EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, April 8, 2011

I Was Set Up Like A M&*%!$ F*%$!&: 7th Circuit Finds Entrapment Statement Not A Statement Against Interest

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

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.

So, is a statement by an inmate to his girlfriend that he was entrapped by ATF agents a statement against the inmate's interest as envisioned by Rule 804(b)(3)? According to the recent opinion of the Seventh Circuit in United States v. Lewis, 2011 WL 1261146 (7th Cir. 2011), a district court did not abuse its discretion by answering this question in the negative. I might disagree.

In Lewis, Lavoyce Billingsley was convicted of conspiracy to possess cocaine with intent to distribute, carrying and possessing a firearm during and in relation to a drug trafficking offense, and being a felon in possession of a firearm. At his trial, Billingsley sought, under Rule 804(b)(3), to introduce a recorded jailhouse conversation between his alleged co-conspirator, Scott Lewis, and his girlfriend, Rachel Roberts. During this conversation, Lewis explained to Roberts that he wasn't guilty because he'd been entrapped by ATF agents, and that Billingsley was just "giving [him] a ride, basically," and had "no idea what was going on."

The district court deemed this statement inadmissible under Rule 804(b)(3), finding that the statement lacked corroborating circumstances clearly indicating the trustworthiness of the statement. On Billinglsey's ensuing appeal, the government also argued "that, technically, statements about Billingsley not knowing the plan are not inherently against Lewis' penal interest, especially when taken in the larger context of a conversation about entrapment." According to the Seventh Circuit, "although we might have ruled differently, the district judge did not abuse her discretion by denying Billingsley's request to receive in evidence Lewis' statement to his girlfriend,  Ms. Roberts."

Now, the Seventh Circuit did not explain the exact basis for its ruling. Was the court merely finding that the district court did not abuse its discretion in finding that Lewis' statement lacked sufficient corroborating circumstances? If so, I have no problem with the court's ruling. But obviously, the Seventh Circuit thought that the case before it was a close call because it said that it might have ruled differently. And obviously, the court cited to the government's argument about Lewis' statement not being against his penal interest. And, if it relied upon this argument in any way in finding that the district court did not abuse its discretion, I think that the Seventh Circuit made a mistake.

A declarant's claim that he was entrapped is an admission that he committed a criminal act. Now, of course, by making such a statement, the declarant is claiming that he cannot be punished for that act because he was entrapped, but entrapment defenses are very rarely successful. See, e.g., Elizabeth E. Joh, Breaking the Law to Enforce It:  Undercover Police Participation in Crime, 62 Stan. L. Rev. 155, 173 (2009) ("[S]uccessful entrapment defenses are relatively rare..." Therefore, the way I see it, a declarant's statement that he was entrapped has a great tendency to expose the declarant to criminal liability.



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