               Case: 12-15208        Date Filed: 02/05/2015      Page: 1 of 26


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-15208
                               ________________________

                         D.C. Docket Nos. 0:10-cv-61835-KAM,
                                0:05-cr-60160-KAM-10


MARCUS RIVERS,

              Petitioner-Appellant,

                                            versus

UNITED STATES OF AMERICA,

              Respondent-Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                     (February 5, 2015)

Before ED CARNES, Chief Judge, RESTANI, * Judge, and ROBRENO, ** District
Judge.


       *
         Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
       **
         Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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ROBRENO, District Judge:

      This appeal arises out of a claim of ineffective assistance of counsel. After

his 2007 conviction for conspiring to possess with intent to distribute, Marcus

Rivers filed a motion to vacate his sentence under 28 U.S.C. § 2255, alleging that

his trial attorney — who died before Rivers filed his § 2255 petition — was

constitutionally ineffective in several ways. At an evidentiary hearing on Rivers’s

claims, counsel for Rivers’s codefendant testified, in relevant part, about

conversations he had with Rivers’s lawyer before the trial. Over Rivers’s objection,

the district court permitted that testimony under Federal Rule of Evidence 807, the

residual exception to the hearsay rules. After the district court denied Rivers’s

§ 2255 motion, Rivers was granted a certificate of appealability on the question of

whether that hearsay testimony was properly admitted under Rule 807, and now

brings this appeal.

      We hold that the statements admitted under Rule 807 lacked the

“circumstantial guarantees of trustworthiness” required by the rule, and so it was

error for the district court to admit them. However, we will not reverse the district

court’s denial of Rivers’s § 2255 motion because, even after excising the

improperly admitted testimony of his codefendant’s counsel, Rivers has failed to

meet his burden to prove the claims in his petition. Therefore, the Rule 807 error

was harmless and we affirm the district court’s denial of Rivers’s § 2255 motion.



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                                           I.

      In 2006, Marcus Rivers and ten other defendants were charged by

superseding indictment with (1) conspiring to import into the United States at least

five kilograms of a substance containing a detectable amount of cocaine and a

substance containing a detectable amount of marijuana, in violation of 18 U.S.C. §

2 and 21 U.S.C. §§ 952(a), 960(b)(1)(B) and (b)(4), and 963 (Count 1); and (2)

conspiring to possess with intent to distribute at least five kilograms of a substance

containing a detectable amount of cocaine and a substance containing a detectable

amount of marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and (b)(1)(D), and 846 (Count 2).

      Ana Maria Jhones was appointed as Rivers’s attorney. In a motion for

continuance of trial, Jhones indicated that she had been unable to review Rivers’s

case with him due to his financial inability to travel to her office, and that he had

not participated “in ANY communication” with her regarding his defense. Jhones

later filed a motion to withdraw as Rivers’s counsel due to irreconcilable

differences; the magistrate judge granted the motion and ordered the clerk to

appoint new counsel. On April 10, 2007, the court appointed Brian R. McComb to

represent Rivers.




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       The court held a May 23, 2007, hearing to determine the admissibility of

wiretap evidence against Rivers and several other codefendants, including Thomas

Jones. Neither Rivers nor Jones was present at the hearing.

       Trial began two weeks later. At the close of the government’s case, the court

granted Rivers a judgment of acquittal as to Count 1, and at the conclusion of trial,

the jury convicted Rivers of Count 2. The court sentenced Rivers to 180 months’

imprisonment and 5 years’ supervised release. Meanwhile, as Rivers’s case was

proceeding through direct appeal under newly appointed counsel, McComb died.

McComb’s widow has indicated that she is unable to locate any of his case files.

       After the rejection of his direct appeal, Rivers filed a timely motion to vacate

his sentence under 28 U.S.C. § 2255. This motion alleged in relevant part 1 that his

trial counsel, McComb, had provided ineffective assistance of counsel in two

ways. First, he had failed to review the government’s evidence with Rivers prior to

trial (“Ground 3”). According to his motion, had Rivers understood the weight of

the government’s evidence against him, he would have entered a guilty plea rather

than proceeding to trial and thus would have been eligible for an acceptance-of-

responsibility reduction and the safety valve. Therefore, Rivers claimed, he had


1
       Rivers also alleged originally that McComb was ineffective by failing to investigate and
move to suppress wiretap evidence and by failing to move for a directed verdict regarding a
portion of Count 2. Those claims are outside the scope of the certificate of appealability
(“COA”) and, as such, are not at issue in this appeal. See Murray v. United States, 145 F.3d
1249, 1250–51 (11th Cir. 1998) (limiting appellate review to the issues specified in the COA for
appeals brought by unsuccessful §§ 2254 and 2255 petitioners).


