United States v. Nelson Bernardo Gomez-Lemos

DAVID A. NELSON, Circuit Judge,

concurring.

Like my colleagues on the panel, I believe that unless Supreme Court precedent compels a different result, we should try to give the words of the Confrontation Clause the meaning commonly attributed to them at the time the Sixth Amendment was adopted. It is sometimes very difficult to ascertain the precise meaning of language two centuries old, but no such difficulty is presented here. When the Sixth Amendment was adopted, it surely incorporated what Chief Judge Merritt eloquently describes as “the ancient faith of the common law ... that live confrontation and cross-examination of witnesses in the courtroom is the key to finding the truth in a criminal trial.”

When Sir Edward Coke published his Institutes in the seventeenth century, there were still courts in England that relied on written depositions taken by “commissioners” who elicited testimony without cross-examination and without the defendant being present. The Court of Chancery normally proceeded on this kind of sworn hearsay in equity cases, for example, and the notorious Court of Star Chamber was empowered to proceed the same way in criminal cases. See Coke, Fourth Institute, Chapters 5 and 64.

The Court of Star Chamber was abolished in 1641, and its name has been a term of opprobrium throughout the English-speaking world from that time to this. The framers of our Constitution were well aware of England’s unhappy experience with Star Chamber procedures, and the Sixth Amendment was designed, in part, to forbid the use of the most objectionable of these procedures in the criminal courts of the United States. If the Sixth Amendment is to be applied in accordance with its original meaning, then, I have no hesitancy in saying that “the presumption of inadmissibility accorded accusatory hearsay statements not admitted pursuant to a firmly rooted hearsay exception,” Idaho v. Wright, — U.S. —, 110 S.Ct. 3139, 3152 , 111 L.Ed.2d 638 (1990), is strong enough to apply to accusatory hearsay statements made under oath before a grand jury. 1

We must acknowledge, nonetheless, that although the constitutional right of confrontation 2 extends, by its terms, to “all” *335 criminal prosecutions, the Supreme Court has from time to time found reason to allow the admission of hearsay statements that “might be thought to violate the literal terms of the [Confrontation] Clause.” Id. 110 S.Ct. at 3145 . Exclusion of such statements is the norm, but the Supreme Court recognizes a “rule of necessity” under which statements of witnesses who are unavailable to testify at trial may sometimes be admitted. Where such statements do not fall within a firmly rooted hearsay exception, the circumstances of the utterance must provide “particularized guarantees of trustworthiness” — and unless these guarantees are “so clear ... that the test of cross-examination would be of marginal utility,” the rule of necessity cannot overcome the terms of the Constitution. Id. at 3148-49 .

The Supreme Court has not yet had occasion to decide whether the test of cross-examination would be of only “marginal utility” in the case of sworn testimony, not obviously false, delivered before a grand jury. Generally speaking, at least, such testimony has not traditionally been viewed with the “special suspicion,” see Lee v. Illinois, 476 U.S. 530, 541 , 106 S.Ct. 2056, 2062 , 90 L.Ed.2d 514 (1986), that attaches to unsworn statements given to a policeman at the time of an arrest. It remains an open question whether the Supreme Court will view the indicia of reliability normally accompanying grand jury testimony as adequate to make such testimony admissible at trial if the witness is not available to testify there.

Unlike my colleagues, I am not sure that this question remains an open one in our circuit. In United States v. Curro, 847 F.2d 325 (6th Cir), cert. denied, 488 U.S. 843 , 109 S.Ct. 116 , 102 L.Ed.2d 90 (1988), a decision published two years after Lee v. Illinois, we upheld a criminal conviction despite the introduction at trial of testimony given before a grand jury by a witness (a convicted felon named Louzon) who later committed suicide. Louzon’s grand jury testimony was corroborated by independent evidence — a circumstance that under Idaho v. Wright is entitled to no weight — but this was only one of a number of factors we cited in holding the testimony admissible:

“Additionally, Louzon’s testimony, delivered at his second grand jury appearance, tracked the testimony of his first appearance. The testimony was given under oath and was never recanted. It involved matters about which Louzon had first-hand knowledge. At the second appearance, Louzon had use immunity and, thus, had additional motivation for telling the truth. It is also clear, as the district court observed, that by testifying before the grand jury Louzon put himself at risk, or at least felt he was at risk, either one of which is another indicator of reliability. Finally, the testimony itself was internally consistent and believable in light of other facts made apparent at trial.” 847 F.2d at 327 .

