*2 SUHRHEINRICH, Before NELSON HARVEY, Judges, and Senior Circuit Judge.* District SUHRHEINRICH, Judge. Circuit appeal At issue in this is whether the erroneously admitted into evi- district pretrial testimony co-conspir- dence the Defendant submits that Fed.R.Evid. ator. 804(b)(1) Clause of and the Confrontation Amendment were violated the Sixth at trial of statements made admission we find a Because 804(b)(1), reverse. of Rule breach February 1989 defendant Collin Jr., lin, Jr., Bailey, and Preston Tillman transport from Hous- conspired to cocaine Nashville, ton, Tennessee. This Texas to ended when both were venture business intent to dis- charged possession with aiding abetting, in cocaine and tribute 841(a)(1) and 18 of 21 U.S.C. violation § Michigan, sitting by designation. Harvey, United *The Honorable James Senior States District for the Eastern District 125 (b) possess Hearsay exceptions. following
U.S.C.
are not excluded
cocaine in violation of
rule if
intent to distribute
the declarant is unavailable as a
pled
witness:
846. Both defendants
U.S.C. §
guilty.
(1)
testimony. Testimony given
Former
as a witness at another
*3
August
In
1989
filed a
same or a
proceeding
different
...
if the
evidence,
suppress
join.
asked to
party against
testimony
whom
is now
Taplin’s
granted, Bailey
motion was
After
opportunity
offered ... had an
and sim-
support
took the stand
of his own mo-
ilar
develop
testimony by
motive to
tion.
discussed the
direct, cross, or redirect examination.
cocaine,
transport
Taplin’s recorded tele-
predicate
of unavailability is satis-
Jackson,
phone
inducing
calls
him to visit
appeal.
fied here and is not contested on
Tennessee, and the circumstances of his
requirements
But the unmet
opportunity
of
Upon completion
Bailey’s
own arrest.
and similar
Bailey’s
motive
state-
testimony Taplin
filed a second
beyond
804(b)(1).
ments
the reach of
motion,
granted. Bailey’s
which also was
standing.
motion was denied for want of
opportunity
develop
testimo
ny
proceeding
offered at another
is not
testify during Tap-
elected not to
by presence
established
alone. The mere
separate trial,
invoking
lin’s
his Fifth
Taplin’s attorney
fact that
inwas
the court
privilege against
Amendment
self-inerimi-
during Bailey’s
room
suppression testimo
government
nation. The
moved to admit
ny
and was asked
presiding judge
if
portions
testimony Bailey
furnished
any questions,
he had
proof
is not
suppression hearing.
at the
The district
prepared
was
for a full and thor
court admitted
hearsay testimony pur-
this
ough cross-examination of the witness.
804(b)(1).
suant to
The kind
proceeding
at which tes
Following
two-day jury
timony is
quality
offered conditions the
guilty
charges.
was found
of both
He was
opportunity
develop
testimony.
It
sentenced to serve
prison
60 months in
testimony presented
is well-settled that
count,
concurrently.
each
to run
provides
a trial
a defendant with an ade
quate
fully
occasion to
examine the wit
II
States,
ness. Mattox v. United
156 U.S.
Bailey’s pretrial
submits that
tes-
237,
337,
(1895).
15 S.Ct.
39 L.Ed.
By
409
timony is
hearsay
inadmissable
and violates
contrast,
testimony presented
grand
at a
his Sixth Amendment
of confronta-
jury proceeding
subject
is not
to cross-
agree
tion. Because
evi-
examination and therefore does
qualify
not
conclusion,
dentiary
there is no need to
Young
States,
under the rule.
v. United
reach the merits of his
argu-
constitutional
(D.C.Cir.1969).
not
Ill
a sec-
Taplin later made
fact that
does the
up, the district court’s
To sum
decision
pres-
compulsory
motion establish
ond
Bailey’s suppression hearing testimo-
admit
therefore
Bailey’s motion. We
during
ence
ny
trial was reversible error.
requisite
Taplin did not have the
hold that
presence at
suppres-
fortuitous
Bailey’s testimony
develop
opportunity
opportunity
sion
as con-
templated by
testimony excep-
the former
agrees
the standard set
The dissent
rule. Nor can it
said
tion to
*4
pres-
argues
Taplin’s
that
here but
forth
Taplin’s
proceed-
motives at the two
that
per-
fortuity. Experience
no
ence was
ings were similar. We therefore RE-
copiously
nar-
me that the facts
suades
VERSE.
amount to the
by the dissent do not
rated
required by the federal
opportunity
kind of
NELSON,
Judge,
A.
