U.S. v. Ellis, s. 90-5726

• Decision Date: 03 October 1991
• Docket Number: 91-5771,Nos. 90-5726,s. 90-5726
• Citation: 951 F.2d 580
• Parties: 34 Fed. R. Evid. Serv. 655 UNITED STATES of America, Plaintiff-Appellee, v. William T. ELLIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. William T. ELLIS, Defendant-Appellee. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 580

951 F.2d 580

34 Fed. R. Evid. Serv. 655

UNITED STATES of America, Plaintiff-Appellee, v. William T. ELLIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. William T. ELLIS, Defendant-Appellee.

Nos. 90-5726, 91-5771.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 3, 1991.

Decided: Dec. 12, 1991.

As Amended Jan. 7, 1992.

Franklin Dorrah Cleckley, Morgantown, W.Va., argued (Phillip D. Gaujot, Charleston, W.Va., on the brief), for defendant-appellant.

Joseph F. Savage, Jr., Asst. U.S. Atty., Huntington, W.Va., argued (Michael W. Carey, U.S. Atty., Huntington, W.Va., on the brief), for plaintiff-appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, and PHILLIPS and NIEMEYER, Circuit Judges.

OPINION

POWELL, Associate Justice:

The principal questions presented in this appeal are whether the district court erred in admitting hearsay statements of a deceased witness, in allowing discovery of the Appellant's personal notes, and in calculating the Appellant's sentence. For reasons that follow, we affirm the Appellant's conviction and his sentence.

I

Appellant William Ellis was a 20% limited partner of Tri-State Greyhound Park, Inc. (Tri-State), a West Virginia corporation that operates pari-mutuel betting on greyhound races. Under West Virginia law, facilities like Tri-State are allowed to keep a specific percentage--the "takeout"--of the revenue generated by public wagers. In 1986 the owners of Tri-State, faced with unanticipated shortfalls in revenue, supported a proposed bill that would have increased their "takeout" percentage. The 1986 "takeout" bill received the support of both houses of West Virginia's bicameral legislature, but was subsequently vetoed by the Governor.

In 1987, a similar bill was introduced and renewed efforts were made to obtain support for it. To this end, Tri-State promised to pay Ellis $500,000 if the bill became law. Ellis proceeded in a variety of allegedly fraudulent ways to assure passage of the bill. He worked primarily through Samuel D'Annunzio, a seasoned West Virginia lobbyist, providing him with sums of cash, among other things, with which to influence various state legislators.

The West Virginia legislature eventually passed, and the Governor signed, the 1987 bill. Soon afterwards, a federal investigation into charges of corruption surrounding passage of the 1987 bill was initiated. As a consequence of that investigation, D'Annunzio entered into a plea agreement with the federal government. D'Annunzio met several times with federal agents, elaborating the methods used to further the scheme and detailing the nature of his relationship with Ellis. D'Annunzio also secretly recorded conversations with Ellis and other participants in the scheme. On December 4, 1988, in the midst of the investigation, D'Annunzio committed suicide.

On the basis of information provided by D'Annunzio and others, Ellis was indicted. The superseding indictment charged eight counts of Hobbs Act, mail fraud, racketeering, and obstruction of justice violations. A jury convicted Ellis on all of the counts except two--the mail fraud charge and a substantive extortion charge. The district court sentenced Ellis to 107 months and fined him $50,000.

II

A

Ellis first argues that the district court violated his rights under the Confrontation Clause by admitting hearsay statements of deceased witness Samuel D'Annunzio that did not bear sufficient "indicia of reliability." Ordinarily we review the admission of hearsay statements for abuse of discretion. United States v. Hinkson, 632 F.2d 382, 385 (4th Cir.1980). In this case, however, de novo review is appropriate. For shortly after the jury returned its verdict, the Supreme Court issued a decision that bears on this question. In Idaho v. Wright, --- U.S. ----, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), the Court held that, for purposes of the Confrontation Clause, the presence of corroborating evidence may not be considered in determining the reliability of hearsay testimony. Because the district court relied on corroborating evidence in admitting D'Annunzio's statements, we must determine whether the statements otherwise were properly admissible.

