# Petition for Writ of Certiorari — Baiani v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1818%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 480 U.S. 919

## Text

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

8a

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

9a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1818%3A1. Public record. Not legal advice.