U.S. v. Tovar

Decision Date01 September 1982
Docket NumberNo. 82-1166,82-1166
Citation687 F.2d 1210
Parties11 Fed. R. Evid. Serv. 948 UNITED STATES of America, Appellee, v. Juan Manuel TOVAR, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

James M. Rosenbaum, U. S. Atty., John M. Lee, First Asst. U. S. Atty., D. Minn., Minneapolis, Minn., David Soucy, Legal Intern, for appellee.

Robert A. Brunig, O'Connor & Hannan, Minneapolis, Minn., for appellant.

Before BRIGHT and HENLEY, * Circuit Judges, and BARTLETT, ** District Judge.

PER CURIAM.

Juan Manuel Tovar appeals from his conviction for stealing postal money orders in violation of 18 U.S.C. Sec. 641 and transmitting unlawfully issued money orders in violation of 18 U.S.C. Sec. 500.

Tovar alleges several errors in the admission or suppression of evidence and also contends that 18 U.S.C. Sec. 500 was not violated because there was no illegality on the part of postal employees. We affirm for the reasons explained below.

On January 7, 1980, a white male went to the Upper Nicollet postal station in Minneapolis, Minnesota, and ordered ten $300 money orders. The postal clerk filled them out and laid them on the counter. The thief grabbed them and ran out the door. Six of the money orders were cashed in Kansas City, Missouri, the next day. They were endorsed "Michael A. Guerra" and bore Tovar's fingerprints. The other four money orders were cashed in Oklahoma City, Oklahoma, the second day after the robbery.

1. Exculpatory Statements

Tovar's first contention is that the District Court 1 should have allowed the introduction of an exculpatory statement made by Deck Brewer under the statement against penal interest exception to the hearsay rule (Federal Rule of Evidence 804(b)(3)) and also under the exception for other trustworthy statements of out of court declarants (Federal Rule of Evidence 804(b)(5)).

Tovar's attorney as well as an investigator interviewed Brewer after Brewer had been convicted of an unrelated crime. Brewer stated that a friend, Marny Parsons, had obtained the money orders from a "white trick." Brewer and Parsons then traveled to Brownsville, Texas, where they met Tovar, gave him the money orders and some cash, and asked him to procure marijuana for them. Tovar was unable to buy marijuana and gave the money orders and cash back to Brewer. Brewer was called as a witness at Tovar's trial but invoked his privilege against self-incrimination when questioned about his statements. The Court refused to admit in evidence Brewer's statements made to Tovar's attorney and the investigator.

Tovar argues first that Brewer's statements were admissible under Rule 804(b) (3) which provides:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or propriety 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 admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Three elements must be satisfied before exculpatory statements qualify as statements against penal interest under Rule 804(b)(3): (1) the declarant must be unavailable as a witness; (2) the statement must be one which so far tended to subject the declarant to criminal liability that a reasonable person in his position would not have made it unless he believed it to be true; and (3) there must be corroborating circumstances that clearly indicate the trustworthiness of the statement.

It is undisputed that Brewer was unavailable to testify as a witness. The District Court refused to admit these statements because the Court concluded that Brewer did not believe that the statements were against his penal interest and that corroborating circumstances did not clearly indicate the trustworthiness of the statements.

In determining whether a declarant's statement is against his penal interest we look at the practical significance of the declarant's statements in light of all the circumstances. Witham v. Mabry, 596 F.2d 293, 297 (8th Cir. 1979). The underlying policy of the statement against penal interest exception of Rule 804(b)(3) "rests on the assumption that persons will not make damaging statements against themselves unless they are true. As a psychological generalization, this conclusion rings true; in the individual case, the diversity of the human personality makes generalizations suspect." 4 J. Weinstein & M. Berger, Weinstein's Evidence, para. 804(b)(3)(01).

