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September 23, 1993



The opinion of the court was delivered by: PAUL E. PLUNKETT

Anthony Battiste, his girlfriend and his "financial advisor" have been indicted on charges of conspiracy, money laundering, structured transactions, narcotics distribution and fraud. Battiste allegedly structured his cash purchases of automobiles, real estate, and home furnishings in order to conceal the illegal source of his income from a narcotics operation in Englewood. The Indictment alleges that Battiste was aided in those endeavors by several coconspirators, one of whom was Michael Engram. Michael Engram was murdered before the indictment against Battiste was returned.


 The government has filed a pretrial motion seeking to admit, inter alia, the testimony of one Johnny Engram. According to the government, Johnny Engram would testify that his deceased brother, Michael Engram, told Johnny that he (Michael) participated in the charged conspiracy at the behest of Battiste. (Mot. to Admit at 4.) Michael allegedly told Johnny that he began distributing cocaine for Battiste in March of 1989 and that he and Battiste would bag the drugs in Battiste's home in Matteson. *fn1" Michael also allegedly told his brother about his participation in the purchase of the Matteson home and about Battiste's purchases of a Corvette and a Mercedes in the names of others. Thus, the government proposes to call a witness who would relate a long conversation with a deceased brother who made a myriad of claims about Battiste's operation of the criminal enterprise charged in the indictment.

 Battiste understandably objects to the evidence on both hearsay and constitutional grounds. The government responds that Johnny Engram's testimony about Michael's statements is admissible against Battiste under the penal interest exception to the hearsay rule because Michael's statement not only inculpated Battiste but inculpated the deceased declarant as well. See Fed. R. Evid. 804(b)(3).


 Rule 804(b)(3), in relevant part, states:

A statement which . . . at the time of its making . . . so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing 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 circumstances clearly indicate the trustworthiness of the statement.


 While 804(b)(3) speaks only to a statement against the out-of-court declarant's penal interest (and not to a statement against the penal interest of another), the commentary provides in part as follows:

These decisions however, by no means require that all statements implicating another person be excluded from the category of declarations against interest. Whether a statement is in fact against interest must be determined from the facts of each case.

 Fed. R. Evid. 804(b)(3), Advisory Committee Notes, Exception 3. The commentary goes on to illustrate this point by suggesting that such statements made while in custody may well be motivated by a desire to curry favor with the authorities and fail to qualify as reliable, while a statement made to an acquaintance would have no difficulty in qualifying as a declaration against interest.

 Should we determine that a statement satisfies the requirements of Rule 804(b)(3), our inquiry is not at an end. The Federal Rules of Evidence do not trump the Confrontation Clause. "The Confrontation Clause reflects 'the ancient faith of the common law, incorporated by the founders in the Bill of Rights, that live confrontation and cross-examination of witnesses in the courtroom is the key to finding the truth in a criminal trial."' United States v. Flores, 985 F.2d 770, 780 (5th Cir. 1993) (quoting United States v. Gomez-Lemos, 939 F.2d 326, 333 (6th Cir. 1991)). The Clause preserves essential rights which trace their roots to the "beginning of Western legal culture." Coy v. Iowa, 487 U.S. 1012, 1015, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988).

 Thus, we must also consider whether the particular guarantees of trustworthiness necessary for the admission of hearsay also satisfy the Confrontation Clause. The answer to this question 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." United States v. York, 933 F.2d 1343, 1363 (7th Cir. 1991) (citing Idaho v. Wright 497 U.S. 805, 820, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990)).

 In this circuit, the law on this question seems settled. A review of the recent case law indicates that statements against an unavailable declarant's penal interest that also inculpate a defendant are routinely admitted. See United States v. Curry, 977 F.2d 1042 (7th Cir. 1992), cert. denied sub nom, Holland v. United States, 122 L. Ed. 2d 737, 113 S. Ct. 1357 (1993); York, 933 F.2d 1343; United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990). In these cases, the Seventh Circuit has repeatedly held that statements against penal interest which also inculpate the accused satisfy the strictures of Rule 804(b)(3). The court has also concluded that 804(b)(3) codifies a "deeply rooted" hearsay exception and thus satisfies the reliability test under the Confrontation Clause as well.

 We believe that these decisions have misread F.R.E. 804(b)(3) and have seriously eroded the protections guaranteed to criminal defendants under the Confrontation Clause. The admission of a dead man's declaration, purportedly against his own penal interest, that also inculpates the accused deprives the accused of any opportunity to cross examine the witness against him. The guarantees of trustworthiness that would make us comfortable admitting the statement against the declarant are simply not present with respect to admitting the statement against the accused, Mr. Battiste. In the case now before us, the validity of Michael Engram's claims, as related to his brother Johnny, that Battiste was a ring leader of a criminal enterprise can never be tested.

 I. The Seventh Circuit's Analysis in United States v. York

 The Seventh Circuit's 804(b)(3) analysis of statements against penal interest that also inculpate another is a three-pronged test. To satisfy the test, the court must find: (1) the declarant's statement was against the penal interest of the declarant; (2) the declarant is unavailable; and (3) corroborating circumstances exist indicating the trustworthiness of the statement. United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990). Of course, should the statement pass this test, the Confrontation Clause remains. Thus the essential analysis employed in York is more succinctly expressed in terms of a two-pronged test: (1) whether the statements meet the requirements of an hearsay exception under the above test; and if so, (2) whether they meet the requirements of the Confrontation Clause.

 A. York's 804(b)(3) Analysis

 B. York's Confrontation Clause Analysis

 In York, the Seventh Circuit also found that the admission of a deceased's statement against interest which also inculpated an accused satisfied the strictures of the Confrontation Clause for two reasons. First, the court felt that the statement met the requirements of a "firmly rooted" hearsay exception, and was therefore presumed to be reliable. Id. at 1363. Second, it felt that the circumstances of the statement gave it an air of trustworthiness sufficient to satisfy the Confrontation Clause. York, 933 F.2d at 1362-63.

 II. Problems with the York Analysis

 In our view the York decision bears an eerie resemblance to the infamous trial of Sir Walter Raleigh. There, Raleigh was convicted of high treason because the court admitted an affidavit of an unavailable alleged coconspirator, Lord Cobham. Cobham's affidavit asserted that both he and Raleigh had been involved in a conspiracy to overthrow Elizabeth I and place Arabella Stewart on the English Throne. Raleigh begged the court to permit him to cross examine Cobham, who was then imprisoned in the Tower of London. *fn2" Raleigh was denied that opportunity and was convicted of treason.

 Ironically, the trial is often used to illustrate the evolution of our rules of evidence from the barbaric to the enlightened. See, e.g., John Kaplan, Jon R. Waltz, and Roger Park, Evidence: Cases and Materials (7th ed. 1991). We are at a loss to explain how allowing Maher's statement into evidence in York (or, for that matter, Michael Engram's statement in the present case) is any different from using Lord Cobham's affidavit against Raleigh. *fn3" It would seem apparent that the underlying problem inherent in both York and Sir Walter Raleigh's cases is the ...

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