United States v. Reilly

Opinions of the United

1994 Decisions States Court of Appeals

for the Third Circuit

7-27-1994

United States of America v. Reilly

Precedential or Non-Precedential:

Docket 93-7671

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 93-7671, 93-7672, 93-7673, 93-7684,

93-7685, 93-7686, 93-7694

UNITED STATES OF AMERICA,

v.

WILLIAM P. REILLY,

Appellant

UNITED STATES OF AMERICA,

v.

JOHN PATRICK DOWD,

Appellant

On Appeal from the United States District Court

for the District of Delaware

(D.C. Crim. Nos. 92-00053-1, 93-00008,

93-00010, 92-00053-2)

Argued May 2, 1994

BEFORE: GREENBERG and GARTH, Circuit Judges,

and ROBRENO, District Judge*

(Filed: July 28, 1994)

1

* Honorable Eduardo C. Robreno, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

2

Lois J. Schiffer

Acting Assistant Attorney

General

Howard P. Stewart

Christina E. Steck

David C. Shilton (argued)

J. Carol Williams

United States Department of

Justice

P.O. Box 23795

L'Enfant Plaza Station

Washington, DC 20026

Attorneys for appellee

Marc B. Tucker (argued)

Randolph K. Herndon

Daniel V. Folt

Andre G. Bouchard

Skadden, Arps, Slate, Meagher &

Flom

One Rodney Square

P.O. Box 636

Wilmington, DE 19899

Attorneys for appellant

William P. Reilly

Andrew L. Frey (argued)

Lawrence S. Robbins

John J. Sullivan

Dorrann E. Banks

Mayer, Brown & Platt

2000 Pennsylvania Ave., N.W.

Washington, DC 20006

Attorneys for appellant

John Patrick Dowd

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. FACTUAL AND PROCEDURAL HISTORY

3

A. Factual History

This is an appeal from judgments of conviction and

sentence entered following a jury trial in the United States

District Court for the District of Delaware.0 The appellants are

John Patrick Dowd, who was convicted of knowingly making a false

declaration under oath, 18 U.S.C. § 1623(a), and William P.

Reilly, who was convicted of knowingly making false declarations

under oath, 18 U.S.C. § 1623(a), and of transporting incinerator

ash from the United States for the purpose of dumping it into the

ocean, 33 U.S.C. § 1411(a). The charges against Dowd and Reilly

arose from three sources: a Delaware indictment alleging that

they knowingly made false material declarations before a grand

jury; a Delaware information charging Reilly with the dumping

violation; and a Pennsylvania indictment alleging that Reilly

knowingly made false material declarations before a district

court during a contempt hearing. The Pennsylvania indictment was

transferred to the District of Delaware for consolidation and

trial. The district court had subject matter jurisdiction

pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

Dowd and Reilly were respectively the president and

vice president of Coastal Carriers Corporation, which was based

in Annapolis, Maryland. Coastal Carriers acted as an agent for

the Amalgamated Shipping Corporation, a Bahamas corporation whose

0

We refer to the appendices as follows: (1) Dowd's appendix is

D. app.; (2) Reilly's appendix is R. app.; (3) the government's

appendix is U.S. app. We refer to the briefs in a similar way.

4

president and vice-president, respectively, were Robert Cordes

and Henry Dowd, John Patrick Dowd's father. Cordes was also

president of several other corporations including MASCO, Lily

Navigation, and Romo Shipping Corporation. In early 1986, John

Patrick Dowd and Reilly entered into negotiations with Joseph

Paolino & Sons, Inc., a contractor with the City of Philadelphia,

leading to Paolino and Amalgamated signing a contract on June 23,

1986, in which Amalgamated agreed to transport and dispose of

incinerator ash residue produced by the city.

Subsequently, Amalgamated entered into a two-year time

charter with Lily Navigation for one of Lily's ships, the Khian

Sea. In August 1986, Paolino loaded approximately 13,500 tons of

incinerator ash into the holds of the Khian Sea, while the ship

was docked at Girard Point in Philadelphia. See U.S. app. at

249-251. Later that month, the Khian Sea left Philadelphia for

the Bahamas where Amalgamated intended to dispose of the ash.

However, before the Khian Sea reached the Bahamas, that country

denied Amalgamated permission to dispose of the ash. Apparently,

the Khian Sea then sailed around the Caribbean for more than a

year while a disposal site was sought.

In November 1987, Amalgamated had not yet found a site

for the ash, and the ship was anchored in Puerto Cortes,

Honduras. At that point, the captain of the Khian Sea left the

ship, and Reilly hired Arturo Fuentes, a captain who lived in

Puerto Cortes, to replace him. Reilly directed Fuentes to take

the ship to Haiti, where the ash would be off-loaded. After the

Khian Sea arrived in Haiti, its crew began off-loading the ash

5

but the Haitian military authorities interrupted the operation

and required the ship to leave. At that time, more than half of

the original ash remained on the ship.

Fuentes testified that Reilly then instructed him to

take the ship to Ocean Cay in the Bahamas to pick up a small

bulldozer called a "bobcat." See R. app. at 663-64. After

picking up the bulldozer, the Khian Sea went to Ft. Pierce,

Florida, where Reilly boarded the ship, and according to Fuentes,

promised the ship's officers and crew additional compensation to

begin dumping the ash into the ocean while en route to West

Africa. Id. at 673-74. The Khian Sea left Ft. Pierce but before

it began the dumping, "AMALGAMATED ANNAPOLIS" sent Fuentes a

radiotelegram instructing him to "SUSPEND OPERATIONS" and proceed

to Philadelphia. Id. at 679-80, 1189. Fuentes received another

radiotelegram on February 27, 1988, signed "AMALGAMATED"

instructing him to "CALL 301 544 2909 AT 1900 TODAY." Id. at

1192. The phone number was Reilly's home phone number, which

Fuentes frequently called to contact Reilly. Id. at 686.

The Khian Sea entered Delaware Bay on March 1, 1988,

and anchored at Big Stone Beach. See D. app. at 71. While the

ship was anchored there, Paolino and Coastal Carriers engaged in

negotiations regarding the disposal of the ash. However, they

could not reach an agreement on the price for disposal. See U.S.

app. at 3-4. During this period, Reilly boarded the Khian Sea

several times, and according to Fuentes, he and Reilly discussed

the execution of the dumping plan they had developed in Ft.

Pierce. Subsequently, Reilly directed Fuentes to leave for the

6

Atlantic, and the Khian Sea left the Delaware Bay on May 22,

1988, against the orders of the Coast Guard. See D. app. at 278;

R. app. at 699-700, 854; U.S. app. at 5, 239-40.

A few days after the Khian Sea left the Delaware Bay,

its crew began dumping the ash into the Atlantic Ocean. This

dumping continued for about two weeks, but stopped when "all the

equipment broke down." See R. app. at 855. During the two-week

period of dumping, Fuentes and Reilly communicated frequently.

See D. app. at 281-92. Subsequently, in July 1988, the Khian

Sea docked in Bijela, Yugoslavia, for repairs. See R. app. at

856.0

Reilly wrote to the American Bureau of Shipping to

request that the ship be reclassified inasmuch as it had lost its

classification after leaving the Delaware Bay without

permission.0 However, on August 17, 1988, the Bureau sent a

letter to Reilly informing him that its surveyor could not

examine the holds because "the vessel remains about half loaded

with cargo," see U.S. app. at 259, and thus, the ship only was

authorized to sail directly to Manila for completion of the

reclassification surveys, id. at 63.

0

While the ship was in Yugoslavia, Lily "sold" the ship and its

cargo to Romo Shipping for $10, and the ship was renamed the

Felicia. However, Lily and Romo had the same post office box in

Freeport, Bahamas, and, as noted above, both were headed by

Robert Cordes. See R. app. at 1167. Moreover, Coastal Carriers

continued to act as the agent for the ship. Throughout our

opinion, we will refer to the ship as the Khian Sea.

0

Before a ship can accept commercial cargoes, it must obtain a

"classification" certifying that it is seaworthy and able safely

to carry certain cargoes. The ship must be "reclassified"

periodically. See U.S. app. at 34-35.

7

Reilly met with Fuentes in Yugoslavia, and told him

that: (1) Kimon Berbillis, a representative of Romo Shipping,

would give him instructions regarding the remainder of the trip;

(2) if no country agreed to accept the remaining ash, it would be

dumped in the ocean; and (3) they would refer to the ash as

"ballast." See D. app. at 299, 304-05. The ship left Yugoslavia

and transited the Suez Canal in September 1988. Id. at 300-01.

Subsequently, Fuentes received a radiotelegram from Berbillis,

stating that Fuentes should arrive in Colombo, Sri Lanka, with

only "500 TONS" of ballast, and that Reilly would cable him

information he had requested. See R. app. at 1214. The next

day, Fuentes received confirmation from Annapolis that the ship

should arrive in Colombo with only 500 tons on board. Id. at

1215. In accordance with these instructions, Fuentes dumped all

but 500 tons of the remaining ash into the Indian Ocean. Id. at

719-20.

On October 9, 1988, Fuentes received a radiotelegram

directing him to proceed to Singapore, instead of to Colombo, see

id. at 1216, and on October 15, he received a radiotelegram

directing him to dump the remaining 500 tons of ash, id. at 1218.

Prior to the ship's arrival in Singapore, Reilly telefaxed a

letter to the American Bureau of Shipping, stating that the Khian

Sea would arrive in Singapore "for the completion of class work."

See U.S. app. at 261. When the ship arrived in Singapore in

November 1988, its cargo holds were empty. According to Fuentes,

Dowd boarded the ship in Singapore, removed gear that had been

used in the dumping operation, see R. app. at 729-30, and told

8

Fuentes to replace the ship's logbook with a falsified logbook,

see D. app. 322-25, and to tell any inquiring journalists that

the ash had been dumped in a country which could not be revealed,

id. at 320. The Khian Sea then proceeded to Shanghai, where it

was reclassified. See U.S. app. at 64. Fuentes left the ship at

this point, taking copies of radiotelegrams and communication

logs with him. See R. app. at 665, 739.

B. Procedural History

Paolino filed suit against Coastal Carriers,

Amalgamated, and others, and on June 2, 1988, the United States

District Court for the Eastern District of Pennsylvania issued a

preliminary injunction, enjoining the defendants, their officers,

and their agents from off-loading or disposing of the ash without

first providing Paolino with at least three days written notice

of the proposed place, manner, and method of disposal. The

district court held a contempt hearing on December 15, 1988, to

determine if the defendants had violated the preliminary

injunction. At the hearing, Reilly was asked, under oath,

whether he had "any knowledge . . . as to what happened to the

incinerator residue" on board the Khian Sea, or "any knowledge as

to the means by which it might be ascertained what happened to

the residue." See U.S. app. at 275. Reilly responded "[n]o,

sir" to both questions. Id.

In January 1990, Reilly appeared before a federal grand

jury for the District of Delaware that was investigating

potential ocean dumping violations in connection with the

9

activities of the Khian Sea between September 1986 and December

1988. Id. at 285-403. Reilly was informed that the grand jury

was investigating the disposal of ash from the Khian Sea and was

advised of his right to leave and seek legal counsel. He then

testified that he had no knowledge of what happened to the ash

and had not directed anyone to remove the ash from the ship. Id.

at 376-81.

Dowd appeared before the same grand jury on February

14, 1990. See U.S. app. at 405-95. Like Reilly, he was informed

of the scope of the grand jury's investigation and his rights.

Dowd then testified that he did not have "any idea" what happened

to the ash on board the Khian Sea. See D. app. at 212-13.

On June 14, 1992, an indictment was returned in the

District of Delaware charging Dowd and Reilly with violating 18

U.S.C. § 1623(a) by knowingly making false declarations before

the federal grand jury. See R. app. at 49-57. Dowd and Reilly

moved to dismiss the indictment, claiming that it did not allege

adequately the essential elements of a section 1623(a) violation.

United States v. Reilly, 811 F. Supp. 177, 179 (D. Del. 1993).

However, the court held that the indictment alleged with

sufficient clarity that Dowd and Reilly knowingly made false

statements before a grand jury, these statements were material to

the grand jury's investigation, and the questions that elicited

these false statements were not too vague or ambiguous to support

convictions under section 1623(a). 811 F. Supp. at 181.

On January 25, 1993, an indictment was returned in the

Eastern District of Pennsylvania charging Reilly with violating

10

18 U.S.C. § 1623(a) by knowingly making false declarations during

the contempt hearing. See R. app. at 62-66. Finally, on January

28, 1993, an information was filed in the District of Delaware,

charging Reilly with violating 33 U.S.C. § 1411(a), by knowingly

transporting and causing to be transported material from the

United States for the purpose of dumping it into ocean waters. R.

app. at 58-61. The two indictments and the information were

consolidated in the District of Delaware. Prior to trial, Dowd

and Reilly unsuccessfully moved to disqualify the prosecutor from

prosecuting the case because he had called them as witnesses

before the Delaware grand jury. United States v. Reilly, Crim.

Nos. 92-53-JJF, 93-8-JJF, 93-10-JJF, Memorandum Opinion at 9 (D.

Del. May 7, 1993). Following a jury trial from May 17 to June 3,

1993, Reilly was convicted of two counts of making false

declarations and one count of dumping, and Dowd was convicted of

one count of making a false declaration.

II. DISCUSSION

A. Were the radiotelegams authenticated properly?

The Khian Sea communicated with locations on shore by

radiotelegram and the district court admitted into evidence 35 of

the radiotelegrams that allegedly had been sent to or received by

the Khian Sea between December 1987 and December 1988. See R.

app. at 1189-94, 1198-1209, 1212-21, 1226-32. The district court

based its evidentiary decision in part on its conclusion that

there was "sufficient circumstantial evidence" to indicate that

11

the radiotelegrams were what the government claimed. See U.S.

app. at 65-67. Reilly challenges this determination in this

appeal. "We review the district court's ruling as to proper

authentication for abuse of discretion." United States v.

McGlory, 968 F.2d 309, 328 (3d Cir.), cert. denied, 113 S.Ct. 415

(1992).0

Reilly argues that the district court admitted all of

the 35 radiotelegrams into evidence "on a wholesale basis as Mr.

Reilly's admissions, irrespective of the very substantial

differences among them, irrespective of the fact that most of

them indisputably were sent or received by people other than Mr.

Reilly[,] . . . and irrespective of the fact that the government

did not even attempt to demonstrate, much less succeed in

demonstrating, how each radiotelegram was 'authored' or 'adopted'

by Mr. Reilly." See R. br. at 37-38. Thus, Reilly argues that

the district court either failed to exercise its discretion or

abused its discretion by admitting the radiotelegrams as Reilly's

admissions. Id. at 38. Reilly also argues that the government

should be "estopped" from asserting "that only a few of the

radiotelegrams were sent by Reilly" and that most of the

radiotelegrams "were introduced only to show the circumstances in

which the few radiotelegrams from Mr. Reilly were sent," see R.

0

Neither Reilly nor the government distinguishes between the

evidence before the district court at the time it ruled that the

radiotelegrams satisfied the authenticity requirement and the

evidence introduced later in the trial. Thus, we review all of

the evidence relevant to authenticity.

12

reply br. at 12-13, because it did not make this argument to the

district court, id. at 11.

The government argues that it did not attempt to

authenticate all of the 35 radiotelegrams as Reilly's admissions

and that the district court did not admit the radiotelegrams on

this basis. U.S. br. at 18-19. The government maintains that

although it introduced some of the radiotelegrams to "show that

Reilly knew about and directed the dumping of the ash into the

ocean[,] [o]thers . . . [were not sent or received by Reilly and]

were introduced because they interrelate with the incriminating

radiotelegrams, establishing the factual context and showing

generally that Fuentes was testifying accurately as to the timing

and substance of various events." Id. at 19-20. According to

the government, the district court concluded that all of the 35

radiotelegrams had been authenticated properly based on "the

detailed testimony of Fuentes that the radiotelegrams were

communications between Reilly and him, the subject matter of the

radiotelegrams, their timing and interconnection with each other,

their connection with undisputed evidence of phone calls between

Reilly and Fuentes, and Reilly's own admission that he

communicated with captain Fuentes by cable and phone." Id. at

18.

We conclude that, contrary to Reilly's allegations, the

government did not attempt to authenticate all of the 35

radiotelegrams as Reilly's admissions. See R. app. at 123-29

(Memorandum of the United States in Support of the Admission of

Certain Cables and Other Records of the Khian Sea). Moreover,

13

although the district court focused on the connections between

the radiotelegrams and Reilly when citing the circumstantial

evidence of their authenticity, we do not believe that the

district court admitted all of the 35 radiotelegrams as Reilly's

admissions.0 We base this conclusion on the fact that 18 of the

35 radiotelegrams admitted into evidence were sent from the Khian

0

When ruling that the radiotelegrams satisfied the authenticity

requirement, the district court stated:

At the moment, I'm inclined to allow the

government to use the messages, and I do it .

. . based on my reading of the case law that

talks about the level of proof necessary for

authenticity . . . they don't have to be

perfect in proving it, that your client sent

these telexes or the messages and . . .

[there is] sufficient circumstantial evidence

to . . . [suggest] that they are what the

government purports that they should be; that

is, that they appear to be from the same

location where he was; they appear to include

contents of materials or communications that

he would know the substance of the

communications; and they appear to be in a

pattern of communications that would suggest

that if Fuentes received them and then acted

on them and then responded to them and then

received a response again from Reilly, all of

which suggests that whoever it was who was

sending the messages had knowledge of the

transaction and the matters involved.

And I understand there's a risk that the

sender may have been someone else other than

Reilly. And by admitting them and finding

that the government has reasonably satisfied

[the] authenticity [requirement], I'm not

making a finding that Reilly is absolutely

the person who sent them. I'm making a

finding that there's sufficient indicia of

authenticity to allow them to be admitted

into evidence.

See U.S. app. at 65-66.

14

Sea, not to the Khian Sea, and the fact that certain

radiotelegrams are communications between the Khian Sea and

parties not associated with Reilly, including the Consul of the

Republic of Honduras and the United States Coast Guard. Thus, we

review the evidence of authenticity in this light.

Fed. R. Evid. 901(a) states that "[t]he requirement of

authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent

claims." "Rule 901(a) treats preliminary questions of

authentication and identification as matters of conditional

relevance according to the standards of Rule 104(b). The

condition of fact which must be fulfilled by every offer of real

proof is whether the evidence is what its proponent claims." 5

Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence

¶901(a)[01] at 901-15 (1993).

Fed. R. Evid. 901(b) provides examples of appropriate

methods of authentication. These examples include "[t]estimony

that a matter is what it is claimed to be," Rule 901(b)(1), and

"[a]ppearance, contents, substance, internal patterns, or other

distinctive characteristics, taken in conjunction with

circumstances," Rule 901(b)(4). Thus, "[i]t is clear that the

connection between a message (either oral or written) and its

source may be established by circumstantial evidence." United

States v. Addonizio, 451 F.2d 49, 71 (3d Cir. 1971), cert.

denied, 405 U.S. 936, 92 S.Ct. 949 (1972). Moreover, "[a]ny

combination of items of evidence illustrated by Rule 901(b) . . .

15

will suffice so long as Rule 901(a) is satisfied." 5 Weinstein's

Evidence ¶ 901(b)(1)[01] at 901-32. Finally, "[t]he burden of

proof for authentication is slight." Link v. Mercedes-Benz of

North America, Inc., 788 F.2d 918, 927 (3d Cir. 1986) (quoting

McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir.

1985)). We have explained that

'the showing of authenticity is not on a par

with more technical evidentiary rules, such

as hearsay exceptions, governing

admissibility. Rather, there need be only a

prima facie showing, to the court, of

authenticity, not a full argument on

admissibility. Once a prima facie case is

made, the evidence goes to the jury and it is

the jury who will ultimately determine the

authenticity of the evidence, not the court.

The only requirement is that there has been

substantial evidence from which they could

infer that the document was authentic.'

McGlory, 968 F.2d at 328-29 (quoting Link, 788 F.2d at 928

(quoting United States v. Goichman, 547 F.2d 778, 784 (3d Cir.

1976))) (emphasis omitted); see also Michael H. Graham, Federal

Practice and Procedure: Evidence § 6821 at 849 (Interim Edition

1992) ("Satisfaction of the requirement of authentication or

identification is a matter to be approached in accordance with

Rule 104(b). Accordingly once the court finds that evidence has

been introduced sufficient to permit a reasonable juror to find

that the matter in question is what its proponent claims, a

sufficient foundation for introduction in evidence has been laid,

Rule 104(b).") (citations omitted).

There are several witnesses whose testimony supports

the authenticity of the 35 radiotelegrams. One of these

witnesses is Humberto Carcamo Arias (Carcamo), the Khian Sea's

16

radio operator. He identified the radiotelegrams based on their

appearance and content. See U.S. app. at 101-17. Carcamo

testified that he transmitted the radiotelegrams sent from the

Khian Sea and transcribed the radiotelegrams received by the

Khian Sea. Moreover, he described the procedures that he used

when sending and receiving the radiotelegrams. According to

Carcamo, he would receive a handwritten message from Fuentes and

then type the message on a SAIT Electronics radiotelegram form

"to send it to Sait, S-a-i-t, Electronics. The original copy for

them, one copy for us, and one copy for the head office." Id. at

102. Carcamo received incoming radiotelegrams from coastal

stations that transmitted the messages to the ship in Morse code.

Upon receiving these messages, Carcamo decoded them, transcribed

them, and delivered them to Fuentes. Id. at 103-04. Finally,

Carcamo stated that he placed his initials "HCA" on the records

of all the outgoing and incoming radiotelegrams he prepared. Id.

at 102-03. Each of the 35 radiotelegrams admitted into evidence

bears his initials, corroborating his testimony.

Fuentes's testimony also supports the authenticity of

the radiotelegrams. Fuentes testified that he sent or received

each of the 35 radiotelegrams admitted into evidence and

corroborated Carcamo's testimony regarding Carcamo's role in the

transmission and receipt of the radiotelegrams. See R. app. at

653-55, 668-69. Fuentes's testimony also indicates that the 12

radiotelegrams admitted into evidence that originated in

Annapolis were from Reilly and that the three radiotelegrams

admitted into evidence that the Khian Sea sent to Annapolis were

17

sent to Reilly. Fuentes testified that he was hired by Reilly,

that he took his directions from Reilly, id. at 649-51, and that

while he was at sea, Reilly was the "only person" he knew in

Annapolis and was his primary contact at Coastal Carriers and

Amalgamated Shipping, id. at 654, 659, 680. Other testimony

links these radiotelegrams with Reilly. Clare Dobbins, a

secretary at Reilly's office in Annapolis, testified that she

witnessed Reilly receive radiotelegrams from the Khian Sea, and

sometimes delivered them to him from the telex machine. See U.S.

app. at 23-24, 28. Finally, Reilly admitted that he was in

contact with Fuentes, and that he communicated with him by phone

and by cable on behalf of Coastal Carriers and Amalgamated. Id.

at 159, 182, 196.

In addition to the testimony authenticating the

radiotelegrams, there are multiple pieces of circumstantial

evidence that support the conclusion that the radiotelegrams are

what the government claims they are, namely radiotelegrams to and

from the Khian Sea, many of which were sent or received by

Reilly. First, Fuentes, the captain of the Khian Sea during the

time period at issue, provided the radiotelegrams to the

government in January 1992, when he came to the United States to

testify before the grand jury regarding the activities of the

Khian Sea. See R. app. at 739. Fuentes testified that although

he received instructions from the "company" to destroy documents

that might prompt an investigation into the whereabouts of the

ash, see id. at 754, he took all of the radiotelegrams with him

when he left the Khian Sea, and then provided them to the

18

government in January 1992, id. at 665, 739.0 Although this

evidence is not "dispositive" on the question of the

radiotelegrams' authenticity, it "is surely probative." See

McQueeney, 779 F.2d at 929 ("the fact that the copies were

produced by the plaintiff in answer to an explicit discovery

request for his Sea Service Records, while not dispositive on the

issue of authentication, is surely probative.").

Second, the appearance of the radiotelegrams also

supports the conclusion that they are authentic. They are typed

on forms bearing the letterhead "SAIT ELECTRONICS" and the label

"RADIOTELEGRAM." Moreover, as we noted above, each of the 35

radiotelegrams admitted into evidence bears Carcamo's initials,

"HCA", in either the location designated for the name of the

party sending the radiotelegram or the location designated for

the party receiving the radiotelegram. "The specificity,

regularity, and official appearance of the documents increase the

likelihood of their being authentic." Id. (citations omitted).

Third, "the contents of the . . . [radiotelegrams] tend

to support their claim to authenticity," id., by linking many of

them to Reilly. Of the 18 radiotelegrams in evidence that were

sent by the Khian Sea, three were sent to Annapolis, and of the

17 radiotelegrams in evidence received by the Khian Sea, 12

originated in Annapolis. See R. app. at 1186-1232. Annapolis,

of course, was the site of the Coastal Carriers office where

Reilly worked. Moreover, the three radiotelegrams in evidence

0

Carcamo also testified that Fuentes took the radiotelegrams with

him when he left the Khian Sea. See U.S. app. at 117.

19

sent to Annapolis from the Khian Sea were sent to Reilly's telex

number at Coastal Carriers. Id. at 1200, 1209, 1232.0

Of the 12 radiotelegrams in evidence that were received

by the Khian Sea and originated in Annapolis, three were signed

"COALCOAST," see id. at 1215, 1216, 1220, one was unsigned, id.

at 1218, five were signed "AMALGAMATED ANNAPOLIS," or

"AMALGAMATED," id. at 1189, 1192, 1193, 1199, 1207, and three

were signed "MASCO," id. at 1203, 1205, 1206. Reilly testified

that "COALCOAST" was the "callback" for Coastal Carriers, the

company at which he was vice president. See U.S. app. at 194.

Moreover, Coastal Carriers represented Amalgamated, and one of

the radiotelegrams signed "AMALGAMATED" contained a message

instructing Fuentes to call "301 544 2909," Reilly's home phone

number, see R. app. at 1192.0 Before the Khian Sea received any

radiotelegrams signed "MASCO," it received a radiotelegram signed

"AMALGAMATED SHIPPING CORPORATION" and stating "PLEASE REPLY

AMALGAMATED CARE OF MASCO FREEPORT BAHAMAS," id. at 1201.

Furthermore, a radiotelegram signed "MASCO" and dated June 18,

1988, stated "DO NOT CALL DAYTIME." Id. at 1205. The primary

numbers that Fuentes called for business purposes were Reilly's.

Finally, the unsigned radiotelegram sent from Annapolis included

the following message "COMFROM [sic] ROMO COASTAL CARRIERS

CORPORATION ANNAPOLIS MARYLAND RCA 205654 OR T/X 7108678557"

containing the Coastal Carriers telex number. Id. at 1218.

0

It is undisputed that the telex number for Coastal Carriers was

7108678557. See R. app. at 1218.

0

It is undisputed that Reilly's home phone number was 301-544-

2909. See U.S. app. at 17.

20

The Khian Sea's logs of outgoing radiotelegrams and

phone calls also support the conclusion that Reilly sent the

radiotelegrams originating in Annapolis, because they are

consistent with Fuentes's testimony that he was reporting to

Reilly and taking directions from him via telephone and telex. In

considering the logs it is, of course, important to recognize

that there are far more radiotelegrams listed than were admitted

into evidence. The log covering December 1987 through February

1988 indicates that ten radiotelegrams were sent from the Khian

Sea to the telex in Reilly's office at Coastal Carriers in

Annapolis. Id. at 1186-88.0 The log covering May 1988 through

July 1988 indicates that the Khian Sea sent four radiotelegrams

to Annapolis, id. at 1195, and that Fuentes made five phone calls

to Reilly's home phone number and four phone calls to Reilly's

office number, id. at 1196-97.0 The log covering September 1988

through October 1988 identifies three phone calls from the Khian

Sea to Reilly's home, and three to Reilly's office. Id. at 1210-

11. Finally, the log covering November 1988 through December

1988 indicates that the Khian Sea sent two radiotelegrams to

Reilly's office and that two phone calls were made to Reilly's

home number and two to his office number. Id. at 1222-24.

Finally, as the government argues, the messages in the

radiotelegrams and their relationship to each other, to Fuentes's

0

As we noted above, it is undisputed that the telex number for

Coastal Carriers was 7108678557. See R. app. at 1218.

0

As we noted above, it is undisputed that Reilly's home phone

number was 301-544-2909. It is also undisputed that the office

phone numbers for Coastal Carriers were 301-268-9797, 301-268-

9798, and 301-268-9799. See U.S. app. at 17, 19-20, 137-138.

21

testimony, and to other evidence indicate that Reilly sent the

radiotelegrams originating in Annapolis and support the district

court's conclusion that all of the radiotelegrams in evidence

satisfied the authenticity requirement. See U.S. br. at 24-31. A

letter or telegram "may be authenticated by its contents with or

without the aid of physical characteristics if the letter is

shown to contain information that persons other than the

purported sender are not likely to possess." Graham, Federal

Practice and Procedure: Evidence § 6825 at 865-68; see also

United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993) ("'a

document or telephone conversation may be shown to have emanated

from a particular person by virtue of its disclosing knowledge of

facts known peculiarly to him.'") (quoting Fed. R. Evid. 901

advisory committee note ex. (4)), cert. denied, 114 S.Ct. 1660

(1994); 5 Weinstein's Evidence ¶ 901(b)(4)[01] at 901-60 ("A

letter, for example, can be shown to have emanated from a

particular person or business by the fact that it would be

unlikely for anyone other than the purported writer to be

familiar with its subject matter and content."). "Although we do

not know precisely how many people had the information contained

in the proffered evidence, we suspect, as noted above, that the

number is small. Therefore, the nature of the information in the

documents further supports their authenticity." McQueeney v.

Wilmington Trust Co., 779 F.2d at 930. Moreover, "[w]here

letters [or telegrams] fit into a course of correspondence or a

progressive course of action, proof of the letters' relationship

22

to these events can authenticate any of the letters [or

telegrams]." 5 Weinstein's Evidence ¶ 901(b)(4)[04] at 901-75.

The messages contained in the radiotelegrams, and the

way in which they relate to each other, to Fuentes's

conversations with Reilly, and to the activities of the Khian Sea

link Reilly to the 12 radiotelegrams from Annapolis and one which

Berbillis sent to the Khian Sea from Greece. A persuasive

example of this circumstantial evidence is "the series of

radiotelegrams introduced as Govt. Exhibit 69, and . . . [their

relationship] to the testimony of Captain Fuentes and other

documents." U.S. br. at 24. According to Fuentes, Reilly told

him to take directions from Kimon Berbillis once the Khian Sea

left Yugoslavia, that Abdel Hakim, a vice president of Romo

Shipping, also might send him messages, see R. app. at 714, 723,

and that "ballast" was to be the code word for the incinerator

ash on board the Khian Sea, id. at 719-21. Thus, the record

supports the conclusion that Berbillis and Hakim were acting on

behalf of Reilly or at his behest. Id. at 714-17, 723-24.

Government Exhibit 69A is a radiotelegram that Fuentes sent to

Berbillis on September 29, 1988, stating that the ship had

departed Suez, and that "NO RADIO CONTACT WAS POSSIBLE WITH

HAKIM," and asking Berbillis to "PLEASE SEND INSTRUCT [sic] HOW

MUCH BALLAST SHOULD I ARRIVE WITH." Id. at 1212. Fuentes

testified that Government Exhibit 69B is the second radiotelegram

he sent to Berbillis. In this radiotelegram, Fuentes asks for

instructions on what to do when he arrives in Colombo, Sri Lanka,

and states that he had "NO SUCCESS ON PHONE TO USA." Id. at

23

1213. According to Fuentes, the person he was trying to reach in

the "USA" was Reilly. Id. at 717.

Moreover, Government Exhibit 69C is Berbillis's reply

to Fuentes's request for instructions, and it states, "PLEASE

DELAY YOU ETA UNTIL NOON OCTOBER 14 STOP TRY ARRIVE WITH 500 TONS

IN ONEHOLD STOP REILLY WILL CABLE YOU INFO YOU REQUESTED." Id.

at 1214 (emphasis added).

A common aspect of authentication permissible

under Rule 901(b)(4) is the reply doctrine

which provides that once a letter, telegram,

or telephone call is shown to have been

mailed, sent or made, a letter, telegram or

telephone call shown by its contents to be in

reply is authenticated without more.

