United States v. Barry-Scott

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 07a0758n.06
Filed: October 25, 2007
No. 05-4464
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, :
:
Plaintiff-Appellee, :
: ON APPEAL FROM THE
: UNITED STATES DISTRICT COURT
v. : FOR THE NORTHERN DISTRICT OF
: OHIO
:
SHAUNA BARRY-SCOTT, :
:
Defendant-Appellant. :
:
:
BEFORE: GIBBONS and McKEAGUE, Circuit Judges; and BERTELSMAN, District
Judge*.
WILLIAM O. BERTELSMAN, District Judge:
Defendant-Appellant Shauna Barry-Scott challenges the constitutionality of her
conviction on the grounds that she was denied her rights of confrontation and compulsory
process under the Sixth Amendment to the United States Constitution. She also argues that the
judge who issued the search warrant for her residence was not neutral and detached so that the
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
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search conducted pursuant thereto was unconstitutional and the evidence found during the search
should have been excluded. For the following reasons, we affirm.
I.
For the sake of clarity, a brief description of the relevant persons in this matter is
provided. Barry-Scott was arrested on drug charges following an investigation that included
controlled buys. Lamont Westin is a confidential informant who made the controlled buys from
Barry-Scott. Cornell Kennedy is the boyfriend of Barry-Scott’s adult daughter, Akia Hutchins.
Judge John Durkin is the Mahoning County Common Pleas Judge who issued the warrant
for the search of Barry-Scott’s house. While in private practice, Durkin represented Barry-Scott
and her husband, Scott Lester, on similar but unrelated charges.
Officer Jeffrey Solic is an Austin Township Police Officer who was in charge of the
“sting” and monitored the confidential informant.
The facts of this case show that, between January 27, 2003 and April 21, 2003, Lamont
Westin, acting as a confidential informant and at the direction of Officer Solic, made multiple
controlled buys of cocaine base (crack) from Barry-Scott at her residence. Evidence regarding
the controlled buys was summarized by Officer Solic in the affidavit submitted in support of a
search warrant for Barry-Scott’s residence. The search occurred on April 24, 2003, three days
after the last controlled buy, and it resulted in the seizure of 124.73 grams of cocaine base and
$9,000.00 in cash. The search also revealed an additional $1,531.00 in cash in Barry-Scott’s bra.
Some of these bills matched the marked bills used in the controlled buys.
On September 29, 2004, a federal grand jury returned a single-count indictment charging
Barry-Scott with possession with intent to distribute 120 grams or more of cocaine base.
2
On April 18, 2005, the morning before trial was to begin, a suppression hearing was held.
Barry-Scott had filed motions in limine seeking to exclude certain testimonial statements not
subject to cross-examination. She also requested a writ of habeas corpus ad testificandum for
Cornell Kennedy, who was incarcerated in Omaha, Nebraska. Barry-Scott argued that Kennedy’s
testimony was necessary because Kennedy allegedly made statements against interest at the time
of the search. The court noted, however, that despite the opportunity to interview Kennedy,
defense counsel never did so, nor did counsel depose him. Therefore, the district court found
that Barry-Scott had no knowledge of whether Kennedy, were he called to testify, would assert
his Fifth Amendment privilege or deny responsibility for the drugs and money seized from Barry-
Scott’s residence.
The district court concluded that Barry-Scott’s request was an attempt to conduct a
fishing expedition because there was no evidence that Kennedy would offer any testimony that
would be favorable to her. Moreover, the court noted that in a pretrial interview, Kennedy stated
that he did not know anything about the drugs that were seized. Barry-Scott, however, argued
that additional facts indicated Kennedy was not being truthful with the interrogating officer and
that he did know something about the drugs involved.
The district court also held that the defense could call other witnesses to testify that
Kennedy made statements against interest in connection with the search, regardless of whether
Kennedy testified at trial. The district court decided that it would not incur the expense and
security risk of having Kennedy transported from Nebraska when defense counsel had never
talked to Kennedy and could not offer any evidence as to what he was going to say.
