02-2808 U.S. v. Hite

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“We hold that the district court did not abuse its discretion in finding that Hite had failed to pursue reasonable means to determine Bickers’ unavailability. The record shows that the ‘search’ for Bickers did not begin until four months before the trial began, in December of 2001. The record also reveals that, before that time, Bickers was in and out of the court system in Coles County on numerous occasions between February and July of 2001. However, an attempt was never made to contact Coles County law enforcement, ask for their assistance in the issuance of compulsory process, or otherwise secure Bickers’ testimony at trial. Indeed, the only attempt made to locate Bickers was made by the defense’s investigator, Donald Espinoza, who testified that ‘I’ve talked to family members . . . [but] that’s about as far as I’ve gone.’ We hold that it was not an abuse of discretion for the district court to conclude that Hite had not made a reasonable effort to secure Bickers’ testimony because ‘[b]oth the [C]onstitution and Rule 804 strongly favor live testimony.’ Kehm, 799 F.2d at 360-61.

“As the district court noted, the only corroborating evidence establishing the trustworthiness of Bickers’ statement is testimony by William D. Hite, the defendants’s father, and Eddie Kemper, Jr., the defendant’s cousin, indicating Bickers merely showed them the firearms in question. However, ATF Agent Fritzsche refuted this evidence when he testified that Bickers’ mother told him that Bickers denied owning the firearms. In addition, the Motion for Return of Items signed by Bickers did not list the illegal firearms Hite was charged with possessing, thereby refuting any alleged prior claim of ownership, leaving one to question whether he was the lawful owner of the firearms. Therefore, because the available evidence is contrary to Bickers’ alleged hearsay statement, we conclude the district court did not err when it determined that Bickers’ alleged statement lacked trustworthiness.”

Affirmed.

Appeal from the United States District Court for the Central District of Illinois, McCuskey, J., Coffey, J.