Second Circuit Scrutinizes ‘Statement Against Interest’ Hearsay Exception for Codefendant’s Confession
In United States v. Ojudun, the Second Circuit (Katzmann, Kearse, Meyer by designation) vacated the revocation of Oluwole Ojudun’s supervised release, finding that the District Court improperly admitted the confession of Ojudun’s codefendant under the statement against interest hearsay exception.
As of January 12, 2017, Ojudun was on supervised release, having previously been convicted of bank fraud for cashing fake checks. On that day, he was traveling in the passenger seat of a black BMW driven by Anthony Gray. In the back seat of the car was Jerry Cesaro. Gray drove the car into Summit, New Jersey and double parked about 100 feet away from a Chase Bank branch. This caught the attention of Summit Detective Christopher Medina. After observing a “disheveled” Cesaro “meander” into the bank and then return to the car, Medina began following the vehicle.
Eventually, Medina pulled the car over. When Gray gave evasive answers during questioning, Medina instructed him to get out of the car. A struggle ensued, and Medina placed Gray under arrest. Upon searching Gray, Medina discovered, among other things, a driver’s license in the name of Frank Langendorf but bearing Cesaro’s picture, as well as a credit card in Langendorf’s name. At that point, Gray consented to a search of the vehicle, and officers found two checks payable to Langendorf on the passenger seat, where Ojudun had been sitting. Officers returned to the Chase Bank branch and discovered that Cesaro had cashed a check made out to Langendorf for $2,845. Based on that discovery, officers arrested Ojudun and Cesaro. Officers found $2,845 in cash on Ojudun’s person.
Back at police headquarters, Medina interrogated Gray. Gray eventually admitted that he had agreed to drive Cesaro and Ojudun to the bank in exchange for $100, and that Cesaro and Ojudun had planned to cash a check. Gray also said it was Ojudun who had handed the check to Cesaro. Gray downplayed his own involvement in the scheme, stating that he principally drove to Summit because he wanted to shop at a mall there, and that he had no idea which bank they would visit or how the check had been obtained.
Based on his involvement in this scheme, the Government sought to revoke Ojudun’s supervised release. Ojudun contested the violation of supervised release (“VOSR”) specifications and the district court conducted an evidentiary hearing. During the hearing, the District Court admitted—over Ojudun’s hearsay objection—a video recording of Gray’s confession and permitted Medina to testify about Gray’s statement. The court reasoned that Gray’s confession constitutes a ‘statement against interest’ under Federal Rule of Evidence 804(b)(3), and that Gray was unavailable to testify, having invoked his Fifth Amendment right against self-incrimination. The District Court found that Ojudun had violated the conditions of supervised release by engaging in bank fraud and sentenced him to 30 months’ imprisonment.
The Court’s Decision
On appeal, Ojudun raised two arguments. First, he contended that all evidence obtained from the vehicle should have been suppressed because it was obtained in violation of the Fourth Amendment. The Court briefly rejected this argument, holding that the stop was appropriate because Medina had reasonable suspicion of criminal activity, and that Gray had thereafter consented to the search of the vehicle.
Second, Ojudun argued that the District Court should not have admitted evidence of Gray’s confession because it constitutes hearsay. The Court agreed. It began by noting that when determining if a statement comes in as a ‘statement against interest,’ courts must scrutinize each particular statement rather than treat an entire confessional as a single statement. See Williamson v. United States, 512 U.S. 594, 599 (1994). This is because the rationale behind the exception is that people—even those who are dishonest—do not typically make incriminating statements unless they believe them to be true. But when incriminating statements are combined with those shifting blame on others, the exception’s rationale only applies to those parts of the statement that are inculpatory.
In light of these principles, the Court found that Gray’s confessional should not have been admitted in its entirety. While certain parts of Gray’s statement tended to implicate himself (for example, that he knew his passengers planned to cash a check and that he had been paid $100 to drive them to a bank), other aspects did not. Gray’s statement that Ojudun had handed a check to Cesaro, for example, did not incriminate Gray, but rather shifted blame to Ojudun. The Court also noted that the exception only applies where there are “corroborating circumstances” supporting the statement’s trustworthiness. But on these facts, Gray’s statements tended to deflect responsibility from himself to Cesaro and Ojudun, raising questions about Gray’s trustworthiness. The error was not harmless: the District Court relied on portions of the statement that were not against penal interest.
Because the District Court erred in admitting aspects of Gray’s statement, the Court vacated the revocation of Ojudun’s supervised release and remanded to determine whether, in light of the admissible evidence, the VOSR charges have been established by a preponderance of the evidence (the standard that governs at VOSR revocation hearings). The court also observed that the otherwise inadmissible hearsay may be offered in a VOSR hearing under certain circumstances. On remand, the District Court is to balance the defendant’s interest in confrontation against the government’s reasons for not producing the witness and the reliability of the proffered hearsay.
In this case, the Circuit recognizes that the statement against interest exception must be carefully applied to avoid the admission of statements of highly questionable credibility. Codefendants often have an incentive to implicate each other. When one defendant confesses and implicates another, there is a strong likelihood that the declarant has mixed some truthful statements with some false statements in an effort to minimize his own culpability and shift blame to his codefendant. In that situation, courts must take care to only admit inculpatory statements under Rule 804(b)(3). The Court’s decision here underscores that importance: it found the hearsay error serious enough to warrant vacatur, even in view of other evidence of Ojudun’s guilt. Although Rule 804(b)(3) speaks of a “statement” and therefore could be literally read to support the District Court’s decision, both precedent (Williamson) and logic support the Court’s ruling in this case. The District Court will have to give this case another look on remand.
-By George B. Fleming and Harry Sandick
 Federal Rule of Evidence 804(b)(3) exempts from the hearsay rule “[a] statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.” The rule applies only if the declarant is unavailable to testify.