U.S. v. Riley

• Decision Date: 08 September 1981
• Docket Number: No. 80-1890,80-1890
• Citation: 657 F.2d 1377
• Parties: 8 Fed. R. Evid. Serv. 1665 UNITED STATES of America, Appellee, v. Claude Leander RILEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1377

657 F.2d 1377

8 Fed. R. Evid. Serv. 1665

UNITED STATES of America, Appellee, v. Claude Leander RILEY, Appellant.

No. 80-1890.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1981.

Decided Sept. 8, 1981.

Richard H. Zimmermann (argued), Mears, Zimmermann & Mears, Iowa City, Iowa, for appellant.

Robert L. Teig, Asst. U. S. Atty., Northern District of Iowa, Cedar Rapids, Iowa, for appellee.

Before ROSS, HENLEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Claude Leander Riley appeals from a final judgment entered in the District Court for the Northern District of Iowa upon a jury verdict finding him guilty of two counts of violating the Mann Act, 18 U.S.C. § 2423 (prohibiting the transportation in interstate commerce of a minor for purposes of prostitution). ¹ The district court sentenced appellant to ten years imprisonment on each count, to be served concurrently.

For reversal appellant argues that the district court erred in (1) admitting into evidence the out-of-court statements of Ms. Robinson and Ms. Richmond, (2) denying his motion for production of certain medical records, (3) denying his motion for a psychiatric examination of the government's chief witness, Ms. Carol Richmond, (4) refusing to open certain state juvenile records (health report from the Jo Daviess County jail), (5) admitting into evidence testimony about subsequent similar acts, (6) failing to dismiss the indictment on the grounds of preindictment delay, (7) denying his motion for production of the FBI criminal records or rap sheets of the government witnesses, and (8) failing to declare a mistrial following testimony about a polygraph examination. We have carefully reviewed the record in light of appellant's allegations of error and for the reasons discussed below reverse and remand for a new trial.

In late April, 1979, appellant drove from Minneapolis, Minnesota, to Dubuque, Iowa, accompanied by Ms. Velda Robinson, and their infant son, Sean, and two young women, Ms. Carol Richmond, the chief government witness, then aged sixteen, and Ms. LaDonna Stuhr, also aged sixteen. Appellant testified that they had driven to Dubuque hoping to find Ms. Robinson work as a nightclub or bar dancer. The group checked into a motel in Dubuque but traveled to East Dubuque, Illinois, on three successive evenings. According to the government's theory of the case, the women went from bar to bar, engaged in prostitution, and turned the money over to appellant.

The only fact in dispute at trial was whether or not appellant transported Ms. Richmond, a minor, in interstate commerce with the requisite intent that she engage in prostitution. Ms. Richmond's testimony and her two out-of-court statements supported the government's theory of the case. Ms. Robinson could not be located before trial, but her edited out-of-court statement was admitted into evidence. Ms. Robinson's statement was consistent with those of Ms. Richmond. Appellant testified and admitted driving Ms. Richmond and the others from Minneapolis to Dubuque and into East Dubuque, but vigorously denied encouraging prostitution, transporting anyone for purposes of prostitution, or profiting from any prostitution.

The jury convicted appellant on two of the three Mann Act counts charged in the indictment. This appeal followed.

I. Out-of-Court Statements

Appellant argues that the district court erred in admitting into evidence the out-of-court statements of Ms. Robinson and Ms. Richmond. Appellant argues the admission of these statements violated the hearsay rule and his right to confrontation and to a fair trial.

A. Ms. Robinson

Ms. Robinson was unavailable as a witness at trial. The government read into evidence an edited ² statement made by Ms. Robinson to local law enforcement officers in Illinois shortly after the events charged in the indictment. This statement was consistent with the government's theory of the case and corroborated Ms. Richmond's version of the events. Ms. Robinson's statement, as edited and read to the jury, described the trip to Dubuque and East Dubuque and related that she (Ms. Robinson) and Ms. Richmond engaged in prostitution in East Dubuque. The statement further related that appellant was a member of the group that went to East Dubuque, a fact which appellant admitted. Appellant specifically challenges the admissibility of this statement on the grounds that the statement was hearsay and not against Ms. Robinson's penal interest and that there was no opportunity for cross-examination of the declarant (Ms. Robinson). ³ The government argues the statement was properly admitted under the statement against penal interest exception to the hearsay rule, Fed.R.Evid. 804(b)(3). ⁴

