1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-27-1994

United States of America v. Reilly

Precedential or Non-Precedential:

Docket 93-7671

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

Nos. 93-7671, 93-7672, 93-7673, 93-7684, 

93-7685, 93-7686, 93-7694 

 

UNITED STATES OF AMERICA, 

 

v. 

WILLIAM P. REILLY, 

 Appellant

 

 UNITED STATES OF AMERICA, 

 

v. 

JOHN PATRICK DOWD, 

 Appellant 

 

 

On Appeal from the United States District Court 

for the District of Delaware 

(D.C. Crim. Nos. 92-00053-1, 93-00008, 

93-00010, 92-00053-2) 

 

Argued May 2, 1994 

BEFORE: GREENBERG and GARTH, Circuit Judges, 

and ROBRENO, District Judge* 

(Filed: July 28, 1994) 

 

 
2 

* Honorable Eduardo C. Robreno, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation. 

 
3 

 Lois J. Schiffer 

 Acting Assistant Attorney 

 General 

 Howard P. Stewart 

 Christina E. Steck 

 David C. Shilton (argued) 

 J. Carol Williams 

 United States Department of 

 Justice 

 P.O. Box 23795 

 L'Enfant Plaza Station 

 Washington, DC 20026 

 

 Attorneys for appellee

 

 Marc B. Tucker (argued) 

 Randolph K. Herndon 

 Daniel V. Folt 

 Andre G. Bouchard 

 Skadden, Arps, Slate, Meagher & 

 Flom 

 One Rodney Square 

 P.O. Box 636 

 Wilmington, DE 19899 

 Attorneys for appellant

 William P. Reilly 

 

 Andrew L. Frey (argued) 

 Lawrence S. Robbins 

 John J. Sullivan 

 Dorrann E. Banks 

 Mayer, Brown & Platt 

 2000 Pennsylvania Ave., N.W. 

 Washington, DC 20006 

 

 Attorneys for appellant

 John Patrick Dowd 

 

OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

 

I. FACTUAL AND PROCEDURAL HISTORY 
4 

 A. Factual History

 This is an appeal from judgments of conviction and 

sentence entered following a jury trial in the United States 

District Court for the District of Delaware.0 The appellants are 

John Patrick Dowd, who was convicted of knowingly making a false 

declaration under oath, 18 U.S.C. § 1623(a), and William P. 

Reilly, who was convicted of knowingly making false declarations 

under oath, 18 U.S.C. § 1623(a), and of transporting incinerator 

ash from the United States for the purpose of dumping it into the 

ocean, 33 U.S.C. § 1411(a). The charges against Dowd and Reilly 

arose from three sources: a Delaware indictment alleging that 

they knowingly made false material declarations before a grand 

jury; a Delaware information charging Reilly with the dumping 

violation; and a Pennsylvania indictment alleging that Reilly 

knowingly made false material declarations before a district 

court during a contempt hearing. The Pennsylvania indictment was 

transferred to the District of Delaware for consolidation and 

trial. The district court had subject matter jurisdiction 

pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 

U.S.C. § 1291 and 18 U.S.C. § 3742(a). 

 Dowd and Reilly were respectively the president and 

vice president of Coastal Carriers Corporation, which was based 

in Annapolis, Maryland. Coastal Carriers acted as an agent for 

the Amalgamated Shipping Corporation, a Bahamas corporation whose 

 

0We refer to the appendices as follows: (1) Dowd's appendix is 

D. app.; (2) Reilly's appendix is R. app.; (3) the government's 

appendix is U.S. app. We refer to the briefs in a similar way. 
5 

president and vice-president, respectively, were Robert Cordes 

and Henry Dowd, John Patrick Dowd's father. Cordes was also 

president of several other corporations including MASCO, Lily 

Navigation, and Romo Shipping Corporation. In early 1986, John 

Patrick Dowd and Reilly entered into negotiations with Joseph 

Paolino & Sons, Inc., a contractor with the City of Philadelphia, 

leading to Paolino and Amalgamated signing a contract on June 23, 

1986, in which Amalgamated agreed to transport and dispose of 

incinerator ash residue produced by the city. 

 Subsequently, Amalgamated entered into a two-year time 

charter with Lily Navigation for one of Lily's ships, the Khian

Sea. In August 1986, Paolino loaded approximately 13,500 tons of 

incinerator ash into the holds of the Khian Sea, while the ship 

was docked at Girard Point in Philadelphia. See U.S. app. at 

249-251. Later that month, the Khian Sea left Philadelphia for 

the Bahamas where Amalgamated intended to dispose of the ash. 

However, before the Khian Sea reached the Bahamas, that country 

denied Amalgamated permission to dispose of the ash. Apparently, 

the Khian Sea then sailed around the Caribbean for more than a 

year while a disposal site was sought. 

 In November 1987, Amalgamated had not yet found a site 

for the ash, and the ship was anchored in Puerto Cortes, 

Honduras. At that point, the captain of the Khian Sea left the 

ship, and Reilly hired Arturo Fuentes, a captain who lived in 

Puerto Cortes, to replace him. Reilly directed Fuentes to take 

the ship to Haiti, where the ash would be off-loaded. After the 

Khian Sea arrived in Haiti, its crew began off-loading the ash 
6 

but the Haitian military authorities interrupted the operation 

and required the ship to leave. At that time, more than half of 

the original ash remained on the ship. 

 Fuentes testified that Reilly then instructed him to 

take the ship to Ocean Cay in the Bahamas to pick up a small 

bulldozer called a "bobcat." See R. app. at 663-64. After 

picking up the bulldozer, the Khian Sea went to Ft. Pierce, 

Florida, where Reilly boarded the ship, and according to Fuentes, 

promised the ship's officers and crew additional compensation to 

begin dumping the ash into the ocean while en route to West 

Africa. Id. at 673-74. The Khian Sea left Ft. Pierce but before 

it began the dumping, "AMALGAMATED ANNAPOLIS" sent Fuentes a 

radiotelegram instructing him to "SUSPEND OPERATIONS" and proceed 

to Philadelphia. Id. at 679-80, 1189. Fuentes received another 

radiotelegram on February 27, 1988, signed "AMALGAMATED" 

instructing him to "CALL 301 544 2909 AT 1900 TODAY." Id. at 

1192. The phone number was Reilly's home phone number, which 

Fuentes frequently called to contact Reilly. Id. at 686. 

 The Khian Sea entered Delaware Bay on March 1, 1988, 

and anchored at Big Stone Beach. See D. app. at 71. While the 

ship was anchored there, Paolino and Coastal Carriers engaged in 

negotiations regarding the disposal of the ash. However, they 

could not reach an agreement on the price for disposal. See U.S. 

app. at 3-4. During this period, Reilly boarded the Khian Sea

several times, and according to Fuentes, he and Reilly discussed 

the execution of the dumping plan they had developed in Ft. 

Pierce. Subsequently, Reilly directed Fuentes to leave for the 
7 

Atlantic, and the Khian Sea left the Delaware Bay on May 22, 

1988, against the orders of the Coast Guard. See D. app. at 278; 

R. app. at 699-700, 854; U.S. app. at 5, 239-40. 

 A few days after the Khian Sea left the Delaware Bay, 

its crew began dumping the ash into the Atlantic Ocean. This 

dumping continued for about two weeks, but stopped when "all the 

equipment broke down." See R. app. at 855. During the two-week 

period of dumping, Fuentes and Reilly communicated frequently. 

See D. app. at 281-92. Subsequently, in July 1988, the Khian

Sea docked in Bijela, Yugoslavia, for repairs. See R. app. at 

856.0

 Reilly wrote to the American Bureau of Shipping to 

request that the ship be reclassified inasmuch as it had lost its 

classification after leaving the Delaware Bay without 

permission.0 However, on August 17, 1988, the Bureau sent a 

letter to Reilly informing him that its surveyor could not 

examine the holds because "the vessel remains about half loaded 

with cargo," see U.S. app. at 259, and thus, the ship only was 

authorized to sail directly to Manila for completion of the 

reclassification surveys, id. at 63. 

 

0While the ship was in Yugoslavia, Lily "sold" the ship and its 

cargo to Romo Shipping for $10, and the ship was renamed the 

Felicia. However, Lily and Romo had the same post office box in 

Freeport, Bahamas, and, as noted above, both were headed by 

Robert Cordes. See R. app. at 1167. Moreover, Coastal Carriers 

continued to act as the agent for the ship. Throughout our 

opinion, we will refer to the ship as the Khian Sea. 

0Before a ship can accept commercial cargoes, it must obtain a 

"classification" certifying that it is seaworthy and able safely 

to carry certain cargoes. The ship must be "reclassified" 

periodically. See U.S. app. at 34-35. 
8 

 Reilly met with Fuentes in Yugoslavia, and told him 

that: (1) Kimon Berbillis, a representative of Romo Shipping, 

would give him instructions regarding the remainder of the trip; 

(2) if no country agreed to accept the remaining ash, it would be 

dumped in the ocean; and (3) they would refer to the ash as 

"ballast." See D. app. at 299, 304-05. The ship left Yugoslavia 

and transited the Suez Canal in September 1988. Id. at 300-01. 

Subsequently, Fuentes received a radiotelegram from Berbillis, 

stating that Fuentes should arrive in Colombo, Sri Lanka, with 

only "500 TONS" of ballast, and that Reilly would cable him 

information he had requested. See R. app. at 1214. The next 

day, Fuentes received confirmation from Annapolis that the ship 

should arrive in Colombo with only 500 tons on board. Id. at 

1215. In accordance with these instructions, Fuentes dumped all 

but 500 tons of the remaining ash into the Indian Ocean. Id. at 

719-20. 

 On October 9, 1988, Fuentes received a radiotelegram 

directing him to proceed to Singapore, instead of to Colombo, see

id. at 1216, and on October 15, he received a radiotelegram 

directing him to dump the remaining 500 tons of ash, id. at 1218. 

Prior to the ship's arrival in Singapore, Reilly telefaxed a 

letter to the American Bureau of Shipping, stating that the Khian

Sea would arrive in Singapore "for the completion of class work." 

See U.S. app. at 261. When the ship arrived in Singapore in 

November 1988, its cargo holds were empty. According to Fuentes, 

Dowd boarded the ship in Singapore, removed gear that had been 

used in the dumping operation, see R. app. at 729-30, and told 
9 

Fuentes to replace the ship's logbook with a falsified logbook, 

see D. app. 322-25, and to tell any inquiring journalists that 

the ash had been dumped in a country which could not be revealed, 

id. at 320. The Khian Sea then proceeded to Shanghai, where it 

was reclassified. See U.S. app. at 64. Fuentes left the ship at 

this point, taking copies of radiotelegrams and communication 

logs with him. See R. app. at 665, 739. 

 

 B. Procedural History

 Paolino filed suit against Coastal Carriers, 

Amalgamated, and others, and on June 2, 1988, the United States 

District Court for the Eastern District of Pennsylvania issued a 

preliminary injunction, enjoining the defendants, their officers, 

and their agents from off-loading or disposing of the ash without 

first providing Paolino with at least three days written notice 

of the proposed place, manner, and method of disposal. The 

district court held a contempt hearing on December 15, 1988, to 

determine if the defendants had violated the preliminary 

injunction. At the hearing, Reilly was asked, under oath, 

whether he had "any knowledge . . . as to what happened to the 

incinerator residue" on board the Khian Sea, or "any knowledge as 

to the means by which it might be ascertained what happened to 

the residue." See U.S. app. at 275. Reilly responded "[n]o, 

sir" to both questions. Id. 

 In January 1990, Reilly appeared before a federal grand 

jury for the District of Delaware that was investigating 

potential ocean dumping violations in connection with the 
10 

activities of the Khian Sea between September 1986 and December 

1988. Id. at 285-403. Reilly was informed that the grand jury 

was investigating the disposal of ash from the Khian Sea and was 

advised of his right to leave and seek legal counsel. He then 

testified that he had no knowledge of what happened to the ash 

and had not directed anyone to remove the ash from the ship. Id. 

at 376-81. 

 Dowd appeared before the same grand jury on February 

14, 1990. See U.S. app. at 405-95. Like Reilly, he was informed 

of the scope of the grand jury's investigation and his rights. 

Dowd then testified that he did not have "any idea" what happened 

to the ash on board the Khian Sea. See D. app. at 212-13. 

 On June 14, 1992, an indictment was returned in the 

District of Delaware charging Dowd and Reilly with violating 18 

U.S.C. § 1623(a) by knowingly making false declarations before 

the federal grand jury. See R. app. at 49-57. Dowd and Reilly 

moved to dismiss the indictment, claiming that it did not allege 

adequately the essential elements of a section 1623(a) violation. 

United States v. Reilly, 811 F. Supp. 177, 179 (D. Del. 1993). 

However, the court held that the indictment alleged with 

sufficient clarity that Dowd and Reilly knowingly made false 

statements before a grand jury, these statements were material to 

the grand jury's investigation, and the questions that elicited 

these false statements were not too vague or ambiguous to support 

convictions under section 1623(a). 811 F. Supp. at 181. 

 On January 25, 1993, an indictment was returned in the 

Eastern District of Pennsylvania charging Reilly with violating 
11 

18 U.S.C. § 1623(a) by knowingly making false declarations during 

the contempt hearing. See R. app. at 62-66. Finally, on January 

28, 1993, an information was filed in the District of Delaware, 

charging Reilly with violating 33 U.S.C. § 1411(a), by knowingly 

transporting and causing to be transported material from the 

United States for the purpose of dumping it into ocean waters. R. 

app. at 58-61. The two indictments and the information were 

consolidated in the District of Delaware. Prior to trial, Dowd 

and Reilly unsuccessfully moved to disqualify the prosecutor from 

prosecuting the case because he had called them as witnesses 

before the Delaware grand jury. United States v. Reilly, Crim. 

Nos. 92-53-JJF, 93-8-JJF, 93-10-JJF, Memorandum Opinion at 9 (D. 

Del. May 7, 1993). Following a jury trial from May 17 to June 3, 

1993, Reilly was convicted of two counts of making false 

declarations and one count of dumping, and Dowd was convicted of 

one count of making a false declaration. 

 

II. DISCUSSION 

 A. Were the radiotelegams authenticated properly?

 The Khian Sea communicated with locations on shore by 

radiotelegram and the district court admitted into evidence 35 of 

the radiotelegrams that allegedly had been sent to or received by 

the Khian Sea between December 1987 and December 1988. See R. 

app. at 1189-94, 1198-1209, 1212-21, 1226-32. The district court 

based its evidentiary decision in part on its conclusion that 

there was "sufficient circumstantial evidence" to indicate that 
12 

the radiotelegrams were what the government claimed. See U.S. 

app. at 65-67. Reilly challenges this determination in this 

appeal. "We review the district court's ruling as to proper 

authentication for abuse of discretion." United States v. 

