Rule 804(b)(6) hearsay exception survives Sixth Amendment Confrontation Clause Crawford challenge

EVIDENCE/SENTENCING United States v. Montague, No. 04-4146, ___ F.3d ___ (10th Cir. Jul. 18, 2005)(Utah)(ordered published on Aug. 30, 2005). Appeal of conviction and sentence for being felon in possession of firearm in violation of 18 U.S.C. § 922(g)(1). HELD: (1) Use of defendant’s wife’s grand jury testimony as evidence at trial did not violate defendant’s Sixth Amendment Confrontation Clause rights as set out in Crawford v. Washington, 541 U.S. 36 (2004), as out-of-court statement that defendant had no opportunity to cross-examine. Grand jury testimony was properly admitted under Federal Rule of Evidence 804(b)(6) which allows admission of hearsay when declarant’s unavailability was procured through defendant’s wrongdoing. Rule 804(b)(6) survives Crawford because it establishes rule of forfeiture by wrongdoing that extinguishes confrontation claims on equitable grounds and does not purport to be an alternative means of determining reliability. (2) Where obstruction of justice enhancement to defendant’s sentence was based on judge-found facts and defendant was sentenced at low end of guideline sentencing range, it is not possible for court of appeals to conclude Booker sentencing error was harmless beyond reasonable doubt because it is not possible to say that district court would have imposed same sentence without enhancement under non-mandatory guidelines sentencing scheme. Read the opinion here.