United States v. Nelson Bernardo Gomez-Lemos

32 juvenile delinquent, finds a alleged

court submitted the “additional” evidence may him to official court commit detention. supporting his motions at the time he filed 5037(c) Specifically, them, section states: or at sentencing hearing occurred five term for which official detention months after he The entered his juvenile plea. for a The may be ordered found to be district court did abuse its delinquent may not juvenile extend— discretion when it declined hold a hear- appellant’s ing on motions. (1) juvenile of a in the case who is less old, eighteen years beyond the than less- er of— III. (A) juvenile when the date be- The decision of the district court is AF- old; years twenty-one or

comes FIRMED. (B) of imprison- the maximum term ment that would be authorized section

3581(b) juvenile if the had been tried and as adult.

convicted an 5037(c). Appellant was U.S.C. seven- § years teen old at the time the district court proceedings Appellant occurred. was offenses, delinquent of

found six four of imprison- which have maximum terms of America, UNITED STATES of years greater (including ment of two Plaintiff-Appellee, permit imprisonment) offenses life if tried and convicted as an adult. sen- GOMEZ-LEMOS, Nelson Bernardo imposed upon appellant tence was based Defendant-Appellant. on, with, 5037(c).8 complies section As appellant’s penal unlawful conduct is made No. 89-2166. law, applicable federal the ACA is not Appeals, United States his case. Sixth Circuit. D. District Whether the Court Abused in Failing

its Discretion to Provide Argued Aug. 10, 1990. Appellant Hearing Ruling Before July Decided His Various Motions

Appellant argues he was de prived process by due the district court’s hearings ruling

failure to prior conduct on his juris motions to dismiss for lack of diction, speedy for lack dispo dismiss

sition, probate balance however, Appellant,

sentence. cites no au thority for the proposition hearing that a

required type with the of motions he requirement makes. There is no Fed.R.Civ.P. or elsewhere to conduct hearing. Appellant should have appellant's (Nov. 30, 8. We Sentencing 1988)); note that while unlawful con- Guidelines Unit- duct L., occurred after November the sen- (9th ed States v. Marco 868 F.2d guidelines tencing directly applicable are not Cir.1989) (“Although appellant concedes that the juvenile R.L.C., delinquents. United States Sentencing apply directly Guidelines do not Male, (8th Cir.1990) Juvenile juveniles, [erroneously] he contends (“The sentencing guidelines themselves do not 5037(c)(1) requires § the court to consider the apply juveniles.”) to individuals sentenced as Guidelines to ascertain the maximum sentence Commission, (citing Sentencing United States adult.”). he received as an Questions Frequently Most Asked About the objection,

defendant’s the district court al grand jury lowed the uncross-examined tes timony co-conspirators alleged of these two pursuant read into to be to Fed.R. 804(b)(5), excep Evid. one the residual light tions to the rule. rulings Court’s recent in Idaho v. — U.S. —, Wright, (1990), Illinois, Lee v. and U.S. 90 L.Ed.2d ruling we conclude that this violated the Confrontation Clause and we therefore reverse and defendant’s conviction remand for a new trial.

FACTS sting operation, Drug

In a 1986 En- targeted forcement Administration Alex large drug impor- as the Cerna leader of ring. tation While the DEA monitored his activities, out planned Cerna and carried drug smuggling import 576 kilo- scheme 17,300 pounds grams of cocaine and Isle, marijuana Michigan into Grosse airplane from It Columbia. was well- pilot planned investigation. DEA Even the plane and crew of the who flew drugs for Cerna were undercover DEA Septem- After landed agents. plane drugs ber were unloaded and September 6, moved to warehouse. On kilograms while the 576 400 of van, being into a cocaine were loaded law personnel entered the enforcement ware- people, including and house arrested six Osorio, Cerna, alleged co-conspirators and Although agents DEA did not Barraza. warehouse, they later find defendant at the nearby arrested him at a hotel where he Donaldson, Atty. Robert Asst. W. the others at the warehouse arrested Detroit, (argued), Atty., of the U.S. Office trial, staying. At Mich., plaintiff-appellee. for being cocaine presented evidence that the Detroit, Mich., (argued), Juan A. Mateo police loaded into the time of van at the defendant-appellant. belonged and was raid to defendant alleged agents distributed New MERRITT, Judge, Before Chief York. NELSON, Judges. MARTIN and Circuit reduction in his sen- exchange for a MERRITT, Judge. Chief years, alleged co-con- tence 20 to 12 person government’s spirator Two testified trial witnesses Cerna subject to drug prosecution, and was cross- Cesar Barraza and defendant before He stated Edeardo testified examination. kilograms being the 400 of cocaine refused to at trial. but Over owned police deal, partner