Graham, Federal Practice and Procedure: Evidence § 6825 at 868-

69; 5 Weinstein's Evidence ¶ 901(b)(4)[05] at 901-76 ("A letter

can be authenticated by testimony or other proof that it was sent

in reply to a duly authenticated writing. A reply letter often

needs no further authentication because it would be unlikely for

anyone other than the purported writer to know and respond to the

contents of an earlier letter addressed to him."). Accordingly,

inasmuch as Fuentes's testimony authenticates Government Exhibit

69B, and 69C is a reply to 69B, 69C satisfies the authenticity

requirement. Of course, the contents of Government Exhibit 69C

also link the radiotelegram to Reilly, whose name is mentioned

explicitly in the radiotelegram.

Government Exhibit 69C helps authenticate Government

Exhibit 69D. According to Government Exhibit 69C, Reilly was

going to send Fuentes a radiotelegram containing instructions

regarding his arrival in Sri Lanka and how much "ballast" Fuentes

24

should arrive with. One day after receiving this radiotelegram,

Fuentes received Government Exhibit 69D, a radiotelegram from

Annapolis that was signed "COALCOAST" and stated "SUGGEST ARRIVE

COLOMBO PM 14TH WITH ONLY 500 TONS BALLAST ADVISING AGENTS OTHERS

DETAILS LATER CONFIRM ROMO." R. app. at 1215. The log of the

ship's outgoing calls and radiotelegrams indicates that Fuentes

called Reilly's home phone number on October 9, the following

day, id. at 1210, and Fuentes testified that both the

radiotelegram and Reilly's statements on the phone were

instructions to dump all but 500 tons of the remaining ash, id.

at 719-20. The radiotelegram admitted as Government Exhibit 69D

and its relationship (1) to Berbillis's earlier radiotelegram,

(2) to the record of Fuentes's call to Reilly and (3) to

Fuentes's testimony, authenticate Government Exhibit 69D and

indicate that it came from Reilly. It is unlikely that someone

other than Reilly would use the alleged code word "ballast," and

send Fuentes instructions regarding his arrival in Colombo and

how many tons of ballast to arrive with, especially in light of

Berbillis's earlier radiotelegram. See 5 Weinstein's Evidence

¶901(b)(4)[01] at 901-66 ("The use of code words or other names

or nuances of speech particularly known or used by the purported

writer can authenticate a writing.").

Fuentes received a second radiotelegram on October 9

that also was signed "COALCOAST" and instructed him to go to

Singapore instead of to Sri Lanka. See R. app. at 1216. The

circumstances indicate that Reilly also sent this radiotelegram,

Government Exhibit 69E. After receiving this radiotelegram,

25

Fuentes sent a radiotelegram (Government Exhibit 69F) to

Berbillis, informing him that the ship was going to Singapore.

Id. at 1217. Subsequently, on October 15, Fuentes received an

unsigned radiotelegram (Government Exhibit 69G) sent from

Annapolis that stated, "DISPOSE 500 BALLAST PRIOR ARRIVAL

SINGAPORE . . . CONFORM [sic] ROMO, COASTAL CARRIERS CORPORATION

ANNAPOLIS MARYLAND RCA 205654 OR T/X 7108679557." Id. at 1218.

Fuentes testified that he interpreted the message as an

instruction to dump the remaining 500 tons of ash. Id. at 725.

Fuentes's testimony, the reference to the "500 BALLAST" which

appeared earlier in Government Exhibit 69D, the references to

Coastal Carriers and its telex number in Annapolis, and the

context of the radiotelegram more than suffice to authenticate

this radiotelegram and to support the inference that Reilly sent

it. Again, it is unlikely that someone other than Reilly would

use the alleged code word "ballast," be aware of the facts that

the ship had only 500 tons of ash remaining in its holds and that

it was scheduled to arrive in Singapore, and send Fuentes

instructions to dispose of the remaining ash.

On the day that Fuentes received this radiotelegram,

Fuentes sent another radiotelegram to Berbillis (Government

Exhibit 69H) informing him that the ship's arrival in Singapore

would be delayed until November 5, due to "TROUBLES WITH DOZZER

AND GENERATORS ETC ETC PLUS FINAL CLEANING HARDER THAN EXPECTED."

Id. at 1219. Fuentes testified that on the following day, he

spoke with Reilly about the ash dumping process, id. at 726, and

the log of the ship's outgoing calls and radiotelegrams confirms

26

that he called Reilly's home phone number that day, id. at 1210.

Finally, on October 19, a letter bearing the typed signature of

Reilly was faxed from Coastal Carriers to the American Bureau of

Shipping, informing it that the Khian Sea would arrive in

Singapore "for completion of class work commenced in Bijela,

Yugoslavia." See U.S. app. at 261. Reilly knew that the "class

work" could not be completed until the ship's holds were empty.0

Thus, the source, typed signature, and message indicate that

Reilly sent this letter, and support our conclusion that Reilly

sent the radiotelegrams originating in Annapolis, and that,

having authorized Berbillis to communicate with Fuentes on his

behalf, Reilly was informed of the contents of their

correspondence.

Reilly argues that four of the radiotelegrams allegedly

sent from the Khian Sea to Athens, Greece, during the period when

the crew allegedly was dumping ash into the Indian Ocean were not

properly authenticated because, although they bore Carcamo's

initials, "Carcamo himself testified that he 'didn't transmit any

message' during that period because of 'captain's order' not to

do so." See R. br. at 40 n.8 (quoting R. app. at 885-86).

However, Fuentes testified that he only instructed Carcamo not to

communicate with passing ships during the dumping operation, and

that the Khian Sea remained in contact with Annapolis. See R.

0

On August 17, 1988, the American Bureau of Shipping sent a

letter to Reilly informing him that its surveyor could not

conduct the examination required for reclassification of the

Khian Sea because "the vessel remains about half loaded with

cargo," see U.S. app. at 259.

27

app. at 837-38. It is well-established that "upon consideration

of the evidence as a whole, if a sufficient foundation has been

laid in support of introduction, contradictory evidence goes to

the weight to be assigned by the trier of fact and not to

admissibility." Graham, Federal Practice and Procedure: Evidence

§ 6821 at 850 (citation omitted); 5 Weinstein's Evidence

¶901(a)[01] at 901-17 ("The issue of credibility and probative

force is for the jury.").

Thus, we conclude that the evidence was more than

adequate to authenticate the 35 radiotelegrams admitted into

evidence. Moreover, even if the four incoming radiotelegrams

that the evidence does not link to Reilly were not authenticated

properly, see R. app. at 1201 (68D), 1202 (68E), 1226 (70A), 1228

(70C), their admission into evidence was harmless.0 "Trial error

is harmless if it is highly probable that the error did not

affect the judgment." United States v. Copple, 24 F.3d 535, 546

(3d Cir. 1994) (citing United States v. Simon, 995 F.2d 1236,

1244 (3d Cir. 1993)). See also Lippay v. Christos, 996 F.2d

1490, 1500 (3d Cir. 1993). We have held that "[h]igh probability

exists if the court has a 'sure conviction that the error did not

prejudice the defendant.'" Copple, 24 F.3d at 546 (quoting

Simon, 955 F.2d at 1244). As the government argues, "[t]he jury

could reasonably find that the radiotelegrams introduced as GE

69D and 69G (R. app. 1215, 1218) were orders from Reilly to dump

ash into the ocean." See U.S. br. at 27. Consequently, we are

0

These radiotelegrams should not be confused with the four

radiotelegrams the Khian Sea sent to Athens.

28

convinced that the district court's admission of the four

incoming radiotelegrams not linked to Reilly did not prejudice

him, as these radiotelegrams only provided additional context for

the truly incriminating radiotelegrams which the evidence did

link to Reilly.

B. Did the radiotelegrams constitute inadmissible

hearsay?

Fed. R. Evid. 801 defines hearsay as a "statement other

than one made by a declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted." Hearsay is generally inadmissible because

'the statement is inherently untrustworthy:

the declarant may not have been under oath at

the time of the statement, his or her

credibility cannot be evaluated at trial, and

he or she cannot be cross-examined.'

United States v. Console, 13 F.3d at 656 (quoting United States

v. Pelullo, 964 F.2d 193, 203 (3d Cir. 1992)). "We exercise

plenary review over the district court's interpretation of the

Federal Rules of Evidence but review a ruling based on a

permissible interpretation of a rule for abuse of discretion."

Console, 13 F.3d at 656 (citations omitted).

We accept Reilly's contention that the incoming

radiotelegrams to the Khian Sea were the product of three out-of-

court "statements": (1) the sender's statement to a coastal

station operator, (2) the coastal station's transmission of the

message in Morse code to the Khian Sea, and (3) Carcamo's

documenting of the message. See R. br. at 44. Rule 805 provides

that, "[h]earsay included within hearsay is not excluded under

29

the hearsay rule if each part of the combined statements conforms

with an exception to the hearsay rule." See Fed. R. Evid. 805.

However, Reilly argues that each of these "statements"

constitutes inadmissible hearsay and that therefore the district

court abused its discretion by admitting the incoming

radiotelegrams into evidence. See R. br. at 43-48. We disagree.

Our review indicates that each of the three

"statements" reflected in 13 of the 17 incoming radiotelegrams in

evidence, the 12 from Reilly and the one from Berbillis in

Greece, was admissible. The initial statement reflected in the

incoming radiotelegrams, the statement by the sender to a coastal

station operator, consists of several components: (1) the

message; (2) the radiotelegram's point of origin and its

destination; and (3) the date on which the radiotelegram was

handed in to the coastal station operator. None of the messages

contained in the incoming radiotelegrams constitute hearsay

because they consist largely of instructions to Fuentes. See R.

app. at 1189 (Govt. Exh. 67A), 1192 (Govt. Exh. 67D), 1193 (Govt.

Exh. 67E), 1199 (Govt. Exh. 68B), 1201 (Govt. Exh. 68D), 1202

(Govt. Exh. 68E), 1203 (Govt. Exh. 68F), 1205 (Govt. Exh. 68H),

1206 (Govt. Exh. 68I), 1207 (Govt. Exh. 68J), 1214 (Govt. Exh.

69C), 1215 (Govt. Exh. 69D), 1216 (Govt. Exh. 69E), 1218 (Govt.

Exh. 69G), 1220 (Govt. Exh. 69I), 1226 (Govt. Exh. 70A), 1228

(Govt. Exh. 70C). "Instructions to an individual to do something

are . . . not hearsay," Graham, Federal Practice and Procedure:

Evidence § 6705 at 409, because they are not declarations of fact

and therefore are not capable of being true or false, Crawford

30

v. Garnier, 719 F.2d 1317, 1323 (7th Cir. 1983), United States v.

Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert. denied, 459 U.S.

972, 103 S.Ct. 305 (1982), United States v. Keane, 522 F.2d 534,

558 (7th Cir. 1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481

(1976).

As the government argues, the messages "were not

offered to prove the truth of the statements contained within

them, but instead to prove the fact that the certain instructions

had been given," see U.S. br. at 32; Anderson v. United States,

417 U.S. 211, 220 n.8, 94 S.Ct. 2253, 2260 n.8 (1974), and as

circumstantial evidence of Reilly's state of mind, namely his

knowledge of the ash dumping operation, 4 Weinstein's Evidence

¶801(c)[01] at 801-103 ("[a] statement offered to show the state

of mind of the declarant is analytically not hearsay if the

declarant does not directly assert the state of mind that is in

issue."). Although one of the incoming messages included

Reilly's phone number, see R. app. at 1192, another included his

name, id. at 1214, and a third included the telex number at

Coastal Carriers, id. at 1218, even these three messages do not

constitute hearsay, because they were offered only as

circumstantial evidence that Reilly sent the radiotelegrams

originating in Annapolis. See McGlory, 968 F.2d at 333

(documents did not constitute hearsay by virtue of the fact that

they contained the defendant's name and the names and phone

numbers of other individuals, as they were "offered merely as

circumstantial evidence of . . . [defendant's] association" with

the other individuals). Thus, the first component of the

31

statements by the sender to a coastal station operator, which we

refer to as the "messages," did not constitute hearsay.

Similarly, the typed signatures on the 12 radiotelegrams

originating in Annapolis did not constitute hearsay as they were

offered only as circumstantial evidence that the radiotelegrams

were sent by Reilly.0

However, the other components of the statements by the

sender to the coastal station operator, namely the point of

origin and destination of each radiotelegram, and the date on

which each radiotelegram was sent, were introduced to prove their

truth, i.e., to prove that the radiotelegrams were sent from the

point of origin to the destination on the designated date. We

consider this information to be statements made by the sender and

then relayed by the coastal station operator because the sender's

verbal and nonverbal conduct in filing a radiotelegram at a

particular coastal station on a particular date for transmission

to a designated location intentionally communicated each of these

facts to the coastal station operator for transmission. In

effect, the sender told the operator these facts so the operator

could tell them to the Khian Sea.0

0

If the typed signatures actually read "Reilly," then they would

have been offered for the truth of the matter asserted. However,

as we discuss below, such radiotelegrams would have been

admissible, nonetheless, as admissions. See Fed. R. Evid.

801(d)(2)(A). The typed signature "Kimon," see R. app. at 1214,

on the radiotelegram that the government claims is from Kimon

Berbillis, is admissible on this basis. See Fed. R. Evid.

801(d)(2)(C).

0

If the government had called a coastal station operator as a

witness, and the operator had testified regarding the receipt and

transmission of the messages and laid the foundation for the

introduction of his or her "statements" pursuant to the business

32

In the 12 radiotelegrams originating in Annapolis,

these "statements" regarding the point of origin and destination

of the radiotelegram, and the date on which the radiotelegram was

sent were admissible pursuant to Federal Rule of Evidence

801(d)(2)(A). Rule 801(d)(2)(A) provides that statements made by

a party to an action and offered into evidence by an opposing

party do not constitute hearsay. As we discussed above, there is

substantial evidence indicating that Reilly sent the 12

radiotelegrams originating in Annapolis.0 Annapolis was the site

of the Coastal Carriers office where Reilly worked, and the

contents of these 12 radiotelegrams, combined with other

circumstantial evidence and Fuentes's testimony indicate that

they were sent by Reilly.

In addition to the circumstantial evidence we have

already discussed, the relationship between Reilly's three sets

of meetings with Fuentes and certain radiotelegrams that Fuentes

records exception to the hearsay rule, we would not need to take

such a complex layered approach to these components of the

radiotelegrams. But inasmuch as the operator or operators did

not testify and the radiotelegrams were not introduced as

business records of the coastal sending station, our complex

layered approach to the hearsay analysis is necessary.

0

The dissent maintains that we "effectively and impermissibly

equate[] our evidentiary rules governing admissibility with the

slight showing required for authentication." See dissent

typescript at 5. It is true that we rely on the evidence linking

Reilly to the 12 radiotelegrams originating in Annapolis and the

radiotelegram from Berbillis both as evidence of the

radiotelegrams's authenticity and as evidence that the statements

contained in the radiotelegrams do not constitute hearsay. We do

so, however, not because we equate the showings for authenticity

and admissibility, but because the substantial quantity of

evidence linking Reilly to these radiotelegrams satisfies not

only the "slight" showing required for authenticity, but also the

greater showing required for admissibility.

33

received subsequent to these meetings indicates that the

radiotelegrams originating in Annapolis were sent by Reilly.0

First, Reilly met with Fuentes in Ft. Pierce, Florida, and

according to Fuentes, promised the ship's officers and crew

members additional compensation to begin dumping the ash while en

route to West Africa. Subsequent to this meeting, Fuentes

received three radiotelegrams from Annapolis, the first

instructing him to "SUSPEND OPERATIONS" and return to

Philadelphia, see R. app. at 1189, the second instructing him to

call "301 544 2909," id. at 1192, Reilly's home phone number, and

0

The dissent contends that our "hearsay analysis is fundamentally

flawed because it is premised on the assumption that the 12

radiotelegrams allegedly sent by Reilly originated in Annapolis,

where Reilly lived and worked. . . . Yet, the Government never

adduced any evidence, apart from the disputed documents

themselves, that the messages contained in the radiotelegrams had

actually originated in Annapolis." See dissent typescript at 7.

First of all, our hearsay analysis is not premised solely on the

evidence that 12 of the radiotelegrams originated in Annapolis.

