United States v. Reilly

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
7-27-1994
United States of America v. Reilly
Precedential or Non-Precedential:
Docket 93-7671
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 93-7671, 93-7672, 93-7673, 93-7684,
93-7685, 93-7686, 93-7694
UNITED STATES OF AMERICA,
v.
WILLIAM P. REILLY,
Appellant
UNITED STATES OF AMERICA,
v.
JOHN PATRICK DOWD,
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D.C. Crim. Nos. 92-00053-1, 93-00008,
93-00010, 92-00053-2)
Argued May 2, 1994
BEFORE: GREENBERG and GARTH, Circuit Judges,
and ROBRENO, District Judge*
(Filed: July 28, 1994)
1
* Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
2
Lois J. Schiffer
Acting Assistant Attorney
General
Howard P. Stewart
Christina E. Steck
David C. Shilton (argued)
J. Carol Williams
United States Department of
Justice
P.O. Box 23795
L'Enfant Plaza Station
Washington, DC 20026
Attorneys for appellee
Marc B. Tucker (argued)
Randolph K. Herndon
Daniel V. Folt
Andre G. Bouchard
Skadden, Arps, Slate, Meagher &
Flom
One Rodney Square
P.O. Box 636
Wilmington, DE 19899
Attorneys for appellant
William P. Reilly
Andrew L. Frey (argued)
Lawrence S. Robbins
John J. Sullivan
Dorrann E. Banks
Mayer, Brown & Platt
2000 Pennsylvania Ave., N.W.
Washington, DC 20006
Attorneys for appellant
John Patrick Dowd
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL HISTORY
3
A. Factual History
This is an appeal from judgments of conviction and
sentence entered following a jury trial in the United States
District Court for the District of Delaware.0 The appellants are
John Patrick Dowd, who was convicted of knowingly making a false
declaration under oath, 18 U.S.C. § 1623(a), and William P.
Reilly, who was convicted of knowingly making false declarations
under oath, 18 U.S.C. § 1623(a), and of transporting incinerator
ash from the United States for the purpose of dumping it into the
ocean, 33 U.S.C. § 1411(a). The charges against Dowd and Reilly
arose from three sources: a Delaware indictment alleging that
they knowingly made false material declarations before a grand
jury; a Delaware information charging Reilly with the dumping
violation; and a Pennsylvania indictment alleging that Reilly
knowingly made false material declarations before a district
court during a contempt hearing. The Pennsylvania indictment was
transferred to the District of Delaware for consolidation and
trial. The district court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Dowd and Reilly were respectively the president and
vice president of Coastal Carriers Corporation, which was based
in Annapolis, Maryland. Coastal Carriers acted as an agent for
the Amalgamated Shipping Corporation, a Bahamas corporation whose
0
We refer to the appendices as follows: (1) Dowd's appendix is
D. app.; (2) Reilly's appendix is R. app.; (3) the government's
appendix is U.S. app. We refer to the briefs in a similar way.
4
president and vice-president, respectively, were Robert Cordes
and Henry Dowd, John Patrick Dowd's father. Cordes was also
president of several other corporations including MASCO, Lily
Navigation, and Romo Shipping Corporation. In early 1986, John
Patrick Dowd and Reilly entered into negotiations with Joseph
Paolino & Sons, Inc., a contractor with the City of Philadelphia,
leading to Paolino and Amalgamated signing a contract on June 23,
1986, in which Amalgamated agreed to transport and dispose of
incinerator ash residue produced by the city.
Subsequently, Amalgamated entered into a two-year time
charter with Lily Navigation for one of Lily's ships, the Khian
Sea. In August 1986, Paolino loaded approximately 13,500 tons of
incinerator ash into the holds of the Khian Sea, while the ship
was docked at Girard Point in Philadelphia. See U.S. app. at
249-251. Later that month, the Khian Sea left Philadelphia for
the Bahamas where Amalgamated intended to dispose of the ash.
However, before the Khian Sea reached the Bahamas, that country
denied Amalgamated permission to dispose of the ash. Apparently,
the Khian Sea then sailed around the Caribbean for more than a
year while a disposal site was sought.
In November 1987, Amalgamated had not yet found a site
for the ash, and the ship was anchored in Puerto Cortes,
Honduras. At that point, the captain of the Khian Sea left the
ship, and Reilly hired Arturo Fuentes, a captain who lived in
Puerto Cortes, to replace him. Reilly directed Fuentes to take
the ship to Haiti, where the ash would be off-loaded. After the
Khian Sea arrived in Haiti, its crew began off-loading the ash
5
but the Haitian military authorities interrupted the operation
and required the ship to leave. At that time, more than half of
the original ash remained on the ship.
Fuentes testified that Reilly then instructed him to
take the ship to Ocean Cay in the Bahamas to pick up a small
bulldozer called a "bobcat." See R. app. at 663-64. After
picking up the bulldozer, the Khian Sea went to Ft. Pierce,
Florida, where Reilly boarded the ship, and according to Fuentes,
promised the ship's officers and crew additional compensation to
begin dumping the ash into the ocean while en route to West
Africa. Id. at 673-74. The Khian Sea left Ft. Pierce but before
it began the dumping, "AMALGAMATED ANNAPOLIS" sent Fuentes a
radiotelegram instructing him to "SUSPEND OPERATIONS" and proceed
to Philadelphia. Id. at 679-80, 1189. Fuentes received another
radiotelegram on February 27, 1988, signed "AMALGAMATED"
instructing him to "CALL 301 544 2909 AT 1900 TODAY." Id. at
1192. The phone number was Reilly's home phone number, which
Fuentes frequently called to contact Reilly. Id. at 686.
The Khian Sea entered Delaware Bay on March 1, 1988,
and anchored at Big Stone Beach. See D. app. at 71. While the
ship was anchored there, Paolino and Coastal Carriers engaged in
negotiations regarding the disposal of the ash. However, they
could not reach an agreement on the price for disposal. See U.S.
app. at 3-4. During this period, Reilly boarded the Khian Sea
several times, and according to Fuentes, he and Reilly discussed
the execution of the dumping plan they had developed in Ft.
Pierce. Subsequently, Reilly directed Fuentes to leave for the
6
Atlantic, and the Khian Sea left the Delaware Bay on May 22,
1988, against the orders of the Coast Guard. See D. app. at 278;
R. app. at 699-700, 854; U.S. app. at 5, 239-40.
A few days after the Khian Sea left the Delaware Bay,
its crew began dumping the ash into the Atlantic Ocean. This
dumping continued for about two weeks, but stopped when "all the
equipment broke down." See R. app. at 855. During the two-week
period of dumping, Fuentes and Reilly communicated frequently.
See D. app. at 281-92. Subsequently, in July 1988, the Khian
Sea docked in Bijela, Yugoslavia, for repairs. See R. app. at
856.0
Reilly wrote to the American Bureau of Shipping to
request that the ship be reclassified inasmuch as it had lost its
classification after leaving the Delaware Bay without
permission.0 However, on August 17, 1988, the Bureau sent a
letter to Reilly informing him that its surveyor could not
examine the holds because "the vessel remains about half loaded
with cargo," see U.S. app. at 259, and thus, the ship only was
authorized to sail directly to Manila for completion of the
reclassification surveys, id. at 63.
0
While the ship was in Yugoslavia, Lily "sold" the ship and its
cargo to Romo Shipping for $10, and the ship was renamed the
Felicia. However, Lily and Romo had the same post office box in
Freeport, Bahamas, and, as noted above, both were headed by
Robert Cordes. See R. app. at 1167. Moreover, Coastal Carriers
continued to act as the agent for the ship. Throughout our
opinion, we will refer to the ship as the Khian Sea.
0
Before a ship can accept commercial cargoes, it must obtain a
"classification" certifying that it is seaworthy and able safely
to carry certain cargoes. The ship must be "reclassified"
periodically. See U.S. app. at 34-35.
7
Reilly met with Fuentes in Yugoslavia, and told him
that: (1) Kimon Berbillis, a representative of Romo Shipping,
would give him instructions regarding the remainder of the trip;
(2) if no country agreed to accept the remaining ash, it would be
dumped in the ocean; and (3) they would refer to the ash as
"ballast." See D. app. at 299, 304-05. The ship left Yugoslavia
and transited the Suez Canal in September 1988. Id. at 300-01.
Subsequently, Fuentes received a radiotelegram from Berbillis,
stating that Fuentes should arrive in Colombo, Sri Lanka, with
only "500 TONS" of ballast, and that Reilly would cable him
information he had requested. See R. app. at 1214. The next
day, Fuentes received confirmation from Annapolis that the ship
should arrive in Colombo with only 500 tons on board. Id. at
1215. In accordance with these instructions, Fuentes dumped all
but 500 tons of the remaining ash into the Indian Ocean. Id. at
719-20.
On October 9, 1988, Fuentes received a radiotelegram
directing him to proceed to Singapore, instead of to Colombo, see
id. at 1216, and on October 15, he received a radiotelegram
directing him to dump the remaining 500 tons of ash, id. at 1218.
Prior to the ship's arrival in Singapore, Reilly telefaxed a
letter to the American Bureau of Shipping, stating that the Khian
Sea would arrive in Singapore "for the completion of class work."
See U.S. app. at 261. When the ship arrived in Singapore in
November 1988, its cargo holds were empty. According to Fuentes,
Dowd boarded the ship in Singapore, removed gear that had been
used in the dumping operation, see R. app. at 729-30, and told
8
Fuentes to replace the ship's logbook with a falsified logbook,
see D. app. 322-25, and to tell any inquiring journalists that
the ash had been dumped in a country which could not be revealed,
id. at 320. The Khian Sea then proceeded to Shanghai, where it
was reclassified. See U.S. app. at 64. Fuentes left the ship at
this point, taking copies of radiotelegrams and communication
logs with him. See R. app. at 665, 739.
B. Procedural History
Paolino filed suit against Coastal Carriers,
Amalgamated, and others, and on June 2, 1988, the United States
District Court for the Eastern District of Pennsylvania issued a
preliminary injunction, enjoining the defendants, their officers,
and their agents from off-loading or disposing of the ash without
first providing Paolino with at least three days written notice
of the proposed place, manner, and method of disposal. The
district court held a contempt hearing on December 15, 1988, to
determine if the defendants had violated the preliminary
injunction. At the hearing, Reilly was asked, under oath,
whether he had "any knowledge . . . as to what happened to the
incinerator residue" on board the Khian Sea, or "any knowledge as
to the means by which it might be ascertained what happened to
the residue." See U.S. app. at 275. Reilly responded "[n]o,
sir" to both questions. Id.In January 1990, Reilly appeared before a federal grand
jury for the District of Delaware that was investigating
potential ocean dumping violations in connection with the
9
activities of the Khian Sea between September 1986 and December
1988. Id. at 285-403. Reilly was informed that the grand jury
was investigating the disposal of ash from the Khian Sea and was
advised of his right to leave and seek legal counsel. He then
testified that he had no knowledge of what happened to the ash
and had not directed anyone to remove the ash from the ship. Id.
at 376-81.
Dowd appeared before the same grand jury on February
14, 1990. See U.S. app. at 405-95. Like Reilly, he was informed
of the scope of the grand jury's investigation and his rights.
Dowd then testified that he did not have "any idea" what happened
to the ash on board the Khian Sea. See D. app. at 212-13.
On June 14, 1992, an indictment was returned in the
District of Delaware charging Dowd and Reilly with violating 18
U.S.C. § 1623(a) by knowingly making false declarations before
the federal grand jury. See R. app. at 49-57. Dowd and Reilly
moved to dismiss the indictment, claiming that it did not allege
adequately the essential elements of a section 1623(a) violation.
United States v. Reilly, 811 F. Supp. 177, 179 (D. Del. 1993).
However, the court held that the indictment alleged with
sufficient clarity that Dowd and Reilly knowingly made false
statements before a grand jury, these statements were material to
the grand jury's investigation, and the questions that elicited
these false statements were not too vague or ambiguous to support
convictions under section 1623(a). 811 F. Supp. at 181.
On January 25, 1993, an indictment was returned in the
Eastern District of Pennsylvania charging Reilly with violating
10
18 U.S.C. § 1623(a) by knowingly making false declarations during
the contempt hearing. See R. app. at 62-66. Finally, on January
28, 1993, an information was filed in the District of Delaware,
charging Reilly with violating 33 U.S.C. § 1411(a), by knowingly
transporting and causing to be transported material from the
United States for the purpose of dumping it into ocean waters. R.
app. at 58-61. The two indictments and the information were
consolidated in the District of Delaware. Prior to trial, Dowd
and Reilly unsuccessfully moved to disqualify the prosecutor from
prosecuting the case because he had called them as witnesses
before the Delaware grand jury. United States v. Reilly, Crim.
Nos. 92-53-JJF, 93-8-JJF, 93-10-JJF, Memorandum Opinion at 9 (D.
Del. May 7, 1993). Following a jury trial from May 17 to June 3,
1993, Reilly was convicted of two counts of making false
declarations and one count of dumping, and Dowd was convicted of
one count of making a false declaration.
II. DISCUSSION
A. Were the radiotelegams authenticated properly?
The Khian Sea communicated with locations on shore by
radiotelegram and the district court admitted into evidence 35 of
the radiotelegrams that allegedly had been sent to or received by
the Khian Sea between December 1987 and December 1988. See R.
app. at 1189-94, 1198-1209, 1212-21, 1226-32. The district court
based its evidentiary decision in part on its conclusion that
there was "sufficient circumstantial evidence" to indicate that
11
the radiotelegrams were what the government claimed. See U.S.
app. at 65-67. Reilly challenges this determination in this
appeal. "We review the district court's ruling as to proper
authentication for abuse of discretion." United States v.
McGlory, 968 F.2d 309, 328 (3d Cir.), cert. denied, 113 S.Ct. 415(1992).0
Reilly argues that the district court admitted all of
the 35 radiotelegrams into evidence "on a wholesale basis as Mr.
Reilly's admissions, irrespective of the very substantial
differences among them, irrespective of the fact that most of
them indisputably were sent or received by people other than Mr.
Reilly[,] . . . and irrespective of the fact that the government
did not even attempt to demonstrate, much less succeed in
demonstrating, how each radiotelegram was 'authored' or 'adopted'
by Mr. Reilly." See R. br. at 37-38. Thus, Reilly argues that
the district court either failed to exercise its discretion or
abused its discretion by admitting the radiotelegrams as Reilly's
admissions. Id. at 38. Reilly also argues that the government
should be "estopped" from asserting "that only a few of the
radiotelegrams were sent by Reilly" and that most of the
radiotelegrams "were introduced only to show the circumstances in
which the few radiotelegrams from Mr. Reilly were sent," see R.
0
Neither Reilly nor the government distinguishes between the
evidence before the district court at the time it ruled that the
radiotelegrams satisfied the authenticity requirement and the
evidence introduced later in the trial. Thus, we review all of
the evidence relevant to authenticity.
12
reply br. at 12-13, because it did not make this argument to the
district court, id. at 11.
The government argues that it did not attempt to
authenticate all of the 35 radiotelegrams as Reilly's admissions
and that the district court did not admit the radiotelegrams on
this basis. U.S. br. at 18-19. The government maintains that
although it introduced some of the radiotelegrams to "show that
Reilly knew about and directed the dumping of the ash into the
ocean[,] [o]thers . . . [were not sent or received by Reilly and]
were introduced because they interrelate with the incriminating
radiotelegrams, establishing the factual context and showing
generally that Fuentes was testifying accurately as to the timing
and substance of various events." Id. at 19-20. According to
the government, the district court concluded that all of the 35
radiotelegrams had been authenticated properly based on "the
detailed testimony of Fuentes that the radiotelegrams were
communications between Reilly and him, the subject matter of the
radiotelegrams, their timing and interconnection with each other,
their connection with undisputed evidence of phone calls between
Reilly and Fuentes, and Reilly's own admission that he
communicated with captain Fuentes by cable and phone." Id. at
18.
We conclude that, contrary to Reilly's allegations, the
government did not attempt to authenticate all of the 35
radiotelegrams as Reilly's admissions. See R. app. at 123-29
(Memorandum of the United States in Support of the Admission of
Certain Cables and Other Records of the Khian Sea). Moreover,
13
although the district court focused on the connections between
the radiotelegrams and Reilly when citing the circumstantial
evidence of their authenticity, we do not believe that the
district court admitted all of the 35 radiotelegrams as Reilly's
admissions.0 We base this conclusion on the fact that 18 of the
35 radiotelegrams admitted into evidence were sent from the Khian
0
When ruling that the radiotelegrams satisfied the authenticity
requirement, the district court stated:
At the moment, I'm inclined to allow the
government to use the messages, and I do it .
