Appendix — Everett C. McKethan v. United States

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APPENDIX A FILED

Mar 30, 1978

William K. Slate I

CLERK

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1222

United States of America,

Appellee,

versus

Earl A. Garner,

Appellant.

No. 77-1224

United States of America,

Appellee,

versus

Everett C. McKethan,

Appellant.

ORDER

Upon consideration of the petition for rehearing,

The opinions are revised, substituting new pages 11

and 1 la, attached hereto, for old page 11, by substituting

pages 15 and 15a, attached hereto, for old page 15, and

by substituting a revised dissenting opinion by Judge

Widener, attached hereto, for the old dissenting opinion.

With the concurrence of Judge Hall, Judge Widener has

revised his dissent to indicate his concurrence with Parts

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III and IV of the revised opinion, but he would grant re-

hearing for the reason stated in his dissenting opinion.

/s/ Clement F. Haynsworth, Jr.

Chief Judge, Fourth Circuit

March 24, 1978

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1222

United States of America,

Appellee,

versus

Earl A. Garner,

Appellant.

No. 77-1224

United States of America,

Appellee,

versus

Everett C. McKethan,

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia, at Alexandria. J. Calvitt

Clarke, Jr., District Judge. \

Argued June 10, 1977 Decided February 17, 1978.

REVISED OPINION

Before HAYNSWORTH, Chief Judge,

WIDENER and HALL, Circuit Judges

Michael McGettigan (George F. West, Jr., Murphy,

McGettigan, McNally & West on brief) Leonard S. Ruben-

> oo oe

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stein (Philip J. Hirschkop, Philip Hirschkop & Associates,

Ltd. on brief) for Appellants; James R. Hubbard, Assis-

tant United States Attorney (William B. Cummings,

United States Attorney, Justin W. Williams, Assistant

United States Attorney, Leonie Milhomme Brinkema,

Special Assistant United States Attorney on brief) for

Appellee.

HAYNSWORTH, Chief Judge:

Convicted of drug related offenses arising out of the

alleged importation of substantial quantities of heroin

from West Germany and Holland, the defendants com-

plain primarily of the admission in evidence of the grand

jury testimony of an alleged co-conspirator who declined

to testify at the trial despite the best efforts of the trial

judge and his own lawyer to get him to do so,

Warren Robinson, the grand jury witness, had been

indicted for offenses committed by him in connection

with the importation of the heroin. He had previously

commenced serving a six year sentence imposed upon

him for unrelated offenses, and he was under indictment

in New York for still other unrelated offenses. Faced

with the possibility that very heavy penalties might be

imposed upon him if convicted under this indictment, he

entered into a plea agreement. The agreement was that he

would enter a plea of guilty to a two-count information,

would testify fully before a grand jury and in any ensuing

criminal proceedings, in exchange for which the govern-

ment would dismiss the indictment. There was no agree-

ment respecting the disposition of the New York charges.

Robinson entered his guilty pleas to the two counts in

the information, and was sentenced to two successive five

year terms to commence upon completion of his earlier

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six year sentence. He then appeared as a seemingly willing

witness before a grand jury.

He toid the grand jury that Garner had approached

him with information that McKethan, an airline em-

ployee, had a source for large quantities of heroin in West

Germany. Garner sought to enlist Robinson’s participa-

tion in the importation of heroin from western Europe

and its distribution in the metropolitan Washington area.

There followed a number of trips to West Germany

and to Holland, where another source of supply had been

developed with the assistance of their first contact.

Robinson did not get his passport in time to make Gar-

ner’s first trip, but he and Garner traveled together on

two later ones, and he was told by the defendants of still

later trips that they took. On one of the trips Garner and

Robinson were accompanied by two young women who,

traveling separately on the return trip, brought the heroin

into the United States concealed in their girdles.

Before Garner and McKethan were brought to trial,

Robinson indicated reluctance to testify at trial. This

oceasioned inquiry of him in an in camera proceeding

before the trial opened. He then stated that in the

absence of his lawyer he would not testify. His lawyer

was summoned and advised him to testify, but to no

avail. After the trial opened, though the court had grant-

ed him use immunity and threatened him with a con-

tempt citation if he refused, he persisted in his refusal to

testify. In another in camera proceeding, Robinson indi-

cated that he might answer questions put by defense

counsel. The district court then ruled that, though he was

“unavailable” as a witness within the meaning of Rule

804(b)(5) of the F. R. Evid., he was “available” for

cross-examination by defense counsel. In the presence of

the jury, Robinson stated that he knew Garner and

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McKethan and that his grand jury testimony was inaccu-

rate. He answered some questions about European travel

with answers which seemed to say that he knew nothing

of any drug trafficking by Garner or McKethan. At other

times he declined to answer, and his seeming disclaimers

of knowledge may have been understood by the i" <o

be the equivalent of a refusal to testify. The transcript

gives one the general impression not that the grand jury

testimony was false but that, whatever pressures were

brought upon him, the defendant was unwilling to testify

and particularly unwilling to say anything which would

incriminate either of these defendants.

There is no explanation of this unwillingness. Cooper-

ating former co-conspirators have sometimes been the vic-

tims of threats by their former associates facing trials.

That Robinson was the victim of threats by either Garner

or McKethan, however, can be no more than speculation.

Robinson was in prison at the time, and he may have

been the victim of the code that condemns a conspirator

for testifying against his former associates.

II.

In United States v. West, 4th Cir., ==

we have upheld the admission of sworn grand jury testi-

mony, though not subject to cross-examination, when the

witness was murdered in the interim between his grand

jury testimony and the trial of the drug offenders. In

that case, there was extraordinary corroboration of the

grand jury testimony, for he had been wired for sound;

his conversations had been recorded; he had been kept

under close surveillance when not within buildings, and

the officers who had watched and recorded his conversa-

tions were witnesses available for cross examination.

In United States v. Carlson, 8th Cir., 547 F.2d 1346, a

grand jury witness refused to testify at Carlson’s trial

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because, he said, of threats directed to him by Carlson.

That, too, was a drug offense case. There was substantial

circumstantial corroboration of the grand jury testimony.