Barry-Scott also moved to exclude testimony from Officer Solic regarding Westin’s
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controlled buys from Barry-Scott because Westin was unavailable to testify at trial. The
Government advised that it had tried to locate Westin but could not. The Government also
advised that it would not introduce the recordings of the controlled buys into evidence at trial.
The Government argued that the recordings would not have to be relied upon because the police
conducted surveillance at the buy location, they monitored transmissions of the transactions in
real time, and they dropped Westin off and picked him up immediately after the transactions.
Therefore, the Government argued that they would not have to rely upon Westin’s statements
about what occurred. The court permitted Officer Solic to testify about the investigation upon
which the search warrant was based, what Solic personally heard and observed during the
transactions, and the procedures employed for the controlled buys.
At the suppression hearing, Barry-Scott argued that the search warrant was invalid
because the issuing judge, Durkin, had previously represented Barry-Scott and her husband in
drug-related cases, although he had not represented them since March of 1995. The district court
concluded that the affidavit established probable cause to conduct a search and that Durkin’s
prior representation was not enough to establish a conflict of interest. Moreover, and regardless
of the alleged bias, the district court held that the evidence seized fell within the Leon good faith
exception to the warrant requirement.
The case proceeded to trial. In the Government’s case-in-chief, Officer Solic testified
about the controlled buys made by Westin. Six buys were made between January and April of
2003. Westin was provided money that had been photocopied. Police then placed a body
transmitter and recording device on Westin and took him to a school parking lot a block from
Barry-Scott’s residence. The police maintained surveillance while Westin was inside the
4
residence and listened to the transactions live. After the transactions, Westin met police at the
drop-off location and was searched for money and drugs, as he had been before he was taken to
the drop-off location.
During another transaction, Officer Solic visually identified Barry-Scott when she sold
crack to Westin from her black Pontiac Grand Prix. Solic testified that he identified Barry-Scott
at the time of the buys based upon her driver’s license and that he could also identify her voice
during the live transmission of the transactions.
Based upon the controlled buys, the police obtained a search warrant for Barry-Scott’s
residence. During the search, police seized 124.73 grams of crack cocaine and $9,000.00 from
the bedroom of Barry-Scott’s daughter, Akia Hutchins. Police also seized $1,531.00 from Barry-
Scott’s bra, a portion of which matched some of the buy money serial numbers from transactions
with Westin. Defense counsel specifically questioned Officer Solic about Westin’s statements.
The Government asserted that Westin could not be located to testify at trial.
Defense counsel objected to the admission of some of the Government’s exhibits and to
evidence of the drugs related to the purchases made by Westin, because Westin was not present
during the trial. The district court overruled these objections.
Hutchins testified during the defense’s case-in-chief. She stated that she lived with her
mother at the time of the search and that she had a child with Cornell Kennedy, who sometimes
stayed overnight at the residence. Hutchins testified that Kennedy would bring money to the
residence and that she would help him count it.
Hutchins further testified that a couple of months before the search, she counted the
$9,000.00 that was seized from her bedroom. She also testified that the money belonged to
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Kennedy. Hutchins testified that Kennedy said that he was not going to let her and her mom take
the blame and that he was going to have to take a loss on the money that was seized. Hutchins
also knew where her mother kept the crack that was sold to Westin.
Barry-Scott’s other daughter, Lestacia Scott, testified that Kennedy also told her that he
had drugs and money in the house and that he would not let somebody else take the blame for
them. Similar testimony was given by Dominic Brown, a family friend, who was outside of the
house at the time of the search. The testimony of these three witnesses was emphasized by
defense counsel during his closing argument.
At the close of the trial, on April 20, 2005, the jury found Barry-Scott guilty on count one
of the indictment. On October 18, 2005, Barry-Scott was sentenced to 240 months’
incarceration, plus 10 years of supervised release. Her notice of appeal was timely filed on
November 1, 2005.
II.
Barry-Scott argues in this appeal that she was denied her rights under the Confrontation
Clause as guaranteed by the Sixth Amendment to the Constitution because Westin, the
confidential informant, was not called to testify, and the court would not postpone the trial or
issue a warrant to secure his attendance at trial.
