The opinion of the court was delivered by: Surrick, J.
Presently before the Court is the Government's Motion in Limine to Admit Statement of Tybius Flowers Made to the Philadelphia Police Department (ECF No. 796), and Defendant Kaboni Savage's Motion in Limine for Pretrial Evidentiary Hearing as to Admissibility of Evidence Pursuant to Fed. R. Evid. 804(b)(6) (ECF No. 812). For the following reasons, the Government's Motion will be granted, and Defendant's Motion will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment charging Defendant Kaboni Savage with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15); tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8)*fn2 ; conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16); and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.)*fn3
Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
The charges against Defendant relate to a long-standing RICO conspiracy involving drug trafficking, murder, and witness intimidation. The Government alleges that all four Defendants were members of a regional criminal organization, which was based in North Philadelphia and was known as the Kaboni Savage Organization ("KSO"). From late 1997 through April 2010, members of the KSO conspired and agreed to distribute large quantities of controlled substances, to commit murder and arson, and to tamper with, and retaliate against, witnesses who had testified, or were about to testify, against the racketeering enterprise or its members. It is alleged that the KSO was committed to protecting and expanding its power, territory, and profits by tampering with and retaliating against Government witnesses and their families through the use of threats, intimidation, violence, and murder.
The Fourth Superseding Indictment alleges that on March 19, 1998, Defendant shot and killed Kenneth Lassiter at the corner of 8th and Butler Streets in Philadelphia, Pennsylvania "for the purpose of maintaining and increasing position in an enterprise engaged in racketeering activity." (Fourth Superseding Indictment 38-39.) The Government alleges that Defendant shot and killed Lassiter on the drug turf of his rival, Tybius Flowers, in order to send a message to Flowers. (Gov't's Mot. 2, ECF No 796.) Flowers witnessed the murder and provided a statement to the Philadelphia Police Department ("PPD") identifying Defendant as the killer. (Id.) The Fourth Superseding Indictment alleges that, on March 1, 2004, Defendant ordered Northington to murder Flowers in order to prevent Flowers from testifying against Defendant in the state murder trial of Lassiter. (Fourth Superseding Indictment 18, 44.)
On December 10, 2012, the Government filed a Motion in Limine to Admit Statement of Tybius Flowers Made to the Philadelphia Police Department. (Gov't's Mot.) Defendant did not file a response to this Motion. Instead, Defendant filed a separate Motion in Limine for Pretrial Evidentiary Hearing as to Admissibility of Evidence Pursuant to Fed. R. Evid. 804(b)(6). (Def.'s Mot., ECF No. 812.) The Government filed a response to Defendant's Motion on December 20, 2012. (Gov't's Resp., ECF No. 849.)
A. The Parties' Contentions
The Government requests a pretrial ruling on the admissibility of Flowers's statement to the PPD identifying Defendant as the killer of Lassiter. (Gov't's Mot. 2.) The Government argues that, by ordering the murder of Flowers, Defendant intentionally procured the unavailability of Flowers as a witness and therefore Flowers's statement is admissible under the forfeiture by wrongdoing exception to the hearsay rule and the Confrontation Clause. (Id.) In support of this, the Government contends that the Court should adopt a preponderance of the evidence standard to establish the forfeiture by wrongdoing exception, and that a pretrial hearing is not required in order for the Government to meet this evidentiary threshold. (Id. at 9-11.) Referencing a procedure used by courts including the Third Circuit, the Government proposes that the Flowers's statement be conditionally admitted at trial "subject to the prosecution making the necessary connection." (Id. at 11.)
Defendant failed to respond to the Government's Motion. Instead, Defendant filed a separate Motion requesting that the Court preclude admission of Flowers's statement to the PPD. (Def.'s Mot. 1.) Defendant argues that the statement is inadmissible because it is hearsay and violates Defendant's rights under the Confrontation Clause. (Id.) Defendant further argues that, if the Government seeks admission of Flowers's statement under the forfeiture by wrongdoing hearsay exception, the Court should rule on the admissibility of the statement at a pretrial evidentiary hearing instead of at trial. Finally, Defendant contends that at the pretrial hearing, the Government should be required to prove by clear and convincing evidence that the forfeiture by wrongdoing exception applies. (Id. at 2-3.)
The Confrontation Clause guarantees criminal defendants the opportunity "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Supreme Court has determined that the Confrontation Clause bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004). The Supreme Court has also made clear that a defendant's rights under the Confrontation Clause are subject to the forfeiture by wrongdoing exception, which is a common law doctrine that allows unconfronted testimonial statements of witnesses to be admitted into evidence "where the defendant ha[s] engaged in wrongful conduct designed to prevent a witness's testimony." Giles v. California, 554 U.S. 353, 366 (2008). "[O]ne who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." Davis v. Washington, 547 U.S. 813, 833 (2006); see also Crawford, 541 U.S. at 62 ("The rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds."); ...