lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination.'" Flores, 985 F.2d at 777 (citing 5 Wigmore, § 1420 at 25). Both the hearsay rule and the Confrontation Clause may give way, however, where a particularized basis for trustworthiness arises in a given set of circumstances. Thus, there clearly is some overlap and interplay between hearsay rules and the protections provided by the Confrontation Clause: confrontation, like hearsay exclusion, is not always required if the statement is "so trustworthy that adversarial testing would add little to [its] reliability." Id. (citing Wright, 497 U.S. at 821).
In sum, an inculpatory hearsay statement may be admitted where the statement carries with it sufficient "indicia of reliability." Roberts, 448 U.S. at 65-66. The "indicia of reliability" requirement can be met in one of two ways. Wright, 497 U.S. at 816. First, the statement may be admitted when it "falls within a firmly rooted hearsay exception." Id. If the statement does not fall within such an exception, it is "presumptively unreliable," but may be admitted where it that presumption is rebutted by "a showing of particularized guarantees of trustworthiness." Wright, 497 U.S. at 816 (citing Roberts, 448 U.S. at 66). See also Bourjaily, 483 U.S. at 183 (co-conspirator exception to hearsay rule firmly rooted); Lee v. Illinois, 476 U.S. 530, 543, 90 L. Ed. 2d 514, 106 S. Ct. 2056 (1986) ("Even if certain hearsay evidence does not fall within 'a firmly rooted hearsay exception' and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a 'showing of particularized guarantees of trustworthiness.'") (citation and footnote omitted).
We have grave doubts that an out-of-court statement accusing another of the commission of a crime can ever be made under circumstances which are so trustworthy that adversarial testing would add little to its reliability. The out-of-court assertion offered by the government in York went to the heart of the case of the case against the accused. It directly charged the Defendant with having committed the crime for which he was on trial. The out-of-court declarant is by definition unavailable and thus cannot be cross examined. Even if the out-of-court accusation is made under oath, as was Lord Cobham's affidavit, or made to an unimpeachable listener, the fact remains that there exists no opportunity for the Defendant to cross examine his accuser. Gail Maher's bias, first hand knowledge, memory, prior bad acts or convictions can never be presented to the jury. We do not believe that, under such circumstance, cross examination could ever be labelled "supererogation." Wright, 497 U.S. at 819. There will almost always be too great a risk of inaccuracy and untrustworthiness. Id.
IV. Our Analysis of the Present Case
Having expressed our anxiety over the York analysis and our view of what we believe to be the controlling law in this area, we turn to whether the circumstances surrounding Michael Engram's statements endow it with sufficient indicia of reliability to satisfy the hearsay rule and the Confrontation Clause. Our analysis of these issues comports with York as well as addresses our concerns about the dangers of its analysis. Of course, we are bound by York to the extent it is not contrary to the Constitution or to Supreme Court precedent, and to that extent we must tailor our analysis to its dictates. However, the ban on inculpatory statements against penal interest was removed from Rule 804(b)(3) because Congress believed the decision should be made on a case-by-case basis. 56EF.R.D.F183, 328 (1973). Thus, our review of the law and the facts of our case demonstrate that we may comfortably bar admission of Michael Engram's alleged statements from within the framework of York and Garcia because we find that the statement was not made in circumstances endowed with sufficient indicia of reliability.
The facts of York are quite similar to those in the present case. However, a close analysis of the facts here demands a different result. Of course, the particular guarantees of trustworthiness necessary for admission under the Confrontation Clause must be drawn from "the totality of the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief." York, 933 F.2d at 1363 (citing Idaho v. Wright, 497 U.S. 805, 819, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990)). It is on this point that the facts of the present case diverge from those of York, and, upon review of the totality of the circumstances surrounding Michael Engram's alleged statement, we hold that York does not control.
Our first inquiry must be whether Michael's statement to Johnny was actually against his penal interest. Garcia, 897 F.2d at 1420. The key to admissibility under 804(b)(3) is, of course, whether a reasonable person in the place of the declarant would fear that making the statement put him or her at an appreciable risk of criminal liability. F.R.E. 804(b)(3). See also York, 933 F.2d at 1360; Garcia, 897 F.2d at 1420. As explained below, we find that the circumstance surrounding the alleged statement in this case indicate the Michael Engram did not put himself at any real risk of criminal liability in telling Johnny Engram about his involvement with Battiste and that insufficient indicia of reliability surround the alleged statements.
Revealing incriminating information to an "associate," as in York, or an "acquaintance" as in the Advisory Committee notes, may well entail a great deal of risk. The terms "associate" and "acquaintance" imply a non-intimate relationship, whether casual or business-related, where one party has little knowledge and/or control over the other. Thus, a declarant would have no way of knowing whether the recipients of the incriminating information, be they "associates" or "acquaintances," will react by later using the statement against her; for all the declarant knows, the recipient could be married to a police officer or even be an informant. That essential element of risk is the rationale behind the reliability of declaration against penal interest and the reason they are an exception to the hearsay rule.
