Commercial Litigation and Arbitration

Hearsay & Privilege — Statement to Own Counsel Not against Penal Interest (Rule 804(b)(3)) Because Confidential — Residual Exception: Dismal Public View of Lawyers Makes Exclusion of Testimony Reasonable under 807(a)

United States v. Awer, 2014 U.S. App. LEXIS 20700 (1st Cir. Oct. 29, 2014):

A federal jury convicted Defendant Kent Awer of possessing cocaine base with intent to distribute. He appeals.  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. The Facts

A. The Malibu

In the cool, early morning hours of May 2, 2006, an officer with the East Providence Police Department noticed a Chevy Malibu driving well over the speed limit in Rhode Island. He attempted to pull the car over. The Malibu, however, continued driving for a half-mile and changed lanes without signaling before finally submitting. The officer then approached the vehicle on foot, where he found Dianikqua Johnson behind the wheel, Defendant Kent Awer in the passenger seat, and a Mr. Simmons in the back.

Upon questioning, Johnson admitted she did not have a driver's  [*2] license. At the same time, Defendant leaned over Johnson and told the officer he had rented the car and they were traveling from New York City; he also produced the rental agreement. Another officer soon arrived, after which the officers arrested Johnson for being an unlicensed driver.

While securing Johnson, the two officers noticed Defendant moving suspiciously back in the Malibu. As a result, the officers converged on the car's passenger side to investigate. The officer who stopped the car observed Defendant sweating and breathing heavily, so he asked Defendant to exit the car. Defendant reached for the center console instead, prompting the officer to grab his hand and pull him from the car. Moments later, Defendant admitted he had marijuana in his pocket. An officer found it and arrested Defendant. In all, only three minutes or so passed between the initial stop and Defendant's arrest.

That left Simmons, who did not have a driver's [*3]  license, either. Moreover, the Malibu's rental agreement prohibited a third party from driving. Thus, the officers requested a tow truck for the Malibu. The officers searched the car before having it towed away. During this inventory search, the officers found over 500 grams of cocaine inside an unlocked bag in the trunk. The bag also contained men's clothes and documents bearing Defendant's name.

Defendant was later indicted in the District of Rhode Island for possessing with intent to distribute 50 grams or more of cocaine base [*4]  in violation of 21 U.S.C. § 841(a)(1).

B. The Driver

After her arrest, Johnson was placed in a police station holding cell. That same day, an attorney visited her. Johnson told this attorney she was responsible for the cocaine in the Malibu, not Defendant. The attorney advised Johnson to exercise her right not to incriminate herself. Johnson's silence, the attorney said, would be helpful for future plea negotiations.  Throughout her time in prison, however, Johnson openly inculpated herself numerous times, both with handwritten statements and in conversations with fellow inmates. Her first handwritten statement, which a Rhode Island Department of Corrections lieutenant notarized on June 25, 2006, reads as follows:

To the honorable Court's

I Dianikqua Johnson would like to speak on my behalf. I Dianikqua Johnson want to notify Providence Superior Court I take sole Responsibility of this charge I am being charge with (manufacturing/possessing/delivery of cocaine.) Mr. Simmons and Mr. Awer that's Being charge with me had no knowledge of my criminal activity. I also would like to thank the courts for taking time out to listen to this matter

Truthfully yours

Dianikqua Johnson

Her second statement, which was not notarized or [*5]  dated, reads:

I Dianikqua Johnson, would like to make a statement on my behalf. The charges I am being charge with Mr. Awer and Mr. Simmons I take full Responsibility of those charges. I acted alone. They didn't have no knowledge of my criminal activity.

On May 01, 2006, I called Mr. Awer to make sure he could give me a ride to Mass. He stated that he will give me a Ride. And would I Be able to drive Because he's Real tierd. I told him yes. This was around 8 pm. 15 minutes later he call to let me know he was downstairs in the parking lot of my grandmother projects (tompkins).

When I Reached the car Awer was already Relaxing in the passenger seat. I put my bags down by the trunk and I walk over to the driver side to open the door so I can pop the trunck on the car key chain. While I was at the trunk of the car, I took the packages of drugs were being charge out my hand Bag then put them in Awer's Black Ascot Bag. Because I felt his Bag had more spots to hide the drugs in it and it did. I then got in the car and Mr. Awer told me where to go to pick his friend Mr. Simmons up Before leaving for Mass. Picked him up on Wilougbie ave at 9 pm. I Got the Drugs from my uncle. Well I stole them; [*6]  I know we needed the money so I figure instead of my uncle using all of them, I can get rid of some. Sell a little and us a little.

