USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1755

UNITED STATES,

Appellee,

v.

MICHAEL SPOSITO,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin and Campbell, Senior Circuit Judges.

_____________________

_____________________

Seth M. Kalberg, by appointment of the Court, for appellant.

_______________

Cynthia A. Young, Attorney, U.S. Department of Justice, with

________________
whom Donald K. Stern, United States Attorney,
________________
and James D. Herbert, Assistant United
________________
brief for appellee.

Ernest S. DiNisco
_________________

States Attorneys, were on

____________________

February 18, 1997

____________________

TORRUELLA,
TORRUELLA,

Chief Judge.
Chief Judge.
____________

Defendant-appellant Michael

Sposito was convicted of illegal gambling and aiding and abetting

illegal gambling

appeals

in

violation of

18

U.S.C.

1955.

He

now

the district court's denial of his motion to dismiss for

violation of the

Speedy Trial

3167,

and the

prior

immunized testimony

Act ("STA"), 18

district court's

of

U.S.C.

admission into evidence

Louis Padova

under the

3161-

of the

residual

exception to the hearsay rule.

I.
I.

A.
A.

Standard of Review
Standard of Review

In

questions under

de novo.
_______

The Speedy Trial Act

The Speedy Trial Act
____________________

reviewing

an

STA

ruling,

a clear error standard

we

examine

factual

and legal determinations

See United States v. Rodr guez, 63 F.3d 1159, 1162 (1st

___ _____________
_________

Cir.), cert. denied, 116 S. Ct. 681 (1995).

____________

B.
B.

The Legal Framework

The Legal Framework

At

issue is 18 U.S.C.

3161 et seq., which require

________

that:

the

trial of a

information

defendant charged

or

commission of an

indictment
offense shall

within seventy days

in an

with

the

commence

from the filing date

(and making public) of the information or

indictment,

or

from

the

defendant has appeared before

date

the

a judicial

officer of the court in which such charge

is pending, whatever date last occurs.

18

U.S.C.

3161(c)(1); see also Henderson v. United States, 476

________ _________
_____________

U.S. 321, 322

within

the

indictment

(1986).

seventy

If the defendant is

day

time

shall be dismissed on

period,

not brought to trial

"the

information

or

motion of the

defendant."

18

-2-

U.S.C.

3162(a)(2); see Rodr guez,

___ _________

day between the indictment

is

counted,

however.

63 F.3d at 1162.

Not every

or appearance and the start

Section

3161(h)

provides

of trial

list

of

circumstances in which the STA is tolled.

The question

countable

days

passed

before us, therefore,

between

is whether seventy

the indictment

of

Sposito

on

April 13, 1994, and the start

There are

of the trial on January

several periods of time

consider the last

13,

1995.1

to

December

countable

of these --

in dispute, but we

from December 1, 1994

17, 1995.

need only

to January

Defendant states that 41 countable days passed prior

1,

days

1994.

from

Because

December

defendant's claim under the

we

1,

find

1994

that

to

there were

January 13,

STA must fail, regardless of

no

1995,

how we

would rule on the earlier periods.

On November

date

the

30, 1994,

of December 12 was

government's

examination

of

November 8, was

motion

certain

pending.

the previously

scheduled trial

postponed indefinitely.

in

law

limine

to

enforcement

The motion in

At that time,

restrict

witnesses,

limine was

the

cross-

filed

on

eventually

heard

during the trial, with argument on the motion taking place

on January 31, 1995.

We must decide whether the motion in limine

tolled the STA clock from November 8 to January 13.

Three

decision.

principal

First,

there

sources

is the

of

statute,

authority

frame

which requires

our

that

____________________

Although

the trial started

on January 17, the

parties agree

that the filing of the January 13 motion to dismiss for violation

of the STA tolled the STA clock.

-3-

"delay resulting from any pretrial motion, from the filing of the

motion

through the conclusion of the hearing on, or other prompt

disposition of,

against

to

such motion" be

the STA.

include any

18 U.S.C.

excluded from the

3161(h)(1)(F).

explicit exceptions

in the

time counted

Congress chose not

statutory language.

Yet Congress was conscious of the possible need for more flexible

exclusion

requirements, as

demonstrated by

other parts

of the

statute.

