U.S. v. Bagley

• Decision Date: 16 August 1976
• Docket Number: No. 75-4046,75-4046
• Citation: 34 A.L.R.Fed. 403,537 F.2d 162
• Parties: , 1 Fed. R. Evid. Serv. 1179 UNITED STATES of America, Plaintiff-Appellee, v. William John BAGLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 162

537 F.2d 162

34 A.L.R.Fed. 403, 1 Fed. R. Evid. Serv. 1179

UNITED STATES of America, Plaintiff-Appellee, v. William John BAGLEY, Defendant-Appellant.

No. 75-4046.

United States Court of Appeals Fifth Circuit.

Aug. 16, 1976.

R. Bruce Kirwn, Federal Public Defender, Ralph Washington, Asst. Federal Public Defender, Atlanta, Ga., for defendant-appellant.

John W. Stokes, U.S. Atty., Robert A. Boas, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, McCREE ^* and TJOFLAT, Circuit Judges.

McCREE, Circuit Judge.

William John Bagley appeals from a jury conviction for possession with intent to distribute heroin, a schedule I controlled substance. 21 U.S.C. § 841(a) (1). He was sentenced to be placed in the custody of the Attorney General for 7 years and 6 months, to be followed by 3 years of mandatory parole. Appellant contends that the trial court erred in excluding a hearsay statement which he claims was admissible as a statement against the declarant's penal interest. We affirm.

On April 1, 1975, the time of the offense charged in the indictment, Bagley was confined in the U. S. Penitentiary in Atlanta, Georgia. He was stopped by a prison guard, and was subjected to a strip search that revealed a concealed package of heroin under his clothing. At trial for possession with intent to distribute heroin, he testified that another inmate, Schropshire, had given him the package of heroin at the handball court, and had told him that it contained Valium capsules. Bagley testified that Schropshire asked him to deliver the Valium to a friend in Cellblock B, and that he placed the package in his athletic supporter because he had been playing handball in gym clothes without pockets. Bagley stated that he was on his way to Cellblock B when he was stopped and searched.

Three inmates testified that they had been playing handball with Bagley, and that they had heard Schropshire ask Bagley to deliver some Valium capsules. Two other inmates testified that earlier on the same day Schropshire had asked them to deliver some Valium, but each stated that he had refused because he did not live in Cellblock B. A sixth inmate witness testified that he had overheard one of these conversations.

Bagley also offered the testimony of a seventh inmate, Bobby Duke. Duke had been Schropshire's prison cellmate, and he was expected to testify about a conversation that he had with Schropshire on the day that prison officials discovered the heroin in Bagley's possession. This proffered testimony was that Schropshire told Duke that he had asked Bagley to deliver some Valium, but then discovered that he had given Bagley a package of heroin instead. Duke was also expected to testify that after hearing of this mistake, he rushed out in an unsuccessful attempt to find Bagley and to warn him. Schropshire was not available as a witness because he died approximately one month after the discovery of the heroin, and before the trial began.

Rule 804 of the Federal Rules of Evidence governs the exception to the hearsay rule for declarations against interest. Rule 804(b)(3) provides that if the declarant is unavailable, the hearsay rule does not require the exclusion of a statement against interest:

(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 him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissable ¹ unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Thus the two questions presented here are (1) whether Schropshire's statement so far tended to subject him to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true, and (2) whether the corroborating circumstances clearly indicate the trustworthiness of the statement.

The trial court held that the proffered testimony failed to meet either of the two requirements under 804(b)(3):

THE COURT: All right. I don't believe that this is so far contrary to declarant's interest or so far tendered (sic) to subject him to criminal liability simply because of the circumstances under which it was rendered, that is to a close friend and cell mate, and that he would not have made the statement to this witness unless he believed it to be true. I think under the circumstances he could have only made this statement to this man believing it not to be true.

Secondly, I don't believe that there, that the corroborating circumstances clearly reveal the trustworthiness of the statement.

We hold that at the time Schropshire's statement was made it was sufficiently inculpatory that a reasonable person in his position would not have made the statement unless he believed it to be true. However, we also hold that the trial judge's determination that the surrounding circumstances did not clearly indicate the trustworthiness of the statement was not clearly erroneous, and we therefore affirm.

The threshold question is whether the statement so far tended to subject Schropshire to criminal liability that a reasonable man in his position would not have made the statement unless he believed it to be true. We think that the district court erred in holding that the statement was not against Schropshire's penal interest. The proffered statement conceded Schropshire's guilt of knowing possession of heroin-a felony punishable by imprisonment for not more than 15 years, or a fine of not more than $25,000, or both. 21 U.S.C. § 841(b)(1)(A). We do not think that a reasonable man would falsely admit the commission of a serious crime to his cellmate, knowing that there was a chance, even if slight, that this admission could be used to convict him and subject him to such severe penalties. The fact that the statement was made to a friend and cellmate has no relevance to the determination whether the statement was against the declarant's penal interest. However, the identity of the person to whom the statement was made, and the circumstances in which the disclosure was made are to be considered in assessing the trustworthiness of the statement. Accordingly, we think that the first requirement of Rule 804(b)(3) is met.

Rule 804(b)(3) also requires that corroborating circumstances "clearly indicate" the "trustworthiness" of the statement. The trial court held that the circumstances did not "clearly reveal" trustworthiness.

On appeal, the parties have not directed us to any authority identifying the standard of review to be applied to this determination, and we have found no cases clearly instructive on this question. Whether the statement was against the declarant's penal interest presented a question of law. However, consideration of the statement's trustworthiness will necessarily require review of findings of fact and will also require review of the trial court's application of a legal standard to these facts.

This situation is analogous to the review of a trial court's preliminary determination of the voluntariness of a confession. It is also like the review of a determination that evidence challenged as having been obtained in violation of the Fourth Amendment is admissible because there was consent to a search, or the search was incident to a valid arrest, or was dictated by exigent circumstances.

In reviewing a trial court's determination that a confession was voluntary, this circuit has applied the clearly erroneous standard. United States v. Maxwell, 484 F.2d 1350, 1352-53 (5th Cir. 1973); United States v. Montos, 421 F.2d 215, 219 n.1 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). This is in accord with the rule in other circuits, e. g. United States v. Reynolds, 496 F.2d 158, 162 (6th Cir. 1974); United States v. Crook, 502 F.2d 1378, 1380 (3d Cir. 1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 808, 42 L.Ed.2d 823 (1975). The Fifth Circuit, and others, have also applied the clearly erroneous test in reviewing a trial court's finding that there was consent to a warrantless search. United States v. Horton, 488 F.2d 374, 380 (5th Cir. 1973), cert. denied 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772 (1974); United States v. Cepulonis, 530 F.2d 238, 243-44 (1st Cir. 1976); United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976).

The absence of express findings of fact by the trial court does not prevent the application of this test in appellate review of preliminary evidentiary rulings. For example, in Scarbeck v. United States, 115 U.S.App.D.C. 135, 317 F.2d 546 (1962), cert. denied, 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077 (1963), the defendant argued that his confession was coerced and that the rule of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) had been violated. The trial court, which admitted the confession, made no findings of fact or law. The court of appeals held:

. . . we must uphold the ruling of the trial court if there is any reasonable view of the evidence that will support it. 317 F.2d 562.

In United States v. Lindsay, 165 U.S.App.D.C. 105, 506 F.2d 166, 170 (1974) the D.C. Circuit applied this rule to determine whether the evidence could support a finding of exigent circumstances, consent, or a search incident to a valid arrest:

We must determine whether the police's entry was justified by the "exigencies of the situation" or was constitutionally...