REVISED, January 24, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 99-30594
_________________________
KENNETH WAYNE MAGOUIRK,
Petitioner-Appellant,
v.
WARDEN, WINN CORRECTIONAL CENTER
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
January 15, 2001
Before KING, Chief Judge, WIENER, and CUDAHY,* Circuit Judges.
CUDAHY, Circuit Judge:
On July 31, 1986, a Ouachita Parish, Louisiana grand jury
indicted Petitioner Kenneth Magouirk for the first degree murder
of Katherine Thomas. In October 1986, the government amended the
indictment to charge Magouirk with second degree murder. At
Magouirk’s first trial, in 1987, the jury was also instructed on
lesser included offenses. The jury found Magouirk guilty of
*
Circuit Judge of the United States Court of Appeals for
the Seventh Circuit, sitting by designation.
1
manslaughter, and in September 1987 Magouirk was sentenced to
serve 21 years at hard labor. In October 1995, he filed a
petition for habeas relief under 28 U.S.C. § 2254 in the Western
District of Louisiana, challenging his conviction. This petition
was denied, and he appeals.
This case arises out of events that occurred on the evening
of Good Friday, 1986. Katherine Thomas was abducted from her
home, killed and thrown into the Ouachita River. See State v.
Magouirk, 539 So.2d 50, 52-54 (La.Ct.App. 1989) (describing
offense). Police received a tip that Magouirk had a fetish for
women’s underwear, and that he had some of Thomas’ underwear in
his possession. See id. at 53. Near the spot where Magouirk was
arrested, police found a bag of women’s clothing, which included
items that belonged to Thomas. See id. at 54, 59-60.
About one year prior to trial, Magouirk confessed to his
jail cellmate, Alfred Durbyn, that he was responsible for Thomas’
murder. Durbyn reported the confession, and his lawyer arranged
for him to make a recorded statement to the sheriff. Durbyn’s
statement related that Magouirk told Durbyn that he had taken
Thomas from her home, forced her to perform oral sex, and then
killed her. Durbyn’s statement also asserted that Magouirk
threatened to kill him if he revealed Magouirk’s confession.
Magouirk later moved to suppress this statement.
In October 1986, the trial court held a hearing on
Magouirk’s motion to perpetuate testimony. Magouirk called
2
Durbyn, who repeated the details of Magouirk’s confession.
Magouirk’s counsel claimed surprise and requested permission to
treat Durbyn as a hostile witness. The state argued that there
was no surprise because the content of Durbyn’s testimony had
been disclosed in discovery. The court denied Magouirk’s request
to treat Durbyn as a hostile witness.
Magouirk’s trial was scheduled to begin on June 15, 1987.
In early June, Magouirk and Durbyn engaged in a brief
altercation. As Durbyn was being transferred from the jail to
testify, he informed the district attorney’s investigator that he
had decided not to testify. When he took the stand, he testified
that his earlier statements at the hearing to perpetuate
testimony were not true; he then asserted his Fifth Amendment
rights and refused to testify further. The trial court informed
him that the Fifth Amendment did not protect him in this
situation, ordered him to testify, and ultimately held him in
contempt.
The government then moved to have Durbyn declared
“unavailable” so that his testimony at the perpetuation hearing
could be introduced. Magouirk objected, arguing that he had no
opportunity to cross-examine Durbyn in the earlier hearing, and
that admission of the testimony would violate his Sixth Amendment
right to confront and cross-examine witnesses. The court allowed
Durbyn’s prior recorded testimony to be played for the jury.
Magouirk attempted to call Durbyn as a hostile witness later in
3
the trial, but the trial court refused. Magouirk was convicted
of manslaughter.
He appealed, and the Louisiana Court of Appeal for the
Second Circuit found that the admission of Durbyn’s prior
testimony violated Magouirk’s Confrontation Clause rights, and
remanded the case for a new trial. On a petition for rehearing,
the state argued for the first time that Magouirk had waived his
right to confrontation through his own misconduct. The Court of
Appeal remanded the case for a hearing on the issue whether the
government knew or should have known of the facts that gave rise
to Durbyn’s refusal to testify, and, if not, whether Magouirk’s
alleged misconduct constituted a waiver. The trial court found
that Magouirk had waived his right to cross-examine the witness.
The Court of Appeal then affirmed the conviction and sentence.
Years later, Magouirk filed a petition for a writ of habeas
corpus, which was denied. On June 18, 1998, we affirmed in part,
vacated in part and remanded the habeas case on the issues: 1)
whether the state waived its right to argue that Magouirk waived
his Confrontation Clause rights; 2) whether Magouirk waived his
Confrontation Clause rights; and 3) whether there was
insufficient evidence to convict Magouirk of manslaughter.
