United States of America v. Michael Henderson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1736
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
MICHAEL HENDERSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11‐cr‐00074‐1 — Samuel Der‐Yeghiayan, Judge.
____________________
A RGUED SEPTEMBER 24, 2013 — D ECIDED D ECEMBER 4, 2013
____________________
Before P OSNER , T INDER , and HAMILTON, Circuit Judges.
T INDER , Circuit Judge. Michael Henderson was convicted
of possessing a firearm as a felon. The only contested issue at
trial was whether he possessed the gun; that the gun had
been in interstate commerce and Henderson’s status as a fel‐
on were undisputed. See 18 U.S.C. § 922(g)(1). This appeal
also presents a single issue: whether the district court abused
its discretion in excluding an out‐of‐court statement of an

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2 No. 13‐1736
unavailable declarant regarding the gun that Henderson was
charged with possessing?
On August 10, 2010, at around 10:30 p.m., Henderson
was driving a van accompanied by a passenger, Dexter Rog‐
ers. The van was owned by Elberto Rosado, Rogers’ room‐
mate. Chicago police officers Jason Bala and William O’Brien
stopped the van for failing to signal a turn. Both officers tes‐
tified that, as they approached the van, they observed the
driver furtively leaning forward and moving his right hand
along his waistband toward the small of his back. The offic‐
ers ordered the occupants of the van to show their hands,
and the occupants complied. Henderson did not have a gun
in his hands. The officers ordered Henderson and Rogers out
of the van and handcuffed them.
After Henderson was out of the van, Officer Bala ob‐
served the handle of a handgun extending up from between
the driver’s seat and seatback. (The rest of the gun was
tucked in between the seat and back.) Bala alerted Officer
O’Brien to the gun. O’Brien testified that he could see about
two inches of the butt of the gun protruding from the seat.
(At oral argument, counsel confirmed that the front seats of
the van were bucket seats.) Fingerprints were found on the
gun, but an analyst testified that it could not be determined
whose prints they were. During a pat down of Rogers, the
officers found straws containing suspected cocaine. Hender‐
son and Rogers were arrested.
They were interviewed at the police station. Two other
police officers testified that when Henderson was asked why
he had the gun, he stated that he was unfamiliar with that
neighborhood or gangs in the neighborhood and had the
gun for protection. Henderson disputes that he made such a

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No. 13‐1736 3
statement and offered evidence that he grew up in the area
and has two children who live with their mother in the area.
The interview was not recorded; no written statement was
taken from Henderson. Rogers was not asked about the gun
found in the van but he did pull a clear, knotted plastic bag
from his genital area. The bag contained smaller zip lock
bags containing a white powdery substance suspected to be
crack cocaine.
Rosado was interviewed by the government twice in
January 2011, and then he testified before the grand jury that
the gun was not his, he did not put it in the van, and he had
no idea where it had come from. On March 5, 2012, one
week before trial, Rosado stated for the first time to the gov‐
ernment that he had visited Rogers in jail a few weeks after
Rogers’ arrest and asked him what had happened. Accord‐
ing to Rosado, Rogers said that he just found the gun and
kept it, brought it into the van, and was going to take it to
the residence that he and Rosado shared. Rosado remarked
that what Rogers said did not make any sense, but he didn’t
question Rogers about it further. Rosado had met with the
defense before the March interview with the government
and had never mentioned Rogers’ supposed statement about
the gun.
The government moved to exclude Rosado’s anticipated
testimony about Rogers’ alleged statement as inadmissible
hearsay. Henderson argued that the testimony was admissi‐
ble under Rule 804(b)(3) as a statement against penal inter‐
est. (If called to testify, Rogers, a convicted felon, would
plead the Fifth Amendment regarding his possession of the
gun.) The district court granted the motion. The court found
first that “the Statement is incredible on its face. Henderson

