hearsay objection

On August 1, 1991, San Diego Narcotics Task Force agents arrested Gordon Shuster after discovering a methamphetamine laboratory at his residence in Rainbow, California. Shuster agreed to cooperate with the agents. He placed a call to respondent Gordon Mezzanatto's pager a few hours later. When Mezzanatto returned the call, Shuster told him that a friend wanted to purchase a pound of methamphetamine for $13,000. Shuster arranged to meet Mezzanatto later that day. At the meeting, Shuster introduced an undercover officer as his friend. Mezzanatto produced a brown paper package containing approximately one pound of methamphetamine from his car. He also presented a glass pipe containing methamphetamine residue and asked the officer if he wanted to take a hit. The officer gave a prearranged arrest signal after leaving the car to retrieve the money. Mezzanatto was arrested and charged with possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On October 17, 1991, Mezzanatto and his attorney asked to meet with the prosecutor to discuss cooperating with the Government. At the beginning of the meeting, the prosecutor stated that Mezzanatto would have to agree that any statements made could be used to impeach contradictory testimony at trial if the case proceeded that far. Mezzanatto conferred with counsel and agreed to proceed under those terms. He then admitted knowing the package contained methamphetamine while claiming he had dealt only in ounce quantities and had not visited Shuster's residence for at least a week. The Government confronted Mezzanatto with surveillance evidence showing his car on Shuster's property the day before the arrest. It terminated the meeting for failure to provide completely truthful information. Mezzanatto was later tried on the charge. He took the stand in his own defense. He testified that he thought Shuster used the laboratory to manufacture plastic explosives for the CIA and that he did not know the package contained methamphetamine. Over defense objection, the prosecutor cross-examined Mezzanatto about inconsistent statements from the October 17 meeting. The prosecutor called an attending agent to recount those statements. The jury found Mezzanatto guilty. The District Court sentenced him to 170 months in prison. A Ninth Circuit panel reversed over Chief Judge Wallace's dissent in 998 F. 2d 1452 (1993). The Supreme Court granted certiorari because the decision conflicted with the Seventh Circuit's ruling in United States v. Dortch, 5 F. 3d 1056 (1993).

The litigation arose from the July 13, 1982 crash of a Navy T-34C Turbo-Mentor aircraft at Middleton Field, Alabama, during touch-and-go exercises. Lieutenant Commander Barbara Ann Rainey, a flight instructor, and her student Ensign Donald Bruce Knowlton were killed when the plane banked sharply right after a premature left turn, lost altitude, and crashed. The surviving spouses of the pilots filed a product liability action against Beech Aircraft Corporation, the manufacturer, and Beech Aerospace Services, Inc., which serviced the plane, alleging that a defect in the fuel control system caused an engine rollback and loss of power. Because the aircraft was destroyed and there were no survivors, the cause of the accident could not be determined from the available evidence. The defense presented an investigative JAG Report prepared by Lieutenant Commander William Morgan pursuant to Navy authority. The report contained sections on findings of fact, opinions, and recommendations, including statements that the engine was operating at reduced power at impact and that the most probable cause was the pilots' failure to maintain proper interval, while noting the possibility of rollback. Five or six months after the accident, plaintiff John Rainey, the deceased pilot's husband and a Navy flight instructor, sent a letter to Morgan outlining his own investigation and concluding that the most probable cause was a loss of useful power due to a pneumatic sensing or fuel flow malfunction. At trial, the defense called Rainey as an adverse witness and questioned him about portions of the letter concerning his wife's attempt to cancel the flight and a hard right turn by the aircrew. On cross-examination, the court sustained an objection to a question asking whether Rainey had stated in the letter that rollback was the most probable primary cause. After a two-week trial, the jury returned a verdict for the defendants. A panel of the Eleventh Circuit reversed, and on rehearing en banc the court divided evenly on one issue while unanimously holding that the district court erred in restricting cross-examination. The Supreme Court granted certiorari.

On July 31, 2003, Eric Besore contacted DEA task force officer Steven Thibodeau to arrange a controlled purchase of drugs from an individual nicknamed Hoot. Besore had previously agreed to assist Thibodeau with drug investigations in exchange for help dismissing a criminal speeding charge. Thibodeau and other agents gave Besore $1,000, equipped him with an electronic transmitting device resembling a pager, searched him and his vehicle, and sent a surveillance team including Thibodeau and Barry Kelly to monitor the transaction in Westbrook, Maine. Besore drove to a parking lot at King and Brown Streets. Kelly parked nearby to record transmissions from the device while Thibodeau maintained contact by cell phone. After a uniformed officer stopped a nearby vehicle, Besore moved his car up the street. Thibodeau later observed Besore in the driver's seat of his car with a black male later identified as Dwayne J. Anderson in the passenger seat. Kelly saw Anderson exit Besore's car and enter a green Subaru parked behind it. Besore then drove away and met Thibodeau, handing him a plastic bag containing a substance that field-tested positive for cocaine base. Thibodeau placed the substance in evidence envelope 159263, locked it in the DEA safe, and mailed it to the DEA laboratory in New York. Chemist Brian O'Rourke later confirmed the substance was cocaine base weighing 6.1 grams. On October 23, 2003, a grand jury indicted Anderson for knowingly and intentionally distributing five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). A two-day jury trial began on April 7, 2004, in the District of Maine. At trial the government introduced a copy of the recording from Besore's transmitting device along with a transcript prepared by the prosecutor. Kelly authenticated the transcript by comparing it to the tape. The court gave limiting instructions that the tape was the evidence and any discrepancies must be resolved in favor of the tape. Besore did not appear despite a government subpoena. The defense requested a missing witness instruction, which the court denied. The court also excluded evidence of Besore's prior felony conviction for tampering with a witness during cross-examination of Thibodeau and admitted the drugs over a chain-of-custody objection. The jury convicted Anderson after nearly two hours of deliberation. The PSR calculated a base offense level of 26 based on 6.1 grams of crack cocaine. It classified Anderson as a career offender, though the government later conceded he lacked the required predicate offenses and should be placed in criminal history category III. At sentencing on April 27, 2005, the district court found the substance was crack cocaine, set the Guidelines range at 78 to 97 months, and imposed a sentence of 78 months' imprisonment, five years of supervised release, and a $100 assessment. Anderson timely appealed both conviction and sentence.