UNITED STATES of America, Plaintiff-Appellee, v. William CURRO, Defendant-Appellant.
No. 86-2028.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 15, 1987. Decided May 26, 1988.
847 F.2d 325
Similarly, in United States v. Smith Grading and Paving Inc., 760 F.2d 527 (4th Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 524, 88 L.Ed.2d 457 (1985), the court concluded that evidence which might be inadmissible under
III.
Although we agree that defendant Horton was not given a perfect trial, we conclude that none of the errors committed below, either singly or in combination, were sufficient to mandate reversal of the conviction. Accordingly, the judgment of the district court is AFFIRMED.
Robert A. Perez (argued), Cincinnati, Ohio, for defendant-appellant.
Before MARTIN and GUY, Circuit Judges, and JOHNSTONE, District Judge.*
RALPH B. GUY, Jr., Circuit Judge.
Defendant, Curro, was convicted of engaging in a racketeering enterprise,
I.
A detailed recitation оf the facts is not necessary for consideration of the issue raised on appeal. Curro, along with several others, was indicted in a five-count indictment charging him with participation in a racketeering enterprise involving drugs, arson, counterfeit money, and theft from an interstate shipment. Conspiracy and various substantive offenses were also charged. While the pre-indictment investigation was being conducted, Edward Louzon was called before the grand jury as a witness. Louzon, a convicted felon, was involved in criminal activitiеs with some of the defendants in this case but was never prosecuted. Louzon made two grand jury appearances. At the first grand jury appearance, there is no indication that he had any type of immunity from prosecution. At his second appearance, it is clear that he had been promised immunity.
Subsequent to Louzon‘s second grand jury appearance, but prior to trial in this case, he committed suicide. The government filed a
On appeal, defendant concedes that Louzon was “unavailable” and that the government gave proper notice. He also makes no serious challenge to the proposition that Louzon‘s testimony was probative оf material facts. Defendant primarily argues that the testimony was not trustworthy and that it was not “more probative ... than any other evidence which the proponent can procure through reasonable efforts.” We address these contentions seriatim.
A.
On the issue оf trustworthiness, defendant argues that Louzon had two reasons to falsify testimony. First, Louzon wanted to avoid prosecution himself and, second, he was angry with J.D. Thornton, one of the defendants. The starting point in our examination of this issue is that the district judge has broad discretion in determining whether statements from unavailable witnesses are trustworthy. United States v. Carlson, 547 F.2d 1346, 1354 (8th Cir.1976), cert. denied sub nom. Hofstad v. United States, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). Based on a number of factors, we are inclined to agree with the district court that this testimony was trustworthy. To begin with, the testimony was extensively corroborated. United States v. Barlow, 693 F.2d 954 (6th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983). It was also voluntary. Barker v. Morris, 761 F.2d 1396, 1401 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986). Additionally, Louzon‘s testimony, delivered at his second grand jury appearance, tracked the testimony of his first appearance. The testimony was given under oath and was never recanted. It involved matters about which Louzon had first-hand knowledge. At the second appearance, Louzon had use immunity and, thus, had additional motivation for telling the truth. It is also clear, as the district court observed, that by testifying before the grand jury Louzon put himself at risk, or at least felt he was at risk, either one of which is another indicator of reliability. Finally, the testimony itself was internally consistent and believable in light of other facts made apparent at trial.
As for the fact that Louzon was angry with J.D. Thornton, we first note that defendant Curro, and not Thornton, is the one raising the issue. Although Curro and Thornton were friends, there is no indication that any animus Louzon may have held toward Thornton washed over on Curro. In fact, there are many instances in Louzon‘s testimony when he clearly differentiates between the culpability and involvement of Curro and Thornton for various criminal acts.2 We find, as did the district court, that this testimony had “equivalent circumstantial guarantees of trustworthiness” as is required by
B.
Defendant‘s argument that the testimony should not have been admitted because it was too well corroborated, merits little attention. To begin with, this argument is inconsistent with defendant‘s arguments on trustworthiness where he contended there was insufficient corroboration. Second, when
Since Louzon‘s testimony before the grand jury related to several members of this criminal enterprise and also related to several different criminal acts, it was critical to the government‘s establishment of the RICO charge elements. The mere fact that, in a сase involving multiple parties and multiple offenses, there is some overlap between the testimony of available witnesses and a non-available witness does not result in a violation of the safeguard provisions of
II.
Defendant‘s argument as to claimed error in admitting co-conspirators’ statements under
Since our decision in United States v. Vinson, 606 F.2d 149 (6th Cir.1979), cert. denied, 444 U.S. 1074, 100 S.Ct. 1020, 62 L.Ed.2d 756 (1980), it has been the rule that in making a
Curro‘s final argument is that the district court stated its conclusions, but did not indicate specific reasons why it found the admitted statements to be made during the course and in furtherance of the conspiracy. There is apparently no case authority dealing directly with this precise question in a comparable fact situation. Nevertheless, we find guidance in some of the general principles which govern the admissibility of evidence. The
The conspiracy alleged in thе indictment ran from “January 1, 1981, through the present [October 29, 1985], both dates being approximate, the exact dates being unknown....” Due to the fact that a RICO enterprise offense was charged, there were numerous crimes and numerous persons implicated. Since Louzon‘s testimony related to the time span alleged in the indictment, it is clear that it was relevant to events and statements made “during the course” of the conspiracy. Also, since the offense charged was a free-wheeling RICO conspiracy, there were many different criminal acts involved, all of which were “in furtherance of” the conspiracy. Thus, in this case it was clear that the statements in question were made “during the course and in furtherance of” the conspiracy. It is equally clear upon review that the trial judge‘s conclusion was correct. We caution, however, that a mere conclusory statement will not always suffice. United States v. Mahar, 801 F.2d 1477 (6th Cir.1986). In Vinson, we set forth three methods by which the court may deal with the co-conspirator exception to the hearsay rule. Vinson, 606 F.2d at 152-153. Where the court elects, as was done here, to admit the hearsay statements subject to later demonstrations of their admissibility, the trial burden is eased as the case goes forward without interruption. However, the burden on the trial judge is increased since a finding must be made that the government has demonstrated, by a preponderance of the evidence, that a conspiracy existed, that the defendant against whom the statements are hearsay was a participant, and that the statement was made in the course and in furtherance thereof. In this cаse, we are able to say with confidence that the government met its burden, but, as we stated in Mahar, “[a]n appellate court is not the proper forum to conduct the needed factual hearing required under [United States v.] Enright [579 F.2d 980 (6th Cir.1978)] and Vinson.” 801 F.2d at 1503.
AFFIRMED.
JOHNSTONE, Chief District Judge, concurring.
While concurring with the conclusion reached by the majоrity, I write separately because the transcript of Louzon‘s Grand Jury testimony included extensive statements not related to or in the furtherance of the conspiracy, which statements were hearsay to the second and third power. A large portion of the trаnscript was admissible under the reasons stated by the majority; other portions were not. These inadmissible, non-conspiratorial statements could have been excised from the transcript before permitting it to be read to the jury. To bootstrap the inadmissible evidence through
* Honorable Edward H. Johnstone, United States District Court, Western District of Kentucky, sitting by designation.