United States of America v. Scott Hawkins

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2210
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
SCOTT HAWKINS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 00081 — Amy J. St. Eve, Judge.
____________________
A RGUED OCTOBER 1, 2015 — D ECIDED OCTOBER 20, 2015
____________________
Before P OSNER , MANION, and H AMILTON, Circuit Judges.
MANION, Circuit Judge. Scott Hawkins and Lester
Warfield were indicted for a Chicago bank robbery carried
out by two men in February 2012. After his arrest, Warfield
initially admitted that he and Hawkins were the robbers, but
later changed his story and claimed that he had robbed the
bank with a man named James Brooks. Before trial, Hawkins
moved to admit Warfield’s later statement implicating

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No. 14‐2210 2
Brooks as a statement against interest under Federal Rule of
Evidence 804(b)(3). The district court excluded the statement
because it lacked sufficient indicia of trustworthiness, and
Hawkins was ultimately convicted following trial. For the
reasons that follow, we affirm Hawkins’s conviction.
I. BACKGROUND
On February 3, 2012, two men robbed a Chase Bank
located on West Irving Park Road in Chicago’s North Side.
When Lester Warfield was arrested on the day of the
robbery, he told the FBI that he had robbed the bank with
Scott Hawkins. The following month, Hawkins and Warfield
were indicted for the robbery in the Northern District of
Illinois. Subsequently, on November 30, 2012, Warfield held
a proffer session with the government. During that session,
he recanted his initial statement to the FBI and, instead of
Hawkins, now alleged that he had robbed the bank with
James Brooks, also known as “Stank.” (Earlier that year,
Warfield also told a confidential informant in prison that a
masked bank robber depicted on television was a “co‐
defendant” of Warfield’s who went by the nickname
“Stank.”) Warfield eventually pleaded guilty to the bank
robbery in October 2013; notwithstanding his prior
statements, however, Warfield refused to identify the other
robber during his plea colloquy.
Prior to trial, Hawkins moved to admit Warfield’s
November 30 proffer statement regarding Brooks’s
supposed involvement in the robbery. Because Warfield
intended to assert his Fifth Amendment privilege not to
testify, Hawkins argued that the proffer statement was
admissible under Federal Rule of Evidence 804(b)(3) as a
statement against penal interest made by an unavailable

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No. 14‐2210 3
witness. The district court denied Hawkins’s motion and
excluded Warfield’s proffer statement on grounds that the
statement was not supported by corroborating
circumstances that clearly indicated its trustworthiness. See
Fed. R. Evid. 804(b)(3)(b). Hawkins was convicted of bank
robbery and subsequently sentenced to 100 months’
imprisonment. He now appeals his conviction, arguing that
the district court erred by excluding Warfield’s proffer
statement from evidence.
II. A NALYSIS
Generally, an out‐of‐court statement offered for the truth
of the matter asserted is not admissible unless it falls within
an exception to the hearsay rule. Under the exception of Rule
804(b)(3), a hearsay statement may be admissible in a
criminal case if three conditions are met: “(1) the declarant is
unavailable as a witness, (2) the statement was against the
declarant’s penal interest when made, and (3) corroborating
circumstances clearly suggest that the statement is
trustworthy.” United States v. Jackson, 540 F.3d 578, 588 (7th
Cir. 2008) (citations and internal marks omitted). “The
proponent of the hearsay statement bears the burden of
demonstrating that each of these elements is satisfied.” Id.
(citing United States v. Robbins, 197 F.3d 829, 838 (7th Cir.
1999)).
Here, the parties do not dispute that Warfield was
unavailable as a witness because he intended to assert his
Fifth Amendment privilege not to testify. Nor does the
government contest the district court’s finding that the
proffer statement was against Warfield’s penal interest, since
it exposed him to a potentially greater sentence and
additional criminal charges. See Dist. Ct. Order at 3 (noting

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No. 14‐2210 4
that Warfield’s proffer statement could result in perjury
charges or an enhancement for obstruction of justice). Thus,
the only issue on appeal is whether Warfield’s proffer
statement was supported by corroborating circumstances
that clearly indicated its trustworthiness.
The district court’s determination regarding the
trustworthiness of out‐of‐court statements is entitled to
considerable deference and should be upheld unless clearly
erroneous. Jackson, 540 F.3d 578, 588–89 (7th Cir. 2008) (citing
United States v. Amerson, 185 F.3d 676, 684 (7th Cir. 1999);
United States v. Hall, 165 F.3d 1095, 1112 (7th Cir. 1999)). In
United States v. Nagib, 56 F.3d 798 (7th Cir. 1995), we
identified several factors for consideration in determining
whether corroborating circumstances exist for purposes of
Rule 804(b)(3): (1) the closeness of the relationship between
the confessing party and the exculpated party; (2) whether
the statement was voluntarily made after Miranda warnings;
and (3) whether the statement was made to curry favor with
authorities. Id. at 805 (citing United States v. Garcia, 986 F.2d
1135, 1140 (7th Cir. 1993)). These factors are not exhaustive.
Courts must ultimately determine the admissibility of
statements against penal interest in light of all the
surrounding circumstances. See Jackson, 580 F.3d at 589
(citations omitted) (“We have never said … that the
considerations we identified in Nagib were the only factors to
be weighed in determining whether corroborating
circumstances exist.”).
We find no clear error in the district court’s
determination that Warfield’s proffer statement implicating
Brooks lacked sufficient corroborating circumstances to be
admissible. First, the proffer statement was flatly

