United States v. Gray, 405 F.3d 227 

U.S. Court of Appeals for the Fourth Circuit

2005

Chapter

6

Title

Hearsay

Page

257

Topic

804(b)(6) Forfeiture by Wrongdoing

Quick Notes

Josephine Gray admitted to Wilma Wilson that she kill both of her husbands for their insurance and paramour (lover) because he was blackmailing her.  Robert Gray (second husband) told his family members that his wife was trying to kill him, that she was having an affair with Goode (paramour), and that he needed their help in protecting him.  Josephines argument is that she did not intend to procure Robert Gray's unavailability as a witness at THIS trial.

Court Forfeits the right to exclude

o         A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in ANY proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding

804(b) Hearsay exceptions

• The following are NOT excluded by the hearsay rule if the declarant is unavailable as a witness:

6.       Forfeiture by wrongdoing.

o    A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

o    Notes

o Based on the doctrine of fairness.

o If a party is somehow responsible for a declarants UNAVAILABILITY under 804(a), that party should NOT then be able to subsequently exclude the declarants statement as hearsay.

Forfeiture-by-wrongdoing exception elements

o         The district court must find, by the preponderance of the evidence, that

1. The defendant engaged or acquiesced in wrongdoing
2. That was intended to render the declarant unavailable as a witness and
3. That did, in fact, render the declarant unavailable as a witness.

o         The district court need not hold an independent evidentiary hearing if the requisite findings may be made based upon evidence presented in the course of the trial

Court Defendant need ONLY intend in part to procure the declarants unavailability

o         the declarant was only a potential witness

o         a person who participated in a conspiracy to silence the declarant even if that person did not himself engage in witness intimidation or other wrongdoing

o         that "any significant interference" with the declarant's appearance as a witness, including the exercise of "persuasion and control" or an instruction to invoke the Fifth Amendment privilege, amounts to wrongdoing that forfeits the defendant's right to confront the declarant.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether a defendant (killer wife) forfeits her right to exclude hearsay evidence when intends and does render the unavailability of the declarant (dead husband)?  You bet cha.

Procedure

Trial

o         Defendant was convicted in the U.S. District Court for the District of Maryland on five counts of mail fraud and three counts of wire fraud, 18 U.S.C.S. 1341, 1343, relating to her receipt of insurance proceeds following the deaths of her second husband and a former paramour. She was sentenced to, inter alia, 40 years' imprisonment, three years of supervised release, and restitution of $ 170,000

Appellant

o         Affirmed

Facts

Discussion

Key Phrases

Rules

Pl United States

Df Gray

Description

o         The indictment alleged that defendant "intentionally caused the deaths" of both her husband and the paramour and then fraudulently concealed her role in their murders from insurance companies.

o         The court first concluded, as to all counts, that the evidence supported the jury's finding that she intended to deprive the insurance companies of their "money" and "property" by means of a fraudulent scheme.

o         Second, it determined that the evidence was sufficient to prove that she intended to defraud an insurer and thus sufficient to support her conviction on Counts One through Four.

o         Third, it held that the district court did not abuse its discretion in permitting the Government to reopen its case-in-chief for the limited purpose of presenting testimony from a witness establishing that he mailed the pleadings specified in Counts Seven and Eight.

o         Fourth, the district court did not abuse its discretion in admitting certain testimony.

o         Next, the court determined that her sentence was increased based upon a factual finding that the jury was not required to make. It concluded that the district court committed an error that was plain and that affected defendant's substantial rights.

District Court Admitted the Following Out of Court Statements

1.     Robert Gray's criminal complaint alleging that Goode had tossed a 9-millimeter handgun on the table at his house to provoke an argument;

2.     Robert Gray's criminal complaint alleging that Gray had tried to stab him with a knife and attack him with a club;

3.     Statements made by Robert Gray to Darnell Gray and a police detective, claiming that Gray and Goode had assaulted him in October 1990; and

4.     Statements made by Robert Gray to Rodney Gray claiming that Goode had pulled a gun on him outside a restaurant in September or October 1990.

The doctrine of forfeiture by wrongdoing

o         Allows such statements to be admitted where the defendant's own misconduct rendered the declarant unavailable as a witness at trial.

Reynolds v. United States

o         "The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by [the accused's] own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away.

Forfeiture-by-wrongdoing exception elements

o         The district court must find, by the preponderance of the evidence, that

1. The defendant engaged or acquiesced in wrongdoing
2. That was intended to render the declarant unavailable as a witness and
3. That did, in fact, render the declarant unavailable as a witness.

o         The district court need not hold an independent evidentiary hearing if the requisite findings may be made based upon evidence presented in the course of the trial

Gray Contends - Rule 804(b)(6) should not apply

o         She did not intend to procure Robert Gray's unavailability as a witness at this trial.

Court Only requires that the Df intended to render the declarant unavailable

o         The text of Rule 804(b)(6) requires only that the defendant intend to render the declarant unavailable "as a witness."

Does Not Require

o         The text does not require that the declarant would otherwise be a witness at any particular trial, nor does it limit the subject matter of admissible statements to events distinct from the events at issue in the trial in which the statements are offered.

Applies whenever the defendant's wrongdoing was intended and render unavailable

o         Thus, we conclude that Rule 804(b)(6) applies whenever the defendant's wrongdoing was intended to, and did, render the declarant unavailable as a witness against the defendant, without regard to the nature of the charges at the trial in which the declarant's statements are offered.

Court Defendant need ONLY intend in part to procure the declarants unavailability

o         the declarant was only a potential witness

o         a person who participated in a conspiracy to silence the declarant even if that person did not himself engage in witness intimidation or other wrongdoing

o         that "any significant interference" with the declarant's appearance as a witness, including the exercise of "persuasion and control" or an instruction to invoke the Fifth Amendment privilege, amounts to wrongdoing that forfeits the defendant's right to confront the declarant.

Court Forfeits the right to exclude

o         A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding

AFFIRMED

Rules

804(b) Hearsay exceptions

• The following are NOT excluded by the hearsay rule if the declarant is unavailable as a witness:

6.       Forfeiture by wrongdoing.

o    A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

o    Notes

o Based on the doctrine of fairness.

o If a party is somehow responsible for a declarants UNAVAILABILITY under 804(a), that party should NOT then be able to subsequently exclude the declarants statement as hearsay.

Class Notes