Because of that, and a general affirmation by the witness

at trial of his grand jury testimony, the Fighth Circuit

held the grand jury testimony admissible under Rule

804(b)(5). As to the Confrontation Clause, it held that

Carlson had waived his right, reasoning that Carlson

should not be allowed to complain of the silence of the

witness when he was the procuror of the silence. See

Motes v. U.S., 178 U.S. 458, 471-472.

On the other hand, in United States v. Gonzales, 5th

Cir., 559 F.2d 1271, the Fifth Circuit, in another drug

offense case, held that the testimony of the grand jury

witness was inadmissible. There the grand jury witness

had been most reluctant to testify during his appearance

before the grand jury, apparently torn between the pos-

sibility of injury to himself or his family if he testified

and further imprisonment for contempt if he refused.

Faced with these unpleasant alternatives, the pressure to

testify may have prompted the witness falsely to identify

the defendant as his employer, and the identity of the

employer was entirely dependent upon the testimony of

the witness.

Since we have canvassed this scene in West, we need

not repeat it here. It is enough to recite that sworn grand

jury testimony may be admitted under Rule 804(b)(5)

when there are substantial guarantees of trustworthiness

equivalent to those which warrant recognized exceptions

to the hearsay rule. The admission of such sworn testi-

mony is not a violation of the Confrontation Clause of

the Constitution if it bears sufficient guarantees of reli-

ability and the circumstances contain a sufficient basis

upon which the jury may assess its trustworthiness. The

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distinction is illustrated by the strong indicators of relli-

ability found in West and the absence of such indicators

in Gonzales. See also U. S. v. Rogers, 549 F.2d 490 (8th

Cir. 1976), cert. denied ___ U.S. —_ (1977.

Here there are strong indicators of reliability, and the

jury had an ample basis upon which to determine the

trustworthiness of the testimony.

One of the two young women who, according to

Robinson’s grand jury testimony, had accompanied

Garner and him on their trip to Amsterdam beginning on

October 15, 1974, was produced as a witness at the trial.

She fully confirmed Robinson’s grand jury testimony

about the trip. She, Miss McKee, and a Miss Hallums, had

accompanied Garner and Robinson to Amsterdam for the

purpose of serving as couriers. While in Amsterdam, Miss

McKee shared a hotel room with Robinson, while Miss

Hallums shared another nearby room with Garner. After

Garner and Robinson had procured the heroin, she testi-

fied, Robinson “blended” it into powder form and pack-

aged it into two packages. This was done in a hotel room

in which Garner and the two women were also present.

Miss McKee “‘snorted”’ some of the heroin, and the men

showed the girls how to conceal one package each in her

girdle. The two girls then flew to Dulles, while the two

men took another plane to New York, just as Robinson

had testified. When the men got to Washington, Miss

McKee testified she delivered the two packages of heroin

to Garner, who was sitting on the passenger side of a car

being driven by Robinson.

Moreover, there was irrefutable evidence of their trav-

els. The United States introduced records of airline tick-

ets, customs declarations, passport endorsements, and

European hotel registrations. They show that McKethan

ee

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made five trips to western Europe between mid-July 1974

and mid-March 1975. Garner made seven such trips

in the same period. These records show that McKethan

was iff Amsterdam in early September 1974 when Robin.

son testified that he and Garner met him there and made

their first contact with the Chinese supplier. McKethan

and Garner were also in Copenhagen at the same time in

December 1974 and apparently were traveling on the

same flights to Copenhagen and Amsterdam in March

1975.

Moreover, the records show that Henry Thompson

arrived at Dulles from Europe on September 4, 1974.

Thompson was a member of the United States Armed

Forces stationed in West Germany. He was McKethan’s

cousin. On his entry form he noted that he would be

staying with McKethan and that McKethan was a person

who would know his whereabouts. Robinson had testi-

fied that Garner had used Thompson, their initial heroin

contact in Europe, as a courier after Garner’s first trip,

although the available records indicate that Thompson

was on the same flight with Garner and Robinson return-

ing from their first joint trip. Testifying from his recollec-

tion more than a year later, Robinson may have been

confused about which trip Thompson made, but the

record of Thompson’s flight provides general corrobora-

tion of Robinson’s testimony that he was used as a

courier,

These travel records would contain no implication of

guilt if the record contained any reasonable explanation

of them consistent with imnocence. If the defendants

were stewards employed by Pan American Air Lines in

international flights, their frequent European travels

would contain no suggestion of wrong doing. Suspicion

would not attach if they were reputable international

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businessmen with branches in Holland, Denmark and the

United States. For others of us, however, having no

patent occasion for frequent European travel, the sudden

onset of successive trips of short duration alone can raise

suspicion as long as any reasonable explanation is lacking.

As to Garner, there is no suggestion of any such explana-

tion. McKethan testified, however, and attempted to

offer one but, as a description of it will indicate, it may

fairly be regarded as preposterous. The only believable

explanation of the frequent trips is that offered by

Robmson in his grand.jury testimony, and the record of

the trips strongly tends to corroborate the testimony.

McKethan was employed as a cargo handler by United

Airlines in Washington National Airport. His airline

employment, he testified, entitled him to very large dis-

counts on airline fares, and he made his frequent trips to

Frankfurt, Copenhagen, Amsterdam and London mostly

for pleasure. For a while he had a girlfriend in Copen-

hagen, a fact that Robinson had mentioned. He was also

learning the “language of the pyramids” from a black

African in Europe,! and he was busy making inquiries in

Germany and Sweden about the importation into the

United States of Mercedes-Benz automobiles and Swedish

sheepskin jackets. He did not suggest how an airline cargo

handler might finance such businesses, nor was any such

business developed.

Robinson, in his grand jury testimony, did not suggest

that McKethan was a part of the distribution business

conducted jointly by Garner and Robinson for a number

of months, and later separately by each, but did testify

| According to McKethan, knowledge of this “lost language

of the pyramids” would enable him to arrive eventually at “logical

procedures of understanding.” McKethan sought in Copenhagen

“rythm|([s] [sic] of understanding.”

