Tom
York never made a dime
from his investment in the Just Friends Lounge.
Not even when he tried to collect the insurance
money. Two explosions rocked the bar during the
night of April 18, 1981, ripping the building
apart and burying York's
partner, Gail Maher, who lived in an apartment
above the bar, in the charred remains. There was
a $60,000 insurance policy on the bar and a
$50,000 policy on Maher's life;
York was the
beneficiary of both.
Suspecting
foul play, Maher's family contested
York's claim to the
insurance proceeds. The federal government
shared the family's suspicions; it indicted
York for attempting to
defraud the insurance company by means of arson
and murder. The jury convicted.
York bought the bar in
June 1979, and leased it to Maher. She ran
things, but not well. Just Friends was in the
red from the day it opened, and Maher had to
borrow over $30,000 from York
to stay afloat. In addition,
York, who was handy with tools, took care
of the maintenance work himself. Still, Maher
couldn't keep up with her bills. She never paid
any money back to York,
and by April 18, 1981, she was behind on every
debt the bar had incurred.
By August
1980, York was over
$80,000 in debt and had had enough. He tried to
list the business for sale, but the agency
required Maher's signature on the listing
agreement and she refused.
York didn't know that back in June Maher
had neglected to exercise a five-year option on
the Lounge's real estate lease; without the
long-term lease, the business had little resale
value.
York contacted the
Allstate Insurance Company to obtain life
insurance policies for himself and Maher in
October 1980. He told the insurance agent that
he was calling on the advice of his lawyer and
his accountant, but neither had ever advised
York to obtain
insurance on his own or Maher's life.
York
requested a double-indemnity provision in his
own policy (doubling the payout in the event of
death by nonnatural causes); the insurance agent
assumed that York
wanted Maher's policy to be identical and
included the double-indemnity provision in her
application as well. Maher was overweight,
however, and Allstate declined to insure her
until a minor medical condition had cleared up.
When Allstate
approved a second application in February 1981
it refused to issue a term policy with the
double-indemnity provision. Allstate agreed only
to issue a whole life policy that carried a
significantly higher premium.
York paid it anyway. At about the same
time, York made himself
the co-beneficiary, along with Maher, of an
existing policy on the bar's assets.
By this time,
York and Maher were
plotting to torch the bar to collect the
insurance proceeds. Maher told a friend, Carol
Mroch, who worked as a waitress at the lounge,
about the plan that would put Mroch out of a job.
Not to worry, though, Maher reassured Mroch; she
and York would give
Mroch $1,000 severance pay if the plan came to
fruition. Maher also confided in another friend,
John Etscheid. She told him that she and
York planned to blow up
the lounge by means of a natural gas explosion.
They were going to have a dry run of the plan,
she said, in April.
Maher spent
the day of April 18 cleaning the Lounge.
Although the bar was normally open seven days a
week, it was shuttered on that Saturday night.
York was seen at the
bar in the afternoon. He parked his station
wagon in the lot and made several trips into the
lounge, carrying boxes with him.
At Maher's
request, her daughter Tammy spent the night at
the home of Kim Bunting, Maher's sister. Tammy
took but one change of clothes with her and left
a treasured pet bird at home. According to
Bunting, Maher told her that she didn't want
Tammy in the lounge Saturday at all.
The Just
Friends Lounge blew up that night. There were
two explosions, both caused by homemade devices.
One was a pipe bomb made from a length of steel
pipe about ten inches long, capped at both ends.
The pipe was filled with explosives and an
initiating mechanism, attached to a household
timer, was inserted through a small hole drilled
in the side.
The second device caused a
natural gas explosion. The plug on the gas line
leading into the basement of the Lounge had been
removed, allowing gas to fill the room. A
Kentucky Fried Chicken container filled with a
flammable liquid was placed on a table and was
ignited by means of a household timer and an
electrical transformer. When the liquid ignited,
so did the gas.
The explosions
and fire made it difficult to determine whether
Maher had been killed by the blast; the experts
disagreed about whether she had been beaten to
death first. York was
at home later that night when Maher's father,
Richard Schottenloher, called him with the news
of the explosion.
When
York arrived at the
Lounge, Schottenloher saw that he was wearing an
elastic bandage around one hand.
York said nothing,
other than to complain of a headache. He did not
inquire about Gail Maher's whereabouts or
condition.
York did not attend the
funeral. When Kim Bunting called
York to ask why the
family had not received any word or gesture of
condolence from him, York
offered an excuse--a family trip to Mexico that
had been arranged several months before, he said,
prevented him from attending the funeral--and
then began to quiz Bunting about the police
investigation and the condition of Maher's body
when it was found. How badly was her face burned?
Had her right arm disintegrated as he had heard?
Had she been very close to the explosion? Who
had identified the body? Did Bunting know about
Maher's debts to people associated with the
Mafia? Nonplussed, Bunting told
York that all she cared
about was finding Gail's killer; there was an
icy silence on the line when she asked
York if he shared her
concern.
This
conversation fueled Bunting's suspicions of
York; shortly afterward,
she wrote to Allstate on behalf of her niece
Tammy, contesting York's
claim to Maher's insurance proceeds.
No one had contested
York's claim to the
insurance proceeds York
collected three years before, after his first
wife, Maureen Jurkiewicz, was murdered.
York was the
beneficiary of Jurkiewicz's life insurance
policy when she was killed.
That policy
was with the Allstate Insurance Company, for
$50,000, and included a double-indemnity clause.
Police found the body of York's
wife decomposing in a small creek some two weeks
after she disappeared in May 1978. Jurkiewicz
had disappeared one day after she wrote the
following note to York:
Tom, I'm past
talking. Couldn't get in touch with the lawyer
today, but will Monday if I have to sit on the
phone one hour on hold. I don't care if the
phones at work are ringing off the hook. I asked
Laurie Gentile to drive Ann to the tutor
Saturday after I was accused of trying to bribe
you to take you own daughter to a tutor so
she'll pass. Laurie will drive her. It's taken
care. It's not your concern anymore. You have
endured great injustices all these years. Now
it's over. Don't wash any clothes. Don't cook
any food. Don't go for groceries. Don't do
anything. Just get out of my life completely.
She had been
shot once through the left temple.
York owned a gun, but
the bullet that killed his wife had fragmented
and could not be traced to a particular weapon.
No other evidence was found when the body was
recovered.
York was apparently the
last person to see his wife alive. Deanne
Gentile, Jurkiewicz's cousin, spoke with her by
phone for about twenty minutes just before
midnight on the night of May 6, 1978.
According to
Gentile, Jurkiewicz's tone changed abruptly near
the end of their conversation. When she called
Jurkiewicz back twenty minutes later,
York answered. Gentile
asked for Jurkiewicz; York
told her that her "goddamn cousin" had probably
gone out to get a newspaper. Gentile knew from
the earlier conversation, however, that
Jurkiewicz had purchased a paper earlier in the
evening.
York
told the same story to the police the next day
when he reported his wife missing. His wife, he
told police, must have left the house before
11:00 p.m. because that was when the store
closed. York told a
different story to his wife's employer, however.
His wife was late to work, he said, because she
had taken their children to church. He told yet
another story to his daughter. Her mother, he
said, had been taken hostage at work by robbers
who had taken her money and jewelry and then
shot her.
York told the police
nothing else, and instructed his children not to
talk to the police or family members about their
mother's disappearance. Shortly after his wife's
body was found, York
took his children to Disney World.
York was never charged
with killing his wife. In May 1986, however, a
federal grand jury indicted
York, charging that he had used the mails
in an attempt to defraud the insurance company
by blowing up the Just Friends Lounge and
killing Maher, and that he had committed arson.
At a hearing before the trial,
York's son Tommie invoked his fifth
amendment privilege against self-incrimination
and refused to answer substantive questions
about the events surrounding Maher's death.
After the
hearing, while the parties were still in the
courtroom, York
screamed at his son, saying "You're going to put
me in jail. You're going to let these people put
me in jail, goddamn it." On the way home,
York threatened his
son, telling him that he would kill him if he
didn't testify that statements Tommie had made
earlier to government agents were false. When
they next returned to court, Tommie told his
probation officer what had happened and asked to
be taken into protective custody.
During the
trial, York tried to
influence his daughter's testimony as well. He
told his daughter Ann that she would have to
testify that he was home on the night of Maher's
death. Ann replied that she didn't remember
whether or not her father was home that night,
angering York. Later,
he tried again:
York: Ann, I'll have to
ask you to say that you remember me home that
night.
Ann: But, Dad, I don't remember.
York: Goddamn it, don't
you fucking realize that we could lose this
house, and I could go to jail?
Ann: But, Dad,
that's lying. Isn't that perjury?
York: Don't sit there
with that smile on your face. I hope your kids
do to you what you've done to me.
Both of
York's children also
testified that York had
around the house all of the materials necessary
to construct the bombs found in the ruins of the
Just Friends Lounge. Ann York
also testified about the events surrounding her
mother's disappearance. She remembered only a
few details: waking up in the middle of the
night and hearing doors open and shut repeatedly;
the replacement shortly after her mother's
disappearance of an old couch that had been used
in the basement.
The jury
convicted York in
February 1987, and the district court sentenced
him to thirty years in prison. We reversed the
conviction, however, and remanded the case for a
new trial because hearsay evidence had been
improperly admitted against
York. United States v.
York, 852 F.2d 221 (7th Cir.1988).
While
York was in prison
awaiting retrial, another inmate, Carl Beaman,
reported to the FBI that York
had told him that he had killed a woman and
blown up a bar to collect insurance money.
York, said Beaman, also
told him that he had killed his first wife,
shooting her in the back of the head.
York had made these
statements to Beaman several months before
Beaman reported them; Beaman testified that he
didn't believe them until another inmate read to
him a newspaper article about
York's case that, Beaman said, confirmed
what York had told him.
York's
second trial took place during the summer of
1989. Before trial the government obtained a
superseding indictment that added a charge of
obstruction of justice, based on the threats
York made to his son
before the first trial, to the charges contained
in the original indictment. The jury again
convicted York on all
counts, and the judge sentenced
York to forty years in
prison, the obstruction charge accounting for
the ten-year increase from
York's first sentence.
