Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Michael Popenas, Defendant-appellant, 815 F.2d 706 (6th Cir. 1987)

Michael Popenas, convicted on four counts of tax evasion appeals the district court's second decision holding the affidavit of his tax-preparer not properly admissible as substantive evidence under the Fed.R.Evid. 803(24) residual exception to the hearsay rule. We had previously heard this case and found that the district court erred when it indicated that a statement which fails to meet the criteria for admission under Fed.R.Evid. 801(d) (1) as a prior inconsistent statement could never qualify for admission under Fed.R.Evid. 803(24). See United States v. Popenas, 780 F.2d 545, 547 (6th Cir. 1985). Popenas argues on appeal that on remand the district court applied the wrong standard in evaluating the trustworthiness of the evidence. We disagree and affirm the judgment of the district court.

On remand the parties agreed that the only elements necessary to consider under Fed.R.Evid. 803(24) were (1) whether the affidavit contained equivalent circumstantial guarantees of trustworthiness and (2) whether it was more probative on the point for which it was offered than any other evidence. Because it found the affidavit to be untrustworthy, the district court did not reach the issue of "probative value."

The evidence elicited at trial and in the record indicates that the affidavit in question was prepared by Mr. Popenas' attorney and signed by Mr. Freliga (the tax-preparer) under threat of a malpractice suit by Mr. Popenas. The district court's second opinion in the case demonstrates that it considered such circumstances to be a clear indication of the lack of the affidavit's trustworthiness. Thus, the district court has properly executed our directions on remand and did not err in its judgment.

The judgment of the district court is affirmed.