U.S. v. Ricks

• Decision Date: 19 March 1981
• Docket Number: No. 79-5728,79-5728
• Parties: 7 Fed. R. Evid. Serv. 1760 UNITED STATES of America, Plaintiff-Appellee, v. James W. RICKS, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1305

639 F.2d 1305

7 Fed. R. Evid. Serv. 1760

UNITED STATES of America, Plaintiff-Appellee, v. James W. RICKS, Defendant-Appellant.

No. 79-5728.

United States Court of Appeals, Fifth Circuit.

Unit B

March 19, 1981.

Oliver Harris Doss, Blue Ridge, Ga., W. Courtney LaFon, Roswell, Ga., for defendant-appellant.

Denver L. Rampey, Jr., U. S. Atty., Macon, Ga., John C. Winkfield, Robert J. Erickson, Attys., Crim. Div., Appellate Sec., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before GODBOLD, Chief Judge, and TUTTLE and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

James Ricks appeals a jury conviction for conspiracy to possess with intent to distribute approximately 1,000 pounds of marijuana. 21 U.S.C. §§ 841(a)(1) and 846. He raises the following arguments:

1. The trial court violated Federal Rule of Criminal Procedure 32 in ruling that a presentence investigation report was unnecessary.

2. The trial court erred in relying on previous trial testimony from a separate defendant's trial in making its determination that the extra-jury hearing said to be mandated by United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc), need not be held.

3. The prosecutor improperly insinuated personal knowledge of the defendant's guilt, thereby causing the defendant substantial prejudice.

4. The trial court failed to advise the defendant of his right to take this appeal.

5. The trial court erred in denying defendant's motion for change of venue. He argues this motion should have been granted because of prejudicial, pre-trial publicity.

See Defendant's Brief, at 9, 13, 16, 19, 21. The appellant does not challenge the sufficiency of the evidence to convict him. We turn first to appellant's second contention, in part to clarify the requirements of United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc).

I. The History and Holding of James

When a witness offers to testify as to what some other person has said, out of court, that offer is questionable under rules of evidence excluding hearsay. However what has been said by one who has been a conspirator with the defendant, during and in furtherance of the conspiracy is, by definition, not hearsay. Fed.R.Evid. 801(d)(2)(E).

Therefore, the predicate for the admission of such a statement is that a conspiracy existed; that the coconspirator and the defendant against whom the coconspirator's statement is offered were members of the conspiracy; and that the statement was made during the course and in furtherance of the conspiracy. 590 F.2d at 581.

The burden of proving this necessary predicate is upon the party offering the statement in evidence. Here, and in almost all conceivable situations, that burden is upon the government. The burden is to prove the predicate facts.

Until 1978, our circuit placed the predicate fact finding duty upon the jury and appeared to require the jury to require for proof of the predicate facts the same proof beyond a reasonable doubt as required for all other proof of guilt in a criminal case. United States v. Apollo, 476 F.2d 156 (5th Cir. 1973).

On July 20, 1978 a panel of this court released its opinion in United States v. James, 576 F.2d 1121 (5th Cir. 1978). The court held that the responsibility of determining whether or not the predicate facts have been proved rests upon the trial judge who is to make that finding based upon his determination as to where a preponderance of the evidence lies. The panel also held that the judge could not allow the jury to hear a coconspirator's declaration until he had determined admissibility by a preponderance of the evidence. Thus, the panel required the government to develop its proof of the predicate facts before tendering a coconspirator statement or make such proof at an extra-jury hearing. 576 F.2d at 1131.

Subsequently, the panel's opinion was modified. United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc). The ultimate teaching, however, remained unchanged: when all evidence on the issue has been received, considered and weighed, and it appears from a preponderance of the evidence that the predicate facts exist, there is no error in the admission of the statements of coconspirators. 590 F.2d at 582.

As had the panel, the en banc court recognized dangers to fair trial that might exist in dealing with statements of alleged coconspirators and announced some preference as to how trial procedures might be structured to guard against those dangers. To reveal to the jury what someone has said, out of court, incriminating the defendant is strong medicine. Should such a revelation be made and it then appear that no facts existed justifying the revelation, the defendant would have been unlawfully and most seriously prejudiced. The waste of mistrial would be likely; restoration of fairness through corrective instruction would be difficult if possible at all.

The en banc court fashioned the following response to these concerns. It held that a trial judge should not admit proof of such out of court statements unless he finds substantial, independent evidence of the predicate facts, at least enough to take the question to the fact finder. Id. at 581. The en banc court instructed:

Both because of the 'danger' to the defendant if the statement is not connected and because of the inevitable serious waste of time, energy and efficiency when a mistrial is required in order to obviate such danger, we conclude that the present procedure warrants the statement of a preferred order of proof in such a case. The district court should, whenever reasonably practicable, require the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of a coconspirator. If it determines it is not reasonably practical to require the showing to be made before admitting the evidence, the court may admit the statement subject to being connected up.

Id. at 582.

By following these instructions, trial judges can avoid some of the dangers. It can readily be seen, however, that even this order of proof is not fool proof. It requires the government to show that it has substantial, independent evidence of the predicate facts before the statements are disclosed to the jury. There remains the possibility, that when the judge has heard all the evidence, including the defendant's, the greater weight of the evidence the preponderance will be found to support the proposition that the predicate facts do not exist.

It appears from records that have come to us that district judges have often been more careful than mandated by our preferred order of proof. They have, on a number of occasions, employed a pre-trial, extra-jury hearing to ascertain the evidence available on the existence of the predicate facts. To comprehend fully the utilization of this hearing procedure, which has become known as a "James hearing," we must again refer to the panel decision. 576 F.2d 1121.

In the panel opinion, the court declared:

Therefore, we hold that, under Rule 104(c), justice requires that the determination of the admissibility of coconspirators' declarations and any hearings necessary for the judge to make that determination by a preponderance of the evidence be conducted outside the presence of the jury.

576 F.2d at 1132 (emphasis added).

A determination of where the preponderance lies requires a measuring and weighing of all the evidence, pro and con. Therefore, before commencing the taking of evidence in the presence of the jury, district judges felt compelled to hear all evidence on the existence, vel non, of the predicate facts in a pre-trial hearing at the conclusion of which the judge could rule upon the admissibility of the tendered coconspirators' declarations according to his determination of preponderance. Thus did the term "James hearing" enter the legal lexicon.

Although the en banc court did not mandate such a hearing outside the presence of the jury, we did not forbid that procedure. Indeed, it has at least two distinct advantages. A full hearing of all the evidence by the judge alone touching upon the issue which the judge alone is to decide is the best assurance that prejudicial hearsay will not be taken, inadvertently, before the jury. Following our preferred order of proof during jury trial can be clumsy. Often, witnesses to the existence of the predicate facts are also witnesses to the statements sought to be presented. Taking evidence from all witnesses to the predicate facts before introducing the statements, the admissibility of which depends upon those facts, can require more than one trip to the witness stand by several witnesses shuttling into and out of the courtroom.

It appears that trial judges in this circuit are continuing to make use of pre-trial,...