US v. White, Crim. No. 93-0097 (HHG).

• Decision Date: 27 October 1993
• Docket Number: Crim. No. 93-0097 (HHG).
• Citation: 838 F. Supp. 618
• Parties: UNITED STATES of America v. Antone R. WHITE, Eric A. Hicks, Dan R. Hutchinson, Ronald R. Hughes and Derrick J. Ballard.
• Court: U.S. District Court — District of Columbia

838 F. Supp. 618

UNITED STATES of America v. Antone R. WHITE, Eric A. Hicks, Dan R. Hutchinson, Ronald R. Hughes and Derrick J. Ballard.

Crim. No. 93-0097 (HHG).

United States District Court, District of Columbia.

October 27, 1993.

Michael Volkov, Steven Roman, Asst. U.S. Attys., Washington, DC, for Government.

R. Kenneth Mundy, Washington, DC, for Antone R. White.

Joseph Gigliotti, Washington, DC, for Eric A. Hicks.

John A. Briley, Jr., Washington, DC, for Dan R. Hutchinson, Jr.

Diane S. Lepley, Washington, DC, for Ronald R. Hughes.

Mark Rochon, Washington, DC, for Derrick J. Ballard.

OPINION

HAROLD H. GREENE, District Judge.

This case involves the prosecution of five defendants alleged to be members of an organization known as the First Street Crew. The defendants are accused in a twenty-six count indictment of conspiracy to distribute narcotics, operation of a continuing criminal enterprise, violations of RICO and other criminal violations. Two of the defendants have been indicted for the homicide of Arvell Williams, a police informant who worked with the Metropolitan Police Department in its investigation of the First Street Crew. The Court has received and considered numerous pretrial motions, most of which have been ruled upon from the bench or in a previously issued Memorandum. The instant Opinion, however, deals with a relatively novel legal and procedural issue raised by the government. Therefore, the Court has determined that it merits somewhat more extended treatment.

As set forth in its motion, the government seeks to introduce at trial a number of out-of-court statements made by Arvell Williams prior to his death.¹ The issue before the Court is whether any of Williams's statements may be admitted at trial notwithstanding the obvious fact that he will be unable to take the stand and therefore cannot be cross-examined. The government contends that the defendants have procured the absence of Mr. Williams from these proceedings and that they have therefore waived any confrontation rights and hearsay objections that might otherwise be available. Not surprisingly, the defendants dispute this assertion.²

I Waiver of Confrontation Rights and Hearsay Objections

The Supreme Court has long recognized that a defendant's right of confrontation may be waived not only by consent but also by misconduct. Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). The Supreme Court has specifically indicated that a defendant cannot assert his Confrontation Clause rights if a witness's absence is procured by the defendant himself. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878) (absence procured through defendant's refusal to tell U.S. Marshal where witness, who lived with defendant, could be found for service of subpoena). This rule has been applied by the lower courts in a number of factual situations.³

The rationale underlying this rule of law is, quite logically, that the law should not allow a person to take advantage of his own wrong. See United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir.1982). Put another way, "the Sixth Amendment does not stand as a shield to protect the accused from his own misconduct or chicanery." United States v. Carlson, supra, 547 F.2d at 1359 (citing Diaz v. United States, 223 U.S. 442, 458, 32 S.Ct. 250, 255, 56 L.Ed. 500 (1912) and Reynolds v. United States, supra, 98 U.S. at 159). The Carlson court went on to state that:

Nor should the law permit an accused to subvert a criminal prosecution by causing witnesses not to testify at trial who have, at a pretrial stage, disclosed information which is inculpatory as to the accused. To permit the defendant to profit from such conduct would be contrary to public policy, common sense and the underlying purpose of the confrontation clause.

Carlson, supra, 547 F.2d at 1359. Similar conclusions, which the Court believes cannot reasonably be questioned, have been reached by a number of other courts.⁴ "Any other result would mock the very system of justice the confrontation clause was designed to protect." United States v. Mastrangelo, supra, 693 F.2d at 273.

