U.S. v. Guinan, 85-2866

• Decision Date: 07 January 1988
• Docket Number: No. 85-2866,85-2866
• Citation: 836 F.2d 350
• Parties: 24 Fed. R. Evid. Serv. 650 UNITED STATES of America, Plaintiff-Appellee, v. Michael J. GUINAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 350

836 F.2d 350

24 Fed. R. Evid. Serv. 650

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. GUINAN, Defendant-Appellant.

No. 85-2866.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 1986.

Decided Jan. 7, 1988.

Robert S. Bailey, Chicago, Ill., for defendant-appellant.

Gillum Ferguson, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD, COFFEY, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

Defendant-Appellant, Michael J. Guinan, appeals his conviction of six counts of filing false income tax returns, in violation of 26 U.S.C. Sec. 7206(1), and two counts of fraudulent use of social security numbers, in violation of 42 U.S.C. Sec. 408(g)(2). We affirm.

I. Background

On April 26, 1984, a four-count indictment was filed charging the defendant with filing false income tax returns for the tax years 1977, 1979, 1980, and 1981, in violation of 26 U.S.C. Sec. 7206(1). ¹ On August 16, 1984, Guinan's longtime paramour and wife of seven months, Loretta Clarke Guinan ("Lori Guinan"), telephoned IRS Special Agent Patrick McDermott, told him that she and her husband had become estranged and she had filed for a divorce, and indicated that she wanted to provide evidence about Guinan's finances. During the remainder of August and early September, Lori Guinan met or spoke with Agent McDermott at least ten times. Although some of the information provided by Lori Guinan was self-incriminating, she was not promised immunity; she was told, however, that her cooperation would be considered in deciding whether she would be prosecuted. Based on his notes of his interviews and telephone conversations with Lori Guinan, McDermott prepared a written statement. Lori Guinan reviewed the statement three times. She went over the statement with Agent McDermott on September 19, 1984 for one-half hour, and again on September 20, this time for an hour. Finally, later that day, Lori reviewed the statement for about two hours with an Assistant U.S. Attorney. She was allowed to make changes in the statement and did make some minor revisions. Lori Guinan then signed the statement and read it under oath before a grand jury on September 20, 1984. In her grand jury testimony, Lori Guinan identified herself as the wife of Michael J. Guinan and stated that she was separated from and planning to divorce him. She stated that she had known Guinan since June 1976 and testified to various aspects of Guinan's expenditures and financial arrangements between that time and 1984. The next day, September 21, 1984, a superseding indictment was filed against Michael Guinan adding two counts of filing false tax returns for the tax years 1978 and 1982.

After her grand jury appearance, Lori Guinan met with Agent McDermott approximately five more times; she never recanted her testimony. During this time she retained an attorney and was promised immunity. McDermott last saw Lori Guinan on November 2, 1984. On November 6, Lori Guinan disappeared. After attempting unsuccessfully to locate her, on November 30, 1984, the U.S. Attorney's office gave notice to defendant's counsel that it intended to offer Lori Guinan's testimony at trial pursuant to Fed.R.Evid. 804(b)(5), ² an exception to the hearsay rule.

On December 27, 1984, the defendant failed to appear for trial, and a warrant for his arrest was issued. Guinan was apprehended in California in April 1985. In May of 1985 a second superceding indictment was filed adding two counts of perjury, in violation of 18 U.S.C. Sec. 1623, ³ one count of failure to appear, in violation of 18 U.S.C. Sec. 3146(a)(1), ⁴ and four counts of fraudulent use of social security numbers, in violation of 42 U.S.C. Sec. 408(g)(2). ⁵

On June 18, 1985, the government filed a motion to admit the grand jury testimony of Lori Guinan. The defendant responded with a memorandum of law in opposition to the government's motion, and a hearing was held on June 26, 27, and 28, 1985 regarding the admissibility of Lori Guinan's testimony under Rule 804(b)(5).

