U.S. v. Panzardi-Lespier, PANZARDI-LESPIER

• Decision Date: 12 September 1990
• Docket Number: No. 86-2140,PANZARDI-LESPIER,86-2140
• Citation: 918 F.2d 313
• Parties: 31 Fed. R. Evid. Serv. 846 UNITED STATES of America, Appellee, v. Santiago, a/k/a "Chago", Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 313

918 F.2d 313

31 Fed. R. Evid. Serv. 846

UNITED STATES of America, Appellee, v. Santiago PANZARDI-LESPIER, a/k/a "Chago", Defendant, Appellant.

No. 86-2140.

United States Court of Appeals First Circuit.

Heard Sept. 12, 1990.

Decided Nov. 9, 1990.

Rehearing and Rehearing En Banc Denied May 8, 1991.

Carlos Perez-Olivo, San Juan, P.R., for defendant, appellant.

Jose A. Quiles, Asst. U.S. Atty., Hato Rey, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty. Hato Rey, P.R., and Carlos A. Perez, Asst. U.S. Atty., San Juan, P.R., were on brief, for appellee.

Before TORRUELLA and CYR, Circuit Judges, and BOWNES, Senior Circuit Judge.

TORRUELLA, Circuit Judge.

On appeal is the conviction and judgment entered by the United States District Court for the District of Puerto Rico. Appellant Santiago Panzardi-Lespier was convicted and sentenced for conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. Secs. 841(a)(1), 844(a), 843(b), and 846. For the reasons stated below we affirm.

FACTS

Appellant was arrested and charged on April 18, 1985. The prosecution alleged that on or about April 3 and 4, 1985, Panzardi-Lespier and three others conspired to possess with intent to distribute 122.97 grams of heroin. In furtherance of this conspiracy on April 3, Panzardi-Lespier, Jose Panzardi-Alvarez and Henry Castro-Poupart met with a confidential informant, Avelino Cabrera-Diaz. During this meeting the participants discussed the purchase of two ounces of heroin and supplied the informant with a sample. Thereafter, 46.57 grams of the narcotic were delivered. On the following day, another 53.4 grams of heroin were delivered by Panzardi-Lespier to the confidential informant. All these meetings were observed by special narcotics task force agents and recorded by the informant with task force equipment. After every meeting, the informant would return the recording machine along with the tapes and substances obtained. With regard to the substance, field tests were performed providing a positive reaction for opium derivative. The recordings were placed in special evidence envelopes. Agents then proceeded to listen to and copy the recordings. Thereafter, the recordings were taken to be enhanced by a special task force agent who kept them under his custody at all times. The purpose of this enhancement was to eliminate background noise.

On November 9, 1985, the confidential informant was murdered. His body was identified on November 16, 1985, and Jose Panzardi-Alvarez was charged with the murder. This charge was pending on January 13, 1986, the first day of trial in the case which is the subject of this appeal.

During the first day of trial, the Assistant United States Attorney provided counsel for the defense with a copy of the dead informant's grand jury testimony. On the third day of trial, the government announced that it intended to use that testimony under Rule 804(b)(5) of the Federal Rules of Evidence. On the seventh day of trial the government was allowed to read into evidence the grand jury testimony of Avelino Cabrera-Diaz.

The evidence used by the government to convict appellant included the grand jury testimony of the murdered informant, the testimony of the surveillance officers, a video tape showing appellant and the informant exchanging money, and several tape recordings made by the informant containing the conversations he held with appellant. Panzardi-Lespier was sentenced in toto to a term of imprisonment of 19 years and a $50,000 fine. The issues on appeal are whether it was error for the trial court to admit the informant's grand jury testimony and whether it was error to admit the tape recordings into evidence.

DISCUSSION

I. Grand Jury Testimony

A. Rule 804(b)(5)

The dispute about admissibility focuses on Fed.R.Evid. 804(b)(5). ¹ Appellant argues that it was error to admit the deceased informant's grand jury testimony because it was not trustworthy and because the district court did not comply with the pre-trial notice requirement of Rule 804(b)(5). We review the district court's application of the catch-all hearsay exception provided by Rule 804(b)(5) under an abuse of discretion standard. Cook v. United States, 904 F.2d 107, 111 (1st Cir.1990); United States v. Zannino, 895 F.2d 1, 7 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990).

