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United States v. Thurman

United States District Court, W.D. Kentucky, Louisville

January 7, 2013

UNITED STATES of America, Plaintiff
v.
Shanion M. THURMAN, James L. Robinson, Defendants.

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James Russell Lesousky, Jr., U.S. Attorney Office, Louisville, KY, for Plaintiff.

Scott T. Wendelsdorf, Western Kentucky Federal Community Defender, Inc., Elgin L. Crull, Crull & Crull, Louisville, KY, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN II, District Judge.

The Government has made pretrial motions for the admissibility of certain recorded jailhouse telephone conversations and for the testimony of a confidential source. All of which is to be used against Defendants in this case. The Court referred the matter to the Magistrate Judge who has produced a comprehensive seventy-four (74) page report and recommendation addressing each matter at issue.

The charges against Thurman and Robinson are that they conspired to use or attempt to use force and threats against a potential witness (" G.S." ) to prevent his testimony against Ricky Kelly in his murder trial. Thurman was an administrative assistant in the office of Kate Holmes, G.S.'s attorney. In that capacity she had access to many of his confidential attorney-client materials. Thurman resided with Robinson in a house at 525 Belgravia Court in Louisville. Moreover, Robinson was apparently a long-time friend of Kelly.

Two types of evidence are involved here: (1) sixteen (16) jailhouse phones between Kelly, an inmate at the Green River Correctional Complex and several other individuals on the outside, and (2) testimony of a cooperating witness (" C.S." ) regarding conversations with Robinson while he was incarcerated in the Franklin County jail.

The Government did not object to the rulings against it. Both Thurman and Robinson did file objections. Thurman focused upon the Magistrate Judge's admission of the recorded statements in Exhibits 8 (A and B) and 12 because she would be

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unable to confront Robinson, the witness whose statements would be used against her. Robinson argues that the rulings are premature, that all 16 recorded statements are testimonial in nature and also makes other specific objection to particular recorded calls and jailhouse conversation testimony from C.S.

The Court has carefully reviewed the Magistrate Judge's recommendations and the objections to it. It is fair to say that these are reasonably nuance issues, the resolution of which could depend upon the credibility of other testimony and which rely upon foundations established by other witnesses. Consequently, at best, these rulings must be considered provisional pending actual testimony at trial. The Court does not mean to suggest that the rulings are likely to change, only that the underpinning of them rest upon the assumption about certain trial testimony. Thus, the Court would retain the right to refine and revise any rulings here as the trial approaches and proceeds.

Having said all this, the Court concludes that it agrees substantially with the Magistrate Judge's analysis and that no further comment is necessary or helpful. Therefore, the Court will adopt the Magistrate Judge's recommendations in full at this time.

Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that the Magistrate Judge's report and recommendation is ADOPTED in full and that that report will guide the Court's admission of evidence at trial.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

DAVE WHALIN, United States Magistrate Judge.

FINDINGS OF FACT

The District Court has referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A), pre-trial motions (DN 59). All four involve a dispute over the admissibility of certain recorded jailhouse telephone conversations and the anticipated testimony of a confidential source (DN 36, 46, 48, 67). The conversations are part of the Government's prosecution against two Defendants, Shanion Thurman and James Robinson, who are charged by indictment with aiding one another to use and attempt to use physical force or threats of force against a potential witness, G.S., with the intent to delay or prevent his testimony against nondefendant Ricky Kelly.

Ricky Kelly and another individual, Dion Neal, are charged by a separate, prior federal indictment, United States v. Kelly, 3:11-CR-33-H, with the murder-for-hire of victim Lajuante Jackson. Proof for the Government at trial of the present case against Thurman and Robinson is expected to be that G.S. had arranged through his attorney, Kate Holmes of the Kentucky Dept. of Public Advocacy (DPA), to testify against Kelly concerning the Jackson murder and two other murders in which Kelly is allegedly involved in return for early release from state prison. This arrangement was set out in a written confidential cooperation agreement between G.S. and federal and state prosecutors in late March of 2010. The confidential agreement was mailed to the Oldham County DPA office of attorney Holmes on April 2, 2010. At that time, Defendant Shanion Thurman was employed as an administrative assistant to Holmes in the same office. The Government maintains that Thurman consequently had access to all of Holmes' client records including the confidential cooperation agreement of G.S.

