Unpublished Disposition, 884 F.2d 582 (9th Cir. 1989)

MEMORANDUM^* 

Eddie Cly appeals from the final judgment following the jury verdict of guilty on two counts of Assault with a Dangerous Weapon, Crime on an Indian Reservation, in violation of 18 U.S.C. §§ 1153 and 113(c) as charged in the indictment. Cly argues that the court abused its discretion in admitting a multiple hearsay statement that also violated Cly's Sixth Amendment right to confront witnesses.

We affirm. Although the defendant's motions to exclude the statement presented a close call as to admissibility, the court did not err because the statement was sufficiently trustworthy under Fed.R.Evid. 804(b) (5) and is not violative of the Confrontation Clause.

(1) Hearsay

The district court's decision to admit evidence is reviewed for an abuse of discretion. United States v. Marchini, 797 F.2d 759, 762 (9th Cir. 1986). " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Hearsay is not admissible except as provided by the rules of evidence. Fed.R.Evid. 802. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in the rules of evidence. Fed.R.Evid. 805.

The statement at issue here can be analyzed in three phases: first, Cly's alleged statement to his daughter Sally; second, Mrs. Cly's statement to Officer Yazzie repeating Cly's statement to Sally; and third, Yazzie's testimony. Cly's initial statement that he would shoot at the police should Sally call them is not hearsay because it is an admission by a party-opponent and offered against him. Fed.R.Evid. 801(2). Cly's statement thus poses no hearsay problem.

Mrs. Cly's statement, however, requires Fed.R.Evid. 804 hearsay exception analysis. 804(a) (1) defines an unavailable witness as one who "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." Mrs. Cly invoked her spousal privilege not to testify against her husband. She was, therefore, an unavailable declarant.

Officer Yazzie's testimony of Mrs. Cly's statement was hearsay because the declarant (Mrs. Cly) did not testify, and the statement was offered to prove the truth of the matter asserted: that Cly planned on shooting at the police. Fed.R.Evid. 804(b) sets forth certain statements not excluded by the hearsay rule if the declarant is unavailable as a witness. 804(b) (5) provides for the admission of statements which otherwise would be hearsay if they have circumstantial guarantees of trustworthiness equivalent to the other Rule 804 hearsay exceptions and if the trial court determines (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of the rules of evidence and the interests of justice will be served by admission of the statement into evidence. Marchini, 797 F.2d at 762-763.

The subject matter of the testimony should be considered. If it is direct evidence of guilt or critical proof of guilt, other factors, such as corroboration, must weigh heavily in favor of admissibility. Id. (citing United States v. Barlow, 693 F.2d 954, 962-63 (6th Cir. 1982), cert. denied, 461 U.S. 1016 (1982)).

Yazzie's testimony was offered as evidence of a material fact (Cly's intent), Fed.R.Evid. 804(b) (5) (A), and was more probative of his intent than other testimony which was merely circumstantial. Rule 804(b) (5) (B). The determinative issue is whether Mrs. Cly's statement had equivalent circumstantial guarantees of trustworthiness compared to the other Rule 804 hearsay exceptions: former testimony; statement under belief of impending death; statement against interest; and, statement of personal or family history. Arguably, Mrs. Cly's statement was equivalent to a declaration against interest because it harmed her husband. However, the statement was direct evidence of guilt and therefore its admissibility depended on corroboration. The interest of justice is served by admitting relevant trustworthy statements into evidence. Rule 804(b) (5) (C).

Perhaps most corroborative of Officer Yazzie's statement is the incident itself. Officers Bilagody and McCabe testified that when they drove toward the shack they were fired upon. Spent cartridges were found near the shack in Cly's cornfield when officers confiscated his gun at the scene. It appears that the appellant did what he threatened to do, and his wife's statement was thus sufficiently corroborated by other evidence thereby guaranteeing its trustworthiness and justifying its admission into evidence. See Marchini supra at 763. The trial court did not abuse its discretion in admitting Officer Yazzie's testimony of Mrs. Cly's statement about Cly's admission.

(2) Confrontation Clause

Appellant argues that his inability to cross-examine his wife about her statement to Officer Yazzie violated his right to confront witnesses. The fact that a hearsay statement may be admissible under the Federal Rules of Evidence does not establish compliance with the Confrontation Clause. United States v. Candoli, 870 F.2d 496, 509 (9th Cir. 1989) (citing Ohio v. Roberts, 448 U.S. 56, 65 (1980)). However, although the Sixth Amendment Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him, the clause is given a pragmatic rather than a rigid, literal construction. The Confrontation Clause neither bars the admission of all out-of-court statements in a criminal proceeding nor requires that all declarants be subject to cross-examination. Baker v. Morris, 761 F.2d 1396, 1399 (9th Cir. 1985), cert. denied, 474 U.S. 1063 (1986).

Roberts sets forth the following test to determine whether a hearsay statement is admissible without violating the Confrontation Clause: First, the declarant must be unavailable.¹  Second, the statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Id.

We conclude that Mrs. Cly's statement is supported by particularized guarantees of trustworthiness. The officers' testimony about bullets whizzing by their car, the appellant's admission that he shot toward the car albeit while aiming at a crow, and his equivocation while testifying about making the statement at issue weigh among other facts in favor of trustworthiness.

The issue of trustworthiness is perhaps in retrospect a close call. However, we defer to the district court's face to face assessment of the testimony. Although Confrontation Clause problems require de novo review, United States v. Yarbrough, 852 F.2d 1522, 1536 (9th Cir.), cert. denied, 109 S. Ct. 171 (1988), the record shows that the statement at issue bore adequate indicia of reliability.

CONCLUSION

Officer Yazzie's testimony about Mrs. Cly's statement to him quoting Cly's admission was sufficiently trustworthy under Fed.R.Evid. 804(b) (5) and under the Confrontation Clause. The convictions below are AFFIRMED.