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that McKethan was the one who initially suggested that

he could put them in touch with Henry Thompson in

Frankfurt as a source of supply. According to Robinson,

he agreed to meet them in Frankfurt in September, but

' by the time Garner and Robinson arrived at Thompson’s

house, they were told by Thompson’s girlfriend that she

, was to take them to Amsterdam. In Amsterdam they did

meet McKethan and Thompson, who put them in touch:

with a Chinese supplier. According to Robinson,

McKethan was paid some $10,000 for his part in arrang-

ing this source of supply for them. Later, Robinson had

testified, McKethan agreed to meet Garner in Amster-

dam, for the purpose of showing Garner how to avoid the

thorough searches made of passengers flying out of

Amsterdam to the United States. This turned out to be

no more than taking a train from Amsterdam to Copen-

hagen and flying from there to the United States. After-

wards McKethan complained to Robinson that Garner

had not paid him the $7,000 he promised. Moreover, the

joint trip by Garner and McKethan in March 1975,

against this background, does not suggest that McKethan

was off on an independent lark of hiw own.

McKethan did admit having received a payment of

$3500 from Robinson on one occasion, but he claimed

that he had set up a grocery business for Robinson,

though none of the stock was issued in Robinson’s name,

‘ and the $3500 was in payment for his services in setting

i up the grocery business.

McKethan’s testimony does not tarnish the badges of

reliability for Robinson’s grand jury testimony. He offer-

ed innocent explanations of his frequent trips to Europe,

but the jury was entitled to find the explanation incre-

dible. The fact remains that the truthfulness of Robin-

son’s grand jury testimony is strengthened by the testi-

mony of Miss McKee and, particularly, by the airline

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tickets, customs declarations, passport endorsements, and

hotel records. This is enough to satisfy the requirements

of Rule 804(b)(5) and to avoid the bar of the hearsay

rule. It also satisfies the requirements of the Confronta-

tion Clause.

In this case, of course, Robinson did appear on the

witness stand. Indeed, the defendants complain that this

prejudiced their cases in the minds of the jurors, but the

judge ordered the initial examination of Robinson in the

presence of the jury in order that the jury would not be

left with speculation about the reason for Robinson’s

absence, speculation which might have suggested inferen-

ces more hurtful to the defendants than Robinson’s

refusal to testify. He was presented for cross-examination

only after Robinson had stated in an in camera hearing

that he might answer the questions of defense counsel,

and that he could not tell whether he would respond

until they asked the questions. Though, as we have indi-

cated earlier, the jurors may have taken Robinson’s ear-

lier disclaimers of knowledge as equivalent to a later

explicit refusal to testify, they also may have received

such disclaimers, with Robinson’s statement that his

grand jury testimony was inaccurate, as exculpatory. In

any event, the jury saw and heard Robinson on the wit-

ness stand. What they saw and heard may have been of

substantial assistance to the jury in assessing the truthful-

ness of his grand jury testimony. We do not hold, how-

ever, that this cross-examination under these difficult

circumstances was adequate to meet the requirements of

the Confrontation Clause. Cf. U. S. v. Insana, 423 F.2d

1165 (2d Cir.) cert. denied, 400 U.S. 841 (1970; U.S. v.

Mingoia [sic], 424 F.2d 710 (2d Cir. 1970). It is enough

that the grand jury testimony was admissible because of

its strong corroboration by the testimony of Miss McKee

and the undeniable records.

i rete

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ITI.

Garner received two successive ten-year sentences

under the federal narcotics conspiracy statute, one for

conspiracy to import heroin in violation of 21 U.S.C.

§ 963 and one for engaging in a conspiracy to distribute

heroin in violation of 21 U.S.C. § 846. He objects to the

imposition of two successive sentences upon him, claim-

ing that there was one conspiracy though it encompassed

both importation and distribution.

The Supreme Court in Braverman v. United States,

317 U.S. 49 (1942), held that under the general conspir-

acy statute’ Congress intended to authorize the imposi-

- tion of only one sentence, though any given conspiracy

may contemplate the commission of more than one sub-

stantive crime. What is required, however, is that each

separate conspiracy statute be examined to determine the

congressional intent with respect to the possible imposi-

tion of successive sentences.* With respect to the federal

narcotics conspiracy statutes, this was carefully done by

the Fifth Circuit in United States v. Houltin, 525 F.2d

943 (5th Cir. 1976), modified in 553 F.2d 991.* For the

reasons stated by the Fifth Circuit in Houltin, we think

that in enacting the federal narcotics acts the Congress

regarded conspiracy tc import heroin and conspiracy to

distribute heroin in the United States nor [sic] only as

separate offenses but as offenses so compounding each

other that a conspiracy embracing each should be treated

218 U.S.C. §371

3Simpson v. United States,___ U.S. __ , 46 U.S.L.W. 4159

(1978); Gore v. United States, 357 U.S. 386 (1958).

*accord United States v. Marotta, 518 F.2d 681, 685 (9th

Cir. 1975). But see U.S. v. Honneus, 508 F.2d 566 (1st Cir.

1974); U.S. v. Adcock, 487 F.2d 637 (6th Cir. 1973).

l4a

as two separate conspiracies, warranting the imposition of

successive sentences for violations of the two separate

conspiracy statutes.

IV.

The defendants advanced a number of other conten-

tions of less moment, but we find no reversible error in

any of them.

AFFIRMED.

WIDENER, Circuit Judge, concurring and dissenting:

While I concur in Parts III and IV of the opinion, I

respectfully dissent to admitting the grand jury testimony

for the reasons I have expressed in United States v.

Payne, 492 F2d 449 (4th Cir. 1974), and United States v.

West, et al., Nos. 76-1837/1838/1839/1840/1841/1842/

1843 (4th Cir. 1978).

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APPENDIX B

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-1837

United States of America,

versus

Calvin W. West,

No. 76-1838

United States of America,

versus

Calvin W. West,

No. 76-1839

United States of America,

versus

Calvin W. West,

No. 76-1840

United States of America,

versus

Floyd Lee Davis,

Appellee,

Appellant.

Appellee,

Appellant.

Appellee,

Appellant.

Appellee,

Appellant.

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No. 76-1841

United States of America,

versus

Floyd Lee Davis,

No. 76-1842

United States of America,

versus

Calvin W. West,

No. 76-1843

United States of America,

versus

Joseph Lee Dempsey,

Appellee,

Appellant.

Appellee,

Appellant.

Appellee,

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia, at Norfolk. John A.

MacKenzie, District Judge.

Argued January 14, 1977 Decided February 13, 1978

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Before HAYNSWORTH, Chief Judge, RUSSELL and

WIDENER, Circuit Judges

Robert L. Sondej (Mattox, Sondej, Young and Whitlow

on brief) for Appellant in 76-1840 and 76-1841; Paul M.

Lipkin (Robert H. Anderson, Jr., Goldblatt, Lipkin, .

Cohen, Anderson & Jenkins on brief) for Appellant in

76-1843; S. DeLacy Stith for Appellant in 76-1837,

76-1838, 76-1839 and 76-1842; Justin Williams, Assistant

United States Attorney, Stephen Wainger, Assistant

United States Attorney (William B. Cummings, United

States Attorney on brief) for Appellee in 76-1837

through 76-1843.

HAYNSWORTH, Chief Judge:

Calvin W. West, Floyd Lee Davis and Joseph Lee

Sempsey appeal their convictions for distributing heroin

and possessing heroin with the intent to distribute it. The

most significant question presented is whether the admis-

sion of the grand jury testimony of Michael Victor

Brown, who was slain prior to trial, was permissible under

Rule 804(b)(5) of the Federal Rules of Evidence and the

Confrontation Clause of the Sixth Amendment. We hold

that it was.

The convictions challenged here are the product of an

extensive Drug Enforcement Agency (DEA) investigation

in which Brown played a vital role. Brown volunteered

his assistance to the DEA while he was in jail on a drug

charge and under a detainer for parole violation. He

agreed to purchase heroin under police surveillance.

Each purchase was similar. Brown would contact West

or Davis and arrange to purchase heroin. Twice the DEA

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monitored Brown’s calls to West arranging heroin deals.

It also monitored one phone call to Davis. On other occa-

sions it seems that Brown simply notified the DEA that

he had arranged a purchase.

Each time that the DEA egents received notice that

Brown was about to make a purchase, they made arrange-

ments for extensive surveillance. Before each purchase,

DEA agents strip-searched Brown to make sure that he

had no drugs, and they concealed a transmitter on him.

They then searched his vehicle to be sure that it con-

tained no drugs and gave Brown the money required for

the anticipated purchase.

According to the government’s evidence, on three

occasions, Brown went to West, gave West money, and

obtained heroin. Twice Brown went to Davis, gave Davis

money and obtained heroin. On another occasion, Brown

gave West money then accompanied him to meet Demp-

sey. West then gave Dempsey money and told Brown that

they were to meet Dempsey at Griffin’s home. Brown

and West went to Griffin’s home. Dempsey arrived, went

to the open window of Brown’s car and then entered

Griffin’s home and told Brown that everything was all

right. Brown then returned to his car to find 30 capsules

of heroin.

Each time, law enforcement officials observed Brown’s

movements and obtained photographs of Brown as he

met with West and with Davis. After each transaction

Brown returned to the DEA office and surrendered the

heroin that he had purchased and any money remaining.

Each time the agents searched Brown and his car to be

sure that he retained no contraband. Agent Scott then

discussed with Brown the events that had taken place and

composed a detailed summary of what had occurred,

which Brown read, corrected and signed. After one of the

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purchases Brown himself prepared a statement which

Agent Scott revised before Brown read, corrected and

signed it. Each time, Scott and Brown listened to the

tapes from the body transmitter for audibility and voice

identification. By reviewing the tapes with Brown, Scott

independently became able to identify the voices of the

defendants.

On March 8, 1976, the defendants end others were

indicted by a grand jury, apparently without Brown’s

testimony. On March 16, Brown appeared before a grand

jury and testified under oath regarding his knowledge of

the drug traffic in Virginia’s Tidewater area. The govern-

ment attorney read the statements that Brown had signed

and periodically asked Brown if they were correct.

As a result of his cooperation, Brown was released

from jail, the pending drug charge against him was nol

prossed, and the detainer for parole violation was lifted.

The DEA also gave Brown $855 for his personal use so

that he would not arouse suspicion and jeopardize his

cover by being without funds immediately after suppos-

edly selling a large amount of heroin.

On March 19 Brown was murdered in a manner sug-

gestive of contract killers. Four bullets were fired into the

back of his head while he was driving his car. According

to the government, at least four potential government

witnesses in this and related narcotics investigations have

been murdered after they had agreed to cooperate. But

these defendants have not been charged with Brown’s

murder, and the government did not offer any evidence

to show that they were responsible for it.

On April 22, a week before the scheduled trial date,

the government notified the defendants, pursuant to Rule

804(b)(5) of the Federal Rules of Evidence, that it in-

tended to introduce Brown’s grand jury testimony at

trial. It agreed to give defense counsel all of its evidence.

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including Brown’s arrest record, and transcripts of the

tapes of Brown’s conversations with the defendants.

After a pre-trial hearing, the district court ruled that

the grand jury testimony was admissible under Rule

804(b)(5) because, under the circumstances, it was essen-

tial and trustworthy. It also gave the defense a week’s

continuance after it announced that it would admit

Brown’s grand jury testimony.

During the trial the government introduced the tran-

script of Brown’s grand jury testimony, the photographs,

an expert on voice identification and the heroin. It also

played the tapes of Brown’s conversations with the

defendants. Law enforcement agents testified about their

observation of Brown’s activities and corroborated

Brown’s highly detailed grand jury testimony. The gov-

ernment sought to introduce transcripts which it had pre-

pared from the tapes from Brown’s body transmitter.

Although the district judge found that the transcripts

were a fair representation of the taped conversations, he

permitted the jury to see the transcripts only while they

listened to the tapes and instructed the jurors to decide

for themselves what the tapes said.

I.

The defendants contend that the district judge erred in

concluding that the transcript of Brown’s grand jury

testimony was admissible under Rule 804(b)(5).

