U.S. v. Enright

• Citation: 579 F.2d 980
• Decision Date: 08 August 1978
• Docket Number: No. 77-5239,77-5239
• Parties: 3 Fed. R. Evid. Serv. 284 UNITED STATES of America, Plaintiff-Appellee, v. Richard D. ENRIGHT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 980

579 F.2d 980

3 Fed. R. Evid. Serv. 284

UNITED STATES of America, Plaintiff-Appellee, v. Richard D. ENRIGHT, Defendant-Appellant.

No. 77-5239.

United States Court of Appeals Sixth Circuit.

Argued Feb. 8, 1978.

Decided June 20, 1978.

Rehearing Denied Aug. 8, 1978.

Miles A. Hurwitz, Hurwitz & Karp, Dearborn, Mich., for defendant-appellant.

James K. Robinson, U. S. Atty., Detroit, Mich., Howard Weintraub, T. George Gilinsky, John J. Klein, Washington, D. C., for plaintiff-appellee.

Before PECK, ENGEL and MERRITT, Circuit Judges.

ENGEL, Circuit Judge.

Richard Enright was convicted by a jury on three counts of a four-count indictment. Count 1 charged him with conspiracy to violate 18 U.S.C. § 1955 (1976), which prohibits the operation of certain illegal gambling businesses. Count 2 charged the substantive offense under Section 1955 by aiding and abetting in the operation of the business. Count 3 charged Enright with conspiracy to obstruct the enforcement of Michigan's gambling laws, in violation of 18 U.S.C. § 1511 (1976). ¹

Enright was the Chief of Police of the City of Ecorse, Michigan. The government's theory was that he used his position as police chief to protect a gambling operation in return for payoffs over a number of years. Four other police officers were indicted with Enright, as was the superintendent of the local Public Works Department of the city. Enright was tried alone after several of the co-defendants, including all of the other police officers, pleaded guilty or Nolo contendere.

There was substantial and convincing proof to show that Augustus Carter, who appeared as the key government witness, ran a numbers racket out of his restaurant, the N & N Snack Shop, in Ecorse, between 1969 and 1974. The proofs showed that employees of the restaurant would accept wagers on the premises over the phone and that the restaurant was the control center for a large operation of bookmakers who took bets at other locations and reported them to the restaurant. An FBI investigation culminated in the execution of a search warrant of the premises and the seizure of betting slips and gambling paraphernalia. Carter testified on the government's behalf at trial, and further evidence was secured by one Charles Taylor, who worked in an undercover capacity in the police force and infiltrated the conspiracy. There was, in short, extensive evidence that a gambling operation existed and that there was a conspiracy within the police force in Ecorse to protect it. The foregoing facts are not seriously challenged on appeal. The principal controversy at trial and on appeal centers on the link between Enright and that conspiracy.

Perhaps the most damaging evidence of Enright's involvement was hearsay evidence in the form of a recorded conversation between Augustus Carter and Charles Taylor which took place during the course of the conspiracy. There Carter's explanation to Taylor of Enright's long-standing role in the conspiracy was clearly set forth. Equally damaging was hearsay evidence in the form of a recorded conversation on July 19, 1972 between Charles Taylor and James Jackson, in which the latter advised Taylor that he was paying Enright the sum of $125 a month for his cooperation. These recordings had to be admissible, if at all, under the conspiracy exception to the hearsay rule. ²

In United States v. Mayes, 512 F.2d 637 (6th Cir.), Cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975), our circuit recognized what it conceived to be the majority rule of the circuits to the effect that the predicate for admission of the hearsay statement of a co-conspirator is the existence of a "Prima facie case" of the conspiracy and of the defendant's connection with it. There, citing South-East Coal Co. v. Consolidation Coal Co., 434 F.2d 767 (6th Cir. 1970), Cert. denied, 402 U.S. 983, 91 S.Ct. 1662, 29 L.Ed.2d 149 (1971); Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), and also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we held that a Prima facie case

is less than proof beyond a reasonable doubt; indeed, it is less than a preponderance. . . . Moreover, the prima facie case need not be established before the proffered hearsay may be admitted; the judge may admit it conditionally. It is sufficient if at the close of the government's proofs, a prima facie case of the conspiracy and the defendant's connection with it has been established by "independent or disassociated evidence."

