## Facts

- A large drug-smuggling conspiracy imported marijuana and cocaine from South America through the Bahamas to Indiana; numerous participants were indicted.
- Charles H. Kehm III was linked to the conspiracy through evidence that he managed a Bahamian resort used to facilitate drug transshipment and captained a boat carrying drugs.
- Kehm later spoke with undercover agents about providing smuggling services and using a resort as cover; the conversation was recorded on videotape and included references to other crimes.
- Steven M. Greenberg, an attorney, was tied to the conspiracy through evidence that he organized a corporation used to rent an airplane for drug transport and warned conspirators when travel to the Bahamas was risky.
- A Bahamian lawyer, Nigel Bowe, refused to travel to the United States to testify and provided an affidavit to that effect; Greenberg obtained leave to depose him in the Bahamas.
- Bowe’s deposition proved damaging to Greenberg; Greenberg then argued the deposition was inadmissible hearsay because Bowe was actually “available,” supported by a second affidavit from Bowe.
- The district court found Bowe’s second affidavit not credible, determined Bowe was unavailable for trial in the United States, and admitted the deposition.
- Kehm and Greenberg were convicted in separate trials of conspiracy to import and conspiracy to distribute controlled substances under federal drug statutes.

## Issues

1. Whether the district court abused its discretion under Federal Rule of Evidence 403 by admitting Kehm’s videotaped undercover conversation after initially excluding it due to references to other crimes.
2. Whether the evidence was sufficient to sustain Kehm’s conspiracy convictions, given defense testimony denying that witnesses saw him smuggle drugs.
3. Whether Bowe was “unavailable” under Federal Rule of Evidence 804(a) and, if so, whether his deposition was admissible as “former testimony” under Rule 804(b)(1).
4. Whether admitting Bowe’s deposition violated Greenberg’s confrontation rights.
5. Whether any additional alleged trial errors warranted reversal under plain-error review.

## Decision

- The Seventh Circuit affirmed both convictions.
- The court held the district judge acted within discretion in reconsidering the Rule 403 balance midtrial and admitting the videotape after the defense presentation increased its probative value.
- The court held the evidence was sufficient to support Kehm’s convictions and refused to reweigh witness credibility.
- The court upheld admission of Bowe’s deposition because Bowe was unavailable and the deposition satisfied Rule 804(b)(1)’s former-testimony requirements.
- The court rejected confrontation objections because the deposition occurred under oath with counsel present and an opportunity for cross-examination.
- The court found no other alleged errors justified reversal; none met the strict standard for plain error.

## Legal Principles

- Rule 403 balancing is context-dependent; a trial court may revisit and change an evidentiary ruling as the trial record develops, and such changes are reviewed for abuse of discretion.
- Appellate review of sufficiency of the evidence does not permit reweighing credibility; the jury may accept the government’s proof and reject defense witnesses if the record supports the verdict.
- A foreign witness who refuses to travel to the United States and cannot realistically be compelled to appear may be deemed “unavailable” under Fed. R. Evid. 804(a).
- Deposition testimony taken under court authorization, under oath, with an opportunity and similar motive to examine, is admissible as “former testimony” under Fed. R. Evid. 804(b)(1) when the witness is unavailable.
- A party who sought a deposition by relying on a witness’s unavailability cannot later exclude the deposition by claiming the witness was available, where the trial court finds unavailability and rejects contrary, self-serving evidence.
- Using such deposition testimony does not violate the Confrontation Clause when the defendant had a meaningful opportunity to cross-examine.
- Plain-error relief is reserved for exceptional cases where reversal is necessary to prevent a miscarriage of justice or to protect the fairness and integrity of judicial proceedings.

## Conclusion

The Seventh Circuit affirmed the conspiracy convictions, holding that the trial court permissibly reconsidered Rule 403 to admit a highly probative videotape, and that a foreign witness’s deposition was properly admitted as former testimony because the witness was unavailable and the defendant had an adequate opportunity and similar motive to examine the witness at the deposition.


United States v. Kehm, 799 F.2d 354 (7th Cir. 1986)