U.S. v. Reynolds
| Decision Date | 18 August 1983 |
| Docket Number | No. 82-5628,82-5628 |
| Parties | 13 Fed. R. Evid. Serv. 1820 UNITED STATES of America v. Curtis REYNOLDS, William Parran. Appeal of William PARRAN. |
| Court | U.S. Court of Appeals — Third Circuit |
George E. Schumacher, Federal Public Defender, W. Penn Hackney (argued), Asst. Federal Public Defender, Pittsburgh, Pa., for appellant.
J. Alan Johnson, U.S. Atty., Paul J. Brysh (argued), Asst. U.S. Atty., Pittsburgh, Pa., for appellee.
Before ADAMS, HIGGINBOTHAM, Circuit Judges, STAPLETON, District Judge *.
William Parran, defendant/appellant, and a co-defendant, Curtis Reynolds, were indicted by a federal Grand Jury in the Western District of Pennsylvania. Count One of the three-count indictment charged that Parran and Reynolds, in violation of 18 U.S.C. § 371, conspired with each other to violate 18 U.S.C. § 1708 by possessing a Pennsylvania unemployment compensation check, knowing that the check had been stolen. It also charged that Parran and Reynolds conspired to violate 42 U.S.C. § 408(g) by using the social security number of the payee of the check, Stanford D. David, in an effort to cash the check. Counts Two and Three charged Parran and Reynolds with the substantive offenses alleged as the objects of the conspiracy in Count One. Reynolds pled guilty to Counts Two and Three immediately before trial. At their joint trial, Reynolds was tried as to Count One, and Parran was tried as to all three counts. Reynolds was found guilty on Count One, and Parran was found guilty on all three counts.
Parran appeals these convictions, relying on several grounds. Specifically, Parran argues that it was reversible error to admit into evidence co-defendant Reynolds' oral statement implicating Parran and to admit Parran's written statement incriminating himself. In addition, Parran argues that the district court abused its discretion by refusing to sever his trial from that of the co-defendant. Finally, Parran argues that, even when viewing the evidence in the light most favorable to the government, the evidence was insufficient to support the verdicts against him. We are persuaded by Parran on one issue, 1 that the district court erred in admitting into evidence the testimony from a postal inspector as to the statement Reynolds allegedly made after his arrest. In that statement Reynolds allegedly said in the presence of the postal inspector and Parran, "I didn't tell them anything about you." Because we believe that, in the context of this case, co-defendant Reynolds' statement was prejudicial hearsay evidence, its admission in this joint trial for the purpose of proving Parran's conspiratorial endeavor, as well as the substantive offenses charged, constitutes reversible error.
The evidence at trial showed that during the Spring of 1982 the United States Postal Inspection Service was engaged in an effort to identify and prosecute individuals who stole checks from the United States mails. The service secured the cooperation of Chircosta Studio which informed it of individuals who obtained photo I.D. cards under "suspicious" circumstances.
On April 5, 1982 Parran and Reynolds entered Chircosta Studio for the purpose of obtaining a photo I.D. card for Reynolds. A studio employee telephoned the Service and informed it that two individuals in the studio "did not appear to know ... the name and number ... that they wanted to put on the I.D." Appendix ("App.") 16a. The caller also gave a physical description of the two men.
Shortly after receiving the call, three postal inspectors went to the studio and observed the appellant and co-defendant leave the studio together while conversing and looking at a photo I.D. card. They crossed the street together. When they reached the other side, Parran appeared to say something to Reynolds and then continued down the street as Reynolds entered the bank. Reynolds attempted to have a check cashed, but the teller refused to do so because Reynolds did not have an account with that bank. Reynolds left the bank and stood outside looking in the direction that Parran had gone. Reynolds then crossed the street where he was arrested by postal inspectors for possession of a check that was allegedly stolen from the mail. The postal inspectors testified that after Reynolds' arrest, as Parran approached him, Reynolds said to Parran: "I didn't tell them anything about you." App. 24a. It is this statement that Parran claims was inadmissible hearsay and erroneously introduced into evidence against him.
