Petition — Garner v. United States

ys

" Gpromes Court, U.

FILED

APR 18 1980

IN THE

(weer ye Ye

eT A Th i oS were

SUPREME COURT OF THE UNITED STA ICHAEL ROCAK, JR., CLERK

October Term, 1979 e

No. 79-1658

EARL A. GARNER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

, TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEONARD S. RUBENSTEIN

HIRSCHKOP & GRAD

108 North Columbus Street

Alexandria, Virginia 22313

(703) 836-6595

STEPHEN W. BRICKER

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

VIRGINIA

1001 East Main Street

Richmond, Virginia 23219

: Attorneys for Petitioner

(i)

TABLE OF CONTENTS

OP INIONS BELOW oeeee7#n3#s3+ee#eee#8e#8#8e8 @ S08 62 29 0'9 © 89.89 08. 0 8 2

JURISDICTION. eeeeeee#eeresePer.nseeeeeeeeeeeteeee @ eee 2

QUESTION PRESENTED ne Oe ee @ec 2 ee ee 8 888 8 0 e 8 8 8's 2

STATUTORY AND CONSTITUTIONAL

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STATEMENT OF THE CASE...-ccecccceccececcecs 3

REASON FOR GRANTING THE WRIT

The Court Should Resolve A Conflict

of Circuits on the Compelling Ques-

tion Whether The Federal Rules Of

Evidence Or The Confrontation Clause

Permit Convictions On Conspiracy

Charges On The Basis Of Grand Jury

Testimony Alone........ CaM ew ele 6u 6) coe 8

ee ee ae ere ae a 6 Ow Oe 6088.6 6 68 eeee#eee 12

APPENDIX:

-- United States v. Garner, 574 F.2d 1141

(Wel Sey Sb & Fae | >: | Se ery

-- United States v. McKethan, Cr.

No. 76-153-A (E.D.Va. Dec. 1l,

ES NE ONESTL TE Sigll SS ne € T. |

-- United States v. McKethan, Cr.

No. 79-6101 (4th Cir. Dec. 3,

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iin Amendment EE SE eS rey i.

= 21 GeBvics ES eae 2

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-- Federal Rules of Evidence,

Rule TG SDL Shee a +7 |

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-- Federal Rules of Crimina Procedure,

Rule I ST te ND ae a yf |

(ii)

TABLE OF AUTHORITIES

Cases:

California v. Green, 399 U.S. 149 (1970)..10

Dutton v. Byvans, 400 U.8..75 CiS7O) . ceccser 8

Elder v. United States, 142 F.2d 199

Ne ee ae be ee.c es 12

Garner v. United States, 574 F.2d

i ew aie eee Uses sa ae ek ee wees 606 6

Mesarosh v. United States, 352 U.S. l

Civ DG) cca eeeeeeeeeeeeeeeeeeeeeeeeeeeeee ll

Nelson v. O'Neil, 402 U.S. 622 (1971)..... 10

United States v. Balano, No. 78-1314

Pee ee ee, 26s ALOT O) . cca t oceweces 10

United States v. Carlson, 547 F.2d

1346 (8th Cir. 1976), cert. denied,

ae eee oe Bien sn 5 5 66 6b bb OO 0 6 a0 10

United States v. Chisum, 436 F.2d 645

¢ 2.) Bb SPR hp & & epee eis SEE Se cy eeeree ery 11

United States v. Fiore, 443 F.2d 112

cir. 1971) eoeeeeeeee oeeeoeeeeeeeeeeee 10

United States v. Gonzales, 559 F.2d

Sears BETTS bt be ee alee ew by 6-60 aa 10

United States v. West, 574 F.2d 1131

er, I a ee ia a la a akin pe bd 66.8 0 9

Williams v. United States, 500 F.2d

Se APE CAs Bt S? 6 6.010% 000-0 Oak ew ae 6s ll

Statutes:

18 WeWats a re e*eee#*es ee eee#see#ee#e#e#e#e#e#@# oye

18 PS Be sam Es 6 6 alk he le ee eee ws e*eeee#ee#eeee##ee##se#*# 6

21 iw uee a a. wide a6 ae ea eoeeee7nroeteene eee 8 @ ne ae

C224)

