574 F.2d 1131 (4th Cir. 1978), 76-1837, United States v. West

• Citation: 574 F.2d 1131
• Party Name: UNITED STATES of America, Appellee, v. Calvin W. WEST, Appellant (four cases). UNITED STATES of America, Appellee, v. Floyd Lee DAVIS, Appellant (two cases). UNITED STATES of America, Appellee, v. Joseph Lee DEMPSEY, Appellant.
• Case Date: February 13, 1978
• Court: United States Courts of Appeals, U.S. Court of Appeals — Fourth Circuit

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574 F.2d 1131 (4th Cir. 1978)

UNITED STATES of America, Appellee,

v.

Calvin W. WEST, Appellant (four cases).

UNITED STATES of America, Appellee,

v.

Floyd Lee DAVIS, Appellant (two cases).

UNITED STATES of America, Appellee,

v.

Joseph Lee DEMPSEY, Appellant.

Nos. 76-1837 through 76-1843.

United States Court of Appeals, Fourth Circuit

February 13, 1978

Argued Jan. 14, 1977.

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[Copyrighted Material Omitted]

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Robert L. Sondej, Portsmouth, Va. (Mattox, Sondej, Young & Whitlow, Portsmouth, Va., on brief), for appellant in 76-1840 and 76-1841.

Paul M. Lipkin, Norfolk, Va. (Robert H. Anderson, Jr., Goldblatt, Lipkin, Cohen, Anderson & Jenkins, Norfolk, Va., on brief), for appellant in 76-1843.

S. DeLacy Stith, Portsmouth, Va., for appellant in 76-1837, 76-1838, 76-1839 and 76-1842.

Justin W. Williams, Asst. U. S. Atty., Alexandria, Va., Stephen Wainger, Asst. U. S. Atty., Norfolk, Va. (William B. Cummings, U. S. Atty., Alexandria, Va., on brief), for appellee in 76-1837 through 76-1843.

Before HAYNSWORTH, Chief Judge, RUSSELL and WIDENER, Circuit Judges.

HAYNSWORTH, Chief Judge:

Calvin W. West, Floyd Lee Davis and Joseph Lee Dempsey appeal their convictions for distributing heroin and possessing heroin with the intent to distribute it. The most significant question presented is whether the admission of the grand jury testimony of Michael Victor Brown, who was slain prior to trial, was permissible under Rule 804(b)(5) of the Federal Rules of Evidence and the Confrontation Clause of the Sixth Amendment. We hold that it was.

The convictions challenged here are the product of an extensive Drug Enforcement Agency (DEA) investigation in which Brown played a vital role. Brown volunteered his assistance to the DEA while he was in jail on a drug charge and under a detainer for parole violation. He agreed to purchase heroin under police surveillance.

Each purchase was similar. Brown would contact West or Davis and arrange to purchase heroin. Twice the DEA monitored Brown's calls to West arranging heroin deals. It also monitored one phone call to Davis. On other occasions it seems that Brown simply notified the DEA that he had arranged a purchase.

Each time that the DEA agents received notice that Brown was about to make a purchase, they made arrangements for extensive surveillance. Before each purchase, DEA agents strip-searched Brown to make sure that he had no drugs, and they concealed a transmitter on him. They then searched his vehicle to be sure that it contained no drugs and gave Brown the money required for the anticipated purchase.

According to the government's evidence, on three occasions, Brown went to West, gave West money, and obtained heroin. Twice Brown went to Davis, gave Davis money and obtained heroin. On another occasion, Brown gave West money then accompanied him to meet Dempsey. West then gave Dempsey money and told Brown that they were to meet Dempsey at Griffin's home. Brown and West went to Griffin's home. Dempsey arrived, went to the open window of Brown's car and then entered Griffin's home and told Brown that everything was all right. Brown then returned to his car to find 30 capsules of heroin.

Each time, law enforcement officials observed Brown's movements and obtained photographs of Brown as he met with West and with Davis. After each transaction Brown returned to the DEA office and surrendered the heroin that he had purchased and any money remaining. Each time the agents searched Brown and his car to be sure that he retained no contraband. Agent Scott then discussed with Brown the events that had taken place and composed a detailed summary of what had occurred, which Brown read, corrected and signed. After one of the purchases Brown himself prepared a statement which Agent Scott revised before Brown read, corrected and signed it. Each time, Scott and Brown listened to the tapes from the body transmitter for audibility and voice identification. By reviewing the tapes with Brown, Scott independently became able to identify the voices of the defendants.

