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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 915

## Text

Pe aNOD. RVING WAT BAS ANWR AR RAY eae ail ethan Sh beg DMMGLING AALS

FILED
I are Vuyrna wy
Larry A. Tucker hereby petitions for a writ of certiorari
+ “ a | r + 71? + © ; , , +} " © +
to review the judgment and opinion of the United States

Court of Appeals for the Fourth Circuit
4

OPINION BELOW

The opinion of the Court of Appeals (App. infra. la-6a)

is not repe rted.

JURISDICTION

}

The judgment of the Court of Appeals as to which re-
view is sought was entered on March 11, 1992. On May
22, 1992, the Chief Justice granted an extension of time
to and including July 9, 1992, within which to file a petition
for a writ of certiorari. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1) (1988).

CONSTITI

TIONAL PROVISION AND FEDERAL
OF EVIDENCE INVOLVED

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t information charging a violation of the Hobbs Act.

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iical Re v + + y tor . 1 hy rant Litt sand
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aliy \ Al - Mai LiL UIidal | bila Liige Aili iid SLO
: ~ nant matlaatan ~ be ae r ~—e \
were not retiected on his come tax return. (U.A
220.AR I , RKPonliiod +} + vy _ ye ~piVoaN fron 7117?
ODI-45) Ie epiiead (nal ali Money rece ea [rom nurs
hnamo intor . ’ rotlortoan ry h } POt1IYN f lor
Ome interestS Was reltie ea On NIs return ederal
Tc ‘ ve) y TT \r) y yr IIT rTHoa Wrepa | QA Y?T y
LS alSO aSKea petitioner about tl source anda anne}
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nA can + rena lOrtarir hiycinecec Yoh LE earn e .
MilUusS anoctu \ ic Way Celcalill WUSLIICS Ut LS IP ilia@lly
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Littl aSACQ PeLLLONer whnetnel NiaQd eCnvaved I
mnre r Tinanc francact nec +c } eo1siator ther
i Wl i Ail CAl Ga ALLOG i bis a Ga i 4 LAL A
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Lit ALLO A MAMA EI he) iit LLVUUUS & LU 4 Giz —
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t e alte e plea he Hot A nargé
Yr ry ani nomar ,? rt ? y ’ , rt ?} ts tr try yr *
if VOYvaAa a VESLILPA ‘ it LaA Call lit
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LLalill Lali a I . Wt Lit aut Val LICIPaleUu
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AL SILLY if COcS Alii UCULITICULIOT Wil LI1¢
“tf y ?} , YY) YY ry? ry\t 1y va! ? Tiry rt -,y vy
ation, tne vernmen Otained testimony [ro UU
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iS Une Writ Ir Une Irsing nome con ul
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Continentai Heaith Care and a participant in a se
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ansaCvllions tna vere a [focus Ol]
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CocLILIC A Wt Tt a ei cai 4 “i \ P|
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, verse p , « , aDpendix h¢ , ed
\ { ‘ } rth { , a. ted here)

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y y ) +} ry , tryry 1 y ly ‘ ¢
U Ap! Le, Loe e grand ry returned a na
ry r+ } y , tix — 4 . \ bay +} ly + Yr? Re
\ al S 4 VV ‘ ULlILS 4 V if i 4 C Lice al LC
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f le Code ne ¢ lY making a Tfaise Statement a
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tla i 'r\ alliu OTIC CUUTIL Ul Wt ury (( fi... AVP 1)
r
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Superseding Indictment was returned on June 21, 1990
,
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WE Cnargead wne Same [our COUNTS aS the earier 1Inal¢
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4 +1 . + 4 + : .
ment, aS well aS two counts of obstruction of justice. Or
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lexi ()¢ tho " +wint . Yet crrant + not) y y YY + ,
JUIV 2/4, LyUJYU, tne aiStrict cou granted petitioner §s Oth
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T ~mYTY) ) yt. an ANNO ‘\T ry) \ ¢ JQ (ry ) tani NY 1 lic
f COmpel perlormance r niS plea agreement and Qi
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missed the two tax counts. (C.A. App. 85) A second
I
\w y Sas Vabbales ] ’ TY Sari y y T Tino , } Y)) | \
supersedaing naictmeé € tating tne wusmissea tax
-"
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unts was returned Dy another grand jury on October I(
} Qi ma TN?) | Y yr) tf + Tat, ldat wor t} Tirct
LYYU, and tnis ldictment Was consolidated witn tne firs
- ’ Indict t me ] ) t!
rI)VY rc ) mmoer vY) ie YY) Tr) pa Y\Y oT & ) . y¢ ly
OUVETSCQUIIY PhUIULITIC Til. (( Y. 2 AY W). 1) ( nce avalyn, LLit
Loft riapt > he ans +) YY) ) “Onl ala’ x1 té« , ’ rmnre +h .«
qgistrict Court aismissead tne two tax counts on tne Same
) .
ry; mena +} y - 4WCrY, A \ QQ | >
proundas as tne earlier dismissal. (C.A. Ppp SI-9zZ) ¢
YY tter then Nroceed Wdoto ao nr trial \a December j 1]QQ()
matter tnen proceeded to a jury UPriai On ecembder 4, Llu.
TT} + +} £ + | \ ]
. 3270 urT|ACc ONYS . 1 sseith 11, mNniante: 1 \ aking a
i K€ ury Was presented WI1tN Tour Counts: (1) Making a
kK YY sabi *, swore (3r 1 ] yey ~ 7) iat) y ;
raise Statement tO a Fredera mana rv, In V1l0latlo
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id [ >. Y L025 (LYS): { } Obstri ClLIOI Ul JUSLICE I
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a } VU Ld ( 4 ~ Lou ) (1933) (oO) eriu \ il ViIOla
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¥ GALI A s » ft ry 1 ly Tyr
une gpovernment lead a .NowvIcCe OF intent to il Mauce WN
‘NOIS ora ne mr stIMOy? wre) \ ked B i i
Lill . siai | ui ¥y € ALiiMVLLY pursuant u\ icu \. 4vitu

804(bK5). (C.A. App. 31) On July 6, counsel for petitioner

+, ’ 9 +, 1h , ,% “2 ahate a ay ,r\1* + ’ “oa +
filed a Motion in Limine seeking to prohibit the use of

tah i ae Eh ot t + —+5 . ~ uP ac ~iNncte . . . ot
Nichols prandg jury testimony as substantive evidence a

tri] " Q ‘ nixr PQ hear) . “11
trial. (C.A. App. 81-83) At a July 23 hearing on pretria!
motions, the court deferred ruing on the government's

request to use Nichols’ grand jury testimony. (C.A. App
85) On November 26, the first day of trial, the court rule
that Nichols’ grand jury testimony was presumptively ad-
missible subject to a showing by the government that the

- . : a ~ ] . . 5 : » - , . | ++
contents were more probative on the point for which it

l

was offered than any other evidence that the government

could reasonably produce. (C.A. App. 89) No evidentiar
hearing was held to establish independently that Nichols
grand jury testimony was reliable. The court made 1
ruling regarding the reliability of the grand jury testimor

(C.A. App. 89, 107-12)

over the objection of defense counsel. The government
made no showing of reliability (C.A. App. 138-39, 148-55)
and the court noted only that testimony ‘before the grand
jury has a degree of trustworthiness and reliability
because it was under oath and being examined by a grar

jury” (CA. App. 1D0).

