ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Adams, Higginbotham, Circuit Judges, Walter K. Stapleton, District Judge.*fn*
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
William Parran, defendant/appellant, and a co-defendant, Curtis Reynolds, were indicted by a federal Grand Jury in the Western District of Pennsylvania. Count One of the three-count indictment charged that Parran and Reynolds, in violation of 18 U.S.C. § 371, conspired with each other to violate 18 U.S.C. § 1708 by possessing a Pennsylvania unemployment compensation check, knowing that the check had been stolen. It also charged that Parran and Reynolds conspired to violate 42 U.S.C. § 408(g) by using the social security number of the payee of the check, Stanford D. David, in an effort to cash the check. Counts Two and Three charged Parran and Reynolds with the substantive offenses alleged as the objects of the conspiracy in Count One. Reynolds pled guilty to Counts Two and Three immediately before trial. At their joint trial, Reynolds was tried as to Count One, and Parran was tried as to all three counts. Reynolds was found guilty on Count One, and Parran was found guilty on all three counts.
Parran appeals these convictions, relying on several grounds. Specifically, Parran argues that it was reversible error to admit into evidence co-defendant Reynolds' oral statement implicating Parran and to admit Parran's written statement incriminating himself. In addition, Parran argues that the district court abused its discretion by refusing to sever his trial from that of the co-defendant. Finally, Parran argues that, even when viewing the evidence in the light most favorable to the government, the evidence was insufficient to support the verdicts against him. We are persuaded by Parran on one issue,*fn1 that the district court erred in admitting into evidence the testimony from a postal inspector as to the statement Reynolds allegedly made after his arrest. In that statement Reynolds allegedly said in the presence of the postal inspector and Parran, "I didn't tell them anything about you." Because we believe that, in the context of this case, co-defendant Reynolds' statement was prejudicial hearsay evidence, its admission in this joint trial for the purpose of proving Parran's conspiratorial endeavor, as well as the substantive offenses charged, constitutes reversible error.
The evidence at trial showed that during the Spring of 1982 the United States Postal Inspection Service was engaged in an effort to identify and prosecute individuals who stole checks from the United States mails. The service secured the cooperation of Chircosta Studio which informed it of individuals who obtained photo I.D. cards under "suspicious" circumstances.
On April 5, 1982 Parran and Reynolds entered Chircosta Studio for the purpose of obtaining a photo I.D. card for Reynolds. A studio employee telephoned the Service and informed it that two individuals in the studio "did not appear to know . . . the name and number . . . that they wanted to put on the I.D." Appendix ("App.") 16a. The caller also gave a physical description of the two men.
Shortly after receiving the call, three postal inspectors went to the studio and observed the appellant and co-defendant leave the studio together while conversing and looking at a photo I.D. card. They crossed the street together. When they reached the other side, Parran appeared to say something to Reynolds and then continued down the street as Reynolds entered the bank. Reynolds attempted to have a check cashed, but the teller refused to do so because Reynolds did not have an account with that bank. Reynolds left the bank and stood outside looking in the direction that Parran had gone. Reynolds then crossed the street where he was arrested by postal inspectors for possession of a check that was allegedly stolen from the mail. The postal inspectors testified that after Reynolds' arrest, as Parran approached him, Reynolds said to Parran: "I didn't tell them anything about you." App. 24a. It is this statement that Parran claims was inadmissible hearsay and erroneously introduced into evidence against him.
This case presents the issue whether the admission of codefendant Reynolds' out-of-court statement into evidence against appellant Parran at their joint trial constituted prejudicial error. The government argues that Reynolds' statement is not hearsay. Its theory is that the statement was not admitted to prove that Reynolds did not say anything about Parran; instead it was admitted to prove the conspiracy to defraud as well as the co-defendants' joint participation in the substantive offenses charged in Counts Two and Three. Because the statement was allegedly not admitted for the express truth of the matter asserted, the government argues that the statement cannot be considered hearsay under Rule 801(c) of the Federal Rules of Evidence.
Rule 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). It is well settled that evidence is inadmissible hearsay if its probative value depends on the truth of any assertion of fact it contains or on the credibility of someone not available for ...