loaded into the van at the time of in the drug around New York. August raid. in late Cerna testified that Barraza was familiar with city for a arranged transportation large 1987he agreed to leave whenever defendant asked. load of destined for United cocaine Barraza further testified before the partner apparently States. A Columbian grand jury days initially that several after Cerna bought drugs in tes- Columbia. meeting defendant, and he defendant flew 31,1987 August he received a tified that on Ohio, together Toledo, to where were phone stating call defendant’s wife supposed According to meet Frank Turek. speak urgently that needed to to defendant Barraza, to flew under the name defendant, him. called defen- When Cerna meeting “Hazbun.” Instead in Turek told allegedly part dant Cerna that the Toledo, they met two of defendant’s associ- drug belonged and shipment to him de- ates. The group then drove from Toledo to plane manded to know where the contain- Dearborn, Michigan, where Turek was ing partner drugs would land. Cerna’s waiting. At point, Turek told Barraza in confirmed the fact that some Columbia plane drugs load of and informed belonged of the cocaine to defendant. In- him of his duties: Barraza was to drive animosity formed of that existed between Turek and the to Ap- cocaine New York. Cerna prior drug and defendant due to a parently, Turek did not want to drive be- deal, partner Cerna’s Columbian told Cerna he cause was in the illegally. Barraza directly that he did have to deal that, spending stated after a days few in a agents defendant and that defendant’s Turek, defendant, hotel Dearborn with pick up agreed would the cocaine. Cerna others, and several accompanied he arrangement to this and called defendant to group up pick warehouse order to bring Toledo, to tell him to his to drivers police the cocaine. The arrested him in the Ohio. raid on the warehouse. government alleged also called co- Alleged co-conspirator Edeardo conspirator testify Cesar Barraza cousin, Barraza’s also testified before the Although defendant. Barraza tes grand jury and the called him grand tified jury, before the trial he Barraza, as witness at trial. Like Osorio plead stated that he wanted fifth was arrested at the pleaded warehouse and amendment. The District Court ordered guilty under agreement a Rule 11 which him questions. answer When Barra required cooperation. trial, his At Osorio testify, za still refused the District Court pleading also refused testify, the fifth apprised Barraza that he had amendment. The District Court told him pursuant plea agreement to his and that he that he had questions to answer the court’s would separately be sentenced for con pursuant to plea agreement. his After re- tempt cooperated. unless he holding After peatedly requesting that defendant answer contempt Barraza in refusing to answer questions, its the District Court held Osorio questions, the court found Barraza un contempt, pursu- found him unavailable pursuant 804(b)(5) available to Fed.R.Evid. 804(b)(5) ant to and Fed.R.Evid. admitted and hearsay testimony given admitted his his testimony given without cross- without cross-examination before grand jury. examination jury. Barraza, Like Osorio testified before grand jury provided Barraza’s support he theory for the met defendant that defendant while playing part owned soccer on Beach. cocaine Cerna im- Miami He said ported him planned telephoned and that defendant that defendant and to dis- offered tribute approximately it in New York. him if he fly would $1000 Barraza stated D.C., van, he Washington, pick up met defendant for the first time and drive playing while agreed soccer on Miami it Beach. Ac- to Detroit. Osorio and flew to Barraza, cording to Washington person defendant asked Barra- met a where he defen- za if he would like to money by make some allegedly dant told him to meet at the air- driving Turek, Frank alleged van, port. picked defendant’s up The two of them made, cross-examination of adverse witnesses is repairs were shop where it to a took Michigan deeply legal with the rooted in our culture. See then Osorio drove and 1015-16, Arriving Iowa, airport. Coy he met at the person compan- Dearborn, traveling 2798, 2799-2800, Osorio defen- at a hotel where subjects upon ion met defendant “There are few ... Barraza, others, including dant other [the Court] in the spending some time staying. After nearly courts have been more unanimous hotel, the ware- drove the van to Osorio expressions than in their of belief that the in the police arrested him where house and cross-examina- of confrontation raid. re- tion is an essential and fundamental quirement for the kind of fair trial which is person-

