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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1755
UNITED STATES,
Appellee,
v.
MICHAEL SPOSITO,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin and Campbell, Senior Circuit Judges. _____________________
_____________________
Seth M. Kalberg, by appointment of the Court, for appellant. _______________
Cynthia A. Young, Attorney, U.S. Department of Justice, with ________________
whom Donald K. Stern, United States Attorney, Ernest S. DiNisco ________________ _________________
and James D. Herbert, Assistant United States Attorneys, were on ________________
brief for appellee.
____________________
February 18, 1997
____________________
TORRUELLA, Chief Judge. Defendant-appellant Michael TORRUELLA, Chief Judge. ____________
Sposito was convicted of illegal gambling and aiding and abetting
illegal gambling in violation of 18 U.S.C. 1955. He now
appeals the district court's denial of his motion to dismiss for
violation of the Speedy Trial Act ("STA"), 18 U.S.C. 3161-
3167, and the district court's admission into evidence of the
prior immunized testimony of Louis Padova under the residual
exception to the hearsay rule.
I. The Speedy Trial Act I. The Speedy Trial Act ____________________
A. Standard of Review A. Standard of Review
In reviewing an STA ruling, we examine factual
questions under a clear error standard and legal determinations
de novo. See United States v. Rodr guez, 63 F.3d 1159, 1162 (1st _______ ___ _____________ _________
Cir.), cert. denied, 116 S. Ct. 681 (1995). ____________
B. The Legal Framework B. The Legal Framework
At issue is 18 U.S.C. 3161 et seq., which require ________
that:
the trial of a defendant charged in an
information or indictment with the
commission of an offense shall commence
within seventy days from the filing date
(and making public) of the information or
indictment, or from the date the
defendant has appeared before a judicial
officer of the court in which such charge
is pending, whatever date last occurs.
18 U.S.C. 3161(c)(1); see also Henderson v. United States, 476 ________ _________ _____________
U.S. 321, 322 (1986). If the defendant is not brought to trial
within the seventy day time period, "the information or
indictment shall be dismissed on motion of the defendant." 18
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U.S.C. 3162(a)(2); see Rodr guez, 63 F.3d at 1162. Not every ___ _________
day between the indictment or appearance and the start of trial
is counted, however. Section 3161(h) provides a list of
circumstances in which the STA is tolled.
The question before us, therefore, is whether seventy
countable days passed between the indictment of Sposito on
April 13, 1994, and the start of the trial on January 17, 1995.
There are several periods of time in dispute, but we need only
consider the last of these -- from December 1, 1994 to January
13, 1995.1 Defendant states that 41 countable days passed prior
to December 1, 1994. Because we find that there were no
countable days from December 1, 1994 to January 13, 1995,
defendant's claim under the STA must fail, regardless of how we
would rule on the earlier periods.
On November 30, 1994, the previously scheduled trial
date of December 12 was postponed indefinitely. At that time,
the government's motion in limine to restrict the cross-
examination of certain law enforcement witnesses, filed on
November 8, was pending. The motion in limine was eventually
heard during the trial, with argument on the motion taking place
on January 31, 1995. We must decide whether the motion in limine
tolled the STA clock from November 8 to January 13.
Three principal sources of authority frame our
decision. First, there is the statute, which requires that
____________________
1 Although the trial started on January 17, the parties agree
that the filing of the January 13 motion to dismiss for violation
of the STA tolled the STA clock.
-3-
"delay resulting from any pretrial motion, from the filing of the
motion through the conclusion of the hearing on, or other prompt
disposition of, such motion" be excluded from the time counted
against the STA. 18 U.S.C. 3161(h)(1)(F). Congress chose not
to include any explicit exceptions in the statutory language.
Yet Congress was conscious of the possible need for more flexible
exclusion requirements, as demonstrated by other parts of the
statute. For example, in section 3161(h)(8)(A), the Act excludes
periods of delay resulting from a continuance, but only when the
trial court sets forth, in the record, its reasons for finding
that "the ends of justice served by taking such action outweigh
the best interest of the public and the defendant in a speedy
trial." 18 U.S.C. 3161(h)(8)(A).
