standard. Bourjaily, 483 U.S. at 175-76. The preponderance of the evidence standard merely means “more likely than not.” Id. at 175. In ruling on the admissibility of coconspirator statements, the Court is authorized under Federal Rule of Evidence 104(a) to consider any evidence whatsoever except priviledged material, unhindered by consideration of admissibility. Id. at 178-79. Thus, the trial court may rely on the putative coconspirator’s declaration to determine that the conspiracy existed and that the declarant and the defendants were parties to the conspiracy. Id. at 180. In other words, as the Tenth Circuit has “repeated . . . time and time again in [its] decisions,” the Court can examine the hearsay statements that are being sought to be admitted in determining the statement’s admissibility pursuant to Rule 801(d)(2)(E). Owens, 70 F.3d at 1124.

    Because of the nature of the evidence generally uncovered to prove criminal conspiracies, “wide latitude is allowed [the prosecution] in presenting evidence, and it is within the discretion of the trial court to admit evidence which even remotely tends to establish the conspiracy charged.” Nye & Nissen v. United States, 168 F.2d 846, 857 (9th Cir. 1948), aff’d, 336 U.S. 613 (1949). “In fact the evidence need not conclusively exclude any other reasonable hypothesis nor negative [sic] all possibilities except guilt.” United States v. Sherman, 576 F.2d 292, 296 (10th Cir. 1978), cert. denied sub nom. Cerase v. United States, 439 U.S. 913 (1978)….

    The Supreme Court’s Crawford Decision Has Not Changed the Admissibility of Coconspirator Statements

    The Supreme Court has affirmatively determined that the Confrontation Clause of the Constitution, U.S. Const. amend. VI, does not require a court to inquire into the reliability of coconspirator statements admissible under Rule 801(d)(2)(E). Bourjaily, 483 U.S. at 183-84.

    The Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), changed much of the law concerning out-of-court testimonial statements, but it did not affect the admissibility of coconspirator statements. “Because Crawford did not overturn Bourjaily, the latter continues to control our application of the Confrontation Clause to Rule 801 co-conspirator statements.” United States v. Ramirez, 479 F.3d 1229, 1249 (10th Cir. 2007).

    Principles for Determining the Existence of and Membership in the Criminal Conspiracy

    Both Direct and Circumstantial Evidence Can Be Considered
    Although the conspiracy must be proved by a preponderance of the evidence in order for the coconspirator hearsay exception to be available, it need not be proved by direct evidence. “The nature of the offense of conspiracy with its attendant aspects of secrecy, often requires that elements of the crime be established by circumstantial evidence.” United States v. Andrews, 585 F.2d 961, 964 (10th Cir. 1978); United States v. Bucaro, 801 F.2d 1230, 1232 (10th Cir. 1986) (citations omitted) (existence of a conspiracy may be inferred from circumstantial evidence).

    The Court May Consider the Proffered Statement Themselves

    A district court may consider the proffered statements themselves in determining the existence of a conspiracy, and a defendant’s participation in it. Bourjaily, 483 U.S. at 180; United States v. Hernandez, 829 F.2d 988, 993 (10th Cir. 1987).

    Direct Testimony of a Coconspirator is Independent Evidence of the Conspiracy

    Most Circuits, including the Tenth Circuit, “require some reliable corroborating evidence apart from the coconspirator’s statements before those statements may be used.” United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993) (citations to decisions of various Circuits omitted); United States v. Petersen, 611 F.2d 1313, 1330 (10th Cir. 1979). The Tenth Circuit has defined “independent evidence” as “evidence other than the proffered statements themselves.” United States v. Martinez, 825 F.2d 1451, 1451 (10th Cir. 1987). Independent evidence may be sufficient even when it is not substantial. Rascon, 8 F.3d at 1541. The direct testimony of a coconspirator constitutes “sufficient independent evidence of the existence of a conspiracy.” United States v. Smith, 692 F.2d 693, 698 (10th Cir. 1982).

    Requirements for Membership in a Conspiracy

    The United States need not prove that a defendant knew each and every detail of the conspiracy or played more than a minor role in the conspiracy. As the Supreme Court has said:

    A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense . . .The partners in the criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the acts of each other . . . If conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators.
    Salinas v. United States, 522 U.S. 52, 63-64 (1997) (citations omitted).

