U.S. v. Boyce

• Decision Date: 21 June 1988
• Docket Number: No. 87-5726,87-5726
• Citation: 849 F.2d 833
• Parties: 26 Fed. R. Evid. Serv. 37 UNITED STATES of America, v. Aaron BOYCE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 833

849 F.2d 833

26 Fed. R. Evid. Serv. 37

UNITED STATES of America, v. Aaron BOYCE, Appellant.

No. 87-5726.

United States Court of Appeals Third Circuit.

Argued May 5, 1988.

Decided June 21, 1988.

Joseph A. O'Brien (argued), Oliver, Price & Rhodes, Scranton, Pa., for appellant.

James J. West, U.S. Atty., James W. Walker (argued), Asst. U.S. Atty., Scranton, Pa., for appellee.

Before GIBBONS, Chief Judge, MANSMANN and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

This appeal arises from an order of the district court denying appellant Aaron Boyce's motions for a new trial and judgment of acquittal. Boyce was convicted by a jury of conspiracy and interstate transportation of stolen property. Upon review, we conclude that the district court committed prejudicial error by admitting a statement made by codefendant John McMahon into evidence against Boyce under the declarations against interest exception to the hearsay rule embodied in Rule 804(b)(3) of the Federal Rules of Evidence. Therefore, we will reverse Boyce's convictions, grant his motion for a new trial, and remand for proceedings consistent with this opinion.

I.

During the evening of October 3 and the early morning hours of October 4, 1983, a successful burglary occurred at Bartikowsky's Jewelers in Wilkes-Barre, Pennsylvania. The burglars circumvented the store's alarm system, entered its vault through a vent in the roof, and stole more than one million dollars worth of rings, watches, bracelets and other jewelry. Following an investigation into the burglary, the appellant, Aaron Boyce, was indicted on July 12, 1984 along with another defendant, John McMahon, and charged with interstate transportation of stolen property in violation of 18 U.S.C. Sec. 2314, and conspiracy to transport stolen property in violation of 18 U.S.C. Sec. 371.

At trial, the case against Boyce was built entirely on circumstantial evidence. A registration statement from the Barre Motel in Wilkes-Barre, Pennsylvania, indicated that three persons, including an individual calling himself either Aaron Boyce or Aaron Boyle, stayed in room 36 on October 2 and 3, 1983. The motel registration also listed Boyce's or Boyle's address as 11 E. 7th Street, Hoboken, New Jersey and indicated that he was driving a 1974 Mustang with New Jersey license plate number 869 UCI. New Jersey Department of Motor Vehicles ("DMV") records disclosed that an Aaron Boyle of 11 E. 7th Street, Hoboken, New Jersey had registered a 1974 Mustang, to which the DMV assigned license plate number 869 UCI. Further evidence presented at trial revealed that appellant Aaron Boyce, although not residing in Hoboken, resided at 11 E. 7th Street, Brooklyn, New York, with his mother and stepfather. A search of the Brooklyn apartment conducted pursuant to a search warrant approximately three weeks after the Bartikowsky burglary netted a large quantity of stolen jewelry, including jewelry identified as missing from Bartikowsky's Jewelers.

The most damning evidence introduced against Boyce was a prior written statement given by his codefendant, John McMahon. On June 18, 1984, McMahon gave a statement to Robert Rodenberg of the New York City Police Department and Gerald Fornino of the FBI while he was in custody at the Brooklyn House of Detention. At trial, during his direct examination, FBI agent Fornino read to the jury McMahon's statement:

"On September 30, 1983 ..., I [McMahon] drove to ... the Barre Motel, rented a room, Number 36. I checked out Bartikowsky Jewelers in Wilkes-Barre.

On September 30, 1983, I and two others went on the roof and checked for alarms. I started opening the roof and got through about 4:00 to 5:00 a.m., covered the hole and came back October 1st, 1983, and made sure no one noticed us.

Went through the roof 11:30 p.m., got into vault 4:00 a.m. and took watches, jewelry/three and one-half pillow cases.

I got back at 6:00 a.m. I went into 1975 Mustang, New Jersey plates. I came back with two others to Brooklyn and fenced goods."

App. at 65. McMahon voluntarily signed the statement, which was written on a government "advice of rights" form, indicating that he was fully apprised of his constitutional rights before making the declaration. However, McMahon gave the statement while in custody before he had the benefit of assistance of counsel.

