Petition for Writ of Certiorari — Workman v. United States

IN THE

Supreme Court of the United States

October Term, 1988

PERLIE DONALD WORKMAN

and JEFFREY WORKMAN,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

C. Gary Triggs Douglas F. Powell

Post Office Drawer 579 Attorney at Law

Morganton, NC 28655 216 East Concord Street

(704) 433-0872 Morganton, NC 28655

(704) 437-4664

Counsel for Petitioners Counsel of Record

for Petitioners

EE NTE A STE POO TELS CONOR EE

APPELLATE PRINTING SERVICES. INC HERITAGE BLOG RICHMOND. VA (804) 643-7789

QUESTIONS PRESENTED

I. Did the Court of Appeals ignore

this Court’s decisions in Lee vv.

Illinois, 106 S. Ct. 2056, 2062 (1986),

and Bruton v. United States, 391 U.S. 123

| (1968), in making the erroneous finding

that the introduction of the statement of

a deceased government witness was not a

violation of the Sixth Amendment right of

the Defendant to confront and cross-

examine witnesses against him?

II. Did the Court of Appeals ignore

or misapply the standards as set forth by

this Court in determining that the Davis

statement was admissible under a firmly

established exception, Federal Rule of

Evidence 804(b)(5) and therefore did not

violate either the Sixth Amendment or

Bruton principle?

III. Did the Court of Appeals err

in finding that sufficient evidence

existed to convict petitioner Perlie

Donald Workman oof intimidating and

threatening a witness in violation of 18

U.S.C. Section 1512(b)(1)?

ee al RE Ean tet Pam Ta a eins Mi loa

Os oe as

ii

PARTIES

The parties to this proceeding are

the petitioners (defendants below),

Perlie Donald Workman and Jeffrey

Workman, and respondent (plaintiff below)

United States of America.

iii

TABLE OF CONTENTS

Questions Presented.........eeeeeecccceed

yt) eer rer rr rr rrr rr rrr rrr: |

Table of AuthoritieS..... cee ee eeeeeeee eV

Opinions Below... ..cccccccccccccccccccced

PUPERUABEAGs on cc rctdccsncesenssssaccunse

Statement of the Case... eeeeeeeeeeeed

Reasons for Granting the Writ..........15

iv

folate ese BG

eee et en Cer Ee er a ae

1 a SS Oe AO NAR a

Cases Page

Bourjaily v. United States, 23, 24

107 S. Ct. 2775 (1987)

Bruton v. United States, 15, 16, 19, 20,

391 U.S. 123 (1968) 21, 24, & 37

California v. Green, 18

399 U.S. 149, 158 (1970)

Close v. United States, 22

450 F.2d 152 (4th Cir. 1971),

cert. denied,

404 U.S. 1068 (1972)

Cruz _v. Illinois, 20

supra

, a3, 24

107 S. Ct. 1714 (1987)

Douglas v. Alabama, 19, 20

380 U.S. 415 (1965)

Dutton v. Evans, 25

400 U.S. 74 (1970)

Hendrix v. Smith, 28

639 F.2d 113 (2d Cir. 1981)

Lee v. Illinois, 15, 16, 17, 19, 20, & 37

106 S. Ct. 2056, 2062 (1986)

Messiah v. U.S., 34, 35

377 U.S. 201 (1964)

Ohio v. Roberts, 29

448 U.S. 56, 66 (1980)

Pointer v. Texas, 17

380 U.S. 400, Section 405 (1965)

, 27

607 F. 2d 572 (2nd Cir.) (1979),

cert. denied, 447 U.S. 920 (1980)

27, 28

,

581 F.2d 341 (3d Cir. 1978)

United States v. Brown, 33

763 F.2d 987 (8th Cir. 1985)

cert. denied, 106 Sup. Ct. 273 (1986)

United States v. Carter, 34

522 F.2d 606 (D.C. Cir. 1975)

Vv

. 27, 20

559 F.2d 1271 (5th Cir. 1977)

.° 34, 33

534 F.2d 1020, 1027 (2nd Cir.)

cert. denied, 419 U.S. 1022 (1976) -

United States v. Oliver, 26, 28

626 F.2d 254 (2d Cir. 1980)

United States v. Wilson, 32

565 F. Supp. 1416, 1413

(S.D. N.Y.; (1983)

Rules

Federal Rules of Evidence 25, 27, 28, 30

804(b)(3)

~

Federal Rule of Evidence, 14, 15, 16

804(b) (5)

18 U.S.C. Section 2 3

18 U.S.C. Section 659 3

18 U.S.C. Section 1512(a)(1) 31, 32, 33,

& 34

18 U.S.C. Section 1512(b)(1) 3, &

Fourth Amendment 35

Fifth Amendment 35

Sixth Amendment 4, 17, 18, 20, 22, 29,

35 & 36

vi

ee ee ee ee ee ee ee

_ dente Tite intone

ak owen pharm Neral Mid A Se al

No. 88

UNITED STATES SUPREME COURT

October Term 1988

PERLIE DONALD WORKMAN

and JEFFREY WORKMAN,

Petitioners,

Vv.

UNITED STATES OF

AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners, Perlie Donald Workman

and Jeffrey Workman, respectfully pray

that a writ of certiorari issue to review

the judgment and opinion of the United

States Court of Appeals for the Fourth

Circuit entered in the proceeding on

October 26, 1988.

OPINIONS BELOW

The decision of the Court of Appeals

is reported at. 860 F.2d 140 Fourth Circuit 1988, and

appears at pp. Al1-A28 in the separate

Appendix to this Petition.

JURISDICTION

The judgment of the Court of Appeals

was entered on October 26, 1988. This

petition is filed within 90 days of that

date. The Court’s jurisdiction is

invoked under 28 U.S.C. Sec. 1254 (1).

STATEMENT OF THE CASE

On October 26, 1988, the United

States Court of Appeals for the Fourth

Circuit entered a published opinion as

shown in a separate appendix pp. Al1-A28

affirming the District Court judgment

entered on August £ =“S, 1987. The

petitioner, Perlie D. Workman, was

convicted of possession of goods ond

chattels, which were stolen and which had

been part of an interstate shipment in

violation of 18 U.S.C. Section 659.

