United States v. Charles Dent, Also Known as William Brown, and Ivy T. Tucker
984 F.2d 1453
7th Cir.
1993
Check Treatment

*1 proceeding. in a collateral claim assistance America, D’Iguillont, States

See United UNITED STATES Cir.1992) (merits inef 614-15 Plaintiff-Appellee, will not claim of counsel fective assistance both appeal where on direct be addressed DENT, us to resolve requested also as William

parties have not known Charles regarding is not clear Brown, Ivy Tucker, record issue T. conduct); see for his counsel’s reasons trial Defendants-Appellants. Fisher, 772 F.2d also United 91-3113, 91-3114. Nos. Cir.1985) ineffective (appellant’s left for is better assistance of counsel claim Appeals, States Court required ap allegations court where trial Seventh Circuit. outside depend on evidence pellate court to Sept. 1992. Argued record). Decided Jan. 1993. VI. CONCLUSION Amended 1993. As Feb. raised a number appellants have Rehearing En claims, individually. Rehearing Banc jointly merit, they April they plainly are without Denied Since Velas- James discussed herein. will be resen- Rodriguez must be

quez and Julio

tenced, case will be remanded and the purpose. limited

Judge Marovich appellants remaining sentences of respects, In all other disturbed.

will court are judgments of trial AF-

FIRMED. In 90-1277

ORDER No. for re- petition consideration of

On rehearing en

hearing suggestion for appellant on Feb- filed

banc service judge in active

ruary no thereon, and all of requested a vote

has voted to original panel

judges on Accordingly,

deny rehearing. peti- the aforesaid

IT IS ORDERED that be, is here- rehearing and the same

tion for

by, DENIED. In No. 90-1313

ORDER petition re- consideration of

On defendant-appellant on

hearing filed judges

February all deny the voted to

original panel having

same, HEREBY

IT IS ORDERED be, rehearing petition for

aforesaid hereby,

same is DENIED. *3 response trial a witness

recall close before *4 officer Lansing police A January he saw Borys testified Brad named Officer stop sign. a run a car driver pulled lights his Borys activated in the people two There car over. in Datsun, two defendants car, a 1983 driving was Tucker Defendant this case. in seated Dent was car, and defendant car. The of the side passenger the front Datsun, behind the parked officer defendants as the his car got out of officer asked the The officer car. of their got out license, Tucker, driver’s driver, for his driver then The did not have. he which Dent, the name. a false officer gave the a false the officer gave also passenger, time, patted the officer During this name. car did The down. both defendants a license but had plates any license Of- rear in window. for sticker’ applied (ar- Atty. Asst. U.S. Kinney, Terry M. vehicle the car’s Borys wrote down Elden, ficer Asst. Div., Barry R. gued), Crim. (“VIN”) from number Div., registration Appellate Receiving, Atty., Crim. compared in the rear window sticker IL, for U.S. Chicago, side on driver’s number the VIN with A. Scul- (argued), Judith P. Connor Kevin the car’s dashboard. Tucker. IL, Ivy T. Chicago, ly, version the defendants’ point, At this (ar- Brook, Rowland Mary M. A. Carol government’s diverges from facts Defender, Public Federal gued), Office suppres- a court at The version. Dent. IL, for Charles Chicago, January 16 on hearing held sion (cid:127) consistent findings of facts 1991, made Judge, BAUER,, Chief Before dis- position. government’s with the Judge, and EASTERBROOK, Circuit Borys was Officer that as found trict court Judge. Jr., Circuit WOOD, Senior he number car’s VIN comparing WOOD, Jr., Senior HARLINGTON in the the sticker from written down had Judge. Circuit dash- on the the number rear window from un- board, gun protruding he saw the convictions appeal arises This car. Offi- of the seat the driver’s Ivy derneath Dent and Charles defendants of the car door unlocked opened the Borys knowing cer in being felons Travis loaded, was gun, which Title and retrieved in a firearm violation possession At pocket. his back it in in placed Code, 922(g). and Section which patrol unit back-up this time in ad- about raised eyidentiary issues are Several arrived called previously had been government’s challenge to dition illegal gun and the should be arriving search was Borys asked scene. Officer Peterson, suppressed. The district court denied the officer, to watch Bruce H. suppress gun and found that the of motion to men while he searched two interior plain as the ap- seen the officer view searching the car for After the car. through finding looked the front window. officer ten minutes and proximately five to Borys’ Officer more, believed Borys told Officer nothing Officer parts found that of defen- gun. Of- but that he had recovered Peterson Peterson dants’ were unbelievable. not tell Officer Borys ficer did a loaded when Offi- he had found evidentiary issues raised mo- Several arrived, nor did Officer first cer Peterson prior among to trial are tions limine tell them defendants or Borys handcuff the First, appeal. Dent moved to issues raise their ground on the get down plea his to a misdemeanor exclude the second search in the air. After hands weapon use of a state claim for unlawful car, placed defendants were In the which arose out of the same facts. found to was searched and arrest. Tucker alternative, por- Dent to admit the moved $1,700. car was towed to carrying transcript indicating tion of the state court trench Two Lansing police station. Dent’s plea the advice of *5 coats, half-stocking, one nylon one lawyer. court The district court de- state covering item were head black mask or granted govern- motion the nied Dent’s inventory search of the from the recovered testimony by Dent’s ment’s motion to bar only The item admitted car at the station. lawyer. mask or was the black into evidence at trial the Dent and Tucker moved to exclude item; were covering the trench coats head of the masks and trench coats half-stocking was kept nylon and the Rule 403 of the found in the car under lost. Rules