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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : No. 4:16-cr-00006-02

:

v. : (Judge Brann)

:

ANTOINE PARIS DAVIS, :

:

Defendant. :

MEMORANDUM

September 21, 2016

I. BACKGROUND

Shortly after Raheem Jarmar Ruley exchanged cocaine for cash with an 

undercover Pennsylvania State Police trooper in June 2015, officers searched the 

Williamsport, Pennsylvania dwelling he shared with Antoine Paris Davis. Once 

inside, officers allegedly discovered, among other evidence, drug paraphernalia

and suspected drug proceeds intermingled with Mr. Davis’s personal 

belongings, in addition to incriminating text messages on Mr. Davis’s cell phone.

A federal grand jury indicted the pair on various drug possession, drug 

distribution, and drug conspiracy charges, after which the two were imprisoned 

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together at a state correctional facility in Columbia County. During that period of

incarceration, Mr. Ruley purportedly authored his so-called “Affidavit of Truth,” 

a one-page, penciled document in which he accepted complete responsibility for 

the instant offense conduct and wholly denounced the Government’s suggestion 

that Mr. Davis was ever complicit in the alleged drug enterprise.

As informal plea discussions broke down, however, Mr. Ruley abruptly 

changed his tune. Facing an impending jury trial, Mr. Ruley pled open to the 

indictment, and during the course of the associated plea colloquy, extinguished

whatever glimmer of veracity his jailhouse affidavit once possessed. According 

to Mr. Ruley’s own admission, the “Affidavit of Truth” was entirely false and 

was actually written not by himself but by Mr. Davis.

Even in light of Mr. Ruley having recanted the substance of the affidavit, 

Mr. Davis has not been of the same mind as his once co-conspirator. Vowing to 

proceed to trial, Mr. Davis, through his second court-appointed counsel, G. Scott 

Gardner, Esquire, asks the Court to rule on the pending motion in limine and to 

permit introduction of Mr. Ruley’s now-defunct “Affidavit of Truth” at trial. 

Though conclusive determination of such an evidentiary proffer necessarily 

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depends upon certain trial-time contingencies, under the vast majority of 

scenarios, the affidavit is hearsay for which no exception can adequately be 

advanced. Accordingly, its use is precluded consistent with the discussion that 

follows.

II. LAW

“A motion in limine is a motion made prior to trial for the purpose of 

prohibiting opposing counsel from mentioning the existence of, alluding to, or 

offering evidence on matters so highly prejudicial to the moving party that a 

timely motion to strike or an instruction by the court to the jury to disregard the 

offending matter cannot overcome its prejudicial influence on the jurors’

minds.”1 “The standard of review for the admission or exclusion of evidence is 

generally abuse of discretion. If a party fails to preserve an evidentiary ruling, 

this Court reviews for plain error.”2

“In a trial by jury in a federal court, the judge is not a mere moderator, but 

is the governor of the trial for the purpose of assuring its proper conduct and of 

 

1

 O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 (5th Cir. 1977).

2

 Tourtellotte v. Eli Lilly & Co., No. 15-1090, 2016 WL 146455, at *16 (3d Cir. Jan. 13, 

2016).

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determining questions of law.”3 Accordingly, “[a]n abuse of discretion occurs 

only where the district court’s decision is ‘arbitrary, fanciful, or clearly 

unreasonable’—in short, where ‘no reasonable person would adopt the district 

court’s view.’”

4 The United States Court of Appeals for the Third Circuit “will 

not remand or reverse if the admission or exclusion of evidence constituted 

harmless error.”5 “An error is harmless only if it is highly probable that the 

error[ ] did not affect the outcome of the case.”6 “It is the province of the trial

judge to weigh any materiality against any prejudice and, unless the judge’s 

reading is ‘off the scale,’ his discretion is not abused.”7

III. ANALYSIS

A. The affidavit is hearsay under Federal Rule of Evidence 801(a)–(c).

The affidavit is hearsay because it is a “statement, other than one made by 

a declarant while testifying at the trial or hearing, offered in evidence to prove 

 

3

 Quercia v. United States, 289 U.S. 466, 469 (1933) (Hughes, C.J.).

