## Facts

- George Albino was arrested at John F. Kennedy Airport after customs agents found heroin in his luggage.
- Albino agreed to cooperate and reported he was to deliver the heroin to a man known as “Henry” in the International Arrivals Building; a records check linked “Henry Delgado” to Andres Aguiar.
- Wearing a concealed recorder, Albino approached Aguiar; Aguiar asked in Spanish whether everything was okay and where the bag was, then took possession of the suitcase containing heroin and was arrested.
- In debriefings, Albino told federal agents and an Assistant U.S. Attorney that Aguiar hired him to travel to Brussels to obtain heroin, arranged travel and documents, paid expenses, and promised $5,000–$6,000 upon delivery.
- Albino also stated that after the arrest Aguiar instructed him to deny involvement and claim Aguiar was merely a taxi driver.
- Albino initially entered a plea agreement and agreed to testify but later stated he no longer wished to cooperate.
- Albino reported receiving written and verbal threats from Aguiar and expressed fear for his family; he provided a letter threatening to expose Albino’s alleged serious criminal conduct and urging him to contact his lawyer to “clear” Aguiar.
- Albino ultimately refused to testify at trial despite a material-witness warrant.
- After an evidentiary hearing, the district court found Aguiar procured Albino’s unavailability through threats and intimidation and admitted Albino’s prior out-of-court statements, including the recorded airport conversation, over hearsay and Confrontation Clause objections.
- A jury in the Eastern District of New York convicted Aguiar of heroin importation-related offenses and witness tampering.

## Issues

1. Whether procuring a witness’s unavailability forfeits confrontation and hearsay objections only as to limited categories of evidence or “for all purposes,” allowing admission of the witness’s unsworn out-of-court statements.
2. Whether the district court used the correct standard of proof to find that the defendant caused the witness’s unavailability.
3. Whether the jury instructions on the witness-tampering count improperly shifted the burden of proof in violation of due process.

## Decision

- The Second Circuit affirmed the convictions.
- The court held that a defendant who procures a witness’s unavailability forfeits Confrontation Clause protections and hearsay objections as to that witness’s statements for all purposes, including unsworn statements to law enforcement and a recorded conversation.
- The court approved the district court’s use of a preponderance of the evidence standard to determine whether the defendant caused the witness’s unavailability.
- The court held that the jury instructions on witness tampering, including the treatment of an affirmative defense, correctly preserved the government’s burden to prove each element beyond a reasonable doubt and did not violate due process.

## Legal Principles

- A defendant who intentionally causes a witness to be unavailable forfeits Sixth Amendment confrontation rights and hearsay objections with respect to that witness’s statements for all purposes.
- The trial court may determine forfeiture-by-wrongdoing as a preliminary admissibility question under Federal Rule of Evidence 104(a) using a preponderance of the evidence standard.
- Where the charge as a whole repeatedly places the burden of proving each element beyond a reasonable doubt on the government, a statutory affirmative defense that requires the defendant to prove that defense by a preponderance does not, by itself, unconstitutionally shift the burden of proof.

## Conclusion

Because the district court properly found, by a preponderance of the evidence, that Aguiar’s threats procured Albino’s refusal to testify, Albino’s prior statements were admissible notwithstanding confrontation and hearsay objections, and the jury instructions on witness tampering did not shift the burden on the elements of the offense; the convictions were affirmed.


United States v. Aguiar, 975 F.2d 45 (2d Cir. 1992)