Argued Sept. 24, 2013.
Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Carol A. Brook, Attorney, Imani Chiphe, Attorney, Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.
Before POSNER, TINDER, and HAMILTON, Circuit Judges.
TINDER, Circuit Judge.
Michael Henderson was convicted of possessing a firearm as a felon. The only contested issue at trial was whether he possessed the gun; that the gun had been in interstate commerce and Henderson's status as a felon were undisputed. See 18 U.S.C. § 922(g)(1). This appeal also presents a single issue: whether the district court abused its discretion in excluding an out-of-court statement of an unavailable declarant regarding the gun that Henderson was charged with possessing?
On August 10, 2010, at around 10:30 p.m., Henderson was driving a van accompanied by a passenger, Dexter Rogers. The van was owned by Elberto Rosado, Rogers' roommate. Chicago police officers Jason Bala and William O'Brien stopped the van for failing to signal a turn. Both officers testified that, as they approached the van, they observed the driver furtively leaning forward and moving his right hand along his waistband toward the small of his back. The officers ordered the occupants of the van to show their hands, and the occupants complied. Henderson did not have a gun in his hands. The officers ordered Henderson and Rogers out of the van and handcuffed them.
After Henderson was out of the van, Officer Bala observed the handle of a handgun extending up from between the driver's seat and seatback. (The rest of the gun was tucked in between the seat and back.) Bala alerted Officer O'Brien to the gun. O'Brien testified that he could see about two inches of the butt of the gun protruding from the seat. (At oral argument, counsel confirmed that the front seats of the van were bucket seats.) Fingerprints were found on the gun, but an analyst testified that it could not be determined whose prints they were. During a pat down of Rogers, the officers found straws containing suspected cocaine. Henderson and Rogers were arrested.
They were interviewed at the police station. Two other police officers testified that when Henderson was asked why he had the gun, he stated that he was unfamiliar with that neighborhood or gangs in the neighborhood and had the gun for protection. Henderson disputes that he made such a statement and offered evidence that he grew up in the area and has two children who live with their mother in the area. The interview was not recorded; no written statement was taken from Henderson. Rogers was not asked about the gun found in the van but he did pull a clear, knotted plastic bag from his genital area. The bag contained smaller zip lock bags containing a white powdery substance suspected to be crack cocaine.
Rosado was interviewed by the government twice in January 2011, and then he testified before the grand jury that the gun was not his, he did not put it in the van, and he had no idea where it had come from. On March 5, 2012, one week before trial, Rosado stated for the first time to the government that he had visited Rogers in jail a few weeks after Rogers' arrest and asked him what had happened. According to Rosado, Rogers said that he just found the gun and kept it, brought it into the van, and was going to take it to the residence that he and Rosado shared. Rosado remarked that what Rogers said did not make any sense, but he didn't question Rogers about it further. Rosado had met with the defense before the March interview with the government and had never mentioned Rogers' supposed statement about the gun.
The government moved to exclude Rosado's anticipated testimony about Rogers' alleged statement as inadmissible hearsay. Henderson argued that the testimony was admissible under Rule 804(b)(3) as a statement against penal interest. (If called to testify, Rogers, a convicted felon, would plead the Fifth Amendment regarding his possession of the gun.) The district court granted the motion. The court found first that " the Statement is incredible on its face. Henderson has not presented any reasonable explanation to show that it is plausible that Rogers found a loaded gun on the street." The court also found that " even if the Statement was made, the totality of the circumstances indicates that the Statement was made to help Henderson out." Furthermore, the court determined that Henderson had " failed to point to sufficient corroborating evidence to suggest that the Statement is trustworthy." Therefore, it concluded Henderson had not satisfied Federal Rule of Evidence 804(b)(3)'s corroboration requirement and excluded the statement. At the conclusion of the trial, the jury returned a guilty verdict. Henderson contends that the exclusion of Rosado's testimony was erroneous, thereby justifying a new trial.
We review the district court's evidentiary rulings for an abuse of discretion. United States v. Jones, 600 F.3d 847, 853 (7th Cir.2010). " The district court's determination as to the trustworthiness of out-of-court statements is ‘ entitled to considerable deference’ and should be upheld unless ‘ clearly erroneous.’ " Id. (quoting United States v. Jackson, 540 F.3d 578, 587 (7th Cir.2008)). Although hearsay is generally excluded from evidence, Rule 804(b)(3) authorizes its admission where (1) the declarant is unavailable as a witness, (2) the statement was against the declarant's interest when made, and (3) if the statement is offered to exculpate the defendant, " corroborating circumstances ... clearly indicate its trustworthiness." Fed.R.Evid. 804(b)(3); see also United States v. Hall, 165 F.3d 1095, 1112 (7th Cir.1999) (" Rule 804(b)(3) expressly requires the exclusion of out-of-court statements offered to exculpate the accused unless there are corroborating circumstances that ‘ clearly indicate’ the trustworthiness of the statement" ). The rule's corroboration requirement reflects " a 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." United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir.1984).
Henderson contends that the district court erred in excluding Rogers' hearsay statement because corroborating circumstances clearly suggest that the statement was trustworthy. The government responds that the court properly found that Henderson offered nothing to corroborate the ...