At trial, McMahon exercised his fifth amendment rights and did not testify. Boyce's counsel made a timely objection to the admission of McMahon's statement on the alternate grounds that it was inadmissible hearsay, and that its admission violated Boyce's rights under the confrontation clause of the sixth amendment. The district court overruled Boyce's objections and admitted McMahon's statement pursuant to the "statement against interest" exception to the hearsay rule embodied in Rule 804(b)(3) of the Federal Rules of Evidence.

Based on the above evidence, on October 31, 1984, a jury convicted Boyce of both conspiracy and interstate transportation of stolen property. The district court sentenced Boyce to serve a term of ten years on the interstate transportation charge and two years on the conspiracy charge, the terms to run consecutively. In addition, the district court ordered Boyce to pay restitution in the amount of $1,278,903.00, less the value of any recovered merchandise, under authority of the Victim and Witness Protection Act, 18 U.S.C. Secs. 3663-64. On November 6, 1984, Boyce filed a motion for a new trial and a motion for judgment of acquittal. Almost three full years later, on October 9, 1987, the district court denied Boyce's motions for a new trial and judgment of acquittal. Boyce filed a notice of appeal with this Court on October 19, 1987.

II.

The principal problem raised in this appeal is whether the district court erred in admitting McMahon's statement into evidence under the declarations against interest exception to the hearsay rule embodied in Rule 804(b)(3) of the Federal Rules of Evidence. ¹ The justification for this exception to the hearsay rule "rests upon the assumption that one does not make statements that would damage [oneself] unless the statement is true." United States v. Palumbo, 639 F.2d 123, 127 (3d Cir.) (quoting United States v. Bailey, 581 F.2d 341, 345-46 n. 4 (3d Cir.1978)), cert. denied, 454 U.S. 819, 102 S.Ct. 100, 70 L.Ed.2d 90 (1981).

While Rule 804(b)(3) is often invoked by defendants to admit declarations against interest by a third party which exculpate the accused in a criminal case, this case involves a third-party declaration against interest which implicates the accused. This Court has recognized that "Rule 804(b)(3) may be invoked to admit declarations against interest by a third party which inculpate the accused." Palumbo, 639 F.2d at 129 (concurring opinion). However, in such cases the statement is received as substantive evidence only if (1) the declarant is unavailable as a witness, and (2) the statement is so far contrary to his pecuniary, proprietary or penal interest that "a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Fed.R.Evid. 804(b)(3). Of course, "[t]he conclusion that a 'reasonable person in [the declarant's] position would not have made the statement unless he believed it to be true,' often requires ... a sensitive analysis of the circumstances in which the statement was made and the precise nature of the statement." Palumbo, 639 F.2d at 127. Consequently, this Court and others have focused on a third, somewhat redundant, requirement that the trustworthiness and reliability of the statement be corroborated by the "totality of circumstances" in the case. See Palumbo, 639 F.2d at 127-28 (opinion of the court); Id. at 131 (concurring opinion); See, also United States v. Rasmussen, 790 F.2d 55, 56 (8th Cir.1986); United States v. Stratton, 779 F.2d 820, 828 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986).

The first requirement for the admissibility of McMahon's statement is met in this case. McMahon's invocation at trial of his fifth amendment right against self-incrimination made him "unavailable as a witness" within the meaning of Rule 804. ² Second, because McMahon's statement is a confession of criminal activity, on its face it appears contrary to his own penal interest such that a reasonable person in his position would not have made the statement unless he believed it to be true. However, a careful examination of the reliability of McMahon's statement also requires an analysis of the circumstances in which it was made. As this Court has observed, "a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest." Palumbo, 639 F.2d at 127 (quoting Advisory Committee Note to Rule 804). Therefore, we turn to an analysis of whether the trustworthiness of McMahon's statement is corroborated by the totality of circumstances in the case.

In determining whether McMahon's statement is corroborated by the totality of circumstances in this case, we must examine both the context in which the declaration was made, as well as its content. See United States v. Bailey, 581 F.2d 341, 349 (3d Cir.1978) ("the trustworthiness of a statement should be analyzed by evaluating not only the facts corroborating the veracity of the statement, but also the circumstances in which the declarant made the statement and the incentive he had to speak truthfully or falsely"). McMahon gave his statement while in custody at the Brooklyn House of Detention before he had the benefit of assistance of counsel. Apart from an indication that McMahon was appraised of his constitutional rights before signing the written statement, the record is barren concerning the circumstances surrounding his arrest and interrogation. There is nothing in the record which...