The University of Florida
Fredric G. Levin College of Law
F A L L 2 0 1 0
Professor Pedro A. Malavet
Procedure for Examination Review. I will be available to discuss examination results during the Spring semester, beginning after Thursday, February 3, 2010, after post the feedback memorandum. Exams and the respective Feedback Memorandum will be available beginning on that date, after I post this memo to the website. You may pick up the exam from me. Please bring your exam number with you, as I keep them organized by exam number. You may make a copy of your exam answer and keep it for your records, but you have to return the original to me because faculty are required to keep exams for a few semesters.
Review Policy. Examination review is a good way to learn from your mistakes, and from your successes. I encourage you to review my feedback memo and your exam. I will be happy to sit down and discuss substantive matters with each student. I will first tell each of you what you did right. I will also gladly suggest ways to improve your exam-taking abilities.
No Grade Changes. I want to make one thing perfectly clear: I have never changed an exam grade for any reason other than a mathematical error. Barring mathematical errors, your grade is not going to be changed. Grading is a time-consuming and difficult process. The only fair way to do it is to grade in the context of each class. I look for a fair overall grade distribution and follow the rank of each student within the class in awarding the final grade.
Multiple Choice. The results of the multiple choice were an average score of 11.47 correct. Since I use these for general course coverage, I am always pleased to see such a result.
Before the exam starts, you may read the instructions, AND COUNT TO MAKE SURE THAT YOU HAVE ALL SIXTEEN (16) PAGES, AND YOU SHOULD WRITE YOUR EXAM NUMBER ON EVERY PAGE. IF YOU WILL USE A LAPTOP DURING THE EXAM, YOU MUST LOG INTO EXAM SOFT AT THE START OF THE TEST. OTHERWISE, DO NOT GO BEYOND PAGE THREE (THE END OF THE INSTRUCTIONS) OR READ ANY OTHER PART OF THE EXAM BEFORE YOU ARE INSTRUCTED TO START.
EXAM SOFT USERS MUST LOG INTO THE SYSTEM AT THE START OF THE EXAMINATION AND REMAIN IN THE SOFTWARE’S ANSWER-ONLY ENVIRONMENT FOR THE ENTIRE TEST PERIOD.
PRINTED EXAM ANSWERS WILL BE COLLECTED BY THE OFFICE OF STUDENT AFFAIRS. IF YOU FINISH EARLY, PLEASE GO TO THE OFFICE OF STUDENT AFFAIRS TO TURN IN THE COMPLETED EXAM. THE OFFICE OF STUDENT AFFAIRS WILL SEND PERSONNEL TO THE EXAM ROOM TO COLLECT EXAMS AT THE END OF THE EXAMINATION PERIOD.
Open Rules. “Open-Rules” means that you may have with you during the examination your required 2010 Mueller & Kirkpatrick Federal Rules of Evidence supplement. No substitutions will be allowed. Your supplements may be annotated with handwritten notes, but shall not have any attachments other than tabs to mark the location of specific material (the tabs may have on them numbers and the short titles of the referenced material and nothing more). Only handwriting may cover the blank spaces and the original printing on the supplements. The use of stick-on labels or paper, white-out or any other method to eliminate any of the original printing is prohibited. Other than the addition of handwritten notes and tabs, the supplements shall be in their original condition, no material may be added nor may any material be removed in any way. The supplements must be in their original bound form at the start of the examination. You may, however, tear them up during the examination if you find that makes them easier to use.
Honor/Conduct Code. You are bound by University Student Code of Conduct, the College of Law Honor Code and my rules. You certify compliance with all applicable rules by submitting your examination for grading. Violations of any applicable rule(s), should be reported to me or to pertinent authorities preferably before or during the examination. Serious violations of these rules shall result in a failing grade and in my referring the matter to the Honor Committee or to pertinent college or university conduct authorities. Less serious violations may result in a reduction in your final grade.
Read the Entire Exam. PLEASE READ THE ENTIRE EXAM BEFORE YOU BEGIN TO ANSWER ANY QUESTIONS. The exam consists of twelve (12) True or False questions (Part I), for forty percent (40%) of the exam grade; and one (1) essay problem (Part II), for sixty percent (60%) of the exam grade. Please take these weights into account when you design your answer schedule.
Limited Space. All students must answer the True/False section by selecting the answer on the exam itself. You must answer the essay question in the space provided in the separate answer packet for handwriting or typing, or with your laptop using the Examsoft template. Do not use bluebooks. While I encourage you to outline the answers before you start to write, do not include scratch paper or any additional material with your completed exam. If you wish me to ignore any part of your answer, simply cross it out and I will ignore it. If you should run out of space because of cross-outs, you may use an equivalent amount of space on the back of the page in the answer packet.
Write Legibly. If I am unable to read your answer, it is as if you had written nothing. The exam must be written in permanent, dark-color ink; under penalty of a maximum ten-percent reduction in grade, you may not use pencils, erasable ink, or felt-tip markers.
Do Not Un-staple Pages. Do not take the exam apart (except that you may take the answer packet apart if you are using a typewriter). If you do, you MUST RE-STAPLE IT. You must also turn in every page of the examination, not just the ones that you use.
Scratch Paper. You may use blank scratch paper to outline your answers and take notes during the examination.
Typing. If you are typing your answer, you must stay within the margins and write only one line of text per line of space given to you.
Electronic Exam Taking. You may take the examination electronically, using specialized software that ensures that you can only use your laptop to write your essay answer. All laptops must log-into the Exam Soft system at the start of the examination and remain in the Exam Soft answer only environment for the entire examination period. Only the essay section may be answered electronically. For the other sections, you must write your answer on the exam itself. Answer space shall be limited to 1800 characters (including spaces and carriage returns) for each blank page in the examination. That is enough for 24 lines of double-spaced text in courier type, size 11 for each page. Since I provided 12 blank pages, the character limit is: 1800 x 12 = 21,600 characters. Each student is responsible for keeping track of answer length. The Exam Soft window constantly displays character count at the bottom of the screen. You may also use the length command to check character length. The penalty for exceeding the character limit will be a deduction from your essay score of a percentage equal to the percentage by which you exceeded the character limit.
Review. Exam review will start after I post the feedback memorandum on the course website on Thursday, February 3, 2011. Instructions for the review process will be included in the memorandum.
You must stop work four (4) hours after THE SIGNAL TO START. Completed examinations must be turned in to The office of student Affairs.
General Instructions For Part I
Select the best answer to the question presented. In this section, do not look for “perfect” answers, just the most correct one among the two alternatives available to you, in light of the question or statement presented, viewed in the context of the federal rules of evidence and related doctrines and caselaw as we discussed them in class. No explanations are required or allowed. Your answer will either be correct or incorrect, there will be no partial credit for incorrect answers. Circle the appropriate word or letter that you select as your response.
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) the fact is not necessary to the resolution of the question, or (3) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question of the proctors).
Do not look for issues that are not relevant to answering the question. The question asked determines the issues raised, read it carefully and answer the question I asked, with the best possible response among the alternatives given.
Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence, taken together with all the accompanying doctrines and caselaw as we discussed them in class.
Part I: True or False (40%)
In this section, you must select either “True” or “False.” The statement, as drafted, when read in the context of a Federal Trial, is either True or False.
1. In an appeal based on an evidentiary question, the appellant establishes that his counsel made a timely and well-grounded objection to the admission of certain evidence at trial. The appellate court also finds that the trial court erred in admitting the evidence. The appellate court is not required to reverse the lower court decision.
Answer: True. In addition to the finding of error in the admission, the court of appeals must find that “a substantial right of the party is affected” by the error, before reversal is appropriate. FRE 103(a). Therefore, the appellate court is indeed not required to reverse until the further finding is made.
2. Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that defendant Donald ‘Boon’ Schoenstein is guilty of Rioting, testimony that in the middle of a riot, his girlfriend Katy Faver, after observing Schoenstein running North on Main Street, said to approaching police officers —“Officers, officers, he went that way,” while pointing to the South on Main Street, is not hearsay.
Answer: True. Duck Soup and Verbal Act both lead us non-truth use from which guilt may be circumstantially inferred. Facts from the classic movie comedy Animal House.
3. In a criminal trial, the defense wishes to impeach a witness during his testimony by asking during cross-examination about the witness’ convictions for crimes, for the purpose of attacking his character for truthfulness. This attack on the witness’ credibility is generally governed by Rule 609.
Answer: True. Credibility of the witness is a matter not governed by 404, as provided by 404(a)(3). I gave you the reference to FRE 609 coupled with conviction which does indeed generally govern this area.
4. In a civil trial arising out of an automobile accident, the plaintiff offers the testimony of an eyewitness who will identify the defendant, John Andrews, as the person driving the car that hit him and that the traffic light controlling Andrews’ lane was red. The defense objects. At the bench, so that the jurors cannot hear what is happening, the court rules that the evidence is relevant to the case and prejudicial for the defendant because it makes it more likely than it would be without that evidence that Andrews’ negligence was the proximate cause of the accident. The court should exclude this evidence under Rule 403.
Answer: False. My usual “are you paying attention to unfairly prejudicial”. As we discussed in class in general. As the notes on the web indicate, this was explained in Bryan v. State, 450 N.E.2d 53, 57-58 (Ind. 1983). [The court in Bryan v. State, 450 N.E.2d 53, 57-58 (Ind. 1983), found that the evidence was indeed prejudicial, as any inculpatory evidence in a criminal trial would be, but it was not unfairly prejudicial. Thefeore, it passes muster under, or, more accurately, it ought not be excluded using FRE 403. The court’s analysis demonstrates legitimate relevance and probative value, and none of the factors in favor of exclusion.]
5. The law of evidence can never proceed on the basis that the jury will follow the court’s instructions where those instructions are clear.
Answer: False. I changed generally for “can never”, thus contradicting the general rule and making the statement false. Bruton, tells us that while the general rule is that juries follow instructions, there are occasions when that cannot be assumed, so “never” and “always” are false, and “generally” is true. Finally, the reason advanced by the majority in Delli Paoli was to tie the result to maintenance of the jury system. "Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense." We agree that there are many circumstances in which this reliance is justified. This is a clear statement of the general rule regarding instructions, although you must be careful to note that it does not always apply, which is the usual variation of this question.
6. Defendant, Dr. Buckaroo Banzai, famed law professor, neurosurgeon, particle physicist, and rock-star, is charged with criminal destruction of property. Dr. John Whorfin is called as a witness by the defense in this criminal trial, with the expectation that he will testify that he, not the defendant, destroyed the valuable, highly-modified Ford F-150, by setting it on fire. Dr. Whorfin is a resident of the New Jersey Hospital for the Criminally Insane at Grover’s Mill. Prior to this offer of testimony, in separate proceedings alleging that he had murdered a hospital orderly during an escape attempt, Whorfin was found to be criminally insane and incompetent to stand trial. Among certain other personal quirks, he has publicly stated that he is a red Lectroid from Planet Ten and that he must return to the Eighth Dimension to rescue his army, in order to conquer the universe, starting with Planet Ten. The government objects that Whorfin is incompetent to testify. The court cannot possibly find Whorfin competent to testify.
Answer: False. Yet again, “the crazy person could be found competent,” so the statement is false. My current version of U.S. v. Lightly, loosely based on the delightfully-insane Adventures of Buckaroo Banzai Across the Eighth Dimension. These are the facts of US v. Lightly. As we discussed in relation to U.S. v. Lightly, the presumption of competency of FRE 601 applies even to persons about whom we have questions regarding their mental health. If the court then found that, though insane, the witness could understand the oath, had memory of the relevant facts, and could communicate what he saw or did, he may indeed be found to be a competent witness, therefore the alternative that the court must find him not competent to testify is false and the may find him competent is true.
7. After certain evidence is found to be relevant, it may be excluded if its probative value is substantially outweighed by considerations of needless presentation of cumulative evidence.
Answer: True. I went to the next 403 rationale for exclusion, 403[E], and “may,” creating the true statement since the rule does indeed allow relevant evidence to be excluded on the basis of waste of time. My continuing use of 403 rationales, surprise! Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if  its probative value is  substantially outweighed by  the danger of [Fairness Rationales for Exclusion:] [F-1] unfair prejudice, [F-2] confusion of the issues, or [F-3] misleading the jury, or by [Efficiency Rationales for Exclusion:] [E-1] considerations of undue delay, [E-2] waste of time, or [E-3] needless presentation of cumulative evidence.
8. Before an expert witness is allowed to testify in that capacity, the judge must find by a preponderance of the evidence that her testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.
Answer: True. The judge makes the finding. Under Rule 702 the court must make a preliminary 104(a) finding that the requirements of the rules, as amended to incorporate the express language I transcribe, are met. Of course, this incorporates Daubert and Kumho tire, as well as the Bourjaily 104(a) standard. The matter is expressly discussed in the first paragraph of the ACN for the 2000 amendments. I discussed this in class this year in relation to the cases and emphasized how the rule was amended to ensure that judges made these findings before allowing the jury to hear the evidence. Also, when the matter falls under 104(b) the jury does not make decisions about who is or is not allowed to testify or in what capacity, rather, they make decisions about whether or not certain evidence may become the basis of their verdict.
9. Given the definition of hearsay of FRE 801(a), (b) and (c), when offered as proof that Susan went to The Hub, Frank’s testimony that when Susan spoke to him during a class break earlier that day she told him that “she was going to go to The Hub at 10:30 P.M.” is not hearsay.
Answer: False. This clearly comes from Pheaster. Larry’s statement of intent to go to Sambo’s, or here to The Hub, offered to prove that intent, is dependent on the truth of the matter asserted and is thus hearsay under FRE 801(a),(b), (c). It will be clearly admissible for that limited purpose under 803(3) but that is not the question.
10. In a criminal case, evidence of a pertinent trait of character may be offered by the defendant to prove he acted in conformity therewith at the time of the alleged offense.
Answer: True. The defendant may so offer evidence under 404(a)(1)[A].
11. In a criminal prosecution for sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is not admissible to prove that the defendant acted in conformity therewith on a particular occasion.
Answer: False. FRE 413. In a sexual assault prosecution certain evidence of another offense of offenses of sexual assault may be admitted for any purpose to which it is relevant, including the AICT inference. Variation: not an offense of any kind, so watch out for “of any kind”.
12. During civil commitment proceedings against University of Cincinnati junior Mary Jane Jones, her parents, who are trying to institutionalize her in a psychiatric treatment facility, present testimony that she told several classmates: “I am Tebow, Tim Tebow, Heisman Trophy Winner.” Given the definition of hearsay of Rule 801(a), (b) and (c), this evidence is hearsay.
Answer: False. This is non hearsay. A variation on “I am Napoleon Bonaparte.” As we discussed in class repeatedly, this statement is offered to prove lack of mental capacity (and likely some gender confusion), and it is nonhearsay.
