U.S.A v. Smalls
| Decision Date | 03 May 2010 |
| Docket Number | No. 09-2126.,09-2126. |
| Parties | UNITED STATES of America, Plaintiff-Appellant,v.Paul Othello SMALLS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Richard C. Williams, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with him on the brief), Las Cruces, NM, for Plaintiff-Appellant.
Jerry Daniel Herrera, Albuquerque, NM, for Defendant-Appellee.
Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
Where a declarant is unavailable to testify at trial, Fed.R.Evid. 804(b)(3) provides for the admissibility of “[a] statement which ... at the time of its making ... so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.” The issue in this interlocutory appeal, presented to us pursuant to 18 U.S.C. § 3731, is whether the district court abused its discretion in excluding as inadmissible hearsay, and thus as outside the scope of Rule 804(b)(3), the entirety of an accomplice's nontestimonial statement to a fellow inmate implicating the accomplice and Defendant Paul Othello Smalls in a murder. In holding that the district court abused its discretion, we remain mindful that “[t]he question under Rule 804(b)(3) is always whether the statement was sufficiently against the declarant's penal interest ‘that a reasonable person in the declarant's position would not have made the statement unless believing it to be true,’ and this question can only be answered in light of all the surrounding circumstances.” Williamson v. United States, 512 U.S. 594, 603-04, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (emphasis added).
Philip Gantz was assisting federal drug enforcement officials in their investigation of narcotics trafficking in Roswell, New Mexico. Prison officials at the Doña Ana County Detention Center in Las Cruces, New Mexico, found Gantz dead in his four-man overflow “cell” within the medical unit on the morning of December 30, 2004. Gantz shared the unit with fellow detainees Glenn Dell Cook, Walter Melgar-Diaz, and Defendant Smalls. Following an investigation, a federal grand jury indicted the three men on one count of retaliating against an informant and one count of conspiracy to commit the same in violation of 18 U.S.C. § 1513, one count of tampering with an informant and one count of conspiracy to commit the same in violation of 18 U.S.C. § 1512, and one count of killing a person aiding a federal investigation in violation of 18 U.S.C. § 1121. The indictment alleged Defendant Smalls “held Gantz's legs down,” Cook “held Gantz's arms and torso down,” and Melgar-Diaz “held a plastic bag over Gantz's face,” together resulting in Gantz's death by strangulation.1 Aplt's App. vol. I, at 41. After the Government indicated it would not seek the death penalty, Melgar-Diaz pleaded guilty under a sealed plea agreement. The district court severed the trials of Defendant Smalls and Cook as a result of an out-of-court statement Cook made to a confidential informant (CI), also an inmate at the detention center, implicating both himself and Defendant Smalls in the murder.2
Prior to the indictment, CI had informed investigators that he spoke with Cook on more than one occasion about Gantz's murder. Cook told CI that he, Defendant Smalls, and Melgar-Diaz had murdered Gantz. According to the district court: United States v. Cook, No. 06-CR-2403-RB-2, Sealed Findings of Fact and Conclusions of Law and Order Granting Motion to Suppress, at 2 (D.N.M. Sept. 29, 2008) (Doc. # 438) rev'd, 599 F.3d 1208 (10th Cir.2010).3 Agents subsequently fitted CI with a recording device and placed him in a cell alone with Cook, who at the time was awaiting sentencing on an unrelated drug conviction. At the behest of agents, CI engaged Cook in conversation by mentioning to him a recent newspaper article about an FBI investigation into Gantz's murder. When CI expressed concern that someone involved in the murder might “flip,” the following exchange occurred: 4
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