Tenth Circuit Finds Alleged Co-Conspirator's Suicide Note Taking Sole Responsibility Inadmissible in Embezzlement Trial

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, can an alleged co-conspirator's admission of (sole) fault for criminal wrongdoing be admissible under Rule 804(b)(3)? That was the question addressed by the Tenth Circuit in its recent opinion in United States v. Hammers, 2019 WL 5876843 (10th Cir. 2019).

In Hammers, 

Buck Leon Hammers used to be the Superintendent of the Grant-Goodland Public School District in Grant, Oklahoma. That is, until he was charged with conspiring with his secretary to commit bank fraud and embezzle federal program funds. Prior to trial, the Government moved to exclude a suicide note written by Defendant’s secretary and co-conspirator, Pamela Keeling. In that note, Ms. Keeling took full responsibility for the fraud and exculpated Defendant of any wrongdoing.

Specifically, the note stated

“I Pam Keeling take full responsibility for everything at Grant School. No vendor nor Mr. Hammers had anything to do with what happened. I am truly sorry and pray for forgiveness.”

In agreeing with the district court that the note inadmissible under Rule 804(b)(3),* the Tenth Circuit held that

Ms. Keeling appears to have written the note in anticipation of her imminent death. While Defendant stresses the rule requires the statement be against the declarant’s penal interest when it is made, the record indicates Ms. Keeling had no intention of sticking around to face criminal prosecution. For example, the other notes found with the inculpatory note were good-byes to her family. Additionally, the letters were found in Ms. Keeling’s motorhome—the same place she committed suicide. Therefore, at the time she wrote the note, one cannot seriously argue Ms. Keeling subjectively believed the statement would expose her to criminal liability.

The Tenth Circuit also held that the the suicide note was not admissible under Federal Rule of Evidence 807, the residual hearsay exception, arguing as follows:

In this case, the district court decided to exclude the suicide note under the residual exception because the note did not offer guarantees of trustworthiness. We do not find the district court abused its discretion in so holding. As already discussed, Ms. Keeling and Defendant had a close relationship, which potentially motivated Ms. Keeling to exculpate Defendant before taking her own life. Moreover, Ms. Keeling’s prior statements and actions with respect to the charged fraud cast doubt on her honesty and trustworthiness.

Nevertheless, Defendant argues a note, voluntarily written, in close proximity to one’s death has an “indicia of reliability” because “the sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of oath.”...While Defendant’s reasoning may be persuasive, it is not dispositive. Although reasonable minds may differ, the district court’s factual findings were supported by the record and its legal conclusions were not contrary to the established law. Therefore, we find the district court did not abuse its discretion in declining to admit the suicide note under the residual exception.

This is pretty interesting. As I've noted, some courts have allowed for the admission of suicide notes under the dying declarations hearsay exception, which only applies in criminal homicide (and civil) cases. Hammers tried to argue that a statement that meets that exception should be admissible in a non-homicide criminal trial, but, as you can see, the Tenth Circuit didn't find Keeling's note to be sufficiently reliable to be admissible.

-CM