Petitioner, Jeffrey Workman, was

convicted of aiding and abetting in said

possession in ‘violation of 18 U.S.C.

needa CV EEI An, a My FINS ac Sel te

hl a aie ic RO

Section 659 and 2. Perlie Workman was

also convicted of intimidating and

threatening a witness in violation of 18

U.S.C. Section 1512(b)(1). Both

petitioners challenged their convictions

and argued that the introduction into

evidence of the previously recorded

statement of Terry Davis, who’ was

deceased at the time of the trial, over

their objection, violated their Sixth

Amendment right to confrontation of this

witness and also violated the Federal

Rules of Evidence. It was argued that

without the Davis statement, which had

been given to FBI Agent, John Turner, and

recorded by Davis’ attorney Joe Byrd, the

evidence supporting the possession count

and the aiding and abetting counts would

not have been sufficient to convict. At

the trial, evidence as adduced, tended to

show that Joe K. Byrd, Jr., an attorney

in Morganton, North Carolina, had been

employed to represent Terry Davis, an

indicted co-defendant of the petitioners,

who when first interviewed by Byrd, never

mentioned Jeffrey Workman or Perlie

Workman as having been involved in the

alleged actions for which the petitioners

were tried and that only after Davis was

made an offer by the United States

Attorney and the government, in the form

of a plea arrangement, did he make any

statements implicating the petitioners.

After the plea arrangement’ was

entered into with the government, Davis,

in the presence of Byrd and FBI Agent

Turner, made a recorded statement in

which he implicated the petitioners as

having been involved in the possession

and purchase of the merchandise in

question, said interview having been

=

conducted on May 12, 19867.

rere

fe ee TN ee eee nen ee et eee eri

ii i ts a ee AR ee Oe eae oF

The co-defendant, Davis, later died

and the tape recording was introduced

into evidence by the government over the

objection of the petitioners’ attorney.

The government, at the time of the

trial of this matter, called Ronald Wayne

Wilson, an additional co-defendant, as a

witness to testify concerning the events

and his involvement in the theft of the

liquor. During the testimony in District

Court, he advised that he at no time saw

anyone unloading the truck which

contained the liquor and further advised

that he did not know the petitioner,

Perlie Workman, personally but did know

where he lived and that he saw the truck

parked across the road from the Workman

house, however, he did not know where the

Workman business was. located. Wilson

further testified that -he knew = an

individual named William Keith Hughes,

i

who went by the name of Keith, whom he

had met while in prison and that during

the time prior to the trial, he talked

with William Keith Hughes about the

matters involving t*?s case and wrote a

letter to William Keith Hughes after he

(Wilson) was release from prison and

while Hughes was still incarcerated in

the Rutherford County jail. The letter,

introduced in the trial of this matter in

the District Court, which is reproduced

in the separate appendix pp. A28,

indicated to Hughes that as far as Wilson

knew, the petitioners had nothing to do

with the shipment of liquor at any time.

The letter clearly indicated that the

implication by the government’s witness,

Davis, was contrived to obtain

concessions or sentence reduction from

the government. The co-defendant,

Wilson, further testified that while he

was in the Rutherford County jail, the

deceased co-defendant, Terry Zaine Davis,

came to see him on several occasions and

attempted to get him to testify against

the petitioners.

The government also called James

Edward Norman as a witness and during the

Norman testimony, Mr. Norman advised that

he was from Blacksburg, South Carolina,

and that he knew the petitioners as

legitimate businessmen, having done

business with them in the textile trade

for a number of years. He further

testified that he had made calls, both

before and after July of 1986, to

petitioner Perlie Workman but that this

was not involved in any way with the

alleged theft of the liquor.

Norman advised that a boy had called

him and wanted to sell some gin and that

when he first called, Norman had refused,

saying he was not interested, however,

sometime later in the day he decided to

purchase the liquor since he had a

"“gasohol" license. He testified that he

purchased the 450 cases of gin, most of

which was in half-gallon jars, packed six

to the case, and advised that he at no

time made any purchase, nor to his

knowledge was the petitioner, Perlie

Workman, involved in any way. Norman

further testified that he had entered a

plea of no contest in South Carolina,

through his attorney, to the charge of

receiving stolen goods into interstate

commerce in United States District Court,

Greenville District, Greenville, South

Carolina, and thereafter was sentenced,

with his sentence presently being

appealed. He further testified that he

had a legitimate relationship with the

petitioners in which he purchased socks

or textile goods. He testified that he

had never been involved with’ the

petitioners in the purchase of _ the

alcohol in question, that he had spoken

with Special Agent Turner, who had asked

him to testify against the petitioner,

Perlie Workman, and in return, meetar

Agent Turner had promised to give him

probation in his case at which time

Norman asked Agent Turner if he was

asking him to tell a lie to help himself,

that he had previously told the officers

that petitioner, Perlie Workman, was not

involved in the purchase or sale of

alcohol and that it was the truth then

and was the truth at the time of his

testimony in Court. Further he testified

that he was not trying to protect the

petitioners but was telling the truth and

that the person he actually purchased the

liquor from used the nickname "Black Cat"

and that there was no doubt in his mind

that the person he purchased the gin from

was not the petitioners, and that he had

told the FBI agent that it was net the

petitioner, Perlie Workman.

The defendants called at the trial

of this matter as a witness, William

Keith Hughes, who had previously been

identified by the government witness,

Ronald Wayne Wilson, as the individual

whom he had met in prison and to whom he

had . sent the _ letter, marked aS a

Defendant’s Exhibit, and shown in the

separate appendix, pp. A2s. Hughes

testified that he had been incarcerated

in the Rutherford County jail, and while

there, came to know Wilson, and remained

in jail as a Federal prisoner after

Wilson was released, that he received the

letter in question from Wilson, which is

*the same letter marked as

10

Defendant’s/Petitioner’s Exhibit 1, which

he received in the mail and had furnished

the original of said letter to the

petitioners’ attorney after he had

received the same from Wilson. In the

letter, which was read to the jury,

Wilson advised that Terry Davis was

pleading not guilty in return for a plea

bargain and that Davis had come to

Rutherfordton several times to try to get

Wilson to say that he knew Workman and

bought "the stuff", referring to the

stolen liquor. He further advised in the

letter that he was not going to lie to

help Terry, that the person who had

purchased the liquor was a man from South

Carolina, and that Terry had sold the

load to him, that he had been indicted

and was in Court also. He further

testified that Terry was trying to put

the blame on petitioner, Perlie Workman,

11

that he signed the letter "Ron". and-.

addressed the letter to "Keith" and that

the letter was dated June i18th. He

further advised that he had been told by

Wilson that Wilson did not know Perlie

Workman, that he had been pressured into

saying that he did so that he could make

bond with a promise of probation by the

FBI. The petitioners argued at the

trial, that the statements of the co-

defendants, as well as other government

witnesses and the exhibits offered by the

Defendants in the form of the letter,

clearly demonstrated that the statement

introduced by the government did not have

sufficient guarantees of reliability, and

in fact, through the evidence adduced at

trial, was shown to be patently

unreliable and likely the product of the

deceased witness made in a desire to

curry favor from the government or obtain

12

plea concessions.

The evidence was further adduced at

the trial indicating that the deceased

witness, Davis, was known by the

nickname, "Black Cat", which, the

petitioners’ attorneys argued to. the

Trial Court, corresponded with the

information given by James Edward Norman

and Ronald Wayne Wilson and raised

serious questions as to the reliability

or truthfulness of the statement of

Davis.

