January 6, 2016
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:14-CR-68 -
Hon. Jon E. DeGuilio, Judge.
Posner and Williams, Circuit Judges, and Pallmeyer, District
Pallmeyer, District Judge.
Hayden, a federal probationer, engaged in an armed battle
with police on April 9, 2012. One officer was injured in the
gun fight, and Hayden himself was shot and killed. The
government recovered the firearm Hayden used and has charged
Defendant Maurice Moore with selling that weapon to Hayden, a
known felon, and falsely reporting that the weapon was
stolen. In Moore's upcoming trial, the government seeks
to introduce evidence of a phone number Hayden had provided
his probation officer. Moore made several calls to that
number in the hours surrounding the purported theft of the
firearm. The district judge has granted Moore's motion to
exclude the probation officer's records as inadmissible
hearsay. We conclude, however, that the records are
admissible under the residual hearsay exception, Fed.R.Evid.
807, and therefore vacate the district court's order.
enforcement officers attempted to serve a warrant on federal
probationer Marcus Hayden on April 9, 2012. A gun fight
ensued, leaving Hayden dead and one officer injured. Using
the serial number of the gun they recovered from Hayden,
officers quickly identified the firearm as registered to
Defendant Maurice Moore. Moore had reported the gun, a Glock,
stolen from his car on March 2, 2012. In an interview with
agents from the Bureau of Alcohol, Tobacco, Firearms, and
Explosives on April 10, 2012, Moore acknowledged that he knew
Hayden but said the two were not at all close.
to the government, additional investigation revealed that
Moore had a stronger connection to Hayden than he let on. At
approximately 4:30 p.m. on March 2, 2012, Moore purchased a
new gun (this one a Ruger) from a store in Fort Wayne,
Indiana. Roughly thirty minutes later, he claims to have
discovered his older weapon, the Glock, had been stolen. He
called the Fort Wayne police department to report the theft
at 5:30 p.m. Shortly thereafter, he filed a sto-len-property
report at a nearby precinct, but could not recall the
Glock's serial number. He called the station at
approximately 8:00 p.m. to provide the number. Before,
during, and after these events on March 2, Moore's phone
placed and received numerous calls to and from a number
ending in 9312 ("the 9312 number").
government believes Hayden was on the other end of those
calls. The government seeks to offer evidence that Hayden
identified the 9312 number as his cell phone number on a
supervision report he filed with his probation officer in
February 2012. The report notes,
as well, that Hayden admitted to having recently smoked
marijuana. In signing the form, Hayden "certif[ied] that
all information furnished is complete and correct."
There is no evidence that any probation officials ever
reached Hayden using the 9312 number, but other circumstances
support the conclusion that it was his: Hayden supplied his
probation officer with a new cell number, this one ending in
6466 ("the 6466 number"), on March 22, 2012. A
Deputy United States Marshal reached Hayden at this number
sometime before his death. Phone records indicate that
Moore's phone ceased communicating with the 9312 number
on March 7, 2012. Mere hours after the final call between the
two, Moore's phone received a text from the 6466 number
for the first time. Many more calls be- tween Moore's
phone and the 6466 number occurred in the weeks that
jury returned a three-count indictment against Moore in July
2014. Shortly before the scheduled trial date, the government
notified Moore of its intent to introduce Hayden's
monthly supervision reports and notes kept by Hayden's
probation officer (collectively, "the Reports").
Moore moved to exclude the Reports on hearsay grounds. Over
the government's objection, the court sided with Moore
and excluded the Reports for the purpose of
"establish[ing] that the numbers actually belonged to
Hayden." This timely interlocutory appeal followed.
appeal, the government argues that Hayden's telephone
number is admissible on three separate theories: (1) as
hearsay admissible under the business-records exception,
Fed.R.Evid. 803(6); (2) as hearsay admissible under the
so-called "residual exception, " Fed.R.Evid. 807;
and (3) as non-hearsay for the limited purpose of
establishing a connection between Hayden and
Moore. We turn first to the
government's Rule 807 argument, as it proves dispositive.
See United States v. Dumeisi, 424 F.3d 566, 577 (7th
review the district court's decision to exclude evidence
for an abuse of discretion, but we review its interpretation
of the rules de novo. United States v. Rogers, 587
F.3d 816, 819 (7th Cir. 2009). Trial courts have a
"considerable measure of discretion" in determining
whether evidence should be admitted under Rule 807.
United States v. Sinclair, 74 F.3d 753, 758 (7th
Cir. 1996) (quoting Doe v. United States, 976 F.2d
1071, 1076 (7th Cir. 1992)). Accordingly, we will reverse
"only where the trial court committed a clear and
prejudicial error." Id. at 758 (internal
quotation marks omitted).
proponent of hearsay evidence must establish five elements in
order to satisfy Rule 807: "(1) circumstantial
guarantees of trustworthiness; (2) materiality; (3) probative
value; (4) the interests of justice; and (5) notice."
United States v. Ochoa, 229 F.3d 631, 638 (7th Cir.
2000) (citing United States v. Hall, 165 F.3d 1095,
1110 (7th Cir. 1999)). Moore concedes that the evidence in
question is material and has never objected that he was given
insufficient notice or that Hayden's statements are not
highly probative. The district court's determination that
the Reports would not serve the interests of justice relied
exclusively on its conclusion that the statements contained
therein were not trustworthy.
purposes of assessing the trustworthiness of a hearsay
statement under Rule 807, this court, in Snyder,