Petition for Writ of Certiorari — Ellis v. United States

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91. 1 6 63 — e os

No. ——— | APR 10 1992

QFACE OF THE CLERK

IN THE

Suprene Court of the Wuiied States

OCTOBER TERM, 1991

WILLIAM T. ELLIS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

REX E. LE *

CARTER G. PHILLIPS

LAURA V. FARTHING

KurRT H. JACOBS

JEANNE BOWMAN SZROMBA

SIDLEY & AUSTIN

1722 Eve Street, N.W.

Washington, D.C. 20006

(202) 736-8000

ROBERT M. BASTRESS, JR.

FRANKLIN D. CLECKLEY

West Virginia University

Law Center

University Avenue

Morgantown, WV 26506

(304) 293-5308

Counsel for Petitioner

April 10, 1992 * Counsel of Record

WILSON - Eras PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the admission at trial of the prejudicial hear-

say statements of an accomplice given to investigators

pursuant to a plea agreement violated the Confronta-

tion Clause of the Sixth Amendment.

nN ee TR gE SREP DERE n rn Rep,

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT

REASONS FOR GRANTING THE PETITION

CONCLUSION ucmabieeidoen

(iii)

Page

)

TABLE OF AUTHORITIES

CASES Page

Alford v. United States, 282 U.S. 687 (1931) ........ 9

Bruton v. United States, 391 U.S. 123 (1968) ___ .... 20, 21

California Vv. Green, 399 U.S. 149 (1970) 0.000... 9,16

Caminetti Vv. United States, 242 U.S. 470 (1917). 21

Chambers V. Mississippi, 410 U.S. 284 (1973) ...... 9

Crawford Vv. United States, 212 U.S. 183 (1909) 21

Davis v. Alaska, 415 U.S. 308 (1974) ...................... 9

Delaware V. Van Arsdall, 475 U.S. 673 (1986) 18

Douglas Vv. Alabama, 380 U.S. 415 (1965) _........ 21, 22

Dutton v. Evans, 400 U.S. 74 (1970) —.................. . BE

Giglio Vv. United States, 405 U.S. 150 (1972) ........ 18

Idaho V. Wright, 110 S. Ct. 3139 (1990) _....... passim

Kirby v. United States, 174 U.S. 47 (1899) -............ 8

Lee V. Illinois, 476 U.S. 530 (1986) passim

Mattox v. Uniied States, 156 U.S. 237 (1895) __... 16

Ohio Vv. Roberts, 448 U.S. 56 (1980) .. ne 9,10

Pennsylvania Vv. Ritchie, 480 U.S. 39 (1987) . 8

Pointer Vv. Texas, 380 U.S. 400 (1965) ......... 8,9

United States v. Bailey, 581 F.2d 341 (3d Cir.

1978) OO ES IE OO EN natok ee Ves

United States v. Doerr, 886 F.2d 944 (7th Cir.

1989) 17

United States v. Feldman, 761 F.2d 380. (7th Cir.

| CRITERION ge” Beis ary RE ere rea lo ON in nM 17

United States v. Fisher, 28 M. J. 544 (A. F. C. M.R.

I ck 8s i dsinn Seaham uname idiapadaabdude 22

United States Vv. Garcia. 528 F.2d 580 (5th Cir.),

cert. denied, 426 U.S. 952 and cert. denied, 429

U.S. 898 (1976) ... REA 19

United States Vv. Garcia, 297 F.2d 1413 (7th Cir.

| eR MM ced Se NCE Oona ds RVG emh cD ERO LEE ve Sens 16

United States Vv. Garris. 616 F.2d 626 (2d Cir.),

cert. denied, 447 U.S. 926 (1980) hen ka eae

United States Vv. Gomez-Lemos, 939 F.2d 326 (6th

Cir. 1991) ........ 16, 22

United States Vv. Gonzalez, 559 F. 2d 1271 (5th Cir.

1977) Ae eS Uer ed ee 17

l’nited States v. Love, 592 F.2d 1022 (8th Cir.

| REE ane ead eedeee eseeauae clans 25

TABLE OF AUTHORITIES—Continued

Page

United States v. Panzardi-Lespier, 918 F.2d 313

f: 2 Se | Rees 16

United States v. Patterson, 648 F.2d 625 (9th ror ir.

1981) Seales aicumiaide negate emnedaia teeadareanass conmaianica ames 19

United States v. Petit, 841 F.2d 1546 (11th Cir.),

cert. denied, 487 U.S. 1237 (1988) . Rane 25

United States v. Sanfilippo, 564 F.2d 176 (5th Cir.

5S SR ee en Aa on RDP re A Pek ial 19

United States v. Turner, 475 F. Supp. 194 (E.D.

Mich. 1978) pig viswuinsbabdiusessataunnateaaleeote 17, 18

United States v. Vernor, 902 F.2d 1182 (5th Cir.),

cert. denied, 111 S. Ct. 301 (1990) 16

United States v. Workman, 860 F.2d 140 (4th C ir.

1988), cert. denied, 489 U.S. 1078 (1989) __. 20

White v. Illinois, 112 S. Ct. 736 (1992)... 16

CONSTITUTIONAL PROVISIONS, STATUTES AND

RULES

U.S. Const. amend. VI ........ ' mek oo repeat 2

28 U.S.C. § 1254(1) ............. aa een 2

Fed. R. Evid. 804(b) (5) ....10, 17, 28

OTHER AUTHORITIES

Committee on Federal Criminal Jury Instructions

of the Seventh Circuit, Federal Criminal Jury

Instructions of the Seventh Circuit (1980 ed.) 19

Committee on Model Jury Instructions: Ninth

Circuit, Manual of Model Criminal Jury Instruc-

tions for the Ninth Circuit (1989 ed.) ig

1 E. Devitt & C. Blackmar, Federal Jury Practice

and Instructions (3d ed. 1977) 18

E. Devitt, C. Blackmar & K. O’Malley, Federal Jury

Practice and Instructions: 1991 Cumulative

Supplement (1991) 18

Federal Judicial Center, Pattern Criminal Jury

Instructions (1988 ed.) yar 19

TABLE OF AUTHORITIES—Continued

Page

U.S. Eleventh Circuit District Judges Association,

Pattern Jury Instructions: Criminal Cases

PIII GIING Fo. snccoidsccceceacducosaementndeecaen ease naiaeniae 19

U.S. Fifth Circuit District Judges Association,

Pattern Jury Instructions: Criminal Cases

(1990 ed.) .............. sccecinionhstentasteanialaaeaaeeaaaee aes 19

U.S. Sixth Circuit District Judges Association,

Pattern Criminal Jury Instructions (1991 ed.).. 19

IN THE

Sayre Comet of the United States

OCTOBER TERM, 1991

No.

WILLIAM T. ELLIS,

- Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

William T. Ellis hereby petitions for a writ of cer-

tiorari to review the judgment and opinion of the United

States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

10a) is reported at 951 F.2d 580 (4th Cir. 1991). The

United States District Court for the Southern District

of West Virginia’s memorandum opinion and order, deny-

ing petitioner’s motion for a new trial (App. infra, 1la-

20a} is not reported.

JURISDICTION

The opinion of the court of appeals was entered on

December 12, 1991. On March 3, 1992, the Chief Justice

granted an extension of time to and including April 10,

1992, within which to file a petition for a writ of cer-

tiorari. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses

against him....

U.S. Const. amend. VI.

STATEMENT

Petitioner was indicted under a superseding indictment

in the United States District Court for the Southern Dis-

trict of West Virginia on one count of conspiracy to com-

mit and cause extortion in violation of 18 U.S.C. § 1951,

three counts of aiding, abetting and causing West Vir-

ginia State Senators Larry A. Tucker and Daniel R. Tonko-

vich and West Virginia Governor Arch A. Moore to com-

mit extortion, in violation of 18 U.S.C. §§$ 1951 and 1952,

one count of mail fraud in violation of 18 U.S.C. § 1341,

two counts of engaging or conspiring to engage in racket-

eering activity in violation of 18 U.S.C. § 1962(c) and

(d), and one count of obstructing justice in violation of

18 U.S.C. § 1508. Following a jury trial, petitioner was

acquitted on the mail fraud charge and the charge of aid-

ing, abetting and causing Governor Moore to commit ex-

tortion, but was convicted on the remaining six counts

and sentenced to 90-months’ imprisonment and _ fined

$50,000. See C.A. App. 99-121, 2359-362, 2623;' App.,

infra, 3a.”

1 All materials that were submitted in the joint appendix to the

United States Court of Appeals for the Fourth Circuit are cited

herein as “C.A. App.”.

2 The court of appeals’ opinion erroneously states that petitioner

was sentenced to 107 months, App., infra, 3a; petitioner was sen-

tenced to 90 months. C.A. App. 2623.

1. In essence the superseding indictment charged that

during the 1987 Regular Session of the West Virginia

legislature, petitioner approached Sam D’Annunzio, a

lobbyist, and informed D’Annunzio that petitioner had

$20,000 available which petitioner wanted D’Annunzio

to use to assist passage of a bill then pending before the

state legislature. C.A. App. 102. The bill would increase

the percentage of wagered money that dog-racing tracks

could retain. Petitioner at the time had a 20-percent

interest in Tri-State Greyhound Park, a corporation own-

ing such a track. App., infra, 2a. The indictment fur-

ther charged that D’Annunzio then met with Senators

Tucker and Tonkovich and offered each of them $10,000

in exchange for supporting the bill. Tonkovich was al-

legedly offered computer equipment as well. The super-

seding indictment alleged that Tucker received the prof-

fered money, but subsequently returned it to D’Annunzio,

who returned it to petitioner. Tonkovich never received

money or computer equipment. C.A. App. 102-04. The

superseding indictment also alleged that petitioner and

D’Annunzio met and discussed bribing Governor Moore,

and that D’Annunzio met with the Governor and offered

him a campaign contribution of $100,000. C.A. App.

104-05.

Prior to issuance of the superseding indictment,

D’Annunzio entered into a plea agreement with the fed-

eral government that required D’Annunzio to plead guilty

to a tax felony and cooperate with federal investigators.

According to the trial testimony of IRS special agent

Little, D’Annunzio met with Little on numerous occa-

sions in 1988. On two occasions in January 1988,

D’Annunzio, in the presence of his two attorneys and

pursuant to the plea agreement, met with Agent Little

and a second agent to discuss his actions with respect

to Tucker, Tonkovich, Moore and petitioner. D’Annunzio

was not under oath at these meetings. No recording,

transcription or signed statement was made at these

meetings. Instead, the special agents took handwritten

notes during the meetings and thereafter Agent Little

produced type-written memoranda recording impressions

of what D’Annunzio had stated. Subsequently, D’Annun-

zio agreed to wear a wire and meet with Senator Tucker

to discuss returning money Tucker had received. D’An-

nunzio also agreed to wear a wire to a meeting with

petitioner at which D’Annunzio gave petitioner a sum of

money equal to that which D’Annunzio had received from

Tucker. On December 4, 1988, more than one year be-

fore issuance of the superseding indictment and petition-

er’s trial, D’Annunzio committed suicide.

