United States v. Thurman (915 F. Supp. 2d 836, 2013)

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN II, District Judge.

The Government has made pretrial motions for the admissibility of certain recorded jailhouse telephone conversations and for the testimony of a confidential source. All of which is to be used against Defendants in this case. The Court referred the matter to the Magistrate Judge who has produced a comprehensive seventy-four (74) page report and recommendation addressing each matter at issue.

The charges against Thurman and Robinson are that they conspired to use or attempt to use force and threats against a potential witness (“G.S.”) to prevent his testimony against Ricky Kelly in his murder trial. Thurman was an administrative assistant in the office of Kate Holmes, G.S.’s attorney. In that capacity she had access to many of his confidential attorney-client materials. Thurman resided with Robinson in a house at 525 Belgravia Court in Louisville. Moreover, Robinson was apparently a long-time friend of Kelly.

Two types of evidence are involved here: (1) sixteen (16) jailhouse phones between Kelly, an inmate at the Green River Correctional Complex and several other individuals on the outside, and (2) testimony of a cooperating witness (“C.S.”) regarding conversations with Robinson while he was incarcerated in the Franklin County jail.

The Government did not object to the rulings against it. Both Thurman and Robinson did file objections. Thurman focused upon the Magistrate Judge’s admission of the recorded statements in Exhibits 8 (A and B) and 12 because she would be unable to confront Robinson, the witness whose statements would be used against her. Robinson argues that the rulings are premature, that all 16 recorded statements are testimonial in nature and also makes other specific objection to particular recorded calls and jailhouse conversation testimony from C.S.

The Court has carefully reviewed the Magistrate Judge’s recommendations and the objections to it. It is fair to say that these are reasonably nuance issues, the resolution of which could depend upon the credibility of. other testimony and which rely upon foundations established by other witnesses. Consequently, at best, these rulings must be considered provisional pending actual testimony at trial. The Court does not mean to suggest that the rulings are likely to change, only that the underpinning of them rest upon the assumption about certain trial testimony. Thus, the Court would retain the right to refine and revise any rulings here as the trial approaches and proceeds.

Having said all this, the Court concludes that it agrees substantially with the Magistrate Judge’s analysis and that no further comment is necessary or helpful. Therefore, the Court will adopt the Magistrate Judge’s recommendations in full at this time.

Being otherwise sufficiently advised,

IT IS HEREBY ORDERED that the Magistrate Judge’s report and recommendation is ADOPTED in full and that that report will guide the Court’s admission of evidence at trial.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION

DAVE WHALIN, United States Magistrate Judge.

FINDINGS OF FACT

The District Court has referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A), pre-trial motions (DN 59). All four involve a dispute over the admissibility of certain recorded jailhouse telephone conversations and the anticipated testimony of a confidential source (DN 36, 46, 48, 67). The conversations are part of the Government’s prosecution against two Defendants, Shanion Thurman and James Robinson, who are charged by indictment with aiding one another to use and attempt to use physical force or threats of force against a potential witness, G.S., with the intent to delay or prevent his testimony against nondefendant Ricky Kelly.

Ricky Kelly and another individual, Dion Neal, are charged by a separate, prior federal indictment, United States v. Kelly, 3:11-CR-33-H, with the murder-for-hire of victim Lajuante Jackson. Proof for the Government at trial of the present case against Thurman and Robinson is expected to be that G.S. had arranged through his attorney, Kate Holmes of the Kentucky Dept. of Public Advocacy (DPA), to testify against Kelly concerning the Jackson murder and two other murders in which Kelly is allegedly involved in return for early release from state prison. This arrangement was set out in a written confidential cooperation agreement between G.S. and federal and state prosecutors in late March of 2010. The confidential agreement was mailed to the Oldham County DPA office of attorney Holmes on April 2, 2010. At that time, Defendant Shanion Thurman was employed as an administrative assistant to Holmes in the same office. The Government maintains that Thurman consequently had access to all of Holmes’ client records including the confidential cooperation agreement of G.S.

The Government will offer proof that during this time in April of 2010, Thurman resided with co-defendant James L. Robinson in Louisville, Kentucky, at 525 Belgravia Ct., Apt. 4. James Robinson, as it turns out, is a lifelong friend of Ricky Kelly. The Government intends to prove this friendship by the introduction of various recorded jailhouse phone conversations involving Kelly and Robinson, as well as other recorded conversations involving Kelly and certain non-parties that include his brother, Terrell “Cam” Gray, and friends Latasha Downs, Tonya Masden, Tiffany Roberts and Kalila Brooks. This friendship in the Government’s view explains much of what occurred next in April of 2010.

The Government asserts that within less than one week of the delivery of the written confidential cooperation agreement to attorney Holmes’ office, G.S. was violently assaulted on April 7, 2010 at the Franklin County Jail where he had been relocated. Four days later, on April 11, Terrell Gray advised Kelly during a recorded jailhouse phone conversation that an individual referred to by Gray as “Little G” was cooperating with “the Feds” or the “homicide people about you.” (DN 67, Ex. 9). This recorded conversation is but one of 16 jailhouse calls that the Government seeks to introduce against Robinson and Thurman at trial.

Two more such recorded phone conversations occurred that evening between Kelly and non-party Tiffany Roberts (DN 67, Ex. 10, 11). During the first such call, at approximately 8 p.m., Kelly asked Roberts to use her computer to find out which state correctional facility housed G.S. (DN 67, Ex. 10). Later at approximately 11:30 p.m., Kelly again called Roberts in another recorded phone conversation during which Roberts provided Kelly with a physical description of G.S., his criminal record, inmate numbers and presumed location (DN 67, Ex. 11).

The very next day, on April 12, Kelly and Defendant Robinson had a lengthy conversation (DN 67, Ex. 13). During this exchange, Defendant Robinson, using guarded language, informed Kelly about the assault on G.S. several days earlier and about the written confidential cooperation agreement (Id.). Robinson advised Kelly that G.S. had provided information about three alleged murders. (Id. at 2). He further told Kelly that “she,” codefendant Thurman according to the Government’s theory, had only given Robinson information about the cooperation of G. S., and not two other unnamed individuals who also allegedly were cooperating with law enforcement to testify about Kelly’s involvement in seven other murders. (Id.).

