Petitioners Brief — Williamson v. United States

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Supreme Court, U.S.

FILED

MAR 4 1994

OFFICE OF THE CLERK

No. 93-5256

—"

In The

Supreme Court of the United States

October Term, 1993

FREDEL WILLIAMSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

BRIEF FOR PETITIONER

BENJAMIN S. WAXMAN

Rossins, TUNKEY, Ross, AMSEL

& Rasen, P.A.

2250 Southwest Third Avenue

Miami, Florida 33129

(305) 858-9550

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

I. Whether a post-arrest confession by an accom-

plice implicating a defendant, offered as an admission

against penal interest of an unavailable declarant under

Federal Rule of Evidence 804(b){3), bears adequate indi-

cia of reliability to render it admissible under Rule

804(b)(3) and the Sixth Amendment Confrontation

Clause?

II. Whether a post-arrest confession by an accom-

plice implicating a defendant, offered as an admission

against penal interest of an unavailable declarant under

Federal Rule of Evidence 804(b)(3), constitutes a firmly

rooted hearsay exception rendering it presumptively reli-

able and not subject to further analysis under the Sixth

Amendment Confrontation Clause?

Ill. Whether 804(b)(3)’s requirement that a state-

ment must be corroborated by circumstances clearly indi-

cating its trustworthiness, is subject to the further

requirernent of Idaho v. Wright, 497 U.S. 805 (1990), that

the only circumstances that can be considered are those

surrounding the making of the statement?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............0 eee euees

TABLE OF AUTHORITIES .........cccccccccccceess

OPINION BELOW 0. cis cccsccccccessccsesesescucun

RIRISONCTION ........05000s0esanecen seen

CONSTITUTIONAL PROVISION AND RULES

BIVOLVED oc ccccccccccccsccdcssessvessseneeeaee

STATEMENT OF THE CASE...........-sceseeeeees

SUMMARY OF ARGUMENT..............6.-.0.00 00)

ABTGUMIENT 2... ccccccccccccsssccesscesseeeenenees

I. THE ADMISSION OF HARRIS’S POST-

ARREST HEARSAY STATEMENTS VIOLATED

WILLIAMSON’S SIXTH AMENDMENT

RIGHT TO CONFRONT HIS ACCUSER .....

A. A POST-ARREST STATEMENT OF A

NON-TESTIFYING ALLEGED ACCOM-

PLICE WHICH INCRIMINATES THE

DECLARANT AND A CRIMINAL

DEFENDANT DOES NOT CONSTITUTE

A FIRMLY ROOTED HEARSAY EXCEP-

B. HARRIS’S POST-ARREST STATEMENTS

IMPLICATING WILLIAMSON DID NOT

BEAR ADEQUATE INDICIA OF

RELIABILITY TO RENDER THEM

ADMISSIBLE UNDER THE CONFRON-

TATION CLAUGE ...cccccccscccccccscses

TABLE OF CONTENTS ~- Continued

Page(s)

C. A POST-ARREST STATEMENT OF A

NON-TESTIFYING ALLEGED ACCOM-

PLICE WHICH INCRIMINATES THE

DECLARANT AND A CRIMINAL

DEFENDANT AND WAS ELICITED

THROUGH CUSTODIAL INTERROGA-

TION IS INHERENTLY UNRELIABLE.

ITS INTRODUCTION AT THE DEFEN-

DANT’S SEPARATE TRIAL NECES-

SARILY VIOLATES THE CON-

FRONTATION CLAUSE................. 30

Il. HARRIS’S POST-ARREST STATEMENTS

INCULPATING WILLIAMSON WERE INAD-

MISSIBLE AS STATEMENTS AGAINST

INTEREST UNDER FEDERAL RULE OF EVI-

a wedeegvbeccecsddccecccces 34

A. TO SECURE ADMISSION OF STATE-

MENTS IMPLICATING THE DECLAR-

ANT AND THE ACCUSED IN A

CRIMINAL CASE, THE GOVERNMENT

MUST ESTABLISH CORROBORATING

CIRCUMSTANCES CLEARLY INDICAT-

ING THE TRUSTWORTHINESS OF THE

EE 35

B. HARRIS’S POST-ARREST STATEMENTS

IMPLICATING WILLIAMSON WERE

INADMISSIBLE BECAUSE THEY WERE

NOT AGAINST HARRIS’S PENAL

ED ISLES LLL SLE 38

C. HARRIS’S POST-ARREST STATEMENTS

IMPLICATING WILLIAMSON WERE

INADMISSIBLE BECAUSE THE GOV-

ERNMENT FAILED TO ESTABLISH COR-

ROBORATING CIRCUMSTANCES

CLEARLY INDICATING THEIR TRUST-

reese see eteseccoccce ce: 45

EEGs es ccseccceesccceccccccces 46

“SY

TABLE OF AUTHORITIES

Page(s)

CASES

Bourjaily v. United States, 483 U.S. 171 (1987)........ 15

Bruton v. United States, 391 U.S. 123 (1968)...... passim

California v. Green, 399 U.S. 149 (1970) ........... 12, 36

Chambers v. Mississippi, 410 U.S. 284 (1973)

iecveuddnee ves éeteceséceevanwans 15, 17, 24, 25, 29, 38

Cruz v. New York, 481 U.S. 186 (1987) ............... 31

Davis v. Alaska, 415 U.S. 308 (1974) ............5005. 12

Donnelly v. United States, 228 U.S. 243 (1913)........ 17

Douglas v. Alabama, 380 U.S. 415 (1965)....... 15, 22, 31

Dutton v. Evans, 400 U.S. 74 (1970)........... 24, 25, 36

Florida v. Wells, 495 U.S. 1 (1991) ............ 00 eee 30

Fuson v. Jago, 773 F.2d 55 (6th Cir. 1985)......... 19, 43

Idaho v. Wright, 497 U.S. 805 (1990) ............. passim

Jennings v. Maynard, 946 F.2d 1502 (10th Cir. 1991) 20, 21

Latine v. Mann, 830 F.Supp. 774 (S.D.N.Y. 1993). ..20, 22

Lee v. Illinois, 476 U.S. 530 (1986) ............... passim

Mattox v. United States, 156 U.S. 237 (1895).......... 14

Miranda v. Arizona, 384 U.S. 436 (1966).............. 32

Morrison v. Duckworth, 929 F.2d 1180 (7th Cir.

Be hak 60.64. ddedd dey tang seh bbandeceheceescavsense 21

New Mexico v. Earnest, 477 U.S. 648 (1986)........... 31

Ohio v. Roberts, 448 U.S. 56 (1980)............... passim

TABLE OF AUTHORITIES - Continued

Page(s)

Olson v. Green, 668 F.2d 421 (8th Cir.), cert. denied,

ee id pana ute esenee es eenesess 22

Parker v. Randolph, 442 U.S. 62 (1979) ............... 31

People v. Leach, 15 Cal.3d 419, 124 Cal.Rptr. 752,

541 P.2d 296 (1975), cert. denied, 424 U.S. 916

Se dwaidurddchéedshonehhentscesensdwacndwéevens 20

People v. Nally, 134 Ill.App.3d 865, 480 N.W.2d

SP NES BN 6 Oo cone ednuecbebesesbeccesabene odes 20

Pointer v. Texas, 380 U.S. 400 (1965) ................. 12

Richardson v. Marsh, 481 U.S. 200 (1987)............. 31

State v. Abourezk, 359 N.W.2d 137 (S.D. 1984)........ 20

State v. Hansen, 312 N.W.2d 96 (Minn. 1981)......... 20

State v. Hughes, 244 Neb. 810 (1993)................. 20

State v. St. Pierre, 759 P.2d 383 (Wash. 1988)......... 20

Sussex Peerage Case, 11 Cl. & F.85, 8 Eng.Rep. 1034

Scud wh whees Gkceans ceeck buakseeedssGebuanees 17

United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978)

RR ee re eee ee er Oey en 19, 36, 37, 38

United States v. Bailey, 581 F.2d 341 (3d Cir. 1978) .... 25

United States v. Bakhtiar, 994 F.2d 970 (2d Cir. 1993) 20, 21

United States v. Boyce, 849 F.2d 833 (3d Cir. 1988)

6d aein ke a then eae ce eee tal iia otek wreien 19. 24, 27

United States v. Brainard, 690 F.2d 1117 (4th Cir.

BU 0 bien cdcceceeduduvessetecsece cacncesescuses 38

eb 66660 én dueeu nde cbousededas es ceases cunas 27

United States v. Flores, 985 F.2d 770 (5th Cir. 1993) passim

TABLE OF AUTHORITIES - Continued

Page(s)

United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990) .... 38

United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir.

Pn «0000 65605ds50cscbeeb ns enenuseaetapeetiesesas 19

United States v. Harrell, 788 F.2d 1524 (11th Cir.

BI 6ooccccucutobscnccvedvicubbsbebesneeceuss 28, 29

United States v. Harty, 930 F.2d 1257 (7th Cir. 1991) .... 38

United States v. Inadi, 475 U.S. 387 (1986)............ 14

United States v. Innamorati, 996 F.2d 456 (1st Cir.

Scucnd's sccnnceudesets bedsetuandeewsendéacecens 21

United States v. Johnson, 802 F.2d 1459 (D.C. Cir.

Pc k ccc ccccovapecdsessdedebsabsesderiedeeressec 19

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

1983), cert. denied, 464 U.S. 1040 (1984)......... 20, 37

United States v. Lilley, 581 F.2d 182 (8th Cir. 1978) 19, 43

United States v. Love, 592 F.2d 1022 (8th Cir. 1979)

sine Seb 6604usenennebecesesesdteusueeaceness 25, 27, 43

United States v. Magna-Olvera, 917 F.2d 401 (9th

Gh BD ves vcccccenccssnceustduncestsancksn 18, 24, 41

United States v. Oliver, 626 F.2d 254 (2d Cir. 1981)

peeuuleeaesneneesescnsektiawkeeeeseness 25, 27, 28, 38

United States v. Palumbo, 639 F.2d 123 (3d Cir.),

cert. denied, 454 U.S. 819 (1981) ............... passim

United States v. Riley, 657 F.2d 1377 (8th Cir. 1981),

cert. denied, 459 U.S. 111 (1983)..... 19, 24, 27, 38, 42

United States v. Robinson, 635 F.2d 363 (5th Cir.

Unit B), cert. denied, 452 U.S. 916 (1981)....27, 28, 29

United States v. Sarmiento-Perez, 633 F.2d 1092 (5th

Cir. Unit A 1981), cert. denied, 459 U.S. 834

GROUED 6 bs cccewcccenctoveccesovceusececcouesese passim

Vii

TABLE OF AUTHORITIES - Continued

Page(s)

United States v. Seeley, 892 F.2d 1 (1st Cir. 1989). .20, 37

United States v. Sokolow, 490 U.S. 1 (1989)........... 30

United States v. Taggart, 944 F.2d 837 (11th Cir.

