Appeals from judgments of the United States District Court for the Southern District of New York, John M. Walker, J., convicting appellants of distributing and possessing with intent to distribute cocaine, and of conspiring to commit that offense. Conviction of appellant Roberto Salvador summarily affirmed. Appellant Oscar Salvador claims district court erred in excluding exculpatory, out-of-court statement of co-defendant. Conviction of Oscar Salvador affirmed.
Before: FEINBERG, Chief Judge, KEARSE and WINTER, Circuit Judges.
Oscar and Roberto Salvador appeal from judgments of the United States District Court for the Southern district of New York, after a jury trial before Judge John M. Walker, convicting both Oscar and Roberto on one count of conspiring, with each other and with co-defendant Juan Antonio Guzman, to violate the narcotics laws and an additional count of distribution and possession with intent to distribute cocaine.*fn1 Oscar was sentenced to concurrent four-year prison terms, three years of special parole and a $100 special assessment. Roberto was sentenced to concurrent eight-year prison terms, three years of special parole and a $150 special assessment. Roberto's attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), seeking to be relieved, and the government has moved for summary affirmance. We grant both motions. Oscar argues on appeal that the trial judge erred in excluding an exculpatory statement made out of court by Guzman. For reasons set forth below, we also affirm Oscar's conviction.
From the evidence at trial, at which neither of the Salvador brothers testified, the jury could have found that in late August 1986, Oscar participated with Roberto and Guzman in a plan to sell about one-half of a kilogram of cocaine to Miguel Leyva, a Drug Enforcement Administration (DEA) informant. After a number of telephone conversations and three prior meetings, on August 25 and 26, the Salvadors and Guzman met Leyva again to consummate the transaction. DEA agents arrested them and seized a package containing the cocaine. Thereafter, the Salvadors and Guzman were indicted in a three-count indictment. Guzman was charged in all three counts.
Subsequently, Guzman decided to plead guilty to count three of the indictment, which charged him and the Salvadors with distributing and possessing cocaine with intent to distribute. On November 17, 1986, just prior to entry of Guzman's guilty plea in satisfaction of count three of the indictment, pursuant to an oral plea agreement, an Assistant United States Attorney (AUSA) questioned Guzman for less than half an hour about the facts of the case, in order to have a basis for cross-examining him should he later testify as a defense witness at trial. During this brief meeting, Guzman made assertions that contradicted the government's independent evidence but the government made no attempt to confront him with what the government regarded as lies. Guzman did not agree to testify as a government witness.
According to the AUSA, Guzman stated during the interview that Oscar Salvador was present at the meetings on August 25 and 26, but that Oscar "was not an active participant in these things, that he did not know what was going on, that he was not a part of the deal." Guzman, however, refused on Fifth Amendment grounds to testify at trial as a defense witness for Oscar. After questioning Guzman outside the presence of the jury, the district court found that Guzman was entitled to assert his Fifth Amendment privilege in order to protect himself against the charges in the two counts against him that had not been dismissed as well as against other possible charges. Thereafter, Oscar tried to introduce into evidence the hearsay exculpatory statement of Guzman to the AUSA.
Judge Walker refused to admit this evidence, stating that Guzman's statement was "of the most conclusory nature . . . and . . . the indicia of reliability are far too insufficient" and that here was insufficient corroboration to clearly indicate the trustworthiness of the statement. Thereafter, the jury convicted Oscar on the two counts of the indictment in which he was charged.
The only issue on appeal is whether the district court properly excluded at trial Guzman's hearsay statement on November 17, 1986 to the AUSA. The relevant evidence rule is Rule 804, which provides as follows:
Rule 804. Hearsay Exceptions: Declarant Unavailable
(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant --
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the ...