2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-2005

USA v. Hendricks

Precedential or Non-Precedential: Precedential

Docket No. 04-2465

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 PRECEDENTIAL

UNITED STATE COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No: 04-2465

______

UNITED STATES OF AMERICA,

 Appellant

 v.

CRAIG M. HENDRICKS; RUSSELL ROBINSON

ELROY DOWE; DANIEL FLEMING;

RANNEY LARONDE; ANDY ANTOINE;

RUDOLPH CLARK; RAFAEL CINTRON;

KALISHA MARTIN; JACQUELYN CARR

 

On Appeal from the District Court

for the Virgin Islands

(D.C. No. 04-cr-00005 )

District Judge: Honorable Raymond L. Finch

 

Argued December 16, 2004

Before: SLOVITER, FUENTES, and GREENBERG, Circuit

Judges.

(Filed: January 14, 2005)

 

David M. Nissman

U.S. Attorney

Anthony J. Jenkins

Acting U.S. Attorney
2

Patricia M. Sulzbach (Argued)

Assistant U.S. Attorney

District of the Virgin Islands

Cynthia Stone

Senior Trial Attorney

Criminal Division

U.S. Department of Justice

Washington, DC 20530

Attorneys for Appellant

Eric S. Chancellor

Christiansted, St. Croix, USVI 00820

Attorney for Appellee Elroy Dowe

Andrew L. Capdeville (Argued)

St. Thomas, USVI 00804

Attorneys for Appellee Craig M. Hendricks 

Leonard B. Francis, Jr.

Charlotte Amalie, St. Thomas, USVI 00801

Attorney for Appellee Daniel Fleming

Kevin W. Weatherbee

Charlotte Amalie, St. Thomas, USVI 00802

Attorney for Appellee Ranney Laronde

Clive Rivers

Charlotte Amalie, St. Thomas, USVI 00802

Attorney for Appellee Andy Antoine
1

 The District Court has continuing jurisdiction over this

case under 18 U.S.C. § 3231 and 48 U.S.C. § 1612; this court has

jurisdiction over this interlocutory appeal pursuant to 18 U.S.C. §

3731 and 28 U.S.C. § 1294(3).

2

 The District Court also issued a pretrial ruling suppressing

a post-arrest statement of Appellee Craig Hendricks because it

found that “Hendricks never waived his right to have counsel

present during the [custodial] interview by law enforcement

officials.” J.A. at 40. The United States initially filed a notice

3

Treston E. Moore

Charlotte Amalie, St. Thomas, USVI 00804

Attorney for Appellee Rafael Cintron

Jomo Meade

Frederiksted, St. Croix, USVI 00840

Attorney for Appellee Jacqueline Carr

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In this interlocutory appeal filed by the United States we

must interpret for the first time for this court the meaning of

“testimonial evidence” as used in the Supreme Court’s recent

decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354 (2004), and determine its application to legally obtained

wiretap evidence and evidence of conversations between some

of the Defendants and a murdered confidential informant

 (“CI”). The District Court for the Virgin Islands,1 in ruling on

the Government’s motion in limine, held that because of

Crawford such evidence could not be introduced at trial. The

United States appeals. For the reasons explained below, we will

reverse the decision of the District Court, and will remand in

order to afford the District Court the opportunity to analyze the

disputed evidence under the proper standards.2
appealing this decision, but subsequently dismissed that facet of its

appeal.

3

 Although the case was originally brought in the District

Court for the Virgin Islands, Division of St. Thomas and St. John,

the District Court granted the Government’s motion for a change

of vicinage and transferred the matter to the District Court for the

Virgin Islands, Division of St. Croix. J.A. at 94; see generally

Gov’t of V.I. v. Scatliffe, 580 F. Supp. 1482, 1485 (D. V.I. 1984).

4

 CI Rivera was murdered shortly after the indictment was

returned. 

4

I.

On April 11, 2003, a federal grand jury sitting in the

United States Virgin Islands returned a multi-count indictment

charging Defendants/Appellees Andy Antoine, Jacquelyn Carr,

Rafael Cintron, Rudolph Clarke, Elroy Dowe, Daniel Fleming,

Craig M. Hendricks, Ranney Laronde, and Russell Robinson

with one or more counts of conspiracy, narcotics possession and

distribution, and money laundering.3 According to the

indictment, Hendricks, who is the owner of a facially-legitimate

marine services business, was the leader of a large-scale

narcotics-trafficking organization, which prior to the arrests of

the Defendants, imported and distributed cocaine and marijuana

throughout the United States Virgin Islands and elsewhere.

On January 12, 2004, the United States filed a motion in

limine seeking pretrial rulings on the admissibility of, inter alia: 

(1) electronic surveillance tapes obtained pursuant to a court

authorized wiretap issued under 18 U.S.C. § 2510 et seq.

(hereinafter the “Title III recordings”); and (2) recordings of

conversations between confidential informant Hector Rivera

(“CI Rivera”) and various of the Defendants.4 The United States

maintained that the recordings and conversations at issue

qualified either as admissions of a party opponent, see Fed. R.

Evid. 801(d)(2)(A), coconspirator statements, see Fed. R. Evid.

801(d)(2)(E), statements against interest, see Fed. R. Evid.

804(b)(3), or as statements covered by the residual hearsay
5

 The United States had maintained that the Defendants

were responsible for CI Rivera’s death and thus, at least as to the

conversations involving CI Rivera, had forfeited by wrongdoing

any protection offered by the rule against hearsay, see Fed. R. Evid.

804(b)(6), or the Sixth Amendment, see Reynolds v. United States,

98 U.S. 145, 158-59 (1878). The District Court rejected this

argument, finding that the United States was “unable to establish

a conclusive link between [the Defendants] and the murder of

Hector Rivera.” J.A. at 39. That ruling is not before this court.

5

exception, see Fed. R. Evid. 807, and thus were admissible.

In a Memorandum Opinion dated April 27, 2004, the

District Court ruled that Crawford, in which the Supreme Court

interpreted the Confrontation Clause of the Sixth Amendment of

the United States Constitution, “has superceded the Federal

Rules of Evidence in barring all out-of-court statements made by

an unavailable witness whom a defendant has not had the chance

to cross-examine, with exceptions only for dying declarations

and forfeiture for wrongdoing.” J.A. at 38.5 The District Court

noted that the Defendants never had an opportunity to crossexamine CI Rivera and that due to CI Rivera’s death, he would

not be available to testify at trial. The District Court therefore

ruled that the United States could not introduce the

conversations involving CI Rivera at trial.

Similarly, regarding the Title III recordings, the District

Court noted that the United States had “not shown that any

statement recorded on the wiretap was made by a person who is

no longer available and whom Defendants have had an

opportunity to cross-examine.” J.A. at 39-40. Thus, it ruled that

the United States could not introduce at trial any statements

intercepted in the Title III wiretaps except those “statements

made by a witness who testifies at trial.” J.A. at 40.

The United States thereafter filed a Motion for

Reconsideration. In its motion, the Government noted that the

rule announced in Crawford is only applicable to so-called

“testimonial” hearsay statements. J.A. at 48 (citing Crawford,
6

541 U.S. at __, 124 S. Ct. at 1374). It follows, the Government

argued, that “‘nontestimonial hearsay statements may still be

admitted as evidence against an accused . . . if [they] satisf[y]

both prongs of the [Ohio v.] Roberts[, 448 U.S. 56 (1980),]

test.’” J.A. at 47 (quoting State v. Rivera, 844 A.2d 191, 201

(Conn. 2004)). The United States urged that none of the

evidence at issue fell within the definition of testimonial

hearsay; it contended that therefore the evidence was not subject

to the rule of Crawford.

By Order dated May 11, 2004, the District Court denied

the United States’ Motion for Reconsideration. Although it

agreed with the Government that the Crawford holding is

inapplicable to nontestimonial statements, it found that the

evidence at issue qualified as testimonial statements and thus fell

within the rule of Crawford. The United States thereafter lodged

this timely interlocutory appeal. See generally 18 U.S.C. § 3731

(“An appeal by the United States shall lie to a court of appeals

from a decision or order of a district court suppressing or

excluding evidence . . . not made after the defendant has been

put in jeopardy and before the verdict or finding on an

indictment . . . .”).

II.

The District Court’s decision to exclude the evidence at

issue turned on its application of the Sixth Amendment and its

interpretation of the Supreme Court’s decision in Crawford. 

This interlocutory appeal thus presents a question of law which

we review de novo. United States v. Trala, 386 F.3d 536, 543

(3d Cir. 2004); United States v. Barbosa, 271 F.3d 438, 452 (3d

Cir. 2001).

