United States v. Carl Wesley Harbin ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3015
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United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the
* Eastern District of Arkansas.
Carl Wesley Harbin, *
*
Appellant. *
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No. 96-3022
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United States of America, *
*
Appellee, *
*
v. *
*
Carol Elaine Harbin, *
*
Appellant. *
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Submitted: February 11, 1997
Filed: May 5, 1997
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Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE,1 District Judge.
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BOWMAN, Circuit Judge.
1
The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.
A jury found Carol Elaine Harbin and Carl Wesley Harbin, husband and
wife, guilty of conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. § 846 (1994). In addition, the
jury found Carol Harbin guilty of possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a) (1994), and use of the
United States mail in the delivery of methamphetamine in violation of 21
U.S.C. § 843(b) (1994). The Harbins appeal their convictions, and we
affirm.
The Harbins’ primary argument on appeal is that the District Court2
committed reversible error in their joint trial by admitting into evidence
the grand jury testimony of Pam Southard, Carol Harbin’s sister, under the
Federal Rule of Evidence 804(b)(5) hearsay exception. Southard read a one-
page statement before the grand jury indicating that she had been advised
by Carol Harbin that a package containing a candle and addressed to their
deceased father was due to arrive at their mother’s trailer on May 31,
1994. Southard was directed to phone Harbin when the package was
delivered. This package, containing a hollowed-out candle filled with
methamphetamine, was intercepted by postal inspectors and was the subject
of a controlled delivery on June 6, 1994. Southard retrieved the package
from her mother’s street-side mail box and was present in the home when the
officers executed a search warrant following the controlled delivery.
The Harbins each contend that the admission of this testimony
violated Federal Rule of Evidence 802, the hearsay rule, and the Sixth
Amendment’s Confrontation Clause, both of which require that the
prosecution first establish the declarant’s unavailability prior to
admission of her out-of-court statement. We review the
2
The Honorable George Howard, Jr., United States District
Judge for the Eastern District of Arkansas.
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District Court’s decision to admit evidence under Rule 804(b)(5) for an
abuse of discretion. See United States v. Woolbright, 831 F.2d 1390, 1397
(8th Cir. 1987).
Hearsay statements generally excluded from evidence by Federal Rule
of Evidence 802 may be admitted under Rule 804(b)(5) if the proponent of
the statement is able to make a threshold showing that the declarant is
unavailable.3 “A good faith attempt to locate and subpoena the witness
satisfies the proponent’s obligation to demonstrate that the witness is
unavailable.” United States v. Flenoid, 949 F.2d 970, 972 (8th Cir. 1991).
Likewise, in order to comply with the requirements of the Confrontation
Clause, “the prosecution must either produce, or demonstrate the
unavailability of, the declarant.” Ohio v. Roberts, 448 U.S. 56, 65
(1980); cf. White v. Illinois, 502 U.S. 346, 354 (1992) (clarifying that
“Roberts stands for the proposition that unavailability analysis is a
necessary part of the Confrontation Clause inquiry only when the challenged
out-of-court statements were made in the course of a prior judicial
proceeding”). “The ultimate question is whether the witness is unavailable
despite good-faith efforts undertaken prior to trial to locate and present
that witness.” Ohio v. Roberts, 448 U.S. at 74. The Harbins argue that
the prosecution failed to demonstrate that a good faith effort was made to
procure Pam Southard’s presence at trial and that the District Court
therefore erred in admitting her grand jury testimony into evidence.
Shortly before trial, the prosecution filed a motion notifying the
Harbins of its intent to introduce Pam Southard’s grand jury
3
Federal Rule of Evidence 804(a)(5) defines
“[u]navailability as a witness” to include situations in which
the declarant “is 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.”
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testimony due to an inability to locate Southard for service of a subpoena
to appear at trial. The District Court conducted a preliminary hearing on
the admissibility of Southard’s grand jury testimony wherein the prosecutor
stated, “I don’t know where she is. We’ve been trying to serve her. . . .
The state police has [sic] tried to find her.” Tr. of Proceedings vol. 1
at 11. After vague references to efforts made by local police and
investigators to locate and serve Southard, the prosecutor concluded that
“Pam Southerd [sic] knows there’s a subpoena for her, but she doesn’t want
to testify against her sister.” Id. at 12.
