United States v. Smalls

it, being ad- that provided despite have decision counsel’s choice—not to would fur- Surely to do that should be investigate vised so. ther Dr. offer Ofshe as an appears also have enough, but counsel to expert witness—was a reasonable tactical specialized exper- Dr. discounted Ofshe’s and that decision the court California in favor the area of false confessions tise objectively not unreasonable denying preliminary psychol- the views of a local that, Having the claim. I agree said Summing up Dr. deci- ogist, Caruso. the presently necessary delay is not to attempt Ofshe not to even to offer Dr. sion grant by of the writ remanding for an witness, wrote: “As Dr. Caru- counsel evidentiary hearing to determine Strick- put it: defense would be so ‘Kristi’s best prejudice.4 land explanation, jury needs to her believe ” Kristi.’ naively jury rather

This assumes that a inno easily persuaded

would be —that they cent would confess to a crime testi

did confessor’s commit—

mony alone. to jury Of course had Kristi, jurors

believe but have would America, UNITED STATES better to cred equipped been evaluate her Plaintiff-Appellant, ibility they and the confession itself had known of the identified traits of stress- compliant to confessions been able SMALLS, Paul Othello Defendant-

compare testimony. them to her Revers Appellee. trial ing conviction where the court ex testimony very expert cluded the No. 09-2126. here, involved the Seventh Circuit noted Dr. testimony Ofshe’s went States of Appeals, defense, heart of the and had ad it been Tenth Circuit. mitted, it jury “would have let the know May 3, 2010. a phenomenon known as false confes exists, it, recognize sions to how how

to decide it fit whether the facts of the Hall, being

case tried.” United States v. (7th Cir.1996); F.3d see also State, (Fla.Ct.

Boyer v. 825 So.2d (“It

App.2002) jury is for to determine weight give Dr. Ofshe’s testimo

ny, decide whether believed theory or commonplace

his ‘the more ex ”)

planation that the confession was true.’ 1345). Hall,

(quoting reasons,

For these addition

persuasive granting case for made writ

by Judge majority Noonan in the Opinion,

I would also reverse the district court’s us, Obviously, were the before purposes. issue I would favor for remand such position

son the declarant’s would not have made the statement believing unless it to be true.” The issue this interlocu- tory appeal, presented pursuant to us to 18 3731, § U.S.C. is whether district court abused its excluding discretion in as inad- missible hearsay, thus and as outside the 804(b)(3), scope of Rule entirety of an accomplice’s nontestimonial statement to a fellow implicating inmate the accomplice and Defendant Paul Othello Smalls in a murder. holding that district court discretion, abused its we remain mindful 804(b)(3) question under “[t]he Rule always whether the statement was suffi- ciently against the penal declarant’s inter- ‘that a est reasonable the declar- position ant’s not would have made the believing true,’ unless it to be and question can be answered in light of all surrounding circumstances.” States, Williamson v. United 603-04, 129 L.Ed.2d 476 added). (emphasis I.

Philip assisting Gantz was federal drug enforcement in their investigation officials Roswell, trafficking narcotics New Williams, Mexico. Prison Richard C. Assistant United officials the Doña Ana County Fouratt, Cruces, States Detention Attorney (Gregory J. Center Las Unit- Mexico, New brief), ed States him found dead in Attorney, with on the Gantz his four- Cruces, NM, man Las overflow “cell” Plaintiff-Appellant. for within medical unit on the morning of December Herrera, Jerry Daniel Albuquerque, Gantz shared the unit fellow detain- NM, for Defendant-Appellee. Cook, ees Glenn Melgar-Diaz, Dell Walter KELLY, BALDOCK, Before and Defendant Following Smalls. an in- HOLMES, Judges. vestigation, grand jury Circuit a federal indicted the three count men on one of retaliating

BALDOCK, Judge. Circuit against an informant and one count of aWhere declarant is unavailable conspiracy to tes- to commit the same in violation 804(b)(3) trial, tify provides § Fed.R.Evid. of 18 U.S.C. count of tamper- one for the admissibility ing “[a] statement with an informant and one count of which ... making at the of its conspiracy time ... so to commit same in violation subject far tended to § declarant to ... of 18 U.S.C. and one count of liability criminal a per- killing person reasonable a federal aiding investiga- constantly § The stated that Mr. Cook “[Cl] of 18 tion in violation U.S.C. “held alleged Smalls Defendant indictment about the murder over two-month talked down,” “held Gantz’s legs Cook Gantz’s finally story. him the whole told period down,” Melgar-Diaz torso arms and killed [Cl] Defendant told face,” to- bag over plastic Gantz’s “held because he was snitch.” Mr. Gantz stran- gether resulting Gantz’s death Cook, States v. No. 06-CR-2403- I, at 41. After Aplt’s App. vol. gulation.1 RB-2, Fact and Findings of Con- Sealed indicated it would the Government Granting Law Mo- clusions of and Order penalty, Melgar-Diaz death seek (D.N.M. Sept. Suppress, at 2 tion plea agree- pleaded guilty under a sealed 2008) (Doc. rev’d, #438), 599 F.3d 1208 the trials The district court ment. severed Cir.2010).3 (10th subsequently fit- Agents as a result of Smalls and Cook Defendant placed a and recording with device ted Cl made to statement Cook an out-of-court Cook, who him in a cell with at the alone (Cl), also an in- informant confidential awaiting sentencing on an unre- time was center, implicating detention mate at the drug At the behest of lated conviction. in the and both himself Defendant Smalls engaged Cl in conversation agents, murder.2 mentioning to by newspaper him a recent indictment, informed had Prior Cl investigation an into article about FBI that he with Cook on investigators spoke expressed murder. Cl con- Gantz’s When mur- than one occasion Gantz’s more about in the that involved murder cern someone he, Defendant der. Cook told Cl that exchange might “flip,” following the oc- Smalls, Melgar-Diaz had murdered According to court: curred: Gantz. the district autopsy death was under of the case to cure An "determined that the insufficient the facts strangulation, by pres- specifically any prejudice As caused to that defendant. will be- neck, being placed cut- apparent sure on Mr. Gantz’s opinion, come from our Bruton is Nine, ting off blood flow his brain. Dr. present state of consistent the Sixth pathologist at the Office of the Medical Inves- accomplice’s law Amendment because the tigator, opined that more than one confession, statement, was unlike Cook's testi- required Gantz.” would have been to kill Mr. monial, rendering against the it inadmissible I, II, 116; App. at 290. Aplt's vol. vol. opportunity absent for defendant an cross- however, Notably, examination. Bruton Although the district severance or- court’s rule, upon Clause like Confrontation appeal, we part on der not record premised, apply it is which does non- judicial notice of Fed.R.Evid. take it under testimonial See statements. infra appears 201 as it of record in United States B.;& United Part II.A. see also States v. Smalls, 06-CR-2403-RB-1, No. Memoran- Johnson, (6th Cir.2009); 581 F.3d (D.N.M. Opinion May dum and Order Vargas, States v. United Avila 280). (Doc. 2008) Relying # Bruton v. on (8th Cir.2009). States, progeny, L.Ed.2d 476 and its the dis- suppression 3. The district court's order is reasoned into evi- court the admission trict appeal, Aplt’s App. part of the record vol. on dence of a recorded in which Cook I, page but that order has two of been alleged co- incriminated both himself and his Thus, judicial inadvertently. we take omitted before a Cl violate Defendant horts would of that under Fed.R.Evid. 201 omitted notice Bruton, right to Smalls’ confrontation. portion record. deprived his Court held defendant was right Sixth Amendment to confrontation excerpts transcription confession, 4. The are from accomplice’s made to a where his Cl and recorded conversation between Cook. postal inspector during interrogation, was Excepting spaced ellipses, joint ex- bracketed ma- at their The Court introduced trial. breaks, terials, plained limiting excerpts jury instruction tri-starred Yeah, you COOK: but know what COOK: So we had a ... bag so we was ... though nigger, that’s the easiest ya’ll like what wanna do? I’m all hell right to beat dog. I, case now I’d rather everybody fuck, like come on. We [ie., have than this case drug just playin’ really right ... we I got. conviction] one, two, three, was like go. Put it and, over his head homie you But nobody sure ain’t can’t come [Cl]: out to a ... be and then it say nothin’? come out to be a murder, mother fuckin’ homie they do, involved, COOK: Naw! If we all homie. good thing. ya’ll That’s the It So put bag [Cl]: over his head? just ain’t like one of us (laughing) COOK: No, I’m sayin’ happened? [Cl]: what put bag [Cl]: Who over the head? COOK: We killed the mother fucker. COOK: The Mexican dude. No, sayin’ I’m [Cl]: well how did this you [Cl]: And what’d do? just down, whole shit go my man? COOK: Held his hands. Oh, snitehin’, COOK: cause he was ho- [Cl]: And what [ie., did the black dude mie. Defendant do? Smalls] ring Who was the [Cl]: leader? COOK: He held his feet.[5] [ie., COOK: The Mexican Melgar- dude Diaz]. * * * [Cl]: So the Mexican ... plotted dude hit, Was it a dog? [Cl]: everything. (UI)? COOK: Like a ... grudge (UI

COOK: [unintelligible], voices over- [Cl]: Yeah. lap) real, COOK: plotted? [Cl]: Or was it even Yeah I mean ... alright, look, this is what it ... see the Really, COOK: it wasn’t even plot, no Mexican, Mexican ... it had been snitched, homie. nigger It’s like this a big thing with the Mexicans cause Everybody him, naw. you around he’d [protective been on PC custody] wussy, what, what, he was what ... so it, ... all the tryin’ Mexicans been you know how planned we’d ... get in the room on him. Yeah. [Cl]: what, [Cl]: So somebody he told on then you ... COOK: you know how me and (UI) (UI) pushin’ ... me “D” this,

talkin’ get about let’s COOK: Yeah. He get let’s told on that nigger bag on that shot nigger. that little kid. Yeah.

