Full opinion text
MEMORANDUM OPINION AND ORDER HAIGHT, Senior District Judge. Steven Camacho and Jaime Rodriguez were convicted of various racketeering acts in June of 1996 and now move pursuant to Rule 38 of the Federal Rules of Criminal Procedure for a new trial on the basis of newly discovered evidence. Defendants submit an affidavit by Christopher E. Thomas, a federal prisoner, that describes a conversation in which Gregory Cherry, a fellow inmate, stated that defendants were convicted of crimes that Cherry committed. Defendants request that the Court grant a new trial based on Cherry’s statement. Defendants argue that Cherry should be granted judicial immunity so that he may testify or, in the alternative, that testimony by Thomas regarding Cherry’s self-inculpation would be admissible under Federal Rule of Evidence 804(b)(3). In either event, defendants contend that Cherry’s declarations entitle them to a new trial. On July 10, 2001, the Court ordered the defendants and the government to submit supplemental briefs addressing the question of whether the Court has jurisdiction pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Having received the parties’ supplemental briefs, I now consider defendants’ motion. For the reasons that follow, I determine as a threshold matter that this Court does have jurisdiction. On the merits, I deny defendants’ request for a grant of judicial immunity, and I direct a hearing for the purposes of assessing whether testimony by Thomas regarding Cherry’s statements would be admissible and, if so, whether a new trial is required. BACKGROUND Camacho and Rodriguez were indicted on racketeering charges on May 25, 1994, along with multiple other defendants as part of the federal prosecution of members of the C & C gang, which operated in the Bronx. Early in the case, the government agreed to try Camacho and Rodriguez separately from the others, and accordingly they were severed from the primary case. After securing guilty pleas from numerous defendants and agreeing to additional severances, the government initially proceeded to trial against Angel Padilla, one of the founders of the C & C gang, and Ivan Rodriguez, the man accused of killing the other founder, Juan Calderon. Both Padilla and Ivan Rodriguez were convicted in May of 1995. Camacho and Jaime Rodriguez were later tried pursuant to a superseding indictment dated February 12,1996. They were charged at trial with conspiracy to murder Hector Ocasio, the murders of Hector Oca-sio and Gilberto Garcia, and the attempted murder of Luis Garcia, all in aid of the C & C racketeering enterprise, in violation of 18 U.S.C. § 1959; they were also charged with a related firearms offense in violation of 18 U.S.C. § 924. A jury trial commenced on June 3, 1996. The government advanced the following theory of how the murders and attempted murder took place: After Calderon was killed, Padilla told the members of his security force to keep a low profile and brought in a new head of security, Hector Ocasio, who hired new security members. Soon, Padilla and several longtime members of his security force, including James Albizu, Joey Pillot, Trumont Williams, and Gregory Cherry, began to distrust Ocasio. Ocasio had reduced weekly salaries and then cut several security members from the payroll. He also had given local drug dealers permission to shoot Williams and Cherry. Albizu conceived of a plan to murder Ocasio, and he discussed his plan with Pillot, Williams, and Cherry. He also discussed his plan with Camacho and Rodriguez, who together used to pay C & C “rent” to sell drugs in the gang’s neighborhood and were friendly with Albizu. In late December of 1992, Albizu, Williams, Cherry, Camacho, Rodriguez, and' a cousin of Rodriguez’s agreed to meet to kill Ocasio, but the plan fell through when Cherry failed to appear. According to the government’s theory, the plan to kill Ocasio was brought to fruition on January 2, 1993. On that day, Albizu, Camacho, and Rodriguez met Williams at his apartment. Williams called his regular car service driver, Douglas Welch, and for several hours, Welch drove the group around as they prepared to murder Ocasio. During that time, they collected weapons and obtained ammunition. They then located Ocasio, who was standing in front of a liquor store with Gilberto Garcia and Luis Garcia. Albizu went to collect his weekly salary from Ocasio and returned to the car. The group then met up with Cherry, who helped Albizu and Williams hijack an additional car. Albizu parked the hijacked car a few blocks from the liquor store, and Cherry left. Welch drove Albizu, Williams, Camacho, and Rodriguez around the neighborhood and then dropped off Albizu a few blocks from the liquor store. Welch then drove around for a few more minutes and parked half a block from the liquor store. Williams and Camacho exited the car while Rodriguez waited with Welch. Williams and Camacho then shot Ocasio, Gilberto Garcia, and Luis Garcia. Ocasio and Gilberto Garcia were killed. Luis Garcia was wounded. Camacho returned to the car, and Williams left in a different direction. Welch drove Camacho and Rodriguez away, and they regrouped with Williams and Cherry, who had the hijacked car. The next day, Camacho and Rodriguez met with Albizu and talked about the murders. The principal witnesses for the government on the issue of defendants’ participation in the shootings were Albizu and Welch, who testified to the sequence of events described above. The defense attacked these witnesses’ credibility by calling attention to the ruthless, self-serving acts committed by Albizu in connection with prior crimes and by arguing that Albizu and Welch were providing testimony to please the prosecutors in order to obtain leniency. Albizu had originally been indicted along with the defendants and had accepted a plea bargain pursuant to which he was sentenced to time served plus 60 days. In exchange for his cooperation, Welch was never prosecuted. The government also called defendants’ former partner in their drug sales business, Jose Crespo, to testify as a background witness. Finally, the government called several police officers as witnesses. Defendants each presented an alibi witness at trial. Venero Jimenez testified that Camacho was visiting his mother in Florida from a few days after Christmas in 1992 until approximately three weeks later. Nancy Melendez, Rodriguez’s former girlfriend and the mother of his child, testified that Rodriguez came to her apartment the evening of January 1, 1993, and stayed the entire day and evening of January 2, 1993. The government tried to show that the witnesses were trying to help the defendants out of concern for them and argued that their stories were patently incredible. Defendants also presented as a witness Luis Garcia, the surviving victim of the shootings. Garcia testified that he saw Williams and Cherry, not Williams and Camacho, commit the shootings. He also testified that he encountered Cherry several days after he was released from the hospital and that Cherry told him that he was not the intended target of the shootings. On cross-examination, the government elicited from Garcia that he only glimpsed the shooters in the brief moment after he was shot in the back, as he turned and fell to the ground, and that he only saw the