*1 America, STATES UNITED
v. REILLY, Appellant. P.
William America, STATES
UNITED DOWD, Appellant. Patrick
John 93-7673, 93-7684 93-7671
Nos. and 93-7694.
to 93-7686 Appeals, Court States Circuit.
Third 2,May 1994.
Argued July
Decided Rehearing Petitions
Sur
Aug. *4 Schiffer,
Lois J. Acting Gen., Atty. Asst. Stewart, Howard P. Steck, Christina E. pursuant jurisdiction subject matter Carol and J. (argued), C. Shilton David jurisdiction un- have § We 18 U.S.C. Washington, Justice, Dept, of Williams, U.S. and 18 U.S.C. § 1291 U.S.C. der 28 DC, appellee. for 3742(a). Randolph K. (argued), Tucker B. Marc respectively Reilly were Dowd Bou- Folt, Andre G. Herndon, V. Daniel Car- president Coastal and vice president Slate, & Meagher Skadden, Arps, chard, An- based which was Corporation, riers DE, William appellant for Flom, Wilmington, acted Carriers Coastal Maryland. napolis, Reilly. P. Shipping Amalgamated agent for an S. (argued), Lawrence Frey L. Andrew corporation whose Bahamas Corporation, E. Sullivan, Dorrann Robbins, J. John respectively, vice-president, president Platt, Washington, & Banks, Mayer, Brown Dowd, John Henry Cordes Robert Dowd. Patrick DC, John appellant Cordes father. Dowd’s Patrick in- corporations other of several president GARTH, Before: GREENBERG Navigation, and Romo MASCO, Lily cluding ROBRENO, District Judges, Circuit early John Corporation. Shipping Judge *. negoti- into Reilly entered *5 Dowd and Patrick Inc., Sons, a & Joseph Paolino with ations THE COURT OF OPINION Philadelphia, City of the with contractor Judge. GREENBERG, Circuit signing Amalgamated to Paolino leading Amal- on June a contract PROCEDURAL AND FACTUAL I. dispose of transport and agreed to gamated HISTORY city. by the produced residue ash incinerator a into Amalgamated entered Subsequently, History Factual A. Navigation Lily charter two-year time with con- judgments of appeal from is an This Sea. In the Khian Lily’s ships, for of one following entered and sentence viction approximately loaded Paolino August for Court District in the United States trial the holds into ash 13,500 tons of incinerator appellants The Delaware.1 of the District ship was docked the while of the Khian of Dowd, convicted who was Patrick are John Philadelphia. See U.S. Point at Girard under making a false declaration knowingly month, the Khi- Later that app. at P. 1623(a), and William § oath, 18 U.S.C. Bahamas for the Philadelphia an Sea left mak- knowingly of convicted Reilly, who was dispose Amalgamated intended where oath, 18 U.S.C. under ing false declarations Khian Sea However, before the ash. incinerator transporting 1623(a), § country denied Bahamas, that reached purpose for the States the United ash from dispose Amalgamated permission ocean, U.S.C. into dumping Sea then sailed the Khian Apparently, ash. 1411(a). against charges Dowd The year than a more for the Caribbean around a Delaware sources: from three Reilly arose sought. disposal site was while a knowingly alleging that indictment had not 1987, Amalgamated November before declarations material false made ash, ship was for yet a site found charging information Delaware jury; a grand Cortes, At Honduras. in Puerto violation; anchored dumping Reilly Sea left Khian captain point, Reilly alleging that Pennsylvania indictment Fuentes, a Arturo Reilly hired ship, and declarations material false knowingly made Cortes, to re- in Puerto captain who lived contempt during a court a district before to take Fuentes Reilly directed place him. Pennsylvania indictment hearing. off- Haiti, the ash would where ship to for Delaware the District of transferred Sea arrived Hai- After the loaded. court The district and trial. consolidation (1) * appendices follows: to the Robreno, We refer States C. Eduardo Honorable (2) appen- app.; appendix D. is Dowd's Pennsyl- Judge the Eastern District District appendix (3) government's app.; dix is R. vania, designation. sitting by way. ain similar briefs app. We refer U.S. ti, its crew began off-loading the ash but the A days few after the Khian Sea left the military Haitian interrupted authorities Bay, Delaware began its crew dumping the operation required the ship to leave. At ash into the Atlantic Ocean. dumping This time, more than half original ash continued weeks, for about two stopped but remained ship. on the when “all equipment broke down.” See app. R. at 855. During
Fuentes testified that then two-week period instruct- ship ed him to take Cay dumping, Ocean Fuentes and Reilly communicat- pick up Bahamas to a small bulldozer ed frequently. ealled a app. D. at 281-92. Sub- “bobcat.” app. See R. pick- 668-64. After sequently, July the Khian Sea ing up bulldozer, the Khian Sea went to in Bijela, docked Yugoslavia, for repairs. Pierce, Florida, Ft. where boarded the See at 856.2 ship, according Fuentes, promised Reilly wrote to the American Bureau of ship’s officers and crew compensa- additional Shipping to request ship be reclassi- begin dumping tion to the ash into the ocean fied inasmuch as it had lost its classification en while route to West Africa. Id. at 673-74. leaving after the Delaware Bay per- without The Khian left Ft. but Pierce before it However, mission.3 began August 17, 1988, on dumping, “AMALGAMATED AN- Bureau sent a NAPOLIS” sent letter to radiotelegram Fuentes a informing in- him structing him to that its surveyor “SUSPEND OPERA- could not examine the holds proceed TIONS” and Philadelphia. Id. at because “the vessel remains about half load- 679-80, 1189. Fuentes received another ra- cargo,” ed with U.S. diotelegram 27, 1988, February signed thus, the ship only was authorized to sail “AMALGAMATED” instructing him to *6 directly to completion Manila for of the re- “CALL 301 544 2909 AT 1900 TODAY.” Id. surveys, classification id. at 63. at phone 1192. The number was Reilly met with Fuentes in Yugoslavia, and number, phone home which Fuentes fre- (1) told him Berbillis, that: Kimon repre- a quently called to contact Reilly. Id. at 686. sentative of Shipping, Romo give would him The Khian Bay Sea entered Delaware on instructions regarding the remainder of the 1, 1988, March and Big anchored at Stone (2) trip; if country no agreed accept to the Beach. app. See D. at 71. ship the While remaining ash, it would dumped be in the there, was anchored Paolino and Coastal (3) ocean; they and would to refer the ash as negotiations Carriers in engaged regarding 299, “ballast.” app. See D. at 304-05. The disposal the However, of the they ash. could ship Yugoslavia left and transited the Suez not agreement reach an on price the for in September Canal 1988. Id. at 300-01. disposal. See app. U.S. at During 3-4. this Subsequently, Fuentes received a period, radiotele- Reilly boarded the Khian Sea several gram Berbillis, from times, stating that Fuentes according Fuentes, and to he and Reil- Colombo, should ly Lanka, arrive in Sri discussed the with execution of dumping the only plan ballast, “500 developed had TONS” in Ft. and that Pierce. Sub- sequently, Reilly would cable request- directed him information to he had Fuentes leave Atlantic, for the ed. and See R. app. the at 1214. day, Khian Sea left the The next Bay 22, May 1988, Delaware against on Fuentes received confirmation Annapo- from orders of the Coast Guard. lis app. ship D. at See should in arrive Colombo 278; app. 699-700, 854; R. 5, app. at U.S. at on tons board. at Id. 1215. In 239M0. instructions, accordance with these Fuentes ship 2. Yugoslavia, While the Lily was in opinion, "sold” we ship will refer to the as the Khian ship $10, cargo and Shipping to its Romo Sea. ship However, was renamed the Felicia. Lily and post had the Romo same office box in accept 3. ship Before a can cargoes, commercial Bahamas, and, Freeport, above, as noted both . it must certifying obtain a "classification” that it were headed app. Robert Cordes. See R. at seaworthy safely carry able certain Moreover, 1167. Coastal cargoes. Carriers continued to The-ship period- must be "reclassified” agent act as the ship. Throughout for the ically. app. our See at U.S. 34-35. a 1990, before Reilly appeared January remaining ash tons of dumped all but District Dela- jury for the grand federal 719-20. Id. at Ocean. Indian into potential ocean investigating that was ware 1988, received Fuentes October On with the connection dumping violations proceed directing him to radiotelegram Septem- between Khian Sea of the activities Colombo, at see id. of to Singapore, instead at 1988. Id. 285- December 1986 and ber a radio- he received 1216, and on October grand informed that Reilly was 403. the remain- dump directing him telegram of ash disposal investigating jury Prior to ash, id. tons ing 500 his was advised Sea and Reilly telefaxed Singapore, ship’s arrival He legal counsel. leave seek right to Shipping, Bureau American knowledge letter no he had testified then arrive would the Khian Sea stating that direct- had happened to ash what work.” completion of class Singapore ship. “for ash from anyone to remove ed ship arrived at 261. When the app. U.S. See at 376-81. cargo its Singapore November grand the same before appeared Dowd Fuentes, According to empty. holds app. at U.S. February See re- Singapore, ship in boarded Dowd Reilly, was informed he 405-95. Like dump- in the used gear that been moved investigation and jury’s grand scope 729-30, and told app. R. operation, ing that he did testified then rights. Dowd ship’s logbook with replace the Fuentes happened “any idea” what not have 322-25, app. logbook, see D. falsified D. Sea. See the Khian on board ash the ash had journalists inquiring tell country could not in a dumped been re- indictment an June On then revealed, The Khian at 320. id. charging of Delaware District turned reclassi- where was Shanghai, proceeded to violating 18 U.S.C. Reilly with Dowd left app. at 64. Fuentes U.S. fied. See 1623(a) making declara- false by knowingly of radiotele- taking copies point, ship at jury. R. grand the federal tions before with him. logs communication grams moved Dowd app. at 49-57. 665, 739. indictment, that it did claiming dismiss *7 elements essential adequately the allege History Procedural B. 1623(a) States violation. section of a (D.Del.1993). 177, 179 F.Supp. Reilly, Carriers, Coastal against filed suit Paolino indictment However, that the court held others, on June and and Amalgamated, clarity Dowd and alleged sufficient with for the District Court 1988,the United States be- false statements knowingly made Reilly a Pennsylvania issued Eastern District were jury, these statements grand fore defen- enjoining the injunction, preliminary investigation, jury’s grand to the material officers, agents from their dants, and their these false elicited questions that the ash without disposing of off-loading or ambiguous vague or not too were statements at least three with Paolino providing first 1623(a). under section support convictions place, proposed notice of days written 181. F.Supp. at The dis- disposal. manner, method was an indictment January hearing on De- On contempt trict court held Pennsyl- District Eastern returned if the defen- 15, 1988, to determine cember violating 18 U.S.C. Reilly charging vania injunction. preliminary had violated dants declara- 1623(a) making false knowingly oath, by § asked, under Reilly hearing, was At the R. hearing. contempt during tions knowledge ... “any as he whether January Finally, on app. at 62-66. residue” the incinerator happened to what District of in the filed information knowledge as an “any or the Khian board violating 33 Delaware, Reilly with charging ascer- be by might it means to the transporting knowingly 1411(a), by See U.S.C. residue.” to the happened what tained transported material causing be “[n]o, sir” Reilly responded app. at 275. U.S. dump- purpose for the United States questions. to both ing it into ocean app. waters. R. ‘adopted’ by at 58-61. Reilly.” Mr. br. at 37- The two indictments and the Thus, information Reilly argues that the district were consolidated the District of Dela- court either failed to exercise its discretion trial, Reilly ware. Prior to Dowd and unsuc- or abused its discretion admitting the cessfully disqualify prosecutor moved to radiotelegrams Reilly’s as admissions. Id. at from prosecuting the case because he had Reilly argues government called them as witnesses before the Delaware should “estopped” from asserting “that grand jury. Reilly, United States v. Crim. only a few of the radiotelegrams were sent 92-53-JJF, 93-8-JJF, Nos. 93-10-JJF, by Reilly” and that most of the radiotele- (D.Del. Memorandum Opinion May at 9 grams “were introduced to show the 1993). Following May trial from 17 to circumstances in which the few radiotele- 3, 1993, Reilly June of two convicted grams Reilly from Mr. sent,” were see R. counts of making false declarations and one reply 12-13, br. at because it did not make count of dumping, and Dowd was convicted argument this court, to the district id. at 11. of one making count of a false declaration. The government argues that it did not attempt to authenticate all of the 35 radio- II. DISCUSSION telegrams admissions and that the A. radiotelegrams Were the authenticat- district court did not admit the radiotele- 'properly? ed grams on this basis. U.S. br. at 18-19. The government maintains that although The intro- communicated with duced some of the radiotelegrams by radiotelegram locations on shore to “show Reilly knew about district court admitted into directed 35 of the dumping [ojthers ocean[,] the ash radiotelegrams into the allegedly had been sent ... [were not sent from or received received Khian Sea and] between were introduced because December 1987 and December interrelate 1988. See R. with the incriminating radiotelegrams, at 1189-94, 1198-1209, 1212-21, 1226-32. estab- lishing the factual context showing gen- district court evidentiary based its deci erally that in part testifying sion Fuentes was accurately on its conclusion that there was as to timing “sufficient substance of circumstantial various evidence” to indi events.” Id. at According cate 19-20. radiotelegrams were what government, government the district court claimed. See concluded that U.S. all of challenges had been authen- determination in this ticated properly appeal. based on “We “the detailed testi- review the district rul court’s mony of Fuentes ing proper as to authentication for abuse of discretion.” communications between McGlory, United States v. *8 — him, (3d subject 309, Cir.), the matter denied, F.2d 328 of the cert. radiotele- U.S. grams, -, timing their (1992).4 and 113 interconnection S.Ct. 121 with L.Ed.2d 339 other, each their undisputed connection with Reilly argues that the district court admit- phone evidence of calls between and ted all of radiotelegrams the 35 into evidence Fuentes, Reilly’s and own admission that he “on a wholesale Reilly’s as basis Mr. admis- captain communicated with by Fuentes cable sions, irrespective very of the substantial dif- phone.” and Id. at 18. among them, ferences irrespective of the fact that most of indisputably them that, were sent or We conclude contrary Reilly’s alle- by received people other than Reilly[,] gations, Mr. government attempt not did ... irrespective and of the fact all of radiotelegrams authenticate the 35 as government did attempt not even Reilly’s demon- admissions. See at 123-29 strate, (Memorandum much less succeed in demonstrating, of the in Sup- United States how each radiotelegram was port ‘authored’ of the Admission of Certain Cables and government Neither nor Thus, distin- evidence introduced later in trial. we guishes between the evidence before the district review of the all evidence relevant authentici- court at the time radiotelegrams it ruled that the ty- authenticity satisfied requirement
1404 Sea). characteristics, conjunction More- five taken the Khian Records of Other 901(b)(4). Thus, circumstances,” is over, although “[i]t court focused on Rule the district message radiotelegrams a clear that the connection between between connections written) (either its citing evi- oral or and source Reilly when the circumstantial authenticity, do not believe circumstantial evidence.” their we established dence of Addonizio, all of the 35 F.2d 71 district court admitted v. 451 that the United States (3d denied, Cir.1971), We radiotelegrams as admissions.5 92 cert. 405 U.S. (1972). Moreover, on fact 18 this conclusion 812 base 30 L.Ed.2d S.Ct. into evidence 35 admitted “[a]ny items of evidence illus combination of Sea, 901(b) to the the Khian not long were sent ... so Rule will suffice trated from radio- 901(a) the fact that certain Rule is satisfied.” 5 Weinstein’s as ¶ 901(b)(1)[01] are communications between telegrams Finally, at 901-32. Evidence parties associated with Khian Sea proof is burden of for authentication “[t]he Republic Reilly, including the Consul of v. slight.” Link North Mercedes-Benz of the United States Coast of Honduras and America, Inc., Cir. of Thus, the evidence we review 1986) Guard. McQueeney (quoting Wilmington authenticity light. in this (3d Cir.1985)). Co., Trust 779 F.2d explained have We 901(a) re- states that “[t]he Fed.R.Evid.
