Trentadue v United States Central Intelligence Agency

Filing 213

MEMORANDUM DECISION and Order Setting Evidentiary Hearing on Witness Tampering Allegations-granting 191 Motion to Strike ; denying 203 Motion to Strike ; ( Form due by 9/10/2014., Evidentiary Hearing set for 11/13/2014 10:00 AM in Rm 8.100 before Judge Clark Waddoups, with the possibility of extending to 11/14/14 if necessary) See Order for details. Signed by Judge Clark Waddoups on 8/26/14. Court Address: NEW COURTHOUSE - 351 South West Temple, Salt Lake City, Utah(jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

JESSE TRENTADUE,

MEMORANDUM DECISION AND
ORDER SETTING EVIDENTIARY
HEARING ON WITNESS TAMPERING
ALLEGATIONS

Plaintiff,
v.
UNITED STATES CENTRAL
INTELLIGENCE AGENCY, et al.

Case No. 2:08-cv-0788
Judge Clark Waddoups

Defendants.

On August 25, 2014, the court heard oral argument on Plaintiff’s Motion to Strike August
25, 2014 Hearing (Dkt. No. 191) and Defendant’s Motion to Strike Dkt. Nos. 200 & 201 (Sworn
Declarations of Plaintiff and Mr. Roger Charles in Support of Plaintiff’s Motion to Strike August
25, 2014 Hearing) (Dkt. No. 203). Plaintiff represented himself pro se and Defendant FBI was
represented by Kathryn L. Wyer and Adam C. Siple.
For the reasons stated on the record, the court GRANTS Plaintiff’s Motion (Dkt. No.
191) and DENIES Defendant’s Motion (Dkt. No. 203).
As explained by Plaintiff, his Motion to Strike was more in the nature of a motion to
expand the evidentiary hearing to focus on individuals who apparently had contact with Mr. John
Matthews, a witness whom Plaintiff had identified to be called during the recent bench trial by
video conference but who declined to appear at the last moment. The court agrees that, with the
information provided in the two sworn Declarations provided by Plaintiff, one of which by
Plaintiff himself as an officer of the court, the current record at least permits a reasonable

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inference of wrongdoing by Defendant or its agents in influencing Mr. Matthews not to testify, a
problem addressed by Rule 804(b)(6) of the Federal Rules of Evidence, which is “a prophylactic
rule to deal with abhorrent behavior ‘which strikes at the heart of the system of justice itself.’”
Fed. R. Evid. 804(b)(6), advisory committee’s note (1997) (quoting U.S. v. Mastrangelo, 693
F.2d 269, 273 (2d Cir. 1982)). The current state of the record creates this ambiguity and
necessitates the evidentiary hearing for which Plaintiff has moved so that the court can exercise
its “ability . . . to protect the integrity of [its] proceedings.” Davis v. Washington, 547 U.S. 813,
834 (2006).
Rule 804(b)(6) of the Federal Rules of Evidence, titled “Forefeiture by wrongdoing,”
codifies the long-standing “forfeiture doctrine” in the common law. See Giles v. California, 554
U.S. 353, 359-368 (2008) (reviewing the history of the forfeiture doctrine from its historical
roots in Lord Morley’s Case, 6 How. St. Tr. 769, 771 (H. L. 1666) to the present). Under the
codified forfeiture doctrine, also referred to as “waiver by misconduct,” U.S. v. Cherry, 217 F.3d
811, 815 (10th Cir. 2000), an unavailable witness’s prior statement is not excluded by the rule
against hearsay if it is a “statement offered against a party that wrongfully caused—or
acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so
intending that result.” Fed. R. Evid. 804(b)(6).
In circumstances in which a witness is unavailable to testify at trial due to the alleged
misconduct of one of the parties, an evidentiary hearing is appropriate to determine whether the
party alleging misconduct can show, by a preponderance of the evidence, that the opposing
party’s wrongdoing made the witness unavailable. Cherry, 217 F.3d at 815 (citing Fed. R. Evid.
804(b)(6), advisory committee’s note (“The usual Rule 104(a) preponderance of the evidence
standard has been adopted in light of the behavior new Rule 804(b)(6) seeks to discourage.”)).

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The “behavior” the Rule “seeks to discourage”—the “wrongdoing” referred to in the Rule—is
not explicitly defined in the Rule itself. U.S. v. Scott, 284 F.3d 758, 763 (7th Cir. 2002). But
since “[t]he [advisory committee’s] notes make clear that the rule applies to all parties, including
the government,” the “wrongdoing” referred to in the Rule is not limited to murder and physical
assault used by a criminal defendant in preventing witnesses from testifying. Id. at 764. Rather,
the Seventh Circuit held, and the court finds instructive, that “applying pressure on a potential
witness not to testify, including by threats of harm and suggestions of future retribution, is
wrongdoing” for purposes of the Rule. Id. (citing Steele v. Taylor, 684 F.2d 1193, 1201 (6th Cir.
1982) (noting that wrongful conduct includes the use of force and threats, and “persuasion and
control” by a defendant)).
Because this is an evidentiary hearing conducted to resolve a “preliminary question”
about whether evidence is admissible, “the court is not bound by evidence rules, except those on
privilege,” meaning that it may consider hearsay as it deems necessary to resolve the question.
Fed. R. Evid. 104(a). As the D.C. Circuit has explained, “[t]here is, in any event, no bar to partial
reliance on hearsay for such preliminary decisions.” U.S. v. White, 116 F.3d 903, 914 (D.C. Cir.
1997). “Because a judge, unlike a jury, can bring considerable experience and knowledge to bear
on the issue of how much weight to give to the evidence . . . it is within the judge’s discretion to
admit hearsay evidence that has at least some degree of reliability.” Id. Thus, Plaintiff’s and Mr.
Charles’s sworn Declarations need not be stricken for purposes of this determination on the basis
that they contain hearsay, particularly in light of other indicia of reliability in them, such as
reference to the details surrounding specific conversations and communications (including, for
example, the date and means of the communications) with Mr. Matthews. Moreover, because
“the standard of reliability and trustworthiness should be relaxed when the defendants are at fault

