United States v. Dent

HARLINGTON WOOD, Jr., Senior Circuit Judge.

This appeal arises from the convictions of the defendants Charles Dent and Ivy Travis Tucker for being felons in knowing possession of a firearm in violation of Title 18, United States Code, Section 922(g). Several evidentiary issues are raised in addition to a challenge of the government's recall of a witness at trial in response to notes from the jury before the close of evidence. . . Both defendants were found guilty at a jury trial in February 1991.

Facts and Procedure

This case began with a simple traffic stop in a parking lot in Lansing, Illinois, on January 31, 1989. A Lansing police officer named Brad Borys testified that he saw the driver of a car run a stop sign. Officer Borys activated his lights and pulled the car over. There were two people in the car, a 1983 Datsun, the two defendants in this case. Defendant Tucker was driving the car, and defendant Dent was seated in the front passenger side of the car. The officer parked behind the Datsun, and the officer got out of his car as the defendants got out of their car. The officer asked the driver, Tucker, for his driver's license, which he did not have. The driver then gave the officer a false name. Dent, the passenger, also gave the officer a false name. During this time, the officer patted both defendants down. The car did not have any license plates but had a license applied for sticker in the rear window. Officer Borys wrote down the car's vehicle registration number (“VIN”) from the sticker in the rear window and compared it with the VIN number on the driver's side of the car's dashboard.

At this point, the defendants' version of the facts diverges from the government's version. The district court at a suppression hearing held on January 16 and 18, 1991, made findings of facts consistent with the government's position. The district court found that as Officer Borys was comparing the car's VIN number that he had written down from the sticker in the rear window with the number on the dashboard, he saw a gun protruding from underneath the driver's seat of the car. Officer Borys opened the unlocked car door and retrieved the gun, which was loaded, and placed in it in his back pocket. At about this time a back-up patrol unit which had been previously called arrived at the scene. Officer Borys asked the arriving officer, Bruce H. Peterson, to watch the two men while he searched the interior of the car. After searching the car for approximately five to ten minutes and finding nothing more, Officer Borys told Officer Peterson that he had recovered a gun. Officer Borys did not tell Officer Peterson that he had found a loaded gun when Officer Peterson first arrived, nor did Officer Borys handcuff the defendants or tell them to get down on the ground or raise their hands in the air. After the second search of the car, defendants were placed under arrest. Tucker was searched and found to be carrying $1,700. The car was towed to the Lansing police station. Two trench coats, one nylon half-stocking, and one black mask or head covering item were recovered from the inventory search of the car at the station. The only item admitted into evidence at trial was the black mask or head covering item; the trench coats were not kept and the nylon half-stocking was lost.

Defendants' version of the facts is different at several significant points. Defendants contend that Officer Borys did not see the gun when looking at the VIN number through the front window. They both testified at the suppression hearing that the car was locked and that the officer searched Dent for the car key. They testified that Officer Borys retrieved the gun only after an extensive search of the car. Officer Borys then said to Officer Peterson something like “look what I found.” Officer Peterson testified that he did not know that Officer Borys had found a gun until five or ten minutes after he arrived.

On July 25, 1990, a grand jury returned a one-count indictment charging the defendants with being felons in knowing possession of a firearm. . .

Several evidentiary issues raised in motions in limine prior to trial are among the issues on appeal. First, Dent moved to exclude his plea of guilty to a misdemeanor state claim for unlawful use of a weapon which arose out of the same facts. In the alternative, Dent moved to admit the portion of the state court transcript indicating the plea was against the advice of Dent's state court lawyer. The district court denied Dent's motion and granted the government's motion to bar testimony by Dent's lawyer.

Dent and Tucker moved to exclude the evidence of the masks and trench coats found in the car under Rule 403 of the Federal Rules of Evidence. The district court denied their motion and held the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

The government moved to admit the grand jury testimony of Roger Elayyan, who was unavailable to testify at trial, under Rule 804(b)(5) of the Federal Rules of Evidence. The district court held the statement was relevant and had the required guarantees of trustworthiness for admission. The court further found that admission of the testimony would not violate the defendants' right to confront witnesses under the Sixth Amendment of the United States Constitution.

The jury trial for the defendants began February 20, 1991, and lasted two days. . .
The jury returned guilty verdicts against Dent and Tucker. Both defendants received enhanced sentences under Title 18 of the United States Code Section 924(e)(1) because each defendant had three previous violent felony convictions. The district court gave them each a fifteen-year sentence, the mandatory minimum under the sentencing guidelines. Tucker appeals the use of two of his prior convictions for his enhanced sentence. He argues that two of the guilty pleas were neither voluntarily nor intelligently made under Wisconsin law and the United States Constitution. . .

The Grand Jury Testimony

The district court admitted the grand jury testimony of Roger Elayyan under the catchall hearsay exception of Rule 804(b)(5) of the Federal Rules of Evidence. This rule permits the admission of a statement by an unavailable witness that does not fit within one of the specific hearsay exceptions but has “equivalent circumstantial guarantees of trustworthiness.” The district court must determine that the statement goes to a material fact and is more probative of that fact than other evidence that can reasonably be found. The court must determine that the interests of justice as well as the general purposes of the evidentiary rules will be served by admission of the statement. We review the district court's decision under Rule 804(b)(5) for an abuse of discretion.

