dissenting:
I cannot agree with the majority’s conclusion that appellants were deprived of their right to a fair trial. In my view, the trial court properly admitted the affidavits of appellants’ former spouses into evidence. For this reason, I dissent.
On their face, all three affidavits were well within the scope of the personal or family history exception to the hearsay rule, as contemplated by F.R.E. 804(b)(4). Moreover, Cruz and Hernandez both knew that their sworn statements were being taken by INS investigators to determine whether there had been any violations of immigration laws, including criminal violations. The statements given by Cruz clearly implicated her as a willing accomplice to a criminal violation of these laws, and, as such, fell within the scope of F.R.E. 804(b)(3) as a statement against her penal interest. The trial judge also had a basis for admitting the Hernandez affidavit as a statement against his penal interest because it revealed that his marriage to Martha Sanchez (now Carvalho) had ended long before he filed the petition for permanent residency on her behalf. As we noted in United States v. MacDonald, 688 F.2d 224, *153233 (4th Cir.1982), “our role in reviewing decisions at nisi prius construing Rule 804(b)(3) is a limited one. We must uphold the trial court unless it has abused its discretion.” Unlike the majority, I can find no abuse of discretion or error of law in the admission of the three affidavits.
Furthermore, the record reflects that this evidence was admitted for the limited purpose of showing appellants’ knowledge of immigration laws and procedures.1 Appellants were charged in this case with using counterfeit alien registration cards. Their knowledge that the cards were counterfeit was crucial to the jury’s determination of guilt or innocence. Both appellants had a history of prior dealings with the INS and, as the majority notes, both had disappeared once before when they were ordered deported. The affidavits, which alluded to the Carvalhos’ earlier attempts to secure permanent resident status by marrying United States citizens, were highly relevant to show appellants’ knowledge of immigration requirements and to rebut their “uncontradicted” testimony that they believed their cards were genuine.
Principles of trial fairness extend to the prosecution as well as criminal defendants. How else in such cases can the government attempt to rebut subjective statements of intent other than as it did here by showing the inconsistency between defendants’ testimony and their previous mode of conduct? The Carvalhos’ past actions belied their testimony and the jury clearly had a right to hear this rebuttal evidence.
One final point: the majority complains of “overkill” by the prosecution for introducing too much evidence; however, it concedes that, apart from the affidavits, the remaining evidence may indeed be sufficient to sustain the convictions. At the same time the majority also concludes that the admission of the affidavits was not harmless error, merely stating that the government has never argued harmless error and that the affidavits were connected with the crucial trial issue of appellants’ knowledge. I am not persuaded. The majority has not demonstrated, at least to my satisfaction, that in the total setting of the case the admission of the affidavits had substantial influence on the jury’s verdict.
Because I am satisfied that the trial judge in this case properly admitted the affidavits, and finding no error otherwise in the proceedings below, I would affirm appellants’ convictions.
. F.R.E. 404(b) provides that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.