In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-3618, 99-3798

United States of America,

Plaintiff-Appellee,

v.

Dwayne Reed,

Defendant-Appellant.

Appeals from the United States District Court 

for the Eastern District of Wisconsin.

No. 92 CR 18--J.P. Stadtmueller, Chief Judge &

No. 98 CR 200--Rudolph T. Randa, Judge.

Argued May 12, 2000--Decided September 11, 2000

 Before Ripple, Manion, and Williams Circuit Judges.

 Williams, Circuit Judge. Defendant Dwayne Reed

was charged with bank robbery under 18 U.S.C.

sec. 2113(a). During his first trial, Reed

testified, as did his co-defendant, Frank Simmons

("Simmons"), who was cooperating with the

government. That trial ended with a hung jury,

and the district judge declared a mistrial. Six

months later, Reed was retried and the jury

returned a guilty verdict. At the second trial,

having already been sentenced under his plea

agreement, Simmons, a principal witness in the

first trial, refused to testify. Reed also

decided not to testify a second time. The

district judge then admitted Simmons’s testimony

from the first trial under an exception to the

hearsay rules, Federal Rule of Evidence

804(b)(1), which allows a party to present former

testimony from an unavailable declarant. The

district judge also admitted Reed’s entire

testimony from the first trial as an admission by

a party opponent under Federal Rule of Evidence

801(d)(2)(A). After the jury’s guilty verdict,

the district judge sentenced Reed to 240 months

in prison.

 Reed now appeals, arguing that the district

court erred when it admitted Simmons’s prior

testimony under Rule 804(b)(1) and in doing so

violated the Confrontation Clause of the
Constitution’s Sixth Amendment, that it wrongly

admitted Reed’s entire testimony under Rule

801(d)(2)(A), and that the district judge should

have given a more detailed jury instruction

concerning the benefits Simmons received in

exchange for his cooperation with the government.

Because we find that the district judge ruled

appropriately, we affirm.

I

A. Simmons’s Testimony

 Not long after cooperating with the government

and testifying at Reed’s first trial, Simmons

pleaded guilty and was sentenced. Once in jail,

Simmons refused to continue cooperating with the

government and declined to testify at Reed’s

second trial. The district judge admitted

Simmons’s testimony from Reed’s first trial under

the hearsay exception provided at Federal Rule of

Evidence 804(b)(1)./1 Simmons’s prior testimony

was read by a government agent and Reed maintains

that this lent Simmons’s testimony more

credibility than it was due. Now Reed argues that

even though the government made no attempt to

compel Simmons’s presence, the trial judge found

Simmons unavailable and admitted his testimony

from Reed’s first trial. We review the district

judge’s ruling on the admission of prior

testimony for an abuse of discretion. United

States v. Curry, 79 F.3d 1489, 1494 (7th Cir.

1996)./2 

 Under Rule 804(b)(1), once a declarant has been

deemed unavailable, his former testimony may be

admitted into evidence, as long as the party

against whom the testimony is admitted had an

opportunity and a similar motive to develop the

testimony. According to Reed, Simmons was not

really "unavailable" because the government

procured Simmons’s unavailability and that

neither the government nor the court made any

attempt to actually compel Simmons’s testimony at

the second trial. Specifically, Reed theorizes

that the government purposely worked to ensure

that Simmons would be sentenced before Reed’s

second trial so that it would lose any leverage

it had to compel Simmons’s continued cooperation.

A review of the facts and the law suggests that

the district judge’s decision to admit Simmons’s

prior testimony was proper. 

 First, Simmons was unavailable. The definition

of "unavailability" is provided in Federal Rule

of Evidence 804(a)(1), which states that a

declarant is unavailable if the declarant

"persists in refusing to testify concerning the

subject matter of the declarant’s statement

despite an order of the court to do so." However,

Reed suggests that the government somehow
procured Simmons’s unavailability. "A declarant

is not unavailable as a witness if exemption,

refusal, claim of lack of memory, inability, or

absence is due to the procurement or wrongdoing

of the proponent of a statement for the purpose

of preventing the witness from attending or

testifying." Fed. R. Evid. 804. 

 The government bears the responsibility of

proving that Simmons was unavailable. See Burns

v. Clusen, 798 F.2d 931, 937 (7th Cir. 1986). "If

there is a possibility, albeit remote, that

affirmative measures might produce the declarant,

the obligation of good faith may demand their

effectuation." Id. (quoting Ohio v. Roberts, 448

U.S. 56, 74 (1980)). However, we have recognized

that under Rule 804(a)(1) a testimonial

privilege, such as the privilege against selfincrimination, is an independent ground of

unavailability. See United States v. Kehm, 799

F.2d 354, 361 (7th Cir. 1986). Therefore, the

rule is not that the government must do

everything it can to get a witness to testify,

only that it make a reasonable, good faith effort

to get the witness into court. Furthermore, "’the

lengths to which the prosecution must go to

produce a witness . . . is a question of reasonableness.’"

