United States v. Barrett

CAMPBELL, Circuit Judge.

Arthur Barrett appeals from his conviction after a jury trial for crimes arising from the theft and sale of a collection of postage stamps from the Cardinal Spellman Philatelic Museum in Weston, Massachusetts. Barrett and seven others were charged in a three-count indictment with the interstate transportation of stolen postage stamps, in violation of 18 U.S.C. Sec. 2314; the receipt, concealment, sale, barter, and disposal of stolen postage stamps in violation of 18 U.S.C. Sec. 2315; and conspiracy under 18 U.S.C. Sec. 371. Of the eight indicted, Barrett alone went to trial.

Three government witnesses implicated Barrett in the burglary and subsequent disposition of the stamps. The first was a Boston coin dealer named Kirzner, a codefendant who pled guilty to one count. Kirzner testified that on or about April 1, 1973, a reputed gangster named Ben Tilley had asked him to appraise some stamps. Tilley, who was deceased by the time of the trial, told Kirzner that he and his gang had stolen the Cardinal Spellman collection. He drove Kirzner to a house near Boston where Kirzner made an appraisal of stamps in albums and sheets marked with the name of Cardinal Spellman Museum. At the house, according to Kirzner, was the defendant Barrett, also known as "Bucky", whom Kirzner had met once previously. Kirzner testified that when he placed a value of only $10,000 on the United States portion of the collection, Barrett said, "if that is all that it is worth that he [Barrett] would like to see it be returned to the museum", and "they should have been worth considerably more for the amount of time and effort that was required in securing [them]."

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Barrett . . . argues that the court below erred by refusing to admit the testimony of three defense witnesses. The first was James Melvin. Melvin testified that in February, 1974, he was at a card game on Bowdoin Street, in Dorchester, Massachusetts, with Ben Tilley. When Melvin was asked to recount a conversation which he had there with Tilley, the Government objected. Barrett made an offer of proof that Melvin would testify that Tilley had told Melvin "that he, Tilley, and Buzzy [Adams] were going to have some trouble from the people from California" with respect to the "stamp theft or matter" and that "[Melvin] asked him did he mean Bucky or Buzzy, and then he said, 'No, Bucky [Barrett] wasn't involved. It was Buzzy.'" Barrett argued at the bench that this testimony was admissible under Chambers v. Mississippi,, and Fed. R. Evid. 804(b)(3) as a declaration against self-interest, apparently on the theory that Tilley's display of inside knowledge of "the people from California" (presumably Bass and his associates), the stamp theft, and the identity of persons "involved", all tended against Tilley's penal interest at the time by advertising his likely complicity. The court excluded the proffered testimony as hearsay on the ground that the relevant part, that Buzzy, not Bucky, was involved, was not against Tilley's interest. The court said, "You are offering it not to prove anything prejudicial to the alleged maker of the statement but to prove that [Buzzy] rather than [Bucky] did it. . . ." Barrett argues on appeal that the entire statement, including the portion exculpating Barrett, should have been admitted.

Rule 804(b)(3) of the new Federal Rules of Evidence provides, with an important qualification, for the admission of a statement by an unavailable declarant that at the time of making tended to subject him to criminal liability. The rule provides in pertinent part,

"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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(3) Statement against interest. 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 him to civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible [sic] unless corroborating circumstances clearly indicate the trustworthiness of the statement."

Rule 804(b)(3) is a departure from the principle laid down in Donnelly v. United States, . . . in which the Supreme Court endorsed the exclusion from evidence of a third party's extra-judicial confession to the murder for which the defendant was on trial. In conformity with English precedent, the Donnelly court limited the hearsay exception for declarations against interest to declarations against interest of a pecuniary character. . . . Statements subjecting the declarant to criminal liability were held to be outside the exception.

Half a century later, when the present Federal Rules of Evidence were being formulated, Donnelly was in disfavor, and provision was made in the various drafts of the new code for the admission of declarations against penal interest. . . . The text underwent several revisions prior to enactment. A provision forbidding prosecutorial use of third party statements or confessions which implicated an accused as well as the declarant was deleted, with the result that subject to sixth amendment and other constraints, a third party's out of court statements against penal interest may now be used against, as well as in favor of, an accused. And, more relevant here, the second sentence of clause (3) was rewritten to require that statements offered to exculpate the accused be corroborated so as to "clearly indicate the trustworthiness of the statement".