The admissibility of collateral inculpatory ⁵ declarations against penal interest under Fed.R.Evid. 804(b)(3) presents a controversial and complex evidentiary problem. See United States v. Mock, 640 F.2d 629 (5th Cir. 1981); United States v. Palumbo, 639 F.2d 123 (3d Cir. 1981); United States v. Winley, 638 F.2d 560 (2d Cir. 1981); United States v. Robinson, 635 F.2d 363 (5th Cir. 1981) (per curiam); United States v. Lieberman, 637 F.2d 95 (2d Cir. 1980); United States v. Sarmiento-Perez, 633 F.2d 1092 (5th Cir. 1980); United States v. Oliver, 626 F.2d 254 (2d Cir. 1980); United States v. Garris, 616 F.2d 626 (2d Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3021, 65 L.Ed.2d 1119 (1980); United States v. Love, 592 F.2d 1022 (8th Cir. 1979); United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978); United States v. Bailey, 581 F.2d 341 (3d Cir. 1978); United States v. Lilley, 581 F.2d 182 (8th Cir. 1978); United States v. White, 553 F.2d 310 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). See generally 4 J. Weinstein & M. Berger, Weinstein's Evidence P 804(b)(3) (1977) (hereinafter Weinstein's Evidence); Tague, Perils of the Rulemaking Process: The Development Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception, 69 Geo.L.J. 851 (1981) (hereinafter Tague); Comment, Federal Rule of Evidence 804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Calif.L.Rev. 1189 (1978) (hereinafter Comment).

Departing from the common law which required declarations against interest to be against the declarant's pecuniary or proprietary interest, Fed.R.Evid. 804(b)(3) also includes declarations against penal interest. See note 4 supra. "The circumstantial guaranty of reliability for declarations against interest is the (common sense) ( ⁶ assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true." Fed.R.Evid. 804(b)(3), Advisory Committee Notes Exception (3). Fed.R.Evid. 804(b)(3) permits the admission of an extrajudicial declaration against the declarant's penal interest if (1) the declarant is unavailable and (2) the statement 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 he or she believed it to be true. Further, the rule requires that an exculpatory statement offered by the accused is not admissible unless "corroborating circumstances clearly indicate the trustworthiness of the statement." Fed.R.Evid. 804(b)(3).

"The rule does not refer to a troublesome type of declaration against penal interest (at issue in the present case): the inculpatory statement against the penal interest of the declarant which also implicates and is sought to be admitted against the defendant." Comment, supra, 66 Calif.L.Rev. at 1190 (footnote omitted). Although the legislative history is unclear, Congress probably intended to admit inculpatory statements which satisfy the requirements of the rule and the confrontation clause. See United States v. Palumbo, supra, 639 F.2d at 129-30 (Adams, J., concurring) (discussion of legislative history); United States v. Sarmiento-Perez, supra, 633 F.2d at 1098 ("(T)he rule clearly contemplates the admission, under appropriate circumstances, of such inculpatory (to a criminally accused) statements against the declarant's penal interest."). See also Tague, supra, 69 Geo.L.J. at 892-97; Comment, supra, 66 Calif.L.Rev. at 1191-98. But see Weinstein's Evidence, supra, P 804(b)(3)(03), at 804-93.

Several recent cases from this circuit have tested inculpatory declarations under Fed.R.Evid. 804(b)(3) and thus implicitly assumed their admissibility. See United States v. Goins, 593 F.2d 88, 91 (8th Cir.), cert. denied, 444 U.S. 827, 100 S.Ct. 52, 62 L.Ed.2d 35 (1979); United States v. Love, supra, 592 F.2d at 1024-26; United States v. Lilley, supra, 581 F.2d at 187-88; cf. Witham v. Mabry, 596 F.2d 293, 296-97 (8th Cir. 1979) (habeas corpus). These cases, however, stop short of a comprehensive analysis, largely because in the individual case the declaration at issue, whether inculpatory (as in Love and Lilley ) or exculpatory (as in Witham ), was found to have been inadmissible under the rule itself, for example, because the declaration was not in fact against the penal interest of the declarant at the time it was made. The rules discussion in the Goins case is very brief and sets forth no general guidelines, other than noting that "the identity of the party to whom the statement was made is only one of several factors under Fed.R.Evid. 804(b) (3)." 593 F.2d at 91.

After considering the cases of this circuit and other circuits and the views of commentators, we approve in general the three-pronged test for admissibility of inculpatory declarations against interest developed in United States v. Alvarez, supra, 584 F.2d at 701. Thus, we hold that before an inculpatory statement against penal interest is admissible under Rule 804(b)(3), it must be shown that (1) the declarant is unavailable as a witness, (2) the statement must so far tend to subject the declarant to criminal liability that...