Statutes, continued:

2h BeB cK GIG Sc ctvcicviavsevecrvcesovecsessece 3

SO TELS. BAe & 0.6 0:0. 60.60 00's 0 Ow WHS FOOSE OOOO 2

Other:

Fed.R.Evidence, 804(b)......cecceceee passim

Sen.Rep.No. 93-1277, 93rd Cong.,

BG BOGS. TASTE) «cv ccescvesetecncnteeues 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

EARL A. GARNER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner Earl A. Garner respect-

fully requests that a Writ of Certiorari issue to

review the decision and judgment of the

United States Court of Appeals for the

Fourth Circuit, which affirmed the dis-

trict court's denial of petitioner's

Motion for a New Trial.

OPINIONS BELOW

The opinion of the Court of Appeals

for the Fourth Circuit on Garner's direct

appeal is reported at 574 F.2d 1141 (4th

Cir. 1978) and is annexed to this Petition

as Appendix A.’ The decision of the dis-

trict court denying Garner's Motion for a

New Trial is not reported and is annexed

as Appendix B. The decision of the Court

of Appeals affirming the district court's

decision, is also not reported, and is

attached as Appendix C.

JURISDICTION

The judgment of the Court of Appeals

for the Fourth Circuit was entered on

January 11, 1980, and a timely petition

for rehearing was denied by the C irt of

Appeals on February 20, 1980. On March 4,

1980, Chief Justice Burger granted Peti-

tioner's Motion for an Enlargement of

Time in which to file this Petition, until

April 19, 1980. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C.

§1254(1).

QUESTION PRESENTED

Whether, under the Confrontation

Clause and the Federal Rules of Evidence,

a lengthy transcript of grand jury testi-

mony of the government's leading witness

mey be introduced substantively against

the defendant in the absence of cross-

examination of the witness, where the

government, after the trial, indicts the

witness for perjury.

STATUTORY AND

CONSTITUTIONAL PROVISIONS

Statutory and Constitutional provi-

sions relevant to this Petition are United

States Constitution, Amendment VI; Rule

804(b) of the Federal Rules of Evidence;

and Rule 33 of the Federal Rules of Civil

Procedure. They are set forth in full in

the Appendix.

STATEMENT OF THE CASE

This Petition raisesaquestion related

to, though in a significantly different

posture from, issues raised in Petitioner's

prior request for review of his conviction

by this Court. Earl Garner was convicted

and sentenced to a thirty year term of

imprisonment almost exclusively on the

basis of the grand jury testimony of a

witness who did not testify at trial and

who was never subjected to cross-examina-

tion. Garner was indicted in the Eastern

District of Virginia along with co-defend-

ant Everett McKethan on two counts of nar-

cotics conspiracy, conspiracy to import

heroin under 21 U.S.C. §963, and conspiracy

to import heroin under 21 U.S.C. §8465. The

indictment charged that in late 1974 and

early 1975 the two defendants were engaged

in a scheme to import heroin into the

United States for purposes of distribution.

In addition, Garner was charged with two

substantive counts of narcotics importa-

tion under 21 U.S.C. §952(a) and 18 U.S.C.

§2.

In order to establish Garner's guilt

on one of the substantive counts of im-

oe

porting heroin from Europe in October

1974, the government introduced the testi-

mony Of one Mary Ann McKee. From her evi-

dence, the jury might have found Garner

guilty of a Single count of narcotics im-

portation. The remainder of the govern-

ment's case against Garner on the two

conspiracy counts, and the foundation for

the introduction of critical documentary

evidence of certain European trips by

Garner, consisted of the grand jury testi-

mony of a man named Warren Robinson. With-

out giving a reason, Robinson refused to

testify at trial, despite warnings from

the court, a grant of immunity, an order

to testify and threats of severe punish-

ment if he did not.

