## F I L E D United States Court of Appeals Tenth Circuit 

### March 6, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 05-3061 MARIO FAULKNER,

Defendant - Appellant.

______________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ANTONYO LADARRELL RODGERS, Defendant - Appellant No. 05-3073

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 03-CR-20191-01-JWL) and (D.C. NO. 03-CR-20191-03-JWL)

Theodore J. Lickteig, Law Offices of Theodore J. Li ckteig, Overland Park, Kansas, for the Defendant - Appellant, Mario Faulkner. Stephen B. Chapman, Chapman & White, LLC, Olathe, K ansas, for the Defendant - Appellant, Antonyo Ladarrell Rodgers.-2-

Terra D. Morehead, Assistant United States Attorney(Eric F. Melgren, United States Attorney, with her on the brief), Kansas City, Kans as, for Plaintiffs-Appellees.

Before TACHA , Chief Judge, ANDERSON , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.
Mario Faulkner, Antonyo Ladarrell Rodgers, and Maur ice Anthony Peters were charged in the United States District Court fo r the District of Kansas in a two-count indictment with attempt (Count 1) and con spiracy (Count 2) to murder Shedrick Kimbrel to prevent him from testifying in the federal kidnapping trial of Demetrius R. Hargrove. See 18 U.S.C. §§ 371, 1512(a). Peters pleaded guilty to Count 2 and agreed to cooperate with the prosecutio n. Mr. Faulkner and Mr. Rodgers (Appellants) went to trial. At the clo se of the evidence, the district court granted their motion to dismiss Count 1. The jury found them guilty on
Count 2. Before trial Appellants moved to suppress recording s of five telephone conversations between Hargrove and others (includin g themselves) while he was detained pending trial at the Corrections Corporati on of America facility in Leavenworth, Kansas (CCA). They argued that the re corded conversations should be excluded from evidence under the Federal Wiretap Act, 18 U.S.C. § 2510 et
seq. The district court held that the recordings were admissible under the-3-

“consent” exception in the Act. See 18 U.S.C. § 2511(2)(c)-(d). Appellants also filed a motion in limine arguing that admission of the conversations would violate the Confrontation Clause of the United States Const itution. U.S. Const. amend.
VI. The district court ruled that the statements were n ot testimonial and therefore were not barred by the Confrontation Clause. Durin g trial the court found that the tapes were properly authenticated and allowed them in as statements in furtherance of a conspiracy. On appeal Appellants contend that the district court erred in its rulings under the Wiretap Act and the Confrontation Clause. We affirm.
I. FACTUAL BACKGROUND CCA is a privately operated prison which houses pre trial detainees under a contract with the United States Marshals Service. Upon arrival at CCA, detainees receive an orientation manual which states, among o ther things, that the “[t]elephones are subject to recording and monitori ng.” R. Vol. Five at 10. In addition, detainees are told during orientation that their calls “could be” recorded, id . at 11, they receive an inmate handbook which stat es that “[t]elephone conversations may be monitored and/or recorded for security reasons,” id . at 13, and signs posted over each of the general-populatio n phones announce that calls are subject to monitoring, id . at 14. Moreover, it appears that when a call is-4-

placed from CCA, a recorded voice states, “This cal l is subject to monitoring and recording.” Id . at 23-24. All telephone calls are, in fact, recorded. It was from these prison phones that Hargrove made calls and spoke with Appellants to conspire to murder Shedrick Kimbrel. The calls were monitored and recorded by CCA, and five of these calls were a dmitted as evidence at trial.
II. FEDERAL WIRETAP ACT The Federal Wiretap Act “generally forbids the inte ntional interception of wire communications, such as telephone calls, when done without court-ordered authorization.” United States v. Workman , 80 F.3d 688, 692 (2d Cir. 1996). “It protects an individual from all forms of wiretappin g except when the statute specifically provides otherwise.” United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002) (internal quotation marks omitted). When information is obtained in violation of the Ac t, “no part of the contents of such communication and no evidence deri ved therefrom may be received in evidence in any trial.” 18 U.S.C. § 25 15. But only an “aggrieved person . . . may move to suppress” a communication that was “unlawfully intercepted.” Id . § 2518(10)(a); see Alderman v. United States , 394 U.S. 165, 175 & n.9 (1969) (Congress could have excluded such evi dence “against anyone for any purpose” but “has not done so. . . . Congress has provided only that an ‘aggrieved person’ may move to suppress . . . a . . . communication intercepted in-5-

