                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2005

USA v. Hendricks
Precedential or Non-Precedential: Precedential

Docket No. 04-2465




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                                              PRECEDENTIAL


          UNITED STATE COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                             ______

                       No: 04-2465
                         ______

             UNITED STATES OF AMERICA,
                         Appellant

                                 v.

      CRAIG M. HENDRICKS; RUSSELL ROBINSON
          ELROY DOWE; DANIEL FLEMING;
        RANNEY LARONDE; ANDY ANTOINE;
        RUDOLPH CLARK; RAFAEL CINTRON;
        KALISHA MARTIN; JACQUELYN CARR


              On Appeal from the District Court
                     for the Virgin Islands
                    (D.C. No. 04-cr-00005 )
         District Judge: Honorable Raymond L. Finch




                 Argued December 16, 2004

 Before: SLOVITER, FUENTES, and GREENBERG, Circuit
                      Judges.

                  (Filed: January 14, 2005)


David M. Nissman
      U.S. Attorney
Anthony J. Jenkins
      Acting U.S. Attorney
Patricia M. Sulzbach (Argued)
       Assistant U.S. Attorney
District of the Virgin Islands

Cynthia Stone
      Senior Trial Attorney
Criminal Division
U.S. Department of Justice
Washington, DC 20530

      Attorneys for Appellant

Eric S. Chancellor
Christiansted, St. Croix, USVI 00820

      Attorney for Appellee Elroy Dowe

Andrew L. Capdeville (Argued)
St. Thomas, USVI 00804

      Attorneys for Appellee Craig M. Hendricks

Leonard B. Francis, Jr.
Charlotte Amalie, St. Thomas, USVI 00801

      Attorney for Appellee Daniel Fleming

Kevin W. Weatherbee
Charlotte Amalie, St. Thomas, USVI 00802

      Attorney for Appellee Ranney Laronde

Clive Rivers
Charlotte Amalie, St. Thomas, USVI 00802

      Attorney for Appellee Andy Antoine




                                2
Treston E. Moore
Charlotte Amalie, St. Thomas, USVI 00804

       Attorney for Appellee Rafael Cintron

Jomo Meade
Frederiksted, St. Croix, USVI 00840

       Attorney for Appellee Jacqueline Carr


                   OPINION OF THE COURT

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,1 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.2


       1
          The District Court has continuing jurisdiction over this
case under 18 U.S.C. § 3231 and 48 U.S.C. § 1612; this court has
jurisdiction over this interlocutory appeal pursuant to 18 U.S.C. §
3731 and 28 U.S.C. § 1294(3).
       2
         The District Court also issued a pretrial ruling suppressing
a post-arrest statement of Appellee Craig Hendricks because it
found that “Hendricks never waived his right to have counsel
present during the [custodial] interview by law enforcement
officials.” J.A. at 40. The United States initially filed a notice

                                 3
                                 I.
       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.3 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.4 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


appealing this decision, but subsequently dismissed that facet of its
appeal.
       3
         Although the case was originally brought in the District
Court for the Virgin Islands, Division of St. Thomas and St. John,
the District Court granted the Government’s motion for a change
of vicinage and transferred the matter to the District Court for the
Virgin Islands, Division of St. Croix. J.A. at 94; see generally
Gov’t of V.I. v. Scatliffe, 580 F. Supp. 1482, 1485 (D. V.I. 1984).
       4
            CI Rivera was murdered shortly after the indictment was
returned.

                                  4
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 38.5 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,



       5
          The United States had maintained that the Defendants
were responsible for CI Rivera’s death and thus, at least as to the
conversations involving CI Rivera, had forfeited by wrongdoing
any protection offered by the rule against hearsay, see Fed. R. Evid.
804(b)(6), or the Sixth Amendment, see Reynolds v. United States,
98 U.S. 145, 158-59 (1878). The District Court rejected this
argument, finding that the United States was “unable to establish
a conclusive link between [the Defendants] and the murder of
Hector Rivera.” J.A. at 39. That ruling is not before this court.

                                 5
541 U.S. at __, 124 S. Ct. at 1374). It follows, the Government
argued, that “‘nontestimonial 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 nontestimonial 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 . . . .”).

                                 II.
        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
jurisprudence . . . .”). A somewhat detailed recounting of that

                                 6
case, therefore, is useful for resolution of the case at bar.

