## Facts

- Dwayne Reed was charged with federal bank robbery under 18 U.S.C. § 2113(a).
- In Reed’s first trial, co-defendant Frank Simmons testified for the government under a plea/cooperation agreement, and Reed testified in his own defense.
- The first trial ended in a mistrial due to a hung jury.
- After the first trial, Simmons pleaded guilty and was sentenced.
- At Reed’s second trial (about six months later), Simmons appeared but refused to testify even after the judge threatened contempt.
- The district court found Simmons “unavailable” and permitted the government to read Simmons’s prior testimony to the jury under Fed. R. Evid. 804(b)(1).
- Reed did not testify at the second trial; the court admitted Reed’s entire prior testimony from the first trial as a party-opponent admission under Fed. R. Evid. 801(d)(2)(A).
- The jury convicted Reed, and the district court sentenced him to 240 months’ imprisonment.

## Issues

1. Whether Simmons was “unavailable,” and whether Simmons’s first-trial testimony was admissible at the second trial under Fed. R. Evid. 804(b)(1) without violating the Sixth Amendment Confrontation Clause, including whether Reed had a similar motive to cross-examine Simmons at the first trial.
2. Whether the district court erred by admitting all of Reed’s first-trial testimony at the second trial as non-hearsay under Fed. R. Evid. 801(d)(2)(A), including statements not inculpatory or inconsistent with Reed’s defense.
3. Whether the district court abused its discretion by giving a general instruction (rather than a more detailed one) about credibility concerns and incentives connected to Simmons’s plea/cooperation benefits.

## Decision

- The Seventh Circuit affirmed Reed’s conviction and 240-month sentence.
- The court held Simmons was unavailable after refusing to testify despite a contempt warning, and Simmons’s former testimony was properly admitted under Rule 804(b)(1).
- The court held admission of Simmons’s former testimony did not violate the Confrontation Clause because Reed previously had an opportunity to cross-examine Simmons with a similar motive.
- The court held Reed’s prior testimony was admissible in full under Rule 801(d)(2)(A) as statements of a party offered by the opposing party, even if not inculpatory.
- The court held the general cautionary instruction regarding a cooperating witness’s incentives adequately informed the jury and did not warrant reversal.

## Legal Principles

- A witness who persists in refusing to testify after a court warning and threat of contempt may be deemed “unavailable” for purposes of Fed. R. Evid. 804.
- Former testimony is admissible under Fed. R. Evid. 804(b)(1) when the adverse party had an earlier opportunity and a similar motive to develop the testimony; similar motive turns on the similarity of issues and the purpose of the examination, not identical surrounding circumstances.
- The Confrontation Clause is satisfied where the declarant is unavailable and the defendant previously had an adequate opportunity to cross-examine the witness with a similar motive.
- Under Fed. R. Evid. 801(d)(2)(A), a party’s prior statements offered by the opposing party are admissible as non-hearsay; they need not be inculpatory, against interest, or inconsistent with the party’s current position.
- A general cautionary instruction on evaluating testimony affected by plea agreements or cooperation benefits may be sufficient if it alerts the jury to potential bias and credibility concerns.

## Conclusion

The Seventh Circuit upheld Reed’s bank-robbery conviction, ruling that a co-defendant’s prior testimony could be read to the jury when the co-defendant refused to testify and was deemed unavailable, that Reed’s full prior testimony was admissible as a party-opponent admission, and that the jury instructions on cooperating-witness credibility were adequate.


United States v. Reed, 227 F.3d 763 (7th Cir. 2000)