Phillips never possessed the gun and in two others she indicated that he did possess the gun. One
of the latter statements was made under oath before a Grand Jury after Whitehead was fully
advised that she could be prosecuted for perjury if she lied. This weighs heavily against a finding
that the contrary statements are trustworthy. See United States v. Moore, 936 F.2d 1508, 1517
(7" Cir. 1991) (holding that the trial court did not err in finding that unsworn post-arrest
statement lacked trustworthiness where declarant recanted much of the statement under oath
during a court proceeding). The fact that Whitehead later recanted her Grand Jury testimony,
claiming that the Assistant United States Attorney threatened to take away her children if she did
not lie, may cast some doubt on the trustworthiness of the Grand Jury testimony, but it is
insufficient to shift the balance in favor of a finding that her statements contrary to that testimony
are trustworthy.

Furthermore, Phillips is the father of one of Whitehead’s children. The Seventh Circuit
has held that a close relationship between the declarant and the defendant weighs against a
finding of corroborating circumstances. United States v. Silverstein, 732 F.2d 1338, 1346 (7* Cir.
1984). The court explained that the corroboration requirement of Rule 804(b)(3) reflects the
long-standing concern that “a criminal defendant might get a pal to confess to the crime the
defendant was accused of, the pal figuring that the probability of his actually being prosecuted
either for the crime or for perjury was slight.” Id. This concer is clearly present here, given that
Whitehead explained to ATF agents on May 6, 2003, that she initially had lied about Phillips
never possessing the gun to protect Philips and that she believed, given the nature of her criminal
background, that she would get into less trouble than Phillips if she claimed the gun was hers.

Finally, Chicago Police Officer James Burke claims that he saw Phillips in possession of


Federal Rule of Evidence 804(b)(3). This rule permits hearsay testimony to be admitted at trial if
the declarant is unavailable as a witness and the statement, at the time of its making,

so far tended to subject the declarant to civil or criminal liability, . . . that a reasonable

person in the declarant’s position would not have mad the statement unless believing it to

be true. A 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.
In United States v. Garcia, 897 F.2d 1413 (7" Cir. 1990), the Seventh Circuit set forth a three-
part test for determining the admissibility of a statement under Rule 804(b)(3). “A court must
find that, (1) the declarant’s statement was against the penal interest of the declarant, (2)
corroborating circumstances indicate the trustworthiness of the statement, and (3) the declarant
must be unavailable.” Jd. at 1420.

The parties agree that the statements Phillips seeks to introduce are against Whitehead’s
penal interest under the first prong of the Garcia test. Furthermore, because Whitehead has
advised the court that she would invoke her Fifth Amendment right against self-incrimination if
called to testify, she is “unavailable” to testify under the third prong of the Garcia test. See
Garcia, 897 F.2d at 1420. Thus, the issue before the court is whether corroborating
circumstances indicate the trustworthiness of the statements.

Whitehead’s December 7, 2002, statement is ambiguous. Her claim that the gun was hers
in no way excludes the possibility that Phillips possessed the gun. Ownership and possession are
wholly distinct concepts. Furthermore, Whitehead stated that “they” were taking the gun to sell

it for drugs. This statement further undermines any attempt to draw a conclusion about which of

the two possessed the gun.

Of the remaining four statements at issue, in two of them Whitehead indicated that


the gun. This further undermines the trustworthiness of Whitehead’s statements that Phillips
never possessed the gun.

The court finds no corroborating circumstances that “clearly indicate” the trustworthiness
of Whitehead’s statements. FRE 804(b)(3) (emphasis added). Thus, the court grants the
government’s motion in limine to exclude the statements of Kimmie Whitehead.

CONCLUSION
For the reasons stated above, the court grants the government’s motion in limine to

exclude the statements of Kimmie Whitehead [#43].

