United States of America, Plaintiff-appellee, v. Tomas Acosta, Defendant-appellant, 769 F.2d 721 (11th Cir. 1985)

Tomas Manuel Acosta appeals his conviction of conspiracy to distribute marijuana, 21 U.S.C. § 846, and possession of marijuana with intent to distribute, 21 U.S.C. § 841(a) (1). Acosta's sole ground on appeal is his claim that the trial court erred in excluding from evidence a transcript of previous testimony by an allegedly "unavailable" witness. We hold that the trial court did not abuse its discretion; therefore we affirm.

Acosta and three others were arrested by customs officers early in the morning in a house containing a large amount of marijuana. At trial, Acosta explained his presence as the result of having been a guest who, with his wife, had been invited to the house by a business acquaintance to attend a party the night before. According to Acosta, shortly after their arrival, he and his wife had had an argument and she had departed in their automobile. He then consumed a large quantity of alcohol and fell asleep, to be awakened by the arrival of the officers. As corroborating evidence of Acosta's alibi, the defense sought to introduce the testimony Mrs. Acosta had given at the pre-trial suppression hearing.¹  The defense stated that Mrs. Acosta was presently unavailable as a witness due to her child's illness.²  The court refused to admit the evidence. Acosta was convicted by a jury.

On appeal, Acosta claims that the prior testimony should have been admitted pursuant to Federal Rule of Evidence 804.

Rule 804 of the Federal Rules of Evidence provides an exception to the rule against hearsay in certain situations where the potential witness is unavailable. As we explained in United States v. King, 713 F.2d 627 (11th Cir. 1983), "Rule 804 establishes a two-step inquiry. First, a witness must be 'unavailable' as that term is defined in section 804(a).... Second, the testimony of the unavailable witness must fall within one of the categories of admissible evidence enumerated in section 804(b)."³ 

Determinations of the admissibility of evidence are in the discretion of the trial judge and will not be reversed by an appellate court unless it finds an abuse of discretion. United States v. Russell, 703 F.2d 1243 (11th Cir. 1983). Accordingly, the determination as to the "unavailability" of a witness whose prior testimony is sought to be introduced into evidence is also the responsibility of the trial judge, Howard v. Sigler, 454 F.2d 115 (8th Cir. 1972), subject to the same standard of review.

The question confronting the court below was two-fold: (1) whether Mrs. Acosta was "unavailable" as contemplated by 804(a) and, (2) if so, whether her testimony was admissible as defined in 804(b) (1).

The burden of proving the unavailability of a witness under Rule 804(a) rests with the proponent of the hearsay evidence, in this case, the appellant. United States v. Amaya, 533 F.2d 188 (5th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S. Ct. 1125, 51 L. Ed. 2d 551 (1977),⁴  United States v. Fernandez-Roque, 703 F.2d 808 (5th Cir. 1983); United States v. Pelton, 578 F.2d 701 (8th Cir. 1978), cert. denied, 439 U.S. 964, 99 S. Ct. 451, 58 L. Ed. 2d 422 (1978). We conclude that here the appellant failed to carry this burden. He offered no evidence that he had requested the witness to testify or that she had refused to do so. Nor was there medical testimony as to the nature or severity of the child's illness or that the child's health would be jeopardized by the mother's absence. Moreover, there was no pre-trial motion for a continuance in order to produce the witness at a later trial. Peterson v. United States, 344 F.2d 419 (5th Cir. 1965) (temporary illness or disability of a witness is not sufficient to justify admission of prior testimony without a showing that a continuance would not resolve the problem). The sole support for Acosta's claim was his counsel's uncorroborated statement that Mrs. Acosta was unavailable due to her child's illness. We conclude that the district court did not abuse its discretion in determining that this statement, in and of itself, was not sufficient to satisfy the proponent's burden of demonstrating that the witness was unavailable.⁵ 

Having determined that appellant failed to satisfy the first prong of Rule 804, unavailability of the witness, we need not address the second prong, whether the government had a sufficient opportunity for cross-examination so as to make the prior testimony admissible pursuant to 804(b) (1).

We conclude that the trial judge did not abuse his discretion in excluding the prior testimony of Mrs. Acosta. The conviction, therefore, is AFFIRMED.

We note that Acosta's indictment charged him with conspiring to distribute marijuana, and possession of marijuana with the intent to distribute. The judgment and commitment order, however, erroneously stated that he had been convicted of conspiring to distribute cocaine, and possession of cocaine with the intent to distribute. This case, therefore, is remanded for correction of the judgment and commitment order.