Tony Scolari v. United States
1969 U.S. App. LEXIS 9426 · 406 F.2d 563
January 8, 1969 · Docket 22567
Headnotes
Generated summaries- Headnote 1
The defendant sought to introduce his passenger’s out‑of‑court statement that she alone placed the drugs in the tire. The court held that such a statement does not qualify for the penal‑interest exception and must be excluded as hearsay.
- Headnote 2
The opinion quoted Judge Holtzoff in United States v. Heideman, emphasizing that the common law applied by federal courts is determined by the Supreme Court on all evidentiary questions.
- Headnote 3
The district court excluded the passenger’s out‑of‑court statement as inadmissible hearsay; on appeal, the court affirmed that exclusion, finding no error in the trial court’s evidentiary ruling.
- Headnote 4
The Court noted that the defendant’s attempt to introduce his co‑defendant’s out‑of‑court statements was barred because they were offered for their truth, triggering the hearsay prohibition.
- Headnote 5
The Court applied Donnelly, holding that statements merely acknowledging the declarant’s own criminal conduct do not fall within any penal‑interest exception.
- Headnote 6
Citing Judge Holtzoff in United States v. Heideman, the Court emphasized that Supreme Court authority determines the common law applied by federal courts on evidentiary issues.
- Headnote 7
The per curiam opinion affirmed the district court’s ruling rejecting the co‑defendant’s statements, concluding the trial court’s decision was proper.
- Headnote 8
The defendant sought to introduce his co‑defendant’s out‑of‑court admission that she alone placed narcotics in the vehicle. The court held that such a statement does not fall within the penal‑interest exception and is barred as hearsay.
- Headnote 9
The district court excluded the co‑defendant’s out‑of‑court statements. The appellate court found no error in that ruling and affirmed the conviction.
- Headnote 10
The court cited Judge Holtzoff’s statement that federal common law on evidence is determined by the Supreme Court and declined to depart from that authority.
- Headnote 11
At trial Scolari sought to testify that passenger Judi Taylor told him she alone put the amphetamines in the spare‑tire compartment. The district court excluded that testimony as hearsay.
- Headnote 12
The court cited Judge Holtzoff’s view in United States v. Heideman that Supreme Court authority determines the common law applied by federal courts on evidence issues.
- Headnote 13
The Court found that such statements merely acknowledge the declarant’s own criminal conduct and, unlike statements against pecuniary interest, do not fall within the penal‑interest exception.
- Headnote 14
The appellate court affirmed the trial court’s evidentiary ruling because the statement was barred as hearsay and the court correctly applied controlling precedent.
- Headnote 15
The Court rejected the notion that Rule 26 gave it authority to depart from Supreme Court precedent and emphasized that the Supreme Court controls the common law of evidence.
- Headnote 16
Citing Donnelly, the Court held that no recognized hearsay exception exists for a declarant’s admission that she alone performed the illegal act.
Opinion
Convicted under two counts of an indictment charging smuggling of merchandise which should have been invoiced, 18 U.S.C. § 545, Scolari appeals. We affirm.
Scolari drove a car across the border from Mexico. One Judi Taylor was a passenger in the car. Hidden in the spare tire were 10,000 amphetamine tablets, 5,000 seconal tablets and 24 packages of Keith Formula. Scolari’s defense was that he did not know that the drugs were there. At the trial he sought to testify that Judi Taylor told him that she put the items in the tire and that he was not a party to it. The evidence was excluded.
Scolari urges that the testimony should have been allowed as an exception to the hearsay rule, on the ground that Taylor’s declarations were against her penal interest. The weight of authority is against him. 5 Wigmore, Evidence §§ 1455-77 (3d Ed., 1940). To us, the most weighty authority is Donnelly v. United States, 1913, 228 U.S. 243, 272-277, 33 S.Ct. 449, 57 L.Ed. 820. See also Jeffries v. United States, 9 Cir., 1954, 215 F.2d 225, 15 Alaska 83, and compare Jones v. United States, 9 Cir., 1968, 400 F.2d 134, 136. The rule excluding hearsay declarations against penal interest, even though hearsay declarations against pecuniary interest are admitted, has been criticized and in some cases has been repudiated. 1 It has been suggested that Rule 26, F.R.Crim.P., confers on us some general authority to decline to follow Supreme Court precedent in ruling on the admissibility of evidence. See 8 Moore’s Federal Practice § 26.02. But assuming that we have that authority, and particularly because we ourselves in Jeffries, supra, have followed Donnelly, supra, we do not think that we should exercise that authority here. We think it more appropriate to apply, in this case, the views expressed by Judge Holtzoff in United States v. Heideman, D.D.C., 1958, 21 F.R.D. 335, 337: “Necessarily, the common law applied by the federal courts is determined by the Supreme Court of the United States on all points on which that tribunal speaks.” We leave to a more propitious occasion the question as to how old, or how badly reasoned, or both, a Supreme Court decision on a question of evidence must be before we are to feel free to refuse to follow it.
Affirmed.
. . See Donnelly v. United States, supra, 228 U.S. at 277, 33 S.Ct. 449 (Holmes, J., dissenting); Jones v. United States, supra; United States v. Dovico, 2 Cir., 1967, 380 F.2d 325, 327 & n. 2; Mason v. United States, 10 Cir., 1958, 257 F.2d 359; State v. Larsen, 1966, 91 Idaho 42, 415 P.2d 685; People v. Spriggs, 1964, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377; People v. Lettrich, 1952, 413 Ill. 172, 108 N.E.2d 488. See also Cal.Evid. Code, § 1230; Wigmore, op. cit.