Johnson also repeated her story to a later-appointed attorney.

Time and again, Johnson expressed intense worry that Defendant would be held responsible for her actions. She even refused a plea agreement because she feared hurting Defendant.

Tragically, in an apparently unrelated imbroglio, Johnson was murdered before she could appear at Defendant's trial.


For his defense, Defendant introduced Johnson's handwritten statements and the testimony of one of Johnson's cellmates and the officer who notarized her first statement. The cellmate testified she and Johnson were friends and she [*11]  "thought [Johnson] was honest." She also testified Johnson was often emotional and upset, and Johnson had asked her for advice about how to deal with a distressing situation. According to the cellmate, she advised Johnson to make a notarized statement on the subject. 


III. Johnson's Lawyers

Defendant next argues the district court abused its discretion by not allowing Johnson's attorneys to testify about her statements claiming responsibility for the drugs. This evidence, he contends, should have been admitted under either Rule 804(b)(3) or Rule 807 of the Federal Rules of Evidence. "We review the district court's evidentiary rulings for abuse of discretion." United States v. Mojica-Baez, 229 F.3d 292, 300 (1st Cir. 2000).

A. Rule 804(b)(3)

Hearsay is a declarant's out-of-court statement offered to prove the truth of the matter asserted. Fed. R. Evid. 801. With certain exceptions, hearsay is not admissible in federal court. Fed. R. Evid. 802. One exception is Rule 804(b)(3), under which hearsay is admissible if the declarant is unavailable to testify, and the statement--when made--would have tended to expose the declarant to criminal liability (among other requirements not in dispute). We look at all surrounding circumstances to determine whether a statement was against a declarant's criminal interest. See United States v. Pelletier, 666 F.3d 1, 8 (1st Cir. 2011).

The district court found Johnson's statements to her attorneys could not come in under Rule 804(b)(3) because they would not have exposed [*24]  her to criminal liability. We agree. The limited case law on point counsels for exclusion, and logically so. See, e.g., Revels v. Diguglielmo, No. Civ.A. 03-5412, 2005 WL 1677951, at *7 (E.D. Penn. July 18, 2005) (unpublished) (state court "correctly held that . . . Mr. Perrin's communications with his lawyer . . . were protected by attorney-client privilege and therefore not against his penal interest"); People v. Johnson, 482 N.Y.S.2d 188, 189 (N.Y. App. Div. 1984) ("[A] statement made to an attorney is confidential and, therefore, not adverse to one's penal interest . . . ."). Indeed, the primary case relied upon by Defendant, Morales v. Portuondo, 154 F. Supp. 2d 706 (S.D.N.Y. 2001), actually counsels against his position on Rule 804(b)(3). In Morales a man named Fornes confessed guilt to an attorney named Servino, and the court found this confession was against Fornes' penal interest. Id. at 712, 725-26. But Servino was not Fornes' attorney; rather, he represented Morales, who was charged with the crime to which Fornes confessed. Id. at 712. In short, no confidentiality or privilege was in play because Fornes "believed [Servino] would take the information to the prosecuting authorities." Id. at 726. Furthermore, Fornes confessed to another attorney (named Cohen) and the court found this confession was not against Fornes' criminal interest because Fornes had sought Cohen out for legal advice and thus "fully expected" that "Cohen would [*25]  keep his conversations . . . confidential." Id. at 713-14, 726. Again, on Rule 804(b)(3), Morales in no way favors Defendant.

Nevertheless, Defendant puts forth several additional arguments for why Johnson's statements to her attorneys were against her criminal interest. None of them hold water. First, he contends we must take "context" into account, see Williamson v. United States, 512 U.S. 594, 603 (1994) ("[W]hether a statement is self-inculpatory or not can only be determined by viewing it in context."), the pertinent context (according to Defendant) being that Johnson made identical statements to other people that were against her criminal interest. Defendant essentially asks us to adopt a sort of legal osmosis: Johnson made several statements against her criminal interest, so any statement containing the same information was against her criminal interest as well. This is nonsensical, as it would require us to do the very thing Defendant urges us not to do--ignore context. Although Johnson made a number of similar statements, those made in the context of the attorney-client privilege were simply not against her criminal interest.

