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Law School Case Brief

United States v. Montana - 199 F.3d 947 (7th Cir. 1999)


The mere fact of being under investigation by the prosecutors of the lawyer's client does not create a fatal conflict of interest. An actual fear of retaliation must be shown.


The defendant was convicted of bank robbery and related offenses and given a sentence of almost 30 years. James Dodd committed the actual robbery; Montana drove the getaway car. Dodd pleaded guilty and testified at Montana's trial as his witness. Dodd stated that Montana did not know that hewas planning to rob the bank. Shortly before the end of the trial, Dodd gave Montana's lawyer a note for Montana's mother, who after she read it told the lawyer that the note demanded money in exchange for Dodd's having testified favorably to Montana. The following morning, a deputy U.S. marshal heard Dodd tell Montana to tell Montana's father that "it's going to be $ 10,000" for the favorable testimony. The district judge allowed the marshal to testify to what he had heard. He also permitted the jury to learn that Dodd had passed a note to Montana's mother, but not that Montana's lawyer had been the courier. On appeal, defendant complained about his lawyer's having passed the note from the accomplice, which defendant argued made the lawyer's representation of him incompetent, and about the marshal's being permitted to testify to the accomplice's out-of-court statement, claiming it was hearsay.


Was the marshal’s testimony hearsay?




Defendant's conviction was affirmed. The court found that accomplice's testimony helped defendant somewhat since the jury acquitted defendant of the charge of having conspired to rob the bank. Performative utterances are not within the scope of the hearsay rule, because they do not make any truth claims. Had the marshal overheard Dodd tell Montana, "your father has promised me $ 10,000," Dodd's overheard statement would have been hearsay, because its value as evidence would have depended on its being truthful, that is, on such a promise having actually been made. But what in fact was overheard was merely a demand--in effect, "give me $ 10,000"--and so the only issue of credibility was whether the marshal was reporting the demand correctly, and his testimony was not hearsay.

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