Roberts, 448 U.S. at 74 (citing California v.

Green, 399 U.S. 149, 189 & n.22 (1970)). "The

ultimate question is whether the witness is

unavailable despite good-faith efforts undertaken

prior to trial to locate and present that

witness." Id. 

 There is nothing in the record to suggest that

the government acted in bad faith or sought to

procure Simmons’s unavailability. In fact, from

the record, it appears that the government made

a good faith effort to get Simmons to testify.

The government located Simmons, brought him to

court, and asked him to testify at the second

trial. Simmons was called to the stand to

testify, but he refused to do so. Even though the

government offered him additional credit toward

his sentence to re-testify, Simmons stood firm in

his refusal. Reed argues that the government

should have either prevented Simmons from being

sentenced before Reed’s second trial or

threatened to move the court to set aside

Simmons’s plea agreement. Neither Rule 804 nor

reasonableness required the government to

exercise either one of these options. 

 Additionally, the district judge, not the

government, retained control over the date and

time of Simmons’s sentencing. And while the

government could have found Simmons in violation

of his plea agreement, it is not clear what this

would have accomplished./3 Reed asks this court

to believe that if the government had threatened
Simmons with setting aside his plea agreement,

this would have compelled Simmons to cooperate.

This is pure speculation. Given that Simmons

refused to testify despite the court’s threatened

sanctions, which could have resulted in the

imposition of unknown penalties, it seems

unlikely that he would have succumbed to the

government’s threats. 

 The district judge attempted to compel Simmons’s

testimony as well. Simmons was already in jail,

and while a criminal contempt finding may not

have posed a very serious threat to him, it was

the court’s only option. The court warned Simmons

that if he refused to testify, he could be

subjected to civil and criminal contempt, for

which the penalty could include jail time./4

Simmons still refused to testify. Contrary to

what Reed thinks, neither the government nor the

court ultimately controlled Simmons’s situation.

Simmons made it clear that he would rather give

up the possibility of a reduced sentence, be held

in criminal contempt, and face the possibility of

additional jail time, than testify for the

government at Reed’s second trial. The only

weapons the government had available to it, in

its attempt to compel Simmons’s testimony, were

the threat of more jail time or the possibility

of less. It used one of those weapons and good

faith requires nothing more.

 Second, during the first trial Reed had ample

opportunity to cross-examine Simmons and to

impeach his credibility, and during the second

trial he had the same motive to examine Simmons

as he did during the first trial. Reed maintains

that he did not have a similar motive to develop

Simmons’s testimony during the second trial since

Simmons pled guilty and was sentenced between the

first and second trial. Before a court can admit

prior testimony under Rule 804(b)(1), it must

find that the adverse party has a similar motive

to develop the testimony by direct, cross, or

redirect examination as it did when the testimony

was originally given. Id. at 385. When

considering whether this requirement has been

met, courts look to the similarity of issues and

the purpose for which testimony was given. Id.

"Circumstances or factors which influence motive

to develop testimony include ’(1) the type of

proceeding in which the testimony [was] given,

(2) trial strategy, (3) the potential penalties

or financial stakes, and (4) the number of issues

and parties.’" Id. (citation omitted).

 At the first trial, (1) Simmons testified and

was cross-examined by Reed’s counsel; (2) Reed’s

principal strategy was to impeach Simmons’s

credibility and to establish Reed’s alibi; and

(3) Reed was being tried for bank robbery and was
subject to imprisonment. While the second trial

initially included charges against a third codefendant, the parties and issues remained

essentially the same as during the first trial.

The fact that Simmons was actually sentenced and

received a downward departure after the first

trial, does not really change Reed’s motives on

cross. Simmons had entered into the plea

agreement well before the first trial and Reed

knew that Simmons would be getting a substantial

reduction in his sentence in exchange for his

cooperation. He used this information to impeach

Simmons on cross-examination. In addition, at the

second trial, Reed admitted additional evidence

in an attempt to impeach Simmons’s testimony. As

such, we conclude that the district judge acted

reasonably in admitting Simmons’s testimony under

Rule 804(b)(1). 

