United States v. Mornan

413 F.3d 372 (3d Cir. 2005)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

D operated out of Canada by placing newspaper advertisements in the United States offering loans to high-risk borrowers. When a customer called the toll-free number, a telephone sales representative would instruct the customer to complete and return a loan application. Once the application was completed, another person would call the customer and represent that the loan had been approved. The customer was then told that he or she would have to purchase a life or disability insurance policy to secure the loan. The victim was told that the insurance premiums would be returned upon full repayment of the loan amount. Those who paid the 'insurance premiums' never received any loans and their payments were never returned. At trial, Althea Burton, the cousin of Michael Willams, who owned and operated Icon Cheque Cashing Services, Inc. (Icon) in Ontario testified at trial. P attempted to establish that D used Icon to cash money orders that had been made out to various 'insurance companies.' P was permitted to show the jury Burton's testimony in the form of a videotape deposition that she gave in Canada. During that testimony, Burton indicated that she could no longer remember the particulars of her employment at Icon. P directed Burton to a statement she made to the prosecutor wherein she identified D as the individual who routinely cashed money orders at Icon that were made out to several 'insurance companies.' Burton stated she had memory loss from back and neck injuries suffered during a subsequent automobile accident. P offered the evidence under past recollection recorded under Fed. R. Evid. 803(5). The Court initially ruled that the statement did not qualify under Rule 803(5). P argued that the statement was admissible as a prior inconsistent statement under Fed. R. Evid. 801(d)(1)(A), and the court eventually admitted the statement, over D's objection, as a prior inconsistent statement under Rule 801(d)(1)(A). The court reasoned that 'it can't be concluded that the memory loss is solely due to the accident as opposed to her own volition. . . .' D was convicted and appealed. D appeals in part on the admissibility of Althea Burton's prior statement