Second, in Henderson v. United States, 476 U.S. 321, _________ _____________
327 (1986), the Supreme Court held that "Congress intended
subsection (F) to exclude from the Speedy Trial Act's 70-day
limitation all time between the filing of a motion and the
conclusion of the hearing on that motion, whether or not a delay
in holding that hearing is 'reasonably necessary.'" Id. In ___
Henderson, a motion to suppress was filed on November 3, 1980, _________
and a hearing was held on March 25, 1981, at which the trial
court "declined to reach a final decision because it needed
further information. The court did not receive all filings in
connection with the motion until December 15, 1981." Id. at 332 ___
(citations omitted). The Court excluded all of this time under
section 3161(h)(8)(F). Id. ___
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Finally, we are bound by our own ruling in United ______
States v. Rojo-Alvarez, 944 F.2d 959 (1st Cir. 1991). In Rojo- ______ ____________ _____
Alvarez, the government filed a motion in limine on March 8, _______
1990. On April 5, 1990, the district court reserved ruling on
the merits of the motion until trial. On appeal, this court
stated that:
[w]e do not believe that a court should
put off consideration of a motion and
exclude the time during which the motion
lies dormant. However, when the court is
presented with papers styled as a motion,
whether it ultimately determines that the
filing is a pretrial motion or an 'other
proceeding' under (J), the court is
entitled to exclude at least the period
of time during which it considers how to
treat the filing.
Id. at 966. The court in Rojo-Alvarez disposed of the case by ___ ____________
excluding the time between the filing of the motion and the date
upon which it was reserved. The panel's language regarding the
time a motion lies dormant did not affect the outcome of the
case.2
In the instant case, the government filed its motion in
limine on November 8, 1994. As an initial matter, motions in
____________________
2 Cf. United States v. Clymer, 25 F.3d 824, 829-30 (9th Cir. ___ _____________ ______
1994) (finding that time after the district court explicitly
postponed ruling on the relevant motion until after the trial
must be counted against the STA clock); United States v. Gambino, _____________ _______
59 F.3d 353, 357-59 (2d Cir. 1995) (ruling that the STA clock is
"not tolled when the postponement of a pretrial motion until
after trial does not effect a trial court's ability to proceed"),
cert. denied, 116 S. Ct. 1671 (1996). But see United States v. ____________ _______ ______________
Riley, 991 F.2d 120, 123 (4th Cir. 1993) (ruling that when a _____
hearing on a pretrial motion is deferred until after trial, all
of the time from the filing of the motion until its disposition
is excluded).
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limine are "pretrial motions" for the purposes of section
3161(h)(1)(F), implying that the filing of such a motion tolls
the STA clock. See id.; see also United States v. Santoyo, 890 ___ ___ ________ ______________ _______
F.2d 726, 728 (5th Cir. 1989); United States v. Johnson, 32 F.3d _____________ _______
304, 306 (7th Cir. 1994). The motion was not heard until January
31, 1995, well after the start of trial. Between the filing of
the motion and the trial date, the court made no mention of the
motion in limine. Specifically, it did not, at any time, state
that it considered the motion "dormant."
Defendant-appellant contends that the district court
implicitly relegated the motion to dormant status when it
postponed the trial indefinitely. He argues that "[u]pon the
issuance by the Court on November 30 of the Notice cancelling the
December 12 trial date without the setting of a new trial date,
and because of that Notice, it was then apparent that the Court's
other business and or convenience had put the Sposito case on
hold." Appellant's Brief at 25. Appellant then appeals to Rojo- _____
Alvarez for the proposition that time during which motions lie _______
dormant is to be counted against the STA clock.
We disagree with appellant's claim. In our view, the
motion was never relegated to dormant status for STA purposes.
The order postponing the trial read, in its entirety, "[t]he
trial scheduled to begin December 12, 1994 has been canceled. It
will be rescheduled for a future date to be advised." District
Court Order of Cancellation, November 30, 1994. No reason was
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given for the postponement and there was no suggestion that the
motion in limine had been reserved until trial.3
To find that the motion was dormant, therefore, we
would have to rely on speculative inferences about the statements
and actions of the lower court. We decline to do so. We are
unwilling to adopt the position that appellate courts should sit
in review of the day-to-day operation of district courts in order
to determine when a district court's decision to put off
consideration of a motion makes that motion "dormant" and when it
does not. District courts are busy and must constantly make
scheduling decisions with respect to the many matters for which
they are responsible. We are ill equipped to second guess these
decisions. There is no reliable way for an appellate court to
divine the intent of the district court with respect to a
particular motion or its docket in general. Rather than open the
door to appeals that ask this court to read the tea leaves of a
trial's scheduling orders, we will only look to the explicit
statements of the lower court.