        The State of Washington charged M ichael D. Crawford
with assault and attempted murder for stabbing Kenneth Lee, a
man Crawford believed had tried to rape his wife. During the
police investigation, both Crawford and his wife gave formal
statements to law enforcement officials. In her statement, Mrs.
Crawford generally corroborated her husband’s version of the
events leading up to the fight; however, her account of the fight
itself was arguably different from that of her husband with
respect to whether Lee had drawn a weapon before Crawford
struck him. Crawford, 541 U.S. at __, 124 S. Ct. at 1357.

        At trial, Crawford claimed self-defense. Under a
Washington statute regarding marital privilege, Mrs. Crawford
was “unavailable” to testify. 541 U.S. at __, 124 S. Ct. at 1357-
58. The prosecution sought to have Mrs. Crawford’s statements
to the police admitted through a codified hearsay exception. In
response, Crawford argued that, notwithstanding the hearsay
exception, the admission of his wife’s statements would violate
the Confrontation Clause. The trial court, relying on Ohio v.
Roberts, 448 U.S. 56 (1980), found Mrs. Crawford’s statements
“trustworthy” and thus admitted them. Crawford, 541 U.S. at
__, 124 S. Ct. at 1358.

        In Roberts, the Supreme Court had held that the
Confrontation Clause does not preclude the admission of an
unavailable witness’s hearsay statement if it bears “adequate
indicia of reliability.” Roberts, 448 U.S. at 66 (internal
quotations and citations omitted). Under Roberts, a hearsay
statement contains “adequate indicia of reliability” if it falls
within a “firmly rooted hearsay exception” or if it bears
“particularized guarantees of trustworthiness.” Id. Applying
this test, the trial court found Mrs. Crawford’s statements
trustworthy and therefore admissible. Although the Washington
Court of Appeals reversed that decision, citing reasons why Mrs.
Crawford’s statements were not trustworthy, the Washington
Supreme Court agreed with the trial court that Mrs. Crawford’s
statements showed sufficient evidence of trustworthiness to be
admitted. 541 U.S. at __, 124 S. Ct. at 1358. The United States

                                  7
Supreme Court granted Crawford’s petition for certiorari.

        Justice Scalia, writing for the Court, began by
highlighting the differences between the common law practice of
receiving evidence through live testimony in court subject to
adversarial testing with the civil law practice of receiving
evidence through ex parte private examinations of witnesses by
government officials. Although the Court noted that common
law systems had occasionally adopted and utilized elements of
the civil law practice (referring at some length to the notorious
English trial of Sir Walter Raleigh), it recognized that, as
illustrated by various state constitutional provisions circa 1776,
the introduction of government-sponsored ex parte examinations
against an accused has long been considered an anathema in
common law systems in general and in the American system in
particular. 541 U.S. at __, 124 S. Ct. at 1359-63.

        After surveying various founding-era sources, the Court
stated that “the principal evil at which the Confrontation Clause
was directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence against
the accused.” 541 U.S. at __, 124 S. Ct. at 1363; see also United
States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004) (discussing
Crawford, noting: “The central function of this right [of
confrontation] is to protect individuals from the use of ex parte
statements as evidence against them in a criminal trial”). With
the principal focus of the Confrontation Clause thus established,
the Court proceeded to uncouple the rationale undergirding the
prohibition against hearsay from the impetus behind the
Confrontation Clause, suggesting “that not all hearsay implicates
the Sixth Amendment’s core concerns.” 541 U.S. at __, 124 S.
Ct. at 1364; see also Thomas J. Reed, Crawford v. Washington
& the Irretrievable Breakdown of a Union: Separating the
Confrontation Clause from the Hearsay Rule, 56 S.C. L. Rev.
185 (2004). It continued:

       An off-hand, overheard remark might be unreliable
       evidence and thus a good candidate for exclusion
       under hearsay rules, but it bears little resemblance
       to the civil-law abuses the Confrontation Clause

                                8
       targeted. On the other hand, ex parte examinations
       might sometimes be admissible under modern
       hearsay rules, but the Framers certainly would not
       have condoned them.

Crawford, 541 U.S. at __, 124 S. Ct. at 1364.

