U.S. v. Saget

Decision Date28 July 2004
Docket NumberNo. 03-1200.,03-1200.
Citation377 F.3d 223
PartiesUNITED STATES of America, Appellee, v. James SAGET, also known as Hesh, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Appeal from the United States District Court for the Southern District of New York, Kaplan, J Marilyn S. Reader, Larchmont, NY,for defendant-appellant.

Anthony S. Barkow, Assistant United States Attorney for the Southern District of New York (David N. Kelley, United States Attorney for the Southern District of New York, on the brief; Marc L. Mukasey, Assistant United States Attorney, of counsel), New York, NY,for appellee.

Before: SACK, SOTOMAYOR, and RAGGI, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Defendant-appellant James Saget appeals from a judgment of conviction entered on April 1, 2003 in the United States District Court for the Southern District of New York (Kaplan, J.), following a jury trial. Saget was convicted of one count of conspiracy, in violation of 18 U.S.C. § 371, to traffic in firearms in violation of 18 U.S.C. § 922(a)(1)(A) and to make false statements in connection with firearms trafficking in violation of 18 U.S.C. § 922(a)(6), as well as one count of firearms trafficking in violation of 18 U.S.C. § 922(a)(1)(A). On appeal, Saget argues that, inter alia, the district court violated his Confrontation Clause rights by allowing the government to introduce into evidence the statements of a separately indicted co-conspirator, Shawn Beckham, who was unavailable to testify at the trial. Saget also argues that the court abused its discretion in determining that Beckham's statements were admissible under the exception to the hearsay rule for statements against the declarant's penal interest, see Fed.R.Evid. 804(b)(3). We address these arguments in this opinion and deal with Saget's other challenges to his conviction in a summary order to be later filed.

We hold that the introduction of Beckham's co-conspirator statements against Saget did not violate the Confrontation Clause because the statements were not testimonial, and therefore did not implicate the per se bar on the introduction of out-of-court testimonial statements, absent a prior opportunity for cross-examination, enunciated by Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and because Beckham's statements were made under circumstances conferring the indicia of reliability required by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). We also hold that the district court did not abuse its discretion in admitting the statements as against the declarant's penal interests pursuant to Fed.R.Evid. 804(b)(3).

BACKGROUND

In June 2002, Saget was indicted for conspiring to traffic in firearms and to make false statements in connection with firearms trafficking, and firearms trafficking. According to the evidence introduced at trial, Saget and his co-conspirator, Shawn Beckham, concocted a scheme in early 2000 to purchase firearms illegally in Pennsylvania and transport them to New York for sale on the black market. Because Saget and Beckham both had criminal records that prohibited them from purchasing firearms, they used straw purchasers — people without criminal records who were paid to make individual gun purchases — to buy guns in Pennsylvania. The straw purchasers were usually, but not always, female exotic dancers. Saget and Beckham would then sell the guns in New York.

In May and June 2001, Beckham engaged in two conversations with a confidential informant ("CI"), a friend whom Beckham thought was interested in joining the gun-running scheme. During the conversations, Beckham extolled the benefits of the scheme, relaying his and Saget's gun-running practices, profits, and past exploits in a manner that implicated both himself and Saget. Unbeknownst to Beckham, both conversations were recorded by the CI. At Saget's trial,1 Beckham was unavailable to testify. The government therefore sought to introduce the portions of the taped conversations in which Beckham implicated both himself and Saget, arguing that the statements were against Beckham's penal interest and were admissible under Fed.R.Evid. 804(b)(3). The district court ruled that the statements in which Beckham referred to gun-running activities that he and Saget conducted jointly were admissible as statements against Beckham's penal interest because they implicated Beckham in a conspiracy with Saget. The court also found that the admission of the statements as substantive evidence of Saget's participation in the conspiracy did not violate the Confrontation Clause because the statements bore particularized guarantees of trustworthiness required under Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Saget was subsequently convicted.

