U.S. v. Bailey

• Decision Date: 16 February 1978
• Docket Number: No. 77-2188,77-2188
• Citation: U.S. v. Bailey, 581 F.2d 341 (3rd Cir. 1978)
• Parties: 3 Fed. R. Evid. Serv. 371 UNITED STATES of America, Appellee, v. Milton Edward BAILEY, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 341

581 F.2d 341

3 Fed. R. Evid. Serv. 371

UNITED STATES of America, Appellee, v.Milton Edward BAILEY, Appellant.

No. 77-2188.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6) Feb. 16, 1978.

Decided July 11, 1978.

Blair A. Griffith, U. S. Atty., John P. Garhart, Edward J. Schwabenland, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.

Michael A. Della Vecchia, Evashavik, Capone, Evans & Della Vecchia, Pittsburgh, Pa., for appellant.

Before GIBBONS and HUNTER, Circuit Judges, and STAPLETON, ^* district judge.

OPINION

JAMES HUNTER, III, Circuit Judge:

In this caseappellantMilton Bailey challenges his conviction for armed bank robbery.Although Bailey has raised several grounds on appeal, we find merit only in his contention that the introduction of certain evidence was error.¹We reverse and remand for a new trial.

I.

On February 6, 1975, two men robbed a branch office of the Colony Federal Savings and Loan Association in Aliquippa, Pa. Five persons in the bank at the time of the robbery were ordered to lie down on the floor as the robbers rifled the tellers' cash drawers.The robbers fled the Bank and made their escape by car.

Before the two had entered the bank, a young boy noticed them and became suspicious.The boy made mental notes of the car's description and out-of-state license plate number.Hiding behind nearby church-steps, the boy waited until after he saw the two leave the bank quickly and run toward the car.He ducked out of sight until the car left, and when policemen arrived, the boy came forward with his information.

Inspecting the area where the boy said the car had been waiting, a police officer found a number of twenty dollar bills strewn along the curb.The car described by the boy was registered to Mrs. Regina Dorsey.When questioned by the FBI, Mrs. Dorsey stated that on the day in question her daughter's boyfriend, Milton Bailey, had been left in possession of the car.During the investigation, several witnesses to the robbery were shown photographic displays.Two picked Bailey out of one of the displays as appearing to have been one of the robbers.At Bailey's trial, however, no witness was able to identify Bailey positively as one of the robbers.

Palm prints removed from a teller's counter at the bank were identified as having been made by Johnny Bernard Stewart.Stewart was arrested, and after plea negotiations agreed to plead guilty.The terms of the agreement required Stewart to furnish a statement regarding the robbery, and to testify at any future proceedings concerning the robbery.In return, the government agreed to move for dismissal of one count of the two-count indictment brought against Stewart.

Prior to his sentencing, Stewart gave two oral statements to the FBI.The latter, made on April 29, 1976, was transcribed by an FBI agent.Stewart signed that statement, acknowledging that it was true.Both statements outlined Stewart's own involvement in the Colony Federal robbery and named Milton Bailey as the second bank robber.Stewart had counsel present at the time he made his agreement with the government and when both statements were made.One count of the indictment was dismissed pursuant to Stewart's agreement with the government, and he was sentenced several months prior to Bailey's trial.

Bailey was indicted on June 9, 1976.During his trial, the government learned that Stewart would refuse to testify concerning his earlier statements.Out of the presence of the jury, Stewart was brought before the trial judge, and the following colloquy occurred.

The Court: No, he doesn't have to be sworn.

Mr. Stewart, stand up here.

I understand from the United States Attorney that if you are called as a witness in the case of the United States v.Mr. Bailey, that you will refuse to testify.Is that correct?

Mr. Stewart: Right.

The Court: On what basis?

Mr. Stewart: Because I don't see where it will help me or hurt me.

The Court: It will hurt you if you don't testify, because I order you to testify.

Mr. Stewart: Well, I refuse.

The Court: Fine.I instruct the United States Attorney to prepare a criminal charge for contempt of this Court because I have ordered the man to testify and he says he won't.

So just prepare a criminal citation for contempt of court.

Now you can see how it is going to hurt you.

Mr. Garhart: Will the Court explain to him what the penalties are?

The Court: Well, yes.

I can sentence you to an additional jail term, and I will, and that will have a serious effect on your possibilities of parole.