The United States argues that Officer Solic’s testimony about what Westin told him was
not offered for the truth of the matter asserted but rather only as background as to how the
investigation developed. Therefore, it did not violate the Confrontation Clause. The United
States further argues that, even if there was a Confrontation Clause violation, the error was
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harmless because there was sufficient other evidence to convict Barry-Scott, including the
testimony of her daughter; the testimony of Officer Solic, who detailed the process of the
investigation; and the fact that the money found in Barry-Scott’s bra matched the buy money
given to Westin.
Confrontation Clause issues regarding the unavailability of a witness and the
reasonableness of the efforts to produce the witness are mixed questions of law and fact which
this court reviews de novo. Hamilton v. Morgan, 474 F.3d 854, 858 (6th Cir. 2007) (citations
omitted). Confrontation Clause challenges to the admission of hearsay statements against the
accused are reviewed de novo. United States v. Johnson, 440 F.3d 832, 842-43 (6th Cir. 2006)
(citing United States v. Pugh, 405 F.3d 390, 397-99 (6th Cir. 2005)).
The Sixth Amendment Confrontation Clause provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. This is a “bedrock procedural guarantee” that applies to both state
and federal prosecutions. Crawford v. Washington, 541 U.S. 36, 42 (2004) (citation omitted).
The principal evil at which the Confrontation Clause is directed is the use of ex parte
examinations as evidence against the accused. Id. at 50. “[T]he clause’s ultimate goal is to
ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It
commands, not that evidence be reliable, but that reliability be assessed in a particular manner:
by testing in the crucible of cross-examination.” Id. at 61. The Court in Crawford reviewed the
history of the Confrontation Clause and stated that “[t]estimonial statements of witnesses absent
from trial have been admitted only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.” Id. at 59.
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In Crawford, the Supreme Court distinguished between two types of hearsay evidence
against the accused: testimonial and nontestimonial. Id. at 68. The Confrontation Clause
protections apply to both types, but different factors determine whether or not the admission of
the hearsay statements is constitutional. Id. The Court held that statements taken by police
officers in the course of interrogations are testimonial and, specifically as to that case, the
declarant’s recorded statement, knowingly given in response to police questioning, qualified
under the definition of testimonial hearsay. Id. at 53, n. 4. Also held to be testimonial is prior
testimony at a preliminary hearing, before a grand jury, or at a former trial. Id. at 68. 1
To determine whether or not the disputed statements are testimonial, “[t]he proper
inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent,
in turn, may be determined by querying whether a reasonable person in the declarant’s position
would anticipate his statement being used against the accused in investigating and prosecuting
the crime.” Johnson, 440 F.3d at 843 (quoting United States v. Cromer, 389 F.3d 662, 675 (6th
Cir. 2004)). The question here is thus whether a person in Westin’s position would anticipate his
statements being used against Barry-Scott in a criminal prosecution or investigation. Id.
The final part of this Confrontation Clause analysis is that, if there was an evidentiary
error, it must be determined whether said error was harmless. United States v. Baker, 458 F.3d
513, 520 (6th Cir. 2006) (citing United States v. Pugh, 405 F.3d 390, 400 (6th Cir. 2005)). “‘In
determining whether an error is harmless, the reviewing court must take account of what the error
1
Although not determinative of the Confrontation Clause issue presented in this appeal, in
United States v. Johnson, 440 F.3d 832 (6th Cir. 2006), this court recognized that where
statements at issue are nontestimonial hearsay, the decision of Ohio v. Roberts, 448 U.S. 56
(1980), is still controlling. Johnson, 440 F.3d at 844. Crawford abrogated Roberts’ holding as to
out-of-court testimonial statements. Crawford, 541 U.S. at 68.
8
meant to [the jury], not singled out and standing alone, but in relation to all else that happened . .
. . In other words, we must find that it was more probable than not that the error materially
affected the verdict.’” Id. (quoting Pugh, 405 F.3d at 400-01).
