
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1755                                    UNITED STATES,                                      Appellee,                                          v.                                   MICHAEL SPOSITO,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                     Coffin and Campbell, Senior Circuit Judges.                                          _____________________                                _____________________               Seth M. Kalberg, by appointment of the Court, for appellant.               _______________               Cynthia A. Young, Attorney, U.S. Department of Justice, with               ________________          whom Donald K.  Stern, United States Attorney,  Ernest S. DiNisco               ________________                           _________________          and James D. Herbert, Assistant United  States Attorneys, were on              ________________          brief for appellee.                                 ____________________                                  February 18, 1997                                 ____________________                    TORRUELLA,  Chief  Judge.   Defendant-appellant Michael                    TORRUELLA,  Chief  Judge.                                ____________          Sposito was convicted of illegal gambling and aiding and abetting          illegal gambling  in  violation of  18  U.S.C.    1955.   He  now          appeals  the district court's denial of his motion to dismiss for          violation of the  Speedy Trial  Act ("STA"), 18  U.S.C.     3161-          3167,  and the  district court's  admission into evidence  of the          prior  immunized testimony  of  Louis Padova  under the  residual          exception to the hearsay rule.                               I.  The Speedy Trial Act                               I.  The Speedy Trial Act                                   ____________________                    A.  Standard of Review                    A.  Standard of Review                    In   reviewing  an  STA   ruling,  we  examine  factual          questions under  a clear error standard  and legal determinations          de novo.  See United States v. Rodr guez, 63 F.3d 1159, 1162 (1st          _______   ___ _____________    _________          Cir.), cert. denied, 116 S. Ct. 681 (1995).                 ____________                    B.  The Legal Framework                    B.  The Legal Framework                    At  issue is 18 U.S.C.     3161 et  seq., which require                                                    ________          that:                      the  trial of a  defendant charged  in an                      information   or   indictment  with   the                      commission of an  offense shall  commence                      within seventy days  from the filing date                      (and making public) of the information or                      indictment,   or   from   the  date   the                      defendant has appeared before  a judicial                      officer of the court in which such charge                      is pending, whatever date last occurs.          18  U.S.C.   3161(c)(1); see also Henderson v. United States, 476                                   ________ _________    _____________          U.S. 321, 322  (1986).  If the defendant is  not brought to trial          within  the   seventy  day  time  period,   "the  information  or          indictment  shall be dismissed on  motion of the  defendant."  18                                         -2-          U.S.C.   3162(a)(2); see Rodr guez,  63 F.3d at 1162.   Not every                               ___ _________          day between the indictment  or appearance and the start  of trial          is  counted,  however.    Section  3161(h)  provides  a  list  of          circumstances in which the STA is tolled.                    The question  before us, therefore,  is whether seventy          countable  days  passed  between  the indictment  of  Sposito  on          April 13, 1994, and the start  of the trial on January  17, 1995.          There are  several periods of time  in dispute, but we  need only          consider the last  of these --  from December 1, 1994  to January          13,  1995.1  Defendant states that 41 countable days passed prior          to  December  1,  1994.   Because  we  find  that  there were  no          countable  days  from  December  1,  1994  to  January 13,  1995,          defendant's claim under the  STA must fail, regardless of  how we          would rule on the earlier periods.                    On November  30, 1994,  the previously  scheduled trial          date  of December 12 was  postponed indefinitely.   At that time,          the  government's  motion  in   limine  to  restrict  the  cross-          examination  of  certain  law  enforcement  witnesses,  filed  on          November 8, was  pending.   The motion in  limine was  eventually          heard  during the trial, with argument on the motion taking place          on January 31, 1995.  We must decide whether the motion in limine          tolled the STA clock from November 8 to January 13.                    Three   principal  sources   of  authority   frame  our          decision.   