U.S. v. Deeb
| Decision Date | 15 February 1994 |
| Docket Number | No. 91-5253,91-5253 |
| Citation | 13 F.3d 1532 |
| Parties | 38 Fed. R. Evid. Serv. 1087 UNITED STATES of America, Plaintiff-Appellee, v. Jean Joseph DEEB, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Neal R. Lewis, Miami, FL, Terence J. Anderson, The University of Miami School of Law, Coral Gables, FL, for defendant-appellant.
Laurence M. Barfeld, Linda Collins Hertz, Carol Herman, Miami, FL, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before CARNES, Circuit Judge, FAY * and JOHNSON, Senior Circuit Judges.
Jean Joseph Deeb was convicted of importation and possession of cocaine. At his trial, the evidence against him included testimony that a co-conspirator had given at a prior trial at which Deeb was neither present nor represented. We conclude that the testimony from the prior trial was admissible under the residual hearsay exception and that its admission did not violate the Confrontation Clause. Accordingly, we affirm Deeb's conviction.
In August 1988, agents of the United States Customs Service inspected a coastal freighter that had recently arrived from Haiti at a Miami shipyard. They discovered a substantial quantity of cocaine in the freighter's forward ballast tanks. Assisted by agents of the United States Drug Enforcement Agency (DEA), Customs agents kept the freighter under continuous surveillance. They observed the freighter's crew transferring boxes from the freighter to a van. Agents followed the van to a duplex in northwest Miami where they saw two individuals unload some of the boxes and carry them into the duplex. The van, with the remaining boxes, was left parked outside.
The agents watched the duplex, the van, and any individual who had contact with either. Later, as several individuals attempted to leave with the van, the agents arrested seven individuals who had had significant contact with the van and the boxes. Deeb and Serge Biamby were among those arrested. The agents found a total of approximately 491 kilograms of cocaine in the boxes.
On August 31, 1988, a grand jury issued an indictment against all seven of those arrested. Deeb and Biamby were charged with knowingly and intentionally importing and conspiring to import cocaine, in violation of 21 U.S.C. Secs. 952(a), 960(a)(1) and (b), 963, and 18 U.S.C. Sec. 2, and with knowingly and intentionally possessing with intent to distribute and conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C Secs. 841(a)(1), 846, and 18 U.S.C. Sec. 2. The other five individuals were charged with related crimes arising from the same facts. Biamby and two other defendants agreed to cooperate with the Government. Biamby pled guilty to one count of importing cocaine, in exchange for which the prosecutor agreed to dismiss the remaining charges against him and agreed that his cooperation could be used as a basis for a downward departure at sentencing. Biamby was later sentenced to five years imprisonment and five years of supervised release.
Deeb and the remaining defendants were scheduled to stand trial in July 1989, but Deeb failed to appear. The Government moved to try him in absentia. The district court denied the motion, severed the charges against Deeb, and proceeded with the trial against the remaining defendants. Biamby testified at that trial. Neither Deeb nor his counsel was present for any part of that trial.
In February 1990, authorities apprehended Deeb in the Dominican Republic and brought him to Miami for trial. Two months later the Government disclosed that Biamby was terminally ill with AIDS and was suffering progressive memory deterioration. The Government moved for permission to depose Biamby on videotape for the purpose of introducing the tape at Deeb's trial. Over Deeb's objection, the district court authorized the deposition, which was held on May 24, 1990. At the deposition, the Government questioned Biamby about Deeb's involvement in the crime, and Deeb, through counsel, cross-examined Biamby. On July 3, 1990, the Government filed a memorandum indicating that it would move at Deeb's trial to admit Biamby's testimony from the trial of the codefendants in July 1989.
Deeb was tried in December 1990. As part of its case against Deeb, the Government showed Biamby's videotaped deposition to the jury. Deeb did not object to the introduction of the videotaped deposition and, in this appeal, does not contend that its admission was erroneous. During the presentation of its case against Deeb, the Government moved to introduce Biamby's direct-examination testimony from the July 1989 trial of the codefendants, and over Deeb's objection, the district court admitted that testimony. Because neither the Government nor Deeb moved to introduce Biamby's cross-examination testimony from the former trial, that testimony was not admitted.
After the close of the evidence, the jury found Deeb guilty. The district court sentenced him to 270 months imprisonment and ten years of supervised release.
This Court reviews a district court's admission of former testimony for abuse of discretion. United States v. Lang, 904 F.2d 618, 624 (11th Cir.), cert. denied, 498 U.S. 924, 111 S.Ct. 305, 112 L.Ed.2d 258 (1990).
The district court relied on Fed.R.Evid. 801(d)(1)(B), 804(b)(1), and 804(b)(5) as authority for allowing the Government to introduce Biamby's former testimony. Deeb argues that Biamby's testimony was not admissible under any of these rules and that its admission violated his rights under the Sixth Amendment's Confrontation Clause. We will address Deeb's evidentiary and constitutional challenges in turn.
The district court apparently accepted the Government's argument that Biamby's former testimony was admissible at Deeb's trial under Rule 801(d)(1)(B) as a prior statement by Biamby that was consistent with his deposition testimony and that was offered to rebut Deeb's express charge of "recent fabrication or improper influence or motive." Rule 801(d)(1)(B) provides:
(d) Statements which are not hearsay. A statement is not hearsay if--
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....
Even assuming that the admission of Biamby's deposition testimony satisfied the requirement that Biamby "testif[y] at the trial," and that his former testimony was offered to rebut a charge of "recent fabrication or improper influence or motive," we conclude that it still was not admissible under Rule 801(d)(1)(B). That rule requires that Biamby have been "subject to cross-examination concerning the statement," and "the statement" in this case was the former trial testimony. The rule envisions a situation where the hearsay declarant is available at trial (or as here, at deposition) to be cross-examined about his prior consistent statement when it is introduced. Such a situation never arose in this case. Neither the Government nor Deeb questioned Biamby at the deposition about his former testimony, probably because at the time, the Government had not expressed any intention of offering Biamby's former testimony at Deeb's trial. The Government stated at oral argument that it did not decide to offer Biamby's former testimony until after it had taken his deposition, and nothing in the record indicates otherwise. The Government did not notify Deeb of its intention until five weeks after the deposition had been completed, too late for Deeb to cross-examine Biamby about the former trial testimony. Because Biamby was not subject to cross-examination about his former testimony and because the declarant being "subject to cross-examination concerning the statement" is a predicate for admission under Rule 801(d)(1)(B), that rule cannot justify admission of Biamby's former testimony.
The district court also relied on Rule 804(b)(1) as authority for admitting Biamby's former testimony at Deeb's trial. That rule provides:
(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Rule 804(b)(1) clearly requires that Deeb have had an opportunity to cross-examine Biamby at the codefendants' trial. Deeb had no such opportunity.
The district court concluded that the cross-examination of Biamby by Deeb's codefendants satisfied the requirement that Deeb have had an opportunity to cross-examine Biamby. That conclusion is contrary to the plain words of the rule that condition admissibility upon "the party against whom the testimony is now offered" having had an opportunity to develop the testimony through cross-examination or otherwise. At least as to criminal cases, Rule 804(b)(1) neither states nor implies that it is sufficient that another party with similar interests cross-examined the witness at the prior trial. The Government has not cited any decision of any court so construing the rule, and absent controlling authority, we will not place upon the rule a construction contrary to its plain wording. See, e.g., North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983); Consumer Product Safety Comm'n v. GTE Sylvania,...
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