Case Information
*1 Before P OSNER T INDER , H AMILTON , Circuit Judges . T INDER Circuit Judge
. Michael convicted possessing firearm felon. only contested issue trial whether possessed gun; interstate commerce Henderson’s status fel undisputed. U.S.C. 922(g)(1). This appeal also presents single issue: abused discretion excluding an *2 unavailable regarding the gun Henderson charged with possessing?
On August at around p.m., Henderson driving a van accompanied by a passenger, Dexter Rog ers. The van owned Elberto Rosado, room mate. Chicago police officers Jason Bala and William O’Brien stopped the van failing signal turn. Both officers tes tified that, they approached van, they observed the driver furtively leaning forward and moving his right hand along his waistband toward small his back. offic ers ordered occupants van show their hands, and occupants complied. Henderson did gun hands. officers ordered Henderson and out van handcuffed them.
After van, Officer Bala ob served handle handgun extending up from between driver’s seat seatback. (The rest gun tucked between seat back.) Bala alerted Officer O’Brien gun. O’Brien testified he could see about two inches butt gun protruding seat. (At oral argument, counsel confirmed front seats van were bucket seats.) Fingerprints were gun, but analyst testified could determined whose prints they were. During pat down Rogers, officers straws containing suspected cocaine. Hender son were arrested.
They interviewed police station. Two police officers testified asked why gun, stated he unfamiliar neighborhood gangs neighborhood protection. disputes such *3 and he grew up in area and two children who live with their mother in area. The interview not recorded; no written taken from Henderson. Rogers not asked about gun found van but he did pull clear, knotted plastic bag his genital area. The bag contained smaller zip lock bags containing white powdery substance suspected crack cocaine.
Rosado interviewed government twice January 2011, and then he testified before grand jury gun his, he did not put it van, and he had idea where it had come from. On March one week before trial, Rosado stated first time gov ernment he had visited Rogers jail few weeks after Rogers’ arrest asked him what had happened. Accord ing Rosado, Rogers said just kept it, brought into van, going take it residence Rosado shared. Rosado remarked what said did make any sense, but didn’t question about further. Rosado met with defense before March interview government never mentioned Rogers’ supposed about gun.
The government moved exclude Rosado’s anticipated testimony about alleged inadmissible hearsay. argued admissi ble under Rule 804(b)(3) against penal inter est. (If called testify, Rogers, convicted felon, plead Fifth Amendment regarding possession gun.) granted motion. first “the Statement incredible face. *4 ‐ presented any reasonable explanation to show is plausible loaded street.” court also “even if Statement made, totality circumstances indicates Statement help Henderson out.” Furthermore, court determined “failed point sufficient suggest Statement trustworthy.” Therefore, concluded satisfied Federal Rule 804(b)(3)’s corroboration requirement excluded statement. At conclusion trial, jury returned guilty verdict. contends exclusion Rosado’s erro neous, thereby justifying new trial.
We review district court’s evidentiary rulings abuse discretion. United States v. Jones , F.3d 847, (7th Cir. 2010). “The court’s determination trustworthiness out ‐ ‐ statements ‘entitled considerable deference’ upheld unless ‘clearly erroneous.’” (quoting United States v. Jackson F.3d (7th Cir. 2008)). Although generally ex cluded evidence, Rule 804(b)(3) authorizes its admis sion where (1) unavailable witness, (2) against declarant’s interest made, (3) if offered exculpate de fendant, “corroborating circumstances … clearly indicate trustworthiness.” Fed. R. Evid. 804(b)(3); see also Hall 1999) (“Rule 804(b)(3) expressly requires exclusion ‐ statements exculpate accused unless are corroborat ing ‘clearly indicate’ trustworthiness statement”). rule’s re flects “a long standing concern … criminal defendant *5 might get pal confess the crime the defendant ac cused of, pal figuring that probability of actually being prosecuted either for crime or for perjury slight.” United States Silverstein (7th 1984). contends erred in ex cluding hearsay statement because clearly suggest statement trust worthy. government responds properly offered nothing corroborate re liability of incredi ble on its face.
Henderson’s brief raises question about Rule 804(b)(3)’s corroboration requirement. Does rule require corrobora tion of content of or fact made, or both? advisory committee’s note instructs “[t]he of corroboration construed in such manner effectuate its purpose circumventing fabrication.” Fed. R. Evid. ad visory committee’s note (1972). This may seem suggest required both. See Clifford S. Fishman & Anne T. McKenna, Jones Evidence ed. 2012). Either fact itself or its content *6 However, “[a]s a matter of standard hearsay analysis, the credibility of witness regarding the fact the statement made is not appropriate inquiry.” K. Broun, McCormick on (6th ed. 2006) (footnotes omitted). “Indeed, Advisory Committee’s Note amendment stated ‘the credibility of witness who relates is not proper factor consider assessing corroborating circumstances.’” Id. The note explains “[t]o base admission exclusion hearsay witness’s credibility usurp jury’s role determining credibility testifying witnesses.” Fed. R. Evid. advisory committee’s note (2010). The question implicates testifying witness’s credibility; making credibility determinations is role reserved jury.
We stated “Rule 804(b)(3) does require statements themselves be clearly corroborated.” Garcia 1993). rule requires only clearly indi cate trustworthiness statement. Id. “[T]he corrobo ration … preliminary question admissibility evidence.” Id. judge need be “completely convinced” truth admissible.
