United States v. Kevin Jacobs ( 1996 )


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  •                                  ___________
    No. 95-3029EA
    ___________
    United States of America,       *
    *
    Appellee,                   *
    v.                                     * Appeal from the United States
    * District Court for the Eastern
    Kevin Jacobs, aka Maurice       *   District of Arkansas.
    Hawkins,                               *
    *
    Appellant.                   *
    ___________
    Submitted:   April 9, 1996
    Filed:  October 3, 1996
    ___________
    Before BEAM and MURPHY, Circuit Judges, BURNS,* District Judge.
    ___________
    BURNS, District Judge.
    On April 7, 1995, a jury convicted Jacobs of conspiracy to commit bank
    robbery in violation of 18 U.S.C. § 371 and armed bank robbery in violation
    of 18 U.S.C. § 2113.     The district court1 sentenced Jacobs to 60 months
    imprisonment on the first count and 300 months on the second count, the
    sentences to run concurrently and to be followed by a five-year term of
    supervised release.    Defendant was also ordered to pay restitution in the
    sum of $1,609.00.
    Jacobs appeals his conviction and seeks a new trial on the following
    grounds:
    *
    The HONORABLE JAMES M. BURNS, United States District Judge
    for   the District of Oregon, sitting by designation.
    1
    The Honorable Donald J. Stohr, District Judge for the
    Eastern
    District of Missouri.
    1.   The district court erred when it instructed the jury by
    reading an incorrect list of overt acts purportedly committed by defendant;
    2.     The district court erred when it admitted defendant's
    confession into evidence; and
    3.     The district court erred when it required defendant to
    conduct over the telephone a significant portion of his cross-examination
    of the government's main witness against him.
    For the reasons articulated below, we AFFIRM Jacobs's conviction.
    JURY INSTRUCTIONS
    Jacobs   contends    he    was     prejudiced    when   the    district     court
    misinstructed    the    jury   by    reading      an   incorrect   list   of   overt     acts
    purportedly committed by defendant.           Jacobs further asserts he should have
    been permitted to reopen his defense following the court's error.
    After the district court instructed the jury, it discovered its
    instructions included an incorrect list of overt acts that were drawn from
    one of the government's early drafts of the Indictment.               The next morning,
    before closing arguments and the jury's deliberations began, the court
    informed the jury of its error and re-instructed the jury with the correct
    list of overt acts purportedly committed by Jacobs.
    "[P]roperly objected to jury instructions" are reviewed for harmless
    error pursuant to Fed. R. Crim. P. 52(a).              United States v. Ryan, 
    41 F.3d 361
    , 366 (8th Cir. 1994), cert. denied, 
    115 S. Ct. 1793
    (1995).                    The test
    "for    determining    the   adequacy    of    jury    instructions      is   'whether    the
    instructions, when taken as a whole, adequately advise the jury of the
    essential elements of the offenses charged and the burden of proof required
    of the government.'" United States v. Bishop, 
    825 F.2d 1278
    (8th Cir. 1987)
    (quoting United States v. Sherer, 
    653 F.2d 334
    , 337 (8th Cir.), cert.
    denied, 
    454 U.S. 1034
    (1981)).
    2
    We are not persuaded by Jacobs's arguments that the court's initial
    error prejudiced him or that the court's subsequent action failed to cure
    the error.   We find the district court's error was harmless "once remedial
    action was properly taken," United States v. Nabors, 
    762 F.2d 642
    , 648 (8th
    Cir. 1985), particularly since the district court cured its error before
    counsel began their closing arguments and before the jury began its
    deliberations.
    Accordingly, we hold the district court's instructions, taken as a
    whole, adequately advised the jury of the essential elements of the
    offenses charged and the burden of proof required of the government.
    JACOBS'S CONFESSION
    Jacobs asserts the district court erred when it admitted his
    confession because his confession was involuntary and coerced.   Jacobs also
    contends his confession was inadmissible because during the interrogation
    he requested and was denied right to counsel in violation of the Sixth
    Amendment.
    Voluntariness of Jacobs's Confession
    A district court's decision as to whether a defendant's confession was
    voluntary is reviewed de novo. United States v. Kilgore, 
    58 F.3d 350
    , 353
    (8th Cir. 1995)(citing United States v. Johnson, 
    47 F.3d 272
    , 275 (8th Cir.