TTT eT COTTE TUTTE TT ET eT 20, 21, 38

United States v. Vernor, 902 F.2d 1182 (5th Cir.),

cert. denied, 111 S.Ct. 301 (1990)................ 19, 22

United States v. Williams, 989 F.2d 1061 (9th Cir.

Ssbh as eWbkbbed dee dseee eeuadia oddudeuss bublus 38

United States v. York, 933 F.2d 1343 (7th Cir.), cert.

denied, 112 S.Ct. 321 (1991) ............ 20, 21, 36, 37

White v. Illinois, __ U.S. __, 112 S.Ct. 736 (1992)

bbbOG65 95450600) 08000 600000 0s 0 eeesséedees 14, 15, 25, 36

Withrow v. Williams, __ U.S. __, 113 S.Ct. 1745

INE Se ts SERS a oe DG Re, Son Aer IO Pat Sp 32

StaTuTES, RULES, AND CONSTITUTIONAL PROVISIONS

Ashameas Statute § 20-1001. ...... ccc ccccccccccccces 19

Federal Rules of Evidence

CS Ce dicen es ecuvinusdathaneecscaeend 1, 34

eos bedi abe Gent ndenes nse cwes 2, 34, 43

A 8 as a ane 34

EE ee se ee passim

Florida Statute § 90.804(2)(C) (1990)................. 19

Maine Rule of Evidence 804(b)(3) (1993)............. 19

Nevada Revised Statute Title 4 § 51.345............. 19

North Dakota Rule of Evidence 804(b)(3)............ 19

Uniform Rule of Evidence 804(b)(3)................. 19

viii

TABLE OF AUTHORITIES — Continued

Page(s)

United States Constitution

Ny SD osc pccccsecenckvececeeeesseses 30

Ey ene reer er eee rT 3

Be CN bob cscccdncesondcdcssiccsess passim

United States Code Title 28, Section 1254(1).......... 1

Vermont Rule of Evidence 804(b)(3)................. 19

OrHer AUTHORITIES

E. Crirary, McCormick ON Evipence § 279 (2d ed.

a Sadi ns HOCK OA NKRENSOMASR ESR ADRRENERSEES ESS 39

E. Creary, McCormick ON Evipence (3d ed. 1984)

NK as 5:6:o5-064% 5s Uh ce eNSEbOdE 690 Es 684s sesso aess 17

SR Ee heen ee Teer eee PS r ee rer ee e 40

H.R.Rep.No. 650, 93d Cong., 2d Sess. (1974),

reprinted in 1974 U.S. Cope Conc. & ApmIN.

EE a ee ae pe | ee PN ym ENR 18, 32, 35

Notes of Advisory Committee on 1972 Proposed

Rules, West’s Federal Criminal Code and Rules

i |<: san adias wh bees SOkeeeens Anke eenenbeeaesses 25

Notes of Conference Committee, H.Rep.No.

93-1597, West’s FeperAL CRIMINAL CODE AND

Es 6.6. ob50300060060s605500s08 060 CRS SERN 36

4 J. Weinstein & M. Bercer, WEINSTEIN’S EviDENCE

(1993)

ad ale a a a a 39

{ 804(b)(3)[03].......0...cceeeeeeees 18, 20, 32, 36, 40

TABLE OF AUTHORITIES - Continued

Page(s)

5 J. Wicmore, Evipence § 1395 (3d ed. 1940)......... 12

5 J. Wicmore, Evipence § 1476 (Chadbourn rev.

POPPE TERT eT CV TVEPUTCT ee TT oreerre rewuies 17

S.Rep.No. 1277, 93d Cong., 2d Sess. (1974),

reprinted in 1974 U.S. Cope Conc. & Apmin.

PERRET LETTS T ETE TT TT ETT Tree eer 18, 32, 36

OPINION BELOW

The judgment of the United States Court of Appeals,

Eleventh Circuit, is unpublished. J.A. 78. The evidentiary

rulings by the district court, which the court of appeals

affirmed, are also unpublished. J.A. 31-32, 35-36, 51-52.

JURISDICTION

The judgment under review was entered on Decem-

ber 23, 1992. J.A. 78. The Petitioner’s Suggestion of

Rehearing En Banc was denied on March 24, 1993. J.A. 79.

On June 16, 1993, this Court granted Petitioner’s Applica-

tion for Extension of Time to File Petition for Writ of

Certiorari to July 15, 1993. The Petition was timely filed

and certiorari was granted on January 10, 1994. J.A. 80.

Jurisdiction is invoked under 28 U.S.C. section 1254(1).

CONSTITUTIONAL PROVISION AND

RULES INVOLVED

Confrontation Clause of the Sixth Amendment to the

United States Constitution:

In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the

witnesses against him... .

Federal Rule of Evidence 801(c):

Hearsay. “Hearsay” is a statement, other than

one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove

the truth of the matter asserted.

Federal Rule of Evidence 802:

Hearsay Rule. Hearsay is not admissible except

as provided by these rules or by other rules

prescribed by the Supreme Court pursuant to

statutory authority or by Act of Congress.

Federal Rule of Evidence 804(b)(3):

(b) Hearsay exceptions. The following are not

excluded by the hearsay rule if the declar-

ant is unavailable as a witness:

(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 the declarant to civil or criminal

liability, or to render invalid a claim by the

declarant against another, that a reasonable

person in the declarant’s position would

not have made the statement unless believ-

ing 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 circum-

stances clearly indicate the trustworthiness

of the statement.

STATEMENT OF THE CASE

Fredel Williamson and Reginald Harris were charged

in the Middle District of Georgia with conspiring to pos-

sess with intent to distribute cocaine, possession with

intent to distribute cocaine, and interstate travel for the

purpose of promoting and carrying on the unlawful activ-

ity of distributing cocaine. J.A. 4-6. Harris had been

stopped by a Georgia deputy sheriff after his vehicle

veered off an interstate highway. Tr.80-83. He consented

to a search of the vehicle, which resulted in the discovery

of 19 kilograms of cocaine in two suitcases in the trunk.

Tr.89-90, 93-95, 228. Harris was arrested, interrogated

twice over the next several hours, and made various

statements implicating himself and Williamson. J.A.

20-30, 33, 36-41, 43-44; Tr.94.

Prior to trial, the government moved to sever the

defendants, recognizing that introduction of Harris's

post-arrest statements would incriminate Williamson. J.A.

7; R.27. The government acknowledged that the introduc-

tion of Harris’s statements would violate Williamson’s

Sixth Amendment rights. J.A. 7; R.27. The district judge

granted the government's motion to sever. J.A. 7-8.

At Williamson’s trial, the government called Harris

as a witness. J.A. 9. Harris immediately invoked his Fifth

Amendment privilege. J.A. 9. When he persisted in his

refusal to testify after being granted immunity, the court

held Harris in contempt. J.A. 14; R.50, 51, 52. Contrary to

the position it had taken in requesting severance, the

government then introduced Harris’s post-arrest state-

ments through DEA agent Walton. J.A. 15, 20-31, 33-34,

36-44. Williamson interposed timely hearsay and confron-

tation clause objections. J.A. 16-19, 34-36, 69-70. The dis-

trict judge overruled all objections and related motions

for mistrial. J.A. 31-32, 35-36, 51-52, 69-70.

The testimony established that after being in custody

for approximately one hour and being advised that any

cooperation he provided would be relayed to the pros-

ecuting attorney, Harris was interrogated telephonically

by DEA agent Walton. J.A. 25-27, 33, 36, 52-53. The agent

testified that during this interrogation, Harris told him

that the cocaine seized from his vehicle was acquired by

Williamson, that it belonged to Williamson, and that he

(Harris) was supposed to drop it in a dumpster later that

night in Atlanta. J.A. 37. Harris asked whether this con-

versation was being tape recorded. J.A. 25.

Harris was interrogated a second time by the agent,

this time in person, after being in custody for approx-

imately six and one-half hours. J.A. 22, 38, 43. Harris was

again told that any cooperation he provided would be

documented and relayed to the prosecutor. J.A. 26. The

agent testified that this time Harris stated he had rented

his automobile several days before and had driven it to

Ft. Lauderdale, Florida, to meet Williamson. J.A. 38.

Harris told him he acquired the cocaine in Ft. Lauderdale

from a Cuban acquaintance of Williamson who placed the

cocaine in the trunk and left written instructions on how

to deliver it. J.A. 39.

When the agent pressed Harris to assist with a con-

trolled delivery, Harris stated he had lied about the deliv-

ery to the trash dumpster, the pick-up from the Cuban,

and the note regarding the delivery instructions. J.A.

39-40, 56. The agent testified that Harris now stated he

was delivering the cocaine to Williamson in Atlanta, but

that any controlled delivery would be impossible because

Williamson had been travelling in front of him at the time

of his arrest and would have observed the entire event.

J.A. 40-41. Harris refused to provide any written state-

ment. J.A. 24. Upon the conclusion of this interrogation,

Harris requested the assistance of an attorney. J.A. 24,

29-30.

The district court addressed Mr. Williamson’s objec-

tions to admission of Harris’s hearsay statements on at

least three separate occasions. The court initially found

the statements admissible reasoning that because the

statements were voluntary, they necessarily were trust-

worthy and, thus, admissible under Rule 804(b)(3), and

not contrary to Williamson's confrontation rights. J.A. 31.

Addressing the issue a second time, the court confirmed

its prior ruling, this time reasoning Harris’s statements

were admissible as co-conspirator hearsay statements.

J.A. 35-36. Finally, the court ruled, specifically under Rule

804(b)(3), that the statements were admissible because

Harris had implicated himself, was unavailable, and there

existed “sufficient corroborating circumstances” to insure

the trustworthiness of the statements. J.A. 51-52.

Harris's post-arrest statements were clearly the most

damaging evidence against Williamson. The govern-

ment’s other evidence mainly consisted of items seized

from Harris’s rental vehicle including a piece of luggage

which bore initials corresponding with Williamson’s sis-

ter’s name, Gov.Ex.7, Tr.93, 256, an envelope addressed to

Williamson found inside the glove compartment,

Gov.Ex.11, Tr.101, a receipt in the name of Williamson’s

girlfriend also found in the glove compartment,

Gov.Ex.17, Tr.107-08, and the automobile rental agree-

ment which listed Williamson as an additional driver.

Gov.Exs.3, 5, Tr.84, 153, 301-05. No fingerprints of Mr.

Williamson were found in the vehicle or upon any of its

contents. Tr.112. The government also introduced, over

objection, the testimony of a narcotics trafficker awaiting

sentencing on two federal indictments exposing him to a

life without parole sentence. Tr.274-75, 284-87. This wit-

ness claimed he had sold cocaine to Williamson on 5 to 10

occasions, in amounts ranging from 10 to 20 kilograms,

ending approximately 18 months before the events

underlying the charges in the instant case. Tr. 275-78, 297.

The jury found Mr. Williamson guilty on all three

counts. ].A. 71. The district court adjudicated him guilty

and sentenced him to 327 months imprisonment. J.A.

