United States v. Henderson, No. 13-1736 (7th Cir. 2013)

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Henderson was convicted of possessing a firearm as a felon, 18 U.S.C. 922(g)(1). On appeal, he argued that the district court abused its discretion in excluding an out‐of‐court statement of an unavailable declarant regarding the gun that Henderson was charged with possessing. The gun was found between the driver’s seat and seatback of a van in which Henderson and Rogers were travelling. Rosado, the owner of the van, told the prosecution that Rogers had told him that he just found the gun, brought it into the van, and was going to take it to the residence that he and Rosado shared. The Seventh Circuit affirmed, finding that the district court did not err in determining that Henderson failed to point to corroborating circumstances that clearly indicated that Rogers’ hearsay statement was trustworthy.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13 1736 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL HENDERSON, Defendant Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:11 cr 00074 1 Samuel Der Yeghiayan, Judge. ____________________ ARGUED SEPTEMBER 24, 2013 DECIDED DECEMBER 4, 2013 ____________________ Before POSNER, TINDER, and HAMILTON, Circuit Judges. TINDER, Circuit Judge. Michael Henderson was convicted of possessing a firearm as a felon. The only contested issue at trial was whether he possessed the gun; that the gun had been in interstate commerce and Henderson s status as a fel on were undisputed. See 18 U.S.C. § 922(g)(1). This appeal also presents a single issue: whether the district court abused its discretion in excluding an out of court statement of an 2 No. 13 1736 unavailable declarant regarding the gun that Henderson was charged with possessing? On August 10, 2010, at around 10:30 p.m., Henderson was driving a van accompanied by a passenger, Dexter Rog ers. The van was owned by Elberto Rosado, Rogers room mate. Chicago police officers Jason Bala and William O Brien stopped the van for failing to signal a turn. Both officers tes tified that, as they approached the van, they observed the driver furtively leaning forward and moving his right hand along his waistband toward the small of his back. The offic ers ordered the occupants of the van to show their hands, and the occupants complied. Henderson did not have a gun in his hands. The officers ordered Henderson and Rogers out of the van and handcuffed them. After Henderson was out of the van, Officer Bala ob served the handle of a handgun extending up from between the driver s seat and seatback. (The rest of the gun was tucked in between the seat and back.) Bala alerted Officer O Brien to the gun. O Brien testified that he could see about two inches of the butt of the gun protruding from the seat. (At oral argument, counsel confirmed that the front seats of the van were bucket seats.) Fingerprints were found on the gun, but an analyst testified that it could not be determined whose prints they were. During a pat down of Rogers, the officers found straws containing suspected cocaine. Hender son and Rogers were arrested. They were interviewed at the police station. Two other police officers testified that when Henderson was asked why he had the gun, he stated that he was unfamiliar with that neighborhood or gangs in the neighborhood and had the gun for protection. Henderson disputes that he made such a No. 13 1736 3 statement and offered evidence that he grew up in the area and has two children who live with their mother in the area. The interview was not recorded; no written statement was taken from Henderson. Rogers was not asked about the gun found in the van but he did pull a clear, knotted plastic bag from his genital area. The bag contained smaller zip lock bags containing a white powdery substance suspected to be crack cocaine. Rosado was interviewed by the government twice in January 2011, and then he testified before the grand jury that the gun was not his, he did not put it in the van, and he had no idea where it had come from. On March 5, 2012, one week before trial, Rosado stated for the first time to the gov ernment that he had visited Rogers in jail a few weeks after Rogers arrest and asked him what had happened. Accord ing to Rosado, Rogers said that he just found the gun and kept it, brought it into the van, and was going to take it to the residence that he and Rosado shared. Rosado remarked that what Rogers said did not make any sense, but he didn t question Rogers about it further. Rosado had met with the defense before the March interview with the government and had never mentioned Rogers supposed statement about the gun. The government moved to exclude Rosado s anticipated testimony about Rogers alleged statement as inadmissible