Sunday, September 14, 2014

Case o' The Week: Ninth Clears Way for More Hearsay - the Forfeiture Doctrine and Antoine Johnson

 “More likely than not.”
  Close enough, for Ninth, in disappointing new decision of first impression on the “forfeiture exception” to the Sixth Amendment. United States v. Antoine Lamont Johnson, 2014 WL 4473957 (9th Cir. Sept. 12, 2014), decision available here.

Players: Decision by Judge Schroeder, joined by Judge Clifton and D.J. Tunheim. Hard-fought appeal by SD Cal Defender alumni Ben Coleman and ND Cal CJA Attorney Ethan Balogh.

Facts: Antoine Lamont Johnson (with an unfortunate a.k.a. of “O Killer”) and Williams were convicted of armed robbery and murder, arising from the robbery of an armored truck. Id. at *1. At trial, the government introduced several out-of-court statements of an informant, Veronica Burgess. Id. She had come to police, explained she overheard the gang members planning the heist, and identified Johnson (and later, Williams) in photo spreads. Id. The government couldn’t locate her before trial, and argued that Johnson had threatened Ms. Burgess to prevent her from testifying. Id. at *1-*2. Burgess began receiving threats from gang members the day after defense counsel were permitted to disclose witness identities to the defendants. Id. at *2. The government argued that Johnson – who was in the SHU – had the ability to communicate through outside gang members through kites, and argued that the wording of the threats tied Johnson to the threatened witness. Id. 
  Defense counsel countered that other suspects had motives to threaten Burgess, and that Burgess had recanted her story to a private investigator. Id. The defense argued that the government had not shown by clear and convincing evidence that Johnson had made Burgess unavailable: the district court found the government had shown this link by a preponderance of evidence under FRE 804, and admitted the hearsay. Id. 
  Both Johnson and Williams were convicted and received life sentences. Id. at *3.

Issue(s): “This criminal appeal presents an issue of first impression for our circuit, post-Crawford.Id. at *1. “The issue concerns the so-called ‘forfeiture exception’ to the Confrontation Clause of the Sixth Amendment. That exception applies when the defendant is responsible for the witness being unavailable. We must decide whether proof of the defendant’s responsibility for the witness’s absence must be shown by a preponderance of the evidence, as provided by Rule 804(b)(6) of the Federal Rules of Evidence, or, in light of Crawford and its progeny, by clear and convincing evidence.” Id.

Held:With respect to the forfeiture exception, we join the circuits that have decided the issue since Crawford in holding that the standard has not changed and the provisions of the Rule continue to apply.” Id.

Of Note: This disappointing decision continues a Circuit split, with the Fifth (?!?) Circuit offering greater evidentiary protections than the Ninth. See id. at *4 (discussing United States v. Thevis). Ironically, “clear and convincing evidence” has traditionally been used in civil cases, regarding issues such as civil fraud or lost wills where a party is suspected of foul play. See Woodby v. INS, 385 U.S. 276, 287 & n.18 (1966). 
  It seems unfair that this lower preponderance standard for forfeiture eludes Crawford’s protections in the criminal context. It seems particularly unfair when the (hearsay) informant in this case had real credibility problems, and there was not clear and convincing evidence that Johnson was in fact responsible for Burgess’s unavailability.

How to Use: Preponderance ain’t much, but note that it still has to be proved. Judge Schroeder distinguishes a Second Circuit decision where the government had failed to explain how the incarcerated defendant intimated the witness. Id. at *7. In Johnson, the government offered a prison guard who claimed he saw the defendant passing kites – thereby showing a means of getting threats out of the jail. Id. 
  Don’t give up when faced with forfeiture as a hearsay exception, without forcing the government to prove this essential link.
For Further Reading: It isn’t enough to kill a witness – a defendant has to kill the witness with the intent of quieting the victim, for the forfeiture doctrine to kick in. See Giles v. California, 554 U.S. 353 (2008). A Texas prosecutor has penned a helpful piece explaining this intent requirement for the forfeiture exception. See “The forfeiture by wrongdoing doctrine nine years after Crawford, available here.

Image of the Hon. Senator Charles Schumer with “Snitches Get Stiches” T-shirt from

Steven Kalar, Federal Public Defender ND Cal. Website at


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