Saturday, August 14th, 2010

A Bad Call

United States v. Gomez, No. 08-3829-cr (2d Cir. August 4, 2010) (Leval, Pooler, Parker, CJJ)

Here, the improper admission of indirect hearsay resulted in a new trial.


Fred Rivas and a confederate sold 5,000 Ecstacy pills to a confidential informant. They were arrested, and Rivas agreed to cooperate. A New York City detective, Michael Ryan, was permitted to testify about the nature of Rivas’ cooperation; specifically, Ryan testified that he asked Rivas to “call the person who had given him that 5,000 pills,” and that Ryan then dialed Gomez’ number from Rivas’ phone and recorded their conversation. The district court denied Gomez’ hearsay objection to this testimony, and the government ended up using it in summation to directly implicate Gomez as the supplier.

The Circuit’s Decision

The court found that Ryan’s testimony constituted prejudicial hearsay, and rejected with unusually strong language the government’s claim that it admitted the testimony for a non-hearsay purpose – as “background” evidence.

Here, there was simply no non-inculpatory alternative to explain why Ryan chose Gomez’ number after he instructed Rivas to call his supplier. Indeed, that testimony “provide[d] background that would aid the jury in understanding why Gomez was called only if we assume that Rivas told Ryan that Gomez was his supplier, which we cannot do.” And, if the jury “inexplicably” missed this “obvious point,” the AUSA “drove it home with her … summation.”

The testimony was also “completely unnecessary” as background. Ryan testified that Rivas was arrested and agreed to make recorded phone calls. That was “sufficient background” for the calls themselves.

In a footnote, the court remarked that, while Ryan’s instruction to Rivas to call his supplier did not include hearsay (one might quibble with this conclusion since, although Ryan was subject to cross-examination, he gave the instruction when he was not, and it was offered, at least in part, for its truth) the instruction’s connection to Rivas’ call to Gomez nevertheless communicated the hearsay message that Rivas identified Gomez as his supplier. The court directed that, on retrial, the district court “should exclude the officer’s instruction.”

The court also found that the admission of the hearsay was not harmless. While the evidence was legally sufficient, it was “hardly overwhelming as to” Gomez’ involvement in that particular transaction. Although Rivas’ recorded conversation with him likely related to a drug deal, a “reasonable juror” would “not have been compelled to conclude that Gomez was the supplier for the earlier sale” because the call did “not clearly indicate that Gomez supplied the 5,000 pills.” It should be noted that this particular analysis would be easier to follow if the court had quoted at least some of the recorded conversation. But, alas, it did not.

Moreover, while the district court gave a limiting instruction, that did not render the hearsay error harmless. The court will not presume that a jury has followed a limiting instruction where “there is an overwhelming probability” that the jury would be unable to and “the evidence is devastating to the defense.” Both were true here. Gomez’ jury was “confronted with an instruction that they should not consider Ryan’s testimony as proof that Gomez was Rivas’ supplier despite the fact that there was no apparent reason for the testimony other than to show that Ryan dialed Gomez’ number” because Rivas had identified Gomez as the supplier. Moreover, the limiting instruction did not cover the most damaging portion of the testimony – that Ryan called Gomez’ number only after instructing Rivas to call his supplier. It covered only Ryan’s instructions to Rivas and Rivas’ actions in response.

Finally, while the court did not rule on Gomez’ Confrontation Clause argument, it noted that “the very concerns embedded in the Confrontation Clause are part and parcel of our harmless error analysis.” Specifically, it considered the “importance of the wrongly admitted testimony,” and found Rivas’ untested accusation to be “significant.”

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