Tenth Circuit: “Reasonable, Good-Faith Efforts” to Find a Transient Witness Suffice for Confrontation-Clause Unavailability

Case: United States v. Barker (No. 24-7100)

Court: Court of Appeals for the Tenth Circuit

Date: 2026-08-25

1. Introduction

United States v. Barker addresses when the government may read an absent witness’s prior testimony to a jury without violating the Sixth Amendment’s Confrontation Clause. The defendant, Coker Dean Barker, was convicted in federal court of murder in Indian Country and related firearm offenses arising from the death of Mickel Kelough. A critical evidentiary dispute centered on whether the government could introduce the prior preliminary-hearing testimony of William Lozer from a related state-court proceeding.

The key issue on appeal was narrow but consequential: whether Lozer was “unavailable” for Confrontation Clause purposes—i.e., whether the government made reasonable, good-faith efforts to locate him but could not secure his presence at trial. Barker conceded the testimony was “testimonial” and that he had a prior opportunity to cross-examine Lozer; the dispute focused entirely on the adequacy of the government’s search efforts.

2. Summary of the Opinion

The Tenth Circuit affirmed Barker’s convictions, holding that the district court did not violate the Confrontation Clause by admitting Lozer’s preliminary-hearing testimony. Under the circumstances—Lozer’s transient status, stale addresses, lack of contact with family and counsel, and multiple law-enforcement efforts—the government’s search was reasonable and undertaken in good faith, even if additional steps could be imagined in hindsight.

The court also clarified two procedural points: (1) it reviewed the Confrontation Clause issue de novo; and (2) Barker preserved the issue for appeal through a pretrial motion because the district court “clearly and definitively” ruled, so Federal Rule of Evidence 103(b) did not require a renewed trial objection when the testimony was read.

3. Analysis

3.1 Precedents Cited

Standard of review and preservation

  • United States v. Ibarra-Diaz, 805 F.3d 908, 918-19 (10th Cir. 2015): The court relied on this authority to frame Confrontation Clause review as de novo. This mattered because Barker’s claim was constitutional (not merely evidentiary), and the panel treated “unavailability” as a legal determination informed by facts.
  • United States v. Hargrove, 382 F. App'x 765, 778 (10th Cir. 2010) (quoted in briefing and addressed by the court): The opinion used the quoted principle to reject the government’s attempt to recast the issue as an abuse-of-discretion evidentiary ruling.

The Confrontation Clause framework: “testimonial,” “prior opportunity,” and “unavailability”

  • Smith v. Arizona, 602 U.S. 779, 783 (2024): The panel used Smith to restate the operative test: testimonial statements by an absent witness are barred unless the witness is unavailable and the defendant had a prior opportunity to cross-examine. That formulation structured the opinion and narrowed the dispute to “unavailability.”
  • Crawford v. Washington, 541 U.S. 36, 53-54 (2004): Crawford supplied the constitutional baseline governing testimonial hearsay and cemented that cross-examination is the required safeguard when testimonial evidence is used. The court noted Ohio v. Roberts was abrogated on other grounds by Crawford, but its “good-faith efforts” unavailability standard remains relevant.
  • Michigan v. Bryant, 562 U.S. 344, 354 (2011) (quoting Crawford): The court invoked Bryant to confirm that “prior testimony at a preliminary hearing” is “testimonial” “at a minimum.” This eliminated any argument that Lozer’s prior sworn testimony was non-testimonial.

Unavailability and the “reasonable, good-faith efforts” requirement

  • Ohio v. Roberts, 448 U.S. 56, 74-76 (1980), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36: The panel treated Roberts as the principal source of the “reasonable, good-faith efforts” test and the important qualifier that the Constitution does not require efforts with a “great improbability” of locating the witness. This “not every conceivable step” principle did much of the work in rejecting Barker’s hindsight proposals (e.g., re-calling shelters, broader canvassing).
  • United States v. Burden, 934 F.3d 675, 686 (D.C. Cir. 2019): Cited to reinforce that the government bears the burden to show unavailability through reasonable, good-faith efforts.
  • Cook v. McKune, 323 F.3d 825, 835-39 (10th Cir. 2003): This was the opinion’s central Tenth Circuit comparator. Cook contributed two key points: (1) “perfunctory attempts” are insufficient; and (2) there is no per se checklist—reasonableness is evaluated under “all the circumstances.” The panel also applied Cook’s nonexclusive factors (witness importance, seriousness of crime, witness bias toward prosecution, and whether the state would have searched similarly absent prior testimony).
  • Acosta v. Raemisch, 877 F.3d 918, 927, 930 (10th Cir. 2017) (quoting Roberts): The court relied on Acosta for two related propositions: hindsight always imagines more steps, but the Sixth Amendment does not require exhausting “every possible means” of producing a witness.
  • Martinez v. Sullivan, 881 F.2d 921, 924 n.1 (10th Cir. 1989): Cited to emphasize the case-by-case, circumstances-driven nature of “reasonable” and “good-faith” efforts, rejecting rigid rules.

Contrasts used to justify affirmance

  • United States v. Rothbart, 653 F.2d 462, 466 (10th Cir. 1981): The panel contrasted this case to show what not good faith looks like—where the government itself facilitated the witness’s absence by releasing the witness from a subpoena knowing the witness would leave the country. In Barker, Lozer’s absence was not “of the government’s own making.”
  • Cook v. McKune, 323 F.3d 825, 836-37 (10th Cir. 2003) (again, as a contrast): The court highlighted the weakness in Cook’s search—no law enforcement engagement and reliance on the witness’s equivocal promise—then distinguished it because Barker involved repeated law-enforcement efforts (including multiple FBI agents) and a witness who was transient and out of contact with both family and counsel.

3.2 Legal Reasoning

The court’s path to decision:

  1. Identify the governing Confrontation Clause test: Under Smith v. Arizona and Crawford v. Washington, testimonial statements of an absent witness require (a) unavailability and (b) a prior opportunity to cross-examine.
  2. Remove undisputed elements: Lozer’s preliminary-hearing testimony was “testimonial” under Michigan v. Bryant, and Barker had a prior opportunity to cross-examine.
  3. Focus on unavailability: Applying Ohio v. Roberts and Tenth Circuit case law, the government had to show reasonable, good-faith efforts to locate Lozer.
  4. Evaluate efforts in context (no checklist): The panel used Cook v. McKune and Martinez v. Sullivan to reject per se rules and to assess the totality: the government prepared a subpoena, enlisted a county sheriff, contacted family and Lozer’s public defender, attempted an address-based locate, and deployed multiple FBI agents to check the last-known location (Tinker Air Force Base), nearby law-enforcement agencies, and shelters; it also pursued a phone number that was out of service.
  5. Reject hindsight-only alternatives: Relying on Acosta v. Raemisch and Roberts, the court concluded that additional steps Barker proposed (re-contacting shelters/family, in-person shelter visits, revisiting an old address) had a low likelihood of success given months-long loss of contact, stale addresses, and uncertain last-known location.
  6. Confirm efforts were not “perfunctory”: Comparing to United States v. Rothbart and Cook v. McKune, the panel found the government did not cause the absence and did not slacken its search merely because prior testimony existed.

3.3 Impact

  • Clarifies how “reasonable, good-faith efforts” applies to transient witnesses: The opinion signals that where a witness is homeless/transient, has no working phone, has not contacted family or counsel for months, and law enforcement checks the most plausible leads without success, the government can satisfy unavailability without an exhaustive citywide canvass.
  • Reinforces a “totality of circumstances” approach (not a checklist): By leaning on Cook v. McKune and Martinez v. Sullivan, the court discourages rigid litigation over whether one more call, one more visit, or one more database search was performed; instead, the inquiry is whether the overall effort was diligent and sensible given the information available.
  • Encourages early, documented search steps: Although the court declined to require the government to start earlier, the opinion’s careful recounting of the timeline (February to March efforts for an April trial) underscores the practical importance of a documented record showing escalating efforts and multiple sources checked.
  • Practical Confrontation Clause litigation takeaway: Defendants challenging “unavailability” will be better positioned when they can point to concrete, high-probability leads the government ignored (as opposed to speculative or low-yield steps), or to government-caused absence (as in United States v. Rothbart).

4. Complex Concepts Simplified

  • Confrontation Clause (Sixth Amendment): A constitutional right requiring that, in criminal trials, defendants can face and cross-examine the witnesses whose statements are used against them—especially when those statements are “testimonial.”
  • “Testimonial” statements: Formal statements made for use in prosecution—such as sworn testimony at a preliminary hearing. Because they resemble in-court testimony, the Constitution ordinarily requires cross-examination.
  • “Unavailability” (for Confrontation Clause purposes): Not simply that a witness is missing, but that the government tried reasonably and in good faith to secure the witness and still could not.
  • “Reasonable, good-faith efforts”: Diligent, sensible steps based on available leads; the government need not attempt every imaginable measure, especially those unlikely to work.
  • Preliminary-hearing testimony: Testimony given under oath early in a case, often to establish probable cause. If the witness later becomes unavailable and the defendant previously cross-examined the witness, that testimony may be read at trial.
  • “Kites”: Jailhouse notes. Here, they were used alongside fingerprint evidence and other incriminating evidence to support the prosecution’s case.

5. Conclusion

United States v. Barker reaffirms and concretizes a practical Confrontation Clause rule in the Tenth Circuit: when a witness is transient and effectively disappears, the government satisfies constitutional “unavailability” by undertaking reasonable, good-faith efforts targeted to the best available leads—contacting family and counsel, attempting known addresses, and using law enforcement resources—without having to exhaust every conceivable option.

The decision’s broader significance lies in its disciplined application of Ohio v. Roberts (as preserved post-Crawford v. Washington) through the Tenth Circuit’s own framework in Cook v. McKune: unavailability is a contextual diligence inquiry, not a box-checking exercise, and appellate courts will not invalidate convictions based on speculative, hindsight-driven search steps that were unlikely to locate the witness.