U.S. v. Gonzalez, 76-3823

• Decision Date: 28 September 1977
• Docket Number: No. 76-3823,76-3823
• Citation: 559 F.2d 1271
• Parties: 2 Fed. R. Evid. Serv. 469 UNITED STATES of America, Plaintiff-Appellee, v. Ramiro GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1271

559 F.2d 1271

2 Fed. R. Evid. Serv. 469

UNITED STATES of America, Plaintiff-Appellee, v. Ramiro GONZALEZ, Defendant-Appellant.

No. 76-3823.

United States Court of Appeals Fifth Circuit.

Sept. 28, 1977.

Joe A. Cisneros, Fortunato P. Benavides, McAllen, Tex., for defendant-appellant.

James R. Gough, U. S. Atty., George A. Kelt, Jr., Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This case involves the question of whether the grand jury testimony of a previously convicted coconspirator who refuses to testify at trial is admissible against a criminal defendant. We hold that the transcript is inadmissible hearsay because it does not qualify either as a statement against interest, Fed.R.Evid. 804(b)(3), or as a statement with "equivalent circumstantial guarantees of trustworthiness," Fed.R.Evid. 804(b)(5).

The facts reflect a typical marijuana importation plan along the Texas border. Rogelio Guerrero was hired to drive a truck to a certain spot, wait for it to be loaded, and then drive it to a designated place to be turned over to someone else. In common parlance, he was hired as a "mule," to be paid $500 for transporting some 2,160 pounds of marijuana.

The plan was unsuccessful and several participants were arrested, including Guerrero. At the time of his arrest, Guerrero said that he had been hired by a Mexican male, whom he would not identify. Subsequent to his conviction for possession with intent to distribute, 21 U.S.C.A. § 841(a)(1), for his role in this scheme, he was called before the grand jury and asked who had hired him. After agonizing over the dilemma of either testifying and exposing his family and himself to retaliatory injury by other criminals, or not testifying and incurring prolonged confinement by the Government for contempt, Guerrero eventually answered the leading questions of the prosecuting attorney to "finger" defendant Ramiro Gonzalez.

When Gonzalez came to trial, however, Guerrero refused to testify, even though he had already been convicted, was granted immunity, and was ultimately found in contempt. Deciding that Guerrero was "unavailable" as a witness within the meaning of Fed.R.Evid. 804, the district court thereupon admitted into evidence that portion of the grand jury transcript in which Guerrero identified defendant Gonzalez as the man who had hired him to drive the truck. The other evidence which tended to connect defendant with the importation was slight enough to make Guerrero's grand jury testimony crucial. This appeal poses the issue of whether the grand jury testimony could be properly used to convict Gonzalez.

Guerrero was clearly "unavailable" under Fed.R.Evid. 804(a). " 'Unavailability as a witness' includes situations in which the declarant . . . (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so." Here, of course, Guerrero did so refuse and the court found him in contempt.

The Rule provides that certain statements are not excluded by the hearsay rule when the declarant is unavailable. The first of those provisions relied on by the Government is Fed.R.Evid. 804(b)(3), which codifies the "statement against interest" exception to the hearsay rule. It makes admissible "(a) statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true." See also United States v. Bagley,537 F.2d 162 (5th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977).

We conclude that this section did not render Guerrero's out-of-court statements admissible. First, since he had been convicted and given immunity, Guerrero's statement could not subject him to criminal liability. In addition the pressures put on him by the prosecutor and the grand jury to testify would seem to make the giving of testimony to be in his best interest, rather than against it. As the Advisory Committee on the Federal Rules of Evidence noted, "a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest." A complete reading of the grand jury transcript discloses that the witness was closely weighing whether it would be better for him to testify under the circumstances, or not to testify. He obviously decided it was to his best interest to testify. Given the prosecutor's offer of immunity for offenses concerning this marijuana transaction, the only civil or criminal liability that he could face at the time would occur if he did not testify. Thus whether he told the truth or not was incidental to what would happen to him if he did not say something. If he answered the...