United States v. Basciano
2006 WL 1026409, 2006 U.S. Dist. LEXIS 53575, 430 F. Supp. 2d 87 (2006)
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Rule of Law:
Under the forfeiture-by-wrongdoing exception to the Sixth Amendment's Confrontation Clause, the government must prove by a preponderance of the evidence both that the defendant engaged in wrongdoing intended to procure a witness's unavailability and that the witness is, in fact, unavailable as a result of that wrongdoing.
Facts:
- On or around November 14, 1985, Vincent Basciano allegedly attempted to murder David Nunez.
- On November 15, 1985, Nunez identified Basciano in a police lineup as his assailant.
- In December 1985, Nunez told Basciano's attorneys that he only remembered a 'man with a moustache.'
- In May 1986, Nunez told FBI agents that he had made a mistake in the lineup because the shooter had a moustache and the person he identified (Basciano) did not.
- The government presented evidence that Basciano later intimidated Nunez in order to make him deny his original identification.
Procedural Posture:
- The United States brought criminal charges against Vincent Basciano in the United States District Court for the Eastern District of New York, a federal trial court.
- Before trial, Basciano filed a motion in limine to exclude the testimony of a police officer regarding David Nunez's out-of-court lineup identification.
- Basciano argued that admitting the testimony would violate his Sixth Amendment Confrontation Clause rights as established in Crawford v. Washington.
- The Government opposed the motion, arguing that Basciano had forfeited his Confrontation Clause rights by intimidating the witness, Nunez.
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Issue:
Does the forfeiture-by-wrongdoing exception to the Sixth Amendment's Confrontation Clause permit the admission of a witness's out-of-court testimonial statement when the government has shown the defendant engaged in witness tampering but has not yet shown that the witness is actually unavailable to testify?
Opinions:
Majority - Garauris
No. The forfeiture-by-wrongdoing exception does not permit the admission of a witness's out-of-court testimonial statement until the government proves that the witness is actually unavailable to testify. The court held that Nunez's lineup identification was a 'testimonial' statement under Crawford v. Washington, meaning its admission through an officer's testimony without Nunez being available for cross-examination would violate Basciano's Confrontation Clause rights. While the government may invoke the forfeiture-by-wrongdoing exception, it must satisfy a two-prong test: (1) prove the defendant procured the witness's unavailability through wrongdoing, and (2) prove the witness is in fact unavailable. The court found the government had likely met the first prong by showing Basciano intimidated Nunez. However, the government had failed to meet the second prong because it had not yet demonstrated Nunez's unavailability, for example, by calling him to the stand and having him refuse to testify. Therefore, until Nunez's unavailability is established, the exception does not apply and the officer's testimony is inadmissible.
Analysis:
This decision clarifies the practical, two-part burden of proof required to invoke the forfeiture-by-wrongdoing doctrine after Crawford v. Washington. It establishes that evidence of witness tampering alone is insufficient; the prosecution must also formally prove the witness's resulting unavailability in fact. This ruling reinforces that the two prongs of the test—wrongdoing and unavailability—are distinct and independent requirements, creating a procedural hurdle for the government before it can introduce testimonial hearsay under this exception. This ensures that a defendant's Confrontation Clause rights are not extinguished based solely on allegations of misconduct without a concrete showing of its effect on the witness's ability or willingness to testify.
