United States v. Julison, 072913 ORDC, 3:11-cr-00378-SI

• Opinion Judge: MICHAEL H. SIMON, District Judge.
• Party Name: UNITED STATES OF AMERICA, v. MILES J. JULISON, Defendant.
• Attorney: S. Amanda Marshall, United States Attorney, District of Oregon, and Seth D. Uram, and Ryan W. Bounds, Assistant United States Attorneys, Portland, Oregon 97204-2902. Attorneys for Plaintiff. Patrick J. Ehlers, Federal Public Defender's Office, Portland, OR, Attorney for Defendant.
• Case Date: July 29, 2013
• Court: United States District Courts, 9th Circuit, U.S. District Court — District of Oregon

UNITED STATES OF AMERICA,

v.

MILES J. JULISON, Defendant.

No. 3:11-cr-00378-SI

United States District Court, D. Oregon, Portland Division.

July 29, 2013

S. Amanda Marshall, United States Attorney, District of Oregon, and Seth D. Uram, and Ryan W. Bounds, Assistant United States Attorneys, Portland, Oregon 97204-2902. Attorneys for Plaintiff.

Patrick J. Ehlers, Federal Public Defender's Office, Portland, OR, Attorney for Defendant.

OPINION AND ORDER ON THE GOVERNMENT'S MOTION IN LIMINE TO EXCLUDE HEARSAY STATEMENTS OF TERESA MARTY

MICHAEL H. SIMON, District Judge.

In this criminal case, Defendant Miles J. Julison is charged with two counts of making false claims against the United States, in violation of 18 U.S.C. § 287. Trial is scheduled to begin on August 5, 2013. The first count relates to Defendant's tax return filed for the year 2007. This tax return was filed by tax preparer Teresa Marty. Defendant asserts a defense of good faith reliance on a tax preparer. Defendant's counsel and an investigator, Mitzi Miller, interviewed Ms. Marty on two occasions in February and March 2013, and Defendant intended to call Ms. Marty as a witness for the defense at trial. On June 20, 2013, Ms. Marty was indicted on one count of conspiracy to defraud the government with respect to claims, in violation of 18 U.S.C. § 286, and 33 counts of filing false claims against the United States, in violation of 18 U.S.C. § 287. Because of the criminal charges pending against her, the parties agree that Ms. Marty intends to assert her Fifth Amendment privilege if called as a witness in Mr. Julison's trial. Defendant seeks to call investigator Miller to testify as to what Ms. Marty told Ms. Miller during the interviews. The government filed a motion in limine to exclude all testimony of the hearsay statements of Ms. Marty. Dkt. 179. For the reasons discussed below, the government's motion is granted in part and denied in part.

STANDARDS

Federal Rule of Evidence 804(b)(3) is an exception to the hearsay rule that provides for the admissibility of otherwise inadmissible hearsay statements when the proponent shows that: "(1) the declarant is unavailable as a witness; (2) the statement 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 he [or she] believes it to be true; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.'" United States v. Shryock , 342 F.3d 948, 981 (9th Cir. 2003) (quoting United States v. Paguio , 114 F.3d 928, 932 (9th Cir. 1997)). A declarant who intends to assert the Fifth Amendment is considered unavailable for purposes of this Rule. See Fed.R.Evid. 804(a)(1); Whelchel v. Washington , 232 F.3d 1197, 1204 (9th Cir. 2000).

The requirement of Rule 804(b)(3) that a statement be "against interest" does not require a confession of criminal responsibility, but can be satisfied by "remarks that tend to subject' the declarant to criminal liability." United States v. Fowlie , 24 F.3d 1059, 1068 (9th Cir. 1994); see also Paguio , 114 F.3d at 933 ("The word tending' broadens the phrase, so that the statement need not be a plain confession making the difference between guilty and not guilty."); United States v. Satterfield , 572 F.2d 687, 691 (9th Cir. 1978) ("If Congress had wanted courts to take a restrictive approach to whether a statement is against penal interest, it would not have chosen the broadly worded phrase tended to subject' in Rule 804(b)(3).'" (quoting United States v. Benveniste , 564 F.2d 335, 341 (9th Cir. 1977))). In addition, in considering whether a statement is against the penal interest of the declarant, the focus is on a "reasonable person in the declarant's position, " not the declarant him or herself. Fed.R.Evid. 803(b)(3)(A); see also United States v. Magana-Olvera , 917 F.2d 401, 407 (9th Cir. 1990); Satterfield , 572 F.2d at 691 n.1. Further, a court must view the statement in light of all the surrounding circumstances because a statement that is on its face neutral may actually be against the declarant's interest when considered in context. See Williamson v. United States , 512 U.S. 594, 603 (1994).

This hearsay exception is applied "in light of constitutional concerns regarding the exclusion of exculpatory evidence." Sanders v. Ratelle , 21 F.3d 1446, 1458 (9th Cir. 1994). Courts may not impede a defendant's right to put on a defense by imposing "mechanistic" or "arbitrary" rules of evidence to exclude exculpatory evidence. Cf. LaGrand v. Stewart , 133 F.3d 1253, 1266-67 (9th Cir. 1998) (discussing that states may not impose such rules). "Few rights are more fundamental than that of an accused to present witnesses in his [or her] own defense." Chambers v. Mississippi , 410 U.S. 284, 302 (1973). In exercising this right, however, a defendant must comply with the "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Id . But where a statement substantially implicates the declarant's penal interest, "the hearsay rule may not be applied mechanistically to defeat the ends of...