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Given that a person ordinarily will respond to an incriminatory or defamatory statement with a denial, or at least with some indication that he objects to the statement as untrue, it is within the district court's discretion to conclude that if it is reasonably probable that a defendant would have responded in some way if his cohort's incriminatory statement was false.
The government charged defendant Michael Aponte with conspiracy to rob a postal truck and of aiding and abetting the robbery of a postal truck. The witness, William Mogg, testified that on the day after the robbery, Mogg, Aponte, Wilfredo Aguilar, and a person named Irving met in a hotel room, where Aguilar claimed to have robbed a post office truck and that Aguilar stated that Aponte "was in a National car." Mogg testified that Aponte said nothing in response to Aguilar's statement. Defendant Aponte was convicted of the crimes charged. Defendant appealed under contentions that the admission of a cohort's prior statement as a non-hearsay adoptive admission violated his rights to a fair trial and to confront his accuser, and that the increase of his base level offense for obstruction of justice was error.
The court affirmed the judgment of the district court. According to the court, when defendant was in a hotel room with several cohorts and failed to respond to one of the cohort's statements that implicated defendant in the crime, the district court had discretion to conclude that it was reasonably probable that defendant would have responded if the statement was false. Such silence constituted an admission. Additionally, defendant's failure to appear after a verdict was returned constituted an obstruction of justice sufficient to support the increase in the base level offense, pursuant to U.S. Sentencing Guidelines Manual § 3C1.1. Intentional flight, and not a willful purpose to obstruct justice, was all that was required.