McGlory, 968 F.2d 309, 328 (3d Cir.), cert. denied, 113 S.Ct. 415 

(1992).0

 Reilly argues that the district court admitted all of 

the 35 radiotelegrams into evidence "on a wholesale basis as Mr. 

Reilly's admissions, irrespective of the very substantial 

differences among them, irrespective of the fact that most of 

them indisputably were sent or received by people other than Mr. 

Reilly[,] . . . and irrespective of the fact that the government 

did not even attempt to demonstrate, much less succeed in 

demonstrating, how each radiotelegram was 'authored' or 'adopted' 

by Mr. Reilly." See R. br. at 37-38. Thus, Reilly argues that 

the district court either failed to exercise its discretion or 

abused its discretion by admitting the radiotelegrams as Reilly's 

admissions. Id. at 38. Reilly also argues that the government 

should be "estopped" from asserting "that only a few of the 

radiotelegrams were sent by Reilly" and that most of the 

radiotelegrams "were introduced only to show the circumstances in 

which the few radiotelegrams from Mr. Reilly were sent," see R. 

 

0Neither Reilly nor the government distinguishes between the 

evidence before the district court at the time it ruled that the 

radiotelegrams satisfied the authenticity requirement and the 

evidence introduced later in the trial. Thus, we review all of 

the evidence relevant to authenticity. 
13 

reply br. at 12-13, because it did not make this argument to the 

district court, id. at 11. 

 The government argues that it did not attempt to 

authenticate all of the 35 radiotelegrams as Reilly's admissions 

and that the district court did not admit the radiotelegrams on 

this basis. U.S. br. at 18-19. The government maintains that 

although it introduced some of the radiotelegrams to "show that 

Reilly knew about and directed the dumping of the ash into the 

ocean[,] [o]thers . . . [were not sent or received by Reilly and] 

were introduced because they interrelate with the incriminating 

radiotelegrams, establishing the factual context and showing 

generally that Fuentes was testifying accurately as to the timing 

and substance of various events." Id. at 19-20. According to 

the government, the district court concluded that all of the 35 

radiotelegrams had been authenticated properly based on "the 

detailed testimony of Fuentes that the radiotelegrams were 

communications between Reilly and him, the subject matter of the 

radiotelegrams, their timing and interconnection with each other, 

their connection with undisputed evidence of phone calls between 

Reilly and Fuentes, and Reilly's own admission that he 

communicated with captain Fuentes by cable and phone." Id. at 

18. 

 We conclude that, contrary to Reilly's allegations, the 

government did not attempt to authenticate all of the 35 

radiotelegrams as Reilly's admissions. See R. app. at 123-29 

(Memorandum of the United States in Support of the Admission of 

Certain Cables and Other Records of the Khian Sea). Moreover, 
14 

although the district court focused on the connections between 

the radiotelegrams and Reilly when citing the circumstantial 

evidence of their authenticity, we do not believe that the 

district court admitted all of the 35 radiotelegrams as Reilly's 

admissions.0 We base this conclusion on the fact that 18 of the 

35 radiotelegrams admitted into evidence were sent from the Khian

 

0When ruling that the radiotelegrams satisfied the authenticity 

requirement, the district court stated: 

At the moment, I'm inclined to allow the 

government to use the messages, and I do it . 

. . based on my reading of the case law that 

talks about the level of proof necessary for 

authenticity . . . they don't have to be 

perfect in proving it, that your client sent 

these telexes or the messages and . . . 

[there is] sufficient circumstantial evidence 

to . . . [suggest] that they are what the 

government purports that they should be; that 

is, that they appear to be from the same 

location where he was; they appear to include 

contents of materials or communications that 

he would know the substance of the 

communications; and they appear to be in a 

pattern of communications that would suggest 

that if Fuentes received them and then acted 

on them and then responded to them and then 

received a response again from Reilly, all of 

which suggests that whoever it was who was 

sending the messages had knowledge of the 

transaction and the matters involved. 

 And I understand there's a risk that the 

sender may have been someone else other than 

Reilly. And by admitting them and finding 

that the government has reasonably satisfied 

[the] authenticity [requirement], I'm not 

making a finding that Reilly is absolutely 

the person who sent them. I'm making a 

finding that there's sufficient indicia of 

authenticity to allow them to be admitted 

into evidence. 

See U.S. app. at 65-66. 
15 

Sea, not to the Khian Sea, and the fact that certain 

radiotelegrams are communications between the Khian Sea and 

parties not associated with Reilly, including the Consul of the 

Republic of Honduras and the United States Coast Guard. Thus, we 

review the evidence of authenticity in this light. 

 Fed. R. Evid. 901(a) states that "[t]he requirement of 

authentication or identification as a condition precedent to 

admissibility is satisfied by evidence sufficient to support a 

finding that the matter in question is what its proponent 

claims." "Rule 901(a) treats preliminary questions of 

authentication and identification as matters of conditional 

relevance according to the standards of Rule 104(b). The 

condition of fact which must be fulfilled by every offer of real 

proof is whether the evidence is what its proponent claims." 5 

Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence 

¶901(a)[01] at 901-15 (1993). 

 Fed. R. Evid. 901(b) provides examples of appropriate 

methods of authentication. These examples include "[t]estimony 

that a matter is what it is claimed to be," Rule 901(b)(1), and 

"[a]ppearance, contents, substance, internal patterns, or other 

distinctive characteristics, taken in conjunction with 

circumstances," Rule 901(b)(4). Thus, "[i]t is clear that the 

connection between a message (either oral or written) and its 

source may be established by circumstantial evidence." United 

States v. Addonizio, 451 F.2d 49, 71 (3d Cir. 1971), cert. 

denied, 405 U.S. 936, 92 S.Ct. 949 (1972). Moreover, "[a]ny 

combination of items of evidence illustrated by Rule 901(b) . . . 
16 

will suffice so long as Rule 901(a) is satisfied." 5 Weinstein's 

Evidence ¶ 901(b)(1)[01] at 901-32. Finally, "[t]he burden of 

proof for authentication is slight." Link v. Mercedes-Benz of 

North America, Inc., 788 F.2d 918, 927 (3d Cir. 1986) (quoting 

McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 

1985)). We have explained that 

'the showing of authenticity is not on a par 

with more technical evidentiary rules, such 

as hearsay exceptions, governing 

admissibility. Rather, there need be only a 

prima facie showing, to the court, of 

authenticity, not a full argument on 

admissibility. Once a prima facie case is 

made, the evidence goes to the jury and it is 

the jury who will ultimately determine the 

authenticity of the evidence, not the court. 

The only requirement is that there has been 

substantial evidence from which they could 

infer that the document was authentic.' 

McGlory, 968 F.2d at 328-29 (quoting Link, 788 F.2d at 928 

(quoting United States v. Goichman, 547 F.2d 778, 784 (3d Cir. 

1976))) (emphasis omitted); see also Michael H. Graham, Federal 

Practice and Procedure: Evidence § 6821 at 849 (Interim Edition 

1992) ("Satisfaction of the requirement of authentication or 

identification is a matter to be approached in accordance with 

Rule 104(b). Accordingly once the court finds that evidence has 

been introduced sufficient to permit a reasonable juror to find 

that the matter in question is what its proponent claims, a 

sufficient foundation for introduction in evidence has been laid, 

Rule 104(b).") (citations omitted). 

 There are several witnesses whose testimony supports 

the authenticity of the 35 radiotelegrams. One of these 

witnesses is Humberto Carcamo Arias (Carcamo), the Khian Sea's 
17 

radio operator. He identified the radiotelegrams based on their 

appearance and content. See U.S. app. at 101-17. Carcamo 

testified that he transmitted the radiotelegrams sent from the 

Khian Sea and transcribed the radiotelegrams received by the 

Khian Sea. Moreover, he described the procedures that he used 

when sending and receiving the radiotelegrams. According to 

Carcamo, he would receive a handwritten message from Fuentes and 

then type the message on a SAIT Electronics radiotelegram form 

"to send it to Sait, S-a-i-t, Electronics. The original copy for 

them, one copy for us, and one copy for the head office." Id. at 

102. Carcamo received incoming radiotelegrams from coastal 

stations that transmitted the messages to the ship in Morse code. 

Upon receiving these messages, Carcamo decoded them, transcribed 

them, and delivered them to Fuentes. Id. at 103-04. Finally, 

Carcamo stated that he placed his initials "HCA" on the records 

of all the outgoing and incoming radiotelegrams he prepared. Id. 

at 102-03. Each of the 35 radiotelegrams admitted into evidence 

bears his initials, corroborating his testimony. 

 Fuentes's testimony also supports the authenticity of 

the radiotelegrams. Fuentes testified that he sent or received 

each of the 35 radiotelegrams admitted into evidence and 

corroborated Carcamo's testimony regarding Carcamo's role in the 

transmission and receipt of the radiotelegrams. See R. app. at 

653-55, 668-69. Fuentes's testimony also indicates that the 12 

radiotelegrams admitted into evidence that originated in 

Annapolis were from Reilly and that the three radiotelegrams 

admitted into evidence that the Khian Sea sent to Annapolis were 
18 

sent to Reilly. Fuentes testified that he was hired by Reilly, 

that he took his directions from Reilly, id. at 649-51, and that 

while he was at sea, Reilly was the "only person" he knew in 

Annapolis and was his primary contact at Coastal Carriers and 

Amalgamated Shipping, id. at 654, 659, 680. Other testimony 

links these radiotelegrams with Reilly. Clare Dobbins, a 

secretary at Reilly's office in Annapolis, testified that she 

witnessed Reilly receive radiotelegrams from the Khian Sea, and 

sometimes delivered them to him from the telex machine. See U.S. 

app. at 23-24, 28. Finally, Reilly admitted that he was in 

contact with Fuentes, and that he communicated with him by phone 

and by cable on behalf of Coastal Carriers and Amalgamated. Id. 

at 159, 182, 196. 

 In addition to the testimony authenticating the 

radiotelegrams, there are multiple pieces of circumstantial 

evidence that support the conclusion that the radiotelegrams are 

what the government claims they are, namely radiotelegrams to and 

from the Khian Sea, many of which were sent or received by 

Reilly. First, Fuentes, the captain of the Khian Sea during the 

time period at issue, provided the radiotelegrams to the 

government in January 1992, when he came to the United States to 

testify before the grand jury regarding the activities of the 

Khian Sea. See R. app. at 739. Fuentes testified that although 

he received instructions from the "company" to destroy documents 

that might prompt an investigation into the whereabouts of the 

ash, see id. at 754, he took all of the radiotelegrams with him 

when he left the Khian Sea, and then provided them to the 
19 

government in January 1992, id. at 665, 739.0 Although this 

evidence is not "dispositive" on the question of the 

radiotelegrams' authenticity, it "is surely probative." See

McQueeney, 779 F.2d at 929 ("the fact that the copies were 

produced by the plaintiff in answer to an explicit discovery 

request for his Sea Service Records, while not dispositive on the 

issue of authentication, is surely probative."). 

 Second, the appearance of the radiotelegrams also 

supports the conclusion that they are authentic. They are typed 

on forms bearing the letterhead "SAIT ELECTRONICS" and the label 

"RADIOTELEGRAM." Moreover, as we noted above, each of the 35 

radiotelegrams admitted into evidence bears Carcamo's initials, 

"HCA", in either the location designated for the name of the 

party sending the radiotelegram or the location designated for 

the party receiving the radiotelegram. "The specificity, 

regularity, and official appearance of the documents increase the 

likelihood of their being authentic." Id. (citations omitted). 

 Third, "the contents of the . . . [radiotelegrams] tend 

to support their claim to authenticity," id., by linking many of 

them to Reilly. Of the 18 radiotelegrams in evidence that were 

sent by the Khian Sea, three were sent to Annapolis, and of the 

17 radiotelegrams in evidence received by the Khian Sea, 12 

originated in Annapolis. See R. app. at 1186-1232. Annapolis, 

of course, was the site of the Coastal Carriers office where 

Reilly worked. Moreover, the three radiotelegrams in evidence 

 

0Carcamo also testified that Fuentes took the radiotelegrams with 

him when he left the Khian Sea. See U.S. app. at 117. 
20 

sent to Annapolis from the Khian Sea were sent to Reilly's telex 

number at Coastal Carriers. Id. at 1200, 1209, 1232.0 

 Of the 12 radiotelegrams in evidence that were received 

by the Khian Sea and originated in Annapolis, three were signed 

"COALCOAST," see id. at 1215, 1216, 1220, one was unsigned, id. 

at 1218, five were signed "AMALGAMATED ANNAPOLIS," or 

"AMALGAMATED," id. at 1189, 1192, 1193, 1199, 1207, and three 

were signed "MASCO," id. at 1203, 1205, 1206. Reilly testified 

that "COALCOAST" was the "callback" for Coastal Carriers, the 

company at which he was vice president. See U.S. app. at 194. 

Moreover, Coastal Carriers represented Amalgamated, and one of 

the radiotelegrams signed "AMALGAMATED" contained a message 

instructing Fuentes to call "301 544 2909," Reilly's home phone 

number, see R. app. at 1192.0 Before the Khian Sea received any 

radiotelegrams signed "MASCO," it received a radiotelegram signed 

"AMALGAMATED SHIPPING CORPORATION" and stating "PLEASE REPLY 

AMALGAMATED CARE OF MASCO FREEPORT BAHAMAS," id. at 1201. 

Furthermore, a radiotelegram signed "MASCO" and dated June 18, 

1988, stated "DO NOT CALL DAYTIME." Id. at 1205. The primary 

numbers that Fuentes called for business purposes were Reilly's. 

Finally, the unsigned radiotelegram sent from Annapolis included 

the following message "COMFROM [sic] ROMO COASTAL CARRIERS 

CORPORATION ANNAPOLIS MARYLAND RCA 205654 OR T/X 7108678557" 

containing the Coastal Carriers telex number. Id. at 1218. 