York
filed this appeal, alleging seven grounds for
reversal. He first maintains that evidence
relating to other crimes, particularly his first
wife's murder, was improperly admitted; second,
that admitting Carl Beaman's testimony violated
his sixth amendment right to counsel; third,
that Gail Maher's statements to Carol Mroch and
John Etscheid should have been excluded as
hearsay and that their admission violated the
confrontation clause of the sixth amendment;
fourth, that the government was trying to
unlawfully punish him for his successful appeal
of his first conviction by adding the
obstruction of justice count to the indictment
before the second trial; fifth, that the
government's voir dire of a defense witness was
improper; sixth, that the entire jury venire was
tainted and should have been dismissed; and last,
that the district court's jury instructions on
mail fraud were erroneous.
York contests the
admission of evidence relating to his first
wife's murder on the grounds that the evidence
was irrelevant and unduly prejudicial. We note
at the outset that we review decisions to admit
evidence only to determine whether by admitting
the evidence the district court abused its
discretion; we traditionally accord "special
deference to the evidentiary rulings of the
trial court." United States v. Shukitis, 877
F.2d 1322, 1327 (7th Cir.1989); United States v.
Briscoe, 896 F.2d 1476, 1489-90 (7th Cir.), cert.
denied, --- U.S. ----, 111 S.Ct. 173, 112 L.Ed.2d
137 (1990). The issue before us is not whether
we would have admitted the challenged evidence,
but whether the district court offered a
principled basis for its decision. United States
v. Beasley, 809 F.2d 1273, 1279 (7th Cir.1987).
The district
court admitted evidence of the Jurkiewicz murder
under Rule 404(b), which provides that:
Evidence of
other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to
show action in conformity therewith. It may,
however, be admissible for other purposes, such
as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake or accident.
Rule 404(b)
proscribes the admission of acts of the
defendant only when they have no relevance other
than to show that a defendant had a criminal
predisposition to commit the crime charged.
York asserts that the
evidence of his wife's murder should not have
been admitted because the government offered it
solely to convince the jury that he killed her,
and so likely killed Gail Maher as well.
The government
maintains that the evidence was admissible under
rule 404(b) because it showed that
York intended to
defraud the insurance company by killing Maher;
York, the government
contends, had pulled off the same scheme three
years earlier when he killed his wife and
collected the proceeds of her insurance policy.
York counters that
there was no evidence to suggest that he
purchased an insurance policy for his wife
intending to do her in; the evidence was
irrelevant, he submits, because the government's
theory was that he killed her after she told him
she was divorcing him. York
also points out that he and Jurkiewicz had
purchased reciprocal policies when they were
first married, several years before the murder,
disproving the government's hypothesis that he
had purchased that policy with an ulterior
motive.
The government
parries by asserting that even if
York didn't have murder
in mind when he and Jurkiewicz originally bought
their policies, the Jurkiewicz murder shows that
York discovered that he
could successfully "kill someone, conceal that
crime and collect the insurance money." Brief at
23 n. 10. That fact, says the government, is
relevant to show that York
intended the same result three years later when
he again collected the proceeds of a murder
victim's insurance policy.
We agree--with
both parties. There is little doubt that the
Jurkiewicz murder evidence helped convince the
jury of both propositions: that
York was someone
predisposed to commit murder and that he was
planning all along to kill Maher and collect on
her insurance policy when he and Maher purchased
reciprocal policies because having successfully
collected on his wife's policy after killing her
three years earlier, he was planning to do the
same to Maher.
The
government's assertion that the Jurkiewicz
murder evidence has nothing to do with character
or propensity overstates its case. "Almost any
bad act evidence simultaneously condemns by
besmirching character and by showing one or more
of 'motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake
or accident', not to mention the 'other purposes'
of which this list is meant to be illustrative."
Beasley, 809 F.2d at 1279.
Whatever its
legitimate probative value, when considering
extrinsic act evidence the jury is also
susceptible to the inference that, simply
because the defendant committed other crimes or
disreputable acts, he is by nature more likely
to have committed the crime charged. And the
strength of this forbidden inference is at least
roughly correlated to the infamy of the
extrinsic act; if York
was so evil as to murder his wife, the jury
could have reasoned, he wouldn't have thought
twice about doing in a business associate.
The jury could
also have drawn legitimate inferences from the
evidence. Simply put, the Jurkiewicz evidence
was relevant to show that York
intended to defraud the insurance company when
he purchased and collected on Maher's policy.
Mail fraud is a specific intent crime, United
States v. Draiman, 784 F.2d 248, 254 (7th
Cir.1986), and to convict York
on that charge the government had to prove that
York intended to
collect the proceeds of Maher's policy by means
of a material misrepresentation or omission--in
this case, by neglecting to inform the company
that he had planned and carried out Maher's
murder. See, e.g., Metropolitan Life Ins. Co. v.
Estate of Cammon, 929 F.2d 1220, 1221 (7th
Cir.1991) ("Just as an insurer is entitled to
know about diseases that affect the life
expectancy of the insured, so it is entitled to
know about other, more immediate risks, such as
impending homicide.").
That
York had, three years
earlier, successfully defrauded an insurance
company by collecting the proceeds of a policy
held by his victim is compelling evidence that
York intended the same
result when he purchased an almost identical
policy on Maher's life and made himself the
beneficiary. Dean Wigmore's "doctrine of chances"
tells us that highly unusual events are highly
unlikely to repeat themselves; "the recurrence
of a similar result ... tends to establish ...
the presence of the normal, i.e. criminal,
intent accompanying such an act...." 2 J.
WIGMORE, EVIDENCE Sec. 302 at 241 (Chadbourn
rev.1979). The man who wins the lottery once is
envied; the one who wins it twice is
investigated. It is not every day that one's
wife is murdered; it is more uncommon still that
the murder occurs after the wife says she wants
a divorce; and more unusual still that the
jilted husband collects on a life insurance
policy with a double-indemnity provision.
That the same
individual should later collect on exactly the
same sort of policy after the grisly death of a
business partner who owed him money raises
eyebrows; the odds of the same individual
reaping the benefits, within the space of three
years, of two grisly murders of people he had
reason to be hostile toward seem incredibly low,
certainly low enough to support an inference
that the windfalls were the product of design
rather than the vagaries of chance. See United
States v. Woods, 484 F.2d 127 (4th Cir.1973),
cert. denied, 415 U.S. 979, 94 S.Ct. 1566, 39
L.Ed.2d 875 (1974) (evidence that nine other
children had suffered episodes of cyanosis while
in custody of defendant held admissible to prove
that defendant killed tenth child "because of
the remoteness of the possibility that so many
infants in the care and custody of defendant
would suffer cyanotic episodes and respiratory
difficulties if they were not induced by the
defendant's wrongdoing"). This inference is
purely objective, and has nothing to do with a
subjective assessment of York's
character.
The fact that
York's defense included
innocent explanations for having insurance on
Maher's life and for some of his activities
after Maher's death underscores the relevance of
the Jurkiewicz murder evidence to
York's intent during
the Maher episode.
When the
defendant affirmatively denies having the
requisite intent by proffering an innocent
explanation for his actions, the government is
entitled to rebut that argument. "Evidence of
another crime which tends to undermine
defendant's innocent explanations for his act
will be admitted." J. WEINSTEIN & M. BERGER,
WEINSTEIN'S EVIDENCE, Sec. 404, at 404-84
(1990); see, e.g., United States v. Leight, 818
F.2d 1297, 1303 (7th Cir.), cert. denied, 484
U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987);
United States v. Tuchow, 768 F.2d 855, 862 (7th
Cir.1985); United States v. Chaimson, 760 F.2d
798, 806 (7th Cir.1985).
Courts
routinely admit evidence of prior insurance
frauds to prove a present intent to defraud an
insurance company. See, e.g., United States v.
Draiman, 784 F.2d 248, 254 (7th Cir.1986);
United States v. Basile, 771 F.2d 307, 311 (7th
Cir.1985); United States v. Wormick, 709 F.2d
454, 459 (7th Cir.1983); United States v.
Marroquin, 885 F.2d 1240, 1247 (5th Cir.1989),
cert. denied, --- U.S. ----, 110 S.Ct. 1807, 108
L.Ed.2d 938 (1990); United States v. Campbell,
845 F.2d 1374, 1381 (6th Cir.), cert. denied,
488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 248
(1988); United States v. Gordon, 780 F.2d 1165,
1173-74 (5th Cir.1986); United States v. Jackson,
761 F.2d 1541, 1543 (11th Cir.1985); United
States v. Fitterer, 710 F.2d 1328, 1332 (8th
Cir.), cert. denied, 464 U.S. 852, 104 S.Ct.
165, 78 L.Ed.2d 150 (1983). That
York's schemes involved
murder does nothing to diminish the probative
force of the inference. We have, on a number of
occasions, upheld the admission of evidence of
prior murders, or attempts, when they were
probative of an issue other than criminal
disposition. See, e.g., Lee v. Flannigan, 884
F.2d 945, 953 (7th Cir.1989), cert. denied, ---
U.S. ----, 110 S.Ct. 3277, 111 L.E.2d 786
(1990); Leight, 818 F.2d at 1304; United States
v. Fountain, 768 F.2d 790, 796 (7th Cir.1985),
cert. denied, 475 U.S. 1124, 106 S.Ct. 1647, 90
L.Ed.2d 191 (1986); United States v. Hattaway,
740 F.2d 1419, 1425 (7th Cir.), cert. denied,
469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708
(1984). And although we have not previously been
confronted with a case combining the elements of
murder and insurance fraud, the Eighth Circuit
has, and has upheld the admission of the
extrinsic murder evidence each time. See United
States v. Engleman, 648 F.2d 473, 478-79 (8th
Cir.1981); United States v. Calvert, 523 F.2d
895, 908 (8th Cir.1975), cert. denied, 424 U.S.
911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976).
York objects that the
Jurkiewicz murder evidence is not similar enough
to the events surrounding Maher's murder to be
relevant to show intent, but he is looking at
trees rather than the forest. Both crimes were
attempts to defraud an insurance company by
murdering women who had named
York as the beneficiary of their life
insurance policies. This is similarity enough to
make the Jurkiewicz evidence probative of intent.