Although some law enforcement country’s goal.” constitutional Point- Cerna, testified, Barra- co-conspirators nel 400, 405, Texas, er v. 380 U.S. S.Ct. za, the essential testi- provided and Osorio 1065, 1068, 13 L.Ed.2d 923 that defendant mony prove tended to of cocaine. The kilograms the 400 owned right to and cross-examine confront establishing finding made no District Court accomplishes sym- adverse witnesses both or prevented either Barraza First, goals. and functional the Con- bolic testifying at trial. Osorio perception advances the frontation Clause by “ensuring that convictions of fairness I. charges on the of unseen will not be based the testimo- The District Court admitted unchallengeable hence and unknown—and co-conspirators Barraza and Osorio ny of Lee, —individuals.” 476 U.S. 804(b)(5), residual under Fed.R.Evid. Second, Confrontation at 2062. S.Ct. applicable rule exception to the reliability in criminal tri- promotes Clause This rule a declarant is unavailable. when noted, con- As the Court has als. permits introduction frontation by specific exception “but not covered (1) give that the witness will his insures guaran- having equivalent circumstantial impressing under oath—thus statements (1) “the tees of trustworthiness” where the seriousness of the matter him with a mate- is offered as evidence of statement possi- against by the lie guarding fact,” (2) probative any than it is more rial (2) perjury; forces bility penalty for of a proponent other evidence that to cross-examina- to submit witness obtain, (3) general pur- reasonably “the tion, legal engine ever in- ‘greatest Federal Rules of poses of Evidence] [the truth’; discovery of vented for the [and] justice and the interests of will best be (3) is to decide the permits of the statement into served admission the demeanor defendant’s fate to observe evidence.” statement, of the witness Defendant contends that introduction assessing aiding jury in his cred- thus jury testimony Barraza and Osorio’s ibility. right sixth amendment of con- violates his 149, 158, Green, California requirements of Fed.R. frontation and the (1970) 1930, 1935, 26 L.Ed.2d 804(b)(5). agree with defendant Evid. We omitted). (footnote prohibits the that the Confrontation Clause testimo- introduction of the two witnesses’ Supreme Court cases longA line of ny. Clause has the Confrontation interpreting strong presumption against created a

