U.S. v. Szabo

• Decision Date: 12 May 1986
• Docket Number: No. 85-1686,85-1686
• Citation: 789 F.2d 1484
• Parties: 20 Fed. R. Evid. Serv. 1048 UNITED STATES of America, Plaintiff-Appellee, v. Laszlo SZABO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1484

789 F.2d 1484

20 Fed. R. Evid. Serv. 1048

UNITED STATES of America, Plaintiff-Appellee, v. Laszlo SZABO, Defendant-Appellant.

No. 85-1686.

United States Court of Appeals Tenth Circuit.

May 12, 1986.

Robert N. Miller, U.S. Atty., and Raymond P. Moore, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.

Richard W. Bryans, Denver, Colo., and Michael F. Morrissey, Denver, Colo., for defendant-appellant.

Before McKAY, ANDERSON and TACHA, Circuit Judges.

ANDERSON, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 10(e). The cause is therefore submitted without oral argument.

The defendant, Laszlo Szabo, appeals his conviction by a jury on one count of interstate transportation of falsely made checks, in violation of 18 U.S.C. Sec. 2314 (1982), and one count of conspiracy to commit such offenses, in violation of 18 U.S.C. Sec. 371 (1982). He contends his confrontation rights under the Sixth Amendment were violated when the trial judge allowed a coconspirator to give damaging testimony against the defendant at trial without first holding a hearing to determine if the anticipated testimony bore adequate "indicia of reliability." We conclude that no error was committed, and affirm.

The disputed testimony in this case was given at trial by Burton Vishno, who admitted to involving the defendant in a scheme to negotiate bogus certified checks. Vishno testified that he was introduced to the defendant in late 1982 while the latter was in New Haven, Connecticut. Among other things, the two of them discussed financing for a racetrack defendant wanted to establish in Colorado. Vishno told the defendant that he had a source who could provide falsely certified checks for fifty percent of the face value. Defendant requested such a check in the amount of $20,000 and asked that it be made payable to his company, Great American Financial, Inc. Thereafter, Vishno obtained the check from his source, "Tommy" Gamble, and delivered it to defendant at his office in Denver, Colorado, on January 10, 1983. Two days later defendant paid Vishno $6,000. By other testimony, it was established that defendant had deposited the $20,000 to his business account and made use of the funds.

Over the next two weeks, additional parties were introduced into the scheme by defendant. Daniel Powers, Glen Dial and Michael Allred, later charged as co-defendants, and Timothy Watts, (collectively referred to by defendant as his "wrecking crew," R. Vol.IV, at 26), met with Vishno upon defendant's initiative. The initial meetings of Dial and Watts with Vishno were in defendant's presence. Vishno's first contact with Powers was from a telephone in defendant's office, in defendant's presence, and at his instance. Vishno then testified to a number of subsequent meetings with the various individuals at which the unlawful scheme was discussed and substantially pursued. The defendant was present at some, but not all, of the meetings.

To facilitate the expected additional transactions, Vishno's source, Gamble, and Gamble's associate, Vincent Edo, came to Denver and established themselves at the hotel where Vishno was staying. At various times during this several day period, and upon the request of each recipient, falsely certified checks were obtained from Gamble by Vishno and delivered as follows: a check for $500,000 to Powers; a check for $300,000 to Allred and Dial; and three checks in the respective amounts of $100,000, $100,000, and $50,000 to Watts.

Watts, Vishno, Gamble, and Edo then left town. They met again in Philadelphia approximately one week later to divide the proceeds of checks Watts had cashed in Baltimore, Maryland, and were arrested by the F.B.I.

After Vishno had testified to the foregoing, a bench conference was requested by the government. Here, the government advised that it intended to elicit some coconspirator statements from Vishno for the first time. The court responded that it would receive such testimony conditionally and reserve ruling on admissibility under Fed.R.Evid. 801(d)(2)(E) until the close of the government's case. Defendant was granted a continuing objection to the hearsay nature of the proposed coconspirator statements. Thereafter, the government elicited three brief instances of coconspirator statements which added some detail to the previous testimony of Vishno. The only reference made to the defendant in those statements was to identify him as being present during one of the conversations in question. It was established that the defendant was not present at another conversation which was described.