hearsay. Henderson argued that the testimony was admissi ble under Rule 804(b)(3) as a statement against penal inter est. (If called to testify, Rogers, a convicted felon, would plead the Fifth Amendment regarding his possession of the gun.) The district court granted the motion. The court found first that the Statement is incredible on its face. Henderson 4 No. 13 1736 has not presented any reasonable explanation to show that it is plausible that Rogers found a loaded gun on the street. The court also found that even if the Statement was made, the totality of the circumstances indicates that the Statement was made to help Henderson out. Furthermore, the court determined that Henderson had failed to point to sufficient corroborating evidence to suggest that the Statement is trustworthy. Therefore, it concluded Henderson had not satisfied Federal Rule of Evidence 804(b)(3) s corroboration requirement and excluded the statement. At the conclusion of the trial, the jury returned a guilty verdict. Henderson contends that the exclusion of Rosado s testimony was erro neous, thereby justifying a new trial. We review the district court s evidentiary rulings for an abuse of discretion. United States v. Jones, 600 F.3d 847, 853 (7th Cir. 2010). The district court s determination as to the trustworthiness of out of court statements is entitled to considerable deference and should be upheld unless clearly erroneous. Id. (quoting United States v. Jackson, 540 F.3d 578, 587 (7th Cir. 2008)). Although hearsay is generally ex cluded from evidence, Rule 804(b)(3) authorizes its admis sion where (1) the declarant is unavailable as a witness, (2) the statement was against the declarant s interest when made, and (3) if the statement is offered to exculpate the de fendant, corroborating circumstances ¦ clearly indicate its trustworthiness. Fed. R. Evid. 804(b)(3); see also United States v. Hall, 165 F.3d 1095, 1112 (7th Cir. 1999) ( Rule 804(b)(3) expressly requires the exclusion of out of court statements offered to exculpate the accused unless there are corroborat ing circumstances that clearly indicate the trustworthiness of the statement ). The rule s corroboration requirement re flects a long standing concern ¦ that a criminal defendant No. 13 1736 5 might get a pal to confess to the crime the defendant was ac cused of, the pal figuring that the probability of his actually being prosecuted either for the crime or for perjury was slight. United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir. 1984). Henderson contends that the district court erred in ex cluding Rogers hearsay statement because corroborating circumstances clearly suggest that the statement was trust worthy. The government responds that the court properly found that Henderson offered nothing to corroborate the re liability of the statement and that the statement was incredi ble on its face. Henderson s brief raises a question about Rule 804(b)(3) s corroboration requirement. Does the rule require corrobora tion of the content of the hearsay statement or the fact that the statement was made, or both? The advisory committee s note instructs that [t]he requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication. Fed. R. Evid. 804 ad visory committee s note (1972). This may seem to suggest that corroboration is required for both. See 5 Clifford S. Fishman & Anne T. McKenna, Jones on Evidence § 36:88 (7th ed. 2012). Either the fact of the statement itself or its content is susceptible to fabrication. See Advisory Committee s Notes to Proposed Rules, Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 327 (1972) (explaining that one senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents, enhanced in either in stance by the required unavailability of the declarant ). 6 No. 13 1736 However, [a]s a matter of standard hearsay analysis, the credibility of the in court witness regarding the fact that the statement was made is not an appropriate inquiry. 2 K. Broun, McCormick on Evidence § 319 (6th ed. 2006) (footnotes omitted). Indeed, the Advisory Committee s Note to the 2010 amendment stated that the credibility of the witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. Id. The note explains that [t]o base admission or exclusion of a hearsay statement on the witness s credibility would usurp the jury s role of determining the credibility of testifying witnesses. Fed. R. Evid. 804 advisory committee s note (2010). The question of whether the declarant made the statement implicates the testifying witness s credibility; making credibility determinations is a role reserved to the jury. We have stated that Rule 804(b)(3) does not require that the statements themselves be clearly corroborated. United States v. Garcia, 986 F.2d 1135, 1141 (7th Cir. 1993). The rule requires only that