# Appendix — Everett C. McKethan v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 936

## Text

la
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0960%3A2. Public record. Not legal advice.