As we have noted in the past, when evidence is
offered to prove intent, " 'the degree of
similarity is relevant only insofar as the acts
are sufficiently alike to support an inference
of criminal intent.' ... The prior acts need not
be duplicates of the one for which the defendant
is now being tried." United States v. Radseck,
718 F.2d 233, 237 (7th Cir.1983), cert. denied,
465 U.S. 1029, 104 S.Ct. 1291, 79 L.Ed.2d 693
(1984) (quoting United States v. O'Brien, 618
F.2d 1234, 1238 (7th Cir.), cert. denied, 449
U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980)).
We need not
rely solely on the most obvious similarities
between the crimes. When viewed in the context
of a mail fraud scheme, the specific
characteristics of the two crimes clearly
reinforce the government's premise that
York orchestrated both
plans. In both cases, York
purchased a $50,000 life insurance policy on the
victim. The policy on his wife included a double-indemnity
provision that doubled the payout in the event
that the insured's death was due to nonnatural
causes.
The original
application for Maher's policy contained a
similar provision, but the company refused to
provide double-indemnity coverage for Maher
because she was significantly overweight.
York collected on each
policy at a time when he faced some prospect of
financial harm, in the first case, divorce, and
in the second, the failure of the Just Friends
Lounge. Maher was, in all likelihood, killed in
the bar, which doubled as her home; the jury
could have reasonably inferred that
York killed Jurkiewicz
in their home as well.
In both cases,
too, physical evidence relating to the murders
was obliterated: Jurkiewicz had been dumped into
a creek after she was killed, and the explosions
and fire that destroyed the lounge made it
impossible to determine precisely how Maher died.
After the deaths of Jurkiewicz and Maher,
York let his own
insurance lapse. After both deaths,
York, a former police
officer, instructed his children not to talk
with the police or anyone else about the
incidents. Shortly after both murders,
York took his family
away, once to Florida and once to Mexico.
The
similarities between Jurkiewicz's death and
Maher's could, of course, be nothing more than a
gruesome coincidence, but that isn't the point.
We need not determine whether this evidence,
standing alone, would have been sufficient to
convict York; if the
evidence increases the probability that
York committed the
crime, it is, by definition, relevant. See
FED.R.EVID. 401 ("Relevant evidence" defined as
"evidence having any tendency to make the
existence of any fact ... more probable or less
probable than it would be without the evidence").
The dual
nature of extrinsic act evidence, standing alone,
is not reason to exclude it. The evidence of
Maureen Jurkiewicz's death makes it more likely
that York killed Gail
Maher; that is all that Rule 404(b) requires.
Rule 404(b) excludes evidence only when it is
not relevant to prove something other than the
defendant's bad character; "[i]f offered for
such a proper purpose, the evidence is subject
only to general strictures limiting
admissibility such as Rules 402 and 403."
Huddleston v. United States, 485 U.S. 681, 688,
108 S.Ct. 1496, 1500, 99 L.Ed.2d 771 (1988).
Rule 402
excludes irrelevant evidence, and "similar act
evidence is relevant only if the jury can
reasonably conclude that the act occurred and
that the defendant was the actor." Id. at 689,
108 S.Ct. at 1501; see also United States v.
Montoya, 891 F.2d 1273, 1284 (7th Cir.1989).
This does not mean, as York's
brief suggests, that the government must prove,
or that the trial court must find, that the
defendant committed the other acts by a
preponderance of the evidence. Huddleston is
clear on this point:
In determining
whether the Government has introduced sufficient
evidence ... the trial court neither weighs
credibility nor makes a finding that the
Government has proved the conditional fact by a
preponderance of the evidence. The court simply
examines all the evidence in the case and
decides whether the jury could reasonably find
the conditional fact ... by a preponderance of
the evidence.
485 U.S. at
690, 108 S.Ct. at 1501. We determine only
whether the jury could by a preponderance have
reasonably determined that the other act
occurred. This inquiry is no different than any
sufficiency of the evidence challenge and the
party challenging admissibility has the heavy
burden of showing that no reasonable jury could
have reached the same conclusion.
The government
presented more than enough evidence to satisfy
this "minimal" standard. Id. Carl Beaman
testified that while awaiting retrial,
York confessed to him
that he had shot his wife in the head, and that
testimony alone is sufficient to support a
verdict that York
killed his first wife. See United States v.
Ostrowsky, 501 F.2d 318, 323 (7th Cir.1974) ("All
that was needed to satisfy the clear and
convincing standard was the admission by [defendant]
to [the witness] that he had killed [the victim]."
(emphasis added)).
York's counsel offers a
strong impeachment argument, but we cannot say
that it would have been unreasonable for a jury
to credit Beaman's testimony. The district judge
found Beaman sufficiently credible to permit him
to testify during the trial, and at sentencing
specifically cited his testimony as a basis for
her conclusion that York
had murdered Maureen Jurkiewicz. We are in no
position to quarrel with her assessment of
Beaman's testimony.
Even had a
jury disregarded Beaman's testimony altogether,
it could have still concluded that
York killed his first
wife. On the day before her death, Jurkiewicz
wrote York a note
telling him to get out of her life.
York was apparently the
last person to see his wife alive, had access to
a gun, and told a series of bizarre and
inconsistent stories about his wife's
disappearance to family members, police, and his
wife's employer.
York instructed his
children not to talk to anyone, including the
police, about their mother's death; he took them
to Disney World in Florida soon after the murder
was discovered. York
disposed of and replaced a basement couch "immediately"
after his wife disappeared. And, of course,
York was the
beneficiary of his wife's life insurance policy.
Considering this evidence in its entirety,
Huddleston, 485 U.S. at 690-91, 108 S.Ct. at
1501-02, a jury reasonably could have concluded
that York killed his
first wife and successfully concealed his guilt;
admission of the evidence relating to her murder
was therefore proper under rule 404(b).
York also challenges
the evidence on the ground that it was unduly
prejudicial. The text of Rule 403 makes plain
that its application is limited to cases in
which the probative value of the evidence is "substantially
outweighed" by its improper effect. See also 22
C. WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND
PROCEDURE Sec. 5221, at 309-10 (1978). Assessing
the relative impact of the legitimate and
illegitimate inferences supported by evidence is,
at best, an imprecise task, one that, to a large
extent, requires a contemporaneous assessment of
the presentation, credibility, and impact of the
challenged evidence. We therefore accord great
deference to the district judge's decision to
admit or exclude evidence under Rule 403.
York's argument under
Rule 403 largely reiterates his view that the
Jurkiewicz murder evidence had scant probative
value, but we have already addressed that side
of the admissibility equation. The evidence was
highly relevant to York's
intent. To successfully invoke Rule 403 at trial,
York must demonstrate
that the impact of the illegitimate inference
guaranteed by this evidence--once a
murderer, always a
murderer--was
significantly stronger than that of the
legitimate inference the evidence supports--that
York believed he could
successfully defraud Allstate by killing Maher
because he had done it before when he killed
Jurkiewicz. To invoke Rule 403 on appeal,
York must also
demonstrate that the district court's
determination that the illegitimate impact did
not substantially outweigh the legitimate impact
was so unprincipled that the decision to admit
the evidence amounted to an abuse of the
discretion.
York cannot make that
case. Judge Williams considered
York's Rule 404(b) and
Rule 403 objections to the Jurkiewicz evidence
before trial and issued a careful and considered
opinion explaining her reasons for admitting the
evidence. She concluded that the evidence was
highly probative and not unfairly prejudicial to
the defendant.
The judge
noted that extrinsic crime evidence is not made
unfairly prejudicial simply because it relates
to a murder; the prejudice that inures from that
fact is the natural by-product of the act and
there is nothing unfairly prejudicial about
putting that fact before the jury. Judge
Williams correctly observed that the unfairness
derives from attempts to exploit the "gruesome
and unnecessary details" of a murder. Ostrowsky,
501 F.2d at 323.
York cites Ostrowsky to
support his claim since in that case we excluded
evidence of a prior murder on Rule 403 grounds.
In Ostrowsky, however, we made clear that our
holding was premised not on the fact that the
prior crime was a murder, but on the nature of
the proof and the presentation of the evidence
relating to the murder. Id.
Moreover, the
court held only that some of the extraneous
evidence of the murder should have been excluded
as unnecessarily cumulative; some of the murder
evidence, the court held, had been properly
admitted. Id. York has
not objected that the government's Jurkiewicz
murder evidence was cumulative; that argument
would have undermined his claim that there was
insufficient evidence linking
York to the murder to satisfy the
standard of proof required by Huddleston.
The district
court did not make the mistake of admitting
extraneous details about the prior murder in
this case. The court admitted only three facts,
via testimony, relating to the details of the
murder itself: (1) that the body was found
floating in a creek; (2) that the body was
completely nude except for a wristwatch that had
stopped at 4:05; and (3) that Maureen Jurkiewicz
had been shot in the head. The trial judge
affirmatively excluded, on grounds of undue
prejudice, evidence relating to the condition of
the body when it was found and Tommie
York's opinion that his
father killed his mother (which was relevant to
explain why he at one point recanted statements
made earlier to the government).
Moreover, the
judge repeatedly issued limiting instructions
for the evidence that related to Jurkiewicz's
murder and to York's
actions before and afterward. The court's strict
control of the admission and presentation of the
extrinsic evidence and vigilant efforts to
minimize its prejudicial impact stand in
dramatic contrast to the handling of extrinsic
murder evidence cited by the defendant in
Ostrowsky. When trial courts exercise this
degree of care, we have not hesitated to admit
extrinsic evidence, even when it relates to
truly reprehensible crimes.
As we observed
in United States v. Covelli, unlike the
situation in Ostrowsky, the court consistently
allowed only necessary evidence to be introduced
and ruled that "gory details" of the murder
could not be admitted. No photographs of the
victim or the crime scene were seen by the jury....
It is clear that the district court carefully
balanced the evidence in terms of its probative
value and prejudicial effect. On balance we are
persuaded that the district court did not abuse
its discretion in admitting this evidence.
738 F.2d 847,
855 (7th Cir.), cert. denied, 469 U.S. 867, 105
S.Ct. 211, 83 L.Ed.2d 141 (1984).