of Evidence. The Federal is differ- Defendants’ version of the fácts motion and held the evi- court denied their points. Defen- significant ent at several 404(b) was admissible under dence Borys did not contend that Officer dants prove Rules of Evidence to the Federal looking num- gun at the YIN intent, see the when “motive, preparation, opportunity, They through the front window. both ber identity, or plan, knowledge, absence hearing that suppression at the testified or accident.” mistake the officer car was locked and that government moved admit The key. They car testi- searched Dent for the Roger Elayyan, testimony of grand jury gun Borys retrieved the fied that Officer trial, testify was unavailable who the car. only after an extensive search of 804(b)(5) Federal Rules of the under Borys then said to Officer Peterson Officer court held the The district of Evidence. I something like “look what found.” Offi- re- relevant and had the statement was know Peterson testified that he did not cer for of trustworthiness quired guarantees gun until Borys had found a that Officer The further found court admission. after he arrived. five or ten minutes vio- admission right to confront wit- July grand jury returned a late On defendants’ Amendment nesses under the Sixth charging indictment the defen- one-count knowing posses- States Constitution. being felons in dants with firearm. sion of a began trial for the defendants jury The days. two February and lasted suppress the evi- Defendants moved to jury for judge dismissed stop. of the traffic After dence found as a result case, government’s day near the end of the evidence was Defendants contend one of the a note from judge conceded the received illegally. found The of sale This read: “On the bill hearing jurors. if note suppression at the that Officer price of license car], is the gun sticking out from where Borys did not see the [for purchaser’s Why is the plain he looked and title transfer? under the seat view as car window, address of the subsequent the same as the through the front address read into evidence mileage 11,000-plus lot? Was Roger Elayyan. automobile.” Datsun, six-year old an ’83 re- The II at 147. vol. Supp.Rec. guilty verdicts jury returned from the apparently note ceived a second re- defendants Tucker. Both Dent “Who note read: The second Title 18 of juror. same sentences enhanced ceived Supp.Rec. 924(e)(1) vol. registered to?” gun Code Section previous had each three Ill at 169. The district felony convictions. violent parties and both court fifteen-year sen- gave them each a court questions. respond to the how to agreed on under the tence, mandatory minimum day, the next began the trial When appeals the sentencing guidelines. jury: court told his prior convictions two of his use of asking two notes jurors wrote One two of argues sentence. He enhanced sale concerning the bill of questions four voluntarily pleas neither exhibit, both gun and the exhibit law intelligently made under Wisconsin nor It in evidence. received been which have Constitution. the United States respond to directly best would be Analysis at this time. questions individual those Hearing Suppression in. The All of the evidence contend that arguments or closing heard has not suppress the refusing erred Court, will which by the the instructions allegedly un during an found which was those, well as information give more Defen of the car. search constitutional matters, may relate they as other finding of the district court’s argue dants help made, and should to be the decisions *6 in gun Borys saw the fact that Officer So, with involved. matters clarify the windshield the car’s through plain view response this that, will be the that state Defendants clearly erroneous. was time. testimony incredi Borys’ was that Officer govern- The vol. Ill at 186-87. Supp.Rec. be grave discrepancies light of ble in Jolley to Agent Laurie recalled ment then Peterson’s testimony and Officer his tween objected to the Both defendants the stand. that Peterson testified testimony. Officer to ad- witness recalling this government Borys’ rear gun in not see a Officer he did The district questions. juror’s dress the Borys that Officer did not learn pocket and objection their court overruled search the extended gun until after found chief, case closed its in had not testified Peterson car. Officer also agreed parties had and the the court own have his Borys did not that Officer additional could be no that there arrived, Peterson gun drawn when Officer it felt obli- questions, and juror’s after the he Borys that testified although Officer fully under- that the gated to ensure gun in the finding the gun his after drew involved. matters stood the it is unbe rationalize that car. a loaded found that an officer who lievable Jolley, gave witness, Agent The recalled place the sus immediately gun gun concerning the testimony new attempt to or at least pects arrest reg- gun about Agent Jolley testified car. Moreover, it is them somehow. restrain Illinois, Chicago, requirements istration incredible, argue, that the defendants also Racine, testified about She Wisconsin. back-up arriving would not tell officer gun was to whom people the different the sus officer, to watch was who asked kept that records were according sold gun found a loaded that he had pects, she inter- from witnesses and information minutes suspects’ car five ten until testified certifi- then viewed. She later. mileage its for the car showed cate of title rejected Jolley defendants’ Agent district court 119,343 The miles. was When hearing. suppression arguments at testified, testified that simply first she Borys legally found that Officer time, she also court gun operable. that At “plain exception under the view” they a' admitted ran after the defendants stopped prohibition plain as to the Fourth Amendment’s view sign stop saw. VIN number searches. See Cool- the car’s unreasonable checked the officer Hampshire, court found idge v. New the dashboard. on the car without Borys got into Officer while “the The court concluded

