U.S. v. Fernandez-Roque

• Decision Date: 13 April 1983
• Docket Number: D,FERNANDEZ-ROQU,No. 82-3578,82-3578
• Citation: 703 F.2d 808
• Parties: 12 Fed. R. Evid. Serv. 1781 UNITED STATES of America, Plaintiff-Appellee, v. Carlosefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 808

703 F.2d 808

12 Fed. R. Evid. Serv. 1781

UNITED STATES of America, Plaintiff-Appellee, v. Carlos FERNANDEZ-ROQUE, Defendant-Appellant.

No. 82-3578.

United States Court of Appeals Fifth Circuit.

April 13, 1983.

Knobloch & Knobloch, F. Smith Knobloch, Thibodaux, La., for defendant-appellant.

John P. Volz, U.S. Atty., Harry W. McSherry, Howat A. Peters, Jr., Asst. U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN and TATE, Circuit Judges, and DAVIS^*, District Judge.

TATE, Circuit Judge:

The defendant, Carlos Fernandez-Roque ("Roque"), appeals his conviction by a jury as a principal and a conspirator in the obstruction of criminal investigations, 18 U.S.C. Secs. 2, 371, 1510, and for interstate travel in aid of racketeering activities, 18 U.S.C. Sec. 1952. Roque was found to have participated in the shooting of Phillip Maronge, who became a government informant after his arrest for marijuana dealing. On appeal, Roque contends that the trial court erred by (1) admitting a fellow conspirator's testimony of hearsay statements of coconspirators when the government had not presented independent evidence of the existence of a conspiracy and the defendant's participation in it; (2) rejecting the defendant's attempts to impeach the government's witness through introducing into evidence the testimony of one of the coconspirators in an earlier trial of the same case, as averred to by another witness at that prior trial; (3) refusing to introduce into evidence the acquittals in the prior trial of those coconspirators; (4) finding that the government-arranged identifications of Roque were not impermissibly suggestive or prejudicial; and (5) finding that the evidence was insufficient to support the conviction. Finding no reversible merit to these contentions, we affirm.

1. Introduction of Hearsay Statements of Coconspirators

Roque contends that the district court erred in permitting Bruce, a conspirator who had pleaded guilty to the conspiracy to kill Maronge (the government informant), to testify as to hearsay statements made by Roque's alleged coconspirators. The statements were admitted under a hearsay exception, Fed.R.Evid. 801(d)(2)(E), which provides that statements "made by a coconspirator of a party during the course and in furtherance of the conspiracy" are admissible.

In United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), we set out the guidelines for the admissibility of a coconspirator's statements against a defendant on trial. We noted the requisite predicate facts to be that "there must be a conspiracy, the statement must be made during the course of and in furtherance of the conspiracy, and the declarant and the defendant must be members of the conspiracy." 590 F.2d at 578. Further, "the judge alone [must] make the determination of the admissibility of the evidence." Id. at 579-80. "[A]s a preliminary matter, there must be substantial, independent evidence of a conspiracy ... established by evidence independent of the coconspirator statement itself." Id. at 581 (emphasis in original). "[T]he trial court's threshold determination of admissibility is normally to be made during the presentation of the government's case and before the [coconspirator's statement] evidence is heard by the jury." Id.

At this stage, a declaration by a coconspirator against a defendant is admissible only when there is a " 'sufficient showing, by independent evidence, of a conspiracy among one or more ... defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy' ", id., at least by independent evidence sufficient "to take the question to the jury." Id. Further, at the end of the trial

[r]egardless of whether the proof has been made in the preferred order, or the coconspirator's statement has been admitted subject to later connection, on appropriate motion at the conclusion of all the evidence the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence independent of the statement itself (1) that a conspiracy existed, (2) that the coconspirator and the defendant against whom the coconspirator's statement is offered were members of the conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy.