On appeal to the Fourth Circuit

Court of Appeals, the petitioners argued

that the inclusion of the testimony of

Davis, over the objections of the

petitioners at trial, violated their

Sixth Amendment right to confront and

cross-examine the witnesses against then.

Circuit Judge Chapman, in writing

the opinion for the Court, rejected the

13

arguments of the petitioners, finding, it

is argued erroneously, that the admission

of the statement did not violate this

Court’s criteria for admission of such

evidence as set forth in Bruton v. United

States, 391 U.S. 123 (1968).

The government claimed and the Court

of Appeals determined that Davis’

statement was admissible under’ the

hearsay exception as set forth in Federal

Rule of Evidence 804(b)(5), and therefore

it did not violate either the Sixth

Amendment or Bruton principle. The Court

erroneously concluded, it is respectfully

argued, that they were not faced with a

Bruton issue, but rather with a hearsay

question.

It is contended that the Court of

Appeals completely ignored this Court’s

directives as set forth in Lee v.

Illinois, 106 S. Ct. 2056 (1986), and in

14

so doing, entered an opinion in direct

contradiction of the position taken by

this Honorable Court in Bruton and Lee.

REASONS FOR GRANTING THE WRIT

I. THE COURT BELOW APPARENTLY IGNORED

THIS COURT’S DECISIONS IN LEE V.

ILLINOIS, S. CT. 2056 (1986) AND BRUTON

V. UNITED STATES, 391 U.S. 123 (1968), IN

; MAKING THE ERRONEOUS FINDINGS SUPPORTING

THE INTRODUCTION OF THE STATEMENT OF A

DECEASED GOVERNMENT WITNESS AND FINDING

THAT THE SAME WAS NOT A VIOLATION OF THE

SIXTH AMENDMENT RIGHT OF THE DEFENDANT TO

CONFRONT AND CROSS-EXAMINE WITNESSES

AGAINST HIM.

The district court, over the

objection of the petitioners’ counsel,

admitted into evidence incriminating

statements by Terry Zaine Davis, a

deceased co-defendant, and in so doing,

it is argued, committed clear error.

The petitioners’ appealed to the

Fourth Circuit Court of Appeals and there

Judge Chapman, speaking for the Court,

determined that the Davis statement was

admissible under a firmly established

15

hearsay exception, Federal Rules of

Evidence 804(b)(5)1 and therefore did not

violate either the Sixth Amendment or the

Bruton principle. It is well established

that "the right to confrontation and

cross-examination is an essential and

fundamental requirement for the kind of

fair trial which is this country’s

~

constitutional goal", Pointer v. Texas,

380 U.S. 400 Section 405 (1965), as

recently noted by this Honorable Court in

Lee _v. Illinois, 106 S. Ct. 2056, 2062

(1986). The Sixth Amendment serves both

symbolic and functional goals. On the

one hand, the right to confront and

cross-examine witnesses contributes to

the establishment of the system of

justice in which the perception, as well

as the reality of fairness, prevails by

insuring that convictions will not be

based on the “charges of unchallenged

16

witnesses. On the other hand, the Sixth

Amendment serves the practical goal of

promoting reliability in criminal trials.

In California v. Green, 399 U.S. 149, 158

(1970), the court emphasized the manner

in which confrontational cross-

examination advanced the pursuit of truth

in criminal trials:

Confrontation: (1) insures

that the witness will give his

statements under oath--thus

impressing him with the

seriousness of the matter and

guarding against the lie by

possibility of a penalty for

perjury; (2) forces the witness

to submit to cross-examination,

the "greatest legal engine ever

invented for the discovery of

truth"; (3) permits the jury

that is to decide the

defendant’s fate to observe the

demeanor of the witness. in

making his statement, thus

aiding the jury in assessing

his credibility.

(Footnote omitted. )

The courts have long recognized that

the truth-finding function of the Sixth

Amendment is particularly threatened when

17

an alleged accomplice’s statement is

sought to be introduced against a

criminal defendant without the benefits

of cross-examination. Lee v. Illinois,

Supra, 106 S. Ct. at 2062; Bruton v.

United States, 391 U.S. 123 (1968)?

Douglas v. Alabama, 380 U.S. 415 (1965).

As this Court stated in Lee v. Illinois,

gaupra, 106 S$. Ct. at 2062, euch ae

statement

"is hearsay, subject to all the

dangers of inaccuracy which

characterize hearsay

generally....More than this,

however, the post-arrest

statements of a co-defendant

have traditionally been viewed

with special suspicion. Due to

his strong motivation to

implicate the defendant and to

exonerate himself, a co-

defendant’s statements about

what the defendant said or did

are less credible than ordinary

hearsay evidence."

(Quoting Bruton v. United States, supra,

391 U.S. at 141 (White, J., dissenting) ).

Because of the strong presumption of

18

unreliability attached to statements of

an accomplice which inculpate the

defendant, this Court has held repeatedly

that when the statement of a non-

testifying accomplice is introduced at

trial and the defendant cannot cross-

examine the accomplice, the introduction

of the statement violates the Sixth

Amendment. Douglas _v. Alabama, supra;

Bruton v. United States, supra, Lee v.

Illinois, supra; Cruz v. New York, 107 S.

Ct. 1714 (1987). In Bruton, this Court

held that a confession which incriminates

an accomplice is so “inevitably suspect"

and "devastating" that even explicit

instructions from the judge limiting the

use of the confession as evidence solely

against the co-defendant were

insufficient to protect the Sixth

Amendment rights of the Defendant. 391

U.S. at 136. The Bruton rule remains

19

viable today.

The facts of this case put it

squarely within the holding of Bruton and

its progeny. The alleged accomplice of

the defendant did not testify at trial

because of his death. The prosecution

introduced a statement inculpating the

defendant which was made to police by the

alleged accomplice after his arrest.

Under the established ruling in Bruton,

this statement was inherently suspect and

unreliable hearsay, and on this basis

alone its admission against the defendant

was error. Moreover, the alleged

accomplice’s statement was factually

undermined by other evidence in the case,

including a letter from a co-defendant

indicating that the alleged accompl* se

had fabricated the part of his story

relating to the defendant’s involvement

in the criminal activity. The lack of

20

credibility and unreliability of the

alleged accomplice’s out-of-court

statement is further demonstrated by the

fact that the statement was given only

after he had been promised a cap on his

sentence in exchange for fingering

others. In such a situation, the alleged

accomplice had no reason or motivation to

speak accurately about the defendant.

Thus, the admission of the statement was

Clearly prejudicial to the defendant as a

violation of his Sixth Amendment right to

confront and cross-examine witnesses. In

light of the lack of evidence against the

defendant aside from the alleged

accomplice’s statement, this court must

reverse the defendant’s conviction. ‘See

Close v. United States, 450 F.2d 152 (4th

Cir. 1971), cert. denied, 404 U.S. 1068

(1972) (where circumstantial evidence

gave basis for charge of interstate

21

transportation of stolen property when

coupled with evidence as to confessions

of defendant’s co-defendant, and there

was no direct evidence of defendant’s

involvement except for those confessions,

admission of evidence of oral confessions

of nontestifying co-defendants was

reversible error).