As submitted to Congress by the Supreme Court, the Rule required simply that a statement offered to exculpate the accused be corroborated. . . . The Advisory Committee explained this requirement as a way of accommodating the common law's distrust of confessions offered to exculpate an accused:

"The refusal of the common law to concede the adequacy of a penal interest was no doubt indefensible in logic [citing Holmes' Donnelly dissent], but one senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents, enhanced in either instance by the required unavailability of the declarant. Nevertheless, an increasing amount of decisional law recognizes exposure to punishment for crime as a sufficient stake. The requirement of corroboration is included in the rule in order to effect an accommodation between these competing considerations. When the statement is offered by the accused by way of exculpation, the resulting situation is not adapted to control by rulings as to the weight of the evidence, and hence the provision is cast in terms of a requirement preliminary to admissibility. The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication."

Notes of Advisory Committee on Proposed Rules, at 28 U.S.C.A. Fed. R. Evid. 804.

The House Judiciary Committee strengthened this corroboration requirement by adding the present language. The Committee noted,

"[The Committee] believed . . . as did the [Supreme] Court [in its earlier version] that statements of this type tending to exculpate the accused are more suspect and so should have their admissibility conditioned upon some further provision insuring trustworthiness. The proposal in the Court Rule to add a requirement of simple corroboration was, however, deemed ineffective to accomplish this purpose since the accused's own testimony might suffice while not necessarily increasing the reliability of the hearsay statement. The Committee settled upon the language 'unless corroborating circumstances clearly indicate the trustworthiness of the statement' as affording a proper standard and degree of discretion. It was contemplated that the result in such cases as Donnelly v. United States, . . . where the circumstances plainly indicated reliability, would be changed."

Notes of Committee on the Judiciary, H.R. Rep. No. 93-650. . .

As finally enacted, Rule 804(b)(3) requires a two-stage analysis: first, do the offered remarks come within the hearsay exception as a "statement against interest"? and second, if they do, is there sufficient corroboration to clearly indicate trustworthiness? Here we believe that the remarks offered were statements against interest within the Rule, and that the district court should have gone on to determine whether there was sufficient corroboration so as to warrant their admission.

Turning to the first stage of analysis, we think that Tilley's alleged remarks sufficiently tended to subject him to criminal liability "that a reasonable man in his position would not have made the statement unless he believed it to be true." Although the remarks did not amount to a clear confession to a crime as did the declarations in cases like Donnelly and Chambers v. Mississippi, we do not understand the hearsay exception to be limited to direct confessions. . . . A reasonable person would have realized that remarks of the sort attributed to Tilley strongly implied his personal participation in the stamp crimes and hence would tend to subject him to criminal liability. Though by no means conclusive, the statement would be important evidence against Tilley were he himself on trial for the stamp crimes. We cannot say, therefore, that it did not pose the sort of threat to Tilley's interest that the hearsay exception contemplates. . . .

We do not overlook the fact that the proffered remarks came in the course of conversation with acquaintances over cards. In such circumstances, Tilley might not so readily have perceived the disserving character of what was said nor have expected his words to be repeated to the police. . . . But we are unable to say that the contextual circumstances so far impugn the reliability presumed from the remarks' disserving character as to take them outside the first part of the Rule. . . . The factors in question seem better considered under the second part of the Rule in determining whether, overall, there is enough corroboration to "clearly indicate . . . trustworthiness".

Nor do we overlook the fact that exculpating Barrett was not in itself against Tilley's interest, since both could have participated in the crime. Tilley's remarks differ in this respect from the third-party confessions in Chambers and Donnelly. In Barrett's trial, the relevance of Tilley's participation is limited to the credence it gives to his views on who else took part. The district court seemed to suggest that in order for exculpatory remarks such as Tilley's to be admissible as against interest, the innocence of the accused must itself be prejudicial to the declarant. On the present facts, we read the first part of Rule 804(b)(3) more broadly, and conclude that so much of Tilley's remarks as exculpated "Bucky" and inculpated "Buzzy" should here be considered as part of the statement against Tilley's interest.