Barry-Scott argues that her Confrontation Clause rights were violated when the
confidential informant, Westin, was not produced for cross-examination and Officer Solic was
permitted to testify as to what he heard Westin say to Barry-Scott during the investigation. Out-
of-court statements were permitted to be used against her, she argues, when she was not given an
opportunity for cross-examination. The Government responds that the Confrontation Clause was
not violated because the testimony was not hearsay as it was not offered for the truth of the
matter asserted but instead was offered only to prove the procedures of the investigation.
This court has reviewed the entire trial transcript as well as the transcripts of the hearings
on the motion to dismiss and the motion to continue. Overall, it is evident that Barry-Scott
received a fair trial. It is also evident, however, that there were both testimonial and
nontestimonial statements by Westin that came into evidence through the testimony of Officer
Solic.
Some of the out-of-court statements about which Barry-Scott complains do not present
Confrontation Clause problems because they are not hearsay because the declarant’s testimony
was not being used for the truth of the matter asserted. Rather, Officer Solic was testifying as to
his personal knowledge that the statements were, in fact, made. Officer Solic personally heard
the statements as they were being made, and they were introduced to explain the investigation
process and procedure. These statements were not being offered for the truth of the matter that
drugs were being purchased. As to these statements, Barry-Scott has no viable Confrontation
9
Clause challenge.
It appears, however, that some of the statements were testimonial in that they were given
to police as part of interrogation or questioning of Westin following the buy transactions.
Crawford clearly holds that statements resulting from police questioning are testimonial.
Crawford, 541 U.S. at 53. The only purpose of the statements by Westin to the police officers
was that those statements be used against the accused in investigating and prosecuting the crime.
Therefore, Westin’s statements to the officers fit the definition of testimonial out-of-court
statements as established in Crawford and Johnson. See Cromer, 389 F.3d at 670-71.
Westin engaged in six different controlled drug transactions with Barry-Scott. All were
monitored live by Officer Solic as well as audiotaped. Most of the officer’s testimony about
what Barry-Scott said and did was based on his own first-hand visual observations and audio
monitoring. He did, however, testify that Westin “gave [him] the name and basically the
standard of how he would” make a buy, “and he advised he could make controlled drug buys of
crack cocaine and/or cocaine from the Defendant, Shauna Barry-Scott, who’s seated at the
defense table here.” (JA 28, 195). Westin also purportedly confirmed Barry-Scott’s identity
from a copy of her driver’s license photo. (JA 28). While this information, including the
reference to Westin’s “standard” or “normal procedure” for procuring drugs from Barry-Scott,
could be seen as substantive evidence of Barry-Scott’s involvement in drug deals, it is better
viewed as simply background for the officer’s subsequent discussion of the various controlled
drug transactions, given that the references were brief and were made near the beginning of the
officer’s testimony.
More problematic is another statement attributed to Westin. When describing the second
10
controlled buy, Officer Solic testified that Westin “indicated Ms. Scott was on the way to drop
off the additional crack cocaine.” (JA 31). This was immediately bolstered by the officer’s
testimony that he saw a car registered to Barry-Scott drive up to Westin, and, after Westin
entered the car, the officer heard Westin talking with Barry-Scott about purchasing crack cocaine.
(JA 31-32). Westin’s statement thus placed Barry-Scott at the scene of the second controlled
purchase.
Even more troubling, the Government made several references in its closing argument to
statements purportedly made by Westin. At one point, it referred to Westin’s statement to
Officer Solic that “for the informant to buy drugs from [the defendant], he can only go buy what
he normally would buy. He said the most he could afford was 10 bucks. He can’t go buy
anymore.” (JA 47). The Government offered this statement to explain why the confidential
informant’s controlled purchases were for relatively small amounts of crack cocaine. Id. A few
moments later, the Government asserted, “we know that the confidential informant contacted that
person [ i.e. the defendant] and told Sergeant Solic that’s who it was.” (JA 49). This last
statement clearly implicated Barry-Scott as the drug dealer. Finally, near the end of its closing,
the Government tried to bolster the actions and statements of the confidential informant:
“There’s no question that all those controlled buys took place. That’s not an issue. The
informant’s reliability is not an issue. It’s been corroborated by their own witness [the
defendant’s daughter].” (JA 51).
