United States v. Ramiro Gonzalez, 559 F.2d 1271 (5th Cir. 1977). · Go Syfert
United States v. Ramiro Gonzalez, 559 F.2d 1271 (5th Cir. 1977). Cases Citing This Book View Copy Cite
102 citation events (3 in the last 25 years) across 32 distinct courts.
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 37 distinct citers. How cited ↗
cited Cited "but see" Brown Transport Corp. v. Atcon, Inc
SCOTUS · 1978 · signal: but see · confidence high
But see United States v. Gonzalez, 559 F.2d 1271 (CA5 1977); United States v. Fiore, 443 F.2d 112 (CA2 1971).
discussed Cited "but see" Brown Transport Corp. v. Atcon, Inc.
SCOTUS · 1978 · signal: but see · confidence high
But see United States v. Gonzalez, 559 F. 2d 1271 (CA5 1977); United States v. Fiore, 443 F. 2d 112 (CA21971). c Also among the petitions for certiorari that were denied were those appearing to conflict with a decision of this Court.
discussed Cited as authority (rule) People v. Smith
Ill. App. Ct. · 2002 · confidence medium
See, e.g ., Fernandez , 892 F.2d at 981 (court refused to adopt a per se ban on admission of grand jury testimony, although court noted the lack of testing by cross-examination); United States v. Gonzalez , 559 F.2d 1271, 1273 (5th Cir. 1977) (lack of cross-examination was one factor against admission of grand jury testimony) .
discussed Cited as authority (rule) People v. Smith
Ill. App. Ct. · 2002 · confidence medium
See, e.g., Fernandez, 892 F.2d at 981 (court refused to adopt a per se ban on admission of grand jury testimony, although court noted the lack of testing by cross-examination); United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977) (lack of cross-examination was one factor against admission of grand jury testimony).
discussed Cited as authority (rule) United States v. Jean Joseph Deeb (2×)
11th Cir. · 1994 · signal: cf. · confidence medium
Cf. United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977) (holding that the pressure put on a co-conspirator, who had been convicted and granted immunity from further prosecution, to testify before a grand jury that indicted the defendant, made the giving of the testimony in the co-conspirator’s best interest and therefore not a statement against interest).
discussed Cited as authority (rule) United States v. Roman Magana-Olvera
9th Cir. · 1990 · confidence medium
See, e.g., United States v. Johnson, 802 F.2d 1459, 1465 (D.C.Cir.1986) (post-arrest statement not sufficiently against interest because it is “highly logical” for arrestee to trivialize his own involvement by implicating the defendant as the kingpin in a drug operation); United States v. Palumbo, 639 F.2d 123, 128 (3d Cir.) (Although certain hearsay statements could have been used to convict declarant for drug conspiracy, the fact that they were made while in police custody created “a very real danger that the motivation for the revelation may not have been to further truth, but to curr…
discussed Cited as authority (rule) United States v. Vigoa (2×) also: Cited "see"
D.N.J. · 1987 · confidence medium
Id. at 1273.
cited Cited as authority (rule) United States v. Williams
5th Cir. · 1987 · confidence medium
United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977).
cited Cited as authority (rule) United States v. Williams
5th Cir. · 1987 · confidence medium
United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977).
cited Cited as authority (rule) Richard A. Barker v. Paul Morris, Warden, California State Prison at Folsom
9th Cir. · 1985 · signal: cf. · confidence medium
Cf. United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977) (declarant’s grand jury testimony is unreliable where obtained by excessive prosecutorial pressure).
discussed Cited as authority (rule) State v. Buelow
Wis. Ct. App. · 1984 · confidence medium
However, these cases clearly state that it is the trial court’s decision on the admissibility of the former testimony which is a matter of discretion. 5 See United States v. Robinson, 635 F.2d 363, 364 (5th Cir), cert. denied, 452 U.S. 916 (1981) ; United States v. Gonzalez, 559 F.2d 1271, 1272-73 (5th Cir. 1977); United States v. Carlson, 547 F.2d 1346, 1354 (8th Cir. 1976), cert. denied, 431 U.S. 914 (1977); State v. Smith, 415 A.2d 553, 559 (Maine 1980); State v. Olsen, 258 N.W.2d 898 , 903 n. 2 (Minn. 1977); State v. Maestas, 584 P.2d 182, 188-89 (N.M.
discussed Cited as authority (rule) Commonwealth v. Daye (2×)
Mass. · 1984 · confidence medium
A judge should also exclude as probative evidence any statement by a witness so pressured by the prosecutors or grand jurors that the witness reasonably could have thought it was incumbent on him “to come up with an answer, whether or not it was true.” United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977).
discussed Cited as authority (rule) United States v. Hines
usafctmilrev · 1984 · confidence medium
See Rice v. Marshall, 709 F.2d 1100, 1104 (6th Cir.1983); Mattes v. Gagnon, 700 F.2d 1096, 1104 (7th Cir.1983); United States v. Chappell, 698 F.2d 308, 313 (7th Cir.1983); United States v. Friedman, supra, 593 F.2d at 538; United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977); United States v. Carlson, supra, at 1354.
discussed Cited as authority (rule) United States v. Daniel A. Monaco, Jr. (2×)
9th Cir. · 1984 · signal: cf. · confidence medium
Cf. United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977). 17 In Layton, we held admissible under 804(b)(3) inculpatory statements made spontaneously and in confidence to a trusted advisor. 720 F.2d at 560 .
discussed Cited as authority (rule) United States v. H & M, Inc.
M.D. Penn. · 1983 · confidence medium
If this were not the rule, the highest corporate officers would, in effect, be beyond the reach of the antitrust laws even when their companies are actively engaged in price fixing. 559 F.2d at 547 (citation omitted).
discussed Cited as authority (rule) United States v. H & M, INC.
M.D. Penn. · 1983 · confidence medium
If this were not the rule, the highest corporate officers would, in effect, be beyond the reach of the antitrust laws even when their companies are actively engaged in price fixing. 559 F.2d at 547 (citation omitted).
discussed Cited as authority (rule) Agnew v. State
Md. Ct. Spec. App. · 1982 · confidence medium
Certainly, a statement made under grant of immunity may lessen reliability, United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977), but the purpose of granting immunity is to secure testimony which could not otherwise be procured.
discussed Cited as authority (rule) United States v. John Martin
5th Cir. · 1980 · signal: cf. · confidence medium
Cf. United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977) (excluding statement against penal interest under Fed.R.
cited Cited as authority (rule) John Furtado v. Harold Bishop, John Furtado v. Harold Bishop
1st Cir. · 1979 · confidence medium
Compare United States v. Bailey, 581 F.2d 341, 348-50 (3d Cir. 1978); United States v. Gonzalez, 559 F.2d 1271, 1273-74 (5th Cir. 1977) (trustworthiness found lacking).
cited Cited as authority (rule) United States v. Jack Love
8th Cir. · 1979 · confidence medium
See United States v. Bailey, 581 F.2d 341 , 345 & n.4 (3d Cir. 1978); United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977).
discussed Cited as authority (rule) United States v. Turner
E.D. Mich. · 1978 · confidence medium
United States v. Bailey, 581 F.2d 341, 345 (3rd Cir. 1978); United States v. Lilley, 581 F.2d 182, 187-88 (8th Cir. 1978); United States v. Gonzales, 559 F.2d 1271, 1273 (5th Cir. 1978); United States v. White, 553 F.2d at 313 ; United States v. Rogers, 549 F.2d 490 , 498 n.8 (8th Cir. 1976), cert. denied, 431 U.S. 918 , 97 S.Ct. 2182 , 53 L.Ed.2d 229 (1977); United States v. McClendon, 454 F.Supp. 960, 962 (W.D.Pa. 1978). *198 The purport of these cases is that when immunity, plea agreements or even currying favor with the law enforcement officials is involved, there is a substantial likeliho…
discussed Cited as authority (rule) United States v. Gilberto Pablo Alvarez
5th Cir. · 1978 · confidence medium
Applying the first standard, we note that Lopez presumably testified in the hope of receiving preferential treatment and thus could have been motivated by a desire to “curry favor with the authorities.” Cf. United States v. Gonzales, 559 F.2d 1271, 1272 (5th Cir. 1977).
discussed Cited "see" United States v. Hsia
D.D.C. · 2000 · signal: see · confidence high
See United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977) (responses given to leading questions and not subject to cross-examination); United States v. Vigoa, 656 F.Supp. at 1506 (“testimony consisted of little more than ‘yes’ and ‘no’ responses to leading questions posed by the prosecutor”).
discussed Cited "see" United States v. Green
unknown court · 1996 · signal: see · confidence high
See United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977) (statement after conviction immunity not against penal interests). . ‘‘[The declarant] had an obvious incentive to spread blame and curry favor with the authorities by implicating the defendants.” U.S. v. Costa, 31 F.3d 1073, 1079 (11th Cir.1994).
cited Cited "see" United States v. Romeo Trinidad Flores, Jr.
5th Cir. · 1993 · signal: see · confidence high
See United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977).
cited Cited "see" U.S. v. Flores
5th Cir. · 1993 · signal: see · confidence high
See United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977).
discussed Cited "see" United States v. Simon Gabay
11th Cir. · 1991 · signal: see · confidence high
