U.S. v. Ray

• Decision Date: 29 July 1985
• Docket Number: No. 84-2230,84-2230
• Citation: 768 F.2d 991
• Parties: 18 Fed. R. Evid. Serv. 1016 UNITED STATES of America, Appellee, v. Charles RAY a/k/a Carl Hathcock, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 991

768 F.2d 991

18 Fed. R. Evid. Serv. 1016

UNITED STATES of America, Appellee, v. Charles RAY a/k/a Carl Hathcock, Appellant.

No. 84-2230.

United States Court of Appeals,

Eighth Circuit.

Submitted April 9, 1985.

Decided July 29, 1985.

Lawrence Fleming, St. Louis, Mo., for appellant.

Larry D. Hale, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, FAGG, Circuit Judge, and HARRIS, ^* District Judge.

LAY, Chief Judge.

Charles Ray a/k/a Carl Hathcock appeals his conviction for failure to appear, a violation of 18 U.S.C. Sec. 3150 (1982). Ray asserts the district court ¹ erred in three respects: (1) in denying Ray's motion for judgment of acquittal based on insufficient evidence, (2) in admitting testimony and a transcript of a witness's prior unsworn statements as substantive evidence, and (3) in denying his motion to dismiss for violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161 (1982). We find that there exists sufficient evidence to support the conviction, but that it was reversible error to allow the transcript of prior unsworn testimony of Ray's attorney to be received by the jury as an exhibit. Because the testimony contained in the transcript was the only evidence of one element of the offense--notice--we find its receipt by the jury was not harmless error and necessitates a new trial. However, before entering our mandate to that effect, we order a limited remand to the district court to make the findings necessary to resolve the remaining issues involving the Speedy Trial Act.

Facts

Ray was originally charged on June 3, 1982 in an indictment alleging distribution and conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1982). Ray was released on a surety bond and was instructed by United States Magistrate Noce to appear for a preliminary hearing on June 7, 1982 at 2:00 p.m. However, an indictment was returned on June 3, 1982, obviating the need for a preliminary examination. Ray's attorney of record, Toby Hollander, was advised that the preliminary hearing was canceled and that Hollander and his client were to appear for arraignment before United States District Judge Wangelin on June 7, 1982 at 10:00 a.m. No notice of the arraignment was given directly to Ray by the district court. At the time designated for arraignment, Ray did not appear and Judge Wangelin ordered a bond forfeiture and issued a bench warrant for the arrest of Ray.

Ray was arrested on the federal warrant on July 12, 1983 in Houston, Texas. He was subsequently charged with state offenses and held by state authorities until October 13, 1983, when the state charges were dismissed. Federal authorities then took custody of Ray and on October 24, 1983, an order issued for Ray's removal from the Southern District of Texas to the Eastern District of Missouri. On November 22, 1983 Ray was arraigned before Judge Wangelin on the original cocaine charges. The same day Judge Wangelin recused himself and the case was re-assigned to United States District Judge Regan who set trial for December 27, 1983. Pretrial motions (pertaining to trial on the original cocaine charges) were filed on December 1, 1983. ² Trial did not commence as scheduled on December 27.

On December 28, 1983 a superseding indictment was returned charging Ray with the two original cocaine violations and the additional offense of failure to appear. ³ Ray was arraigned on the superseding indictment on January 13, 1984, at which time he executed a document entitled "consent to trial beyond 70 days." On February 14, 1984, the case was reassigned to United States District Judge Cahill. Ray filed a motion for severance of counts on February 22, 1984, and a supplemental motion to dismiss for denial of speedy trial on June 15, 1984. On June 22, 1984, Judge Cahill scheduled a hearing on the pretrial motions for June 28, 1984, and trial for July 2, 1984. The hearing took place on June 28 and the pending motions were denied by order dated June 29, 1984. The jury trial began on July 2, 1984 and a verdict was returned on July 11. Ray was found guilty of failing to appear and not guilty of the cocaine offenses. Ray's motion for a new trial was denied and he was sentenced to five years imprisonment. This appeal followed.

