In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-3618, 99-3798

United States of America,

Plaintiff-Appellee,

v.

Dwayne Reed,

Defendant-Appellant.



Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 92 CR 18--J.P. Stadtmueller, Chief Judge &
No. 98 CR 200--Rudolph T. Randa, Judge.


Argued May 12, 2000--Decided September 11, 2000



  Before Ripple, Manion, and Williams Circuit Judges.

  Williams, Circuit Judge. Defendant Dwayne Reed
was charged with bank robbery under 18 U.S.C.
sec. 2113(a). During his first trial, Reed
testified, as did his co-defendant, Frank Simmons
("Simmons"), who was cooperating with the
government. That trial ended with a hung jury,
and the district judge declared a mistrial. Six
months later, Reed was retried and the jury
returned a guilty verdict. At the second trial,
having already been sentenced under his plea
agreement, Simmons, a principal witness in the
first trial, refused to testify. Reed also
decided not to testify a second time. The
district judge then admitted Simmons’s testimony
from the first trial under an exception to the
hearsay rules, Federal Rule of Evidence
804(b)(1), which allows a party to present former
testimony from an unavailable declarant. The
district judge also admitted Reed’s entire
testimony from the first trial as an admission by
a party opponent under Federal Rule of Evidence
801(d)(2)(A). After the jury’s guilty verdict,
the district judge sentenced Reed to 240 months
in prison.

  Reed now appeals, arguing that the district
court erred when it admitted Simmons’s prior
testimony under Rule 804(b)(1) and in doing so
violated the Confrontation Clause of the
Constitution’s Sixth Amendment, that it wrongly
admitted Reed’s entire testimony under Rule
801(d)(2)(A), and that the district judge should
have given a more detailed jury instruction
concerning the benefits Simmons received in
exchange for his cooperation with the government.
Because we find that the district judge ruled
appropriately, we affirm.

I
A.   Simmons’s Testimony

  Not long after cooperating with the government
and testifying at Reed’s first trial, Simmons
pleaded guilty and was sentenced. Once in jail,
Simmons refused to continue cooperating with the
government and declined to testify at Reed’s
second trial. The district judge admitted
Simmons’s testimony from Reed’s first trial under
the hearsay exception provided at Federal Rule of
Evidence 804(b)(1)./1 Simmons’s prior testimony
was read by a government agent and Reed maintains
that this lent Simmons’s testimony more
credibility than it was due. Now Reed argues that
even though the government made no attempt to
compel Simmons’s presence, the trial judge found
Simmons unavailable and admitted his testimony
from Reed’s first trial. We review the district
judge’s ruling on the admission of prior
testimony for an abuse of discretion. United
States v. Curry, 79 F.3d 1489, 1494 (7th Cir.
1996)./2

  Under Rule 804(b)(1), once a declarant has been
deemed unavailable, his former testimony may be
admitted into evidence, as long as the party
against whom the testimony is admitted had an
opportunity and a similar motive to develop the
testimony. According to Reed, Simmons was not
really "unavailable" because the government
procured Simmons’s unavailability and that
neither the government nor the court made any
attempt to actually compel Simmons’s testimony at
the second trial. Specifically, Reed theorizes
that the government purposely worked to ensure
that Simmons would be sentenced before Reed’s
second trial so that it would lose any leverage
it had to compel Simmons’s continued cooperation.
A review of the facts and the law suggests that
the district judge’s decision to admit Simmons’s
prior testimony was proper.

  First, Simmons was unavailable. The definition
of "unavailability" is provided in Federal Rule
of Evidence 804(a)(1), which states that a
declarant is unavailable if the declarant
"persists in refusing to testify concerning the
subject matter of the declarant’s statement
despite an order of the court to do so." However,
Reed suggests that the government somehow
procured Simmons’s unavailability. "A declarant
is not unavailable as a witness if exemption,
refusal, claim of lack of memory, inability, or
absence is due to the procurement or wrongdoing
of the proponent of a statement for the purpose
of preventing the witness from attending or
testifying." Fed. R. Evid. 804.

  The government bears the responsibility of
proving that Simmons was unavailable. See Burns
v. Clusen, 798 F.2d 931, 937 (7th Cir. 1986). "If
there is a possibility, albeit remote, that
affirmative measures might produce the declarant,
the obligation of good faith may demand their
effectuation." Id. (quoting Ohio v. Roberts, 448
U.S. 56, 74 (1980)). However, we have recognized
that under Rule 804(a)(1) a testimonial
privilege, such as the privilege against self-
incrimination, is an independent ground of
unavailability. See United States v. Kehm, 799
F.2d 354, 361 (7th Cir. 1986). Therefore, the
rule is not that the government must do
everything it can to get a witness to testify,
only that it make a reasonable, good faith effort
to get the witness into court. Furthermore, "’the
lengths to which the prosecution must go to
produce a witness . . . is a question of reasonableness.’"
Roberts, 448 U.S. at 74 (citing California v.
Green, 399 U.S. 149, 189 & n.22 (1970)). "The
ultimate question is whether the witness is
unavailable despite good-faith efforts undertaken
prior to trial to locate and present that
witness." Id.

