no admission by silence when defendant's total response adds up to clear-cut denial
How later courts described this case
- no admission by silence when defendant's total response adds up to clear-cut denial
Written by the judges who cited it.
The opinion
THORNBERRY, Circuit Judge
(specially concurring):
I agree that the conviction should be reversed and the ease remanded for a new trial because the admission into evidence of Agent Greenwald’s report of Rizzo’s statement contravened the hearsay rule and the Confrontation Clause of the Sixth Amendment. Rizzo made the statement in question- — that Ragano had received the stock as “a finder’s fee, and attorney’s fee” — under oath before the Florida Beverage Commission in the course of applying for a liquor license. Since Ragano denied the truth of Rizzo’s prior-hearing statement when confronted with it, the statement was not an admission and should have been excluded under the hearsay rule. C. McCormick, Evidence, §§ 269, 270 (2d ed.1972). Because Rizzo was not subject to cross-examination by Ragano when he made the statement and did not testify at trial, his statement was likewise inadmissible under the Confrontation Clause. California v. Green, 1970, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 . Further, I agree that despite the district judge’s limiting instruction to the jury the constitutional error cannot be said to have been harmless beyond a reasonable doubt in the context of this case. Bruton v. United States, 1968, 391 U.S. 123, 135 , 88 S.Ct. 1620, 1628 , 20 L.Ed.2d 476 ; Chapman v. California, 1967, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 .
Since our ruling on the hearsay-confrontation issue is sufficient to dispose of this appeal, I would not reach the other asserted errors.