Sufficiency of the Evidence

Ray challenges the sufficiency of the evidence underlying his conviction for failure to appear. Ray contends the government failed to prove beyond a reasonable doubt two essential elements of the crime of failure to appear: notice and willfulness. At trial, the government introduced the testimony of Ray's attorney, Toby Hollander, at the scheduled arraignment before Judge Wangelin on June 7, 1982. The arraignment transcript reveals Hollander stated to Judge Wangelin that he had notified Ray of his required appearance. Although Hollander testified at trial that he could not say with any certainty that he had notified Ray of the scheduled arraignment, when shown a transcript of his earlier statements to Judge Wangelin, Hollander stated "if the transcripts said I said that I'm sure I did." Hollander also testified that his records indicated he made a one minute telephone call to Ray on June 3, 1982, but that he had no present recollection of the telephone call. Based on the transcript of Hollander's statements, the jury could reasonably have found Ray had actual notice of the scheduled arraignment. It was also established at trial that Ray had used an alias when he was arrested in 1982, when he appeared before Magistrate Noce, and when he signed the appearance bond. From all of the evidence, the jury could reasonably have believed Ray's failure to appear was willful and intentional. Thus, assuming the jury properly considered Hollander's testimony at the scheduled arraignment, an issue which we now turn to, we hold Ray's conviction should not be overturned because of insufficient evidence and the district court did not err in denying Ray's motion for acquittal.

Hollander Testimony

Ray argues Hollander's unsworn statements to the court on June 7, 1982 are inadmissible hearsay. Alternatively, he argues that, even if they are admissible under Federal Rule of Evidence 803(5), it was prejudicial error for the court to allow the jury to receive the transcript of Hollander's testimony as an exhibit. Ray contends that because the statements were admitted for impeachment purposes only, the trial court should have given a limiting instruction to the jury. The government argues the statements, although they are hearsay, were admissible for their truth as past recollection recorded under Fed.R.Evid. 803(5). The government further argues that receipt of the transcript by the jury, although contrary to rule 803(5), was harmless error. We agree with the government that the Hollander statements are admissible for their truth under rule 803(5), and therefore no cautionary instruction was necessary. See United States v. Porter, 544 F.2d 936, 938 n. 2 (8th Cir.1976). However, we find the receipt of the transcript by the jury was not harmless error.

It is unclear under what grounds the transcript was admitted. The government did not specify the basis on which it was offered and the district court admitted the transcript without any explanation for its ruling. Although Ray claims the prior statements of Hollander were admitted as impeachment material, the only reference in the trial transcript to the evidence as impeachment evidence is in the objection by Ray's counsel to its admission. We note, however, that if the grounds given by the district court for admissibility of the evidence are incorrect, the court's ruling will be reversed only if there are no grounds under which the evidence could properly have been admitted. Clark v. City of Los Angeles, 650 F.2d 1033, 1036 (9th Cir.1981); SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943).

A memorandum or record is admissible under the recorded recollection exception to the hearsay rule if (1) the witness once had knowledge, (2) now has insufficient recollection to testify fully, and (3) the record was made by the witness when the matter was fresh in his memory and reflected his knowledge correctly. United States v. Patterson, 678 F.2d 774, 778 (9th Cir.1982); United States v. Edwards, 539 F.2d 689, 691-92 (9th Cir.), cert. denied, 429 U.S. 984, 97 S.Ct. 501, 50 L.Ed.2d 594 (1976). Hollander's statements to Judge Wangelin at the scheduled arraignment and his testimony at Ray's trial establish foundational requirements (1) and (2). As for requirement (3), Hollander's statements in court on June 7, 1982 were obviously made when the matter was fresh in Hollander's memory since the telephone call was made only four days earlier on June 3, 1982. In addition, the accuracy of the transcript was confirmed when Hollander stated "if the transcript says I said that, I'm sure I did." We conclude Hollander's testimony was properly admitted under Fed.R.Evid. 803(5). Nonetheless, rule 803(5) contains the following specific limitation on the admission of a recorded recollection: "If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." Here, the transcript of the arraignment proceedings was offered by the government and received as an exhibit. Ray did not offer the exhibit as evidence, but objected to its introduction. The government concedes the admission of the transcript as an exhibit was error, but argues its receipt was "harmless error." We cannot agree. The Hollander transcript was the only evidence before the jury of notice to Ray of the scheduled arraignment, which is an essential element of the offense of failure to appear. In addition, the government, during its closing argument, specifically referred to the exhibit (government's exhibit 8), requesting the jury to look at the transcript. We cannot say the jury's verdict on the failure to...