For example, in section 3161(h)(8)(A), the Act excludes

periods

of delay resulting from a continuance, but only when the

trial

court sets forth, in

that "the ends of

the

18 U.S.C.

reasons for finding

justice served by taking such

best interest of

trial."

the record, its

the public and

3161(h)(8)(A).

action outweigh

the defendant in

a speedy

Second, in

327

(1986),

the

Court held

to exclude

from the

(F)

limitation

all time

in

hearing was

court

"declined

hearing is

of

intended

Act's 70-day

a motion

'reasonably necessary.'"

held on

to reach

information.

connection

"Congress

Speedy Trial

the filing

a motion to suppress

and a

further

between

that

U.S. 321,

and

the

the hearing on that motion, whether or not a delay

holding that

Henderson,
_________

United States, 476

_____________

Supreme

subsection

conclusion of

Henderson v.
_________

was filed on

March 25, 1981,

final decision

The court

The

In

November 3, 1980,

at which

the trial

because

it needed

did not receive

all filings in

with the motion until December 15, 1981."

(citations omitted).

Id.
___

Court excluded all of this

Id. at 332
___

time under

section 3161(h)(8)(F).

Id.
___

-4-

Finally,

States
______

Alvarez,
_______

1990.

we

are bound

by

our own

v. Rojo-Alvarez, 944 F.2d 959 (1st

____________

the government

On April 5, 1990,

filed a

ruling

in United
______

Cir. 1991).

In Rojo_____

limine on

March 8,

motion in

the district court

reserved ruling on

the merits

of the

motion until

trial.

On appeal,

this court

stated that:

[w]e do not believe

put

that a court

off consideration

of

a motion

exclude the time during which

lies dormant.

should
and

the motion

However, when the court is

presented with papers styled as a motion,

whether it ultimately determines that the
filing is a pretrial motion
proceeding'
entitled

under

(J),

to exclude at

of time during which

or an 'other

the

court

is

least the period

it considers how to

treat the filing.

Id. at
___

966.

The court

in Rojo-Alvarez disposed of
____________

excluding the time between the filing of the

upon which it was

time a

case.2

motion lies

reserved.

motion and the date

The panel's language

dormant did

not affect

the case by

regarding the

the outcome

of the

In the instant case, the government filed its motion in

limine on

November 8, 1994.

As

an initial matter,

motions in

____________________

Cf. United States

___ _____________

1994)

(finding that

postponed ruling

v. Clymer, 25
______
time

on the

after the

F.3d 824, 829-30

(9th Cir.

district court

explicitly

relevant motion

until after the

trial

must be counted against the STA clock); United States v. Gambino,

_____________
_______
59 F.3d

353, 357-59 (2d Cir. 1995) (ruling that the STA clock is

"not tolled

when the

postponement

of a

pretrial motion

until

after trial does not effect a trial court's ability to proceed"),

cert. denied, 116 S. Ct.
____________
Riley,
_____

991 F.2d 120,

hearing on a pretrial
of the time from

1671 (1996).

123 (4th

But see United States v.

_______ ______________

Cir. 1993)

(ruling that

motion is deferred until after

the filing of the motion

is excluded).

-5-

when a

trial, all

until its disposition

limine

are

"pretrial

motions"

3161(h)(1)(F), implying

the STA clock.

F.2d

the

that the filing

purposes

of such a

of

section

motion tolls

See id.; see also United States v. Santoyo, 890

___ ___ ________ ______________
_______

726, 728 (5th Cir. 1989); United States v. Johnson, 32 F.3d

_____________
_______

304, 306 (7th Cir. 1994).

31, 1995, well

the

for

The motion was not heard until January

after the start of trial.

motion and the trial date, the

motion in limine.

Between the filing of

court made no mention of the

Specifically, it did not, at

that it considered the motion "dormant."

any time, state

Defendant-appellant

implicitly

relegated

postponed the

the

contends

motion

trial indefinitely.

to

that the

dormant

He argues

district court

status

when

that "[u]pon

it

the

issuance by the Court on November 30 of the Notice cancelling the

December 12 trial date without

the setting of a new trial

date,

and because of that Notice, it was then apparent that the Court's

other business and

hold."

or convenience

Appellant's Brief at 25.

Alvarez for
_______

had put the

Sposito case

on

Appellant then appeals to Rojo_____

the proposition that

time during which

motions lie

dormant is to be counted against the STA clock.

