### The HONORABLE JAMES M. BURNS, United States District Judge * 

### for the District of Oregon, sitting by designation. The Honorable Donald J. Stohr, District Judge for the 1 

### Eastern District of Missouri. ___________ No. 95-3029EA

___________ United States of America, * * Appellee, * v. * Appeal from the United States * District Court for the Eastern Kevin Jacobs, aka Maurice * District of Arkansas. Hawkins, * * Appellant. *

___________ Submitted: April 9, 1996 Filed: October 3, 1996

___________ Before BEAM and MURPHY, Circuit Judges, BURNS, District Judge. *

___________ BURNS, District Judge.
On April 7, 1995, a jury convicted Jacobs of conspiracy to commit ban k robbery in violation of 18 U.S.C. § 371 and armed bank robbery in violatio n of 18 U.S.C. § 2113. The district court sentenced Jacobs to 60 month s 1 imprisonm ent on the first count and 300 months on the second count, th e sentences to run concurrently and to be followed by a five-year term o f supervised release. Defendant was also ordered to pay restitution in the sum of $1,609.00.

Jacobs appeals h is conviction and seeks a new trial on the following grounds:

### 2 1. The di strict court erred when it instructed the jury b y reading an incorrect list of overt acts purportedly committed by defendant ; 2. The di strict court erred when it admitted defendant' s confession into evidence; and
3. Th e district court erred when it required defendant t o conduct over the tele phone a significant portion of his cross-examination of the government's main witness against him. For the reasons articulated below, we AFFIRM Jacobs's conviction.

JURY INSTRUCTIONS
Jacobs contends he was prejudiced when the district cour t misin structed the jury by reading an incorrect list of overt act s purportedly committed by defendant. Jacobs furt her asserts he should have been permitted to reopen his defense following the court's error.
After the district court instructed the jury, it discovered it s instructions included an incorrect list of overt acts that were drawn from one of the government's early drafts of the Indi ctment. The next morning, before closing arguments and the jury's deliberations began, the cour t informed the jury of its error and re-instructed the jury with the correct list of overt acts purportedly committed by Jacobs.
"[P]roperly obje cted to jury instructions" are reviewed for harmless error pursuant to Fed . R. Crim. P. 52(a). United States v. Ryan , 41 F.3d 361, 366 (8th Cir. 1994), cert. denied , 115 S.Ct. 1793 (1995). The test "for d etermining the adequacy of jury instructions is 'whether th e instr uctions, when taken as a whole, adequately advise the jury of th e essential elements of the offenses charged and the burden of proof require d of the government.'" United States v. Bishop , 825 F.2d 1278 (8th Cir. 1987 ) (quoting U nited States v. Sherer , 653 F.2d 334, 337 (8th Cir.), cert
. denied , 454 U.S. 1034 (1981)).

### 3 We are no t persuaded by Jacobs's arguments that the court's initial error prejudiced him or that the court's subsequent action failed to cure the error. We find the district court's error w as harmless "once remedial action was properly taken," United States v. Nabors , 762 F.2d 642, 648 (8t h Cir. 1985), particularly since the district court cured its error before counsel began their closing arguments and before the jury began it s deliberations.
Accordingly, we hold the district court's instructions, taken as a whole, adequately advised the jury of the essential elements of th e offenses charged and the burden of proof required of the government.

JACOBS'S CONFESSION

Jacobs a sserts the district court erred when it admitted hi s confession because his confession was involuntary and coerced. Jacobs als o contends his confessi on was inadmissible because during the interrogation he requested and was denied right to counsel in violation of the Sixt h Amendment.