The Court of Appeals, ae. -48

contended, improperly relied upon

Bourjaily v. United States, 107 S.Ct.

2775 (1987).

It is plain, however, that Bourjaily

in no way affects the outcome of this

case, for it ‘has’ no relevance to

situations in which a post-arrest

confession of a co-defendant or

accomplice is admitted against a

defendant.

First, this Court’s holding in Cruz

v. New York, supra, in the same term and

22

two months prior to Bourjaily is

conclusive evidence that the Court had no

intention of affecting the line of cases

under Bruton in Bourjaily. In fact, in

Cruz the entire Court adhered to the

basic rationale and holding in Bruton,

for even the dissenters recognized the

vitality of Bruton and indicated a

preference for the views in Parker v.

Randolph, supra, which itself followed

Bruton. It is simply impossible to view

Bourjaily as an indication that the Court

has abandoned the rule that an

accomplice’s out-of-court statement which

inculpates a defendant is so unreliable,

suspect, and devastating as to be

inadmissible against the defendant.

Second, the theoretical

underpinnings of the Bourjaily decision

are entirely separate from those of the

Bruton line of cases. In Bourjaily, the

23

Court rested its holding on the fact that

because co-conspirators’ statements made

in furtherance of a conspiracy have long

been recognized as being reliable, no

independent inquiry into reliability is

necessary. It expressly contrasted the

Situation in Dutton v. Evans, 400 U.S. 74

(1970), in which the Court held that a

reliability inquiry was required in

situations were co-conspirators’

statements were made after the

termination of the conspiracy. 107 Ss.

Ct. at 2783. Obviously, in light of the

long line of decisions from the Court

recognizing the unreliability of an

accomplice’s statement inculpating a

defendant, the Court's analysis in

Bour jaily could not possibly be

applicable to the present case.

In addition to the constitutional

error committed by the trial court, it

24

also erred by admitting the confession of

the accomplice in violation of Fed R.

Evid., 804 (b)(3). Rule 804 (b)(3)

permits, as one exception to the hearsay

exclusion, the introduction of "[a]

statement which . . . so far tended to

subject him _ to civil or criminal

liability . . . that a reasonable man in

his position would not have made the

statement unless he believed it to be

true." In other words, an out-of-court

statement is considered sufficiently

reliable for purposes of the Rules of

Evidence if the statement was made

against the _ penal interest of the

declarant.

In interpreting this provision,

courts have clearly indicated that a

factual inquiry into the circumstances of

the statement must be made in order to

determine if, at the time *of the

25

statement, the declarant was truly action

against penal interest. See, e.gd.,

United States v. Oliver, 626 F.2d 254 (2d

Cir. 1980); Rado v. State of Connecticut,

607 F.2d 572 (24 Cir. 1979), aark.

Genied, 447 U.S. 920 (1980); United

States v. Bailey, 581 F.2d 341 (3d Cir.

1978); United States v. Gonzalez, 559

P.284 i271 (Sth Cis. 1977}. Thus, if

while inculpating himself to some degree

the defendant also was making a statement

to improve his position with regard to

possible prosecution against him, his

statements are not necessarily against

penal interest. Id. As stated in the

Advisory Committee Note to Fed. R. Evid.

804, "a statement admitting guilt and

implicating another person, made while in

custody, may well be motivated by a

desire to curry favor with the

authorities and hence fail to qualify as

26

against interest."

Under this rule, it has therefore

been held that a statement made after the

prosecution had offered an accomplice a

plea bargain, involving dismissal of one

of several counts, was not made against

penal interest. United States v. Bailey,

Supra; see also United States __v.

Gonzalez, supra (statement by accomplice

who had been immunized was not statement

against penal interest); Hendrix v.

Smith, 639 F.2d 113 (2d Cir. 1981)

(statement of unindicted co-conspirator

not against penal interest). Even where

no explicit inducements or promises were

made, inculpatory statements given by a

person in custody which implicate others

may not be against penal interest within

Rule 804 (b)(3). As noted in United

States v. Oliver, supra, a person’s

statement may be motivated in part by the

27

prospect of severe punishment for his

crime if he did not cooperate and the

desire to gain favor with the government

in the hope of obtaining release or

reduced punishment. Under such

circumstances it could not be said with

certainty that a reasonable man would not

make a statement unless he believed it to

be true.

In short, because of the

circumstances, the alleged accomplice’s

out-of-court statement implicating the

defendant was untrustworthy and

unreliable. It thus failed to meet the

constitutional requirement for

admissibility under the Sixth Amendment,

and should have been excluded on that

basis. As stated by the Supreme Court in

Ohio v. Roberts, 448 U.S. 56, 66 (1980),

where reliability cannot be inferred the

evidence must > be excluded "absent a

28

showing of particularized guarantees of

trustworthiness." Such guarantees cannot

be made in this case, for the statement

could not even satisfy the requirement of

Fed. R. Evid. 804 (b)(3) that a statement

against penal interest be shown. Thus,

there was no basis to support’ the

admission of the evidence.

II. THE COURT OF APPEALS MADE ERRONEOUS

FINDINGS IN DETERMINING THAT THE EVIDENCE

OFFERED BY THE GOVERNMENT WAS SUFFICIENT

TO SUSTAIN THE CONVICTIONS OF THE

PETITIONERS.

The evidence offered by the

Government was insufficient to sustain

the convictions of the Petitioners.

With regard to the charges against

Jeffrey Workman as contained in SH-CR-87-

57 and the charges contained in SH-CR-87-

7 against Perlie Workman, the

introduction of the testimony of the

deceased co-defendant constituted the

only direct evidence in which’ the

29

Petitioners were named as participants or

conspirators in the alleged crimes and

therefore, due to the inadmissibility of

the evidence, the Government had

insufficient evidence to _ sustain the

convictions as to said counts of the

Indictments. It is respectfully argued

that by reason of the lack of sufficient

evidence to support a conviction, the

motions made by Defendants’ counsel for

judgment of acquittal should have been

allowed as to those counts.

