# Record and brief — Thevis v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2105%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 459 U.S. 825 ## Text bonne Office - Supreme Court, U.S. 81-2073 FILED MAY 10 1992 EX NDER L. STEVAS, CLERK IN THE Supreme Court of the United OCTOBER TERM, 1981 MICHAEL G. THEVIS and GLOBAL INDUSTRIES, INC., Petitioners, V. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT * EDWARD T. M. GARLAND WLan W. TAyLor, III Counsel of Record Counsel of Record STEVEN H. Sapow RONALD R. MASSUMI GARLAND, NUCKOLLS ZUCKERMAN, SPAEDER, TAYLOR & Carrs, P.C. & KOLKER 92 Luckie Street, N. W. 1201 Connecticut Ave., N. W. Atlanta, GA 30303 12th Floor (404) 577-2225 Washington, DC 20036 Counsel for (202) 775-1440 Global Industries, Inc. Bossy LEE Cook Cook & PALMOUR 128 South Commerce Street Summerville, GA 30747 (404) 857-3421 Counsel for Michael G. Thevis „This case was decided by a panel of Unit B of the former Fifth Circuit. WILSON - Eres Printine CO. Inc. - 789-0096 - V/ASHINGTON. D.C. 20001 QUESTIONS PRESENTED FOR REVIEW 1. Whether, when a defendant makes a government witness unavailable, the witness’ out of court statements are admissible regardless of whether they satisfy the reliability tests for hearsay under Rule 804 of the Fed- eral Rules of Evidence. 2. Whether jury instructions which leave the admis- sibility of explosive hearsay evidence in the hands of the jury, and which require the jury to convict on one count in order to use that evidence in considering other counts, thereby generating an added incentive to convict on the first count, create an impermissibly serious doubt about the accuracy of the fact-finding process. 3. Whether, as a matter of due process, a trial court has inherent authority to order immunity for a crucial defense witness who will otherwise invoke his fifth amendment privilege and withhold his testimony. (i) LIST OF PARTIES United States of America Michael G. Thevis Anna Jeannette Evans Alton Bart Hood Global Industries, Inc. STATEMENT PURSUANT TO RULE 28.1 OF THE RULES OF THE SUPREME COURT Petitioner Global Industries, Inc. is now an inactive corporation. Fidelity Equipment Leasing Company, once the parent of Global, is also inactive. TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW. — . ——————— STATEMENT PURSUANT TO RULE 28.1. TABLE OF AUTHORITIES — OPINIONS DELIVERED BELOW W J „„ CONSTITUTIONAL PROVISIONS AND STATUTES .... ä — STATEMENT OF THE CASE REASONS FOR ALLOWING THE WRIT .................. I. II. III. There Is a Division in the Circuits as to Whether, when a Defendant Makes a Govern- ment Witness Unavailable, the Federal Rules of Evidence Have No Application to the Admiasi- bility of the Witness’ Out-of-Court Statemenis.. The Court of Appeals’ Approval of an Instruc- tion That the Jury Could Convict Thevis on Counts One and Two Only If It Found Him Guilty on Count Ten Is Directly Contrary To Controlling Decisions of This Court Whether a District Court Has Authority to Confer Judicial Use Immunity upon a Defense Witness Is an Issue about Which the Circuit Courts Disagree and Should Be Settled by This e 10 10 16 iv | TABLE OF AUTHORITIES Page Beck v. Alabama, 447 U.S. 625 (1980) —................ 20, 21 Brady v. Maryland, 878 U.S. 83 (1963 22 California v. Green, 399 U.S. 149 (1970) 14, 15 Cerda v. United States, 488 F.2d 720 (9th Cir. 1973) Zenn 24 Chambers v. Mississippi, 410 U.S. 284 (1973 14, 15, f 20, 22 Earl v. United States, 367 F.2d 581 (D.C. Cir. 1966) , cert. denied, 388 U.S. 921 (1987) 24 Estelle v. Williams, 425 U.S. 501 (1976) -.............. 20 Government of the Virgin Islands v. Smith, 615 J - 22, 28 Grochulski v. Henderson, 687 F.2d 50 (2d Cir. 1980), cert. denied, 450 U.S. 927 (19817 24 Illinois v. Allen, 397 U.S. 887 (1970 15 In re Daley, 549 F. 2d 469 (7th Cir. 1977) 24 Jackson v. Denno, 378 U.S. 868 (1964) 17, 18, 21 Jackson v. Virginia, 448 U.S. 307 (1979) .............. 20 Mattoz v. United States, 156 U.S. 287 (1895) 14 Morissette v. United States, 342 U.S. 246 (1952) 20 Murphy v. Waterfront Commission of New York, Arr.... ere 2) ae 22 Patterson v. New York, 482 U.S. 197 (1977) 20 22 15 Simmons v. United States, 390 U.S. 377 (1968) Taylor v. United States, 414 U.S. 17 (1978).......... Thompson v. Garrison, 516 F.2d 986 (4th Cir.), cert. denied, 423 U.S. 988 (1975) 24 United States v. Alessio, 528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S. 948 (1976) 24 United States v. Allstate Mortgage Corp., 507 F.2d 492 (7th Cir. 1974 Pe RAED AME FEF 24 United States v. Bailey, 581 F.2d 341 (3d Cir. BATH ibe Serna RR Aaa: Sea aaa Uae il United States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980) 10, 11, 12, 18, 15 United States v. Carlson, 547 F.2d 1846 (8th Cir.. 1976), cert. denied, 481 U.S. 914 (1977) 10, 11 United States v. Chagra, 669 F.2d 241 (5th Cir. 1982) i 23. 24 v TABLE OF AUTHORITIES—Continued Ynited States v. D’Apice, 664 F.2d 75 (5th Cir. 1981) United States v. Davis, 628 F.2d 188 (ist Cir. . United States v. Fiore, 443 F.2d 112 (2d Cir. c — — United States v. Garner, 574 F.2d 1141 (4th Cir. ), cert. denied 489 U.S. 986 (197 United States v. Gonzales, 559 F.2d 1278 (5th Cir. + eR AA Ge IE aa Ris 2 OES Son MERE I ah United States v. Graham, 548 F.2d 1802 (8th Cir. ere eee United States v. Herbst, 641 F.2d 1161 (5th Cir. 1981) United States v. Herman, 589 F.2d 1191 (ad Cir. 1978), cert. denied, 441 U.S. 918 (197999 United States v. Horwitz, 622 F.2d 1101 (2d Cir. 1980), remanding United States v. DePalma, 476 F. Supp. 775 (S. D. N. V. 1979999 United States v. Housand, 550 F.2d 818 (2d Cir. 1977), cert. denied, 481 U.S. 970 (197 United States v. James, 590 F.2d 575 (5th Cir. RRA eS eR es a United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972), cert. denied, 411 U.S. 920 (1973 United States v. Klauber, 611 F.2d 512 (4th Cir. 1979) , cert. denied, 481 U.S. 970 (197) United States v. Lang, 589 F.2d 92 (2d Cir. / Ree SES: Fe Re United States v. Lenz, 616 F.2d 960 (6th Cir.), cert. denied, 447 U.S. 929 (1980) United States v. Morrison, 585 F.2d 223 (3d Cir. / /! United States v. Pacelli, 470 F.2d 67 (2d Cir. 1972), cert. denied, 410 U.S. 988 (1973 U.S. v. Praetorious, 622 F.2d 1054 (2d Cir. 1980), cert. denied, 447 U.S. 869 (1980))ÿ::: United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974), cert. denied, 420 U.S. 982 (197555 Page 11 11 vi TABLE OF AUTHORITIES—Continued Page United States v. Rocco, 587 F.2d 144 (3d Cir. 1 24 United States v. Sarmiento-Peres, 683 F.2d 1092 , — —— 11 United States v. Smith, 542 F.2d 711 (7th Cir. . 24 United States v. Stofsky, 527 F.2d 287 (2d Cir. 1975), cert. denied, 429 U.S. 819 (1976) 24 United States v. Thevis, 665 F.2d 616 (5th Cir. 1 passim United States v. Thevis, 84 F.R.D. 57 (N.D.Ga. FR PERE a RRR a Na RC 1, 6, 12 United States v. Thevis, 84 F.R.D. 47 (N.D.Ga. % 1 United States v. . Thevis, 474 F. Supp. 117 (N. D. enen 1 United States v. Thevis, 414 F. Supp. 134 (N. D. „ eee eee 1 United States v. Turkish, 623 F.2d 769 (2d Cir. 1980), cert. denied, 449 U.S. 1077 (19817 23 United States v. Turner, 475 F. Supp. 194 (E.D. Mich. 1978) c 11 United States v. West, 574 F.2d 1131 (4th Cir. 111% ˙AA—A—A—A — —— 11 United States v. Wright, 588 F.2d 31 (2d Cir. 1978), cert. denied, 440 U.S. 917 (19799 24 Statutes and Other Authorities United States Constitution, Article passim United States Constitution, Article VI —.............. passim , ˙ ..... 5 e . S e 5 . . 5 r EIR oa TES Se 6,12 28 U.S.C. § 1254(1) ot sie 2 Rule 104, Federal Rules of Evidence 8 18 Rule 802, Federal Rules of Evidence ee 2, 13, 14 Rule 804, Federal Rules of Evidence 2, 8, 9, 10, 11, 15 Rule 403, Federal Rules of Eviden eee 9 vii TABLE OF AUTHORITIES—Continued S. Rep. No. 93-1277, 98d Cong., 2d Sess. (1973), reprinted in [1974] U.S. Code Cong. & Ad. .. r 4 Weinstein’s Evidence, Cumulative Supplement 204 (December 1961) Flanagan, Compelled Immunity for Defense Wit- nesses: Hidden Costs and Questions, 56 NOTRE DAME Law. 447 (1981) Mikkeltvedt, United States v. Alessio—Due Proe- ess of Law and Federal Grants of Witness Im- munity for Defense Witnesses, 31 MERCER L. t,, . Remington [Foreword to student notes on Sand- strom v. Montana and Beck v. Alabama], 1981 Wis. L. Rev. 618 (1961) ........................................ Westen, The Compulsory Process Clause, 73 r cities ee Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C.L. REV. 299 a Note, Judicial Immunity for Criminal Defense Witnesses: A Safeguard for the Defendant's Sizth Amendment Right to Compulsory Process, 16 New ENG. L. REV. 481 (198177 Note, Defense Witness Immunity: A Growing Controversy—Government of Virgin Islands v. Smith, 58 TEMPLE L.Q. 1170 (1980) Note, The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv. L. REv. 1266 (1978) a i FS Note, “The Public Has a Claim to Every Man’s Evidence”: Defendant’s Constitutional Right to Witness Immunity, 30 STAN. L. REV. 1211 (1978) Note, Beck v. Alabama: The Right to a Lesser Included Offense Instruction in Capital Cases, 1981 Wis. L. RV. 560 (198172 Note, Separation of Powers and Defense Witness Immunity, 66 Gro. L.J. 51 (1977) Page 14 12 19 viii TABLE OF AUTHORITIES—Continued Page Note, A Re-Ezamination of Defense Witness Im- munity: A New Use for Kastigar, 10 Harv. J. LEGIs. 74 (1972) 25 Note, Right of the Criminal Defendant to the Compelled Testimony of Witnesses, 67 COLUM. L. REv. 953 (1967) 25 INTHE | Supreme Court of the United States OCTOBER TERM, 1981 MICHAEL G. THEVIS and GLOBAL INDUSTRIES, INC., 0 Petitioners, UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT OPINIONS DELIVERED BELOW Published Decisions: United States v. Thevis, 665 F.2d 616 (5th Cir. (1982) United States v. Thevis, 474 F. Supp. 117 (N. D. Ga. 1979) United States v. Thevis, 474 F. Supp. 134 (N. D. Ga. 1979) United States v. Thevis, 84 F. R. D. 47 (N. D. Ga. 1979) United States v. Thevis, 84 F. R. D. 57 (. D. Ga. 1979) Unpublished Decisions: United Statvs v. Thevis, Criminal No. CR 78-180A (N.D.Ga.), Order on Posttrial Motions, December 14, 1979 1 Former Fifth Circuit case, Section 9(1) of Public Law 96-462— October 14, 1980. . JURISDICTION Petitioners seek review of a judgment of the former Fifth Circuit Court of Appeals dated January 11, 1982. Rehearing and rehearing en banc were denied by orders dated March 3, 1982. On March 25, 1982, Circuit Judge Kravitch granted a motion by defendant Anna Jeanette Evans to stay the mandate pending filing and determina- tion of a petition for certiorari in this Court. This Court has jurisdiction under 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS AND STATUTES Article VI of Amendments to the United States Constitution: In all criminal prosecutions, the accused shall en joy the right. . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor Article V of Amendments to the United States Constitution: No person shall . . . be deprived of life, liberty, or property, without due process of law... Rule 802 of the Federal Rules of Evidence: Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Su- preme Court pursuant to statutory authority or by Act of Congress. Rule 804 of the Federal Rules of Evidence: (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declar- ant (2) 22 in refusing te testify concerning subject matter of his statement despite perfor py wg urt to do so; or (3) (4) testifies to a lack of memory of the subject matter of his statement; or is unable to be present or to testify at the hearing because of death or then — physical or mental illness or infirmity . A declarant is not 3 as a witness if his exemption, refusal, claim of lack of memory, in- ability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is un- available as a witness: (1) (2) (3) 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 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 opportu- nity and similar motive to develop the testi- — by direct, cross, or redirect examina- on. 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 cir- cumstances of what he believed to be his impending death. 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 (4) (5) to tending to expose the declarant to criminal liability and offered to exculpate the ac- cused is not admissible unless corroborating circumstances clearly indicate the trust- worthiness of the statement. Statement of personal or family history. — A statement concerning the declarant’s birth, adoption, marriage, divorce, 2 relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring per- sonal knowledge of the matter stated; or (B) a statement concerning 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 in- ‘imately associated with the other’s family a» to be likely to have accurate information concerning the matter declared. Other exceptions. A statement not specif- ically covered by any of the foregoing ex- ceptions but having equivalent circumstan- tial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other 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 admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it — known to the adverse party 5 sufficiently in advance of the trial or hear- ing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. STATEMENT OF THE CASE Petitioner Michael G. Thevis was convicted on Counts One, Two and Ten of a ten-count indictment in the United States District Court for the Northern District of Georgia. Global Industries, Inc. was convicted on Counts One and Two. li was not charged in Count Ten. Count One alleged that Thevis, Global and others committed acts of racketeering in the course of conduct- ing an enterprise, in violation of 18 U.S.C. § 1962(c). Count Two alleged that they conspired to do so, in viola- tion of 18 U.S.C. §1962(d). Count Ten alleged that Thevis, along with Anna Jeanette Evans and Alton Bart Hood, conspired in violation of 18 U.S.C. § 241 to deprive Roger Dean Underhill of his right to be a witness in grand jury and trial proceedings against Thevis and that the conspiracy resulted in the death of Underhill and another.’ A panel of the former Fifth Circuit Court of Appeals affirmed the convictions on January 11, 1982. The panel denied rehearing and the court denied rehearing en banc by orders dated March 3, 1982. The indictment upon which petitioners were tried superseded an earlier indictment. The first indictment was dismissed upon the government’s motion. The sec- end indictment, filed after Underhill’s murder, eliminated some of the defendants originally charged and added 2 Evans and Hood were also convicted and their convictions were affirmed. They have each filed a petition for certiorari with this court. allegations that Thevis killed Underhill. The Underhill murder was included both as an act of racketeering in Counts One and Two and as the substance of Count Ten. The substance of the RICO charges in Counts One and Two was that Thevis, Global and others committed acts of racketeering to advance and protect an associa- tion in fact organized to operate a pornography busi- ness through unlawful means. The acts of racketeering consisted of the murder of two Thevis competitors, Kenneth Hanna and James Mayes, the arson of two buildings belonging to other competitors, and the murder of Underhill to silence him. Roger Underhill had been a Thevis employee and protegee until he became disaffected. He claimed to be a witness to or a participant in the Hanna and Mayes murders as well as the arsons. The trial court correctly observed that he was the “chief architect” of the prose- eution.“ He was expected to be its key witness. Underhill began cooperating with federal agents in January 1977 while on furlough from prison on unre- lated charges. He was then no longer employed by Thevis, and was disaffected. He had in fact filed an action against Thevis seeking treble damages under the civil provisions of RICO, 18 U.S.C. § 1964. When Underhill agreed to cooperate, he was granted immunity. He then underwent a series of interviews, three days of which were tape-recorded and transcribed. He reiterated relevant portions of his interviews before a federal grand jury. The first indictment was returned on June 10, 1978. At that time Thevis was a fugitive, having escaped from federal custody on obscenity charges. At the time of his escape he was being held in an Indi- ana county jail to assure his availability for civil pro- ceedings concerning one of the arsons. United States v. Thevis, 84 F.R.D. 57, 70 (N. D. Ga. 1979). 7 Underhill was killed by gunshots on October 25, 1978, as he was showing property to a potential purchaser. The potential purchaser was also killed. Thevis re- mained a fugitive until November 9, 1978 when he was arrested in Bloomfield, Connecticut, in the company of Jean te Evans. When arrested, Thevis had a copy of the transcript of Underhill's F. B. I. interviews in his possession. That transcript was to assume major sig- nificance in vu. trial on the superseding indictment. The government presented its case in two phases. It proceeded first with its proof on Count Ten of the in- dictment, the Inderhill murder conspiracy. In its proof on that count, the government was permitted, over ob- jection, to introduce the entire transcript of Underhill’s conversations with the F.B.I. The court permitted the ju.y to read the entire tran- script even though most of it did not concern the charges in the indictment. In his conversations with the agents, Underhill had ranged well beyond the specific acts of racketeering which would become the original RICO charges. He painted a detailed picture of Thevis as a systematic law violator, thief, and philanderer. Ac- cording to Underhill, Thevis plotted thirteen separate murders and committed numerous assaults, acts of ter- ror, arsons, and bombings. He said that Thevis was a petty thief, an extortionist, a defrauder and a cor- rupter of government officials. He repeatedly volun- teered his opinion that Thevis had Mafia connections, dealt in “hard core pornography,” “messed around” with female office workers, “kept” one woman for years, and procured an abortion for another. According to Under- hill, Thevis’ lawyer described him as a “pathological liar.” The district court instructed the jury that the exhibit was admitted not for its truth but only as it bore on the motive of any individual who had knowledge of it.“ * United States v. Thevis, 665 F.2d 616, 634 (5th Cir. 1982). The government then completed its proof on Count Ten anu proceeded to Counts One and Two. in its proof of the RICO charges, the government offered selected portions of the transcripts, as well as Unéerhill’s grand jury testimony. The court held that thi. evidence, although concededly hearsay, was admissi- bi for its truth under Rule 804 (b) (5) of the Rules of E idence. It found that Underhill’s conversations and graud jury testimony possessed the required indicia of reliability for admission under the? rule.“ It also held that, notwithstanding compliance with Pule 804 (b) (5), admission of the evidence would vio- late petitioners’ rights to confrontation under the sixth amendment, unless the government established by clear and convincing evidence that Thevis had waived that right. It found such a waiver based upon the govern- ment’s proof on Count Ten.“ It instructed the jury that they might consider the selected portions of the tran- script for their truth, notwithstanding the earlier in- structions to consider the entire transcript only on the issue of motive. In its final instructions, it ordered the jury not to consider. the Underhill hearsay unless it found Thevis guilty on Count Ten.“ Prior to trial, petitioners filed a motion requesting the court to order George Thevis, father of Michael Thevis, to testify under court ordered immunity. Peti- tioners proffered, in camera and ex parte, that George Thevis would testify that, on the date and at the time of the Underhill murder, he was with Thevis and Hood at a motel in Atlanta, Georgia. The elder Thevis refused to testify because of potential prosecution for “harbor- ing” his son, who was then an escaped prisoner. The trial court denied this request. Id. at 627. Id. 7 Id, at 647. 9 Petitioners urged a number of errors on appeal. Prin- cipally, they argued that the district court erred in i ons of Underhill’s F.B.I. inter- ury testimony as substantive evi- dence on Counts One and Two and in permitting the jury to receive the entire transcript and to read the multitude of allegations by Underhill about Thevis, all unrelated to the charges at trial. The court of appeals affirmed the district court’s ad- mission of the exhibit in its entirety as an appropriate exercise of discretion under Rule 403 of the Federal Rules of Evidence.* It held that the trial court’s limiting instructions were “easily understandable to the jury,” and that the probative value of the exhibit was at least as strong as the “potential for unfair prejudice.” ® With regard to the admission of selected portions of the Underhill F.B.I. conversations and his grand jury testimony, the court of appeals found it unnecessary to review the district court’s determination that they pos- sessed that exceptional reliability necessary for admis- sion under Rule 804(b)(5). It held that where the evidence demonstrated that a defendant had made a wit- ness unavailable for trial, the defendant waived not only his rights to confrontation under the sixth amendment but also his right to challenge admission of the evidence under the hearsay rules.“ The court of appeals found no error in the district court’s refusal to grant use immunity to the defense witness." Id. at 634-35. Id. 10 Jd. at 627-88. 11 Id. at 638-41. 10 REASONS FOR ALLOWING THE WRIT I. There Is a Division in the Circuits as to Whether, When a Defendant Makes a Government Witness Un- available, the Federal Rules of Evidence Have No Application to the Admissibility of the Witness’ Out- of-Court Statements. Three circuits have now dealt directly with the admis- sibility of hearsay from a declarant made unavailable by acts of a party. Review of those decisions and com- mentary on them discloses widening disagreement. There is obvious confusion as to whether the rule governing statements by unavailable declarants, Rule 804 of the Federal Rules of Evidence, applies at all when a party has made a witness against him unavailable. The Tenth Circuit in United States v. Balano™ and the Fifth Cir- cuit in this case™ hold that making a witness unavail- able waives the right to confrontation and the right to object on hearsay grounds, thus eliminating the need to make any additional determination of reliability as would be required by Rule 804. On the other hand, in United States v. Ca ™ the Eighth Circuit required compliance with the reliability requirement of the rule and a waiver of confrontation rights. This Court should grant the writ to resolve this issue. Petitioners demonstrate below that the Balano-Thevis rule is incorrect and that hearsay from an unavailable declarant must always be tested under Rule 804. If this Court agrees, it should then undertake to resolve the in- creasingly disparate readings of that subsection of the rule most frequently invoked for unavailable government 12618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840 (1980). 18 United States v. Thevis, 665 F.2d 616 (5th Cir. 1982). 4547 F.2d 1346 (8th Cir. 1976), cert. denied, 481 U.S. 914 (1977). The district court in this case followed Carlson in its two- step procedure. 11 witnesses—subsection (b) (5). The decisions are divided on whether and, if so when, the out-of-court testimony of an immunized or cooperating witness can satisfy the “equivalent circumstantial guarantees of trustworthi- ness” required by the rule. The Fourth and Eighth Circuits have construed the rule to admit grand jury testimony of an immunized witness.“ The Fifth Circuit has expressed serious reservations as to whether such testimony ever meets the necessary guarantees of trust- worthiness.” The Third Circuit seems to agree with the Fifth.” Prior to adoption of the Federal Rules of evidence, the Second Circuit held that use of grand jury testimony violated both the hearsay rule and the Confrontation Clause.“ This is an appropriate case to resolve both the conflict between Balano and Carlson and the disarray in the circuits concerning the rigor of the reliability require- ment in Rule 804 (b) (5). In this case, the declarant was an admitted perjurer who had, at different times, told different stories incriminating different people to various law enforcement officers. For the F. B. I. inter- views, he was unsworn. He had financial incentives * 15 United States v. West, 574 F.2d 1181 (4th Cir. 1978); United States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 489 U.S. 936 (1978); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 481 U.S. 941 (1977). 16 Thevis, 665 F.2d at 629; see also United States v. Sarmiento- Perez, 633 F.2d 1092 (5th Cir. 1978); United States v. Gonzales, 559 F.2d 1278 (5th Cir. 1977). 17 United States v. Bailey, 581 F.2d 341, 345 n.4 (3d Cir. 1978) see also United States v. Turner, 475 F. Supp. 194, 198 (E.D. Mich. 1978) ; United States v. Garner, 489 U.S. 936 (1978) (opinion of Justices Stewart and Marshall dissenting from denial of cer- tiorari). 18 United States v. Fiore, 443 F.2d 112 (2d Cir. 1971). 1® Underhill had filed a $5 million civil RICO action against petitioner. Conviction of petitioner on criminal RICO charges 12 and was under pressure from federal agents to incrimi- nate Thevis. There was also evidence that he suffered from paranoid schizophrenia. In a previous case his counsel had sought to defend on the ground of insanity.” The district court noted Underhill's history of perjury, his motives to lie, and the “darker nature of his char- acter.”** It even remarked that Underhill did not ap- pear to have great respect for the truth when it did not serve his purposes.“ It held, nevertheless, that the sanc- tions for lying, perjury and loss of immunity, as well as corroboration of some aspects of his testimony, guaran- teed its trustworthiness. Not surprisingly, the court of appeals chose not to deal with the district court’s endorsement of Underhill’s reliability. Embracing the Balano rule, it avoided the inquiry altogether. That holding was error. The Balano rule has been sharply and correctly criti- cized by the leading commentator on the Federal Rules of Evidence.“ It is nevertheless seductive because, in a simple way, it insures that a defendant who procures the absence of a witness will not profit from his wrong- doing. Its salutary impulse obscures the need for a more careful analysis of the relationship between the rule against hearsay and the Confrontation Clause than the Tenth and Fifth Circuits undertook, however. Those courts fail to account for the different interests protected would have been of enormous benefit to Underhill as petitioner would have been estopped from denying the predicate acts in the civil case. 18 U.S.C. § 1964. See the district court’s discussion of Underhill’s reliability in United States v. Thevis, 84 F.R.D. 57, 64-65 (N.D.Ga. 1979). 21 Jd. at 64. * Id. 234 Weinstein’s Evidence, Cumulative Supplement 204 (Decem- ber 1981). 13 by the two principles and for the different consequences to a trial when they are not applied. Unless corrected, the Balano-Thevis rule will produce mischief far out of proportion to the evil at which it is directed. The Balano-Thevis rule provides that once the govern- ment proves a defendant made a witness unavailable, the witness’ hearsay testimony, in whatever form, is ad- missible regardless of its reliability.“ Those courts ap- parently are prepared to accept the consequences to the fact-finding process from evidence heretofore too unreli- able to be considered. This is a startling development in the jurisprudence of this country. Neither this Court which drafted the Rules of Evidence nor the Congress which enacted them in- tended or approved such a principle. Rule 804 admits hearsay when declarants are unavailable, by reason of death, intimidation, or otherwise, but it does so under enumerated and limited conditions designed to insure reliability. It does not permit the court to disregard those conditions when the opponent of the evidence caused the witness’ absence. To the contrary, the drafters made it clear, in Rule 802, that the listed exceptions were ex- clusive : Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court The Senate Judiciary Committee explained that Rule 802 expressed Congress’ clear intent. * According to the Thevis court, the trial court may inquire into its reliability only to determine that it is not so “totally un- reliable” as to offend due process. 