As noted by the United States Court of Appeals for the

First Circuit, the recent decision in Crawford has “changed the

legal landscape for determining whether the admission of . . .

hearsay statements violates the accused’s right[s]” under the

Confrontation Clause. Horton v. Allen, 370 F.3d 75, 83 (1st Cir.

2004); see also United States v. McClain, 377 F.3d 219, 221 (2d

Cir. 2004) (“Crawford redefines the Court’s Sixth Amendment

jurisprudence . . . .”). A somewhat detailed recounting of that
7

case, therefore, is useful for resolution of the case at bar.

The State of Washington charged Michael D. Crawford

with assault and attempted murder for stabbing Kenneth Lee, a

man Crawford believed had tried to rape his wife. During the

police investigation, both Crawford and his wife gave formal

statements to law enforcement officials. In her statement, Mrs.

Crawford generally corroborated her husband’s version of the

events leading up to the fight; however, her account of the fight

itself was arguably different from that of her husband with

respect to whether Lee had drawn a weapon before Crawford

struck him. Crawford, 541 U.S. at __, 124 S. Ct. at 1357.

At trial, Crawford claimed self-defense. Under a

Washington statute regarding marital privilege, Mrs. Crawford

was “unavailable” to testify. 541 U.S. at __, 124 S. Ct. at 1357-

58. The prosecution sought to have Mrs. Crawford’s statements

to the police admitted through a codified hearsay exception. In

response, Crawford argued that, notwithstanding the hearsay

exception, the admission of his wife’s statements would violate

the Confrontation Clause. The trial court, relying on Ohio v.

Roberts, 448 U.S. 56 (1980), found Mrs. Crawford’s statements

“trustworthy” and thus admitted them. Crawford, 541 U.S. at 

__, 124 S. Ct. at 1358. 

In Roberts, the Supreme Court had held that the

Confrontation Clause does not preclude the admission of an

unavailable witness’s hearsay statement if it bears “adequate

indicia of reliability.” Roberts, 448 U.S. at 66 (internal

quotations and citations omitted). Under Roberts, a hearsay

statement contains “adequate indicia of reliability” if it falls

within a “firmly rooted hearsay exception” or if it bears

“particularized guarantees of trustworthiness.” Id. Applying

this test, the trial court found Mrs. Crawford’s statements

trustworthy and therefore admissible. Although the Washington

Court of Appeals reversed that decision, citing reasons why Mrs.

Crawford’s statements were not trustworthy, the Washington

Supreme Court agreed with the trial court that Mrs. Crawford’s

statements showed sufficient evidence of trustworthiness to be

admitted. 541 U.S. at __, 124 S. Ct. at 1358. The United States
8

Supreme Court granted Crawford’s petition for certiorari. 

Justice Scalia, writing for the Court, began by

highlighting the differences between the common law practice of

receiving evidence through live testimony in court subject to

adversarial testing with the civil law practice of receiving

evidence through ex parte private examinations of witnesses by

government officials. Although the Court noted that common

law systems had occasionally adopted and utilized elements of

the civil law practice (referring at some length to the notorious

English trial of Sir Walter Raleigh), it recognized that, as

illustrated by various state constitutional provisions circa 1776,

the introduction of government-sponsored ex parte examinations

against an accused has long been considered an anathema in

common law systems in general and in the American system in

particular. 541 U.S. at __, 124 S. Ct. at 1359-63.

After surveying various founding-era sources, the Court

stated that “the principal evil at which the Confrontation Clause

was directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence against

the accused.” 541 U.S. at __, 124 S. Ct. at 1363; see also United

States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004) (discussing

Crawford, noting: “The central function of this right [of

confrontation] is to protect individuals from the use of ex parte

statements as evidence against them in a criminal trial”). With

the principal focus of the Confrontation Clause thus established,

the Court proceeded to uncouple the rationale undergirding the

prohibition against hearsay from the impetus behind the

Confrontation Clause, suggesting “that not all hearsay implicates

the Sixth Amendment’s core concerns.” 541 U.S. at __, 124 S.

Ct. at 1364; see also Thomas J. Reed, Crawford v. Washington

& the Irretrievable Breakdown of a Union: Separating the

Confrontation Clause from the Hearsay Rule, 56 S.C. L. Rev.

185 (2004). It continued:

An off-hand, overheard remark might be unreliable

evidence and thus a good candidate for exclusion

under hearsay rules, but it bears little resemblance

to the civil-law abuses the Confrontation Clause
9

targeted. On the other hand, ex parte examinations

might sometimes be admissible under modern

hearsay rules, but the Framers certainly would not

have condoned them.

