Appendix — Everett C. McKethan v. United States

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1222

UNITED STATES OF AMERICA,

Appellee,

Ve

EARL A. GARNER,

Appellant.

No. 77-1224

UNITED STATES OF AMERICA,

Appellee,

Vv.

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

2a

Argued Decided

June 10, 1977 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. Rubenstein (Philip J.

Hirschkop, Philip Hirschkop & Associates,

Ltd. on brief) for Appellants; James R.

Hubbard, Assistant United States Attor-

ney (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

complain 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.

nee E>

3a

I.

Warren Robinson, the grand jury wit-

ness, had been indicted for offenses com-

mitted by him in connection with the

importation of the heroin. He had previ-

ously 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 government would dismiss the

indictment. There was no agreement

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 six year sentence. He then ap-

peared as a seemingly willing witness be-

fore a grand jury.

He told the grand jury that Garner had

approached him with information that

McKethan, an airline employee, had a source

for large quantities of heroin in West

Germany. Garner sought to enlist Robinson's

participation in the importation of heroin

from western Europeand its distribution in

the metropolitan Washington area.

4a

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 Garner's first trip, but he and

Garner traveled together on two later

ones, and he wars 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 occasioned 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 ad-

vised him to testify, but to no avail.

After the trial opened, though the court

had granted him use immunity and threatened

him with a contempt citation if he refused,

he persisted in his refusal to testify.

In another in camera proceeding, Robinson

indicated that he might answer questions

put by defense counsel. The district

court then ruled that, though he was “un-

available" 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 McKethan and that his grand jury

testimony was inaccurate. He answered

some questions about European travel with

answers which seemed to say that he knew

5a

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

jury to be the equivalent of a refusal to

testify. The transcript gaves 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 unwill-

ingness. Cooperating former co-conspira-

tors have sometimes been the victims 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.

Il.

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

F.2d _—, ~ we have upheld the admis-

sion of sworn grand jury testimony, though

not subject to cross-examination, when the

witness was murdered in the interim be-

tween 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 build-

6a

ings, and the officers who had watched and

recorded his conversations were witnesses

available for cross-examination.

In United States v. Carlson, 8th Cir.,

547 F.2d 1346, a grand jury witness re-

fused to testify at Carison's trial be-

cause, he said, «f 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 Eighth 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 al-

lowed 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, heid 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 possibility 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.

7a

Since we have canvassed this scene in

West, we need not repeat it here. It is

encugh to recite that sworn grand jury

testimony may be admitted under Rule 804

(b) (5) when there are substantial guaran-

tees of trustworthiness equivalent to

those which warrant recognized exceptions

to the hearsay rule. The admission of

such sworn testimony is not a violation

of the Confrontation Clause of the Con-

stitution if it bears sufficient guaran-

tees of reliability and the circumstances

contain a sufficient basis upon which the

jury may assess its trustworthiness. The

distinction is illustrated by the strong

indicators of reliability found in West

and the absence of such indicators in

Gonzales. See also U. S. v. Regers, 549

F.2d 490 (8th Cir. 1976), cert.denied

ae eee a

Here there are strong indicators of

reliability, and the jury had an ample

basis upon which to determine the trust-

worthiness of the testimony.

One of the two young women who, ac-

cording 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 Hailums, 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

8a

Robinson had procured the heroin, she

testified, Robinson “blended” it into

powder form and packaged 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 Washing-

ton, 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 evi-

dence of their travels. The United States

introduced records of airline tickets,

customs declarations, passport endorse-

ments, and European hotel registrations.

They show that McKethan 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 in Amster-

dam in early September 1974 when Robinson

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 Copen-

hagen 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 sta-

9a

tioned 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 testified 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 returning from their first joint

trip. Testifying from his recollection

more than a year later, Robinson may have

been confused about which trip Thompson

made, but the record of Thompson's flight

provides general corroboration of Robin-

son's testimony that he was used as a

courier.