 

0It is undisputed that the telex number for Coastal Carriers was 

7108678557. See R. app. at 1218. 

0It is undisputed that Reilly's home phone number was 301-544-

2909. See U.S. app. at 17. 
21 

 The Khian Sea's logs of outgoing radiotelegrams and 

phone calls also support the conclusion that Reilly sent the 

radiotelegrams originating in Annapolis, because they are 

consistent with Fuentes's testimony that he was reporting to 

Reilly and taking directions from him via telephone and telex. In 

considering the logs it is, of course, important to recognize 

that there are far more radiotelegrams listed than were admitted 

into evidence. The log covering December 1987 through February 

1988 indicates that ten radiotelegrams were sent from the Khian

Sea to the telex in Reilly's office at Coastal Carriers in 

Annapolis. Id. at 1186-88.0 The log covering May 1988 through 

July 1988 indicates that the Khian Sea sent four radiotelegrams 

to Annapolis, id. at 1195, and that Fuentes made five phone calls 

to Reilly's home phone number and four phone calls to Reilly's 

office number, id. at 1196-97.0 The log covering September 1988 

through October 1988 identifies three phone calls from the Khian

Sea to Reilly's home, and three to Reilly's office. Id. at 1210-

11. Finally, the log covering November 1988 through December 

1988 indicates that the Khian Sea sent two radiotelegrams to 

Reilly's office and that two phone calls were made to Reilly's 

home number and two to his office number. Id. at 1222-24. 

 Finally, as the government argues, the messages in the 

radiotelegrams and their relationship to each other, to Fuentes's 

 

0As we noted above, it is undisputed that the telex number for 

Coastal Carriers was 7108678557. See R. app. at 1218. 

0As we noted above, it is undisputed that Reilly's home phone 

number was 301-544-2909. It is also undisputed that the office 

phone numbers for Coastal Carriers were 301-268-9797, 301-268-

9798, and 301-268-9799. See U.S. app. at 17, 19-20, 137-138. 
22 

testimony, and to other evidence indicate that Reilly sent the 

radiotelegrams originating in Annapolis and support the district 

court's conclusion that all of the radiotelegrams in evidence 

satisfied the authenticity requirement. See U.S. br. at 24-31. A 

letter or telegram "may be authenticated by its contents with or 

without the aid of physical characteristics if the letter is 

shown to contain information that persons other than the 

purported sender are not likely to possess." Graham, Federal 

Practice and Procedure: Evidence § 6825 at 865-68; see also

United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993) ("'a 

document or telephone conversation may be shown to have emanated 

from a particular person by virtue of its disclosing knowledge of 

facts known peculiarly to him.'") (quoting Fed. R. Evid. 901 

advisory committee note ex. (4)), cert. denied, 114 S.Ct. 1660 

(1994); 5 Weinstein's Evidence ¶ 901(b)(4)[01] at 901-60 ("A 

letter, for example, can be shown to have emanated from a 

particular person or business by the fact that it would be 

unlikely for anyone other than the purported writer to be 

familiar with its subject matter and content."). "Although we do 

not know precisely how many people had the information contained 

in the proffered evidence, we suspect, as noted above, that the 

number is small. Therefore, the nature of the information in the 

documents further supports their authenticity." McQueeney v. 

Wilmington Trust Co., 779 F.2d at 930. Moreover, "[w]here 

letters [or telegrams] fit into a course of correspondence or a 

progressive course of action, proof of the letters' relationship 
23 

to these events can authenticate any of the letters [or 

telegrams]." 5 Weinstein's Evidence ¶ 901(b)(4)[04] at 901-75. 

 The messages contained in the radiotelegrams, and the 

way in which they relate to each other, to Fuentes's 

conversations with Reilly, and to the activities of the Khian Sea

link Reilly to the 12 radiotelegrams from Annapolis and one which 

Berbillis sent to the Khian Sea from Greece. A persuasive 

example of this circumstantial evidence is "the series of 

radiotelegrams introduced as Govt. Exhibit 69, and . . . [their 

relationship] to the testimony of Captain Fuentes and other 

documents." U.S. br. at 24. According to Fuentes, Reilly told 

him to take directions from Kimon Berbillis once the Khian Sea

left Yugoslavia, that Abdel Hakim, a vice president of Romo 

Shipping, also might send him messages, see R. app. at 714, 723, 

and that "ballast" was to be the code word for the incinerator 

ash on board the Khian Sea, id. at 719-21. Thus, the record 

supports the conclusion that Berbillis and Hakim were acting on 

behalf of Reilly or at his behest. Id. at 714-17, 723-24. 

Government Exhibit 69A is a radiotelegram that Fuentes sent to 

Berbillis on September 29, 1988, stating that the ship had 

departed Suez, and that "NO RADIO CONTACT WAS POSSIBLE WITH 

HAKIM," and asking Berbillis to "PLEASE SEND INSTRUCT [sic] HOW 

MUCH BALLAST SHOULD I ARRIVE WITH." Id. at 1212. Fuentes 

testified that Government Exhibit 69B is the second radiotelegram 

he sent to Berbillis. In this radiotelegram, Fuentes asks for 

instructions on what to do when he arrives in Colombo, Sri Lanka, 

and states that he had "NO SUCCESS ON PHONE TO USA." Id. at 
24 

1213. According to Fuentes, the person he was trying to reach in 

the "USA" was Reilly. Id. at 717. 

 Moreover, Government Exhibit 69C is Berbillis's reply 

to Fuentes's request for instructions, and it states, "PLEASE 

DELAY YOU ETA UNTIL NOON OCTOBER 14 STOP TRY ARRIVE WITH 500 TONS 

IN ONEHOLD STOP REILLY WILL CABLE YOU INFO YOU REQUESTED." Id. 

at 1214 (emphasis added). 

A common aspect of authentication permissible 

under Rule 901(b)(4) is the reply doctrine 

which provides that once a letter, telegram, 

or telephone call is shown to have been 

mailed, sent or made, a letter, telegram or 

telephone call shown by its contents to be in 

reply is authenticated without more. 

Graham, Federal Practice and Procedure: Evidence § 6825 at 868-

69; 5 Weinstein's Evidence ¶ 901(b)(4)[05] at 901-76 ("A letter 

can be authenticated by testimony or other proof that it was sent 

in reply to a duly authenticated writing. A reply letter often 

needs no further authentication because it would be unlikely for 

anyone other than the purported writer to know and respond to the 

contents of an earlier letter addressed to him."). Accordingly, 

inasmuch as Fuentes's testimony authenticates Government Exhibit 

69B, and 69C is a reply to 69B, 69C satisfies the authenticity 

requirement. Of course, the contents of Government Exhibit 69C 

also link the radiotelegram to Reilly, whose name is mentioned 

explicitly in the radiotelegram. 

 Government Exhibit 69C helps authenticate Government 

Exhibit 69D. According to Government Exhibit 69C, Reilly was 

going to send Fuentes a radiotelegram containing instructions 

regarding his arrival in Sri Lanka and how much "ballast" Fuentes 
25 

should arrive with. One day after receiving this radiotelegram, 

Fuentes received Government Exhibit 69D, a radiotelegram from 

Annapolis that was signed "COALCOAST" and stated "SUGGEST ARRIVE 

COLOMBO PM 14TH WITH ONLY 500 TONS BALLAST ADVISING AGENTS OTHERS 

DETAILS LATER CONFIRM ROMO." R. app. at 1215. The log of the 

ship's outgoing calls and radiotelegrams indicates that Fuentes 

called Reilly's home phone number on October 9, the following 

day, id. at 1210, and Fuentes testified that both the 

radiotelegram and Reilly's statements on the phone were 

instructions to dump all but 500 tons of the remaining ash, id. 

at 719-20. The radiotelegram admitted as Government Exhibit 69D 

and its relationship (1) to Berbillis's earlier radiotelegram, 

(2) to the record of Fuentes's call to Reilly and (3) to 

Fuentes's testimony, authenticate Government Exhibit 69D and 

indicate that it came from Reilly. It is unlikely that someone 

other than Reilly would use the alleged code word "ballast," and 

send Fuentes instructions regarding his arrival in Colombo and 

how many tons of ballast to arrive with, especially in light of 

Berbillis's earlier radiotelegram. See 5 Weinstein's Evidence 

¶901(b)(4)[01] at 901-66 ("The use of code words or other names 

or nuances of speech particularly known or used by the purported 

writer can authenticate a writing."). 

 Fuentes received a second radiotelegram on October 9 

that also was signed "COALCOAST" and instructed him to go to 

Singapore instead of to Sri Lanka. See R. app. at 1216. The 

circumstances indicate that Reilly also sent this radiotelegram, 

Government Exhibit 69E. After receiving this radiotelegram, 
26 

Fuentes sent a radiotelegram (Government Exhibit 69F) to 

Berbillis, informing him that the ship was going to Singapore. 

Id. at 1217. Subsequently, on October 15, Fuentes received an 

unsigned radiotelegram (Government Exhibit 69G) sent from 

Annapolis that stated, "DISPOSE 500 BALLAST PRIOR ARRIVAL 

SINGAPORE . . . CONFORM [sic] ROMO, COASTAL CARRIERS CORPORATION 

ANNAPOLIS MARYLAND RCA 205654 OR T/X 7108679557." Id. at 1218. 

Fuentes testified that he interpreted the message as an 

instruction to dump the remaining 500 tons of ash. Id. at 725. 

Fuentes's testimony, the reference to the "500 BALLAST" which 

appeared earlier in Government Exhibit 69D, the references to 

Coastal Carriers and its telex number in Annapolis, and the 

context of the radiotelegram more than suffice to authenticate 

this radiotelegram and to support the inference that Reilly sent 

it. Again, it is unlikely that someone other than Reilly would 

use the alleged code word "ballast," be aware of the facts that 

the ship had only 500 tons of ash remaining in its holds and that 

it was scheduled to arrive in Singapore, and send Fuentes 

instructions to dispose of the remaining ash. 

 On the day that Fuentes received this radiotelegram, 

Fuentes sent another radiotelegram to Berbillis (Government 

Exhibit 69H) informing him that the ship's arrival in Singapore 

would be delayed until November 5, due to "TROUBLES WITH DOZZER 

AND GENERATORS ETC ETC PLUS FINAL CLEANING HARDER THAN EXPECTED." 

Id. at 1219. Fuentes testified that on the following day, he 

spoke with Reilly about the ash dumping process, id. at 726, and 

the log of the ship's outgoing calls and radiotelegrams confirms 
27 

that he called Reilly's home phone number that day, id. at 1210. 

Finally, on October 19, a letter bearing the typed signature of 

Reilly was faxed from Coastal Carriers to the American Bureau of 

Shipping, informing it that the Khian Sea would arrive in 

Singapore "for completion of class work commenced in Bijela, 

Yugoslavia." See U.S. app. at 261. Reilly knew that the "class 

work" could not be completed until the ship's holds were empty.0 

Thus, the source, typed signature, and message indicate that 

Reilly sent this letter, and support our conclusion that Reilly 

sent the radiotelegrams originating in Annapolis, and that, 

having authorized Berbillis to communicate with Fuentes on his 

behalf, Reilly was informed of the contents of their 

correspondence. 

 Reilly argues that four of the radiotelegrams allegedly 

sent from the Khian Sea to Athens, Greece, during the period when 

the crew allegedly was dumping ash into the Indian Ocean were not 

properly authenticated because, although they bore Carcamo's 

initials, "Carcamo himself testified that he 'didn't transmit any 

message' during that period because of 'captain's order' not to 

do so." See R. br. at 40 n.8 (quoting R. app. at 885-86). 

However, Fuentes testified that he only instructed Carcamo not to 

communicate with passing ships during the dumping operation, and 

that the Khian Sea remained in contact with Annapolis. See R. 

 

0On August 17, 1988, the American Bureau of Shipping sent a 

letter to Reilly informing him that its surveyor could not 

conduct the examination required for reclassification of the 

Khian Sea because "the vessel remains about half loaded with 

cargo," see U.S. app. at 259. 
28 

app. at 837-38. It is well-established that "upon consideration 

of the evidence as a whole, if a sufficient foundation has been 

laid in support of introduction, contradictory evidence goes to 

the weight to be assigned by the trier of fact and not to 

admissibility." Graham, Federal Practice and Procedure: Evidence 

§ 6821 at 850 (citation omitted); 5 Weinstein's Evidence 

¶901(a)[01] at 901-17 ("The issue of credibility and probative 

force is for the jury."). 

 Thus, we conclude that the evidence was more than 

adequate to authenticate the 35 radiotelegrams admitted into 

evidence. Moreover, even if the four incoming radiotelegrams 

that the evidence does not link to Reilly were not authenticated 

properly, see R. app. at 1201 (68D), 1202 (68E), 1226 (70A), 1228 

(70C), their admission into evidence was harmless.0 "Trial error 

is harmless if it is highly probable that the error did not 

affect the judgment." United States v. Copple, 24 F.3d 535, 546 

(3d Cir. 1994) (citing United States v. Simon, 995 F.2d 1236, 

1244 (3d Cir. 1993)). See also Lippay v. Christos, 996 F.2d 

1490, 1500 (3d Cir. 1993). We have held that "[h]igh probability 

exists if the court has a 'sure conviction that the error did not 

prejudice the defendant.'" Copple, 24 F.3d at 546 (quoting 

Simon, 955 F.2d at 1244). As the government argues, "[t]he jury 

could reasonably find that the radiotelegrams introduced as GE 

69D and 69G (R. app. 1215, 1218) were orders from Reilly to dump 

ash into the ocean." See U.S. br. at 27. Consequently, we are 

 

0These radiotelegrams should not be confused with the four 

radiotelegrams the Khian Sea sent to Athens. 
29 

convinced that the district court's admission of the four 

incoming radiotelegrams not linked to Reilly did not prejudice 

him, as these radiotelegrams only provided additional context for 

the truly incriminating radiotelegrams which the evidence did

link to Reilly. 

 B. Did the radiotelegrams constitute inadmissible 

hearsay?

 Fed. R. Evid. 801 defines hearsay as a "statement other 

than one made by a declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter 

asserted." Hearsay is generally inadmissible because 

'the statement is inherently untrustworthy: 

the declarant may not have been under oath at 

the time of the statement, his or her 

credibility cannot be evaluated at trial, and 

he or she cannot be cross-examined.' 

United States v. Console, 13 F.3d at 656 (quoting United States 

v. Pelullo, 964 F.2d 193, 203 (3d Cir. 1992)). "We exercise 

plenary review over the district court's interpretation of the 

Federal Rules of Evidence but review a ruling based on a 

permissible interpretation of a rule for abuse of discretion." 

Console, 13 F.3d at 656 (citations omitted). 