Rule 804(b)(5) provides:

“(b) Hearsay exceptions. The following are not ex-

cluded by the hearsay rule if the declarant is un-

available as a witness:

KEKE

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(5) Other exceptions. A statement not specifically

covered by any of the foregoing exceptions but

having equivalent circumstantial guarantees of trust-

worthiness, 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 interests of justice will best be served by

admission of the statement into evidence.” |

The defendants do not contend that the grand jury

transcript fails to meet the criteria of clauses (A), (B) and

(C). Instead, they focus upon the general requirement

that the statement have “equivalent circumstantial guar-

antees of trustworthiness”’ as statements the admission of

which is authorized by any of the preceding four para-

graphs. They find a lack of trustworthiness in Brown’s

criminal record and their lack of any opportunity to

cross-examine him. They point to legislative history indi-

cating that Rule 804(b)(5) applies only where “excep-

tional circumstances” lend to the extra-judicial statement

a degree of trustworthiness equivalent to that of evidence

admissible under other § 804(b) exceptions. !

' The defendants also rely upon United States v. Fiore, 443

F.2d 112 (2d Cir. 1971) in which it was held that grand jury testi-

mony was inadmissible where the declarant was physically available

but refused to take the oath and submit to meaningful cross-exam-

ination. Fiore is inapposite, for it was decided before the adoption

of Rule 804(b)(5). Two cases decided after adoption of the rule

have reached opposite results. Compare United States v. Carlson,

547 F.2d 1346 (admitting prior grand jury testimony under Rule

804(b)(5) with United States v. Gonzalez, 559 F.2d 1271 (5th Cir.

1977) (testimony not admissibie). Both courts focused for pur-

poses of their analysis of the admissibility of the evidence under

the F.R. Evid. on its reliability.

22a

There were present very exceptional circumstances

providing substantial guarantees of trustworthiness of

Brown’s grand jury testimony probably exceeding by far

the substantial guarantees of trustworthiness of some of

the other § 804(b) hearsay exceptions. Before each con-

tact by Brown with West, Davis or Dempsey, the agents

took elaborate steps to assure themselves that Brown

possessed no drugs or money other than the money sup-

plied by the agents to effect the purchases. Except when

he entered a building and became concealed from their

view he was under constant surveillance, and photographs

were taken when he was with one of the defendants.

Moreover, his transmitter was broadcasting his conversa-

tions with the defendants, and a tape recorder preserved

those conversations. Moreover, immediately after each

purchase, he and one of the agents reviewed what Brown

had done, said and observed, and a statement of it was

prepared and corrected. The immediate transcription and

verification of Brown’s statements provide an additional

guarantee other admissible hearsay statements lack.? But

the most impressive assurance of trustworthiness» come

[sic] from the corroboration provided by the observations

of the agents, the pictures they took and their recordings

of the conversations. Brown had a criminal record, and he

was seeking favors to avoid further incarceration, but the

circumstances make deception of the agents inconceiv-

able. The agents simply followed, photographed and

recorded conversations to such an extent that deception

by Brown was substantially impossible. Moreover, his

interest in gaining favors to avoid further imprisonment

gave him every incentive to be extremely accurate in his

reports. He knew what the agents were doing to corrob-

orate and verify his reports, and any attempted deception

2 See McCormick Evidence, §261 at 626 (2d Edition, 1972).

23a

*

would only have been calculated to arouse the suspicion

of the agents and to lose for Brown their favor.

The substantially contemporaneous sworn written

statements by Brown were the basis of Brown’s grand

jury testimony. The corroborative circumstances and ver-

ification procedures lend to his grand jury testimony a

degree of trustworthiness probably substantially exceed-

ing that inherent in dying declarations, statements against —

interest, and statements of personal or family history, all

of which are routinely admitted under §804 (b)(2)(3)

and (4).

Although Brown’s grand jury testimony was not sub-

ject. to immediate cross-examination, to a large extent

what Brown said was corroborated by the observations of

the agents. The agents did appear as witnesses and were

subject to cross-examination about what they observed,

including the possibility of mistake or prevarication by

Brown, and their own roles in preparing Brown’s state-

ments. Moreover, defense counsel had Brown’s criminal

record and knew of his interest in gaining favor with the

agents. They could, and did, present those bases of im-

peachment of Brown which might have been developed

on cross-examination if Brown had been present to tes-

tify.

Under all of these circumstances, the absence of an

opportunity to cross-examine Brown himself is of consid-

erable less significance than in those cases involving state-

ments against interest, statements of family history, or

dying declarations.

Whether the circumstantial guarantees of trustworthi-

ness of Brown’s grand jury testimony are equivalent to

those which arise from cross or direct examination which

underlies the former testimony exception of §804(e¢)(1),

we need not determine. In this unusual case, those guar-

24a

antees were probably greater, but the equivalent guaran-

tee of trustworthiness requirement of §804(b)(5) is met

if there is equivalency of any one of the preceding §804

(c) exceptions. Clearly there is such equivalency with the

exceptions we find in paragraphs 2, 3, and 4.

The defense lawyers were given every opportunity to

attack Brown’s credibility, and they fully utilized their

opportunities. It may be of passing significance that the

jury did not accept all that Brown said, for it acquitted

two of the defendants implicated by him. That it con-

victed West, Davis and Dempsey suggests that it carefully

considered the very substantial extent to which the

corroborative evidence established their guilt, either

directly or through strong demonstration of the trust-

worthiness of Brown’s testimony as to them.

Il.

The contention is earnestly advanced that even though

Brown’s grand jury testimony meets the requirements of

§804(b)(5) of the Federal Rules of Evidence, its admis-

sion was barred by the Confrontation Clause of the Sixth

Amendment. That Clause provides “In all criminal pros-

ecutions, the accused shall enjoy the right . . . to be con-

fronted with the witnesses against him.”

The Supreme Court has consistently held that the Con-

frontation Clause itself does more than to require that

the prosecution produce available witnesses for live testi-

mony. It affirmatively requires the exclusion of extra-

judicial statements which have no badges of reliability.

