Forfeit Loss: 9th Circuit Finally Decides Burden of Proof to Apply to Forfeiture by Wrongdoing

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

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.

So, what burden of proof is required to trigger this doctrine of forfeiture by wrongdoing, and can that burden be satisfied through solely circumstantial evidence? Let’s take a look at the recent opinion of the Ninth Circuit in United States v. Johnson, 2013 WL 4473957 (9th Cir. 2014).

In Johnson, 

On March 1, 2004, four assailants ambushed an armored truck as it was making a cash delivery to a Bank of America in South Central Los Angeles. One of the assailants was wearing a Rastafarian wig and at least one was wearing gloves. During the robbery, one of the armored truck security guards was shot and killed. On June 19, 2007, appellants Antoine Johnson and Michael Williams, both of whom had affiliations with a group known as the Hoover Street Gang, were indicted by a grand jury for their involvement in the robbery and murder.

At the ensuing trial, “the Government introduced several out-of-court statements made by an informant, Veronica Burgess.” The district court allowed the government to introduce these statements under Federal Rule of Evidence 804(b)(6) after determining that members of the Hoover Street Gang, acting on Johnson’s behest, threatened Burgess “becoming scarce.”

The district court relied on entirely circumstantial evidence in making this conclusion, noting that

Burgess began receiving threats the day after defense attorneys were permitted to disclose the identity of the witnesses to the defendants. On that same day, Johnson’s counsel visited him in prison. Johnson’s attorney had stated in a previous pretrial conference that Johnson was aware of the fact that his counsel could disclose the identities of witnesses forty-five days prior to trial and was eager to have this information.

The Government posited that, once Johnson learned from his lawyer of Burgess’s intent to testify, he informed members of the Hoover gang who then threatened Burgess in order to prevent her from testifying. Though Johnson was confined in a “Special Housing Unit” at the time and had lost his phone privileges, a prison guard declared that inmates in the Special Housing Unit routinely communicate with each other by speaking through the air vents and passing written messages, called “kites,” through the plumbing system. The guard also noted that he had seen Johnson communicate with other inmates in this manner and that he was “constantly” doing so. The Government presented further evidence demonstrating that inmates are generally able to communicate with those on the outside by various means.

After he was convicted, Johnson appealed, claiming, inter alia, that Burgess’s testimony was inadmissible under Rule 804(b)(6). Initially, as a matter of first impression, the Ninth Circuit held that the burden of proof under Rule 804(b)(6) is “by a preponderance of the evidence.” Then, the court concluded that

The court did not err in concluding that the Government produced sufficient evidence to demonstrate that Johnson had intentionally prevented Burgess from testifying. There is no serious dispute that the government wanted Burgess to testify and was unable to locate her. The district court concluded that, based on Johnson’s actions and the timing of Burgess’s disappearance, it could reasonably be inferred that Johnson had informed other Hoover gang members of Burgess’s identity so that they could threaten her against testifying. As the district court noted, Burgess began receiving threats one day after the defense attorneys were permitted to disclose the witness lists to their clients. Johnson’s attorney visited him on that same day, and Johnson had previously expressed interest in receiving the witness list.

-CM