We disagree with

motion was

The

appellant's claim.

never relegated to

order postponing

the trial

In

our view, the

dormant status for

STA purposes.

read, in

its

entirety, "[t]he

trial scheduled to begin December 12, 1994 has been canceled.

will

be rescheduled for a future date

Court

Order of Cancellation, November

to be advised."

30, 1994.

It

District

No reason was

-6-

given for the postponement

and there was no suggestion

motion in limine had been reserved until trial.3

that the

To

find that

the

motion was

dormant, therefore,

we

would have to rely on speculative inferences about the statements

and actions

of the lower

unwilling to

court.

We decline

to do so.

We are

adopt the position that appellate courts should sit

in review of the day-to-day operation of district courts in order

to

determine

when

district

court's

decision

to

put

off

consideration of a motion makes that motion "dormant" and when it

does

not.

District courts

scheduling decisions with

they are responsible.

decisions.

divine

the

There is

intent

are busy

and must

respect to the many

matters for which

We are ill equipped to second guess

no reliable way for

of the

district

to appeals that ask this court to

these

an appellate court

court

particular motion or its docket in general.

door

constantly make

with

respect to

to

Rather than open the

read the tea leaves of a

trial's

scheduling orders,

we will

only

look to

the explicit

statements of the lower court.

Our ruling today is also based on our interpretation of

the STA and Henderson.

_________

On the one hand, neither of these sources

suggests

motions fail

that dormant

to trigger

excludable time

____________________

Appellant also points to the district court's remarks, made on

the first day of trial, in which the court referred to the motion
in limine,
that

stating, "I have been

in connection with the trial

motion to resolve once I

be

a plea,

not amount to an

. . . .

a hearing on

I think holding the

have found that there was not

and apparently

[Henderson]."
_________

planning to have

there won't

However one may interpret

be, is

consistent with

these remarks, they do

explicit relegation of the motion

dormant status.

-7-

going to

in limine to

under subsection (F).

On the other hand, we recognize that there

may be sound policy reasons for an exception to subsection (F) in

the case of dormant motions.

create

such an

that even

exception, however,

unreasonable delays

for dormant motions should

We

do not

appellate

Because the statute does not itself

believe that an

court,

to have

and because

shall be excluded,

at the very least be

exception for motions

been

dormant,

Henderson held
_________

any exception

drawn narrowly.

deemed, by an
______

without any

explicit

indication

to

that

effect

by the

district

court,

would

be

consistent with the strong language of the STA and Henderson.

_________

Furthermore,

court,

there does

from the

not

point of

appear to

be

view of

a principled

between a motion that is dormant and one for which

delay

an appellate

prior to hearing is unreasonable.

distinction

the period of

In other words, finding

a motion to have been dormant without any language to that effect

in the record will often be

similar to concluding that there has

been

Henderson has
_________

unreasonable delay.

delay,

the

even if unreasonable, is excluded.

STA clock

on

the ground

that

all

To count time against

the motion

relegated to dormant status, therefore,

spirit of Henderson.
_________

established that

was

implicitly

would be contrary to the

We

either

hasten to add that this opinion should not be taken

to criticize or

to support the

concerning dormant motions.

Our

holding only extends

district

court

reserved

language in Rojo-Alvarez
____________

See Rojo-Alvarez, 944 F.2d at

___ ____________

to the question of

ruling

-8-

on

the

966.

whether or not the

motion

or

otherwise

relegated the motion to dormant status.

way on the

implications, for

We do not comment in any

Speedy Trial Act

explicit ruling that a motion

purposes, of

is dormant or that the court

an

will

reserve ruling on the motion.

As a result of our ruling,

to January

fact

the 43 days from December 1

13 are not counted for STA purposes.

In light of the

that appellant claims only 41 days were counted against the

STA clock prior

to December

1994, our finding

implies that

we

must affirm the district court's ruling on the STA issue.

______

II.
II.

The Admission of Evidence Claim

The Admission of Evidence Claim
_______________________________

Defendant-appellant

court erred

Louis

next

in admitting into

Padova.

Padova had

alleges

evidence the

testified in

that

the

district

prior testimony

October 1992,

of

under a

compulsion and immunity order, at the trial of Arthur Marder, who

was

accused of

illegal

gambling.

At

Marder's trial,

Padova

testified that Marder had told him that he was paying everyone --

the

implication

being

that

Marder

paid

off

local

Revere

politicians in order to protect his illegal video poker business.