During the same recorded conversation, Robinson also referred to a signed statement by G.S. involving Kelly (Id. at 3) and that Robinson had to get the information to Kelly through his brother (Id. at 4). Robinson then promised during the recorded phone exchange that if he could get the paperwork on the other two cooperating informants, he would let Kelly know. (Id. at 5). Robinson assured Kelly that he had seen the paperwork and that G.S., a persistent felony offender, was to be released in five months to home incarceration and was to have visitation with his daughter in return for his cooperation against Kelly. Robinson told Kelly that these terms were “in black and white” and “I wasn’t supposed to see it, but I seen it....” (DN 67, p. 6).

Robinson repeated that G.S. had been beaten up a week earlier after Robinson found out. (Id. at 7). Robinson assured Kelly that he would try to get “all the information” that he could about the other two suspected informants. (Id. at 8). The Government now seeks to introduce into evidence these recorded phone conversations, along with a number of others, to establish that Defendant Thurman leaked the confidential cooperation agreement to Robinson, who in turn alerted Kelly and his brother, Terrell Gray, about the cooperation of G.S. in three homicide investigations involving Kelly, with the intent to prevent G.S. from testifying.

Because these recorded jailhouse phone calls caused law enforcement to become suspicious that Thurman had leaked the confidential cooperation agreement involving G.S., a sting operation was arranged using Louisville Metro Police Department (LMPD) homicide Sergeant Denny Butler. The Government will offer proof at trial that Sgt. Butler contacted Thurman by telephone at attorney Holmes’ office on July 22, 2010. Butler advised Thurman during their conversation that he would be sending a letter to attorney Holmes by fax, and that the letter contained information about G.S. and his cooperation in the Kelly murder investigation. By prior arrangement, Thurman was the only employee in the office during their conversation. The letter, in fact, was merely a test to determine whether Thurman would leak the contents of the letter to Defendant Robinson or other unknown persons.

Subsequently, on July 25, 2010, Kelly contacted his brother Terrell Gray (DN 67, Ex. 14). During their recorded phone conversation, Terrell advised Kelly that he wanted to show Kelly “this paper” about Greg. (Id.). Fifteen minutes later, Kelly again spoke with Terrell using Tiffany Roberts as an intermediary to connect the two men (DN 67, Ex. 15). Terrell at the outset of their conversation read aloud the entire letter of Sgt. Butler to Kelly (Id. at 1-2). Later that same evening, Kelly and Robinson, again using Tiffany Roberts as an intermediary, spoke in a recorded phone conversation. During the exchange, Kelly asked Roberts to ask Defendant Robinson if he had talked to Tanner (DN 67, Ex. 17). Robinson advised Roberts, and she related to Kelly, that Robinson had given Tanner a “piece of paper a couple of days ago”____ (Id. at 2). The Government maintains that the “piece of paper” referred to in this conversation is Sgt. Butler’s July 22, 2010 letter to Kate Holmes.

Armed with this information from the recorded jailhouse phone calls, law enforcement officials obtained a search warrant for Thurman and Robinson’s Belgravia apartment, as well as their separate automobiles. On August 3, 2010, ATF agents executed the search warrant. The agents found in the glove box of Thurman’s Lexus automobile a copy of G.S.’s confidential cooperation agreement. Later that same afternoon, a criminal complaint was issued against Shanion Thurman for her alleged violation of 18 U.S.C. § 1512(a)(2)(A) & 2 for aiding and abetting witness tampering (DN 1). A separate criminal complaint was issued against James Robinson the same day on the same charge of aiding and abetting witness tampering (DN 1). An indictment against both individuals on these charges was returned approximately two weeks later (DN 10).

The United States has moved the Court now to determine the admissibility of 16 recorded telephone conversations, or portions thereof, involving Ricky Kelly and the other individuals identified above (DN 36, 46). Defendants Robinson and Thurman have each filed a response (DN 53, 54, 55). The United States has filed a reply and addendum (DN 58, 60). Oral argument was initially held before the Magistrate Judge on December 22, 2011 (DN 65). On order of the Magistrate Judge, the United States filed a supplemental motion to admit the recorded calls, along with the testimony of a confidential source (C.S. 1) concerning a series of statements made by Defendant Robinson to C.S. 1 while both men were housed in the Louisville Metro Corrections Jail (DN 67). Defendant Thurman and Robinson have filed responses to the supplemental motion (DN 76, 77). A second hearing was held on Monday, March 19, 2012 (DN 72) with a third and final hearing held on April 9, 2012. Accordingly, the matter is now ripe for consideration.

CONCLUSIONS OF LAW

At issue are two types of evidence that the Government seeks to have admitted at trial. The first category of evidence includes some 16 recorded jailhouse phone calls, or portions of calls, all of which involve Ricky Kelly. The second category of evidence centers on the anticipated testimony of a cooperating source, designated C.S. 1, who the Government will offer at trial to testify about a series of incriminating statements made by James Robinson following his arrest in August of 2010. The Government has offered various theories under the Federal Rules of Evidence to justify the admission of these two categories. See Federal Rules of Evidence (FRE) 402, 801(d)(2), 802, 804(b)(3) and 807. Beyond questions of evidence, the parties also address constitutional issues that arise from the confrontation clause of the Sixth Amendment as interpreted by Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) and its progeny. See, Melendez-Diaz v. Mass., 557 U.S. 305, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009); Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Thus, the admission or the non-admission of the disputed conversations presents complex challenges, not only of law and fact, but organizational ones as well given the sheer magnitude of the statements put at issue.

The procedural posture of this dispute cannot be ignored either. Trial of the charges against Robinson and Thurman is months away. No witnesses have been sworn or testimony taken. The nature and the order of proof is far from resolved. At this point, it is not known who will testify or who will refuse to do so, or be otherwise unavailable to testify. The result is that this report cannot avoid reliance on certain assumptions about the nature of the evidence at trial and the individuals that will testify or be unavailable to do so. To the extent that matters at trial diverge materially from these assumptions, the result of the trial proceedings may well deviate from the contents of this recommendation. With this caveat in mind, the Magistrate Judge turns to the first group of statements that the Government discusses in its supplemental motion to admit recorded calls (DN 67).

a. Defendant Robinson’s Own Statements

The first group of statements to be discussed are those statements that include the out-of-court statements of Defendant Robinson. These statements may be found in exhibits 4, 5, 8A and 8B, 12 and 16, which are also identified by the corresponding letters “d”, “e”, “g”, “k” and “o.” All of these disputed statements are recorded jailhouse conversations with non-party Ricky Kelly. It is presently anticipated that neither Defendant Robinson nor Kelly will testify at trial, but will elect to assert their individual Fifth Amendment privilege if called. This initial group of statements also includes those out-of-court, post-arrest statements allegedly made by Defendant Robinson to C.S. 1, the earlier mentioned jailhouse informant, while the two men were incarcerated together at the Louisville Metro Corrections Jail.

