                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                APR 23 1999
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 97-3293
                                                       (D.C. No. 97-CR-20003)
 CHAD A. STROBLE,                                        (District of Kansas)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before PORFILIO, MCKAY, and TACHA, Circuit Judges.




       Chad A. Stroble was convicted of being a felon in possession of a firearm in

violation of 19 U.S.C. §§ 922(g)(1) and 924(a)(2) and sentenced to 87 months’

incarceration. He appeals on grounds: (1) the evidence was insufficient to show he

knowingly possessed the firearm; and (2) the district court erred in excluding previously

sworn testimony of an unavailable witness who had testified in a prior proceeding in state

court. Finding no error, we affirm.

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       At approximately 4:00AM on October 14, 1996, Officer Daniels of the Kansas

City Police Department was parked in his police vehicle observing traffic when he

noticed a small silver vehicle traveling toward him with its lights out and on the wrong

side of the street. He prepared to turn his spotlight on the vehicle, but before he was able

to do so, he heard two gunshots fired. He could not see who fired the shots but noticed a

muzzle flash from the driver’s side window of the approaching vehicle. Two more shots

were fired, and the officer again observed muzzle flashes. He said they came from a

“shiny object” held by an arm reaching outside the vehicle’s window on the driver’s side.1

Officer Daniels stopped the car and found the driver, Mr. Stroble, and Nancy Carley, the

only passenger. From inside the vehicle, Officer Daniels recovered a box containing a

stainless steel .357 magnum pistol, expended shell casings, and live rounds.

       Mr. Stroble was first charged in Wyandotte County court with state violations

relating to the incident. During a preliminary hearing held in that case, Ms. Carley

testified the firearm was hers and Mr. Stroble knew nothing about it.2




       1
        While arms do not ordinarily hold objects, the officer’s testimony was less than
explicit. Nonetheless, the intent of his statement is clear that the object was held by a
person whose arm extended outside the window on the driver’s side of the car.
       2
        In its brief, the government contends immediately following the incident, Ms.
Carley made statements contrary to her preliminary hearing testimony. To support this
contention, the government cites only its own brief filed in the district court in opposition
to defendant’s motion for a new trial. Suffice to say, there is no evidentiary support for
this contention.

                                            -2-
       Nevertheless, when called as a defense witness in this case, Ms. Carley refused to

testify without the presence of her attorney. The district court attempted to locate the

lawyer over the noon recess. Although the marshal was able to reach the attorney’s

office, he was told counsel was unavailable. Subsequent attempts to reach the lawyer

were unsuccessful in spite of his secretary’s assurance he was “in court.” The importance

of Ms. Carley’s testimony notwithstanding, defendant did not request a recess to pursue

that attempt further or seek other relief to remove the impediment from Ms. Carley’s

appearance. Without more, the court declared Ms. Carley “unavailable,” and she was

released and not required to testify.3 Although defense counsel attempted to convince the

court the transcript was admissible as permissible hearsay, the court denied the attempt.

       Subsequently, Mr. Stroble took the stand and testified, in direct conflict with

Officer Daniels, that no weapon was ever fired from the vehicle he was driving and he

was unaware Ms. Carley possessed a gun. He explained Ms. Carley had decided at that

early hour to go to the house of a friend to return several personal items and was surprised

when the gun was discovered among those items. He further stated they also heard

gunshots. Because he knew they were in a dangerous neighborhood, he stopped the car

and turned off the lights. After a few minutes. Mr. Stroble started the car and proceeded

on only to be stopped by Officer Daniels.


       3
        Whether Ms. Carley was exercising her self-incrimination rights as the district
court held, or her right to counsel, is not clear. Neither party objected to the district
court’s conclusion on either ground.

                                            -3-
       On appeal, Mr. Stroble first argues the evidence was insufficient to show he

knowingly possessed the firearm. We review de novo whether there is sufficient evidence

to support a jury verdict. United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997).

Evidence to support a conviction is sufficient if, considered in the light most favorable to

the government, it would allow a reasonable jury to find the defendant guilty beyond a

reasonable doubt. Id. We do not question a jury’s credibility determinations or its

conclusions about weight of the evidence. United States v. Johnson, 57 F.3d 968, 971

(10th Cir. 1995).

