U.S. v. Faison, 81-2010

• Decision Date: 14 May 1982
• Docket Number: No. 81-2010,81-2010
• Parties: 10 Fed. R. Evid. Serv. 589 UNITED STATES of America v. James Raymond FAISON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 292

679 F.2d 292

10 Fed. R. Evid. Serv. 589

UNITED STATES of America v. James Raymond FAISON, Appellant.

No. 81-2010.

United States Court of Appeals Third Circuit.

Argued March 29, 1982.

Decided May 14, 1982.

David A. Ruhnke (argued), Asst. Federal Public Defender, District of New Jersey, Newark, N. J., for appellant.

W. Hunt Dumont, U. S. Atty., Newark, N. J., for appellee; Kenneth Ballen (argued), Asst. U. S. Atty., Newark, N. J., on brief.

Before GIBBONS, SLOVITER and BECKER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

James Raymond Faison, convicted of violating the "wire fraud" statute, 18 U.S.C. § 1343 et seq. (1976), and of transporting stolen securities in interstate commerce, 18 U.S.C. § 2314 (1976), contends that the court erred in refusing to dismiss the wire fraud counts of the indictment because the government manufactured the federal jurisdictional element and in denying his motion for a new trial. We vacate the judgment and remand for further proceedings.

I.

In urging that the government artificially federalized the crimes in this case Faison relies on the Second Circuit decision in United States v. Archer, 486 F.2d 670 (2d Cir. 1973). In Archer, federal agents were investigating the nature and extent of corruption in the New York criminal justice system. In their zeal, these agents went beyond any proper investigatory role, lying to New York police and committing perjury before New York judges and grand juries. To bring the criminal activities they discovered within the ambit of the Federal Travel Act, 18 U.S.C. § 1952, they dispatched an informant to Newark, New Jersey, to place telephone calls to suspects in New York. The Second Circuit, clearly dismayed at the government's "arrogant disregard for the sanctity of the state judicial and police processes," id. at 677, held the investigators had artificially injected the federal government in a matter of state concern. The telephone calls were found insufficient to sustain federal jurisdiction over the offenses because they were made only to manufacture interstate contact. The court held that the defendants had not used interstate channels of communication in a manner sufficiently meaningful to be subject to prosecution under federal statutes intended to prevent abuse of those channels in the furtherance of local crime. ¹

The evidence suggests that Faison, a New Jersey resident, operated an auto-body shop in New York City. In August 1980, he decided to move his business to New Jersey, whereupon he started negotiating with one Cal Mancuso to lease Mancuso's New Jersey trucking terminal. Meanwhile, defendant had obtained blank checks stolen from the American Foundation for the Blind whose offices are also in New York City. In due time, defendant asked Mancuso to help him cash these illegal checks in a scheme to raise money for both men. The two discussed their plan by meetings in New Jersey and by telephone conversations between Mancuso in New Jersey and Faison at his place of business in New York. Mancuso then made contact in New Jersey with Michael Selvanto, who was thought to have the necessary connections to cash the illicit checks. Selvanto, in turn, notified the FBI with whom he thereafter cooperated by recording his conversations with the conspirators and by keeping the FBI informed of Faison's and Mancuso's activities.

On securing Selvanto's agreement to help, Mancuso, from New Jersey, telephoned Faison in New York to tell him the good news. A few days later, Mancuso called defendant, again in New York, to ask that the checks be brought over. Faison personally delivered the stolen checks to Mancuso in New Jersey. Mancuso, copying from a cancelled check provided by Faison, forged the Foundation's signature on the blanks and turned the checks over to Selvanto.

Selvanto soon informed Mancuso that there was a problem with the bank clearing the funds and that $1,500 would have to be paid to a banker to facilitate matters. Mancuso immediately called Faison in New York to relay the message. Selvanto, Mancuso and Faison then met at Mancuso's to deal with their contretemps. They reached a solution whereby Selvanto would give his personal check to pay off the corrupt banker. Before leaving, Faison gave Selvanto his business telephone number in New York so that Selvanto could reach him there when the monies from the cashed checks became available.

