Petition for Writ of Certiorari — Baiani v. United States

Supreme Court, US,

FLiLLE D

| |

56 - 1308 | Feg 2 BET

JOSERK F. SPAMOL, IR.

NO.

IN THE

Supreme Court of the Hnited States

OCTOBER TERM, 1986

FARIED BAIANI,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

CLINARD J. HANBY

HAYNES & FULLENWEIDER

A Professional Legal Corporation

4300 Scotland

P. O. Box 701068

Houston, Texas 77270-1068

Attorneys for Petitioner

Alpha Law Brief Co., Inc.— 8748 Westpark — Houston, Texas 77063 — 789-2000

I

QUESTION PRESENTED FOR REVIEW

What corroborating circumstances are required of the

out-of-court statements against the penal interest of a

third party when such statements by that third party are

offered in evidence to exculpate the accused in a criminal

case?

iT

TABLE OF CONTENTS

TABLE OF AU TIO Bae 66 savas ks sees ene eee

CJPEESEAPNS RAP sks ss: chante tee eae eens

STATEMENT OF JURISDICTION 25.5 sc0ccetsnwcees

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED EN TeRS CAS. 2 feiss ies sakes suena

ERRONEOUS INTERPRETATION OF FEDERAL

RULE OF EVIDENCE 804(b)(3) BY THE COURTS

BERAPW 6p csnwsinn has sos Rew eRe eee ee

CONCLUSION ANE PATER «oc c5s cd oaske eee

CERTIFICATE OF SRRVGCS: sos 6anceu te eee

APPENDICES:

A. OPINION OF THE COURT OF APPEALS ....

B. RULING OF THE DISTRICT COURT .......

C. JUDGMENT OF THE COURT OF APPEALS ..

D. ORDER OF THE COURT OF APPEALS OVER-

RULING MOTIONS FOR REHEARING ......

Ill

TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution, Amend. V................. 2

United States Constitution, Amend. VI ................ 2

United States Constitution, Amend. XIV .............. 2

Federal Rule of Evidence 804(b)(3) ................... passim

Federal Rule of Evidence 805(b)(5) .................. 18

CASES Page

Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038,

es | a ee a ee rr 10, 20, 21, 22

Cool v. United States, 409 U.S. 100, 93 S. Ct. 354, 34

a vc wee ube asacie Mune: 16

Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449, 57

I es dee wkawcncbanacne 14

Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23

ae dla ue bee do Uk a ook 06a 0s 19

Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L.Ed.2d

ey ns ened aly a obec ke ki km. 16,17

Lowery v. Maryland, 401 F. Supp. 604 (D. Md. 1975),

afd without opinion, 532 F.2d 750 (4th Cir.), cert.

Se ee, OD PE ROPGD | 5 koe van cuccavaacnccae 20

Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53

BE MESS og cnc aa be cuscvcdacunsccctewsce 16

Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99

aL as os wabde ces roca 16

Parker v. Randolf, 442 U.S. 62, 99 S. Ct. 2132, 60 L.Ed.

ea a ang o bug 6 odd wie deh & mw o'e amu cs 16

People v. Edwards, 396 Mich. 551, 242 N.W.2d 739 (1976) 22

United States v. Atkins, 558 F.2d 133 (3rd Cir.), cert.

MU MU OPE, BUTE CEGEOD cic cnn cndsncscavncare 19

United States v. Bagley, 537 F.2d 162 (5th Cir. 1976),

My ee Go 2 19, 23

United States v. Barrett, 539 F.2d 244 (1st Cir. 1976) .. 19, 20

United States v. Benveniste, 564 F.2d 335 (9th Cir. 1977) 17

United States v. Brandenfels, 522 F.2d 1259 (9th Cir.),

ee, eee. Gas Wo, 1053 CEO7S) . 2... ons ccc ccccce 20

United States v. Guillette, 547 F.2d 743 (2d Cir. 1976),

core, eee Gee A, B99 (2977) ... 2... ccc ccuecus 20, 22

United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29

I nck g Gans ueunhaecdaeusdac id

United States v. Hoyos, 573 F.2d 1111 (9th Cir.), cert.

ST ee OD ROOD on ok cass cacuccecvnasass 19

IV

CASES

United States v. James, 590 F.2d 575 (Sth Cir.) (en banc),

cert. dented, 442 U.S. 917 (1979) 2. cnc ccc cas ccccecns

United States v. Katsougrakis. 715 F.2d 769 (2d Cir. 1983),

cert. dented. 434 U.S. 1071 (1977) .... cence ccnnecces

United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988,

26S eee See PRO ee! was be eek sack ene eked oeedn ae

United States v. Metz, 608 F.2d 147 (5th Cir. 1979),

cert. dented. 449 US. 821 (1980) .....-...cncccccess

United States v. Pena, 527 F.2d 1356 (Sth Cir.), cert.

denied, 426 U.S. 949 (1976) ......ccccccccecvecees

United States v. Satterfield, 572 F.2d 687 (9th Cir.), cert.

dented. 439 U.S. 840 (1978) ....... ceccccccccccves

United States v. Silverstein, 732 F.2d 1338 (7th Cir. 1984)

United States v. Thomas, 571 F.2d 285 (5th Cir. 1978)

Page

20, 21

19

20

18,19

OTHER AUTHORITIES

Declarations Against Penal Interest: Standards of Admissi-

bility Under An Emerging Majority Rule, 55 B. U.

Bi SUS Se LOPE 6 kde k noua ba ase eh tet aes

Declarations Against Penal Interest: What Must Be Cor-

roborated Under The Newly Enacted Federal Rule Of

Evidence, Rule 804(b)(3), 9 Val. U. L. Rev. 421 (1975)

House Committee On The Judiciay, Report On The Federal

Rules Of Evidence, H. R. Rep. No. 650, 93rd Cong.

Ist Sess. (1973) at 16, reprinted in 1974 U.S. Cong. &

SD, A, i PER EP ETT Oe TET OR OTE rer err Cre

Letter from Senator John L. McClellan to Judge Albert B.

Maris, Committee on Rules of Practice and Procedure

(August 12, 1971), reprinted in 117 Cong. Rec. 33,642

FO i ss ph ae et

Preliminary Draft of the Proposed Rules of Evidence for

the United States District Courts and Magistrates, 46

Fake SOR SEROMA cdcnePineccUan iy hadeeaeseese en

Saltzburg, Standards of Proof and Preliminary Questions of

Pact, 27 Bee da TOU: BFe: GEGTED nib cceceurccacadar

Senate Comm. on the Judiciary Report on the Federal Rules

of Evidence, S. Rep. No. 1277, 93rd Cong., 2d Sess.

to ee rer err ee rrr errr rt ee rer reo

Subcomm. on Criminal Justice of the House Comm. on the

Judiciary, 93rd Cong, Ist Sess., Report on H.R. 5463

(oe Sh he ee Se | er ree

Supreme Court of the United States, Rules of Evidence for

United States Courts and Magistrates, 56 F.R.D. 183

COGTOR - 5. cod occ ce ceanchdae aeeedd sah eec eres

Tague, Perils of the Rulemaking Process: The Development,

Application and Unconstitutionality of Rule 804(b)(3)’s

Penal Interest Exception, 69 Geo. L. J. 851 (19813 ....

Page

24

14

82, 35, 16

10, 11, 23

17

15

15

ET RRR as ORO 11, 12, 13, 14, 21, 22, 23, 24

The Theoretical Foundation of the Hearsay Rules, 93 Harv.

Res EP ROE a ueciciensrceccedeavee uns eeas

7 Wigmore, Evidence § 2056 (Chadbourn rev. ed. 1974) ..

NO. haces -

IN THE

Suprene Court of the Mnited States

OCTOBER TERM, 1986

FARIED BAIANI,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

To The Honorable Supreme Court of the United States:

NOW COMES FARIED BAITANI, Petitioner, and files

this Petition for Writ of Certiorari and would show as

follows:

OPINIONS BELOW

1. The opinion of the Court of Appeals for the Fifth

Circuit is unpublished and is reproduced in the appendix.

2. The ruling of the District Court for the Northern

District of Texas on the issue presented in this petition

is unpublished and is reproduced in the appendix.