These statements attributed to Westin do appear to have been proffered to prove the truth
of the matter asserted, rather than simply as background. There being no question that Barry-
Scott did not have an opportunity to cross examine the confidential informant, the statements
11
should have been excluded, and Barry-Scott’s Sixth Amendment right to confrontation was
violated.
However, despite this violation, Barry-Scott’s appeal on this issue ultimately fails
because any error of the district court was harmless. When considering the evidence, it is clear it
was sufficient to convict Barry-Scott without the testimony concerning Westin’s statements. The
evidence before the jury included the officer’s personal observations, the matching buy money,
and the testimony of Barry-Scott’s daughter that she knew where her mother kept the drugs. The
error was thus harmless, and we will not disturb the verdict on this basis.
III.
Barry-Scott next argues that the district court violated her Sixth Amendment right to
compulsory process by failing to grant a continuance and compel the attendance of two
witnesses: Westin, the confidential informant, and Kennedy, the daughter’s boyfriend who
allegedly stated that the money and drugs belonged to him. The Government argues that these
challenges fail because there is nothing to show that the testimony would have been beneficial to
Barry-Scott. Moreover, these issues, the Government asserts, were raised for the first time on
appeal, there is no plain error, and the absence of the witnesses did not affect Barry-Scott’s
substantive rights.
The standard of review of a motion to grant or deny a motion for a continuance in order to
secure the attendance of a witness is abuse of discretion. United States v. Thomas, 29 Fed. Appx.
241, 246 (6th Cir. 2002) (citation omitted). An abuse of discretion will be found only when the
court exhibits “an unreasonable and arbitrary insistence” on the speed of the trial when faced
with a justifiable request for a delay. Id. “Prejudice requires a showing that a continuance would
12
have made a relevant witness available or added something to the defense.” Id. at 246-47.
“‘[M]ore than mere absence of testimony is necessary to establish a violation of the right to
[compulsory process] . . . .[The defendant] must at least make some plausible showing of how
[the witness’s] testimony would have been both material and favorable to his defense.’”
Cunningham v. Stegall, 13 Fed. Appx. 286, 290 (6th Cir. 2001) (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 866-67 (1982)).
The compulsory process guarantee of the Sixth Amendment provides that all criminally
accused shall have the right to compulsory process for obtaining witnesses in his favor. Thomas,
29 Fed. Appx. at 247 (citations omitted). The factors considered by appellate courts in
determining whether a right to compulsory process has been denied include “the diligence of the
defense in interviewing witnesses and procuring their presence, the probability of procuring their
testimony within a reasonable time, the specificity with which the defense is able to describe
their expected knowledge or testimony, the degree to which such testimony is expected to be
favorable to the accused, and the unique or cumulative nature of the testimony.” Id. (quoting
Bennett v. Scroggy, 793 F.2d 772, 774 (6th Cir. 1986)).
This case is similar to Thomas, 29 Fed. Appx. at 247. The law as stated in the Thomas
opinion is directly applicable here in that Barry-Scott asserts that the district court erred when it
denied her motion for a continuance and failed to secure the presence of two witnesses, either by
compulsory process or writ of habeas corpus ad testificandum.
The court in Thomas found that where counsel for the defendant failed to timely file
subpoenas or served them late, where the relevance of the testimony was determined to be
marginal, where several delays had already been granted in order to locate several witnesses, and
13
where counsel never requested the court’s assistance in compelling the witnesses, the district
court had not abused its discretion in denying the motion for a continuance. Id.
Applying these factors to the instant case, Barry-Scott has not shown that either Westin or
Kennedy’s testimony, if presented, would have been beneficial to her or would have aided in her
defense. Westin, of course, was the confidential informant against Barry-Scott and presumably
would not have provided testimony in her favor. Arguably, to have had him available for cross-
examination might have aided her defense. However, she has failed to show that his absence
affected her substantial rights, especially in light of the more-than-sufficient evidence of her
guilt.
