The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1666
IRVING L. C ROSS,
Petitioner-Appellant,
v.
M ARCUS H ARDY, Acting Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cv-05692—William J. Hibbler, Judge.
A RGUED N OVEMBER 30, 2009—D ECIDED JANUARY 13, 2011
Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Irving Cross was arrested and
charged with several counts of kidnapping and sexual
assault in connection with the alleged rape of a woman
Cross claimed was working as a prostitute. According to
We substitute Marcus Hardy, the current warden of State-
ville Correctional Center, as the Respondent in this action.
See Fed. R. App. P. 43(c)(2).
2 No. 09-1666
Cross, the complainant consented to the sexual contact
in exchange for money and drugs. During Cross’s first
trial, the jury returned a verdict of not guilty on the
kidnapping count but was unable to reach a verdict as to
the sexual assault counts. At Cross’s retrial on the
sexual assault charges, the jury found him guilty of sexual
assault, but not guilty of aggravated sexual assault. Cross
raised several challenges to the trial court’s evidentiary
rulings, including its finding that the complainant was
unavailable, which permitted the admission of her testi-
mony from the first trial during the second trial. The
Illinois appellate court rejected Cross’s arguments and
affirmed the conviction. Cross later filed a federal
habeas petition pursuant to 28 U.S.C. § 2254, which the
district court denied. Cross now petitions this court for
review, arguing that the state courts improperly con-
cluded that the complainant was unavailable. We find
that the state failed to demonstrate that it employed
good faith efforts to locate the complainant and that the
state appellate court unreasonably applied federal law
when it concluded that the complainant was unavailable.
Therefore we grant the petition and remand for further
proceedings consistent with this opinion.
No. 09-1666 3
I. BACKGROUND 1
On August 6, 1998, Irving Cross was arrested for
sexually assaulting a 19-year-old woman (only identified
by her initials, “A.S.”) at knifepoint thirty minutes
before the arrest. Cross maintained that the sexual
contact was consensual and that he had given the com-
plainant money and drugs in exchange for sex. Cross
was charged with several counts of criminal sexual
assault, aggravated sexual assault, and aggravated kid-
napping. He was tried before a jury in November 1999.
Before trial, Cross filed an answer to pretrial discovery
in which he asserted a consent defense and sought to
introduce evidence that A.S. told the doctor who
examined her after the incident that “she had been a
hooker up until last week” and that she “has used rock
cocaine.” Cross also sought to introduce his statement
to police from the night of the incident, in which he
described meeting A.S. at a bus stop in Chicago, giving
her money to purchase crack cocaine, smoking the
1
While this appeal was pending, Cross filed a motion to
supplement the record with additional items that were not
included in the record at the district court. We generally do
not supplement the record on appeal, Ruvalcaba v. Chandler, 416
F.3d 555, 563 n.2 (7th Cir. 2005), but “have allowed a habeas
petitioner to supplement the record on rare occasions . . . when
the information included was important to an understanding
of the prior proceedings in a plaintiff’s case,” George v. Smith,
586 F.3d 479, 486 n.1 (7th Cir. 2009). Here, we need not rule
on the motion because we have reached a decision without
reference to the additional citations.
4 No. 09-1666
drugs with her in the backyard of an abandoned house,
and then having consensual sex with her. The state
filed motions in limine to preclude Cross from asking
about A.S.’s background as a prostitute, her drug use,
and Cross’s statements to police. The trial court granted
the state’s motions, finding that any statements about
A.S.’s history as a prostitute were barred by Illinois’s
rape shield statute, 725 ILCS § 5/115-7, and that the
alleged prior prostitution was not relevant to whether
she consented to sexual contact with Cross on the night
in question. The trial court also granted the state’s
motion with respect to Cross’s statements to police and
the evidence of A.S.’s drug use, which the court found
would only be relevant if it showed that A.S. used drugs
on the day of the incident or the day before, as that
could affect her ability to observe and recall the incident.