corroborating circumstances clearly indi cate the trustworthiness of the statement. Id. [T]he corrobo ration requirement ¦ is a preliminary question as to the admissibility of evidence. Id. The district judge need not be completely convinced of the truth of the statement for the statement to be admissible. Id. It has been observed that: In the law of evidence, corroboration of tes timony just means that there is some evidence besides the testimony itself to indicate that the testimony is trustworthy not that it is neces sarily true, but (when it is a hearsay statement) No. 13 1736 7 that it is sufficiently worthy of belief to have value as evidence despite the impossibility of subjecting the declarant to the fires of cross examination. For the corroboration to clearly indicate the trustworthiness (though, again, not necessarily the truth) of the out of court statement requires a more probing inquiry, for example into the motive of the declarant to lie. United States v. Amerson, 185 F.3d 676, 691 (7th Cir. 1999) (Posner, J., dissenting) (citations omitted). Corroboration may be supplied by independent evidence supporting the statement itself, or by the circumstances in which the state ment was made suggesting that the statement is trustwor thy, or both. See, e.g., United States v. Butler, 71 F.3d 243, 253 (7th Cir. 1995) (considering whether there was direct evi dence which corroborates [the declarant s] exculpatory comments and then considering whether the circumstanc es surrounding [the declarant s] statement ¦ buttress[ed] its trustworthiness ); 5 Christopher B. Mueller & Laird C. Kirk patrick, Federal Evidence, § 8:131 (3d ed. 2007) ( Certainly the [corroboration] requirement is satisfied by independent evi dence that directly or circumstantially tends to prove the points for which the statement is offered. ). Thus, although not required, corroboration of the content of the hearsay statement may indicate that the statement is trustworthy. See Michael H. Graham, 7 Handbook of Federal Evidence § 804:3 (7th ed. 2012) (collecting cases). Henderson has not satisfied Rule 804(b)(3) s corrobora tion requirement. First, as the district court found, Rogers statement that he found a loaded gun somewhere is implau sible. A court can consider the statement itself in determin 8 No. 13 1736 ing whether it is sufficiently worthy of belief. See Handbook of Federal Evidence § 804:3 ( The information within the state ment itself may also be considered as an element of corrobo ration. Is the statement so contradictory as to be not credita ble? ) (quotation marks omitted). [S]pecious assertions ¦ lack corroboration and should be excluded. On the other hand, if a declarant is tied to the time and place of the crime and the statement has substantial plausibility, the corrobora tion requirement has been met. Id. (quotation marks omit ted). Rogers was in the van when the gun was discovered, which ties him to the time and place of the crime. Nonethe less, his claim to have found the loaded gun somewhere lacks substantial plausibility. The implausibility of Rogers statement is buttressed by the evidence of where the officers found the gun wedged in the driver s (Henderson s) seat. It would make little sense for Rogers, the passenger, to place the gun there, as opposed to another, more accessible loca tion in the van, if he intended to take it home. Moreover, Rogers statement was utterly lacking in factual detail: He did not state where he found the gun or when he found it; nor did he identify the type of gun he found. This lack of de tail suggests that Rogers was fabricating. See, e.g., Long Gang Lin v. Holder, 630 F.3d 536, 543 (7th Cir. 2010) ( A lack of de tail is a major clue that someone is lying. ); Jean R. Stern light & Jennifer Robbennolt, Good Lawyers Should Be Good Psychologists: Insights for Interviewing and Counsel ing Clients, 23 Ohio St. J. on Disp. Resol. 437, 488 (2008) ( Liars tend to offer fewer details [than truth tell ers] ). In addition, there is no independent evidence to corrobo rate the content of Rogers statement. No fingerprint evi dence was offered to show that Rogers had handled the gun. No. 13 1736 9 And Henderson presented no testimony from any witness who was with Rogers when he allegedly found the gun. Nor was there any testimony that anyone had seen Rogers with the gun. There was no evidence that Rogers repeated his statement about finding the gun to anyone other than Ro sado. Such evidence could buttress the statement s reliabil ity. We recognize that Henderson is not required to provide corroborating evidence of the information in Rogers state ment; however, the lack of such evidence is a circumstance the district court could consider in determining whether the statement was sufficiently trustworthy as to be admissible. Henderson