Mail fraud, wire fraud, conspiracy
was charged with mail fraud, wire fraud and conspiracy from an
alleged telemarketing scheme.
Jury found Mornan guilty.
He operated out of Canada and placed advertisement in United
States newspapers offering to high-risk borrowers.
Fill out form, Purchase Life Insurance
Once a customer filled out a form, a closer would instruct
them that they would have to purchase life insurance to secure
The insurance premium would be returned upon repayment of the
The police caught Mornan and confiscated a list of US
Statement to Police
The Canadian authorities also interviewed Mornan, who stated
that he was an "assistant
manager/closer" and that he and Card
shared the role of
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
Government presented testimony of multiple law enforcement.
12 individual victims testified.
Relevant to the appeal
Althea Burton, the cousin of Michael Willams, who owned and
operated Icon Cheque Cashing Services, Inc. ("Icon") in Ontario.
Burton worked for her cousin at Icon from May 2000 to January
Government attempted to establish that Mornan used
Icon to cash money orders
made out to several "insurance companies."
Burton gave a videotaping
Burton Memory Problems
Burton indicated that she could no longer remember the
particulars of her employment at Icon.
Statement to Prosecutor
Burton's made a statement to the prosecutor and United States
Postal Inspector Michael Hartman on September 12, 2001
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
Burton stated that she did not remember the particulars of the
September 2001 statement either.
Denied evidence as past recollection.
Initially denied, but later admitted the statement after
watching the videotape as past inconsistent statement.
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.
Prior statement did not meet the recruitment of Rule 803(5).
Because Burton neither adopted NOR reviewed the statement prior
to her purported memory loss.
Agreed with Mornan.
Requires the witness to have either
Made the record herself, OR
To have reviewed AND adopted the statement, at a time when the
matter it concerned was fresh in her memory.
Memorandum written by another
memorandum written by another is
admissible as the witness's recorded recollection
if the witness can testify
That the witness checked the
memorandum when the matter it concerned was
fresh in his or her
That the witness then knew it to be
In this case
The statement was recorded
by someone other than the declarant; accuracy may be
established through the testimony of the person who recorded the
In this case (Recording was made by a typist)
Typist attested to be an officer examiner.
Court Government did not .
Government did not show
that Burton either reviewed or adopted the
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.
Burton also could not attest
to the accuracy of her statement during her
The Government did not call the
official examiner as a witness to establish that the
recording accurately reflected Burton's oral statement.
Government attempt indicia of
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
Held that "Rule 803(5) does not specify any particular method
of establishing the knowledge of the declarant nor the accuracy
of the statement."
- Porter and Parker are distinguishable
The Government did not show that Burton made, reviewed, or
adopted the statement at issue here.
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.