Richard M. Lippay v. Dean C. Christos Commonwealth of Pa. Dean C. Christos

BECKER, Circuit Judge,

concurring in the judgment.

I agree with the majority that Lippay failed to lay a sufficient foundation for admission of the challenged portion of Mrs. Lip-pay’s testimony under Fed.R.Evid. 801(d)(2)(D), and that the admission of this evidence was not harmless. Consequently, as the majority concludes, unless the district court determines on remand that Christos is entitled to judgment as a matter of law under Fed.R.Civ.P. 50(a), it must order a new trial. I write separately because I believe that the majority has erred on an important point in the law of evidence. In particular, I take issue with the majority’s assertion, see Majority at 1497, that because the Federal Rules of Evidence do not define “agent” or “servant” in conjunction with Fed.R.Evid. 801(d)(2)(D), we should presume that Congress intended courts to import into federal evidence law the substantive law of agency and master-servant relations. 1

I believe that the correct rule is that an out-of-court statement may be admissible under Rule 801(d)(2)(D) when a sufficient supervisory relationship exists between two individuals who share a unity of interest regarding the subject matter of the testimony in question. As the authors of one treatise have explained, “[t]he notion of agency in Rule 801(d)(2)(D) turns on the authority of a party to supervise or direct the activities of another.” 4 David W. Louisell & Christopher B. Mueller, Federal Evidence § 426, at 157 (Supp.1992). As long as a party has demonstrated a sufficient supervisory relationship between the declarant and the opposing party, Rule 801(d)(2)(D) should apply, even if there is technically no agency or master-servant relationship between the two *1505 under substantive agency or master-servant law.

In United States v. Paxson, 861 F.2d 730 (D.C.Cir.1988), the D.C. Circuit explained that it would be a “hyper-technical construction of [Rule 801(d)(2)(D) ]” to conclude that it does not apply when there is a sufficient supervisory relationship between two individuals, although there is no actual agency relationship between the two. Id. at 734 ; see also 4 Louisell & Mueller, supra, § 426, at 324-25 (1980) (“[T]he interpretation of [Rule 801(d)(2)(D) ] should not be hobbled by the definitions of [“agent” and “servant”] which would apply under the substantive law.”). I agree. This approach has also been followed by most courts of appeals that have addressed the meaning of “agent” and “servant” under Rule 801(d)(2)(D); while their interpretation of Rule 801(d)(2)(D) is informed by the elements of substantive agency or master-servant law, they do not strictly apply it. See Zaken v. Boerer, 964 F.2d 1319, 1322-23 (2d Cir.) cert. denied, — U.S. -, 113 S.Ct. 467 , 121 L.Ed.2d 375 (1992); Paxson, 861 F.2d at 734 ; Crawford v. Garnier, 719 F.2d 1317, 1324 (7th Cir.1983); Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981). But see Boren v. Sable, 887 F.2d 1032, 1038 (10th Cir.1989) (applying common law definitions of “agent” and “servant” to Rule 801(d)(2)(D)).

The majority’s strict importation of the substantive law of agency and master-servant relations into Rule 801(d)(2)(D) analysis ignores one of the overarching principles of the Federal Rules of Evidence: flexibility in the application of the evidentiary rules to accommodate the particular considerations and factual contexts arising in specific cases. It is well-recognized that the drafters of the Federal Rules of Evidence, while establishing uniform evidentiary rules, intended the Federal Rules of Evidence to offer judges a high degree of flexibility in their application. See, e.g., 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence at iv (1992); id. ¶ 102[01], at 102-7; 1 Louisell & Mueller, supra, § 102, at 5-7 (1977); David P. Leonard, Power and Responsibility in Evidence Law, 63 S.Cal.L.Rev. 937, 961-67 (1990); Thomas M. Mengler, The Theory of Discretion in the Federal Rules of Evidence, 74 Iowa L.Rev. 413, 415 (1989). The majority, however, by requiring strict adherence to the definitions of “agent” and “servant” imposed by the substantive law in the application of Rule 801(d)(2)(D), eschews flexibility in favor of a more mechanical approach.

While I disagree with the majority’s approach, I reach the same conclusion under the facts of this case. I believe that Lippay has failed to offer sufficient evidence to demonstrate that the informant, Philbin, was under the supervision and control of Christos (rather than officials at the Pennsylvania Bureau of Narcotics Investigation) to justify application of Rule 801(d)(2)(D). I therefore concur in the judgment.

. I do agree with the majority, however, that we should not import the law of the forum in which the dispute arose, but rather should apply and fashion federal common law under Rule 801(d)(2)(D). See Majority at 1497. I also agree with the majority’s refusal to establish a blanket rule that informants may never qualify as the agents or servants of the law enforcement officers for whom they work under Rule 801(d)(2)(D). See Majority at 1498-99. Rather, as the majority opinion makes clear, whether or not an informant's out-of-court statements are admissible under Fed.R.Evid. 801(d)(2)(D) must be analyzed on a case-by-case basis, as the exact nature of the relationship between the informant and the officer will not be the same in each criminal investigation.