The admitted testimony contradicted petitioner’s defens«
in connection with a transaction involving petitioner, Ni
chols, Continental Health Care, and a company called
Fricks, Inc. Continental
real estate broker, to assist it in locating property sites
for a nursing home that Continental intended to construct.
(C.A. App. 71, 261-63) Petitioner had also become an em
ployee of Fricks, through which he intended to render
services to Continental and receive compensation as a
method for sheltering his income. (C.A. App. 282-85) In
December of 1983, Nichols delivered to petitioner a check
drawn on Continental’s account in the amount of $75,000,
— both sepeage-d and Continental Srasseded as a loan.

>.A. App. ) In February or March of 1984, Continental
hired witiiiccaiee as a consultant. (C.A. App. 261-63) On
April 12, 1984, petitioner delivered to Nichols a personal
check payable to Continental in the amount of pha as
repayment of the loan. (C.A. App. 320) On that day, he
also presented Nichols with an invoice from Fricks in the
amount of $100,000 for services rendered by petitioner,
and Continental paid $75,000 in partial payment thereof
(C.A. App. 321) Petitioner testified that he believed in
good faith that this arrangement was in compliance with
the tax laws and testified before the grand jury that all

had hired petitioner, a licensed

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the time of the grand jury proceedings, and Ni
chols was afforded the opportunity to confer with
his attorney at any point during his testimony,
y J
Nichols, no doubt, understood from the nature of
tne grand proceedings that the informatior
contained in his testimony would be the subject
of further investigation. The United States
Attorney could have revoked Nichols’ grant of
Immunity were it discovered that Nichols testified
falsely. Because Nichols’ statements before the
grand jury were under oath, false testimony could
have subjected Nichols to prosecution under 1&
U.S.C. 8 1623
App. da
‘ation for an extension of time within which t
yn for a writ of certiorari was timely filed (se
Application No. A-886), and on May 22, 1992, the Chief
Justice signed an order extending the time to and including

Q 7 Q¢

i

July

REASONS FOR GRANTING THE PETITION

‘hh } ,Aiirert An caopant|!\ von vevat aa +h . ° ont ++ *t
This Court has recentiy reyecred tne government S error

‘ + , +» +-\+* ( beyd} Array , , . Qc - “tpi pt
ead tne Controntation ULlause narrowly So as to restrict

, - , " " ,¢ . , > © Y «CC " \ 4 ace ~“*. ' »%
its role In controlling the admission of nearsay testimony,

The fundamental rght protected by the Confrontation
Clause, under even the most restrictive interpretation ot
the Sixth Amendment, is to prohibit the admission of a
hearsay statement “‘where the statement sought to be ad
mitted was in the character of an er parte affidavit, i.

where tne circumstances surrounaing tne out-ot-court
Statement s utterance suggest that the statement has bee!
made tor the principal purpose of accusing or incriminating
the defendant.” White v. Illinois, 112 S. Ct. 736, 740-41

7TQQ") That Oy - > ta] “+ ni + } ¢ . } + “ t . 1) ] ry
fivvas nat Tundamental rignt Nas Deen grotesquely) V10-

+ | 1, F > oY ‘or ’ + . . IT > Tt ad ‘ .
ated DV the government S prosecution of petitioner based
so + , , > > fT . Q “te > . tf . ‘ ‘ , :
n the admission of hearsay statements of a dead witness

In contrast to the Jurisprudence of the bulk of the other
in the Fourth Circuit a person can be convicted
on the basis of testimony given by an immunized co-con-
spirator, under the guidance -f the prosecutor, before a
grand jury, with no opportunity for the defendant to cross
jury to make a cred-
by the Fourth Cir
cult to be badges of reliability—a grant of immunity and
testimony before a grand jury under oath—have not been
viewed as indicators of credibility by other circuits. Other
circuits have more properly viewed the grant of immunity
and the grand jury setting as undermining credibility, and
have found the presence of an oath irrelevant to the de-
termination of credibility. A witness who seeks immunity
has a motive to fabricate in order to curry favor with the
prosecutor. The grand jury is an accusatory body con-
trolled by the petitioner’s adversary, the prosecutor, who
has no interest or obligation to expose weaknesses in his
her case. Basically, the Fourth Circuit takes the position

)

examine his accuser or for the petit }

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inility assessment. The factors deemed

tinat n

+ + . « >
tnat not only ado dead men

tell no lies, but that dead men

told no hes while tney were alive, provided that they were

immunized grand jury witnesses.

circuits. It con S with the principles enunciated recently,
by this Court in United States v. Salerno, 60 U.S.L.W.

4650 (U.S. June 19, 1992) (No. 91-872). And it conflicts

. . : . : : fs . . ‘)
woth th Yr) ¢ tal STE aval io + tho : +} tat, | 1? ’
W1tn tne lundamenta! principles OT tne ( ONTrontvavlon ( ldUst
‘ “‘nrete hy thj urt. If the ntrontat laijce
as interpre ted Vy tnis ( Ourt L LULit ( ONnTrontvaticn ( laut
, .
‘ ‘ ‘ sir? } - ? | - y * ? oT yy ] mH] ? an) tr « y .
means anytning, Il MuUSt Mean CTNat Crucial testimony Can
+ } nttoar thrnricr +} APC. tanto + t YT
no be otTereda tnroug! ne nearsay StatementS OI dead
: . : . . . .
‘ , > . ‘ +? > ‘ . ‘ + “ ‘
Witnesses wnom tne dagefendagant never nad the opportunity
ri
+ . fy + » +) , . a
LO CONIrONt nor ne jury to see
1. The admission int EF Naeem en eee —
A Lit admission 1LiL’ CViIUe}ice eB | MULT"ULITCUUI SLALO
tf + , ] | . ha “+* + y ? >
ne , } AVa1IA ) ne , 9 ) )
mentsS OI an unavalilabie witness deprives a defendan
: ig 2p 1 os over .
t CT + TITS warn Tt; ‘ ‘mort ary Troitr { ae r
tne most errTe; LIV ¢ Way LO aSCertain Lructn. Wy UTALMNS
. , [LO ™ .
‘ ( S04 9 4¢ 7 ¢ 7 .
Sowders, 449 U.S. 341, 349 (1981); see also 5 John H.