665 F.2d at 1 definition of “totally unreliable” does not appear, but short of the obvious ravings of a madman, very little is “totally unreliable.” Because the panel explicitly intends to eliminate the reliability inquiry of the rule, it presumably did not intend to revive it by the language in note 17. 14 [T]he Congress must ensure that the (evidence) rule-making process is not delegated to the un- bridled discretion of the courts—-not because of any distrust of the courts but because of the dictates of sound government.” The court of appeals concluded that, Rule 802 notwith- standing, its one-step waiver analysis is justified by the “similarity of interests” underlying the Confrontation Clause and the rule against hearsay. A similarity of interest no doubt exists between these rules, for both con- tribute ultimately to the integrity of the fact-finding process.“ The values protected are, however, quite dif- ferent. The Confrontation Clause insures the right of one placed on trial to require witnesses literally “to confront” him and the jury. This right “forms the core of the values” furthered by the Clause.“ In Mattox v. United States * the Court wrote that the Clause envisions a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Confrontation contributes to the integrity of the fact- finding process, but only as a consequence of securing to the accused the right to compel his accuser to give his evidence in full view of the jury and defendant. A de- 20 8. Rep. No. 93-1277, 93d Cong., 2d Sess. (1973), reprinted in [1974] U.S. Code Cong. & Ad. News 7075, 7079. 2 Chambers v. Mississippi, 410 U.S. 284, 295 (1973), quoting Berger v. California, 393 U.S. 314, 315 (1969). * California v. Green, 399 U.S. 149, 157 (1970). 28 156 U.S. 237, 242-248 (1895). 16 fendant can, therefore, knowingly and intelligently waive this right, by absenting himself from the trial“ or, after warnings, by obstructing the proceedings so as to require his physical removal from the courtroom.” The personal right of a defendant to confront his ac- cuser is waivable by knowing conduct which makes it obviously impossible. It is a different thing altogether to say that unreliable evidence becomes admissible by reason of the defendant’s misconduct prior to trial. This Court has repeatedly observed that the “overlap” between the Clause and the hearsay rule is aot com- plete.* Indeed, evidence may offend the hearsay rule but not the Confrontation Clause.“ In short, the defendant has personal confrontation interests distinct from the judicial interest in excluding evidence so unreliable that it infects the integrity of the fact-finding process. The Balano-Thevis rule fails to recognize that distinction. That rule too. easily equates the defendant’s personal right to confront with the trial court’s duty to examine hearsay under the strictures of Rule 804. Proponents of this rule may assume that a defendant who intimidates a witness implicitly admits the truth of the declarant’s statements and that bypassing the hearsay rule does no harm to the integrity o“ the fact-finding process, or they may feel that an erroneous verdict is an appropriate penalty for the misconduct. Neither is acceptable policy. The variety of human conduct suggests that it is not only . 2 Taylor v. United States, 414 U.S. 17 (1973). % [Uinois v. Allen, 397 U.S. 337 (1970). 1 California v. Green, 399 U.S. 149, 155 (1970) ; see also Cham- bers v. Mississippi, 410 U.S. 284 (1973). * United States v. Pacelli, 470 F.2d 67, 69-70 (2d Cir. 1972), cert. denied 410 U.S. 983 (1973). 16 the guilty who intimidate witnesses“ and that it is not only truthful witnesses who claim to be intimidated. The inquiry into a defendant’s guilt on underlying charges is separate and must be separated from prosecu- tion for making witnesses unavailable. Defendants who engage in such conduct certainly should not profit from it. But society has sanctions for murder and obstruction of justice. The same evidence which supports the findings of waiver will support prosecution for serious crime. Fears that the guilty will go free are unwarranted. II. The Court of Appeals’ Approval of an Instruction That the Jury Could Convict Thevis on Counts One and Two Only If It Found Him Guilty on Count Ten Is Directly Contrary to Controlling Decisions of This Court. In the preceding section, petitioners demonstrated that the court of appeals’ treatment of the relationship be- tween the Confrontation Clause and the rule of evidence designed to insure reliability in the fact-finding process was misguided. In this section, petitioners seek review of the court of appeals’ approval of the manner in which the trial court submitted the Underhill hearsay to the jury. As will be clear, that procedure constituted plain error. In its final instructions, the trial court told the jury to first consider Count Ten, the Underhill-Galanti murder count; then, if they found Thevis guilty of that count, they could consider Underhill’s 302’s and his grand jury statements for their truth as to Counts One and Two, the RICO counts.“ On appeal petitioners argued that this instruction was plain error because it gave the jury 38 Consider the defendant who, outraged at false charges made against him, kills the witness. Society has no interest in convict- ing him on the false charges but a legitimate and strong interest in prosecuting him for murder. * Thevis, 665 F.2d at 647. 17 an artificial incentive to convict on Count Ten.“ “It created the irreparable danger that the jury would be coerced into convicting appellants on Count Ten and would do so using the very evidence whose admissibility it was to decide. In order for the jury legitimately to use the Underhill statements substantively for their truth, the instructions required that they make a putatively independent deter- mination of guilt on Count Ten. In fact, though, it was a practical impossibiilty for the jury to ignore their sub- stance in this context, for they had been told at many points throughout the trial that the same statements were admissible,’ at least conditionally, for both their turth and as evidence of motive. And, recognizing that the statements were crucial to all counts, the jury was subject to a “natural and potent pressure” to arrive at a resolution permitting them free use of the substance of those statements.“ %5 Jd. The Court of Appeals noted correctly that the defendants requested this instruction. But as explained in Joint Reply Brief of Appellants at 6, “[S]Jince the trial court had repeatedly denied their motions to sever count ten... the instruction was the only remaining alternative that might diffuse the devastating prejudice that the defendants were subjected to as a result of the trial of count ten together with counts one and two... That the defend- ants requested this instruction evidences nothing more than a final, albeit unsuccessful, attempt to protect their fundamental right to a fair trial.” 90 Joint Brief of Appellants at 79. * By the time the jury received its final instructions it had be- come intimately familiar with the contents of the Underhill hearsay since it had earlier been admitted in whole on the question whether Thevis, Evans and Hood had a motive to kill Underhill. Excerpts had been admitted also as proof on Counts One and Two, but the jury was told that it should disregard the excerpts sdmitted on these counts if it was unconvinced that Thevis was guilty of the Count Ten conspiracy to murder Underhill. Thevis, 665 F.2d at 647-648. 38 Jackson v. Denno, 378 U.S. 368, 382 (1964). In Jackson v. Denno, a New York procedure which required the court to receive 18 In effect, the ultimate determination of the admis- sibility of the Underhill material was left in the hands of the jury. Since the adoption of Rule 104,“ Fed. R. Evid., however, the federal courts have recognized that the jury should have no role in deciding the admissibility of evidence.” It is precisely because the jury is unable to resist the substance of a piece of testimony in judging its admissibility that this function must be reserved for the judge.“ Leaving the question of admissibility of obviously relevant evidence to the jury “endangers the integrity of the trial because the relevancy and appar- ent probative value of the statements may be so highly prejudicial as to color other evidence even in the mind of a conscientious juror, despite instructions to disregard the statements or to consider them conditionally.” “ Moreover, in this case, without the Underhill state- ments a defendant’s confession and leave to the jury the ultimate deter- mination of its voluntariness was ound constitutionally deficient because the jury's decision or. voluntariness, and hence admissibility, would not be uninfluenced by their impression of the truth or falsity of the confession. 378 U.S. at 379. The procedure, therefore, “did not afford a reliable determination” of the threshold question of admissibility. Id. at 377. In like fashion, in this case the more im- pressed were the jurors by the apparent truthfulness of the Under- hill statements, and the more obvious it was to them that the substantive admissibility of these statements was essential to con- viction, the more likely were they to succumb to the “natural and potent pressure” to make the finding (i.e., guilt on Count Ten) necessary for admissibility. Jd. at 382. Rule 104 states that “Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court. . .” 0 F.., United States v. James, 590 F.2d 575, 580 (5th Cir. 1979) (en banc) (holding admissibility of coconspirator declarations to be determined by judge alone). *1 See Jackson v. Denno, 378 U.S. 368. James, 590 F.2d t 579. 19 the evidence of Thevis’ guilt on counts one and two was flimsy, to say the least. Thus, even if the jury wanted to convict Thevis on counts one and two, it could not do so unless it found him guilty on count ten. It faced an all or nothing deliberation.“ The instructions requiring the jury to render a guilty verdict on the murder conspiracy count as a predicate to use of the irresistibly macabre contents of the Under- hill hearsay in their consideration of the other counts generated a natural, but gravely prejudicial, pressure to convict on Count Ten or else allow the defendant Thevis to go unpunished. When, as here, jury instructions, by virtue of their own internal logic, naturally propel the jury’s deliberative processes ir one direction, the relia- bility of the entire fact-finding process is cast into ques- tion. Recent decisions of this Court manifest its recog- nition of the need to “look carefully at the verdicts sub- mitted to the jury and the instructions given by the trial judge to insure that there is not an impermissibly serious doubt about the accuracy of the fact-finding process.. Reliability of the fact-finding process is, without ques- tion, the central goal of the adversarial system of crim- inal justice. This Court has “repeatedly indicated that it will not tolerate any procedure or occurrence that seri- ously threatens the integrity of the fact-finding process. The function of legal process, the Court has written, is to minimize the risk of erroneous decisions. Where there is actual danger that the jury would convict on the basis of extraneous considerations, failure to provide safe- 43 Joint Brief of Appellants at 80. The Court of Appeals dis- missed this argument as “highly speculative.” Thevis, 665 F.2d at 647. Remington, [Foreword to student notes on Sandstrom v. Montana and Beck v. Alabama], 1981 Wis. L. Rev. 513 (1981). at hand. In Beck, an Alabama statute prohibited the judge from instructing the jury on lesser included of- fenses in a capital case. This statutorily imposed all- or-nothing choice necessarily injected “extraneous fac- tors,” “diverting the jury’s attention from the central issue of whether the state has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty,” and thereby introduced an intolerable “level of uncertainty and unreliability into the fact-finding 47 g Note, Beck v. Alabama: The Right to a Lesser Included Offense Instruction in Capital Cases, 1981 Wis. L. Rev. 560, 576 (1981) (citing Addington v. Teras, 441 1S. 418, 423 (1979) and Taylor v. Kentucky, 436 U.S. 478, 490 (1978)). In the same passage, the author discusses other decisions in which the Court’s holdings were explicitly tied to its “desire to promote the integrity of the fact-finding process,” including Chambers v. Mississippi, 410 U.S. 284 (1978) (invalidating operation of state evidentiary rule when defendant prohibited thereby from presenting crucial exculpatory testimony); Estelle v. Williams, 425 U.S. 501 (1976) (defendant cannot be compelled to stand trial in prison garb); Patterson v. New York, 482 U.S. 197 (1977) (state may not shift burden of persuasion to defendant); Morissette v. United States, 842 U.S. 246 (1952) (prosecution may not prove its case through conclusive presumptions) ; Jackson v. Virginia, 443 U.S. 307 (1979) (claims regarding insufficiency of evidence cognizable on federal habeas corpus). “ 447 US. (1980). * Beck, 447 U.S. at 642-43. The heart of the Court’s reasoning was that the Alabama procedure was constitutionally defective because it interjects irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third 21 In the present case, the instructions to the jury affected. their deliberations in directly comparable fashion. The jury’s understanding of the extraneous consequerices of its verdict on Count Ten could not help but divert its attention from the central issue of proof beyond a reasonable doubt on that charge. Without a conviction on Count Ten, the irresistible contents of the Underhill statements could not be accepted; without a conviction on Count Ten, the jury knew, there would be no punish- ment for the defendants on any charge. The jury instructions in this case are thoroughly suf- fused with the constitutional evils identified by this Court in Jackson v. Denno and Beck v. Alabama, Given the burden on trial courts to safeguard fundamental fair- ness in the face of ever more complex prosecutions under RICO, a statute which seems, by its very nature, destined to add complications to every aspect of the trial process, this Court should grant review of this case in order to provide the lower courts guidance on the proper manage- ment of jury deliberations in complex cases through constitutionally sound instructions. option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished. On the other hand the apparently mandatory nature of the death penalty may encourage it to acquit for an equally impermissible reason—that, whatever his crime, the defendant does not deserve death. In any particular case those two ex- traneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainity and unreliability into the fact- finding process that cannot be tolerated in a capital case. Id. See generally, Note, Beck v. Alabama: The Right to a Lesser Included Offense Instruction in Capital Cases, 1981 Wis. L. REV. 560 (1981) (arguing that the rationale of Beck extends as well to non-capital cases). III. Whether a District Court Has Authority to Confer Judicial Use Immunity Upon a Defense Witness Is an Issue About Which the Circuit Courts Disagree and Should Be Settled by This Court. Prior to trial petitioners filed a motion requesting that the court provide “judicial use immunity” ** for George Thevis, the father of defendant Michael Thevis. The testimony of George Thevis was vital to the defense be- cause it would have provided a first-hand account of the actual whereabouts of Michael Thevis and Alton Hood at the time they were allegedly carrying out the mur- ders of Underhili and Galanti.