At trial, A.S. was the state’s primary witness, but her
demeanor and manner of testifying appeared to raise
some concerns about her credibility. She was both
evasive and hesitant in answering questions, and, ac-
cording to the trial court, her testimony was filled
with long pauses, as demonstrated by the trial court’s
observation that A.S. took an average of two minutes
to answer each question. The jury returned a verdict of
not guilty on the aggravated kidnapping counts. On
the sexual assault charges, the jury was hung, and the
court declared a mistrial.
In early 2000, the state reinitiated its efforts to
prosecute Cross, and the second trial was scheduled
for March 29, 2000. During a March 20th status call
No. 09-1666 5
with the trial judge, the prosecutor indicated that it had
not been able to locate A.S. On March 28—a week later
and the day before the second trial was to begin—the
state filed a motion to declare A.S. unavailable and to
use her earlier testimony at Cross’s second trial. The
state described its investigation into A.S.’s whereabouts
as follows: On March 3, an investigator interviewed
A.S.’s mother and brother, neither of whom knew where
A.S. was. A.S.’s mother also conveyed to the investiga-
tor that A.S. was “very fearful and very concerned”
about testifying again. The investigator interviewed
A.S.’s father on March 9 or 10, and he said he knew
nothing about A.S.’s whereabouts. The investigator
also checked the county hospital, jail, and morgue.
The state also reported in its motion that it learned
from A.S.’s mother on March 10 that A.S. had left home
the day before and had not returned. At this point, the
state’s attorney’s office enlisted the help of a detective
and a victim’s advocate to help locate A.S. The detec-
tive duplicated many of the previously unsuccessful
search efforts, including visiting the residences of
A.S.’s mother and father. On one visit, the mother in-
formed the detective that A.S. could be staying with an ex-
boyfriend in Waukegan, Illinois, a city located forty
miles north of Chicago. When the detective went to
the Waukegan address, the ex-boyfriend’s mother in-
formed him that she had not seen A.S. in several months
and that A.S. was not staying with her or her son.
During another visit to A.S.’s mother’s home, A.S’s
mother advised the detective that A.S. had called her
two weeks earlier and told her that she did not want to
6 No. 09-1666
testify and would not return to Chicago. The victim’s
advocate also called A.S.’s mother, who told the
advocate that A.S. might be with an ex-boyfriend in
Waukegan and that A.S. was enrolled in cosmetology
school in another city. Cross then objected to the state’s
motion to declare A.S unavailable, arguing that the
state had not acted in good faith and had not made all
feasible efforts to locate A.S. such as looking into
certain prominent places that A.S. allegedly frequented.
Cross also argued that A.S.’s absence was temporary
and did not amount to unavailability. Finding that the
state had acted in good faith and expended reasonable
efforts to locate A.S., the trial court granted the state’s
motion to substitute A.S.’s testimony from the first trial
at Cross’s retrial.
At Cross’s second trial, a law clerk from the state’s
attorney’s office read A.S.’s testimony into the record.
The law clerk’s rendition did not reflect A.S.’s hesitance
or lengthy pauses from the first trial, and at times, the
law clerk spoke with an inflected tone of voice. When
Cross objected to the law clerk’s “acting,” the trial
court instructed the state to “tell her to answer the ques-
tions [because] there’s a slight inflection on some of
her answers.” At the conclusion of the trial, the jury
returned a verdict of guilty of two counts of sexual
assault, and not guilty of aggravated sexual assault.
The trial court sentenced Cross to 30 years’ imprison-
ment for each count to be served consecutively.
On direct appeal to the Illinois appellate court, Cross
challenged several aspects of his conviction, including
No. 09-1666 7
the trial court’s suppression of evidence relating to A.S.’s
alleged prostitution and drug use and the state’s use of
the transcript of her former testimony, which Cross
argued was a violation of his Sixth Amendment right
to confrontation. Although the appellate court “acknowl-
edge[d] concerns” about the absence of live testimony—
particularly where the absent witness is the sole eye-
witness whose credibility may be crucial—the appellate
court affirmed the trial court’s finding that A.S. was
unavailable based on her apparent desire to avoid being
located. The appellate court also agreed with the trial
court’s determination that the state had met its burden
of demonstrating that it engaged in a good faith
diligent search to locate A.S., ultimately affirming Cross’s
conviction and sentence.
The Illinois Supreme Court denied Cross leave to
appeal, and Cross filed a petition for a writ of certiorari
in the Supreme Court of the United States. After
briefing by both parties, the Supreme Court denied the
writ. Cross then filed a 28 U.S.C. § 2254 petition with
the district court in which he raised Sixth Amendment
and due process challenges to several of the trial court’s
evidentiary rulings, including its finding that A.S. was
unavailable. The district court rejected these arguments
and denied the petition, finding in part that Cross had
failed to demonstrate that the state courts’ findings con-
cerning A.S.’s unavailability were an unreasonable ap-
plication of federal law. Cross now appeals from the
district court’s denial of his habeas petition and raises
only one issue for our review—whether the state
appellate court reasonably applied federal law in its
8 No. 09-1666
determination that A.S. was unavailable and that the
state made a good faith effort to find her.
II. ANALYSIS
In an appeal from a ruling on a petition for habeas
relief, we review the district court’s findings of fact for
clear error and its rulings on issues of law de novo. Bintz
v. Bertrand, 403 F.3d 859, 865 (7th Cir. 2005). To qualify
for habeas relief under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), Cross must show that
the state court proceedings adjudicating his claim
“resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1).
The Sixth Amendment’s Confrontation Clause pro-
vides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the wit-
nesses against him.” U.S. Const. amend. VI. Nonetheless,
the Supreme Court has held that certain hearsay state-
ments, including former testimony of an unavailable
declarant, may be admissible without running afoul of
the Sixth Amendment. See Ohio v. Roberts, 448 U.S. 56, 66
(1980) (“[W]hen a hearsay declarant is not present for
cross-examination at trial, the Confrontation Clause
normally requires a showing that he is unavailable.
Even then, his statement is admissible only if it bears
adequate ‘indicia of reliability.’”); Barber v. Page, 390
U.S. 719, 724-25 (1968) (holding that a witness is not
unavailable unless the government can demonstrate a
No. 09-1666 9
good faith effort to obtain the witness’s presence at
trial).2 We find that the Illinois appellate court accurately
laid out the applicable law governing unavailability
even though it did so largely in terms of state rather
than federal law. See Early v. Packer, 537 U.S. 3, 8 (2002)
(“Avoiding these pitfalls [of contradicting federal law]
does not require citation of our cases—indeed, it does not
even require awareness of our cases, so long as neither
the reasoning nor the result of the state-court decision
contradicts them.”) (emphasis in original). Thus, al-
though the state appellate court did not cite to any Su-
preme Court case, the standard it applied regarding the
good faith effort requirement was identical to that
of Roberts.
The central question on appeal is whether the state
appellate court unreasonably applied Supreme Court
precedent when it affirmed the trial court’s unavail-
2
The Supreme Court modified Roberts’s reliability requirement
in Crawford v. Washington, 541 U.S. 36, 68 (2004), where the
Court held that the Sixth Amendment demands unavailability
and a prior opportunity for cross-examination. Despite the
current precedent, we must analyze Cross’s claims under
Roberts and its progeny because that was the precedent at the
time of the relevant state court decision. See Teague v. Lane,
489 U.S. 288, 301 (1989) (prohibiting analysis of reasonable-
ness of state court determination under a “new” Supreme
Court rule propounded after state court made its decision);
Bintz, 403 F.3d at 865-67 (explaining that Crawford constitutes
“new” Supreme Court precedent under Teague and should
not be applied retroactively).
10 No. 09-1666
ability determination. In order to satisfy the Sixth Amend-
ment, the state must have acted in good faith to obtain
the declarant’s presence, and good faith requires under-
taking diligent and reasonable measures. Roberts, 448
U.S. at 74-75. The requirement is “not that the govern-
ment must do everything it can to get a witness to
testify, only that it make a reasonable, good faith effort
to get the witness into court.” United States v. Reed, 227
F.3d 763, 767 (7th Cir. 2000). Ultimately, the “question is
whether the witness is unavailable despite good-faith
efforts undertaken prior to trial to locate and present that
witness.” Roberts, 448 U.S. at 74. On the other hand, a
“witness is not ‘unavailable’ . . . unless the prosecutorial
authorities have made a good-faith effort to obtain his
presence at trial.” Barber, 390 U.S. at 724-25.
The state appellate court found that the state’s investiga-
tion demonstrated that the state “undertook an exten-
sive search for A.S., including traveling to Waukegan.
It engaged two of its own employees as well as a detec-
tive to locate A.S.” We are unconvinced by this rea-
soning, as a forty-mile drive and the recruitment of
two employees does not render the search “extensive,”
particularly where neither the Waukegan trip nor the
extra help appeared to add much value. The extent of
the detective and advocate’s assistance was to repeat
the same investigative strategies that had proven unsuc-
cessful for the state’s investigator, including going to the
residences of A.S.’s parents and inquiring about A.S.’s
presence with the county jail, hospital, and morgue.
Indeed, the bulk of the state’s investigation into A.S.’s
whereabouts consisted of talking to her family mem-
No. 09-1666 11
bers, which is insufficient to satisfy the Confrontation
Clause here. See United States v. Hite, 364 F.3d 874, 882-83
(7th Cir. 2004) (affirming district court’s conclusion that
defendant had not made reasonable efforts to locate
witness when sole attempt to contact witness was
talking to his family members despite other available
means to locate witness). And the fact that the investi-
gator and detective contacted state departments where
there was little likelihood of finding A.S. (e.g., contacting
the morgue despite being told by A.S.’s mother that she
had spoken to her recently and simply did not know her
exact whereabouts) does not establish the state’s good
faith. See Roberts, 448 U.S. at 74 (“The law does not
require the doing of a futile act.”).
The only new information secured by the detective
and advocate concerned the ex-boyfriend in Waukegan
and A.S.’s enrollment in beauty school, neither of which
were noteworthy or particularly helpful to the investi-
gation. While the detective drove to the ex-boy-
friend’s house in Waukegan, it does not appear that
any effort was made to contact A.S.’s current boy-
friend—whom she was with just moments before the
alleged assault—or any of her other friends in the
Chicago area. And with respect to the beauty school,
there is no indication that the advocate or the detective
(to whom the advocate passed along the information)
asked for the name or location of the school, much less
made any attempt to contact the school to inquire about
whether anyone had seen A.S. In our view, the state’s
failure to investigate these leads does not comport with
a showing of reasonable good faith.
12 No. 09-1666
Given the importance of A.S.’s testimony, the state
was obligated to exert great effort to locate her. “The
more important the witness to the government’s case,
the more important the defendant’s right, derived from
the Confrontation Clause of the Sixth Amendment, to
cross-examine the witness.” United States v. Foster, 986
F.2d 541, 543 (D.C. Cir. 1993). And as the Tenth Circuit
has explained, “the more crucial the witness, the greater
the effort required to secure his attendance.” Cook v.
McKune, 323 F.3d 825, 835-36 (10th Cir. 2003); see also
United States v. Mann, 590 F.2d 361, 367 n.6 (1st Cir.
1978) (“A lesser effort might be reasonable where the
testimony goes to minor, collateral, or uncontested mat-
ters.”). A.S.’s testimony here was crucially important to
the state’s prosecution, as she was the complainant and
sole witness. And the importance of her live testimony
is underscored by the apparent credibility issues from
Cross’s first trial. As the Supreme Court has recognized,
the jury’s ability to evaluate a witness’s demeanor via
live testimony is the foremost concern of the Confronta-
tion Clause. See Barber, 390 U.S. at 721 (“[T]he primary
object of [the Confrontation Clause is to afford the
accused] . . . an opportunity not only of testing the recol-
lection and sifting the conscience of the witness, but
of compelling him to stand face to face with the jury in
order that they may look at him, and judge by his de-
meanor upon the stand and the manner in which he
gives his testimony whether he is worthy of belief.”). Here,
A.S.’s testimony at the first trial was pause-filled and
evasive, which may have adversely affected the jury’s
impression of her, as is perhaps demonstrated by the
No. 09-1666 13
verdict of not guilty on the kidnapping count and the
lack of a verdict on the sexual assault counts. The ques-
tions surrounding A.S.’s demeanor and credibility thus
became the gravamen of the second trial. And without
her live testimony, the second jury was forced to
make a credibility determination based on the cold tran-
script, which it could not objectively do, particularly
given the law clerk’s more fluid and inflected reading of
the transcript.
In light of A.S.’s importance as a witness, the state
should have taken other proactive measures to secure
her presence at the second trial, particularly given that
the state had ample notice of A.S.’s tremendous re-
luctance to testify again. A.S. had expressed her fears
about testifying as early as the conclusion of the first
trial, at which point she indicated that she was scared
to testify again, but eventually agreed to do so. As of
March 3 (26 days before Cross’s second trial was to
begin), the state knew that there was little chance of
A.S. testifying: The state’s investigator who had gone
to A.S.’s residence could not locate her and was told by
A.S.’s mother that A.S. was “very fearful and very con-
cerned” about testifying again. Even after receiving
this information, the state took no additional steps to
locate A.S. until March 10, when A.S.’s mother in-
formed the state’s attorney’s office that she had ap-
parently run away the day before.
“If there is a possibility, albeit remote, that affirmative
measures might produce the declarant, the obligation
of good faith may demand their effectuation.” Burns v.
14 No. 09-1666
Clusen, 798 F.2d 931, 937 (7th Cir. 1986). One such
measure available to the state was to subpoena A.S.
immediately after it learned of her reluctance to testify.
We do not believe that the state is required to subpoena
every reluctant witness in order to adhere to the
Sixth Amendment, but, here, where A.S. was a critical
witness and the state had ample notice of her reluctance
to testify and her proclivity to disappear without
informing anyone of her whereabouts, the state should
have issued a subpoena to secure A.S.’s presence at the
second trial. Supreme Court precedent supports the use
of such a court process to obtain the presence of cer-
tain material witnesses. See Roberts, 448 U.S. 56 (finding
unavailability after witness disregarded five subpoenas
to appear in court); Barber, 390 U.S. 719 (finding that
state’s failure to attempt to utilize court process to
secure presence of witness incarcerated in federal
prison violated habeas petitioner’s Sixth Amendment
rights); Berger v. California, 393 U.S. 314 (1969) (finding
that state’s failure to subpoena witness and defendant’s
lack of opportunity to cross-examine witness violated
defendant’s Sixth Amendment rights). We have held
that the government’s use of subpoenas or material
witness arrest warrants is strong evidence of good faith.
See, e.g., United States v. Ochoa, 229 F.3d 631, 637 (7th
Cir. 2000) (finding that government’s search for wit-
ness—including securing material witness arrest warrant
and interviews with his employer, landlord, and other
individuals—constituted a reasonable, good faith effort).
We do not lightly reach our conclusion that the state
court unreasonably applied federal law, but under the
No. 09-1666 15
circumstances of this case, where A.S.’s testimony was
critical and the state neglected to subpoena her despite
knowing that she was extremely reluctant to testify,
we find that the state did not sufficiently demonstrate
that it acted in good faith. Similarly, the state’s duplica-
tive efforts and its failure to more thoroughly investigate
were also insufficient to protect Cross’s Sixth Amend-
ment rights. As such, the state trial court and appellate
court unreasonably applied federal law in determining
that A.S. was unavailable.
III. CONCLUSION
We R EVERSE the judgment of the district court. The writ
of habeas corpus is G RANTED unless the State of Illinois
elects to retry Cross within 120 days of issuance of this
court’s final mandate, or of the Supreme Court’s final
mandate.
1-13-11