Magouirk v. Phillips, 144 F.3d 348 (5th Cir. 1998). On remand,
the district court again denied the petition on the basis of a
magistrate judge’s report and recommendation. The magistrate
4
judge found that the state had not waived its right to claim that
Magouirk waived his confrontation rights; that there was a
preponderance of evidence that Magouirk waived his confrontation
rights by intimidating Durbyn; and that there was sufficient
evidence to convict.
Magouirk filed a notice of appeal and a motion requesting a
certificate of appealability, and the district court denied the
certificate of appealability. This court granted Magouirk a
certificate of probable cause in November 1999.1
In this appeal, Magouirk raises three claims: 1) that the
State waived its right to argue that Magouirk had forfeited his
Confrontation Clause rights; 2) that the district court erred in
finding that the state had proven that Magouirk waived his
Confrontation Clause rights; and 3) that the district court erred
in finding that there was sufficient evidence to support
Magouirk’s conviction.
Because Magouirk filed his petition prior to the enactment
of the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
the standards of review to be applied are those that existed
prior to the enactment of the statute. Under pre-AEDPA law, 28
U.S.C. § 2254(d) required federal courts in habeas corpus
1
A certificate of probable cause, rather than a certificate
of appealability, was warranted in this case because that is what
is required for § 2254 petitions filed before April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty
Act. See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir.
1997).
5
proceedings to accord a presumption of correctness to state court
findings of fact, while state court determinations of law were to
be reviewed de novo. See Johnson v. Puckett, 176 F.3d 809, 813
(5th Cir. 1999).
I.
Magouirk first argues that the prosecution waived its right
to argue that he forfeited his Confrontation Clause rights
because the prosecution did not lay a proper foundation to show
waiver at trial. As we discuss below, in order to have Durbyn’s
testimony admitted at trial, the government had to show 1) that
Durbyn was unavailable and 2) that his testimony bears adequate
indicia of reliability. Magouirk argues that the only reason the
prosecution failed to do this at trial is that the prosecutor did
not know that the right to confrontation could be waived by
misconduct. As we noted in deciding Magouirk’s first appeal to
this court, “[w]hether Magouirk waived his right to confront
Durbyn is a federal question of constitutional dimension.
Whether the state waived its right to raise Magouirk’s waiver by
failing to assert the argument at trial is a matter of state
law.” Magouirk v. Phillips, 144 F.3d at 362 n.4. Magouirk has
identified no constitutional or federal authority to support his
argument that the prosecution waived its right to claim that
Magouirk waived confrontation in the habeas proceeding. Thus,
when the Louisiana Court of Appeal held that the prosecution had
6
not waived this right, that was the final word on the matter.
The Louisiana Court of Appeal affirmed the trial court
determination that the prosecution did not know of Magouirk’s
intimidation of Durbyn at the time of trial, and therefore did
not waive its right to argue that Magouirk had waived his
confrontation right. Thus, the court held that the state, “by
failing to present evidence of [Magouirk’s] misconduct at trial,
did not waive its right to later assert the defendant’s
misconduct.” State v. Magouirk, 561 So.2d 801, 805 (La. Ct. App.
1990). Because there was no showing that these events violated
Magouirk’s constitutional rights, this state court decision will
stand.
II.
It is clear to us that Magouirk’s Confrontation Clause
rights were violated. The Sixth Amendment to the United States
Constitution provides in part that “in all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” The Louisiana Court of Appeal
unequivocally found that the opportunity to cross-examine Durbyn
was thwarted: “The record reveals that every attempt by defense
counsel to cross-examine Mr. Durbyn was thwarted by the
prosecution’s objections which were sustained by the trial
court.” State v. Magouirk, 539 So.2d 50, 57 (La. Ct. App. 1988).
This finding is entitled to a presumption of correctness. See 28
7
U.S.C. § 2254(d).
Durbyn’s testimony could have been admissible if it fell
within a firmly rooted hearsay exception. This is because such
statements “are so trustworthy that adversarial testing would add
little to their reliability.” Idaho v. Wright, 497 U.S. 805, 821
(1990). The only possible such exception here would be the prior
testimony exception, Rule 804(b)(1). This exception is only
applicable, however, if the defendant “had an opportunity ... to
develop the testimony by direct, cross, or redirect examination.”
Fed. R. Evid. 804(b)(1). Thus, the determination that Durbyn was
not effectively cross-examined at the preliminary hearing denies
the availability of this exception. This court would have to
find, contrary to the state court, that there had been an
adequate opportunity to cross-examine Durbyn to hold that his
testimony was admissible absent a waiver.
