U.S. v. McClain

Decision Date28 July 2004
Docket NumberNo. 02-1093(L).,No. 02-1122(CON).,02-1093(L).,02-1122(CON).
PartiesUNITED STATES of America, Appellee, v. Michael McCLAIN, also known as "Michael MacClane"; Marianne Curtis; Louis Frechette; Roy Thornton, Defendants, Robert Martins, also known as "R. Martins", also known as "R Martin", Antonio Guastella, also known as Nino Anthony Guastella, also known as Anthony Costelli, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

Appeal from the United States District Court for the Southern District of New York, Scheindlin, J Alexei Schacht, Nalven & Schacht, Astoria, NY, for defendant-appellant Robert Martins.

Bobbi C. Sternheim, New York, NY, for defendant-appellant Antonio Guastella.

Gary Stein, 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; Michael Schachter, Assistant United States Attorney, of counsel), New York, NY, for appellee.

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

SOTOMAYOR, Circuit Judge.

Defendants-appellants Robert Martins and Antonio Guastella appeal from a judgment of conviction entered on February 11, 2002, in the United States District Court for the Southern District of New York (Scheindlin, J.), following a jury trial. Both defendants were convicted of money laundering, multiple counts of wire fraud, and interstate transportation of stolen property, in violation of 18 U.S.C. §§ 1957, 1343, and 2314, respectively, as well as conspiracy to commit wire fraud and money laundering, in violation of 18 U.S.C. §§ 371 and 1956(h), respectively. On appeal, defendants argue that, inter alia, the admission of three of their co-conspirators' guilty plea allocutions violated their Confrontation Clause rights as recently enunciated in Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and that they are therefore entitled to a new trial. We address this argument here, and deal with defendants' other challenges to their convictions and sentences in a summary order to be later filed.

We hold that (1) the admission of the co-conspirators' guilty plea allocutions against Martins and Guastella violated the Confrontation Clause because the statements were testimonial and the appellants did not have the prior opportunity to cross-examine the declarants; (2) the violation is subject to harmless error review; and (3) the error was harmless as to both defendants.

BACKGROUND

Martins's and Guastella's convictions arise out of their development and orchestration of an elaborate scheme to defraud investors of millions of dollars. In 1997, the two began holding themselves out to investors as promoters of a high-yield investment program that promised massive returns within a short period of time. Defendants created a series of fictitious European banks from which investors were to "lease" funds to invest, usually for a leasing fee of around $35,000. Payment of this fee would purportedly release $1 million, which defendants would then assertedly place in the high-yield trading program. In reality, no funds were released and the investment programs were nonexistent. Martins and Guastella pocketed the leasing fees and eventually defrauded victims out of approximately $16.7 million. As the victims became more numerous, the scheme became more complicated, and Martins and Guastella recruited subordinates to help maintain the illusion that brokers were recommending the investment programs and that the banks were actual financial institutions. Three of these subordinates, Louis Frechette, Roy Thornton, and Marianne Curtis, pled guilty, and their plea allocutions were introduced at trial as evidence of the existence of the conspiracy.

In addition to the plea allocutions, the government's case at trial rested on the voluminous documentary evidence recovered during searches of Martins's and Guastella's residences, including various forged documents used to assure the victims that their "leased" funds were available for investment. Several victims testified, as did Swedish and American banking officials, who established that the banks created by defendants were fictitious. Martins and Guastella were both convicted on all counts and sentenced principally to 135 and 200 months' imprisonment, respectively.

Subsequent to the filing of this appeal but prior to oral argument, the Supreme Court decided Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), 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. Id. at 1369. We ordered supplemental briefing on the issue of whether Crawford renders the admission of the co-conspirators' plea allocutions unconstitutional.

DISCUSSION

Crawford departs from prior Confrontation Clause jurisprudence by establishing a per se bar on the admission of out-of-court testimonial statements made by unavailable declarants where there was no prior opportunity for cross-examination. See id. at 1370. Because the Clause 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. Crawford redefines the Court's Sixth Amendment jurisprudence by holding that the term "witnesses" does not encompass all hearsay declarants, but rather denotes only those who "bear testimony."1 Crawford, ___ U.S. at ___, 124 S.Ct. at 1364 (internal quotation marks omitted). Testimony, in turn, is "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" Id. (quoting 1 N. Webster, An American Dictionary of the English Language (1828)).

Although the Court declined to "spell out a comprehensive definition of `testimonial,'" id. at 1374, it provided examples of those statements at the core of the definition, including prior testimony at a preliminary hearing or other court proceeding, as well as confessions and responses made during police interrogations. See id. at 1364, 1374. With respect to the last example, the Court observed that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. In light of these examples cited by the Court as testimonial, it is clear that a plea allocution constitutes testimony, as it is formally given in court, under oath, and in response to questions by the court or the prosecutor. See also White v. Illinois, 502 U.S. 346, 365-56, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., concurring in part and concurring in the judgment, joined by Scalia, J.) (stating that the Confrontation Clause is implicated only by "formalized testimonial materials"). Therefore, a plea allocution by a co-conspirator who does not testify at trial may not be introduced as substantive evidence against a defendant unless the co-conspirator is unavailable and there has been a prior opportunity for cross-examination. See Crawford, ___ U.S. at ___, ___, 124 S.Ct. at 1370, 1374.

The admission of the plea allocutions of Frechette, Thornton, and Curtis therefore violated defendants' Confrontation Clause rights. It is well established that violations of the Confrontation Clause, if preserved for appellate review, are subject to harmless error review, however, and Crawford does not suggest otherwise. See, e.g., Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (ho...

To continue reading

Request your trial
99 cases
  • State v. Tollardo, Opinion Number: 2012-NMSC-008
    • United States
    • Supreme Court of New Mexico
    • March 29, 2012
    ...We hold, therefore, that a plea of guilty or no contest constitutes a "testimonial statement" under Crawford. See United States v. McClain, 377 F.3d 219, 221 (2d Cir. 2004) ("[I]t is clear that a plea allocution constitutes testimony, as it is formally given in court, under oath, and in res......
  • People v. Hill, A117787.
    • United States
    • California Court of Appeals
    • April 20, 2011
    ...to by Chaplin is, however, the type of formalized document that Crawford and Davis would treat as testimonial. ( U.S. v. McClain (2d Cir.2004) 377 F.3d 219, 221 (a guilty plea allocution is testimonial); accord,U.S. v. Hardwick (2d Cir.2008) 523 F.3d 94, 98.) If we treat Stepney's statement......
  • Arena v. Kaplan
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 8, 2013
    ...jury's verdict) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see also United States v. McClain, 377 F.3d 219, 222 (2d Cir.2004) (“It is well established that violations of the Confrontation Clause, if preserved for appellate review, are subject ......
  • State v. Staten, 3955.
    • United States
    • Court of Appeals of South Carolina
    • March 7, 2005
    ...found. She replied that the defendant did. The Ninth Circuit Court of Appeals found the statements were testimonial. United States v. McClain, 377 F.3d 219 (2d Cir.2004), discussed the testimonial aspect of a plea allocution: "In light of [the] examples cited by the [Crawford] Court as test......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT