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No. 95-2282
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George Scroggins, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, Director *
Arkansas Department *
of Corrections *
*
Appellee. *
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Submitted: January 8, 1996
Filed: March 6, 1996
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Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
ALSOP,* District Judge.
ALSOP, District Judge.
George Scroggins was convicted of possession of a controlled
substance with intent to deliver. His conviction was affirmed by
the Arkansas Supreme Court and subsequently he petitioned for
habeas corpus review pursuant to 28 U.S.C. § 2254. The petition
*The HONORABLE DONALD D. ALSOP, United States District
Judge for the District of Minnesota, sitting by
designation.
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presented 10 claims for relief. The district court1 denied the
petition deciding that some claims were barred on procedural
grounds and the others failed on their merits. Appellant now
appeals the district court’s decision on each of the claims. We
affirm.
I.
The relevant facts leading to Appellant’s arrest and
conviction of possession of a controlled substance with intent to
deliver begin with the arrest of David Cains on September 29,
1990, several hours before Appellant was arrested. After Cains’
arrest he agreed to cooperate with police officials and permit a
recording device to be attached to his phone. Several calls
between Cains and Appellant were recorded. One discussion
concerned the delivery of “motorcycle parts” which Cains later
testified to be a code word for methamphetamine. During the
conversation Appellant agreed to meet Cains at his home that
evening to deliver the “parts”. Police placed Cains’ house under
surveillance and equipped Cains with a body mike to record the
exchange between him and Appellant. Prior to Appellant’s arrival
Cains’ home was searched by police to ensure that no drugs were
present. After Appellant arrived, met with Cains, and departed
police again searched his home and found methamphetamine under
Cains’ pillow in his bedroom. Sometime afterwards Appellant was
stopped and arrested.
At a hearing on a motion to suppress statements taped during
phone conversations between Cains and Appellant, Cains testified
1
The Honorable Henry Jones, United States Magistrate Judge for
the Eastern District of Arkansas. The case was transferred to the
magistrate judge with the parties’ consent in accordance with 28
U.S.C. § 636(c).
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about events surrounding his meeting with Appellant the night of
September 29, 1990 as well as previous dealings with Appellant.
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He also answered questions from Appellant’s counsel during cross-
exam about the circumstances leading to Appellant’s arrest
including Cains’ prior record and his agreement to cooperate with
the police. After the hearing and before Appellant’s trial Cains
was murdered in an unrelated incident. Cains’ testimony was
offered and admitted into evidence in Appellant’s trial.
II.
Appellant’s principal claim is that the trial court erred in
admitting into evidence the transcript of the suppression hearing
due to the unavailability of Cains. Appellant contends that the
admission of the transcript from the suppression hearing violates
his Sixth Amendment right to confront witnesses against him. To
determine whether permitting the admission of an out of court
statement because of the declarant’s unavailability at trial
violates the Confrontation Clause the Supreme Court applied a two
part test in Ohio v. Roberts, 448 U.S. 56, 66 (1980). The first
part requires that the declarant be unavailable. The second
requires that the statement bear adequate “indicia of
reliability”. The Court held that “[r]eliability can be inferred
without more in a case where the evidence falls within a firmly
rooted hearsay exception.” Id.
The admission of the transcript with Cains’ testimony
satisfies these requirements. The parties do not dispute that the
declarant was unavailable. Appellant’s contention is that the
evidence violates the Confrontation Clause and the prior
testimony exception in A.R.E. 804(b)(1) because he did not have a
similar motive to develop the testimony at the suppression
hearing as he would have had at trial. We find Appellant’s cross-
examination was sufficient to ensure that the testimony bears the
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adequate indicia of reliability. As the district court noted,
while a hearing on the suppression of telephone recordings by its
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nature may have a more limited scope than a trial, the inquiry at
the suppression hearing in this case went beyond issues relevant
to the suppression of the recording. Appellant questioned Cains
about the events leading up to Appellant’s arrest as well as his
prior involvement with Appellant in legitimate business
transactions. His cross-examination also explored issues touching
on Cains’ credibility including prior bad acts and promises of
leniency.
Appellant claims that the testimony is not reliable because
he did not cross-examine Cains about information Appellant
discovered after the suppression hearing, as he would have done
at trial. Appellant cites no law showing that the Confrontation
Clause requires the cross-examination conducted in a prior
hearing to be the same as that conducted at trial. In Mancusi v.
Stubbs, 408 U.S. 204 (1971) the Supreme Court rejected this line
of reasoning and affirmed the admission of a transcript from a
previous trial where counsel had not made any showing of a new
and significantly material line of cross-examination that was not
at least touched upon in the first trial. Id. at 215. The
declarant in the present case was subject to extensive cross-
examination by counsel in the suppression hearing. The cross-
examination addressed the credibility issues Appellant claims
were raised by the later-discovered materials and Appellant does
not identify any new information in the discovery materials that
would have significantly altered his line of cross-examination.
Thus, the district court properly denied Appellant’s
Confrontation Clause claim.
We have carefully examined Appellant’s remaining claims and
agree with the well-reasoned analysis of the magistrate judge
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that they all fail on their merits or are procedurally barred.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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