With regard to the charge of

intimidating or threatening a witness as

contained in Count 2 of the Indictment

contained in docket number SH-CR-878-69,

the evidence was insufficient to convict

the Defendant under 18 U.S.C. 1512

f(a)(l). The ambiguous nature of the

statements made by the Defendant and

Davis in their conversation, which forms

30

AD TE TAS SAE SOMO MT nw

EPERE AAR EID 718

the basis of the Defendants’ convictions,

where intimidating a witness makes it

impossible as a matter of law to conclude

that the Defendant, in fact, had the

intent to intimidate or threaten the

deceased co-defendant. The cases which

interpret Title 18 United States Code,

Section 1512 (a)(1) set forth, and before

a defendant may convicted under that

Statute, the statement in question must

truly be determined to be threats as

noted by the Court in U.S. vs. Wilson,

565 F.supp 1416, 1431 (SD.NY 1983), to

support a conviction under Section 1512,

a statement must

"be construed as being

sufficiently clear as to convey

a gravity of purpose and

imminent prospect of execution"

[Quoting U.S. v. Kehner, 534 F.2d 1020,

1027 (2nd Cir.), cert. denied, 419 U.S.

1022 (1976) ]

Thus, the Courts have held that a

31

non-threatening attempt to have a witness

give false information is not witness

tampering as defined pursuant to Section

4642 {n}{i}. In Kehner the Court held

that although the facts demonstrated

conclusively that the Defendant tried to

persuade a witness to lie to mislead the

Government, the facts failed to show any

intimidation of the witness and

accordingly, the Court reversed the

Defendant’s conviction.

Similarly, in the present case, the

ambiguous facts make it unclear whether

the Petitioner was threatening Davis,

merely trying to persuade hin, or even

whether any attempt was being made to

obstruct justice. To convict on these

facts, the jury must have relied more

upon speculation than on the evidence,

which mandates reversal in ‘the

Petitioner’s conviction. A conviction

32

based on evidence that requires

speculation or mere conjecture by the

jury is invalid. U.S. vs. Brown, 763

F.2d 987 (8th Cir. 1985), cert. denied,

106 Sup. Ct. 273 (1986); U.S. vs. Carter,

$22 F.2€ 606 (D.C. Cir. 1975) (A

conviction cannot stand unless’~ each

element of the offense is supported by

sufficient evidence and speculation may

not serve as an inadequate factual

predicate).

Additionally with regard to the

alleged violation by Perlie Donald

Workman of Section 1512 (a)(1), the

actions on the part of Davis and Special

Agent Turner were very analogous to the

factual setting set forth in Messiah v.

United States, 377 U.S. 201 (1964). In

the instant case as in seston the

Defendant was free on bond and had a

conversation in the absence of his

33

counsel with one of his co-defendants,

which was overheard by the agent involved

via a radio transmitter; the

conversations amounting to incriminating

statements on the part of the Defendant.

It is obvious from the evidence in the

present case that the only evidence

against the Petitioner concerning the

violations alleged are from the

statements made to the now deceased co-

defendant. It is respectfully argued

that under the situation as it appears in

the present case, the obtaining of the

statements violated the Fourth, Fifth,

and Sixth Amendments of the Petitioner,

and further violated the standards as set

forth in Messiah.

In the instant case it is

respectfully argued that the Defendant’s

own incriminating statements, obtained by

a Federal Agent through a co-defendant

34

may not be constitutionally used by the

prosecution as evidence against the

Defendant at his trial.

It is further respectfully argued

that the unavailability of Davis to

testify concerning the sequence’ the

events surrounding the meeting with the

Petitioner or allow cross-examination to

determine the impressions, feelings, or

mental state of the deceased witness to

determine whether or not a violation of

18 U.S.C. Section 1512(b)(1) had taken

place Clearly violated the Sixth

Amendment rights of the Petitioner.

CONCLUSION

The Petitioners, for the reasons as

set forth hereinabove, respectfully pray

this Court to grant this petition for a

writ of certiorari for determination by

this Court of the issues as set forth

herein. The Petitioners respectfully

35

argue that unless the petition is

granted, the petitioners have no other

course of redress for the protection of

their constitutional rights. It is

further respectfully argued that’ the

Court of Appeals obviously ignored this

Court’s decisions in Lee v. Illinois, 106

S. Ct. 2056 (1986) and Bruton v. United

States, 391 U.S. 123, (1968), in making

the erroneous findings in which they

determine that the introduction of the

statement of deceased witness was not a.

violation of the Sixth Amendment rights

of the petitioners to confront and cross-

examine a witness, but rather was an

admissible statement under ae firmly

established hearsay exception. For these

various reasons, this petition for

certiorari should be granted.

36

Respectfully submitted,

i oy

Cc. Gary Triggs F

Attorney for the Petitioners

P.O. Drawer 579

Morganton, NC 28655

(704) 433-0872

*Douglas F. Powell

Attorney for the Petitioners

216 East Concord Street

Morganton, NC 28655

(704) 437-4664

*Counsel of Record

a7

CERTIFICATE OF SERVICE

In accordance with Rule 25 of the

Rules of the U.S. Court of Appeals Fourth

Circuit, I hereby certify that I have

this 27th day of December, 1988, filed

the required copies of the Petition for

Writ of Certiorari in the Clerk’s Office,

and have mailed the required copies of

the Petitioners’ Writ to:

Thomas J. Ashcraft

U.S. Attorney for the Western

District of North Carolina

Charles R. Jonas Federal Building

Room 260

401 West Trade Street

Charlotte, NC 28202

Jerry W. Miller

Assistant U.S. Attorney

Office of the U.S. Attorney

United States Courthouse

100 Otis Street, Room 306

Asheville, North Carolina 28801-2611

Thomas Ernest Booth

Staff Attorney

Department of Justice

P.O. Box 899

Ben Franklin Station

Washington, DC 20044

Solicitor General

Department of Justice

Washington, D.C. 20530

38

CB iy —

C. Gary Tri

Attorney for the ae 4 ioners

P.O. Drawer 579

Morganton, North Carolina 28655

(704) 433-0872

*Douglas F. Powell

Attorney for the Petitioners

216 East Concord Street

Morganton, NC 28655

(704) 437-4664

*Counsel of Record

39

NO. 88-

UNITED STATES SUPREME COURT

October Term 1988

PERLIE DONALD WORKMAN

and JEFFREY WORKMAN,

Petitioners,

Vv.

UNITED STATES OF

AMERICA,

Respondent.

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

Appeal from the United States District

Court for the Western District of North

Carolina, at Shelby. Woodrow Wilson

Jones, District Judge. (CR-87-7).

Argued: May 6, 1988

Decided: October 26, 1988

Before CHAPMAN and WILKINSON, Circuit

Judges, and GORDON, Senior District Judge

for the Middle District of North

Carolina, sitting by designation.

C. Gary Triggs (C. GARY TRIGGS, P.A. on

brief) for Appellants. Thomas E. Booth

( DEPARTMENT OF JUSTICE; Thomas J.

Ashcraft, United States Attorney; Jerry

Miller, Assistant U. S. Attorney on

brief) for Appellee.

CHAPMAN, Circuit Judge:

Perlie D. Workman was convicted of

possession of goods and chattels which

were stolen and which had been part of an

interstate shipment in violation of 18

U.S.C. 659. Jeffrey Workman was

convicted of aiding and abetting in said

possession in violation of 18 U.S.C. 659

and 2. Perlie D. Workman was also

convicted of intimidating and threatening

a witness in violation of 18 U.S.C.