Voluntariness of Jacobs's Confession

A district court's decision as to whether a defendant's confession wa s voluntary is reviewed de novo

. United States v. Kilgore , 58 F.3d 350, 353 (8th Cir. 1995)(citing United States v. Johnson , 47 F.3d 272, 275 (8th Cir

. 1995)).
The test for determining the voluntariness of a confession is "whethe r the confession was extracted by threats, violence, or direct or implie d promises" to such a degree that defendant's will was overborne, Unite d States v. Kilgore , 58 F.3d at 353, and "'his capacity of self-determinatio n critically impaired.' " Sumpter v. Nix , 863 F.2d 563, 565 (8th Cir. 1988) (quoting Culombe v. Connecticut , 367 U.S. 568 (1961)). The court mus t "inquire into

### During the suppression hearing, the district court had 2 

### access to the unredacted tape of the interview with the Los Angeles police. A redacted tape containing only Jacobs's confession and a transcript of that portion of the tape were later admitted into evidence during trial.
4 the t otality of the circumstances in assessing the conduct of la w enforc ement officials and the suspect's capacity to resist any o f pressure." United St ates v. Kilgore , 58 F.3d at 353 (citations omitted).

The record reflects Jacobs was interrogated for approximately tw o hours by the Los Angeles police regarding his possible involvement in a murder that took place in California. Following that interrogation, he wa s interviewed by a special agent for the FBI. Dur ing the interview with the Los Angeles police, Jacobs said he was out of state at the time of th e murder and, as part of his alibi, he stated that he committed armed bank robbery in Arkansas around the time of the murde r. In his later interview with the FBI agent, Jacobs reiterated that he was in Arkansas robbing a bank around the time of the murder and also identified himself as one of the bank robbers in the bank surveillance photographs taken during th e rob bery. Jacobs now contends he confessed to the bank robbery an d identified himself in the bank surveillance phot ographs only after the Los Angeles police "threatened" him by referring to the possibility that the murderer might be subject to the death penalty.
After hearing the testimony of the LAPD off icer and the FBI agent who interviewed Jacobs, a nd after listening to the tape of the interview with the Los An geles police, the district court concluded Jacobs's confession 2 was voluntary. We agree.
On the interview tape, Jacobs first brings up his participation in th e Arkansas bank robbery on his own initiative long before the officers make any oblique references to the

### Jacobs does not contend he requested an attorney during his 3 

### interview with the FBI agent.
5 possibility that the person who committed the murder might be subject to the death penalty. L ater in the interview, Jacobs voluntarily elaborates on his involvement in the bank robbery as a crucial part of his alibi.
After reviewing the record and listening to the interview tape, w e find the totality of the circumstances does not demonstrate that Jacobs's will w as overborne or that his capacity for self-determination wa s critically impaired. We hold, therefore, the district court did not err when it concluded Jacobs's confession was voluntary.
Admissibility of Jacobs's Confession

Jac obs also asserts he was denied his right to an attorney i n violation of the Sixth Amendment even though he asked for one near the end of his interrogation by the LAPD and, therefore, his confessio n should not 3 have been admitted as evidence.
A district court's decision to admit or to suppress a defendant' s confession is reviewed under a clearly erroneous standard. United States v. Meirovitz , 918 F.2 d 1376, 1379 (8th Cir. 1990), cert. denied , 502 U.S. 829 (1991). We must affirm the district court's decision to admi t defendant's confession unless its decision was "'unsupported by substantia l evidence, based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and definit e conviction'" that the district court made a mistake. Id . (quoting United States v. Jorgensen , 871 F.2d 725, 728 (8th Cir. 1989)).
At the beginning of the taped interview with the Los Angeles police, Jacobs was advised of and orally waived his Miranda rights.

### 6

Jac obs was then interviewed by an FBI agent, was again advised of hi s Miranda rights, and waived his rights both orally and in writing.
During his interview with the Los Angeles police, Jacobs said he woul d want a lawyer in the event he had to take a polygraph test. Jacobs did no t request a lawyer at any other time. The district court found Jacobs' s request for an attorney was limited to the speci fic circumstance of taking a polygraph test. Jacobs did not take a polygra ph test; therefore, Jacobs was not denied his constitutional right to counsel.