71-73. He is presently in custody serving this sentence.

The United States Court of Appeals, Eleventh Circuit,

affirmed Williamson’s conviction without opinion, J.A.

78, and denied rehearing. J.A. 79.' On January 10, 1994,

this court granted Williamson's Petition for Writ of Cer-

tiorari and Motion for Leave to Proceed In Forma Pauperis.

].A. 80.

SUMMARY OF ARGUMENT

IA. The admission of Harris’s post-arrest hearsay

statements violated Williamson’s Sixth Amendment right

to confront his accuser. To comport with a defendant's

Confrontation Clause rights, in addition to demonstrating

1 While the case was pending on appeal, the government

secured a remand to the district court to address its claim that

Mr. Williamson had waived his confrontation rights by procur-

ing Harris’s silence at trial. R.96. Following an evidentiary hear-

ing, the district court concluded that Mr. Williamson had not

waived his confrontation rights. It also found, ironically, that

Harris was not a credible witness. Tr.Nov. 26 & 27, 1991; R.111.

the declarant’s unavailability, the government must dem-

onstrate that the hearsay bears adequate indicia of

reliability. Ohio v. Roberts, 448 U.S. 56, 65-66 (1980).

Reliability can be inferred where the evidence falls within

a firmly rooted hearsay exception. Otherwise, the evi-

dence must be excluded absent a showing of partic-

ularized guarantees of trustworthiness. Id.

The post-arrest statement of a non-testifying alleged

accomplice which incriminates the declarant and a crimi-

nal defendant does not constitute a firmly rooted hearsay

exception. Tne hearsay exception for statements against

interest has long been recognized but wes traditionally

limited to pecuniary and proprietary interests. Expansion

to include statements against penal interest is recent.

Particularly where such statements are elicited through

custodial interrogation, this Court has repeatedly empha-

sized their suspect nature and the grave threat they pose

to the reliability of the factfinding process. See Lee v.

Illinois, 476 U.S. 530 (1986).

Federal Rule of Evidence 804(b)(3), the exception for

statements against interest, includes statements against

penal interest. However, its legislative history reflects

that statements against penal interest which implicate the

declarant and an accused were intended to be excluded

from this exception. Although the language expressly

excluding such statements was ultimately deleted, many

decisions of the federal courts of appeals continue to hold

that these statements are inherently unreliable and do not

pass muster under the Confrontation Clause. For all of

these reasons, these statements do not constitute a firmly

rooted exception.

IB. Harris’s post-arrest statements implicating Wil-

liamson do not bear adequate indicia of reliability to

render them admissible under the Confrontation Clause.

This Court observed in Lee that the “truthfinding function

of the Confrontation Clause is uniquely thrzatened when

an accomplice’s confession is sought to be introduced

against a criminal defendant without the benefit of cross-

examination.” Id., 476 U.S. at 541. This is due to the

accomplice’s “strong motivation to implicate the defen-

dant” in order “to shift or spread blame, curry favor,

avenge himself, or divert attention to another. .. . “ Id.

“{[W]hen one person accuses another of a crime under

circumstances in which the declarant stands to gain by

inculpating another, the accusation is presumptively sus-

pect and must be subjected to the scrutiny of cross-

examination.” Id. at 451.

The facts of the instant case confirmed the presump-

tive unreliability of Harris’s hearsay statements. The

statements were made in response to custodial interroga-

tion. They were made after Harris was advised that the

prosecutor would be advised of any cooperation. Harris's

statements minimized his own involvement and ascribed

the bulk of the blame to Williamson. The statements were

inconsistent. The totality of the circumstances surround-

ing Harris’s statements failed to establish their trust-

worthiness.

IC. This Court should fashion a bright-line test

excluding from a criminal defendant's separate trial, all

post-arrest custodial statements which jointly incriminate

the declarant and the defendant. This Court has

expressed its doubt about the trustworthiness of such

statements in the strongest terms. In practice, it has never

sanctioned their admission into evidence. In the context

of joint trials of a non-testifying declarant and an incrimi-

nated defendant, this Court has consistently assumed

that such statements are inadmissible against the defen-

dant. Establishing a bright-line test excluding hearsay

statements within this narrow but common class would

add invaluable safeguards to the truthfinding function of

trials and contribute substantially to the efficient admin-

istration of justice.

IIA. Harris’s post-arrest statements inculpating Wil-

liamson were inadmissible as statements against interest

under Federal Rule of Evidence 804(b)(3). Besides this

Rule’s express requirement that a proponent demonstrate

the unavailability of the declarant and that the statement

was against the declarant’s penal interest, the Rule’s leg-

islative history reflects an implicit requirement that post-

arrest incriminatory statements of non-testifying declar-

ants be supported by particularized guarantees of trust-

worthiness. The standard is similar to the one expressly

employed by the Rule which requires similar statements

offered to exculpate a defendant to be corroborated by

circumstances clearly indicating their trustworthiness. In

the interests of simplicity and uniformity, this Court

should require the government to establish circumstances

clearly indicating trustworthiness to secure admission of

inculpatory hearsay statements, too.

IIB. Harris’s post-arrest statements implicating Wil-

liamson were inadmissible because they were not against

Harris’s penal interest. The justification for admitting

such hearsay is that a reasonable person in the declarant’s

position would not make a statement against interest

unless it were true. The Rule does not address the situa-

tion where a declaration contains both self-serving and

disserving parts. This Court’s decision in Lee, as well as

respected scholarly opinion, indicates that all self-serving

parts of such statements should be excluded.

The portions of Harris’s post-arrest statements incul-

pating Mr. Williamson were self-serving. They minimized

Harris’s role while characterizing Williamson as a princi-

pal. The statements were made after Harris was advised

that his cooperation would be relayed to the prosecutor.

Thus, the portions of his statements implicating Wil-

liamson should have been excluded.

IIC. Harris’s post-arrest statements implicating Wil-

liamson were inadmissible because the government failed

to establish corroborating circumstances clearly indicat-

ing their trustworthiness. These circumstances, according

to this Court’s decision in Idaho v. Wright, 497 U.S. 805

(1990), are limited to those immediately surrounding the

making of the statement. Thus, the same circumstances

that failed to establish trustworthiness under the Con-

frontation Clause similarly fail to establish trustworthi-

ness under Rule 804(b)(3).

ARGUMENT

I. THE ADMISSION OF HARRIS’S POST-ARREST

HEARSAY STATEMENTS VIOLATED WIL-

LIAMSON’S SIXTH AMENDMENT RIGHT TO

CONFRONT HIS ACCUSER.

Williamson’s conviction rests upon the post-arrest

hearsay statements of an uncross-examined alleged

accomplice who implicated him under circumstances

which this Court has repeatedly held are highly suspect

and render such statements presumptively unreliable.

The two statements were made after one hour and six and

one-half hours in custody, respectively. They were made

in response to police interrogation and upon repeated

assurances that any cooperation would be relayed to the

prosecutor. The statements were consistent only inas-

much as they minimized the claimed accomplice’s

involvement as a drug courier and maximized Wil-

liamson’s involvement as the purchaser, owner, and

intended recipient of the cocaine. They were, otherwise,

contradictory. The declarant refused to give a written

statement and was concerned about his oral statement

being tape recorded. He had every possible incentive to

wrongfully blame Williamson. These circumstances con-

firmed the presumptive unreliability of the hearsay.

Admitting these statements into evidence violated Wil-

liamson’s constitutional confrontation rights and compro-

mised his right to a fair trial.

The Sixth Amendment's Confrontation Clause guar-

antees the right of an accused in a criminal prosecution

“to be confronted with the witnesses against him. The

main essential purpose of confrontation is to secure for

the opponent the opportunity of cross-examination.”

Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (quoting 5

J. Wicmore, Evipence § 1395 at 123 (3d ed. 1940)). “There

are few subjects, perhaps, upon which this Court and

other courts have been more nearly unanimous than in

the expression of belief that the right of confrontation and

cross-examination is an essential and fundamental

requirement for the kind of a fair trial which is this

country’s constitutional goal.” Pointer v. Texas, 380 U.S.

400, 405 (1965).

The right to confront and cross-examine adverse wit-

nesses serves symbolic and functional goals. First, the

Confrontation Clause advances the perception of fairness

by “ensuring that convictions will not be based on the

charges of unseen and unknown - and hence

unchallengeable - individuals.” Lee v. Illinois, 476 US.

530, 540 (1986). Second, it promotes reliability in criminal

trials. As this Court observed in California v. Green, 399

U.S. 149 (1970), confrontation

(1) insures that the witness will give his state-

ments under oath - thus impressing him with

the seriousness of the matter and guarding

against the lie by the possibility of a penalty for

perjury; (2) forces the witness to submit to cross-

examination, the “greatest legal engine ever

invented for the discovery of truth”; [and] (3)

permits the jury that is to decide the defendant's

fate to observe the demeanor of the witness in

making his statement, thus aiding the jury in

assessing his credibility.

Id. at 158 (footnote omitted).

In Ohio v. Roberts, 448 U.S. 56 (1980), this Court set

forth the general framework for determining when

incriminating statements, admissible under an exception

to the hearsay rule, also satisfy the requirements of the

Confrontation Clause. As this Court restated in Idaho v.

Wright, 497 U.S. 805, 110 S.Ct. 3139 (1990):

“First, in conformance with the Framers’ prefer-

ence for face-to-face accusation, the Sixth

Amendment establishes a rule of necessity. In

the usual case... , the prosecution must either

produce or demonstrate the unavailability of,

the declarant whose statement it wishes to use

against the defendant.” . . . Second, once a wit-

ness is shown to be unavailable, “his statement

is admissible only if it bears adequate ‘indicia of

reliability.’ Reliability can be inferred without

more in a case where the evidence falls within a

firmly rooted hearsay exception. In other cases,

the evidence must be excluded, at least absent a

showing of particularized guarantees of trust-

worthiness.”

Id., 110 S.Ct. at 3146 (quoting Roberts, 448 U.S. at 65-66).

With regard to this latter requirement, Wright clarified

that in demonstrating the trustworthiness of such hearsay

statements, a court may only consider those circum-

stances surrounding the making of the statement that

rendered the declarant particularly worthy of belief, not

the totality of circumstances that may have been proved

at trial. Id. at 3148.

According to the foregoing analysis, there are two

paradigms for analyzing the admissibility of hearsay

statements for Confrontation Clause purposes. Under

both, the Confrontation Clause generally requires the

proponent to show that the declarant is unavailable? and

the statement bears adequate indicia of reliability. Wright,

110 S.Ct. at 3146. If the hearsay falls within a firmly

rooted hearsay exception, reliability may be presumed.

Id. If not, reliability must be shown from particularized

guarantees of trustworthiness derived only from those

circumstances surrounding the making of the statement

and that render the declarant particularly worthy of

belief. Id.