These travel records would contain no

implication of guilt if the record con-

tained any reasonable explanation of them

consistent with innocence. If the defen-

dants 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 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 ->ione

can raise suspicion as long as any rea-

sonable explanation is lacking. As to

Garner, there is no suggestion of any

such explanation. McKethan testified,

however, and attempted to offer one but,

10a

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 Robin-

son 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 employ-

ment, he testified, entitled him to very

large discounts on airline fares, and he

made his frequent trips to Frankfurt,

Copenhagen, Amsterdam and London mostly

for pleasure. For a while he had a girl-

friend in Copenhagen, a fact that

Robinson had mentioned. He was also

learning the “language of the pyramids"

from a black African in Europe,1l/and he

was busy making inquiries in Germany and

Sweden about the importation into the

United States of Mercedes-Benz automo-

biles 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 McKethar was a part

of the distribution business conducted

jointly by Garner and Robinson for a

l/ 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]

of understanding."

lla

number of months, and later separately by

each, but did testify that McKethan was

the one who initially suggested that he

could put them in touch with Henry Thomp-

son 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 Thomp-

son'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. Accor-

ding to Robinson, McKethan was paid some

$10,000 for his part in arranging this

source of supply for them. Later, Robin-

son had testified, McKethan agreed to

meet Garner in Amsterdam for the purpose

of showing Garner how to avoid the thor-

ough 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 Copenhagen and

flying from there to the United States.

Afterwards McKethan complained to Robin-

son 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 his 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 up the grocery

business.

l2a

McKethan's testimony does not tarnish

the badges of reliability for Robinson's

grand jury testimony. He offered inno-

cent explanations of his frequent trips

to Europe, but the jury was entitled to

find the explanation incredible. The

fact remains that the truthfulness of

Robinson's grand jury testimony is stren-

gthened by the testimony of Miss McKee

and, particularly, by the airline tickets,

customs declarations, passport endorse-

ments, 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 Confrontation 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 examin-

ation 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 inferences more hurt-

ful to the defendants that 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 earlier disclaimers of know-

ledge as equivalent to a later explicit

refusal to testify, they also may have

l3a

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 witness stand. What they saw and

heard may have been of substantial assis-

tance to the jury in assessing the truth-

fulness of his grand jury testimony. We

do not hold, however, that this cross-

examination under these difficult circum-

stances was adequate to meet the require-

ments 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, 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.

Itt.

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 conspir-

acy to distribute heroin in violation of

21 U.S.C. § 846. He objects to the im-

position of two successive sentences upon

him, claiming that there was one conspir-

acy 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 conspiracy

Statute 2/ Congress intended to authorize

27 18 U.S.C. § 371

l4a

the imposition of only one sentence,

though any given conspiracy may contem-

plate the commission of more than one

substantive crime. What is required,

however, is that each separate conspiracy

statute be examined to determine the

congressional intent with respect to the

possible imposition of successive sen-

tences. 3/ 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), moditied in 553 F.2d

991. 4/ For the reasons stated by the

Fifth Circuit in Houltin, we think that

in enacting the federal narcotics acts

the Congress regarded conspiracy to import

heroin and conspiracy to distribute heroin

in the United States nor only as separate

offenses but as offenses so compounding

each other that a conspiracy embracing

each should be treated as two separate

conspiracies, warranting the imposition

for successive sentences for violations of

the two separate conspiracy statutes.

IV.

The defendants advanced a number of

3/ Simpson v. United States, v.68.

__, 46 U.S.L.W. 4159 (1978); Gore v. United

States, 357 U.S. 386 (1958).

4/ Accord United States v. Marotta, 518

F.2d 681, 685 (9th Cir. 1975). But see

U. S. v. Honneus, 508 F.2d 566 (lst Cir.

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

Cir. 1973).

15a

other contentions 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. 76-183771838/1839/1840/1841/1842/

1843 (4th Cir. 1978).

l6a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-1837

UNITED STATES OF AMERICA, .

Appellee,

Ve

CALVIN W. WEST,

Appellant.

No. 76-1838

UNITED STATES OF AMERICA,

Appellee,

Vv.

CALVIN W. WEST,

Appellant.

No. 76-1839

UNITED STATES OF AMERICA,

Appellee,

Vv.

CALVIN W. WEST,

Appellant.

17a

No. 76-1840

UNITED STATES OF AMERICA,

Appellee,

Vv.

FLOYD LEE DAVIS,

Appellant.

No. 76-1841

UNITED STATES OF AMERICA,

Appellee,

Vv.

FLOYD LEE DAVIS,

Appellant.