key. find- find district court’s We do not Peterson backup Officer testimony of the clearly to be erroneous. The ings of facts testimony exactly dovetail doesn’t hearing days, two suppression lasted officers were both Borys,” the of Officer opportunity had a full the district court the defendants while credible witnesses the wit- testimony and observe hear the fact not. The court stated carefully consid- The district court nesses. as careful as Borys was not that Officer credibility and the ered the witnesses’ im- did not been he should have perhaps testimony weight given to the to be credibility. his peach The district stated Officer each. court findings facts A district court’s answers Borys gave direct and careful clearly errone reversed unless will not be and cross-examina- questions both direct Bessemer, 470 City Anderson v. ous. found Officer Pe- tion. court 1504, 1511, 84 564, 573, 105 S.Ct. U.S. credible, testimony similarly and his terson (1985); v. Ed States United L.Ed.2d the other officer’s corroborated Cir.1990); wards, testimony. the defendants’ and contradicted 860, 862 897 F.2d Ingrao, States v. United hand, district court found the other On (7th Cir.1990). the district Because great had reason to that both defendants to hear opportunity had they both faced give false witnesses, observe the demeanor given had and both sentences substantial great deference. findings given are police. false names Sewell, 942 F.2d — judgment Cir.1991), our We cannot substitute -, credibility for the district the witnesses’ (1992); Edwards, at 1276. When district court unless we believe court’s on its findings are based findings. court’s in its See clearly erroneous *7 another, 1064, over credit one witness decision to 900 F.2d Sophie, v. United States as clear findings rarely 843, disturbed denied, will Cir.), (7th cert. 1072 error, contradictory extrin there is (1990). unless 124, 92 We 111 S.Ct. internally findings are or the sic evidence doing here. close to so not even are 575, Anderson, 470 at U.S. inconsistent. plain seen in gun was or not Whether Dowell, 1512; States v. at United depends window through the front view denied, Cir.), 599, (7th cert. F.2d 602 724 is to be believed. solely upon which witness 906, 104 80 L.Ed.2d 157 U.S. 466 Borys Officer court The district believed (1984). Tucker; we do not than Dent and rather discretion. of its an find that was abuse that this circuit