       Although Mr. Stroble argues no one ever saw him possess the firearm found in the

vehicle, that point is not persuasive. Viewed in the light most favorable to the

government, the evidence is sufficient. As the government points out, “the testimony of

Officer Daniels did put the driver of the vehicle in possession of the firearm and the

defendant was determined to be that driver.” The object from which Officer Daniels saw

muzzle flashes was “shiny” and the revolver found in the car was stainless steel.

Moreover, both spent and live cartridges were found in that gun and removed by Officer

Daniels. We believe these facts were enough to support a finding the defendant

possessed the firearm as charged. Defendant’s argument is simply that we should believe

his version of the facts rather than that of Officer Daniels. We cannot engage in that

exercise.




                                            -4-
       Mr. Stroble next argues the district court improperly refused to admit the transcript

of Ms. Carley’s previously sworn, cross-examined testimony, but the government

contends the testimony was inadmissable hearsay. Hearsay is “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Fed. R. Evid. 801(c). Hearsay is inadmissable unless it

meets an exception provided in the Federal Rules of Evidence or another statutory

authority. United States v. Cass, 127 F.3d 1218, 1222 (10th Cir. 1997).        The district

court found the prior sworn testimony was unreliable because there was no corroboration

outside the statement itself, making the testimony inadmissable. But Mr. Stroble argues

the testimony should have been admitted under the various sections of Fed. R. Evid. 804.

We review for abuse of discretion district court rulings on the admissibility of evidence

and analyze these rulings in the context of the record as a whole. See Wilson, 107 F.3d at

780.

                                 Fed. R. Evid. 804 (b)(1)

       The pertinent rule provides:

              (b) Hearsay exceptions. 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, … if
              the party against whom the testimony is now offered … had
              an opportunity and similar motive to develop the testimony by
              a direct cross, or redirect examination.



                                            -5-
Fed. R. Evid. 804(b)(1). The government did not contest the court’s holding that Ms.

Carley was unavailable as a trial witness. Defendant argues this exception should apply

because: (a) she had given testimony against her own penal interest; (b) the conduct

forming the basis for the state charge was the same; (c) the charge in state court was

comparable to the federal charge; and (d) the state prosecutor cross-examined her.4

       First, as the government argues, it is patent that the United States was not a party

to the state proceeding and did not have an opportunity to cross-examine the witness.

Although defense counsel makes an argument that the United States Attorney for the

District of Kansas represents the people of that state and is therefore one and the same as

the state prosecutor, such is not the case. In a criminal prosecution in the United States

District Court, the United States Attorney is the alter ego of the United States

government. United States v. Singleton, 165 F.3d 1297, 1300 (10th Cir. 1999) (en banc).



       Further, the government’s reliance on United States v. Kapnison, 743 F.2d 1450,

1459 (10th Cir. 1984), is not particularly persuasive because it is not on point. In that

case, a deposition was taken in the course of a civil action; although the witness was not

cross-examined in the deposition, he was cross-examined during the later civil trial.

Thus, defendant claimed the deposition testimony should be admitted in the criminal trial.


       4
        The transcript was not submitted as part of an offer of proof, nor was there any
request made to include it in the record. It is before us only as an appendix to appellant’s
opening brief.

                                            -6-
The court aptly concluded, “Kapnison is simply seeking to introduce depositional

testimony without cross-examination.” Id. at 1459. The court went on to say, “This is

not a California v. Green, 90 S. Ct. 1930 (1970), situation in which a witness’

preliminary hearing statements were held admissible at trial.”

       Green provides:

       [The witness’] statement at the preliminary hearing had already been given
       under circumstances closely approximating those that surround the typical
       trial. [The witness] was under oath; respondent was represented by counsel
       - the same counsel who later represented him at trial; respondent had every
       opportunity to cross-examine [the witness] as to his statement; and the
       proceedings were conducted before a judicial tribunal, equipped to provide
       a judicial record of the hearings.

Id. at 1938. In the present case, we have many of the Green factors, but we are missing

the same counsel and same party. The government argues these features are dispositive

with respect to the 804(b)(1) claim and we agree. There is simply no logic in reading

804(b)(1) in any other way, and the district court did not abuse its discretion in refusing to

admit the testimony under this subsection.

