United States v. Antoine Johnson, 767 F.3d 815

Defendants Johnson and Williams were convicted of armed robbery and murder in a joint trial for an armored-truck heist; Burgess, an informant, testified previously but later disappeared before trial.
Burgess provided prior statements identifying Johnson (and Williams inconsistently) to police and grand jury, and the government sought to admit those statements under the forfeiture-by-wrongdoing rule when Burgess was unavailable.
The district court admitted Burgess’s statements under Rule 804(b)(6) after a pretrial hearing, finding Johnson caused Burgess’s absence.
The government presented evidence that Johnson threatened Burgess to prevent testimony, including communications through inmates in a Special Housing Unit after defense counsel disclosed witness identities.
On appeal, Johnson challenges the admissibility under Confrontation Clause, and Williams challenges a severance and potential prejudice from Burgess’s statements; the government contends the preponderance standard applies for forfeiture.
The court affirms the convictions and holds the preponderance standard governs the forfeiture-by-wrongdoing exception, aligning with the majority of circuits post-Crawford.

Issue	Plaintiff's Argument	Defendant's Argument	Held
What standard governs forfeiture of confrontation rights?	Johnson argues for clear and convincing evidence after Crawford.	Johnson contends Crawford requires higher standard.	Preponderance of the evidence applies.
Are Burgess’s testimonial statements admissible under the Confrontation Clause?	Johnson asserts forfeiture applies due to defendant’s wrongdoing.	Johnson argues the higher standard should apply post-Crawford.	Admissible under Rule 804(b)(6) with preponderance standard.
Was severance required for Williams given Burgess’s identification of him?	Williams sought severance due to potential prejudice.	No severance necessary; limiting instruction sufficient.	Severance not required.
Were other trial errors properly ruled on, including DNA, leading questions, and impeachment evidence?	Johnson alleges various due process and Confrontation Clause violations.	Prosecutorial conduct and evidentiary rulings did not amount to reversible error.	Remaining issues resolved in favor of the government; convictions affirmed.

Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial hearsay not admissible without opportunity for cross-examination; forfeiture upheld as equitable doctrine)
Davis v. Washington, 547 U.S. 813 (U.S. 2006) (post-Crawford context; notes preponderance standard generally applied in forfeiture rule)
Giles v. California, 554 U.S. 353 (U.S. 2008) (requires showing defendant intended to prevent testimony for forfeiture; confirms Rule 804(b)(6) codified standard)
Ohio v. Roberts, 448 U.S. 56 (U.S. 1980) (reliability and adequate indicia of trustworthiness in hearsay)
Thevis v. United States, 665 F.2d 616 (5th Cir. 1982) (initially espoused clear-and-convincing standard for forfeiture (overruled by Crawford precedent))
Perkins v. Herbert, 596 F.3d 161 (2d Cir. 2010) (preponderance standard applied to forfeiture after Giles)
United States v. White, 116 F.3d 903 (D.C. Cir. 1997) (preponderance standard for forfeiture)
United States v. Mastrangelo, 693 F.2d 269 (2d Cir. 1982) (preponderance standard; not overly stringent for forfeiture)
United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012) (preponderance standard for forfeiture by wrongdoing)
United States v. Jackson, 706 F.3d 264 (4th Cir. 2013) (preponderance standard applied to forfeiture)