UNITED STATES V. FAILING, NO. 10-3330-cr (2D CIR. FEB. 3, 2014) (KATZMANN, WESLEY, AND LOHIER) (SUMMARY ORDER), AVAILABLE HEREIn this case, the defendant was convicted after trial of conspiracy to possess methamphetamine with intent to distribute. He received 77 months' custody. On appeal he challenged the district court's admission of out-of-court statements by a co-conspirator pursuant to Federal Rule of Evidence 801(d)(2)(E) and argued that their admission violated his Confrontation Clause and due process rights. He also challenged his sentence as procedurally and substantively unreasonable claiming that the district court refused to consider arguments regarding his methamphetamine addiction. All of these claims failed.
First, no error occurred as a result of admitting the co-conspirator's statements. To be admissible pursuant to Rule 801(d)(2)(E), the district court must find by a preponderance of evidence that the statement was made in furtherance of the conspiracy. The district court did not err by admitting the statements, which according to the Court reassured co-conspirators, induced their assistance, fostered trust and cohesiveness, or provided information about the conspiracy's progress.
Second, no Confrontation Clause or due process violations occurred as a result of the statements being admitted at trial. Relying on United States v. Farhane, 634 F.3d 127, 163 (2d Cir. 2011), the Court explained that a statement is or is not "testimonial" by examining "the declarant's awareness or expectation that his or her statements may later be used at a trial." (emphasis added). In Failing's case, the co-conspirator who uttered the statements did not know that he was speaking to a government agent and, thus, was unaware that his statements might later be used at trial. The Court also disagreed with suggestions that the admissibility of such non-testimonial statements should be subject to a balancing analysis and noted the lack of authority in this regard.
Finally, the record indicated that the district court in fact acknowledged and considered the defendant's methamphetamine addiction in imposing sentence, which was within the range of permissible decisions in this case.