On Appeal from the District Court for the Virgin Islands (D.C. No. 04-cr-00005 District Judge: Honorable Raymond L. Finch
Before: Sloviter, Fuentes, and Greenberg, Circuit
The opinion of the court was delivered by: Sloviter, Circuit Judge
In this interlocutory appeal filed by the United States we must interpret for the first time for this court the meaning of "testimonial evidence" as used in the Supreme Court's recent decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and determine its application to legally obtained wiretap evidence and evidence of conversations between some of the Defendants and a murdered confidential informant ("CI"). The District Court for the Virgin Islands,*fn1 in ruling on the Government's motion in limine, held that because of Crawford such evidence could not be introduced at trial. The United States appeals. For the reasons explained below, we will reverse the decision of the District Court, and will remand in order to afford the District Court the opportunity to analyze the disputed evidence under the proper standards.*fn2
On April 11, 2003, a federal grand jury sitting in the United States Virgin Islands returned a multi-count indictment charging Defendants/Appellees Andy Antoine, Jacquelyn Carr, Rafael Cintron, Rudolph Clarke, Elroy Dowe, Daniel Fleming, Craig M. Hendricks, Ranney Laronde, and Russell Robinson with one or more counts of conspiracy, narcotics possession and distribution, and money laundering.*fn3 According to the indictment, Hendricks, who is the owner of a facially-legitimate marine services business, was the leader of a large-scale narcotics-trafficking organization, which prior to the arrests of the Defendants, imported and distributed cocaine and marijuana throughout the United States Virgin Islands and elsewhere.
On January 12, 2004, the United States filed a motion in limine seeking pretrial rulings on the admissibility of, inter alia: (1) electronic surveillance tapes obtained pursuant to a court authorized wiretap issued under 18 U.S.C. § 2510 et seq. (hereinafter the "Title III recordings"); and (2) recordings of conversations between confidential informant Hector Rivera ("CI Rivera") and various of the Defendants.*fn4 The United States maintained that the recordings and conversations at issue qualified either as admissions of a party opponent, see Fed. R. Evid. 801(d)(2)(A), coconspirator statements, see Fed. R. Evid. 801(d)(2)(E), statements against interest, see Fed. R. Evid. 804(b)(3), or as statements covered by the residual hearsay exception, see Fed. R. Evid. 807, and thus were admissible.
In a Memorandum Opinion dated April 27, 2004, the District Court ruled that Crawford, in which the Supreme Court interpreted the Confrontation Clause of the Sixth Amendment of the United States Constitution, "has superceded the Federal Rules of Evidence in barring all out-of-court statements made by an unavailable witness whom a defendant has not had the chance to cross-examine, with exceptions only for dying declarations and forfeiture for wrongdoing." J.A. at 38.*fn5 The District Court noted that the Defendants never had an opportunity to cross-examine CI Rivera and that due to CI Rivera's death, he would not be available to testify at trial. The District Court therefore ruled that the United States could not introduce the conversations involving CI Rivera at trial.
Similarly, regarding the Title III recordings, the District Court noted that the United States had "not shown that any statement recorded on the wiretap was made by a person who is no longer available and whom Defendants have had an opportunity to cross-examine." J.A. at 39-40. Thus, it ruled that the United States could not introduce at trial any statements intercepted in the Title III wiretaps except those "statements made by a witness who testifies at trial." J.A. at 40.
The United States thereafter filed a Motion for Reconsideration. In its motion, the Government noted that the rule announced in Crawford is only applicable to so-called "testimonial" hearsay statements. J.A. at 48 (citing Crawford, 541 U.S. at __, 124 S. Ct. at 1374). It follows, the Government argued, that "'non-testimonial hearsay statements may still be admitted as evidence against an accused... if [they] satisf[y] both prongs of the [Ohio v.] Roberts[, 448 U.S. 56 (1980),] test.'" J.A. at 47 (quoting State v. Rivera, 844 A.2d 191, 201 (Conn. 2004)). The United States urged that none of the evidence at issue fell within the definition of testimonial hearsay; it contended that therefore the evidence was not subject to the rule of Crawford.
By Order dated May 11, 2004, the District Court denied the United States' Motion for Reconsideration. Although it agreed with the Government that the Crawford holding is inapplicable to non-testimonial statements, it found that the evidence at issue qualified as testimonial statements and thus fell within the rule of Crawford. The United States thereafter lodged this timely interlocutory appeal. See generally 18 U.S.C. § 3731 ("An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence... not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment....").
The District Court's decision to exclude the evidence at issue turned on its application of the Sixth Amendment and its interpretation of the Supreme Court's decision in Crawford. This interlocutory appeal thus presents a question of law which we review de novo. United States v. Trala, 386 F.3d 536, 543 (3d Cir. 2004); United States v. Barbosa, 271 F.3d 438, 452 (3d Cir. 2001).
As noted by the UNITED STATES COURT OF APPEALS for the First Circuit, the recent decision in Crawford has "changed the legal landscape for determining whether the admission of... hearsay statements violates the accused's right[s]" under the Confrontation Clause. Horton v. Allen, 370 F.3d 75, 83 (1st Cir. 2004); see also United States v. McClain, 377 F.3d 219, 221 (2d Cir. 2004) ("Crawford redefines the Court's Sixth Amendment ...