United States v. Quinn, 901 F.2d 522 (6th Cir. 1990)

ENGEL, Senior Circuit Judge.

Appellant Calvin Quinn and his codefend-ant, James Taylor, Jr., were convicted of aiding and abetting each other in the possession, with intent to distribute, of a Schedule II controlled substance (cocaine), in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Judgment was entered on April 5, 1989, by the United States District Court for the Western District of Tennessee.

On appeal, Quinn assigns several errors to the district court, and particularly objects to the admission at trial of a witness’ suppression hearing testimony under Fed. R.Evid. 804(b)(1), the “former testimony” exception to the hearsay rule. We conclude that the Government did not satisfy its burden to demonstrate the “unavailability” of the witness and that the admission of this testimony violated Quinn’s rights under the Confrontation Clause of the Sixth Amendment. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Further, the admission of the testimony was not “harmless beyond a reasonable doubt.” See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). For the reasons that follow, we reverse Quinn’s conviction and remand to the district court for proceedings consistent with this opinion. Under the authority of Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 287, 102 L.Ed.2d 265 (1988), we have considered the challenged testimony in reviewing the sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our conclusion that there is sufficient evidence on the record indicates that the Double Jeopardy Clause does not preclude retrial.

I.

On July 26, 1988, Officer Edward Cash of the Memphis Organized Crime Unit and other officers executed a search warrant for James Taylor’s apartment at 4164 Rain-wood, Apartment 3, in Memphis, Tennessee. Because of construction on the building and the removal of the identifying numbers on the apartment doors, the officers erroneously forced entry into a wrong apartment, which was on the second floor of the apartment building. They thereafter proceeded to the correct apartment on the same floor, knocked on the door, and were met by a woman, later identified as Sharon Braxton, and her minor child. This residence was subsequently searched. Officer Mary Coats Johnson testified that she found cocaine and a digital scale in a multicolored athletic bag on the top of a television set. In the bag were thirty-nine packets of cocaine weighing 1,142 grams.

Shortly after the initial entry into the wrong apartment, two officers of the Memphis Police Department, Officers Colburn and Clark, arrived on the scene. The officers were responding to a “prowler call,” which apparently resulted from the erroneous forced entry into the first apartment, but later found that the narcotics officers were in the process of executing the search warrant. Officer Clark testified that while he and another officer were outside the first apartment, Quinn and Taylor came up the steps to the second floor apartments. When the officers asked if they lived in the first residence where forced entry had been made, Taylor indicated that he did not live at that apartment, but lived at the next

apartment. As the officers and defendants walked to the second apartment, the defendants were informed that other officers were serving a search warrant on Taylor’s apartment. Officer Clark testified that when he knocked on the door of the apartment, Quinn, still outside the apartment, jumped from the second story balcony. Quinn later was found hiding in a large hole in a field and was taken into custody after a struggle. The officers then brought Quinn back to the apartment and Quinn, Taylor, and Sharon Braxton were placed under arrest. According to the Government’s brief, Sharon Braxton “was released after it was determined that she had no part in the possession or distribution of cocaine.”

On July 27, 1988, a federal grand jury returned a one count indictment charging Quinn and Taylor with aiding and abetting each other in the possession of approximately 1,142 grams of cocaine, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On August 30, 1988, Taylor filed a motion to suppress the evidence seized pursuant to the search warrant. Quinn joined this motion.1

On September 14, 1988, the district court held a hearing to consider the motion to suppress. During the course of that hearing, Sharon Braxton, called by Taylor as a witness, testified that she had gotten home before Taylor on the day of the search. She testified that Quinn had brought the athletic bag to the apartment at 5:00 or 6:00 in the evening. She also testified that shortly before the officers arrived, Quinn and Taylor left the apartment to get food. On cross-examination, she admitted that she had a relationship with Taylor. She also testified that although she had seen Quinn with the athletic bag she did not know that it contained cocaine. On September 20, 1988, the district court denied the motion to suppress.

On March 8, 1989, the Clerk set this case for trial on April 3, 1989, and set the Report Date for March 16, 1989. On that Report Date, all parties announced they were ready for trial. The jury trial of both defendants began as scheduled on April 3, 1989. On the second day of trial, April 4, 1989, the Government informed the district court that Braxton could not be found and requested the introduction of her suppression hearing testimony. Counsel for Quinn objected strenuously.

