Large Houses of Stone: Northern District of Illinois Finds Statements Don’t Qualify as Adoptive Admissions

Federal Rule of Evidence 801(d)(2)(B) provides that

A statement that meets the following conditions is not hearsay:….

The statement is offered against an opposing party and:….

is one the party manifested that it adopted or believed to be true….

So, what exactly does it take for a party to adopt another individual’s statement under Rule 801(d)(2)(B) ? The recent opinion of the United States District Court for the Northern District of Illinois in United States v. Turner, 2014 WL 4699708 (N.D.Ill. 2014), does a better job than most at answering this question.

In Turner, C. Gregory Turner was charged with

-conspiring to act with Ben Israel others in the United States as agents of the Republic of Zimbabwe from without notifying the Attorney General;

-acting in the United States as an unregistered agent of the Republic of Zimbabwe; and

-willfully conspiring with Ben Israel and others to provide prohibited public relations, political consulting, and lobbying services “on behalf of or for the benefit of” certain Zimbabwean officials who are “Specially Designated Nationals” (“SDNs”) including Robert Mugabe without first obtaining a license from the Treasury Department.

Prior to trial, the government filed a motion in limine seeking to admit a statement made by Ben Israel and allegedly adopted by Turner. Specifically,

two undercover agents posing as wealthy businessmen from India met with Ben Israel and Turner over lunch at Ben Israel’s restaurant in Hyde Park. The Government seeks to admit the following statements made during this meeting through one of the undercover agents who was present:

ISRAEL: I took a major political delegation from America to Zimbabwe.

TURNER: [Unintelligible] Mugabe.

ISRAEL: We were chosen to help lift the sanctions.

UC1: Wait … I mean you guys actually took, like politicians from here?

ISRAEL: Absolutely.

In response, the Northern District of Illinois noted that “[t]he Seventh Circuit’s test for adoptive admissions is whether ‘the statement was made in the defendant’s presence, [whether] the defendant understood the statement, and [whether] the defendant ha[d] the opportunity to deny the statement but did not do so.'” The court then noted that

The main point of contention between the parties is whether Turner’s one word interjection constitutes an adoption of Ben Israel’s statements. In one category of adoptive admission cases, the Seventh Circuit has relied on evidence that the defendant affirmatively agreed with another person’s statement. See U.S. v. Woods, 301 F.3d 556, 561 (7th Cir.2002) (finding adoptive admission where defendant “either led or responded to each of [FBI informant’s] requests and questions about the time, place, and terms of [drug] transaction”); U.S. v. Allen, 10 F.3d 405, 413 (7th Cir.1993) (finding adoptive admissions based on defendant’s non-verbal cues and replies of “yeah” or “I hear ya” to FBI informant’s statements); U.S. Rollins, 862 F.2d 1282, 1296 (7th Cir.1988) (finding adoptive admission where defendant “frequently agree[d] with [FBI informant] and participated in the give and take of the telephone conversation”); U.S. v. Young, 814 F.2d 392, 396 (7th Cir.1987) (finding adoptive admission where defendant “agreed” with fellow bank robber’s statement). In contrast to these cases, Turner’s utterance of the word “Mugabe” does not show that he affirmatively adopted or agreed with Ben Israel’s personal boast about having led a political delegation to Zimbabwe.

This then led the court to the government’s fallback position, which was that “Turner’s failure to deny, object to, or contradict Ben Israel’s statements constitutes an adoptive admission.” To win this argument, the government had to prove “that Turner’s failure to respond to Ben Israel’s statements, was ‘so unnatural that it supports the inference that [Turner] acquiesced to the statements.'”

According to the court, the leading Seventh Circuit case on the issue is United States v. Ward, 377 F.3d 671, 675 (7th Cir.2004), in which “Gregory Ward remained silent during a heated discussion in which his sister referred to ‘the money they got when they robbed the bank,’ which had gone missing.” Ultimately, the court found the case before it to be much weaker and denied the government’s motion, concluding that

Ben Israel’s statements about leading a political delegation to Zimbabwe that was chosen to help lift U.S. economic sanctions is far less accusatory or incriminating towards Turner than the statement directly linking Gregory Ward to a bank robbery. As an initial matter, Ben Israel’s first statement was a personal boast that did not directly implicate Turner: “I took a major political delegation from America to Zimbabwe.”…His next statement refers back to the political delegation without referencing Turner: “We were chosen to help lift the sanctions.”…A reasonable person in Turner’s position would not have felt compelled to deny statements that did not implicate him.

Second, Ben Israel’s statements do not describe criminal conduct. The criminal statutes at issue in this case require U.S. persons acting as foreign agents to notify the Attorney General and obtain a license from the Treasury Department before providing services to any SDNs. Ben Israel did not say anything about trying to evade these restrictions. Therefore, even if Ben Israel’s statement about leading a political delegation implicitly referenced Turner, Ben Israel was not describing illegal actions that Turner would have felt compelled to deny, object to, or contradict.

-CM