U.S. v. Walker

• Decision Date: 27 May 2005
• Docket Number: No. 04-50455.,04-50455.
• Citation: 410 F.3d 754
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Michael WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.3d 754

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Michael WALKER, Defendant-Appellant.

No. 04-50455.

United States Court of Appeals, Fifth Circuit.

May 27, 2005.

Joseph H. Gay, Jr., Asst. U.S. Atty., Ellen A. Lockwood (argued), Thomas P. Moore, San Antonio, TX, for U.S.

Henry Joseph Bemporad (argued), Lucien B. Campbell, Fed. Pub. Def., San Antonio, TX, for Walker.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, WIENER, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Timothy Michael Walker was convicted of one count of conspiring to possess with intent to distribute over fifty grams of crack cocaine and one count of possessing with intent to distribute over fifty grams of crack cocaine. Due to his two prior felony drug convictions, the Government sought and received an enhanced sentence of a mandatory term of life imprisonment. On appeal, Walker raises three issues: the court's exclusion, pursuant to FED.R.EVID. 807, of a videotaped police interview of a witness; the admission in evidence of two prior drug convictions; and the court's failure strictly to follow 21 U.S.C. § 851(b) enhancement procedure. Of these, only the first issue is problematic.

BACKGROUND

On November 5, 2003, Police Officer Margarita Venegas was called to the West Wind Hotel in Midland, Texas, to respond to a disturbance in the parking lot. When she arrived, she saw Walker walking away, toward the hotel. Ignoring her order to stop, he started running toward Room 21. He opened the door, threw some items into the room and then was detained by Officer Venegas. Officer Caleb Edwards searched Walker and found some cash and empty plastic bags. Walker was arrested for evading detention.

Meanwhile, in Room 21, Venegas found three women. Denise Asbury, Walker's sister, was in the bathroom, flushing the toilet several times. Police officers searched the room with Asbury's consent and found a small amount of what appeared to be crack cocaine in the bathroom. Asbury, the room renter, was arrested for possession of cocaine. The other two women were also arrested: Cookie Maxwell on an outstanding warrant for theft by check, and Ramona Gregory for giving a false name.

At the jail, Asbury was observed dropping a plastic bag of what appeared to be crack cocaine into a garbage can. Testing later confirmed that the bag contained 108 grams of crack cocaine. About this time, Walker was observed with a plastic bag inside his mouth. It was removed, and the white residue it contained tested positive for cocaine.

While at the jail, Gregory agreed to give a video statement in which she said that the items thrown into the room by Walker were a phone charger, a piece of paper, and a large plastic bag that contained crack cocaine. According to Gregory, Asbury then took this bag and went into the bathroom. Gregory said that Walker had been in possession of the same bag earlier in the evening in Room 21, and that it was this bag that Asbury put in the trash can at the jail.

Maxwell also gave a video statement at the jail. Maxwell said that Walker threw a cell phone and a piece of paper into the room. She denied, however, that either Walker or Asbury had been in possession of any drugs. She said that the first time she had seen any drugs was when Asbury put them in the garbage can in the jail.

Walker pled not guilty and went to trial. Asbury testified against Walker as part of a plea bargain. She admitted that they had both been selling crack from Room 21 for two weeks and that Walker was her supplier. Asbury said that Walker threw a bag of crack cocaine into Room 21 when he opened the door. Gregory also testified at trial that she had been in the room smoking crack cocaine and that Walker had thrown a bag of crack cocaine into the room when he opened the door.

Maxwell could not be found at the time of the trial. Walker sought to enter into evidence her video statement that she had never seen any cocaine until Asbury threw it into the garbage can at the jail. On the Government's objection, the judge refused to allow it into evidence.

The Government presented two prior drug convictions of Walker for the purpose of showing his intent. The convictions also were used to enhance his sentence under 21 U.S.C. § 841(b)(1)(A). Walker was convicted and sentenced to life in prison.

Analysis

Walker first argues that the district judge should have admitted the videotape of the interview with Maxwell under the residual hearsay exception of Rule 807 of the Federal Rules of Evidence. The exception provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence ....

