U.S. v. Seavoy, s. 92-1894
| Decision Date | 15 June 1993 |
| Docket Number | Nos. 92-1894,92-2132,s. 92-1894 |
| Citation | 995 F.2d 1414 |
| Parties | 38 Fed. R. Evid. Serv. 85 UNITED STATES of America, Plaintiff-Appellee, v. Ronald SEAVOY and Robert M. Seavoy, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Steven M. Biskupic, Asst. U.S. Atty., Milwaukee, WI (argued), for U.S.
Paul Barrett, Elkhorn, WI (argued), for Ronald Seavoy.
Daniel D. Resheter, Jr., Milwaukee, WI (argued), for Robert M. Seavoy.
Before CUMMINGS and COFFEY, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
Robert and Ronald Seavoy were each indicted on one count of aggravated bank robbery in violation of 18 U.S.C. §§ 2 and 2113(a), (d). Ronald Seavoy was indicted on a second count for use of a firearm during a crime of violence in violation of 18 U.S.C. §§ 2 and 924(c). Robert Seavoy entered a plea of guilty; thereafter, the district court enhanced his sentence four levels under the United States Sentencing Guidelines ("U.S.S.G.") § 2B3.1(b)(2) for using a firearm during the bank robbery, and sentenced him to 97 months imprisonment. A jury convicted Ronald Seavoy on the armed robbery count and the use of a firearm count and the court sentenced him to consecutive terms of 78 months and 60 months imprisonment respectively. Robert Seavoy appeals the district court's denial of his motion to withdraw his guilty plea as well as his four-level sentence enhancement under § 2B3.1(b)(2). Ronald Seavoy appeals the admission of Robert's change of plea hearing testimony at his trial. We affirm.
On August 19, 1991, brothers Ronald and Robert Seavoy met at a Days Inn motel in Green Bay, Wisconsin, to plan the robbery of Bank North in Pembine, Wisconsin. At this time, Robert Seavoy was residing in Lake City, Florida and Ronald's residence was in Marquette, Michigan. Robert Seavoy checked out of the Days Inn motel on August 20, 1991, at roughly 8:10 a.m. and drove his Dodge truck to meet his brother Ronald at a pre-arranged meeting place in the woods approximately one mile from Bank North. Ronald drove his Volkswagen Sirocco to the meeting place and stripped the vehicle identification number ("VIN") from the auto. At trial, Ronald claimed that he had sold his Volkswagen to an unknown purchaser three days before the robbery. However, Mary Sikkila, the girlfriend of one of Ronald's brothers, Dean Seavoy, testified she saw Ronald driving the Volkswagen two days prior to the robbery. The Seavoy brothers drove in Ronald's Volkswagen to Bank North and entered the bank at approximately 10:20 a.m. At that time, both Robert and Ronald were armed with firearms and ordered the Bank North employees and customers to lie face down on the floor. Roxanne DeLaet, a loan officer at Bank North, testified that one robber, about 5'10"' and weighing approximately 165 pounds with a nylon mask over his face, came into her office where she was meeting with a customer, pointed a gun at her, and ordered her to come out of her office and lay down on the floor. DeLaet complied with the order and lay face down on the floor. She stated that her customer also departed from the office and lay on the floor with the other employees and customers.
Shirley Hanneman, a bank teller, testified that she observed one of the robbers meet Theresa Kerry, a bank employee, returning with the mail, at the bank's back door because the robber apparently heard the door lock turning. Hanneman stated that she watched this robber point a gun at Kerry and order her to lay down on the floor. Hanneman testified that she overheard the robber matching Ronald's description ask where the key to the vault was kept and one robber stated to the other, "They don't have a key, Bob." She further stated that she heard the robber referred to as "Bob" respond, "Put a bullet in one of them and then they will remember." DeLaet testified that she told Kerry to produce the vault key and watched as Kerry followed DeLaet's instruction and opened the bank's vault. Robert and Ronald Seavoy took some $83,870 from Bank North. During the robbery, the bank's video cameras recorded the robbers pointing their guns at the bank's customers and employees and directing them to lie face down on the floor. The Seavoy brothers exited the bank and drove Ronald's Volkswagen approximately one mile into the woods where Robert's truck was parked. After setting the Volkswagen on fire, they drove off in Robert's truck.
Within fifteen minutes of the robbery, a deputy sheriff discovered the burning Volkswagen. Although the Volkswagen had been destroyed and the VIN number had been stripped, deputy sheriffs traced the Volkswagen's ownership through the vehicle's hidden VIN number to Robert John Seavoy, the father of Robert and Ronald Seavoy. At trial, Ronald admitted to ownership of the Volkswagen, but stated the car's title was in his father's name.