After l istening to the tape and reviewing the transcript of tha t portion of the tape, we agree with the district court; therefore, we find the statements made by Jacobs before and after h is request were admissible

as ev idence. See Connecticut v. Barrett , 479 U.S. 523, 529 (1987 ) (defendant expressed a desire for the presence of counsel only in the even t he had to make a written statement and, therefore, all of defendant' s statements unconnected to making a written statement were admissible). Se e also U nited States v. Boyer , 914 F.2d 144, 146 (8th Cir. 1990) ("[A ] li mited invocation of the right to counsel does not preclude th e admiss ibility of statements a defendant makes which fall outside th e limited invocation."), cert. denied , 499 U.S. 908 (1991).
In summary, we find nothing in the record to indicate the distric t court erred when it c oncluded Jacobs's confession was voluntary. We also find t he district court's decision to admit Jacobs's confession wa s supported by substantial evidence and based on a correct interpretation of the appli cable law. We hold, therefore, the district court did not er r when it admitted Jacobs's confession as evidence.

### Jacobs invokes both Fed. R. Crim. P. 26, which provides 4 

### "the testimony of witnesses shall be taken orally in open court" in all trials, and the Confrontation Clause of the Sixth Amendment, which provides "the accused shall enjoy the right . . . to be confronted with the witnesses against him"; however, we find resolution of the constitutional question is sufficient to lay this issue to rest. At a later time during the trial, defense counsel rejected 5 

### the court's offer.
7 RIGHT OF CONFRONTATION

Jacobs also contends the district court err ed when it required him to conduc t by telephone a significant portion of his cross-examination o f Kimberly Johnson, the government's main witness against him, in violation of his rights under the Confrontation Clause of the Sixth Amendment. 4

Background

When Johnson was called as a witness at Jacobs's trial, she wa s pregnant and close to her delivery date. Her condition was such that she

was too large to sit in the witness box in the usual manner and had to tur n away from the jury. During cross-examination by Jacobs's counsel, th e court called a recess to give Johnson a break. Although she indicated she wanted to finish test ifying despite her discomfort, the court excused her temporarily and requested an ambulance. Johnson did not return to court after the noon recess . After the district judge excused the jury for the day, he advised counsel to consider what they would do if Johnson wer e unable to return to court. The court also informed defense counsel they would be permitted to read into the record portions of Johnson's pretrial testim ony from the suppression hearing in place of cross-examination i f Johnson were unable to return to the stand. 5

The following day Johnson's doctor informed the court that

### We do not have an accurate log of the time Jacobs spent 6 

### cross-examining Johnson; however, the court reporter's notes and the record reflect Jacobs's cross-examination of Johnson in opencourt filled approximately 13 transcribed pages and his crossexamination of Johnson by telephone consisted of approximately 20 transcribed pages.
8 Johnson would have to stay in the hospital for at least two more days and that she might be unavailable to testify during the following week

. Jacobs's attorney asserted his cross-examination of Johnson was critical to Jacobs's defense because Johnson was the government's primary witness against Jacobs. Defense counsel pointed out he had not reached the crux of his cross-examination when the cou rt excused Johnson. Defense counsel 6 also vigorously argued it was crucial for the ju ry to have the opportunity to observe Johnson's demeanor during cross-examination in order to properl y evaluate her credibil ity, particularly in light of her prior inconsistent stat ements and the fact that Johnson's testimony was the core of th e government's case against Jacobs. Jacobs's counsel requested a continuanc e until at least the following week. In spite of counsel's objections and request for a continuance, the court ruled Johns on would be cross-examined by telephone if she were still unavailable that afternoon.

When court reconvened, the remainder of Jac obs's cross-examination of Johnson was conducted over the telephone. Johns on was on the telephone in the hos pital with her lawyer present; the trial judge, defendant, an d counsel w ere in the judge's chambers; and the jurors were seated in th e jury b ox listening to Johnson's testimony through speakers in th e courtroom.