2. At trial, over petitioner’s objections, the district

court permitted Agent Little to give testimony about

hearsay statements allegedly made to Agent Little by

D’Annunzio relating to the alleged bribing of Senators

Tucker and Tonkovich. The District Court refused to per-

mit Little to testify about other statements made by

D’Annunzio pertaining to the alleged bribery of Governor

Moore. Agent Little testified before the jury that D’An-

nunzio stated that petitioner had approached D’Annunzio

on the last day or during the last week of the state legis-

lative session and requested that D’Annunzio bribe mem-

bers of the legislature. Specifically, Agent Little testified

that D’Annunzio said that petitioner approached him and

stated: “We've got to get this bill moving. Do you know

anyone? Can you go to someone? I’ve got as high as

20,000 dollars to get the bill moving.” C.A. App. 1586.

When asked “What did Mr. D’Annunzio say he did after

Mr. Ellis indicated that he could go as high as 20,000 to

get the bill moving,” Agent Little testified that D’Annun-

zio stated that he went to Senator Tucker and advised

him “that he had 10,000 dollars for him if he could get

the bill moving,” id., and he thereafter went to Senator

Tonkovich and made a similar representation. C.A. App.

2011.

D’Annunzio’s alleged hearsay statements were critical

evidence because they constituted the only direct evidence

that petitioner intended that D’Annunzio bribe public offi-

cials rather than performing more traditional lobbying

functions. Petitioner testified that he had hired D’Annun-

zio a year before the 1987 legislative session to work on

a related 1986 dog-track bill that was not enacted. Peti-

tioner stated that D’Annunzio had requested $10,000 for

his work in 1986 and that petitioner had actually paid

him $7,000. C.A. App. 1681, 1683. Petitioner testified

that he hired D’Annunzio again to work on passage of

the 1987 bill and agreed to D’Annunzio’s request for

$25,000 for his professional assistance, including the addi-

tional expenses D’Annunzio incurred in operating a hotel

hospitality suite frequented by legislators. C.A. App.

1697-98. Petitioner testified that he never requested

D’Annunzio to bribe legislators or other officials and did

not know that D’Annunzio engaged in such activity. Pe

titioner testified further that he later met with D’Annun-

zio and accepted the return of $10,000 when D’Annunzio

informed petitioner, more than a year after receiving the

money, that D’Annunzio still had the money. C.A. App.

1778.

Senator Tucker, appearing as a government witness

pursuant to a plea agreement, testified that he spoke with

petitioner only once about the dog-track legislation, and

petitioner did not offer him any bribe. C.A. App. 1160.

On the other hand, Tucker testified that D’Annunzio ap-

proached him and said “ ‘I’ll take care of you’ or ‘T’ll see

that there’s something in it for you,’” in exchange for

Tucker’s help with the bill. C.A. App. 1168. Tucker

further told the jury that after passage of the bill D’An-

nunzio gave him $10,000, telling Tucker that “it was as

a friend he was giving it to me,” C.A. App. 1169, 1185,

and that Tucker did not know when he received the money

that it came from any source other than D’Annunzio.

Finally, Tucker testified that approximately a year after

the exchange of the money, during the time when D’An-

nunzio had begun to work with the IRS agents, D’Annun-

zio informed Tucker that the money had come from Tri-

State Greyhound Park rather than from D’Annunzio.

C.A. App. 1185.

Senator Tonkovich also appeared as a government wit-

ness pursuant to a plea agreement. He testified that

D’Annunzio on several occasions had offered him cash

and computer equipment for helping with the 1987 bill,

but that in conversations concerning the bill with peti-

tioner, petitioner made no mention of cash or other bene-

fits for Tonkovich. C.A. App. 1064. Tonkovich stated

that D’Annunzio came alone when he made his offers, that

Tonkoviech thought the offer of cash “was absurd,” and

that D’Annunzio “liked to play the role and he liked to

make himself look important.” C.A. App. 1060. Thus, the

crucial issue at trial was whether D'Annunzio was acting |

on his own when he offered cash to public officials, or

whether D’Annunzio was acting at the request of peti-

tioner or at least with petitioner’s knowledge of D’Annun-

zio’s attempted bribes.

The district court recognized the crucial nature of the

alleged hearsay statements. The court admitted them

under the “catch-all” hearsay exception of Federal Rule

of Evidence 804(b) (5), noting that D’Annunzio’s state-

ments were

more probative on the point for which they are of-

fered than any other evidence which the government

ean procure in that it is Mr. D’Annunzio who can

place Mr. Ellis, as well as the money generated by

Ellis, to obtain passage of the track legislation with

Senator Tucker as a legislator to whom Mr. D’An-

nunzio went in order to get the bill moving in ac-

cordance with defendant’s request of Mr. D’Annunzio.

C.A. App. 1580. The district court further ruled that

D’Annunzio’s hearsay statements were “imbued with cir-

cumstantial guarantees of trustworthiness equivalent to

those hearsay exceptions otherwise set forth in Rule

804'b).” Jd. In determining that D’Annunzio’s hearsay

statements were trustworthy, the district court relied on

corroborating evidence, that is, independent circumstan-

tial evidence that suggested that what D’Annunzio stated

may have occurred. But see Idaho v. Wright, 110 S Ct.

3139 (1990) (prohibiting such use of corroborating evi-

dence).

The court of appeals affirmed the admission of D’An-

nunzio’s hearsay statements. The court of appeals rec-

ognized that the district court’s decision was erroneous

in light of the intervening decision of this Court in Idaho

Vv. Wright. App., infra, 3a. Nevertheless, the court of

appeals considered de novo whether the statements were

admissible under the Confrontation Clause. The court

recognized that the statements, having been admitted

under the “catch-all exception” of Rule 804(b) (5). did

not fall within any “firmly rooted hearsay exception.”

App., infra, 4a n.1. Nevertheless, the court determined

that the statements met the test set forth in /daho for

non-traditional hearsay evidence—namely, that such evi-

dence be accompanied by “particnlarized guarantees of

trustworthiness.” 110 S, Ct. at 3146 (quoting Ohio v.

Roberts, 448 U.S. 56, 66 (1980) ): see App., infra, 4a.

The court of appeals found the following to be “strong

‘indicia of reliability’’”’: (1) D’Annunzio made the state-

ments voluntarily in the presence of two government

agents and his two attorneys; (2) D’Annunzio made the

Statements in accordance with a plea agreement that re-

quired him to be truthful with federal investigators:

(3) the government agents were taking notes in the pres-

ence of D’Annunzio as the latter spoke; (4) D’Annunzio

could be deemed to know, in view of the plea agreement.

that what he was saying would be the subject of further

investigation and confirmation by the government agents:

and (5) D’Annunzio subsequently agreed to record con-

versations with two of the individuals he implicated, that

is, Senator Tucker and petitioner. App., infra, 4a.

REASONS FOR GRANTING THE PETITION

The court of appeals has decided an issue of recurring

and fundamental importance in the conduct of federal

criminal trials in a way that is inconsistent with decisions

of this Court and those of other courts of appeals. The

Fourth Circuit found that the existence of a plea agree-

ment provides strong indicia of reliability within the mean-

ing of Idaho v. Wright. In contrast, numerous courts of

appeal have held precisely the opposite, viz., that state-

ments made pursuant to a plea agreement are inherently

unreliable. The Fourth Circuit's analysis of the reliabil-

ity of out-of-court statements made by an accomplice pur-

suant to a plea agreement permitted the United States to

establish guilt by using the equivalent of an “ex-parte

affidavit or deposition,” the precise type of evidence that

the Sixth Amendment’s Confrontation Clause was adopted

to exclude. The Court should grant this petition to pro-

vide guidance to the lower courts on the types of factors

that will satisfy the Confrontation Clause’s requirement

that the out-of-court statements of an accomplice possess

“narticularized guarantees of trustworthiness,” and spe-

cifically the role, if any, of plea agreements in satisfying

that requirement.

1. The Sixth Amendment right of confrontation is

“lo}ne of the fundamental guarantees of life and liberty”

and is “a right long deemed so essential for the due pro-

o tection of life and liberty that it is guarded against leg-

islative and judicial action by provisions in the constitu-

tion of the United States and in the constitutions of most,

if not of all, the states composing the Union.” Kirby v.

United States, 174 U.S. 47, 55, 56 (1899); Pointer v.

Texas, 380 U.S. 400, 404 (1965). Numerous opinions of

this Court recognize that the Sixth Amendment’s Con-

frontation Clause provides “two types of protection for a

criminal defendant: the right physically to face those

who testify against him, and the right to conduct cross-

examination.” Pernsylvania v. Ritchie, 480 U.S. 39, 51

(1987). That the right of cross-examination is essential

to ensuring the accuracy of the verdict in a criminal trial!

has been repeatedly emphasized by this Court. Chambers

V. Mississippi, 410 U.S. 284, 295 (1973): Dutton v.

Evans, 400 U.S. 74, 89 (1970) ; Davis v. Alaska, 415 U.S.

308, 315-16 (1974); Alford v. United States, 282 U.S.

687, 692 (1931). “The right of cross-examination is more

than a desirable rule of trial procedure. It is implicit in

the constitutional right of confrontation, and helps assure

the ‘accuracy of the truth-determining process’ .... It is,

indeed, ‘an essential and fundamental requirement for the

kind of fair trial which is this country’s constitutional

goal.’”” Chambers, 410 U.S. at 295 (citation omitted)

(quoting Dutton v. Evans, 400 U.S. 74, 89 (1970) and

Pointer Vv. Texas, 380 U.S. 400, 405 (1965) ).

Because both the Confrontation Clause and the rule

against hearsay stress the value of cross-examination in

revealing sources of inaccuracy and untrustworthiness,

this Court has recognized “the similarity of the values

protected” by both. California v. Green, 399 U.S. 149,

155-56 (1970). But the Court has emphasized that the

Confrontation Clause and the hearsay rule are not pre-

cisely congruent and has “more than once found a viola-

tion of confrontation values even though the statements

in issue were admitted under an arguably recognized

hearsay exception.” Green, 399 U.S. at 155-56 (citing

Barber v. Page, 390 U.S. 719 (1968) ):; Pointer v. Texas,

380 U.S. 400 (1965). In Ohio v. Roberts. 448 U.S. 56

(1989), the Court set forth “a general approach” for de-

termining when incriminating statements admissible un-

der an exception to the hearsay rule also meet the re-

quirements of the Confrontation Clause. /d. at 64-65.