First,  there  is the  statute,  which requires  that                                        ____________________          1  Although  the trial started  on January 17, the  parties agree          that the filing of the January 13 motion to dismiss for violation          of the STA tolled the STA clock.                                         -3-          "delay resulting from any pretrial motion, from the filing of the          motion  through the conclusion of the hearing on, or other prompt          disposition of,  such motion" be  excluded from the  time counted          against  the STA.  18 U.S.C.   3161(h)(1)(F).  Congress chose not          to  include any  explicit exceptions  in the  statutory language.          Yet Congress was conscious of the possible need for more flexible          exclusion  requirements, as  demonstrated by  other parts  of the          statute.  For example, in section 3161(h)(8)(A), the Act excludes          periods  of delay resulting from a continuance, but only when the          trial  court sets forth, in  the record, its  reasons for finding          that "the ends of  justice served by taking such  action outweigh          the  best interest of  the public and  the defendant in  a speedy          trial."  18 U.S.C.   3161(h)(8)(A).                    Second, in  Henderson v.  United States, 476  U.S. 321,                                _________     _____________          327  (1986),  the  Supreme  Court held  that  "Congress  intended          subsection  (F)  to exclude  from the  Speedy Trial  Act's 70-day          limitation  all time  between  the filing  of  a motion  and  the          conclusion of  the hearing on that motion, whether or not a delay          in  holding that  hearing is  'reasonably necessary.'"   Id.   In                                                                   ___          Henderson,  a motion to suppress  was filed on  November 3, 1980,          _________          and a  hearing was  held on  March 25, 1981,  at which  the trial          court  "declined  to reach  a  final decision  because  it needed          further  information.  The court  did not receive  all filings in          connection  with the motion until December 15, 1981."  Id. at 332                                                                 ___          (citations omitted).  The  Court excluded all of this  time under          section 3161(h)(8)(F).  Id.                                  ___                                         -4-                    Finally,  we  are bound  by  our own  ruling  in United                                                                     ______          States  v. Rojo-Alvarez, 944 F.2d 959 (1st  Cir. 1991).  In Rojo-          ______     ____________                                     _____          Alvarez,  the government  filed a  motion in  limine on  March 8,          _______          1990.   On April 5, 1990,  the district court  reserved ruling on          the merits  of the  motion until  trial.   On appeal,  this court          stated that:                       [w]e do not believe  that a court  should                      put  off consideration  of  a motion  and                      exclude the time during which  the motion                      lies dormant.  However, when the court is                      presented with papers styled as a motion,                      whether it ultimately determines that the                      filing is a pretrial motion  or an 'other                      proceeding'  under  (J),  the   court  is                      entitled  to exclude at  least the period                      of time during which  it considers how to                      treat the filing.          Id. at  966.  The court  in Rojo-Alvarez disposed of  the case by          ___                         ____________          excluding the time between the filing of the  motion and the date          upon which it was  reserved.  The panel's language  regarding the          time a  motion lies  dormant did  not affect  the outcome  of the          case.2                    In the instant case, the government filed its motion in          limine on  November 8, 1994.   As  an initial matter,  motions in                                        ____________________          2   Cf. United States  v. Clymer, 25  F.3d 824, 829-30  (9th Cir.              ___ _____________     ______          1994)  (finding that  time  after the  district court  explicitly          postponed ruling  on the  relevant motion  until after the  trial          must be counted against the STA clock); United States v. Gambino,                                                  _____________    _______          59 F.3d  353, 357-59 (2d Cir. 1995) (ruling that the STA clock is          "not tolled  when the  postponement  of a  pretrial motion  until          after trial does not effect a trial court's ability to proceed"),          cert. denied, 116 S. Ct.  1671 (1996).  But see United  States v.          ____________                            _______ ______________          Riley,  991 F.2d 120,  123 (4th  Cir. 1993)  (ruling that  when a          _____          hearing on a pretrial  motion is deferred until after  trial, all          of the time from  the filing of the motion  until its disposition          is excluded).                                         -5-          limine  are  "pretrial  motions"  for  the  purposes  of  section          3161(h)(1)(F), implying  that the filing  of such a  motion tolls          the STA clock.   See id.; see also United  States v. Santoyo, 890                           ___ ___  ________ ______________    _______          F.2d  726, 728 (5th Cir. 1989); United States v. Johnson, 32 F.3d                                          _____________    _______          304, 306 (7th Cir. 1994).  The motion was not heard until January          31, 1995, well  after the start of trial.   Between the filing of          the  motion and the trial date, the  court made no mention of the          motion in limine.   Specifically, it did not, at  any time, state          that it considered the motion "dormant."                     Defendant-appellant  contends  that the  district court          implicitly  relegated  the  motion  to  dormant  status  when  it          postponed the  trial indefinitely.   He argues  that "[u]pon  the          issuance by the Court on November 30 of the Notice cancelling the          December 12 trial date without  the setting of a new trial  date,          and because of that Notice, it was then apparent that the Court's          other business and  or convenience  had put the  Sposito case  on          hold."  Appellant's Brief at 25.  Appellant then appeals to Rojo-                                                                      _____          Alvarez for  the proposition that  time during which  motions lie          _______          dormant is to be counted against the STA clock.                    We disagree with  appellant's claim.  In  our view, the          motion was  never relegated to  dormant status for  STA purposes.          The  order postponing  the trial  read, in  its  entirety, "[t]he          trial scheduled to begin December 12, 1994 has been canceled.  It          will  be rescheduled for a future date  to be advised."  District          Court  Order of Cancellation, November  30, 1994.   No reason was                                         -6-          given for the postponement  and there was no suggestion  that the          motion in limine had been reserved until trial.3                    To  find that  the  motion was  dormant, therefore,  we          would have to rely on speculative inferences about the statements          and actions  of the lower  court.  We decline  to do so.   We are          unwilling to  adopt the position that appellate courts should sit          in review of the day-to-day operation of district courts in order          to  determine  when  a  district  court's  decision  to  put  off          consideration of a motion makes that motion "dormant" and when it          does  not.   District courts  are busy  and must  constantly make          scheduling decisions with  respect to the many  matters for which          they are responsible.  We are ill equipped to second guess  these          decisions.  There is  no reliable way for  an appellate court  to          divine  the  intent  of the  district  court  with  respect to  a          particular motion or its docket in general.  Rather than open the          door  to appeals that ask this court to  read the tea leaves of a          trial's  scheduling orders,  we will  only  look to  the explicit          statements of the lower court.                    Our ruling today is also based on our interpretation of          the STA and Henderson.  On the one hand, neither of these sources                      _________          suggests  that dormant  motions fail  to trigger  excludable time                                        ____________________          3  Appellant also points to the district court's remarks, made on          the first day of trial, in which the court referred to the motion          in limine,  stating, "I have been  planning to have  a hearing on          that  in connection with the trial  . . . .   I think holding the          motion to resolve once I  have found that there was not  going to          be  a plea,  and apparently  there won't  be, is  consistent with          [Henderson]."   However one may interpret  these remarks, they do           _________          not amount to an  explicit relegation of the motion  in limine to          dormant status.                                         -7-          under subsection (F).  On the other hand, we recognize that there          may be sound policy reasons for an exception to subsection (F) in          the case of dormant motions.  Because the statute does not itself          create  such an  exception, however,  and because  Henderson held                                                             _________          that even  unreasonable delays  shall be excluded,  any exception          for dormant motions should  at the very least be  drawn narrowly.          We  do not  believe that an  exception for motions  deemed, by an                                                              ______          appellate  court,  to have  been  dormant,  without any  explicit          indication  to  that  effect  by the  district  court,  would  be          consistent with the strong language of the STA and Henderson.                                                             _________                    Furthermore,  from the  point of  view of  an appellate          court,  there does  not  appear to  be  a principled  distinction          between a motion that is dormant and one for which  the period of          delay  prior to hearing is unreasonable.  In other words, finding          a motion to have been dormant without any language to that effect          in the record will often be  similar to concluding that there has          been  unreasonable delay.    Henderson has  established that  all                                       _________          delay,  even if unreasonable, is excluded.  To count time against          the  STA clock  on  the ground  that  the motion  was  implicitly          relegated to dormant status, therefore,  would be contrary to the          spirit of Henderson.                    _________                    We  hasten to add that this opinion should not be taken          either  to criticize or  to support the  language in Rojo-Alvarez                                                               ____________          concerning dormant motions.   See Rojo-Alvarez, 944 F.2d at  966.                                        ___ ____________          Our  holding only extends  to the question of  whether or not the          district  court  reserved  ruling  on  the  motion  or  otherwise                                         -8-          relegated the motion to dormant status.  We do not comment in any          way on the  implications, for  Speedy Trial Act  purposes, of  an          explicit ruling that a motion  is dormant or that the court  will          reserve ruling on the motion.                    As a result of our ruling,  the 43 days from December 1          to January  13 are not counted for STA purposes.  In light of the          fact  that appellant claims only 41 days were counted against the          STA clock prior  to December  1994, our finding  implies that  we          must affirm the district court's ruling on the STA issue.               ______                         II.  The Admission of Evidence Claim                         II.  The Admission of Evidence Claim                              _______________________________                    Defendant-appellant  next  alleges  that  the  district          court erred  in admitting into  evidence the  prior testimony  of          Louis  Padova.   Padova had  testified in  October 1992,  under a          compulsion and immunity order, at the trial of Arthur Marder, who          was  accused of  illegal  gambling.   At  Marder's trial,  Padova          testified that Marder had told him that he was paying everyone --          the  implication   being  that  Marder  paid   off  local  Revere          politicians in order to protect his illegal video poker business.          It was alleged that these payments were made via Sposito.                    At Sposito's  trial, Padova  refused  to testify,  even          with immunity, and was  found in contempt.  The  government moved          to admit Padova's  testimony from  the prior Marder  trial.   The          district court found Padova to be unavailable  within the meaning          of Federal  Rule of  Evidence 804(a)(2)  and  found the  previous          testimony  to  be  admissible  under  Federal  Rule  of  Evidence          804(b)(5).  Appellant contests the Rule 804(b)(5) ruling.                                         -9-                    The  proper  interpretation  of the  Federal  Rules  of          Evidence is a question of law and is reviewed de novo, see Texaco                                                        _______  ___ ______          Puerto  Rico v. Department of Consumer Affairs, 60 F.3d 867, 874-          ____________    ______________________________          75  (1st Cir. 1995); Hathaway  v. Coughlin, 99  F.3d 550, 555 (2d                               ________     ________          Cir.  1996); United States  v. Medina-Estrada,  81 F.3d  981, 986                       _____________     ______________          (10th  Cir.  1996),  but the  application  of  Rule  804(b)(5) is          reviewed  under an  abuse-of-discretion  standard.  See  Cook  v.                                                              ___  ____          United States, 904 F.2d 107, 111 (1st Cir. 1990).          _____________                    In  ruling on  the question,  the district  court found          "that  the testimony  relates to a  material fact  whether Arthur          Marder was indeed paying off politicians to obtain protection for          his video  poker machine  business in Revere.   If  that fact  is          proven,  it increases the likelihood that he was paying off those          politicians  through Mr. Sposito."   2/7 Tr. 15.   The court also          found  that "the  testimony of  Padova is  more probative  on the          point  of  what  Arthur Marder  said  to  Padova  than any  other          testimony the Government can procure."  2/7 Tr. 16.                    Rule 804(b)(5) requires that:                      (A)  the statement is offered as evidence                      of a material fact;                      (B)  the statement  is more  probative on                      the point  for which  it is offered  than                      any  other  evidence which  the proponent                      can  procure through  reasonable efforts;                      and                      (C) the general  purposes of these  rules                      and the interests of justice will best be                      served by admission of the statement into                      evidence.                                         -10-          Fed. R. Evid.  804(b)(5)(A), (B),  (C).4  Reading  the first  two          subparagraphs together,  defendant argues,  requires that  (B) be          read  as if it  included the words  "of material  fact" after the          word  "point."   Thus, the  defendant alleges  that  the district          court  erred by  not directing  its inquiry  to the  "question of          whether Marder's  statement to Padova  was more probative  on the          issue of whether Marder was paying off politicians than any other          available testimony."  Appellant's Brief at 35.                    Before  proceeding, we  note that  defendant's argument          rests on the  assumption that the question of what Marder said to          Padova is  not  a material  fact.   If  it  is a  material  fact,          Padova's testimony  would be admissible,  even under  defendant's          preferred interpretation of  the rule.  To conclude, as defendant          does, that the question of whether Marder  was paying politicians          is   material fact  and yet  the fact that  he stated  as much to          Padova is not a material fact is an exceedingly fine distinction,          and not one upon which the question of admissibility should turn.                    The  relationship between subparagraphs  (A) and (B) of          Rule  804(b)(5) appears to be a matter of first impression within          the circuit.   We begin, as  always, with an  examination of  the          plain  language of the rule.   Subsection (B)  requires only that          the statement be  more probative on  "the point  for which it  is          offered."    The  subparagraph  does not  include  the  words "of          material fact" as advocated  by defendant.  The drafters  of Rule                                        ____________________          4  In  addition to  these requirements, the  statement must  also          have "equivalent  guarantees of trustworthiness."   Fed. R. Evid.          804(b)(5).                                         -11-          804(b)(5) separated the "material fact" element of the test found          in  subparagraph  (A)  from   the  "more  probative"  element  of          subparagraph (B).   Were the  rule intended to  have the  meaning          advocated  by defendant,  it could  have been  written  with much          greater  clarity.  Had the  drafters wanted to  include the words          "of material fact" following the word "point" in subparagraph (B)          they obviously could  have done  so.  Furthermore,  by doing  so,          they  would have eliminated the need for subparagraph (A) because          the necessity of a material fact would be explicit in the revised          subparagraph (B).  As written, however, the plain language of the          rule does not  require that the issue  on which the statement  is          most probative be a  material fact; it  requires only that it  be          probative on the point "for which it is offered."   Fed. R. Evid.          804(b)(5)(B).                    Furthermore,  subparagraph (A)  requires only  that the          statement be offered as evidence of a material fact.  It need not                                  ________          itself be  a material fact.   If we were to  import language from          subparagraph (A) to subparagraph (B), it would be more natural to          add the words "of evidence" after the word "point," such that (B)          read, "the statement is  more probative on the point  of evidence                                                                ___________          for which  it is  offered than any  other evidence."   Under this          interpretation, appellant's claim would fail.  The district court          established  that the statement  was offered  as evidence  of the          fact that Marder was  paying off politicians and that  the latter          was a point of material fact.  The statement is more probative on          that point  of evidence --  what Marder told  Padova -- than  any                                         -12-          other  evidence   that  the  government  could   procure  through          reasonable efforts.                    Defendant, perhaps recognizing that the language of the          rule  is  not favorable  to  his argument,  turns  to legislative          history.   He  points to  language in  the Senate  Report to  the          effect that the residual hearsay exception should be used rarely.          S.  Rep. No.  1277,  93d  Cong.,  2nd  Sess.  (1974).    Our  own          examination of the legislative history, however, reveals that the          inclusion  of the  residual  hearsay exception  was intended  for          cases,  such as  the  one before  us,  that "have  guarantees  of          trustworthiness   equivalent  to  or   exceeding  the  guarantees          reflected  by the [other Rule  804(b)] exceptions, and  to have a          high degree of prolativeness [sic]."  Id.                                                ___                    In  order to illustrate  the type of  evidence that the          Senate  Committee felt should be  admitted but that  may not fall          within one of  the other  hearsay exceptions,  the Senate  Report          cited Dallas  County v.  Commercial Union Assurance  Company, 286                ______________     ___________________________________          F.2d 388 (5th Cir. 1961).   S. Rep. No.  1277.  At issue in  that          case was the cause of the collapse of the Dallas County Courtroom          clock tower.  Insurance  investigators believed that it collapsed          due to structural defects.  Dallas County believed that the tower          collapsed as a result of being struck by a bolt of lightning.  In          support  of its  position, the  County introduced  into evidence,          among  other things,  charcoal and  charred timbers found  in the          tower debris.  Id. at 390.  In order to  rebut this evidence, the                         ___          insurers  sought  to  introduce  a newspaper  article  from  1901                                         -13-          describing  a fire  that had  occurred in  the courtroom  in that          year.   The court admitted the evidence  despite the fact that it          was not characterized "as a 'business record', nor as an 'ancient          document',  nor as  any  other readily  identifiable and  happily          tagged species of hearsay exception."  Id. at 398.                                                 ___                    The  Senate Report  stated that  "[b]ecause exceptional          cases like  the Dallas County case  may arise in  the future, the                          _____________          committee has decided to reinstate a residual exception for rules          803 and 804(b)."  S. Rep. No. 1277.                    Under  defendant's construction of the residual hearsay          exception, however, the newspaper  article in Dallas County would                                                        _____________          not  be admissible.    The newspaper  article  was introduced  as          evidence of the material  fact that the charred timbers  were the          result of a fire that  took place more than fifty years  prior to          the case.  The  newspaper story did not, however,  go directly to          the question  of why the  charred timbers  were in the  tower, it          only  went to the fact that  there had been a fire  in 1901.  The          story was not more probative on the point of why the timbers were          charred than any other evidence.  It was, however, more probative          than  any other evidence that  the insurers could  provide on the          question of whether there had been a fire.                    Just as in  the case at  bar, therefore, a  requirement          that the statement  be more  probative on the  point of  material          fact than  other available evidence would exclude the evidence in          question.  This is certainly not what the Senate Committee, which                                         -14-          used the Dallas County  case as an  example of evidence that  was                   _____________          correctly admitted, intended.                    Finally, we turn to the policies served by the residual          hearsay exception.  These can be summarized as follows:                      1.  To provide sufficient  flexibility to                      permit the  courts to  deal with  new and                      unanticipated situations.                      2.    To  preserve the  integrity  of the                      specifically enumerated exceptions.                      3.   To facilitate the  basic purpose  of                      the  Federal  Rules  of  Evidence:  truth                      ascertainment  and  fair adjudication  of                      controversies.          11 Moore's Federal  Practice    803(24)[7] (2d ed.  1994 &  Supp.          1996-97).  It  is our view that these  objectives are best served          by rejecting defendant's proposed construction of 804(b)(5).  The          defendant's  proposed interpretation would  needlessly reduce the          flexibility   available   to   courts  dealing   with   new   and          unanticipated  situations.   By excluding  evidence that  has, as          required  by 804(b)(5), "equivalent  circumstantial guarantees of          trustworthiness," defendant's proposed interpretation  would also          make  truth ascertainment  and the  fair adjudication  of justice          unnecessarily difficult.                    For  the  above  reasons,   we  decline  to  adopt  the          defendant's reading of subparagraphs (A) and (B), and we conclude          that the district court did not  err, as a matter of law, in  its          interpretation of Rule 804(b)(5)(B).                    We examine  the  district court's  application  of  the          rule.  Defendant-appellant claims  that the admission of Padova's                                         -15-          testimony  was erroneous  because  the district  court failed  to          analyze each part  of the  testimony in order  to determine  each          part's reliability.   In support  of his  claim, defendant  cites          Williamson  v. United  States,  512 U.S.  594,  114 S.  