A. A POST-ARREST STATEMENT OF A NON-

TESTIFYING ALLEGED ACCOMPLICE

WHICH INCRIMINATES THE DECLARANT

AND A CRIMINAL DEFENDANT DOES NOT

CONSTITUTE A FIRMLY ROOTED HEARSAY

EXCEPTION.

This Court uses the term “firmly rooted” to describe

those hearsay exceptions which “rest upon such solid

foundations that admission of virtually any evidence

within them comports with the ‘substance of constitu-

tional protection.’ ” Ohio v. Roberts, 448 U.S. at 66 (quot-

ing Mattox v. United States, 156 U.S. 237, 244 (1895)).

Stated differently, firmly rooted hearsay exceptions

describe categorical situations that provide substantial

guarantees of trustworthiness. See White v. Illinois, __

U.S. __, 112 S.Ct. 736, 742 (1992). “Admission under a

firmly rooted hearsay exception satisfies the constitu-

tional requirement of reliability because of the weight

2 This Court held in United States v. Inadi, 475 U.S. 387

(1986), that unavailability is not required when the hearsay

statement is the out-of-court declaration of a co-conspirator.

accorded long-standing judicial and legislative experi-

ence in assessing the trustworthiness of certain types of

out-of-court statements.” Idaho v. Wright, 497 U.S. 805,

__, 110 S.Ct. 3139, 3147 (1990).

In determining whether a particular hearsay state-

ment falls within a “firmly rooted exception,” this Court

has looked to, inter alia, the length of time the exception

has been recognized, White, 112 S.Ct. at 742 n.8 (exception

for spontaneous declarations at least two centuries old);

Bourjaily v. United States, 483 U.S. 171, 183 (1987) (co-

conspirator hearsay exception first established in

Supreme Court over a century and a half ago); the

breadth of its acceptance, id., and whether all types of

statements which fall within the exception bear the requi-

site indicia of reliability. See Wright, 110 S.Ct. at 3147

(residual hearsay exception not firmly rooted because it

accommodates ad hoc situations in which hearsay state-

ments made); Lee, 476 U.S. at 544 n.5 (categorization of

statements as simple “declaration against penal interest”

describes too large a class for meaningful confrontation

clause analysis).

Statements against penal interest, such as the ones

Harris made against Williamson, do not fall within a

firmly rooted hearsay exception. This Court has repeat-

edly emphasized the suspect nature of these statements

and the grave threat they present to the reliability of the

fact-finding process. E.g., Lee, 476 U.S. at 541, 544-45;

Bruton v. United States, 391 U.S. 123, 136, 141-42 (1968);

Douglas v. Alabama, 380 U.S. 415, 419 (1965); see Chambers

v. Mississippi, 410 U.S. 284, 299-300 (1973). Indeed, in Lee,

the majority decision summarily rejected [llinois’s asser-

tion that the statements at issue, parts of an accomplice’s

confession which incriminated the defendant, bore suffi-

cient indicia of reliability because they fell within a firmly

rooted hearsay exception: “We reject respondent’s cate-

gorization of the hearsay involved in this case as a simple

‘declaration against penal interest.’ That concept defines

too large a class for meaningful Confrontation Clause

analysis. We decide this case as involving a confession by

an accomplice which incriminates a criminal defendant.”

Id. at 544 n.5. Accord Bruton v. United States, 391 U.S. 123,

128 n.3 (1968). Even the dissenting Justices in Lee, though

of the opinion that the hearsay exception for declarations

against interest is firmly established, recognized that

accomplice confessions which incriminate a defendant do

not fit squarely within it:

Indeed, accomplice confessions ordinarily are

untrustworthy precisely because they are not

unambiguously adverse to the penal interest of

the declarant. It is of course against one’s penal

interest to confess to criminal complicity, but

often that interest can be advanced greatly by

ascribing the bulk of the blame to one’s confed-

erates. It is in circumstances raising the latter

possibility - circumstances in which the accom-

plice’s out-of-court statements implicating the

defendant may be very much in the accom-

plice’s penal interest - that we have viewed the

accomplice’s statements as “inevitably suspect.”

Id. at 552-53 (Blackmun, J., dissenting with whom Powell

and Rehnquist, J.J., and Burger, C.J., concurred) (citation

omitted). Thus, it appears that this Court has already

rejected the notion that hearsay statements like those of

Harris fall within a firmly rooted hearsay exception. The

fact that they do not is well supported.

Although the hearsay exception for statements

against interest has long been recognized, the inclusion of

statements against penal interest is relatively recent.

Throughout the 18th Century and into the early part of

the 19th Century it was customary to admit statements

against pecuniary or proprietary interest as an exception

to the hearsay rule. 5 J. Wicmore, Evipence § 1476 at 350

(Chadbourn rev. 1974). However, in 1844, in the Sussex

Peerage Case,* the House of Lords specifically held that

the hearsay exception for declarations against interest did

not cover statements subjecting the declarant to criminal

liability. Id. at 351 n.6; E. CLeary, McCormick ON Evipence

§ 278 at 822-23 (3d ed. 1984). In Donnelly v. United States,

228 U.S. 243 (1913), this Court relied on the Sussex Peerage

Case and the “great and practically unanimous weight of

authority” in holding the out-of-court confession of an

unavailable declarant inadmissible. Id. at 274. This rule

was generally followed in this country well into the 20th

Century. 5 J. Wicmore, supra, at 352-58 and n.9; McCor-

MICK ON EvipeNnce, supra, at 823. This Court noted in Cham-

bers v. Mississippi, 410 U.S. 284 (1973), that most states

disallowed statements against penal interests from the

general “declarations against interest” exception to the

hearsay rule. Id. at 299.

The Advisory Committee Notes to the proposed 1972

Federal Rules of Evidence reflect that the common law

refused “to concede the adequacy of a penal interest” to

satisfy the traditional “statement against interest” excep-

tion. Fed.R.Evid. 804(b)(3), Notes of Advisory Committee

on 1972 Proposed Rules, West’s Federal Criminal Code

3 11 Cl. & F85, 8 Eng.Rep. 1034 (1844).

and Rules at 285 (1993). The House Committee on the

Judiciary noted that the rule eventually enacted as

804(b)(3) would “expand the hearsay limitation from its

present federal limitation to include statements subject-

ing the declarant to criminal liability... . ” H.R.Rep.No.

650, 93d Cong., 2d Sess., reprinted in 1974 U.S.Copg Conc.

& Apmin. News 7075, 7087. In expanding this limitation to

include statements against penal interest, the House

Committee specifically amended the draft of the rule

before it to exclude “a statement or confession offered

against the accused in a criminal case, made by a co-

defendant or other person implicating both himself and

the accused.” See id. This addition was not deleted until

later drafts and then only because it was deemed unnec-

essary to codify prevailing constitutional evidentiary

principles. S.Rer.No.1277, 93d Cong., 2d Sess., reprinted in

1974 U.S. Cope Conc. & Apmin. News 7051, 7068. It has

been authoritatively noted that in context, the reasoning

for the deletion means that the Rule should be interpreted

to include this language. 4 J. Weinstein & M. Bercer,

WEINSTEIN’s Evipence ¥ 804(b)(3)[03] at 804-158 (1993).

Notwithstanding expansion of the rule excepting

statements against interest from the hearsay rule to

include statements against penal interest, the question of

whether statements or confessions of a co-defendant

which implicate an accused fall within this exception

remains highly controversial. Many of the federal circuit

courts of appeals have taken the view that inculpatory

confessions of non-testifying accomplices are inadmiss-

ible because they fail to even meet Rule 804(b)(3)’s

requirement that the statements be against the declarants’

penal interest. E.g., United States v. Magna-Olvera, 917 F.2d

401, 407-09 (9th Cir. 1990); United States v. Johnson, 802

F.2d 1459, 1464-65 (D.C. Cir. 1986); Fuson v. Jago, 773 F.2d

55, 60-61 (6th Cir. 1985); United States v. Riley, 657 F.2d

1377, 1383-85 (8th Cir. 1981), cert. denied, 459 U.S. 111

(1983); United States v. Palumbo, 639 F.2d 123, 127-28 (3d

Cir.), cert. denied, 454 U.S. 819 (1981); United States v.

Sarmiento-Perez, 633 F.2d 1092, 1102 (5th Cir. Unit A 1981),

cert. denied, 459 U.S. 834 (1982); United States v. Lilley, 581

F.2d 182 (8th Cir. 1978). Other courts continue to exclude

these statements for their failure to bear adequate indicia

of reliability. E.g., United States v. Flores, 985 F.2d 770,

780-83 (5th Cir. 1993); United States v. Gomez-Lemos, 939

F.2d 326, 329-32 (6th Cir. 1991); United States v. Vernor, 902

F.2d 1182, 1187 (5th Cir.), cert. denied, 111 S.Ct. 301 (1990);

United States v. Boyce, 849 F.2d 833, 836-37 (3d Cir. 1988);

United States v. Alvarez, 584 F.2d 694, 701-02 (5th Cir.

1978). The continuing reluctance of the federal circuit

courts of appeals to admit these hearsay statements high-

lights the uncertainty of this hearsay exception as applied

to inculpatory confessions of accomplices and belies any

notion that it is firmly rooted.

Even since the promulgation of the Federal Rules of

Evidence, the states have not uniformly embraced the

notion that the hearsay exception for statements against

interest include post-arrest statements of accomplices

which implicate defendants. The evidentiary codes of

several states specifically exclude such statements.4 Other

4 Ark.Stat. § 28-1001; Me.R.Evid. 804(b)(3) (1993);

Nev.Rev.Stat.tit. 4 § 51.345; N.D.R.Evid. 804(b)(3); Vt.R.Evid.

804(b)(3); accord Uniform Rule of Evidence 804(b)(3); cf. Fla.Stat.

§ 90.804(2)(C) (1990) (provision disallowing statements

states have excluded these statements through judicial

opinions.5 The states’ divergent treatment of the issue

further indicates that the hearsay exception allowing

introduction of post-arrest statements of alleged accom-

plices which implicate criminal defendants is not firmly

rooted.

Cases from the First, Second, Seventh, Tenth, and Elev-

enth Circuit Courts of Appeals have held that the against-

penal-interest exception to the hearsay rule is firmly rooted.

United States v. Seeley, 892 F.2d 1, 2 (1st Cir. 1989); United

States v. Katsougrakis, 715 F.2d 769, 775 (2d Cir. 1983), cert.

denied, 464 U.S. 1040 (1984); United States v. York, 933 F.2d

1343, 1362-64 (7th Cir.), cert. denied, 112 S.Ct. 321 (1991);

Jennings v. Maynard, 946 F.2d 1502, 1505-06 (10th Cir. 1991);

United States v. Taggart, 944 F.2d 837, 840 (11th Cir. 1991).