On March 8, 1976, the defendants and others were indicted by a grand jury, apparently without Brown's testimony. On

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March 16, Brown appeared before a grand jury and testified under oath regarding his knowledge of the drug traffic in Virginia's Tidewater area. The government attorney read the statements that Brown had signed and periodically asked Brown if they were correct.

As a result of his cooperation, Brown was released from jail, the pending drug charge against him was nol prossed, and the detainer for parole violation was lifted. The DEA also gave Brown $855 for his personal use so that he would not arouse suspicion and jeopardize his cover by being without funds immediately after supposedly selling a large amount of heroin.

On March 19 Brown was murdered in a manner suggestive of contract killers. Four bullets were fired into the back of his head while he was driving his car. According to the government, at least four potential government witnesses in this and related narcotics investigations have been murdered after they had agreed to cooperate. But these defendants have not been charged with Brown's murder, and the government did not offer any evidence to show that they were responsible for it.

On April 22, a week before the scheduled trial date, the government notified the defendants, pursuant to Rule 804(b)(5) of the Federal Rules of Evidence, that it intended to introduce Brown's grand jury testimony at trial. It agreed to give defense counsel all of its evidence, including Brown's arrest record, and transcripts of the tapes of Brown's conversations with the defendants.

After a pre-trial hearing, the district court ruled that the grand jury testimony was admissible under Rule 804(b)(5) because, under the circumstances, it was essential and trustworthy. It also gave the defense a week's continuance after it announced that it would admit Brown's grand jury testimony.

During the trial the government introduced the transcript of Brown's grand jury testimony, the photographs, an expert on voice identification and the heroin. It also played the tapes of Brown's conversations with the defendants. Law enforcement agents testified about their observation of Brown's activities and corroborated Brown's highly detailed grand jury testimony. The government sought to introduce transcripts which it had prepared from the tapes from Brown's body transmitter. Although the district judge found that the transcripts were a fair representation of the taped conversations, he permitted the jury to see the transcripts only while they listened to the tapes and instructed the jurors to decide for themselves what the tapes said.

I.

The defendants contend that the district judge erred in concluding that the transcript of Brown's grand jury testimony was admissible under Rule 804(b)(5).

Rule 804(b)(5) provides:

"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

"(5) Other exceptions. 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."

The defendants do not contend that the grand jury transcript fails to meet the criteria of clauses (A), (B) and (C). Instead, they focus upon the general requirement that the statement have "equivalent circumstantial guarantees of trustworthiness" as statements the admission of which is authorized by any of the preceding four paragraphs. They find a lack of trustworthiness in Brown's criminal record and their lack of any opportunity to cross-examine him. They point to legislative history indicating

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that Rule 804(b)(5) applies only where "exceptional circumstances" lend to the extra-judicial statement a degree of trustworthiness equivalent to that of evidence admissible under other § 804(b) exceptions. ¹

There were present very exceptional circumstances providing substantial guarantees of trustworthiness of Brown's grand jury testimony probably exceeding by far the substantial guarantees of trustworthiness of some of the other § 804(b) hearsay exceptions. Before each contact by Brown with West, Davis or Dempsey, the agents took elaborate steps to assure themselves that Brown possessed no drugs or money other than the money supplied by the agents to effect the purchases. Except when he entered a building and became concealed from their view he was under constant surveillance, and photographs were taken when he was with one of the defendants. Moreover, his transmitter was broadcasting his conversations with the defendants, and a tape recorder preserved those conversations. Moreover, immediately after each purchase, he and one of the agents reviewed what Brown had done, said and observed, and a statement of it was prepared and corrected. The immediate transcription and verification of Brown's statements provide an additional guarantee other admissible hearsay statements lack. ² But the most impressive assurance of trustworthiness comes from the corroboration provided by the observations of the agents, the pictures they took and their recordings of the conversations. Brown had a criminal record, and he was seeking favors to avoid further incarceration, but the circumstances make deception of the agents inconceivable. The agents simply followed, photographed and recorded conversations to such an extent that deception by Brown was substantially impossible....