United States v. Timothy McKinney

707 F.2d 381 13 Fed. R. Evid. Serv. 741 UNITED STATES of America, Plaintiff-Appellee, v. Timothy McKINNEY, Defendant-Appellant. No. 81-1636. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 16, 1982. Decided May 23, 1983. Phillip Cronin, Asst. U.S. Atty., Fresno, Cal., for defendant-appellant. Harry E. Hull, Jr., McDonough, Holland & Allen, Sacramento, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before TRASK and POOLE, Circuit Judges, and BELLONI, * District Judge. TRASK, Circuit Judge: 1 Appellant Timothy McKinney appeals his jury trial conviction for armed bank robbery in violation of 18 U.S.C. Secs. 2113 (a) and (d). 2 In June 1981, three armed men robbed the Sequoia Savings and Loan in Fresno, California. Indictments were returned against Timothy McKinney, Larry Simmons and Joe Jennings. Jennings pled guilty to the bank robbery charge. McKinney was convicted in a jury trial on September 17, 1981. On November 12, 1981, Simmons was convicted in a jury trial. 3 * At trial, FBI Agent Hobart Johnson was a witness for the government. His testimony concerned conversations he had with…

Appellant Timothy McKinney appeals his jury trial conviction for armed bank robbery in violation of 18 U.S.C. §§ 2113 (a) and (d).

In June 1981, three armed men robbed the Sequoia Savings and Loan in Fresno, California. Indictments were returned against Timothy McKinney, Larry Simmons and Joe Jennings. Jennings pled guilty to the bank robbery charge. McKinney was convicted in a jury trial on September 17, 1981. On November 12,1981, Simmons was convicted in a jury trial.

I

At trial, FBI Agent Hobart Johnson was a witness for the government. His testimony concerned conversations he had with Evonne Walker several days after the robbery. Evonne Walker was Larry Simmons’ girlfriend. Agent Johnson, relying on his report of his conversation with Walker testified as follows:

Evonne Walker had testified earlier that she had no recollection of the statement *383 Simmons allegedly made to her or of her conversation with Agent Johnson. Simmons did not testify at McKinney’s trial. The above quoted testimony came in over the hearsay objections of McKinney’s attorney.

We find that admission of Agent Johnson’s testimony violated McKinney’s sixth amendment right “to be confronted with the…

dissenting:

I dissent. The majority opinion demonstrates the possibility of error that exists when a court injects into a case an issue that the parties did not raise, brief or argue at trial or on appeal. The majority concludes: that the judge committed “plain error” under the Confrontation Clause of the Sixth Amendment by admitting into evidence, over the objection of the appellant under Fed.R.Evid. 403, certain testimony of Special Agent Johnson; that the “plain error” was not “harmless beyond a reasonable doubt,” Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969); United States v. Hollingshead, 672 F.2d 751, 755 (9th Cir.1982); and that, therefore, reversal is required. The majority’s analysis does not support a reversal.

The majority describes the testimony of Agent Johnson as double hearsay — the appellant to Walker and Walker to Johnson. 1 The characterization is erroneous. The first-level statement contains two components: the accusatory statement by Simmons, and the appellant’s adoption of the statement by his silence. Neither of the components constitutes hearsay, and it is, therefore, incorrect to speak of Agent Johnson’s testimony as…