Opinion and Order Granting Motion to Exclude — No. 4:20-cr-00452 (Dkt. 168, S.D. Tex.)

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Opinion and order of the U.S. District Court for the Southern District of Texas by Judge Charles Eskridge, United States v. William Dexter Lucas, et al., case 4:20-cr-00452, Document 168, entered April 29, 2022, granting the government's motion to exclude (Dkt 120). The defendants William Dexter Lucas, Deborah Jean Lucas and Brian Michael Corpian are charged with offenses including conspiracy to commit bank and wire fraud under 18 USC § 1349, arising from loan applications including a $50,000 Paycheck Protection Program loan to Jesus Survives Ministries Inc in April 2020. The court excludes an affidavit dated August 18, 2020 in which Corpian attests that he alone altered the financial documents, finding it hearsay that fits no available exception. It notes that the defendants may raise the issue again at trial outside the presence of the jury.

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Case 4:20-cr-00452 Document 168 Filed on 04/29/22 in TXSD Page 1 of 14
United States District Court
Southern District of Texas

ENTERED
April 29, 2022
Nathan Ochsner, Clerk

United States District Court
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

UNITED STATES OF § CIVIL ACTION NO.
AMERICA, § 4:20-CR-00452
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
WILLIAM DEXTER §
LUCAS, et al, §
Defendants. §

OPINION AND ORDER
GRANTING MOTION TO EXCLUDE

The motion by the Government to exclude an affidavit
executed by one of the Defendants in this action that seeks
to incriminate himself and exculpate his co-Defendants is
granted. Dkt 120. The affidavit is hearsay that doesn’t fit
within an available exception.
1. Background
The United States charges Defendants William Dexter
Lucas, Deborah Jean Lucas, and Brian Michael Corpian
with conspiracy to commit bank and wire fraud in violation
of 18 USC § 1349, false statements to a bank in violation of
18 USC § 1014, wire fraud in violation of 18 USC § 1343,
money laundering in violation of 18 USC § 1957, and false
statements to the Federal Trade Commission in violation
of 18 USC § 1001. These charges resulted from various loan
applications, including an application for and receipt of a
$50,000 Paycheck Protection Program loan by Jesus
Survives Ministries Inc in April 2020 at the outset of the
COVID-19 pandemic. Dkt 147.
Corpian is represented by counsel. But acting on his
own, and without the knowledge of his counsel, he filed an
Case 4:20-cr-00452 Document 168 Filed on 04/29/22 in TXSD Page 2 of 14

incriminating affidavit under seal on August 2, 2021.
Dkt 62. He also attached the same affidavit to a motion to
continue that he filed on August 6, 2021. Dkt 65.
The Corpian affidavit is dated August 18, 2020—three
months after federal agents interviewed Defendants on
May 19th, and about a month before they were indicted on
September 17th. It contains seventeen paragraphs
initialed by Corpian and is signed by both him and a notary
public. Dkts 62 & 65. Corpian attests in this affidavit that
he alone altered the financial documents used to obtain the
PPP loan at issue. Dkt 62 at 1–2; Dkt 65 at 4–5. He also
states that he used various email accounts of William and
Deborah Lucas without their permission in the process of
obtaining the loan. Dkt 62 at 3; Dkt 65 at 6. And he recants
certain statements that he made to federal agents during
the May 2020 interview that implicated William and
Deborah Lucas. Dkt 62 at 3, 5; Dkt 65 at 6, 8.
William and Deborah Lucas separately moved to sever
their trials from Corpian. Dkts 34 & 61. The motions were
denied at hearing on December 16, 2021, for failure to
demonstrate the “exculpatory nature and effect” of
Corpian’s potential testimony and the “willingness of”
Corpian to testify at a severed trial. Dkt 115, citing United
States v Tencer, 107 F3d 1120, 1133 (5th Cir 1997). Corpian
attended the hearing and through counsel invoked his
Fifth Amendment right to remain silent.
That hearing also touched on the potential
admissibility of the Corpian affidavit. The Government
was instructed to file the present motion to exclude.
Dkts 115 & 120. The Government contends that the
affidavit is hearsay without an exception. William and
Deborah Lucas argue in response that the affidavit may be
admitted under either Rule 804(b)(3) or Rule 807 of the
Federal Rules of Evidence. Dkts 127 & 128.
2. Legal standard
Rule 801 of the Federal Rules of Evidence defines
hearsay as “a statement that (1) the declarant does not
make while testifying at the current trial or hearing; and

