Professional Documents
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United States v. Gregory Jenkins, 579 F.2d 840, 4th Cir. (1978)
United States v. Gregory Jenkins, 579 F.2d 840, 4th Cir. (1978)
United States v. Gregory Jenkins, 579 F.2d 840, 4th Cir. (1978)
2d 840
3 Fed. R. Evid. Serv. 268
As a witness before the grand jury on September 24, 1975, Jenkins had been
questioned on his movements in the first hours of July 26, 1975, when he was
seen with Beatrice Johnson in the neighborhood of the Lyles residence. His
testimony had been that he was endeavoring to see a friend living in the 1300
block of North Ellwood Avenue and that Johnson, just along for the ride, did
not leave the van.
Discerning a difference between his and the agents' statements, the jury
recalled Jenkins on January 7, 1976. At this appearance he repeated his prior
statement, averring that Johnson was along "just to ride across town" with him,
but admitted that she did leave the van for about ten minutes during his
absence, coming back after he had returned. He still insisted that she had not
told him that she had any other reason for accompanying him and that he did
not know where she had gone.
In his trial on the perjury indictment, Jenkins gave yet a third account of his
activity that night. It was that he first stopped in the 1300 block of North
Ellwood Avenue to visit a friend and that, as he left, Johnson asked to visit
friends in the 1200 block. In compliance, he then drove to the 1200 block,
parked near the corner, and let her out of the van to go to her friend's house
while he waited. Shortly she returned and they departed.
The indicted statements of Jenkins before the grand jury were (a) that he gave a
false reason for his driving Johnson to the 1200 block of North Ellwood
Avenue and (b) that he gave a false account of the sequence of events
surrounding her visit to the Lyles residence.
I.
7
between Johnson and Lyles were admitted in evidence against him at trial. The
primary ground of his objections is that the statements by the two of them were
inadmissible hearsay as to Jenkins, inasmuch as he was not a party to the
conversations and was not present at either end of the line nor mentioned
during them.2 However, irrespective of the accuracy of their characterization by
Jenkins as hearsay, we cannot agree with him as to the admissibility of the
statements.
8
The trial judge cautiously and appropriately restricted the scope to be given this
testimony, saying:
9 certain situations, evidence may be admitted not (sic) only for a particular, or for
"In
a limited purpose, and not for general purposes. You have heard, during the course
of this evidence in this case certain tapes of telephone conversations that had been
authorized by Court order, and you have seen also and heard the transcripts of those
conversations, and they have been admitted into evidence as Government's Exhibits .
. .. The conversations were not admitted to establish the truth of the matters
contained in those conversations, but only to indicate the purpose of the visit by
Miss Johnson to the 1200 block North Ellwood. For that limited purpose, you may
give it such weight as you may think it is entitled to."
10
The sole function of the challenged tapes was to apprise the jury of "Miss B's"
state of mind her Knowledge that Lyles was waiting to complete a transaction
with her and her Intention to go to meet him. Given this knowledge and
intention, the jury might reasonably infer, From the fact that Johnson and
Jenkins appeared at Lyles' residence very shortly thereafter, that Jenkins drove
there because Johnson (the "Miss B") had asked him to do so. If the jury
reached this conclusion, it could properly conclude that Jenkins had lied about
his reason for making the trip.
11
12
The only statement introduced on the issue of intent which, arguably, was for
the truth of the matter therein expressed, and hence hearsay Johnson's closing
remark, "I'm on my way" nevertheless would be admissible under Rule 803(3)
of the Federal Rules of Evidence,3 both to show her intent and to promote an
inference that she actually effectuated her intent and set out for Lyles' house.
13
Precedent for the use of these communications, to which the accused was a
stranger, is found in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 295,
12 S.Ct. 909, 36 L.Ed. 706 (1892), which involved claims on insurance policies
naming one Hillmon as the insured. The designated beneficiary, his wife,
sought recovery on them, asserting that he had died accidentally while
travelling through southern Kansas to camp at Crooked Creek.
14
A body had been found there and the question in suit was whether it was the
body of Hillmon or of one Walters. The defendant insurer sought to prove that
Walters was in the area where the body was discovered. As placing him there,
letters written by Walters just previously were tendered in evidence but
excluded by the trial court. On appeal this ruling was reversed, the Court
reasoning that the letters were receivable toward establishing that Walters
intended to go to Crooked Creek and that this intention was pertinent to show
that he actually did go.
15
Presently, Pari ratione, the tapes were competent to establish the intention of
Johnson to go to the home of Lyles early on July 26 and, hence, the fair
deduction that she acted on that intention. The opinion in Hillmon put it this
way:
Thus, the tapes attacked Jenkins' explanation to the grand jury as to why he set
out with Johnson in the early morning hours of July 26 and subsequently
stopped near the Lyles residence.
18
Jenkins' reliance upon the limitation of Hillmon engrafted upon Rule 803(3) by
the Congress when it approved the Federal Rules of Evidence is misplaced.
