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Fed. R. Evid. 804(b)(5) provides that a statement not specifically covered by any of the hearsay exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
Five appellants were convicted of conspiring to travel in and use the facilities of interstate commerce to promote, carry on, and distribute the proceeds of unlawful activities involving prostitution in violation of 18 U.S.C.S. § 371, 18 U.S.C.S. § 1952(a)(1), (3). The two clubs and massage parlor involved were located near the Illinois-Wisconsin border and provided sexual services in private areas. Appellants owner and manager of the businesses were also convicted of conspiring to defraud the government by obstructing the lawful functions of the Internal Revenue Service (IRS). Proceeds from the businesses were laundered through church bank accounts. On appeal, the appellants maintained that introduction of a former employee’s grand jury testimony was improper under both Rule 804(b)(5) of the Federal Rules of Evidence (the catch-all hearsay exception) and the confrontation clause of the sixth amendment, because the former employee was not shown to be unavailable on the day that his grand jury testimony was presented to the jury and no other evidence corroborated the substance of his testimony.
Did the grand jury testimony of a former employee violate Fed. R. Evid. 804(b)(5)?
The court affirmed the convictions finding no reversible error. The court found that the admission of the grand jury testimony of a former employee did not violate Fed. R. Evid. 804(b)(5) or appellants' confrontation rights under U.S. Const. amend. VI. The record showed that despite an offer of immunity and a contempt finding, the witness refused to testify at trial. The court found that the witness was unavailable and his testimony had adequate indicia of trustworthiness to overcome hearsay or constitutional concerns.