Court Affirms Conviction, Finds Admissible Hearsay in Fogg

By Robyn Hagan Cain on December 02, 2011 | Last updated on March 21, 2019

Remember the days before the Affordable Care Act when reimportation was one of the biggest healthcare controversies? Consumer groups argued that pharmaceutical drugs were cheaper in Canada than in the U.S., so patients should be allowed to import prescription drugs from our northern neighbor.

Today’s First Circuit Court of Appeals appellant had a similarly industrious plan, except that he was part of a conspiracy to import marijuana from Canada for re-sale in Maine.

Raymond Fogg, Jr. was convicted of conspiracy to possess with intent to distribute marijuana. The gist of the scheme was that a kingpin, Michael Pelletier, paid associates to transport marijuana from Canada by swimming the contraband across the St. John River near Madawaska, Maine. (We appreciate the irony of employing swimmers as runners.) The marijuana was then distributed to various customers for their use or sale.

Fogg was one of those customers.

At trial, Fogg was convicted based on the testimony of three witnesses, who claimed that the Pelletier had made statements implicating Fogg and had even written a note detailing Fogg's involvement. All of the testimony was admitted without objection. On appeal, Fogg claimed it was inadmissible hearsay.

Reviewing the statements for plain error, the First Circuit Court of Appeals found that two of the witness' statement were admissible because they had been made in furtherance of the conspiracy. The court upheld the testimony from the third witness, who had attempted to thwart the conspiracy, as a statement against interests.

The First Circuit Court of Appeals will not rescue an appellant from the testimony his attorney silently allowed into evidence. Object to hearsay at trial, and force opposing counsel to articulate why such statements qualify as admissible hearsay.

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