In cases in which the prior testimony of a now-unavailable
witness has been deemed admissible, the defendant has usually had
the opportunity to cross-examine the witness at the previous
hearing. For example, in Ohio v. Roberts, the Supreme Court
concluded that defense counsel had had the opportunity to conduct
“the equivalent of significant cross-examination” at a
preliminary examination. 448 U.S. 56, 70-71 (1980). And in
Mechler v. Procunier, this court found the prior testimony of an
unavailable witness to be admissible; the preliminary hearing
cross-examination of the witness “was neither de minimis nor
8
ineffective.” 754 F.2d 1294, 1297-98 (5th Cir. 1985). We
expressly declined to decide whether ineffective or minimal
examination of the witness would bar admission of that witness’
testimony at trial, and we decline to do so here, because
Magouirk was unable to conduct any cross-examination of Durbyn.
Because we find that Magouirk’s confrontation rights were
thwarted because of a lack of a meaningful opportunity to cross-
examine, Durbyn’s statement would have been inadmissible absent a
waiver.
Another issue impacts on whether a defendant’s confrontation
rights have been violated: whether the declarant’s truthfulness
is clear from surrounding circumstances or additional evidence.
See Fed. R. Evid. 807 (residual exception to the hearsay rule).
In Idaho v. Wright, the Supreme Court held:
[I]f the declarant’s truthfulness is so clear from the
surrounding circumstances that the test of cross-examination
would be of marginal utility, then the hearsay rule does not
bar admission of the statement at trial.
497 U.S. 805, 820 (1990) (evaluating the propriety of admission
of hearsay under the residual hearsay exception). In Mechler,
this court was apparently swayed by the circumstances bolstering
the trustworthiness of the prior testimony as well: the statement
occurred under circumstances resembling a trial; the witness was
under oath; and the proceedings were conducted in front of a
judicial tribunal, which could provide a record of the hearing.
9
See Mechler, 754 F.2d at 1300. However, even if such
circumstances would be sufficient to permit admissibility of
prior testimony despite inadequate cross-examination, such
circumstances are not present here. Or at least they are not
present to an extent that would warrant admissibility absent some
other justification.
It is apparent that Magouirk’s Confrontation Clause rights
were violated. However, Magouirk’s claim fails because he waived
his right to assert his rights under the Confrontation Clause.
III.
A defendant’s rights under the Confrontation Clause may be
forfeited by his own misconduct. See Illinois v. Allen, 397 U.S.
337, 342-43 (1970). In United States v. Thevis, 665 F.2d 616
(5th Cir. 1982), we articulated the principle that actions of a
defendant designed to procure a witness’ unavailability
constitute a waiver of confrontation rights, even if that witness
was not effectively cross-examined at the preliminary hearing.
Indeed, in Thevis, the witness was not cross-examined at all; the
testimony that was properly admitted at trial was the grand jury
testimony of a witness who had been murdered by the defendant.
We deemed the testimony admissible, concluding that the defendant
“intelligently and knowingly waived his confrontation rights,”
much in the same way a defendant who absents himself from trial
or engages in conduct requiring his removal from the courtroom
10
knowingly waives those rights. Id. at 630 (citing Taylor v.
United States, 414 U.S. 17 (1980); Illinois v. Allen, 397 U.S.
337 (1970)).
The analysis that led us to find the Thevis testimony
admissible extends to this case. Even if Durbyn was not
effectively cross-examined at the preliminary hearing, Magouirk’s
actions should not be rewarded. Although in Thevis the defendant
had the potential witness murdered, such a drastic approach to
securing unavailability is a flagrant example of why the waiver
principle must apply. Here, the procurement of unavailability
still constituted an intelligent and knowing waiver. It is not
so much the severity of the behavior, but rather the intent
underlying it and its effectiveness, that constitutes a waiver.
The Eighth Circuit came to the same conclusion in United
States v. Carlson, in which the court approved admission of the
hearsay testimony because the defendant had intimidated the
witness into not testifying—-despite the fact that the defendant
was unable to cross-examine the witness at any time. 547 F.2d
1346, 1359 & n.12 (8th Cir. 1976). The court reasoned that to
“permit the defendant to profit from [witness intimidation] would
be contrary to public policy, common sense and the underlying
purpose of the confrontation clause.” Id. at 1359. The court
recognized that this was an extension of the reasoning that
allowed admission of a witness’ prior testimony in Reynolds v.
United States, 98 U.S. 145 (1878) (first articulating the
11
principle that a defendant should not profit from his misconduct
in procuring a witness’ unavailability). In Reynolds, the
defendant had the opportunity to cross-examine the witness when
the prior testimony was recorded. See id. at 159.