DAVID
Circuit
theory imposes an un-
dissent’s
rule. The
dissenting.
litigants. Liti-
justifiable burden on future
that
I do not believe
defendant
testimony
develop
gants
be forced
showing”
made a “clear
that the dis-
proceeding for an un-
in a circumscribed
trict court abused its discretion
admit-
reason,
testimony
having
risk
known
or
pretrial testimony
ting
under
against them later under unforeseen
used
804(b)(1). Accordingly, and
Rule
because
do
The rules of evidence
circumstances.
no violation of the
can discern
Sixth
litigat-
parties in so untenable a
not
Clause, I must
Amendment’s Confrontation
ing position.
the reversal of the conviction.
dissent from
a similar motive.
Taplin also lacked
Todd,
presided
who
over defen-
the similar
traditional formulation of
Taplin’s two-day
was the same
proceed
requirement is that the two
motive
five-day sup-
judge
presided over the
who
identity of
ings must reflect a “substantial
trial.
pression hearing
preceded
that
al.,
et Moore’s
8 James W. Moore
issues.”
admissibility
on the
at trial
(2d
1989).
Practice
ed.
Federal
804.04[3]
sup-
Bailey at the
testimony given Mr.
oppos
Identity of issues ensures that
thus had
hearing, Judge Todd
pression
meaningful opportunity to
ing party had a
knowledge
of the extent
first-hand
of
develop testimony when it was first
Taplin’s partic-
defendant
and nature of
Wingate,
520 F.2d
fered. United States
rea-
hearing, but also of the
ipation in the
(2d Cir.1975),
denied, 423
length of
attendance and the
son for his
ed that same This case, be right present and he to be at has optimistic; began hearings the March 27th session all that take that affect time, adjourned p.m. on but it was at 5:15 his interest. And since he’s named as a station, suppose co-conspirator patrol alleg- those and his co-conspirator edly highway made out there on the going, to me it seems got a time, point sufficiently some in were not if I were to be here. And would want remote in time from the initial taint so as here.” I’d want to be you, purge him of that taint and that those might have explained that he Mr. Wharton are also barred. statements Wednes- Judge Turner on appear before have, existence, We now still 4th, “I’ll Judge Todd said tell but day the taperecorded conversations between Mr. me on you’re going to be with Turner that * * * Bailey. and Mr. There has been you need to let Wednesday Now know ruling no on that. don’t wheth- also, I’ll serve as [Judge know but Turner] they’re suppressed er to be or not as to Judge also verify I’ll it.” Todd your alibi. Taplin, speaking is what I’m of now. explain “that suggested that Mr. Wharton key question That’s a the con- up in is a cantan- judge old Jackson this spiracy tapes.” claim ties into those coming guy got you and has kerous old (Emphasis supplied.) nothing you Wednesday and there is back up you’re that if give can do about it and Todd declined Wharton here, jail.” By going put you juncture. he’s this At Friday adjourned, no time the session was the time Mr. took the there- fore, indisputable possibly have doubted that it would seem that attor- one could expected present ney por- when Wharton there was still a to be believed suppression on tion of his motion that re- hearing resumed decided. mained Wednesday. steps to make sure government took completion After the testimo- bond, Taplin, who was free on request
that Mr. ny, Mr. Wharton renewed his for a Wednesday also. The tapes: would be on the *6 transcript prosecutor that the discloses “My everything covered that (Mr. Godwin) attorney ad- and arrest, Your comes out of that following the statements dressed already Honor has ruled about the state- April during morning session on the highway in purportedly ments made the 4th: is patrol station and all. Our contention that thing, everything Your that that flowed from