2

STATEMENT OF JURISDICTION

1. The judgment of the Court of Appeals is dated

October 21, 1986.

2. A timely Motion for Rehearing was overruled on

December 4, 1986."

3. This Court has jurisdiction under 28 U.S.C. § 1254.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THIS CASE

1. The Fifth Amendment to the United States Con-

stitution provides, in part: “No person shall . . . be

deprived of life, liberty, or property, without due process

of law... .”

2. The Sixth Amendment to the United States Con-

stitution provides, in part: “In all criminal prosecutions,

the accused shall enjoy the right . . . to have compulsory

process for obtaining witnesses in his favor. .. .”

3. The Fourteenth Amendment to the United States

Constitution provides, in part: “. . . nor shall any State

deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws. .. .”

4. Federal Rule of Evidence 804 provides, in part:

“(b) Hearsay exceptions. The following are not excluded

by the hearsay rule if the declarant is unavailable as a

witness:

1. The order overruling the Motion is dated November 4, but

file stamped December 4. An extension was granted. and the Motion

For Rehearing was not even filed until November 17. The November

4 date is a clerical error.

(3) Statement Against Interest. A statement which

was at the time of its making so far contrary to the

declarant’s pecuniary or proprietary interest, or so

far tended to subject him to civil or criminal liability,

or to render invalid a claim by him against another,

that a reasonable man in his position would not

have made the statement unless he believed it to

be true. A statement tending to expose the declarant

to criminal liability and offered to exculpate the

accused is not admissible unless corroborating cir-

cumstances ciearly indicate the trustworthiness of

the statement... .”

STATEMENT OF FACTS

On February 24, 1985, the Petitioner arrived at Dallas-

Fort Worth International Airport aboard Thai Airways

Flight 740. (R. III, 69). The Petitioner’s luggage in-

cluded a suitcase, a briefcase, a handbag, and a large

brown burlap sack. (R. III, 84-85). Customs Inspector

Robert Crawford inspected the Petitioner’s luggage. (R.

III, 85). He found spices and miscellaneous other items

in the handbag. (/d.). The briefcase contained ordinary

business documentation. (R. III, 86). The suitcase con-

tained clothing and jewelry. (R. III, 87). The Petitioner

had told Crawford that he was a carpet importer, so

Crawford asked if the burlap bag contained carpet. (R.

III, 81). The Petitioner responded that it contained rice

and later allegedly explained that he was bringing it home

for his mother. (/d.).’

At some point, an agricultural inspector arrived to

inspect the rice. (R. III, 88). He maffe a small slit in

2. The Petitioner denied making this statement. (R. IX, 39).

4

the burlap bag, removed some rice, and retaped the bag.

(R. III, 158-160). According to Crawford, the Petitioner

appeared nervous. (R. III, 93). As a result, Crawford

decided to x-ray the bag of rice. (Jd.). As a result of

the x-ray, four bags of heroin were found wrapped in a

towel concealed in the rice. (R. III, 97).

A few minutes later agent Edward Van Patten of the

Drug Enforcement Administration arrived on the scene.

(R. III, 206). Agent Van Patten first asked the Petitioner

where he had got the heroin, and the Petitioner shrugged

his shoulders. (R. IV, 12). In response to further ques-

tioning, the Petitioner explained that he had met an

Afghani individual at a restaurant in Delhi and had

become friends with the man. (R. IV, 15, 93). The man

had asked the Petitioner to carry the bag of rice into

the United States. (/d.). The man’s relatives were sup-

posed to contact the Petitioner and pick up the bag of

rice. (R. IV, 17). The man also gave the Petitioner

$500.00. (R. IV, 95).

The four bags of heroin were submitted to a laboratory.

and fingerprints were successfully lifted off the bags.

(R. V. 182). The fingerprints could not be identified;

they did not match the Petitioner’s fingerprints. (/d.).

An investigation of the Petitioner and of the names listed

in the address book seized from the Petitioner revealed

no prior convictions and no prior involvement with

narcotics. (R. VII, 44-58). Nevertheless, Agent Van

Patten made no effort to investigate the Petitioner’s state-

ment. (R. IV, 18; VIII, 249).

The Petitioner testified on his own behalf. He testified

that he began working for his wife’s uncle’s oriental

carpet company in June of 1984. (R. VIII, 162-163).

5

He made three trips to India to purchase curpet. The

first trip was from June to December of 1984. (R. VIII,

163). The second trip was later in December, 1984.

(R. VIII, 164). The Petitioner left on his third trip in

the first week of February, 1985. (R. VIII, 172). He

went first to Luxemburg where he met his uncle. (R.

VIII, 173). He then went to Hamburg. (/d.). From

Hambirg he went to Essen. (/d.). Finally, he went to

New Delhi, arriving there on February 18. (R. VIII,

174). In New Delhi, he met with several friends and

associates. (/d.). He met Najeeb and Jamala Asefi. (/d.).

They were Afghanis who he had earlier met in Kashmir.

(R. VIII, 175). This was in late September or early

October of 1984. (R. VIII, 177). He saw them again

briefly on his second trip in December. (R. VIII, 179).

On his third trip, he arranged to have dinner with them

in the hotel. (R. VIII, 181). During the course of the

meal, another Afghani who identified himself as Usaf

Jalal introduced himself. (R. VIII, 182).

Mr. Jalal came to visit the Petitioner again the next

day. (R. VIII, 190). They talked about different subjects.

(R. VII, 192). At one point, the Petitioner told Mr.

Jalal that all of his family had escaped from Afghanistan

except his sister. (/d.). The Petitioner expressed concern

that one of his sister’s sons was nearing military age and

would be forced to fight in the war. (R. VIII, 192).

Mr. Jalal told the Petitioner that he could get a passport

to help get the boy out of Afghanistan. The Petitioner

was hesitant, but ultimately agreed to purchase a passport.

(R. VIII, 194-195).

The Petitioner again saw Mr. Jalal a day or two later.

(R. VIII, 201). Mr. Jalal gave the Petitioner a blank

Republic of Afghanistan passport. (R. VIII, 203). At

6

about this point, the Asefis arrived at the Appellant’s

room. (R. VIII, 204). The Petitioner paid Mr. Jalal for

the passport and asked Mr. Jalal if he could be of any

service to him. (R. VIII, 205, 207). Mr. Jalal said that

he did need a favor and asked the Petitioner to take a

bag of rice to Mr. Jalal’s mother. (R. VIII, 207). The

Petitioner at first said he could not do this, but felt

obligated. (R. VIII, 209). Mr. Jalal left the room and

returned later with a large bag of rice. (R. VIII, 210).

It was a type of Indian rice which is unavailable in the

United States. (/d.). The Petitioner asked who he should

send the rice to, but Mr. Jalal explained that his family

was moving and that they would contact the Petitioner.

(R. VIII, 212). The Petitioner gave Mr. Jalal his address.

(R. VIL, 213). Mr. Jalal then gave the Petitioner $500.00

and told him to give any money that remained after

paying the weight charges to whomever picks up the

bag of rice. (R. VIII, 214). The Petitioner did not learn

that the bag contained heroin until after he was arrested.

(R. VII, 252).

Najeeb Asefi testified that he first met the Petitioner

in Kashmir twelve or thirteen months before trial. (R.

VII, 69-70). Mr. Asefi saw the Petitioner in Delhi on

February 19, 1985. (R. VII, 70-71). Mr. Asefi and his

wife again saw the Petitioner the next day at his hotel.

(R. VII, 74). There, Mr. Jalal overheard them speaking

Dari (an Afghani language) and introduced himself.

(R. VII, 75, 78). They had a general conversation, and

the Petitioner gave Mr. Jalal his room number. (R. VII,

79). Mr. Asefi next saw the Petitioner in his room at

the hotel two nights later. (R. VII, 97). Mr. Jalal was

there. (/Jd.). The Petitioner had a passport; he gave

Mr. Jalal almost $400.00 as Mr. Asefi arrived. (R. VII,

7

98-99). Mr. Jalal asked the Petitioner to take a bag of

rice to Texas to Mr. Jalal’s mother. (R. VII, 99). The

Petitioner reluctantly agreed to do so. (R. VII, 100).

Mr. Jalal did not tell the Petitioner what was in the sack:

he did not mention any contraband. (Jd.). Mr. Asefi’s

wife gave similar testimony. (R. VII, 132-149).