We also note
that this is not a case like Ostrowsky where the
nature of the extrinsic evidence was
qualitatively different than that of the acts
charged in the indictment. It does not,
therefore, pose the same degree of danger that
the jury will reason that because the defendant
committed a heinous crime on some other occasion,
he wouldn't have thought twice about committing
some lesser offense. Indeed, the evidence
relating to Maureen Jurkiewicz's death paled in
contrast to the evidence presented regarding the
death of Gail Maher.
The cause of
Maher's death was contested (the defense theory
being that she was killed by the explosion while
committing an arson; the prosecution arguing
that York killed Maher
first and then blew up the lounge), and
consequently both sides presented detailed
evidence as to the injuries sustained by Maher,
including photographs and X-rays taken during
two autopsies of Maher's body.
The unfair
prejudice that could have inured against the
defendant by the sanitized and tightly
controlled presentation of evidence relating to
Jurkiewicz was minimal in light of the grisly
nature of the evidence presented relating to
Maher's death.
York's claim that the
Jurkiewicz evidence was unfairly prejudicial is
based, in large measure, on the fact that much
of it was derived from witnesses related to
York, namely his
children and relatives of Maureen Jurkiewicz.
The testimony of these witnesses,
York asserts, was
extremely emotional and, therefore, highly
prejudicial. He is, no doubt, correct. But we
don't bar those close to a defendant from
testifying against him on the ground that their
damning testimony carries too much weight with
the jury (even the spousal privileges rest on
policy grounds--respecting the sanctity of
marriage--rather than grounds of undue prejudice).
Moreover, many of the witnesses
about which York
complains--his children, in particular--would
have been called to testify about events
surrounding the death of Gail Maher even had the
court excluded all evidence of the Jurkiewicz
murder. Much of the antagonism and emotion that
attended their testimony would doubtless have
still been present.
Tommie
York, for example,
testified that his father had threatened to kill
him after he invoked the fifth amendment at his
father's first trial. He and his sister Ann both
testified that York
wanted their testimony at his first trial--in
which evidence of their mother's death was not
admitted--to exonerate him.
York demanded that Ann testify that he
had been home "that night," even though she told
him that she did not remember if he was at home.
This testimony, quoted at the outset of this
opinion, was dramatic.
Tommie
York also testified
that his father wanted him to say that he gave
damaging information to the government only
because he was mad at his father for throwing
him out of the house. This testimony undoubtedly
alerted the jury that York's
relationship with his family was not all that it
could be; their testimony concerning the events
surrounding their mother's death probably
solidified that conclusion, but it is one the
jury would likely have drawn either way.
In sum, the
evidence of the Jurkiewicz murder was relevant
to York's intent, and
Judge Williams did all that she could to focus
the jury's consideration of the evidence on that
issue. She concluded that, on balance, the
evidence presented would not prompt the jury to
disregard her instructions, and we agree. Her
decision to admit the evidence was anything but
an abuse of discretion.
York also contests the
admission of evidence that he had tampered with
the electric meter at his home. The government
presented evidence that at least as far back as
1979 York had devised a
means of preventing the electric meter at his
home from recording electricity use.
York accomplished this
by drilling a small hole through the cover of
the meter and inserting a piece of straw through
the hole and into a hole in one of the meter
gears. The Commonwealth Edison representative
who discovered the tampering described
York's technique as "a
very unique way" of reducing his electric bill--"so
simple yet so effective."
The government
argued that the evidence was probative of
York's knowledge about
electrical devices and tools, and the judge
admitted the evidence with an instruction
directing the jury to consider it only for that
purpose. York argues
that the judge should have excluded this
evidence because it proved no more than that
York "knew how to use a
drill."
Whether
York knew how to use a
drill, however, was relevant to whether he was
capable of building the pipe bomb and detonating
mechanism that destroyed the lounge. More
importantly, the evidence demonstrated
York's knowledge about
the workings of a relatively complicated
electrical device.
York knew enough about
the workings of his electric meter to devise a
means of stopping the meter that escaped
detection for several years, one so ingenious
that the Commonwealth Edison representative who
discovered it had never before seen a meter
stopped in that manner.
To
counterbalance the probative value of this
evidence, York offers
only a conclusory statement that the evidence
was unfairly prejudicial, presumably because it
related to illegal activity. As we have already
noted, however, that fact alone does not make
evidence unduly prejudicial.
Moreover, it
seems unlikely that the jury would draw from
this evidence the forbidden inference that,
because he was the sort who would tamper with
his electric meter, he was also the sort who
would murder a business associate to collect on
her insurance. The effect of any unfair
prejudice engendered by the admission of this
evidence was minimal, and the judge did not
abuse her discretion by admitting it.
At
York's first trial, the
government did not include evidence relating to
his wife's death as part of its case. After Carl
Beaman reported York's
confessions to the FBI, however, the government
concluded that it had enough evidence relating
to York's involvement
in that murder to introduce it. Beaman's
testimony then became an important aspect of the
government's case. York
argues that the testimony should not have been
admitted because Beaman elicited the
incriminatory statements from him while acting
as a government agent, violating his sixth
amendment right to counsel.
In Massiah v.
United States, 377 U.S. 201, 84 S.Ct. 1199, 12
L.Ed.2d 246 (1964), the Supreme Court held that
government agents had violated the sixth
amendment right to counsel of the defendant by "us[ing]
against him at his trial evidence of his own
incriminating words, which federal agents had
deliberately elicited against him after he had
been indicted and in the absence of his counsel."
Id. at 206, 84 S.Ct. at 1203. To find a sixth
amendment violation, then, the statements in
question must have been (1) "deliberately
elicited" (2) by a government "agent." United
States v. Taylor, 800 F.2d 1012, 1015 (10th
Cir.1986), cert. denied, 484 U.S. 838, 108 S.Ct.
123, 98 L.Ed.2d 81 (1987).
The Supreme
Court has twice addressed situations in which
the government introduced statements made by
defendants to "jailhouse informants" against the
defendant at trial. In United States v. Henry,
447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115
(1980), and FBI agent told a longstanding
informant, whom it paid whenever he produced
useful information and who was incarcerated with
the defendant, "to be alert to any statements
made by the federal prisoners, but not to
initiate any conversation with or question" them
about their crimes.
Henry, the
defendant, was one of a handful of federal
prisoners incarcerated at the Norfolk County,
Virginia, jail. Nichols, the government
informant, ignored his instructions and struck
up a friendship with Henry, who made
incriminating statements to Nichols during the
course of their conversations. The Court held
that Nichols was a government agent and had,
through his conversations with Henry,
deliberately elicited the statements in
violation of Henry's sixth amendment rights.
In Kuhlmann v.
Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d
364 (1986), the police intentionally placed the
defendant in a cell with Lee, a prisoner who had
agreed to act as an informant, in an attempt to
discover the identities of the defendant's
accomplices. They instructed the informant not
to question Wilson about his crimes but simply
to listen and report any information that Wilson
volunteered. Unlike the informant in Henry, Lee,
for the most part, obeyed instructions.
The opinion
suggests that the only statement he made in
response to any of Wilson's comments about the
trial was that Wilson's story "didn't sound too
good." Wilson ultimately confessed to Lee, and
the government introduced those statements at
his trial. The Court held that Lee--although a
government agent--had acted only as a listening
post and had done nothing to elicit the
statements from Wilson.
Both Henry and
Kuhlmann focused more directly on whether the
challenged statements had been deliberately
elicited rather than the question of whether the
informants were acting as government agents when
the statements were made. In both cases, the
Court concluded without discussion that the
informants were agents. It is not hard to see
why: in each case the government officials
identified specific prisoners from whom they
wanted information and found informants to
retrieve it. See also Arizona v. Fulminante, ---
U.S. ----, 111 S.Ct. 1246, 1250, 113 L.Ed.2d 302
(1991).
Nichols was
told to pay attention to the handful of federal
prisoners in a county jail; Lee was told to pay
attention to his cellmate. Recognizing this fact,
we have in the past "refuse[d] to extend the
rule of Massiah and Henry to situations where an
individual, acting on his own initiative,
deliberately elicits incriminating information."
United States v. Malik, 680 F.2d 1162, 1165 (7th
Cir.1982); see also United States v. Metcalfe,
698 F.2d 877, 882 (7th Cir.), cert. denied, 461
U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 814 (1983).
In Malik, the
government jailed an informant wanted by British
authorities for bank robbery. In hope of
avoiding extradition, the informant turned over
statements made by the defendants. There was no
evidence that the government intended or knew
that the jailed informant would continue to
gather information, and the natural inference
would have been otherwise; the informant had
every reason not to continue working for the
government after it had abandoned him. In
Metcalfe, there was simply no evidence that the
informant had ever had any contact with the FBI
before he turned over the defendant's statements
to the authorities.
No one
directed Carl Beaman to cozy up to Tom
York. When Beaman
arrived at the Terre Haute penitentiary in May
1987, York was already
there. Beaman was serving a forty-year sentence
for two bank robbery convictions and had been
acting as a prison informant for the FBI since
1983. Beaman was transferred to Terre Haute from
Talledega, Alabama, after testifying against an
accomplice in the bank robbery for which he had
been convicted.
There is no
evidence that Beaman was placed in Terre Haute
to meet York or to
obtain information from him; the Bureau of
Alcohol, Tobacco, and Firearms ("ATF") had
investigated York's
crimes, not the FBI. The FBI learned of
York only when Beaman
came to them with York's
confessions. John Stoll, the FBI agent to whom
Beaman reported when he had information, did
tell Beaman that he only wanted information
about certain crimes--murder, official
corruption, and drug offenses--but that
direction hardly narrowed the field of
opportunity for Beaman. Beaman's situation was
thus in many respects the same as that of the
informant in United States v. Watson, 894 F.2d
1345 (D.C.Cir.1990).
Like Beaman,
the informant in that case had been a government
informant for some time when he came into
contact with the defendant. Like Beaman, the
informant had some expectation that he would
benefit from providing information to the
government agent with whom he maintained contact.
The court held,
however, that the informant was not a government
agent, noting that there was no evidence that
the government had directed or steered the
informant toward the defendant. The informant
was not so much a government agent, the court
held, as he was an entrepreneur who hoped to
sell information to the government. Id. at 1348.