When it became clear that Robi ’

testimony would not be Tobu@unian. the ‘

court Suggested that the government tender

testimony Robinson had given to the grand

jury for admission into evidence, pursuant

to Rule 804(b)(5) of the Federal Rules of

Evidence, the residual hearsay exception

applicable to statements from unavailable

witnesses. The court later offered its

view that Rule 804(b)(5) "obviates or

Supercedes" exceptions (b) (1) through (b)

(4), the traditional hearsay exceptions

for prior testimony subject to cross-

examination, statements against interest

dying declarations and statements of

family or personal history. Before read-

ing the testimony, the court decided that

Robinson's testimony had equivalent guar-

— Simply because it was given under

Robinson had testified before a

grand

jury on January 7, 1976, as part of an

agreement with the government pursuant to

oree

which he was permitted to plead guilty to a

lesser offense arising out of a narcotics

charge which had been brought against him.

His grand jury testimony tended to implicate

Garner and: McKethan in a heroin importation

conspiracy. Over the course of more than

forty transcript pages, Robinson told the

grand jury that he, Garner and McKethan

began a series of five trips in the summer

of 1974 for the purpose of importing heroin

into the United States and selling it in the

Washington area. Yet the testimony was

permeated with leading questions, hearsay,

multiple hearsay, questions lacking a proper

foundation, and other evidentiary infirmities

prohibited at trial but common to grand

jury testimony. Robinson was present on

only two of the five trips about which he

testified, and much of his information came

second and third hand (and never from

Garner). Indeed, the travel documents the

government itself introduced at trial con-

tradicted Robinson in material respects,

especially as to the three trips on which

Robinson was not present.

On the second day of trial, recognizing

the problem the defendants faced without

the opportunity to cross examine Robinson,

the prosecutor expressed serious doubt

about the admissibility of the grand jury

testimony and stated:

. . - I think what we get into

in this area is the question of

due process, and that is that the

evidence must have enough reli-

ability to satisfy the require-

ment that a person can be convict-

ed upon substantial evidence.

The prosecutor accordingly declined to offer

Robinson's grand jury testimony. His de-

Cision, however, was overruled by his superi-

ors, and the government then tendered the

grand jury testimony. The court admitted

the testimony, including all hearsay and

leading questions about all five trips, and

it was read to the jury. The court then

recalled Robinson for "cross-examination"

concerning his grand jury testimony. He

continued to refuse the testify, but did

state that the testimony was a "mistake"

and that the testimony was "untrue."

In reviewing Garner's direct appeal, the

Court of Appeals did not take Robinson's

denials of the truth of his grand jury

testimony at face value. Rather, the Fourth

Circuit interpreted those denials simply as

an effort to avoid testifying:

The [trial] transcript gives

one the general impression not

that the grand jury testimony

was false, but that, whatever

pressures were brought upon him,

the defendant (sic) was unwill-

ing to testify. Garner v. United

States, 574 F.2d at 1143.

The government, however, took a different

view. Subsequent to the resolution of his

direct appeal, and while Garner's Petition

for Writ of Certiorari was pending before

this Court, the government indicted the

witness, Robinson, for perjury under 18

U.S.C. §1623 in connection with his grand

jury testimony and his testimony at Garner's

trial. Robinson eventually entered a plea

of guilty to a related charge of contempt,

in exchange for which perjury charges were

dropped.

Garner brought these facts to this

Court's attention while his original Peti-

tion for a Writ of Certiorari was pending,

and Justice Stewart, joined by Justice

Marshall, considered that perjury indict-

ment in his dissent from the Court's denial

of Certiorari, 439 U.S. 936 (1978). The

lower courts, however, had not had an oppor-

tunity to review the significance of the

perjury indictment. Accordingly, after

this Court denied Garner's Petition, he

filed a motion for a new trial in the dis-

trict court.

Meanwhile, in late 1978, Robinson was

again indicted, this time in the Southern

District of New York, for conduct having

nothing to do with any matters concerning

Garner's trial or the events which led to

it. Count VI of that indictment charged

Robinson with obstruction of justice under

18 0.8.C. $1503 for influencing, intimidating

and impeding a witness in a court and grand

jury of the United wtates.