The United States argues that Robinson’s own out-of-court statements are not only relevant to the charged offense within the definition of FRE 401, but also are not subject to exclusion under the general prohibition of the hearsay rule, FRE 802. Citing United States v. Matlock, 415 U.S. 164, 172 n. 8, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) and FRE 801(d)(2)(A), the Government maintains that Defendant Robinson’s own statements are not hearsay when offered against him at trial. Instead, they fall within the category formerly known as “admissions by a party opponent,” which is now referred to under the cited rule as being “an opposing party’s statement.” Because Defendant Robinson is a party opponent to the Government in its prosecution of him and his co-defendant Thurman, the United States concludes that the admission at trial of all of Defendant Thurman’s statements to Ricky Kelly or to C.S. 1 is entirely proper and does not run afoul of the prohibition against the admission of hearsay evidence under FRE 802.

As the Sixth Circuit explained in United States v. McDaniel, 398 F.3d 540, 545 (6th Cir.2005),

Not all out-of-court statements qualify as hearsay, however. For instance, Federal Rule of Evidence 801(d)(2) excludes admissions by a party-opponent (which are offered against the party) from the definition of hearsay because the adversarial process allows the partydeclarant to rebut his or her own admissions by testifying at trial. See, Fed. R.Evid. 802(d)(2) & Advisory Committee’s Notes (“Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule.”)

Id.

Admission of a party opponent’s statement under FRE 801(d)(2)(A) is not dependent on whether the challenged out-of-court statement is inculpatory or exculpatory. McDaniel, 398 F.3d at 545 (citing United States v. Turner, 995 F.2d 1357, 1363 (6th Cir.), cert. denied, 510 U.S. 904, 114 S.Ct. 282, 126 L.Ed.2d 232 (1993) (“On its face, Rule 801(d)(2) does not limit an admission to a statement against interest. Furthermore, this court has refused to place such a limited construction on the scope of an admission.”)). See also, United States v. Slone, 833 F.2d 595, 601 (6th Cir.1987) (exculpatory grand jury testimony given by defendant was admissible under Rule 801(d)(2)).

All that is required for a party opponent’s out-of-court statement to be admitted under FRE 801(d)(2)(A) is that the statement “include some specific fact which tends to establish guilt or some element of the offense.” Turner, 995 F.2d at 1363 (citing Slone, 833 F.2d at 601). Indeed, the primary reason for the amendment of FRE 801(d)(2) in 2011, to replace the term “admissions” with the term “statements” was due to the fact that “the term ‘admissions’ is confusing because not all statements covered by the exclusion are admissions in the colloquial sense — a statement can be within the exclusion even if it ‘admitted’ nothing and was not against the party’s interest when made.” 30B Michael H. Graham, Federal Practice & Procedure, Evidence, Chap. 9B (Thomson 2011). Any contrary interpretation of FRE 801(d)(2) that would attempt to distinguish between exculpatory and inculpatory out-of-court statements by a party opponent would merely confuse the distinctions between FRE 801(d)(2) with FRE 804(b)(3), which creates an exception to the rule against hearsay for statements against interest made by an unavailable declarant.

The application of FRE 801(d)(2)(A) is not unbounded, however. The rule may only be used to support the admission of an out-of-court statement when such statement is offered against that party. See, Stalbosky v. Belew, 205 F.3d 890, 894 (6th Cir.2000) (“Under Rule 801(d)(2)(A), a party’s statement is admissible as non-hearsay only if it is offered against that party.”); see also, United States v. Maliszewski, 161 F.3d 992, 1008 (6th Cir.1998), cert. denied; Villareal v. United States, 525 U.S. 1183, 119 S.Ct. 1126, 143 L.Ed.2d 120 (1999) (Rule 801(d)(2)(A) could not be relied upon to introduce the statement of a former defendant who had pled guilty and was no longer a party at the time of trial).

With the above principles of evidence law in mind, the Court now turns to examine each of the out-of-court statements of Defendant Robinson to determine whether they satisfy the requirements of Rule 801(d)(2)(A), or if the nature of the statements implicates any additional rule of evidence or constitutional concerns.

Exhibits 4 and 5

The first statements of Defendant Robinson that the Government seeks to introduce via FRE 801(d)(2)(A) are found at exhibits 4 and 5, which are alphabetically designated and referred to by the parties in their motion papers as “d.” These two exhibits are excerpts of a recorded phone conversation that occurred on Jan. 28, 2010, during a collect phone call from Ricky Kelly at the Green River Correctional Complex (GRCC) to James Robinson at 7:39 p.m. (DN 67, Ex. 4, 5).

During the first conversation between the two men, contained in exhibit 4, Robinson complains to Kelly that “Gene” keeps contacting him (DN 67, Ex. 4, pp. 1-2). Kelly advises Robinson during this conversation that “the homies” believe that Robinson has access to or possession of Kelly’s property such as money and automobiles (DN 67, Ex. 5, p. 1). Kelly complains further that law enforcement agencies, referred to as “the alphabet boys,” believe that he has money and property hidden (DN 67, Ex. 5, p. 2). During their conversation, Robinson assures Kelly that Kelly is the only person that Robinson will “mess with.” (DN 67, Ex. 4, p. 2). The two men then discuss whether Kelly still has a building on 42nd Street (DN 67, Ex. 4, p. 3). Kelly acknowledges that he still has the building and advises Robinson that he has denied, when asked by “Tanner,” that he gave any property or money to “Jim.” (Id. at 4). Near the conclusion of the first excerpt of their conversation, Robinson affirms to Kelly that Kelly is his best friend since Robinson was five years old and that he has no others (DN 67, Ex. 4, p. 4).