The Law

The C onfrontation Clause of the Sixth Amendment "guarantees th e defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa , 487 U.S. 1012, 1016

### 9

(1988). The basic purpose of the Confrontation Clause is "to ensure th e reliability of the ev idence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact," Maryland v. Craig , 497 U.S. 836, 845 (1990), and by giving defend ant the "opportunity, not only of testing the recollection an d sifting the conscience of the witness, but of co mpelling him to stand face to face with the jury in order that they may loo k at him, and judge by his demeanor upon the stand and the manner in which he gives his testimon y whether he is worthy of belief." Mattox v. United States , 156 U.S. 237, 242-43 (1895). Face- to-face confrontation ensures "'the integrity of the fact-finding process.'" Coy v. Iowa , 487 U.S. a t 1020 (citing Kentucky v. Stincer , 482 U.S. 730, 736 (1987)).

Alt hough the Confrontation Clause embraces the principle that th e physical presence of witnesses in a criminal tri al and the opportunity for the fact-finder to observe the demeanor of witnesses are elements tha t ensure the reliability of evidence admitted agai nst an accused, the Clause does n ot guarantee "criminal defendants the absolute right to a face-t o-face meeting with witnesses against them at trial." Maryland v

. Craig , 497 U.S. at 84 4, 846. The preference established by precedent for face-to -face confrontation at trial, Ohio v. Roberts , 448 U.S. 56, 6 3 (1980), has occasionally given way. Maryland v. Craig , 497 U.S. at 849-50

. Speci fically, the Supreme Court has carved out a narrow exception to a criminal defendant's right to face-to-face confrontation when (1) "denial of such confrontation is necessary to further an important public policy" and ( 2) the necessities of the case require same. Id . at 850. See als o United States v. Benfield , 593 F.2d 815, 821 (8th Cir. 1979) (exceptions to the Co nfrontation Clause "should be narrow in scope and based o n necessity or waiver"). The trial court is required to identify th e important state interest and to hear evidence to determine the necessities of the specific case before abridging a defendant's right to confrontation

. Maryland v. Craig , 497 U.S. at 855-58.

### 10

Discussion

1. Public Policy

The district court did not identify any state interests tha t comp elled it to go forward with the cross-examination of Johnson vi a telephone. The court may have been concerned about the efficient use of court resources and/or defendant's rights under the Speedy Trial Act ; however, we can only speculate in the absence of the court's identificatio n of s ame. Mere speculation is insufficient to justify abridgement o f defendant's constitutional right to confront his accuser face-to-face in the jury's presence.

2. Necessities of the Case

A de fendant's rights under the Confrontation Clause may b e abrid ged if a witness is truly unavailable. See e.g. , United States v
. Kelly , 892 F.2d 255, 261 (3d Cir. 1989) (videota ped depositions of foreign witness taken without defendant's presence admissible because witness was unavail able to testify at trial), cert. denied , 497 U.S. 1006 (1990) ; United States v. Mueller , 74 F.3d 1152, 1156-57 (11th Cir

. 1996)(depositions of foreign witness admissible because the witness wa s unavailable to testify at trial).

When a witness is unavailable due to illness, the T hird, Fifth, and Sixth Circuits have concluded the district court must determine th e necessities of the specific case by weighing "th e importance of the absent witness for the case; the nature and extent of the cross-examination . .

