     17-2348-cr
     USA v. Ojudun



 1                          UNITED STATES COURT OF APPEALS

 2                                FOR THE SECOND CIRCUIT

 3                                               ------

 4                                       August Term, 2018

 5   (Submitted: October 24, 2018                                   Decided: February 8, 2019)

 6                                     Docket No. 17-2348-cr

 7   _________________________________________________________

 8   UNITED STATES OF AMERICA,

 9                                                      Appellee,

10                                      - v. -

11   OLUWOLE OJUDUN,

12                                          Defendant-Appellant.*
13   _________________________________________________________

14   Before: KATZMANN, Chief Judge, KEARSE, Circuit Judge, MEYER, District Judge**.




     *    The Clerk of Court is directed to amend the official caption to conform with the
          above.

     **   Judge Jeffrey A. Meyer, of the United States District Court for the District of
          Connecticut, sitting by designation.
 1                Appeal from a judgment of the United States District Court for the

 2   Southern District of New York, Katherine B. Forrest, then-Judge, revoking defendant

 3   Ojudun's supervised release--imposed following his prior federal conviction for

 4   conspiracy to commit bank fraud--on the grounds that while on such release he, inter

 5   alia, committed two financial crimes in violation of New Jersey law and associated

 6   with a known felon and thereby violated the conditions of release, and ordering him

 7   to serve 30 months' imprisonment, to be followed by two years of supervised release.

 8   On appeal, Ojudun contends principally that the court erred (1) in denying his motion

 9   to suppress, on Fourth Amendment grounds, evidence resulting from New Jersey

10   police officers' stop of the vehicle in which he was a passenger, and (2) in admitting,

11   over his hearsay objection, evidence of postarrest statements made by the vehicle's

12   driver as statements against the interest of the driver. We find no merit in Ojudun's

13   Fourth Amendment challenges to the stop and search of the vehicle. However, we

14   conclude that evidence of statements by the driver that incriminated Ojudun without

15   incriminating the driver did not fall within the hearsay exception provided by Rule

16   804(b)(3) of the Federal Rules of Evidence for statements against the interest of the

17   declarant, and that the court did not perform the analyses required under Rule

18   804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal Procedure,


                                               2
 1   in order to determine the admissibility of the declarant's other statements. We thus

 2   vacate the judgment and remand for further proceedings.

 3                Vacated and remanded.

 4                      GEOFFREY S. BERMAN, United States Attorney for the
 5                          Southern District of New York, New York, New York
 6                          (Daniel S. Noble, Anna M. Skotko, Assistant United
 7                          States Attorneys, New York, New York, of counsel),
 8                          for Appellee.

 9                      BENNO & ASSOCIATES, New York, New York (Ameer
10                          Benno, New York, New York, of counsel; Adam D.
11                          Perlmutter, Perlmutter & McGuinness, New York,
12                          New York, of counsel on the initial brief), for
13                          Defendant-Appellant.




14   KEARSE, Circuit Judge:

15                Defendant Oluwole Ojudun appeals from a judgment of the United

16   States District Court for the Southern District of New York, Katherine B. Forrest,

17   then-Judge, revoking his supervised release--imposed following his prior conviction

18   for conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349--on

19   the grounds that Ojudun violated standard conditions of release by (1) committing

20   forgery in violation of New Jersey law, (2) committing theft by deception in violation

21   of New Jersey law, (3) leaving the judicial jurisdiction of his supervision without


                                               3
 1   permission, and (4) associating with a known felon. The court ordered Ojudun to

 2   serve 30 months' imprisonment, followed by two years of supervised release, to be

 3   served consecutively to any state sentence that may be imposed. On appeal, Ojudun

 4   challenges his convictions on charges (1), (2), and (4), contending principally that the

 5   court erred (a) in denying his motion to suppress, on Fourth Amendment grounds,

 6   evidence resulting from the New Jersey police officers' stop of the vehicle in which

 7   he was a passenger, and (b) in admitting, over his motion to preclude as hearsay,

 8   evidence of postarrest statements made about Ojudun by the vehicle's driver. For the

 9   reasons that follow, we reject Ojudun's challenges to the officers' stop of the vehicle

10   and the ensuing seizure of evidence. However, we conclude that statements of the

11   driver that incriminated Ojudun without incriminating the driver were not properly,

12   under Rule 804(b)(3) of the Federal Rules of Evidence, ruled statements against the

13   interest of the driver, and that the district court did not perform the analyses required

14   under Rule 804(b)(3)(B) or under Rule 32.1(b)(2)(C) of the Federal Rules of Criminal

15   Procedure, in order to determine the admissibility of the declarant's other statements.

16   We thus vacate the judgment and remand for further proceedings.




                                                4
 1                                      I. BACKGROUND




 2                The present proceeding against Ojudun alleging his violations of

 3   supervised release ("VOSR") arises from the January 12, 2017 stop by local police

 4   officers in Summit, New Jersey, of a car (the "Car") driven by Anthony Gray, in which

 5   Ojudun was a passenger. Ojudun moved to suppress any evidence resulting from the

 6   stop, contending that the stop, the ensuing search of the Car, and his arrest, violated

 7   the Fourth Amendment. As part of Ojudun's VOSR hearing, which was held in April

 8   and June 2017, the stop and its aftermath were described principally in a suppression

 9   hearing at which the only witness was Detective Christopher Medina of the Summit

10   Police Department ("SPD"), who had participated in the stop, the search, and the

11   subsequent arrests of Ojudun, Gray, and Jerry Cesaro, the Car's other passenger (see

12   Part I.B. below). Medina also described his postarrest interview of Gray. That

13   testimony and a videotape of the interview were introduced over Ojudun's hearsay

14   objection (see Part I.C. below).