profile of the shooter whom he identified as Cherry. The government also tried to discredit Garcia by pointing to ballistics evidence to show that Garcia was mistaken about who was shot by Williams and who was shot by the second assailant. To rebut Camacho’s alibi defense that he was in Florida during the first weeks of January 1993, the government called as a rebuttal witness a parole officer who testified that Camacho met with her in the Bronx on January 6, 1993. The government also introduced a court transcript showing that Camacho appeared in court in the Bronx on January 7, 1993. Finally, the government called two New York City police detectives who testified that they had interviewed Garcia after the shootings and that Garcia told them at that time that he did not know who shot him. On June 26, 1996, the jury returned a verdict of guilty on all counts against both Camacho and Rodriguez. Defendants immediately submitted a motion for a judgment of acquittal and, alternatively, for a new trial on the basis of insufficient evidence and various other grounds. The Court denied their motion. United States v. Camacho, No. S12 94 Cr. 313, 1998 WL 472844 (S.D.N.Y. Aug. 10, 1998). In April of 1999, defendants filed a second motion for a new trial based on newly discovered evidence (the “second motion”). Defendants requested a grant of judicial immunity so that a proposed witness, Gregory Cherry, could testify that he committed the crimes for which defendants were convicted. Counsel for Rodriguez had met with Cherry in the fall of 1997 and the fall of 1998 and stated in an affidavit that Cherry told her that he knew who was responsible for the murders and that Camacho and Rodriguez were not involved. Cherry told her that he would testify only if he was granted immunity. Defendants also argued in their second motion that a new trial was warranted because of prose-cutorial misconduct. The Court declined to grant judicial immunity and found that there was no newly discovered evidence of prosecutorial misconduct that would warrant a new trial. United States v. Camacho, No. S12 94 Cr. 313, 1999 WL 1084229 (S.D.N.Y. Dec. 1, 1999). Judgment was entered against Rodriguez on April 11, 2000, and he filed a notice of appeal on April 20, 2000. Judgment was entered against Camacho on June 19, 2000, and he filed a notice of appeal on June 21, 2000. During the late summer or fall of 2000, counsel for defendants received an affidavit by a federal inmate named Christopher E. Thomas (also known as Christopher E. Reese). Thomas’s affidavit is dated July 14, 2000, and attests to the following events: Around June of 1998, Thomas was incarcerated at the federal prison in Otis-ville and frequently visited the prison law library. He became acquainted with Gregory Cherry, who was working in the law library, and began helping him with papers related to his sentencing proceedings. One day, Thomas was sitting with Cherry when Steven Camacho walked into the library. Thomas commented to Cherry that he remembered Camacho but thought that Camacho did not remember him, since Camacho did not greet him. Cherry then stated that Camacho was his codefendant and was in prison for something that Cherry did. When Thomas asked Cherry what he meant, Cherry responded “bodies.” Cherry also mentioned that he had told an attorney that Camacho and another person were innocent of the charges against them. Thomas did not tell anyone about the conversation until July 13, 2000, when he told Camacho. In Thomas’s affidavit, dated July 14, 2000, he states that he is willing to testify in connection with Camacho’s criminal case. The Second Circuit Court of Appeals permitted defendants to withdraw their appeals without prejudice so that defendants could make a third motion before this Court for a new trial. That motion was filed on March 30, 2001. DISCUSSION I. Jurisdiction At the Court’s direction, the defendants and the government have submitted supplemental memoranda of law addressing the issue of the Court’s jurisdiction as governed by Rule 33 of the Federal Rules of Criminal Procedure. That direction was explained in the Court’s opinion dated July 10, 2001, which laid out the jurisdictional issue raised by defendants’ motion, Unites States v. Camacho, S12 94 Cr. 313, 2001 WL 789301 (S.D.N.Y. July 11, 2001); I restate the circumstances in full for the sake of clarity. Rule 33 limits the time within which a defendant in a criminal case may move for a new trial. A district court has jurisdiction to consider a motion for a new trial only if the motion is submitted within the time limits established by Rule 33. United States v. Lussier, 219 F.3d 217, 220 (2d Cir.2000). When the trial in this case took place in 1996, Rule 33 required that a motion for a new trial based on newly discovered evidence be filed within two years of “final judgment.” If a defendant appeals unsuccessfully from a conviction, “final judgment” occurs when the Court of Appeals issues its mandate. Lussier, 219 F.3d at 218-19, reaffirming United States v. Reyes, 49 F.3d 63 (2d Cir.1995). On December 1, 1998, an amendment to Rule 33 went into effect and changed the time limits applicable to motions for a new trial in criminal cases. The rule now provides that a motion for a new trial based on newly discovered evidence must be filed within three years of the verdict. Defendants’ motion for a new trial based on newly discovered evidence would be timely under the version of Rule 33 in effect prior to December 1, 1998, but it would be late under the current version of the rule. The jury announced its verdicts on June 26, 1996. Defendants filed this motion on March 30, 2001. Since defendants have not yet completed their appeal, there has been no “final judgment” in this case, and therefore the time for making a motion for a new trial under the prior version of Rule 33 has not yet expired. Under the current version of Rule 33, however, the time for filing a motion for a new trial would have expired on June 26, 1999, three years after the verdict. The question whether the amended version of Rule 33 should apply in circumstances such as are present in this case is a matter of first impression. See Lussier, 219 F.3d at 218-19 (not deciding whether amended Rule 33 applies to motion for new trial filed before effective date of amendment); see also United States v. Bowler, No. 99-31370, 2001 WL 568714, at *2-5 (5th Cir. May 25, 2001) (dealing with case in which verdict was reached more than three years before effective date of amendment to Rule 33); United States v. Soler, No. 94 Cr. 533, 2000 WL 385514, at *1 (S.D.N.Y. Apr. 17, 2000) (same); United States v. Jasin, No.Crim. 91-602-08, 2000 WL 1793397, at *2 (E.D.Pa. Nov. 22, 2000) (same). Amendments to a rule of procedure generally apply to cases commenced after the effective date of amendment and also may apply to some pending cases “insofar as just and practicable.” Bowler, 252 F.3d 741, 744-47, interpreting Order of April 24, 1998 of the Supreme Court of the United States Adopting and Amending the Federal Rules of Criminal Procedure, 523 U.S. 1229. The trial of the case at bar ended with the jury’s guilty verdicts on June 26, 1996, nearly a year and a half before the amendments to Rule 33 came into effect on December 1, 1998. Therefore, the amendment to Rule 33 should be applied