    A defendant may be found to have participated in a conspiracy even if he joined or terminated his relationship with others at a different time than another defendant or coconspirator. Andrews, 585 F.2d at 964. “[S]tatements made during the course of and in furtherance of a conspiracy, even in its embryonic stages, are admissible against those who arrive late to join a going concern.” United States v. Potts, 840 F.2d 368, 372 (7th Cir. 1987) (citations omitted).

    A district court may consider the conduct, knowledge, and statements of the defendant and others in establishing participation in a conspiracy. United States v. Gutierrez, 576 F.2d 269, 273-74 (10th Cir. 1978) (defendant’s presence during part of conversation concerning transaction that was part of conspiracy coupled with completion of the transaction unquestionably identified the defendant as a member of the conspiracy for purposes of admission of coconspirator statements).

    Finally, once a conspiracy is established, “there need only be some independent evidence linking the defendant to the conspiracy.” Martinez, 825 F.2d at 1453; Andrews, 585 F.2d at 964 (only slight evidence is required to connect a co-conspirator).

    Statements Made During the Course of and in Furtherance of the Conspiracy

    Once the existence of the conspiracy and membership in that conspiracy of both the defendant and the declarant is established by a preponderance of the evidence, statements made “during the course” and “in furtherance” of the conspiracy are admissible pursuant to Rule 801(d)(2)(E). As long as the declarant and the person against whom the statement is offered were members of the conspiracy when the statement was made, the statement need not have been made to a person who was ever a member of the conspiracy. United States v. Williamson, 53 F.3d 1500, 1520 (10th Cir. 1995).

    It has long been the rule of the federal courts that a statement is made “during the course” of the conspiracy when the statement “was made while the plan was in existence and before its complete execution or other termination.” See 5 Weinstein’s Federal Evidence (Second Edition) § 801.34[4][a] at 801-82 – 801-83 (2003). All of the coconspirator statements in the United States’ proffer were made between June 2005 and December 2005, the timeframe of the conspiracy as alleged in the Indictment.

    Statements are “in furtherance” of the conspiracy and therefore admissible under the coconspirator exception if they are intended to promote the conspiratorial objectives. United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986); United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (citing Reyes); United States v. Sinclair, 109 F.3d 1527, 1534 (10th Cir. 1997); United States v. Perez, 989 F.2d 1574, 1578 (10th Cir. 1993). The statements do not have to actually further the conspiracy. It is enough that the statements are intended to promote the conspiratorial objectives. Reyes, 798 F.2d at 384. When determining “whether a statement was made in furtherance of a conspiracy, the focus is on the declarant’s intent in making the statement.” United States v. Roberts, 14 F.3d 502, 515 (10th Cir. 1993) (citations omitted). Whether a particular statement tends to advance the objectives of the conspiracy is determined by examination of the context in which it is made. Perez, 989 F.2d at 1579 (citing Weinstein’s Evidence at 801-318 to -323).

    Coconspirator Statements Are Admissible Against All Conspirators

    Once admitted pursuant to Rule 801(d)(2)(E), a statement of a coconspirator is admissible against all other conspirators, including those who joined the conspiracy after the statement was made. “[A] party may join an ongoing conspiracy during its progress and become criminally liable for all acts done in furtherance of the scheme.” Andrews, 585 F.2d at 964; See also United States v. Brown, 943 F.2d 1246, 1255 (10th Cir. 1991); United States v. United States Gypsum Co., 333 U.S. 364, 391-93 (1948). Because a conspiracy is regarded as a “partnership in crime,” Pinkerton v. United States, 328 U.S. 640, 644 (1948) (citing United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253 (1940)), each member of a conspiracy, whenever he acts or speaks to further the common illegal objective, is considered the agent of all the others and is substantively liable for all acts and declarations of coconspirators made in furtherance of the conspiracy. See e.g. Anderson v. United States, 417 U.S. 211, 218 n.6 (1974). Thus, under the agency principle of ratification, statements made during the embryonic stages of a conspiracy are admissible against any defendant who arrived later in the conspiracy. See Potts, 840 F.2d at 372. A defendant does not have to be a party to the coconspirator statement. As long as the defendant was a member of the conspiracy, statements made by his coconspirators in furtherance of the conspiracy are admissible against him. United States v. Garcia, 994 F.2d 1499, 1503 (10th Cir. 1993).

    • Bill Orange
      05/31/2010 at 9:09 PM

      Um, that didn’t really clear it up for me.

      On the plus side, I no longer think it’s worth spending a few hours trying to understand all of this. I obviously wouldn’t be able to do it.

      • plumskiter
        05/31/2010 at 9:19 PM

        i’m sorry. i maybe included too much, but it is a general tutorial on conspiracy law and since we are dealing with a conspiracy charge here, i thought some of the other stuff might interest someone.

        • Bill Orange
          05/31/2010 at 9:22 PM

          I was kidding.

          I still don’t understand all of the “for truth” stuff, and I’ve just decided that it’s beyond me.

        • Craig
          05/31/2010 at 9:43 PM

          Plum: I wish I could tell you what Leibovitz liked about Spagnoletti’s argument on all this. Whatever it was, it sounded like it was still in play as of Friday.

          • plumskiter
            05/31/2010 at 9:49 PM

            thanks craig. i wish i could be there watching in person. you guys are doing a great job of making us feel like we are almost there! i am most appreciative.

    • HKG
      05/31/2010 at 10:36 PM

      wow! great references.

  12. plumskiter
    05/31/2010 at 8:42 PM

    is it something i said? where did everybody go?

    • Carolina
      05/31/2010 at 11:42 PM

      I think brains exploded. Last one left has to clean up!

      • Bea
        06/01/2010 at 12:03 AM

        Plums, well done and thank you. I don’t have the time tonight to devote to it, and my guess is that this may be the read with the morning coffee for many of us. But your work is much appreciated.

  13. WhatACase
    06/01/2010 at 8:13 AM

    Plums — Just got through it with my morning coffee, and it was INCREDIBLY helpful—I think I’ve got it now. thanks

  14. abc
    06/01/2010 at 8:36 AM

    I am glad there is Sean joining in and giving his excellent understanding of the law. He will be a terrific attorney in criminal law if he chooses that path for his career. As for these living devils: Joe, Victor, Dyland, and Michael- they KNOW that THEY ALL premeditated on how to kill Robert Wone ( so that the act be completed in a short time period), orchestrated, conducted, performed, and achieved to complete the act to kill Robert Wone once Joe got the proposal from Robert to spend a “friendly” “free-night” stay at Joe and Victor’s house at Swann Street, but they are mum about it now and to give it a twist in that the rules of the American law are not making the matter any easier to find peace for the Wone’s love one or for Robert Wone. This is just another horrible crime happened to an innocent person.

    Robert Wone’s life is forever changed. Robert Wone’s family and his related members’ lives are forever changed. What in the world that God-forbidden animal brain Victor to claim that his life will be forever changed. With all this established rules to the American law which further complicate the on- going issue to this conspiracy case, I hope the prosecution will find a way to put these unruly boys into jail, otherwise, they get away with it and by nature’s law they can do it again when they find someone stands in their way to stab in that someone’s back again. OJ Simpson DID it and many other criminal acts that he committed following HIS murder of his wife and his wife’s boy friend. The family of the wife could not find justice for OJ’s murderous act. Only OJ knows.

    I hope the prosecution team doesn’t skip on those tiny puncture marks found on Robert’s neck, chese, right foot, and back of the left hand. For the reason, it can be proven by demonstration only if the prosecution is up to date with alternative medicine practice, why Robert didn’t have any marks on his body to show that he struggle to fight for his life when “that intruder” ended his life was because, Robert must have been persuaded to agree to get a “free stress relieve” session from Dyland who could have learned doing accupuncture on a side.

    If the prosecution team only zero in on accupuncture’s potent way to make one gets “under the state” but still remains conscious however the body cannot fight against an attack unless the accupressor point, or meridian is disturbed. By using accupuncture practice, Dyland could easily put Robert to “go under” like in a “freezing” or in a trance without injecting some sort of paraphylic drug or give Robert some drug in his drink prior Robert’s going to bed. Dyland is ten steps ahead of the convention use of chemical related drug to have someone to go pass out for him to conduct his work to make Robert remain motionless for he and his cronies to carry out this horrific God forbidden act.