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4 No. 13‐1736
has not presented any reasonable explanation to show that it
is plausible that Rogers found a loaded gun on the street.”
The court also found that “even if the Statement was made,
the totality of the circumstances indicates that the Statement
was made to help Henderson out.” Furthermore, the court
determined that Henderson had “failed to point to sufficient
corroborating evidence to suggest that the Statement is
trustworthy.” Therefore, it concluded Henderson had not
satisfied Federal Rule of Evidence 804(b)(3)’s corroboration
requirement and excluded the statement. At the conclusion
of the trial, the jury returned a guilty verdict. Henderson
contends that the exclusion of Rosado’s testimony was erro‐
neous, thereby justifying a new trial.
We review the district court’s evidentiary rulings for an
abuse of discretion. United States v. Jones, 600 F.3d 847,
853 (7th Cir. 2010). “The district court’s determination as to
the trustworthiness of out‐of‐court statements is ‘entitled to
considerable deference’ and should be upheld unless ‘clearly
erroneous.’” Id. (quoting United States v. Jackson, 540 F.3d
578, 587 (7th Cir. 2008)). Although hearsay is generally ex‐
cluded from evidence, Rule 804(b)(3) authorizes its admis‐
sion where (1) the declarant is unavailable as a witness, (2)
the statement was against the declarant’s interest when
made, and (3) if the statement is offered to exculpate the de‐
fendant, “corroborating circumstances … clearly indicate its
trustworthiness.” Fed. R. Evid. 804(b)(3); see also United States
v. Hall, 165 F.3d 1095, 1112 (7th Cir. 1999) (“Rule 804(b)(3)
expressly requires the exclusion of out‐of‐court statements
offered to exculpate the accused unless there are corroborat‐
ing circumstances that ‘clearly indicate’ the trustworthiness
of the statement”). The rule’s corroboration requirement re‐
flects “a long‐standing concern … that a criminal defendant

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No. 13‐1736 5
might get a pal to confess to the crime the defendant was ac‐
cused of, the pal figuring that the probability of his actually
being prosecuted either for the crime or for perjury was
slight.” United States v. Silverstein, 732 F.2d 1338, 1346 (7th
Cir. 1984).
Henderson contends that the district court erred in ex‐
cluding Rogers’ hearsay statement because corroborating
circumstances clearly suggest that the statement was trust‐
worthy. The government responds that the court properly
found that Henderson offered nothing to corroborate the re‐
liability of the statement and that the statement was incredi‐
ble on its face.
Henderson’s brief raises a question about Rule 804(b)(3)’s
corroboration requirement. Does the rule require corrobora‐
tion of the content of the hearsay statement or the fact that
the statement was made, or both? The advisory committee’s
note instructs that “[t]he requirement of corroboration
should be construed in such a manner as to effectuate its
purpose of circumventing fabrication.” Fed. R. Evid. 804 ad‐
visory committee’s note (1972). This may seem to suggest
that corroboration is required for both. See 5 Clifford S.
Fishman & Anne T. McKenna, Jones on Evidence § 36:88 (7th
ed. 2012). Either the fact of the statement itself or its content
is susceptible to fabrication. See Advisory Committee’s Notes to
Proposed Rules, Rules of Evidence for United States Courts and
Magistrates, 56 F.R.D. 183, 327 (1972) (explaining that “one
senses in the decisions a distrust of evidence of confessions
by third persons offered to exculpate the accused arising
from suspicions of fabrication either of the fact of the making
of the confession or in its contents, enhanced in either in‐
stance by the required unavailability of the declarant”).

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6 No. 13‐1736
However, “[a]s a matter of standard hearsay analysis, the
credibility of the in‐court witness regarding the fact that the
statement was made is not an appropriate inquiry.” 2 K.
Broun, McCormick on Evidence § 319 (6th ed. 2006) (footnotes
omitted). “Indeed, the Advisory Committee’s Note to the
2010 amendment stated that ‘the credibility of the witness
who relates the statement is not a proper factor for the court
to consider in assessing corroborating circumstances.’” Id.
The note explains that “[t]o base admission or exclusion of a
hearsay statement on the witness’s credibility would usurp
the jury’s role of determining the credibility of testifying
witnesses.” Fed. R. Evid. 804 advisory committee’s note
(2010). The question of whether the declarant made the
statement implicates the testifying witness’s credibility;
making credibility determinations is a role reserved to the
jury.
We have stated that “Rule 804(b)(3) does not require that
the statements themselves be clearly corroborated.” United
States v. Garcia, 986 F.2d 1135, 1141 (7th Cir. 1993). The rule
requires only that corroborating circumstances clearly indi‐
cate the trustworthiness of the statement. Id. “[T]he corrobo‐
ration requirement … is a preliminary question as to the
admissibility of evidence.” Id. The district judge need not be
“completely convinced” of the truth of the statement for the
statement to be admissible. Id.
It has been observed that:
In the law of evidence, corroboration of tes‐
timony just means that there is some evidence
besides the testimony itself to indicate that the
testimony is trustworthy—not that it is neces‐
sarily true, but (when it is a hearsay statement)