As I noted in class, this is the position taken by our casebook authors and by me in this area. Others, such as professor Graham, take the position that this should be treated differently (though they ultimately agree that it is nonhearsay). But, you are judged in my class in accordance with how the material is taught in class.
This one is more akin to the “I am Woody Allen” in our class problem, since of course Mr. Tibow is a very real person. But he is not Mary Jane Jones, Cincy Junior. Naturally these are laboratory conditions, in a real case, this statement would have to be accompanied by evidence that she was not kidding.
PART II: ESSAY PROBLEM (60%)
General Instructions for Part II
Do not assume any facts not given to you. While you are expected to draw reasonable conclusions from the facts given, you should not assume facts. In this section of the exam, “missing facts” suggest three possibilities: (1) you need to read the question again, i.e., “it’s in there somewhere,” (2) I made a mistake and you may need to alert me to it (if you are convinced that this is what is going on, do not be afraid to ask the question), or (3) you need to indicate that you need to establish certain facts in order to provide a complete opinion. In this section of the exam, identifying missing facts that are necessary to a complete resolution of the issue may be precisely what you need to do in order to provide a proper response.
Do not look for issues that are not relevant to completing the exercise as instructed. The instructions determine the pertinent issues and how they must be handled in a carefully-crafted essay. Read them carefully and write accordingly. Evidence is a broad and complex course, I have crafted the issues narrowly, do not waste your time covering issues that the fact-pattern and your instructions as to the mandated result do not require you to address or resolve. No credit will be awarded for discussion of matters not relevant to the resolution of the problem.
Applicable Rules. Assume that the applicable rules of evidence are the Federal Rules of Evidence, together with the applicable common law, statutory, and constitutional rules, doctrines, and caselaw as you studied them in your Fall 2010 Evidence course.
Citations. Since this is an open-rule exam, citation should be made to the appropriate rule, especially the Federal Rules of Evidence, statutory or Constitutional provision, etc. Case citations will be judged on a “close-enough” basis. Please keep in mind that my annotated versions of the rules are helpful shorthand references.
Instructed Result. You must reach and fully justify the instructed result in order to earn any credit for your answer.
Limited Space. Please keep in mind that you are bound by the character length limit in Examsoft, and to the space provided in the hand- or typewriting packet.
Abbreviations. You may use reasonable abbreviations in your essay, provided that you identify the equivalent longhand the first time you make use of each abbreviation. You may not abbreviate the names of persons used in the problem.
United States v. Perez-Berrios
(Before the U.S. Court of Appeals for the Fourth Circuit)
Roberto Perez-Berrios was convicted by a jury of conspiracy to possess with intent to distribute at least 100 kilograms of marijuana, 21 U.S.C.A. §§ 846, 841(b)(1)(B) (West 1999 & Supp. 2009) (Count One), and possession with intent to distribute of at least 100 kilograms of marijuana, 21 U.S.C.A. § 841(a), (b)(1)(B), 18 U.S.C. § 18 (2006). In this appeal, Perez-Berrios challenges his conviction and sentence, and the district court’s denial of his motion for a new trial.
The government’s trial evidence showed that in January 2007 a tractor-trailer truck was stopped in Mississippi because it lacked a visible Department of Transportation number. Inspection revealed that it contained rotting fruit and $1.2 million in cash in several suitcases. The driver, Jose Rios, cooperated and made two recorded telephone calls to his boss, Roberto Perez-Berrios, who was listed on documents in the truck’s cab as the owner of the trucking company. Perez-Berrios agreed to send money so that Rios could return to Texas and said he did not know “how much” was in the truck, but that Rios should get a receipt for it. Rios later recorded two conversations with co-defendant Juan Gonzalez in Texas, during which they discussed preparations for two more trips using a blue truck and transporting 2000 “pesos” to Charlotte, North Carolina. One of the Drug Enforcement Administration (DEA) agents who conducted the investigation in Texas testified that the defendants used the term “pesos” to mean “pounds.”
On March 19, 2007, Rios recorded both audio and video tapes of a truck being loaded at a warehouse leased by Perez-Berrios. The lights in the warehouse were dimmed while packages were placed in the truck, then the lights were turned back on and a forklift was used to fill the truck with pallets of produce. Co-defendants Roberto Perez-Berrios, Gonzalez, Edgar Perez-Berrios, and David Arroyo were present. Perez-Berrios operated the forklift. Federal agents were also able to witness the loading depicted on the videotape and to testify at trial accordingly, but they could not hear what was being said. The audio and video tapes, however, clearly recorded the voices of Rios and all the co-defendants present at the warehouse and the investigating federal agents could identify the voices on the tapes and the persons depicted on the video based on their observations of the drug operation.
After Rios drove the truck away from the warehouse, federal agents kept the truck under surveillance and unloaded produce and more than 2000 pounds of marijuana from it some distance away. The marijuana was flown separately to North Carolina, while Rios drove the truck to Charlotte. When Rios reached Charlotte, the agents reloaded the marijuana onto the truck. Rios called Perez-Berrios on March 22, 2007, and was told to go to a warehouse leased by co-defendant Peter Smith. After the marijuana was unloaded by Smith, Juan Ruiz-Melendez, and others, they were arrested, as was co-defendant Yusuf Galib, who arrived to buy marijuana. Unaware of the arrests, Gonzalez and Arroyo sent a moneygram to Rios the same day.
In April and in late May 2007, Rios drove loads of marijuana to Indianapolis, Indiana, and to Durham, North Carolina, as directed by Perez-Berrios and Gonzalez. These trips were also monitored by federal agents. Roberto Perez-Berrios and Gonzalez were arrested in June 2007. Edgar Perez-Berrios became a fugitive. Roberto Perez-Berrios, Gonzalez, and Galib went to trial and were convicted on all counts. Arroyo, Smith, Ruiz-Melendez, and two other co-defendants entered guilty pleas; however, only Ruiz-Melendez testified at the trial. Rios was expected to testify, but disappeared shortly before the trial began.
Before trial, the government moved in limine to admit tape recordings of the monitored conversations between Rios and defendants Perez-Berrios and Gonzalez, as well as the audio and video recording of the truck loading taken by Rios on March 19, 2007. Perez-Berrios and Gonzalez opposed the admission of this evidence arguing that the statements were hearsay and not properly admissible under the Federal Rules of Evidence and that their admission would also violate their rights under the Confrontation Clause of the Sixth Amendment. The district court granted the government motion, finding that the evidence was admissible in spite of the defendants’ inability to cross-examine Rios or any other non-testifying declarant. Judge Whitney held that admission did not violate the Hearsay Doctrine or the Confrontation Clause because the recorded conversations were among co-conspirators, and the conspirators’ statements were therefore admissible against each declarant-defendant and against the declarant’s co-conspirators. The court also held that Rios’ statements were not hearsay because they were not offered for “the truth of the matter asserted,” but to provide a context for the defendants’ statements. The government requested a limiting instruction, to which the court agreed, in order to ensure that jury would use all admitted statements properly.
In reaching his decision to admit, District Judge Whitney found that there was an ongoing conspiracy between the indicted co-defendants, though the evidence did not clearly establish the relative positions of Perez-Berrios and Gonzalez within the conspiracy. While Rios initially identified Perez-Berrios as his boss, he apparently received instructions from both Perez-Berrios and Gonzalez relating to the actual delivery of marijuana on various trips he made. However, Perez-Berrios ostensibly owned the trucking company for which Rios was driving when he was initially stopped in Mississippi with $1.2 million in his truck. Perez-Berrios leased the warehouse in Texas where the 2000 pounds of marijuana was loaded for shipment to Charlotte. Perez-Berrios operated the forklift to load produce onto the truck, which his attorney argued showed that he was a worker, not a leader. However, having viewed the videotape of the loading, as well as other evidence, the district court determined that Perez-Berrios and the other co-defendants (including Gonzalez) were involved in a conspiracy and that Perez-Berrios appeared to be directing the others present as well as operating the forklift.