A few days later Selvanto called Faison at the auto-body shop in New York to arrange for the defendant to meet the corrupt banker who would give defendant his share of the take. This call was placed from the FBI offices in New Jersey, rather than Selvanto's home, and was recorded. Selvanto called Faison in New York the next day, again from the FBI offices in New Jersey, to finalize details. Faison went to that meeting in New Jersey and was arrested.

In support of his Archer contention Faison relies chiefly on the two calls made by Selvanto from the FBI office. The analysis made by Judge Friendly in the Archer case does not apply, however, because on this record we are not dealing with a matter of local interest being artificially federalized by federal encouragement of the use of facilities of interstate commerce which would not otherwise have been used. Faison's place of business is in New York, yet his dealings with the conspirators were in New Jersey. The telephone communications made from New Jersey to Faison in New York were at his behest. He gave Selvanto and Mancuso his work number with instructions to call as the news broke. Use of the interstate telephone lines during working hours facilitated and shaped the crimes. Faison took advantage of interstate communication to effectuate his plan and coordinate the various players' actions. Moreover, we are not troubled that Selvanto placed the telephone calls from the office of the FBI in New Jersey and that these were the calls alleged in the indictment. Selvanto was carrying his activities within New Jersey, so any calls to Faison would have emanated from that state. That he chose to call from the FBI office rather than from his home or a phone booth does not vitiate the interstate nature of the communication. There was no sham on the government's part. Thus we reject the contention that the wire fraud counts should have been dismissed.

II.

A multi-count indictment was returned against Faison and Mancuso. Count One charged them with conspiring to violate 18 U.S.C. § 1343-the "wire fraud" statute. Counts Two and Three charged them with substantive wire fraud. Count Four charged defendant alone with the interstate transportation of stolen securities. 18 U.S.C. § 2314.

Faison's first trial started on January 21, 1981. Mancuso, who had entered a guilty plea on Count One of the indictment pursuant to plea bargaining, testified as a government witness. The jury was unable to reach a verdict, and the District Court declared a mistrial. A second trial began on March 17, 1981. By this time Mancuso was in the hospital for treatment of his heart problem. Defense counsel requested an adjournment of the trial so that the jury would have the benefit of Mancuso's live testimony and live cross-examination. This request was repeated throughout the trial. The District Court, however, refused to adjourn the trial and instead permitted the introduction of the testimony which Mancuso gave at the first trial. On March 25, the jury found Faison guilty of all counts.

Faison argues that the admission of Mancuso's testimony violated his Sixth Amendment confrontation rights. Alternatively he urges that the court improperly applied Fed.R.Evid. 804(a)(4), or abused its discretion in failing to grant a continuance to determine whether Mancuso would be available in the near future.

Rule 804(b)(1) of the Federal Rules of Evidence excludes from the hearsay rule:

testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination

if the declarant is unavailable as a witness. Fed.R.Evid.R. 804(a) in turn defines unavailability to include, inter alia, "situations in which the declarant ...

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity.

Fed.R.Evid. 804(a)(4). The District Court determines his unavailability, subject to appellate review for abuse of discretion. ² See United States v. Amaya, 533 F.2d 188 (5th Cir.). See generally, Howard v. Sigler, 454 F.2d 115, 118 (8th Cir.), cert. denied, 409 U.S. 854, 93 S.Ct. 188, 34 L.Ed.2d 98 (1972). See also United States v. Bell, 500 F.2d 1287 (2nd Cir. 1974); Peterson v. United States, 344 F.2d 419 (5th Cir. 1965).

In this instance, the trial court decided that Mancuso, who was in the hospital suffering from a heart attack, was unavailable. The court therefore admitted Mancuso's earlier testimony and refused Faison's request for an adjournment so that Mancuso could be heard live. There is no question Mancuso was too sick to testify at the time of trial. That is not, however, dispositive. Our inquiry, instead, is whether the District Court properly exercised discretion in not adjourning the trial for a reasonable period to afford the witness enough time to recover from an illness which might be temporary, and thus to be available once more for live testimony.

There is evidence in this record that a decision not to adjourn might well have been within the parameters which we must accord to trial judges in their exercises of discretion in matters such as this. On the date that the trial court made its determination not to adjourn, the court had before it information that Mancuso was...