### The Honorable Andrew W. Bogue, United States District Judge 1 

### for the District of South Dakota, sitting by designation.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-3015

___________ United States of America, * * Appellee, * * Appeals from the United States v. * District Court for the * Eastern District of Arkansas. Carl Wesley Harbin, * * Appellant. *

___________ No. 96-3022

___________ United States of America, * * Appellee, * * v. * * Carol Elaine Harbin, * * Appellant. *

___________ Submitted: February 11, 1997 Filed: May 5, 1997

___________ Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District Judge. 1

___________ BOWMAN, Circuit Judge.

### The Honorable George Howard, Jr., United States District 2 

### Judge for the Eastern District of Arkansas. -2- A jury found Carol Elaine Harbin andCarl Wesley Harbin, husband and wife, guilty of conspiracy to possess with intent to distribut e methamphetamine in vi olation of 21 U.S.C. § 846 (1994). In addition, the juryfound Carol Harbin guilty of possession with intent to distribut e methamphetamine in vi olation of 21 U.S.C. § 841(a) (1994), and use of the United States mail in the delivery of methamphetamine in violation of 21 U.S.C. § 8 43(b) (1994). The Harbins appeal their convictions, and w e affirm.

The Harbins’ primary argument on appeal is that the District Court 2 committed reversible error in their joint trial by admitting into evidence the grand jury testimony of Pam Southard, Carol Harbin’s sister, under the Federal Rule of Evidence 804(b)(5) hearsay exception. Southard read a one

page statement before the grand jury indicating that she had been advised by Carol Harbin that a package containing a candle and addressed to their deceased father was due to arrive at their mother’s trailer on May 31 , 1994. S outhard was directed to phone Harbin when the package wa s delive red. This package, containing a hollowed-out candle filled wit h methamphetamine, was intercepted by postal inspectors and was the subject of a controlled deliv ery on June 6, 1994. Southard retrieved the package from her mother’s street-side mail box and was present in the home when th e officers executed a search warrant following the controlled delivery.

The Harbins each contend that the admission of this testimon y viola ted Federal Rule of Evidence 802, the hearsay rule, and the Sixt h Amendm ent’s Confrontation Clause, both of which require that th e prosecution first establish the declarant’s unavailability prior t o admission of her out-of-court statement. We review the

### Federal Rule of Evidence 804(a)(5) defines 3 

### “[u]navailability as a witness” to include situations in which the declarant “is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance . . . by process or other reasonable means.” -3- Dis trict Court’s decision to admit evidence under Rule 804(b)(5) for a n abuse of discretion. See United States v. Woolb right , 831 F.2d 1390, 1397 (8th Cir. 1987).
Hearsay s tatements generally excluded from evidence by Federal Rule of Evidence 802 may be admitted under Rule 804(b)(5) if the proponent of the state ment is able to make a threshold showing that the declarant i s unavailable. “A good faith attempt to locate and subpoena the witnes s 3 satisf ies the proponent’s obligation to demonstrate that the witness i s unavailable.” United States v. Flenoid , 949 F.2d 970, 972 (8th Cir. 1991)
. Lik ewise, in order to comply with the requirements of the Confrontatio n Clause , “the prosecution must either produce, or demonstrate th e unav ailabilityof, the declarant.” Ohio v. Roberts , 448 U.S. 56, 6 5 (1980); cf. White v. Illinois , 502 U.S. 346, 354 (1992) (clarifying that

“ Rober ts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenge d out-of-court statements were made in the course of a prior judicia l proceeding”). “The ultimate question is whether the witness is unavailabl e despite good-faith efforts undertaken prior to t rial to locate and present that witness.” Ohio v. Roberts , 448 U.S. at 74. The Harbins argue that the prosecution failed to demonstrate that a goo d faith effort was made to proc ure Pam Southard’s presence at trial and that the District Cour t therefore erred in admitting her grand jury testimony into evidence.
Shortlybefore trial, the prosecution filed a motion notifying th e Harbins of its intent to introduce Pam Southard’s grand jury

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testimony due to an inability to locate Southardfor service of a subpoena to appear at trial. The District Court conducte d a preliminary hearing on the admissibility of Southard’s grand jury testimony wherein the prosecuto r stated, “I don’t know where she is. We’ve been trying to serve her. . . . The state police has [sic] tried to find her.” Tr. of Proceedings vol. 1 at 11. After vague references to efforts made by local police an d investigators to loca te and serve Southard, the prosecutor concluded that “Pam Southerd [sic] knows there’s a subpoena for her, but she doesn’t want to testify against her sister.” Id. at 12.