No. 76-1842

UNITED STATES OF AMERICA,

Appellee,

Vv.

CALVIN W. WEST,

) Appellant.

No. 76-1843

UNITED STATES OF AMERICA,

Appellee,

Vv.

JOSEPH LEE DEMPSEY,

Appellant.

ee

18a

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA, AT NORFOLK

John A. MacKenzie, District Judge

Argued Decided

January 14, 1977 February 13, 19728

Before HAYNSWORH, 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 Attor-

ney, Stephen Wainger, Assistant United

States Attorney (William B. Cummings,

United States Attorney on brief) for Ap-

pellee in 76-1837 through 76-1843.

HAYNSWORTH, Chief Judge:

Calvin W. West, Floyd Lee Davis and

Joseph Lee Denpsey appeal their convic-

tions 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

19a

804(b) (5) of the Federal Rules of Evi-

dence and the Confrontation Clause of

the Sixth Amendment. We hold that it was.

The convictions challenged here are

the product of an extensive Druge Enforce-

ment Agency (DEA) investigation in which

Brown played a vital role. Brown volun-

teered 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 moni-

tored Brown's calls to West arranging

heroin deals. It also monitored one

phone call to Davis. On other occasions

it seems that Brown simply notified the

DEA that he had arranged a purchase.

Each time that the DEA agents received

notice that Brown was about to make a pur-

chase, they made arrangements for exten-

sive surveillance. Before each purchase,

DEA agents strip-searched Brown to make

sure that he had no drugs, and they con-

cealed a transmitter on him. They then

searched his vehicle to be sure that it

contained no drugs and gave Brown the

money required for the anticipated pur-

chase.

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

20a

accompanied him to meet Dempsey. 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 every-

thing was all right. Brown then returned

to his car to find 30 capsules of heroin.

Each time, law enforcement officials ob-

served 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 sur-

rendered 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 comvosed a detailed

summary of what had occurred, which Brown

read, corrected and signed. After one of

the 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 defend-

ants.

On March 8, 1976, the defendants and

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 re-

garding his knowledge of the drug traffic

in Virginia's Tidewater area. The govern-

2la

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 her personal use so that he would not

arouse suspicion and jeopardize his cover

by being without funds immediately after

supposedly selling a large amount of

heroin.

‘On March 19 Brown was murdered in a

manner suggestive 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 noti-

fied the defendants, pursuant to Rule

804(b) (5) of the Federal Rules of Evi-

dence, that it intended to introduce

Brown's grand jury testimony at trial.

It agreed to give defense counsel all of

its evidence, including Brown's arrest

record, and transcripts of the tapes of

Brown's conversation» with the defendants.

After a pre-trial hearing, the district

court ruled that the grand jury testimony

22a

was admissible under Rule 804(b) (5) be-

cause, under the circumstances, it was

essential 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 intro-

duced the transcript of Brown's grand jury

testimony, the photographs, an expert on

voice identification and the heroin. It

also played the tapes of Brown's conver-

sations with the defendants. Law enforce-

ment agents testified about their observa-

tion of Brown's activities and corroborated

Brown's highly detailed grand jury testi-

mony. The government sought to introduce

transcripts which it had prepared from the

tapes from Brown's body transmitter. Al-

though the district judge found that the

transcripts were a fair representation of

the tapes 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 chat the dis-

trict judge erred in concluding that the

transcript of Brown's grand jury testi-

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

Rule 804(b) (5) provides:

"(b) Hearsay exceptions. The fol-

lowing are not excluded by the

hearsay rule if he declarant is

unavailable as a ».cness:

23a

kkkkae

"(5) Other exceptions. A state-

ment not specifically covered by

any of the foregoing exceptions

but having equivalent circum-

stantial guarantees of trust-

worthiness, if the court deter-

mines 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 evi-

dence 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). In-

stead, they focus upon the general require-

ment that the statement have “equivalent

circumstantial guarantees of trustworthi-

ness" as statements the admission of which

is authorized by any of the preceding four

paragraphs. They find a lack of trust-

worthiness in Brown's criminal record and

their lack of any opportunity to cross-

examine him. They point to legislative

history indicating that Rule 804(b) (5)

applies only where "exceptional circum-

stances" lend to the extra-judicial state-

ment a degree of trustworthiness equiva-

lent to that of evidence admissible

under other § 804(b) exceptions.1/

1/The defendants also rely upon United

[footnote continued]

24a

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 o* some of the other

§804(b) hearsay exceptions. Before each

contact by Brown with West, Davis or Demp-

sey, 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 be-

came concealed from their view he was under

constant surveillance, and photographs were.

taken when he was with one of the defend-

ants. Moreover, his transmitter was broad-

casting his conversations with the defend-

ants, and a tape recorder preserved those

conversations. Moreover, immeaiately after

States v. Fiore, 443 F.2d 112 (2d Cir.