The Court first finds that the substance of exhibits 4 and 5, designed “d,” are clearly relevant to the alleged charge of attempt to tamper with potential witness G.S. under FRE 401. The statements of Robinson establish a deep, lifelong relationship between the two men, a relationship that apparently began when Robinson was no more than five years old. The depth of this relationship is further confirmed by Robinson’s statement denying that he has any other such friends as Kelly. Such a lifelong, close relationship is offered by the Government to explain why Robinson would put himself at risk to obtain sensitive information such as the confidential cooperation agreement and would immediately convey that information to Kelly. Absent the introduction of such evidence at trial, the Government would, have no explanation for the jury as to why Robinson did what he allegedly did in April of 2010. See gen., United States v. Roe, 670 F.2d 956, 971 (11th Cir.1982), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982) (motive of defrauded investors to invest in corporation was relevant to establish their reliance on the misrepresentations by corporate officers); United States v. Talavera, 668 F.2d 625, 630-31 (1st Cir.1982), cert. denied, Pena v. United States, 456 U.S. 978, 102 S.Ct. 2245, 72 L.Ed.2d 853 (1982) (evidence of heroin transaction involving one codefendant, where both were charged only with separate cocaine transaction, was admissible to establish the close relationship between the two defendants).

Both Defendant Robinson and Defendant Thurman argue repeatedly with respect to various out-of-court statements that implicate their respective interests that any minimal probative value of such out-of-court statements as those detailed above is far outweighed under FRE 403 by the unfairly prejudicial nature of the challenged statements. The Defendants maintain that the challenged statements are being used by the Government simply to interject the presence of Ricky Kelly at trial due to his alleged involvement in numerous drug-related murders such as the one involving Lajuante Jackson, now prosecuted in United States v. Kelly, 3:11-CR-33-H. In fact, Thurman argues that Kelly, who is not anticipated to testify at trial, is the invisible “2000 pound gorilla” in the courtroom. (DN 77, p. 19). Robinson and Thurman maintain that the jury simply will not be able to separate any alleged involvement of Kelly in various murders from the far less serious witness tampering charge prosecuted against them.

It is now well settled that “even relevant evidence may constitutionally be excluded ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ ” Alley v. Bell, 307 F.3d 380, 396 (6th Cir.2002) (quoting Sanders v. Freeman, 221 F.3d 846, 859 (6th Cir.2000) (quoting FRE 403)). Evidence which may be admissible under one rule of the Rules of Evidence, i.e., Rule 404(b), must still be shown to have a “probative value” that is “not substantially outweighed by the danger of unfair prejudice under Rule 403.” United States v. Dunn, 805 F.2d 1275, 1280 (6th Cir.1986). Thus, merely because the content of exhibits 4 and 5 may be relevant within the meaning of FRE 401, the trial court could yet exclude them in the exercise of its discretion under FRE 403 if they are found to be unduly prejudicial. See, United States v. Gallo, 763 F.2d 1504, 1525 n. 32 (6th Cir.1985) (“Clearly in reviewing Rule 403 decisions we must apply an ‘abuse of discretion’ standard.”). See also, United States v. Reynolds, 762 F.2d 489, 494 (6th Cir.1985) (“The admission or exclusion of evidence under Rule 403 is within the sound discretion of the trial court.”) (admitting into evidence a conversation that referred to possible future criminal activity was not an abuse of discretion where the conversation was evidence of motive, scheme and intent).

Here, the Government would be hard pressed to bring a prosecution without some mention of Kelly and introduction of the challenged conversations between Robinson and Kelly. The gravamen of the case is that due to Robinson’s lifelong friendship with Kelly, and his access to confidential documents through his girlfriend, Thurman, he obtained the confidential cooperation agreement of a potential witness against Kelly, G. S., and conveyed such information to Kelly in an effort to thwart the ability of G.S. to provide testimony against Kelly. Kelly, by definition, therefore must be included in the Government’s proof at trial.

To what extent the Government may dwell upon Kelly and any allegations of Kelly’s own criminal activity, including alleged homicides, is a matter that simply cannot be resolved until the trial. In other words, were the Government to attempt to introduce into evidence significant details related to the alleged murders by Kelly, including the murder of Lajuante Jackson, then the trial court in the sound exercise of its discretion, might at some point cut short the Government’s efforts. Certainly, no such efforts have been made to date, nor do any of the out-of-court statements sought to be introduced pursuant to FRE 801(d)(2)(A) involve any explicit discussion of Kelly’s own alleged criminal activity, other than perhaps Kelly’s ongoing, vague denials of any such involvement. Nonetheless, given the intended testimony of G.S. against Kelly in Case No. 3:11-CR-33-H, repeated references to Kelly, and Kelly’s own statements in the recorded conversations involving Robinson are unavoidable and, more importantly, not presently excludable under Rule 403.

A helpful Sixth Circuit decision that involves Rule 801(b)(2)(A) is United States v. Henderson, 626 F.3d 326, 337 (6th Cir.2010). In Henderson, an Ohio defendant was charged with the murder of two witnesses in retaliation for their providing information and/or testimony that led to the defendant’s earlier conviction for bank robbery. Henderson, 626 F.3d at 331. At trial on the murder charges, the United States introduced prior out-of-court statements of both of the deceased victims, along with certain recorded prison telephone conversations involving the defendant, Thomas Henderson, and members of his family, after a finding by the trial court that the prior statements of the deceased witnesses, Bass and Washington, were admissible non-testimonial statements under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The court then turned its focus on the defendant’s claim of ineffective assistance of trial counsel based on the failure of trial counsel to object to the introduction of the recorded prison phone calls. During these conversations, the defendant discussed with his family attempts by him to influence witnesses in the murder case, along with his feelings about the death of the two victims. Henderson, 626 F.3d at 337. The Sixth Circuit concluded that the failure of trial counsel to object to the introduction of the statements was not a deficient performance under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so holding, the court explained:

Counsel’s failure to object was not deficient because any hearsay objection would have been overruled. The statements made by Henderson during the conversations were non-hearsay admissions under Federal Rule of Evidence 801(b)(2)(A) and the statements made by others were not admitted to show the truth of the matters asserted, but to prove the context for Henderson’s admissions.

Id. at 337 (citing United States v. Jacob, 377 F.3d 573, 581 (6th Cir.2004)); United States v. Davis, 170 F.3d 617, 627 (6th Cir.1999).

The same is true with respect to exhibits 4 and 5. The out-of-court statements of Defendant Robinson and the responses of non-party Kelly are both relevant and admissible under the rules of evidence cited above. Such statements do not appear to be unduly prejudicial at this point based on the anticipated nature of the proof to be offered at trial.