quirement
authenticity
of
or identification
showing
par
authentication
not on a
“the
is
admissibility is
precedent
rules,
as
a condition
evidentiary
such
with more technical
support
a
sufficient
satisfied
evidence
hearsay exceptions, governing
admissi-
its
question
what
finding
Rather,
that the matter
bility.
only prima
a
there need be
901(a)
pre-
“Rule
treats
proponent
court,
claims.”
showing,
authenticity,
facie
liminary questions of
authentication
argument
admissibility.
anot
full
Once
rele-
matters of conditional
identification as
made,
prima
facie case is
according
of Rule
vance
standards
jury
goes
it is
who will
104(b).
must be
The condition
fact which
authenticity
ultimately determine the
by every
proof
is wheth-
fulfilled
offer
real
evidence,
not the court. The
re-
proponent
what its
claims.”
er the evidence is
quirement is that there has
substan-
been
Berger,
Margaret
B.
&
A.
5 Jack Weinstein
they could
tial evidence from which
infer
¶ 901(a)[01] at 901-15
Weinstein’s Evidence
that the document was authentic.’
(1993).
Link,
McGlory,
(quoting
bative.”)- “301 544 to call instructing Fuentes sage the radiotele- of Second, appearance number, see R. phone 2909,” Reilly’s home they that conclusion supports the also grams Sea re- the Khian Before 1192.8 app. at forms typed are They are authentic. “MASCO,” signed radiotelegrams ceived ELECTRON- “SAIT bearing the letterhead “AMAL- signed radiotelegram it received “RADIOTELEGRAM.” the label and ICS” CORPORATION” SHIPPING GAMATED the 35 above, of each Moreover, we noted AMALGAM- REPLY stating “PLEASE and bears into evidence radiotelegrams admitted BA- FREEPORT MASCO ATED CARE OF loca- “HCA”, initials, in either Carcamo’s Furthermore, ra- id. at HAMAS,” 1201. party name for designated tion and dated signed “MASCO” diotelegram the location radiotelegram or sending the DAY- NOT CALL 18,1988, “DO stated June radio- receiving party for designated numbers primary The Id. at 1205. TIME.” and regularity, specificity, “The telegram. purposes for business Fuentes called that increase the documents of appearance official unsigned radio- Finally, the Reilly’s. were Id. being authentic.” of their the likelihood included Annapolis from telegram sent omitted). (citations [sic] ROMO message “COMFROM following ... [radiotele- Third, of contents “the CORPORATION CARRIERS COASTAL to their authen- support claim to tend grams] 205654 RCA MARYLAND ANNAPOLIS Reilly. id., many them to linking ticity,” containing the Coastal 7108678557” OR T/X that evidence radiotelegrams 18 Of the Id. at 1218. number. telex Carriers Sea, were sent Khian three by the sent were radiotelegrams outgoing 17 radio- Khian Annapolis, logs and Sea’s to The origi- by the Khian support the calls phone received and telegrams 1186- app. at See R. radiotele- Annapolis. sent nated in that conclusion course, the site was Annapolis, because Annapolis, originating 1232. grams where office that Carriers the Coastal Fuentes’s are consistent with Moreover, three di- taking and reporting worked. he was Khian Annapolis from sent and telex. telephone in evidence from him via rections at number Reilly’s course, telex is, impor- Sea were sent logs considering 1200, 1209, 1232.7 at Carriers. far more Coastal that there are recognize tant admitted than were listed that radiotelegrams in evidence theOf covering December log The into evidence. origi Khian Sea received were that February 1988 indicates through signed “CO- were Annapolis, three nated the Khian sent radiotelegrams were 1220, ten 1215, 1216, one id. ALCOAST,” at at Coastal Reilly’s office the telex signed Sea 1218, were unsigned, id. at five was The Id. at 1186-88.9 Annapolis. ANNAPOLIS,” Carriers “AMALGAMATED July 1988 through May covering 1193, log 1189, 1192, “AMALGAMATED," id. radio- sent four the “MASCO,” that indicates signed were 1199, 1207, three 1195, Annapolis, id. telegrams 1205, Reilly testified 1206. id. phone calls five made for Fuentes “callback” was “COALCOAST” phone calls four number phone home he at which Carriers, company Coastal number, id. at 1196-97.10 Reilly’s office 194. app. at See U.S. president. vice through Octo- September covering log represented Moreover, Carriers Coastal app. at See 7108678557. for telex number undisputed 7. is It 1218. See R. was 7108678557. Carriers Coastal above, undisputed Reil isit we 10. As noted It was 301-544-2909. phone phone num- Reilly's ly’s number home home undisputed that It phone numbers undisputed office at 17. U.S. is also was 301-544-2909. ber 301-268-9797, 301- Coastal Carriers for app. at U.S. 268-9798, 301-268-9799. above, undisputed it is we noted 9. As 19-20, Carriers Coastal number telex
1407
phone
messages
from the
identifies three
calls
contained
ber 1988
radiotele-
home,
Reilly’s
grams,
Sea to
and three to
way
in which
relate to
Finally,
Reilly’s office. Id. at 1210-11.
other,
each
to Fuentes’s conversations with
through
covering
1988
Decem-
log
November
Reilly, and to the
activities
the Khian Sea
indicates that the Khian Sea sent
ber 1988
link
radiotelegrams
to the 12
radiotelegrams
Reilly’s
to
office and that
two
Annapolis and one which Berbillis
to
sent
made to
home
phone
two
calls were
persuasive
Khian Sea from
A
Greece.
ex-
number.
Id.
and two to his office
number
ample of this circumstantial evidence is “the
1222-24.
series of
introduced as Govt.
Exhibit
and ...
to
relationship]
[their
Finally,
government argues,
as the
testimony Captain
and
doc-
Fuentes
other
messages
radiotelegrams and
in the
their
According
uments.” U.S.
br. at
to
other,
relationship to each
to
testi
Fuentes’s
Fuentes, Reilly told him to take directions
mony, and to
evidence indicate that
other
from Kimon Berbillis once the Khian
left
radiotelegrams originating in
sent the
Yugoslavia,
Hakim,
presi-
that Abdel
a vice
support
Annapolis
district court’s
dent
Shipping,
might
of Romo
him
send
conclusion that all
714, 723,
authenticity require messages,
evidence satisfied the
and that
at 24-81. A letter or
ment.
U.S. br.
“ballast” was to be
code
word for the
telegram “may
its con
be authenticated
on
incinerator ash
board the Khian
id.
physical
or
the aid of
tents with
without
Thus,
supports
719-21.
the record
if
letter
to con
characteristics
is shown
conclusion that
Berbillis
Hakim were
persons
tain information
than
other
acting
on
or
behalf
at his behest.
likely
possess.”
purported sender are not
714-17,
Id. at
723-24. Government Exhibit
Graham, Federal Practice
Procedure:
radiotelegram
69A is a
Fuentes sent
865-68;
Evidence
6825 at
see also United
29, 1988,
September
stating
Berbillis on
Console,
v.
States
13
661
Cir.
Suez,
ship
departed
and that “NO
1993) (“
telephone
‘a
or
document
conversa RADIO CONTACT
POSSIBLE WITH
WAS
tion
be shown to have emanated from a HAKIM,”
asking
Berbillis to “PLEASE
particular person
disclosing
by virtue of its
SEND
HOW
BAL-
[sic]
INSTRUCT
MUCH
knowledge
peculiarly
of facts known
to LAST
I
SHOULD ARRIVE WITH.” Id. at
him.’”) (quoting
advisory
Fed.R.Evid. 901
Fuentes
testified
Government
—
(4)),
denied,
cert.
committee note ex.
U.S.
radiotelegram
Exhibit 69B is the second
he
-,
(1994);
377
S.Ct.
L.Ed.2d
radiotelegram,
sent
to Berbillis.