15                Following the hearing, the district court, inter alia, found the testimony

16   of Medina to be credible and found that his observations of the Car and Cesaro

17   provided reasonable suspicion sufficient to justify the stop of the Car. Ojudun has not


                                               5
 1   argued that any of the court's factual findings in this regard are clearly erroneous;

 2   rather, he challenges its conclusions of law as to the constitutionality of the stop of the

 3   Car and the ensuing search and seizures. He also challenges the court's ruling that

 4   Gray's hearsay statements were admissible under Fed. R. Evid. Rule 804(b)(3), the

 5   exception for statements that are contrary to the declarant's punitive interest.




 6   A. Ojudun's Prior Conviction

 7                Relevant events leading to Ojudun's prior conviction are not disputed

 8   and/or are matters of record. In 2011, the United States Postal Inspection Service

 9   began investigating a bank fraud scheme that involved deposits of counterfeit checks

10   at banks located in New York, New Jersey, and Connecticut.                 Some scheme

11   participants would open bank accounts using their own identities and would provide

12   their account information and personal identification numbers to other participants,

13   who would then deposit counterfeit checks into the accounts. Thereafter, participants

14   would obtain money from the accounts by withdrawing cash at Automated Teller

15   Machines ("ATMs"), or using debit cards at retail locations, or purchasing money

16   orders at United States Post Offices.




                                                 6
 1               Ojudun and Gray were among the participants in the scheme. Ojudun

 2   deposited counterfeit checks and withdrew cash from ATMs and local bank branches,

 3   and he recruited others to do so. Gray supplied scheme participants with counterfeit

 4   checks and drove them to various banks in order to cash them.

 5               In 2012, Gray, following his plea of guilty, was convicted of bank fraud.

 6   He was sentenced principally to time served, plus three years of supervised release.

 7   In 2014, Ojudun was convicted, following his plea of guilty, of conspiracy to commit

 8   bank fraud. He was sentenced to 40 months' imprisonment, to be followed by three

 9   years of supervised release. Ojudun's three-year supervised-release term began upon

10   his release from prison in May 2016.




11   B. SPD's January 2017 Stop of the Car and Arrest of Ojudun

12               Medina's testimony at the suppression hearing included the following.




13         1. The Stop

14               Around noon on January 12, 2017, Medina and SPD Detective Sergeant

15   Mike Treiber (the "Officers") were driving in the center of Summit, a town in which

16   the vast majority of the cars were registered in New Jersey, when they noticed the


                                              7
 1   Car, a black BMW with New York license plates, drive about 100 feet past a Chase

 2   Bank branch and double park. (See Hearing Transcript, April 19, 2017 ("April Tr."),

 3   at 20-24.) A "disheveled looking" white male--later identified as Cesaro--whose gaunt

 4   face, dirty clothing, and general appearance were, in Medina's experience, "consistent

 5   with somebody who uses drugs" (id. at 24), exited the Car, "meander[ed]" toward the

 6   bank, walking diagonally in the street rather than crossing and using the sidewalk

 7   (Hearing Transcript, June 16, 2017 ("June Tr."), at 44; see id. at 50-51), and entered the

 8   rear door to the bank (see April Tr. 29). The Car drove off; the Officers, whose

 9   suspicions were aroused as to the possibility of bank fraud or narcotics trafficking,

10   promptly parked in the first parking spot in the bank's parking lot--one of several

11   available spaces--and watched the bank's rear entrance. They saw Cesaro exit the

12   bank, and at about the same time saw the Car reappear and again drive about 100 feet

13   past the bank, and stop. Cesaro, again walking diagonally in the street rather than

14   crossing to use the sidewalk, entered the Car, which drove off after remaining

15   stationary for some 30-60 seconds. (See id. at 28-31; June Tr. 55-58.)

16                The Officers followed for a time, then signaled the Car to pull over and

17   stop.




                                                 8
 1         2. The Questioning, the Search, and the Arrests

 2                After the Car stopped, Medina went to the passenger side, identified

 3   himself as an SPD detective, and asked the driver--Gray--for credentials. Gray

 4   produced a registration, an insurance card, and his driver's license, but as he was

 5   rummaging for the documents, Medina asked how the men had wound up in

 6   Summit; Gray responded that they had taken a wrong exit and had gotten lost trying

 7   to go to the mall in nearby Short Hills, New Jersey. (See April Tr. 36; June Tr. 78.)