Thus, we are required to make a separate determination,

focusing upon the Confrontation Clause itself, whet’ r

Brown’s grand jury testimony bore sufficient guarantees

of reliability, Dutton v. Evans, 400 U.S. 74, 89 (1970), or

whether the circumstances provided the jury with suffi-

Oe -

eee

25a

cient bases to judge its trustworthiness. California v.

Green, 399 U.S. 149, 161 (1970).

It has long been recognized that the Confrontation

Clause does not preclude the admission in a criminal trial

of all extra-judicial declarations. As long ago as 1892, the

Supreme Court held in Mattox v. United States, 146 U.S.

140, that the Confrontation Clause does not require the

exclusion in a criminal trial of a dying declaration, and it

recognized that there are other analogous situations in

which extra-judicial declarations might be allowable. °

More recently, statements against penal interest have

been held admissible,* and in California v. Green, 399

5 Mattox at 151.

*Chambers v. Mississippi, 410 U.S. 284 (1973); Dutton v.

Evans, 400 U.S. 74 (1970). Though holding such declarations ad-

missible, the Court, in Chambers v. Mississippi, was not concerned

with the Confrontation Clause. At his trial, Chambers undertook

to prove in his own defense that one McDonald, rather than he,

fired the fatal shots. He sought to present McDonald as an adverse

witness, but was prevented from doing so by an application of Mis-

sissippi’s witness voucher rule. He then tendered three witnesses,

close associates of McDonald’s, who would have testified that,

shortly after the slaying, McDonald had made spontaneous state-

ments to each of them, separately, strongly implicating himself as

the slayer. The testimony was rejected, for, while Mississippi

recognized as an exception to the hearsay rule a statement against

pecuniary or proprietary interest, it did not recognize as such an

exception to the hearsay rule a statement against pecuniary or

proprietary interest, it did not recognize as such an exception a

statement against penal interest. The Supreme Court examined the

indicia of trustworthiness surrounding these statements. These

included their spontaneity, the fact that each was made in seeming

confidence to a close associate, the fact that each tended to corrob-

orate the other, the fact that there was an eyewitness to testify

that McDonald fired the fatal shots, and the fact that McDonald

was known to have owned a revolver similar to the one employed

in the shooting. The conclusion was that the three declarations

were shown to have been of sufficient trustworthiness that they

were not only admissible, but their rejection was a denial of

[footnote continued }

26a

U.S. 149 (1970), the Supreme Court held that testimony

at a preliminary hearing was admissible when the witness

at trial suffered a loss of memory, since the preliminary

hearing testimony had been subject to cross-examination.

Testimony at an earlier trial of a witness unavailable at

the time of the retrial is similarly admissible, Mancus? v.

Stubbs, 408 U.S. 404 (1972).

It is true that testimony of a witness at a preliminary

hearing which was not at all subjected to cross-examina-

tion because the defendant had no lawyer present, con-

stitutionally may not be admitted under the Confronta-

tion Clause.? The Confrontation Clause also requires the

exclusion of a confession implicating the defendant given

to police by a witness who invoked his privilege against

self incrimination to avoid testifying at the trial.6 The

confession was doubtless against the penal interest of the

witness, but it was a confession given under potentially

coercive circumstances which would not be adequately

examined; they were not the spontaneous declarations

made to friends and confederates which were held to be

admissible under the Confrontation Clause in Dutton v.

Evans.

The cases in the Supreme Court considering the appli-

cation of the Confrontation Clause to the admission of

previously recorded testimony have distinguished be-

tween testimony subject at the time to cross-examination

Chambers’ due process right to a fair trial. The rejection of the

testimony of those witnesses, coupled with the state’s refusal to

permit Chambers to cross-examine McDonald, who had repudiated

a formal confession and asserted an alibi, resulted in the reversa! of

Chambers’ conviction for want of a fair trial.

Pointer v. Texas, 380 U.S. 400 (1965). See Barber ». Page,

390 U.S. 719 (1968).

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

ee

27a

and testimony which was not. When tested to cross-

examination, the testimony gained some added measure

of reliability and, even with a written record, the trier of

fact is given some basis for judging the credibility of the

testimony from the answers to the cross-examination. It

is not as satisfactory as it is when the trier of fact can

observe the demeanor of the witness, but evasive answers

may still appear evasive on paper, and forthrightness can

be evident in writing.

The Supreme Court has never intimated, however, that

cross-examination is the only means by which prior

recorded testimony may be qualified for admission under

the Confrontation Clause. Just as surrounding circum-

stances may give assurance of reliability to dying declar-

ations and to declarations against penal interest, so sur-

rounding circumstances may give assurance of reliability

to prior recorded testimony which was not subject at the

time to cross examination. They also may provide the

trier of fact with firm bases for judging the credibility of

the witness and the truthfulness of his testimony.’

Such circumstances are present in abundant measure

here. We have canvassed them in considering the admis-

7 Compare United States v. Rogers, 549 F.2d 490, 500 (8th

Cir. 1976) (prior testimony of witness with memory lapse had suf-

ficient indicia of reliability so that Confrontation Clause was not

violated by admission) with U.S. v. Gonzalez, 559 F.2d 1271 (5th

Cir. 1977) (grand jury testimony lacked surrounding indicia of reli-

ability so that admission violated Confrontation Clause). Both the

Rogers and Gonzalez courts acknowledged that the reliability of

hearsay evidence in part determines whether admission of the evi-

dence violates the Confrontation Clause. Each case must be exam-

ined on ts own facts. We do not hold that all hearsay admissible

under the 804(b)(5) exception to the rule against hearsay can be

admitted without violation of the Confrontation Clause rights of a

defendant. We hold only that analysis under both Rule 804(b)(5)

and under the Confrontation Clause must begin by focusing on the

reliability and trustworthiness of the challenged statement.

28a

sibility of the testimony under §804(b)(5) of the Federal

Rules of Evidence. The agents testified to their prepara-

tion of Brown for each contact with the defendants, to

what they observed during their surveillance, to their

recordings of Brown’s conversations with the defendants

and others, and the preparation of Brown’s written and

signed statements immediately after each event. More-

over, the jury listened to 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 testi-

mony 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 excep-

tions to the hearsay rule which do not contravene the

Confrontation Clause.” The dying declaration and the

declaration against penal interest have indicia of reliabil-

ity which warrant their admission as exceptions to the

hearsay rule while at the same time warranting their

admission under the Confrontation Clause.