In support of its motion to introduce Southard’s grand jur y te stimony, the prosecutor called Southard’s mother, Edith Barger, t o testify at the prelim inary hearing. Barger testified that Southard lived in a trailer next to hers in Judsonia, Arkansas, until June 1994; tha t Southard had moved and was working at a motel in Kingston, Mississippi; an d that she, Barger, had relayed this information to police each time the y app eared at her home to serve the subpoena on Southard. While Barge r testified that she knew of no address for Southard, she did confirm that she addressed mail to Southard in care of general delivery in Kingston , Mississippi. Barger further testified that Southard “usually comes home every two or three weeks.” Id. at 18. When asked whether Southard wa s reluctant to testify against her sister, Barger stated, “She hasn’t said.

. . . I don’t b elieve she would. . . . That was myopinion.” Id. at 1 9 (emphasis added). When asked whether Southard was deliberately avoiding service, Barger stated, “I don’t think so, because I’ve told them everytim e they’ve come out where she’s at.” Id. at 21. After this hearing the District Court concluded, based on th e prosecutor’s remarks and Barger’s testimony, that Southard “has avoide d efforts on the part of the government to serve a subpoena.

### -5-

. . . [T]he Court is of the view that she is willfully and deliberatel y avoid ing that subpoena.” Id. at 24. Consequently, the District Cour t allowe d the prosecution to read Southard’s grand jury testimony int o evidence during the Harbins’ trial.
We are unable to conclude, based on these facts, that the government carried its burden of proving that it made a good faith effort to locate Southard prior to trial. The prosecution failedto establish that serious attempt s were made to secure Southard’s attendance at trial. Genera l stat ements, without detailed facts, regarding the scope of th e prosecution’s search are insufficient to establish that the requisite good

faith effort was made to locate Southard. No evidence was presented that the prosecution triedto serve Southard in Kingston, Mississippi, or that
reaso nable efforts were made to serve Southard when she was present a t Barger’s trailer which, according to Barger, occ urred “every two or three weeks. ” The prosecution presented no evidence to corroborate it s conclusion that Southard was avoiding service de liberately because she did not want to testify against her sister. The District Court abused it s dis cretion in admitting Southard’s grand jury testimony on the basis o f unavailability.

Because w e hold that the government failed to establish Southard’s unavailability, we need not and do not consider the Harbins’ argument s that the government failed to comply with the remaining requirements for admiss ibility of hearsay statements under Rule 804(b)(5) or under th e Confrontation Clause. While we do not believe that the government carried its burden o f pro ving that Southard was unavailable to testify at trial, the Distric t Court’s improper admission of her grand jury testimony requires reversal of the Harbins’ convi ctions only if the error was not harmless. See Fed. R. Crim. P. 52(a). “An error is harmless

### -6-

if the reviewing court, after viewing the entire record, determines that
no substantial rights of the defendant were affected, and that the error did not influence or had only a very slight influence on the verdict. ” United States v. Cortez , 935 F.2d 135, 140 (8th Cir. 1991) (quoting United States v.McCrady , 774 F.2d 868, 874 (8th Cir. 1985) (citations omitted)), cert. denied , 502 U.S. 1062 (1992); see also Uni ted States v. Roberts , 844 F.2d 537, 547 (8th Cir.), cert. denied , 488 U.S. 867, 983 (1988). After
a review of the entire record, we conclude that no substantial rights of the defendants were affected, and that the admission of Southard’s grand jury testimony had little or no influence on the verdict.
The prosecution presented testimony from a number of co-conspirators who described the Harbins’ involvement in the drug conspiracy. Polic e officers and postal employees recounted the deta ils surrounding controlled deliveries to the Harbins’ residence of packages from California containin g dru gs. Officers also described the drugs and drug paraphernalia seize d from the Harbins’ res idence and outbuildings during execution of a search
warran t after a controlled delivery. Southard’s grand jury testimon y merely provided cumulative evidence that Carol Harbin directed he r California drug suppl ier to address a package containing methamphetamine, intended for Carol Harbin, to Harbin’s deceased father at her mother’ s tra iler. This information was corroborated by a number of the co

conspirators who heard Carol Harbin discuss the impending arrival of the package and who actua lly testified at trial. In these circumstances, the admission of Southard’s grand jury testimony was harmless error.
The convictions of the Harbins are affirmed.

### -7- A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT