U.S. v. Foster

Federal 7th Circuit Court
Criminal Court
Case Number: 
No. 11-3097
Decision Date: 
November 28, 2012
Federal District: 
N.D. Ill., E. Div.
In prosecution on distribution of cocaine base counts arising out of four controlled purchases arranged by police and carried out by paid informant, Dist. Ct. did not err in admitting recorded statements between confidential informant and defendant that occurred during controlled purchases. While defendant argued that said evidence constituted inadmissible hearsay and that its admission violated Confrontation Clause since confidential informant did not testify at trial, Ct. found that recorded statements did not constitute hearsay evidence because it was not introduced for truth of matters asserted, but rather was admitted to give context to defendant’s own admissions in recorded statements. Also, Dist. Ct. did not err in failing to grant defendant’s request for missing witness instruction arising out of informant’s absence from trial due to his assertion of 5th Amendment privilege stemming from his admission that he had skimmed some of govt.’s drug purchase money; defendant failed to make necessary showing that informant was peculiarly within power of govt. to produce where record showed that informant was equally unavailable to both parties.