227 F.3d 763 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Dwayne Reed, Defendant-Appellant.
Nos. 99-3618, 99-3798
In the  United States Court of Appeals  For the Seventh Circuit
Argued May 12, 2000Decided September 11, 2000

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.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Ripple, Manion, and Williams Circuit Judges.
Williams, Circuit Judge.


1
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.


2
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

3
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


4
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.


5
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.


6
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.


7
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.


8
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.


9
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.


10
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).


11
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).


12
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.


13
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

14
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


15
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


16
(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).


17
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).


18
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.


19
C.  Jury Instruction on Simmons's Cooperation


20
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


21
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.


22
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).


23
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.


24
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

25
For all the reasons set forth above, we AFFIRM  the judgment of the district court.



Notes:


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.