In this
¶ 901(b)(4)[0i]
5 Weinstein’s Evidence
at Fuentes
for
asks
instructions
what
do
(“A letter,
example,
901-60
be shown
for
can
Colombo,
Lanka,
when
he arrives
Sri
particular person
to have emanated from
or
he
states that
had “NO
ON
SUCCESS
unlikely
that it
be
business
the fact
would
According
PHONE TO USA.” Id. at 1213.
anyone
purported
for
other than the
writer
Fuentes,
person
trying
he was
subject
familiar
its
matter
Reilly.
reach in the “USA”
at 717.
content.”). “Although
pre
we do
know
cisely
many people
how
had the information
Moreover, Government Exhibit 69C is
evidence,
proffered
contained
we sus
reply
request
in
Berbillis’s
to Fuentes’s
above,
pect,
noted
the number is
structions,
states,
“PLEASE DELAY
Therefore,
small.
the nature of the informa
YOU ETA UNTIL
NOON OCTOBER
supports
tion in the documents further
their
STOP TRY ARRIVE
IN
WITH
TONS
authenticity.” McQueeney Wilmington
ONEHOLD STOP REILLY WILL CABLE
Co.,
Moreover,
Trust
with ships during B. Did dumping oper- radiotelegrams constitute in- ation, and that hearsay? Khian admissible Sea remained contact with Annapolis. See R. at 837- Fed.R.Evid. 801 hearsay defines as a 38. It is “upon well-established consid- “statement other than one made a declar whole, eration of the evidence as a if a suffi- ant testifying while at the trial hearing, or cient foundation has been laid in support of offered prove in evidence to the truth of the introduction, contradictory goes matter Hearsay asserted.” generally inad weight assigned by to be trier fact missible because admissibility.” Graham, and not to Federal Practice and § Procedure: Evidence 6821 at ‘the inherently statement is untrustworthy: (citation omitted); 5 Weinstein’s Evi- the declarant not have been under ¶ 901(a)[01] (“The dence at 901-17 statement, issue of oath at the time of the or credibility probative force is for credibility trial, her cannot be evaluated at jury.”). or he she cannot be cross-examined.’ August 11. On the American Bureau of 12. These should not be confused 17, 1988, Shipping Reilly informing sent a letter to him with four the Khian Sea sent surveyor that its not conduct could the examina- to Athens. required tion for reclassification of the because "the vessel remains about loaded half cargo,” see U.S. at Graham, hearsay,” not something are ... Console, at 656 13 F.3d v. States United Evidence Pelullo, F.2d and Procedure: Practice Federal v. States (quoting United plena- Cir.1992)). not exercise are declara “We because 6705 at interpreta- court’s capable district ry over are review fact and therefore tions of but of Evidence Rules Federal Gamier, tion false, v. being true Crawford inter- permissible on a ruling based review (7th Cir.1983), States 1317, 1323 of discretion.” rule for abuse of a pretation (6th Cir.), Gibson, 833-34 *14 omitted). (citations Console, 656 at 13 F.3d 305, 972, 74 denied, 103 S.Ct. 459 U.S. cert. in- the that Reilly’s contention accept We Keane, (1982), States 285 L.Ed.2d the Khian radiotelegrams coming denied, (7th Cir.1975), cert. 534, 558 “state- out-of-court of three product the were 1481, 746 L.Ed.2d 976, 47 96 S.Ct. 424 U.S. (1) statement sender’s ments”: (1976). (2) sta- the coastal operator, station coastal in Morse message of the transmission tion’s messages argues, the government As the (3) Carcamo’s to the Khian code of the truth prove the offered “were not R. br. message. See documenting of them, in- within but contained statements that, “[h]earsay in- provides 805 Rule in- that the certain fact prove the stead to under not excluded hearsay is within cluded 32; U.S. br. given,” see had been structions combined part of the if hearsay each rule States, 220 U.S. 417 v. United Anderson exception to the an conforms statements 20 41 L.Ed.2d 2260 n. 8, 94 S.Ct. n. How- Fed.R.Evid. 805. See hearsay rule.” of evidence (1974), and as circumstantial “state- of these ever, Reilly argues each knowledge mind, namely his of Reilly’s state hearsay and inadmissible constitutes ments” 4 operation, Weinstein’s dumping of the ash its court abused district therefore (“[a] ¶ 801(c)[01] state- at 801-103 Evidence incoming radio- admitting by discretion of the of mind the state to show ment offered at 43-48. R. br. evidence. telegrams into hearsay if the analytically not declarant disagree. We state of directly assert the not does declarant of the that each indicates review Our issue.”). of the Although one is in mind that 17 in 13 of the reflected “statements” three Reilly’s phone messages included incoming evidence, the 12 radiotelegrams incoming included number, another R. from Berbillis the one name, a third included id. at state The initial Greece, admissible. Carriers, id at Coastal number the telex incoming radiotele in the ment reflected con- messages do not these three even to a by the sender grams, the statement they were offered hearsay, because several stitute consists of operator, station coastal (2) (1) radio- message; evidence circumstantial as components: destination; and its An- origin originating in point of telegram’s radiotelegrams sent the radiotelegram (3) (doc- on which the date at 333 McGlory, 968 F.2d napolis. See operator. station in to the coastal was handed by hearsay virtue did not constitute uments in messages contained of the None the defen- they contained fact that hearsay be constitute radiotelegrams coming phone num- names and the dant’s name largely instructions they consist cause individuals, “of- other bers (Govt.Exh. 1189 app. at Fuentes. evidence merely as circumstantial fered (Govt.Exh. 67D), (Govt.Exh. 1193 67A), 1192 other with the association” ... [defendant’s] (Govt.Exh. 68B), (Govt.Exh. 1201 67E), 1199 individuals). Thus, component first (Govt.Exh. 68E), (Govt.Exh. 1203 68D), 1202 a coastal by the sender the statements (Govt.Exh. 68H), (Govt.Exh. 1206 68F), 1205 to as we refer operator, station (Govt.Exh. 68J), (Govt.Exh. 681), 1207 hearsay. constitute did not “messages,” (Govt.Exh. (Govt.Exh. 69D), 1216 69C), 1215 signatures on Similarly, typed (Govt.Exh. 69G), (Govt.Exh. 69E), 1218 Annapolis did originating in (Govt.Exh. 70A), (GovtExh. 691), 1226 offered they were hearsay as constitute to do 70C). an individual “Instructions only as circumstantial evidence that point the ra- origin and destination of the diotelegrams by Reilly.13 were sent radiotelegram, and the date on which the radiotelegram
However,
was sent were
components
pur-
admissible
other
by
statements
suant
Federal
sender
coastal sta
Rule
of Evidence
operator, namely
point
tion
801(d)(2)(A).
of origin
801(d)(2)(A)
Rule
provides that
destination of
radiotelegram,
each
by
statements made
party
to an action and
sent,
date on
radiotelegram
which each
offered into
opposing
an
party
truth, i.e.,
prove
were introduced to
their
do not
hearsay.
constitute
As we discussed
prove
were sent
above, there is substantial evidence indicat-
point
origin
from the
to the destination on ing
sent the 12 radiotelegrams
designated
date. We consider
infor
originating in Annapolis.15 Annapolis was
mation to be
statements made
the sender
the site of the Coastal Carriers office where
relayed
and then
oper
the coastal station
Reilly worked, and the contents of these 12
ator because the sender’s verbal and nonver
radiotelegrams, combined with other circum-
*15
filing
bal conduct in
radiotelegram
a
at a
stantial evidence and
testimony
Fuentes’s
in-
particular coastal station
particular
on a
date
they
dicate that
were sent
Reilly.
designated
for transmission to a
location in
tentionally communicated each of these facts
In
to
addition
the circumstantial evidence
the coastal
operator
to
station
for transmis
discussed,
we
already
have
relationship
the
effect,
In
sion.
the sender told
operator
the
between
three
meetings
sets
with
these facts so the operator could tell them to Fuentes
and certain radiotelegrams
the Khian Sea.14
Fuentes
subsequent
received
to these meet-
ings
12 radiotelegrams
the
indicates that
originating
radiotelegrams
the
origi-
Annapolis,
in
“statements” regarding
nating
these
Annapolis
in
by Reilly.16
were sent
typed signatures actually
If the
"Reilly,”
equate
read
showings
13.
authenticity
the
for
and admis-
they
then
would have been offered
sibility,
for
truth
the
but because the
quantity
substantial
However,
of the matter asserted.
as we discuss
linking Reilly
radiotelegrams
to these
below,
radiotelegrams
such
have
would
ad-
been
only
"slight"
not
showing
satisfies
the
required
missible, nonetheless, as admissions. See Fed.
authenticity,
for
greater
but also
showing
the
801(d)(2)(A).
typed signature
R.Evid.
The
“Ki-
required
admissibility.
for
mon,"
see
radiotelegram
R.
at
on the
government
claims is from Kimon Ber-
16. The
“hearsay
dissent contends
analy
that our
billis, is
on this
admissible
basis.
Fed.
See
fundamentally
sis is
prem
flawed because it is
801(d)(2)(C).
R.Evid.
ised
assumption
that the 12 radiotele-
grams allegedly
by Reilly originated
sent
in An
government
If the
had called a coastal station
napolis,
Yet,
Reilly
where
lived and worked....
witness,
operator
operator
as a
and the
had
evidence,
Government never adduced
regarding
receipt
testified
and transmission
apart
disputed
themselves,
from the
documents
messages
laid the
foundation for messages
contained in the radiotele-
introduction of his
pursuant
or her "statements”
grams
actually originated
Annapolis.”
in
to
exception
the business
hearsay
records
to the
all,
at
hearsay
dissent
1427. First of
our
rule, we
complex
would not need to take such a
analysis
premised solely
is not
on the evidence
layered approach
components
these
to
radiotelegrams originated
that 12 of the
in An
radiotelegrams.
operator
But inasmuch as the
napolis.
radiotelegrams
Evidence that
these
operators
testify
did not
and the radiotele-
originated
Annapolis
in
many
one of
grams were not introduced as business records
pieces
linking
of evidence
these 12 radiotele-
station,
sending
of the coastal
complex lay-
our
grams Reilly.
pieces
to
Other
of evidence includ
approach
hearsay
ered
analysis
to the
is neces-
ed
testimony,
maj.
Fuentes’s
see
at
sary.
messages
typed signatures
contained in the
1405-06,
radiotelegrams,
15. "effectively
dissent
that we
maintains
id. at
the Khian Sea’s
impermissibly equated
logs
outgoing
evidentiary
radiotelegrams
phone
our
rules
calls
governing admissibility
slight showing
with the
testimony
which corroborate Fuentes’s
that he
required
1406-07,
taking
Reilly,
authentication.”
dissent
directions from
id. at
rely
It is true
we
Reilly's
on the evidence
that he communicated with
admission
linking Reilly
radiotelegrams
originat-
radiotelegram,
id. at
ing
Annapolis
radiotelegram
from
Clare Dobbins's
that she witnessed
radiotelegrams’s
Berbillis both as
evidence of the
radiotelegrams
receive
from the Khian
authenticity
Sea, id.,
and as evidence that the statements
relationship
and the
between the mes
contained in the
sages
do not
radiotelegrams,
constitute
testimony,
Fuentes's
so, however,
hearsay. We
do
we
because
timing
activities of the Khian
and the
by Berbillis
from Greece
Pierce,
sent
diotelegram
Ft.
Fuentes
with
First, Reilly met
with
Lanka
arrive in Sri
instructing him to
Fuentes, promised
according to
Florida, and
(the
incoming
13th
tons of ballast
only 500
addi-
crew members
ship’s officers
statements),
admissible
radiotelegram with
dumping the
begin
compensation
tional
originat-
radiotelegram
Africa. Subse-
to West
route
while en
ash
instruc-
confirming these
Annapolis
ing in
received
meeting, Fuentes
to this
quent
radiotelegram from
tions,
another
id. at
Annapolis,
three
Sing-
proceed
instructing
him
Annapolis
OPERA-
instructing him “SUSPEND
first
Lanka,
id. at
of Sri
apore instead
see R.
Philadelphia,
return
TIONS”
Annapolis instruct-
radiotelegram from
third
instructing him
1189, the second
app. at
tons
remaining 500
dispose of the
ing him to
1192, Reilly’s
2909,”
home
id.
“301 544
call
Singapore,
arriving in
before
containing in-
of “BALLAST”
number,
third
phone
radiotelegram with
1218, and a fourth
id.
ship’s arrival
regarding
structions
ship’s
arrival
regarding
instructions
at 1193.
Philadelphia, id.
Thus, the relation-
at 1220.
Singapore, id.
Philadelphia,
ship returned
Once
testimony regarding
Fuentes’s
ship between
according
again, and
Fuentes
met
Reilly and
meetings with
of his
the substance
Fuentes,
execution
discussed
that Fuentes
messages
the content
developed. Sub-
they had
dumping plan
meetings with
following his
received
ship had
meeting, after the
to this
sequent
originating
messages
confirms that
radio-
received
Philadelphia, Fuentes
left
*16
Reilly.
from
Annapolis were
instructing him to
Annapolis
from
telegram
Verde, away from the
Cape
toward
proceed
originating in Greece
radiotelegram
was ac-
the “MISSION”
until
States
“KIMON,” Berbil-
signature
typed
the
bore
1199, along
other
with
at
id.
complished,
testi-
Fuentes’s
Id. at 1214.
first name.
lis’s
on
containing instructions
radiotelegrams
Berbillis
contact with
mony regarding his
1205, 1206,
id. at
proceed,
to
how
radiotelegram
confirms that
dump-
Fuentes,
began
crew
According to
Reilly
autho-
Berbillis,
indicates
and
con-
and
Atlantic Ocean
into the
ing the ash
con-
“statements”
make the
to
rized Berbillis
developed with
problems
so until
do
tinued to
In
to Fuentes.
radiotelegram
tained
at which
they
using,
machinery
were
Fuentes, Reilly introduced
fact, according to
Reilly
radiotelegram to
sent a
point, Fuentes
him to
told
specifically
him to Berbillis
remained
tons of “CARGO”
stating that 3500
ship
once
from Berbillis
instructions
take
to
board,
equipment needed
and that the
on
714-17, 723-24.17
Id. at
Yugoslavia.
left
at 1209.
ash had broken.
off-load
801(d)(2)(C) specifically ex
“Rule
Reilly in which
Finally,
place
the third
hearsay any
of
the definition
cludes from
Yugoslavia.