 8   Medina then asked how they all knew each other; Gray said the front seat passenger--

 9   who was Ojudun--was his friend and that the back seat passenger was his "uncle."

10   (April Tr. 36.) But when Medina asked what Gray's uncle's name was, Gray just said

11   "What?" which Medina's training and experience caused him to view as a stalling

12   tactic--a view enhanced by Cesaro's appearance and his odd path to and from the

13   bank, as well as by the driver's failure to avail himself of any of the empty spaces in

14   the bank's parking lot or to stop in front of the bank to drop Cesaro off or pick him

15   up, instead of twice proceeding 100 feet past the bank. Upon Gray's apparently

16   evasive response, Medina told Cesaro to get out of the Car.

17                Medina took Cesaro to the rear of the Car and attempted to have him

18   place his hands on the rear of the Car. Cesaro instead resisted, kept one hand in his


                                                9
 1   pocket, and elbowed Medina in the ribs. Medina grabbed Cesaro and threw him to

 2   the ground. While subduing Cesaro, Medina saw the Car's brake lights flare and,

 3   fearing that the Car was about to either flee or back over him, yelled a warning to

 4   Treiber. Treiber pulled his pistol and pointed it toward Gray, telling him to turn off

 5   the engine, and summoned backup police officers.

 6                When more officers arrived a few minutes later, Treiber holstered his

 7   gun, and Gray and Ojudun were taken out of the Car. Cesaro was placed under

 8   arrest for assaulting Medina and was searched incident to that arrest. (See June

 9   Tr. 17.) In Cesaro's pockets, Medina found, inter alia, the remnants of a crack pipe that

10   had broken when Cesaro was taken to the ground; a credit card in the name of one

11   Frank Langendorf (see id. at 26); a New York State prison inmate identification card

12   bearing Cesaro's name and picture (see April Tr. 40-41); and a Pennsylvania driver's

13   license in Langendorf's name but bearing a picture of Cesaro (see id. at 41). One of the

14   backup SPD officers took a cell-phone photograph of Cesaro and went into the bank

15   with it to determine what Cesaro had done there.

16                Meanwhile, Medina asked Gray, as the Car's driver, whether he would

17   consent to a search of the Car. Neither Gray nor Ojudun had been arrested at this

18   point. (See June Tr. 17.) Gray gave his consent.


                                                10
 1                 When, in a normal speaking voice, Medina asked Gray for consent to

 2   search the Car, Ojudun--seated on the curb at the rear of the car--was no more than

 3   five feet away; and at no point did Ojudun reveal that the Car belonged to his

 4   girlfriend, or state that Gray was not authorized to drive it or to consent to its search,

 5   or say that Ojudun himself objected to the search. After Gray gave his consent,

 6   Medina, at the rear of the car to search the trunk, told Gray that he could have the

 7   search halted at any time if he chose. Ojudun, still seated on the curb at the rear of

 8   the Car, said nothing. (See June Tr. 18-19.) No one present suggested that Gray

 9   lacked authority to consent to a search. (See id. at 19; April Tr. 44-46.)

10                 In searching the Car, officers immediately found, on the seat that had

11   been occupied by Ojudun, an envelope containing two checks made payable to Frank

12   Langendorf. (See June Tr. 18.) In the meantime, the officer who had taken Cesaro's

13   picture to show to bank employees learned that Cesaro had cashed a $2,845.46 check

14   that was payable to Frank Langendorf and had displayed a Pennsylvania driver's

15   license in that name. (See id. at 19-21.) Based on the discovery of the two Langendorf

16   checks on Ojudun's seat and the information provided by the bank as to the

17   Langendorf check just cashed by Cesaro, the officers then "placed everybody under

18   arrest." (Id. at 24-25.)


                                                11
 1                When Ojudun was searched incident to his arrest, the officers found that

 2   he had cash in two pockets. In one, he had $233 in worn bills that looked to have

 3   been in circulation for some time. (See id. at 25-26.) In the other, he had fresh bills

 4   totaling exactly $2,845. (See id. at 25.)

 5                In the continuing search of the Car, officers found in the center console

 6   an envelope containing pedigree information for Langendorf. They also found a

 7   paper that contained "what looked to be practicing of signatures of Mr. [F]rank

 8   Langendorf which matched the endorsed portion of the check cashed by Mr. Cesaro."

 9   (June Tr. 26). SPD officers contacted the police department in nearby Millburn, New

10   Jersey, where Langendorf resided, and learned that he had several times complained

11   of identity theft. Millburn police arrived at the scene of the arrests in Summit and

12   confirmed that the occupants of the Car possessed information belonging to the real

13   Frank Langendorf.




14   C.     Gray's Postarrest Statements Incriminating Ojudun

15                At SPD headquarters, Medina conducted an interview of Gray, which

16   was videotaped. As described in greater detail in Part II.B. below, after initially

17   denying all knowledge of a fraud scheme, Gray eventually admitted that he had been


                                                 12
 1   promised $100 by Cesaro to drive Ojudun and Cesaro to the bank in order to cash a

 2   check. Gray said he saw Ojudun give the check to Cesaro to take into the bank.

 3                 Although Gray had waived his Miranda rights for the interview, it was

 4   established at the VOSR hearing that he would be unavailable to testify because of his

 5   assertion of his Fifth Amendment privilege against self-incrimination. (See June

 6   Tr. 4-5.) Ojudun moved to exclude any evidence as to Gray's statements as hearsay.




 7   D. The District Court's Rulings

 8          1. On the Challenge to the Stop

 9                 At the close of the June hearing, the district court denied Ojudun's

10   motion to suppress evidence seized as a result of the stop of the Car. It found

11   Medina's testimony to be "very credible" and concluded, based on the totality of the

12   circumstances, that the "accumulation of facts" resulting from the Officers'

13   observations of, inter alia, the unusual movements of the Car and of Cesaro--described

14   in Part I.B.1. above--provided a "very solid basis" for reasonable suspicion to support

15   the initial stop of the Car. (June Tr. 108). The court stated that its conclusion was "not

16   based upon one fact but based upon an accumulation of facts . . . in their totality . . . ."

17   (Id. at 108-09.)


                                                 13
 1         2. On the Challenge to the Search for Lack of Consent

 2                Just prior to the start of the suppression hearing, Ojudun filed a

 3   declaration challenging the government's position that there had been a valid consent

 4   to search the Car. Ojudun presented evidence that the Car belonged to his girlfriend,

 5   stated that he had not consented to the search, and offered to call his girlfriend to

 6   testify that she had not authorized Gray to drive her car or to consent to its search.

 7   The government conceded with respect to ownership and the fact that the owner and

 8   Ojudun did not give consent. (See April Tr. 13.) The district court noted that the

 9   question remained whether Gray had apparent authority to consent to a search and

10   whether it was reasonable for the Officers to believe he had authority.

11                After the suppression hearing, the court found "no information to

12   suggest that Gray was not in control of the vehicle and didn't have apparent authority

13   over [it]." (June Tr. at 110.) Even though Gray was not the Car's owner, the court

14   found that he had apparent authority and control over it, as he was driving it when

15   it was first seen stopping at the bank, when it had rounded the block and returned to

16   the bank, and when it was driven away after picking up Cesaro. Although Medina

17   could have learned by examining the Car's registration that it belonged to someone

18   other than Gray, the court concluded that that information would not have dispelled


                                               14
 1   the appearance that Gray was authorized to drive and exercise control over the Car.

 2   Gray gave Medina the requested documents (see, e.g., Ojudun brief on appeal at 22

 3   (the Car's registration "w[as] immediately handed over")) without providing any

 4   indication that he did not have permission or authority to use or exercise dominion

 5   over the Car. And when requested, he promptly gave his consent to the search,

 6   giving no indication that he lacked authority to do so.

 7                Ojudun himself during the events of January 12 made no mention of the

 8   fact that the Car was owned by his girlfriend; he did not in any way indicate that

 9   Gray lacked permission to drive the Car, or to exercise full authority over it, or to

10   consent to its search. The district court found that Ojudun "was in sufficient

11   proximity" to hear, inter alia, both Medina's request that Gray consent to a search and

12   Medina's ensuing statements to Gray that, even having given his consent, Gray could

13   have the search terminated at any time; the court found that "there was no[]

14   suggestion by . . . Ojudun or anyone that Mr. Gray did not have authority to consent

15   to search . . . ." (June Tr. 113.) The court concluded that Medina had reasonably relied

16   on Gray's apparent authority to consent to the vehicle search. (See id. at 110-13; June

17   23, 2017 Endorsement Order confirming oral ruling.)




                                               15
 1         3. The Admission of Gray's Postarrest Statements

 2                At the start of the June session of the VOSR hearing, the district court

 3   denied Ojudun's motion to exclude evidence of Gray's interview statements to

 4   Medina. The court ruled that all of Gray's statements were within the Rule 804(b)(3)

 5   exception for statements against the declarant's penal interest. (See Part II.B. below.)




 6                                     II. DISCUSSION




 7                On appeal, Ojudun contends that the district court erred (A) in denying

 8   his Fourth Amendment motion to suppress on the grounds that the Officers lacked

 9   reasonable suspicion to stop the Car and that Gray lacked authority to consent to the

10   search, and (B) in concluding that Gray's hearsay statements incriminating Ojudun

11   were admissible under Rule 804(b)(3) as statements against Gray's interest. We reject

12   Ojudun's Fourth Amendment contentions but find merit in his Rule 804(b)(3)

13   challenge.




14   A. The Fourth Amendment Challenges to the Stop and the Search

15                Ojudun's contentions that the district court erred in rejecting his Fourth


                                               16
 1   Amendment challenges to the stop and search of the Car do not require extended

 2   discussion. In considering challenges to the denial of a suppression motion, we

 3   review the district court's factual findings for clear error and its conclusions of law de

 4   novo. See, e.g., United States v. Medunjanin, 752 F.3d 576, 584 (2d Cir.), cert. denied, 135

 5   S. Ct. 301 (2014). Ojudun has not argued that any of the court's factual findings

 6   described in Part I.D. above are clearly erroneous; and we see no error of law.

