United States v. Solomon , 24 F. App'x 148 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4121
DAVID JOSEPH SOLOMON,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-00-27)
Argued: November 2, 2001
Decided: December 10, 2001
Before NIEMEYER and LUTTIG, Circuit Judges, and
Frank J. MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Gail Warren Kahle, LAW OFFICE OF GAIL W.
KAHLE, Wheeling, West Virginia, for Appellant. Paul Thomas
Camilletti, Assistant United States Attorney, Wheeling, West Vir-
ginia, for Appellee. ON BRIEF: Patrick M. Flatley, United States
Attorney, Wheeling, West Virginia, for Appellee.
2 UNITED STATES v. SOLOMON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
David Solomon was indicted for, and convicted of, possession of
firearms by a felon in violation of 18 U.S.C. §§ 922(g)(1), (g)(9) and
924(a)(2). He now appeals, raising challenges to several of the district
court’s evidentiary rulings and to the sufficiency of the evidence to
support his conviction.
I.
Prior to trial, Solomon moved to suppress post-arrest statements
and the firearms seized from his house that triggered the instant pros-
ecution. During the pre-trial suppression hearing, the government cal-
led as a witness Solomon’s wife, who both appeared and testified.
Solomon’s trial was thereafter set for November 6, 2000, and Mrs.
Solomon was subpoenaed to testify again. She came to court on
November 6, but did not testify because only the jury selection took
place on that date. The court directed the jury to return on November
14 for the first day of trial, and the government advised Mrs. Solomon
to do the same. However, Mrs. Solomon failed to appear on Novem-
ber 14. On motion by the government, the district court allowed the
prosecution to introduce into evidence Mrs. Solomon’s testimony
from the suppression hearing. The district court also admitted into
evidence an ATF Form 4473, which recorded a firearm purchase by
Solomon.
II.
The defendant first challenges the admissibility at trial of his wife’s
testimony from the suppression hearing, contending, first, that his
wife was not "unavailable" within the meaning of Fed. R. Evid.
804(a)(5), and, second, that, even if she was "unavailable" as a trial
UNITED STATES v. SOLOMON 3
witness, defense counsel did not have a "similar motive to develop"
her testimony at the suppression hearing.
Under Fed. R. Evid. 804(a)(5), a witness is "unavailable" if "absent
from the hearing and the proponent of a statement has been unable to
procure the declarant’s attendance . . . by process or other reasonable
means." To establish "unavailability," it must be shown that reason-
able, good-faith efforts to locate the witness were made. See United
States v. Thomas, 705 F.2d 709, 711-12 (4th Cir. 1983). If a declarant
is "unavailable" at trial, his testimony "at another hearing of the same
or a different proceeding" is admissible "if the party against whom the
testimony is now offered . . . had an opportunity and similar motive
to develop the testimony by direct, cross or redirect examinations."
Fed. R. Evid. 804(b)(1) (emphasis added).
Mrs. Solomon was "absent" from the hearing on the morning of
November 14, when she was scheduled to testify, and neither the
defense nor the government knew of her whereabouts. As to the gov-
ernment’s efforts to procure her attendance on that day, the district
court found that the government "summoned [her] to appear at the
commencement of trial and . . . required [her] by the subpoena to
attend each day of trial until excused." J.A. 301. It is undisputed that
Mrs. Solomon was not "excused" by the court on November 6, and
thus had a continuing obligation pursuant to the subpoena to appear
at trial. Moreover, the government represented to the district court and
to us that, on November 6, "it advised Mrs. Solomon to return on
November 14, 2000, the day the actual trial was to commence," J.A.
301 (opinion of the district court); indeed, upon this representation,
the district court issued a warrant, pursuant to which Mrs. Solomon
was arrested later that day. And the defendant concedes that Mrs. Sol-
omon was aware that the trial was to begin on November 14. Br. of
Appellant at 11.
The government had no reason to take further precautions to ensure
Mrs. Solomon’s presence at trial. Its efforts to ensure Mrs. Solomon’s
attendance on November 14 were reasonable in light of Mrs. Solo-
mon’s initial compliance with the subpoena, through her attendance
at both the jury’s selection and the pre-trial suppression hearing; her
willing participation in the pre-trial proceedings at its request; and its
advice to her to return on November 14. See Thomas, 705 F.2d at 712
4 UNITED STATES v. SOLOMON
(concluding that the government’s attempts to locate witnesses by the
service of process were reasonable); cf. United States v. Puckett, 692
F.2d 663, 670 (10th Cir. 1982) (concluding that inability to procure
witnesses was due to the "attorney’s tardiness in failing to attempt to
subpoena [them] until near the end of the second week of trial"). The
district court did not err in concluding that the government had made
reasonable efforts to secure her attendance such as to satisfy the
threshold requirement of "unavailability."
Solomon next argues that there was not, at the suppression hearing,
a motive similar to that at trial, to develop Mrs. Solomon’s testimony,
because the only purpose of the suppression hearing was to establish
the consensual nature of the search of Solomon’s home and of the sei-
zure of firearms by authorities. By contrast, Solomon notes, at the
trial, the government introduced Mrs. Solomon’s testimony to estab-
lish the fact that he possessed seized firearms.