       The Crawford Court noted that the text of the
Confrontation Clause is supportive of this distinction. The
Clause provides: “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend. VI. Thus, the Clause applies to
“‘witnesses’ against the accused--in other words, those who
‘bear testimony.’” 541 U.S. at __, 124 S. Ct. at 1364 (emphasis
added) (quoting 1 N. Webster, An American Dictionary of the
English Language (1828)). As recognized by the Crawford
Court: “‘Testimony,’ is typically ‘[a] solemn declaration or
affirmation made for the purpose of establishing or proving
some fact.’” 541 U.S. at __, 124 S. Ct. at 1364 (quoting 1 N.
Webster, An American Dictionary of the English Language
(1828)). Thus, 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.” Crawford,
541 U.S. at __, 124 S. Ct. at 1364.

       After engaging in this historical and textual analysis, the
Court concluded that, even if the Confrontation Clause “is not
solely concerned with testimonial hearsay, that is its primary
object.” Crawford, 541 U.S. at __, 124 S. Ct. at 1365. The
Court further opined that, “[w]here testimonial statements are
involved, we do not think the Framers meant to leave the Sixth
Amendment’s protection to the vagaries of the rules of evidence,
much less to amorphous notions of ‘reliability.’” 541 U.S. at __,
124 S. Ct. at 1370.

        Therefore, the Court, partially abrogating Roberts, held
that “testimonial” hearsay statements may not be introduced
against a defendant unless the declarant is unavailable at trial
and the defendant had a prior opportunity to cross-examine the
declarant. 541 U.S. at __, 124 S. Ct. at 1374. Importantly, this

                                9
outcome obtains regardless of whether the statement at issue
falls within a firmly rooted hearsay exception or has a
particularized guarantee of trustworthiness. Id.6 In sum, insofar
as “testimonial” evidence is concerned, Crawford replaced the
malleable judicial inquiry mandated by Roberts with a virtually
per se rule of exclusion. See United States v. Saget, 377 F.3d
223, 226-27 (2d Cir. 2004) (“It is clear that a court faced with an
out-of-court testimonial statement need not perform the Roberts
reliability analysis, as Crawford replaces that analysis with a
bright-line rule drawn from the historical origins of the
Confrontation Clause.”).

        The lynchpin of the Crawford decision thus is its
distinction between testimonial and nontestimonial hearsay;
simply put, the rule announced in Crawford applies only to the
former category of statements. Crawford, 541 U.S. at __, 124 S.
Ct. at 1374. As the Court explained: “Where nontestimonial
hearsay is at issue, it is wholly consistent with the Framers’
design to afford . . . flexibility in the[] development of hearsay
law--as does Roberts, and as would an approach that exempted
such statements from Confrontation Clause scrutiny altogether.”
Id.7 Thus, unless a particular hearsay statement qualifies as


       6
         The Court, however, did recognize two potential
exceptions to this otherwise per se rule: (1) dying declarations,
Crawford, 541 U.S. at __, 124 S. Ct. at 1367 n.6; and (2) forfeiture
by wrongdoing, id. at __, 124. S. Ct. at 1370. See also supra,
footnote 5.
       7
          Some commentators have interpreted this statement as
suggesting that in the future the Court may abrogate completely the
Roberts holding and exclude nontestimonial statements entirely
from the ambit of the Confrontation Clause. See Edward J.
Imwinkelried, The Treatment of Prosecution Hearsay Under
Crawford v. Washington: Some Good News But . . . ., The
Champion, Oct. 2004, at 16, 18 (“The [Crawford] majority’s harsh
criticism of Roberts’ reliability standard makes it even more likely
that the Court will eventually relax the standard for admitting
nontestimonial hearsay.”).        Such a development in Sixth
Amendment jurisprudence is beyond the province of this court. Cf.

                                10
“testimonial,” Crawford is inapplicable and Roberts still
controls.

        Notwithstanding the centrality of the term to its decision,
the Crawford Court expressly declined to provide a
comprehensive definition of “testimonial statements.” Crawford,
541 U.S. at __, 124 S. Ct. at 1374; id. at __, 124 S. Ct. at 1378
(Rehnquist, C.J., concurring). It did, however, reference several
“formulations of [the] core class of ‘testimonial’ statements” and
further provided some concrete examples of evidence that is
obviously testimonial. Crawford, 541 U.S. at __, 124 S. Ct. at
1364; see also United States v. Manfre, 368 F.3d 832, 838 n.1
(8th Cir. 2004) (“The Court in Crawford specifically left
ambiguous the definition of ‘testimonial’ but did not leave us
without some bench marks.”).