Garner's Motion for a New Trial was

denied by the District Court on December ll,

1978. That decision was affirmed per curiam

by the Court of Appeals on January 11, 1980,

which held that Garner was attempting to re-

argue an issue previously decided by that

court. It did not address either its prior

interpretation of Robinson's denials of the

truth of his testimony in light of the per-

jury indictment or the New York obstruction

of justice indictment against Robinson.

REASON FOR GRANTING THE WRIT

THE COURT SHOULD RESOLVE A CONFLICT

OF CIRCUITS ON THE COMPELLING QUES-

TION WHETHER THE FEDERAL RULES OF

. EVIDENCE OR THE CONFRONTATION CLAUSE

PERMIT CONVICTIONS ON CONSPIRACY

CHARGES ON THE BASIS OF GRAND JURY

TESTIMONY ALONE

This case raises in a dramatic fashion

one of the fundamental issues of procedural

justice, whether the lack of opportunity to

cross examine the government's leading wit-

ness is tantamount to conviction by a "paper

transcript," Dutton v. Evans, 400 U.S. 74,

87 (1970), or trial by affidavit. It also

presents the question whether a "residual"

hearsay exception contained in the Federal

Rules of evidence may be construed to allow

a criminal conviction on two narcotics

conspiracy counts by hearsay grand jury

testimony alone. These questions, which

have such vast consequences for the adversary

system that they must be answered by this

Court. The factual setting in which those

questions arise -- the use of testimony of

a witness who, after trial, was indicted

for perjury and obstruction of justice --

makes this case a particularly compelling

one for review.

In the past, it was extremely rare

for the government to attempt to introduce

into evidence grand jury testimony of a

witness unavailable for trial. As the

testimony here demonstrates so well, grand

jury testimony is invariably taken in an

atmosphere in which the prosecutor leads

the witness, suggests answers, cajoles and

often coerces. There is no hint of cross-

examination. Hearsay and multiple hearsay

answers are common, even invited by the

prosecutor for investigative reasons.

Finally, it is given out of the defendant's

presence; as Judge Widener observed in dis-

sent in United States v. West, 574 F.2d 1131

(4th Cir. 1978)

[W]e must recognize that a wit-

ness will often make accusations

behind the back of the accused

which he will not repeat to his

face. 574 F.2d at 1141.

For these reasons, its use at trial, except

as a prior inconsistent statement, has long

been forbidden.

Now, however, invoking the residual,

new hearsay exception of the Federal Rules

of Evidence, Fed.R.Evid. 804(b) (5), the

government is attempting with even greater

frequency to admit the evidence. That

narrowly drawn rule permits such statements

to be admitted only if certain conditions

are met. These conditions require that the

statement contain equivalent guarantees of

trustworthiness equivalent to those of tra-

ditional exceptions, that notice of its

proposed use be given to the opposing party,

and that the general purpose of the Rules

of Evidence and the "interests of justice"

will be best served by admission of the

testimony.

The question here is whether the catch-

all exception, with its explicit qualifi-

cations and limitations, and consistent with

the Confrontation Clause, permits the govern-

ment to a conviction through the use of grand

jury testimony when a witness is not avail-

able. The question has received conflicting

10

answers in courts of appeals. Besides

the majorit,’ here, one circuit has held

that Rule 804(b) (5) may permit admission of

a witness' grand jury testimony, United

States v. Carlson, 547 F.2d 1346 (8th Cir.

1976), cert. denied, 413 U.S. 914 (1977).

Another circuit arrived at the opposite

result, suggesting that Rule 804 (b) (5) ‘

rarely, if ever, permits use of grand jury

testimony at trial under these circumstances.

United States v. Gonzales, 559 F.2d 1271

(5th Cir. 1977). Neither of these decisions

reached the Confrontation Clause issue.

On the other hand, the Second Circuit, in

an opinion by Judge Friendly, has held that,

aside from any considerations under applicable

rules of evidence, the admission of the grand

jury testimony of a witness who is not avail-

able for cross-examination either at trial

or at the time the testimony is given is

forbidden by the Confrontation Clause of

the Sixth Amendment. United States v. Fiore,

443 F.2d 112 (2d Cir. 1971). See, California

v. Green, 399 U.S. 149 (1970); Nelson v.

