U.S. v. Williams

• Decision Date: 31 March 1978
• Docket Number: No. 77-5103,77-5103
• Citation: 571 F.2d 344
• Parties: 2 Fed. R. Evid. Serv. 1014 UNITED STATES of America, Plaintiff-Appellee, v. Glen WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 344

571 F.2d 344

2 Fed. R. Evid. Serv. 1014

UNITED STATES of America, Plaintiff-Appellee, v. Glen WILLIAMS, Defendant-Appellant.

No. 77-5103.

United States Court of Appeals Sixth Circuit.

Argued Oct. 6, 1977.

Decided Feb. 22, 1978.

Rehearing and Rehearing En Banc Denied March 31, 1978.

Renee S. Siegan, John W. Tapp, Detroit, Mich., for defendant-appellant.

James K. Robinson, U. S. Atty., William J. Richards, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before EDWARDS, LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

This case involves Rule 803(5) of the Federal Rules of Evidence, which provides as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Glen Williams was indicted for cashing government checks bearing forged endorsements in violation of 18 U.S.C. § 495. The statute requires that the person charged know that the endorsement is a forgery and that the check be uttered and published as true "willfully, knowingly, and unlawfully with intent to defraud the United States . . . ." There was uncontradicted evidence that the endorsements on four checks introduced as exhibits were forgeries and strong evidence that the defendant had cashed all four of them at a Detroit bar referred to in the indictment. The only substantial issue for the jury, as counsel for the defendant conceded in closing argument, was whether the government had proven beyond a reasonable doubt that Williams Gary Ball was called as a witness by the government. Ball operated a junk yard next door to the bar where the four forged checks were cashed and he cashed checks there regularly. During a portion of the time when the forged checks were negotiated at the bar the defendant Glen Williams rented part of Ball's lot and ran a similar business there. Ball testified that when the first of the forged checks was returned by the bank the proprietor of the bar presented it to him, assuming that he had cashed it. After Ball had denied cashing the check he told the proprietor to check it out further. Ball testified, ". . . later, he told me it was Glenn ^* Williams that had cashed it." The witness then related his conversations with Williams about this check. After stating that Williams admitted that he had cashed the check and was willing to make it good, Ball was asked if Williams had stated where he had gotten the check. The witness answered, "Not to my knowledge, I don't remember him telling me where he got it." When the government attorney asked Ball specifically if he ever had a conversation with Williams "about a deal he had going with his landlord about checks . . .," counsel for the defendant objected. The court directed that the question be rephrased, and this question and answer followed:

"intentionally cashed these checks knowing that they had forged endorsements."

Q Mr. Ball, I am going to rephrase my question slightly.

Did you have a conversation with Mr. Williams about another check besides this one payable to Mr. Quick?

A We had a conversation I don't remember exactly the time or the day or when but I asked him about the checks, and he said that he had cashed them for a landlord or a caretaker. One check, he said he had found in a hotel room.

The witness was then asked to examine a written statement which he had given to a secret service agent 15 months prior to the trial. ¹ He identified the signature at the end of the statement as his and made an incomplete reference to a "discrepancy" as he read the statement to himself. Once Ball finished reading the statement, he was asked, "Can you now remember more about these conversations than you just did a moment ago?" Ball answered, "No." The jury was then excused and a "special record" was made. The direct examination of the witness by government counsel included the following:

Q Mr. Ball, the statement that you have in front of you now, did you give that statement to Agent Lutz of the Secret Service in about July of '75?

A I did.

Q Were the conversations that you had had with Mr. Williams fairly fresh in your mind at the time you made that statement?

A They were.

Q Did you swear to Agent Lutz that that statement was a true statement?

A I did.

Q You were put under oath, asked to raise your hand and so forth, to tell the truth?

A I don't remember if I was or not.

Q Had you told Agent Lutz before basically the same version about these conversations with Williams orally but not in writing?

A Do you mean from the first time I talked to Mr. Lutz or up until this was taken?

