In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3352

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN CASTELAN,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 CR 888--James B. Moran, Judge.


Argued June 14, 2000--Decided July 27, 2000



       Before CUDAHY, FLAUM, and MANION, Circuit Judges.

      FLAUM, Circuit Judge. In February 1998, a grand
jury charged defendant Juan Castelan and three
codefendants with various drug crimes. During
Castelan’s trial, the district court, relying on
Federal Rule of Evidence 804(b)(3), allowed the
government to introduce over objection the post-
arrest statements of codefendant Ruben Olivares,
who refused to testify as a government witness
even after being immunized. A jury found Castelan
guilty of one count of conspiracy to possess with
intent to distribute cocaine, 21 U.S.C. sec.sec.
846, 841(a)(1), and two counts of possession with
intent to distribute cocaine, 21 U.S.C. sec.
841(a)(1), and the district court sentenced him
to concurrent 120-month terms of imprisonment.
Castelan now appeals, arguing that the admission
of Olivares’s post-arrest statements violated his
rights under the Confrontation Clause of the
Sixth Amendment. For the reasons stated herein,
we affirm.

I.   BACKGROUND

      DEA Special Agent George Karountzos, posing as
"Frank," initiated two undercover narcotics
purchases that culminated in the arrest of
Castelan, Olivares, and two other codefendants,
Juan Garcia-Sandoval and Carlos Nina-Hernandez.
According to the government’s theory of the case,
Karountzos negotiated his purchases of cocaine
through Olivares; Olivares in turn contacted
Castelan, who procured the cocaine from Garcia-
Sandoval. Nina-Hernandez was not directly
involved with the distribution of the cocaine to
Agent Karountzos, but agreed to provide security
for one drug transaction.

      The first cocaine buy was initiated when
"Frank" called Olivares on December 17, 1997, and
asked for one kilogram of cocaine, which the two
men referred to as a "truck." Olivares told
"Frank" to call back the next morning. When Agent
Karountzos called Olivares the next morning,
Olivares informed "Frank" that he was meeting
with his suppliers at 12:30 PM. At 12:52 PM,
Olivares phoned "Frank" and stated that he had
spoken to the "guy" who was going to provide the
"truck." Olivares related that "this guy is
calling his, his employee," who would "bring the
truck to us." At 1:05 PM, Olivares phoned "Frank"
and told him that he would turn over the "truck"
at an Amoco gas station located on the corner of
Cicero and Foster at 2:15 PM./1

      At 2:10 PM, Agent Karountzos met Olivares at
the Amoco gas station. Olivares informed "Frank"
that he did not have the cocaine with him.
Olivares asked "Frank" to follow him to another
location where the cocaine was located. Agent
Karountzos refused to leave the gas station,
citing concerns for his personal security. At
around 2:40 PM, Olivares left the gas station to
pick up the cocaine. Approximately ten minutes
later, Olivares returned to the gas station,
entered "Frank’s" vehicle, and handed him a bag
containing one kilogram of cocaine. In return,
"Frank" paid $20,000 to Olivares./2

      On December 27, 1997, Agent Karountzos phoned
Olivares to arrange the purchase of six kilograms
of cocaine. At 5:13 PM on December 29, 1997,
Agent Karountzos telephoned Olivares to finalize
the deal. Olivares stated that his suppliers had
just called him and said they could deliver the
cocaine on the following morning./3

      Nina-Hernandez, who had agreed to provide
security for the cocaine sale, testified that
Olivares picked him up between 9:00 AM and 9:30
AM on December 30, 1997. Olivares then drove
Nina-Hernandez to an apartment building located
at 6610 North Sheridan and told him to wait in
the lobby while he picked up Castelan. After
Olivares returned with Castelan, he told Nina-
Hernandez that he was to take Castelan to a gas
station located at Bryn Mawr and Sheridan, where
Castelan would meet up with the driver of another
car. At the gas station, Nina-Hernandez was to
give Castelan a garage door opener that would
unlock the gate to the parking garage behind 6001
North Sheridan. Olivares informed Nina-Hernandez
that, after he gave Castelan the garage door
opener, he and Castelan were to drive separately
to 6001 North Sheridan and park in designated
parking spaces. Olivares instructed Nina-
Hernandez to confirm that the area was clear
after he and Castelan parked in the garage, and
then signal Castelan that it was safe to deliver
the cocaine.