The Petitioner attempted to persuade the district court

to admit the confession of Mr. Khan Sayed.* Mr. Sayed

was arrested by Indian authorities on April 22, 1985.

(R. VII, 2). Shortly after his arrest, Mr. Sayed confessed.

(R. VII, 3). He stated that on February 20, 1985, he

had gone to dinner at a hotel restaurant. (DX-2-J) (not

admitted). There, he met three Afghanis who he came

to know as Faried, Zarib, and his wife. (/d.). The next

day Mr. Sayed visited Faried at the hotel. Mr. Sayed

lezrned that Faried was from Texas, U.S.A. Faried said

that he wanted a passport for his nephew, and Mr. Sayed

said that he could arrange this. (/d.). The next day,

Mr. Sayed again visited Faried and delivered the passport.

(Id.). Faried paid him $400.00 for the passport. (id.).

Mr. Sayed learned that Faried would be returning to

Texas, and asked him to deliver some rice to Mr. Sayed’s

relatives. (/d.). Faried agreed, and Mr. Sayed paid him

$500.00 for the fare. (/d.). According to Mr. Sayed,

“I did not tell Faried about this heroin concealed in the

bag of rice.” (/Jd.). At the conclusion of the statement

the Indian authorities noted that “offense is proved and

Khan Sayed is arrested.” (J/d.).

Sometime after giving his statement, Khan Sayed was

released on bond by Indian authorities. (DX-2C). De-

fense counsel was informed that Mr. Sayed had fled and

3. Apparently, this was the true name of Usaf Jalal.

was no longer available. (R. IX, 79). The Petitioner’s

brother traveled to India and made an extensive effort

to locate Mr. Sayed, but was unsuccessful. (R. VIII,

120, 126-127, 142). A teletype received by the govern-

ment on December 13, 1985, from the United States

embassy in New Delhi confirmed the fact of Mr. Sayed’s

arrest and genuineness of the confession. (R. VI, 158;

VII, 2. 3, 16). The teletype further revealed that Mr.

Sayed was scheduled for trial in India on January 13,

1986. (R. VI, 3). The Petitioner offered a certified copy

of Mr. Sayed’s confession into evidence, but the district

court sustained the government’s objections. (R. VIII,

64-74). An offer by the Petitioner to pay the expenses

for counsel for the government to travel to India and

attempt to interview Mr. Sayed was declined. (R. VII,

3, 8-9).

On appeal, the Fifth Circuit adhered to its rule that the

“fact findings” of a trial court concerning the “trust-

worthiness” of a statement against interest offered to

exculpate the accused will be upheld on appeal unless

“clearly erroneous.” In ruling that the district court’s

ruling was not clearly erroneous, the Court of Appeals

focused on the evidence in the record tending to inculpate

the defendant. Thus, the Court of Appeals noted that

the defendant’s “repeated trips through Customs following

the same mode of operation were intrinsically suspicious.”

The practical effect of the ruling of the Court of Appeals

is to permit the district court to make a preliminary ruling

on the euilt or innocence of the defendant. If the district

court believes the defendant is innocent, the exculpatory

statement is adequately corroborated, and, therefore, ad-

missible. If the district court believes that the defendant

is guilty, then its fact finding (express or implied) that

9

the exculpatory statement lacked “trustworthiness” will

‘never be “clearly erroneous,” and the statement will be

inadmissible. Needless to say, the rulings below have

serious implications for the right to trial by jury. This

is particularly true in a case like the present where the

exculpatory statement is central to the defense.

REASONS WHY WRIT SHOULD BE GRANTED

Scope and Interpretation of

Federal Rule of Evidence 804(b)(3)

This case presents an opportunity for this Court to

construe the meaning of “corroborating circumstances

[which] clearly indicate the trustworthiness of the state-

ment” in Federal Rule of Evidence 804(b)(3), thus

providing instruction and guidance for the lower federal

courts. In the present case Petitioner was indicted for

and convicted of importing and subsequently possessing

an amount of heroin in excess of one kilogram. At his

trial, Petitioner offered the out-of-court statement of a

third party which would have strongly tended to exculpate

Petitioner while simultaneously inculpating that same

third party. The district court refused to allow the state-

ment into evidence, concluding that the statement did

not provide corroborating circumstances which clearly

indicated its trustworthiness because the district court

believed that the trustworthiness of the declarant himself

was suspect. The out-of-court statement was an essential

component of Petitioner’s defensive theory. The Court

of Appeals ruled that the district court’s determination

regarding trustworthiness was not “clearly erroneous”

and, therefore, affirmed. This Court should rule that

Federal Rule of Evidence 804(b)(3) does not mandate

10

the exclusion of such statements and that any uncertainty

as to the veracity of the out-of-court declarant goes to

the weight to be accorded the statement by the trier of

fact and not to the statement’s admissibility.

This Court has previously addressed neither the correct

interpretation nor the constitutional validity of Federal

Rule of Evidence 804(b) (3). In United States v. Matlock,

415 US. 164, 177, 94 S. Ct. 988, 39 L.Ed.2d 242

(1974), Chambers v. Mississippi, 410 U.S. 284, 299

n. 18, 93 S. Ct. 1038, 35 L.Ed.2d 297 (1973), and

United States v. Harris, 403 U.S. 573, 584, 91 S. Ct.

2075, 29 L.Ed.2d 723 (1971) this Court did not im-

plicitly approve Rule 804(b)(3) as enacted because that

rule differs from the version of the rule pending at the

time of each of these decisions. Petitioner submits that,

in the absence of guidance from this Court, the Courts of

Appeals have adopted ad hoc interpretations of the rule

which are consistent neither with each other nor with

the legislative intent underlying the rule. Additionally,

some of the federal courts, including the District Court

and the Court of Appeals for the Fifth Circuit, have

adopted interpretations of the rule which undermine the

constitutional protections afforded to the accused in a

criminal proceeding.

As initially proposed by the Advisory Committte in

the Preliminary Draft, rule 804(b)(3) (originally num-

bered 8-04(b)(4)) contained no requirement that state-

ments offered to exculpate the accused be corroborated

in any manner. Committee on Rules of Practice and

Procedure of the Judicial Conference of the United States,

Preliminary Draft of the Proposed Rules of Evidence for

the United States District Courts and Magistrates, 46

F.R.D. 161. 378 (1969) (hereafter Preliminary Draft).

il

Indeed, the Advisory Committee rejected fears concerning

the possibility of fabrication either of the fact of making

the statement or in its contents. Advisory Committee

Note to Preliminary Draft, supra, at 385. SEE TAGUE.

PERILS OF THE RULEMAKING PROCESS: THE

DEVELOPMENT, APPLICATION AND UNCONSTI-

TUTIONALITY OF RULE 804(b)(3)’S PENAL INTER-

EST EXCEPTION, 69 Geo. L.J. 851, 868-69 (1981)

(hereafter TAGUE). In responding to objections by the

Department of Justice that there should be no hearsay

exception for statements against the declarant’s interest,

Professor Cleary commented:

[The problems of contrived or boastful statements

are] aspects [that] were carefully considered by the

Advisory Committee, particularly against the back-

ground of the Maryland decisions . . . , and the

decision was reached that they were problems of

weight and not appropriate grounds for exclusion.

Similar considerations call for rejection of the De-

partment’s proposal that corroboration be required

as a condition to admissibility.

Preliminary Draft of the Proposed Federal Rules of

Evidence, (Public’s) Suggestions with Reporter’s

Comments, at 191 (on file at Judicial Conference),

quoted in TAGUE, supra, at 870-71.

Thus the Advisory Committee clearly adopted the position

that a “court should not condition the admission of a

defense-offered statement on separate proof that the

declarant had spoken and had spoken truthfully.”

TAGUE, supra, at 871.