. . based on my reading of the case law that
talks about the level of proof necessary for
authenticity . . . they don't have to be
perfect in proving it, that your client sent
these telexes or the messages and . . .
[there is] sufficient circumstantial evidence
to . . . [suggest] that they are what the
government purports that they should be; that
is, that they appear to be from the same
location where he was; they appear to include
contents of materials or communications that
he would know the substance of the
communications; and they appear to be in a
pattern of communications that would suggest
that if Fuentes received them and then acted
on them and then responded to them and then
received a response again from Reilly, all of
which suggests that whoever it was who was
sending the messages had knowledge of the
transaction and the matters involved.
And I understand there's a risk that the
sender may have been someone else other than
Reilly. And by admitting them and finding
that the government has reasonably satisfied
[the] authenticity [requirement], I'm not
making a finding that Reilly is absolutely
the person who sent them. I'm making a
finding that there's sufficient indicia of
authenticity to allow them to be admitted
into evidence.
See U.S. app. at 65-66.
14
Sea, not to the Khian Sea, and the fact that certain
radiotelegrams are communications between the Khian Sea and
parties not associated with Reilly, including the Consul of the
Republic of Honduras and the United States Coast Guard. Thus, we
review the evidence of authenticity in this light.
Fed. R. Evid. 901(a) states that "[t]he requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent
claims." "Rule 901(a) treats preliminary questions of
authentication and identification as matters of conditional
relevance according to the standards of Rule 104(b). The
condition of fact which must be fulfilled by every offer of real
proof is whether the evidence is what its proponent claims." 5
Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence
¶901(a)[01] at 901-15 (1993).
Fed. R. Evid. 901(b) provides examples of appropriate
methods of authentication. These examples include "[t]estimony
that a matter is what it is claimed to be," Rule 901(b)(1), and
"[a]ppearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with
circumstances," Rule 901(b)(4). Thus, "[i]t is clear that the
connection between a message (either oral or written) and its
source may be established by circumstantial evidence." United
States v. Addonizio, 451 F.2d 49, 71 (3d Cir. 1971), cert.
denied, 405 U.S. 936, 92 S.Ct. 949 (1972). Moreover, "[a]ny
combination of items of evidence illustrated by Rule 901(b) . . .
15
will suffice so long as Rule 901(a) is satisfied." 5 Weinstein's
Evidence ¶ 901(b)(1)[01] at 901-32. Finally, "[t]he burden of
proof for authentication is slight." Link v. Mercedes-Benz of
North America, Inc., 788 F.2d 918, 927 (3d Cir. 1986) (quoting
McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir.
1985)). We have explained that
'the showing of authenticity is not on a par
with more technical evidentiary rules, such
as hearsay exceptions, governing
admissibility. Rather, there need be only a
prima facie showing, to the court, of
authenticity, not a full argument on
admissibility. Once a prima facie case is
made, the evidence goes to the jury and it is
the jury who will ultimately determine the
authenticity of the evidence, not the court.
The only requirement is that there has been
substantial evidence from which they could
infer that the document was authentic.'
McGlory, 968 F.2d at 328-29 (quoting Link, 788 F.2d at 928(quoting United States v. Goichman, 547 F.2d 778, 784 (3d Cir.
1976))) (emphasis omitted); see also Michael H. Graham, Federal
Practice and Procedure: Evidence § 6821 at 849 (Interim Edition
1992) ("Satisfaction of the requirement of authentication or
identification is a matter to be approached in accordance with
Rule 104(b). Accordingly once the court finds that evidence has
been introduced sufficient to permit a reasonable juror to find
that the matter in question is what its proponent claims, a
sufficient foundation for introduction in evidence has been laid,
Rule 104(b).") (citations omitted).
There are several witnesses whose testimony supports
the authenticity of the 35 radiotelegrams. One of these
witnesses is Humberto Carcamo Arias (Carcamo), the Khian Sea's
16
radio operator. He identified the radiotelegrams based on their
appearance and content. See U.S. app. at 101-17. Carcamo
testified that he transmitted the radiotelegrams sent from the
Khian Sea and transcribed the radiotelegrams received by the
Khian Sea. Moreover, he described the procedures that he used
when sending and receiving the radiotelegrams. According to
Carcamo, he would receive a handwritten message from Fuentes and
then type the message on a SAIT Electronics radiotelegram form
"to send it to Sait, S-a-i-t, Electronics. The original copy for
them, one copy for us, and one copy for the head office." Id. at
102. Carcamo received incoming radiotelegrams from coastal
stations that transmitted the messages to the ship in Morse code.
Upon receiving these messages, Carcamo decoded them, transcribed
them, and delivered them to Fuentes. Id. at 103-04. Finally,
Carcamo stated that he placed his initials "HCA" on the records
of all the outgoing and incoming radiotelegrams he prepared. Id.
at 102-03. Each of the 35 radiotelegrams admitted into evidence
bears his initials, corroborating his testimony.
Fuentes's testimony also supports the authenticity of
the radiotelegrams. Fuentes testified that he sent or received
each of the 35 radiotelegrams admitted into evidence and
corroborated Carcamo's testimony regarding Carcamo's role in the
transmission and receipt of the radiotelegrams. See R. app. at
653-55, 668-69. Fuentes's testimony also indicates that the 12
radiotelegrams admitted into evidence that originated in
Annapolis were from Reilly and that the three radiotelegrams
admitted into evidence that the Khian Sea sent to Annapolis were
17
sent to Reilly. Fuentes testified that he was hired by Reilly,
that he took his directions from Reilly, id. at 649-51, and that
while he was at sea, Reilly was the "only person" he knew in
Annapolis and was his primary contact at Coastal Carriers and
Amalgamated Shipping, id. at 654, 659, 680. Other testimony
links these radiotelegrams with Reilly. Clare Dobbins, a
secretary at Reilly's office in Annapolis, testified that she
witnessed Reilly receive radiotelegrams from the Khian Sea, and
sometimes delivered them to him from the telex machine. See U.S.
app. at 23-24, 28. Finally, Reilly admitted that he was in
contact with Fuentes, and that he communicated with him by phone
and by cable on behalf of Coastal Carriers and Amalgamated. Id.
at 159, 182, 196.
In addition to the testimony authenticating the
radiotelegrams, there are multiple pieces of circumstantial
evidence that support the conclusion that the radiotelegrams are
what the government claims they are, namely radiotelegrams to and
from the Khian Sea, many of which were sent or received by
Reilly. First, Fuentes, the captain of the Khian Sea during the
time period at issue, provided the radiotelegrams to the
government in January 1992, when he came to the United States to
testify before the grand jury regarding the activities of the
Khian Sea. See R. app. at 739. Fuentes testified that although
he received instructions from the "company" to destroy documents
that might prompt an investigation into the whereabouts of the
ash, see id. at 754, he took all of the radiotelegrams with him
when he left the Khian Sea, and then provided them to the
18
government in January 1992, id. at 665, 739.0 Although this
evidence is not "dispositive" on the question of the
radiotelegrams' authenticity, it "is surely probative." See
McQueeney, 779 F.2d at 929 ("the fact that the copies were
produced by the plaintiff in answer to an explicit discovery
request for his Sea Service Records, while not dispositive on the
issue of authentication, is surely probative.").
Second, the appearance of the radiotelegrams also
supports the conclusion that they are authentic. They are typed
on forms bearing the letterhead "SAIT ELECTRONICS" and the label
"RADIOTELEGRAM." Moreover, as we noted above, each of the 35
radiotelegrams admitted into evidence bears Carcamo's initials,
"HCA", in either the location designated for the name of the
party sending the radiotelegram or the location designated for
the party receiving the radiotelegram. "The specificity,
regularity, and official appearance of the documents increase the
likelihood of their being authentic." Id. (citations omitted).
Third, "the contents of the . . . [radiotelegrams] tend
to support their claim to authenticity," id., by linking many of
them to Reilly. Of the 18 radiotelegrams in evidence that were
sent by the Khian Sea, three were sent to Annapolis, and of the
17 radiotelegrams in evidence received by the Khian Sea, 12
originated in Annapolis. See R. app. at 1186-1232. Annapolis,
of course, was the site of the Coastal Carriers office where
Reilly worked. Moreover, the three radiotelegrams in evidence
0
Carcamo also testified that Fuentes took the radiotelegrams with
him when he left the Khian Sea. See U.S. app. at 117.
19
sent to Annapolis from the Khian Sea were sent to Reilly's telex
number at Coastal Carriers. Id. at 1200, 1209, 1232.0
Of the 12 radiotelegrams in evidence that were received
by the Khian Sea and originated in Annapolis, three were signed
"COALCOAST," see id. at 1215, 1216, 1220, one was unsigned, id.
at 1218, five were signed "AMALGAMATED ANNAPOLIS," or
"AMALGAMATED," id. at 1189, 1192, 1193, 1199, 1207, and three
were signed "MASCO," id. at 1203, 1205, 1206. Reilly testified
that "COALCOAST" was the "callback" for Coastal Carriers, the
company at which he was vice president. See U.S. app. at 194.
Moreover, Coastal Carriers represented Amalgamated, and one of
the radiotelegrams signed "AMALGAMATED" contained a message
instructing Fuentes to call "301 544 2909," Reilly's home phone
number, see R. app. at 1192.0 Before the Khian Sea received any
radiotelegrams signed "MASCO," it received a radiotelegram signed
"AMALGAMATED SHIPPING CORPORATION" and stating "PLEASE REPLY
AMALGAMATED CARE OF MASCO FREEPORT BAHAMAS," id. at 1201.
Furthermore, a radiotelegram signed "MASCO" and dated June 18,
1988, stated "DO NOT CALL DAYTIME." Id. at 1205. The primary
numbers that Fuentes called for business purposes were Reilly's.
Finally, the unsigned radiotelegram sent from Annapolis included
the following message "COMFROM [sic] ROMO COASTAL CARRIERS
CORPORATION ANNAPOLIS MARYLAND RCA 205654 OR T/X 7108678557"
containing the Coastal Carriers telex number. Id. at 1218.
0
It is undisputed that the telex number for Coastal Carriers was
7108678557. See R. app. at 1218.
0
It is undisputed that Reilly's home phone number was 301-544-
2909. See U.S. app. at 17.
20
The Khian Sea's logs of outgoing radiotelegrams and
phone calls also support the conclusion that Reilly sent the
radiotelegrams originating in Annapolis, because they are
consistent with Fuentes's testimony that he was reporting to
Reilly and taking directions from him via telephone and telex. In
considering the logs it is, of course, important to recognize
that there are far more radiotelegrams listed than were admitted
into evidence. The log covering December 1987 through February
1988 indicates that ten radiotelegrams were sent from the Khian
Sea to the telex in Reilly's office at Coastal Carriers in
Annapolis. Id. at 1186-88.0 The log covering May 1988 through
July 1988 indicates that the Khian Sea sent four radiotelegrams
to Annapolis, id. at 1195, and that Fuentes made five phone calls
to Reilly's home phone number and four phone calls to Reilly's
office number, id. at 1196-97.0 The log covering September 1988
through October 1988 identifies three phone calls from the Khian
Sea to Reilly's home, and three to Reilly's office. Id. at 1210-
11. Finally, the log covering November 1988 through December
1988 indicates that the Khian Sea sent two radiotelegrams to
Reilly's office and that two phone calls were made to Reilly's
home number and two to his office number. Id. at 1222-24.
Finally, as the government argues, the messages in the
radiotelegrams and their relationship to each other, to Fuentes's
0
As we noted above, it is undisputed that the telex number for
Coastal Carriers was 7108678557. See R. app. at 1218.
0
As we noted above, it is undisputed that Reilly's home phone
number was 301-544-2909. It is also undisputed that the office
phone numbers for Coastal Carriers were 301-268-9797, 301-268-
9798, and 301-268-9799. See U.S. app. at 17, 19-20, 137-138.
21
testimony, and to other evidence indicate that Reilly sent the
radiotelegrams originating in Annapolis and support the district
court's conclusion that all of the radiotelegrams in evidence
satisfied the authenticity requirement. See U.S. br. at 24-31. A
letter or telegram "may be authenticated by its contents with or
without the aid of physical characteristics if the letter is
shown to contain information that persons other than the
purported sender are not likely to possess." Graham, Federal
Practice and Procedure: Evidence § 6825 at 865-68; see also
United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993) ("'a
document or telephone conversation may be shown to have emanated
from a particular person by virtue of its disclosing knowledge of
facts known peculiarly to him.'") (quoting Fed. R. Evid. 901
advisory committee note ex. (4)), cert. denied, 114 S.Ct. 1660(1994); 5 Weinstein's Evidence ¶ 901(b)(4)[01] at 901-60 ("A
letter, for example, can be shown to have emanated from a
particular person or business by the fact that it would be
unlikely for anyone other than the purported writer to be
familiar with its subject matter and content."). "Although we do
not know precisely how many people had the information contained
in the proffered evidence, we suspect, as noted above, that the
number is small. Therefore, the nature of the information in the
documents further supports their authenticity." McQueeney v.
Wilmington Trust Co., 779 F.2d at 930. Moreover, "[w]here
letters [or telegrams] fit into a course of correspondence or a
progressive course of action, proof of the letters' relationship
22
to these events can authenticate any of the letters [or
telegrams]." 5 Weinstein's Evidence ¶ 901(b)(4)[04] at 901-75.
The messages contained in the radiotelegrams, and the
way in which they relate to each other, to Fuentes's
conversations with Reilly, and to the activities of the Khian Sea
link Reilly to the 12 radiotelegrams from Annapolis and one which
Berbillis sent to the Khian Sea from Greece. A persuasive
example of this circumstantial evidence is "the series of
radiotelegrams introduced as Govt. Exhibit 69, and . . . [their
relationship] to the testimony of Captain Fuentes and other
documents." U.S. br. at 24. According to Fuentes, Reilly told
him to take directions from Kimon Berbillis once the Khian Sea
left Yugoslavia, that Abdel Hakim, a vice president of Romo
Shipping, also might send him messages, see R. app. at 714, 723,
and that "ballast" was to be the code word for the incinerator
ash on board the Khian Sea, id. at 719-21. Thus, the record
supports the conclusion that Berbillis and Hakim were acting on
behalf of Reilly or at his behest. Id. at 714-17, 723-24.
Government Exhibit 69A is a radiotelegram that Fuentes sent to
Berbillis on September 29, 1988, stating that the ship had
departed Suez, and that "NO RADIO CONTACT WAS POSSIBLE WITH
HAKIM," and asking Berbillis to "PLEASE SEND INSTRUCT [sic] HOW
MUCH BALLAST SHOULD I ARRIVE WITH." Id. at 1212. Fuentes
testified that Government Exhibit 69B is the second radiotelegram
he sent to Berbillis. In this radiotelegram, Fuentes asks for
instructions on what to do when he arrives in Colombo, Sri Lanka,
and states that he had "NO SUCCESS ON PHONE TO USA." Id. at
23
1213. According to Fuentes, the person he was trying to reach in
the "USA" was Reilly. Id. at 717.
Moreover, Government Exhibit 69C is Berbillis's reply
to Fuentes's request for instructions, and it states, "PLEASE
DELAY YOU ETA UNTIL NOON OCTOBER 14 STOP TRY ARRIVE WITH 500 TONS
IN ONEHOLD STOP REILLY WILL CABLE YOU INFO YOU REQUESTED." Id.
at 1214 (emphasis added).
A common aspect of authentication permissible
under Rule 901(b)(4) is the reply doctrine
which provides that once a letter, telegram,
or telephone call is shown to have been
mailed, sent or made, a letter, telegram or
telephone call shown by its contents to be in
reply is authenticated without more.
Graham, Federal Practice and Procedure: Evidence § 6825 at 868-
69; 5 Weinstein's Evidence ¶ 901(b)(4)[05] at 901-76 ("A letter
can be authenticated by testimony or other proof that it was sent
in reply to a duly authenticated writing. A reply letter often
needs no further authentication because it would be unlikely for
anyone other than the purported writer to know and respond to the
contents of an earlier letter addressed to him."). Accordingly,
inasmuch as Fuentes's testimony authenticates Government Exhibit
69B, and 69C is a reply to 69B, 69C satisfies the authenticity
requirement. Of course, the contents of Government Exhibit 69C
also link the radiotelegram to Reilly, whose name is mentioned
explicitly in the radiotelegram.
