UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE UNITED STATES OF AMERICA, Plaintiff, v. RICHARD R. BAUMGARTNER, Defendant. ) ) ) ) ) ) ) ) ) NO. 3:12-CR-60 JUDGE GREER ______________________________________________________________________________ Trial Brief of the United States ______________________________________________________________________________ The United States respectfully submits this Trial Brief to provide its position on several legal issues that could potentially arise during trial. Those issues include the introduction of nonhearsay statements and what it means for a defendant to take an affirmative step to conceal under the fourth element of 18 U.S.C. ? 4. I. Statements that are offered for a purpose other than the truth of the matter asserted do not constitute hearsay. During the course of the trial, one or more witnesses will testify regarding out-of-court statements. Those statements will not constitute hearsay because they will be offered for a purpose other than their truth--i.e., to show the statement was made, to show knowledge, to show the statement's effect on the listener, or to show the falsity of the statements. As the Court is well aware, hearsay is an out-of-court statement that is "offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). An out-of-court statement that is offered to prove something other than the truth of the matter asserted is admissible because it "fall[]s outside of Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 1 of 12 PageID #: 976 the definition of hearsay." United States v. Talley, 164 F.3d 989, 998-99 (6th Cir. 1999). A. Statements offered to show knowledge are not hearsay. One of the most common non-hearsay purposes for which statements are offered is to prove the listener's knowledge. See United States v. Johnson, 71 F.3d 539, 543 (6th Cir. 1995). In Johnson, a physician was charged with illegally prescribing narcotics. Id. A former employee testified that another physician told the defendant that "he was going to have to stop writing prescriptions like that." Id. The Johnson Court affirmed, holding that the statement was admissible as non-hearsay because it was offered to show the defendant's "knowledge that he was prescribing medication without a legitimate medical purpose," which was an "element of the offense." Id. In fact, the Sixth Circuit has affirmed the admission of statements that were offered in a misprision case to establish the defendant's knowledge of the underlying felony. See United States v. Boyd, 640 F.3d 657, 663-64 (6th Cir. 2011). The defendant in Boyd was charged with misprision of a felony and being an accessory after the fact to a carjacking that resulted in death. Id. at 661. The district court held that statements the carjacker made to the defendant were admissible to show the defendant's knowledge of the carjacking, which was an essential element of the misprision and accessory after the fact charges. Id. at 663-64. The Sixth Circuit agreed that the statements "were properly admitted as non-hearsay offered to prove [the defendant's] knowledge of the carjacking and murders." Id. at 664. The Boyd Court further explained that "[s]tatements offered to prove the listener's knowledge are not hearsay." Id. The current case, like Boyd, requires the United States to prove Defendant's knowledge of the underlying felony. Thus, any statements that are offered to establish Defendant's knowledge of Deena Castleman's involvement in a drug conspiracy should be admitted as non2 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 2 of 12 PageID #: 977 hearsay. B. Statements offered to show that they were made do not constitute hearsay. If a statement is offered "as evidence of the bare fact that it was said, rather than for its truth, it is not hearsay." United States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009). In Rodriguez-Lopez, the district court excluded evidence showing that shortly after the defendant was arrested ten people called his cell phone requesting heroin from the police officer who answered the phone pretending to be the defendant. Id. The United States appealed, and the Sixth Circuit reversed because the statements requesting heroin were not hearsay. Id. According to the Rodriguez-Lopez Court, if the statements were "questions or commands, they could not . . . be offered for their truth because they would not be assertive speech at all." Id. The Sixth Circuit further explained that "[e]ven if the statements were assertions, the government offers them, not for their truth, but as evidence of the fact that they were made." Id. at 315; see also United States v. White, 87 F. App'x 566, 569 (6th Cir. 2004) ("A statement offered to show that the statement was made, rather than to establish the truth of the statement, is not hearsay."); Anderson v. United States, 417 U.S. 211, 221 n.8 (1974) ("Of course, evidence is not hearsay when it is used only to prove that a prior statement was made and not to prove the truth of the statement."). In the current case, the United States may introduce statements to show that the statements were made regardless of their truth. As the cases above demonstrate, such statements should be admitted as non-hearsay. 