Crawford, 541 U.S. at __, 124 S. Ct. at 1364.

The Crawford Court noted that the text of the

Confrontation Clause is supportive of this distinction. The

Clause provides: “In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against

him.” U.S. CONST. amend. VI. Thus, the Clause applies to

“‘witnesses’ against the accused--in other words, those who

‘bear testimony.’” 541 U.S. at __, 124 S. Ct. at 1364 (emphasis

added) (quoting 1 N. Webster, An American Dictionary of the

English Language (1828)). As recognized by the Crawford

Court: “‘Testimony,’ is typically ‘[a] solemn declaration or

affirmation made for the purpose of establishing or proving

some fact.’” 541 U.S. at __, 124 S. Ct. at 1364 (quoting 1 N.

Webster, An American Dictionary of the English Language

(1828)). Thus, a person “who makes a formal statement to

government officers bears testimony in a sense that a person who

makes a casual remark to an acquaintance does not.” Crawford,

541 U.S. at __, 124 S. Ct. at 1364.

After engaging in this historical and textual analysis, the

Court concluded that, even if the Confrontation Clause “is not

solely concerned with testimonial hearsay, that is its primary

object.” Crawford, 541 U.S. at __, 124 S. Ct. at 1365. The

Court further opined that, “[w]here testimonial statements are

involved, we do not think the Framers meant to leave the Sixth

Amendment’s protection to the vagaries of the rules of evidence,

much less to amorphous notions of ‘reliability.’” 541 U.S. at __,

124 S. Ct. at 1370. 

Therefore, the Court, partially abrogating Roberts, held

that “testimonial” hearsay statements may not be introduced

against a defendant unless the declarant is unavailable at trial

and the defendant had a prior opportunity to cross-examine the

declarant. 541 U.S. at __, 124 S. Ct. at 1374. Importantly, this
6

 The Court, however, did recognize two potential

exceptions to this otherwise per se rule: (1) dying declarations,

Crawford, 541 U.S. at __, 124 S. Ct. at 1367 n.6; and (2) forfeiture

by wrongdoing, id. at __, 124. S. Ct. at 1370. See also supra,

footnote 5.

7

 Some commentators have interpreted this statement as

suggesting that in the future the Court may abrogate completely the

Roberts holding and exclude nontestimonial statements entirely

from the ambit of the Confrontation Clause. See Edward J.

Imwinkelried, The Treatment of Prosecution Hearsay Under

Crawford v. Washington: Some Good News But . . . ., The

Champion, Oct. 2004, at 16, 18 (“The [Crawford] majority’s harsh

criticism of Roberts’ reliability standard makes it even more likely

that the Court will eventually relax the standard for admitting

nontestimonial hearsay.”). Such a development in Sixth

Amendment jurisprudence is beyond the province of this court. Cf.

10

outcome obtains regardless of whether the statement at issue

falls within a firmly rooted hearsay exception or has a

particularized guarantee of trustworthiness. Id.6 In sum, insofar

as “testimonial” evidence is concerned, Crawford replaced the

malleable judicial inquiry mandated by Roberts with a virtually

per se rule of exclusion. See United States v. Saget, 377 F.3d

223, 226-27 (2d Cir. 2004) (“It is clear that a court faced with an

out-of-court testimonial statement need not perform the Roberts

reliability analysis, as Crawford replaces that analysis with a

bright-line rule drawn from the historical origins of the

Confrontation Clause.”).

The lynchpin of the Crawford decision thus is its

distinction between testimonial and nontestimonial hearsay;

simply put, the rule announced in Crawford applies only to the

former category of statements. Crawford, 541 U.S. at __, 124 S.

Ct. at 1374. As the Court explained: “Where nontestimonial

hearsay is at issue, it is wholly consistent with the Framers’

design to afford . . . flexibility in the[] development of hearsay

law--as does Roberts, and as would an approach that exempted

such statements from Confrontation Clause scrutiny altogether.”

Id.7 Thus, unless a particular hearsay statement qualifies as
Agostini v. Felton, 521 U.S. 203, 237 (1997); Sierra v. Romaine,

347 F.3d 559, 575 n.27 (3d Cir. 2003).

11

“testimonial,” Crawford is inapplicable and Roberts still

controls.