violation of the Act.”). An “aggrieved person” is defined by the Act as “a person who was a party to any intercepted wire, oral, or e lectronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11). This standing requirement “should be construed in accord ance with existent standing rules.” Alderman , 394 U.S. at 176 n.9. Generally, to establish sta nding the movant must show that (1) he was a party to the com munication, (2) the wiretap efforts were directed at him, or (3) the intercepti on took place on his premises. See United States v. Apple , 915 F.2d 899, 905 (4th Cir. 1990). Of the five intercepted communications that were admitted at tr ial, Mr. Faulkner was a party to two and Mr. Rodgers was a party to another. On the record before us it does not appear that either has standing to challenge ad mission of any of the intercepted communications they were not parties to . Nevertheless, the government has not raised the issue, so we need notaddress it. See United States
v. Dewitt , 946 F.2d 1497, 1499 (10th Cir. 1991) (standing is sue waived when not raised by government). The government does not dispute that the Act applie s to prisons. See Hammond, 286 F.3d at 192; United States v. Feekes , 879 F.2d 1562, 1565 (7th Cir. 1989); United States v. Amen , 831 F.2d 373, 378 (2d Cir. 1987). To justify the challenged interceptions, the government relies on the “law enforcement” exception, 18 U.S.C. § 2510(5)(a)(ii) (definition o f interception excludes-6-

recording made by “any telephone . . . instrument, equipment or facility . . . being used by . . . an investigative or law enforcement o fficer in the ordinary course of his duties”), and the “consent” exception, id . § 2511(2)(d). The district court rejected the law-enforcement exception because ther e was no evidence that CCA officials had been granted law-enforcement authority by the Marshals Service.
See id . § 2510(7) (defining investigative or law enforcement officer as one who is “empowered by law to conduct investigations of or t o make arrests for” violations of Chapter 18 of the United States Code). But it r uled that the consent exception applied. Because we hold that the recordings were properly admitted under the consent exception, we need not resolve whether theymight also have been admissible under the law-enforcement exception. The consent exception provides: It shall not be unlawful under this chapter for a p erson not acting under color of law to intercept a wire, oral , or electronic communication where such person is a party to the c ommunication or where one of the parties to the communication has g iven prior consent to such interception unless such communicat ion is intercepted for the purpose of committing any crimi nal or tortious act in violation of the Constitution or laws of the Uni ted States or of any State. Id . § 2511(2)(d). (Section 2511(2)(c) provides the s ame exception for persons acting under color of law except that the “unless” clause is omitted.) It is generally accepted that a prisoner who places a cal l from an institutional phone with knowledge that the call is subject to being re corded has impliedly consented-7-

to the recording. See United States v. Footman , 215 F.3d 145, 154 (1st Cir. 2000); Amen , 831 F.2d at 378-79 (2d Cir.); Hammond, 286 F.3d at 192 (4th Cir.); United States v. Horr , 963 F.2d 1124, 1126 (8th Cir. 1992); United States v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996). The only circu it opinion to question this application of the consent exception is Feekes , 879 F.2d 1562. In that opinion the Seventh Circuit upheld the recording of prisoners’ conversations under the lawenforcement exception to the Wiretap Act but added the following dictum in response to the contention that the consent excepti on applied because the prisoners had been notified that their calls would be monitored: To take a risk is not the same thing as to consent. The implication of the argument is that since wiretapping is known to be a widely employed investigative tool, anyone suspected of cr iminal (particularly drug) activity who uses a phone conse nts to have his phone tapped—particularly if he speaks in code, the reby manifesting an awareness of the risk. Id . at 1565. We are not persuaded to depart from the unanimous v iew of the holdings by our fellow circuit courts. The issue is solely one of statutory interpretation . The Second Circuit observed that “[t]he legislative his tory shows that Congress intended the consent requirement [exception?] to be construed broadly,” Amen , 831 F.2d at 378, noting in support that the Senate Report on the Wiretap Act said of the consent exception: “‘Consent may be expresse d or implied. Surveillance devices in banks or apartment houses for institutio nal or personal protection-8-