 7                 It is well established that, consistent with the Fourth Amendment, a

 8   "government law enforcement agent may subject an individual to an investigative

 9   stop upon a reasonable suspicion that the individual is, has been, or is about to be

10   engaged in criminal activity. . . . The agent is said to have a reasonable suspicion

11   when he is in possession of 'specific and articulable facts which, taken together with

12   rational inferences from those facts, reasonably warrant [the] intrusion.'" United States

13   v. Villegas, 928 F.2d 512, 516 (2d Cir. 1991) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968));

14   see generally United States v. Brignoni-Ponce, 422 U.S. 873, 884-86 (1975) (the

15   interception of a moving vehicle, causing it to stop for questioning, is not so intrusive

16   that probable cause is required, so long as it is supported by specific articulable facts

17   that, together with rational inferences from those facts, reasonably warrant suspicion

18   that the vehicle contains persons who are engaging in or are about to engage in


                                                  17
 1   unlawful activity). The "touchstone of the Fourth Amendment is reasonableness."

 2   Florida v. Jimeno, 500 U.S. 248, 250 (1991). "Reasonableness, in turn, is measured in

 3   objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519

 4   U.S. 33, 39 (1996).

 5                As described in Part I.D.1. above, the district court applied these

 6   principles in evaluating the Officers' assessment of their observations of the unusual

 7   conduct described in Part I.B. above. We see no error in the court's conclusion that

 8   the stop of the Car was supported by reasonable suspicion, and we affirm the denial

 9   of Ojudun's challenge to the stop substantially for the reasons stated by the district

10   court.

11                Although Ojudun makes an additional argument that the record does not

12   support a finding that the Officers had reason to stop the Car for a violation of local

13   traffic laws, we need not address that argument, as the district court sufficiently

14   rested its decision on the ground described above.

15                It is also well established that the Fourth Amendment does not forbid a

16   warrantless search of private property pursuant to consent, voluntarily given, by the

17   owner of the property, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), or

18   by "another person who has authority to consent by reason of that person's 'common


                                                18
 1   authority over or other sufficient relationship to the premises,'" United States v. McGee,

 2   564 F.3d 136, 138 (2d Cir. 2009) ("McGee") (quoting United States v. Matlock, 415 U.S.

 3   164, 171 (1974)), or by a person who in fact lacked authority to consent but who

 4   "reasonably appeared to the police to possess authority to consent to the search,"

 5   McGee, 564 F.3d at 139. The requirement imposed by the Fourth Amendment's

 6   touchstone of reasonableness "is not that the[ officers] always be correct, but that they

 7   always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). Thus, where

 8   the person who gave consent did not have actual authority, the question is "whether

 9   the officers reasonably believed that [he] had the authority to consent." Id. at 189.

10                In challenging the district court's conclusion that Gray had apparent

11   authority to consent to the search of the Car and that it was reasonable for the Officers

12   to believe that he had authority, Ojudun argues that "no reasonable officer in

13   Medina's position would have assumed that Gray had . . . authority" to consent to a

14   search (Ojudun brief on appeal at 22); but he points to no evidence other than the fact

15   that the Car's registration was in a name other than that of Gray. While Ojudun states

16   that "Gray had only temporary access to the vehicle, . . . could not regularly access the

17   vehicle, . . . and did not have permission to drive the vehicle" (id.), not one of those

18   limitations was observable by the Officers, and, as the district court found (see Part


                                                19
 1   I.D.2. above), none was hinted at by Ojudun on January 12. Gray was the only person

 2   the Officers observed driving the Car; when asked for license and registration, Gray

 3   "immediately handed [them] over" (Ojudun brief on appeal at 22); and although

 4   Gray's consent to search the car was requested and discussed within earshot of at

 5   least Ojudun, none of the occupants of the car suggested in any manner that Gray, the

 6   driver, lacked authority to consent to a search. We conclude that the district court did

 7   not err in ruling that it was reasonable for the Officers to believe that Gray had such

 8   authority.




 9   B. The Challenge to the Admission of Gray's Postarrest Statements

10                Gray's postarrest interview by Medina was some 27 minutes long. At the

11   beginning, Gray claimed that he had come to New Jersey simply to visit an outlet at

12   the Short Hills mall that sold new or lightly used sneakers. For approximately the

13   first half of the interview, Gray denied his involvement in any fraudulent scheme and

14   persisted in proclaiming that single benign purpose. However, as Medina testified,

15   Gray eventually conceded "that he knew that they were leaving the Bronx to come to

16   that bank and that they were going to cash the check" (June Tr. 32).