With regard to Kennedy, the boyfriend of Barry-Scott’s daughter, Barry-Scott argues that
he could have testified that the money and drugs belonged to him. Defense counsel had not
interviewed Kennedy nor taken his deposition. In response to defense counsel’s request for a
writ for Kennedy, the district court stated: “You can probably offer that testimony during trial
from those other witnesses, but you don’t need to put him on to deny it. We won’t go through
the expense – first of all, you could have taken his deposition and didn’t do it; secondly . . . we
are not going through the risk of having him brought here and the expense of having him brought
here, when you have never talked to him, and that you can’t offer anything as to what he’s going
to say.”
This ruling is a correct application of the law to the facts of this case and is consistent
with the factors as stated in Thomas. Therefore, the decision of the district court was not an
abuse of discretion.
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IV.
Barry-Scott also appeals the district court’s denial of her motion to suppress the search of
her residence, arguing that the judge who issued the warrant was not neutral and detached
because he previously represented her and her husband around 1994-95 and was aware of their
drug activities.2 The Government argues that the judge was sufficiently neutral and detached
and, in any event, the good faith exception would apply even if the warrant were lacking.
This court reviews the district court’s findings of fact in a suppression hearing under the
clearly erroneous standard, while its conclusions of law are reviewed de novo. Untied States v.
Parker, 373 F.3d 770, 771 (6th Cir. 2004) (citations omitted).
There are two categories of cases that address the neutral and detached requirement.
United States v. Bowers, 828 F.2d 1169, 1174 (6th Cir. 1987). The first category includes those
cases that state that the Fourteenth Amendment “would be violated by subjecting a person’s
liberty or property ‘to the judgment of a court, the judge of which has a direct, personal,
substantial, pecuniary interest in reaching a conclusion against him in his case.’” Id. (quoting
Tumey v. Ohio, 273 U.S. 510, 523 (1927)). The second category of cases is based on the
requirements of the Fourth Amendment and emphasizes the need for severance and detachment
of the magistrate from the activities of law enforcement. Id. at 1175. See also Parker, 373 F.3d
at 773; United States v. Bennett, 170 F.3d 632, 637 n. 3 (6th Cir. 1999).
Where the warrant is lacking due to the judge’s failure to act in a neutral and detached
manner, however, the evidence seized pursuant to a defective warrant may still be admissible if it
2
In her pro se supplemental brief, Barry-Scott characterizes the judge as a close personal
friend, but the evidence from the suppression hearing does not support such an inference.
15
fits within the requirements of the good faith exception to the exclusionary rule. United States v.
Caldwell, No. 99-5465, 2000 WL 1277011, at *6 (6th Cir. Aug. 30, 2000) (citing United States v
Leon, 468 U.S. 897, 922 (1984)). In such circumstances, the evidence is admissible if it was
reasonable for the officers executing the warrant to rely upon the judge’s authorization in good
faith. Id.
In this case, the evidence seized is admissible because the record does not establish that
the judge was not neutral and detached and, even if he were not, the warrant was sufficiently
grounded in probable cause for the officers to reasonably rely upon it. Barry-Scott has not shown
that the judge had any specific personal knowledge of her or her husband that was detrimental to
her or that had any impact on his issuance of the warrant. Neither has Barry-Scott shown that the
judge had a personal, pecuniary or substantial interest in the outcome of the search or that he was
too closely tied to the functions of law enforcement. Without such evidence, there is nothing to
suggest that the judge abandoned his role as a neutral and detached judicial officer. Thus, the
decision of the district court based upon these same factors was not clearly erroneous.
However, even if it were shown that the judge was not neutral and detached, the good
faith exception to the exclusionary rule would apply. The warrant was based upon a three-
month investigation that included controlled buys, which were recorded and some of which were
witnessed by the officer requesting the warrant. The warrant on its face, to a reasonable officer,
was sufficient to support a finding of probable cause.
Moreover, the officer requesting the warrant and the officers executing the warrant were
not aware of the former attorney-client relationship between Barry-Scott and the judge. The
alleged bias thus could not have impacted the officers’ activity. Again, the decision of the
16
district court was not clearly erroneous, and Barry-Scott’s appeal on this issue fails.
V.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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