        Crawford had suggested defining testimonial statements
as “‘ex parte in-court testimony or its functional equivalent--that
is, material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine or
similar pretrial statements that declarants would reasonably
expect to be used prosecutorially.’” 541 U.S. at __, 124 S. Ct. at
1364 (quoting Brief for Petitioner Crawford). In its opinion, the
Court adopted Crawford’s suggestion as examples of testimonial
statements to which its opinion would apply. The Court also
referred to Justice Thomas’ earlier definition of “testimonial
statements” as “‘extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions,
prior testimony, or confessions.’” 541 U.S. at __, 124 S. Ct. at
1364 (quoting White v. Illinois, 502 U.S. 346, 365 (1992)
(Thomas, J., concurring)). The third and broadest formulation,
offered to the Court by amicus curiae the National Association
of Criminal Defense Lawyers (“NACDL”), would define
testimonial statements as those “‘made under circumstances
which would lead an objective witness reasonably to believe
that the statement[s] would be available for use at a later trial.’”



Agostini v. Felton, 521 U.S. 203, 237 (1997); Sierra v. Romaine,
347 F.3d 559, 575 n.27 (3d Cir. 2003).

                                 11
541 U.S. at __, 124 S. Ct. 1364 (quoting Brief of NACDL).
Finally, the Court provided several concrete examples of
obviously testimonial statements, referencing: “prior testimony
[given] at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations.” 541 U.S. at __, 124 S.
Ct. at 1374.

       As we noted above, the Court declined to adopt any
specific definition of “testimonial statements.” Instead, it
resolved the case by noting that formal “[s]tatements taken by
police officers in the course of interrogations are . . . testimonial
under even a narrow standard.” Crawford, 541 U.S. at __, 124 S.
Ct. 1364. The Court therefore held that the trial court’s
admission of Mrs. Crawford’s statements to the police as
evidence against Crawford violated his rights under the Sixth
Amendment.

       With this summary in place, it is now appropriate to
consider how the Confrontation Clause analysis in Crawford
applies to the case at bar.

A. The Title III Recordings
        Following the decision in Crawford, the courts of appeals
have struggled with the definition of “testimonial hearsay.” See,
e.g., United States v. Rodriguez-Marrero, 390 F.3d 1, 17 (1st
Cir. 2004) (“We conclude that Llaurador’s signed confession,
presented under oath to the prosecutor in Puerto Rico, is
testimonial hearsay within the meaning given by the Supreme
Court [in Crawford].”); United States v. Cromer, 389 F.3d 662,
674 (6th Cir. 2004) (stating that “[a] statement made knowingly
to the authorities that describes criminal activity is almost always
testimonial” and thus concluding that CI’s statement to police
wherein CI implicated defendant in criminal activity constituted
testimonial hearsay); Parle v. Runnels, 387 F.3d 1030, 1037 (9th
Cir. 2004) (suggesting, in dictum, that statements contained in
diary constituted nontestimonial hearsay); United States v.
Bruno, 383 F.3d 65, 78 (2d Cir. 2004) (stating that plea
allocution transcript and grand jury testimony of unavailable
witnesses constituted testimonial hearsay); see generally Robert
P. Mosteller, Crawford v. Washington: Encouraging & Securing

                                 12
the Confrontation of Witnesses, 39 U. Rich. L. Rev. 511, 533-
615 (2005).

        Under Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. § 2510 et seq., a duly authorized
law enforcement officer must obtain approval from the United
States Attorney General or a designated Assistant Attorney
General in order to apply to a federal judge for approval to
intercept and record wire communications. 18 U.S.C. § 2516(1);
see also United States v. Giordano, 416 U.S. 505, 512-13 (1974).
Once such approval is obtained, the officer must present to a
judge a written application for a wiretap, 18 U.S.C. § 2518,
which must contain an adequate and particularized showing of
probable cause. 18 U.S.C. § 2518(3)(b). It must also contain a
showing of necessity, 18 U.S.C. § 2518(3)(c), and explain why
“normal investigative techniques would be of no avail.” United
States v. Adams, 759 F.2d 1099, 1114 (3d Cir. 1985). The
Government must further take steps to minimize the monitoring
of nonpertinent conversations and otherwise to limit invasions of
privacy. 18 U.S.C. § 2518(5); see generally United States v.
Sorapuru, 902 F. Supp. 1322 (D. Colo. 1995). In the instant
case, the District Court determined that the wiretaps at issue
were “legally sufficient in terms of authority, probable cause,
necessity, and minimization.” J.A. at 39. Those findings are not
before this court.