Government Exhibit 69C helps authenticate Government
Exhibit 69D. According to Government Exhibit 69C, Reilly was
going to send Fuentes a radiotelegram containing instructions
regarding his arrival in Sri Lanka and how much "ballast" Fuentes
24
should arrive with. One day after receiving this radiotelegram,
Fuentes received Government Exhibit 69D, a radiotelegram from
Annapolis that was signed "COALCOAST" and stated "SUGGEST ARRIVE
COLOMBO PM 14TH WITH ONLY 500 TONS BALLAST ADVISING AGENTS OTHERS
DETAILS LATER CONFIRM ROMO." R. app. at 1215. The log of the
ship's outgoing calls and radiotelegrams indicates that Fuentes
called Reilly's home phone number on October 9, the following
day, id. at 1210, and Fuentes testified that both the
radiotelegram and Reilly's statements on the phone were
instructions to dump all but 500 tons of the remaining ash, id.
at 719-20. The radiotelegram admitted as Government Exhibit 69D
and its relationship (1) to Berbillis's earlier radiotelegram,
(2) to the record of Fuentes's call to Reilly and (3) to
Fuentes's testimony, authenticate Government Exhibit 69D and
indicate that it came from Reilly. It is unlikely that someone
other than Reilly would use the alleged code word "ballast," and
send Fuentes instructions regarding his arrival in Colombo and
how many tons of ballast to arrive with, especially in light of
Berbillis's earlier radiotelegram. See 5 Weinstein's Evidence
¶901(b)(4)[01] at 901-66 ("The use of code words or other names
or nuances of speech particularly known or used by the purported
writer can authenticate a writing.").
Fuentes received a second radiotelegram on October 9
that also was signed "COALCOAST" and instructed him to go to
Singapore instead of to Sri Lanka. See R. app. at 1216. The
circumstances indicate that Reilly also sent this radiotelegram,
Government Exhibit 69E. After receiving this radiotelegram,
25
Fuentes sent a radiotelegram (Government Exhibit 69F) to
Berbillis, informing him that the ship was going to Singapore.
Id. at 1217. Subsequently, on October 15, Fuentes received an
unsigned radiotelegram (Government Exhibit 69G) sent from
Annapolis that stated, "DISPOSE 500 BALLAST PRIOR ARRIVAL
SINGAPORE . . . CONFORM [sic] ROMO, COASTAL CARRIERS CORPORATION
ANNAPOLIS MARYLAND RCA 205654 OR T/X 7108679557." Id. at 1218.
Fuentes testified that he interpreted the message as an
instruction to dump the remaining 500 tons of ash. Id. at 725.
Fuentes's testimony, the reference to the "500 BALLAST" which
appeared earlier in Government Exhibit 69D, the references to
Coastal Carriers and its telex number in Annapolis, and the
context of the radiotelegram more than suffice to authenticate
this radiotelegram and to support the inference that Reilly sent
it. Again, it is unlikely that someone other than Reilly would
use the alleged code word "ballast," be aware of the facts that
the ship had only 500 tons of ash remaining in its holds and that
it was scheduled to arrive in Singapore, and send Fuentes
instructions to dispose of the remaining ash.
On the day that Fuentes received this radiotelegram,
Fuentes sent another radiotelegram to Berbillis (Government
Exhibit 69H) informing him that the ship's arrival in Singapore
would be delayed until November 5, due to "TROUBLES WITH DOZZER
AND GENERATORS ETC ETC PLUS FINAL CLEANING HARDER THAN EXPECTED."
Id. at 1219. Fuentes testified that on the following day, he
spoke with Reilly about the ash dumping process, id. at 726, and
the log of the ship's outgoing calls and radiotelegrams confirms
26
that he called Reilly's home phone number that day, id. at 1210.
Finally, on October 19, a letter bearing the typed signature of
Reilly was faxed from Coastal Carriers to the American Bureau of
Shipping, informing it that the Khian Sea would arrive in
Singapore "for completion of class work commenced in Bijela,
Yugoslavia." See U.S. app. at 261. Reilly knew that the "class
work" could not be completed until the ship's holds were empty.0
Thus, the source, typed signature, and message indicate that
Reilly sent this letter, and support our conclusion that Reilly
sent the radiotelegrams originating in Annapolis, and that,
having authorized Berbillis to communicate with Fuentes on his
behalf, Reilly was informed of the contents of their
correspondence.
Reilly argues that four of the radiotelegrams allegedly
sent from the Khian Sea to Athens, Greece, during the period when
the crew allegedly was dumping ash into the Indian Ocean were not
properly authenticated because, although they bore Carcamo's
initials, "Carcamo himself testified that he 'didn't transmit any
message' during that period because of 'captain's order' not to
do so." See R. br. at 40 n.8 (quoting R. app. at 885-86).
However, Fuentes testified that he only instructed Carcamo not to
communicate with passing ships during the dumping operation, and
that the Khian Sea remained in contact with Annapolis. See R.
0
On August 17, 1988, the American Bureau of Shipping sent a
letter to Reilly informing him that its surveyor could not
conduct the examination required for reclassification of the
Khian Sea because "the vessel remains about half loaded with
cargo," see U.S. app. at 259.
27
app. at 837-38. It is well-established that "upon consideration
of the evidence as a whole, if a sufficient foundation has been
laid in support of introduction, contradictory evidence goes to
the weight to be assigned by the trier of fact and not to
admissibility." Graham, Federal Practice and Procedure: Evidence
§ 6821 at 850 (citation omitted); 5 Weinstein's Evidence
¶901(a)[01] at 901-17 ("The issue of credibility and probative
force is for the jury.").
Thus, we conclude that the evidence was more than
adequate to authenticate the 35 radiotelegrams admitted into
evidence. Moreover, even if the four incoming radiotelegrams
that the evidence does not link to Reilly were not authenticated
properly, see R. app. at 1201 (68D), 1202 (68E), 1226 (70A), 1228
(70C), their admission into evidence was harmless.0 "Trial error
is harmless if it is highly probable that the error did not
affect the judgment." United States v. Copple, 24 F.3d 535, 546
(3d Cir. 1994) (citing United States v. Simon, 995 F.2d 1236,
1244 (3d Cir. 1993)). See also Lippay v. Christos, 996 F.2d
1490, 1500 (3d Cir. 1993). We have held that "[h]igh probability
exists if the court has a 'sure conviction that the error did not
prejudice the defendant.'" Copple, 24 F.3d at 546 (quoting
Simon, 955 F.2d at 1244). As the government argues, "[t]he jury
could reasonably find that the radiotelegrams introduced as GE
69D and 69G (R. app. 1215, 1218) were orders from Reilly to dump
ash into the ocean." See U.S. br. at 27. Consequently, we are
0
These radiotelegrams should not be confused with the four
radiotelegrams the Khian Sea sent to Athens.
28
convinced that the district court's admission of the four
incoming radiotelegrams not linked to Reilly did not prejudice
him, as these radiotelegrams only provided additional context for
the truly incriminating radiotelegrams which the evidence did
link to Reilly.
B. Did the radiotelegrams constitute inadmissible
hearsay?
Fed. R. Evid. 801 defines hearsay as a "statement other
than one made by a declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted." Hearsay is generally inadmissible because
'the statement is inherently untrustworthy:
the declarant may not have been under oath at
the time of the statement, his or her
credibility cannot be evaluated at trial, and
he or she cannot be cross-examined.'
United States v. Console, 13 F.3d at 656 (quoting United States
v. Pelullo, 964 F.2d 193, 203 (3d Cir. 1992)). "We exercise
plenary review over the district court's interpretation of the
Federal Rules of Evidence but review a ruling based on a
permissible interpretation of a rule for abuse of discretion."
Console, 13 F.3d at 656 (citations omitted).
We accept Reilly's contention that the incoming
radiotelegrams to the Khian Sea were the product of three out-of-
court "statements": (1) the sender's statement to a coastal
station operator, (2) the coastal station's transmission of the
message in Morse code to the Khian Sea, and (3) Carcamo's
documenting of the message. See R. br. at 44. Rule 805 provides
that, "[h]earsay included within hearsay is not excluded under
29
the hearsay rule if each part of the combined statements conforms
with an exception to the hearsay rule." See Fed. R. Evid. 805.
However, Reilly argues that each of these "statements"
constitutes inadmissible hearsay and that therefore the district
court abused its discretion by admitting the incoming
radiotelegrams into evidence. See R. br. at 43-48. We disagree.
Our review indicates that each of the three
"statements" reflected in 13 of the 17 incoming radiotelegrams in
evidence, the 12 from Reilly and the one from Berbillis in
Greece, was admissible. The initial statement reflected in the
incoming radiotelegrams, the statement by the sender to a coastal
station operator, consists of several components: (1) the
message; (2) the radiotelegram's point of origin and its
destination; and (3) the date on which the radiotelegram was
handed in to the coastal station operator. None of the messages
contained in the incoming radiotelegrams constitute hearsay
because they consist largely of instructions to Fuentes. See R.
app. at 1189 (Govt. Exh. 67A), 1192 (Govt. Exh. 67D), 1193 (Govt.
Exh. 67E), 1199 (Govt. Exh. 68B), 1201 (Govt. Exh. 68D), 1202
(Govt. Exh. 68E), 1203 (Govt. Exh. 68F), 1205 (Govt. Exh. 68H),
1206 (Govt. Exh. 68I), 1207 (Govt. Exh. 68J), 1214 (Govt. Exh.
69C), 1215 (Govt. Exh. 69D), 1216 (Govt. Exh. 69E), 1218 (Govt.
Exh. 69G), 1220 (Govt. Exh. 69I), 1226 (Govt. Exh. 70A), 1228
(Govt. Exh. 70C). "Instructions to an individual to do something
are . . . not hearsay," Graham, Federal Practice and Procedure:
Evidence § 6705 at 409, because they are not declarations of fact
and therefore are not capable of being true or false, Crawford
30
v. Garnier, 719 F.2d 1317, 1323 (7th Cir. 1983), United States v.
Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert. denied, 459 U.S.
972, 103 S.Ct. 305 (1982), United States v. Keane, 522 F.2d 534,
558 (7th Cir. 1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481(1976).
As the government argues, the messages "were not
offered to prove the truth of the statements contained within
them, but instead to prove the fact that the certain instructions
had been given," see U.S. br. at 32; Anderson v. United States,
417 U.S. 211, 220 n.8, 94 S.Ct. 2253, 2260 n.8 (1974), and as
circumstantial evidence of Reilly's state of mind, namely his
knowledge of the ash dumping operation, 4 Weinstein's Evidence
¶801(c)[01] at 801-103 ("[a] statement offered to show the state
of mind of the declarant is analytically not hearsay if the
declarant does not directly assert the state of mind that is in
issue."). Although one of the incoming messages included
Reilly's phone number, see R. app. at 1192, another included his
name, id. at 1214, and a third included the telex number at
Coastal Carriers, id. at 1218, even these three messages do not
constitute hearsay, because they were offered only as
circumstantial evidence that Reilly sent the radiotelegrams
originating in Annapolis. See McGlory, 968 F.2d at 333
(documents did not constitute hearsay by virtue of the fact that
they contained the defendant's name and the names and phone
numbers of other individuals, as they were "offered merely as
circumstantial evidence of . . . [defendant's] association" with
the other individuals). Thus, the first component of the
31
statements by the sender to a coastal station operator, which we
refer to as the "messages," did not constitute hearsay.
Similarly, the typed signatures on the 12 radiotelegrams
originating in Annapolis did not constitute hearsay as they were
offered only as circumstantial evidence that the radiotelegrams
were sent by Reilly.0
However, the other components of the statements by the
sender to the coastal station operator, namely the point of
origin and destination of each radiotelegram, and the date on
which each radiotelegram was sent, were introduced to prove their
truth, i.e., to prove that the radiotelegrams were sent from the
point of origin to the destination on the designated date. We
consider this information to be statements made by the sender and
then relayed by the coastal station operator because the sender's
verbal and nonverbal conduct in filing a radiotelegram at a
particular coastal station on a particular date for transmission
to a designated location intentionally communicated each of these
facts to the coastal station operator for transmission. In
effect, the sender told the operator these facts so the operator
could tell them to the Khian Sea.0
0
If the typed signatures actually read "Reilly," then they would
have been offered for the truth of the matter asserted. However,
as we discuss below, such radiotelegrams would have been
admissible, nonetheless, as admissions. See Fed. R. Evid.
801(d)(2)(A). The typed signature "Kimon," see R. app. at 1214,
on the radiotelegram that the government claims is from Kimon
Berbillis, is admissible on this basis. See Fed. R. Evid.
801(d)(2)(C).
0
If the government had called a coastal station operator as a
witness, and the operator had testified regarding the receipt and
transmission of the messages and laid the foundation for the
introduction of his or her "statements" pursuant to the business
32
In the 12 radiotelegrams originating in Annapolis,
these "statements" regarding the point of origin and destination
of the radiotelegram, and the date on which the radiotelegram was
sent were admissible pursuant to Federal Rule of Evidence
801(d)(2)(A). Rule 801(d)(2)(A) provides that statements made by
a party to an action and offered into evidence by an opposing
party do not constitute hearsay. As we discussed above, there is
substantial evidence indicating that Reilly sent the 12
radiotelegrams originating in Annapolis.0 Annapolis was the site
of the Coastal Carriers office where Reilly worked, and the
contents of these 12 radiotelegrams, combined with other
circumstantial evidence and Fuentes's testimony indicate that
they were sent by Reilly.
In addition to the circumstantial evidence we have
already discussed, the relationship between Reilly's three sets
of meetings with Fuentes and certain radiotelegrams that Fuentes
records exception to the hearsay rule, we would not need to take
such a complex layered approach to these components of the
radiotelegrams. But inasmuch as the operator or operators did
not testify and the radiotelegrams were not introduced as
business records of the coastal sending station, our complex
layered approach to the hearsay analysis is necessary.
0
The dissent maintains that we "effectively and impermissibly
equate[] our evidentiary rules governing admissibility with the
slight showing required for authentication." See dissent
typescript at 5. It is true that we rely on the evidence linking
Reilly to the 12 radiotelegrams originating in Annapolis and the
radiotelegram from Berbillis both as evidence of the
radiotelegrams's authenticity and as evidence that the statements
contained in the radiotelegrams do not constitute hearsay. We do
so, however, not because we equate the showings for authenticity
and admissibility, but because the substantial quantity of
evidence linking Reilly to these radiotelegrams satisfies not
only the "slight" showing required for authenticity, but also the
greater showing required for admissibility.
33
received subsequent to these meetings indicates that the
radiotelegrams originating in Annapolis were sent by Reilly.0
First, Reilly met with Fuentes in Ft. Pierce, Florida, and
according to Fuentes, promised the ship's officers and crew
members additional compensation to begin dumping the ash while en
route to West Africa. Subsequent to this meeting, Fuentes
received three radiotelegrams from Annapolis, the first
instructing him to "SUSPEND OPERATIONS" and return to
Philadelphia, see R. app. at 1189, the second instructing him to
call "301 544 2909," id. at 1192, Reilly's home phone number, and
0
The dissent contends that our "hearsay analysis is fundamentally
flawed because it is premised on the assumption that the 12
radiotelegrams allegedly sent by Reilly originated in Annapolis,
where Reilly lived and worked. . . . Yet, the Government never
adduced any evidence, apart from the disputed documents
themselves, that the messages contained in the radiotelegrams had
actually originated in Annapolis." See dissent typescript at 7.
First of all, our hearsay analysis is not premised solely on the
evidence that 12 of the radiotelegrams originated in Annapolis.
Evidence that these radiotelegrams originated in Annapolis was
only one of many pieces of evidence linking these 12
radiotelegrams to Reilly. Other pieces of evidence included
Fuentes's testimony, see maj. typescript at 17, the messages and
typed signatures contained in the radiotelegrams, id. at 19-20,
the Khian Sea's logs of outgoing radiotelegrams and phone calls
which corroborate Fuentes's testimony that he was taking
directions from Reilly, id. at 20-21, Reilly's admission that he
communicated with the Khian Sea by radiotelegram, id. at 17,
Clare Dobbins's testimony that she witnessed Reilly receive
radiotelegrams from the Khian Sea, id., and the relationship
between the messages in the radiotelegrams, Fuentes's testimony,
the activities of the Khian Sea, and the timing of Reilly's three
sets of meetings with Fuentes, id. at 21-27, 34-36. Second of
all, the "documents themselves" are not the only evidence
indicating that the radiotelegrams originated in Annapolis. The
relationship between the outgoing radiotelegrams and calls to
Annapolis, and the 12 radiotelegrams indicating that they were
"handed in at Annapolis" also indicates that these radiotelegrams
were, in fact, sent from Annapolis.