These decisions are not persuasive and are in error. Kat-

sougrakis was decided before this Court’s authoritative deci-

sion to the contrary in Lee. A later panel of the Second

Circuit has questioned its vitality. United States v. Bakhtiar,

994 F.2d 970, 977-78 (2d Cir. 1993). See Latine v. Mann, 830

F.Supp. 774, 780-81 (S.D.N.Y. 1993) (statements against penal

interests not within firmly rooted hearsay exception). Seeley

simply relied on Katsougrakis to support its conclusion. See

inculpating both declarant and accused under statement against

interest exception dropped). See generally WetnsteIn’s EviDENce,

supra, at 804-164-174.

5 E.g., People v. Leach, 15 Cal.3d 419, 124 Cal.Rptr. 752, 541

P.2d 296 (1975), cert. denied, 424 U.S. 926 (1976); People v. Nally,

134 Ill.App.3d 865, 480 N.E.2d 1373 (1985); State v. Hansen, 312

N.W.2d 96 (Minn. 1981); State v. Hughes, 244 Neb. 810 (1993);

State v. Abourezk, 359 N.W.2d 137 (S.D. 1984); State v. St. Pierre,

759 P.2d 383 (Wash. 1988).

United States v. Innamorati, 996 F.2d 456, 474 n.4 (1st Cir. 1993)

(citing York for proposition that most courts have concluded

declaration against interest exception is firmly rooted).

The Seventh Circuit in York held that the declaration

against penal interest exception is firmly rooted. Id., 933

F.2d at 1363. In doing so it struggled, but failed, to

distinguish this Court’s decision in Lee and its own prior

decision in Morrison v. Duckworth, 929 F.2d 1180 (7th Cir.

1991), which held that statements inculpating a third

party “do not come within an established hearsay excep-

tion.” Id. at 1181 n.2; see United States v. Flores, 985 F.2d

770, 776 n.13 (5th Cir. 1993) (criticizing reasoning of York

and other cases finding penal interest exception firmly

rooted). Even though the court in York held that the penal

interest exception was firmly rooted, it inconsistently

found the need to evaluate the specific circumstances

surrounding the statements it was considering. Id., 933

F.2d at 1362-64. York might be best read to hold that the

against-penal-interest exception is firmly rooted as to

only those statements not made to limit the declarant’s

exposure. Bakhtiar, 994 F.2d at 977.

The Tenth and Eleventh Circuit decisions which seem

to conclude that the against penal interest exception is

firmly rooted are also unconvincing. The Tenth Circuit in

Jennings and the Eleventh Circuit in Taggart seemed to

focus on how well the hearsay statements each court was

considering, fit within the against-penal-interest hearsay

exception, instead of how well established this hearsay

exception is according to the relevant factors this Court

has identified. Jennings, 946 F.2d at 1505-06; Taggart, 944

F.2d at 940. The courts in Jennings and Taggart also found

the need to evaluate the circumstances surrounding the

making of the hearsay statements to determine reliability.

This would have been unnecessary had the hearsay

exception been firmly rooted. Id. Thus, none of these

decisions are persuasive that the against-penal-interest

hearsay exception is firmly rooted.®

B. HARRIS’S POST-ARREST STATEMENTS

IMPLICATING WILLIAMSON DID NOT

BEAR ADEQUATE INDICIA OF RELIABILITY

TO RENDER THEM ADMISSIBLE UNDER

THE CONFRONTATION CLAUSE.

In a solid line of cases, this Court has recognized that

the “truthfinding function of the Confrontation Clause is

uniquely threatened when an accomplice’s confession is

sought to be introduced against a criminal defendant

without the benefit of cross-examination.” Lee, 476 U.S. at

541 (emphasis added). In Douglas v. Alabama, 380 U.S. 415

(1965), this Court reversed the defendant’s conviction

because a confession purportedly made by the non-testi-

fying accomplice, which implicated the defendant, was

read to the jury by the prosecutor. The Court held that the

defendant's “inability to cross examine [the accomplice]

as to the alleged confession plainly denied him the right

6 The best reasoned decisions, consistent with the analyti-

cal framework suggested by the decisions of this Court, are the

ones that have found that the against-penal-interest hearsay

exception is not firmly rooted. Flores, 985 F.2d at 778-80; United

States v. Vernor, 902 F.2d 1182, 1186-87 (5th Cir.), cert. denied, 498

U.S. 922 (1990); Olson v. Green, 668 F.2d 421, 427 n.11 (8th Cir.),

cert. denied, 456 U.S. 1009 (1982); Latine v. Mann, 830 F.Supp. 774,

780-81 (S.D.N.Y. 1993).

a EE Feet me en Mee ee MO DL tT se A ee eR.

—

of cross-examination secured by the Confrontation

Clause.” Id. at 419. The holding was premised on the

understanding that “when one person accuses another of

a crime under circumstances in which the declarant

stands to gain by inculpating another, the accusation is

presumptively suspect and must be subjected to the scru-

tiny of cross-examination.” Lee, 476 U.S. at 451.

Likewise, in Bruton v. United States, 391 U.S. 123

(1968), this Court reversed the defendant’s conviction

because the jury heard his non-testifying co-defendant’s

confession which implicated him. Despite an instruction

limiting consideration of this statement to the co-defen-

dant, this Court concluded that the introduction of the co-

defendant’s uncross-examined confession violated the

defendant's right of confrontation. Id. at 135. After noting

the “inevitably suspect” credibility of an accomplice’s

inculpatory statements about his alleged co-conspirator,

this Court declared that the unreliability of such a confes-

sion is “intolerably compounded” when the alleged

accomplice “does not testify and cannot be tested by

cross-examination.” Id. at 136.

In its most recent case, this Court held in Lee v. Illinois

that the trial judge’s reliance upon the post-arrest confes-

sion of a non-testifying accomplice in sustaining the

defendant’s conviction was reversible error. In a murder

case in which only one bullet had been fired, the accom-

plice fingered the defendant as the triggerman. The Court

recognized that due to a co-conspirator’s “strong motiva-

tion to implicate the defendant” in order “to shift or

spread blame, curry favor, avenge himself, or divert

attention to another,” a co-conspirator’s post-arrest state-

ments about the defendant’s involvement in the crime

must be viewed with “special suspicion.” Id., 476 U.S. at

541, 545. “[O]nce partners in crime recognize that the ‘jig

is up,’ they tend to lose any identity of interest and

immediately become antagonists, rather than accom-

plices.” Id. at 544-45. Cf. Chambers v. Mississippi, 410 U.S.

284, 299-300 (1973) (confessions of criminal activity often

motivated by extraneous considerations and, thus, not as

reliable as statements against pecuniary or proprietary

interest).

Turning to the facts of the instant case, not only did

the government fail to demonstrate that Harris’s hearsay

statements had particularized guarantees of trustworthi-

ness, but the circumstances affirmatively established their

untrustworthiness. Foremost, declarant Harris’s state-

ments were made to the police while in custody. He was

arrested immediately following the seizure of the cocaine

from his vehicle. Tr.94. He gave his telephonic statement

to agent Walton after being in custody approximately one

hour. J.A. 33, 52. He gave his second statement to Walton

after being in custody for approximately six and one-half

hours. J.A. 22, 38, 43. The custodial setting of the inter-

rogation undermined the reliability of the statements. See

Dutton v. Evans, 400 U.S. 74, 87 (1970) (distinguishing

inculpatory statement of declarant to fellow prisoner

from those made “in the coercive atmosphere of official

interrogation” ).”

7 Accord United States v. Flores, 985 F.2d 770, 780 (Sth Cir.

1993); United States v. Magna-Olvera, 917 F.2d 401, 409 (9th Cir.

1990); United States v. Boyce, 849 F.2d 833, 836-37 (3d Cir. 1988);

United States v. Riley, 657 F.2d 1377, 1384 (8th Cir. 1981); United

States v. Palumbo, 639 F.2d 123, 127-28 (3d Cir. 1981); United

States v. Sarmiento-Perez, 633 F.2d 1092, 1093, 1102-04 (5th Cir.

SO RO, Lt Ot rename i en le OR Oe al Ae ny eo ate i tte th a atenl old 2a tn ilvaite Be sate all tee e

ee ee ls

alt st a

\ ee ee

Second, Harris’s statements were most certainly not

spontaneous, but instead were in response to police inter-

rogation. The testimony makes clear that after being

arrested and brought to the Dooley County Sheriff's

office, Harris was interrogated by state and federal

agents. J.A. 20, 25-26, 30, 36-37. He was questioned on the

telephone by agent Walton at which time he gave one

statement inculpating Mr. Williamson. He gave his sec-

ond statements in response to further interrogation

designed to set-up a controlled delivery of cocaine, at the

Macon Marshal’s Service office. Clearly, these were not

the type of “spontaneous” statements made without con-

scious thought or deliberation that might partially sup-

port a ruling admitting them. See White, 112 S.Ct. at

742-43 (spontaneous out-of-court declaration may carry

more weight with jury than in-court statement under

oath); Chambers v. Mississippi, 410 U.S. 284, 300 (1973)

(spontaneity of statement provided indicia of reliability);

Dutton, 400 U.S. at 88-89 (spontaneity of statement pro-

vided indicia of reliability).®

A third significant factor tending to negate the reliability

of Harris’s post-arrest statements is that they were made

under circumstances in which Harris had a strong incentive

to “shift or spread blame, curry favor, avenge himself, or

divert attention to another.” Lee, 476 U.S. at 545. To be sure,

Unit A 1981); United States v. Oliver, 626 F.2d 254, 261 (2d Cir.

1981); United States v. Love, 592 F.2d 1022, 1025 (8th Cir. 1979);

United States v. Bailey, 581 F.2d 341, 345 (3d Cir. 1978); Notes of

Advisory Committee on 1972 Proposed Rules, West’s Feperat

CRIMINAL Cope AND Rutes at 285 (1993).

8 Accord Palumbo, 639 F.2d at 133; Sarmiento-Perez, 633 F.2d

at 1102.

the jig was up. Harris had been arrested and was advised he

was facing federal prosecution. He had been caught cold

possessing 19 kilograms of cocaine. He was also told before

each interrogation session that any cooperation would be

relayed to the prosecutor, J.A. 25-26, ostensibly for him to

receive some benefit.? Thus, Harris had a tremendous incen-

tive to minimize his own role and shift blame to someone

else, in this case Williamson. Harris also had a strong incen-

tive to avenge himself: he was in custody while Mr. Wil-

liamson was free.

Harris apparently acted to advance these selfish

interests. After a full taste (six and one-half hours) of

police custody, he advised his captors that he was a mere

courier and the cocaine found in his vehicle was acquired

by Williamson, belonged to Williamson, and was

intended to be delivered to Williamson. By describing

Williamson as his principal and ascribing the bulk of the

blame to him, Harris shifted blame, curried favor,

avenged himself, and diverted attention to Williamson

from himself. Cf. United States v. Flores, 985 F.2d 770, 782

(5th Cir. 1993) (“Taking on the full blame for a minor role

in an offense, such as claiming to be a mere courier in a

drug conspiracy, does little to demonstrate trustworthi-

ness because the declarant still has the motive to shift the

9 The government will undoubtedly argue that because the

police did not offer a specific benefit to Harris in exchange for

his cooperation, he was not motivated to curry favor with his

interrogators. Petitioner submits that because Harris was left to

fantasize about what benefit he might possibly secure, his

incentive to curry favor was even greater than had the inter-

rogators specified the limitations upon what benefit he might

actually receive.