[Cl]: Oh! [Cl]: reproduced men, they appear in the tran- black Mr. Cook and Mr. Smalls. The script, which is duplicate found in in the referring to "the black dude” was I, 50-73; Aplt’sApp. record. See vol. vol. made Although Mr. Cook. the statement II, recording, at 265-288. The sound also a implicate face, does not Mr. Smalls on its record, part of the is consistent with the tran- only because the other man in black the cell scription. Smalls, was Mr. the reference to "the black only dude” could mean Mr. Smalls. According to the district court: Smalls, 06-CR-2403-RB-1, No. Memoran- There were four individuals in the Opinion May 7, 2008, dum and Order dated died, locked cell: the white man who at 11-12. man, Hispanic Melgar-Diaz, Mr. and two Mexican, Iwhy that’s ing toward the ‘member? COOK: gonna say ain’t nothin’. stomped “Di” on. The cat Yeah. [Cl]: Yeah! hmm. COOK: Mmm [Cl]: Alright. Alright. [Cl]: lookin’ already I’m knowin’ it’s COOK: them so there’s he told on COOK: See in- him ‘cause the Mexicans toward year or big hit for the last been on, that’s what the volved he snitch why they him. That’s something on you told me. We know detectives they know trip ‘cause wouldn’t take it, just to do with but got ain’t nothin’ all, in all snitch status. he’d been PC I ain’t happened. telling us what tell nothin’, shit, I ain’t had I don’t ya’ll dude know that? Did the black [Cl]: my That’s sto- happened. know what ... that. Nurses We all knew COOK: it, way I’m all the ry and stickin’ to in, in everybody in P ... everybody end, gonna homie. I ain’t even the, the, the, in the whats—a—(cid:127) up make no stories no more. everybody ... in medical thing knew knew. you gonna say, you what What [Cl]: really nobody say can’t Yeah. So

[Cl]: just your gonna say case indict nothin’... ass, you gonna say your bro. What Nah huh COOK: lawyer? you say Cause it’s what everybody part ... cause took [Cl]: your lawyer they really, you know the murder. I’m sayin’? what Yeah, Iwhy that’s ain’t worried. COOK: know, gonna say I I ain’t COOK: don’t one, only I if I or he could see was the gonna I’m tell him the same nothin’. he, one, only but we all had thing I told them [the detectives]. it, all can’t something to do with so we if anything happened Man they can’t ... I’m say nothin’. And dude, asleep. gonna I he ain’t So now, you they, homie ... gonna tell have nothin’ to run on me. If he ever don’t, they they, even if the feds do back, try go my behind he couldn’t. pick up, they got enough it ain’t evi- get through ju grand it ... dence to jury. They COOK: can’t do nothin’. don’t, they somebody need Sure

[Cl]: you ... I mean ... not unless talk [Cl]:

help. somebody. They got, they, grand jury ain’t COOK: something top to have off the first. got nothin’, They COOK: can’t do homie. They they ain’t no ... got weapon nobody You ain’t told about it? [Cl]: nobody sayin’ they nothin’... got ain’t nobody ya’ll. I ain’t told but COOK: got they got ain’t no ev ... ain’t noth- only people, Ya’ll homie ... are the ... in ho and, and, and, you and to tell see, they my That’s idea so still [Cl]: truth, (laughs). I ain’t did nothin’ than that. gotta up come with more (UI, overlap) voices [Cl]: They they got- gotta, Yeah. still COOK: So, so shit. I don’t (laughing) nine on this COOK:

ta come with the whole give they say. a fuck what right they’s And see now look- shit. that, you’re And sure that black [Cl]: bag? rid of the

guy got got nobody, They COOK: ain’t if they anything, they never did get- would be Hell, got I rid of the mother COOK: on on tin’ the stand me. fucker. Yeah. [Cl]: got bag? rid You

[Cl]: can’t, They they do, COOK: ‘cause if (makes noise simulate toilet COOK: you did, ... if okay, that’s ‘cause I flushing) this, you then did and .... okay, we what? so Okay. [Cl]: Yeah, everybody had a part. [Cl]: they Down in toilet. COOK: If Yeah, then COOK: so what? Can’t no- (UI, overlap) wanna voices body just no, get up say there and he positive? You’re [Cl]: it. did I COOK: know. I sat there Yeah. [Cl]: fucker it go. watched mother And gonna COOK: Plus ain’t do any- it, up. bag You how blew know way, homie. ... up blew Now, if [Cl]: there’s off ... trade Yeah, yeah COOK: No ... the air. [Cl]: Mexican, And see the actually, [Cl]: he up. up, ......it It COOK: blew blew you sayin’, know I’m put what the bag (simulates again, and I him punch- hit over the head ... noise) ... ing it down in there stuffed COOK: Yeah. Boom, got ... rid gone. of it. it’s you helped [Cl]: on holdin’ so They got ain’t nothin’... now, ‘cause, thing gettin’ it’s hectic I’m get justa COOK: Yeah. So accessory

‘cause momma don’t fittin’ to anyway. nobody But ain’t money, gonna say homie. That’s why. I gonna worry nothin’ ain’t about that shit, (UI, dog overlap). voices But, gonna you COOK: see I’m tell like though ... can’t they really ... But can do? they COOK: what trial, it it ... was make homie They can’t nothin’. That do it, simple they for the fact ... when clean one right there. That’s what it, it they when first it happened, said clean, call you homie. ah ... ah ... died he of a asthma sure, right You ... [Cl]: attack. COOK: Clean. hmm. behind,

[Cl]: Mmm ... isn’t no evidence [Cl]: If, if COOK: Clean. it is evi—we was Okay, COOK: so if died of a he asthma inall the room. What evidence could the, ... any lawyer attack that’s what be, my nigger? gonna way that’s be half decent gonna I don’t know. [Cl]: with, hit off struggle? him did he He struggle ... had no in him he had no They already Nothin’! COOK: said . you noth ... ‘member I told gate, about from the he ain’t no had stroke. oh, They that? had to come back ... truth of the matter asserted prove found, they found he was only way 804(b)(3) under Fed.R.Evid. ... but admissible ... ah ... ah ah ... sh inter penal Cook’s as a statement Suffocated. [Cl]: court assumed Cook’s The district est. autopsy. is do the Suffocated COOK: such, and, as was nontestimonial hmm. Mmm [Cl]: admissibility against of its question the, everything that mean on So COOK: lay Smalls outside Sixth Defendant. on, on, thing, ah ... evidence on the “ ” 6 Aplt’s concerns.’ Amendment’s ‘core You see good. no the crime scene I, v. (quoting vol. at 88 App. Crawford sayin’? what I’m 36, 51, 124 S.Ct. Washington, 541 U.S. him, nothin’... prints No on [Cl]: (2004)). L.Ed.2d 177 Nonethe (voices overlap). less, analyzed the admis the district court They can’t Nothin’. Nothin’. COOK: statement under sibility of Cook’s that, homie. Ain’t no do none Supreme Court’s Con framework dog. none of that ain’t no prints, jurisprudence as set frontation Clause 61-62, 65-66; I, 52-56, vol. at Aplt’s App. Roberts, 56, 100 forth in Ohio v. 448 U.S. 267-271, II, 276-77, 280-81. vol. (1980). The 65 L.Ed.2d 597 S.Ct. recording of the conversation Based on the analysis, court focused its consis district official who testimony prison of a and the Roberts, question on the whether tent with encounter, the surreptitiously observed firmly fit “within a root Cook’s statement foregoing characterized the district court hearsay exception” or otherwise showed ed as Cl communication between of trustworthi “particularized guarantees “amiable:” Roberts, 448 U.S. S.Ct. ness.” at a normal The conversation occurred extensively court relied 2531. The district and in the tone of two to low volume opinion Supreme plurality on the Court’s oth- who were familiar with each people 116, 119 S.Ct. Lilly Virginia, the two er and who were friends. While (plurality), 144 L.Ed.2d at a distance standing individuals were which, turn, on the Roberts’ relied began, they apart when the conversation explicit “make that ac framework to eventually moved close to each other complices’ inculpate confessions that partition on a and sat and even leaned firmly criminal are not within defendant hesitancy There was no spoke. exception rule as rooted any caution in indicating in their words in our concept has been defined Con any per- the other speaking or fear of jurisprudence.” Lilly, frontation Clause at various times son. The two smiled Lilly 527 U.S. “ the conversation. during premised on the basic understand ‘was I, at 117. Aplt’s App. vol. person one accuses another ing that when in circumstances which of a crime under The Government moved the district by inculpating gain declarant stands to admitting a order the pre-trial court for another, presumptively the accusation is into evidence “jailhouse confession” Cook’s guar “particularized suspect [absent trial. The at Defendant Smalls’ Govern- must be sub trustworthiness”] antees of out-of-court state- ment asserted Cook’s jected scrutiny the of cross-examina- hearsay ment was nontestimonial offered against the witnesses Confrontation be confronted 6. The Sixth Amendment's Const, provides: prosecu- Clause "In all criminal amend. VI. him.” U.S. tions, enjoy right the the accused shall

