United States v. Kevin Jacobs

___________
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