United States v. Allen, 115-68.

• Decision Date: 05 May 1969
• Docket Number: No. 115-68.,115-68.
• Citation: 409 F.2d 611
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. A. J. ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

409 F.2d 611 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. A. J. ALLEN, Defendant-Appellant.

No. 115-68.

United States Court of Appeals Tenth Circuit.

April 15, 1969.

Rehearing Denied May 5, 1969.

David A. Fogel, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., on the brief), for plaintiff-appellee.

Robert Dunlap of Moyers & Dunlap, Colorado Springs, Colo., for defendant-appellant.

Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

On trial to the court without a jury, the defendant-appellant was found guilty of violating the Mann Act, 18 U.S.C. § 2421. He appeals from the judgment imposing sentence.

Defendant was charged in a seven-count indictment. Four of the counts related to a woman named Davis and the other three to a woman named Whitehurst. On motion of the defendant, the Davis counts were severed from the Whitehurst counts. Later, a jury was waived and the government dismissed all but Count III pertaining to Davis and Count VI pertaining to Whitehurst.

The defendant was arrested on February 7, 1968. A preliminary hearing was held before a United States Commissioner on February 13. The defendant was present with counsel who has continued to represent him at the trials and on this appeal. No continuance was requested. The charge was a violation of 18 U.S.C. § 2421 by the separate interstate transportation of Davis and Whitehurst for purposes of prostitution. Davis and Whitehurst each testified and each was cross-examined by defense counsel. The opportunity for cross-examination was full, complete, and unrestricted.

At the trials, Davis and Whitehurst invoked the Fifth Amendment protection against self-incrimination and refused to testify. Over objections of the defendant, the district court received in evidence the transcripts of their testimony at the preliminary hearing. Without such testimony, the evidence was insufficient to sustain the conviction on either count.

The use at trial of testimony received in a preliminary hearing has been considered in several cases. In Motes v. United States, 178 U.S. 458, 471, 20 S.Ct. 993, 998, 44 L.Ed. 1150, the Court held that it was error to receive in evidence a statement made at the "examining trial" when the absence of the witness was not procured by the defendant but was "manifestly due to the negligence of the officers of the government." Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, holds that the Sixth Amendment right of confrontation applies to the States under the Fourteenth Amendment. The Court pointed out, 380 U.S. 407, 85 S.Ct. 1069, that a major reason for the confrontation rule is "to give a defendant charged with crime an opportunity to cross-examine the witnesses against him," and held that the preliminary hearing transcript was improperly received at the trial because at that hearing the defendant was not represented by counsel and had no opportunity for cross-examination. The Court said: (Id.)

"The case before us would be quite a different one had Phillips\' the witness statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine."

Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934, is not in point. There the witness who invoked the Fifth Amendment was subjected to cross-examination as a hostile witness and interrogated about a confession implicating the defendant. The witness refused to answer any questions in regard thereto. In that situation the witness could not be cross-examined on a statement "imputed to but not admitted by him." Accordingly, there was a denial of the adequate opportunity for cross-examination.

The Courts of Appeals have held that, in proper circumstances, statements made at a preliminary hearing may be received in evidence at a subsequent trial. See Government of the Virgin Islands v. Aquino, 3 Cir., 378 F.2d 540, 549; Smith v. United States, 4 Cir., 106 F.2d 726, 728; and Baldwin v. United States, 6 Cir., 5 F.2d 133, 134.

In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, the Court held that a transcript of testimony received at a preliminary hearing was improperly received in a state trial when the witness was confined in a federal institution and the state made no effort to obtain his presence for the trial. Although Barber v. Page mentions demeanor evidence and the difference between a preliminary hearing and a trial, we read that opinion as deciding only that the transcript was improperly received because unavailability had not been established.

The case before us presents three points. The first is whether the requirement of unavailability is satisfied when the witness is physically present but the testimony is unavailable because of the invocation of the Fifth Amendment privilege. This point was resolved by our recent decision in Mason v. United States, 10 Cir., 408 F.2d 903. In that case witnesses who testified at the first trial claimed the Fifth Amendment privilege and refused to testify at the second trial. The government then used the...