United States of America, Plaintiff-appellee, v. Romeo Trinidad Flores, Jr., Defendant-appellant, 985 F.2d 770 (5th Cir. 1993)

Defendant-appellant Romeo Trinidad Flores, Jr. (Flores) appeals his conviction of conspiracy to possess with intent to distribute in excess of 1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 846, 841(a) (1), and 841(b) (1) (A). Flores claims, among other things, that his Sixth Amendment rights under the Confrontation Clause were violated by the admission against him of grand jury testimony of his codefendant, Oscar Navarro (Navarro), who did not testify at trial. We agree, and accordingly reverse and remand for another trial.

Facts and Proceedings Below

On May 22, 1990, federal agents established surveillance of a ranch, abutting the United States border on the shores of Falcon Lake near the town of Lopeno, Texas, on the suspicion that a large shipment of marihuana would shortly be brought there from Mexico. At approximately 10:00 p.m., agents observed a dump truck travel south on Highway 83, pull off the highway, turn off its lights, and enter the ranch on a caliche road by a livestock dipping bath and a parked Ford Bronco, which had been observed earlier entering the ranch. After voices were heard in conversation, the two vehicles proceeded on the caliche road to the banks of Falcon Lake.

At approximately 4:00 a.m., federal agents observed a red Chevrolet Lumina travelling north on Highway 83 from Lopeno.¹  The vehicle stopped near the dipping bath and several persons in the car were yelling in Spanish toward that area. A man got out of the passenger side, yelled toward the dipping bath, and reentered the Lumina, which then made a U-turn and returned towards Lopeno. Moments later, the Lumina returned with a person sitting on the passenger-side door frame, yelling toward the dipping bath area. The passenger exited the vehicle and the driver turned around and again drove toward Lopeno. A few minutes later the Lumina returned, picked up the passenger at the ranch gate, and then went back towards Lopeno. About five minutes later, the Lumina again appeared, and, after stopping on the road near the dipping bath, the vehicle's two occupants could be heard conversing about when the truck was due to come out. A Bronco exiting the ranch with its lights off stopped at the ranch entrance and its occupants appeared to speak with the occupants of the Lumina. The Bronco then entered Highway 83, turned on its lights, and drove north towards Zapata. The Lumina entered the ranch with its headlights turned off and travelled in the direction of a dump truck before disappearing. A dump truck later emerged from the caliche road with the Lumina following behind it. The dump truck turned on its lights and headed north from the ranch's entrance onto Highway 83, and was followed by members of the surveillance team. Before following in the dump truck's direction, the Lumina's three occupants exited the car and closed the gate to the ranch. The Lumina was not followed by the agents. About half an hour later, federal agents stopped the dump truck northeast of Zapata, Texas, on Highway 16 and seized 2,768 pounds of marihuana that it was carrying.

The Lumina was not observed again until about thirty minutes later, when a patrolman stopped the car twenty to twenty-five miles north of the ranch, outside of Zapata, Texas, on Highway 16.²  The patrolman observed that Flores was driving the car, a passenger was riding in the front seat, and Navarro was in the back seat. After searching the car, the patrolman directed Flores to follow him back to the Zapata police station to pay some outstanding traffic tickets. Flores did so and then hurriedly left.

About a year later, on April 29, 1991, members of the surveillance team questioned Navarro at his home about his role in the marihuana shipment. Navarro initially refused to talk, but he changed his mind when told he was the target of an investigation. After being given his Miranda warnings, Navarro admitted that he was involved in the shipment. The federal agents then asked him to accompany them to the customs office. He voiced some concerns about his legal status because he was on probation for another offense, but ultimately decided to go with the agents.³  The agents then drove Navarro to the customs office where he signed a statement concerning the details of the shipment. This confession described Flores as participating in the marihuana conspiracy by engaging in countersurveillance activity along Highway 83 while the marihuana shipment was being loaded.⁴ 

On May 3, Navarro testified before a grand jury concerning the marihuana shipment.⁵  He was without counsel, and was questioned by the Assistant United States Attorney. Of course, neither Flores nor his counsel was present. Navarro's grand jury testimony, echoing his confession in the customs office, incriminated him and also contained inculpatory statements indicating that Flores specifically, among others, was involved in the conspiracy. Based on this testimony, on July 9 Navarro and Flores were charged in a one-count indictment with conspiracy to possess with intent to distribute in excess of 1,000 kilograms of marihuana.