1971) in which it was held that grand jury

testimony was inadmissible where the

declarant was physically available but re-

fused to take the oath and submit to

meaningful cross-examination. 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 i316 (admitting

prior grand jury testimony under Rule 804

(b) (5) with United States v. Gonzalez, 559

F.2d 1271 (5th Cir. 1977) (testimony not ad-

missible). Both courts focused for pur-

poses of their analysis of the admissibility

of the evidence under the F.R. Evid. on its

reliability.

25a

each purchase, he and one of the agents

reviewed what Brown had done, said and ob-

served, and a statement of it was prepared

and corrected. The immediate transcrip-

tion and verification of Brown's statements

provide an additional guarantee other ad-

missible hearsay statements lack.2/ But

the most impressive assurance of trust-

worthiness come from the corroboration

provided by the observationsof the agents,

the pictures they took and their record-

ings 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

inconceivable. 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 cor-

roborate and verify his reports, and any

attempted deception 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 cor-

roborative circumstances and verification

procedures lend to his grand jury testi-

mony a degree of trustworthiness probably

substantially exceeding that inherent in

dying declarations, statements against

2/See McCornick Evidence, § 261 at 626

(2d Edition, 1')72).

26a

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 subject to immediate cross-exami-

nation, to a large extent what Brown said

was corroborated by the observations of

the agents. The agents did appear as wit-

nesses and were subject to cross-examina-

tion about what they observed, including

the possibility of mistake or prevarica-

tion by Brown, and their own roles in

preparing Brown's statements. Moreover,

defense counsel had Brown's criminal re-

cord and knew of his interest in gaining

favor with the agents. They could, and

did, present those bases of impeachment

of Brown which might have been developed

on cross-examination if Brown had been

present to testify.

Under all of these circumstances, the

absence of an opportunity to cross-examine

Brown himself is of considerable less

significance than in those cases involving

statements against interest, statements of

family history, or dying declarations.

Whether the circumstantial guarantees

of trustworthiness of Brown's grand jury

testimony are equivalent to those which

arise from cross or direct examination

which underlies the former testimony ex-

ception of § 804(e) (1), we need not

determine. In this unusual case, those

guarantees were probably greater, but

the equivalent guarantee of trustworthi-

ness requirement of § 804(b)(5) is met if

there is equivalency of any one of the

preceding § 804(c) exceptions. Clearly

27a

there is such equivalency with the excep-

tions 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 opportuni-

ties. 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-

‘icted West, Davis and Dempsey suggests

shat it carefully considered the very sub-

stantial extent to which the corroborative

evidence established their guilt, either

directly or through strong demonstration

of the trustworthiness of Brown's testi-

mony as to them.

If.

The contention is earnestly advanced

that even though Brown's grand jury testi-

mony meets the requirements of § 804(b) (5)

of the Federal Rules of Evidence, its ad-

mission was barred by the Confrontation

Clause of the Sixth Amendment. That Clause

provides "In all criminal prosecutions,

the accused shall enjoy the right . .. to

be confronted with the witnesses against

him."

The Supreme Court has consistently held

that the Confrontation Clause itself does

more than to require that the prosecution

produce available witnesses for live testi-

mony. It affirmatively requires the ex-

clusion of extra-judicial statements which

have no badges of reliability. Thus, we

are required to make a separate determina-

tion, focusing upon the Confrontation

Clause itself, whether Brown's grand jury

28a

testimony bore sufficient guarantees of

reliability, Dutton v. -Evans, 400 U.S. 74,

89 (1970), or whether the circumstances

provided the jury with sufficient 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 Con-

frontation Clause does not require the ex-

clusion 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.3/ More recently, statements

against penal interest have been held

admissible,4/ and in California v. Green,

3/Mattox at 151.