34
the third containing instructions regarding the ship's arrival in
Philadelphia, id. at 1193.
Once the ship returned to Philadelphia, Reilly met with
Fuentes again, and according to Fuentes, they discussed the
execution of the dumping plan they had developed. Subsequent to
this meeting, after the ship had left Philadelphia, Fuentes
received a radiotelegram from Annapolis instructing him to
proceed toward Cape Verde, away from the United States until the
"MISSION" was accomplished, id. at 1199, along with other
radiotelegrams containing instructions on how to proceed, id. at
1203, 1205, 1206, 1207. According to Fuentes, the crew began
dumping the ash into the Atlantic Ocean and continued to do so
until problems developed with the machinery they were using, at
which point, Fuentes sent a radiotelegram to Reilly stating that
3500 tons of "CARGO" remained on board, and that the equipment
needed to off-load the ash had broken. Id. at 1209.
Finally, the third place in which Reilly and Fuentes
met was Bijela, Yugoslavia. Fuentes testified that at this
meeting, Reilly told him that: (1) Kimon Berbillis would give him
instructions regarding the remainder of the trip; (2) if no
country agreed to accept the remaining ash, it would be dumped in
the ocean; and (3) they would refer to the ash as "ballast." See
D. app. at 299, 304-05. Following this meeting, Fuentes received
a radiotelegram sent from Greece by Berbillis instructing him to
arrive in Sri Lanka with only 500 tons of ballast (the 13th
incoming radiotelegram with admissible statements), see R. app.
at 1214, a radiotelegram originating in Annapolis confirming
35
these instructions, id. at 1215, another radiotelegram from
Annapolis instructing him to proceed to Singapore instead of Sri
Lanka, id. at 1216, a third radiotelegram from Annapolis
instructing him to dispose of the remaining 500 tons of "BALLAST"
before arriving in Singapore, id. at 1218, and a fourth
radiotelegram with instructions regarding the ship's arrival in
Singapore, id. at 1220. Thus, the relationship between Fuentes's
testimony regarding the substance of his meetings with Reilly and
the content of the messages that Fuentes received following his
meetings with Reilly confirms that the messages originating in
Annapolis were from Reilly.
The radiotelegram originating in Greece bore the typed
signature "KIMON," Berbillis's first name. Id. at 1214.
Fuentes's testimony regarding his contact with Berbillis confirms
that the radiotelegram was from Berbillis, and indicates that
Reilly had authorized Berbillis to make the "statements"
contained in the radiotelegram to Fuentes. In fact, according to
Fuentes, Reilly introduced him to Berbillis and specifically told
him to take instructions from Berbillis once the ship left
Yugoslavia. Id. at 714-17, 723-24.0
"Rule 801(d)(2)(C) specifically excludes from the
definition of hearsay any statements used against a party which
were made by another person authorized by the party to make a
0
The dissent states that "there is no . . . proof to establish
that Berbillis . . . 'was acting on behalf of Reilly or at his
behest.'" See dissent typescript at 13. However, we find
Fuentes's testimony sufficient to establish the relationship
between Reilly and Berbillis.
36
statement concerning the subject." Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1198 (3d Cir. 1993). In light of the
evidence indicating that Reilly authorized Berbillis to send
instructions to Fuentes on his behalf, the statements made by
Berbillis to a coastal station operator, see R. app. at 1214, are
admissible pursuant to Rule 801(d)(2)(C). See Graham, Federal
Practice and Procedure: Evidence §6722 at 503-04 ("Authorization
to make a statement concerning the subject matter may . . . be
established by the acts or conduct of the principal or his
statements to the agent or third party."); see also Michaels v.
Michaels, 767 F.2d 1185, 1201 (7th Cir. 1985) (held that telexes
sent by a third party to potential buyers of defendant's company
were admissible under Rule 801(d)(2)(C) because "[v]iewing the
other evidence in the light most favorable to the plaintiff, . .
. [the defendant] authorized . . . [the third party] to act as
the Company's broker and contact . . . potential buyers."), cert.
denied, 474 U.S. 1057, 106 S.Ct. 797 (1986). Thus, in 13 of the
17 incoming radiotelegrams in evidence, all components of the
statements by the sender to the coastal station operator, namely
the messages, the "statements" regarding the point of origin and
destination of each radiotelegram, and the "statements" regarding
the date on which each radiotelegram was sent, were admissible.
The second set of "statements" reflected in the
incoming radiotelegrams consists of the statements made by the
coastal operators to the Khian Sea. In the 12 radiotelegrams in
evidence sent by Reilly and the radiotelegram in evidence sent by
Berbillis, the statements by the coastal operators to the Khian
37
Sea also were admissible pursuant to Rule 801(d)(2)(C) because
they were "statement[s] by a person [the coastal operators]
authorized by . . . [Reilly, either directly or indirectly
through Berbillis] to make a statement concerning the subject" of
the radiotelegram. Fed. R. Evid. 801(d)(2)(C).
For the same reason, the third "statement" reflected in
the 12 radiotelegrams sent by Reilly and the one from Berbillis,
Carcamo's documenting of the radiotelegrams, does not constitute
hearsay. Id.0 Moreover, Carcamo's documenting of the incoming
radiotelegrams also would be admissible under Rule 803(6), the
exception for records of regularly conducted business. See U.S.
br. at 33. This exception authorizes the admission of:
[a] memoranda, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at
or near the time by, or from information
transmitted by, a person with knowledge, if
kept in the course of a regularly conducted
business activity, and if it was the regular
practice of that business activity to make
the memoranda, report, record, or data
compilation, all as shown by the testimony of
the custodian or other qualified witness,
unless the source of information or the
method or circumstances of preparation
indicate lack of trustworthiness.
0
The dissent contends that there is no proof that Reilly
authorized coastal station operators to transmit the
radiotelegrams or authorized Carcamo to decode and document the
radiotelegrams. See dissent typescript at 13-14. In our
opinion, Fuentes's testimony, Reilly's admission that he
communicated with the Khian Sea by radiotelegram, Clare Dobbins's
testimony that she witnessed Reilly receive radiotelegrams from
the Khian Sea, and the plethora of other circumstantial evidence
linking Reilly to the radiotelegrams more than suffice to
establish that Reilly authorized the coastal station operators
and Carcamo to play their respective roles in the transmission of
the radiotelegrams.
38
Carcamo was a witness "qualified" to lay the foundation required
by Rule 803(6) for the admission of the radiotelegrams because as
the radio operator for the Khian Sea, he was responsible for
creating and storing them, and had "the ability to attest to the
foundational requirements of Rule 803(6)." Console, 13 F.3d at
657.
The foundation requirements to which a
qualified witness must attest are: '(1)
[that] the declarant in the records had
knowledge to make accurate statements; (2)
that the declarant recorded statements
contemporaneously with the actions which were
the subject of the reports; (3) that the
declarant made the record in the regular
course of the business activity; and (4) that
such records were regularly kept by the
business.'
Id. at 657 (quoting United States v. Furst, 886 F.2d 558, 571 (3d
Cir. 1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878 (1990)).
Carcamo testified to the four foundation requirements
of the business records exception by testifying that: he was the
radio operator for the Khian Sea during the relevant period of
time, see R. app. at 863; that he was responsible for contacting
the coastal stations to receive and transmit radiotelegrams for
the ship and for keeping records of all communications to and
from the ship, id. at 863-64; that the coastal stations
transmitted messages to the ship in Morse code, id. at 866-67;
39
that he had years of experience as a radio operator and was
trained in Morse code, id. at 867-68; and that he decoded the
Morse code signals, and documented the messages as soon as he
received them, id., and then delivered the written messages to
Fuentes, id. at 867. Carcamo also kept a file of the incoming
and outgoing messages. Id. at 863, 869. Carcamo's testimony
"satisfied the foundation requirements of Rule 803(6) because it
'demonstrate[d] that the records . . . [of the radiotelegrams]
were made contemporaneously with the act the documents
purport[ed] to record by someone with knowledge of the subject
matter, that they were made in the regular course of business,
and that such records were regularly kept by the business.'"
Console, 13 F.3d at 657 (quoting United States v. Pelullo, 964
F.2d at 201). Moreover, Fuentes's testimony corroborated
Carcamo's testimony regarding his responsibilities for
documenting and storing incoming and outgoing radiotelegrams, and
the procedures employed for transmitting and receiving the
radiotelegrams. See R. app. at 653-55, 668-69.
As we have noted, the 12 radiotelegrams originating in
Annapolis incorporate messages provided originally by Reilly and
the radiotelegram from Berbillis incorporates a message which
Reilly authorized Berbillis to send. Moreover, all 13 of these
radiotelegrams incorporate the Morse code transmissions by
coastal station operators. Under Rule 803(6), any statement
incorporated into a business record must be verified by the party
recording the statement, made by a party under "a duty to
report," or admissible pursuant to another exception to the
40
hearsay rule. See Graham, Federal Practice and Procedure:
Federal Rules of Evidence § 6757, at 641-43; Console, 13 F.3d at
657-58; Fed. R. Evid. 805. As we have indicated, the statements
by Reilly were admissible under Rule 801(d)(2)(A), and the
statements by Berbillis and the coastal station operators were
admissible under Rule 801(d)(2)(C).
Thus, the district court did not err in admitting the
12 incoming radiotelegrams sent by Reilly or the radiotelegram
sent by Berbillis, as each of the three "statements" reflected in
these radiotelegrams was not hearsay or was admissible under an
exception to the hearsay rule. Although the district court may
have erred in admitting the other four incoming radiotelegrams
into evidence, see R. App. at 1201, 1202, 1226, 1228, as we
indicated above, such an error would be harmless.
Moreover, the district court also did not err by
admitting the 18 outgoing radiotelegrams into evidence. The
outgoing radiotelegrams consist of two "statements": (1)
Fuentes's statement to Carcamo, and (2) Carcamo's documenting of
the statement. Fuentes's statements were admissible pursuant to
Rule 801(d)(1) which provides that a statement is not hearsay if
[t]he declarant testifies . . . and is
subject to cross-examination concerning the
statement, and the statement is . . . (B)
consistent with his testimony and is offered
to rebut an express or implied charge against
the declarant of recent fabrication or
improper influence or motive.
As the government points out, the defendants suggested to the
jury that Fuentes had ulterior motives for cooperating with the
government and was fabricating testimony to protect himself. See
41
U.S. app. at 82-90A. Thus, Fuentes's statements in the
radiotelegrams were admissible to rebut these suggestions.
The second "statement" reflected in the outgoing
radiotelegrams, Carcamo's documenting of Fuentes's statements,
was admissible pursuant to Rule 803(6). As we discussed above,
Carcamo testified to the four foundation requirements of Rule
803(6). Specifically with regard to the outgoing radiotelegrams,
Carcamo testified that he typed copies of the handwritten
messages Fuentes asked him to send, and then sent a copy to Sait
Electronics and retained one for the ship's records. See R. app.
at 866. Again, Fuentes's testimony corroborated Caracamo's. Id.
at 653-55.
Thus, neither the 13 incoming radiotelegrams which the
evidence links to Reilly nor the 18 outgoing radiotelegrams
constituted inadmissible hearsay, and the admission of the four
incoming radiotelegrams not linked to Reilly was harmless.
C. Were the questions posed to Reilly too ambiguous to
allow his response to form the basis of a false
declarations conviction?
At the contempt hearing held on December 15, 1988, in
the Eastern District of Pennsylvania, Reilly was asked, under
oath, whether he had "any knowledge . . . as to what happened to
the incinerator residue" on board the Khian Sea, or "any
knowledge as to the means by which it might be ascertained what
happened to the residue." See U.S. app. at 275. Reilly
responded "[n]o, sir" to both questions. Id.42
In January 1990, Reilly voluntarily appeared before a
federal grand jury for the District of Delaware that was
investigating potential ocean dumping violations in connection
with the activities of the Khian Sea between September 1986 and
December 1988. Id. at 285-403. Reilly was informed that the
grand jury was investigating the disposal of ash from the Khian
Sea and was advised of his right to leave and seek legal counsel.
See U.S. app. at 288. He then testified that he had not directed
anyone to remove the ash from the ship, id. at 377-78, and that
he had no knowledge of what happened to the ash, id. at 380-81.
On the basis of this testimony, Reilly was indicted in
two counts for knowingly making false material declarations. 18
U.S.C. § 1623(a). Prior to trial, Reilly challenged the Delaware
indictment alleging that the questions he was asked before the
grand jury were too vague and ambiguous to support a conviction
under section 1623(a). The district court rejected this
argument. See United States v. Reilly, 811 F. Supp. at 180.
However, Reilly now contends that both questions asked before the
Delaware grand jury and questions posed at the contempt hearing
held in the Eastern District of Pennsylvania were too vague and
ambiguous to support his false declarations convictions. See R.
br. at 49-56. We disagree.
First, Reilly claims that the following question posed
before the grand jury was too vague and ambiguous: "What happened
to the ash?". According to Reilly, "[t]here was nothing about
the context within which 'What happened to the ash?' was asked
that signified that the questioner did not care where, in any
43
specific sense, the ash was off-loaded, but instead was concerned
only with whether it was disposed of somewhere -- anywhere -- in
the ocean." Id. at 52. We reject Reilly's suggestion that
because he thought he was being asked exactly "[w]here in the
ocean" the ash was off-loaded he was not testifying falsely by
stating that he did not know what happened to the ash. There is
no doubt that the question "[w]hat happened to the ash?" was
sufficiently precise to support Reilly's false declaration
conviction. A person who knows that the ash was dumped in the
ocean knows what happened to the ash. The grand jury, after all,
did not ask him where it was dumped. Moreover, we reject
Reilly's argument that the grand jury's question, "[d]id you
direct anyone to take anything off that ship after it left
Yugoslavia?", see U.S. app. at 377-78, was vague due to the use
of the term "direct" and the placement of the modifier "after it
left Yugoslavia."
We also find that the questions posed in the district
court contempt proceeding regarding Reilly's "knowledge" were
sufficiently precise. Reilly was asked: "[d]o you have any
knowledge . . . as to what happened to the incinerator residue on
board the vessel?" and "[d]o you have any knowledge as to the
means by which it might be ascertained what happened to the
residue on board the vessel?". See id. at 237. We do not
believe that in the context of the questions, the term
"'knowledge,' without further definition, is inherently
ambiguous." See R. br. at 54 (citing United States v. Cook, 497
F.2d 753, 764 & n.4 (9th Cir. 1972) (dissenting opinion),
44
majority opinion withdrawn and dissenting opinion reinstated on
rehearing as majority position in relevant part, 489 F.2d 286(9th Cir. 1973)).
Reilly cites Bronston v. United States, 409 U.S. 352,
361-62, 93 S.Ct. 595, 601-02 (1973), in support of his argument
that the questions underlying his false declaration convictions
were excessively vague. However, Bronston is distinguishable
because, as we noted in United States v. Slawik, 548 F.2d 75, 86
(3d Cir. 1977), "Bronston involved literally true but misleading
answers." In Bronston, 409 U.S. at 361-62, 93 S.Ct. at 601-02,
the Supreme Court held that the perjury statute, 18 U.S.C. §1621,
does not apply to statements that are literally true, even if
these statements create an implication which is false. The
Supreme Court's reasoning in Bronston applies equally to the
false declarations statute, section 1623. See Slawik, 548 F.2d
at 83 (To violate 18 U.S.C. § 1623, testimony must be "both false
and material. If literally true, there was no offense, even if .
. . [the defendant's] answer was deliberately misleading.")
(citing Bronston, 409 U.S. 352, 93 S.Ct. 595 (1973)). However,
this case bears no resemblance to Bronston.
