                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-26-2006

USA v. Santostefano
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4858




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Recommended Citation
"USA v. Santostefano" (2006). 2006 Decisions. Paper 1036.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1036


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                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                  Nos. 05-4858/4859


                          UNITED STATES OF AMERICA,
                                     v.

                             STEVEN SANTOSTEFANO,

                                               Appellant




                    On Appeal from the United States District Court
                       for the Middle District Of Pennsylvania
                          D.C. No. 03-cr-305 and 04-cr-499
                        District Judge: Hon. James M. Munley


                                        Argued
                                       May 18, 2006

              Before: FISHER, ALDISERT and LOURIE,* Circuit Judges

                                 (Filed: May 26, 2006)


Gerard E. Grealish, Esq. (ARGUED)
Suite 3H, Kane Professional Building
116 North Washington Avenue
Scranton, PA 18503

Counsel for Appellant


      *
       Honorable Alan D. Lourie, Circuit Judge, United States Court of Appeals for the
Federal Circuit, sitting by designation.
Christy H. Fawcett, Esq. (ARGUED)
Thomas A. Marino, Esq.
Assistant United States Attorney
220 Federal Building and Courthouse
228 Walnut Street, P.O. Box 11754
Harrisburg, PA 17108

Counsel for Appellee




                                  JUDGMENT ORDER


       This cause came to be considered on the record from the United States District
Court for the Middle District of Pennsylvania and was argued on May 18, 2006, and

       IT APPEARING that this appeal presents an intersection between Rule 1101(d)(3)
of the Federal Rules of Evidence, which states that the Rules of Evidence, including those
barring hearsay, do not apply to supervised release violation hearings, and Rule
32.1(b)(2)(C) of the Federal Rules of Criminal Procedure, which provides that a
defendant is entitled to an opportunity to appear, present evidence, and question any
adverse witness unless the court determines that the interests of justice do not require the
witness to appear; and

       IT APPEARING that the major thrust of Appellant’s position on appeal is that
excessive hearsay dominated the revocation hearing in the District Court for the Middle
District of Pennsylvania; and

       IT APPEARING that Appellant did not raise the hearsay objection at the hearing
before the District Court, thus requiring our review to be for plain error, Rule 52(b),
Federal Rules of Criminal Procedure; and

       IT APPEARING that an appellant who seeks to prevail on plain error review must
show that: (1) an error occurred; (2) the error was plain; (3) the error affected his
substantial rights; and (4) the error is one seriously affecting the fairness, integrity or
public reputation of judicial proceedings, such that the Court should exercise its
discretion to correct the error, Johnson v. United States, 520 U.S. 461, 466-467 (1997);
and

                                             2
       IT APPEARING that although the testimony before the revocation hearing was
admittedly hearsay, a previous revocation hearing had been conducted on September 14
and September 19, 2005 in the United States District Court for the District of Arizona in
which the defendant had the opportunity to question the hearsay declaring; and

        IT APPEARING that Appellant and his counsel made no attempt to obtain a
transcript of the prior hearing to challenge the hearsay testimony at the later hearing, or to
notify the District Court of the prior hearing; and

       IT APPEARING that had Appellant raised his objection at the hearing in the
District Court for the Middle District of Pennsylvania, the government would have had
the opportunity to present either live testimony or a transcript of the prior hearing; and

        CONSIDERING the totality of the two proceedings and circumstances presented
here, and applying the standard of plain error, we are unable to conclude that any error
seriously affected the fairness, integrity or public reputation of judicial proceedings so
that this Court should exercise its discretion to correct any error; accordingly,

      IT IS ORDERED and ADJUDGED that the judgment of the District Court dated
October 24, 2005 be and is hereby AFFIRMED.


                                           BY THE COURT,

                                           /s/ Ruggero J. Aldisert
                                           Circuit Judge




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