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(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.” Rule 802 states that
hearsay isn’t admissible at trial unless the evidentiary
rules, a federal statute, or other rule prescribed by the
Supreme Court provides otherwise. But exceptions apply,
as explained and considered below.
When a party makes a proper objection to a statement
on hearsay grounds, the proponent must demonstrate by a
preponderance of the evidence that the statement either
isn’t hearsay or qualifies for admission under an applicable
hearsay exception. See Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 6803 (Westlaw
2021), citing United States v Cornett, 195 F3d 776, 782
(5th Cir 1999), and Bourjaily v United States, 483 US 171,
175 (1987).
3. Rule 804
Rule 804 provides a hearsay exception where the
declarant is unavailable to testify as a witness. It begins by
specifying the five instances in which a declarant is
considered unavailable. One is where he or she “is
exempted from testifying about the subject matter of the
declarant’s statement because the court rules that a
privilege applies.” FRE 804(a)(1).
But unavailability alone isn’t provision for the
wholesale admissibility of that declarant’s hearsay.
Indeed, it’s merely a prerequisite to six exceptions to the
general rule excluding hearsay outlined in Rule 804(b).
Among these exceptions is Rule 804(b)(3), which provides
that the general rule doesn’t apply to an unavailable
declarant’s statements against interest, so long as the
statement falls within the following metes and bounds:
A statement that (A) a reasonable person
in the declarant’s position would have
made only if the person believed it to be
true because, when made, it was so
contrary to the declarant’s proprietary or
pecuniary interest or had so great a
tendency to invalidate the declarant’s

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claim against someone else or to expose the
declarant to civil or criminal liability; and
(B) is supported by corroborating
circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal
case as one that tends to expose the
declarant to criminal liability.
A party in a criminal proceeding who offers a hearsay
statement under Rule 804 must therefore demonstrate
three things—first, that the declarant is unavailable as
defined by Rule 804(a); second, that the statement subjects
the declarant to criminal liability such that a reasonable
person wouldn’t have made the statement unless he
believed it to be true; and third, that corroborating
circumstances clearly indicate its trustworthiness. United
States v Bell, 367 F3d 452, 466 (5th Cir 2004).
a. Unavailability to testify
Corpian has invoked his Fifth Amendment right
against self-incrimination. Dkt 115. A witness who invokes
that privilege is considered unavailable within the
meaning of Rule 804(a)(1). United States v Piper, 912 F3d
847, 856 (5th Cir 2019, per curiam). As such, the
Government rightly concedes that Corpian is unavailable
for present purposes. Dkt 120 at 11.
b. Statement against penal interest
The Corpian affidavit contains a direct confession to
the crimes for which he’s being charged. It would appear
quite obviously to be against his penal interests. See
United States v Sarmiento-Perez, 633 F2d 1092, 1101
(5th Cir 1981).
The Government nonetheless contends, “Corpian was
pressured to take the fall by a co-conspirator who faced
more significant penalties due to a more extensive criminal
history.” Dkt 120 at 12. Perhaps. But the Government
presents no evidence at this time indicating, in fact, that
Corpian was pressured to create the affidavit in question.
Corpian himself has explicitly denied this contention.
Dkt 102 at 2.

