Appellate Case: 23-2011 Document: 010110956444 Date Filed: 11/21/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 21, 2023 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 23-2011
STACEY YELLOWHORSE,
Defendant - Appellee. ___________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:20-CR-01566-DHU-2) _________________________________________
Emil John Kiehne, Assistant United States Attorney, Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexico (Alexander M.M. Uballez, United States Attorney, with him on the briefs), for Plaintiff-Appellant.
Carey C. Bhalla, Rothstein Donatelli, Albuquerque, New Mexico, for Defendant-Appellee. __________________________________________
Before HOLMES, BACHARACH, and EID, Circuit Judges. ___________________________________________
BACHARACH, Circuit Judge. ___________________________________________
Although hearsay is generally inadmissible, an exception exists for
statements that are self-inculpatory. Fed. R. Evid. 802, 804(b)(3). But how Appellate Case: 23-2011 Document: 010110956444 Date Filed: 11/21/2023 Page: 2
do we apply this exception when a statement incriminates not only the
declarant but also a third-party? The district court answered this question
by treating any references to a third-party’s participation in the crime as
outside the exception. In our view, the district court’s approach contradicts
our precedent.
1. Mr. Chischilly confessed to his family that he and Ms. Yellowhorse had killed a woman.
The issue arose when Mr. Timothy Chischilly gathered five relatives
to get something “off his chest.” Appellant’s App’x vol. II, at 173. To the
shock of the relatives, Mr. Chischilly confessed that he and his girlfriend,
Ms. Yellowhorse, had killed a woman.
The relatives told law enforcement about Mr. Chischilly’s
confession, and the accounts were largely consistent. They said that
Mr. Chischilly had admitted that
he held the woman down while Ms. Yellowhorse bludgeoned the woman with a sledgehammer or mallet and
he and Ms. Yellowhorse pinned the woman down with nails and a hammer.
Mr. Chischilly added that after the killing, he and Ms. Yellowhorse burned
the body.
Authorities later found parts of the woman’s skeletal remains
“charred and fragmented” in various locations, including a fire pit next to
Mr. Chischilly’s house. Appellant’s App’x vol. III, at 426, 428, 433.
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According to a forensic report, two nails lay close to the woman’s remains
and matched a hole in her skull. But most of her facial bones were missing.
2. The government seeks to use Mr. Chischilly’s statements in Ms. Yellowhorse’s trial.
Despite confessing to the murder, Mr. Chischilly pleaded not guilty.
That plea led the district court to set Mr. Chischilly’s trial after
Ms. Yellowhorse’s.
At Ms. Yellowhorse’s upcoming trial, the government wants
Mr. Chischilly to testify about what he told his relatives. Because his
statements were self-incriminating, however, the government expects
Mr. Chischilly to invoke the Fifth Amendment if he is called as a witness.
So the government asked the district court to allow the relatives to testify
at Ms. Yellowhorse’s trial about three of Mr. Chischilly’s statements:
1. He and Ms. Yellowhorse killed the woman.
2. Ms. Yellowhorse used a sledgehammer or mallet to bludgeon the woman.
3. Mr. Chischilly and Ms. Yellowhorse burned the body after the killing.
3. The hearsay exception applies only if Mr. Chischilly’s statements harmed his penal interest and had corroboration.
Mr. Chischilly made his admissions outside of court, and the
government wants to use them for the truth of the matters asserted (that
Mr. Chischilly and Ms. Yellowhorse killed the woman and burned the
body). So Mr. Chischilly’s statements to his relatives would ordinarily
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constitute inadmissible hearsay. See Fed. R. Evid. 801(c) (defining
hearsay); Fed. R. Evid. 802 (stating that hearsay is inadmissible in the
absence of an exception).
An exception exists when declarants make out-of-court statements
that harm their own penal interests. Fed. R. Evid. 804(b)(3). This hearsay
exception “is founded on the commonsense notion that reasonable people,
even reasonable people who are not especially honest, tend not to make
self-inculpatory statements unless they believe them to be true.”
Williamson v. United States, 512 U.S. 594, 599 (1994).
The party seeking introduction of a self-inculpatory, out-of-court
statement must establish three elements:
1. The declarant is unavailable.
2. The statement is against the declarant’s penal interest.
3. Corroborating circumstances sufficiently and clearly indicate the trustworthiness of the statement.
United States v. Lozado, 776 F.3d 1119, 1122 (10th Cir. 2015).