“First, in conformance with the Framers’ preference

for face-to-face accusation, the Sixth Amendment estab-

lishes a rule of necessity.” Jd. at 65. “In the usual ease

..., the prosecution must either produce, or demonstrate

the unavailability of, the declarant whose statement it

wishes to use against the defendant.” Jd. Second, once

a witness is shown to be unavailable, “his statement is

admissible only if it bears adequate ‘indicia of reliabil-

ity.’ Reliability can be inferred without more in a case

where the evidence falls within a firmly rooted hearsay

exception. In other cases, the evidence must be excluded,

at least absent a showing of particularized guarantees

of trustworthiness.” Jd. at 66; accord Idaho, 110 S. Ct.

at 3146.

It is undisputed that the out-of-court statements of

D’Annunzio do not fall within any traditional hearsay |

exception. They were admitted under the “catch-all” or |

“residual exception” of Fed. R. Evid. 804(b) (5). State- |

ments admitted under Rule 804(b) (5) “almost by defini-

tion . . . do not share the same tradition of reliability

that supports the admissibility of statements under a

firmly rooted hearsay exception.” Jdaho, 110 S. Ct. at

3148. Accordingly, D’Annunzio’s statements “are ‘pre-

sumptively unreliable and inadmissible for Confrontation

Clause purposes.’”’ Jd. (quoting Lee v. Illinois, 476 U.S.

530, 543 (1986) ).

Since Ohio v. Roberts, the Court has decided two cases

involving statements admitted under “residual” or “catch-

all” clauses, and has in each case determined that such

statements lacked “the particularized guarantees of trust-

worthiness” required by the Confrontation Clause. Lee

v. Illinois, 476 U.S. 530 (1986) (co-defendant’s confes-

sion) ; Jdaho, 110 S. Ct. 3189 (1990) (statements of child

sexual abuse victim).

Lee Vv. Illinois involved statements analogous to D’An-

nunzio’s—that is, an accomplice’s hearsay statements in-

culpated the defendant. In Lee, this Court held that the

trial judge’s express reliance during a bench trial on por-

tions of a co-defendant’s confession obtained by police at

the time of arrest as substantive evidence against peti-

tioner violated petitioner’s right of confrontation as the

co-defendant refused under the Fifth Amendment to tes-

tify and hence was unavailable for cross-examination.

The majority noted that “[o]ur cases recognize that

[the] truth finding function of the Confrontation Clause

is uniquely threatened when an accomplice’s confession

is sought to be introduced against a criminal defendant

without the benefit of cross-examination.” Jd. at 541.

The Court found that this “presumption of unreliability

that attaches to co-defendants’ confessions” was not over-

come by a sufficient showing of trustworthiness. Jd. at

543. In particular, the majority noted that while the con-

fession was voluntary, this fact “does not bear on the

question of whether the confession was also free from

any desire, motive or impulse . . . either to mitigate the

appearance of [declarant’s] own culpability by spreading

the blame or to overstate [defendant’s| involvement in

retaliation ....” Id. at 544.*

The nature of the “particularized guarantees of trust-

worthiness” that will support admission of non-traditional

hearsay was further clarified in Idaho v. Wright. There,

this Court indicated that guarantees of trustworthiness

consist of circumstances existing at the time a statement

is made that evince a declarant’s lack of motive to be un-

truthful and lack of opportunity to be inaccurate. The

Court derived this conclusion “from the rationale for

permitting exceptions to the general rule against hearsay:

% Significantly, the dissent in Lee v. Illinois, 476 U.S. 530 (1986)

found the co-defendant’s confession to be trustworthy only because,

under the unique facts of that case, the co-derendant’s “statements

were thoroughly and unambiguously adverse to his penal interest,”

bringing the statement within the traditional hearsay exception for

“declarations against interest.” Jd. at 551 (Blackmun, J., dissent-

ing). The dissent elaborated that “the unusual conjunction of these

indicia of reliability—thorough and unambiguous adversity to

Thomas’ penal interest, extensive and convincing corroboration by

petitioner’s own confession, further corroboration provided by phys-

ical evidence, and reliable evidence of voluntariness” persuaded the

dissent that no violation of the Confrontation Clause had occurred

and concluded that “[w Jere any of these elements missing, the result

might be different ....” Jd. at 557. Of course, in this case none

of these elements is present.

‘The theory of the hearsay rule... is that the many

possible sources of inaccuracy and untrustworthiness

which may lie underneath the bare untested assertion

of a witness can best be brought to light and exposed,

if they exist, by the test of cross-examination. But

this test or security may in a given instance be su-

perfluous; it may be sufficiently clear, in that in-

stance, that the statement offered is free enough

from the risk of inaccuracy and untrustworthiness,

so that the test of cross-examination would be a work

of supererogation.’ ”

110 S. Ct. at 3148-49 (quoting 5 J. Wigmore, Evidence

$ 1420, p. 251 (J. Chadbourne rev. 1974)). Traditional ex-

ceptions pertain to statements made “under circumstances

that eliminate the possibility of fabrication, coaching, or

confabulation ....” Jd. at 3149. The need for proof of

lack of motive to fabricate led the Court to prohibit re-

liance on corroborating evidence to determine the trust-

worthiness of hearsay statements, id. at 3148, 3150, and

to conclude that hearsay should be admitted under the

Confrontation Clause only when the circumstances sur-

rounding a statement indicate such trustworthiness “that

adversarial testing wow!” add little to its reliability.” Jd.

at 3149. In other words, the admission of hearsay does

not violate the Sixth Amendment where “the declarant’s

truthfulness is so clear from the surrounding circum-

stances that the test of cross-examination would be of

marginal utility ... .” Jd. (emphasis added).

2. The court of appeals departed significantly from

this Court’s prior Confrontation Clause jurisprudence

by relying on factors—chiefly, the existence of a plea

agreement—that have traditionally been held to indicate

a motive to fabricate the truth, rather than the absence

of any risk of untruthfulness. Moreover, by relying on

the declarant’s subsequent willingness to wear a wire to

record conversations with petitioner, the court of appeals

indirectly considered corroborative evidence, in violation

of the explicit holding of Jdaho v. Wright.

The court of appeals listed the folowing five “indicia

of reliability”:

First, D’Annunzio issued the statements voluntarily

in the presence of two government agents and both

his attorneys. Second, D’Annunzio made the state-

ments in accordance with a plea agreement which re-

quired him to be truthful with federal investigators.

Third, the government agents were taking notes in

the presence of D’Annunzio as the statements were

made. Fourth, D’Annunzio could be deemed to know,

in view of the plea agreement, that what he was say-

ing would be the subject of further investigation—

and confirmation—by the government. Fifth, though

the plea agreement did not require him to do so,

D’Annunzio agreed to record subsequent conversa-

tions with the individuals he had implicated (Sena-

tors Tucker and Ellis), suggesting that he was will-

ing to have the truthfulness of these statements

tested.

App., infra, 4a. All five largely collapse into the mere

fact that D’Annunzio’s statements were made pursuant to

a plea agreement.

The court of appeals’ first factor, voluntariness, ignores

the extent to which a declarant is forced to enter into a

plea agreement to avoid more serious pending charges.

Furthermore, voluntariness, in the sense used by the court

of appeals, would apply to virtually all statements given

to law enforcement officials pursuant to plea agreements.

More fundamentally, this Court has recognized that

whether or not a declarant’s statement is voluntary

does not bear on the question of whether the confes-

sion was also free from any desire, motive, or im-

pulse [declarant] may have had either to mitigate the

appearance of his own culpability by spreading the

blame or to overstate [petitioner’s] involvement. .. .

Lee, 476 U.S. at 544.

The court of appeals also noted that D’Annunzio’s

statements were given “voluntarily in the presence of

both his attorneys.” App., infra, 4a. The court of

appeals appears to have viewed the presence of D’Annun-

zio’s attorneys as a factor supporting the voluntariness

of the statements, rather than directly supporting their

truthfulness. As attorneys generally have no personal

knowledge of the events a declarant relates to investigsa-

tors under a plea agreement,’ the court of appeals cor-

rectly treated this factor as proof of voluntariness,

rather than being itself an indicator of trustworthiness.

The second factor pertains to the existence of the plea

agreement, the inherent unreliability of which will be dis-

cussed further below. The third factor, that government

agents took notes while D’Annunzio spoke, is irrelevant

to whether D’Annunzio had a motive to distort his state-

ments. The fourth factor, that D’Annunzio was aware

that his statements would be further investigated by gov-

ernment agents would, again, apply to any statement

made under a plea agreement, and is based on the as-

sumption that government agents have the ability to sep-

arate the truth from any falsehoods or exaggerations

contained in a declarant’s statements. This is plainly not

so. See Lee, 476 U.S. at 545 (discussing the problem of

the “selective reliability” of an aeccomplice’s inculpatory

statements) .°

‘In this case, in response to the question “I take it that your

client never told you anything in private that was inconsistent with

what you remember today as to what he said to Agent Little,” one

of D’Annunzio’s attorneys responded :

No. My client and I had--I was somewhat—I really didn’t

know—-the communication my client made to me with respect to

these matters was very, very sketchy. ... My job was done with

the plea bargain and I wasn’t really interested in getting the

history and I had very little communication with my client about

his conduct with the legislators.

C.A. App. 1533.

5 In the instant case, D’Annunzio allegedly told the agents that

petitioner approached him and allegedly stated “Can you go to

The fifth factor, subsequent willingness to wear a wire,

is the only factor that would not be true of every state-

ment made under a plea agreement. Yet, D’Annunzio

made his decision to wear a wire months after giving the

alleged hearsay statements; hence, his decision was not

a circumstance surrounding the making of the statements.

Furthermore, the worth of this factor depends upon

whether a declarant was actually willing to meet with a

defendant and, during such a meeting, to discuss matters

that. corroborate the out-of-court statements given to

agents by the declarant. In this case, for example, while

D’Annunzio wore a wire, met with petitioner and gave

money to petitioner, no statements made during the taped

conversations confirmed that petitioner had given money

to D’Annunzio with the understanding that it would be

used as a bribe.

Moreover, the taped conversations were admissible and

were admitted in this case. Their evidentiary value could

be weighed directly by the jury. The court of appeals

used the existence of the taped conversations to corrobo-

rate the statements allegedly given previously by D’An-

nunzio, but this violates the holding of /daho v. Wright

that prohibits bootstrapping hearsay evidence. In sum,

factor five constitutes the impermissible use of corrobo-

rative evidence to bolster the credibility of a declarant’s

statements, while factors one through four reduce to the

fact that declarant’s statement was made pursuant to

a plea agreement.