The conflict within appro concerning the point out defendants argu reject defendants’ We further prob of review of appellate standard priate testimony Borys’ was ment that Officer re has been cause determinations able Testimony is law. of incredible as matter Spears, 965 v. States United solved — only if it is of law as matter incredible Cir.), (7th F.2d face, impossi physically on its impossible 502, 121 L.Ed.2d 438 -, of nature. laws ble, contradictory to the or Amendment both Fourth Spears held that 884 F.2d Dunigan, United States “subject cases are and nonwarrant warrant Cir.1989). exception is an (7th 269. In error.” Id. at for clear to review one,” and we will not “extremely narrow ease, only consider whether we need Kuzniar, it here. invoke findings were court’s factual district Cir.1989). (7th F.2d 470-71 was the evidence clearly erroneous because portions meaning confes- his Guilty Plea in State Court 2. The did not alter the sion submitted ... [and] court to rule that asks this Dent committing that admitted the acts fact he excluding in erred district court charged”). which he was on the lawyer in state court by Dent’s guilty Dent charge pled argument that that this evidence Defendant’s misdemeanor lawyer that impeach to against the advice of his should have been admitted he did know him that guilty plea Dent had told is without merit. The district argues this Dent gun lawyer’s in the car. was court concluded that the testimo- 106 of under Rule any knowledge is admissible ny regarding Dent’s lack the com Rules of Evidence or the Federal im- gun sought simply to Rule or completeness, mon law rule prove to that Dent did peach plea, but 803(24) of Evi Federal Rules Rule present. not know the See Unit- by refusing to dence. Dent contends Burton, ed States his state court law admit the Cir.1991) (finding government’s contention to between yer, was forced chose Dent only statements offered for context allowing testifying himself “untenable”). or. and not the truth unimpeached. plea go into evidence in argument unusual favor This rejected Dent’s impeaching admission and defendant’s own argument completeness rule of credibility Rule possible under the court and what lawyer said to what his in of its is incorrect both entirely sepa are lawyer Dent his said to preserve Dent it for claims that failed plea rate from Dent’s appeal apply that Rule does not party oath. Rule 106 allows per Rule party’s own statements. any is offered to introduce whom evidence impeachment of whose mits a declarant another part of the statement or 801(d)(2)(C), defined in Rule statement as in con fairness be statement which should (D), (E), But we has been admitted. along We will not reverse sidered with it. applies rule already held that this also on Rule 106 court’s decision in party's own as defined statement discre unless court abused its (B) Velasco, 801(d)(2)(A)or F.2d decision. v. Ve tion 1473 n. 5. Notes of Committee at See Cir.1992). lasco, Judiciary, S.Rep. No. 93d in, find the district court Cong., (1974), reprinted We do not 2d Sess. refusing to admit its discretion abused 7069 n. 28. U.S.C.C.A.N. complete- under the rule of this evidence exculpatory statements Dent’s Defen- any ness or other rule of evidence. lawyer plea and those of his lawyer testify let dant wants to his 803(24) properly excluded under *8 Despite exculpatory Dent’s statements. lawyer’s is no relevance the well. There plea a full that the entered after was plea that made statement alone court discussion with state about do we the advice counsel. Nor crime, factual for the predicate exculpatory find that Dent’s statements that he told his wants admitted evidence lawyer any “guarantees made his have gun pres- lawyer not know the he did required admis of trustworthiness” as for he the state that he although ent told v. sion under rule. United States this gun. possess the The district carry did Romo, 889, (7th Cir.1990), 914 F.2d 896 lawyer correctly court concluded — U.S. -, 1078, denied, 111 cert. S.Ct. statements, testify Dent’s cannot Dent’s (1991). 112 L.Ed.2d 1183 accepted plea, or state of mind when he plea. argu opposing reject for We further Dent’s lawyer’s reasons Dorrell, 427, See v. 758 F.2d ment that the doctrine of unconstitutional United States (9th Cir.1985)(“removing applicable 435 here. conditions is somehow [defendant’s] explanation religious doctrine, first political This articulated Simmons 377, change States, motivations for his actions did not 390 U.S. 88 S.Ct. v. United

1461 not second- requirements, to these we will (1968), prohibits .the 967, 1247 19 L.Ed.2d decision. guess the court’s United States forcing a defendant 1062, (7th Hudson, constitutionally protect 843 F.2d 1064 Cir. v. two chose between 976; 394, at 809 F.2d 1988); Beasley, 88 S.Ct. v. rights. Id. at United States ed 643, Ashimi, 1273, (7th Cir.1987). 647 932 F.2d v. 1279 Cir.1991). Additionally, a defendant (7th find that the district did We for assert needlessly penalized may not it admitted this abuse its discretion when right. States v. United ing a constitutional evidence court found the evidence. The 1209, 570, 583, 88 Jackson, 390 S.Ct. U.S. establishing possible for motive probative (1968). 1217, 138 United See 20 in the car. The trench carrying gun 336, Pizarro, 348 717 F.2d States v. items could be used coats and which other remand, F.2d 579 Cir.1983), 756 aff'd possible suggested to the court as masks denied, 105 (7th. Cir.), 471 U.S. cert. presence. explanation gun’s for the (1985). But L.Ed.2d 703 86 S.Ct. coats two found the two court further right not to in Amendment Dent’s Fifth joint possession items indicated unfairly bur was not himself criminate we gun. the one Whether to ad court’s refusal by the district dened mat- probative does not found this evidence the Su by lawyer. his As mit only for an appeal since we review ter on recognized, repeatedly Court has preme v. abuse discretion. See States of a on the exercise every burden “not (7th Cir.), Powers, peti F.2d pressure right, every and not constitutional 1992; Zapata, filed, Dec. tion cert. right, is such a encouragement to waive also will not reverse F.2d at 621. We Jersey, New invalid.” Corbitt finding rele court’s 492, 497, L.Ed.2d 466 substantially evidence was vance (1978). impact. The outweighed by its prejudicial value probative court concluded 404(b) Evidence 3. The con- prejudice; outweighed the risk court admitted evi of discretion not an abuse clusion was coats, the the two trench dence trial of the district court. See United covering half-stocking, the black head (7th Cir.), Kramer, 404(b) Rules of of the Federal under Rule — -, U.S. The district court examined Evidence. (1992). L.Ed.2d 533 estab requirements under the evidence Shackleford, gov lished in United States contend Cir.1984) Hud as modified to inflame the this evidence ernment used States, v. United dleston to convict jury and induce basis rather an emotional defendants on must evaluate whether: district court reject We proper evidence. than on (1) estab- argument is directed toward Dent and Tucker did than a matter issue other trial because of this lishing receive a fair propensity argued to the 404(b) commit defendant’s evidence. Defendants (2) closing shows charged, the evidence state opening crime jury in their enough and significant other act is similar the items were ments that enough in time to be relevant close of a possession anything related *9 issue, (3) is suffi- the evidence even, matter of the existence questioned and jury support finding trial, cient to a the trench at presented items act, committed similar half-stocking. coats (4) is probative value of evidence testify that the black to called a witness by substantially outweighed the dan- typically covering an item used head was. prejudice. ger unfair of after it has been person’s a hair protect Furthermore, in 616, styled. the district court 620 Zapata, 871 F.2d v. United States only jury to use the evidence Cir.1989). structed the district court Because knowledge considering the defendants’ according this evidence for properly evaluated 1462 grand jury testimony of proof for of their Admission and not bad Sixth must also evaluated under the commit crimes. be propensity to

