The opinion of the court was delivered by: Judge David H. Coar
MEMORANDUM OPINION AND ORDER
Before this Court is the Government's motion to admit statements of Tahir Ramin ("Tahir") as evidence against Defendants John Ramin ("John") and AZ Corporation ("AZ"), pursuant to Federal Rule of Evidence 801(d)(2)(D) [Dkt. 478]. For the reasons stated below, the Government's motion is DENIED.
The Government moves to admit statements made by Tahir Ramin as vicarious admissions of John Ramin and AZ Corporation under Federal Rule of Evidence 801(d)(2)(D). Rule 801(d) defines statements that do not qualify as hearsay. In relevant part, Rule 801(d)(2)(D) describes as non-hearsay "statement[s] by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." At the time of his arrest, Tahir was vice president of AZ Corporation, while John served as president. The issue before the Court is whether Tahir's post-arrest statements, if admitted under 801(d)(2)(D) in unredacted form and without an opportunity for cross-examination, would violate the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004).
In Crawford, the Supreme Court held that the Confrontation Clause bars the admission of testimonial out-of-court statements, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him. Id. at 68. In doing so, the Supreme Court dispensed with the reliability test articulated in Ohio v. Roberts, which admitted out-of-court statements if they fell within a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." 448 U.S. 56, 66 (1980). As an initial matter, it is undisputed that Tahir's statements were testimonial in nature. See Crawford, 541 U.S. at 68 ("testimonial" applies "at a minimum to prior testimony... to police interrogations"). Crawford also applies to corporate defendants such as AZ. See U.S. v. Petraia Maritime Ltd., 489 F.Supp.2d 90, 95 n. 4 (D. Me. 2007).
Although the Seventh Circuit has not directly ruled on the post-Crawford admissibility of a corporate defendant's vicarious admissions under 801(d)(2)(D),it has found no constitutional problems with admitting other categories of 801(d)(2) statements. See U.S. v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005) (holding that Crawford did not change the rules as to the admissibility of co-conspirator statements under 801(d)(2)(E)); U.S. v. Tolliver, 454 F.3d 660, 665-66 (7th Cir. 2006) (holding that Crawford was inapplicable and defendant's statements were admissible as non-hearsay under 801(d)(2)(A)). The Seventh Circuit's rationale is that Crawford only applies to hearsay, while 801(d)(A) and (E) statements are non-hearsay. See id.; but see U.S. v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007) ("Crawford stands for the proposition that it is improper in certain circumstances to admit hearsay testimony against the accused even if it falls into one of the hearsay exceptions.").*fn1
Assuming, for argument, the soundness of the Government's reading of Crawford, the testimonial statement of a party's agent would run afoul of the Confrontation Clause if it fell outside the scope of 801(d)(2)(D). Crawford would apply, for example, if the statement was not made during the existence of the agency relationship. The Government argues that because Tahir was employed as vice president of AZ Corporation and reputedly served as John's right-hand man at the time of his arrest, he made his statements during the existence of his agency relationships with co-Defendants. This cursory approach only scratches the surface of the issue.
Typically, an agency relationship premised on employment lasts until the termination of said employment. See Young v. James Green Mgmt., Inc., 327 F.3d 616, 622-23 (7th Cir. 2003) (employee's accusations of race discrimination in a letter of resignation "plac[ed] himself in an adversarial relationship with [his employer]" and thus fell outside Rule 801(d)(2)(D)); Walsh v. McCain Foods Ltd., 81 F.3d 722, 727 (7th Cir. 1996). As the Seventh Circuit explains, after an agent's term of employment has ended, "the justification for Rule 801(d)(2)(D) does not exist because [the agent] no longer [is] 'inhibited by [his] relationship with the principal from making erroneous or underhanded comments which could harm the principal.' " Young, 327 F.3d at 623 (quoting Hernandez Escalante v. Municipality of Cayey, 967 F.Supp. 47, 51 (D. P.R. 1997)). On the other hand, statements of present employees constitute admissions of corporate defendants because "[a]gents are unlikely to make statements which harm their employers or principals during their employment." Hernandez, 967 F.Supp. at 51.