 Notwithstanding the centrality of the term to its decision,

the Crawford Court expressly declined to provide a

comprehensive definition of “testimonial statements.” Crawford,

541 U.S. at __, 124 S. Ct. at 1374; id. at __, 124 S. Ct. at 1378

(Rehnquist, C.J., concurring). It did, however, reference several

“formulations of [the] core class of ‘testimonial’ statements” and

further provided some concrete examples of evidence that is

obviously testimonial. Crawford, 541 U.S. at __, 124 S. Ct. at

1364; see also United States v. Manfre, 368 F.3d 832, 838 n.1

(8th Cir. 2004) (“The Court in Crawford specifically left

ambiguous the definition of ‘testimonial’ but did not leave us

without some bench marks.”).

Crawford had suggested defining testimonial statements

as “‘ex parte in-court testimony or its functional equivalent--that

is, material such as affidavits, custodial examinations, prior

testimony that the defendant was unable to cross-examine or

similar pretrial statements that declarants would reasonably

expect to be used prosecutorially.’” 541 U.S. at __, 124 S. Ct. at

1364 (quoting Brief for Petitioner Crawford). In its opinion, the

Court adopted Crawford’s suggestion as examples of testimonial

statements to which its opinion would apply. The Court also

referred to Justice Thomas’ earlier definition of “testimonial

statements” as “‘extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits, depositions,

prior testimony, or confessions.’” 541 U.S. at __, 124 S. Ct. at

1364 (quoting White v. Illinois, 502 U.S. 346, 365 (1992)

(Thomas, J., concurring)). The third and broadest formulation,

offered to the Court by amicus curiae the National Association

of Criminal Defense Lawyers (“NACDL”), would define

testimonial statements as those “‘made under circumstances

which would lead an objective witness reasonably to believe

that the statement[s] would be available for use at a later trial.’” 
12

541 U.S. at __, 124 S. Ct. 1364 (quoting Brief of NACDL). 

Finally, the Court provided several concrete examples of

obviously testimonial statements, referencing: “prior testimony

[given] at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations.” 541 U.S. at __, 124 S.

Ct. at 1374. 

As we noted above, the Court declined to adopt any

specific definition of “testimonial statements.” Instead, it

resolved the case by noting that formal “[s]tatements taken by

police officers in the course of interrogations are . . . testimonial

under even a narrow standard.” Crawford, 541 U.S. at __, 124 S.

Ct. 1364. The Court therefore held that the trial court’s

admission of Mrs. Crawford’s statements to the police as

evidence against Crawford violated his rights under the Sixth

Amendment. 

With this summary in place, it is now appropriate to

consider how the Confrontation Clause analysis in Crawford

applies to the case at bar.

A. The Title III Recordings

Following the decision in Crawford, the courts of appeals

have struggled with the definition of “testimonial hearsay.” See,

e.g., United States v. Rodriguez-Marrero, 390 F.3d 1, 17 (1st

Cir. 2004) (“We conclude that Llaurador’s signed confession,

presented under oath to the prosecutor in Puerto Rico, is

testimonial hearsay within the meaning given by the Supreme

Court [in Crawford].”); United States v. Cromer, 389 F.3d 662,

674 (6th Cir. 2004) (stating that “[a] statement made knowingly

to the authorities that describes criminal activity is almost always

testimonial” and thus concluding that CI’s statement to police

wherein CI implicated defendant in criminal activity constituted

testimonial hearsay); Parle v. Runnels, 387 F.3d 1030, 1037 (9th

Cir. 2004) (suggesting, in dictum, that statements contained in

diary constituted nontestimonial hearsay); United States v.

Bruno, 383 F.3d 65, 78 (2d Cir. 2004) (stating that plea

allocution transcript and grand jury testimony of unavailable

witnesses constituted testimonial hearsay); see generally Robert

P. Mosteller, Crawford v. Washington: Encouraging & Securing
13

the Confrontation of Witnesses, 39 U. Rich. L. Rev. 511, 533-

615 (2005).

Under Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. § 2510 et seq., a duly authorized

law enforcement officer must obtain approval from the United

States Attorney General or a designated Assistant Attorney

General in order to apply to a federal judge for approval to

intercept and record wire communications. 18 U.S.C. § 2516(1);

see also United States v. Giordano, 416 U.S. 505, 512-13 (1974). 

