U.S. v. Donlon

• Decision Date: 11 May 1990
• Docket Number: No. 90-1032,90-1032
• Citation: 909 F.2d 650
• Parties: 30 Fed. R. Evid. Serv. 736 UNITED STATES, Appellee, v. Daniel J. DONLON, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 650

909 F.2d 650

30 Fed. R. Evid. Serv. 736

UNITED STATES, Appellee, v. Daniel J. DONLON, Defendant, Appellant.

No. 90-1032.

United States Court of Appeals First Circuit.

Heard May 11, 1990.

Decided July 27, 1990.

John C. McBride, with whom McBride, Wheeler & Widegren, Boston, Mass., was on brief, for appellant.

David A. Vicinanzo, Asst. U.S. Atty., with whom Jeffrey R. Howard, U.S. Atty., Concord, N.H., was on brief, for appellee.

Before BREYER, Chief Judge, ROSENN, ^* Senior Circuit Judge, and CAMPBELL, Circuit Judge.

BREYER, Chief Judge.

Daniel Donlon, a previously convicted felon, appeals his conviction for having unlawfully possessed a firearm. See 18 U.S.C. Sec. 922(g)(1). A basic factual question at trial was whether or not a pistol that police found under a laundry basket belonged to him. His former girlfriend, Sherry Cardoza, who is now his wife, gave incriminating grand jury testimony. Later, at trial, she invoked the "spousal" privilege against testifying. The district court then admitted her earlier grand jury testimony into evidence. Donlon says that the court could not legally admit that grand jury testimony. We have considered this claim, and the other legal arguments that Donlon makes. We conclude that we must affirm his conviction.

I. Background

Reading the record in a manner appropriately favorable to the government, see, e.g., United States v. Torres Lopez, 851 F.2d 520, 527-28 (1st Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989); United States v. Wiseman, 814 F.2d 826, 828 (1st Cir.1987), we believe the key facts are the following:

The Hudson, New Hampshire police department received a call at about 1:30 in the morning on October 31, 1987. The caller, who lived next door to 16-A River Road, said he heard several gunshots inside the house at that address. Two police officers then went to the house. As they approached, Donlon appeared behind the screen door; he seemed drunk; he shouted at them to get off his property. The officers explained why they were there, satisfied themselves he was not armed, and said they wanted to check the house to make certain no one was hurt. Donlon said he did not want to let them in, but he then opened the door and let the officers inside.

Donlon told the officers he had had an argument with his girlfriend and that he had thrown a beer bottle through a sliding glass door at the rear of the house. He took them to the back, where they saw the door, broken glass, and a bottle. They asked if anyone else was in the house, and Donlon replied that his children were upstairs sleeping.

At that point the officers heard voices upstairs. A man (a friend of Donlon's) and a woman (the babysitter) came downstairs, the woman crying. The woman went back upstairs and returned with two children. Sherry Cardoza, the children's mother, phoned. She told one of the officers that she wanted the babysitter and her children taken away from the house and that she would ask her sister-in-law to pick them up. Donlon and his friend also said they wanted to leave. Donlon asked for a ride to a motel. The officers said they would call another police car to take them.

Donlon, accompanied by a police officer, went to the bedroom upstairs to get some money and clothes. The officer saw an assault rifle hanging behind the bedroom door. Soon thereafter, the babysitter, while getting ready to leave, picked up a laundry basket in the living room, where the officers were then standing, and the officers saw a nine-millimeter pistol beneath the basket. One of them took the gun to the car. Donlon asked when he could get it back. The officer replied that he could have it the next evening if Donlon was sober. Donlon added that he had other guns in the house.

Subsequently, the government discovered that Donlon was a previously convicted felon. It began a grand jury investigation. Sherry Cardoza testified before the grand jury that, on October 31, she and Donlon were living together at 16-A River Road and that Donlon, at that time, had "more than five" guns in the house. The grand jury indicted Donlon on charges of unlawfully possessing eleven guns. The trial court suppressed ten of the eleven guns, as illegally seized. The case proceeded to trial in respect to the eleventh gun, the nine-millimeter pistol found under the laundry basket. At the trial Donlon claimed that the pistol belonged to a friend, Brian Kelly, who had briefly left the gun in the house. Sherry Cardoza invoked spousal immunity and refused to testify. The court permitted the government to read her grand jury testimony to the jury. The jury convicted Donlon of unlawfully possessing the pistol.

