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United States v. Hamzeh

United States District Court, E.D. Wisconsin

October 21, 2019

SAMY M. HAMZEH, Defendant.



         On October 14, 2019-the day before the final status conference, six days before trial, and a month after the September 13, 2019 deadline for filing motions in limine-the defendant filed this motion, asking the court to admit portions of the defendant's post-arrest statements under Fed.R.Evid. 106 (“Remainder of or Related Writings or Recorded Statements), and to exclude one excerpt as irrelevant, inflammatory and unduly prejudicial. Dkt. No. 330. The government responded, it did not object to some of the defendant's proposals but argued that others were hearsay as to the defendant. Dkt. No. 336. In its reply, the defense asked to admit two additional excerpts of the second interview. Dkt. No. 352. The government responded that given the court's exclusion of many of its proposed excerpts of the recorded conversations among Steve, Mike and the defendant, it now objected to the admission of any of the defendant's post-arrest statements presented if offered by the defense. Dkt. No. 355 at 2. The government argued that where the defendant sought to admit his own statements, those statements “are instead hearsay, offered for their truth, and offered as substantive evidence to support an entrapment defense.” Id.

         The court agrees that if a party such as the government seeks to admit a statement made by that party's opponent-in this case, the defendant-against that opponent, the statement is not hearsay under Rule 801(d)(2). If the opponent-the defendant-seeks to admit his own statements, the Rule 801(d)(2) exception doesn't apply, and if the opponent is seeking to admit the statements for the truth of the matters they assert, the statements meet the definition of hearsay under Rule 801(c). That is not, however, the end if the inquiry. The court still must consider whether the defendant offers the statement for the truth, and whether there are any exceptions to the hearsay rule that might apply.

         In United States v. Norwood, 798 F.2d 1094 (7th Cir. 1986), the Seventh Circuit held that “[t]estimony” “not offered to prove the truth of the matter asserted, but to establish the statements' effect upon [the defendant's] state of mind” was “not hearsay.” Norwood, 798 F.2d at 1097. In United States v. Branham, 97 F.3d 835, 851 (7th Cir. 1996), the court held that “conversations concerning [the defendant's] entrapment defense would not constitute hearsay.” The Branham court stated,

“Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Red. R. Evid. 801(c). However, “if the significance of a statement lies ‘lies solely in the fact that it was made,' rather than in the veracity of the out-of-court declarant's assertion, the statement is not hearsay because it is not offered to prove the truth of the matter asserted.” United States v. Cantu, 876 F.2d 1134, 1137 (5th Cir. 1989) (quoting United States v. Bobo, 586 F.2d 355 (5th Cir. 1978), cert. denied, 440 U.S. 976 . . . (1979)). Here, defense counsel was attempting to offer the parties' conversations as evidence of [the defendant's] state of mind in support of his entrapment defense. Accordingly, the truth of the conversations would be irrelevant for purposes of the defense, because the conversations' significance would exist solely by the fact that they were made. Id.

Id. See also, United States v. Partyka, 561 F.2d 118, 125 (8th Cir. 1977); United States v. Lopez, 147 F.3d 1, 6 (1st Cir. 1998).

         The court understands that the government may not have objected to-or may even have agreed to-some of the defendant's proposed excerpts because it assumed that the court would allow it to present more of the recorded conversations than turned out to be the case. The fact that the court has excluded some of the government's evidence does not necessarily mean that any of his own post-arrest statements the defendant asks the court to admit are per se inadmissible hearsay.

         A. Fed. R. Evid. 106

         Rule 106 of the Federal Rules of Evidences provides that “[i]f a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time.” The advisory committee notes to the rule explain that it “is an expression of the rule of completeness.”

         “Generally, when part of a defendant's post-arrest statement is introduced into evidence, the defendant has the right to have the entire statement introduced.” United States v. Smith, 794 F.2d 1333, 1335 (7th Cir. 1986) (citing United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1992) (quoting United States v. Wenzel, 311 F.2d 164, 168 (4th Cir. 1962)). “This rule is sometimes referred to as the rule of completeness.” Id. The Seventh Circuit has noted, however, that there are limitations on this rule. For example, if portions of a non-testifying defendant's post-arrest statement inculpate a co-defendant, those portions must be excluded to avoid violating the co-defendant's right to confrontation. Id. (citing, among others, Bruton v. United States, 391 U.S. 123 (1968)).