The trial court, ruling orally at the conclusion of the hearing, found Lori Guinan's grand jury testimony admissible. In reaching that conclusion, the court found that 1) notice to the defendant was adequate; 2) the government had made a satisfactory showing that the witness was unavailable; ⁶ 3) the statement contained evidence of facts material to the government's proof that the defendant's income was falsely reported on his tax returns; 4) due to Lori Guinan's relationship with the defendant, her statement was more probative than any other available evidence; 5) the interests of justice warranted admission of the statement into evidence; and 6) the corroboration offered in support of the statement was "substantial", and the statement was made voluntarily and under oath. The court also found that the defendant's counsel had ample opportunity to cross-examine Agent McDermott at the hearing regarding the grand jury statement and the circumstances under which it was prepared. Although the court expressed some concern about the form of the grand jury testimony--a statement previously prepared by Agent McDermott and read verbatim--it found that that format was used in order to organize material developed over a period of time. ⁷ In sum, the court concluded that the requirements of Rule 804(b)(5) were met, and the grand jury testimony was admissible under that Rule. The court did, however, excise portions of the statement that it found conclusory, irrelevant, or unduly prejudicial.

At the defendant's trial, the redacted version of Lori Guinan's grand jury testimony was read to the jury by a female Special Agent of the IRS. The jury convicted Guinan of six counts of filing false income tax returns, two counts of fraudulent use of social security numbers, ⁸ and one count of failure to appear. Guinan received an aggregate sentence of sixteen years in prison. ⁹

On appeal Guinan does not challenge his conviction on the charge of failure to appear, but argues that his conviction on all of the other counts should be reversed because the admission of Lori Guinan's grand jury statement violated both the Federal Rules of Evidence and his Sixth Amendment right to confront the witnesses against him.

II. Rule 804

Guinan contends that the trial court's admission of Lori Guinan's testimony violated the Federal Rules of Evidence. In support of that contention, he argues, first, that the admissibility of grand jury testimony must be determined under Rule 804(b)(1), rather than 804(b)(5).

Rule 804(b), under the heading, "Hearsay exceptions," lists types of statements not excluded by the hearsay rule if, as in this case, the declarant is unavailable as a witness. The first four subsections of Rule 804(b) list specific categories of statements excepted from the hearsay rule, namely: 1) former testimony; 2) statements under belief of impending death; 3) statements against interest; and 4) statements of personal or family history. Rule 804(b)(5) then sets out a catch-all exception for "statement[s] not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness," provided the other requirements of subsection (b)(5) are met. The defendant argues, essentially, that since the statements at issue here consist of grand jury testimony, they fall into the general category of "former testimony," and are "specifically covered by" exception (b)(1); ¹⁰ therefore, he argues, their admissibility must be tested only under that subsection, rather than under the catch-all provision, (b)(5). The government responds that the defendant waived this argument by failing to raise it before the trial court. In his reply brief, defendant points out that he did raise the issue in his memorandum in support of his motion in limine to exclude Lori Guinan's testimony. There, Guinan asserted, inter alia, "It is illogical to argue that the Federal Rules (804(b)(1) [sic] provide specifically that grand jury testimony is not admissible [sic] due to lack of confrontation, and then turn to 804(b)(5) and argue it is admissable [sic] under a general catch-all 'exception' rule." Defendant did not press the argument at the hearing six months later. Assuming that this sufficed, nonetheless, to bring the issue to the trial court's attention, this court has already decided it adversely to the defendant. In 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), we explicitly stated, "Since grand jury transcripts do not come within one of the specific hearsay exceptions in Rule 804, they are admissible if at all only under the stringent criteria of 804(b)(5), the catch-all provision." ¹¹ The trial court therefore properly considered the admissibility of the grand jury testimony under Rule 804(b)(5).

The defendant also contends, however, that even if Rule 804(b)(5) provides the proper test, the court erroneously concluded that Lori Guinan's grand jury testimony met its requirements. In particular, he argues that the statement does not have "circumstantial guarantees of trustworthiness" equivalent to those of statements within the specified exceptions of subsections (b)(1)-(b)(4). We disagree.

"A trial judge has considerable discretion, within the parameters of the rules of evidence, in determining whether ... hearsay statements contain the necessary circumstantial guarantees of trustworthiness. See United States v. Howard, 774 F.2d 838, 845 (7th Cir.1985); Huff v. White Motor Corp., 609 F.2d 286, 291 (7th Cir.1979)." United States v. Vretta, 790 F.2d 651, 659 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 179, 93 L.Ed.2d 115 (1986). We find no error in the trial judge's exercise of that discretion.

In Boulahanis, this court affirmed the trial court's admission of the grand jury testimony of an unavailable declarant under Rule 804(...