FED.R.EVID. 807.¹

This court reviews decisions to admit or exclude evidence for abuse of discretion. United States v. Phillips, 219 F.3d 404, 409 (5th Cir.2000). The residual hearsay exception "is to be `used only rarely, in truly exceptional cases.'" Id. at 419 n. 23 (quoting United States v. Thevis, 665 F.2d 616, 629 (5th Cir.1982)). We "will not disturb the district court's application of the exception absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors." Phillips, 219 F.3d at 419 n. 23 (internal citations and quotations omitted).²

Walker points to the Ninth Circuit's decision in United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir.1998), to argue that the residual hearsay exception should apply in the instant case. In Sanchez-Lima, the Ninth Circuit reversed the lower court's refusal to admit testimonial videotapes of interviews. Sanchez-Lima, charged with the assault of two border patrol agents, offered several videotapes from a defense investigator containing interviews with other members of his group who were attempting to cross the border illegally. The interviews tended to show that the border patrol agents did not identify themselves and that Sanchez-Lima appeared to be acting in self-defense. The interviewees were deported before the trial and were unavailable to testify.

Reversing the district court, the Ninth Circuit held that all three elements of the Rule 807 exception had been satisfied. The court noted further that the testimony was trustworthy because the interviewees:

(1) were under oath and subject to the penalty of perjury; (2) made the statements voluntarily; (3) based the statements on facts within their own personal knowledge; (4) did not contradict any of their previous statements to government agents and defense investigators; and (5) had their testimony preserved on videotape which would allow the jurors an opportunity to view their demeanor.

Id. at 547. The case was remanded for retrial with consideration of the videotape evidence.

This court has distinguished Sanchez-Lima and upheld the exclusion of interview transcripts, see United States v. Perez, 217 F.3d 323 (5th Cir.2000), based on the deference owed to the trial court and testimony at trial by an INS Agent who estimated that ninety percent of undocumented immigrants lie when questioned by the INS. Id. at 330. Further, the Perez interviewees were not under oath, whereas the interviews in Sanchez-Lima "were made under oath and the aliens were subject to the penalties of perjury, the testimony was preserved on videotape, and the witnesses were subject to cross-examination." Id. at 330 n. 30.

Walker contends that Maxwell's interview more closely resembles those of Sanchez-Lima than Perez. Although not under oath, Maxwell was making a formal statement to police, and "faced serious consequences for any false statement to the officers." And, unlike the other women, who recanted at the police station and admitted to the presence of drugs in the room, Maxwell steadfastly denied in her video statement that she saw any drugs in Room 21. Walker also notes that although the unavailability of cross examination is a key reason to exclude hearsay, Maxwell's videotaped interview was actually conducted by police, giving it greater indicia of trustworthiness than the interviews in Sanchez-Lima, which were conducted by a defense investigator. Finally, Walker argues that as Maxwell's interview was videotaped, the jury could make their own assessments of Maxwell's trustworthiness.

This is a closer case than Perez, but we nonetheless find Walker's arguments unavailing. The lodestar of the residual hearsay exception analysis is whether there exist "equivalent circumstantial guarantees of trustworthiness." FED.R.EVID. 807; McCORMICK ON EVIDENCE 345 (John W. Strong ed., 1999). The fact is, as the Government notes in its brief, "Maxwell was in a room with a lot of cocaine." Cocaine had been found in the bathroom and one of the other women was hiding cocaine on her person. This situation differs dramatically from Sanchez-Lima because the videotape interviewees in that case were already subject to deportation and had no incentive to lie about whether or not it appeared that the border patrol agents were attacking Sanchez-Lima. Sanchez-Lima, 161 F.3d at 547. Maxwell, on the other hand, was not under oath, was being interviewed by police at a police station, and was facing the threat of criminal charges. She had every incentive to lie. Her disappearance before trial confirms her lack of trustworthiness.

Walker also asserts that the district court's failure to admit the videotape evidence violated the compulsory process clause of the Sixth Amendment, an error that...