Rule 804(b)(3) to permit admission of inculpatory statements where consistent with the confrontation clause of the sixth amendment.").
D. Corroborating Circumstances
Under Seventh Circuit law, "Rule 804(b)(3) requires that corroborating circumstances clearly indicate the trustworthiness of a statement against interest." Garcia, 897 F.2d at 1420.
"Some corroborative evidence" is the quantity required. Id. at 1421. "[A] trial judge has considerable discretion, within the parameters of the rules of evidence, in determining whether hearsay statements contain the necessary guarantees of trustworthiness because the judge watches and evaluates credibility and demeanor." Id. Here, this court has unique insight into the trustworthiness of the statements, since the submitted statements were under oath before it, and the court has the benefit of having seen the corroborating circumstances during the prior trial.
What is left is to analyze the submitted statements of Elaine McCord and William Contos to determine whether they are admissible under Rule 804(b)(3).
III. RULE 804(B)(3) ANALYSIS FOR ELAINE McCORD
A. Declarant Unavailable
As discussed above, Elaine McCord is unavailable because of her death. FED. R. EVID. 804(a)(4).
B. Statement Against Penal Interest5
Elaine McCord testified on behalf of the government regarding certain details of, most directly, money laundering allegations. She testified that under the direction of Rufus Sims's mother, Estella Sims, she participated in bank transactions designed to hide the massive amounts of cash that the Sims organization was handling. Much of her testimony also represents an attempt to mitigate her own knowledge of at least the extent of the illegality of the operation in general and the money laundering end of the operation in particular. The government's theory is that the statements tend to implicate the declarant in the money laundering scheme, making the statements against penal interest. The court accepts that core theory. Most of McCord's testimony would tend directly to subject her to criminal liability or would be probative at a criminal trial. Other aspects of her testimony tend to tie her to the Sims organization through her detailed knowledge, or the statements place her in proximity to the Sims organization, dangerous proximity given that the alleged conspirators and their alleged aiders and abetters were under indictment. These statements, when considering all surrounding circumstances, also were against McCord's penal interests at the time of their making.
However, under Williamson, the court has the obligation to make not a generalized finding about the testimony as a whole, but particular findings regarding the separate utterances within the whole of the testimony. The court finds that, except as discussed below, all of the testimony was against the declarant's penal interests at the time of testimony, such that a reasonable person in McCord's position would not have made the statements unless believing them to be true.
Those statements not against penal interest fall into a few categories. First, there are self-serving statements or statements incriminating others to the exclusion of herself. McCord testified often that she was not aware of any illegality, statements that are in no way against her penal interest (page 948, lines 17-20
; page 960, lines 9-21; page 970, lines 20-22; page 972, lines 11-17; page 974, lines 18-19; page 985, lines 12-23; page 1023, lines 12-14; page 1026, lines 6-7, 11-13, 21-23; page 1029, lines 5-8, 24-25; page 1030, lines 21-25; page 1031; page 1032, lines 15-25; page 1036, lines 3-25; page 1046, lines 20-25; page 1047, lines 1-2, 21-22; page 1049, lines 20-25; page 1050, lines 1, 22-25; page 1051, lines 1-9; page 1052, lines 2-25; pages 1053-1054; page 1055, lines 1-9, 13-25; page 1057, lines 15-22; page 1058, lines 1-2). Related to this category of evidence is testimony entirely confined to wrongdoing of others, where the testimony does not incriminate McCord in any way (page 965, lines 3-25; page 966; page 967, lines 1-10). Statements about Sims family shopping trips, notable for their cash-and-carry quality, fall into this category (page 973, lines 10-25; page 974, lines 1-17).
Second, there are the entirely neutral, or just plain irrelevant, statements. McCord testified as to her lack of recall regarding a few instances. Her lack of memory is not against her penal interests (page 946, line 25; page 947, lines 1, 4-5; page 964, lines 17-18; page 1038, lines 9-15; page 1041, lines 1-4; page 1043, lines 9-16). Similarly, McCord's inability to identify a signature is not against her penal interests (page 954, lines 23-25; page 955, line 1). At one point, McCord merely relates her prior criminal record, which is not against her penal interest in any way (page 973, lines 2-9). Most of the first cross-examination of McCord by attorney Hooks falls into the neutral category (pages 976-83; page 984, lines 1-2, 8-11, 18-25; page 985, lines 1-8). Some of the proffered statements truly were questions by the declarant (page 1056, lines 8-25). Also neutral are bits of statements related to courtroom business, for example a reaffirmation of the oath or stating of the witness's name
(page 931, lines 24-25; page 932, line 1; page 1011, lines 1-5, 14-21).
Finally, there are statements that are rehashes of prior statements made, mostly testimony before the Grand Jury or statements to prosecutors. Under these circumstances it could not be said to be against the penal interest of the declarant to acknowledge previous statements (page 985, lines 24-25, pages 986-87; page 988, lines 1-9; page 1011, lines 22-25; pages 1012-21; page 1022, lines 1-8; page 1037, lines 18-25; page 1039, lines 2-25; page 1040, lines 1-14; page 1041, lines 5-14; page 1058, lines 3-23; page 1060, lines 16-25; pages 1061-66).
C. Corroborating Evidence
The Seventh Circuit requires only some corroborative evidence for Rule 804(b)(3) admission. The corroborating evidence here could only be described as overwhelming. First, there is the documentation of the transactions to which Elaine McCord testified. That documentation was entered into evidence through McCord's direct examination. Second, there is the other testimony at trial, which corroborated the money laundering allegations. It is also worth noting that, while certainly it could be thought of as in the interests of a person to help out a criminal prosecutor, there was no explicit grant of immunity, so the court does not view this as an instance where the witness was trying to "'curry favor'" with the government. Hamilton, 19 F.3d at 357 (quoting FED. R. EVID. 804(b)(3) advisory committee's note). This final prong is met for all statements the court has found to be against penal interest.
IV. RULE 804(B)(3) ANALYSIS FOR WILLIAM CONTOS
A. Declarant Unavailable
As discussed above, William Contos is unavailable because of his death. FED. R. EVID. 804(a)(4).
B. Statement Against Penal Interest
William Contos also was called to testify regarding, most directly, money laundering allegations. Rufus Sims allegedly bought Contos's house with cash and cashier's checks. Like Elaine McCord's testimony, much to which Contos testified would be probative in a criminal trial against him wherein he would be accused of money laundering, or at least aiding and abetting. The court finds that a reasonable person in Contos's position would not have made the statements unless believing them to be true, except as follows.
There are instances of statements that constitute court business. These are not in any way against penal interest (page 1309, lines 14-25; page 1310, lines 1-12; page 1324, lines 20-22).
Other parts of the testimony can safely be described as entirely neutral (page 1310, lines 13-25; page 1311; page 1312, lines 1-3). The court includes in this category Contos's statement that he did not remember whether a certain cash transaction was in new or old bills (page 1349, lines 21-22).
Other parts of the testimony tend to minimize Contos's own responsibility. These statements are clearly not against the declarant's penal interest (page 1312, lines 10-14; page 1313, lines 17-20; page 1314, lines 22-25; page 1315, lines 1-6, 24-25; page 1316, lines 1-2; page 1319; page 1320, lines 1-3, 7-20, 24-25; page 1321, lines 1-9, 23-24; page 1322, lines 2-3, 6-14; page 1325, lines 6-15; page 1326, lines 3-11; page 1331, lines 19-25; page 1332, lines 1-23; page 1333, lines 9-10, 14-25; page 1334, lines 1-8, 15-23; page 1335, lines 3-9, 14-25; page 1336, lines 1-8, 11-25; page 1337, lines 8-14, 24-25; page 1338; page 1339, lines 1-8, 13-16, 21-25; page 1340, lines 1-3, 9-21; page 1341, lines 1-9, 21-25; page 1342, lines 1, 7-15, 18-21; page 1343, lines 1-5, 16-25; page 1344, lines 1, 19-25; page 1345, lines 1-2, 15-20; page 1346, lines 4-10, 23-25; page 1347, lines 1-8, 14-25; page 1348, lines 1-6; page 1349, lines 23-25).
C. Corroborating Circumstances
As was the case for the statements of Elaine McCord, the statements of William Contos are overwhelmingly corroborated. The documentation entered into evidence through Contos's own testimony is one example. Added to this is the other evidence presented at trial. As it was regarding McCord, it is here worth noting that, while certainly it could be thought of as in the interests of a person to help out a criminal prosecutor, there was no explicit grant of immunity, so the court does not view this as an instance where the witness was trying to curry favor with the government.
V. RULE 804(B)(5)
The government also invokes the catch-all exception of Rule 804(b)(5): "A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence." FED. R. EVID. 804(b)(5). This court reads Williamson v. United States as implying that the Rules of Evidence as well as the Confrontation Clause require a segmented, not aggregate, analysis of the trustworthiness of the proffered statement under 804(b)(5) as well as 804(b)(3). The court will examine together the testimony of McCord and Contos under 804(b)(5).
A. Circumstantial Guarantees of Trustworthiness
The Seventh Circuit has identified a number of non-exhaustive factors in determining the trustworthiness of a statement:
"the character of the witness for truthfulness and honesty, and the availability of evidence on the issue; whether the testimony was given voluntarily, under oath, subject to cross-examination and a penalty for perjury; the witness' relationship with both the defendant and the government and his motivation to testify ...; the extent to which the witness' testimony reflects his personal knowledge; whether the witness ever recanted his testimony; the existence of corroborating evidence; and, the reasons for the witness' unavailability."
United States v. Doerr, 886 F.2d 944, 956 (7th Cir. 1989) (quoting United States v. Snyder, 872 F.2d 1351, 1355-56 (7th Cir. 1989)).
The sort of factors the Seventh Circuit has identified suggests that most of the testimony of McCord and Contos comes with sufficient guarantees of trustworthiness to be admissible. The testimony was voluntary, under oath, subject to cross-examination and subject to a penalty for perjury. Furthermore, there was no grant of immunity. See Doerr, 886 F.2d at 956. Both witnesses testified from personal knowledge. There is no suggestion that either witness recanted. As discussed above, the corroborating evidence is overwhelming. Furthermore, the reason for unavailability is death, a reason which does not undermine credibility in any way.
For the court those indicia of reliability suffice, except for one category of evidence: that testimony tending to minimize the declarant's own knowledge of or responsibility for wrongdoing. In that instance, there exists a clear "incentive to manufacture false testimony," Doerr, 886 F.2d at 956, namely distancing oneself from the money laundering aspect of an alleged large-scale narcotics conspiracy. That testimony is excluded. Elaine McCord testified to this effect (page 948, lines 17-20; page 960, lines 9-21; page 970, lines 20-22; page 972, lines 11-17; page 974, lines 18-19; page 985, lines 12-23; page 1023, lines 12-14; page 1026, lines 6-7, 11-13, 21-23; page 1029, lines 5-8, 24-25; page 1030, lines 21-25; page 1031; page 1032, lines 15-25; page 1036, lines 3-25; page 1046, lines 20-25; page 1047, lines 1-2, 21-22; page 1049, lines 20-25; page 1050, lines 1, 22-25; page 1051, lines 1-9; page 1052, lines 2-25; pages 1053-1054; page 1055, lines 1-9, 13-25; page 1057, lines 15-22; page 1058, lines 1-2). So did William Contos (page 1312, lines 10-14; page 1313, lines 17-20; page 1314, lines 22-25; page 1315, lines 1-6, 24-25; page 1316, lines 1-2; page 1319; page 1320, lines 1-3, 7-20, 24-25; page 1321, lines 1-9, 23-24; page 1322, lines 2-3, 6-14; page 1325, lines 6-15; page 1326, lines 3-11; page 1331, lines 19-25; page 1332, lines 1-23; page 1333, lines 9-10, 14-25; page 1334, lines 1-8, 15-23; page 1335, lines 3-9, 14-25; page 1336, lines 1-8, 11-25; page 1337, lines 8-14, 24-25; page 1338; page 1339, lines 1-8, 13-16, 21-25; page 1340, lines 1-3, 9-21; page 1341, lines 1-9, 21-25; page 1342, lines 1, 7-15, 18-21; page 1343, lines 1-5, 16-25; page 1344, lines 1, 19-25; page 1345, lines 1-2, 15-20; page 1346, lines 4-10, 23-25; page 1347, lines 1-8, 14-25; page 1348, lines 1-6; page 1349, lines 23-25). For these page and line numbers only, the court finds there are not circumstantial guarantees of trustworthiness.
The court finds the testimony of both McCord and Contos clearly material to allegations in the indictment. FED. R. EVID. 804(b)(5).
C. Relative Probity
While there is other evidence related to these allegations, it seems that there are specific instances to which only McCord and Contos could testify. Indeed, both witnesses are referenced in the indictment. Accordingly, this 804(b)(5) prong is met as well.
D. Interests of Justice
Finally, 804(b)(5) asks whether "the general purposes of these rules and the interests of justice will best be served by admission." No doubt that is the case here. The reason there will have been two trials in this cause is because defendant was on the lam. The government has not forwarded an 804(b)(1) argument that this was his opportunity for cross-examination. Nonetheless, given the circumstances, defendant's complaint that the passage of time has eroded the value of the evidence against him is rather hollow.
E. Confrontation Clause
As was the case under Rule 804(b)(3), the above 804(b)(5) analysis more or less also satisfies the Confrontation Clause. There is no doubt the proffered statements were actually made. See Doerr, 886 F.2d at 958. Also, as discussed above, there are circumstantial guarantees of the statements' veracity, except as noted.
The court finds most of the proffered testimony admissible under Rule 804(b)(3), except for a number of specific categories of testimony. Those categories the court did not find admissible under Rule 804(b)(3), the court next tested under Rule 804(b)(5). The court finds all such categories admissible under Rule 804(b)(5), except for statements tending to minimize the declarant's own knowledge of or responsibility for wrongdoing. The court finds all prior testimony of Elaine McCord and William Contos falls under a declarant unavailable exception to the hearsay rule, FED. R. EVID. 804, and satisfies the Confrontation Clause, U.S. CONST. amend VI, except for those page and line numbers listed in the last paragraph of part V.A of this opinion. Defendant's Motion to Exclude Prior Statements of Elaine McCord is granted in part and denied in part. Defendant's Motion to Exclude Prior Statements of William Contos is granted in part and denied in part. Defendant's Motion to Exclude Statements of Stevon Sims is denied as moot.
JAMES H. ALESIA
United States District Judge
Date: MAR 07 1995