 We accept Reilly's contention that the incoming 

radiotelegrams to the Khian Sea were the product of three out-ofcourt "statements": (1) the sender's statement to a coastal 

station operator, (2) the coastal station's transmission of the 

message in Morse code to the Khian Sea, and (3) Carcamo's 

documenting of the message. See R. br. at 44. Rule 805 provides 

that, "[h]earsay included within hearsay is not excluded under 
30 

the hearsay rule if each part of the combined statements conforms 

with an exception to the hearsay rule." See Fed. R. Evid. 805. 

However, Reilly argues that each of these "statements" 

constitutes inadmissible hearsay and that therefore the district 

court abused its discretion by admitting the incoming 

radiotelegrams into evidence. See R. br. at 43-48. We disagree. 

 Our review indicates that each of the three 

"statements" reflected in 13 of the 17 incoming radiotelegrams in 

evidence, the 12 from Reilly and the one from Berbillis in 

Greece, was admissible. The initial statement reflected in the 

incoming radiotelegrams, the statement by the sender to a coastal 

station operator, consists of several components: (1) the 

message; (2) the radiotelegram's point of origin and its 

destination; and (3) the date on which the radiotelegram was 

handed in to the coastal station operator. None of the messages 

contained in the incoming radiotelegrams constitute hearsay 

because they consist largely of instructions to Fuentes. See R. 

app. at 1189 (Govt. Exh. 67A), 1192 (Govt. Exh. 67D), 1193 (Govt. 

Exh. 67E), 1199 (Govt. Exh. 68B), 1201 (Govt. Exh. 68D), 1202 

(Govt. Exh. 68E), 1203 (Govt. Exh. 68F), 1205 (Govt. Exh. 68H), 

1206 (Govt. Exh. 68I), 1207 (Govt. Exh. 68J), 1214 (Govt. Exh. 

69C), 1215 (Govt. Exh. 69D), 1216 (Govt. Exh. 69E), 1218 (Govt. 

Exh. 69G), 1220 (Govt. Exh. 69I), 1226 (Govt. Exh. 70A), 1228 

(Govt. Exh. 70C). "Instructions to an individual to do something 

are . . . not hearsay," Graham, Federal Practice and Procedure: 

Evidence § 6705 at 409, because they are not declarations of fact 

and therefore are not capable of being true or false, Crawford 
31 

v. Garnier, 719 F.2d 1317, 1323 (7th Cir. 1983), United States v. 

Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert. denied, 459 U.S. 

972, 103 S.Ct. 305 (1982), United States v. Keane, 522 F.2d 534, 

558 (7th Cir. 1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481 

(1976). 

 As the government argues, the messages "were not 

offered to prove the truth of the statements contained within 

them, but instead to prove the fact that the certain instructions 

had been given," see U.S. br. at 32; Anderson v. United States, 

417 U.S. 211, 220 n.8, 94 S.Ct. 2253, 2260 n.8 (1974), and as 

circumstantial evidence of Reilly's state of mind, namely his 

knowledge of the ash dumping operation, 4 Weinstein's Evidence 

¶801(c)[01] at 801-103 ("[a] statement offered to show the state 

of mind of the declarant is analytically not hearsay if the 

declarant does not directly assert the state of mind that is in 

issue."). Although one of the incoming messages included 

Reilly's phone number, see R. app. at 1192, another included his 

name, id. at 1214, and a third included the telex number at 

Coastal Carriers, id. at 1218, even these three messages do not 

constitute hearsay, because they were offered only as 

circumstantial evidence that Reilly sent the radiotelegrams 

originating in Annapolis. See McGlory, 968 F.2d at 333 

(documents did not constitute hearsay by virtue of the fact that 

they contained the defendant's name and the names and phone 

numbers of other individuals, as they were "offered merely as 

circumstantial evidence of . . . [defendant's] association" with 

the other individuals). Thus, the first component of the 
32 

statements by the sender to a coastal station operator, which we 

refer to as the "messages," did not constitute hearsay. 

Similarly, the typed signatures on the 12 radiotelegrams 

originating in Annapolis did not constitute hearsay as they were 

offered only as circumstantial evidence that the radiotelegrams 

were sent by Reilly.0 

 However, the other components of the statements by the 

sender to the coastal station operator, namely the point of 

origin and destination of each radiotelegram, and the date on 

which each radiotelegram was sent, were introduced to prove their 

truth, i.e., to prove that the radiotelegrams were sent from the 

point of origin to the destination on the designated date. We 

consider this information to be statements made by the sender and 

then relayed by the coastal station operator because the sender's 

verbal and nonverbal conduct in filing a radiotelegram at a 

particular coastal station on a particular date for transmission 

to a designated location intentionally communicated each of these 

facts to the coastal station operator for transmission. In 

effect, the sender told the operator these facts so the operator 

could tell them to the Khian Sea.

0 

 

0If the typed signatures actually read "Reilly," then they would 

have been offered for the truth of the matter asserted. However, 

as we discuss below, such radiotelegrams would have been 

admissible, nonetheless, as admissions. See Fed. R. Evid. 

801(d)(2)(A). The typed signature "Kimon," see R. app. at 1214, 

on the radiotelegram that the government claims is from Kimon 

Berbillis, is admissible on this basis. See Fed. R. Evid. 

801(d)(2)(C). 

0If the government had called a coastal station operator as a 

witness, and the operator had testified regarding the receipt and 

transmission of the messages and laid the foundation for the 

introduction of his or her "statements" pursuant to the business 
33 

 In the 12 radiotelegrams originating in Annapolis, 

these "statements" regarding the point of origin and destination 

of the radiotelegram, and the date on which the radiotelegram was 

sent were admissible pursuant to Federal Rule of Evidence 

801(d)(2)(A). Rule 801(d)(2)(A) provides that statements made by 

a party to an action and offered into evidence by an opposing 

party do not constitute hearsay. As we discussed above, there is 

substantial evidence indicating that Reilly sent the 12 

radiotelegrams originating in Annapolis.0 Annapolis was the site 

of the Coastal Carriers office where Reilly worked, and the 

contents of these 12 radiotelegrams, combined with other 

circumstantial evidence and Fuentes's testimony indicate that 

they were sent by Reilly. 

 In addition to the circumstantial evidence we have 

already discussed, the relationship between Reilly's three sets 

of meetings with Fuentes and certain radiotelegrams that Fuentes 

 

records exception to the hearsay rule, we would not need to take 

such a complex layered approach to these components of the 

radiotelegrams. But inasmuch as the operator or operators did 

not testify and the radiotelegrams were not introduced as 

business records of the coastal sending station, our complex 

layered approach to the hearsay analysis is necessary. 

0The dissent maintains that we "effectively and impermissibly 

equate[] our evidentiary rules governing admissibility with the 

slight showing required for authentication." See dissent 

typescript at 5. It is true that we rely on the evidence linking 

Reilly to the 12 radiotelegrams originating in Annapolis and the 

radiotelegram from Berbillis both as evidence of the 

radiotelegrams's authenticity and as evidence that the statements 

contained in the radiotelegrams do not constitute hearsay. We do 

so, however, not because we equate the showings for authenticity 

and admissibility, but because the substantial quantity of 

evidence linking Reilly to these radiotelegrams satisfies not 

only the "slight" showing required for authenticity, but also the 

greater showing required for admissibility. 
34 

received subsequent to these meetings indicates that the 

radiotelegrams originating in Annapolis were sent by Reilly.0

First, Reilly met with Fuentes in Ft. Pierce, Florida, and 

according to Fuentes, promised the ship's officers and crew 

members additional compensation to begin dumping the ash while en 

route to West Africa. Subsequent to this meeting, Fuentes 

received three radiotelegrams from Annapolis, the first 

instructing him to "SUSPEND OPERATIONS" and return to 

Philadelphia, see R. app. at 1189, the second instructing him to 

call "301 544 2909," id. at 1192, Reilly's home phone number, and 

 

0The dissent contends that our "hearsay analysis is fundamentally 

flawed because it is premised on the assumption that the 12 

radiotelegrams allegedly sent by Reilly originated in Annapolis, 

where Reilly lived and worked. . . . Yet, the Government never 

adduced any evidence, apart from the disputed documents 

themselves, that the messages contained in the radiotelegrams had 

actually originated in Annapolis." See dissent typescript at 7. 

First of all, our hearsay analysis is not premised solely on the 

evidence that 12 of the radiotelegrams originated in Annapolis. 

Evidence that these radiotelegrams originated in Annapolis was 

only one of many pieces of evidence linking these 12 

radiotelegrams to Reilly. Other pieces of evidence included 

Fuentes's testimony, see maj. typescript at 17, the messages and 

typed signatures contained in the radiotelegrams, id. at 19-20, 

the Khian Sea's logs of outgoing radiotelegrams and phone calls 

which corroborate Fuentes's testimony that he was taking 

directions from Reilly, id. at 20-21, Reilly's admission that he 

communicated with the Khian Sea by radiotelegram, id. at 17, 

Clare Dobbins's testimony that she witnessed Reilly receive 

radiotelegrams from the Khian Sea, id., and the relationship 

between the messages in the radiotelegrams, Fuentes's testimony, 

the activities of the Khian Sea, and the timing of Reilly's three 

sets of meetings with Fuentes, id. at 21-27, 34-36. Second of 

all, the "documents themselves" are not the only evidence 

indicating that the radiotelegrams originated in Annapolis. The 

relationship between the outgoing radiotelegrams and calls to 

Annapolis, and the 12 radiotelegrams indicating that they were 

"handed in at Annapolis" also indicates that these radiotelegrams 

were, in fact, sent from Annapolis. 
35 

the third containing instructions regarding the ship's arrival in 

Philadelphia, id. at 1193. 

 Once the ship returned to Philadelphia, Reilly met with 

Fuentes again, and according to Fuentes, they discussed the 

execution of the dumping plan they had developed. Subsequent to 

this meeting, after the ship had left Philadelphia, Fuentes 

received a radiotelegram from Annapolis instructing him to 

proceed toward Cape Verde, away from the United States until the 

"MISSION" was accomplished, id. at 1199, along with other 

radiotelegrams containing instructions on how to proceed, id. at 

1203, 1205, 1206, 1207. According to Fuentes, the crew began 

dumping the ash into the Atlantic Ocean and continued to do so 

until problems developed with the machinery they were using, at 

which point, Fuentes sent a radiotelegram to Reilly stating that 

3500 tons of "CARGO" remained on board, and that the equipment 

needed to off-load the ash had broken. Id. at 1209. 

 Finally, the third place in which Reilly and Fuentes 

met was Bijela, Yugoslavia. Fuentes testified that at this 

meeting, Reilly told him that: (1) Kimon Berbillis would give him 

instructions regarding the remainder of the trip; (2) if no 

country agreed to accept the remaining ash, it would be dumped in 

the ocean; and (3) they would refer to the ash as "ballast." See

D. app. at 299, 304-05. Following this meeting, Fuentes received 

a radiotelegram sent from Greece by Berbillis instructing him to 

arrive in Sri Lanka with only 500 tons of ballast (the 13th 

incoming radiotelegram with admissible statements), see R. app. 

at 1214, a radiotelegram originating in Annapolis confirming 
36 

these instructions, id. at 1215, another radiotelegram from 

Annapolis instructing him to proceed to Singapore instead of Sri 

Lanka, id. at 1216, a third radiotelegram from Annapolis 

instructing him to dispose of the remaining 500 tons of "BALLAST" 

before arriving in Singapore, id. at 1218, and a fourth 

radiotelegram with instructions regarding the ship's arrival in 

Singapore, id. at 1220. Thus, the relationship between Fuentes's 

testimony regarding the substance of his meetings with Reilly and 

the content of the messages that Fuentes received following his 

meetings with Reilly confirms that the messages originating in 

Annapolis were from Reilly. 

 The radiotelegram originating in Greece bore the typed 

signature "KIMON," Berbillis's first name. Id. at 1214. 

Fuentes's testimony regarding his contact with Berbillis confirms 

that the radiotelegram was from Berbillis, and indicates that 

Reilly had authorized Berbillis to make the "statements" 

contained in the radiotelegram to Fuentes. In fact, according to 

Fuentes, Reilly introduced him to Berbillis and specifically told 

him to take instructions from Berbillis once the ship left 

Yugoslavia. Id. at 714-17, 723-24.0 

 "Rule 801(d)(2)(C) specifically excludes from the 

definition of hearsay any statements used against a party which 

were made by another person authorized by the party to make a 

 

0The dissent states that "there is no . . . proof to establish 

that Berbillis . . . 'was acting on behalf of Reilly or at his 

behest.'" See dissent typescript at 13. However, we find 

Fuentes's testimony sufficient to establish the relationship 

between Reilly and Berbillis. 
37 

statement concerning the subject." Lightning Lube, Inc. v. Witco 

Corp., 4 F.3d 1153, 1198 (3d Cir. 1993). In light of the 

evidence indicating that Reilly authorized Berbillis to send 

instructions to Fuentes on his behalf, the statements made by 

Berbillis to a coastal station operator, see R. app. at 1214, are 

admissible pursuant to Rule 801(d)(2)(C). See Graham, Federal 

Practice and Procedure: Evidence §6722 at 503-04 ("Authorization 

to make a statement concerning the subject matter may . . . be 

established by the acts or conduct of the principal or his 

statements to the agent or third party."); see also Michaels v. 

Michaels, 767 F.2d 1185, 1201 (7th Cir. 1985) (held that telexes 

sent by a third party to potential buyers of defendant's company 

were admissible under Rule 801(d)(2)(C) because "[v]iewing the 

other evidence in the light most favorable to the plaintiff, . . 

. [the defendant] authorized . . . [the third party] to act as 

the Company's broker and contact . . . potential buyers."), cert. 

denied, 474 U.S. 1057, 106 S.Ct. 797 (1986). Thus, in 13 of the 

17 incoming radiotelegrams in evidence, all components of the 

statements by the sender to the coastal station operator, namely 

the messages, the "statements" regarding the point of origin and 

destination of each radiotelegram, and the "statements" regarding 

the date on which each radiotelegram was sent, were admissible. 

 The second set of "statements" reflected in the 

incoming radiotelegrams consists of the statements made by the 

coastal operators to the Khian Sea. In the 12 radiotelegrams in 

evidence sent by Reilly and the radiotelegram in evidence sent by 

Berbillis, the statements by the coastal operators to the Khian
38 

Sea also were admissible pursuant to Rule 801(d)(2)(C) because 

they were "statement[s] by a person [the coastal operators] 

authorized by . . . [Reilly, either directly or indirectly 

through Berbillis] to make a statement concerning the subject" of 

the radiotelegram. Fed. R. Evid. 801(d)(2)(C). 