A two-part test determines whether "incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause." Id. 110 S.Ct. at 3146 (citing Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980)). The prosecution first must show that the declarant was unavailable. Id. Then it must demonstrate that the statements have the necessary "indicia of reliability." Id. This latter requirement is met, Idaho instructs, in one of two ways: either by showing that the statements "fall[ ] within a firmly rooted hearsay exception" or by showing that the statements bear sufficient guarantees of trustworthiness. Id.

Applying this standard, we think that D'Annunzio's statements were properly admitted. The circumstances in which D'Annunzio made the statements provided strong "indicia of reliability." ¹ First, D'Annunzio issued the statements voluntarily in the presence of two government agents and both of his attorneys. Second, D'Annunzio made the statements in accordance with a plea agreement which required him to be truthful with federal investigators. Third, the government agents were taking notes in the presence of D'Annunzio as the statements were made. Fourth, D'Annunzio could be deemed to know, in view of the plea agreement, that what he was saying would be the subject of further investigation--and confirmation--by the government. Fifth, though the plea agreement did not require him to do so, D'Annunzio agreed to record subsequent conversations with the individuals he had implicated (Senators Tucker and Ellis), suggesting that he was willing to have the truthfulness of these statements tested.

This Court's decision in United States v. Workman, 860 F.2d 140 (4th Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1529, 103 L.Ed.2d 834 (1989), is persuasive--though perhaps not controlling--authority that D'Annunzio's statements should have been admitted. Workman also involved the statements of a deceased witness that were obtained in the course of a plea agreement. And this Court approved the admission of those statements under quite similar circumstances. The only relevant difference between the indicia of reliability in Workman and in this case is that Workman contained one additional measure of reliability--a tape recording of the declarant's statements. See Workman, 860 F.2d at 142-46.

This distinction, however, does not compel a different outcome in this case. Other factors--particularly the presence of D'Annunzio's two attorneys--strongly suggest that the statements were trustworthy. Moreover, the principal danger of the absence of a tape recording--the accuracy of the hearsay statements--was not challenged seriously in this case. Charles Little, an agent with the Internal Revenue Service, testified to his recollection of D'Annunzio's statements on the basis of notes he had taken at the meetings with D'Annunzio. Three other witnesses attended those meetings, two of whom (D'Annunzio's attorneys) had interests adverse to those of the government. Ellis chose not to call any of these participants to challenge Agent Little's recollection of D'Annunzio's statements. We therefore assume that the accuracy of the statements was not questioned.

Ellis also contends that the Supreme Court's decision in Idaho overrules an aspect of the Workman analysis upon which the district court relied. He specifically attacks Workman's statement that a declarant's willingness to record conversations with conspirators bears on the truthfulness of the declarant's earlier statements. Language in Idaho, ² Ellis claims, indicates that this factor no longer is relevant to the reliability inquiry because this particular circumstance did not exist at the time D'Annunzio made the statements. We do not think, however, that Idaho placed a time bar on the circumstances that may be used to demonstrate the reliability of hearsay statements. Such a reading of the case would extend the decision well beyond the question presented (is corroborating evidence an indicia of reliability?); would conflict with other portions of the opinion, see, e.g., Idaho, 110 S.Ct. at 3148 ("we decline to read into the Confrontation Clause a preconceived and artificial litmus test") and id. at 3150 ("courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining 'particularized guarantees of trustworthiness' under the [Confrontation] Clause."); and would remove from consideration a factor that logically bears on the central issue under the Confrontation Clause--whether the statements are trustworthy. In our view Idaho neither directly nor by implication overruled this aspect of the Workman analysis.

In sum, the statements had sufficient indicia of reliability to meet the requirements of the Confrontation Clause. And given the circumstances in which the statements were made, cross-examination would have had only "marginal" value in this case. Id. at 3149.

B

Ellis further argues that the district court erred in allowing the government to discover two of his appointment books and certain personal notes (collectively, "appointment books"). We disagree. A Defendant who testifies waives his Fifth Amendment privilege in all areas subject to proper cross-examination. Brown v. United States, 356 U.S. 148, 154-56, 78 S.Ct. 622, 626-27, 2 L.Ed.2d 589 (1958). Proper cross-examination--and therefore waiver--reaches all subject matters relevant to the direct examination. See Johnson v. United States, 318 U.S. 189, 195, 63 S.Ct. 549, 552, 87 L.Ed. 704 (1943) ("waiver as to all other relevant facts") (citation omitted); Fed.R.Evid. 611(b...