U.S. v. Popenas
| Decision Date | 26 December 1985 |
| Docket Number | No. 84-1668,84-1668 |
| Parties | -481, 86-1 USTC P 9169, 19 Fed. R. Evid. Serv. 960 UNITED STATES of America, Plaintiff-Appellee, v. Michael POPENAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard Zuckerman, argued, Troy, Mich., for defendant-appellant.
Stephen T. Robinson, argued, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.
Before MARTIN and CONTIE, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.
Michael Popenas was convicted of four counts of income tax evasion in violation of 26 U.S.C. Sec. 7201. The only question at trial was whether Popenas' failure to report substantial amounts of income during the years 1977 to 1980 was willful, as required by the statute. Popenas appeals two evidentiary rulings of the district court bearing on willfulness. We affirm the district court's admission of Popenas' prior tax returns, but must remand its decision concerning the admissibility of an affidavit of an available witness for analysis under Rule 803(24), Fed.R.Evid.
In its first and most significant ruling, the district court refused to admit an affidavit of an available witness as substantive evidence in the case. The affidavit was admitted for impeachment purposes. Popenas wished to introduce the affidavit of Victor Freliga, the attorney who prepared Popenas' tax returns, as substantive evidence that the falsehoods in the returns were due to Freliga's incompetence. The affidavit was inconsistent with much of Freliga's trial testimony. Popenas concedes that the affidavit was hearsay evidence, but argues that it should have been admitted under the residual exception to the hearsay rule, which reads as follows:
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
....
(24) Other exceptions
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
The district court avoided assessing the affidavit's admissibility under 803(24) by holding that it was a prior inconsistent statement which should be analyzed in the first instance under Rule 801(d)(1), Fed.R.Evid. This rule provides that a prior statement by a witness is not hearsay if
[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him....
Both parties acknowledge the affidavit is hearsay under 801(d)(1). According to the district court, classification of a prior statement of a witness as hearsay under 801(d)(1) precludes analysis under 803(24). Relying on the legislative debate prior to the adoption of 801(d)(1), the district court determined that the limitations found in this rule constitute the sole guidelines as to the admissibility of a witness' prior statements.
We cannot agree with such broad reasoning. The validity of the residual exceptions to the hearsay rule was expressly addressed by Congress during its consideration of the Federal Rules of Evidence. The House Judiciary Committee deleted the residual exceptions, but the Senate Judiciary Committee reinstated them, fearing that without these provisions the more established exceptions would be unduly expanded in order to allow otherwise reliable evidence to be introduced. S.Rep. No. 1277, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 7051, 7065-66. The limitations contained in the current rule illustrate the undeniably...
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State v. James Edward S.
...support its decision on admissibility. Where no such record is made, the reliability test has not been satisfied. See United States v. Popenas, 780 F.2d 545 (6th Cir.1985); State v. Horsley, 117 Idaho 920, 792 P.2d 945 (1990); State v. Brown, 341 N.W.2d 10 (Iowa 1983); State v. Carver, 380 ......
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People v. Katt, Docket No. 225632.
...is not limited in availability to types of evidence not addressed in the other firmly rooted exceptions); United States v. Popenas, 780 F.2d 545, 547-548 (C.A.6, 1985) (holding that residual hearsay exception is applicable where a statement does not meet requirements of more firmly rooted A......
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State v. Walker, 23
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U.S. v. Valdez-Soto
...not apply to out-of-court statements, court noted the possible use of Rule 803(24) as a basis for their admission); United States v. Popenas, 780 F.2d 545, 547 (6th Cir.1985) (reversing district court for not allowing admissibility of out-of-court statements to be argued under Rule 803(24) ......