In the present case, we doubt that Michael's statements, at least to the extent they implicate Battiste, were against his penal interest in any significant fashion. Michael's alleged statements to his brother about his involvement with Battiste were made in circumstances that indicate he took only a very small risk of criminal liability in telling his brother Johnny his tale. Common sense dictates that "[a] relation of trust and confidence between speaker and listener . . . militates against awareness that the making of the statement might be against declarant's penal interest." John W. Strong et al., McCormick on Evidence § 319 at 345 (4th ed. 1992).
Though the courts have held that the mere fact that the recipient was a confidante of the declarant does not rule out admissibility of statements against interest, see, e.g., United States v. Goins, 593 F.2d 88, 92 (8th Cir.) (revelation to daughter admissible), cert. denied, 444 U.S. 827, 62 L. Ed. 2d 35, 100 S. Ct. 52 (1979); United States v. Bagley, 537 F.2d 162, 165 (5th Cir. 1976) (friend and cellmate); United States v. Barrett, 539 F.2d 244, 251-52 (1st Cir. 1976) ("in the course of a conversation with friends over cards. . . ."),
more is at work here between Johnny and Michael than a mere familial relationship. In fact, it may have actually been in Michael's interest to fabricate his tale about his involvement with Battiste.
The government's ex parte submission indicates that Battiste is a "governor" in the Gangster Disciples street gang. Johnny Engram was not only Michael's brother but was also considered, at one time prior to the conversation with Michael, Battiste's "right hand man" in alleged criminal activities as well as an associate of the gang. Given the street gang culture, where members are elevated and revered based upon criminality, it would have served Michael Engram's best interests to brag about his association with Battiste, a high-ranking member, to his brother and fellow Gangster Disciple, Johnny. But see Badalamenti, 626 F. Supp. at 666 (statements made to organized crime figures, who operated under 'code of silence,' increased reliability).
Further distinguishing this case from York is that fact that Michael apparently told Johnny he participated in the criminal activity at the behest of Battiste, a statement that certainly could be viewed, in the alternative, as an attempt to diminish his own criminal responsibility:
A statement conceding a minor role to declarant and attributing to another the major responsibility resembles more an attempt to foist blame on the other while minimizing declarant's responsibility, and thus the statement as a whole advances far more than it impairs the interests of the declarant, hence lying outside the instant exception [Fed. R. Evid. 804(b)(3)] if offered to prove the other's conduct.
4 David W. Louisell & Christopher B. Mueller, Federal Evidence § 489, at 1141 (1980) (discussing Fed. R. Evid. 804(b)(3)). Cf. York, 897 F.2d at 1363 (declarant did not attempt to diminish her own role in crime). Thus, unlike in York, here we have facts that affirmatively suggest that the out-of-court statement may be unreliable.
We doubt Michael's statement meets the requirement of the rule here, where the lack of any appreciable risk of criminal liability removes the inherent reliability normally found in an 804(b)(3) declaration and where the declarant may have attempted to diminish his own responsibility for the crime. But see, United States v. Harrell, 788 F.2d 1524, 1526 (11th Cir. 1986) (no requirement that declarant know that he is speaking with person who could subject him to prosecution).
Having discarded the presumption of reliability afforded the hearsay statements in the distinct factual setting of York, we must find sufficient indicia of reliability to meet the requirements of the Confrontation Clause, a task we cannot complete on the record as it now stands. Certainly, we view declarations against penal interest that inculpate another with inherent suspicion in determining their reliability. See, e.g., Lee, 476 U.S. at 539. The undeniable possibility which arises from the unique facts of this case that Michael's statements were mere puffery only increases our suspicions.
See York, 933 F.2d at 1361 (reliability analysis for hearsay exception and for Confrontation Clause is the same).
As we have recognized, the Confrontation Clause is not an impregnable barrier to admissions of hearsay evidence. In the present case, however, we are at a loss to explain how admitting Michael Engram's alleged statement against Battiste, which we have found does not fit the definition of a statement against penal interest, is any different for Confrontation Clause purposes from the admission of the confession of the non-testifying codefendant's confession in Bruton. 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Though the Seventh Circuit has hinted that Bruton has been so severely eroded as to no longer represent the state of the law, see York, 933 F.2d at 1362 & nn. 2-3, we respectfully disagree. Bruton remains the law on the facts presented therein. See Wright, 497 U.S. at 814 (citing Bruton for proposition that Confrontation Clause limits hearsay exceptions). Indeed, the Supreme Court noted in Lee that the out-of-court statement offered there, though technically a statement against penal interest, would be analyzed as a confession by an accomplice that inculpated another, precisely the situation in Bruton. Lee, 476 U.S. at 544 n.4.
Where inculpatory hearsay evidence is neither within a "firmly rooted" hearsay exception nor bears sufficient "indicia of reliability," the Confrontation Clause will bar its admission. Thus, because we find that Michael Engram's statement to Johnny Engram is not within a "firmly rooted" hearsay exception and does not possess sufficient "indicia of reliability," it is inadmissible under 804(b)(3) and the Confrontation Clause.
PAUL E. PLUNKETT
UNITED STATES DISTRICT JUDGE
DATED: September 23, 1993