In the plurality opinion in Dutton, rejected hearsay

declarations involved in earlier cases were characterized as

“devastating” or “crucial”. This has led to the supposi-

tion that the principle of Dutton applies only when the

declaration is neither crucial nor devastating, see, The

Supreme Court, 1970 Term, 85 Harv. L. REV. 3, 192, 196

(1971); at least, the standard of reliability should be ele-

vated as the adverse impact of an extra-judicial declara-

tion mcreases. We, however, find no basis for applying

such a rule. If the admission of the declaration is harm-

—

29a

less, no problem is presented, but faithfulness to the con-

stitutional principle demands the exclusion of all extra-

judicial declarations having no substantial indicia of relia-

bility if admission of the declaration would have some

tendency to persuade the jury to a finding of guilt. A

flexible standard of more or less indicia of reliability

triggered by suppositions about the force of the impact

of the particular evidence upon the jury could hardly

) provide a workable standard. Here, the indicia of relia-

bility are great, but we reject the notion that small indi-

cations of reliability will suffice if the prejudicial effect

of the declaration is supposed to be not great while pre-

serving a stricter standard for the admission of declara-

tions seemingly having a greater impact.

For these reasons, we find no error in the admission

of Brown’s grand jury testimony.

Sse 2 eae see

ITI.

We find nothing meriting discussion in the remaining

contentions.

The agent’s testimony that Brown had dialed West’s

telephone number and the agent’s identification of

West’s voice, which he learned to recognize from fre-

quent review of the tapes, was sufficient authentication

of the tape of October 30, 1975.

Nor did the trial judge abuse his discretion in permit-

ting the jury to see transcripts of the taped conversations

as the tapes were being played. The transcripts were fair,

though the judge instructed the jurors to depend upon

their own hearing of the tapes. United States v. Hall, 342

F.2d 849, 853 (4 Cir. 1965).

30a

o

The evidence of the guilt of West and Davis was more

than abundant; that of Dempsey’s guilt was quite ade-

quate.

AFFIRMED.

WIDENER, Circuit Judge, dissenting:

I respectfully dissent.

I

Initially, I believe that the majority errs in its estima-

tion of the reliability of testimony taken before a grand

jury and therefore not subject to cross-examination. In

a recent opinion of this court, N.L.R.B. v. McClure Asso-

ciates, Inc., 556 F.2d 725 (1977), we held that the affi-

davit of an individual who had no interest in the outcome

of the proceedings, and was not an employee of the com-

pany, obtained by an agent of the National Labor Rela-

tions Board in the ordinary course of his investigation of

an unfair labor practice charge, and offered against the

Board by the company in its defense to the charge, did

not have such equivalent circumstantial guarantees of

trustworthiness as to allow its admission.! Accordingly,

I do not agree that the guarantees of trustworthiness sur-

rounding the grand jury testimony in this case are any

greater and should not be held sufficient to allow its

introduction into evidence under the residual exception

' The opinion refers to the consideration of admission under

Federal Rules of Evidence 803(24) which is identical in text to

804(b)(5) upon which rests the majority’s decision to allow the

admission of the hearsay grand jury testimony into evidence. I

see no difference of moment here in the equivalent guarantees of

trustworthiness under the two rules just cited.

et ee

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3la

to the hearsay rule. Certainly the rule of exclusion

should be at least as broad in criminal as in civil proceed-

ings.

Il.

I raise again the objections I voiced in the dissent in

United States v. Payne, 492 F.2d 449 (4th Cir. 1974).

Here, as in that decision, the majority has confused the

issues of the admissibility of hearsay and the right of a

criminal defendant to be confronted by his accusers.

While the two different rules of law may “stem from the

same roots,” they are by no means identical, but are

closely akin. Dutton v. Evans, 400 US 74, at p. 86

_ (1970).

The majority’s treatment of the confrontation clause

again, as in Payne, reduces the constitutional provision

to the status of a mere rule of evidence when, in fact,

the clause was intended to regulate the procedure of a

criminal trial by compelling the presence of the accuser

before the jury and the defendant. The court concludes

that because the grand jury testimony is reliable, the con-

frontation clause is not violated; that because the circum-

stances surrounding the testimony, including the corrob-

oration of Brown’s assertions by the federal agents, indi-

cate that Brown may well have been truthful, the jury

could assess his veracity in his absence. At root, then, of

the majority’s analysis is its conclusion that Brown in-

deed spoke the truth, that his testimony was reliable,

being corroborated, and that, the jury having been pres-

ently with sufficient indications of Brown’s sincerity, the

defendant’s right of confrontation was not abridged.

2«1t seems apparent that the Sixth Amendment’s Confron-

tation Clause and the evidentiary hearsay rule stem from the same

roots. But this court has never equated the two, and we deciine to

do so now.” Dutton, at p. 86 (footnotes omitted).

32a

This analysis is, however, misplaced.° While it has

been said “the mission of the confrontation clause is to

advance a practical concern for the accuracy of the truth

determining process in criminal trials by assuring that ‘the

trier of fact [has] a satisfactory basis for evaluating the

truth of the prior statement,’ California v. Greene,”

Dutton v. Evans, 400 US at p. 89, the whole question is

not, as the majority treats it, whether the testimony is in

fact truthful; rather, the issue is whether there has been

such “adequate ‘confrontation’ ” as to satisfy the require-

ments of the Constitution’s Sixth Amendment. Dutton,

400 US at p. 97 (Harlan, J., concurring). Hence, we

should not be lured by the possible reliability of out-of-

court statements, important as that is in the considera-

tion of the problem as a rule of evidence, away from the

ultimate constitutional prescription, which is the regula-

tion of trial procedure.

The majority opinion proves too much. With all its

analysis of the surrounding indicia of the reliability of

Brown’s grand jury testimony, one conclusion is com-

pelled: the introduction of the testimony was far from

being harmless error.