On August 6, the government filed a notice of intent to use Navarro's grand jury testimony pursuant to Fed. R. Crim. P. 12(d). Flores objected, and during a pre-trial hearing on August 12 argued that since he and Navarro were being tried together, and since Navarro had indicated that he would not take the stand and would assert his Fifth Amendment privilege, that therefore the admission of the grand jury testimony would violate Flores' rights under the Sixth Amendment's Confrontation Clause. The district court took this argument under advisement and Flores filed supplemental objections to the grand jury testimony on August 14. He filed further written objections and a motion for severance on August 23. The court summarily denied the motion for severance but allowed Flores to file additional grounds to exclude the grand jury testimony. On August 27, Flores formally identified specific objectionable portions of Navarro's grand jury testimony, and the next day, following an evidentiary hearing, the district court determined that most of the testimony had particularized guarantees of trustworthiness based on the circumstances surrounding the testimony and on the corroborating evidence implicating Flores.⁶  The district court then redacted certain portions of Navarro's grand jury testimony and, over Flores' objections, allowed the remaining testimony to be admitted against Flores as well as against Navarro.⁷  Navarro exercised his Fifth Amendment right not to testify at trial.

A jury trial involving codefendants Flores and Navarro began on August 28, and the next day both were convicted of conspiracy to possess with intent to distribute in excess of 1,000 kilograms of marihuana in violation of 21 U.S.C. §§ 846, 841(a) (1), and 841(b) (1) (A). On November 6, 1991, Flores was sentenced to twenty years' imprisonment to be followed by a ten year term of supervised release, and ordered to pay a fine of $7,500. Flores now appeals his conviction asserting that the district court erred in, among other things, admitting Navarro's grand jury testimony.⁸ 

Discussion

Flores complains that his Sixth Amendment rights under the Confrontation Clause were violated because of the admission against him of the grand jury testimony of his codefendant Navarro, who exercised his Fifth Amendment right not to testify at trial.⁹  Flores asserts that Navarro's grand jury testimony did not have the required indicia of trustworthiness. Such indicia must be shown in order to admit a statement under the hearsay exception provided by Fed.R.Evid. 804(b) (3).¹⁰ 

The district court reviewed Navarro's testimony to determine its admissibility against Flores under this Court's decision in United States v. Vernor, 902 F.2d 1182 (5th Cir.), cert. denied, 498 U.S. 922, 111 S. Ct. 301, 112 L. Ed. 2d 254 (1990). The Vernor court held that in the case of custodial confessions, " [a] close examination of all the circumstances surrounding the making of the statement is required in order to determine whether it so contravenes the declarant's penal interest that a reasonable person in his position would not have made the statement accusing a third person unless he believed it to be true." Id. at 1187-88, quoting Sarmiento-Perez, 633 F.2d at 1102. In addition to reviewing the circumstances surrounding the confession, the district court here relied on independent evidence that placed Flores in the car thirty minutes after it was observed leaving the ranch and thus corroborated that portion of Navarro's grand jury testimony that placed Flores at the scene of the conspiracy. Based on these findings the district court concluded that the testimony had sufficient indicia of reliability to be admitted against Flores as a declaration against penal interest under Fed.R.Evid. 804(b) (3). The district court's analysis was consonant with Vernor, which held that corroborating evidence is to be considered--in addition to the circumstances surrounding the statements--to satisfy the requirement of reliability under rule 804(b) (3) and the requirement of trustworthiness under the Confrontation Clause. Vernor, 902 F.2d at 1188. However, the Supreme Court has since held that corroborating evidence may not be considered in determining whether a statement may be admitted under the Confrontation Clause where, as here, the statement is presumed to be unreliable. Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990).¹¹ 