    1995)).
    The test for determining the voluntariness of a confession is "whether
    the confession was extracted by threats, violence, or direct or implied
    promises" to such a degree that defendant's will was overborne, United
    States v. 
    Kilgore, 58 F.3d at 353
    , and "'his capacity of self-determination
    critically impaired.'" Sumpter v.   Nix, 
    863 F.2d 563
    , 565 (8th Cir. 1988)
    (quoting Culombe v.    Connecticut, 
    367 U.S. 568
    (1961)).   The court must
    "inquire into
    3
    the   totality    of   the   circumstances     in   assessing   the   conduct   of    law
    enforcement      officials   and   the   suspect's    capacity   to   resist    any    of
    pressure."    United States v. 
    Kilgore, 58 F.3d at 353
    (citations omitted).
    The record reflects Jacobs was interrogated for approximately two
    hours by the Los Angeles police regarding his possible involvement in a
    murder that took place in California.          Following that interrogation, he was
    interviewed by a special agent for the FBI.          During the interview with the
    Los Angeles police, Jacobs said he was out of state at the time of the
    murder and, as part of his alibi, he stated that he committed armed bank
    robbery in Arkansas around the time of the murder.          In his later interview
    with the FBI agent, Jacobs reiterated that he was in Arkansas robbing a
    bank around the time of the murder and also identified himself as one of
    the bank robbers in the bank surveillance photographs taken during the
    robbery.      Jacobs now contends he confessed to the bank robbery and
    identified himself in the bank surveillance photographs only after the Los
    Angeles police "threatened" him by referring to the possibility that the
    murderer might be subject to the death penalty.
    After hearing the testimony of the LAPD officer and the FBI agent who
    interviewed Jacobs, and after listening to the tape of the interview with
    the Los Angeles police,2 the district court concluded Jacobs's confession
    was voluntary.      We agree.
    On the interview tape, Jacobs first brings up his participation in the
    Arkansas bank robbery on his own initiative long before the officers make
    any oblique references to the
    2
    During the suppression hearing, the district court had
    access to the unredacted tape of the interview with the Los
    Angeles police. A redacted tape containing only Jacobs's
    confession and a transcript of that portion of the tape were
    later admitted into evidence during trial.
    4
    possibility that the person who committed the murder might be subject to
    the death penalty.         Later in the interview, Jacobs voluntarily elaborates
    on his involvement in the bank robbery as a crucial part of his alibi.
    After reviewing the record and listening to the interview tape, we
    find the totality of the circumstances does not demonstrate that Jacobs's
    will    was      overborne   or   that    his   capacity     for   self-determination     was
    critically impaired.            We hold, therefore, the district court did not err
    when it concluded Jacobs's confession was voluntary.
    Admissibility of Jacobs's Confession
    Jacobs also asserts he was denied his right to an attorney in
    violation of the Sixth Amendment even though he asked for one near the end
    of his interrogation by the LAPD3 and, therefore, his confession should not
    have been admitted as evidence.
    A district court's decision to admit or to suppress a defendant's
    confession is reviewed under a clearly erroneous standard. United States
    v. Meirovitz, 
    918 F.2d 1376
    , 1379 (8th Cir. 1990), cert. denied, 
    502 U.S. 829
    (1991).            We must affirm the district court's decision to admit
    defendant's confession unless its decision was "'unsupported by substantial
    evidence, based on an erroneous interpretation of applicable law, or, in
    light       of   the   entire   record,    we   are   left   with   a   firm   and   definite
    conviction'" that the district court made a mistake.                    
    Id. (quoting United
    States v. Jorgensen, 
    871 F.2d 725
    , 728 (8th Cir. 1989)).
    At the beginning of the taped interview with the Los Angeles police,
    Jacobs was advised of and orally waived his Miranda rights.
    3
    Jacobs does not contend he requested an attorney during his
    interview with the FBI agent.
    5
    Jacobs was then interviewed by an FBI agent, was again advised of his
    Miranda rights, and waived his rights both orally and in writing.
    During his interview with the Los Angeles police, Jacobs said he would
    want a lawyer in the event he had to take a polygraph test.                Jacobs did not
    request a lawyer at any other time.              The district court found Jacobs's
    request for an attorney was limited to the specific circumstance of taking
    a polygraph test.      Jacobs did not take a polygraph test; therefore, Jacobs
    was not denied his constitutional right to counsel.