After his conviction, Donlon failed to appear for sentencing. The court ordered forfeiture of bail (real estate belonging to Donlon's brother). U.S. Marshals captured Donlon three months later. The court sentenced him, and he now appeals.

II. The Admission of Grand Jury Testimony

Donlon's major argument is that the district court could not lawfully admit Sherry Cardoza's grand jury testimony into evidence. Though the testimony is hearsay, the court admitted it under the authority of Fed.R.Evid. 804(b)(5). Rule 804(b) sets forth five categories of testimony that "are not excluded by the hearsay rule if the declarant is unavailable as a witness." The categories are "(1) Former testimony .... (2) Statement under belief of impending death .... (3) Statement against interest .... (4) Statement of personal or family history .... (5) Other exceptions ...." Fed.R.Evid. 804(b). The Rule defines this last category, the "Other exceptions" or "residual" category, as including a

statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence....

Fed.R.Evid. 804(b)(5). Donlon concedes that Sherry Cardoza was "not available as a witness" and that her grand jury testimony satisfies subconditions (A) and (B); he does not argue that admission of that testimony violated subcondition (C). But, he makes two other arguments against admissibility.

First, Donlon makes an argument that we cast in the following syllogistic form:

Premise one. Exception (1), the exception for "former testimony," applies to grand jury testimony.

Premise two. Since exception (1) applies, exception (5) cannot apply.

Premise three. Exception (1) applies to

"Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition ..."

but only if

"the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination."

Fed.R.Evid. 804(b)(1).

Premise four. Sherry Cardoza's grand jury testimony does not satisfy the "opportunity for cross-examination" condition.

Conclusion. Sherry Cardoza's grand jury testimony is not admissible.

Since no party other than the government can examine a witness before a grand jury, this argument, if accepted, would make grand jury testimony inadmissible, no matter how great the need or how strong the guarantees of trustworthiness. It does not surprise us, therefore, that every circuit court that has considered this kind of argument has rejected it and held that the "residual exception," exception (5), is potentially applicable to grand jury testimony. See United States v. Fernandez, 892 F.2d 976, 981 (11th Cir.1989), cert. dismissed sub nom. Recarey v. United States, --- U.S. ----, 110 S.Ct. 2201, 109 L.Ed.2d 527 (1990); United States v. Curro, 847 F.2d 325, 327-28 (6th Cir.), cert denied, 488 U.S. 843, 109 S.Ct. 116, 102 L.Ed.2d 90 (1988); United States v. Guinan, 836 F.2d 350, 353-54 (7th Cir.), cert. denied, 487 U.S. 1218, 108 S.Ct. 2871, 101 L.Ed.2d 907 (1988); United States v. Marchini, 797 F.2d 759, 763 (9th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1288, 94 L.Ed.2d 145 (1987); United States v. Murphy, 696 F.2d 282, 286 (4th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983); United States v. Barlow, 693 F.2d 954, 960 (6th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983); United States v. Boulahanis, 677 F.2d 586, 588 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982); United States v. West, 574 F.2d 1131, 1135-36 (4th Cir.1978); United States v. Carlson, 547 F.2d 1346, 1353-55 (8th Cir.1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977); see also United States v. Zannino, 895 F.2d 1, 6 (1st Cir.) (indicating approval of the practice of admitting uncross-examined grand jury testimony into evidence at a subsequent trial "where the declarant is no longer available and the requisite indicia of reliability exist"), cert. denied, --- U.S. ----, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).

The argument's weak points lie in premises one and two. Premise One says that the "former testimony" exception (exception one, Fed.R.Evid. 804(b)(1)) was meant to encompass grand jury proceedings. We do not believe that is so. We concede that its words "testimony ... at a different proceeding," read literally, would include grand jury proceedings. But, the Rules Advisory Committee, explaining exception one in its Notes, says, "Former testimony does not rely upon some set of circumstances to substitute for oath and cross-examination, since both oath and opportunity to cross-examine were present in fact." Fed.R.Evid. 804(b)(1), advisory committee's note. It thereby makes clear that exception one was written in respect to those kinds of proceedings...