The Wright Court, in applying the Confrontation Clause's requirements to Idaho's residual hearsay exception, noted that there existed two basic frameworks for analyzing the constitutionality of hearsay exceptions as set forth in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Generally, under both systems, the Confrontation Clause requires the prosecution to show that the declarant is unavailable and that the statement bears adequate indicia of reliability. Id. 448 U.S. at 64-66, 100 S. Ct. at 2538-39. If the hearsay falls within a firmly rooted hearsay exception then reliability may be presumed. Id. 448 U.S. at 65, 100 S. Ct. at 2539. However, if the hearsay is not part of a firmly rooted exception, then the required indicia of reliability must be shown from "particularized guarantees of trustworthiness." Id. The Wright Court held that these "particularized guarantees of trustworthiness" include only the relevant circumstances "that surround the making of the statement and that render the declarant particularly worthy of belief." Wright, 497 U.S. at 819, 110 S. Ct. at 3148. Corroborating evidence may not be considered because it "would permit ... bootstrapping on the trustworthiness of other evidence at trial." Id. 497 U.S. at 823, 110 S. Ct. at 3150.¹² 

The Wright court determined that Idaho's residual exception to the hearsay rule was not a firmly rooted exception so that evidence may only be admitted under that exception if it had "particularized guarantees of trustworthiness." Similarly, a confession by an accomplice inculpating a defendant that is being offered as a declaration against penal interest is not a firmly rooted exception. Although some statements that fall within the declaration-against-penal-interest concept may be inherently reliable, the concept itself "defines too large a class for meaningful Confrontation Clause analysis." Lee v. Illinois, 476 U.S. 530, 544 n. 5, 106 S. Ct. 2056, 2064 n. 5, 90 L. Ed. 2d 514 (1986). Therefore, each class of statements that falls within the exception must be analyzed to determine whether it is inherently reliable.¹³  Confessions of accomplices or codefendants are "presumptively unreliable as to the passages detailing the defendant's conduct or culpability because those passages may well be the product of the codefendant's desire to shift or spread blame, curry favor, avenge himself, or divert attention to another." Id. 476 U.S. at 545, 106 S. Ct. at 2064.

Navarro's grand jury testimony is a confession of a codefendant, and it may only be admitted against Flores if the relevant circumstances "that surround the making of the statement ... render the declarant particularly worthy of belief." Wright, 497 U.S. at 819, 110 S. Ct. at 3148.¹⁴  However, the district court considered corroborating evidence in addition to the circumstances surrounding the making of the statement.¹⁵  This situation resembles United States v. Gomez-Lemos, 939 F.2d 326 (6th Cir. 1991), where two co-conspirators' grand jury testimony was used against the defendant at trial. The testimony was admitted as a declaration against penal interest, the co-conspirators having made themselves unavailable by evoking their Fifth Amendment privilege not to testify. The Court held, under Wright, that the district court committed error in admitting the grand jury testimony because it "found significant in its reliability analysis the fact that the hearsay testimony of co-conspirators Barraza and Osorio was corroborated." Id. at 332. Since the district court, contrary to Wright, considered corroborating evidence in support of its decision to admit Navarro's testimony, its decision may not stand.

The question remains whether we should regard Vernor as binding precedent for the admissibility of this character of evidence even where, per Wright, external corroborating evidence may no longer be considered in the trustworthiness calculation. We decline to ascribe such a continuing precedential effect to Vernor. We are not persuaded that the result in Vernor itself, or the general pro-admissibility approach of that opinion, would have been the same absent the comfort factor of external corroborating evidence, a factor that under Wright is no longer available in calibrating trustworthiness.¹⁶  Moreover, we believe that the type of evidence here considered should be deemed inadmissible in light of the historical underpinnings and core values of the Confrontation Clause, and what we view as the infringement of those values in this general context by the evolutionary expansion of the concepts of unavailability and declaration against penal interest.

