United States v. Timothy McKinney , 707 F.2d 381 ( 1983 )

TRASK, Circuit Judge:

Appellant Timothy McKinney appeals his jury trial conviction for armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d).

In June 1981, three armed men robbed the Sequoia Savings and Loan in Fresno, California. Indictments were returned against Timothy McKinney, Larry Simmons and Joe Jennings. Jennings pled guilty to the bank robbery charge. McKinney was convicted in a jury trial on September 17, 1981. On November 12,1981, Simmons was convicted in a jury trial.

I

At trial, FBI Agent Hobart Johnson was a witness for the government. His testimony concerned conversations he had with Evonne Walker several days after the robbery. Evonne Walker was Larry Simmons’ girlfriend. Agent Johnson, relying on his report of his conversation with Walker testified as follows:

Q. What did she say in regard to seeing McKinney on the 11th of June?

A. When she saw him, he had on a dark blue jogging suit.

Q. What time did she see him?

A. At about 11:30 that morning.

Q. Where did she see him?

A. With Larry and Joe at her apartment.

Q. And what did she tell you about the circumstances under which she saw Tim McKinney, Larry Simmons, and Joe Jennings at her apartment at 11:30?

A. That when they came in, Larry told her they robbed a bank.

Q. And what were the words that she said he used?

A. That Larry used?

Q. Yes.

A. That they had just robbed a bank. (Emphasis added).

Evonne Walker had testified earlier that she had no recollection of the statement Simmons allegedly made to her or of her conversation with Agent Johnson. Simmons did not testify at McKinney’s trial. The above quoted testimony came in over the hearsay objections of McKinney’s attorney.

We find that admission of Agent Johnson’s testimony violated McKinney’s sixth amendment right “to be confronted with the witnesses against him.” The sixth amendment issue was not raised in the district court and was neither briefed nor argued in this court. “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 1288, 8 L.Ed.2d 798 (1962) quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); United States v. Jeffery, 473 F.2d 268, 270-71 (9th Cir.), cert. denied, 414 U.S. 818, 94 S.Ct. 42, 38 L.Ed.2d 5 (1973); Rule 52(b) Fed.R.Crim.P. This case presents exceptional circumstances.

II

The Confrontation Clause is not an absolute impediment to the introduction of extra judicial statements. If the statements are necessary and reliable they may be introduced at trial. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980); United States v. Fleishman, 684 F.2d 1329, 1330-31 (9th Cir.1982). The necessity requirement is satisfied by showing the declarant is unavailable. On the record before us we can not determine if Simmons was available to testify at McKinney’s trial.¹ We can determine the reliability of Agent Johnson’s testimony and find it to be unreliable for Confrontation Clause purposes.

The testimony of Agent Johnson was double hearsay — McKinney to Walker and Walker to Johnson.² In Ohio v. Roberts the Supreme Court stated that, for Confrontation Clause purposes, “[rjeliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.”³ 448 U.S. at 66, 100 S.Ct. at 2539. This court, however, rejected this notion, at least for the coconspirator exception⁴ in United States v. Perez, 658 F.2d 654, 660 n. 5 (9th Cir.1981). We stated:

Although the hearsay rules and the confrontation clause promote similar values, admissibility under á hearsay exception does not a fortiori dissolve the court’s obligation to review the record for constitutional infirmity. This principle has particular force when the admission of evidence is sought under the coconspirator exception: Admission under the co-conspirator exception does not automatically guarantee compliance with the confrontation clause. Id. at 660. (citations omitted.)

In this circuit, therefore, if the hearsay falls into an exception, it may be reliable for confrontation clause purposes.⁵ Conversely, if the hearsay does not fall into an exception it is conclusively unreliable.⁶ Our first inquiry is whether the two levels of hearsay in Agent Johnson’s testimony fall within hearsay exceptions.

Ill

Agent Johnson testified that Larry Simmons told Evonne Walker that they (Simmons, McKinney and Jennings) had just robbed a bank. The government contends that McKinney’s silence in the face of Simmons’ statement constituted an adoptive admission pursuant to Federal Rule of Evidence 801(d)(2)(B)⁷ and, therefore, was not hearsay.

In United States v. Sears, 663 F.2d 896 (9th Cir.1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148 (1982), we reviewed the foundation required prior to admitting evidence as an adoptive admission. We said:

Before admitting a statement as an admission by acquiescence, the District Court must determine, as a preliminary question, whether under the circumstances an innocent defendant would normally be induced to respond. The District Court should not submit the evidence of an admission by silence to the jury unless it first finds that sufficient foundational facts have been introduced for the jury reasonably to conclude that the defendant did actually hear, understand and accede to the statement. 663 F.2d at 904.