       As recounted in Section I, the District Court ruled that
multiple conversations between the various Defendants and
other third parties surreptitiously intercepted by law enforcement
through Title III wiretaps were testimonial statements and thus
inadmissible unless the particular speakers in any given
conversation were to testify at trial. The District Court’s
decision to exclude the Title III recordings on the basis of
Crawford--under any conceivable definition of “testimonial”--
was error. Indeed, at oral argument, counsel for the defense was
unable to argue to the contrary.

       First and foremost, the recorded conversations here at
issue neither fall within nor are analogous to any of the specific
examples of testimonial statements mentioned by the Court.

                                13
Crawford, 541 U.S. at __, 124 S. Ct. at 1374 (listing “prior
testimony [given] at a preliminary hearing, before a grand jury,
or at a former trial[,] and . . . police interrogations” as examples
of obviously testimonial statements). Second, the recorded
conversations do not qualify as “testimonial” under any of the
three definitions mentioned by the Court. They are not “ex parte
in-court testimony or its functional equivalent,” nor are they
“extrajudicial statements . . . contained in formalized . . .
materials, such as affidavits, depositions, prior testimony, or
confessions.” 541 U.S. at __, 124 S. Ct. at 1364 (internal
citations and quotations omitted). Each of the examples referred
to by the Court or the definitions it considered entails a formality
to the statement absent from the recorded statements at issue
here. Even considered in perspective of the broad definition
offered by the NACDL, the Title III recordings cannot be
deemed “testimonial” as the speakers certainly did not make the
statements thinking that they “‘would be available for use at a
later trial.’” Crawford, 541 U.S. at __, 124 S. Ct. 1364 (quoting
Brief of NACDL). Rather, the very purpose of Title III
intercepts is to capture conversations that the participants believe
are not being heard by the authorities and will not be available
for use in a prosecution.

         A witness “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.” Crawford, 541 U.S.
at __, 124 S. Ct. at 1364. The Title III recordings here at issue
are much more similar to the latter than the former. Therefore,
as recognized by other courts that have addressed similar issues,
we find that the surreptitiously monitored conversations and
statements contained in the Title III recordings are not
“testimonial” for purposes of Crawford. See Horton v. Allen,
370 F.3d 75, 84 (1st Cir. 2004) (finding “statements . . . made
during a private conversation” nontestimonial); State v. Rivera,
844 A.2d 191, 202 (Conn. 2004) (“Glanville made the statement
in confidence and on his own initiative to a close family member
. . . . [It] clearly does not fall within the core category of ex
parte testimonial statements that the court was concerned with in
Crawford.”). Cf. United States v. Robinson, 367 F.3d 278, 292
n.20 (5th Cir. 2004) (“[T]he statement challenged as hearsay was

                                14
made during the course of the conspiracy and is non-testimonial
in nature.”); United States v. Reyes, 362 F.3d 536, 541 n.4 (8th
Cir. 2004) (“[C]o-conspirator statements are nontestimonial.”);
People v. Cook, 815 N.E.2d 879, 893 (Ill. App. Ct. 2004) (“[I]f
the statements in question qualify as co-conspirator statements,
the rule announced in Crawford does not apply to bar their
admission.”).