Certainly, the Confrontation Clause does not serve as an impregnable barrier to the admission of any and all hearsay evidence. The theory behind the hearsay rule is that "the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination." 5 Wigmore, supra, § 1420 P. 251. Based on this theory, confrontation is not always required if the statement is "so trustworthy that adversarial testing would add little to [its] reliability." Wright, 497 U.S. at 821, 110 S. Ct. at 3149. The Confrontation Clause couples with this trustworthiness requirement the additional safeguard that necessity must be shown before the statement can be admitted. Roberts, 448 U.S. at 64-66, 100 S. Ct. at 2538-39. In order to prove necessity, the Supreme Court has held that the Confrontation Clause requires a showing of unavailability in order to admit hearsay such as confessions. See United States v. Inadi, 475 U.S. 387, 392-401, 106 S. Ct. 1121, 1125-1129, 89 L. Ed. 2d 390 (1986); Roberts, supra; Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895). However, circumstances that constitute unavailability have been enlarged over time. As noted by one court:

"Originally, the test of unavailability was satisfied only if the declarant was deceased at the time of trial. As the exceptions to the hearsay rule grew, the concept of unavailability also expanded, and forms of unavailability other than death were recognized as sufficient to satisfy the test of necessity. Illness, insanity, absence from the jurisdiction, and supervening incompetency by virtue of interest have all been held to satisfy the unavailability requirement. The unavailability principle has been expanded to include a witness who, by the exercise of privilege, refused to testify." Naylor v. Gronkowski, 9 Ill.App.3d 302, 306-07, 292 N.E.2d 227, 229-30 (1972).

Such an expansion was at least in part a salutary development since unavailability, in a practical sense, may occur in several forms besides the demise of the declarant.¹⁷  However, the courts have generally not considered the effects of the expansion of unavailability as they interact with other evolving legal concepts.

As with the concept of unavailability, the exception for declarations against interest has greatly expanded from its historical roots. In England, although statements against penal interest may on occasion have been admitted in the distant past, the courts ruled in the mid-nineteenth century against the existence of such an exception. Sussex Peerage Case, 11 Cl. & F. 85, 110 (1844); Davis v. Lloyd, 1 C & K. 276 (1844); Papendick v. Bridgwater, 5 E. & B. 166, 180 (1855). In the United States, common-law hearsay exceptions existed for statements made against pecuniary or proprietary interest, but no exception existed for declarations against penal interest. 5 Wigmore, supra, § 1476 P. 352-58. Defendants who were attempting to use declarations by third parties as evidence in their favor sought to have this exception recognized, but this attempted common-law expansion was rejected by the Supreme Court in Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820 (1913).

The Donnelly court considered whether the confession of a third party exculpating the defendant should be admitted as evidence. Id. 228 U.S. at 271, 33 S. Ct. at 459. The Court determined that it should not, because although a recognized exception to the hearsay rule existed concerning declarations against interest, "it is almost universally held that this must be an interest of a pecuniary character ... In this country there is a great and practically unanimous weight of authority in the state courts against admitting evidence of confessions of third parties...." Id. 228 U.S. at 273-274, 33 S. Ct. at 459-60. Donnelly also relied on Sussex and on Justice Marshall's opinion in Queen v. Hepburn, 11 U.S. (7 Cranch) 290, 3 L. Ed. 348 (1813), which observed, "The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well-established rule; the value of which is felt and acknowledged by all." Id. 11 U.S. (7 Cranch) at 296, 3 L. Ed. at 350.¹⁸ 

However, such an exception would be eventually recognized as predicted in Justice Holmes' famous dissent in Donnelly:

"There is no decision by this court against the admissibility of such a confession; the English cases since the separation of the two countries do not bind us; the exception to the hearsay rule in the case of declarations against interest is well known; no other statement is so much against interest as a confession of murder; it is far more calculated to convince than dying declarations, which would be let in to hang a man; and when we surround the accused with so many safeguards ...; I think we ought to give him the benefit of a fact that, if proved, commonly would have such weight." 228 U.S. at 278, 33 S. Ct. at 461 (Holmes, J., dissenting) (citations omitted).

