UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia. (Criminal No. 81-00090).
Robinson, Chief Judge, Wald, Circuit Judge, and Swygert,* Senior Circuit Judge. Opinion for the Court filed by Chief Judge Robinson.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ROBINSON
After trial by a jury, Albert W. Coachman was found guilty on 54 counts -- 18 each of mail fraud, *fn1 theft of Government property, *fn2 and false claims against the Government. *fn3 He was sentenced to concurrent terms of imprisonment for five years on each of the counts of mail fraud and theft, and to concurrent terms of three years on each of the counts of false claims, the three-year sentences to be served consecutively to those for five years. *fn4 Coachman attacks the convictions on grounds that evidence was erroneously admitted and then was improperly shielded from impeachment. Additionally, he claims that the Double Jeopardy Clause of the Fifth Amendment *fn5 barred any consecutiveness in the sentences. We reject Coachman's evidentiary challenges and find the sentences permissible. I
As a clerk in the Finance and Accounting Office of the Military District of Washington, Coachman serviced the payroll of the Defense Intelligence Agency . In this role he established accounts for new employees, adjusted individual payroll records, and closed accounts of terminated employees. These activities required Coachman to prepare computer documents calling for salary payments to employees and computer records of changes made in the payroll.
In the course of a routine audit, investigators detected discrepancies in the DIA payroll. The audit revealed that five individuals receiving DIA pay checks were not DIA employees, and that the agency lacked records authorizing their placement on the payroll. DIA then examined all documents submitted for the payroll during the following two pay periods, and found computer-generated forms, bearing Coachman's initials and payroll number, directing preparation and mailing of pay checks to the five non-employees. Further investigation unearthed 34 such checks issued on Coachman's instructions, of which 31 had been mailed and later paid on presentment, with a resulting loss of about $38,000 to the Government.
The indictment against Coachman charged a scheme to defraud the Government. It alleged that Coachman, without authority, placed the names of the five non-employees on the DIA payroll, and periodically submitted paperwork falsely representing that they were entitled to salary payments. The indictment averred that Coachman thus caused pay checks to be distributed through the mails to these non-employees and cashed by them, and that he shared the proceeds of the checks with the payees. The indictment theorized mail fraud through mailing of the ill-gotten checks, false claims against the Government through their presentment for payment, and theft from the Government through their cashing.
At trial, the Government called a number of witnesses and introduced numerous exhibits into evidence. Coachman offered no evidence and was convicted on all counts. Coachman challenges the handling of an item of the Government's proof and raises the specter of a double jeopardy violation through consecutive sentencing. II
The evidentiary issue centers on the introduction of a confession by one Gary Ballard, who was separately indicted as a participant in the criminal plot. Pursuant to a plea bargain prior to Coachman's trial, Ballard pleaded guilty to a single count of false claims against the Government. When called by the Government as a witness against Coachman, however, Ballard refused to answer any questions. The Government then offered, and was permitted to place in evidence, a Secret Service agent's recapitulation of an inculpatory statement made by Ballard after his arrest.
Coachman argues that Ballard's confession did not qualify as a declaration against interest and therefore was inadmissible hearsay. We are satisfied that the confession was not vulnerable on that ground. Rule of Evidence 804(b)(3) *fn6 rejects the common law requirement that the interest declared against be pecuniary or proprietary in nature, and extended the hearsay exception for such declarations to other types of self-damaging statements by an unavailable declarant, including one "which . . . at the time of its making so far . . . tended to subject him to . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." *fn7 Ballard's confession plainly was of that character, and his refusal to testify concerning it rendered him unavailable for purposes of the rule. *fn8
Whether a statement is in fact against interest depends upon the circumstance of the particular case. *fn9 We are mindful of the Advisory Committee's warning that an in-custody statement which inculpates another as well as the speaker may have been made with a view to currying favor with law-enforcement authorities, and consequently might not qualify as a declaration against penal interest. *fn10 Here, however, Ballard's version did not attempt to trivialize his own involvement in the nefarious scheme by shifting responsibility to his cohorts; rather, it frankly disclosed the extent of his own participation without any effort to demonstrate that others were really the ones to blame. Moreover, other evidence -- such as verification of Ballard's endorsement on fraudulently-obtained payroll checks, and tracing of several contemporaneous money orders and a personal check from Ballard into Coachman's bank account -- tended strongly to corroborate Ballard's confession.
However, for the very reason that Ballard's statement incriminated not only Ballard himself but Coachman as well, an entirely different problem is encountered. Admission of the confession where Ballard, because of his refusal to testify, was unavailable for cross-examination, deprived Coachman of the benefit of the Confrontation Clause of the Sixth Amendment. *fn11 The case fell squarely within the Supreme Court's Bruton holding, *fn12 and Ballard's confession should not have been received in evidence. *fn13
Nonetheless, this error does not warrant reversal of Coachman's convictions. The record is replete with properly admitted evidence, both physical and testimonial, of Coachman's deep involvement in the criminal enterprise. Moreover, as we have noted, Coachman made no effort whatsoever to rebut the Government's proof in any wise. We thus are led to believe that "the 'minds of an average jury' would not have found the [Government's] case significantly less persuasive had the testimony as to [Ballard's] admissions been excluded." *fn14 By our estimate, "the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of ...