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been prejudiced by McComb’s performance. See Strickland v. Washington, 466

U.S. 668, 687 (1984). Second, McComb had failed to advise Rivers about whether

he should plead guilty or proceed to trial (“Ground 4”). Here, Rivers alleged that

McComb had in fact told him that the government had no evidence against him,

and that McComb failed both to develop an opinion about whether Rivers should

plead guilty and to express that opinion to him. Had McComb advised him to

plead, Rivers alleged, he would have pled guilty and received the benefit of a

three-level reduction for acceptance of responsibility, and therefore the failure to

so advise him rendered his representation constitutionally ineffective.

      The magistrate judge held an evidentiary hearing on August 25, 2011, on

Rivers’s ineffective assistance claims. Rivers testified that, after a brief

introduction when McComb became his lawyer, he only ever spoke with McComb

again the day before trial, when McComb instructed him on the phone to come to

court the following day. Rivers and McComb met for the first time at the

courthouse the day they began jury selection. Rivers testified that he and McComb

had never discussed any of the following: evidence, discovery materials, motions,

witnesses, exhibits, defense witnesses, defense exhibits, expert witnesses, the

Sentencing Guidelines, his criminal record, the indictment, the jury instructions,

the elements of the charges against him, or the wiretap recordings. He also testified

that he never spoke with McComb about the possibility of pleading guilty or



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whether he should have done so. At the same hearing, the government admitted

that it had nothing with which to refute Rivers’s testimony about his alleged lack

of communication with McComb.

       The magistrate judge issued a report and recommendation concluding that,

assuming Rivers could prove deficiency, he had not established that he had been

prejudiced by counsel’s alleged deficiencies. 2 Rivers objected, arguing that he had

shown that with proper advice, he would have pled guilty, accepted responsibility,

and sought a more lenient sentence from the court. The district court agreed with

Rivers, finding that there was a reasonable probability that but for counsel’s

alleged deficiency, the sentence would have been reduced. Therefore, the court

indicated that Rivers was entitled to § 2255 relief if he could satisfy the deficiency

prong of Strickland, and remanded the matter back to the magistrate judge for

consideration of deficient performance.

       On remand, the magistrate judge entered an order requiring the government

to respond to the district court’s concerns and address both prongs of Strickland. In

response, the government submitted a series of emails between the government,

McComb, and Valentin Rodriguez, counsel for codefendant Jones, in which the

2
         See Strickland, 466 U.S. at 687 (“A convicted defendant’s claim that counsel’s assistance
was so defective as to require reversal of a conviction or death sentence has two components.
First, the defendant must show that counsel’s performance was deficient. This requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”).


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government had requested the defendants to enter into several evidentiary

stipulations prior to trial. In response, Rodriguez had stated that he was meeting

with McComb to discuss the stipulation issues, and McComb had stated that he

was “trying to get [Rivers] to accept a plea in this matter.”

       In the resulting report and recommendation, the magistrate judge determined

that Rivers’s testimony at the evidentiary hearing was credible. Accordingly, the

magistrate judge concluded that McComb had not conveyed a plea offer to Rivers

or discussed with him the relative advantages of one, and therefore that McComb

had provided deficient performance. The government objected, requesting that the

district court reopen the evidentiary hearing 3 to allow relevant testimony that

would counter Rivers’s testimony, which the court did.

       At the second evidentiary hearing, which took place on August 31, 2012,

Rivers chose not to present any additional testimony and stated that he intended to

rely on his testimony from the earlier evidentiary hearing before the magistrate

judge. The district court said that it wanted Rivers to testify again so it could make

a credibility finding based on testimony the district court judge personally

observed, but Rivers declined and stated that the district court could determine his

credibility based on the transcript of his previous testimony. The district court then


3
        Under 28 U.S.C. § 636(b)(1), a district court judge “shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made. . . . The judge may also receive further evidence . . . .”


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asked for Rivers’s consent to make credibility determinations based on his review

of the transcript, “in conjunction with all the other evidence,” and counsel replied,

“Absolutely. You’re the Judge.”

      The government then called Rodriguez to testify. According to his

testimony, Rodriguez met with Jones, McComb, and Rivers at the courthouse

before a May 23, 2007, hearing on the admissibility of wiretap evidence.

