          United States Court of Appeals
                       For the First Circuit

No. 13-1748

                     UNITED STATES OF AMERICA,

                              Appellee,

                                 v.

                         KYVANI OCASIO-RUIZ,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

              [Hon. Jose A. Fuste, U.S. District Judge]


                                Before
                         Lynch, Chief Judge,
                     Souter,* Associate Justice,
                      and Stahl, Circuit Judge.


     Anita Hill Adames for appellant.
     Nelson Pérez-Sosa, Assistant United States Attorney, with whom
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Francisco
A. Besosa-Martínez, Assistant United States Attorney, were on
brief, for appellee.


                          February 27, 2015




     *
          Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
     SOUTER, Associate Justice.    Kyvani Ocasio-Ruiz was convicted

of a number of crimes arising out of a carjacking and murder in

Puerto Rico.   The government's evidence at trial rested on the

testimony of a cooperating witness, who testified that he, Ocasio-

Ruiz, and four other co-conspirators (including Luis Maldonado-

Castro) carjacked Joseph A. Seymour.    His evidence was that, after

interrogating Seymour on suspicion of snitching to a rival drug

gang, the group drove to a secluded place, with Ocasio-Ruiz and

Maldonado-Castro sitting on opposite sides of Seymour in the back

seat of a truck.   The witness (who was in the back of the truck)

heard one gunshot shortly after he heard Ocasio-Ruiz ask Maldonado-

Castro for his pistol.

     At trial, Ocasio-Ruiz sought to introduce the testimony of

Maldonado-Castro's mother. Maldonado-Castro had been killed before

trial, but his mother was prepared to testify that, shortly before

his death, he came to her in her house and confessed that he alone

had killed Seymour.   Specifically, the mother proffered that her

son said that "he was by himself all the time."

     The district court refused to admit the mother's testimony,

concluding that it was not hearsay admissible under Fed. R. Evid.

804(b)(3), which permits the admission of hearsay declarations

against interest of an unavailable witness only when sufficient

corroboration exists for the hearsay itself.     The district court

found "absolutely no corroborating circumstances."


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     We reverse.    The district court's finding was erroneous, as

this court has recognized that statements against interest made to

a close relation bear at least some corroborating indicia of

truthfulness. And because the error is not harmless, we vacate the

convictions as to all counts and remand the case to the district

court.

                                    I.

     Ocasio-Ruiz was indicted and brought to trial on four counts:

(1) he and his co-defendants knowingly and intentionally conspired,

with intent to cause death and serious bodily harm, to take an

automobile   from   Seymour   by   force,    violence,      or   intimidation,

resulting in Seymour's death; (2) he and his co-defendants aided

and abetted each other, intending to cause death and serious bodily

harm, knowingly and wilfully to take an automobile from Seymour by

force, violence, or intimidation, resulting in Seymour's death; (3)

he and his co-defendants aided and abetted each other in knowingly

using, brandishing, and discharging a firearm during a carjacking;

and (4) he and his co-defendants aided and abetted each other in

wilfully, intentionally, deliberately, and maliciously, and with

premeditation causing Seymour's death by use of a firearm during

the perpetration of the robbery.

     Shortly after the government concluded its case-in-chief

(resting on the cooperating witness's testimony), Ocasio-Ruiz

called   Maldonado-Castro's    mother       to   testify.        Following   an


                                    -3-
objection,       the    mother   proffered      her   testimony,   as   recounted

earlier.

        After considering the parties' legal memoranda, the district

court excluded the mother's testimony as inadmissible hearsay. The

district court cited Rule 804(b)(3), and found two conditions of

admissibility satisfied: that the declarant (Maldonado-Castro) was

unavailable and that the confession was against the declarant's

interest. As to the third condition, however, it found "that there

[are]       absolutely   no   corroborating      circumstances     that   clearly

indicate the trustworthiness of [the confession]."                      It added,

"[t]here        [are]     simply     no      corroborating     circumstances."

Accordingly, it excluded the mother's testimony.1

        The jury found Ocasio-Ruiz guilty on all four counts.                 The

district court sentenced him to life in prison on counts one, two,

and four, and ten years in prison on count three, all to run

consecutively.



        1
          Ocasio-Ruiz also proffered the testimony of a minister to
corroborate Maldonado-Castro's confession.      The minister met
Maldonado-Castro approximately two weeks prior to the confession,
and based on their interaction that night (which included the
cleric's declaration to Maldonado-Castro that the angel of death
hovered over him), the minister believed that Maldonado-Castro had
accepted God. Ocasio-Ruiz viewed this testimony as establishing
Maldonado-Castro's guilty state of mind, which Ocasio-Ruiz viewed
as some corroboration of Maldonado-Castro's confessing a few weeks
later to his mother. The district court found no corroboration in
the cleric's testimony and found it otherwise irrelevant. We do
not find this conclusion to be an abuse of discretion, although on
the face of the record, this is not the only evaluation reasonably
possible.

                                          -4-
                                      II.

     Ocasio-Ruiz's principal contention is that the district court

committed reversible error in its analysis of the admissibility of

the testimony of Maldonado-Castro's mother.