We find that the foundation in this case was inadequate and, therefore, the district court erred in admitting the statement.⁸

Walker testified that she had no recollection of the statement Simmons supposedly made to her in McKinney’s presence. Agent Johnson, relying on the report of his conversation with Walker, gave the testimony set forth earlier in this opinion. His testimony does not provide an adequate foundation to introduce the statement as an adoptive admission. From this testimony it is impossible to determine where McKinney was when Simmons made the statement. We can not determine if McKinney heard and understood the statement or if the circumstances were such that one could expect him to respond to the statement.

IV

Having determined that Agent Johnson’s testimony violated McKinney’s right to confront witnesses against him, we must now determine if that error requires reversal of the district court verdict. Violations of the confrontation clause require reversal unless they are harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982).

The evidence linking McKinney to the robbery is not overwhelming. The government presented three witnesses who were employees of the savings and loan when it was robbed. These three witnesses identified McKinney in very general terms based on his height and build.⁹ The government also introduced several items seized at McKinney’s apartment including a blue knit cap with stockings inside, a green plaid shirt and a 38 caliber revolver. The seized clothing was similar to clothing worn by one of the robbers but not the robber identified as McKinney. The revolver was similar to the one carried by the tallest robber (supposedly McKinney). There was also tenuous evidence of McKinney and Simmons being together at another savings and loan a week prior to the robbery and acting suspicious.

Agent Johnson’s erroneously admitted statement was tantamount to a confession by McKinney. This testimony was highly prejudicial. In light of the relatively weak evidence against McKinney, we can not say that the jury was not influenced by Agent Johnson’s testimony. The error was not harmless beyond a reasonable doubt and, accordingly, we reverse the judgement of the district court.

1 . Had Simmons been called as a witness at McKinney’s trial it is likely he would have asserted his constitutional right against self-incrimination. Such an assertion makes the declarant unavailable for purposes of the Confrontation Clause. United States v. Fleishman, 684 F.2d at 1338.

2 . As the testimony of Agent Johnson was double hearsay, the necessity and reliability of the statements by Simmons and Walker both need to be examined for Confrontation Clause purposes. We have determined that admission of Simmons’ statement against McKinney violated his confrontation rights, see infra, and, therefore, do not reach the issue of Walker’s statement.

We note that Walker testified she did not recall Simmons statement to her. A lapse of memory may satisfy the necessity requirement of the Confrontation Clause. See California v. Green, 399 U.S. 149, 167-68, 90 S.Ct. 1930, 1939-1940, 26 L.Ed.2d 489 (1970).

3 . As examples of firmly rooted hearsay exceptions the Court listed, dying declarations, cross-examined prior-trial testimony, and business and public records. 448 U.S. at 66 n. 8, 100 S.Ct. at 2539 n. 8.

4 . Fed.R.Evid. 801(d)(2)(E), states:

A statement is not hearsay if—

the statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

5 . In Fleishman, we discussed the analysis which should be followed to test statements which fall into the coconspirator exception. We stated:

The four reliability factors discussed in Dutton [v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213] and Perez are: (1) whether the declaration contained assertions of past fact; (2) whether the declarant had personal knowledge of the identity and role of the participants in the crime; (3) whether it was possible that the declarant was relying upon faulty recollection; and (4) whether the circumstances under which the statements were made provided reason to believe that the declarant had misrepresented the defendant’s involvement in the crime. The reliability factors discussed in Dutton, however, are not to be considered exhaustive, nor are all factors required to be present in order to admit the declarations. An additional factor, sometimes discussed and its relevance debated, is whether the testimony of the coconspirator was “crucial” or “devastating.”

United States v. Fleishman, 684 F.2d at 1339 (citations omitted).

6 . In Ohio v. Roberts the Court stated that if evidence does not fit into a hearsay exception it must be excluded “at least absent a showing of particularized guarantees of trustworthiness.” 448 U.S. at 66, 100 S.Ct. at 2539. This statement appears to approximate the showing required by the “catch all” hearsay exceptions. See Fed.R.Evid. 803(24) and 804(b)(5).

7 . Fed.R.Evid. 801(d)(2)(B) states:

A statement is not hearsay if—

The statement is offered against a party and is . .. a statement of which he has manifested his adoption or belief in its truth.

8 . We do not reach the issue of whether Walker’s statement to Johnson fits into a hearsay exception.

9 . McKinney was supposedly the tallest of the three robbers. One government witness described the tall robber as approximately 6'1" wearing a brown nylon stocking mask and carrying a short-barreled, greyish colored gun. She could not testify as to the color of his clothes. In an interview with Agent Johnson she picked out two photographs from a lineup as looking similar to the tall robber. One of those pictures was of McKinney.

The second government witness described the tall robber as approximately 6'T'. He carried a small, dark, silver colored revolver similar to that produced at trial. She agreed with McKinney’s counsel that she would be unable to positively identify the robbers since they wore masks. She stated she chose McKinney’s photo out of a lineup based primarily on his upper body build.

The third government witness could not identify McKinney’s face or recall his clothing. When asked if she could identify McKinney as the tallest robber she replied, “I’m not sure, but it seems like I’ve seen him before.” She chose McKinney’s photo out of a lineup based on the size of his shoulders.