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

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No. 96-3015

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United States of America, *

*

Appellee, *

* Appeals from the United States

v. * District Court for the

* Eastern District of Arkansas.

Carl Wesley Harbin, *

*

Appellant. *

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No. 96-3022

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United States of America, *

*

Appellee, *

*

v. *

*

Carol Elaine Harbin, *

*

Appellant. *

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 Submitted: February 11, 1997

 Filed: May 5, 1997

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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.

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A jury found Carol Elaine Harbin and Carl Wesley Harbin, husband and

wife, guilty of conspiracy to possess with intent to distribute

methamphetamine in violation of 21 U.S.C. § 846 (1994). In addition, the

jury found Carol Harbin guilty of possession with intent to distribute

methamphetamine in violation 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. § 843(b) (1994). The Harbins appeal their convictions, and we

affirm.

The Harbins’ primary argument on appeal is that the District Court2

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 onepage 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. Southard was directed to phone Harbin when the package was

delivered. This package, containing a hollowed-out candle filled with

methamphetamine, was intercepted by postal inspectors and was the subject

of a controlled delivery on June 6, 1994. Southard retrieved the package

from her mother’s street-side mail box and was present in the home when the

officers executed a search warrant following the controlled delivery. 

The Harbins each contend that the admission of this testimony

violated Federal Rule of Evidence 802, the hearsay rule, and the Sixth

Amendment’s Confrontation Clause, both of which require that the

prosecution first establish the declarant’s unavailability prior to

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.”

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District Court’s decision to admit evidence under Rule 804(b)(5) for an

abuse of discretion. See United States v. Woolbright, 831 F.2d 1390, 1397

(8th Cir. 1987).

Hearsay statements generally excluded from evidence by Federal Rule

of Evidence 802 may be admitted under Rule 804(b)(5) if the proponent of

the statement is able to make a threshold showing that the declarant is

unavailable. “A good faith attempt to locate and subpoena the witness

3

satisfies the proponent’s obligation to demonstrate that the witness is

unavailable.” United States v. Flenoid, 949 F.2d 970, 972 (8th Cir. 1991).

Likewise, in order to comply with the requirements of the Confrontation

Clause, “the prosecution must either produce, or demonstrate the

unavailability of, the declarant.” Ohio v. Roberts, 448 U.S. 56, 65

(1980); cf. White v. Illinois, 502 U.S. 346, 354 (1992) (clarifying that

“Roberts stands for the proposition that unavailability analysis is a

necessary part of the Confrontation Clause inquiry only when the challenged

out-of-court statements were made in the course of a prior judicial

proceeding”). “The ultimate question is whether the witness is unavailable

despite good-faith efforts undertaken prior to trial 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 good faith effort was made to

procure Pam Southard’s presence at trial and that the District Court

therefore erred in admitting her grand jury testimony into evidence. 

Shortly before trial, the prosecution filed a motion notifying the

Harbins of its intent to introduce Pam Southard’s grand jury 
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testimony due to an inability to locate Southard for service of a subpoena

to appear at trial. The District Court conducted a preliminary hearing on

the admissibility of Southard’s grand jury testimony wherein the prosecutor

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 and

investigators to locate 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 jury

testimony, the prosecutor called Southard’s mother, Edith Barger, to

testify at the preliminary hearing. Barger testified that Southard lived

in a trailer next to hers in Judsonia, Arkansas, until June 1994; that

Southard had moved and was working at a motel in Kingston, Mississippi; and

that she, Barger, had relayed this information to police each time they

appeared at her home to serve the subpoena on Southard. While Barger

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 was

reluctant to testify against her sister, Barger stated, “She hasn’t said.

. . . I don’t believe she would. . . . That was my opinion.” Id. at 19

(emphasis added). When asked whether Southard was deliberately avoiding

service, Barger stated, “I don’t think so, because I’ve told them everytime

they’ve come out where she’s at.” Id. at 21.

After this hearing the District Court concluded, based on the

prosecutor’s remarks and Barger’s testimony, that Southard “has avoided

efforts on the part of the government to serve a subpoena. 
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. . . [T]he Court is of the view that she is willfully and deliberately

avoiding that subpoena.” Id. at 24. Consequently, the District Court

allowed the prosecution to read Southard’s grand jury testimony into

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 failed to establish that serious

attempts were made to secure Southard’s attendance at trial. General

statements, without detailed facts, regarding the scope of the

prosecution’s search are insufficient to establish that the requisite goodfaith effort was made to locate Southard. No evidence was presented that

the prosecution tried to serve Southard in Kingston, Mississippi, or that

reasonable efforts were made to serve Southard when she was present at

Barger’s trailer which, according to Barger, occurred “every two or three

weeks.” The prosecution presented no evidence to corroborate its

conclusion that Southard was avoiding service deliberately because she did

not want to testify against her sister. The District Court abused its

discretion in admitting Southard’s grand jury testimony on the basis of

unavailability. 

Because we hold that the government failed to establish Southard’s

unavailability, we need not and do not consider the Harbins’ arguments

that the government failed to comply with the remaining requirements for

admissibility of hearsay statements under Rule 804(b)(5) or under the

Confrontation Clause.

While we do not believe that the government carried its burden of

proving that Southard was unavailable to testify at trial, the District

Court’s improper admission of her grand jury testimony requires reversal

of the Harbins’ convictions only if the error was not harmless. See Fed.

R. Crim. P. 52(a). “An error is harmless 
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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 United 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. Police

officers and postal employees recounted the details surrounding controlled

deliveries to the Harbins’ residence of packages from California containing

drugs. Officers also described the drugs and drug paraphernalia seized

from the Harbins’ residence and outbuildings during execution of a search

warrant after a controlled delivery. Southard’s grand jury testimony

merely provided cumulative evidence that Carol Harbin directed her

California drug supplier to address a package containing methamphetamine,

intended for Carol Harbin, to Harbin’s deceased father at her mother’s

trailer. This information was corroborated by a number of the coconspirators who heard Carol Harbin discuss the impending arrival of the

package and who actually testified at trial. In these circumstances, the

admission of Southard’s grand jury testimony was harmless error.

The convictions of the Harbins are affirmed.
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A true copy.

Attest:

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