Thursday, August 16, 2012

Anonymous Jury, Forfeiture by Wrongdoing, OK'd in Large Drug Conspiracy Trials

US v. Dinkins: Dinkins, along with his codefendants Gilbert and Goods (aka "Moo Man"), was tried and convicted of numerous offenses related to a large drug operation in Baltimore, including the murder of another member of the operation who had begun to cooperate with police.  The lengthy facts are set forth in the opinion and too detailed to go into here.  All three defendants were sentenced to life in prison.  On appeal, each defendant presented multiple challenges to their convictions, all of which the Fourth Circuit rejected.  In particular, the court highlighted two issues.

The first was whether the district court abused its discretion by impaneling an anonymous jury, based on its concerns for the jurors' safety (given the fact that one of the charges involved the murder of a witness).  This was an issue of first impression in the Fourth Circuit.  The court identified an non-exhaustive list of five factors (including the defendants' involvement in organized crime or a group with the capacity to harm jurors) to use when deciding to impanel an anonymous jury.  The standard for doing so in capital cases (Dinkins and Gilbert were charged with capital offenses, Goods was not) is more exacting than for non-capital cases, although the same factors are relevant to both.  With that in mind, the court rejected defendants' argument that there was insufficient evidence to conclude that they had the present or future capacity to harm jurors.  The court also concluded that the district court took reasonable precautions to minimize the risk to the defendants' rights to a fair trial and presumption of innocence.

The second issue highlighted by the court was whether the admission of statements from Dowery, a former member of the operation who was killed after he began to cooperate with police, were properly admitted against Dinkins and Gilbert under FRE 804(b)(6), the "forfeiture by wrongdoing" exception to hearsay/confrontation.  The court noted that the exception only applies when a court finds (by a preponderance of the evidence) that the alleged wrongdoing was done to "render the declarant unavailable as a witness."  As to Dinkins, who was incarcerated when Dowery was actually killed (though he was not when an initial attempt on Dowery's life was made), the court concluded that the exception applied because it includes persons who acquiesce to the wrongdoing, in addition to engaging in the wrongdoing themselves.  As to Gilbert, the court rejected the argument that there was insufficient evidence from which to conclude that he, rather than some other person in the community who wished harm to a "snitch," killed Dowery (thus rendering him unavailable to testify).

The court also briefly addressed (and rejected) arguments about the district court's denial of motions to sever the defendants, a Batson challenge, and Goods's motion for acquittal.

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