Furtado, supra, which involved a lawyer's out-of-court statement made under oath, certainly does not. Nor do United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976) and United States v. Murphy, 696 F.2d 282 (4th Cir. 1982), the other two cases cited by appellee. Carlson and Murphy both involved grand jury testimony which, at least in the case of Murphy, was supported by "strongly corroborative testimony and proof, some of which was unimpeachable."
Id. (quoting United States v. Marchand, 564 F.2d 983, 999 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978)). See, e.g., United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983); United States v. Murphy, 696 F.2d 282, 284 (4th Cir. 1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1303 (1983); United States v. Distler, 671 F.2d 954, 958 (6th Cir. 1981); United States v. Rogers, 549 F.2d 490, 495-96 (8th Cir. 1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1977).
The affidavit and Hernandez's hearsay testimony "explaining" it contained statements both inculpating and exculpating McCall. McCall contends that admission of Neal's affidavit violated both 804(b)(5) of the Federal Rules of Evidence and the confrontation clause of the sixth amendment. The government asserts in response that the affidavit bore sufficient indicia of reliability to satisfy the "equivalent circumstantial guarantees of trustworthiness" required by 804(b)(5) of the Federal Rules of Evidence. United States v. Murphy, 696 F.2d 282 (4th Cir. 1982); United States v. Garner, 574 F.2d 1141 (4th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978); United States v. West, 574 F.2d 1131 (4th Cir. 1978). It also argues that the "indicia of reliability" found in the circumstances of obtaining the affidavit and admitting it into evidence insulate it from constitutional attack on sixth amendment grounds. Although the majority does not reach the sixth amendment question, I would hold that admitting the affidavit of an unavailable witness violated McCall's sixth amendment right to confront the witnesses against him. Before discussing the merits of the sixth amendment claim, I briefly set out my reasons for reaching the constitutional question.
It would seem strange, for example, to assert that a witness can avoid introduction of testimony from a prior proceeding that is inconsistent with his trial testimony, see Rule 801(d)(1)(A), by simply asserting lack of memory of the facts to which the prior testimony related. See United States v. Murphy, 696 F.2d 282, 283-284 (CA4 1982), cert. denied, 461 U.S. 945 (1983). But that situation, like this one, presents the verbal curiosity that the witness is "subject to cross-examination" under Rule 801 while at the same time "unavailable" under Rule 804(a)(3).
"It would seem strange . . . to assert that a witness can avoid introduction of testimony from a prior proceeding that is inconsistent with his trial testimony . . . by simply asserting lack of memory of the facts to which the prior testimony related." United States v. Owens, 484 U.S. 554, 563 (1988) (citing United States v. Murphy, 696 F.2d 282, 283-84 (4th Cir. 1982), where grand jury testimony was held properly introduced under Rule 801(d)(1) when a witness claimed memory loss). Simply put, a witness cannot have it both ways: a witness cannot make a sworn statement and then attempt to wiggle out from it by refusing to answer or falsely asserting he cannot recall it.
Given the inconsistencies in Milosavljevic's trial testimony, the inconsistent portions of her grand jury testimony were no doubt admissible under Rule 801(d)(1)(A). See United States v. Murphy, 696 F.2d 282, 284 (4th Cir. 1982) (explaining that Rule 801(d)(1) "provide[s] a party with desirable protection against the 'turncoat' witness who changes h[er] story on the stand and deprives the party calling h[er] of evidence essential to his case" (internal quotation marks omitted)). Moreover, because Milosavljevic called into question the entirety of her grand jury testimony by suggesting that the government pressured her into providing certain answers, the entirety of the testimony was necessary to refute that contention by showing that the government exerted no improper pressure at any point during the testimony.
Douglas concludes that given the witness's assertion of privilege and refusal to testify, "petitioner's inability to cross-examine . . . as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause." Id. at 419; see also United States v. Murphy, 696 F.2d 282, 286 (4th Cir. 1982) (witness "refused to testify at all, thus rendering Rule 801(d)(1) inapplicable"). We see no reason for a different result in this case.
The nature of grand jury testimony thus provides some indicia of trustworthiness. See United States v. Murphy, 696 F.2d 282, 286 (4th Cir. 1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2123, 2124, 77 L.Ed.2d 1303 (1983); United States v. Garner, 574 F.2d 1141, 1144 (4th Cir.), cert. denied sub nom. McKethan v. United States, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978); United States v. West, 574 F.2d 1131, 1136 (4th Cir. 1978).
Finding other guarantees of trustworthiness, however, this circuit has affirmed on a number of occasions the admission of grand jury testimony under 804(b)(5). United States v. Murphy, 696 F.2d 282, 286 (4th Cir. 1982); United States v. Walker, 696 F.2d 277, 281 (4th Cir. 1982); United States v. Garner, 574 F.2d 1141, 1144 (4th Cir. 1978); United States v. West, 574 F.2d 1131, 1136 (4th Cir. 1978). Other circuits have reached the same result. See, e.g., United States v. Barlow, 693 F.2d 954 (6th Cir. 1982); United States v. Boulahanis, 677 F.2d 586, 589 (7th Cir. 1982); United States v. Carlson, 547 F.2d 1346, 1354-55 (8th Cir. 1976).
The circuits are divided. Compare United States v. Panzardi-Lespier, 918 F.2d 313, 316-17 (1st Cir. 1990) (admissible); United States v. Curro, 847 F.2d 325, 327-28 (6th Cir.) (admissible), cert. denied, 488 U.S. 843, 109 S.Ct. 116, 102 L.Ed.2d 90 (1988); United States v. Marchini, 797 F.2d 759, 763 (9th Cir. 1986) (admissible), cert. denied, 479 U.S. 1085, 107 S.Ct. 1288, 94 L.Ed.2d 145 (1987); United States v. Murphy, 696 F.2d 282, 286 (4th Cir. 1982) (admissible), cert. denied, 461 U.S. 945, 103 S.Ct. 2123, 77 L.Ed.2d 1303 (1983); United States v. Carlson, 547 F.2d 1346, 1355 (8th Cir. 1976) (admissible) with United States v. Fernandez, 892 F.2d 976, 982 (11th Cir. 1989) (only extraordinarily trustworthy grand jury testimony admissible), cert. dismissed, 495 U.S. 944, 110 S.Ct. 2201, 109 L.Ed.2d 527 (1990); United States v. Thevis, 665 F.2d 616, 619 (5th Cir.) (dictum) (not generally admissible under evidentiary rules), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982). It would appear that the time is coming for us to reconsider the issue, but this is not the case for that as it makes no difference in the unanimous result the panel reaches in this case affirming the conviction.