Evidence that these radiotelegrams originated in Annapolis was

only one of many pieces of evidence linking these 12

radiotelegrams to Reilly. Other pieces of evidence included

Fuentes's testimony, see maj. typescript at 17, the messages and

typed signatures contained in the radiotelegrams, id. at 19-20,

the Khian Sea's logs of outgoing radiotelegrams and phone calls

which corroborate Fuentes's testimony that he was taking

directions from Reilly, id. at 20-21, Reilly's admission that he

communicated with the Khian Sea by radiotelegram, id. at 17,

Clare Dobbins's testimony that she witnessed Reilly receive

radiotelegrams from the Khian Sea, id., and the relationship

between the messages in the radiotelegrams, Fuentes's testimony,

the activities of the Khian Sea, and the timing of Reilly's three

sets of meetings with Fuentes, id. at 21-27, 34-36. Second of

all, the "documents themselves" are not the only evidence

indicating that the radiotelegrams originated in Annapolis. The

relationship between the outgoing radiotelegrams and calls to

Annapolis, and the 12 radiotelegrams indicating that they were

"handed in at Annapolis" also indicates that these radiotelegrams

were, in fact, sent from Annapolis.

34

the third containing instructions regarding the ship's arrival in

Philadelphia, id. at 1193.

Once the ship returned to Philadelphia, Reilly met with

Fuentes again, and according to Fuentes, they discussed the

execution of the dumping plan they had developed. Subsequent to

this meeting, after the ship had left Philadelphia, Fuentes

received a radiotelegram from Annapolis instructing him to

proceed toward Cape Verde, away from the United States until the

"MISSION" was accomplished, id. at 1199, along with other

radiotelegrams containing instructions on how to proceed, id. at

1203, 1205, 1206, 1207. According to Fuentes, the crew began

dumping the ash into the Atlantic Ocean and continued to do so

until problems developed with the machinery they were using, at

which point, Fuentes sent a radiotelegram to Reilly stating that

3500 tons of "CARGO" remained on board, and that the equipment

needed to off-load the ash had broken. Id. at 1209.

Finally, the third place in which Reilly and Fuentes

met was Bijela, Yugoslavia. Fuentes testified that at this

meeting, Reilly told him that: (1) Kimon Berbillis would give him

instructions regarding the remainder of the trip; (2) if no

country agreed to accept the remaining ash, it would be dumped in

the ocean; and (3) they would refer to the ash as "ballast." See

D. app. at 299, 304-05. Following this meeting, Fuentes received

a radiotelegram sent from Greece by Berbillis instructing him to

arrive in Sri Lanka with only 500 tons of ballast (the 13th

incoming radiotelegram with admissible statements), see R. app.

at 1214, a radiotelegram originating in Annapolis confirming

35

these instructions, id. at 1215, another radiotelegram from

Annapolis instructing him to proceed to Singapore instead of Sri

Lanka, id. at 1216, a third radiotelegram from Annapolis

instructing him to dispose of the remaining 500 tons of "BALLAST"

before arriving in Singapore, id. at 1218, and a fourth

radiotelegram with instructions regarding the ship's arrival in

Singapore, id. at 1220. Thus, the relationship between Fuentes's

testimony regarding the substance of his meetings with Reilly and

the content of the messages that Fuentes received following his

meetings with Reilly confirms that the messages originating in

Annapolis were from Reilly.

The radiotelegram originating in Greece bore the typed

signature "KIMON," Berbillis's first name. Id. at 1214.

Fuentes's testimony regarding his contact with Berbillis confirms

that the radiotelegram was from Berbillis, and indicates that

Reilly had authorized Berbillis to make the "statements"

contained in the radiotelegram to Fuentes. In fact, according to

Fuentes, Reilly introduced him to Berbillis and specifically told

him to take instructions from Berbillis once the ship left

Yugoslavia. Id. at 714-17, 723-24.0

"Rule 801(d)(2)(C) specifically excludes from the

definition of hearsay any statements used against a party which

were made by another person authorized by the party to make a

0

The dissent states that "there is no . . . proof to establish

that Berbillis . . . 'was acting on behalf of Reilly or at his

behest.'" See dissent typescript at 13. However, we find

Fuentes's testimony sufficient to establish the relationship

between Reilly and Berbillis.

36

statement concerning the subject." Lightning Lube, Inc. v. Witco

Corp., 4 F.3d 1153, 1198 (3d Cir. 1993). In light of the

evidence indicating that Reilly authorized Berbillis to send

instructions to Fuentes on his behalf, the statements made by

Berbillis to a coastal station operator, see R. app. at 1214, are

admissible pursuant to Rule 801(d)(2)(C). See Graham, Federal

Practice and Procedure: Evidence §6722 at 503-04 ("Authorization

to make a statement concerning the subject matter may . . . be

established by the acts or conduct of the principal or his

statements to the agent or third party."); see also Michaels v.

Michaels, 767 F.2d 1185, 1201 (7th Cir. 1985) (held that telexes

sent by a third party to potential buyers of defendant's company

were admissible under Rule 801(d)(2)(C) because "[v]iewing the

other evidence in the light most favorable to the plaintiff, . .

. [the defendant] authorized . . . [the third party] to act as

the Company's broker and contact . . . potential buyers."), cert.

denied, 474 U.S. 1057, 106 S.Ct. 797 (1986). Thus, in 13 of the

17 incoming radiotelegrams in evidence, all components of the

statements by the sender to the coastal station operator, namely

the messages, the "statements" regarding the point of origin and

destination of each radiotelegram, and the "statements" regarding

the date on which each radiotelegram was sent, were admissible.

The second set of "statements" reflected in the

incoming radiotelegrams consists of the statements made by the

coastal operators to the Khian Sea. In the 12 radiotelegrams in

evidence sent by Reilly and the radiotelegram in evidence sent by

Berbillis, the statements by the coastal operators to the Khian

37

Sea also were admissible pursuant to Rule 801(d)(2)(C) because

they were "statement[s] by a person [the coastal operators]

authorized by . . . [Reilly, either directly or indirectly

through Berbillis] to make a statement concerning the subject" of

the radiotelegram. Fed. R. Evid. 801(d)(2)(C).

For the same reason, the third "statement" reflected in

the 12 radiotelegrams sent by Reilly and the one from Berbillis,

Carcamo's documenting of the radiotelegrams, does not constitute

hearsay. Id.0 Moreover, Carcamo's documenting of the incoming

radiotelegrams also would be admissible under Rule 803(6), the

exception for records of regularly conducted business. See U.S.

br. at 33. This exception authorizes the admission of:

[a] memoranda, report, record, or data

compilation, in any form, of acts, events,

conditions, opinions, or diagnoses, made at

or near the time by, or from information

transmitted by, a person with knowledge, if

kept in the course of a regularly conducted

business activity, and if it was the regular

practice of that business activity to make

the memoranda, report, record, or data

compilation, all as shown by the testimony of

the custodian or other qualified witness,

unless the source of information or the

method or circumstances of preparation

indicate lack of trustworthiness.

0

The dissent contends that there is no proof that Reilly

authorized coastal station operators to transmit the

radiotelegrams or authorized Carcamo to decode and document the

radiotelegrams. See dissent typescript at 13-14. In our

opinion, Fuentes's testimony, Reilly's admission that he

communicated with the Khian Sea by radiotelegram, Clare Dobbins's

testimony that she witnessed Reilly receive radiotelegrams from

the Khian Sea, and the plethora of other circumstantial evidence

linking Reilly to the radiotelegrams more than suffice to

establish that Reilly authorized the coastal station operators

and Carcamo to play their respective roles in the transmission of

the radiotelegrams.

38

Carcamo was a witness "qualified" to lay the foundation required

by Rule 803(6) for the admission of the radiotelegrams because as

the radio operator for the Khian Sea, he was responsible for

creating and storing them, and had "the ability to attest to the

foundational requirements of Rule 803(6)." Console, 13 F.3d at

657.

The foundation requirements to which a

qualified witness must attest are: '(1)

[that] the declarant in the records had

knowledge to make accurate statements; (2)

that the declarant recorded statements

contemporaneously with the actions which were

the subject of the reports; (3) that the

declarant made the record in the regular

course of the business activity; and (4) that

such records were regularly kept by the

business.'

Id. at 657 (quoting United States v. Furst, 886 F.2d 558, 571 (3d

Cir. 1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878 (1990)).

Carcamo testified to the four foundation requirements

of the business records exception by testifying that: he was the

radio operator for the Khian Sea during the relevant period of

time, see R. app. at 863; that he was responsible for contacting

the coastal stations to receive and transmit radiotelegrams for

the ship and for keeping records of all communications to and

from the ship, id. at 863-64; that the coastal stations

transmitted messages to the ship in Morse code, id. at 866-67;

39

that he had years of experience as a radio operator and was

trained in Morse code, id. at 867-68; and that he decoded the

Morse code signals, and documented the messages as soon as he

received them, id., and then delivered the written messages to

Fuentes, id. at 867. Carcamo also kept a file of the incoming

and outgoing messages. Id. at 863, 869. Carcamo's testimony

"satisfied the foundation requirements of Rule 803(6) because it

'demonstrate[d] that the records . . . [of the radiotelegrams]

were made contemporaneously with the act the documents

purport[ed] to record by someone with knowledge of the subject

matter, that they were made in the regular course of business,

and that such records were regularly kept by the business.'"

Console, 13 F.3d at 657 (quoting United States v. Pelullo, 964

F.2d at 201). Moreover, Fuentes's testimony corroborated

Carcamo's testimony regarding his responsibilities for

documenting and storing incoming and outgoing radiotelegrams, and

the procedures employed for transmitting and receiving the

radiotelegrams. See R. app. at 653-55, 668-69.

As we have noted, the 12 radiotelegrams originating in

Annapolis incorporate messages provided originally by Reilly and

the radiotelegram from Berbillis incorporates a message which

Reilly authorized Berbillis to send. Moreover, all 13 of these

radiotelegrams incorporate the Morse code transmissions by

coastal station operators. Under Rule 803(6), any statement

incorporated into a business record must be verified by the party

recording the statement, made by a party under "a duty to

report," or admissible pursuant to another exception to the

40

hearsay rule. See Graham, Federal Practice and Procedure:

Federal Rules of Evidence § 6757, at 641-43; Console, 13 F.3d at

657-58; Fed. R. Evid. 805. As we have indicated, the statements

by Reilly were admissible under Rule 801(d)(2)(A), and the

statements by Berbillis and the coastal station operators were

admissible under Rule 801(d)(2)(C).

Thus, the district court did not err in admitting the

12 incoming radiotelegrams sent by Reilly or the radiotelegram

sent by Berbillis, as each of the three "statements" reflected in

these radiotelegrams was not hearsay or was admissible under an

exception to the hearsay rule. Although the district court may

have erred in admitting the other four incoming radiotelegrams

into evidence, see R. App. at 1201, 1202, 1226, 1228, as we

indicated above, such an error would be harmless.

Moreover, the district court also did not err by

admitting the 18 outgoing radiotelegrams into evidence. The

outgoing radiotelegrams consist of two "statements": (1)

Fuentes's statement to Carcamo, and (2) Carcamo's documenting of

the statement. Fuentes's statements were admissible pursuant to

Rule 801(d)(1) which provides that a statement is not hearsay if

[t]he declarant testifies . . . and is

subject to cross-examination concerning the

statement, and the statement is . . . (B)

consistent with his testimony and is offered

to rebut an express or implied charge against

the declarant of recent fabrication or

improper influence or motive.

As the government points out, the defendants suggested to the

jury that Fuentes had ulterior motives for cooperating with the

government and was fabricating testimony to protect himself. See

41

U.S. app. at 82-90A. Thus, Fuentes's statements in the

radiotelegrams were admissible to rebut these suggestions.

The second "statement" reflected in the outgoing

radiotelegrams, Carcamo's documenting of Fuentes's statements,

was admissible pursuant to Rule 803(6). As we discussed above,

Carcamo testified to the four foundation requirements of Rule

803(6). Specifically with regard to the outgoing radiotelegrams,

Carcamo testified that he typed copies of the handwritten

messages Fuentes asked him to send, and then sent a copy to Sait

Electronics and retained one for the ship's records. See R. app.

at 866. Again, Fuentes's testimony corroborated Caracamo's. Id.

at 653-55.

Thus, neither the 13 incoming radiotelegrams which the

evidence links to Reilly nor the 18 outgoing radiotelegrams

constituted inadmissible hearsay, and the admission of the four

incoming radiotelegrams not linked to Reilly was harmless.

C. Were the questions posed to Reilly too ambiguous to

allow his response to form the basis of a false

declarations conviction?

At the contempt hearing held on December 15, 1988, in

the Eastern District of Pennsylvania, Reilly was asked, under

oath, whether he had "any knowledge . . . as to what happened to

the incinerator residue" on board the Khian Sea, or "any

knowledge as to the means by which it might be ascertained what

happened to the residue." See U.S. app. at 275. Reilly

responded "[n]o, sir" to both questions. Id.

42

In January 1990, Reilly voluntarily appeared before a

federal grand jury for the District of Delaware that was

investigating potential ocean dumping violations in connection

with the activities of the Khian Sea between September 1986 and

December 1988. Id. at 285-403. Reilly was informed that the

grand jury was investigating the disposal of ash from the Khian

Sea and was advised of his right to leave and seek legal counsel.

See U.S. app. at 288. He then testified that he had not directed

anyone to remove the ash from the ship, id. at 377-78, and that

he had no knowledge of what happened to the ash, id. at 380-81.

On the basis of this testimony, Reilly was indicted in

two counts for knowingly making false material declarations. 18

U.S.C. § 1623(a). Prior to trial, Reilly challenged the Delaware

indictment alleging that the questions he was asked before the

grand jury were too vague and ambiguous to support a conviction

under section 1623(a). The district court rejected this

argument. See United States v. Reilly, 811 F. Supp. at 180.

However, Reilly now contends that both questions asked before the

Delaware grand jury and questions posed at the contempt hearing

held in the Eastern District of Pennsylvania were too vague and

ambiguous to support his false declarations convictions. See R.

br. at 49-56. We disagree.

First, Reilly claims that the following question posed

before the grand jury was too vague and ambiguous: "What happened

to the ash?". According to Reilly, "[t]here was nothing about

the context within which 'What happened to the ash?' was asked

that signified that the questioner did not care where, in any

43

specific sense, the ash was off-loaded, but instead was concerned

only with whether it was disposed of somewhere -- anywhere -- in

the ocean." Id. at 52. We reject Reilly's suggestion that

because he thought he was being asked exactly "[w]here in the

ocean" the ash was off-loaded he was not testifying falsely by

stating that he did not know what happened to the ash. There is

no doubt that the question "[w]hat happened to the ash?" was

sufficiently precise to support Reilly's false declaration

conviction. A person who knows that the ash was dumped in the

ocean knows what happened to the ash. The grand jury, after all,

did not ask him where it was dumped. Moreover, we reject

Reilly's argument that the grand jury's question, "[d]id you

direct anyone to take anything off that ship after it left

Yugoslavia?", see U.S. app. at 377-78, was vague due to the use

of the term "direct" and the placement of the modifier "after it

left Yugoslavia."

We also find that the questions posed in the district

court contempt proceeding regarding Reilly's "knowledge" were

sufficiently precise. Reilly was asked: "[d]o you have any

knowledge . . . as to what happened to the incinerator residue on

board the vessel?" and "[d]o you have any knowledge as to the

means by which it might be ascertained what happened to the

residue on board the vessel?". See id. at 237. We do not

believe that in the context of the questions, the term

"'knowledge,' without further definition, is inherently

ambiguous." See R. br. at 54 (citing United States v. Cook, 497

F.2d 753, 764 & n.4 (9th Cir. 1972) (dissenting opinion),

44

majority opinion withdrawn and dissenting opinion reinstated on

rehearing as majority position in relevant part, 489 F.2d 286

(9th Cir. 1973)).