Our ruling today is also based on our interpretation of
the STA and Henderson. On the one hand, neither of these sources _________
suggests that dormant motions fail to trigger excludable time
____________________
3 Appellant also points to the district court's remarks, made on
the first day of trial, in which the court referred to the motion
in limine, stating, "I have been planning to have a hearing on
that in connection with the trial . . . . I think holding the
motion to resolve once I have found that there was not going to
be a plea, and apparently there won't be, is consistent with
[Henderson]." However one may interpret these remarks, they do _________
not amount to an explicit relegation of the motion in limine to
dormant status.
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under subsection (F). On the other hand, we recognize that there
may be sound policy reasons for an exception to subsection (F) in
the case of dormant motions. Because the statute does not itself
create such an exception, however, and because Henderson held _________
that even unreasonable delays shall be excluded, any exception
for dormant motions should at the very least be drawn narrowly.
We do not believe that an exception for motions deemed, by an ______
appellate court, to have been dormant, without any explicit
indication to that effect by the district court, would be
consistent with the strong language of the STA and Henderson. _________
Furthermore, from the point of view of an appellate
court, there does not appear to be a principled distinction
between a motion that is dormant and one for which the period of
delay prior to hearing is unreasonable. In other words, finding
a motion to have been dormant without any language to that effect
in the record will often be similar to concluding that there has
been unreasonable delay. Henderson has established that all _________
delay, even if unreasonable, is excluded. To count time against
the STA clock on the ground that the motion was implicitly
relegated to dormant status, therefore, would be contrary to the
spirit of Henderson. _________
We hasten to add that this opinion should not be taken
either to criticize or to support the language in Rojo-Alvarez ____________
concerning dormant motions. See Rojo-Alvarez, 944 F.2d at 966. ___ ____________
Our holding only extends to the question of whether or not the
district court reserved ruling on the motion or otherwise
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relegated the motion to dormant status. We do not comment in any
way on the implications, for Speedy Trial Act purposes, of an
explicit ruling that a motion is dormant or that the court will
reserve ruling on the motion.
As a result of our ruling, the 43 days from December 1
to January 13 are not counted for STA purposes. In light of the
fact that appellant claims only 41 days were counted against the
STA clock prior to December 1994, our finding implies that we
must affirm the district court's ruling on the STA issue. ______
II. The Admission of Evidence Claim II. The Admission of Evidence Claim _______________________________
Defendant-appellant next alleges that the district
court erred in admitting into evidence the prior testimony of
Louis Padova. Padova had testified in October 1992, under a
compulsion and immunity order, at the trial of Arthur Marder, who
was accused of illegal gambling. At Marder's trial, Padova
testified that Marder had told him that he was paying everyone --
the implication being that Marder paid off local Revere
politicians in order to protect his illegal video poker business.
It was alleged that these payments were made via Sposito.
At Sposito's trial, Padova refused to testify, even
with immunity, and was found in contempt. The government moved
to admit Padova's testimony from the prior Marder trial. The
district court found Padova to be unavailable within the meaning
of Federal Rule of Evidence 804(a)(2) and found the previous
testimony to be admissible under Federal Rule of Evidence
804(b)(5). Appellant contests the Rule 804(b)(5) ruling.
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The proper interpretation of the Federal Rules of
Evidence is a question of law and is reviewed de novo, see Texaco _______ ___ ______
Puerto Rico v. Department of Consumer Affairs, 60 F.3d 867, 874- ____________ ______________________________
75 (1st Cir. 1995); Hathaway v. Coughlin, 99 F.3d 550, 555 (2d ________ ________
Cir. 1996); United States v. Medina-Estrada, 81 F.3d 981, 986 _____________ ______________
(10th Cir. 1996), but the application of Rule 804(b)(5) is
reviewed under an abuse-of-discretion standard. See Cook v. ___ ____
United States, 904 F.2d 107, 111 (1st Cir. 1990). _____________
In ruling on the question, the district court found
"that the testimony relates to a material fact whether Arthur
Marder was indeed paying off politicians to obtain protection for
his video poker machine business in Revere. If that fact is
proven, it increases the likelihood that he was paying off those
politicians through Mr. Sposito." 2/7 Tr. 15. The court also
found that "the testimony of Padova is more probative on the
point of what Arthur Marder said to Padova than any other
testimony the Government can procure." 2/7 Tr. 16.
Rule 804(b)(5) requires that:
(A) the statement is offered as evidence
of a material fact;
(B) the statement is more probative on
the point for which it is offered than
any other evidence which the proponent
can procure through reasonable efforts;
and
(C) the general purposes of these rules
and the interests of justice will best be
served by admission of the statement into
evidence.