: ee

36 <0 ed Ah. ws

ee ee ee ee ee ee es

arent

en ade cetelion

blame to others so as to receive a lesser penalty.”). State-

ments made under these circumstances fail to justify any

reasonable belief in their trustworthiness. !°

Other circumstances surrounding Harris’s statements

further undermined their trustworthiness. During his inter-

rogation, Harris gave at least two, if not three different

stories concerning the events leading up to his arrest. J.A.

53-57. Although each of these statements tended to implicate

Williamson, the material contradictions between them

negated their trustworthiness. See United States v. Cuthel, 903

F.2d 1381, 1384 (11th Cir. 1990) (district court excluded out-

of-court statements on ground statements were not suffi-

ciently trustworthy in light of, inter alia, pattern of material

inconsistency). Harris indicated his own lack of confidence

in his statements by expressing concern that they not be

electronically recorded. He balked when he was requested to

provide a written statement. J.A. 24. His refusal to incrimi-

nate Williamson under oath at trial, despite having been

granted use immunity, suggests Harris abandoned his post-

arrest statements. Lastly, the custodial statements were made

before Harris had any contact with an attorney or his family.

See Boyce, 849 F.2d at 836. All of these circumstances, individ-

ually and cumulatively, vitiated the trustworthiness of

Harris’s custodial statements.

10 Accord Boyce, 849 F.2d at 836 (nothing in record that

indicated declarant was not motivated by a desire to curry favor

with interrogating agents); Riley, 657 F.2d at 1384; Palumbo, 639

F.2d at 128; Sarmiento-Perez, 633 F.2d at 1102 (desire to curry

favor, alleviate culpability, and for revenge might well have

been motivation to misrepresent the role of others in the crimi-

nal enterprise); Oliver, 626 F.2d at 260; Love, 592 F.2d at 1026

(“strong incentive to speak whether it be truthfully or falsely”).

The district court based its evidentiary ruling on two

cases: United States v. Robinson, 635 F.2d 363 (5th Cir. Unit

B), cert. denied, 452 U.S. 916 (1981), J.A. 31, and United

States v. Harrell, 788 F.2d 1524 (11th Cir. 1986). J.A. 47-52.

Both cases are materially distinguishable from the instant

case and fail to support its ruling. In Robinson, the court

rejected the appellants’ challenge to the district court's

admission of a co-conspirator’s post-arrest statement.

Concluding that corroborating circumstances sufficiently

indicated the trustworthiness of the statement, the court

considered the following facts: (1) the declarant was not

in custody; (2) the declarant’s statement was preceded by

Miranda warnings; (3) the interrogating agents gave the

declarant no reason to believe it would help him to

inculpate others; (4) the declarant never attempted to

shift the blame elsewhere; (5) the declarant’s statement

was judicially determined to have been knowing and

voluntary; and (6) the truth of the declarant’s statement

was corroborated by the totality of the evidence intro-

duced against the defendants at trial. Id., 635 F.2d at 364.

By contrast, in the instant case, declarant Harris was

in custody when he gave the inculpatory statements.

Although agent Walton testified that the second state-

ment was preceded by Miranda warnings, J.A. 20, 24,

there was no evidence that the first statement was pre-

ceded by Miranda warnings. Unlike the declarant in Rob-

inson, Harris’s interrogator specifically advised him

before both interrogations that any cooperation he pro-

vided would be made known to the prosecutor, implying

that some benefit would be provided in exchange. J.A.

25-27. Harris’s statements can only be interpreted as

wath ten alae a A Al int. beds ch i, UN Mt Pe at Sem

a a ‘ .

shifting the blame for his criminal conduct to Williamson.

Regarding the voluntariness of Harris’s statements,

though the record does not disclose the court's ruling on

Harris’s motion challenging the voluntariness of his

statements, R.10, 13, 56, 57, 58, 60, this Court observed

that a finding that a confession is voluntary has no bear-

ing on the question of whether the confession was also

free from any desire, motive, or impulse of the declarant

to minimize the appearance of his own culpability and

spread the blame to a third person. Lee, 476 U.S. at 544.

Accord United States v. Oliver, 626 F.2d 254, 261 (2d Cir.

1980). Finally in Idaho v. Wright, 497 U.S. 805 (1990), this

Court rejected the notion relied upon in Robinson that

other evidence introduced at a defendant's trial can sup-

ply the corroboration of a statement necessary to pass

muster under the Confrontation Clause. These factual

and legal distinctions virtually nullify the precedential

value of Robinson to the instant case.

The contrast between Harrell and the instant case is

even more striking. In Harrell, the declarant gave the

statement spontaneously to an undercover agent whom

he believed was a confederate. Id., 788 F.2d at 1525, 1527.

Such spontaneous statements, when made to friends or

confederates, are widely held to have special guarantees

of trustworthiness. See, e.g., Chambers, 410 U.S. at 300;

Palumbo, 639 F.2d at 133; Sarmiento-Perez, 633 F.2d at 1102.

By contrast, Harris’s hearsay statements were made dur-

ing custodial interrogation to government agents and

bore all the attendant characteristics of untrustworthi-

ness. Also, as in Robinson, the court in Harrell relied upon

independent evidence introduced at trial to support its

ruling upholding the district court’s admission of state-

ments against interest of unavailable declarants. Wright

now prohibits consideration of such evidence to establish

trustworthiness.

The foregoing analysis demonstrates the overwhelm-

ing unreliability of Harris’s hearsay statements against

Williamson. The admission of these statements violated

Mr. Williamson’s critical constitutional right to defend

against the government's accusations: the right to con-

front the witnesses against him. Only through the cruci-

ble of rigorous cross-examination could Mr. Williamson

have fully and fairly tested the credibility of Harris and

the trustworthiness of the statements that so severely

incriminated him. The denial of this right rendered Wil-

liamson’s trial fundamentally unfair and requires reversal

of his conviction.

C. A POST-ARREST STATEMENT OF A NON-

TESTIFYING ALLEGED ACCOMPLICE

WHICH INCRIMINATES THE DECLARANT

AND A CRIMINAL DEFENDANT AND WAS

ELICITED THROUGH CUSTODIAL INTER-

ROGATION IS INHERENTLY UNRELIABLE.

ITS INTRODUCTION AT THE DEFENDANT’S

SEPARATE TRIAL NECESSARILY VIOLATES

THE CONFRONTATION CLAUSE.

This Court has expressed its reluctance to establish

bright-line rules of constitutional criminal procedure.

E.g., Florida v. Wells, 495 U.S. 1 (1990) (rejecting Florida

Supreme Court’s mechanical “all or nothing” interpreta-

tion of Fourth Amendment’s limitations on inventory

searches); United States v. Sokolow, 490 U.S. 1 (1989)

at Sra dictieis ahigie ate td teem

(cejecting Ninth Circuit's bright-line test for analyzing

drug courier profile facts in assessing reasonable suspi-

cion). However, the routine and devastating violation of

confrontation rights that results from introduction of

hearsay statements within the narrow but extremely com-

mon class represented by Harris’s post-arrest custodial

statements fully warrants such a rule of exclusion. This

Court has consistently expressed its doubt about the

trustworthiness of these hearsay statements in the stron-

gest terms. Lee, 476 U.S. 530, 541-43 (1986); Bruton v.

United States, 391 U.S. 123, 136 (1968); Douglas v. Alabama,

380 U.S. 415, 419 (1965). Although this Court, until now,

has described them as being only “presumptively unreli-

able,” Lee at 541, members of this Court have stressed

that the presumption of unreliability is “weighty.” New

Mexico v. Earnest, 477 U.S. 648, 649 (1986) (Rehnquist,

Powell, and O’Connor, J.J., and Burger, C.J., concurring in

summary vacation of judgment).

In practice, this Court has never sanctioned admis-

sion into evidence of a hearsay statement falling within

this narrow category. Indeed, the only reasonable inter-

pretation of this Court's cases discussing the admission of

these statements at joint trials of the non-testifying

declarants and the inculpated co-defendants is that they

are strictly inadmissible against the co-defendants. See,

e.g., Richardson v. Marsh, 481 U.S. 200, 206 (1987); Cruz ».

New York, 481 U.S. 186, 189-90, 193 (1987); Parker v. Ran-

dolph, 442 U.S. 62, 73-74 (1979); Bruton v. United States, 391

U.S. 123, 126-29 (1968). These cases would make little

sense if the Confrontation Clause permitted such hearsay

statements to be admitted against the incriminated co-

defendant.

A per se bar against admission of these statements

was included in the early drafts of Federal Rule of Evi-

dence 804(b)(3). H.Rer.No. 93-650, 93d Cong., 2d Sess.,

reprinted in 1974 U.S. Cove Conc. & Apmin. News p. 7075,

7090; S.Rer. 93-1277, 93d Cong., 2d Sess., reprinted in 1974

U.S. Cove Conc. & Apmin. News pp. 7051, 7068; 4 J.

Weinstein & M. Bercer, Weinstein’s EvipeNnce

q 804(b)(3)[03] at 804-158 (1993). It was eliminated

because the Senate believed, and the House ultimately

concurred, that it was unnecessary to codify this constitu-

tional rule. 4 J. Weinstein, supra, at 804-158. Judge Weins-

tein has concluded in his authoritative treatise that “[i]n

context, this means the Rule should be interpreted to

include this language.” /d.

This Court’s decisions in other, related areas support

establishing a bright-line rule of inadmissibility here. In

Miranda v. Arizona, 384 U.S. 436 (1966), this Court held

that confessions elicited through custodial interrogation

are per se inadmissible at trial if the interrogation is not

preceded by an advisement and waiver otf the rights to

silence and counsel. This rule was established to protect

against the coercive circumstances of custodial interroga-

tion, and ensure the reliability of a trial’s truth-seeking

function. Despite widespread criticism based largely on

the suppression of such potentially probative evidence,

this Court has strictly adhered to the rule because of its

efficacy in protecting the truthfinding function of trials

and its significant ease of administration. See Withrow v.

Williams, __ U.S. __, 113 S.Ct. 1745 (1993) (discussing

purposes, benefits, and detriments of Miranda’s bright-

line rule). Likewise, in Bruton, this Court created a bright-

line rule requiring prosecutors intending to introduce the

confession of a non-testifying defendant which incrimi-

nates a co-defendant to either sever the defendants (so

the confession would not be admitted at the co-defen-

dant’s trial), sanitize the confession to remove any refer-

ences to the co-defendant and have the jury instructed it

cannot consider the non-testifying defendant's confession

against the co-defendant, or not use the confession at the

joint trial. The manifest purpose of the rule in Bruton also

was to protect the integrity of the trial’s truth-seeking

function.