“ Without George Thevis’ testimony, the defendants’ alibi defense was severely undercut. The pre-trial motion for judicial use immunity for George Thevis was reviewed during trial, in camera and ex parte, with attorneys for the witness present. The defense made a proffer of George Thevis’ expected testi- mony and again advised the court that he would invoke the fifth amendment privilege if called to testify. The trial court rejected the defense request, holding “that it lacked authority to grant immunity to any witness.” © On appeal petitioners argued, principally on the au- thority of Government of the Virgin Islands v. Smith™ and on Supreme Court precedents relied on by the Third Circuit in that case, that a trial court does have inher- ert authority, founded upon the due process right to a 4 United States v. Thevis, 665 F.2d at 638. 0 Brief of Global Industries at 22-24. % United States v. Thevis, 665 F.2d at 638. 51 615 F.2d 964 (3d Cir. 1980). 52 F. g., Chambers v. Mississippi, 410 U.S. 284 (1973); Simmons v. United States, 390 U.S. 377 (1968) ; Murphy v. Waterfront Com- mission of New York, 378 U.S. 52 (1964); Brady v. Maryland, 373 U.S. 83 (1963). fair trial, to confer use immunity upon a witness with essential exculpatory information.“ They argued further that the conditions established in Smith for the granting of judicial use immunity were all met in the present instance.™ The Fifth Circuit panel, after noting the “widely divergent opinions” of the circuit courts on the question of judicially conferred defense witness immunity and the lack of any Supreme Court decision specifically addressing the matter, rejected petitioners’ due process argument.“ The panel concluded that “district courts may not grant immunity to defense witnesses simply because that wit- ness has essential exculpatory information unavailable from other sources.“ In so holding, the court firmiy aligned itself with the Second Circuit’s views in United States v. Turkish." The Turkish opinion was a specific rejoinder to Smith, setting forth the bases for the Second Circuit’s “fundamental disagreement with the standards outlined in that deci- sion.” ** Turkish considered and rejected arguments for defense witness immunity based on both the sixth amend- ment’s Compulsory Process Clause and the fifth amend- ment’s Due Process Clause. The Thevis appeal concerned only due process arguments for defense witness im- munity, but the newly constituted Fifth Circuit has recently, in United States v. Chagra,” held not only 58 Brief of Global Industries at 16-22. Id. at 21-28. 55 Thevis, 665 F. ad at 639. 56 Jd. 57 623 F.2d 769 (2d Cir. 1980), cert. denied, 449 U.S. 1077 (1981). 58 Jd. at 777. 5° 665 F.2d at 638 n.23. ™ 669 F.2d 241 (5th Cir. 1982). 24 that the due process argument is foreclosed in that cir- cuit by Thevis, but also that the compulsory process clause cannot provide an a basis for judicially conferred immunity. The cases mentioned herein are but the most recent chapter in the long-standing controversy over the avail- ability of defense witness immunity.“ The question has attracted an extraordinary amount of attention from commentators, almost all of whom have argued that a right to defense witness immunity inheres in current Id. at 259-60. ' @ See also, United States v. Horwitz, 622 F.2d 1101 (2d Cir. 1980), remanding United States v. DePalma, 476 F. Supp. 775 (S.D.N.Y. 1979) for reconsideration in light of Turkish; United States v. Herbst, 641 F.2d 1161 (5th Cir. 1981); United States v. D’Apice, 664 F.2d 75 (5th Cir. 1981); United States v. Herman, 589 F.2d 1191 (3d Cir. 1978), cert. denied, 441 U.S. 913 (1979); Grochulski v. Henderson, 637 F.2d 50 (2d Cir. 1980), cert. denied, 450 U.S. 927 (1981); United States v. Davis, 623 F.2d 188 (Ist Cir. 1980) ; United States v. Praetorious, 622 F.2d 1054 (2d Cir. 1980), cert, denied, 447 U.S. 869 (1980); United States v. Lenz, 61€ F.2d 960 (6th Cir.), cert. denied, 447 U.S. 929 (1980); United States v. Klauber, 611 F.2d 512 (4th Cir. 1979), cert. denied, 431 United States 970 (1978) ; United States v. Morrison, 535 F.2d 223 (3d Cir. 1976) ; United States v. Lang, 589 F.2d 92 (2d Cir. 1978) ; United States v. Wright, 588 F.2d 31 (2d Cir. 1978), cert. denied, 440 U.S. 917 (1979); United States v. Rocco, 587 F.2d 144 (3d Cir. 1978); United States v. Housand, 550 F.2d 818 (2d Cir. 1977), cert. denied, 431 U.S. 970 (1978); In re Daley, 549 F.2d 469 (7th Cir. 1977); United States v. Graham, 548 F.2d 1302 (8th Cir. 1977); United States v. Smith, 542 F.2d 711 (7th Cir. 1976); United States v. Alessio, 528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S. 948 (1976) ; United States v. Stofsky, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819 (1976); Thompson v. Garrison, 516 F.2d 986 (4th Cir.), cert. denied, 423 U.S. 933 (1975); United States v. Allstate Mortgage Corp., 507 F.2d 492 (7th Cir. 1974); United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974), cert. denied, 420 U.S. 932 (1975); Cerda v. United States, 488 F.2d 720 (9th Cir. 1973); United States v. Jenkins, 470 F.2d 1061 (9th Cir. 1972), cert. denied, 411 U.S. 920 (1973); Earl v. United States, 361 F.2d 531 (D.C. Cir. 1966), cert. denied, 388 U.S. 921 (1967). concepts of due process or may be derived from the Compulsory Process Clause.“ The diversity of views amongst the circuits creates the potential for serious anomalies in the administration of justice. At present, a matter so essential to the truth-finding process as a defendant’s ability to compel testimony by witnesses may turn upon which circuit happens to have jurisdiction of his case. It is easy to imagine opposite results in factually indistinguishable cases simply be- cause in one case immunized exculpatory testimony was admitted, while in the other it was not. The present case provides this court an ideal opportunity to resolve the controversy and to provide authoritative guidance as to whether or when due process requires that use im- munity be conferred upon a defense witness. For the foregoing reasons, the writ should issue. See, e.g., Mikkeltvedt, United States v. Alessio—Due Process of Law and Federal Grants of Witness Immunity for Defense Wit- nesses, 31 MerRcEeR L. Rev. 689 (1980), Note, The Due Process Right to the Immunization of Defense Witnesses, 22 B.C.L. REv. 299 (1981); Westen, The Compulsory Process Clause, 73 Mick. L. Rev. 71 (1974); Note, Judicial Immunity for Criminal Defense Witnesses: A Safeguard for the Defendant's Sixth Amendment Right to Compulsory Process, 16 NEw ENG. L. Rev. 481 (1981), Note, Defense Witness Immunity: A Growing C. ernment of Virgin Islands v. Smith, 53 TEMPLE L.Q. 1170 (1980) ; Note, A Re-Examination of Defense Witness Immunity: A New Use for Kastigar, 10 Harv. J. Lecis. 74 (1972); Note, Right of the Criminal Defendant to the Compelled Testimony of Witnesses, 67 Cotum. L. Rev. 953 (1967); Note, Separation of Powers and De- fense Witness Immunity, 66 Gro. L.J. 51 (1977); Note, “The Public has a Claim to Every Man's Evidence”: Defendant's Constitutional Right to Witness Immunity, 30 STAN. L. Rxv. 1211 (1978); Note, The Sixth Amendment Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv. L. Rev. 1266 (1978); but see, Flanagan, Compelled Immunity for Defense Witnesses: Hidden Costs and Questions, 56 NotrRE DAME Law, 447 (1981) (arguing that defense witness immunity cannot be justified on the basis of due process or the Compulsory Process Clause). CONCLUSION For all of the above reasons, petitioners request that the writ of certiorari be granted. Respectfully submitted, EDWARD T. M. GARLAND WLan W. TAY or, III Counsel of Record Ccunsel of Record STEVEN H. SaDow RONALD R. MASSUMI GARI AND, NUCKOLLS ZUCKERMAN, SPAEDER, TAYLOR & Carrs, P.C. & KoLKER 92 Luckie Street, N.W. 1201 Connecticut Ave., N.W. Atlanta, GA 30303 12th Floor (404) 577-2225 Washington, DC 20036 Counsel for (202) 775-1440 Global Industries, Inc. Bossy LEE Cook Cook & PALMOUR 128 South Commerce Street Summerville, GA 30747 (404) 857-3421 Counsel for Michael G. Thevis May 10, 1982 XIpuaddly 813208 [Sire FILED MAY 10 1962 No. ALEXANDER L. STEVAS IN THE a Supreme Court of the United States OCTOBER TERM, 1981 MICHAEL G. THEVIS and GLOBAL INDUSTRIES, INC., Petitioners, v. UNITFD STATES OF AMERICA, Respondent. APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Epwarp T. M. GARLAND WiruiaM W. Tay or, III Counsel of Record Counsel of Record STEVEN H. Sapow RONALD R. MASSUMI GARLAND, NUCKOLLS ZUCKERMAN, SPAEDER, TAYLOR & Carrs, P.C. & KOLKER 92 Luckie Street, N. W. 1201 Connecticut Ave., N.W. Atlanta, GA 30303 12th Floor (404) 577-2225 Washington, DC 20036 Counsel for (202) 775-1440 Global Industries, Inc. Bossy LEE Cook Cook & PALMOUR 128 South Commerce Street Summerville, GA 30747 (404) 857-3421 Counsel for Michael G. Thevis ———————————————————— on—nX—X— > WILSON - Eres PRINTING Co.. Inc. - 789-0096 - WasHINGTON. D.C. 20001 TABLE OF CONTENTS Page A. Orders Denying Petitions for Rehearing (March 3, 1982) B. United States v. Thevis, 665 F.2d 616 (5th Cir. 1982) 7a C. United States v. Thevis, 84 F. R. D. 57 (N. D. Ga. 1979) 67a la '. APPENDIX A UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT OFFICE OF THE CLERK NORMAN E. ZOLLER Tel. 404-221-6187 Clerk FTS-242-6187 56 Forsyth St. N.W. Atlanta, Georgia 30303 March 08, 1982 TO ALL PARTIES BELOW: No. 79-5739 U.S.A. v. MICHAEL G. THEVIS, ET AL. (Dist. Ct. No. CR-78-180-A) This is to advise that an order has this day been entered denying the petition(s) for rehearing. U The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure: Circult Rule 26), the petition() for rehearing en banc has also been denied. No member of the panel nor Judge in regular ac- tive service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure: Eleventh Circuit Rule 26), the petition(s) for rehearing en banc has also been denied. 2a See Rule 41, F.R.A.P., and Eleventh Circuit Rule 27 for issua”ce and stay of the mandate. Very truly yours, NORMAN E. ZOLLER Clerk By: /s/ Angela L. Bickers Deputy Clerk ec: Mr. Bobby Lee Cook Mr. William W. Taylor, III Mr. Edward T. M. Garland Mr. Steven H. Sadow Mr. William Ralph Hill, Jr. Mr. Edward E. Strain, II Ms. Dorothy Y. Kirkley Mr. Craig A. Gillen IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ; No. 79-5739 UNITED STATES OF AMERICA, Plaintiff-Appellee, MICHAEL G. THEVIS, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Georgia ON PETITION FOR REHEARING AND PETITION FOk REHEARING EN BANC (Opinion January 11, 1982, 5 Cir., 197—, —— F.2d ——) (Mar. 3, 1982) Before KRAVITCH and THOMAS A. CLARK, Circuit Judges; THOMAS, Judge. * Former Fifth Circuit Case; (Section 9(1) of Public Law 96- 452—October 14, 1980). ** Honorable Daniel H. Thomas, Senior District Judge, sitting by designation. da PER CURIAM: ’ (Vv) The Petition for Rehearing is DENIED and no pellate Procedure; Local Fifth Circuit Rule 16) the Pe- tition for Rehearing En Banc is DENIED. /s/ (Ilegible) Kravitch United States Circuit Judge 5a IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNIT B No. 79-5739 UNITED STATES OF AMERICA, Plaintiff-A ppeilee, GLOBAL INDUSTRIES, INC., Defendant-A ppellant. Appeal from the United States District Court for the Northern District of Georgia ON PETITION FOR REHEARING (Mar. 3, 1982) Before KRAVITCH and THOMAS A. CLARK, Circuit Judges; THOMAS, Judge * Former Fifth Circuit Case; (Section 9(1) of Public Law 96- 452—October 14, 1980). ** Honorable Daniel H. Thomas, Senior District Judge, sitting by designation. 