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No. 13‐1736 7
that it is sufficiently worthy of belief to have
value as evidence despite the impossibility of
subjecting the declarant to the fires of cross‐
examination. For the corroboration to “clearly”
indicate the trustworthiness (though, again,
not necessarily the truth) of the out‐of‐court
statement requires a more probing inquiry, for
example into the motive of the declarant to lie.
United States v. Amerson, 185 F.3d 676, 691 (7th Cir. 1999)
(Posner, J., dissenting) (citations omitted). Corroboration
may be supplied by independent evidence supporting the
statement itself, or by the circumstances in which the state‐
ment was made suggesting that the statement is trustwor‐
thy, or both. See, e.g., United States v. Butler, 71 F.3d 243, 253
(7th Cir. 1995) (considering whether there was “direct evi‐
dence which corroborates [the declarant’s] exculpatory
comments” and then considering whether “the circumstanc‐
es surrounding [the declarant’s] statement … buttress[ed] its
trustworthiness”); 5 Christopher B. Mueller & Laird C. Kirk‐
patrick, Federal Evidence, § 8:131 (3d ed. 2007) (“Certainly the
[corroboration] requirement is satisfied by independent evi‐
dence that directly or circumstantially tends to prove the
points for which the statement is offered.”). Thus, although
not required, corroboration of the content of the hearsay
statement may indicate that the statement is trustworthy. See
Michael H. Graham, 7 Handbook of Federal Evidence § 804:3
(7th ed. 2012) (collecting cases).
Henderson has not satisfied Rule 804(b)(3)’s corrobora‐
tion requirement. First, as the district court found, Rogers’
statement that he found a loaded gun somewhere is implau‐
sible. A court can consider the statement itself in determin‐

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8 No. 13‐1736
ing whether it is sufficiently worthy of belief. See Handbook of
Federal Evidence § 804:3 (“The information within the state‐
ment itself may also be considered as an element of corrobo‐
ration. Is the statement so contradictory as to be not credita‐
ble?”) (quotation marks omitted). “[S]pecious assertions …
lack corroboration and should be excluded. On the other
hand, if a declarant is tied to the time and place of the crime
and the statement has substantial plausibility, the corrobora‐
tion requirement has been met.” Id. (quotation marks omit‐
ted). Rogers was in the van when the gun was discovered,
which ties him to the time and place of the crime. Nonethe‐
less, his claim to have found the loaded gun somewhere
lacks substantial plausibility. The implausibility of Rogers’
statement is buttressed by the evidence of where the officers
found the gun—wedged in the driver’s (Henderson’s) seat.
It would make little sense for Rogers, the passenger, to place
the gun there, as opposed to another, more accessible loca‐
tion in the van, if he intended to take it home. Moreover,
Rogers’ statement was utterly lacking in factual detail: He
did not state where he found the gun or when he found it;
nor did he identify the type of gun he found. This lack of de‐
tail suggests that Rogers was fabricating. See, e.g., Long‐Gang
Lin v. Holder, 630 F.3d 536, 543 (7th Cir. 2010) (“A lack of de‐
tail is a ‘major clue’ that someone is lying.”); Jean R. Stern‐
light & Jennifer Robbennolt, “Good Lawyers Should Be
Good Psychologists: Insights for Interviewing and Counsel‐
ing Clients,” 23 Ohio St. J. on Disp. Resol. 437, 488
(2008) (“Liars tend to offer fewer details [than truth tell‐
ers]”).
In addition, there is no independent evidence to corrobo‐
rate the content of Rogers’ statement. No fingerprint evi‐
dence was offered to show that Rogers had handled the gun.

