United States v. William Curro

847 F.2d 325, 1988 U.S. App. LEXIS 7140, 1988 WL 52058
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 26, 1988
Docket86-2028
StatusPublished
Cited by38 cases

This text of 847 F.2d 325 (United States v. William Curro) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. William Curro, 847 F.2d 325, 1988 U.S. App. LEXIS 7140, 1988 WL 52058 (6th Cir. 1988).

Opinions

RALPH B. GUY, Jr., Circuit Judge.

Defendant, Curro, was convicted of engaging in a racketeering enterprise, 18 U.S. C. § 1961(4), as well as various other related substantive offenses. On appeal, Curro claims the trial court erred in admitting into evidence the grand jury testimony of a witness who was deceased at the time of trial. Curro also claims the court erred in admitting certain co-conspirators’ statements. Upon a review of the record, we find no error and affirm.

I.

A detailed recitation of the facts is not necessary for consideration of the issue raised on appeal. Curro, along with several others, was indicted in a five-count indictment charging him with participation in a racketeering enterprise involving drugs, arson, counterfeit money, and theft from an interstate shipment. Conspiracy and various substantive offenses were also charged. While the pre-indictment investigation was being conducted, Edward Louz-on was called before the grand jury as a witness. Louzon, a convicted felon, was involved in criminal activities with some of the defendants in this case but was never prosecuted. Louzon made two grand jury appearances. At the first grand jury appearance, there is no indication that he had any type of immunity from prosecution. At his second appearance, it is clear that he had been promised immunity.

Subsequent to Louzon’s second grand jury appearance, but prior to trial in this case, he committed suicide. The government filed a Rule 804(b)(5) motion1 seeking [327]*327to have Louzon’s grand jury testimony admitted at trial as that of an unavailable witness. Over the objections of the defendant, the court granted the motion.

On appeal, defendant concedes that Louzon was “unavailable” and that the government gave proper notice. He also makes no serious challenge to the proposition that Louzon’s testimony was probative of material facts. Defendant primarily argues that the testimony was not trustworthy and that it was not “more probative ... than any other evidence which the proponent can procure through reasonable efforts.” We address these contentions seri-atim.

A.

On the issue of trustworthiness, defendant argues that Louzon had two reasons to falsify testimony. First, Louzon wanted to avoid prosecution himself and, second, he was angry with J.D. Thornton, one of the defendants. The starting point in our examination of this issue is that the district judge has broad discretion in determining whether statements from unavailable witnesses are trustworthy. United States v. Carlson, 547 F.2d 1346, 1354 (8th Cir.1976), cert. denied sub nom. Hofstad v. United States, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977). Based on a number of factors, we are inclined to agree with the district court that this testimony was trustworthy. To begin with, the testimony was extensively corroborated. 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). It was also voluntary. Barker v. Morris, 761 F.2d 1396, 1401 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986). Additionally, Louzon’s testimony, delivered at his second grand jury appear-anee, tracked the testimony of his first appearance. The testimony was given under oath and was never recanted. It involved matters about which Louzon had first-hand knowledge. At the second appearance, Louzon had use immunity and, thus, had additional motivation for telling the truth. It is also clear, as the district court observed, that by testifying before the grand jury Louzon put himself at risk, or at least felt he was at risk, either one of which is another indicator of reliability. Finally, the testimony itself was internally consistent and believable in light of other facts made apparent at trial.

As for the fact that Louzon was angry with J.D. Thornton, we first note that defendant Curro, and not Thornton, is the one raising the issue. Although Curro and Thornton were friends, there is no indication that any animus Louzon may have held toward Thornton washed over on Curro. In fact, there are many instances in Louz-on’s testimony when he clearly differentiates between the culpability and involvement of Curro and Thornton for various criminal acts.2 We find, as did the district court, that this testimony had “equivalent circumstantial guarantees of trustworthiness” as is required by Fed.R.Evid. 804(b)(5).

B.

Defendant’s argument that the testimony should not have been admitted because it was too well corroborated, merits little attention. To begin with, this argument is inconsistent with defendant’s arguments on trustworthiness where he contended there was insufficient corroboration. Second, when Rule 804(b)(5)(B) states that the statement offered should be “more probative ... than any other evidence which the proponent can procure through [328]*328reasonable efforts,” it is not intended to mean that corroboration is fatal to admission. Such a construction would fly in the face of the requirement that the statement be found to be trustworthy. The rule prohibits taking an unnecessary shortcut. If the prosecution can get equally good evidence from equally good sources, then they should not rely on the testimony of witnesses who will not be present and are not available for cross-examination. In 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), we had occasion to discuss Rule 804(b)(5) at length. Throughout this discussion it is made clear that corroboration is very important in weighing the question of admissibility, particularly where the testimony is “direct evidence of guilt or critical proof of guilt.” 693 F.2d at 962.

Since Louzon’s testimony before the grand jury related to several members of this criminal enterprise and also related to several different criminal acts, it was critical to the government’s establishment of the RICO charge elements. The mere fact that, in a case involving multiple parties and multiple offenses, there is some overlap between the testimony of available witnesses and a non-available witness does not result in a violation of the safeguard provisions of Rule 804(b)(5).

II.

Defendant’s argument as to claimed error in admitting co-conspirators’ statements under Fed.R.Evid. 801(d)(2)(E) has two components. Both implicate the 801(d)(2)(E) requirement that to be admissible such statements must be made “during the course and in furtherance of the conspiracy.” Curro first argues that, in making this determination, the court erred in considering the hearsay statements themselves as part of the calculus.

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Cite This Page — Counsel Stack

Bluebook (online)
847 F.2d 325, 1988 U.S. App. LEXIS 7140, 1988 WL 52058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-curro-ca6-1988.