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In any event, a respected treatise observes that the
second prong of Rule 804(b)(3) is an objective inquiry.
Wright & Miller, Federal Practice and Procedure § 6994.
It asks whether a reasonable person in the declarant’s
position would have made the statement only if he believed
it to be true. Id at § 6995. On the present record, no
reasonable person in Corpian’s position would create such
an affidavit and then submit it to the court in which he’s
being tried unless he believed it to be true.
c. Corroborating circumstances
Statements offered under Rule 804 must “bear
adequate indicia of reliability, such that adversarial
testing would be expected to add little, if anything, to the
statements’ reliability.” Piper, 912 F3d at 856–57
(quotation marks and citation omitted). A district court
may properly consider “any corroborating circumstances”
so long as the statement at issue doesn’t implicate the
confrontation rights of any defendant. United States v
Dean, 59 F3d 1479, 1493 (5th Cir 1995).
Two forms of corroboration are particularly relevant.
First, courts assess whether other evidence is consistent
with the hearsay statement. Wright & Miller, Federal
Practice and Procedure § 6999. Second, courts assess
“evidence regarding the circumstances surrounding the
making of the statement.” Ibid.
i. Consistency with other evidence
The Corpian affidavit isn’t entirely contrary to record
evidence. But on the whole, it simply isn’t consistent with
the evidence currently before the Court. Addressing each
declaratory assertion in turn highlights this inconsistency.
First, the affidavit alleges that Corpian applied for the
PPP loan with several banks acting as an employee/owner
of Jesus Survives Ministries Inc. Dkt 65 at 4. This conforms
with statements made by William Lucas that he tasked
Corpian with submitting the PPP loan application for JSM.
Dkt 120 at 4–5. And the application originated from an IP
address at 20134 Larkspur Landing, Richmond, Texas.
Corpian resided there, but so did William and Deborah

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Lucas. Id at 2. More importantly, Deborah Lucas told
agents that she and William Lucas applied for the PPP loan
and that Corpian didn’t help. Id at 4.
Second, the affidavit contends that Corpian “altered
documents which included business accounting, IRS tax
forms, IRS tax identification and other related documents.”
Dkt 65 at 5. It also states that he produced and submitted
the altered documents of his own volition, and that William
and Deborah Lucas had no knowledge of these alterations.
It’s true that altered documents were submitted to obtain
the PPP loan. See Dkt 120 at 2–3, 6 n 2. But the assertion
that William and Deborah Lucas lacked knowledge is
contradicted by other statements Defendants made to
agents during the May interview. For instance, Deborah
Lucas told agents that she and William Lucas submitted a
Form SS-4 knowing that the employer identification
number wasn’t assigned to JSM. Id at 4. William Lucas
identified and claimed two pertinent paystubs. Id at 6. He
also confirmed that a falsified IRS Form I-9 bears his
signature. Id at 7. And Corpian told agents that William
Lucas filled out a particular Form 941 as well as certain
lease documents, later asking Corpian to sign them. Id at 7;
see also Dkt 40 at 36.
Third, the affidavit suggests that Corpian assumed the
identities of William and Deborah Lucas (as well as that of
Florine Constance Lucas, the late ex-wife of William Lucas)
to secure credit without their consent or knowledge. Dkt 65
at 5–6. No evidence currently before the Court supports or
contradicts this claim.
Fourth, the affidavit asserts that Corpian used email
addresses belonging to William and Deborah Lucas since
March 2014 without their consent or knowledge. Dkt 65
at 6. Corpian during his interview with agents stated that
he sometimes used the JSM email address of William
Lucas, and he identified several emails he sent to
Allegiance Bank from that email account. Dkt 120 at 7. But
each email so identified bore a signature block with
Corpian’s name. Ibid. And other emails were sent to
Allegiance Bank from this email address without such a