The Government will offer proof that during this time in April of 2010, Thurman resided with co-defendant James L. Robinson in Louisville, Kentucky, at 525 Belgravia Ct., Apt. 4. James Robinson, as it turns

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out, is a lifelong friend of Ricky Kelly. The Government intends to prove this friendship by the introduction of various recorded jailhouse phone conversations involving Kelly and Robinson, as well as other recorded conversations involving Kelly and certain non-parties that include his brother, Terrell " Cam" Gray, and friends Latasha Downs, Tonya Masden, Tiffany Roberts and Kalila Brooks. This friendship in the Government's view explains much of what occurred next in April of 2010.

The Government asserts that within less than one week of the delivery of the written confidential cooperation agreement to attorney Holmes' office, G.S. was violently assaulted on April 7, 2010 at the Franklin County Jail where he had been relocated. Four days later, on April 11, Terrell Gray advised Kelly during a recorded jailhouse phone conversation that an individual referred to by Gray as " Little G" was cooperating with " the Feds" or the " homicide people about you." (DN 67, Ex. 9). This recorded conversation is but one of 16 jailhouse calls that the Government seeks to introduce against Robinson and Thurman at trial.

Two more such recorded phone conversations occurred that evening between Kelly and non-party Tiffany Roberts (DN 67, Ex. 10, 11). During the first such call, at approximately 8 p.m., Kelly asked Roberts to use her computer to find out which state correctional facility housed G.S. (DN 67, Ex. 10). Later at approximately 11:30 p.m., Kelly again called Roberts in another recorded phone conversation during which Roberts provided Kelly with a physical description of G.S., his criminal record, inmate numbers and presumed location (DN 67, Ex. 11).

The very next day, on April 12, Kelly and Defendant Robinson had a lengthy conversation (DN 67, Ex. 13). During this exchange, Defendant Robinson, using guarded language, informed Kelly about the assault on G.S. several days earlier and about the written confidential cooperation agreement ( Id. ). Robinson advised Kelly that G.S. had provided information about three alleged murders. ( Id. at 2). He further told Kelly that " she," codefendant Thurman according to the Government's theory, had only given Robinson information about the cooperation of G. S., and not two other unnamed individuals who also allegedly were cooperating with law enforcement to testify about Kelly's involvement in seven other murders. ( Id. ).

During the same recorded conversation, Robinson also referred to a signed statement by G.S. involving Kelly ( Id. at 3) and that Robinson had to get the information to Kelly through his brother ( Id. at 4). Robinson then promised during the recorded phone exchange that if he could get the paperwork on the other two cooperating informants, he would let Kelly know. ( Id. at 5). Robinson assured Kelly that he had seen the paperwork and that G.S., a persistent felony offender, was to be released in five months to home incarceration and was to have visitation with his daughter in return for his cooperation against Kelly. Robinson told Kelly that these terms were " in black and white" and " I wasn't supposed to see it, but I seen it...." (DN 67, p. 6).

Robinson repeated that G.S. had been beaten up a week earlier after Robinson found out. ( Id. at 7). Robinson assured Kelly that he would try to get " all the information" that he could about the other two suspected informants. ( Id. at 8). The Government now seeks to introduce into evidence these recorded phone conversations, along with a number of others, to establish that Defendant Thurman leaked the confidential cooperation agreement to Robinson, who in turn alerted Kelly and his brother, Terrell Gray, about the cooperation

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of G.S. in three homicide investigations involving Kelly, with the intent to prevent G.S. from testifying.