During the trial, Perez-Berrios and Gonzalez expressed frustration at Rios’ absence. Gonzalez’s attorney asked the federal agent in charge of the Charlotte investigation if he knew where Rios was, although Perez-Berrios’ attorney did not agree that the question should be asked. At the close of the government’s evidence, Gonzalez’s attorney informed the court that he intended to request a missing witness instruction; however, he later decided not to do so. Gonzalez did point out in his closing argument that neither Rios nor Smith had testified.
On appeal, Perez-Berrios contends that the Confrontation Clause, which protects a criminal defendant’s right to be confronted with the witnesses against him,” was violated by the admission of Rios’ statements and co-defendant Gonzalez’s statements. He further argues that admission of the statements by Rios and other indicted co-defendants in the audio and video recording of the truck loading on March 19, 2007, should likewise not have been admitted on confrontation grounds. As noted already, Rios did not appear at trial and trial co-defendant Gonzalez did not take the witness stand. Of the other indicted members of the conspiracy, only Ruiz-Melendez took the witness stand during this trial. Perez-Berrios further contests the admission of his recorded conversations with Rios on the ground that Rios was not present for cross-examination. Perez-Berrios also relies on Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and its progeny, in support of his Confrontation Clause arguments.
This matter comes up to the Fourth Circuit on Appeal from the United States District Court for the Western District of North Carolina, at Charlotte, Frank D. Whitney, District Judge. The case will be decided by Judges M. Blane MICHAEL, Robert Bruce KING, and G. Steven AGEE, Circuit Judges. Although the opinion will be PER CURIAM, judge Michael has been assigned to write the draft on behalf of the panel. You are a law clerk to the Honorable Judge Michael, and he has instructed you to craft a well-reasoned draft opinion consistent with the following instructions:
The Court of appeals will rule that the admission of all the statements objected to by Perez-Berrios was not in error. The circuit will find that Judge Whitney properly admitted the evidence under the Federal Rules of Evidence, in particular under the Hearsay Doctrine, and that the admission did not violate Perez-Berrios’ confrontation rights. Following Judge Whitney’s findings, you must illustrate in detail how he applied all relevant Federal Rules of Evidence as well as the Crawford Confrontation Clause line of cases in a manner that should be sustained on appeal.
Applicable statutes and jury instruction:
21 USCS § 846. Attempt and conspiracy
Any person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
18 USCS § 18. Organization defined
As used in this title, the term “organization” means a person other than an individual.
21 USCS § 841. Prohibited acts
(a) Unlawful acts. Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
(1) (A) In the case of a violation of subsection (a) of this section involving--
(1) (B) In the case of a violation of subsection (a) of this section involving--
(i) 100 grams or more of a mixture or substance containing a detectable amount of heroin;
(ii) 500 grams or more of a mixture or substance containing a detectable amount of--
(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;
(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III);
(iii) 28 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;
(iv) 10 grams or more of phencyclidine (PCP) or 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);
(v) 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);
(vi) 40 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N- [1-(2-phenylethyl)-4-piperidinyl] propanamide or 10 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N- [1-(2-phenylethyl)-4-piperidinyl] propanamide;
(vii) 100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight; or
(viii) 5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers;
such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, United States Code, or $ 5,000,000 if the defendant is an individual or $ 25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18, United States Code, or $ 8,000,000 if the defendant is an individual or $ 50,000,000 if the defendant is other than an individual, or both. Notwithstanding section 3583 of title 18, any sentence imposed under this subparagraph shall, in the absence of such a prior conviction, include a term of supervised release of at least 4 years in addition to such term of imprisonment and shall, if there was such a prior conviction, include a term of supervised release of at least 8 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.
The Standard Federal Jury Instruction on the Conspiracy charge reads as follows:
21 U.S.C. § 846 and/or 21 U.S.C. § 963
It’s a separate Federal crime for anyone to conspire to knowingly possess with intent to distribute or import [substance].
[Title 21 United States Code Section 841(a)(1) makes it a crime for anyone to knowingly possess [substance] with intent to distribute it.]
[Title 21 United States Code Section 952 makes it a crime for anyone to knowingly import [substance] into the United States from some place outside the United States.]
A “conspiracy” is an agreement by two or more persons to commit an unlawful act. In other words, it is a kind of partnership for criminal purposes. Every member of the conspiracy becomes the agent or partner of every other member.
The Government does not have to prove that all of the people named in the indictment were members of the plan, or that those who were members made any kind of formal agreement. The heart of a conspiracy is the making of the unlawful plan itself, so the Government does not have to prove that the conspirators succeeded in carrying out the plan.
The Defendant can be found guilty only if all the following facts are proved beyond a reasonable doubt:
(1) two or more people in some way agreed to try to accomplish a shared and unlawful plan to possess or import [substance];
(2) the Defendant, knew the unlawful purpose of the plan and willfully joined in it; and
the object of the unlawful plan was to [possess with the intent to distribute] [import] more than [threshold] of [substance].
A person may be a conspirator even without knowing all the details of the unlawful plan or the names and identities of all the other alleged conspirators.
If the Defendant played only a minor part in the plan but had a general understanding of the unlawful purpose of the plan – and willfully joined in the plan on at least one occasion – that’s sufficient for you to find the Defendant guilty.
But simply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn’t establish proof of a conspiracy. Also a person who doesn't know about a conspiracy but happens to act in a way that advances some purpose of one doesn't automatically become a conspirator.
[The Defendant[s] [is] [are] charged with [distributing] [possessing and intending to distribute] at least [threshold] of [substance]. But you may find [the] [any] Defendant guilty of the crime even if the amount of the controlled substance[s] for which [he] [she] should be held responsible is less than [threshold]. So if you find [the] [any] Defendant guilty, you must also unanimously agree on the weight of [substance] the Defendant possessed and specify the amount on the verdict form.]
Case: UNITED STATES v. ORTIZ-BARRAZA, 365 Fed. Appx. 526; 2010 U.S. App. LEXIS 3302 (4th Cir. 2010). I modified the opinion for exam purposes, but the facts came from the text of the opinion.
MY ABSTRACT ON THE ANSWER
There were three evidence clusters: (1) phone calls between Rios and Perez-Berrios; (2) phone calls between Rios and and Gonzalez; (3) the audio and the sound recorded on the video of the March 19 truck loading. Rios’s statements to law enforcement also deserved some discussion.
Declarants: It was critical to identify the declarants in the offered and challenged evidence. Rios, Defendant-Appellant Perez-Berrios, Co-Defendant Gonzalez, Co-venturers Arroyo and Edgar Perez-Berrios. The more careful you were in breaking them down, the more points you would earn, especially at the relevance and specific rule stages, including the Crawford analysis.
Scoring High- and Low-lights. I was shocked by how many students ignored 801(d)(2)(A) after I specifically referenced it when I discussed Sharee Miller’s statements in the practical project. The neglect that what RIOS said was to be treated differently from what was said to him was also a critical error. References to Rule 804 were mostly creepy (I did not even get into 804(b) and telling me that you got it from a canned outline is not helpful to a good grade). Barber v. Page was the appropriate reference for unavailability here.
