Tenth Addresses "Testimonial" Statements, Affirms Meth Conviction
U.S. v. Lopez-Medina, 2010 WL 569944 (2/19/10) (Published) - Some lessons about the consequences of defense tactics with good, though not startling, news concerning what statements are testimonial.
The 10th holds that a confidential informant's ("CI") statements to law enforcement officers are "clearly testimonial" under the Supreme Court's decision in Crawford. But defense counsel waived the defendant's Confrontation Clause rights regarding the CI's statements when counsel questioned an officer about what the CI said to him and then explained: "If I open up a door, please feel free to drive into it." Such a waiver is valid as long as the defendant did not personally dissent from counsel's decision [not likely] and the decision was a legitimate trial tactic, [it was hard to tell what the tactic was here, but the 10th declared it was legitimate]. The 10th acknowledged its conclusion that Confrontation Clause rights can be waived without an explicit waiver from the defendant him or herself conflicted with the 6th Circuit's position, but noted it coincided with a few state courts' case law and prevented sly defense attorneys taking advantage.
The 10th also held statements at a change of plea hearing are testimonial under Crawford. This time, however, the statements were admissible under the rule of completeness, even though they were otherwise inadmissible. The 10th indicated Crawford might trump that rule, but the defendant never argued that. The government had the right to bring in the declarant's admission that he and the defendant conspired to distribute meth after the defense introduced the declarant's conviction in hopes of convincing the jury only the declarant was responsible for the distribution. The district court did not abuse its discretion when it refused to allow, pursuant to the rule of completeness, evidence that the government promised the declarant a downward variance if he provided assistance in prosecuting the defendant. The promise would not help explain the declarant's plea because the declarant ended up not assisting the government and so the promise did not prompt the plea. However, the 10th did not discuss how the declarant's subsequent behavior explained his reasons for the plea at the time of the plea.
The district court did not abuse its discretion in precluding the defense from crossing a government witness about the facts underlying the witness's prior conviction. Federal Rules of Evidence 609 and 403 permit evidence of the nature, but not the facts underlying, the conviction. The government did not violate Federal Rule of Evidence 404(b)'s disclosure requirement when it did not reveal the witness would testify about trading sex for meth because the government didn't know about that until trial. The testimony was admissible because the witness having a romantic relationship with the defendant reduced the chance she was misidentifying the defendant, who claimed it was his look-alike brother who was guilty. The government's cross-examination and argument referencing the defendant's illegal-alien status was okay because the defendant had testified he was law-abiding. The government was wrong to argue that the defendant's weight gain after arrest showed he was involved with meth. Although a former meth addict testified he gained weight after he stopped using meth, there was no testimony regarding the connection between the two. But the error did not affect the defendant's substantial rights. Conviction affirmed.
The 10th holds that a confidential informant's ("CI") statements to law enforcement officers are "clearly testimonial" under the Supreme Court's decision in Crawford. But defense counsel waived the defendant's Confrontation Clause rights regarding the CI's statements when counsel questioned an officer about what the CI said to him and then explained: "If I open up a door, please feel free to drive into it." Such a waiver is valid as long as the defendant did not personally dissent from counsel's decision [not likely] and the decision was a legitimate trial tactic, [it was hard to tell what the tactic was here, but the 10th declared it was legitimate]. The 10th acknowledged its conclusion that Confrontation Clause rights can be waived without an explicit waiver from the defendant him or herself conflicted with the 6th Circuit's position, but noted it coincided with a few state courts' case law and prevented sly defense attorneys taking advantage.
The 10th also held statements at a change of plea hearing are testimonial under Crawford. This time, however, the statements were admissible under the rule of completeness, even though they were otherwise inadmissible. The 10th indicated Crawford might trump that rule, but the defendant never argued that. The government had the right to bring in the declarant's admission that he and the defendant conspired to distribute meth after the defense introduced the declarant's conviction in hopes of convincing the jury only the declarant was responsible for the distribution. The district court did not abuse its discretion when it refused to allow, pursuant to the rule of completeness, evidence that the government promised the declarant a downward variance if he provided assistance in prosecuting the defendant. The promise would not help explain the declarant's plea because the declarant ended up not assisting the government and so the promise did not prompt the plea. However, the 10th did not discuss how the declarant's subsequent behavior explained his reasons for the plea at the time of the plea.
The district court did not abuse its discretion in precluding the defense from crossing a government witness about the facts underlying the witness's prior conviction. Federal Rules of Evidence 609 and 403 permit evidence of the nature, but not the facts underlying, the conviction. The government did not violate Federal Rule of Evidence 404(b)'s disclosure requirement when it did not reveal the witness would testify about trading sex for meth because the government didn't know about that until trial. The testimony was admissible because the witness having a romantic relationship with the defendant reduced the chance she was misidentifying the defendant, who claimed it was his look-alike brother who was guilty. The government's cross-examination and argument referencing the defendant's illegal-alien status was okay because the defendant had testified he was law-abiding. The government was wrong to argue that the defendant's weight gain after arrest showed he was involved with meth. Although a former meth addict testified he gained weight after he stopped using meth, there was no testimony regarding the connection between the two. But the error did not affect the defendant's substantial rights. Conviction affirmed.
posted by Anonymous at 9:10 AM
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