in this case only if it is just and practicable to do so. Defendants and the government offer several reasons why it would or would not be just and practicable to apply the new version of Rule 33 in this case. For the most part, their arguments miss the mark. Defendants contend that they have no control over the emergence of new facts and that their motion is meritorious; they also assert that resolution of their motion by the trial court would avoid piecemeal litigation through appeals and habeas petitions. These arguments do not in the slightest distinguish defendants’ motion from other motions based on newly discovered evidence under Rule 33. In essence, defendants are arguing that it is unjust and impracticable to impose any time limit on a motion for a new trial based on newly discovered exculpatory evidence and, therefore, that the least restrictive time limit should apply. I must perforce accept the contrary proposition implicit in the drafters’ revision of Rule 33-that it is just and practicable to impose definite time limits, running from the date of the verdict, on motions for a new trial based on newly discovered exculpatory evidence. I am not persuaded that the former version of Rule 33 should apply merely because it is more permissive than the current version of Rule 33. Defendants and the government also debate the significance of the fact that defendants raised similar issues in their second motion for a new trial. I do not find these arguments to be helpful on the question whether it would be “just and practicable” to apply the current version of Rule 33 in this case. Defendants’ motion is based on newly discovered evidence, statements by Gregory Cherry to Christopher Thomas, which defendants could not have included in their prior motion. Rule 33 does not restrict the number of motions a defendant may make, nor does it treat as relevant whether a motion for a new trial based on newly discovered evidence makes similar arguments as a prior motion based on other new evidence. Either version of Rule 33 effectively prohibits trial courts from considering new evidence that is discovered after a certain period of time has elapsed. Defendants could not have brought evidence of Cherry’s statement to Thomas to the Court’s attention within three years of the verdict, as the current version of Rule 33 requires. As I stated earlier, there is nothing inherently unjust or impracticable in the more restrictive time limit imposed by the current version of Rule 33, nor could it be argued (and defendants do not argue) that this revision of Rule 33 lay beyond the powers of the drafters. Defendants make the further argument that their motion relates back to their second motion for a new trial and that therefore the time limit of Rule 33 only applies to the filing of their second motion. Defendants’ second motion for a new trial was timely filed under either version of the rule. Rule 33 does not provide an exception to its time limit for motions that relate to earlier motions, nor does it give courts discretion to grant additional time for defendants to file motions for a new trial based on newly discovered evidence, although the rule does give courts such discretion with regard to motions for a new trial made on other grounds. See Fed. R.Crim.P. 33 (“A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.”); Fed.R.Crim.P. 45(b) (“[T]he court may not extend the time for taking any action under Rules 29, 33, 34 and 35, except to the extent and under the conditions stated in them.”). The time limits imposed by Rule 33 must be “strictly construed.” Herrera v. Collins, 506 U.S. 390, 409, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Defendants’ motion cannot be .treated as a timely amendment or supplement to their second motion, since the Court has already ruled on that motion. Nor can defendants’ motion be treated as a timely request for reconsideration of the Court’s decision on the second motion, since defendants made this motion nearly sixteen months after the Court’s decision on the second motion and nearly nine months after the Court entered judgment and the defendants filed their notices of appeal. See United States v. Clark, 984 F.2d 31, 33-34 (2d Cir.1993) (“[T]he filing of a request for reconsideration [is] timely, in the absence of any specified time limit, if filed within the time for appeal.... ”); Fed.R.App. P. 4 (providing ten days for defendant in criminal case to file notice of appeal of order or judgment); cf. Canale v. United States, 969 F.2d 13, 14-15 (2d Cir.1992) (addressing timeliness of motion for reconsideration filed by government). Therefore, defendants’ present motion must be treated as their third motion for a new trial. On the issue of whether it is just and practicable to apply the new version of Rule 33 in this case, the determinative question is not whether the new version of Rule 33 is itself just and practicable; rather it is whether that version can be applied in cases presenting comparable chronologies in a manner that is predictable, uniform, and consistent with the purposes of the rule. See Fed.R.Crim.P. 2 (“These rules .... shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”). I find that it would not be just or practicable to apply the new version of Rule 33 in this case, where the verdict was reached before the amendments to Rule 33 came into effect, because the time period prescribed by the new version of the rule runs from the date of the verdict. Defendants were convicted by the jury on June 26, 1996. If they had consulted Rule 33 on that date to determine how much time they had to file a motion for a new trial, they would have learned that they could file a motion for a new trial based on newly discovered evidence at any time before final judgment or for two years thereafter. Defendants filed this motion on March 30, 2001, before the Second Circuit heard their appeal and thus before “final judgment.” The amendments to Rule 33, imposing a new time limit based on the date of the verdict, became effective on December 1, 1998. Under the new rule, defendants would have been barred from submitting a motion for a new trial after June 26, 1999, that is three years after the verdict. It would be unfair to apply the new rule to defendants, because it would interject an unexpected deadline into the post-trial process. Defendants should be able to rely on the rule governing motions for a new trial that was in effect on the date they were convicted. Furthermore, application of the new rule in cases such as this one, where the verdict was reached before December 1, 1998, would have inconsistent effects. As of the effective date of amendment, some defendants would suddenly have only a few days or weeks to file their motions, while other defendants would have up to three years. Rule 33 should be applied in a manner to provide defendants in criminal trials with clear advance notice of their deadlines for filing post-trial motions. For this reason, I conclude that it makes sense and would be most just to apply the version of Rule 33 in effect on the date of the verdict, in this case the former version of Rule 33 providing a deadline of two years after final judgment. Other courts have applied the version of Rule 33 in effect on the date of the verdict in circumstances where the defendants