Wigmore, BE “dence in Trials it Common La i § 1367 at
32 (Chadbourn rev. 1974) (“‘[Cross examination] is beyond
any douot the greatest legal engine ever invented for the
discovery of truth.’’). In the present case, petitioner w:

deprived of his right to cross-examine a crucial witness

aihdil

}

against him. Un-cross-examined statements are usually
admissible under the Federal
bition against hearsay. Fed. R. Evid. 802.

The hearsay rules are ‘‘generally designed t

similar values’ as the Confrontation Clause—that is. a

i

—
~
>

>

defendant’s right to cross-examine adverse witnesses. Cal
fornia v. Green, 399 U.S. 149, 155 (1970). The primary
justification for the general statutory rule prohibiting hear-
say is the danger resulting from the litigant’s lack of op-
portunity to test the trustworthiness and accuracy of
statements of an absent declarant by cross-examination.
Anderson v. United States, 417 U.S. 211, 220 (1974). Un-
derlying the prohibition of hearsay is the theory that ‘‘the
many possible sources of inaccuracy and untrustworthiness
which may lie underneath the bare untested assertion of

197 U.S. 805, 110 S. Ct. 3139, 3149 (1990) (quoting Wig
more, supra § 1420, at 251); Wigmore. supra § 1362. at
oO (Nearsay rule is ‘‘a rule rejecting assertions. offered tes
timonially which nave not Deen In Some Wavy subiected to
the test of cross-examination’’); see also Bridges v. Wiro
26 U.S. 185 7¢ (1945) (‘the theory o the Hearsay rule
S tnat in extrajyudica Statement Ss re ected because
was made ut of Court | in absent person not subier
{ Cross-examinat !

Hearsay is admissible on] rcumstances whe the
testimony meets stringent tests of trustworthiness. Ex
ceptions to tne hearsa\ rules are provided for hearsa\ tna
is of such a “‘specified quality’’ that its admission is pref
erable to complete OSS oft the Witness evidence See Ked
R. Evid. 804 advisory committee's note. These special] cat
egories of hearsay are enumerated in Rules 803 and 804
The “‘eatch-all”” or “residual’’ hearsay exception found ir
Rule 804(bX5) allows the admission of hearsa\ only if it
constitutes “‘a statemen {that 1S} not specifically covered
Oy any of the [other] exceptions but ha[s] comparable cir
cumstantial guarantees of trustworthiness.’ See lU'y/ted
States Donlon. 909 F 2d 650, 654 (1st Cir 1990): United

otal
494
944, 954 (7th

341. 346 (3d

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1082

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(1990):

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also governed by the

Amendment.

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urt statemen
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e Federal Ru

‘onfrontation

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les of Evidence appl)
1d criminal cases, only criminal cases are

I

Clause a) = + — , - ‘ \ ‘
Wright held that Rule & 4(bX5) is not a firmly r ted hearsay e)
ception, and therefore, any hearsay admitted under that rule must bear
“particularized guarantees of trustworthiness” to pass constitutiona
+ . | ‘ Ys 4 ") wd \" . e : )
muster.’ 110 8. at 3147-48. Nichols’ testimony was admitted unde:

Rule 804(b\5)

Immunity. The very testimony of petitioner that gave rise
to his false statement conviction was likewise given before
the grand jury and pursuant to a plea agreement. Although
the government contends petitioner’s testimony was false.
by the standards it defends, this same testimony would be
admissible hearsay in another case if petitioner had been
unavailable.‘ Indeed, if petitioner had predeceased Nichols,
petiticner’s grand jury testimony, which provided the basis
for his false statement conviction, would have beer
nissible hearsay, presumptively reliable as a matter of law.
as proof that Nichols had committed perjury.

ee

2. The Fourth Circuit’s holding in the instant case is
Inconsistent with the logic of this Court’s recent decision
in United States v. Salerno. 60 U.S.L7W. 4650 (U.S. June
19, 1992) (No. 91-87
of Federal Rule of Evidence 804(b\(1), which provides for
the admission of prior testimony of an unavailable witness
only if the party against whom the testimony is offered
at trial had an opportunity and motive to develop the
testimony by direct, cross, or redirect examination. In Sa/

2). Salerno involved the construction

erno, two immunized witnesses testified before a grand
jury and exculpated the defendants. At trial the witnesses
were deemed unavailable because of their assertion of the
privilege against self-incrimination. The defense sought to
offer their grand jury testimony. Although the government
had been afforded the opportunity to examine the wit-
nesses before the grand jury, the Court ruled that the
testimony could not be admitted under Rule 804(b\(1) un-
less the defense first proved that the prosecution had a
similar motive before the grand jury as it had at trial. 60
U.S.L.W. at 4651-52. The Court remanded for consider-
ation of the question of motive.

‘The Fourth Circuit’s rationale for ruling that Nichols’ hearsay state-
ment was admissible is quoted supra page 7. Everything the court said
about Nichols’ testimony is equally applicable to petitioner's grand jury
testimony. Indeed, if one were to substitute petitioner's name for Nj

cnols name in the quotation, the statemerit would be equally Valld

strictly, this Court recognized that Congress had generall:
prohibited the admission of hearsay and had ‘‘made a care
ful judgment as to what hearsay may come into evidence

\
and what may not. To respect 1tS determination, we n

YIICF
LU

mt YAO th 11" ee | tT} if y ve! Thi s IPT mY)? ¢
eniorece Lit words Lilia L \ CllaC ved, 1s OUT | CalllloO
) ) ,°
alt 17 mNntiarr 17110 , , " 1¢ ee . orht
aiter evidaentlar rules merely bDecause litigants mignt prs
fer 1iff rent Y’1} ) 1?’ ¢ T an ae 291 y P| ) ‘ Id f
€ CIiLié Clit Uslces i a Wal licCuld LIAGSS U Cancts d A
407-4
4HD 1]

r > bs +’ }} ? ? sé ] + £ + |

[This Court’s adherence to ne literal terms oO! tne nea

4 , RO . . — awl 7 + ye + + +} , “\Q t +
say exceptions 1S 1n Stark contrast to the approach of th
. 4 4 4

Fourth Circuit. Ordinarily, the admission of prior tes
. *) 1} . } a } Re
mony of unavailable witnesses, such as Nichols, would have