    After listening to the tape and reviewing the transcript of that
    portion of the tape, we agree with the district court; therefore, we find
    the statements made by Jacobs before and after his request were admissible
    as   evidence.   See    Connecticut   v.    Barrett,   
    479 U.S. 523
    ,   529   (1987)
    (defendant expressed a desire for the presence of counsel only in the event
    he had to make a written statement and, therefore, all of defendant's
    statements unconnected to making a written statement were admissible).                 See
    also United States v. Boyer, 
    914 F.2d 144
    , 146 (8th Cir. 1990) ("[A]
    limited   invocation     of   the   right   to    counsel    does    not   preclude   the
    admissibility of statements a defendant makes which fall outside the
    limited invocation."), cert. denied, 
    499 U.S. 908
    (1991).
    In summary, we find nothing in the record to indicate the district
    court erred when it concluded Jacobs's confession was voluntary.                   We also
    find the district court's decision to admit Jacobs's confession was
    supported by substantial evidence and based on a correct interpretation of
    the applicable law.       We hold, therefore, the district court did not err
    when it admitted Jacobs's confession as evidence.
    6
    RIGHT OF CONFRONTATION
    Jacobs also contends the district court erred when it required him to
    conduct by telephone a significant portion of his cross-examination of
    Kimberly Johnson, the government's main witness against him, in violation
    of his rights under the Confrontation Clause of the Sixth Amendment.4
    Background
    When Johnson was called as a witness at Jacobs's trial, she was
    pregnant and close to her delivery date.   Her condition was such that she
    was too large to sit in the witness box in the usual manner and had to turn
    away from the jury.      During cross-examination by Jacobs's counsel, the
    court called a recess to give Johnson a break.   Although she indicated she
    wanted to finish testifying despite her discomfort, the court excused her
    temporarily and requested an ambulance.    Johnson did not return to court
    after the noon recess.    After the district judge excused the jury for the
    day, he advised counsel to consider what they would do if Johnson were
    unable to return to court.    The court also informed defense counsel they
    would be permitted to read into the record portions of Johnson's pretrial
    testimony from the suppression hearing in place of cross-examination if
    Johnson were unable to return to the stand.5
    The following day Johnson's doctor informed the court that
    4
    Jacobs invokes both Fed. R. Crim. P. 26, which provides
    "the testimony of witnesses shall be taken orally in open court"
    in all trials, and the Confrontation Clause of the Sixth
    Amendment, which provides "the accused shall enjoy the right . .
    . to be confronted with the witnesses against him"; however, we
    find resolution of the constitutional question is sufficient to
    lay this issue to rest.
    5
    At a later time during the trial, defense counsel rejected
    the court's offer.
    7
    Johnson would have to stay in the hospital for at least two more days and
    that she might be unavailable to testify during the following week.
    Jacobs's attorney asserted his cross-examination of Johnson was critical
    to Jacobs's defense because Johnson was the government's primary witness
    against Jacobs.      Defense counsel pointed out he had not reached the crux
    of his cross-examination when the court excused Johnson.6         Defense counsel
    also vigorously argued it was crucial for the jury to have the opportunity
    to observe Johnson's demeanor during cross-examination in order to properly
    evaluate her credibility, particularly in light of her prior inconsistent
    statements and the fact that Johnson's testimony was the core of the
    government's case against Jacobs.      Jacobs's counsel requested a continuance
    until at least the following week.         In spite of counsel's objections and
    request for a continuance, the court ruled Johnson would be cross-examined
    by telephone if she were still unavailable that afternoon.
    When court reconvened, the remainder of Jacobs's cross-examination of
    Johnson was conducted over the telephone.       Johnson was on the telephone in
    the hospital with her lawyer present; the trial judge, defendant, and
    counsel were in the judge's chambers; and the jurors were seated in the
    jury    box   listening   to   Johnson's   testimony   through   speakers   in   the
    courtroom.
    The Law
    The Confrontation Clause of the Sixth Amendment "guarantees the
    defendant a face-to-face meeting with witnesses appearing before the trier
    of fact." Coy v. Iowa, 
    487 U.S. 1012
    , 1016
    6
    We do not have an accurate log of the time Jacobs spent
    cross-examining Johnson; however, the court reporter's notes and
    the record reflect Jacobs's cross-examination of Johnson in open
    court filled approximately 13 transcribed pages and his cross-
    examination of Johnson by telephone consisted of approximately 20
    transcribed pages.