Cast in these terms, such admissions against penal interest did not implicate the Sixth Amendment because they would be statements of third parties offered by an accused in order to exonerate himself. Criticism for not recognizing an exception for statements against penal interest focused on this perceived injustice.

This criticism was muted by the promulgation of the Federal Rules of Evidence in 1975, which provided that a declarant's statement against interest may be admitted as an exception to the hearsay rule where such statement "so far tended to subject the declarant to civil or criminal liability." Fed.R.Evid. 804(b) (3).¹⁹  This rule recognized the general reliability of statements made by a declarant that were opposed to his own penal interest. However, echoing the concerns of the Donnelly majority, the rule treats statements by a third-party exculpating the defendant as requiring "corroborating circumstances clearly indicat [ing] the trustworthiness of the statement." Id.

Although rule 804 does not specifically address the situation where the third-party declarant's confession contains statements inculpating the defendant, the Supreme Court has always viewed such statements as inherently suspect. Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965) (admission of nontestifying previously tried codefendant's confession violated the defendant's rights under the Confrontation Clause); Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (admission of nontestifying jointly tried codefendant's confession with a limiting instruction still violated the defendant's rights under the Confrontation Clause). The rules advisory committee notes to rule 804(b) (3) also recognize this inherent unreliability in positing that "a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest." West's Federal Criminal Code and Rules 287-88 (1991 rev. ed.).

The relatively recent recognition of declarations against penal interest as an exception to the hearsay rule by the Federal Rules of Evidence would seem to counsel against a headlong rush to broadly embrace the exception as providing a sufficient substitute for cross-examination and personal confrontation in cases of the present kind. We recognize that statements which adversely implicate the penal interest of the declarant alone for many years have been widely recognized as normally reliable and, where the declarant is unavailable, have usually been admitted in evidence in federal and most state courts. See E. Clearly, McCormick on Evidence § 278 (3d ed. 1984). Arguably, such statements may be deemed a "firmly rooted" exception to the hearsay rule under the Lee formulation. On the other hand, even generally objectionable statements in which the declarant adversely implicates not only his own penal interest but also that of another may be made under circumstances that both suggest reliability and do not seriously invade the intended protections of the Confrontation Clause, such as statements made to a personal acquaintance in a noninvestigatory context where the setting suggests no motive to speak falsely. This distinction seems to be recognized by the rules advisory committee's reference to statements made "to an acquaintance." West's Federal Criminal Code and Rules at 288 (advisory committee notes to rule 804(b) (3)). Cf. United States v. Triplett, 922 F.2d 1174, 1178, 1182 (5th Cir. 1991) (statement to neighbor). Such statements might well fall into the Lee category of those shown to have "particularized guarantees of trustworthiness."

It appears to us, however, that there is another category of statements against penal interest that should generally be regarded as inadmissible under the Confrontation Clause, particularly where the declarant's unavailability is due simply to invocation of the Fifth Amendment in response to actual or potential prosecution, namely statements accusatory of another taken by law enforcement personnel with a view to prosecution.²⁰  Such statements have two characteristics that together make them inherently unreliable: (1) the declarant makes accusatory statements that inculpate another; and (2) these statements are made to nonundercover law-enforcement personnel after the commission of the offense. In that generic situation there always exists the strong possibility that the declarant has the "desire to shift or spread blame, curry favor, avenge himself, or divert attention to another." Lee, 476 U.S. at 545, 106 S. Ct. at 2064. It is precisely in these circumstances that cross-examination, the "greatest legal engine ever invented for the discovery of truth," see 5 Wigmore, supra, § 1367 P. 32, is preeminently suited to determining the trustworthiness of a declarant's statements as envisioned by the framers of the Confrontation Clause.