Also the use of Gonzalez’s words against Perez-Berrios in their joint trial (and vice versa) raised a Bruton problem that was resolved by the co-conspirator exception.
The clearly inadmissible statements by Rios to the DEA (“Perez-Berrios is my boss” for example) which were considered by judge Whitney in what I presented as a James hearing were a factual source to discuss the second sentence of 104(a).
There was some good discussion of expertise to allow the DEA to “translate” the “pesos” references using FRE 702. Alternately, it might have been based on factual observation of defendants referring to their pot cargo as “pesos.”
Refusing to discuss 802 and the rationale for the hearsay prohibition was just dumb.
Failing to take to heart my admonition that you cannot reach 801(d) unless you answer yes to the 801(a)-(c) question was likewise a major loss of points.
In more detail, you had to use the structure of analysis that I laid out for you throughout the course to structure your answer. Hereinafter, I use my usual outline and notes taken from the posted highlights in my webnotes, to illustrate the issues that should have been discussed in each section in great detail. I will occasionally insert a note about the exam fact-pattern as well. However, please keep in mind that this is an abstract of the answer, you had to articulate your answer in essay form.
For grading convenience, I broke down the preliminary issues into the FRE 103 issues and the 104 issues.
FRE 103. Rulings on Evidence
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. [This language was added in December 2000 and is currently in effect. It resolves the problem discussed at the top of page 41 in your casebook.]
(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
[CB, Objection must be made] Perhaps the one practice known to everybody is that lawyers object when they want to keep evidence out. You have probably concluded that there must be a reason and that failing to object must carry a cost. Right on both points. [FRE 103(a)(1) (objection required to appeal admission)] [FRE 103(a)(2) (offer of proof required to appeal exclusion)] [FRE 103(b)]
[CB] The objection must be timely, meaning that it must be raised at the earliest reasonable opportunity. Thus an objection to testimony by a witness should usually be stated after the proponent has put a question but before the witness answers. (If the witness "jumps the gun," perhaps with the connivance of the other lawyer, the objection can be stated after the fact, when it becomes a "motion to strike.") The obvious drawback of this "after objection" is that the jury has heard the answer, so an instruction to disregard may be ineffective, even counterproductive (emphasizing the point to be forgotten). Hence the objecting party often couples a motion to strike with a request for a mistrial, arguing that the damage cannot be undone, and therefore that the trial must begin anew before another jury. You can probably guess why this part of the motion is not likely to succeed.
[CB] And the objection should include a statement of the underlying reason ("ground") .
[CB, Motion in Limine] Often a party anticipates that particular evidence will be offered to which he will object. Sometimes he anticipates that an item of proof that he plans to offer will meet serious objection from the adversary. In either case, he may want to obtain a ruling in advance, and the mechanism of a "motion in limine" (literally, "at the threshold") provides the means. This procedural device is sometimes authorized by statute or rule, and it exists by common law tradition in almost all other jurisdictions (including the federal system).
[CB] Kinds of error. In explaining what they do, reviewing courts classify evidence errors in four categories:
[CB] One is "reversible" error, which refers to the kind of mistake which probably did affect the judgment. Generally the term also means that appellant took the necessary steps at trial to preserve his claim of error (usually by raising an appropriate objection or making a formal offer of proof).
[CB] Another is "harmless" error, meaning the kind of mistake that probably did not affect the judgment. This label expresses the reviewing court's conclusion that appellant has not shown that a ruling affected the verdict.
[CB] The third is "plain" error, meaning the kind that in the estimation of the reviewing court warrants relief on appeal even though appellant failed at trial to take the steps usually necessary to preserve its rights (objecting or making an offer of proof). *** See Rule 103(d).
[CB] The fourth is "constitutional" error in criminal cases, which usually means a mistake by the trial court in admitting evidence for the prosecution that should have been excluded under the Constitution.
FRE 104(a)/(b) Notes
[CB] 1. You will see [in Chapter 5] that FRE 404 does bar proving conduct by means of "character evidence" Usually prosecutors cannot open up these matters. You will learn that defendants can try to prove innocence by showing good character, however, and that prosecutors can then respond in kind. You will also see that FRE 404(b) opens the door for prosecutors to prove specific acts when they bear on matters like knowledge, intent or modus operandi, which is what Ms. Page argues. The difference between "proving bad character" and "proving bad acts to show specific things" (knowledge or intent or modus operandi) is often very subtle.
[CB] (b) Led by the decision in United States v. Huddleston, 485 U.S. 681 (1988), federal courts give juries the question whether defendant committed other acts, treating the question as one of conditional relevancy under FRE 104(b) and assessing the sufficiency of the evidence. Also the preponderance standard applies.
[As I noted in class, remember to cross-reference Huddleston to 104(b) and Bourjaily (at page 212) to 104(a).]
[CB] Simple relevance. The judge alone decides whether a particular point, which a proffered item of evidence concededly tends to establish or refute, is "consequential" within the meaning of FRE 401. Only a judge is qualified to decide this point, for it turns on substantive and procedural rules, which establish and limit the issues.
[Under Bourjaily, a preponderance of the evidence standard applies to the finding of conspiracy in particular. The other questions are matters of law. COINCIDENCE attaches here with the judge not telling the jury that he has already found certain predicate facts.]
Note that the weight and credibility of the evidence should be left to the jury, as a general rule. FRE 104(e).
[CB] Conditional relevance. Rule 104(b) provides that when relevance turns on "the fulfillment of a condition of fact," the judge performs only a screening function: When different answers are reasonable, the jury decides. That is, the jury decides whether the condition is satisfied. Conditionally relevant evidence is admitted "upon, or subject to" introduction of enough other evidence to support the appropriate jury "finding."
[CB] [Note that the drafters of the rules thought they had made a distinction between simple and conditional relevance]. 5. The concept of conditional relevance connects with a larger phenomenon modern commentators call the problem of "conjunction." The fortunes of a litigant may depend on acceptance of testimony by two witnesses and thus on the "conjunction" of what they say. Here the relevance of what each says might be said to be conditional on what the other says. Consider an example drawn from the Advisory Committee's Note: X sues Y on a debt, and X's case depends on proving that Y admitted the debt by letter. The Note describes this situation as one of conditional relevance, and the judge will likely admit testimony by X that he received the letter, as well as testimony by some third person Z that Y wrote or authorized it.
[Since I pay little attention to mathematical probability in the course, I care little for the distinction between Coincidence and Conjunction, though during this Fall I was careful to avoid using them interchangeably. But not one of my biggest concerns either.]
[The language of the statutes was essential here as was the pattern jury instruction. All had to be used to articulate an evidential hypothesis.]
21 USC 846 Conspiracy. Here you must use the pattern jury instruction to articulate the hypo and to lay out the elements of the conspiracy charge.
18 USC 18, organization. The organization’s existence was an enhancement element and contributes to the finding of the conspiracy as well.
Here you really had to make use of the pattern jury instruction to break down the elements of conspiracy and tie the offered evidence to it.
21 USC 841(a)(1) conspiracy to distribute a controlled substance, marijuana.
and penalty under (b)(2)(B)(vii) because of the weight. 100 kgs, rather than more than 2000 kilos. 2000 pounds is not quite 2000 kilos.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
[A] All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. [B] Evidence which is not relevant is not admissible.
FRE 401( Annotated)
Rule 401. Definition of "Relevant Evidence" "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
[CB] Over the years four answers have been suggested [to the meaning of “Relevance”]:
[CB] One is that evidence has the required tendency only if it makes the point more probably true than not.