773 ” States, (quoting 1887 error of law.” Koon v. tion.’ Id. at S.Ct. Illinois, 81, 100, Lee v. U.S. S.Ct. 135 L.Ed.2d (1986)).7 (1996). Based on 90 L.Ed.2d 514 see, As we shall because the court foregoing, the district held proceeded district court under an outdated both inculpating Cook’s statement himself law, and erroneous view of the its findings firmly Smalls fell outside a and Defendant as to the statement’s conclusions unre hearsay rule. Ac- exception rooted liability, by an improper clouded charac court, the cording to the district context terization of the nature of Cook’s state which made his statement confirmed Cook ment, short, point. In beside untrustworthy that it was and unreliable: analysis district court’s of the Govern of Mr. statement [T]he context Cook’s pre-trial ment’s motion failed to conform to renders it inadmissible under Federal admissibility standard of for nontesti 804(b)(3). Mr. Rule of Evidence Cook hearsay monial set by Fed.R.Evid. accomplice interrogated an who was 804(b)(3) Cook’s “statement was —whether by government an of the while in agent sufficiently against penal declarant’s rendering pre- custody, his statement interest ‘that a reasonable Moreover, sumptively unreliable. Mr. position declarant’s would not have made attempted points various his the statement unless it to believing be himself, to exculpate to down- true’ ”—and manifested a clear error of intentional, play the death as not and to 603-04, Williamson, judgment. the death shift much blame for S.Ct. 2431. Thus, Mr. to his Gantz co-defendants. of Mr. recorded out- any portion Cook’s A. inculpates of-court statement Mr. Pointedly, longer good Roberts was no clearly hearsay. Smalls is inadmissible law when the district court made its deci- I, Aplt’s App. vol. at 92-93. case, sion in rendering Lilly a dead letter and not eviscerating only pre-

II. sumption unreliability, but the entire review the district court’s ul We upon foundation which the district court’s entirety that the timate decision Cook’s order rested. Roberts said: out-of-court statement was inadmissible as pres- declarant not [W]hen is only for an Defendant Smalls trial, ent for cross-examination at abuse of discretion. We “will disturb normally requires Clause Confrontation evidentiary an ruling absent distinct he showing that is Even it unavailable. showing clearly on a based then, his fact, an admissible finding erroneous erroneous it reliability.” bears “indicia of adequate law or a clear conclusion of manifests error Contreras, Reliability be can inferred without more judgment.” United States (10th Cir.2008) in a ease within (quota where evidence falls omitted). firmly hearsay exception. “A district rooted tions court defini cases, tion discretion other the evidence must ex- abuses its when makes be Lee, Lilly, presumption by 7. In as in the statement at issue that the state can rebut this accomplice during was that an a demonstrating ‘particularized guarantees of made of ” Lee, interrogation. the custodial "In Su- Dorsey, Earnest v. trustworthiness.’ preme held that the Court custodial Lee, (10th 1996) (citing 1127 Cir. 476 nontestifying accomplice presumptively of a is 2056). S.Ct. U.S. at inadmissible, unreliable and therefore but words, any of Roberts re- eluded, showing par- portion of whether at absent a least Davis, In good of trustworthi- mained law.9 guarantees ticularized admissibility of question of the placed ness. hearsay entirely nontestimonial statements 66,100 Roberts, 2531. at 448 U.S. the confines of the Confrontation outside begins of Roberts’ demise Our narrative academic: and rendered Roberts Clause criticized the Rob Crawford, which with question the ... The answer to as both under overinclus erts standard Crawford, even if not ex- suggested underinclusive or The standard was ive.8 it failed to exclude the held: plicitly too narrow because testimonial state parte of all ex admission “The text of the Confrontation Clause ments, protect against “failed to and thus focus testimonial [on reflects n violations.” confrontatio paradigmatic It hearsay]. applies ‘witnesses’ 60, 124 at S.Ct. 1354. Crawford, 541 U.S. words, against the accused—in other was overinelusive or too The standard testimony.’ who ‘bear 1 N. those required “close constitu broad because Webster, Dictionary An American of hearsay scrutiny” of nontestimonial tional (1828). English Language ‘Testi- the core “far removed from concerns turn, ‘a mony,’ typically solemn prob resolved the Clause.” Id. Crawford declaration or affirmation made for by holding the lem of underinclusiveness establishing proving purpose an abso Clause constituted Confrontation fact.’ An accuser who some Ibid. admissibility of a testimoni lute bar govern- makes a formal statement hearsay where the declarant al in a testimony ment officers bears testify at trial and the was unavailable to that a who a ca- sense makes opportunity to prior defendant had no acquaintance sual remark to does Id. at cross-examine the declarant. U.S., not.” 541 S.Ct. 1354. being, For the time how S.Ct. 1354. clearly A limitation so reflected in the ever, “definitively the Court declined provision text the constitutional must overinclusiveness, problem resolve” the merely out not its fairly be said to mark namely the issue of whether the Confron “core,” perimeter. but its admissibility of non- tation Clause left Davis, 823-24, 126 S.Ct. 2266. solely testimonial to the law of statements 61, 124 hearsay. Id. at S.Ct. 1354. Regrettably, we have been slow to come later, control- compliance Two terms the Court Davis v. into with the Court’s In v. Ra- Washington, ling precedent. 547 U.S. United States (10th mirez, (2006), Cir.2007), a squarely 165 L.Ed.2d 224 confront- F.3d subsequent decision to both ed the issue whether Confrontation Crawford Davis, concluded, erroneously any application Clause had to nontestimo- we statements, or, case, nary nial in other a cite to the latter that district Davis, Crawford, admissibility the character addressed the of a the Court addressed statement, of two first involved a state- statements. The during police wife's made inter- during operator defendant, ment made to husband, rogation, that her emergency. second course of a domestic The had not stabbed the victim in self-defense. At response a statement made involved trial, privilege invoked the marital wife questioning police at the secured scene of Crawford, testify. and refused to disturbance. Neither declarant domestic 38-40, 124 S.Ct. 1354. Davis, at trial. available as witness 817-21, 126 S.Ct. 2266.

775 analyze admissibility should the “[T]he courts still broad. Roberts test was too ‘malle- hearsay statements un permitting of nontestimonial able’ in the of admission ex pre-Crawford, rubric of parte der the Roberts. testimonial statements.” Id. Ramirez, 1247; 479 F.3d at 127 importantly S.Ct. 1173. More for our cf. Nash, 1217-20 purpose, States v. potentially “Roberts excluded too Cir.2007) (10th (holding the of testimony admission much it imposed because Con- hearsay out-of-court statements violated frontation Clause restrictions on nontesti- the Clause without first ad hearsay governed by Confrontation monial dressing 413-14, whether those statements consti Id. at 127 Clause.” S.Ct. 1173. In end, tuted or nontestimonial hear testimonial the the made clear that Craw- Williams, say); contra United v. entirety: States in overruled Roberts its ford Cir.2007) (2d (recogniz F.3d respect to With testimonial out-of- Davis, ing that after “the Confrontation statements, court is more re- Crawford ... Clause does not bar nontestimonial Roberts, strictive than may and this statements, guarantees whatever their of improve accuracy the of factfinding in trustworthiness”). just days Yet sixteen some criminal cases.... But whatever Ramirez, prior opinion to our in the Su in improvement reliability pro- Crawford v. preme Bockting, Court Whorton respect duced must be considered 406, 127 S.Ct. 167 L.Ed.2d together with elimination of Crawford’s explained: again protection against Confrontation Clause had held that the Roberts Confrontation the admission of unreliable out-of-court permitted the of a Clause admission nontestimonial statements. Under Rob- erts, hearsay statement made declarant nontestimonial out-of-court the testify who was unavailable if subject prior statement not cross-ex- statement bore sufficient indicia relia of amination could not be with- admitted bility, either fell judicial because out determination regarding firmly hearsay exception reliability. Crawford, within rooted on Under hand, “particularized or because there were other Clause Confrontation relating of guarantees application trustworthiness” no has to such statements U.S., question. permits and their admission therefore 66, 100 S.Ct. even reliability. lack indicia of 419-20, (emphasis Id. at 127 S.Ct. 1173 added). and overruled Roberts Crawford standard, say, Needless to the Roberts of “[testimonial held statements applied both testimonial nontes- absent trial”