You have no right to tell the Court that you won't testify.I can't make you testify, but I can sure put you some place where you will have an opportunity to think it over, and I will.

Mr. Garhart: It is further my understanding that such a term would be consecutive

The Court: It would be consecutive to the term he is now serving.

After Stewart left the courtroom, the government asked the court to rule on the admissibility of Stewart's written statement pursuant to Rules 804(b)(3)and804(b)(5)² of the Federal Rules of Evidence.Defendant's counsel objected, arguing that the rules did not permit admission of the statement and that its admission would violate the Confrontation Clause of the Sixth Amendment.³The court made no ruling on the government's offer at that time but continued the proceedings temporarily so that counsel for both sides could research the questions raised and argue the matter the next morning.

After argument, the court ruled that the evidence was admissible under Rule 804(b)(5), but informed defense counsel that it would allow a three day continuance and any other time necessary.The court also informed counsel that it was willing to provide Stewart to the defense for cross-examination, or to notify the jury that Stewart was unwilling to testify.Bailey's counsel continued his objection to the introduction of the evidence.He declined the opportunity to bring Stewart to the stand for cross-examination after the confession was admitted, contending that if Stewart did answer questions at that time, Bailey's counsel might be placed in the position of proving the government's case against his client.

After the recess allowed by the trial judge, Bailey's lawyer informed the court that Stewart continued to refuse to testify and would not take the stand for defense cross-examination.The trial resumed and an FBI agent who was present when the statement was made by Stewart testified on the manner of taking the statement, as well as to the statement's contents.On cross-examination, Bailey's lawyer not only was allowed to question the agent about the circumstances surrounding the making of the statement, but also was permitted to impeach Stewart, through the agent, by eliciting prior convictions.

The jury found Bailey guilty, notwithstanding his alibi defense that he was working in his father's restaurant on the day of the robbery.Bailey then moved for a new trial, alleging, Inter alia, that the introduction of the Stewart confession violated his right to confront witnesses against him and also did not meet the requirements of Rule 804(b)(5).The trial judge rejected these contentions, and Bailey has appealed to this court.

II.

Bailey challenges the introduction of the Stewart confession on both evidentiary and constitutional grounds.Mindful of our responsibility to avoid, if possible, decisions on constitutional questions, we shall first determine whether Stewart's written confession was properly admitted under the Federal Rules of Evidence.If we were to find that the trial judge properly allowed the jury to consider the confession under the Rules, we nevertheless would have to evaluate the evidence under the Sixth Amendment because, although the hearsay rules and the Confrontation Clause "stem from the same root,"Dutton v. Evans, 400 U.S. 74, 86, 91 L.Ed. 210, 27 L.Ed.2d 213(1970), the two are not to be considered equivalents.Id.

A.

There is no doubt that Stewart's confession was a "written assertion", and thus a "statement" by Stewart, which the government offered at trial to prove the truth of the matters asserted in it.Thus it was hearsay under F.R.Evid. 801(c), and as such was inadmissible unless other rules permitted the statement to be admitted.F.R.Evid. 802.

At trial, the government argued that the confession of Stewart was admissible as a declaration against penal interest, pursuant to Fed.R.Evid. 804(b)(3).The court determined that the requirements of that section had not been met, since the statement had been made by Stewart while he was in custody and after he had been offered a bargain involving dismissal of one count of the indictment against him.The government has not pressed its argument on this point here, and we do not disagree with the trial court.⁴

B.

The trial court grounded the admissibility of the Stewart confession on rule 804(b)(5) of the Federal Rules of Evidence.That rule is one of two "residual" exceptions to the hearsay rule, ⁵ providing for the admission of evidence even when the traditional requirements for the admission of hearsay are not met.

Prior to the adoption of the Federal Rules of Evidence, the out-of-court confession involved in this case could not have been used against Bailey.⁶Thus we must determine the extent to which the addition of the residual rule of 804(b)(5) has broadened the trial court's discretion in admitting evidence.

The trial court is vested with discretion in its determination whether hearsay evidence offered by a party meets the requirements of an exception set forth in the Federal Rules of Evidence.Our role, therefore, is to decide whether the trial court abused its discretion in determining that Stewart's confession met all requirements of Rule 804(b)(5).

To be admissible under Rule 804(b)(5), an out of court statement must meet the following requirements:

The declarant must be unavailable;

The statement must...