[CB] A second answer holds that evidence is relevant only if the suggested inference is more probable than any other. Some courts have taken this view.
[CB] A third answer rejects the first two, but insists that the necessary tendency requires more than minimal probative worth, hence that there is a standard of "legal relevancy" that is more strict than logic and reason alone would indicate.
[CB] The fourth answer holds that evidence is relevant if it makes the point to be proved more probable than it was without the evidence. Here is the most lenient standard of all-the one most favoring admissibility. It is the one adopted in FRE 401.
By adopting a liberal standard, the Federal Rules of Evidence make "Relevance" a rule that allows the court to manage the case more efficiently. The ultimate truth (or at least the legal truth) must be determined by subjecting the admitted evidence to the tools of the adversary system: cross-examination, rebuttal, and argument.
[CB, Relevance and Materiality] Relevance readily divides into two subparts, and common law tradition distinguished them by separate terms. Evidence was "relevant" if it tended to establish the point for which it was offered, and "material" if the point bore on issues in the case.
[CB] No one doubts that evidence should be admitted only if it is, in the terminology of the common law, "relevant" and "material." But since both conditions must always be satisfied, insisting on two terms was a fetish, and the modern approach embraces both ideas within the single term "relevance." Under FRE 401, evidence is relevant if it tends to make more or less probable the existence of any consequential fact.
[CB, Establishing Relevance] Often the relevance of circumstantial evidence is obvious. Everyone may see how it bears on the case, what point it tends to prove and why the point counts. If the question is whether defendant is the one who robbed the bank, evidence that he said he intended to do so requires no explaining.
[CB] But relevance may not be so apparent, and explanation may be needed -for the judge as well as the jury.
[CB] Evidential hypothesis. The proponent should be prepared to advance an "evidential hypothesis" explaining why his proof is relevant.
[CB] "deduction" or "induction." Both forms involve appraising known or accepted data in order to reach a new understanding of matters not directly observed. Logicians define deductive argument as one in which the stated premises necessarily lead to a particular conclusion. ***  *** The "inductive" argument is less categorical. Logicians define it as one in which the conclusion does not necessarily follow from the underlying premises, though they at least support the conclusion.
[CB] Induction. Not only in litigation, but in science and everyday thinking, inductive argument is far more common. In a sense it is the more potent and inventive of the two forms, for it reaches further than deduction in seeking to increase understanding.
This is a difficult technical rules question. However, in simple terms, if the offered evidence is (1) within the definition of hearsay, and is not saved by an (2) exemption or (3) exception, it must be excluded under FRE 802, and the analysis of admissibility would stop here.
The analysis here goes like this:
(a) Does the evidence fit within the definition of hearsay of FRE 801(a),(b)&(c)? If the answer is NO, then it is NOT hearsay and you move to the 403 question. (You may have to explain here however how the evidence is hearsay for one purpose but not hearsay for another.) If the answer is YES you move to 801(d) and then to the other sections of chapter VIII to see if there is an applicable exemption or exception.
(b) Even though it fits the 801(a),(b),(c) definition of hearsay, is it nevertheless within some exemption that expressly defines it as "not-hearsay" or "nonhearsay" [FRE 801(d)]?
If the answer is YES, then go to 403. If the answer is NO, move on in chapter VIII of the FRE.
(c) Even though it fits the 801(a),(b),(c) definition of hearsay, AND despite it failing to be exempted by 801(d), is it nevertheless within some exception found in the rules, especially in FRE 803 and 804?
In this case you had to be careful about the statements.
RIOS: Non truth use. It fails to trigger 801(c). But clearly there is a possibility of Truth use that must be weighed in 403 and managed through instructions as requested by the offering party.
DEFENDANT PEREZ-BERRIOS: His oral assertions are hearsay, clearly being offered for truth purpose and they are potentially excludable under 802, but they are his own words being offered by his party opponent (the prosecution) and are thus covered by 801(d)(2)(A).
CO-VENTUERS’ STATEMENTS: Hearsay, potentially excludable under 802, admissible under 801(d)(2)(E) if Bourjaily’s preponderance standard can be met. Final sentence of 801 added by amendment resolves bootstrapping question so you have a totality standard and the statements may be considered. You had to break down all the elements of the exception.
Sophisticated answers would distinguish between the co-defendants’ statements (Bruton problem is avoided by the co-conspirator exception), and then between testifying and non-testifying parties.
Rule 801. Definitions The following definitions apply under this article: (a) Statement. A "statement" is (1) [1-A] an oral or [1-B] written assertion or (2) [2-A] nonverbal conduct of a person, [2-B] if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement. [Note that the "declarant" refers to who made the statment originally, the witness who testifies about the statement at trial may or may not be the declarant.]
(c) Hearsay. "Hearsay" is [c-1] a statement, [c-2] other than one made by the declarant while testifying at the trial or hearing, [c-3] offered in evidence to prove the truth of the matter asserted. [FRE 802]
MALAVET: "Hearsay" is [c-1] a statement, [c-2] which is not made by the declarant while testifying at the trial or hearing, [c-3] offered in evidence to prove the truth of the matter asserted.
Rule 802. Hearsay Rule [A] Hearsay is not admissible [B] except as provided [B-1] by these rules or [B-2] by other rules prescribed by the Supreme Court pursuant to statutory authority or [B-3] by Act of Congress.
Big Question: (1) Is it Hearsay; (2) Is it Admissible, regardless of the answer to No. 1?
Why Exclude Hearsay? (1) The absence of cross-examination (2) The absence of demeanor evidence (3) The absence of the oath
Why do we distrust Hearsay? Four Risks: (1) Risk of Faulty Memory (2) Risk of Misperception (3) Risk of "Ambiguity" or "Faulty Narration." (4) Risk of Distortion
[CB] The elements in the exception have not changed since then, and they are set out in FRE 801(d)(2)(E): Coconspirator statements are admissible if
(1) declarant and defendant conspired ("coventurer" requirement), and the statement was made
(2) during the course of the venture ("pendency" requirement) and
(3) in furtherance thereof ("furtherance" requirement).
[CB] Clearly the conversations in Inadi have nonhearsay significance: The fact that alleged co-offenders had such a conversation, coupled with the tenor of their comments, suggest a conspiracy in action, even without taking the assertions as proof of the facts they assert. As such they are nonhearsay "verbal acts." But the conversations also have hearsay significance: One speaker asserts a circumstantially relevant fact (Inadi set up the bust), which tends to implicate him in the conspiracy. And arguably the other implies (intends to communicate) that Inadi is one of their number (he is not an informant).
(2) Admission by party-opponent. The statement is offered against a party and is
(A) the party's own statement in either an individual or a representative capacity or
From Problem 4-B
Carter as owner of the automotive shop makes a damaging statement to his insurance adjuster Esher, saying that the fire started in the paint shed when Dugan put a flaming torch on the ground too close to the fumes. Thus Carter acknowledges both cause and negligence.
Personal Knowledge? [FRE 602] Problem is, Carter has no personal knowledge, is apparently motivated to collect insurance (thus describing the fire advances Carter's interests), and Carter's statement is heavily conclusory in nature.
Objection(s) Overruled, (even if Carter lacks personal knowledge) [Hearsay] [FRE 801(d)(2)(B)] The facts suggest four arguments for exclusion, and they should all be rejected (separately and together).
(1) The speaker lacked personal knowledge. But the ACN rejects this objection: It endorses common law tradition, noting that admissions are not subject to "the rule requiring firsthand knowledge."