, , 1 hy 14] } ' “t] 172]

rane © | s s i |
rrann 1}
4 Gai A Al

, TerestT iy
y > NwN
wart Lilli
“OY +
reports }
‘ 740
L4U, 1406

Was
) é |
Th >

+} . rl ‘ ‘ . -
‘ L1reu nas nsister Vy neiad Nat a W 1eSS
y ,» » + + - + + YY) YY y Tt. Yr ) Yr) > ? ee a
WUlSUd a or} i Ui i wy” ‘ a Wicd Va
. ,?
PO ‘ Thor y + + ae + 1+ tyr hye 4 J
re Inst \ \ al Plt LU Lesull\ Li ULIILUIIY Oe€ { ¢
he if > | 2 Pie = .¢ “C91 tatomant + va ‘ va. , y ,
OI nearsa\ tatementS OF aeceasedad W eSS Dé
7 Tr? yy TT? y y TaTreary nT ry ; 1Y > reoya?r
ny ne! I) ys SLALETTIE LS laGe acCCOTraad ICt
“ys + ; J ‘ Le Os 2) - c) T
agreement) €? fenied, 60 U.S.L.W. 3873 (U.S
7 ) y QO? 7 2) as 1” P mm 4
719° 4+} ‘ . 1O"? a tt5 yy —" ae , tT
Lidsd (4Ul ( I 191d) (altirming aam isSsion Ol
. + + . 4 1D } ++ } 91} ae |
y testimony Or aqeceasead witness vecause S
ramnce rQ\ . + >t 1a fro yrth ‘a ; ric nmNont
1 Palning favors avoid Turtner imprisonment
»\ Yr ’ ry T 1" ) } ) Treary \ PIIrTATA } ry)
every incentive O De extremely accurate 1n Nis
Set Lis Unite otates Workma? 860 F.2d
4+} . \ + } + + + +
{ ) ad y ) ad > > ‘ YY) Y) )
$6 (4th ¢ LYSS) (tape-recorded statement ol

ge LOTS (1989)

mr) \ . 2° .
ino mrTrh IPI he ala N11
. £he swNINtN LUlTCult NaS aiSo Salk

mmunity makes hearsay more reliable. Barke

, 761 F.2d 13896, 1401 (9th Cir. 1985) (fact that
sel at preliminary he reminded witness that his
of immunity did not cover perjury added to reliability

+ . itr rn,r nmmmnarr } QYr??Y 1 rToactiry rt . abrala wre ‘
I witness preliminary nearing testimony, whnicn was aad
ry +f ’ +f try Tor no * 1trY hon 1; 1 : ha ¥ ¥
nittead at trial arte le@ WiltnesSS Nad aled), cert. denied,
a" A . 7 ~~ 1Q RA+h +} x, >t} } N +}, % oa

, LO mY ann iY } re}
tit | ». LU0DS ee So) Bi Ll LLit OUTIL alld ‘ biivil ( if VLUl

PIC) Selene: Tt Tinat Th Tale nat , ICY tT fT Te YY
geciSlons Suggest that tnose courts vdelleve tnat since !
YY mort ANT Y ) qr TY) YT} y° y1}1¥° Tr? > wT, . eT

UNnILY ana plea agpreeme s require tne witness to testiIr\
ter rthFt ] y a Y) MIWINGE tT TImMonNn Yr Tar ry ) T Y y

ULIILULIY, VEeErSOTIIS YPivilly ico m i\ U statements WU

I I

} bane T “eH ocr ryyNean?r YY) "© | 1 r > Trc#ry \y
suan LO SUuUCNnN agreements more ilKely to De TrUuSTW
+} -, y +O - + ' Sale +} ss} .Y Fh 4 + thy i. a }

( \ LO iCal Ul IUSTTY Cfit VEeTI©@Llit OL LUDell lal Pall
. ~~? . > + , i ¥ + >? ~. wr Kr ) Y ,~*?} ‘
Contrary t ne holdings of the Fourth and Ninth Cir
. .

The he * y* + +} t > y er ++ ‘, Th + Tio ’
CUlLS, SECVETai OL OUNe! IrCult laVe nat tne ex

+ va! + 9 rrant rm rmyrnit Yr 9 « hHarcvrain ‘Sa at .
stence OI a grant OI immunity or a piea Dargain indicates
, y ] } s+. + +} + Tiry mn ssf lh Y) ¥ + ]
sammalseahsis: ~— ; ’ Than 7 — , lan
UlLITClMIaVIIILY Ul LLi¢ LE SULITTIOTLY SiLice iW Li©€ 1] Immunity. piea
‘ Yraoo soOonte y 1? Yr) NIYFKrINNES TOU y: wth th beaut vale"
agreements or even currying favor witn tne law enforce-
mart TT mNaAIC I1)} ~T« YTial like r |
ment oOTmielaiS 18S invoiveda, tnere 1S subdStantial IKEINOOa
hat the ctatement ic celf-cervinge ’’ ] nited at , F J
Lllal LII© SLALECINICIIU Is Seili-sel vill} ( eu LLES €tid-

= 4 , Oe. ) 2) ") + . | ~ )

» 1 4 2 bh y 1 ¢ rOITaArCcINnae -« —
na? (Ol F.Z2G4 3O6U, 35d ((TN ( ivdso) (reversing: admis

and jury es NOonY); Crniled states riley, D8] F 2d
»4 I- Yow 1 ¢ ye aC % ‘ ) —— “y * . +-—+
O41, JDU (6d Ul LY (3) (reversing admission of prior State
I
+ - ) + 4 " , vy ~+ ‘ > 1; ’ +], at 2"
ment to government). These courts have implicitly re
7O +} Qt " P " ) ty - ] 19 ¢ ry > LOnt ‘
Opnizead tna In an immunity or plea agreement, a
ay Valbhi - ’ ‘ata lls se} 177 , , + 4 + , + ,Y
prosecutor essentiall\ UUYS tne witness testimony afte)
~) ‘ Ti9St) ‘ + ) + Qtr « 1O )
a series OI negotiations, and the price tnat a witness is
} + >We + tTOr thy tocty) i 7 on . tho son hater 4
ie *O eXact Tor this testimony depends on the quality of
the “produ tnat ne can deliver nus, the witness has
> - Y y > > +> + | v ’ Wn ] .
(noting lat grand jury testimony given under a
‘ . + + y y ) a lorh + } " Nragwoa « _ . + se + s]
grant Of immunity mignt encourage a witness to ‘‘embhe!]
'2) - . ¢-] o- , 7
} } ct . ‘ 4 : “\, that
WSn his Story), Bailey, 581 F.2d at 350 (observing tha
" an ae tha . > SL . - + ¢ ; f "07>
since tne Statement was made auring hegyotiations for re
ee '
| + ? Jak ° > 7 iat. ‘Toh , + , . it
GUuUCLION OI Cnarges, it was less reilabdie),. Because tne wit
, Hele t h afte Ya T | Ȣ
LeStimony mS s€ii-incverest, nis perceiver needa to please
: I
$ + } } ¢ } ; 1}
¥ ) ad . 7 ad ‘ ,) ) > a ,} , TT ‘ i 77 ‘a \) ‘ "
Li11¢ prosec ULOY and iliS NOpe LUI lenien¢ . all undermine
© ae eee Y ’ a Q\ O48 « 22n
nis credipiity oee Gomez-Lemos. 939 F.2d at 550 (OD
Son y Y nor tr 7 mAIICO th ) trvty “co nan aw "0
serving tnat y VECause tne witnesses had entered
B t

ttirming
Ahi LLL

plea agreements prior to their grand jury testimony ‘‘does
t lessen the likelihood that they would want to curry
favor with the government, avenge themselves, or spread
the blame by implicating [the] defendant’’); Snyder, 872
F.2d at 1356 (observing that ‘‘[t]estimony obtained throug}

currving favor with the law enforcement officials’ ma‘

no

Wa

indeed be self-serving and potentially unreliable’).