3 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 3 of 12 PageID #: 978 C. Statements offered to show the effect on the listener or to explain the listener's future conduct are not hearsay. Likewise, "statements, which evidence the effect of the statements on the mind of the listener are not hearsay." United States v. Lacey, 1995 WL 258142, at *7 (6th Cir. May 2, 1995) (internal quotations and alterations omitted). In other words, "[t]he hearsay rule does not pertain to statements adduced merely to show . . . that they had some effect on the future actions of a listener." United States v. Castro-Lara, 970 F.2d 976, 981 (1st Cir. 1992) (holding that testimony about a tip was admissible as non-hearsay because it was offered to show why agents engaged in certain investigative steps); see also United States v. Pugh, 273 F. App'x 449, 456 (6th Cir. 2008) (affirming admission of statement as non-hearsay because it was offered to show its effect on the listener and to explain the detective's "steps in the investigation"); United States v. Bachynsky, 415 F. App'x 167, 175 (11th Cir. 2011) (recognizing that the "hearsay bar does not pertain to statements used to show future effect upon the listener"). Along the same lines, statements are not hearsay if "they are not declarations of an act, but instead, more akin to instructions to do something." United States v. Crim, 451 F. App'x 196, 205 (3d Cir. 2011) (holding that notes advising clients how to create false liens were not hearsay because they were offered "to prove the fact that certain instructions had been given"). And "[i]nstructions to an individual to do something are not hearsay because they are not declarations of fact and therefore are not capable of being true or false." United States v. Reilly, 33 F.3d 1396, 1410 (3d Cir. 1994) (internal quotations and alterations omitted) (citing Graham, Federal Prac. & Proc.: Evidence ? 6705 at 409). Statements are also not hearsay if they amount to suggestions or orders. United States v. Gibson, 675 F.2d 825, 834 (6th Cir. 1982). The reason for that is "a suggestion or an order is not subject to verification at all because such utterances do 4 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 4 of 12 PageID #: 979 not assert facts." Id. In the current case, statements may be introduced for the purpose of explaining why the listener of the statements engaged in certain future conduct. There may also be testimony regarding instructions or orders that were provided to witnesses. Because neither statements offered to show the effect on the listen nor instructions to do something constitute hearsay, any such statements should be admitted. D. Statements that are offered to show their falsity are not hearsay. If a statement is offered to prove its falsity as opposed to its truth, there is no hearsay issue. United States v. Hathaway, 798 F.2d 902, 905 (6th Cir. 1986). That is so because "[w]hen statements are offered to prove the falsity of the matter asserted, there is no need to assess the credibility of the declarant." Id.; see also United States v. Ivory, 1989 WL 56587, at *2 (6th Cir. May 31, 1989) (holding that false statements on ATF form were not hearsay because "[t]he forms were introduced, not to show the truth . . ., but rather to show the falsity thereof"). There may be statements offered in this case for the purpose of showing that they were false. Such statements should be admitted as non-hearsay. II. There will not be a Confrontation Clause issue with any of the statements introduced by the United States. None of the statements that will be introduced by the United States will pose a Confrontation Clause issue. That is true for two reasons. First, the Confrontation Clause is not triggered by statements that are offered for a purpose other than their truth. As the Supreme Court noted in Crawford, the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." Crawford v. Washington, 541 U.S. 36, 59, n.9 (2004); see also Boyd, 640 F.3d at 665 (finding no 5 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 5 of 12 PageID #: 980 Confrontation Clause issue because the statements "were offered to prove [the defendant's] knowledge, rather than the truth of the matter asserted"). Second, even if the statements were offered for their truth the Confrontation Clause would not be triggered because the statements are non-testimonial. Statements that are made to friends and coconspirators are not testimonial because a reasonable person "would not have anticipated the use of the statements in a criminal proceeding." Boyd, 640 F.3d at 665; see also United States v. McCullough, 150 F. App'x 507, 509 (6th Cir. 2005) (holding that statements made to a "companion" were not testimonial); Crawford, 541 U.S. at 51 (stating that 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"). Accordingly, there will be no Confrontation Clause issue with any of the statements introduced by the United States in this case. III. An overview of the law regarding what constitutes an affirmative step to conceal for purposes of the fourth element of 18 U.S.C. ? 4. In order to convict Defendant of committing misprision of a felony under 18 U.S.C. ? 4, the United States must prove four elements: (1) the federal felony of conspiracy to distribute controlled substances was committed by Deena Castleman; (2) Defendant had knowledge of that fact; (3) Defendant knowingly failed to notify authorities as soon as possible that the crime had been committed; and (4) Defendant knowingly took an affirmative step to conceal Deena Castleman's commission of the federal felony of conspiracy to distribute controlled substances. Although the first three elements are fairly self-explanatory, the affirmative step to conceal element is more amorphous. It is, therefore, important to look at the case law regarding the affirmative step to conceal element. 6 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 6 of 12 PageID #: 981 First, as the Court has recognized in its preliminary instructions, the United States is required to prove Defendant took an affirmative step to conceal a federal crime. In other words, the United States must show that Defendant took "some positive act designed to conceal." United States v. Davila, 698 F.2d 715, 717 (5th Cir. 1983). The statute does not define the term "conceal," but it commonly means "to keep secret or hidden." Oxford Universal Dictionary (1981). In essence, 18 U.S.C. ? 4 is violated if a defendant gives "a false impression" that no criminal activity has occurred. Patel v. Mukasey, 526 F.3d 800, 803 (5th Cir. 2008) (finding that misprision qualifies as a crime of moral turpitude for purposes of immigration law). So, what the United States must prove to satisfy the fourth element in this case is that Defendant took "some positive act" that was designed to create a "false impression" or "to keep secret or hidden" the fact that Deena Castleman was involved in a drug conspiracy. There are a seemingly endless variety of ways that a person could take an affirmative step to conceal another's felony. One of those ways is by making a false statement. See United States v. Wesley, 1997 WL 242335, at *2 (9th Cir. May 18, 1997). In Wesley, the district court specifically instructed the jury that "[m]aking an untruthful statement to conceal the commission of a crime would be such an affirmative step." Id. After being convicted of misprision for lying to an agent, the defendant argued that the district court improperly instructed the jury. Id. The Ninth Circuit rejected that argument because the district court's instruction was "simply a correct statement of the law." Id.1 Numerous courts have found sufficient evidence to convict a defendant of misprision where the affirmative step to conceal was a false statement. See United States v. Pittman, 527 1 The United States has separately requested that the Court issue a jury instruction similar to the one sanctioned by the Ninth Circuit in Wesley. (See R. 114, Proposed Jury Instructions at 2-3.) 7 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 7 of 12 PageID #: 982 F.2d 444, 445 (4th Cir. 1975). In Pittman, the defendant made an untruthful statement to authorities regarding her husband's role in a bank robbery. Id. She was convicted of misprision, and the Fourth Circuit found sufficient evidence to affirm the conviction. Id. Another example is the Ninth Circuit's decision in United States v. Hodges, 566 F.2d 674, 675 (9th Cir. 1977). The defendant in Hodges had seen his friend with a young girl who had been kidnapped. Id. Nonetheless, the defendant told the FBI that he had not seen the girl and did not know how to contact his friend. Id. After being convicted of misprision, the defendant argued that there was insufficient evidence to show that he took an affirmative step to conceal the kidnapping. Id. The Hodges court rejected that argument because "the giving of an untruthful statement to authorities is a sufficient act of concealment to sustain a conviction for misprision of felony." Id.; see also United States v. Stuard, 566 F.2d 1, 1 (6th Cir. 1977) (affirming misprision conviction where the defendants provided false information to the authorities regarding theft of liquor). Along the same lines is the Fifth Circuit's decision in United States v. BarksdaleContreras, 972 F.2d 111, 115 (5th Cir. 1992). There, one of the defendants was convicted of misprision because he concealed a kidnapping. Id. at 114. The Fifth Circuit affirmed his conviction because "[w]e find evidence of concealment of the crime when the appellants made false statements to police while participating in the kidnapping." Id. at 115; see also United States v. Weekley, 389 F. Supp. 2d 1293, 1301 (S.D. Ala. 2005) (stating in context of Fifth Amendment challenge that "Weekley's violation of 18 U.S.C. ? 4 was complete the moment she lied to Agent Farmer about her knowledge of the bank robbery"). In another case, a court held that the concealment element of misprision could be proven by showing that the defendant "concealed the identity of [the principal] from the landlord of the hotel by registering and introducing him under a fictitious name. Thus the defendant concealed 8 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 8 of 12 PageID #: 983 the information from the landlord." United States v. Thornton, 178 F. Supp. 42, 44 (E.D.N.Y. 1959) (rejecting challenge to misprision indictment). It has also been held that a defendant takes an affirmative step to conceal by lying to employees in an attempt to ensure that they do not discover a scheme to defraud. United States v. Walkes, 410 F. App'x 800, 803-04 (5th Cir. 2011) (finding factual basis sufficient for guilty plea to 18 U.S.C. ? 