would be impliedly consented to.’” Id . (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code Cong. & Admin.News 2112, 2182). Of course, there is a difference between broad and unlimited . We agree with Feekes that engaging in drug trafficking does not in itsel f imply consent to a wiretap. But that is not this case. We are dealing here wit h incarcerated persons who receive very specific warnings about particular pho nes. To be sure, the prisoners at CCA did not have the opportunity to choose anoth er, unmonitored telephone. But loss of some choice is a necessary consequence of being confined, and “[p]rison inmates have few expectations of privacy in their communications.”
Footman , 215 F.3d at 155. Rarely are choices in life tota lly free from opportunity costs; something must be foregone whenever one come s to a fork in the road. The real issue is whether imposition of a condition is acceptable, so that a choice subject to that condition is considered a voluntary , consensual one. See Brady v. United States , 397 U.S. 742, 749-52 (1970) (guilty plea was volu ntary even though entered to avoid threat of death penalty). Because of the undeniable need to control prisoner communications to the outside w orld, we have no hesitation in concluding that a prisoner’s knowing choice to use a monitored phone is a legitimate “consent” under the Wiretap Act. In this case Hargrove impliedly consented to record ing of the conversations. As previously noted, detainees at C CA receive numerous warnings-9-

that their calls may be recorded. Hargrove was und oubtedly well aware of these warnings; during a conversation with Mr. Rodgers he said, “I can’t hardly talk on this phone, cause you know they got it screened. . . . [They] got this phone tapped so I gotta be careful.” R. Vol. Four, Gov. Ex. 13 at 14. (The coded language used by Appellants indicates that they too were aware that the calls were being monitored.) Appellants complain that they were not the ones who answered the calls placed by Hargrove and they did not hear the record ed voice. But this is irrelevant because the consent of one party is enou gh, Footman , 215 F.3d at 154 (“It is settled law that only one party need consen t to the interception of the calls.”), and Hargrove consented. The district cou rt therefore properly held that the consent exception applied and the conversations were not excludable under the Wiretap Act.
III. CONFRONTATION CLAUSE Appellants also contend that admission of the recor ded conversations violated the Confrontation Clause of the United States Constitution because Hargrove did not take the stand and there was no ch ance to cross-examine him. The Clause guarantees a criminal defendant “the rig ht . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI.-10-

The district court relied on Crawford v. Washington , 541 U.S. 36 (2004), to hold that the Confrontation Clause would not be vio lated by admission of the taped conversations. Crawford held that the Clause bars the admission of “testimonial” hearsay unless (1) the declarant test ifies at trial, id . at 59 n.9, or (2) the declarant is unavailable to testify and was pre viously subject to crossexamination concerning the statement, id . at 59. Although Crawford did not define testimonialprecisely, id. at 68 (“We leave for another day any effort to spell out a comprehensive definition of ‘testimonia l.’”), it said that the term encompasses formal statements to government officer s, including at least statements during police interrogation and prior te stimony, see id . at 51-52, 68; see also United States v. Summers , 414 F.3d 1287, 1302 (10th Cir. 2005) (“[W]e hold that a statement is testimonial if a reasonabl e person in the position of the declarant would objectively foresee that his statem ent might be used in the investigation or prosecution of a crime.”). The di strict court in this case ruled that the recorded statements were not testimonial, a conclusion well-supported by Crawford

. See 541 U.S. at 56 (“statements in furtherance of a con spiracy” are examples of “statements that by their nature [are] not testimonial”). Crawford

left open, however, whether the Confrontation Clau se applies to nontestimonial hearsay. See id . at 53 (stating that testimonial hearsay is primary object of the Sixth Amendment, “even if the Sixth A mendment is not solely1 The Federal Rules of Evidence do not treat declarat ions by conconspirators as an

exception to the hearsay rule but as nonhearsay. See Fed. R. Evid. 801(d)(2)(E) (“A statement is not hearsay if . . . . [t]he statementis offered against a party and is . . . a (continued...) -11- concerned with testimonial hearsay”); 61 (“we need not definitively resolve whether [the rejection in White v. Illinois , 502 U.S. 346, 352-53 (1992), of the proposition that the Confrontation Clause applies o nly to testimonial statements] survives our decision today.”). Thus, in this opinion we could engage in speculatio n regarding the scope of the Confrontation Clause after Crawford . But that is unnecessary. One thing that is clear from Crawford

