concluding that, even though Rule 804(b)(5) does not prohibit the admission of grand jury testimony thereunder, we would admit “only extraordinarily trustworthy grand-jury testimony ... as proof of the matter asserted” and we would not “sanction admission of proffered grand-jury testimony if its trustworthiness-and reliability were open to troubling doubt”
How later courts described this case
- concluding that, even though Rule 804(b)(5) does not prohibit the admission of grand jury testimony thereunder, we would admit “only extraordinarily trustworthy grand-jury testimony ... as proof of the matter asserted” and we would not “sanction admission of proffered grand-jury testimony if its trustworthiness-and reliability were open to troubling doubt”
- considering “those statements that are similar though not identical to hearsay clearly falling under one of the four codified exceptions, if the statements otherwise bear indicia of trustworthiness equivalent to those exceptions.”
- concluding that, even though Rule 804(b)(5
- recognizing that corroborating evidence must be "extraordinarily strong" to support admission of hearsay evidence under former 804(b)(5)
Written by the judges who cited it.
The opinion
HATCHETT, Circuit Judge,
concurring in part and dissenting in part:
I concur in part and dissent in part with the majority’s decision. I agree with the majority that the admission of Espinosa’s grand jury testimony constitutes reversible error, and therefore, would reverse the conspiracy convictions against Fernandez, Re-carey, and Del Ray. Furthermore, I concur in the majority’s decision to affirm Del Ray’s conviction for illegally influencing the operation of an employee-benefit plan. I dissent, however, from the majority’s decision to sever Del Ray’s conspiracy trial from the conspiracy trial against Fernandez and Recarey.
While I concede that the government must present evidence to demonstrate that Del Ray and Fernandez interacted concerning a common illegal object, I disagree with the majority’s conclusion that the government did not present sufficient evidence of such interaction; viewing the evidence most favorably toward the government, the jury could reasonably conclude that Fernandez, Del Ray, Recarey, and Miguel participated in a single conspiracy. See Levine, 546 F.2d at 663.
The government demonstrated that Miguel, Fernandez, Del Ray and Recarey privately met prior to IMC obtaining the contract, and that after this meeting Miguel made payments to Fernandez and Del Ray. The jury could rely on the meeting between Fernandez, Del Ray, Recarey and Miguel to find the requisite connection between Fernandez and Del Ray, notwithstanding the former Fifth Circuit’s decision in Wies-chenberg. In Wieschenberg, the court held that the government cannot use “mere discussions susceptible of either an illegal or a legal interpretation” to establish a conspiracy. Wieschenberg, 604 F.2d at 335. The Wieschenberg court, however, expressly limited its holding to cases where the alleged conspirators were “involved in both legal and illegal activities.” Wieschenberg, 604 F.2d at 335 n. 8. Contrary to the majority’s conclusion, nothing in the evidence demonstrates that Miguel, Fernandez, Recarey and Del Ray were involved in a legal activity ... i.e., pursuing legal means to obtain the contract for IMC. Moreover, unlike Wieschenberg, no evidence dispels the plausibility of the jury’s inference that the meeting concerned the subsequent bribes. Rather, the evidence supports the inference of unlawful activity at this meeting because the government presented evidence of subsequent payments from Miguel to Fernandez and Del Ray.
Therefore, I would affirm denial of Del Ray’s severance motion because the government properly tried the appellants as a single conspiracy. I would accordingly order the retrial of the appellants on the conspiracy count in a single trial without the introduction of Espinosa’s grand jury testimony.