# Petition for Writ of Certiorari — Ellis v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1220

## Text

o—

<< :
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

J]

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

i)

)

iv

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

Vv

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

vi

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-

2

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.

3

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

4

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-

5)

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-

ee

6

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

7

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.

8

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

ne

9

(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

|

10

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.

11

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.

12

‘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.

13

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.

14

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

lo

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.

16

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

17

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).

18

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’’).

19

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’).

20

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-

21

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”).

22

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”).

23

(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-

24

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

or

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.

26

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

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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,

2a

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.

I

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

3a

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.

II

A

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

4a

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.

5a

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.

6a

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.

B

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-

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7a

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.

8a

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

9a

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
Za
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.

5

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

19a

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0506%3A1. Public record. Not legal advice.