    8
    (1988). The basic purpose of the Confrontation Clause is "to ensure the
    reliability of the evidence against a criminal defendant by subjecting it
    to rigorous testing in the context of an adversary proceeding before the
    trier of fact," Maryland v. Craig, 
    497 U.S. 836
    , 845 (1990), and by giving
    defendant the "opportunity, not only of testing the recollection and
    sifting the conscience of the witness, but of compelling him to stand face
    to face with the jury in order that they may look at him, and judge by his
    demeanor upon the stand and the manner in which he gives his testimony
    whether he is worthy of belief."       Mattox v. United States, 
    156 U.S. 237
    ,
    242-43 (1895).   Face-to-face confrontation ensures "'the integrity of the
    fact-finding process.'"    Coy v. 
    Iowa, 487 U.S. at 1020
    (citing Kentucky v.
    Stincer, 
    482 U.S. 730
    , 736 (1987)).
    Although the Confrontation Clause embraces the principle that the
    physical presence of witnesses in a criminal trial and the opportunity for
    the fact-finder to observe the demeanor of witnesses are elements that
    ensure the reliability of evidence admitted against an accused, the Clause
    does   not   guarantee    "criminal   defendants   the   absolute   right   to   a
    face-to-face meeting with witnesses against them at trial." Maryland v.
    
    Craig, 497 U.S. at 844
    , 846.     The preference established by precedent for
    face-to-face confrontation at trial, Ohio v. Roberts, 
    448 U.S. 56
    , 63
    (1980), has occasionally given way.     Maryland v. 
    Craig, 497 U.S. at 849-50
    .
    Specifically, the Supreme Court has carved out a narrow exception to a
    criminal defendant's right to face-to-face confrontation when (1) "denial
    of such confrontation is necessary to further an important public policy"
    and (2) the necessities of the case require same. 
    Id. at 850.
             See also
    United States v. Benfield, 
    593 F.2d 815
    , 821 (8th Cir. 1979) (exceptions
    to the Confrontation Clause "should be narrow in scope and based on
    necessity or waiver").       The trial court is required to identify the
    important state interest and to hear evidence to determine the necessities
    of the specific case before abridging a defendant's right to confrontation.
    Maryland v. 
    Craig, 497 U.S. at 855-58
    .
    9
    Discussion
    1.     Public Policy
    The district court did not identify any state interests that
    compelled it to go forward with the cross-examination of Johnson via
    telephone.    The court may have been concerned about the efficient use of
    court resources and/or defendant's rights under the Speedy Trial Act;
    however, we can only speculate in the absence of the court's identification
    of same.     Mere speculation is insufficient to justify abridgement of
    defendant's constitutional right to confront his accuser face-to-face in
    the jury's presence.
    2.     Necessities of the Case
    A defendant's rights under the Confrontation Clause may be
    abridged if a witness is truly unavailable. See e.g., United States v.
    Kelly, 
    892 F.2d 255
    , 261 (3d Cir. 1989) (videotaped depositions of foreign
    witness taken without defendant's presence admissible because witness was
    unavailable to testify at trial), cert. denied, 
    497 U.S. 1006
    (1990);
    United     States   v.   Mueller,   
    74 F.3d 1152
    ,   1156-57   (11th   Cir.
    1996)(depositions of foreign witness admissible because the witness was
    unavailable to testify at trial).
    When a witness is unavailable due to illness, the Third, Fifth,
    and Sixth Circuits have concluded the district court must determine the
    necessities of the specific case by weighing "the importance of the absent
    witness for the case; the nature and extent of the cross-examination . .
    .   ; the nature of the illness; the expected time of recovery; the
    reliability of the evidence of the probable duration of the illness; and
    any special circumstances counselling against delay." United States v.
    Faison, 
    679 F.2d 292
    , 297 (3d Cir. 1982).        See also Ecker v. Scott, 
    69 F.3d 69
    , 72 (5th Cir. 1995) (the court should "engage in a multifactored
    analysis"
    10
    that considers the Faison factors); Stoner v. Sowders, 
    997 F.2d 209
    , 212
    (6th Cir. 1993) ("When the question is one of the health of the witness,
    there must be 'the requisite finding of necessity' which is 'case specific'
    in order to dispense with confrontation in open court.") (quoting Maryland
    v. 
