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917 F2d 28 United States v. Davis

917 F.2d 28

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Tommy Lee DAVIS, Defendant-Appellant.

No. 89-50065.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 25, 1990.

Before HUG, NELSON and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Tommy Lee Davis appeals his conviction, following a jury trial, for conspiracy to commit an offense against the United States in violation of 18 U.S.C. Sec. 371, for robbery of a person having control of property of the United States in violation of 18 U.S.C. Sec. 2114, and for knowingly carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. Sec. 924(c). Davis contends that the admission into evidence of an out-of-court statement given by Eyvette Beasley Roberts to a postal inspector violated the sixth amendment's confrontation clause and, implicitly, the rule against hearsay. We affirm.

3

Roberts' out-of-court statement did not inculpate Davis directly. The district court redacted the statement so that it identified only Roberts. Her statement indicated that she was involved in the same post office robbery for which Davis was convicted. Other testimony had been elicited to associate Roberts with Davis on the day of the robbery. Thus, the statement was admitted to support the inference that Davis conspired with Roberts to rob the post office.

4

Roberts' statement was admissible under the statement against interest exception to the hearsay rule. See Fed.R.Evid. 804(b)(3). The district court found that Roberts would refuse to testify if called as a witness. Because Davis does not challenge this finding, there is no real dispute that Roberts was unavailable.1 Furthermore, Roberts' statement was clearly against her penal interest. Finally, her statement was corroborated at trial by the testimony of several witnesses, each of whom described a post office robbery that comports with Roberts' description of events. The statement thus constituted a valid exception to the hearsay rule. See United States v. Candoli, 870 F.2d 496, 508-09 (9th Cir.1989).

5

The admission of Roberts' statement into evidence also did not violate Davis' rights under the confrontation clause. Roberts' unavailability is essentially uncontested, and the corroboration of her statement provides a sufficient indication of reliability to overcome the constitutional objection. See id. at 510. Because Roberts' statement was admissable against Davis, who was tried alone, the decisions in Bruton v. United States, 391 U.S. 123 (1968), and its progeny are not in point.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Because Davis has made no showing that Roberts would have testified, his argument that the district court erred by denying a continuance to facilitate Roberts' testimony lacks merit. See United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir.1980)