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signature block. Dkt 130 at 3. This at least plausibly
suggests that some emails at issue didn’t originate from
Corpian.
Fifth, the affidavit notes that neither William nor
Deborah Lucas ever had access to the altered documents
because Corpian erased “all records of their transmittal
and copies of the same” from the computer used to send the
application. Dkt 65 at 7. Nothing currently before the
Court supports or contradicts this assertion. But the
suggestion that William and Deborah Lucas never had
access to the altered documents is contradicted by their
statements noted above.
Sixth, the affidavit contends that neither William nor
Deborah Lucas had authority over Corpian or ever
instructed or supervised him. Dkt 65 at 7. But as already
noted, William Lucas told federal agents that he tasked
Corpian with submitting the PPP loan. Dkt 120 at 5.
William Lucas also stated that he decided how much JSM
paid Corpian. Ibid.
Seventh, the affidavit claims that Corpian provided
JSM information technology and office management
services—and that he was therefore solely responsible for
applying for and obtaining credit, loans, and other grants
for the church. Dkt 65 at 7. Corpian stated during the May
interview that he was an associate pastor and internet
manager for JSM. Dkt 120 at 7. But nothing in the record
supports the breadth of this overall contention.
Eighth, the affidavit states that Deborah Lucas opened
a bank account “to negotiate the funds of said loan,” but
that she had no knowledge of the falsified documents that
secured the loan. Dkt 65 at 7–8. To the contrary, the Bank
of America account that received the funds was opened by
Florine Constance Lucas, not Deborah Lucas. Dkt 120 at 3.
And again, the evidence outlined above (including
statements from Deborah Lucas herself) contradicts the
claim that she had no knowledge of the falsified documents.
Ninth, the affidavit declares that Corpian made certain
statements to federal agents during the May interview

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because an agent “repeatedly and forcibly attempted to
coerce me in to validating his false narrative or belief”
regarding the actions of William Lucas. Dkt 65 at 8.
Nothing corroborates this claim. In fact, the Court has
already found that the questions posed by agents to
William and Deborah Lucas during the May interview
weren’t accusatory and that the statements made by the
Lucases were voluntary. Dkt 125 at 111–14 (denying
motions to suppress); see also Dkt 124 at 91–170 (Agent
Matthews testimony); Dkt 125 at 6–39 (Agent Gregory
testimony); id at 40–83 (Agent Boxie testimony). Nothing
suggests that the interview with Corpian proceeded along
any different course. But even excepting statements made
by Corpian to agents, statements made by William and
Deborah Lucas that contradict the affidavit remain.
The foregoing makes clear that evidence currently
before the Court isn’t consistent with the Corpian affidavit.
ii. Circumstances of the making of the
statement
When assessing the circumstances surrounding the
making of a statement, courts must consider (i) whether
the declarant had at the time of making the statement
pleaded guilty or was still exposed to prosecution for
making the statement and the extent to which the
declaration is truly against the declarant’s penal interest;
(ii) the timing of the statement and whether the statement
was made spontaneously; (iii) whether other people heard
the out-of-court statement and the party or parties to
whom the statement was made; (iv) whether the declarant
repeated the statement and did so consistently; (v) the
relationship of the declarant with the accused, and
whether there was any apparent motive or reason for the
declarant to lie or misrepresent the matter; (vi) whether
the statements were made under oath or made after
Miranda warnings were given; and (vii) the nature and
strength of independent evidence relevant to the conduct
in question. United States v Kelley, 2007 WL 704003, *3
(SD Tex), citing United States v Lowe, 65 F3d 1137, 1145–
46 (4th Cir 1995); United States v Rasmussen, 790 F2d 55,

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56 (8th Cir 1986); United States v Guillette, 547 F2d 743,
754 (2d Cir 1976); United States v Thomas, 571 F2d 285,
290 (5th Cir 1978); see also Wright & Miller, Federal
Practice and Procedure § 6999.
As to the exposure of the declarant to prosecution and
the extent to which the statement is against his penal
interest, the Corpian affidavit was signed on August 18,
2020. Dkt 65 at 9. This is approximately three months after
the May interview and one month before Defendants were
indicted. Corpian was therefore still exposed to prosecution
at the time he made the statement, and the statement was
certainly against his penal interest. But Corpian also
claims that he wrote it because his “health was severely
deteriorating at the time” and he believed he might die.
Dkt 59 at 6. And as one court aptly noted, potential
criminal liability is “of no moment to a dead man.” United
States v Angleton, 269 F Supp 2d 878, 890 (SD Tex 2003)
(quotation marks and citation omitted). This factor is
neutral.
As to the timing and spontaneity of the statement, the
affidavit certainly wasn’t spontaneous. It instead reflects a
great degree of planning and forethought. Corpian did
ultimately send the affidavit to this Court. Dkts 62 & 65.
But with the indictments issuing in September 2020, he
had waited almost a full year before doing so. Dkt 52. And
he did so only in the context of a dispute with his attorney
after discovering that his co-Defendants had possession of
the affidavit and planned to introduce it at trial. Dkts 62
& 65. This factor favors exclusion.
As to the witnesses to the statement, Corpian swore to
the affidavit before notary public Drew E. Bizzell. Dkt 65
at 9. Confessing to a crime before a notary is a curious
choice, to say the least. And how William and Deborah
Lucas then came into possession of the affidavit and under
what conditions (if any) is unknown. The strange
circumstances in which this affidavit arose renders this
factor neutral. See United States v Johnson, 19 F Supp 2d
720, 725 (WD Tex 1998).