590 F.2d at 582.

Here, the district court required the government to establish the James predicate before admitting in evidence any declarations made by a coconspirator. Through the testimony of Bruce (the coconspirator who had pleaded guilty and testified for the government), the prosecution established: the background surrounding Maronge (the victim's) arrest along with some of the coconspirators; Bruce's subsequent travel with another coconspirator to Miami at the request of yet another conspirator to meet with coconspirators and their return to Louisiana (where Maronge's subsequent shooting took place); Bruce's subsequent receipt of a telephone call from the defendant Roque to have him picked up and brought to meet with Bruce and another conspirator, following which Roque and the man who subsequently shot Maronge were brought to a meeting between the four; at a meeting of the four, Roque himself talked about how they were going to "get to" Maronge--following which, Maronge was indeed shot by the gunman the defendant Roque had brought to meet with Bruce.

Despite Roque's contention to the contrary, the predicate facts so established by evidence independent of coconspirators' out-of-court declarations were clearly sufficient to show a conspiracy, of which the defendant Roque was a member, to shoot Maronge, the government witness. See, e.g., United States v. Miller, 664 F.2d 94, 98 (5th Cir.1981). The out-of-court declarations were therefore admissible. Further, we find no error in the district court's holding at the conclusion of the trial that, without reference to the out-of-court declarations, the predicate facts of the conspiracy had been established by a preponderance of the evidence. ¹

Roque protests that the only evidence linking him to the conspiracy was Bruce's identification, and that the identification made at the time of Roque's arrest was flawed because it was based on prejudicial procedures. As we discuss in section 4 below, however, Bruce became personally acquainted with Roque on the several occasions they met to plan the shooting; moreover, other evidence adduced at trial (such as Roque's registration at the hotel where the coconspirators met and records of his telephone calls to and from the other coconspirators) connected him with the conspiracy. ²

2. Introduction of a Coconspirator's Testimony from a Prior Trial

Roque sought to impeach Bruce's testimony regarding the conspiracy to kill Maronge by introducing testimony of a coconspirator, Resende, from a trial in this same case in which Resende, Goodrich, and Bonvillain were acquitted. Resende was the only defendant who had testified in that trial. Urging that Resende, as well as Goodrich and Bonvillain, would take the Fifth Amendment if called to testify in Roque's subsequent trial, Roque attempted to examine a government agent to ask if he had been present at the prior trial where Resende had taken the stand and denied similar allegations made by Bruce. The trial court ruled that this was an improper attempt to introduce the trial testimony of a witness who was not called to testify in the present case and that the agent's testimony regarding Resende's statements did not constitute an exception to the hearsay rule contained in Fed.R.Evid. 804(b)(1).

Roque's defense counsel did not satisfy the requirements of Rule 804(b)(1), which provides that if the declarant is "unavailable" as a witness, there is an exception to the hearsay rule for "[t]estimony given as a witness at another hearing of the same or a different proceeding" of the party against whom the testimony is now offered--in this case, the government. ³ For purposes of the rule, "unavailability" encompasses, inter alia, a situation, which the defendant urges is implicated here, where the witness is "exempted by ruling of the court on the ground of privilege" or "persists in refusing to testify ... despite an order of the court to do so." Fed.R.Evid. 804(a). Roque, the proponent of the hearsay evidence, has the burden of proving the unavailability of the witness from the prior trial. See United States v. Amaya, 533 F.2d 188, 191 (5th Cir.1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1125, 51 L.Ed.2d 551 (1977).

Roque did not make a record of his efforts to produce Resende as a witness--he did not subpoena him or ask the judge for a ruling as to the unavailability on account of privilege or for an order to testify. There was thus no opportunity for the trial court to evaluate Resende's alleged refusal to testify and propensity to invoke the fifth amendment, or to ascertain whether some type of immunity was available to Resende from the effects of his possible incrimination by his testimony. ⁴ Cf. United States v. Pelton, 578 F.2d 701, 709-10 (8th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978) (Rule 804(a) "unavailability" does not exist where counsel made no effort to produce witness or to prove his refusal to testify or intent to exercise fifth amendment privilege). Since Roque's counsel did not bring the issue of Resende's unavailability into the ambit of the "discretion of the trial court to accept or reject counsel's representations" concerning Resende's privilege or refusal to testify, see Bailey v. Southern Pacific Railroad, 613 F.2d 1385, 1390 (5th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42 (1980), we cannot on appeal speculate as to the factual merits of those representations. ⁵

3. Evidence of Acquittal of Coconspirators

Roque...