It was alleged that these payments were made via Sposito.

At Sposito's

with immunity, and was

to admit Padova's

trial, Padova

refused

found in contempt.

testimony from

The

testimony

804(b)(5).

Rule of

to

be

Evidence 804(a)(2)

admissible

under

and

Federal

even

government moved

the prior Marder

district court found Padova to be unavailable

of Federal

to testify,

trial.

The

within the meaning

found the

Rule

of

Appellant contests the Rule 804(b)(5) ruling.

previous

Evidence

-9-

The

proper

interpretation

of the

Federal

Rules

of

Evidence is a question of law and is reviewed de novo, see Texaco

_______ ___ ______

Puerto Rico v. Department of Consumer Affairs, 60 F.3d 867, 874____________

______________________________

75

Cir.

(1st Cir. 1995); Hathaway

________

1996); United States

_____________

v. Coughlin, 99
________

v. Medina-Estrada,
______________

F.3d 550, 555 (2d

81 F.3d

981, 986

(10th

Cir.

reviewed

1996),

under an

but the

application

abuse-of-discretion

of

Rule

804(b)(5) is

standard.

See
___

Cook
____

v.

United States, 904 F.2d 107, 111 (1st Cir. 1990).

_____________

In

"that

ruling on

the testimony

the question,

relates to a

the district

material fact

court found

whether Arthur

Marder was indeed paying off politicians to obtain protection for

his video

proven,

poker machine

business in Revere.

If

that fact

is

it increases the likelihood that he was paying off those

politicians

through Mr. Sposito."

found

that "the

point

of

what

testimony of

Arthur Marder

2/7 Tr. 15.

Padova is

said

to

testimony the Government can procure."

Rule 804(b)(5) requires that:

The court also

more probative

Padova

than any

2/7 Tr. 16.

on the

other

(A)

the statement is offered as evidence

of a material fact;

(B)

the statement

the point

is more

for which

any

other

can

procure through

probative on

it is offered

evidence which

than

the proponent

reasonable efforts;

and

(C) the general

purposes of these

rules

and the interests of justice will best be

served by admission of the statement into
evidence.

-10-

Fed. R. Evid.

804(b)(5)(A), (B),

subparagraphs together,

read

as if it

word

"point."

court

Thus, the

"of material

its inquiry

statement to Padova

the first

requires that

defendant alleges

not directing

whether Marder's

Reading

defendant argues,

included the words

erred by

(C).4

two

(B) be

fact" after the

that

the district

to the

"question of

was more probative

on the

issue of whether Marder was paying off politicians than any other

available testimony."

Before

rests on the

Padova is

not

Appellant's Brief at 35.

proceeding, we

note that

defendant's argument

assumption that the question of what Marder said to

a material

Padova's testimony

fact.

If

would be admissible,

it

is a

material

even under

fact,

defendant's

preferred interpretation of

the rule.

To conclude, as defendant

does, that the question of whether Marder

is

material fact

and yet

was paying politicians

the fact that

he stated

as much to

Padova is not a material fact is an exceedingly fine distinction,

and not one upon which the question of admissibility should turn.

The

Rule

(A) and (B) of

804(b)(5) appears to be a matter of first impression within

the circuit.

plain

relationship between subparagraphs

We begin, as

always, with an

language of the rule.

Subsection (B)

the statement be

more probative on

offered."

subparagraph

The

material fact" as advocated

examination of

requires only that

"the point

does not

include

by defendant.

the

for which it

the

The drafters

is

words "of

of Rule

____________________

In

addition to

these requirements, the

statement must

also

have "equivalent

guarantees of trustworthiness."

Fed. R. Evid.

804(b)(5).

-11-

804(b)(5) separated the "material fact" element of the test found

in

subparagraph

subparagraph (B).

advocated

greater

(A)

from

Were the

by defendant,

clarity.

Had the

the

"more

probative"

rule intended to

it could

have been

drafters wanted to

element

have the

written

of

meaning

with much

include the words

"of material fact" following the word "point" in subparagraph (B)

they obviously could

they

have done

so.

Furthermore,

by doing

so,

would have eliminated the need for subparagraph (A) because

the necessity of a material fact would be explicit in the revised

subparagraph (B).

rule does not

As written, however, the plain language of the

require that the issue

most probative be a

on which the statement

is

requires only that it

be

material fact; it

probative on the point "for which it is offered."