witnesses from are admissi statements, hearsay timonial plainly had “only ble where the declarant is unavail been overruled when district court is- able, has where defendant relying sued its 2009 order stan- on that opportunity had a prior cross-examine deny admissibility dard to en- U.S., 59, 124 [the witness].” S.Ct. tirety Cook’s statement in this case. Indeed, panel recognized of this Court so 412-13, Ortiz, Bockting, 296 Fed.Appx. Garrison (10th added). Cir.2008) Bockting (emphasis (unpublished), reiterat- 725-26 when ed that be- rejected good overruled Roberts as “not law” Ramirez’s Crawford admissibility cause the latter’s holding ap- test for district courts should proach admissibility was both too narrow too nontestimonial at 68- Crawford, the confrontation.” hearsay under Roberts statements standard, 69, De Unfortunately and “it is clear that the 1354. for stated Smalls, in test established Roberts the state of trustworthiness fendant current the added). (emphasis has been overruled.” present as facts applied law dictates Johnson, Accord United States v. 581 F.3d i.e., assumed, court that what the district (6th Cir.2009) 320, (recognizing Cook’s statement is nontestimonial.10 held the Clause has Davis Confrontation begins again Once our narrative hearsay bearing on no nontestimonial Crawford, left “for an wherein Court longer applies and Roberts no statements any compre other to out a day spell effort statements); also to such see United ” of ‘testimonial.’ Id. at hensive definition Jordan, 509 F.3d 201 n. 5 States v. Court, however, 124 S.Ct. 1354. The Cir.2007) (4th (recognizing the Rob “testimony” a recognized “typically sol as standard once used to determine the erts emn declaration or affirmation made for admissibility hearsay of nontestimonial or purpose establishing proving ); did not survive statements Crawford (quo at some fact.” Id. 124 S.Ct. 1354 Larson, States v. United omitted). banc) (9th Cir.2007) (en tations The (same); and brackets Court 4n. distinguished the “formal statement to Pursley, F.3d but see States (10th Cir.2009) officers,” testimonial, government to which is (referring passing and from “par acquain Davis the “casual remark to an Crawford Roberts); tance,” tially] generally see overruling” Id. which is nontestimonial. The B. Laird Christopher & Kirk Mueller C. acknowledged Court that “[w]hatever else 8.130, § patrick, Federal Evidence at 173 covers, applies term [testimonial] 2007) (“Roberts (3d appears ed. to be prior testimony prelimi a minimum to at a dead letter after the Court’s decisions nary hearing, jury, grand before recently more Davis and trial; police interrogations.” former and to Crawford ”). Bockting. 68, 124 Id. at S.Ct. 1354. Davis, Subsequently spoke

B. to the nature of testimonial statements in specific interroga- context of police As the court recognized, district again tions. to The Court declined at- testimonial Cook’s statement were tempt produce “to exhaustive classifica- be an easy would case. Because Cook tion of all conceivable statements —or even presumably will his Fifth invoke Amend all response conceivable statements in to to right ment remain silent Defendant police interrogation either testimonial trial testify, Smalls’ unavailable be —as Davis, or nontestimonial.” and because no Defendant Smalls has had In holding that state- prior opportunity to cross-examine Cook during ments to a 911 operator made statement, about latter’s course emergency of a domestic were non- Clause would bar Confrontation its admis similar testimonial while statements made sibility: “Where testimonial statements issue, police at the secured scene of domestic reliability are at indicium of testimonial, disturbance were the Court satisfy sufficient constitutional demands prescribes: the one the Constitution reasoned: argument, accept Judge At oral Small’s con- Brack's memorandum counsel point: willing go ceded the "I'm forward is that it is nontestimonial. That's fine." Davis, are nontestimonial when officers are Statements criminal offenses.” police 5, in the interroga- made course of 830-31 n. 126 S.Ct. 2266 (empha- added). objectively tion under in- sis circumstances dicating that primary purpose of the Summers, In a decision post-Crawford interrogation police is to enable assis- but pre-Davis, held “a we statement is ongoing to emergency. tance meet an testimonial if person a reasonable in the are testimonial when the [Statements] position objectively declarant would of objectively circumstances indicate that foresee that might his statement be used emergency, there is no such ongoing and in the investigation prosecution or aof primary that the purpose interro- Summers, crime.”11 414 F.3d at 1302 gation prove past is to establish or added). (emphasis Upon inspection, close potentially events relevant to later crim- Summers’ ap- definition “testimonial” prosecutions. inal pears somewhat in tension with Davis’ strictures, The acknowledged Id. that perhaps overly “even for broad exists, interrogation First, it is in the when final two reasons. Summers’ definition statements, analysis the declarant’s not the does not require the district court to ac- interrogator’s questions, that the Confron- count for the “essential” element of for- requires mality tation Clause us to evaluate.” necessary Id. which is to render 1,n. Davis, at 822-23 126 S.Ct. 2266. The Court testimonial. 547 U.S. imply 5, did not to n. added intend “that 830-31 (stating S.Ct. 2266 “for- any mality statements made the absence of is indeed essential to testimonial utterance”). interrogation necessarily Second, nontestimoni- Summers’ definition The no willing al. Framers were more to does not require the district court to con- exempt from cross-examination volun- sider a “primary statement in terms of its 822, testimony open-ended purpose.” teered or to answers Id. at 126 S.Ct. 2266 questions exempt than to (recognizing every were an- not statement made Id.; testimonial). interrogation.” response swers detailed interrogation see is Summers, 1287, States v. For example, F.3d a reasonable provid- (10th Cir.2005) (holding ing 1302-03 operator as testi- information a 911 in the may monial declarant’s statement “How did course of an emergency well foresee you guys find might us so fast?” made to that her arrest- be used in the officers). Nonetheless, ing investigation crime, prosecution Court rec- or of a but “that ognized formality is indeed primary purpose essential is not the for which utterance,” to testimonial but not a “high declarant makes the “A statement: of such: “It 911 call degree” imports sufficient for- ... and at least the initial interro- mality, view, [police] gation our lies to conducted in connection with a 911 Townley, In United States v. were made under circumstances which would (10th Cir.2007), opined we that Davis objective reasonably lead an witness to be- interpretation "lends credence to court’s lieve that the statements would be available ” posited of 'testimonial' in [Summers]." See Crawford, for use at a later trial.' 541 U.S. ("We Pursley, also 577 F.3d at 1223 have Davis, 124 S.Ct. the Court interpreted validating preexist Davis as our explained opinion set "[o]ur Crawford ”). ing definition of 'testimonial evidence.’ forth various formulations the core class of appears Summers’ definition to arise out of a statements, but testimonial found it unneces- formulation tendered to the Court in Crawford Davis, sary any endorse them.” by amici National Association Criminal De (quotations, U.S. at 126 S.Ct. 2266 definition, According Lawyers. fense to that brackets, omitted). and citation " testimonial statements are 'statements that one

call, to ment informant” or “statements from ordinarily designed primarily fact, “clearly but to de- to another” are nontesti prove prisoner some establish Davis, requiring po- current circumstances scribe monial.” States, Id. at 126 S.Ct. 2266 (citing Bourjaily lice assistance.” v. United omitted). 171, 181-84, (quotations and brackets Evans, 144 Dutton v. L.Ed.2d Davis, Synthesizing Crawford 87-89, 210, 74, 27 400 91 S.Ct. U.S. today a of a might we formulate definition (1970) (plurality)).12 L.Ed.2d 213 Similar a for statement which reads: testimonial Judge Sotomayor’s then ly, beginning with by made the declarant mal declaration for the Circuit in opinion Second United considered, that, indi objectively when (2d Cir.2004), Saget, v. 377 F.3d 223 States primary purpose cates the for which relied on defini our sister circuits have was made was that of estab declaration akin to that which we tions of “testimonial” potentially fact lishing proving or some in to hold “a declar tendered Summers Or, to prosecution. relevant to a criminal ant’s statements to a confidential infor conform to the current state of better mant, whose true is unknown to the status A precedent, might say: Tenth we Circuit declarant, testimony do not constitute if a formal statement is testimonial reason meaning Saget, within the of Crawford.” position in the of the declarant able J.); (Sotomayor, at 377 F.3d 229 accord objectively primary would foresee Johnson, (recognizing 581 F.3d at 325 in purpose of the statement was for use unwittingly a declarant’s made investigation prosecution of a crime. a wearing to a confidential informant wire Summers, 414 As See F.3d we “ testimonial); is not v. United States Wat Summers, in recognized proper ‘[t]he (7th Cir.2008) son, 583, 525 F.3d 589 whether the declarant intends quiry is Udeozor, (same); States v. 515 testimony against to the accused.’” bear (4th Cir.2008) 260, (same); F.3d Unit n. 9 v. (quoting Id. United States Underwood, 1340, ed States v. 446 F.3d (6th Cir.2004)). Cromer, 389 F.3d (11th Cir.2006) (same); United States by a court And the standard which meas (3d Hendricks, 182-84 objective ures the intent is an declarant’s Cir.2005) (same). Davis, one. See 547 U.S. at 126 S.Ct. 2266; Summers, 414 F.3d at 1302. legal All this leaves no as to the doubt