The Government presented the following testimony on the Government’s efforts to locate Sharon Braxton. On Wednesday, March 29, 1989, the Government issued a subpoena for Sharon Braxton. Robert O’Banner of the U.S. Marshals Service testified that his office received it on Thursday, March 30, 1989. The district court asked O’Banner whether this is “less time or more time or about the same time that you usually get these subpoenas?” O’Banner stated that “[tjhis was fairly short notice, Judge. Normally we would like at least five working days.” When the district court asked how many times he gets five working days, O’Banner responded: “Most time we’ll get them in with that amount of time, because they’ll explain to the attorneys that we actually need to go out there. We need that, plus we try to get a working address on people that’s employed so we can get them during working hours.”

O’Banner also testified that on Thursday, March 30, he went to 3194 Steele, Number 1, the address Braxton gave at the suppression hearing, but found that “these apartments had one door that’s completely locked.” He testified that he determined which apartment was Number 1 and pounded on the window. He said that he “got no one to come to the door, and I wasn’t sure if anyone was there.”

On Friday, March 31, O’Banner returned to the complex and found no one at the

manager’s office, but accessed the corridor with the help of someone who was working at the complex. He said he “beat the door fairly hard” and left a U.S. Marshal sticker on the door. O’Banner also testified that on Monday, April 3, the first day of the trial, he went back to the apartment. He found no one home, but talked to a woman washing her vehicle, who stated that Brax-ton had moved away about a month ago.

The Government also called Officer Cash. Officer Cash testified that he “had been tied up in Federal Court all last week” and that “[d]uring the weekend I didn’t have the time to go out and try to locate this particular person.” He also testified that he had received information “last night,” i.e., the night of April 3, that Sharon was living at 261 Keel, Apartment 3. Beula Braxton, Sharon’s mother, lived at that address. Officer Cash testified that he went out to the address on the night of April 3, at 12:30 a.m. He verified that Sharon’s car was still registered in her name, but testified that he did not see it when he drove by her mother’s home.

Officer Cash also testified that at approximately 7:45 in the morning on Tuesday, April 4, he

The officer also testified that her mother “advised me that the daughter is gone and that she is in and out of the house and that she did not know where she was living at the time.” Officer Cash also answered in the negative to the following questions:

After receiving the above testimony, the district court concluded that the Government demonstrated a good faith effort to locate and present the witness and that Quinn had an opportunity and similar motive to develop Braxton’s testimony at the suppression hearing. The district court overruled vigorous objections by Quinn’s counsel and admitted Braxton's statements under Fed.R.Evid. 804(b)(1).

The Government introduced portions of the transcript from the suppression hearing through a court reporter. Braxton’s statements indicated that Quinn brought the athletic bag into the apartment on the evening of the arrest.2 Braxton’s suppres

sion hearing testimony was the only evidence introduced by the Government which connected Quinn to the athletic bag and placed him in the apartment before the arrest. After the Government rested, Quinn’s counsel offered no proof, but moved under Fed.R.Crim.P. 29 for a judgment of acquittal, which was denied by the district court. The jury subsequently returned guilty verdicts on April 5, 1989. Quinn was sentenced to 63 months incarceration and a 3-year supervised release.

On appeal, Quinn argues that (1) the district court erred in admitting the transcript of Braxton’s testimony from the suppression hearing, (2) there is insufficient evidence to support his conviction, and (3) the district court made prejudicial comments during closing arguments.

II.

The primary issue in this appeal is whether the Government failed to lay a proper foundation for the admission of Braxton’s suppression hearing testimony. The prosecution bears the burden of demonstrating “unavailability” before a witness’ out of court statement may be admitted. Ohio v. Roberts, 448 U.S. 56, 74-75, 100 S.Ct. 2531, 2543-44, 65 L.Ed.2d 597 (1980). The preference for face to face confrontation as a means to satisfying the Confrontation Clause of the Sixth Amendment3 perhaps was stated best in Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968). The Supreme Court summarized the Confrontation Clause jurisprudence:

The Court also recognized that “there has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.” Barber v. Page, 390 U.S. at 722, 88 S.Ct. at 1320

(citing Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895)). The exception “has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.” 390 U.S. at 722, 88 S.Ct. at 1320 (citations omitted). The exception and the “unavailability” predicate has been articulated not only in Supreme Court jurisprudence but in the Federal Rules of Evidence.4