Rodriguez described that day as “a day to get everything organized, in a way, and

to discuss the case,” because as he remembered it, all the defendants were present

at that hearing. He stated that it was “one of the first real intense meetings that

[they] had regarding the plea agreements,” and that he discussed plea agreements

with both McComb and Rivers at that meeting. Rodriguez also testified that he

tried to convince Jones to plead guilty, but that Rivers repeatedly instructed Jones

not to accept a plea, no matter what.

      The government asked Rodriguez if he knew when, relative to that meeting,

McComb had communicated with Rivers about plea agreements, and Rivers

objected based on hearsay. The district court overruled the objection under Federal

Rule of Evidence 807, the residual exception to the hearsay rules, concluding that

the hearsay statements had the required “circumstantial guarantees of

trustworthiness”:

      I believe Mr. Rodriguez, as an officer of the Court, would not proffer
      any false testimony to me about what occurred. This is a meeting that

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      was very critical to his client, and his communications with Mr.
      McComb relative to Mr. Rivers pleading guilty were very critical to
      his client. What was said in those types of communications, those
      conversations, have circumstantial guarantees of trustworthiness.

The district court also determined that the statements satisfied the other

requirements of Rule 807 because they were offered into evidence as material

facts, they were more probative on the point for which they were offered than any

other evidence the government could obtain through reasonable efforts, and in light

of the fact that McComb was dead and unable to testify in this matter, it would

serve the interests of justice for the court to have this evidence available to it.

      Responding to the government’s question, Rodriguez testified that he had

spoken with McComb about his conversations with Rivers regarding the plea

agreement offered by the government, and that McComb told him that he had

provided the discovery materials to Rivers, repeatedly reviewed the evidence with

him, and discussed plea agreements with him. He also testified that McComb

stated that he was sorry, but Rivers was not going to plead guilty.

      When asked if he could be mistaken as to whether Rivers and Jones were at

the suppression hearing, Rodriguez testified that he remembered being in the room

with Rivers, McComb, and Jones. The court commented that the record indicated

that the only defendant present at the suppression hearing was a different

codefendant, and Rodriguez noted that he could “see it like yesterday, the meeting

in the room at a pretrial hearing.”

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      On cross-examination, Rodriguez concluded — after looking over the court

minutes and transcript from the May 23, 2007, hearing — that the court had

waived the defendants’ presence from the suppression hearing. He speculated that

the meeting he remembered might have occurred before a different hearing, but

reemphasized that the meeting did happen — even noting that he specifically

remembered the red chairs in the room.

      Ultimately, the district court denied Rivers’s § 2255 motion. In its order, the

court stated that it had overruled the hearsay objection to Rodriguez’s testimony

concerning his conversations with McComb based on Rule 807 and, in addition to

the reasons provided at the evidentiary hearing, found in a footnote that McComb’s

“statements had equivalent circumstantial guarantees of trustworthiness because

the statements” were made to a codefendant’s counsel and “[f]rank and forthright

communication between counsel for co-defendants is expected when they are

planning pretrial strategy.” The court found Rodriguez’s testimony “credible and

consistent with common sense,” and Rivers’s testimony “incredible and

perjurious,” because it “strains credulity for this Court to believe that an

experienced and competent criminal defense attorney such as Mr. McComb would

not have fully discussed the discovery material and a government plea offer with

his client before trial.” Accordingly, the district court found that Rivers did receive




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effective representation, denied the § 2255 motion, and declined to grant a

certificate of appealability (“COA”).

       Rivers filed a timely notice of appeal and this Court granted him a COA on

one issue: whether the district court impermissibly considered and relied upon the

hearsay testimony of Valentin Rodriguez, pursuant to Federal Rule of Evidence

807, when it concluded that Rivers’s counsel was not constitutionally deficient for

allegedly failing to advise Rivers about the government’s discovery materials and

plea offer.

                                                 II.

       Federal Rule of Evidence 807 — the residual exception to the hearsay

rules — reads in relevant part 4:

       (a) In General. Under the following circumstances, a hearsay
       statement is not excluded by the rule against hearsay even if the
       statement is not specifically covered by a hearsay exception in Rule
       803 or 804:
             (1) the statement has equivalent circumstantial guarantees of
             trustworthiness;
4
       Rule 807 also contains a notice requirement:

       (b) Notice. The statement is admissible only if, before the trial or hearing, the
       proponent gives an adverse party reasonable notice of the intent to offer the
       statement and its particulars, including the declarant’s name and address, so that
       the party has a fair opportunity to meet it.