(2) Statement was self-serving (he wanted to collect insurance proceeds). Pretty clearly this argument won't fly: The ACN says common law did not require a showing of any "against-interest circumstance" (the framers continue this tradition), and pretty clearly this point means that a "self-serving" statement fits the exception (the speaker cannot himself exclude what he said on ground that when he spoke he was trying to further his own interests).
(3) The statement gives an opinion ("too close to the fumes") The ACN indicates an intent to continue another tradition, which is that admissions are free of "the restrictive influences of the opinion rule."
(4) The speaker did not anticipate use of the statement against him. On this point, FRE 801(d)(2)(A) is silent, and here is a place where legislative silence is significant. This concern simply doesn't count. If a statement is self-interested (as seems true here), his willingness to advance his own interest suggests that he should not be allowed to complain when others seek to hold him to what he said (especially if he has a legal or moral obligation to be honest, which seems usually to be the case). A failure to anticipate the use to which a statement might later be put affects our sense of fairness, but on facts such as these it is hard to imagine that the declarant was oblivious to the possibility of being sued. Also he is well situated to offer for consideration at trial whatever explanation he has -- if the statement was wrong, the trier can ignore it.
(E) a statement  by a coconspirator of a party  during the course and  in furtherance of the conspiracy. [ACN] [Elements] The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
Deconstructing FRE 801(d)(2)(E) [F-3-a] the existence of the conspiracy and [F-3-b] the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). (E) a statement  by a coconspirator of a party  during the course and  in furtherance of the conspiracy.
Case: Bourjaily v. U.S. (p. 212)
Procedure for Co-Conspirator Statements
[CB] Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the rule. There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made "in the course and in furtherance of the conspiracy." [The Court quotes FRE 104(a).] Petitioner and respondent agree that the existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under Rule 104, must be resolved by the court. The Federal Rules, however, nowhere define the standard of proof the court must observe in resolving these questions.
[CB] Standard of Proof for the Preliminary Factual Questions? We are therefore guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof. Evidence is placed before the jury when it satisfies the technical requirements of the evidentiary Rules, which embody certain legal and policy determinations. The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied. Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case, see In re Winship, 397 U.S. 358 (1970), or a civil case. See generally Colorado v. Connelly, 479 U.S. 157 (1986). [FRE 104(a)] The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration. *** Therefore, we hold that when the preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence.
[Note that it was alright if you chose to discuss this in the 104 section above] What Proof is Required to Meet the Preponderance Standard? (a) Independent evidence, or (b) The statements themselves (which raises the bootstrapping problem)? [CB] Even though petitioner agrees that the courts below applied the proper standard of proof with regard to the preliminary facts relevant to Rule 801(d)(2)(E), he nevertheless challenges the admission of Lonardo's statements. Petitioner argues that in determining whether a conspiracy exists and whether the defendant was a member of it, the court must look only to independent evidence -that is, evidence other than the statements sought to be admitted. Petitioner relies on Glasser v. United States, 315 U.S. 60 (1942), in which this Court first mentioned the so-called "bootstrapping rule."
"Bootstrapping" [CB] [S]uch declarations are admissible over the objection of an alleged coconspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy.... Otherwise, hearsay would lift itself by its own bootstraps to the level of competent evidence.
Plain Meaning of FRE 104(a) [CB] Petitioner claims that Congress evidenced no intent to disturb the bootstrapping rule, which was embedded in the previous approach, and we should not find that Congress altered the rule without affirmative evidence so indicating. It would be extraordinary to require legislative history to confirm the plain meaning of Rule 104. The Rule on its face allows the trial judge to consider any evidence whatsoever, bound only by the rules of privilege. We think that the Rule is sufficiently clear that to the extent that it is inconsistent with petitioner's interpretation of Glasser and Nixon, the Rule prevails.
[CB] Are the Statements Reliable? Nor do we agree with petitioner that this construction of Rule 104(a) will allow courts to admit hearsay statements without any credible proof of the conspiracy, thus fundamentally changing the nature of the co-conspirator exception. Petitioner starts with the proposition that coconspirators' out-of-court statements are deemed unreliable and are inadmissible, at least until a conspiracy is shown. Since these statements are unreliable, petitioner contends that they should not form any part of the basis for establishing a conspiracy, the very antecedent that renders them admissible.
The statements MAY be reliable enough [CB] Petitioner's theory ignores two simple facts of evidentiary life. First, out-of-court statements are only presumed unreliable. The presumption may be rebutted by appropriate proof. See FRE 803(24) [Now FRE 807] (otherwise inadmissible hearsay may be admitted if circumstantial guarantees of trustworthiness demonstrated). Second, individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts. Taken together, these two propositions demonstrate that a piece of evidence, unreliable in isolation, may become quite probative when corroborated by other evidence. A per se rule barring consideration of these hearsay statements during preliminary factfinding is not therefore required. Even if out-of-court declarations by co-conspirators are presumptively unreliable, trial courts must be permitted to evaluate these statements for their evidentiary worth as revealed by the particular circumstances of the case. *** If the opposing party is unsuccessful in keeping the evidence from the factfinder, he still has the opportunity to attack the probative value of the evidence as it relates to the substantive issue in the case. See, e.g., FRE 806 (allowing attack on credibility of out-of-court declarant).
Totality Analysis: Statements AND other Evidence = Conspiracy (and other elements) = Admissibility [CB] We think that there is little doubt that a co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy. Petitioner's case presents a paradigm. The out-of-court statements of Lonardo indicated that Lonardo was involved in a conspiracy with a "friend." The statements indicated that the friend had agreed with Lonardo to buy a kilogram of cocaine and to distribute it. The statements also revealed that the friend would be at the hotel parking lot, in his car, and would accept the cocaine from Greathouse's car after Greathouse gave Lonardo the keys. Each one of Lonardo's statements may itself be unreliable, but taken as a whole, the entire conversation between Lonardo and Greathouse was corroborated by independent evidence. The friend, who turned out to be petitioner, showed up at the prearranged spot at the prearranged time. He picked up the cocaine, and a significant sum of money was found in his car. On these facts, the trial court concluded, in our view correctly, that the Government had established the existence of a conspiracy and petitioner's participation in it.
Statements Alone? [FRE 801(d)(2) Final] [CB] We need not decide in this case whether the courts below could have relied solely upon Lonardo's hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence. To the extent that Glassermeant that courts could not look to the hearsay statements themselves for any purpose, it has clearly been superseded by Rule 104(a). [But the amended language makes it clear that you need more than just the statements]. *** We have no reason to believe that the District Court's factfinding of this point was clearly erroneous. We hold that Lonardo's out-of-court statements were properly admitted against petitioner.
The fact that it fits under co-conspirator exception resolves the possible Bruton problem as to the co-defendant’s statements being admitted against Perez-Berrios. Footnote 3 in Bruton specifically stated that it was the failure to make the statements admissible under (d)(2)(E) that created the limited admissibility problem in that case, which should lead to separate trials or the non-admission of co-defendant Gonzalez’s statements.
As to RIOS: Non-truth uses survive Crawford. But this one is a non-traditional non-truth adjudication, which is problematic under Crawford, though it appears to be the choice of many courts in situations like this one.
As to defendant, Admissions doctrine is perfectly OK even after Crawford.
Co-conspirator statements are by their nature non-testimonial.
[CB] Adopting the Testimonial view to apply the prohibition The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused --in other words, those who "bear testimony." 1 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." 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. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.
[CB] *** Regardless of the precise articulation, some statements qualify under any definition-for example, ex parte testimony at a preliminary hearing.