II. co-conspirators’ state trustworthiness conspiracy made after a has part, sixth amendment ments that are In relevant in arrest. In the most recent prosecu- criminal terminated provides that all “[i]n Illinois, tions, the Court enjoy right point, Lee v. the accused shall ... case on co-conspirator’s confes against with the witnesses held inadmissible to be confronted “truthfinding func- It said that the This of confrontation and sion. him....” unique tion of the Confrontation Clause is to the co-conspirator’s Lee, confession accomplice’s ly an and, find, threatened when confes subject dangers. to similar sought introduced sion is to be a The Court in Lee noted that the criminal defendant without the benefit of co-conspirator may Lee’s have been “the 476 U.S. at cross-examination.” 106 product of the codefendant’s desire to shift co-conspirator’s Due to a spread blame, favor, or curry avenge him “strong implicate motivation the defen self, or divert attention to another.” Id. himself,” dant and to exonerate a co-con 545, dangers 106 S.Ct. at 2064. The enu spirator’s statements about the defendant’s merated the Court in Lee exist in the in the crime involvement should be viewed grand jury testimony of Barraza and Oso “special suspicion.” (quoting Id. from rio. That Barraza and Osorio had entered States, 123, 141, Bruton United plea agreements into with the Government (1968) prior to their jury testimony does not (White, J., (citations dissenting) omitted)). necessarily lessen the likelihood suspicion “reality This stems from the curry would want to favor with the Govern process, namely, the criminal that once ment, avenge themselves, spread partners recognize ‘jig a crime that the by implicating blame defendant. Further up,’ they any tend to lose identity of more, the mere fact that Osorio and Barra immediately antago interest and become gave testimony oath, za in the “rela nists, rather accomplices.” than Id. 476 tively setting” solemn grand jury pro of a 544-45, at U.S. 106 S.Ct. at 2063-64. In ceeding, guarantee does not the trustwor bar, undisputed the case at it is that the thiness of implicating their statements de “jig up” alleged co-conspirators for [was] 753, fendant. Jago, See Tolbert v. Barraza and Osorio when testified (6th Cir.1979) J., (Engel, concurring), against hearsay defendant. Their state denied, 1022, 682, cert. 444 U.S. 100 S.Ct. ments are inadmissible under the Confron (1980). 62 L.Ed.2d 655 See also Garner v. just tation Clause as were the statements States, 936, 938, United 439 U.S. 99 S.Ct. in Lee. (1978) J., (Stewart, 58 L.Ed.2d 333 Lee, petitioner In and a co-defendant dissenting certiorari) (“[t]hat from denial of were involved in a double In murder. find ... evidence grand was ... before a ing petitioner guilty murders, of both reliability”). adds little to its judge trial expressly portions relied on strong predisposition against Court’s the co-defendant’s confession which con co-conspirator’s the use of a testimony that petitioner’s flicted with testimony that she has not subject been did not cross-examination commit one of the murders and that was or, Perhaps she acted in well-established before Lee. alternatively, self-defense significant passion killing under intense most case where the Court other person. bar, spoken In the case has on reliability at of a co-con- alleged co-conspirators spirator’s Barra statement is Bruton v. United za and subject States, which was 123, 1620, not 391 U.S. 88 S.Ct. defendant, cross-examination (1968).1 is similar case, L.Ed.2d 476 In that defen- Alabama, opinion Douglas 1. The Court's accomplice accomplice’s ine his as to the confes- 415, 1074, 85 S.Ct. sion. Id. at 85 S.Ct. at 1075. The Court opinion foreshadowed its later in Bru conviction, holding reversed the defendant's Douglas, ton. In a defendant and his accom prosecutor’s reading accomplice’s that the of the plice separately were tried for assault with in equivalent confession was to the introduction of tent to accomplice, commit murder. The who defendant, against evidence id. at 85 S.Ct. already had planning been convicted and was right and that defendant’s confrontation appeal, pleaded the fifth amendment when opportuni- was violated