                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




            United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Submitted October 11, 2006
                             Decided October 31, 2006

                                       Before

                  Hon. JOHN L. COFFEY, Circuit Judge

                  Hon. FRANK H. EASTERBROOK, Circuit Judge

                  Hon. DANIEL A. MANION, Circuit Judge

No. 05-3925

UNITED STATES OF AMERICA,                   Appeal from the United States District
    Plaintiff-Appellee,                     Court for the Northern District of
                                            Illinois, Eastern Division.
      v.
                                            No. 03 CR 465
RICKY PHILLIPS,
     Defendant-Appellant.                   Elaine E. Bucklo,
                                            Judge.

                                     ORDER

       A jury found Ricky Phillips guilty of possession of a firearm by a felon, 18
U.S.C. § 922(g)(1), and, as an armed career criminal, he was subject to a mandatory
minimum sentence of 15 years’ imprisonment, see 18 U.S.C. § 924(e). The district
court sentenced Phillips to 216 months’ imprisonment and five years’ supervised
release. Phillips filed a notice of appeal, but his appointed lawyer has moved to
withdraw because he cannot discern a nonfrivolous argument for appeal. See
Anders v. California, 386 U.S. 738 (1967). Phillips has not responded to counsel’s
brief though he was invited to do so, see Cir. R. 51(b). We discuss only the potential
arguments that counsel identifies in his facially adequate brief. See United States
v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).
No. 05-3925                                                                       Page 2

       Phillips, along with his girlfriend, bolted from the car in which he was a
passenger after it was pulled over. Shortly thereafter, a police officer observed him
climbing to the roof of a building with a gun stuffed into the waistband of his pants.
The officer ordered Phillips to put the gun down on the roof and come down. He
complied with the officer’s order. Phillips and his girlfriend, Kimmie Whitehead,
were arrested. From the time of the arrests, Phillips denied that he possessed the
handgun, and Whitehead’s version of events changed several times. Initially, a
police officer overheard Whitehead tell someone that before she and Phillips were
stopped, “they” were on their way to sell the gun to her uncle. Then, in her first
conversation with ATF agents, Whitehead stated that she, not Phillips, possessed
the gun. Whitehead later changed her story and told prosecutors that she had lied
earlier to protect her boyfriend, Phillips, the father of her child, but that in truth he
had possession of the weapon. She then testified before the grand jury that Phillips
was carrying the gun and attempted to hide it in a vent on the roof of the building
as they fled from police. Whitehead later changed her story once more, telling ATF
agents that she had possession of the gun at all times and that she had been
coerced by prosecutors to lie to the grand jury.

      In any event, the jury never heard any of Whitehead’s statements because
the government moved in limine to exclude them after learning that Phillips
planned to introduce the ones that exculpated him. The government argued that
the hearsay statements were not admissible under the exception for statements
against penal interest, see Fed. R. Evid. 804(b)(3), because they were
untrustworthy. Two district judges accepted the government’s position: Judge
Lefkow, who granted the government’s motion in limine, and Judge Bucklo, who
was re-assigned to the case before trial and adopted Judge Lefkow’s ruling.

       Initially counsel argues that it would be frivolous to claim that the district
court erroneously granted the motion in limine with respect to Whitehead’s
statements that she, not Phillips, had possession of the gun on the day the two were
arrested. To introduce a hearsay statement under Rule 804(b)(3), the proponent
must establish that the declarant is unavailable as a witness, that the statement
was against the declarant’s penal interest when made, and that corroborating
circumstances clearly suggest that the statement is trustworthy. See United States
v. Bonty, 383 F.3d 575, 579 (7th Cir. 2004); United States v. Shukri, 207 F.3d 412,
416 (7th Cir. 2000); United States v. Garcia, 986 F.2d 1135, 1139 (7th Cir. 1993).
We have emphasized that Rule 804(b)(3) expressly requires the exclusion of out-of-
court statements offered to exculpate the accused unless there are corroborating
circumstances that “clearly indicate” the trustworthiness of the statements. United
States v. Hall, 165 F.3d 1095, 1112 (7th Cir. 1999).

