*2 HAYNSWORTH, Chief Judge, Before BUTZNER, and WINTER and Circuit Judges.
PER CURIAM: Mathis David and Samuel Moore both their appeal convictions for armed bank robbery. They assert grounds numerous reversal, but we find none meritorious. We affirm.
I. principal argument
Defendants’
district court
that the
committed reversible
permitting
error in
of Karen
Jones,
at a
given
previous trial in which a
granted,
mistrial
jury.
to be read to the
Karen Jones was not
testify
available to
located;
because she could not be
inadvertently she had been released from a
penal
District
Columbia
pur
institution
a court
requiring
order
the release
suant
prisoner bearing
of another
the same name.
Jones’
was admissible un-
804 of
der Rule
the Federal Rules of Evi-
at the trial
requirement
if her attendance
could court’s
dence
that peremptory chal
process
procured by
or other reason-
lenges
not be
be exercised from
jurors
a list of
804(a)(5).
Rule
The record
able means.
rather than from the box is
sanctioned
reasonable efforts were made to
shows that
States,
Pointer
United
U.S.
her,
avail. Motes v.
find
but to no
(1894).
III. trial, in second which highly her damaging Defendants’ remaining contentions prior testimony1 was against introduced M lacking are also defendant, merit. The district caused negli- sole Following They “A excerpts There discussing was. are were Karen Jones’ rob- bing a bank. jury read to at Mathis’ second trial: right, they All what occurred “Q when re- Now, you during did have occasion Jan- “Q your apartment? turned to uary year of this to see Mr. Mathis or Mr. They my “A went into what I would call your apartment? Moore at living they counting money, room and started Yes, “A I did. but I the room. left . . . We went into the When was that? “Q everyone stayed house and for a while and approximately January “A It was 6th. then, Tillery Mathis left and the last two They my peo- house came with some other Stroy. left were Moore ánd James ple, Stroy, Savage, Tillery Now, you James Sam they Jerome initially said when “Q came room, living you back and went into and Samuel Moore and David Mathis. were And, say there for a while? you they your came to house “Q Yes, “A I was there for a minute or two. I about the 6th? long. wasn’t there that “A Yes. you any Did hear discussion at “Q that time And, they stay? did “Q by any of those individuals? They stayed January. “A until the 9th of they just they “A I think talked the success robbing stay a bank had at but didn’t there you any among any Did hear discussion “Q long. prior of those individuals the time left you money Did see at that “Q day? the house on that time? lack government erroneously re- of recklessness or gence purposefulness leasing custody.2 her from federal In these this case is without foundation. Motes does circumstances, standard, case squarely and, this comes not recite such' a indeed, repeatedly holding of the Court in Motes v. characterizes the within actions of the government negligent. S.Ct. U.S. at 474, 20 (1900), The grounded its exclu- L.Ed. characterization in opinion our of the acts of the in the Confrontation sion officer in as a disregard Motes “reckless of an obliga- of the Sixth Amendment. Clause produce” tion to the witness is simply con- government sought to intro- In Motes trary to the characterization Supreme a criminal trial statement made duce in conduct, put Court and I doubt our prior, unavailable witness at a by a then change warrant it. hearing. unavailability preliminary apparently The court treats the admissi- negli- at trial was due to the the witness *4 bility of Karen Jones’ testimony merely as a removing in him gence of the States admitting matter of hearsay evidence under custody prior permit- to the trial and prior the testimony exception to the hear- ting stay him to in a hotel room in the rule, say Fed.R.Evid. 804(b)(1),3 and con- government witness, custody of another cludes that the unavailability test of Rule jail. Before he than was to testi- rather 804(a)4 has been course, met. Of while disappeared, fy, apparently the witness hav- overlap there is some in the interests sought although escaped, he had been the ing protected by to be the hearsay rule and the just prior to the trial. courthouse Clause, Confrontation their ranges of exclu- Supreme Court held that the intro- co-extensive; sion are not the Confronta- duction of the violated the tion Clause can be by violated the admission rights defendants’ Sixth Amendment testimony of that comes purview within the against the witnesses confront them. recognized of hearsay exceptions. Califor- attempt panel’s distinguish Green, I think the nia v. S.Ct. government’s the by emphasizing Motes (1970). Thus, L.Ed.2d 489 while a literal Yes, money. “(b) Hearsay “A I saw some Exceptions, following are —The any money you receive of Did the at by “Q hearsay