United States v. Ackerly

Summary

The First Circuit affirmed the grant of a new trial after a jury convicted Ackerly of wire fraud, honest services wire fraud, and conspiracy. The district court found a Confrontation Clause violation when the prosecutor, during redirect examination, asked a witness about a co-conspirator's guilty plea—a testimonial statement—without providing an opportunity for cross-examination. On appeal, the government argued that the statement was not admitted into evidence and that curative instructions eliminated any constitutional violation, but the First Circuit held that because the government failed to preserve these arguments, plain error review applied, and the claimed error was neither clear nor obvious under existing case law. The court also noted that curative instructions address prejudice, not whether a constitutional violation occurred, and affirmed that the district court did not abuse its discretion in ordering a new trial.

Holdings

1. The argument was not preserved because the government did not raise it in the district court, so it is subject to plain error review.
2. Even assuming error, it was not clear or obvious because the law is unsettled on whether the Confrontation Clause applies to statements not admitted into evidence.
3. The argument was not preserved because it was not raised below, so plain error review applies.
4. It was not clear or obvious because case law does not support the government's proposition that a single question cannot be a violation.

Questions Presented

1. Whether the district court's finding of a Confrontation Clause violation was clear or obvious error when the testimonial statement was not admitted into evidence.
2. Whether the district court's finding of a Confrontation Clause violation was clear or obvious error when the question was unanswered and followed by curative instructions.

Disposition

affirmed