Ct.  2431          __________     ______________          (1994), in which the  Supreme Court ruled that, for  the purposes          of Rule 804(b)(3), which governs statements against interest, the          word  "statement" refers to a single remark.  "The district court          may  not  just  assume for  purposes  of  Rule  804(b)(3) that  a          statement  is self-inculpatory  because it  is part  of a  fuller          confession."   Williamson, 512  U.S. at __,  114 S. Ct.  at 2435.                         __________          Defendant would have us apply  the same definition of "statement"          to  Rule 804(b)(5) and, under  such a definition,  he argues that          the district court failed to analyze each part of the testimony.                    We note  initially that defendant failed  to raise this          issue  at trial.  Arguments  raised for the  first time on appeal          are forfeited and reversible only upon  a demonstration of "plain          error."   United States v.  Sullivan, 98 F.3d 686,  687 (1st Cir.                    _____________     ________          1996).   "Under this standard,  an appellant bears  the burden of          establishing:   (1)  'error,' i.e., a  '[d]eviation from  a legal                                        ____          rule'; (2)  that the error is 'plain'  or 'obvious'; and (3) that          the plain error affected 'substantial rights.'"  United States v.                                                           _____________          Winter, 70 F.3d  655 (1st  Cir. 1995) (quoting  United States  v.          ______                                          _____________          Olano, 507 U.S.  725, 732 (1993)), cert. denied,  116 S. Ct. 1366          _____                              ____________          (1996); Fed. R. Crim. Proc. 52(b).                    This  circuit  has  not  yet  determined   whether  the          definition  of   "statement"  adopted  for   Rule  804(b)(3)   in                                         -16-          Williamson also applies  to Rule  804(b)(5).5  We  need not  make          __________          this determination in the instant case, because defendant's claim          fails regardless.  If Williamson's definition of "statement" does                                __________          not  apply, defendant's claim is without merit because we find no          plain error in the district court's  review of the testimony as a          whole   --  viewing  it  as   a  single  statement   --  and  its          determination  that  the  requirements  of  Rule  804(b)(5)  were          satisfied.    The district  court  concluded  that the  testimony          included adequate  guarantees of  trustworthiness because  it was          given  under  oath,  because  Padova was  immunized,  because  he          testified upon personal knowledge,  and because he was vigorously          cross-examined by  defense counsel in  the Marder trial.6   These          indicia  of  reliability are  sufficient  to  establish that  the          district court's  conclusion that the testimony  was reliable was          not plain error.  The district court also found subparagraphs (A)          through  (C) satisfied,  and  we  find  no  plain  error  in  its          analysis.7                                        ____________________          5   But see United  States v. Canan,  48 F.3d 954, 960  (6th Cir.              _______ ______________    _____          1995) ("[T]he term 'statement' must mean 'a single declaration or          remark'  for  purposes  of all  of  the  hearsay  rules."), cert.                                                                      _____          denied, 116 S. Ct. 716 (1996).          ______          6  Defendant accurately points out that testifying under immunity          is  not always  considered an  indicator  of truthfulness.   See,                                                                       ___          e.g., United States v. Zanino, 895 F.2d 1, 7 (1st Cir. 1990).  It          ____  _____________    ______          is  not for  us,  however, to  conduct  a plenary  review of  the          district court's  determination regarding the reliability  of the          testimony or to  review every factor  considered by the  district          court.  The fact that the trial judge felt immunity bolstered the          credibility of the testimony does not amount to plain error.          7   Appellant  alleges that  the district  court examined  only a          small  part of  Padova's  testimony and  improperly admitted  the          remainder of the testimony.  We find no support for this claim in                                         -17-                    If   Williamson  applies,  our  analysis  becomes  more                         __________          complicated.   The district court does not appear to have engaged          in a sentence-by-sentence analysis of the testimony, as  would be          required  by Williamson.  The  indicators of reliability that the                       __________          district  court used, however, are not specific to any portion of          the  testimony  and  would  apply  to  every  statement  therein,          implying that there is  no error with respect to  the reliability          of the testimony.   