4/Chambers v. Mississippi, 410 U.S. 284

(1973); Dutton v. Evans, 400 U.S. 74 (1970).

Though holding such declarations admissi-

ble, 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 Mississippi's

witness voucher rule. He then tendered

three witnesses, close associates of

McDonald's who would have testified that,

[footnote continued]

29a

399 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 sub-

shortly after the slaying, McDonald had

made spontaneous statements to each of .

them, separately, strongly implicating him-

self as the slayer. The testimony was re-

jected, 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 a statement against penal inter-

est. 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 corroborate

the other, the fact there there was an eye-

witness 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 Chambers‘ due process right to

a fair trial. The rejection of the testi-

mony of those witnesses, coupled with the

state's refusal to permit Chambers to

cross-examine McDonald, who had repudi-

ated a formal confession and asserted an

alibi, resulted in the reversal of

Chambers’ conviction for want of a fair

trial.

30a

ject to cross-examination. Testimony at

an earlier trial of a witness unavailable

at the time of the retrial is similarly

admissible, Mancusi 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-examination because

the defendant had no lawyer present, con-

stitutionally may not be admitted under

the Confrontation Clause.5/ The Confronta-

tion 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 coer-

cive circumstances which could 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 con-

sidering the application of the Confronta-

tion Clause to the admission of previously

recorded testimony have distinguished be-

tween testimony subject at the time to

cross-examination and testimony which was

not. When tested by cross-examination,

the testimony gained some added measure

5/Pointer v. Texas, 380 U.S. 400 (1965).

See Barber v. Page, 390 U.S. 719 (1968).

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

3la

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. As it is not as satisfactory

as it is when the trier of fact can ob-

serve the demeanor of the witness, but

evasive answers may still appear evasive

on paper, and forthrightness can be evi-

dent in writing.

The Supreme Court has never intimated,

however, that cross-examination is the

only means by which prior recorded testi-

mony may be qualified for admission under

the Confrontation Clause. Just as sur-

rounding circumstances may give assurance

of reliability to dying declarations and

to declarations against penal interest, so

surrounding circumstances may give as-

surance 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 wit-

ness and the truthfulness of his testi-

mony. 7/

7/Compare United States v. Rogers, 549

F.2d 490, 500 (8th Cir. 1976) (prior testi-

mony 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 reliability

so that admission violated Confrontation

Clause). Both the Rogers and Gonzalez

courts acknowledged that the reliability

[footnote continued]

32a d

Such circumstances are present in

abundant measure here. We have canvassed

them in considering the admissibility of

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

Federal Rules of Evidence. The agents

testified to their preparation of Brown

for each contact with the defendants, to

what they observed during their surveil-

lance, 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. Moreover, the jury

listened to the tapes as well as the writ-

ten 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 Browr's testimony

before the grand jury. it furnished the

jury a firm basis for judging the truth-

fulness of what Brown said before the

grand jury.

of hearsay evidence in part determines

whether admission of the evidence violates

the Confrontation Clause. Each case must

be examined on its 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 Confronta-

tion Clause must begin by focusing on the

reliability and trustworthiness of the

challenged statement.

33a

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 of reli-

ability which warrent 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, re-

jected hearsay declarations involved in

earlier cases were characterized as "de-

vastating" or "crucial". This has led to

the supposition 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, ’ (1971); at least, the

Standard of reliability should be elevated

as the adverse impact of an extra-judicial

declaration increases. We, however, find

no basis for applying such a rule. If

the admission of the declaration is harm-

less, no problem is presented, but faith-

fulness to the constitutional principle

demands the exclusion of all extra-judicial

declarations having no substantial indicia

of realiability if admission of the dec-

laration would have some tendency to per-

suade 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 parti-

cular evidence upon the jury could hardly

provide a workable standard. Here, the

indicia of reliability are great, but we

XN

34a

reject the notion that small indications

of reliability will suffice if the prejudi-

cial effect of the declaration is supposed

to be not great while preserving a stricter

standard for the admission of declarations

seemingly having a1 greater impact.

For these reasons, we find no error in

the admission of Brown's grand jury testi-

mony.

Iil.