What makes this holding particularly critical is that

the court of appeals has held testimony admissible against

a criminal defendant that the Confrontation Clause was

someone? I’ve got as high as $20,000 to get the bill moving.” No

other evidence produced at trial verified that petitioner made this

statement or that petitioner gave money to D’Annunzio with the

understanding that it would be used to bribe state officials. As the

alleged conversation occurred only between D’Annunzio and peti-

tioner, it was not subject to verification by government agents.

specifically adopted to exclude. The Court has consistently

noted that the “primary object of the [Confrontation

Clause] was to prevent depositions or ex parte affidavits”

from being used against defendants. Mattox v. United

States, 156 U.S. 237, 242 (1895) ; see California v. Green,

399 U.S. 149, 156 (1970); Dutton v. Evans, 400 U.S. 74,

94 (1970) (Harlan, J., concurring in result); White v.

Illinois, 112 S. Ct. 736, 747 (1992) (Thomas, J. concur-

ring in part and in result). D’Annunzio’s alleged hearsay

statements were statements made with a view to ap-

proaching legal proceedings. They are similar to deposi-

tions and ex parte affidavits except they are even less re-

liable because they were not given under oath and were

not formalized in a signed statement. If left standing, the

court of appeals’ opinion “creates a powerful incentive

for prosecutors to acquiesce in, or even plan, the un-

availability of witnesses in order to prevent live con-

frontation and cross-examination of witnesses in the

courtroom.” United States v. Gomez-Lemos, 939 F.2d

326, 333 (6th Cir. 1991).

3. The court of appeals’ holding that the fact that the

plea agreement “required [D’Annunzio]| to be truthful”

is a “strong ‘indicia of reliability’” directly conflicts

with numerous vpinions from other courts of appeal hold-

ing that the existence of a plea agreement is an indica-

tor of wntrustworthiness because it provides a declarant

with a motive for currying favor with government inves-

tigators and ensures that a declarant’s statements are not

against his or her penal interests.* Gomez-Lemos, 939

® Conversely, the absence of any plea bargaining or plea agreement

has been held to be a sign that a declarant was not currying favor

with investigating officers and was acting against self-interest.

United States v. Panzardi-Lespier, 918 F.2d 313, 316 (1st Cir. 1990)

(an indicia of reliability for grand jury testimony is “‘whether the

informant appeared without the protection of immunity”); United

States v. Vernor, 902 F.2d 1182, 1188 (5th Cir.), cert. denied, 111

S. Ct. 301 (1990) ; United States v. Garcia, 897 F.2d 1413, 1421 (7th

Cir. 1990) (declarant “voluntarily made his statement after being

F.2d at 330 (reversing trial court’s admission of grand

jury testimony and observing that the fact that declar-

ants “entered into plea agreements with the government

prior to their grand jury testimony does not necessarily

lessen the likelihood that they would want to curry favor

with the government, avenge themselves, or spread the

blame by implicating defendant” ) ; United States v. Feld-

man, 761 F.2d 380, 387-88 (7th Cir. 1985) (reversing

admission of prior deposition testimony given under

grant of immunity and observing “ ‘when immunity, plea

agreements, or even currying favor with the law enforce-

ment oificials is involved, there js substantial likelihood

that the statement is self-serving and, thereby, unreli-

able’”) (quoting United States vy. Turner, 475 F. Supp.

194, 198 (E.D. Mich. 1978) '; United States vy. Bailey,

981 F.2d 341 (3d Cir. 1978) (district court abused its

discretion under catch-all] exception of Rule 804(b) (5) in

admitting written and signed hearsay statement given

by declarant to investigators pursuant. to plea agree-

ment); United States v. Gonzalez, 559 F.2d 1271, 1273

(5th Cir. 1977) (grand Jury testimony inadmissible un-

der either statement against interest or catch-all excep-

tions where declarant “had been convicted and yiven

immunity’).

United States y. Bailzy and United States v. Turne

are virtually on all fours with the present case. In Bailey,

the court found that a signed, written statement made by

a declarant pursuant to a plea agreement and in the

presence of declarant’s attorney lacked circumstantia]

guarantees of trustworthiness. 581 F.2d at 350. In

Turner, the court held that a signed statement and grand

advised of his Miranda rights and did not enter into ‘any plea agree-

ments with the government”): United States v. Doerr, 886 F.2d

944, 956 (7th Cir. 1989) (grand jury testimony admissible under

Rule 804(b)(5) and Confrontation Clause where given without

immunity and thus against penal interest) ; United States y. Garris,

616 F.2d 626, 632 (2d Cir.) (admitting custodia] statements where

“no plea bargaining occurred”). ¢¢ rt. denied, 447 U.S. 926 (1980).

jury testimony given during negotiations leading to a

plea agreement lacked trustworthiness. 475 F. Supp. at

201.’

This Court has itself recognized that the existence of

an agreement as to future prosecution is an indicator of

untrustworthiness which must be revealed to jurors for

their consideration. See Giglio v. United States, 405 U.S.

150, 154-55 (1972) (requiring prosecutors to disclose all

evidence of such agreements and observing “evidence of

any understanding or agreement as to a future prosecu-

tion would be relevant to [the witness’s! credibility and

the jury was entitled to know of it”); Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986) (holding that trial

court’s prohibition on cross-examination of all inquiry

into government’s dismissal of charges against witness

violated Confrontation Clause).

Indeed, it is horn-book law that testimony given pur-

suant to a plea agreement must be examined by jurors

with “particular care.” E. Devitt, C. Blackmar & K.

O’Malley, Federal Jury Practice and Instructions: 1991

Cumulative Supplement § 17.06 at 423 (1991).* This fact

is reflected in the pattern jury instructions of federal

circuits which state that testimony given by the recipient

of a plea agreement “must be considered with more cau-

™In this case, completion of the plea agreement and actual

sentencing hung over D’Annunzio’s head as he gave his statements.

The plea agreement was not actually signed until January 27, 1988,

several days after the January 21st meeting and the very day of the

January 27th meeting at which D’Annunzio allegedly made the hear-

say statements. Furthermore, D’Annunzio had not been sentenced

and investigation of his prior tax payments had not been completed

when he allegedly made the hearsay statements.

8 See also 1 E. Devitt & C. Blackmar, Federal Jury Practice and

Instructions § 17.02 at 524 <3d ed. 1977) (“testimony of an informer

who provides evidence against a defendant . . . for immunity from

punishment .. . must be examined and weighed by the jury with

greater care than the testimony of an ordinary witness’’).

tion than the testimony of other witnesses.” ® Accord

Federal Judicial Center, Pattern Criminal Jury Instruc-

tions, Instruction 24 at 32 (1988 ed.) ; see also United

States v. Patterson, 648 F.2d 625, 631 (9th Cir. 1981)

(“[flailure to give an informant or accomplice credi-

bility instruction requires reversal when the informant

or accomplice’s testimony is ‘ “important” to the case’ as

United States v. Garcia, 528 F.2d 580, 587-88 (5th Cir.)

(holding that where informer’s testimony is crucial, fail-

ure to give cautionary instruction is plain error), cert.

denied, 426 U.S. 952 and cert. denied, 429 U.S. 898

(1976). “The purpose of disclosing the terms of a plea

bargain is to furnish defense counsel with information

which will allow him to attack the credibility of the wit-

ness.” United States v. Sanfilippo, 564 F.2d 176, 178 (5th

Cir. 1977) (reversing conviction where prosecutor per-

mitted government witness to withhold all terms of plea

agreement).

In reaching its conclusion to admit D’Annunzio’s hear-

Say statements, the Fourth Circuit followed a prior

Fourth Circuit opinion that concluded that statements

made pursuant to a plea agreement possessed sufficient

guarantees of trustworthiness. App., infra, 4a-5a (citing

®U.S. Eleventh Circuit District Judges Association, Pattern

Jury Instructions: Criminal Cases, Instruction 1.2 at 35 (1985

ed.) (emphasis added) ; accord U.S. Sixth Circuit District Judges

Association, Pattern Criminal Jury Instructions, Instruction 7.07 at

152 (1991 ed.); Committee on Model Jury Instructions: Ninth

Circuit, Manual of Model Criminal Jury Instructions for the Ninth

Circuit, Instructions 4,09-4.12 at 58-61 (1989 ed.) (instructions

for testimony under grant of immunity, of informer, of accomplice,

of witness who has pleaded guilty) ; see U.S. Fifth Circuit District

Judges Association, Pattern Jury Instructions: Criminal Cases,

Instruction 1.16 at 27 (1990 ed.) (testimony of recipient of plea

agreement “is always to be received with caution and weighed with

great care”); Committee on Federal Criminal Jury Instructions

of the Seventh Circuit, Federal Criminal Jury Instructions of the

Seventh Circuit, Instructions 3.19-3.23 at 41-45 (1980 ed.) (testi-

mony given under immunity, or of informer, perjurer or accomplice

“must be considered with caution and great care’).

United States v. Workman, 860 F.2d 140 (4th Cir. 1988),

cert. denied, 489 U.S. 1078 (1989)). Contrary to the

opinions of other courts of appeal and to the jury instruc-

tions cited above, Workman concluded that the declarant’s

statement made pursuant to a plea agreement constituted

a “statement against interest.” 860 F.2d at 144. Work-

man further concluded that the trial court’s findings that

the hearsay statement had been given voluntarily, in the

presence of declarant’s attorneys, and was tape-recorded

constituted “guarantees of trustworthiness.” Jd. The

Fourth Circuit is thus charting a course in conflict with

that of other circuits. This Court should grant certiorari

to resolve the conflict between the Fourth Circuit and

other federal circuits concerning whether the fact that a

statement is made pursuant to a plea agreement con-

taining a truth-telling obligation constitutes a “particu-

lar guarantee of trustworthiness.”

4. The court of appeals’ decision to admit the out-of-

court inculpatory accusations of a co-conspirator conflicts

with opinions of this Court which have held such state-

ments to be “inevitably suspect.” Bruton v. United States,

391 U.S. 123, 136 (1968). In Bruton, the Court held that

because of the substantial risk that the jury, despite lim-

iting instructions to the contrary, considered the inculpa-

tory out-of-court statements made by a non-testifying co-

defendant in determining petitioner’s guilt during a joint

trial, admission of the co-defendant’s confession violated

petitioner’s right of cross-examination secured by the Con-

frontation Clause. Jd. at 126. The Court noted with re-

spect to the “incriminating extrajudicial statements of a

co-defendant” that:

Not only are the incriminations devastating to the

defendant but their credibility is inevitably suspect,

a fact recognized when accomplices do take the stand

and the jury is instructed to weigh their testimony

carefully given the recognized motivation to shift

blame onto others. The unreliability of such evidence

is intolerably compounded when the alleged accom-

plice, as here, does not testify and cannot be tested

by cross-examination.

id. at 135-36 (footnote omitted)."” In concurrence, Jus-

tice Stewart observed that “certain kinds of hearsay,”

including the out-of-court statement of a co-defendant,

“are at once so damaging, so Suspect, and yet so difficult

to discount, that jurors cannot be trusted to give such

evidence the minimal weight it logically deserves, what-

ever instructions the trial judge might give.” Jd. at 138

(Stewart, J., concurring). Justice Stewart continued:

It is for this very reason that an out-of-court accusa-

tion is universally conceded to be constitutionally in-

admissible against the accused, rather than admis-

sible for the little it may be worth.