  There is nothing in the record to suggest that
the government acted in bad faith or sought to
procure Simmons’s unavailability. In fact, from
the record, it appears that the government made
a good faith effort to get Simmons to testify.
The government located Simmons, brought him to
court, and asked him to testify at the second
trial. Simmons was called to the stand to
testify, but he refused to do so. Even though the
government offered him additional credit toward
his sentence to re-testify, Simmons stood firm in
his refusal. Reed argues that the government
should have either prevented Simmons from being
sentenced before Reed’s second trial or
threatened to move the court to set aside
Simmons’s plea agreement. Neither Rule 804 nor
reasonableness required the government to
exercise either one of these options.

  Additionally, the district judge, not the
government, retained control over the date and
time of Simmons’s sentencing. And while the
government could have found Simmons in violation
of his plea agreement, it is not clear what this
would have accomplished./3 Reed asks this court
to believe that if the government had threatened
Simmons with setting aside his plea agreement,
this would have compelled Simmons to cooperate.
This is pure speculation. Given that Simmons
refused to testify despite the court’s threatened
sanctions, which could have resulted in the
imposition of unknown penalties, it seems
unlikely that he would have succumbed to the
government’s threats.

  The district judge attempted to compel Simmons’s
testimony as well. Simmons was already in jail,
and while a criminal contempt finding may not
have posed a very serious threat to him, it was
the court’s only option. The court warned Simmons
that if he refused to testify, he could be
subjected to civil and criminal contempt, for
which the penalty could include jail time./4
Simmons still refused to testify. Contrary to
what Reed thinks, neither the government nor the
court ultimately controlled Simmons’s situation.
Simmons made it clear that he would rather give
up the possibility of a reduced sentence, be held
in criminal contempt, and face the possibility of
additional jail time, than testify for the
government at Reed’s second trial. The only
weapons the government had available to it, in
its attempt to compel Simmons’s testimony, were
the threat of more jail time or the possibility
of less. It used one of those weapons and good
faith requires nothing more.

  Second, during the first trial Reed had ample
opportunity to cross-examine Simmons and to
impeach his credibility, and during the second
trial he had the same motive to examine Simmons
as he did during the first trial. Reed maintains
that he did not have a similar motive to develop
Simmons’s testimony during the second trial since
Simmons pled guilty and was sentenced between the
first and second trial. Before a court can admit
prior testimony under Rule 804(b)(1), it must
find that the adverse party has a similar motive
to develop the testimony by direct, cross, or
redirect examination as it did when the testimony
was originally given. Id. at 385. When
considering whether this requirement has been
met, courts look to the similarity of issues and
the purpose for which testimony was given. Id.
"Circumstances or factors which influence motive
to develop testimony include ’(1) the type of
proceeding in which the testimony [was] given,
(2) trial strategy, (3) the potential penalties
or financial stakes, and (4) the number of issues
and parties.’" Id. (citation omitted).

  At the first trial, (1) Simmons testified and
was cross-examined by Reed’s counsel; (2) Reed’s
principal strategy was to impeach Simmons’s
credibility and to establish Reed’s alibi; and
(3) Reed was being tried for bank robbery and was
subject to imprisonment. While the second trial
initially included charges against a third co-
defendant, the parties and issues remained
essentially the same as during the first trial.
The fact that Simmons was actually sentenced and
received a downward departure after the first
trial, does not really change Reed’s motives on
cross. Simmons had entered into the plea
agreement well before the first trial and Reed
knew that Simmons would be getting a substantial
reduction in his sentence in exchange for his
cooperation. He used this information to impeach
Simmons on cross-examination. In addition, at the
second trial, Reed admitted additional evidence
in an attempt to impeach Simmons’s testimony. As
such, we conclude that the district judge acted
reasonably in admitting Simmons’s testimony under
Rule 804(b)(1).