                                  Fed. R. Evid. 804(b)(3)

       The rule provides another exception for:

       [a] statement which was at the time of its making so far contrary to the
       declarant’s pecuniary or proprietary interest, or so far tended to subject the
       declarant to civil or criminal liability, … that a reasonable person in the
       declarant’s position would not have made the statement unless believing it
       to be true. A statement tending to expose the declarant to criminal liability
       and offered to exculpate the accused is not admissible unless corroborating
       circumstances clearly indicate the trustworthiness of the statement.


                                             -7-
Fed. R. Evid. 804(b)(3). The government conceded Ms. Carley’s testimony was a

declaration against her penal interest. Mr. Stroble argues not only was Ms. Carley found

with the firearm in a locked box5 on her lap, but she testified the weapon had never left

the box, it was not fired that night, and Mr. Stroble did not know of its presence.

However, no attempt was made to establish the trustworthiness of this prior testimony

with admissible evidence.6 The government responds these circumstances, coupled with

the fact that Ms. Carley allegedly was later charged with perjury as a result of her state

testimony, reveal the trustworthiness of her statement is shaky at best.7 See United States

v. Guillette, 547 F.2d 743, 754 (2d Cir. 1976).

       Mr. Stroble also relies upon Crespin v. New Mexico, 144 F.3d 641 (10th Cir.

1998), but that case is inapposite. Crespin merely held, in a habeas corpus action, it was

error to admit a non-testifying accomplice’s confession because the confession was



       Officer Daniels said the box was “closed,” but there is no testimony it was
       5

“locked.”
       6
        The record shows defense counsel proffered to the court a written statement by a
friend of Ms. Carley indicating the firearm was loaned to Ms. Carley for a short period of
time for her protection by this friend’s mother, as well as additional testimony Ms. Carley
had admitted to another party the gun was hers. Here, Mr. Stroble alludes to these facts
as additional corroborative information, but they are themselves hearsay and, by
definition, unreliable.
       7
         As Mr. Stroble points out, being charged with perjury is not the same as being
convicted of it. But he cites to no case where testimony of an unavailable witness who
has been charged with perjury for that testimony is admitted under a hearsay exception or
found otherwise reliable. There is no evidence in the record, however, establishing the
fact of the charge.

                                            -8-
presumptively unreliable and it was impermissible to use independent corroborative

evidence to support a hearsay statement. Id. at 646-48. Crespin does not stand for the

proposition hearsay statements that already are patently unreliable are rendered reliable

just because they do not have independent corroboration, as Mr. Stroble seems to argue.

In the absence of any admissible corroborative evidence, we cannot say the district court

abused its discretion in its ruling.

                                   Fed. R. Evid. 804(b)(5)

       The rule provides an exception for:

       [a] statement not specifically covered by any of the foregoing exceptions
       but having equivalent circumstantial guarantees of trustworthiness, if the
       court determines that (A) the statement is offered as evidence of a material
       fact; (B) the statement is more probative of 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 be best served by the admission of the statement into
       evidence.

The government contends Ms. Carley’s testimony about possessing the gun without Mr.

Stroble’s knowledge directly conflicted with information she gave at the time of the

incident. As we have already established, there is no basis in the record for this argument.

Nonetheless, on the strength of the very slim record before us, it is doubtful admission of

Ms. Carley’s testimony would serve the purposes of the rules or the interests of justice.

This is particularly true when the defendant did not ask for a continuance to further seek

out Ms. Carley’s lawyer and obtain his attendance or obtain other relief so this reason for

Ms. Carley’s “unavailability” could be removed. Moreover, the value of her testimony is

                                             -9-
nothing more than speculation which does not lead us to conclude the district court

abused its discretion in excluding it.

       Mr. Stroble next argues he was denied due process to present witnesses in his

defense, and this right is fundamental under Chambers v. Mississippi, 410 U.S. 284, 302

(1973). But, as the government points out, although a defendant has a right to present

witnesses on his behalf, the right is not absolute and a defendant must comply with the

rules of procedure and evidence. See United States v. Austin, 981 F.2d 1163, 1165 (10th

Cir. 1992). None of the cases cited by Mr. Stroble shows the district court’s exclusion of

evidence improperly denied him due process.

       AFFIRMED.



                                          ENTERED FOR THE COURT


                                          John C. Porfilio
                                          Circuit Judge




                                           - 10 -