6a PER CURIAM: IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied. ENTERED FOR THE COURT: /s/ IIllegible] Kravitch United States Circuit Judge Ta ‘UNITED STATES COURT OF APPEALS FIFTH CIRCUIT * UNIT B No. 79-5739 UNITED STATES OF AMERICA, Plaintiff-Appellee, V. MICHAEL G. THEvISs, ALTON BART Hoop, GLOBAL INDUSTRIES, INC., ANNA JEANETTE EVANS, Defendants-Appellants. Jan. 11, 1982 Appeal from the United States District Court for the Northern District of Georgia Before KRAVITCH and THOMAS A. CLARK, Cir- cuit Judges, and THOMAS **, Senior District Judge. KRAVITCH, Circuit Judge. Appellants Michael Thevis and Global Industries, Inc. [Global] were convicted by a jury of violating the Rack- eteer Influenced and Corrupt Organizations Act [RICO], 18 U.S.C. § 1962. Thevis and appellants Anna Jeanette Evans and Alton Bart Hood were convicted of conspiracy to violate the civil rights of Roger Dean Underhill under 18 U.S.C. §241 by preventing him from testifying at trial. All appellants claim that the trial court erred in several evidentiary rulings, chiefly objecting to the trial * Former Fifth Circuit case, Section 9(1) of Public Law 96-452— October 14, 1980. ** The Honorable Daniel H. Thomas, Senior District Judge for the Southern District of Alabama, sitting by designation. court’s admission of Underhill’s grand jury testimony as a hearsay exception under Fed.R.Evid. 804(b) (5) and the trial court’s refusal to grant judicial use immunity to defense witness George Thevis. Appellants also claim that the trial court misconstrued RICO and incorrectly charged the jury; and appellants Thevis, Evans and Hood under 18 U.S.C. § 241 is not a crime. Finally, appellants Evans and Hood claim their trials should have been severed, and the evidence was insufficient to convict them of the conspiracy. For the reasons stated below, we affirm the convictions of all defendants. I. Background The original indictment in this case, filed on June 10, 1978, named Michael G. Thevis, Global Industries, Inc., Fidelity Equipment Leasing Corporation and eight other individuals as defendants. The central allegation was that Thevis and the corporations had conducted an inter- state pornography business through a pattern of rack- eteering activity. Roger Dean Underhill, a principal wit- ness before the grand jury, was named as an unindicted co-conspirator. On October 25, 1979, the grand jury re- turned a superseding indictment which added a charge that Thevis, Jeanette Evans and Bart Hood conspired to murder Underhill in order to prevent his testimony. Seven of the original defendants were not reindicted and their cases were dismissed: Only Counts One, Two and Ten of the indictment are relevant to this appeal. Count One alleged a substantive RICO violation and Count Two alleged conspiracy to violate RICO.2 Count Ten, The court granted Fidelity’s motions for acquittal on all counts, and also granted motions for acquittal by all defendants as to Counts Three through Nine. William Ross Mahar, a Thevis associ- ate who also was named in the superseding indictment, died during trial, and the charges against him were dropped. 2 Counts One and Two named Thevis, Global, Fidelity, and Mahar as defendants. Fidelity was the parent corporation to Global, which in turn was the parent to several of Thevis’ adult entertainment : : i : the charge added by the superseding indictment, alleged a conspiracy among Thevis, Evans, and Hood to deprive Underhill of his civil rights in violation of 18 U.S.C. § 241. The trial lasted approximately eight weeks and produced a voluminous record.* Our recitation of the facts is therefore limited to only those absolutely essen- tial to this appeal. In the 1960’s, Michael Thevis organized and controlled a group of corporations whose principal purpose was the profitable distribution of adult books and films. Under- hill met Thevis in the fall of 1967 and became a Thevis employee. Together, Underhill and Thevis developed a profitable peep-show machine that was manufactured and distributed by two Thevis-controlled corporations, Automatic Enterprises and Cinematics. The government offered evidence as to five separate acts of racketeering in the conduct of this peep-show enterprise. These acts were the murders of two competitors in the adult en- tertainment business, two separate acts of arson against competitors, and the murders of Underhill and a by- stander, Issac Galanti.* The Hanna Murder Kenneth “Jap” Hanna owned several adult book stores in Atlanta. On November 13, 1970, Thevis called Under- hill at 8:30 a.m. and told him to come to work immedi- ately. When Underhill arrived, Thevis stated that he had shot Ken Hanna and left the body in the trunk of corporations, including Cinematics, and Automatic Enterprises. Underhill, Clifford Jennings Wilson, and Jeff Lee were named as unindicted participants in Count One and as unindicted co- conspirators in Count Two. *The record on appeal consisted of 118 volumes comprising nearly 16,000 pages. * Although the Underhill-Galanti murders were predicate acts under the RICO counts, the indictinent did not implicate Global in those murders. Global also was not charged in Count Ten. f ft 5 i ö 1 ty 8 F 5 : u t Ee to the Atlanta airport parking lot and it. Afterwards, Underhill took various steps to dis- of any incriminating evidence, including burning 3 Sa F : 85 i 5 : 8 z E 5 replacing several bloody floor boards in the warehouse. In addition, he bought a welding torch outfit and melted the gun, the trunk lock, Hanna’s car keys, some Mexican coins which had been in Hanna’s possession, and a screw- driver. That night Underhill dumped the melted objects and the bloody boards in the Chattahoochee River. During an interview with the FBI in 1977 Underhill showed agents the spot on the Chattahoochee where he disposed of the melted objects. A government diver found a pan containing melted objects. Analysis of the melted debris revealed two General Motors car keys, some Mexi- can coins, and a screwdriver on which appeared the letters “R”, “D”, and the beginning of either a capital “Ts west or . The Mayes Murder Jimmy Mayes was employed by Thevis and Underhill to build peep shows. Underhill paid Mayes by giving him a percentage of his stock in the peep-show corpora- tions. When Thevis took away half of Underhill’s and Mayes’ shares, Mayes became enraged and threatened to kill Thevis. In December of 1972, Thevis ordered Un- derhill to kill Mayes and gave him a gun for that pur- pose. Underhill had a chance to shoot Mayes one night, but could not pull the trigger. At Thevis’ instruction, Underhill then hired Bill Mahar to do the job. Mahar told Underhill that he was going to kill Mayes by putting a pipe bomb in his truck. The bomb went off just before midnight, and literally blew Mayes to pieces. lla Thevis was at this time in the hospital due to injuries sustained in a motorcycle accident. On the day of the murder, Underhill advised Thevis that the explosion would take place that night. After the explosion, Under- hill went to the scene and found a piece of bone and a gold pin. He showed this evidence to Thevis in the hos- pital; Thevis said n bone into a paperweight. The day after the murder, Thevis in- structed his nephew, Mann Chandler, to give Underhill money from Thevis’ safe to pay Mahar. The Louisville Arson Nat Bailer, a competitor of Cinematics in the peep- show industry, owned a warehouse in Louisville, Ken- tucky. Thevis ordered Underhill to go to Louisville and burn the warehouse. On the weekend of April 27, 1976, Underhill drove to Louisville and, with two Thevis em- ployees, Clifford Wilson and Robert Mitchum, set fire to the warehouse. Returning from Louisville, Under- hill called Thevis and reported their success. The former Mrs. Underhill corroborated Underhill’s out of town trip on April 27, 1970. She also noticed that he was dirty and smokey when he returned and remembered that he wanted to get rid of the clothes he was wearing. The Fayetteville Arson In 1972, Thevis operated an adult bookstore in Fay- etteville, North Carolina. Herman Womack owned a competing bookstore just one block away. Thevis told Underhill to burn down the competitor. On September 19, 1972, Underhill and Mahar drove to Fayetteville and accomplished the arson by drilling a hole in the roof of the building, pouring gasoline down into the interior, and igniting it with a water pistol used as a flame thrower. Afterwards Thevis gave Underhill $1,500 with which he paid Mahar for the successful arson. 12a The Underhill-Galanti Murders Under duress from Thevis, Underhill sold his interest in Cinematics to Thevis in 1971, but remained on Thevis’ payroll (at about $50 per week) until Underhill went to prison in 1974. In 1975 Underhill filed a civil RICO suit against Thevis. While Underhill was in prison, the government sought unsuccessfully to get Underhill's co- operation in its investigation of Thevis. Underhill was paroled in January 1977 without having reached any spe- cific agreement with the government. Following his pa- role, Underhill was granted immunity and began to co- operate. He gave lengthy recorded statements to the FBI in January 1977 and testified before a federal grand jury in May 1977. In June 1977, Underhill visited Thevis in the federal prison in Springfield, Missouri. Underhill wore a shoe mike provided by the FBI and recorded his conversation with Thevis. During this con- versation Underhill told Thevis of his interviews with the FBI and that he had taken and passed a polygraph examination. On April 28, 1978, Thevis escaped from the New Albany, Indiana, jail where he was confined during the trial of a civil case arising from the Louisville arson. Soon after his escape, he contacted defendants Evans and Hood. Jeanette Evans, a real estate agent in Mari- etta, Georgia, was a close personal friend of Thevis. Bart Hood, her cousin, was a detective in the Summer- ville, South Carolina, police department. Evans and Hood assited Thevis in establishing several aliases, in obtain- ing an apartment, a VISA credit card, and safe-deposit boxes. Hood and Evans requested De: iis Bradley, their mu- tual cousin, to make silencers for a .38 caliber pistol. Evans also inquired about a silencer for a 30.06 rifle. Bradley made two silencers; he mailed one to Hood in Summerville on October 20, 1978, and Hood picked up the second silencer late in the afternoon on October 25, Records indicated that Hood was on sick leave from October 9-13, October 16-20 and October 23-25. Hood later told an investigator for credit card companies that he had been in Atlanta with Clarence Feagin (a Thevis alias) on October 25, the date of Underhill’s death. On October 24, 1978, Hood placed a call from the Journey’s End motel in Atlanta to the South Carolina Highway Patrol in order to run a license check on the car being driven by Underhill. Underhill owned an undeveloped tract of land on Riverside Drive in Atlanta. It had an unpaved drive- way, blocked by a gate, which carried visitors quickly out of sight of the main road. At the time of Underhill’s death, this property was for sale. On October 24, Evans went to the office of real estate agent Louis Carter, and asked to see the Fulton County tax maps. Evans first looked for a single-family residence on Riverside Drive, but was unable to locate it because she had the wrong address. Next, Evans asked about the "Underhill prop- erty, claiming she had a prospective purchaser. Carter considered this request odd, because about a year and a half earlier Carter had contacted Evans about this same property. Evans at that time warned Carter not to have anything to do with the Underhill property, explain- ing that Underhill was dangerous and “involved with Michael Thevis’ activities.” On October 21, 1978, Irene Williams, Underhill's fiancee, joined him at an Atlanta motel. Underhill in- tended to enter the Federal Witness Protection Program shortly, but wanted to sell the Riverside Drive property first. Ms. Williams and Underhill spent two days clean- ing up the property. On Wednesday, October 25, Under- hill left Williams at approximately 11:30 a.m. to keep way of the Underhill property. At 11:35 a.m. on October 25, Mrs. Stumminger heard seven or eight “pops,” looked out the window, and saw a black car driving slowly up Riverside Drive. About twenty-five minutes later, a “hysterical” Irene Williams rang her doorbell. Police and FBI agents were summoned to the scene. They found several shotgun shell casings and spent 30.06 shells. Underhill had died from one or more shotgun blasts. Galanti had been killed by gunshot wounds to the head and neck. One wound on his neck was at- tributable to a high-powered rifle, such as a 30.06. At trial the government presented identification tes- timony from two eyewitnesses: Rodney Letchworth, who placed Thevis at the scene of the Underhill-Galanti shoot- ing, and Milton McMurray, who placed Thevis, Evans, and Hood together approximately forty-five minutes after the murders, At approximately 11:30 a.m. on October 25, Letchworth, a retired marine pilot, had driven by the Underhill property and noticed a man standing near the gate. He later identified this individual as Thevis. Mc- Murray, a commercial airline pilot, was a neighbor of Evans. At 12:10 p.m. on October 25, and again about 15-20 minutes later, McMurray observed Evans and two men drive past his yard. At trial, he identified the man in the front seat as Thevis, and the man in the back as Hood. Thevis and Evans were arrested on November 9, 1978 in Bloomfield, Connecticut. A search of their persons 15a and their car yielded firearms, $411,000 in cash, and over one million dollars worth of jewelry. A search of a rental locker in South Windsor, Connecticut disclosed a transcript of interviews the FBI had conducted with Underhill. Fingerprint analysis revealed over 100 of Thevis’ fingerprints and palm prints throughout the transcript and one of Evans’ fingerprints on an inside page of the transcript. Immediately after his arrest, Thevis was confined in a federal prison in Danbury, Connecticut. His cellmate, Bernard McCarthy, testified that Thevis had confessed to the murder of Underhill. According to McCarthy, Thevis told him that he had lured Underhill to his property by breaking the fence down, where he “assassinated” Under- hill and his “bodyguard” with a shotgun. Thevis cx- plained that he killed Underhill because Underhill in- tended to testify against him, and that Underhill was to enter the marshal’s protection service the following Mon- day. Thevis boasted to McCarthy that while a fugitive he had travelled incognito in the Atlanta area, once re- csiving a speeding ticket there. Police later determined, based solely on McCarthy’s information, that Thevis had received such a ticket using the name C. M. Feagin. McCarthy was also able to describe the contents of Thevis’ car at the time Thevis was arrested. II. Challenges to the Indictr-ent A. The Interpretation of RICO Appellants make three separate arguments that the trial court erred in construing RICO. First, they claim that the trial court should have struck the Underhill- Galanti murders from Counts One and Two of the in- dictment (the RICO charges) because the evidence failed to show that Thevis was “associated with” the enterprise at the time of the murders, and because the murders were not acts through which Thevis conducted the affairs of the enterprise. 