Bronston involved a perjury prosecution arising from a
bankruptcy hearing at which one of the defendant's creditors
asked him whether he had ever had a Swiss bank account, and the
defendant responded by stating that his company once had a Swiss
bank account for six months. Id. at 354, 93 S.Ct. at 598. Though
the defendant's answer was unresponsive and created the false
implication that he had never had a Swiss bank account, his
45
literal statement regarding his company's Swiss bank account was
true. Id. Therefore, the Supreme Court concluded that he could
not be convicted of perjury as Congress did not intend to
criminalize "answers unresponsive on their face but untrue only
by 'negative implication.'" Id. at 361, 93 S.Ct. at 601.
We cannot classify Reilly's responses in the district
court or to the grand jury as "literally true." Moreover, we
have "eschew[ed] a broad reading of Bronston," id., and held that
[a]s a general rule, the fact that there is some ambiguity in a
falsely answered question will not shield the respondent from a
perjury or false statements prosecution. . . . Normally, it is
for the petit jury to decide which construction the defendant
placed on the question. . . . It is difficult to define the
point at which a question becomes so ambiguous that it is not
amenable to jury interpretation. We have stated that the point
is reached 'when it [is] entirely unreasonable to expect that the
defendant understood the question posed to him.' Slawik, 548 F.2d
at 86. Other courts have said that '[a] question is
fundamentally ambiguous when it "is not a phrase with a meaning
about which men of ordinary intellect could agree, nor one which
could be used with mutual understanding by a questioner and
answerer unless it were defined at the time it were sought and
offered as testimony."'
United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir. 1987)
(quoting United States v. Lighte, 782 F.2d 367, 375 (2d Cir.
1986)) (some internal citations omitted). Under either
construction of the Bronston standard for ambiguity, it is clear
that the questions posed to Reilly were not so ambiguous that
they were no longer amenable to jury interpretation.
D. Did Reilly's false declarations
indictment adequately allege the falsity
of Reilly's responses to the grand jury
and the district court?
Reilly argues that the indictments on which his false
declaration convictions were based were defective because they
46
failed to allege adequately the falsity of his responses to the
district court and the grand jury. See R. br. at 56-60. We have
held that "a conviction under 18 U.S.C. § 1623 may not stand
where the indictment fails to set forth the precise falsehood
alleged and the factual basis of its falsity with sufficient
clarity to permit a jury to determine its verity and to allow
meaningful judicial review of the materiality of those
falsehoods." Slawik, 548 F.2d at 83. It is undisputed that the
Delaware indictment alleged that Reilly's responses to the grand
jury were false because he knew the ash on board the Khian Sea
had been dumped into the water in and around the Indian Ocean.
See R. br. at 57-58. On this basis, the district court held that
the Delaware indictment adequately alleged the falsity of
Reilly's statements. Reilly, 811 F. Supp. at 179. The
Pennsylvania indictment alleged that Reilly's responses to the
district court were false because he knew the ash on board the
Khian Sea had been dumped into the water in and around the
Atlantic Ocean and Indian Ocean. We conclude that both the
Delaware indictment and the Pennsylvania indictment adequately
alleged the falsity of Reilly's statements. See R. br. at 57-58.
Reilly analogizes this case to United States v.
Tonelli, 577 F.2d 194, 198 (3d Cir. 1978), in which we held that
a false declarations indictment is defective when it "fails to
specify in what particular the defendant's reply was false."
However, Tonelli is distinguishable. In Tonelli, the indictment
alleged that the defendant made a false declaration when he
denied having participated in placing certain pension fund monies
47
in certificates of deposit. Tonelli, 577 F.2d at 197. Although
the "defendant's initial denial of involvement, standing alone,
was not true, . . . when the prosecutor subsequently defined
'participation in the placement of . . . monies . . . for the
purchase' as including a recommendation [to use a particular
bank, the defendant] . . . answered truthfully." Id. at 198.
Thus, at least one of the defendant's responses to the question
was "literally true." Moreover, the indictment quoted only the
first, more general question, "ignoring the qualifying
definitions [subsequently] used by the prosecutor," and therefore
it was "misleading." Id.By identifying Reilly's responses that he had no idea
what happened to the ash or how it might be ascertained what
happened to the ash and alleging that Reilly knew the ash had
been dumped into the ocean, the indictments in this case, unlike
the indictment in Tonelli, "set forth the precise falsehood[s]
alleged and the factual basis of . . . [their] falsity with
sufficient clarity to permit a jury to determine . . . [their]
verity and to allow meaningful judicial review of the materiality
of those falsehoods." Slawik, 548 F.2d at 83. The indictment
also alleged that Reilly responded falsely when he denied having
directed the dumping of the ash from the Khian Sea, and as the
government concedes, "there was no specific averment in the . . .
Wilmington indictment that Reilly had in fact directed the
dumping." See U.S. br. at 49. However, unlike the questions in
Tonelli, the grand jury's question regarding whether Reilly
directed the dumping of ash was quite precise and was not
48
excerpted in the indictment in a misleading manner. Moreover, we
see no evidence that Reilly's response to this question or any of
the other related questions was "literally true." Thus, in the
circumstances, the indictment in this case, unlike the indictment
in Tonelli, adequately specified "in what particular the
defendant's reply was false." Tonelli, 577 F.2d at 198.
E. Was the question posed to Dowd too ambiguous to
allow his response to form the basis of a false
declarations conviction?
Dowd appeared before a federal grand jury for the
District of Delaware on February 14, 1990. See U.S. app. at 405-
95. Based on his testimony before the grand jury, Dowd was
charged with one count of knowingly making a false declaration
under oath. While this count alleged that Dowd knowingly made
three false declarations before the grand jury, the district
court instructed the jury that a conviction required proof beyond
a reasonable doubt that Dowd knowingly made only one false
declaration. See U.S. app. at 231. The indictment listed the
following three questions and allegedly false declarations:
A GRAND JUROR: Do you know what
happened to the ash?
THE WITNESS: No.
A GRAND JUROR: You have no idea?
THE WITNESS: No, I don't. I honestly
have not been on that ship for two and a half
years.
. . .
A GRAND JUROR: . . . [y]ou didn't ask
where it went? You didn't want to know where
it went?
THE WITNESS: No, I didn't ask, and I
don't know. All right? Nor did he tell me.
49
See D. app. at 212-13.
The jury's answers to special interrogatories indicate
that it found Dowd guilty only of making a knowingly false
declaration in response to the question "You have no idea?" See
U.S. app. at 234-35. The jury did not return a verdict with
respect to Dowd's response to the question "[d]o you know what
happened to the ash?" and found Dowd "not guilty" of violating 18
U.S.C. § 1623(a) based on his response to the question "[y]ou
didn't ask where it went? You didn't want to know where it
went?". Like Reilly, Dowd asserts that his statement was made in
response to a question that was too ambiguous to support his
conviction for making a false declaration. The district court
rejected this argument and so do we. See Reilly, 811 F. Supp. at
181.
As the government argues, viewed in context, the
question posed to Dowd was "you have no idea [what happened to
the ash]?" See U.S. br. at 51. Dowd concedes that the question
"could reasonably be interpreted simply as a restatement of the
preceding question," and that "[u]nder this interpretation, the
question essentially asked . . . '[a]re you certain you do not
know what happened to the ash?" See D. br. at 19. However, Dowd
contends that the question also could be construed to call for
"intelligent speculation," id. at 22, that the jury's responses
to the special interrogatories confirm that this was the
construction it adopted, id. at 20. He further argues that a
"jury is not free to attempt to decipher which of two meanings to
50
accept," id. at 21 (citing United States v. Manapat, 928 F.2d
1097, 1101 (11th Cir. 1991)).
We conclude that the question was not "fundamentally
ambiguous." First, a jury is generally free to determine the
meaning the defendant ascribed to a question. As we noted above,
when there is "some ambiguity[,] . . . [n]ormally, it is for the
petit jury to decide which construction the defendant placed on
the question." United States v. Ryan, 828 F.2d at 1015. The
question posed to Dowd, like those posed to Reilly, "is not so
ambiguous that it is not amenable to jury interpretation" because
it is reasonable "'to expect that the defendant understood the
question.'" Id. (quoting Slawik, 548 F.2d at 86). The
prosecutor expressly instructed Dowd that the questions were
intended to determine what he knew, and that if he didn't know
something, he should "just say . . . [I] don't know." See U.S.
app. at 439; see also id. at 446 ("[i]f you don't know something,
tell us you don't know"). Moreover, Dowd's responses indicate
that he was aware that he should respond based on his own
knowledge, and that he should define his own "knowledge" to
include information obtained from speaking to others.0 See e.g.,
id. at 453 ("[t]o my knowledge, no"), 478-80 ("A. . . . The
repair work done in Singapore, in Yugoslavia, wasn't complete
0
The dissent contends that the question "You have no idea?" was
"fatally ambiguous" because it "is so fundamentally ambiguous
that it would be entirely unreasonable to expect that [Dowd]
understood it." Dissent typescript at 23. As we stated above,
we conclude that the question posed to Dowd was not "fatally
ambiguous" because it is reasonable "'to expect that the
defendant understood the question.'" United States v. Ryan, 828
F.2d at 1015 (citation omitted).
51
because the vessel could not complete its survey . . . [b]ecause
there was ash in the cargo. . . . A GRAND JUROR: Did you just
say when the ship got to Yugoslavia it still had the ash on it?
THE WITNESS: I wasn't there. I was told that. Okay. Yes.").
Second, Dowd's reliance on the jury's responses to the
special interrogatories is inappropriate. The jury's responses
to the special interrogatories are immaterial to our inquiry
because the jury was not required to make a finding regarding
more than one of Dowd's three allegedly false responses, and it
did not make a finding regarding Dowd's response to the first of
the three questions identified in the false statements count.
Moreover, as we pointed out in United States v. Vastola, 899 F.2d
211, 225 (3d Cir.), cert. granted and judgment vacated on other
grounds, 497 U.S. 1001, 110 S.Ct. 3233 (1990), principles of
estoppel do not require the verdict rendered at a single trial to
be consistent. Thus, we conclude that the question on which
Dowd's conviction rests was not too ambiguous to support it.
F. Was Dowd's response "material"?
Dowd argues that his conviction under the false
declarations statute, 18 U.S.C. § 1623, should be reversed
because the government failed to establish that his testimony was
"material" to the grand jury's investigation. We agree with the
district court's conclusion that this argument lacks merit. See
Reilly, 811 F. Supp. at 180-81. Section 1623 provides in
relevant part that
52
(a) [w]hoever under oath . . . in any
proceeding before or ancillary to any court
or grand jury of the United States knowingly
makes any false material declaration or makes
or uses any other information, including any
book, paper, document, record, recording, or
other material, knowing the same to contain
any false material declaration, shall be
fined not more than $ 10,000 or imprisoned
not more than five years or both.
Thus, "under the false declarations statute, 18 U.S.C. § 1623,
materiality is an essential element of the offense and a question
of law reserved for decision by the court." United States v.
Crocker, 568 F.2d 1049, 1056 (3d Cir. 1977) (citing Slawik, 548
F.2d at 75, 83). "It is well established that a perjurious
statement is material . . . if it has a tendency to influence,
impede, or hamper the grand jury from pursuing its
investigation." United States v. Lardieri, 497 F.2d 317, 319 (3d
Cir. 1974), on rehearing, 506 F.2d 319 (3d Cir. 1974). Moreover,
"leads to additional facts may be material even though they do
not directly reflect on the ultimate issue being investigated."
497 F.2d at 319.0 We apply a plenary standard of review to
0
See also Crocker, 568 F.2d at 1057 ("it suffices to establish
that testimony . . ., if false, [would] tend to impede an
investigation"); United States v. Phillips, 674 F. Supp. 1144,
1148 (E.D. Pa. 1987) ("A question asked of a grand jury witness
is material if it 'is such that a truthful answer could help the
inquiry, or a false response hinder it, and these effects are
weighed in terms of potentiality rather than probability. . . .
It is of no consequence that the information sought would be
merely cumulative, that the response was believed by the grand
jury to be perjurious at the time it was uttered, or that the
matters inquired into were collateral to the principal objective
of the grand jury.'") (emphasis in original) (quoting United
States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449
U.S. 995, 101 S.Ct. 534 (1980)); United States v. Schiavo, 375 F.
Supp. 475, 477 (E.D. Pa.) ("False testimony is material if it has
a natural tendency to influence the grand jury in its
investigation, and there is no need to prove the perjured
53
determine whether Dowd's testimony was material as a matter of
law. Slawik, 548 F.2d at 83.
According to Dowd, the government failed to satisfy the
materiality requirement because the question posed to Dowd could
be construed in one of two ways: (1) as a restatement of the
previous question calling for knowledge that was material to the
grand jury's investigation or (2) as a distinct question calling
for intelligent speculation, which was not material to the grand
jury's investigation. See D. br. at 24-27. Dowd analogizes this
case to Slawik, and argues that Slawik requires us to hold that
the government failed to satisfy the materiality requirement.
However, this case is distinguishable from Slawik.
In Slawik, the defendant testified that he had given
the following advice to an associate subpoenaed to testify before
a grand jury:
Look Barney [sic] you will probably only be
there a day. Get yourself legal counsel,
tell them the truth. They are not going to
hold you. You can go back to Florida.
Slawik, 548 F.2d at 82. The court held that the defendant's
conviction under section 1623 must be reversed because "[n]either
the indictment nor the bill of particulars set[] forth the grand
jury's understanding of . . . [the underlined] words," and thus
the court could not determine "whether the trial jury found that
testimony actually impeded the jury's work. The false testimony
need not be directed to the primary subject of the investigation,
it is material if it is relevant to any subsidiary issue under
consideration by the tribunal.") (citing United States v. Lococo,
450 F.2d 1196, 1199 (9th Cir. 1971), cert. denied, 406 U.S. 945,
92 S.Ct. 2040 (1972)), aff'd, 506 F.2d 1053 (3d Cir. 1974)
(table).
54
. . . [the defendant] had failed actually to advise . . . [his
associate]: (1) to tell counsel the truth, or (2) to tell the
grand jury the truth." Id. at 83. Only the latter construction
would have rendered the alleged falsehood "material," and "the
imprecision of the allegations contained in the indictment and
bill of particulars render[ed] meaningful review of materiality
impossible." Id.This case is distinguishable from Slawik because the
indictment here set forth the meaning of Dowd's responses by
specifying that Dowd's responses "were false in that . . . [he,]
then and there well knew that the incinerator ash on board the
Khian Sea had been discharged, disposed of and off loaded from
the Khian Sea by dumping the incinerator ash into the water in
and around the Indian Ocean." See D. app. at 31. Thus, the
indictment did not permit the construction of the question "[y]ou
have no idea [what happened to the ash]?" as a question that
called for "intelligent speculation." Instead, the indictment
indicated that the question was merely a restatement of the
previous question regarding Dowd's "knowledge" of "what happened
to the ash," and, as Dowd concedes, this question and Dowd's
response to it were material to the grand jury's investigation.
G. Did the evidence support Dowd's false declaration
conviction?
Dowd also argues that if we construe the question
"[y]ou have no idea?" to mean "are you certain you do not know
what happened to the ash?", his conviction cannot stand because
55
there was insufficient evidence indicating that he "actually knew
'what happened to the ash.'" See D. br. at 28. Thus, Dowd
claims that there was insufficient evidence of the falsity of his
statement to sustain his conviction under 18 U.S.C. § 1623.
According to Dowd, Fuentes's testimony regarding whether he
discussed the disposal of the ash with Dowd was self-
contradictory. Id. at 29-31. Dowd also argues that Fuentes's
testimony regarding Dowd's instructions to tell inquiring
journalists that the ash had been left in a country whose
identity could not be revealed and to create a false log of the
route taken by the Khian Sea does not prove that Dowd knew the
ash had been dumped in the ocean. Id. at 31-34.
"We review challenges to the sufficiency of the
evidence presented at trial by ascertaining whether, viewing the
evidence in the light most favorable to the government, a
reasonable mind could find the defendant guilty beyond a
reasonable doubt of every element of the offense." United States
v. Terselich, 885 F.2d 1094, 1097 (3d Cir. 1989). Here we
conclude, viewing the evidence in the light most favorable to the
government, that a jury could have found beyond a reasonable
doubt that Dowd's statement that he had no idea what happened to
the ash was false.
We base our holding on several grounds. First,
Fuentes's testimony was not inherently self-contradictory. He
testified on direct that he asked Dowd "what would be happening
now that we have dumped the ash to the ocean and if the
journalist will be still making questions around the cargo." See
56
D. app. at 320. He then reiterated during his cross-examination
that when Dowd boarded the ship in Singapore, "I asked him,
[n]ow, what we will do, what we will do now that we have dumped
the ash in the ocean?". See U.S. app. at 95. It is true that
Fuentes admitted having told a private investigator that he did
not "tell . . . [Dowd] straight that, hey, we did . . . [the
dumping] because he already knew." See D. app. at 334. However,
as the government points out, the jury reasonably could have
found that Fuentes's earlier statement was not in conflict with
his trial testimony because "Fuentes mentioned the dumping to
Dowd only as a predicate for obtaining instructions about what to
tell the press. This may have been what Fuentes meant when he
told the investigator that he had not told Dowd 'straight' about
the dumping." See U.S. br. at 58-59. Moreover, Fuentes
clarified what he had said to the private investigator about his
conversation with Dowd by stating "[w]e [he and Dowd] discuss it,
we talk about it, but I did not make the straight question." See
D. app. at 334. Thus, we cannot conclude that as a matter of
law, Fuentes's testimony was self-contradictory or that he
retracted his earlier testimony about having discussed the
dumping with Dowd.
Second, Fuentes's other testimony regarding Dowd
supported the jury's finding that Dowd knew about the dumping. We
conclude that, viewed in the light most favorable to the
government, Fuentes's testimony that Dowd boarded the ship in
Singapore to "pickup the gear that we had been using to discharge
the ship," id. at 319-20, and instructed him to tell journalists
57
that the ash had been discharged in an unidentified country
pursuant to an agreement, see U.S. app. at 95, D. app. at 320,
and to create a false logbook documenting "another route other
than the one we have been," see id. at 324-25, is sufficient to
support the jury's finding that Dowd knew the ash had been dumped
in the ocean.
Finally, there was evidence indicating that, as
president of Coastal Carriers, Dowd played an active role in the
affairs of the Khian Sea from the moment the ash was loaded, and
this evidence also supports the conclusion that Dowd knew about
the dumping. Dowd was present when the ash was first loaded onto
the Khian Sea, see U.S. app. at 124, knew some of it was
off-loaded in Haiti, id. at 125, searched for possible sites to
discharge the remaining ash, id. at 118-19, met the ship in
Singapore where it was to be reclassified inasmuch as its holds
no longer contained any ash, and communicated with Reilly from
Singapore, id. at 126. Overall, the evidence of the falsity of
Dowd's statement that he had "no idea" what happened to the ash
is more than sufficient to sustain his conviction under 18 U.S.C.
§ 1623.
H. Did the prosecutor improperly offer his opinion and
unsworn testimony during his closing argument?
Dowd and Reilly argue that the prosecutor prejudiced
them in his closing argument by referring to their testimony as
"lies," and by misstating the record in several respects. See D.
br. at 34-37; R. br. at 60-69. Dowd and Reilly unsuccessfully
58
raised their arguments regarding the impropriety of the
prosecutor's closing argument in motions for new trials. See D.
app. at 42-43. Like the district court, we reject their
arguments.
While it is true that the prosecutor referred to Dowd's
and Reilly's testimony as "lies," in making this characterization
he was not guilty of misconduct because he merely was making a
"fair comment on the evidence adduced at trial." United States
v. Pungitore, 910 F.2d 1084, 1127 (3d Cir. 1990), cert. denied,
111 S.Ct. 2009 (1991). Thus, although such a comment may in some
instances be an inflammatory expression of a prosecutor's
personal belief and require reversal, here it does not.
Furthermore, the prosecutor's characterization of Dowd's and
Reilly's testimony as lies referred to their statements at the
grand jury and contempt proceedings, and when a prosecutor
contends that a defendant in a false declaration case lied in the
underlying proceedings, he merely is arguing that the evidence
supports a verdict of guilty.
Dowd and Reilly also claim that the prosecutor made
other improper statements during his closing argument. According
to Dowd, the prosecutor's "most devastating" misstatement of the
record was his assertion that Dowd played a role in ordering
Fuentes to destroy the radiotelegrams. D. br. at 35. However,
Dowd did not object to this statement at trial and therefore "we
may review only for plain error." Pungitore, 910 F.2d at 1125-
26. As we discussed above, there was substantial evidence
indicating that Dowd knew about the dumping of the ash into the
59
ocean, and Fuentes testified that Dowd instructed him to falsify
the ship's logs. Although Fuentes testified that Reilly ordered
him to destroy the radiotelegrams, see D. app. at 327, 348, he
also testified that "[t]he owners didn't want them on board. . .
. They didn't want them on board," see U.S. app. at 97 (emphasis
added). Moreover, the evidence indicates that Dowd and Reilly
were in contact while Dowd was in Singapore. Thus, there was a
basis for the inference that Dowd participated in the decision to
have Fuentes destroy the radiotelegrams. In any event, even if
the statement should not have been made, we see no basis to
conclude that it gives rise to a supportable claim of "plain
error" in light of the record as a whole. We also point out that
the district court's instruction to the jury to rely on their
recollection of the facts and not counsel's statements and
arguments cured any possible prejudice resulting from the
comment. In fact, the prosecutor said the same thing to the jury
in his summation. Accordingly, we conclude that we should not
reverse by reason of the prosecutor's statement that Dowd and
Reilly ordered Fuentes to destroy the radiotelegrams.
Dowd and Reilly argue that the prosecutor misstated the
evidence by suggesting that they personally had destroyed
documents. Specifically, they challenge the prosecutor's
contention that they destroyed their copies of radiotelegrams
associated with the Khian Sea. See D. app. at 475. However,
this contention was supported by evidence, including a letter
from Coastal Carriers to the grand jury stating that "no radio
logs or other logs" were in Coastal Carriers's possession, see R.
60
app. at 1264, and Fuente's testimony regarding the instructions
he received to falsify the ship's log and destroy the
radiotelegrams. Thus, the prosecutor merely was drawing an
inference from certain pieces of evidence in the record.
Reilly also argues that the prosecutor "testified"
based on non-record evidence by using the pronoun "we" when
discussing Reilly's allegedly false testimony, by referring to
Amalgamated and MASCO as "shells" for Reilly and Dowd, and by
stating that the defendants had not called any witnesses from the
radio transmitting companies because the radiotelegrams were
"accurate." R. br. at 63-65. Reilly cites United States v.
DiLoreto, 888 F.2d 996, 999 (3d Cir. 1989), for the proposition
that these remarks "require reversal per se." In DiLoreto, we
held that "a prosecutor's remarks regarding the defendant's guilt
or a witness' credibility, if based on information not adduced at
trial, require reversal per se." Id. at 999. We conclude that
DiLoreto does not require reversal per se in this case.
The prosecutor used the pronoun "we" when arguing that
the questions posed to the defendants were clear. He stated,
[y]ou know what those words meant because
they are words that are used in ordinary
conversation. . . . Everybody knew what we
were talking about. Everybody knew what they
were talking about in that hearing in
Philadelphia. They were talking about the
ash on board the Khian Sea.
See R. app. at 1105. The prosecutor who made this statement also
presented the matter to the grand jury in Delaware when Reilly
and Dowd testified. Prior to trial, they sought to disqualify
the prosecutor, based in part on the contention that he would be
61
an unsworn witness at trial. The district court, however,
refused to disqualify him, stating that it assumed the prosecutor
would be "very careful in the presentation of the Government's
case." United States v. Reilly, Crim. Nos. 92-53-JJF, 93-8-JJF,
93-10-JJF, Memorandum Opinion at 9 (D. Del. May 7, 1993) (see R.
app. at 109). Although the prosecutor's choice of words was
unfortunate, the prosecutor's isolated use of the pronoun "we"
did not constitute testimony based on evidence not adduced at
trial. He did not say "we" or "I" knew what the defendant was
talking about. He said "[e]verybody" knew what "we" were talking
about. Consequently, the remark was merely an inference from
evidence in the record, and thus does not require reversal per
se. See DiLoreto, 888 F.2d at 999; Government of Virgin Islands
v. Joseph, 770 F.2d 343, 349 (3d Cir. 1985). Furthermore,
reviewing the matter to determine if there was prejudice from the
prosecutor's use of words, we conclude that "[u]nder the
circumstances and in light of the strong evidence of guilt . . .
, we believe . . . [the court's] instructions adequately cured
any prejudice that may have arisen." Joseph, id. at 349.
Reilly also faults the prosecutor for referring to
Amalgamated and MASCO as "shells" used by Reilly and Dowd to
conceal their involvement with the dumping operation of the Khian
Sea, see R. app. at 1088, 1115-16. However, the record also
supports this statement. As noted above, there is significant
evidence indicating that Reilly sent radiotelegrams from
Annapolis signed "AMALGAMATED" or "MASCO". Moreover, Cheryl
Haye, a secretary for MASCO, testified that MASCO set up and
62
managed businesses, that she did not know of any MASCO office in
Annapolis, id. at 525, that MASCO and Amalgamated shared the same
post office box in the Bahamas, id. at 532, that there was no
physical separation between Lily and MASCO inside the MASCO
offices, id. at 527, that she signed a letter as president of
Lily although she was actually a secretary for MASCO, id. at 534,
and that she regularly would sign letters as president of
corporations created by MASCO although she knew nothing about the
companies, id. at 538-39. Clare Dobbins, a secretary in the
Coastal Carriers office in Annapolis, testified that there was
Lily letterhead in the Coastal Carriers office, see U.S. app. at
21, and that the check books for Coastal Carriers, Amalgamated,
and the Coastal Barge Corporation were kept in the Coastal
Carriers office. Id. at 22. Thus, we agree with the
government's contention that "[i]t was proper to argue, based on
this evidence, that the jury . . . should disregard the form of
these different corporations and look instead to the substance of
who was doing what." See U.S. br. at 70.
Finally, Reilly argues that the prosecutor stated that
the defendants had not called any witnesses from the radio
transmitting companies because the radiotelegrams were
"accurate," and that this statement requires reversal of Reilly's
conviction because it was based on evidence outside the record.
After the jury was excused, the defendants objected to this
statement. See U.S. app. at 216-19. At this point, the district
court suggested that the parties stipulate that the cable
companies did not have the required information to verify the
63
accuracy of the radiotelegrams. Id. at 219-21. The parties
agreed on the stipulation, and the district court read it to the
jury, id. at 221, 224-25. The defendants did not raise any
further objection or seek further clarification. Id. at 225.
Therefore, "[i]nasmuch as appellants did not object to the
curative instruction or request additional instructions, they
apparently were satisfied with the district court's response and
cannot now complain that [the prosecutor's] comments gave rise to
reversible error." Pungitore, 910 F.2d at 1128.
I. Is the district court's refusal to grant Dowd a
downward departure under the sentencing guidelines
reviewable by this court, and if so, did the
district court err in refusing to grant the
departure?
Dowd sought a downward departure from the sentence
range calculated under the Sentencing Guidelines. Pursuant to 18
U.S.C. § 3553(b), Dowd argued that the court should depart
downward because in his case, "there exist[] . . . aggravating or
mitigating circumstances of a kind, or to a degree, not
adequately taken into consideration by the Sentencing
Commission." Dowd argues that his false declarations prosecution
was "atypical" because "he had nothing whatsoever to do with the
underlying ocean dumping offense," and his "actual false
statement itself is hopelessly technical in nature, arising as it
does from the open-ended, ambiguous question 'You have no idea?'"
See D. br. at 40. Dowd also argues that a downward departure was
warranted because his conviction "may well result in the
suspension and debarment from all future government contracts not
64
only of Dowd personally but also of the various businesses owned
by his entire family." Id. at 41.
In United States v. Denardi, 892 F.2d 269, 272 (3d Cir.
1989), we held that "we have no jurisdiction to review a district
court's discretionary decision not to depart from the
Guidelines." United States v. Bierley, 922 F.2d 1061, 1066 (3d
Cir. 1990) (citing United States v. Denardi, 892 F.2d at 272).
"However, we recognized in Denardi that when the district court's
decision not to depart is predicated on the legally erroneous
impression that it did not have the authority to do so, we may
review that decision." Bierley, 922 F.2d at 1066. We believe
that the district court denied Dowd a downward departure because
it concluded that the Guidelines did not authorize it to depart.
See D. app. at 505-06. Thus, we have jurisdiction to review the
district court's decision, and based on our review, we conclude
that its decision was correct.
Even if it is true that Dowd "had nothing whatsoever to
do with the underlying ocean dumping offense," this fact alone
does not establish that Dowd's false statement "differs from the
norm." See U.S. Sentencing Guidelines, Ch. 1, Pt. A, note 4(b),
at 5-6 (1993). As the government points out, Application Note 3
to Guidelines § 2J1.3 specifically addresses the situation where
the defendant is convicted both for perjury and the "offense with
respect to which he committed perjury," indicating that the
Commission did not consider a conviction for perjury absent a
conviction for an underlying offense to be "atypical." Further,
we do not believe that his false statement was particularly
65
"technical in nature," or that it arose from an ambiguous
question.
Finally, the district court was correct in concluding
that the conviction's potentially harmful financial consequences
for Dowd, his family, and their businesses did not justify a
downward departure from the Guidelines. The Sentencing
Commission's policy statement regarding the propriety of granting
a downward departure based on a defendant's "vocational skills"
is controlling, Guidelines § 5H1.2,0 and this policy statement
indicates that a sentencing court only should grant a downward
departure on this basis in "extraordinary circumstances." See
United States v. Sharapan, 13 F.3d 781, 784 (3d Cir. 1994). Our
application of this policy statement in Sharapan led us to
conclude that the district court erred in granting a downward
departure based on its determination that the defendant's
incarceration would cause his business to fail. Id. at 785-86.
We based our conclusion on our determination that there was
nothing extraordinary in the fact that the incarceration of a
company's principal might "cause harm to the business and its
employees," and that, even assuming that the business would fail
as a result of the defendant's incarceration, there was "no basis
for concluding that this failure would cause any extraordinary
harm to society as a whole." Id. at 785.
0
In Williams v. United States, 112 S.Ct. 1112, 1119 (1992), the
Court held that where "a policy statement prohibits a district
court from taking a specified action, the statement is an
authoritative guide to the meaning of the applicable guideline."
See also United States v. Gaskill, 991 F.2d 82, 85 (3d Cir.
1993).
66
Dowd alleges that his sentence will harm both his
business and that of his family members. Nevertheless, the
Sentencing Commission's policy statement regarding downward
departures based on a defendant's vocational skills is
controlling because the "principle underlying . . . [this policy
statement is] that a sentencing judge may grant a downward
departure based on a defendant's ability to make a work-related
contribution to society only in extraordinary circumstances,"
id., and it follows from this principle that a court may grant a
downward departure based on a defendant's relatives' abilities to
make work-related contributions to society only in extraordinary
circumstances. It is unfortunate that Dowd's family may suffer
both personally and financially due to his conviction. However,
we see nothing extraordinary in the fact that Dowd's conviction
may harm not only his business interests but also those of his
family members, and we are not convinced that the effects of
Dowd's sentence on these businesses "are of sufficient economic
importance to society to justify a departure." Id.0
III. Conclusion
The judgments of conviction and sentence will be
affirmed.
0
The Sentencing Commission's policy statement regarding the
relevance of family ties and responsibilities to the granting of
a downward departure also supports our decision. It provides
that such factors are relevant only in "extraordinary"
circumstances, Guidelines § 5H1.6, as "'[d]isruptions of the
defendant's life, and the concomitant difficulties for those who
depend on the defendant, are inherent in the punishment of
incarceration.'" United States v. Gaskill, 991 F.2d 82, 84-85
(3d Cir. 1993) (quoting United States v. Johnson, 964 F.2d 124,
128 (2d Cir. 1992)).
67
United States v. Reilly -- Nos. 93-7671, 93-7673, 93-7684,
93-7685, 93-7686
and
United States v. Dowd -- No. 93-7694
GARTH, J., dissenting
I am compelled to dissent from the majority opinion as
(1) the record convinces me that Reilly is entitled to a new
68
trial on all charges, and (2) the record also requires that the
false declaration charge against Dowd must be dismissed. I am
also disturbed with the evidentiary analysis by which the
majority sustains Reilly's conviction. That analysis, which in
my opinion is seriously flawed, not only affects this appeal,
but, because it will become the law of this circuit, it
necessarily infects all future trial and appellate proceedings on
which it may impact. It is for these reasons -- more fully
expressed below -- that I find it necessary to part company with
my colleagues in the majority.
I.