Saget now appeals the district court's ruling that Beckham's statements were admissible. He argues that the court committed reversible error in failing to exclude the statements on the ground that they contained insufficient indicia of reliability to satisfy the Confrontation Clause as explicated by Roberts and United States v. Matthews, 20 F.3d 538 (2d Cir.1994), and that the court improperly admitted many statements that were not actually against Beckham's penal interest, in violation of Rule 804(b)(3) and Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994).

Subsequent to the filing of this appeal but prior to oral argument, the Supreme Court decided Crawford, which substantially alters the Court's existing Confrontation Clause jurisprudence. Crawford holds that no prior testimonial statement made by a declarant who does not testify at the trial may be admitted against a defendant unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine him or her. Crawford, ___ U.S. at ___, 124 S.Ct. at 1369. We ordered supplemental briefing on the issue of whether Crawford renders the admission of Beckham's statements about Saget unconstitutional. Saget now argues that Beckham's statements were testimonial within the meaning of Crawford and that, because Saget had no opportunity for cross-examination when the statements were made, their admission violated the Confrontation Clause.

DISCUSSION
I. Crawford and Its Effect on Existing Confrontation Clause Jurisprudence

As an initial matter, we must determine how the Confrontation Clause analysis should proceed in light of Crawford. Crawford redefines the scope and effect of the Confrontation Clause, substituting a per se bar on the admission of out-of-court testimonial statements that were not subject to prior cross-examination for the balancing test that previously delineated the limits of the right to confrontation. This redefinition is premised on the text of the Clause, which states that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The right of confrontation extends only to witnesses, therefore, and Crawford redefines the Court's Sixth Amendment jurisprudence by holding that the term "witnesses" does not encompass all hearsay declarants. Crawford, ___ U.S. at ___, 124 S.Ct. at 1364.

Until Crawford was decided in March 2004, the scope of a defendant's Confrontation Clause rights was delineated by Roberts, which "conditions the admissibility of all hearsay evidence on whether it falls under a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness." Id. at 1369 (internal quotation marks omitted). Any out-of-court statement was constitutionally admissible so long as it fell within an exception to the hearsay rule or, if that exception was not firmly rooted, the court found that the statement was likely to be reliable. See White v. Illinois, 502 U.S. 346, 366, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., concurring in part and concurring in the judgment) (noting that the Roberts line of cases tended to "constitutionalize the hearsay rule and its exceptions"); Lilly v. Virginia, 527 U.S. 116, 140, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (Breyer, J., concurring) ("The Court's effort to tie the Clause so directly to the hearsay rule is of fairly recent vintage....").

Crawford abrogates Roberts with respect to prior testimonial statements by holding that such statements may never be introduced against the defendant unless he or she had an opportunity to cross-examine the declarant, regardless of whether that statement falls within a firmly rooted hearsay exception or has particularized guarantees of trustworthiness. See Crawford, ___ U.S. at ___, ___, 124 S.Ct. at 1370, 1374. It is clear that a court faced with an out-of-court testimonial statement need not perform the Roberts reliability analysis, as Crawford replaces that analysis with a bright-line rule drawn from the historical origins of the Confrontation Clause. See id. at 1359-63.

Crawford, however, leaves somewhat less clear the status of the Roberts line of cases insofar as these decisions deal with statements that are not testimonial in nature, however. In discussing the fallibility of the Roberts reliability analysis with respect to testimonial statements, the Court leveled several criticisms at the Roberts approach that would apply with equal force to its application to nontestimonial statements. See id. at 1370 (stating that Roberts obscures the fact that the Confrontation Clause prescribes a procedural guarantee that reliability should be determined through cross-examination rather than through other methods); id. at 1371 (noting that "[r]eliability is an amorphous, if not entirely subjective, concept" that is subject to judicial manipulation); id. at 1373-74 (stating that Roberts's "open-ended balancing test" may often fail to provide "any meaningful protection"). In light of these perceived flaws in the Roberts analysis, at least two Justices —...

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