United States v. Adams, 71-1102.

• Decision Date: 07 July 1971
• Docket Number: No. 71-1102.,71-1102.
• Citation: 446 F.2d 681
• Parties: UNITED STATES of America, Appellee, v. Robert Willard ADAMS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

446 F.2d 681 (1971)

UNITED STATES of America, Appellee, v. Robert Willard ADAMS, Appellant.

No. 71-1102.

United States Court of Appeals, Ninth Circuit.

July 7, 1971.

Stephen A. Gerst (argued), of Cohen, Gerst & Groseclose, Phoenix, Ariz., for appellant.

Patricia Whitehead, Asst. U. S. Atty. (argued), Richard K. Burke, U. S. Atty., J. Jenckes, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before HAMLEY and CARTER, Circuit Judges, and BELLONI, District Judge.^*

HAMLEY, Circuit Judge:

Robert Willard Adams appeals from his conviction on a jury verdict of receiving stolen United States postage stamps in violation of 18 U.S.C. § 641, and burglary of a United States Post Office, in violation of 18 U.S.C. § 2115.

The only question presented is whether, under the circumstances of this case, the district court erred in admitting into evidence hearsay testimony of a declaration implicating defendant, while the declarant was engaged in a concert of action with defendant involving the criminal conduct, the declarant not being produced at the trial. Defendant does not here deny that the testimony in question falls under a recognized exception to the hearsay rule, but argues that admission of the testimony nevertheless deprived him of his rights under the Confrontation Clause of the Sixth Amendment, citing California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).¹

The recognized exception to the hearsay rule applicable here is that, notwithstanding its hearsay character, testimony of out-of-court declarations implicating another, offered to prove the other's guilt, is admissible if there is independent evidence that at the time of the declaration, the declarant and the other person were engaged in a concert of action involving the criminal conduct in question. See United States v. Griffin, 434 F.2d 978, 983-984 (9th Cir. 1970); Reyes v. United States, 417 F.2d 916, 920 (9th Cir. 1969).

While the Sixth Amendment's Confrontation Clause and the evidentiary hearsay rule stem from the same source, the Supreme Court has never equated the two. It follows that application of a recognized hearsay rule exception does not necessarily evidence compliance with the Confrontation Clause. See Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). The determination of whether, in a particular case, the application of a recognized exception to the hearsay rule satisfies the requirements of the Confrontation Clause, the Dutton opinion indicates, calls for an examination of all the circumstances of the case. The relevant factual inquiry is whether, under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration. Dutton, 400 U.S. at 89, 91 S.Ct. 210.

In the case before us, two United States Post Office Contract Stations were involved. One of these is Contract Station 8, located in a Phoenix, Arizona, drugstore. The Government's evidence indicated that on or about May 25, 1970, someone entered that station and took approximately $2,363.30 in postage stamp stock. Many of these stamps were later dumped in a Phoenix mailbox. Approximately 321 blank United States money orders were also stolen from Contract Station 8.

The second United States Post Office Contract Station involved in this case is No. 13, located in a different Phoenix, Arizona, drugstore. On or about June 25, 1970, the station was burglarized and approximately $3,204.14 worth of postage stamp stock was taken. A number of blank serialized United States money orders were also taken from Station 13, and a quantity of narcotics and a Realtone radio were taken at the same time from the drugstore in which Station 13 is located.

The Government called, as one of its witnesses, Clarence Leroy Jordan, of Nashville, Tennessee. Jordan had a prior burglary conviction and, at the time he testified, was under charges in connection with passing stolen United States money orders. Jordan testified that on June 27, 1970, he was in contact in Nashville with George Griffith, with whom Jordan was well acquainted. Jordan testified that Griffith told Jordan on this occasion that he had a shipment of United States money orders coming in from Phoenix that day about eleven o'clock.

Jordan further testified that Griffith later that day came to Jordan with one hundred twenty blank United States money orders. According to Jordan, Griffith delivered them to Jordan and he and Griffith made them out and Jordan passed them in Nashville. The Assistant United States Attorney then asked Jordan what Griffith had said to Jordan at the time of their first contact on June 27, 1970. Jordan replied:

"Mr. Griffith told me that a friend of his in Phoenix, Arizona, known as Bob Adams, was sending the shipment in a guitar case on an airline to the Nashville airport. * * *"

This is the testimony that defendant asserts was received in evidence...