# Appendix — Everett C. McKethan v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0951%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 439 U.S. 936 ## Text la 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 2a 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 3a 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 4a 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 5a 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 6a 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" 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. ms - * ' rf ; i ' 6 el | : : , ; 4 ig - a} aah b a rea? : cand a8 4 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0951%3A2. Public record. Not legal advice.