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As to whether the declarant repeated the statement and
did so consistently, Corpian has affirmed the affidavit at
several junctures. See Dkts 59, 62, 65, 102, & 104. But he’s
also contradicted it. For instance, his affidavit purports to
take full responsibility for the allegedly unlawful PPP loan.
See Dkt 65 at 4–9. But in one letter to the Court, he
appeared to also implicate Florine Constance Lucas.
Dkt 59 at 6; Dkt 120 at 5. And in an email to his attorney
on which he copied the Case Manager, Corpian squarely
stated that Florine Constance Lucas was “the real ring
leader.” Dkt 118-3 at 1. This factor weighs slightly in favor
of exclusion.
As to motives or reasons for the declarant to lie or
misrepresent the matter, several apparent motives exist.
Corpian and the Lucases lived together at 20134 Larkspur
Landing and continued to live together when they moved
to College Station in June 2020. Dkt 40 at 18–19. Corpian
maintained a familial relationship with William and
Deborah Lucas, and he refers to them as his parents. For
example, see Dkt 118-2 at 1; Dkt 118-3 at 1–2. And William
and Deborah Lucas both told federal agents during the
May interview that Corpian was their stepson. Dkt 130
at 5. William and Deborah Lucas are also both older and in
poor health, with William Lucas facing significantly more
liability for any involvement in the allegedly unlawful
acquisition of the PPP loan due to his prior criminal
history. Corpian did state that he doesn’t believe that his
co-Defendants are abusive or otherwise using him to take
the fall. Dkt 102 at 2. But nothing rules out the possibility
that Corpian was willingly sacrificing himself for those he
considered parents. Additionally, August 2020 was a time
when Corpian apparently experienced serious health
issues, thought he might die, and thus wouldn’t have had
to face any charges. Dkt 59 at 6. This factor favors
exclusion.
As to whether the statements were made under oath and
with knowledge of the Fifth Amendment right to silence,
Corpian made the affidavit under oath to a notary public.
He stated in the affidavit that he was aware of his right

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against self-incrimination, citing Miranda v Arizona.
Dkt 65 at 4. And though Corpian didn’t have a lawyer at
the time of the statement, he submitted the affidavit to this
Court when he had a lawyer and after being formally
advised of his Miranda rights. Still, the fact that he filed
the affidavit and made many of his inculpatory statements
during a dispute with his attorney bears consideration.
Dkts 56, 57, 59, 65, 98, 102, & 104. This factor weighs
slightly against exclusion. But then again, it simply serves
to emphasize the planned and non-spontaneous nature of
the hearsay statements.
As to corroboration by other evidence, the nature and
strength of independent evidence relevant to the conduct
in question has been thoroughly discussed above. In short,
the evidence at hand in large measure contradicts the
affidavit. This factor heavily favors exclusion.
As to other considerations, though Corpian signed his
affidavit before this action commenced, his erratic behavior
over the course of litigation bears on the trustworthiness of
his affidavit. See Dean, 59 F3d at 1493; cf United States v
Walker, 410 F3d 754, 758 (5th Cir 2005). The relationship
between Corpian and his attorney deteriorated over the
course of this action. Dkt 56. This break came to a head
when Corpian learned that his co-Defendants and the
prosecutor had possession of his affidavit. Dkts 118-2
& 118-3. As a result, counsel for Corpian filed a motion to
withdraw and Corpian filed a complaint of prosecutorial
and defense-counsel misconduct. Dkts 56 & 59. Corpian
also blind-copied the Case Manager on his responses to a
series of emails sent to his own counsel. Dkts 118-1, 118-2,
& 118-3. Corpian there admitted to the use of fentanyl and
oxycontin. Dkt 118-3 at 1. He was ordered to cease all such
communications. Dkt 57. But he subsequently filed the
affidavit in question under seal on August 2nd. Dkt 62. And
four days later he moved for a continuance as to a hearing
on August 9th, attaching the affidavit to that motion as
well. Dkts 64 & 65. Corpian then removed his monitoring
device and fled to California, where he was later
apprehended. ME of 08/09/2021 & Dkt 84; Walker, 410 F3d

