U.S. v. Vinson
| Decision Date | 27 September 1979 |
| Docket Number | 78-5412,Nos. 78-5406,s. 78-5406 |
| Parties | 5 Fed. R. Evid. Serv. 1 UNITED STATES of America, Plaintiff-Appellee, v. Charles VINSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Arlie B. THOMPSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
George I. Cline, Morehead, Ky., for defendants-appellants in 78-5406.
Clarence B. Creech, Ashland, Ky., for defendants-appellants in 78-5412.
Patrick H. Molloy, U. S. Atty., Lexington, Ky., for plaintiff-appellee in both cases.
Before EDWARDS, Chief Judge, and KEITH and MERRITT, Circuit Judges.
After a jury trial in the United States District Court for the Eastern District of Kentucky, Vinson, Sheriff of Lawrence County, and Thompson, a county magistrate, were convicted of extorting money from a coal company and of conspiring to do so. 18 U.S.C. § 1951 (1976). We affirm the defendants' convictions. The major issue on appeal is whether the District Judge followed proper procedures governing admission of co-conspirator hearsay evidence. We address questions left unanswered by our recent decision in United States v. Enright, 579 F.2d 980 (6th Cir. 1978), and establish guidelines for administering the co-conspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E).
During the government's case-in-chief, the District Court admitted testimony describing out-of-court statements of Sheriff Vinson which tended to incriminate Magistrate Thompson in both the conspiracy and the substantive offenses. An officer of the coal company who was the target of the extortion plan testified that the Sheriff told him that the Magistrate was his agent in the extortion scheme and would pick up the extortion payments. Upon timely objection, the District Judge instructed the jury as follows:
That (hearsay) will not be considered by you, ladies and gentlemen, as any evidence against (the Magistrate) until you are satisfied or the Court makes a ruling of a prima facie case of conspiracy.
Further along in the government's case, the District Judge made a preliminary finding that the government had proved a conspiracy involving the Sheriff and Magistrate by a preponderance of the evidence. He then ruled that the out-of-court statements of the Sheriff, made in the course of and in furtherance of the conspiracy, could be used as evidence against the Magistrate. He instructed the jury:
Ladies and gentlemen . . . let me advise you that the admonition that I have given you earlier in the case about not considering certain testimony as to (the Magistrate) is now withdrawn.
Both defendants objected to the judge's second statement on the ground that it amounted to an improper comment on the sufficiency of the evidence. Although we believe that the judge should have made neither statement, we find that no prejudice resulted to defendants. The government's proof of the conspiracy as well as of the substantive offense rested on strong non-hearsay evidence which showed that the Sheriff, the Magistrate and an unindicted third person conspired to and, in fact, did extort money from the coal company. Sheriff Vinson was the principal in the scheme, and the Magistrate and the third person were his agents. The three threatened to harass the coal company's trucks which operated on county roads unless extortion payments were made. Two such payments were made before authorities apprehended the defendants. There was relatively little co-conspirator hearsay admitted both before and after the District Judge made his preliminary finding, and the jury had abundant, non-hearsay evidence on which to base its verdict. Moreover, any confusion which might have been caused by the trial judge's comments to the jury was cured by his final conspiracy instruction in which the elements of a criminal conspiracy and the government's burden of proof were clearly and correctly stated.
In Enright we held that, before the government can take advantage of the co-conspirator exception to the hearsay rule, it must show by a preponderance of the evidence (1) that a conspiracy existed, (2) that the defendant against whom the hearsay is offered was a member of the conspiracy, and (3) that the hearsay statement was made in the course and in furtherance of the conspiracy. We also held that this preliminary finding is the sole province of the trial judge. Fed.R.Evid. 104(a). In Enright, however, we did not decide whether, before the judge has made his finding on the preliminary question, he may admit the hearsay subject to connection later in the trial, as did the trial judge here. We also did not decide whether the trial judge may consider the hearsay itself in making his preliminary finding.
A trial judge must have considerable discretion in controlling the mode and order of proof at trial 1 and his rulings should not cause reversal of a criminal conviction unless they "affect substantial rights." 2 Thus, we do not believe that it is appropriate to set forth hard and fast procedures. Rather, we set forth alternative means for District Judges to structure conspiracy trials, that will allow the government to present its proof while at the same time protecting defendants from inadmissible hearsay evidence.
One acceptable method is the so-called "mini-hearing" in which the court, without a jury, hears the government's proof of conspiracy and makes the preliminary Enright finding. 3 If the hearsay is found admissible, the case, including co-conspirator hearsay, is presented to the jury. Although this procedure has been criticized as burdensome, time-consuming and uneconomic, 4 a trial judge, in the exercise of his discretion, may choose to order the proof in this manner if the circumstances warrant.
The judge may also require the government to meet its initial burden by producing the non-hearsay evidence of conspiracy first prior to making the Enright finding concerning the hearsay's admissibility. This procedure clearly avoids "the danger . . . of injecting the record with inadmissible hearsay in anticipation of proof of a conspiracy which never materializes." 5
The judge may also, as was done here, admit the hearsay statements subject to later demonstration of their admissibility by a preponderance of the evidence. If this practice is followed, the court should stress to counsel that the statements are admitted subject to defendant's continuing objection and that the prosecution will be required to show by a preponderance of the evidence that a conspiracy existed, that the defendant against whom the statements are hearsay was a participant and that the statement was made in the course and in furtherance thereof. At the conclusion of the government's case-in-chief, the court should rule on the defendant's hearsay objection. If the court finds that the government has met the burden of proof described in Enright, it should overrule the objection and let all the evidence, hearsay included, go to the jury, subject, of course, to instructions regarding the government's ultimate burden of proof beyond a reasonable doubt and the weight and credibility to be given to co-conspirators' statements. If, on the other hand, the court finds that the government has failed to carry its burden, it should, on defendant's motion, declare a mistrial unless convinced that a cautionary jury instruction would shield the defendant from prejudice. 6
If the trial judge does choose to admit the hearsay (a) after the government has established the conspiracy by a preponderance at the trial, or (b) at a "mini-hearing," or (c) conditionally subject to connection, he should refrain from advising the jury of his findings that the government has satisfactorily proved the conspiracy. The judge should not describe to the jury the government's burden of proof on the preliminary question. Such an instruction can serve only to alert the jury that the judge has determined that a conspiracy involving the defendant has been proven by a preponderance of the evidence. 7 This may adversely affect the defendant's right to trial by jury. The judge's opinion is likely to influence strongly the opinion of individual jurors when they come to consider their verdict and judge the credibility of witnesses.
Finally, we believe that, whatever procedure a District Judge uses, the hearsay statements themselves may be considered by the judge in deciding the preliminary question of admissibility. The preliminary finding of conspiracy for purposes of the co-conspirator exception to the hearsay rule is a "question concerning . . . the admissibility of evidence" governed by Fed.R.Evid. 104(a), and we believe that the final sentence of Rule 104(a) stating that the judge "is not bound by the rules of evidence" modifies prior law to the contrary. 8 The fact that the judge may consider under Rule 104(a) hearsay evidence which the jury could not consider is an added reason the judge should refrain from advising the jury of his findings.
We now turn to defendants' other claims:
1. Both defendants challenge the sufficiency of the evidence. The Sheriff argues that the testimony of the government's key witness, an executive of the coal company, was contradicted to such an extent as to render the verdict unsupportable. This key witness testified that the Sheriff came to see him, outlined the payoff scheme and sent the magistrate to collect the money. This testimony was most damaging, despite defense counsel's zealous attempts to rebut and impeach the witness. The fact that the jury chose to believe this witness and to disregard the Sheriff's attack on his credibility is no basis for reversal. The testimony was corroborated by other witnesses, and there was sufficient evidence from which the jury could find guilt beyond a reasonable doubt.
The evidence of the Magistrate's involvement in the conspiracy was also strong. A review of the record indicates that he twice...
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