 For the same reason, the third "statement" reflected in 

the 12 radiotelegrams sent by Reilly and the one from Berbillis, 

Carcamo's documenting of the radiotelegrams, does not constitute 

hearsay. Id.

0 Moreover, Carcamo's documenting of the incoming 

radiotelegrams also would be admissible under Rule 803(6), the 

exception for records of regularly conducted business. See U.S. 

br. at 33. This exception authorizes the admission of: 

[a] memoranda, report, record, or data 

compilation, in any form, of acts, events, 

conditions, opinions, or diagnoses, made at 

or near the time by, or from information 

transmitted by, a person with knowledge, if 

kept in the course of a regularly conducted 

business activity, and if it was the regular 

practice of that business activity to make 

the memoranda, report, record, or data 

compilation, all as shown by the testimony of 

the custodian or other qualified witness, 

unless the source of information or the 

method or circumstances of preparation 

indicate lack of trustworthiness. 

 

0The dissent contends that there is no proof that Reilly 

authorized coastal station operators to transmit the 

radiotelegrams or authorized Carcamo to decode and document the 

radiotelegrams. See dissent typescript at 13-14. In our 

opinion, Fuentes's testimony, Reilly's admission that he 

communicated with the Khian Sea by radiotelegram, Clare Dobbins's 

testimony that she witnessed Reilly receive radiotelegrams from 

the Khian Sea, and the plethora of other circumstantial evidence 

linking Reilly to the radiotelegrams more than suffice to 

establish that Reilly authorized the coastal station operators 

and Carcamo to play their respective roles in the transmission of 

the radiotelegrams. 
39 

Carcamo was a witness "qualified" to lay the foundation required 

by Rule 803(6) for the admission of the radiotelegrams because as 

the radio operator for the Khian Sea, he was responsible for 

creating and storing them, and had "the ability to attest to the 

foundational requirements of Rule 803(6)." Console, 13 F.3d at 

657. 

The foundation requirements to which a 

qualified witness must attest are: '(1) 

[that] the declarant in the records had 

knowledge to make accurate statements; (2) 

that the declarant recorded statements 

contemporaneously with the actions which were 

the subject of the reports; (3) that the 

declarant made the record in the regular 

course of the business activity; and (4) that 

such records were regularly kept by the 

business.' 

Id. at 657 (quoting United States v. Furst, 886 F.2d 558, 571 (3d 

Cir. 1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878 (1990)). 

 Carcamo testified to the four foundation requirements 

of the business records exception by testifying that: he was the 

radio operator for the Khian Sea during the relevant period of 

time, see R. app. at 863; that he was responsible for contacting 

the coastal stations to receive and transmit radiotelegrams for 

the ship and for keeping records of all communications to and 

from the ship, id. at 863-64; that the coastal stations 

transmitted messages to the ship in Morse code, id. at 866-67; 
40 

that he had years of experience as a radio operator and was 

trained in Morse code, id. at 867-68; and that he decoded the 

Morse code signals, and documented the messages as soon as he 

received them, id., and then delivered the written messages to 

Fuentes, id. at 867. Carcamo also kept a file of the incoming 

and outgoing messages. Id. at 863, 869. Carcamo's testimony 

"satisfied the foundation requirements of Rule 803(6) because it 

'demonstrate[d] that the records . . . [of the radiotelegrams] 

were made contemporaneously with the act the documents 

purport[ed] to record by someone with knowledge of the subject 

matter, that they were made in the regular course of business, 

and that such records were regularly kept by the business.'" 

Console, 13 F.3d at 657 (quoting United States v. Pelullo, 964 

F.2d at 201). Moreover, Fuentes's testimony corroborated 

Carcamo's testimony regarding his responsibilities for 

documenting and storing incoming and outgoing radiotelegrams, and 

the procedures employed for transmitting and receiving the 

radiotelegrams. See R. app. at 653-55, 668-69. 

 As we have noted, the 12 radiotelegrams originating in 

Annapolis incorporate messages provided originally by Reilly and 

the radiotelegram from Berbillis incorporates a message which 

Reilly authorized Berbillis to send. Moreover, all 13 of these 

radiotelegrams incorporate the Morse code transmissions by 

coastal station operators. Under Rule 803(6), any statement 

incorporated into a business record must be verified by the party 

recording the statement, made by a party under "a duty to 

report," or admissible pursuant to another exception to the 
41 

hearsay rule. See Graham, Federal Practice and Procedure: 

Federal Rules of Evidence § 6757, at 641-43; Console, 13 F.3d at 

657-58; Fed. R. Evid. 805. As we have indicated, the statements 

by Reilly were admissible under Rule 801(d)(2)(A), and the 

statements by Berbillis and the coastal station operators were 

admissible under Rule 801(d)(2)(C). 

 Thus, the district court did not err in admitting the 

12 incoming radiotelegrams sent by Reilly or the radiotelegram 

sent by Berbillis, as each of the three "statements" reflected in 

these radiotelegrams was not hearsay or was admissible under an 

exception to the hearsay rule. Although the district court may 

have erred in admitting the other four incoming radiotelegrams 

into evidence, see R. App. at 1201, 1202, 1226, 1228, as we 

indicated above, such an error would be harmless. 

 Moreover, the district court also did not err by 

admitting the 18 outgoing radiotelegrams into evidence. The 

outgoing radiotelegrams consist of two "statements": (1) 

Fuentes's statement to Carcamo, and (2) Carcamo's documenting of 

the statement. Fuentes's statements were admissible pursuant to 

Rule 801(d)(1) which provides that a statement is not hearsay if 

[t]he declarant testifies . . . and is 

subject to cross-examination concerning the 

statement, and the statement is . . . (B) 

consistent with his testimony and is offered 

to rebut an express or implied charge against 

the declarant of recent fabrication or 

improper influence or motive. 

As the government points out, the defendants suggested to the 

jury that Fuentes had ulterior motives for cooperating with the 

government and was fabricating testimony to protect himself. See
42 

U.S. app. at 82-90A. Thus, Fuentes's statements in the 

radiotelegrams were admissible to rebut these suggestions. 

 The second "statement" reflected in the outgoing 

radiotelegrams, Carcamo's documenting of Fuentes's statements, 

was admissible pursuant to Rule 803(6). As we discussed above, 

Carcamo testified to the four foundation requirements of Rule 

803(6). Specifically with regard to the outgoing radiotelegrams, 

Carcamo testified that he typed copies of the handwritten 

messages Fuentes asked him to send, and then sent a copy to Sait 

Electronics and retained one for the ship's records. See R. app. 

at 866. Again, Fuentes's testimony corroborated Caracamo's. Id. 

at 653-55. 

 Thus, neither the 13 incoming radiotelegrams which the 

evidence links to Reilly nor the 18 outgoing radiotelegrams 

constituted inadmissible hearsay, and the admission of the four 

incoming radiotelegrams not linked to Reilly was harmless. 

 C. Were the questions posed to Reilly too ambiguous to

 allow his response to form the basis of a false 

declarations conviction?

 At the contempt hearing held on December 15, 1988, in 

the Eastern District of Pennsylvania, Reilly was asked, under 

oath, whether he had "any knowledge . . . as to what happened to 

the incinerator residue" on board the Khian Sea, or "any 

knowledge as to the means by which it might be ascertained what 

happened to the residue." See U.S. app. at 275. Reilly 

responded "[n]o, sir" to both questions. Id. 
43 

 In January 1990, Reilly voluntarily appeared before a 

federal grand jury for the District of Delaware that was 

investigating potential ocean dumping violations in connection 

with the activities of the Khian Sea between September 1986 and 

December 1988. Id. at 285-403. Reilly was informed that the 

grand jury was investigating the disposal of ash from the Khian

Sea and was advised of his right to leave and seek legal counsel. 

See U.S. app. at 288. He then testified that he had not directed 

anyone to remove the ash from the ship, id. at 377-78, and that 

he had no knowledge of what happened to the ash, id. at 380-81. 

 On the basis of this testimony, Reilly was indicted in 

two counts for knowingly making false material declarations. 18 

U.S.C. § 1623(a). Prior to trial, Reilly challenged the Delaware 

indictment alleging that the questions he was asked before the 

grand jury were too vague and ambiguous to support a conviction 

under section 1623(a). The district court rejected this 

argument. See United States v. Reilly, 811 F. Supp. at 180. 

However, Reilly now contends that both questions asked before the 

Delaware grand jury and questions posed at the contempt hearing 

held in the Eastern District of Pennsylvania were too vague and 

ambiguous to support his false declarations convictions. See R. 

br. at 49-56. We disagree. 

 First, Reilly claims that the following question posed 

before the grand jury was too vague and ambiguous: "What happened 

to the ash?". According to Reilly, "[t]here was nothing about 

the context within which 'What happened to the ash?' was asked 

that signified that the questioner did not care where, in any 
44 

specific sense, the ash was off-loaded, but instead was concerned 

only with whether it was disposed of somewhere -- anywhere -- in 

the ocean." Id. at 52. We reject Reilly's suggestion that 

because he thought he was being asked exactly "[w]here in the 

ocean" the ash was off-loaded he was not testifying falsely by 

stating that he did not know what happened to the ash. There is 

no doubt that the question "[w]hat happened to the ash?" was 

sufficiently precise to support Reilly's false declaration 

conviction. A person who knows that the ash was dumped in the 

ocean knows what happened to the ash. The grand jury, after all, 

did not ask him where it was dumped. Moreover, we reject 

Reilly's argument that the grand jury's question, "[d]id you 

direct anyone to take anything off that ship after it left 

Yugoslavia?", see U.S. app. at 377-78, was vague due to the use 

of the term "direct" and the placement of the modifier "after it 

left Yugoslavia." 

 We also find that the questions posed in the district 

court contempt proceeding regarding Reilly's "knowledge" were 

sufficiently precise. Reilly was asked: "[d]o you have any 

knowledge . . . as to what happened to the incinerator residue on 

board the vessel?" and "[d]o you have any knowledge as to the 

means by which it might be ascertained what happened to the 

residue on board the vessel?". See id. at 237. We do not 

believe that in the context of the questions, the term 

"'knowledge,' without further definition, is inherently 

ambiguous." See R. br. at 54 (citing United States v. Cook, 497 

F.2d 753, 764 & n.4 (9th Cir. 1972) (dissenting opinion), 
45 

majority opinion withdrawn and dissenting opinion reinstated on 

rehearing as majority position in relevant part, 489 F.2d 286 

(9th Cir. 1973)). 

 Reilly cites Bronston v. United States, 409 U.S. 352, 

361-62, 93 S.Ct. 595, 601-02 (1973), in support of his argument 

that the questions underlying his false declaration convictions 

were excessively vague. However, Bronston is distinguishable 

because, as we noted in United States v. Slawik, 548 F.2d 75, 86 

(3d Cir. 1977), "Bronston involved literally true but misleading 

answers." In Bronston, 409 U.S. at 361-62, 93 S.Ct. at 601-02, 

the Supreme Court held that the perjury statute, 18 U.S.C. §1621, 

does not apply to statements that are literally true, even if 

these statements create an implication which is false. The 

Supreme Court's reasoning in Bronston applies equally to the 

false declarations statute, section 1623. See Slawik, 548 F.2d 

at 83 (To violate 18 U.S.C. § 1623, testimony must be "both false 

and material. If literally true, there was no offense, even if . 

. . [the defendant's] answer was deliberately misleading.") 

(citing Bronston, 409 U.S. 352, 93 S.Ct. 595 (1973)). However, 

this case bears no resemblance to Bronston. 

 Bronston involved a perjury prosecution arising from a 

bankruptcy hearing at which one of the defendant's creditors 

asked him whether he had ever had a Swiss bank account, and the 

defendant responded by stating that his company once had a Swiss 

bank account for six months. Id. at 354, 93 S.Ct. at 598. Though 

the defendant's answer was unresponsive and created the false 

implication that he had never had a Swiss bank account, his 
46 

literal statement regarding his company's Swiss bank account was 

true. Id. Therefore, the Supreme Court concluded that he could 

not be convicted of perjury as Congress did not intend to 

criminalize "answers unresponsive on their face but untrue only 

by 'negative implication.'" Id. at 361, 93 S.Ct. at 601. 

 We cannot classify Reilly's responses in the district 

court or to the grand jury as "literally true." Moreover, we 

have "eschew[ed] a broad reading of Bronston," id., and held that 

[a]s a general rule, the fact that there is some ambiguity in a 

falsely answered question will not shield the respondent from a 

perjury or false statements prosecution. . . . Normally, it is 

for the petit jury to decide which construction the defendant 

placed on the question. . . . It is difficult to define the 

point at which a question becomes so ambiguous that it is not 

amenable to jury interpretation. We have stated that the point 

is reached 'when it [is] entirely unreasonable to expect that the 

defendant understood the question posed to him.' Slawik, 548 F.2d 

at 86. Other courts have said that '[a] question is 

fundamentally ambiguous when it "is not a phrase with a meaning 

about which men of ordinary intellect could agree, nor one which 

could be used with mutual understanding by a questioner and 

answerer unless it were defined at the time it were sought and 

offered as testimony."' 

United States v. Ryan, 828 F.2d 1010, 1015 (3d Cir. 1987) 

(quoting United States v. Lighte, 782 F.2d 367, 375 (2d Cir. 

1986)) (some internal citations omitted). Under either 

construction of the Bronston standard for ambiguity, it is clear 

that the questions posed to Reilly were not so ambiguous that 

they were no longer amenable to jury interpretation. 

 D. Did Reilly's false declarations 

indictment adequately allege the falsity 

of Reilly's responses to the grand jury 

and the district court?

 Reilly argues that the indictments on which his false 

declaration convictions were based were defective because they 
47 

failed to allege adequately the falsity of his responses to the 

district court and the grand jury. See R. br. at 56-60. We have 

held that "a conviction under 18 U.S.C. § 1623 may not stand 

where the indictment fails to set forth the precise falsehood 

alleged and the factual basis of its falsity with sufficient 

clarity to permit a jury to determine its verity and to allow 

meaningful judicial review of the materiality of those 

falsehoods." Slawik, 548 F.2d at 83. It is undisputed that the 

Delaware indictment alleged that Reilly's responses to the grand 

jury were false because he knew the ash on board the Khian Sea

had been dumped into the water in and around the Indian Ocean. 

See R. br. at 57-58. On this basis, the district court held that 

the Delaware indictment adequately alleged the falsity of 

Reilly's statements. Reilly, 811 F. Supp. at 179. The 

Pennsylvania indictment alleged that Reilly's responses to the 

district court were false because he knew the ash on board the 

Khian Sea had been dumped into the water in and around the 

Atlantic Ocean and Indian Ocean. We conclude that both the 

Delaware indictment and the Pennsylvania indictment adequately 

alleged the falsity of Reilly's statements. See R. br. at 57-58. 