Bijela,
met was
Fuentes
party which were
against a
used
Reilly
meeting,
statements
at this
testified that
Fuentes
by the
person authorized
by
made
another
(1)
give
would
Berbillis
that:
Kimon
told him
concerning the
party to
statement
make
of
the remainder
regarding
him instructions
Lube, Inc. Witco
subject.” Lightning
accept
(2)
to
country agreed
if no
trip;
Cir.1993).
1153, 1198
Corp., 4 F.3d
in the
ash,
dumped
would be
remaining
indicating that
light of the
(3)
as
refer
the ash
ocean;
they
would
send instructions
Berbillis
authorized
Fol-
at
304-05.
D.
See
“ballast.”
behalf,
made
the statements
Fuentes on
a ra-
meeting, Fuentes received
lowing this
proof
is no ...
Fuentes,
"there
states that
17. The
meetings
id. at
dissent
with
sets of
three
acting
all,
'was
1407-1409,
...
the "doc-
Second of
Berbillis
to establish
”
only evidence
dissent
are not
themselves”
at his behest.’
uments
of
or
behalf
radiotelegrams originated in
indicating
However,
Fuentes's
we find
outgo-
relationship
between
Annapolis. The
relationship between
to establish the
sufficient
Annapolis, and
radiotelegrams
calls
ing
Berbillis.
indicating
telegrams
radio
the 12
Annapolis" also indicates
in at
"handed
fact,
were,
sent from
these
Annapolis.
by
operator,
telegrams,
to a coastal
hearsay.
BerbiUis
station
does not constitute
Id.18
Moreover,
pursuant
are admissible
documenting
Carcamo’s
of the in
801(d)(2)(C).
Graham,
coming radiotelegrams
Rule
Federal
would
admis
803(6),
Practice and Procedure: Evidence
under
exception
sible
Rule
for
(“Authorization to make a
503-04
statement
of regularly
records
conducted business. See
subject
concerning the
matter
... be
exception
U.S. br.
33. This
authorizes the
by
or
the acts
conduct of the
established
admission of:
principal
agent
his statements to the
or
or
memoranda,
record,
report,
[a]
or data
Michaels,
party.”);
third
see also Michaels v.
form,
acts,
eompüation,
events,
(7th Cir.1985)
(held
conditions, opinions,
diagnoses,
or
made at
party
potential
telexes sent
a third
by,
or near the time
or from information
company
buyers of defendant’s
were admissi
person
by,
transmitted
knowledge,
801(d)(2)(C)
ble
Rule
under
because “[view
kept
if
regularly
the course of a
conduct-
ing
light
most
the other evidence
activity,
ed business
and if
regu-
it was the
...
plaintiff,
[the defendant]
favorable to the
practice
lar
activity
that business
party]
[the
authorized ...
third
to act as the
memoranda, report, record,
make the
Company’s
... potential
broker and contact
eompüation,
data
all
shown
the testi-
denied,
buyers.”), cert.
474 U.S.
mony of
qualified
the custodian or other
(1986).
Thus, in
S.Ct.
namely
messages, the
re
“qualified”
lay
“statements”
Carcamo was a witness
803(6)
garding
point
origin
required by
destination
foundation
Rule
for the
radiotelegram,
each
re
“statements”
admission
because as
garding
operator
date on
each
radiotele-
the radio
for
he was
sent,
gram
responsible
creating
them,
were admissible.
storing
*17
abiUty
and had “the
to attest to the founda-
The second set of
re
“statements”
803(6).”
requirements
tional
of Rule
Con-
incoming radiotelegrams
flected in the
con
sole,
For the (quoting same the third Id. at 657 United States Cir.1989), denied, “statement” in the 12 reflected radiotele- 886 F.2d cert. by 1062, 110 grams ReiUy 878, 107 sent and the one from Ber- 493 U.S. L.Ed.2d 961 S.Ct. bUUs, (1990)). documenting of Carcamo’s the radio- proof radiotelegrams
18. The dissent contends that there is no
receive
from the Khian
and
Reilly
operators
that
authorized
station
to
coastal
plethora
of other
circumstantial
radiotelegrams or
transmit the
mo to decode and document the
See dissent
authorized Carca-
linking Reilly
to
more
than
radiotelegrams.
suffice
establish that
authorized the
opinion,
at
1429. In our
Fuentes’s
operators
play
station
and
coastal
Carcamo to
testimony, Reilly's
that
admission
he communi-
respective
in the
their
roles
transmission of the
by radiotelegram,
cated
with the
Clare
radiotelegrams.
Dobbins's
that she witnessed
indicated,
58;
805. As we have
four foundation
Fed.R.Evid.
Careamo testified
excep-
by Reilly
records
were admissible
requirements of the business
statements
801(d)(2)(A),
the radio
by testifying that: he was
tion
under Rule
statements
during the rele-
operator
by
operators
the Khicm Sea
for
and
coastal station
Berbillis
863;
time,
801(d)(2)(C).
at
period
see R.
vant
under Rule
admissible
contacting the coastal
responsible
he was
Thus,
did
the district court
not err
and
radiotele-
transmit
stations to receive
incoming radiotelegrams
admitting the
keeping
ship and for
records
grams for the
radiotelegram
by
or
sent
sent
ship,
id.
all communications
and
Berbillis, as each of the three “statements”
863-64;
transmit-
the coastal stations
in these
was not
reflected
code,
ship in Morse
id.
messages to the
ted
hearsay
excep-
under
or was admissible
an
866-67;
years
experience as
that he
hearsay
Although the dis-
tion to the
rule.
operator and
trained Morse
radio
admitting
trict court
have erred
code,
867-68; and
he decoded the
id. at
radiotelegrams into evi-
incoming
other four
signals, and documented the
Morse code
1226, 1228,
dence,
R.App. at
id.,
them,
messages
as he received
as soon
above,
indicated
such an error would
we
messages
and then
written
delivered
be harmless.
Fuentes,
kept
a file
at 867. Careamo
id.
messages.
incoming
outgoing
Moreover,
did
the district court also
testimony “satisfied
869. Carcamo’s
outgoing
admitting
not err
the 18
radio-
803(6)
requirements
Rule
the foundation
telegrams
ra-
outgoing
into evidence.
records
‘demonstrate[d]
because
(1)
diotelegrams consist of two “statements”:
radiotelegrams]
...
were made con-
[of the
(2)
Careamo,
statement
Fuentes’s
temporaneously with
act the documents
documenting of the
Carcamo’s
statement.
purported]
to record
someone
pursu
Fuentes’s statements were admissible
matter,
subject
knowledge
801(d)(1)
provides
ant
Rule
that a
business,
regular
were made in the
course
hearsay
is not
if
statement
regularly kept by
that such records were
subject
... and is
[t]he declarant testifies
Console,
489 petit Normally, for the it is cution.... States, 409 v. United Bronston cites the de- construction which jury to decide 601-02, 595, 361-62, 34 93 S.Ct. U.S. It is question.... placed on fendant argu his (1973), support of L.Ed.2d 568 which a point at to define difficult underlying his false questions that ment it is ambiguous that so question becomes excessively were convictions declaration interpretation. We jury not amenable distinguish However, Bronston vague. point is *when reached stated that have v. because, States United as we noted able expect that entirely unreasonable [is] it (3d Cir.1977), “Bron Slawik, 86 F.2d 548 question understood the defendant misleading literally but true ston involved Slawik, at 86. him.’ posed to 361-62, Bronston, 409 U.S. answers.” question is that ‘[a] said courts have Other 601-02, Court held Supreme 93 S.Ct. it “is not a fundamentally ambiguous when § statute, 18 U.S.C. perjury men of meaning about which a phrase with are literal apply not statements does agree, nor one could ordinary intellect an true, create if these statements ly even under- with mutual could be used which Supreme is false. implication which answerer standing questioner a equal applies in Bronston reasoning Court’s at the time were defined unless it were statute, section false declarations ly to the testimony.”’ sought and offered (To Slawik, violate F.2d at 83 1623. See 1623, testimony “both must be U.S.C. 1010, 1015 F.2d Ryan, v. States true, literally there If and material. false Cir.1987) (3d (quoting United States offense, defendant’s] if ... [the even was no Cir.1986)) Lights, 782 (citing misleading.”) deliberately answer omitted). (some ei- Under citations internal (1973)). Bronston, 93 S.Ct. 409 U.S. standard of the Bronston construction ther However, no resemblance case bears questions ambiguity, it is clear Bronston. ambiguous that not so were posed to jury inter- longer amenable they no prosecution perjury involved a were Bronston pretation. bankruptcy hearing at arising from him asked of the defendant’s creditors one indict- declarations D. Did false ac- bank had ever had Swiss
whether he
allege
falsity
adequately
ment
responded
stat-
count, and the defendant
jury
Reilly’s responses
grand
bank
had a Swiss
company
ing that
once
his
court?
the district
354, 93 S.Ct.
Id. at
six months.
account for
answer was
Though the defendant’s
at 598.
Reilly argues the indictments
implica-
the false
unresponsive and created
convictions
declaration
on which his false
bank
had a Swiss
had never
tion that he
defective because
based were
account,
regarding
statement
his literal
falsity of his
adequately the
allege
failed to
Id.
account was true.
company’s
bank
Swiss
grand
court
responses
district
Therefore,
Supreme Court concluded
have held
We
jury.
R. br.
perjury as
not be convicted
that he could
§ 1623
under 18 U.S.C.
“a conviction
“an-
not intend
criminalize
Congress did
fails to
the indictment
stand where
face but untrue
unresponsive on their
swers
alleged and
precise falsehood
set forth
”
implication.’
only by ‘negative
falsity with sufficient
of its
basis
factual
93 S.Ct. at
its
to determine
permit
clarity
judicial
meaningful
review
Reilly’s responses
classify
verity and to allow
*20
We cannot
jury as
those falsehoods.”
grand
materiality of
or to the
court
the district
Moreover,
undisputed that
Slawik,
“es-
It is
we have
F.2d at 83.
“literally
true.”
id.,
Reilly’s
Bronston,”
alleged that
indictment
reading
broad
the Delaware
chewed] a
be
jury were false
grand
the
responses to
held
that
Khian
on board the
knew the ash
cause he
rule,
is
fact that there
general
a
[a]s
in into the water
dumped
Sea had been
falsely
ambiguity in
answered
a
some
around the Indian Ocean. See R. br. at 57- Khian
government concedes,
and as the
basis,
58. On this
court
district
held that
specific
“there was no
averment in the ...
adequately alleged
indictment
Delaware
Wilmington
indictment that
had in fact
falsity Reilly’s
Reilly,
statements.
dumping.”
directed the
See U.S. br. at 49.
F.Supp.
Pennsylvania
at 179. The
indict- However,
Tonelli,
questions
unlike the
in
alleged
Reilly’s responses
ment
to the
grand jury’s question regarding whether
court
district
were false because he knew the Reilly directed the dumping of
quite
ash was
ash on board the
Sea had been
precise and
excerpted
was not
in the indict-
dumped into the water in and around the
in misleading
ment
a
Moreover,
manner.
we
Atlantic Ocean and Indian Ocean. We con-
see no
Reilly’s response
evidence that
to this
that both
clude
indictment and
Delaware
question
of the other
ques-
related
Pennsylvania
adequately
indictment
al-
“literally
tions was
Thus,
true.”
in
cir-
leged
falsity
statements.
cumstances, case,
indictment in un-
Reilly analogizes this case to United States
like the
indictment
adequately
Tonelli
Tonelli,
194, 198
Cir.1978),
specified “in what particular the defendant’s
which we held that a false declarations indict
reply
Tonelli,
was false.”