A bright-line rule of exclusion is necessary with

regard to hearsay statements such as Harris’s for all these

same reasons. These statements are inherently unreliable.

Absent a full opportunity to cross-examine the declarant,

an incriminated defendant is denied the ability to effec-

tively challenge their credibility, sift the conscience of the

declarant, and demonstrate the statement’s lack of trust-

worthiness to the jury. Such statements are typically the

most damning evidence against a defendant; they are

often the key to the entire prosecution. A bright-line rule

excluding such statements would add invaluable safe-

guards to the trial’s truthfinding function and would

contribute substantially to the efficient administration of

justice in the federal courts.!!

11 See United States v. Flores, 985 F.2d 770, 780-83 and n.27

(Sth Cir. 1993) (holding that introduction of statements of

unavailable declarant at a defendant’s trial, which were elicited

through custodial interrogation and incriminated the defen-

dant, categorically violates the Confrontation Clause); United

States v. Sarmiento-Perez, 633 F.2d 1092, 1093 (5th Cir. Unit A

1981) (“the custodial confession of a non-testifying, separately

tried conspirator/co-defendant, insofar as [it] directly impli-

Il. HARRIS’S POST-ARREST STATEMENTS INCUL-

PATING WILLIAMSON WERE INADMISSIBLE AS

STATEMENTS AGAINST INTEREST UNDER FED-

ERAL RULE OF EVIDENCE 804(B)(3).

Analysis of the admissibility of Harris’s post-arrest

statements under Rule 804(b)(3) must begin with the rec-

ognition that they were hearsay. Hearsay is any “state-

ment, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” Fed.R.Evid.

801(c). Harris’s statements were introduced through the

testimony of agent Walton. They were offered to prove

the truth of the matters asserted, i.e., that Mr. Williamson

possessed, and conspired to possess, the cocaine seized

from Harris’s automobile, and directed Harris’s interstate

travel for the purpose of carrying on the unlawful activity

of distributing cocaine. Consequently, unless they fit

within one of the codified exceptions, the statements

were inadmissible. Fed.R.Evid. 802.

The statements were offered and admitted into evi-

dence under Federal Rule of Evidence 804(b)(3), titled

“Statement against interest.” This exception to the hear-

say rule applies to statements of unavailable declarants.

Fed.R.Evid. 804(b). In relevant part it renders admissible

“la] statement which at the time of its making . . . so far

tended to subject the declarant to . . . criminal liability,

that a reasonable person in the declarant’s position would

cates an accused in the crime charged, . . . is [per se] inadmissible

because it is not reliable or trustworthy evidence against the

accused”).

—— os /

not have made the statement unless believing it to be

true.” The rule is silent with regard to inculpatory state-

ments, i.e., statements of a declarant which inculpate the

defendant. However, with regard to exculpatory state-

ments, the rule further provides: “A statement tending to

expose the declarant to criminal liability and offered to

exculpate the accused is not admissible unless corroborat-

ing circumstances clearly indicate the trustworthiness of

the statement.”

A. TO SECURE ADMISSION OF STATEMENTS

IMPLICATING THE DECLARANT AND THE

ACCUSED IN A CRIMINAL CASE, THE GOV-

ERNMENT MUST ESTABLISH CORROBO-

RATING CIRCUMSTANCES CLEARLY

INDICATING THE TRUSTWORTHINESS OF

THE STATEMENTS.

The Rule’s legislative history, Committee Notes, and the

weight of judicial authority support the conclusion that, to

secure the admission of inculpatory statements under this

rule, the government must not only demonstrate the

unavailability of the declarant and that the statements were

contrary to penal interests, but also that the statements sat-

isfy the Confrontation Clause requirement that they be sup-

ported by a showing of particularized guarantees of

trustworthiness. See, e.g., Idaho v. Wright, 497 U.S. 805, ___

110 S.Ct. 3139, 3148 (1990); Ohio v. Roberts, 448 U.S. 56, 66

(1980). As explained above, the House Judiciary Commit-

tee initially amended the Rule to exclude from its pur-

view a statement or confession of an accomplice

implicating both himself and the accused. H.Rep.No.

93-650, 93d Cong., 2d Sess., reprinted in 1974 U.S. Cope

Conc. & Apmin. News pp. 7075, 7090. See 4 J. WeINsTEIN & M.

Bercer, WEINSTEIN’s Evipence J 804(b)(3)(03] at 804-158

(1993). The addition was intended to codify Bruton. The

Senate Judiciary Committee deleted this amendment explain-

ing that it was unnecessary to codify this evolving constitu-

tional principle. S.Rep.No. 93-1277, 93d Cong., 2d Sess.,

reprinted in 1974 U.S. Cope Conc. & Apmin. News pp. 7051,

7068. The Conference Committee adopted the Senate’s ver-

sion. Notes of Conference Committee, H.Rep.No.

93-1597, West’s FeperAt CriMINAL Cope AND Ru tes at p. 288

(1993).

The exchange between the House, Senate, and Con-

ference Committee clearly indicates an intent to superim-

pose this Court’s evolving Confrontation Clause

jurisprudence upon Rule 804(b)(3) with regard to inculpa-

tory statements. E.g., United States v. Alvarez, 584 F.2d 694,

700 (5th Cir. 1978); see United States v. Flores, 985 F.2d 770,

774-77 (5th Cir. 1993); United States v. York, 933 F.2d 1343,

1361 (7th Cir. 1991). Although this Court has been careful

“not to equate the Confrontation Clause’s prohibitions

with the general rule prohibiting the admission of hear-

say statements, Idaho v. Wright, 497 U.S. 805, ___, 110 S.Ct.

3139, 3146 (1990), it has long recognized that “hearsay

rules and the Confrontation Clause are generally

designed to protect similar values

.. and stem from the same roots.” White v. Illinois, ___

U.S. __, ___ 112 S.Ct. 736, 741 (1992) (quoting California v.

Green, 399 U.S. 149, 155 (1970) and Dutton v. Evans, 400

U.S. 74, 86 (1970)). See generally Ohio v. Roberts, 448 U.S. at

66 n.9 (noting complexity of reconciling Confrontation

Clause and hearsay rules). This approach avoids the

unnecessary confusion that would arise if the Rule

— — Gihedes

adopted one standard for admissibility and this Court

demanded adherence to a different standard under the

Sixth Amendment. York, 933 F.2d at 1361.

In Ohio v. Roberts, 448 U.S. 56 (1980), this Court

examined the parameters of the Confrontation Clause in

determining the admissibility of an unavailable declar-

ant’s sworn testimony elicited at the defendant's prelimi-

nary hearing. Id. at 58-63. After noting the essential value

of a face-to-face confrontation between accuser and

accused to the integrity of the factfinding process, the

Court held that the Constitution forbids admission into

evidence of hearsay statements of unavailable declarants

unless they are shown to bear “particularized guarantees

of reliability.” Id. at 63-66. This Court’s Confrontation

Clause jurisprudence continues to adhere to this general

requirement. E.g., Wright, 110 S.Ct. at 3146. Whether one

articulates the test as requiring “corroborating circum-

stances clearly indicat[ing] the trustworthiness of the

statement,” Fed.R.Evid. 804(b)(3) (applicable to exculpa-

tory statements), or requiring a showing of “partic-

ularized guarantees of reliability,” e.g., Roberts at 66, in

addition to the unavailability of the declarant and a state-

ment contrary to the declarant’s penal interests, to secure

admission of an inculpatory hearsay statement under

Rule 804(b)(3), the proponent must, in addition, make a

heightened showing of trustworthiness.!2 In the interests

12 The First, Second, Third, Fifth, Seventh, Eighth, and

Eleventh Circuit Courts of Appeals require that, to secure

admission of an inculpatory statement under Rule 804(b)(3), the

statement must be corroborated by circumstances clearly indi-

cating its trustworthiness. E.g., United States v. Seeley, 892 F.2d 1,

2 (1st Cir. 1989) (citing Alvarez with approval); United States v.

of simplicity, consistency, and ease of judicial administra-

tion, this Court should require the government to estab-

lish “corroborating circumstances clearly indicating the

trustworthiness of the statement” to secure admission

under Rule 804(b)(3).

B. HARRIS’S POST-ARREST STATEMENTS

IMPLICATING WILLIAMSON WERE INAD-

MISSIBLE BECAUSE THEY WERE NOT

AGAINST HARRIS’S PENAL INTEREST.

The justification for admitting hearsay declarations

against interest, notwithstanding their lack of the conven-

tional indicia of reliability, i.e., declarant under oath,

subject to cross-examination, available for fact-finder to

assess demeanor and credibility, is that a person is

unlikely to fabricate a statement against his own interest

at the time it is made. E.g., Chambers v. Mississippi, 410

U.S. 284, 298-99 (1973). As Federal Rule of Evidence

Katsougrakis, 715 F.2d 769, 775 (2d Cir. 1983); United States v.

Oliver, 626 F.2d 254, 260 (2d Cir. 1980); United States v. Palumbo,

639 F.2d 123, 128 n.5, 131 (3d Cir. 1981); United States v. Brainard,

690 F.2d 1117, 1124 (4th Cir. 1982); United States v. Flores, 985

F.2d 770, 774 n.10 (5th Cir. 1993); United States v. Alvarez, 584

F.2d 694, 701 (5th Cir. 1978); United States v. Harty, 930 F.2d 1257,

1262-3 (7th Cir. 1991) (citing Alvarez with approval); United

States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990); United States

v. Riley, 657 F.2d 1377, 1383, 1385 (8th Cir. 1981) (citing Alvarez

with approval); United States v. Taggart, 944 F.2d 837, 840 (11th

Cir. 1991). The Ninth Circuit has specifically reserved judgment

on whether, when admission of inculpatory statements is

sought, Rule 804(b)(3) requires a demonstration of corroborat-

ing circumstances. See, e.g., United States v. Williams, 989 F.2d

1061, 1068 (9th Cir. 1993).

oo ee

804(b)(3) specifically requires, to be admissible the hear-

say statement must be one “that a reasonable person in

the declarant’s position would not have made... unless

believing it to be true.”

The difficulty in applying Rule 804(b)(3)’s “statement

against interest” requirement to Harris’s hearsay state-

ments is that Harris’s declarations contained both self-

serving (shifting the blame to Wiiliamson and charac-

terizing him as the principal) and disserving (acknowl-

edging complicity) facts. As Judge Weinstein has

indicated in his treatise, Rule 804(b)(3) is silent about this

“most troublesome” aspect of the declaration against

interest exception. WeINnsTeIN’s EvIDENCE, supra,

{ 804(b)(3)[02] at 804-150-51. In McCormick’s treatise on

evidence, three methods of handling these types of hear-

say statements are recognized:

First, admit the entire declaration because part

is disserving and hence by a kind of contagion

of trustfulness, all will be trustworthy. Second,

compare the strength of the self-serving inter-

ests and the disserving interest in making the

statement as a whole, and admit it all if the

disserving interest preponderates, and exclude

it all if the self-serving interest is greater. Third,

admit the disserving parts of the declaration,

and exclude the self-serving parts.