were convicted more than three years pri- or to the effective date of amendment of Rule 33. A district court in this circuit, in so holding, explained: [A]t the time of the verdict [Rule 33] provided that such a motion could be made within two years following final judgment. The amendment of the rule did not become effective until December 1, 1998, more than three years after the verdict. It would be entirely anomalous to apply the current time limit to defendant’s motion. Doing so would mean that Soler’s motion was barred before the revision of Rule 33 even came into effect. Soler surely had a right to rely on the old version of Rule 33 as long as it was effective. There is no sensible and fair way to apply the new rule to him. The old rule must govern, and under that rule the motion is timely. United States v. Soler, No. 94 Cr. 533, 2000 WL 385514, at *1 (S.D.N.Y. Apr. 17, 2000) (Griesa, J.); accord Bowler, 252 F.3d 741, 743-747 (“It would not be just and practicable to apply the new rule to [this] Rule 33 motion because that would have required Bowler to file the motion five months before the effective date of the new rule.”); Jasin, 2000 WL 1793397, at *2 (“[T]he Court will apply to this case the rule relating to new trials based on newly discovered evidence as it existed when defendant was convicted, not as amended while his conviction was on appeal.”). While application of the new version of Rule 33 would have been more harsh for the defendants in Soler, Bowler, and Jasin than it would be for Camacho and Rodriguez, since the defendants in those cases would have had no notice that their time for filing motions would be curtailed, I am convinced that the principle articulated in those cases has force in this case as well; defendants should be entitled to rely on the version of the rule governing motions for a new trial that was in effect at the close of their trial. This result is just and practicable because it ensures the predictable and uniform application of Rule 33, so that the rule may function to provide criminal defendants with clear notice of the time period for filing motions for a new trial. Therefore, I find that this court has jurisdiction to consider defendants’ motion. II. Judicial Immunity In an opinion dated December 1, 1999, the Court denied defendants’ request for a grant of judicial immunity for Gregory Cherry. United States v. Camacho, No. S12 94 Cr. 313, 1999 WL 1084229, at *3-7 (S.D.N.Y. Dec. 1, 1999). A court may order the government to grant a defense witness immunity or risk dismissal of the charges against the defendant only if three requirements are met: First, the district court must find that the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the fifth amendment. Second, the witness’s testimony must be material, exculpatory, and not cumulative. Third, the testimony must be unobtainable from any other source. Id. at *3^4 (quotations omitted), citing and quoting United States v. Bahadar, 954 F.2d 821, 826 (2d Cir.1992). The Court found that while Cherry’s proposed testimony would be exculpatory and was not obtainable from any other source, defendants had not shown that the government’s denial of immunity constituted overreaching or improper discrimination. Id. at *5-7; see also United States v. Bahadar, 954 F.2d 821, 826 (2d Cir.1992) (“[Ali’s] invocation of the fifth amendment was not the result of a discriminatory use of immunity by the government, nor of any other prosecutorial overreaching. In fact, it seemed to be solely the result of Ali’s own willingness to change his story.”). Defendants now ask the Court to reconsider its refusal to grant judicial immunity to Cherry, but defendants fail to provide any evidence of prosecutorial misconduct that they did not provide, or could not have provided, in connection with their prior motion. Rodriguez argues that Thomas’s affidavit shows that the government abused its prosecutorial discretion, and Camacho argues that Thomas’s affidavit demonstrates a “compelling need” for immunity. These arguments are without merit. The affidavit by Thomas confirms the exculpatory nature of Cherry’s proposed testimony, which the Court has already recognized. Camacho, 1999 WL 1084229, at *5. Thomas’s affidavit does not, however, contain any information about government misconduct. Although defendants offer only Thomas’s affidavit as new evidence justifying reconsideration of the Court’s prior decision, Rodriguez recites numerous other allegations of misconduct. Camacho Mem. of Law at 3; Rodriguez Mem. of Law at 18-22; Rodriguez Reply Mem. of Law at 5-8. Some of these allegations are not based on new evidence, and the rest are not based on any evidence at all. Counsel for Rodriguez suggests that the Court in its opinion of December 1, 1999, mistakenly applied the newly discovered evidence requirement to defendants’ request for judicial immunity. Reply Mem. of Law. at 6. Counsel confuses the two grounds of decision in the Court’s opinion. Defendants had requested a new trial based on proposed testimony by Cherry, which they hoped to obtain through a grant of judicial immunity, and, in the alternative, based on a pattern of prosecu-torial misconduct. Camacho, 1999 WL 1084229, at *2. In considering defendants’ request for a grant of judicial immunity, the Court did not require that evidence of prosecutorial misconduct be newly discovered. Id. at *2-7. The Court did apply such a requirement, however, in considering defendant’s argument that a pattern of prosecutorial misconduct warranted a new trial. Id. at *8. While defendants do not argue that the legal standards governing judicial grants of immunity have changed, Rodriguez does rely on United States v. Dolah, 245 F.3d 98 (2d Cir.2001), an opinion issued by the Second Circuit subsequent to this Court’s opinion of December 1, 1999. Counsel misrepresents that case as holding that “ ‘discriminatory use of grants of immunity’ means only that the government has conferred immunity on some witnesses and not on others.” Reply Mem. of Law at 6. In fact, the Court in Dolah stated: “The “discriminatory use” component of the test is not entirely clear. It is arguable that this component ... means simply a decision by the Government to confer immunity on some witnesses and not on others.... On the other hand, ... ‘tactical advantage’ might mean something more than merely selecting from among potential witnesses those who will receive immunity.” Id. at 105-06. The court did not set any new standard for reviewing denials of immunity by prosecutors but rather summarized and affirmed existing precedent, in particular noting that interference with the power of prosecutors to grant or deny immunity was permissible only in “limited circumstances.” Id. at 106. The court then held that it was fundamentally unfair for the government in that case to immunize select witnesses while introducing the plea allocations of similarly situated witnesses whose testimony would have been less favorable to the government. Id. at 107. Counsel for defendants do not argue that the misconduct alleged in this case is comparable to the misconduct alleged in Dolah. The issue of judicial immunity was considered at length in the opinion of December 1, 1999, and I find no persuasive reason to reconsider the issue now. Therefore, defendants’ request for