*1 day, what had worn to school that she America, during

the time she ate lunch at UNITED which STATES Plaintiff-Appellee, FBI Bailey’s school. The then seized com- puter explicit and retrieved several mes- sages that were identical to or similar to McCLESKEY, Donald Richard in-

those the minors had described. The Jr., Defendant-Appellant. ternet user names of the minors were also Bailey’s retrieved from hard drive. Sever- No. 98-4341. al e-mails wherein proposed Stealth725 meeting girls perform oral sex were Appeals, United States Court of Bailey read into the record. himself testi- Sixth Circuit. up fied that he had tried to set meetings Argued: April times, people eight six or different though meeting he claimed no had ever Decided and Filed: Oct. place, just game, taken that it was all and that the minors were either mistaken lying telling ages.

or about him their prosecution pre must have objective, evidence

sented overt acts jury

that would allow a reasonable to find

Bailey had taken a substantial step toward

persuading, inducing, enticing, coercing or

a minor to engage illegal activity. sexual

“A step substantial must be something preparation....

more than mere [I]t necessary

must be to the consummation of

the crime and be of such a nature that a observer, viewing

reasonable it context beyond

could conclude a reasonable doubt

that it was undertaken in accordance with

a design to violate the statute.” United (2d v. Manley,

States 632 F.2d 987-88

Cir.1980).

The evidence this case was sufficient

for a jury guilt reasonable to find of at-

tempt persuade beyond a reasonable

doubt, they judgment did. The

conviction are AFFIRMED.

641 briefed), (argued Michael B. Cohen Illinois, Chicago, Defendant-Appellant. for Quinn Margaret Mary (argued and briefed), Attorney, Dayton, Assistant U.S. Ohio, Plaintiff-Appellee. for BOGGS, RYAN and Circuit Before: DUGGAN, Judge.* Judges; District RYAN, J., opinion delivered the of the DUGGAN, 645-46), (pp. court. D.J. opinion. separate concurring delivered BOGGS, 646-47), delivered a (pp. J. dissenting opinion. separaté OPINION RYAN, Judge. Circuit McCleskey, Donald Richard Defendant Jr., convicted and sentenced con- was possess with intent to distribute spiracy cocaine, kilograms in excess of five 846; § use of a violation of U.S.C. in the commission of a telephonic device 843(b); § felony, in violation of U.S.C. possess with intent to dis- attempt kilograms five of co- tribute excess of * sitting designation. Michigan, Duggan, United The Honorable Patrick J. Judge for the Eastern District States District 841(a)(1).

caine, § in violation of 21 December delivery U.S.C. 1994. This required monitored, to decide whether We oral audiotaped and as was a tele- given by and written statements McCles- phone just call from McCleskey Rand to Rand, key’s accomplice prior Milton to tri- prior delivery. to the *3 al, inculpating both himself and McCles- later, days Ten January on key, properly against were admitted appeared at Rand the offices of Daniels’s McCleskey as statements counsel, wrote an unsworn statement re- under Fed.R.Evid. We hold canting all portions previous of his confes- that the statements should have been which implicated McCleskey, sion and then they McCleskey’s admitted because violate hiding. went into The district court issued rights under the Confrontation Clause of 13, a warrant January for Rand’s arrest on Therefore, the Sixth Amendment. will we 18,1995, Rand, Daniels, January 1995. On McCleskey’s reverse conviction and re- McCleskey by grand and were indicted the mand his case for a new trial. jury. Rand’s whereabouts remained un- I. known. 1994, In December a vehicle being driv- McCleskey charged in four counts by stopped speed- en Milton Rand was of the indictment: one count of conspiracy in ing County, Louis St. Missouri. The possess to with intent to distribute in ex- mutually demeanor and inconsistent state- cocaine, kilograms cess of five in viola- ments of Rand and his passenger, Joyce (Count 1); § tion of 21 U.S.C. 846 one Daniels, suspicions aroused the po- the count of use of a telephonic device lice, permission who asked for to search felony, commission of in violation of 21 the vehicle. Rand and Daniels both con- 843(b) (Count 3); § U.S.C. one count of freely. police sented found six kilo- attempt possess to with intent to distribute grams of cocaine in a bag black duffel cocaine, kilograms excess of five the trunk of the car. Rand and Daniels (Count 841(a)(1) § 21 violation of U.S.C. arrested, read their rights under Mi-

were 4); possession and one count of of a fire- Arizona, randa v. 436, 86 S.Ct. felon, by arm in violation of 18 U.S.C. 1602, (1966), brought and (Count 5). § 922(g) to the headquarters of the St. Louis Coun- ty Police Department “drug office.” trial, Before large, with Rand still at

