# United States v. Honorable Jim R. Carrigan, and Peter Kiewit Sons' Company, Harold L. Cherry, and Richard L. McVaney Parties in Interest-Respondents

> Court of Appeals for the Tenth Circuit · November 7, 1986 · 804 F.2d 599

URL: https://www.frixlaw.com/law-library/cases/9475517

## Case

- **Full name:** UNITED STATES of America, Petitioner, v. Honorable Jim R. CARRIGAN, Respondent, and Peter Kiewit Sons’ Company, Harold L. Cherry, and Richard L. McVaney, Parties in Interest-Respondents
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** November 7, 1986
- **Citations:** 804 F.2d 599; 55 U.S.L.W. 2291; 1986 U.S. App. LEXIS 33354
- **Precedential status:** Published
- **Opinion:** Dissent by Moore
- **Judges:** Logan, Seymour, Moore
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475517

## How later opinions describe it (automated extraction)

- concluding that when a district court acts within its discretion in granting discovery motions "the threshold showing necessary to secure a writ of mandamus is higher than mere error, even error that might lead to reversal on a direct appeal,” and that ”[t]he trial court’s act…
- holding that under the “extraordinary circumstances” found by the district *347 court, it was not an abuse of discretion to order that defendants be permitted to take depositions of the witnesses in the presence of their attorney and the government’s counsel
- recognizing that "both sides have the right to interview witnesses before trial” and the prosecution should “not discourage or obstruct communications between prospective witnesses and defense counsel”
- holding that under the “extraordinary circumstances” found by the district court, it was not an abuse of discretion to order that defendants be permitted to take depositions of the witnesses in the presence of their attorney and the government’s counsel
- explaining that a district court has “inherent power to control and supervise its own proceedings”