                                      A.

     Our enquiry into the claim of error goes to the hearsay

exception for statements against interest provided by Federal Rule

of Evidence 804(b)(3).           Under this Rule, a statement is not

excluded by the ordinary rule against hearsay if the declarant is

unavailable as a witness and if the following conditions are met:

     (A) a reasonable person in the declarant's position would
     have made [the statement] 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) [the statement] 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.

Fed. R. Evid. 804(b)(3).

     "Rule 804(b)(3) is founded on the commonsense notion that

reasonable people, even reasonable people who are not especially

honest, tend not to make self-inculpatory statements unless they

believe them to be true."        Williamson v. United States, 512 U.S.

594, 599 (1994).       To guard against the possibility of fabrication,

however,   a   clear    degree   of   corroboration   is   required.   See

generally United States v. Barrett, 539 F.2d 244, 249-53 (1st Cir.

                                      -5-
1976)    (tracing     the   history    and    purpose    of   the   corroboration

requirement).       Such corroboration "is not independent evidence

supporting the truth of the matters asserted by the hearsay

statements, but evidence that clearly indicates that the statements

are worthy of belief, based upon the circumstances in which the

statements were made."          United States v. Barone, 114 F.3d 1284,

1300    (1st   Cir.    1997).      This      requisite    indication     "is   not

unrealistically severe but does go beyond minimal corroboration."

United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997) (citation

and internal quotation marks omitted).

        The district court's finding that there were "absolutely no

corroborating circumstances" is incorrect as a matter of law, as

shown by cases in which this court has repeatedly recognized that

a close family relationship between a declarant and recipient of a

statement against interest is an indication of truthfulness.                   In

Barone, we applied this principle to a statement made to the

declarant's sister in a non-custodial setting.                  See 114 F.3d at

1301.    Much more recently, we applied it to a statement made to the

declarant's cousin. United States v. Monserrate-Valentín, 729 F.3d

31, 53 (1st Cir. 2013).               Indeed, in Monserrate-Valentín, the

familial context was considered not only competent evidence of

truthfulness but sufficient of itself to corroborate the statement.

Id.     And we have even extended the principle of relationship as

competent corroborative evidence to a non-familial acquaintance,


                                        -6-
the declarant's fellow inmate, in United States v. Pelletier, 666

F.3d 1, 8 (1st Cir. 2011).         While these cases do not hold that

making a statement against interest to a close relation is a

sufficient corroborating fact as a matter of law under Rule

804(b)(3), our affirmation of district court cases holding it

competent    evidence   (and,     in   one     instance,        accepting      it   as

sufficient in fact) reflects our acknowledgment that a familial tie

has corroborative value.     It follows that the circumstances of the

statement in this case, where the declarant was speaking to his

mother, and doing so in her house in the absence of any stimulus

from any police activity, provide some corroboration.                   Because the

district court did not consider our relevant case law and its

application to these facts, it erred as a matter of law in finding

"absolutely no corroborating circumstances."

     We are mindful, of course, that, under the law of this

circuit, a district court's judgment about corroboration will not

be set aside lightly.     See Barrett, 539 F.2d at 253 ("Trial judges

will have to make an assessment case by case and in attempting to

understand the standard may be aided by the legislative comments

quoted above.    In cases that are open to reasonable differences,

this court is unlikely to substitute its judgment for that of the

district    court.");   Barone,    114       F.3d   at   1301    ("In    the   final

analysis, the Rule 804(b)(3) corroboration inquiry is concerned

only with the admissibility of hearsay evidence based upon its


                                       -7-
trustworthiness, a determination committed to the sound discretion

of the district court."); Mackey, 117 F.3d at 29 ("[T]he district

court has a substantial degree of discretion in making this

important finding on trustworthiness." (internal quotation marks

omitted)); Pelletier, 666 F.3d at 9 ("[W]e respect the district

court's determination absent clear abuse.").     But the district

court did not exercise its discretion here.   Its judgment was not

that the probative force of some corroboration existed but was too

minimal to meet the standard required by Rule 804(b)(3).   Rather,

it found no corroborating circumstances and thus proceeded to

exclude the mother's testimony without any evaluation. Thus, there

is no district court judgment call to which we could defer here,

only a factual finding that was erroneous as a matter of law, with

the consequence that the district court made no analysis of the

corroborative underpinnings of the proffered testimony under this

court's law.

                                B.

     Having found error, our next enquiry is whether it warrants

reversal, that is, whether the error is harmless.      We will not

reverse if it is highly probable that the error did not contribute

to the verdict, United States v. Delgado-Marrero, 744 F.3d 167, 179

(1st Cir. 2014), which Judge Boudin has explained to mean that a

conviction will be upheld if it is highly probable that the result

would have been the same, United States v. Vigneau, 187 F.3d 82, 86


                               -8-
(1st Cir. 1999); see also United States v. Sepúlveda, 15 F.3d 1161,

1182 (1st Cir. 1993) (discussing factors relevant to determining

harmlessness).    Because the issue was preserved, the burden of

persuasion rests on the government, Delgado-Marrero, 744 F.3d at

179, which has pressed no argument of harmlessness before this

court.

