## Facts

- The government prosecuted Delmer E. Day and Johnny A. Pack for a scheme involving false tax returns and related check-conversion activity.
- Clarence Moore was tried jointly as a codefendant; he was acquitted, while Day and Pack were convicted on all counts.
- Before Moore’s arrest, law-enforcement agents conducted and recorded an interview with him, advising him of certain rights and indicating he was not then the subject of a criminal investigation.
- In the recorded interview, Moore minimized his own role and blamed Day and Pack, describing Day as a “crook” and portraying Pack as chiefly responsible for check conversions.
- At trial, Moore testified, but his testimony materially differed from the recorded interview.
- Over objection, the district court permitted the jury to hear portions of the recorded interview; the statement was not shown to have been made under oath or under penalty of perjury.
- Day and Pack appealed, arguing the recording was inadmissible hearsay and that its admission in a joint trial caused unfair prejudice.

## Issues

1. Whether an unsworn, recorded interview with law-enforcement agents can be admitted as non-hearsay substantive evidence as a prior inconsistent statement under Federal Rule of Evidence 801(d)(1)(A).
2. Whether admitting a codefendant’s out-of-court accusations against other defendants in a joint trial caused unfair prejudice warranting reversal.
3. If admission was erroneous, whether the error was harmless in light of the remaining evidence.

## Decision

- The Sixth Circuit reversed Day’s and Pack’s convictions and remanded for further proceedings.
- The court held Moore’s recorded interview did not qualify as a non-hearsay prior inconsistent statement under Rule 801(d)(1)(A) because it was not given under oath in a qualifying proceeding.
- The court concluded the improper admission of the recording as substantive evidence was not harmless because the statements directly implicated Day and Pack and were central to the prosecution’s theory.

## Legal Principles

- A prior inconsistent statement is admissible as non-hearsay substantive evidence under Federal Rule of Evidence 801(d)(1)(A) only if the declarant testifies and is subject to cross-examination, and the prior statement was made under oath subject to perjury at a trial, hearing, other proceeding, or deposition.
- Unsworn statements made during law-enforcement interviews do not satisfy Rule 801(d)(1)(A)’s oath and proceeding requirements and remain hearsay when offered for their truth.
- When inadmissible hearsay that directly inculpates defendants is presented as substantive proof in a joint trial, reversal is required if the government cannot show the error did not affect the verdict.

## Conclusion

The Sixth Circuit ordered a new trial because the jury heard an unsworn taped police interview that did not meet Rule 801(d)(1)(A)’s requirements and that likely influenced the verdict against the remaining defendants.


United States v. Day, 789 F.2d 1217 (6th Cir. 1986)