Bate. cleo —
IOAN HUMP! YY LEFKOW

United States District Judge
Dated: January 10, 2005


Minute Order Form (0697)

United States District Court, Northern District of Mlinois

(10)

na egleate jaa Joan H. Lefkow thant Asshesed Sedge
CASE NUMBER 03 CR 465 DATE 1/10/2005
CASE USA vs. Phillips
TITLE
{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]
DOCKET ENTRY:
QQ) o Filed motion of [ use listing in “Motion” box above.)
(2) Q Brief in support of motion due ___.
3) Qa Answer brief to motion due. . Reply to answer brief due.
(4) a Ruling/Hearingon____—ssetfor__—_at.
(5) D0 Status hearing[held/continued to] [set for/re-set for]on__—ssetfor__—s—s at.
© Qa Pretrial conference[held/continued to] (set for/re-set for]on___setfor__—ss— at.
(7) 0 Trial[set for/re-set for]on___—sat__.
(8) oO (Bench/Jury trial] [Hearing] held/continued to____—_at
0 a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

COFRCP4(m) OLocal Rule 41.1 OFRCP41(a\1) OFRCP41(aX2).

a (Other docket entry) | Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, Government’s motion in limine to exclude the statements of Kimmie

Whitehead [#43] is granted.

ai) {For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

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Copy to judge/magistrate judge.

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA )
)
ve ) No. 03 CR 465
) Judge Joan H. Lefkow
RICKY PHILLIPS, ) D
)
Defendant. ) OCKE Ti £0

JS
NTT 2005
MEMORANDUM OPINION AND ORDER

The government has filed a motion in limine seeking to exclude the purported third party
confession of witness Kimmie Whitehead (“Whitehead”), which defendant, Ricky Phillips
(“Phillips”), has indicated he will seek to admit at trial. For the reasons stated below, the motion
is granted.

Phillips is charged with being a felon in possession of a firearm. On December 7, 2002,
Whitehead, who was arrested with Phillips and informed of her Miranda rights, was in an
interview room along with other individuals arrested in other cases and various police officers.
Chicago Police Officer Darlene Rodriguez, who was in the interview room, overheard Whitehead
state that the gun in question was hers, that she had gotten the gun from her uncle, and that
“they” were taking the gun to sell it for drugs. According to Officer Rodriguez, Whitehead was
not speaking to any officer and was not being questioned when she made the statement.

On May 2, 2003, agents of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”)
interviewed Whitehead. At that time, Whitehead claimed that the gun was in her possession at
all times and that Phillips was wholly unaware of the firearm until after their arrest.

On May 6, 2003, during an interview in the United States Attorneys’ offices, after first


repeating the story she had given to the ATF agents on May 2, 2003, Whitehead stated that she
lied during the May 2 interview and that Phillips did in fact possess the gun. Whitehead stated
that she had lied to protect Philips, who is the father of one of her children, and that she believed,
given the nature of her criminal background, that she would get into less trouble than Phillips if
she claimed the gun was hers.

Also on May 6, 2003, Whitehead testified before the Special 2002-1 Grand Jury.
Whitehead was fully advised of her rights prior to her testimony and acknowledged that anything
she said could be used against her and that she was under oath and could be prosecuted for
perjury if she lied during her testimony before the grand jury. Whitehead testified that she,
Phillips, and Kevin Bell were riding in a car together on the evening of the arrest. When they
were stopped by the police, Phillips handed the gun to Whitehead and told her to hide it.
Whitehead testified that she and Phillips then got out of the car, knocked the police officer down,
and ran to a nearby building where they climbed to the roof. Whitehead testified that, once on
the roof, Phillips hid the gun under a vent. She testified that she did not remember exactly when
she gave Phillips back the gun because she had taken drugs that day and did not recall] all of the
details of what happened.

On October 8, 2004, ATF agents again interviewed Whitehead. This time, Whitehead
told the agents that Phillips had never had possession of the firearm, either on or off the roof of
the building and that the prosecutor had coerced her to lie to the Grand Jury by threatening to
take away her children.

Phillips has indicated that he will seek to introduce Whitehead’s statements from

December 7, 2002, May 2, 2003, and October 8, 2004 as declarations against interest under