16a This contention is without merit. As this court noted in United States v. Elliott, 571 F.2d 880, 898 (5th Cir.), 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), proof of association with a RICO enterprise may depend wholly on circumstantial evidence. The record in this case contains such evidence. Although Thevis had purportedly sold his interest in the pornography business to his secretary, Laverne Bowden, for $16 million dollars, the note securing the sale was always in default. Thevis, therefore, could foreclose at any time and regain his interest in the business. Rodney Glen Smith, a cellmate of Thevis in 1977, testified that despite the “sale,” Thevis stated he still “controlled” his pornography em- pire; given the terms of the “sale” and the fact Thevis had contacted Ms. Bowden after his escape from jail in 1978, one could infer that Thevis’ interest in the success of the pornography enterprise continued until the Under- hill murder. The murder itself, moreover, neatly ad- vanced Thevis’ interests in the enterprise. The original indictment in the case sought forfeiture of all the assets of Global and Fidelity under RICO forfeiture provi- sions.“ The Underhill murder was designed to prevent the government’s key witness from testifying at trial, thus imperiling the government’s entire RICO case and preventing both RICO criminal convictions and forfeiture. The murder, therefore, protected the integrity of the enterprise. Keeping the enterprise together was inex- tricably tied to furthering its business; hence the Under- hill murder was a proper predicate act under § 1962. See United States v. Welch, 656 F.2d 1039, 1060-62 (5th Cir. 1981) (predicate acts only required to have sufficient nexus with enterprise to be properly charged under RICO). ts’ second argument is that the term “enter- prise” as used in RICO does not include the specific asso- ciation charged in this case. The RICO definitions sec- 518 U.S.C. § 1963. 17a tion, 18 U.S.C. § 1961, states that an enterprise “includes any individual, partnership, corporation, association, or other legal entity, and any union or other group of indi- viduals associated in fact although not a legal entity ....” Appellants contend that because the indictment described the enterprise as “a group of individuals associated in fact with various corporations,” the enterprise alleged did not fall within the literal bounds of the statutory classifications. We reject this claim. This specific question is one of first impression. We nevertheless are convinced, as was the trial court, United States v. Thevis, 474 F.Supp. 134, 137 (N.D.Ga.1979), that RICO covers the enterprise alleged in this case. Use of the verb “includes” in the statutory definition indi- cates congressional intent not to limit a RICO enterprise to the specific categories listed; rather, the language “reveals that Congress opted for a far broader definition of the word ‘enterprise’.” United States v. Turkette, —— U.S. ——, 101 S.Ct. 2524, 2533-34, 69 LEd.2d 246 (1981). See United States v. Elliott, swpra, at 897 (quot- ing United States v. Hawes, 529 F.2d 472, 479 (5th Cir. 1976) ). Moreover, the House report accompanying RICO stated that “enterprise” included “associations in fact, as well as legally recognized associative entities. Thus infiltration of any associative group by any individual or group capable of holding a property interest can be reached.” House Rep.No.91—1549, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Ad.News 4007, 4032 (emphasis added). Although the term enterprise“ may have some limits,“ the indictment in this case prop- erly alleged an “association in fact” within the scope of § 1961. Appellants’ final argument is that RICO was not in- tended to apply to illegitimate enterprises such as the association alleged here. The Supreme Court has now * Cf. United States v. Mandel, 415 F.2d 997 (D.Md. 1976) (State of Maryland not an “enterprise” ). 18a decided this issue in United States v. Turkette, —— U.S. ——, 101 S. Ct. 2524, 69 L.Ed.2d 246 (1981), holding that RICO applies to both illegitimate and legitimate enter- prises. B. The Charge Under 18 U.S.C. § 241 Count Ten of the indictment charged Thevis, Evans and Hood with violating 18 U.S.C. § 241. That section makes criminal a conspiracy “to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoy- ment f any right or privilege secured to him by the Constitution or laws of the United States The government alleged that Thevis, Evans and Hood had conspired to injure Underhill in the exercise of his right to testify at trial. Appellants urge that this charge failed to state a crime because the right to testify is not one secured by the Constitution or laws of the United States. To support this contention, appellants cite United States v. Sanges, 48 F. 78 (5th Cir. 1891), which specifically held that the right to testify was not one secured by the Constitution or laws of the United States. Although ordi- narily a panel must adhere to prior decisions of this Court, our first duty is to follow the dictates of the United States Supreme Court. We therefore must con- sider whether the Supreme Court’s decision in In Re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1894), overruled Sanges sub silentio. Quarles involved a conspiracy charge under the prede- cessor statute to § 241. The victim of the conspiracy was assaulted for reporting a violation of the federal tax laws to a deputy United States Marshal for the Northern District of Georgia. The Court held that the right to report a crime, although not specifically guaranteed by the Constitution, nonetheless “arose out of the creation and estabiishment by the Constitution itself of a national government, paramount and supreme within its sphere of action.” 158 U.S. at 535-36, 15 S.Ct. at 961. The Court concluded, “It is the duty and right.. . of every citizen, 19a to assist in prosecuting, and in securing the punishment of any breach of the peace of the United States.” Id. at 535, 15 S.Ct. at 960-961 (emphasis added). Thus while Quarles did not specifically address the right to testify, the language and reasoning encompass such a right. Testifying at trial both “assists the prose- cution” and “secures the punishment” of a crime. More- over, as the Second Circuit noted in United States v. Pacelli, 491 F.2d 1108, 1113 (2d Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 49 (1974) (holding that the right to testify is one guaranteed by federal law) : Our federal government has a particular interest in assuring a prospective witness that he or she will be free to respond by attending the trial of a federal indictment as a witness without being prevented from doing so by threats, molestation or force. Otherwise, the foundations of federal justice would be under- mined. See United States v. Smith, 623 F.2d 627 (9th Cir. 1980) ; United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839, 98 S.Ct. 182, 54 L.Ed.2d 102 (1977). See generally, Kimble v. D.J. McDuffy, Inc., 648 F.2d 340 (5th Cir. 1981) (en banc) (interpreting 42 U.S.C. § 1985 (2) as providing a cause of action for racial- or class-based interference with testifying at trial). We conclude, therefore, that Quarles implicitly overruled Sanges, and the Supreme Court’s reasoning con- trols this case. Thus we hold that the right to testify at trial is one secured by the Constitution, and that the conspiracy charged in the indictment properly stated a federal crime. III. The Evidentiary Rulings A. Admission of Underhill’s Grand Jury Testimony Having determined that the charges in the indictment were proper, we proceed to consider appellants’ various evidentiary claims. One of their major contentions is that the trial court erroneously admitted certain tran- scripts of Underhill’s grand jury testimony and FBI in- terviews as substantive evidence of guilt on the RICO charges. The government’s principal witness in the RICO case against Thevis and Global was to be Thevis’ former business associate, Roger Dean Underhill. Following Un- derhill’s murder, the government notified the court and the defendants that pursuant to Fed. R. Evid. 804 (b) (5) ,” it intended to offer portions of Underhill’s grand jury and interviews with the FBI as substantive evidence of Thevis’ guilt under Counts One and Two. The court permitted the government to offer its evidence as to Count Ten first, in order to establish that Thevis was responsible for Underhill’s death and provide a basis for the court to rule on the 804(b) (5) issue. The court then admitted specific portions of Underhill’s testimony as con- 7 Rule 804(b) deals with exceptions to the hearsay rule for state- ments made by a declarant who is now unavailable for trial. The exceptions include former testimony, 804(b) (1); dying declarations, 804(b) (2); statements against interest, 804 (b) (3); and statements of personal or family history, 804 (b) (4). Subsection (b)(5) is the residual exception for the situation in which the declarant is un- available. This subsection reads as follows: (5) Other exceptions.—A statement not specifically covered by any of the foregoing exceptions but having equivalent circum- stantial guarantees of trustworthiness, if the court deter- mines that (A) the statement is offered as evidence of a ma- terial fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the pro- ponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this excep- tion unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant. 21 taining sufficient “circumstantial guarantees of trust- worthiness” as required under Fed.R.Evid. 804 (b) (5). The court also held that although admitting the evidence under Rule 804(b) (5) would have violated Thevis’ con- frontation rights under the sixth amendment, the gov- ernment had established by “clear and convincing” evi- dence that Thevis had caused Underhill’s death; hence, Thevis had waived his confrontation rights. United States v. Thevis, 84 F.R.D. 57 (N.D.Ga.1979). In contending that the trial court erred in admitting the Underhill evidence, appellants make three arguments. First, appellants claim that the evidence did not have the “circumstantial guarantees of trustworthiness” re- quired to meet Rule 804 (b) (5). Appellants also contend that the trial court erred in applying the “clear and con- vincing” standard to the proof of Thevis’ waiver, arguing that the “beyond a reasonable doubt” standard should apply. Finally, appellants argue that even if Thevis waived his confrontation rights, Underhill’s statements were so untrustworthy that their admission violated due process. The issue of admissibility of a witness’ hearsay state- ments in the face of a defendant-caused absence of that witness from trial is a question of first impression in this circuit, although other circuits have faced this prob- lem under slightly different circumstances. In United States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980), the Tenth Circuit confronted a situation in which the defendant had coerced the witness into silence by threatening the witness’ life. The court held that the de- fendant had waived his confrontation rights and without further explanation stated that such a waiver was a fortiori a waiver of any hearsay objection. In United States v. West, 574 F.2d 1131 (4th Cir. 1978), a key gov- ernment witness had been murdered prior to trial, but that murder had not been connected to the defendants. Nevertheless, the Fourth Circuit found that the witness’ grand jury testimony met the reliability standards of 22a Rule 804(b) (5) and was sufficiently trustworthy that its admission did not violate the confrontation clause. Finally, United States v. Carlson, 547 F.2d 1846 (8th Cir. 1976), cert. denied, 481 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), the case the trial court primarily relied on here, involved facts similar to those in Balano. After determining that the witness’ grand jury testi- mony met the standards of Rule 804(b) (5), the Eighth Circuit held that, even assuming admitting the evidence would violate the confrontation clause, the defendant had waived his confrontation rights by intimidating the wit- ness into silence. We reject both the West and Carlson approaches to this issue, based upon our reading of Rule 804(b) (5) and relevant Supreme Court precedent. As to Carlson, we are convinced that Rule 804(b) (5) does not require find- ing a confrontation clause waiver once a court has con- cluded that the proffered evidence has met the reliability standards of the Rule. Both the wording of the Rule and the legislative history indicate that Congress in- See note 7, supra. The Senate Report stated: The proposed Rules of Evidence submitted to Congress contained identical provisions in rules 803 and 804 (which set forth the various hearsay exceptions), admitting any hearsay statement not spe- cifically covered by any of the stated exceptions, if the hearsay statement was found to have “comparable circumstantial guarantees of trustworthiness.” The House deleted these provisions (proposed rules 803(24) and 804(b)(6)[(5)]) as injecting “too much un- certainty” into the law of evidence and impairing the ability of practitioners to prepare for trial. The House felt that rule 102, which directs the courts to construe the Rules of Evidence so as to promote growth and development, would permit sufficient flexibility to admit hearsay evidence in appropriate cases under various fac- tual situations that might arise. We disagree with the total rejection of a residual hearsay excep- tion. While we view rule 102 as being intended to provide for a broader construction and interpretation of these rules, we feel that, without a separate residual provision, the specifically enumer- tended evidence to be admitted under 804(b) (5) only if the reliability of the evidence equals or exceeds that of the other exceptions in Rule 804 (b). The Supreme Court ated exceptions could become tortured beyond any reasonable cir- cumstances which they were intended to include (even if broadly construed). Moreover, these exceptions, while they reflect the most typical and well recognized exceptions to the hearsay rule, may not encompass every situation in which the reliability and appro- priateness