The coconspirator statements were fully received at the close of the government's case after the court had heard testimony from F.B.I. agents and other witnesses, both corroborating Vishno's testimony and independently establishing defendant's unlawful activities. The court's finding of admissibility under Fed.R.Evid. 801(d)(2)(E) (inclusive of the necessary quantum of proof, and the following required elements: independent evidence, membership, during the course, and in furtherance of the conspiracy) is clearly supported by the record. It is not an issue on this appeal. See United States v. Pilling, 721 F.2d 286 (10th Cir.1983); United States v. DuFriend, 691 F.2d 948 (10th Cir.1982), cert. denied, 459 U.S. 1173, 103 S.Ct. 820, 74 L.Ed.2d 1017 (1983); United States v. Petersen, 611 F.2d 1313 (10th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2986, 64 L.Ed.2d 854 (1980). In fact, much of what defendant argues on appeal is based on his premise that the Rule does apply. ¹

Anticipating the damaging nature of Vishno's testimony, defendant's counsel filed a motion in limine prior to trial asking that the court:

[D]etermine that the witness Vishno's, (sic) statements are crucial and devastating, and whether or not there are any particularized guarantees of trustworthiness. In the event the government fails to demonstrate both of the above and foregoing, the statements be held inadmissable at the trial of the defendant Szabo.

R. Vol. I, at 12. The grounds stated in support of the requested relief were:

"1. That the witness Vishno's, testimony against the defendant Szabo, spoken as a co-conspirator, was both crucial and devastating to the defendant, Szabo.

"2. Albeit the government may have established a conspiracy which the defendant does not confess, there was insufficient showing, in fact no showing, of any guarantees of trustworthiness as required by law and F.R.E. Rule 801(b)(2)(e) (sic).

"3. That the witness Vishno, is a convicted felon who has, through arrangements made with the government, avoided trial of at least two additional felonies and is currently awaiting sentence.

"4. That the statements of the witness Vishno, have no indicia of reliability and do not provide the functional equivalent of cross-examination.

"5. That the government must be required to demonstrate why the witness Vishno's, statement has any particularized guarantee of trustworthiness."

R. Vol. I, at 11.

In arguing his motion to the trial judge, counsel for the defendant summed up his position as follows:

So, that is the purpose of this. Primarily, we feel that Vishno's testimony, merely because it comes in under the Rule, is not trustworthy, and the trustworthiness is one of the prongs that is set forth in citations (sic) of authorities that must be met.

R. Vol. IV, at 3.

The motion in limine was denied. Even assuming a Sixth Amendment issue was raised in that motion, defense counsel made no further objection at any time during trial on stated constitutional grounds. "Ordinarily, a confrontation clause objection cannot be raised on appeal unless it was also raised sometime during the trial court proceedings." United States v. Roberts, 583 F.2d 1173, 1175 (10th Cir.1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 49 (1979) (citing Nolan v. United States, 423 F.2d 1031, 1041 (10th Cir.1969), cert. denied, 400 U.S. 848, 91 S.Ct. 47, 27 L.Ed.2d 85 (1970)). The government has argued defendant's lack of proper and timely objection below (Brief of Appellee at 11). However, in view of the fact that a violation of an important constitutional right is alleged, and that the constitutional issue was at least arguably raised at one time during the proceedings below, by way of the motion in limine, we elect to exercise our discretion in favor of review.

Because defendant's arguments reflect a lack of clarity on the point, we note at the outset that the bulk of Vishno's testimony was admissible without regard to the hearsay rules and satisfied beyond question defendant's Sixth Amendment right of confrontation. That testimony consisted of Vishno's own statements made while testifying at trial subject to cross-examination by the defendant. As we pointed out in United States v. Smith, 692 F.2d 693, 697-98 (10th Cir.1982):

Rule 801(d)(2)(E) and the cases construing it are irrelevant to the direct testimony of a coconspirator. By definition, hearsay is '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) (emphasis added.) There is absolutely no need to fit [the witness'] in-court statements into the coconspirator provision of Rule 801(d)(2)(E). See Laughlin v. United States, 385 F.2d 287, 292 (D.C.Cir.1967) (rule requiring independent evidence of a conspiracy before admitting coconspirator out-of-court statements 'does not exclude proof of a conspiracy by the direct testimony under oath of a party to it'), cert. denied, 390 U.S. 1003, 88 Sup.Ct. 1245, 20 L.Ed.2d 103 (1968).

(Emphasis in the original.) There is no constitutional requirement that such testimony be examined for trustworthiness before...