United States of America, Appellee, v. Addie Hardrich, A/k/a Addie Donald, Iii, A/k/a Rikky Donald,iii, Appellant, 707 F.2d 992 (8th Cir. 1983)

Addie Hardrich was convicted in the federal district court, the Honorable C. Arlen Beam presiding, on eleven counts of uttering forged United States Treasury checks. 18 U.S.C. § 495. He was sentenced to imprisonment for a period of one year on each of eleven counts; the sentences of imprisonment on counts one through ten were ordered to run consecutively one to the other.¹  On count eleven the defendant's sentence was suspended and he was placed on two years probation following the service of sentence imposed on the first ten counts. On appeal Hardrich raises several alleged errors at trial. Upon review we affirm the judgment of conviction.

In the fall of 1979, while the defendant Hardrich was employed as a Veterans Affairs counselor at the University of Nebraska at Omaha, ten United States Treasury checks were discovered missing from that office. In tracing these checks, eight of the ten missing were found to have been negotiated by means of "split deposits" into accounts held by Addie Hardrich. Additionally, a Social Security check was negotiated into an account held by Addie Hardrich.

On appeal Hardrich claims several alleged errors at trial: (1) he asserts the Government's and trial court's failure to grant immunity to two defense witnesses deprived him of a fair trial; (2) that refusal by the district court to permit him to present the substance of admissions made by defense witnesses when interviewed by defendant's counsel's law clerk denied him a fair trial; (3) that the trial court abused its discretion in admitting certain inconclusive opinions by the Government's handwriting expert; (4) that the trial court abused its discretion in admitting evidence of defendant's prior criminal record and bad acts; and (5) that the trial court erred in denying defendant's motion to dismiss the indictment based on alleged violations of the fifth and sixth amendments.

During the trial, Addie Hardrich attempted to present the testimony of two brothers, Larry and David Ebberson; Hardrich claimed their testimony exculpated him. The Ebberson brothers, who were both then incarcerated in the Nebraska Penitentiary, refused to testify on fifth amendment privilege grounds. Hardrich claims it was error for the district court to have refused to grant judicial immunity to the Ebberson brothers. There exists a divided view on whether the court can grant a witness judicial immunity. Compare United States v. Thevis, 665 F.2d 616, 639-40 (5th Cir. 1982), cert. denied, --- U.S. ----, 103 S. Ct. 57, 74 L. Ed. 2d 61 (1982) with Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980). See also United States v. Saettele, 585 F.2d 307 (8th Cir. 1978) (Bright, J., dissenting); In re Daley, 549 F.2d 469, 479 (7th Cir. 1976), cert. denied, 434 U.S. 829, 98 S. Ct. 110, 54 L. Ed. 89 (1977); Earl v. United States, 361 F.2d 531, 534-35 (D.C. Cir. 1966), cert. denied, 388 U.S. 921, 87 S. Ct. 2121, 18 L. Ed. 2d 1380 (1967). Although a United States attorney may request immunity,²  it is doubtful that a district judge may order "judicial immunity" for a reluctant witness in this circuit. See United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977). However, assuming the district court has such authority, it is clear that the proffered testimony must be clearly exculpatory. This showing was absent here. The proffered testimony of the two witnesses merely established incriminating evidence of a third party, but in no way exonerated the defendant here. We find no error in the district court's refusal to grant immunity.³ 

Hardrich also contends that refusal by the district court to permit him to present the substance of admissions made by the Ebberson brothers when interviewed by Hardrich's counsel's law clerk denied him a fair trial. Under rule 804(b) (3) of the Federal Rules of Evidence such a statement must be corroborated by circumstances clearly indicating its trustworthiness in order to be admissible. This was not done here; we find no error in the district court's ruling.

Hardrich next argues that the trial court abused its discretion in admitting certain inconclusive opinions by the Government's handwriting expert. Question Examiner Thomas V. McAlexander, of the Secret Service, testified that some of the endorsements and signatures on deposit and withdrawal slips were made by Addie Hardrich, some of them "may have been written" by Addie Hardrich, that there was no evidence that Addie Hardrich wrote any of the material on certain checks, deposit and withdrawal slips and that Mr. Hardrich "probably wrote" endorsements on certain checks. The district court found such testimony was sufficiently probative so as to be admissible under rule 702, Federal Rules of Evidence. We find no abuse of discretion in this ruling.

The district court allowed the Government to prove that Hardrich had been convicted of a prior felony conviction of uttering a forged instrument. We find this evidence was properly offered and received under rule 404(b), Federal Rules of Evidence, to establish identity and intent. The two crimes were sufficiently similar to be admissible under rule 404(b). The evidence showed that in both crimes, Hardrich uttered checks stolen from his employer. Further, any concern for "danger of unfair prejudice" was cured by the court's cautionary instruction. United States v. Maestas, 554 F.2d 834, 838 n. 7 (8th Cir. 1977), cert. denied, 431 U.S. 972, 97 S. Ct. 2936, 53 L. Ed. 2d 1070 (1977).

Finally, absent any showing that any pre-indictment delay caused substantial prejudice to defendant's right to a fair trial or that the delay was an intentional device to gain a tactical advantage over the accused, we find the trial court did not err in denying Hardrich's motion to dismiss the indictment based on alleged violations of the fifth and sixth amendments. United States v. Houp, 462 F.2d 1338, 1339-40 (8th Cir. 1972), cert. denied, 409 U.S. 1011, 93 S. Ct. 456, 34 L. Ed. 2d 305 (1972).

Accordingly, we affirm the judgment of the district court.

ROSS, Circuit Judge, concurring.

I concur in all of the opinion except footnote 1.