The sole question remaining with regard to exhibits 4 and 5, designated “d” by the parties, is whether introduction of such out-of-court statements raises constitutional issues under the confrontation clause of the Sixth Amendment. Both Robinson and Thurman question whether the recorded jailhouse conversations are “testimonial” under the standard of Crawford. See gen., Williams v. Illinois, — U.S. —, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). If so, they cannot be introduced at trial by the Government when the declarant is unavailable unless the Defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354. See, United States v. Johnson, 581 F.3d 320, 323-28 (6th Cir.2009), cert. denied, — U.S. —, 130 S.Ct. 3409, 177 L.Ed.2d 326 (2010) (discussing Crawford). The United States argues in response that the nature of the statements made by Kelly and Robinson, informal phone conversations that occurred between close friends, simply are not the type of statements that fall with the “core class of testimonial statements” first mentioned in Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354.

Unfortunately, the Crawford decision did not craft a specific definition of what type of statement is a “testimonial statement” for the purpose of the confrontation clause. Id. at 51-52, 124 S.Ct. 1354. The decision instead provides certain non-exhaustive examples of the core class, which the Court held includes (1) ex parte, in-court testimony or its functional equivalent, (2) extra-judicial statements contained in formalized testimonial materials (affidavits, depositions, prior testimony or confessions) and (3) statements made under such circumstances as would lead an objective witness to reasonably believe that the statement would be available for use later at trial. Id. See, Miller v. Stovall, 608 F.3d 913, 923 (6th Cir.), petition for cert. filed - U.S. -, 132 S.Ct. 573, 181 L.Ed.2d 418 (2011) (discussing Crawford ).

Robinson and Thurman seize on the third and final category of statements to support their argument of the testimonial nature of the recorded jailhouse calls that the Government seeks to introduce against them. Both Defendants point out that all of the individuals involved in these phone calls were well aware that the jailhouse calls were being recorded and that other individuals potentially would be listening to them. This awareness directly led to Kelly and the others speaking in coded language that included street slang and incomplete sentences as a means to prevent those listening in from deciphering the true meaning of the conversation.

Obviously, to Robinson and Thurman, this type of conduct clearly indicates that the speakers held a reasonable belief that their statements might be available for use against them or others later at trial. The Government in response cites several federal district court decisions, which hold that such casual, recorded jailhouse conversations are non-testimonial in nature. See, Malone v. Kramer, 2010 WL 1404286 at *17 (E.D.Cal. Apr. 6, 2010), aff'd, 453 Fed.Appx. 754 (9th Cir.2011), cert. denied, 558 U.S. 1034, 132 S.Ct. 1642, 182 L.Ed.2d 239 (2012) (recorded jailhouse conversations between defendant truck driver charged with murder and his wife were “more closely akin to the ‘offhand, overheard remark’ statements identified in Crawford as not implicating the core concerns of the confrontation clause”); Ibarra v. McDonald, 2011 WL 1585559 at *5 (N.D.Cal. Apr. 26, 2011) (recorded jailhouse phone calls between incarcerated victim of drive-by shooting and the alleged perpetrator fell closer to the “offhand, overheard remark” statements identified in Crawford as not implicating the confrontation clause even though the recorded phone calls began with an announcement that the call was subject to monitoring and recording).

The Sixth Circuit has provided guidance on this question in United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004). To quote from Cromer:

The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.

Id. The Cromer test has been consistently applied in the Sixth Circuit since its inception. See, Miller v. Stovall, 608 F.3d 913, 924 (6th Cir.2010) (citing United States v. Mooneyham, 473 F.3d 280, 286-87 (6th Cir.2007)).

Here, the nature of the statements made by Robinson and Kelly during their jailhouse telephone calls does not appear to the Court to indicate that either declarant intended to bear testimony against the other. It is highly doubtful that either Robinson or Kelly would anticipate that his statements would be used against the other in the investigation of a specific crime. Certainly, both men were well aware that their conversations were recorded, and could be intercepted by law enforcement officers. This general awareness, however, as noted in Ibarra, does not translate into an intent to bear testimony against the accused within the meaning of Cromer. Rather, all of the conversations contained in exhibits 1-16 seem far more in the nature of the type of casual, offhand remarks made between friends that routinely are held to be non-testimonial in nature. Because these statements are non-testimonial, out-of-court statements, their admissibility is only subject to review under the Federal Rules of Evidence and implicates no confrontation clause concerns. United States v. Arnold, 486 F.3d 177, 192-93 (6th Cir.2007) (en banc), cert. denied, 552 U.S. 1103, 128 S.Ct. 871, 169 L.Ed.2d 736 (2008) (discussing Davis v. Washington, 547 U.S. 813, 825, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) and Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007)).

The former test of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) likewise is not applied to a non-testimonial, out-of-court statement. United States v. Johnson, 581 F.3d at 325 (Johnson II) (citing Arnold, 486 F.3d at 192-93). Because confrontation clause concerns do not apply to non-testimonial, out-of-court statements, the need to analyze the admissibility of such tape recorded phone calls under the rule established in Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) is eliminated as well. Id. (citing United States v. Pugh, 273 Fed.Appx. 449, 455 (6th Cir.2008)) (“The statement at issue ... is non-testimonial in nature, and therefore, does not implicate the confrontation clause as analyzed under Bruton or otherwise.”). Accordingly, because all of the recorded jailhouse phone calls appear to be non-testimonial under Crawford and Cromer, no confrontation clause issues are implicated thereby.

Exhibit 6

The next out-of-court statement is a Jan. 28, 2010 recorded phone call by Ricky Kelly from GRCC to Defendant Robinson (DN 67, Ex. 6). The exhibit is designated as “e” by the parties in their supplemental briefs. In this instance, Defendant Robinson identifies himself to Kelly and provides Kelly with a home address for his residence on 42nd Street (DN 67, Ex. 6, p. 1). Robinson also offers the comment that if Kelly had moved to Atlanta when Robinson had urged him to do so, Kelly would have been “straight.” Kelly in response acknowledges that he would have been “rich by now.” (Id.).

Once again, the Court concludes that the statements of Defendant Robinson, in particular his identification and contact information, are relevant to the Government’s case against him. The out-of-court statement removes any significant doubt whom Kelly is dealing with, Defendant James Robinson. It likewise reaffirms Robinson’s connection to Atlanta, which is a reoccurring theme in several of the recorded jailhouse calls. The Government intends to seek admission of these calls to not only identify Robinson, but to show that references to “Jimmy” and “my dude in Atlanta” refer to Robinson and demonstrate the level of trust that Kelly placed in Robinson to safeguard Kelly’s property in Atlanta.

