if Government has two equally good sources, it should not rely on the absent witness
How later courts described this case
- if Government has two equally good sources, it should not rely on the absent witness
- “An appellate court is not the proper forum to conduct the needed factual hearing required under [Enright and Vinson ].”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by United States v. Nelson Bernardo Gomez-Lemos, 939 F.2d 326 (1991)
847 F.2d 325, 328 (6th Cir.1988), overruled on other grounds, United States v. Gomez-Lemos, 939 F.2d 326, 332 (6th Cir.1991).
The opinion
JOHNSTONE, Chief District Judge,
concurring.
While concurring with the conclusion reached by the majority, I write separately because the transcript of Louzon’s Grand Jury testimony included extensive statements not related to or in the furtherance of the conspiracy, which statements were hearsay to the second and third power. A large portion of the transcript was admissible under the reasons stated by the majority; other portions were not. These inadmissible, non-conspiratorial statements could have been excised from the transcript before permitting it to be read to the jury. To bootstrap the inadmissible evidence through Fed.R.Ev. 804(b)(5) constitutes error. However, the error was harmless in view of the overwhelming evidence against the defendant.