Supreme Court Considers a Mercenary’s Confession and the Confrontation Clause

WASHINGTON — In a Supreme Court argument on Wednesday arising from a murder for hire in the Philippines involving a two-man “kill team,” the justices struggled with how to handle a federal agent’s testimony about a confession from one of the defendants implicating the second defendant.

The justices have long sought to draw a line that allows juries to hear such testimony while protecting the Sixth Amendment right of the other defendant in a joint trial “to be confronted with the witnesses against him.” That line appeared to remain elusive after the argument in the case.

The case, Samia v. United States, No. 22-196, arose from the activities of an international crime syndicate responsible for, in one judge’s words, “an array of crimes worthy of a James Bond villain.”

A second judge, describing the syndicate’s leader, Paul Le Roux, wrote that “the scale and variety of his outrageous criminal conduct defies an easy summary, and includes arms and technology dealings with Iran and North Korea, attempts at minor warlordism in Africa, and the plotting of a coup d’état in the Seychelles.”

The murder for hire, of a real estate agent in the Philippines who Mr. Le Roux thought had cheated him, took place in 2012. (“I had her killed,” he testified in 2018, after he was arrested and began cooperating with the government.)

Mr. Le Roux said the murder was carried out by two mercenaries he had hired after instructing Joseph Hunter, a subordinate, to assemble “a new kill team.” The men, Adam Samia and Carl D. Stillwell, traveled to Manila. Posing as potential buyers, prosecutors said, they had the agent, Catherine Lee, take them on a tour of several properties.

Ms. Lee’s body was later found dumped on a pile of garbage. She had been shot twice in the face at close range.

The two men, along with Mr. Hunter, were tried together for their roles in the murder, which prosecutors said started with a conspiracy to commit murder while still in the United States. Mr. Stillwell and Mr. Hunter did not dispute that they had participated in the crime and contested only the U.S. government’s jurisdiction over it. Mr. Samia maintained his innocence.

All three were convicted and sentenced to life in prison.

The question for the justices was what to do about a statement Mr. Stillwell had given to a federal agent that acknowledged his own role in the murder and described Mr. Samia’s participation. Lawyers for Mr. Samia said that letting the agent describe Mr. Stillwell’s accusations violated the confrontation clause because Mr. Stillwell himself would not testify and so could not be questioned about them.

The trial judge’s solution was to allow the agent to testify about the confession but to omit Mr. Samia’s name, substituting bland phrases like “another person.”

The agent testified, for instance, that Mr. Stillwell had “described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving.” The judge instructed the jury that the agent’s testimony was “only admissible as to Mr. Stillwell.”

Kannon K. Shanmugam, a lawyer for Mr. Samia, said that was not good enough.

“The prosecution’s questioning of the agent who took the confession left little doubt that the confessing defendant had named ‘the other person,’” Mr. Shanmugam said, adding that his client “was the only defendant who plausibly could have been ‘the other person.’”

Chief Justice John G. Roberts Jr. said that was debatable. “Maybe they will wonder,” he said of the jury, “‘Well, why are they saying another person if it was this guy, and it must be because it’s somebody else that they haven’t brought to trial.’”

Justice Amy Coney Barrett said the implication of Mr. Shanmugam’s position was extreme.

“At the end of the day,” she said, “it boils down to, you just can’t try two defendants together if you have a nontestifying defendant and a confession.”

Caroline A. Flynn, a lawyer for the federal government, said the trial judge had made a sensible compromise. “Confessions that replace a defendant’s name with a natural-sounding noun or pronoun do not give rise to an overwhelming probability of juror disobedience,” she said.

Justice Elena Kagan seemed doubtful. She described a hypothetical scenario: “John and Mary go out and they rob Bill, and they’re found out, and they’re put on trial, and they’re put on trial together. And John has confessed. Let’s say he said, ‘Mary and I went out and robbed Bill.’”

Ms. Flynn said allowing the confession in that form was improper. So was inserting the word “redacted,” she said, for Mary’s name.

Justice Kagan then asked about another kind of alteration. What if, she asked, “the confession says, ‘She and I went out and robbed Bill,’ or it says, ‘The woman and I went out and robbed Bill.’”

Ms. Flynn said that alternative would not offend the Constitution.

Justice Samuel A. Alito Jr. said there were only two “analytically pure” ways to think about the problem. One, he said, was to trust that juries will follow the judge’s instructions. The other, he said, was to assume juries cannot ignore what they infer from references to other defendants in a confession.

Mr. Shanmugam argued for something like the second approach.

“If you throw a skunk in the jury box, you can’t instruct the jurors not to smell it,” he said. “And I would submit that this is a case in which the government not only threw a skunk into the jury box but pointed to it repeatedly. And the jury could hardly be expected to ignore it.”