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Telephone Game: Multiple Hearsay Is Good Enough for Sentencing

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By William Peacock, Esq. on November 14, 2013 5:00 PM

Ever play the telephone game? You say something to one person, she repeats it to the next person, who repeats it to the next person ... ad nauseum. By the time the message reaches the end of the chain, a statement such as, "Man, I could really use some Chipotle right now, but I'm blogging instead," becomes, "I've got a chicken in my head."

Reliability. It's one of the reasons why hearsay is naughty -- except, apparently, when crackheads phone in their testimony to a third party who then prepares a sentencing report.

Kendrick Crawford's Crack Customers Gave Rave Reviews

Crawford was charged with six counts of selling 38.3 grams of crack, for a total of 229.8 grams.

That's quite a bit, and enough for a lengthy prison bid, but the presentencing report, post-plea deal, listed 408.1 grams. Was it magic? Did someone cut the drugs with an adulterant to increase bulk?

Nope. A couple of former crack customers became informants in order to save themselves from lengthy prison sentences. Three witnesses who purchased drugs from Crawford provided enough details to estimate the total amount purchased over their many years as loyal customers. Two of the witnesses provided their statements over the phone to an ATF agent, who himself also did not testify at the hearing.

An out-of-court statement based on out-of-court statements, which is then incorporated into a presentencing report. Sounds legit, right?

Crawford claims that his sentence was procedurally unreasonable because of the multiple hearsay telephone game, and tried a Crawford confrontation clause argument (which he conceded, as the Confrontation Clause does not apply at sentencing hearings).

Procedurally Unreasonable?

The sentencing guidelines allow consideration of "all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction." That includes drug quantities sold, or at least a reasonable approximation thereof, with one limit: the Fourth Circuit has held that when the approximation is based on uncertain witness estimates, the district court should stick to the low end of the applicable sentencing range. The court did so here.

But still, crackheads on telephones. There has to be some indication of reliability here, right? The sentencing judge heard testimony from Deputy Jeffrey Beck, who had worked with one of the informants in the past, and her information had always proven reliable. She also estimated that she had purchased an "eight-ball" of crack each month for the past six years, totaling 230.4 grams and she participated in a controlled purchase with Crawford.

Ditto for the second snitching customer, who had also been a reliable source of information for federal prosecutions.

Still, does the multiple hearsay problem, plus the telephone medium, the crack addictions, and the self-serving motives of the witnesses strike anyone else as at least somewhat questionable? Can't we hale them into court, just to get the warm fuzzy feeling that comes with confidence in the reliability of our justice system?

What are your thoughts? Tweet us @FindLawLP.

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