judicial immunity for Gregory Cherry is denied. III. The Merits of Defendants’ Motion for a New Trial The Court having declined to grant judicial immunity to Cherry, the new evidence upon which defendants base their motion for a new trial perforce consists of Thomas’s account of his conversation with Cherry. That account presently takes the form of the affidavit defense counsel have obtained from Thomas, setting forth the declarations that Thomas attributes to Cherry. In these circumstances, three questions arise: (1)Would the declarations Thomas attributes to Cherry be admissible under the rules of evidence at a new trial? If that question be answered in the negative, then the defendants’ motion fails of necessity, since this is the only new evidence defendants have to support it. (2) If the rules of evidence would permit Thomas to testify to Cherry’s declarations in a manner consistent with Thomas’s affidavit, do Cherry’s declarations entitle defendants to a new trial? (3) Is an evidentiary hearing necessary to resolve these issues, or should the Court adjudicate the motion on the basis of the present written submissions? I will consider these questions in order. A. Admissibility Defendants offer Cherry’s out-of-court declarations to Thomas “to prove the truth of the matter asserted,” Fed.R.Evid. 801(c), namely, that Cherry and Williams, not Camacho and Williams, shot Ocasio, Gilberto Garcia, and Luis Garcia. Accordingly, under that rule, Cherry’s declarations are hearsay, and could be admitted at a new trial only if they fall within a recognized exception to the hearsay rule. Defendants rely upon the exception found in Rule 804(b)(3). That Rule provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made 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. Defendants who offer hearsay evidence that another person has confessed to the crime must establish three elements in order to prevail on the issue of admissibility: “(1) the declarant is unavailable; (2) the statement was at the time of its making against the declarant’s (penal) interest; and (3) corroborating circumstances clearly indicate the trustworthiness of the statement.” United States v. Rodriguez, 706 F.2d 31, 40 (2d Cir.1983). It is undisputed that Cherry would be “unavailable” under Rule 804 if he were called to testify and invoked his Fifth Amendment privilege against self-incrimination. Rule 804(a)(1) provides that a declarant is “unavailable” if he is “exempted by ruling of the court on the ground of privilege from testifying.” See United States v. Dolah, 245 F.3d 98, 102 (2d Cir.2001) (“It is settled in this Circuit that a witness who invokes the privilege against self-incrimination is “unavailable” within the meaning of Rule 804(b) .... ”); see also United States v. Bahadar, 954 F.2d 821, 827 (2d Cir.1992). The government also concedes that Cherry’s statement to Thomas was against penal interest, because it tended to subject him to criminal liability. Gov. Mem. of Law at 5-6. See United States v. Katsougrakis, 715 F.2d 769, 777-78 (2d Cir.1983) (articulating broad definition of statements against penal interest); United States v. Thomas, 571 F.2d 285, 288 (5th Cir.1978) (same); United States v. Satterfield, 572 F.2d 687, 691 (9th Cir.1978) (same); but cf. United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir.1984) (suggesting that self-incul-patory statements by convict serving multiple life sentences may not be against penal interest). The only point of contention between the parties is whether Cherry’s statement to Thomas is clearly corroborated by circumstances indicating its trustworthiness. 1. The Requirement of Clear Corroboration “Although Rule 804(b)(3) requires the presence of corroborating circumstances only in the case of statements ‘tending to expose the declarant to criminal liability and offered to exculpate the accused,’ this Circuit requires corroborating circumstances even when the statement is offered ... to inculpate the accused.” United States v. Casamento, 887 F.2d 1141, 1170 (2d Cir.1989). With respect to exculpatory statements, the purpose of the corroboration requirement is to prevent criminal accomplices from fabricating evidence at trial. United States v. Rodriguez, 706 F.2d 31, 40 (2d Cir.1983) (citing legislative history of Rule 804(b)(3)); United States v. Guillette, 547 F.2d 743, 754 (2d Cir.1976) (noting “inherent danger that third party confessions tending to exculpate a defendant are the result of fabrication”); United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir.1984) (commenting on “long-standing concern-whether or not well-founded-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”) (citation omitted). “The burden is on the accused to justify admission of the statement by demonstrating that the statements are sufficiently corroborated.” United States v. Doyle, 130 F.3d 523, 543-44 (2d Cir.1997), citing United States v. Salvador, 820 F.2d 558, 561 (2d Cir.1987). The requirement of corroboration is easy enough to state in general terms, but the Second Circuit cases have led to some uncertainty with respect to its particular application. Thus in Salvador, where the Second Circuit affirmed the trial judge’s exclusion of an exculpatory declaration be-. cause “the indicia of reliability are far too insufficient to warrant admission,” 820 F.2d at 562 (quoting the trial judge), the court of appeals said: Exactly what needs to be corroborated, though, is not absolutely clear from the rule or much of the case law. Corroboration of the trustworthiness of the statement could mean that the district judge is to require corroboration of the of the declarant’s trustworthiness, focusing on declarant’s reliability when the statement was made, or corroboration of the truth of the declarant’s statement, focusing on whether the evidence in the record supported or contradicted the statement, or both. Our court seems to require corroboration of both. 820 F.2d at 561-62 (citations omitted). That conclusion was reiterated in United States v. Bahadar, 954 F.2d 821 (2d Cir.1992), affirming the exclusion of an arguably exculpatory hearsay declaration because “[t]he circumstances simply do not corroborate the trustworthiness of the proffered statement at all,” id. at 829; the Second Circuit said: The corroboration requirement of the Rule should be construed to effectuate its purpose of circumventing fabrication. To this end, our cases have required corroboration of both the declarant’s trustworthiness as well as the statement’s trustworthiness. Id. (citation and internal quotation marks omitted) (emphases in original). However, more recently in Doyle, 130 F.3d 523, the Second Circuit suggested a different analysis, manifested by the court’s seemingly approving quotation from Judge Weinstein’s treatise. The Doyle court, after quoting the passages from Salvador and Bahadar that I have quoted supra, went on to say at 130 F.3d at 544: On the other hand, 5 Weinstein’s Federal Evidence § 804.06[5][c] states that “[i]t is the statement, not the witness or the declarant, that must be trustworthy.” As the treatise notes, “[t]he corroboration requirement should not be used as a means of usurping the jury’s function” of evaluating the credibility of witnesses. Id. (emphasis added). In Doyle the Second Circuit, having paid that apparent tribute to Weinstein’s analysis, then offered a further discussion which is, in large measure, an apologia for its prior decisions in Salvador and Bahadar: In any event, the credibility of an absent declarant is a consideration pertinent to the probative value of her or his testimony and, thus, relevant to a judge’s decision to admit or exclude evidence under the ever-vigilant Fed.R.Evid. 403, even if not a proper question for the judge under Rule 80k. Accordingly, our circuit’s position, as stated in Salvador and Bahadar, can be justified as a proper exercise of the trial judge’s discretionary authority under a combination of Rules 804 and 403. 