In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-‐‑2005
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
DERRICK SMITH,
Defendant-‐‑Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 175 — Sharon Johnson Coleman, Judge.
____________________
ARGUED FEBRUARY 26, 2016 — DECIDED MARCH 11, 2016
____________________
Before POSNER, FLAUM, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. In March 2011 Derrick Smith
was appointed to the Illinois House of Representatives to
complete an unfinished term. He wanted to be elected in his
own right, which meant that he had to campaign in his par-‐‑
ty’s primary, set for March 2012. One of his campaign assis-‐‑
tants, known to Smith as “Pete,” alerted the FBI that Smith
might be corrupt. Pete (whose last name has been kept con-‐‑
fidential) began recording some of his conversations with
2 No. 15-‐‑2005
Smith. At the FBI’s suggestion, Pete told Smith that a woman
who lived in his district would provide $7,000 (money that
would help Smith pay his campaign staff) if Smith wrote a
letter supporting her application for a grant from the state’s
Capital Development Board for the construction of a daycare
center. This was a sting; there was no such woman, and the
money would come from the FBI.
Letters of recommendation from one public official to
another are common and lawful—unless paid for. The ex-‐‑
change of an official act for money violates federal law, no
matter how the recipient uses the cash. See, e.g., Evans v.
United States, 504 U.S. 255 (1992); McCormick v. United States,
500 U.S. 257 (1991); United States v. Blagojevich, 794 F.3d 729
(7th Cir. 2015). Smith wrote the letter, and Pete handed over
$7,000. Smith immediately used some of the money to pay
his campaign staff; a search of his home turned up the rest.
At Smith’s trial for violating 18 U.S.C. §§ 666(a)(1)(B) and
1951, the prosecutor introduced the recorded conversations
with Pete. The jury convicted, and the judge sentenced Smith
to five months’ imprisonment and one year’s supervised re-‐‑
lease. Neither side called Pete as a witness: he was a shady
character and may have been stealing from the FBI in addi-‐‑
tion to assisting it. Pete said that he would not testify, assert-‐‑
ing his constitutional privilege not to be compelled to in-‐‑
criminate himself. Since the prosecutor did not want Pete’s
testimony, he did not ask the court to grant use immunity;
defense counsel did not call Pete to see whether the district
judge would honor his assertion of the privilege. (It is easy
to imagine lines of questioning whose answers could not in-‐‑
criminate Pete.)
No. 15-‐‑2005 3
The sole argument Smith makes on appeal is that, with
Pete not in court, the use of his recorded statements violated
the Confrontation Clause of the Sixth Amendment. It is un-‐‑
clear why Smith casts this as a constitutional argument ra-‐‑
ther than as one based on the hearsay doctrine. See United
States v. Walker, 673 F.3d 649, 659–61 (7th Cir. 2012) (concur-‐‑
ring opinion). The hearsay rule excludes out-‐‑of-‐‑court state-‐‑
ments offered for their truth. See Fed. R. Evid. 801(c). (There
are exceptions, but the United States does not argue that any
applies.)
The Confrontation Clause, by contrast, affects only “tes-‐‑
timonial” statements. See, e.g., Ohio v. Clark, 135 S. Ct. 2173
(2015); Crawford v. Washington, 541 U.S. 36 (2004). Indeed it
covers only a subset of testimonial hearsay. Statements that
would have been admissible at common law in 1793 (in oth-‐‑
er words, statements that are not hearsay or are covered by
longstanding exceptions to the hearsay doctrine) are outside
the Sixth Amendment, see Giles v. California, 554 U.S. 353,
358–59 (2008), as are all statements by witnesses who are
available for cross-‐‑examination, see Crawford, 541 U.S. at 60
n.9. And Clark shows that the Court has not yet decided
whether the Confrontation Clause covers testimonial state-‐‑
ments by one private party to another. Thus if a statement is
not hearsay, because not offered for its truth, it also is not
“testimonial” for the purpose of the Confrontation Clause.
The district judge admitted Pete’s recorded statements
after concluding that they helped to put Smith’s recorded
statements in context. Smith maintains that Pete’s statements
do more than put his own in context—and that even if just
used for context they are inadmissible because Pete said
much more on the recordings than Smith did. It is easy to
4 No. 15-‐‑2005
find statements in judicial opinions discussing whether
statements have been used for “context” and commenting on
the relative length of different speakers’ statements, but
those observations must not be understood to displace the
legal standards—for hearsay whether the out-‐‑of-‐‑court
statement is offered for truth, and for the Confrontation
Clause whether the out-‐‑of-‐‑court statement is testimonial.
To see this, consider a simple hypothetical. “Pete: I will
pay you $7,000 in exchange for a letter my client can use to
seek a grant for a daycare center. Do you agree? Smith: Yes.”
In this example, Pete utters 25 words to Smith’s one—but
there is no hearsay because Pete’s statement is not used to
show that anyone will pay $7,000. It is used instead to show
the meaning of Smith’s “yes,” which does not depend on
whether Pete was speaking truthfully. The “yes” constitutes
Smith’s agreement to exchange money for an official act.
Pete’s statements may put Smith’s “in context,” but that’s
unimportant. What matters is that, without being used for
their truth, they enable the jury to determine the import of
Smith’s own words. Allowing the jury to hear Pete’s words
no more violates the Confrontation Clause than does provid-‐‑
ing a jury with a dictionary or a translation from a foreign
language or an expert on criminal jargon. Talking about
“context” does not help to establish whether such an ex-‐‑
change is properly admitted, nor does counting the number
of words tell us whether Pete’s statement is hearsay under
Rule 801 or “testimonial” for constitutional purposes.
Now consider a different example. “Pete: Last week I
paid you $7,000 for a letter that my client will use to seek a
grant for a daycare center. Do you remember? Smith: Yes.”
This has the same 25-‐‑to-‐‑1 ratio of words, and it too could be
No. 15-‐‑2005 5
said to show the context of Smith’s reply. But this statement
would be hearsay, because it would be relevant only if Pete
spoke the truth—that he had paid $7,000 in exchange for a
letter. Once again it would be best to tackle the dispositive
questions directly rather than be sidetracked into word
counts or a search for “context.” Even the briefest testimoni-‐‑
al out-‐‑of-‐‑court statement—e.g., “Smith shot Jones”—can vio-‐‑
late Rule 801 and the Confrontation Clause, no matter its ef-‐‑
fect on the context in which to place hearers’ responses.
We looked through the record to determine whether
Pete’s statements (and those of other persons heard on the
recordings) were offered for their truth. Here is one ex-‐‑
change that Smith has selected as an example:
[Pete]: The broad is fixin’ to give.
Smith: I got you, mother fucker. I told your ass, I got
you.
[Pete]: For real, look. The broad is gonna give seven
thousand, with no problem.
Smith: Okay.
Pete’s statements in this exchange are admissible. They were
not offered for their truth—that is, to show that someone was
going to pay Smith. The “broad” did not exist, and the FBI
did not plan to let Smith keep the money. Instead Pete’s
statements were used to show what Smith himself under-‐‑
stood the transaction to entail.
Here’s another exchange to which Smith objected:
[Pete]: You ready, you ready to write?
Smith: Yeah I got it.
6 No. 15-‐‑2005
Once again Pete’s statement was not offered for the truth of
anything, though it does tend to show the meaning of
Smith’s “I got it.” No hearsay here.
It would not be helpful to run through all of the other ex-‐‑
changes. They are similar to these. Smith has not been con-‐‑
victed on the basis of hearsay, or of out-‐‑of-‐‑court testimonial
statements. Smith’s own words and deeds convicted him.
AFFIRMED