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May 17, 1999


The opinion of the court was delivered by: Castillo, District Judge.

                             MEMORANDUM OPINION
                                 AND ORDER

A grand jury indicted Tiburcio Valenzuela and his co-defendant, Hugo Corral, for possession with the intent to distribute approximately six kilograms of cocaine. Immediately after Valenzuela and Corral were arrested, Corral gave a statement to Drug Enforcement Agent Steve McGuigan and, after posting bond, absconded. Valenzuela asks this Court to preclude the government's use of Corral's statement at trial, arguing that the statement is inadmissible hearsay. The government maintains that the statement is admissible under Federal Rule of Evidence 804(b)(3) as a statement against interest. We conclude that Corral's statement is neither truly against his own interest nor trustworthy as required by Rule 804(b)(3) and, therefore, exclude any reference to the substance of Corral's statement at trial.

I. Facts

Corral and Valenzuela appeared before Magistrate Judge Rosemond on October 17, 1998. Corral posted a $4,500.00 bond, but Valenzuela was denied bond. Apparently Corral attended the christening of his child, appeared at a preliminary examination hearing on October 21, and submitted to an additional interview with McGuigan. At the second interview, Corral primarily confirmed the information he gave to McGuigan during his first statement. (Resp.Br.Ex. D.) Corral disappeared sometime before November 17, the day Judge Rosemond issued a bench warrant for his arrest. Corral remains a fugitive.

II. The Issue

The government wants Agent McGuigan to testify at Valenzuela's trial about Corral's statements regarding his and Valenzuela's drug trafficking activities; specifically, it wants McGuigan to tell the jury about the six occasions that Valenzuela allegedly instructed Corral to pick-up or deliver drugs. The government presents no argument about those portions of Corral's statement that do not pertain to actual trafficking (e.g., how Corral met Valenzuela, that Valenzuela bought him a cell phone), even though Valenzuela's motion also challenges the admissibility of these non-trafficking bits.

Valenzuela wants to keep Corral's statement out of evidence. He maintains that the entire statement is hearsay not subject to the "statement against interest" exception found in Rule 804(b)(3). Primarily, he argues that the statement was really a product of Corral's attempts to "curry favor" with the authorities so that he could obtain bail and attend his child's christening.

III. Analysis

[1] Rule 804(b)(3) provides that an out-of-court statement which, at the time of its making, "tended to subject the declarant to civil or criminal liability . . . [such] that a reasonable person in the declarant's position would not have made it unless believing it to be true" is admissible at trial. The underlying reason for this hearsay exception is "the common sense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true." Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). The government bears the burden of establishing the admissibility of Corral's out-of-court statement. American Automotive Accessories, Inc. v. Fishman, 175 F.3d 534, 539-40 (7th Cir. 1999) ("The proponent of the out-of-court statement bears the burden of showing that the statement qualifies under Rule 804(b)(3)").

[2] Under Rule 804(b)(3) the admissibility of a hearsay statement rests on three elements: the declarant is unavailable; the statement is against the declarant's penal interest; and the statement is trustworthy. See, e.g., United States v. Butler, 71 F.3d 243, 252 (7th Cir. 1995). We waste no time on the first prong because Corral is clearly unavailable: he is a fugitive. But there appears to be some confusion among the courts over which of the two remaining Rule 804(b)(3) elements is implicated by Valenzuela's "curry favor" argument.

The Seventh Circuit treats "currying favor" as a factor to consider in determining the trustworthiness of an out-of-court statement. For example, in United States v. Nagib, 56 F.3d 798 (7th Cir. 1995), the court identified three factors going to the trustworthiness of a statement:

   First, a district court must look to the relationship
   between the confessing party and the [inculpated]
   party. Second, the court must consider whether the
   confessor made a voluntary statement after being
   advised of his Miranda rights. Third, the court must
   determine whether there is any evidence that the
   statement was made in order to curry favor with the

Id. at 805; see also United States v. Sandoval-Curiel, 50 F.3d 1389, 1392 (7th Cir. 1995) ("The statement, however, was sufficiently trustworthy: . . . nothing indicates that the statement was made in an attempt to curry favor with law enforcement officers."); United States v. Garcia, 986 F.2d 1135, 1140 (7th Cir. 1993) ("[W]e identified two additional factors which supported the trustworthiness of the testimony: . ...

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