United States v. Check

582 F.2d 668 (2d Cir. 1978)



Aside from the relatively small number of prior statements that are admissible under Fed. R. Evid. 801(d)(1)(B), a witness's prior statements offered to prove the truth of the matters asserted therein are not immunized from the proscriptive effect of the hearsay rule.


Sandy Check, the defendant, was a police officer who was convicted of possession of heroin with intent to distribute the drug, including the allegation of actual distribution of the drug, and conspiracy to distribute narcotic-drug, controlled substances. During trial, the government’s primary evidence was presented through the testimony of Stephen Spinelli, a detective in the New York City Police Department who had been assigned to investigate allegations regarding Check’s involvement in illegal narcotics trafficking. Operating as an undercover agent Spinelli was initially introduced to one William Joseph Cali, a confidential informant who knew Check and who agreed to introduce Spinelli to Check so that Spinelli as a poseur-buyer could either substantiate or disprove the serious allegations of criminal conduct which had been made against Check. In his testimony, Spinelli recounted his encounter with Check which was facilitated by Cali. At the conclusion of the trial, the district court entered judgment convicting Check with the crime charged. On appeal, Check alleged that significant portions of Detective Spinelli's testimony were inadmissible hearsay which the government should not have been permitted to offer against him at trial. In its counter-claim, the government contended that Check has waived any sound objection he might have on hearsay grounds for he supposedly failed to advance such grounds in a timely fashion at trial. Alternatively, the government claimed that, assuming arguendo that Check did preserve the issue for consideration on appeal, the district court nonetheless did not err in admitting those portions of Spinelli's testimony which Check claims are objectionable on hearsay grounds.


Were significant portions of the detective's testimony inadmissible hearsay, and as such, prejudicial in its use against defendant during trial?




The appellate court held that Spinelli’s testimony, narrating both his and the intermediary's statements, was hearsay not admissible under any exceptions set forth in Fed. R. Evid. 801, and that Check was substantially prejudiced by the testimony. The court further found that Check did not waive his right to raise the matter on appeal, because his attorney frequently and with increasing precision, objected to the introduction of the testimony. In view of the district court's plain error affecting substantial rights of the defendant, the judgment was reversed. The court offered that the death threat testimony introduced by the prosecutor also might have been erroneously admitted. The court reversed the judgment and remanded the case for a new trial.

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