because he did not have testify against called to the defendant. On the ty to confirm the of the confession or pretext questioning accomplice, prose question accomplice as to the truth of his confession, cution implicated accomplice's read the 419-20, statement. Id. at 85 S.Ct. at 1077-78. conviction, defendant. After his de reversal, ordering the Court noted that the appealed fendant on the basis that his sixth accomplice’s confession added a "crucial link” right amendment of confrontation had been vio government’s case and that the confession lated because he had not be able to cross-exam- powerfully incriminating” jointly tried Bruton and Evans its face. dants trial, Richardson, robbery. At Evans postal for armed 107 S.Ct. at pursuant his take stand Similarly, refused to 1707. Barraza and Osorio’s case, right; to make its fifth amendment jury testimony “expressly implicat- who government put forth a witness provided ed” defendant and “powerfully to him had confessed testified Evans incriminating” him, against espe- had Bruton committed that both Evans and light of cially paucity of direct or at 1621. Id. 88 S.Ct. the crime. proof part he inferential owned of the instructing by the trial limiting Despite a shipment. cocaine judge that confession Evans, Court nonetheless against used III. con- that the introduction Evans’ found principle rendering This un inadmissible had not been cross-examined fession which co-conspirator’s hearsay cross-examined con- violated Bruton’s by Bruton statements do not come within the Id. at 88 S.Ct. at frontation. exception co-conspirator for established suspect” credibility Noting “inevitably made during statements and in furtherance accomplice’s an statements about conspiracy is consistent with the co-conspirator, the Court stated alleged Court’s instructions Ohio Roberts. unreliability of such a confession is that the alleged “intolerably compounded” when the Roberts, the Court set forth “a accomplice and cannot be “does 136, general approach” analyzing by cross-examination.” Id. at whether tested excep at 1628. The Court added that one of admissible under threats a fair trial was rule also tions to meets “[i]t direct- that the Confrontation Clause was requirements of the Confrontation Clause. (citation omitted). ed.” Id. 448 U.S. at 100 at 2538. The first S.Ct. prong requires prosecution the to demon Bruton, In cases decided after the Court unavailability of the strate the declarant analysis. has followed the same For exam against whose statement it wants use Marsh, ple, in Richardson v. the Court Id. to both Barraza and defendant. As nontestifying upheld the admission of a question not the defendant does co-conspirator’s against confession the co- unavailability of these witnesses. The sec joint only conspirator trial but himself prong requires the ond Roberts limiting there because was a instruction hearsay statement of an unavailable declar- and all references to the defendant had adequate reliability.” “indicia of ant bear 200, 211, 107 been redacted. 481 U.S. S.Ct. 66, 100 Roberts, In the at S.Ct. at 2539. Id. 1702, 1709, (1987). 95 L.Ed.2d 176 In Cruz “[reliability may in Court stated that York, intro v. New the Court disallowed proffered if the evidence “falls ferred” nontestifying co-conspirator’s duction of hearsay firmly exception.” within a rooted which incriminated confession prosecution note that the does not Id. We though the not to jury even was instructed Barraza or contend that either Osorio’s consider confession defendant. firmly grand jury testimony falls within a 186, 107 1714, 95 481 U.S. S.Ct. L.Ed.2d 162 exception, as that hearsay established (1987). In explaining reasoning, co-conspirator’s statement. Fed. See distinguished the co-con Court Marsh 801(d)(2)(E). Accordingly, testi R.Evid. spirator’s statement in that from the case possess by mony not its nature does by noting one in Bruton that the nontesti- “firmly one of co-conspirator’s reliability indicia of fying in Bruton statement exceptions. implicated Bourjaily v. “expressly the defendant as rooted” See States, 171, 182-84, accomplice” 107 nontestifying of the co- United 483 U.S. [the] 2782-83, conspirator and that was 97 statement S.Ct.

