U.S. v. Stipe
| Decision Date | 01 July 1981 |
| Docket Number | No. 81-1417,81-1417 |
| Citation | 653 F.2d 446 |
| Parties | 8 Fed. R. Evid. Serv. 668 UNITED STATES of America, Plaintiff-Appellant, v. Gene STIPE and Red Ivy, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Larry D. Patton, U. S. Atty., Oklahoma City, Okl. (John R. Osgood, Asst. U. S. Atty., Oklahoma City, Okl., with him on the brief) for plaintiff-appellant.
B. J. Rothbaum, Jr., Oklahoma City, Okl. (James P. Linn, James A. Kirk, Drew Neville of Linn, Helms, Kirk & Burkett, and Duane H. Miller, Oklahoma City, Okl., with him on the brief) for defendants-appellees.
Before McWILLIAMS and DOYLE, Circuit Judges, and KERR *, Senior District Judge.
This is an expedited interlocutory appeal which has been prosecuted pursuant to 18 U.S.C. § 3731, entitled Appeal by the United States. It provides in part as follows:
An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.
The motion of the government which has led to this controversy was entitled Motion of the United States In Re: Order of Proof of a Conspiracy and Admissible Evidence Relating Thereto. In this motion the government sought a number of advance rulings as to order of proof which would govern at trial and evidence which would be tendered during the course of the trial. Thus, the government sought to have what might be called a dry run prior to trial, together with appeal of rulings which it considered to be unfavorable with respect to the order of proof in a conspiracy case and the meaning of "independent evidence," together with admissibility of post conspiracy statements of defendant Ivy. After extensive hearings the trial court ruled against the government. It determined generally that the request of the government that an informal order of proof be established, that conditional rulings be made as to admissibility of hearsay evidence and that a pre-trial determination be made that the defendants were members of the conspiracy be rejected.
An extensive hearing was held. It was in the form of extended statements and arguments of counsel together with responses from Judge West.
The emphasis throughout was on the design of the order of proof, i. e. whether independent evidence was to be used to first establish the existence of the conspiracy. The government, of course, sought modifications of the preferred order of proof procedure and the deferral of statements of the co-conspirators. The trial court expressed approval of the preferred order approach. The court did not, however, express views as to admissibility or non-admissibility of particular evidence. Nor was there a projection by the government of particular evidence or a request made for rulings on any such tendered testimony.
The government did seek rulings on the admissibility of tape recorded conversations of the defendants. The effort was to gain admission of these tapes prior to fully establishing (through independent evidence) the conspiracy. Judge West listened to the tapes. The government finally did consent to one limitation on the admissibility. Those parts of the tapes which contained statements of one of the defendants concerning the other which was inculpatory of him would be excluded. This was the closest that the government came to formulating facts in quest of a specific ruling. The trial court, after hearing the tapes, stated that the ruling would be the same. This was shortly before the court learned that a stay pending appeal by this court had been granted. The court's statement reads as follows:
THE COURT: I'm going to stand by my order. There is nothing that I feel that is left unexplained that can't be properly pinpointed or focused on in the context of the trial based upon the predicate laid by the Government as I have outlined they're required to do.
Now, you can't The Court's not in a position to anticipate just because it would be convenient to have a pretrial ruling on every item of evidence that they intend to introduce, and I submit to you that there is no reason why the Court should undertake to do that.
The government's supplemental statement which was contained in a brief submitted to the trial court contained a very brief statement of evidence. This, however, continued on a highly vague basis. The exact evidentiary questions were not specified, nor were there particular statements capable of providing a basis for a ruling. Moreover, there was no specific request for an evidentiary ruling or hearing. The extreme brevity of the statement was insufficient to provide any basis for ruling and no such rulings were requested.
An alternative governmental proposal was that there be a mini-trial to the court following which the government could present its case to the jury. This was also rejected.
The trial court noted that a statement of a co-conspirator is not hearsay under Rule 801 of the Evidence Rules because of the vicarious nature of the co-conspirator relationship. It is a criminal partnership. Due to the relationship the statements of co-conspirators made outside of the presence of another co-conspirator are admissible. Statements of co-conspirators do not prove the conspiracy. Independent evidence is necessary to accomplish this. See United States v. Nixon, 418 U.S. 683 at 701, 94 S.Ct. 3090 at 3104, 41 L.Ed.2d 1039 (1974). See also, Krulewatch v. United States, 336 U.S. 440, 446, 453, 69 S.Ct. 716, 719, 723, 93 L.Ed. 930.
Our decision in United States v. Andrews, 585 F.2d 961 (10th Cir. 1978) was cited by the trial court as holding that acts and declarations of co-conspirators are admissible against another if a conspiracy is first established by independent evidence. 585 F.2d at 964. This has been the law for many years but it has not been strictly enforced. In days past the jury participated in the admission and consideration of statements of co-conspirators. See Andrews, supra.
In United States v. Petersen, 611 F.2d 1313, 1333 (10th Cir. 1979) this court took a further step. It established...
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...he would have no idea why the conspirator made the statement. See United States v. Stipe, 517 F.Supp. 867, 871 (WD Okla.), aff'd, 653 F.2d 446 (CA10 1981) ("The dangers that an accused may be confronted with numerous statements made by someone else which he never authorized, intended, or ev......
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