# Petition — Garner v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 954

## Text

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" 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

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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

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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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-- Federal Rules of Crimina Procedure,
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(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:
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18 PS Be sam Es 6 6 alk he le ee eee ws e*eeee#ee#eeee##ee##se#*# 6

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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2010%3A1. Public record. Not legal advice.