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 idertification of West's voice,

which he learned to recognize from frequent

review of the tapes, was sufficient

authenticiation of the tape of October 30,

1975.

Nor did the trial judge abuse his dis-

cretion in permitting the jury to see

transcripts of the tape conversations as

the tapes were being played. The trans-

cripts were fair, though the judge in-

structed the jurors to depend upon their

own hearing of the tapes. United States

v. Hall, 342 F.2d 849, 853 (4 Cir. 1965).

The evidence of the guilt of West and

Davis was more than abundant; that of

Dempsey's guilt was quite adequate.

AFFIRMED.

WIDENER, Circuit Judge, dissenting:

I respectfully dissent.

35a

I.

Initially, I believe that the majority

errs in its estimation 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 Associates, Inc., 556 F2d 725 —

(1977), we held that the affidavit of an

individual who had no interest in the out-

come of the proceedings, and was not an

employee of the company, obtained by an

agent of the National Labor Relations

Board in the ordinary course of his investi-

gation of an unfair labor practice charge,

and offered against the Board by the com-

pany in its defense to the charge, did not

have such equivalent circumstantial guaran-

tees of trustworthiness as to allow its

admission.1/ 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 to

the hearsay rule. Certainly the rule of

exclusion should be at least as broad in

criminal as in civil proceedings.

Il.

I raise again the objections I voiced

1/The opinion refers to the considera-

tion of admission under Federal Rule 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 hear-

say grand jury testimony into evidence. I

see no difference of moment here in the

equivalent guarantees of trustworthiness

under the two rules just cited.

36a

in the dissent in United States v. Payne,

492 F2d 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.2/ Dutton

v. Evans, 400 US 74, at p. 86 (1970).

The majority's treatment of the con-

frontation clause again, as in Payne, re-

duces the constitutional provision to the

status of a mere rule of evidence when,

in fact, the clause was intended to regu-

late 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 confronta-

tion clause is not violated; that because

the circumstances surrounding the testi-

mony, including the corroboration of

Brown's assertions by the federal agents,

indicate 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 conclu-

sion that Brown indeed spoke the truth,

that his testimony was reliable, being

corroborated, and that, the jury having

2/"It seems apparent that the Sixth

Amendment's Confrontation Clause and the

evidentiary hearsay rule stem from the

same roots. But this court has never

equated the two, and we decline to do so

now." Dutton, at p. 86 (footnote omitted).

37a

been presented with sufficient indications

of Brown's sincerity, the defendant's right

of confrontation was not abridged.

This analysis is, however, misplaced. 3/

While it has been said "the mission of the

confrontation clause is to advance a practi-

cal 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 ‘confronta-

tion'” as to satisfy the requirements of

the Constitution's Sixth Amendment. Dutton,

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

Hence, we should not be lured by the pos-

sible reliability of out-of-court state-

ments, important as that is in the con-

sideration of the problem as a rule of evi-

dence, away from the ultimate constitutional

prescription, which is the regulation 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 compel-

led: the introduction of the testimony

was far from being harmless error.

3/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.

38a

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

declarant by the jury or a face-to-face

encounter between the accuser and the ac-

cused 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 ad-

ditional indicia of verity, and persuasive

in its solemnity. 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

arte affidavits, such as were sometimes

a tted 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 oppor-

tunity, not only of testing the recollec-

tion and sifting the conscience of the

witness, but of compelling him to stand

face to face with the j in 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, ise US 237 (1895) (emphasis added).

Hence, the confrontation clause invokes

a means of trial procedure which provides

a minimal, or threshold, level of protec-

tion to the defendant. It expresses our

constitutional condemnation of trial by

affidavit and the concomitant conclusion

39a

that the accuser should appear, person-

aliter, in order that the jury might ob-

serve his demeanor and appearance in the

crucible of courtroom confrontation.

Historically, the rule required the pre-

sence 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 procedural require-

ment, 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 believe that the confrontation clause

prescribes, at a minimum, the presence of

the witness who would testify against the

defendant.