No barrier to admissibility of this conversation exists under Rule 401. Likewise, as matters presently stand, no unfair prejudice is imposed on Robinson so as to render the statement excludable under Rule 403 in the discretion of the District Court. As the Court noted above, Kelly’s involvement in the phone calls, and his mention at trial, is unavoidable given the nature of the charges. Finally, because the conversation consists merely of offhand, casual comments between close friends in an informal setting, the out-of-court statements are both non-hearsay and non-testimonial and therefor do not implicate the Confrontation Clause.

Exhibits 8A and 8B

The next two exhibits, 8A and 8B, are designated as “g” by the parties. Both of these exhibits involve a single phone call made by Ricky Kelly from GRCC to Defendant Robinson at 5:42 p.m. on Feb. 8, 2010 (DN 67, Exhibits 8A and 8B). During the initial portion of the call, Robinson advises Kelly that he has “somebody looking at” Kelly’s records. After Kelly tells Robinson that Robinson should have his lawyer get in contact with Kelly, because Kelly still has “pull” at the DA’s office, Robinson responds that he is going to tell Kelly something that Kelly must keep to himself (DN 67, Ex. 8A, p. 2). Robinson then proceeds to tell Kelly that “the chick waiting on you man” has an older sister who is a lawyer and is Robinson’s girlfriend. (DN 67, Ex. 8A, p. 2). Robinson then advises Kelly that his girlfriend had “done looked up your case already, so you just need to tell me or write it to me what exactly you want me to do or have her do ... we’ll go from there, but she’s already looked up your record.” (DN 67, Ex. 8, p. 2).

The conversation then continues in Ex. 8B during which Robinson tells Kelly that his girlfriend is Shanion rather than Sam, who is the younger sister of Kalila Brooks, an individual whose identity is established in yet another phone conversation with Kelly (DN 67, Ex. 8B, p. 1). Robinson explains to Kelly that Kalila Brooks does not know that her older sister is assisting him with investigating Kelly’s criminal records (Id.). Robinson advises Kelly to “keep that under wrapper, dog, so we can do what we gotta do.” (Id.).

The initial question, as always, is whether the above information is relevant within FRE 401. The answer, once again, is clearly that the identity and involvement of Shanion Thurman in obtaining information on behalf of Kelly is the very heart of the Government’s case. The Government’s theory is that Thurman at Robinson’s request obtained G. S.’s confidential cooperation agreement in early April, which Robinson then provided to both Kelly and Kelly’s brother, Terrell Gray, in an effort to help his lifelong friend by hindering the prospect that G.S. would testify against Kelly. The importance of this information to the charged offense of witness tampering is simply beyond dispute, nor can it be persuasively argued that the unfair prejudicial value of such information outweighs its probative worth. The information is highly probative and is not unfairly prejudicial to the extent that it merely identifies Thurman as being Robinson’s girlfriend, who is attempting to help out Kelly.

The problem for the Government with this information, however, is that it is not admissible against Thurman pursuant to FRE 801(d)(2)(A) which, as earlier noted, is limited in its application to the declarant, Defendant Robinson. Stalbosky, 205 F.3d at 894 (“Under Rule 801(d)(2)(A), a party’s statement is admissible as non-hearsay only if it is offered against that party.”); Maliszewski, 161 F.3d at 1008 (same). The United States therefore cannot rely upon this particular rule to introduce Robinson’s statements against Thurman, a fact that the Government itself recognizes in its supplemental memorandum by its reference to Rule 807, the residuary hearsay exclusion rule “as to statements made by Robinson which implicate co-defendant, Thurman.” (DN 67, p. 4).

Rather than address Rule 807 at this juncture, the Court elects to return to exhibits 8A and 8B in the section of this report that deals with the residual hearsay exception of Rule 807. At this juncture, the Court does conclude that, to the extent exhibits 8A and 8B reflect a conversation between Defendant Robinson and Kelly that is to be admitted against Robinson, then Rule 801(d)(2)(A) governs the analysis and the out-of-court statements of Robinson are non-hearsay statements, not subject to Confrontation Clause analysis given their non-hearsay and non-testimonial nature. See, United States v. Walter, 434 F.3d at 33-34; United States v. Gibbs, 506 F.3d 479, 486-87 (6th Cir.2007); Cromer, 389 F.3d at 670-71; Mooneyham, 473 F.3d at 286-87.

Exhibit 12

The fourth recorded conversation excerpt between Defendant Robinson and Kelly is transcribed in exhibit 12, designated as “k” by the parties. This jailhouse call by Kelly to Robinson occurred from GRCC at 11:52 a.m. on April 12, 2010 (DN 67, Ex. 12). During the conversation, Robinson and Kelly discussed who the informant may be. Robinson advises Kelly that the informant got “f-d up” a few days earlier last week, approximately a month after the confidential cooperation agreement, or “paperwork” was executed. (DN 67, Ex. 12, p. 2). Robinson speculates that perhaps someone else found out about G.S.’s cooperation and adds that two other individuals may be cooperating with the Government, as well. (DN 67, Ex. 12, p. 2). Robinson tells Kelly that G.S. is expected to say that Kelly was involved in three murders. (Id.) He adds that “she” did not give him any information about the other two suspected informants against Kelly, adding that “she” wasn’t really supposed to get Robinson the information about G.S., (Id.), but “she knows you....” (Id.).

Robinson then continues in the conversation to advise Kelly that he has seen a signed statement by G.S. that implicates Kelly in the murders, as well as “P.,” a possible reference to Kelly’s other brother, Antwan “Pearl” Tolley (Id. at 3). Robinson, after reassuring Kelly that he is Kelly’s “brother,” then continues to tell Kelly that he needed to get the information to him, but had to go through his brother because “some heat shot down my way.” (Id. at 4). As for the two other possible cooperating informants, Robinson complains that he could not get the paperwork on them, but if he does he will let Kelly know (Id. at 5).

Robinson then returns to discussing what he has learned about G.S. He assures Kelly that he has “seen the paper” and that G.S. is a persistent felon, a “three strikes” prisoner, who in return for his cooperation against Kelly and Kelly’s brother Tolley, has been promised home incarceration to begin in five months and visitation with his daughter. (DN 67, Ex. 12, p. 6). Robinson reassures Kelly that Robinson knows what he is saying and has seen the agreement “in black and white,” although he wasn’t supposed to see it. (Id.). Once again, Robinson advises Kelly that Robinson does not know if G.S. will survive, because he was severely beaten up a week ago. (Id. at 7).