    Craig, 497 U.S. at 855
    ).    We find the approach of our sister circuits
    worthy of emulation.
    Among other things, the district court should have made specific
    inquiry into the severity and duration of Johnson's "poor health."   Stoner
    v. 
    Sowders, 997 F.2d at 212
    .   The district court did not make the requisite
    finding that Johnson was sufficiently unavailable to trigger an exception
    to the Confrontation Clause; i.e., Johnson "was not dead, beyond the reach
    of process nor permanently incapacitated." Ecker v. 
    Scott, 69 F.3d at 71
    .
    Johnson was, in fact, only temporarily unavailable for cross-examination
    because of her medical condition.     Nothing in the record indicates she
    would have been unlikely to recover in a short time or would have been
    unable to appear in open court within a reasonable time.
    Johnson was the government's primary witness against Jacobs.
    Although the jury had the opportunity to observe Johnson's demeanor before
    she was excused,7 a significant portion of Jacobs's cross-examination did
    not take place in the presence of the jury.    In fact, counsel, defendant,
    and jurors were all denied the opportunity to observe the facial and
    physical expressions that accompanied Johnson's responses to the greater
    part of Jacobs's cross-examination.       As we have noted before, "in some
    undefined but real way recollection, veracity, and communication are
    influenced
    7
    The jury had the opportunity to observe Johnson's demeanor
    during direct examination by the government, cross-examination by
    one codefendant, and the partial cross-examination by Jacobs
    before Johnson was excused.
    11
    by face-to-face challenge."       United States v. 
    Benfield, 593 F.2d at 821
    .
    Jacobs was deprived of this critical face-to-face challenge in the presence
    of the jury.
    Jacobs's right to have the jury evaluate Johnson's demeanor
    during cross-examination was an important protected interest.        Mattox v.
    United States, 
    156 U.S. 237
    , 242-43 (1895).        Although Jacobs's arguments
    might wield less power if the jurors, defendant, and defense counsel were
    able to view by video monitor the witness's demeanor and "body language"
    that accompanied her responses, we are reluctant to tolerate even these
    technological   variations   on   "face-to-face"   confrontation   except   when
    necessity or waiver have been demonstrated.        See e.g., United States v.
    
    Benfield, 593 F.2d at 821
    ; Lam v. Iowa, 
    860 F.2d 873
    , 874 (8th Cir. 1988)
    (admission of videotape of witness's deposition insufficient to overcome
    constitutional violation of defendant's right to confront his accuser
    face-to-face in the presence of the jury because the witness's presence
    could have been obtained), cert. denied, 
    490 U.S. 1069
    (1989).
    In conclusion, the circumstances of this case do not persuade us
    we should endorse cross-examination via telephone either generally8 or in
    this particular criminal case.       We hold, therefore, the district court
    erred when it substituted cross-examination via telephone for in-person
    cross-examination in open court without identifying the important state
    interests and hearing evidence to determine the specific necessities of
    this case that justified abridgement of Jacobs's constitutional right to
    confront his accuser face to face.
    8
    In Murphy v. Tivoli, we held that telephone testimony does
    not qualify as testimony taken in "open court" even though we
    acknowledged that a party may read into the record a witness's
    deposition taken by telephone if that witness was truly
    unavailable to testify at trial. 
    953 F.2d 354
    , 359 (8th Cir.
    1992).
    12
    Harmless Error Analysis
    All errors of constitutional dimension do not automatically call for
    reversal.    Chapman v. California, 
    386 U.S. 18
    , 23 (1967).      We review
    Confrontation Clause errors under the Chapman harmless- error rule.9 Coy
    v. 
    Iowa, 487 U.S. at 1021
    . See also United States v. Simmons, 
    964 F.2d 763
    ,
    770 (8th Cir.), cert. denied, 
    506 U.S. 1011
    (1992).