In Roberts, 448 U.S. at 65, 100 S.Ct. at 2538, the Supreme Court articulated a two-pronged test for determining the admissibility under the Confrontation Clause of a declarant’s out of court statement. First, in the “usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” 448 U.S. at 65, 100 S.Ct. at 2538 (citations omitted). The second prong, which only “operates once a witness is shown to be unavailable,” involves an inquiry into whether a statement is accompanied by adequate “indicia of reliability.” 448 U.S. at 66, 100 S.Ct. at 2539 (quoting Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972)). The Supreme Court has stated that “[reliability can be inferred without more in a case where evidence falls within a firmly rooted hearsay exception.” Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. Since we conclude that the Government did not satisfy its burden to demonstrate Braxton’s “unavailability,” we need not consider conclusively whether her testimony at the suppression hearing bears sufficient indicia of reliability or was admissible as “former testimony” under Fed.R.Evid. 804(b)(1).

In discussing the “unavailability” predicate, the Supreme Court stated in Roberts that a “witness is not ‘unavailable’ for purposes of ... the exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Roberts, 448 U.S. at 74, 100 S.Ct. at 2543 (supplying the emphasis) (quoting Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 1321-22, 20 L.Ed.2d 255 (1968)). The Court further discussed this burden:

California v. Green, [399 U.S. 149, 189, n. 22 [90 S.Ct. 1930, 1951, n. 22, 26 L.Ed.2d 489] (1970) ] (concurring opinion, citing Barber v. Page, supra). The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate. [Roberts, 448 U.S. at 74, 100 S.Ct. at 2543.]

In Roberts, the prosecutors had been in touch with the witness’ parents some four months prior to the trial to ascertain her whereabouts. The evidence indicated that the prosecutor had served subpoenas at her parents’ home on five separate occasions over a period of several months. Further, the witness’ mother testified that her daughter was traveling outside of Ohio, that she had not heard from her in over a year and that she and her family knew of no way to reach the witness even in an emergency. See 448 U.S. at 75, 100 S.Ct. at 2542. In Roberts, the Court held that the Supreme Court of Ohio correctly concluded that the witness was unavailable.

Although the “good faith” and “reasonableness” standards articulated in Roberts, of course, are not subject to exact definition, it is clear here that the Government did not comply. As the Supreme Court stated, the “ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial.” Roberts, 448 U.S. at 74, 100 S.Ct. at 2543 (emphasis supplied). Even considering those acts after as well as prior to trial, the Government’s efforts were insufficient.

Officer O’Banner testified that he received the subpoena on the Thursday before the Monday trial. The late notice is not justifiable because the trial date had been set a month before. This lateness, compounded by the intervening weekend, falls far short of the five working days that O’Banner testified he generally required to locate a witness. Despite this late notice, the ensuing effort was negligible, perhaps due in part to the unreasonable time constraints placed upon the Marshal’s office. On Thursday, O’Banner pounded on the window of the apartment. On Friday, he left a Marshal’s sticker, tried to talk to the manager, and was informed by a woman washing her car that Braxton had moved about a month ago. Nothing was done during the weekend.

Officer Cash testified that he was “informed” on the night of April 3, the first day of trial, that Sharon was at her mother’s. Even then, he merely drove by her house to check for Sharon’s car; he did not testify that he stopped or called that night. He did call the next morning, however, and was told that Sharon was “in and out of the house” and would be in that evening. No testimony was offered that any county or city records were checked, that anyone tried to follow-up on the manager of the apartment building for a forwarding address, or that anyone tried to check with relatives prior to the trial. Further, it would appear that no one checked with any possible employers even though Braxton testified at the suppression hearing that she was employed. While we decline to attribute bad faith to the Government’s effort, we are compelled to observe that it was singularly unenthusiastic.

The conclusion that the Government has not satisfied its burden here is reinforced by the crucial nature of Braxton’s testimony to the Government’s case. We cannot conclude that the admission of the testimony was “harmless beyond a reasonable doubt.” See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The Government offered no other evidence that would have linked Quinn to the athletic bag and, indeed, there was no other evidence before the jury that Quinn was in the apartment earlier or might otherwise have been in constructive possession of the apartment and its contents.

