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The 2d U.S. Circuit Court of Appeals last week affirmed two criminal convictions in light of last term’s U.S. Supreme Court ruling on a defendant’s right to confront his accuser. U.S. v. Saget, No. 03-1200, and U.S. v. McClain, No. 02-1093. Under Crawford v. Washington, 124 S. Ct. 1354, a testimonial statement cannot be admitted at trial unless the defendant has had an opportunity to challenge it through cross-examination. Saget and McClain were argued on consecutive days in March. The same panel heard both cases, and Judge Sonia Sotomayor wrote both opinions. James Saget and Shawn Beckham allegedly bought guns in Pennsylvania to sell in New York. In 2001, Beckham tried to entice a friend into the scheme. The friend, an informant, taped their conversations. Beckham was indicted and pleaded guilty to gun trafficking. At Saget’s trial, prosecutors introduced the taped conversations as evidence. Southern District of New York Judge Lewis A. Kaplan ruled that the conversations were admissible because they went against Beckham’s penal interest. Saget appealed, arguing that the statements were insufficiently reliable under Ohio v. Roberts, 448 U.S. 56 (1980). Roberts established that testimonial statements can be admitted without cross-examination, if courts deem them sufficiently reliable. In light of Crawford, Saget also contended that the statements were testimonial and should not have been admitted without cross-examination. The 2d Circuit said that, while Crawford clearly overruled Roberts on the issue of testimonial statements, “we will assume for purposes of this opinion that [ Roberts'] reliability analysis continues to . . . control nontestimonial hearsay,” Sotomayor wrote. The statements against Saget were not testimonial because they were not knowingly given to an informant and that they were adequately reliable, he wrote. In McClain, Robert Martins and Antonio Guastella were convicted of money laundering and wire fraud. At trial before Southern District Judge Shira Scheindlin, prosecutors introduced the plea allocutions of three co-conspirators. Though the pleas did not name Martins and Gaustella, they helped to establish elements of the conspiracy. Such pleas are cited in Crawford as testimonial, and the 2d Circuit ruled that they were inadmissible unless the co-defendants who made the statements can be cross-examined. The admission, however, was harmless, since evidence of the defendants’ guilt “was overwhelming,” Sotomayor wrote.

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