Several courts have similarly held that the absence
a grant of immunity or plea agreement makes a hearsa\
statement more reliable. See United States v. Donlon, 909
F.2d 650, 654 (1st Cir. 1990) (affirming admission of nor
immunized grand jury testimony and observing that ths
fact that witness did not testify under a grant of immunit
adds to the reliability of the testimony); United States
Vernor, 902 F.2d 1182, 1188 (Sth Cir.) (affirming admission
of accomplice’s statement to authorities and observing
the fact that witness did not enter into plea bargaining
and did not give statements pursuant to a plea a
added to reliability of statements), cert. denied, 1
301 (1990); United States v. Zannino. 895 F.2d 1. 7 (lst
Cir.) (affirming admission of previous trial testimony of
deceased witness and observing that the fact that witness
appeared without the protection of immunity added to r
liability of testimony), cert. denied, 494 U.S. 1082 (1990)
United States v. Doerr, 886 F.2d 944, 956 (7th Cir. 1989)

(affirming admission of grand jury testimony and observing

"In the present case, Nichols actually testified before the g
twice, the first time without immunity, and the second time )
to an immunity agreement. The tenor of his testimony noticeal
a 5 .
changed from his first to his second appearance. Notably, his se

testimony contradicts his first testimony in key areas, the second beir
much more favorable to the prosecutor's case. For example, Nich
February 1 explanation of the petitioner-Continental Health Care-Frick
transaction and relationship (C.A. App. 72-75) was markedly different
than his January 9 explanation (C.A. App. 57-64). In his January tes
timony, Nichols testified that Tucker did not work for any of Nichols
entities besides Continental (C.A. App. 56), but in February he direct

contradicted that position (C.A. App. 76)

i
mony Of unavailable witness), cert. denied, 111 S. (

est) \ | ‘
Q07)5 19390 B eC911Se the witn -c¢ «6UhadA 1Ot heen rrant
OUD (LYYQ) 2eCause tne witness nad not been orante
> 1? 1 +} ) . yt > . ) / that ) { -— . . C
mMmmunity, the court conciuded tnat he had more reas
LO exaggerate the role Ol tne defendant in the Crime al

lay his own. Jd.

on
a

al 020-24. Only ten months before

; Vit , 11 th. ‘ah, fant
Ircult found that tne fact

Blackmar. Feds ri] day ry Practice and Instructions

I
§ 17.04, at 529 (8d ed. 1977); see Committee on Pattern
Jury Instructions, District Judges Ass'n of the Sixth Cir-

cult, Pattern Criminal Jury Instructions, Instruction 7.07,

n

at 152 (1991 ed.) Gury should consider immunized testi-
mony ‘‘with more caution than the testimony of other wit-
notre Committee on Model Jury Instructions, Ninth
Circuit, Manual of Model Criminal Jury Instructions for
the Ninth Circuit, Instruction 4.09, at 59 (1992 ed.) (jury
should consider whether immunized testimony ‘‘may have
been influenced by the government’s promise of immunity
given in exchange for it, and ... should consider that
testimony with greater = than that of ordinary wit-
nesses’’); Committee on Pattern Jury Instructions, Distric
Judges Ass’n, Fifth Circuit, Pattern Jury Instructions—
Criminal Cases, sirighrcat 1.15, at 26 (1990 ed.) (test
mony of immunized witness ‘‘must always be examined
and weighed by the jury with greater care and caution
than the testimony of ordinary witnesses’’); Federal Ju-
ese Center Committee to Study Criminal Jury Instruc
ions. Pattern Criminal Jury Instructions, Instruction 24.
at 39 (1982) (immunized testimony should be considered
with more caution than other testimony, as immunized
witness may have had reason to fabricate stories or ex-
aggerate the conduct of others in order to strike a fa-
vorable bargain with the government for his case): see also
Committee on Model Criminal Jury Instructions Within th
Eighth Circuit, Manual of Model Criminal Jury fate.
trons for the District Courts of the Eighth Circu it, Instruc-
tion 4.04, at 88 (1989 rev. ed.) (whether immuni: be
testimony was influenced by government’s promise is for
jury to decide).:

‘Practitioners also recognize the inherent unreliability of immunized
testimony and indicate that such testimony is particularly vulnerable
to damaging cross-examination. See Moritz and Harris, supra, 14 Litig

No. 1, at 32 (immunity and cooperation agreements are ‘‘grist for the

Yr FhC re .ah) . ean” } nha sn. : ; if 9 ‘ rm. .
cross-examiner's mill’’); Osterhoudt, supra, 16 Litig. No. 2, at 9 (‘Tac

ek

The Courts of Appeals have seized upon two conflicting
views of the practical realities of the Immunity and plea
bargaining processes in developing their contradictory ap-
proaches to the trustworthiness issue. The Fourth, Ninth,
and Eleventh (Lang) Circuits have determined that since
provisions in immunity and plea agreements require the
witness, aS a condition to the immunity or leniency, to
provide truthful information or testimony, the witness is
less likely to be untruthful for fear of losing the benefit
for which he bargained. Thus. they conclude that the ex-
istence of an Immunity or plea agreement adds to the
trustworthiness of the testimony or statements. In con-
trast, the First, Third, Fifth, Sixth. Seventh, and Eleventh
(Fernandez) Circuits have determined that a witness who
is testifying or being interviewed pursuant to an immunity
or plea agreement is less concerned with telling the truth
than with providing information that he believes will please
the prosecutor. Thus, these circuits have concluded that
the existence of an immunity or plea agreement renders
testimony or statements less trustworthy. The Court should
grant certiorari to resolve this disagreement among the
circuits. Prosecutors rely heavily on testimony obtained
pursuant to immunity and plea agreements. and the ad-
mission of this type of hearsay testimony implicates the
fundamental rights to confrontation and cross-examination

under the Sixth Amendment.