         The parties do not address this issue, but it is clear from the record that Rivers was aware
of the possibility of Rodriguez’s testimony: Rivers filed a motion on August 13, 2012, noting
that the government had announced that it may call Rodriguez as a witness and moving for his
testimony to be inadmissible under attorney-client privilege. It is not clear whether Rivers was
aware of the particulars of Rodriguez’s testimony — specifically, the fact that Rodriguez planned
to testify about McComb’s statements to him.


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             (2) it is offered as evidence of a material fact;
             (3) it is more probative on the point for which it is offered than
             any other evidence that the proponent can obtain through
             reasonable efforts; and
             (4) admitting it will best serve the purposes of these rules and
             the interests of justice.

      “Congress intended the residual hearsay exception to be used very rarely,

and only in exceptional circumstances,” United Techs. Corp. v. Mazer, 556 F.3d

1260, 1279 (11th Cir. 2009) (quoting United States v. Ingram, 501 F.3d 963, 967

(8th Cir. 2007), vacated on other grounds, 555 U.S. 1132 (2009)) (internal

quotation marks omitted), and it “appl[ies] only when certain exceptional

guarantees of trustworthiness exist and when high degrees of probativeness and

necessity are present,” id. (alteration in original) (quoting United States v. Wright,

363 F.3d 237, 245 (3d Cir. 2004)) (internal quotation marks omitted).

      A district court’s decision to admit hearsay evidence pursuant to Rule 807 is

reviewed for an abuse of discretion. See United States v. Rodriguez, 218 F.3d

1243, 1246 (11th Cir. 2000). “An abuse of discretion occurs where ‘the district

court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion

of law, or an improper application of law to fact.’” United States v. Jayyousi, 657

F. 3d 1085, 1113 (11th Cir. 2011) (quoting United States v. Westry, 524 F.3d

1198, 1214 (11th Cir. 2008)). We are “particularly hesitant to overturn a trial

court’s admissibility ruling under the residual hearsay exception absent a ‘definite

and firm conviction that the court made a clear error of judgment in the conclusion

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it reached based upon a weighing of the relevant factors.’” Balogh’s of Coral

Gables, Inc. v. Getz, 798 F.2d 1356, 1358 (11th Cir. 1986) (quoting Page v. Barko

Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982)).

                                               A.

       On appeal, Rivers argues that the district court erred in admitting

codefendant counsel Valentin Rodriguez’s hearsay testimony under Rule 807

because his statements lacked the required guarantees of trustworthiness. 5 Rivers

notes that parts of Rodriguez’s testimony — in particular, his claim about the

timing of the critical pre-hearing meeting — are verifiably incorrect, and argues

that as a result, Rodriguez’s testimony is not trustworthy and was improperly

admitted under Rule 807. In response, the government argues that Rodriguez’s

confusion about the date of the pre-hearing meeting does not negate or discredit the

remainder of his testimony, including the fact that the meeting still occurred, albeit

on some other date. The district court, the government says, therefore properly

credited Rodriguez’s testimony and admitted the hearsay statements under Rule

807.

       Both Rivers and the government focus on Rodriguez’s credibility in their

analyses of the Rule 807 issue, particularly in regard to the accuracy of his
5
        Rivers also argues that Rodriguez’s testimony was protected by attorney-client privilege
and thus should have been inadmissible. Whether or not this claim has merit, it does not fall
within the scope of the COA, and therefore this Court will not consider it. See McKay v. United
States, 657 F.3d 1190, 1195 (11th Cir. 2011) (“[T]he scope of our review of an unsuccessful
§ 2255 motion is limited to the issues enumerated in the COA.”).


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testimony. Rivers says that Rodriguez’s “recollection of events is clearly

contradicted by the court record,” and argues that, as a result, his testimony cannot

be trusted or credited. The government argues that because Rodriguez corrected his

mistaken initial recollection about the pre-hearing meeting with Rivers and Jones,

the deferential standard requires the Court of Appeals to uphold the district court’s

credibility findings in this case. In reply, Rivers argues that Rodriguez’s testimony

was “at a minimum exceedingly improbable,” and therefore the Court of Appeals

should reverse the district court’s finding as to Rodriguez’s credibility.

