Forfeit Loss: 8th Circuit Finds Forfeiture By Wrongdoing Applies To GF Who Aided & Abetted in Killing Witnesses Against BF

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Prompted by the recent Drew Peterson verdict and the revelation that the conviction was secured in large part due to application of the forfeiture by wrongdoing doctrine, I have posted a couple of entries (here and here). In turn, these posts have led to some animated comments that have led me to conduct a good deal of research into the forfeiture by wrongdoing and whether and to what extent the concept of transferred intent applies to the doctrine. The opinion of the Eighth Circuit in United States v. Johnson, 495 F.3d 951 (8th Cir. 2007), predates the Supreme Court’s landmark forfeiture opinion in Giles v. California by about a year, but it presents an interesting question that I hadn’t seen addressed before. Can a defendant’s intent to render a witness unavailable at somebody else’s trial transfer to the defendant’s subsequent murder trial? According to the Eighth Circuit, the answer is “yes.”

In Johnson, Angela Johnson was charged with aiding and abetting the murder of five individuals while working in furtherance of a continuing criminal enterprise and five counts of aiding and abetting the killing of these individuals while engaging in a drug conspiracy. At trial, the prosecution introduced statements made by the five individuals under the doctrine of forfeiture by wrongdoing, finding that Johnson aided and abetted in their killing to prevent them from testifying against her boyfriend, Dustin Honken.

After she was convicted, Johnson appealed, claiming that forfeiture by wrongdoing did not apply because (1) she merely (allegedly) aided and abetted in the killings; and (2) the killings were connected to her boyfriend’s impending trial and not any charges brought against her. 

The Eighth Circuit quickly dispensed with this first argument, finding that

The fact that Johnson may have only aided and abetted the procurement of the witnesses’ unavailability is of little moment. If a defendant’s role as an aider and abettor may constitute sufficient participation in a murder to warrant the imposition of a death sentence, such conduct should also suffice for the forfeiture of hearsay and confrontation objections. In other words, it “would make little sense to limit forfeiture of a defendant’s trial rights to a narrower set of facts than would be sufficient to sustain a conviction and corresponding loss of liberty.” United States v. Cherry, 217 F.3d 811, 818 (10th Cir.2000); see also United States v. Carson, 455 F.3d 336, 364 (D.C.Cir.2006) (suggesting that if members of a conspiracy agree to kill potential witnesses against them, all of the members of the conspiracy would be criminally responsible for resulting murders and “there is no good reason why the murder should give any of them an evidentiary advantage”), cert. denied, 549 U.S. 1246, 127 S.Ct. 1351, 167 L.Ed.2d 146 (2007). Furthermore, Rule 804(b)(6) applies when a defendant has “engaged or acquiesced in wrongdoing” procuring a witness’s unavailability. We believe that this language encompasses Johnson’s substantial involvement in procuring the witnesses’ unavailability.

And, the court then rejected Johnson’s second argument, finding that

We also conclude that Rule 804(b)(6) applies to Johnson even though she had worked to procure the unavailability of potential witnesses against Honken rather than against herself. “‘Because the Federal Rules of Evidence are a legislative enactment, we turn to the traditional tools of statutory construction in order to construe their provisions. We begin with the language itself.'”…The words of Rule 804(b)(6) provide only that the defendant must procure the unavailability of a witness—they do not specify the person against whom the unavailable witness was to have testified. After all, the purpose of Rule 804(b)(6), as the advisory committee to the Federal Rules of Evidence stated, was to enact a “prophylactic rule to deal with abhorrent behavior which strikes at the heart of the system of justice itself.”…Johnson’s conduct was no less abhorrent and no less offensive to “the heart of the system of justice itself” because she procured the unavailability of witnesses against Honken rather than against herself. Moreover, applying Rule 804(b)(6) in Johnson’s case is consonant with the equitable rationales for the forfeiture by wrongdoing doctrine, which includes preventing individuals from profiting from their own wrongdoing….We also observe that in conspiracy cases, witnesses’ cooperation with the government threatens not only the liberty of the particular conspirators against whom the witness may testify, but the viability of the conspiracy as a whole; and an investigation or prosecution that might start with one conspirator may result in charges being levied against other conspirators as well. In sum, it would make little sense in a case such as this to parse the forfeiture doctrine as finely as Johnson proposes. We conclude that the district court reasonably found by a preponderance of the evidence that Johnson had forfeited her confrontation and hearsay objections to the admission of statements by Nicholson and DeGeus.

-CM