4. The circuits are also divided on whether testimony
is more likely to be trustworthy if it is given before a
grand jury and under oath. The Fourth Circuit held that
Nichols’ testimony was reliable because it was given before
a grand jury and under oath. The First and Eighth Circuits
have similarly held that such testimony is more likely to
be trustworthy than other testimony. However, these de-

tically, prosecutors prefer that their trial witnesses testify without an\

favors or inducements, such as immunity at the grand jury stage’,
since such favors make the witness more vulnerable to cross-exami

renee See ssessssasneenpeesnsiaisesssnsnstenses ee

nation)

cisions conflict with other Courts of Appeals’ decisions
holding that testimony is no more likely to be trustworthy
if given voluntarily before a grand jury and under oat!

>
Further, the Fourth Circuit’s decision flies in the face of

conventional wisdom that grand jury testimony, by its na

+ 1c + roeccarilty: . ir than } ~ . f
ture, 1S not necesSsaruy more reliable than otner out-o!-

court Statements

In United States v. McCall, the Fourth Circuit found
that ‘‘ ‘accouterments’ of grand jury proceedings, bolstered
by corroborative trial evidence ... can perform an equally
protective role for the truth-finding process as dc con-
frontation procedures.’ 740 F.2d 1331, 1342 (4th Cir. 1984)
(reversing decision to admit at trial affidavit of unavailable
witness). The Fourth Circuit stated that in three of
prior decisions the fact that the hearsay involved had been

secnreed i In a gre nd jury preceeding, rather ha n some less
; a] . }; Thenced olrt’c h th: ,
formal proceeding, iniluenced the court’s hold ling (nat the
. . . 2 % . — ¢ }
testimony was admissible under the Sixth Amendment.

oe Pe eee eos a gen w
McCall, 740 F.2d at 1341 (citing United States v. Murphy,

696 F.2d 282 (4th Cir. 1982), United States v. Garner, 574
F.2d 1141 (4th Cir.). cert. denied, 489 U.S. 9386 (1978)

The Eighth Circuit in United States v. Carlson held that
the unavailable witness’ grand jury testimony possessed

‘strong indication{s] of reliability’’ because it was given

under oath. 547 F.2d 1346, 135 8th Cir. 1976), cert.
denied. 431 U.S. 914 (1977). In United States v. Donlon,

the First Circuit similarly included the fact that grand jury
testimony was given under oath as one of the factors that
indicated the reliability of the testimony. 909 F.2d 650,
654 (1st Cir. 1990) (affirming admission at trial of grand
jury testimony of unavailable witness).

Several other Courts of Appeals have held that the fact
that a witness gives testimony under oath in the “rela-
tively solemn setting’’ of a grand jury does not guarantee
the trustworthiness of their statements implicating a
defendant. United States v. Gomez-Lemos, 939 F.2d 326,

7 qv y * } ~

Q9 OA - ( ] 1+} a ( OQ) 7 eer ne ] —
892 F.2d 976, 981 (11th Cir. 1989) (ordinary grand ju
t + rt + r ic +} ] > 1? »Y NT rhs 1]
estimony not admMmIsSSIDIe€ under LaLlLUllall

+} ; ] t tT T +}
q ‘ay y ) P ] ¢ x(117¢ > ( ) T
as oath alone is inadequate to meet the
. PI1t7A | , 7 > t« +305) ( \« ary f
equivalent circumstantial ouarantees Ul

Toh ag ] An Aas Ee | Me ¥
Tol )P7 Jad HW ; F.2d (0d (oo (ot!
T } » | -"
Cir. J., concurring’) (merely because
‘ +} y st 7 ‘ ran ] i ih an Oi | > + nr > + ih
Oatn Low & re a oranda 1u y UUGDS not pio l€ ni
+ y > 17 +1, a+ * ed , + yer? "
antee of trustworthiness’’). Because jury is an
er parte nonaaversarilai proceeding control ol
> y " + + + + 1 -
ne prose O} tne daeftendant 1s not atioraea an oppor
+ 7 + ~ + } + + +}
lY ity ) co any W') ness Y nis LY stwortniness OY al \
: ; — :
; to } + ’ «2 tryithti C Pr aera j ? a 4
S LLC r € nN )Y iLO LCrutniuine ~ Or Al ( uracy nited Pe it
. - pe wh), 5" S) 19O£ Sore Pr? » | - 1¢ ( th at —
Snyder, 872 F.2d 1351, 1855 (7th Cir. 1989) (that evi
ie ‘oO ws OV RT ays "a ¢ ‘ ang 1% ¢ as Wie fT TS
Uc ict “ a> — VeT) Wt Ore a prand jury ad 1s LITTIE LU AL.
. rahiliti mro n 51th 1 fo 1. ba ) Qn" ) ,} ' }
reilabl i y DSIilICe 1i€ ltne! dé it ndant nor anyone on his OeCNall
‘ + +} rye ee 2h - > , as \¢ +h ro -, ,t = + . ¢ — ~— a , ‘ Oo , ++ vo" , . + + a 2 oa +inrx0 ‘1 > 3 > + |
CUOUIC lace id ii ne ala not Lesuly LIIUS, wnetner ne LOIG
’ vy. £6 ‘ > v 4 r PD - 7 +
es JvCLlirIcy { ic Re 5 ] 4 ] E *¢ I Jat 4 4 lt | {y
\’ 7 e oc ) _ ] 7 « a,’
‘Oo. 1, at 26, 31 (Fall 1989): Thomas P. § tobert D. Nacl
¢ . > j _" ” | *} Tr} ¥ ” 4 ~ Tm -
man, /f It Ain’t Broke, Don’t Fix It Why The fzrand Jury s Accusatory
: f : he , ‘ e ; ‘ ‘iS i
F inctior Should Not Be Changed io J Crin L aw riminoiogy 104%
OA‘ int ( 4 1} * Pp _ 7 “ » } y it} ]
1049 (Winter 1984); Faust F. Rossi, The Silent Revolution. 9 Litig. Ne
9 ‘ 12 lw Q
2, at 13, 18 (Winter 1983)
One grand juror briefly questioned Nichols, but did not cha leng
any or nis testimony. (C.A. App. 64)

>
> + 2 r 24 — ") ~~ + +7 - mneor

ness re aqa prepared . Stat ement anda aliirm 1tS frutn under!
) ’ , ’ ’ 7 = + }

Oatn. ee, 6... [ nited States - Mite hell. a F.2d 248,

OL4 +) ‘) ( = #5 . —Otr > 1) nig
£63 (otn Cir. 1985) (affirming propriety of prosecutor s
|

awn witnoccoa an sar hof “O P .17°% }
LAL LIL Ul ay Ing WITNE SsS€ES appeal DeTOre orand ury anda
It ;
} t T t