Once such approval is obtained, the officer must present to a

judge a written application for a wiretap, 18 U.S.C. § 2518,

which must contain an adequate and particularized showing of

probable cause. 18 U.S.C. § 2518(3)(b). It must also contain a

showing of necessity, 18 U.S.C. § 2518(3)(c), and explain why

“normal investigative techniques would be of no avail.” United

States v. Adams, 759 F.2d 1099, 1114 (3d Cir. 1985). The

Government must further take steps to minimize the monitoring

of nonpertinent conversations and otherwise to limit invasions of

privacy. 18 U.S.C. § 2518(5); see generally United States v.

Sorapuru, 902 F. Supp. 1322 (D. Colo. 1995). In the instant

case, the District Court determined that the wiretaps at issue

were “legally sufficient in terms of authority, probable cause,

necessity, and minimization.” J.A. at 39. Those findings are not

before this court.

As recounted in Section I, the District Court ruled that

multiple conversations between the various Defendants and

other third parties surreptitiously intercepted by law enforcement

through Title III wiretaps were testimonial statements and thus

inadmissible unless the particular speakers in any given

conversation were to testify at trial. The District Court’s

decision to exclude the Title III recordings on the basis of

Crawford--under any conceivable definition of “testimonial”--

was error. Indeed, at oral argument, counsel for the defense was

unable to argue to the contrary.

First and foremost, the recorded conversations here at

issue neither fall within nor are analogous to any of the specific

examples of testimonial statements mentioned by the Court. 
14

Crawford, 541 U.S. at __, 124 S. Ct. at 1374 (listing “prior

testimony [given] at a preliminary hearing, before a grand jury,

or at a former trial[,] and . . . police interrogations” as examples

of obviously testimonial statements). Second, the recorded

conversations do not qualify as “testimonial” under any of the

three definitions mentioned by the Court. They are not “ex parte

in-court testimony or its functional equivalent,” nor are they

“extrajudicial statements . . . contained in formalized . . .

materials, such as affidavits, depositions, prior testimony, or

confessions.” 541 U.S. at __, 124 S. Ct. at 1364 (internal

citations and quotations omitted). Each of the examples referred

to by the Court or the definitions it considered entails a formality

to the statement absent from the recorded statements at issue

here. Even considered in perspective of the broad definition

offered by the NACDL, the Title III recordings cannot be

deemed “testimonial” as the speakers certainly did not make the

statements thinking that they “‘would be available for use at a

later trial.’” Crawford, 541 U.S. at __, 124 S. Ct. 1364 (quoting

Brief of NACDL). Rather, the very purpose of Title III

intercepts is to capture conversations that the participants believe

are not being heard by the authorities and will not be available

for use in a prosecution.

A witness “who makes a formal statement to government

officers bears testimony in a sense that a person who makes a

casual remark to an acquaintance does not.” Crawford, 541 U.S.

at __, 124 S. Ct. at 1364. The Title III recordings here at issue

are much more similar to the latter than the former. Therefore,

as recognized by other courts that have addressed similar issues,

we find that the surreptitiously monitored conversations and

statements contained in the Title III recordings are not

“testimonial” for purposes of Crawford. See Horton v. Allen,

370 F.3d 75, 84 (1st Cir. 2004) (finding “statements . . . made

during a private conversation” nontestimonial); State v. Rivera,

844 A.2d 191, 202 (Conn. 2004) (“Glanville made the statement

in confidence and on his own initiative to a close family member

. . . . [It] clearly does not fall within the core category of ex

parte testimonial statements that the court was concerned with in

Crawford.”). Cf. United States v. Robinson, 367 F.3d 278, 292

n.20 (5th Cir. 2004) (“[T]he statement challenged as hearsay was
8

 For example, if the United States urges that a particular

Title III recording is admissible as a coconspirator statement, the

District Court must determine, inter alia, that the statement was

made “‘in furtherance of’” the conspiracy. United States v. Ellis,

156 F.3d 493, 496 (3d Cir. 1998) (quoting and construing Fed. R.

Evid. 801(d)(2)(E)). We take no position on whether the District

Court should undertake such inquiries prior to trial, or during the

course of trial as the various objections arise.

15

made during the course of the conspiracy and is non-testimonial

in nature.”); United States v. Reyes, 362 F.3d 536, 541 n.4 (8th

Cir. 2004) (“[C]o-conspirator statements are nontestimonial.”);

People v. Cook, 815 N.E.2d 879, 893 (Ill. App. Ct. 2004) (“[I]f

the statements in question qualify as co-conspirator statements,

the rule announced in Crawford does not apply to bar their

admission.”).