E. Creary, McCormick ON Evipence § 279 at 677 (2d ed.

1972).!° McCormick’s treatise gave its stamp of approval

13 In the 1984 Third Edition to McCormick on Evipence, the

discussion about the three methods of handling declarations

containing self-serving and disserving facts has been dropped.

to the third method: “The third solution seems the most

realistic method of adjusting admissibility to trustworthi-

ness, where the serving and disserving parts can be

severed.” Id. Accord WeiNnsTEIN’s EVIDENCE, supra,

{ 804(b)(3)[03] at 804-160 (“fact that part of the statement

was against penal interest does not sufficiently establish

trustworthiness”), 163 (“Because of the dangers involved,

exclusion should almost always result when a statement

against penal interest is offered against an accused.”).

In Lee v. Illinois, 476 U.S. 530 (1986), the majority of

the Court clearly placed its imprimatur on McCormick’s

third approach, excluding the self-serving portions of the

declaration. The majority stated: “As we have consis-

tently recognized, a co-defendant’s confession is pre-

sumptively unreliable as to the passages detailing the

defendant’s conduct or culpability because those pas-

sages may well be the product of the co-defendant’s

desire to shift or spread blame, curry favor, avenge him-

self, or divert attention to another.” Id. at 545. It would

appear that even the dissenting Justices would adopt this

approach. In reconciling the Court’s “customary”

approach of treating the confessions of co-defendants

The section still notes the “controversial” issue concerning

“contextual or related statements.” The new text indicates that

in civil cases, “to admit the critical related statement or part of

the statement is acceptable, even though not itself against inter-

est, if it is closely enough connected in neutral as to interest.” Id.

at § 279 at 825. The section goes on to note that in criminal cases,

judicial scrutiny has been more exacting: “[WJhen the statement

is offered by the prosecution to inculpate the accused, an even

stricter approach is sometimes found . . . requir[ing] rejection of

any part or related statement not in itself against interest.” Id. at

825-826 (footnote omitted).

se bl att pai >

with suspicion, with their assessment that the inculpatory

portion of the declarant’s confession was sufficiently

trustworthy to meet Confrontation Clause concerns, the

dissenting Justices stated:

It is of course against one’s penal interest to

confess to criminal complicity, but often that

interest can be advanced greatly by ascribing

the bulk of the blame to one’s confederates. It is

in circumstances raising the latter possibility,

circumstances in which the accomplice’s out-of-

court statements implicating the defendant may

be very much in the accomplice’s penal interest

- that we have viewed the accomplice’s state-

ments as “inevitably suspect.”

Id. at 552-53 (Blackmun, Powell, and Rehnquist, J.J., and

Burger, C.J., dissenting).

This third approach has been employed in many

federal appellate court decisions to support a conclusion

that the inculpatory portion of a co-defendant’s confes-

sion does not meet the “against penal interest” require-

ment of Rule 804(b)(3). In United States v. Magna-Olvera,

917 F.2d 401 (9th Cir. 1990), the court reversed the district

court’s finding that the post-arrest statements of a co-

conspirator implicating the defendant in a drug conspir-

acy qualified for admission under Rule 804(b)(3). The

court concluded that the statements were not sufficiently

against the declarant’s interest because they were made

under custody, in an attempt to curry favor, upon the

government's suggestion of penal benefit for the coopera-

tion, and because the statements trivialized the declar-

ant’s role in the drug conspiracy by identifying the

defendant as the “kingpin.” Id. at 409.

: Foes

In United States v. Palumbo, 639 F.2d 123 (3d Cir.), cert.

denied, 454 U.S. 819 (1981), the court also reversed the

defendant's conviction for conspiracy to possess with

intent to distribute cocaine, based on the erroneous

admission of a co-conspirator’s post-arrest hearsay state-

ments which implicated the defendant. Upon arrest, and

again before the grand jury, the accomplice stated she

received the cocaine found on her person at the time of

her arrest from Palumbo. When the accomplice claimed

she could not recall the source of the cocaine at trial, the

government introduced the accomplice’s hearsay state-

ments through the arresting officer. Id. at 125-26. Con-

cluding that these hearsay statements were not within the

exception for declarations against interest, the court

noted that the accomplice’s identification of the defen-

dant as the source of the cocaine occurred only after the

drugs had been found on her person by police. Id. at 128.

Although the statement, technically, could have been

used to support a conspiracy or possession conviction

against the declarant, “[t]he legal implications of her

statement may well have been unknown to her.” Id. The

court also found significant that the statement was made

in police custody, in response to police questioning, cir-

cumstances under which the arrestee’s motivation may

well have been to curry favor with the authorities. Id.

In United States v. Riley, 657 F.2d 1377 (8th Cir. 1981),

cert. denied, 459 U.S. 111 (1983), the court also reversed

the defendant’s conviction based on its conclusion that

the declarant’s hearsay statement, though ostensibly

against interest, was not in fact against her interest under

all the surrounding circumstances at the time it was

made. Id. at 1385. The court extensively reviewed the

applicable cases, treatises, law review commentaries, and

rationale underlying the exception. Id. at 1381-84. To sup-

port its decision, the court noted that the statement was

made in response to custodial interrogation and that,

because she had been told a conviction might jeopardize

the custody of her child, the declarant may well have

believed it was in her best interest to make a statement

implicating her co-defendant to ingratiate herself with

the authorities. Id. at 1384. Additionally, the crime to

which the declarant confessed was less serious than the

one in which she implicated the defendant. Id. Thus,

numerous decisions, for good reason, have found that the

inculpatory portions of accomplice post-arrest statements

which are both self-serving and disserving are not, in

fact, against the declarant’s interests under Rule 804(b)(3)

and are inadmissible under Rule 802. Accord Fuson v. Jago,

773 F.2d 55, 60-61 (6th Cir. 1985); United States v. Love, 592

F.2d 1022, 1025-26 (8th Cir. 1979) (“it may have appeared

to [declarant] that her best chance of being released

promptly was to make a statement implicating someone

else”); United States v. Lilley, 581 F.2d 182, 188 (8th Cir.

1978) (“restriction advocated by McCormick excluding

portions of statements which are not against the declar-

ant’s interest is in keeping with the reasoning behind the

804(b)(3) exception to the hearsay rule”).

Using the cited authorities as guidelines, it is appar-

ent that Harris’s post-arrest statements were not against

penal interest within the meaning of Rule 804(b)(3). It

cannot be said “that a reasonable person in [Harris’s]

position would not have made the statement(s] unless

believing [them] to be true.” Id. The overall tenor of the

statements was self-serving. While the statements cer-

tainly implicated Harris in a narcotics offense, they only

confirmed what was already obvious to the police from

the discovery of the cocaine in his vehicle: Harris was in

possession of the cocaine discovered in the trunk. Much

more significantly, however, Harris’s statements demon-

strated a concerted effort to minimize his role in the

offense and to shift the blame to Williamson. In each of

Harris’s statements, he characterized his role as a courier,

a person following someone else’s directions and con-

cerned only with transportation of the cocaine. By con-

trast, in each of the statements he characterized

Williamson as the principal, the person directing the

operation who acquired, owned, and was the intended

recipient of, the cocaine. He ascribed the bulk of the

blame to Williamson.

The factual setting of Harris’s statements gave rise to

the strongest motivation to misrepresent the truth in

order “to shift or spread blame, curry favor, avenge him-

self, or divert attention to another. . . .” Lee v. Illinois, 476

U.S. at 545. At the time he gave his first statement, he had

already been in custody for an hour and knew full well

that he was in the worst possible trouble. He was speci-

fically advised that any cooperation he gave would be

made known to the prosecutor. Harris’s motive and

opportunity to falsify his custodial statements could not

have been greater. Thus, the portions of Harris’s state-

ments implicating Williamson were entirely self-serving.

Under a strict test requiring exclusion of all self-serving

parts of a declarant’s post-arrest statements, these state-

ments should have been excluded. Even under a more

moderate test requiring comparison of the strength of

Harris's self-serving interest and his disserving interest

his self-serving interest predominated requiring a finding

under Rule 804(b)(3) that his statements were not, in fact

against his penal interest.

C. HARRIS’S POST-ARREST STAT

IMPLICATING WILLIAMSON WERE INAD.

MISSIBLE BECAUSE THE GOVERNMENT

FAILED TO ESTABLISH CORROBORATING

CIRCUMSTANCES CLEARLY INDICATING

THEIR TRUSTWORTHINESS.

| As is argued in section II A, supra, the legislative

history of Rule 804(b)(3) dictates that this Court’s appli-

cable Confrontation Clause jurisprudence must be A

laid upon Rule 804(b)(3). That jurisprudence requires

that, at a minimum, to secure admission of hearsay state-

ments ostensibly against the declarant’s penal interest

va government must establish that the hearsay bear

particularized guarantees of trustworthiness.” E.¢

Wright, 110 S.Ct. at 3146.14 As is argued in section I B,

supra, this Court decision in Wright limits the government

in establishing its circumstantial indicia of reliability to

those circumstances that immediately surround the mak-

ing of the statement and that render the declarant partic-

ularly worthy of belief. Id., 110 S.Ct. at 3148. It prohibits

a 16 Williamson has argued in section I A, supra, that to main-

in consistency with the portion of Rule 804(b)(3) dealing with

exculpatory statements, to secure admission of ediieies

statements, the government should bear the same hediin of

establishing corroborating ci

: g circumstances clearly indicati

trustworthiness of the statements. ii may

the government from attempting to establish trustworthi-

ness based on extraneous facts and circumstances inde-

pendent of the hearsay statement.

Analysis of the facts offered to establish the trust-

worthiness of the hearsay statements under Rule

804(b)(3) is identical to the analysis of the same circum-

stances under the Confrontation Clause. Section I B,

supra. The same circumstances that failed to establish the

trustworthiness of Harris’s post-arrest hearsay statements

under the Confrontation Clause are similarly inadequate

to establish trustworthiness under the Rule.'°

CONCLUSION

The judgment of the Eleventh Circuit Court of

Appeals should be reversed and this matter should be

remanded to the district court for a new trial.

Respectfully submitted,

BENJAMIN S. WAXMAN

Rossins, TUNKEY, Ross, AMSEL

& Rasen, P.A.

2250 Southwest Third Avenue

Fourth Floor

Miami, Florida 33129

Telephone: (305) 858-9550

1S The limitation on the circumstances to be considered

under Wright make it unnecessary to consider the physical evi-

dence seized from Harris’s vehicle or the details of the testi-

mony of the witness who claimed he had sold Williamson

cocaine in the past. It is submitted that even were these circum-

stances to be considered, they would not meet the government's

burden of establishing corroborating circumstances clearly indi-

cating the trustworthiness of Harris’s hearsay statements.

ae ae

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