1. Trustworthiness

In United States v. Zannino, we analyzed Rule 804(b)(5) stating that it "provides that statements made by an unavailable declarant--and few declarants are more 'unavailable' than dead men," may be introduced if they are "accompanied by 'circumstantial guarantees of trustworthiness.' " Zannino, 895 F.2d at 7. But first a court must find that the statement is offered as evidence of a material fact, it is probative on the point for which it is offered, and justice will be best served by its admission. See also Zannino, 895 F.2d at 7.

Several circuits have read Rule 804(b)(5) to allow the admission of grand jury testimony, see United States v. West, 574 F.2d 1131 (4th Cir.1978), particularly where the declarant is no longer available and the requisite indicia of reliability exist. See Zannino, 895 F.2d at 6; see also United States v. Guinan, 836 F.2d 350, 358 (7th Cir.1988), cert. denied, 487 U.S. 1218, 108 S.Ct. 2871, 101 L.Ed.2d 907 (1988); United States v. Marchini, 797 F.2d 759, 764-65 (9th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1288, 94 L.Ed.2d 145 (1987); United States v. Walker, 696 F.2d 277, 280-81 (4th Cir.1982), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983); United States v. Barlow, 693 F.2d 954, 963-65 (6th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983); United States v. Carlson, 547 F.2d 1346 (8th Cir.1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). In each of these cases the determination of admissibility was based on an exhaustive factual analysis and the encompassing circumstances of the case. See West, 574 F.2d at 1134-38.

Courts have consistently provided that former testimony is trustworthy when it is given under oath, when it is not implausible and when it is solidly corroborated. Zannino, 895 F.2d at 6-7; see, e.g., United States v. Workman, 860 F.2d 140, 144-46 (4th Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1529, 103 L.Ed.2d 834 (1989). Additional factors of reliability have been found to be: whether the witness testified about matters within his personal knowledge, Zannino, 895 F.2d at 6-7 (citing Marchini, 797 F.2d at 765), whether the informant appeared without the protection of immunity, see Guinan, 836 F.2d at 352, and whether the witness' version of the events has been impeached. Zannino, 895 F.2d at 7.

The record in this case reveals that the court, after a careful analysis of the facts, properly tested the admissibility of the disputed testimony, examining the evidence through proof of corroboration and reliability. West, 574 F.2d at 1137-38; United States v. Garner, 574 F.2d 1141 (4th Cir.1978); United States v. Murphy, 696 F.2d 282 (4th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1303 (1983); Carlson, 547 F.2d at 1357. Specifically, the district court stated that the testimony of the special task force agents, the recordings and the heroin obtained, corroborated the information contained in the deceased informant's grand jury testimony. Thereafter, the court went on to rule that special circumstances were present in this case, particularly the fact that the declarant was unavailable because he had been murdered, and that one of the co-defendants had actually been charged with this murder.

Upon review, we find the district court properly determined the admissibility of the testimony in question and we agree that the evidence on the record supports the determination that the informant's testimony was reliable. Therefore, viewing the evidence as a whole, we agree with the district court that the statement made by the informant before the grand jury contained sufficient guarantees of trustworthiness.

2. Timely notice

Appellant argues that the government failed to comply with the formal notice requirement of Rule 804(b)(5) when it failed to provide pre-trial notice that it was going to use the informant's grand jury testimony. Panzardi-Lespier argues that this requirement should be strictly interpreted.

The Second Circuit has held that the formal notice requirement of Rule 804(b)(5) must be strictly complied with. United States v. Ruffin, 575 F.2d 346, 358 (2d Cir.1978). By contrast, several other circuits have held that the purpose of the notice provision is satisfied even though notice is given after the trial begins, as long as there is sufficient opportunity provided for the adverse party to prepare for and contest the admission of the evidence offered pursuant to the rule. United States v. Bailey, 581 F.2d 341, 348 (3d Cir.1978); Carlson, 547 F.2d at 1355; Lloyd v. Professional Realty Services, Inc., 734 F.2d 1428, 1434 n. 15 (11th Cir.1984), cert. denied, 469 U.S. 1159, 105 S.Ct. 908, 83 L.Ed.2d 922 (1985) ("In affirming the district court's application of the notice requirement in this case, we do not foreclose the possibility that a liberal application may, in other cases, be acceptable under our deferential standard for reviewing district court evidentiary rulings.").

In Furtado v. Bishop, 604 F.2d 80 (1st Cir.1980), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1979), a civil case, this circuit rejected the rigid interpretation of the pre-trial notice requirement in favor of the flexible approach adopted by most courts. In that case we found that there was sufficient evidence to support an inference that counsel had adequately prepared to meet the evidence contained in the statement submitted pursuant to Rule 804. The panel in that case, however, clearly stated that it was adopting an even more flexible approach than most ...