U.S. v. McCleskey, 98-4341

• Decision Date: 26 April 2000
• Docket Number: No. 98-4341,98-4341
• Citation: 228 F.3d 640
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Donald Richard McCleskey, Jr.,Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 640

228 F.3d 640 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Donald Richard McCleskey, Jr.,Defendant-Appellant.

No. 98-4341

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 26, 2000

Decided and Filed: October 4, 2000

Appeal from the United States District Court for the Southern District of Ohio at Dayton. No. 95-00010--Walter H Rice, Chief District Judge.

Michael B. Cohen, Chicago, Illinois, for Appellant.

Margaret Mary Quinn, ASSISTANT U.S. ATTORNEY, Dayton, Ohio, for Appellee.

Before: RYAN and BOGGS, Circuit Judges; DUGGAN, District Judge^*.

RYAN, J., delivered the opinion of the court. DUGGAN, D. J. (pp. 645-46), delivered a separate concurring opinion. BOGGS, J. (pp. 646-47), delivered a separate dissenting opinion.

OPINION

RYAN, Circuit Judge.

Defendant Donald Richard McCleskey, Jr., was convicted and sentenced for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846; use of a telephonic device in the commission of a felony, in violation of 21 U.S.C. § 843(b); and attempt to possess with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). We are required to decide whether oral and written statements given by McCleskey's accomplice Milton Rand, prior to trial, inculpating both himself and McCleskey, were properly admitted against McCleskey as statements against interest under Fed. R. Evid. 804(b)(3). We hold that the statements should not have been admitted because they violate McCleskey's rights under the Confrontation Clause of the Sixth Amendment. Therefore, we will reverse McCleskey's conviction and remand his case for a new trial.

I.

In December 1994, a vehicle being driven by Milton Rand was stopped for speeding in St. Louis County, Missouri. The demeanor and mutually inconsistent statements of Rand and his passenger, Joyce Daniels, aroused the suspicions of the police, who asked for permission to search the vehicle. Rand and Daniels both consented freely. The police found six kilograms of cocaine in a black duffel bag in the trunk of the car. Rand and Daniels were arrested, read their rights under Miranda v. Arizona, 384 U.S. 436 (1966), and brought to the headquarters of the St. Louis County Police Department "drug office."

At headquarters Rand was again advised of his Miranda rights, but nonetheless indicated his willingness to cooperate with the arresting authorities. He admitted to being a drug courier or "mule" engaged in the transportation of cocaine from Los Angeles, California, to Dayton, Ohio. He acknowledged making about four such trips between September and December 1994, all on behalf of the defendant, McCleskey. Each trip involved the transportation of between two and eight kilograms of cocaine. Rand signed a written confession.

Rand thereafter continued to cooperate with authorities to the extent of participating in a "controlled delivery" of six kilograms of ersatz cocaine to McCleskey on December 27, 1994. This delivery was audiotaped and monitored, as was a telephone call from Rand to McCleskey just prior to the delivery.

Ten days later, on January 6, 1995, Rand appeared at the offices of Daniels's counsel, wrote an unsworn statement recanting all portions of his previous confession which implicated McCleskey, and then went into hiding. The district court issued a warrant for Rand's arrest on January 13, 1995. On January 18, 1995, Rand, Daniels, and McCleskey were indicted by the grand jury. Rand's whereabouts remained unknown.

McCleskey was charged in four counts of the indictment: one count of conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count 1); one count of use of a telephonic device in the commission of a felony, in violation of 21 U.S.C. § 843(b) (Count 3); one count of attempt to possess with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 4); and one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g) (Count 5).

Before trial, with Rand still at large, the government moved that Rand's post-arrest statements be admitted as evidence against McCleskey. The district court ruled that the self-inculpatory portions of Rand's statements were admissible as "statements against interest" by an unavailable declarant under Fed. R. Evid. 804(b)(3), but that the noninculpatory portions were not admissible. Consequently, at trial, Rand's arresting officers were permitted to testify, over McCleskey's objections, to the portions of Rand's confession that were ruled admissible, which included Rand's self-inculpatory description of four trips to Los Angeles to procure cocaine on McCleskey's behalf, but which also included statements that were very inculpatory of McCleskey.

McCleskey was found guilty of Counts 1, 3, and 4 in May 1997. In December 1997, Rand was arrested and returned to federal custody. As McCleskey's sentencing had not yet occurred, Rand was able to appear at the sentencing hearing, where he testified to not four but approximately 21 trips as a cocaine courier for McCleskey. With the benefit of Rand's new testimony, the district court found the defendant responsible for 88 kilograms of cocaine, and imposed concurrent sentences of 292, 48, and 292 months' imprisonment. McCleskey's timely appeal followed.

II.

McCleskey makes three assignments of error: (1) that the district court erred in admitting Rand's statements against McCleskey because they are inadmissible hearsay; (2) that the district court erred in considering Rand's testimony at the sentencing hearing; and (3) that the district court erred in finding Rand's testimony to be credible. Because we agree with McCleskey's first assignment of error, we need not address his remaining arguments.

The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees to every criminal defendant the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. This right of confrontation has been interpreted as a right to subject the testimony of witnesses against the defendant to adversarial cross-examination. The law construing the Sixth Amendment right of confrontation and the evidentiary law of hearsay run along essentially parallel lines. A violation of one is generally, although not always, a violation of the other.

However, some types of statements, and some statements uttered in particular, well-defined contexts, usually those understood in federal evidentiary law to be within a codified exception to the hearsay rule or those labeled "not hearsay," are judged to be sufficiently reliable to permit the government to deny a defendant the right to subject them to cross-examination. Specifically, the Supreme Court has ruled that out-of-court declarations that are, by definition, "hearsay" are nevertheless admissible where the declarant is unavailable to testify at trial, providing the hearsay statements bear "adequate 'indicia of reliability.'" Ohio v. Roberts, 448 U.S. 56, 66 (1980).

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.

Here, the defendant challenges whether Rand's statement "falls within a firmly rooted hearsay exception."

Federal Rule of Evidence 804 provides:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

. . . .

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Fed. R. Evid. 804(b).

After indicating his understanding that the admissibility of Rand's statement was governed by the "statements against interest rule," the trial judge carefully examined Rand's written statement, as well as three reports written by law enforcement officials describing Rand's statement and the circumstances under which he provided it. The court then carefully redacted those sentences of the statement and the reports which contained no self-inculpatory elements, and admitted all other sentences--those containing some self-inculpatory element--as statements against Rand's interest under Fed. R. Evid. 804(b)(3). In each case the result of this redaction is a set of sentences inculpatory of Rand, but also highly inculpatory of McCleskey.

The court's ruling reveals a misunderstanding of Rule 804(b)(3). In the vast majority of instances in which Rule 804(b)(3) is relied upon, it is the defendant who relies upon the Rule to admit a statement, otherwise hearsay, which operates to exculpate him by inculpating the statement's declarant. See, e.g., United States v. Price, 134 F.3d 340 (6th Cir.), cert. denied, 525 U.S. 845 (1998); United States v. Paguio, 114 F.3d 928 (9th Cir. 1997); United States v. Innamorati, 996 F.2d 456 (1st Cir. 1993). Under such circumstances, the out-of-court statement is marked by significant indicia of reliability: a reasonable person who was not guilty of a crime would not normally falsely inculpate himself for the purpose of falsely exculpating another.

However, where, as here, it is the government which seeks to introduce a statement, otherwise hearsay, which inculpates its declarant but which, in its detail, also inculpates the...