Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)

MEMORANDUM^* 

The appellant, Curtis Farber, was convicted in Oregon for the murder of Henry Foss ("Foss"). The state presented evidence at trial that the appellant had been part of a conspiracy to murder, and that appellant had aided and abetted Mark Whitney ("Whitney") and Kevin Freer ("Freer") in the commission of the crime. Coconspirator Freer gave testimony at trial concerning out of court statements made by appellant and Whitney. Additional testimony for the state was given by Kerry Fouts ("Fouts"). Fouts was not a coconspirator in the crime, but she also testified to out of court statements made by the appellant and Whitney.

Following unsuccessful appeals to the Oregon appellate courts and the Oregon Supreme Court, appellant petitioned for habeas corpus relief in the United States District Court for the District of Oregon. He claimed that the admission of Freer's and Fouts' testimony violated his confrontation clause rights. The district court granted summary judgment in favor of the state. Appellant appeals this judgment.

Freer's testimony to out of court statements made by appellant and Whitney was admitted under the coconspirator exception to the hearsay rule. Appellant correctly asserts that the coconspirator exception only applies when a defendant's participation in the alleged conspiracy is shown by some proof that is independent of the coconspirator's testimony. United States v. Silverman, 861 F.2d 571, 578 (9th Cir. 1988). In this case, Fouts testified that she overheard the appellant and Whitney discussing the possibility of murdering Foss:

They talked about that they were either going to have to pay the supplier back or have him killed. Knock him off is how they said it. [T.R. 525A, 1. 25-525, 11. 1-2]

They just said that they talked about staking out the--their man, the supplier, and watching him to figure out when they would do it, if they do it. [T.R. 526, 11. 9-11]

The above testimony was admissible. " [W]hen a witness is present at a meeting between a group of conspirators, and they orally, in his presence, agree upon the conspiracy, its objectives, and its modus operandi, the witness' testimony about what each of them said is not hearsay." (Court's emphasis). United States v. Wolfson, 634 F.2d 1217, 1219 (9th Cir. 1980). Also, any statements Fouts heard from the appellant concerning the murder were admissions.

Fouts' testimony was clearly sufficient independent evidence of the appellant's participation in a murder conspiracy to allow Freer to testify under the coconspirator exception to the hearsay rule.

The appellant was prosecuted under the theory that he contracted Whitney to commit the murder. Freer testified concerning statements made after the actual killing but before the final payment from appellant to Whitney. Appellant claims that this testimony concerned statements made after the chief objective of the conspiracy had been completed, and that it was therefore not admissible under the coconspirator rule. Appellant relies on United States v. Vowiell, 869 F.2d 1264 (9th Cir. 1989), and Krulewitch v. United States, 336 U.S. 440 (1949), to support his position. Vowiell and Krulewitch both concerned testimony to out of court statements made during attempts to cover up past completed criminal activity. In Vowiell, the substantive crime that was the object of the alleged conspiracy had ended before the time the statements were made. Vowiell, 869 F.2d at 1267-1268.

In the present case, any discussion concerning the payment from appellant to Whitney was not part of an attempt to cover up a completed crime. The payment was a planned and integral part of the conspiracy to commit murder. Payment is an integral and often final term in a conspiracy. Also, the payment in this case furthered the substantive crime that was the object of the conspiracy. Under the Oregon statutes, murder and soliciting another to commit murder are the same crime. See O.R.S. Secs. 161.150, 161.155. The payment to Whitney was certainly a chief act in soliciting the murder of Foss, and it was therefore a chief act in furthering the murder itself. Appellant's claim that discussions preceding the payment did not further the objective of the conspiracy is therefore without merit.

Appellant finally claims that Fouts gave inadmissible hearsay testimony concerning statements made by Whitney and that the admission of the testimony constituted prejudicial error. However, nothing in the allegedly inadmissible testimony from Fouts was more damaging than her admissible testimony that was discussed earlier in this memorandum. Therefore, the contested testimony was cumulative and any error was harmless beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673 (1986).

For all of the above reasons, the judgment of the district court is affirmed.

AFFIRMED.