A further limitation on the rule of completeness, applicable in all cases, arises when the prosecution seeks only to introduce a portion of the defendant's statement. There, the defendant still has the right to introduce additional portions of his statement. But, this right does not entitle the defendant to introduce portions of his statement that are neither explanatory of nor relevant to those portions of the statement introduced by the prosecution. United States v. Marin, 669 F.2d 73');">669 F.2d 73, 84-85 (2d Cir. 1982) (citing United States v. McCorkle, 411 F.2d 482, 486-87 (7th Cir.), cert. denied, 423 U.S. 826 . . . (1975)).

Id. at 1335.

         United States v. LeFevour, 798 F.2d 977 (7th Cir. 1986) involved the appeal of one of the state-court judges convicted in “Operation Greylord, ” Richard Lefevour. Among other things, LeFevour proposed a scheme by which police officers, including one named McCauslin, would serve arrest warrants on people with ten or more unpaid parking tickets, then offer to settle with the person for half the fine and pay the “settlement” to LeFevour, who would dismiss the charges and recall the warrant. Id. at 979. McCauslin made a recording of a conversation he had with LeFevour, in which he told LeFevour that he'd been subpoenaed by a grand jury and asked LeFevour's advice. Id. at 980. LeFevour told McCauslin not to worry and to get in touch with McCauslin's lawyer, a man named Seymour Vishny; McCauslin suggested that he and LeFevour communicate through Vishny. Id. After McCauslin left LeFevour, he spoke with the FBI and said he'd “put on his best scare act” with LeFevour; the recorder was still running, and this statement was recorded. Id. Defendant LeFevour asked the trial court to admit McCauslin's statement about putting on his “scare act, ” but the trial judge found the statement inadmissible “because it would confuse the jury and was not relevant to impeaching McCauslin's testimony.” Id.

         On appeal, LeFevour argued that the trial judge should have allowed him to pay the rest of the recording under Rule 106. Id. at 981. The Seventh Circuit first discussed the government's reason for playing the recording:

The government's purpose in placing the tape recording in evidence was to show that LeFevour knew that McCauslin's lawyer was Seymour Vishny; this was relevant in light of evidence . . . connecting Vishny with LeFevour's efforts to conceal his corrupt practices. If the government had excised portions of the conversation between McCauslin and LeFevour and as a result had conveyed a misleading impression, Rule 106 would have entitled LeFevour to play the rest of the taped conversation to the jury-and to do so right after the government had played its portion of the tape (“contemporaneously”), so that the jury would not be left with a false impression that might prove indelible. But the government played the whole conversation; what it left out was a separate conversation between McCauslin and the agents. If the separate conversation had been on a different tape, the weakness of LeFevour's argument under Rule 106 would be transparent-though not just because of the accident of there being two reels of tape rather than one; a letter and the reply to it are a unit for the purposes of Rule 106, see 21 Wright & Graham [Federal Practice and Procedure], § 5078, at p. 372 and n. 6. But there is no logical connection between the two conversations that McCauslin had, at least given the very limited use that the government made of the first one.


         The court went on to explain,

The purpose of the “completeness” rule codified in Rule 106 is merely to make sure that a misleading impression created by taking matters out of context is corrected on the spot, because of “the inadequacy of repair work when delayed to a point later in the trial.” Notes of Advisory Comm. on Proposed Rule 106. An example would be accusing the Biblical David of blasphemy for saying, “There is no God, ” his full statement being, “The fool hath said in his heart, there is no God.” Trial of Algernon Sidney, 9 Howell's State Trials 818, 868-69 (K.B. 1683). We are far from that paradigmatic case here. No misleading impression was corrected by stopping the tape before McCauslin told the agents that he had “put on his best scare act.” If he had scared LeFevour into saying something incriminating, there might be some point to allowing the jury to hear McCauslin admit having tried to manipulate the conversation. But really the only point of placing the recording of the conversation in evidence was to show that LeFevour knew of Vishny's representation of McCauslin and acceded to the latter's suggestion that Vishny be their go-between; and to that purpose the talk of a “scare act” was irrelevant. If the purpose of the scare act was to get LeFevour to make incriminating statements, if failed.
Although an argument can be made that McCauslin's inability to frighten LeFevour into making incriminating statements is evidence that LeFevour was innocent, the argument is too tenuous to require the admission of the end of the tape. LeFevour himself argues only that the conversation with the agents should have been put into evidence for the sake of completeness. But the only thing the conversation with LeFevour showed-that McCauslin would be dealing with LeFevour through Vishny-was complete in itself, without reference to the “scare act.” See United States v. Garrett, 716 F.2d 257, 271-72 (5th Cir. 1982).