Reilly cites Bronston v. United States, 409 U.S. 352,

361-62, 93 S.Ct. 595, 601-02 (1973), in support of his argument

that the questions underlying his false declaration convictions

were excessively vague. However, Bronston is distinguishable

because, as we noted in United States v. Slawik, 548 F.2d 75, 86

(3d Cir. 1977), "Bronston involved literally true but misleading

answers." In Bronston, 409 U.S. at 361-62, 93 S.Ct. at 601-02,

the Supreme Court held that the perjury statute, 18 U.S.C. §1621,

does not apply to statements that are literally true, even if

these statements create an implication which is false. The

Supreme Court's reasoning in Bronston applies equally to the

false declarations statute, section 1623. See Slawik, 548 F.2d

at 83 (To violate 18 U.S.C. § 1623, testimony must be "both false

and material. If literally true, there was no offense, even if .

. . [the defendant's] answer was deliberately misleading.")

(citing Bronston, 409 U.S. 352, 93 S.Ct. 595 (1973)). However,

this case bears no resemblance to Bronston.

Bronston involved a perjury prosecution arising from a

bankruptcy hearing at which one of the defendant's creditors

asked him whether he had ever had a Swiss bank account, and the

defendant responded by stating that his company once had a Swiss

bank account for six months. Id. at 354, 93 S.Ct. at 598. Though

the defendant's answer was unresponsive and created the false

implication that he had never had a Swiss bank account, his

45

literal statement regarding his company's Swiss bank account was

true. Id. Therefore, the Supreme Court concluded that he could

not be convicted of perjury as Congress did not intend to

criminalize "answers unresponsive on their face but untrue only

by 'negative implication.'" Id. at 361, 93 S.Ct. at 601.

We cannot classify Reilly's responses in the district

court or to the grand jury as "literally true." Moreover, we

have "eschew[ed] a broad reading of Bronston," id., and held that

[a]s a general rule, the fact that there is some ambiguity in a

falsely answered question will not shield the respondent from a

perjury or false statements prosecution. . . . Normally, it is

for the petit jury to decide which construction the defendant

placed on the question. . . . It is difficult to define the

point at which a question becomes so ambiguous that it is not

amenable to jury interpretation. We have stated that the point

is reached 'when it [is] entirely unreasonable to expect that the

defendant understood the question posed to him.' Slawik, 548 F.2d

at 86. Other courts have said that '[a] question is

fundamentally ambiguous when it "is not a phrase with a meaning

about which men of ordinary intellect could agree, nor one which

could be used with mutual understanding by a questioner and

answerer unless it were defined at the time it were sought and

offered as testimony."'

United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir. 1987)

(quoting United States v. Lighte, 782 F.2d 367, 375 (2d Cir.

1986)) (some internal citations omitted). Under either

construction of the Bronston standard for ambiguity, it is clear

that the questions posed to Reilly were not so ambiguous that

they were no longer amenable to jury interpretation.

D. Did Reilly's false declarations

indictment adequately allege the falsity

of Reilly's responses to the grand jury

and the district court?

Reilly argues that the indictments on which his false

declaration convictions were based were defective because they

46

failed to allege adequately the falsity of his responses to the

district court and the grand jury. See R. br. at 56-60. We have

held that "a conviction under 18 U.S.C. § 1623 may not stand

where the indictment fails to set forth the precise falsehood

alleged and the factual basis of its falsity with sufficient

clarity to permit a jury to determine its verity and to allow

meaningful judicial review of the materiality of those

falsehoods." Slawik, 548 F.2d at 83. It is undisputed that the

Delaware indictment alleged that Reilly's responses to the grand

jury were false because he knew the ash on board the Khian Sea

had been dumped into the water in and around the Indian Ocean.

See R. br. at 57-58. On this basis, the district court held that

the Delaware indictment adequately alleged the falsity of

Reilly's statements. Reilly, 811 F. Supp. at 179. The

Pennsylvania indictment alleged that Reilly's responses to the

district court were false because he knew the ash on board the

Khian Sea had been dumped into the water in and around the

Atlantic Ocean and Indian Ocean. We conclude that both the

Delaware indictment and the Pennsylvania indictment adequately

alleged the falsity of Reilly's statements. See R. br. at 57-58.

Reilly analogizes this case to United States v.

Tonelli, 577 F.2d 194, 198 (3d Cir. 1978), in which we held that

a false declarations indictment is defective when it "fails to

specify in what particular the defendant's reply was false."

However, Tonelli is distinguishable. In Tonelli, the indictment

alleged that the defendant made a false declaration when he

denied having participated in placing certain pension fund monies

47

in certificates of deposit. Tonelli, 577 F.2d at 197. Although

the "defendant's initial denial of involvement, standing alone,

was not true, . . . when the prosecutor subsequently defined

'participation in the placement of . . . monies . . . for the

purchase' as including a recommendation [to use a particular

bank, the defendant] . . . answered truthfully." Id. at 198.

Thus, at least one of the defendant's responses to the question

was "literally true." Moreover, the indictment quoted only the

first, more general question, "ignoring the qualifying

definitions [subsequently] used by the prosecutor," and therefore

it was "misleading." Id.

By identifying Reilly's responses that he had no idea

what happened to the ash or how it might be ascertained what

happened to the ash and alleging that Reilly knew the ash had

been dumped into the ocean, the indictments in this case, unlike

the indictment in Tonelli, "set forth the precise falsehood[s]

alleged and the factual basis of . . . [their] falsity with

sufficient clarity to permit a jury to determine . . . [their]

verity and to allow meaningful judicial review of the materiality

of those falsehoods." Slawik, 548 F.2d at 83. The indictment

also alleged that Reilly responded falsely when he denied having

directed the dumping of the ash from the Khian Sea, and as the

government concedes, "there was no specific averment in the . . .

Wilmington indictment that Reilly had in fact directed the

dumping." See U.S. br. at 49. However, unlike the questions in

Tonelli, the grand jury's question regarding whether Reilly

directed the dumping of ash was quite precise and was not

48

excerpted in the indictment in a misleading manner. Moreover, we

see no evidence that Reilly's response to this question or any of

the other related questions was "literally true." Thus, in the

circumstances, the indictment in this case, unlike the indictment

in Tonelli, adequately specified "in what particular the

defendant's reply was false." Tonelli, 577 F.2d at 198.

E. Was the question posed to Dowd too ambiguous to

allow his response to form the basis of a false

declarations conviction?

Dowd appeared before a federal grand jury for the

District of Delaware on February 14, 1990. See U.S. app. at 405-

95. Based on his testimony before the grand jury, Dowd was

charged with one count of knowingly making a false declaration

under oath. While this count alleged that Dowd knowingly made

three false declarations before the grand jury, the district

court instructed the jury that a conviction required proof beyond

a reasonable doubt that Dowd knowingly made only one false

declaration. See U.S. app. at 231. The indictment listed the

following three questions and allegedly false declarations:

A GRAND JUROR: Do you know what

happened to the ash?

THE WITNESS: No.

A GRAND JUROR: You have no idea?

THE WITNESS: No, I don't. I honestly

have not been on that ship for two and a half

years.

. . .

A GRAND JUROR: . . . [y]ou didn't ask

where it went? You didn't want to know where

it went?

THE WITNESS: No, I didn't ask, and I

don't know. All right? Nor did he tell me.

49

See D. app. at 212-13.

The jury's answers to special interrogatories indicate

that it found Dowd guilty only of making a knowingly false

declaration in response to the question "You have no idea?" See

U.S. app. at 234-35. The jury did not return a verdict with

respect to Dowd's response to the question "[d]o you know what

happened to the ash?" and found Dowd "not guilty" of violating 18

U.S.C. § 1623(a) based on his response to the question "[y]ou

didn't ask where it went? You didn't want to know where it

went?". Like Reilly, Dowd asserts that his statement was made in

response to a question that was too ambiguous to support his

conviction for making a false declaration. The district court

rejected this argument and so do we. See Reilly, 811 F. Supp. at

181.

As the government argues, viewed in context, the

question posed to Dowd was "you have no idea [what happened to

the ash]?" See U.S. br. at 51. Dowd concedes that the question

"could reasonably be interpreted simply as a restatement of the

preceding question," and that "[u]nder this interpretation, the

question essentially asked . . . '[a]re you certain you do not

know what happened to the ash?" See D. br. at 19. However, Dowd

contends that the question also could be construed to call for

"intelligent speculation," id. at 22, that the jury's responses

to the special interrogatories confirm that this was the

construction it adopted, id. at 20. He further argues that a

"jury is not free to attempt to decipher which of two meanings to

50

accept," id. at 21 (citing United States v. Manapat, 928 F.2d

1097, 1101 (11th Cir. 1991)).

We conclude that the question was not "fundamentally

ambiguous." First, a jury is generally free to determine the

meaning the defendant ascribed to a question. As we noted above,

when there is "some ambiguity[,] . . . [n]ormally, it is for the

petit jury to decide which construction the defendant placed on

the question." United States v. Ryan, 828 F.2d at 1015. The

question posed to Dowd, like those posed to Reilly, "is not so

ambiguous that it is not amenable to jury interpretation" because

it is reasonable "'to expect that the defendant understood the

question.'" Id. (quoting Slawik, 548 F.2d at 86). The

prosecutor expressly instructed Dowd that the questions were

intended to determine what he knew, and that if he didn't know

something, he should "just say . . . [I] don't know." See U.S.

app. at 439; see also id. at 446 ("[i]f you don't know something,

tell us you don't know"). Moreover, Dowd's responses indicate

that he was aware that he should respond based on his own

knowledge, and that he should define his own "knowledge" to

include information obtained from speaking to others.0 See e.g.,

id. at 453 ("[t]o my knowledge, no"), 478-80 ("A. . . . The

repair work done in Singapore, in Yugoslavia, wasn't complete

0

The dissent contends that the question "You have no idea?" was

"fatally ambiguous" because it "is so fundamentally ambiguous

that it would be entirely unreasonable to expect that [Dowd]

understood it." Dissent typescript at 23. As we stated above,

we conclude that the question posed to Dowd was not "fatally

ambiguous" because it is reasonable "'to expect that the

defendant understood the question.'" United States v. Ryan, 828

F.2d at 1015 (citation omitted).

51

because the vessel could not complete its survey . . . [b]ecause

there was ash in the cargo. . . . A GRAND JUROR: Did you just

say when the ship got to Yugoslavia it still had the ash on it?

THE WITNESS: I wasn't there. I was told that. Okay. Yes.").

Second, Dowd's reliance on the jury's responses to the

special interrogatories is inappropriate. The jury's responses

to the special interrogatories are immaterial to our inquiry

because the jury was not required to make a finding regarding

more than one of Dowd's three allegedly false responses, and it

did not make a finding regarding Dowd's response to the first of

the three questions identified in the false statements count.

Moreover, as we pointed out in United States v. Vastola, 899 F.2d

211, 225 (3d Cir.), cert. granted and judgment vacated on other

grounds, 497 U.S. 1001, 110 S.Ct. 3233 (1990), principles of

estoppel do not require the verdict rendered at a single trial to

be consistent. Thus, we conclude that the question on which

Dowd's conviction rests was not too ambiguous to support it.

F. Was Dowd's response "material"?

Dowd argues that his conviction under the false

declarations statute, 18 U.S.C. § 1623, should be reversed

because the government failed to establish that his testimony was

"material" to the grand jury's investigation. We agree with the

district court's conclusion that this argument lacks merit. See

Reilly, 811 F. Supp. at 180-81. Section 1623 provides in

relevant part that

52

(a) [w]hoever under oath . . . in any

proceeding before or ancillary to any court

or grand jury of the United States knowingly

makes any false material declaration or makes

or uses any other information, including any

book, paper, document, record, recording, or

other material, knowing the same to contain

any false material declaration, shall be

fined not more than $ 10,000 or imprisoned

not more than five years or both.

Thus, "under the false declarations statute, 18 U.S.C. § 1623,

materiality is an essential element of the offense and a question

of law reserved for decision by the court." United States v.

Crocker, 568 F.2d 1049, 1056 (3d Cir. 1977) (citing Slawik, 548

F.2d at 75, 83). "It is well established that a perjurious

statement is material . . . if it has a tendency to influence,

impede, or hamper the grand jury from pursuing its

investigation." United States v. Lardieri, 497 F.2d 317, 319 (3d

Cir. 1974), on rehearing, 506 F.2d 319 (3d Cir. 1974). Moreover,

"leads to additional facts may be material even though they do

not directly reflect on the ultimate issue being investigated."

497 F.2d at 319.0 We apply a plenary standard of review to

0

See also Crocker, 568 F.2d at 1057 ("it suffices to establish

that testimony . . ., if false, [would] tend to impede an

investigation"); United States v. Phillips, 674 F. Supp. 1144,

1148 (E.D. Pa. 1987) ("A question asked of a grand jury witness

is material if it 'is such that a truthful answer could help the

inquiry, or a false response hinder it, and these effects are

weighed in terms of potentiality rather than probability. . . .

It is of no consequence that the information sought would be

merely cumulative, that the response was believed by the grand

jury to be perjurious at the time it was uttered, or that the

matters inquired into were collateral to the principal objective

of the grand jury.'") (emphasis in original) (quoting United

States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449

U.S. 995, 101 S.Ct. 534 (1980)); United States v. Schiavo, 375 F.

Supp. 475, 477 (E.D. Pa.) ("False testimony is material if it has

a natural tendency to influence the grand jury in its

investigation, and there is no need to prove the perjured

53

determine whether Dowd's testimony was material as a matter of

law. Slawik, 548 F.2d at 83.

According to Dowd, the government failed to satisfy the

materiality requirement because the question posed to Dowd could

be construed in one of two ways: (1) as a restatement of the

previous question calling for knowledge that was material to the

grand jury's investigation or (2) as a distinct question calling

for intelligent speculation, which was not material to the grand

jury's investigation. See D. br. at 24-27. Dowd analogizes this

case to Slawik, and argues that Slawik requires us to hold that

the government failed to satisfy the materiality requirement.

However, this case is distinguishable from Slawik.

In Slawik, the defendant testified that he had given

the following advice to an associate subpoenaed to testify before

a grand jury:

Look Barney [sic] you will probably only be

there a day. Get yourself legal counsel,

tell them the truth. They are not going to

hold you. You can go back to Florida.

Slawik, 548 F.2d at 82. The court held that the defendant's

conviction under section 1623 must be reversed because "[n]either

the indictment nor the bill of particulars set[] forth the grand

jury's understanding of . . . [the underlined] words," and thus

the court could not determine "whether the trial jury found that

testimony actually impeded the jury's work. The false testimony

need not be directed to the primary subject of the investigation,

it is material if it is relevant to any subsidiary issue under

consideration by the tribunal.") (citing United States v. Lococo,

450 F.2d 1196, 1199 (9th Cir. 1971), cert. denied, 406 U.S. 945,

92 S.Ct. 2040 (1972)), aff'd, 506 F.2d 1053 (3d Cir. 1974)

(table).

54

. . . [the defendant] had failed actually to advise . . . [his

associate]: (1) to tell counsel the truth, or (2) to tell the

grand jury the truth." Id. at 83. Only the latter construction

would have rendered the alleged falsehood "material," and "the

imprecision of the allegations contained in the indictment and

bill of particulars render[ed] meaningful review of materiality

impossible." Id.

This case is distinguishable from Slawik because the

indictment here set forth the meaning of Dowd's responses by

specifying that Dowd's responses "were false in that . . . [he,]

then and there well knew that the incinerator ash on board the

Khian Sea had been discharged, disposed of and off loaded from

the Khian Sea by dumping the incinerator ash into the water in

and around the Indian Ocean." See D. app. at 31. Thus, the

indictment did not permit the construction of the question "[y]ou

have no idea [what happened to the ash]?" as a question that

called for "intelligent speculation." Instead, the indictment

indicated that the question was merely a restatement of the

previous question regarding Dowd's "knowledge" of "what happened

to the ash," and, as Dowd concedes, this question and Dowd's

response to it were material to the grand jury's investigation.

G. Did the evidence support Dowd's false declaration

conviction?

Dowd also argues that if we construe the question

"[y]ou have no idea?" to mean "are you certain you do not know

what happened to the ash?", his conviction cannot stand because

55

there was insufficient evidence indicating that he "actually knew

'what happened to the ash.'" See D. br. at 28. Thus, Dowd

claims that there was insufficient evidence of the falsity of his

statement to sustain his conviction under 18 U.S.C. § 1623.

According to Dowd, Fuentes's testimony regarding whether he

discussed the disposal of the ash with Dowd was self-

contradictory. Id. at 29-31. Dowd also argues that Fuentes's

testimony regarding Dowd's instructions to tell inquiring

journalists that the ash had been left in a country whose

identity could not be revealed and to create a false log of the

route taken by the Khian Sea does not prove that Dowd knew the

ash had been dumped in the ocean. Id. at 31-34.