       Judge Lefkow analyzed the admissibility of Whitehead’s statements in a
detailed order and determined that Whitehead, a convicted felon, spoke against her
No. 05-3925                                                                   Page 3

penal interest when she claimed possession of the gun, and also that Whitehead
was unavailable to testify because her attorney had advised her to invoke the Fifth
Amendment. Judge Lefkow next concluded that the statements were nevertheless
inadmissible because they were untrustworthy for a number of reasons. For one,
Whitehead had given several inconsistent accounts. And the only time she testified
under oath, after hearing the penalties for perjury, she incriminated Phillips rather
than claiming possession of the gun. Judge Lefkow also reasoned that the close
relationship between Phillips and Whitehead, and Whitehead’s explicit
acknowledgment of her willingness to lie to protect Phillips, detracted from the
trustworthiness of her statements concerning her possession of the gun. Judge
Lefkow also briefly noted that evidence that the arresting officer reportedly saw
Phillips in possession of the weapon added to the untrustworthiness of Whitehead’s
statements to the contrary.

       We agree with counsel that challenging the district court’s grant of the
motion in limine would be frivolous. Whitehead’s statements are so contradictory
that we could not quarrel with the district court’s conclusion that the statements
Phillips wanted to introduce were too untrustworthy to pass muster. See United
States v. Groce, 999 F.2d 1189, 1191 (7th Cir. 1993) (upholding district court’s
exclusion of evidence for untrustworthiness where declarant “gave several
conflicting statements”). And we agree with the trial judge’s consideration of the
close relationship between Whitehead and Phillips when analyzing whether
Whitehead’s statements exculpating Phillips were credible. Shukri, 207 F.3d at
416-17; United States v. Butler, 71 F.3d 243, 253 (7th Cir. 1995). Phillips argued
that the statements that exculpated him were trustworthy because Whitehead had
inculpated herself more than once and because she “recanted her recantation” of her
claim that she, not Phillips, possessed the gun. Arguments of this nature will not
go far when attempting to establish that the district court committed error. See
Hall, 165 F.3d at 1112 (stating that district court’s determination of
trustworthiness of hearsay statements must be upheld unless clearly erroneous);
United States v. Garcia, 897 F.2d 1413, 1421 (7th Cir. 1990) (same). Whitehead
disclaimed possession of the gun on two discrete occasions, so it seems strange to
find her statement to the contrary trustworthy because it too was uttered twice.
And Phillips would be hard-pressed to persuade us that Whitehead’s claim that she
possessed the gun is more trustworthy simply because it is the last one she made.

       However, counsel suggests that the district court improperly considered the
arresting officer’s testimony that Phillips possessed the gun as a factor weighing
against the trustworthiness of Whitehead’s contrary statements. Counsel notes
that it is an “open question” whether a judge’s consideration of evidence that does
not directly corroborate or detract from the trustworthiness of a statement infringes
on the role of the jury. We note that the openness of the question is debatable after
the Supreme Court’s recent suggestion that the trustworthiness of exculpatory
No. 05-3925                                                                   Page 4

evidence is not contingent on the relative strength of the prosecution’s case. Holmes
v. South Carolina, 126 S.Ct. 1727, 1734 (2006) (“Just because the prosecution’s
evidence, if credited, would provide strong support for a guilty verdict, it does not
follow that evidence of third-party guilt has only a weak logical connection to the
central issues in the case.”). But nothing in Holmes, or for that matter, Chambers
v. Mississippi, 410 U.S. 284 (1973), on which Phillips relied in the district court,
requires the admission of untrustworthy hearsay in the interest of justice. See
Holmes, 126 S.Ct. at 1732; Chambers, 410 U.S. 284 at 302. Like counsel, we
conclude that Judge Lefkow’s brief mention of the arresting officer’s account as a
factor weighing against the statements’ trustworthiness falls short of supplying a
basis for appeal, given the other reasons given for finding the statements
untrustworthy.

      We agree with counsel that it would be frivolous to challenge the exclusion of
Whitehead’s statements. And we also agree with counsel that the remaining
arguments—concerning the sufficiency of the evidence, the jury instructions, and
the sentence—are also frivolous, and require no further discussion.

      We GRANT counsel’s motion to withdraw and DISMISS the appeal.
