United States v. Johnson

If proven by the preponderance of the evidence, a defendant forfeits his/her right to confrontation if he/she engages in or acquiesces to witness tampering.

Antoine Johnson, a member of the Hoover Street Gang, ambushed an armored truck, resulting in the shooting of one of the truck security guards. Later, Veronica Burgess (“Burgess”) told police that while out to lunch one day she overheard members of the Hoover Street Gang planning the attack. She was able to affirmatively identify Johnson, making her an important witness in the Government’s case. However, as the trial approached, the Government was unable to locate Burgess. The Government was able to prove that Johnson threatened Burgess to prevent her from testifying, which was confirmed by Burgess’s live-in boyfriend, Patrick Smith, stating that the Hoovers placed a “hit” on her life if she were to testify, as well as the prison guards looking after Johnson who noted that he was communicating with people on the outside. As a result, the district court permitted the Government to introduce her statements against Johnson under the forfeiture exception to the Confrontation Clause. Johnson appealed, challenging the constitutionality of the witness’s statements, claiming that they violated his Sixth Amendment right. On review, the Ninth Circuit first applied the Crawford v. Washington analysis in order to determine whether the witness’s statements were testimonial. The panel held that they were. Next, the panel analyzed whether the defendant had forfeited his right to confrontation by applying the analysis used in Giles v. California. The panel held that where a defendant “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declared witness” the defendant has forfeited his confrontation rights, rending hearsay admissible if proven to the judge by the preponderance of the evidence. Accordingly, the court held that the district did not err in finding the statements admissible. AFFIRMED.