United States District Court, D. South Dakota, Southern Division
ORDER ADMITTING EVIDENCE
E. SCHREIER UNITED STATES DISTRICT JUDGE
the United States of America, filed notice pursuant to
Federal Rule of Evidence 801(d)(2)(A) that it intends to
offer the trial testimony of defendant, Michael Wayne Cooper,
from his June 2019 jury trial. Docket 182. Cooper objects.
Docket 186. The court finds that Cooper's prior trial
testimony is admissible.
of 2019, Cooper was brought to trial before a jury for one
count of distribution of a controlled substance resulting in
serious bodily injury. Docket 139; Docket 167 (trial
transcript). During Cooper's case-in-chief, Cooper
testified. Docket 167-2 at 86-132. The case went to the jury
for deliberation. Docket 139 at 5. After all reasonable
efforts, the jury informed the court that it was unable to
reach a unanimous verdict. Docket 167-3 at 64-67. The court
declared a mistrial. Id. at 67. On September 4,
2019, the United States filed a Second Superseding Indictment
charging Cooper with one count of distribution of a
controlled substance resulting in serious bodily injury and
one count of conspiracy to distribute a controlled substance.
Docket 171. The retrial is scheduled to begin on October 7,
2019. Docket 175.
United States argues that Cooper's prior trial testimony
is admissible under Federal Rule of Evidence 801(d)(2)(A).
Docket 182. Cooper argues that the trial testimony is
inadmissible hearsay and should be precluded from admission
during the United States's case-in-chief under Rule 801.
Docket 186 at 1.
Federal Rule of Evidence 801(d)(2)(A), a statement that is
“offered against an opposing party” and
“was made by the party in an individual or
representative capacity” is not hearsay. Here,
Cooper's trial testimony would be offered against an
opposing party because the United States is offering it
against Cooper. Additionally, the statement was made by the
party in an individual capacity because the testimony is
Cooper's own statement. Thus, Cooper's prior trial
testimony is not hearsay and is admissible under Rule
argues that the United States's reliance on Rule
801(d)(2)(A) is “flawed” because a majority of
Cooper's prior testimony is not being offered
“against him” as Rule 801 requires. Docket 186 at
1. Cooper contends that his testimony is not an admission
against his own interest. Id. But Rule 801(d)(2)(A)
does not require the statement to be against the
declarant's interest; the rule only requires the
statement to be offered against an opposing party. A
statement made against interest is a hearsay exception
contained in Rule 804, and the United States does not rely on
that exception. See Fed. R. Evid. 804(b)(3). Here,
Cooper's prior trial testimony is not hearsay under Rule
801(d)(2)(A) because it is an opposing party's statement.
Fifth Amendment states, “No person . . . shall be
compelled in any criminal case to be a witness against
himself[.]” U.S. Const. amend. V. But “[a]
defendant who chooses to testify waives his privilege against
compulsory self-incrimination with respect to the testimony
he gives[.]” Harrison v. United States, 392
U.S. 219, 222 (1968). “[O]nce the right against
self-incrimination is waived, the information given is
admissible at any subsequent trial.” United States
v. Gianakos, 415 F.3d 912, 919 (8th Cir. 2005).
Harrison v. United States, the United States Supreme
Court found the defendant's prior trial testimony to be
inadmissible in a subsequent trial because the prior
testimony was “the fruit of the poisonous tree.”
392 U.S. at 222. In Harrison, the government
introduced three confessions allegedly made by Harrison while
in police custody. Id. at 220-21. After the
admission of the confessions at trial, Harrison took the
stand to testify about his version of the facts. Id.
The jury found Harrison guilty, but his conviction was later
reversed because the court of appeals found that his
confessions were illegally obtained and inadmissible.
Id. at 220. Upon remand, the case came before a jury
for a second time. Id. at 221. At the second trial,
the prosecutor read to the jury Harrison's prior trial
testimony. Id. The jury convicted Harrison.
Supreme Court reserved the lower court and found that the
prior testimony was inadmissible in the second trial.
Id. at 226. The Court acknowledged “the
general evidentiary rule that a defendant's testimony at
a former trial is admissible in evidence against him in later
proceedings.” Id. at 222. But the Court noted
that Harrison's case presented an exception to the
general rule because “the petitioner testified only
after the Government had illegally introduced into evidence
three confessions, all wrongfully obtained, and the same
principle that prohibits the use of confessions so procured
also prohibits the use of any testimony impelled thereby-the
fruit of the poisonous tree[.]” Id. (footnote
support of its notice, the United States cites United
States v. Gianakos. Docket 186 at 2. In
Gianakos, the Eighth Circuit Court of Appeals found
that the admission of the defendant's prior trial
testimony in a subsequent trial did not violate his Fifth
Amendment rights. 415 F.3d at 918. Gianakos testified in his
own defense at his state trial for first-degree murder.
Id. His conviction was reversed by the Minnesota
Supreme Court based on a spousal-privilege issue.
Id. Then, federal charges were brought against
Gianakos for kidnapping. Id. During the federal jury
trial, the district court admitted Gianakos's testimony
from his prior state trial. Id. Gianakos appealed
his conviction and argued that the district court erred in
admitting his prior testimony because it violated his Fifth
Amendment right against self-incrimination. Id. The
Eighth Circuit distinguished Gianakos's ...