. ; the nature of the illness; the expected time of recovery; th e reliability of the evidence of the probable duration of the illness; and any special circumstances counselling against delay." United States v

. Fai son , 679 F. 2d 292, 297 (3d Cir. 1982). See also Ecker v. Scott , 6 9 F.3d 69, 72 (5th Cir. 1995) (the court should "engage in a multifactored analysis"

### The jury had the opportunity to observe Johnson's demeanor 7 

### during direct examination by the government, cross-examination by one codefendant, and the partial cross-examination by Jacobs before Johnson was excused.
11 that considers the Faison factors); Stoner v. Sowders , 997 F.2d 209, 212 (6th Cir. 1993) ("When the question is one of the health of the witness, there must be 'the requisite finding of necessity' which is 'case specific ' in order to dispense with confrontation in open court.") (quoting Maryland

v. Craig , 497 U.S. at 855). We find the approach of our sister circuits worthy of emulation.
Among other things, the district court should have made specific inquiry into the severity and duration of Johnso n's "poor health." Stoner

v. Sowders , 997 F.2d at 212. The district court did not make the requisit e finding that Johnson was sufficiently unavailable to trigger an exception to the Confrontation Clause; i.e., Johnson "was not dead, beyond the reach of process nor perman ently incapacitated." Ecker v. Scott , 69 F.3d at 71. Johnson was, in fact, only temporarily unavailable for cross-examination becau se of her medical condition. Nothing in the record indicates sh e would ha ve been unlikely to recover in a short time or would have bee n unable to appear in open court within a reasonable time.

Jo hnson was the government's primary witness against Jacobs

. Although the jury had the opportunity to observe Johnson's demeanor before she was ex cused, a significant portion of Jacobs's cross-examination did 7 not take place in the presence of the jury. In fact, counsel, defendant, and jurors were all denied the opportunity to observe the facial an d physical expressions that accompanied Johnson's responses to the greater part of Jacobs's cross-examination. As we have noted before, "in som e
un defined but real way recollection, veracity, and communication ar e influenced

### In Murphy v. Tivoli , we held that telephone testimony does 8 

### not qualify as testimony taken in "open court" even though we acknowledged that a party may read into the record a witness's deposition taken by telephone if that witness was truly unavailable to testify at trial. 953 F.2d 354, 359 (8th Cir. 1992).
12 by face-to-face challenge." United States v. Benfield , 593 F.2d at 821. Jacobs was deprived of this critical face-to-face challenge in the presenc e of the jury.

Jacob s's right to have the jury evaluate Johnson's demeano r during cross-examination was an important protected interest. Mattox v. United States , 156 U.S. 237, 242-43 (1895). Although Jacobs's arguments might wield less powe r if the jurors, defendant, and defense counsel were able to view by video monitor the witness's demeanor and "body language" tha t accompanied her responses, we are reluctant to tolerate even thes e technological variations on "face-to-face" confrontation except whe n necessity or waiver have been demonstrated. See e.g. , United States v

. Benfield , 593 F.2d at 821; Lam v. Iowa , 860 F.2d 873, 874 (8th Cir. 1988) (admission of videotape of witness's deposition insufficient to overcome constit utional violation of defendant's right to confront his accuse r fac e-to-face in the presence of the jury because the witness's presenc e could have been obtained), cert. denied , 490 U.S. 1069 (1989).

In conclusion, the circumstances of th is case do not persuade us we should endorse cross-examination via telephone either generally or in 8 this particular criminal case. We hold, therefore, the district cour t erred when it substituted cross-examination via telephone for in-perso n cross-examination in open court without identifying the important stat e intere sts and hearing evidence to determine the specific necessities o f this case that justified abridgement of Jacobs's constitutional right to confront his accuser face to face.

### Although the government did not raise the issue of harmless 9 

### error, we may undertake such analysis sua sponte when we think "the finding of harmlessness is beyond reasonable argument" and our review of the straightforward record "will prevent an expensive and futile remand." Lufkins v. Leapley , 965 F.2d 1477, 1481-82 (8th Cir.), cert. denied , 506 U.S. 895 (1992).
13 Harmless Error Analysis

All errors of co nstitutional dimension do not automatically call for
revers al. Chapman v. California , 386 U.S. 18, 23 (1967). We revie w Confront ation Clause errors under the Chapman harmless- error rule. Co y 9

v. Iowa , 487 U.S. at 1021. See also United States v. Simmons , 964 F.2d 763 , 770 (8th Cir.), cert. denied , 506 U.S. 1011 (1992).