 Having found that Simmons’s testimony was

properly admitted under Rule 804(b)(1), we need

only briefly address Reed’s Confrontation Clause

argument. Reed asserts that because Simmons did

not testify during the second trial, but the jury

heard Simmons’s testimony, Reed was denied his

Sixth Amendment right to be confronted with one

of the principal witnesses against him. The

Confrontation Clause operates to restrict the

range of admissible hearsay. "When a hearsay

declarant is not present for cross-examination at

trial, the Confrontation Clause normally requires

a showing that he is unavailable. Even then, his

statement is admissible only if it bears adequate

’indicia of reliability.’" Roberts, 448 U.S. at

66. 

 Confrontation Clause requirements are met when

the prosecution can show (1) necessity (or

unavailability of declarant) and (2) indicia of

reliability. See id. at 65. In essence, to be

lawful under the Confrontation Clause, the

admitted prior testimony must come from an

unavailable witness and be the type of hearsay

that is "marked with such trustworthiness that

’there is no material departure from the reason

of the general rule.’" Id. (citation omitted).

The government has shown that Simmons was

unavailable and since "reliability can be

inferred without more in a case where the

evidence falls within a firmly rooted hearsay

exception," the second requirement, reliability,

has been met as well. Id. at 66. Reed’s rights

under the Sixth Amendment Confrontation Clause

were not violated by the admission of Simmons’s

prior testimony. We therefore reject Reed’s

argument that the district judge wrongly admitted

Simmons’s testimony under either Rule 804(b)(1)

or the Confrontation Clause.

B. Reed’s Testimony
 During Reed’s second trial, the government was

permitted to read into evidence the entire

transcript of Reed’s testimony from the first

trial. Before we address the merits of Reed’s

challenge to the district judge’s decision to

admit this testimony, a review of the procedural

history relevant to this issue is in order. On

February 23, 1999, prior to the second trial, the

government submitted a motion in limine,

indicating that it wanted to introduce limited

portions of Reed’s testimony from the first

trial. Then, on June 4, 1999, the government

submitted a second motion in limine seeking to

preclude Reed (assuming he would not be

testifying) from offering any of his testimony

from the first trial under Federal Rule of

Evidence 801, which requires such testimony to be

offered by a party opponent. On the morning the

trial was to begin, the government withdrew its

February 23, 1999 motion, and the court granted

the June 4, 1999 motion. At trial and without

objection, the government introduced into

evidence a transcript of Reed’s entire testimony

from his first trial./5 

 Reed’s prior testimony was admitted as an

admission of a party opponent under Federal Rule

of Evidence 801(d) (2)(A), which provides that a

statement is not hearsay and may be admitted when

the statement in question is offered against a

party and is the party’s own statement. Reed now

makes two general arguments: (1) each of the

statements that the government sought to include

were not against his interest and (2) the

district judge erred when he failed to require

redaction of Reed’s testimony, so that only the

statements against Reed’s interest remained.

However, neither of these arguments were raised

on the record, at trial or during sentencing. As

such, on appeal, we review the district judge’s

decision to permit the reading of Reed’s entire

testimony for plain error only. See United States

v. McClellan, 165 F.3d 535, 552 (7th Cir. 1999).

 Reed’s first argument fails because, contrary to

Reed’s assertion, statements admitted under Rule

801(d)(2)(A) need not be inculpatory. See United

States v. McGee, 189 F.3d 626, 631-32 (7th Cir.

1999). While Reed acknowledges that admissions

need not be inculpatory, he argues that to be

admissible under Rule 801(d)(2)(A), an admission

must be contrary to the trial position of the

party. This is not the law and Reed has not

persuaded us that it should be. Id. Rule

801(d)(2)(A) merely renders a statement nonhearsay if it was made by the party against whom

it is offered. As we stated in McGee, the

statements need neither be incriminating,

inculpatory, against interest, nor otherwise
inherently damaging to the declarant’s case. Rule

801(d)(2)(A) simply admits those statements made

by one party, but offered as evidence by the

opposing party. Therefore, the mere fact that the

admitted testimony consisted of statements made

by Reed, but offered by the government in its

prosecution of him, makes Reed’s testimony

admissible under Rule 801(d)(2)(A). 

 Reed’s second argument concerning redaction is

equally unpersuasive. Reed suggests that because

not all of the statements contained in Reed’s

prior testimony were against his interest, the

court should have admitted only those portions of

testimony that were expressly inculpatory and

redacted all others. As explained above, Rule

801(d)(2)(A) does not require that any of the

statements admitted be inculpatory. The

government offered the entire transcript of

Reed’s testimony from the first trial against him

as part of its prosecution. Therefore, admission

of the entire transcript was proper under Rule

801(d)(2)(A), and redaction was not necessary.

Reed was not unduly prejudiced by the reading of

his former testimony, and the district judge did

not commit plain error. 