These indicia of trustworthiness resemble, in several respects, those present in United States v. Barlow, 693 F.2d 954 (6th Cir.1982), cert. denied, 461 U.S. 945 , 103 S.Ct. 2124 , 77 L.Ed.2d 1304 (1983), another published decision where we upheld the admissibility of grand jury testimony given by a witness who was not available to testify at trial. Although the substance of the grand jury testimony in Barlow was corroborated by separate testimonial and physical evidence, this again was but one of several factors we considered pertinent. Other factors included the circumstance that the declarant had been given immunity from prosecution and thus “had no motive to implicate the defendant and exculpate herself,” id. at 962 ; the circumstance that the grand jury testimony was based on personal knowledge; and the circumstance that by itself, the testimony did not relate to evidence of criminal activity. In addition, we said, the trial court could appropriately examine the reason for the unavailability of the witness.

The reason for the unavailability of the two witnesses with whom we are concerned in the case at bar seems to have been that both were simply afraid to testify. Witness Barraza explained from the stand that “I have a family and I just don’t feel ... that I want to jeopardize my family.” Witness Osorio, when asked if he had not told the government he was unwilling to testify *336 because he was in fear for himself and his family, refused to give any answer at all. “[I]t’s obvious,” the district court found, “that this witness is afraid to testify.” The district court made a similar finding with respect to Barraza, adding that “[w]hile there is no direct evidence^] it would appear that the Defendant may have had a role in making the witness unavailable.”

We have no basis at all for supposing that it was the government the witnesses were afraid of, and not the defendant. It would be fanciful to assume that the unavailability of the witnesses might have been planned by the government. In our country, fortunately, even the most zealous of prosecutors is unlikely to threaten violence; and although it is conceivable that the government would have preferred that Messrs. Barraza and Osoria not testify, it is far likelier that the government would have preferred that the jury hear their testimony live. Canned testimony read by another is seldom as effective as testimony which the jury hears directly from the witness.

Although we have no reason to suspect that the government had anything to do with the refusal of Barraza and Osorio to testify, it does not follow, of course, that the defendant prevailed upon them to remain silent. A third party might have done so on his own initiative, or the witnesses might have been afraid of the defendant without the defendant’s having done anything to inspire such fear. If the trial court had been able to find as a fact that the defendant silenced the witnesses, I would have had no hesitancy in holding that there was a waiver of the defendant’s rights under the Confrontation Clause. On the record before us, however, I see no adequate basis for a finding of waiver.

Under our holdings in Curro and Barlow , a finding of waiver is unnecessary if the grand jury testimony appears trustworthy. Even without the separate corroborating evidence that Idaho v. Wright tells us is irrelevant, the logic of Curro and Barlow suggests that the grand jury testimony at issue in those cases would have been deemed sufficiently trustworthy to warrant admission at trial. In both cases, the statements of the unavailable declarants were given under oath, subject to the penalties for perjury, and were never recanted. 3 In both cases the statements before the grand jury were made under a grant of immunity from prosecution. And in both cases the declarant had direct knowledge of the matters discussed. Nothing in Idaho v. Wright makes it inevitable that Curro and Barlow would be decided differently today; and if the grand jury testimony in Curro and Barlow would be admissible today, I am frank to say that I can see no reason why the grand jury testimony of Messrs. Barraza and Osorio would not likewise be admissible.

Assuming, contrary to the assumption of my colleagues, that Curro and Barlow may still be good law in this circuit, I must come to terms with the tradition of this court which teaches that published panel opinions must be followed by subsequent panels. The latest version of our “Court Policies” says this on the subject:

“Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration is required to overrule a published opinion of this court.” Court Policies-Sixth Circuit, Section 10.2 (Spring 1991).

Given my doubts as to the current status of Curro and Barlow , I am constrained to say that if the government applies for rehearing en banc in this ease, I shall support the application. (This does not imply any predisposition to change my views on the merits of the case. I think the panel is correct in its reading of the Confrontation Clause, and, the government not having argued harmless error, I believe the defendant is entitled to a new trial.)

. To supplement Chief Judge Merritt’s discussion of the common law’s historic antipathy to even sworn hearsay, I invite the reader’s attention to the excerpt from Sir Matthew Hale’s History of the Common Law reprinted at Vol. 5 of Kurland & Lerner, The Founders’ Constitution, page 248 (1987). Published posthumously in 1713, Hale’s work presents a detailed and highly persuasive statement of reasons why testimony given “in private before a Commissioner or Two, and a couple of Clerks” is grossly inferior to the presentation of evidence in open court with all concerned — including, interestingly enough, members of the jury — having a right to ask questions of the witnesses.

. It is axiomatic, of course, that the right of confrontation includes a right of cross-examination. Lee v. Illinois, 476 U.S. 530, 539 , 106 S.Ct. 2056, 2065 , 90 L.Ed.2d 514 (1986); Pointer v. Texas, 380 U.S. 400, 404 , 85 S.Ct. 1065, 1068 , 13 L.Ed.2d 923 (1965).

. In the case at bar, similarly, the witnesses were given several opportunities to recant their grand jury testimony, but they never recanted.