argues that application of the factors identi fied in United States v. Jackson for consideration when deter mining whether corroborating circumstances exist suggests that testimony about Rogers statement was admissible. Even if a few of the factors lend some corroboration to Rog ers statement Rogers statement was voluntary, not calcu lated to curry favor with authorities; and there is no evi dence that Rogers gave conflicting statements, see 540 F.3d at 589 90, the district court determined that another one of the factors cut the other way: namely, the relationship between the declarant (Rogers) and the exculpated party (Hender son). Henderson challenges the court s determination that the totality of the circumstances suggested Rogers made the statement to help Henderson out. He argues that at the time of the statement weeks after he and Rogers were ar rested Rogers had no idea whether Henderson would be charged with possessing a firearm as a felon. Yet Henderson acknowledges that he and Rogers were friends; Rogers could have known that Henderson was a convicted felon. And Rogers, also a convicted felon, would have known that a fel on s possession of a firearm is a crime. Thus, there is reason 10 No. 13 1736 to believe that Rogers might think Henderson would be charged with possessing the firearm found wedged between the seat and back of the seat in which Henderson was sitting when it was found by law enforcement. This conclusion is buttressed by the officers testimony that they observed the driver s furtive movements of leaning forward and moving his right hand along his waistband to ward the small of his back. This testimony raises the infer ence that Henderson was attempting to conceal the gun from the officers. Common sense suggests that he was attempting to conceal the gun because he had something to hide. Be cause Rogers was right there in the passenger seat, he too should have been aware of Henderson s movements and at tempted concealment that suggested a motive to hide the gun from law enforcement. Therefore, we find no clear error in the district court s determination that the totality of the circumstances suggest that Rogers made the statement to help Henderson out. United States v. Hatfield, 591 F.3d 945 (7th Cir. 2010), on which Henderson relies, does not support admissibility in this case. In Hatfield, the defendants attempted to introduce the hearsay statements of a man who claimed that he and three other people had committed one of the pharmacy bur glaries of which the defendants were charged. There was no suggestion that the declarant knew any of the defendants. The declarant s statement was corroborated by the fact that he had called 911 while the burglary was in progress and in his initial statement to police, he had said that someone broke into the pharmacy by shattering the glass on the front door; this was evidence that the declarant was present at the burglary. Id. at 953. We concluded that the hearsay statement No. 13 1736 11 was sufficiently trustworthy and should have been admit ted. Id. In contrast, Rogers and Henderson are friends and Hen derson has offered next to nothing to corroborate Rogers statement that he found the gun somewhere, brought it into the van, and intended to take it home. Although Rogers was traveling in the van with Henderson, that fact is merely con sistent with rather than clearly corroborative of his state ment. See Butler, 71 F.3d at 253 (concluding that fact the de clarant was in the room where guns were found did not cor roborate exculpatory parts of declarant s statement that the defendant was not in the room and that the police planted the guns); Silverstein, 732 F.2d at 1347 (concluding that mere opportunity and ability to commit murder to which declar ant confessed was not clearly corroborative of confession but merely consistent with it where statement did not con tain facts that only the murderer could have known and where there was no other evidence linking declarant to the crime). Henderson takes certain language from United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990), out of context. Con trary to his assertion, it is not enough for him to show some corroborative evidence, id. at 1421, of Rogers statement; he is required to show that corroborating circumstances clearly indicate the trustworthiness of [the statement, id. at 1420 (emphasis added). He has not satisfied this requirement. Therefore, the district court did not commit clear error in determining that Henderson failed to point to corroborating circumstances that clearly indicate Rogers hearsay state ment was trustworthy. Accordingly, the court did not abuse its discretion in excluding that statement. The district court s judgment is AFFIRMED.

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