Grand jury testimony is admissible in this circuit under the residual hearsay exception only if it meets the stringent criteria of Rule 804(b)(5). We have already held that grand jury testimony does not come within one of the specific hearsay exceptions in Rule 804, namely the former testimony exception of Rule 804(b)(1), and is properly considered under the residual hearsay exception. . .

Admission of grand jury testimony must also be evaluated under the Sixth Amendment's Confrontation Clause. Standards for admission under Rule 804(b)(5) and the Confrontation Clause are similar, but distinct. . . When a hearsay statement does not fall within a firmly rooted hearsay exception, there must be a showing of “particularized guarantees of trustworthiness” to satisfy the Confrontation Clause, . . . which must be drawn from the totality of the circumstances. . .

Roger Elayyan, a car salesman, testified before the grand jury that he sold the car in this case to a woman and a man. He identified defendant Tucker from a photo spread as the man accompanying the woman who bought the car. This testimony was read into evidence by another government witness.

The district court admitted the grand jury testimony after evaluating the relevant factors for proof of the testimony's trustworthiness. There is no argument over the unavailability of the witness who was in a foreign country at the time of the trial. The district court found the testimony relevant as evidence of Tucker's connection to the car and, therefore, to the gun. As the witness was out of the country, there was no other way to admit the grand jury evidence and identification of Tucker. The district court considered Elayyan a disinterested witness who voluntarily testified under oath and was subject to prosecution for perjury. The court found sufficient corroboration of the testimony because Tucker was driving the car.

Defendant Tucker argues the testimony does not have the requisite circumstantial guarantees of trustworthiness and indicia of reliability. Defendant relies upon the fact that the witness gave the government a false address making it difficult to locate him. Defendant questions whether the witness was a voluntary witness because of this misinformation. Furthermore, because the witness left this country for Jordan, defendant asserts the government's claim that the testimony was not the result of any pressure is disingenuous. Despite these facts, the district court considered the testimony sufficiently trustworthy.

Defendant argues there was insufficient corroboration of the testimony to satisfy our standards for admission. Defendant is correct that there is minimal corroboration of the testimony and identification; the fact that Tucker was driving the car does not corroborate much. But no one factor is determinative of admission. Moreover, the Supreme Court held in Wright that corroboration alone does not support a finding of particularized guarantees of trustworthiness.

At oral argument, the application of the Supreme Court's recent decision in United States v. Salerno was raised. The Supreme Court has never decided whether grand jury testimony can be admitted under the residual hearsay exception. . . There is a conflict among the circuits as to whether this evidence is admissible. . . In Salerno, the Court held that grand jury testimony cannot be admitted under Rule 804(b)(1) as former testimony unless all the requirements of the rule have been satisfied. The district court in that case had found that the grand jury testimony did not have the circumstantial guarantees of trustworthiness to satisfy admission under Rule 804(b)(5). That finding was undisturbed by the second circuit's decision and was not discussed in the Supreme Court's opinion.

The district judge carefully considered the admissibility of the grand jury testimony, but on balance we do not believe it satisfied the trustworthiness requirements and therefore hold its admission to be error. It is, however, harmless error beyond a reasonable doubt. . . Elayyan testified simply that Tucker was with the woman who bought the car. This evidence is tangential to the issue decided by the jury concerning whether Tucker possessed the gun found under the front seat of the car. Sufficient other evidence fully justified the jury's guilty verdict.

Conclusion

For the above reasons, the convictions of defendants Dent and Tucker are affirmed. [Footnote 1]

=====FOOTNOTE 1=====

In Judge Easterbrook's concurrence the door appears to be tightly shut, as I read it, against ever using the grand jury testimony of an unavailable witness in a criminal prosecution. Perhaps it should be, but because this case does not require that determination I prefer not to go that far at this time. If this panel were to adopt the rule I see propounded in the concurrence, it would first require en banc consideration by this court. . . Judge Posner writing in United States v. Boulahanis, 677 F.2d 586, 589 (7th Cir.), notes that this court “has been unwilling to hold that the admission of hearsay evidence is a per se violation of the confrontation clause of the Sixth Amendment” and proceeds to hold in the circumstances of that case that it does not. Later, Judge Coffey writing in United States v. Guinan, comes to the same conclusion. The circuits are divided. . . It would appear that the time is coming for us to reconsider the issue, but this is not the case for that as it makes no difference in the unanimous result the panel reaches in this case affirming the conviction.

=====Footnote End=====

Affirmed.


EASTERBROOK, Circuit Judge, with whom BAUER, Chief Judge, joins, concurring.

I join the court's opinion, which leaves open the question whether United States v. Salerno, 505 U.S. 317, (1992), requires a fresh look at the introduction of grand jury testimony under Fed.R.Evid. 804(b)(5).

