NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                          File Name: 07a0758n.06
                          Filed: October 25, 2007

                                          No. 05-4464

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT




UNITED STATES OF AMERICA,                   :
                                            :
       Plaintiff-Appellee,                  :
                                            :       ON APPEAL FROM THE
                                            :       UNITED STATES DISTRICT COURT
v.                                          :       FOR THE NORTHERN DISTRICT OF
                                            :       OHIO
                                            :
SHAUNA BARRY-SCOTT,                         :
                                            :
       Defendant-Appellant.                 :
                                            :
                                            :


BEFORE: GIBBONS and McKEAGUE, Circuit Judges; and BERTELSMAN, District
Judge*.

WILLIAM O. BERTELSMAN, District Judge:

       Defendant-Appellant Shauna Barry-Scott challenges the constitutionality of her

conviction on the grounds that she was denied her rights of confrontation and compulsory

process under the Sixth Amendment to the United States Constitution. She also argues that the

judge who issued the search warrant for her residence was not neutral and detached so that the



       *
         The Honorable William O. Bertelsman, United States District Judge for the Eastern
District of Kentucky, sitting by designation.

                                                1
search conducted pursuant thereto was unconstitutional and the evidence found during the search

should have been excluded. For the following reasons, we affirm.

                                                  I.

       For the sake of clarity, a brief description of the relevant persons in this matter is

provided. Barry-Scott was arrested on drug charges following an investigation that included

controlled buys. Lamont Westin is a confidential informant who made the controlled buys from

Barry-Scott. Cornell Kennedy is the boyfriend of Barry-Scott’s adult daughter, Akia Hutchins.

       Judge John Durkin is the Mahoning County Common Pleas Judge who issued the warrant

for the search of Barry-Scott’s house. While in private practice, Durkin represented Barry-Scott

and her husband, Scott Lester, on similar but unrelated charges.

       Officer Jeffrey Solic is an Austin Township Police Officer who was in charge of the

“sting” and monitored the confidential informant.

       The facts of this case show that, between January 27, 2003 and April 21, 2003, Lamont

Westin, acting as a confidential informant and at the direction of Officer Solic, made multiple

controlled buys of cocaine base (crack) from Barry-Scott at her residence. Evidence regarding

the controlled buys was summarized by Officer Solic in the affidavit submitted in support of a

search warrant for Barry-Scott’s residence. The search occurred on April 24, 2003, three days

after the last controlled buy, and it resulted in the seizure of 124.73 grams of cocaine base and

$9,000.00 in cash. The search also revealed an additional $1,531.00 in cash in Barry-Scott’s bra.

Some of these bills matched the marked bills used in the controlled buys.

       On September 29, 2004, a federal grand jury returned a single-count indictment charging

Barry-Scott with possession with intent to distribute 120 grams or more of cocaine base.


                                                  2
       On April 18, 2005, the morning before trial was to begin, a suppression hearing was held.

Barry-Scott had filed motions in limine seeking to exclude certain testimonial statements not

subject to cross-examination. She also requested a writ of habeas corpus ad testificandum for

Cornell Kennedy, who was incarcerated in Omaha, Nebraska. Barry-Scott argued that Kennedy’s

testimony was necessary because Kennedy allegedly made statements against interest at the time

of the search. The court noted, however, that despite the opportunity to interview Kennedy,

defense counsel never did so, nor did counsel depose him. Therefore, the district court found

that Barry-Scott had no knowledge of whether Kennedy, were he called to testify, would assert

his Fifth Amendment privilege or deny responsibility for the drugs and money seized from Barry-

Scott’s residence.

       The district court concluded that Barry-Scott’s request was an attempt to conduct a

fishing expedition because there was no evidence that Kennedy would offer any testimony that

would be favorable to her. Moreover, the court noted that in a pretrial interview, Kennedy stated

that he did not know anything about the drugs that were seized. Barry-Scott, however, argued

that additional facts indicated Kennedy was not being truthful with the interrogating officer and

that he did know something about the drugs involved.

