United States v. Antonio Fernandez, Jorge Recarey, Mariano Villa Del Ray

892 F.2d 976
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 16, 1990
Docket88-5186
StatusPublished
Cited by53 cases

This text of 892 F.2d 976 (United States v. Antonio Fernandez, Jorge Recarey, Mariano Villa Del Ray) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Antonio Fernandez, Jorge Recarey, Mariano Villa Del Ray, 892 F.2d 976 (11th Cir. 1990).

Opinions

KRAVITCH, Circuit Judge:

Antonio Fernandez, Mariano Villa Del Ray, and Jorge Recarey were indicted on one count of conspiracy to illegally influence the operations of an employee-benefit plan. 18 U.S.C. § 371. Del Ray was further indicted for the substantive offense underlying the conspiracy count, and for aiding and abetting the same crime. 18 U.S.C. §§ 2 & 1954. Following a five-week joint trial, a jury convicted the appellants on all indicted crimes. We reverse all three convictions and remand for further proceedings.

I. BACKGROUND

During the period of the alleged conspiracy, appellant Fernandez was the president of Local 355 of the Hotel and Restaurant Employees Union and a trustee of the Local’s Culinary Fund; appellant Del Ray was the personnel director of Doral Hotels of Florida (whose employees were represented by Local 355) and was also a principal representative of the employer trustees of the Culinary Fund. Appellant Recarey is the brother of Miguel Recarey (“Miguel”), who was indicted along with the three appellants but fled prior to trial. The Culinary Fund was responsible for obtaining a contract with a health-care provider to attend to the health-care needs of the Local’s membership.

The government charged that Miguel agreed to pay Fernandez a total of $100,-000 for his assistance in retaining a healthcare contract between the Culinary Fund and International Medical Centers, Inc. (“IMC”), a health-maintenance organization controlled by Miguel. Miguel also hired Fernandez’s son, allegedly to prevent Fernandez from disclosing the scheme to the authorities. Recarey was enlisted to assist Miguel make payments to Fernandez. Finally, the government charged that Miguel paid Del Ray $40,000 for his assistance in securing the IMC-Culinary Fund contract.

Documentary evidence showed that Miguel placed Del Ray on the IMC payroll as a marketing representative, paying him approximately $5,000 from November 1980 to July 3, 1981 (July 1, 1981, was the effective date of the IMC-Culinary Fund contract); from July 3, 1981, to April 23, 1982, Del Ray earned the substantially higher salary of $35,000. Del Ray did not disclose to the trustees of the Culinary Fund his employment arrangement with IMC, and told IMC officers to act as if they did not recognize him at the meeting of the Culinary Fund trustees at which IMC made its proposal; Del Ray did however staunchly support IMC’s bid for the health-care contract in his capacity as a trustee of the Culinary Fund. Del Ray lost his job with IMC a few days after IMC lost the Culinary Fund contract.

[980]*980Evidence adduced against Fernandez showed that Miguel agreed to pay him $75,-000 in 1981 for his assistance in obtaining the contract. The government offered proof that in 1982, after the Culinary Fund trustees became dissatisfied with IMC’s performance, Fernandez accepted another $25,000 to help IMC maintain the contract. Further, the government sought to show that Miguel hired Fernandez’s son in consideration of Fernandez’s efforts on behalf of IMC.

The evidence marshalled against Recarey involved his cashing two IMC checks total-ling $75,000 to pay Fernandez; Recarey attempted to conceal his involvement in making these payments. Recarey later asked Miguel for an additional $25,000 for Fernandez.

II. ADMISSION OF GRAND-JURY TESTIMONY

The government’s case against Fernandez and Recarey was materially enhanced by the grand-jury testimony of Manuel Es-pinosa, a witness who had served as chief of security for IMC and had also been a close associate of Miguel. Espinosa died of natural causes five months after testifying before the federal grand jury that indicted appellants, but the district court ruled his grand-jury testimony admissible under the residual exception to the hearsay rule, Federal Rule of Evidence 804(b)(5). As a substitute for Espinosa’s trial testimony, the district court allowed the defense to introduce collateral evidence of Espinosa’s lack of credibility. Before we discuss Espino-sa’s grand-jury testimony and decide whether it was properly received into evidence, we review the law of Rule 804(b)(5).

Rule 804(b)(5) provides in pertinent part that:

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness [is not excluded by the hearsay rule] if the court determines that (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 best be served by admission of the statement into evidence.

The rule thus requires that statements admitted under its authority have “circumstantial guarantees of trustworthiness” equivalent to cross-examined former testimony, statements under a belief of impending death, statements against interest, and statements of personal or family history. These categories of information have attributes of trustworthiness not possessed by the general run of hearsay statements that tip the balance in favor of introducing the information if the declarant is unavailable to testify. See 4 J. Weinstein and M. Berger, Weinstein’s Evidence 11804(a)[01] at 804-35 (extra-judicial statement falling within a Rule 804(b) category is preferable to losing all evidence from that source).

Thus, admissible former testimony possesses a high degree of reliability because “both oath and opportunity to cross-examine were present in fact.” Rule 804 advisory committee’s note. Statements under a belief of impending death are rendered more trustworthy than other forms of hearsay because “it can scarcely be doubted that powerful psychological pressures” influence the declarant. Id. “[BJased on experience, logic, and common sense,” (Donnelly v. United States, 228 U.S. 243, 277, 33 S.Ct. 449, 461, 57 L.Ed. 820 (1913) (Holmes, J., dissenting)), we consider statements against interest reliable because “persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true.” Rule 804 advisory committee’s note. Finally, the exception sanctioning admission of statements of personal or family history “rests on the assumption that the type of declarant specified by the rule will not make a statement about the type of fact covered by the rule unless it is trustworthy.” 4 Weinstein’s Evidence, supra, 11 804(b)(4)[01] at 804-166.

The oath taken by the declarant is the only attribute possessed by grand-jury [981]*981testimony, as a class of information, that could raise its trustworthiness above the level of ordinary inadmissible hearsay. Garner v. United States, 439 U.S. 936, 938, 99 S.Ct. 333, 335, 58 L.Ed.2d 333 (1978) (Stewart, J., dissenting from denial of cer-tiorari).

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Bluebook (online)
892 F.2d 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-antonio-fernandez-jorge-recarey-mariano-villa-del-ray-ca11-1990.