I am in accord with the majority that: (1) there was
no ambiguity in the predicate questions underlying Reilly's
convictions for knowingly making false declarations in violation
of 18 U.S.C. § 1623(a); (2) Reilly's false declaration
indictments adequately alleged the falsity of his purportedly
perjurious responses; and that (3) the disputed radiotelegrams
admitted into evidence against Reilly were properly authenticated
through circumstantial evidence.
I am not in accord, however, with the majority's
analysis of the hearsay issues raised by Reilly. For the reasons
which I will discuss in the following section, I disagree with
the majority's holding that 13 of the disputed radiotelegrams
transmitted to the Khian Sea were admissible as non-hearsay
admissions of Reilly. In my opinion, the district court erred in
admitting those radiotelegrams, and that error necessarily
69
undermined the entire trial process, thereby tainting Reilly's
jury conviction on the ocean dumping violation (33 U.S.C.
§1411(a)), as well as his false declaration convictions.
Accordingly, rather than affirm Reilly's conviction, as the
majority holds, I would reverse Reilly's conviction and remand
his case to the district court for a new trial on all charges.
I also must disagree with the majority's affirmance of
Dowd's conviction for knowingly making a false declaration before
the federal grand jury in violation of 18 U.S.C. § 1623(a).
Unlike the majority, I am not convinced that the predicate
question posed to Dowd before the grand jury was unambiguous.
Based on the inherent ambiguity of the question to which Dowd was
found to have responded falsely, I would reverse his conviction,
and I would remand to the district court for dismissal of the
§1623(a) charge against Dowd. My disposition would obviate the
need to address the sentencing issues raised by Dowd.
Inasmuch as I would reverse Reilly's convictions on the
hearsay issue, and Dowd's conviction because of the ambiguity of
the predicate question, I would not reach the improper
prosecutorial comment issues raised by Reilly and Dowd. I hasten
to add, however, that I would otherwise be in accord with the
majority's determination that neither Reilly nor Dowd was
prejudiced by the prosecutor's closing arguments to the jury, and
that our holding in United States v. DiLoreto, 888 F.2d 996, 999
(3d Cir. 1989), does not require reversal per se in this case.
II.
70
I agree that the Government could establish by
circumstantial evidence the authenticity of most, if not all, of
the disputed radiotelegrams transmitted to and from the Khian Sea
during its nearly two-year odyssey. Fed. R. Evid. 901(b)(4)
(authentication can be established by "[a]ppearance, contents,
substance, internal patterns, or other distinctive
characteristics, taken in conjunction with other circumstances");
see also United States v. McGlory, 968 F.2d 309, 329 (3d Cir.
1992) (holding that sufficient evidence existed for the jury to
find that notes were authored by the defendant, despite the
government's inability to establish fully the defendant's
authorship by expert opinion), cert. denied, 113 S.Ct. 1388(1993); United States v. Addonizio, 451 F.2d 49, 71 (3d Cir.
1971) (noting that, for authentication purposes, "the connection
between a message (either oral or written) and its source may be
established by circumstantial evidence"), cert. denied, 405 U.S.
936 (1972).
A thorough review of the record persuades me that the
Government satisfied its burden of establishing a prima facie
case from which the jury could have inferred that the disputed
radiotelegrams were what they purported to be, i.e., cable
communications between the Khian Sea and Coastal Carriers and
other onshore entities and individuals, including Reilly. As we
have often said, "'the burden of proof for authentication is
slight. All that is required is a foundation from which the
fact-finder could legitimately infer that the evidence is what
the proponent claims it to be.'" Link v. Mercedes-Benz of N. Am.
71
Inc., 788 F.2d 918, 927 (3d Cir. 1986) (quoting McQueeney v.
Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985))
(additional citations omitted).
Hence, I am in accord with the majority's holding that
the disputed radiotelegrams were properly authenticated pursuant
to Federal Rule of Evidence 901, by circumstantial evidence. See
United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993) ("The
scope of appellate review upon this issue is confined to
determining whether the admission constituted abuse of judicial
discretion in determining that a prima facie case had been made
out") (internal quotes and citations omitted), cert. denied, 114
S. Ct. 1660 (1994).
A.
A showing of authenticity, however, "is not on a par
with more technical evidentiary rules, such as hearsay
exceptions, governing admissibility." Link, 788 F.2d at 928(quoting United States v. Goichman, 547 F.2d 778, 784 (3d Cir.
1976)); accord McGlory, 968 F.2d at 328-329. That is because,
once a prima facie showing of authenticity is made, it is the
jury, and not the court, which ultimately determines the
authenticity of the evidence. Id.In contrast, the determination of whether hearsay is
admissible at all is a matter of law for the court to decide, not
a condition of fact subject to jury resolution. The majority's
treatment of the hearsay issues raised by Reilly, however,
effectively and impermissibly equates our evidentiary rules
72
governing admissibility with the slight showing required for
authentication.
Contrary to the majority view, I am convinced that 13
of the incoming radiotelegrams, while properly authenticated,
should not have been admitted into evidence because they contain
inadmissible hearsay. See McGlory, 968 F.2d at 331("Notwithstanding authentication, the [documents] would still
have to be excluded if the assertions in them are hearsay that
does not fall under any exception to Federal Rule of Evidence 802
precluding the admissibility of hearsay.").
B.
For purposes of my analysis, I am willing to assume
that the 18 outgoing radiotelegrams (i.e., those cable
communications from the Khian Sea to onshore entities and
individuals) were properly admitted by the district court. I
therefore accept the majority's position that the messages
contained in those outgoing radiotelegrams were admissible
pursuant to Federal Rule of Evidence 801(d)(1) as non-hearsay
prior statements of prosecution witness Captain Fuentes, and that
the outgoing radiotelegrams themselves were admissible under the
Rule 803(6) hearsay exception for records of regularly conducted
activity. See Majority Typescript at 40-41. I also will allow
that the admission of the four incoming radiotelegrams not linked
to Reilly was harmless. See id. at 42.
We thus are left with 13 incoming radiotelegrams: the
12 purportedly sent to the Khian Sea by Reilly in Annapolis; and
73
the one purportedly sent by Kimon Berbillis, the shipping agent
for Romo in Greece. The transmission of each of these incoming
radiotelegrams involved the following three-step process: (1) a
coastal station operator would receive a message from an onshore
sender; (2) that operator would then note the date and time of
the transmission and where the communication or message
originated or was "Handed In"; and (3) the coastal station
operator would then transmit that message in Morse Code to the
Khian Sea, where the radioman onboard the Khian Sea would convert
the incoming message from Morse Code into a typed message.
Reilly argues that the incoming radiotelegrams
contained three levels of hearsay: (1) the communication between
the onshore sender (the hearsay declarant) and the coastal
station operator (the witness auditor); (2) the communication
between the coastal station operator (the hearsay declarant) and
the radio operator on the Khian Sea (the witness auditor); and
(3) the radio operator's written recordation of the message. The
majority concedes "that the incoming radiotelegrams to the Khian
Sea were the product of [these] three out-of-court 'statements.'"
Majority Typescript at 29. It concludes, however, that those
three out-of-court "statements" are not inadmissible hearsay. Id.
at 30. In reaching that conclusion, I suggest that the majority
has put the rabbit in the hat.
C.
The majority's hearsay analysis is fundamentally flawed
because it is premised on the assumption that the 12
74
radiotelegrams allegedly sent by Reilly originated in Annapolis,
where Reilly lived and worked. See Majority Typescript at 7, 17,
19, 20, 21, 22, 24, 26, 27, 31, 32, 33, 34, 35, 40. Yet, the
Government never adduced any evidence, apart from the disputed
documents themselves, that the messages contained in the
radiotelegrams had actually originated in Annapolis. Without
such evidence, these radiotelegrams and all statements contained
therein cannot be linked to Reilly.
There was no testimony from any of the intermediate
coastal stations that the radiotelegrams were, in fact, "Handed
In at ANNAPOLIS," as asserted by the coastal station operators in
the radiotelegrams. No coastal station operator, employee, or
representative ever testified that the originating stations, and
the dates asserted in the radiotelegrams were, in fact, the
originating stations from which, and the dates on which, the
messages from the unidentified onshore declarants were received
and/or transmitted by the coastal stations. Moreover, even
though the district court acknowledged that "there may be
significant transmission errors," R. app. 1297-98, there was no
evidence presented that the coastal stations accurately
transcribed the messages they received from the unidentified
onshore declarants, or that the coastal stations accurately
transmitted those messages, in Morse Code, to the Khian Sea.
Hence, the "statements" contained in the radiotelegrams
can only be viewed as "[h]earsay included within hearsay." See
Fed. R. Evid. 805. We have the hearsay of unidentified onshore
declarants transmitted by unidentified coastal operators, who
75
also transmitted additional hearsay specifying the point of
origin and the date to the Khian Sea radioman, who ultimately
translated all of that hearsay from Morse Code into a written
recordation. As "[h]earsay included within hearsay," the
incoming radiotelegrams thus are subject to Rule 805, which
requires for admissibility that "each part of the combined
statements [must] conform[] with an exception to the hearsay rule
provided in these rules." The majority's "layered approach to
the hearsay analysis," see Majority Typescript at 33 n.14, does
not satisfy that criterion for admissibility of the incoming
radiotelegrams.
Significantly, the majority fully acknowledges that the
point of origin and destination of each radiotelegram, and the
date on which each radiotelegram was sent, "were introduced to
prove their truth, i.e., to prove that the radiotelegrams were
sent from the point of origin to the destination on the
designated date." Majority Typescript at 32. It further
recognizes that the Government did not produce a coastal station
operator as a witness, thereby complicating its hearsay analysis.
Id. at 32 n.14. The majority then attempts to finesse the
absence of any testimony from the coastal stations which arguably
could have bridged the gap in the hearsay communications between
the unidentified onshore declarants and the radioman onboard the
Khian Sea. It declares, in effect, that, while it would have
been nice for the district court to have heard from a coastal
station operator at trial, that testimony is not really necessary
for our purposes because we can assume, through other evidence,
76
that the radiotelegrams were "handed in at Annapolis," and
therefore had to come from Reilly. I disagree.
The majority is remitted to "assembling" evidence from
Captain Fuentes and Coastal Carriers' secretary, Clare Dobbins,
to substantiate its theory that Reilly authored and sent the
radiotelegrams from Annapolis to the Khian Sea, and that Reilly
authorized Berbillis to do the same. The difficulty with this
analysis is that it necessarily must rely on the dates and places
of origin of each radiotelegram. However, no coastal station
operator ever testified to those essential components of the
radiotelegrams, and thus the evidence which the majority seeks to
weave into a hearsay exception fails, because it lacks the
critical links that only the coastal station operators could have
supplied. Hence, none of the trial evidence, set forth in the
majority's opinion, established that these 12 incoming
radiotelegrams actually originated in Annapolis, let alone that
Reilly sent them. See Majority Typescript at 33 nn.14 and 15, 34
n.16, 37 n.17, and 38 n.18. Nor did it establish, as I point out
later, that Reilly ever authorized Berbillis to send the 13th
incoming radiotelegram.
Reilly testified at trial that anyone who knew the
telex billing number for his Annapolis-based company, Coastal
Carrier, could call a coastal station from anywhere in the world
and send a shore-to-ship transmission, which would be identified
as having originated in Annapolis. That testimony was
uncontroverted, and there was no evidence presented by the
Government, apart from the radiotelegrams themselves, that it was
77
Reilly, and not someone else who knew Coastal Carriers' billing
number, who sent the 12 incoming radiotelegrams which the
Government attributed to Reilly.
Because, as I also point out later, the Government
failed to lay the proper foundation for admission of the
radiotelegrams pursuant to the business records exception of Rule
803(6),0 and because the radiotelegrams themselves do not meet
the requirements of any other exception to the hearsay rule,
there is no admissible evidence establishing that the 12
radiotelegrams were sent from Annapolis. See Fed. R. Evid. 805.
Consequently, the "statements" contained in those radiotelegrams
-- which the majority links to Reilly through inadmissible
hearsay (e.g., "Handed In at ANNAPOLIS") -- cannot be deemed
admissible as non-hearsay admissions of Reilly.
Statements attributed to Reilly would, by themselves,
of course, be admissible under Rule 801(d)(2)(A), which provides
0
Rule 803(6) provides:
A memorandum, report, record, or data compilation,
in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time
by, or from information transmitted by, a person
with knowledge, if kept in the course of a
regularly conducted business activity, and if it
was the regular practice of that business activity
to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the
custodian or other qualified witness, unless the
source of information or the method of
circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in
this paragraph includes business, institution,
association, profession, occupation, and calling
of every kind, whether or not conducted for
profit.
78
that a statement is not hearsay if it is offered against a party,
and is the party's own statement in either an individual or
representative capacity. Without the requisite foundational
testimony from a coastal station representative, however, there
simply is no admissible evidence establishing Reilly as the
onshore declarant who transmitted the radiotelegram instructions
to the Khian Sea. That being so, any "statements" allegedly made
in the radiotelegrams by Reilly, either directly or indirectly,
were not admissible as non-hearsay admissions of a party-
opponent. See Fed. R. Evid. 805; Carden v. Westinghouse Elec.
Corp., 850 F.2d 996, 1003 (3d Cir. 1988) ("That part of [the
hearsay included within hearsay] which contains a reiteration of
what someone told him is not admissible as an admission by party-
opponent since the author of the statement is unknown.")
(citation and internal quotation omitted).
By the same token, the message contained in the
radiotelegram purportedly sent to the Khian Sea by Berbillis from
Greece0 is inadmissible hearsay because no coastal station
operator ever established Berbillis as the onshore declarant. Id.Nor can that out-of-court statement be deemed to be an admission
authorized by Reilly under Rule 801(d)(2)(C). That Rule of
0
The radiotelegram purportedly sent on October 7, 1988 from
Kimon Berbillis in Greece to the Khian Sea, contained the
following message:
ATT A. FUENTES PLEASE DELAY YOUR ETA UNTIL NOON OCTOBER
14 STOP TRY ARRIVE WITH 500 TONS IN ONEHOLD STOP REILLY
WILL CABLE YOU INFO YOU REQUESTED STOP BEST REGARDS
KIMON
R.app. 1214.
79
Evidence excludes from the definition of hearsay a statement
introduced against a party which that party authorized another
person to make concerning the subject.
Independent proof of the existence of an agency
relationship and its scope would be required to show that Reilly
authorized Berbillis to send any radiotelegram to the Khian Sea.
See United States v. Pelullo, 964 F.2d 193, 200 n.4 (3d Cir.
1992). Contrary to the majority's position, there is no such
proof to establish that Berbillis, an employee of Romo and not of
Coastal Carriers, "was acting on behalf of Reilly or at his
behest." See Majority Typescript at 23. The majority opinion
nevertheless appears to assume that Reilly had authorized
Berbillis to make the statement which appeared in the
radiotelegram Berbillis allegedly sent to Captain Fuentes.
However, apart from Fuentes' testimony that "Reilly told him that
. . . Kimon Berbillis would give him [Fuentes] instructions," see
Majority Typescript at 36, the majority points to no evidence
establishing that Berbillis was authorized by Reilly to send any
radiotelegram to Captain Fuentes pertaining to the ash. Nor does
the majority refer us to any evidence whatsoever that links
Reilly to Romo.
For the same reason that no agency relationship or
authorization appears in the proofs, the "statements" of the
coastal operators (i.e., time, date, and place of origin of the
radiotelegrams) and the "statements" of the Khian Sea radioman
(i.e., the recordation of the incoming hearsay) could not be
admitted as non-hearsay authorized admissions of Reilly pursuant
80
to Rule 801(d)(2)(C), although the majority holds otherwise. See
id. at 38.
In Carden, we cautioned district courts against
admitting declarations of unidentified persons into evidence. 850
F.2d at 1003. Here, the Government failed to establish the
identity of two groups of out-of-court declarants: (1) the
unidentified onshore declarants (alleged here but not proved to
be Reilly in Annapolis and Berbillis in Greece) who transmitted
messages to the coastal station operators; and (2) the
unidentified coastal station operators who in turn transmitted
those original messages in Morse Code and then added further
hearsay allegedly establishing the place of origin and the date
of the original message.
We also reiterated in Carden another well-established
rule of law: that the proponent of evidence bears a heavy burden
to satisfy trustworthiness requirements. Id. Significantly, the
district court in the instant case recognized the "risk that the
[onshore] sender may have been someone else other than Reilly."