Defendant tries a different twist along the same lines. Even if Johnson's statements to her attorneys were confidential, he asserts, her [*26]  later statements to third parties waived the attorney-client privilege, subjecting her to criminal liability. See In re Keeper of the Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003) ("[T]he attorney-client privilege may be waived . . . . When otherwise privileged communications are disclosed to a third party, the disclosure destroys the confidentiality upon which the privilege is premised."). Defendant did not contend there was a privilege waiver before the district court, however, meaning this argument is, ironically, waived. See Vázquez-Rivera v. Figueroa, 759 F.3d 44, 49 (1st Cir. 2014).

We decline to evade logic and case law. Johnson's statements to her attorneys were not against her criminal interest because, when made, they were confidential and protected by the attorney-client privilege. Thus, the district court correctly found her attorneys' proffered testimony about those statements to be inadmissible under Rule 804(b)(3).

B. Rule 807

Another exception to hearsay exclusion is the "Residual Exception," by which hearsay is admissible if: "(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting [*27]  it will best serve the purposes of these rules and the interests of justice." Fed. R. Evid. 807(a). In general, "Congress intended the residual hearsay exception to be used very rarely, and only in exceptional circumstances." United States v. Trenkler, 61 F.3d 45, 59 (1st Cir. 1995) (internal quotation marks omitted).

The district court excluded the testimony of Johnson's attorneys under Rule 807(a)'s third element. The attorneys' testimony would have been cumulative rather than more probative, the court found, because it was duplicative of Johnson's own notarized statements. Awer, 502 F. Supp. 2d at 276.

Defendant again relies on Morales to argue for admission. There, after ruling out Rule 804(b)(3), the court admitted Fornes' statements to attorney Cohen under Rule 807, in part because Cohen's testimony was "vital" to Morales' case. Morales, 154 F. Supp. 2d at 726. In line with this, Defendant argues the lawyers' testimony here was vital--i.e., more probative than Johnson's statements. He gives scattered reasons for this purported vitality, which we put into three broad categories: identity, context, and drama. First, identity: Defendant asserts the testimony is more probative because it comes from seasoned lawyers.

Second, context: Defendant contends the attorneys would have testified Johnson: (a) spoke confidentially, bolstering her credibility; [*28]  (b) told the attorney on the day of her arrest the cocaine was hers, making it unlikely she concocted the story later; (c) talked to both attorneys outside Defendant's presence, decreasing the possibility of coercion; (d) was very emotional and distressed that Defendant was being accused, bolstering her credibility, and (e) told them specifics of how she put the drugs in Defendant's bag without him knowing. Third, drama: Defendant argues the jury would have been more persuaded by live testimony than by "a piece of paper."

Defendant makes a reasonable--albeit flawed--argument.Problem is, a reasonable argument can also be made that a jury would find a detailed handwritten confession far more compelling than a lawyer's third-party account, no matter how much context the lawyer can provide.8 Likewise, a written account from soon after the incident removes all need to rely on a witness's memory of events long past. Because reasonable minds can disagree on whether the attorneys' testimony was vital, the district court's position-- that the testimony was not more probative than Johnson's written statements--cannot be an abuse of discretion, especially when Rule 807 is "to be used very rarely" and only in "exceptional circumstances." See United States v. Hughes, 535 F.3d 880, 882-83 (8th Cir. 2008) (district court did not abuse its discretion in declining to admit testimony under Rule 807 in part because "the excluded testimony was cumulative of Hughes's own testimony").

7 To give just one example of a flaw, Defendant's context and drama arguments are undercut by the fact that Johnson's cellmate testified in person, labeled Johnson "honest," and detailed Johnson's distressed emotional state.

8 The [*29]  public view of lawyers, after all, is verifiably dismal. See Public Esteem for Military Still High, Pew Research Center (July 11, 2013), public-esteem-for-military-still-high/ ("Among the 10 occupations the survey asked respondents to rate [for contribution to society], lawyers are at the bottom of the list." (emphasis added)).

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