O'Neil, 402 U.S. 622 (1971). Finally, ina

concurring opinion in United States v. Balano,

No. 78-1314 (10th Cir. Dec. 18, 1979), Judge

McKay specifically criticized the Fourth

Circuit's analysis 4 the evidentiary ques-

tions in this case.—’ The legislative history

counsels that Rule 804(b)(5) is intended to be

used "very rarely, in only exceptional cir-

cumstances." Sen. Rept. No. 93-1277, 93rd

Cong., 2d Sess. at 20(1974).

Those conflicts alone would warrant a

1/

— The other two members of the panel

did not reach the question.

11

grant of Certiorari. The issue here, how-

even, is a posture most appropriate to this

court's initial considerationof these issues.

In affirming the district court's denial of

a new trial, the Court of Appeals created an

additional conflict. The Ninth Circuit has

held, even in circumstances in which a wit-

ness has been available to testify, that

the government's subsequent indictment of

a leading witness for his perjury, even in

a different case, requires a new trial.

Unitee States v. Chisum, 436 F.2d 645 (9th

Cir. 1971); Williams v. United States, 500

F.2d 105 (9th Cir. 1974). In those cases,

the government's leading witness pled guilty

to an indictment charging perjury, among

other charges. Relying on Mesarosh v.

United States, 352 U.S. 1 (1956), the Ninth

Circuit held that the defendants' convictig Ss

were tainted and a new trial was required.—

In those cases, of course, the witness was

subject to cross-examination; here, Garner's

conviction was premised on Robinson's un-

cross-examined testimony. Furthermore,

Robinson was not only indicted for perjury

in connection with this case, but later

was indicted for intimidating a witness

2/the district court distinguished

these cases on the ground that Robinson's

denial of the truth of his grand jury testi-

mony was placed before the jury. Udier Rule

104(a) of the Federal Rules of Evidence,

however, the judge must determine questions

relating to the admissibility of evidence,

including trustworthiness under Rule 804.

(b) (5).

12

before a court and grand jury, further

demonstrating the government's view of his

disrespect for the oath he took at the grand

jury. See, Elder v. United States, 142 F.2d

199, 200 (9th Cir. 1944). The decisions of

the Ninth Circuit and the court below here

cannot be reconciled.

Given the conflict in circuits, the

importance of the question presented and

a procedural posture which permits a narrow

ruling on a complex issue, the Court should

grant the Petition.

CONCLUSION

For the foregoing reasons, Petitioner

urges that this Court issue a Petition for

Certiorari to review the decision below.

Respectfully submitted,

LEONARD S. RUBENSTEIN

HIRSCHKOP & GRAD, P.C.

108 North Columbus Street

Post Office Box 1226

Alexandria, Virginia 22313

(703) 836-6595

STEPHEN W. BRICKER

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

VIRGINIA

Heritage Building

1001 East Main Street

Richmond, Virginia 23219

Attorneys for Petitioner.

Date: April 18, 1980

A? FP SHO .I-X

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1222

UNITED STATES OF AMERICA,

Appellee,

Vv.

EARL A. GARNER,

Appellant.

No. 77-1224

UNITED STATES OF AMERICA,

Appellee,

Ve

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.

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 Eurofreand 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 was told by the defendants

of still later trips that they took. On

one of the trips Garner and Robinson were

accompanied by two young women who,

traveling separately on the return trip,

brought the heroin into the United States

concealed in their girdles.

Before Garner and McKethan were brought

to trial, Robinson indicated reluctance to.

testify at trial. This 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 ke 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

ge fone sae &

°

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 gives one the

general impression not that the grand jury

testimony was false but that, whatever

pressures were brought upon him, the

defendant was unwilling to testify, and

particularly unwilling to say anything

which would incriminate either of these

defendants.

There is no explanation of this 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.

II.

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 Carlson's trial be- —

cause, he said, of threats directed to him

by Carlson. That, too, was a drug offense

case. There was substantial circumstantial

corroboration of the grand jury testimony.