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No. 13‐1736 9
And Henderson presented no testimony from any witness
who was with Rogers when he allegedly found the gun. Nor
was there any testimony that anyone had seen Rogers with
the gun. There was no evidence that Rogers repeated his
statement about finding the gun to anyone other than Ro‐
sado. Such evidence could buttress the statement’s reliabil‐
ity. We recognize that Henderson is not required to provide
corroborating evidence of the information in Rogers’ state‐
ment; however, the lack of such evidence is a circumstance
the district court could consider in determining whether the
statement was sufficiently trustworthy as to be admissible.
Henderson argues that application of the factors identi‐
fied in United States v. Jackson for consideration when deter‐
mining whether corroborating circumstances exist suggests
that testimony about Rogers’ statement was admissible.
Even if a few of the factors lend some corroboration to Rog‐
ers’ statement—Rogers’ statement was voluntary, not calcu‐
lated to curry favor with authorities; and there is no evi‐
dence that Rogers gave conflicting statements, see 540 F.3d at
589–90, the district court determined that another one of the
factors cut the other way: namely, the relationship between
the declarant (Rogers) and the exculpated party (Hender‐
son). Henderson challenges the court’s determination that
the totality of the circumstances suggested Rogers made the
statement to “help Henderson out.” He argues that at the
time of the statement—weeks after he and Rogers were ar‐
rested—Rogers had no idea whether Henderson would be
charged with possessing a firearm as a felon. Yet Henderson
acknowledges that he and Rogers were friends; Rogers could
have known that Henderson was a convicted felon. And
Rogers, also a convicted felon, would have known that a fel‐
on’s possession of a firearm is a crime. Thus, there is reason

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10 No. 13‐1736
to believe that Rogers might think Henderson would be
charged with possessing the firearm found wedged between
the seat and back of the seat in which Henderson was sitting
when it was found by law enforcement.
This conclusion is buttressed by the officers’ testimony
that they observed the driver’s furtive movements of leaning
forward and moving his right hand along his waistband to‐
ward the small of his back. This testimony raises the infer‐
ence that Henderson was attempting to conceal the gun from
the officers. Common sense suggests that he was attempting
to conceal the gun because he had something to hide. Be‐
cause Rogers was right there in the passenger seat, he too
should have been aware of Henderson’s movements and at‐
tempted concealment that suggested a motive to hide the
gun from law enforcement. Therefore, we find no clear error
in the district court’s determination that the totality of the
circumstances suggest that Rogers made the statement to
help Henderson out.
United States v. Hatfield, 591 F.3d 945 (7th Cir. 2010), on
which Henderson relies, does not support admissibility in
this case. In Hatfield, the defendants attempted to introduce
the hearsay statements of a man who claimed that he and
three other people had committed one of the pharmacy bur‐
glaries of which the defendants were charged. There was no
suggestion that the declarant knew any of the defendants.
The declarant’s statement was corroborated by the fact that
he had called 911 while the burglary was in progress and in
his initial statement to police, he had said that someone
broke into the pharmacy by shattering the glass on the front
door; this was evidence that the declarant was present at the
burglary. Id. at 953. We concluded that the hearsay statement

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No. 13‐1736 11
was sufficiently trustworthy and should have been admit‐
ted. Id.
In contrast, Rogers and Henderson are friends and Hen‐
derson has offered next to nothing to corroborate Rogers’
statement that he found the gun somewhere, brought it into
the van, and intended to take it home. Although Rogers was
traveling in the van with Henderson, that fact is merely con‐
sistent with rather than clearly corroborative of his state‐
ment. See Butler, 71 F.3d at 253 (concluding that fact the de‐
clarant was in the room where guns were found did not cor‐
roborate exculpatory parts of declarant’s statement that the
defendant was not in the room and that the police planted
the guns); Silverstein, 732 F.2d at 1347 (concluding that mere
opportunity and ability to commit murder to which declar‐
ant confessed was not clearly corroborative of confession
“but merely consistent with it” where statement did not con‐
tain facts that only the murderer could have known and
where there was no other evidence linking declarant to the
crime). Henderson takes certain language from United States
v. Garcia, 897 F.2d 1413 (7th Cir. 1990), out of context. Con‐
trary to his assertion, it is not enough for him to show “some
corroborative evidence,” id. at 1421, of Rogers’ statement; he
is required to show “that corroborating circumstances clearly
indicate the trustworthiness of [the statement,” id. at 1420
(emphasis added). He has not satisfied this requirement.
Therefore, the district court did not commit clear error in
determining that Henderson failed to point to corroborating
circumstances that clearly indicate Rogers’ hearsay state‐
ment was trustworthy. Accordingly, the court did not abuse
its discretion in excluding that statement.
The district court’s judgment is A FFIRMED.

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