Q On previous occasions when you had talked to Mr. Lutz, did you tell him basically the same version that you put in the statement there?

A When I first met Mr. Lutz, he was accusing me of cashing the checks. And he accused me before I even talked to Tony about this check, the Willington check, or the Quick check. It was after that they told me that I wasn't the one that they were looking Q But my question is: Did you give basically the same account to Agent Lutz orally on previous occasions before you gave this statement?

for that Tony asked me if I could get his money back for the check, and I told him I would try, I would talk to Glenn about it.

A Basically the same account, to the best of my recollection.

Q Was that statement true and accurate to the best of your knowledge?

A Yes.

Q And is that statement true and accurate now to the best of your knowledge?

A It is.

On cross-examination, still out of the presence of the jury, Ball testified that the statement was in the handwriting of Secret Service Agent Lutz and that it had not been taken down word for word by the agent. Rather, "We talked and then he wrote this out, and then I signed it." While affirming his previous testimony that the statement was true and accurate at the time he gave it, Ball now said it was true and accurate "in general." On the question of what Williams had told him about where he (Williams) had gotten the checks, the testimony was as follows:

Q All right. On this paper, here (indicating), it says, "Glenn told me that he and his/or a landlord or caretaker were getting checks before the payee could get his mail."

Is that a quote from you?

A I think the quote from me would have probably been that something like wherever Glenn stayed at, he got it from his caretaker or landlord. I don't remember ever putting in there that "before coming from the mail, getting the mail".

Q Did Glenn ever tell you excuse me did Mr. Williams ever tell you that these checks were stolen checks?

A No, he didn't.

Q Okay. Did you intimate, did you try to lead Officer Lutz, Agent Lutz, into believing that you believed that Glenn Williams was admitting to you a crime?

A No, I didn't.

Q So, what were you telling Agent Lutz that you knew?

A That he cashed the checks at Tony's bar, and that he had got them from where he was living at to cash them, to the best of my knowledge.

Q Did you tell Mr. excuse me Agent Lutz that it was your understanding that someone else was stealing checks and giving them to Glenn?

A I didn't put it in those words. I told him it was my understanding that the checks were coming from an apartment building.

Q Did you tell him that they were stolen checks, that Mr. Williams had told you that?

A No, I didn't.

Q Is there anything else in this statement that is not what you told Officer Lutz but, rather, is what he wrote in here?

A No, there is not; not that I know of.

Q Would you just explain to me, Mr. Ball, did you give Officer Lutz Agent Lutz the impression that Mr. Williams had told you that he was stealing checks?

A No, I didn't.

Q Did you give Agent Lutz the impression, or did you try to give him the impression, that you believed that Mr. Williams was cashing stolen checks and that he knew it?

A No, I didn't.

Q Did you believe, when you were signing this statement, that you were in any way incriminating Mr. Williams?

A No, I didn't.

On redirect examination Ball admitted reading the statement before he signed it, and swearing to Agent Lutz that it was true. He contended that he had not told the agent that Williams had told him that he or the landlord or caretaker were getting The district court then heard arguments of counsel after which it ruled that the statement would be admitted as "recollection of a statement that had been adopted by the witness." The District Judge held that a foundation had been adequately laid for admission of the statement, finding that his (Ball's) "relationship with the defendant here, his demeanor, his selective memory with regard to matters, convinces this Court that he is withholding and that his protestations of failure of recollection are not convincing to the Court." Following the requirements of Rule 803(5), the court did not admit the statement as an exhibit, but permitted it to be read to the jury after deleting the subjective impression, "It was my understanding that someone else was stealing the checks and giving them to Glenn." When the jury returned, and before the statement was read, Ball testified again that the statement was true and accurate at the time he gave it. Ball then read the statement.

the checks before the addressees picked up their mail. He also gave an explanation for his comment to Williams, "I thought you told me you had stopped this b. s.," which did not imply that the checks were stolen. He testified that he and Williams remained friends.

On cross-examination, after the jury had heard the statement, Ball testified that...