Balogh's of Coral Gables, Inc., David R. Balogh, Inc., Andbalogh Jewelers of Hallandale, Inc., Plaintiffs-appellants, v. Irving Getz, Mayor's Jewelers, Inc. and Rolex Watch, Usa,defendants-appellees, 798 F.2d 1356 (11th Cir. 1986)

We have taken this case en banc to consider plaintiff Balogh's contention that the original panel of this court should have reversed the district court's refusal to admit the testimony and written statement of A. Zachary Agran. We reinstate the original panel opinion, 778 F.2d 649 (11th Cir. 1985), as to all issues except the Agran issue, designated in the original opinion as headnote three. Concerning that issue we substitute the following discussion.

Balogh's asserted on appeal that the trial court erred in excluding the testimony and written statement of A. Zachary Agran, a former employee of Mayor's. While seeking employment with Balogh's in January 1980, Agran allegedly made statements that generally inculpated Mayor's and Rolex in the conspiracy alleged in Balogh's complaint. Agran initialed a statement handwritten by Balogh's counsel, and at that time or thereafter there was written at the end of the statement the following: "Dated January 4, 1980 Gloria Lazar Notary." The notary seal was present along with the date of expiration for the notary's commission, but there was no certification that the writing was sworn to and subscribed before the notary. Agran contends that he did not read the handwritten statement before initialing it, that there was no notary present at that time, and that the statement was not notarized in his presence. Plaintiffs' attorney later mailed Agran a typed copy for his signature, but Agran did not sign. He testified that the typewritten statement was inaccurate, that he tore it up and threw it away and that he heard nothing further from the attorney. In February 1984 Agran gave Mayor's counsel an affidavit recanting the statement purportedly made four years earlier. On application for rehearing, Balogh's presses as its primary contention that the handwritten statement initialed by Agran should have been admitted by the trial court under the residual hearsay exception, Fed.R.Evid. 803(24).¹ 

We note first that prior notarized statements may be admitted under Rule 803(24) at the trial judge's discretion. Admission of a sworn statement by a "turncoat witness" is an appropriate application of that rule. We will not disturb a trial judge's determination as to admissibility of evidence on appeal absent a clear showing of an abuse of discretion. Baylor v. Jefferson County Board of Education, 733 F.2d 1527, 1533 (11th Cir. 1984). A district court has considerable discretion in determining admissibility under Rule 803(24), and we are particularly hesitant to overturn a trial court's admissibility ruling under the residual hearsay exception absent a "definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors." Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982).

Outside the presence of the jury, the trial judge in this case took testimony from Agran and heard the plaintiffs' proffer concerning their version of the facts touching on the admissibility of the writing. The court excluded Agran's testimony and the subsequent proffer, and denied plaintiffs' request to have the writing admitted under Rule 803(24). Sharp factual dispute exists concerning the "circumstantial guarantees of trustworthiness" of the handwritten statement. We conclude that the trial court properly considered the factors for admission under Rule 803(24), and we are not convinced that the court made a clear error of judgment in weighing those factors and making its ruling. The record indicates that the trial court did not abuse its discretion, and we affirm the denial of the statement's admission.² 

AFFIRMED.