Two weeks following the armed robbery on September 3, 1991, Robert was arrested in Bogalusa, Louisiana. In Robert's possession, the law enforcement officers found a 9 mm. handgun and $27,952 cash, of which 51 bills matched Bank North's "bait bill list" of money stolen during the August 20, 1991 robbery. Robert Seavoy was indicted on one count of aggravated bank robbery. Initially he pleaded not guilty and offered an alibi defense, but later changed his plea to guilty pursuant to a written plea agreement. In the plea agreement, Robert Seavoy agreed to testify truthfully and completely about the bank robbery at Ronald Seavoy's trial in return for the government recommending a two-level reduction in his sentence for acceptance of responsibility under U.S.S.G. § 3E1.1. The government further agreed to request that the court refrain from enhancing his sentence under § 3C1.1 for obstruction of justice. A guilty plea hearing was held on November 26, 1991 at which Robert testified that he and his brother Ronald robbed Bank North on August 20, 1991, and described in detail how he and his brother entered the bank with face masks on, displayed their weapons, forced the tellers to hand over money, and took cash from the teller drawers. Robert stated that after he and Ronald exited the bank, they drove in the Volkswagen to Robert's truck which was parked in the woods approximately one mile from the bank. Robert testified that he and his brother set the Volkswagen on fire and drove off in Robert's truck. On May 1, 1992, the district court sentenced Robert Seavoy to 97 months imprisonment.
On February 11, 1992, Robert Seavoy refused to testify at Ronald's trial, asserting his rights against self-incrimination under the Fifth Amendment and stating that he would be filing a motion to withdraw his earlier plea of guilty and advancing an alibi defense. On February 21, 1992, Robert filed the motion to withdraw his plea of guilty which the district court denied on March 16, 1992. As a result of Robert's refusal to testify at Ronald's trial, the United States sought to admit the transcript of Robert's testimony from his November 26, 1991 change-of-plea-hearing under Fed.R.Evid. 804(b)(5) to demonstrate that Robert and Ronald Seavoy robbed Bank North on August 20, 1991. The district court admitted the transcript under Fed.R.Evid. 804(b)(5). On February 14, 1992, the jury found Ronald Seavoy guilty of aggravated bank robbery and of using a firearm during a crime of violence.
Ronald Seavoy argues that his case should be remanded for a new trial because Robert's hearsay statements were improperly admitted under Fed.R.Evid. 804(b)(5) and because the admission of this testimony violated his (Ronald's) right to confrontation under the Sixth Amendment. Robert Seavoy argues the district court abused its discretion in denying his motion to withdraw his plea of guilty and erred in enhancing his sentence four levels under Sentencing Guidelines § 2B3.1(b)(2) for using a firearm during the bank robbery.
Ronald Seavoy argues that the district court abused its discretion in admitting the transcript from Robert's change of plea hearing under Fed.R.Evid. 804(b)(5) because Robert's hearsay statements failed to possess the necessary "circumstantial guarantees of trustworthiness." 1 United States v. Harty, 930 F.2d 1257, 1263-64 (7th Cir.), cert. denied Gurgone v. United States, --- U.S. ----, 112 S.Ct. 262, 116 L.Ed.2d 215 (1991); United States v. Doerr, 886 F.2d 944, 954-55 (7th Cir.1989). We review a district court's rulings on the admissibility of evidence under an abuse of discretion standard. United States v. Kladouris, 964 F.2d 658, 663 (7th Cir.1992). "In order for a hearsay statement to be admissible under Rule 804(b)(5), the proponent of the statements must show that the declarant is unavailable and that the statement contains 'circumstantial guarantees of trustworthiness equivalent to those inherent in the more specific exceptions provided under Rule 804(b)(1)-(4).' " Doerr, 886 F.2d at 954 (quoting United States v. Snyder, 872 F.2d 1351, 1354 (1989)). We have recognized that the district court is afforded considerable discretion in its rulings on "whether the hearsay statements contain the necessary circumstantial guarantees of trustworthiness." Kladouris, 964 F.2d at 663 (quoting United States v. Vretta, 790 F.2d 651, 659 (7th Cir.), cert. denied, 479 U.S. 851, 107 S.Ct. 179, 93 L.Ed.2d 115 (1986)). Ronald concedes that his brother Robert was unavailable to testify. Therefore, we turn to the question of whether Robert's testimony had sufficient guarantees of trustworthiness to be admitted under Rule 804(b)(5). In Doerr, we enumerated seven factors that should be considered in determining whether hearsay testimony has sufficient guarantees of trustworthiness:
" the character of the witness for truthfulness and honesty, and the availability of evidence on the issue; whether the testimony was given voluntarily, under...
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