However, defense counsel did have a "similar motive" at the sup-
pression hearing to develop Mrs. Solomon’s testimony on the issue
of firearms possession. Even prior to the trial itself, Solomon’s coun-
sel knew that Solomon’s possession of firearms would be of central
importance at Solomon’s trial on charges of illegal possession of fire-
arms. At the suppression hearing, the government elicited Mrs. Solo-
mon’s testimony establishing the defendant’s ownership and
possession of these firearms. J.A. 14, 17 (identifying their home as
the location of the firearms; identifying locations where he kept his
firearms; and confirming that defendant possessed firearms on the
date in question). Upon the elicitation of this testimony by the prose-
cution, Solomon’s counsel had ample motive to cross-examine Mrs.
Solomon on the possession issue, if for no other reason than for pro-
tection in the event of her unavailability at trial. Absent cross-
examination at the suppression hearing, Mrs. Solomon’s testimony as
to her husband’s possession of the firearms might go unchallenged at
trial, establishing the chief element of the charged offense. See 30B
Michael Graham, Federal Practice and Procedure § 7073 ("[A] deci-
sion not to cross-examine . . . at a preliminary hearing . . . assumes
the risk that the witness will not be available at trial.").
Defendant’s reliance on United States v. Salerno, 505 U.S. 317(1992), is misplaced, because that case explicitly left open for the
UNITED STATES v. SOLOMON 5
lower court the question of whether the United States in fact had a
"similar motive" to develop through cross-examination before the
grand jury, the testimony that it sought to introduce at trial. Id. at 325.
Accordingly, the district court did not abuse its discretion by
admitting at trial, under Fed. R. Evid. 804(b)(1), Mrs. Solomon’s sup-
pression hearing testimony.1
III.
Solomon also challenges the admission, under Federal Rule of Evi-
dence 807, of ATF Form 4473, which recorded his purchase of one
of the firearms seized from his house. The ATF Form is required to
be maintained by all firearms dealers at their place of business. The
particular Form 4473 that was introduced at Solomon’s trial was pro-
vided to the prosecution by Mr. Kearney, the current record custodian
at the K-Mart in Florida where the firearm was purchased. The Form
contains information such as Solomon’s name, address, sex, age,
height, weight, race and driver’s license number. It is signed and
dated by Solomon. The Form also contains the type, model, caliber
of gauge, serial number, and manufacturer of the firearm. Finally, the
title, transaction serial number, and date of the transaction appear on
the Form. J.A. 283-84; 308.
We agree with the district court that this Form satisfies the require-
ments for admission under Rule 807.2 It is evidence of a "material
1
Alternatively, the testimony is admissible under the residual hearsay
exception, because it "ha[d] equivalent circumstantial guarantees of trust-
worthiness." Fed. R. Evid. 804(b)(5). The defendant’s own counsel ques-
tioned Mrs. Solomon, and a contemporaneous transcript was prepared of
her statement, which was made voluntarily under oath. There is also no
evidence that Mrs. Solomon had any incentive to lie; and, had she lied,
she could have been prosecuted for perjury. See United States v. Clarke,
2 F.3d 81, 84-85 (4th Cir. 1993) (listing these criteria as evidence of cir-
cumstantial guarantees of trustworthiness).
2
Federal Rule of Evidence 807 provides, in relevant part, that
A statement not specifically covered by Rule 803 or 804 but hav-
ing equivalent circumstantial guarantees of trustworthiness, is
6 UNITED STATES v. SOLOMON
fact" — purchase of a firearm, the seizure of which triggered the
instant prosecution. It is "more probative" than other evidence that
"can be procured through reasonable means" because "it was not rea-
sonable to require the government to bring in the record custodians
from different parts of the country to prove th[e fact of the purchase]."
United States v. Simmons, 773 F.2d 1455, 1459 (4th Cir. 1985)
(admitting a Firearms Trace form under Fed. R. Evid. 803(24), which
is now Rule 807). Finally, "the general purposes of [the Federal Rules
of Evidence] and the interests of justice [are] best served" by the
admission of this form, as it possesses a "high degree of reliability."
K-Mart was required by law to complete this form when it sold the
firearm to Solomon, J.A. 309 (opinion of the district court), and, as
we have previously observed, there is "simply no reason for the [sell-
ers] of these weapons to falsify the entries on the routine ATF forms,"
Simmons, 773 F.2d at 1459.
Solomon’s contention that Mr. Kearney fabricated the document
upon receipt of BATF’s requesting letter is far-fetched. The form
includes information that does not appear in the BATF letter, such as
the transaction serial number; it is signed by Mr. Solomon and the
salesman; and it spells the name of Mr. Solomon’s street differently
than does the BATF letter.
The district court did not err in admitting the ATF Form 4473 into
evidence.
IV.
Lastly, Solomon argues that, absent Mrs. Solomon’s statements
and the ATF Form, there is insufficient evidence to support his con-
not excluded by the hearsay rule, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purposes of these
rules and the interests of justice will best be served by admission
of the statement into evidence. . . .
Fed. R. Evid. 807.
UNITED STATES v. SOLOMON 7
viction for the unlawful possession of firearms. However, not only
were Mrs. Solomon’s statements and the ATF Form 4473 properly
admitted, as we have held, but other evidence, as well, established
Solomon’s possession of the firearms in question. A police officer
testified that he knew that Solomon possessed the firearms and that
in fact he removed the firearms from Solomon’s house, J.A. 69-71,
and, Solomon himself made two statements to the police officers con-
firming that in fact he had been in possession of the firearms seized.
J.A. 73, 186. Thus, sufficient evidence supported Solomon’s convic-
tion, even absent the evidence that we hold today was properly admit-
ted.
CONCLUSION
For the reasons that appear, the judgment of conviction and sen-
tence are affirmed.
AFFIRMED