      After he and Castelan received their
instructions from Olivares, Nina-Hernandez drove
Castelan to the designated gas station. At the
gas station, Castelan got into a Mercury Cougar
driven by Garcia-Sandoval. After Nina-Hernandez
left the gas station, he realized he had not
given Castelan the garage door opener, so he
pulled over and waited for the Cougar to pass. He
then followed the Cougar to the parking garage at
6001 North Sheridan and activated the garage
door. Rather than following the Cougar into the
garage, Nina-Hernandez "got scared" and parked on
a nearby side street. He was arrested a short
time later by DEA agents. DEA agents located the
Cougar in the parking garage, still occupied by
Castelan and Garcia-Sandoval. After arresting
Castelan and Garcia-Sandoval, DEA agents searched
the Cougar and found six kilograms of cocaine
located in two hidden compartments. At
approximately the same time that Castelan and
Garcia-Sandoval were arrested in the parking
garage, DEA agents arrested Olivares inside the
lobby of 6001 North Sheridan where he was waiting
with "Frank" for the cocaine to be delivered./4

      After he was arrested, Olivares was interviewed
and implicated the others. During the interview,
Olivares specifically asked what the DEA could do
for him. On February 12, 1998, a grand jury
charged Castelan, Olivares, Nina-Hernandez, and
Garcia-Sandoval with conspiracy to distribute
cocaine and possession with intent to distribute
cocaine. Olivares and Nina-Hernandez negotiated
plea agreements and agreed to testify against
Castelan./5 But after entering his guilty plea,
Olivares refused to testify as required, even
after being granted immunity by the district
court. On the theory that Olivares was no longer
"available" to testify and his statements were
against penal interest, the government moved
under Rule 804(b)(3) to introduce statements he
made during two post-arrest interviews with DEA
agents. The district court found Olivares’s
statements to be reliable and granted the motion
over Castelan’s objection. The government then
introduced Olivares’s statements through the
testimony of Owen Putman, one of the DEA agents
who conducted the post-arrest interviews. Agent
Putman testified that Olivares admitted his role
in setting up the two cocaine deals on December
17 and December 30, 1997, and that he identified
Castelan as the source of the cocaine. According
to Putman, Olivares stated that after the first
transaction on December 17, he met Castelan at
the El Ranchito restaurant, where they counted
the money for the kilogram of cocaine. Putman
also testified about Olivares’s statements
describing Castelan’s and Nina-Hernandez’s
respective roles in the December 30 deal and his
telephone conversations with Castelan to finalize
delivery of the six kilograms of cocaine.

      After the jury found him guilty on all counts,
Castelan moved for a new trial under Federal
Rules of Criminal Procedure 29, 32, and 34,
raising numerous grounds for relief, among them
the district court’s decision to admit Olivares’s
post-arrest statements. The district court denied
his motion, but Castelan appeals only the
admission of Olivares’s post-arrest statements,
which he contends violated the Confrontation
Clause of the Sixth Amendment.

II.   DISCUSSION

      We review de novo an evidentiary ruling that
affects a defendant’s Sixth Amendment right to
confront witnesses, see United States v. Scott,
145 F.3d 878, 888 (7th Cir. 1998), and
"’independently review whether the government’s
proffered guarantees of trustworthiness satisfy
the demands of the [Confrontation] Clause,’" see
United States v. Robbins, 197 F.3d 829, 837-38
(7th Cir. 1999) (quoting Lilly v. Virginia, 527
U.S. 116, 137 (1999)). A violation of the
Confrontation Clause is subject to harmless error
analysis. See Scott, 145 F.3d at 888.