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Fed. R. Evid. 804(b)(5)(A), (B), (C).4 Reading the first two
subparagraphs together, defendant argues, requires that (B) be
read as if it included the words "of material fact" after the
word "point." Thus, the defendant alleges that the district
court erred by not directing its inquiry to the "question of
whether Marder's statement to Padova was more probative on the
issue of whether Marder was paying off politicians than any other
available testimony." Appellant's Brief at 35.
Before proceeding, we note that defendant's argument
rests on the assumption that the question of what Marder said to
Padova is not a material fact. If it is a material fact,
Padova's testimony would be admissible, even under defendant's
preferred interpretation of the rule. To conclude, as defendant
does, that the question of whether Marder was paying politicians
is material fact and yet the fact that he stated as much to
Padova is not a material fact is an exceedingly fine distinction,
and not one upon which the question of admissibility should turn.
The relationship between subparagraphs (A) and (B) of
Rule 804(b)(5) appears to be a matter of first impression within
the circuit. We begin, as always, with an examination of the
plain language of the rule. Subsection (B) requires only that
the statement be more probative on "the point for which it is
offered." The subparagraph does not include the words "of
material fact" as advocated by defendant. The drafters of Rule
____________________
4 In addition to these requirements, the statement must also
have "equivalent guarantees of trustworthiness." Fed. R. Evid.
804(b)(5).
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804(b)(5) separated the "material fact" element of the test found
in subparagraph (A) from the "more probative" element of
subparagraph (B). Were the rule intended to have the meaning
advocated by defendant, it could have been written with much
greater clarity. Had the drafters wanted to include the words
"of material fact" following the word "point" in subparagraph (B)
they obviously could have done so. Furthermore, by doing so,
they would have eliminated the need for subparagraph (A) because
the necessity of a material fact would be explicit in the revised
subparagraph (B). As written, however, the plain language of the
rule does not require that the issue on which the statement is
most probative be a material fact; it requires only that it be
probative on the point "for which it is offered." Fed. R. Evid.
804(b)(5)(B).
Furthermore, subparagraph (A) requires only that the
statement be offered as evidence of a material fact. It need not ________
itself be a material fact. If we were to import language from
subparagraph (A) to subparagraph (B), it would be more natural to
add the words "of evidence" after the word "point," such that (B)
read, "the statement is more probative on the point of evidence ___________
for which it is offered than any other evidence." Under this
interpretation, appellant's claim would fail. The district court
established that the statement was offered as evidence of the
fact that Marder was paying off politicians and that the latter
was a point of material fact. The statement is more probative on
that point of evidence -- what Marder told Padova -- than any
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other evidence that the government could procure through
reasonable efforts.
Defendant, perhaps recognizing that the language of the
rule is not favorable to his argument, turns to legislative
history. He points to language in the Senate Report to the
effect that the residual hearsay exception should be used rarely.
S. Rep. No. 1277, 93d Cong., 2nd Sess. (1974). Our own
examination of the legislative history, however, reveals that the
inclusion of the residual hearsay exception was intended for
cases, such as the one before us, that "have guarantees of
trustworthiness equivalent to or exceeding the guarantees
reflected by the [other Rule 804(b)] exceptions, and to have a
high degree of prolativeness [sic]." Id. ___
In order to illustrate the type of evidence that the
Senate Committee felt should be admitted but that may not fall
within one of the other hearsay exceptions, the Senate Report
cited Dallas County v. Commercial Union Assurance Company, 286 ______________ ___________________________________
F.2d 388 (5th Cir. 1961). S. Rep. No. 1277. At issue in that
case was the cause of the collapse of the Dallas County Courtroom
clock tower. Insurance investigators believed that it collapsed
due to structural defects. Dallas County believed that the tower
collapsed as a result of being struck by a bolt of lightning. In
support of its position, the County introduced into evidence,
among other things, charcoal and charred timbers found in the
tower debris. Id. at 390. In order to rebut this evidence, the ___
insurers sought to introduce a newspaper article from 1901
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describing a fire that had occurred in the courtroom in that
year. The court admitted the evidence despite the fact that it
was not characterized "as a 'business record', nor as an 'ancient
document', nor as any other readily identifiable and happily
tagged species of hearsay exception." Id. at 398. ___
The Senate Report stated that "[b]ecause exceptional
cases like the Dallas County case may arise in the future, the _____________
committee has decided to reinstate a residual exception for rules
803 and 804(b)." S. Rep. No. 1277.