character or Clause. Stan Amendment’s Confrontation mitigates the risk of limiting A instruction 804(b)(5) for Rule dards admission under admission of prejudice from the unfair similar, are Clause Confrontation v. evidence. United States 404(b) Rule Wright, Idaho 497 U.S. but distinct. 748, (7th Cir.1991). Wright, 943 F.2d 752 817, 3139, 3148, 805, 111 110 S.Ct. L.Ed.2d Evans, 400 U.S. 74, (1990); Dutton v. 638 Jury Testimony 4. The Grand 210, 218, (1970). 86, 213 91 S.Ct. L.Ed.2d The district court admitted hearsay When a statement does fall testimony Roger Elayyan jury grand firmly hearsay exception, within rooted hearsay exception of the catchall under showing “particularized there must be 804(b)(5) of Evi Federal Rules guarantees satisfy of trustworthiness” permits the admission of dence. This rule Roberts, Clause, Ohio v. the Confrontation by witness that unavailable a statement an 66, 448 U.S. specific hear does not fit within one L,Ed.2d (1980), which must drawn be “equivalent say exceptions but has circum totality from the of the circumstances. guarantees of trustworthiness.” stantial Wright, 497 U.S. at 110 S.Ct. at 3149. 804(b)(5). The district court Fed.R.Evid. salesman, Elayyan, car Roger testified goes thé must determine that statement grand jury before the that he sold the car probative a material fact and more a man. He in this case to woman and can rea that fact than other evidence that photo Tucker from a identified defendant Id. The court must sonably found. be spread as accompanying the man the wom- of justice determine that the interests as bought testimony car. This an who general purposes of the eviden- well govern- read into evidence another was tiary will served admission of rules ment witness. Id. We review the district the statement. 804(b)(5) grand for an court’s decision under Rule court admitted the Sny United States v. evaluating the rele- abuse discretion. after der, (7th Cir.1989). testimony’s proof 872 F.2d vant factors argument no trustworthiness. There is jury testimony is Grand admissible unavailability of the witness who over hearsay this circuit under the residual ex foreign country in a the time of the was at ception only stringent if meets the crite trial. The district court found the testimo- 804(b)(5). United States ria of Rule ny connec- relevant as evidence Tucker’s Guinan, (7th Cir.), cert. de 836 F.2d 350 therefore, and, gun. car tion nied, country, was out of the As witness States v. Bou (1988); way there was no other to admit the lahanis, Cir.), cert. de 677 F.2d 586 and identification of Tucker. nied, Elayyan a dis- The district court considered already We L.Ed.2d 509 held voluntarily testified interested witness who- grand jury testimony not come does subject prosecution oath and specific excep hearsay one of the within found perjury. sufficient 804, namely testi tions former corroboration of 804(b)(1), exception mony of Rule Snyder, the car. See driving properly considered under the residual Guinan, 1355-56; 836 F.2d at at Guinan, hearsay exception. 836 F.2d at 354-55. 354; Boulahanis, 588. See 677 F.2d Fernandez, argues Defendant Tucker (11th Cir.1989) requisite (stating grand jury tes not have the circumstantial does timony satisfy guarantees indicia requirements does of trustworthiness *10 upon 804(b)(1) considering reliability. Rule it under of Defendant relies the of dismissed, 804(b)(5)), gave government Rule 495 fact that the witness the U.S. 944, 2201, (1990). making 110 to locate 109 L.Ed.2d a false address it difficult S.Ct. 527