130 F.3d at 544 (emphases added). Doyle was a prosecution for the illegal exportation of equipment in violation of an embargo of trade with Libya. At trial co-defendants Doyle and Vance, invoking Rule 804(b)(3), offered into evidence un-sworn statements of one Nothacker, a West German middleman, to government agents investigating the transaction. No-thacker had said to the agents that “he never informed Doyle that Libya was the ultimate purchaser of the parts supplied by the [defendants].” 130 F.3d at 542. The trial judge “found both that Nothacker was unavailable to testify at trial, and that the statements he made were against his penal interest,” but excluded the statements “for lack of indications of trustworthiness in the circumstances surrounding the statement, as required by F.R.Evid. 804(b)(3),” id; “Nothacker’s statements were offered by the defense to exculpate Doyle and Vance and are, therefore, subject to the last sentence of Rule 804(b)(3), which requires that ‘corroborating circumstances clearly indicate the trustworthiness of the statement,’ ” id. at 543 (emphasis is the court’s). The trial judge excluded Nothacker’s statements because they “were expressly recanted in a stipulation executed as part of the corporate plea agreement between the Government and ISP [Nothacker’s company].” Id. at 542. The Second Circuit, affirming that ruling, noted the discrepancies in No-thacker’s statements and also looked to the trial record for evidence corroborating or contradicting one version or the other. The court said: Given that the other evidence at trial supported Nothacker’s later statement and contradicted his earlier assertions that he never discussed the identity of the ultimate purchaser with Doyle, we easily conclude that the district court cannot be faulted for excluding the statements. Id. at 544. The most recent Second Circuit case is United States v. Desena, 260 F.3d 150 (2d Cir.2001). The prosecution arose out of the criminal activities of the Pagans, a motorcycle club, to which defendant-appellant Peter Mihalitsianos at one time belonged. One count in the indictment charged Mihalitsianos with attempted arson of a tavern frequented by members of a rival club. The trial judge permitted the government to elicit from a witness named Spring that Spring had overheard one Richter, a Pagans club leader, describing the maladroit manner in which Mihalitsia-nos and another individual had attempted the unsuccessful arson. Thus the out-of-court statement was offered to inculpate the defendant. The trial judge received Spring’s account of what Richter said on the ground that Richter’s declarations were admissible under the coconspirator exception to the hearsay rule found in Fed.R.Evid. 801(d)(2)(E). The Second Circuit expressed some doubt about that ruling, but went on to say: Even if Richter’s statements, overheard by Spring, were not admissible under the coconspirator exception, any error was harmless because the statements could have been admitted as statements against interest. See Fed. R.Evid. 804(b)(3). Richter invoked his Fifth Amendment right not to testify at Mihalitsianos’ trial and thus was an unavailable witness under Fed.R.Evid. 804(a)(1); an admission to arson was contrary to Richter’s penal interest; and the trustworthiness of Richter’s statements was corroborated by the testimony of Joseph Whittaker, whose descriptions of the scene of the arson the day of the crime (a) matched Richter’s description of Mihalitsianos’ actions and (b) substantiated the motive offered by Richter. 260 F.3d at 158-59. In Desena the Second Circuit’s analysis of corroboration was limited to the trustworthiness of the out-of-court statement, and gave no consideration to the trustworthiness of the witness (Spring) or the de-clarant (Richter). As the Second Circuit noted in Doyle, that is the approach favored by the Weinstein treatise. However, there may have been no evidence available to the defense with which to challenge the trustworthiness of the witness or the declarant, at least with respect to the declaration at issue. In the case at bar, defendants Camacho and Rodriguez offer Cherry’s declarations to exculpate themselves. Accordingly Doyle stands as the most recent Second Circuit squarely addressing the requirement of corroboration of exculpatory hearsay declarations under Rule 804(b)(3). While, as noted, the Doyle court acknowledged with evident respect Judge Wein-stein’s view that “it is the statement, not the witness or the declarant, that must be trustworthy” to render a declaration admissible under Rule 804(b)(3), the court of appeals’ decision in Doyle rested in part upon the lack of trustworthiness of the declarant, Nothacker. I have previously quoted the Second Circuit’s observation in Doyle that “the credibility of an absent declarant is a consideration pertinent to the probative value of her or his testimony”; the court also said in that regard: “While Nothacker may not have altered his story as many times as did the absent defendant in Bahadar, the former’s inconsistent stories suggest a similar risk of fabrication.” 130 F.3d at 544. Therefore I conclude that, under the present law of this circuit, I must consider the trustworthiness of Cherry as a declar-ant, as well as the trustworthiness of the declarations attributed to him. That is so, whether the consideration of Cherry’s trustworthiness is undertaken solely as part of the corroboration requirement of Rule 804(b)(3), as indicated by Salvador and Bahadar, or as the result of an interaction between Rule 804(b)(3) and Rule 403, as the Second Circuit suggested in Doyle. Courts construe the requirement for “clear” corroboration in light of its purpose of assuring that defendants have not fabricated evidence. Rodriguez, 706 F.2d at 40. Thus, the fact that a hearsay statement is supported by the defendant’s testimony is not sufficient corroboration. Id. Nor is it sufficient that a hearsay statement is “merely consistent” with a fact in evidence. Silverstein, 732 F.2d at 1347 (“Although the fact that Matthews was let out of his cell before the discovery of Chappelle’s body provides slight corroboration for his [confession that he murdered Chappelle], the medical evidence that Chappelle was killed by two men and the estimate of the time of death entitled the judge to conclude that the circumstances did not clearly indicate that Matthews’ confession was trustworthy.”). Corroboration of a hearsay statement must give rise to a “strong, not merely allowable,” inference of trustworthiness. Salvador, 820 F.2d at 561. On the other hand, defendants need not prove that the hearsay statement is certainly true, only that there are