Id.

The Court has held that cross-examining government

agents about the statement given by a defendant’s ac-

complice “could not substitute for cross-examination of

[the declarant] to test the truth of the statement itself.”

Douglas vy. Alabama, 380 U.S. 415, 420 (1965). This

Court reaffirmed in Lee v. Illinois that “the Confronta-

tion Clause is uniquely threatened when an accomplice’s

confession is sought to be introduced against a criminal

defendant without the benefit of cross-examination.” 476

U.S. at 541. In Lee, the Court focused on two major

sources of unreliability pertaining to an accomplice’s con-

‘The Court has recognized that “it [is] the better practice

for courts to caution juries against too much reliance upon the testi-

mony of accomplices, and to require corroborating testimony before

giving credence to such evidence... .” Caminetti v. United States,

242 U.S. 470, 495 (1917); see Crawford v. United States, 212 U.S.

183, 203-04 (1909) (the testimony of “a confessed accomplice” who

has “turned ‘State’s evidence’” should “be received with suspicion,

and with the very greatest care and caution, and ought not to be

passed upon by the jury under the same rules governing other and

apparently credible witnesses. In many jurisdictions such a man

is an incompetent witness unless he has been pardoned”).

fession. First, there frequently exist “circumstances in

which the |accomplice|] stands to gain by inculpating an-

other.” Jd. Second, “(t]he true danger inherent in this

type of hearsay is, in fact, its selective reliability.” Jd.

at 545; see Douglas v. Alabama, 380 U.S. at 419."

Both of the factors enumerated in Lee are present

here. By accusing petitioner of masterminding the al-

leged extortion, D’Annunzio shifted blame away from

himself and could have been currying favor with IRS

investigators who were then investigating his prior tax

filings and who would make recommendations at his

pending sentencing. Moreover, D’Annunzio may have felt

or been pressured to implicate other individuals in order

to obtain the plea agreement.'* Given D’Annunzio’s sui-

cide, it is impossible to know what may have motivated

him to make the alleged statements.'’* In sum, “co-

conspirators who have entered into a plea agreement or

those who have been given use immunity by the govern-

ment still often possess the motivations to lie noted in

Lee.” United States v. Gomez-Lemos, 939 F.2d 326, 333

11 This second factor refers to the ability of an accomplice to give

a statement that is true in part but also false with respect to sig-

nificant details that inculpate the defendant.

12 As noted previously, the plea agreement was not actually signed

until January 27, 1988, several days after the January 21st meeting

and the very day of the January 27th meeting at which D’Annunzio

allegedly made the hearsay statements, and D’Annunzio had not been

sentenced when he allegedly made the statements.

13 The court of appeals failed to consider that the very cause

of D’Annunzio’s unavailability sheds further doubt on the reliability

of his hearsay statements. At trial, a close friend of D’Annunzio’s

testified that more than one year before his suicide, and prior to

entering into a plea agreement, D’Annunzio felt suicidal and sought

psychiatric help because of newspaper articles that had appeared

questioning his financing of a house in which a West Virginia legis-

lator lived and suggesting that he had engaged in acts of extortion.

C.A. App. 1627-28. See United States v. Fisher, 28 MJ. 544,

547 (A.F.C.M.R. 1989) (“[s]uicide can demonstrate a guilty con-

science over bringing charges” and “[{s]uicide attempts can be a

factor weighing against credibility”).

(6th Cir. 1991). Furthermore, the alleged hearsay state-

ment is precisely the type of accusation subject to selec-

tive reliability. Although it is true that both petitioner

and D’Annunzio worked for passage of the racing bill,

the selectively unreliable port'on of the hearsay is the ac-

cusation that petitioner in.ended D’Annunzio to use

money to bribe state officials.

The court of appeals erred in failing to consider the

motivations D’Annunzio had for shading the truth and

the potential for selective reliability in his statements,

that is, the factors enumerated in Lee Vv. Illinois, Bruton,

and Douglas v. Alabama. The Court should hear this case

to consider the similarities between accomplice confes-

sions given shortly after arrest and those given pursuant

to a plea agreement, and whether there existed here suffi-

cient particularized guarantees of trustworthiness to

“overcome the weighty presumption against such uncross-

examined evidence.” Lee vy. Illinois, 476 U.S. at 546.

5. As the preceding discussion reveals, this Court’s

decisions establish two presumptions against admission

of D’Annunzio’s statements. One presumption stems

from the fact that D’Annunzio’s statements constituted

the inculpatory accusations of an accomplice. This ¢‘ourt

has frequently found that the circumstances surrounding

such hearsay lacked “sufficient ‘indicia of reliability’...

to overcome the weighty presumption against the admis-

sion of such uncross-examined evidence.” Id. (emphasis

added). A second presumption against admissibility

stems from the fact that D’Annunzio’s statements were

admitted under the catch-all hearsay exception of Rule

804(b) (5) and thus did not fall within any firmly-

established exception to the rule against hearsay. In the

two cases in which this Court has considered whether

hearsay admitted under Rule 804(b) (5) violated the

Confrontation Clause, the Court has placed an added

burden of persuasion on the government:

Given the presumption of inadmissibility accorded

accusatory hearsay statements not admitted pursu-

ant to a firmly rooted hearsay exception, Lee, 476

ULS., at 543... we agree with the court below

that the State has failed to show that the younger

daughter’s incriminating statements to the pediatri-

cian possessed sufficient “particularized guarantees

of trustworthiness” under the Confrontation Clause

to overcome that presumption.

Idaho v. Wright, 110 S. Ct. 3139, 3152-53 (1990) (em-

phasis added).

It is clear from the analysis employed in Jdaho that

the Court used the “presumption of inadmissibility” that

attaches to non-traditional hearsay as an evidentiary

counter-weight that the government was required “to

overcome” by making a particularly strong showing of

trustworthiness. Moreover, the Court’s requirement that

the government must meet a heightened standard in

proving the trustworthiness of non-traditional hearsay is

thoroughly justified by both the “ad-hoc” nature of such

hearsay, Idaho, 110 S. Ct. at 3147, and also by Con-

gress’ intention that the catch-all exception would be ap-

plied only in exceptional cases. United States v. Bailey,

581 F.2d 341, 346 (3d Cir. 1978).

The court of appeals ignored these presumptions in up-

holding petitioner’s conviction on the basis of D’Annun-

zio’s hearsay statements. Unlike the Supreme Court of

Idaho which “properly focused on the presumptive unre-

liability of the out-of-court statements,” /daho, 110 S. Ct.

at 3152, the court of appeals ignored the teachings of this

Court in Jdaho and Lee and this failure warrants review

by this Court.

6. Finally, the Fourth Circuit ignored the fact that

D’Annunzio’s statements were made under specific cir-

cumstances that further contributed to their unbelieabil-

itv and that failed to ensure an accurate reporting of

what D’Annunzio actually said. Despite the obvious im-

portance of the information D’Annunzic allegedly pro-

vided, the IRS special agents failed to use any steno-

Ne VI kaa lA ears APC as? trom A aca NAAN TN 8

PO ti lal iat tthe ane tats nin

eee

graphic or video means to preserve his statements. Nor

did they have D’Annunzio sign a written statement, or

even initial the notes taken by the IRS agents, despite

working with him for almost a full year. This failure

significantly undercuts the reliability of D’Annunzio’s

statements.

Moreover, the lack of a verbatim transcript, video

tape, or even a mere signed statement and the particu-

lar circumstances surrounding the government’s interro-

gation of D’Annunzio cast serious doubt on whether

D’Annunzio actually made the statements attributed to

him by the IRS agents. For example, Agent Little pur-

ported to be testifving based on notes he took at the

two meetings. The meetings each lasted approximately

three-and-one-half hours. Yet Agent Little’s notes for

the January 21st meeting consisted of only one-and-one-

half pages pertaining to petitioner. C.A. App. 2095."

The notes for the January 27th meeting consisted of two

paragraphs pertaining to petitioner. C.A. App. 2096.

Moreover, Little’s notes reflected considerable editing by

the agent. C.A. App. 2075, 2080-82.

The court of appeals did nothing to remedy these prob-

lems. To the contrary, it refused to make a determina-

tion as to the accuracy of the government’s recounting

of the hearsay statements. See App., infra, 5a. Under

these circumstances, the court at a minimum should have

required the record to demonstrate additional indicia of

accuracy. Compare United States v. Love, 592 F.2d 1022,

1026 (8th Cir. 1979) (holding statement inadmissible

under 804(b) (5) (the catch-all exception) and 804 (b) (3)

(against penal interest exception) where “statement was

not made under oath, was oral and later transcribed by

[FBI agent], was made... in custody,” and may have

appeared to declarant to be in her penal interest) ; United

States Vv. Petit, 841 F.2d 1546, 1555 n.13 (11th Cir.),

cert. denied, 487 U.S. 1287 (1988), with United States

14 By contrast, when Agent Little interviewed petitioner for four

hours on September 30, 1988, Little took 30 pages of notes. C.A.

App. 2096.

v. Garris, 616 F.2d 626, 632 (2d Cir.) (admitting testi-

mony based on notes where agent took notes “abbreviat-

ing nothing of substance,” and declarant reviewed notes

at trial for accuracy), cert. denied, 447 U.S. 926 (1980).

It did not.

* * * *

The Court should resolve the conflict between the

Fourth Circuit and other circuits over whether the fact

that a statement is made pursuant to a plea agreement

by an individual whose motives are suspect can satisfy

the particularized guarantee of trustworthiness required

by the Confrontation Clause. This issue has arisen repeat-

edly in the past and will continue to do so and warrants

review by the Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

REX E. LEE *

CARTER G. PHILLIPS

LAURA V. FARTHING

KuRT H. JACOBS

JEANNE BOWMAN SZROMBA

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

ROBERT M. BASTRESS, JR.

FRANKLIN D. CLECKLEY

West Virginia University

Law Center

University Avenue

Morgantown, WV 26506

(304) 293-5308

Counsel for Petitioner

April 10, 1992 * Counsel of Record

APPENDIX

BE Sear Ey it Set MAD «sien: lll

— es

eld a eR ey ee

ARE A TES ce

APPENDIX

UNITED STATES COURT OF APPEALS

FOURTH CIRCUIT

Nos. 90-5726, 91-5771

UNITED STATES oF A MERICA,

Plaintiff-A ppellee,

WILLIAM T. ELLIs,

Defendan t-A ppellant.

UNITED STATES OF AMERICA,

Piaintiff-A ppellee,

WILLIAM T. ELLIs,

Defendant-A ppellant.