      In fact, the district court itself seemed to elide the issue of Rodriguez’s

credibility with that of Rule 807’s “circumstantial guarantees of trustworthiness,”

saying in the evidentiary hearing about its decision to admit the testimony:

           I’m going to overrule the objection based upon Rule of Evidence
      807, which is the residual exception to the hearsay rule, which says,
      “Under the following circumstances a hearsay statement is not
      excluded by the rule against hearsay: One, the statement has
      equivalent circumstantial guarantees of trustworthiness.”

             I believe Mr. Rodriguez, as an officer of the Court, would not
      proffer any false testimony to me about what occurred. This is a
      meeting that was very critical to his client, and his communications
      with Mr. McComb relative to Mr. Rivers pleading guilty were very
      critical to his client. What was said in those types of communications,
      those      conversations,    have     circumstantial    guarantees   of
      trustworthiness.

      However, contrary to both the arguments of the parties and the primary

focus of the district court, Rodriguez’s credibility is not the heart of the issue under



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Rule 807. Rather, a Rule 807 analysis must consider whether the declarant’s

original statements now being offered in court have guarantees of trustworthiness

given the circumstances under which they were first made. The fundamental

question, therefore, is not the trustworthiness of the witness reciting the statements

in court, but of the declarant who originally made the statements. 6


6
        We note that at least one Circuit — the Third — does consider “the reliability of the
reporting of the hearsay by the witness,” in addition to the circumstantial guarantees of
trustworthiness of the declarant’s original statements, in determining whether testimony may be
admitted under Rule 807. United States v. Bailey, 581 F.2d 341, 349 (3d Cir. 1978). The Seventh
Circuit, on the other hand, says the opposite:

       In our view . . . the reliability of the witness’ testimony that the hearsay statement
       was in fact made is not a factor to be considered in deciding its admissibility. We
       recognize that the Third Circuit said otherwise in the Bailey case, 581 F.2d at 349.
       But, as we have already noted, the circumstantial guarantees of trustworthiness
       necessary under the residual exception are to be “equivalent” to the guarantees
       that justify the specific exceptions. Those guarantees relate solely to the
       trustworthiness of the hearsay statement itself. The specific exceptions to the
       hearsay rule are not justified by any circumstantial guarantee that the witness who
       reports the statement will do so accurately and truthfully. That witness can be
       cross-examined and his credibility thus tested in the same way as that of any other
       witness. It is the hearsay declarant, not the witness who reports the hearsay, who
       cannot be cross-examined.

Huff v. White Motor Corp., 609 F.2d 286, 293 (7th Cir. 1979) (citation omitted).

        Because until now this Circuit has not explicitly discussed the importance in the Rule 807
context of evaluating the circumstantial guarantees of trustworthiness of a declarant’s original
statements, we have not determined whether courts should also consider a witness’s reliability in
a Rule 807 analysis. We came closest in Herzog v. Castle Rock Entm’t, 193 F.3d 1241 (11th Cir.
1999), in which we summarily affirmed a district court opinion that briefly addressed a Rule 807
issue. In that case, one party wished to have a witness testify about statements made by a since-
deceased individual and the district court determined that the testimony would be inadmissible
under Rule 807 because there would be no way “to verify the accuracy of the testimony or of the
out-of-court statements that the testimony reports, and the reliability of the testimony cannot be
taken for granted.” Id. at 1254–55. As the district court explained, the alleged conversations were
five years beforehand, and the testimony about them was “vague, not precise and
knowledgeable.” Id. at 1254. But the district court failed to consider the trustworthiness of the
statements as originally made.


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       For example, in United States v. Rouco, 765 F.2d 983 (11th Cir. 1985), the

defendant argued that the district court erred by admitting testimony from the

supervisor of a since-deceased federal agent regarding the agent’s acquisition of

evidence. Id. at 993. We considered not whether the supervisor’s testimony about

the agent’s story contained guarantees of trustworthiness, but whether the original

statements themselves, as made by the deceased agent, contained such guarantees.

See id. at 993–94. Similarly, in a number of our cases concerning the Rule 807

admissibility of grand jury testimony at trial, the issue is quite clearly whether the

statements as originally made to the grand jury have guarantees of trustworthiness,

and not whether what amounts to repeating the statements at trial (the equivalent of

Rodriguez recounting his conversations with McComb) is trustworthy. See Mazer,

556 F.3d at 1279; United States v. Lang, 904 F.2d 618, 623 (11th Cir. 1990);

United States v. Fernandez, 892 F.2d 976, 980–83 (11th Cir. 1989).

       Moreover, the language of Rule 807 itself makes clear that when it comes to

trustworthiness, its primary concern is that of the declarant. The rule asks not

simply for circumstantial guarantees of trustworthiness, but for guarantees that are

equivalent in significance to the specific hearsay exceptions enumerated in Federal




       At any rate, because as set forth below we find McComb’s statements to be insufficiently
trustworthy when made, we need not decide here whether even to consider the reliability of
Rodriguez’s testimony about those statements, much less whether we do find it reliable.


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Rules of Evidence 803 7 and 804. 8 Therefore, such guarantees must be “equivalent

to cross-examined former testimony, statements under a belief of impending death,

statements against interest, and statements of personal or family history.”

Fernandez, 892 F.2d at 980. These categories of hearsay “have attributes of

trustworthiness not possessed by the general run of hearsay statements that tip the

balance in favor of introducing the information if the declarant is unavailable to

testify.” Id. And they are all considered sufficiently trustworthy not because of the

credibility of the witness reporting them in court, but because of the circumstances

under which they were originally made. For example, a dying declaration is

trustworthy enough to admit as evidence in certain types of cases because at the

time the declaration is made, the declarant believes that she is about to die and the

statement concerns the cause of her death — in other words, because of the

particular circumstances surrounding the original utterance of the statement. By

requiring hearsay admitted under the residual exception to have circumstantial

guarantees of trustworthiness that are like the guarantees of the specific exceptions,

Rule 807 is clearly concerned, first and foremost, about whether the declarant

originally made the statements under circumstances that render the statements

more trustworthy.

7
       Rule 803 is entitled “Exceptions to the Rule Against Hearsay — Regardless of Whether
the Declarant Is Available as a Witness.”
8
      Rule 804 is entitled “Exceptions to the Rule Against Hearsay — When the Declarant Is
Unavailable as a Witness.”


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      The question, thus, that we must first answer in this case is not whether

Rodriguez was likely telling the truth in court, as the district court suggested, but

whether the hearsay statements allegedly made by McComb to Rodriguez out of

court contained circumstantial guarantees of trustworthiness that are equivalent to

the guarantees contained in the specific hearsay exceptions.

      Courts look to a number of different factors when determining whether an

out-of-court declaration is sufficiently trustworthy for the purposes of Rule 807.

The Seventh Circuit, for example, considers factors like “the probable motivation

of the declarant in making the statement,” “the circumstances under which [the

statement] was made,” “the knowledge and qualifications of the declarant,” and the

existence of corroborating evidence, among others. United States v. Hall, 165 F.3d

1095, 1110–11 (7th Cir. 1999) (quoting Cook v. Hoppin, 783 F.2d 684, 691 (7th

Cir. 1986)) (internal quotation marks omitted). Other courts evaluate “not only the

facts corroborating the veracity of the statement, but also the circumstances in

which the declarant made the statement and the incentive he had to speak truthfully

or falsely,” United States v. Bailey, 581 F.2d 341, 349 (3d Cir. 1978); “the totality

of the circumstances surrounding the making of the statement and those rendering

the declarant particularly worthy of belief,” United States v. Barrett, 8 F.3d 1296,

1300 (8th Cir. 1993); whether the declarant had “clear motivation” to lie or

mislead, United States v. McCraney, 612 F.3d 1057, 1062 (8th Cir. 2010); and



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whether the statement concerned facts of which the declarant had personal

knowledge, United States v. Earles, 113 F.3d 796, 800 (8th Cir. 1997).

      In this case, though the district court focused on and offered several reasons

to find Rodriguez’s testimony reliable, the order denying Rivers’s § 2255 motion

gave only one reason to find McComb’s original statements to Rodriguez

sufficiently trustworthy: “[McComb’s] statements were being made to counsel for

one of Petitioner’s co-defendants.” According to the district court, such statements

are trustworthy because “[f]rank and forthright communication between counsel

for co-defendants is expected when they are planning pretrial strategy, which was

the case here.”

      Without more, this reasoning is insufficient to establish the equivalent

circumstantial guarantees of trustworthiness that Rule 807 requires. Most notably,

we do not believe that McComb’s statements are believable merely because he

uttered them to counsel for his client’s codefendant. If McComb was providing

constitutionally effective assistance of counsel, we agree with the district court that

he would have had every incentive to tell the truth to Rodriguez. But if he was

failing as completely as Rivers alleges, he would have had every incentive to

dissimulate. In any event, to declare that statements made by an attorney to counsel

for a codefendant are inherently trustworthy simply because they are made by a

lawyer during the course of representing a criminal defendant is to say that even an



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attorney performing incompetently would not lie about it. Under the circumstances

here, this Court will not assume that much. Ultimately, we do not believe that any

amount of trustworthiness in the relevant circumstances here is equivalent to that

of the specific hearsay exceptions, as required by Rule 807.