Under normal, non-adversarial circumstances, statements of a vice president like Tahir could qualify as non-hearsay admissions of John and AZ, so long as Tahir was employed while making them. See U.S. v. Paxson, 861 F.2d 730, 734-35 (7th Cir. 1988) (statements made by non-defendant vice president to a witness were admissible as admissions of company president under 801(d)(2)(D)); U.S. v. Brothers Const. Co. of Ohio, 219 F.3d 300, 310-11 (4th Cir. 2000) (statement to a grand jury by a non-defendant corporate official considered an admission by a corporate defendant under 801(d)(2)(D)).
However, courts have found that intervening events can terminate the agency relationship, despite the continued employment of the declarant, such that statements made afterwards constitute hearsay under Rule 801. See, e.g., United States v. Summers, 598 F.2d 450, 459 (5th Cir. 1979) (district court erred in admitting statements made by defendant's agent because declarant made statements after he began cooperating with the FBI, an act that terminated the agency relationship); S.E.C. v. Geon Industries, Inc., 531 F.2d 39, 43 (2d Cir. 1976) (where firm and employee clearly had conflicting litigating positions in potential lawsuit, and firm had suspended employee, district court's refusal to consider employee's statements as admissions under Rule 801(d)(2)(D) was proper); Petraia, 489 F.Supp.2d at 96-97 (employees' statements, made after entering into cooperation/immunity agreements with the Government, were not admissions made during the course of the agency relationship because employees' interests had diverged significantly and become adverse from those of the employer).
In the instant case, Tahir made statements incriminating John and AZ after he was taken into custody by law enforcement agents. He was given thorough Miranda warnings, which established that his answers could be used against him in a court of law. See [Dkt. 490]. Tahir's interviewing agents told him that Tahir and his company were subjects of a criminal investigation into bribery and corruption at Bagram Air Force Base. Id. Thereafter, Tahir's interests diverged from those of John and AZ, seeing as his general strategy was to deny substantive responsibility and pin the blame on John, the president of AZ. Because Tahir was no longer restrained by the inhibitions that normally prevent an employee from making harmful statements against his employer, Tahir's agency relationship with John and AZ effectively ended (for purposes of his testimonial statements) when he was taken into custody for a case that pitted his interests against theirs. Tahir's post-arrest statements fall outside the scope of 801(d)(2)(D) and under the purview of the Confrontation Clause.
The Court further notes that Tahir's statements are precisely the kind of evidence that the Supreme Court in Crawford sought to bar under the Confrontation Clause. According to the Crawford Court,
The unpardonable vice of the Roberts test... is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. Despite the plurality's speculation in Lilly v. Virginia, 527 U.S. 116, 137 (1999), that it was "highly unlikely" that accomplice confessions implicating the accused could survive Roberts, courts continue routinely to admit them. See U.S. v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 245 (4th Cir. 2001). 541 U.S. at 63-64 (other internal citations omitted). In United States. v. Photogrammetric Data Services ("PDS"), listed above as illustrative of this common Confrontation Clause violation, a corporation and its manager were charged with highway project fraud and mail fraud, for inflating invoices passed on to the Virginia Department of Transportation. 259 F.3d at 236. During a non-custodial interview with law enforcement agents, the defendant manager made a number of inculpatory (and marginally exculpatory) statements. Id. at 243-44. The Fourth Circuit found that the district court properly admitted these statements against the co-defendant employer under Rule 801(d)(2)(D). Id. at 243. Under a separate analysis, the Fourth Circuit raised but ultimately avoided the question of whether the agent's statements to the police violated the Confrontation Clause for falling outside a "firmly rooted" exception to the hearsay rule, in light of the relatively recent broadening of Rule 801(d)(2)(D). The PDS court found it unnecessary to decide the issue because it was sufficient, under now-abrogated Ohio v. Roberts, that the agent's statements contained "particularized guarantees of trustworthiness." See id. at 244-45.
The Supreme Court did not specify whether or which additional parts of the Fourth Circuit's 801(d)(2)(D) analysis, beyond the application of the Roberts reliability test, were calculated in error so as to produce the unconstitutional result. However, the Supreme Court generally remarked that Sixth Amendment protections were never intended to submit to "the vagaries of the rules of evidence." Crawford, 541 U.S. at 61.*fn2 Ultimately, "[l]eaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.... [E]x parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them." Id. at 51; see also Lilly, 527 U.S. at 133 ("an accomplice's statements that shift or ...