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March 6, 1987

United States of America, Plaintiff,
Manuel Vigoa, Wilfredo Torres, and Roy Montesinos, Defendants

The opinion of the court was delivered by: SAROKIN

 H. LEE SAROKIN, District Judge.

 This matter is before the court on the government's application to admit the grand jury testimony of Orestes Rodriguez, a recently deceased government witness, into evidence at trial. For the reasons set forth below, the court concludes that admission of the grand jury testimony would violate both the Federal Rules of Evidence and the Confrontation Clause. *fn1"


 On May 22, 1986, pursuant to a cooperation agreement with the government, Orestes Rodriguez testified before a Brooklyn grand jury concerning Manuel Vigoa's participation in a cocaine importation scheme. Mr. Rodriguez, owner of the Alpha Auto Salvage yard in Newark, described how he was contacted by Manuel Vigoa in March of 1986 and offered $ 40,000 to assist in the delivery of a 20 foot sea container bearing 700 kilograms of cocaine in a secret compartment.

 Rodriguez further testified that after the container arrived in his salvage yard, Vigoa met Rodriguez in a bar in Newark on March 21, 1986 and told him that he and the "people from New York" would come to the salvage yard in a van the next day to unload the container. According to Rodriguez, Vigoa requested that he obtain a torch for use in freeing the cocaine stored behind a camouflaged wall in the container.

 Finally, Rodriguez testified that Vigoa and three other people arrived at the salvage yard on March 22, 1986 in a van and a car. Rodriguez described how they opened and began unloading the container. Yet, before the container had been unloaded, FBI agents appeared at the salvage yard and began questioning the defendants.

 On October 18, 1986 Orestes Rodriguez died. According to the government, Rodriguez was the only witness with direct knowledge of Vigoa's role in planning the delivery of the cocaine. Rodriguez's grand jury testimony is the government's most probative piece of evidence regarding Vigoa's participation in the cocaine importation scheme.


 Two distinct analyses are required here. First, is the witness' grand jury testimony admissible under the Rules of Evidence, and if so, does its admission violate the Confrontation Clause? The Supreme Court has made clear that while the hearsay rule and Confrontation Clause "stem from the same roots", Dutton v. Evans, 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970), and "are generally designed to protect similar values", California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970), their reach is not coextensive. United States v. Inadi, 475 U.S. 387, 106 S. Ct. 1121, 1126 n.5, 89 L. Ed. 2d 390 n.5 (1986); United States v. Medico, 557 F.2d 309, 314 n.4 (2nd Cir. 1977).

 I. Federal Rules of Evidence

 A. Admissibility under Rule 804(b)(5)

 The government takes the position that Rodriguez's testimony falls within the established "residual" exception to the hearsay rule, Federal Rule of Evidence 804(b)(5). Rule 804(b)(5) provides that "[a] statement not specifically covered" by any of the other Rule 804(b) exceptions governing admissibility of statements by unavailable declarants, may be admitted if the proffered statement has "circumstantial guarantees of trustworthiness" equivalent to those other exceptions. *fn2" In addition the proffered statement must meet the following requirements:

(5) . . . (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will be served by admission of the statement into evidence. *fn3"

 A number of circuits have read Rule 804(b)(5) to permit the admission of grand jury testimony. See e.g. United States v. Murphy, 696 F.2d 282 (4th Cir. 1982), cert. denied, 461 U.S. 945, 103 S. Ct. 2123, 77 L. Ed. 2d 1303 (1983); United States v. West, 574 F.2d 1131 (4th Cir. 1978); United States v. Barlow, 693 F.2d 954 (6th Cir. 1982), cert. denied, 461 U.S. 945, 103 S. Ct. 2124, 77 L. Ed. 2d 1304 (1983); United States v. Boulahanis, 677 F.2d 586 (7th Cir. 1982), cert. denied, 459 U.S. 1016, 103 S. Ct. 375, 74 L. Ed. 2d 509 (1982); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S. Ct. 2174, 53 L. Ed. 2d 224 (1977).

 Later in United States v. Garner, supra, the Fourth Circuit expanded its reading of Rule 804(b)(5), permitting admission of grand jury testimony even in the absence of agents' surveillance, tape recordings, or contemporaneous signed statements. In Garner the co-defendant/declarant, after entering into a plea agreement and testifying before a grand jury in considerable detail about defendant's importation of heroin from Europe, refused to testify at trial. Upholding the admission of the declarant's testimony, the Fourth Circuit held that testimony by another unindicted co-conspirator corroborating declarant's account of one particular European trip to procure heroin, and the existence of extensive travel documentation confirming declarant's testimony, provided "strong indicators of reliability".

 Similarly, the Eighth Circuit in United States v. Carlson, supra, held a grand jury transcript admissible under Rule 804(b)(5) despite the lack of corroborating tapes or surveillance. The court noted that the grand testimony had strong indicia of reliability because: (1) it was given under oath, thereby subjecting declarant to the penalties of perjury for false statements, (2) related facts of which the declarant had first-hand knowledge; and (3) was never recanted. *fn4" In addition, the court was greatly influenced by the fact that declarant's testimony was "necessary" since declarant was the only government witness who could establish defendant's participation in the cocaine distribution.