4. The district court excludes parts of Mr. Chischilly’s statements because they referred to Ms. Yellowhorse.
The district court found unavailability 1 and corroboration. But the
district court concluded that the statements about Ms. Yellowhorse’s
1 The district court found unavailability based on an expectation that Mr. Chischilly would avoid incriminating himself by refusing to testify. Ms. Yellowhorse argues that the government could force Mr. Chischilly to
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participation would not have harmed Mr. Chischilly’s penal interest. Based
on this conclusion, the court paraphrased the relatives’ expected testimony
and struck through the inadmissible parts:
1. Mr. Chischilly’s statement that he and Ms. Yellowhorse killed the woman,
2. Mr. Chischilly’s statement that Ms. Yellowhorse used a sledgehammer or mallet to bludgeon the woman, and
3. Mr. Chischilly’s statement that he and Ms. Yellowhorse burned the body after the fact. 2
Appellant’s App’x vol. I, at 142.
The government argues that the district court applied the wrong test
by assuming that Mr. Chischilly’s statements about Ms. Yellowhorse’s
involvement were not self-inculpatory. Ms. Yellowhorse disagrees, adding
that the excluded parts were also inadmissible because the court shouldn’t
have found corroboration.
testify by offering use immunity. But Ms. Yellowhorse doesn’t question Mr. Chischilly’s unavailability. So we need not address Ms. Yellowhorse’s argument that the government could offer use immunity to Mr. Chischilly. Cf. United States v. Lang, 589 F.2d 92, 95–97 (2d Cir. 1978) (stating that a declarant was unavailable under Rule 804(b)(3) even if the government could have offered use immunity). 2 The district court allowed the government to use two other types of statements that Mr. Chischilly had made: (1) that he held the woman down and (2) that he used a hammer and nail to pin the woman down. The parties don’t address the admissibility of these statements.
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5. The district court applied the wrong test by treating anything about Ms. Yellowhorse’s involvement as outside the hearsay exception.
In addressing the government’s challenge, we consider whether the
district court abused its discretion. United States v. Smalls, 605 F.3d 765,
767 (10th Cir. 2010). A district court abuses its discretion by making an
error of law. Id. at 773.
A. Statements incriminating someone else may be self- inculpatory.
Under the hearsay exception, the court considers whether the
statement inculpates the declarant. Williamson v. United States, 512 U.S.
594, 599 (1994). To determine whether the statement is self-inculpatory,
the court must view the context. Id. at 603. For example, the court might
decline to apply the hearsay exception when the declarant deflects
responsibility by shifting the blame to a third-party. Id. at 604. But a
statement might be self-inculpatory when the declarant admits guilt while
implicating someone else in the crime. See id. at 606 (Scalia, J.,
concurring) (“A declarant’s statement is not magically transformed from a
statement against penal interest into one that is inadmissible merely
because the declarant names another person or implicates a possible
codefendant.”), quoted with approval in United States v. Smalls, 605 F.3d
765, 782 (10th Cir. 2010); see also Williamson, 512 U.S. at 603 (majority
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op.) (illustrating the potential applicability of the hearsay exception to a
statement that implicates a third-party).
We addressed this issue in United States v. Smalls, concluding that
out-of-court statements could be self-inculpatory even though they
implicated a third-party. 605 F.3d 765, 785–86 (10th Cir. 2010). There the
declarant was a prisoner who admitted that he, the defendant, and another
prisoner had participated in the strangulation of another prisoner. Id. at
768–69. While admitting his participation, the declarant said that he and
the defendant had held the victim down while the third prisoner suffocated
the victim with a plastic bag. Id. at 769. We characterized the declarant’s
statements as self-inculpatory even though they had implicated someone
else. Id. at 782–86. We noted that the declarant was talking to a fellow
prisoner, not a law-enforcement official. Id. at 768–72. So we reasoned
that the declarant was likely not trying to “curry favor with authorities . . .
or seeking to shift or spread blame to his alleged co-conspirators so as to
engender more favorable treatment from authorities.” Id. at 783.
B. The district court erred by excluding statements just because they had incriminated Ms. Yellowhorse.
The statements by the declarant in Smalls resemble the statements by
Mr. Chischilly:
1. There the declarant made the statements to a fellow prisoner, not a law-enforcement officer. 605 F.3d 765, 768–72 (10th Cir.