Fortunately, we need not now resolve character of statement. Cook’s re- Cook’s Cl, tension between Davis and corded statement known to apparent Summers, inmate, only a a unquestionably or tender definitive definition fellow is “testimonial,” denying because Cook’s statement nontestimonial. In its order toto, admissibility regardless is nontestimonial which statement’s the dis- foregoing erroneously we In trict court characterized the apply. definitions Davis, expressed the Court the view that encounter between Cook and Cl as a cus- unwittingly interrogation spawning purported- “statements made to Govern- todial Dutton, Bourjaily, In a confidential clan- 91 S.Ct. 210. In both informant destinely cases, recorded conversation with the although the the Court held that defen- declarant, implicated in which the latter opportunity dant had no to cross-examine the drug Bourjaily, defendant in a deal. declarant, the declarant’s admission of 173-74, Dutton, pris- 107 S.Ct. 2775. In implicating the out-of-court oner, murder, alleged accomplice an in a defendant did not violate the Confrontation prisoner stated to another that if not for the Clause. defendant, “we wouldn't be in this now.” was an government placement “Mr. Cook coordinated the ly unreliable statement: interrogated encouraged an of the fellow inmate and accomplice who was him custody, question while in Cook. agent government un- presumptively rendering his statement may But we properly whether label Cl’s I, App. vol. at 93. Aplt’s reliable.” encounter with interrogation Cook as an Perkins, Illinois v. remote point some sense is beside the (1990), Supreme L.Ed.2d because Davis establishes that not every established, albeit in the context an response statement made interro- violation, alleged a con- an Miranda Rather, gation testimonial. “in suspect between incarcerated versation interrogation some instances” does “tend agent and an undercover does not consti- generate responses.” testimonial Perkins, interrogation. a tute custodial Davis, 1, 547 at n. U.S. 822-23 126 S.Ct. 295-97, 110 496 U.S. at S.Ct. 2394. We added). (emphasis 2266 properly cannot label Cook’s encounter We focus our attention not on the interrogation Cl as a custodial be- with questions, of Cl’s but on nature the nature ingredients ‘po- cause essential a “[t]he of responses, of Cook’s because as the Su atmosphere’ compul- lice-dominated Davis, preme Court teaches in “even when are when an present sion not incarcerated exists, interrogation it is anal final speaks freely to person someone whom he statements, ysis the declarant’s not the at believes to be fellow inmate.” Id. questions, interrogator’s that the Confron Cook, 2394; see F.3d at 110 S.Ct. 599 Clause requires tation us to evaluate.” 1213-15. added); Udeozor, (emphasis Id. cf. may properly Nor we Cl’s label at 270 (suggesting F.3d “[t]he intent “questioning” of Cook outside a custodial police of investigators officers or is interrogation any gener context as under relevant to determination of whether a ally accepted or formal any definition is statement ‘testimonial’ if [but] it is of sense that term. See Third Webster’s position first the case that a in the Dictionary English New Int’l Lan reasonably of the declarant of would have guage (defining “interrogate” expected that his statements would be question typically formality as “to end, To prosecutorially”). used such we ...”); Davis, 126 S.Ct. first observe that statement Cook’s (observing inquiries of a “[t]he not, degree, slightest even formal operator in the call police course of a 911 declaration. Cook’s statement thus lacks sense, interrogation in one but not in a formality “essential to testimonial ut qualifies any under sense conceivable Davis, at terance.” 547 U.S. 830-31 n. definition”). very recently we As ex Moreover, 2266. 126 S.Ct. Cook did not Cook, plained companion case for make his statement to the “primary Cl at F.3d 1216: purpose” establishing proving facts Here, no question there that Cook relevant to a criminal prosecution. See id. spoke 822, 827, freely with the infor- at 2266. cooperating Obviously, 126 S.Ct. mant, coerced, was not what the circum- Cook would have shared he did surrounding stances their conversation had known the he Government record nothing police interroga- ing were akin to his his statement or that cellmate was Watson, view, 589; tion. In our such at question- casual CI. See Udeo zor, ing by equate Objectively a fellow inmate does not 515 F.3d at 269. viewed ‘police interrogation,’ though standpoint, even from Cook’s his statement was their admis- “permits and thus an statements remarks to akin to casual much more reliability.” declarations lack indicia than formal sion even acquaintance Crawford, an official. See S.Ct. Bockting, 549 U.S. in no sense intended 1354. Cook sure, hear- Fed.R.Evid. 802 renders To be testimony Defendant against to bear in Rule 801 as out-of-court say, defined es- Smalls; sought to in no manner prove in evidence to “offered investiga- use in a criminal facts for tablish asserted,” general- of the matter the truth Summers, 414 prosecution. See tion or con- because it is precisely inadmissible ly & n. 9. Cook boasted at 1302 F.3d Williamson, 512 unreliable. See sidered murder re- of a cold-blooded details The by a fellow questioning” to “casual sponse however, subject rule, long been has Cook, friend. apparent inmate hearsay state- Because certain exception. is un- at 1215-16. Cook’s F.3d claims subject legitimate are less ments any legiti- doubtedly nontestimonial under of Evi- unreliability, Federal Rules view of the law. mate admissibility. One for their provide dence hearsay rule is an out-of- exception to the C. pe- the declarant’s court statement “[o]nly [testimonial] Because is “not nal interest. Such a statement ... cause the declarant to be statements if the by hearsay [even] the rule excluded meaning within the Con ‘witness’ a witness.” is unavailable as declarant Davis, 821, Clause,” 547 U.S. frontation (b)(3) 804(b). de- Fed.R.Evid. Subsection 2266, and because Cook’s state 126 S.Ct. against penal a statement interest fines nontestimonial, Fed.R.Evid. is ment “A which at the follows: 804(b)(3) admissibility, sub determines its making ... so far tended to time of its course, balancing 403’s test. ject, to Rule of to ... criminal liabil- subject the declarant Arnold, 177, 486 F.3d See United States v. person in the ity ... that a reasonable (en banc) (6th Cir.2007) (explaining 192-93 have made position would not declarant’s only question pertinent the to the it to be believing the statement unless admissibility of nontestimonial 804(b)(3). “Rule Fed.R.Evid. true.”13 requirements of whether it meets the 804(b)(3) on the commonsense Evidence). is founded Rules of As we the Federal even rea- people, notion that reasonable just Clause explained, the Confrontation people especially who are not hon- simply apply not to nontestimonial sonable does thought implicate According plain language interest were Confronta of Rule 804(b)(3), admissibility only of state jurisprudence "[a] and therefore re tion Clause tending expose the declarant ment 'particularized guarantees trust quired of liability exculpate and offered to criminal worthiness,’ showing or a that this requires presence of "corrobo accused” exception 'firmly rooted.'" rating clearly indicate circumstances [that] Wexler, (2d Cir. v. States trustworthiness of the statement.” Fed. (citations omitted); 2008) see Idaho added); 804(b)(3) (emphasis see Jor R.Evid. 805, 822, Wright, 110 S.Ct. dan, the de 509 F.3d at 202 n. 6. Prior to ("To be admissible L.Ed.2d 638 Roberts, many our sister circuits mise of of interpret [as the Confrontation Clause under "corroborating also held same sort ], hearsay evidence used to ed in Roberts necessary Rule circumstances” were under possess indicia [had to] a defendant convict 804(b)(3) reliability of a self- to establish the reliability by inherent trust virtue of its surprising inculpatoiy This is not statement. worthiness, to other evi not reference during given arose that the "confusion trial.”). dence at against penal period when statements [all] est, self-inculpatory broadly to make self-inculpatory tend confession does they unless believe them to be statements not make more credible the confession’s Williamson, true.” 512 U.S. at 600,114 non-self-inculpatory parts.” Id. words, other circum- “[t]he S.Ct. 2431. In directing district courts to reliability guaranty stantial for declara- exclude self-exculpatory portions of other- is the assumption tions interest statements, self-inculpatory wise the Court persons do not make statements explained: moreover “Self-exculpatory damaging which are to themselves unless exactly statements are peo- the ones which good satisfied for reason that ple are likely most to make even when advisory true.” Fed.R.Evid. commit- false; they are proximity and mere tee’s notes. other, self-inculpatory, statements does not Consistent with this “commonsense no plausibility increase the of the self-excul- guaranty” tion” and “circumstantial of reli patory statements.” Id. ability, the Court Williamson construed The Court accurately observed that the meaning “statement” within Rule “ ‘arrest statements of a codefendant have 804(b)(3) to “cover those declarations traditionally been with special viewed sus- or remarks within the confession that are picion. strong Due to his motivation to individually self-inculpatory.”14 William implicate the defendant and to exonerate son, 114 S.Ct. 2431. The himself, a codefendant’s statements about rejected the view “that an entire what the defendant said or did are less narrative, including non-self-inculpatory ” ordinary credible than hearsay evidence.’ (but parts excluding clearly self-serv added) Id. at (emphasis S.Ct. 2431 ...) ing parts may be admissible if it is in Lee, (quoting aggregate self-inculpatory.” Id. at 2056). But even at a time when Roberts 601, 114 Rather, in S.Ct. 2431. the Court’s yet had not been overruled and the law of