R.supp.app. 1297. Yet, the Government never admitted any
evidence, except for the inadmissible documents, that Reilly
authored the statements in the radiotelegrams. Notwithstanding
that omission, the district court admitted the radiotelegrams
anyway, without offering any explanation or rationale for its
decision. The majority compounds that error with its tortured
hearsay analysis.
D.
81
The majority also fails to support its position that
the statements attributed to Reilly would be admissible as non-
hearsay, on the theory that those statements were not offered by
the Government to prove that their substance was either true or
false. The radiotelegrams were offered more than merely "'to
prove the fact that the certain instructions had been given,' . .
. and as circumstantial evidence of Reilly's state of mind,
namely his knowledge of the ash dumping operation," as the
majority holds. See Majority Typescript at 31. Regardless of
the distinctions sought to be drawn by the majority between
instructions and statements of fact, the "instructions" here,
even if relevant to the hearsay analysis, have extraordinary
hearsay implications. Compare Crawford v. Garnier, 719 F.2d
1317, 1323 (7th Cir. 1983) (affirming district court's admission
into evidence of nonparty's out-of-court instructions "which
carried no hearsay implications").
The "instructions" attributed to Reilly -- e.g.,
"ARRIVE COLOMBO . . . WITH ONLY 500 TONS BALLAST" and "DISPOSE
500 BALLAST PRIOR ARRIVAL SINGAPORE" -- are vastly different from
any of the instructions or orders in the cases cited by the
majority. See Majority Typescript at 31 (citing Anderson v.
United States, 417 U.S. 211, 220 n.8; Crawford, 719 F.2d at 1323;
United States v. Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert.
denied, 459 U.S. 972 (1982); United States v. Keane, 522 F.2d
534, 558 (7th Cir. 1975), cert. denied, 424 U.S. 976 (1976)).
None of the instructions in the Supreme Court case of Anderson,
or in the courts of appeals decisions in Crawford, Gibson, and
82
Keane, carried hearsay implications, and none was admitted in the
egregious context that these "instructions," if indeed one can
call them that, were admitted in the instant case.
Of even greater import, however, is the fact that the
messages, even if called instructions, were nevertheless made
known to the jury and could not have helped but influence the
jury because of their contents. The district court never
instructed the jury on how this evidence was to be considered;
hence, the jury was never told that it could consider the
messages attributed to Reilly only for the limited purpose of
establishing that certain instructions had been given and as
circumstantial evidence of Reilly's state of mind, and not as
direct proof of Reilly's guilt.
We have many times expressed our disapproval of any
admission of statements "which are not technically admitted for
the truth of the matter asserted, whenever the matter asserted,
without regard to its truth value, implies that the defendant is
guilty of the crime charged." McGlory, 968 F.2d at 332. There
is little doubt in my mind that the Government offered the
incoming radiotelegrams to Reilly to prove, by their contents,
that Reilly not only had ordered Captain Fuentes to dump the ash
in the ocean, but that Reilly also lied about the ash dumping
operation when he responded to questions at the contempt
proceeding and again before the federal grand jury. I do not
believe that our cases permit the admission of such
"circumstantial evidence" of guilt. See, e.g., United States v.
Reynolds, 715 F.2d 99, 103-04 (3d Cir. 1983) (holding statement
83
inadmissible because it was offered to "prove the truth of the
assumed fact of defendant's guilt implied by its content.").
The evil in the majority's opinion is that it distorts
established evidentiary jurisprudence in order to embrace the
Government's actions, actions which are not authorized by any
Rule of Evidence. To accept the majority's ruling as the law of
this court will affect not only Reilly; it will, in effect,
dismantle the hearsay provisions of the Federal Rules of
Evidence. Despite the attempts by the majority to cabin the
district court's ruling within the doctrines of Anderson and
McGlory, the majority's opinion eviscerates the very safeguards
that the hearsay rule and its limited exceptions were designed to
protect.
The messages attributed to Reilly should not, in any
event, be considered in the hearsay calculus. That is because
their admissibility is not independent of the radiotelegrams
themselves. Whatever the messages contained in the
radiotelegrams, the hearsay elements of the radiotelegrams which
involved the location and date of the radiotelegrams were never
satisfied by competent proof. The failure of the Government to
establish through the coastal station senders' testimony that
Reilly was the sender from Annapolis on the particular date
created the threshold hearsay problems, and the radiotelegrams
"linked" to Reilly only because of the location and date shown
could not, on this record, satisfy any exception to the hearsay
rule. See Fed. R. Evid. 805. The majority's attempt to overcome
this problem, in my view, never succeeds.
84
The majority, without testimony that Reilly sent the
radiotelegrams from Annapolis, seeks to gloss over this omission
by what it calls "circumstantial evidence." But what evidence is
disclosed in the record? None, because the coastal station
operator who could have testified as to who sent the dispatchs,
and from where and when they were sent, never testified at trial.
In other words, the majority would relieve the
Government from the requirements of Rule 805, and of the
foundational requirements of Rule 803(6), while at the same time
it disregards our own jurisprudence. I could not disagree more.
E.
The Government argues that "[e]ven if the
radiotelegrams were hearsay, they were properly admitted under
the exception for records of regularly conducted activity."
U.S.br. at 33. Despite this argument, the majority has now
acknowledged that, because the coastal station operators had not
testified to lay the foundation for the introduction into
evidence of their "statements" pursuant to the business records
exception of the hearsay rule, "the radiotelegrams were not
introduced as business records of the coastal sending station."
Majority Typescript at 33 n.14. The majority, apparently
concerned about the admissibility of the radiotelegrams allegedly
sent by Reilly and Berbillis, nonetheless finds support for their
admission in the business records exception to the hearsay rule,
Rule 803(6). See Majority Typescript at 38-40.
The requirements of Rule 803(6) can be shorthanded as
(1) knowledge, (2) contemporaneous recordation, (3) in the
85
regular course of business, (4) which requires such records
regularly to be kept. There can be no question that the four
foundational requirements of Rule 803(6), identified and
discussed by the majority ante at (Majority Typescript at
39), were not satisfied in the instant case.
Notwithstanding the testimony of the Khian Sea radio
operator, Carcamo, about his documenting of the incoming
radiotelegrams, those incoming radiotelegrams cannot satisfy the
requirements of Rule 803(6) because no "qualified witness" for
the coastal stations ever attested at trial that
(1) the declarants in the records had knowledge to make
accurate statements; (2) that the declarant[s] recorded
statements contemporaneously with the actions which
were the subject of the reports; (3) that the
declarant[s] made the record in the regular course of
the business activity; and (4) that such records were
regularly kept by the business.
Console, 13 F.3d at 657 (citations and internal quotations
omitted). Without this crucial testimony from the coastal
station operators, who were the intermediaries in the
transmissions between the onshore declarants and Carcamo, the
incoming radiotelegrams could not be admitted in evidence.
I therefore suggest that the majority's reliance on
Carcamo's testimony, see Majority Transcript at 40-41, is clearly
misplaced. As I point out below, Carcamo was in no position to
testify as to who the declarants were, the origin of the
radiotelegrams, or the date they were transmitted by the onshore
declarants. The fact that Carcamo may have kept files of these
86
messages cannot supply the foundational requirements that only
the coastal station operators could have furnished.
Rule 803(6) requires each person transmitting recorded
information to "verify the information provided, or [else] the
information transmitted [must meet] the requirements of another
hearsay exception, Fed.R.Evid. 805." Console, 13 F.3d at 657.
No coastal station operator ever verified the "statements"
contained in the radiotelegrams, and those "statements"
ultimately recorded by Carcamo onboard the Khian Sea were
inadmissible because they do not satisfy the requirements of any
other exception to the hearsay rule. See Fed. R. Evid. 805.
The principal precondition to admission of documents as
business records is that the records have sufficient indicia of
trustworthiness to be considered reliable. Fed. R. Evid. 803(6)
(authorizing admission of records of regularly conducted
activities "unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.")
(emphasis added). Here, the record reveals that the
precondition of trustworthiness was not satisfied. The only
evidence even remotely bearing on this issue was Carcamo's
testimony that he never had any complaints about the accuracy of
his translation of Morse Code. Carcamo did not, and could not,
testify about the accuracy of the coastal station operators'
translation of the original message into Morse Code and their
transmissions of those coded messages to the Khian Sea, let alone
concerning "the source of information," as required by Rule
803(6).
87
Indeed, the district court explicitly recognized that
"there may be significant transmission errors in particular
documents," R. supp. app. 1297-28, and the Government never
presented any evidence from the coastal station operators to
quell that concern. For this reason alone, the incoming
radiotelegrams themselves could not be admitted under the
business records exception to the hearsay rule. See United
States v. Nixon, 779 F.2d 126, 134 (2d Cir. 1985) (holding that
telex containing many inaccuracies failed to satisfy requirements
of Rule 803(6)).
F.
For all of the reasons which I have discussed -- i.e.,
no proof that the radiotelegrams were sent by or authorized by
Reilly, and no foundation for their admission under any exception
to the hearsay rule, including the business records exception --I
would hold that the 12 incoming radiotelegrams purportedly sent
to the Khian Sea by Reilly from Annapolis, the one radiotelegram
purportedly sent by Berbillis from Greece, and all statements
contained therein, were erroneously admitted into evidence by the
district court.
There is no question in my mind that the erroneous
admission of the 13 radiotelegrams was not harmless error. That
evidence was crucial to the Government's case against Reilly. It
alone corroborated Captain Fuentes' testimony that Reilly ordered
the Khian Sea crew to dump the ash in the ocean, and that Reilly
thus knew that the ash had been dumped in the ocean. Indeed, the
88
Government indicated to the jury that the radiotelegrams, and not
the testimony of Captain Fuentes, was "the" evidence against
Reilly. R.app. 1109.0
Because those 13 incoming radiotelegrams were
enormously prejudicial to Reilly, I would hold that it was
reversible error for the district court to admit them into
evidence. Accordingly, I would reverse Reilly's convictions on
all charges, and I would remand his case to the district court
for a new trial.
III.
I also believe that the majority errs in holding that
the predicate question forming the basis for Dowd's conviction
for knowingly making a false declaration before the federal grand
jury was not fatally ambiguous. Rather, I am convinced that a
reversal and a remand for dismissal of the false declaration
0
In his summation to the jury, the prosecutor urged: "Ladies
and gentlemen, look at the cables, this is the evidence." R.app.
1109. The prosecutor further argued that:
Captain Fuentes is not the key witness in this
case. All of the evidence is what I am asking and
I submit to you what you need to consider . . . .
Not anyone, not anyone could have filled those
cables out. When you read them, read through them
and see how they fit together very well. See how
they show what was going on at the time.
R.app. 1117-18. While acknowledging that the Government bore the
burden of proof at trial, the prosecutor also told the jury that,
"I guarantee you one thing, if [Reilly] had anything to say that
would have discredited those cables, [he] would have brought
them. . . . [Reilly] didn't bring them because the cables are
accurate." R.app. 1122.
89
charge against Dowd is required because the question which he is
alleged to have answered falsely is so fundamentally ambiguous
that it would be entirely unreasonable to expect that he
understood it. United States v. Ryan, 828 F.2d 1010, 1015 (3d
Cir. 1987); United States v. Slawik, 548 F.2d 75, 86 (3d Cir.
1977).
Before the federal grand jury, the following exchange
took place:
A GRAND JUROR: Do you know what happened to the ash?
[DOWD]: No.
A GRAND JUROR: You have no idea?
[DOWD]: No, I don't. I honestly have not been
on that ship for two and a half years. *
* *
A GRAND JUROR: Seeing how you had all this concern of
not being able to unload this ash, you
didn't ask anybody where it went:
[DOWD]: Who is there to ask?
A GRAND JUROR: I guess you could start with asking the
captain. He ought to know where it
went.
[DOWD]: They say -- he's a funny guy. The first
time I met him. Honduran person. He
said "The ash is gone." And I said --
A GRAND JUROR: Just said good, but you didn't ask where
it went? You didn't want to know where
it went?
[DOWD]: No, I didn't ask and I don't know. All
right? Nor did he tell me.
(D. app. 475-76 (emphasis added.)
At trial, the jury was asked to answer special
interrogatories with respect to the above-quoted testimony.
Specifically, it was asked to decide the truth or falsity of
Dowd's negative responses to each of the following distinct
questions:
(1) "Do you know what happened to the ash?"
90
(2) "You have no idea?"
(3) "[Y]ou didn't ask where it went? You didn't want
to know where it went?"
The jury acquitted Dowd of giving false testimony in
response to question (3); that is, the jury found that Dowd did
not ask where the ash went and did not want to know where the ash
went. The jury did not return a verdict on question (1); thus it
never decided whether Dowd answered falsely when he testified
before the grand jury that he did not know what happened to the
ash. With respect to question (2), the jury found that Dowd
violated 18 U.S.C. § 1623(a) by falsely stating, "No, I don't,"
in response to the question, "You have no idea?"
While I agree with the majority that a jury is
"generally free to determine the meaning the defendant ascribed
to a question," I cannot agree with the majority's conclusion
that the question "You have no idea?" is amenable to jury
interpretation. See Majority Typescript at 50. The Government
concedes that "if viewed in isolation, that question would be
fatally ambiguous." U.S. br. at 50. Unlike the majority,
however, I am not persuaded by the Government's argument that the
ambiguity issue can be resolved in its favor and against Dowd
because "'viewed in context, the question posed to Dowd was 'you
have no idea [what happened to the ash]?'" See Majority
Typescript at 49 (quoting U.S. br. at 51).
In my opinion, the question "You have no idea?" not
only is imprecise and vague, it is susceptible to at least two
possible meanings. That much is evident by the equally plausible
91
constructions urged by Dowd and by the Government. As the
Government argues, the question could be viewed as asking Dowd,
"Are you certain that you have no knowledge of what happened to
the ash?" Or, as Dowd contends, the question can be viewed as
asking whether Dowd had "any idea -- however far it may fall
short of actual knowledge -- concerning what happened to the
ash?" D. rp.br. at 3-4.
It is impossible to say that "'men of ordinary
intellect could agree'" about the meaning of the question, "You
have no idea?" See Ryan, 828 F.2d at 1015, 1017 (citations
omitted). That question can just as easily be understood to be
asking whether Dowd had any actual knowledge of what happened to
the ash, as it could be understood as asking Dowd whether he had
any idea whatsoever about what happened to the ash, as Dowd
contends.
Although the majority indicates otherwise, see majority
typescript at 49, the district court never rejected Dowd's
argument that the question, "You have no idea?" was fatally
ambiguous.0 To the contrary, in granting Dowd a stay of sentence
0
Before trial, the district court rejected Dowd's motion to
dismiss the false declaration count on the ground that it was
based on questions and answers too ambiguous or vague so as to be
legally insufficient to support a perjury conviction. In doing
so, the district court focused only on two of the three questions
later submitted to the jury: "Do you know what happened to the
ash?" and "[Y]ou didn't ask where it went? You didn't want to
know where it went?" United States v. Reilly, 811 F. Supp. 177,
180 (D. Del. 1993). The district court never even considered the
ambiguity of the question "You have no idea?" -- the only
question which Dowd was convicted of answering falsely. See id.
at 180-181.
92
pending appeal, the district court recognized that "there is a
substantial question about the ambiguity and the materiality of
the question and answer that was the subject of the perjury
conviction." R. app. 302. I, too, believe that there is a
substantial question about the ambiguity and materiality of the
predicate question, and I would hold that that question must be
resolved in favor of Dowd. See Ryan, 828 F.2d at 1015; Slawik,
548 F.2d at 86. I do not address materiality because the patent
ambiguity of the question to which Dowd responded obviates any
need to go beyond the issue of ambiguousness. Slawik, 548 F.2d
at 86.
Because of the inherent ambiguity of the question "You
have no idea," I do not believe that the jury should have been
allowed to consider Dowd's answer to that question as a possible
basis for conviction of the false swearing charge. See Ryan, 828
F.2d at 1017. Accordingly, I would reverse Dowd's conviction for
knowingly answering that question falsely before the grand jury,
and I would not even reach the issue Dowd raises concerning the
materiality of that question.
IV.
I again emphasize my concern that the majority's
unfortunate "hearsay" analysis, which results in sustaining
Reilly's conviction, will have ramifications that will extend far
beyond the confines of this appeal, so long as it remains the law
of this circuit.
For the reasons which I have expressed in the foregoing
opinion, I respectfully dissent from the majority's affirmance of
93
the judgments of conviction and sentence against both Reilly and
Dowd.
94