    It will never to be proven WHO held the knife and plunge it into Robert’s body but when the crime was done to end Robert’s life. If alot of blood was missing from the scene, did the blood soak into the mattress or the foursome were able to throw the mattress out and replaced it with a clean one (I am being sarcastic). There is no mention of the mattress being soaked with blood. Let’s just say that the body was moved so that a fresh washed clean sheet can be replaced (in which Robert’s blood was found in the dryer’s lint screen) what happened to the bloody soiled mattress.

    Was there a genie in this house too? If the prosecution team could at least drill Dyland’s job as a massouse (I pray that he no longer practices this job or God Bless to the unknowing client who happens to be under his spell to have him relieve the stress on the client) investigate that Dyland could practice providing accupuncture on a side without a license, by scouring his background if he ever done accupuncture on anybody then at least could point to Dyland being a co-conspirator in this case to help to get Robert to stay motionless so that the crime can be achieved on Robert.

    • Bob
      06/01/2010 at 9:14 AM

      You wrote: “Robert Wone’s life is forever changed.” That obviously implies some sort of religious belief system, which may be what is getting Katherine Wone through this tragedy.

  15. 06/01/2010 at 11:41 PM

    I am glad there is Sean joining in and giving his excellent understanding of the law. He will be a terrific attorney in criminal law if he chooses that path for his career. As for these living devils: Joe, Victor, Dyland, and Michael- they KNOW that THEY ALL premeditated on how to kill Robert Wone ( so that the act be completed in a short time period), orchestrated, conducted, performed, and achieved to complete the act to kill Robert Wone once Joe got the proposal from Robert to spend a “friendly” “free-night” stay at Joe and Victor’s house at Swann Street, but they are mum about it now and to give it a twist in that the rules of the American law are not making the matter any easier to find peace for the Wone’s love one or for Robert Wone. This is just another horrible crime happened to an innocent person.

    Robert Wone’s life is forever changed. Robert Wone’s family and his related members’ lives are forever changed. What in the world that God-forbidden animal brain Victor to claim that his life will be forever changed. With all this established rules to the American law which further complicate the on- going issue to this conspiracy case, I hope the prosecution will find a way to put these unruly boys into jail, otherwise, they get away with it and by nature’s law they can do it again when they find someone stands in their way to stab in that someone’s back again. OJ Simpson DID it and many other criminal acts that he committed following HIS murder of his wife and his wife’s boy friend. The family of the wife could not find justice for OJ’s murderous act. Only OJ knows.

    I hope the prosecution team doesn’t skip on those tiny puncture marks found on Robert’s neck, chese, right foot, and back of the left hand. For the reason, it can be proven by demonstration only if the prosecution is up to date with alternative medicine practice, why Robert didn’t have any marks on his body to show that he struggle to fight for his life when “that intruder” ended his life was because, Robert must have been persuaded to agree to get a “free stress relieve” session from Dyland who could have learned doing accupuncture on a side.

    If the prosecution team only zero in on accupuncture’s potent way to make one gets “under the state” but still remains conscious however the body cannot fight against an attack unless the accupressor point, or meridian is disturbed. By using accupuncture practice, Dyland could easily put Robert to “go under” like in a “freezing” or in a trance without injecting some sort of paraphylic drug or give Robert some drug in his drink prior Robert’s going to bed. Dyland is ten steps ahead of the convention use of chemical related drug to have someone to go pass out for him to conduct his work to make Robert remain motionless for he and his cronies to carry out this horrific God forbidden act.

    It will never to be proven WHO held the knife and plunge it into Robert’s body but when the crime was done to end Robert’s life. If alot of blood was missing from the scene, did the blood soak into the mattress or the foursome were able to throw the mattress out and replaced it with a clean one (I am being sarcastic). There is no mention of the mattress being soaked with blood. Let’s just say that the body was moved so that a fresh washed clean sheet can be replaced (in which Robert’s blood was found in the dryer’s lint screen) what happened to the bloody soiled mattress.

    Was there a genie in this house too? If the prosecution team could at least drill Dyland’s job as a massouse (I pray that he no longer practices this job or God Bless to the unknowing client who happens to be under his spell to have him relieve the stress on the client) investigate that Dyland could practice providing accupuncture on a side without a license, by scouring his background if he ever done accupuncture on anybody then at least could point to Dyland being a co-conspirator in this case to help to get Robert to stay motionless so that the crime can be achieved on Robert.

  16. emg
    06/02/2010 at 8:49 AM

    Having read this entire thread, as a non-lawyer I have come to the conclusion that law, justice, and getting to the truth are often mutually exclusive.

    The good news, and what I think was a terrible mistake by the defense, was going for a bench trial vs. jury. All of the above in my view, is far less important in a bench trial because when the Judge issues her verdict she will stick to case law and exclude in her decision any evidence that should/should not have been admitted. Had there been a jury, this trial would have dragged on for months due to its complexity of 3 defendents and the very nature of ‘conspiracy’.

    I fail to see why the prosecution has to prove what is “for truth’. That is the whole point of conspiracy. They can not get into the defendants’ heads. When you have 3 people telling some truths and many falsehoods all for their own reasons, the statistical nightmare rises exponentially.

    Had they gone for a jury I believe it would have ended in a mistrial or hung jury. Not so with the Judge, thank God.

    • Bob
      06/02/2010 at 9:42 AM

      I am inclined to agree. I think that a hung jury would have been likely. However, I have a guess as to why the defense went for a bench trial, and would like one of the lawyers to offer an opinion. The defense realized that it would be difficult if not impossible to ensure that there were no homophobic jurors, but they may not have taken into account that the combination of at least one homophobic juror and at least one pro-gay juror would have resulted in a divided and divisive jury, which would be further confused by the combination of truth and lies. A hung jury would be essentially a defense victory. Although it could be retried, it would leave the case for the time being where it has been for four years.

      Maybe that is why the defense opted for a bench trial, but I wonder whether aiming for a hung jury would have been a better strategy.

  17. Bill Orange
    06/02/2010 at 9:49 AM

    “A hung jury would be essentially a defense victory.”

    I don’t think so. A hung jury would lead to a retrial, and the defendants would be right back where they started. You can argue that the prosecution wouldn’t bother to retry this case, but I doubt that’s true. The U.S. Attorney General is friends with the victim’s wife. He has recused himself from this case, but there’s little doubt that he’s paying attention to what’s going on. If you were on the prosecution’s team, I don’t think you’d want to hold a press conference saying that you have better things to do with your time than to retry this case.

    • Bob
      06/02/2010 at 9:37 PM

      It would not be a final defense victory, but a temporary defense victory. It would delay the next trial for about a year or so. It would be a temporary victory, because it would leave the defendants where they have been, almost free, not charged with murder. That is what I meant. I think that the whole defense has been a delay, and a hung jury would be a temporary victory.

  18. Kate
    06/02/2010 at 10:07 AM

    Many thanks to Sean, Plumskiter, Themis and all of the legal folks for this thread and the enlightening information presented here.

    Now that the prosecution has entered the three defendants’ testimony at VCB “for truth,” I take it that they will use each defendant’s statements AGAINST the other two, while redacted against themselves (the individual being interviewed).

    Is that correct? Or shall I join Bill Orange and throw up my hands and cry “Uncle!” on this legal wrangle?

    I must admit to being quite surprised at the prosecution’s shift in tactic yesterday.

    Many thanks for your assistance,
    Kate

    • Bill Orange
      06/02/2010 at 10:13 AM

      Sigh. My interpretation of the plan was exactly the opposite–they plan on using each defendant’s statement against that particular defendant, but not against the other two. Frankly, I don’t see how you can prove a conspiracy this way.

      Here’s a question for the lawyers: Since we’re already doing quite a bit of legal origami here, can the prosecution admit a statement “for truth” with respect to one defendant and “not for truth” with respect to another? If it were a jury trial, I think the answer would be no. But given that this is a bench trial, I really don’t know.

      • Kate
        06/02/2010 at 10:24 AM

        Oh no, Bill O!

        A sigh from me, to you.

        “Legal origami.” A spot on description, methinks.

        Cheers,
        Kate

  19. Jason
    06/02/2010 at 11:42 AM

    Seems like if these guys get acquitted, it’ll be on some legal technicality like this. Sucks.

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