United States v. Midyett
256 F.R.D. 332, 2009 WL 499522 (2009)
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Rule of Law:
Out-of-court statements between non-parties, offered as non-hearsay to provide 'context' for a defendant's actions, are inadmissible if they are actually being offered for the truth of the matter asserted, or if their probative value is substantially outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403.
Facts:
- A confidential informant (CI) approached Tyquan Midyett to purchase crack cocaine, an interaction which was captured on video.
- Midyett directed the CI to follow him into a building.
- While the CI was following Midyett, an unidentified female (UF) approached the CI and began a conversation.
- Midyett went upstairs, instructing the CI and the UF to wait for him at the bottom of the stairs.
- While waiting, the CI and UF's conversation continued, covering both personal chit-chat and the price Midyett charged for crack cocaine.
- Specifically, the UF advised the CI that Midyett sold vials for 'three bucks' so that the CI would not be 'take[n] for a fool.'
- The CI and UF then went up to a landing where Midyett was waiting.
- The CI proceeded to purchase fourteen vials of what the government alleged to be crack cocaine from Midyett for $42.00, a price consistent with the information provided by the UF.
Procedural Posture:
- Tyquan Midyett was charged in a superseding indictment in the U.S. District Court for the Eastern District of New York with conspiracy and substantive drug distribution counts, as well as a firearms count.
- Following jury selection, Midyett made an oral motion in limine to preclude the government from playing for the jury a portion of a video recording depicting a conversation between a confidential informant and an unidentified third party.
- The government opposed the motion both orally and in a subsequent written submission.
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Issue:
Are recorded out-of-court statements between a confidential informant and a third party, made during a controlled drug purchase from a defendant but outside the defendant's presence, admissible as non-hearsay evidence to provide context for the defendant's actions when their probative value is substantially outweighed by the risk of unfair prejudice?
Opinions:
Majority - Matsumoto, J.
No. The recorded conversation between the confidential informant and the unidentified female is inadmissible because it is either irrelevant, inadmissible hearsay, or its probative value is substantially outweighed by the danger of unfair prejudice. The court divided the conversation into two parts: the 'Non-Drug Conversation' and the 'Drug Conversation.' The 'Non-Drug Conversation' was deemed irrelevant 'idle chit-chat' under FRE 401. The 'Drug Conversation' about pricing, despite the government's claim that it was offered for 'context,' was found to be offered for the truth of the matter asserted—that Midyett charged three dollars per vial—making it inadmissible hearsay. Even if analyzed for a non-hearsay purpose, the court found its probative value was substantially outweighed by the risk of unfair prejudice under FRE 403. The statements addressed a key disputed issue (Midyett's drug dealing), the declarant (UF) was not expected to testify and be subject to cross-examination, and a limiting instruction would be ineffective. The court distinguished this case from precedents like United States v. Davis, where a third party's statements are admissible to provide context for a defendant's own admissible statements, because here the defendant was not a party to the conversation.
Analysis:
This decision reinforces the limitations on admitting out-of-court statements for the non-hearsay purpose of providing 'background' or 'context.' It clarifies that the exception allowing a third party's statements to make a conversation intelligible is primarily applicable when those statements provide context for an opposing party's (e.g., the defendant's) own admissible statements. The opinion serves as a strong application of the FRE 403 balancing test, acting as a gatekeeper to prevent the jury from hearing evidence that carries a high risk of being misused for an improper hearsay purpose. This holding cautions prosecutors against using the 'context' argument as a backdoor to introduce otherwise inadmissible hearsay, particularly from declarants who will not be available for cross-examination.