Other circuits have found that testimony in such
circumstances is admissible, even if the witness was not cross-
examined at all. In United States v. Aguiar, the Second Circuit
encountered a witness who declined to testify because of a
threatening letter he had received from the defendant. See 975
F.2d 45, 47 (2d Cir. 1992). The court held that “where, after a
hearing, a district court determines by a preponderance of the
evidence that a defendant procured the absence of a witness, the
defendant will be deemed to have ‘waived his sixth amendment
rights and, a fortiori, his hearsay objection.’” Id. (quoting
United States v. Mastrangelo, 693 F.2d 269, 272 (2d Cir. 1982)).
The statements that were admitted were statements to the police,
and not subject to cross-examination. The Tenth Circuit has also
found such a waiver in the form of threats by the defendant to
the witness, subject—-as in Aguiar—-to an evidentiary hearing in
which the court determines by a preponderance of the evidence
that the defendant did procure the witness’ unavailability. See
United States v. Balano, 618 F.2d 624, 629 (10th Cir. 1980). The
Balano case involved grand jury testimony of a witness who had
not been cross-examined.
What this court is left to determine, then, is whether the
12
district court erred in finding that there is a preponderance of
the evidence2 that 1) Magouirk procured Durbyn’s unavailability
and 2) he did so for the purpose of preventing him from
testifying. See Thevis, 665 F.2d at 633 n.17. We have no doubt
that the evidence before the district court easily met this
standard, and would even have met this circuit’s “clear and
convincing” standard. The district court credited the assistant
district attorney’s testimony that Durbyn indicated a willingness
to testify, and that, following an altercation with Magouirk,
Durbyn told him he was no longer willing to testify. The
government also notes that in Durbyn’s contempt proceeding, he
testified that he did not want to place himself and his family in
danger, and that Magouirk had both threatened and physically
attacked him. Magouirk does not dispute this.
IV.
The final basis for this appeal is Magouirk’s argument that
there was insufficient evidence to support his conviction.
2
This court has already held that a preponderance of the
evidence standard applies to this finding, and that is the law of
the case. Magouirk v. Phillips, 144 F.3d 348, 360 (5th Cir.
1998) (“[T]he Louisiana state courts are not bound by Fifth
Circuit precedent when making a determination of federal law.”).
Thus, although this court has adopted a “clear and convincing
evidence” standard for determining whether a defendant procured a
witness’ unavailability, see United States v. Thevis, 665 F.2d
616, 631 (5th Cir. 1982), the Louisiana Court of Appeal properly
rejected that reasoning and adopted the Second Circuit’s decision
in United States v. Mastrangelo, 693 F.2d 269, 2773 (2d Cir.
1982), which permits a finding of waiver on proof by a
preponderance of the evidence.
13
Magouirk’s argument here is two-pronged: first, that there was
insufficient evidence to support the conclusion that Thomas’
death was a homicide, not an accident; and second, that Magouirk
was the assailant. The first prong is without merit. The second
is governed by whether Durbyn’s testimony was admissible.
Magouirk’s argument here is premised on a determination that
Durbyn’s testimony was inadmissible. He makes no argument that,
with Durbyn’s testimony, there was insufficient evidence to
convict. Because we find that Durbyn’s recorded testimony was
admissible, there is no need for us to address this issue in the
form presented by Magouirk.3
Because Magouirk does not raise a sufficiency of the
evidence claim that encompasses all the evidence—-including
Durbyn’s testimony—-we need not address whether the other
3
Even if we had found that Durbyn’s testimony was
erroneously admitted at trial, we would still not have to decide
whether there was sufficient evidence to convict. We would
simply reverse and remand for retrial. This court has held that
the Double Jeopardy Clause does not prohibit retrial of a
defendant following reversal of his conviction for error in the
admission of evidence even if the evidence, sans the inadmissible
evidence, was insufficient to sustain the defendant’s conviction.
See United States v. Sarmiento-Perez, 667 F.2d 1239, 1240 (5th
Cir. 1982) (remanding “[b]ecause we cannot know what evidence
might have been offered if the evidence improperly admitted had
been originally excluded by the trial judge”); see also Lockhart
v. Nelson, 488 U.S. 33, 40 (1988) (holding that the Double
Jeopardy Clause allows retrial when a reviewing court determines
that a conviction must be reversed because evidence was
erroneously admitted against him, and also concludes that without
the inadmissible evidence there was insufficient evidence to
support a conviction); United States v. Marshall, 762 F.2d 419
(5th Cir. 1985) (same).
14
evidence alone was sufficient to support a conviction.
For the foregoing reasons, we AFFIRM the decision of the
district court.
15