opinion: right to confrontation re- most faithful reading [T]he of Rule blurred, mained the Court stopped well 804(b)(3) is that it does not allow admis- endorsing short of proposition that statements, non-self-inculpatory sion of 804(b)(3) Rule an accomplice’s renders they if even are made within a broader implicating statement a generally narrative that is defendant a self-inculpato- ry. may just presumptively The district court not crime regardless as- unreliable n 804(b)(3) purposes sume for of Rule that Importantly, of the circumstances. self-inculpatory “[tjhere a statement is because it recognized many are cir- part a is fuller confession 804(b)(3) and this is cumstances in which Rule does especially true when the statement im- allow the admission of statements that in- plicates someone else. culpate defendant,” a criminal including 600-01, “the confessions of arrested accomplices 114 Id. S.Ct. 2431. The Court truly self-inculpatory, noted fact that a rath- “[t]he is self- inculpatory reliable,” merely than attempts does make more er to shift or blame fact person making curry but “the that a is a favor.”15 Id. at S.Ct. Williamson, 596-97, 14. At issue in Williamson was the admissibili- Williamson. ty 114 S.Ct. 2431. of statements the declarant made after he trafficking. had been arrested for cocaine position 15. The Court’s is consistent with the statements, during The made a in- custodial Advisory “by Rule Committee’s view that no terrogation, belonged indicated the cocaine implicating means” must "all statements an- true) added). consisting without it to be declarant’s state- (emphasis “[A] from a X element of magically transformed T committed is not confession ment ” (Sca- into one against penal interest Y.’ Id. at S.Ct. crime merely because measure, that is inadmissible lia, J., By same concurring). impli- names another declarant police sig- give statements that “other Id. at co-defendant.” possible cates also, may crime nificant details about the (Scalia, J., concurring). situation, against the on the be depending (but interest.” Id. S.Ct. only) exam- declarant’s the best not Perhaps that “whether self-inculpatory” explained statements The Court ples “truly persons arise against only third ... can self-inculpatory admissible is a statement provided conspiracy. The Court cases viewing it in context:” determined be apropos following explanation, 804(b)(3) Rule is al- question “The under affairs: state of present the statement was ways whether suffi- instance, squarely self- For a declarant’s penal inter- ciently against the declarant’s I “yes, killed inculpatory objectively the Rule defines that est” as confession— likely under Rule X”—will be admissible added). that (emphasis Id. And phrase. 804(b)(3) against accomplices who are on the contextual word- depends being co-conspirator tried under a liabil- on ing the statement itself but also Likewise, by showing that ity theory. which it was made. circumstances under something, a self- the declarant knew 603-04, 2431; accord See id. inculpatory statement can some situa- (“Viewed Udeozor, 515 at 267 in con- F.3d help jury infer that his confed- tions text, statements, many even those do seen erates knew it as well. And when an of a crime or not amount to admission evidence, accomplice’s with other crime, constitute state- an element of inculpate can self-inculpatory statement ‘against penal purposes interest’ for ments directly. the defendant 804(b)(3).”). of Rule (citation 603, 114 omit- Id. at S.Ct. 2431 cogently recognized Justice Holmes ted). The Court further commented “no nearly century past other state- that are on their face statements “[e]ven against ment so much interest as may actually be the declar- neutral Donnelly confession of murder.” v. Unit- “A obvi- ant’s interest.”16 Id. statement States, 243, 278, (in ed the sense ously self-inculpatory can be J., (Holmes, dissent- 57 L.Ed. 820 tendency subject having so much of a to today as it ing). surely This is as true liability one to criminal that a reasonable time, regardless of believing in Justice Holmes’ person would not make without category advisory person Fed.R.Evid. 804 committee's notes. other be excluded from against interest:” declarations example facially yet 16. An of a neutral admis- against Whether a statement is in fact inter- against penal interest that the sible statement must be determined from the circum- est " employed I 'Sam and went to Thus, of each case. a statement stances ” Williamson, Joe’s house.’ admitting guilt implicating another explained The Court that this 114 S.Ct. 2431. custody, may person, made while in well be statement, per- clearly implicates third which by curry motivated a desire to favor with sons, "might against inter- be the declarant's qualify and hence fail to as the authorities hand, if a reasonable in the declarant's est against other interest.... On the being realize that linked to Joe shoes would spoken words under different circum- same stances, implicate the declarant in Joe and Sam would e.g., acquaintance, would to an conspiracy.” Id. difficulty qualifying. and Sam’s have no impli- knowingly rendering whether such statement is offered to nontestimonial evi cate or exonerate the accused. See Scott dence bearing upon aspects all of the mur (10th Mullin, 303 F.3d 1231 n. 5 act, intent, agreement, motive, and der — Cir.2002). may safely We surmise coverup. As we recently observed in immemorial, only from time on the rarest Cook, “the circumstances surrounding occasion, ever, has one of sound mind— their conversation nothing were akin to particu- even one of sound mind who is not police Cook, interrogation.” 599 F.3d at larly falsely confessed a murder honest— Cases, like those on which dis apparent acquaintance to an or friend. relied, trict court holding that statements question any parts The whether of Cook’s impheating accomplices and made in the statement within his extended conversa- context of such interrogation are unrelia tion with Cl are admissible into evidence simply ble have no application here. at Defendant trial sufficiently Smalls’ cases, those “[h]aving been caught for a interest, penal Cook’s notwith- offense, criminal the suspects were simply standing parts the fact that such also im- trying to shift the primary responsibility to murder, plicate Defendant Smalls in a ad- others.” Patayan United States v. Sori mits of one answer. ano, (9th Cir.2004) (cit 361 F.3d By point, the reader is well familiar Lee, Williamson). ing Lilly, surrounding with the circumstances Cook’s statement, and we need not restate them Next we turn from the circumstances again emphasize point here to once surrounding making of Cook’s state- certainly seeking Cook most was not ment to the statement itself. Rather than curry favor with authorities in recount- carefully analyzing Cook’s statement in ac- ing specifics of Gantz’s murder to Cl 804(b)(3) cordance with Rule and William- seeking to shift or spread blame to his separate son to Cook’s admissible from his alleged co-conspirators engender so as to remarks, inadmissible court, the district more favorable treatment from authorities. without ever discussing any particular Infrastructure, See United States v. U.S. statement, parts of his simply concluded (11th Inc., Cir.2009) based on its aforesaid erroneous view of (recognizing co-conspirator’s that a state- the law that “the context of Mr. Cook’s ment made to a “any confidant obviated renders it inadmissible under concern that attempt- [the declarant] was 804(b)(3).” Federal Rule of Evidence ing curry government favor with the I, Aplt’s App. vol. at 92-93. The district individual”). shifting blame to another As court, without explanation, simply opined the district findings regarding court’s “attempted points at various nature of the encounter between Cook and his exculpate himself, I, suggest, Aplt’s App. Cl vol. downplay intentional, the death as not responded Cook questions CFs as to shift much of the blame for the death of though he believed the two engaged were Mr. Gantz to Aplt’s his co-defendants.” in casual nothing more. conversation— I, App. vol. at 93. The court’s conclu- standpoint, From Cook’s this was indeed sion—in effect a part decision that no of case, difference, and that makes all the sufficiently Cook’s statement was against providing a guaranty” “circumstantial of penal his interest such “that a statements, arrest, reasonable reliability not found otherwise, person in declarant’s position custodial or would not knowingly made to law enforcement have made the spoke believing officials. Cook statement unless Cl, freely openly all the while un- it to be true” —cannot withstand careful plotted ... So the Mexican dude [Cl]: even the most deferential scrutiny under everything. standard of review.17 (UI [unintelligible], voices over- COOK: our review Cook’s surprisingly, Not lap) set forth previously extended statement it plotted? Or was even [Cl]: instances where Cook herein reveals some himself, at arguably exculpate seeks to Really, it plot, COOK: wasn’t even no that his comments to the extent least snitched, nigger like this homie. It’s See might mitigate punishment. serve to him, Everybody you naw. around instance, For while supra at 769-72. what, what, ... wussy, he was what so confessing to the murder and de- plainly you planned how we’d ... know occurred, Cook scribing precisely how Yeah. [Cl]: “ring Melgar-Diaz stated that you you ... know how me and COOK: (which any upon event bears leader” (UI) (UI) ... me and “D” pushin’ later, conspiracy). A breath he crime of this, get let’s get talkin’ about let’s “[rjeally, plot, it wasn’t even no ho- said nigger. on bag thereafter, Shortly suggested mie.” Yeah. [Cl]: just playin’ that he and his cohorts “was ... bag COOK: So we had so we was really” they placed bag when over I’m ya’ll like what wanna do? all hell him down. So that Gantz head held I, fuck, everybody like come on. We may the reader view Cook’s comments just playin’ really right ... we context, proper repeat we the relevant one, two, three, go. was like Put it sequence here: and, over his head homie and come nobody you But sure ain’t can’t [Cl]: a ... out to be and then it come out to say nothin’? murder, a mother fuckin’ homie. be do, involved, Naw! If we all COOK: ya’ll put bag So over his head? [Cl]: good thing. homie. That’s the It (laughing) COOK: just ain’t like one of us bag put Who over head? [Cl]: No, sayin’ happened? I’m what [Cl]: The Mexican dude. COOK: killed the mother fucker. COOK: We you And what’d do? [Cl]: No, sayin’ I’m well how did this [Cl]: COOK: Held his hands. down, just go my whole shit man? And what did the black dude do? [Cl]: Oh, snitchin’,

