United States v. Mornan, 413 F.3d 372 

U.S. Court of Appeals for the Third Circuit

2005

Chapter

6

Title

Hearsay

Page

233

Topic

803(5) Recorded Recollection

Quick Notes

Defendant was charged in an 18-count indictment with mail fraud, wire fraud, and conspiracy arising from an alleged telemarketing scheme. A jury found him guilty on 15 counts.  Mornan challenged the admissibility of a prior statement of an individual who worked at a check cashing service.  She had memory loss, did not review or adopt her past videotape deposition and statements.

Court -  Porter and Parker are distinguishable

o         The Government did not show that Burton made, reviewed, or adopted the statement at issue here.

o         In Porter, the witness reviewed and signed the written statement at issue on each page, and in Parker, the witness wrote and signed the statement himself.

803(5) Recorded recollection.

         A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

         If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

803(5) Requirements

o         Requires the witness to have either

o    Made the record herself, OR

o    To have reviewed AND adopted the statement, at a time when the matter it concerned was fresh in her memory.

Memorandum written by another

o         A memorandum written by another is admissible as the witness's recorded recollection if the witness can testify

(1)   That the witness checked the memorandum when the matter it concerned was fresh in his or her memory, AND

(2)   That the witness then knew it to be correct.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether it is necessary to show that a past statement was made by or adopted by the declarant?  Yes.

Procedure

District

o         Denied evidence as past recollection.

o         Initially denied, but later admitted the statement after watching the videotape as past inconsistent statement.

Circuit

o         The court affirmed the district court's evidentiary rulings and the conviction, vacated the sentence, and remanded for re-sentencing

Facts

Discussion

Key Phrases

Rules

Pl United States

Df Mornan

Mail fraud, wire fraud, conspiracy

o          Mornan was charged with mail fraud, wire fraud and conspiracy from an alleged telemarketing scheme.

o         Jury found Mornan guilty.

Scheme

o         He operated out of Canada and placed advertisement in United States newspapers offering to high-risk borrowers.

Fill out form, Purchase Life Insurance

o         Once a customer filled out a form, a closer would instruct them that they would have to purchase life insurance to secure the loan.

o         The insurance premium would be returned upon repayment of the loan.

o         The police caught Mornan and confiscated a list of US newspapers.

Statement to Police

o         The Canadian authorities also interviewed Mornan, who stated that he was an "assistant manager/closer" and that he and Card shared the role of office manager.

o         He also stated that his job was to answer phones, take customers' information, and tell them that their loan application had been accepted

Trial and Sentencing

o         Government presented testimony of multiple law enforcement.

o         12 individual victims testified.

Relevant to the appeal

o         Althea Burton, the cousin of Michael Willams, who owned and operated Icon Cheque Cashing Services, Inc. ("Icon") in Ontario.

o         Burton worked for her cousin at Icon from May 2000 to January 2001.

Videotape Deposition

o         Government attempted to establish that Mornan used Icon to cash money orders made out to several "insurance companies."

o          Burton gave a videotaping deposition.

Burton Memory Problems

o         Burton indicated that she could no longer remember the particulars of her employment at Icon.

Statement to Prosecutor

o         Burton's made a statement to the prosecutor and United States Postal Inspector Michael Hartman on September 12, 2001

o         Where she identified Mornan as the individual who routinely cashed money orders at Icon that were made out to several "insurance companies."

Burton Memory Problem

o         Burton stated that she did not remember the particulars of the September 2001 statement either.

District Court

o         Denied evidence as past recollection.

o         Initially denied, but later admitted the statement after watching the videotape as past inconsistent statement.

Jury

o         Jury found Mornan guilty on 11 counts of mail fraud, three counts of wire fraud, and one count of conspiracy to commit mail fraud and wire fraud. The jury found Mornan not guilty on two counts of mail fraud and one count of wire fraud.

Analysis

Mornan Argued

o         Prior statement did not meet the recruitment of Rule 803(5).

o         Because Burton neither adopted NOR reviewed the statement prior to her purported memory loss.

Court Agreed with Mornan.

803(5) Requirements

o         Requires the witness to have either

o    Made the record herself, OR

o    To have reviewed AND adopted the statement, at a time when the matter it concerned was fresh in her memory.

Memorandum written by another

o         A memorandum written by another is admissible as the witness's recorded recollection if the witness can testify

(1)   That the witness checked the memorandum when the matter it concerned was fresh in his or her memory, AND

(2)   That the witness then knew it to be correct.

Court In this case

o         The statement was recorded by someone other than the declarant; accuracy may be established through the testimony of the person who recorded the statement.

Court In this case (Recording was made by a typist)

o         Typist attested to be an officer examiner.

Court Government did not .

o         Government did not show that Burton either reviewed or adopted the examiner's recording.

o         The writing does not bear Burton's signature to indicate that she reviewed it and attested to its accuracy at the time the record was made.

o         Burton also could not attest to the accuracy of her statement during her current testimony.

o         The Government did not call the official examiner as a witness to establish that the recording accurately reflected Burton's oral statement.

Court Government attempt indicia of reliability

o         The Government attempts to establish accuracy in this case by pointing to various indicia of reliability, such as the fact that Burton was under oath and was promised that the statement would not be used against her.

The Government relies on United States v. Porter

o         Held that "Rule 803(5) does not specify any particular method of establishing the knowledge of the declarant nor the accuracy of the statement."

Court -  Porter and Parker are distinguishable

o         The Government did not show that Burton made, reviewed, or adopted the statement at issue here.

o         In Porter, the witness reviewed and signed the written statement at issue on each page, and in Parker, the witness wrote and signed the statement himself.

Court Holding

         Affirmed

Rules

803(5) Recorded recollection.

         A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

         If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

o    Only read to the fact-finder.

o    The document itself is not admissible unless offer by the opponent.

         Notes

o    It is presumed that event recorded at, or near, the time of the events are more reliable than those that are not.

         Requirements

o    The witness had person knowledge of the matter.

o    The witness now has insufficient recollection to enable the witness to testify fully and accurately.

o    The memorandum or record is shown to have been made or adopted by the witness when the matter was fresh in the witnesss memory; and

o    The memorandum or record is show to reflect that knowledge correctly.

         Caution

o    Do not confusion with rule 612, in which a document cause be used to refresh a witnesss memory.

Class Notes