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UNITED STATES v. WHITE

October 27, 1993

UNITED STATES OF AMERICA
v.
ANTONE R. WHITE (#1), ERIC A. HICKS (#2), DAN R. HUTCHINSON (#3), RONALD R. HUGHES (#4), DERRICK J. BALLARD (#5)



The opinion of the court was delivered by: HAROLD H. GREENE

 This case involves the prosecution of five defendants alleged to be members of an organization known as the First Street Crew. The defendants are accused in a twenty-six count indictment of conspiracy to distribute narcotics, operation of a continuing criminal enterprise, violations of RICO and other criminal violations. Two of the defendants have been indicted for the homicide of Arvell Williams, a police informant who worked with the Metropolitan Police Department in its investigation of the First Street Crew. The Court has received and considered numerous pretrial motions, most of which have been ruled upon from the bench or in a previously issued Memorandum. The instant Opinion, however, deals with a relatively novel legal and procedural issue raised by the government. Therefore, the Court has determined that it merits somewhat more extended treatment.

 As set forth in its motion, the government seeks to introduce at trial a number of out-of-court statements made by Arvell Williams prior to his death. *fn1" The issue before the Court is whether any of Williams's statements may be admitted at trial notwithstanding the obvious fact that he will be unable to take the stand and therefore cannot be cross-examined. The government contends that the defendants have procured the absence of Mr. Williams from these proceedings and that they have therefore waived any confrontation rights and hearsay objections that might otherwise be available. Not surprisingly, the defendants dispute this assertion. *fn2"

 I

 Waiver of Confrontation Rights and Hearsay Objections

 The Supreme Court has long recognized that a defendant's right of confrontation may be waived not only by consent but also by misconduct. Snyder v. Massachusetts, 291 U.S. 97, 106, 78 L. Ed. 674, 54 S. Ct. 330 (1934). The Supreme Court has specifically indicated that a defendant cannot assert his Confrontation Clause rights if a witness's absence is procured by the defendant himself. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878) (absence procured through defendant's refusal to tell U.S. Marshal where witness, who lived with defendant, could be found for service of subpoena). This rule has been applied by the lower courts in a number of factual situations. *fn3"

 The rationale underlying this rule of law is, quite logically, that the law should not allow a person to take advantage of his own wrong. See United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir. 1982). Put another way, "the Sixth Amendment does not stand as a shield to protect the accused from his own misconduct or chicanery." United States v. Carlson, supra, 547 F.2d at 1359 (citing Diaz v. United States, 223 U.S. 442, 458, 56 L. Ed. 500, 32 S. Ct. 250 (1912) and Reynolds v. United States, supra, 98 U.S. at 159). The Carlson court went on to state that:

 
Nor should the law permit an accused to subvert a criminal prosecution by causing witnesses not to testify at trial who have, at a pretrial stage, disclosed information which is inculpatory as to the accused. To permit the defendant to profit from such conduct would be contrary to public policy, common sense and the underlying purpose of the confrontation clause.

 Carlson, supra, 547 F.2d at 1359. Similar conclusions, which the Court believes cannot reasonably be questioned, have been reached by a number of other courts. *fn4" "Any other result would mock the very system of justice the confrontation clause was designed to protect." United States v. Mastrangelo, supra, 693 F.2d at 273.

 Moreover, most courts have agreed that a waiver of confrontation rights under these circumstances also waives any hearsay objection to the admissibility of the evidence. See United States v. Aguiar, supra, 975 F.2d at 47 ("A defendant who procures a witness's absence waives the right of confrontation for all purposes with regard to that witness, not just to the admission of sworn hearsay statements."); United States v. Thevis, supra, 665 F.2d at 630 ("waiver of [defendant's] right to confrontation in these circumstances also constituted a waiver of any hearsay objection"). Compare United States v. Carlson, supra, 547 F.2d at 1360 n.14 ("We need not go so far in this case as to hold that, when an accused threatens a potential witness into not testifying at trial, all extrajudicial statements of that witness, however unreliable or unbelievable, may be admitted in evidence at trial.").

 In Steele v. Taylor, supra, the Sixth Circuit explored at length the issue of whether a waiver of confrontation rights also waives any otherwise available hearsay objections. For many of the same public policy reasons set forth in the preceding paragraphs, the Steele court concluded that the hearsay rule must be substantially relaxed when the defendant has caused a witness's unavailability. 684 F.2d at 1201. The court in that case gathered and summarized a substantial history of both English and American cases supporting the proposition that a defendant who procures the absence of a witness waives his right to object to extra-judicial statements admitted at trial. Id. & n.10. This Court finds compelling the rationale set forth in Steele and each of the other cases discussed above. Therefore, the Court agrees that if any defendant was responsible for the absence of Arvell Williams from the trial in this case, that defendant will be deemed to have waived his confrontation rights and hearsay objections with respect to statements made by Arvell Williams.

 II

 Procedures For Determining Waiver of Confrontation Rights

 Based upon the foregoing statement of the law, the Court determined that it would be necessary to conduct a two-stage preliminary hearing in order to make determinations with respect to which defendants, if any, were responsible for the absence of Arvell Williams ...


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