Argued: Oct. 3, 1991

Decided: Dee. 12, 1991

As Amended Jan. 7, 1992

Franklin Dorrah Cleckley, Morgantown, W.Va., argued

(Phillip D. Gaujot, Charleston, W.Va., on the brief),

for defendant-appellant.

Joseph F. Savage, Jr., Asst. U.S. Atty., Huntington,

W.Va., argued (Michael W. Carey, U.S. Atty., Hunting-

ton, W.Va., on the brief), for plaintiff-appellee.

Before POWELL, Associate Justice (Retired), United

States Supreme Court, sitting by designation, and

PHILLIPS and NIEMEYER, Circuit Judges,

OPINION

POWELL, Associate Justice:

The principal questions presented in this appeal are

whether the district court erred in admitting hearsay

statements of a deceased witness, in allowing discovery

of the Appellant’s personal notes, and in calculating the

Appellant’s sentence. For reasons that follow, we affirm

the Appellant’s conviction and his sentence.

Appellant William Ellis was a 20% limited partner

of Tri-State Greyhound Park, Inc. (Tri-State), a West

Virginia corporation that operates pari-mutuel betting

on greyhound races. Under West Virginia law, facili-

ties like Tri-State are allowed to keep a specific percent-

age—the “takeout”—of the revenue generated by public

wagers. In 1986 the owners of Tri-State, faced with

unanticipated shortfalls in revenue, supported a proposed

bill that would have increased their “takeout” percent-

age. The 1986 “takeout” bill received the support of

both houses of West Virginia’s bicameral legislature, but

was subsequently vetoed by the Governor.

In 1987, a similar bill was introduced and renewed

efforts were made to obtain support for it. To this end,

Tri-State promised to pay Ellis $500,000 if the bill be-

came law. Ellis proceeded in a variety of allegedly

fraudulent ways to assure passage of the bill. He worked

primarily through Samuel! D’Annunzio, a seasoned West

Virginia lobbyist, providing him with sums of cash,

among other things, with which to influence various state

legislators.

The West Virginia legislature eventually passed, and

the Governor signed, the 1987 bill. Soon afterwards, a

federal investigation into charges of corruption surround-

ing passage of the 1987 bill was initiated. As a conse-

quence of that investigation, D’Annunzio entered into a

plea agreement with the federal government. D’Annunzio

met several times with federal agents, elaborating the

methods used to further the scheme and detailing the

nature of his relationship with Ellis. D’Annunzio also

secretly recorded conversations with Ellis and other par-

ticipants in the scheme. On December 4, 1988, in the

midst of the investigation, D’Annunzio committed suicide.

On the basis of information provided by D’Annunzio

and others, Ellis was indicted. The superseding indict-

ment charged eight counts of Hobbs Act, mail fraud,

racketeering, and obstruction of justice violations. A

jury convicted Ellis on all of the counts except two—the

mail fraud charge and a substantive extortion charge.

The district court sentenced Ellis to 107 months and fined

him $50,000.

Ellis first argues that the district court violated his

rights under the Confrontation Clause by admitting hear-

say statements of deceased witness Samuel D’Annunzio

that did not bear sufficient “indicia of reliability.” Or-

dinarily we review the admission of hearsay statements

for abuse of discretion. United States v. Hinkson, 632

F.2d 382, 385 (4th Cir.1980). In this case, however, de

novo review is appropriate. For shortly after the jury

returned its verdict, the Supreme Court issued a decision

that bears on this question. In Idaho v. Wright, -——

US. , 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), the

Court held that, for purposes of the Confrontation Clause,

the presence of corroborating evidence may not be con-

sidered in determining the reliability of hearsay testi-

mony. Because the district court relied on corroborating

evidence in admitting D’Annunzio’s statements, we must

determine whether the statements otherwise were prop-

erly admissible.

A two-part test determines whether “incriminating

statements admissible under an exception to the hearsay

rule also meet the requirements of the Confrontation

Clause.” Jd. 110 S.Ct. at 3146 (citing Ohio v. Roberts,

448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597

(1980) ). The prosecution first must show that the de-

clarant was unavailable. Jd. Then it must demonstrate

that the statements have the necessary “indicia of reli-

ability.” Jd. This latter requirement is met, Idaho in-

structs, in one of two ways: either by showing that the

statements “fall{] within a firmly rooted hearsay ex-

ception” or by showing that the statements bear sufficient

guarantees of trustworthiness. Jd.

Applying this standard, we think that D’Annunzio’s

statements were properly admitted. The circumstances

in which D’Annunzio made the statements provided

strong “indicia of reliability.” * First, D’Annunzio issued

the statements voluntarily in the presence of two govern-

ment agents and both of his attorneys. Second, D’An-

nunzio made the statements in accordance with a plea

agreement which required him to be truthful with federal

investigators. Third, the government agents were taking

notes in the presence of D’Annunzio as the statements

were made. Fourth, D’Annunzio could be deemed to

know, in view of the plea agreement, that what he was

saying would be the subject of further investigation—

and confirmation—by the government. Fifth, though the

plea agreement did not require him to do so, D’Annunzio

agreed to record subsequent conversations with the indi-

viduals he had implicated (Senators Tucker and Ellis),

suggesting that he was willing to have the truthfulness

of these statements tested.

This Court’s decision in United States v. Workman,

860 F.2d 140 (4th Cir.1988), cert. denied, 489 U.S. 1078,

109 S.Ct. 1529, 103 L.Ed.2d 834 (1989), is persuasive—

though perhaps not controlling—authority that D’Annun-

zio’s statements should have been admitted. Workman

also involved the statements of a deceased witness that

1 Rule 804(b) (5), a residual provision, is not a traditional hear-

say exception. Cf. Jdaho, 110 S.Ct. at 3147.

were obtained in the course of a plea agreement. And

this Court approved the admission of those statements

under quite similar circumstances. The only relevant dif-

ference between the indicia of reliability in Workman

and in this case is that Workman contained one addi-

tional measure of reliability—a tape recording of the

declarant’s statements. See Workman, 860 F.2d at 142-

46.

This distinction, however, does not compel a different

outcome in this case. Other factors—particularly the

presence of D’Annunzio’s two attorneys—strongly sug-

gest that the statements were trustworthy. Moreover,

the principal danger of the absence of a tape recording—

the accuracy of the hearsay statements—was not chal-

lenged seriously in this case. Charles Little, an agent

with the Internal Revenue Service, testified to his recol-

lection of D’Annunzio’s statements on the basis of notes

he had taken at the meetings with D’Annunzio. Three

other witnesses attended those meetings, two of whom

(D’Annunzio’s attorneys) had interests adverse to those

of the government. Ellis chose not to call any of these

participants to challenge Agent Little’s recollection of

D’Annunzio’s statements. We therefore assume that the

accuracy of the statements was not questioned.

Ellis also contends that the Supreme Court’s decision

in Idaho overrules an aspect of the Workman analysis

upon which the district court relied. He specifically at-

tacks Workman’s statement that a declarant’s willingness

to record conversations with conspirators bears on the

truthfulness of the declarant’s earlier statements. Lan-

guage in Jdaho,’ Ellis claims, indicates that this factor

no longer is relevant to the reliability inquiry because

this particular circumstance did not exist at the time

2 Ellis relies on the following language: “the relevant circum-

stances include only those that surround the making of the state-

ment and that render the declarant particularly worthy of belief.”

Idaho, 110 S.Ct. at 3148.

D’Annunzio made the statements. We do not think, how-

ever, that Jdaho placed a time bar on the circumstances

that may be used to demonstrate the reliability of hear-

say statements. Such a reading of the case would ex-

tend the decision well beyond the question presented (is

corroborating evidence an indicia of reliability?) ; would

conflict with other portions of the opinion, see, e.g.,

Idaho, 110 S.Ct. at 3148 (“we decline to read into the

Confrontation Clause a preconceived and artificial litmus

test”) and id. at 3150 (“courts have considerable leeway

in their consideration of appropriate factors. We there-

fore decline tc endorse a mechanical test for determining

‘particularized guarantees of trustworthiness’ under the

{[Cenfrontation] Clause.”); and would remove from con-

sideration a factor that logically bears on the central

issue under the Confrontation Clause—whether the state-

ments are trustworthy. In our view Jdaho neither di-

rectly nor by implication overruled this aspect of the

Workman analysis.

In sum, the statements had sufficient indicia of reli-

ability to meet the requirements of the Confrontation

Clause. And given the circumstances in which the state-

ments were made, cross-examination would have had only

“marginal” value in this case. Id. at 3149.

Ellis further argues that the district court erred in

allowing the government to discover two of his appoint-

ment books and certain personal notes (collectively, ‘“ap-

pointment books”). We disagree. A Defendant who

testifies waives his Fifth Amendment privilege in all

areas subject to proper cross-examination. Brown v.

United States, 356 U.S. 148, 154-56, 78 S.Ct. 622, 626-27,

2 L.Ed.2d 589 (1958). Proper cross-examination—and

therefore waiver—reaches all subject matters relevant

to the direct examination. See Johnson v. United States,

318 U.S. 189, 195, 63 S.Ct. 549, 552, 87 L.Ed. 704

(1943) (“waiver as to all other relevant facts”) (cita-

C4 es dOue-

}

tion omitted) ; Fed.R.Evid. 611(b). In this instance Ellis

took the stand and testified about the dates, places, and

subject matter of various meetings involved in the alleged

bribery scheme. This testimony related directly to entries

in his appointment books. Ellis also admitted that he

consulted the appointment books to refresh his memory

both before and after meeting with federal agents. The

pertinence of the information in the appointment books

to his direct testimony, together with his reliance on

them to refresh his memory, fully supported the district

court’s decision.’ See United States v. Black, 767 F.2d

1334, 1341 (9th Cir.), cert. denied, 474 U.S. 1022, 106

S.Ct. 574, 88 L.Ed.2d 557 (1985).

III

Ellis next argues that the district court improperly

enhanced his sentence under § 8B1.1(a) and § 2C1.1(b)

(2)(A) of the United States Sentencing Commission,

Guidelines Manual (Guidelines). We review both chal-

lenges, the parties agree, for clear error. See United

States v. Sheffer, 896 F.2d 842, 846 (4th Cir.), cert. de-

nied, U.S. ——, 111 S.Ct. 112, 112 L.Ed.2d 82

(1990).

Section 3Bl.1(a) prescribes a four-level increase in

offense level “{i]f the Defendant was an organizer or

3 Ellis also argues that Rules 16, 17, and 26.2 of the Federal

Rules of Criminal Procedure barred discovery of the appointment

books. The argument suggests—though it does not explicitly state

—that these rules extend a Defendant’s protection from discovery

further than the Fifth Amendment. Because this novel contention

lacks any foundation in either the language of the rules, see, e.g.,

Rule 16(b) (1) and (b) (2), Rule 17(c) and (h), Rule 26.2(a) and

(f), or the case law, see, e.g., United States v. Nobles, 422 US.