      The district court admitted Olivares’s
statements under Rule 804(b)(3),/6 which allows
for the admission of statements against penal
interest if the declarant is unavailable.
Determining whether codefendant testimony
admitted under Rule 804(b)(3) violates the
Confrontation Clause normally requires a
threshold determination of whether the evidence
was properly admitted under Rule 804(b)(3) in the
first instance. The Supreme Court has held that
Rule 804(b)(3) "does not allow admission of non-
self-inculpatory statements, even if they are
made in a broader narrative that is generally
self-inculpatory." United States v. Williamson,
512 U.S. 594, 600-01 (1994). Under Williamson,
the district court must consider whether each
statement, not just the confession as a whole,
was truly self-inculpatory. See id. at 604. Here,
the record is silent on whether the district
court considered whether each statement by
Olivares introduced at trial was genuinely self-
inculpatory, and certainly the government never
urged the district court to parse Olivares’s
individual statements as Williamson required.
Thus, it is not evident whether Olivares’s post-
arrest statements were properly admitted under
Rule 804(b)(3) in the first instance. Castelan,
however, does not argue that the statements were
inadmissible under Rule 804(b)(3). He argues only
that the admission of Olivares’s statements
violated his rights under the Confrontation
Clause, citing Lilly. Thus, we will assume for
purposes of this opinion that Olivares’s post-
arrest statements were properly admitted under
Rule 804(b)(3) and turn our attention to the
issue of whether the admission of Olivares’s
post-arrest statements violated the Confrontation
Clause.

      In Lilly, a plurality of the Supreme Court
concluded that under the Confrontation Clause
post-arrest statements made by a nontestifying
accomplice that inculpate a defendant cannot be
admitted against that defendant unless the
government demonstrates that the statements bear
"particularized guarantees of trustworthiness."
See 527 U.S. at 136. "The residual
’trustworthiness’ test credits the axiom that a
rigid application of the [Confrontation] Clause’s
standard for admissibility might in the
exceptional case exclude a statement of an
unavailable witness that is incontestably
probative, competent, and reliable, yet
nonetheless outside of any firmly rooted
exception." Id. The guarantees of trustworthiness
must be inherent in the circumstances of the
testimony itself; the fact that other evidence
corroborates the testimony in question does not
suffice. See id. at 138.

      Here, the government asserts that Olivares’s
post-arrest statements are inherently trustworthy
because Olivares "did not shift blame from
himself or minimize his role" in making the
statements. Thus, the Government contends that
the statements declared unreliable in Lilly are
distinguishable because the defendant in Lilly
attempted to shift much of the criminal liability
onto his codefendants. In response, Castelan
argues that Olivares’s statements are unreliable
because they were made to law enforcement
officers during a custodial interview, in which
Olivares inquired whether he would receive any
benefit for his cooperation.

      In Lilly, the plurality stated, "[i]t is highly
unlikely that the presumptive unreliability that
attaches to accomplices’ confessions that shift
or spread blame can be effectively rebutted when
. . . the government is involved in the
statements’ production, and when the statements
describe past events and have not been subjected
to adversarial testing." Id. at 137. Since Lilly
was decided, no circuit has yet determined if--
and under what circumstances--an accomplice’s
custodial confession implicating a defendant can
ever be deemed to possess sufficient inherent
indicia of trustworthiness to satisfy the
Confrontation Clause./7 Thus, the full scope of
Lilly remains undefined. At least one treatise
has explained that in Lilly "all nine justices of
the Supreme Court indicated, more or less
explicitly, that the admission of custodial
statements to law enforcement personnel against
penal interest . . . whether or not constituting
a confession, that incriminate another person
violates the confrontation clause when admitted
against such other person in a criminal case."
See 31 Charles Alan Wright, Arthur R. Miller, &
Michael H. Graham, Federal Practice and Procedure
sec. 6742 (2d ed. 2000).