Id. at 651. While Mayes was decided before adoption of the Federal Rules of Evidence, the Prima facie test has continued to be cited approvingly in our circuit. United States v. Woods, 544 F.2d 242, 264 (6th Cir. 1976), Cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); United States v. McManus, 560 F.2d 747, 750 (6th Cir. 1977), Cert. denied, --- U.S. ---, 98 S.Ct. 894, 54 L.Ed.2d 798 (1978). Neither opinion, however, expressly addressed the impact of the Federal Rules of Evidence upon our decision in Mayes. That issue is raised here.

Before the adoption of the Federal Rules of Evidence, the First Circuit, like our own, followed the rule that a co-conspirator's hearsay statements may be admitted if the government establishes a Prima facie case by means of independent, non-hearsay evidence. United States v. Johnson, 467 F.2d 804 (1st Cir. 1972), Cert. denied, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 270 (1973). However, in United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), the court decided that the Prima facie test was no longer valid in light of Rule 104(a), which provides:

Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

Focusing on the trial court's obligation to "determine" a preliminary question, Judge Coffin reasoned that the Rule imposes a greater duty upon the court than simply to satisfy itself that a Prima facie case exists. Instead, the district court, as the trier of preliminary questions, must resolve by a preponderance of the evidence whether the government has demonstrated the existence of a conspiracy and the defendant's connection with it. 548 F.2d at 23. Only when this threshold burden has been met may the district court admit a co-conspirator's out-of-court statements as admissions against the defendant under Rule 802(d)(2)(E).

Enright urges us to reconsider our holding in Mayes in the light of Petrozziello and Rule 104.

While the parties agreed during trial that the Mayes test was controlling, Judge Churchill addressed the applicability of Rule 104, as construed by the First Circuit in Petrozziello, in an opinion denying a post-trial motion for judgment of acquittal or new trial. Although expressing a personal preference for the rule announced in Petrozziello, the trial judge declined to apply it "because I do not believe it is actually mandated by Fed.R.Evid. 104 and I consider Mayes to be a binding precedent."

It is unclear whether Rule 104(a) or Rule 104(b) governs the admissibility of a co-conspirator's out-of-court statement. Although Petrozziello tacitly assumes that 104(a) applies, Judge Weinstein points out that Rule 104(b) may govern. 1 Weinstein's Evidence P 104(05) at 104-39 to -40, 104-43 (1977). Rule 104(b) provides:

Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

Rejecting the reasoning of Petrozziello, the Fifth Circuit has concluded that 104(b) applies since the admissibility of the evidence "depends upon the fulfillment of a condition of fact" that is, the existence of a conspiracy and the defendant's connection with it. United States v. Ochoa, 564 F.2d 1155, 1157 & n. 2 (5th Cir. 1977); See United States v. Brown, 555 F.2d 407, 423 nn. 38, 39 (5th Cir. 1977). In Ochoa, the Fifth Circuit reaffirmed its prior practice of admitting the evidence upon proof of a Prima facie case.

The issue can be framed in terms of competency: whether the conspiracy and the defendant's participation in it render the hearsay declarations sufficiently reliable to merit admission. Considered in this light, the preliminary question is for the judge under 104(a) as are other hearsay rulings. See Advisory Committee Note to Rule 104(a). On the other hand, the issue can be couched in terms of relevancy: whether the declarant's statements are largely irrelevant unless the defendant and the declarant are joint members of a criminal enterprise. Weinstein, Supra, P 104(05) at 104-39 to -40. ³ While the difference has substance in practice, the Rule itself provides no guidance and its history, like its text, is ambiguous.

On balance, we conclude that a fair reading of subsections (a) and (b) favors the construction that 104(a) should be applicable to the question of the admissibility of a co-conspirator's statements. The issue, as we see it, is more naturally that of admissibility of hearsay evidence than it is of the relevancy of the evidence sought to be admitted, particularly as relevancy is defined in Rule 401. The question seems to be more one of the basic reliability and fairness of admitting the evidence rather than a relevancy question of whether the evidence has any tendency to make a fact in issue more or less probable than it would be without that evidence. Fed.R.Evid. 401. We therefore decide that Rule 104(a) provides the proper basis for analyzing the preliminary question of admissibility of a co-conspirator's out-of-court statement.

Having found 104(a) to be more applicable, the problem of what standard to employ...