    To hold a federal constitutional error harmless, we must declare "the
    error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall, 
    475 U.S. 673
    , 684 (1986). See also Lufkins v. Leapley, 
    965 F.2d 1477
    , 1481 (8th
    Cir.), cert. denied, 
    506 U.S. 895
    (1992).    Whether the error was harmless
    beyond a reasonable doubt "must . . . be determined on the basis of the
    remaining evidence" rather than whether the jury's assessment or the
    witness's testimony would have changed in the absence of the error.    Coy
    v. 
    Iowa, 487 U.S. at 1021
    -22.
    During his interviews with the LAPD and the FBI in California, Jacobs
    confessed to the bank robbery in Arkansas.   Jacobs also identified himself
    in the bank surveillance photograph during his interview with the FBI
    agent.   This Circuit has consistently followed Wong Sun v. United States,
    
    371 U.S. 471
    , 489 (1963), in which the Supreme Court held "the guilt of an
    accused may stand on nothing more than the defendant's . . . uncorroborated
    confession" if the state "has established injury to person or property
    caused by the criminal acts of some person." Lufkins v. 
    Leapley, 965 F.2d at 1482
    (citing United States v. Opdahl, 
    610 F.2d 490
    , 493 (8th
    9
    Although the government did not raise the issue of harmless
    error, we may undertake such analysis sua sponte when we think
    "the finding of harmlessness is beyond reasonable argument" and
    our review of the straightforward record "will prevent an
    expensive and futile remand." Lufkins v. Leapley, 
    965 F.2d 1477
    ,
    1481-82 (8th Cir.), cert. denied, 
    506 U.S. 895
    (1992).
    13
    Cir. 1979), cert. denied, 
    444 U.S. 1091
    (1980)).                 In this instance,
    however, Jacobs's conviction stands on much more than his confession.
    Johnson was an important witness for the government.          In the presence
    of the jury during direct examination, cross-examination by one defendant,
    and the part of Jacobs's cross-examination conducted in open court, Johnson
    essentially corroborated several material elements of Jacobs's confession:
    She was the friend Jacobs said he knew in Arkansas before the bank robbery;
    she was the friend Jacobs said he was staying with in Arkansas at the time
    of the bank robbery; and she was the woman Jacobs referred to in his
    confession who was arrested with the stolen money in the trunk of the car
    she was driving.      Johnson also readily identified Jacobs as one of the
    robbers in the bank surveillance photograph.
    In his cross-examination of Johnson in open court, Jacobs primarily
    attacked Johnson's credibility by pinpointing inconsistencies between her
    testimony and earlier statements she made to police.                The portion of
    cross-examination     conducted     by   telephone   was   cumulative    in    that   it
    consisted of more of the same; i.e., Jacobs's cross-examination over the
    telephone was essentially a continuation of Jacobs's challenge to Johnson's
    credibility and centered on showing inconsistencies between the statements
    Johnson made before and during trial relating to details about the sequence
    of events leading up to and following the bank robbery.           None of Johnson's
    testimony, either in court or via telephone, contradicted or cast doubt on
    the material elements of Jacobs's confession.
    In the absence of any of Johnson's testimony, the remaining evidence
    was still more than "minimally sufficient" to support Jacobs's conviction.
    Lam v. 
    Iowa, 860 F.2d at 876
    .       One of the Los Angeles police officers and
    the   FBI   agent,   who   each   conducted    separate    interviews   with   Jacobs,
    testified to the fact that Jacobs voluntarily confessed and that he offered
    his confession as part of
    14
    his alibi for the murder in California.   The jury heard the redacted tape
    and read the transcript of Jacobs's confession.     A defendant's confession
    "has an extraordinary impact on a finder of fact." Lufkins v. Leapley, 965
    F-2d at 1482-83 (citing generally Arizona v. Fulminante, 
    499 U.S. 285
    (1991)).   "[W]hen a defendant admits a crime, the jury will be tempted to
    rest its decision on that evidence alone."        
    Id. The jury
    in this case,
    however, had more than Jacobs's confession.   The testimony of the FBI agent
    also established that Jacobs identified himself in the bank surveillance
    photograph during his interview with the agent.    Two employees of the bank
    present at the time of the robbery also identified Jacobs in open court as
    one of the bank robbers.
    After reviewing the record as a whole, we are convinced beyond a
    reasonable doubt the violation of Jacobs's rights under the Confrontation
    Clause was harmless error.
    CONCLUSION
    Based on the foregoing, we AFFIRM Jacobs's conviction.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    15