clear indicia of reliability. Doyle, 130 F.3d at 543 (noting that “it is the role of the jury-not the court-to assess the credibility of witness testimony”). The Second Circuit has considered in comparable situations the reliability of statements made by a defendant’s alleged partner in crime. United States v. Doyle, 130 F.3d 523, discussed supra, is such a case. In United States v. Matthews, 20 F.3d 538, 544-46 (2d Cir.1994), the Second Circuit considered the reliability of a statement by a codefendant to determine whether admission of the statement violated the Confrontation Clause. The analysis of a statement’s reliability under the Confrontation Clause is analogous to an analysis of reliability under Rule 804(b)(3). See United States v. Katsougrakis, 715 F.2d 769, 776 (2d Cir.1983) (“As a practical matter ... a hearsay statement that satisfies the penal interest exception usually will survive Confrontation Clause scrutiny because the “trustworthiness” issue has already been decided in favor of admissibility.”). In Matthews, defendants Matthews and Prater were charged with bank robbery. Prater’s girlfriend testified at trial that Prater had described to her how he had committed the robbery with Matthews and another person. This conversation allegedly took place three days after the robbery. The court held that Prater’s statements to his girlfriend were sufficiently trustworthy that they could be admitted as hearsay evidence against Matthews. The court based its conclusion on the fact that Prater made the statements spontaneously to a close friend in a private setting, without minimizing his responsibility in any way and without any expectation that his statements would be disclosed to the authorities. Decisions in other circuits have dealt with situations comparable to the present case and provide helpful analysis. The Fifth Circuit in United States v. Bagley, 537 F.2d 162 (5th Cir.1976), upheld a district court’s decision to exclude evidence of a statement by a prison inmate that exculpated the defendant. Bagley was charged with possessing heroin with intent to distribute while he was incarcerated in a federal prison. Bagley testified at trial that another inmate, Schropshire, had asked Bagley to deliver a package of Valium capsules to another inmate. Schropshire had died approximately a month after the alleged offense. Three other inmates were permitted to testify at trial that they had heard Schropshire tell Bagley that the package contained Valium. The judge did not, however, allow testimony by Sehrop-shire’s cellmate, Bobby Duke, regarding a conversation he had with Schropshire on the day when Bagley was discovered with heroin. According to Duke, Schropshire said that he asked Bagley to deliver a bag of Valium and then later realized that he had given Bagley a bag of heroin instead. The court of appeals first found that the circumstances of Sehropshire’s statement to Duke clearly corroborated its reliability. Schropshire was in the best position to know whether he had given Bagley heroin by mistake, and since the statement was purportedly made before Schropshire could have known that prison guards had discovered the heroin, Schropshire had no motive to lie about the matter. The court then evaluated as a “second element of reliability” whether the statement by Schropshire was actually made-an approach different from that of the Second Circuit, which for purposes of admissibility regards the credibility of the in-court witness as irrelevant. Casamento, 887 F.2d at 1170. The Fifth Circuit upheld the district court’s determination that Duke had fabricated the statement to help Bag-ley. In United States v. Silverstein, 732 F.2d 1338, 1346-47 (7th Cir.1984), the Seventh Circuit upheld the district court’s exclusion of a confession under Rule 804(b)(3). Silverstein, a member of the Aryan Brotherhood incarcerated in federal prison, was charged with murdering a black inmate. Another white inmate, Matthews, was called to testify for the defense. Matthews confessed to the murder but then, after the court’s intervention, invoked the Fifth Amendment, and the court instructed the jury to disregard Matthews’ statement. The defense then sought, unsuccessfully, to introduce evidence that Matthews had previously confessed to the FBI. The court of appeals found that there were strong indications that Matthews’ statements were totally fabricated. The court believed that Matthews was likely a sympathizer of the Aryan Brotherhood and had nothing to lose by risking a conviction for murder since he was already serving three life sentences. Furthermore, there was no clear corroboration for the truth of Matthew’s confession. Matthews was released from his cell into the cellblock corridor shortly before the victim’s body was discovered, but medical evidence showed that the victim was murdered earlier, and by two persons. In United States v. Satterfield, 572 F.2d 687, 690-93 (9th Cir.1978), the Ninth Circuit upheld the district court’s exclusion of a statement by a codefendant that exculpated the defendant. Satterfield and his codefendant, Merriweather, were charged with robbing two banks. Satterfield sought unsuccessfully to introduce hearsay evidence that Merriweather, during an argument with Satterfield, acknowledged that Satterfield was not involved in either robbery. The court of appeals noted that several circumstances corroborated the trustworthiness of Merriweather’s statements: 1) the statements were made spontaneously during an argument; 2) since Merriweather expressed concern about jeopardizing his appeal, he believed that his statements were against his penal interest, and 3) Merriweather accused Sat-terfield of breaking up his marriage, and his bad feelings toward Satterfield would presumable make him disinclined to exculpate Satterfield falsely. The court also noted several circumstances that indicated that Merriweather’s statements were not trustworthy: 1) Merriweather’s appeal was unlikely to succeed and therefore his statements were virtually risk-free, 2) the argument took place two years after the robberies, 3) no evidence substantiated the comments about Merriweather’s faded marriage, 4) Merriweather’s statement was not corroborated by other evidence-eight witnesses identified Satterfield as one of the robbers, and Satterfield’s alibis for the two robberies were, respectively, “strongly impeached” and “virtually demolished.” Id. at 693. The Ninth Circuit concluded that the district judge had not abused his discretion in concluding that Merriweather and Satterfield had staged the argument. While the facts of the cases discussed above do not perfectly match those in the present case, they are similar in several respects, and their analysis provides useful guidance. See also United States v. Bahadar, 954 F.2d 821 (2d Cir.1992) (first denying request for judicial immunity, then finding that hearsay statement was not reliable because declarant repeatedly changed his story); United States v. Gossett, 877 F.2d 901, 906-07 (11th Cir.1989) (upholding determination in mutiny case that confession by codefendant to cellmate was unreliable because it was contradicted by other evidence, notably testimony by defendant); United States v. Katsougrakis, 715 F.2d 769, 773-78 (2d Cir.1983) (upholding admission of self-inculpatory statements by coconspirator to friend and to wife); United States v. Thomas, 571 F.2d 285, 288-90 (5th Cir.1978) (requiring admission of codefendant’s statement that defendant was not involved in crime, because statement was made spontaneously and in presence of Magistrate, was inconsistent with codefendant’s plea, and was consistent with evidence showing that defendant’s participation in crime was minimal); DeBinder v. United States, 303 F.2d 203 (D.C.Cir.1962) (ordering hearing to test reliability of signed confession by twin brother of defendant). 