not the excluded rule if the declar- robbery? the bank time from ant is unavailable as a witness: Yes, got really I did. about —I am “A testimony. Testimony given Former as — was, maybe how much it a hundred or two sure hearing a at another witness of the same or a hundred from each had left proceeding, deposition different or in a taken in Moore, Mathis, house and that was James compliance with law in the course of the same Stroy Tillery. proceeding, party against or another if the Now, what occurred after left the “Q offered, or, testimony whom the is now in a day? house that proceeding, predecessor civil action or in in- up “A I cleaned behind them and there was terest, opportunity had an and similar motive some I.B.M. cards that I found that had the direct, develop testimony by cross, or name— redirect examination.” 804(a) pertinent part: 4. Rule reads in you having do recall been What written “Q cards? on those “(a) unavailability. Definition of —‘Unavaila- Savings date, “A Provident Bank and the bility as a witness’ includes situations in which January, 1975.” the 9th of the declarant— hearing propo- is absent from the and the apparently by 2. There were two individuals pro- nent of his statement has been unable to custody name of Karen Jones confined by process cure his attendance ... or the United States in the District of Columbia wrong Jones, other reasonable means. House Detention. The Karen against A is not declarant unavailable as a the one had testified Mathis at witness if who his trial, custody. procure- . first was released from She was . . absence is due to the year robbery wrongdoing proponent sixteen sentence for bank under a ment or of his Maryland purpose National Bank. preventing statement for the attending testifying.” witness from or 804(b)(1) 3. Rule reads as follows: may require pro- 804(a) affidavit and reading deposition. Green, of Rule See procured to have testimony prior supra n.10, at 177-78 & ponent (Har- S.Ct. 1930 in the wrongfully lan, J., involved absence concurring). or been salutary Such a meas- unavailable declarant the otherwise discarded, ure should not lightly be so least his testifying be- purpose preventing all when the unavailability key of a 804(b)(1) of Rule exception hearsay fore prosecution witness is due govern- to the the Confrontation under apply,5 will not ment’s own negligence, and is not Motes, mere Clause, negli- applied in as respect the fault of the defendant. prosecutor-propo- part of the gence on the circumstances, these it strikes me as funda- case, sufficient, criminal to bar in a nent is mentally deprived unfair to have Mathis of indeed, Green, at admissibility. opportunity jury to have the that con- rule we should at states victed him judge observe and the credibility apply here: subtle, of Karen Jones in those intangible ways had died or for which the reading “If . . . of a bare tran- witness] [the unavailable, the Confronta- script otherwise can never substitute. been would not have violated tion Clause given pre- at the
admitting his
right
hearing
of cross-exami-
liminary
—the
provides substantial
nation then afforded
purposes
with the
compliance
behind the
requirement,
long
as the
confrontation
*5
give live
inability
declarant’s
of the
way
in no
the fault
State. Com-
is
719,
Page
Barber v.
pare
[390
Colvin, Jr.,
Niles CROWE and Daniel
1318,
(1968)],
admittedly “in no the fault of Department William D. not the” al., evidence Corrections, so the should be Appellees. et excluded. that this view submit No. 75-1921. one, requirement confrontation is a sound vitality. contemporary long with As as our Appeals, United States Court justice is to system of criminal adhere in Circuit. Fourth paradigm measure to adversarial Argued Oct. conceived, a which it was defendant must for keeping be held accountable track of Decided Feb. government’s witnesses. The inclusion requirement aof in the Constitution that
one be confronted with accusers face to finds its antecedents efforts to cure face prevalent abuses the ancient serious procedure England, such criminal as trial element, obviously Redding may Salzberg, And Professors 5. This amount in their deliberateness, necessarily 804(a)(5) Editorial Comment on Rule is not limitation in the unavailability exception expressed Federal Rules of Evidence Manual state: “The typical provision 804(a). Advisory common law if the una- the last sentence of Rule vailability produced calling 804(a)(5) Committee’s Note to Rule states that declarant, statements constituting various the conditions otherwise una- “[i]f exceptions apply, will not is continued.” procurement vailability result or statement, wrongdoing proponent Thus, may the statement Karen Jones well requirement improperly is not satisfied.” No mention have been admitted even as a mat- purposefulness. is made Committee ter of evidence law.