Rule 804(b)(1) provides that statements of an unavailable declarant are admissible, despite the hearsay rule, when the statements are:

“Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”

Defendants in criminal cases are not represented before the grand jury, and hence lack an “opportunity” to develop the witness' testimony by direct or cross examination. Grand jury testimony is accordingly inadmissible under Rule 804(b)(1) against a defendant in a criminal case.

Bypassing Rule 804(b)(1), the district judge relied on Rule 804(b)(5), one of the residual exceptions to the hearsay rule, which says that a court may admit:

“A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.”

Roger Elayyan testified before the grand jury but was out of the country during defendants' trial. The district judge permitted the prosecutor to use a transcript of Elayyan's testimony as substantive evidence. The court today holds that Elayyan's statement was inadmissible because not sufficiently trustworthy. That conclusion enables the court to avoid the question whether Rule 804(b)(5) applies to grand jury testimony in the first place.

United States v. Boulahanis holds that it does. But Boulahanis does not mention the introductory language limiting Rule 804(b)(5) to “[a] statement not specifically covered by any of the foregoing exceptions”. Although Boulahanis assumed that Rule 804(b)(1) does not even apply to grand jury testimony, so clear is the inadmissibility of such testimony against the defendant under its standards, we know from Salerno that Rule 804(b)(1) indeed “applies.” Prior testimony of every description is “specifically covered by” Rule 804(b)(1). Boulahanis treats Rule 804(b)(5) as if it began: “A statement not specifically admissible under any of the foregoing exceptions . . .”. Evidence that flunks an express condition of a rule can come in anyway. Rule 804(b)(5) reads more naturally if we understand the introductory clause to mean that evidence of a kind specifically addressed (“covered”) by one of the four other subsections must satisfy the conditions laid down for its admission, and that other kinds of evidence not covered (because the drafters could not be exhaustive) are admissible if the evidence is approximately as reliable as evidence that would be admissible under the specific subsections.

Some rules take the form: “Evidence is always admissible if conditions A and B hold; if these conditions do not hold, then it is admissible if the court believes that the benefits of using the evidence exceed any shortcomings.” Consider how Rule 609 treats prior convictions offered to impeach a defendant: a conviction may be used automatically if it involves dishonesty or false statement, and otherwise the judge balances probative and prejudicial effects. This is how the court of appeals treated Rule 804(b)(1) in Salerno. Defendants in a criminal case sought to introduce the grand jury testimony of a person who, having invoked the privilege against compulsory self-incrimination, was “unavailable” to them at trial. The prosecution, the “party against whom the testimony [was] offered,” objected, observing that although it had the “opportunity” to examine the witness before the grand jury, it lacked a motive “similar” to that at trial, where it would be deprived of the opportunity to cross-examine the witness. The court of appeals dispensed with the “similar motive” portion of the rule on equitable grounds and held the testimony admissible. . . The Supreme Court reversed, concluding that the Rule must be applied as written. Consistent application of the textualist approach implies taking the introduction to Rule 804(b)(5) equally seriously.

In Salerno the United States persuaded the Supreme Court that to introduce prior testimony by an unavailable declarant the proponent of the evidence must satisfy the conditions in Rule 804(b)(1). In our case the United States, concededly unable to satisfy the conditions in Rule 804(b)(1), contends that the judge may admit the evidence anyway after ascertaining that the testimony was trustworthy. I doubt that the Solicitor General took Salerno to the Supreme Court in order to change the citation of authority from Rule 804(b)(1) to Rule 804(b)(5) while leaving the result untouched, or that the Court thought that its opinion would do nothing beyond correcting a typographical error.

True, Salerno does not discuss Rule 804(b)(5); neither side suggested that the grand jury testimony would be admissible under that Rule. The district judge had held that the testimony in question did not satisfy the “trustworthiness” requirement, which appears in Rule 804(b)(5) but not in Rule 804(b)(1). Salerno therefore does not discuss whether resort to that subsection is appropriate when testimony appears to be more reliable. It would be ironic, though, if the upshot of Salerno were that only the prosecutor may employ grand jury testimony in criminal cases. Any asymmetry should run the other way: the confrontation clause of the sixth amendment protects defendants, not prosecutors, from out-of-court statements. Although historical exceptions to the hearsay rule do not violate the confrontation clause, new exceptions must overcome a presumption against them. . .

Trial by affidavit was the bugbear that led to the confrontation clause; trial by grand jury testimony is not far removed. Grand jury testimony, like an affidavit, is one-sided, an ex parte narration over which the prosecutor has ample control. To avoid the introduction of unilateral narrations, Rule 804(b)(1) provides that prior testimony is admissible only if the party against whom the evidence is offered had both opportunity to examine the declarant and motive to do so. That the testimony has indicia of trustworthiness cannot be controlling; many affidavits appear to be trustworthy. A defendant's entitlement to confront the witnesses against him is not limited to confronting apparently-untrustworthy witnesses. Confrontation is valuable in large measure because it may establish that what seems to be accurate is misleading or deceitful or rests on inadequate foundation. Conditions on the use of Rule 804(b)(1) ensure that the defendant retains the right of confrontation in circumstances that lie at the core of the constitutional guarantee. Temptation to get 'round this limitation by moving to Rule 804(b)(5) and slighting its introductory language should be resisted.