COOK: cause he was ho- mie. COOK: He held his feet. ring

[Cl]: Who was the leader? I, 52-54; II, App. vol. at 267- Aplt’s vol. COOK: The Mexican dude. error, question

17. Because our careful review of Cook’s state- or a mixed reviewable for ment, entirety, considered its and the cir- abuse of discretion. See United States v. Wes- made, (11th Cir.2008) (stat- try, cumstances under which it was admits conclusion, namely portions ing a determination whether a one state- sufficiently against penal of his statement were his ment is a declarant’s interest is law, penal “purely” question under Rule but that consider- interest and thus admissible 804(b)(3), reliability a based we need not now decide whether a ation of statement’s on surrounding "requires that a is or is circumstances a re- determination not sufficiently against penal findings fact and a review of the a declarant's inter- view of legal presents application standard to question est of law reviewable de trial court's novo, facts”). question for clear of fact reviewable initially indicating Melgar-Diaz as also illustrated his comment: “If I Though leader,” “ring excerpt my they reveals worried can nigger, bring was the was on, from that por- they backed off promptly gonna Cook shit but ain’t have ” Moreover, throughout I, 64; the relevant trayal. Aplt’s App. nothin’.... vol. at vol. statement, II, of his Cook rather portions at suggest, 279. Cook went so far as to repeatedly blame seeking than to shift outright acknowledge, not that Gantz’s all three men were opined that because death was the result of a crime: “[Every- murder, none of them involved Gantz’s the, on, on, the, thing on on ah ... evi- App. vol. say anything. Aplt’s could See thing, dence the crime no good. scene (“[W]e I, 52; II, involved, at vol. at 267 all sayin’? You what I’m ... see Nothin’. It ain’t good thing. homie. That’s the like that, They Nothin’. can’t do none of ho- us.”); I, 55; II, just at vol. at one of vol. mie. Ain’t no prints, ain’t no none of that (“I one, only could see if I was the or 66; dog.” I, II, Aplt’s App. vol. at vol. one, he, all he was the but we had at 281. it,

something say to do with so we all can’t Apart from these three arguably nothin’.”); I, 65; II, vol. vol. at 280 exculpatory, perhaps non-self-inculpato (Can’t nobody just get up say there and comments, ry, the preceding excerpt itself it.”). no, Similarly, spoke of he did plainly speaks conspiracy to a to commit planned get bag “how we on [to] murder, murder, act and a motive for nigger” nigger because “this murder.18 While Cook stated he did not snitched,” directly after he commented on personally bag hold the over Gantz’s head “plot.” lack of a As for com- Cook’s (those legs or hold down Gantz’s Cook said just playin’ ment that the three men “was respective were the tasks of Melgar-Diaz really,” any suggestion that Gantz’s mur- Smalls), Cook, and Defendant as an al accident, der was an or as the district leged co-conspirator, certainly legally was intentional,” gross court said “not is a mis- Watson, responsible for those acts. See reading of Cook’s statement in context. 587; Jordan, F.3d 509 F.3d at 202. reported The events as Cook them to Cl “Blaming one’s self and someone else does any repeatedly belie such notion. Cook necessarily reduce a statement’s that, trust boasted due to lack of available ____”Watson, 588; evidence, worthiness 525 F.3d at he was not concerned about a Dorsey, see also Earnest v. 87 F.3d possible prosecution. criminal His remark Cir.1996) (10th (upholding they They can do? ... can’t admis- “[b]ut what accomplice’s implicat- That sion of an right do nothin’. clean one clean, you ing there. That’s what call ho- himself and two other men a mur- der). If, mie .... if it is evi—we all These precisely Clean. comments as to how be, undoubtedly the room. What evidence could it Gantz’s murder occurred are and, my nigger?”, hardly that of a man in- penal coupled Cook’s interest in an Aplt’s App. making, volved accidental death. the circumstances of their 66; II, Rather, I, trustworthy required by vol. vol. at 281. to the extent Rule 804(b)(3). remark illustrates Cook’s defiant attitude And that them makes suffi- Stores, Inc., questions Super Cl's and comments do not con- ner v. Valu (10th Cir.1993) stitute within Fed.R.Evid. 801's defi- (recognizing that state- prove nition because are not offered to ments offered for their effect on the listener asserted, the truth of the matter but rather Thus, hearsay). are not Fed.R.Evid. 802 does offered to establish their effect on Cook and not bar their admission. provide context for his statement. See Faulk- interest, toilet, ciently against flushing bag ren- down the penal Cook’s Cook laughingly you remarked “and to tell under Rule dering them admissible truth, I ain’t 804(b)(3). (laughs).” Aplt’s did nothin’ I, 61; II, App. at That vol. vol. at 276. course, Williamson tells us that nei Of amusing would find comment is Cook his self-exculpatory non-self-inculpa nor ther scarcely surprising given just moments be- are admissible tory portions of fore, “story” told Cl his 804(b)(3) penal in against under Rule played that he no in murder part Gantz’s 804(b)(3) Rather, “eover[s] terest. Rule nothing and knew about because he was only those declarations or remarks within asleep: happened. “I don’t know what individually the confession that are self- it, my story I’m all That’s stickin’ to Williamson, inculpatory.” end, way homie. I ain’t even Thus, 114 S.Ct. 2431. Cook’s remarks gonna up make no no more.” stories suggesting Meglar-Diaz “ring was the I, 56; II, Aplt’s App. vol. vol. at 271. leader,” plot,” “there even wasn’t no and Finally, response in to comment that Cl’s just playin’ really” may “we need to only “there’s a tradeoff” because Cook be extracted from the self-inculpatory on,” “helped holdin’ Cook remarked: parts foregoing excerpt before those justa accessory anyway.” ‘Yeah. So I’m parts may be deemed admissible. See I, 65; II, Aplt’s App. vol. vol. at 280. Williamson, 600-01, 114 S.Ct. While Cook’s remark is an inaccurate (explaining proximity” the “mere § statement of the law because 18 U.S.C. self-exculpatory self-inculpatory state largely has the common abolished law dis- ments does not render the former more principals tinction between and accesso- Nonetheless, trustworthy). we can reach ries, layman’s perspec- his remark from a but one conclusion this case: Much of simply tive is unremarkable. It reinforces foregoing sufficiently excerpt against prior that Melgar-Diaz Cook’s penal Cook’s interest such no reason co-conspirator bag was the who held say able things would those without over Gantz’s head while Cook held his believing them to true. be Under the hands and Defendant held Smalls his feet. presented, per circumstances a reasonable absolutely Cook’s remark nothing does falsely son participat would admit to negate or lessen his aforementioned role ing Gantz’s murder aware of the possi the self-described murder. bility, slight, however that such admission remand, On court district should subject could him prosecution to criminal proceed opinion consistent See United States v. punishment. parts first determine what ex- Cook’s (11th Westry, Cir. sufficiently tended confession 2008).19 penal his interest and therefore admissible Neither do arguably 804(b)(3). two Cook’s other under Fed.R.Evid. The court exculpatory comments render his state- subject should then those selected state- ment entirety. inadmissible its Immedi- only ments not to Rules 401 and 402’s ately prior describing relevancy in some detail requirements, but also to Rule Sprint/United test. See sought up how he to cover the murder balancing 403’s excerpt penal 19. We use the extended set forth in interest and thus under Rule admissible part example. II.C. Instead, as an We do not 804(b)(3). question we leave that pass upon question intend to of whether the district court to decide in the first in- statement, parts other of Cook’s considered in stance. context, may sufficiently against also be his