is that the Clause has no role unless the challeng ed out-ofcourt statement is offered for the truth of the matter asserted in the statement. Crawford states: “The Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of t he matter asserted.” 541 U.S. at 60 n.9. And the only nontestimonial statements that it considers to be possible subjects of the Clause are “nontestimonial hearsay .” Id . at 68 (emphasis added); see id . at 60 (to extent Confrontation Clause covers more than testimonial statements, its subject is hearsay). In other word s, the Clause restricts only statements meeting the traditional definition of he arsay. See generallyFed. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered i n evidence to prove the truth of the matter asserted.”). 11 (...continued)

statement by a conconspirator of a party during the course and in furtherance of the conspiracy.”). The explanation for this nomenclature is that the rationale for the admissibility of these (and other statements catego rized as “admissions”) is that “their admissibility in evidence is the result of the adve rsary system rather than satisfaction of the conditions of the hearsay rule.” Fed. R. Evid. 801 advisory committee notes on 1972 proposed rules. This explanation, however, do es not change the Confrontation Clause analysis; the Supreme Court consistently ref ers to the admissibility of “statements in furtherance of a conspiracy” as a “h earsay exception[ ].” Crawford, 541 U.S. at 56; see Bourjaily v. United States , 483 U.S. 171 (1987) (repeatedly referring to coconspirator statements as hearsay). -12- At Appellants’ trial the only statements by Hargrov e offered into evidence were not offered for the truth of any assertions he made. This is hardly unusual in conspiracy cases, but the point is often, even gene rally, overlooked. Statements by coconspirators are commonly introduced at trial simply because the statements themselves are part of the plotting to commit a cri me. The coconspirator is not asserting the truth of a historical event. Rather, he is directing the conduct of a fellow conspirator or agreeing to follow directions . Even statements about historical events—such as an assertion that the tar geted victim had shot a member of the gang plotting revenge—typically are not offe red for their truth; whether the target actually committed the alleged offense is ir relevant to the guilt of the plotters. As explained in the Advisory Committee Notes to Fed . R. Evid. 801, “If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserte d, and the statement is not-13-

hearsay. . . . The effect is to exclude from hears ay the entire category of ‘verbal acts’ and ‘verbal parts of an act,’ in which the st atement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights.” Fed. R. Evid. 801 advisory committee’s no te to subdivision (c). Thus, Professor Mueller writes: [C]oconspirator statements are sometimes hearsay, and sometimes not. In the trial of Thomas Hardy in 1794, Chief J ustice Eyre offered the simplest illustration of this point: If three p ersons are prosecuted for conspiracy, the conversation in which they plan the venture and agree to participate is not hearsay, and the words spoken by each may be proved against all, but a later statement by one of them admitting his involvement would be hearsay if offered againstthe others to prove that point. Christopher B. Mueller, The Federal Coconspirator Exception: Action, Assert ion, and Hearsay , 12 Hofstra L. Rev. 323, 326 (1984); see, e.g. , United States v. Lim , 984 F.2d 331, 336 (9th Cir. 1993) (statements betwe en defendant and unindicted coconspirator are “not hearsay; they are verbal act s admissible to show that a conspiratorial agreement existed”); New York v. Hendrickson Bros., Inc. , 840 F.2d 1065, 1075 (2d Cir. 1988) (same); United States v. Miller , 771 F.2d 1219, 1233 (9th Cir. 1985) (unnecessary to consider whether ce rtain testimony “was admissible as a co-conspirator statement or whetherit violated appellants’ confrontation rights” because statements not offere d for their truth; “their significance lies solely in the fact that [the coco nspirators] made them”); United States v. Hamilton , 689 F.2d 1262, 1270 n.4 (6th Cir. 1982) (orders p laced for-14-

explosives on behalf of conspiracy were not hearsaybut “verbal acts . . . unaffected by the coconspirator rule”); United States v. Burke , 495 F.2d 1226, 1232 (5th Cir. 1974) (“These statements, rather tha n hearsay, . . . were ‘verbal acts,’ statements which were elements of the crime charged.”). Appellants have not pointed to any of Hargrove’s st atements as having been offered for the truth of what he was asserting. Ac cordingly, their Confrontation Clause challenge must fail.
IV. CONCLUSION We AFFIRM the judgment below.