of a particular piece of hearsay evidence make clear that it should be heard and considered by the trier of fact. The committee believes that there are certain exceptional cir- cumstances where evidence which is found by a court to have guarantees of trustworthiness equivalent to or exceeding the guarantees reflected by the presently listed exceptions, and to have a high degree of prolativeness and necessity could properly be ad- missible. The case of Dallas County v. Commercial Union Assoc. Co., Ltd., 286 F.2d 388 (5th Cir. 1961) illustrates the point. The issue in that case was whether the tower of the county courthouse collapsed be- cause it was struck by lightning (covered by insurance) or because of structural weakness and deterioration of the structure (not cov- ered). Investigation t the structure revealed the presence of char- coal and charred timbers. In order to show that lightning may not have been the cause of the charring, the insurer offered a copy of a local newspaper published over 50 years earlier containing an unsigned article describing a fire in the courthouse while it was under construction. The Court found that the newspaper did not qualify for admission as a business record or an ancient document and did not fit any other recognized hearsay exception. The court concluded, however, that the article was trustworthy because it was inconceivable that a newspaper reporter in a small town would report a fire in the courthouse if none had occurred. See also United States v. Barbati, 284 F.Supp. 409 (E.D.N.Y. 1968). Because exceptional cases like the Dallas County case may arise in the future, the committee has decided to reinstate a residual exception for rules 803 and 804(b). The committee, however, also agrees with those supporters of the House version who felt that an overly broad residual hearsay exception could emasculate the hearsay rule and the recognized exceptions or vitiate the rationale behind codification of the rules. Therefore, the committee has adopted a residual exception for rules 803 and 804 (b) of much narrower scope and applicability 24a has held that as to two of the other exceptions, dying declarations and prior testimony where cross-examination has already occurred, the reliability of the admitted evi- dence satisfies the confrontation clause. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2540-41, 65 L.Ed.2d 597 (1980) (prior testimony) ; Mattox v. United States, 156 U.S. 237, 243-44, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895) (dying declarations). See also, Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069-70, 13 L.Ed.2d 923 (1965) (citing Mattox for the proposition that the Court has recognized tue admissibility of dying declarations de- spite lack of confrontation). Hence we find that imposing on 804 (b) (5) admissibility the additional condition of a waiver of confrontation rights is contrary to the express than the Supreme Court version. In order to qualify for admission, a hearsay statement not falling within one of the recognized ex- ceptions would have to satisfy at least four conditions. First, it must have “equivalent circumstantial guarantees of trustworthi- ness.” Second, it must be offered as evidence of a material fact. Third, the court must determine that the statement “is more pro- bative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” This requirement is intended to insure that only statements which have high probative value and necessity may qualify for admission under the residual exceptions. Fourth, the court must determine that “the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.” It is intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to ad- mit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b). The residual excep- tions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions. Such major revisions are best accomplished by legislative action. It is intended that in any case in which evidence is sought to be admitted under these subsections, the trial judge will exercise no less care, reflection and caution than the courts did under the common law in establish- ing the now- recognized exceptions to the hearsay rule. S. Rep. No. 93-1277, 93d Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. & Ad.News 7051, 7065-66. 25a wording of the Rule, congressional intent, and Supreme Court precedent.” A more fundamental disagreement with both West and Carlson is the conclusion in those cases that corroborated grand jury testimony in fact meets the reliability stand- ards of Rule 804(b) (5). The Senate Judiciary Commit- tee’s report on the Federal Rules of Evidence stated that the 804(b) (5) residual exception was to be used only rarely, in truly exceptional eireumstances. Corroborated grand jury testimony which for one reason or another is unavailable at trial is neither rare nor exceptional, and in our opinion its general admission under this theory would constitute a “major revision” of the hearsay rule that, as the Senate Judiciary Committee admonished, is for the legislature, not the judiciary. Grand jury testi- mony, although given under oath, is not subjected to the vigorous truth testing of cross-examination, as is prior testimony. Grand jury testimony, moreover, is often given under a grant of immunity which might encourage a wit- ness to “embellish” his story. We need not determine whether grand jury testimony ever meets the stringent reliability standards of Rule 804 (b) (5), however, be- 10 See United States v. Ward, 552 F.2d 1080 (5th Cir.), cert. denied, 484 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1977) (admit- ting in a criminal trial evidence which met the standards of Rule 804(b)(5) without finding a waiver of confrontation rights). 11 See note 9, supra. 12 F. g., compare United States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977) (grand jury testimony not admissible under facts of case) with United States v. Ward, 552 F.2d 1080 (5th Cir.), cert. denied, 434 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1977) (hearsay statements of truck driver to FBI agent admissible where FBI agent had confirmed all the details of the statement and “nothing was uncovered to refute his version of the events”). See also the dissent of Justices Stewart and Marshall from the denial of certi- orari in United States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978) which that grand jury testimony may not meet the re- cause we conclude other grounds support the admission of the Underhill statements. Thus while we agree with the trial court’s application of the “clear and convincing” standard to the admissibility question, we find the evi- dence admissible on a different basis than did the trial court: adopting the Tenth Circuit’s approach in Balano, we hold that Thevis’ waiver of his right to confrontation in these circumstances also constituted a waiver of any hearsay objection. 1. The Constitutional Waiver The sixth amendment to the Constitution provides in part that “in all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him... All parties to this appeal agree that this right may be waived in a proper case. Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). Whether a waiver existed in this case requires analyzing two separate questions: whether a defendant’s murder of a witness for the purpose of preventing his testifying at trial constitutes a valid waiver, and what standard of proof the government must bear in proving that waiver. A waiver of a constitutional right is ordinarliy valid only if there is “an intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A variety of actions by the accused constitute an express waiver of the right to confrontation. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (guilty plea); United States v. Stephens, 609 F.2d 230 (5th Cir. 1980) (stipulations to evidence). The accused, however, may also waive his confrontation rights indirectly, such as by absenting himself from trial, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), or engag- ing in contumacious conduct which requires his removal from the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L.Ed.2d 353 (1970). 27a We conclude that a defendant who causes a witness to be unavailable for trial for the purpose of preventing that witness from testifying also waives his right to confrontation under the Zerbst standard. A defendant who undertakes this conduct realizes that the witness is no longer available and cannot be cross-examined. Hence in such a situation the defendant has intelligently and knowingly waived his confrontation rights. The policy interests underlying the confrontation clause, moreover, mandate this result. We recognize that the right of confrontation is so fundamental to our con- cept of a fair trial that it is a privilege specifically guaranteed by the Constitution. Nevertheless, both Tay- lor and Allen indicate that the right is not absolute, and must give way at times to stronger state interests. Simi- larly, when confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived. The law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him. To per- mit such subversion of a criminal prosecution “would be contrary to public policy, common sense, and the under- lying purpose of the confrontation clause,” United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), and make a mockery of the system of justice that the right was designed to protect. The question of the proper burden of proof to apply to the waiver question presents a more difficult issue. Appellants claim that the “reasonable doubt” standard should apply, relying in part on the Supreme Court de- cision In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) .“ As the Court later noted in Lego . In Winship, a juvenile was adjudged delinquent on the basis of a preponderance of the evidence that he had committed an act which would constitute a crime if he were an adult. The Supreme Court held that such adjudication must be based on the “reason- able doubt” standard. v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), however, Winship “was not concerned with the standards for determining the admissibility of evidence” ; rather, Winship merely affirmed the necessity for the prosecution, in order to secure a conviction, to prove every essential element of the offense beyond a reasonable doubt. Here the trial court’s decision to admit Underhill’s state- ments was purely an evidentiary ruling, not a decision on Thevis’ substantive guilt. Hence we reject appellants’ “reasonable doubt” standard on the basis of the Supreme Court’s analysis in Lego. Because of the intimate association between the right to confrontation and the accuracy of the fact-finding proc- ess, however, we also reject the government’s suggestion that the “preponderance” standard accepted by the Su- preme Court in Lego (to judge the voluntariness of a confession) and United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (to judge whether a warrantless search was consensual) is also adequate to protect confrontation rights. The Supreme Court repeatedly has noted the impor- tance of confrontation rights in testing the reliability of evidence. Indeed, the Court in its most recent confronta- tion clause case declared that the role of confrontation in testing accuracy is so important “that the absence of confrontation at trial calls into question the ultimate in- tegrity of the fact-finding provess.” Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2528, 65 L.Ed.2d 579 (1980) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L.Ed.2d 297 (1973) and Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969)). The Court, moreover, has stated that “a primary interest secured by [the confrontation clause] is the right to cross-examination,” Ohio v. Rob- erts, supra at 63, 100 S.Ct. at 2537 (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed. 2d 934 (1965)), which has been described as “the great- 29a est legal engine ever invented for the discovery of truth.” J. Wigmore, Evidence § 1367 (3d ed. 1940). As we have previously noted: [Tjhe right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps as- sure the “accuracy of the truth-determining process.” It is, indeed, “an essential and fundamental require- ment for the kind of fair trial which is this coun- try’s constitutional goal.” Smith v. Estelle, 569 F.2d 944, 946 (5th Cir. 1978) (quoting Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 85 L.Ed.2d 297 (1973) (citations omitted) ). Where reliability of evidence is a primary concern, the Supreme Couri has conditioned admissibility on the “clear and convincing” standard. The prosecution, for example, must prove by clear and convincing evidence that an in- court identification that follows a tainted identification has a reliable independent basis before the identification can be admitted into evidence. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967) ; Cannon v. Alabama, 558 F.2d 1211, 1218 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). In contrast, judicial determinations of the admissibility of evidence under the exclusionary rule normally do not relate to the reliability of the evi- dence, but instead are aimed at deterring police miscon- duct. Stone v. Powell, 428 U.S. 465, 486-87, 96 S.Ct. 3037, 3048-45, 49 L.Ed.2d 1067 (1976) ; United States v. Brookins, 614 F.2d 1087, 1046-47 (5th Cir. 1980). See Lego v. Twomey, 404 U.S. 477, 484-85 & nn. 12 & 13, 92 S.Ct. 619, 624-25 & nn. 12 & 13, 30 L.Ed.2d 618 (1976) (purpose of voluntariness hearing is not to decide relia- bility of confession). Thus because confrontation rights In Brookins this court noted that reliability of evidence played a secondary role in fifth and sixth amendment suppression hear- are so integral to the accuracy of the fact-finding process and the search for truth, in contrast to the exclusionary . rule, we conclude that the trial court was correct in re- quiring clear and convincing evidence of a waiver of this right. 