Perhaps most important, the credibility of Braxton’s testimony was highly suspect. Braxton was the girlfriend of Taylor, Quinn’s codefendant. She had a strong motive for shifting blame away from herself and Taylor and therefore, of necessity, upon Quinn. Further, although the

Government asserts in the briefs that Braxton “had no part in the possession or distribution of cocaine,” it would appear that her potential complicity in the drug operation would give her another strong motive to shift any blame away from herself or Taylor. We mention these possible motives not to impugn the credibility of Braxton, since credibility determinations are left to the trier of fact, but to stress the importance of the jury’s opportunity to assess the demeanor of this particular witness. This was a case where the underlying importance of personal confrontation before the jury, stressed by the Sixth Amendment, was abundantly important.

As best stated by Judge Wade H. McCree, Jr., Confrontation Clause considerations “are especially cogent when the testimony of a witness is critical to the prosecution’s case against the defendant.” United States v. Lynch, 499 F.2d 1011, 1022 (D.C.Cir.1974). There the District of Columbia Circuit held that the district court committed prejudicial error in admitting preliminary hearing testimony, noting that “although the dangers of hearsay are mitigated to some extent by the safeguards of the oath and the opportunity to cross-examine in the former tribunal, the prior testimony should be admitted only when the witness is in fact ‘unavailable.’ ” Lynch, 499 F.2d at 1022; see also United States v. Rothbart, 653 F.2d 462, 466 (10th Cir.1981) (trial court committed reversible error in admitting deposition where it was a substantial part of the Government’s case in chief and the Government failed to demonstrate a good faith effort); United States v. Mann, 590 F.2d 361, 367 (1st Cir.1978) (trial court committed reversible error in admitting a deposition of a witness who was “vital” to the Government's case; the “government did not make as vigorous an attempt to secure the presence of the witness as it would have made if it did not have the prior recorded testimony”). Because we cannot say that the admission of this testimony was harmless, we are obliged to reverse.

III.

Quinn argues on appeal that there was insufficient evidence to support his conviction and that the court further erred in denying his motion, made under Fed.R. Crim.P. 29, for a judgment of acquittal. Under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1978), we must review “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”5 Quinn essentially argues that if the trial court erred in the admission of the deposition testimony of Sharon Braxton, and it must therefore be disregarded, the remainder of the evidence was insufficient as a matter of law to support his conviction and he is entitled to an acquittal instead of a new trial.

If, as we have held, Braxton’s testimony was inadmissible as such and should not have been presented to the jury, then it is evident that the remaining evidence before the jury, even construed most favorably to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), was altogether insufficient to prove the essential elements of the crime of possession of cocaine with intent to distribute.6 Without Braxton’s testimony the only proof which remained was the testimony of the officers summarized earlier, concerning the search of Braxton’s apartment and the location of the cocaine in an athletic bag. Codefendant Taylor did not testify. There was no evidence before the jury, with or without Braxton’s testimony, that Quinn had any possessory interest in the apartment which might have supported a constructive possession charge. Likewise, without Braxton’s testimony there is no evidence that he was ever in her apartment since the only evidence as to Quinn was his arrival at the outside of the apartment with codefendant Taylor.

It is true, of course, that Quinn did leap over the balcony outside the apartment and attempt to escape just as the officers were entering the apartment, but there is no evidence placing him inside the apartment at that time or earlier. While his attempted escape was undoubtedly admissible as evidencing guilty knowledge, evidence of flight, by itself, is altogether insufficient to demonstrate any kind of possession on Quinn’s part. See United States v. Craig, 522 F.2d 29, 32 (6th Cir.1975). Even assuming the jury could infer from his flight that Quinn knew that there was cocaine in the apartment, and assuming that there was a sufficient quantity of cocaine from which an intent to distribute on somebody’s part could be inferred, there is still no evidence of Quinn’s actual or constructive possession of the drug or of his aiding and abetting Taylor’s possession. If, therefore, the constitutional sufficiency under Jackson v. Virginia of the evidence at trial had to be measured upon that which was properly admissible, it would necessarily follow that under Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2151, 57 L.Ed.2d 1 (1978), principles of double jeopardy would preclude retrial.