  Having found that Simmons’s testimony was
properly admitted under Rule 804(b)(1), we need
only briefly address Reed’s Confrontation Clause
argument. Reed asserts that because Simmons did
not testify during the second trial, but the jury
heard Simmons’s testimony, Reed was denied his
Sixth Amendment right to be confronted with one
of the principal witnesses against him. The
Confrontation Clause operates to restrict the
range of admissible hearsay. "When a hearsay
declarant is not present for cross-examination at
trial, the Confrontation Clause normally requires
a showing that he is unavailable. Even then, his
statement is admissible only if it bears adequate
’indicia of reliability.’" Roberts, 448 U.S. at
66.

  Confrontation Clause requirements are met when
the prosecution can show (1) necessity (or
unavailability of declarant) and (2) indicia of
reliability. See id. at 65. In essence, to be
lawful under the Confrontation Clause, the
admitted prior testimony must come from an
unavailable witness and be the type of hearsay
that is "marked with such trustworthiness that
’there is no material departure from the reason
of the general rule.’" Id. (citation omitted).
The government has shown that Simmons was
unavailable and since "reliability can be
inferred without more in a case where the
evidence falls within a firmly rooted hearsay
exception," the second requirement, reliability,
has been met as well. Id. at 66. Reed’s rights
under the Sixth Amendment Confrontation Clause
were not violated by the admission of Simmons’s
prior testimony. We therefore reject Reed’s
argument that the district judge wrongly admitted
Simmons’s testimony under either Rule 804(b)(1)
or the Confrontation Clause.

B.   Reed’s Testimony
  During Reed’s second trial, the government was
permitted to read into evidence the entire
transcript of Reed’s testimony from the first
trial. Before we address the merits of Reed’s
challenge to the district judge’s decision to
admit this testimony, a review of the procedural
history relevant to this issue is in order. On
February 23, 1999, prior to the second trial, the
government submitted a motion in limine,
indicating that it wanted to introduce limited
portions of Reed’s testimony from the first
trial. Then, on June 4, 1999, the government
submitted a second motion in limine seeking to
preclude Reed (assuming he would not be
testifying) from offering any of his testimony
from the first trial under Federal Rule of
Evidence 801, which requires such testimony to be
offered by a party opponent. On the morning the
trial was to begin, the government withdrew its
February 23, 1999 motion, and the court granted
the June 4, 1999 motion. At trial and without
objection, the government introduced into
evidence a transcript of Reed’s entire testimony
from his first trial./5

  Reed’s prior testimony was admitted as an
admission of a party opponent under Federal Rule
of Evidence 801(d) (2)(A), which provides that a
statement is not hearsay and may be admitted when
the statement in question is offered against a
party and is the party’s own statement. Reed now
makes two general arguments: (1) each of the
statements that the government sought to include
were not against his interest and (2) the
district judge erred when he failed to require
redaction of Reed’s testimony, so that only the
statements against Reed’s interest remained.
However, neither of these arguments were raised
on the record, at trial or during sentencing. As
such, on appeal, we review the district judge’s
decision to permit the reading of Reed’s entire
testimony for plain error only. See United States
v. McClellan, 165 F.3d 535, 552 (7th Cir. 1999).

  Reed’s first argument fails because, contrary to
Reed’s assertion, statements admitted under Rule
801(d)(2)(A) need not be inculpatory. See United
States v. McGee, 189 F.3d 626, 631-32 (7th Cir.
1999). While Reed acknowledges that admissions
need not be inculpatory, he argues that to be
admissible under Rule 801(d)(2)(A), an admission
must be contrary to the trial position of the
party. This is not the law and Reed has not
persuaded us that it should be. Id. Rule
801(d)(2)(A) merely renders a statement non-
hearsay if it was made by the party against whom
it is offered. As we stated in McGee, the
statements need neither be incriminating,
inculpatory, against interest, nor otherwise
inherently damaging to the declarant’s case. Rule
801(d)(2)(A) simply admits those statements made
by one party, but offered as evidence by the
opposing party. Therefore, the mere fact that the
admitted testimony consisted of statements made
by Reed, but offered by the government in its
prosecution of him, makes Reed’s testimony
admissible under Rule 801(d)(2)(A).

  Reed’s second argument concerning redaction is
equally unpersuasive. Reed suggests that because
not all of the statements contained in Reed’s
prior testimony were against his interest, the
court should have admitted only those portions of
testimony that were expressly inculpatory and
redacted all others. As explained above, Rule
801(d)(2)(A) does not require that any of the
statements admitted be inculpatory. The
government offered the entire transcript of
Reed’s testimony from the first trial against him
as part of its prosecution. Therefore, admission
of the entire transcript was proper under Rule
801(d)(2)(A), and redaction was not necessary.
Reed was not unduly prejudiced by the reading of
his former testimony, and the district judge did
not commit plain error.