See, United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977). 3 The rationale for this finer level of scrutiny in criminal cases is the fear that the declarant may be acting out of a strong motive to exonerate himself by misrepresenting his own role and degree of culpability and attempting to shift a portion of the blame upon the codefendant.
discussed Cited "see" United States v. Phillip Bruce Lang
11th Cir. · 1990 · signal: see · confidence high
See United States v. Gonzalez, 559 F.2d 1271, 1274 (5th Cir.1977); 6 United States v. Thevis, 665 F.2d 616, 629 (5th Cir. Unit B), cert. denied, 459 U.S. 825 , 103 S.Ct. 57 , 74 L.Ed.2d 61 (1982); 7 United States v. Fernandez, 892 F.2d 976, 981-82 (11th Cir.1989).
cited Cited "see" United States v. Robert Atkins
5th Cir. · 1980 · signal: see · confidence high
See United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977) (statements after conviction immunity not against penal interests).
cited Cited "see" Laumer v. United States
D.C. · 1979 · signal: see · confidence high
See United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977) (statement made under offer of immunity lessens reliability).
cited Cited "see" United States v. Milton Edward Bailey
3rd Cir. · 1978 · signal: see · confidence high
See United States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977); United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976); cert. denied 431 U.S. 914 , 97 S.Ct. 2174 , 53 L.Ed.2d 224 (1977). 11 .
discussed Cited "see" United States v. Earl A. Garner, United States of America v. Everett C. McKethan
4th Cir. · 1978 · signal: see · confidence high
See Motes v. U. S., 178 U.S. 458, 471-472 , 20 S.Ct. 993 , 44 L.Ed. 1150 . 10 On the other hand, in United States v. Gonzalez, 5th Cir., 559 F.2d 1271 , the Fifth Circuit, in another drug offense case, held that the testimony of the grand jury witness was inadmissible.
discussed Cited "see" United States v. Calvin W. West, (Four Cases). United States of America v. Floyd Lee Davis, (Two Cases). United States of America v. Joseph Lee Dempsey (2×) also: Cited "see, e.g."
4th Cir. · 1978 · signal: see · confidence high
See Barber v. Page, 390 U.S. 719 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968) 6 Douglas v. Alabama, 380 U.S. 415 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965) 7 Compare United States v. Rogers, 549 F.2d 490, 500 (8th Cir. 1976) (prior testimony of witness with memory lapse had sufficient indicia of reliability so that Confrontation Clause was not violated by admission) with U. S. v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977) (grand jury testimony lacked surrounding indicia of reliability so that admission violated Confrontation Clause).
discussed Cited "see, e.g." State of Iowa v. Marquice Verron Morris
Iowa Ct. App. · 2016 · signal: see, e.g. · confidence medium
See, e.g., United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977) (holding statement was not admissible where witness had been given immunity and statement could not subject him to liability); Shakespeare v. State, 827 P.2d 454, 457 (Alaska Ct. App. 1992) (“Thus we have held that where the declarant is aware that he is not subject to prosecution for crimes revealed in a statement, the statement lacks trustworthiness and should not be construed as one against penal interest.”); State v. Hoak, 692 P.2d 1174, 1180 (Idaho 1984) (holding statement made under promise of immunity was not …
cited Cited "see, e.g." United States v. Robert J. Snyder
7th Cir. · 1989 · signal: see also · confidence medium
See also United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977); United States v. Vigoa, 656 F.Supp. 1499, 1506-07 (D.N.J.1987), aff'd, 857 F.2d 1467 (3d Cir.1988).
cited Cited "see, e.g." United States v. Young Brothers, Inc., Contractors
5th Cir. · 1984 · signal: see also · confidence medium
See also United States v. Gonzalez, 559 F.2d 1271, 1273 (5th Cir.1977) (grand jury testimony excluded because it failed to meet the reliability standards of 804(b)(5)).
discussed Cited "see, e.g." United States v. West (2×)
4th Cir. · 1978 · signal: compare · confidence low
Compare United States v. Carlson, 547 F.2d 1346 (8 Cir.) (admitting prior grand jury testimony under Rule 804(b)(5)) with United States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977) (testimony not admissible).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Ramiro GONZALEZ, Defendant-Appellant
76-3823.
Court of Appeals for the Fifth Circuit.
Sep 28, 1977.
559 F.2d 1271
Joe A. Cisneros, Fortunato P. Benavides, McAllen, Tex., for defendant-appellant., James R. Gough, U. S. Atty., George A. Kelt, Jr., Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Thornberry, Ainsworth, Roney.
Cited by 74 opinions  |  Published
RONEY, Circuit Judge:

This case involves the question of whether the grand jury testimony of a previously convicted coconspirator who refuses to testify at trial is admissible against a criminal defendant. We hold that the transcript is inadmissible hearsay because it does not qualify either as a statement against interest, Fed.R.Evid. 804(b)(3), or as a statement with “equivalent circumstantial guarantees of trustworthiness,” Fed.R.Evid. 804(b)(5).

The facts reflect a typical marijuana importation plan along the Texas border. Rogelio Guerrero was hired to drive a truck to a certain spot, wait for it to be loaded, and then drive it to a designated place to be turned over to someone else. In common parlance, he was hired as a “mule,” to be paid $500 for transporting some 2,160 pounds of marijuana.

The plan was unsuccessful and several participants were arrested, including Guerrero. At the time of his arrest, Guerrero said that he had been hired by a Mexican male, whom he would not identify. Subsequent to his conviction for possession with intent to distribute, 21 U.S.C.A. § 841(a)(1), for his role in this scheme, he was called before the grand jury and asked who had hired him. After agonizing over the dilemma of either testifying and exposing his family and himself to retaliatory injury by other criminals, or not testifying and incurring prolonged confinement by the Government for contempt, Guerrero eventually answered the leading questions of the prosecuting attorney to “finger” defendant Ramiro Gonzalez.

When Gonzalez came to trial, however, Guerrero refused to testify, even though he had already been convicted, was granted immunity, and was ultimately found in contempt. Deciding that Guerrero was “unavailable” as a witness within the meaning of Fed.R.Evid. 804, the district court thereupon admitted into evidence that portion of the grand jury transcript in which Guerrero identified defendant Gonzalez as the man who had hired him to drive the truck. The other evidence which tended to connect defendant with the importation was slight enough to make Guerrero’s grand jury testimony crucial. This appeal poses the issue of whether the grand jury testimony could be properly used to convict Gonzalez.

Guerrero was clearly “unavailable” under Fed.R.Evid. 804(a). “ ‘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[*1273] the court to do so.” Here, of course, Guerrero did so refuse and the court found him in contempt.

The Rule provides that certain statements are not excluded by the hearsay rule when the declarant is unavailable. The first of those provisions relied on by the Government is Fed.R.Evid. 804(b)(3), which codifies the “statement against interest” exception to the hearsay rule. It makes admissible “[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.” See also United States v. Bagley, 537 F.2d 162 (5th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 816, 50 L.Ed.2d 794 (1977).