      We also note the near absence of corroborating evidence for these

statements. The existence of corroborating evidence does not necessarily make

hearsay evidence admissible under Rule 807. Rather, “corroborating evidence must

be extraordinarily strong before it will render the hearsay evidence sufficiently

trustworthy to justify its admission.” Lang, 904 F.2d at 624. In this case, aside

from Rodriguez’s own testimony, the only piece of corroborating evidence that

speaks to the question of whether McComb consulted with Rivers is McComb’s

email to the government indicating that he was “trying to get [Rivers] to accept a

plea in this matter.” But this evidence does not firmly establish the fact that

McComb had spoken to Rivers; McComb’s statement could well have been

anticipatory, for example. Such corroborating evidence does not rise to the level of

“extraordinarily strong.”




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       Therefore, we hold that McComb’s statements to Rodriguez lack equivalent

circumstantial guarantees of trustworthiness and that it was error for the district

court to admit them under Federal Rule of Evidence 807. 9

                                                B.

       Though we find that the district court erred by admitting Rodriguez’s

testimony about McComb’s statements to him, our inquiry does not end there.

Because Rivers preserved his objection to the admission of that testimony, we

review the district court’s decision for harmless error. See United States v. Baker,

432 F.3d 1189, 1202 (11th Cir. 2005); see also United States v. Hands, 184 F.3d

1322, 1329 (11th Cir. 1999) (“An erroneous evidentiary ruling will result in

reversal only if the resulting error was not harmless.”). An error is harmless if it

“had no substantial influence on the outcome[] and sufficient evidence uninfected

by error supports the [decision].” United States v. Hawkins, 905 F.2d 1489, 1493

(11th Cir. 1990). An error is not harmless if “there is a reasonable likelihood that

[it] affected the defendant’s substantial rights.” Id. Therefore, we must determine

whether even without the admission of Rodriguez’s testimony about his


9
        Though we need not consider the other three requirements of Rule 807, it is clear that the
hearsay statements at issue do meet them. First, the statements are offered as evidence of a
material fact, as they speak to the ultimate questions of whether McComb actually reviewed
evidence with Rivers and advised him about his case. Second, the statements are more probative
on the point for which they are offered than any other reasonably obtained evidence, as
McComb’s case files are apparently unavailable. Third, admitting the hearsay statements would
provide the court with informative evidence that is unavailable through other means and thus
would serve the purposes of the Federal Rules of Evidence and the interests of justice.


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conversations with McComb, there is sufficient evidence to support the district

court’s decision to deny Rivers’s § 2255 motion.

         In making that determination, we note that Rivers bears the burden to prove

the claims in his § 2255 motion. LeCroy v. United States, 739 F.3d 1297, 1321

(11th Cir. 2014) (“[O]n a § 2255 petition[, the burden of proof] belongs to the

petitioner.”). The only evidence Rivers has offered in support of his petition is his

testimony at the first evidentiary hearing, which the district court did not credit.

Therefore, if we uphold the district court’s determination that Rivers was not a

credible witness, his motion must still fail because he has not met his burden of

proof.

         “In a 28 U.S.C. § 2255 proceeding, . . . [w]e allot ‘substantial deference to

the factfinder . . . in reaching credibility determinations with respect to witness

testimony.’” United States v. Devine, 520 F.3d 1286, 1287 (11th Cir. 2008) (third

alteration in original) (quoting United States v. McPhee, 336 F.3d 1269, 1275

(11th Cir. 2003)). Generally, we refuse to disturb a credibility determination unless

it is “so inconsistent or improbable on its face that no reasonable factfinder could

accept it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002)

(quoting United States v. Eddy, 8 F.3d 577, 580 (7th Cir. 1993)) (internal quotation

marks omitted). Therefore, we will uphold the district court’s determination that




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Rodriguez was credible and Rivers was not unless the court’s “understanding of

the facts appears to be ‘unbelievable.’” Id.

