618 F.2d 624 (10th Cir. 1979), 78-1314, United States v. Balano

Docket Nº:78-1314.
Citation:618 F.2d 624
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Phillip R. BALANO, Defendant-Appellant.
Case Date:December 18, 1979
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 624

618 F.2d 624 (10th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,


Phillip R. BALANO, Defendant-Appellant.

No. 78-1314.

United States Court of Appeals, Tenth Circuit

December 18, 1979

Argued May 16, 1979.

Rehearing Denied May 20, 1980.

Page 625

John C. Humpage, Topeka, Kan., for defendant-appellant.

Edward D. Holmes, Dept. of Justice, Kansas City, Mo., with James P. Buchele, U. S. Atty., Topeka, Kan., for plaintiff-appellee.

Before HOLLOWAY, McKAY and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

Balano has twice been tried, the first trial resulting in a hung jury. Following his conviction on one count of violating 18 U.S.C. § 3 (1976) as an accessory after the fact to interstate transportation of stolen goods, Balano raises several issues on appeal. His primary contention is that the district court erred in admitting into evidence the grand jury testimony of a convicted participant in the crime, after the witness had refused to testify at trial because of alleged coercion by Balano. Balano also challenges the sufficiency of the evidence to support the conviction, the trial court's refusal to permit the introduction for impeachment purposes of another participant's answer to an interrogatory, the court's refusal to dismiss the indictment at the end of the first trial, and the sufficiency of the indictment. We reject each of Balano's arguments and affirm his conviction.


Balano was originally charged in two of the three counts of an indictment. Count I, which did not name Balano, charged that one Samuel Bernstein aided and abetted Dominick J. Carullo and James E. Johnston in the interstate transportation of stolen coins. The coins were stolen in Kansas, removed to Missouri, and then returned to Kansas. Carullo and Johnston were separately indicted; each pleaded guilty and was sentenced to five years in prison. The fence to whom most of the stolen coins were sold, William Reese, was also separately indicted, and he too pleaded guilty. Following a hung jury in the first trial, Bernstein's case was severed from Balano's. In Count III, Balano and Saul Rosen, his partner in Sol's Loan Office in Kansas City, Kansas, were charged with transporting the stolen goods in interstate commerce. Before submitting the case to the jury, the trial court removed Count III from the indictment because of insufficient evidence.

In Count II, the only count remaining directly in issue on appeal, Balano and Rosen were charged as accessories after the fact for knowingly aiding Carullo and Johnston after the robbery. 1 The trial court

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denied Balano and Rosen's motion for acquittal at the close of the evidence and, after the jury could not reach a verdict, denied a renewed acquittal motion. 2 At this first trial the government relied almost exclusively on the testimony of Johnston, a participant in the robbery, whose testimony linked Balano marginally, but clearly, with the crimes. The other participant, Carullo, refused to testify even after a grant of immunity. He was cited for contempt and sentenced to an additional six months' imprisonment. Before the second trial Carullo indicated that he would again refuse to testify. After an evidentiary hearing, the court permitted the introduction of Carullo's grand jury testimony, which tied Balano more closely to the criminal scheme. Balano was convicted, his acquittal motions were denied, and this appeal resulted.


On both statutory and constitutional grounds, Balano challenges the admission of Carullo's grand jury testimony. Balano first questions the trial court's finding that the necessary requirements were present to justify admission of the hearsay evidence under Fed.R.Evid. 804(b)(5). Even if statutory justification for admission did exist, however, Balano charges that the admission of the grand jury evidence in this case denied him his constitutional right "to be confronted with the witnesses against him." U.S.Const. amend. VI.

The trial court agreed that, absent waiver, the prior grand jury testimony of an unavailable witness should be inadmissible as evidence of a defendant's guilt. However, the court held that Balano had effectively waived his right to confront Carullo by threatening his life. Although we will not lightly accept findings of waiver of the constitutional right of confrontation, we hold that the trial court's careful consideration of the evidence of coercion justified its finding in this case. Because we find a waiver of confrontation rights, we need not consider whether the testimony met the standards for admission under Rule 804(b)(5). A valid waiver of the constitutional right is a fortiori a valid waiver of an objection under the rules of evidence.

  1. 3

We must reach the waiver question because we find that, absent waiver, Balano's Confrontation Clause rights were violated. In its Memorandum and Order, the trial court correctly stated that, at the time, "(e)ven with . . . indicia of reliability, it appears no Court has been willing, without more, to sanction use of an unavailable witness' grand jury testimony as substantive evidence at trial to reflect upon a defendant's guilt." Record, vol. 1, at 108. See United States v. Carlson, 547 F.2d 1346, 1357 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977); United States v. Fiore, 443 F.2d 112, 115 (2d Cir. 1971). Because of United States v. West, 574 F.2d 1131 (4th Cir. 1978), the

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district court's statement is no longer correct. In West, the Fourth Circuit permitted introduction of grand jury testimony (after the death of the witness) because of strong guarantees of the testimony's reliability. See also United States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978). We believe, however, that West improperly reduces the Confrontation Clause to a mere consideration of evidentiary value.

The West court recognized that the Confrontation Clause and the historical hearsay rules are not congruent. The Supreme Court has "more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception." California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970), citing Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). See also United States v. Roberts, 583 F.2d 1173, 1176 (10th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 49 (1979). Although "the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same roots . . . (the Supreme) Court has never equated the two." Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970). Despite its recognition of these differences, however, the Fourth Circuit found that "the same circumstances suffice to meet the requirements of (Rule) 804(b)(5) and of the Confrontation Clause." 574 F.2d at 1138. We disagree. 4

The Confrontation Clause is not concerned only with the inherent veracity of hearsay statements. "(W)e should not be lured by the possible reliability of out-of-court statements, important as that is in the consideration of the problem as a rule of evidence, away from the ultimate constitutional prescription (of the Confrontation Clause), which is the regulation of trial procedure." United States v. West, 574 F.2d at 1139 (Widener, J., dissenting). The Clause was aimed at "the particular vice . . . of trying defendants on 'evidence' which consisted solely of ex parte affidavits or depositions secured by the examining magistrates." California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970). The Clause is directed not primarily at content but at "compelling (the witness) to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). Under these standards, Carullo's grand jury testimony fails to satisfy the requirements of the Confrontation Clause. It is the equivalent of an ex parte deposition, it was not redeemed by a court appearance of Carullo, and it was secured through a procedure that has become the arm of the "examining magistrate." 5

We do not mean to elevate cross-examination, under all circumstances, to the level of a constitutional requirement. Read narrowly, the Confrontation Clause would altogether preclude the use of hearsay evidence in criminal trials unless the hearsay declarant was available for cross-examination. No major American court has gone so far, see Dutton v. Evans, 400 U.S. at 82, 91 S.Ct. 210, and we certainly do not. We can also

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agree with the Fourth Circuit that "(t)he Supreme Court has never intimated . . . that cross-examination is the only means by which prior recorded testimony may be qualified for admission under the Confrontation Clause." United States v. West, 574 F.2d at 1137. See United States v. Roberts, 583 F.2d 1173, 1176-77 (10th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 49 (1979) (co-conspirator exception to hearsay rule). Nevertheless, the Supreme Court has placed great emphasis on cross-examination whether at the instant trial or at another trial or hearing as a protector of confrontation values. "(The Court's) cases construing the (confrontation) clause hold that a primary interest secured by it...

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