Inasmuch as the District Court erroneously interpreted the

Crawford ruling as requiring the rejection of the Title III

recordings, we will reverse its order denying the United States’

motion in limine. As we concluded above, the Title III

recordings are not testimonial. Because of the District Court’s

reliance on Crawford, it never considered whether the Title III

conversations were admissible under the proper standards set

forth in the Federal Rules of Evidence and, to the extent it is

applicable, the reliability standard under Roberts, 448 U.S. at 66. 

But see Bourjaily v. United States, 483 U.S. 171, 183-84 (1987)

(“[W]e hold that the Confrontation Clause does not require a

court to embark on an independent inquiry into the reliability of

statements that satisfy the requirements of [Fed. R. Evid.]

801(d)(2)(E).”). Cf. United States v. Inadi, 475 U.S. 387, 399-

400 (1986) (holding that Confrontation Clause does not require

the prosecution to show that 801(d)(2)(E) declarant is

unavailable). Therefore, on remand the District Court is directed

to determine on an individualized basis whether each of the Title

III recordings is admissible (and, if admissible, against whom

and for what purpose).8

B. The Conversations Involving CI Rivera

The District Court also ruled that the United States could
9

 Of course, the various defendants and coconspirators, as

the other half of the conversational equation, certainly did not

realize that their statements were going to be used prosecutorially.

And, as explained in the above text, because they constitute

admissions unwittingly made, the defendants and coconspirators’

portions of the CI Rivera conversations are clearly nontestimonial

statements and are thus not subject to the Crawford rule. See

United States v. Saget, 377 F.3d 223, 229-30 (2d Cir. 2004) (“We

. . . conclude that Beckham’s statements to the CI were not

testimonial, and Crawford does not bar their admission.”).

16

not introduce conversations between CI Rivera and various of

the Defendants. Although occasionally a telephone conversation

between Rivera and one of the Defendants was caught in a Title

III wiretap, the conversations that fall within this heading are

face-to-face conversations that were recorded by Rivera wearing

a taping device provided by the Government. It cannot be

disputed that CI Rivera knew of the Government’s surreptitious

recording and documentation of these conversations. The

District Court noted that, “[i]n discussing the ‘core’ class of

statements that are considered testimonial, the . . . [Crawford]

Court specifically included ‘. . . pretrial statements that

declarants would reasonably expect to be used prosecutorially.’”

J.A. at 68 (quoting Crawford, 541 U.S. at __, 124 S. Ct. at

1364). The District Court reasoned that because CI Rivera was

working with the Government for the very reason of obtaining

evidence against the Defendants for use in the Government’s

investigation and prosecution, the conversations fell within the

rule of Crawford.

The District Court’s analysis is not without some appeal. 

Insofar as they contain the statements of CI Rivera, the

conversations reasonably could be categorized as involving

statements that Rivera expected to be used prosecutorially;

obtaining evidence for the prosecution is, after all, the raison

d’être of being a confidential informant.9 However, the

Crawford decision cites with approval Bourjaily v. United

States, 483 U.S. 171 (1987), a case in which the Court rejected a

Confrontation Clause objection to the admission of a
17

conversation between a co-defendant and a confidential police

informant. Indeed, the Crawford Court referenced Bourjaily as

an example of a case in which nontestimonial statements were

correctly admitted against the defendant despite the lack of a

prior opportunity for cross-examination. See Crawford, 541

U.S. at __, 124 S.Ct. at 1368 (citing Bourjaily, 483 U.S. at 181-

84).

In Bourjaily, the Court addressed the admissibility of

admissions made unwittingly by William Bourjaily’s codefendant (and purported coconspirator) to an informant. The

Court held that even though Bourjaily had not had a prior

opportunity to cross-examine his co-defendant regarding the

statements, if the statements were admissible under Fed. R. Evid.