        Inasmuch as the District Court erroneously interpreted the
Crawford ruling as requiring the rejection of the Title III
recordings, we will reverse its order denying the United States’
motion in limine. As we concluded above, the Title III
recordings are not testimonial. Because of the District Court’s
reliance on Crawford, it never considered whether the Title III
conversations were admissible under the proper standards set
forth in the Federal Rules of Evidence and, to the extent it is
applicable, the reliability standard under Roberts, 448 U.S. at 66.
But see Bourjaily v. United States, 483 U.S. 171, 183-84 (1987)
(“[W]e hold that the Confrontation Clause does not require a
court to embark on an independent inquiry into the reliability of
statements that satisfy the requirements of [Fed. R. Evid.]
801(d)(2)(E).”). Cf. United States v. Inadi, 475 U.S. 387, 399-
400 (1986) (holding that Confrontation Clause does not require
the prosecution to show that 801(d)(2)(E) declarant is
unavailable). Therefore, on remand the District Court is directed
to determine on an individualized basis whether each of the Title
III recordings is admissible (and, if admissible, against whom
and for what purpose). 8
B. The Conversations Involving CI Rivera
        The District Court also ruled that the United States could



       8
           For example, if the United States urges that a particular
Title III recording is admissible as a coconspirator statement, the
District Court must determine, inter alia, that the statement was
made “‘in furtherance of’” the conspiracy. United States v. Ellis,
156 F.3d 493, 496 (3d Cir. 1998) (quoting and construing Fed. R.
Evid. 801(d)(2)(E)). We take no position on whether the District
Court should undertake such inquiries prior to trial, or during the
course of trial as the various objections arise.

                                15
not introduce conversations between CI Rivera and various of
the Defendants. Although occasionally a telephone conversation
between Rivera and one of the Defendants was caught in a Title
III wiretap, the conversations that fall within this heading are
face-to-face conversations that were recorded by Rivera wearing
a taping device provided by the Government. It cannot be
disputed that CI Rivera knew of the Government’s surreptitious
recording and documentation of these conversations. The
District Court noted that, “[i]n discussing the ‘core’ class of
statements that are considered testimonial, the . . . [Crawford]
Court specifically included ‘. . . pretrial statements that
declarants would reasonably expect to be used prosecutorially.’”
J.A. at 68 (quoting Crawford, 541 U.S. at __, 124 S. Ct. at
1364). The District Court reasoned that because CI Rivera was
working with the Government for the very reason of obtaining
evidence against the Defendants for use in the Government’s
investigation and prosecution, the conversations fell within the
rule of Crawford.

        The District Court’s analysis is not without some appeal.
Insofar as they contain the statements of CI Rivera, the
conversations reasonably could be categorized as involving
statements that Rivera expected to be used prosecutorially;
obtaining evidence for the prosecution is, after all, the raison
d’être of being a confidential informant. 9 However, the
Crawford decision cites with approval Bourjaily v. United
States, 483 U.S. 171 (1987), a case in which the Court rejected a
Confrontation Clause objection to the admission of a



       9
          Of course, the various defendants and coconspirators, as
the other half of the conversational equation, certainly did not
realize that their statements were going to be used prosecutorially.
And, as explained in the above text, because they constitute
admissions unwittingly made, the defendants and coconspirators’
portions of the CI Rivera conversations are clearly nontestimonial
statements and are thus not subject to the Crawford rule. See
United States v. Saget, 377 F.3d 223, 229-30 (2d Cir. 2004) (“We
. . . conclude that Beckham’s statements to the CI were not
testimonial, and Crawford does not bar their admission.”).

                                16
conversation between a co-defendant and a confidential police
informant. Indeed, the Crawford Court referenced Bourjaily as
an example of a case in which nontestimonial statements were
correctly admitted against the defendant despite the lack of a
prior opportunity for cross-examination. See Crawford, 541
U.S. at __, 124 S.Ct. at 1368 (citing Bourjaily, 483 U.S. at 181-
84).

        In Bourjaily, the Court addressed the admissibility of
admissions made unwittingly by William Bourjaily’s co-
defendant (and purported coconspirator) to an informant. The
Court held that even though Bourjaily had not had a prior
opportunity to cross-examine his co-defendant regarding the
statements, if the statements were admissible under Fed. R. Evid.
801(d)(2)(E) their introduction as evidence against Bourjaily did
not run afoul of the Confrontation Clause. Bourjaily, 483 U.S. at
183. The Court reached this outcome despite the fact that the
co-defendant was, due to his invocation of the privilege against
self-incrimination, “unavailable” to testify at trial. Bourjaily,
483 U.S. at 182. As mentioned, Crawford approved of this
holding, citing it as an example of a case that is “consistent
with” the principle that the Sixth Amendment permits the
admission of nontestimonial statements in the absence of a prior
opportunity for cross-examination. Crawford, 541 U.S. at __,
124 S.Ct. at 1367.