Id. at 981-82.

         Just under a year later, the Seventh Circuit issued an en banc decision in United States v. Sweiss, 814 F.2d 1208 (7th Cir. 1987). The defendant was charged with conspiracy to commit arson and aiding and abetting arson. Id. at 1209. His co-conspirator Faraj was arrested, and after his arrest, wore a wire and recorded two conversations with the defendant-one in August and one in September 1984. Id. At trial, the government introduced the recording of the September conversation, but when the defense offered the August conversation, the district court refused to admit it. Id.

. . . During the September conversation, Faraj and Moses [Sweiss] discussed how Faraj could flee to Mexico and how Faraj had been solicited to bomb the One Stop grocery store. Although Sweiss did not say anything in the conversation that directly incriminated himself, the government argued to the jury that his statements implicated him in the crime.
In his opening and rebuttal arguments the prosecutor stressed the importance of the September conversation. He told the jury that “the big evidence against Moses Sweiss is his own words” from the September tape. The prosecutor argued that the September conversation showed that: (1) Moses Sweiss had solicited Faraj to commit the arson; (2) by implication Sweiss admitted that the solicitation conversation occurred; and (3) because Sweiss knew the details of Faraj's plans to flee the country he was a participant in those plans. The government also argued that an individual named Adnan [Eddie] Al-Abbasi had witnessed the solicitation conversation. Abbasi was a key government witness. His testimony fully corroborated Faraj's . . . testimony. Moreover, Abbasi testified that he witnessed Sweiss' offer of $5, 000 to destroy the One Stop. Abbasi also testified as to another conversation with Sweiss concerning the destruction of the One Stop.
The defense argues that the conversation recorded on August 14, 2918, shows that these contentions are not true. First, the defense argues that when Faraj initially told Sweiss during the August conversation that “everyone, ” including his “lawyer and all the Arabs, ” were pressuring him to name Moses Sweiss as the one who solicited Faraj to commit the arson, Sweiss clearly was shocked and strongly denied any involvement. Second, the defendant protests the prosecution's assertion that in the September conversation when Faraj mentioned a witness who would corroborate the solicitation conversation and Sweiss responded, “Do you mean Adnan?” (referring to Eddie Al-Abbasi's formal name), that this meant Sweiss knew of a witness. The defense argues that it was Faraj who volunteered Eddie as the corroborating witness, and that when he did, Sweiss did not know whom Faraj was talking about. The defense also argues that in the August tape-recorded conversation, when Faraj first told Sweiss he would say there was a solicitation conversation, Sweiss strongly denied that such a conversation had occurred. Finally, the defense argues that in the September conversation Sweiss had knowledge of Faraj's plans to flee the country only because Faraj had told Sweiss of his travel plans during the August conversation. Sweiss' defense was, therefore, partly based on a theory that the information concerning the bombing solicitation, and the escape that he discussed in the September conversation, were told to him by Faraj during the August conversation.

Id. at 1209-10.

         On appeal, the defendant argued that Rule 106 required the trial court to admit the recording of the August conversation. Id. at 1211. The court noted that the rule was “circumscribed by two qualifications, ” which were that “[t]he portions sought to be admitted (1) must be relevant to the issues and (2) only those parts which qualify or explain the subject matter of the portion offered by the opponent need be admitted.” Id. at 1211 (quoting United States v. Walker, 652 F.2d 708, 710 (7th Cir. 1981)). Noting that the Second and Third Circuits had “adopted and amplified” the test it had articulated in Walker, the court stated that

[u]nder the doctrine of completeness, another writing or tape recording is “required to be read [or heard] if it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.” [United States v.] Soures, 736 F.2d [87, ] 91 [(3d Cir. 1984), cert. denied, 469 U.S. 1161 . . . (1985)] (citing [United States v.] Marin, 669 F.2d [73, ] 84 [(2d Cir. 1982)].