                                               20
 1         1. Gray's Videotaped Statement

 2                The videotape reveals that Gray said he became the driver for the

 3   January 12 trip because he was a professional driver and preferred driving to being

 4   driven. And although he said he had never heard of Ojudun or Cesaro engaging in

 5   fraudulent banking activity before, Gray eventually admitted that he had known from

 6   the start of the trip that Ojudun's and Cesaro's intentions were to cash a check at the

 7   bank in Summit. (Gray also said near the start of the interview that he had never

 8   been involved previously in any activity of this sort; but toward the end he admitted

 9   that he had previously been "arrested" for this kind of conduct. See generally Part I.A.

10   above.) Gray said that Ojudun had called him on the morning of January 12 to make

11   plans to drive to New Jersey, that Ojudun already had possession of Ojudun's

12   girlfriend's car, and that Cesaro promised to pay Gray $100 to drive.

13                Gray said he knew when he got into the Car that the plan was to go to

14   Summit to cash a check. He said, however, that he had no conversation with Ojudun

15   or Cesaro as to the banking aspects of the trip; that he did not participate in selecting

16   the bank at which the check would be cashed and did not know why the bank in

17   question had been chosen; that he did not know the source of the checks or how

18   many such checks were in the Car; that he did not know the provenance of Cesaro's


                                                21
 1   identification; that he did not know how much money Cesaro or Ojudun respectively

 2   would receive from the check; and that he did not see, or know that, Cesaro gave

 3   Ojudun money from the cashed check.

 4               Gray said that when he stopped the Car to let Cesaro get out to go to the

 5   bank, he saw Ojudun give Cesaro a check. Gray said he did not know exactly what

 6   Cesaro was going to do in the bank once Gray dropped him off, although he knew the

 7   general plan was to cash a check. Gray said he was not paying close attention to the

 8   scheme because his principal purpose in driving to Summit was to look at sneakers

 9   at the mall. He said he only knew they were to go to the mall after the check was

10   cashed.




11         2. The District Court's Ruling

12               Over Ojudun's objection that the evidence of Gray's statements was

13   hearsay, the district court admitted the videotaped interview, and Medina's

14   description of it, ruling that it fell within Fed. R. Evid. 804(b)(3)'s exception for

15   statements against the declarant's punitive interest. The court reasoned as follows:

16               When somebody is sitting there, while it is true that Mr. Gray
17               starts off talking to the interviewing officer and pushing back
18               about any involvement, eventually, he concedes involvement, though
19               he does, I agree, try to push more involvement off on others than he
                                              22
 1                accepts for himself. But he puts himself there and he starts to concede
 2                some of the relevant facts. That at the very least is a statement
 3                against interest for a conspiracy claim. So it doesn't have to be
 4                what is actually charged for it to be a statement against interest
 5                but he is putting himself in the vicinity and in the circumstances
 6                where he's driving somebody in this car cause he knows how to
 7                drive to a location where he understands there's going to be bank fraud.
 8                So now while he may say, hey, I wasn't the really, the bad doer--
 9                and I'm summarizing . . . . [t]hat is a statement certainly against
10                his interest. He could not have thought that that statement was
11                something that could not result in a potential criminal penalty.
12                Perhaps a lesser criminal penalty than others might have suffered
13                or feared but a statement as against interest can be construed at
14                the level of a violation. But here we are not even talking about
15                that. We're talking some form of criminal conduct that would be
16                well above that level.

17   (June Tr. 5-6 (emphases added).)

18                Although a district court's decision to admit evidence is reviewed for

19   abuse of discretion, see, e.g., United States v. Saget, 377 F.3d 223, 231 (2d Cir. 2004)

20   ("Saget"), cert. denied, 543 U.S. 1079 (2005); United States v. Jones, 299 F.3d 103, 112 (2d

21   Cir. 2002); United States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998), the court "abuses or

22   exceeds the discretion accorded to it when (1) its decision rests on [(a)] an error of law

23   (such as application of the wrong legal principle) or [(b)] a clearly erroneous factual

24   finding, or (2) its decision . . . cannot be located within the range of permissible

25   decisions," Jones, 299 F.3d at 112 (internal quotation marks omitted). In light of the



                                                 23
 1   following legal principles, we have several difficulties with the court's decision in this

 2   case.




 3           3. Statements Against Penal Interest

 4                 Rule 804 provides that the hearsay rule does not exclude evidence of a

 5   statement against an unavailable declarant's penal interest if the

 6                 statement [is one] that:

 7                         (A) a reasonable person in the declarant's position would have
 8                 made only if the person believed it to be true because, when made, it . . .
 9                 had so great a tendency . . . to expose the declarant to . . . criminal
10                 liability; and

11                       (B) is supported by corroborating circumstances that clearly
12                 indicate its trustworthiness, if it is offered in a criminal case as one that
13                 tends to expose the declarant to criminal liability.

14   Fed. R. Evid. 804(b)(3). The threshold questions are whether the offered "statement"

15   of the declarant would be perceived by "a reasonable person in the declarant's shoes"

16   to be "detrimental to his or her own penal interest," Saget, 377 F.3d at 231.