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No. 14‐2210 5
contradicted by Warfield’s earlier statement to police that
Hawkins, not Brooks, was the second robber. Multiple
witnesses also implicated Hawkins and Warfield in the
robbery, but no witness made any mention of Brooks. 1
Hawkins was likewise found to be the “major contributor”
of DNA taken from a hat that was likely worn by one of the
robbers during the robbery. (The hat matched the
appearance of the robber’s hat on the bank’s surveillance
video and was found outside a car that matched the
description of the getaway car.) Further, when Hawkins was
caught while fleeing from police shortly after the robbery, he
was found to have $2,001 on his person; and one of the bank
tellers had given exactly $2,000 to one of the robbers. Finally,
notwithstanding his prior mention of Brooks in the proffer
statement, Warfield refused to name the individual who had
robbed the bank with him when he ultimately made his
guilty plea.
Taken together, these circumstances are more than
enough to justify the district court’s finding that Warfield’s
proffer statement implicating Brooks was not sufficiently
corroborated to warrant admission under Rule 804(b)(3).
Indeed, not only do the relevant circumstances cast doubt on
the credibility of Warfield’s proffer statement, they also
1 For example, one eyewitness who was standing outside the bank
during the robbery identified Hawkins and Warfield as the men he saw
enter the bank and then come running out just minutes later. Tr. at 111–
21. Warfield’s nephew also implicated Hawkins and Warfield in the
robbery. Tr. at 66–81. Neither witness made any indication that one of
the robbers may have been Brooks, or for that matter that the robbers
were anyone other than Hawkins and Warfield.

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No. 14‐2210 6
consistently corroborate the trustworthiness of Warfield’s
initial statement to police on the day of the robbery: that it
was Hawkins, not Brooks, who robbed the bank with him.
A few circumstances also appear to corroborate the
proffer statement—specifically, the three Nagib factors and
Warfield’s vague comment about “Stank” to the confidential
informant—but these circumstances pale in comparison to
the host of significant contravening circumstances that
undermine the statement’s credibility. Accordingly, when
viewed as a whole, the circumstances do not “clearly
suggest” that Warfield’s proffer statement was trustworthy.
See Jackson, 540 F.3d at 589 (despite several corroborating
circumstances, statement against interest was properly
excluded where other circumstances—including a prior
contradictory statement by the declarant—“strongly
detract[ed] from any corroboration”).
Hawkins argues at length that the district court erred by
considering “anticipated trial evidence” to evaluate the
proffer statement’s credibility, rather than limiting its
consideration to the “context” in which the statement was
made. But courts are not permitted, let alone required, to
deliberately ignore circumstances relevant to the
corroboration inquiry based merely on the ways in which
those circumstances may be characterized. The law calls only
for the consideration of “corroborating circumstances”
clearly indicating trustworthiness. It makes no difference
whether those circumstances are instead called “context,” or
whether they are drawn from evidence that happens to be
anticipated at trial. Nothing in Rule 804(b)(3) confines the
judge’s consideration of relevant circumstances in this way.

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No. 14‐2210 7
Along the same lines, Hawkins contends that the district
judge “usurp[ed] the jury’s role as the ultimate fact‐finder”
by assessing the available evidence to determine if the
proffer statement was trustworthy. As we previously
emphasized in Jackson, however, it is the province of the
judge to determine the admissibility of evidence; and it is
therefore the judge’s role, not the jury’s, to determine
whether sufficient corroborating circumstances exist under
Rule 804(b)(3). Jackson, 540 F.3d at 590. See also Fed. R. Evid.
104(a) (preliminary questions of admissibility are left to the
court); Fed. R. Evid. 804(b)(3) advisory committee’s note to
1972 amendment (citation omitted) (Rule 804(b)(3)’s
corroboration requirement is a “requirement preliminary to
admissibility”).
Because we conclude that the district judge did not
clearly err by excluding Warfield’s proffer statement, we do
not reach the government’s alternative argument that any
error was harmless. The district court properly found that
the proffer statement was not supported by sufficient
corroborating circumstances, and we affirm on that basis
alone.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Hawkins’s
conviction.

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