United States of America, Plaintiff-appellee, v. James Walker, A/k/a Gregory Glenn Harrell, Defendant-appellant, 59 F.3d 1196 (11th Cir. 1995)

We can think of no plainer error than to allow a conviction to stand under a statute which Congress was without power to enact. In essence, the statute was void ab initio, and consequently, the district court below lacked subject matter jurisdiction with respect to that charge. Accordingly, we reverse Walker's conviction under 18 U.S.C. § 922(q) (1) (A) and vacate the six month sentence imposed pursuant to that conviction.

Appellant claims that the trial court improperly excluded evidence that was necessary to his defense. We review a district court's evidentiary rulings for abuse of discretion. United States v. Freyre-Lazaro, 3 F.3d 1496, 1505 (11th Cir. 1993). We find no error.

First, appellant contends that the district court erred in excluding the testimony of ATF Agent Higgins to the effect that Walker had refused to allow himself to be fingerprinted when Agent Higgins visited him in jail two weeks prior to trial. The district court rejected Walker's argument that the information was relevant to show that he was not the sort of person who would assist the police in their investigation, and, hence, to support his claim that on the night he was arrested he did not confess to Agent Arroyo that "the gun is mine but not the drugs." We agree with the district court's reasoning that there was no logical connection between Walker's refusal to allow his fingerprints to be taken a year after his arrest and the issue whether Walker made a voluntary statement on the night of his arrest. Moreover, that information would more likely have been prejudicial to the appellant, since the more logical inference to be drawn therefrom would point to appellant's guilt. This is so because most people would expect that an innocent person would voluntarily give his fingerprints to help vindicate himself.

Second, Walker argues that the district court improperly prevented him from introducing, through Walker's own testimony, an alleged statement made by a man identified only as "Jeffrey" concerning Jeffrey's participation in the crime for which Walker was arrested. Although Walker failed to make a proffer, he argues in his brief that Jeffrey's statements would have placed Jeffrey at the scene and would have indicated that Jeffrey successfully avoided being captured by the police on the night of Walker's arrest. This evidence, Walker argues, would have supported his own testimony that he was purchasing drugs from Jeffrey, rather than selling drugs, on the night of his arrest.

Appellant argues that Jeffrey's out-of-court statement qualifies as a hearsay exception under Fed.R.Evid. 804(b) (3), which allows statements against a declarant's penal interest to be admitted in certain situations. The district court properly rejected this evidence.

Under Fed.R.Evid. 804(b) (3), statements that would otherwise be inadmissible as hearsay may be admitted if: (1) the declarant is unavailable; (2) the statement is against the declarant's penal interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. United States v. Gossett, 877 F.2d 901, 906 (11th Cir. 1989), cert. denied, 493 U.S. 1082, 110 S. Ct. 1141, 107 L. Ed. 2d 1045 (1990). Walker made no effort to show that Jeffrey was unavailable. Furthermore, Walker failed to proffer any evidence to corroborate Jeffrey's statements. In addition, Jeffrey's statements, as allegedly told to Walker, were inherently untrustworthy, as Walker had every motive to fabricate the story to corroborate his own defense. See United States v. Hendrieth, 922 F.2d 748, 750 (11th Cir. 1991) (court may consider in-court witness' motive to misrepresent the matter). We affirm the district court's exclusion of this evidence as inadmissible hearsay.

In his final point on appeal, appellant argues that the district court erred in refusing to allow him to challenge the constitutionality of two prior state convictions which served as the basis for his sentencing enhancement as a habitual offender under the Armed Career Criminal Act, 18 U.S.C. § 924(e). At sentencing, the district court refused appellant's attempt to challenge two prior convictions, both the result of nolo pleas during which appellant was represented by counsel, solely on the ground that the pleas were not knowingly and voluntarily obtained. Appellant's argument on this point has been specifically foreclosed by the Supreme Court's recent opinion in Custis v. United States, --- U.S. ----, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994). In Custis, the Court held that, with the sole exception of a conviction obtained in violation of the Sixth Amendment right to counsel, a defendant is precluded from collaterally attacking the constitutionality of prior state court convictions used to enhance his sentence as a habitual offender under 18 U.S.C. § 924(e) (1). Id. Accordingly, we affirm the district court on this issue.

Conclusion

Appellant's conviction for possession of a firearm in a school zone pursuant to 18 U.S.C. § 922(q) (1) (A) is hereby REVERSED and his corresponding six-month sentence for violation of that statute is VACATED. On each and every remaining issue, we affirm.

We REMAND solely for vacation of Walker's conviction on Count II and for an adjustment of his sentence in accordance with this opinion.