4 where the defendant falsely told employees that clinic was billing in compliance with Medicare rules). Administering lie detector tests to coconspirators to determine who had provided information to the police is another way to commit misprision because "[t]he administration of the tests, in the aura of intimidation, concealed for the time being the felonies committed." United States v. Daddano, 432 F.2d 1119, 1124 (7th Cir. 1970). It has also been held that a defendant takes an affirmative step to conceal the federal felony of distributing child pornography if he agrees to be billed by a third-party website instead of by a child pornography website. United States v. Robinson, 344 F. App'x 990, 991 (5th Cir. 2009). The Fifth Circuit explained that the factual basis was sufficient to establish concealment because: "By agreeing to be billed by a third-party, which necessarily obscured the illicit nature of the transaction, [the defendant] gave the false impression that the transaction was innocuous and concealed the underlying felony of distribution of child pornography." Id. As the elements and the cases above make clear, the United States is required to prove that Defendant took an affirmative step to conceal. There is no requirement that Defendant was ultimately successful in concealing the felony. Indeed, several courts have held that it is irrelevant whether the defendant's conduct resulted in the authorities not knowing about the crime. See Lancey v. United States, 356 F.2d 407, 409 (9th Cir. 1966). In Lancey, the defendant argued that his misprision conviction was invalid because the police already knew about the 9 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 9 of 12 PageID #: 984 underlying crime and they knew who committed it. Id. The Ninth Circuit rejected that argument because "whether the government did or did not know of the crime or who the perpetrator was is unimportant. Neither one is mentioned as an essential element of the proof of the crime of misprision." Id. 409-10; see also United States v. Sanchez, 47 M.J. 794, 796 (N.M. Ct. Crim. App. 1998) (affirming conviction for misprision of felony under Uniform Code of Military Justice and explaining that "even if authorities are already aware of the underlying crime, misprision may still lie"); Daddano, 432 F.2d at 1124 ("It has been held that it is unimportant whether the government did or did not know of the principal crime or who the perpetrator was before the person charged with misprision took affirmative steps to conceal the crime."). There is also no materiality requirement in 18 U.S.C. ? 4. United States v. Clemons, 1998 WL 833770, at *3 (6th Cir. Nov. 19, 1998). In Clemons, the defendant was a county sheriff who made false statements to the FBI about his knowledge of a marijuana manufacturing operation. Id. at *1-*2. The defendant was charged and convicted of misprision and making a false statement under 18 U.S.C. ? 1001. Id. at *2. He argued that the district court should have issued a materiality instruction to the jury with regard to the misprision charge. Id. at *2-*3. According to the defendant, the jury should have been instructed that misprision required the government to prove that the statement to the FBI "could have influenced the agency's decisions or activities." Id. The Sixth Circuit found no merit to that argument because materiality is not "an element under a natural reading of the full text of 18 U.S.C. ? 4." Id. at *3. What all of the cases cited above establish is that there is no formula for what constitutes an affirmative step to conceal. It is highly fact and context dependent and must account for the nature and circumstances involved in a particular case. The focus, however, is on whether the defendant took a step that was designed to create a false impression about, or to keep secret the 10 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 10 of 12 PageID #: 985 fact, that another person was engaging in a federal crime. In the current case, the United States will show that Defendant took seven affirmative steps to conceal a drug conspiracy involving Deena Castleman. More specifically, he affirmatively reached out to specific people who had involvement with Deena Castleman, he made false statements to them, and those false statements were designed to create a false impression and keep secret the fact that Deena Castleman was involved a drug conspiracy. Conclusion The discussion provided above addresses some of the issues the government anticipates possibly arising at trial. In the event other issues arise, the government would respectfully request permission to provide additional argument as may be necessary to assist the Court. Respectfully submitted, WILLIAM C. KILLIAN United States Attorney By: s/ Zachary C. Bolitho David P. Lewen, Jr. Zachary C. Bolitho Assistant United States Attorneys 800 Market St., Suite 211 Knoxville, Tennessee 37902 (865) 545-4167 11 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 11 of 12 PageID #: 986 Certificate of Service I certify that on October 21, 2012, a copy of the foregoing was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. s/ Zachary C. Bolitho Zachary C. Bolitho Assistant United States Attorney 12 Case 3:12-cr-00060 Document 127 Filed 10/21/12 Page 12 of 12 PageID #: 987