United States District Court, N.D. Illinois, Eastern Division
January 10, 2005.
UNITED STATES OF AMERICA
RICKY PHILLIPS, Defendant.
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
The government has filed a motion in limine seeking to
exclude the purported third party confession of witness Kimmie
Whitehead ("Whitehead"), which defendant, Ricky Phillips
("Phillips"), has indicated he will seek to admit at trial. For
the reasons stated below, the motion is granted.
Phillips is charged with being a felon in possession of a
firearm. On December 7, 2002, Whitehead, who was arrested with
Phillips and informed of her Miranda rights, was in an
interview room along with other individuals arrested in other
cases and various police officers. Chicago Police Officer Darlene
Rodriguez, who was in the interview room, overheard Whitehead
state that the gun in question was hers, that she had gotten the
gun from her uncle, and that "they" were taking the gun to sell
it for drugs. According to Officer Rodriguez, Whitehead was not
speaking to any officer and was not being questioned when she
made the statement.
On May 2, 2003, agents of the Bureau of Alcohol, Tobacco, and
Firearms ("ATF") interviewed Whitehead. At that time, Whitehead
claimed that the gun was in her possession at all times and that
Phillips was wholly unaware of the firearm until after their
On May 6, 2003, during an interview in the United States
Attorneys' offices, after first repeating the story she had given to the ATF agents on May 2,
2003, Whitehead stated that she lied during the May 2 interview
and that Phillips did in fact possess the gun. Whitehead stated
that she had lied to protect Phillips, who is the father of one
of her children, and that she believed, given the nature of her
criminal background, that she would get into less trouble than
Phillips if she claimed the gun was hers.
Also on May 6, 2003, Whitehead testified before the Special
2002-1 Grand Jury. Whitehead was fully advised of her rights
prior to her testimony and acknowledged that anything she said
could be used against her and that she was under oath and could
be prosecuted for perjury if she lied during her testimony before
the grand jury. Whitehead testified that she, Phillips, and Kevin
Bell were riding in a car together on the evening of the arrest.
When they were stopped by the police, Phillips handed the gun to
Whitehead and told her to hide it. Whitehead testified that she
and Phillips then got out of the car, knocked the police officer
down, and ran to a nearby building where they climbed to the
roof. Whitehead testified that, once on the roof, Phillips hid
the gun under a vent. She testified that she did not remember
exactly when she gave Phillips back the gun because she had taken
drugs that day and did not recall all of the details of what
On October 8, 2004, ATF agents again interviewed Whitehead.
This time, Whitehead told the agents that Phillips had never had
possession of the firearm, either on or off the roof of the
building and that the prosecutor had coerced her to lie to the
Grand Jury by threatening to take away her children.
Phillips has indicated that he will seek to introduce
Whitehead's statements from December 7, 2002, May 2, 2003, and
October 8, 2004 as declarations against interest under Federal Rule of Evidence 804(b)(3). This rule permits hearsay
testimony to be admitted at trial if the declarant is unavailable
as a witness and the statement, 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 mad 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.
In United States v. Garcia, 897 F.2d 1413
(7th Cir. 1990),
the Seventh Circuit set forth a three-part test for determining
the admissibility of a statement under Rule 804(b)(3). "A court
must find that, (1) the declarant's statement was against the
penal interest of the declarant, (2) corroborating circumstances
indicate the trustworthiness of the statement, and (3) the
declarant must be unavailable." Id. at 1420.
The parties agree that the statements Phillips seeks to
introduce are against Whitehead's penal interest under the first
prong of the Garcia test. Furthermore, because Whitehead has
advised the court that she would invoke her Fifth Amendment right
against self-incrimination if called to testify, she is
"unavailable" to testify under the third prong of the Garcia
test. See Garcia, 897 F.2d at 1420. Thus, the issue before the
court is whether corroborating circumstances indicate the
trustworthiness of the statements.
Whitehead's December 7, 2002, statement is ambiguous. Her claim
that the gun was hers in no way excludes the possibility that
Phillips possessed the gun. Ownership and possession are wholly
distinct concepts. Furthermore, Whitehead stated that "they" were
taking the gun to sell it for drugs. This statement further
undermines any attempt to draw a conclusion about which of the
two possessed the gun.
Of the remaining four statements at issue, in two of them
Whitehead indicated that Phillips never possessed the gun and in two others she indicated
that he did possess the gun. One of the latter statements was
made under oath before a Grand Jury after Whitehead was fully
advised that she could be prosecuted for perjury if she lied.
This weighs heavily against a finding that the contrary
statements are trustworthy. See United States v. Moore,
936 F.2d 1508, 1517 (7th Cir. 1991) (holding that the trial court
did not err in finding that unsworn post-arrest statement lacked
trustworthiness where declarant recanted much of the statement
under oath during a court proceeding). The fact that Whitehead
later recanted her Grand Jury testimony, claiming that the
Assistant United States Attorney threatened to take away her
children if she did not lie, may cast some doubt on the
trustworthiness of the Grand Jury testimony, but it is
insufficient to shift the balance in favor of a finding that her
statements contrary to that testimony are trustworthy.
Furthermore, Phillips is the father of one of Whitehead's
children. The Seventh Circuit has held that a close relationship
between the declarant and the defendant weighs against a finding
of corroborating circumstances. United States v. Silverstein,
732 F.2d 1338, 1346 (7th Cir. 1984). The court explained that
the corroboration requirement of Rule 804(b)(3) reflects the
long-standing concern that "a criminal defendant might get a pal
to confess to the crime the defendant was accused of, the pal
figuring that the probability of his actually being prosecuted
either for the crime or for perjury was slight." Id. This
concern is clearly present here, given that Whitehead explained
to ATF agents on May 6, 2003, that she initially had lied about
Phillips never possessing the gun to protect Philips and that she
believed, given the nature of her criminal background, that she
would get into less trouble than Phillips if she claimed the gun
Finally, Chicago Police Officer James Burke claims that he saw
Phillips in possession of the gun. This further undermines the trustworthiness of
Whitehead's statements that Phillips never possessed the gun.
The court finds no corroborating circumstances that "clearly
indicate" the trustworthiness of Whitehead's statements. FRE
804(b)(3) (emphasis added). Thus, the court grants the
government's motion in limine to exclude the statements of
For the reasons stated above, the court grants the government's
motion in limine to exclude the statements of Kimmie Whitehead
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