225, 235, 95 S.Ct. 2160, 2168, 45 L.Ed.2d 141 (1975) (“Both the

language and history of Rule 16 indicate that it addresses only

pretrial discovery. . . . This hardly suggests any intention that

the Rule would limit the court’s power to order production once

trial has begun.”), we reject it.

leader of a criminal activity that involved five or more

participants or was otherwise extensive.” Relying on the

fact that D’Annunzio, not Ellis, knew the senators nec-

essary to obtain passage of the legislation, Ellis claims

that he did not exercise the requisite degree of control

over the scheme to merit an enhancement. This argu-

ment is unpersuasive. Even if Ellis did rely on D’Annun-

zio’s contacts, and even if D’Annunzio’s contacts were

essential to the scheme, these factors do not necessarily

show that Ellis was merely a peripheral member of the

bribery scheme. Other evidence firmly supported the con-

clusion that Ellis orchestrated the scheme.*

The evidence also supports the court’s finding that the

criminal activity was “extensive.” The scheme involved

four major participants—Ellis, D’Annunzio, and Sena-

tors Tucker and Tonkovich—as well as other lobbyists,

legislators and their staffs. In considering whether an

activity is “otherwise extensive,” a court may consider,

as it did here, “all persons involved during the course of

the entire offense,” even the “unknowing services of many

outsiders.” § 3B1.1, comment. (n. 2).

Ellis challenges all four components of the district

court’s sentencing determination under § 2C1.1(b) (2)

(A).° We need consider only two aspects of that calcula-

*The evidence showed that Ellis supplied the money for the

conspiracy and authorized expenditures to further it; he recruited

members of the conspiracy, i.e., D’Annunzio; and he stood sub-

stantially to benefit from passage of the “takeout” bill. Each of

these factors tends to show a leadership or organizational role in

the crime. See §3B1.1, comment. (n. 3). Cumulatively they sup-

port the factual finding on this point.

5 Section 2C.1.1(b) (2) (A) increases a Defendant’s offense level

“lijf the value of the bribe or the benefit received, or to be

received, in return for the bribe exceeded $2000”. (Emphasis

addea.) The extent of that increase is determined under § 2F1.1

(b) (1). This latter provision authorizes the sentencing judge to

increase the offense level from one to eighteen levels depending

on the anticipated benefit from the crime. In this case the court

tion, however, as they place the benefit to be received

above the $800,000 minimum necessary for an eleven-

level enhancement. Contrary to Ellis’ contention, the dis-

trict court properly included in this calculation the

$500,000 payment that Tri-State promised Ellis if the

bill was passed. Although Tri-State later reneged on this

commitment (apparently after the bill became law), Ellis

testified, and other taped conversations revealed, that he

expected to receive the payment if his “lobbying” efforts

were successful. The evidence also supports the court’s

determination that Ellis’ 20% interest in Tri-State,

amounting to $602,109, was a benefit received from pas-

sage of the “takeout” bill. Again, Ellis’ own testimony

supported the calculation. Passage of the legislation,

Ellis testified, was essential to maintaining Tri-State as

an operating business entity. Further supporting each

of these findings is Ellis’ admission at trial that he

anticipated “mak[ing] millions off of” the bill.

In its cross-appeal, the government makes several ar-

guments to the effect that the court wnder-calculated the

§ 2C1.1 enhancement for benefit received. The district

court, the government claims, took an overly restrictive

view of the guideline by focusing on personal benefit to

the Defendant from the bribery scheme. Instead, the gov-

ernment asserts, the court should have considered the

total profit {over 11 million dollars) to the two race

tracks—Tri-State and Wheeling Downs—from the

scheme.

The government claims that this approach is sanctioned

by language from other provisions of the Guidelines that

focuses on the total loss or harm caused by the offense.

These provisions, however, show only that the drafters of

the Guidelines knew how to prescribe punishment on this

basis, not that they intended to in drafting § 2C1.1.

Equally unavailing is the government’s reliance on the

found that Ellis anticipated making $1,231,636.87, which merited

an eleven-level increase.

10a

principle that a conspirator must answer for his conduct

and for all foreseeable consequences of it. See Pinkerton

v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed.

1489 (1946). Neither the provision itself nor precedent

requires that vicarious liability apply to § 2C1.1 calcula-

tions.

Finally, the government claims that a recent Fourth

Circuit case adopts the government’s theory. In United

States v. Muldoon, 931 F.2d 282, 289 (4th Cir.1991),

the Court suggested in a one-paragraph discussion that

a sentencing court might look at bribe-generated benefits

from a corporate perspective (i.e., net profit), not just

the perspective of the individual responsible for making

the bribe. Muldoon, however, is not controlling. First,

the discussion is dictum. In making its calculation the

Muldoon Court ultimately relied on the amount of the

bribes transmitted by the Defendant, not the benefit de-

rived by the corporation from the bribes. Second, Mul-

doon involved discrete government contracts, for which

there is a reliable measure of the total benefit received—

net profit on the illegally obtained contract. In contrast,

calculating the total benefit received by companies who

profit from improperly passed legislation is a far less

certain endeavor, one that (as this case suggests) is

potentially limitless in reach.

We have reviewed the parties’ other contentions and

also find them to be without merit. Accordingly, the

judgment is

AFFIRMED.

lla

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

Criminal Action No. 2:89-00242

UNITED STATES OF AMERICA

WILLIAM T. ELLIS

MEMORANDUM ORDER

| Entered Oct. 24, 1990]

The defendant, William T. Ellis, was convicted of six

offenses consisting of one count of conspiracy to cause

extortion, two counts of causing extortion and one count

each for violation of RICO, conspiracy to violate RICO

and obstruction of justice. The defendant filed post-

verdict motions seeking, inter alia, a new trial on the

principal ground that the receipt in evidence of state-

ments implicating the defendant, made by the decedent,

Samuel D’Annunzio, was improper.

The defendant was convicted of counts charging the

defendant with an extortion scheme with respect to the

passage of dog track legislation favorable to track own-

ers, of which the defendant was one. Central to the

scheme was the charge that the defendant had come to

D’Annunzio late in the 1987 session of the legislature

when the outcome of the dog track bill was in doubt

and asked for D’Annunzio’s assistance in getting the bill

moving. The defendant is said to have told D’Annunzio

that he had $20,000 for that purpose. D’Annunzio pro-

12a

ceeded to offer $10,000 to former Senator Larry Tucker,

then majority leader of the West Virginia Senate, for

help on the bill, which $10,000 was later given to Tucker

by D’Annunzio.' Similarly, D’Annunzio offered $10,000

in cash and later some computer equipment to former

Senator Dan Tonkovich, then president of the State Sen-

ate, for that same purpose. D’Annunzio’s statements ad-

mitted into evidence related to the pay-off efforts made

to the two senators, including the defendant’s role in

coming to D’Annunzio with $20,000 “to get the bill

moving.”

Before making the statements, D’Annunzio had _ be-

come the subject of an investigation by the United States.

In January, 1988, he entered into a plea agreement under

which he agreed to plead guilty to an information to be

filed charging him with submitting a false and fraudu-

lent tax return in violation of Title 26, United States

Code, Section 7206(1). The plea agreement was dated

January 13, 1988, and signed by the defendant and his

attorney on January 27, 1988. During the time the lan-

guage of the plea agreement was being finalized, D’An-

nunzio on January 21, 1988, and again on January 27,

1988, made a number of statements relating to the in-

volvement of D’Annunzio and the defendant in the ex-

tortion scheme. Present on those two occasions were IRS

Agents Charles Little and Donald Miller and D’Annunzio’s

attorneys, Rudolph DiTrapano and Rebecca Baitty.

The D’Annunzio statements were ultimately admitted

into evidence insofar as they related to the Tucker and

Tonkovich transactions. The court did so in accordance

with the decision of the Fourth Circuit Court of Ap-

peals, binding on this court, in United States v. Work-

man, 860 F.2d 140 (4th Cir. 1988). Since the conclusion

of the trial on May 17, 1990, the validity of the Work-

' Over a year later, Tucker returned the $10,000 to D’Annunzio,

who thereupon returned it to the defendant in an exchange moni-

tored by government agents.

13a

man decision has been called into question by the decision

of the United States Supreme Court on June 27, 1990,

in Idaho v. Wright, 110 S. Ct. 3139.

In Workman, the statement of a decedent who, as a

go-between, had knowingly arranged for the sale of a

stolen truck-load of liquor to the defendant Workman,

was received in evidence. The Fourth Circuit found the

statement admissible under the residual hearsay excep-

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

dence.* Rule 804(b) (5) permits the admissibility of the

declaration of a witness who is unavailable where the

statement is imbued with circumstantial guarantees of

trustworthiness equivalent to that of the, other hearsay

exceptions contained in Rule 804 (b).*

The Fourth Circuit relied on the decedent’s willingness,

one month after the statement was given, to permit

* Rule 804(b)(5) of the Federal Rules of Evidence provides as

follows:

(b) Hearsay exceptions. The following are not excluded by

the hearsay rule if the declarant is unavailable as a witness:

(5) Other exceptions. A statement not specifically covered

by any of the foregoing exceptions but having equivalent cir-

cumstantial guarantees of trustworthiness, if the court deter-

mines that (A) the statement is offered as evidence of a material

fact; (B) the statement is more probative on the point for

which it is offered than any other 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

p.vponent 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, the proponent’s

intention to offer the statement and the particulars of it, in-

cluding the name and address of the declarant.

3 The other four hearsay exceptions contained in Rule &804(b)

are as follows: (1) Former testimony; (2) Dying declaration;

(3} Statement against interest: and (4) Statement of personal or

family history.

l4a

himself to be wired in order that his conversation with

Workman could be monitored by the authorities and

tape-recorded. Although the Fourth Circuit found equiva-

lent circumstantial guarantees of trustworthiness on the

ground that the decedent’s statement constituted an ad-

mission against interest under Rule 804(b) (3), the court

nevertheless found admissibility only under the residual

hearsay exeeption of Rule 804(b) (5).

On the admissibility issue, this case is identical in all

material respects to Workman.* The decedent D’Annun-

zio, several months after giving the statements earlier-

noted in January, 1988, permitted himself to be wired

and his separate conversations with Senator Tucker and

the defendant on multiple occasions to be monitored and

recorded by audiotape and, to a lesser extent, by video-

tape.