The Revised Draft, rule 804(b)(3) (still numbered

804(b)(4) at that poini) still provided for no corrobora-

tion. However, Senator John L. McClellan wrete to the

12

Chairman of the Committee on August 12, 1971, ex-

pressing concerns that the Proposed Federal Rules “would

seriously impair the administration of justice in the United

States,” his primary objection focusing upon the penal

interest exception to the hearsay rule. LETTER from

SENATOR JOHN L. McCLELLAN to JUDGE AL-

BERT B. MARIS, COMMITTEE ON RULES OF

PRACTICE AND PROCEDURE (August 12, 1971),

reprinted in 117 CONG. REC. 33,642 (1971) (hereafter

McClelland Letter). Fearing that legislation proposed by

Senator McClellan could endanger Congressional action

on the rules the Advisory Committee had been working

on since 1965, the Committee members were willing to

compromise on certain items to minimize potential oppo-

sition. See TAGUE, supra, at 873-99. Senator McClellan

acknowledged that federal law should be changed to admit

certain statements against the penal interest of the declar-

ant, but expressed the view that the proposed rule went

too far. McClellan Letter, supra, at 33,647. Statements

made by Committee members clearly indicate that the

Committee as a whole viewed the corroboration require-

ment as superfluous because such statement would in-

herently bear surrounding indicia of reliability in nearly

all circumstances. The Committee apparently viewed the

corroboration requirement as “a bargaining chip that lacked

substantive merit.” TAGUE. supra, at 876. Unfortunately.

the Committee did not resolve how a defendant satisfied

the corroboration requirement. /d.

Pursuant to ongoing discussions with Senator McClellan,

and in the face of ongoing criticism from the Department

of Justice, the Committee adopted a “simple corrobora-

tion” addition to the rule, and incorporated in the second

paragraph to the NOTE to the Revised Draft:

13

The requirement of corroboration is included as a

safeguard against fabrication. Since the statement

will be offered by an accused, the situation is not

adopted to rulings in terms of the weight of the

evidence. Cf. Rule 406(a). Also, it should be noted

that corroboration may consist of testimony of in-

nocence by the accused, thus presenting a situation

quite different from the requirement that testimony

of an accomplice or a confession be corroborated.

Advisory Committee Amendments to Revised Draft.

September 3-5, 1971, at 130 (presented to Standing

Committee at its meeting of September 30-October

1, 1971) (unpublished).

Despite renewed objections by the Justice Department,

the Standing Committee returned Rule 804(b)(4) to the

Supreme Court without changing the simple corrobora-

tion language. The Supreme Court promulgated the

Supreme Court Draft with Rule 804(b)(4)_ still un-

changed on November 20, 1972. The Special Subcom-

mittee on Reform of Federal Criminal Laws (later re-

named the Subcommittee on Criminal Justice) of the

House Committee on the Judiciary altered the second

sentence of the rule, setting forth the present wording.

Without explanation, the Subcommittee rejected “simple

corroboration” and (arguably without understanding the

import of its choice of phraseology) chose instead to re-

quire circumstances “clearly” corroborating the “trust-

worthiness” of the statement. TAGUE, supra, 858-92.

In detailing the development of the corroboration re-

quirement one has considerable difficulty explaining how

a court should interpret that requirement. Throughout

the development of the requirement, the Advisory and

Standing Committees made little effort to explain what

was to be corroborated and by what quantum of evidence.

14

In its Note to the Supreme Court Draft, for example,

the Standing Committee said only that the “simple cor-

roboration” test should be construed in such a manner

as to effectuate “its purpose of circumventing fabrication.”

Standing Committee Note to Supreme Court Draft, at 327.

The vagueness of this explanation confirms both the

Standing Committee’s reluctance to add the requirement

and its apparent hope that the requirement would be

meaningless. TAGUE, supra, at 947-48, n. 482. Similarly,

the House Subcommittee never discussed how courts

should interpret its version of the corroboration require-

ment, except indirectly by concluding that the trial court

in Donnelly v. United States, 228 U.S. 243, 33 S. Ct.

449, 57 L.Ed. 829 (1913). should have admitted the

declarant’s statement. HOUSE COMMITTEE ON THE

JUDICIARY. REPORT ON THE FEDERAL RULES

OF EVIDENCE. H. R. REP. NO. 650, 93RD CONG.

IST SESS. (1973). at 16. reprinted in 1974 U.S. CONG.

& AD. NEWS 7075, 7090 (result in Donnelly, in which

circumstances “plainly indicated reliability,” would be

changed by rule 804(b)(3)). Thus, there is no clear

interpretation as to the necessary requisites for the rule's

corroboration requirement.

The language “clearly indicate” is not used elsewhere

in the Federal Rules of Evidence. Moreover, the Sub-

committee’s position on Donnelly appears to be incon-

sistent with its apparent intent to increase the defendant's

burden of proof. TAGUE, supra, at 948-49. Donnell)

would provide an opponent of the penal interest exception

with perhaps the best example of a case in which the

trial court should not have admitted the statement. In

Donnelly, there is no evidence to check the veracity of

the witness who would have testified about the declarant’s

15

purported statement and only questionable evidence to

link the declarant with the crime. /d., at 949.

Dean Wigmore’s explanation for the corroboration re-

quirement for accomplice testimony provides a highly

instructive analogy. He argues that at early common law

the “rule” was not a rule but an admonition to the judge

to caution the jury about the credibility of the accomplice’s

testimony. 7 WIGMORE, EVIDENCE § 2056 (CHAD.-

BOURN rev. ed. 1974). Although Congress refused to

enact Proposed Rule 105, SUPREME COURT OF THE

UNITED STATES, Rules of Evidence for United States

Courts and Magistrates, 56 F.R.D. 183, 199 (1973)

(summing up and comment by the judge), neither the

House of Representatives nor the Senate thereby intended

to forbid federal courts from continuing the federal com-

mon law practice of commenting on the weight of the

evidence. SUBCOMM. ON CRIMINAL JUSTICE OF

THE HOUSE COMM. ON THE JUDICIARY, 93RD

CONG., 1ST SESS., REPORT ON H.R. 5463 (COMM.

PRINT 1973), at 151 (refusal to adopt rule 105 does

not affect existing common law); SENATE COMM. ON

THE JUDICIARY REPORT ON THE FEDERAL

RULES OF EVIDENCE, S. REP. NO. 1277, 93RD

CONG., 2D SESS. (1974), at 24 (refusal to adopt rule

105 does not affect existing federal common law).

Senator McClellan (who appeared well satisfied with the

“simple corroboration” requirement) offered the following

suggestion:

|W]here the declarant himself had been involved in

the past in criminal offenses, [the judge should in-

struct the jury that] his statement should be received

and credited only with the utmost care because of

the special danger of perjury and the viriually uni-

16

versal experience of the untrustworthiness of such

declarations.

McClellan Letter. supra, at 33,648.

The precise wording of the Senator’s suggestion (caution

ing the jury to view defense evidence with skepticism)

might give rise to serious constitutional questions. How-

ever, in other contexts, this Court has held that an in-

struction adequately protects the defendant from untrust-

worthy evidence offered by the Government. See, e@.g.,

Parker v. Randolph, 442 U.S. 62, 73-74, 99 S. Ct. 2132,

60 L.Ed.2d 713 (1979) (plurality opinion) (instruction

that codefendant’s confession be considered only against

source avoids confrontation clause violation); Manson

v. Braithwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 53

L.Ed.2d 140 (1977) (juries intelligently measure weight

of identification evidence despite untrustworthy aspects):

Cool v. United States, 409 U.S. 100, 103-04, 93 S. Ct.

354, 34 L.Ed.2d 335 (1972) (per curiam) (discussion

of use of accomplice’s testimony): Opper v. United States,

348 U.S. 84, 95, 75 S. Ct. 158, 99 L.Ed. 101 (1954)

(severance not required despite admission of codefendant’s

incriminating statements ).

