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UNITED STATES v. BAILEY

September 7, 1977

UNITED STATES OF AMERICA
v.
MILTON EDWARD BAILEY, Defendant



The opinion of the court was delivered by: TEITELBAUM

 FACTS

 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. *fn1"

 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. *fn2" 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, 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. *fn3"

 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, committed the robbery at Colony Federal, 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. *fn4"

 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.

 ISSUE

 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.

 EVIDENTIARY ADMISSIBILITY

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

 
"(b) The following are not excluded by the hearsay rule if the declarant is ...

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