1512(b)(1). Both appellants challenge

their convictions claiming that’ the

introduction into evidence of the

previously recorded statement of Terry

Davis violated their Sixth Amendment

right to confrontation of this witness,

and also violated the Federal Rules of

Evidence. Without the Davis statement,

which had been voluntarily given to FBI

Agent John Turner and recorded by Davis’

Al

attorney Joe Byrd, the evidence

supporting the possession count and the

aiding and abetting count would not. be

sufficient to convict. However, the

exclusions of this evidence would not

alter the sufficiency of the evidence on

the intimidating and threatening a

witness count.

After a complete review of the

evidence and the law, we agree with the

trial judge that the out-of-court

statement of Terry Davis was admissible,

because it fell within a firmly rooted

hearsay exception, and we affirm.

I

In July 1986, Ronald Wilson, a

professional truck driver, received a

shipment of 1,068 cases of liquor for

delivery to a company in Texas. At the

time, Wilson was in debt, and he decided

to steal the shipment and sell it for

A2

cash. Wilson, who was in Kentucky,

called his cousin, Terry Davis, in North

Carolina and told him about the load and

asked Davis to find a buyer for the

liquor. Telephone records introduced

into evidence showed that between 8:00

p.m. on July 25, 1986, the date of

Wilson’s first call to Davis, and 6:30

p.m. on July 26, 1986, six telephone

calls were placed from the Davis

residence to the appellants’ residence.

Wilson drove to Knoxville,

Tennessee, and again called Davis, who

advised him to bring the load to a Rama

Inn in Icard, North Carolina. After

checking into the motel, Wilson

accompanied Davis to the appellants’

home, and Davis advised Jeffrey Workman

that they had a shipment of liquor for

sale. Jeffrey stated that he would

contact them after Perlie Workman

A3

returned home. Davis and Wilson drove to

a convenience store and unsuccessfully

attempted to sell the _ load. Davis

returned to the Workman residence and

offered to sell the load to Perlie

Workman, who responded that he did not

want the liquor but he would contact

someone who might be interested.

Telephone records introduced into

evidence showed that on July 26 and 27

three telephone calls were placed from

the Workman residence to numbers listed

to James Norman in South Carolina. Two

months later, 422 cases of the stolen

liquor were found on Norman’s’ South

Carolina farm.

Later on July 26, Jeffrey Workman

advised Davis that Jeffrey and Perlie

Workman would buy the liquor for $7,000

and instructed Davis to deliver but not

to bring Wilson at the time of delivery.

A4

Davis then drove to the Rama Inn and

advised Wilson of the offer, and Wilson

directed Davis to telephone Perlie

Workman and confirm the price. This was

done, and that evening Davis drove the

truckload of liquor to Workman’s home and

was paid $7,000 by Perlie Workman.

Jeffrey and Perlie Workman, together with

Davis and two others, unloaded the liquor

from the truck and placed it in a nearby

building. Davis then met Wilson at the

convenience store and delivered the

$7,000 to him. Wilson paid Davis $500

for arranging the sale.

In January 1987, a grand jury

returned a three count indictment against

Perlie Workman, Terry Davis and Ronald

Wilson for the theft and sale of the

interstate shipment of liquor. In April

1987, Perlie Workman gave $3,000 in cash

to Terry Davis’ father and requested that

A5

he give the money to Terry. he gave no

explanation for his delivery of the

money, and France Davis, Terry’s father,

assumed that the money was to pay for a

trailer that Terry had been trying to

sell to Perlie Workman. When France

delivered the money to his son, he was

informed that the trailer had already

been sold. France Davis held the money

until several days later when Perlie

Workman came to the Davis residence and

stated to France that he wanted to talk

to Terry even though he knew that he

should not be talking to him. At that

time, France Davis returned the $3,000 to

Perlie Workman.

After his indictment in January

1987, Terry Davis retained Attorney Joe

Byrd to represent him on the criminal

indictment that had been returned by the

grand jury. In April 1987, Davis agreed

A6

to plead guilty to one count of the

indictment and cooperate with the

government in the trial against the other

defendants.

On May 12, 1987, Terry Davis, his

attorney, Joe Byrd, and FBI Agent Turner

met, and Davis gave a statement in which

he confessed his role in the sale of the

stolen liquor. He explained that Wilson

had called and advised him that he wanted

to sell the load of stolen liquor, and

Davis explained the nek bones taken by

Perlie Workman, Jeffrey Workman, Ronald

Wilson, and himself in the sale and

delivery of the stolen goods. Agent

Turner had previously interviewed Ronald

Wilson, who had confessed to stealing the

load and calling Davis to assist him in

selling it.

Attorney Byrd had a tape recorder at

the meeting with Agent Turner, and the

A7

questions of the agent and the answers of

Davis were duly recorded on tape. This

tape was kept by the attorney until

shortly before the trial of the

appellants, and it was then turned over

to Agent Turner. This taped statement

was introduced into evidence at the

trial. The tape was identified by both

Attorney Byrd and Agent Turner, who both

testified to the circumstances

surrounding the taking and recording of

the statement.

On June 10, Perlie Workman asked

Davis to meet him at the convenience

store. Davis contacted Agent Turner, and

Turner fitted him with equipment that

would record his conversation with Perlie

Workman and would also transmit the

conversation to Agent Turner ’s

automobile, which would be parked nearby.

At this meeting in Workman’s automobile,

A&

Davis advised Perlie that Jeffrey Workman

would probably be indicted, and that he

(Davis) would have to tell the truth.

Davis stated that he was scared, and the

following conversation ensued:

Perlie: "scared, hell, scared

of what? yYou’re in fact...you

know what you are going to get?

I’m gonna show you what you

gonna get."

Davis: (shouts) "no you don’t

Perl."

Davis: (as he exited from

Perlie’s car): "Oh Lord!

(pause) I’ve got to leave

here."

Perlie: "Terry, you better get

here."

As Davis got out of Perlie Workman’s

car and fled the scene, FBI Agent Turner,

who had been watching and listening to

the meeting, arrested Perlie Workman, who

was thereafter indicted for attempting to

bribe Davis and for threatening Davis.

Two weeks prior to the trial, Terry

Davis died of hepatitis, and shortly

A9

thereafter the United States Attorney

filed notice, pursuant to Federal Rules

of Evidence 803(24), 804(b)(5), 803(5)

and 804(b)(3), of his intention to use

the recorded statements of Terry Davis as

evidence at the trial. The statements

were admitted into evidence, and Perlie

Workman was convicted of possession of

goods and chattels which had been stolen

from an interstate shipment. Jeffrey

Workman was convicted of aiding and

abetting in this offense. Perlie Workman

was acquitted on the bribery count, and

he was convicted of intimidating and

threatening a witness, Terry Davis.