This Court has held that the government need satisfy

only a preponderance of the evidence standard to over-

come the criminal defendant's objection that he confessed

involuntarily. Lego v. Twomey, 404 U.S. 477, 487, 92

S. Ct. 619, 30 L.Ed.2d 618 (1972). One could argue

that, regardless of the government's burden of proof, the

defendant's burden should be lower than a preponderance

of the evidence. If. to warrant acquittal, the defendant

must “prove” only that a reasonable doubt exists or,

conversely, must “disprove” only that the government has

17

failed to meet its “beyond a reasonable doubt” burden,

a court should allow the defendant to introduce evidence

to establish either variation as long as the defendant

satisfied an equally low test of reliability. Lego v. Twomey,

supra, Suggests such an argument will not prevail. If the

defendant is protected sufficiently by the “beyond a

reasonable doubt” standard so that the government need

satisfy only a lower evidentiary admissibility standard,

it might follow that that guilt standard is also sufficiently

protective to oblige the defendant to satisfy the “pre-

ponderance of the evidence” standard. Irrespective of

one’s reading of Lego, supra, the current application of

corroboration requirement of the penal interest exception

clearly imposes on the defendant a burden higher than

that of a “preponderance of the evidence.” In the present

case, for example, the district court refused to admit the

statement despite three witnesses who corroborated por-

tions of the statement. Cf. SALTZBURG, STANDARDS

OF PROOF AND PRELIMINARY QUESTIONS OF

FACT, 27 STAN. L. REV. 271, 301-02 (1974) (stand-

ard no higher than “reasonable possibility” should be

imposed on defendant); TAGUE, supra, at 953-58 (court

analogies of corroboration requirement in penal interest

exception to coconspirator statements and/or voluntari-

ness of defendant’s confession erroneous for reasons cited).

To illustrate the difficulty which the Courts of Appeal

have encountered in utilizing the corroboration require-

ment of Rule 804(b)(3) some specific examples are

useful. In United States v. Benveniste, 564 F.2d 335

(9th Cir. 1977), the court examined the strength of the

government's evidence in deciding whether to admit a

penal interest exception. /d. at 341. The government's

own investigation revealed facts which provided corrobo-

ration for the statements in issue, and the appellate court

18

concluded that it was reversible error to exclude those

statements. Jd. at 341-42. In contrast, the Court of

Appeals for the Fifth Circuit has examined evidence

adduced by both sides in determining whether the state-

ment in issue was adequately corroborated. United States

v. Thomas, 571 F.2d 285, 290 (Sth Cir. 1978). In

essence, the Thomas court concluded that the corrobora-

tion requirement was satisfied because the government’s

case did not cast doubt on the statement in issue, and

its exclusion was thus reversible error. 7d. However, on

a later occasion, the Fifth Circuit decided that although

the government’s evidence corroborated some aspects of

the statement sought to be admitted, there was not sufficient

corroboration to satisfy the requirements of Rule 804(b)(3).

United States v. Metz, 608 F.2d 147, 157 (Sth Cir. 1979),

cert. denied, 449 U.S. 821 (1980). The court then proceeded

to indicate that “having failed to meet the corroboration

standards of one hearsay exception, the statement must

also fail the equivalent trustworthiness standards of Fed.

R. Evid. 804(b)(5),” indicating apparently that all hear-

say exceptions utilize precisely the same indicia of reli-

ability. Jd. Thus it would appear that in some instances

the defendant must present evidence to clearly indicate

the trustworthiness of the statement he seeks to have

admitted, while in others a defendant need only point to

weaknesses in the government’s case against him to ac-

complish the same result on appeal.

As discussed above, the House Subcommittee never

explained why it was dissatisfied with a “simple corrobora-

tion” test nor, more importantly, what it meant by the

phrase “clearly indicate.” In the absence of a congressional

explanation, courts may examine related doctrines to

provide a “general guide” for the definition of a given

19

word or phrase. Leary v. United States, 395 U.S. 6, 46

n. 93, 89 S. Ct. 1532, 23 L.Ed.2d 57 (1969) (to define

word “knowing” in criminal statute, court examined defi-

nition of “knowledge” in Model Penal Code). The lower

federal courts have struggled with the corroboration test.

See United States v. Barrett, 539 F.2d 244, 253 (lst

Cir. 1976) (rule demands circumstances solidly indicating

trustworthiness that go beyond minimal corroboration but

does not impose a standard so strict as to be utterly un-

realistic); United States v. Hoyos, 573 F.2d 1111, 1115

(9th Cir. 1978) (same result, quoting Barrett): United

States v. Satterfield, 572 F.2d 687, 693 (9th Cir.), cert.

denied, 439 U.S. 840 (1978) (corroborating circum-

stances must do more than tend to indicate the trust-

worthiness of the statement; they must clearly indicate it)

(emphasis in original); United States v. Thomas, 571

F.2d 285, 290 (Sth Cir. 1978) (declarant’s statement

exculpating defendant “given credibility’ by same cir-

cumstances statement “has additional credibility because

the possibility of fabrication, which is the rationale of

the corroboration requirement, is slight”); United States

v. Bagley, 537 F.2d 162, 167 (Sth Cir. 1976), cert.

denied, 429 U.S. 1075 (1977) (corroborating circum-

stances must show both that the statement was made by

the declarant and they must afford “a basis for believing

the truth of the matter asserted”); United States v.

Katsougrakis, 715 F.2d 769, 777 (2d Cir. 1983), cert.

denied, 464 U.S. 1040 (1984) (attending circumstances

must confirm trustworthiness of statement, specifically

rejecting Fifth Circuit approach as to credibility of the

in-court witness); United States v. Atkins, 558 F.2d 133,

135 (3rd Cir.), cert. denied, 434 U.S. i071 (1977)

(record must reveal substantial corroborating circum-

20

stances which indicate the trustworthiness of the declar-

ant’s statement): United States v. Silverstein, 732 F.2d

1338, 1347 (7th Cir. 1984) (circumstances solidly in-

dicating trustworthiness, quoting Barrett); Lowery v.

Maryland, 401 F. Supp. 604, 607 (D. Md. 1975), aff'd

without opinion, 532 F.2d 750 (4th Cir.), cert. denied,

429 U.S. 919 (1976) (“except to indicate that simple

corroboration is not enough, no clues are given as to

what constitutes corroborating circumstances”).

Because of the lack of congressional guidance, nu-

merous courts have turned to this Court’s opinion in

Chambers vy. Mississippi, 410 U.S. 284, 93 S. Ct.

1038, 35 L.Ed.2d 297 (1973), for guidance as to

the quantum of corroboration necessitated by Rule

804(b)(3). See United States v. Guillette, 547 F.2d 743,

754-55 (2d Cir. 1976), cert. denied, 434 US. 839

(1977) (relying on Chambers reasoning to assess trust-

worthiness of third-party confession); United States v.

Pena, 527 F.2d 1356, 1362 (Sth Cir.), cert. denied,

426 U.S. 949 (1976) (same); United States v. Branden-

fels, 522 F.2d 1259, 1264 (9th Cir.), cert. denied, 423

U.S. 1033 (1975) (distinguishing facts from those in

Chambers): Lowery v. Maryland, supra, (citing Chambers

for proposition that spontaneity of confession is indicium

of reliability). This Court asserted that the confessions

at issue in Chambers “bore persuasive assurances of trust-

worthiness and thus was well within the basic rationale

of the exception (to the hearsay rule) for declarations

against interest.” Chambers v. Mississippi, 410 U.S. 284,

302, 93 S. Ct. 1038, 35 L.Ed.2d 297 (1973). However,

the Chambers opinion has limitations as a guide in inter-

preting Rule 804(b)(3).

21

When this Court announced its opinion in Chambers,

the Supreme Court Draft version of Rule 804(b)(3) with

its “simple corroboration” requirement was pending before

Congress. The House Subcommitte increased the rule’s

corroboration requirement after this Court’s decision in

Chambers without explaining the relationship, if any,

between the two. See TAGUE, supra, at 965 n. 588.

One could conclude that the corroborating circumstances

in Chambers actually constituted the minimum corrobora-

tion necessary to satisfy Rule 804(b)(3), in which case

the rule’s corroboration test is constitutionally suspect.

Second, using Chambers as a guide has lead several

courts to erroneously demand that the corroborating evi-

dence match the facts in Chambers. See United States

v. Pena, 527 F.2d 1356, 1361 (Sth Cir.), cert. denied,

426 U.S. 949 (1976) (witness’ statement inadmissible

because statement not confession and witness not present

in court). See also cases cited in TAGUE, supra, at 966

n. 589. This Court intended that lower courts interpret

Chambers narrowly, but did so because the decision was

reached on constitutional rather than on _ evidentiary

grounds. Chambers, 410 U.S. at 302-03 (“Nor does our

holding signal any diminution in the respect traditionally

accorded to the States in the establishment and imple-

mentation of their own criminal trial rules and procedures.