4

 Green, 617 F.3d at 239 (quoting United States v. Starnes, 583 F.3d 196, 214 (3d 

Cir.2009)).

5

 Id.

6

 Id. (internal quotations omitted).

7 United States v. Shelley, 405 F.3d 1195, 1201 (11th Cir. 2005).

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the truth of the matter asserted.”

8 A hearsay statement is inadmissible because it 

is “inherently untrustworthy: the declarant may not have been under oath at the 

time of the statement, his or her credibility cannot be evaluated at trial, and he or 

she cannot be cross-examined.”

9

Federal Rule of Evidence 801’s definition of a “statement” encompasses a 

“written assertion” like the affidavit at issue here.10 Moreover, the affidavit is 

hearsay because it is offered to prove the truth of the matter asserted therein—

namely, that Mr. Ruley was the mastermind behind the instant drug distribution 

scheme and that Mr. Davis shared no involvement in the offense conduct.

Because the affidavit is hearsay under Rule 801, it is inadmissible at trial 

unless it meets one of the non-hearsay conditions or satisfies a hearsay exception. 

It does neither.11

 

8 United States v. Console, 13 F.3d 641, 656 (3d Cir. 1993).

9

Id.

10 Sours v. Glanz, 24 F. App’x 912, 912–14 (10th Cir. 2001). Accord Abraham v. 

Danberg, 832 F. Supp. 2d 368, 374–75 (D. Del. 2011).

11 Federal Rule of Evidence 802 deems hearsay inadmissible “unless [a Federal Rule of 

Evidence] provides otherwise.”

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B. The affidavit is not a non-hearsay statement of a co-conspirator 

under Federal Rule of Evidence 801(d)(2)(E).

Rule 801 enumerates certain types of statements that qualify as nonhearsay, provided that they satisfy a series of stated conditions. One such genre 

of non-hearsay statements is colloquially referred to as admissions by a party 

opponent. In certain circumstances, admissions by a party opponent can also 

include statements by co-conspirators. To qualify as non-hearsay under the coconspirator category, the statement must be “offered against an opposing party” 

and “made by the party’s coconspirator during and in furtherance of the 

conspiracy.”12 That provision does not apply here for several reasons.

First, the affidavit was not made “during and in furtherance of the 

conspiracy.” “[A] coconspirator’s statement is considered to be in furtherance of 

the conspiracy as long as it tends to promote one or more of the objects of the 

conspiracy.”

13 As the United States Court of Appeals for the Third Circuit has 

explained, “Statements between conspirators which provide reassurance, serve 

to maintain trust and cohesiveness among them, or inform each other of the 

 

12 Fed. R. Evid. 801(d)(2)(E).

13 United States v. Ciresi, 697 F.3d 19, 28 (1st Cir. 2012).

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current status of the conspiracy further the ends of the conspiracy and are 

admissible so long as the other requirements of Rule 801(d)(2)(E) are met.”

14 In 

contrast, however, statements by co-conspirators are not admissible if they 

amount to no “more than ‘mere narratives’ of past events.”

15 “Mere conversation 

between conspirators or merely narrative declarations are not admissible as 

declarations in furtherance of the conspiracy.”

16

Second, as to a conspiracy’s duration, the Third Circuit has stated that “a 

conspiracy is presumed to continue until its objective is achieved.”17 Therefore, a 

conspiracy may be deemed to have concluded when the co-conspirators are no 

longer “fully capable of carrying out their purpose.”18

In light of these definitions, it is evident that Mr. Ruley’s affidavit was 

written after the conspiracy had ceased and merely with the intent to allocate 

liability post hoc rather than to facilitate the needs of an ongoing enterprise.

 

14 United States v. Ammar, 714 F.2d 238, 252 (3d Cir. 1983).

15 Id.

16 United States v. Eubanks, 591 F.2d 513, 520 (9th Cir. 1979) (internal quotation marks 

omitted).

17 Id. at 253.

18 Id.

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Mr. Ruley and Mr. Davis were both incarcerated at the time the affidavit was 

written, and the conspiracy that allegedly bound them together had, for all 

intents and purposes, ceased by that time.