provided only "the evidence” Id. at S.Ct. at 1077. direct to establish the crime. 85 weapon that the defendant had fired used in 332

Instead, Roberts, prosecution reliability requirements of the Confron presumption against must defeat ad- Clause. Wright, tation 110 S.Ct. 3139. In Barraza missibility of and Osorio’s Wright, changed the Court course from its testimony by showing that their testi- plurality ruling Evans, earlier in Dutton v. mony possessed “particularized guarantees 91 S.Ct. (1970)

of trustworthiness.” at (plurality opinion). Dutton, four (footnote omitted). S.Ct. at 2539 Con- of the members Court stated that a court “guar- frontation evaluating Clause dictates that these reliability hearsay evi antees of trustworthiness” be suffi- must could look corroborating dence departure cient cause a not to “material determining as one factor in reliability general from the of the [hearsay] reason hearsay. rejecting of the Id. at 88. rule.” at (quoting Id. approach, Wright the Court in instructs us Massachusetts, Snyder from to focus “relevant circum 330, 332, 78 L.Ed. 674 stances” “surround the of the (1934)). [hearsay] statement that render particularly worthy declarant of belief.” above, As discussed outside of the co- 3148. The rationale for the conspirator exception to the rule disapproval Court’s use of of the corrobora (where during a statement is made tion from other witnesses follows from the conspiracy course of the and not after it exceptions of the nature established ended), has Court has consist- hearsay rule. guaran “The circumstantial ently concluded that the uncross-examined tees of trustworthiness on the vari alleged co-conspirator of an specific exceptions ous rule sufficiently reliable to meet the re- are are based those that existed at the time quirement Clause. Confrontation the statement was do not made and include Our review factual circumstances that may by using those be added hind surrounding testimony of sight.” (quoting Id. Huff nothing Barraza and Osorio reveals excep- (7th Motor Corp., White tional strong which would overcome this Cir.1979)). stated, As the in Wright principle unreliability. Accordingly, using corroborating support evidence to presumption find that the reliabili- “ hearsay ‘particularized guar statement’s ty has not been defeated. of permit antees trustworthiness’ would ad of presumptively mission unreliable state IV. ment boot-strapping on the trustworthi The District in relying Court erred trial,” other ness of evidence at a result partially on corroboration from other wit requirement which is “at odds with the “particularized guarantee[] nesses as a of hearsay evidence admitted the Con trustworthiness” under Citing Roberts. trustworthy frontation Clause be so opinions the Sixth Circuit United States v. cross-examination of the declarant be of Curro, (6th Cir.), denied, 847 F.2d 325 cert. marginal utility.” 110 S.Ct. 3150. Ac 843, 116, 488 109 U.S. 102 L.Ed.2d 90 cordingly, we find that the District Court Barlow, and United States v. 693 relying also erred in corroborating on evi (6th Cir.1982), F.2d denied, 954 cert. 461 finding in dence Osorio and Barraza’s testi 945, 2124, 103 77 L.Ed.2d 1304 mony sufficiently satisfy reliable the (1983),the District significant Court found Confrontation Clause. reliability analysis the fact that the hearsay testimony of co-conspirators Bar V. raza and Osorio was corroborated. How ever, decided, since these cases were the appellate None other decisions Supreme has reversed upheld itself the have the of use uncross-exam- question of whether corroboration from grand jury ined under a testimony residual may other witnesses be considered in eval exception provide to the rule per- uating hearsay testimony whether authority altering meets suasive the outcome