      Here, the fact that Olivares’s confession was
made to law enforcement officers during a
custodial interview is but one factor implicating
the reliability of his statements. Of equal
significance is a DEA agent’s statement during
Olivares’s interview that "he could help himself
by cooperating with the agents," and Olivares’s
attempt to then "press[ ]" the agent on "what
could be done to help him." Olivares was not
given any explicit offers of leniency, but was
told that the agents would report any assistance
he provided to the prosecutors and judge assigned
to the case.

      Though the exchange between Olivares and the
interviewing agents reveals a motive for Olivares
to implicate Castelan, the district court held
that Olivares’s statements were nonetheless
reliable because Olivares was not "trying to
minimize his own position or his own involvement
by thrusting upon another." But as the plurality
noted in Lilly, the non-self-inculpatory parts of
a confession are not rendered more credible
simply because the confessor broadly inculpates
himself as well. See 526 U.S. at 138-39. "’One of
the most effective ways to lie is to mix
falsehood with truth, especially truth that seems
persuasive because it is self-inculpatory.’" Id.
at 133 (quoting Williamson, 512 U.S. at 599-600).
Because Olivares’s post-arrest statements were
made in custodial interviews with law enforcement
officials in which Olivares specifically inquired
as to the benefits of his cooperation with
authorities, we conclude that the statements lack
inherent particularized guarantees of
trustworthiness sufficient to satisfy the
Confrontation Clause given the plurality opinion
in Lilly.

      Having concluded that the admission of
Olivares’s post-arrest statements violated the
Confrontation Clause, we turn to the issue of
harmless error. See Delaware v. Van Ardsall, 475
U.S. 673, 684 (1986) (holding that harmless error
analysis applies to Confrontation Clause errors).
The Supreme Court has held that an otherwise-
valid conviction should not be set aside if the
constitutional error was harmless beyond a
reasonable doubt. See Chapman v. California, 386
U.S. 18, 24 (1967). "The test for harmless error
is whether, in the mind of the average juror, the
prosecution’s case would have been ’significantly
less persuasive’ had the improper evidence been
excluded." United States v. Eskridge, 164 F.3d
1042, 1044 (7th Cir. 1998) (quoting Schneble v.
Florida, 405 U.S. 427, 432 (1972)). Whether an
error is harmless beyond a reasonable doubt
depends upon factors such as 1) the importance of
a witness’s testimony in the prosecution’s case,
2) whether the testimony was cumulative, 3) the
presence or absence of corroborating or
contradictory evidence, and 4) the overall
strength of the prosecution’s case. See Van
Ardsall, 475 U.S. at 684.

      The government bears the burden of showing that
a violation of the Confrontation Clause was
harmless beyond a reasonable doubt. See United
States v. Cotnam, 88 F.3d 487, 500 (7th Cir.
1996). The government argues that "Olivares’
statement was essentially cumulative evidence
that added little or nothing to already
overwhelming evidence against the defendant in
the case." Based upon our review of the record,
we are confident that the prosecution presented
sufficient evidence for the jury properly to have
convicted Castelan in the absence of Olivares’s
post-arrest statements.

      With respect to the first Van Ardsall factor,
Olivares’s value as a prosecution witness was not
overwhelming. His post-arrest statements were
used primarily to establish the following facts:
1) Castelan provided the kilogram of cocaine
delivered on December 17; 2) Olivares and
Castelan counted the money for the kilogram of
cocaine in the bathroom of the El Ranchito
Restaurant; 3) Nina-Hernandez was supposed to
provide security on December 30, turn the garage
door opener over to Castelan at the gas station,
and inform Castelan when it was safe to deliver
the cocaine; and 4) while he was waiting with
Agent Karountzos for the six kilograms of cocaine
to be delivered, Olivares called Castelan to
discuss the plans for delivery.