Moreover, the very impetus behind the party opponent rule is that an 

opposing party is unlikely to make later-binding statements that weigh against 

its own interests. Party admissions are therefore thought to be inherently 

truthful. That is why this non-hearsay rule requires that the contested statement 

be “offered against an opposing party.” Here, Mr. Davis seeks to introduce 

Mr. Ruley’s statement at trial not as against Mr. Ruley, but in support of his own 

defense. Mr. Davis’s strategy is one of exculpation rather than inculpation, a use 

that this non-hearsay rule does not expressly contemplate. As the Government 

notes, “The timing, content, background, and origin of the affidavit reveal 

therefore that the affidavit was nothing more than a self-serving attempt by 

Davis to deflect liability from himself.”

19

In addition, I also doubt the wisdom of relying on the co-conspirator 

prong of the party admission rule, where the subject co-conspirator has pled 

 

19 ECF No. 115 at 7.

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guilty and has been effectively terminated from the case by the time the 

contested statement is sought to be introduced. The incentives for the declarant

co-conspirator to vigorously rebut the statement at issue clearly no longer exist. 

Thus, I conclude that the statement does not fall within the category of 

admissible non-hearsay as an admission by a co-conspirator.

C. The affidavit is not excepted from the hearsay rule as a statement 

against interest under Federal Rule of Evidence 804(b)(3).

Because the statement is hearsay, I also consider whether it falls within any 

of the provided exceptions to the hearsay rules. Unlike the non-hearsay 

categories, the exceptions recognize that, in some limited circumstances, hearsay 

statements bear sufficient indicia of truthfulness so as to be properly admitted. 

The key exception that should be considered in this case is whether the affidavit 

qualifies as a statement against interests. It does not.

First, the statement against interest exception applies only to statements 

made by a declarant who is “unavailable as a witness” at the time of trial.20

Rule 804(a) sets forth five different criteria, each of which formally makes a 

witness “unavailable.” A potential invocation by Mr. Ruley of his Fifth 

 

20 Fed. R. Evid. 804(b).

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Amendment privilege against self-incrimination is the only pertinent category of 

unavailability for our purposes here.

As a threshold matter, the Court notes that it is authorized to conduct an in 

camera review of Mr. Ruley’s anticipated testimony to determine whether such 

testimony actually falls within the reach of that privilege. I am skeptical that 

much, if any, of Mr. Ruley’s testimony would be covered by that privilege, as 

Mr. Ruley has already pled guilty and is presumably unlikely to face perjury 

charges based upon the falsified affidavit.

Nevertheless, even assuming Mr. Ruley’s “unavailability,” the affidavit 

fails to satisfy the substantive requirements of the statement against interest 

exception. Federal Rule of Evidence 804(b)(3), entitled “Statement against 

Interest,” provides that a statement of an unavailable witness that would 

otherwise constitute hearsay is admissible if:

(A) a reasonable person in the declarant’s position would have 

made only if the person believed it to be true because, when 

made, it was so contrary to the declarant’s proprietary or 

pecuniary interest or had so great a tendency to invalidate the 

declarant’s claim against someone else or to expose the 

declarant to civil or criminal liability; and

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(B) is supported by corroborating circumstances that clearly 

indicate its trustworthiness, if it is offered in a criminal case as 

one that tends to expose the declarant to criminal liability.

The so-called “Affidavit of Truth” fails both prongs. First, the statement is 

not the kind that a reasonable person would have made “only if the person 

believed it to be true.” A valid and competing motivation for the affidavit is that 

Mr. Ruley was pressured to take the fall by a co-conspirator who faced more 

significant penalties due to a more extensive criminal history.21

Second, the affidavit is inherently untruthful. “Where the statement is 

offered to exculpate the accused in a criminal trial, it must be supported by 

corroborating circumstances that clearly indicate its trustworthiness.”

22 ”We 

assess corroboration in light of the totality of circumstances.”

23As the Third 

Circuit has previously held, a statement against interest does not evidence 

 

21 See ECF No. 115 at 3 (“According to the Pretrial Services Report, Ruley, age 25, has 

multiple arrests, but no convictions. In contrast, Davis, age 39, has multiple 

convictions, including a prior felony drug distribution offense which has the effect 

of doubling the mandatory minimum prison term to 10 years and increasing the 

maximum penalty to life imprisonment.”).