C.   Jury Instruction on Simmons’s Cooperation

  Finally, Reed argues that the instruction given
to inform the jury that Simmons received a
sentence reduction in exchange for his testimony
against Reed was inadequate. The instruction the
district judge gave to the jury closely tracks
one of the Seventh Circuit Federal Criminal Jury
Instructions which generally informs the jury
that the witness has "received benefits from the
government in connection with this case, namely
______ [fill in blank to specify benefits
received]." 1 Federal Criminal Jury Instructions
of the Seventh Circuit sec.3.13 (West 1999). The
actual instruction presented to the jurors in
this case read:

You have heard testimony from Frank Simmons, who:
(a) received immunity; that is, a promise from
the government that any testimony or other
information he provided would not be used against
him in a criminal case; (b) received benefits
from the government in connection with this case,
namely the promise that the government would
consider his cooperation and testimony in
determining whether or not to file a motion on
Mr. Simmons’s behalf to reduce sentence (motion
of downward departure); (c) stated that he was
involved in the commission of the offense as
charged against the defendant. . . . You may give
their testimony such weight as you feel it
deserves, keeping in mind that it must be
considered with great caution and great care.
According to Reed, this instruction did not tell
jurors enough about the extent of the sentence
reduction Simmons received after he testified in
Reed’s first trial. Ordinarily, we review a
district court’s decision concerning jury
instructions under the abuse of discretion
standard, see Stuart Park Assoc. Ltd. Partnership
v. Ameritech Pension Trust, 51 F.3d 1319, 1323
(7th Cir. 1995), but since Reed failed to object
to this instruction at trial, once again, we
review for plain error. See United States v.
Bardsley, 884 F.2d 1024, 1028 (7th Cir. 1989).

  Before a district judge allows a jury
instruction, he or she must ensure that the
instruction (1) is a correct statement of the law
and (2) is supported by the evidence. See United
States v. Perez, 43 F.3d 1131, 1137 (7th Cir.
1994). The instruction at issue here is neither
incorrect under the law nor unsupported by the
evidence. The instruction is a statement of fact
designed to inform the jury of a witness’
potential bias and it was sufficiently detailed
to serve that purpose. To tell the jurors the
extent of the sentence reduction Simmons actually
received after testifying against Reed would
offer nothing more in the way of permitting the
jurors to consider Simmons’s motives at the time
he testified.

  We find that the instruction was adequate. "We
give deference to the district court’s discretion
in determining the specific wording of the
instructions . . . . Reversal is necessary only
if the jury’s comprehension of the issues is so
misguided that it prejudiced the party raising
error, and the complaining party bears the burden
of showing prejudice." United States v. Smith,
131 F.3d 685, 688 (7th Cir. 1997) (citations
omitted). Reed had ample opportunity to attack
Simmons’s credibility and to establish his bias
on cross-examination, and the district judge gave
an instruction to highlight Simmons’s potential
motive to lie or to exaggerate his testimony.
Nothing more was needed.

II

  For all the reasons set forth above, we AFFIRM
the judgment of the district court.



/1 Federal Rule of Evidence 804(b)(1) reads,

The following are not excluded by the hearsay
rule if the declarant is unavailable as a
witness: (1) Former testimony. Testimony given as
a witness at another hearing of the same or a
different proceeding, or in a deposition taken in
compliance with law in the course of the same or
another proceeding, if the party against whom the
testimony is now offered, or, in a civil action
or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the
testimony by direct, cross, or redirect
examination.

/2 The government maintains that the trial court’s
decision should be reviewed for plain error only
because Reed failed to preserve his theory that
the government procured Simmons’s unavailability
and failed to make a good faith effort to get
Simmons to testify. However, Reed did preserve
the issue. He objected to the court’s decision to
admit Simmons’s prior testimony.

/3 Simmons’s plea agreement expressly required
Simmons to "testify truthfully and completely
before the grand jury and at any subsequent
trials, if asked to do so."

/4 The government took pains to ensure that the
court made it clear, on the record, that Simmons
was being ordered to testify. "Just for the
record, the United States wanted to make clear to
Mr. Simmons that he is being ordered to testify
by the Court." Tr. at 103.

/5 Actually, at the time the government announced
its intention to read into evidence Reed’s prior
testimony under Rule 801(d)(2), defense counsel
asked to be heard at side bar. Following the
side-bar conference, the district judge informed
the jury that he and the attorneys had been
discussing a particular rule of evidence and that
a new witness would be reading Reed’s testimony
from January 1999 into the record. The side-bar
conference was held off-the-record. Therefore, if
defense counsel did object, this court would have
no way of knowing.
