United States v. Donald Richard McCleskey Jr.,defendant-Appellant , 228 F.3d 640 ( 2000 )

BOGGS, Circuit Judge,

dissenting.

The court’s opinion carefully sets out the basic facts and framework for this case, down to near the bottom of page 6. However, in my opinion it thereafter goes astray, both factually and legally. A brief review of the relevant evidentiary rule is in order.

Fed R. Evid. 804(b)(3) excepts from exclusion as hearsay statements against the unavailable declarant’s own penal interest. The Supreme Court has held that the admission into evidence of an unavailable declarant’s out-of-court statement does not violate the Confrontation Clause when it “falls within a firmly rooted hearsay exception.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The Supreme Court has declined to address whether statements against penal interest do, in general, fall within that exception. See Williamson v. United States, 512 U.S. 594, 605, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). The circuits, as the Court noted, are divided on this question. But, as will be explored infra, this court has held that such statements do fall within such a firmly rooted exception.

When such a statement in addition contains material exculpating a defendant who seeks its admission, its reliability does become suspect and requires further analysis. The Rule requires that “corroborating circumstances clearly indicate the trustworthiness of the statement.” Fed.R.Evid. 804(b)(3). See, e.g., United States v. Hilliard, 11 F.3d 618, 619-20 (6th Cir.1993), cert. denied, 510 U.S. 1130, 114 S.Ct. 1099, 127 L.Ed.2d 412 (1994) (holding such a statement improperly excluded when corroborating evidence not weighed by trial court).

Conversely, the Rule requires nothing additional for admission of a statement against penal interest when it contains material that inculpates a defendant whose prosecutor seeks its admission. The Supreme Court also explicitly declined to address this circumstance. See Williamson, 512 U.S. at 605, 114 S.Ct. 2431. But many of our sister circuits have brought these statements under the umbrella of their defendant-exculpatory cousins, requiring a showing of further “indicia of reliability” to overcome a presumption that they are suspect. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 804.06[6] (Joseph M. McLaughlin ed., Matthew Bender 2d ed.2000) (citing cases).

This court has not, however, joined those circuits’ approach to this issue. Rather, we have specifically upheld the introduction of such evidence without a further reliability analysis in exactly the situation faced by McCleskey, namely, when the prosecution seeks • to admit a statement against a declarant’s penal interest that inculpates the defendant. In Neuman v. Rivers, 125 F.3d 315, our court upheld the ruling of District Judge Dug-gan allowing the introduction of a statement by a father, at his son’s trial, that he had sodomized at gunpoint a female acquaintance of the son, and fired a gun in the air; the father had been tried separately, and refused to testify since his case was on appeal. The son was on trial for criminal sexual conduct on the same occasion, as well as use of a firearm during a felony and felonious assault on yet another party. We held that “the admission of out-of-court statements of unavailable hearsay declarants pursuant to ‘firmly rooted’ exceptions to the hearsay rule does not violate the Confrontation Clause, because the statements are presumed to bear adequate indicia of reliability.” Id. at 319 (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)), and we went on to rule that “[t]he district court correctly held that [the father’s] out-of-court statements were admissible under the declaration against penal interest exception to the hearsay rule, a ‘firmly rooted’ exception.” Ibid. Further, in Gilliam v. Mitchell, 179 F.3d 990, 994, we wrote in passing of “statements constituting a declaration against interest (and thereby falling within a firmly rooted exception to the hearsay rule).... ” Dicta in that case make it clear that we would have upheld the admission of such a statement inculpating the defendant, without further reliability analysis; the holding of the case, however, was based upon a finding of harmless error.

In the instant case the declarant’s incul-pation of himself in the role of “mule” was total. There was no effort to shift this guilt. The only question was the circumstances of his transportation, and who he dealt with in this role. Thus, it seems to me that this statement classically meets the requirements of Rule 804(b)(3) in that “a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” If anything, inculpating a specific (and correct) source heightened the self-inculpation of the declarant, and made it easier to amass additional evidence of his role in the operation (further, a lie in the additional information might have been easy to detect, thus heightening the corroboration, if any were needed, of his statement). Wein-stein’s Federal Evidence, § 804.06[b], argues that “far fewer dangers are involved when the inculpatory statement does not implicate the accused in the same crime in which declarant is accused of having participated” (emphasis added), and uses the example of an admission of the theft of certain goods by the declarant, used to inculpate a person accused of receiving those stolen goods. Here, Rand confessed to carrying drugs, and the statements are to be used in the trial of a person who provided him the drugs for the transportation, a relation rather similar to the situation set out by Weinstein.

For the foregoing reasons, I respectfully dissent.