“MR. Just one GODWIN: record, of Honor, I to initial unlawful detention and seizure just for the and want there, person out that this whole presence. The do it in Mr. Wharton’s compact in time chain of events was so subpoenaed Mr. last United States the nothing purged has been that today. Friday to be here taint, anything which would include under their sub- MR. WHARTON: He is purportedly said on Taplin may have subpoena. poena, government’s the Of that the tapes. And we move those course, any- here he was directed to be in manner as treated the same be (Emphasis supplied.) way.” statements, certainly alleged the was Lindsey was the first witness Officer alleged the cocaine.” Wednesday, take the stand to rule on the Judge Todd declined him at some Wharton cross-examined evidence, not- heard all of the until he had Taplin. length on behalf of defendant open. You’re is still ing that “[t]he Bailey. Be- next was defendant witness it, in Mr. Wharton.” still however, attor- Bailey took the fore testify after Mr. witness explicitly pointed out to the ney Wharton was Bailey was defendant yet there had not been —who court that lawyer, Mr. Wharton. called his own request on Wharton’s presented by arguments then Closing were tape-recorded telephone conversations: the prosecutor, the admissibility Honor ruled on “Your In that order. Friedman. alleged Your Honor of the contraband. Judge closing arguments, Following the specifically that since the state- ruled ruling Mr. Whar- completed Todd allegedly highway ments made ously damaging Taplin, and if He ruled that a suppression motion. ton’s documentary Bailey evidence had not piece of could show that been a certain all, in the car at the time of arrest it would participant found tape- suppressed, but that obviously be strengthen chances recordings subse- succeeding still-pending motion for on his telephone conversations with defen- quent Unfortunately, tapes. of the suppressed. Bailey would not be knows, every lawyer as trial even strongest damag- desire to cross-examine a background, I can see no Against this ing witness must sometimes be resisted Wharton— reason to assume knowledge of the certain days’ given had five advance who been cross-examination would do more harm Wednesday hearing, and who notice good. than client had been “direct- understood that his appear at that time—would not ed” sum, believe that defendant prepared to conduct a full and thor- been meaningful opportunity had both a ough of defendant Bail- cross-examination cross-examine Mr. and a motive to thought had that such a cross-exami- ey do so similar to the motive that would have might helpful. Defendant nation willing existed if Mr. had been obviously subject to cross-examination testify trial. see no abuse of interposed by Mr. latter had Wharton —the Judge applica- as far Todd’s discretion questions posed objections to several of tion of the rules of evidence is concerned. direct, Bailey during Todd therefore, panel majority, Unlike expressly asked Mr. Wharton wished would reach the merits of defendant to cross-examine—and because argument lin’s that the introduction of the Taplin’s suppression motion on defendant pretrial testimony violated his Sixth completed until the end of the was not Amendment to be confronted with the hearing, it seems to me that defendant against witnesses him. necessarily Taplin was involved the hear- It seems that the constitutional to me ing “qua presence defendant.” His was no argument conclusively is answered fortuity, lawyer’s partic- and his extensive Supreme Court’s decision in Ohio Rob ipation day on the final erts, 56, 100 448 U.S. S.Ct. 65 L.Ed.2d bespeaks opportu- far more than a “naked Roberts teaches when nity” participate. *7 declarant is not at And what of Wharton’s motive requires the Confrontation Clause to cross-examine of defen- behalf the evidence fall be unavailable and that Taplin? Judge Todd—who allow- hearsay exception.” “firmly within a rooted ing attorneys latitude in considerable It is well Id. 2534.2 probably had a better cross-examination— Fed.R.Evid., 804(b)(1), settled that Rule situation, feeling reality for the exception. constitutes such an See Wein 4 any likely again, than of us is to have. As ¶ 800[04], stein’s Evid. at 800-31. me, however, something I am at why loss to understand strong
would not have had a motive to put testimony in
discredit Mr. or light possibly could.1 The different
tape recordings telephone conversa-
tions between were obvi- Bailey's credibility Wingate, in United F.2d was crucial issue of States v. 520 316 suppressed, denied, (2d Cir.1975), whether the should Taplin’s guilt were crucial the issue of (1976): 47 L.Ed.2d "the issues in S.Ct. innocence, Bailey’s credibility or was cru- proceedings sufficiently the two similar to cial to the latter issue as well. context, In this factual meaningful opposing party assure that the had a it seems to me that Todd’s opportunity to cross-examine when the testimo clearly passes muster under the test formulated ny was first offered.” Appeals the Court of for the Second Circuit