The Honorable Charles R. Wolle, Chief Judge, United States

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District Court for the Southern District of Iowa.

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No. 96-1135

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Southern District of Iowa.

Billy Joe Worley, Jr., *

*

Appellant. *

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 Submitted: May 14, 1996

 Filed: July 8, 1996

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Before MORRIS SHEPPARD ARNOLD, Circuit Judge, HEANEY and HENLEY, Senior

Circuit Judges.

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HENLEY, Senior Circuit Judge.

 Billy Joe Worley, Jr. appeals from an order of the district court1

denying his motion for a new trial after a jury found him guilty of being

a felon in possession of a weapon, in violation of 18 U.S.C. § 922(g). We

affirm.

At approximately 5:30 a.m. on May 17, 1995, Worley and Rhonda McGee

arrived at the Heartland Inn motel seeking a room. Sean Hickey, the desk

attendant, asked Worley for a credit card and identification. After Worley

placed his briefcase on the counter and opened the lid, Hickey saw what he

believed to be a handgun. Although he was "scared," Hickey had Worley fill

out the registration card and gave him a key to a room. However, Hickey
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telephoned the police and told an officer that he believed Worley had a gun

in his briefcase. Hickey also told Tracy Sahl, the desk attendant who

relieved him at 7:00 a.m., about the gun. When Worley did not check out

by the 11:00 a.m. check-out time and did not answer telephone calls or

awaken when two motel employees went into his room and saw him apparently

asleep on the bed, Sahl called the police. Officers Danny Middleton and

Eric Huber responded. They went to Worley's room, knocked on the door and

announced their presence, but received no response. They then opened the

door with a passkey and awakened Worley, who was alone in the room. The

officers explained that the desk attendant thought he had a gun and might

have harmed himself or someone else. Worley denied having a gun, but told

the officers he might have a lighter in his briefcase that looked like a

gun. The officers asked if Worley could show them the lighter. Worley

looked through the briefcase for two or three minutes but could not find

anything that looked like a gun. Officer Huber then searched the briefcase

and found a .22 caliber Derringer handgun. Worley denied being a felon and

denied that the gun was his, claiming it belonged to a female friend who

had been with him at the motel. After determining that Worley was a felon,

the officers placed him under arrest.

At trial, in addition to the officers' and motel employees'

testimony, the government presented the testimony of Kristi Hall. She

testified that in April 1995, pursuant to Worley's request, she purchased

the seized Derringer and gave it to Worley. On direct examination, Hall

testified that when she first talked to investigating agents she had lied

about purchasing the gun for Worley and admitted that she had been granted

immunity in exchange for her truthful testimony. Hall also stated that

Worley had asked her to "get him off" by falsely testifying that she was

with him at the motel on May 17 and had the gun. 

In Worley's defense, McGee testified that Hall was with her and

Worley in the motel room on May 17, that Hall had the
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Derringer, and that Hall was alone with Worley after McGee left the room

at about 9:30 a.m. On cross-examination, McGee admitted that she had been

convicted of forgery and theft.

After the jury found Worley guilty of being a felon in possession,

Worley filed a motion for a new trial based on newly discovered evidence.

In support, he attached affidavits of Ronald Workman, who had been in jail

with Worley, and Steve Shaffer. Workman stated that after the conviction

Hall told him that she had planted the gun in Worley's briefcase and that

he was aware of other instances when Hall had planted guns. Shaffer stated

that Hall had told him on the day of the arrest that she had planted the

gun in Worley's briefcase and that he knew Hall had planted a gun in

another person's briefcase.

After a hearing, the district court denied the motion, finding that

the alleged new evidence was merely impeaching, cumulative, and probably

would not produce an acquittal. See United States v. Ireland, 62 F.3d 227,

230 (8th Cir. 1995). "We will reverse the district court's decision to

deny a motion for a new trial only if there is a clear abuse of

discretion." Id. In this case, the district court - which "is in the best

position to determine the impact evidence will have upon the jury" - did

not abuse its discretion. Id. at 230-31. 

On appeal Worley argues that the information in the affidavits is not

merely impeaching or cumulative, but is substantive evidence that he did

not knowingly possess the gun. If Hall's statements that she had planted

the gun are offered to prove the truth of the matter asserted, and not for

impeachment, the statements are inadmissible hearsay. In United States v.

Menard, 939 F.2d 599, 600 (8th Cir. 1991) (per curiam), this court held

that a district court did not abuse its discretion in denying a motion for

a new trial based on affidavits of family members and defendant's counsel

stating that defendant's brother told them he had shot the victim. 
 Rule 804(b)(3) provides, in relevant part, that "[a]

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statement tending to expose the declarant to criminal liability and

offered to exculpate the accused is not admissible unless

corroborating circumstances clearly indicate the trustworthiness of

the statement." See United States v. Mendoza, No. 95-3572, slip

op. at 8-9 (8th Cir. June 11, 1996) (discussing requirements of

admissibility under Rule 804(b)(3)). 

 Fed. R. Evid. 607, 608, and 609 provide in certain

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circumstances character evidence may be used to impeach a witness's

credibility.

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We explained that the statements were inadmissible not only under Fed. R.

Evid. 801 and 802, but also were inadmissible as statements against penal

interest under Rule 804(b)(3), because there was no showing that the

declarant was unavailable and no "corroborating circumstances clearly

indicat[ing] the trustworthiness of [the] statements," as the rule

required. Id. Likewise in this case, even assuming Hall's unavailability 2

within the meaning of subsection (a) of Rule 804, there are no

"corroborating circumstances clearly indicating the trustworthiness" of her

alleged statements to Workman and Shaffer. See also United States v.

Mackin, 561 F.2d 958, 962 (D.C. Cir.) (probation officer's affidavit

stating that government witness had told him she committed perjury at

defendant's trial inadmissible under Rule 804(b)(3) because of lack of

corroborating circumstances), cert. denied, 434 U.S. 959 (1977). Moreover,

the affiants' statements regarding Hall's alleged penchant for planting

guns would also be inadmissible as substantive evidence under Fed. R. Evid.

404(a), which provides that "[e]vidence of a person's character or a trait

of character is not admissible for the purpose of proving action in

conformity therewith on a particular occasion."3

In any event, even if the information in the affidavits were

admissible, we agree with the district court that it probably would not

produce an acquittal on retrial. As the district court noted, in addition

to Hall's testimony that she gave the gun to Worley, other evidence at

trial demonstrated that Worley knowingly
 Johnson upheld convictions for use of firearms in relation to 4

drug trafficking offenses in violation of 18 U.S.C. § 924(c)(1).

To the extent that the case upheld the convictions based on the

mere proximity and availability of firearms found in houses where

drugs were dealt, it is of questionable validity in light of United

States v. Bailey, 116 S. Ct. 501 (1995). Rejecting the "proximity

and accessibility test," in Bailey the Supreme Court held that

"use" under section 924(c)(1) means "active employment" of a

firearm. Id. at 505.

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possessed the gun. A reasonable juror could infer that Worley knew that

the gun was in his briefcase not only from Hickey's testimony that he could

see the gun when Worley opened his briefcase at the time of registration,

but also from Worley's own statement to the arresting officers that he had

something in the briefcase that looked like a gun. See United States v.

Johnson, 12 F.3d 827, 833-34 (8th Cir.) (affiant's statement that

defendant did not know gun was present at house because affiant owned gun

and concealed it without defendant's knowledge probably would not produce

acquittal of firearm conviction in view of trial evidence demonstrating

defendant knowingly possessed gun), cert. denied, 114 S. Ct. 1860 (1994).4

Accordingly, we affirm the judgment of the district court. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.