United States v. Gregory Jenkins

579 F.2d 840, 3 Fed. R. Serv. 268, 1978 U.S. App. LEXIS 10767
CourtCourt of Appeals for the Fourth Circuit
DecidedJune 12, 1978
Docket76-1802
StatusPublished
Cited by17 cases

This text of 579 F.2d 840 (United States v. Gregory Jenkins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth 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. Gregory Jenkins, 579 F.2d 840, 3 Fed. R. Serv. 268, 1978 U.S. App. LEXIS 10767 (4th Cir. 1978).

Opinions

ALBERT V. BRYAN, Senior Circuit Judge:

On appeal is the conviction of Gregory Jenkins for making false material declarations on January 7, 1976 to a grand jury of the United States District Court for the District of Maryland at Baltimore. 18 U.S.C. § 1623.1 The jury was inquiring into any activities of one Jerra Lyles related to the illicit distribution of narcotics, especially with one Beatrice Johnson, alias “Miss B”. Error is assigned (1) to the receipt into evidence at trial of conversations between Johnson and Lyles in the absence of Jenkins and (2) to the conclusion of the Court that the allegedly perjurious testimony was material within the meaning of the statute. As we think the assignments are not well taken, we affirm.

Lyles, under investigation for conspiring to manufacture and distribute heroin in breach of 21 U.S.C. §§ 846, 841(a)(1), was overheard by an agent of the United States Drug Enforcement Administration, through an authorized wiretap, conversing with “Miss B” by telephone at 1:14 a. m. on July 26, 1975. The purport of the conversation was that she would meet Lyles within the hour at his home in the 1200 block of North Ellwood Avenue, Baltimore. DEA agents immediately placed a close watch there. Near the appointed hour they saw a van park directly in front of the house. They saw, too, a woman — known to them as “Miss B” and as the appellant Jenkins’ co-habiter of two years — leave the van and enter the house. The vehicle was later traced to Jenkins as having been borrowed from his employer that evening.

As a witness before the grand jury on September 24, 1975, Jenkins had been questioned on his movements in the first hours of July 26, 1975, when he was seen with Beatrice Johnson in the neighborhood of the Lyles residence. His testimony had been that he was endeavoring to see a friend living in the 1300 block of North Ellwood Avenue and that Johnson, just along for the ride, did not leave the van.

Discerning a difference between his and the agents’ statements, the jury recalled Jenkins on January 7, 1976. At this appearance he repeated his prior statement, averring that Johnson was along “just to ride across town” with him, but admitted that she did leave the van for about ten [842]*842minutes during his absence, coming back after he had returned. He still insisted that she had not told him that she had any other reason for accompanying him and that he did not know where she had gone.

In his trial on the perjury indictment, Jenkins gave yet a third account of his activity that night. It was that he first stopped in the 1300 block of North Ellwood Avenue to visit a friend and that, as he left, Johnson asked to visit friends in the 1200 block. In compliance, he then drove to the 1200 block, parked near the corner, and let her out of the van to go to her friend’s house while he waited. Shortly she returned and they departed.

The indicted statements of Jenkins before the grand jury were (a) that he gave a false reason for his driving Johnson to the 1200 block of North Ellwood Avenue and (b) that he gave a false account of the sequence of events surrounding her visit to the Lyles residence.

I.

Over Jenkins’ objections, transcripts of the intercepted telephone conversations between Johnson and Lyles were admitted in evidence against him at trial. The primary ground of his objections is that the statements by the two of them were inadmissible hearsay as to Jenkins, inasmuch as he was not a party to the conversations and was not present at either end of the line nor mentioned during them.I. 2 However, irrespective of the accuracy of their characterization by Jenkins as hearsay, we cannot agree with him as to the admissibility of the statements.

The trial judge cautiously and appropriately restricted the scope to be given this testimony, saying:

“In certain situations, evidence may be admitted not [sic] only for a particular, or for a limited purpose, and not for general purposes. You have heard, during the course of this evidence in this case certain tapes of telephone conversations that had been authorized by Court order, and you have seen also and heard the transcripts of those conversations, and they have been admitted into evidence as Government’s Exhibits . . .. The conversations were not admitted to establish the truth of the matters contained in those conversations, but only to indicate the purpose of the visit by Miss Johnson to the 1200 block North Ellwood. For that limited purpose, you may give it such weight as you may think it is entitled to.”

The sole function of the challenged tapes was to apprise the jury of “Miss B’s” state of mind — her knowledge that Lyles was waiting to complete a transaction with her and her intention to go to meet him. Given this knowledge and intention, the jury might reasonably infer, from the fact that Johnson and Jenkins appeared at Lyles’ residence very shortly thereafter, that Jenkins drove there because Johnson (the “Miss B”) had asked him to do so. If the jury reached this conclusion, it could properly conclude that Jenkins had lied about his reason for making the trip.

Insofar as elements of the taped conversations not directly expressing Johnson’s intent were offered to prove that intent, they were not hearsay, for the import of them was their effect on her and not their truth. See Fed.R.Evid. 801(c). Thus, Lyles’ statements offering to consummate a transaction that evening were admissible to explain her subsequent actions. United States v. Demopoulos, 506 F.2d 1171 (7 Cir. 1974), cert. denied, 420 U.S. 991, 95 S.Ct. 1427, 43 L.Ed.2d 673 (1975).

The only statement introduced on the issue of intent which, arguably, was for the truth of the matter therein expressed, and hence hearsay — Johnson’s closing remark, “I’m on my way” — nevertheless would be admissible under Rule 803(3) of the Federal Rules of Evidence,3 both to show her intent [843]*843and to promote an inference that she actually effectuated her intent and set out for Lyles’ house.

Precedent for the use of these communications, to which the accused was a stranger, is found in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295, 12 S.Ct. 909, 36 L.Ed. 706 (1892), which involved claims on insurance policies naming one Hillmon as the insured. The designated beneficiary, his wife, sought recovery on them, asserting that he had died accidentally while travel-ling through southern Kansas to camp at Crooked Creek.

A body had been found there and the question in suit was whether it was the body of Hillmon or of one Walters. The defendant insurer sought to prove that Walters was in the area where the body was discovered. As placing him there, letters written by Walters just previously were tendered in evidence but excluded by the trial court.

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United States v. Gregory Jenkins
579 F.2d 840 (Fourth Circuit, 1978)

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Bluebook (online)
579 F.2d 840, 3 Fed. R. Serv. 268, 1978 U.S. App. LEXIS 10767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gregory-jenkins-ca4-1978.