       The district court also held that the defense could call other witnesses to testify that

Kennedy made statements against interest in connection with the search, regardless of whether

Kennedy testified at trial. The district court decided that it would not incur the expense and

security risk of having Kennedy transported from Nebraska when defense counsel had never

talked to Kennedy and could not offer any evidence as to what he was going to say.

       Barry-Scott also moved to exclude testimony from Officer Solic regarding Westin’s


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controlled buys from Barry-Scott because Westin was unavailable to testify at trial. The

Government advised that it had tried to locate Westin but could not. The Government also

advised that it would not introduce the recordings of the controlled buys into evidence at trial.

The Government argued that the recordings would not have to be relied upon because the police

conducted surveillance at the buy location, they monitored transmissions of the transactions in

real time, and they dropped Westin off and picked him up immediately after the transactions.

Therefore, the Government argued that they would not have to rely upon Westin’s statements

about what occurred. The court permitted Officer Solic to testify about the investigation upon

which the search warrant was based, what Solic personally heard and observed during the

transactions, and the procedures employed for the controlled buys.

       At the suppression hearing, Barry-Scott argued that the search warrant was invalid

because the issuing judge, Durkin, had previously represented Barry-Scott and her husband in

drug-related cases, although he had not represented them since March of 1995. The district court

concluded that the affidavit established probable cause to conduct a search and that Durkin’s

prior representation was not enough to establish a conflict of interest. Moreover, and regardless

of the alleged bias, the district court held that the evidence seized fell within the Leon good faith

exception to the warrant requirement.

       The case proceeded to trial. In the Government’s case-in-chief, Officer Solic testified

about the controlled buys made by Westin. Six buys were made between January and April of

2003. Westin was provided money that had been photocopied. Police then placed a body

transmitter and recording device on Westin and took him to a school parking lot a block from

Barry-Scott’s residence. The police maintained surveillance while Westin was inside the


                                                  4
residence and listened to the transactions live. After the transactions, Westin met police at the

drop-off location and was searched for money and drugs, as he had been before he was taken to

the drop-off location.

       During another transaction, Officer Solic visually identified Barry-Scott when she sold

crack to Westin from her black Pontiac Grand Prix. Solic testified that he identified Barry-Scott

at the time of the buys based upon her driver’s license and that he could also identify her voice

during the live transmission of the transactions.

       Based upon the controlled buys, the police obtained a search warrant for Barry-Scott’s

residence. During the search, police seized 124.73 grams of crack cocaine and $9,000.00 from

the bedroom of Barry-Scott’s daughter, Akia Hutchins. Police also seized $1,531.00 from Barry-

Scott’s bra, a portion of which matched some of the buy money serial numbers from transactions

with Westin. Defense counsel specifically questioned Officer Solic about Westin’s statements.

The Government asserted that Westin could not be located to testify at trial.

       Defense counsel objected to the admission of some of the Government’s exhibits and to

evidence of the drugs related to the purchases made by Westin, because Westin was not present

during the trial. The district court overruled these objections.

       Hutchins testified during the defense’s case-in-chief. She stated that she lived with her

mother at the time of the search and that she had a child with Cornell Kennedy, who sometimes

stayed overnight at the residence. Hutchins testified that Kennedy would bring money to the

residence and that she would help him count it.

       Hutchins further testified that a couple of months before the search, she counted the

$9,000.00 that was seized from her bedroom. She also testified that the money belonged to


                                                    5
Kennedy. Hutchins testified that Kennedy said that he was not going to let her and her mom take

the blame and that he was going to have to take a loss on the money that was seized. Hutchins

also knew where her mother kept the crack that was sold to Westin.

       Barry-Scott’s other daughter, Lestacia Scott, testified that Kennedy also told her that he

had drugs and money in the house and that he would not let somebody else take the blame for

them. Similar testimony was given by Dominic Brown, a family friend, who was outside of the

house at the time of the search. The testimony of these three witnesses was emphasized by

defense counsel during his closing argument.

       At the close of the trial, on April 20, 2005, the jury found Barry-Scott guilty on count one

of the indictment. On October 18, 2005, Barry-Scott was sentenced to 240 months’

incarceration, plus 10 years of supervised release. Her notice of appeal was timely filed on

November 1, 2005.