The government, indeed, succeeded in presenting to

the jury evidence full of danger to the accused, without

incurring the risk of either a personal view of the declar-

ant by the jury or a face-to-face encounter between the

accuser and the accused before the jury, the ultimate

arbiter in the contest of truth between the two. Instead,

the jury merely heard read the testimony given in the

proceedings of the grand jury, written on paper with that

>The majority follows the path of the plurality opinion in

Dutton which also looked to indicia of reliability rather than

whether the defendant had been confronted.

33a

additional indicia of verity, and persuasive in its solem-

nity. In my opinion, this procedure cannot be described

other than as trial by affidavit, the very practice against

which the confrontation clause was designed to protect.

“The primary object of the constitutional provision in

question was to prevent depositions or ex parte affidavits,

such as were sometimes admitted in civil cases, being used

against the prisoner in lieu of a personal examination and —

cross-examination of the witness in which the accused has

an opportunity, not only of testing the recollection and

sifting the conscience of the witness, but of compelling

him to stand face to face with the jury tn order that they

may look at him, and judge by his demeanor upon the

stand and the manner in which he gives his testimony

whether he is worthy of belief.”” Mattox v. United States,

156 US 237 (1895) (emphasis added).

Hence, the confrontation clause invokes a means of

trial procedure which provides a minimal, or threshold,

level of protection to the defendant. It expresses our

constitutional condemnation of trial by affidavit and the

concomitant conclusion that the accuser should appear,

personaliter, in order that the jury might observe his

demeanor and appearance in the crucible of courtroom

confrontation. Historically, the rule required the pres-

ence of the accuser; later, the accused was extended,

since the declarant was there, the right to cross-examine.

Now, the constitutional requisites include both “the

opportunity to cross-examine and the occasion for the

jury to weigh the demeanor of the witness.” Barber v.

Page, 390 US 719, at p. 725 (1968). Thus, the essence

of the confrontation clause is the judgment that, as a pro-

cedural requirement, the defendant is entitled, at the very

least, to the presence of his accuser before him and the

jury. In the absence of circumstances accepted by the

Supreme Court as meeting the clause’s requirements, I

34a

believe that the confrontation clause prescribes, at a min-

imum, the presence of the witness who would testify

against the defendant.

I might have less objection had the majority taken a

recognized exception, such as found in Mattox, and

extended its reasoning to this case. The Mattox decision,

which allows the use of a transcript of testimony from a

former trial when the witness has since died, is firmly

rooted in the ancient British statutes which form the his-

torical foundation of the confrontation clause, such stat-

utes making exception for the case of a dead witness.*

Appreciating these historical roots, this court might have

declared that the murder of a witness, whether his death

be at the hands of the defendant or not, as here, allows

the transcript of former grand jury testimony to be used

in evidence. While such a rule might burden the defend-

ant with the risk of the witness’ safety, it at least would

be true to the meaning and history of the constitutional

provision.

*As discussed in Payne, the confrontation requirements of

the Constitution seem to originate in the reaction to the treason

trial of Sir Walter Raleigh. In his defense, Raleigh attempted to

rely on statutes which required the presence and testimony of two

witnesses in a trial for treason. Even though the statutes had been

repealed, there are indications that popular sentiment is England

remained toward requiring the proof of treason by two witnesses.

See Bowen, The Lion and the Throne, p. 195. Thus, the statutes

represented a first step in the development of the rule “requiring

the personal production of those who had already made a state-

ment upon oath.” V Wigmore on Evidence (Chadbourne rev.

1974), §1364, at p. 20. Those statutes, Stat. 5 Edw. 6, c. 12,

§ 22 and Stat. 1 & 2 Philip and Mary, c. 10, §11, provided an ex-

ception to the two witness rule in the case of a deceased witness.

For example, Stat. 5 Edw. read: “Which said accusers at the time

of the arraignment of the party accused, if they be then living, shall

be brought in person before the party so accused, and avow and

maintain that which they have to ile to prove him guilty. . a

(Emphasis added)

-

1 ors ee EY ee ee a

35a

However, the majority has not chosen to follow that

alternative and, instead, I think mistakenly, equates the

Constitution’s regulation of procedure with the rules of

evidence. And it fails to answer the most important

question: did the defendant have an opportunity to con-

front Brown? Accordingly, the opinion dismisses, in a

footnote, the defendant’s reliance on United States v.

Fiore, 443 F.2d 112 (2d Cir. 1971), because that opinion

was decided before the adoption of the Federal Rules of

Evidence and Rule 804(b)(5). But Fiore rejected the

admission of grand jury testimony on _ alternative

grounds: because it was heresay and because its admission

would violate the confrontation clause. 443 F.2d at p.

115. It is at once apparent the reasoning of the majority

on that point is facially self defeating, for, while Congress

may alter the law of hearsay, it may not change the con-

frontation clause. Marbury v. Madison, 1 Cranch 137

(Feb. Term 1803). Hence, on the constitutional issue,

Fiore, by Judge Friendly, is still good law, and we find

ourselves in conflict with the Second Circuit.

I see the use of Brown’s grand jury testimony to be no

more than the disreputable trial by affidavit, the very

cause of the confrontation clause. Even assuming the

murder of a witness might excuse the use of a transcript

of his grand jury testimony, I would not go so far, for

his accidental or otherwise natural death would compel

the same result if the reasoning here is adopted. Grand

jury proceedings are ex parte, with no right of cross-

examination. The object of the proceedings is to gain an

indictment upon a showing of probable cause; thus, there

is not a full blown investigation into the truth, but, like a

preliminary hearing, is “‘ordinarily a much less searching

exploration into the merits of the case than a trial, simply

because its function is the more limited one of determin-

ing whether probable cause exists to hold the accused for

36a

trial.” Barber v. Page, 390 US at p. 725. Finally, we

must recognize that a witness will often make accusations

behind the back of the accused which he will not repeat

to his face.

For these reasons, I would hold that the admission of

the grand jury testimony violated the defendant’s right to

confront his accuser. Even assuming the murder of the

witness might excuse the use of the transcript of his

grand jury testimony, I would yet reserve that question

for the time when the Supreme Court, in its efforts to

equate the constitutional requirements of the confronta-

tion clause with the rules of evidence, might squarely

address that issue.

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