Because these recorded jailhouse phone calls caused law enforcement to become suspicious that Thurman had leaked the confidential cooperation agreement involving G.S., a sting operation was arranged using Louisville Metro Police Department (LMPD) homicide Sergeant Denny Butler. The Government will offer proof at trial that Sgt. Butler contacted Thurman by telephone at attorney Holmes' office on July 22, 2010. Butler advised Thurman during their conversation that he would be sending a letter to attorney Holmes by fax, and that the letter contained information about G.S. and his cooperation in the Kelly murder investigation. By prior arrangement, Thurman was the only employee in the office during their conversation. The letter, in fact, was merely a test to determine whether Thurman would leak the contents of the letter to Defendant Robinson or other unknown persons.

Subsequently, on July 25, 2010, Kelly contacted his brother Terrell Gray (DN 67, Ex. 14). During their recorded phone conversation, Terrell advised Kelly that he wanted to show Kelly " this paper" about Greg. ( Id. ). Fifteen minutes later, Kelly again spoke with Terrell using Tiffany Roberts as an intermediary to connect the two men (DN 67, Ex. 15). Terrell at the outset of their conversation read aloud the entire letter of Sgt. Butler to Kelly ( Id. at 1-2). Later that same evening, Kelly and Robinson, again using Tiffany Roberts as an intermediary, spoke in a recorded phone conversation. During the exchange, Kelly asked Roberts to ask Defendant Robinson if he had talked to Tanner (DN 67, Ex. 17). Robinson advised Roberts, and she related to Kelly, that Robinson had given Tanner a " piece of paper a couple of days ago" .... ( Id. at 2). The Government maintains that the " piece of paper" referred to in this conversation is Sgt. Butler's July 22, 2010 letter to Kate Holmes.

Armed with this information from the recorded jailhouse phone calls, law enforcement officials obtained a search warrant for Thurman and Robinson's Belgravia apartment, as well as their separate automobiles. On August 3, 2010, ATF agents executed the search warrant. The agents found in the glove box of Thurman's Lexus automobile a copy of G.S.'s confidential cooperation agreement. Later that same afternoon, a criminal complaint was issued against Shanion Thurman for her alleged violation of 18 U.S.C. § 1512(a)(2)(A) & 2 for aiding and abetting witness tampering (DN 1). A separate criminal complaint was issued against James Robinson the same day on the same charge of aiding and abetting witness tampering (DN 1). An indictment against both individuals on these charges was returned approximately two weeks later (DN 10).

The United States has moved the Court now to determine the admissibility of 16 recorded telephone conversations, or portions thereof, involving Ricky Kelly and the other individuals identified above (DN 36, 46). Defendants Robinson and Thurman have each filed a response (DN 53, 54, 55). The United States has filed a reply and addendum (DN 58, 60). Oral argument was initially held before the Magistrate Judge on December 22, 2011 (DN 65).[1] On order of the Magistrate Judge, the United States filed a supplemental motion to admit the recorded calls, along with the testimony of a confidential source (C.S. 1) concerning a series of statements made by Defendant Robinson to C.S. 1 while both men were housed in the Louisville Metro Corrections Jail (DN 67). Defendant

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Thurman and Robinson have filed responses to the supplemental motion (DN 76, 77). A second hearing was held on Monday, March 19, 2012 (DN 72) [2] with a third and final hearing held on April 9, 2012.[3] Accordingly, the matter is now ripe for consideration.

