U.S. v. Snyder

• Citation: 872 F.2d 1351
• Decision Date: 28 April 1989
• Docket Number: No. 88-1091,88-1091
• Parties: 27 Fed. R. Evid. Serv. 1328 UNITED STATES of America, Plaintiff-Appellee, v. Robert J. SNYDER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1351

872 F.2d 1351

27 Fed. R. Evid. Serv. 1328

UNITED STATES of America, Plaintiff-Appellee, v. Robert J. SNYDER, Defendant-Appellant.

No. 88-1091.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1988.

Decided April 28, 1989.

Stephen G. Kehoe, Nisen & Elliott, Chicago, Ill., for defendant-appellant.

Laura Jones, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before CUMMINGS and EASTERBROOK, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Defendant-appellant Robert Snyder appeals his conviction on four counts of a forty count indictment charging him with violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1952(a), 1961, 1962(d), and 1963, and the Controlled Substances Act, 21 U.S.C. Sec. 841(a)(1). The indictment was returned on November 13, 1980, and alleges in Count 1 that Snyder and several other named defendants conspired and formed a drug-smuggling enterprise known as "the Company"; that Snyder was in charge of internal security for the Company; that he conducted polygraph examinations to detect disloyalty within the Company; that he intimidated prospective witnesses; and, that he issued two "contracts" to murder "business associates" of the Company. The indictment specifically alleges that in early 1977, in the Eastern District of Kentucky, Snyder paid Larry Barton $10,000 to murder a person known as "Big Red" of the East St. Louis, Illinois area; and that on or about July of 1978, in the Northern District of Georgia, Snyder paid Barton $15,000 to murder William Wade Hampton. Snyder was also charged and convicted under Counts 3 and 4 of the indictment with interstate travel in aid of racketeering in violation of 18 U.S.C. Sec. 1952(2); and in Count 29 with possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).

In June 1979, the government called Larry Barton to testify before a grand jury regarding his affiliation with Snyder and the Company. At the time, Barton was serving two concurrent life sentences for solicitation to commit the murder of William Hampton. In return for his testimony, the government agreed to arrange Barton's transfer to a federal penitentiary. During the course of his testimony before the grand jury, Barton stated that he first met Snyder in 1975 in St. Petersburg, Florida where Snyder was the polygraph examiner for a pornography organization; that in March or April of 1976, Snyder hired him to "shotgun" ¹ $250,000 to Miami; that Snyder gave him $10,000 to murder an East St. Louis, Illinois man known as "Big Red" who had been "ripping off the Company"; that Snyder asked him to acquire automatic weapons for the Company; and that Snyder paid him $15,000 in July 1978 to murder William Hampton. Barton also testified that between 1976 and the middle part of 1977 Snyder made at least six trips to South America carrying large sums of money, and that the Company and Snyder had become involved in "coke" and "the hard stuff" as well as marijuana.

Authorities were unable to locate Snyder for a period of six years following his indictment. Finally, in November 1986, Snyder turned himself in, and he was tried a year later. Unfortunately for the government, Barton died in prison on April 19, 1987, seven months before trial. Barton's testimony was the only direct evidence the government had at the time linking Snyder to the two overt acts charged in Count 1 of the indictment (the contracts on "Big Red" and William "Wade" Hampton), and was vital to the government's case against Snyder. Having no alternative, the government sought to introduce the transcript of Barton's grand jury testimony at trial.

The record discloses that defense counsel's only objection to the admission of the transcript was that it did not fit within one of the exceptions for out-of-court statements or for hearsay under Fed.R.Evid. 804(b). Counsel maintained that Barton's testimony was not against penal interest where he was already serving two concurrent life sentences. He further argued that there were insufficient guaranties of trustworthiness to warrant admission under Rule 804(b)(5) where the testimony was uncorroborated and not subject to cross-examination.

The district court made a preliminary finding that Barton's grand jury testimony was admissible under Fed.R.Evid. 804(b)(5) as the testimony was given under oath before a grand jury, was more probative than any other evidence, and best served the general purposes of the rules of evidence and the interest of justice. The district court thereafter afforded counsel the opportunity to object to specific portions of the transcript. That invitation was rejected by counsel, stating "that if any part of it is allowed in, then I think it succeeds in bringing it all in, and I would not want to have it cut up...."