       To be sure, there is a difference between the analysis
undertaken by the Court in Bourjaily and the analysis urged by
the Defendants here. Specifically, in Bourjaily, the Court
focused on the unavailability of the coconspirator whose
conversation with a confidential informant the Government
sought to introduce. In contrast, the Defendants here emphasize
the unavailability of the confidential informant. Stated
otherwise, although the Bourjaily Court addressed the
Confrontation Clause implications of the admission of
conversations with a government informant, it focused on the
non-informant half of the conversation.

      During oral argument before us, the United States
conceded that it was not seeking to introduce the statements of

                                17
CI Rivera for their truth and thus correctly argued that the
introduction of his statements would present no hearsay problem.
See Fed. R. Evid. 801(c). As recognized by the Crawford Court,
the Confrontation Clause likewise “does not bar the use of
testimonial statements for purposes other than establishing the
truth of the matter asserted.” Crawford, 541 U.S. at __, 124 S.
Ct. 1369 n.9; see also United States v. Trala, 386 F.3d 536, 544-
45 (3d Cir. 2004) (finding no Confrontation Clause violation
where reliability of out-of-court statements was not at issue and
where the statements were not introduced for their truth).
Therefore, even if we were to hold that CI Rivera’s statements
within the conversations are themselves testimonial, an issue we
need not reach, such an outcome would not preclude the United
States from introducing CI Rivera’s statements for a purpose
other than establishing the truth of the matters contained therein.

       Due to the Crawford Court’s reaffirmation of Bourjaily,
we conclude that the party admission and coconspirator portions
of the disputed CI Rivera conversations are nontestimonial and
thus, assuming compliance with the Federal Rules of Evidence,
are admissible. See also Saget, 377 F.3d at 229-30. Stated
otherwise, Crawford presents no bar to the admission of the
statements of Defendants or their coconspirators made in the
conversations with CI Rivera that he surreptitiously recorded.

        Under these circumstances, we conclude that the
Government should be permitted to introduce the balance of the
conversations, i.e., the statements of CI Rivera which, as the
Government argues, put the statements of the other parties to the
conversations “into perspective and make them intelligible to the
jury and recognizable as admissions.” United States v.
McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990) (internal
citations and quotations omitted); see also United States v.
Stelten, 867 F.2d 453, 454 (8th Cir. 1988) (per curiam); United
States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988);
United States v. Murray, 618 F.2d 892, 900 (2d Cir. 1980);
United States v. Lemonakis, 485 F.2d 941, 948-49 (D.C. Cir.
1973).

       We thus hold that if a Defendant or his or her

                                18
coconspirator makes statements as part of a reciprocal and
integrated conversation with a government informant who later
becomes unavailable for trial, the Confrontation Clause does not
bar the introduction of the informant’s portions of the
conversation as are reasonably required to place the defendant or
coconspirator’s nontestimonial statements into context.

       Accordingly, the District Court’s ruling to exclude the
conversations involving CI Rivera on the basis of Crawford was
error. Nonetheless, as we stated above in respect to the Title III
recordings, on remand the District Court must determine on an
individualized basis whether each of the disputed conversations
is indeed authentic and otherwise admissible under the Rules of
Evidence and the decisional law thereon.

                                 III.
       We therefore will grant the United States’ appeal, reverse
the order of the District Court, and remand for further
proceedings not inconsistent with this opinion.10




       10
           In an argument posited in the alternative, Defendant
Hendricks, joined by Defendants Laronde and Fleming, argue that
even if the District Court misconstrued Crawford, this court should
not reverse because the District Court’s decision to exclude the
disputed evidence was also based on findings of unreliability--
findings to which the Defendants suggest this court should defer.
See Br. of Appellee Hendricks at 12. But see Bourjaily, 483 U.S.
at 184. The Defendants are correct that reliability determinations
are matters peculiarly within the ken of the district courts. See
United States v. Lawrence, 349 F.3d 109, 115 (3d Cir. 2003);
United States v. Starks, 515 F.2d 112, 121 (3d Cir. 1975). Here,
however, the District Court’s decision to exclude the disputed
evidence was based on its erroneous interpretation of Crawford and
consequently did not turn on any findings of unreliability. For this
reason, the alternative argument is unconvincing.

                                19
