Page 38 - July August 2020 TPA Journal

court sentenced him to life imprisonment. Maes help them and hurt Maes. During a lunch break at
now appeals both his conviction and his sentence, trial, lawyers for both sides met with Minor to hear
challenging a number of rulings that the district what he had to say. Following this meeting, the
court made before, during, and after trial. For the Government objected to Minor’s testimony on
following reasons, we affirm Maes’s conviction hearsay grounds. Maes’s counsel argued that the
and sentence. testimony was admissible.
The district court decided to hear proffered
In August 2018, a nine-count Second Superseding testimony from Minor outside the presence of the
Indictment charged Michael Maes with
jury. During his proffer, Minor explained that he
participating in a methamphetamine distribution heard Maes’s three co-conspirators hatch a plan to
and money laundering conspiracy. The case pin methamphetamine on Maes so they could
proceeded to trial in September 2018. Maes’s four
reduce their potential prison time. The district
co-conspirators—who had by then pleaded guilty court then heard additional argument about
to single-count bills of information—testified for
whether Minor should be allowed to testify.
the Government. Maes testified in his own The Government reiterated its position that
defense. Other witnesses also testified. Minor’s testimony was textbook hearsay—he
The jury found Maes guilty on eight of the nine
would testify to what he heard the others say—that
counts he faced. In December 2018, the district did not fit into any exception. Maes’s counsel
court sentenced Maes to a within-Guidelines term
responded that the testimony was not hearsay
of life imprisonment on counts one and two, the because it was not being offered for the truth of the
methamphetamine-related charges. The court matter asserted and, even if it was hearsay, it
sentenced Maes to within-Guidelines terms of 240
nonetheless qualified for the admission against a
months each for counts three and five through party opponent exception. The district court
nine, the money laundering charges.
recessed to consider the issue.
Returning to the bench, the district court orally
Maes raises a number of issues in this appeal. We
explained, in great detail, its ruling on the issue. It
address them individually in the same order he
began by recognizing that Maes’s failure to timely
presents them.
identify Minor as a witness prejudiced the
Government because it lacked time to investigate
Fabeon Minor’s testimony
his assertions. The court then rejected Maes’s
arguments that the proposed testimony was not
Maes met Fabeon Minor while the two were
hearsay and that it qualified for the admission
housed in the same area of a Mississippi jail. Later
against a party opponent exception. Finally, it sua
on, Minor was housed separately from Maes in a
sponte considered whether a portion of Minor’s
different area of the same jail. Also housed in this
testimony nevertheless qualified as an exception
different area of the jail at the same time as Minor
to hearsay under Federal Rule of Evidence 803(3)
were three of Maes’s four co-conspirators: Sean
as a then-existing mental, emotional, or physical
Ufland, Michael Denham, and Roland Jackson.
condition. Citing two Fifth Circuit cases, the
After the Government rested at trial, Maes made it district court explained that Minor would be
known that he intended to call Minor as a surprise allowed to testify about what he heard the trio
witness. Maes’s counsel explained that he had just planning. That is, he could testify that he heard
learned that Minor had overheard three of Maes’s them concocting a plan to coordinate their
co-conspirators concocting a plan in jail to testimony and pin methamphetamine on Maes
coordinate their testimony in a way that would because such statements fit within the 803(3)

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