                                                     II.


       Barry-Scott argues in this appeal that she was denied her rights under the Confrontation

Clause as guaranteed by the Sixth Amendment to the Constitution because Westin, the

confidential informant, was not called to testify, and the court would not postpone the trial or

issue a warrant to secure his attendance at trial.

       The United States argues that Officer Solic’s testimony about what Westin told him was

not offered for the truth of the matter asserted but rather only as background as to how the

investigation developed. Therefore, it did not violate the Confrontation Clause. The United

States further argues that, even if there was a Confrontation Clause violation, the error was



                                                     6
harmless because there was sufficient other evidence to convict Barry-Scott, including the

testimony of her daughter; the testimony of Officer Solic, who detailed the process of the

investigation; and the fact that the money found in Barry-Scott’s bra matched the buy money

given to Westin.

       Confrontation Clause issues regarding the unavailability of a witness and the

reasonableness of the efforts to produce the witness are mixed questions of law and fact which

this court reviews de novo. Hamilton v. Morgan, 

, 858 (6th Cir. 2007) (citations

omitted). Confrontation Clause challenges to the admission of hearsay statements against the

accused are reviewed de novo. United States v. Johnson, 

, 842-43 (6th Cir. 2006)

(citing United States v. Pugh, 

, 397-99 (6th Cir. 2005)).

       The Sixth Amendment Confrontation Clause provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.” U.S. Const. amend. VI. This is a “bedrock procedural guarantee” that applies to both state

and federal prosecutions. Crawford v. Washington, 

, 42 (2004) (citation omitted).

The principal evil at which the Confrontation Clause is directed is the use of ex parte

examinations as evidence against the accused. 

“[T]he clause’s ultimate goal is to

ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It

commands, not that evidence be reliable, but that reliability be assessed in a particular manner:

by testing in the crucible of cross-examination.” 

The Court in Crawford reviewed the

history of the Confrontation Clause and stated that “[t]estimonial statements of witnesses absent

from trial have been admitted only where the declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-examine.” 

                                                  7
       In Crawford, the Supreme Court distinguished between two types of hearsay evidence

against the accused: testimonial and nontestimonial. 

The Confrontation Clause

protections apply to both types, but different factors determine whether or not the admission of

the hearsay statements is constitutional. 

held that statements taken by police

officers in the course of interrogations are testimonial and, specifically as to that case, the

declarant’s recorded statement, knowingly given in response to police questioning, qualified

under the definition of testimonial hearsay. 

n. 4. Also held to be testimonial is prior

testimony at a preliminary hearing, before a grand jury, or at a former trial. 

1

       To determine whether or not the disputed statements are testimonial, “[t]he proper

inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent,

in turn, may be determined by querying whether a reasonable person in the declarant’s position

would anticipate his statement being used against the accused in investigating and prosecuting

the crime.” 

(quoting United States v. Cromer, 

, 675 (6th

Cir. 2004)). The question here is thus whether a person in Westin’s position would anticipate his

statements being used against Barry-Scott in a criminal prosecution or investigation. 

part of this Confrontation Clause analysis is that, if there was an evidentiary

error, it must be determined whether said error was harmless. United States v. Baker, 

, 520 (6th Cir. 2006) (citing United States v. Pugh, 

, 400 (6th Cir. 2005)). “‘In

determining whether an error is harmless, the reviewing court must take account of what the error


       1
        Although not determinative of the Confrontation Clause issue presented in this appeal, in
United States v. Johnson, 

(6th Cir. 2006), this court recognized that where
statements at issue are nontestimonial hearsay, the decision of Ohio v. Roberts, 

(1980), is still controlling. 

. Crawford abrogated Roberts’ holding as to
out-of-court testimonial statements. 

.

                                                   8
meant to [the jury], not singled out and standing alone, but in relation to all else that happened . .

. . In other words, we must find that it was more probable than not that the error materially

affected the verdict.’” 