Does this mean
that the government can send an informant on a
reconnaissance patrol through the prison
population to gather evidence as long as it does
not target specific individuals for the
informant's attentions? No. The government tried
that tactic in United States v. Sampol, 636 F.2d
621, 638 (D.C.Cir.1980), to no avail.
In that case
the court held that where there is a
prearrangement between the government and an
informant, the informant is a government agent.
Id. There is a distinct difference between
passively receiving information provided by
enterprising inmates and striking deals with
inmates--whether based on coercion or enticement--to
gather as much information as possible from
other inmates, as did the trial court and the
prosecution in Sampol. "An element of the agency
relationship is the understanding of the parties
that the principal is to be in control of the
undertaking and that the agent shall serve ...
subject to the directions of the principal."
Federal Pants, Inc. v. Stocking, 762 F.2d 561,
564 (7th Cir.1985). Whether the principal
exercises its control strictly, by targeting
specific individuals, or casually, by loosing an
informant on the prison population at large, is
irrelevant. "It is the ability to control,
whether exercised or unexercised, that indicates
agency relationship." American Broadcasting Cos.
v. Climate Control Corp., 524 F.Supp. 1014, 1018
(N.D.Ill.1981).
Undoubtedly,
most inmates who provide information to law
enforcement officials harbor the hope that their
service will not go unrewarded. But as the court
cautioned in Lightbourne v. Dugger, 829 F.2d
1012, 1021 (11th Cir.1987), cert. denied, 488
U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988),
"[w]e must not confuse speculation about [an
informant's] motives for assisting the police
for evidence that the police promised [the
informant] consideration for his help or,
otherwise, bargained for his active assistance."
One might
argue that merely by providing the market for
information, the government violates the right
to counsel, but that would be to overstate the
government's role in most cases; the instinct
for self-preservation is as sharply honed, if
not more so, in prison as it is elsewhere. From
the moment that suspects are arrested, they
learn (if it had not already occurred to them)
that cooperation with the authorities may
benefit them. That inmates realize there is a
market for information about crime does not make
each inmate who enters the market a government
agent.
Moreover, we
are reluctant to discourage prisoners from
reporting information to appropriate authorities;
they, like all citizens, should report such
information. See Lightbourne, 829 F.2d at 1020.
It is merely a tautology to argue that the
government should not be in the business of
providing a market for information that
infringes sixth amendment rights; there is no
infringement unless the informant was a
government agent, and there is no agency absent
the government's agreement to reward the
informant for his services.
Agreements, of
course, don't have to be explicit or formal, and
are often inferred from evidence that the
parties behaved as though there were an
agreement between them, following a particular
course of conduct over a sustained period of
time. What of symbiotic relationships between
informants and government law enforcement
officials that evolve from an initial exercise
of initiative by the informant? Such cases
present sticky questions, and
York's is an example.
York contends that
there was an implicit agreement between Beaman
and Agent Stoll since Beaman had worked for
Stoll for a number of years and was reporting to
Stoll on a weekly basis during the period when
York was confiding to
Beaman. Among the favors he performed for the
FBI, Beaman made consensually monitored phone
calls to persons he knew outside the prison who
were dealing drugs, an activity he could not
have pursued while in prison without government
forbearance.
Agent Stoll
also testified that the government had an
agreement with Beaman that it would inform his
parole board of the extent of his cooperation
when he became eligible for parole. Beaman,
however, had never been paid for, or received
any benefit from, the information he gave to the
FBI before he related York's
statements to Agent Stoll.
In fact,
Beaman maintained that the government had
welched on the only promise it had ever made to
him in connection with his cooperation.
According to Beaman, an Assistant United States
Attorney had promised, but failed, to write a
letter to his parole board on his behalf in 1986
when Beaman testified in a trial as a government
witness.
The government
also agreed to support Beaman's application for
parole in exchange for his testimony against
York at trial, but that
promise bears only on Beaman's credibility as a
government witness, not on his status as a
government agent at the time he maintains
York confided in him.
Beaman did receive $5,000 and another promise
that the prosecutors would support his
application for parole after he related
York's statements to
Agent Stoll. Payment after providing information
may, as York maintains,
be probative of a prior agreement between the
informant and the government (though the cases
cited for this proposition in his brief do not
stand for that proposition at all).
Beaman
testified, and the government corroborated his
testimony, that the bulk of the money he
received was to reimburse him for long distance
phone calls and lost prison wages stemming from
his past cooperation with the government. Agent
Stoll testified that about a third of the money
was a reward for information and testimony
Beaman provided to the FBI in 1986. He
maintained that the money had nothing to do with
the information Beaman provided concerning
York, as
York's was an ATF, not
an FBI, case. Agent Stoll did not, however,
explain the curious timing of the payment.
After
conducting a hearing on the Massiah issue, the
district court concluded that Beaman was not a
government agent when he spoke with
York because, in the
court's words, "he was under no general
direction by any special agent during that
period of time as to how to proceed." Tr. at
446. We agree with that view of the facts, but
must respectfully disagree as to their legal
significance. There is no question that the FBI
was not closely managing Beaman's actions in
prison; the relevant question, however, is
whether the FBI told Beaman to collect
information, not whether it told him exactly how
or when to collect it, or from whom.
We conclude
that, as a matter of law, Beaman was acting on
behalf of the government while incarcerated at
Terre Haute. Agent Stoll conceded that there was
an informal agreement with Beaman to assist his
parole application by detailing the extent of
his cooperation with the government; that fact
distinguishes Beaman from Young, the informant
in Watson, supra.
Beaman, unlike
Young, had been promised a reward for suitable
information obtained from any source; the
structure of the deal also maximized Beaman's
incentive to cooperate since the strength of the
government's support would be a direct function
of the assistance he provided. Moreover, Stoll
told Beaman the type of information he was
interested in receiving; that statement was
tantamount to an invitation to Beaman to go out
and look for that type of information.
The alternative explanation
strikes us as implausible. Beaman's work for the
government put him at risk in the midst of
several prison populations, groups not well
known for their hospitality toward government
informants. Beaman knew this quite well; he had
been transferred to different prisons several
times for his own safety, and asked Agent Stoll
not to interview him a second time at Terre
Haute because he feared another meeting would
raise suspicions that he was cooperating with
the government. It seems unlikely that Beaman
would have been willing to assume such risks
over a prolonged period of time simply on the
hope that the government would treat him
charitably, particularly when, at least in
Beaman's view, the government had failed to come
through on an earlier concrete promise it had
made to him.
Unlike the
informant in United States v. Hicks, 798 F.2d
446 (11th Cir.1986), who was motivated to
provide information about a defendant's drug
trafficking by a personal crusade against drugs
prompted by the experiences of family members
who had been involved with drugs, Beaman was not
motivated by any concern other than a desire to
be paroled at the earliest possible opportunity.
Beaman worked for the government because he had
been assured that his good deeds would not go
unrewarded.
Which brings
us to the question of whether Beaman set about
to elicit the incriminating statements from
York. Beaman was
assigned as a clerk in the recreation department
at the prison. While serving in that position,
he saw York on almost a
daily basis. Beaman reported that he and
York often conversed,
and had about a dozen conversations that touched
on York's crimes.
Beaman
testified as to the substance of two of these
conversations, steadfastly maintaining that
York initiated both. On
one occasion, he and York
"was kind of digging in each other's past" and
Beaman told York that
his son had been in trouble with the law.
York related that his
own son, Tommie, had also been in trouble.
According to
Beaman, York added that
his son had testified against him during his
first trial and feared him because he suspected
York of killing his
mother, Maureen Jurkiewicz. To this, Beaman
responded: "You must have been pretty mad at the
bitch." York replied: "Mad
enough to put a bullet in the back of her head."
On a later
date in the spring of 1988,
York related that he was going to come
into some money as the result of the reversal of
his first conviction. Beaman testified that
York told him that he
was going to be able to collect insurance money
on a building he had blown up and on a woman he
had killed in the process.
Beaman related
that he then (apparently redundantly) asked
York whether he was
going to "make any money from it," to which
York replied that he "wouldn't
have done it if I didn't think it was worthwhile."
York went on to tell
Beaman that the bomb had been designed to
collapse the building on top of the woman to
disguise the fact that he had hit her in the
head, but that it had gone off early--"in the
woman's face."
Undoubtedly,
Beaman's "conduct and apparent status as a
person sharing a common plight," Henry, 447 U.S.
at 274, 100 S.Ct. at 2189, influenced
York's decision to make
incriminating statements to him. That fact,
however, does not rise to the level of "deliberate
elicitation"; the same could be said of the
government agent inserted into the defendant's
cell as a "listening post" in Kuhlmann. In Henry
the Court focused on the fact that Nichols, the
government informant, deliberately engaged the
defendant in conversations about his crimes;
there is no similar evidence respecting Beaman.
Granted,
Beaman conversed with York
about the crimes after York
brought the subjects up, but to have done
anything else would have done little but raise
suspicions about his status. We do not require
inmates serving as government agents to reveal
their status by removing themselves from
situations in which they might discover
incriminating information about their fellow
inmates or abruptly changing the subject of
conversation when inmates unburden themselves.
In such cases,
where they stumble upon the information "by luck
or happenstance," Kuhlmann, 477 U.S. at 459, 106
S.Ct. at 2630 (quoting Maine v. Moulton, 474 U.S.
159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481
(1985)), the information is not the product of
government investigatory activity and there is
no ground for maintaining that the government
surreptitiously interrogated the defendant in
the absence of counsel.
Certainly, had
Beaman sought to capitalize on his good fortune
by quizzing York about
the details of his crimes, he might be said to
have deliberately elicited any subsequent
revelations. But Beaman did not do so. So far as
the record reveals, his only comment preceding
York's confession that
he killed Maureen Jurkiewicz was to observe that
"you must have been pretty mad at the bitch."
This is not a statement that required an answer,
much less a confession to murder; moreover,
York had already
broached the subject of his wife's murder by
relating that his son suspected him of murdering
her.
Regarding the
destruction of the Just Friends Lounge and the
death of Gail Maher, Beaman did ask
York whether "he was
going to make any money from it," but that was
after York had already
bragged that he was going to come into some
money because his first conviction in that case
had been reversed and related the details of the
crime to Beaman. In neither case does it appear
that Beaman was hot on the scent of information
that could have proven particularly valuable to
him in light of Agent Stoll's indication that he
was interested in information about murders.