In support of its motion to introduce Southard’s grand jury
testimony, the prosecutor called Southard’s mother, Edith Barger, to
testify at the preliminary hearing. Barger testified that Southard lived
in a trailer next to hers in Judsonia, Arkansas, until June 1994; that
Southard had moved and was working at a motel in Kingston, Mississippi; and
that she, Barger, had relayed this information to police each time they
appeared at her home to serve the subpoena on Southard. While Barger
testified that she knew of no address for Southard, she did confirm that
she addressed mail to Southard in care of general delivery in Kingston,
Mississippi. Barger further testified that Southard “usually comes home
every two or three weeks.” Id. at 18. When asked whether Southard was
reluctant to testify against her sister, Barger stated, “She hasn’t said.
. . . I don’t believe she would. . . . That was my opinion.” Id. at 19
(emphasis added). When asked whether Southard was deliberately avoiding
service, Barger stated, “I don’t think so, because I’ve told them everytime
they’ve come out where she’s at.” Id. at 21.
After this hearing the District Court concluded, based on the
prosecutor’s remarks and Barger’s testimony, that Southard “has avoided
efforts on the part of the government to serve a subpoena.
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. . . [T]he Court is of the view that she is willfully and deliberately
avoiding that subpoena.” Id. at 24. Consequently, the District Court
allowed the prosecution to read Southard’s grand jury testimony into
evidence during the Harbins’ trial.
We are unable to conclude, based on these facts, that the government
carried its burden of proving that it made a good faith effort to locate
Southard prior to trial. The prosecution failed to establish that serious
attempts were made to secure Southard’s attendance at trial. General
statements, without detailed facts, regarding the scope of the
prosecution’s search are insufficient to establish that the requisite good-
faith effort was made to locate Southard. No evidence was presented that
the prosecution tried to serve Southard in Kingston, Mississippi, or that
reasonable efforts were made to serve Southard when she was present at
Barger’s trailer which, according to Barger, occurred “every two or three
weeks.” The prosecution presented no evidence to corroborate its
conclusion that Southard was avoiding service deliberately because she did
not want to testify against her sister. The District Court abused its
discretion in admitting Southard’s grand jury testimony on the basis of
unavailability.
Because we hold that the government failed to establish Southard’s
unavailability, we need not and do not consider the Harbins’ arguments
that the government failed to comply with the remaining requirements for
admissibility of hearsay statements under Rule 804(b)(5) or under the
Confrontation Clause.
While we do not believe that the government carried its burden of
proving that Southard was unavailable to testify at trial, the District
Court’s improper admission of her grand jury testimony requires reversal
of the Harbins’ convictions only if the error was not harmless. See Fed.
R. Crim. P. 52(a). “An error is harmless
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if the reviewing court, after viewing the entire record, determines that
no substantial rights of the defendant were affected, and that the error
did not influence or had only a very slight influence on the verdict.”
United States v. Cortez, 935 F.2d 135, 140 (8th Cir. 1991) (quoting United
States v.McCrady, 774 F.2d 868, 874 (8th Cir. 1985) (citations omitted)),
cert. denied, 502 U.S. 1062 (1992); see also United States v. Roberts, 844
F.2d 537, 547 (8th Cir.), cert. denied, 488 U.S. 867, 983 (1988). After
a review of the entire record, we conclude that no substantial rights of
the defendants were affected, and that the admission of Southard’s grand
jury testimony had little or no influence on the verdict.
The prosecution presented testimony from a number of co-conspirators
who described the Harbins’ involvement in the drug conspiracy. Police
officers and postal employees recounted the details surrounding controlled
deliveries to the Harbins’ residence of packages from California containing
drugs. Officers also described the drugs and drug paraphernalia seized
from the Harbins’ residence and outbuildings during execution of a search
warrant after a controlled delivery. Southard’s grand jury testimony
merely provided cumulative evidence that Carol Harbin directed her
California drug supplier to address a package containing methamphetamine,
intended for Carol Harbin, to Harbin’s deceased father at her mother’s
trailer. This information was corroborated by a number of the co-
conspirators who heard Carol Harbin discuss the impending arrival of the
package and who actually testified at trial. In these circumstances, the
admission of Southard’s grand jury testimony was harmless error.
The convictions of the Harbins are affirmed.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
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