United States v. Dwayne Reed
227 F.3d 763, 2000 U.S. App. LEXIS 22788, 55 Fed. R. Serv. 713 (2000)
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Rule of Law:
A witness's prior trial testimony may be admitted under the former testimony hearsay exception (FRE 804(b)(1)) if the witness is genuinely unavailable despite good-faith efforts and the opposing party had a similar motive and opportunity to cross-examine. A criminal defendant's prior trial testimony can be admitted as a party-opponent admission (FRE 801(d)(2)(A)) without requiring redaction of non-inculpatory statements.
Facts:
- Dwayne Reed was charged with bank robbery.
- Frank Simmons, Reed's co-defendant, cooperated with the government and testified against Reed at Reed's first trial.
- Simmons had entered into a plea agreement with the government well before Reed's first trial, which promised a substantial reduction in his sentence in exchange for his cooperation and truthful testimony.
- After Reed's first trial but before his second, Simmons pleaded guilty and was sentenced under his plea agreement.
- Simmons subsequently refused to testify at Reed's second trial, despite government offers of additional sentence credit and court orders threatening contempt.
- Reed also decided not to testify at his second trial.
Procedural Posture:
- Dwayne Reed was charged with bank robbery under 18 U.S.C. § 2113(a) in a federal district court.
- Reed's first trial ended with a hung jury, and the district judge declared a mistrial.
- Reed was retried in the same district court.
- At the second trial, the district judge admitted co-defendant Frank Simmons's testimony from the first trial.
- At the second trial, the district judge also admitted Dwayne Reed's entire testimony from the first trial.
- The jury returned a guilty verdict against Reed.
- The district judge sentenced Reed to 240 months in prison.
- Reed appealed the district court's judgment to the United States Court of Appeals for the Seventh Circuit, arguing errors in evidentiary rulings and jury instructions.
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Issue:
Did the district court err by: (1) admitting co-defendant Frank Simmons's prior trial testimony under Federal Rule of Evidence 804(b)(1) and consistent with the Confrontation Clause, (2) admitting defendant Dwayne Reed's entire prior trial testimony as a party-opponent admission under Federal Rule of Evidence 801(d)(2)(A), and (3) providing an inadequate jury instruction concerning Simmons's cooperation with the government?
Opinions:
Majority - Williams, Circuit Judge
No, the district court did not err in its evidentiary rulings or jury instructions. The admission of Simmons's prior testimony was proper under Federal Rule of Evidence 804(b)(1) because Simmons was genuinely unavailable, and Reed had a similar motive and opportunity to develop the testimony during the first trial. The government made a good faith effort to secure Simmons's testimony by locating him, bringing him to court, and offering sentence credit, and the court issued an order to testify, which Simmons defied. The court was not required to prevent Simmons's sentencing or threaten to set aside his plea agreement to compel his testimony, as Simmons clearly indicated his refusal even under threat of contempt. Reed had a similar motive to cross-examine Simmons during both trials, as the issues and potential penalties remained the same, and Reed's strategy was consistently to impeach Simmons's credibility. Furthermore, the admission did not violate the Confrontation Clause because Simmons was unavailable and his prior testimony, falling under a firmly rooted hearsay exception, bore adequate indicia of reliability. The admission of Reed's entire testimony from the first trial was proper under Federal Rule of Evidence 801(d)(2)(A) as an admission by a party opponent. This rule merely requires that the statement be offered against a party and be the party's own statement; it does not require the statements to be inculpatory, incriminating, or against interest, nor does it require redaction of non-inculpatory portions. Reed's arguments for redaction or against admission based on the non-inculpatory nature of statements were unpersuasive and not preserved for review beyond plain error. Lastly, the jury instruction regarding Simmons's cooperation was adequate and did not constitute plain error. The instruction correctly informed the jury that Simmons received benefits from the government and stated that his testimony should be considered with 'great caution and great care' due to his involvement in the offense and benefits received. The specific wording was sufficient to highlight potential bias, and providing the exact extent of Simmons's sentence reduction would not have significantly added to the jury's ability to assess his motives at the time of his testimony. Reed had ample opportunity to challenge Simmons's credibility during cross-examination.
Analysis:
This case reinforces the standards for admitting former testimony under FRE 804(b)(1) and a party's own statements under FRE 801(d)(2)(A). It clarifies that 'unavailability' for Rule 804 purposes does not require the government to exhaust all conceivable, however remote, measures to compel testimony, but rather a 'reasonable, good faith effort.' Crucially, it reiterates that party-opponent admissions under FRE 801(d)(2)(A) are broadly admissible, not requiring that the statements be against interest or that non-inculpatory portions be redacted. The ruling emphasizes judicial deference to jury instruction wording absent plain error, underscoring the importance of timely objections at trial.