1463 Defendant, carefully questions whether the him. consid voluntary grand of admissibility jury witness because ered the witness was Furthermore, testimony, be- on this misinformation. but balance dowe believe country require left for Jor- satisfied the cause the witness this it trustworthiness dan, government’s asserts the ments and therefore hold its admission is, testimony however, claim was not the result error. It harmless that the error disingenuous. Despite beyond any pressure Chapman a reasonable doubt. See facts, 18, 386 87 California, these the district court considered v. U.S. S.Ct. 828, sufficiently testimony trustworthy. 17 705 the L.Ed.2d (1967), Elayyan simply testified that Tucker was argues there was insuf Defendant bought with the woman who the car. This testimony ficient corroboration the tangential evidence is to the issue decided De satisfy our standards admission. by jury concerning pos the Tucker whether minimal correct that there is fendant sessed the found under the front seat identifi testimony corroboration of the of the car. Sufficient other evidence fully driving cation; the fact justified jury’s guilty the verdict. no not corroborate much. But car does one is determinative of admission. factor 5. Recall of the Witness Moreover, the Guinan, F.2d at 836 355. Defendants argue that district in Supreme held that corrob Wright Court permit it court abused discretion when finding of support oration does not alone government ted to recall witness particularized guarantees of trustworthi special Jolley, agent Laurie Bu 821-25, 110 ness. 497 U.S. at S.Ct. Wright, Alcohol, reau Tobacco Firearms. at 3150-52. Following receipt of two notes argument, application At oral asking juror questions, several the district Supreme recent decision United Court’s

1464 of consumption truth, needless (2) avoid recalling the contend Defendants harass- time, (3)protect witnesses rereading testi- and to equivalent witness Fed. embarrassment.” be- undue Uient deliberations during jury mony to a difference gave 611(a). But there testimony and the R.Evid. highlighted it cause to in order claim recalling a witness importance. between it undue truth engaged the ascertain effectively present should court district that the directly need respond the between to process allowing a balancing witness in a overem- one risk of is that risk testimony and the The questions. juror’s for the to wit- party’s one opportunity of the unfair given an phasizing side is un- perhaps as as well its strengthen ness^ case testimony. Be- certain emphasize duly the additional not believe doWe in- properly court here district cause the unduly em- Jolley was by Agent respond- not jury it the that was structed testimony may occur when as phasized the because questions, directly to the ing Al- in deliberations. jury to a read back issues tangential testimony concerned clearly recalled government the though had government case, and because some answer order to Jolley in Agent case, not find that dowe apparent was not not rested this questions, juror’s it its discretion when not know court abused did district who jurors to the wit- recall the the dis- Additionally, government to allowed questions. specific not he would jury told ness. judge trict so the questions, respond directly witness reason believe no

jury Sentence had Enhanced 6. Tucker’s purpose. any special being recalled of his of two the use objects to Tucker here is situation do not believe We sentence. for an enhanced prior convictions asks for situation when like the those pleas for claims the Tucker during delibera- read back testimony to be illegally received because were convictions new gave This witness tions. intelligently voluntarily and not they were previously information repeat not and did Tucker’s court denied district entered. given. the convic- the use preclude motion to find that Although we do Tucker’s hearing. sentencing tions at when its discretion court abused considered carefully arguments the wit to recall affirm allowed We rejected. practice of approve of ness, dowe for defendant’s find no basis we because indi to answer in order recalling witnesses argument. 611(a) gives juror’s questions. vidual Conclusion control over reasonable the trial reasons, convictions above For the “(1) to: in order evidence presentation are affirmed.1 Dent and defendants presentation interrogation make the the ascertainment Affirmed. effective Latér, does not. that it that case stances of door concurrence Judge Easterbrook's 1. In Guinan, it, v. shut, Coffey writing States Judge in United I read tightly appears to be denied, Cir.), 350, (7th 487 testimony of an cert. un using F.2d 358 836 ever 2871, prosecution. 1218, 101 907 L.Ed.2d criminal S.Ct. witness 108 available U.S. be, case does this but cir Perhaps (1988), it should conclusion. the same comes to go prefer I require determination v. States Compare United are divided. cuits adopt panel were If this time. this 313, (1st far at that the rule I see Cir. 316-17 Panzardi-Lespier, 918 F.2d concurrence, it in the propounded Curro, 847 (admissible); 1990) States United consideration require en banc first Cir.) (admissible), 325, cert. 327-28 F.2d 40(f). Judge Posner writ Cir.R. court. See 116, 843, denied, 488 U.S. Boulahanis, F.2d 677 ing States in United Marchini, 797 (1988); United 90 759, Cir.), U.S. cert. (admissible), Cir.1986) de (9th. cert. (1982), that this *12 EASTERBROOK, Judge, by served admission of the statement Circuit BAUER, joins, Judge, evidence. Chief into whom concurring. Roger Elayyan grand testified before opinion, which leaves join