Moreover, most courts have agreed that a waiver of confrontation rights under these circumstances also waives any hearsay objection to the admissibility of the evidence. See United States v. Aguiar, supra, 975 F.2d at 47 ("A defendant who procures a witness's absence waives the right of confrontation for all purposes with regard to that witness, not just to the admission of sworn hearsay statements."); United States v. Thevis, supra, 665 F.2d at 630 ("waiver of defendant's right to confrontation in these circumstances also constituted a waiver of any hearsay objection"). Compare United States v. Carlson, supra, 547 F.2d at 1360 n. 14 ("We need not go so far in this case as to hold that, when an accused threatens a potential witness into not testifying at trial, all extrajudicial statements of that witness, however unreliable or unbelievable, may be admitted in evidence at trial.").

In Steele v. Taylor, supra, the Sixth Circuit explored at length the issue of whether a waiver of confrontation rights also waives any otherwise available hearsay objections. For many of the same public policy reasons set forth in the preceding paragraphs, the Steele court concluded that the hearsay rule must be substantially relaxed when the defendant has caused a witness's unavailability. 684 F.2d at 1201. The court in that case gathered and summarized a substantial history of both English and American cases supporting the proposition that a defendant who procures the absence of a witness waives his right to object to extra-judicial statements admitted at trial. Id. & n. 10. This Court finds compelling the rationale set forth in Steele and each of the other cases discussed above. Therefore, the Court agrees that if any defendant was responsible for the absence of Arvell Williams from the trial in this case, that defendant will be deemed to have waived his confrontation rights and hearsay objections with respect to statements made by Arvell Williams.

II Procedures For Determining Waiver of Confrontation Rights

Based upon the foregoing statement of the law, the Court determined that it would be necessary to conduct a two-stage preliminary hearing in order to make determinations with respect to which defendants, if any, were responsible for the absence of Arvell Williams and which statements made by Mr. Williams would be admitted at trial.

First, the government was required to present evidence in support of its contention that any or all of the defendants were instrumental in procuring the absence of Arvell Williams from these proceedings. See United States v. Mastrangelo, supra, 693 F.2d at 273. Second, the government was required to identify specifically those statements it intended to introduce at trial, and the defendants were given an opportunity to cross-examine those police officers to whom Mr. Williams made the statements with respect to the reliability of the statements and the circumstances under which they were made and recorded.

A. Procurement of Witness's Unavailability

Under the procedures outlined by the Court, the government was first required to present evidence with respect to whether any or all of the defendants were responsible for the absence of Arvell Williams from these proceedings. Prior to beginning this phase, the Court advised the parties of the factors it would consider in making this threshold determination. The instructions included (1) the evidentiary procedures for the hearing, (2) the level of participation or knowledge of a particular defendant required for out-of-court statements to be admitted against him, and (3) the government's burden of proof.

1. Evidentiary Procedure

Because of serious witness security concerns, evidence with respect to the cause of the unavailability of Arvell Williams was presented exclusively through testimony provided by Detective Joseph Schwartz, a homicide detective with the Metropolitan Police Department. Detective Schwartz testified with respect to a number of witness statements and identifications gathered in connection with the investigation of the Williams murder. Throughout this testimony, the witnesses were referred to only by previously arranged designations such as Witness # 1, Witness # 2, etc.⁵ The government was also required to bring out on direct examination any prior convictions of the unidentified witnesses and any "deals" such witnesses may have made with the government to allow the Court to consider the credibility of the absent witnesses and any bias the absent witnesses might harbor in favor of the government.

The defendants protested with respect to this procedure based largely upon their assertion that it was essential for the Court to view the demeanor of each witness in order to make an accurate assessment of their credibility. The Court noted, however, that other courts have repeatedly held that hearsay testimony may be accepted in hearings held for the instant purpose. See, e.g., United States v. Aguiar, supra, 975 F.2d at 47 (evidence of reason for unavailability presented through prior unsworn statements made by unavailable witness); United States v. Mastrangelo, supra, 693 F.2d at 273 (evidence of reason for unavailability to be presented under Fed.R.Evid. 104(a), which allows hearsay evidence); United States v. Balano, supra, 618 F.2d at 628-29 (evidence of reason for unavailability presented through government agents; often the only evidence available); United States v. Carlson, supra, 547 F.2d at 1353 (evidence of reason for unavailability presented through testimony of DEA Agents).

Obviously, once the Court determines that hearsay testimony will be allowed, the defendants' concern regarding the Court's inability to view the demeanor of the out-of-court declarant is essentially moot. Inherent in the concept of hearsay testimony is the fact that...