United States v. Luis Oscar Sarmiento-Perez

TATE, Circuit Judge:

The issue before us is one of first impression: May the custodial confession of a non-testifying, separately tried coconspirator/codefendant, insofar as the confessor directly implicates an accused in the crime charged, be admitted into evidence against the accused as a statement against the confessor’s penal interest under Fed.R.Ev. 804(b)(3)? We hold that it may not, and we reverse this conviction wherein the coconspirator’s confession, introduced because the coconspirator refused to testify on fifth amendment grounds and was therefore unavailable as a witness, Fed.R.Ev.…