Id. at 1211-12.

         Applying this test, the court held that the excluded August 1984 conversation, “while perhaps useful to the jury, was not necessary to explain evidence already admitted, ” and thus that “Rule 106 was not implicated.” Id. at 1212.

         LeFevour and Sweiss involved recorded conversations. The Seventh Circuit's decision in United States v. Velasco, 953 F.2d 1467 (7th Cir. 1992) turned to facts more like the defendant's-Rule 106 applied to a post-arrest statement. In Velasco, the defendant sought to admit his entire post-arrest statement, in contrast to the government's request to admit portions of it, and cited Rule 106. Id. at 1474. The Seventh Circuit concluded that the portions of the statement which the defendant wanted to admit were not relevant to the issues in the case. It explained,

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” FED. R. EVID. 401. A fact of consequence critical to the government's case was defendant's guilty knowledge that he possessed cocaine. The prosecution had the testimony of the surveillance team members who observed Garcia-Caban and Velasco look into Garcia-Caban's trunk after Velasco had placed the booster cable box in it, but that alone would not establish that Garcia-Caban knew he possessed cocaine. Thus, the government offered that portion of the defendant's post-arrest statement wherein he stated, “The kilo of coke. [Bruton material deleted]. I opened the trunk [Bruton material deleted] there was a kilos [sic] there then I locked the trunk.” . . . There is nothing in the portions of the defendant's post-arrest statement that he tried to admit under Rule 106 that make the fact of his guilty knowledge more probable or less probable. The unadmitted portions deal solely with the involvement of others, none of whom, with the except of Velasco, were relevant to the government's case. Indeed, the mention of those others might have confused or mislead the jury, which is in fact contrary to Rule 106's purpose to explain, qualify, or place the admitted portion in context.
Our facts are not unlike those in United States v. Dorrell, 758 F.2d 427 (9th Cir. 1985). There, the defendant made a post-arrest statement in which he confessed to the acts charged and explained his political and religious motivations for committing those acts. At his trial, Dorrell was precluded from offering the necessity defense, after which the trial court granted the government's motion to redact from his statement his explanation for his conduct. All that was left was his confession. Holding that the complete text of Dorrell's post-arrest statement was not required under Rule 106, the Ninth Circuit stated that “removing Dorrell's explanation of the political and religious motivations for his actions did not change the meaning of the portions of his confession submitted to the jury. The redaction did not alter the fact that he admitted committing the acts with which he was charged.” Id. at 435. Here, the defendant argues that the unadmitted portions were necessary to explain his theory of the case. But as in Dorrell, these portions were neither relevant, nor necessary to explain his statement that he knew there was cocaine in his trunk. See also United States v. Smith, 794 F.2d 1333, 1336 (8th Cir.), cert. denied, 479 U.S. 938 . . . (1986) (Rule 106 inapplicable because unadmitted portions of defendant's post-arrest statement did not explain the facts disclosed through the admitted portion). We conclude, therefore, that the trial judge did not abuse her discretion to disallow the unadmitted portions of Garcia-Caban's post-arrest statement under Rule 106.

Id. at 1475-76.

         United States v. Paladino, 401 F.3d 471 (7th Cir. 2005) involved the government's use of a redacted deposition-arguably like a redacted version of a post-arrest statement. A jury convicted Paladino and others of “a variety of federal crimes arising out of a scheme to defraud investors that succeeded in fleecing $11 million from the victims.” Id. at 474. Years prior to being charged, the defendant had been deposed in an SEC proceeding, and “in the criminal trial the judge allowed the government to present a severely cropped version of the deposition in an effort to demonstrate his guilty knowledge.” Id. at 476. On appeal, the Seventh Circuit found that in allowing the government to present the edited deposition, the trial judge violated Rule 106. Id. The court explained:

. . . An issue of great importance to Paladino's guilt or innocence was whether he knew that money in a certain account was money of investors (“invested money” or “investment money”)-which as soon as it was received was checked out to him and the other defendants without ever being invested-or proceeds of legitimate transactions (“trade money”). Asked at the deposition about his knowledge of the invested money, he said: “I learned that this money that's been coming in was investment money, and I was totally surprised because I assumed this whole time that this was trade money.” The government put a period after “investment money” and deleted the rest of Paladino's answer. The difference between “I learned” and “I was surprised to learn” is subtle but potentially important; if Paladino wasn't surprised to learn that investor money was being misapplied, this would suggest that he had previous knowledge of the fraud, which he denied.
There were other harmful deletions. For example, handed during his deposition a “secured investor program agreement, ” Paladino said it “looks familiar” but added that he hadn't seen it until after the scheme had ended and the SEC had filed suit. The judge allowed the government to delete the addition even though, since Paladino's guilt depended on what he knew when, the date on which he first saw the document was crucial.
In permitting the government to make this and other misleading deletions, the trial judge violated Fed.R.Evid. 106, which provides, so far as bears on this case, that when one party introduces in evidence a part of a writing, his opponent “may require the introduction . . of any other part . . which ought in fairness to be considered contemporaneously with it.”

Id. (citations omitted).

         Six years later, the court again addressed Rule 106 in the context of a post-arrest statement. In United States v. Lewis, 641 F.3d 773 (7th Cir. 2011), an agent testified at trial about the defendant's post-arrest statement. On cross-examination, the defendant tried to ask the agent about portions of the statement to which the agent had not testified, to show that he'd not mentioned certain alleged co-actors in the statement. Id. at 784. The government objected on hearsay grounds, to which the defendant responded that he wasn't trying to admit the statements for the truth of the matter they asserted. Id. “The judge upheld the government's objection, and pointed out that if [the defendant] wanted to advance a defense theory about what he knew or didn't know at the time, he was certainly welcome to do so by taking the stand.” Id.

         On appeal, the defendant argued that Rule 106 required the trial judge to overrule the government's objection and admit the statements. Id. at 785. The Seventh Circuit explained that

Under [the doctrine of completeness], a complete statement is required to be read or heard when “it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding. United States v. Sweiss, 814 F.2d 1208, 1211-12 (7th Cir. 1987). “The completeness doctrine does not, however, require introduction of portions of a statement that are neither explanatory of nor relevant to the admitted passages.” United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982).


         The Lewis court concluded that the agent had not indicated on direct exam that the defendant had interacted with the co-actors about whom he was concerned, and that his effort to argue that certain portions of the agent's testimony might lead a jury to conclude that he had was “merely explanatory of his theory of the case.” Id. The court disagreed that the doctrine of completeness required the trial judge to allow the defendant to elicit hearsay on cross. Id.

         In early 2012, the court returned to the context of recorded statements. In United States v. Reese, 666 F.3d 1007 (7th Cir. 2012), the jury found the defendant (a building inspector for the City of Chicago) guilty of conspiracy to commit bribery and making false statements to federal agents. The government presented recordings of conversations in the fall of 2006 between the defendant and a confidential informant. Id. at 1013. It also introduced “a month-by-month summary of the number and duration of calls between [the defendant] and his alleged coconspirators during 2005, 2006, and part of 2007.” Id. On appeal, the defendant argued that the trial court should have admitted recordings from conversations he had in 2007 with one of his co-conspirators, Romasanta, under Rule 106. Id. at 1019. After reciting the rule, the Seventh Circuit explained that

. . . [t]he purpose of the rule is “to prevent a party from misleading the jury by allowing into the record relevant portions of the excluded testimony which clarify or explain the part already received.” United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996); see also United States v. LeFevour, 798 F.2d 977, 981 (7th Cir. 1986) (otherwise inadmissible evidence may be admissible under Rule 106 to correct a misleading impression or else the misleading impression must be excluded). Rule 106 also applies to oral, nonrecorded statements. [United States v.] Price, 516 F.3d [597, ] 604 [(7th Cir. 2008)].
To admit evidence under Rule 106, a court must find that the evidence is relevant to the issues of the case. United States v. Velasco, 953 F.2d 1467, 1474-75 (7th Cir. 1992). If the evidence is relevant, the court considers the following factors: whether (1) the proposed evidence explains the admitted evidence; (2) the proposed evidence places the admitted evidence in context; (3) admission of the proposed evidence will avoid misleading the trier of fact; and (4) admitting the proposed evidence will insure a fair and ...

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