At headquarters again Rand was government ad- post-arrest moved Rand’s vised of his Miranda rights, but nonethe- admitted evidence less willingness cooperate indicated his to against McCleskey. The court district arresting with the authorities. He admit- ruled that the self-inculpatory portions of ted to being drug courier or “mule” Rand’s statements were admissible as engaged transportation in the of cocaine “statements interest” an un- California, Angeles, from Los Dayton, to available declarant under Fed.R.Evid. acknowledged making Ohio. He about four 804(b)(3), but that noninculpatory por- such trips September between and Decem- tions were not Consequently, admissible. 1994, ber all on behalf of the trial, arresting at Rand’s per- officers were McCleskey. trip Each involved the trans- testify, McCleskey’s objec- mitted to over portation eight between two and kilo- tions, to the portions of Rand’s confession grams of signed cocaine. Rand a written admissible, that were ruled which included confession. self-inculpatory description Rand’s of four Rand trips Angeles procure thereafter continued to to Los cooperate cocaine on behalf, participat- McCleskey’s authorities to extent of which but also includ- ing in a delivery” “controlled of six ed very inculpatory kilo- statements that were grams of ersatz McCleskey cocaine to on of McCleskey.

643 1, subject them to cross-examination. of Counts guilty was found McCleskey 1997, Court has ruled Specifically, In December May 4 in 1997. are, to federal arrested and returned that out-of-court declarations that Rand was McCleskey’s sentencing definition, had As ad- custody. “hearsay” nevertheless occurred, appear Rand was able to yet where the declarant is unavailable missible he testi- hearing, where sentencing trial, at the testify providing trips 21 approximately four but fied to not “adequate bear ‘indicia of relia- ” McCleskey. With cocaine courier for Roberts, as a bility.’ Ohio v. U.S. testimony, new benefit of Rand’s (1980). L.Ed.2d 100 S.Ct. respon- court found the defendant

