U.S. v. Hendrieth, 89-3672

• Decision Date: 30 January 1991
• Docket Number: No. 89-3672,89-3672
• Citation: 922 F.2d 748
• Parties: 32 Fed. R. Evid. Serv. 210 UNITED STATES of America, Plaintiff-Appellee, v. Robert Leslie HENDRIETH, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 748

922 F.2d 748

32 Fed. R. Evid. Serv. 210

UNITED STATES of America, Plaintiff-Appellee, v. Robert Leslie HENDRIETH, Defendant-Appellant.

No. 89-3672

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Jan. 30, 1991.

Donald S. Modesitt, Tallahassee, Fla., for defendant-appellant.

Stephen S. Dobson, III, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before JOHNSON and CLARK, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:

Appellant, Robert Leslie Hendrieth, appeals his conviction and sentence for conspiracy to pass counterfeit Federal Reserve notes, in violation of 18 U.S.C. Sec. 371, and for receiving counterfeit Federal Reserve notes with intent to pass them as genuine, in violation of 18 U.S.C. Sec. 473. The jury returned a verdict of guilty on both counts on April 27, 1989. Appellant was sentenced on August 1, 1989 to thirty-three months imprisonment on each count, with sentences to run concurrently. Because we find no error in the district court proceedings, we affirm.

FACTS

On February 24, 1989, Verbus Arthur Taylor arrived in Tallahassee, Florida with approximately $49,500 in counterfeit $10.00 Federal Reserve notes. Shortly after his arrival in Tallahassee, he met with the appellant, Robert Leslie Hendrieth, and asked if Hendrieth would accompany him to Canada. When Taylor showed Hendrieth the counterfeit money, Hendrieth offered to distribute the money in Tallahassee instead of accompanying Taylor to Canada. Hendrieth received all of the counterfeit money and made arrangements to sell the money in Tallahassee.

Hendrieth enlisted the aid of Moses McFadden, Jr. to assist him in finding buyers for the currency. Hendrieth ultimately negotiated with individuals from Gadsden County, Florida who agreed to purchase some of the counterfeit currency. Taylor, who was not involved in these meetings, held Hendrieth responsible for negotiating the sale and giving Taylor his percentage of the receipts.

One of the individuals at the meeting to negotiate the sale of currency contacted and agreed to cooperate with the police. A subsequent meeting between Hendrieth and the cooperating buyer ultimately led to Hendrieth's arrest, indictment, and conviction. $20,950.00 in counterfeit currency was recovered from Hendrieth's vehicle.

DISCUSSION

Hendrieth raises five issues on appeal. First, during jury selection for his trial, the prosecution exercised three peremptory challenges, each to exclude a black juror. The jury selected had no black jurors. Hendrieth, who is black, challenges the prosecutor's use of peremptory challenges as a denial of Equal Protection.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that when, as here, the defendant establishes a prima facie case of discrimination, the prosecution must provide a specific and facially neutral explanation of its peremptory challenges. In this case, the district court excluded one juror because she was the sister-in-law of a defense witness, another because he admitted bias against the government, and a third because she was inattentive and rubbing and rolling her eyes during voir dire. Thus, the prosecutor proffered a credible and nonracially motivated explanation for the exclusion of the three challenged jurors. The requirement enunciated in Batson having been satisfied, the district court properly overruled the defendant's objection to peremptory challenges.

Next, the defendant argues that the district court erred when it denied defense counsel's request to present hearsay evidence of statements made by a witness who invoked his Fifth Amendment right to remain silent. Defendant argues that he needs the testimony of Sandy Payne, an alleged drug-informant who, prior to Hendrieth's trial, was arrested on drug charges and who properly invoked his Fifth Amendment privilege against self-incrimination. Once Payne became unavailable, the defendant sought to introduce Payne's alleged exculpatory statements through the statements of Addys Walker. Walker claimed that he was in the federal courthouse looking for his attorney, who also was Hendrieth's counsel, when Payne, a stranger to Addys Walker, began a conversation with him while the two were sitting outside the courtroom on the day of Hendrieth's trial. Payne allegedly told Walker that, among other things, Payne and his family were drug dealers and that to avoid arrest, he had been cooperating with the government by setting up drug dealers and persons passing counterfeit money.

Statements made by a witness who is unavailable at trial which tend to exculpate a defendant may be admissible as a hearsay exception under Federal Rule 804(b) if (1) the declarant is unavailable; (2) the statements are against the declarant's penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. Fed.R.Evid. 804(b)(3); United States v. Gossett, 877 F.2d 901, 906 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1141, 107 L.Ed.2d 1045 (1990). "Unavailability," for purposes of the Rule, includes a declarant not testifying because of privilege. Fed.R.Evid. 804(a)(1); United States v. Thomas, 571 F.2d 285, 288 (5th Cir.1978).

Under the "clearly erroneous" standard of review for failure to consider an element of admissibility under Rule 804(b)(3), United States v. Bagley, 537 F.2d 162, 166 (5th Cir.1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977), this court finds no error in the district court's determination that no evidence existed to corroborate Walker's recitation of Payne's alleged story that he had been setting up people for the government. The district court also considered Walker's motive to misrepresent the matter, the character of the speaker, whether other people heard the out of court statement, the spontaneity of the statement, and the relationship between the speaker and the witness. The district court found Walker completely unworthy of belief and, as a result, was unable to determine what, if any, statements actually were made by Payne. See United States v. Alvarez, 584 F.2d 694, 701-02 (5th Cir.1978) (pursuant to 804(b)(3), the court should determine credibility primarily by analysis of the probable veracity of the in-court witness and the reliability of the out-of-court declarant). Payne's statements, thus, were properly excluded under the rules of evidence.

Third, Hendrieth claims that the district court erred by permitting the government to introduce evidence of statements alleged to have been made by the defendant while in custody and after the defendant had invoked his right to remain silent and to obtain the assistance of counsel. The district court, in a hearing held outside the presence of the jury, heard testimony of the arresting officer, Ray Jones, that he advised Hendrieth of his Miranda rights, and Hendrieth responded "Let's make a deal." Officer Walter Beck corroborated Jones' testimony. Both officers testified that Hendrieth volunteered additional information at the police department, stating that he was helping out a friend and had "screwed up." He repeated his statements, while on the telephone, within earshot of the police officers.

This court previously has held that statements made while in custody are not per se involuntary, Martin v. Wainwright, 770 F.2d 918 (11th Cir.1985), cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986), and statements voluntarily made by the defendant after he has invoked his Miranda rights are admissible against him. United States v. Ogueri, 798 F.2d 452 (11th Cir....