UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4828

RAYMOND STEWART,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-96-244)

Submitted: July 24, 1997

Decided: August 4, 1997

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas W. Farquhar, Alexandria, Virginia, for Appellant. Lynne A.
Battaglia, United States Attorney, Hollis Raphael Weisman, Assistant
United States Attorney, Hyattsville, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Raymond Stewart appeals his conviction for possession with intent
to distribute crack cocaine. See 21 U.S.C.§ 841(a)(1) (1994). In this
appeal, Stewart claims that the district court erred by refusing to
admit a statement made by a co-conspirator which arguably exoner-
ated Stewart. Stewart attempted to introduce the hearsay statement
under the exception embodied in Fed. R. Evid. 804(b)(3). The district
court found that the evidence was not sufficiently corroborated and
declined to allow testimony regarding the co-conspirator's denial of
Stewart's involvement.

During the course of a traffic stop, Stewart was arrested after a dog
alerted to the presence of narcotics in his car. A search revealed more
than fifteen grams of crack cocaine hidden in the gearshift console.
The driver of Stewart's car, Sean Mason, told the arresting officer that
the crack cocaine found in the car belonged to him. Mason further
stated that Stewart and a woman traveling in the car"didn't have any-
thing to do with it." Mason later committed his oral statement to two
short sentences on a suspect statement form. However, Stewart was
unable to provide evidence that Mason ever repeated or elaborated on
the statement subsequently and Mason informed Stewart's attorney
that if called in Stewart's defense, he would assert his Fifth Amend-
ment privilege against self-incrimination.

At trial, Stewart attempted to introduce Mason's statement through
the testimony of the arresting officer. The district court sustained the
Government's objection to the hearsay evidence after a bench confer-
ence. During the conference, the court considered the standard enun-
ciated by this court in United States v. Bumpass , 60 F.3d 1099, 1102
(4th Cir. 1995), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3550 (U.S.
Feb. 20, 1996) (No. 95-1076), and concluded that the statement was
not sufficiently corroborated to be admissible. Stewart makes his lone
assignment of error to this ruling.

Rule 804(b)(3) allows admission of hearsay of an unavailable
declarant when the statement "at the time of its making . . . so far
tended to subject the declarant to civil or criminal liability . . . that

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a reasonable person in declarant's position would not have made the
statement unless believing it to be true." Fed. R. Evid. 804(b)(3).
Where, as here, the statement likely exposes Mason, as declarant, to
criminal liability and is offered to exculpate Stewart, as accused, it "is
not admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement." Id. Thus, this hearsay statement
may be admitted under the exception if (1) the declarant is unavail-
able, (2) the statement is genuinely adverse to the declarant's penal
interest, and (3) sufficient corroborating circumstances exist. See id.
The party offering the statement bears the "formidable burden" of
meeting the requirements of Rule 804(b)(3), and the court's decision
on the statement's admissibility is reviewed for abuse of discretion.
See United States v. Lowe, 65 F.3d 1137, 1146 (4th Cir. 1995), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3231 (U.S. Oct. 7, 1996) (No. 95-
1659); United States v. MacDonald, 688 F.2d 224, 233 (4th Cir.
1982).

In this case, the satisfaction of the first two requirements is not dis-
puted. Mason, the declarant, was unavailable, having asserted his con-
stitutional privilege against self-incrimination. See Fed. R. Evid.
804(a)(1); United States v. Brainard, 690 F.2d 1117, 1124 (4th Cir.
1982). Mason's statement was also adverse to his penal interest
because he admitted involvement in a criminal act to the police. See
MacDonald, 688 F.2d at 231-33. It is in the consideration of the third
requirement--the existence of corroborating circumstances--where
Stewart claims the district court abused its discretion. An abuse of the
district court's discretion occurs when the court fails or refuses to
exercise its discretion or when the court's exercise of discretion is
flawed by an erroneous legal or factual premise. See James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

This court has previously identified several factors which are rele-
vant to determining whether sufficient corroboration exists to justify
admitting a statement under the rule, including (1) whether the declar-
ant had at the time of making the statement pled guilty or was still
exposed to prosecution for making the statement, (2) the declarant's
motive in making the statement and whether there was a reason for
the declarant to lie, (3) whether the declarant repeated the statement
and did so consistently, (4) the party or parties to whom the statement
was made, (5) the relationship of the declarant with the accused, and

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(6) the nature and strength of independent evidence relevant to the
conduct in question. Bumpass, 60 F.3d at 1102. The district court con-
sidered each of these factors before making a ruling on the evidence.

Consequently, the district court employed the correct legal stan-
dard, and Stewart identifies no erroneous factual information that the
court considered. The court appropriately relied on our decision in
Bumpass to conclude that Stewart failed to bear his formidable burden
of showing sufficient corroborating circumstances. In doing so, the
court noted its concern that Mason had repeated the exculpating state-
ment only once and expressed significant reservations regarding the
"nature and strength" of a statement the court described as "cryptic"
and "ambiguous." Because the district court exercised its discretion
while guided by the proper legal standard and considering the correct
factual premises, we find that there was no abuse of discretion in
declining to admit the statement.

Accordingly, we affirm Stewart's conviction. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the Court and argument would not
aid the decisional process.

AFFIRMED

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