333 already clearly- cooperating witness has not been the Court Wright, case. this that, cooperating statement Even if the co-con unless a sentenced. stated exceptions general one of the already comes within has been the spirator sentenced judge hearsay rule, trial must testimony, of his still time “that circumstances relevant look possesses regarding security influence [hearsay] of surround prison and location of the where the level render declarant statement and that co-conspirator is Addi to be incarcerated. worthy belief” in determin particularly that, tionally, we note even in situations pos hearsay statement ing whether prosecutor strongly has advised where guarantees trust “particularized sesses cooperating co-conspirator witness Contrary at 3148. 110 S.Ct. worthiness.” government’s desire the witness rule, have taken into many courts to this testifying, tell the truth when witnesses in de corroborative consideration ignore government’s in sometimes testi ciding whether the uneross-examined structions, believing government’s pri meets trustworthi mony of witness securing goal to mary be the of a convic See, e.g., of Roberts. requirements ness regardless culpability, tion and therefore 650, Donlon, 909 F.2d v. United States may witnesses fail truthful these (1st Cir.1990); v. United States 654-55 ly. Without of a co-con cross-examination (1st 1, Cir.), Zannino, 7 cert. 895 F.2d incriminating a con spirator, confession — 1814, U.S. —, denied, 110 S.Ct. 108 suspect generally should federate 327; Curro, (1990); 847 F.2d L.Ed.2d 944 reasons not be admitted for several 350, Guinan, F.2d 836 United States Lee, Bru given by Court in (7th Cir.), denied, 487 U.S. 356-57 cert. ton, Richardson, The fact that and Cruz. 108 S.Ct. L.Ed.2d testimony arises the uncross-examined Marchini, (1988); United States govern plea agreement with the from a Cir.1986), (9th de 763-64 cert. F.2d principle. ment does alter nied, 107 S.Ct. allowing govern- a rule (1987); Moreover Mur United States v. key Cir.1982), replace live (4th ment to F.2d cert. phy, 696 denied, grand jury or other prior witnesses Barlow, (1983); power- creates a extra-judicial L.Ed.2d statements acquiesce overrules these Wright prosecutors case ful incentive for in, plan, unavailability cases. of wit- even or prevent live confronta- order to nesses conclusion, note that co-con cross-examination witnesses tion and plea who have entered into a spirators plan a It is much easier to the courtroom. agreement those who been a set a of contested trial and convince immunity by often government the still use if the hears the direct of facts possess the to lie noted in Lee motivations It more testimony from one side. is also example, entering earlier cases. For exaggerate, will omit likely that witnesses plea agreement receiving or use im into a they their falsify or if know facts crucial nothing change to munity does co-con subject to live confronta- story will not be “avenge if he spirator’s desire to himself” hold We must and cross-examination. tion Furthermore, a co-conspira inclined. is so law, the faith of common to the ancient plea agreement who has entered into tor Bill of by founders in the incorporated the strong “curry frequently has desire to and cross- Rights, that live confrontation “divert government with the favor” in of the courtroom examination witnesses hopes in the to another” that attention finding to truth in a criminal key the recom is will make favorable that will sentencing judicial norm behavior judge if the trial2 —a of mendations (1696), Paine, Abridgement Rex v. 5 Mod. In Rolle’s in sworn In King’s rejected party justices conferred with Bench is because "the other Pleas, sworn, justices Common where- party is the of the Court of cross-examine the which declared, (1668). upon it was the pl. "the Chief Justice common course.” 2 Roll Abr. disregarded only compel- mally proceeded for the be most on this sworn kind of hear- ling cases, reasons.3 in say equity for example, and the notorious Court of Star Chamber was em- Accordingly, REVERSE defendant’s powered proceed way to in same crimi- conviction and REMAND a new trial. Coke, cases. Institute, nal See Fourth NELSON, Judge, Circuit Chapters A. DAVID 5 and 64. concurring. The Court Star of Chamber was abol I my colleagues panel, be- Like ished in its name has been term precedent unless lieve that opprobrium throughout of English- result, try compels a different we should speaking world from that time to this. The give words of the Confrontation Clause framers of our Constitution were well meaning commonly attributed to them of England’s unhappy experience aware time the Sixth Amendment was procedures, Star Chamber and the adopted. very It is sometimes difficult to designed, part, Sixth Amendment was in meaning precise language ascertain the of objectionable forbid use of most old, difficulty no two centuries but is procedures in these the criminal courts of presented here. the Sixth When Amend- the United If States. the Sixth Amend adopted, surely incorporated ment was it is applied ment to be in accordance with its Judge eloquently what Merritt de- Chief then, original meaning, hesitancy I no as scribes “the faith of ancient the common saying in presumption “the inadmis that live law ... confrontation and cross- sibility accusatory hearsay accorded state examination of witnesses the courtroom pursuant ments not firmly admitted to a key finding the truth in a criminal hearsay exception,” rooted Idaho trial.” — U.S. —, Wright, published When Sir Edward Coke his In- enough is strong century, stitutes the seventeenth there apply accusatory hearsay statements England were courts in still that relied on grand jury.1 made under oath before a depositions written taken “commission- ers” acknowledge, nonetheless, who elicited must without cross- We although examination and without the defendant be- the constitutional of con- ing present. Chancery extends, terms, The Court of nor- frontation2 its to “all” opinion of depo (1982). both courts that these [sworn] case at evidence, bar, sitions should not be the district court made no conclusive factu- being present defendant not when finding procured al that defendant the unavaila- mayor, taken before the and so had lost the bility of either Barraza Osorio. Hepb Queen benefit urn, cross-examination." (7 Cranch) 3 L.Ed. 348 supplement Judge 1. To Chief Merritt’s discus (1813), Chief Justice Marshall wrote: “Its intrin antipathy sion of the common law’s historic weakness, incompetency satisfy sic hearsay, even sworn I invite the reader’s atten mind of existence the fact and the frauds excerpt tion from Sir Matthew Hale’s cover, might practiced under its com History reprinted the Common Law at Vol. 5 support bine to rule evidence is Lerner, of Kurland & The Founders’ Constitu totally Morgan, inadmissible." See also E. Some tion, page (1987). posthumously Published Anglo-American Problems Under the of Proof presents Hale’s work a detailed and System Litigation 106-17 persuasive highly why statement of reasons tes timony given private “in before a Commissioner example, compelling 3. For one reason dis Two, couple grossly and a of Clerks” is inferi regarding judicial this norm of live confronta presentation open or to the of evidence in court tion and cross-examination exists defen where including, all interestingly with procured unavailability dant has somehow of the witness who refuses to concerned— enough, jury having right members of the testify. In such — cases, questions ask of witnesses. courts have deemed defendants to right "waived" their of confrontation and have axiomatic, course, right is It of allowed that otherwise inadmissible of testi See, mony. e.g., 1193, Taylor, confrontation Steele v. includes of cross-examina- 684 F.2d (6th Illinois, 539, Cir.1982), denied, 530, 1200-02 1053, cert. tion. Lee v. 476 460 U.S. 106 U.S. S.Ct. 1501, 2056, 2065, (1983); (1986); 103 S.Ct. 75 L.Ed.2d 932 90 L.Ed.2d 514 Pointer v. Thevis, 616, Texas, 400, 404, United States v. 665 F.2d 380 632-33 U.S. 85 S.Ct. 13 (5th Cir.), denied, 1008, cert. 456 U.S. 102 S.Ct.