CONCLUSIONS OF LAW

At issue are two types of evidence that the Government seeks to have admitted at trial. The first category of evidence includes some 16 recorded jailhouse phone calls, or portions of calls, all of which involve Ricky Kelly. The second category of evidence centers on the anticipated testimony of a cooperating source, designated C.S. 1, who the Government will offer at trial to testify about a series of incriminating statements made by James Robinson following his arrest in August of 2010. The Government has offered various theories under the Federal Rules of Evidence to justify the admission of these two categories. See Federal Rules of Evidence (FRE) 402, 801(d)(2), 802, 804(b)(3) and 807. Beyond questions of evidence, the parties also address constitutional issues that arise from the confrontation clause of the Sixth Amendment as interpreted by Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and its progeny. See, Melendez-Diaz v. Mass., 557 U.S. 305, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Thus, the admission or the non-admission of the disputed conversations presents complex challenges, not only of law and fact, but organizational ones as well given the sheer magnitude of the statements put at issue.

The procedural posture of this dispute cannot be ignored either. Trial of the charges against Robinson and Thurman is months away. No witnesses have been sworn or testimony taken. The nature and the order of proof is far from resolved. At this point, it is not known who will testify or who will refuse to do so, or be otherwise unavailable to testify. The result is that this report cannot avoid reliance on certain assumptions about the nature of the evidence at trial and the individuals that will testify or be unavailable to do so. To the extent that matters at trial diverge materially from these assumptions, the result of the trial proceedings may well deviate from the contents of this recommendation. With this caveat in mind, the Magistrate Judge turns to the first group of statements that the Government discusses in its supplemental motion to admit recorded calls (DN 67).[4]

a. Defendant Robinson's Own Statements

The first group of statements to be discussed are those statements that include the out-of-court statements of Defendant Robinson. These statements may be found in exhibits 4, 5, 8A and 8B, 12 and 16, which are also identified by the corresponding letters " d" , " e" , " g" , " k" and " o." All of these disputed statements are recorded jailhouse conversations with nonparty Ricky Kelly. It is presently anticipated

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that neither Defendant Robinson nor Kelly will testify at trial, but will elect to assert their individual Fifth Amendment privilege if called. This initial group of statements also includes those out-of-court, post-arrest statements allegedly made by Defendant Robinson to C.S. 1, the earlier mentioned jailhouse informant, while the two men were incarcerated together at the Louisville Metro Corrections Jail.

The United States argues that Robinson's own out-of-court statements are not only relevant to the charged offense within the definition of FRE 401, [5] but also are not subject to exclusion under the general prohibition of the hearsay rule, FRE 802.[6] Citing United States v. Matlock, 415 U.S. 164, 172 n. 8, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) and FRE 801(d)(2)(A),[7] the Government maintains that Defendant Robinson's own statements are not hearsay when offered against him at trial. Instead, they fall within the category formerly known as " admissions by a party opponent," which is now referred to under the cited rule as being " an opposing party's statement." Because Defendant Robinson is a party opponent to the Government in its prosecution of him and his co-defendant Thurman, the United States concludes that the admission at trial of all of Defendant Thurman's statements to Ricky Kelly or to C.S. 1 is entirely proper and does not run afoul of the prohibition against the admission of hearsay evidence under FRE 802.

As the Sixth Circuit explained in United States v. McDaniel, 398 F.3d 540, 545 (6th Cir.2005),

Not all out-of-court statements qualify as hearsay, however. For instance, Federal Rule of Evidence 801(d)(2) excludes admissions by a party-opponent (which are offered against the party) from the definition of hearsay because the adversarial process allows the party-declarant to rebut his or her own admissions by testifying at trial. See, Fed.R.Evid. 802(d)(2) & Advisory Committee's Notes (" Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule." )

Id.

Admission of a party opponent's statement under FRE 801(d)(2)(A) is not dependent on whether the challenged out-of-court statement is inculpatory or exculpatory. McDaniel, 398 F.3d at 545 (citing United States v. Turner, 995 F.2d 1357, 1363 (6th Cir.), cert. denied, 510 U.S. 904, 114 S.Ct. 282, 126 L.Ed.2d 232 (1993) (" On its face, Rule 801(d)(2) does not limit an admission to a statement against interest.

