United States v. Bailey
439 F. Supp. 1303 (W.D. Pa. 1977)

TEITELBAUM, J. On June 9, 1976, the defendant, Milton Edward Bailey, was indicted by a Federal Grand Jury sitting in the Western District of Pennsylvania. The two-count indictment, alleging violations of Sections 2, 2113(a) and 2113(d) of Title 18, United States Code, charged the defendant with the February 6, 1975, armed robbery of the branch office of the Colony Federal Savings and Loan Office in Aliquippa, Pennsylvania.

Palm prints taken from the teller's counter at the bank were determined to be those of John Bernard Stewart. Stewart was indicted and on April 29, 1976, pursuant to a plea bargain, gave a written statement to the Federal Bureau of Investigation detailing the robbery and naming Milton Edward Bailey as his accomplice.(1)1

A major issue at trial was identification. Four of the eyewitnesses to the robbery did not identify the defendant at trial and had made no pretrial photographic identification.(2)2 Two other eyewitnesses testified that they had picked the defendant's picture out of a pretrial photographic display and, in Court, they were only able to make a qualified identification of the defendant.

John Bernard Stewart, who at the time of his guilty plea to the instant robbery had agreed to testify for the government, was called, out of the presence of the jury, as a witness. However, Stewart refused to testify despite an order of the Court to do so. In view of Stewart's refusal, the government moved, pursuant to Rule 804 of the Federal Rules of Evidence, to have Stewart's written statement admitted into evidence. The Court granted both counsel a day's recess to research the question of admissibility. After argument, the Court admitted the statement under Rule 804(b)(5). Thereafter, a defense counsel, having previously been given a copy of the statement, was given a three-day recess to prepare to meet the statement and was told additional time would be given if needed.

The detailed statement of John Bernard Stewart, which was read into evidence by Special Agent Preston of the Federal Bureau of Investigation, alleged that Stewart and the defendant, Bailey, using the defendant's girlfriend's car, drove to Aliquippa from Washington, D.C., the morning of the robbery, searched Aliquippa for an opportune bank to rob, drove to Pittsburgh, Pa. where they split up and met again in Washington, D.C., to divide the proceeds of the robbery.

Counsel, on cross-examination, was permitted to impeach Stewart by questioning Agent Preston about Stewart's prior criminal record and motive to lie.

Upon the foregoing testimony, the jury returned a verdict of guilty as to both counts of the indictment. Defendant has now moved for a new trial and/or judgment of acquittal.


The issue to be decided is whether the out-of-court statement of Stewart was properly admitted into evidence as a hearsay exception under Rule 804(b)(5) of the Federal Rules of Evidence, and, if so, whether its admissibility comports with the Sixth Amendment right to confront one's accusers.


Rule 804(b)(5) formulates a new "trustworthiness" exception to the hearsay rule....

The first question to be asked is whether Stewart was "unavailable" within the ambit of 804(b)(5). The answer to this question is easily provided by 804(a)(2) which states:

(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant (2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so.

In the case sub judice, Stewart refused to testify in spite of an order of Court. Stewart, therefore, was clearly unavailable for purposes of application of the Federal Rules of Evidence in general and 804(b)(5) in particular.

We now turn to an examination of the specific requirements of admissibility under 804(b)(5).

The first requirement is that the statement offered be evidence of a material fact. All parties concede that identity was a material issue at trial.

The second requirement is that the statement be more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. This requirement was satisfied because no other person was able to provide the specific evidence as to identity that was furnished via Stewart's statement.

The third requirement is that the general purpose of the Rules and the interests of justice will be best served by admission of the statement into evidence. Stewart testified in his statement that defendant and he were driving the car that belonged to the mother of defendant's girlfriend. That particular car was in Aliquippa at the time of the robbery and those persons who robbed the bank used that car to flee.(3)5 Such a corroborating circumstance serves to guarantee the trustworthiness of the statement and mandates its admission in the interests of justice.

Additionally, the statement cannot be admitted under 804(b)(5) unless the adverse party knows of it sufficiently in advance of trial to be provided with a fair opportunity to meet it. The purpose of this notice requirement is to give the adverse party an adequate opportunity to prepare to contest the use of the statement. Although notice was not given to defense counsel prior to trial, the trial was recessed for three days to enable counsel to prepare to meet Stewart's statement and additional time was made available to him if necessary. The failure of pretrial disclosure occurred because Stewart's "unavailability" did not arise until trial when he refused to testify in defiance of this Court's Order. The government could not know whether Stewart would be unavailable to testify until after his refusal during trial. Thus, the notice requirement of 804(b)(5) was fulfilled in both spirit and purpose by recessing the proceedings. It is significant to note that defendant does not claim three days was insufficient for investigation or that he was prejudiced in any manner by the procedure utilized. Under the circumstances sub judice, Stewart's statement was properly admitted under Rule 804(b)(5).

[Discussion of sixth amendment right of confrontation is omitted.]


We have examined defendant's other contentions and find them to be without merit. Defendant's motion for a new trial and/or judgment of acquittal is therefore denied. An appropriate Order will issue.

Do you agree with the district court's use of Rule 804(b)(5) in Bailey? If you represented the defendant, what counter arguments would you make to the Court of Appeals?

1. 1. Ms. Caroline Thomas and Mrs. Regina Dorsey both testified that John Bernard Stewart was a friend of Milton Bailey.

2. 2. Tellers Farinelli and Cavender were ordered to lie face down on the floor and they never even glimpsed the robber standing near the manager's desk. Likewise, the customer, Mr. Sylvester, was struck on the head from behind and had only the briefest opportunity, as he fell from his chair onto the floor, to see his assailant's face.

3. 5. One of the witnesses made a positive identification of the car as being the getaway vehicle.


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