2. Clear Corroboration of the Statement by Cherry to Thomas First I will consider whether the circumstances of Cherry’s statement to Thomas clearly corroborate its reliability, and then I will consider whether any evidence at trial clearly corroborates the truth of Cherry’s statement. I assume for purposes of this analysis, limited to the question of admissibility, that what Thomas describes in his affidavit actually took place and that Thomas did not concoct the events described in collaboration with Cherry or the defendants. See United States v. Casamento, 887 F.2d 1141, 1170 (2d Cir.1989). However, I set aside the question of Thomas’s credibility only for the present, because I may need to evaluate the likely impact of his testimony on a jury in order to determine whether a new trial is warranted. See Part III.D., infra. Courts have recognized multiple factors that are relevant to determining the reliability of an out-of-court confession. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Satterfield, 572 F.2d at 693 (listing circumstances that supported reliability and circumstances that detracted from reliability in that case). I find the following factors to be relevant to the reliability of Cherry’s statement to Thomas: First, the fact that a statement directly inculpates the declarant, and no one else, argues in favor of its reliability. See Lilly v. Virginia, 527 U.S. 116, 131, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (recognizing that confessions that additionally inculpate an accomplice are “inherently unreliable”); United States v. Matthews, 20 F.3d 538, 545 (2d Cir.1994) (“So much of a statement as simply implicates the declarant in a crime is generally trustworthy.... However, to the extent that the declarant’s statement implicates another person in the crime, it may in some circumstances constitute an attempt to minimize the declar-ant’s own culpability, or to shift blame to another, or to curry favor with authorities.”). Cherry identified only himself as the perpetrator of the murders, exculpating Camacho and “another person,” and not naming anyone as an accomplice. The timing of Cherry’s statement to Thomas undermines its reliability to some degree. The conversation took place in June of 1998, two years after the murders. See Chambers, 410 U.S. at 300, 93 S.Ct. 1038 (“[E]ach of McDonald’s confessions was made ... shortly after the murder had occurred.”); Latine, 25 F.3d at 1167 (“[T]he statement was made shortly after the criminal incident, thereby giving Salda-na little opportunity to reflect on the events and to prepare a story.”); Satterfield, 572 F.2d at 693 (“The substantial length of time between the robberies, which occurred in the late summer of 1974, and the declarations, which occurred in the fall of 1976, reduces their trustworthiness.”); United States v. Guillette, 547 F.2d 743, 754 (2d Cir.1976) (“Souca made his incriminating statement some four months after LaPolla’s death.”). The context of Cherry’s statement, on the other hand, supports its reliability. The statement was made spontaneously to a friend, in response to a casual remark. While Thomas and Cherry were sitting together, Thomas noticed that Camacho did not greet him, and Cherry explained that Camacho was in prison for a crime that Cherry committed. Courts have found such statements to be more reliable than statements made in response to coercive questioning by police officers or prosecutors. See Lilly, 527 U.S. at 139, 119 S.Ct. 1887 (“Mark was in custody for his involvement in, and knowledge of, serious crimes and made his statements under the supervision of governmental authorities. He was primarily responding to the officers’ leading questions.... Thus, Mark had a natural motive to attempt to exculpate himself as much as possible.”); Chambers, 410 U.S. at 300, 93 S.Ct. 1038 (“[E]ach of McDonald’s confessions was made spontaneously to a close acquaintance .... ”); Latine v. Mann, 25 F.3d 1162, 1167 (2d Cir.1994) (“Saldana made the statement to a perceived ally, not to law enforcement officials.... ”); DeVillio, 983 F.2d at 1190 (“Heidel did not make the statement “spontaneously” because at the time the tape was made, he was cooperating with the Government and wearing a wire during a continuing investigation.”); United States v. Katsougrakis, 715 F.2d 769, 775 (2d Cir.1983) (“The declarant was ... talking privately with his friend when the challenged admission was made. He was not conversing with police or other government agents whose favor he might be expected to curry.”); see also Matthews, 20 F.3d at 545-46; Salvador, 820 F.2d at 562; Satterfield, 572 F.2d at 693; Bagley, 537 F.2d at 165-67; Thomas, 571 F.2d at 289. The reliability of Cherry’s statement to Thomas would be diminished if Cherry had a motive to lie. Since Cherry was a member of the C & C gang and a codefendant of Camacho and Rodriguez, there is reason to believe that he would want to help them. See Salvador, 820 F.2d at 562 (“Guzman was not clearly trustworthy since he knew Oscar and may have had reason to lie for him .... ”); see also United States v. Duke, 255 F.3d 656, 658-60 (8th Cir.2001) (confession by brother of defendant); Silverstein, 732 F.2d at 1346 (confession by white inmate, presumed to sympathize with Aryan Brotherhood and therefore to be allied with defendant, who was member of Aryan Brotherhood). However, assuming that Thomas is telling the truth, there is no reason to believe that Cherry expected his spontaneous remark to a friend to be conveyed to this Court and used as evidence exculpatory of Camacho and Rodriguez. See Katsougrakis, 715 F.2d at 778 (“Chrisanthou had no motive to lie to his wife.... ”); Bagley, 537 F.2d at 167 (“[T]he record is completely devoid of evidence of any motive for Schropshire to misrepresent this matter to Duke. At the time that the statement was purportedly made, neither Duke nor Schropshire could have known that Bagley had been searched and that the heroin had been discovered. Schropshire therefore could not have intended to help Bagley....”). In comparable circumstances, the Second Circuit has recently noted: In the present case, we are persuaded that the trustworthiness condition was met, given the circumstances and content of Prater’s statements. The statements were not made to law enforcement authorities, were not made in response to questioning, and were not made in a coercive atmosphere. Rather, they were volunteered by Prater to his girl-friend, an intimate and confidante, in the private recesses of their home. There were no coercive pressures, and there was no attempt to curry favor with authorities. Indeed, when he made the statement to Dunbar, Prater had no reason to expect that his admission would ever be disclosed to the authorities. Matthews, 20 F.3d at 5