     In   this   case,   the   harmlessness   enquiry   comprises   two

successive questions.     First, was the error harmless because it is

highly probable that, even with the application of governing case

law, the mother's testimony would have been excluded?      Second, was

the error harmless because, even if the mother's testimony had been

admitted, it is highly probable that Ocasio-Ruiz would have been

convicted on all four counts?     We answer no to both questions.

     As to the first, we cannot infer a high probability that the

mother's testimony would have been excluded; there is sufficient

evidence from which the district court could have concluded, in the

exercise of its discretion, that the hearsay was sufficiently

corroborated.    To begin with, as we said, our cases acknowledge

that making a statement against interest to a close relation is a

competent corroborating fact. And familial context is not the only

such fact in this case.    The nature of the statement (a confession

to murder could subject the declarant to severe penalty), the

detail of the proffer (which included several admissions that

Maldonado-Castro acted alone), the location in which it was made (a


                                  -9-
non-custodial,    family   setting)       provide   further    corroborating

elements.     Again, this is not to say that the hearsay in the

mother's    testimony   must    be    deemed   corroborated,   and   thus   be

admitted, in this case.        We cannot say that, on fully weighing the

facts on remand (not necessarily limited to those just mentioned),

the district court will not have grounds to conclude, in the

exercise of its discretion, that the mother's testimony lacks

sufficient corroboration.2           Such is the nature of discretionary

judgments. For present purposes (including the preserved nature of

the claim and the government's waiver of a harmlessness argument),

however, it need only be established that the district court could

have exercised its discretion to admit the mother's testimony.

Because that is so, we could not find the error harmless without

more.

        As to the second question, we cannot find it to be highly

probable that the mother's testimony would not have altered the

jury's verdict.    As noted earlier, the mother's proffer was that

her son confessed to committing the murder alone, that "he was by

himself all the time."          She pressed him on this point, and he


        2
       While the district court appeared skeptical of the mother's
credibility because she waited many years before coming forward,
"the credibility of the witness who relates the statement is not a
proper factor for the court to consider in assessing corroborating
circumstances.    To base admission or exclusion of a hearsay
statement on the witness's credibility would usurp the jury's role
of determining the credibility of testifying witnesses." Fed. R.
Evid. 804, advisory committee's note (2010 amendments); see also
Barone, 114 F.3d at 1300-01.

                                      -10-
repeated    that    he   acted   alone.     This      flatly   contradicts   the

testimony of the government's cooperating witness, who gave the

only evidence tying Ocasio-Ruiz to the carjacking and murder.

Accordingly, if the mother's testimony had been admitted, the jury

would have been forced to make a credibility determination. And if

the jury had found Maldonado-Castro's mother and the hearsay

admission more credible than the cooperating witness, then Ocasio-

Ruiz could well have been acquitted on all counts as having been

uninvolved in the murder or carjacking or not involved to the

requisite    degree      of   clarity.    We    may    wonder   about   such   a

possibility, but we have no evidentiary basis to exclude it as a

matter of fact, and cannot exclude it as a matter of law.

     Given these circumstances, we cannot reach a conclusion to the

degree of a high probability that the erroneous evidentiary ruling

did not contribute to the verdict.                 We vacate Ocasio-Ruiz's

convictions accordingly.

                                     III.

     We make one final observation.            Although, after vacating all

the convictions, we need not consider any other errors Ocasio-Ruiz

raises on appeal, we address one because it may recur on remand.

Ocasio-Ruiz argues that he was improperly sentenced to life in

prison on count one, which was essentially conspiracy to commit

carjacking.        Although the carjacking statute itself carries a

statutory maximum sentence of life in prison if death results, 18


                                     -11-
U.S.C. § 2119, the federal conspiracy statute carries only a five

year maximum, id. § 371.       Accordingly, Ocasio-Ruiz argues that he

should have received no more than a five-year sentence on count

one.

       We   agree   with   Ocasio-Ruiz.    Although    count   one   in   the

indictment cites the substantive carjacking statute, and this

statute provides for a life sentence if, as here, death results,

id. § 2119, the narrative portions of the indictment make it clear

that count one charged only conspiracy, not a substantive crime.

And, as Ocasio-Ruiz correctly observes, the general conspiracy

statute under which he was charged carries a five year maximum

sentence.     Id. § 371.      By contrast, Congress has created some

specific conspiracy crimes with parallel sentencing, that is, with

the statutory maximum sentence for a conspiracy crime following

that of the underlying substantive offense.           See, e.g., 21 U.S.C.

§ 846 (drug conspiracy); 18 U.S.C. § 1117 (conspiracy to commit

homicide).     Because, however, Ocasio-Ruiz was charged under the

general federal conspiracy statute, which does not itself provide

for parallel sentencing, he should not have been sentenced to more

than five years in prison on count one.

                                    IV.

       The judgment of the district court is reversed and vacated,

and the case is remanded.




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