335 of of only Court was one a number factors we prosecutions, Supreme criminal holding testimony cited admissible: time found reason has from time to “Additionally, testimony, statements Louzon’s deliv- of allow admission grand jury appear- ered at his second the literal “might thought violate that be ance, testimony tracked the of first Id. Clause.” terms [Confrontation] appearance. testimony given The was Exclusion such state- at 3145. 110 S.Ct. under oath and never recanted. It was norm, Supreme Court ments is the but which involved matters about Louzon recognizes necessity” a “rule of knowledge. had first-hand At the second un- are statements of witnesses who appearance, immunity had use Louzon testify may sometimes at trial available and, thus, had additional motivation for do such statements admitted. Where be clear, telling the also truth. It is as the hearsay ex- firmly rooted not fall within a observed, by testifying that district court of the utterance ception, the circumstances grand jury Louzon him- put before the guarantees of provide “particularized must risk, or felt self at at least he was at guar- unless these trustworthiness” —and risk, one either of which another indi- test of are clear ... that the antees “so Finally, the reliability. cator of testimo- marginal would cross-examination ny internally itself was consistent necessity over- utility,” the rule of cannot light other made believable facts Id. at the terms of the Constitution. come apparent at trial.” 847 F.2d at 327. 3148-49. These indicia of trustworthiness resem Supreme yet has not had occa- Court ble, present respects, in several those the test of cross-ex- sion to decide whether Barlow, (6th States United utili- “marginal be of amination would Cir.1982), denied, cert. testimony, not in the of sworn ty” case (1983), 77 L.Ed.2d 1304 another false, grand obviously delivered before a published upheld decision where we least, speaking, grand testimony given such jury. Generally admissibility traditionally by a witness who was not available to testimony viewed has not been Although the testify at trial. substance “special suspicion,” see Lee v. with grand jury testimony in was Barlow Illinois, by separate testimonial corroborated (1986), that attaches L.Ed.2d evidence, again one physical this was but police- to unsworn to a statements pertinent. factors considered of several we remains man at the time of an arrest. It factors the circumstance Other included open question an whether the given immunity that the declarant had been reliability will the indicia of view prosecution and thus “had no motive normally grand accompanying jury testimo- exculpate implicate the ny adequate make as herself,” 962; the circumstance id. at trial if the witness is not admissible jury testimony was based on there. available knowledge; and circumstance personal my I colleagues, am not sure that Unlike itself, testimony did not relate question open an in our remains one activity. of criminal In addi to evidence Curro, circuit. States v. United said, tion, appropri we trial court (6th Cir), denied, F.2d 325 cert. for the ately examine the reason unavaila a bility of the witness. published years decision two after Lee v. unavailability The reason for the Illinois, upheld we a criminal conviction are concerned two witnesses whom despite the introduction at trial of testimo to have been in the case bar seems ny given before a a witness testify. Wit- simply afraid both (a Louzon) convicted felon named who later explained from the Barraza stand ness jury grand committed suicide. Louzon’s family just I don’t feel ... “I have a and testimony by independent was corroborated my jeopardize family.” I to Wit- that want evidence—a circumstance that under Idaho if he told when asked had not ness unwilling government is to Wright weight entitled to no this he was —but for suggests grand jury fear himself and his that he was in Barlow testi because any mony in give answer all. issue those would have family, refused to cases obvious,” found, sufficiently trustworthy district court been deemed “[I]t’s cases, is both testify.” afraid to warrant admission trial. In witness “that this of the made a the statements declar finding court unavailable similar district oath, given subject Barraza, ants were to the respect adding with that penalties perjury, and were never rec there is no direct it “[w]hile evidence^] In anted.3 both cases the statements appear be may that the Defendant have would grand jury fore were made under in had a role witness unavail- grant immunity of prosecution. from And able.” both in cases the had declarant direct supposing have no at all for We basis knowledge of the matters discussed. government that it was the the witnesses Nothing in v. Wright Idaho makes it inev of, were afraid and not the It defendant. itable that and would Curro Barlow be would be fanciful to assume that una- differently today; grand decided if the and vailability might of the witnesses have jury testimony in Curro and Barlow would by government. planned been our today, I say be admissible am frank to that country, fortunately, even the most zealous why I can see no jury reason unlikely prosecutors of is vio- threaten testimony of and Messrs. Barraza Osorio lence; although it is and that conceivable not would likewise be admissible. government preferred have would that Assuming, contrary assumption of testify, Messrs. Barraza and Osoria not it my colleagues, that Curro and Barlow government is likelier far that the would good circuit, still may law this I must preferred have their hear come to terms tradition testimony testimony live. read Canned published panel which court teaches another is seldom as effective as opinions subsequent must be followed directly hears wit- panels. The latest version of our “Court ness. says subject: Policies” this on the Although suspect no have reason to “Reported panel opinions binding are government had anything to do Thus, subsequent panels. subsequent no with the refusal of Barraza and Osorio published opinion panel overrules of a follow, course, testify, it does not panel. previous Court en banc considera- prevailed upon the defendant to re- them required published is tion overrule main A party might silent. third done opinion of this court.” Court Policies- initiative, so on his own or the witnesses Circuit, (Spring 1991). Sixth Section 10.2 might have been afraid of the defendant my as Given doubts to the current status having without the any- defendant’s done Barlow, I am constrained to Curro thing inspire such fear. If the trial say government applies that if the for re- court had been able find as a fact that hearing ease, en support banc in this I shall witnesses, the defendant silenced the I (This application. imply any does not would have hesitancy holding had no predisposition change my views on the that there was a waiver defendant’s panel I merits the case. think the is rights under the Confrontation Clause. On reading correct of the Confrontation us, however, the record before I see no Clause, and, having adequate basis finding for a of waiver. error, I argued harmless believe the defen- holdings Under our Curro Bar- trial.) is dant entitled to a new low, finding unnecessary waiver if grand jury testimony appears trustwor- thy. separate Even without the corrobo-

rating evidence that Idaho v. tells Wright irrelevant, logic us is Curro bar, similarly, jury testimony, the case at the witnesses but never recanted. opportunities several to recant their

Case Details

Case Name: United States v. Nelson Bernardo Gomez-Lemos

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 16, 1991

Citation: 939 F.2d 326

Docket Number: 89-2166

Court Abbreviation: 6th Cir.