By identifying Reilly’s responses that he happened no idea what to the ash or how A you GRAND JUROR: Do know what it might happened be ascertained what happened to the ash? alleging ash and knew the ash had THE No. WITNESS: dumped ocean, been into the the indictments case, in this unlike the indictment A Tonelli GRAND JUROR: You have no idea? “set precise forth the alleged falsehood[s] No, THE I don’t. I WITNESS: honest- and the factual basis of ... falsity [their] ly have not ship been for two clarity permit sufficient years. half ... verity determine [their] and to allow meaningful judicial materiality review of the Slawik,
of those falsehoods.”
1418 the defendant ask, which construction No, I decide I didn’t THE WITNESS: v. question.” United States placed on he tell right? Nor did All know. don’t posed question The F.2d at 1015. Ryan, 828 me. Reilly, not so Dowd, posed to “is like those to D. See jury to it is not amenable ambiguous that interrogato- special to jury’s answers “ The ‘to it is because reasonable interpretation” guilty it found Dowd that ries indicate understood the defendant expect that in re- knowingly false declaration making a ” Slawik, F.2d at (quoting 548 question.’ no idea?” “You have question to the sponse 86). expressly instructed prosecutor The jury did not The app. at 234-35. See U.S. intended to questions were that Dowd re- respect to Dowd’s a verdict return knew, if he and that he what determine you know what question “[d]o sponse to the “just say something, he should didn’t know “not Dowd and found the ash?” happened to 439; app. at See U.S. ... don’t know.” [I] 1623(a) based violating 18 U.S.C. guilty” (“[i]f you know don’t id. 446 also “[y]ou didn’t question to the response on his know”). More- you don’t something, tell us know want to You didn’t it went? ask where that he was over, responses indicate Dowd’s Reilly, Dowd asserts Like it where went?”. his respond should based that he aware response to a was made his that statement knowledge, that he should define own support ambiguous to too question was ob- “knowledge” include information to own making false declaration. his conviction e.g., See speaking to others.19 tained argument and rejected this court The district no”), (“[t]o knowledge, 478-80 my at 453 id. F.Supp. at 181. Reilly, 811 so do we. (“A.... Singapore, repair work done in The in con argues, complete viewed because government Yugoslavia, wasn’t As “you survey [ble- to Dowd was ... text, question posed complete its could not vessel cargo.... A happened ash]?” in the ash [what have no cause there was idea you just say that the when the Dowd Did at 51. concedes U.S. br. GRAND JUROR: interpreted reasonably the ash on Yugoslavia be it still ship got to question “could preceding I I was restatement of wasn’t there. simply as a it? THE WITNESS: Yes.”). interpreta Okay. “[u]nder question,” and told that. essentially ...
tion, ‘[a]re asked question jury’s Second, re on the reliance Dowd’s happened know what you do not you certain inap interrogatories is special sponses to the However, D. br. at ash?’” See spe jury’s responses to the propriate. could question Dowd contends in to our interrogatories are immaterial cial “intelligent specula to call for construed be jury required not quiry because the tion,” responses jury’s that the id. at one of finding regarding more than make a that this interrogatories confirm special it responses, and allegedly false three Dowd’s at 20. it id. adopted, was the construction finding regarding Dowd’s make a not did “jury free to is not argues that He further questions first of the response to the three meanings of two attempt decipher which count. false statements identified v. (citing States accept,” id. at Moreover, States pointed out United as we (11th Cir. Manatpat, F.2d Cir.), Vastola, cert. v. 1991)). on other judgment granted and vacated 110 S.Ct. 497 U.S. grounds, question was not We conclude (1990), estoppel principles of do First, L.Ed.2d 744 is ambiguous.” “fundamentally single at a require the verdict rendered meaning the to determine the generally free Thus, conclude to be consistent. we we trial question. As to a defendant ascribed Dowd’s conviction question on which ambigu- that the above, there is “some when noted it. ambiguous support was not too petit jury to rests [formally, for the is ity[,] ... above, posed question we question conclude "You contends that the 19. The dissent ambiguous” “fatally because it was not "fatally ambiguous” because Dowd have no idea?" " expect under- that the defendant ‘to ambiguous reasonable fundamentally that it would so it "is " Ryan, 828 question.' United States expect stood entirely [Dowd] unreasonable (citation omitted). at 1015 As we stated it." Dissent understood
1419
response
F. Was Dowd’s
“material”?
mine
testimony
whether Dowd’s
was material
Slawik,
as a matter of law.
G. However, false as the app. at 334. See D. knew.” conviction? declaration out, reasonably points government state- earlier have Fuentes’s could found argues that if we construe Dowd his trial testi- not in conflict with ment was to mean “[y]ou have no question idea?” mony “Fuentes mentioned because hap you not what you certain do know “are predicate for dumping to Dowd ash?”, cannot pened to the conviction to tell the obtaining about what instructions insufficient because there was stand may what Fuentes have been press. This hap “actually ‘what indicating that knew he ” investigator he told the meant when he Thus, D. br. at 28. pened to ash.’ dump- ‘straight’ about not told Dowd had evi was insufficient claims that there Dowd Moreover, br. at ing.” See U.S. to sus falsity of his statement dence to the he had said clarified what Fuentes § 1623. conviction under U.S.C. tain his conversation investigator about his private Dowd, re Fuentes’s According to Dowd] by stating [he “[w]e Dowd with disposal of he discussed the garding whether it, I it, but did talk about we discuss self-contradictory. ash with Dowd app. at question.” D. straight make the argues Dowd also at 29-31. Id. Thus, that as a cannot conclude we in testimony regarding Dowd’s Fuentes’s testimony was self- law, Fuentes’s matter journalists that inquiring structions tell his earlier contradictory or that he retracted country whose left in a ash had been dump- having testimony about discussed create revealed identity could not be ing Dowd. Khian Sea log route taken false had knew the ash prove that Dowd does not testimony regard- Second, other Fuentes’s at 31-34. ocean. dumped been finding that jury’s supported the ing Dowd We con- dumping. knew sufficiency of Dowd about challenges to the review “We that, light most favorable in the viewed clude ascertain- presented at trial the evidence testimony that Fuentes’s government, whether, light in the viewing ing the evidence Singapore to ship in Dowd boarded a reason- government, favorable to most using to been gear that we had “pickup the guilty find the defendant mind could able 319-20, discharge ship,” in- id. at comment some instances be an in- journalists him to tell that the ash flammatory expression structed prosecutor’s per- discharged in an unidentified coun- been require reversal, sonal belief and here it does try pursuant agreement, an see U.S. Furthermore, prosecutor’s not. charac- D. and to create a false terization of Dowd’s and testimony as *24 documenting logbook “another route other lies referred to their grand statements at the been,” than the one we see id. at 324- have jury contempt proceedings, and when a 25, jury’s support finding is sufficient to the prosecutor contends that a defendant in a dumped that Dowd knew the ash had been in false declaration case lied in underlying the ocean. proceedings, merely arguing he that the that,
Finally, indicating supports there was evidence guilty. a verdict of Carriers, president as of Coastal Dowd
played an active role in the affairs of the
Reilly
Dowd and
also claim that the
Khicm Sea from the moment the ash was
prosecutor
improper
made other
statements
loaded,
supports
and this evidence also
during
closing argument.
his
According to
dump-
conclusion that Dowd knew about the
Dowd,
prosecutor’s
devastating”
“most
ing.
present
Dowd was
when the ash was misstatement of the record was his assertion
first
loaded onto the Khian
see U.S.
played
ordering
Dowd
a role in
Fuentes
app. at
knew some of it was off-loaded in
destroy
radiotelegrams.
D. br. at 35.
Haiti,
possible
id.
searched for
sites However,
object
Dowd did not
to this state
ash,
118-19,
discharge
remaining
id.
ment at trial and therefore “we
review
Singapore
in
ship
met the
where it was to be
plain
Pungitore,
error.”
910 F.2d at
longer
reclassified inasmuch as its holds no
above,
1125-26. As we discussed
there was
ash,
any
contained
and communicated with
indicating
substantial evidence
that Dowd
Overall,
Reilly
Singapore,
from
id. at 126.
dumping
knew about the
of the ash into the
falsity
the evidence of the
state-
Dowd’s
ocean, and Fuentes testified that Dowd in
happened
ment that he had “no idea” what
falsify
structed him
ship’s logs.
to"
Al
the ash is more than sufficient to sustain his
though
Reilly
Fuentes
testified
ordered
conviction under 18 U.S.C.
destroy
him
radiotelegrams,
see D.
327, 348,
app. at
he also testified that “[t]he
prosecutor
H.
improperly
Did the
offer owners didn’t
They
want them on board....
opinion
testimony
his
and unsworn
board,”
didn’t want them on
app.
see U.S.
during
closing argument?
added). Moreover,
(emphasis
the evi
Reilly argue
prosecutor
Dowd and
dence indicates that Dowd and
in
prejudiced
closing argument by
them his
Thus,
Singapore.
contact while Dowd was in
“lies,”
referring
to their
as
there
awas basis for the inference that Dowd
misstating
respects.
the record in several
participated in the decision to have Fuentes
34-37;
D. br. at
See
R. br. at 60-69. Dowd destroy
radiotelegrams.
any event,
In
Reilly unsuccessfully
argu-
raised their
if
even
the statement should not have been
regarding
impropriety
pros-
ments
made, we see no basis to conclude that
closing argument
ecutor’s
in motions for new gives
supportable
to a
“plain
rise
claim of
trials.
D.
at 42-43.
Like the dis-
light
error”
of the record as a whole. We
court,
reject
arguments.
trict
we
their
point
out that the district court’s instruc
jury
rely
tion to the
on their recollection of
prosecutor
While it is true that the
the facts and not counsel’s
Reilly’s testimony
statements and
referred
Dowd’s and
arguments
“lies,”
possible prejudice
cured
re
making
this characterization he was
fact,
sulting
pros
from the
guilty
comment.
merely
of misconduct because he
thing
making
a “fair
ecutor said the same
in his
comment on the evidence
Accordingly,
Pungi
adduced at trial.”
summation.
we conclude that
United States v.
tore,
(3d Cir.1990),
pros
we should not reverse
reason of the
cert.
denied,
500 U.S.
114 ecutor’s
that Dowd and
S.Ct.
statement
or
(1991). Thus, although
L.Ed.2d 98
destroy
radiotelegrams.
such a
dered Fuentes to
he would
part
on the contention
based
argue that
Dowd
The district
at trial.
by sug
an unsworn witness
be
the evidence
prosecutor misstated
him,
however,
disqualify
destroyed
court,
refused
they personally
gesting
would
challenge
prosecutor
they
stating that it assumed
Specifically,
documents.
destroyed
presentation
“very
careful
prosecutor’s contention
Reilly,
radiotelegrams associated
copies
United States
ease.”
their
Government’s
93-8-JJF,
Howev
92-53-JJF,
at 475.
D.
93-10-
Sea.
Nos.
Crim.
(D.Del.
evi
supported
May
er,
contention was
JJF,
Opinion
at 9
Memorandum
dence,
109).
Carri
including
(see
a letter
Coastal
1993)
Although the
app. at
stating that “no radio
grand jury
unfortunate,
ers to
of words was
prosecutor’s choice
Carriers’s
logs” were Coastal
logs
other
pronoun
use of
prosecutor’s isolated
*25
1264, and Fuentes’s
app.
R.
at
see
possession,
testimony
on
based
did not constitute
“we”
he re
the instructions
regarding
did not
at trial. He
not
evidence
adduced
destroy
falsify
ship’s log and
ceived
was
the defendant
say
or “I” knew what
“we”
Thus,
prosecutor
radiotelegrams.
“[ejverybody” knew
talking
He said
about.
from cer
drawing an inference
merely was
Consequent-
talking
“we” were
about.
what
record.
evidence
pieces
tain
merely
from
an inference
ly, the remark was
record,
does not
and thus
in the
prosecu
Reilly
argues
also
that
DiLoreto, 888
per se. See
require reversal
non-record evidence
based on
“testified”
tor
999;
Virgin Islands
at
F.2d
Government of
discussing
pronoun “we” when
by using the
Cir.1985).