Rather, we hold quite simply that under the facts and

circumstances of this case the rulings of the trial court

deprived Chambers of a fair trial.”) This Court did

neither weight the various factors listed in Chambers

nor indicated whether any lesser quantum of corroborating

circumstances would have required the trial court to

admit a penal interest statement on constitutional grounds.

TAGUE, supra, at 966. By focusing too narrowly on the

22

factual circumstances in Chambers, a court might too

easily err by requiring equivalent circumstances. /d.

This Court in Chambers stressed that McDonald, the

declarant in question, was available in court and could

have been called to contest the testimony regarding his

“confessions” to the crime. Chambers, 410 U.S. at 301.

Rule 804(b)(3) specifically requires that the declarant

be unavailable. A court might erroneously conclude that

if the declarant is unavailable, Rule 804(b)(3) requires

more corroboration than was present in Chambers. See,

e.g., United States v. Guillette, 547 F.2d 743, 754 (2d

Cir. 1976), cert. denied, 434 U.S. 839 (1977) (declar-

ant’s unavailability important factor in Chambers analy-

sis); TAGUE, supra, at 967.

The potential for error in applying too stringent a

test for corroboration is greatest in cases such as Cham-

bers, and the instant case, in which a single individua!

is accused of wrong-doing (one-person crime) and the

statement offered by the defense would literally substitute

the declarant for the defendant. As in Chambers, Peti-

tioner has “asserted his innocence throughout” and the

erroneously excluded statement of Khan Sayed would

have strongly corroborated that assertion of factual in-

nocence. Chambers, 410 U.S. at 287.

As the Michigan Supreme Court recognized, “the cir-

cumstances surrounding the making of a third-party state-

ment, whether ‘assuring reliability,’ ‘indicating trustworthi-

ness, or ‘rendering totally incredible,’ go to the weight

to be given the testimony, not its admissibility.” People

v. Edwards, 396 Mich. 551, 565, 242 N.W.2d 739, 745

(1976). To allow excess discretion in the trial judge’s

initial decision as to admissibility is to risk casting the

a3

judge as finder of fact and completely negating the

traditional role of the jury. The trial judge should make

findings of fact as to the credibility of the declarant and

as to the credibility and probative value of his statement.

However, in the absence of such findings an appellate

court may stretch to find a reason to justify exclusion of

a statement. See United States v. Bagley, 537 F.2d 162,

166 (5th Cir. 1976), cert. denied, 429 U.S. 1075 (1977)

(trial court could have found statement unreliable because

proof insufficient that declarant made statement) (em-

phasis supplied).

Indeed, both the Preliminary and Revised Drafts of the

rule provided that the jury would decide the trustworthi-

ness issue. The Note to the rule in those drafts explained

that “questions of possible fabrication are better trusted

to the competence of juries than made the subject of

attempted treatment by rule.” Advisory Committee Note

to Revised Draft, supra, at 444; Advisory Committee Note

to Preliminary Draft, supra, at 386. Moreover, none of

the traditional reasons advanced to explain why the judge

must determine the admissibility of certain sorts of evi-

dence justify transferring the jury’s role to the judge.

Commentators have long argued that judges and not

juries should resolve preliminary fact questions where

the evidence presents highly technical evidentiary ques-

tions, presents information that jury might be unable to

evaluate fairly, or presents issues that implicate a privi-

lege. See TAGUE, supra, at 972. None of these concerns

arise in the penal interest exception, except perhaps the

issue of “fair” evaluation of the evidence. This could

easily be dealt with through cautionary instructions from

the trial judge and/or a challenge by the prosecution

of the worth and reliability of the declarant’s statement

24

by cross-examining the reporting witness, investigating

the declarant. or delivering a scorching summation de-

riding both the reporting witness and the declarant.

TAGUE, supra, at 972-73.

Additionally, the rule’s corroboration requirement bur-

dens the defendant but not the government. In analogous

situations, the government need not establish the credi-

bility of other sorts of questionable evidence, such as

a defendant’s confession, a coconspirator’s implication of

the defendant, or an eyewitness’ identification, as a con-

dition of admissibility. See, e.g., United States v. James,

590 F.2d 575, 582-83 (Sth Cir.) (en banc), cert. denied,

442 U.S. 917 (1979) (Government may introduce co-

conspirator’s statement subject to later motion either to

strike or to declare mistrial). See also TAGUE, supra,

at 973 n. 631.

As currently interpreted, Rule 804(b)(3) has gen-

erated considerable adverse reaction from the commenta-

tors. NOTE, THE THEORETICAL FOUNDATION OF

THE HEARSAY RULES, 93 HARV. L. REV. 1786

(1980); TAGUE, Perils of the Rulemaking Process: The

Development, Application, and Unconstitutionality of

Rule 804(b)(3)’s Penal Interest Exception, 69 GEO. L. J.

851 (1981); NOTE, Declarations Against Penal Interest:

What Must be Corroborated Under the Newly Enacted

Federal Rule of Evidence, Rule 804(b)(3), 9 VAL. U. L.

REV. 421 (1975); NOTE, Declarations Against Penal

Interest: Standards of Admissibility Under an Emerging

Majority Rule, 55 B. U. L. REV. 148 (1975). This

comment strongly suggests that statements such as those

at issue in Petitioner’s case should be admitted into

evidence and accorded whatever weight the jury might

wish to give them.

ym

Petitioner’s case presents the strongest possible argu-

ment for the admission of the declarant’s statement,

accompanied by appropriate instructions to the jury if

necessary. The declarant, Khan Sayed, made a statement

which, if believed by the trier of fact, would literally

substitute Mr. Sayed for Petitioner in the role of the

guilty party in this “one-person crime.” In addition to

his own tesitmony, Petitioner presented the District Court

with the testimony of two individuals, Mr. Najeeb Asefi

and his wife, which corroborated numerous elements of

the declarant’s statement and of Petitioner’s version of

the entire transaction in Delhi. That Mr. Sayed had both

the motive and the opportunity to place the contraband

within the bag of rice is obvious. Petitioner made two

attempts to locate Mr. Sayed and obtain his presence

at Petitioner’s trial, both of which proved unsuccessful.

Nevertheless, the district court ruled, largely on the basis

of other evidence in the record tending to show the guilt

of the defendant, that the statement lacked “trustworthi-

ness,” and the statement was never admitted before the

jury. The Court of Appeals affirmed this ruling as not

“clearly erroneous.” Obviously, determining the trust-

worthiness of the statement was tantamount to deter-

mining the guilt or innocence of the defendant. The

statement should have been submitted to the jury, and

the jury should have been permitted to give the statement

whatever weight it chose.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner

Baiani prays that this case be reversed and remanded

for a new trial.

26

Respectfully submitted,

HAYNES & FULLENWEIDER

A Professional Legal Corporation

By:

CLINARD J. HANBY

State Bar =08880500

4300 Scotland

P. O. Box 701068

Houston, Texas 77270-1068

(713) 868-1111

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that three true and correct copies of

the foregoing Petition for Writ of Certiorari were served

on The United States Solicitor General, Department of

Justice, Washington, D.C. 20530, —_____

U.S. Attorney, 515 Rusk, 12th Floor, Houston, Texas

ff, a | a

1987.

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 86-1081

Summary Calendar

(D.C. Docket No. CR-4-85-32-E)

UNITED STATES OF AMERICA,

Plaintiff-Appellee

V.

FARIED BAIANI,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

(October 21, 1986)

Before GEE, JOLLY, and HIGGINBOTHAM, Circuit

Judges.

PER CURIAM:*

This appeal from criminal convictions presents two

points for reversal and a somewhat unusual fact situation.

* Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on the

basis of well-settled principles of law imposes needless expense on

the public and burdens on the legal profession.” Pursuant to that

Rule, the Court has determined that this opinion should not be

published.

Defendant Baiani was convicted by a jury of importing

over eight pounds of heroin and of possessing it with

intent to distribute. He was apprehended with the heroin,

which was concealed in a bag of rice, when he dis-

embarked on February 24, 1985, at the Dallas/Fort

Worth International Airport (DFW) from a flight which

had originated in Bangkok. His defense was that he was

unaware that the rice bag contained contraband, that

he was simply carrying it into the United States as a

favor to a casual acquaintance who gave it to him in

New Delhi for delivery to his mother in Texas.