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Furthermore, this court has refused to place such a limited construction on the scope of an admission." )). See also, United States v. Slone, 833 F.2d 595, 601 (6th Cir.1987) (exculpatory grand jury testimony given by defendant was admissible under Rule 801(d)(2)).

All that is required for a party opponent's out-of-court statement to be admitted under FRE 801(d)(2)(A) is that the statement " include some specific fact which tends to establish guilt or some element of the offense." Turner, 995 F.2d at 1363 (citing Slone, 833 F.2d at 601). Indeed, the primary reason for the amendment of FRE 801(d)(2) in 2011, to replace the term " admissions" with the term " statements" was due to the fact that " the term ‘ admissions' is confusing because not all statements covered by the exclusion are admissions in the colloquial sense— a statement can be within the exclusion even if it ‘ admitted’ nothing and was not against the party's interest when made." 30B Michael H. Graham, Federal Practice & Procedure, Evidence, Chap. 9B (Thomson 2011). Any contrary interpretation of FRE 801(d)(2) that would attempt to distinguish between exculpatory and inculpatory out-of-court statements by a party opponent would merely confuse the distinctions between FRE 801(d)(2) with FRE 804(b)(3), which creates an exception to the rule against hearsay for statements against interest made by an unavailable declarant.[8]

The application of FRE 801(d)(2)(A) is not unbounded, however. The rule may only be used to support the admission of an out-of-court statement when such statement is offered against that party. See, Stalbosky v. Belew, 205 F.3d 890, 894 (6th Cir.2000) (" Under Rule 801(d)(2)(A), a party's statement is admissible as non-hearsay only if it is offered against that party." ); see also, United States v. Maliszewski, 161 F.3d 992, 1008 (6th Cir.1998), cert. denied; Villareal v. United States, 525 U.S. 1183, 119 S.Ct. 1126, 143 L.Ed.2d 120 (1999) (Rule 801(d)(2)(A) could not be relied upon to introduce the statement of a former defendant who had pled guilty and was no longer a party at the time of trial).

With the above principles of evidence law in mind, the Court now turns to examine each of the out-of-court statements of Defendant Robinson to determine whether they satisfy the requirements of Rule 801(d)(2)(A), or if the nature of the statements implicates any additional rule of evidence or constitutional concerns.

Exhibits 4 and 5

The first statements of Defendant Robinson that the Government seeks to introduce via FRE 801(d)(2)(A) are found at exhibits 4 and 5, which are alphabetically designated and referred to by the parties in their motion papers as " d." These two exhibits are excerpts of a recorded phone conversation that occurred on Jan. 28, 2010, during a collect phone call from Ricky Kelly at the Green River Correctional

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Complex (GRCC) to James Robinson at 7:39 p.m. (DN 67, Ex. 4, 5).

During the first conversation between the two men, contained in exhibit 4, Robinson complains to Kelly that " Gene" keeps contacting him (DN 67, Ex. 4, pp. 1-2). Kelly advises Robinson during this conversation that " the homies" believe that Robinson has access to or possession of Kelly's property such as money and automobiles (DN 67, Ex. 5, p. 1). Kelly complains further that law enforcement agencies, referred to as " the alphabet boys," believe that he has money and property hidden (DN 67, Ex. 5, p. 2). During their conversation, Robinson assures Kelly that Kelly is the only person that Robinson will " mess with." (DN 67, Ex. 4, p. 2). The two men then discuss whether Kelly still has a building on 42nd Street (DN 67, Ex. 4, p. 3). Kelly acknowledges that he still has the building and advises Robinson that he has denied, when asked by " Tanner," that he gave any property or money to " Jim." (Id. at 4). Near the conclusion of the first excerpt of their conversation, Robinson affirms to Kelly that Kelly is his best friend since Robinson was five years old and that he has no others (DN 67, Ex. 4, p. 4).