It observed that:
In law evidence, tes timony just means some besides testimony itself indicate trustworthy—not neces sarily true, but (when statement) *7 ‐ is sufficiently worthy belief value evidence despite impossibility subjecting declarant fires cross ‐ examination. For corroboration “clearly” indicate trustworthiness (though, again, not necessarily truth) court statement requires more probing inquiry, example into motive lie. United States v. Amerson , F.3d (7th Cir. 1999) (Posner, J., dissenting) (citations omitted). Corroboration may supplied by independent supporting statement itself, or by which state ‐ ment suggesting statement trustwor thy, or both. See, e.g. Butler , (7th 1995) (considering whether “direct evi dence which corroborates [the declarant’s] exculpatory comments” then considering “the circumstanc es surrounding [the declarant’s] statement … buttress[ed] trustworthiness”); Christopher B. Mueller & Laird C. Kirk patrick, Federal Evidence § 8:131 (3d ed. 2007) (“Certainly [corroboration] satisfied independent evi dence directly circumstantially tends prove points which offered.”). Thus, although required, content may indicate trustworthy. Michael H. Graham, Handbook Federal ed. 2012) (collecting cases). satisfied Rule 804(b)(3)’s corrobora tion requirement. First, found, loaded somewhere implau sible. A can consider itself determin *8 ing is sufficiently worthy belief. Handbook of Federal (“The information within state ‐ ment itself may also be considered as element corrobo ‐ ration. Is so contradictory to be credita ‐ ble?”) (quotation marks omitted). “[S]pecious assertions … lack excluded. On hand, if tied to time place crime has substantial plausibility, corrobora ‐ tion met.” (quotation marks omit ‐ ted). Rogers van when gun discovered, which ties him time place crime. Nonethe ‐ less, claim found loaded gun somewhere lacks substantial plausibility. implausibility Rogers’ buttressed evidence where officers found gun—wedged driver’s (Henderson’s) seat. It make little sense Rogers, passenger, place gun there, opposed another, more accessible loca tion van, if he intended take home. Moreover, Rogers’ utterly lacking factual detail: He did state where gun he it; nor did identify type found. This lack de tail suggests fabricating. See, e.g. Long Gang Lin Holder 2010) (“A lack de tail ‘major clue’ someone lying.”); Jean R. Stern light & Jennifer Robbennolt, “Good Lawyers Should Be Good Psychologists: Insights Interviewing Counsel ing Client s ,” Ohio St. J. Disp. Resol. (2008) (“Liars tend offer fewer details [than truth tell ers]”).
In addition, independent corrobo rate content statement. No fingerprint evi dence show handled gun. *9 And Henderson presented no testimony any witness who with Rogers when allegedly gun. Nor there any testimony that anyone seen Rogers with gun. There no evidence that Rogers repeated about finding anyone other than Ro ‐ sado. Such evidence could buttress statement’s reliabil ‐ ity. We recognize that Henderson required provide corroborating evidence information Rogers’ state ‐ ment; however, lack such a circumstance district could consider determining whether sufficiently trustworthy be admissible.
Henderson argues application factors identi fied Jackson consideration deter mining whether circumstances exist suggests about admissible. Even if a few factors lend some Rog ers’ statement—Rogers’ voluntary, calcu lated curry favor with authorities; there no evi dence Rogers gave conflicting statements, see at 589–90, determined another one factors cut way: namely, relationship between (Rogers) exculpated party (Hender son). Henderson challenges court’s determination totality suggested Rogers “help Henderson out.” He argues time statement—weeks after Rogers were ar rested—Rogers idea would charged possessing a firearm a felon. Yet acknowledges friends; could have known convicted felon. And Rogers, also convicted felon, known fel on’s possession firearm crime. Thus, reason *10 to believe that Rogers might think Henderson charged possessing the firearm wedged between the seat back the seat in which Henderson was sitting was by law enforcement.
This conclusion buttressed by the officers’ testimony that they observed the driver’s furtive movements leaning forward moving his right hand along his waistband ward the small his back. This raises the infer ence that was attempting conceal gun from officers. Common sense suggests that he attempting conceal gun because he had something hide. Be cause right in passenger seat, he too aware Henderson’s movements at tempted concealment suggested motive hide law enforcement. Therefore, we find no clear error court’s determination totality suggest help out. Hatfield 2010), on
which relies, does support admissibility this case. In Hatfield defendants attempted introduce hearsay statements man who claimed three people had committed one pharmacy bur glaries which defendants charged. There suggestion declarant knew any defendants. declarant’s corroborated by fact called while burglary progress initial police, said someone broke into pharmacy shattering glass front door; this present at burglary. 953. We concluded *11 11 sufficiently trustworthy and have admit ‐ ted.
In contrast, are friends and Hen ‐ derson has next to nothing to corroborate Rogers’ that somewhere, brought it into van, intended to take home. Although traveling in van with Henderson, fact merely con sistent with rather than clearly corroborative his state ment. Butler , F.3d at (concluding fact de clarant room where guns did not cor roborate exculpatory parts declarant’s defendant not room police planted guns); Silverstein F.2d at (concluding mere opportunity ability commit murder which declar ant confessed not clearly corroborative confession “but merely consistent it” where did not con tain facts only murderer could known where linking crime). takes certain language Garcia 1990), context. Con trary assertion, not enough him show “ some corroborative evidence,” id. at Rogers’ statement; required show “that corroborating circumstances clearly indicate trustworthiness [the statement,” id. (emphasis added). He not satisfied this requirement.
Therefore, district did commit clear error determining failed point clearly indicate state ment trustworthy. Accordingly, did abuse discretion excluding statement. court’s judgment A FFIRMED . susceptible fabrication. Advisory Committee’s Notes Proposed Rules, Rules Courts Magistrates F.R.D. (1972) (explaining “one senses decisions distrust confessions by third persons exculpate accused arising suspicions fabrication either fact making confession contents, enhanced either stance required unavailability declarant”).