Robinson tells Kelly, however, that he does not know where G.S. is incarcerated, but could find out. (Id. at 7). Kelly responds that he already knows where G.S. is located and that he knows whom Robinson is talking about. (Id. at 8). Kelly repeats that there are supposed to be two other individuals, beyond G. S., who also are cooperating. (Id. at 8). He then assures Kelly that he will “get all the information I can get....” (Id. at 8). Robinson reminds Kelly that Kelly is his “peeps” and expresses remorse for his involvement in a prior incident that involved giving Kelly “that G.” (Id. at 11). Robinson explains to Kelly that he has felt guilty about the incident and that it still bothers him now. (Id. at 11-12). Kelly concludes that when he gets out of prison he will come see Robinson on “day one.” (Id. at 12).

As before, the Government seeks to admit Robinson’s statements against him pursuant to Rule 801(d)(2)(A) as non-hearsay statements by an opposing party. The Court has previously discussed the requirements of the rule, as well as the requirement that the anticipated statement be relevant to the charged offense under Rule 401, and that its probative value outweigh any potentially unfair prejudice under Rule 403. The Court reaches the same conclusions with respect to Robinson and exhibit 12 that it did above.

Obviously, the quoted portions of the excerpts from the exhibit run directly to the Government’s case against Robinson. His comments reveal his review of and awareness about the contents of the confidential cooperation agreement, as well as his knowledge of the prior beating of the cooperating informant G.S. during the week prior to Robinson’s conversation on April 12, 2010. The conversation also confirms Robinson’s ongoing willingness to assist Kelly by attempting to determine who the other two alleged cooperating individuals are. Robinson reaffirms his close relationship with Kelly, and expresses his remorse over a prior incident involving Kelly in which Robinson apparently led Kelly astray, a fact relevant to Robinson’s motivation to “make things right” by helping his close friend deal with the possibility of a cooperating witness who may testify against him.

The conversation shows that Robinson is fully aware of all of the confidential details of the cooperating agreement with G. S., including the provisions for home incarceration and visitation with G. S.’s daughter. Robinson promises to attempt to gather more information on other potential cooperating individuals and the two men reaffirm the closeness of their relationship, with Kelly promising to come visit Robinson on the first day that he is released from prison.

All of these facts are relevant and material. They explain why Robinson would act as he did in obtaining confidential information for Kelly’s benefit. They confirm that he did so, that he had intimate knowledge of otherwise highly confidential aspects of G.S.’s cooperation agreement that he shared with Kelly and his willingness to continue to attempt to obtain further information for Kelly. Nothing in these facts is unfairly prejudicial to Robinson in any respect. Accordingly, Rules 401 and 403 are not implicated by the admission of the statements contained in the conversation excerpts of exhibit 12, designated “k” by the parties.

The problem, as the Government recognizes, is the use of Robinson’s statements against his co-defendant, Shanion Thurman. The Government argues that as to Thurman the statements of Robinson, which cannot be introduced against her pursuant to FRE 801(d)(2)(A), are nonetheless admissible as a statement against interest under FRE 804(b)(3). Rather than separately analyze this particular rule, the Court shall reserve its discussion of FRE 804(b)(3) for a separate section of the report that deals directly with those statements the United States intends to introduce against Thurman at trial, all of which for the most part are included within the statements of co-defendant Robinson.

Exhibit 16

The final recorded conversation excerpt of the jailhouse calls that the United States seeks to introduce is contained in exhibit 16, designated as “o” by the parties. This phone call occurred from the Louisville Metro Corrections facility on July 25, 2010, at 10:56 p.m. Ricky Kelly using an intermediary, Tiffany Roberts, contacted Robinson at home. During the conversation, Kelly asked Roberts to inquire whether Robinson had talked to “Tanner,” or “Montana” and had told him anything (DN 67, Ex. 16, p. 2). Robinson responded to Roberts that he gave Tanner “a piece of paper a couple of days ago....” (Id.). Roberts then relayed this information to Kelly. The conversation between Roberts and Kelly at the outset of the phone call, before Roberts connected to Kelly, also identifies Robinson’s house phone number (DN 67, Ex. 16, p. 1).

The Government now seeks to admit this conversation pursuant to Rule 801(d)(2)(A). The Government’s theory is that the “piece of paper” referred to by Robinson and communicated to Kelly through Roberts is the July 22, 2010 letter of Sgt. Butler faxed to Shanion Thurman at the DPA Oldham County office of attorney Kate Holmes. If so, the statements of Robinson would tend to show, in the Government’s view, that the letter of Sgt. Butler had been shared by Thurman with Robinson, who in turn had shared it with other individuals, as demonstrated by a separate recorded conversation excerpt of the same day involving Kelly’s brother, Terrell Gray, during which Gray read the entire contents of Sgt. Butler’s letter to Kelly (DN 67, Ex. 15). For these reasons, the Government argues that exhibit 16 is relevant and admissible without violation of the prohibition against hearsay evidence under Rule 802.

The Court agrees that the information contained in the conversation is relevant within the meaning of Rule 401 for the reasons set forth by the Government. It is highly relevant whether Thurman obtained and released Sgt. Butler’s letter to Robinson, who in turn shared it with other individuals. This information again runs directly to the charges of aiding and abetting attempted witness tampering under 18 U.S.C. § 1512(a)(2)(A) and 2. The statement, likewise, is not unfairly prejudicial under Rule 403, but merely is supportive of the Government’s theory of events. Merely because a statement may have an inculpatory interpretation does not make such statement unfairly prejudicial. See, United States v. Hans, 684 F.2d 343, 346 (6th Cir.1982) (“A rule 403 exclusion is appropriate only where the probative value of the relevant evidence is substantially outweighed by the danger of unfair prejudice.”) (citing United States v. Brady, 595 F.2d 359, 361 (6th Cir.1979), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979)).

One problem remains to be overcome before the Government may successfully move to introduce the conversation excerpt contained in exhibit 16. The problem involves the potential admission of hearsay with hearsay in violation of FRE 805. Under Rule 805, “in order to admit an out-of-court statement that is nested within another, Rule 805 requires that both statements be admissible.” United States v. Payne, 437 F.3d 540, 547 (6th Cir.2006), cert. denied, 547 U.S. 1217, 126 S.Ct. 2909, 165 L.Ed.2d 937 (2006) (citing United States v. Gibson, 409 F.3d 325, 337 (6th Cir.2005)) (No violation of Rule 805 where the statements of both declarants were subject to admission under Rule 801(d)(2)(A)). See also, United States v. Demjanjuk, 367 F.3d 623, 631 (6th Cir. 2004), cert. denied, 543 U.S. 970, 125 S.Ct. 429, 160 L.Ed.2d 341 (2004).