343,
F.2d
Joseph, 770
testimony, by refer
allegedly false
Furthermore, reviewing
to deter-
the matter
as “shells”
Amalgamated and
ring
MASCO
prose-
prejudice
if there
from
mine
was
Dowd,
by stating that the
and
Reilly
for
words,
that “[u]n-
we conclude
use of
cutor’s
any
from
witnesses
not called
defendants had
light of the
and in
circumstances
der the
transmitting companies because
the radio
...,
...
guilt
believe
strong evidence of
we
at
R. br.
radiotelegrams were “accurate.”
cured
adequately
instructions
court’s]
[the
v. DiLore
Reilly cites United States
63-65.
arisen.”
Jo-
any
that
have
prejudice
(3d Cir.1989),
996,
for the
to,
seph, id. at 349.
“require re
remarks
proposition that these
DiLoreto,
“a
held that
per se.”
we
versal
for
prosecutor
faults the
also
the defen
regarding
prosecutor’s remarks
Amalgamated
MASCO as
referring
credibility, if based
a witness’
guilt or
dant’s
to conceal
by
and Dowd
“shells” used
trial, require
not adduced at
information
on
opera
dumping
with the
their involvement
conclude
per
Id. at 999. We
reversal
se.”
at
app.
R.
Khian
tion of the
per
require reversal
does not
that DiLoreto
However,
supports
record also
in this
se
case.
above, there is
As noted
this statement.
“we”
pronoun
prosecutor used
that
indicating
significant evidence
posed to the
questions
arguing that the
when
signed
Annapolis
sent
stated,
clear. He
defendants were
More
or “MASCO”.
“AMALGAMATED”
meant be-
those words
[y]ou
MASCO,
know what
secretary for
over, Cheryl Haye, a
are used
they are words that
cause
managed
up
set
that
testified
MASCO
Everybody
ordinary
conversation....
businesses,
not know of
did
that she
Every-
talking about.
were
knew what we
Annapolis,
at
office in
id.
MASCO
talking about
were
body knew what
the same
Amalgamated shared
MASCO
They
Philadelphia.
were
hearing
Bahamas, id. at
in the
post office box
talking
the ash
board
about
separation be
physical
no
there was
Sea.
the MASCO
Lily
MASCO inside
tween
signed a letter as
offices,
at
that she
id.
prosecutor who
1105. The
actually a
although
Lily
she was
president of
the mat-
presented
made this statement
MASCO,
secretary
id.
when
jury in Delaware
grand
ter to the
president
sign
trial,
letters
regularly would
she
Prior
Reilly and Dowd testified.
although
created MASCO
corporations
prosecutor,
disqualify the
they sought
case,
nothing
companies,
aggravating
she knew
about the
id. at
“there
...
exist[ ]
or miti-
Dobbins,
secretary
gating
kind,
in the
538-89. Clare
circumstances of a
or to a de-
Annapolis,
gree,
adequately
office in
testified
Coastal Carriers
taken into consideration
Lily
Sentencing
that there was
letterhead
the Coastal
Commission.” Dowd ar-
office,
gues
Carriers
see U.S.
and that
that his
prosecution
false declarations
Carriers,
“atypical”
the check books for Coastal
Amal-
nothing
because “he had
what-
gamated,
Barge Corporation
underlying
Coastal
soever to do with the
ocean
offense,”
kept
dumping
in the Coastal
office.
Carriers
and his “actual false state-
Thus,
agree
government’s
hopelessly
nature,
we
with the
ment itself is
technical
proper
argue,
arising
open-ended,
“[i]t
contention that
as it does from the
am-
evidence,
biguous
...
question
based on this
‘You have no idea?’” See
disregard
should
the form of these different D.
argues
br. at 40. Dowd also
that a down-
corporations and look
departure
instead
the sub- ward
was warranted because his
doing
“may
stance of who was
what.”
suspension
See U.S. br.
conviction
well result in the
at 70.
government
debarment from all future
personally
contracts not
of Dowd
but
Finally, Reilly argues
prose
also of the various businesses owned
cutor stated that
the defendants had not
entire, family.” Id. at 41.
*26
any
called
witnesses from the radio transmit
Denardi,
In United States v.
ting companies
because the
(3d Cir.1989),
272
we held that “we have no
“accurate,”
and that this statement re
jurisdiction to review a district court’s discre-
quires reversal of
conviction because
tionary
depart
decision not
from the
it was based on evidence outside the record.
Bierley,
Guidelines.” United States v.
922
excused,
After the
the defendants
(3d Cir.1990)
(citing
F.2d
United
objected to
this statement. See U.S.
Denardi,
272).
States v.
F.2d
“How-
point,
sug
216-19. At this
the district court
ever,
recognized
we
in Denardi
that when
gested
parties stipulate
that
depart
the district court’s decision not to
is
companies
required
cable
did not have the
predicated
legally
impres-
on the
erroneous
verify
accuracy
information to
authority
sion that it did not have the
to do
radiotelegrams.
parties
Id. at 219-21. The
so,
may
Bierley,
we
review that decision.”
agreed
stipulation,
on the
and the district
I. Is the district court’s refusal not establish that Dowd’s false statement departure Dowd a downward under “differs from the norm.” See U.S. Sentenc sentencing guidelines reviewable Guidelines, 4(b), 1, A, ing Pt. note Ch. 5-6 court, so, by this did the district if (1993). out, government points Appli As the refusing grant court err in the de- specifi § cation Note 3 to Guidelines 2J1.3 parture? cally addresses the situation where the de sought departure perjury Dowd a downward fendant is convicted both for range respect from the sentence calculated to which he committed under the “offense with Sentencing perjury,” indicating Guidelines. Pursuant to 18 that the Commission did 3553(b), § argued perjury U.S.C. Dowd not a conviction for a consider absent depart underlying court should downward because his conviction for an offense to be on a defendant’s departure based Further, downward do not believe we “atypical.” contribution to ability make a work-related particularly “techni- his false statement circumstances,” extraordinary nature,” an am- society only it arose from or that cal in id., that a principle from this biguous question. it follows departure may grant a court downward cor court was Finally, the district relatives’ abilities on a defendant’s based poten concluding the conviction’s rect society contributions make work-related consequences for financial tially harmful It is extraordinary only in circumstances. did Dowd, family, their businesses family may suffer that Dowd’s unfortunate departure from the justify a downward financially due to his personally and both Sentencing Commission’s The Guidelines. However, nothing ex- we conviction. propriety of regarding the policy statement conviction traordinary in the fact that Dowd’s departure based on downward granting interests but only his business harm not controlling, “vocational skills” defendant’s members, family and we are of his also those 5H1.2,21 policy state and this Guidelines sen- the effects of Dowd’s not convinced that sentencing that a indicates court ment of sufficient these businesses tence on “are departure on grant a downward should society justify a importance economic “extraordinary circumstances.” basis departure.” Id.22 Sharapan, States Cir.1994). policy application of this Our conclude Sharapan led us to statement III. Conclusion granting court erred the district judgments on its of conviction and sentence departure based determina downward incarceration would that the defendant’s tion will be affirmed. We to fail. Id. at 785-86.
cause his business *27 on our determination our conclusion based GARTH, dissenting: Judge, Circuit extraordinary in the nothing there was company’s of a the incarceration majori- fact compelled I to dissent from am might “cause harm to the business principal (1) convinces me that ty opinion as the record that, assuming even employees,” and and its charges, a trial on all is entitled to new of the fail as a result would business (2) false requires that the the record also incarceration, “no ba there was defendant’s charge against Dowd must be declaration failure would concluding that this sis for I am also with disturbed dismissed. society any extraordinary harm to as cause majority evidentiary analysis by which the Id. at 785. whole.” analysis, Reilly’s That sustains conviction. flawed, seriously not my opinion is which will alleges that his Dowd sentence but, it will only appeal, because affects family and that of his harm both business circuit, necessarily it law of this become the Nevertheless, Sentencing members. proceed- appellate trial and infects all future regarding policy statement Commission’s may impact. It is for these ings on departures based on a defendant’s downward expressed I fully below—that reasons —more controlling because vocational skills company my necessary part find it policy underlying ... state “principle [this majority. colleagues in the sentencing judge may grant a that a is] ment - -, States, pro- departure supports It our decision. also v. United U.S. In Williams 1112, 1119, -, 341 in "ex- 117 L.Ed.2d factors are relevant 112 S.Ct. vides such 5H1.6, (1992), policy circumstances, "a state- § held that where traordinary” the Court Guidelines " taking a prohibits life, court from ment specified district ‘[d]isruptions of the as defendant’s action, is an the statement authoritative depend who difficulties for those concomitant meaning applicable guide- guide to the defendant, punishment of inherent in the are ” Gaskill, F.2d United States v. 991 line.” See also Gaskill, 991 v. United States incarceration.’ 82, (3d Cir.1993). 85 (3d Cir.1993) (quoting United 84-85 Johnson, (2d 128 Cir. v. 964 F.2d States policy Sentencing state- Commission’s 22. The 1992)). regarding family ties and the relevance ment responsibilities granting of a downward majority’s with the determination that nei I. prejudiced by ther nor Dowd was (1) majority that: with the I am in accord prosecutor’s closing arguments jury, ambiguity predicate in the no there was holding in and that our United States v. underlying Reilly’s convictions questions DiLoreto, Cir.1989), 888 F.2d in viola- knowingly making false declarations require per does not reversal se this case. (2) 1628(a); Reilly’s § false tion of 18 U.S.C. alleged adequately declaration indictments perjurious re- falsity purportedly of his II. (8) disputed radiotele- sponses; and that against Reilly into evidence grams admitted agree I that the Government could estab through circum- properly authenticated by lish circumstantial evidence the authentic evidence. stantial most, all, ity disputed if radio- accord, however, telegrams with the transmitted to and from
I am not
the Khian
hearsay issues
majority’s analysis
nearly two-year odyssey.
during its
Sea
I
Reilly.
901(b)(4) (authentication
reasons which
raised
For the
Fed.R.Evid.
can be
section, I
following
in the
dis-
will discuss
contents,
by “[ajppearance,
established
sub
majority’s holding that 13 of
agree with the
stance,
patterns,
internal
or other distinctive
radiotelegrams transmitted to
disputed
characteristics,
conjunction
taken
with oth
as non-hear-
the Khian
were admissible
circumstances”);
er
see also United States v.
Reilly.
my opinion,
say
admissions
(3d Cir.1992)
McGlory, 968 F.2d
admitting
radio-
court erred in
those
district
(holding that
evidence existed for
sufficient
necessarily under-
telegrams, and that error
to find
notes were authored
process, thereby taint-
the entire trial
mined
defendant,
government’s
despite the
ina
Reilly’s jury conviction on the ocean
ing
bility
fully
au
to establish
the defendant’s
(33
1411(a)),
as
dumping violation
U.S.C.
—
denied,
thorship by expert opinion), cert.
convictions. Ac-
well as his false declaration
-,
Hence,
those
I
in accord with the
am
to onshore entities and indi-
the Khian Sea
disputed
holding that
viduals)
properly admitted
the dis-
pursuant
were
properly authenticated
accept
majority’s
trict court.
I therefore
by circum
Evidence
Federal Rule of
messages
in those
position that the
contained
v. Con
See United States
stantial evidence.
(“The
(3d Cir.1993)
outgoing radiotelegrams were admissible
sole,
641, 661
pursuant
to Federal Rule of Evidence
upon this issue is
scope
appellate review
801(d)(1)
non-hearsay prior statements of
as
determining whether the admis
confined to
Fuentes,
Captain
judicial
prosecution
witness
discretion
sion constituted abuse
outgoing radiotelegrams
that the
themselves
determining
prima facie case had been
that a
803(6)
out”) (internal
the Rule
hear-
quotes
citations were admissible under
made
-- n ,
—
denied,
regularly con-
omitted),
say exception for records of
cert.
U.S.
(1994).
