Confronting the Company: Corporate Guilty Pleas as Evidence in Criminal Trials

Prior to 2004, district courts in the Second Circuit routinely admitted into evidence the criminal plea allocutions of individual defendants in trials of their alleged co-conspirators, without subjecting the declarants to cross-examination. See, e.g., U.S. v. Becker, 502 F.3d 122, 129 (2d Cir. 2007) (noting that pre-2004, “we regularly approved the admission of an unavailable witness's plea allocution to prove the existence and scope of a conspiracy, and-so long as they were accompanied by particular guarantees of trustworthiness-we rejected the argument that such statements violate the Confrontation Clause”). Such allocutions consist of an admission by an individual defendant, in the course of a guilty plea under oath, of criminal conduct in which that individual directly participated. Those admissions, to properly support the guilty plea, had to encompass the defendant's personal knowledge and state of mind at the time of the criminal conduct. The evidentiary theory for allowing those admissions in a case against a co-conspirator was that the statement was against the declarant's penal interest, and therefore admissible under Federal Rule of Evidence 804(b)(3), provided it was accompanied by “particularized guarantees of trustworthiness.” This practice changed in 2004, when the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), held that out-of-court statements by an unavailable declarant were “testimonial,” and therefore inadmissible, unless the defendant was afforded a prior opportunity to cross-examine the declarant as guaranteed by the Confrontation Clause. Id. at 68-69 (“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”). In Crawford, the defendant was denied the opportunity to cross-examine a participant-eyewitness to the crime. Following Crawford, the Second Circuit similarly held that plea allocutions of co-conspirators are “testimonial hearsay … inadmissible under the Confrontation Clause unless the co-conspirator testifies at trial, or is unavailable at trial and the defendant had a prior opportunity for cross-examination.” U.S. v. Hardwick, 523 F.3d 94, 98 (2d Cir. 2008); see also, Becker, 502 F.3d at 129-30 (“[P]lea allocutions are testimonial, and are therefore subject to the requirements set forth in Crawford.”).

The Usher Ruling

A current case in the Southern District has extended the Crawford rule to allow the guilty pleas of corporate co-conspirators into evidence, provided that a representative of the corporation takes the stand to submit to cross-examination. See, Decision & Order, U.S. v. Usher, No. 1:17-cr-00019-RMB (S.D.N.Y. Sept. 24, 2018) (Order). The problem? Unlike the individual co-conspirator defendant, the representative of the corporation did not personally participate in criminal conduct-the only conduct he or she engaged in was to sign a corporate plea agreement as part of his or her lawful employment with the corporate entity. Thus, cross-examination of the representative does not cure the Crawford issue.