"We review challenges to the sufficiency of the

evidence presented at trial by ascertaining whether, viewing the

evidence in the light most favorable to the government, a

reasonable mind could find the defendant guilty beyond a

reasonable doubt of every element of the offense." United States

v. Terselich, 885 F.2d 1094, 1097 (3d Cir. 1989). Here we

conclude, viewing the evidence in the light most favorable to the

government, that a jury could have found beyond a reasonable

doubt that Dowd's statement that he had no idea what happened to

the ash was false.

We base our holding on several grounds. First,

Fuentes's testimony was not inherently self-contradictory. He

testified on direct that he asked Dowd "what would be happening

now that we have dumped the ash to the ocean and if the

journalist will be still making questions around the cargo." See

56

D. app. at 320. He then reiterated during his cross-examination

that when Dowd boarded the ship in Singapore, "I asked him,

[n]ow, what we will do, what we will do now that we have dumped

the ash in the ocean?". See U.S. app. at 95. It is true that

Fuentes admitted having told a private investigator that he did

not "tell . . . [Dowd] straight that, hey, we did . . . [the

dumping] because he already knew." See D. app. at 334. However,

as the government points out, the jury reasonably could have

found that Fuentes's earlier statement was not in conflict with

his trial testimony because "Fuentes mentioned the dumping to

Dowd only as a predicate for obtaining instructions about what to

tell the press. This may have been what Fuentes meant when he

told the investigator that he had not told Dowd 'straight' about

the dumping." See U.S. br. at 58-59. Moreover, Fuentes

clarified what he had said to the private investigator about his

conversation with Dowd by stating "[w]e [he and Dowd] discuss it,

we talk about it, but I did not make the straight question." See

D. app. at 334. Thus, we cannot conclude that as a matter of

law, Fuentes's testimony was self-contradictory or that he

retracted his earlier testimony about having discussed the

dumping with Dowd.

Second, Fuentes's other testimony regarding Dowd

supported the jury's finding that Dowd knew about the dumping. We

conclude that, viewed in the light most favorable to the

government, Fuentes's testimony that Dowd boarded the ship in

Singapore to "pickup the gear that we had been using to discharge

the ship," id. at 319-20, and instructed him to tell journalists

57

that the ash had been discharged in an unidentified country

pursuant to an agreement, see U.S. app. at 95, D. app. at 320,

and to create a false logbook documenting "another route other

than the one we have been," see id. at 324-25, is sufficient to

support the jury's finding that Dowd knew the ash had been dumped

in the ocean.

Finally, there was evidence indicating that, as

president of Coastal Carriers, Dowd played an active role in the

affairs of the Khian Sea from the moment the ash was loaded, and

this evidence also supports the conclusion that Dowd knew about

the dumping. Dowd was present when the ash was first loaded onto

the Khian Sea, see U.S. app. at 124, knew some of it was

off-loaded in Haiti, id. at 125, searched for possible sites to

discharge the remaining ash, id. at 118-19, met the ship in

Singapore where it was to be reclassified inasmuch as its holds

no longer contained any ash, and communicated with Reilly from

Singapore, id. at 126. Overall, the evidence of the falsity of

Dowd's statement that he had "no idea" what happened to the ash

is more than sufficient to sustain his conviction under 18 U.S.C.

§ 1623.

H. Did the prosecutor improperly offer his opinion and

unsworn testimony during his closing argument?

Dowd and Reilly argue that the prosecutor prejudiced

them in his closing argument by referring to their testimony as

"lies," and by misstating the record in several respects. See D.

br. at 34-37; R. br. at 60-69. Dowd and Reilly unsuccessfully

58

raised their arguments regarding the impropriety of the

prosecutor's closing argument in motions for new trials. See D.

app. at 42-43. Like the district court, we reject their

arguments.

While it is true that the prosecutor referred to Dowd's

and Reilly's testimony as "lies," in making this characterization

he was not guilty of misconduct because he merely was making a

"fair comment on the evidence adduced at trial." United States

v. Pungitore, 910 F.2d 1084, 1127 (3d Cir. 1990), cert. denied,

111 S.Ct. 2009 (1991). Thus, although such a comment may in some

instances be an inflammatory expression of a prosecutor's

personal belief and require reversal, here it does not.

Furthermore, the prosecutor's characterization of Dowd's and

Reilly's testimony as lies referred to their statements at the

grand jury and contempt proceedings, and when a prosecutor

contends that a defendant in a false declaration case lied in the

underlying proceedings, he merely is arguing that the evidence

supports a verdict of guilty.

Dowd and Reilly also claim that the prosecutor made

other improper statements during his closing argument. According

to Dowd, the prosecutor's "most devastating" misstatement of the

record was his assertion that Dowd played a role in ordering

Fuentes to destroy the radiotelegrams. D. br. at 35. However,

Dowd did not object to this statement at trial and therefore "we

may review only for plain error." Pungitore, 910 F.2d at 1125-

26. As we discussed above, there was substantial evidence

indicating that Dowd knew about the dumping of the ash into the

59

ocean, and Fuentes testified that Dowd instructed him to falsify

the ship's logs. Although Fuentes testified that Reilly ordered

him to destroy the radiotelegrams, see D. app. at 327, 348, he

also testified that "[t]he owners didn't want them on board. . .

. They didn't want them on board," see U.S. app. at 97 (emphasis

added). Moreover, the evidence indicates that Dowd and Reilly

were in contact while Dowd was in Singapore. Thus, there was a

basis for the inference that Dowd participated in the decision to

have Fuentes destroy the radiotelegrams. In any event, even if

the statement should not have been made, we see no basis to

conclude that it gives rise to a supportable claim of "plain

error" in light of the record as a whole. We also point out that

the district court's instruction to the jury to rely on their

recollection of the facts and not counsel's statements and

arguments cured any possible prejudice resulting from the

comment. In fact, the prosecutor said the same thing to the jury

in his summation. Accordingly, we conclude that we should not

reverse by reason of the prosecutor's statement that Dowd and

Reilly ordered Fuentes to destroy the radiotelegrams.

Dowd and Reilly argue that the prosecutor misstated the

evidence by suggesting that they personally had destroyed

documents. Specifically, they challenge the prosecutor's

contention that they destroyed their copies of radiotelegrams

associated with the Khian Sea. See D. app. at 475. However,

this contention was supported by evidence, including a letter

from Coastal Carriers to the grand jury stating that "no radio

logs or other logs" were in Coastal Carriers's possession, see R.

60

app. at 1264, and Fuente's testimony regarding the instructions

he received to falsify the ship's log and destroy the

radiotelegrams. Thus, the prosecutor merely was drawing an

inference from certain pieces of evidence in the record.

Reilly also argues that the prosecutor "testified"

based on non-record evidence by using the pronoun "we" when

discussing Reilly's allegedly false testimony, by referring to

Amalgamated and MASCO as "shells" for Reilly and Dowd, and by

stating that the defendants had not called any witnesses from the

radio transmitting companies because the radiotelegrams were

"accurate." R. br. at 63-65. Reilly cites United States v.

DiLoreto, 888 F.2d 996, 999 (3d Cir. 1989), for the proposition

that these remarks "require reversal per se." In DiLoreto, we

held that "a prosecutor's remarks regarding the defendant's guilt

or a witness' credibility, if based on information not adduced at

trial, require reversal per se." Id. at 999. We conclude that

DiLoreto does not require reversal per se in this case.

The prosecutor used the pronoun "we" when arguing that

the questions posed to the defendants were clear. He stated,

[y]ou know what those words meant because

they are words that are used in ordinary

conversation. . . . Everybody knew what we

were talking about. Everybody knew what they

were talking about in that hearing in

Philadelphia. They were talking about the

ash on board the Khian Sea.

See R. app. at 1105. The prosecutor who made this statement also

presented the matter to the grand jury in Delaware when Reilly

and Dowd testified. Prior to trial, they sought to disqualify

the prosecutor, based in part on the contention that he would be

61

an unsworn witness at trial. The district court, however,

refused to disqualify him, stating that it assumed the prosecutor

would be "very careful in the presentation of the Government's

case." United States v. Reilly, Crim. Nos. 92-53-JJF, 93-8-JJF,

93-10-JJF, Memorandum Opinion at 9 (D. Del. May 7, 1993) (see R.

app. at 109). Although the prosecutor's choice of words was

unfortunate, the prosecutor's isolated use of the pronoun "we"

did not constitute testimony based on evidence not adduced at

trial. He did not say "we" or "I" knew what the defendant was

talking about. He said "[e]verybody" knew what "we" were talking

about. Consequently, the remark was merely an inference from

evidence in the record, and thus does not require reversal per

se. See DiLoreto, 888 F.2d at 999; Government of Virgin Islands

v. Joseph, 770 F.2d 343, 349 (3d Cir. 1985). Furthermore,

reviewing the matter to determine if there was prejudice from the

prosecutor's use of words, we conclude that "[u]nder the

circumstances and in light of the strong evidence of guilt . . .

, we believe . . . [the court's] instructions adequately cured

any prejudice that may have arisen." Joseph, id. at 349.

Reilly also faults the prosecutor for referring to

Amalgamated and MASCO as "shells" used by Reilly and Dowd to

conceal their involvement with the dumping operation of the Khian

Sea, see R. app. at 1088, 1115-16. However, the record also

supports this statement. As noted above, there is significant

evidence indicating that Reilly sent radiotelegrams from

Annapolis signed "AMALGAMATED" or "MASCO". Moreover, Cheryl

Haye, a secretary for MASCO, testified that MASCO set up and

62

managed businesses, that she did not know of any MASCO office in

Annapolis, id. at 525, that MASCO and Amalgamated shared the same

post office box in the Bahamas, id. at 532, that there was no

physical separation between Lily and MASCO inside the MASCO

offices, id. at 527, that she signed a letter as president of

Lily although she was actually a secretary for MASCO, id. at 534,

and that she regularly would sign letters as president of

corporations created by MASCO although she knew nothing about the

companies, id. at 538-39. Clare Dobbins, a secretary in the

Coastal Carriers office in Annapolis, testified that there was

Lily letterhead in the Coastal Carriers office, see U.S. app. at

21, and that the check books for Coastal Carriers, Amalgamated,

and the Coastal Barge Corporation were kept in the Coastal

Carriers office. Id. at 22. Thus, we agree with the

government's contention that "[i]t was proper to argue, based on

this evidence, that the jury . . . should disregard the form of

these different corporations and look instead to the substance of

who was doing what." See U.S. br. at 70.

Finally, Reilly argues that the prosecutor stated that

the defendants had not called any witnesses from the radio

transmitting companies because the radiotelegrams were

"accurate," and that this statement requires reversal of Reilly's

conviction because it was based on evidence outside the record.

After the jury was excused, the defendants objected to this

statement. See U.S. app. at 216-19. At this point, the district

court suggested that the parties stipulate that the cable

companies did not have the required information to verify the

63

accuracy of the radiotelegrams. Id. at 219-21. The parties

agreed on the stipulation, and the district court read it to the

jury, id. at 221, 224-25. The defendants did not raise any

further objection or seek further clarification. Id. at 225.

Therefore, "[i]nasmuch as appellants did not object to the

curative instruction or request additional instructions, they

apparently were satisfied with the district court's response and

cannot now complain that [the prosecutor's] comments gave rise to

reversible error." Pungitore, 910 F.2d at 1128.

I. Is the district court's refusal to grant Dowd a

downward departure under the sentencing guidelines

reviewable by this court, and if so, did the

district court err in refusing to grant the

departure?

Dowd sought a downward departure from the sentence

range calculated under the Sentencing Guidelines. Pursuant to 18

U.S.C. § 3553(b), Dowd argued that the court should depart

downward because in his case, "there exist[] . . . aggravating or

mitigating circumstances of a kind, or to a degree, not

adequately taken into consideration by the Sentencing

Commission." Dowd argues that his false declarations prosecution

was "atypical" because "he had nothing whatsoever to do with the

underlying ocean dumping offense," and his "actual false

statement itself is hopelessly technical in nature, arising as it

does from the open-ended, ambiguous question 'You have no idea?'"

See D. br. at 40. Dowd also argues that a downward departure was

warranted because his conviction "may well result in the

suspension and debarment from all future government contracts not

64

only of Dowd personally but also of the various businesses owned

by his entire family." Id. at 41.

In United States v. Denardi, 892 F.2d 269, 272 (3d Cir.

1989), we held that "we have no jurisdiction to review a district

court's discretionary decision not to depart from the

Guidelines." United States v. Bierley, 922 F.2d 1061, 1066 (3d

Cir. 1990) (citing United States v. Denardi, 892 F.2d at 272).

"However, we recognized in Denardi that when the district court's

decision not to depart is predicated on the legally erroneous

impression that it did not have the authority to do so, we may

review that decision." Bierley, 922 F.2d at 1066. We believe

that the district court denied Dowd a downward departure because

it concluded that the Guidelines did not authorize it to depart.

See D. app. at 505-06. Thus, we have jurisdiction to review the

district court's decision, and based on our review, we conclude

that its decision was correct.

Even if it is true that Dowd "had nothing whatsoever to

do with the underlying ocean dumping offense," this fact alone

does not establish that Dowd's false statement "differs from the

norm." See U.S. Sentencing Guidelines, Ch. 1, Pt. A, note 4(b),

at 5-6 (1993). As the government points out, Application Note 3

to Guidelines § 2J1.3 specifically addresses the situation where

the defendant is convicted both for perjury and the "offense with

respect to which he committed perjury," indicating that the

Commission did not consider a conviction for perjury absent a

conviction for an underlying offense to be "atypical." Further,

we do not believe that his false statement was particularly

65

"technical in nature," or that it arose from an ambiguous

question.

Finally, the district court was correct in concluding

that the conviction's potentially harmful financial consequences

for Dowd, his family, and their businesses did not justify a

downward departure from the Guidelines. The Sentencing

Commission's policy statement regarding the propriety of granting

a downward departure based on a defendant's "vocational skills"

is controlling, Guidelines § 5H1.2,0 and this policy statement

indicates that a sentencing court only should grant a downward

departure on this basis in "extraordinary circumstances." See

United States v. Sharapan, 13 F.3d 781, 784 (3d Cir. 1994). Our

application of this policy statement in Sharapan led us to

conclude that the district court erred in granting a downward

departure based on its determination that the defendant's

incarceration would cause his business to fail. Id. at 785-86.

We based our conclusion on our determination that there was

nothing extraordinary in the fact that the incarceration of a

company's principal might "cause harm to the business and its

employees," and that, even assuming that the business would fail

as a result of the defendant's incarceration, there was "no basis

for concluding that this failure would cause any extraordinary

harm to society as a whole." Id. at 785.

0

In Williams v. United States, 112 S.Ct. 1112, 1119 (1992), the

Court held that where "a policy statement prohibits a district

court from taking a specified action, the statement is an

authoritative guide to the meaning of the applicable guideline."

See also United States v. Gaskill, 991 F.2d 82, 85 (3d Cir.

1993).

66

Dowd alleges that his sentence will harm both his

business and that of his family members. Nevertheless, the

Sentencing Commission's policy statement regarding downward

departures based on a defendant's vocational skills is

controlling because the "principle underlying . . . [this policy

statement is] that a sentencing judge may grant a downward

departure based on a defendant's ability to make a work-related

contribution to society only in extraordinary circumstances,"

id., and it follows from this principle that a court may grant a

downward departure based on a defendant's relatives' abilities to

make work-related contributions to society only in extraordinary

circumstances. It is unfortunate that Dowd's family may suffer

both personally and financially due to his conviction. However,

we see nothing extraordinary in the fact that Dowd's conviction

may harm not only his business interests but also those of his

family members, and we are not convinced that the effects of

Dowd's sentence on these businesses "are of sufficient economic

importance to society to justify a departure." Id.0

III. Conclusion

The judgments of conviction and sentence will be

affirmed.