Here, the Government indicates in its supplemental motion that it will sidestep the double hearsay issue by presenting “a witness who will testify to Robinson’s statements.” (DN 67, p. 7). Presumably the individual most likely to have personal knowledge of such statements is Tiffany Roberts, although the Government does not disclose the identity of its potential witness on this point. If Roberts does testify to the statements of Robinson, then the double hearsay problem is avoided as Roberts herself is available for examination and cross-examination as to Robinson’s statements as related by her to Kelly. Robinson’s statements themselves remain admissible under Rule 801(d)(2)(A). No confrontation clause issue exists for the same two reasons explained above with respect to all of the other 801(d)(2)(A) out-of-court statements previously identified.

Statements Made to C.S. 1

Following his arrest in August of 2010, Robinson was housed at the Louisville Metro Corrections facility. During his incarceration there, Robinson allegedly spoke with a “friend of a friend” now referred to the Government as C.S. 1. According to the United States, Robinson essentially told C.S. 1 everything about his involvement with Thurman, her access to the confidential cooperation agreement of “Little G,” who had agreed to provide evidence against Kelly. Robinson allegedly told C.S. 1 that his girlfriend, whom Robinson did not identify by name in the conversation, had given the confidential cooperation agreement to him. Robinson told C.S. 1 that no one knew he was Kelly’s friend and that he was holding property for Kelly in Atlanta while protecting that property from other individuals who were trying to obtain it during Kelly’s incarceration.

Robinson confided to C.S. 1 that he had provided the information concerning the confidential cooperation agreement to Kelly’s brother, Terrell Gray, also known by his street name “Cogi.” Robinson supposedly told C.S. 1 that “they” had put a hit out on “Little G” as a result of the information obtained about his cooperation against Kelly, and that “they” were definitely out to get “Little G.” Robinson told C.S. 1 that he got into trouble with the law because he told Kelly about Little G’s cooperation during a series of jailhouse phone calls. Finally, Robinson allegedly told C.S. 1 that the police were looking for an individual known by the street name “Montana” whom according to Robinson was referred to as “Tanner” in the recorded jailhouse conversations in order to mislead the police.

The Government now argues once again that Robinson’s statements to C.S. 1, whom the Government intends to call to testify at trial, fall outside the scope of Rule 802 and its prohibition against hearsay testimony as being the statement of a party opponent under Rule 801(d)(2)(A). Once again, as to Robinson, the Court is compelled to agree. Robinson’s statements, or “admissions” to use the former terminology under the rule, are not considered to be hearsay. Further, because they were made in the context of an informal conversation with an individual not know to be cooperating with law enforcement, such statements are non-testimonial. The confrontation clause, therefore, does not apply, given that C.S. 1 is available and will testify at trial, and the statements themselves are not testimonial hearsay subject to Crawford.

However, the question of the use of these statements against co-defendant Thurman is a valid one. Rule 801(d)(2)(A) does not apply to Thurman, as the Court has previously noted. The Government argues that nevertheless, Robinson’s out-of-court statements to C.S. 1 may still be introduced against Thurman pursuant to Rule 804(b)(3) as a statement against interest. The Court in keeping with its pri- or practice defers consideration of Rule 804(b)(3) until it separately addresses those statements intended to be introduced against Thurman by the prosecution.

No question exists in the Court’s mind that Robinson’s statements to C.S. 1 are admissible against Robinson under Rule 801(d)(2)(A). The statements are those of a party opponent and therefore non-hearsay. They clearly are material as they relate to almost all of the material information contained in the prior recorded jailhouse conversation excerpts. No unfair prejudice under Rule 403 runs to Robinson, who certainly is free to argue that C.S. 1 lacks credibility given his own status as a prisoner and the convenient and belated nature of his testimony, as claimed by the Defendants. As noted, no Confrontation Clause issues exist as Robinson’s statements are non-testimonial and C.S. 1 apparently will be available for cross-examination at trial, according to the Government. The statements of Robinson to C.S. 1 accordingly are not precluded from admission against Robinson either by constitutional or evidentiary law.

b. Non-Hearsay Statements under Rule 801(c)

The United States next argues in its supplemental motion that the out-of-court statements contained in exhibits 2, 9, 10, 11, 14 and 15, designated as “b,” “h,” “i,” “j,” “m” and “n,” are admissible at trial because such statements are not submitted for the truth of the matters contained therein and therefore are non-hearsay under Rule 801(c). The Government argues as to these recorded jailhouse conversations that it intends to introduce them at trial, not to prove the truth of their contents, but rather simply to show that the statements themselves were made. See, United States v. Rodriguez-Lopez, 565 F.3d 312 (6th Cir.2009) (citing Blair v. Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir.2007)). See also, United States v. Branham, 97 F.3d 835, 851 (6th Cir.1996) (an out-of-court statement offered to show its effect on the listener is not hearsay). Because the above identified statements allegedly are not being offered for the truth of their contents and do not constitute hearsay, the Government continues to argue that the admission of these statements at trial will not violate the Sixth Amendment rights of Robinson and Thurman under the Confrontation Clause. Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (when an out-of-court statement is not offered to prove the truth of the matter asserted, the confrontation clause is not implicated). Accordingly, the fundamental question now is whether the identified out-of-court statements are truly being offered not for the truth of their contents.

As noted, “the hearsay rule bans in-court repetition of extrajudicial utterances only when they are offered to prove the truth or falsity of their contents.” United States v. Gibson, 675 F.2d 825, 834 (6th Cir.1982), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982) (citing United States v. Miriani, 422 F.2d 150, 153 (6th Cir.), cert denied, 399 U.S. 910, 90 S.Ct. 2199, 26 L.Ed.2d 561 (1970) (the rule does not apply to statements offered merely to show that they were made)). Thus, for example, if an out-of-court statement is offered merely to establish the recipient’s belief or state of mind as a result of the utterance, then the extrajudicial statement is not hearsay under Rule 801. Id. (citing United States v. Herrera, 600 F.2d 502 (5th Cir.1979)).

Likewise, if the challenged extrajudicial statement is adm