I might have less objection had the

majority taken a reocgnized exception, such

as found in Mattox, and extended its

reasoning to this case. The Mattox deci-

sion, 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 historical foundation of the confronta-

tion clause, such statutes making excep-

tion for the case of a dead witness.4/ Ap-

4/As discussed in Payne, the confronta-

tion requirements of the Constitution seem

[footnote continued]

40a

preciating 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 defendant

with the risk of the witness' safety, it

at least would be true to the meaning and

history of the constitutional provision.

to originate in the reaction to the trea-

son 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 in England remained

toward requiring the proof of treason by

two witnesses. See Bowen, The Lion and

The Throne, p. 195. Thus, the statutes re-

presented a first step in the development

of the rule “requiring the personal pro-

duction of those who had already made a

statement upon oath." V Wi re on Evi-

dence (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 exception 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 say to

prove him guilty. .. ." (Emphasis added)

4lia

However, the majority has not chosen

to follow that alternative and, instead,

I think mistakenly, equates the Constitu-

tion'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

F2d 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 ad-

mission of grand Ta testimony on alter-

native grounds: because it was hearsay

and because its admission would violate

the confrontation clause. 443 F2d 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 confrontation clause. Marbury v.

Madison, 1 Cranch 137 (Feb. Term -

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 tc be no more than the dis-

reputable 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

42a

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 search-

ing exploration into the merits of the case

than a trial, simply because its function

is the more limited one of determining

whether probable cause exists to hold the

accused for 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 confrontation clause with the rules

of evidence, might squarely address that

issue. |

kkkkke

43a

AMENDMENT VI

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

the State and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor, and to have the Assistance

of Counsel for his defense.

44a

UNITED STATES CODE, TITLE 21

§846. ATTEMPT AND CONSPIRACY.

Any person who attempts or conspires to

commit any offense defined in this sub-

chapter is punishable by imprisonment or

fine or both which may not exceed the max-

imum punishment prescribed for the offense,

the commission of which was the object of

the attempt or conspiracy.

§963. ATTEMPT AND CONSPIRACY.

Any person who attempts or conspires to

commit any offense defined in this sub-

chapter is punishable by imprisonment or

fine or both which may not exceed the max-

imum punishment prescribed for the offense,

the commission of which was the object of

the attempt or conspiracy.

45a

Rule 804

HEARSAY EXCEPTIONS; DECLARANT

UNAVAILABLE

xk

(b) HEARSAY EXCEPTIONS. The following

are not excluded by the hearsay rule if

the declarant is unavailable as a witness:

(1) FORMER TESTIMONY. Testimony

given as a witness at another hearing of

the same or a different proceeding, or in

a deposition taken in compliance with the

law in the course of the same or another

proceeding, if the party against whom the

testimony is now offered, or, in a civil

action or proceeding, a predecessor in

interest, had an opportunity and similar

motive to develop the testimony by direct,

cross, Or redirect examination.

(2) STATEMENT UNDER BELIEF OF

IMPENDING DEATH. In a prosecution for

homicide or in a civil action or proceeding,

a statement made by a declarant while

believing that his death was imminent,

concerning the cause or circumstances of

what he believed to be his impending death.

(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 him to civil or

criminal liability, or to render invalid a

claim by him against another, that a rea-

sonable man in his position would not have

made the statement unless he believed it

to be true. A statement tending to expose

the declarant to criminal liability and

46a

offered to exculpate the accused is not

admissible unless corroborating circum-

stances clearly indicate the trustworthi-

ness of the statement.

(4) STATEMENT OF PERSONAL OR

FAMILY HISTORY. (A) A statement concerning

the declarant's own birth, adoption, mar-

riage, divorce, legitimacy, relationship

by blood, adoption, or marriage, ancestry,

or other similar fact of personal or family

history, even though declarant had no means

of acquiring personal knowledge of the

matter stated; or (B) a statement concern-

ing the foregoing matters, and death also,

of another person, if the declarant was

related to the other by blood, adoption,

Or marriage or was so intimately associa-

ted with the other's family as to be

likely to have accurate information con-

cerning the matter declared.

(5) OTHER EXCEPTIONS. A state-

ment not specifically convered by any of

the foregoing exceptions but having equi-

valent circumstantial guarantees of

trustworthiness, if the court determines

that (A) the statement is offered as evi-

dence of a material fact; (B) the state-

ment 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 admis-

sion 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

47a

hearing to provide the adverse party with

a fair opportunity to prepare to meet it,

including the name and address of the de-

clarant.