 Reilly analogizes this case to United States v. 

Tonelli, 577 F.2d 194, 198 (3d Cir. 1978), in which we held that 

a false declarations indictment is defective when it "fails to 

specify in what particular the defendant's reply was false." 

However, Tonelli is distinguishable. In Tonelli, the indictment 

alleged that the defendant made a false declaration when he 

denied having participated in placing certain pension fund monies 
48 

in certificates of deposit. Tonelli, 577 F.2d at 197. Although 

the "defendant's initial denial of involvement, standing alone, 

was not true, . . . when the prosecutor subsequently defined 

'participation in the placement of . . . monies . . . for the 

purchase' as including a recommendation [to use a particular 

bank, the defendant] . . . answered truthfully." Id. at 198. 

Thus, at least one of the defendant's responses to the question 

was "literally true." Moreover, the indictment quoted only the 

first, more general question, "ignoring the qualifying 

definitions [subsequently] used by the prosecutor," and therefore 

it was "misleading." Id. 

 By identifying Reilly's responses that he had no idea 

what happened to the ash or how it might be ascertained what 

happened to the ash and alleging that Reilly knew the ash had 

been dumped into the ocean, the indictments in this case, unlike 

the indictment in Tonelli, "set forth the precise falsehood[s] 

alleged and the factual basis of . . . [their] falsity with 

sufficient clarity to permit a jury to determine . . . [their] 

verity and to allow meaningful judicial review of the materiality 

of those falsehoods." Slawik, 548 F.2d at 83. The indictment 

also alleged that Reilly responded falsely when he denied having 

directed the dumping of the ash from the Khian Sea, and as the 

government concedes, "there was no specific averment in the . . . 

Wilmington indictment that Reilly had in fact directed the 

dumping." See U.S. br. at 49. However, unlike the questions in 

Tonelli, the grand jury's question regarding whether Reilly 

directed the dumping of ash was quite precise and was not 
49 

excerpted in the indictment in a misleading manner. Moreover, we 

see no evidence that Reilly's response to this question or any of 

the other related questions was "literally true." Thus, in the 

circumstances, the indictment in this case, unlike the indictment 

in Tonelli, adequately specified "in what particular the 

defendant's reply was false." Tonelli, 577 F.2d at 198. 

 E. Was the question posed to Dowd too ambiguous to 

allow his response to form the basis of a false 

declarations conviction?

 Dowd appeared before a federal grand jury for the 

District of Delaware on February 14, 1990. See U.S. app. at 405-

95. Based on his testimony before the grand jury, Dowd was 

charged with one count of knowingly making a false declaration 

under oath. While this count alleged that Dowd knowingly made 

three false declarations before the grand jury, the district 

court instructed the jury that a conviction required proof beyond 

a reasonable doubt that Dowd knowingly made only one false 

declaration. See U.S. app. at 231. The indictment listed the 

following three questions and allegedly false declarations: 

 A GRAND JUROR: Do you know what 

happened to the ash? 

 THE WITNESS: No. 

 A GRAND JUROR: You have no idea? 

 THE WITNESS: No, I don't. I honestly 

have not been on that ship for two and a half 

years. 

 . . . 

 

 A GRAND JUROR: . . . [y]ou didn't ask 

where it went? You didn't want to know where 

it went? 

 THE WITNESS: No, I didn't ask, and I 

don't know. All right? Nor did he tell me. 
50 

See D. app. at 212-13. 

 The jury's answers to special interrogatories indicate 

that it found Dowd guilty only of making a knowingly false 

declaration in response to the question "You have no idea?" See

U.S. app. at 234-35. The jury did not return a verdict with 

respect to Dowd's response to the question "[d]o you know what 

happened to the ash?" and found Dowd "not guilty" of violating 18 

U.S.C. § 1623(a) based on his response to the question "[y]ou 

didn't ask where it went? You didn't want to know where it 

went?". Like Reilly, Dowd asserts that his statement was made in 

response to a question that was too ambiguous to support his 

conviction for making a false declaration. The district court 

rejected this argument and so do we. See Reilly, 811 F. Supp. at 

181. 

 As the government argues, viewed in context, the 

question posed to Dowd was "you have no idea [what happened to 

the ash]?" See U.S. br. at 51. Dowd concedes that the question 

"could reasonably be interpreted simply as a restatement of the 

preceding question," and that "[u]nder this interpretation, the 

question essentially asked . . . '[a]re you certain you do not 

know what happened to the ash?" See D. br. at 19. However, Dowd 

contends that the question also could be construed to call for 

"intelligent speculation," id. at 22, that the jury's responses 

to the special interrogatories confirm that this was the 

construction it adopted, id. at 20. He further argues that a 

"jury is not free to attempt to decipher which of two meanings to 
51 

accept," id. at 21 (citing United States v. Manapat, 928 F.2d 

1097, 1101 (11th Cir. 1991)). 

 We conclude that the question was not "fundamentally 

ambiguous." First, a jury is generally free to determine the 

meaning the defendant ascribed to a question. As we noted above, 

when there is "some ambiguity[,] . . . [n]ormally, it is for the 

petit jury to decide which construction the defendant placed on 

the question." United States v. Ryan, 828 F.2d at 1015. The 

question posed to Dowd, like those posed to Reilly, "is not so 

ambiguous that it is not amenable to jury interpretation" because 

it is reasonable "'to expect that the defendant understood the 

question.'" Id. (quoting Slawik, 548 F.2d at 86). The 

prosecutor expressly instructed Dowd that the questions were 

intended to determine what he knew, and that if he didn't know 

something, he should "just say . . . [I] don't know." See U.S. 

app. at 439; see also id. at 446 ("[i]f you don't know something, 

tell us you don't know"). Moreover, Dowd's responses indicate 

that he was aware that he should respond based on his own 

knowledge, and that he should define his own "knowledge" to 

include information obtained from speaking to others.0 See e.g., 

id. at 453 ("[t]o my knowledge, no"), 478-80 ("A. . . . The 

repair work done in Singapore, in Yugoslavia, wasn't complete 

 

0The dissent contends that the question "You have no idea?" was 

"fatally ambiguous" because it "is so fundamentally ambiguous 

that it would be entirely unreasonable to expect that [Dowd] 

understood it." Dissent typescript at 23. As we stated above, 

we conclude that the question posed to Dowd was not "fatally 

ambiguous" because it is reasonable "'to expect that the 

defendant understood the question.'" United States v. Ryan, 828 

F.2d at 1015 (citation omitted). 
52 

because the vessel could not complete its survey . . . [b]ecause 

there was ash in the cargo. . . . A GRAND JUROR: Did you just 

say when the ship got to Yugoslavia it still had the ash on it? 

THE WITNESS: I wasn't there. I was told that. Okay. Yes."). 

 Second, Dowd's reliance on the jury's responses to the 

special interrogatories is inappropriate. The jury's responses 

to the special interrogatories are immaterial to our inquiry 

because the jury was not required to make a finding regarding 

more than one of Dowd's three allegedly false responses, and it 

did not make a finding regarding Dowd's response to the first of 

the three questions identified in the false statements count. 

Moreover, as we pointed out in United States v. Vastola, 899 F.2d 

211, 225 (3d Cir.), cert. granted and judgment vacated on other 

grounds, 497 U.S. 1001, 110 S.Ct. 3233 (1990), principles of 

estoppel do not require the verdict rendered at a single trial to 

be consistent. Thus, we conclude that the question on which 

Dowd's conviction rests was not too ambiguous to support it. 

 

 F. Was Dowd's response "material"?

 Dowd argues that his conviction under the false 

declarations statute, 18 U.S.C. § 1623, should be reversed 

because the government failed to establish that his testimony was 

"material" to the grand jury's investigation. We agree with the 

district court's conclusion that this argument lacks merit. See

Reilly, 811 F. Supp. at 180-81. Section 1623 provides in 

relevant part that 
53 

 (a) [w]hoever under oath . . . in any 

proceeding before or ancillary to any court 

or grand jury of the United States knowingly 

makes any false material declaration or makes 

or uses any other information, including any 

book, paper, document, record, recording, or 

other material, knowing the same to contain 

any false material declaration, shall be 

fined not more than $ 10,000 or imprisoned 

not more than five years or both. 

Thus, "under the false declarations statute, 18 U.S.C. § 1623, 

materiality is an essential element of the offense and a question 

of law reserved for decision by the court." United States v. 

Crocker, 568 F.2d 1049, 1056 (3d Cir. 1977) (citing Slawik, 548 

F.2d at 75, 83). "It is well established that a perjurious 

statement is material . . . if it has a tendency to influence, 

impede, or hamper the grand jury from pursuing its 

investigation." United States v. Lardieri, 497 F.2d 317, 319 (3d 

Cir. 1974), on rehearing, 506 F.2d 319 (3d Cir. 1974). Moreover, 

"leads to additional facts may be material even though they do 

not directly reflect on the ultimate issue being investigated." 

497 F.2d at 319.0 We apply a plenary standard of review to 

 

0See also Crocker, 568 F.2d at 1057 ("it suffices to establish 

that testimony . . ., if false, [would] tend to impede an 

investigation"); United States v. Phillips, 674 F. Supp. 1144, 

1148 (E.D. Pa. 1987) ("A question asked of a grand jury witness 

is material if it 'is such that a truthful answer could help the 

inquiry, or a false response hinder it, and these effects are 

weighed in terms of potentiality rather than probability. . . . 

It is of no consequence that the information sought would be 

merely cumulative, that the response was believed by the grand 

jury to be perjurious at the time it was uttered, or that the 

matters inquired into were collateral to the principal objective 

of the grand jury.'") (emphasis in original) (quoting United 

States v. Berardi, 629 F.2d 723, 728 (2d Cir.), cert. denied, 449 

U.S. 995, 101 S.Ct. 534 (1980)); United States v. Schiavo, 375 F. 

Supp. 475, 477 (E.D. Pa.) ("False testimony is material if it has 

a natural tendency to influence the grand jury in its 

investigation, and there is no need to prove the perjured 
54 

determine whether Dowd's testimony was material as a matter of 

law. Slawik, 548 F.2d at 83. 

 According to Dowd, the government failed to satisfy the 

materiality requirement because the question posed to Dowd could 

be construed in one of two ways: (1) as a restatement of the 

previous question calling for knowledge that was material to the 

grand jury's investigation or (2) as a distinct question calling 

for intelligent speculation, which was not material to the grand 

jury's investigation. See D. br. at 24-27. Dowd analogizes this 

case to Slawik, and argues that Slawik requires us to hold that 

the government failed to satisfy the materiality requirement. 

However, this case is distinguishable from Slawik. 

 In Slawik, the defendant testified that he had given 

the following advice to an associate subpoenaed to testify before 

a grand jury: 

Look Barney [sic] you will probably only be 

there a day. Get yourself legal counsel, 

tell them the truth. They are not going to 

hold you. You can go back to Florida. 

Slawik, 548 F.2d at 82. The court held that the defendant's 

conviction under section 1623 must be reversed because "[n]either 

the indictment nor the bill of particulars set[] forth the grand 

jury's understanding of . . . [the underlined] words," and thus 

the court could not determine "whether the trial jury found that 

 

testimony actually impeded the jury's work. The false testimony 

need not be directed to the primary subject of the investigation, 

it is material if it is relevant to any subsidiary issue under 

consideration by the tribunal.") (citing United States v. Lococo, 

450 F.2d 1196, 1199 (9th Cir. 1971), cert. denied, 406 U.S. 945, 

92 S.Ct. 2040 (1972)), aff'd, 506 F.2d 1053 (3d Cir. 1974) 

(table). 
55 

. . . [the defendant] had failed actually to advise . . . [his 

associate]: (1) to tell counsel the truth, or (2) to tell the 

grand jury the truth." Id. at 83. Only the latter construction 

would have rendered the alleged falsehood "material," and "the 

imprecision of the allegations contained in the indictment and 

bill of particulars render[ed] meaningful review of materiality 

impossible." Id. 

 This case is distinguishable from Slawik because the 

indictment here set forth the meaning of Dowd's responses by 

specifying that Dowd's responses "were false in that . . . [he,] 

then and there well knew that the incinerator ash on board the 

Khian Sea had been discharged, disposed of and off loaded from 

the Khian Sea by dumping the incinerator ash into the water in 

and around the Indian Ocean." See D. app. at 31. Thus, the 

indictment did not permit the construction of the question "[y]ou 

have no idea [what happened to the ash]?" as a question that 

called for "intelligent speculation." Instead, the indictment 

indicated that the question was merely a restatement of the 

previous question regarding Dowd's "knowledge" of "what happened 

to the ash," and, as Dowd concedes, this question and Dowd's 

response to it were material to the grand jury's investigation. 

 G. Did the evidence support Dowd's false declaration 

conviction?

 Dowd also argues that if we construe the question 

"[y]ou have no idea?" to mean "are you certain you do not know 

what happened to the ash?", his conviction cannot stand because 
56 

there was insufficient evidence indicating that he "actually knew 

'what happened to the ash.'" See D. br. at 28. Thus, Dowd 

claims that there was insufficient evidence of the falsity of his 

statement to sustain his conviction under 18 U.S.C. § 1623. 

According to Dowd, Fuentes's testimony regarding whether he 

discussed the disposal of the ash with Dowd was selfcontradictory. Id. at 29-31. Dowd also argues that Fuentes's 

testimony regarding Dowd's instructions to tell inquiring 

journalists that the ash had been left in a country whose 

identity could not be revealed and to create a false log of the 

route taken by the Khian Sea does not prove that Dowd knew the 

ash had been dumped in the ocean. Id. at 31-34. 

 "We review challenges to the sufficiency of the 

evidence presented at trial by ascertaining whether, viewing the 

evidence in the light most favorable to the government, a 

reasonable mind could find the defendant guilty beyond a 

reasonable doubt of every element of the offense." United States 

v. Terselich, 885 F.2d 1094, 1097 (3d Cir. 1989). Here we 

conclude, viewing the evidence in the light most favorable to the 

government, that a jury could have found beyond a reasonable 

doubt that Dowd's statement that he had no idea what happened to 

the ash was false. 