The circumstances surrounding Brewer's statements are important because "a particular statement which is ostensibly disserving may in fact be either neutral or self-serving." United States v. Riley, 657 F.2d 1377, 1384 (8th Cir. 1981). When the oral and unsworn statements were made to Tovar's attorney and the investigator Brewer had already pleaded guilty to the robbery of the Lowry Hill Postal Station in Minneapolis. The statements were made both before and after he was sentenced to prison. Brewer did not admit stealing the money orders or even that he knew they were stolen. United States v. Love, 592 F.2d 1022, 1026 (8th Cir. 1979).

Furthermore, when questioned out of the presence of the jury, Brewer stated that:

Q. Have you ever stated that you felt responsible because you knew that Tovar was innocent of any wrongdoing in connection with the charges on which he is before the Court?

A. Well, I feel responsible for a lot of things that have happened in Minnesota since I came here. I came here and I was running from the policemen in another state for a crime, and I have been running for six or seven months. I was a bit insane, and it seemed like everybody I came in contact with over here, good people, come to court and families have been embarrassed and everything, so I feel responsible for a lot of people, truthfully. I know a lot of things have happened over here that is basically my fault. If there was some way that all of the responsibility could be put on me and everybody would be free of embarrassment, I wish I could receive that and be done with it.

Based on these circumstances we agree with the District Court that Brewer, or a reasonable man in his position, might well have made these statements without believing them to be true. Brewer knew that he was going to prison and wished to help out a friend for whom he felt responsible.

Even if we assume that Brewer's statements were against his penal interest, the District Court did not err in concluding that Brewer's statements were not corroborated by circumstances clearly indicating their trustworthiness. The only corroboration for Brewer's statements that he had taken the money orders to Brownsville, Texas, was supplied by Tovar's trial testimony. Tovar testified that Brewer had come to Brownsville, Texas, in January of 1980, and that Tovar attempted unsuccessfully to buy marijuana for Brewer with the cash and money orders Brewer provided.

Tovar's testimony corroborating Brewer's statements is suspect and is outweighed by the incredible scenario suggested by Brewer. The money orders were stolen on January 7, 1980, and six of them, later found to bear Tovar's fingerprints, were negotiated in Kansas City, Missouri, the following day. The other four were cashed in Oklahoma City, Oklahoma, on the second day following the robbery. Thus, for Brewer's statements to have been true the following sequence of events would have had to occur between the time the money orders were stolen in Minneapolis and two days later when four money orders were cashed in Oklahoma City. Parsons received $1,800 in stolen money orders from a "white trick." She and Brewer traveled from Minneapolis to Brownsville, Texas, on the Mexican border where they met Tovar. Tovar took the money orders and some cash and tried unsuccessfully to purchase marijuana (thus explaining Tovar's fingerprints on the money orders). Then Brewer and Parsons backtracked to Kansas City and negotiated several of the money orders. Thereafter, they turned around and went southwest again, to Oklahoma City, where on the following day they cashed the rest of the stolen money orders.

Brewer did not suggest either the means of travel or the motive for this unlikely odyssey. While this itinerary might not be impossible, it is so remarkable that we cannot conclude that the District Court erred in determining that Brewer's statements were not corroborated by circumstances clearly indicating that they were trustworthy.

Tovar also urges that Brewer's statements should have been admitted under the "other exceptions" provision of Federal Rule of Evidence 804(b)(5). The same reasons which cause us to conclude that Brewer's statements were not admissible under Rule 804(b)(3) require us to reject Tovar's Rule 804(b)(5) contention. "There is a lack of surrounding circumstances which are indicative of a strong propensity for truthfulness which are present in the traditional hearsay exceptions." United States v. Love, 592 F.2d 1022, 1027 (8th Cir. 1979).

2. Handwriting Exemplars

Tovar next contends that the handwriting exemplars obtained from him should have been suppressed. Tovar was arrested by state officials in Louisiana in late 1981 on charges unrelated to this action. While Tovar was in state custody the Louisiana authorities learned from the National Crime Information Center that a warrant had been issued for Tovar's arrest in the District of Minnesota. Tovar was released to federal custody in Louisiana. An attorney was appointed to represent him in the removal proceedings that resulted in his transfer to Minnesota. Shortly after...

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