At trial there was evidence that on two earlier but

recent occasions Baiani had entered the United States

from India carrying or bearing agricultural produce: a

bale of cotton on December 5, 1984, and a bag of rice

on the last day of that same month. The defendant ten-

dered in evidence a purported translation from the Hindi

of a confession by one Khan Sayyad to having been the

person who passed off the drug-laden bag of rice to the

hapless defendant. This was excluded by the trial court

on grounds to be noted, and Baiani appeals that action

to us as well as the admission in evidence of the bag

of rice, which he claims should have been excluded on

fourth amendment grounds. We affirm.

Neither contention need detain us long. As for the

exclusion ‘of the supposed Sayyad confession, the trial

court correctly noted that such statements “tending to

expose the declarant to criminal liability and offered to

exculpate the accused [are] not admissible unless [among

other things] corroborating circumstances clearly indicate

the trustworthiness of the statement.” Rule 804(b)(3)

of the Federal Rules of Evidence so states, and from

3a

first to last we have applied it strictly as written. United

States v. Briscoe, 742 F.2d 842, 846 (1984) and cases

cited; United States v. Bagley, 537 F.2d 162 (Sth Cir.

1976) (McCree, J.). Determinations of the trial court

regarding the trustworthiness of such statements will be

upheld unless clearly erroneous. United States v. Briscoe,

supra at 846-7 and cases cited. This determination is not:

as the trial judge noted, Baiani’s repeated trips through

Customs following the same mode of operation were

intrinsically suspicious. Sayyad was not the name of the

person whom defendant Baiani testified gave him the rice

bag; that person was supposedly named Usaf Jalal.

Baiani’s brother was present in India at the time of the

supposed confession, the policeman who took the sup-

posed confession has never been heard from, and the

supposed “Sayyad,” after confessing to the heroin offense,

jumped bail and has vanished. These and other circum-

stances present in the record fully support the trial court’s

finding.

As for the claim of an unreasonable search of the rice

bag, conducted without probable cause, it’s plain that on

the facts of this case, the Dallas/Fort Worth International

Airport was the functional equivalent of the border. To

be sure, the aircraft landed first in Seattle on its way from

Bangkok; but Baiani’s luggage (including the rice bag)

was checked through from overseas to DFW, and neither

he nor it deplaned in the United States before they

entered the United States Customs area at DFW.

For these reasons, Baiani’s convictions are AFFIRMED.

4a

APPENDIX B

RULING OF THE

UNITED STATES DISTRICT COURT

THE COURT: Let’s take a few minutes’ break.

(Trial recesses, 10:10 a.m.)

(Trial resumes, 10:40 a.m.)

THE COURT: The Court has heard the evidence. The

Court has heard the argument of counsel concerning the

offer of admission of Defendant's Exhibits 2A through

2K inclusive. For the record, the defense has advised the

Court that there are only—that they are only offering

2B through 2J for Court purposes only and that Exhibit

2A is the only one they are offering at this time for all

purposes and to go to the jury. It may become as I recall,

2K, which is the application to get the court papers, that

could change. I mean, they might want to offer that for

all purposes. So that’s the way the Court is looking at

these exhibits.

The Court has heard the evidence. The Court has heard

the arguments. The Court has read the cases, and to

begin with, I'm going to state that the Court is admitting

all 2A through 2K for Court purposes only. The Court

is denying the admission of 2A for the jury or for all

purposes. In connection with this ruling, the Court makes

the following comments and following findings in con-

junction with the Court’s ruling in denying the admission

of Exhibits 2A through 2K as the record stands at this

point.

First, with regard to hearsay, of course. naturally in-

cluded within hearsay is not excluded under the hearsay

Sa

rule if even the part of the combined statements conform

with an exception to the hearsay rule. The letter in which

—well, it’s 2A here, which is the alleged confession and

which is joint Exhibit 1 or the Court’s Exhibit 1, con-

tains what this Court would refer to as triple hearsay.

The letter itself is hearsay, or the alleged confession. The

police report is hearsay. Sayed’s confession is hearsay.

So each statement must independently qualify under an

exception to the hearsay rule. Of course, there has been

no offer by the defendant of the police report. There has

been no attempt to offer the police report into the record.

And, of course, if it had been, Federal Rules of Evidence

803(a) specifically excludes from that exception matters

referred by police officers and other law enforcement

personnel in criminal cases. The only possible way that

it could come in is as a business record, but in order to

comply with the requirements under a business record,

there are some seven or eight requirements that have

to be established. There has been no effort to establish

the police report as a business record. As I said, the

business record hasn't even been—I mean, the police

report hasn’t even been tendered or offered for the jury

purposes, and assuming that the defendant could get by

most of the requirements are producing the report. There

is nothing to authenticate the policeman’s report. There

is no affidavit—not even an affidavit from the police-

man who wrote up the report. The defendant must get

by the second element, that Sayed had a duty to report

the information. Defendant can only get by this if he

can show that the statement was a declaration against

interest, and as I raised the question earlier, I’m not

sure this is a declaration against interest under the state

of the facts that are before the Court at this time.

6a

Now, the defendant has indicated that they are rely-

ing a great deal on the Chambers case, which is Cham-

bers versus Mississippi, 410 U.S. 284 which is a 1973

case. The Court finds that the facts in this case are

Clearly distinguishable from the facts in the Chambers

case. In the Chambers case, it involved a confession

by a third party tending to exculpate the defendant on

trial, and the supreme court reversed the trial court in

that case holding that given the corroborating circum-

stances that the declarant contests that three different

persons to include this confession was deprived of a fair

trial. In that case there were three separate individuals all

of whom were present and testified in the case. The

Court had the opportunity to pass upon the credibility

of those witnesses. In this case that’s not true. The

alleged exculpatory statement is made to an alleged po-

liceman or some law enforcement officer in India, the

circumstances of which this Court knows nothing about

except that Sayed, who made the statement, had been

arrested some two months after the incident the basis

of the trial before this Court on a charge of hashish,

the possession of hashish. The Court has no way of

knowing what was said at the time he made such—the

Statement that’s contained in Defendant’s Exhibit 2A,

whether there was any promises or any statements made

whatsoever by the police. Further, Chambers says that

this type of matters must be taken on a case by case

basis.

Also, for the record, the Chambers case was before

the Federal Rules of Evidence were promulgated that

were not now operating. The language in 803(b) re-

quiring corroborating circumstances takes care of this

concern and to take the defendant’s argument to an ex-

Ta

treme would require the Court to admit most any hear-

say statement in a criminal case if we follow the con-

tentions that are being contended for by the defendant.

And Congress explained its concern over exculpatory

statements and why it shows the language it did in writ-

ing or comprising 803(b)—because here the history

shows and Congress said in passing this rule, that quote,

“Statements tending to exculpate the accused are more

suspect and should have their admissibility conditioned

upon some further provision ensuring trustworthiness,”

end quote.

And that’s what Congress stated, and the Fifth Cir-

cuit has applied this in the case of United States versus

Bagley, B-a-g-i-e-y, which is 537 Federal Reporters Sec-

ond. The case begins on Page 162 but more particularly

on Page 166 and 167, which touches this case expressly.

This case is very much in point with the case that’s before

this Court.

In that case, the Fifth Circuit, cert was denied in 429

U.S. 1075 discussed this very provision. The Court held

that such a determination is a question of law and in

making its findings of fact to keep out the confession,

the Court recognized the need for a more stringent

test in these circumstances to guard against the danger

of fabrication. The Court said that the trial court is

given wide latitude in determining whether the cor-

roborating circumstances clearly indicate the trustworthi-

ness of the statement. This is so, naturally, because the

trial judge has the opportunity to judge the credibility

of the witnesses and to exercise the discretion that he’s

satisfied that the statement is trustworthy. Under the

state of facts before this Court at this time, this Court’s

just not willing to—is not satisiied that the alleged

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statement or confession meets the requirement of trust-

worthiness as the law requires.

