United States v. Collin Taplin, Jr.

954 F.2d 1256, 1992 WL 11165

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 22, 1992
• Docket: 90-6198
• Status: Published

Opinions

SUHRHEINRICH, Circuit Judge.

At issue in this appeal is whether the district court erroneously admitted into evidence the pretrial testimony of a co-conspirator. Defendant submits that Fed.R.Evid. 804(b)(1) and the Confrontation Clause of the Sixth Amendment were violated by the admission at trial of statements made in a suppression hearing. Because we find a breach of Rule 804(b)(1), we reverse.

I

In February 1989 defendant Collin Tap-lin, Jr., and Preston Tillman Bailey, Jr., conspired to transport cocaine from Houston, Texas to Nashville, Tennessee. This business venture ended when both were charged with possession with intent to distribute cocaine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 , and conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Both defendants pled not guilty.

In August 1989 Taplin filed a motion to suppress evidence, and Bailey asked to join. After Taplin’s motion was granted, Bailey took the stand in support of his own motion. Bailey discussed the conspiracy to transport cocaine, Taplin’s recorded telephone calls inducing him to visit Jackson, Tennessee, and the circumstances of his own arrest. Upon completion of Bailey’s testimony Taplin filed a second suppression motion, which also was granted. Bailey’s motion was denied for want of standing.

Bailey elected not to testify during Tap-lin’s separate trial, invoking his Fifth Amendment privilege against self-inerimi-nation. The government moved to admit portions of the testimony Bailey furnished at the suppression hearing. The district court admitted this hearsay testimony pursuant to 804(b)(1).

Following a two-day jury trial, Taplin was found guilty of both charges. He was sentenced to serve 60 months in prison on each count, to run concurrently.

II

Taplin submits that Bailey’s pretrial testimony is inadmissable hearsay and violates his Sixth Amendment right of confrontation. Because we agree with Taplin’s evi-dentiary conclusion, there is no need to reach the merits of his constitutional argument.

We will not reverse a trial court’s evidentiary rulings “absent a clear showing of abuse of discretion.” United States v. Hickey, 917 F.2d 901, 904 (6th Cir.1990). We find abuse of discretion when a court “improperly applies the law or uses an erroneous legal standard.” Black Law Enf. Officers Ass ’n. v. City of Akron, 824 F.2d 475, 479 (6th Cir.1987) (quoting Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.), cert. dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985).

Rule 804(b)(1) 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 direct, cross, or redirect examination.

The predicate of unavailability is satisfied here and is not contested on appeal. But the unmet requirements of opportunity and similar motive place Bailey’s statements beyond the reach of 804(b)(1).

The opportunity to develop testimony offered at another proceeding is not established by presence alone. The mere fact that Taplin’s attorney was in the courtroom during Bailey’s suppression testimony and was asked by the presiding judge if he had any questions, is not proof that Taplin was prepared for a full and thorough cross-examination of the witness.

The kind of proceeding at which testimony is offered conditions the quality of opportunity to develop that testimony. It is well-settled that testimony presented at a trial provides a defendant with an adequate occasion to fully examine the witness. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). By contrast, testimony presented at a grand jury proceeding is not subject to cross-examination and therefore does not qualify under the rule. Young v. United States, 406 F.2d 960 (D.C.Cir.1969).

In order for a suppression hearing to provide the opportunity for testimonial development required by the rule, we think it essential that the hearing involve the defendant qua defendant. United States v. Rundle, 417 F.2d 305 (3d Cir.1969), cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970). If the motion for which testimony is elicited does not require the defendant’s presence, then the fortuity of his appearance is not the equivalent of a full opportunity to develop testimony. Opportunity under 804(b)(1) means more than naked opportunity. United States v. Franklin, 235 F.Supp. 338, 341 (D.C.1964).

In the present case, Bailey’s testimony was offered to demonstrate his standing to join Taplin’s motion. Taplin’s presence was not required for this determination. Nor does the fact that Taplin later made a second motion establish his compulsory presence during Bailey’s motion. We therefore hold that Taplin did not have the requisite opportunity to develop Bailey’s testimony at the suppression hearing.

The dissent agrees with the standard set forth here but argues that Taplin’s presence was no fortuity. Experience persuades me that the facts as copiously narrated by the dissent do not amount to the kind of opportunity required by the federal rule. The dissent’s theory imposes an unjustifiable burden on future litigants. Litigants would be forced to develop testimony in a circumscribed proceeding for an unknown reason, or risk having the testimony used against them later under unforeseen circumstances. The rules of evidence do not place parties in so untenable a litigating position.

Taplin also lacked a similar motive. The traditional formulation of the similar motive requirement is that the two proceedings must reflect a “substantial identity of issues.” 8 James W. Moore et al., Moore’s Federal Practice § 804.04[3] (2d ed. 1989). Identity of issues ensures that the opposing party had a meaningful opportunity to develop testimony when it was first offered. United States v. Wingate, 520 F.2d 309, 316 (2d Cir.1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976).

The issue at the suppression hearing that brought forth Bailey’s testimony was his own expectation of privacy in a vehicle searched by police. The issue at trial was Taplin’s guilt or innocence. Taplin had no incentive to examine Bailey at the suppression hearing because the latter’s standing was not an issue materially affecting Tap-lin. However, Taplin’s incentive to develop testimony at trial was much greater owing to a concern for his ultimate fate. A dissimilar motive defeats the 804(b)(1) claim.¹

Ill

To sum up, the district court’s decision to admit Bailey’s suppression hearing testimony at Taplin’s trial was reversible error. Taplin’s fortuitous presence at the suppression hearing was not opportunity as contemplated by the former testimony exception to the hearsay rule. Nor can it be said that Taplin’s motives at the two proceedings were similar. We therefore REVERSE.

1 . The dissent believes that Taplin "had a very strong motive to discredit Mr. Bailey or put his testimony in a different light if he possibly could.” This approach misstates the inquiry. Whether Taplin had the requisite motive ought not be determined by a judge’s subjective judgment. As outlined above, the question is whether the issues are substantially similar such that the incentive to develop testimony is similar in the two proceedings.