## Facts

- Jack Randall MacCloskey was investigated for drug trafficking, including a methaqualone sale and a later cocaine deal that led to his arrest in Florida in August 1980.
- The government’s murder-conspiracy evidence relied heavily on testimony from informant Melvin “Pete” Honeycutt about post-arrest discussions involving MacCloskey and his girlfriend, Patsey Elaine Edwards.
- Honeycutt claimed MacCloskey and Edwards discussed killing DEA Agent Skaggs and separately discussed killing informant Steve Lansley, including a plan to use dynamite.
- Edwards was indicted as a co-conspirator, but the government indicated the indictment would be dismissed before MacCloskey’s trial.
- Before trial, the U.S. Attorney contacted Edwards’ lawyer and warned that Edwards could be reindicted if she testified and incriminated herself.
- The district court conducted an out-of-jury voir dire in which Edwards gave sworn testimony contradicting the government’s main evidence and exculpating herself and MacCloskey as to the alleged murder conspiracies.
- At trial, Edwards invoked the Fifth Amendment to nearly all substantive questions after the court sustained her privilege claim, citing fear of reindictment.
- MacCloskey sought admission of Edwards’ voir dire testimony as former testimony of an unavailable witness under Federal Rule of Evidence 804, but the district court refused, reasoning her Fifth Amendment invocation did not make her “unavailable.”

## Issues

1. Whether the evidence was sufficient to prove a conspiracy to murder DEA Agent Skaggs under 18 U.S.C. §§ 1114 and 1117 (Count I).
2. Whether Edwards became “unavailable” under Federal Rule of Evidence 804(a)(1) when she invoked and the court sustained the Fifth Amendment privilege, requiring admission of her prior sworn voir dire testimony under Rule 804(b)(1).
3. Whether the government improperly interfered with a defense witness by warning of possible reindictment, thereby impairing the defense’s ability to present material, exculpatory testimony.

## Decision

- The Fourth Circuit reversed the Count I conviction, holding the evidence was insufficient as a matter of law to establish an agreement to murder Agent Skaggs.
- The court held the evidence was legally sufficient to support Count II (conspiracy to kill Lansley), but reversed the conviction and remanded for a new trial.
- The court ruled the district court erred by refusing to treat Edwards as “unavailable” under Rule 804 after her sustained Fifth Amendment invocation and by excluding her prior sworn testimony.
- The court found the prosecutor’s warning about possible reindictment improperly pressured Edwards not to testify, compounding the prejudice from excluding her prior exculpatory testimony.

## Legal Principles

- A conspiracy conviction requires proof of an agreement; hostile statements or vague talk, without an agreement that a rational jury could find beyond a reasonable doubt, is insufficient.
- A witness is “unavailable” under Federal Rule of Evidence 804(a)(1) when the witness invokes the Fifth Amendment privilege against self-incrimination and the court sustains the claim.
- If a witness is unavailable under Rule 804(a)(1), prior sworn testimony given under oath and subject to cross-examination may be admissible as “former testimony” under Rule 804(b)(1).
- Prosecutorial actions that intimidate or improperly pressure a defense witness not to testify can violate the defendant’s right to present a defense; where the witness’s testimony is material and exculpatory, such interference may require reversal or a new trial.
- Evidentiary error is not harmless when the excluded testimony goes to the central factual dispute and the combined effect of exclusion and government interference deprives the jury of significant defense evidence.

## Conclusion

The Fourth Circuit reversed MacCloskey’s conviction for conspiring to murder a federal agent due to insufficient evidence of an agreement and ordered a new trial on the separate conspiracy-to-kill-a-witness count because the trial court wrongly excluded a key witness’s former testimony after a sustained Fifth Amendment invocation and the government improperly discouraged that witness from testifying.


United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982)