17                 First, although the word "statement" might be read broadly to refer to a

18   declarant's "entire confession," Williamson v. United States, 512 U.S. 594, 599 (1994), it

19   must instead, in light of the principles underlying the Rule, be construed to refer to,

20   and to require assessment of, each assertion individually, see id. at 600-01.
                                                 24
 1                Rule 804(b)(3) is founded on the commonsense notion that reasonable
 2                people, even reasonable people who are not especially honest, tend not to
 3                make self-inculpatory statements unless they believe them to be true.
 4                This notion simply does not extend to the broader definition of
 5                "statement." The fact that a person is making a broadly self-inculpatory
 6                confession does not make more credible the confession's non-self-
 7                inculpatory parts. One of the most effective ways to lie is to mix
 8                falsehood with truth . . . .

 9   Id. at 559-600 (emphases added). Thus,

10                [t]he district court may not just assume for purposes of Rule 804(b)(3)
11                that a statement is self-inculpatory because it is part of a fuller
12                confession, and this is especially true when the statement implicates
13                someone else. "[T]he arrest statements of a codefendant have
14                traditionally been viewed with special suspicion. Due to his strong
15                motivation to implicate the defendant and to exonerate himself, a
16                codefendant's statements about what the defendant said or did are less
17                credible than ordinary hearsay evidence."

18   Williamson, 512 U.S. at 601 (quoting Lee v. Illinois, 476 U.S. 530, 541 (1986) (emphases

19   ours)).

20                Second, as to any particular statement, "[t]he question under Rule

21   804(b)(3) is always," in light of all surrounding circumstances, "whether the statement

22   was sufficiently against the declarant's penal interest that a reasonable person in the

23   declarant's position would not have made the statement unless believing it to be true."

24   Id. at 603-04 (internal quotation marks omitted) (emphasis added). Thus, while some

25   parts of a declarant's statement may be clearly self-incriminatory, "other parts, . . .

                                                 25
 1   especially the parts that implicated [the defendant, and] did little to subject [the

 2   declarant] himself to criminal liability," are not within the scope of Rule 804(b)(3)(A).

 3   Id. at 604; see id. ("A reasonable person in [the declarant's] position might even think

 4   that implicating someone else would decrease his practical exposure to criminal

 5   liability, at least so far as sentencing goes. Small fish in a big conspiracy often get

 6   shorter sentences than people who are running the whole show, . . . especially if the

 7   small fish are willing to help the authorities catch the big ones."). Accordingly, the

 8   court must "inquire[] whether each of the statements in [the declarant's] confession

 9   was truly self-inculpatory." Id. (emphases added). A particular statement by the

10   declarant is not within "the penal interest exception" if it incriminated the defendant

11   "exclusively." United States v. Wexler, 522 F.3d 194, 202-03 (2d Cir. 2008).

12                In light of these principles, we have several difficulties with the district

13   court's treatment of the Gray interview. First, the court did not focus on each of his

14   statements individually to determine which of them would reasonably have been

15   viewed as so exposing him to criminal liability as to fall within Rule 804(b)(3)(A).

16   Rather, as shown above, the court commented generally on Gray's statement as a

17   whole. To be sure, several of his statements were plainly contrary to his own penal

18   interest. He admitted--eventually--that he knew when he got into the Car at the start


                                                26
 1   of the trip that the plan was to go to the bank in Summit to cash a check, and he

 2   admitted that he was going to be paid $100 by Cesaro to drive Ojudun and Cesaro

 3   there. These statements were contrary to Gray's punitive interest, as the district court

 4   correctly noted that admitting to "driving somebody in this car . . . to a location where

 5   he understands there's going to be bank fraud" (June Tr. 5 (emphasis added))

 6   provided evidence that could lead to Gray's conviction for conspiracy to commit

 7   financial fraud. The fact that these statements also tended to implicate Ojudun, who

 8   had procured the Car, and Cesaro, who had cashed the check, did not lessen their

 9   detriment to Gray's interest because his statement was evidence of his foreknowledge

10   of and assistance in the commission of the crime. But these statements were but a

11   small part of Gray's overall interview.

12                Second, the court did not at all address the Gray statement that was most

13   damaging to Ojudun, Cesaro having been the person who promised Gray $100 and

14   physically cashed the counterfeit check. Gray said that when he stopped the Car to

15   let Cesaro out to go to the bank, Ojudun gave Cesaro the check. This was a statement

16   that tied Ojudun squarely to the execution of the fraud, without in any way further

17   implicating Gray. We cannot say that this statement fell within the scope of Rule

18   804(b)(3)(A).