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2010). Mr. Chischilly similarly made the reported statements to his relatives rather than to law enforcement.
2. In Smalls, the declarant said: “We killed [the victim].” Id. at 784. Mr. Chischilly’s relatives similarly said that he had confessed to his role with Ms. Yellowhorse in killing the woman and burning her body.
3. In Smalls, the declarant stated that he and another individual had held the victim while someone else put a bag over the victim’s head. Id. at 785. Mr. Chischilly’s relatives similarly said that he had confessed to pinning the woman so that Ms. Yellowhorse could use a sledgehammer or mallet to inflict the beating. See pp. 2–3, above.
Despite the similarities with Smalls, the district court excluded
everything that Mr. Chischilly had said about Ms. Yellowhorse’s
involvement. Under Smalls, however, the court needed to analyze the
content and context of each statement to determine whether it was self-
inculpatory. Smalls, 605 F.3d at 780–87. The statement might not be self-
inculpatory if the declarant had been trying to shift blame. But the district
court treated anything about Ms. Yellowhorse’s involvement as outside
the hearsay exception. This approach cannot be squared with Smalls.
Ms. Yellowhorse argues that the district court properly parsed
Mr. Chischilly’s statements during the oral argument. There the district
court expressed concern that Mr. Chischilly’s statements harmed not only
his interests, but also Ms. Yellowhorse’s. Appellant’s App’x vol. I, at 95.
After expressing this concern, the court took the matter under advisement.
Id. at 110. The court later issued a written order, categorically regarding
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any statement about Ms. Yellowhorse’s involvement as outside the hearsay
exception: “Therefore, the Government may not offer into evidence the
portions of Chischilly’s statements to his family members that are non-
self-inculpatory in that they refer to Yellowhorse’s alleged participation in
the charged crime.” Id. at 137–38. Given the written explanation for the
decision, we have little basis to speculate about what the district court
might have thought during the oral argument. See SEC v. Lincoln Thrift
Ass’n, 557 F.2d 1274, 1278 n.2 (9th Cir. 1977) (stating that the court of
appeals should rely on the district court’s written order rather than draw
inferences from the district court’s comments at an earlier hearing). That
written explanation erred by straying from the approach we had required in
Smalls.
6. The district court did not clearly err when it found corroboration.
Even when an out-of-court statement is self-inculpatory, the hearsay
exception applies only when “corroborating circumstances . . . clearly
indicate . . . trustworthiness.” Fed. R. Evid. 804(b)(3)(B). The district
court found corroborating circumstances, but excluded parts of
Mr. Chischilly’s statements on other grounds. Ms. Yellowhorse urges us to
affirm even if the district court had otherwise erred, arguing that the
district court shouldn’t have found corroboration.
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A. We apply the clear-error standard when reviewing the district court’s finding on corroboration.
Though Ms. Yellowhorse is the appellee, she’s the challenger with
respect to the finding on corroboration. To decide her challenge, we must
apply the standard of review. “[W]hile the ultimate issue of the admission
or exclusion of evidence is reviewed for an abuse of discretion,
preliminary foundational determinations . . . are factual findings, reviewed
for clear error.” United States v. Alcorta, 853 F.3d 1123, 1137–38 (10th
Cir. 2017) (internal quotation marks omitted).
The foundational determination here involves corroboration, which is
primarily a factual question. In similar circumstances, other courts of
appeals have thus applied the clear-error standard when reviewing findings
on corroboration. E.g., United States v. Bagley, 537 F.2d 162, 165 (5th Cir.
1976) (applying the clear-error standard in reviewing a district court’s
assessment of the trustworthiness of a statement); United States v. Price,
134 F.3d 340, 348 (6th Cir. 1998) (“[A] trial court’s determination of the
trustworthiness of an out-of-court statement should be upheld unless the
finding is clearly erroneous.”); United States v. Henderson, 736 F.3d 1128,
1130 (7th Cir. 2013) (stating that determinations of trustworthiness, for
purposes of the hearsay exception, are reviewable for clear error); United
States v. Cole, 525 F.3d 656, 660 (8th Cir. 2008) (“Whether the
corroborating circumstances clearly indicate the trustworthiness of the
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statement is a question of fact reviewed for clear error.”); United States v.
Hendrieth, 922 F.2d 748, 750 (11th Cir. 1991) (per curiam) (reviewing a
finding on corroboration under the clear-error standard). We will do the
same given the factual nature of a finding on corroboration.