      It is evident from the district court’s decision on Rivers’s § 2255 petition

that its determination about Rivers’s credibility was dependent upon its

determination about Rodriguez’s credibility, because with the testimony of these

two witnesses, the district court was confronted with two mutually exclusive

versions of events. The district court said that “[a]fter considering all of the

evidence,” it found Rodriguez’s testimony “credible and consistent with common

sense,” while Rivers’s version of events “ma[de] no sense and strain[ed]

credulity.” Furthermore, in noting that the magistrate judge did find Rivers to be a

credible witness, the district court explained that it “had a distinct advantage over

the Magistrate Judge in arriving at the truth in this case” because it “had the benefit

of an attorney eye-witness who was able to refute the Petitioner’s previously

uncontroverted testimony.” It appears that, in effect, the district court examined

Rivers’s and Rodriguez’s competing versions of events and concluded that

Rodriguez’s story was believable, and Rivers’s was not. We will not reverse this

determination, because we defer to the district court’s finding that Rodriguez was a

credible witness — which in turn supports the district court’s finding that Rivers

was not a credible witness.




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       The only testimony admitted under Rule 807 was that specifically regarding

McComb’s statements to Rodriguez. That was not the full extent of Rodriguez’s

testimony, however; Rodriguez also testified that at several meetings with Jones,

McComb, and Rivers, he discussed decisions about a plea with both Rivers and

McComb and reminded Rivers of the substantial amount of evidence against him,

and that Rodriguez and McComb discussed with their clients the terms of the

existing plea offer and the benefits of accepting responsibility. Rodriguez also

testified that, at one of those meetings, Rivers declared that he would not accept

any plea agreement or plead guilty. All of these statements, which are not

inadmissible under our decision today, are evidence that Rivers was aware of the

government’s evidence against him and the existence and terms of a plea offer.

They are also evidence that Rivers did meet and speak with McComb between

their initial introduction and trial.

       These statements directly contradict Rivers’s testimony — impeaching him,

in effect, if they are believed — because Rivers testified that he never even spoke

with McComb between their first and only phone call and the trial. The district

court actually observed Rodriguez’s testimony and found it believable. Of course,

the magistrate judge observed Rivers’s testimony and found it believable. But as

the district court noted, Rivers’s testimony was then uncontroverted. In

comparison, the district court was offered a competing story from a witness it



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observed, giving it a reason to believe that Rivers was not credible. Under these

circumstances, therefore, the district court was entitled to discredit Rivers’s

testimony. See, e.g., Siewe v. Gonzales, 480 F.3d 160, 171 (2d Cir. 2007) (calling

falsus in uno, falsus in omnibus — the principle that a witness who willfully

testifies falsely to any material matter may be discredited generally — “a natural

and instinctive tool of the factfinder, like a carpenter’s hammer or plumber’s

wrench”).

      Furthermore, we are unpersuaded by Rivers’s argument that Rodriguez

could not have been a credible witness because he was wrong about the timing of

the meetings he described in his testimony. We do not agree with Rivers that any

inaccuracies in Rodriguez’s testimony as to the times and dates of these meetings

effectively negate his testimony that the meetings occurred at some point; the fact

that Rodriguez could not remember the exact dates of events that occurred five

years before his testimony did not require the district court to accept the

proposition that the events did not occur at all. Therefore, we do not believe that

Rodriguez’s testimony was “unbelievable,” Ramirez-Chilel, 289 F.3d at 749, and

we defer to the credibility determination of the district court, which actually

observed his testimony.

      Accordingly, even without the portion of Rodriguez’s testimony that was

improperly admitted under Rule 807, the remainder of his testimony still gives the



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district court reason to believe that Rivers did not tell the truth before the

magistrate judge, and thus to discredit Rivers’s testimony. We conclude that the

district court’s credibility findings were neither inconsistent nor improbable,

Ramirez-Chilel, 289 F.3d at 749, and we will not reverse them.

      Because Rivers bears the burden to prove the claims in his § 2255 motion,

the district court’s finding that Rivers was not a credible witness makes its Rule

807 error a harmless one. Given that Rivers’s motion relies solely on his

discredited testimony, he has failed to present evidence in support of his claims.

Therefore, even without Rodriguez’s testimony about statements McComb made to

him — the admission of which this Court finds to be in error — Rivers has not met

his burden of proof and his § 2255 motion must still be denied.

                                           III.

      For the foregoing reasons, the judgment of the district court denying

Rivers’s motion to vacate pursuant to 28 U.S.C. § 2255 will be

      AFFIRMED.




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