district more Reliability can be inferred without cocaine, im- kilograms of sible for 88 within in a case where the evidence falls *4 of concurrent sentences posed firmly hearsay exception. rooted McCleskey’s imprisonment. 292 months’ cases, other the evidence must be ex- timely followed. appeal cluded, showing par- at least absent a of guarantees ticularized of trustworthi- II. ness. of McCleskey assignments makes three Id. (1) erred in that the district court error: Here, challenges the defendant whether against admitting Rand’s firmly Rand’s statement “falls within they are inadmissible McCleskey because hearsay exception.” rooted (2) the district court erred hearsay; that testimony at the sen- considering Rand’s provides: Federal Rule of Evidence 804 (3) the district hearing; and tencing by not following The are excluded testimony to finding Rand’s court erred if unavail- hearsay rule the declarant is agree Because we be credible. as a witness: able error, we McCleskey’s assignment first of remaining arguments. his need not address (3) against interest. A Statement the Sixth The Clause of Confrontation at the time of its which was statement Constitu- Amendment to the United States making contrary so far to the declarant’s criminal defen- every to guarantees tion interest, or so proprietary or pecuniary with the right “to be confronted dant to subject tended to the declarant far Const, against witnesses him.” U.S. liability, or to render civil or criminal right VI. This of confrontation amend. by against invalid a claim the declarant subject interpreted right as a to has been another, in the that a reasonable against the de- testimony of witnesses would not have position declarant’s cross-examination. fendant to adversarial it believing unless made the statement Amendment construing The law the Sixth tending to ex- to be true. A statement evidentiary of confrontation and the right liability the declarant to criminal pose along essentially paral- run hearsay law of exculpate to the accused is and offered generally, lines. A violation of one is lel corroborating cir- admissible unless always, a violation of although clearly indicate the trust- cumstances other. of the statement. worthiness statements, However, types some 804(b). Fed.R.Evid. in particular, statements uttered some contexts, understanding his indicating under- After usually well-defined those admissibility of Rand’s statement evidentiary law to be with- stood federal inter- against the “statements hearsay governed rule exception in a codified to the rule,” carefully exam- judged judge the trial hearsay,” those labeled “not est or statement, well as written ined Rand’s sufficiently permit reliable by law enforcement reports three written deny right a defendant the government to describing officials Rand’s statement in sentencing. ordinary and lenience The Rule 804(b)(3) provid- interest, the circumstances under which he against carefully ed it. The court then contrast, redacted inculpates the declarant and ei- those sentences of the statement and the explicitly implicitly exculpates ther or reports self-inculpato- which contained no defendant on trial. elements, ry and admitted all other sen- Court has stated: containing tences —those self-incul- some truthfinding [The] function of the Con- patory element —as statements frontation uniquely Clause is threatened Rand’s Fed.R.Evid. accomplice’s when an confession is 804(b)(3). In each case the result of this sought to be a crimi- introduced redaction is a set of inculpatory sentences nal defendant without the benefit of Rand, highly inculpatory but also noted, cross-examination. As has been McCleskey. subject such a confession is hearsay, ruling The court’s reveals a misunder dangers inaccuracy all the which char- standing of Rule In the vast acterize generally.... More majority of instances which Rule this, however, than the arrest state- 804(b)(8) upon, is relied it is defendant ments of a eodefendant have traditional- *5 upon who relies the Rule to admit a state ly been viewed special suspicion. ment, hearsay, otherwise which operates strong Due to his implicate motivation to to exculpate by inculpating him the state himself, the defendant and to exonerate See, ment’s declarant. e.g., United States a codefendant’s what statements about Price, (6th Cir.), v. 134 F.3d 340 cert. the defendant said or did are less credi- denied, 845, 525 U.S. S.Ct. than ordinary hearsay ble evidence.... (1998); L.Ed.2d 91 United States v. Pa ... person one [W]hen accuses anoth- (9th guio, Cir.1997); 114 F.3d 928 United er of a crime under circumstances (1st Innamorati, States v. 996 F.2d 456 which the gain by declarant stands to Cir.1993). circumstances, Under such another, inculpating the accusation is out-of-court statement by signif is marked presumptively suspect and must be sub- reliability: icant indicia of a reasonable jected to the scrutiny of cross-examina- guilty who was not of a crime tion. normally falsely would not inculpate him Illinois, Lee v. 476 U.S. 106 S.Ct. purpose self for the falsely of exculpating (1986) (internal 90 L.Ed.2d 514 quo- another. omitted). tation marks and citations However, where, here, it is the reasons, For these it is clear that government which seeks to a introduce ju Court Confrontation Clause statement, otherwise hearsay, which incul risprudence permit does not the introduc which, pates detail, its declarant but its tion of by declarations uttered inculpates also by the defendant spreading accomplices in custody law enforcement some, much, shifting or onto him or all of inculpate a absent further blame, the out-of-court statement en “particularized guarantees” of the declara tirely lacks such indicia of reliability. It is tion’s trustworthiness. garden variety hearsay as to the defendant

