Cherry Still on Top: How Pinkerton Concepts Continue to Govern Co-Conspirator Forfeiture of Confrontation Rights Post-Giles

INTRODUCTIONThe K Street Crew sold large quantities of marijuana across the greater Washington, D.C. area for two decades, protecting their trade with an astonishing amount of violence.1 When the FBI finally found an informant, Robert "Buchie" Smith, who was willing to testify against this impenetrable criminal enterprise, the gang's enforcer tracked down this witness-to-be and murdered him in cold blood.2 Before Smith was murdered, however, he made various statements to the FBI that incriminated gang members and detailed the Crew's criminal operations.3During the trial of Samuel Carson-the so-called enforcer of the gang alleged to have murdered Smith-the government introduced prior statements that the deceased informant made to the FBI.4 Despite Carson's claim that the introduction of these statements violated his constitutional right to face his accuser, the district court concluded that the defendant forfeited his right to confront this witness by way of his wrongdoing (murdering the informant) and, therefore, admitted the testimony.5 This decision was hardly controversial, as the longstanding doctrine of forfeiture by wrongdoing dictated the result.6 What was controversial, however, was the court's decision to allow Smith's statements to be used against other K Street gang members as well-members that did not participate in Smith's murder.7 In 2006, in United States v. Carson, the U.S. Court of Appeals for the D.C. Circuit affirmed the district court's decision and held that Carson not only forfeited his own right to face his accuser, but his misconduct also forfeited the Confrontation Clause rights of his fellow K Street Crew co-conspirators.8 Accordingly, the convictions of all of the K Street Crew members were upheld.9The D.C. Circuit's holding in this case is representative of the trend among modern-day courts: when faced with witness intimidation in the context of group criminality, courts have relied on familiar concepts of conspiracy liability to define the limits of the forfeiture by wrongdoing doctrine.10 In 2000, in United States v. Cherry, the U.S. Court of Appeals for the Tenth Circuit held that because defendants can be held liable for the misdeeds of their coconspirators under conspiratorial liability theory,11 defendants might also forfeit their Confrontation Clause rights when their co-conspirators make witnesses unavailable.12 To impute this forfeiture to a co-conspirator, the government must demonstrate that the witness interference-here, in the form of murder-was: (1) done in furtherance of the conspiracy; (2) within the scope of the unlawful project; and (3) reasonably foreseeable as a necessary or natural consequence of the unlawful agreement.13At first glance, the U.S. Supreme Court's 2008 decision in Giles v. California appears to have jeopardized the Cherry doctrine, for it added a new element of intent to the forfeiture analysis.14 Justice Antonin Scalia, writing for the majority in Giles, opined that criminal defendants do not forfeit their Confrontation Clause rights simply upon a mere showing that they caused the unavailability of a witness.15 In addition to this but-for causation, the government must also demonstrate that the defendant's actions were designed to prevent the witness from testifying.16Although some have predicted that this language will restrict the doctrine of forfeiture by wrongdoing in the co-conspirator context,17 this Note argues that the Giles decision does not disturb the doctrine's continued application.18 As suggested by the Tenth Circuit in Cherry, courts should freely make the logical inference that a conspiracy is designed to achieve all that is reasonably foreseeable to its members.19 Accordingly, despite the change in language, the thrust of the Cherry doctrine survives Giles in the co-conspirator context: so long as one co-conspirator's actions were designed to make a witness unavailable, courts should freely find forfeiture for the other co-defendants if the wrongdoing was reasonably foreseeable and within the scope of the conspiracy. …