U.S. v. Moore

• Decision Date: 23 May 1986
• Docket Number: No. 85-2758,85-2758
• Citation: 791 F.2d 566
• Parties: 20 Fed. R. Evid. Serv. 851 UNITED STATES of America, Plaintiff-Appellee, v. Thomas N. MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 566

791 F.2d 566

20 Fed. R. Evid. Serv. 851

UNITED STATES of America, Plaintiff-Appellee, v. Thomas N. MOORE, Defendant-Appellant.

No. 85-2758.

United States Court of Appeals Seventh Circuit.

Argued April 7, 1986.

Decided May 23, 1986.

James P. Chapman, Chicago, Ill., for defendant-appellant.

Michael J. Shepard, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY, POSNER and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Defendant Thomas Moore, Purchasing Agent for the Metropolitan Sanitary District of Greater Chicago (the "District"), was found guilty of mail fraud for rigging a bid for construction work. The trial court denied defendant's motion for arrest of judgment or in the alternative for a new trial. Defendant appeals, alleging that the district court committed various evidentiary errors and improperly excused a juror. We affirm.

I

The facts, viewed in the light most favorable to the verdict, establish the following sequence of events. The District is generally required to award contracts for construction work by a process of sealed bidding. The bidders submit bid books in sealed envelopes. Each bid book contains a price sheet stating the price at which the bidder is willing to perform the contract. Obviously each bid book should contain only one price sheet. The sealed bids are then opened by the Purchasing Agent for the District at the designated time, read aloud and the contract is awarded to the lowest bidder. The bids are supposed to be read in the order in which they were received.

During the summer and fall of 1979, defendant met several times with Harold Middleton, Vice President of S.A. Healy Company. Healy performed a large amount of construction work for the District. During one of these meetings defendant proposed a scheme under which Middleton could be guaranteed to receive a contract at a favorable price. Middleton would put several bid price sheets in a bid book. Defendant would read Middleton's bid last and would read only the highest bid that was still low enough to win the contract. Defendant would then dispose of the other bid sheets.

Middleton later proposed that defendant permit Gordon Roberts, owner of G. Roberts Material Company, to use the suggested scheme to bid on the Hazel Crest project in November 1979. This project was too small to interest Healy.

The scheme proceeded as planned and Roberts later paid defendant $10,000. Roberts' bid was read last, even though it was received first. Defendant, however, was not very careful in disposing of the extra bid sheets. Shortly after the bidding his secretary, Lois Marren, found the bid sheets in his wastebasket. Marren summoned her colleague Irene Marszalek into the defendant's office, showed her some torn sheets and said, "I've found the evidence I've been waiting for for a long time." Marren eventually took the sheets to defendant's boss, Hugh McMillan. Unfortunately Marren died before trial.

In March 1980 defendant was told that the bid sheets had been found. He resigned the same day. Defendant later met with Middleton and explained that the extra sheets had been found in his wastebasket. When Middleton told defendant that Middleton and Roberts would not tell what they knew, defendant commented that his resignation had been hasty. As sometimes occurs in such circumstances, Middleton and Roberts testified against defendant at trial in exchange for immunity.

On appeal defendant challenges the admission of Marren's statements to Marszalek into evidence as excited utterances. Defendant also challenges the admission of a bid tabulation sheet, prepared by an employee of the District who died before trial, as a business record to show the order in which the bids were actually read. In addition, the defendant argues that the government's cross-examination of him was improper in several respects. Finally, defendant challenges the excusal of a juror who overheard the judge discussing the case with his law clerk.

II

The trial court has broad discretion to assess the admissibility of proffered evidence, and we may reverse its rulings on appeal only when the trial court abused its discretion. See United States v. Davis, 772 F.2d 1339, 1343 (7th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985); United States v. Harris, 761 F.2d 394, 398 (7th Cir.1985); United States v. Latham, 754 F.2d 747, 751 (7th Cir.1985).

The district court admitted testimony of Marren's statements as an excited utterance under Federal Rule of Evidence 803(2). Rule 803 allows hearsay testimony of "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Fed.R.Evid. 803(2). This exception may be applied only if each of three conditions is met: 1) a startling event or condition occurred; 2) the statement was made while the declarant was under the stress of excitement caused by the event or condition; and 3) the statement relates to the startling event or condition. See David v. Pueblo Supermarket, 740 F.2d 230, 235 (3d Cir.1984) (requiring "(1) a startling occasion, (2) a statement made before time to fabricate, and (3) the statement relates to the circumstances of the occurrence"); 4 Weinstein's Evidence p 803(2) (1985). Defendant argues that none of these conditions have been met. We shall address each of these conditions in turn.