The government also introduced, without objection, evidence from co-conspirators, William Hampton, Richard Larson, Richard Thorp, and from two other witnesses concerning Snyder's involvement, either before or after his affiliation with the Company, in other illegal drug-smuggling operations and in a pornography organization.

When Snyder took the stand in his own defense, he testified that his involvement with the Company was at the direction of a now deceased federal drug enforcement agent named Harold Brown, as a government informant. While he denounced Barton as a "criminal" and a liar, he acknowledged that Richard Thorp had asked him to hire someone to murder William Hampton; that Thorp had given him $20,000 for the job; and, that he paid Barton $15,000 to murder Hampton. Snyder, however, stated that he told Barton to wait until he received further word before taking any action and that he never gave that final word. Snyder denied any knowledge of the "Big Red" contract.

At the conclusion of the evidence, a guilty verdict was returned against Snyder on Counts 1, 3, 4 and 29. He was acquitted on all remaining Counts.

Snyder challenges his conviction on the following grounds: (1) the district court erred in admitting Barton's grand jury testimony; (2) the district court erred in admitting evidence of other crimes, wrongs or acts under Fed.R.Evid. 404(b) without sua sponte undertaking an analysis under Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) and United States v. Shackleford, 738 F.2d 776 (7th Cir.1984); and, (3) he was deprived of his Sixth Amendment right to effective assistance of counsel, by counsel's continued failure to object to prejudicial evidence.

BARTON'S GRAND JURY TESTIMONY

Snyder challenges the admission of Barton's grand jury testimony under both Fed.R.Evid. 804(b)(5) and the Confrontation Clause of the Sixth Amendment. While we review the district court's ruling under Rule 804(b)(5) for an abuse of discretion, United States v. Fuesting, 845 F.2d 664, 673 (7th Cir.1988), our review of the constitutional issue is limited by the strict standards of the plain error doctrine, as this issue was apparently raised for the first time on appeal. United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988); United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985). ²

The parties do not dispute that under appropriate circumstances, the grand jury testimony of an unavailable witness may be admitted at trial as substantive evidence of a defendant's guilt without violating the Federal Rules of Evidence or the Confrontation Clause of the Sixth Amendment. See, i.e., United States v. Guinan, 836 F.2d 350, 353-58 (7th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2871, 101 L.Ed.2d 907 (1988); United States v. Marchini, 797 F.2d 759, 762-65 (9th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1288, 94 L.Ed.2d 145 (1987); United States v. Barlow, 693 F.2d 954, 960-65 (6th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983); United States v. Boulahanis, 677 F.2d 586, 588-89 (7th Cir.), cert. denied, 459 U.S. 1016, 103 S.Ct. 375, 74 L.Ed.2d 509 (1982); United States v. Garner, 574 F.2d 1141, 1143-46 (4th Cir.), cert. denied sub nom. McKethan v. United States, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978); United States v. West, 574 F.2d 1131, 1134-38 (4th Cir.1978).

In this circuit, such testimony is admissible, if at all, only under the stringent standards of Fed.R.Evid. 804(b)(5), the catch-all hearsay exception. Boulahanis, 677 F.2d at 588. To be admissible under Rule 804(b)(5), the statement must contain "circumstantial guarantees of trustworthiness" equivalent to those inherent in the more specific exceptions provided under Rule 804(b)(1)-(4). ³ To overcome the obstacles of a Sixth Amendment challenge, the statement must also contain "adequate 'indicia of reliability.' " Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); see also Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219-20, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936-37, 26 L.Ed.2d 489 (1970). The standards are similar, yet distinct, see Guinan, 836 F.2d at 358; Marchini, 797 F.2d at 764; United States v. Feldman, 761 F.2d 380, 387 (7th Cir.1985); Barlow, 693 F.2d at 964, and reliability may not be inferred under a Sixth Amendment analysis merely because the prior testimony is admissible under Rule 804(b)(5). Marchini, 797 F.2d at 764; Barlow, 693 F.2d at 964; West, 574 F.2d at 1137 and n. 7. The proponent of the evidence, however, can overcome a Sixth Amendment challenge if it can show that the testimony was given under circumstances which "indicate that its content is probably true," Boulahanis, 677 F.2d at 589; West, 574 F.2d at 1137, and which provide the jury with a sufficient basis for judging its truthfulness. Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2539; Mancussi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d...