and it does not lose that character merely question The then is whether because it in reliably inculpates addition Rand’s statement incriminating both him Indeed, the declarant. alleged an cocon self and McCleskey guarantees bears spirator in the custody of law enforcement trustworthiness sufficient to pre rebut its will generally officials sumptive have a salient and unreliability. Although some de compelling interest in incriminating other tails of Rand’s confession were borne out persons, both degree to reduce the at his the testimony of Rand’s Los trial — apparent own responsibility and Angeles supplier, to obtain tape of the controlled addition, inclusion of R.Evid. In hotel telephone and and some delivery, McCleskey’s Sixth unambig- the evidence violated has Supreme Court records —the rights, for the same reasons. be admissible Amendment “[t]o held uously Clause, hearsay evi- the Confrontation the reasons we have Although, for must a defendant to convict dence used discussed, of Rand’s state introduction of its reliability by virtue indicia of possess error, ought we not reverse ment was trustworthiness, reference inherent if the error was McCleskey’s conviction Idaho v. trial.” evidence to other doubt. See beyond harmless reasonable 805, 822, 110 S.Ct. Wright, 497 U.S. 18, 24, 87 Chapman California, added). (1990) (emphasis 111 L.Ed.2d 638 (1967). To itself Thus, look to the statement we must sure, delivery of ersatz Rand’s controlled delivery of its for the circumstances and to tape pre- was taped, cocaine was and that reliability. of its inherent evidence addition, government at trial. sented advised of his declarant had been McCleskey’s testified to role as witness confession was volun- rights; his Miranda in cocaine. Neverthe- large-scale dealer he purposes; Fifth Amendment tary for evidence, less, conclude that this we cannot himself to exposing that he was was aware Rand’s detailed portions absent ex- there was no liability; and criminal inculpated heavily which so for leniency exchange press promise McCleskey, would have been sufficient factors are cooperation. While these his beyond a reason- McCleskey’s guilt prove that Rand’s statement strong indicators able doubt. voluntary presumptively and therefore himself, they offer no basis as to reliable III. circumstantial finding necessary *6 above, the the reasons described For to the as of trustworthiness guarantees REVERSED, conviction is defendant’s McCleskey. Manifest- inculpating portion further REMANDED for and his case shifting strong interest in had a ly, Rand with this inconsistent proceedings from responsibility of the at least some opinion. McCleskey. himself and onto confusion of of the evident Because DUGGAN, Judge, concurring. District and distinguished district court both the Ryan’s opin- in Although Judge I concur proper applica as to the government the write, ion, address the separately I 804(b)(3), it is well tion of Fed.R.Evid. Court, this by the dissent that statement following point: clarifying the worth Judge District ruling “the affirming above, the very reasons articulated the the in- “specifically upheld Duggan,” has while accomplice an delivered confession of a fur- without of such evidence troduction defendant, custody, inculpating in police exactly the situ- analysis in reliability ther unavailable at accomplice be though the namely, when by McCleskey, ation faced trial, classic, inadmissible is the time a statement seeks to admit prosecution the government, the hearsay, when offered interest that penal a declarant’s against concern. the constitutional regardless of defendant,” Neuman citing inculpates the brought to bear of the incentive Because (6th Cir.1997). Rivers, 125 F.3d 315 v. and accomplice an to shift upon such ruled, Neuman, this I Court such a persons, to other spread blame affirmed, properly had judge that the trial to be state “[a] cannot be said confession admitted, govern- request subject ... so far tended ment which of the ment, statements ... the out-of-court liability to ... criminal the declarant un- father then “unavailable” in the declarant’s defendant’s a reasonable that 804(b)(3). Evidence Rule of state der Federal made the would not have position However, the dissent that disagree I true.” Fed. believing it to be ment unless 646 defendant, government against

the father’s out-of-court statements even (also) Neuman inculpated the defendant. As though may the statements Neuman, Judge Boggs noted in trial interest, “[t]he penal the declarant’s I testimony ... court admitted that fa- [the with his concur conclusion that defendant’s having had confessed to oral sex with ther] conviction must be reversed. complainant, firing gun and to into Neuman, the air.” 125 F.3d at 319. Such BOGGS, Judge, dissenting. Circuit only inculpated father, statements opinion The court’s carefully sets out the making no mention whatsoever of the de- case, basic facts and framework for this fact, view, That in my fendant. distin- down to near the bottom 6. page Howev- case, guishes Neuman from this in which er, my opinion astray, it thereafter goes clearly the declarant’s inculpat- statements factually legally. both A brief review McCleskey. ed evidentiary of the relevant rule is in order. Furthermore, Judge Boggs is correct 804(b)(3) excepts Fed R. Evid. from ex- in my opinion Neuman I stated clusion as “against that the father’s statements were penal unavailable declarant’s own interest. interests, penal firmly [his] rooted hear- Supreme The Court has held that the ad- say exception,” citing Rule I did mission into evidence of an unavailable not, however, rule that an out-of-court declarant’s out-of-court statement does directly a declarant in- violate the Confrontation Clause when it culpates such as this a firmly hearsay excep- “falls within rooted case, “firmly is admissible as a rooted Roberts, 56, 66, Ohio tion.” 448 U.S. hearsay exception.” (1980). 100 S.Ct. 65 L.Ed.2d 597 Moreover, this Court’s decision in Neu- Supreme The Court has declined ad-