C. Jury Instruction on Simmons’s Cooperation

 Finally, Reed argues that the instruction given

to inform the jury that Simmons received a

sentence reduction in exchange for his testimony

against Reed was inadequate. The instruction the

district judge gave to the jury closely tracks

one of the Seventh Circuit Federal Criminal Jury

Instructions which generally informs the jury

that the witness has "received benefits from the

government in connection with this case, namely

______ [fill in blank to specify benefits

received]." 1 Federal Criminal Jury Instructions

of the Seventh Circuit sec.3.13 (West 1999). The

actual instruction presented to the jurors in

this case read: 

You have heard testimony from Frank Simmons, who:

(a) received immunity; that is, a promise from

the government that any testimony or other

information he provided would not be used against

him in a criminal case; (b) received benefits

from the government in connection with this case,

namely the promise that the government would

consider his cooperation and testimony in

determining whether or not to file a motion on

Mr. Simmons’s behalf to reduce sentence (motion

of downward departure); (c) stated that he was

involved in the commission of the offense as

charged against the defendant. . . . You may give

their testimony such weight as you feel it

deserves, keeping in mind that it must be

considered with great caution and great care.
According to Reed, this instruction did not tell

jurors enough about the extent of the sentence

reduction Simmons received after he testified in

Reed’s first trial. Ordinarily, we review a

district court’s decision concerning jury

instructions under the abuse of discretion

standard, see Stuart Park Assoc. Ltd. Partnership

v. Ameritech Pension Trust, 51 F.3d 1319, 1323

(7th Cir. 1995), but since Reed failed to object

to this instruction at trial, once again, we

review for plain error. See United States v.

Bardsley, 884 F.2d 1024, 1028 (7th Cir. 1989). 

 Before a district judge allows a jury

instruction, he or she must ensure that the

instruction (1) is a correct statement of the law

and (2) is supported by the evidence. See United

States v. Perez, 43 F.3d 1131, 1137 (7th Cir.

1994). The instruction at issue here is neither

incorrect under the law nor unsupported by the

evidence. The instruction is a statement of fact

designed to inform the jury of a witness’

potential bias and it was sufficiently detailed

to serve that purpose. To tell the jurors the

extent of the sentence reduction Simmons actually

received after testifying against Reed would

offer nothing more in the way of permitting the

jurors to consider Simmons’s motives at the time

he testified. 

 We find that the instruction was adequate. "We

give deference to the district court’s discretion

in determining the specific wording of the

instructions . . . . Reversal is necessary only

if the jury’s comprehension of the issues is so

misguided that it prejudiced the party raising

error, and the complaining party bears the burden

of showing prejudice." United States v. Smith,

131 F.3d 685, 688 (7th Cir. 1997) (citations

omitted). Reed had ample opportunity to attack

Simmons’s credibility and to establish his bias

on cross-examination, and the district judge gave

an instruction to highlight Simmons’s potential

motive to lie or to exaggerate his testimony.

Nothing more was needed.

II

 For all the reasons set forth above, we AFFIRM

the judgment of the district court.

/1 Federal Rule of Evidence 804(b)(1) reads,

The following are not excluded by the hearsay

rule if the declarant is unavailable as a

witness: (1) Former testimony. Testimony given as

a witness at another hearing of the same or a
different proceeding, or in a deposition taken in

compliance with law in the course of the same or

another proceeding, if the party against whom the

testimony is now offered, or, in a civil action

or proceeding, a predecessor in interest, had an

opportunity and similar motive to develop the

testimony by direct, cross, or redirect

examination. 

/2 The government maintains that the trial court’s

decision should be reviewed for plain error only

because Reed failed to preserve his theory that

the government procured Simmons’s unavailability

and failed to make a good faith effort to get

Simmons to testify. However, Reed did preserve

the issue. He objected to the court’s decision to

admit Simmons’s prior testimony. 

/3 Simmons’s plea agreement expressly required

Simmons to "testify truthfully and completely

before the grand jury and at any subsequent

trials, if asked to do so." 

/4 The government took pains to ensure that the

court made it clear, on the record, that Simmons

was being ordered to testify. "Just for the

record, the United States wanted to make clear to

Mr. Simmons that he is being ordered to testify

by the Court." Tr. at 103. 

/5 Actually, at the time the government announced

its intention to read into evidence Reed’s prior

testimony under Rule 801(d)(2), defense counsel

asked to be heard at side bar. Following the

side-bar conference, the district judge informed

the jury that he and the attorneys had been

discussing a particular rule of evidence and that

a new witness would be reading Reed’s testimony

from January 1999 into the record. The side-bar

conference was held off-the-record. Therefore, if

defense counsel did object, this court would have

no way of knowing.