 We base our holding on several grounds. First, 

Fuentes's testimony was not inherently self-contradictory. He 

testified on direct that he asked Dowd "what would be happening 

now that we have dumped the ash to the ocean and if the 

journalist will be still making questions around the cargo." See
57 

D. app. at 320. He then reiterated during his cross-examination 

that when Dowd boarded the ship in Singapore, "I asked him, 

[n]ow, what we will do, what we will do now that we have dumped 

the ash in the ocean?". See U.S. app. at 95. It is true that 

Fuentes admitted having told a private investigator that he did 

not "tell . . . [Dowd] straight that, hey, we did . . . [the 

dumping] because he already knew." See D. app. at 334. However, 

as the government points out, the jury reasonably could have 

found that Fuentes's earlier statement was not in conflict with 

his trial testimony because "Fuentes mentioned the dumping to 

Dowd only as a predicate for obtaining instructions about what to 

tell the press. This may have been what Fuentes meant when he 

told the investigator that he had not told Dowd 'straight' about 

the dumping." See U.S. br. at 58-59. Moreover, Fuentes 

clarified what he had said to the private investigator about his 

conversation with Dowd by stating "[w]e [he and Dowd] discuss it, 

we talk about it, but I did not make the straight question." See

D. app. at 334. Thus, we cannot conclude that as a matter of 

law, Fuentes's testimony was self-contradictory or that he 

retracted his earlier testimony about having discussed the 

dumping with Dowd. 

 Second, Fuentes's other testimony regarding Dowd 

supported the jury's finding that Dowd knew about the dumping. We 

conclude that, viewed in the light most favorable to the 

government, Fuentes's testimony that Dowd boarded the ship in 

Singapore to "pickup the gear that we had been using to discharge 

the ship," id. at 319-20, and instructed him to tell journalists 
58 

that the ash had been discharged in an unidentified country 

pursuant to an agreement, see U.S. app. at 95, D. app. at 320, 

and to create a false logbook documenting "another route other 

than the one we have been," see id. at 324-25, is sufficient to 

support the jury's finding that Dowd knew the ash had been dumped 

in the ocean. 

 Finally, there was evidence indicating that, as 

president of Coastal Carriers, Dowd played an active role in the 

affairs of the Khian Sea from the moment the ash was loaded, and 

this evidence also supports the conclusion that Dowd knew about 

the dumping. Dowd was present when the ash was first loaded onto 

the Khian Sea, see U.S. app. at 124, knew some of it was 

off-loaded in Haiti, id. at 125, searched for possible sites to 

discharge the remaining ash, id. at 118-19, met the ship in 

Singapore where it was to be reclassified inasmuch as its holds 

no longer contained any ash, and communicated with Reilly from 

Singapore, id. at 126. Overall, the evidence of the falsity of 

Dowd's statement that he had "no idea" what happened to the ash 

is more than sufficient to sustain his conviction under 18 U.S.C. 

§ 1623. 

 H. Did the prosecutor improperly offer his opinion and 

 unsworn testimony during his closing argument?

 Dowd and Reilly argue that the prosecutor prejudiced 

them in his closing argument by referring to their testimony as 

"lies," and by misstating the record in several respects. See D. 

br. at 34-37; R. br. at 60-69. Dowd and Reilly unsuccessfully 
59 

raised their arguments regarding the impropriety of the 

prosecutor's closing argument in motions for new trials. See D. 

app. at 42-43. Like the district court, we reject their 

arguments. 

 While it is true that the prosecutor referred to Dowd's 

and Reilly's testimony as "lies," in making this characterization 

he was not guilty of misconduct because he merely was making a 

"fair comment on the evidence adduced at trial." United States 

v. Pungitore, 910 F.2d 1084, 1127 (3d Cir. 1990), cert. denied, 

111 S.Ct. 2009 (1991). Thus, although such a comment may in some 

instances be an inflammatory expression of a prosecutor's 

personal belief and require reversal, here it does not. 

Furthermore, the prosecutor's characterization of Dowd's and 

Reilly's testimony as lies referred to their statements at the 

grand jury and contempt proceedings, and when a prosecutor 

contends that a defendant in a false declaration case lied in the 

underlying proceedings, he merely is arguing that the evidence 

supports a verdict of guilty. 

 Dowd and Reilly also claim that the prosecutor made 

other improper statements during his closing argument. According 

to Dowd, the prosecutor's "most devastating" misstatement of the 

record was his assertion that Dowd played a role in ordering 

Fuentes to destroy the radiotelegrams. D. br. at 35. However, 

Dowd did not object to this statement at trial and therefore "we 

may review only for plain error." Pungitore, 910 F.2d at 1125-

26. As we discussed above, there was substantial evidence 

indicating that Dowd knew about the dumping of the ash into the 
60 

ocean, and Fuentes testified that Dowd instructed him to falsify 

the ship's logs. Although Fuentes testified that Reilly ordered 

him to destroy the radiotelegrams, see D. app. at 327, 348, he 

also testified that "[t]he owners didn't want them on board. . . 

. They didn't want them on board," see U.S. app. at 97 (emphasis 

added). Moreover, the evidence indicates that Dowd and Reilly 

were in contact while Dowd was in Singapore. Thus, there was a 

basis for the inference that Dowd participated in the decision to 

have Fuentes destroy the radiotelegrams. In any event, even if 

the statement should not have been made, we see no basis to 

conclude that it gives rise to a supportable claim of "plain 

error" in light of the record as a whole. We also point out that 

the district court's instruction to the jury to rely on their 

recollection of the facts and not counsel's statements and 

arguments cured any possible prejudice resulting from the 

comment. In fact, the prosecutor said the same thing to the jury 

in his summation. Accordingly, we conclude that we should not 

reverse by reason of the prosecutor's statement that Dowd and 

Reilly ordered Fuentes to destroy the radiotelegrams. 

 Dowd and Reilly argue that the prosecutor misstated the 

evidence by suggesting that they personally had destroyed 

documents. Specifically, they challenge the prosecutor's 

contention that they destroyed their copies of radiotelegrams 

associated with the Khian Sea. See D. app. at 475. However, 

this contention was supported by evidence, including a letter 

from Coastal Carriers to the grand jury stating that "no radio 

logs or other logs" were in Coastal Carriers's possession, see R. 
61 

app. at 1264, and Fuente's testimony regarding the instructions 

he received to falsify the ship's log and destroy the 

radiotelegrams. Thus, the prosecutor merely was drawing an 

inference from certain pieces of evidence in the record. 

 Reilly also argues that the prosecutor "testified" 

based on non-record evidence by using the pronoun "we" when 

discussing Reilly's allegedly false testimony, by referring to 

Amalgamated and MASCO as "shells" for Reilly and Dowd, and by 

stating that the defendants had not called any witnesses from the 

radio transmitting companies because the radiotelegrams were 

"accurate." R. br. at 63-65. Reilly cites United States v. 

DiLoreto, 888 F.2d 996, 999 (3d Cir. 1989), for the proposition 

that these remarks "require reversal per se." In DiLoreto, we 

held that "a prosecutor's remarks regarding the defendant's guilt 

or a witness' credibility, if based on information not adduced at 

trial, require reversal per se." Id. at 999. We conclude that 

DiLoreto does not require reversal per se in this case. 

 The prosecutor used the pronoun "we" when arguing that 

the questions posed to the defendants were clear. He stated, 

[y]ou know what those words meant because 

they are words that are used in ordinary 

conversation. . . . Everybody knew what we 

were talking about. Everybody knew what they 

were talking about in that hearing in 

Philadelphia. They were talking about the 

ash on board the Khian Sea. 

See R. app. at 1105. The prosecutor who made this statement also 

presented the matter to the grand jury in Delaware when Reilly 

and Dowd testified. Prior to trial, they sought to disqualify 

the prosecutor, based in part on the contention that he would be 
62 

an unsworn witness at trial. The district court, however, 

refused to disqualify him, stating that it assumed the prosecutor 

would be "very careful in the presentation of the Government's 

case." United States v. Reilly, Crim. Nos. 92-53-JJF, 93-8-JJF, 

93-10-JJF, Memorandum Opinion at 9 (D. Del. May 7, 1993) (see R. 

app. at 109). Although the prosecutor's choice of words was 

unfortunate, the prosecutor's isolated use of the pronoun "we" 

did not constitute testimony based on evidence not adduced at 

trial. He did not say "we" or "I" knew what the defendant was 

talking about. He said "[e]verybody" knew what "we" were talking 

about. Consequently, the remark was merely an inference from 

evidence in the record, and thus does not require reversal per

se. See DiLoreto, 888 F.2d at 999; Government of Virgin Islands 

v. Joseph, 770 F.2d 343, 349 (3d Cir. 1985). Furthermore, 

reviewing the matter to determine if there was prejudice from the 

prosecutor's use of words, we conclude that "[u]nder the 

circumstances and in light of the strong evidence of guilt . . . 

, we believe . . . [the court's] instructions adequately cured 

any prejudice that may have arisen." Joseph, id. at 349. 

 Reilly also faults the prosecutor for referring to 

Amalgamated and MASCO as "shells" used by Reilly and Dowd to 

conceal their involvement with the dumping operation of the Khian

Sea, see R. app. at 1088, 1115-16. However, the record also 

supports this statement. As noted above, there is significant 

evidence indicating that Reilly sent radiotelegrams from 

Annapolis signed "AMALGAMATED" or "MASCO". Moreover, Cheryl 

Haye, a secretary for MASCO, testified that MASCO set up and 
63 

managed businesses, that she did not know of any MASCO office in 

Annapolis, id. at 525, that MASCO and Amalgamated shared the same 

post office box in the Bahamas, id. at 532, that there was no 

physical separation between Lily and MASCO inside the MASCO 

offices, id. at 527, that she signed a letter as president of 

Lily although she was actually a secretary for MASCO, id. at 534, 

and that she regularly would sign letters as president of 

corporations created by MASCO although she knew nothing about the 

companies, id. at 538-39. Clare Dobbins, a secretary in the 

Coastal Carriers office in Annapolis, testified that there was 

Lily letterhead in the Coastal Carriers office, see U.S. app. at 

21, and that the check books for Coastal Carriers, Amalgamated, 

and the Coastal Barge Corporation were kept in the Coastal 

Carriers office. Id. at 22. Thus, we agree with the 

government's contention that "[i]t was proper to argue, based on 

this evidence, that the jury . . . should disregard the form of 

these different corporations and look instead to the substance of 

who was doing what." See U.S. br. at 70. 

 Finally, Reilly argues that the prosecutor stated that 

the defendants had not called any witnesses from the radio 

transmitting companies because the radiotelegrams were 

"accurate," and that this statement requires reversal of Reilly's 

conviction because it was based on evidence outside the record. 

After the jury was excused, the defendants objected to this 

statement. See U.S. app. at 216-19. At this point, the district 

court suggested that the parties stipulate that the cable 

companies did not have the required information to verify the 
64 

accuracy of the radiotelegrams. Id. at 219-21. The parties 

agreed on the stipulation, and the district court read it to the 

jury, id. at 221, 224-25. The defendants did not raise any 

further objection or seek further clarification. Id. at 225. 

Therefore, "[i]nasmuch as appellants did not object to the 

curative instruction or request additional instructions, they 

apparently were satisfied with the district court's response and 

cannot now complain that [the prosecutor's] comments gave rise to 

reversible error." Pungitore, 910 F.2d at 1128. 

 I. Is the district court's refusal to grant Dowd a 

downward departure under the sentencing guidelines 

reviewable by this court, and if so, did the 

district court err in refusing to grant the 

departure?

 Dowd sought a downward departure from the sentence 

range calculated under the Sentencing Guidelines. Pursuant to 18 

U.S.C. § 3553(b), Dowd argued that the court should depart 

downward because in his case, "there exist[] . . . aggravating or 

mitigating circumstances of a kind, or to a degree, not 

adequately taken into consideration by the Sentencing 

Commission." Dowd argues that his false declarations prosecution 

was "atypical" because "he had nothing whatsoever to do with the 

underlying ocean dumping offense," and his "actual false 

statement itself is hopelessly technical in nature, arising as it 

does from the open-ended, ambiguous question 'You have no idea?'" 

See D. br. at 40. Dowd also argues that a downward departure was 

warranted because his conviction "may well result in the 

suspension and debarment from all future government contracts not 
65 

only of Dowd personally but also of the various businesses owned 

by his entire family." Id. at 41. 

 In United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 

1989), we held that "we have no jurisdiction to review a district 

court's discretionary decision not to depart from the 

Guidelines." United States v. Bierley, 922 F.2d 1061, 1066 (3d 

Cir. 1990) (citing United States v. Denardi, 892 F.2d at 272). 

"However, we recognized in Denardi that when the district court's 

decision not to depart is predicated on the legally erroneous 

impression that it did not have the authority to do so, we may 

review that decision." Bierley, 922 F.2d at 1066. We believe 

that the district court denied Dowd a downward departure because 

it concluded that the Guidelines did not authorize it to depart. 

See D. app. at 505-06. Thus, we have jurisdiction to review the 

district court's decision, and based on our review, we conclude 

that its decision was correct. 

 Even if it is true that Dowd "had nothing whatsoever to 

do with the underlying ocean dumping offense," this fact alone 

does not establish that Dowd's false statement "differs from the 

norm." See U.S. Sentencing Guidelines, Ch. 1, Pt. A, note 4(b), 

at 5-6 (1993). As the government points out, Application Note 3 

to Guidelines § 2J1.3 specifically addresses the situation where 

the defendant is convicted both for perjury and the "offense with 

respect to which he committed perjury," indicating that the 

Commission did not consider a conviction for perjury absent a 

conviction for an underlying offense to be "atypical." Further, 

we do not believe that his false statement was particularly 
66 

"technical in nature," or that it arose from an ambiguous 

question. 

 Finally, the district court was correct in concluding 

that the conviction's potentially harmful financial consequences 

for Dowd, his family, and their businesses did not justify a 

downward departure from the Guidelines. The Sentencing 

Commission's policy statement regarding the propriety of granting 

a downward departure based on a defendant's "vocational skills" 

is controlling, Guidelines § 5H1.2,0 and this policy statement 

indicates that a sentencing court only should grant a downward 

departure on this basis in "extraordinary circumstances." See

United States v. Sharapan, 13 F.3d 781, 784 (3d Cir. 1994). Our 

application of this policy statement in Sharapan led us to 

conclude that the district court erred in granting a downward 

departure based on its determination that the defendant's 

incarceration would cause his business to fail. Id. at 785-86. 

We based our conclusion on our determination that there was 

nothing extraordinary in the fact that the incarceration of a 

company's principal might "cause harm to the business and its 

employees," and that, even assuming that the business would fail 

as a result of the defendant's incarceration, there was "no basis 

for concluding that this failure would cause any extraordinary 

harm to society as a whole." Id. at 785. 