The Court finds, | mean from the record in this case,

and it’s very clear, that this case occurred. The defend-

ant was arrested on February the 24th, 1985, when he

was coming through customs in New York with the bag

of rice in his possession in which the heroin was later

located to be containing in that bag of rice. What I

meant to say was that less than two months before—

and the Court finds that this defendant came through the

New York port of entry, likewise, with a container of

rice which—and I want to make it clear. This case, the

defendant came through DFW airport on February 24,

1985. On December 31, 1981, the Court finds by the

evidence that’s before the Court, that the defendant at

that time came through the New York Airport with—the

amount of rice is not known, but at least there was a

container of rice of some kind. This certainly would go

to show that this defendant—he was not unaccustomed

to carrying rice. This wasn’t the first time from this

incident that occurred in India. The two occasions with-

in which such a short period of time raise suspect in

connection with this man. Then the time of the confes-

sion by Sayed certainly has bearing on the Court. It

shows that this was some two months in the area of two

months after the defendant Sayed had been arrested.

This Court cannot—from a trustworthiness standpoint,

why would Sayed confess to another crime when being

arrested by a completely and different offense than the

one that this defendant is charged with in this Court?

Of course, the evidence shows that Sayed knew at the

time he was arrested in April of °85 that Baiani had

already been arrested and had been caught coming

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through customs. What is there to show this Court that

this wasn’t planned on the part of Sayed? The evidence

clearly shows that the defendant’s brother was in India

at the very time in question when Sayed was arrested.

The newspaper article that’s referred to—the witness

before the Court this morning said that he first learned

of Sayed’s arrest, I believe, from his brother. There is

no question as the record stands that defendant’s brother

certainly could have talked with Sayed and fully advised

of all of the matters that the defendant was in here in

the United States, what—I know this is speculation, but

I mean that goes to the trustworthiness of the statement

that’s involved.

You have got the occurrences at the hotel in New

Delhi when Sayed came there. And, incidentally, the

Court finds that this defendant—I mean that this alleged

confession came from an individual who is using different

names. There have been two different names. He has been

introduced and referred to—the witnesses before this

Court say that he introduced himself as Jalal or whatever

that name is, and the court reporter has it, and then it

turns out that the man it’s filed on in India and made

the alleged confession is a man that’s named Sayed. I

believe it’s S-a-y-e-d. Certainly, this person is going under

different names. He’s not here to testify. There is no way

that the jury can pass on the credibility of Sayed. There

is no way they can judge his demeanor or his actions

or his conduct as he has testified and determine whether

or not—what credibility, if any, they should give to a

witness under this circumstance. Also, the Court finds

that, and with the evidence before the Court, that the

defendant and Sayed or Jalal as he was known at the

time, there was some discussion of getting a passport for

10a

a nephew or relative of the defendant; that the defendant

was paying this man some four hundred dollars for the

passpoit. The circumstances of that passport are certainly

not fully developed, but at least before the Court at this

point there is a strong implication that this was not a

legitimate passport. That it was—when you’re buying a

passport, paying four hundred dollars for a passport from

an individual you had only met—allegedly according to

the facts neither knew before this transaction took place.

Also, the report says that defendant Sayed—I forgot

what it says. At least it said he used heroin, a sack or

something of this kind and that he had dealt in heroin

and that he was a user of heroin. All of this goes to the

type of individual that this alleged confession is coming

from, a user of narcotics, a dealer in narcotics, a person

who is charged with selling hashish. And I want the record

to fully show that there is no evidence before this Court

that Sayed has been charged in any way with this four

kilos of heroin that’s the subject of the case before this

Court. The only thing that Sayed is charged with is the

hashish, and that incident occurred some two months

after the incident in question. All of these things go to

the credibility of that witness or the confessor, the one

who has said, “I did this,” and the Court still—what’s

he got to lose under the facts of this case.

There is just no way that the Court can lend credibility

to this particular confession in view of the facts before

the Court. There are just too many unanswered questions.

There is just no way of knowing that this is not a setup

between the—by Sayed or by certain family members

of the defendant in this matter. And this is in no way

questioning the integrity of the two witnesses that testified

here, that have been brought here, Mr. and Mrs.—

lla

MR. COGDELL: Asefi.

THE COURT: —Asefi, because their testimony does not

corroborate anything about heroin. It does corroborate that

there is no discussion by defendant and Sayed or Jalal about

heroin. They say there was no discussion, but certainly

they are not going to discuss heroin before these witnesses

if there is some type of contended law violation or con-

spiracy going on between the defendant and Jalal and

Sayed. They are not going to discuss that in the presence

of these two witnesses that came here. They only cor-

roborate that there was a sack of rice brought in and

that there was—that he was paid five hundred dollars to

take the rice from India to the United States.

Again, I want to make that the Chambers analysis

must be done on a case by case basis. That’s what the

supreme court said. The record that’s before this Court,

including the documents regarding Sayed, 'eaves open too

many questions to permit this Court to find that the con-

fession has adequate assurance of truthfulness—of trust-

worthiness, I should say.

Again, there is no corroborating testimony to the fact

that Baiani knew nothing of the heroin. There is just

none. The testimony of the two Afghans only goes to the

fact that Baiani was going to take the rice back and he

was going to be paid five hundred dollars. There is no

way Baiani and Sayed would discuss bringing this heroin

into the United States in front of these witnesses unless

they were a part of the matter, and there is no indication

of that except there are some letters that uses general

or abstract terms, but giving it the full benefit of what

the witness says, that in no way corroborates that Baiani.

didn’t know something about the heroin being in the sack

12a

of rice. The Court finds that there is just no corroborating

circumstances to clearly indicate the trustworthiness of

the confession getting in on a declaration against interest.

The Court finds under 803(24) that there is no circum-

stantial guarantee of trustworthiness in this case as to

exhibit—Defendant’s Exhibit 2A. To admit this report

into evidence with all of the unanswered questions that

remain regarding its trustworthiness would in this Court’s

opinion fly in the face of the general purpose of the

Federal Rules of Evidence and not be in the best interest

of justice. This would not be in the best interest of justice

under the facis of this case to permit this exhibit to be

introduced. This determination is based on all of the

evidence, both before the Court and the jury. All the

evidence that this Court has heard, that’s the basis on

which this Court is making this determination, and the

Court—this determination is based on all such evidence

that has been put forth up to this point to the Court and

the Court’s credibility, determination of the witnesses as

well as the law of the supreme court and of this circuit.

Therefore, this Court in keeping with the case that

the Court's alre-dy referred to, and that’s the Bagley case,

the requirement that the corroborating circumstances

clearly indicate the trustworthiness of the statement, is

just not present. There is no clearly indicating evidence

of trustworthiness as to this document that is requested

to be admitted as Exhibit Number 2A and through the

record.

Also the Court in arriving at this decision is relying

on another Fifth Circuit case which is styled, United

States versus Albert John Pena, P-e-n-a, which is found

at 527 F.2d, Page 1356, but more particularly over on

13a

Pages 1362—61, 62, and 63, particularly on Page 1362

which involves this particular issue that’s now before

the Court.

So based upon the statements by the Court and the

findings of the Court, the Court again reiterates that there

is no evidence that establishes in the mind of this Court

that the circumstances surrounding this document clearly

indicate trustworthiness of the document, and, therefore,

it should be and it is hereby denied to be admitted into

this case as the record stands.

MR. COGDELL: One housekeeping matter on that if

I might, Your Honor. We have provided the Court—

obviously, we’re going to ask the Court include those

exhibits. For the

14a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 86-1081

Summary Calendar

D.C. Docket No. CR-4-85-32-E

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

FARIED AHMED BAIANI,

Defendant-Appellant.

(Filed December 18, 1986)

Appeal from the United States District Court for the

Northern District of Texas

Before GEE, JOLLY. and HIGGINBOTHAM,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on

appeal and was taken under submission on the briefs

on file.

ON CONSIDERATION WHEREOF. It is now here

ordered and adjudged by this Court that the judgment

of the District Court in this cause is affirmed.

October 21, 1986

ISSUED AS MANDATE: December 15, 1986

i i a

15a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 86-1081

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

FARIED AHMED BAIANI,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Texas

(Filed December 4, 1986)

ON PETITiUN FOR REHEARING

(November 4, 1986)

Before GEE, JOLLY and HIGGINBOTHAM,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

By: /s/ THOMAS GIBBS GEE

United States Circuit Judge