787 Mendelsohn, 379, I would thus hold that admitting v. 552 U.S. a custo- Mgmt. Co. 1140, co-defendant, 1 128 L.Ed.2d dial confession that blames a S.Ct. 170 prejudice relevance and (“[Qjuestions of where co-defendant will be unable to declarant, the District Court to determine are for confront the violates both the instance.”). determining the first Confrontation Clause and the Federal danger prejudice unfair whether Rules of Evidence’s rule. substantially outweighs a relevant state- First, the Confrontation Clause forbids value, the court probative ment’s district testimony. the use of this If Mr. Cook and remain mindful of our admonition should together, Mr. Smalls were tried the Con- Tan, States v. United frontation using Clause would bar the con- Cir.2001): (10th against fession Mr. Smalls. Bruton v. in the context prejudice Unfair Rule 403 States, 123, 137, 391 U.S. 88 S.Ct. tendency suggest means an undue (1968) (cited 1620, 20 L.Ed.2d basis, improper decision on an common- approval, Washington, Crawford necessarily, an ly, though not emotional 36, 57, 158 L.Ed.2d The district court has one. considerable (2004)). violation, To avoid such a performing the Rule discretion district court severed their trials. The However, balancing test. exclusion government claims that severance solved 403 that is other- evidence under Rule any problems. Confrontation Clause But wise admissible under the other rules is this is absurd. Severance does not cure extraordinary remedy and should be inability Mr. Smalls’s to cross-examine Mr. sparingly. used Cook. omitted). (quotations and citations and REMANDED.20 Testimony

REVERSED need not result from formal Rather, interrogation. confessions elicited KELLY, JR., Judge, PAUL Circuit by governmental agents sufficiently are dissenting. objective- formal “when the circumstances right ly An accused’s to confront and ongoing cross- indicate that there is no ... ought examine the witnesses him emergency, primary purpose and that the by subterfuge interrogation prove be subverted and trick- is to establish or ery. up by past Mr. Cook’s statement was set potentially events relevant to later government designed and criminal prosecution.” Washing- constitute Davis v. ton, testimony. person, A reasonable aware of situation, (2006). Here,

the true would know that. L.Ed.2d 224 govern- analysis precedent. long 20. The dissent's of this case misstates The law has condoned response. the law and warrants little Suffice "trickery in numerous instances the use of say judges that as inferior federal court we subterfuge” by confidential informants liberty are not at to decide cases on the basis agents and undercover to obtain confessions Rather, of what we think the law should be. opinion and other evidence of crime. As our we are bound to decide cases on the basis of explains, admissibility well where the of a suggestion what the law is. The dissent's nontestimonial under Fed.R.Evid. “misinterpret!] we the Confrontation issue, 804(b)(3) only question is at is the Clause,” government "enable!] to use likely veracity of such statement "that a rea- lies ruses skirt Constitution” and position sonable in the declarant’s through trickery "evade and sub- the!] law[] would not have made the statement unless terfuge” cutting words to a court bound believing it to be true.” Fed.R.Evid. uphold a constitutional oath to the law 804(b)(3) added). (emphasis plain Supreme with the consistent dictates of surreptitiously Mr. Cook to allowing ment induced accused without the accused testify against -they so that cross-examine the reason himself and others declarant — and violate ac government may wrongly rights them for a the prosecute the Davis, 826, full cused. 547 at 126 Any murder. declarant with U.S. past Cf. (disapproving police S. Ct. 2266 evasions knowledge reasonably of the facts would Clause). of the Confrontation and government could would assume prosecu- and investigation his words in use majority The also likens this case tion. precedents concerning entirely different States, a Bourjaily situations. v. United Founders Confrontation The enacted the conspiracy pre-dating Crawford, case con exactly to address this situation. Clause admission cerned the of a statement unwit 4, Crawford, 541 at n. 124 U.S. 53 & S.Ct. an tingly made to informant during and They despised practice law civil 171, conspiracy. furtherance of a 483 U.S. government parte in which the ex elicits 2775, (1987); 107 97 S.Ct. L.Ed.2d 144 see accomplices, confessions from incarcerated 801(d)(2)(E). Fed.R.Evid. that Admitting accused, them in court against uses an “did not statement violate the Confronta not allow does the accused to confront the tion for Clause reason that it was Crawford, in court. 541 declarants U.S. at (as incriminating an in fur 49-50, 43, 124 S.Ct. “Involvement the conspiracy probably therance of would government production officers in the be) never testimonial.” Giles testimony an Califor eye pres- with toward trial nia, -U.S.-, 2678, n. 128 S.Ct. 2691 unique potential prosecutorial ents for (2008); 171 L.Ed.2d 488 see also United fact again abuse—a born out time and (2d Saget, States v. 229 through history with which the Framers Cir.2004) (admitting a co-conspirator’s keenly were familiar.” 541 Crawford, U.S. had agents non-custodial 56 n. 124 These S.Ct. 1354. constitu- elicited). Likewise, Evans, in Dutton v. tional are present concerns whether or not cellmate, by passive remarks heard who declarant government knows that the government agent not a did and who tricking him into admitting his involve- information, any not elicit testi were not ment and at the manufacturing same time 74, 87-89, mony. U.S. 27 “testimony” against To another. accurate- (1970). L.Ed.2d 213 ly objectively situation, judge this therefore, a court must consider all the Radically different and much seri- more including govern- that the (1) ous, in this case Mr. Cook’s listener circumstances— tricked tampered ment the declarant and (2) informant; was an authorized court no his expectations. with reasonable by preponderance has found of the evi- Mr. dence that Cook made the statement today, however, The court misinterprets during or furtherance of a conspiracy; the Confrontation and renders it Clause (3) interrogation jail, took place in to such By limiting blind tactics. the ob- (4) crime; after the commission of the jective inquiry solely to information known actively informant solicited detailed infor- the declarant when he the court spoke, in investigation mation for use prose- government enables to use lies and cution; and this was not an offhand ruses to skirt the Constitution. To the a friendly remark nor chat. agree today’s extent other circuits with holding government agents may Second, the correctly ob- district court held —that tricking tain testimonial evidence de- Federal ex- Rules of Evidence clarant, against and then introduce confession R. hearsay. clude this Fed 530, 545, holding disagrees, 802. The court S.Ct. L.Ed.2d Evid. (1986) (cited approval, Crawford, ex the “statement interest” 804(b)(3). 1354). 58-59, applies. Fed R. Evid. 541 U.S. S.Ct. Courts ception exception, accomplices’ blame-spreading rule exclude con Under inherently because un purely self-inculpatory not exclude fessions does States, 133-34, trustworthy. Lilly, v. United 527 U.S. statements. Williamson 599-600, 603, 2431, 137-38, give S.Ct. 1887. What would (1994). Self-exculpatory reliability L.Ed.2d 476 such confessions —that far exception. against penal do not fall under this were so one’s interest statements Op. They person at 28. are too unreliable that no reasonable would make See Ct. admitted, present even if mixed with ele them —is not when a declarant to be furthers, because or at least thinks he is self-inculpation, “[o]ne ments of further ways ing, is to mix own minimizing the most effective lie his interests his truth, especially truth that participation spreading guilt. Id. at falsehood 131-32, 119 particularly persuasive seems because of S.Ct. 1887. nature.” Id. at 599— self-inculpatory

its Mr. right Smalls has the to confront Mr. 600, especially 2431. “This is S.Ct. government uses Mr. Cook’s implicates when the statement some true confession him. The Confronta- Id. at one else.” S.Ct. tion Clause and the Federal Rules of Evi- confession, inculpating while Mr. Cook’s hearsay dence’s ban on evidence exist to ways, purely was not in- himself some prevent upon convictions based untrust- He did not take full and sole culpatory. worthy and unchallengeable evidence. Rather, for the crime. he responsibility today government The court allows the equivocat- He participation. minimized his through trickery evade these laws like, gave ed and excuses for himself “We subterfuge. doing, so this court en- just primary playin’.” Mr. Cook cast government ables the to convict Mr. responsibility Melgar-Diaz on Mr. and Mr. Smalls on unconstitutional basis. Smalls, that he himself was and claimed I thus would exclude Mr. Cook’s state- “justa accessory.” shifting Statements ments and affirm the district court. truly self-inculpa- are not blame others tory. Id. at 114 S.Ct. 2431. Mr. confession does not fall under the

Cook’s exception, in no small

“against interest”

part [his] because “reasonable

position might implicating even think that practical

someone else would decrease his liability.” exposure to criminal Id. LaAsmar, Ronald and Sandra LaASMAR 114 S.Ct. 2431. intiffs-Appellees-Cross-A Pla surviving cases Craw Supreme Court ppellants, No buttress this conclusion. ford v. firmly accomplice roots confes exception inculpating Lilly Virgi another. sions PHELPS DODGE CORPORATION nia, 116, 134, LIFE, DEATH 527 U.S. S.Ct. ACCIDENTAL & DIS (cit (plurality opinion) L.Ed.2d 117 MEMBERMENT AND DEPENDENT Crawford, PLAN, approval, ed with LIFE a benefit INSURANCE Illinois, 1354); provided by Phelps Dodge Corpo- Lee v. plan

Case Details

Case Name: United States v. Smalls

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 3, 2010

Citation: 605 F.3d 765

Docket Number: 09-2126

Court Abbreviation: 10th Cir.