2. Waiver of the Hearsay Objection In United States v. Balano, 618 F.2d 624 (10th Cir.), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980), the Tenth Cireuit faced a situation in which the defendant had coerced the witness into silence. The court stated that waiver of one’s right to confrontation was a fortiori a waiver of one’s right to raise a hearsay objec- tion. Id. at 626. We agree, basing our decision on an analysis of the interests served by both the confrontation clause and hearsay rule. Although the Supreme Court explicitly has held that the confrontation clause and the hearsay rule are not co- terminous, California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1976), the Court recently has stated that it is a “truism” that both pro- visions protect the same values. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). Both the conf.ontation clause and the hearsay rule seek to balance the need for relevant, probative evidence against the defendant’s interest in testing the accuracy of evi- dence through personal confrontation and cross-examina- tion.“ See id. Cf. Fed.R.Evid. Advisory Committee’s ings. Nevertheless, once a confession, for example, is found vol- untary” and admitted, the defendant may still cross-examine various witnesses concerning the credib.lity of that confession at trial. In contrast, the loss of confrontation rights precludes cross- examination, although we note that in this case the defendants did introduce evidence to impeach Underhill. 146 Of course, an incidental] interest served by the hearsay rule to the extent it excludes unreliable evidence is the integrity of the fact-finding process. Nevertheless, this interest is counterbalanced 3la Note on the Hearsay Problem, quoted in 4 J. Weinstein, Evidence 800-02 to 800-03 (1979). As noted by the Su- preme Court in Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed.2d 409 (1895), the confrontation clause envisions: “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the con- science of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testi- mony whether he is worthy of belief. Similarly, the hearsay rule envisions testimonial evidence given under the ideal conditions of a witness under oath, in the personal presence of the trier of fact, and subject to cross-examination. Advisory Committee Note, supra at 800-02. The reason that the hearsay rule and con- frontation clause are not coterminous is not because the two provisions protect different interests, but because the two may balance the relevant interests differently. Thus a particular hearsay rule may admit evidence which of- fends confrontation rights because the rule favors the need for evidence and its probable reliability over the de- fendant’s confrontational rights. Conversely, a particu- lar hearsay rule may restrict evidence which nevertheless satisfies the confrontation clause because the rule favors increased protection for the defendant. California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970). See Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).** In either case, however, by a concern that in the adversary process each side must develop his own case. If integrity of the judicial process were the over- riding concern with hearsay, we would not permit one to waive the hearsay objection at trial by failing to raise it. 16 In Barber the prosecution introduced at trial in Oklahoma state court a transcript of the testimony of a witness given at a pre- the key interest offsetting the need for evidence is the defendant’s interest in confrontation; if this interest is removed by a waiver of confrontation rights, the balance must necessarily fall in favor of the need for evidence. We hold, therefore, that under the circumstances of this case, Thevis’ waiver of his confrontation rights also acted as a waiver of the right to raise a hearsay objection once the prosecution demonstrated a need for the evidence.“ liminary hearing. The defendant was represented by counsel at the hearing, but counsel did not cross-examine the witness. At the time of trial, the witness was incarcerated in a Texas federal prison and the trial court concluded that his absence from the jurisdiction made the witness “unavailable” under an Oklahoma hearsay rule exception; the court then admitted the transcript. The Supreme Court reversed, holding that admitting the transcript violated the defendant's confrontation rights because the witness was not truly “unavailable.” We have not found a case dealing with the situation in which a hearsay rule offers a criminal defendant greater protection than the confrontation clause. This is not unusual in light of the fact that a criminal defendant who losés at trial would not assert as grounds for appeal that the hearsay rule should have offered him less protection. 17 We wish to emphasize that our resolution of the admissibility of Underhill’s grand jury testimony does not permit wholesale ad- mission of hearsay evidence when a witness is unavailable. Under the approach we adopt, a hearsay statement of a potential witness is admissible only if the government shows, by clear and convincing evidence, that (1) the defendant caused the witness’ unavailability (2) for the purpose of preventing that witness from testifying at trial. Thus hearsay evidence would not be admissible simply be- cause the witness was missing. Moreover, even if the government proved by clear and convincing evidence that the defendant had caused the witness’ absence, the hearsay evidence would still not be admissible until the government proved the second part of the test, ie, that the defendant-caused absence was for the purpose of preventing the witness from testifying. In addition, the “clear and convicing” standard of proof dictates that close cases must be resolved in favor of the defendant. Here, however, the trial court specifically found clear and convincing evidence showing that to pre- vent Underhill from testifying at trial “Thevis and others including defendants Evans and Hood conspired to murder Underhill, and on 33a 8. The Due Process Objection We also reject appellants’ contention that admitting the Underhill testimony, even if otherwise proper, violated due process by permitting a conviction based on un- reliable evidence. While a case may exist in which the evidentiary base is so totally lacking in reliability that a conviction would violate due process, California v. G een, 399 U.S. 149, 163 n.15, 90 S.Ct. 1930, 1938 n.15, 26 L.Ed2d 489 (1970), this is not such a case. Other evi- dence sufficiently corroborated Underhill’s testimony that the trial court concluded that the statements met the stringent reliability standards of Fed.R.Evid. 804(b) (5). While we do not decide if the trial court correctly ruled on the 804(b) (5) issue, we find that the corrobora- tive evidence indicated that Underhill's statements were not “totally lacking” in reliability, and that a conviction based upon this evidence did not violate appellants’ due process rights. B. Claims Under Rule 403 Appellants raise several points which relate to trial court rulings under Fed.R.Evid. 403. Because all these October 25, 1978, the objective of the conspiracy was successfully attained.” United States v. Thevis, 84 F. R. D. 57, 73 (N. D. Ga. 1977). Even when the government meets this two-part test, the trial court should scrutinize the proffered statements to ensure that the evidence is not unreliable. If the evidence appears unreliable, its probative value may well be outweighed by the unfair prejudice resulting from unreliability and should be excluded under rule 403. Moreover, admission of totally unreliable evidence may raise due process objections. See discussion infra. We note that in this case, however, sufficient indicia of reliability existed to avoid rule 403 or due process problems. See Part III A 3 of this opinion, infra, and the summary of corroborative evidence in United States v. Thevis, supra, at 66-68. 18 This corroborative evidence is explained in detail in the trial court’s opinion dealing with the admission of the Underhill state- ments. United States v. Thevis, 84 F.R.D. 57, 66-68 (N.D.Ga. 1979). 34a points involve the same legal principles and standard of review, we will discuss them together. 1. The Standard of Review Under Fed.R.Evid. 403, a trial judge may exclude rele- vant evidence if he finds that the probative value of the evidence is substantially outweighed by the danger of un- fair prejudice to the defendant from admitting the evi- dence. Nevertheless, because it permits a trial court to exclude concededly probative evidence, Rule 403 is an ex- traordinary remedy which should be used sparingly. As this court noted in United States v. McRae, 593 F.2d 700 (5th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 128, 62 L.Ed2d 83 (1979): Relevant evidence is inherently prejudicial; but it is only unfair prejudice substantially outweighing pro- bative. value, which permits exclusion of relevant matter under Rule 403. Unless trials are to be con- ducted on scenarios, on unreal facts tailored and sanitized for the occasion, the application of Rule 403 must be cautious and sparing. Its major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. As to such, Rule 403 is meant to relax the iron rule of relevance, to permit the trial judge to preserve the fairness of the pro- ceedings by exclusion despite its relevance. 593 F.2d at 707 (emphasis original). In making this decision, the trial court has broad discretion which is re- viewable only for abuse. Ramos v. Liberty Mutual Ins. Co., 615 F.2d 334, 340 (5th Cir. 1980), cert. denied, Rucker Company v. Shell Oil Company, 449 U.S. 1112, 101 S.Ct. 921, 66 L.Ed.2d 840 (1981) ; United States v. McRae, supra; Rozier v. Ford Motor Co., 573 F.2d 1332, 1347 (5th Cir. 1978). With this standard as background, we proceed to assess appellants’ numerous claims of error. 2. Exhibit 47 As part of its proof of Count Ten the government in- troduced a transcript of interviews of Underhill taken 35a by FBI agents in January 1977, shortly after Underhill received immunity and agreed to cooperate with the gov- ernment in its investigation of Thevis. In these inter- views, Underhill accused Thevis of plotting several mur- ders and committing numerous assaults, bombings, ex- tortions and arsons. In addition to accusations of specific crimes, Underhill repeatedly speculated that Thevis had Mafia connections and had tried or would try to have him killed. In June 1978, the grand jury returned its first RICO indictment against Thevis. As part of pre-trial discovery for the corporate defendants, and in preparation for a deposition of Underhill, the government provided to de- fense counsel a 363-page copy of Underhill’s tape-recorded FBI interviews. After Thevis was arrested in November 1978 in Connecticut, a search of a nearby rental locker revealed a copy of the Underhill interview. Thevis’ finger- prints appeared on pages throughout the transcript, and one of Evans’ fingerprints was found on an inside page. At trial the government sought to introduce a copy of the Underhill transcript, exhibit 47, as evidence that Thevis knew Underhill was cooperating with the government and therefore had a motive to kill Underhill to prevent him from testifying. Defense counsel objected to the admis- sion of exhibit 47 on the basis of Rule 403. The defense, moreover, offered to stipulate that Thevis knew Underhill was cooperating with the government, thereby rendering admission of exhibit 47 unnecessary. The court rejected defendants’ offer to stipulate and ruled that the exhibit was admissible to show Thevis’ knowledge and motive. In order to avoid the risk that the jury would misuse the evidence, the court gave limiting instructions, both at the time of admission and in the final instructions, that the jury could not consider the exhibit for the truth of its contents; rather, it could only consider the exhibit as it bore upon the motives of those who had knowledge of its contents. and “bad acts” in the interviews were so damning that no jury could have ignored them. Moreover, they contend that their admission was unnecessary in view of the de- fense offer to stipulate to Thevis’ knowledge that Under- hill was a government witness. While appellants concede that exhibit 47 was probative as to Thevis’ knowledge, they vigorously contend that the nature of the statements in the transcript unfairly prejudiced the jury against Thevis, and that this prejudice substantially outweighed any probative value. We disagree. Count Ten alleged that Thevis had con- spired to murder Underhill in order to prevent his testify- ing in the upcoming trial. Government exhibit 47 was highly probative in establishing that Thevis had a motive to kill Underhill. The transcript did more than merely indicate that Underhill was cooperating, perhaps grudg- ingly, with the government in the Thevis investigation; the sweeping nature of the accusations demonstrated that Underhill was willing to “tell all“ to the government. Al- though the potential for unfair prejudice certainly existed, the probative value of the exhibit was at least equally strong. Nor do we find that the defense offer to stipulate to Thevis’ knowledge of Underhill’s cooperation with the gov- ernment obviated the government’s need for this evidence. Had a stipulation carried similar probative weight as the proffered evidence, the potential for unfair prejudice may have warranted exclusion of the exhibit. As noted above, however, the transcript revealed more than the bare fact that Underhill had agreed to cooperate; it indicated that Underhill was furnishing total and voluntary cooperation. At issue was the effect of Underhill’s cooperation on the mind of Thevis; the transcript revealed the extent of Un- derhill’s “doublecross” and provided an explanation for 37a why Thevis chose to murder Underhill to prevent his testifying rather than some less drastic action. The stipu- lation could not have carried the same force in proving motive. As we previously have said: A piece of evidence can have probative value even in the event of an offer to stipulate to the issue on which the evidence is offered. A cold stipulation can deprive a party “of the legitimate moral force of his evi- dence,” 9 Wigmore on Evidence § 2591 at 589 (3rd ed. 1940), and can never fully substitute for tangible, physical evidence or the tes [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2105%3A0. Public record. Not legal advice.