## Facts

- The government charged Joshua Price, Michelle Cherry, LaDonna Gibbs, Teresa Price, and Sonya Parker with participating in a federal drug-distribution conspiracy in the Eastern District of Oklahoma.
- A cooperating witness, Ebon Sekou Lurks, provided key information about the alleged conspiracy.
- Before trial, Lurks was murdered, rendering him unavailable to testify.
- The government sought to introduce Lurks’s out-of-court statements against the defendants under Federal Rule of Evidence 804(b)(6), asserting defendants wrongfully procured (or acquiesced in procuring) Lurks’s unavailability.
- Evidence linked Joshua Price and Teresa Price to the murder, but there was no direct evidence that Cherry, Gibbs, or Parker participated in, or knew of, the killing.

## Issues

1. Whether Rule 804(b)(6) and the forfeiture-by-wrongdoing doctrine can apply to conspirators who did not personally murder, threaten, or otherwise directly procure a witness’s unavailability.
2. What standard governs imputing a co-conspirator’s witness-silencing conduct to other conspirators for purposes of forfeiture of hearsay and Confrontation Clause objections.
3. Whether the district court erred by limiting forfeiture to defendants directly involved in the murder and, if so, whether remand was required for findings under the correct standard.

## Decision

- The court held that, in appropriate circumstances, co-conspirators may be deemed to have forfeited hearsay and Confrontation Clause objections under Rule 804(b)(6) even without direct participation in the witness’s killing.
- The court adopted a conspiracy-based attribution standard requiring that the wrongful act be in furtherance of the conspiracy, within its scope, and reasonably foreseeable as a necessary or natural consequence of the conspiracy.
- The court vacated the district court’s suppression ruling to the extent it excluded Lurks’s statements as to Cherry, Gibbs, and Parker based solely on lack of direct procurement.
- The case was remanded for the district court to make defendant-specific factual findings under the articulated standard.

## Legal Principles

- Rule 804(b)(6) codifies forfeiture by wrongdoing: a party who wrongfully causes, or acquiesces in wrongfully causing, a declarant’s unavailability with the intent to prevent testimony forfeits hearsay objections to the declarant’s statements.
- Forfeiture by wrongdoing may also operate as a waiver of Confrontation Clause protections when the defendant’s (or attributable) misconduct is intended to, and does, render the witness unavailable.
- In a conspiracy case, a co-conspirator’s witness-silencing act may be attributed to another defendant for Rule 804(b)(6) and confrontation-waiver purposes when the act is:
  - in furtherance of the conspiracy,
  - within the scope of the conspiracy, and
  - reasonably foreseeable as a necessary or natural consequence of the ongoing conspiracy.
- Application of forfeiture in this setting requires individualized findings as to each defendant under the governing attribution standard, not categorical exclusion or admission based solely on direct involvement.

## Conclusion

The court ruled that forfeiture-by-wrongdoing under Rule 804(b)(6) can extend to non-acting conspirators when a co-conspirator’s witness-silencing conduct is in furtherance of, within the scope of, and reasonably foreseeable in the conspiracy, and it remanded for defendant-specific findings under that framework.


United States v. Cherry, 217 F.3d 811 (10th Cir. 2000)