Specifically, the district court  stated that          "Mr. Padova  testified at  the Marder  trial under  oath, he  was          immunized and, therefore, had  an incentive to tell the  truth in          order  to avoid prosecution for perjury.  He testified based upon          personal  knowledge."    The  judge  also  noted  that   "he  was          vigorously  cross-examined by  Mr. Duggan, the  defense counsel."          Tr. 2/7 14-15.                    Had  the trial  court conducted  a sentence-by-sentence          analysis, therefore, it would have applied these same criteria to          every sentence  and  would  have  concluded  that  each  one  had          sufficient indicators  of reliability.  There  was, therefore, no          plain  error  in  the  assessment  of  the  reliability  of   the          testimony.                    With   respect  to   subparagraphs   (A)-(C)  of   Rule          804(b)(5),  however,  not  every  sentence of  the  testimony  is          admissible.   For example,  not every sentence  in that testimony                                        ____________________          the record.  The transcripts of the proceedings indicate that the          district  court considered the testimony  as a whole  in order to          determine whether  the requirements  of Rule 804(b)(5)  were met.          Tr. 2/7 13-16.                                         -18-          can be said to have been offered as evidence of  a material fact.          For this reason, assuming, arguendo, that Williamson applies, the                                     ________       __________          district court's  ruling  was  erroneous.   The  error  was  not,          however,  "plain," as  required  by  Winter.    In  order  to  be                                               ______          considered  plain, the error must  be "so 'plain'  that the trial          judge  and prosecutor  were  derelict in  countenancing it,  even          absent  the  defendant's  timely  assistance  in  detecting  it."          United States v. Frady, 456  U.S. 152, 163 (1982).  The  error in          _____________    _____          this case was not sufficiently clear as to rise to the level of a          plain  error.   The error,  if it  existed at  all, turns  on the          interpretation and  application of  Williamson to a  case dealing                                              __________          with  a hearsay exception that was  not implicated in Williamson.                                                                __________          No  cases are  on point in  this circuit,  and the  issue was not          raised at trial.                    Furthermore, even if we  concluded that there was plain          error,  the  defendant still  must show  that the  error affected          "substantial rights."  In order to affect substantial rights, the          error  "must have  affected  the outcome  of  the district  court          proceedings."  Olano, 507 U.S. at 734.  The analysis  is the same                         _____          as  a  "harmless  error"  analysis,  except  that  "[i]t  is  the          defendant  rather than  the  Government who  bears the  burden of          persuasion with respect  to prejudice."   Id.   Defendant in  the                                                    ___          instant  case has failed  to demonstrate that  the error affected          the outcome of  the proceedings.   Indeed,  defendant-appellant's          brief pursues only  a harmful error  argument and concludes  that          "Padova's testimony  .  . .  very  well  could  have  tipped  the                                                   ___________                                         -19-          scales."  Appellant's  Brief at 44 (emphasis added).   Even if we          were to agree with  this assertion, it is  not enough, under  the          plain  error standard,  that  the error  could  have changed  the                                                   ___________          outcome.  We  can find plain  error only if  the error must  have                                                                 __________          done so.                    Finally,  we address  defendant's claim  that Sposito's          counsel  would  have undertaken  a  more  vigorous and  extensive          cross-examination of Padova than did Marder's counsel.  We do not          dispute that it would have been better to have Padova testify and          be  subject  to  cross-examination.    Given  that  he  was   not          available, a  fact defendant  does not  dispute, the  question is          whether  his previous testimony should have  been admitted.  This          matter  goes to  the question  of whether  there  were sufficient          guarantees  of trustworthiness.   As  we have  already discussed,          defendant  has failed  to persuade  this court that  the district          court's conclusion that such guarantees existed was plain error.                                   III.  Conclusion                                   III.  Conclusion                    For  the  foregoing  reasons,  we  affirm the  district                                                       affirm                                                       ______          court's rulings on the STA claim and the evidence claim.                                         -20-