[CB] Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. Cobham's examination was unsworn, yet Raleigh's trial has long been thought a paradigmatic confrontation violation.
[CB] Production Theory: defines the prohibition The historical record also supports a second proposition: that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless  he was unavailable to testify, and  the defendant had had a prior opportunity for cross-examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. Rather, the "right . . . to be confronted with the witnesses against him," is most naturally read as a reference to the right of confrontation at common law, admitting only those" exceptions established at the time of the founding. See Mattox v United States, 156 U.S. 237, 243 (1895). As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness's examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations. The numerous early state decisions applying the same test confirm that these principles were received as part of the common law in this country.
[CB] Exceptions? We do not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that this requirement was dispositive, and not merely one of several ways to establish reliability. This is not to deny, as the Chief justice notes, that "there were always exceptions to the general rule of exclusion" of hearsay evidence. Several had become well established by 1791. But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. Most of the hearsay exceptions covered statements that by their nature were not testimonial-for example, business records or statements in furtherance of a conspiracy.
[CB] *** [Reliability Lives!] In contrast, we considered reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. See Dutton v. Evans, 400 U.S., at 87-89 (plurality opinion).
[CB] Rule : Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.
[CB, footnote] 9. . . . Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149 (1970). It is therefore irrelevant that the reliability of some out-of-court statements "`cannot be replicated, even if the declarant testifies to the same matters in court"' (quoting United States v. Inadi, 475 U.S. 387, 395 (1986)). [Admissions Doctrine?] The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. ([Non-Truth uses] The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v Street, 471 U.S. 409 (1985).)
[The language of footnote 9 in Crawford was critical. In the exam, only Ruiz-Melendez appeared, thus avoiding any such problem, all the others failed to testify. But as to what RIOS said, the clause does not bar non-truth use, and Admissions are admissible as long as the declarant-defendant is present at trial and Perez-Berrios was.]
[CB] The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. ***
[CB] We readily concede that we could resolve this case by simply reweighing the "reliability factors" under Roberts and finding that Sylvia Crawford's statement falls short. But we view this as one of those rare cases in which the result below is so improbable that it reveals a fundamental failure on our part to interpret the Constitution in away that secures its intended constraint on judicial discretion. Moreover, to reverse the Washington Supreme Court's decision after conducting our own reliability analysis would perpetuate, not avoid, what the Sixth Amendment condemns. The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.
[CB] Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. ***
[CB] In this case, the State admitted Sylvia's testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.
[CB] The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), we held that this provision bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A critical portion of this holding, and the portion central to resolution of the two cases now before us, is the phrase "testimonial statements." Only statements of this sort cause the declarant to be a "witness" within the meaning of the Confrontation Clause. See id., at 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.
[CB] Without attempting to produce an exhaustive classification of all conceivable statements -- or even all conceivable statements in response to police interrogation -- as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. fn1
Fn1 Our holding refers to interrogations because, as explained below, the statements in the cases presently before us are the products of interrogations -- which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. The Framers were no more willing to exempt from cross-examination volunteered testimony or answers to open-ended questions than they were to exempt answers to detailed interrogation. (Part of the evidence against Sir Walter Raleigh was a letter from Lord Cobham that was plainly not the result of sustained questioning. Raleigh's Case, 2 How. St. Tr. 1, 27 (1603).) And of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.
[CB] We must decide, therefore,  whether the Confrontation Clause applies only to testimonial hearsay; and,  if so, whether the recording of a 911 call qualifies.  The answer to the first question was suggested in Crawford, even if not explicitly held: "The text of the Confrontation Clause reflects this focus [on testimonial hearsay]. It applies to `witnesses' against the accused-in other words, those who `bear testimony.' 1 N. Webster, An American Dictionary of the English Language (1828). `Testimony,' in turn, is typically `a solemn declaration or affirmation made for the purpose of establishing or proving some fact.' 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." [CB] A limitation so clearly reflected in the text of the constitutional provision must fairly be said to mark out not merely its "core," but its perimeter. In Crawford, it sufficed for resolution of the case before us to determine that "even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class." Id., at 53, 124 S. Ct. 1354, 158 L. Ed. 2d 177. Moreover, as we have just described, the facts of that case spared us the need to define what we meant by "interrogations." The Davis case today does not permit us this luxury of indecision. The inquiries of a police operator in the course of a 911 call fn2 are an interrogation in one sense, but not in a sense that "qualifies under any conceivable definition." We must decide, therefore, whether the Confrontation Clause applies only to testimonial hearsay; and, if so, whether the recording of a 911 call qualifies.
Fn2 If 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers. For purposes of this opinion (and without deciding the point), we consider their acts to be acts of the police. As in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), therefore, our holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are "testimonial." [Note that Justice Thomas agrees that 911 operators are agents of law enforcement in foonote 1 of his opinion.]
[CB: Note the reference to unwitting statements to an informant] Even our later cases, conforming to the reasoning of Ohio v. Roberts, 448 U.S. 56 (1980),4 never in practice dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination in cases that involved testimonial hearsay, see Crawford (citing cases), with one arguable exception (discussing White v. Illinois). Where our cases did dispense with those requirements even under the Roberts approach the statements at issue were clearly nontestimonial. See, e.g., Bourjaily v. United States, 483 U.S. 171, 181-184 (1987) (statements made unwittingly to a Government infor¬mant); Dutton v. Evans, 400 U.S. 74, 87-89 (1970) (plurality opinion) (statements from one prisoner to another).
[Supp.] D [Business/Public Records] Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See FRE 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U.S. 109 (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was “calculated for use essentially in the court, not in the business.”7 The analysts’ certificates – like police reports generated by law enforcement officials – do not qualify as business or public records for precisely the same reason. See FRE 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).
[Supp.] Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial – for example, business records or statements in furtherance of a conspiracy.” Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here – prepared specifically for use at petitioner’s trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.
[Supp] II [Relevant Standard: Time] The Sixth Amendment provides that "[i] n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Amendment contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine him. *** *** We held in Crawford that the Confrontation Clause is "most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding." We therefore ask whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court is a founding-era exception to the confrontation right.
[Supp] II-A [Common Law Exceptions Circa 1789] Note the cases.
(3) Should the offered evidence be excluded, despite being relevant, and regardless of the answer to the hearsay question? [FRE 403]
Relevant and nonhearsay evidence may nonetheless be excluded under FRE 403 if its probative value is substantially outweighed by the danger of unfair prejudice. This is particularly so when faced with a mixed relevance question, i.e., the evidence can be used to prove several things, some of which are permissible non-hearsay (or an "not-hearsay" exemption (FRE 801(d)) or an exception (FRE 803, 804), and some which are inadmissible hearsay. The balance between legitimate and illegitimate uses must be weighed under FRE 403.
Other matters to keep in mind here is that you may require a limiting instruction if you allow the evidence to be admitted.
The prosecution asked for a limiting 105 instruction and you then had to discuss that this was a situation where the general Rule of Delli Paoli applied and that therefore risk of truth use as to Rios was manageable. You know that the admissions doctrine is subject to almost no 403 balancing, it is admissible subject to explanation within the adversary system. The one exception or warning that I gave you was if the contents were separately offensive in a way that might offend the jury (e.g., the inclusion of racist epithets). But that was not the case here.
As to the multiple co-venturer statements, the sheer number of persons involved and the volume of material does raise 403 concerns. But that was the nature of this enterprise and organization and it was not so unfairly prejudicial or a waste of time or unfairly repetitious.
Once again, instructions managed any 403 problems, given the result you were instructed to reach.