                                                27
 1                Third, even where the court has properly found that a particular

 2   statement is against the declarant's own penal interest within the meaning of Rule

 3   804(b)(3)(A), the court must then determine whether there are "corroborating

 4   circumstances that clearly indicate," Fed. R. Evid. 804(b)(3)(B), "both the declarant's

 5   trustworthiness and the truth of the statement," United States v. Lumpkin, 192 F.3d 280,

 6   287 (2d Cir. 1999).       For those conditions to be satisfied, "the inference of

 7   trustworthiness from the proffered 'corroborating circumstances' must be strong, not

 8   merely allowable." United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484

 9   U.S. 966 (1987).

10                Here, most of Gray's statements, made to a law enforcement official,

11   were designed to minimize his involvement in the planned fraud and to deflect

12   responsibility onto Ojudun and Cesaro. Even after he abandoned his initial claim of

13   total innocence, he claimed, as detailed in Part II.B.1. above, total ignorance about,

14   inter alia, bank selection, the presence of counterfeit checks in the Car, cash in the Car,

15   provenance of fraudulent identifications, division of proceeds, and the source of the

16   checks. The thrust of Gray's statements, once Medina persuaded him that it would

17   be in his interest to abandon his claim of innocence, was that he knew Ojudun and

18   Cesaro planned to cash a check. The record does not indicate that the district court


                                                 28
 1   made any inquiry as to whether there were corroborating circumstances to indicate

 2   clearly that such of Gray's statements as fell within Rule 804(b)(3)(A) were

 3   trustworthy to the extent that they were made to a law enforcement official and

 4   sought to deflect responsibility onto Ojudun.

 5                In sum, we conclude that the district court, in holding Gray's entire set

 6   of statements to be within the scope of Rule 804(b)(3), erred in failing to make a

 7   particularized assessment of the various individual assertions, in failing to determine

 8   whether the relevant assertions were sufficiently corroborated as required by Rule

 9   804(b)(3)(B), and in failing to recognize that the Gray statement that was most

10   damaging to Ojudun was not within Rule 804(b)(3) because it did not implicate Gray

11   at all.

12                Although the government contends that any error with respect to the

13   admission of Gray's post-arrest statement was harmless, we disagree. The district

14   court stated that "[t]he post arrest statement of Mr. Gray indicates that Mr. Gray knew

15   that the check would be given from Mr. Ojudun to Mr. Cesaro and that Mr. Cesaro

16   then we know as a matter of fact exited the vehicle, went into the bank and passed the

17   check." (June Tr. 114.) In view of the district court's reliance on a portion of Gray's



                                               29
 1   statement that was not against his penal interest, the error under Rule 804(b)(3) was

 2   not harmless.

 3                Accordingly, we vacate the judgment and remand for the court to

 4   conduct the required particularized analyses. The court should determine which of

 5   Gray's statements could properly be admitted under Rule 804(b)(3), and in light of the

 6   admissible evidence, determine whether the VOSR charges against Ojudun have been

 7   established by a preponderance of the evidence.




 8         4. Rule 32.1 of the Federal Rules of Criminal Procedure

 9                Finally, we note that, as to such of Gray's statements as are not within the

10   scope of Evidence Rule 804(b)(3), the court may consider whether they may properly

11   be admitted instead pursuant to Rule 32.1(b)(2)(C) of the Federal Rules of Criminal

12   Procedure. While the Sixth Amendment right of confrontation that is applicable in

13   a criminal trial does not apply in a proceeding for probation revocation, parole

14   revocation, or revocation of supervised release because such a proceeding "is not a

15   stage of a criminal prosecution," United States v. Aspinall, 389 F.3d 332, 342 (2d Cir.

16   2004) ("Aspinall") (supervised release) (internal quotation marks omitted), abrogated



                                                30
 1   on other grounds by United States v. Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); see

 2   Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (parole); Gagnon v. Scarpelli, 411 U.S. 778,

 3   782 (1973) (probation), the accused in such a revocation proceeding enjoys certain

 4   protections under principles of due process, such as "the right to confront and cross-

 5   examine adverse witnesses (unless the hearing officer specifically finds good cause

 6   for not allowing confrontation)," Morrissey, 408 U.S. at 489.

 7                 This more limited right of confrontation is embodied in the Criminal

 8   Rules provision that the defendant in a revocation hearing "is entitled to . . . an

 9   opportunity to . . . question any adverse witness unless the court determines that the

10   interest of justice does not require the witness to appear."             Fed. R. Crim. P.

11   32.1(b)(2)(C). The balancing analysis envisioned by this Rule "need not be made

12   where the proffered out-of-court statement is admissible under an established

13   exception to the hearsay rule." Aspinall, 389 F.3d at 344; see, e.g., Jones, 299 F.3d at 113.

14   But for statements that would be inadmissible as hearsay under the Federal Rules of

15   Evidence, determinations as to good cause and the interests of justice "require[] the

16   court to balance the defendant's interest in confronting the declarant against . . . the

17   government's reasons for not producing the witness and the reliability of the



                                                  31
1   proffered hearsay." United States v. Carthen, 681 F.3d 94, 100 (2d Cir. 2012) (internal

2   quotation marks omitted), cert. denied, 568 U.S. 1092 (2013).




3                                      CONCLUSION

4                We have considered all of parties' arguments in support of their

5   respective positions on this appeal and, except to the extent indicated above, have

6   found them to be without merit. The judgment is vacated, and the matter is

7   remanded for proceedings consistent with the foregoing.




                                              32