man was issued on 16,1996. February On whether against penal dress 10, 1999, June United States do, in general, fall within that Court rendered its decision in Lilly v. exception. See Williamson v. United Virginia, 119 S.Ct. States, U.S. (1999), in justices L.Ed.2d 117 which four (1994). circuits, expressly stated: noted, the Court on ques- divided this fact, The decisive which we make explic- *7 But, explored infra, tion. will as be this today, it is that accomplice’s confessions court has held that such statements do fall that a criminal inculpate defendant are firmly within such a exception. rooted firmly within a rooted exception to When such a statement in addition con hearsay the rule as that concept has material exculpating tains a defendant been defined in our Confrontation admission, reliability who seeks its its does jurisprudence. Clause suspect requires become and further anal 134, Id. at 119 S.Ct. at 1899. This state- ysis. The Rule requires that “corroborat ment, coupled with Justice Scalia’s concur- ing clearly circumstances indicate the ring opinion that the admission of certain trustworthiness of the statement.” Fed. out-of-court represent “para- statements a 804(b)(3). See, e.g., United States R.Evid. violation,” digmatic Confrontation Clause Cir.1993), Hilliard, (6th v. 618, 11 F.3d 619-20 lead me to believe that the Court denied, rt. 1130, 114 510 U.S. S.Ct. ce would find the admission of the out-of- (1994) (holding such court statements in this imper- case to be a improperly statement excluded when Id. at missible. 119 S.Ct. at 1903. corroborating weighed by evidence not tri agree Because I with Judge Ryan that court). al those portions of a declarant’s statement that directly inculpate a in- Conversely, defendant are the Rule requires nothing hearsay admissible when offered the additional for admission of a statement Mitchell, wrote in we 179 F.3d ma- v. it when contains penal constituting a dec- passing of “statements whose a defendant inculpates that terial (and fall- thereby against interest laration The Su- admission. its seeks prosecutor the exception to firmly a rooted within ing ad- declined to explicitly also Court preme ” rule).... that case Dicta in Williamson, See this circumstance. dress upheld would it clear that we have make many 2431. But at inculpat- such a statement admission of the these brought have circuits sister of our reliabili- without further the ing of their the umbrella case, how- holding of the ty analysis; the cousins, a requiring defendant-exculpatory ever, finding a of harmless upon was based reliability” to of “indicia further showing of error. they are sus- that presumption a overcome incul- Margaret & B. case the declarant’s 5 Jack Weinstein In the instant See pect. “mule” was in the role of Federal Evidence of himself pation Berger, Weinstein’s A. ed., this effort to shift no McLaughlin There was (Joseph M. total. § 804.06[6] cases). ed.2000) was the circum- only question (citing guilt. Bender 2d Matthew he who transportation, his and of stances however, not, joined court has This Thus, to it seems in this role. dealt with this issue. approach circuits’ those meets classically this that statement me the upheld Rather, specifically have we 804(b)(3) in that Rule requirements of the a evidence without of such introduction in the declarant’s person reasonable “a the exactly analysis reliability further the state- have made would not position namely, McCleskey, faced situation If it to true.” believing unless ment (cid:127) to admit a seeks prosecution the when (and cor- specific a inculpating anything, in penal a declarant’s statement rect) self-inculpation heightened the source inculpates defendant. that terest declarant, made it easier and of the Rivers, court our 125 F.3d Neuman in the of role additional evidence his amass Judge Dug- of District ruling upheld (further, in the additional a lie operation of a state introduction allowing the gan to de- easy might have been information trial, father, that he his son’s by a at ment corroboration, if tect, heightening thus ac gunpoint female had sodomized statement). needed, Wein- his of any were son, gun fired and quaintance 804.06[b], Evidence, § ar- Federal stein’s sepa had been tried air; the father involved dangers “far fewer gues his case testify refused to since rately, does inculpatory when trial for was on The son appeal. on crime the same the accused implicate occa on same sexual conduct criminal having par- accused declarant is which during a sion, a firearm well as use added), uses the (emphasis ticipated” yet on another assault felony and felonious theft of of the example of an admission “the admission heldWe party. declarant, used goods by certain of unavailable out-of-court receiving accused of inculpate *8 ‘firmly pursuant hearsay declarants Here, confessed Rand goods. stolen those hearsay rule does exceptions to rooted’ are and the carrying drugs, Clause, be the Confrontation not violate who a person trial of used in the to be presumed to bear the statements cause transporta- drugs for the him provided at 319 reliability.” Id. indicia of adequate the situa- tion, rather similar a relation 56, 66, 100 Roberts, 448 U.S. (citing Ohio out set Weinstein. tion (1980)), and we 65 L.Ed.2d reasons, respectfully I foregoing For court district “[t]he to rule that went on dissent. out-of- father’s] correctly [the held that admissible court were ex penal interest

the declaration rule, root ‘firmly

ception to Further, in Gilliam exception.”

ed’ Ibid.