801(d)(2)(E) their introduction as evidence against Bourjaily did

not run afoul of the Confrontation Clause. Bourjaily, 483 U.S. at

183. The Court reached this outcome despite the fact that the

co-defendant was, due to his invocation of the privilege against

self-incrimination, “unavailable” to testify at trial. Bourjaily,

483 U.S. at 182. As mentioned, Crawford approved of this

holding, citing it as an example of a case that is “consistent

with” the principle that the Sixth Amendment permits the

admission of nontestimonial statements in the absence of a prior

opportunity for cross-examination. Crawford, 541 U.S. at __,

124 S.Ct. at 1367. 

To be sure, there is a difference between the analysis

undertaken by the Court in Bourjaily and the analysis urged by

the Defendants here. Specifically, in Bourjaily, the Court

focused on the unavailability of the coconspirator whose

conversation with a confidential informant the Government

sought to introduce. In contrast, the Defendants here emphasize

the unavailability of the confidential informant. Stated

otherwise, although the Bourjaily Court addressed the

Confrontation Clause implications of the admission of

conversations with a government informant, it focused on the

non-informant half of the conversation.

During oral argument before us, the United States

conceded that it was not seeking to introduce the statements of
18

CI Rivera for their truth and thus correctly argued that the

introduction of his statements would present no hearsay problem. 

See Fed. R. Evid. 801(c). As recognized by the Crawford Court,

the Confrontation Clause likewise “does not bar the use of

testimonial statements for purposes other than establishing the

truth of the matter asserted.” Crawford, 541 U.S. at __, 124 S.

Ct. 1369 n.9; see also United States v. Trala, 386 F.3d 536, 544-

45 (3d Cir. 2004) (finding no Confrontation Clause violation

where reliability of out-of-court statements was not at issue and

where the statements were not introduced for their truth). 

Therefore, even if we were to hold that CI Rivera’s statements

within the conversations are themselves testimonial, an issue we

need not reach, such an outcome would not preclude the United

States from introducing CI Rivera’s statements for a purpose

other than establishing the truth of the matters contained therein.

Due to the Crawford Court’s reaffirmation of Bourjaily,

we conclude that the party admission and coconspirator portions

of the disputed CI Rivera conversations are nontestimonial and

thus, assuming compliance with the Federal Rules of Evidence,

are admissible. See also Saget, 377 F.3d at 229-30. Stated

otherwise, Crawford presents no bar to the admission of the

statements of Defendants or their coconspirators made in the

conversations with CI Rivera that he surreptitiously recorded. 

Under these circumstances, we conclude that the

Government should be permitted to introduce the balance of the

conversations, i.e., the statements of CI Rivera which, as the

Government argues, put the statements of the other parties to the

conversations “into perspective and make them intelligible to the

jury and recognizable as admissions.” United States v.

McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990) (internal

citations and quotations omitted); see also United States v.

Stelten, 867 F.2d 453, 454 (8th Cir. 1988) (per curiam); United

States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988);

United States v. Murray, 618 F.2d 892, 900 (2d Cir. 1980);

United States v. Lemonakis, 485 F.2d 941, 948-49 (D.C. Cir.

1973). 

We thus hold that if a Defendant or his or her
10

 In an argument posited in the alternative, Defendant

Hendricks, joined by Defendants Laronde and Fleming, argue that

even if the District Court misconstrued Crawford, this court should

not reverse because the District Court’s decision to exclude the

disputed evidence was also based on findings of unreliability--

findings to which the Defendants suggest this court should defer.

See Br. of Appellee Hendricks at 12. But see Bourjaily, 483 U.S.

at 184. The Defendants are correct that reliability determinations

are matters peculiarly within the ken of the district courts. See

United States v. Lawrence, 349 F.3d 109, 115 (3d Cir. 2003);

United States v. Starks, 515 F.2d 112, 121 (3d Cir. 1975). Here,

however, the District Court’s decision to exclude the disputed

evidence was based on its erroneous interpretation of Crawford and

consequently did not turn on any findings of unreliability. For this

reason, the alternative argument is unconvincing.

19

coconspirator makes statements as part of a reciprocal and

integrated conversation with a government informant who later

becomes unavailable for trial, the Confrontation Clause does not

bar the introduction of the informant’s portions of the

conversation as are reasonably required to place the defendant or

coconspirator’s nontestimonial statements into context.

Accordingly, the District Court’s ruling to exclude the

conversations involving CI Rivera on the basis of Crawford was

error. Nonetheless, as we stated above in respect to the Title III

recordings, on remand the District Court must determine on an

individualized basis whether each of the disputed conversations

is indeed authentic and otherwise admissible under the Rules of

Evidence and the decisional law thereon.

III.

We therefore will grant the United States’ appeal, reverse

the order of the District Court, and remand for further

proceedings not inconsistent with this opinion.10