Under the common law exception for declarations against interest, the treatment to be given portions of a declaration collateral to the declarant's interest has been the subject of much debate. A leading commentator, after acknowledging the traditional liberality with which courts have admitted collateral statements, has expressed the opinion that,

"As long as the courts adhere to the exceptions to the hearsay rule, it would be more reasonable to confine the use of statements against interest in all cases to the proof of the fact which is against interest, since the reliability of other parts of the statement is conjectural."

. . . And more pointedly, in an article criticizing certain conventional exceptions to the hearsay rule, another author has said,

"Nonetheless, the naming of another as a compatriot will almost never be against the declarant's own interest and thus will contain little assurance of reliability on this ground. . . . The invocation of a name may be gratuitous, may be deliberately false in order to gain advantages for the declarant greater than those that would flow from naming a real participant or no one at all, may be a cover for concealment purposes (another kind of 'advantage'), or may represent an effort to gain some kind of personal revenge."

There are two reasons, however, which make it difficult for us to agree with the district court's view of the statement in issue. First, the Buzzy-Bucky statement, especially in context, is itself arguably disserving to Tilley, since it strengthened the impression that he had an insider's knowledge of the crimes. And second, the case law, while far from settled, has tended to grant at least "[a] certain latitude as to contextual statements, neutral as to interest, giving meaning to the declaration against interest . . ." While we do not read the federal rule as incorporating the rather broad formulation put forward by Wigmore, who saw the against-interest exception as permitting reception not only of the "specific fact against interest, but also . . . every fact contained in the same statement", Wigmore, . . . neither does it appear that Congress intended to constrict the scope of a declaration against interest to the point of excluding "collateral" material that, as here, actually tended to fortify the statement's disserving aspects. . . .. We hold that the Buzzy-Bucky remark was sufficiently integral to the entire statement, and the latter sufficiently against interest, as to come within the first part of Rule 804(b)(3).

It follows that the district court was under an obligation to determine, under the second sentence of the Rule, whether "corroborating circumstances clearly indicate[d] the trustworthiness of the statement", including, we would add, the trustworthiness of that part exculpating Barrett. We emphasize that admissibility is conditional upon separate compliance with that standard, which, it is clear from both the statutory language and the legislative history, is not an insignificant hurdle. However, because the court below believed that the Buzzy-Bucky remark was inadmissible because outside Tilley's statement against interest, it never expressly analyzed the proposed testimony in light of that standard. And because for other reasons, . . . there must be a new trial, we ourselves take no position at this time on the admissibility of the testimony under this standard. Unlike the first part of the Rule, which must be read in light of the case law that has evolved under the common law hearsay exception, the second part breaks new ground. We read the Rule as investing the district court with a substantial degree of discretion in making this important finding on trustworthiness, and therefore prefer to let the district court rule first in the course of the new proceeding. We would, nonetheless, make two observations to guide the district court's judgment, should the question arise upon retrial.

First we would not read the standard of trustworthiness as imposing a standard so strict as to be utterly unrealistic. Even in Donnelly and Chambers the evidence, while strongly corroborated, could have been disbelieved by the jury. On the other hand, there is no question but that Congress meant to preclude reception of exculpatory hearsay statements against penal interest unless accompanied by circumstances solidly indicating trustworthiness. This requirement goes beyond minimal corroboration. Trial judges will have to make an assessment case by case and in attempting to understand the standard may be aided by the legislative comments quoted above. In cases that are open to reasonable differences, this court is unlikely to substitute its judgment for that of the district court.

Second, in ruling on trustworthiness courts should be mindful of the possible relationship between constitutional cases such as Chambers and the new federal rule. Chambers holds, on facts far more compelling than anything here, that it is a violation of due process to exclude such exculpatory evidence as a well established confession of another to the crime for which the accused is on trial. Rule 804(b)(3) reflects Congress' attempt to strike a fair balance between exclusion of trustworthy evidence, as in Chambers and Donnelly, and indiscriminate admission of less trustworthy evidence which, because of the lack of opportunity for cross-examination and the absence of the declarant, is open to easy fabrication. Clearly the federal rule is no more restrictive than the Constitution permits, and may in some situations be more inclusive. We do not suggest that there is any issue of constitutional dimension in the present case.

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Vacated and remanded.