Because of that, and a general affirmation

by the witness at trial of his grand jury

testimony, the 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.2qa 1271, the

Fifth Circuit, in another drug offense

case, held that the testimony of the grand

jury witness was inadmissible. There the

grand jury witness had been most reluctant

to testify during his appearance before

the grand jury, apparently torn between

the 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.

Ja

Since we have canvassed this scene in

West, we need not repeat it here. It is

enough to recite that sworn grand jury

testimony may be admitted under Rule 804

(b) (5) when there are substantial 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. Rogers, 549

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

case, Ee os Se ee

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 Hallums, had

accompanied Garner and Robinson to

Amsterdam for the purpose of serving

as couriers. While in Amsterdam, Miss

McKee shared a hotel room with Robinson,

while Miss Hallums shared another nearby

room with Garner. After Garner and

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 alone

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 McKethan was, a part

of the distribution business conducted

jointly by Garner and Robinson for a

1/ 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.

12a

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.

III.

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 in-

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), modified 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, U.S.

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

Ciz. 1973).

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

15a

other contentions of less moment, but we

find no reversible error in any of then.

AFFIRMED.

WIDENER, Circuit Judge, concurring and

dissenting:

While I concur in Parts III and IV of

the opinion, I respectfully dissent to

admitting the grand jury testimony for

the reasons I have expressed in United

States v. Payne, 492 F2d 449 (4th Cir.

1974), and United States v. West, et al.,

Nos. 76-1837/1838/1839/1840/1841/1842/

1843 (4th Cir. 1978).

l6a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF VIRGINIA

(Alexandria Division)

NO. 76-153-A

UNITED STATES OF AMERICA,

Plaintiff,

Vs

EVERETT C. MCKETHAN,

and

EARL A. GARNER,

Defendants.

OPINION AND ORDER

The defendants, who were tried together

before a jury on several counts involving

the importation of heroin into this country

from Europe and who were found guilty on

some counts of the indictment on October 12,

1976, now move the Court for a new trial

pursuant to Rule 33, Fed.R.Crim.P. During

the course of the trial, the Court permitted

the testimony which Warren G. Robinson had

previously given before a grand jury to be

read to the petit jury trying Mr. McKethan

and Mr. Garner. Mr. Robinson also testi-

fied before the petit jury trying Mr. Mc-

Kethan and Mr. Garner. There were dis-

crepancies between the testimony of Mr.

17a

Robinson before the grand jury and before

the petit jury. The United States sub-

sequently sought and received from a later

grand jury an indictment charging Warren G.

Robinson with two counts of perjury and one

count of contempt of court. The contempt

count arose out of Robinson's refusal to

testify fully before the petit jury trying

Mr. McKethan and Mr. Garner in accordance

with the trial judge's instructions. On

July 7, 1978, Mr. Robinson entered a plea

of guilty to the contempt count and the two

perjury counts were dismissed as a result of

a plea bargain between Mr. Robinson and the

united States Attorney.

Mr. McKethan and Mr. Garner now move

this Court to set aside their convictions

on the ground that the testimony of Mr.

Robinson on which the United States relied

is now tainted because the United States

itself has charged in the later indictment

of Mr. Robinson that such testimony was un-

truthful. In support of their position,

the defendants cite Rule 33, Federal Rules

of Criminal Procedure, which permits the

court to grant a new trial if required in

the interests of justice when a motion is

based upon newly discovered evidence. The

defendants further rely upon Elder v. United

States, 142 F.2d 199, 200 (9th Cir. 1944);

United States v. Williams, 500 F.2d 105

(9th Cir. 1974); United States v. Miramon,

443 F.2d 361 (9th Cir. 1971); United States

v. Davis, 442 F.2d 72 (10th Cir. 1971);

United States v. Chisum, 436 F.2d 645 (9th

Cir. 1971); Mesarosh v. United States, 352

U.S. 1 (1956).