Fed. R. Evid.

804(b)(5)(B).

Furthermore,

subparagraph (A)

requires only

statement be offered as evidence of a material fact.

________

itself be

a material fact.

If we were to

that the

It need not

import language from

subparagraph (A) to subparagraph (B), it would be more natural to

add the words "of evidence" after the word "point," such that (B)

read, "the statement is

for which

it is

more probative on the point

offered than any

other evidence."

interpretation, appellant's claim would fail.

established

that the statement

fact that Marder was

of evidence --

Under this

The district court

as evidence

paying off politicians and that

was a point of material fact.

that point

was offered

of evidence
___________

of the

the latter

The statement is more probative on

what Marder told

-12-

Padova -- than

any

other

evidence

that

the

government

could

procure

through

reasonable efforts.

Defendant, perhaps recognizing that the language of the

rule

is

not favorable

history.

He

points to

to

his argument,

language in

turns

the Senate

to legislative

Report to

the

effect that the residual hearsay exception should be used rarely.

S.

Rep. No.

1277,

93d

Cong.,

2nd

Sess.

(1974).

Our

own

examination of the legislative history, however, reveals that the

inclusion

cases,

of the

such as

trustworthiness

reflected

residual

the

hearsay exception

one before

equivalent

by the [other Rule

to

was intended

us,

that "have

or

exceeding

guarantees

the

804(b)] exceptions, and

for

of

guarantees

to have a

high degree of prolativeness [sic]."

In

Senate

order to illustrate

Committee felt should be

within one of

the other

cited Dallas County v.

______________

Id.
___

the type of

evidence that the

admitted but that

hearsay exceptions,

may not fall

the Senate

Report

Commercial Union Assurance Company, 286

___________________________________

F.2d 388 (5th Cir. 1961).

S. Rep. No.

1277.

At issue in

that

case was the cause of the collapse of the Dallas County Courtroom

clock tower.

Insurance

investigators believed that it collapsed

due to structural defects.

Dallas County believed that the tower

collapsed as a result of being struck by a bolt of lightning.

support

among

of its

position, the

other things,

tower debris.

County introduced

charcoal and

Id. at 390.

into evidence,

charred timbers found

In order to

In

in the

rebut this evidence, the

___

insurers

sought

to

introduce

a newspaper

article

from

1901

-13-

describing

year.

a fire

that had

occurred in

The court admitted the evidence

the courtroom

in that

despite the fact that it

was not characterized "as a 'business record', nor as an 'ancient

document',

nor as

any

other readily

identifiable and

happily

tagged species of hearsay exception."

The

cases like

Senate Report

Id. at 398.
___

stated that

the Dallas County case

_____________

"[b]ecause exceptional

may arise in

the future, the

committee has decided to reinstate a residual exception for rules

803 and 804(b)."

Under

S. Rep. No. 1277.

defendant's construction of the residual hearsay

exception, however, the newspaper

not

be admissible.

The newspaper

evidence of the material

result of a fire that

the case.

The

the question

only

article in Dallas County would

_____________

article

was introduced

as

fact that the charred timbers

were the

took place more than fifty years

prior to

newspaper story did not, however,

of why the

charred timbers

went to the fact that

go directly to

were in the

there had been a fire

tower, it

in 1901.

The

story was not more probative on the point of why the timbers were

charred than any other evidence.

than

any other evidence that

It was, however, more probative

the insurers could

provide on the

question of whether there had been a fire.

Just as in

that the statement

the case at

be more

bar, therefore, a

probative on the

requirement

point of

material

fact than

other available evidence would exclude the evidence in

question.

This is certainly not what the Senate Committee, which

-14-

used the Dallas County

_____________

case as an

example of evidence that

was

correctly admitted, intended.

Finally, we turn to the policies served by the residual

hearsay exception.

1.

These can be summarized as follows:

To provide sufficient

permit the

courts to

flexibility to

deal with

new and

unanticipated situations.

2.

To

preserve the

integrity

of the

specifically enumerated exceptions.

3.

To facilitate the

the

Federal

ascertainment
controversies.

Rules
and

of

basic purpose
Evidence:

of

truth

fair adjudication

of

11 Moore's Federal

1996-97).