Beaman's
subsequent actions support this reading. Beaman
thought York's
statements were "rubbish," just another inmate
bragging about his career accomplishments.
Beaman did not report these statements to Agent
Stoll until several months later when another
inmate read a newspaper article to Beaman about
the reversal of York's
first conviction.
Only then did
Beaman conclude that York
was telling the truth. Had Beaman been trying to
pump information from York,
it seems highly unlikely that he would have
waited for independent corroboration before
turning his information over to the FBI. As a
government agent, Beaman's interests would have
been best served by immediately telling Stoll
what York had said and
letting Stoll worry about corroboration.
During the
period when York made
these statements, Beaman was meeting regularly
with Agent Stoll on another matter. It is
inconceivable that had these statements been the
fruit of an attempt to deliberately elicit
information from York
that Beaman would not have reported them to
Agent Stoll at that time. Beaman was a
government agent when York
made these statements, but, like the agent in
Kuhlmann, did nothing to deliberately elicit the
statements, so York's
sixth amendment right to counsel was not
violated by their admission into evidence.
Two associates
of Gail Maher, Carol Mroch and John Etscheid,
testified at trial that Maher had told them that
she and York planned to
blow up the Just Friends Lounge to collect the
insurance proceeds. Specifically, Mroch
testified that Maher told her that she and
York had discussed
burning down the lounge and that if anything
happened to the lounge, she would be given
severance pay.
Etscheid
testified that Maher told him that she and
York had discussed
blowing up the lounge to collect the insurance
proceeds. Maher, said Etscheid, told him that
York knew a person who
was going to show him how to blow up the lounge
by means of a natural gas explosion, but they
weren't going to blow up the lounge until July
because there was a wedding reception scheduled
there earlier in the summer.
York filed a motion in limine to exclude
this testimony on the grounds that it was
inadmissible hearsay and violated the
confrontation clause of the sixth amendment.
He failed,
however, to renew his objections when the
testimony was admitted. We therefore review his
allegations of error under the plain error
standard, for "[a] party whose motion in limine
has been overruled must object when the error
the party sought to prevent is about to occur at
trial." United States v. Roenigk, 810 F.2d 809,
815 (8th Cir.1987).
The district
court overruled York's
hearsay objection on the ground that the
statements were admissible under the penal
interest exception to the hearsay rule. See
Fed.R.Evid. 804(b)(3). We agree. "For a
statement to qualify as a 804(b)(3) statement
against interest, the government must show that
the statement 'tended to subject' the declarant
to criminal liability so that a reasonable
person in the declarant's position would not
have made the statement unless the declarant
believed it to be true." United States v. Garcia,
897 F.2d 1413, 1420 (7th Cir.1990) (quoting
United States v. Wilkus, 875 F.2d 649, 654 (7th
Cir.1989)).
Statements
that "tend to implicate the declarant in a
conspiracy are statements against his penal
interest." United States v. Layton, 720 F.2d
548, 560 (9th Cir.1983), cert. denied, 465 U.S.
1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984). In
like vein, statements that demonstrate a
declarant's inside knowledge of a crime are also
against the declarant's penal interest. Id.;
United States v. Barrett, 539 F.2d 244, 252 (1st
Cir.1976).
Each of
Maher's statements suggests that she and
York were conspiring to
blow up the lounge, and that she was intimately
involved in planning the crime.
York argues to the
contrary, but fails to rebut the incriminating
nature of Maher's statements.
He offers, for
example, only the conclusion that Maher's
statement that Mroch would receive severance pay
was not incriminating, refusing to even
acknowledge the government's position that the
statement showed that Maher was planning to
destroy the lounge. The district court carefully
reviewed these statements and concluded that
they were statements against interest;
York provides no basis
for disagreeing, much less for determining that
the court's conclusions amounted to an abuse of
discretion.1
York also contends that
the portions of Maher's statements that
inculpated York were
inadmissible because they did not subject her to
criminal liability. That view ignores the fact
that by naming York,
Maher demonstrated her inside knowledge of yet
another detail of the planned crime. Layton, 720
F.2d at 559-60. York's
position nevertheless has some logical force.
Exclusion of
that portion of a statement against interest
inculpating others was often (before the
adoption of the Federal Rules of Evidence anyway)
advanced as the approach most consistent with
the rationale specifically embodied in the
declaration against interest hearsay exception--that
the declarant would not expose herself to
criminal liability by making false statements.
See, e.g., MCCORMICK, EVIDENCE Sec. 279 at 677
(2d ed. 1972); Jefferson, Declarations Against
Interest--"An Exception to the Hearsay Rule," 58
HARV.L.REV. 1, 60-61 (1944).
Admitting
inculpatory statements against interest
recognizes, however, the broader purpose behind
this and other hearsay exceptions as well--to
permit the use of evidence that is trustworthy (for
whatever particular reason) and to exclude that
which is unreliable. 4 J. WEINSTEIN & M. BERGER,
WEINSTEIN'S EVIDENCE p 804(b)(3) at 804-138
(1990).
There is
little question that the drafters of the Rules
of Evidence and Congress intended Rule 804(b)(3)
to permit admission of inculpatory statements
where consistent with the confrontation clause
of the sixth amendment.
The advisory
committee's notes reflect the view that a
statement admitted under the rule "may include
statements implicating [another], and under the
general theory of declarations against interest
they would be admissible as related statements."
The cases give effect to this view. See, e.g.,
United States v. Harty, 930 F.2d 1257, 1263 (7th
Cir.1991); United States v. Garcia, 897 F.2d
1413, 1420 (7th Cir.1990); United States v.
Casamento, 887 F.2d 1141, 1171 (2d Cir.1989);
United States v. Fields, 871 F.2d 188, 192 (1st
Cir.1989).
Moreover,
Congress deleted a provision from the rule that
would have prohibited the use of inculpatory
statements against interest, "to avoid codifying,
or attempting to codify, constitutional
evidentiary principles...." S.Rep. No. 93-1277,
93d Cong., 2d Sess., reprinted in 1974 U.S.Code
Cong. and Admin.News at 7051, 7068.
The report
discussing this deletion went on to observe that
"[c]odification of a constitutional principle is
unnecessary and, where the principle is under
development, often unwise." "As Congress
recognized, the central underpinning of such a
safeguard must be the confrontation clause of
the United States Constitution." United States
v. Alvarez, 584 F.2d 694, 700 (5th Cir.1978).
To be
admissible under rule 804(b)(3), then, the
inculpatory portion of a statement against
interest must be sufficiently reliable to
satisfy the confrontation clause. There seems
little reason to treat the requirement of
reliability differently in each context. Such an
approach would be needlessly complex, requiring
two bodies of case law where one will do.B.
Confrontation Clause
York asserts that his
sixth amendment right to confront witnesses
against him was violated when the district court
admitted Maher's hearsay statements.
York cites Bruton v.
United States, 391 U.S. 123, 88 S.Ct. 1620, 20
L.Ed.2d 476 (1968), to support his claim, but
ignores the complex body of case law relating to
the interplay of the confrontation clause with
the hearsay rule, of which Bruton is but a part.
In Bruton, the Court reversed the conviction of
a defendant against whom the confession of a
nontestifying codefendant was used as
substantive evidence.
The Court's
ruling, however, was predicated upon the
inadmissibility of the statement against the
defendant under the rules of evidence;
the Court explicitly reserved judgment on the
question of whether the use of an inculpatory
hearsay statement against an accused would
violate the confrontation clause when that
statement was admissible under the rules of
evidence applicable in the jurisdiction.3
See 391 U.S. at 128 n. 3, 88 S.Ct. at 1623 n. 3.
Since Bruton,
the Court has repeatedly observed that use of an
inculpatory hearsay statement against an accused
raises only a rebuttable presumption that the
statement is unreliable. Lee v.
Illinois, 476 U.S. 530,
543, 106 S.Ct. 2056, 2063, 90 L.Ed.2d 514
(1986); Dutton v. Evans, 400 U.S. 74, 83-86, 91
S.Ct. 210, 216-218, 27 L.Ed.2d 213 (1970) (plurality
opinion); see also New Mexico v. Earnest, 477
U.S. 648, 649, 106 S.Ct. 2734, 2735, 91 L.Ed.2d
539 (Rehnquist, J., joined by Burger, C.J., and
Powell and O'Connor, JJ., concurring in order
vacating and remanding case for reconsideration
in light of Lee v. Illinois
) ("As Lee v. Illinois
makes clear, to the extent that Douglas v.
Alabama [380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d
934 (1965) ] [on which Bruton was based]
interpreted the Confrontation Clause as
requiring an opportunity for cross-examination
prior to the admission of a codefendant's out-of-court
statement, the case is no longer good law.").
In Ohio v.
Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537,
65 L.Ed.2d 597 (1980), the Court observed that
if applied literally, the confrontation clause "would
abrogate virtually every hearsay exception, a
result long rejected as unintended and too
extreme."
The Court
therefore "concluded in Roberts that no
independent inquiry into reliability is required
when 'the evidence falls within a firmly rooted
hearsay exception.' " Bourjaily v. United States,
483 U.S. 171, 182-83, 107 S.Ct. 2775, 2782-83,
97 L.Ed.2d 144 (1987) (quoting Roberts, 448 U.S.
at 66, 100 S.Ct. at 2539); see also Lee, 476 U.S.
at 543, 106 S.Ct. at 2063. "In other cases, the
evidence must be excluded, at least absent a
showing of particularized guarantees of
trustworthiness." Roberts, 448 U.S. at 66, 100
S.Ct. at 2539.
The circumstances surrounding
Maher's statements inculpating
York--speaking to acquaintances
unconnected to law enforcement--make them
eminently trustworthy; so trustworthy, in fact,
that the advisory committee used that scenario
as an example of an inculpatory statement that "would
have no difficulty in qualifying" for admission
under 804(b)(3). Compare United States v. Magana-Olvera,
917 F.2d 401 (9th Cir.1990) (declarant's
statement inculpating defendant in drug
trafficking, made after declarant discovered
that he had sold drugs to an undercover police
officer, held unreliable).