The question presented here, then, is whether we may consider the erroneously admitted testimony, as well as the properly admitted evidence, in reviewing the sufficiency of the evidence. This issue has been recently decided in the affirmative by the Supreme Court in Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). In Lockhart, the Court concluded that “where the evidence offered by the State and admitted by the trial court— whether erroneously or not — would have been sufficient to sustain a jury verdict, the Double Jeopardy Clause does not preclude retrial” 109 S.Ct. at 287. In so holding, the Supreme Court plainly concluded that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not necessarily prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. More directly controlling here was the observation of Chief Justice Rehnquist in Lockhart, following an analysis of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978):

receipt or rejection of evidence.” 437 U.S., at 14-16, 98 S.Ct., at 2148-2150. While the former is in effect a finding “that the government has failed to prove its case” against the defendant,” the latter “implies nothing with respect to the guilt or innocence of the defendant,” but is simply “a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect.” Id., at 15, 98 S.Ct., at 2149 (emphasis added). [Lockhart, 109 S.Ct. at 290.]

The logic employed by the Chief Justice in Lockhart was foreshadowed by that which had earlier been succinctly expressed by the Ninth Circuit in United States v. Harmon, 632 F.2d 812 (9th Cir.1980) (per curiam):

Harmon, 632 F.2d at 814 (citations omitted). Consistent with Lockhart, therefore, we may consider Braxton’s testimony in reviewing the sufficiency of the evidence.

The Supreme Court in Lockhart, however, was careful to emphasize at the outset that “[n]othing in the record suggests any misconduct in the prosecutor’s submission of the evidence.” 109 S.Ct. at 287. As we have already observed, the prosecutor here was tardy in seeking the service of the subpoena and the actual effort was, in our judgment, unenthusiastic. Some form of blame will almost invariably accompany any claim of error and would seem rather obviously to be shown by the record here. We do not, however, conceive that this is sufficient in itself to amount to the kind of misconduct to which the Supreme Court refers in Lockhart. It would also seem that the trial court’s decision to admit the evidence, though erroneous, as we have held, negatives any conclusion on its part that there was misconduct by or attributable to the prosecution.

We are therefore left with determining whether the evidence ruled inadmissible, with that which was properly presented before the jury, was sufficient under Jackson v. Virginia, supra. Viewing the evidence in the light most favorable to the prosecution, we must conclude that it was. It is evident that if Braxton had actually testified in person at the trial to the same circumstances as were admitted through her deposition testimony, a sufficient case would have been made out. It is not challenged that cocaine was found in the athletic bag within the apartment. Braxton’s testimony, if believed by the jury, not only would have placed Quinn in Taylor’s apartment, but would have identified him as the one who had brought the bag into the apartment. While not perhaps obliged to, the jury might have inferred and thus found beyond a reasonable doubt that Quinn had brought the athletic bag into the apartment and that he knew it contained a large amount of cocaine. Further reinforcing that proof, of course, is the proof of Quinn’s unsuccessful flight from the scene, which would corroborate both his possession of the bag and his knowledge that it contained the large quantity of cocaine at the time of his possession. Therefore, we cannot conclude that upon the “evidence adduced at the trial no rational trier of fact would have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2792 (citation

omitted). Consistent with Lockhart and Burks, supra, Quinn may be retried.

IV.

We address one final argument raised by Quinn on appeal. Quinn argues that the comments by the trial judge concerning the lack of “fingerprint evidence” distorted the defendant’s argument and added to the testimony before the jury. During closing argument, Quinn’s counsel stated that “the best corroboration that the Memphis Police Department could have brought in here were Mr. Quinn’s fingerprints on that property they seized there. I submit to you, Mr. Quinn’s fingerprints were not found on any item that was brought in this courtroom.” Counsel mentioned the lack of fingerprints four more times during his closing argument. Taylor’s counsel also argued that the Government did not produce testimony indicating that there were fingerprints.

During the prosecution’s closing argument, the following discussion occurred, apparently within the hearing of the jury:7

The district court did not exceed the boundaries of fair comment, particularly since there was no fingerprint testimony or other proof establishing whether such evidence could or could not have been obtained. See Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 699, 77 L.Ed. 1321 (1933) (although the trial judge may not add to the evidence, mislead or express opinions that are “one-sided,” it is within the province of the trial judge to explain and comment upon the evidence).

Accordingly, the judgment of the district court is REVERSED and the cause REMANDED for a new trial.