The Confrontation Clause reflects "the ancient faith of the common law, incorporated by the founders in the Bill of Rights, that live confrontation and cross-examination of witnesses in the courtroom is the key to finding the truth in a criminal trial." Gomez-Lemos, 939 F.2d at 333. As noted by the concurrence in Gomez-Lemos, "The framers of our Constitution were well aware of England's unhappy experience with Star Chamber procedures, and the Sixth Amendment was designed, in part, to forbid the use of the most objectionable of these procedures in the criminal courts of the United States." Id. at 334 (Nelson, J., concurring). Such objectionable procedures included sworn ex parte depositions used against defendants in criminal cases. Coke, Fourth Institute, Chapters 5 and 64. The Confrontation Clause was developed to "prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness." Mattox, 156 U.S. at 242, 15 S. Ct. at 339; see also California v. Green, 399 U.S. 149 at 155-156, 90 S. Ct. 1930 at 1934, 26 L. Ed. 2d 489 (1970); White v. Illinois, --- U.S. ----, ----, 112 S. Ct. 736, 746, 116 L. Ed. 2d 848 (1992) (Thomas, J., dissenting).²¹ 

The hearsay rules operate in civil as well as criminal proceedings, and may be invoked by the government as well as by the citizen. But the Confrontation Clause applies only in criminal prosecutions and protects only the accused. Its "lineage ... traces back to the beginnings of Western legal culture." Coy v. Iowa, 487 U.S. 1012 at 1015, 108 S. Ct. 2798 at 2800, 101 L. Ed. 2d 857 (1988). Moreover, " 'the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact,' " Maryland v. Craig, 497 U.S. 836, 844, 110 S. Ct. 3157, 3162, 111 L. Ed. 2d 666 (1990) (quoting Coy, 487 U.S. at 1015, 108 S. Ct. at 2800), "witnesses who confront him at trial, upon whom he can look while being tried." Coy 487 U.S. at 1017, 108 S. Ct. at 2801. The purpose of confrontation is not solely a function of conventionally explainable enhanced reliability, for in this respect the clause "serves ends related both to appearances and to reality," Coy 487 U.S. at 1017, 108 S. Ct. at 2801, has a "strong symbolic purpose," and responds to " 'something deep in human nature that regards face-to-face confrontation between accused and accuser as "essential to a fair trial in a criminal prosecution." ' " Craig 497 U.S. at 847, 110 S. Ct. at 3164 (quoting Coy 487 U.S. at 1015, 108 S. Ct. at 2800, quoting Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923 (1965)).²² 

The use of ex parte depositions is still barred in criminal proceedings. Depositions may only be taken for a criminal trial if notice is given to all parties, the defendant is given an opportunity to be present personally and through counsel at the examination, and the scope and manner of examination and cross-examination are the same as would be allowed at the trial itself. Fed. R. Crim. P. 15. However, under Vernor, the substantial equivalent of an ex parte deposition may be taken, and used at trial against a defendant, where the prosecutor procures a declarant's grand jury testimony with an eye towards the later joint prosecution of the defendant and/or the declarant. In the case sub judice, Navarro's grand jury testimony, derived ex parte and without the benefit of counsel for either himself or Flores, comes perilously close to resembling England's Star Chamber proceedings. The government's choice of trying Navarro jointly with Flores in essence guaranteed that Navarro would be unavailable because he would invoke his Fifth Amendment privilege. The government, in effect, created its own unavailable declarant.²³  The district court allowed this testimony into evidence against both defendants because it adversely implicated Navarro's penal interest and the district court was satisfied with its trustworthiness. However, in the area of codefendants' confessions to law enforcement authorities that implicate another, this should rarely--if ever--be the case due, among other things, to their inherent unreliability. Lee, 476 U.S. at 540, 106 S. Ct. at 2062.