The Court first finds that the substance of exhibits 4 and 5, designed " d," are clearly relevant to the alleged charge of attempt to tamper with potential witness G.S. under FRE 401. The statements of Robinson establish a deep, lifelong relationship between the two men, a relationship that apparently began when Robinson was no more than five years old. The depth of this relationship is further confirmed by Robinson's statement denying that he has any other such friends as Kelly. Such a lifelong, close relationship is offered by the Government to explain why Robinson would put himself at risk to obtain sensitive information such as the confidential cooperation agreement and would immediately convey that information to Kelly. Absent the introduction of such evidence at trial, the Government would have no explanation for the jury as to why Robinson did what he allegedly did in April of 2010. See gen., United States v. Roe, 670 F.2d 956, 971 (11th Cir.1982), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982) (motive of defrauded investors to invest in corporation was relevant to establish their reliance on the misrepresentations by corporate officers); United States v. Talavera, 668 F.2d 625, 630-31 (1st Cir.1982), cert. denied, Pena v. United States, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982) (evidence of heroin transaction involving one codefendant, where both were charged only with separate cocaine transaction, was admissible to establish the close relationship between the two defendants).

Both Defendant Robinson and Defendant Thurman argue repeatedly with respect to various out-of-court statements that implicate their respective interests that any minimal probative value of such out-of-court statements as those detailed above is far outweighed under FRE 403 by the unfairly prejudicial nature of the challenged statements. The Defendants maintain that the challenged statements are being used by the Government simply to interject the presence of Ricky Kelly at trial due to his alleged involvement in numerous drug-related murders such as the one involving Lajuante Jackson, now prosecuted in United States v. Kelly, 3:11-CR-33-H. In fact, Thurman argues that Kelly, who is not anticipated to testify at trial, is the invisible " 2000 pound gorilla" in the courtroom. (DN 77, p. 19). Robinson and Thurman maintain that the jury simply will not be able to separate any alleged involvement of Kelly in various murders from the far less serious witness tampering charge prosecuted against them.

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It is now well settled that " even relevant evidence may constitutionally be excluded ‘ if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ " Alley v. Bell, 307 F.3d 380, 396 (6th Cir.2002) (quoting Sanders v. Freeman, 221 F.3d 846, 859 (6th Cir.2000) (quoting FRE 403)). Evidence which may be admissible under one rule of the Rules of Evidence, i.e., Rule 404(b), must still be shown to have a " probative value" that is " not substantially outweighed by the danger of unfair prejudice under Rule 403." United States v. Dunn, 805 F.2d 1275, 1280 (6th Cir.1986). Thus, merely because the content of exhibits 4 and 5 may be relevant within the meaning of FRE 401, the trial court could yet exclude them in the exercise of its discretion under FRE 403 if they are found to be unduly prejudicial. See, United States v. Gallo, 763 F.2d 1504, 1525 n. 32 (6th Cir.1985) (" Clearly in reviewing Rule 403 decisions we must apply an ‘ abuse of discretion’ standard." ). See also, United States v. Reynolds, 762 F.2d 489, 494 (6th Cir.1985) (" The admission or exclusion of evidence under Rule 403 is within the sound discretion of the trial court." ) (admitting into evidence a conversation that referred to possible future criminal activity was not an abuse of discretion where the conversation was evidence of motive, scheme and intent).

Here, the Government would be hard pressed to bring a prosecution without some mention of Kelly and introduction of the challenged conversations between Robinson and Kelly. The gravamen of the case is that due to Robinson's lifelong friendship with Kelly, and his access to confidential documents through his girlfriend, Thurman, he obtained the confidential cooperation agreement of a potential witness against Kelly, G. S., and conveyed such information to Kelly in an effort to thwart the ability of G.S. to provide testimony against Kelly. Kelly, by definition, therefore must be included in the Government's proof at trial.

