                                  ___________

                                  No. 96-1135
                                  ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      *   Appeal from the United States
     v.                               *   District Court for the
                                      *   Southern District of Iowa.
Billy Joe Worley, Jr.,                *
                                      *
           Appellant.                 *


                                  ___________

                   Submitted:     May 14, 1996

                         Filed:   July 8, 1996
                                  ___________

Before MORRIS SHEPPARD ARNOLD, Circuit Judge, HEANEY and HENLEY, Senior
     Circuit Judges.

                                  ___________

HENLEY, Senior Circuit Judge.


     Billy Joe Worley, Jr. appeals from an order of the district court1
denying his motion for a new trial after a jury found him guilty of being
a felon in possession of a weapon, in violation of 18 U.S.C. § 922(g).    We
affirm.


     At approximately 5:30 a.m. on May 17, 1995, Worley and Rhonda McGee
arrived at the Heartland Inn motel seeking a room.    Sean Hickey, the desk
attendant, asked Worley for a credit card and identification.   After Worley
placed his briefcase on the counter and opened the lid, Hickey saw what he
believed to be a handgun.   Although he was "scared," Hickey had Worley fill
out the registration card and gave him a key to a room.     However, Hickey




      1
      The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
telephoned the police and told an officer that he believed Worley had a gun
in his briefcase.         Hickey also told Tracy Sahl, the desk attendant who
relieved him at 7:00 a.m., about the gun.           When Worley did not check out
by the 11:00 a.m. check-out time and did not answer telephone calls or
awaken when two motel employees went into his room and saw him apparently
asleep on the bed, Sahl called the police.           Officers Danny Middleton and
Eric Huber responded. They went to Worley's room, knocked on the door and
announced their presence, but received no response.           They then opened the
door with a passkey and awakened Worley, who was alone in the room.               The
officers explained that the desk attendant thought he had a gun and might
have harmed himself or someone else.        Worley denied having a gun, but told
the officers he might have a lighter in his briefcase that looked like a
gun.   The officers asked if Worley could show them the lighter.               Worley
looked through the briefcase for two or three minutes but could not find
anything that looked like a gun.       Officer Huber then searched the briefcase
and found a .22 caliber Derringer handgun.         Worley denied being a felon and
denied that the gun was his, claiming it belonged to a female friend who
had been with him at the motel.       After determining that Worley was a felon,
the officers placed him under arrest.


       At   trial,   in    addition   to   the   officers'   and   motel   employees'
testimony, the government presented the testimony of Kristi Hall.                 She
testified that in April 1995, pursuant to Worley's request,           she purchased
the seized Derringer and gave it to Worley.           On direct examination, Hall
testified that when she first talked to investigating agents she had lied
about purchasing the gun for Worley and admitted that she had been granted
immunity in exchange for her truthful testimony.             Hall also stated that
Worley had asked her to "get him off" by falsely testifying that she was
with him at the motel on May 17 and had the gun.


       In Worley's defense, McGee testified that Hall was with her and
Worley in the motel room on May 17, that Hall had the




                                           -2-
Derringer, and that Hall was alone with Worley after McGee left the room
at about 9:30 a.m.    On cross-examination, McGee admitted that she had been
convicted of forgery and theft.


       After the jury found Worley guilty of being a felon in possession,
Worley filed a motion for a new trial based on newly discovered evidence.
In support, he attached affidavits of Ronald Workman, who had been in jail
with Worley, and Steve Shaffer.    Workman stated that after the conviction
Hall told him that she had planted the gun in Worley's briefcase and that
he was aware of other instances when Hall had planted guns.   Shaffer stated
that Hall had told him on the day of the arrest that she had planted the
gun in Worley's briefcase and that he knew Hall had planted a gun in
another person's briefcase.


       After a hearing, the district court denied the motion, finding that
the alleged new evidence was merely impeaching, cumulative, and probably
would not produce an acquittal.   See United States v. Ireland, 62 F.3d 227,
230 (8th Cir. 1995).     "We will reverse the district court's decision to
deny   a   motion for a new trial only if there is a clear abuse of
discretion."   Id.   In this case, the district court - which "is in the best
position to determine the impact evidence will have upon the jury" - did
not abuse its discretion.     Id. at 230-31.


       On appeal Worley argues that the information in the affidavits is not
merely impeaching or cumulative, but is substantive evidence that he did
not knowingly possess the gun.    If Hall's statements that she had planted
the gun are offered to prove the truth of the matter asserted, and not for
impeachment, the statements are inadmissible hearsay.    In United States v.
Menard, 939 F.2d 599, 600 (8th Cir. 1991) (per curiam), this court held
that a district court did not abuse its discretion in denying a motion for
a new trial based on affidavits of family members and defendant's counsel
stating that defendant's brother told them he had shot the victim.




                                     -3-
We explained that the statements were inadmissible not only under Fed. R.
Evid. 801 and 802, but also were inadmissible as statements against penal
interest under Rule 804(b)(3), because there was no showing that the
declarant was unavailable and no "corroborating circumstances clearly
indicat[ing]          the   trustworthiness       of    [the]     statements,"     as    the   rule
                  2
required.       Id.     Likewise in this case, even assuming Hall's unavailability
within    the     meaning      of     subsection       (a)   of   Rule   804,    there    are    no
"corroborating circumstances clearly indicating the trustworthiness" of her
alleged statements to Workman and Shaffer.                        See also United States v.
Mackin, 561 F.2d 958, 962 (D.C. Cir.) (probation officer's affidavit
stating that government witness had told him she committed perjury at
defendant's trial inadmissible under Rule 804(b)(3) because of lack of
corroborating circumstances), cert. denied, 434 U.S. 959 (1977).                         Moreover,
the affiants' statements regarding Hall's alleged penchant for planting
guns would also be inadmissible as substantive evidence under Fed. R. Evid.
404(a), which provides that "[e]vidence of a person's character or a trait
of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion."3


     In     any       event,   even    if   the    information      in   the    affidavits     were
admissible, we agree with the district court that it probably would not
produce an acquittal on retrial.             As the district court noted, in addition
to Hall's testimony that she gave the gun to Worley, other evidence at
trial demonstrated that Worley knowingly




            2
         Rule 804(b)(3) provides, in relevant part, that "[a]
statement tending to expose the declarant to criminal liability and
offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of
the statement." See United States v. Mendoza, No. 95-3572, slip
op. at 8-9 (8th Cir. June 11, 1996) (discussing requirements of
admissibility under Rule 804(b)(3)).
            3
         Fed. R. Evid. 607, 608, and 609 provide in certain
circumstances character evidence may be used to impeach a witness's
credibility.

                                                  -4-
possessed the gun.   A reasonable juror could infer that Worley knew that
the gun was in his briefcase not only from Hickey's testimony that he could
see the gun when Worley opened his briefcase at the time of registration,
but also from Worley's own statement to the arresting officers that he had
something in the briefcase that looked like a gun.    See United States v.
Johnson, 12 F.3d 827, 833-34 (8th Cir.)        (affiant's statement that
defendant did not know gun was present at house because affiant owned gun
and concealed it without defendant's knowledge probably would not produce
acquittal of firearm conviction in view of trial evidence demonstrating
defendant knowingly possessed gun), cert. denied, 114 S. Ct. 1860 (1994).4


     Accordingly, we affirm the judgment of the district court.


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




     4
      Johnson upheld convictions for use of firearms in relation to
drug trafficking offenses in violation of 18 U.S.C. § 924(c)(1).
To the extent that the case upheld the convictions based on the
mere proximity and availability of firearms found in houses where
drugs were dealt, it is of questionable validity in light of United
States v. Bailey, 116 S. Ct. 501 (1995). Rejecting the "proximity
and accessibility test," in Bailey the Supreme Court held that
"use" under section 924(c)(1) means "active employment" of a
firearm. Id. at 505.

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