I the court’s country during was out of the but question whether United States open the judge per- defendants’ trial. The district — U.S. -, Salerno, prosecutor transcript mitted the to use a (1992), requires fresh look at L.Ed.2d 255 Elayyan’s testimony as substantive evi- grand jury testimony .of the introduction today The court holds that dence. 804(b)(5). under Fed.R.Evid. Elayyan’s statement was inadmissible be- sufficiently trustworthy. cause not That 804(b)(1)provides that statements Rule conclusion enables the court to avoid the admissible, are declarant of an unavailable 804(b)(5) question applies Rule whether rule, hearsay when the state- despite the grand jury testimony place. in the first ments are: given as a witness at anoth- Testimony Boulahanis, United States v. 677 F.2d hearing of the same or a different er (7th Cir.1982), 588-89 holds in deposition in taken proceeding, or Snyder, does. See also United States law the course of compliance with (7th Cir.1989)(invoking 872 F.2d proceeding, party if the or another same analysis further of the Boulahanis without of- is now whom moving Rules of Evidence and on to ad- opportunity had an and similar fered ... obstacles); potential constitutional dress develop di- motive to Guinan, 836 F.2d 350 United States v. rect, cross, examination. or redirect Cir.1988)(same). But does Boulahanis repre- in criminal cases are not introductory limiting language mention grand jury, and hence sented 804(b)(5) before specifi- statement not Rule “[a] develop the wit- “opportunity” an lack foregoing cally by any covered ex- testimony by direct or cross examina- ness’ Although assumed ceptions”. Boulahanis jury testimony accordingly is tion. Grand 804(b)(1) apply does not even that Rule 804(b)(1)against a under Rule inadmissible grand jury testimony, so clear is inad- criminal case. testimony against missibility of such standards, we know defendant under 804(b)(1), Bypassing Rule 804(b)(1) that Rule indeed 804(b)(5), Salerno Rule one of the judge relied on every de- rule, “applies.” Prior exceptions hearsay residual by” Rule “specifically covered scription is may admit: says which that a court 804(b)(1). treats Rule Boulahanis specifically A statement not covered 804(b)(5) began: if it “A statement exceptions hav- any foregoing but any of the specifically admissible under guarantees ing equivalent circumstantial foregoing exceptions ...”. Evidence trustworthiness, if the court deter- of a rule can express flunks an condition (A) the statement is offered mines 804(b)(5) reads anyway. come fact; (B) of a material as evidence naturally if understand the intro- more we point probative more on the statement is of a ductory to mean that evidence clause any it is offered than for which (“covered”) by specifically addressed kind pro- proponent can evidence which must efforts; (C) the four other subsections one of through reasonable cure ad- laid down for its satisfy the conditions general purposes of these rules and mission, and that other kinds of justice will best. be the interests of rules), Carlson, evidentiary (1983); United States v. 547 F.2d missible 1303 1346, (8th Cir.1976) (admissible) with Unit 459 U.S. Fernandez, coming ed Cir.1989) appear for us It would that the time trustworthy (only extraordinarily issue, this is not the case reconsider the but admissible), jury testimony cert. dis in the unani that as it no difference makes missed, panel in this case af result the reaches mous ; Thevis, (1990) United States v. 527 616, firming the conviction. (not (5th Cir.) (dictum) ad- generally un- leaving the result 804(b)(5)while could drafters (because the not covered thought that its touched, or the Court if the evi- exhaustive) admissible are correcting nothing beyond as evi- do opinion as reliable approximately dence *13 the error. under typographical admissible a be dence that subsections. specific Rule discuss True, does not Salerno is “Evidence the form: the rules take that suggested Some 804(b)(5); side neither B A and if conditions always admissible be admissible testimony would jury grand hold, it not then do conditions hold; if these judge had that Rule. that the believes if the court is admissible not testimony question did that the held any exceed evidence using the benefits requirement, “trustworthiness” satisfy the how Rule shortcomings.” Consider 804(b)(5) but in Rule appears which impeach to offered prior convictions treats does not 804(b)(1). therefore Rule Salerno may be used conviction a defendant: is to subsection resort that whether discuss dishonesty or involves automatically if it appears to be testimony appropriate when judge the statement, otherwise false ironic, though, It would be reliable. more prejudicial effects. probative balances the only that upshot of Salerno if the appeals treated This is how the grand jury testimo may employ prosecutor in a 804(b)(1)in Salerno. Rule asymmetry Any cases. ny in criminal grand to introduce sought case criminal way: confronta run the should having who, person testimony of jury pro amendment the sixth clause of tion compulsory against privilege invoked defendants, prosecutors, tects to self-incrimination, was “unavailable” Although histori statements. out-of-court “party prosecution, at trial. The them hearsay rule do exceptions to the cal of- against [was] whom clause, excep new the confrontation violate although it observing that fered,” objected, presumption against must overcome tions the wit- to examine “opportunity” had the — U.S. -, Illinois, them. White jury, it lacked grand ness before L.Ed.2d 848 trial, it where to that at “similar” motive bugbear that was the by affidavit Trial to opportunity deprived of would be clause; trial confrontation led to the The court witness. cross-examine far removed. testimony is not mo- “similar dispensed appeals affidavit, is an testimony, like Grand equitable the rule portion tive” over which one-sided, parte narration an ex testimony admissible. and held grounds To avoid ample has control. modified, prosecutor 805-08, F.2d the narrations, of unilateral re- introduction Cir.1991). Court Supreme (2d prior 804(b)(1) be provides Rule must versed, concluding that the Rule against party if application only Consistent as written. admissible applied taking both implies is offered had approach the evidence textualist whom 804(b)(5) equally declarant to Rule examine the to opportunity the introduction testimony has That seriously. do to so. motive con- cannot be of trustworthiness indicia persuaded In Salerno to appear trolling; many affidavits prior to introduce Supreme Court to entitlement defendant’s trustworthy. A declarant unavailable testimony by an him is the witnesses confront satisfy the must proponent confronting apparently-untrust- limited 804(b)(1). In our case in Rule conditions is valu- Confrontation worthy witnesses. States, concededly unable the United may estab- large measure able 804(b)(1),con- in Rule satisfy the conditions be accurate seems to lish what may admit the evi- tends on inade- rests misleading deceitful or ascertaining that anyway after dence on the Conditions use foundation. quate I doubt trustworthy. 804(b)(1) the defendant ensure that took Salerno General the Solicitor in circum- confrontation right of retains change the cita- order Supreme Court in of the constitu- at the core that lie 804(b)(1) to stances authority from tion of get ’round Temptation guarantee. tional 804(b)(5) moving to Rule limitation language introductory slighting resisted.