It

Practice

803(24)[7] (2d ed.

is our view that these

1994 &

Supp.

objectives are best served

by rejecting defendant's proposed construction of 804(b)(5).

defendant's

flexibility

unanticipated

required

proposed interpretation would

available

situations.

to

courts

by 804(b)(5), "equivalent

needlessly reduce the

dealing

By excluding

The

with

new

evidence that

and

has, as

circumstantial guarantees of

trustworthiness," defendant's proposed interpretation

would also

make

of justice

truth ascertainment

and the

fair adjudication

unnecessarily difficult.

For

the

above

reasons,

we

decline

to

adopt

the

defendant's reading of subparagraphs (A) and (B), and we conclude

that the district court did not

err, as a matter of law, in

interpretation of Rule 804(b)(5)(B).

its

We examine

rule.

the

district court's

Defendant-appellant claims

application

of

the

that the admission of Padova's

-15-

testimony

was erroneous

analyze each part

part's reliability.

Williamson
__________

of the

because

the district

testimony in order

In support

v. United States,
______________

of his

512 U.S.

court failed

to determine

claim, defendant

594,

114 S.

Ct.

to

each

cites

2431

(1994), in which the

Supreme Court ruled that, for

the purposes

of Rule 804(b)(3), which governs statements against interest, the

word

"statement" refers to a single remark.

may

not

statement

just

assume for

purposes

is self-inculpatory

confession."

Williamson, 512
__________

of

"The district court

Rule

because it

U.S. at __,

804(b)(3) that

is part

of a

114 S. Ct.

fuller

at 2435.

Defendant would have us apply

the same definition of "statement"

to

such a definition,

Rule 804(b)(5) and, under

he argues that

the district court failed to analyze each part of the testimony.

We note

issue

at trial.

initially that defendant failed

Arguments

raised for the

are forfeited and reversible only upon

error."

United States v.
_____________

to raise this

first time on appeal

a demonstration of "plain

Sullivan, 98 F.3d 686,

________

687 (1st Cir.

1996).

"Under this standard,

establishing:

rule'; (2)

(1)

an appellant bears

'error,' i.e., a
____

that the error is 'plain'

the burden of

'[d]eviation from

a legal

or 'obvious'; and (3) that

the plain error affected 'substantial rights.'"

Winter, 70 F.3d
______

655 (1st

Cir. 1995) (quoting

Olano, 507 U.S.

_____

725, 732 (1993)), cert. denied,

____________

United States v.
_____________

United States
_____________

v.

116 S. Ct. 1366

(1996); Fed. R. Crim. Proc. 52(b).

This

definition

of

circuit

has

"statement"

not

yet

adopted

-16-

determined

for

Rule

whether

the

804(b)(3)

in

Williamson also applies

__________

to Rule

804(b)(5).5

We

need not

make

this determination in the instant case, because defendant's claim

fails regardless.

not

If Williamson's definition of "statement" does

__________

apply, defendant's claim is without merit because we find no

plain error in the district court's

whole

--

viewing

determination

satisfied.

that

it

as

the

The district

included adequate

review of the testimony as a

single

requirements

court

guarantees of

statement

of

concluded

Rule

--

and

804(b)(5)

that the

its

were

testimony

trustworthiness because

it was

given

under

oath,

because

Padova was

testified upon personal knowledge,

cross-examined by

indicia

of

because

he

and because he was vigorously

defense counsel in

reliability are

immunized,

the Marder trial.6

sufficient

to

These

establish that

the

district court's

conclusion that the testimony

not plain error.

The district court also found subparagraphs (A)

through

(C) satisfied,

and

we

find

no

plain

was reliable was

error

in

its

analysis.7
____________________

But see United States v. Canan,

_______ ______________
_____

48 F.3d 954, 960

(6th Cir.

1995) ("[T]he term 'statement' must mean 'a single declaration or

remark'

for

purposes

of all

of

the

hearsay

rules."), cert.
_____

denied, 116 S. Ct. 716 (1996).

______

6
is

Defendant accurately points out that testifying under immunity

not always

considered an

indicator

of truthfulness.

See,

___
e.g., United States v. Zanino, 895 F.2d 1, 7 (1st Cir. 1990).
____ _____________
______
is

not for

us,

district court's
testimony or to
court.

however, to

conduct

a plenary

review of

determination regarding the reliability

review every factor

considered by the

It

the

of the

district

The fact that the trial judge felt immunity bolstered the

credibility of the testimony does not amount to plain error.