To hold a federal constitutional error harm less, we must declare "the
error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall , 47 5 U.S. 673, 684 (1986). See also Lufkins v. Leapley , 965 F.2d 1477, 1481 (8t h Cir.), cert. denied , 506 U.S. 895 (1992). Whether the error was harmless beyon d a reasonable doubt "must . . . be determined on the basis of th e remain ing evidence" rather than whether the jury's assessment or th e witness's testimony would have changed in the absence of the error. Coy v. Iowa , 487 U.S. at 1021-22.
During his interviews with the LAPD and the FBI in California, Jacobs confessed to the bank robbery in Arkansas. Jaco bs also identified himself in the bank surveillance photograph during his interview with the FB I agent. This Circuit has consistently followed Wong Sun v. United States , 371 U.S. 471, 489 (1963), in which the Supreme C ourt held "the guilt of an accused may stand on nothing more than the defendant's . . . uncorroborate d confession" if the state "has established injury to person or propert y caused by the crimina l acts of some person." Lufkins v. Leapley , 965 F.2d at 1482 (citing United States v. Opdahl , 610 F.2d 490, 493 (8th

### 14

Cir. 1979 ), cert. denied , 444 U.S. 1091 (1980)). In this instance , however, Jacobs's conviction stands on much more than his confession.
Johnson was an important witness for the go vernment. In the presence of the jury during direct examination, cross-exa mination by one defendant, and the part of Jacobs's cross-examination conducted in open court, Johnso n essentially corroborated several material elemen ts of Jacobs's confession: She was the friend Jacobs said he knew in Arkansas before the bank robbery ; she was the friend Jacobs said he was staying wi th in Arkansas at the time of the ban k robbery; and she was the woman Jacobs referred to in hi s confession who was ar rested with the stolen money in the trunk of the car she was driving. Johnson also readily identified Jacobs as one of th e robbers in the bank surveillance photograph.

In his cross-examination of Johnson in open court, Jacobs primarily attacked Johnson's cr edibility by pinpointing inconsistencies between her test imony and earlier statements she made to police. The portion o f cross-examination conducted by telephone was cumulative in that i t consisted of more of the same; i.e., Jacobs's cross-examination over the telephone was essentially a continuation of Jacobs's challenge to Johnson' s credibility and centered on showing inconsistenc ies between the statements Johnson made before and during trial relating to details about the sequenc e of events leading up to and following the bank r obbery. None of Johnson's testimony, either in court or via telephone, con tradicted or cast doubt on the material elements of Jacobs's confession.

In the absence o f any of Johnson's testimony, the remaining evidence was still more than "minimally sufficient" to su pport Jacobs's conviction. Lam v. Iowa , 860 F.2d at 876. One of the Los Angeles police officers and the FB I agent, who each conducted separate interviews with Jacobs , testified to the fact that Jacobs voluntarily confessed and that he offere d his confession as part of

### 15

his alibi for the mur der in California. The jury heard the redacted tape and read the transcri pt of Jacobs's confession. A defendant's confession "has an extraordinary impact on a finder of fact ." Lufkins v. Leapley , 965 F-2d at 1482-83 (citing generally Arizona v. Fulminante , 499 U.S. 28 5 (1991)). "[W]hen a d efendant admits a crime, the jury will be tempted to rest its decision on that evidence alone." Id . The jury in this case , however, had more than Jacobs's confession. The testimony of the FBI agen t also established that Jacobs identified himself in the bank surveillance photograph during his interview with the agent. Two employees of the bank present at the time of the robbery also identifi ed Jacobs in open court as one of the bank robbers.

Af ter reviewing the record as a whole, we are convinced beyond a reasonable doubt the violation of Jacobs's rights under the Confrontation Clause was harmless error.

CONCLUSION
Based on the foregoing, we AFFIRM Jacobs's conviction.

A true copy.

Attest:

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