Majority
activity.
at 1414. I also
ducted
will allow incoming radiotelegrams linked A. was harmless. See id. at 1414. however, authenticity, showing A “is not incoming thus are left with 13 radio- We evidentiary par on a with more technical telegrams: purportedly sent to the rules, hearsay exceptions, governing such by Reilly Annapolis; Khian Sea Link, admissibility.” (quot- F.2d at 928 Berbillis, purportedly sent Kimon one Goichman, ing States v. shipping agent for Romo Greece. The (3d Cir.1976)); McGlory, 968 F.2d accord incoming transmission of each of these radio- because, 'prima That is once telegrams following three-step involved made, showing authenticity is it is facie (1) operator process: a coastal station would court, ultimately jury, and not the sender; message receive a from an onshore authenticity of the evidence. determines the (2) operator would then note the date of the transmission and where the time contrast, the determination of whether message originated communication or or was hearsay a matter of is admissible at all is law (3) In”; “Handed the coastal station decide, not a condition of fact for the court to operator message would then transmit majority’s subject resolution. The in Morse Code to the Khian where the hearsay raised treatment of the issues the Khian would con- radioman onboard however, effectively impermissi- Reilly, incoming message from Morse vert Code bly evidentiary governing equates our rules typed message. into admissibility showing slight with the re- Reilly argues incoming radiotele- quired for authentication. (1) hearsay: grams contained three levels of view, majority I Contrary to am con- the communication between the onshore incoming vinced that 13 of the radiotele- *29 (the declarant) hearsay and the coast- sender authenticated, grams, properly should while (the (2) auditor); operator al station witness not have admitted into evidence be- been the communication between the coastal sta- hearsay. they cause contain inadmissible (the declarant) hearsay operator tion (“Notwith- McGlory, at (the operator radio on the Khian witness authentication, standing the [documents] (3) auditor); operator’s radio written if would still have to be excluded the asser- message. majority recordation of the The hearsay in that not fall tions them are does incoming radiotelegrams concedes “that the any of Evi- exception under to Federal Rule product were the of [these] to the Khian Sea admissibility precluding the of dence 802 ” Majority at three out-of-court ‘statements.’ hearsay.”). however, concludes, It that those “statements” are not inad- three out-of-court B. hearsay. reaching at 1410. In missible conclusion, willing suggest majority I that the purposes my analysis, For of I am that put in the hat. outgoing to assume that the 18 radiotele- has the rabbit c. majority’s layered approach to rules.” The hearsay analysis,” Majority n. hearsay analysis is funda- majority’s The satisfy does not that criterion for admissi- premised on the it is mentally flawed because bility incoming radiotelegrams. radiotelegrams alleg- that the 12 assumption Annapolis, in by Reilly originated edly sent majority fully Significantly, the acknowl- Majority worked. See lived and where origin edges point that the of and destination 1408, 1409, 1410, 1405, 1406, 1407, radiotelegram, and the date on which each Yet, never ad- the Government sent, radiotelegram “were intro- each evidence, apart disputed from duced ie., truth, prove prove that duced to their themselves, messages documents radiotelegrams point from were sent actually radiotelegrams in the contained designated origin to the destination on the evi- originated Annapolis. in Without such Majority recog- date.” at 1411. It further dence, radiotelegrams all state- these produce nizes that the Government did not linked to therein cannot be ments contained witness, operator thereby as a coastal station Reilly. complicating hearsay analysis. Id. at its majority attempts n. The then testimony any of the no from There was any testimony from finesse the absence stations that the radio- intermediate coastal arguably could the coastal stations which fact, were, in “Handed at AN- telegrams gap hearsay in bridged have commu- NAPOLIS,” by the coastal sta- as asserted nications between the unidentified onshore radiotelegrams. No operators in the tion declarants and the radioman onboard repre- operator, employee, or coastal station declares, effect, that, Khian Sea. It while originating testified that sentative ever for the court it would have been nice district stations, radio- and the dates asserted operator from a to have heard coastal station were, fact, originating sta- telegrams trial, really necessary is not which, which, and the dates on tions from assume, purposes for our because we can messages the unidentified onshore de- from evidence, through other the radiotele- transmitted clarants were received and/or Annapolis,” grams were “handed Moreover, though coastal stations. even Reilly. I had to come from dis- therefore acknowledged that “there district court agree. errors,” significant be transmission 1297-98, present- was no evidence there majority “assembling” is remitted accurately stations tran- ed that the coastal Captain from Fuentes and Coastal messages received from the scribed the Dobbins, secretary, Clare to sub- Carriers’ declarants, onshore unidentified theory Reilly authored and stantiate its accurately transmitted those coastal stations Annapolis to sent Code, Khian Sea. messages, Morse authorized the Khian difficulty with Hence, to do the same. The contained the Berbillis “statements” necessarily rely analysis that it must viewed as can origin of each hearsay.” places dates and “[hjearsay within on the included However, radiotelegram. no coastal station hearsay have the Fed.R.Evid. 805. We those essential operator ever testified to declarants transmitted unidentified onshore radiotelegrams, and thus operators, components who also coastal unidentified majority seeks to hearsay specifying the evidence which the additional transmitted fails, hearsay exception because weave into a point origin and the date to the Khian Sea *30 radioman, links that the coastal ultimately all of it lacks the critical who translated supplied. operators could have into a station hearsay from Morse Code written evidence, Hence, set forth in none of the trial “[hjearsay included within recordation. As that these majority’s opinion, established hearsay,” incoming radiotelegrams thus actually originat- incoming radiotelegrams subject requires for 12 to Rule which are Reilly sent Annapolis, let alone that admissibility part the combined ed that “each 1411- Majority 1411 n. 14 and excep- with an them. See [must] conform[ ] statements 16, 1412 n. and 1413 n. 18. Nor 1412 n. hearsay provided rule these tion to the later, testimony representa- establish, from a coastal station point I out did it as tive, however, simply to send the no admissible Reilly authorized Berbillis there is ever radiotelegram. incoming establishing Reilly the onshore 13th as radiotelegram who transmitted the declarant anyone who at trial testified being to the Khian Sea. That instructions Annap- billing for his number knew the telex so, allegedly any “statements” made Carrier, could company, Coastal olis-based radiotelegrams by Reilly, directly either or anywhere in the coastal station from call a indirectly, not admissible as non-hear- transmission, shore-to-ship send a world and say party-opponent. admissions of a originat- having be identified as which would 805; Westinghouse Fed.R.Evid. Carden v. testimony was uncon- Annapolis. That ed (3d Cir.1988) Corp., Elec. troverted, pre- and there was no evidence (“That part hearsay included within [the Government, apart by from sented hearsay] which contains a reiteration of what themselves, Reilly, radiotelegrams that it was him not an someone told admissible as knew Coastal Car- and not someone else who by party-opponent since the au- admission number, billing the 12 incom- who sent riers’ unknown.”) (citation thor of the statement is ing radiotelegrams which the Government omitted). quotation and internal Reilly. attributed to later, Because, point I out token, By message the same contained lay proper failed to founda- Government radiotelegram purportedly in the sent to the pur- radiotelegrams tion for admission Khian Sea Berbillis Greece2 is inad- exception of suant to the business records hearsay missible because no coastal station 803(6),1 radiotelegrams Rule and because operator ever established Berbillis as the requirements of themselves do not meet the onshore declarant. Id. Nor can that out-of- rule, hearsay any exception to the other an court statement be deemed to be admis- establishing there is no admissible evidence by Reilly sion authorized under Rule were sent from 801(d)(2)(C). That Rule of Evidence ex- Annapolis. See Fed.R.Evid. 806. Conse- hearsay cludes from the definition of a state- quently, in those the “statements” contained against party ment introduced which that majority links to —which person party authorized another to make Reilly through hearsay (e.g., inadmissible subject. concerning the ANNAPOLIS”) “Handed In at —cannot non-hearsay deemed admissible as admis- Independent proof of the of an existence Reilly. sions of agency relationship scope and its would be required would, to show that authorized Ber-
Statements attributed to any radiotelegram themselves, course, billis to send to the Khian be admissible under Pelullo, 801(d)(2)(A), Sea. See United States provides that a Rule (3d Cir.1992). Contrary n. 4 hearsay if it statement is not is offered majority’s proof position, there is no such against party, party’s and is the own state- Berbillis, employee an representative an or establish that Romo ment either individual Carriers, requisite acting foundational and not “was capacity. Without the of Coastal business, institution, association, 803(6) pro- provides: includes fession, 1. Rule kind, memorandum, record, occupation, calling every report, data com- A or form, acts, events, profit. pilation, or not conducted for condi- whether tions, opinions, diagnoses, made at or near by, the time or from information transmitted radiotelegram purportedly on October 2. The sent by, person knowledge, kept if in the in Greece to the 1988 from Kimon Berbillis regularly course of a conducted business activ- following message: contained regular practice ity, and if it was the of that DELAYYOURETA ATTA. FUENTES PLEASE memorandum, activity business to make 14 STOP TRY AR- UNTIL NOON OCTOBER record, compilation, report, all as or data RIVE WITH 500 TONS IN ONEHOLD STOP shown of the custodian or witness, REILLY WILL CABLE YOU INFO YOU RE- qualified other unless the source of QUESTED STOP BEST REGARDS information or the method of circumstances of *31 KIMON preparation indicate lack of trustworthiness. paragraph term “business” as used in this The
1429 omission, Notwithstanding district Ma- Reilly at his behest.” See of or behalf radiotelegrams anyway, majority opinion never- court admitted The jority at 1407. any offering explanation or rationale had without appears to assume theless majority compounds The statement for its decision. to make the Berbillis authorized hearsay analysis. tortured radiotelegram Berbil- that error with its in the appeared Captain Fuentes. How- allegedly lis sent testimony that
ever, Fuentes’ D. apart from him that ... Kimon Berbillis “Reilly told support posi majority also fails to its instructions,” see give [Fuentes] him would tion that the statements attributed to 1412, majority points to no Majority at nonhearsay, would be admissible as au- establishing that Berbillis was evidence of theory that those statements were not any radiotelegram by Reilly send thorized prove that their fered the Government to ash. pertaining to the Captain Fuentes ra- substance was either true or false. The any evi- majority refer us to Nor does the merely than diotelegrams were offered more links to Romo. whatsoever that dence “ prove the fact that the certain instruc ‘to agency rela- reason that no For the same given,’ ... and as circumstan tions had been appears in the tionship or authorization mind, namely tial of state of evidence opera- of the coastal proofs, the “statements” dumping opera knowledge of the ash time, date, (i.e., place origin of of the tors tion,” majority Majority at holds. See as of the radiotelegrams) and the “statements” Regardless of the distinctions (i.e., the recordation Khian Sea radioman majority sought between to be drawn incoming hearsay) could not be admitted fact, the “in instructions and statements non-hearsay authorized admissions here, if relevant to the hear structions” even 801(d)(2)(C), al- Reilly pursuant to Rule extraordinary hearsay im say analysis, have id. majority holds otherwise. See though the Garnier, plications. Compare v. Crawford at 1412. Cir.1983) (7th 1317, (affirming 719 F.2d 1323 into evidence of district court’s admission Carden, courts we cautioned district “which nonparty’s out-of-court instructions admitting declarations of unidentified against hearsay implications”). no carried at 1003. persons into evidence. Here, to establish the failed the Government Reilly— attributed The “instructions” identity groups of out-of-court declar- of two ... WITH e.g., “ARRIVE COLOMBO (1) unidentified onshore declarants ants: BALLAST” and “DIS ONLY 500 TONS Reilly in proved to be (alleged here but not PRIOR ARRIVAL 500 BALLAST POSE Greece) trans- Annapolis Berbillis who vastly different SINGAPORE” —are opera- station messages mitted to the coastal in the cases any the instructions or orders (2) tors; unidentified coastal station Majority at 1410 majority. cited orig- those operators who in turn transmitted States, 417 U.S. (citing v. United Anderson and then added messages inal in Morse Code 2253, 8, 211, 8, 41 2260 n. n. 94 S.Ct. 220 establishing hearsay allegedly further 1323; 20; Crawford, 719 F.2d at L.Ed.2d original place origin and the date Gibson, F.2d 833- v. 675 United States message. denied, (6th Cir.), 459 103 cert. U.S. (1982); 74 L.Ed.2d another well- S.Ct. also reiterated Carden We Cir.1975), (7th Keane, proponent of States rule of law: established denied, 424 U.S. 96 S.Ct. satisfy rt. heavy bears a burden ce (1976)). None Signifi- 47 L.Ed.2d requirements. trustworthiness Supreme Court case in the ease instructions cantly, court the instant the district Anderson, appeals deci courts of send- recognized [onshore] the “risk that the Keane, Gibson, and car Crawford, than sions someone else other er have been ad Yet, hearsay implications, and none was ried Reilly.” R.supp.app. 1297. Govern- these evidence, egregious context except mitted in the never admitted ment “instructions,” them one can call documents, if indeed Reilly au- the inadmissible that, case. in the instant admitted radiotelegrams. thored the statements *32 however, greater import, say is the calculus. That is because their Of even admissi- messages, bility independent even if called instruc- fact that the is not of the radiotele- tions, grams made known to the messages were nevertheless themselves. Whatever the helped jury radiotelegrams, hearsay and could not have but influence contained in the jury radiotelegrams of their contents. The dis- of the in- because elements jury trict court never instructed the on how volved the of location and date the radiotele- considered; hence, grams by competent to be this evidence was were never satisfied it proof. never told that could consider of the The failure Government Reilly only messages through for attributed establish the coastal station senders’ establishing purpose testimony Reilly the limited of that cer- was the sender from given Annapolis particular and as cir- tain instructions been on the date created the hearsay of state of problems, cumstantial evidence threshold and the radio- mind, proof Reilly’s guilt. telegrams Reilly only and not as direct “linked” to because of not, the location and date could on this shown many expressed disap- have times our We record, satisfy any exception hearsay proval any admission of statements “which majority’s rule. See Fed.R.Evid. 805. The technically are not admitted for the truth of attempt problem, my to overcome this asserted, whenever the matter the matter view, never succeeds. asserted, value, regard to its truth without implies guilty the defendant is majority, The without that Reil- charged.” McGlory, crime F.2d at 332. ly radiotelegrams Annapolis, sent the my There is little doubt mind that gloss seeks to over this omission what it incoming offered the radiotele- Government calls “circumstantial evidence.” But what ev- contents, grams Reilly prove, their None, is idence disclosed the record? Captain not had ordered operator because the coastal station who ocean, dump the ash in the but Fuentes to could have testified as who sent the dis- dumping also lied about the ash patchs, they and from and when where were questions operation responded when he sent, never at trial. testified contempt proceeding again before words, majority In other would relieve grand jury. I the federal do not believe that requirements the Government from the permit of such “cir- our cases the admission require- Rule and of the foundational See, guilt. e.g., cumstantial evidence” 803(6), ments of Rule while at the same time Reynolds, United States v. 103- disregards jurisprudence. it own I our could Cir.1988) (holding statement inadmis- disagree not more. “prove it was offered to sible because guilt truth of the assumed fact of defendant’s content.”). E.