405 F.3d at 400-01).

         Barry-Scott argues that her Confrontation Clause rights were violated when the

confidential informant, Westin, was not produced for cross-examination and Officer Solic was

permitted to testify as to what he heard Westin say to Barry-Scott during the investigation. Out-

of-court statements were permitted to be used against her, she argues, when she was not given an

opportunity for cross-examination. The Government responds that the Confrontation Clause was

not violated because the testimony was not hearsay as it was not offered for the truth of the

matter asserted but instead was offered only to prove the procedures of the investigation.

         This court has reviewed the entire trial transcript as well as the transcripts of the hearings

on the motion to dismiss and the motion to continue. Overall, it is evident that Barry-Scott

received a fair trial. It is also evident, however, that there were both testimonial and

nontestimonial statements by Westin that came into evidence through the testimony of Officer

Solic.

         Some of the out-of-court statements about which Barry-Scott complains do not present

Confrontation Clause problems because they are not hearsay because the declarant’s testimony

was not being used for the truth of the matter asserted. Rather, Officer Solic was testifying as to

his personal knowledge that the statements were, in fact, made. Officer Solic personally heard

the statements as they were being made, and they were introduced to explain the investigation

process and procedure. These statements were not being offered for the truth of the matter that

drugs were being purchased. As to these statements, Barry-Scott has no viable Confrontation


                                                   9
Clause challenge.

       It appears, however, that some of the statements were testimonial in that they were given

to police as part of interrogation or questioning of Westin following the buy transactions.

Crawford clearly holds that statements resulting from police questioning are testimonial.

. The only purpose of the statements by Westin to the police officers

was that those statements be used against the accused in investigating and prosecuting the crime.

Therefore, Westin’s statements to the officers fit the definition of testimonial out-of-court

statements as established in Crawford and Johnson. See 

.

       Westin engaged in six different controlled drug transactions with Barry-Scott. All were

monitored live by Officer Solic as well as audiotaped. Most of the officer’s testimony about

what Barry-Scott said and did was based on his own first-hand visual observations and audio

monitoring. He did, however, testify that Westin “gave [him] the name and basically the

standard of how he would” make a buy, “and he advised he could make controlled drug buys of

crack cocaine and/or cocaine from the Defendant, Shauna Barry-Scott, who’s seated at the

defense table here.” (JA 28, 195). Westin also purportedly confirmed Barry-Scott’s identity

from a copy of her driver’s license photo. (JA 28). While this information, including the

reference to Westin’s “standard” or “normal procedure” for procuring drugs from Barry-Scott,

could be seen as substantive evidence of Barry-Scott’s involvement in drug deals, it is better

viewed as simply background for the officer’s subsequent discussion of the various controlled

drug transactions, given that the references were brief and were made near the beginning of the

officer’s testimony.

       More problematic is another statement attributed to Westin. When describing the second


                                                 10
controlled buy, Officer Solic testified that Westin “indicated Ms. Scott was on the way to drop

off the additional crack cocaine.” (JA 31). This was immediately bolstered by the officer’s

testimony that he saw a car registered to Barry-Scott drive up to Westin, and, after Westin

entered the car, the officer heard Westin talking with Barry-Scott about purchasing crack cocaine.

(JA 31-32). Westin’s statement thus placed Barry-Scott at the scene of the second controlled

purchase.

       Even more troubling, the Government made several references in its closing argument to

statements purportedly made by Westin. At one point, it referred to Westin’s statement to

Officer Solic that “for the informant to buy drugs from [the defendant], he can only go buy what

he normally would buy. He said the most he could afford was 10 bucks. He can’t go buy

anymore.” (JA 47). The Government offered this statement to explain why the confidential

informant’s controlled purchases were for relatively small amounts of crack cocaine. 

moments later, the Government asserted, “we know that the confidential informant contacted that

person [ i.e. the defendant] and told Sergeant Solic that’s who it was.” (JA 49). This last

statement clearly implicated Barry-Scott as the drug dealer. Finally, near the end of its closing,

the Government tried to bolster the actions and statements of the confidential informant:

“There’s no question that all those controlled buys took place. That’s not an issue. The

informant’s reliability is not an issue. It’s been corroborated by their own witness [the

defendant’s daughter].” (JA 51).