To what extent the Government may dwell upon Kelly and any allegations of Kelly's own criminal activity, including alleged homicides, is a matter that simply cannot be resolved until the trial. In other words, were the Government to attempt to introduce into evidence significant details related to the alleged murders by Kelly, including the murder of Lajuante Jackson, then the trial court in the sound exercise of its discretion, might at some point cut short the Government's efforts. Certainly, no such efforts have been made to date, nor do any of the out-of-court statements sought to be introduced pursuant to FRE 801(d)(2)(A) involve any explicit discussion of Kelly's own alleged criminal activity, other than perhaps Kelly's ongoing, vague denials of any such involvement. Nonetheless, given the intended testimony of G.S. against Kelly in Case No. 3:11-CR-33-H, repeated references to Kelly, and Kelly's own statements in the recorded conversations involving Robinson are unavoidable and, more importantly, not presently excludable under Rule 403.

A helpful Sixth Circuit decision that involves Rule 801(b)(2)(A) is United States v. Henderson, 626 F.3d 326, 337 (6th Cir.2010). In Henderson, an Ohio defendant was charged with the murder of two witnesses in retaliation for their providing information and/or testimony that led to the defendant's earlier conviction for bank robbery. Henderson, 626 F.3d at 331. At trial on the murder charges, the United States introduced prior out-of-court statements of both of the deceased victims, along with certain recorded prison telephone conversations involving the defendant, Thomas Henderson, and members of his family, after a finding by the trial court that the prior statements of the deceased witnesses, Bass and Washington, were admissible

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non-testimonial statements under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The court then turned its focus on the defendant's claim of ineffective assistance of trial counsel based on the failure of trial counsel to object to the introduction of the recorded prison phone calls. During these conversations, the defendant discussed with his family attempts by him to influence witnesses in the murder case, along with his feelings about the death of the two victims. Henderson, 626 F.3d at 337. The Sixth Circuit concluded that the failure of trial counsel to object to the introduction of the statements was not a deficient performance under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so holding, the court explained:

Counsel's failure to object was not deficient because any hearsay objection would have been overruled. The statements made by Henderson during the conversations were non-hearsay admissions under Federal Rule of Evidence 801(b)(2)(A) and the statements made by others were not admitted to show the truth of the matters asserted, but to prove the context for Henderson's admissions.

Id. at 337 (citing United States v. Jacob, 377 F.3d 573, 581 (6th Cir.2004)); United States v. Davis, 170 F.3d 617, 627 (6th Cir.1999).

The same is true with respect to exhibits 4 and 5. The out-of-court statements of Defendant Robinson and the responses of non-party Kelly are both relevant and admissible under the rules of evidence cited above. Such statements do not appear to be unduly prejudicial at this point based on the anticipated nature of the proof to be offered at trial.

The sole question remaining with regard to exhibits 4 and 5, designated " d" by the parties, is whether introduction of such out-of-court statements raises constitutional issues under the confrontation clause of the Sixth Amendment. Both Robinson and Thurman question whether the recorded jailhouse conversations are " testimonial" under the standard of Crawford. See gen., Williams v. Illinois, __ U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89(2012). If so, they cannot be introduced at trial by the Government when the declarant is unavailable unless the Defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354. See, United States v. Johnson, 581 F.3d 320, 323-28 (6th Cir.2009), cert. denied, __ U.S. __, 130 S.Ct. 3409, 177 L.Ed.2d 326 (2010) (discussing Crawford ). The United States argues in response that the nature of the statements made by Kelly and Robinson, informal phone conversations that occurred between close friends, simply are not the type of statements that fall with the " core class of testimonial statements" first mentioned in Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354.

Unfortunately, the Crawford decision did not craft a specific definition of what type of statement is a " testimonial statement" for the purpose of the confrontation clause.[9]Id. at 51-52, 124 S.Ct. 1354. The decision instead provides certain non-exhaustive examples of the core class, which the Court held includes (1) ex parte, in-court testimony or its functional equivalent, (2) extra-judicial statements contained in formalized testimonial materials (affidavits, depositions, prior ...


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