The appearance, behavior and condition of the declarant may establish that a startling event occurred. ¹ See, e.g. Wetherbee v. Safety Casualty Co., 219 F.2d 274 (5th Cir.1955); Wheeler v. United States, 211 F.2d 19 (D.C.Cir.1953), cert. denied, 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140 (1954); Notes of Advisory Committee on Proposed Rules (hereinafter "Committee Notes"); Louisell, 4 Federal Evidence 510-11 (1980); 4 Weinstein's Evidence p 803(2) at 803-87 & n. 10 (1985). Further, the declaration itself may establish that a startling event occurred. See Committee Notes; McCormick on Evidence 705 & n. 24 (2d ed. 1972); 4 Weinstein's Evidence p 803(2) at 803-87 to 88 (1985).

In the case before us Marszalek offered testimony that Marren's appearance and behavior indicated that a startling event had occurred. Marszalek testified that Marren was not normally an excitable person and she had never before seen her so excited. Tr. at 246. She repeatedly stated that Marren was very excited, "just like jumping up and down." Tr. at 246; see also Tr. at 248, 249. Marren was flushed. Tr. at 249. She was talking "[a]s if she had won a million dollars in a lottery." Tr. at 249. Of course, Marren's statement itself may indicate that a startling event occurred. Marren told Marszalek that she finally found the evidence she had been looking for for a long time. Tr. at 245-46, 263. When one searches for something for a long time, perhaps not knowing if it will ever be found, one may reasonably expect to be excited when one finally finds it. ² This is like panning for gold. Discovery may to one degree or another be expected; but it is always exciting.

Seeming to deny this, defendant argues that a startling event could not have occurred because Marren expected to find incriminating evidence in Moore's wastebasket and that is the reason she looked there. Defendant contends that this case is similar to United States v. Knife, 592 F.2d 472 (8th Cir.1979), in which the court stated in dicta that a defendant's statement made after a preplanned assault would be inadmissible as an excited utterance because "it would be difficult to believe that the preplanned shooting of Patrolman Huddleston was an event so startling or unexpected as to suspend the defendant declarant's powers of reflection." Knife, 592 F.2d at 481 n. 10. ³ Knife, however, is distinguishable. The statement in Knife assumes that the timing, location and circumstances of the event, a preplanned shooting of a policeman, were within the declarant's control. Here, Marren did not know when or where she would find the evidence she was looking for, or if she would ever find it. She obviously looked in the wastebasket on the particular day in question not because she was certain she would find the evidence, but because she thought she might find some evidence.

Further, the district court did not abuse its discretion in finding that the second requirement of the excited utterance exception, that the statement was made while the declarant was under the stress of excitement caused by the event, was met. Here the court must be able to determine that the declarant's state at the time the declaration was made excluded the possibility of conscious reflection. See 4 Weinstein's Evidence p 803(2) at 803-91 & n. 25 (citing cases). The lapse of time between the startling event and the statement is relevant but not dispositive. ⁴ See Gross v. Greer, 773 F.2d 116, 119-20 (7th Cir.1985). Testimony that the declarant appeared excited when the statement was made and that there was a reasonable basis for this continuing excitement may be sufficient. See McCormick on Evidence 706 & n. 33 (2d ed. 1972). Although there is no direct evidence of the length of time between Marren's discovery of the papers and her statement to Marszalek, Marszalek's testimony indicates that it is unlikely that a significant amount of time elapsed. She testified that Marren made her statement "[r]ight after bid opening, around noontime." Tr. at 245 (emphasis supplied). She also testified that the bids were not read until after eleven, and that it took at least twenty to thirty minutes to read them. Tr. at 267, 274. The defendant himself testified that bid openings usually took thirty to forty-five minutes. Tr. at 481. After that, Moore would have had to return to his office and dispose of the bid sheets. Marren would have had to wait until he left his office before she could search it. Thus the district court did not abuse its discretion in finding that the statement was made under...