Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 CR 315 -- Ann C. Williams, Judge.
Wood, Jr., Posner, and Kanne, Circuit Judges.
WOOD, JR., Circuit Judge.
Fourteen-year-old Tommy York's statements incriminating his father, the defendant-appellant Thomas York, were testified to at trial, not by Tommy, but by Tommy's probation officer. Those statements, which concerned events Tommy allegedly observed when he was nine, were made by Tommy five years later at an interview not under oath and of which no record was made. Besides Tommy, only an Assistant United States Attorney and the probation officer were present at the interview. The district court admitted these hearsay statements at his father's trial pursuant to Federal Rule of Evidence 804(b)(5). The defendant was convicted in a jury trial for arson (18 U.S.C. § 844(i)), conspiracy to commit arson and mail fraud (18 U.S.C. § 371), and mail fraud (18 U.S.C. § 1341). The district court sentenced the defendant to ten years imprisonment on the arson charge and five years imprisonment on each of the other charges to run concurrently. A fine of $23,000 was also imposed. We reverse and remand.
An explosion and fire destroyed the Just Friends Lounge on Sunday, April 18, 1981. Gail Maher's body was found in what had been the destroyed building's basement. Thomas York (York) and Maher, good friends for several years, collaborated to purchase the contents and fixtures of Angelo's, a tavern in Summit, Illinois. They continued the tavern operation at this same Summit location, reopening in August, 1979, under the name "Just Friends Lounge." Apparently, York provided all of the capital investment, including the down payment, although Maher issued several promissory notes to York, promising to pay him amounts that totalled approximately $50,000. Maher signed the closing papers, obtained liquor license in her name, and "sold" the contents and fixtures to York, agreeing to lease back the items at a rate of $250 a month. Individual insurance policies covered the business, York, and Maher. York and Maher were co-beneficiaries on an insurance policy covering the contents and fixtures. They also obtained insurance policies on their lives, naming each other as beneficiaries. York's policy was a $50,000 term policy with double indemnity for accidental death, but because of her poor physical condition (her excessive weight and chronic health problems made her a greater insurance risk), Maher's policy was a more expensive whole life policy, which did not contain a double indemnity clause.
The operation of the lounge went poorly. Just Friends operates at a loss from its opening until its destruction; Maher was never able to make any of the monthly lease-back payments to York. This situation was not helped when Maher neglected to renew the option on the lease during the prescribed period so that instead of an additional five-year term at $900 a month the lounge had a lease for $1,000 a month unilaterally terminable upon thirty days notice by the owners. To keep the business in operation York had injected money into the business at various times, which led to the promissory notes Maher issued to York. York estimated that he had placed $120,000 into the lounge. The fixtures were worth no more than $40,000, and Maher had no funds to repay him.
The explosive device that destroyed the lounge appeared to be a combination of an incendiary device and a pipe bomb. The incendiary device, constructed of an electric timer, an extension cord running to an outlet, a toy train transformer, and a cigar box rigged as a firing system that pointed at a Kentucky Fried Chicken bucket filled with fuel, was placed on a table in the basement of the lounge. The pipe bomb, a pipe filled with gunpowder, capped at each end and connected to an electric outlet, was also in the basement. In addition, a plug had been removed from the natural gas main. This allowed gas to fill the basement, which exploded when the incendiary device ignited. Maher was found near the igniting device, and the evidence is conflicting whether she was unconscious and killed by the explosion, conscious and killed by the explosion, or dead before the explosion occurred. The doctor who performed the autopsy on Maher's body concluded death was caused by the explosion, but five years later changed his view and concluded she had been beaten to death prior to the explosion. York claimed the benefits from the policy on Maher's life and from the insurance policy on the lounge's fixtures and contents.
At York's trial friends of Maher's, Carol Mroch and John Etschied, testified for the government that Maher had told them about Maher and York's plan to blow up the lounge in order to recover on the insurance policy. This, too, is questioned hearsay objected to by York, but we need not resolve that issue.
Thomas Burke, Tommy York's Youth Services Officer (probation officer), testified that in an interview, the interview now in question, Tommy had stated that he saw an electric timer, a train transformer, a pipe, gunpowder, and a Kentucky Fried Chicken bucket in his father's possession. William Anderson, the owner of a car wash near Just Friends, testified that he saw York and his car at the lounge between 2:30 and 4:00 p.m. of the afternoon before the explosion. Other witnesses stated that they had not see York or his car at the lounge that day.
On appeal York argues that Tommy's statement did not qualify for admission under the residual exception to the hearsay rule, Federal Rule of Evidence 804(b)(5), and that admitting the statements also violated the confrontation clause of the sixth amendment. York also argues that the district court erred regarding several other evidentiary rulings. Because we find that the admission of Tommy's statements requires reversal, we need not reach the other issues.
Tommy York, during a September 24, 1986, interview attended by Thomas Burke, his state probation officer, and an Assistant United States Attorney, stated or acknowledged that he saw household electric timers, toy train transformers, cut pipe, gunpowder, and Kentucky Fried Chicken buckets in his father's possession, all of which were items of the type found at the detonation spot in the basement of the destroyed lounge. He also stated or acknowledged that he had heard his father tell his mother that "I spent that Saturday with you." Allegedly York said that to his wife after she told York she could not recall whether or not he was home the afternoon before the bombing. Tommy's observations were made in early 1981, when he was nine years old. At the time of the interview and the trial he was about fourteen years of age. Apparently, the government planned to call Tommy as a witness at trial, but during a pretrial hearing Tommy told the district court he would not testify, claiming the fifth amendment privilege against self-incrimination. Instead, the government called probation officer Burke who testified to what Tommy had stated during the September 1986 interview. The district court decided that Burke's testimony was admissible, qualifying as a hearsay exception under Rule 804(b)(5) of the Federal Rules of Evidence, and not violative of the confrontation clause. We need not discuss the confrontation clause because Rule 804(b)(5) is dispositive of the issue.
Rule 804 accumulates the hearsay exceptions applicable when a declarant is "unavailable." One of the situations fitting with the unavailability definition includes the situation claimed here: "'Unavailability as a witness' includes situations in which the declarant--(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement . . . ." Fed. R. Evid. 804(a)(1).*fn1 There are four specific hearsay exceptions enumerated in Rule 804(b). Circumstances not fitting within any of the four ...