implied by its majority’s opinion that it The evil “[ejven argues The Government if the evidentiary jurispru- distorts established radiotelegrams hearsay, were were dence in order to embrace the Government’s properly exception admitted under the actions, not actions which are authorized regularly activity.” records of conducted any majori- accept Rule of Evidence. To Despite argument, U.S. br. at 33. ty’s ruling as the law of this court will affect that, majority acknowledged has now be- will, effect, only Reilly; dismantle operators cause the coastal station had not hearsay provisions of the Federal Rules lay testified to the foundation for the intro- Despite attempts by of Evidence. duction into their “statements” majority ruling to cabin the district court’s pursuant exception to the business records within the doctrines of Anderson and McGlo- rule, hearsay “the were ry, majority’s opinion eviscerates the not introduced as business records of the very safeguards hearsay rule and its Majority sending coastal station.” at 1411 n. exceptions designed protect. limited majority, apparently 14. The concerned messages admissibility attributed to should about the not, event, Berbillis, allegedly by Reilly be considered in the hear- sent none-
1431
support
requirements
for their admission in
transmitted [must meet]
theless finds
the
of
exception
hearsay
hearsay exception,
business records
to the
another
Fed.R.Evid.
the
805.”
803(6).
Console,
rule,
Majority
at 1413-
business records
—I
Slawik,
radiotelegrams purport- United States
incoming
Cir.1977).
by Reilly from
edly
to the Khian
sent
radiotelegram purported-
Annapolis,
one
jury,
follow-
grand
Before the federal
*34
Greece, and all
ly
Berbillis
sent
exchange
place:
ing
took
therein, were errone-
statements contained
you know what
A
JUROR: Do
GRAND
district
ously admitted into
happened to
ash?
court.
No.
[DOWD]:
my
that the
question in
mind
is no
There
You have no idea?
A
JUROR:
GRAND
of the
erroneous admission
No,
honestly
I
I
have not
don’t.
[DOWD]:
That evidence
harmless error.
was not
ship
two and a half
been on that
for
against
case
crucial to
Government’s
*
* *
years.
Captain
corroborated
Reilly.
It
alone
you
Seeing how
had
A
JUROR:
GRAND
Reilly ordered the
testimony that
Fuentes’
being
of not
able to
all this concern
dump
ash in the
to
Khian Sea crew
ash,
anybody
you didn’t ask
unload this
ocean,
Reilly thus knew that the ash
and that
where it went:
Indeed, the
dumped in the ocean.
had been
jury
that
there to ask?
indicated to
Who is
[DOWD]:
Government
testimony of
radiotelegrams,
not
guess you
I
could
A
JUROR:
GRAND
Fuentes,
against
Captain
was “the” evidence
ought
asking
captain.
He
start with
Reilly.
app.
R.
1109.3
know where it went.
to
incoming
funny guy.
They say
Because those 13
[DOWD]:
—he’s
Reilly,
enormously
I
prejudicial
to
Honduran
The first
time I met him.
gone.”
reversible error for
person.
hold that it was
said “The ash is
would
He
into evi-
court to admit them
I
the district
And
said—
Accordingly, I
reverse
dence.
would
good, but
A GRAND JUROR: Just said
charges,
I would re-
on all
convictions
you didn’t ask where it went? You
court for a new
mand his case to the district
want to know where it went?
didn’t
trial.
No,
I
I didn’t ask and
don’t
[DOWD]:
right?
know. All
Nor did he tell me.
III.
(D.
added.)
app.
(emphasis
475-76
majority
I
believe that
errs
trial,
jury
to answer
At
was asked
forming
question
holding
predicate
interrogatories
respect
to the
special
knowingly
the basis for Dowd’s conviction
above-quoted testimony. Specifically, it was
making
before the federal
a false declaration
falsity
to decide the truth or
of Dowd’s
asked
fatally ambiguous. Rath-
grand jury
not
following
negative responses to each
er,
a reversal and a
I am convinced that
questions:
distinct
the false declaration
remand for dismissal of
(1)
you
happened to the
“Do
know what
charge against
required
because the
Dowd
ash?”
alleged to have an-
question which he is
(2)
no idea?”
‘You have
fundamentally ambiguous
falsely
swered
is so
(3)
it went? You
entirely
didn’t ask where
“[Y]ou
unreasonable
would be
know where it went?”
it.
didn’t want
expect that he understood
United States
they
veiy
what was
jury,
prosecutor
er
well. See how
show
3.
In his summation to the
urged:
bles,
gentlemen,
going
look at the ca-
on at the time.
“Ladies and
app.
acknowledging
The
this is the evidence." R.
1117-18. While
trial,
prosecutor
argued
proof
further
that:
bore the burden of
Government
that,
guarantee
prosecutor
jury
"I
also told the
key
Captain
in this
Fuentes is not the
witness
[Reilly]
anything
say
you
thing,
if
asking
one
case. All of the evidence is what I am
cables, [he] would
would have discredited those
you
you
need to consid-
and I submit to
what
bring
brought
[Reilly] didn’t
have
them....
anyone,
anyone
have
er.... Not
could
them,
cables are accurate.” R.
you
them because the
When
read
filled those cables out.
togeth-
through
fit
read
them and see how
“
jury acquitted
giving
impossible
say
Dowd of
false
It is
‘men of ordi-
”
(3);
is,
response
question
nary
agree’
intellect could
about the mean-
jury found that Dowd did not
ask where
ing
question,
“You have no idea?” See
the ash went and did not want
know where
(citations
Ryan,
omit-
jury
went. The
did not return a
the ash
ted).
question
just
easily
That
can
(1);
question
verdict on
thus it never decided
asking
understood to be
whether Dowd had
falsely
whether Dowd answered
when he tes-
any
knowledge
actual
happened
what
grand jury
tified before the
that he did not
ash,
as it could be
asking
understood as
happened
know what
to the ash.
re-With
Dowd whether he had
idea whatsoever
(2),
spect
question
found that
ash,
happened
about what
as Dowd
*35
1623(a)
by falsely
Dowd violated 18 U.S.C.
contends.
“No,
don’t,”
stating,
response
I
in
to the
Although
majority
otherwise,
the
indicates
question, “You have no idea?”
Majority
the district court never
agree
majority
jury
While I
with the
that a
rejected
argument
question,
Dowd’s
“generally
meaning
is
free to determine the
fatally
“You have no idea?” was
ambiguous.4
question,”
I
the defendant ascribed to
can-
contrary,
granting
To the
in
stay
Dowd a
agree
majority’s
not
with the
conclusion that
pending appeal,
sentence
the district court
question
the
“You have no idea?” is amenable
recognized that
ques-
“there is a substantial
jury interpretation.
Majority
1417-
ambiguity
tion about the
materiality
1418. The
concedes that “if
Government
question
of the
and answer that was the
isolation,
question
in
viewed
would be
subject
perjury
the
conviction.” R. app.
fatally ambiguous.”
U.S. br.
50. Unlike
I, too,
302.
believe that there is a substantial
however,
majority,
persuaded
I am not
question
ambiguity
about
materiality
by
argument
the Government’s
that the am-
predicate question,
of the
and I would hold
biguity issue can be resolved in its
favor
question
that that
must be
resolved
favor
context,
against Dowd because “viewed in
1015;
Ryan,
of Dowd. See
828 F.2d at
Slaw-
question posed
‘you
to Dowd was
have no
ik,
idea?” not it is ambiguity Because of the inherent of the susceptible possible meanings. to at least two idea,” question “You have no I do not believe equally plausible That much is evident should have been allowed to urged by constructions Dowd and question consider Dowd’s answer to that aas argues, Government. As the Government possible basis for conviction of the false question asking could be viewed as swearing charge. Ryan, 828 F.2d at Dowd, you you “Are certain that have no Accordingly, I would reverse Dowd’s knowledge happened of what to the ash?” knowingly answering conviction for Or, contends, question as Dowd can be question falsely grand jury, I before the asking “any viewed as whether Dowd had would not even reach the issue Dowd raises idea —however far it fall short of actual concerning materiality ques- the the knowledge concerning happened what of that — rp. the ash?” D. br. at 3—4. tion. trial, rejected 4. Before “[Y]ou the district court Dowd’s ash?” and didn’t ask where it went? You motion to dismiss the false declaration count on didn't want to know where it went?” United ground questions that it was based on (D.Del. Reilly, F.Supp. States v. ambiguous vague answers too so toas 1993). The district court never even considered legally support perjury insufficient to convic ambiguity question “You have no so, doing tion. the district court focused only question idea?”—the which Dowd was con questions on two of the three later submitted to answering falsely. victed of See id. at 180-181. jury: you happened "Do know what in the decision judges participated who
IV. cir- available and to all the other this court my concern that emphasize again I regular active of the court judges cuit “hearsay” analysis, majority’s unfortunate service, judge no who concurred Reilly’s convic- sustaining results rehearing, and a having for asked decision that will extend tion, have ramifications will circuit in judges of the majority of the circuit appeal, so of this beyond far the confines having for voted regular active service this circuit. law of long as it remains banc, petition the court rehearing expressed have I For the reasons which Judge Becker would rehearing is denied. respectfully dissent opinion, I foregoing in banc. rehearing by the court grant judg- majority’s affirmance against and sentence of conviction ments Reilly and Dowd.
both REHEARING FOR
SUR PETITION
Aug. *36 SLOVITER, Judge, and Circuit
Before MANSMANN, STAPLETON, BECKER, America, STATES of UNITED SCIRICA, HUTCHINSON, GREENBERG, Plaintiff-Appellee, ALITO, ROTH, NYGAARD, COWEN, GARTH, MCKEE, LEWIS, Circuit ROBRENO, Judge.* District Judges, and Haley, O.B. Michael McCORD and rehearing filed petition for The Sr., Defendants-Appellants. Reilly, in the above P. appellant, William No. 93-8548. having been submitted captioned matter the decision judges participated who Appeals, Court of United States cir- the other available court and all Fifth Circuit. regular active judges of the court cuit in the service, judge concurred and no who Sept. rehearing, and a having asked for decision judges of the circuit majority of the circuit having for voted
regular active service banc, petition
rehearing by the court Judge Garth votes rehearing is denied.
for panel. rehearing before the REHEARING FOR
SUR PETITION
Aug. SLOVITER, Judge, and Circuit
Before MANSMANN, STAPLETON,
BECKER, HUTCHINSON, SCIRICA,
GREENBERG, ALITO, ROTH, NYGAARD,
COWEN, GARTH,
LEWIS, MCKEE, and Circuit ROBRENO, Judge.* District
Judges, and rehearing filed petition for Dowd, in the above
appellant, Patrick John having matter been submitted
captioned * vania, Robreno, sitting by designation. States C. Honorable Eduardo Pennsyl- Judge District District for the Eastern