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The 2nd U.S. Circuit Court of Appeals Wednesday affirmed two criminal convictions in its first two opinions to interpret a landmark U.S. Supreme Court ruling on a defendant’s right to confront his accuser. In one, U.S. v. Saget, 03-1200, the appeals court found that statements made by a co-conspirator to a confidential informant were not testimonial under the Court’s ruling in Crawford v. Washington, 124 S.Ct. 1354. In the other, U.S. v. McClain, 02-1093, the court ruled that the plea allocutions of three co-conspirators were testimonial and should not have been admitted at a trial to help convict two men of money laundering and wire fraud. However, the court said, the admission was harmless error. The defendants’ convictions were well-supported and should be upheld, the panel ruled. Under Crawford, a testimonial statement cannot be admitted at trial unless the defendant has had an opportunity to challenge it through cross-examination. Though the Supreme Court identified grand jury testimony, police interrogations and plea allocutions as testimonial in nature, it did not provide a comprehensive definition of “testimonial,” leaving that work for lower courts. Saget and McClain were argued on consecutive days in March, a week after Crawford was decided. The same panel heard both cases, and Judge Sonia Sotomayor wrote both opinions. Saget dealt with James Saget, who was convicted of firearms trafficking charges in a jury trial before Southern District Judge Lewis A. Kaplan. Saget and a co-conspirator, Shawn Beckham, allegedly bought guns in Pennsylvania so they could sell them illegally in New York. They both had criminal records and paid other individuals, usually female exotic dancers, to buy the weapons for them. In May and June 2001, Beckham spoke twice to a friend about the scheme in hopes that he would join them. The friend was a confidential informant and taped both conversations. Beckham was indicted separately and pleaded guilty to gun trafficking. He did not appear at Saget’s trial, but prosecutors used portions of the taped conversations in which Beckham implicated both himself and Saget. Judge Kaplan ruled that the conversations were admissible as statements against Beckham’s penal interest because they implicated Beckham along with Saget. Saget originally appealed Kaplan’s determination by arguing that the statements were insufficiently reliable under Ohio v. Roberts, 448 U.S. 56 (1980), and violated the Confrontation Clause. Roberts established that testimonial statements could be admitted at criminal trials without cross-examination, if courts deemed them to be sufficiently reliable. When Crawford was decided and Roberts overturned, the 2nd Circuit asked the parties to provide supplemental briefs before argument. Saget contended that the statements were testimonial and should not have been admitted because he had no opportunity for cross-examination. While Crawford clearly overruled Roberts when dealing with testimonial statements, the 2nd Circuit said Wednesday, it left “somewhat less clear the status of the Roberts line of cases insofar as these decisions deal with statements that are not testimonial in nature.” The court noted that at least two Supreme Court justices — Justice Scalia, who wrote Crawford, and Justice Clarence Thomas — have indicated that they would overrule Roberts entirely and hold that the Confrontation Clause places no limits on the admission of nontestimonial statements (see White v. Illinois, 502 U.S. 346, 1992). Still, the 2nd Circuit said, the Court in Crawford declined to overturn White, leaving Roberts intact as a means to analyze non-testimonial statements. “While the continued viability of Roberts with respect to nontestimonial statements is somewhat in doubt, we will assume for purposes of this opinion that its reliability analysis continues to apply to control nontestimonial hearsay, and that our precedents applying the Roberts analysis to such statements retain their force,” Judge Sotomayor wrote. The court concluded that the statements against Saget were not testimonial, in large part because they were not knowingly given to a confidential informant. It also agreed with Kaplan that the statements were adequately reliable. SECOND CASE In McClain, Robert Martins and Antonio Guastella were convicted of money laundering and wire fraud charges. At a 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 2nd Circuit ruled that they should not have been allowed at trial unless the co-defendants who made the statements were available for cross-examination. The admission, however, was harmless, since the evidence of the defendants’ guilt “was overwhelming,” Judge Sotomayor wrote. Judges Robert D. Sack and Reena Raggi concurred on both opinions. Marilyn S. Reader of Larchmont, N.Y., represented Saget. She was opposed by Assistant U.S. Attorney Anthony S. Barkow. Alexei Schacht represented Martins. Bobbi C. Sternheim represented Guastella. They were opposed by Assistant U.S. Attorney Gary Stein.

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