Under the standard for clear error, we reverse only if the finding
lacks “factual support in the record” or if we are “left with a definite and
firm conviction that a mistake has been made.” United States v. Craine,
995 F.3d 1139, 1157 (10th Cir. 2021). We lack such a conviction when the
factfinder can choose between two permissible views of the evidence.
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
B. The district court didn’t clearly err by finding corroboration.
The district court found corroboration based on the forensic report,
the existence of a family connection between Mr. Chischilly and the
witnesses, and the internal consistencies between the relatives’ accounts of
what Mr. Chischilly had said. The court’s finding reflected a reasonable
view of the evidence.
First, the court reasoned that the forensic report had been consistent
with Mr. Chischilly’s admissions that he held the woman down, used nails
to keep her down, and burned the body after the killing. Ms. Yellowhorse
argues that the forensic report didn’t show bludgeoning of the woman’s
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head. But the forensic examiner didn’t have most of the woman’s facial
bones.
Though the forensic examiner couldn’t examine most of the facial
bones, her report noted charring of the woman’s skeleton and a hole in the
skull. The district court could reasonably infer that
Mr. Chischilly had created the hole by using nails to keep the woman down and
the charring resulted when Mr. Chischilly burned the body.
Second, the district court relied on a family connection between
Mr. Chischilly and the witnesses. This family connection led the district
court to infer that Mr. Chischilly had likely been telling the truth.
Ms. Yellowhorse downplays the relatives’ credibility. The court
didn’t have to credit the relatives’ account. But Ms. Yellowhorse doesn’t
say why the relatives would finger Mr. Chischilly with a fictitious
confession. 3
Third, the district court reasoned that the relatives had been
consistent about what Mr. Chischilly had said. Ms. Yellowhorse doesn’t
question the consistency of the relatives’ accounts; she instead points out
that Mr. Chischilly later recanted what he had told his relatives. But the
3 In district court, Ms. Yellowhorse argued that the relatives should have known that Mr. Chischilly was capable of murder. But Ms. Yellowhorse doesn’t renew this argument on appeal.
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court could reasonably put greater weight on Mr. Chischilly’s confession
to his relatives. At the time, the relatives had little reason to suspect
Mr. Chischilly. So the district court could reasonably infer that
Mr. Chischilly had
confessed solely to relieve his guilty conscience and
recanted to soften the punishment because he was then facing a murder charge.
Because the district court acted reasonably in interpreting the
record, 4 we don’t regard the finding on corroboration as clearly erroneous.
7. We remand for the district court to reconsider the applicability of the hearsay exception.
Because the district court applied the wrong test, we reverse the
court’s exclusion of any statements implicating Ms. Yellowhorse. But we
must decide whether to go further.
4 The record supplies three other plausible reasons to find corroboration:
1. Mr. Chischilly confessed not only to his relatives but also to a fellow inmate.
2. Ms. Yellowhorse complained to Mr. Chischilly that he shouldn’t have disclosed what they had done.
3. Ms. Yellowhorse told her stepmother that she had hurt someone.
But the district court didn’t rely on these reasons.
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The government asks us to instruct the district court that all of the
disputed statements fall within the hearsay exception. For this request, the
government relies on the similarity of Mr. Chischilly’s alleged statements
to the statements that we addressed in Smalls. But in Smalls, we remanded
for the district court to reconsider admissibility; we didn’t decide
admissibility in the first instance. United States v. Smalls, 605 F.3d 765,
786 (10th Cir. 2010). We take the same approach here, remanding for the
district court to reconsider the admissibility of Mr. Chischilly’s statements
to his relatives. On remand, the district court should revisit whether
Mr. Chischilly’s statements were self-inculpatory even though they
incriminated Ms. Yellowhorse. 5
5 In a heading, Ms. Yellowhorse states that introduction of the disputed statements would violate her right to due process. She doesn’t develop this statement into a distinct argument. See Sierra Club v. Bostick, 787 F.3d 1043, 1060 n.18 (10th Cir. 2015) (stating that the petitioner waived an argument by failing to develop it beyond a heading); see also United States v. Beckstead, 500 F.3d 1154, 1164–65 (10th Cir. 2007) (stating that two section headings, a single sentence, and two phrases don’t constitute adequate development of an argument). So we don’t consider Ms. Yellowhorse’s undeveloped reference to due process.