      All but one of the facts corroborated by
Olivares’s testimony were established by other
evidence presented at trial. DEA Agent Suzanne
Mitchell testified that Castelan admitted making
arrangements with Garcia-Sandoval to provide the
kilogram of cocaine sold to "Frank" on December
17. Nina-Hernandez testified as to his role in
the transaction on December 30. And, finally,
Agent Karountzos testified that while he was
waiting with Olivares for the six kilograms of
cocaine to be delivered Olivares spoke on the
phone to someone named "Juan" in Spanish.
Furthermore, in an audiotape of the meeting
between Agent Karountzos and Olivares that was
played for the jury and translated into English,
Olivares is heard telling Juan, "[t]his guy is
ready . . . have Carlos come up with . . . the
five." Although both Castelan and Garcia are
named Juan, no telephone calls were placed
between the cellular phones of Olivares and
Garcia. Several phone calls, however, were placed
between the cellular phones of Olivares and
Castelan on the morning of December 30.

      Although the government was unable to
corroborate Olivares’s testimony that he and
Castelan counted the money for the cocaine in the
bathroom of the El Ranchito restaurant, such
corroboration was unnecessary given the strength
of the government’s other evidence./8 First, the
Mercury Cougar Castelan was occupying at the time
of his arrest was found to contain six kilograms
of cocaine. Although Castelan initially
disclaimed any knowledge that the cocaine was
hidden in the car, he later admitted in his post-
arrest interview that he told Garcia-Sandoval,
the owner of the car, to provide the six
kilograms of cocaine. Moreover, Castelan admitted
to calling Garcia-Sandoval to obtain the initial
kilogram of cocaine sold to "Frank" on December
17, so the evidence that he helped count the
money received from the sale of that cocaine
added little. Next, Olivares is heard on the
audiotape telling Agent Karountzos that "Juan" is
bringing the six kilograms of cocaine. On the
same audiotape, Olivares states that the six
kilograms of cocaine is being provided by the
same source that provided the cocaine on December
17. Finally, telephone records evidence extensive
telephone calls between Castelan and Olivares and
Castelan and Garcia-Sandoval on the dates and
around the precise times of the two drug
transactions. For example, in a phone call placed
at 5:13 PM on December 29, 1999, Olivares
informed "Frank" that his suppliers had just
called him about when the six kilograms of
cocaine could be delivered; telephone records
show that at 4:44 PM that day a call was placed
from Castelan’s cellar phone to Garcia-Sandoval’s
cellular phone, and at 4:49 PM a call was placed
from Castelan’s cellular phone to Olivares’s
cellular phone. Furthermore, even though Garcia-
Sandoval’s car was found to contain the six
kilograms of cocaine that Olivares agree to sell
to "Frank," no telephone calls were ever placed
between the cellular phones of Olivares and
Garcia-Sandoval. Rather, the telephone records
demonstrate a pattern of Castelan contacting
Garcia-Sandoval either shortly before or shortly
after speaking with Olivares./9 In light of
Castelan’s own admissions and the other evidence
presented at trial, it is clear beyond a
reasonable doubt that the decision to admit
Olivares’s post-arrest statements did not affect
the jury’s overall verdict.

III.   CONCLUSION

      Because Olivares’s post-arrest statements
possessed insufficient particularized guarantees
to satisfy the Confrontation Clause, the district
court erred in allowing the statements to be
presented at Castelan’s trial. But, after
balancing Olivares’s value as a prosecution
witness, the cumulative impact of his out-of-
court statements, and the overall strength of the
government’s case, we conclude that the decision
to admit his out-of-court statements was harmless
beyond a reasonable doubt. Therefore, the
judgment of the district court is AFFIRMED.