## Opinion text

JOHN P. MOORE, Circuit Judge,
dissenting:
While I do not disagree with the legal principles set down by the court in this case, I cannot agree with the court’s analysis of the record. Accordingly, I must respectfully dissent.
The court here indicates a trial judge has authority to fashion expedient remedies in a criminal case when it is disclosed that the government has interfered with a defendant’s right of access. I agree with that rule as a general proposition, but this is not a case for its application. Here, the evidence simply does not support the conclusion upon which the trial court determined to apply that remedy. Because I believe the trial judge misconstrued the evidence, he ultimately usurped his authority by granting relief beyond the purview of the Rules of Criminal Procedure. I would, therefore, grant mandamus.
This court’s determination that the trial judge did not abuse his discretion in ordering oral depositions turns upon the conclusion that the evidence supports the trial court’s finding that the government interfered with the defendants’ right of access to prosecution witnesses. 1 While suggesting that were we to decide the facts we might even have reached the opposite conclusion, the court nevertheless follows the traditional course which yields to factual determinations made by the trial court. I have no quarrel with that tradition; indeed, its underpinnings are sound and not to be ignored. Consequently, I do not lightly state it is wrong to follow tradition here.
Yet, I am troubled deeply that by adhering to the trial court’s analysis of the evidence we have placed our imprimatur on an action that my judgment tells me is unfounded. My chief difficulty with the find *606 ings this court holds are not clearly erroneous is that those findings are rooted in the trial court’s conclusion that the testimony of Mr. Foster was more credible than that of the other witnesses. 2 The source of my trouble is that Mr. Foster’s testimony, insofar as it is contrary to that of the others, is pure hearsay. By definition, that testimony is inherently unreliable. Thus, we have before us a case in which a trial court chose to believe one witness rather than three, even though the testimony of the one was not clothed in the garb of credibility woven in the traditional fabric of reliability.
The court avoids dealing with this problem on the simple ground that the government made no objection. Unfortunately, we thereby beg the question. When a case is made to turn on the credibility of a witness, the nature and implications of his hearsay testimony cannot be shrugged off simply because no objection was made. The concern here is not whether Mr. Foster’s testimony was admissible, but whether it is by definition unreliable and thus an improper basis for determining credibility.
The credibility of testimony depends on the perception, memory, and narration of the witness. [See Fed.R.Evid. 801 advisory committee note, The Hearsay Problem.] The significance of hearsay and its affect on credibility was addressed by Chancellor Kent, who said: “Hearsay testimony is from the very nature of it attended with ... doubts and difficulties and it cannot clear them up. ‘A person who relates a hearsay is not obliged to enter into any particulars, to answer any question, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities; he entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.’ ” Coleman v. Southwick, 9 Johns. 50 (N.Y.1812), cited in McCormick’s Handbook of the Law of Evidence, § 245, at 583 (2d ed. 1972). Justice Marshall also lamented the “intrinsic weakness” of hearsay evidence. Mima Queen v. Hepburn, 7 Cranch 295 , 3 L.Ed. 348 (1813). Indeed, the hearsay rule exists because extrajudicial statements “lack the conventional indicia of reliability____” Chambers v. Mississippi, 410 U.S. 284, 298 , 93 S.Ct. 1038, 1047 , 35 L.Ed.2d 297 (1973). Reliability is the touchstone of credibility because the absence of reliability connotes “the diminished probability of factual accuracy in the evidence-gathering process.” Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 Harv.L.Rev. 1357, 1372 (1985). In the absence of a recognized exception which makes a hearsay statement reliable, and when no other “particularized guarantee of trustworthiness” is present, the evidence is presumptively unreliable. Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980).
The issue of reliability has been given another spin in this case because the fact finder used hearsay as a basis for determining credibility. The problem of reliability is thus enhanced because, in reality, it is not the credibility of the witness which is gleaned from his testimony but that of the declarant. See, Tribe, Triangulating Hearsay, 87 Harv.L.Rev. 957, 958 (1974). Here the trial judge listened to Mr. Foster say, in effect, that the witnesses told him the government did not want them to grant *607 defense interviews. Then the trial judge listened to those witnesses deny they had made such statements to Mr. Foster. The trial court resolved the dichotomy in the evidence by finding Mr. Foster was more credible on the subject of what the government actually told the other witnesses. Logic dictates that in order to reach this conclusion, the trial court had to believe that Mr. Foster was more credible because the witnesses told the truth when they talked to him, but they did not do so when they testified under oath. Thus postured, the inconsistency of the trial court’s findings becomes readily apparent.
Recognizing that the standard of review here is whether the trial court’s findings are clearly erroneous, I believe the standard is met in this case. I cannot perceive a justification of any kind for the finding that Mr. Foster was the more credible witness. I ascribe no misdeed to his testimony, for we must presume he was simply relating his recollection of what others told him. Yet, because the evidence upon which the trial court relied consisted only of that recollection, the inherent unreliability of the hearsay testimony undermined Mr. Foster’s credibility. Thus, when the trial court hinged its findings on the credibility of Mr. Foster, those findings became clearly erroneous. 3
The trial judge in this instance perceived a wrong which he thought should be averted. His motives are laudable and unassailable, but his remedy was not lawful. He usurped authority not granted by the Rules of Criminal Procedure because he believed justice required his intervention. Indeed, in a perfect world we would all aspire to do justice and follow the law, but when circumstances indicate it is impossible to do both, judges are bound to the latter course.
. I have some trouble characterizing the basis for the trial court’s order. The written order entered after the petition was filed in this case appears to sanction the government for improper conduct; yet, the oral order entered following the hearing casts the relief in a different form. Indeed, the judge stated in his bench ruling: "I think it’s grossly unfair, when a person is charged with a crime, with a serious crime as this, that the one side has substantial access to the witnesses in advance and the other side not. The whole idea of an adversary system is that there should be equal opportunity from both sides to bring out the truth.” Nevertheless, this court’s opinion proceeds from the basis that the depositions were ordered as a sanction, and I shall accept that lead.
. The court notes the trial judge also relied upon the credibility of Mr. Thompson, the attorney for the witnesses. However, other than testifying that his clients possibly could have concluded the government would not have had the witnesses interviewed if it “had its druthers," Mr. Thompson’s testimony is not supportive of the trial court’s conclusions. Indeed, Mr. Thompson testified that he decided it was not in his clients’ interest to grant interviews. Moreover, on the basis of Mr. Thompson’s advice, the witnesses perceived that their self-interests, and not the government’s influence, militated against talking with defense representatives. Indeed, Mr. Thompson stated: “[Tjhere was no advantage for us to give a statement and if there was no advantage there is going to be disadvantages and so we decided not to give the statement.”
. The court states the "[FJactual circumstances of the case before us, as found by the district judge, echo those of Gregory v. United States, 369 F.2d 185 (D.C.Cir.1966).” I disagree. In Gregory , the prosecutor did not deny placing limitations on the defendant’s right of access, but here the prosecutors and the witnesses themselves stated no limitations were invoked. Indeed, the trial court found the limitations only by drawing inferences from the testimony which are not supportable in the record. I do not think there is a parallel here with Gregory at all.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475517. Public record. Not legal advice.