The opinion of the court was delivered by: JAMES H. ALESIA
Before the court are three pretrial motions filed by defendant Rufus Sims
: Defendant's Motion to Exclude Prior Statements of Elaine McCord, Defendant's Motion to Exclude Prior Statements of William Contos, and Defendant's Motion to Exclude Statements of Stevon Sims.
All three motions involve the admissibility of prior statements of now-deceased declarants. Defendant's Motion to Exclude Statements of Stevon Sims is denied as moot, because the government states that it does not intend to introduce the statements of that individual. Defendant's other two motions -- to exclude the testimony of Elaine McCord and William Contos, respectively -- are contested by the government. These two witnesses testified at the trial of Rufus Sims's co-defendants, and it is those statements the government seeks to introduce at his trial.
Defendant's motion attacks the admissibility of the statements under Federal Rule of Evidence 804(b)(1). Where the declarant is unavailable, Rule 804(b)(1) excepts from the hearsay rule "testimony given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." FED. R. EVID. 804(b)(1). While the disputed declarants testified, Mr. Sims was a fugitive. That situation would present an interesting 804(b)(1) issue as to whether a person in Mr. Sims situation had an 804(b)(1) "opportunity" to cross-examine the disputed government witnesses. The government, however, explicitly did not forward 804(b)(1) as a hearsay exception, and so that question is not reached. Instead, the government forwards Rule 804(b)(3), statements against interest, and 804(b)(5), the catch-all exception. The court first turns to Rule 804(b)(3).
II. BACKGROUND LAW ON RULE 804(B)(3)
A. Elements of Rule 804(b)(3) Admission
Rule 804(b)(3) provides for a hearsay exception for an unavailable declarant for "[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 believing it to be true." FED R. EVID. 804(b)(3).
The Seventh Circuit has held that an 804(b)(3) admission must pass a three-prong test. "To satisfy the three-prong test, a court must find that, (1) the declarant's statement was against the penal interest of the declarant, (2) corroborating circumstances exist indicating the trustworthiness of the statement, and (3) the declarant must be unavailable." United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990) (following United States v. Alvarez, 584 F.2d 694, 699-701 (5th Cir. 1978)); United States v. Gio, 7 F.3d 1279, 1288 (7th Cir. 1993). Additionally, with the test so framed, where testimony passes the 804(b)(3) test it normally will pass Sixth Amendment Confrontation Clause analysis as well. Garcia, 897 F.2d at 1421; Gio, 7 F.3d at 1289.
Further discussion of each element of 804(b)(3) admission follows.
Rule 804(a) details under which situations the rule considers the declarant unavailable. Of course here, where the declarants are deceased, their being unavailable is a matter of no controversy. FED. R. EVID. 804(a)(4).
C. Statement Against Penal Interest
"The question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant's penal interest 'that a reasonable person in the declarant's position would not have made the statement unless believing it to be true,' and this question can only be answered in light of all the surrounding circumstances." Williamson v. United States, 129 L. Ed. 2d 476, 114 S. Ct. 2431, 2437 (1994) (footnote omitted); see also Garcia, 897 F.2d at 1420 ("Whether a statement is in fact against interest ... depends upon the circumstances of the particular case.").
There is more guidance available than merely a "surrounding circumstances" test. "'The government must show that the statement "tended to subject" the declarant to criminal liability ....'" United States v. York, 933 F.2d 1343, 1360 (7th Cir.) (citations omitted), cert. denied, 502 U.S. 916, 112 S. Ct. 321 (1991). "A statement satisfies this requirement if it would be probative in trial against the defendant." Garcia, 897 F.2d at 1420. "Implicating" oneself in "the possible involvement in a larger conspiracy surely would tend to subject" one to criminal liability. Id.; see also York, 933 F.2d at 1360. Likewise, "statements that demonstrate a declarant's inside knowledge of a crime are also against the declarant's penal interest." Id.
Recently, the Supreme Court has directed how a court is to approach the against-penal-interest determination. In Williamson v. United States, 129 L. Ed. 2d 476, 114 S. Ct. 2431 (1994), the Court held that "the fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts," id. at 2435. The Court saw "no reason why collateral statements, even ones that are neutral as to interest ... should be treated any differently from other hearsay statements that are generally excluded." Id.
After Williamson, it is clear that a "district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession." Id., see also Carson v. Peters, 42 F.3d 384, 386 (7th Cir. 1994) ("Williamson... holds that in federal cases judges must separate the incriminatory portions of statements from other portions for purposes of FED. R. EVID. 804(b)(3)."). There had been Seventh Circuit indications that "so long as the incriminating and inculpatory portions of a statement are closely related ..., if the circumstances surrounding the portion of a declarant's statement inculpating another are such that the court determines that the inculpatory portion of the statement is just as trustworthy as the portion of the statement directly incriminating the declarant, there is no need to excise or sever the inculpatory portion of the statement." York, 933 F.2d at 1364; see also United States v. Hamilton, 19 F.3d 350, 356 (7th Cir.), cert. denied, 115 S. Ct. 480 (1994). The Williamson Court's rejection of 804(b)(3) admissibility of "collateral statements" tends to undermine the York court's language regarding statements "closely related" to a core statement against interest. And it is likely that the York court's indication that neutral declarations are admissible, 933 F.2d at 1361, does not survive Williamson, 114 S. Ct. at 2435. After Williamson, it is clear that a court is to analyze each part of a proffered statement to determine whether it is against penal interest.
However (and here 804(b)(3) analysis gets delicate), the fact that a statement inculpates another does not mean that the statement, when viewed in context, is not against the penal interest of the declarant. What is required after Williamson is not that inculpatory statements be excluded; rather what is required is that the court independently consider each portion of the statement and for each admitted portion find that it is sufficiently against the declarant's penal interest to declare it admissible under Rule 804(b)(3) and the Confrontation Clause. Williamson, 114 S. Ct. at 2438 (Scalia, J., concurring) ("[A] declarant's statement is not magically transformed from a statement against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible codefendant."); see also York, 933 F.2d at 1361 ("There is ...