       These statements attributed to Westin do appear to have been proffered to prove the truth

of the matter asserted, rather than simply as background. There being no question that Barry-

Scott did not have an opportunity to cross examine the confidential informant, the statements


                                                 11
should have been excluded, and Barry-Scott’s Sixth Amendment right to confrontation was

violated.

       However, despite this violation, Barry-Scott’s appeal on this issue ultimately fails

because any error of the district court was harmless. When considering the evidence, it is clear it

was sufficient to convict Barry-Scott without the testimony concerning Westin’s statements. The

evidence before the jury included the officer’s personal observations, the matching buy money,

and the testimony of Barry-Scott’s daughter that she knew where her mother kept the drugs. The

error was thus harmless, and we will not disturb the verdict on this basis.

                                                III.

       Barry-Scott next argues that the district court violated her Sixth Amendment right to

compulsory process by failing to grant a continuance and compel the attendance of two

witnesses: Westin, the confidential informant, and Kennedy, the daughter’s boyfriend who

allegedly stated that the money and drugs belonged to him. The Government argues that these

challenges fail because there is nothing to show that the testimony would have been beneficial to

Barry-Scott. Moreover, these issues, the Government asserts, were raised for the first time on

appeal, there is no plain error, and the absence of the witnesses did not affect Barry-Scott’s

substantive rights.

       The standard of review of a motion to grant or deny a motion for a continuance in order to

secure the attendance of a witness is abuse of discretion. United States v. Thomas, 29 Fed. Appx.

241, 246 (6th Cir. 2002) (citation omitted). An abuse of discretion will be found only when the

court exhibits “an unreasonable and arbitrary insistence” on the speed of the trial when faced

with a justifiable request for a delay. 

a showing that a continuance would


                                                 12
have made a relevant witness available or added something to the defense.” 

“‘[M]ore than mere absence of testimony is necessary to establish a violation of the right to

[compulsory process] . . . .[The defendant] must at least make some plausible showing of how

[the witness’s] testimony would have been both material and favorable to his defense.’”

Cunningham v. Stegall, 13 Fed. Appx. 286, 290 (6th Cir. 2001) (quoting United States v.

Valenzuela-Bernal, 

, 866-67 (1982)).

       The compulsory process guarantee of the Sixth Amendment provides that all criminally

accused shall have the right to compulsory process for obtaining witnesses in his favor. Thomas,

29 Fed. Appx. at 247 (citations omitted). The factors considered by appellate courts in

determining whether a right to compulsory process has been denied include “the diligence of the

defense in interviewing witnesses and procuring their presence, the probability of procuring their

testimony within a reasonable time, the specificity with which the defense is able to describe

their expected knowledge or testimony, the degree to which such testimony is expected to be

favorable to the accused, and the unique or cumulative nature of the testimony.” 

v. Scroggy, 

, 774 (6th Cir. 1986)).

       This case is similar to Thomas, 29 Fed. Appx. at 247. The law as stated in the Thomas

opinion is directly applicable here in that Barry-Scott asserts that the district court erred when it

denied her motion for a continuance and failed to secure the presence of two witnesses, either by

compulsory process or writ of habeas corpus ad testificandum.

       The court in Thomas found that where counsel for the defendant failed to timely file

subpoenas or served them late, where the relevance of the testimony was determined to be

marginal, where several delays had already been granted in order to locate several witnesses, and


                                                  13
where counsel never requested the court’s assistance in compelling the witnesses, the district

court had not abused its discretion in denying the motion for a continuance. 

factors to the instant case, Barry-Scott has not shown that either Westin or

Kennedy’s testimony, if presented, would have been beneficial to her or would have aided in her

defense. Westin, of course, was the confidential informant against Barry-Scott and presumably

would not have provided testimony in her favor. Arguably, to have had him available for cross-

examination might have aided her defense. However, she has failed to show that his absence

affected her substantial rights, especially in light of the more-than-sufficient evidence of her

guilt.