0

The Sentencing Commission's policy statement regarding the

relevance of family ties and responsibilities to the granting of

a downward departure also supports our decision. It provides

that such factors are relevant only in "extraordinary"

circumstances, Guidelines § 5H1.6, as "'[d]isruptions of the

defendant's life, and the concomitant difficulties for those who

depend on the defendant, are inherent in the punishment of

incarceration.'" United States v. Gaskill, 991 F.2d 82, 84-85

(3d Cir. 1993) (quoting United States v. Johnson, 964 F.2d 124,

128 (2d Cir. 1992)).

67

United States v. Reilly -- Nos. 93-7671, 93-7673, 93-7684,

93-7685, 93-7686

and

United States v. Dowd -- No. 93-7694

GARTH, J., dissenting

I am compelled to dissent from the majority opinion as

(1) the record convinces me that Reilly is entitled to a new

68

trial on all charges, and (2) the record also requires that the

false declaration charge against Dowd must be dismissed. I am

also disturbed with the evidentiary analysis by which the

majority sustains Reilly's conviction. That analysis, which in

my opinion is seriously flawed, not only affects this appeal,

but, because it will become the law of this circuit, it

necessarily infects all future trial and appellate proceedings on

which it may impact. It is for these reasons -- more fully

expressed below -- that I find it necessary to part company with

my colleagues in the majority.

I.

I am in accord with the majority that: (1) there was

no ambiguity in the predicate questions underlying Reilly's

convictions for knowingly making false declarations in violation

of 18 U.S.C. § 1623(a); (2) Reilly's false declaration

indictments adequately alleged the falsity of his purportedly

perjurious responses; and that (3) the disputed radiotelegrams

admitted into evidence against Reilly were properly authenticated

through circumstantial evidence.

I am not in accord, however, with the majority's

analysis of the hearsay issues raised by Reilly. For the reasons

which I will discuss in the following section, I disagree with

the majority's holding that 13 of the disputed radiotelegrams

transmitted to the Khian Sea were admissible as non-hearsay

admissions of Reilly. In my opinion, the district court erred in

admitting those radiotelegrams, and that error necessarily

69

undermined the entire trial process, thereby tainting Reilly's

jury conviction on the ocean dumping violation (33 U.S.C.

§1411(a)), as well as his false declaration convictions.

Accordingly, rather than affirm Reilly's conviction, as the

majority holds, I would reverse Reilly's conviction and remand

his case to the district court for a new trial on all charges.

I also must disagree with the majority's affirmance of

Dowd's conviction for knowingly making a false declaration before

the federal grand jury in violation of 18 U.S.C. § 1623(a).

Unlike the majority, I am not convinced that the predicate

question posed to Dowd before the grand jury was unambiguous.

Based on the inherent ambiguity of the question to which Dowd was

found to have responded falsely, I would reverse his conviction,

and I would remand to the district court for dismissal of the

§1623(a) charge against Dowd. My disposition would obviate the

need to address the sentencing issues raised by Dowd.

Inasmuch as I would reverse Reilly's convictions on the

hearsay issue, and Dowd's conviction because of the ambiguity of

the predicate question, I would not reach the improper

prosecutorial comment issues raised by Reilly and Dowd. I hasten

to add, however, that I would otherwise be in accord with the

majority's determination that neither Reilly nor Dowd was

prejudiced by the prosecutor's closing arguments to the jury, and

that our holding in United States v. DiLoreto, 888 F.2d 996, 999

(3d Cir. 1989), does not require reversal per se in this case.

II.

70

I agree that the Government could establish by

circumstantial evidence the authenticity of most, if not all, of

the disputed radiotelegrams transmitted to and from the Khian Sea

during its nearly two-year odyssey. Fed. R. Evid. 901(b)(4)

(authentication can be established by "[a]ppearance, contents,

substance, internal patterns, or other distinctive

characteristics, taken in conjunction with other circumstances");

see also United States v. McGlory, 968 F.2d 309, 329 (3d Cir.

1992) (holding that sufficient evidence existed for the jury to

find that notes were authored by the defendant, despite the

government's inability to establish fully the defendant's

authorship by expert opinion), cert. denied, 113 S.Ct. 1388

(1993); United States v. Addonizio, 451 F.2d 49, 71 (3d Cir.

1971) (noting that, for authentication purposes, "the connection

between a message (either oral or written) and its source may be

established by circumstantial evidence"), cert. denied, 405 U.S.

936 (1972).

A thorough review of the record persuades me that the

Government satisfied its burden of establishing a prima facie

case from which the jury could have inferred that the disputed

radiotelegrams were what they purported to be, i.e., cable

communications between the Khian Sea and Coastal Carriers and

other onshore entities and individuals, including Reilly. As we

have often said, "'the burden of proof for authentication is

slight. All that is required is a foundation from which the

fact-finder could legitimately infer that the evidence is what

the proponent claims it to be.'" Link v. Mercedes-Benz of N. Am.

71

Inc., 788 F.2d 918, 927 (3d Cir. 1986) (quoting McQueeney v.

Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985))

(additional citations omitted).

Hence, I am in accord with the majority's holding that

the disputed radiotelegrams were properly authenticated pursuant

to Federal Rule of Evidence 901, by circumstantial evidence. See

United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993) ("The

scope of appellate review upon this issue is confined to

determining whether the admission constituted abuse of judicial

discretion in determining that a prima facie case had been made

out") (internal quotes and citations omitted), cert. denied, 114

S. Ct. 1660 (1994).

A.

A showing of authenticity, however, "is not on a par

with more technical evidentiary rules, such as hearsay

exceptions, governing admissibility." Link, 788 F.2d at 928

(quoting United States v. Goichman, 547 F.2d 778, 784 (3d Cir.

1976)); accord McGlory, 968 F.2d at 328-329. That is because,

once a prima facie showing of authenticity is made, it is the

jury, and not the court, which ultimately determines the

authenticity of the evidence. Id.

In contrast, the determination of whether hearsay is

admissible at all is a matter of law for the court to decide, not

a condition of fact subject to jury resolution. The majority's

treatment of the hearsay issues raised by Reilly, however,

effectively and impermissibly equates our evidentiary rules

72

governing admissibility with the slight showing required for

authentication.

Contrary to the majority view, I am convinced that 13

of the incoming radiotelegrams, while properly authenticated,

should not have been admitted into evidence because they contain

inadmissible hearsay. See McGlory, 968 F.2d at 331

("Notwithstanding authentication, the [documents] would still

have to be excluded if the assertions in them are hearsay that

does not fall under any exception to Federal Rule of Evidence 802

precluding the admissibility of hearsay.").

B.

For purposes of my analysis, I am willing to assume

that the 18 outgoing radiotelegrams (i.e., those cable

communications from the Khian Sea to onshore entities and

individuals) were properly admitted by the district court. I

therefore accept the majority's position that the messages

contained in those outgoing radiotelegrams were admissible

pursuant to Federal Rule of Evidence 801(d)(1) as non-hearsay

prior statements of prosecution witness Captain Fuentes, and that

the outgoing radiotelegrams themselves were admissible under the

Rule 803(6) hearsay exception for records of regularly conducted

activity. See Majority Typescript at 40-41. I also will allow

that the admission of the four incoming radiotelegrams not linked

to Reilly was harmless. See id. at 42.

We thus are left with 13 incoming radiotelegrams: the

12 purportedly sent to the Khian Sea by Reilly in Annapolis; and

73

the one purportedly sent by Kimon Berbillis, the shipping agent

for Romo in Greece. The transmission of each of these incoming

radiotelegrams involved the following three-step process: (1) a

coastal station operator would receive a message from an onshore

sender; (2) that operator would then note the date and time of

the transmission and where the communication or message

originated or was "Handed In"; and (3) the coastal station

operator would then transmit that message in Morse Code to the

Khian Sea, where the radioman onboard the Khian Sea would convert

the incoming message from Morse Code into a typed message.

Reilly argues that the incoming radiotelegrams

contained three levels of hearsay: (1) the communication between

the onshore sender (the hearsay declarant) and the coastal

station operator (the witness auditor); (2) the communication

between the coastal station operator (the hearsay declarant) and

the radio operator on the Khian Sea (the witness auditor); and

(3) the radio operator's written recordation of the message. The

majority concedes "that the incoming radiotelegrams to the Khian

Sea were the product of [these] three out-of-court 'statements.'"

Majority Typescript at 29. It concludes, however, that those

three out-of-court "statements" are not inadmissible hearsay. Id.

at 30. In reaching that conclusion, I suggest that the majority

has put the rabbit in the hat.

C.

The majority's hearsay analysis is fundamentally flawed

because it is premised on the assumption that the 12

74

radiotelegrams allegedly sent by Reilly originated in Annapolis,

where Reilly lived and worked. See Majority Typescript at 7, 17,

19, 20, 21, 22, 24, 26, 27, 31, 32, 33, 34, 35, 40. Yet, the

Government never adduced any evidence, apart from the disputed

documents themselves, that the messages contained in the

radiotelegrams had actually originated in Annapolis. Without

such evidence, these radiotelegrams and all statements contained

therein cannot be linked to Reilly.

There was no testimony from any of the intermediate

coastal stations that the radiotelegrams were, in fact, "Handed

In at ANNAPOLIS," as asserted by the coastal station operators in

the radiotelegrams. No coastal station operator, employee, or

representative ever testified that the originating stations, and

the dates asserted in the radiotelegrams were, in fact, the

originating stations from which, and the dates on which, the

messages from the unidentified onshore declarants were received

and/or transmitted by the coastal stations. Moreover, even

though the district court acknowledged that "there may be

significant transmission errors," R. app. 1297-98, there was no

evidence presented that the coastal stations accurately

transcribed the messages they received from the unidentified

onshore declarants, or that the coastal stations accurately

transmitted those messages, in Morse Code, to the Khian Sea.

Hence, the "statements" contained in the radiotelegrams

can only be viewed as "[h]earsay included within hearsay." See

Fed. R. Evid. 805. We have the hearsay of unidentified onshore

declarants transmitted by unidentified coastal operators, who

75

also transmitted additional hearsay specifying the point of

origin and the date to the Khian Sea radioman, who ultimately

translated all of that hearsay from Morse Code into a written

recordation. As "[h]earsay included within hearsay," the

incoming radiotelegrams thus are subject to Rule 805, which

requires for admissibility that "each part of the combined

statements [must] conform[] with an exception to the hearsay rule

provided in these rules." The majority's "layered approach to

the hearsay analysis," see Majority Typescript at 33 n.14, does

not satisfy that criterion for admissibility of the incoming

radiotelegrams.

Significantly, the majority fully acknowledges that the

point of origin and destination of each radiotelegram, and the

date on which each radiotelegram was sent, "were introduced to

prove their truth, i.e., to prove that the radiotelegrams were

sent from the point of origin to the destination on the

designated date." Majority Typescript at 32. It further

recognizes that the Government did not produce a coastal station

operator as a witness, thereby complicating its hearsay analysis.

Id. at 32 n.14. The majority then attempts to finesse the

absence of any testimony from the coastal stations which arguably

could have bridged the gap in the hearsay communications between

the unidentified onshore declarants and the radioman onboard the

Khian Sea. It declares, in effect, that, while it would have

been nice for the district court to have heard from a coastal

station operator at trial, that testimony is not really necessary

for our purposes because we can assume, through other evidence,

76

that the radiotelegrams were "handed in at Annapolis," and

therefore had to come from Reilly. I disagree.

The majority is remitted to "assembling" evidence from

Captain Fuentes and Coastal Carriers' secretary, Clare Dobbins,

to substantiate its theory that Reilly authored and sent the

radiotelegrams from Annapolis to the Khian Sea, and that Reilly

authorized Berbillis to do the same. The difficulty with this

analysis is that it necessarily must rely on the dates and places

of origin of each radiotelegram. However, no coastal station

operator ever testified to those essential components of the

radiotelegrams, and thus the evidence which the majority seeks to

weave into a hearsay exception fails, because it lacks the

critical links that only the coastal station operators could have

supplied. Hence, none of the trial evidence, set forth in the

majority's opinion, established that these 12 incoming

radiotelegrams actually originated in Annapolis, let alone that

Reilly sent them. See Majority Typescript at 33 nn.14 and 15, 34

n.16, 37 n.17, and 38 n.18. Nor did it establish, as I point out

later, that Reilly ever authorized Berbillis to send the 13th

incoming radiotelegram.

Reilly testified at trial that anyone who knew the

telex billing number for his Annapolis-based company, Coastal

Carrier, could call a coastal station from anywhere in the world

and send a shore-to-ship transmission, which would be identified

as having originated in Annapolis. That testimony was

uncontroverted, and there was no evidence presented by the

Government, apart from the radiotelegrams themselves, that it was

77

Reilly, and not someone else who knew Coastal Carriers' billing

number, who sent the 12 incoming radiotelegrams which the

Government attributed to Reilly.

Because, as I also point out later, the Government

failed to lay the proper foundation for admission of the

radiotelegrams pursuant to the business records exception of Rule

803(6),0 and because the radiotelegrams themselves do not meet

the requirements of any other exception to the hearsay rule,

there is no admissible evidence establishing that the 12

radiotelegrams were sent from Annapolis. See Fed. R. Evid. 805.

Consequently, the "statements" contained in those radiotelegrams

-- which the majority links to Reilly through inadmissible

hearsay (e.g., "Handed In at ANNAPOLIS") -- cannot be deemed

admissible as non-hearsay admissions of Reilly.

Statements attributed to Reilly would, by themselves,

of course, be admissible under Rule 801(d)(2)(A), which provides

0

Rule 803(6) provides:

A memorandum, report, record, or data compilation,

in any form, of acts, events, conditions,

opinions, or diagnoses, made at or near the time

by, or from information transmitted by, a person

with knowledge, if kept in the course of a

regularly conducted business activity, and if it

was the regular practice of that business activity

to make the memorandum, report, record, or data

compilation, all as shown by the testimony of the

custodian or other qualified witness, unless the

source of information or the method of

circumstances of preparation indicate lack of

trustworthiness. The term "business" as used in

this paragraph includes business, institution,

association, profession, occupation, and calling

of every kind, whether or not conducted for

profit.

78

that a statement is not hearsay if it is offered against a party,

and is the party's own statement in either an individual or

representative capacity. Without the requisite foundational

testimony from a coastal station representative, however, there

simply is no admissible evidence establishing Reilly as the

onshore declarant who transmitted the radiotelegram instructions

to the Khian Sea. That being so, any "statements" allegedly made

in the radiotelegrams by Reilly, either directly or indirectly,

were not admissible as non-hearsay admissions of a party-

opponent. See Fed. R. Evid. 805; Carden v. Westinghouse Elec.

Corp., 850 F.2d 996, 1003 (3d Cir. 1988) ("That part of [the

hearsay included within hearsay] which contains a reiteration of

what someone told him is not admissible as an admission by party-

opponent since the author of the statement is unknown.")

(citation and internal quotation omitted).

By the same token, the message contained in the

radiotelegram purportedly sent to the Khian Sea by Berbillis from

Greece0 is inadmissible hearsay because no coastal station

operator ever established Berbillis as the onshore declarant. Id.

Nor can that out-of-court statement be deemed to be an admission

authorized by Reilly under Rule 801(d)(2)(C). That Rule of

0

The radiotelegram purportedly sent on October 7, 1988 from

Kimon Berbillis in Greece to the Khian Sea, contained the

following message:

ATT A. FUENTES PLEASE DELAY YOUR ETA UNTIL NOON OCTOBER

14 STOP TRY ARRIVE WITH 500 TONS IN ONEHOLD STOP REILLY

WILL CABLE YOU INFO YOU REQUESTED STOP BEST REGARDS

KIMON

R.app. 1214.

79

Evidence excludes from the definition of hearsay a statement

introduced against a party which that party authorized another

person to make concerning the subject.

Independent proof of the existence of an agency

relationship and its scope would be required to show that Reilly

authorized Berbillis to send any radiotelegram to the Khian Sea.

See United States v. Pelullo, 964 F.2d 193, 200 n.4 (3d Cir.

1992). Contrary to the majority's position, there is no such

proof to establish that Berbillis, an employee of Romo and not of

Coastal Carriers, "was acting on behalf of Reilly or at his

behest." See Majority Typescript at 23. The majority opinion

nevertheless appears to assume that Reilly had authorized

Berbillis to make the statement which appeared in the

radiotelegram Berbillis allegedly sent to Captain Fuentes.

However, apart from Fuentes' testimony that "Reilly told him that

. . . Kimon Berbillis would give him [Fuentes] instructions," see

Majority Typescript at 36, the majority points to no evidence

establishing that Berbillis was authorized by Reilly to send any

radiotelegram to Captain Fuentes pertaining to the ash. Nor does

the majority refer us to any evidence whatsoever that links

Reilly to Romo.

For the same reason that no agency relationship or

authorization appears in the proofs, the "statements" of the

coastal operators (i.e., time, date, and place of origin of the

radiotelegrams) and the "statements" of the Khian Sea radioman

(i.e., the recordation of the incoming hearsay) could not be

admitted as non-hearsay authorized admissions of Reilly pursuant

80

to Rule 801(d)(2)(C), although the majority holds otherwise. See

id. at 38.

In Carden, we cautioned district courts against

admitting declarations of unidentified persons into evidence. 850

F.2d at 1003. Here, the Government failed to establish the

identity of two groups of out-of-court declarants: (1) the

unidentified onshore declarants (alleged here but not proved to

be Reilly in Annapolis and Berbillis in Greece) who transmitted

messages to the coastal station operators; and (2) the

unidentified coastal station operators who in turn transmitted

those original messages in Morse Code and then added further

hearsay allegedly establishing the place of origin and the date

of the original message.

We also reiterated in Carden another well-established

rule of law: that the proponent of evidence bears a heavy burden

to satisfy trustworthiness requirements. Id. Significantly, the

district court in the instant case recognized the "risk that the

[onshore] sender may have been someone else other than Reilly."

R.supp.app. 1297. Yet, the Government never admitted any

evidence, except for the inadmissible documents, that Reilly

authored the statements in the radiotelegrams. Notwithstanding

that omission, the district court admitted the radiotelegrams

anyway, without offering any explanation or rationale for its

decision. The majority compounds that error with its tortured

hearsay analysis.

D.

81

The majority also fails to support its position that

the statements attributed to Reilly would be admissible as non-

hearsay, on the theory that those statements were not offered by

the Government to prove that their substance was either true or

false. The radiotelegrams were offered more than merely "'to

prove the fact that the certain instructions had been given,' . .

. and as circumstantial evidence of Reilly's state of mind,

namely his knowledge of the ash dumping operation," as the

majority holds. See Majority Typescript at 31. Regardless of

the distinctions sought to be drawn by the majority between

instructions and statements of fact, the "instructions" here,

even if relevant to the hearsay analysis, have extraordinary

hearsay implications. Compare Crawford v. Garnier, 719 F.2d

1317, 1323 (7th Cir. 1983) (affirming district court's admission

into evidence of nonparty's out-of-court instructions "which

carried no hearsay implications").

The "instructions" attributed to Reilly -- e.g.,

"ARRIVE COLOMBO . . . WITH ONLY 500 TONS BALLAST" and "DISPOSE

500 BALLAST PRIOR ARRIVAL SINGAPORE" -- are vastly different from

any of the instructions or orders in the cases cited by the

majority. See Majority Typescript at 31 (citing Anderson v.

United States, 417 U.S. 211, 220 n.8; Crawford, 719 F.2d at 1323;

United States v. Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert.

denied, 459 U.S. 972 (1982); United States v. Keane, 522 F.2d

534, 558 (7th Cir. 1975), cert. denied, 424 U.S. 976 (1976)).

None of the instructions in the Supreme Court case of Anderson,

or in the courts of appeals decisions in Crawford, Gibson, and

82

Keane, carried hearsay implications, and none was admitted in the

egregious context that these "instructions," if indeed one can

call them that, were admitted in the instant case.

Of even greater import, however, is the fact that the

messages, even if called instructions, were nevertheless made

known to the jury and could not have helped but influence the

jury because of their contents. The district court never

instructed the jury on how this evidence was to be considered;

hence, the jury was never told that it could consider the

messages attributed to Reilly only for the limited purpose of

establishing that certain instructions had been given and as

circumstantial evidence of Reilly's state of mind, and not as

direct proof of Reilly's guilt.

We have many times expressed our disapproval of any

admission of statements "which are not technically admitted for

the truth of the matter asserted, whenever the matter asserted,

without regard to its truth value, implies that the defendant is

guilty of the crime charged." McGlory, 968 F.2d at 332. There

is little doubt in my mind that the Government offered the

incoming radiotelegrams to Reilly to prove, by their contents,

that Reilly not only had ordered Captain Fuentes to dump the ash

in the ocean, but that Reilly also lied about the ash dumping

operation when he responded to questions at the contempt

proceeding and again before the federal grand jury. I do not

believe that our cases permit the admission of such

"circumstantial evidence" of guilt. See, e.g., United States v.

Reynolds, 715 F.2d 99, 103-04 (3d Cir. 1983) (holding statement

83

inadmissible because it was offered to "prove the truth of the

assumed fact of defendant's guilt implied by its content.").

The evil in the majority's opinion is that it distorts

established evidentiary jurisprudence in order to embrace the

Government's actions, actions which are not authorized by any

Rule of Evidence. To accept the majority's ruling as the law of

this court will affect not only Reilly; it will, in effect,

dismantle the hearsay provisions of the Federal Rules of

Evidence. Despite the attempts by the majority to cabin the

district court's ruling within the doctrines of Anderson and

McGlory, the majority's opinion eviscerates the very safeguards

that the hearsay rule and its limited exceptions were designed to

protect.

The messages attributed to Reilly should not, in any

event, be considered in the hearsay calculus. That is because

their admissibility is not independent of the radiotelegrams

themselves. Whatever the messages contained in the

radiotelegrams, the hearsay elements of the radiotelegrams which

involved the location and date of the radiotelegrams were never

satisfied by competent proof. The failure of the Government to

establish through the coastal station senders' testimony that

Reilly was the sender from Annapolis on the particular date

created the threshold hearsay problems, and the radiotelegrams

"linked" to Reilly only because of the location and date shown

could not, on this record, satisfy any exception to the hearsay

rule. See Fed. R. Evid. 805. The majority's attempt to overcome

this problem, in my view, never succeeds.

84

The majority, without testimony that Reilly sent the

radiotelegrams from Annapolis, seeks to gloss over this omission

by what it calls "circumstantial evidence." But what evidence is

disclosed in the record? None, because the coastal station

operator who could have testified as to who sent the dispatchs,

and from where and when they were sent, never testified at trial.

In other words, the majority would relieve the

Government from the requirements of Rule 805, and of the

foundational requirements of Rule 803(6), while at the same time

it disregards our own jurisprudence. I could not disagree more.

E.

The Government argues that "[e]ven if the

radiotelegrams were hearsay, they were properly admitted under

the exception for records of regularly conducted activity."

U.S.br. at 33. Despite this argument, the majority has now

acknowledged that, because the coastal station operators had not

testified to lay the foundation for the introduction into

evidence of their "statements" pursuant to the business records

exception of the hearsay rule, "the radiotelegrams were not

introduced as business records of the coastal sending station."

Majority Typescript at 33 n.14. The majority, apparently

concerned about the admissibility of the radiotelegrams allegedly

sent by Reilly and Berbillis, nonetheless finds support for their

admission in the business records exception to the hearsay rule,

Rule 803(6). See Majority Typescript at 38-40.

The requirements of Rule 803(6) can be shorthanded as

(1) knowledge, (2) contemporaneous recordation, (3) in the

85

regular course of business, (4) which requires such records

regularly to be kept. There can be no question that the four

foundational requirements of Rule 803(6), identified and

discussed by the majority ante at (Majority Typescript at

39), were not satisfied in the instant case.

Notwithstanding the testimony of the Khian Sea radio

operator, Carcamo, about his documenting of the incoming

radiotelegrams, those incoming radiotelegrams cannot satisfy the

requirements of Rule 803(6) because no "qualified witness" for

the coastal stations ever attested at trial that

(1) the declarants in the records had knowledge to make

accurate statements; (2) that the declarant[s] recorded

statements contemporaneously with the actions which

were the subject of the reports; (3) that the

declarant[s] made the record in the regular course of

the business activity; and (4) that such records were

regularly kept by the business.

Console, 13 F.3d at 657 (citations and internal quotations

omitted). Without this crucial testimony from the coastal

station operators, who were the intermediaries in the

transmissions between the onshore declarants and Carcamo, the

incoming radiotelegrams could not be admitted in evidence.

I therefore suggest that the majority's reliance on

Carcamo's testimony, see Majority Transcript at 40-41, is clearly

misplaced. As I point out below, Carcamo was in no position to

testify as to who the declarants were, the origin of the

radiotelegrams, or the date they were transmitted by the onshore

declarants. The fact that Carcamo may have kept files of these

86

messages cannot supply the foundational requirements that only

the coastal station operators could have furnished.

Rule 803(6) requires each person transmitting recorded

information to "verify the information provided, or [else] the

information transmitted [must meet] the requirements of another

hearsay exception, Fed.R.Evid. 805." Console, 13 F.3d at 657.

No coastal station operator ever verified the "statements"

contained in the radiotelegrams, and those "statements"

ultimately recorded by Carcamo onboard the Khian Sea were

inadmissible because they do not satisfy the requirements of any

other exception to the hearsay rule. See Fed. R. Evid. 805.

The principal precondition to admission of documents as

business records is that the records have sufficient indicia of

trustworthiness to be considered reliable. Fed. R. Evid. 803(6)

(authorizing admission of records of regularly conducted

activities "unless the source of information or the method or

circumstances of preparation indicate lack of trustworthiness.")

(emphasis added). Here, the record reveals that the

precondition of trustworthiness was not satisfied. The only

evidence even remotely bearing on this issue was Carcamo's

testimony that he never had any complaints about the accuracy of

his translation of Morse Code. Carcamo did not, and could not,

testify about the accuracy of the coastal station operators'

translation of the original message into Morse Code and their

transmissions of those coded messages to the Khian Sea, let alone

concerning "the source of information," as required by Rule

803(6).

87

Indeed, the district court explicitly recognized that

"there may be significant transmission errors in particular

documents," R. supp. app. 1297-28, and the Government never

presented any evidence from the coastal station operators to

quell that concern. For this reason alone, the incoming

radiotelegrams themselves could not be admitted under the

business records exception to the hearsay rule. See United

States v. Nixon, 779 F.2d 126, 134 (2d Cir. 1985) (holding that

telex containing many inaccuracies failed to satisfy requirements

of Rule 803(6)).

F.

For all of the reasons which I have discussed -- i.e.,

no proof that the radiotelegrams were sent by or authorized by

Reilly, and no foundation for their admission under any exception

to the hearsay rule, including the business records exception --I

would hold that the 12 incoming radiotelegrams purportedly sent

to the Khian Sea by Reilly from Annapolis, the one radiotelegram

purportedly sent by Berbillis from Greece, and all statements

contained therein, were erroneously admitted into evidence by the

district court.

There is no question in my mind that the erroneous

admission of the 13 radiotelegrams was not harmless error. That

evidence was crucial to the Government's case against Reilly. It

alone corroborated Captain Fuentes' testimony that Reilly ordered

the Khian Sea crew to dump the ash in the ocean, and that Reilly

thus knew that the ash had been dumped in the ocean. Indeed, the

88

Government indicated to the jury that the radiotelegrams, and not

the testimony of Captain Fuentes, was "the" evidence against

Reilly. R.app. 1109.0

Because those 13 incoming radiotelegrams were

enormously prejudicial to Reilly, I would hold that it was

reversible error for the district court to admit them into

evidence. Accordingly, I would reverse Reilly's convictions on

all charges, and I would remand his case to the district court

for a new trial.

III.

I also believe that the majority errs in holding that

the predicate question forming the basis for Dowd's conviction

for knowingly making a false declaration before the federal grand

jury was not fatally ambiguous. Rather, I am convinced that a

reversal and a remand for dismissal of the false declaration

0

In his summation to the jury, the prosecutor urged: "Ladies

and gentlemen, look at the cables, this is the evidence." R.app.

1109. The prosecutor further argued that:

Captain Fuentes is not the key witness in this

case. All of the evidence is what I am asking and

I submit to you what you need to consider . . . .

Not anyone, not anyone could have filled those

cables out. When you read them, read through them

and see how they fit together very well. See how

they show what was going on at the time.

R.app. 1117-18. While acknowledging that the Government bore the

burden of proof at trial, the prosecutor also told the jury that,

"I guarantee you one thing, if [Reilly] had anything to say that

would have discredited those cables, [he] would have brought

them. . . . [Reilly] didn't bring them because the cables are

accurate." R.app. 1122.

89

charge against Dowd is required because the question which he is

alleged to have answered falsely is so fundamentally ambiguous

that it would be entirely unreasonable to expect that he

understood it. United States v. Ryan, 828 F.2d 1010, 1015 (3d

Cir. 1987); United States v. Slawik, 548 F.2d 75, 86 (3d Cir.

1977).

Before the federal grand jury, the following exchange

took place:

A GRAND JUROR: Do you know what happened to the ash?

[DOWD]: No.

A GRAND JUROR: You have no idea?

[DOWD]: No, I don't. I honestly have not been

on that ship for two and a half years. *

* *

A GRAND JUROR: Seeing how you had all this concern of

not being able to unload this ash, you

didn't ask anybody where it went:

[DOWD]: Who is there to ask?

A GRAND JUROR: I guess you could start with asking the

captain. He ought to know where it

went.

[DOWD]: They say -- he's a funny guy. The first

time I met him. Honduran person. He

said "The ash is gone." And I said --

A GRAND JUROR: Just said good, but you didn't ask where

it went? You didn't want to know where

it went?

[DOWD]: No, I didn't ask and I don't know. All

right? Nor did he tell me.

(D. app. 475-76 (emphasis added.)

At trial, the jury was asked to answer special

interrogatories with respect to the above-quoted testimony.

Specifically, it was asked to decide the truth or falsity of

Dowd's negative responses to each of the following distinct

questions:

(1) "Do you know what happened to the ash?"

90

(2) "You have no idea?"

(3) "[Y]ou didn't ask where it went? You didn't want

to know where it went?"

The jury acquitted Dowd of giving false testimony in

response to question (3); that is, the jury found that Dowd did

not ask where the ash went and did not want to know where the ash

went. The jury did not return a verdict on question (1); thus it

never decided whether Dowd answered falsely when he testified

before the grand jury that he did not know what happened to the

ash. With respect to question (2), the jury found that Dowd

violated 18 U.S.C. § 1623(a) by falsely stating, "No, I don't,"

in response to the question, "You have no idea?"

While I agree with the majority that a jury is

"generally free to determine the meaning the defendant ascribed

to a question," I cannot agree with the majority's conclusion

that the question "You have no idea?" is amenable to jury

interpretation. See Majority Typescript at 50. The Government

concedes that "if viewed in isolation, that question would be

fatally ambiguous." U.S. br. at 50. Unlike the majority,

however, I am not persuaded by the Government's argument that the

ambiguity issue can be resolved in its favor and against Dowd

because "'viewed in context, the question posed to Dowd was 'you

have no idea [what happened to the ash]?'" See Majority

Typescript at 49 (quoting U.S. br. at 51).

In my opinion, the question "You have no idea?" not

only is imprecise and vague, it is susceptible to at least two

possible meanings. That much is evident by the equally plausible

91

constructions urged by Dowd and by the Government. As the

Government argues, the question could be viewed as asking Dowd,

"Are you certain that you have no knowledge of what happened to

the ash?" Or, as Dowd contends, the question can be viewed as

asking whether Dowd had "any idea -- however far it may fall

short of actual knowledge -- concerning what happened to the

ash?" D. rp.br. at 3-4.

It is impossible to say that "'men of ordinary

intellect could agree'" about the meaning of the question, "You

have no idea?" See Ryan, 828 F.2d at 1015, 1017 (citations

omitted). That question can just as easily be understood to be

asking whether Dowd had any actual knowledge of what happened to

the ash, as it could be understood as asking Dowd whether he had

any idea whatsoever about what happened to the ash, as Dowd

contends.

Although the majority indicates otherwise, see majority

typescript at 49, the district court never rejected Dowd's

argument that the question, "You have no idea?" was fatally

ambiguous.0 To the contrary, in granting Dowd a stay of sentence

0

Before trial, the district court rejected Dowd's motion to

dismiss the false declaration count on the ground that it was

based on questions and answers too ambiguous or vague so as to be

legally insufficient to support a perjury conviction. In doing

so, the district court focused only on two of the three questions

later submitted to the jury: "Do you know what hap

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