U.S. v. Kim, 78-1627

• Decision Date: 12 March 1979
• Docket Number: No. 78-1627,78-1627
• Citation: 193 U.S. App. D.C. 370,595 F.2d 755
• Parties: , 4 Fed. R. Evid. Serv. 84 UNITED STATES of America v. Hancho C. KIM, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 755

595 F.2d 755

193 U.S.App.D.C. 370, 4 Fed. R. Evid. Serv. 84

UNITED STATES of America v. Hancho C. KIM, Appellant.

No. 78-1627.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 16, 1979.

Decided March 12, 1979.

N. David Povich, Washington, D. C., with whom Kendra E. Heymann, Washington, D. C., was on the brief, for appellant.

Kathleen E. Voelker, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Asst. U. S. Atty. and John T. Kotelly, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Defendant Hancho C. Kim was convicted of conspiracy to defraud the United States ¹ and of making false declarations before a grand jury. ² Allegedly, Kim received money from the Korean Central Intelligence Agency (hereinafter KCIA) for the purpose of bribing United States Congressmen (conspiracy) and lied to the grand jury when he denied receiving the money (false declaration). Kim was sentenced to three years imprisonment on each count, to be served concurrently. All but six months of his sentence was suspended and supplanted by a period of probation.

Kim appeals asserting that: (1) the trial court erroneously excluded as inadmissible hearsay an exculpatory telex despite its admissibility under both the business records exception ³ and the residual exception for trustworthy hearsay statements ⁴; (2) the prosecutor made improper prejudicial comments in his closing argument; (3) irrelevant and prejudicial evidence of defendant's tax returns was admitted into evidence; and (4) the trial court wrongly failed to sever the conspiracy and false declaration counts into two trials. We find none of these arguments persuasive, and affirm.

I

The government's evidence indicated that money was delivered to Kim by Sang Keun Kim (hereinafter S. K. Kim) for the purpose of bribing Congressmen. The government acknowledges that defendant Kim never bribed or approached any Congressmen. ⁵ It contends that after taking the money, the defendant converted it to his own use.

S. K. Kim, who was a KCIA agent stationed at the Korean Embassy in Washington, was the government's principal witness. ⁶ He testified that on the orders of General Yang Doo Wan, his superior at the KCIA, he delivered a total of $600,000 to defendant Kim. The money was delivered in two installments: $300,000 on September 12, 1974, and $300,000 on June 6, 1975. ⁷

S. K. Kim was not a completely credible witness. He admitted that he had been a KCIA spy, and that when he first learned of the Justice Department's investigation he forged documents and fabricated a cover story in order to impede the investigation. ⁸ Some of his trial testimony was inconsistent with statements he made to the Federal Bureau of Investigation immediately after he defected. ⁹ He admitted that he stood to gain from his cooperation with the Government. ¹⁰

The Government buttressed S. K. Kim's testimony with certain corroborating evidence. First, it presented evidence of clandestine meetings between S. K. Kim and the defendant. ¹¹ Second, a government handwriting expert testified that a receipt for the 1974 installment of $300,000, which was in S. K. Kim's possession, was written by the defendant. ¹² Third, the government introduced evidence that over one-hundred telex messages were sent from a telex machine in the defendant's house to General Yang's telex number in Seoul. ¹³ This corroborated S. K. Kim's claim that he sent reports about the defendant's activities to General Yang at KCIA headquarters in Seoul from the defendant's telex machine. ¹⁴

Finally, the government introduced evidence that beginning in 1972 the defendant had serious financial problems. He began to borrow heavily on his life insurance, on his property, and from finance companies. He was tardy in paying his bills, building up large balances with a number of retail stores. The checks drawn to pay for his children's private school tuition bounced. In July of 1974 he tried to borrow from a finance company that had earlier extended him a loan, but he was turned down because of his slow payment on his previous loan and because he had no sources of income in the United States.

The defendant's financial troubles apparently ended abruptly, on September 13, 1974, the day after S. K. Kim allegedly delivered the first installment of $300,000 in $100 bills. Within weeks, defendant Kim paid all of his bills, many of them with $100 bills, and in the next fifteen months spent close to $200,000 on personal expenditures. ¹⁵ The defendant's sudden access to large amounts of money, after a prolonged period of financial difficulty, strongly corroborates S. K. Kim's testimony that he delivered $300,000 to the defendant.