’ y , ¢ “17/ > -
simply adopt portions of a Drug Enforcement Age re-

. ‘

+

: i , -
“ haa tia + lear + “ty ~ir > +f 4
Ort ratner than present live testimony), cert. denied. 4/6

124 (190R4 ther ce hav } ‘
.»». 1184 (1986). Anothe technique IS Naving the prose-

] | } . }
cutor ask only leading questions, so that the prosecutor
elfectively testifies, with the witness assenting to the pros-
ete sic 2PTtIP ic ¢ ] ran a+ .
ecutor’s statements. This tactic is employed so that the

witness will not make a must ake.”’ In the present case,
the eekeuon frequently utilized leading questions during
Nichols’ second grand jury testimony, eliciting mo stly yes-
or-no answers from Nichols throughout the proceeding.
C.A. App. 71-79)

If the testimony of a government witness has ‘‘problem
areas,’ a prosecutor will shape his examination to steer
clear of those problems, if possible. Alternatively, the pros-
ecutor may make the testimony so fuzzy that credibility

Sn yder. 872

foe

t 1273: United States

.

By its reliance on the fact that Nichols’ testimony was
given before a grand jury under oath as an indicator of
reliability, the Fourth Circuit espouses an approach that
contradicts the holdings of other Courts of Appeals and
ignores the realities of the grand jury system. The Court
should grant certiorari] to resolve the conflict between th«
Fourth Circuit and the other circuits concerning the effect

t

of the grand jury dynamics on the reliability of testimony

5. Though ‘‘the hearsay rules and the Confrontation
Clause are generally designed to protect similar values,’
the two are not precisely congruent, and this Court has
found on more than one occasion a violation of confron
tation values even though the statements were arguabl\
admissible under a hearsay exception. California v. Green,
399 U.S. 149, 155-57 (1970) (citing Barber v. Page, 390
U.S. 719 (1968) and Pointer v. Texas, 380 U.S. 400 (1965))
However, neither this Court, nor any of the Courts of
Appeals has ever clearly outlined the distinction between
the factors providing ‘‘circumstantial guarantees of trust
worthiness’’—the Rule 804(b)(5) test—and factors providing
‘‘particularized guarantees of trustworthiness’’—the Con

frontation Clause test

This Court has twice addressed the meaning of ‘“‘par
ticularized guarantees of trustworthiness” in the conte
of statements admitted under Rule 804(byW5). Idaho
Wright, 110 S. Ct. 3139 (1990); Lee v. Illinois, 476 U.S.
930 (1986). In both cases, the Court determined that state
ments which were admissible under Rule 804(b\5) lacked
the ‘“‘particularized guarantees of trustworthiness’ re
quired by the Confrontation Clause. Lee stated that the
‘‘truthfinding function of the Confrontation Clause is
uniquely threatened when an accomplice’s confession is
sought to be introduced against a criminal defendant with
out the benefit of cross-examination.” 476 U.S. at 541.
Wright further explained that “ ‘particularized guarantees
of trustworthiness’ must be shown from the totality of the

L

circumstances, but we think the relevant circumstances

y TOL ’ t >) ‘ t> if lr? 1! | may’ ry \ ns ) ‘ ‘
rye’? f i! (] of, if reer fer? rye 1¢ y i] f | inf ] i? 1 yt } ‘
benef LIQ S. Ct. at 3148. In these case the Court or
examined. the tatement for Controntation | e pi
Pose Oller me? NO { nt nt [ A eal fact } lerery ryi?
idn bilit inder SOd(bM5) might. differ

several Court { Appe have ddressed the adn

if ()] nea? | ‘ jery ‘ l! }e°7 t? rrys¢ SCP atT MS) y
Cumstantial guarantee tandard and the Confrontation
{ 1US¢ particularize ruarantes tandarad [hie reuit
, " ‘ t) lIrreqd i! } ? ’ ? a t > if ry j oo ’ heft A’ gage? Try
tv tandards and have nsidered the same factors fo:
hot } t « ‘ ly ] ) ty / S/ of, [) wer? m Se | 46 G44 Cy
{ (,ft? { y 1}OG8&G) tf hy¢ Ne ent ( y lit (\¢ a rmine | tf) t
the pvrand jur testimony at} le Nad the requisite Cir
lly | i] t aai {7 4 ira! lee ay t? i (wort! eé tT ] Va por |
erly admitted under Rule SO4(b\5). though the court
1utioned that the evidence may st olate the Sixt!
Amendment. However, in its Confrontation Clause dete)
mination, the court summarily concluded that the requir
ment for particularized guarantees of trustworthine

va atisfied nee the Rule 804(b\M5) test wa atisfied
/ at Yns The Fourth Cireuilt. in Toya te / State Ws f
014 F.2d 1131, 1136 (4th Cir. 1978). likewise found that
grand Jury testimony was admissible under Rule &04(b)(5)
Dut noted that It was required to make a separate deter
mination of admissibility focusing upon the Confrontatior
Clause. When it addressed the reliability of testimony ur
der the Confrontation Clause, though, it stated that the
considerations had been ‘‘canvassed’’ in the 804(b\5) dj
cussion, and It merely discussed the same factors. Jd. at
1137-38. Other courts have simply stated outright that
) ’ ’ . ; , "
though the standards are distinct and though reliability

may not be inferred under a Sixth Amendment analvsi

} Tae
nerely because the prior testimony 1s admissible under

Rule 804(b\5), the factors to be considered in assessing

and the Confrontation Clause are
*y ; 75) ; De 224 : 2 A FS
‘ nyder, O14 I 2M 1) ] Lead boos

Linited State ) Land, G04 F.2d 61*
reasons that led court to find lack

purposes of Rule ®04(byW5) indica

dicla of rehabilitv for Confrontati

denied, 110 S. Ct. 305 (1990): United

Hable under Confrontation Clau

a i : Poesia - »
Diity under Rule ®O4(b\D) expre
ther tho ¢ t | .
Whether the VO andard Lré

admissible under Rule &04(b)W5) mz

+}, . "we ¢+,+ r11 +
tne Confrontation Clause ] ] mM
ithe +h) y SS ae - + , +
either this ( QUIT or the ( Our Q
11 1 | r ‘ (ry ,
Would di] IngvgUuIsn an aami Ib)i€
f : tat nt
rom an inadm! Mie avemerl
11 : Cinra oan :
Clause.'* Since most cases involvin
ae ry nero } , re { yr
ay evidence lni¢ i AINE yrand Ai ¥
} t 2 i(} a ¢ { + > ¢
both Rule 804(b\5) and the Confr
¢ + . + ¢ + wie 4 +
NOUId grant certiorar! to claril
* +
petween tne adm 1O11) test 1!
an OF hile [ Lid ~ t io
pe tnat tr ( irt s ases unnecessar [
tne reiationsr [ nertrweer ne nstitut r
+} b r r ¢ {or "T'} r
ic lca sday Ales ee at t A 4

