Debi A. Boling, a Single Person, Plaintiff-appellee, v. the Sunrider Corporation, a Foreign Corporation, Dbasunrider International; Vitalite & Sunergy, Adivision Thereof; Tei Fu Chen and Jandoe Chen, Husband and Wife,defendants-appellants, 78 F.3d 591 (9th Cir. 1996)

Before: BROWNING, CANBY, and HALL, Circuit Judges

MEMORANDUM^** 

The Sunrider Corporation appeals the district court's ruling that Ken Andrews' out-of-court statements were not admissible as "statements against interest." Fed.R.Evid 804(b) (3). Sunrider argues Andrews' statements are admissible because they were incriminating, did not minimize his role, and were corroborated by circumstantial evidence.¹  We review for an abuse of discretion, and affirm.² 

Although the statements clearly inculpate Andrews, they are not admissible under Rule 804(b) (3) unless they were also "made under conditions that suggest [Andrews'] sincerity and reliability." United States v. Slaughter, 891 F.2d 691, 701 (9th Cir. 1989) (Wallace, J., concurring).³  To answer this question, "we must consider the circumstances under which [Andrews] spoke." United States v. Magana-Olvera, 917 F.2d 401, 407 (9th Cir. 1990).

The conditions under which the statements were made do not suggest Andrews' sincerity and reliability. Andrews stood to benefit from making the statements. He overtly attempted to "curry favor"--and obtain money--from Sunrider, and suggested Sunrider conceal the payment in a variety of ways. See, e.g., id. at 408-09 (incriminating statements made in the hopes of currying favor with authorities were properly excluded). Moreover, as Andrews cheerfully noted, his statements were likely to harm his arch-enemy, McDonald. Although Andrews recognized his statements "could wind me up in the joint for two to five years," he had reason to expect that if the authorities believed him, they would treat him leniently and focus on McDonald, a former U.S. Attorney and Arizona trial judge.

Andrews "had sufficient time to fabricate [a] story." Slaughter, 891 F.2d at 701 (Wallace, J., concurring). His statements were deliberate and calculated, not spontaneous. See, e.g., United States v. Layton, 720 F.2d 548, 560 (9th Cir. 1984) (noting that statements "were spontaneous statements made to a trusted advisor and were made as the events were occurring or about to occur"). Although asked to do so, Andrews refused to make sworn statements about the tampering.

Substantial corroborating evidence supports Boling's story. Sunrider presented no corroborating evidence Andrews could not have fabricated. Altizer's affidavit refutes Andrews' statements. McDonald, whom the district court found credible, flatly contradicted Andrews' statements that McDonald knew of the tampering.

We conclude that the district court did not abuse its discretion by excluding Andrews' statements.⁴  However, nothing in our decision should be construed as a comment on the merits of the case.

AFFIRMED.