should be *14 ZUCKERSTEIN, Deva Dr.

Ivan VON Jain, Ramaswami, Dr. Mohan bhaktuni Vresk, Plaintiffs-Appellants, Josip LABORATORY, NATIONAL

ARGONNE

Defendant-Appellee.

No. 91-2490. Appeals, Court Circuit.

Seventh Sept.

Argued 1992. Jan.

Decided Rehearing En Banc

Rehearing and 7, 1993. April

Denied notes chal- further Defendant evidence. his sentence enhancement lenges the convic- constitutionally invalid allegedly found Both defendants tions. February 1991. trial aat and Procedure Facts simple traffic began with case This Illinois, on Lansing, lot parking stop ain

Notes

notes court told the about the — Salerno, U.S. -, States v. pre not all stated evidence was (1992) raised. 120 L.Ed.2d respond it and that would not direct sented Supreme The never decided Court has from ly questions. appears It grand jury testimony can be ad whether however, record, that the district al excep hearsay mitted under residual to recall the witness lowed States, tion. McKethan United See questions. up in order to clear U.S. information witness testified to new (1978) (J. dissent Stewart J. Marshall on direct or cross-examination. covered ing denial of of a certiorari because objected the recall at trial to among appeals difference courts properly preserved thereby the witness and admissibility objections appeal. their 804(b)(5)). a conflict under Rule There is evi has substantial among the circuits as district court whether presentation dence Jack & discretion its control of the is admissible. B. Weinstein Margaret Berger, 4 Evi trial. Fed.R.Evid. A. Weinstein’s of evidence See Salerno, 611(a). Permitting 804(b)(5)[01] the recall of a witness dence In grand jury testimony can is within the sound discretion of Court held Maddox, 804(b)(1) court. F.2d be admitted — cert., Cir.), require unless former all (1991); -, rule have satisfied. The ments of the been Liefer, had found that district court case (7th Cir.1985); grand jury not have the David W. Louisell did 1249 n. Mueller, B. Federal guarantees Christopher of trustworthi Evi- circumstantial & (1979). Therefore, we will satisfy ness admission under dence 334 § ruling 804(b)(5). finding That was undisturbed reverse court’s unless Maddox, circuit’s and was not its discretion. 944 F.2d at second decision abused Supreme opinion. in the Court’s discussed

notes L.Ed.2d 509 S.Ct. L.Ed.2d nied, ad unwilling to hold that been "has coúrt Murphy, 696 F.2d (1987); States v. per se violation hearsay is a mission 1982) (admissible), de (4th Cir. Amend Sixth clause confrontation nied, circum- hold in the proceeds to ment”