The theme running through all of the

cases pertinent to the issue cited by the

18a

defendants is that the United States relied

upon the evidence of a witness who was later

denounced by the United States as being un-

truthful in respect to evidence given con-

cerning the same transaction or similar

transactions about which the witness testi-

fied. The cases cited have vacated con-

victions and have ordered new trials because

of the tainted testimony. This Court easily

distinguishes the case at bar from the

authorities relied upon by the defendants.

In the case at bar, the defendants" motions

to vacate the convictions and for a new

trial on the basis of newly discovered testi-

mony relies on the Government's claim that

the testimony given by Robinson before the

grand jury and given before the petit jury

differed. It is clear that the defendants

are not relying upon newly discovered evi-

dence but are only relying upon an indict-

ment for perjury requested by the United

States and issued by a grand jury. The

fact of the discrepancy in testimony of

Robinson was not discovered subsequent to

the trial of Mr. McKethan and Mr. Garner

as was the case in all of the authorities

cited by the defendants. The petit jury

trying Mr. McKethan and Mr. Garner had

before them for consideration both versions

- Of Mr. Robinson's testimony and thus had

the opportunity to weigh his credibility

and to accept or reject such of that testi-

mony as they felt proper. It is implicit

in all of the cases cited by the defendats

where new trials were awarded that the pur-

pose of the new trial was to give a jury

considering the guilt or innocence of a

defendant an opportunity to weigh the testi-

mony of the accusing witness in light of

19a

his after discovered untruthfulness. The

defendants in this case have already been

tried by a jury aware of the obvious un-

truthfulness of Mr. Robinson in one version

or the other of his testimony. Thus, the

defendants have already had the benefit of

the only relief requested by their motions,

that is, a jury's consideration of the

discrepancies in the accusing witness's

testimony.

For the reasons stated, the motions of

the defendants are DENIED.

ee aR

20a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO. 79-6101

UNITED STATES OF AMERICA,

Appellee,

V.

EVERETT C. MCKETHAN,

Appellant.

NO. 79-6102

UNITED STATES OF AMERICA,

Appellee,

Vv.

EARL A. GARNER,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA, AT ALEXANDRIA

J. Calvitt Clarke, Jr., District Judge

2la

Argued Decided

December 3, 1979 January 11, 1980

Before HAYNSWORTH, Chief Judge, BUTZNER

and FIELD, Circuit Judges

Leonard S. Rubenstein for Appellant Garner;

(Michael McGettigan on brief) for Appellant

McKethan; Karen Rebrovich, Assistant U.S.

Attorney {William B. Cummings, United States

Attorney, Justin W. Williams, Assistant U.S.

Attorney, Leonie M. Brinkema, Assistant U.S.

Attorney on brief) for Appellee.

PER CURIAM:

This is a joint appeal from a denial of

a Rule 33 (newly discovered evidence) motion

for a new trial. In essence, the defendants

are attempting to reargue an issue this

court previously decided adversely to them.

United States v. Garner, 574 F.2d 1141 (4th

Cir. 1978). This attempt to recharacterize

the issue has no merit. There is no newly

discovered evidence. The order of the

district court is affirmed. See United

States v. McKethan, Cr. No. 76-153-A (E.D.

Va. December ll, 1978).

AFFIRMED.

22a

FEDERAL RULES OF CRIMINAL PROCEDURE

Rule 33

NEW TRIAL

The court on motion of a defendant may

grant a new trial to him if required in the

interest of justice. If trial was by the

court without a jury the court on motion of

a defendant for a new trial may vacate the

judgment if entered, take additional testi-

mony and direct the entry of a new judgment.

A motion for a new trial based on the ground

of newly discovered evidence may be made only

before or within two years after final judg-

ment, but if an appeal is pending the court

may grant the motion only on remand of the

case. A motion for a new trial based on

any other grounds shall be made within 7

days after verdict or finding of guilty or

within such further time as the court may

fix during the 7-day period.

23a

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.

24a

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.

25a

Rule 804

HEARSAY EXCEPTIONS; DECLARANT

UNAVAILABLE

x *

(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

26a

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

27a

hearing to provide the adverse party with

a fair opportunity to prepare to meet it,

including the name and address of the de-

Clarant.