Confrontation and Co-conspirators. Two cases came down from the Second Circuit on July 28, 2004 relating to whether a criminal defendant's Sixth Amendment confrontation right was violated by the admission into evidence of statements by co-conspirators. In United States v. McClain, the defendants were accused of money laundering, wire fraud and conspiracy to commit money laundering and wire fraud. At trial, the government was permitted to introduce three co-conspirators' guily plea allocutions to establish the existence of a conspiracy. The defendants were convicted and appealed. After the appeal was filed, but prior to oral arguement, the Supreme Court decided Crawford v. Washington, in which the Court established a per se bar on the admission of out-of-court statements made by unavailable declarants where there had been no prior opportunity for cross-examination. The Second Circuit held that the plea allocutions were testimonial in nature in that they are formally given in court, under oath, and in response to questions by the court or the prosecutor. The Court, however, noted that while the admission of these allocutions violated the Confrontation Clause, the violation was subject to harmless error review. Since the evidence against the defendants was overwhelming, the Second Circuit held that the violation of the defendants' confrontation rights was harmless error and affirmed the convictions.

In United States v. Saget, the defendant was accused of trafficking in firearms and conspiracy to traficking in fire arms. The trial court allowed the government to enter into evidence statements that the defendant's co-conspirator made to a confidential informant. The defendant was convicted and appealed. The Second held that Crawford did not place any limites on the admissibility of non-testimonial statements. And Crawford at least suggested "that the determinative factor in determing whether a declarant bears testimony is the declarant's awareness or expectation that his or her statements may later be used at trial." The Second Circuit held that the co-conspirator's statements were not testimonial in nature. However, if the statements do not fall within a firmly rooted hearsay exception or contain particularized guarantees of trustworthiness, their admission would still violate the Confrontation Clause. The Court found that, under its precedents, the statements "were made in circumstances that confer adequate indicia of reliability on [them]." Hence, the Confrontation Clause was not violated. The conviction was affirmed.

McClain can be found here. Saget can be found here.