USA v. Silva, Juan J. (ND Ind., Judge Lozano)
Before POSNER, EASTERBROOK, and MANION, Circuit Judges.USA v. Johnson, Antoine (ND Ill.)
EASTERBROOK, Circuit Judge. Juan Silva was the subject of an extensive undercover operation that included a confidential informant, ground and aerial surveillance, and tape-recorded conversations. A jury convicted Silva of conspiracy and possession with intent to distribute methamphetamine. Sentenced to 121 months’ imprisonment, he argues on appeal that he was convicted on the basis of hearsay and is entitled to a new trial.A few examples of the evidence to which he objected will suffice. * * *
The district judge overruled hearsay objections and instructed the jury that the evidence was “not being offered for the truth of the matter.” That’s surprising, for the evidence directly inculpated Silva. See Fed. R. Evid. 801(c). Perhaps its admission could have been justified under the co-conspirator exception to the hearsay rule. See Fed. R. Evid. 801(d)(2)(E). Yet this is not what the prosecutor contended, and the judge did not find that the speakers were Silva’s confederates and that the declarations had been in furtherance of a joint enterprise. * * *
Perhaps all of this could be dismissed as harmless. The record has plenty of admissible evidence, and the judge did tell the jury that the contested evidence had not been admitted for a substantive use. Come the closing argument, however, the prosecutor explicitly used some of the hearsay as evidence of Silva’s guilt. Defense counsel objected to the violation of the court’s rulings that the evidence was not to be used to show Silva’s culpability. * * *
Silva’s brief complained at length about the closing argument and the judge’s failure to stop the prosecutor in his tracks. The brief for the United States, by contrast, ignored the subject. The prosecutor has not attempted to justify the closing argument or the judge’s perplexing instruction. And by ignoring the subject the United States has forfeited any opportunity to contend that the error was harmless. We decline to exercise our discretion to invoke the harmless- error doctrine on our own. [cites omitted] Far too much use was made of hearsay in this trial. Silva is entitled to another.
REVERSED AND REMANDED
Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.Posted by Marcia Oddi at August 18, 2004 11:35 AM
POSNER, Circuit Judge. The defendant, convicted of drug and counterfeiting offenses in separate proceedings later consolidated, appeals only from the denial of his motion to suppress evidence that he contends was seized in violation of the Fourth Amendment. The appeal requires us to consider the scope of the “independent source” and “inevitable discovery” doctrines—doctrines that are so similar that we’re not sure which one rules this case. The “independent source” doctrine allows the government to use evidence that it obtained both illegally and legally, as when evidence first found in an illegal search is later rediscovered in a legal one. Murray v. United States, 487 U.S. 533, 537 (1988). The “inevitable discovery” doctrine allows the government to use evidence that it obtained illegally but would have obtained legally in any event. The question in this case is whether it matters if the evidence seized illegally from the defendant had an alternative source in another illegal search but one that the defendant could not have challenged directly.Proliferation of legal categories is a chronic problem for American law, as it deflects attention from practical to definitional concerns. The independent-source and inevitable discovery doctrines are easily collapsed into the familiar rule of tort law that a person can’t complain about a violation of his rights if the same injury would have occurred even if they had not been violated. To punish a person for an act that does no harm is not required in order to deter harmful acts. But this is in general, not in every case; the defendant, Antoine Johnson, is arguing in effect for an exception to the tort rule. [What follows is a terse analysis not readily summarized, including this: "The First Circuit’s analysis is at once complex and spongy, as well as inconsistent with the logic of the independentsource/
inevitable-discovery doctrine."]Because our decision creates an intercircuit conflict, it was circulated to the full court in advance of publication, pursuant to 7th Cir. R. 40(e). No judge voted to hear the case en banc.
REVERSED AND REMANDED.