 However, in United States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977), the Fifth Circuit refused to admit grand jury testimony under Rule 804(b)(5). The grand jury witness, a previously-convicted co-conspirator, implicated the defendant in a marijuana importation scheme, but later refused to testify at trial fearing physical reprisal by the defendant against himself and his family. The Gonzalez court placed less faith in the reliability of grand jury testimony than the Carlson court.

 In refusing to admit declarant's statements, the Fifth Circuit pointed to numerous factors undermining the reliability of grand jury testimony. For example the court noted that: (1) a declarant is under enormous "pressure" from the prosecutor and members of the grand jury to "come up with answers"; (2) leading questions asked in a grand jury setting would not be permissible at trial, "on the rationale that they might possibly distort the truth of the answers"; (3) the testimony is not cross-examined, or otherwise probed, but rather accepted at first telling even if not supported by detailed facts. Id. at 1273. Given the subject matter of the evidence, and its potential to incriminate defendant, the court required a showing of trustworthiness beyond the mere recitation of a grand jury oath.

 Likewise the Sixth Circuit in United States v. Barlow, supra, though finding the grand jury testimony admissible on the particular facts of that case, held that where the testimony provided "direct evidence of guilt or critical proof of guilt", substantial corroborating evidence, beyond the grand jury setting, must "weigh heavily in favor of admissibility" before such testimony may properly be admitted under Rule 804(b)(5). Id. at 962.

 While the Third Circuit has never explicitly addressed the problem of the admissibility of grand jury testimony under Rule 804(b)(5), the Third Circuit, in dicta, has endorsed a narrow application of the Rule. See United States v. Bailey, 581 F.2d 341 (3rd Cir. 1978); In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 302 (3rd Cir. 1983), rev'd on other grounds 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 In United States v. Bailey, supra, the Third Circuit read the legislative history underlying Rule 804(b)(5) as requiring the Rule "to be used only rarely, and in exceptional circumstances". Quoting the Report of the Senate Judiciary Committee that "the residual exceptions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions", the Third Circuit has concluded that "in reviewing the admissibility of evidence under Rule 804(b)(5), we must keep in mind its limited scope as intended by Congress". Id. at 347, quoting S. Rep. No. 1277, 93rd Cong., 2d Sess. (1974). Furthermore, the Third Circuit has warned that "in analyzing the admissibility of evidence pursuant to Rule 804(b)(5), a court should exercise its discretion in order to avoid potential conflicts between confrontation rights and this hearsay exception". Id. at 350.

 This court begins its analysis by questioning the validity of ever admitting grand jury testimony under the "residual" or "catchall" Rule 804(b)(5) exception.

 The purpose of Rule 804(b)(5) as drafted is to enable a court, in its discretion, to admit otherwise excludable hearsay arising under such exceptional circumstances that it has not been anticipated by any of the four enumerated 804(b) exceptions. The language of Rule 804(b)(5) explicitly limits its availability to hearsay " not specifically covered " by any of the other 804(b) exceptions. (emphasis added). Thus, in order to establish the applicability of Rule 804(b)(5), courts must first determine whether the proffered hearsay is of a type already "covered" or contemplated by the specific exceptions. Where the proffered evidence is covered by a specific hearsay exception, it cannot qualify for admission under the residual exception but must be admissible, if at all, in accordance with the conditions of the specific exception.

 It is undisputed that grand jury testimony constitutes "former testimony" as contemplated by Rule 804(b)(1). Consequently, grand jury testimony cannot be qualified for admission under the residual exception 804(b)(5) but must be subject to scrutiny under the requirements of 804(b)(1).

 This conclusion is not altered by the fact that grand jury testimony is inadmissible under 804(b)(1) which expressly prohibits use of former testimony against a criminal defendant who did not have the opportunity to examine the witness at the grand jury proceeding. "Neither the Advisory Committee nor the Senate Judiciary Committee intended that the residual exceptions be used to qualify for admission evidence which is of a type covered by a specific exception, but which narrowly fails to meet the standards of the specific rule". Zenith Radio Corp v. Matsushita Elec Ind Co., 505 F.Supp 1190, 1263-4 (E.D.Pa. 1980), appealed on other grounds 631 F.2d 1069 (3rd Cir. 1980), rev'd on other grounds and remanded 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "Where there is a specific hearsay exception applicable to a clearly defined category of evidence such as former testimony, but the evidence fails to satisfy the requirements of the specific exception, the evidence should not be admitted under the residual exception. Thus if the former testimony is admissible, it must be under Rule 804(b)(1) and not Rule 804(b)(5)". Creamer v. General Teamsters Local Union 326, 560 F.Supp 495, 498 (D. Del. 1983).

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