Under defendant's construction of the residual hearsay
exception, however, the newspaper article in Dallas County would _____________
not be admissible. The newspaper article was introduced as
evidence of the material fact that the charred timbers were the
result of a fire that took place more than fifty years prior to
the case. The newspaper story did not, however, go directly to
the question of why the charred timbers were in the tower, it
only went to the fact that there had been a fire in 1901. The
story was not more probative on the point of why the timbers were
charred than any other evidence. It was, however, more probative
than any other evidence that the insurers could provide on the
question of whether there had been a fire.
Just as in the case at bar, therefore, a requirement
that the statement be more probative on the point of material
fact than other available evidence would exclude the evidence in
question. This is certainly not what the Senate Committee, which
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used the Dallas County case as an example of evidence that was _____________
correctly admitted, intended.
Finally, we turn to the policies served by the residual
hearsay exception. These can be summarized as follows:
1. To provide sufficient flexibility to
permit the courts to deal with new and
unanticipated situations.
2. To preserve the integrity of the
specifically enumerated exceptions.
3. To facilitate the basic purpose of
the Federal Rules of Evidence: truth
ascertainment and fair adjudication of
controversies.
11 Moore's Federal Practice 803(24)[7] (2d ed. 1994 & Supp.
1996-97). It is our view that these objectives are best served
by rejecting defendant's proposed construction of 804(b)(5). The
defendant's proposed interpretation would needlessly reduce the
flexibility available to courts dealing with new and
unanticipated situations. By excluding evidence that has, as
required by 804(b)(5), "equivalent circumstantial guarantees of
trustworthiness," defendant's proposed interpretation would also
make truth ascertainment and the fair adjudication of justice
unnecessarily difficult.
For the above reasons, we decline to adopt the
defendant's reading of subparagraphs (A) and (B), and we conclude
that the district court did not err, as a matter of law, in its
interpretation of Rule 804(b)(5)(B).
We examine the district court's application of the
rule. Defendant-appellant claims that the admission of Padova's
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testimony was erroneous because the district court failed to
analyze each part of the testimony in order to determine each
part's reliability. In support of his claim, defendant cites
Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431 __________ ______________
(1994), in which the Supreme Court ruled that, for the purposes
of Rule 804(b)(3), which governs statements against interest, the
word "statement" refers to a single remark. "The district court
may not just assume for purposes of Rule 804(b)(3) that a
statement is self-inculpatory because it is part of a fuller
confession." Williamson, 512 U.S. at __, 114 S. Ct. at 2435. __________
Defendant would have us apply the same definition of "statement"
to Rule 804(b)(5) and, under such a definition, he argues that
the district court failed to analyze each part of the testimony.
We note initially that defendant failed to raise this
issue at trial. Arguments raised for the first time on appeal
are forfeited and reversible only upon a demonstration of "plain
error." United States v. Sullivan, 98 F.3d 686, 687 (1st Cir. _____________ ________
1996). "Under this standard, an appellant bears the burden of
establishing: (1) 'error,' i.e., a '[d]eviation from a legal ____
rule'; (2) that the error is 'plain' or 'obvious'; and (3) that
the plain error affected 'substantial rights.'" United States v. _____________
Winter, 70 F.3d 655 (1st Cir. 1995) (quoting United States v. ______ _____________
Olano, 507 U.S. 725, 732 (1993)), cert. denied, 116 S. Ct. 1366 _____ ____________
(1996); Fed. R. Crim. Proc. 52(b).
This circuit has not yet determined whether the
definition of "statement" adopted for Rule 804(b)(3) in
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Williamson also applies to Rule 804(b)(5).5 We need not make __________
this determination in the instant case, because defendant's claim
fails regardless. If Williamson's definition of "statement" does __________
not apply, defendant's claim is without merit because we find no
plain error in the district court's review of the testimony as a
whole -- viewing it as a single statement -- and its
determination that the requirements of Rule 804(b)(5) were
satisfied. The district court concluded that the testimony
included adequate guarantees of trustworthiness because it was
given under oath, because Padova was immunized, because he
testified upon personal knowledge, and because he was vigorously
cross-examined by defense counsel in the Marder trial.6 These
indicia of reliability are sufficient to establish that the
district court's conclusion that the testimony was reliable was
not plain error. The district court also found subparagraphs (A)
through (C) satisfied, and we find no plain error in its
analysis.7
____________________
5 But see United States v. Canan, 48 F.3d 954, 960 (6th Cir. _______ ______________ _____
1995) ("[T]he term 'statement' must mean 'a single declaration or
remark' for purposes of all of the hearsay rules."), cert. _____
denied, 116 S. Ct. 716 (1996). ______
6 Defendant accurately points out that testifying under immunity
is not always considered an indicator of truthfulness. See, ___
e.g., United States v. Zanino, 895 F.2d 1, 7 (1st Cir. 1990). It ____ _____________ ______
is not for us, however, to conduct a plenary review of the
district court's determination regarding the reliability of the
testimony or to review every factor considered by the district
court. The fact that the trial judge felt immunity bolstered the
credibility of the testimony does not amount to plain error.
7 Appellant alleges that the district court examined only a
small part of Padova's testimony and improperly admitted the
remainder of the testimony. We find no support for this claim in
-17-
If Williamson applies, our analysis becomes more __________
complicated. The district court does not appear to have engaged
in a sentence-by-sentence analysis of the testimony, as would be
required by Williamson. The indicators of reliability that the __________
district court used, however, are not specific to any portion of
the testimony and would apply to every statement therein,
implying that there is no error with respect to the reliability
of the testimony. Specifically, the district court stated that
"Mr. Padova testified at the Marder trial under oath, he was
immunized and, therefore, had an incentive to tell the truth in
order to avoid prosecution for perjury. He testified based upon
personal knowledge." The judge also noted that "he was
vigorously cross-examined by Mr. Duggan, the defense counsel."
Tr. 2/7 14-15.
Had the trial court conducted a sentence-by-sentence
analysis, therefore, it would have applied these same criteria to
every sentence and would have concluded that each one had
sufficient indicators of reliability. There was, therefore, no
plain error in the assessment of the reliability of the
testimony.
With respect to subparagraphs (A)-(C) of Rule
804(b)(5), however, not every sentence of the testimony is
admissible. For example, not every sentence in that testimony
____________________
the record. The transcripts of the proceedings indicate that the
district court considered the testimony as a whole in order to
determine whether the requirements of Rule 804(b)(5) were met.
Tr. 2/7 13-16.
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can be said to have been offered as evidence of a material fact.
For this reason, assuming, arguendo, that Williamson applies, the ________ __________
district court's ruling was erroneous. The error was not,
however, "plain," as required by Winter. In order to be ______
considered plain, the error must be "so 'plain' that the trial
judge and prosecutor were derelict in countenancing it, even
absent the defendant's timely assistance in detecting it."
United States v. Frady, 456 U.S. 152, 163 (1982). The error in _____________ _____
this case was not sufficiently clear as to rise to the level of a
plain error. The error, if it existed at all, turns on the
interpretation and application of Williamson to a case dealing __________
with a hearsay exception that was not implicated in Williamson. __________
No cases are on point in this circuit, and the issue was not
raised at trial.
Furthermore, even if we concluded that there was plain
error, the defendant still must show that the error affected
"substantial rights." In order to affect substantial rights, the
error "must have affected the outcome of the district court
proceedings." Olano, 507 U.S. at 734. The analysis is the same _____
as a "harmless error" analysis, except that "[i]t is the
defendant rather than the Government who bears the burden of
persuasion with respect to prejudice." Id. Defendant in the ___
instant case has failed to demonstrate that the error affected
the outcome of the proceedings. Indeed, defendant-appellant's
brief pursues only a harmful error argument and concludes that
"Padova's testimony . . . very well could have tipped the ___________
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scales." Appellant's Brief at 44 (emphasis added). Even if we
were to agree with this assertion, it is not enough, under the
plain error standard, that the error could have changed the ___________
outcome. We can find plain error only if the error must have __________
done so.
Finally, we address defendant's claim that Sposito's
counsel would have undertaken a more vigorous and extensive
cross-examination of Padova than did Marder's counsel. We do not
dispute that it would have been better to have Padova testify and
be subject to cross-examination. Given that he was not
available, a fact defendant does not dispute, the question is
whether his previous testimony should have been admitted. This
matter goes to the question of whether there were sufficient
guarantees of trustworthiness. As we have already discussed,
defendant has failed to persuade this court that the district
court's conclusion that such guarantees existed was plain error.
III. Conclusion III. Conclusion
For the foregoing reasons, we affirm the district affirm ______
court's rulings on the STA claim and the evidence claim.
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Document Info
Docket Number： 95-1755
Filed Date： 2/21/1997
Precedential Status： Precedential
Modified Date： 9/21/2015