         With regard to Kennedy, the boyfriend of Barry-Scott’s daughter, Barry-Scott argues that

he could have testified that the money and drugs belonged to him. Defense counsel had not

interviewed Kennedy nor taken his deposition. In response to defense counsel’s request for a

writ for Kennedy, the district court stated: “You can probably offer that testimony during trial

from those other witnesses, but you don’t need to put him on to deny it. We won’t go through

the expense – first of all, you could have taken his deposition and didn’t do it; secondly . . . we

are not going through the risk of having him brought here and the expense of having him brought

here, when you have never talked to him, and that you can’t offer anything as to what he’s going

to say.”

         This ruling is a correct application of the law to the facts of this case and is consistent

with the factors as stated in Thomas. Therefore, the decision of the district court was not an

abuse of discretion.




                                                   14
                                                IV.


       Barry-Scott also appeals the district court’s denial of her motion to suppress the search of

her residence, arguing that the judge who issued the warrant was not neutral and detached

because he previously represented her and her husband around 1994-95 and was aware of their

drug activities.2 The Government argues that the judge was sufficiently neutral and detached

and, in any event, the good faith exception would apply even if the warrant were lacking.

       This court reviews the district court’s findings of fact in a suppression hearing under the

clearly erroneous standard, while its conclusions of law are reviewed de novo. Untied States v.

Parker, 

, 771 (6th Cir. 2004) (citations omitted).

       There are two categories of cases that address the neutral and detached requirement.

United States v. Bowers, 

, 1174 (6th Cir. 1987). The first category includes those

cases that state that the Fourteenth Amendment “would be violated by subjecting a person’s

liberty or property ‘to the judgment of a court, the judge of which has a direct, personal,

substantial, pecuniary interest in reaching a conclusion against him in his case.’” 

v. Ohio, 

, 523 (1927)). The second category of cases is based on the

requirements of the Fourth Amendment and emphasizes the need for severance and detachment

of the magistrate from the activities of law enforcement. 

See also 

; United States v. Bennett, 

, 637 n. 3 (6th Cir. 1999).

       Where the warrant is lacking due to the judge’s failure to act in a neutral and detached

manner, however, the evidence seized pursuant to a defective warrant may still be admissible if it


       2
         In her pro se supplemental brief, Barry-Scott characterizes the judge as a close personal
friend, but the evidence from the suppression hearing does not support such an inference.

                                                 15
fits within the requirements of the good faith exception to the exclusionary rule. United States v.

Caldwell, No. 99-5465, 

, at *6 (6th Cir. Aug. 30, 2000) (citing United States v

Leon, 

, 922 (1984)). In such circumstances, the evidence is admissible if it was

reasonable for the officers executing the warrant to rely upon the judge’s authorization in good

faith. 

case, the evidence seized is admissible because the record does not establish that

the judge was not neutral and detached and, even if he were not, the warrant was sufficiently

grounded in probable cause for the officers to reasonably rely upon it. Barry-Scott has not shown

that the judge had any specific personal knowledge of her or her husband that was detrimental to

her or that had any impact on his issuance of the warrant. Neither has Barry-Scott shown that the

judge had a personal, pecuniary or substantial interest in the outcome of the search or that he was

too closely tied to the functions of law enforcement. Without such evidence, there is nothing to

suggest that the judge abandoned his role as a neutral and detached judicial officer. Thus, the

decision of the district court based upon these same factors was not clearly erroneous.

        However, even if it were shown that the judge was not neutral and detached, the good

faith exception to the exclusionary rule would apply. The warrant was based upon a three-

month investigation that included controlled buys, which were recorded and some of which were

witnessed by the officer requesting the warrant. The warrant on its face, to a reasonable officer,

was sufficient to support a finding of probable cause.

        Moreover, the officer requesting the warrant and the officers executing the warrant were

not aware of the former attorney-client relationship between Barry-Scott and the judge. The

alleged bias thus could not have impacted the officers’ activity. Again, the decision of the


                                                 16
district court was not clearly erroneous, and Barry-Scott’s appeal on this issue fails.

                                                 V.

       For the foregoing reasons, the judgment of the district court is AFFIRMED.




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