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at 757 (disappearance of declarant before trial
demonstrates lack of trustworthiness). He later filed three
more documents alleging his counsel was ineffective, but
his relationship with counsel was restored at ex parte
hearing on December 10th. Dkts 98, 102, & 104; ME of
12/10/2021. Corpian then invoked his Fifth Amendment
right to silence at a lengthy hearing on December 16th in
the face of questioning by counsel for William and Deborah
Lucas about the affidavit. Dkt 115. This volatility favors
exclusion.
Based on the above, the affidavit in question doesn’t
bear adequate indicia of reliability. To the contrary, the
facts before the Court—including Corpian’s own erratic
conduct—undermine the trustworthiness of the document.
The hearsay exception of Rule 804 doesn’t apply to the
affidavit.
4. Rule 807
Rule 807 is a residual exception designed to encompass
unforeseen circumstances in which sufficient indicia of the
inherent trustworthiness of a hearsay statement exists,
but the statement isn’t covered by an existing hearsay
exception. It states:
Under the following conditions, a hearsay
statement is not excluded by the rule
against hearsay even if the statement is
not admissible under a hearsay exception
in Rule 803 or 804:
(1) the statement is supported by sufficient
guarantees of trustworthiness—after
considering the totality of circumstances
under which it was made and evidence, if
any, corroborating the statement; and
(2) it is more probative on the point for
which it is offered than any other evidence
that the proponent can obtain through
reasonable efforts.
A respected treatise observes that the “first restriction
is the key substantive criteria for admission.” Wright &

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Miller, Federal Practice and Procedure § 7063; Walker,
410 F3d at 758. A court must therefore find that the
declarant “was particularly likely to be telling the truth
when the statement was made.” Ibid (quotation marks and
citation omitted). And the Fifth Circuit holds that Rule 807
“is to be used only rarely, in truly exceptional cases.”
Walker, 410 F3d at 757. The proponent thus “bears a heavy
burden to come forward with indicia of both
trustworthiness and probative force.” United States v El-
Mezain, 664 F3d 467, 498 (5th Cir 2011) (quotation marks
and citation omitted).
Deborah Lucas cites United States v Slatten, 865 F3d
767 (DC Cir 2017). The DC Circuit there found Rule 807 to
apply because the non-testifying co-defendant had the
incentive to speak truthfully, he consistently reported the
essential details of his story, and the evidence corroborated
his statements. Id at 808. None of that can be said here.
Indeed, much of the discussion about Rule 804 indicates
why the Corpian affidavit isn’t exceptional within the
comprehension of Rule 807, as it finds that Corpian had
several incentives to lie, hasn’t consistently adhered to
statements contained within the affidavit, and more
evidence than not contradicts the affidavit. In short, the
affidavit is in no way supported by guarantees of
trustworthiness.
The residual hearsay exception of Rule 807 doesn’t
apply.
5. Conclusion
The motion by the United States of America to exclude
Defendant Brian Corpian’s August 18, 2020, affidavit is
GRANTED.
Not presently before the Court is fulsome testimony of
what Defendants allegedly told federal agents on the day
of the subject interviews. This Order thus necessarily relies
on representations by the Government as to what the
agents will ultimately testify to in that regard. Their
testimony at trial could potentially change disposition of
the present motion. Defendants may thus raise further

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motion in this regard during trial outside the presence of
the jury.
SO ORDERED.

Signed on April 29, 2022, at Houston, Texas.

__________________________
Hon. Charles Eskridge
United States District Judge

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