Rule 804(b)(6) — Hearsay Exception — Forfeiture by Wrongdoing — Applies to Conspirator A Who Didn’t Directly Procure Witness’s Unavailability Where Conspirator B Did So in Course & Scope of Conspiracy and Misconduct Was Reasonably Foreseeable

United States v. Cazares, 2015 U.S. App. LEXIS 7949 (9th Cir. May 14, 2015):

A jury found defendants Fernando Cazares, Gilbert Saldana, Alejandro Martinez, and Porfirio Avila guilty of violating 18 U.S.C. § 241 by conspiring [*5]  to intimidate African-American citizens in the Highland Park neighborhood of Los Angeles and to deprive them of their constitutional right to "purchase, lease and hold real and personal property, and the right to occupy a dwelling, free from intimidation based on race." The jury found defendants Cazares, Saldana, and Martinez guilty of violating 18 U.S.C. §§ 245(b)(2)(B), and 2(a) by shooting Kenneth Kurry Wilson, an African-American man, because of his race and color and because he was enjoying facilities provided and administered by a subdivision of the State, namely the public streets of Los Angeles. The jury also found defendants Cazares, Saldana, and Martinez guilty of violating 18 U.S.C. §§ 924(c)(1)(A)(iii), (j)(1) and 2(a) by using firearms to kill Kenneth Kurry Wilson while carrying out the charged conspiracy.

The defendants are members of the Avenues 43, a Latino street gang in the Highland Park area, an area inhabited predominantly by Latinos. One of the tenets of the Avenues 43 was to harass and use violence to drive African-Americans out of the Highland Park area. The conspiracy charged in the Second Superseding Indictment alleges overt acts continuing from 1995 through 2001 and involving racial slurs, threats, assaults, harassment, and [*6]  murder directed at African-American residents of the Highland Park area, with the intent of causing the African-American residents to leave the Highland Park area.




The district court's resolution of Confrontation Clause claims is reviewed de novo. United States v. Berry, 683 F.3d 1015, 1020 (9th Cir. 2012). Additionally, "we review de novo the district court's construction of hearsay rules, but review for abuse of discretion the court's determination to admit hearsay evidence." United States v. Marguet-Pillado, 560 F.3d 1078, 1081 (9th Cir. 2009).

Factual Background on Doctrine of Forfeiture by Wrongdoing Issue

One of the defendants, Porfirio Avila, , a/k/a "Dreamer," and another Avenues gang member, Rene Madel, had been convicted of murder in state court for the murder of Christopher Bowser before the federal trial in this matter was held. The assaults and later murder of Bowser were set forth as overt acts in the Second Superseding Indictment. After Bowser was assaulted and robbed on October [*31]  26, 2000, Bowser reported the crimes to the Los Angeles Police Department. Defendant Alejandro Martinez, a/k/a "Bird," was subsequently arrested for the assault and robbery. As set forth in testimony of Avila's former brother-in-law David Cruz, a/k/a "Mousey," which was contained in the state court murder trial transcript and reviewed by the district court before trial, Martinez then directed Avila and Madel to kill Bowser. On December 11, 2000, Avila and Madel shot and killed Bowser.

In presenting the evidence concerning Christopher Bowser, the government elicited testimony from several sources regarding out-of-court statements made by Bowser implicating the Avenues, and Martinez in particular, in the initial assaults and assault and robbery. Several witnesses testified to Bowser having a long history of being harassed by the Avenues. The government contended that Bowser's statements were admissible under the "forfeiture by wrongdoing" exception to the hearsay rule. The district court, over the defendants' objections, allowed Bowser's statements to be admitted in evidence subject to a motion to strike.

LAPD Officer Fernando Carrasco testified that on October 26, 2000, he responded to [*32]  a call on a robbery investigation and spoke with Bowser who told him he had been punched, kicked, and robbed of a necklace by two Hispanic men while he was waiting at a bus stop. Officer Carrasco also testified that Bowser told him he recognized one of the Hispanic men as "Bird" from the Avenues and told Carrasco that he had had previous run-ins with "Bird." Officer Carrasco testified that Bowser was initially hesitant to press charges and stated that "he feared for his safety. He feared retaliation."

Officer John Padilla, a detective for the City of Los Angeles, testified that he was assigned to do a follow-up investigation on the assault and robbery against Bowser. Officer Padilla testified that on November 28, 2000, he received a note at his desk that Bowser wanted to press charges against "Bird" because "Bird" had driven by him in a car and pointed a gun at him. Officer Padilla testified that he went to Bowser's house in Highland Park on November 30, 2000, and interviewed Bowser. Officer Padilla testified that at this interview Bowser said he was robbed by "Bird" and another. Officer Padilla further testified that Bowser stated he had been assaulted and called the N-word by "Bird" [*33]  on several occasions. Bowser then identified "Bird" on a photo lineup and circled "Bird's" photograph. Under the photograph Bowser, in the presence of Officer Padilla, wrote, "'Bird,' No. 6, stole my chain and assaulted me." Bowser signed and dated the note. Martinez was arrested on December 3, 2000. Bowser was shot and killed on December 11, 2000.

Right to Confrontation, Forfeiture by Wrongdoing, and Rule 804(b)(6)

The Confrontation Clause of the Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Crawford v. Washington, the Supreme Court held out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless the witnesses are unavailable and a defendant had a prior opportunity to cross-examine the witnesses, regardless of whether such statements are deemed reliable by the court. 541 U.S. 36, 53-54 (2004). The decision in Crawford abrogated Ohio v. Roberts, which allowed the admission of a statement of a hearsay declarant who is unavailable for trial if it bears "adequate 'indicia of reliability.'" 448 U.S. 56, 66 (1980). In Crawford the Supreme Court held that statements taken by police officers in the course of interrogations are testimonial under even a narrow [*34]  standard. 541 U.S. at 52. The Court held that the Confrontation Clause gives a defendant the right to cross-examine witnesses who give testimony against him, except in cases where an exception to the right of confrontation was recognized at the time of the founding. Id. at 53-54.

In Giles v. California, the Supreme Court examined the "forfeiture by wrongdoing" doctrine. 554 U.S. 353 (2008). In Giles, California unsuccessfully argued that whenever a defendant committed an act of wrongdoing that rendered a witness unavailable, the defendant forfeited his right to object to the witness's testimony on confrontation grounds. Id. at 364-65. In rejecting this argument the Court stated, "American courts never--prior to 1985--invoked forfeiture outside the context of deliberate witness tampering." Id. at 366.

In Giles, the Court cited to Crawford and the previous acknowledgment of two forms of unconfronted testimonial statements that were admitted at common law. The first founding-era exception to the right of confrontation is "declarations made by a speaker who was both on the brink of death and aware that he was dying." Id. at 358. The second founding-era exception to the right of confrontation, and the one relevant to the case at hand, is forfeiture by wrongdoing, a doctrine [*35]  which permitted the admission of "statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant." Id. at 359.

In examining the history of the doctrine of forfeiture by wrongdoing, the Court observed, "In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying--as in the typical murder case involving accusatorial statements by the victim--the testimony was excluded unless it was confronted or fell within the dying-declarations exception." Id. at 361-62.

In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court explained:

   [W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that "the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds." 541 U.S. at 62. That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to [*36]  confrontation.

Id. at 833.

The Supreme Court in Giles observed that in 1997 it had approved Rule 804(b)(6), a rule "which codifies the forfeiture doctrine." 554 U.S. at 367 (quoting Davis, 547 U.S. at 833). Rule 804(b)(6) provides that a "statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result" is not excluded by the rule against hearsay if the declarant is unavailable as a witness. Causing the declarant's unavailability with the intent of doing so is critical to the doctrine of forfeiture by wrongdoing. See United States v. Leal-Del Carmen, 697 F.3d 964, 974 (9th Cir. 2012) (holding videotape admissible under the forfeiture by wrongdoing hearsay exception because the Government was responsible for rendering the declarant unavailable as a witness).

Rule 804(b)(6) applies to those who "acquiesced in wrongfully causing--the declarant's unavailability." A number of courts have ruled that a witness's statement may be admissible under Rule 804(b)(6) against a defendant conspirator who did not directly procure the unavailability of the witness, so long as a coconspirator had done so, the misconduct was within the scope and in furtherance of the conspiracy, and the misconduct was reasonably foreseeable to the conspirator. See United States v. Cherry, 217 F.3d 811, 820 (10th Cir. 2000); United States v. Rivera, 292 F. Supp. 2d 827, 833 (E.D. Va. 2003). The factors supporting [*37]  application of Rule 804(b)(6) are to be determined based on a preponderance of the evidence. Davis, 547 U.S. at 833; Cherry, 217 F.3d at 821; United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999).

District Court's Application of Forfeiture by Wrongdoing Doctrine

Defendants argue that the district court misconstrued the scope of the forfeiture by wrongdoing doctrine and violated their Confrontation Clause rights because the Government did not show that the defendants had Bowser killed for the purpose of rendering him unable to testify. Defendants argue that the court made no finding on the question whether Mr. Bowser was killed for this purpose.

Immediately before the jury returned its verdict in this case, the district court put on the record the basis for its admission of the Bowser statements under the forfeiture by wrongdoing doctrine. The district court stated: "I wanted to set out some of the reasons why I found that there was a preponderance of evidence that the defendants Avila and Martinez and others directly engaged in wrongdoing that was intended to and did render Chris Bowser unavailable as a witness." (Emphasis added.) The district court then stated that the reasons for his ruling included, but were not limited to: (1) That Bowser complained about being harassed by members of the Avenues, including Martinez; [*38]  (2) That Bowser had been beaten by individuals wearing blue uniform shirts that Avila and Martinez wore for employment; (3) That Bowser reported to the police that Martinez had robbed him and Martinez was then arrested for the assault; (4) That the mother of Bowser's child testified Bowser told her in the days leading up to his death that he wanted to see his child because the Avenues were after him; (5) That Bowser was killed eight days after he told the police that Martinez had robbed him; (6) That Bowser was killed execution style at the same bus stop where he reported being robbed and assaulted; (7) That the pattern of shots used in the Bowser murder was identical to that in another local murder of an African-American (Anthony Prudhomme); (8) That the testimony given by Mousey in People v. Avila set forth that Martinez had ordered Avila and Madel to kill Bowser and that Avila had admitted having done so to Mousey; (9) That the district court had taken judicial notice of Avila's convictions for murdering Bowser and Prudhomme; and (10) That the district court had taken judicial notice of Martinez's conviction for the robbery of Bowser and the fact that the Bowser murder was charged [*39]  as an overt act in furtherance of the conspiracy.

In addition to these reasons, the evidence at trial established that five days after Bowser's murder, a fellow gang member who was incarcerated in state prison took part in a recorded telephone conversation with Avila in which Avila admitted that he and Martinez assaulted Bowser. In this conversation Avila stated that Bowser reported the assault and that the police raided Martinez's residence. Avila then commented, "That fool's gone." Also, Mousey testified in the state court proceeding that Martinez's order from the jail to kill Bowser was also because of Bowser being a witness against Martinez.

The district court acted properly in admitting the Bowser statements at trial contingent upon proof of the elements for admission by a preponderance of the evidence. See Emery, 186 F.3d at 926. The federal courts "have sought to effect the purpose of the forfeiture-by-wrongdoing exception by construing broadly the elements required for its application." United States v. Gray, 405 F.3d 227, 242 (4th Cir. 2005). The government is not required to show that a defendant's sole purpose was to silence the declarant. See United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001). The district court's stated reasons and the record as a whole clearly support the application of the forfeiture [*40]  by wrongdoing doctrine with regard to defendants Avila and Martinez. The fact that Mousey's credibility and testimony was subject to attack does not, as defendants argue, support the defendants' position that the evidence was insufficient to support a determination that Bowser's murder was undertaken to prevent him from giving testimony.

The district court should have articulated that the Bowser murder was within the scope of and in furtherance of the conspiracy, and that the murder was reasonably foreseeable to the defendants other than Martinez and Avila so that the forfeiture by wrongdoing doctrine applied to all who had "acquiesced in wrongfully causing--the declarant's unavailability." Cherry, 217 F.3d at 811; Fed. R. Evid. 804(b)(6). However, if there was any error in the failure to do so, the error appears to be harmless. There was a plethora of evidence other than Bowser's statements that the Avenues harassed blacks and Bowser in particular. Also, the testimonial statements that Bowser made to the officers, for the most part, implicated only Martinez. The admission of the Bowser statements does not constitute reversible error.

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