Notwithstanding the advisory committee's
understandable caveat that it did not purport to
suggest that the requirements for admissibility
under Rule 804(b)(3) would satisfy the
confrontation clause, we think that such
statements satisfy those requirements. The " 'particularized
guarantees of trustworthiness' required for
admission under the Confrontation Clause must
... be drawn from the totality of circumstances
that surround the making of the statement and
that render the declarant particularly worthy of
belief." Idaho v. Wright, --- U.S. ----, 110
S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990).
The fear that
inculpatory statements are unreliable stems
largely from the presumption that such
statements are self-serving, offered only to
shift the blame from the declarant to another.
But when, as here, the inculpatory portion of a
statement is also against the declarant's
interest, or when it is neutral because the
declarant has not attempted to diminish his own
role, there is little reason to suspect that
portion of an otherwise reliable statement is
untrustworthy. See Lee v.
Illinois, 476 U.S. 530, 551-52, 106 S.Ct.
2056, 2067-68, 90 L.Ed.2d 514 (1986) (Blackmun,
J., dissenting) (inculpatory hearsay statement
satisfied confrontation clause because the
statements "were thoroughly and unambiguously
adverse to [declarant's] penal interest,"
reducing likelihood that inculpatory portions
were self-serving).
In Garcia we therefore rejected a
claim that admission of an inculpatory hearsay
statement under rule 804(b)(3) violated the
defendant's sixth amendment right to confront
witnesses against him. While we did not
expressly state that the statement against penal
interest exception to the hearsay rule is "firmly
rooted," we observed that the reliability of the
inculpatory statement at issue in that case had
been adequately established for purposes of the
evidentiary rule, thereby satisfying the
requirements of the confrontation clause as well.
897 F.2d at 1421.
Our holding in
Garcia was tantamount to saying that the
exception is well-rooted within the meaning of
Roberts and Bourjaily, and we affirm that view
today.4
"The hearsay exception for declarations against
interest is firmly established; it rests upon 'the
principle of experience that a statement
asserting a fact distinctly against one's
interest is unlikely to be deliberately false or
heedlessly incorrect.' " Lee, 476 U.S. at 551,
106 S.Ct. at 2067 (Blackmun, J., joined by
Burger, C.J., and Powell and Rehnquist, JJ.,
dissenting); see also Dutton, 400 U.S. at 89, 91
S.Ct. at 219 (plurality opinion) (That a
statement is against penal interest is an
indicator of reliability that has been "widely
viewed as determinative of whether a statement
may be placed before the jury though there is no
confrontation of the declarant.").
So long as the
incriminating and inculpatory portions of a
statement are closely related, see Casamento,
supra, if the circumstances surrounding the
portion of a declarant's statement inculpating
another are such that the court determines that
the inculpatory portion of the statement is just
as trustworthy as the portion of the statement
directly incriminating the declarant, there is
no need to excise or sever the inculpatory
portion of the statement.
Maher's
inculpatory statements were admissible under
Rule 804(b)(3) and therefore there was no
confrontation clause violation.5
Accord United States v. Stratton, 779 F.2d 820,
830 (2d Cir.1985), cert. denied, 476 U.S. 1162,
106 S.Ct. 2285, 90 L.Ed.2d 726 (1986); United
States v. Alvarez, 584 F.2d at 701.
After York
successfully appealed his first conviction, the
government sought and obtained a superseding
indictment against him. The new indictment added
a charge of obstruction of justice, arising from
York's threats to kill
his son after Tommie York
invoked the fifth amendment and refused to
testify at his father's first trial.
In Blackledge
v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d
628 (1974), the Supreme Court held that the due
process clause prohibits the government from
bringing more serious charges against a
defendant unless the prosecutor comes forward
with objective evidence demonstrating that the
new charges could not have been brought before
the defendant exercised his constitutional
rights. York
characterizes the addition of the obstruction of
justice charge against York
as an impermissible attempt to punish him for
exercising his constitutional right to appeal
his first conviction because the government knew
of the threats before York's
first trial began.6
The government
counters that York's
son was effectively unavailable as a government
witness until November 1988 because Tommie had
previously invoked his fifth amendment privilege
against self-incrimination and refused to
testify at his father's trial. Tommie's
unavailability, the government maintains,
precluded it from bringing the obstruction
charge against York at
his first trial.
The
government's position oversimplifies the matter.
Tommie York invoked the
fifth amendment to preclude questions relating
to his conduct during the investigation of the
Maher murder, not to preclude questions about
events surrounding the threats
York made after his son invoked the fifth
amendment.
There is
nothing in the record to suggest that Tommie's
fear of self-incrimination extended to those
incidents, nor is there anything to suggest that
he was unwilling to testify about them. The
government never sought to question him about
those events; it had no way of knowing whether
or not he would have refused to testify about
them.
Nevertheless, we agree that
Tommie was effectively unavailable to the
government. During his father's second trial,
Tommie testified that he had taken the fifth
amendment because he feared his father.
York had pressured his
son to lie on the witness stand; Tommie
apparently believed that by not testifying he
could avoid perjuring himself while also
avoiding his father's wrath if he testified (truthfully)
against him. He claimed the privilege on that
basis.7
We doubt that
his father's threats after he took the fifth did
anything to assuage Tommie's fears; he
undoubtedly would have refused to cooperate had
the government sought to question him about the
incidents, and certainly would have again sought
refuge in the fifth amendment had the
prosecution charged York
with obstruction at that time and called Tommie
as a witness.
True, the
district court might not have permitted Tommie
to invoke the privilege in that case, but we
will not infer a prosecutorial vendetta from
what appears to us to have been an admirable
case of prosecutorial restraint.
The
prosecution could have tried to add the
obstruction charge to York's
first trial, and might have been able to force
his son to testify about that charge despite his
prior invocation of the fifth amendment, but the
prosecutors opted not to badger a young witness
to testify against a father he feared solely to
pile on another charge at that late date.
It was only
when Tommie York
approached the prosecutors two years later that
the government sought to add the obstruction
charge to York's
pending retrial. The government's conduct in
this case simply does not support the notion
that it was seeking retribution for
York's successful
appeal, or that it was seeking to chill other
defendants from appealing their convictions.
The defense tendered Dr. Werner
Spitz, a forensic pathologist, as an expert
witness. The defense qualified Dr. Spitz as an
expert in front of the jury; among the
qualifications presented was Dr. Spitz's sixteen
year tenure as the chief medical examiner for
Wayne County, Michigan. With the court's
permission, the prosecution conducted a voir
dire of Dr. Spitz that focused on several
instances of allegedly unprofessional conduct he
committed while he was the chief medical
examiner.
The prosecutor
asserted that Dr. Spitz had unlawfully permitted
the Detroit police department to conduct gunshot
experiments on corpses and that he had
unlawfully channeled the proceeds from the sale
of body parts from corpses to a private
foundation rather than turning the proceeds from
those sales over to the county as required by
law. York protests on
appeal that this voir dire was improper under
Rule 608(b) and that the prosecutor questioned
Dr. Spitz without a good faith basis for his
claims.
There is no
merit to either claim. Under Rule 702, a witness
must qualify as an expert in order to testify
about "scientific, technical, or other
specialized" matters. To that end, the defense
introduced evidence of Dr. Spitz's professional
qualifications, including his lengthy stint as
the chief medical examiner of Wayne County,
Michigan. The prosecution had a right to
challenge the adequacy of those qualifications.
See, e.g., United States v. Ramirez, 796 F.2d
212, 216 (7th Cir.1986); Backes v. Valspar
Corp., 783 F.2d 77, 79 (7th Cir.1986).
Its questions about Dr. Spitz's
professional conduct while he held the office of
chief medical examiner were relevant to the
weight to be accorded that credential by the
district court. If, as the prosecution
maintained, Dr. Spitz conducted some of his
official duties in an unprofessional manner, the
district judge and the jury could have
reasonably discounted the value of that service
for establishing Dr. Spitz's professional
qualifications.
Moreover,
while the adequacy of professional
qualifications obviously bears upon the
credibility of an expert witness, the inquiry
into such qualifications is a preliminary
question governed by Rule 104(a), which states
expressly that other rules of evidence do not
apply to the court's determination respecting,
among other things, the qualification of a
person to be a witness.8
York's invocation of
Rule 608(b) is therefore futile; that rule does
not apply in the context of a witness voir dire.
We accord significant discretion to trial judges
to control the scope of voir dire examinations,
Ramirez, 796 F.2d at 216; United States v.
Winograd, 656 F.2d 279, 282 (7th Cir.1981), cert.
denied sub nom. Siegel v. United States, 455 U.S.
989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), and
for good reason. "Because the universe of
experts is defined only by the virtually
infinite variety of fact questions in the trial
courts, the signals of competence cannot be
catalogued." Eymard v. Pan American World
Airways, 795 F.2d 1230, 1234 (5th Cir.1986).
The same holds
true of signals of incompetence. The court could,
perhaps, have conducted the voir dire entirely
outside the presence of the jury, but once the
defense had been permitted to qualify Dr. Spitz
in front of the jury, we do not think it error
for the judge to have permitted the government
to challenge Dr. Spitz in front of the jury as
well, particularly when the defense was able to
mount an extensive rehabilitation effort
immediately afterward.
As for York's
assertion of the prosecutor's bad faith, it is
completely without foundation.
York contends that the government relied
on a preliminary investigatory report issued by
the local prosecutor in Wayne County that raised
questions about the gunshot experiments and Dr.
Spitz's role in selling body parts to benefit a
private non-profit institution he founded.
The findings
of that report, York
maintains (as did Dr. Spitz at trial) were
ultimately rejected by the district attorney,
and Spitz was never charged with any illegal
activity. York provided
no evidence, however, to support his claim that
the findings of the report were rejected. Nor
does he offer any evidence that the prosecutor
relied on the report in bad faith.
The record
establishes the contrary. Before the district
judge permitted the prosecutor to challenge Dr.
Spitz, she inquired into the basis for his
questions. The prosecutor was able to establish
a good faith basis for his questions about these
incidents without referring to the investigatory
report at all. Dr. Spitz, it seems, had been
asked about the same incidents at several other
trials in which he testified.