22 United States v. Caldwell, 760 F.3d 267, 289 (3d Cir. 2014) (Smith, J.) (internal 

quotation marks omitted).

23 Id.

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sufficient trustworthiness if it is the product of a “self-serving attempt[ ] to 

deflect criminal liability.”24

At his change of plea hearing, Mr. Ruley admitted the following facts:

Following the return of the indictment on January 14, 2016, Ruley 

and Davis were in custody together at the Columbia County Prison. 

While in custody with Davis, Ruley signed a so-called “Affidavit of 

Truth.” The affidavit, dated March 3, 2016, was prepared and 

written by Davis for Ruley to sign. The affidavit falsely stated that 

there never was any agreement between Davis and Ruley to 

distribute drugs to anyone and that Davis was not involved in any 

way with drug activity.25

In addition, recorded prison calls obtained by investigators allegedly captured 

Mr. Ruley telling his mother that Mr. Davis’s plan that the former would take full 

responsibility for the instant charges was “a no go.”26 Consequently, the 

circumstances of the so-called “Affidavit of Truth,” are such that it is has been 

entirely drained of credibility. 27 Whatever worth it once had, Mr. Ruley’s plain

 

24 United States v. Mussare, 405 F.3d 161, 168 (3d Cir. 2005) (Cowen, J.). See also

25 ECF No. 115 at 4.

26 Id. at 2–3.

27 See, e.g., Caldwell, 760 F.3d at 290 (“Finally, Tigney’s account changed on multiple 

occasions, with him ultimately recanting his admission to defense investigators. 

Given these circumstances, we hold that the District Court did not abuse its 

discretion in excluding Tigney’s statements because the totality of the circumstances 

support its conclusion that the confession lacked the indicia of trustworthiness 

required by Rule 804(b)(3)”).

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explanation as to the deceptive motive behind the affidavit renders it 

inadmissible as a statement against interest.

D. The affidavit does not satisfy Federal Rule of Evidence 807’s 

“Residual Exception.”

For reasons similar to those set forth above, the affidavit cannot come 

within Rule 807’s “residual exception.” That exception requires that the 

contested statement have “equivalent circumstantial guarantees of 

trustworthiness.” Because the factual circumstances as outlined above render the 

affidavit inherently untrustworthy, it does not meet the residual exception. 

E. In limited circumstances, the affidavit may be used impeach 

Mr. Ruley as a witness under Federal Rule of Evidence 613. Such 

use would open the door to the Government’s introduction of Mr. 

Ruley’s plea colloquy and other rebuttal evidence.

If Mr. Ruley testifies at trial and implicates Mr. Davis, Federal Rule of 

Evidence 613 provides that he may be questioned about prior inconsistent 

statements, such as his denial that Mr. Davis shared any involvement in the 

instant offense conduct. However, to the extent that extrinsic evidence of those 

prior inconsistent statements—namely, the affidavit at issue here—is sought to 

be introduced, that same rule also requires that the opposing party be “given an 

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opportunity to examine the witness about it.”28 Accordingly, the Court considers 

it axiomatic that in such a circumstance, the Government would be permitted to 

introduce the substance of Mr. Ruley’s plea colloquy and his jailhouse calls, and 

to otherwise challenge the veracity of the affidavit. 

IV. CONCLUSION

Accordingly, the Defendant’s Motion in Limine to permit introduction of 

the “Affidavit of Truth” at trial is denied. The affidavit is excluded consistent 

with the foregoing discussion.

An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

 

28 Note that the affidavit does not qualify as a non-hearsay prior inconsistent statement 

under Federal Rule of Evidence 801(d)(1)(A), as it was not “given under penalty of 

perjury at a trial, hearing, or other proceeding or in a deposition.” Thus, the affidavit 

may be used solely for impeachment purposes and not as substantive evidence, even

if presented extrinsically. Should this circumstance arise, the Court would issue an 

appropriate limiting instruction at that time and as part of the jury charge.

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