The Supreme Court has never allowed the admission against a defendant of a codefendant's hearsay inculpatory statements to law enforcement authorities, although it has suggested that theoretically such hearsay could be admitted in appropriate circumstances. Cruz v. New York, 481 U.S. 186, 192, 107 S. Ct. 1714, 1719, 95 L. Ed. 2d 162 (1987); Lee, 476 U.S. at 546, 106 S. Ct. at 2065. But that suggestion should not drive us to allow a codefendant's confession to law enforcement authorities to be admitted against the defendant merely because the district court is able to fairly recite a litany of factors and conclude that the particular confession has "sufficient indicia of reliability." In Vernor, the factors surrounding the making of the statement that were relied on to demonstrate its trustworthiness were: (1) the declarant took, without attempting to minimize, full responsibility for his role in the offense; (2) nothing indicated that the declarant made the statements to avenge himself or to curry favor with the authorities; (3) the authorities who procured the statements testified and were cross-examined at trial concerning the circumstances and contents of the statements; (4) no promises or plea bargains were made with the declarant; (5) the statements were made voluntarily; (6) the declarant was fully informed of his Miranda rights; and (7) the offense was still fresh in the declarant's mind. 902 F.2d at 1188.²⁴ 

While the presence of these factors (as opposed to their opposites) doubtless renders a given confession more reliable than it would otherwise be, we are not persuaded that it substantially eliminates any reasonable possibility that the third party inculpatory portions of a confession to law enforcement personnel are unreliable. As to the first factor, a declarant must incriminate himself in order to fit within the exception in the first place. Whether such incriminating statements describe the declarants' full role in the offense will rarely be determined from the confession alone. Taking on the full blame for a minor role in an offense, such as claiming to be a mere courier in a drug conspiracy, does little to demonstrate trustworthiness because the declarant still has the motive to shift the blame to others so as to receive a lesser penalty. In certain instances this concern might be resolved by other evidence, but Wright does not allow such evidence to be considered. The second factor views the absence of evidence showing improper motives as indicating trustworthiness. However, statements by suspects to law enforcement officials inculpatory of third parties are excluded because of the presumption that such motives exist, and the absence of evidence does not remove this presumption. Lee, 476 U.S. at 544, 106 S. Ct. at 2064. The third and fourth factors, though helpful in tending to indicate that the statements are not made in response to prior express inducements such as a plea bargain or other promise, do little to show that the declarant does not desire to curry favor with the authorities in the perhaps mistaken hope that he will receive some favorable consideration.²⁵  Nor do they tend to negate a motive to avenge. The fifth and sixth factors, that the declarant made the statements voluntarily and with Miranda warnings, will generally be present when a confession is taken, and were present in Lee. The Lee court gave them no weight because they do not bear on whether the declarant's confession was free of the motive to mitigate the declarant's role in the offense. Lee, 476 U.S. at 544, 106 S. Ct. at 2064. The last factor, making the confession shortly after the offense, does little to illuminate the declarant's motive.

If one suspected of a particular offense confesses to the investigating authorities and implicates others, under the above-referenced Vernor factors that confession, including its accusations against the others, could generally be admitted as substantive evidence against all in a joint trial. In that context, the combined expansion of two generally benign evidentiary concepts--unavailability and declarations against interest--results in sanctioning evidence that has historically been viewed as generically suspect and violative of values at the very core of the Confrontation Clause. Where the government has the means to procure the declarant's trial testimony,²⁶  the fact that there will often be "significant costs" (see Lee 476 U.S. at 550, 106 S. Ct. at 2067, Blackmun J., dissenting) in its doing so should not override one of our oldest and strongest legal traditions and the very essence of the Confrontation Clause, namely the protection against conviction on the basis of third party accusations made in ex parte confessions to law enforcement or prosecutorial authorities, where there is no opportunity for the defendant to cross-examine and personally confront--or for the trier of fact to observe--the declarant.²⁷ 

Conclusion

We hold that the district court's admission of Navarro's grand jury testimony as substantive evidence against Flores, over Flores' objection, violated Flores' rights under the Confrontation Clause.

Although the question is a very close one and not free from doubt, we are also unable to conclude that this error was harmless.

Accordingly, Flores' conviction is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.