In one, he
admitted that while medical examiner he
permitted the removal and sale to other
institutions of body parts and that he did not
turn the proceeds of those sales over to the
county as he was required to do by law. As the
district court told York's
counsel when it objected at the time, "He's [the
prosecutor] got it in the transcript that the
man admitted it." As for the gunshot experiments,
Dr. Spitz admitted in at least one other trial
that he authorized such experiments.
The
prosecution also discovered that Dr. Spitz had
written and published several articles based on
the results of those experiments. The
prosecution knew of the Wayne County
investigatory report, but did not rely on it to
establish a basis for questioning Dr. Spitz
about these incidents.
The
prosecution obviously researched the voluminous
material associated with Dr. Spitz's frequent
testimony as an expert witness and found that it
did not need to rely on the reports of others to
discredit the doctor; his own words did the job
well enough.
At the outset of the jury
selection process, in front of the entire venire,
one of the prospective jurors volunteered that
he had read a newspaper article several years
before about York's
case. According to the prospective juror, "the
implication [of the article] was that the
defendant was guilty."
When the judge asked whether his
knowledge of the article would have an effect on
his ability to serve as a juror, he answered
that it would. At that point, defense counsel
requested a side bar and asked the judge to
excuse the entire venire due to the possibility
that these comments prejudiced other members of
the venire.
The district court declined to
dismiss the venire, but polled its members
individually to determine if they had overheard
the comment, and if they had, to determine
whether they could still be impartial. Several
of the members of the venire who heard the
remark ultimately served on
York's jury. York
maintains on appeal that the district court's
refusal to dismiss the entire venire deprived
him of his constitutional right to a fair trial.
We disagree.
In Irwin v. Dowd, 366 U.S. 717, 723, 81 S.Ct.
1639, 1642-43, 6 L.Ed.2d 751 (1961), a case
York cites to support
his claim, the Supreme Court observed:
To hold that
the mere existence of any preconceived notion as
to the guilt or innocence of an accused, without
more, is sufficient to rebut the presumption of
a prospective juror's impartiality would be to
establish an impossible standard. It is
sufficient if the juror can lay aside his
impression or opinion and render a verdict based
on the evidence presented in court.
Each member of
the venire was polled by the district judge and
indicated that the remarks in question would not
adversely affect his or her ability to be fair.
York denigrates the
responses of the venire members, describing them
as "perfunctory," but does not explain why the
district court should not have relied on them.
York maintains that we
should presume as biased anyone who has
discovered information about a defendant's past
criminal record or previous conviction in the
same case. In the cases he cites, however, "the
influence of the news media, either in the
community at large or in the courtroom itself,
pervaded the proceedings." Murphy v. Florida,
421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d
589 (1975) (describing cases cited by appellant).
By contrast,
York claims error on the basis of a
single comment of a prospective juror who was
unknown to the other members of the venire, a
comment that, by our count, fewer than half of
the members of the venire could even recall.
Those who did recall the comment affirmed that
it would have no effect on their ability to
serve as impartial jurors.9
Absent any
reason to suspect that these responses were
untrue, we must credit them; "surely one who is
trying as an honest man [or woman] to live up to
the sanctity of his oath is well qualified to
say whether he has an unbiased mind in a certain
matter." Dennis v. United States, 339 U.S. 162,
171, 70 S.Ct. 519, 523, 94 L.Ed. 734 (1950).
York aims the last
arrow in his quiver at the instructions given by
the district court on mail fraud. The district
court read this Circuit's pattern instruction
for mail fraud to the jury.10
York maintains that the
instruction should have specified that the jury
had to find beyond a reasonable doubt that
York killed Maher in
order to convict him on the mail fraud counts.
The claim is without merit.
The
instruction referred the jury to the fraudulent
scheme described in the indictment, namely,
York and Maher's scheme
to blow up the lounge and collect the proceeds
from their insurance policy on the buildings (Count
3) and York's plan to
kill Maher and to collect the proceeds from her
life insurance policy (Counts 4 and 5).
To convict
York on Counts 4 and 5,
then, the jury had to find that
York killed Maher.
Those counts allege no other scheme; had the
jury found that the government failed to prove
the murder scheme, it would have had no
alternative but to acquit York
on those counts.
Thomas
York received a fair
trial. We therefore affirm each of his
convictions.
*****
1
We also note that the
district court refused to admit several
statements attributed to Maher, namely that
York wanted to sell the
lounge but Maher was blocking a sale and that
York was pressuring
Maher to repay her debt to him. The district
court concluded that these statements did not
tend to incriminate Maher and were separable
from the other statements that did. While the
fact that the district court did not give the
government everything it wanted does not
preclude us from reviewing the basis for
admitting the other statements, it does tend to
suggest that the decision to admit the other
statements was a principled exercise of the
court's discretion
3
The Court thus created an
anomaly that continues to this day. Bruton only
prohibits the use of an inculpatory hearsay
statement against an accused when the
jurisdiction's rules of evidence do not permit
that statement to be introduced into evidence
against the accused. Where the rules so permit,
Bruton is inapplicable. Thus, under Bruton and
subsequent cases, whether an inculpatory hearsay
statement violates the confrontation clause
turns on the content of the rules of evidence.
Professor James Haddad has written extensively
on this anomaly, suggesting that the
confrontation clause foundation of Bruton cannot
sustain the weight of this contradiction.
Professor Haddad suggests that Bruton, if it is
to survive at all, must come to be read as
resting on due process considerations relating
to the adequacy of limiting instructions rather
than on the confrontation clause. See Haddad &
Agin, A Potential Revolution in Bruton Doctrine:
Is Bruton Applicable Where Domestic Evidence
Rules Prohibit Use of a Codefendant's Confession
as Evidence Against a Defendant Although the
Confrontation Clause Would Allow Such Use?, 81
J.CRIM.L. & CRIMINOLOGY 235 (1990); Haddad, The
Future of Confrontation Clause Developments:
What Will Emerge When the Supreme Court
Synthesizes the Diverse Lines of Confrontation
Decisions?, 81 J.CRIM.L. & CRIMINOLOGY 77, 96-97
(1990); Haddad, Post-Bruton Developments: A
Reconsideration of the Confrontation Rationale,
and a Proposal for a Due Process Evaluation of
Limiting Instructions, 18 AMER.CRIM.L.REV. 1
(1980)
4
Morrison v. Duckworth, 929
F.2d 1180, 1182 n. 2 (7th Cir.1991) is not
inconsistent with this view. In Morrison we held
that the nontestifying codefendant's confession
implicating Morrison did not fall within a
firmly-rooted hearsay exception, relying on the
statement in Lee v. Illinois
that "declaration against penal interest"
"defines too large a class for meaningful
Confrontation Clause analysis." 476 U.S. at 544
n. 5, 106 S.Ct. at 2064 n. 5. That statement
must be read in context, for Lee involved not a
"simple" declaration against penal interest, but
"a confession by an accomplice which
incriminates a criminal defendant." Id. The Lee
majority did not rule that the declaration
against interest exception to the hearsay rule
was not a firmly-rooted exception; it held
merely that the accomplice's inculpatory
declarations were presumptively unreliable
because they were not against interest (it was
whether the inculpatory portions of the
confession were reliable, not whether the
declaration against interest hearsay exception
is firmly rooted, on which the majority and
dissent disagreed). Morrison stands for the same
proposition, and is not inconsistent with our
holding that the statement against interest
exception of Rule 804(b)(3) is firmly rooted.
But as we held in Garcia, and reaffirm today, to
be admitted under Rule 804(b)(3), the
inculpatory portion of a statement against
interest must be sufficiently reliable (whether
because it too is against interest or for some
other reason) to satisfy the confrontation
clause. Morrison involved state, not federal,
evidentiary rules, and assumed admissibility
under a declaration against interest theory
absent that requirement; it did not address the
requirements for admissibility of inculpatory
statements under the federal rule
5
We are aware of no circuit
that has held that the level of reliability
required for admissibility under Rule 804(b)(3)
is insufficient to satisfy the confrontation
clause. Several have left the question open
after making an independent determination that
the hearsay statement at issue was sufficiently
trustworthy. See United States v. Fields, 871
F.2d 188 (1st Cir.), cert. denied, --- U.S.
----, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989);
United States v. Candoli, 870 F.2d 496 (9th
Cir.1989)
6
York
also contends that the ten-year sentence he
received for these threats evinces
vindictiveness on the part of the district court.
York's sentence was
well within the sentence authorized by law,
however, and York fails
to cite a single piece of evidence to support
his claim that the district court was motivated
by any improper consideration in awarding the
sentence. The advocacy of the able appellate
counsel in this case has been vigorous and
professional in all other respects, but this
allegation of error is without merit and exceeds
appropriate bounds of zealous representation
7
The trial judge permitted
Tommie to invoke the privilege on the belief
that his testimony was going to be that he had
lied to government agents during the course of
the Maher investigation. Tommie mistakenly
believed, however, that he could invoke the
privilege merely in order to avoid testifying
against his father
8
Rule 104(a) reads:
Questions of admissibility
generally. Preliminary questions concerning the
qualification of a person to be a witness, the
existence of a privilege, or the admissibility
of evidence shall be determined by the court,
subject to the provisions of subdivision (b). In
making its determination it is not bound by the
rules of evidence except those with respect to
privileges.
9
As in Murphy, the improper
remark prompted at least one individual to be,
if anything, more favorably disposed toward the
defendant. When asked if the remark had any
effect on him, one juror answered that "it made
me mad because that's the way newspapers do you."
Compare Murphy, 421 U.S. at 801, 95 S.Ct. at
2036 (one juror "suggested that people who have
been in trouble before are too often singled out
for suspicion of each new crime--a
predisposition that could only operate in
petitioner's favor.")
10
Our pattern instruction reads:
To sustain the charge of mail
fraud, the government must prove the following
propositions:
First, that the defendant
knowingly participated in the scheme to defraud
as described in the indictment.
Second, that for the purpose
of carrying out the scheme or attempting to do
so, the defendant caused the United States Mails
to be used in the manner charged in the
particular count; and
Third, that the defendant did
so knowingly and with the intent to defraud.
If you find from your
consideration of all the evidence that each of
these propositions has been proved beyond a
reasonable doubt, then you should find the
defendant guilty.
If, on the other hand, you
find from your consideration of all the evidence
that any one of these propositions has not been
proved beyond a reasonable doubt, then you
should find the defendant not guilty.