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in causing the unavailability of the witness . . . [t]he evidence admitted as a result of such
wrongful conduct includes uncross-examined statements such as grand jury testimony and prior
extra-judicial statements, as well as cross-examined statements such as depositions and former
testimony.” Steele, 684 F.2d at 1201 (emphasis added).
By contrast, at least on the record as it currently stands (which forms part of the
justification for holding an evidentiary hearing to resolve this question of admissibility), the
Seventh Circuit’s logic in Scott is persuasive as to a lack of indicia of reliability in Matthews’
email of August 2, 2014 (Dkt. No. 191-10):
It seems almost certain that, in a case involving coercion or threats, a witness who
refuses to testify at trial will not testify to the actions procuring his or her
unavailability. It would not serve the goal of Rule 804(b)(6) to hold that
circumstantial evidence cannot support a finding of coercion. Were we to hold
otherwise, defendants would have a perverse incentive to cover up wrongdoing
with still more wrongdoing, to the loss of probative evidence at trial.
284 F.3d at 764. Mr. Matthews’ email, relied upon by Defendant to counter Plaintiff’s present
allegations, is also hearsay and, in light of this logic in Scott, actually lacks indicia of reliability,
under the present allegations, that are present with regard to his contradictory hearsay statements
that appear in Plaintiff’s and Mr. Charles’s sworn Declarations. (See, e.g. Decl. Jesse Trentadue
¶¶ 12-13 [Dkt. No. 201].) An evidentiary hearing will allow cross-examination of those people
with whom Mr. Matthews communicated about his upcoming trial testimony and his decision not
to testify, such as Agent Adam Quirk, and Plaintiff and Mr. Charles, and will give Defendant, in
its discretion, the opportunity to investigate the involvement of Mr. Don Jarrett, as mentioned in
Mr. Matthews’s August 2, 2014 email. (See Dkt. No. 191-10.)
The ultimate outcome of this unfortunate turn of events is the possible application of the
Adverse Inference Rule against Defendant should the court find, at the conclusion of the
evidentiary hearing, that Defendant has “wrongfully caused—or acquiesced in wrongfully
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causing—[Mr. Matthews’s] unavailability as a witness, and did so intending that result.” Fed. R.
Evid. 804(b)(6). This would have implications for Plaintiff’s proffer of Mr. Matthews’s
testimony in the bench trial—possibly requiring, as Plaintiff has requested, the reopening of the
bench trial “for the limited purpose of allowing Plaintiff to put into evidence his proffer as to
what Matthews told him about PATCON” (Pl.’s Resp. Def.’s Mot. Strike 11 [Dkt. No. 210])—
because, under the Adverse Inference Rule, “[a]n attempt by a litigant to persuade a witness not
to testify is properly admissible against him as an indication of his own belief that his claim is
weak or unfounded or false.” Ty Inc. v. Softbelly’s Inc., 353 F.3d 528, 534 (7th Cir. 2003). In the
Tenth Circuit, as elsewhere, the Adverse Inference Rule may be invoked where “the evidence is
available to the suppressing party, but not to the party seeking production [and] it appears that
there has been actual suppression nor withholding of evidence.” Chem. Weapons Working Group
v. U.S. Dep’t of Def., 61 Fed. Appx. 556, 562-63 (10th Cir. 2003).
Accordingly, the court therefore GRANTS Plaintiff’s motion to expand the nature of the
requested evidentiary hearing (Dkt. No. 191) and DENIES Defendant’s Motion to Strike
Plaintiff’s and Mr. Charles’s Declarations (Dkt. No. 203). The evidentiary hearing is set for
November 13, 2014 at 10:00 a.m., with the possibility of extending to November 14, 2014, if
necessary. Defendant shall conduct an investigation of any communications between the FBI and
Mr. Matthews, or others acting at the behest of the FBI, including ascertaining what documents
have been created relating to such communication and make a report to the court sufficiently in
advance of the hearing so that Plaintiff can prepare subpoenas, if necessary, and prepare
document requests. The court stresses that it wishes to resolve this issue based on the testimony
and evidence offered at the evidentiary hearing. The parties will have an opportunity for briefing
and oral argument in a separate hearing following the evidentiary hearing.

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SO ORDERED this 26th day of August, 2014.
BY THE COURT:

_________________________________
Clark Waddoups
United States District Judge

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