We conclude that this section did not render Guerrero’s out-of-court statements admissible. First, since he had been convicted and given immunity, Guerrero’s statement could not subject him to criminal liability. In addition the pressures put on him by the prosecutor and the grand jury to testify would seem to make the giving of testimony to be in his best interest, rather than against it. As the Advisory Committee on the Federal Rules of Evidence noted, “a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest.” A complete reading of the grand jury transcript discloses that the witness was closely weighing whether it would be better for him to testify under the circumstances, or not to testify. He obviously decided it was to his best interest to testify. Given the prosecutor’s offer of immunity for offenses concerning this marijuana transaction, the only civil or criminal liability that he could face at the time would occur if he did not testify. Thus whether he told the truth or not was incidental to what would happen to him if he did not say something. If he answered the questions at the time, he would be free of the threat of contempt. The important thing to him was that he gave an answer, be it truth or not. Under these circumstances, it cannot be said that “a reasonable man in his position would not have made the statement unless he believed it to be true.”

Another provision of the same Rule makes admissible “a statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness,” if the court makes certain determinations regarding materiality, probative value, need for the evidence, and the interests of justice. Fed.R.Evid. 804(b)(5). The statement here fails to pass the test of “having equivalent guarantees of trustworthiness.”

First, as we have observed, the pressure of the prosecutor and the members of the grand jury on the witness was such that it was incumbent upon him to come up with an answer, whether or not it was true. Second, Guerrero’s answers were given to leading questions which would not have been permitted at trial. Fed.R.Evid. 611(c). Such questions are prohibited on the rationale that they might possibly distort the truth of the answers. Third, the fact that the witness was under oath, and subject to the penalties of perjury, loses any significance it might have in view of the threats made by the prosecutor that if the witness remained silent after being given immunity he could be repeatedly called before successive grand juries and given an unlimited number of repeated six-month contempt sentences if he did not testify. Fourth, being under fear that if he told the truth about who hired him physical harm might come to him and his family, Guerrero would have some incentive not to tell the truth. Fifth, the testimony was not cross-examined, was readily accepted at first telling, and was unsupported by detailed facts concerning Gonzalez.

In United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2174, 53 L.Ed.2d 224 (1977), the court held admissible the grand jury testi[*1274] mony of an unavailable witness under Fed. R.Evid. 804(b)(5). There, a coconspirator in a cocaine distribution scheme had named the defendants as his suppliers and customers when he testified before the grand jury. At trial, however, he refused to testify because of threats made against him by the defendant. That case differs from this in that here there were no threats of harm directly attributed to defendant Gonzalez. In Carlson, however, notwithstanding the threats, the witness was found in contempt by the district court, and his grand jury testimony was received in evidence.

The Eighth Circuit concluded there was “ a strong indication of reliability in” that grand jury testimony. It first noted that the witness was under oath and subject to the penalties of perjury. There is no indication, however, that the witness there was confronted with the open-ended penalties for contempt with which Guerrero was repeatedly threatened in the instant case and that the witness was as unwilling or as reluctant as Guerrero to tell the truth at the time of testimony. The Carlson court then noted that.the witness there specifically stated at the time of trial that he had told the truth to the grand jury, but was afraid to testify to that effect. There was no such specific reaffirmation by Guerrero in this case. We thus conclude that Carlson is distinguishable on the reliability of the grand jury testimony.

The statement having failed to pass the trustworthiness test of the “Other Exceptions” rule, it is not necessary to determine whether the admission would have been error because of the failure of the Government to meet the notice requirements of Fed.R.Evid. 804(b)(5) as defendant claims. That portion of the rule provides that “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, his intention to offer the statement and the particulars of it, including the name and address of th¿.! declarant.”

The conviction being reversed because of the admission of the grand jury testimony in violation of the hearsay rule, it is not necessary to consider defendant’s argument that the introduction of such evidence also violated his constitutional right to confrontation. The Government remains free to retry the defendant without the hearsay evidence.

REVERSED AND REMANDED.