/1 Shortly before Olivares told "Frank" that he had
spoken to the "guy" whose employee would deliver
the "truck," two calls were placed from
Olivares’s cellular phone to Castelan’s cellular
phone, and one call was placed from Castelan’s
cellular phone to Garcia-Sandoval’s cellular
phone.


/2 Telephone records document the following calls
that afternoon: 1) at 2:01 PM a call was made
from Castelan’s cellular phone to Garcia-
Sandoval’s cellular phone; 2) at 2:34 PM a call
was made from Olivares’s cellular phone to
Castelan’s cellular phone; 3) at 2:44 PM a call
was made from Olivares’s cellular phone to
Castelan’s cellular phone; and 4) at 3:11 PM a
call was made from Castelan’s cellular phone to
Olivares’s cellular phone.

/3 Telephone records for December 29, 1997,
establish that shortly before Olivares spoke with
"Frank," a call was placed from Castelan’s
cellular phone to Olivares’s cellular phone.

/4 Telephone records establish that between 9:35 AM
and 10:36 AM on the day of arrest, four calls
were placed from Castelan’s cellular phone to
Olivares’s cellular phone, three calls were made
from Olivares’s cellular phone to Castelan’s
cellular phone, two calls were made from
Castelan’s cellular phone to Garcia-Sandoval’s
cellular phone, and three calls were made from
Garcia-Sandoval’s cellular phone to Castelan’s
cellular phone. No phone calls were placed
between Olivares’s cellular phone and Garcia-
Sandoval’s cellular phone. In addition, on a
recording from a body transmitter worn by Agent
Karountzos, Olivares is heard having a telephone
conversation in which he tells "Juan" to "have
Carlos come up with the five" after getting his
okay. On the same recording, Olivares tells
"Frank" that "Juan" is bringing the cocaine and
that the same people will be providing the six
kilograms of cocaine who provided the previous
kilogram of cocaine.

/5 Garcia-Sandoval failed to appear for his
arraignment and remains a fugitive.

/6 Rule 804(b)(3) provides that a statement is not
excluded by the hearsay rule if the declarant is
unavailable and it is:

[a] statement which was at the time of its making
so far contrary to the declarant’s pecuniary or
proprietary interest, or so far tended to subject
the declarant to civil or criminal liability, or
to render invalid a claim by the declarant
against another, that a reasonable person in the
declarant’s position would not have made the
statement unless believing it to be true.

/7 The only case we have decided involving Lilly
concerned the admissibility of out-of-court
statements the defendant made to his fiancee. See
Robbins, 197 F.3d at 840. In Robbins we followed
the plurality opinion in Lilly, and in upholding
the admission of the statement to the defendant’s
fiancee, we explicitly distinguished it from a
confession to law enforcement. See id at 839.

/8 In addition to Olivares’s post-arrest statements,
evidence presented at Castelan’s trial included:
1) the testimony of Agent Karountzos, audiotapes
of five conversations between Agent Karountzos
and Olivares, and an audiotape of the final
meeting between Agent Korountzos and Olivares,
which was recorded by a hidden transmitter; 2)
the testimony of two DEA agents who conducted
video surveillance of the two cocaine deals as
well as redacted videotapes made by the agents;
3) the testimony of DEA Agent Suzanne Mitchell
who described several admissions Castelan made
during his post-arrest interview; 4) phone
records documenting the calls made from
Castelan’s, Olivares’s, and Garcia-Sandoval’s
cellular phones and exhibits summarizing those
calls; and 5) the testimony of Nina-Hernandez.

\9 Castelan’s argument that Olivares directly
contacted Garcia-Sandoval to obtain cocaine for
both transactions is further undermined by his
own post-arrest statement that he contacted
Garcia-Sandoval to obtain the cocaine for the
first transaction. We note, moreover, that in a
taped conversation played for the jury, Olivares
stated that the cocaine for the second
transaction would be provided by "the same
people" who provided the cocaine for the first
transaction.