Appellant

small

part of

alleges that
Padova's

the district

testimony and

remainder of the testimony.

court examined

only a

improperly admitted

the

We find no support for this claim in

-17-

If

Williamson

applies,

our

analysis

becomes

more

__________

complicated.

The district court does not appear to have engaged

in a sentence-by-sentence analysis of the testimony, as

required

by Williamson.
__________

district

court used, however, are not specific to any portion of

the

testimony

and

would

implying that there is

of the testimony.

"Mr. Padova

The

would be

apply

to

every

testified at

the Marder

vigorously

knowledge."

The

trial under

cross-examined by

Tr. 2/7 14-15.

stated that

oath, he

an incentive to tell the

judge

also

therein,

the reliability

Specifically, the district court

to avoid prosecution for perjury.

personal

statement

no error with respect to

immunized and, therefore, had

order

indicators of reliability that the

was

truth in

He testified based upon

noted

Mr. Duggan, the

that

"he

was

defense counsel."

Had

the trial

court conducted

a sentence-by-sentence

analysis, therefore, it would have applied these same criteria to

every sentence

and

would

have

concluded

sufficient indicators

of reliability.

plain

assessment

error

in

the

of

that

There

the

each

one

had

was, therefore, no

reliability

of

the

testimony.

With

804(b)(5),

respect

however,

admissible.

not

For example,

to

subparagraphs

every

sentence of

not every sentence

(A)-(C)

the

of

testimony

Rule

is

in that testimony

____________________

the record.
district

The transcripts of the proceedings indicate that the

court considered the testimony

determine whether
Tr. 2/7 13-16.

the requirements

as a whole

of Rule 804(b)(5)

in order to

were met.

-18-

can be said to have been offered as evidence of

a material fact.

For this reason, assuming, arguendo, that Williamson applies, the

________
__________

district court's

however,

considered

judge

ruling

"plain," as

was

erroneous.

required

plain, the error must

and prosecutor

were

by

The

Winter.
______

error

In

be "so 'plain'

derelict in

was

order

not,

to

be

that the trial

countenancing it,

even

absent

the

defendant's

timely

United States v. Frady, 456

_____________
_____

assistance

in

detecting

U.S. 152, 163 (1982).

The

it."

error in

this case was not sufficiently clear as to rise to the level of a

plain

error.

The error,

interpretation and

with

No

if it

application of

a hearsay exception that was

cases are

on point in

existed at

all, turns

Williamson to a
__________

on the

case dealing

not implicated in Williamson.

__________

this circuit,

and the

issue was not

raised at trial.

Furthermore, even if we

error,

the

defendant still

"substantial rights."

error

"must have

proceedings."

concluded that there was plain

must show

that the

error affected

In order to affect substantial rights, the

affected

the outcome

Olano, 507 U.S. at 734.

_____

of

the district

The analysis

court

is the same

as

"harmless

defendant

error"

rather than

persuasion with respect

instant

case has failed

the outcome of

analysis,

the

"Padova's testimony

to prejudice."

Id.
___

. .

very

-19-

Indeed,

"[i]t

bears the

to demonstrate that

a harmful error

that

Government who

the proceedings.

brief pursues only

except

is

burden of

Defendant in

the

the error affected

defendant-appellant's

argument and concludes

well

the

could have
___________

tipped

that

the

scales."

Appellant's

were to agree with

plain

this assertion, it is

error standard,

outcome.

We

Brief at 44 (emphasis added).

that

can find plain

the error

Even if we

not enough, under

the

could have changed

___________

the

error only if

the error must have

__________

done so.

Finally,

counsel

would

we address

defendant's claim

have undertaken

more

that Sposito's

vigorous and

extensive

cross-examination of Padova than did Marder's counsel.

We do not

dispute that it would have been better to have Padova testify and

be

subject

available, a

to

cross-examination.

fact defendant

does not

Given

that

dispute, the

he

was

not

question is

whether

matter

his previous testimony should have

goes to

guarantees

defendant

the question

of whether

of trustworthiness.

has failed

As

to persuade

been admitted.

there

we have

This

were sufficient

already discussed,

this court that

the district

court's conclusion that such guarantees existed was plain error.

III.
III.

For

the

foregoing

Conclusion
Conclusion

reasons,

we

affirm the
affirm
______

court's rulings on the STA claim and the evidence claim.

district

-20-