This case presents the issue whether the admission of codefendant Reynolds' out-of-court statement into evidence against appellant Parran at their joint trial constituted prejudicial error. The government argues that Reynolds' statement is not hearsay. Its theory is that the statement was not admitted to prove that Reynolds did not say anything about Parran; instead it was admitted to prove the conspiracy to defraud as well as the co-defendants' joint participation in the substantive offenses charged in Counts Two and Three. Because the statement was allegedly not admitted for the express truth of the matter asserted, the government argues that the statement cannot be considered hearsay under Rule 801(c) of the Federal Rules of Evidence.
Rule 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). It is well settled that evidence is inadmissible hearsay if its probative value depends on the truth of any assertion of fact it contains or on the credibility of someone not available for contemporaneous cross-examination, and if it does not fall within one of the exceptions to the hearsay rule.
The theory of the hearsay rule ... is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference....
6 Wigmore, Evidence § 1766 (1976). Thus, when an utterance is used for the truth it asserts, its reliability is generally considered suspect unless the declarant is testifying in court and available for cross-examination. The declarant's availability is critical because his credibility determines the reliability of the inferential journey one necessarily takes from the declarant's utterance to the ultimate fact it is alleged to reflect. Tribe Triangulating Hearsay, 87 Harv.L.Rev. 957, 958 (1974).
Allowing a jury to draw inferences from an out-of-court statement admitted for the truth of a fact it asserts when the declarant is not available for cross-examination can lead to inaccuracies. One potential error involves ambiguity. The statement may have more than one meaning, and the declarant may have intended the statement to assert a fact other than that for which the statement is offered, or for which a jury considers it in determining the guilt or innocence of the defendant. The declarant's presence would be essential to eliminate such ambiguity. E. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 177-78 (1948).
Other potential errors concern the sincerity, perception and memory of the declarant. Without the declarant's availability for in-court cross-examination at the time his testimony is offered to prove a fact asserted, opposing counsel could not effectively represent his client by bringing out possible sources of error and gaps in his opponent's logic or in the ultimate inferences which his opponent seeks to draw. Moreover, though the jury is advised of the declarant's statement, the jury would be unable to hear and observe the absent declarant as a witness and therefore evaluate the declarant's demeanor. Thus, the leading authority on evidence concludes:
The hearsay rule forbids merely the use of an extrajudicial utterance as an assertion to evidence the fact asserted (§ 1766, supra ). Such a use would be testimonial, i.e., we should be asked to believe the fact because Doe asserted it to be true, precisely as we should be asked to believe Doe's similar assertion if made on the stand. What the hearsay rule forbids ... is the use of testimonial evidence--i.e., assertions--uttered not under cross-examination.
Out-of-court statements are not always hearsay. Thus, the Federal Rules of Evidence explain that "[i]f the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay." Fed.R.Evid. 801(c) advisory committee note. The potential problems of hearsay discussed above are avoided because one would be interested only in the fact that a statement was made. Its probative value would depend on the witness testifying to what he heard, and, as such a witness, he would be subject to cross-examination. The problems of ambiguity, sincerity, memory or perception associated with hearsay are not present because we are concerned with the witness' account of what he heard, not the truth of what the declarant said.
Assume, for example, that the very fact in controversy was whether there was speech. The witness' testimony as to "the fact of [Reynolds' statement, "I didn't tell them anything about you"] rather than the content of the statement permits the inference [that there was speech] and that testimony involves no problem of the statement's ambiguity, or of sincerity, memory, or perception" of the declarant. Tribe, supra at 960-61. The reason is that it is the witness' personal experience that is the focus of the inquiry. Similarly, testimony recounting the above statement would qualify as non-hearsay if offered on the issue as to whether the declarant was capable of speaking English. Whether the content of the declarant's...
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