II

Appellants claim that the admission

of the tape of Terry Davis’ statement to

Agent Joe Turner violated their Sixth

Amendment right to be confronted by the

.

witnesses against them, and that they

Al10

were denied the right of cross-

examination, and that the use of such

statement violated Bruton v. United

States, 391 «60S. 123 (1968). The

government claims that the Davis

statement was admissible under a firmly

established hearsay exception, Federal

Rule of Evidence 804(b)(5)1, and

therefore it did not violate either the

Sixth Amendment or Bruton principle.

Bruton prevents the introduction of

a co-defendant’s confession, which

~ Federal Rule of Evidence 8:04(b)

Hearsay exceptions. The following are

not excluded by the hearsay rule if the

declarant is unavailable as a witness:

(5) Other exceptions. A statement

not specifically covered by any of the

foregoing exceptions but having

equivalent circumstantial guarantees of

trustworthiness, if the court determines

that (A) the statement is offered as

evidence of a material fact; (B) the

statement is more probative on the point

for which it is offered than any other

evidence which the proponent can procure

through reasonable efforts: and (C) the

general purposes of these rules and the

All

incriminates the defendant, at a joint

trial when the co-defendant does not take

the witness stand so that he may be

cross-examined. This was a logical step

following Pointer v. Texas, 380 U.S. 400

(1965), which held that the Sixth

Amendment right of a criminal defendant

to be confronted by the witnesses against

him included the right to cross-examine

the witnesses.

We are not faced with a Bruton

issue. This case presents a hearsay

question. Davis died before trial, and

at the time of trial, he was not a co-

1 (Cont.) interest of justice will best,

be served by admission of the statement

into evidence. However, a statement may

not be admitted under this exception

unless the proponent of it makes known to

the adverse party sufficiently in advance

of the trial or hearing to provide the

adverse party with a fair opportunity to

prepare to meet it, the proponent’s

intention to offer the statement and the

particulars of it, including the name and

the address of the declarant.

Al2

defendant of Perlie and Jeffrey Workman.

The Court made clear in Bruton that a

Sixth Amendment problem was created by

the fact’ that, while the hearsay

statement was inadmissible as to Bruton,

it was admissible against his co-

defendant, the declarant, who confessed

his involvement and Bruton’s involvement

in the crime. The Bruton Court noted:

There is not before us,

therefore, any recognized

exception to the hearsay rule

insofar as petitioner is

concerned and we intimate no view

whatever that such exceptions necessarily

raise questions under the Confrontation

Clause.

391 U.S. at 128, n. 3.

When Ohio v. Roberts, 448 U.S. 56

(1979), was decided, the Court

conditioned the use of out-of-court

statements upon ae showing of the

unavailability of the declarant and the

Al13

adequate "indicia of reliability" of the

statement, and concluded:

Reliability can be inferred

without more in a case where

the evidence falls within a

firmly rooted hearsay

exception.

Id. at 66.

Recently, in Bourjaily v. United

States, 55 U.S.L.W. 4962 (1987), the

Court held that since the hearsay rules

and the Confrontation Clause are designed

to protect similar values, there is no

need for an independent inquiry into

reliability, if the evidence falls into a

firmly rooted hearsay exception.

However, this involved Evidence Rule

801(d)(2)(E), which covers the statement

made by a co-conspirator of a party

during the course and in furtherance of

the conspiracy. We are faced with

Evidence Rule 804(b)(5) which requires

that there be "equivalent circumstantial

Al4

guarantees of trustworthiness," but this

is just another way of expressing the

need for "adequate indicia of

reliability" or "independent inquiry into

reliability."

The finding of the trial judge on

the guarantees of trustworthiness are

subject to the clearly erroneous standard

of review, United States v. Smith, 792

F.2d 441, 443-444 (4th Cir. 1986), cert.

denied, 107 S. Ct. 892 (1987), and this

finding by the trial judge is not clearly

erroneous. The statement was given

voluntarily by Terry Davis to FBI Agent

Turner. Attorney Joe Byrd represented

Davis, and he was present during the

entire time of the questioning of Davis

by the agent. The tape recording was

made by Attorney Byrd, at his insistence,

and it was kept by him until Davis became

critically ill.

A15

There is no question as to the

identity of the voices on the tape. They

are the voices of the deceased Terry

Davis and Agent Turner. The questions

and answers, as read to the jury, were

reacted to remove those to which

objections had “been made and sustained.

Both Agent Turner and Attorney Byrd

testified to the circumstances

surrounding the giving and recording of

the statement.

The actions of Davis, after making

the statement, are circumstances that

tend to guarantee its trustworthiness.

His agreement to meet with Perlie Workman

and to wear a tape recorder to the

meeting tend to guarantee

trustworthiness, because it demonstrated

his conviction that his statement was

true, and that a recorded meeting with

Perlie Workman would support, and not

A16

contradict, his statement.

In United States v. West, 574 F.2d

1131 (4th Cir. 1978), we held that under

Federal Rule of Evidence 804 (b)(5) it

was not necessary to determine if the

circumstantial guarantees of

trustworthiness are equivalent to those

safeguards which arise from direct and

cross-examination, and that the

requirement of equivalent guarantees of

trustworthiness was met "if there is

equivalency of any one of the preceding

804(b) exceptions." Id. at 1136. The

statement of Davis to FBI Agent Turner

qualifies as a statement against interest

under Rule 804(b)(3). This Rule

provides:

(3) Statement against interest.

A statement which was, at the

time of its making, so far

contrary to the declarant’s

pecuniary or proprietary

interest, or so far tended to

subject the declarant to civil

or criminal liability, or to

Al7

render invalid a claim by ‘the

declarant against another, that

a reasonable person in the

declarant’s position would not

have made the statement unless

believing it to be true. A

statement tending to | expose

declarant to criminal liability

and offered to exculpate the

accused is not admissible

unless corroborating

circumstances clearly indicate

the trustworthiness of the

statement.

The statement by Davis subjected him

to criminal liability under the first

sentence of the rule. It did not

exculpate an accused, so it is not

subject to the second sentence of the

rule.

In West we also held that’ the

cooperation of a witness with the police

to the extent of meeting with suspects

and allowing the meeting to be observed

and the conversation recorded lends a

high degree of trustworthiness to the

statement. We observed:

Moreover, the jury listened to

Al8

REP GU RNR EIRP NEIN ITI

Wi SE BRR ARE eal aM

the tapes as well as_ the

written statements, and the

agents at the trial were

subject to cross-examination

about their testimony

concerning what they did and

what they observed. All of

this lends a high degree of

reliability and trustworthiness

to Brown’s testimony before the

grand jury. It furnished the

jury a firm basis for judging

the truthfulness of what Brown

said before the grand jury.

