### The Honorable Charles R. Wolle, Chief Judge, United State s 1 

### District Court for the Southern District of Iowa. ___________ No. 96-1135

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the
* Southern District of Iowa. Billy Joe Worley, Jr., * * Appellant. *

___________ Submitted: May 14, 1996 Filed: July 8, 1996

___________ Before MORRIS SHEPPARD ARNOLD, Circuit Judge, HEANEY and HENLEY, Senio r Circuit Judges.

___________ HENLEY, Senior Circuit Judge.

Billy J oe Worley, Jr. appeals from an order of the district court 1 denying his motion fo r 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 approx imately 5:30 a.m. on May 17, 1995, Worley and Rhonda McGee arrived at the Heartl and Inn motel seeking a room. Sean Hickey, the desk attendant, asked Worley for a credit card and identification. After Worle y placed his briefcase on the counter and opened t he lid, Hickey saw what he believed to be a handgun. Although he was "scared," Hickey had Worley fil l out the registration card and gave him a key to a room. However, Hickey

### -2-

telephoned the police and told an officer that he believed Worley had a gu n in his briefcase. Hickey also told Tracy Sahl, the desk attendant wh o 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 o r 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 prese nce, but received no response. They then opened the door with a passkey and awakened Worley, who was alone in the room. The officers explained th at the desk attendant thought he had a gun and might have harmed himself or someone else. Worley den ied having a gun, but told the officers he might have a lighter in his briefcase that looked like a gun. T he officers asked if Worley could show them the lighter. Worle y looked through the briefcase for two or three minutes but could not find anything that looked like a gun. Officer Huber then searched the briefcas e and found a .22 caliber Derringer handgun. Worley denied being a felon an d 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. Sh e 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 s he 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 tha t 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 an d Worley in the motel room on May 17, that Hall had the

### -3-

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 t he 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 Wor kman, who had been in jail with Worley, and Stev e Shaffer. Workman stated that after the conviction Hall told him that sh e had planted the gun in Worley's briefcase and that he was aware of other instances when Hall had planted guns. Shaffer state d that Hall had told him on the day of the arrest that she had planted the gun in Wor ley's briefcase and that he knew Hall had planted a gun i n another person's briefcase.

After a h earing, 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 t o deny a moti on for a new trial only if there is a clear abuse o f discretion." Id. In this case, the district court - which "is in the bes t 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 ma tter asserted, and not for impeachment, the statements are inadmissible hea rsay. In United States v. Menard , 9 39 F.2d 599, 600 (8th Cir. 1991) (per curiam), this court hel d that a district court did not abuse its discreti on 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 ] 2 

### statement tending to expose the declarant to criminal liabil ity and offered to exculpate the accused is not admissible unles s corroborating circumstances clearly indicate the trustworthi ness of the statement." See United States v. Mendoza , No. 95-3572, sli p op. at 8-9 (8th Cir. June 11, 1996) (discussing requirements o f admissibility under Rule 804(b)(3)).

Fed. R. Evid. 607, 608, and 609 provide in certai n 3 

### circumstances character evidence may be used to impeach a wi tness's credibility.
-4- We explained that the statements were inadmissible not only under Fed. R. Evid. 801 and 802, bu t also were inadmissible as statements against penal inte rest under Rule 804(b)(3), because there was no showing that th e dec larant was unavailable and no "corroborating circumstances clearl y indicat[ing] the trustworthiness of [the] statements," as the rul e required. Id. Likewise in this case, even assuming Hall's un availability 2 within the meaning of subsection (a) of Rule 804, there are n o "corroborating circumstances clearly indicating the trustworthiness" of he r alleged st atements to Workman and Shaffer. See also United States v

. Mackin , 561 F.2d 958, 962 (D.C. Cir.) (probation officer's affidavi t stating that government witness had told him she committed perjury a t defend ant's trial inadmissible under Rule 804(b)(3) because of lack o f corroborating circumstances), cert. denied , 434 U.S. 959 (1977). Moreover , the affiants' statements regarding Hall's alleged penchant for plantin g guns would also be inadmissible as substantive evidence under Fed. R. Evid

. 404(a), which provides that "[e]vidence of a per son's character or a trait of charac ter is not admissible for the purpose of proving action i n conformity therewith on a particular occasion." 3

In any event, even if the information in the affidavits wer e admissible, we agree with the district court that it probably would no t produce an acquittal on retrial. As the distric t court noted, in addition to Hall's testimony that she gave the gun to Worley, other evidence a t trial demonstrated that Worley knowingly

### Johnson upheld convictions for use of fir earms in relation to 4 

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

. To th e extent that the case upheld the convictions based on th e 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. 5 01 (1995). Rejecting the "proximity and accessibility test," in Bailey the Supreme Court held tha t "use" under section 924(c)(1) means "active employment" of a firearm. Id. at 505.
-5- 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 coul d see the gun when Worl ey opened his briefcase at the time of registration, but also from Worley's own statement to the arre sting 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 tha t defendant did not kno w gun was present at house because affiant owned gun and concealed it with out defendant's knowledge probably would not produce acquit tal of firearm conviction in view of trial evidence demonstratin g defendant knowingly possessed gun), c ert. 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.