Immaterial is the difference in the manner in which

the decedent statements in Workman and this case were

obtained. In Workman, the statement was tape-recorded

at the instance of the declarant’s attorney, was given in

the form of answers to questions posed by the govern-

ment agent, and was taken in the presence as well of

the declarant’s attorney who kept the tape in his posses-

sion. In the instant case, the decedent’s statements, al-

though not tape-recorded, were the subject of notes by

Agent Littie, as well as Agent Miller, the pertinent con-

tent of which has since been essentially agreed to as be-

ing accurate by the decedent’s attorneys who were pres-

ent. At a hearing outside the presence of the jury, the

court received the testimony of Agent Little and the two

attorneys and found the statements attributed to D’An-

nunzio to be accurately reflected by the notes of Agent

Little. The defendant did not challenge the accuracy of

the statements related by Agent Little at trial by call-

4 The instant action also involves a web of corroborating circum-

stances which, prior to Jdaho Vv. Wright, seemed to further strengthen

the basis for admissibility.

ena ii ean

15a

ing either of D’Annunzio’s attorneys or Agent Miller.

As indicated in Idaho v. Wright, no fixed set of proce-

dural prerequisites is imposed as a condition precedent

to admissibility under the Confrontation Clause. Jd. at

3148.

Although the statements by D’Annunzio constituted an

admission against interest to the same extent as did the

decedent’s statement in Workman, this court chose not

to rest equivalency on that ground. The statement of a

cooperating accomplice must be viewed with healthy

skepticism, for the motive to falsify in order to curry

favor with the authorities is often present. See Notes of

Advisory Committee re Rule 804(b) (3); Lee v. Illinois,

476 U.S. 350, 106 S.Ct. 2056, 2061-64 (1986) (a co-

defendant’s confession is presumptively unreliable as to

the passages detailing the defendant’s conduct or cul-

pability because those passages may well be the product

of the codefendant’s desire to shift or spread blame,

curry favor, avenge himself, or divert attention to an-

other). Nevertheless, the cooperation of an accomplice

witness with the authorities to the extent of meeting

with suspects and allowing the meeting to be observed

and the conversation recorded lends a high degree of

trustworthiness to the statement. United States v. West,

074 F.2d 1131, 1137-38 (4th Cir. 1978). Similar cir-

cumstances have been held sufficient to meet the require-

ments of Rule 804(b)‘5) and of the Confrontation

Clause. Id.

In order to satisfy the indicia of reliability and high

level of trustworthiness required by both the Confronta-

tion Clause and Rule 804(b) (5), this court not only

relied upon the willingness of the decedent to demonstrate

his conviction in the truth of his statements by submitting

to the monitoring of his conversations with Senator

Tucker and the defendant, but also found a host of other

corroborating circumstances as outlined by the court in

its findings at trial.

l6a

After the trial was concluded, the Supreme Court in

Idaho v. Wright, in a five to four decision, noted that a

residual hearsay exception, such as that at issue here

under Rule 804(b) (5), is not a firmly rooted hearsay

exception for Confrontation Clause purposes as is, for

example, a dying declaration.’ Jd. at 3147-49.° Conse-

quently, in order to gain admissibility under Rule 804

(b) (5) for Confrontation Clause purposes, there must at

least be a showing of particularized guarantees of trust-

worthiness. Jd. at 3148.

The majority in Wright holds that while “ ‘particu-

larized guarantees of trustworthiness’ must be shown

from the totality of the circumstances, .. . the relevant

circumstances include only those that surround the mak-

5 Other firmly rooted hearsay exceptions would include those

otherwise specified in Rule 804(b) such as former testimony or ad-

mission against interest.

® As stated by the Court in Jdaho v. Wright:

Our precedents have recognized that statements admitted under

a “firmly rooted” hearsay exception are so trustworthy that

adversarial testing would add little to their reliability.

110 S.Ct. at 3149. The Court also noted that:

Admission under a firmly rooted hearsay exception satisfies the

constitutional requirement of reliability because of the weight

accorded longstanding judicial and legislative experience in

assessing the trustworthiness of certain types of out-of-court

statements.

110 S.Ct. at 3147. It was further observed by the Court that:

[I)f the declarant’s truthfulness is so clear from the surround-

ing circumstances that the test of cross-examination would be

of marginal utility, then the hearsay rule does not bar admis-

sion of the statement at trial. The basis for the “excited

utterance” exception, for example, is that such statements are

given under circumstances that eliminate the possibility of

fabrication, coaching, or confabulation, and that therefore the

circumstances surrounding the making of the statement provide

sufficient assurance that the statement is trustworthy and that

cross-examination would be superfluous,

110 S.Ct. at 3149.

17a

ing of the statement and that render the declarant par-

ticularly worthy of belief.” Jd. at 3148. Although the

four dissenters in Wright vigorously insist that corro-

borating circumstances are also to be taken into account

and suggest that any other view will prove unworkable,

the decision in Wright has cast grave doubt over the

continuing vitality of Workman.*

The government urges that the willingness of D’Annun-

zio, like the decedent in Workman, to encounter his

accomplices in monitored conversations constitutes a sur-

rounding circumstance that renders the declarant particu-

larly worthy of belief. Surely D’Annunzio’s demonstration

in this respect renders him particularly worthy of belief.

However, the passage just quoted from Wright should be

considered in light of the majority’s observation that

“{t]o be admissible under the Confrontation Clause, hear-

say evidence . . . must possess indicia of reliability by

virtue of its inherent trustworthiness, not by reference to

other evidence at trial.” Jdaho v. Wright at 3150. It is

also to be considered in light of the reference, in the

majority opinion, to Lee v. Illinois, supra, as indicating

that indicia of reliability is to be found from the circum-

stances surrounding the making of the statement, and

State v. Ryan, 691 P.2d 197 (Wash.1984), as indicating

that such surrounding circumstances do not include sub-

sequent corroboration of the criminal act. Jd. at 3149-50.

It is correct, as the government insists, that the will-

ingness of D’Annunzio to be monitored is not simply

corroboration of the criminal act but graphically demon-

strates his belief in the truth of that which he had

stated. Yet, the decedent’s willingness to be taped in con-

versations with his accomplices was neither shown to have

been promised nor demonstrated until the conversations

* The majority opinion, written by Justice O’Connor, is joined in

by Justices Brennan, Marshall, Stevens and Scalia. The dissenting

opinion, written by Justice Kennedy, is joined in by Chief Justice

Rehinquist and Justices White and Blackmun.

18a

later took place. Thus, the acts of D’Annunzio in sub-

mitting to observation, monitoring and taping did not

comprise a part of the circumstances surrounding the

statements at the time they were made even though those

acts served to make his statements highly trustworthy.

In any event, the untimeliness of the filing of the

defendant’s motion for a new trial leaves the court with-

out jurisdiction to act upon the merits of the motion, for

the reasons noted in Part II below.

II.

As earlier noted, on May 17, 1990, the jury returned

verdicts of guilty against the defendant on six counts and

the verdict form was filed with the clerk of the court.

Thereafter, on June 28, 1990, the court entered the judg-

ment of conviction order. The following day, June 29,

1990, defendant filed his post-verdict motions pursuant to

Rules 29, 33 and 34 of the Federal Rules of Criminal

Procedure. The government opposes the motions on the

grounds, inter alia, that they are untimely because not

filed within seven days of the verdict as required by the

Rules of Criminal Procedure and, as a result, the court

is without jurisdiction to grant the relief sought.. The

defendant has not responded to the government’s claim of

untimeliness and consequent lack of jurisdiction.

As an initial matter, the motions do not properly fit

within the provisions of Rule 29, governing motions for

judgment of acquittal, or Rule 34, governing motions in

arrest of judgment. Moreover, to the extent that the gov-

ernment’s objection relates to the timeliness of defendant’s

motions, the time for making motions under Rules 29 and

34 is essentially the same as that for Rule 33 motions for

new trial. Accordingly, the timeliness of defendant’s post-

trial motions may be determined under Rule 33.

Rule 33 provides in pertinent part:

The court on motion of a defendant may grant a new

trial to that defendant if required in the interest of

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justice. .. . A motion for new trial based on any

{grounds other than the ground of newly discovered

evidence] shall be made within 7 days after verdict

or finding of guilty or within such further time as

the court may fix during the 7-day period.

The time for making a motion under Rule 33 may not be

enlarged “except to the extent and under the conditions

stated” in the rule. Fed. R. Crim. P. 45(b); see also

Mills v. United States, 281 F.2d 736, 741 (4th Cir. 1960).

Additionally, insofar as Rule 33 requires a motion of

the defendant, Rule 47 mandates that such “[a] motion

other than one made during a trial or hearing shall be

in writing unless the court permits it to be made orally.”

Fed. R. Crim. P. 47. A review of the transcript of the

defendant’s trial shows that no oral motion for new trial

was made after the return of the jury verdict. Neither

is there any suggestion that the court permitted or re-

ceived on oral motion at any subsequent time. Conse-

quently, defendant’s motion is not timely unless it was

made in writing in accordance with the time constraints

of Rule 33.

When the defendant’s trial is by jury, the time period

for making a motion under Rule 33 starts to run on the

date the jury verdict is returned. Rayor v. United States,

323 F.2d 519, 520-21 (9th Cir. 1963), cert. denied, 375

U.S. 993 (1964) ; United States v. DeRocco, 320 F.2d 58,

59 (6th Cir. 1963); see United States v. Mitchell, 602

F.2d 636, 688 (4th Cir. 1979). Unless defendant’s motion

is filed within the seven-day period following return of

the jury’s verdict or such other time as may be set by

the court within that seven-day period, the motion is

untimely. Mills, 281 F.2d at 741. An extension of time

made after the seven-day period has expired is itself un-

timely. United States v. Hall, 854 F.2d 1269, 1271-72

(llth Cir. 1988); United States v. Hocking, 841 F.2d

735, 736-87 (7th Cir. 1988). The time restrictions of

~ Rule 33 being jurisdictional, the court is without author-

20a

ity to consider an untimely motion for new trial, United

States v. Miller, 869 F.2d 1418, 1420 (10th Cir. 1989: ;

Hocking, 841 F.2d at 737, or to enlarge the time for

making the motion after the seven-day period prescribed

has expired, Hall, 854 F.2d at 1272.8

Inasmuch as the defendant did not file a written motion

or seek an extension of time for filing such a motion dur-

ing the seven-day period after the jury’s return of its

verdict on May 17, 1990, the post-verdict motions, filed

on June 29, 1990, are untimely under Rule 33 and the

court lacks jurisdiction to consider them.

Accordingly, it is ORDERED that defendant’s post-

verdict motions be, and the same hereby are, denied as

untimely.

The Clerk is directed to forward copies of this order

to the defendant and all counsel of record.

Dated: October 24, 1990

/s/ John T. Copenhaver, Jr.

JOHN T. COPENHAVER, JR.

United States District Judge

8 The decision in Jdaho v. Wright was rendered June 27, 1990.

The court entered judgment on the jury verdict of May 17,1990, on

June 28, 1990, in which the court purported to extend the time

to file post-trial motions to July 9, 1990. The defendant filed his

post-trial motions on June 29, 1990. The court lacked jurisdiction

to extend the time in its order of June 28, 1990, for the reasons

noted herein.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.