It should not be _ surprising

that the same circumstances

suffice to meet the

requirements of 804(b)(5) and

of the Confrontation Clause.

This is true of other

exceptions to the hearsay rule

which do not contravene the

Confrontation Clause. The

dying declaration and the

declaration against penal

interest have indicia

reliability which warrant their

admission as exceptions to the

hearsay rule while at the same

time warranting the admission

under the Confrontation Clause.

574 F.2d at 1138.

The Davis statement also met the

other mandates of Rule 805(b)(5) which

require the trial court to determine that

(A) the statement is offered as evidence

Al9

of a material fact, (B) the statement is

more probative on the point for which it

is offered than any other evidence which

the proponent can procure through

reasonable efforts; and (C) the general

purposes of these rule and the interests

of justice will best be served by

admission of the statement into evidence.

Fed R. Evid. 804(b)(5).

The Davis statement was offered as

evidence of a material fact. The

statement was of a Sektioioant in the

bringing together of Ronald Wilson, who

wished to sell a truckload of stolen

liquor, and the appellants, who agreed to;

and did buy it. Davis was the only

eyewitness who could explain the entire —

transaction from its beginning (when he

received the first telephone call from

Wilson) until its end (when he picked up

the $7,000 frem Perlie Workman and

A20

delivered it to Wilson). The statement

was offered as evidence of material

facts, because it tended to prove certain

essential elements of the crimes charged.

The statement was more probative on

the point for which it was offered than

any other evidence which the government

could procure through reasonable efforts.

Actually, it was the only evidence that

could be procured to prove the extent of

the appellants’ involvement in the crime.

Davis was the only person who could tell

the entire story and connect all of the

parties. Wilson testified, but his

testimony could not cover the

negotiations Davis had with the

appellants, or the delivery and the

unloading of the truck, or the payment of

the $7,000 by Perlie Workman to Davis for

delivery to Wilson. As we stated in

United States v. Welsh, 774 F2d 670, 672

A21

(4th Cir. 1985):

For evidence to be admissible

under 804(b)(5), it must be

more probative on the point for

which it is offered than any

other evidence which the

proponent can produce through

reasonable efforts. Fed. R.

Evid. 804(b)(5)(B). The

probative value of evidence is

its ‘tendency...to establish

the proposition that it is

offered to prove.’ McCormick

on Evidence, 3rd Ed., 185, at

541. Evidence has probative

value if it tends to prove the

issue in dispute. United

States _v. Ball, 547 F. Supp.

929 (E.D. Tenn. 1981).

The statement of Davis was "more

probative" because it was the only

evidence available to prove many of the

essential elements of the crimes charged.

The admission of the Davis statement

was also in keeping with the general

purposes of the evidence rules, and the

interests of justice were best served by

its admission. Without this statement

the government could not have proved its

case. The death of a most material

A22

witness should not abort a prosecution

when a statement by the deceased witness

may be admitted under a firmly rooted

exception to the hearsay rule. The Rules

of Evidence clearly express a preference

for live testimony given in person from

the witness stand, but hearsay, if of a

specific quality, is better than a

complete loss of the evidence of the

declarant. The Davis statement is of the

quality specified and was’ properly

admitted. |

III

We find no merit to the appellants

contention that the evidence was

insufficient to prove their guilt beyond

a reasonable doubt. The primary evidence

against the appellants was the Davis

statement, but it was corroborated and

enforced by the various telephone records

showing six telephone calls from the

A23

Davis residence to the _ appellants’

residence during the twenty-four hours

following the initial call from Wilson to

Davis asking for help in selling the

liquor, and the telephone calls from the

appellants’ residence to Norman in South

Carolina, and the finding of a large

quantity of the whiskey on Norman’s farn.

There was also the testimony of Wilson

that he saw his truck parked across the

road from appellants’ house. ) The

evidence of Perlie Workman’s threats and

intimidation of Davis and his delivery of

$3,000 to Davis’ father could also be

considered by the jury in deciding that

Perlie Workman was guilty. There was

ample evidence to support the aiding and

abetting conviction of Jeffrey Workman.

IV

The evidence was sufficient to

convict Perlie Workman of threatening a

A24

witness in violation of 18 U.S.C.

1512(b)(1), which provides:

Whoever knowingly uses

intimidation or physical force,

or threatens amother person, or

attempts to do so, or engages

in misleading conduct toward

another person, with intent to

(1) influence, delay, or

prevent the testimony of -any

person in an official

proceeding shall be fined not

more than $250,000 or

imprisoned not more than ten

years, or both.

Perlie Workman’s statement that he

was going "to show you what you gonna

get", which was made after Davis had

informed him that Jeffrey Workman was

probably going to be indicted and that

Davis would have to testify truthfully,

constituted a threat within the meaning

of the statute. In United States v.

Capo, 791 F.2d 1054, 1070 (2d Cir. 1986),

the Court stated:

The evidence was ample _ to

support the jury’s verdict

finding Capo guilty of having

attempted to intimidate

A25

Gauthier in an effort to

prevent his testifying in the

grand jury proceeding. Capo’s

statements to Gauthier, made in

response to Gauthier’s

informing Capo in February 1983

that he intended to testify

before the grand jury,

including Capo’s’' gratuitous

disclaimer that he was a member

of the ‘mob’, and his dropping

the name of the brother of a

known organized crime figure in

“connection with his advice that

if everyone kept silent there

would be no problen. Capo’s

intention that his statements,

including his references to

organized crime, were too

ambiguous to be construed as

threats was an argument more

properly addressed to the jury.

The jury was free to reject it,

as it apparently did.

In United States v. Greybear, 828

P.24 12806, i297 {803 . Car... .1667},. 6

statement that the defendant "told us not

to say anything, we’d get the same thing"

was found to be a sufficient threat and

intimidation of a witness under the

witness intimidation statute. The

statement of Perlie Workman to Davis that

"you know what you’re gonna get? I’m

A26

gemna show you what you gonna get" was

sufficient, when considered with all of

the other circumstances surrounding the

meeting of Davis and Perlie Workman, to

establish an intimidation or threat to

influence or prevent testimony in an

official proceeding.

June 18th

"Keith"

Whats up man. Remember when I was here

last and what I told you about my case.

Terry’s tryin to put the blame on Perl

Workman. You remember when I told you

about this guy from S.C. and that Terry

sold the load to hin. Now he’s been

indicted and I think he will be in court

also. Hell now Terry is pleading guilty

for a plea bargin and Terry came to

Rutherford a copy cf times to try to get

me to say that I knowed Workman. And

that he bought the stuff. And he’s

saying that Workman bought it. But you

and I know who bought the stuff. Hell

I’m not going to lie just to help Terry’s

ass. I don’t know whats up, but I do

know that some guy in S.C. bought it.

When are you getting out and have you

been tried. Write back.

Ron

A28

na

PLP GE LOLI I LE EOE Ty