The defendant did not testify at trial. His counsel argued that "Hancho Kim was the innocent scapegoat of a private scheme of S. K. Kim and co-conspirator Yang Doo Wan to enrich themselves by siphoning KCIA funds. The defense also sought to show that Hancho Kim had abundant sources of money in Korea to account for his expenditures." ¹⁶ The jury was not persuaded by this defense. Hancho Kim was convicted.

II

To bolster its assertion that Hancho Kim had "abundant sources of money," the defense sought to introduce a telex from the Korean Exchange Bank in Seoul, Korea. The telex was sent instead of the defendant's bank records which were sought by a government subpoena. It stated that on January 13, 1977 the defendant personally withdrew $400,000 which had been deposited in U.S. dollars to his account on three separate days in 1975. ¹⁷ Defense counsel contends that the telex proves "that Hancho Kim must have had other substantial sources of funds. Those funds were as likely a source for his expenditures in the United States as for the deposits in Korea." ¹⁸ But counsel's argument is flawed by its complete failure to explain the source of his funds in 1974 or the $200,000 of expenditures beginning at that time, and by the incompetence of the evidence upon which it relies. ¹⁹ The trial court refused to admit the telex into evidence, holding it to be inadmissible hearsay.

The defendant maintains that the court erred when it excluded the telex because it falls within two exceptions to the hearsay rule: (1) the business records exception, and (2) the residual exception for trustworthy hearsay. We disagree.

A

The telex was offered to prove that during 1975 Hancho Kim deposited $400,000 in the Korean Exchange bank in three installments. It contains two hearsay links. ²⁰ The bank's record of deposits made by the defendant is the first hearsay link. ²¹ The second hearsay link is the telex itself, which contains another bank employee's statement as to what the bank's records show. In each case, the out-of-court statement of the declarant was offered to prove the "truth of the matter asserted" that the defendant deposited the money (link 1) and that those deposits are reflected in bank records (link 2).

Since the telex contains hearsay, it was properly excluded unless it falls within one of the exceptions to the hearsay rule. Fed.R.Evid 802. We turn, therefore, to the defendant's argument that the telex should have been admitted under the exceptions to the hearsay rule.

B

The defendant maintains that the telex is admissible under the business records exception to the hearsay rule. Essentially, that exception provides that records made and kept in the ordinary course of business may be introduced into evidence despite their hearsay nature. The business records exception is codified in Federal Rule of Evidence 803(6). ²²

Defendant's business records argument is rather complex. It is easiest to analyze when it is divided into two sub-arguments. The first sub-argument is straight-forward: the telex is a business record admissible under Rule 803(6). The second sub-argument is somewhat of a fall-back position, though defendant does not label it as such. It is that the telex is a summary of bank records, and since the bank records fall within the exception, the summary should be admitted as well. ²³

1. Business records. The telex fails to meet the business records exception for three reasons. First, Rule 803(6) states that a business record will only be admissible if it is made "at or near the time" of the events that it reports. ²⁴ The telex does not meet this requirement. It reports deposits that took place in 1975. Yet it was not prepared until April of 1977, over two years after the first deposit was allegedly made. ²⁵

The defendant acknowledges this shortcoming. He argues, however, that the timeliness requirement should be waived in this case. The gist of his argument is that the timeliness requirement is designed to ensure that the declarant's memory is accurate. Here, the argument goes, there is no doubt about memory because the telex merely summarizes bank records that were made contemporaneously with the deposits. ²⁶

Assuming, Arguendo, that there is no question about the accuracy of the declarant's memory in this case, we still reject defendant's argument. He cites no authority for waiving the timeliness requirement. And we believe that such a waiver would be inconsistent with the framework of the Federal Rules of Evidence. Rule 803 delineates twenty-three specific exceptions to the hearsay rule. Rule 803(24), the residual clause provides for admission of trustworthy hearsay "not specifically covered by any of the foregoing exceptions . . . ." Under the rules, therefore, evidence that is not covered by one of the specific exceptions can only be admitted under the residual clause. There is no place in the scheme of the Rules of Evidence for selective waiver of the requirements of particular exceptions. If the requirements of an exception are not met, then the evidence must be excluded...