Sixth Circuit
Case: United States v. Wandahsega, No. 18-1219, 2019 WL 2183198, at *7 (6th Cir. May 21, 2019)
(see prior post for a discussion of this case)
Tenth Circuit
Case: United States v. Yurek, No. 18-1134, 2019 WL 2181159, at *8 (10th Cir. May 21, 2019
Type of Case: Criminal
Charges/Counts: (1) Tax evasion; and (2) bankruptcy fraud
Rule(s) of Evidence Cited
- FRE 801(d)(2)(E); Sixth Amendment Confrontation Clause
The Tenth Circuit held that the defendant’s Confrontation Clause rights were not violated by a trial court’s admission of her co-defendant/husband’s statement under Federal Rule of Evidence 801(2)(2)(E).
By way of background, the government charged a husband and wife with tax evasion and bankruptcy fraud. Before trial, the wife asked the district court to sever the trial. She argued, in part, that the government planned to admit an out-of-court statement of her husband at trial and that doing so would violate her Confrontation Clause rights if her husband did not testify. At trial, the government offered the out-of-court statement pursuant to Rule 801(d)(2)(E), which excepts from the rule against hearsay a statement “made by the party’s coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). The husband did not testify.
The Tenth Circuit held that the admission of the husband’s out-of-court statement did not violate the wife’s Confrontation Clause rights. The Court ruled that the Confrontation Clause only applies where the out-of-court statement is testimonial and the husband’s statement was not. The Court wrote:
“Mrs. Yurek contends that the refusal to sever the trial violated her right to confrontation by allowing the government to use the husband’s out-of-court statement against her. But the Sixth Amendment applies only when the out-of-court statement is testimonial. See United States v. Clark, 717 F.3d 790, 815 (10th Cir. 2013) (observing that the Sixth Amendment’s Confrontation Clause applies only if a statement is ‘testimonial’). Statements in furtherance of a conspiracy are nontestimonial, so they are admissible even when the defendants cannot confront the declarants. United States v. Patterson, 713 F.3d 1237, 1247 (10th Cir. 2013); see Crawford v. Washington, 541 U.S. 36, 56, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (observing that statements in furtherance of a conspiracy are not testimonial).”
You can read the full opinion here:
https://cases.justia.com/federal/appellate-courts/ca10/18-1134/18-1134-2019-05-21.pdf?ts=1558454437