Approving the Rule in its submitted form, the Congress directed only that it be
construed to confine the doctrine in Hillmon so that statements of intent by a
declarant would be admissible only to prove the Declarant's future conduct, not
the future conduct of others. See H.R.Rep.No.650, 93d Cong., 1st Sess. 13-14
20
This case is thus unlike United States v. Kaplan, 510 F.2d 606 (2 Cir. 1974),
cited by appellant. There, the defendant was convicted of unlawful possession
and distribution of heroin. The Government's case "depended almost entirely
upon the testimony of a single narcotics agent," who testified extensively about
his relationship with a third party, Lange, and especially about a meeting
between himself, Lange, and defendant Kaplan, at which the agent purchased
narcotics from defendant. Id. at 607-08. At trial, the agent described a
telephone conversation the day before the meeting in which Lange stated that
"his connection (Kaplan) would be there with him". Id. at 608. The account of
the telephone conversation was admitted, over objection, "but only for the
purpose of explaining (the agent's) 'state of mind' . . . ." Id.
21
The Second Circuit reversed, concluding that the evidence offered by the agent
should have been excluded because of "its overwhelmingly probable misuse by
the triers of fact as evidence that appellant (Kaplan) was in fact Lange's
connection . . . ." Id. at 610.
22
We are not persuaded by Jenkins' reliance upon Kaplan, for we find significant
differences between the two cases. Most importantly, the statements in Kaplan
were accusatorial statements from Lange to the agent, regarding the Activities
of Kaplan. Here, the transcripts of the intercepted telephone conversations were
offered only to show Why Jenkins behaved as he did. The purpose was not to
show his conduct on the night in question. Further, as we have intimated,
Supra, p. 842, unlike the Kaplan court, which determined the agent's state of
mind to be neither material nor relevant, 510 F.2d at 610, we have concluded
that "Miss B's" state of mind was material, given the circumstances of this case.
II.
23
that the inquest of the grand jury was shaped to the activities of Lyles, not only
when he was alone, but more to his contacts with other persons, as the charge
against him was "distribution" to customers. Appellant's grand jury testimony
was material to the identification of "Miss B" as the woman who went to see
Lyles and as a potential buyer. This aim would have been advanced if Jenkins
had told the jury that he had taken her to the residence of Lyles.
24
Furthermore, the explanation would have matched the tryst arranged in the
telephone conversations, and the jury then would have known that the "Miss B"
of the telephone conversations was Beatrice Johnson. Again, the falsity of the
explanation was material because it hindered the grand jury's inquiry as to
Lyles, since it contradicted the report of the Government agents that they had
seen her go into the Lyles residence.
25
For these reasons, the judgment of the District Court will not be disturbed.
26
Affirmed.
WIDENER, Circuit Judge, dissenting:
27
28
The only question before us in this part of our consideration of this perjury trial
is whether Jenkins knowingly drove Johnson to Lyles' home, or whether, as
Jenkins testified to the grand jury, he was on a different mission of his own,
with Johnson simply going along for the ride.
29
The tapes were not needed to prove that Johnson actually visited Lyles'
residence on the night in question, or even that Jenkins dropped her off in the
vicinity. The point was simply not contested; Jenkins admitted the fact, and in
addition there was evidence from the surveilling agents who saw her. The only
thing the tapes were needed for, from the government's standpoint, was to
support an inference that Johnson asked Jenkins to drive her by Lyles' house,
and that Jenkins therefore lied to the grand jury when he denied knowledge of
where Johnson was going. Given this central purpose, the taped conversations
were hearsay.
30
The government contends in its brief that the tapes were not introduced to prove
that Johnson asked Jenkins to drive her to Lyles' house. Indeed, it concedes that
they would not be admissible for that purpose,1 a concession I think the
majority incorrectly refuses to accept. Rather, the government claims the tapes
were needed only to show that Johnson wanted to go to Lyles' house right away.
But this fact is relevant to the perjury charge only to the extent that it supports
an inference that Johnson requested Jenkins to drive her to Lyles' house, the
very fact the government concedes the tapes would not be admissible to prove.
31
32
Our case is even stronger for the defendant, for in Kaplan the statement was
baldly accusatorial as the majority acknowledges, while here the accusatory
nature of the statement is only arrived at by inference.
33
While I agree with part II of the opinion as to materiality, I think the conviction
should be reversed and the case remanded for a new trial because of the
improper admission of hearsay. I believe the opinion sets a precedent,
dangerous in scope, for the promiscuous admissibility of wiretap evidence.
The case was originally argued November 12, 1976 before a panel composed
of Bryan, Craven and Widener, JJ. Because of the death of Judge Craven before
a decision was reached, it became necessary to order a reargument of the case
before a reconstituted panel
Jenkins also challenges the relevancy of the tapes but, as the discussion in text
will show, this claim is without merit
In its brief, the government states, "Jenkins seems to be claiming that Johnson's
telephonic agreement to meet Lyles cannot be used to prove (1) that Johnson
told Jenkins she wanted him to drive her to Lyles' house, and (2) that Jenkins
agreed and then drove her there. The Government agrees. The telephone calls
could not be used to prove those facts and were not introduced for that purpose.
As stated in its pre-trial memorandum, and as adhered to in its case and
argument, the Government merely wanted to use the telephone calls to show
that Johnson wanted to go to Lyles' house right away." (Italics added)