CONCLUSION ‘

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S i AS wv 6D

APPENDIX

United States Court of Appeals,
Fourth Circuit

4iiil

bond
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+

A. TUCKER

+ a > ¥ le
Defendant-Appellan

Argued: Feb. 6, 1992
Decided: Mar. 11, 1992

Appeal from the United States District Court for the
~ } . . . , v* . +? 1) }
Southern District of West Virginia. at Charleston. ( harles

H. Haden, II, Chief District Judge. (CR-90-82-2)

Arthur T. Ciccarello, Sr., Charleston, W. Va.. argued
(Michael J. Del Guidice and Thomas G. Casto, Charleston.
W. Va., on the brief), for appellant.

Joseph F. Savage, Jr., Asst. U.S. Atty., Charleston, W.
Va., argued (Michael W. Cary, U.S. Atty., Charleston, W.

Va., on the brief), for appellee.

Before RUSSELL and SPROUSE, Circuit Judges, and

BUTZNER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this
circuit. See I.0.P. 36.5 and 36.6.

OPINION

‘
PER CURIAM:

Larry A. Tucker appeals his convictions under 18 U.S.C.
§§ 1503, 1623 (1988), contending that the district court
rred in admitting the grand jury testimony of a deceased
witness at Tucker’s trial.! Finding no error, we affirm the

aistrict court judgement.

Appellant Larry A. Tucker is a real estate broker and
former President of the West Virginia Senate who pled
guilty on September 11, 1989 to extortion under color of
office in violation of the Hobbs Act, 18 U.S.C.
§ 195(b2\ 1988). The terms of Tucker’s plea agreement
required Tucker to cooperate with investigative authorities
by testify:ng truthfully before a federal grand jury and by
providing truthful information about his prior financial
dealings to Special Agent Charles Little of the Internal
Revenue Service

Tucker, however, testified falsely before the grand jury,
and falsely represented to Special Agent Little, that he
had properly reported on prior tax returns all the income
that he had previously earned, including any income which
he received from nursing home interests. Cecil Nichols, a
principal of Continental Health Care (‘‘CHC’’), testified
before a subsequent grand jury on January 9, 1990 that
CHC paid Tucker $100,000 in 1984 as compensation for
locating suitable sites in West Virginia for the construction
of nursing homes. Through a ruse involving the deposit

Tucker raised other grounds for appeal in his brief. However. at
oral argument, Tucker’s counsel elected to confine the appeal solely to
the issue of the district court’s admission at trial of a deceased witness’
grand jury testimony. We shall do likewise, and do not here consider
the other issues raised in Appellant’s brief. We are confirmed in this
course by the opinion that none of the unargued issues has any merit.

of this $100,000 into an account ostensibly maintained by
Fricks, Inc., an unprofitable business operated by one of
Tucker’s business associates, Tucker sought to conceal most
of this $100,000 in income from the I.R.S. and to avoid
payment of income tax thereon. Nichols testified before
the grand jury that, at Tucker’s request, CHC executed
checks totalling $100,000 to Fricks. Inc.—rather than to
Tucker personally—as payment for Tucker’s services in
locating sites for CHC nursing homes.

On June 21, 1990, Tucker was indicted for obstruction
of justice in violation of 18 U.S.C. § 1503, and making
false declarations before a grand jury in violation of 18
U.S.C. § 1623. Since Nichols was deceased by the time of
Tucker’s trial, the district court admitted Nichols’ testi-
mony before the grand jury regarding CHC’s payments by
check to Fricks, Inc. for Tucker’s benefit. Tucker was
convicted of both offenses on December 10. 1990.

I]

Tucker argues that the district court violated his rights
under the Sixth Amendment's Confrontation Clause by ad-
mitting Nichols’ grand jury testimony at Tucker’s trial.
Tucker correctly observes that Nichols’ Statements before
the grand jury are hearsay, which the district court ad-
mitted under the exception to the hearsay rule provided
in Fed. R. Evid. 804(b\5).:

‘Fed. R. Evid. 804(bX5) permits admission of hearsat statements
where the declarant is unavailable, the statement exhibit. circumstantial
guarantees of trustworthiness equivalent to those des Since Fed. R. Evid. 804(bX5) is not a traditional hearsay exception,
see, e.g., Ellis, Nos. 90-5726, 91-5771, 1991 WL 260433, at *5 n.1 (4th
Cir. Jan. 7, 1992), this issue is one of whether Nichols’ statements
showed sufficient guarantees of trustworthiness.

5a.

a plea agreement which required him to be truth.
ful with federal investigators. Third, the govern-
ment agents were taking notes in the presence
of [the witness] as the statements were made.
Fourth, [the witness] could be deemed to know,
in view of the plea agreement, that what he was
saying would be the subject of further investi-
gation—and confirmation—by the government.
Fifth, though the plea agreement did not require
him to do so, [the witness] agreed to record sub-
Sequent conversations with the individuals he had
implicated ... suggesting that he was wiling to
have the truthfulness of these statements tested.

Id.

We find that similar circumstances exist here, and that
Nichols’ statements exhibit indicia of trustworthiness suf-
ficient for purposes of the Confrontation Clause. Nichols
testified before the grand jury pursuant to an immunity
agreement which he had voluntarily entered under advice
from his attorney and which required him to give truthful
statements regarding his dealings with Tucker. Nichols’
attorney was present outside the courtroom at the time
of the grand jury proceedings, and Nichols was afforded
the opportunity to confer with his attorney at any point
during his testimony. Nichols, no doubt, understood from
the nature of the grand jury proceedings that the infor-
mation contained in his testimony would be the subject of
further investigation. The United States Attorney could
have revoked Nichols’ grant of immunity were it discov-
ered that Nichols testified falsely. Because Nichols’ state-
ments before the grand jury were under oath, false
testimony could have subjected Nichols to prosecution un-
der 18 U.S.C. § 1628.

We conclude for these reasons that Nichols’ statements
clearly met the requirements for trustworthiness adum-
brated in United States v. Ellis, Nos. 90-5726, 91-5771,

1a y oC A499 ‘ *o ‘iy nY é 17QQ9 ‘ x

1991 WL 260433, at *2 (4th Cir. Jan. 7. 1992). and we
4 “ ? »} } ' y > , 1Ir°T

accordingly altirm tne decision of the district court

AFFIRMED

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0946%3A1. Public record. Not legal advice.