 

0In Williams v. United States, 112 S.Ct. 1112, 1119 (1992), the 

Court held that where "a policy statement prohibits a district 

court from taking a specified action, the statement is an 

authoritative guide to the meaning of the applicable guideline." 

See also United States v. Gaskill, 991 F.2d 82, 85 (3d Cir. 

1993). 
67 

 Dowd alleges that his sentence will harm both his 

business and that of his family members. Nevertheless, the 

Sentencing Commission's policy statement regarding downward 

departures based on a defendant's vocational skills is 

controlling because the "principle underlying . . . [this policy 

statement is] that a sentencing judge may grant a downward 

departure based on a defendant's ability to make a work-related 

contribution to society only in extraordinary circumstances," 

id., and it follows from this principle that a court may grant a 

downward departure based on a defendant's relatives' abilities to 

make work-related contributions to society only in extraordinary 

circumstances. It is unfortunate that Dowd's family may suffer 

both personally and financially due to his conviction. However, 

we see nothing extraordinary in the fact that Dowd's conviction 

may harm not only his business interests but also those of his 

family members, and we are not convinced that the effects of 

Dowd's sentence on these businesses "are of sufficient economic 

importance to society to justify a departure." Id.

0

III. Conclusion

 The judgments of conviction and sentence will be 

affirmed. 

 

0The Sentencing Commission's policy statement regarding the 

relevance of family ties and responsibilities to the granting of 

a downward departure also supports our decision. It provides 

that such factors are relevant only in "extraordinary" 

circumstances, Guidelines § 5H1.6, as "'[d]isruptions of the 

defendant's life, and the concomitant difficulties for those who 

depend on the defendant, are inherent in the punishment of 

incarceration.'" United States v. Gaskill, 991 F.2d 82, 84-85 

(3d Cir. 1993) (quoting United States v. Johnson, 964 F.2d 124, 

128 (2d Cir. 1992)). 
68 

 

United States v. Reilly -- Nos. 93-7671, 93-7673, 93-7684, 

93-7685, 93-7686 

and 

United States v. Dowd -- No. 93-7694 

GARTH, J., dissenting

 I am compelled to dissent from the majority opinion as 

(1) the record convinces me that Reilly is entitled to a new 
69 

trial on all charges, and (2) the record also requires that the 

false declaration charge against Dowd must be dismissed. I am 

also disturbed with the evidentiary analysis by which the 

majority sustains Reilly's conviction. That analysis, which in 

my opinion is seriously flawed, not only affects this appeal, 

but, because it will become the law of this circuit, it 

necessarily infects all future trial and appellate proceedings on 

which it may impact. It is for these reasons -- more fully 

expressed below -- that I find it necessary to part company with 

my colleagues in the majority. 

I. 

 I am in accord with the majority that: (1) there was 

no ambiguity in the predicate questions underlying Reilly's 

convictions for knowingly making false declarations in violation 

of 18 U.S.C. § 1623(a); (2) Reilly's false declaration 

indictments adequately alleged the falsity of his purportedly 

perjurious responses; and that (3) the disputed radiotelegrams 

admitted into evidence against Reilly were properly authenticated 

through circumstantial evidence. 

 I am not in accord, however, with the majority's 

analysis of the hearsay issues raised by Reilly. For the reasons 

which I will discuss in the following section, I disagree with 

the majority's holding that 13 of the disputed radiotelegrams 

transmitted to the Khian Sea were admissible as non-hearsay 

admissions of Reilly. In my opinion, the district court erred in 

admitting those radiotelegrams, and that error necessarily 
70 

undermined the entire trial process, thereby tainting Reilly's 

jury conviction on the ocean dumping violation (33 U.S.C. 

§1411(a)), as well as his false declaration convictions. 

Accordingly, rather than affirm Reilly's conviction, as the 

majority holds, I would reverse Reilly's conviction and remand 

his case to the district court for a new trial on all charges. 

 I also must disagree with the majority's affirmance of 

Dowd's conviction for knowingly making a false declaration before 

the federal grand jury in violation of 18 U.S.C. § 1623(a). 

Unlike the majority, I am not convinced that the predicate 

question posed to Dowd before the grand jury was unambiguous. 

Based on the inherent ambiguity of the question to which Dowd was 

found to have responded falsely, I would reverse his conviction, 

and I would remand to the district court for dismissal of the 

§1623(a) charge against Dowd. My disposition would obviate the 

need to address the sentencing issues raised by Dowd. 

 Inasmuch as I would reverse Reilly's convictions on the 

hearsay issue, and Dowd's conviction because of the ambiguity of 

the predicate question, I would not reach the improper 

prosecutorial comment issues raised by Reilly and Dowd. I hasten 

to add, however, that I would otherwise be in accord with the 

majority's determination that neither Reilly nor Dowd was 

prejudiced by the prosecutor's closing arguments to the jury, and 

that our holding in United States v. DiLoreto, 888 F.2d 996, 999 

(3d Cir. 1989), does not require reversal per se in this case. 

II. 
71 

 I agree that the Government could establish by 

circumstantial evidence the authenticity of most, if not all, of 

the disputed radiotelegrams transmitted to and from the Khian Sea

during its nearly two-year odyssey. Fed. R. Evid. 901(b)(4) 

(authentication can be established by "[a]ppearance, contents, 

substance, internal patterns, or other distinctive 

characteristics, taken in conjunction with other circumstances"); 

see also United States v. McGlory, 968 F.2d 309, 329 (3d Cir. 

1992) (holding that sufficient evidence existed for the jury to 

find that notes were authored by the defendant, despite the 

government's inability to establish fully the defendant's 

authorship by expert opinion), cert. denied, 113 S.Ct. 1388 

(1993); United States v. Addonizio, 451 F.2d 49, 71 (3d Cir. 

1971) (noting that, for authentication purposes, "the connection 

between a message (either oral or written) and its source may be 

established by circumstantial evidence"), cert. denied, 405 U.S. 

936 (1972). 

 A thorough review of the record persuades me that the 

Government satisfied its burden of establishing a prima facie

case from which the jury could have inferred that the disputed 

radiotelegrams were what they purported to be, i.e., cable 

communications between the Khian Sea and Coastal Carriers and 

other onshore entities and individuals, including Reilly. As we 

have often said, "'the burden of proof for authentication is 

slight. All that is required is a foundation from which the 

fact-finder could legitimately infer that the evidence is what 

the proponent claims it to be.'" Link v. Mercedes-Benz of N. Am. 
72 

Inc., 788 F.2d 918, 927 (3d Cir. 1986) (quoting McQueeney v. 

Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985)) 

(additional citations omitted). 

 Hence, I am in accord with the majority's holding that 

the disputed radiotelegrams were properly authenticated pursuant 

to Federal Rule of Evidence 901, by circumstantial evidence. See

United States v. Console, 13 F.3d 641, 661 (3d Cir. 1993) ("The 

scope of appellate review upon this issue is confined to 

determining whether the admission constituted abuse of judicial 

discretion in determining that a prima facie case had been made 

out") (internal quotes and citations omitted), cert. denied, 114 

S. Ct. 1660 (1994). 

A. 

 A showing of authenticity, however, "is not on a par 

with more technical evidentiary rules, such as hearsay 

exceptions, governing admissibility." Link, 788 F.2d at 928 

(quoting United States v. Goichman, 547 F.2d 778, 784 (3d Cir. 

1976)); accord McGlory, 968 F.2d at 328-329. That is because, 

once a prima facie showing of authenticity is made, it is the 

jury, and not the court, which ultimately determines the 

authenticity of the evidence. Id. 

 In contrast, the determination of whether hearsay is 

admissible at all is a matter of law for the court to decide, not 

a condition of fact subject to jury resolution. The majority's 

treatment of the hearsay issues raised by Reilly, however, 

effectively and impermissibly equates our evidentiary rules 
73 

governing admissibility with the slight showing required for 

authentication. 

 Contrary to the majority view, I am convinced that 13 

of the incoming radiotelegrams, while properly authenticated, 

should not have been admitted into evidence because they contain 

inadmissible hearsay. See McGlory, 968 F.2d at 331 

("Notwithstanding authentication, the [documents] would still 

have to be excluded if the assertions in them are hearsay that 

does not fall under any exception to Federal Rule of Evidence 802 

precluding the admissibility of hearsay."). 

B. 

 For purposes of my analysis, I am willing to assume 

that the 18 outgoing radiotelegrams (i.e., those cable 

communications from the Khian Sea to onshore entities and 

individuals) were properly admitted by the district court. I 

therefore accept the majority's position that the messages 

contained in those outgoing radiotelegrams were admissible 

pursuant to Federal Rule of Evidence 801(d)(1) as non-hearsay 

prior statements of prosecution witness Captain Fuentes, and that 

the outgoing radiotelegrams themselves were admissible under the 

Rule 803(6) hearsay exception for records of regularly conducted 

activity. See Majority Typescript at 40-41. I also will allow 

that the admission of the four incoming radiotelegrams not linked 

to Reilly was harmless. See id. at 42. 

 We thus are left with 13 incoming radiotelegrams: the 

12 purportedly sent to the Khian Sea by Reilly in Annapolis; and 
74 

the one purportedly sent by Kimon Berbillis, the shipping agent 

for Romo in Greece. The transmission of each of these incoming 

radiotelegrams involved the following three-step process: (1) a 

coastal station operator would receive a message from an onshore 

sender; (2) that operator would then note the date and time of 

the transmission and where the communication or message 

originated or was "Handed In"; and (3) the coastal station 

operator would then transmit that message in Morse Code to the 

Khian Sea, where the radioman onboard the Khian Sea would convert 

the incoming message from Morse Code into a typed message. 

 Reilly argues that the incoming radiotelegrams 

contained three levels of hearsay: (1) the communication between 

the onshore sender (the hearsay declarant) and the coastal 

station operator (the witness auditor); (2) the communication 

between the coastal station operator (the hearsay declarant) and 

the radio operator on the Khian Sea (the witness auditor); and 

(3) the radio operator's written recordation of the message. The 

majority concedes "that the incoming radiotelegrams to the Khian

Sea were the product of [these] three out-of-court 'statements.'" 

Majority Typescript at 29. It concludes, however, that those 

three out-of-court "statements" are not inadmissible hearsay. Id.

at 30. In reaching that conclusion, I suggest that the majority 

has put the rabbit in the hat. 

C. 

 The majority's hearsay analysis is fundamentally flawed 

because it is premised on the assumption that the 12 
75 

radiotelegrams allegedly sent by Reilly originated in Annapolis, 

where Reilly lived and worked. See Majority Typescript at 7, 17, 

19, 20, 21, 22, 24, 26, 27, 31, 32, 33, 34, 35, 40. Yet, the 

Government never adduced any evidence, apart from the disputed 

documents themselves, that the messages contained in the 

radiotelegrams had actually originated in Annapolis. Without 

such evidence, these radiotelegrams and all statements contained 

therein cannot be linked to Reilly. 

 There was no testimony from any of the intermediate 

coastal stations that the radiotelegrams were, in fact, "Handed 

In at ANNAPOLIS," as asserted by the coastal station operators in 

the radiotelegrams. No coastal station operator, employee, or 

representative ever testified that the originating stations, and 

the dates asserted in the radiotelegrams were, in fact, the 

originating stations from which, and the dates on which, the 

messages from the unidentified onshore declarants were received 

and/or transmitted by the coastal stations. Moreover, even 

though the district court acknowledged that "there may be 

significant transmission errors," R. app. 1297-98, there was no 

evidence presented that the coastal stations accurately 

transcribed the messages they received from the unidentified 

onshore declarants, or that the coastal stations accurately 

transmitted those messages, in Morse Code, to the Khian Sea. 

 Hence, the "statements" contained in the radiotelegrams 

can only be viewed as "[h]earsay included within hearsay." See

Fed. R. Evid. 805. We have the hearsay of unidentified onshore 

declarants transmitted by unidentified coastal operators, who 
76 

also transmitted additional hearsay specifying the point of 

origin and the date to the Khian Sea radioman, who ultimately 

translated all of that hearsay from Morse Code into a written 

recordation. As "[h]earsay included within hearsay," the 

incoming radiotelegrams thus are subject to Rule 805, which 

requires for admissibility that "each part of the combined 

statements [must] conform[] with an exception to the hearsay rule 

provided in these rules." The majority's "layered approach to 

the hearsay analysis," see Majority Typescript at 33 n.14, does 

not satisfy that criterion for admissibility of the incoming 

radiotelegrams. 

 Significantly, the majority fully acknowledges that the 

point of origin and destination of each radiotelegram, and the 

date on which each radiotelegram was sent, "were introduced to 

prove their truth, i.e., to prove that the radiotelegrams were 

sent from the point of origin to the destination on the 

designated date." Majority Typescript at 32. It further 

recognizes that the Government did not produce a coastal station 

operator as a witness, thereby complicating its hearsay analysis. 

Id. at 32 n.14. The majority then attempts to finesse the 

absence of any testimony from the coastal stations which arguably 

could have bridged the gap in the hearsay communications between 

the unidentified onshore declarants and the radioman onboard the 

Khian Sea. It declares, in effect, that, while it would have 

been nice for the district court to have heard from a coastal 

station operator at trial, that testimony is not really necessary 

for our purposes because we can assume, through other evidence, 
77 

that the radiotelegrams were "handed in at Annapolis," and 

therefore had to come from Reilly. I disagree. 

 The majority is remitted to "assembling" evidence from 

Captain Fuentes and Coastal Carriers' secretary, Clare Dobbins, 

to substantiate its theory that Reilly authored and sent the 

radiotelegrams from Annapolis to the Khian Sea, and that Reilly 

authorized Berbillis to do the same. The difficulty with this 

analysis is that it necessarily must rely on the dates and places 

of origin of each radiotelegram. However, no coastal station 

operator ever testified to those essential components of the 

radiotelegrams, and thus the evidence which the majority seeks to 

weave into a hearsay exception fails, because it lacks the 

critical links that only the coastal station operators could have 

supplied. Hence, none of the trial evidence, set forth in the 

majority's opinion, established that these 12 incoming 

radiotelegrams actually originated in Annapolis, let alone that 

Reilly sent them. See Majority Typescript at 33 nn.14 and 15, 34 

n.16, 37 n.17, and 38 n.18. Nor did it establish, as I point out 

later, that Reilly ever authorized Berbillis to send the 13th 

incoming radiotelegram. 

 Reilly testified at trial that anyone who knew the 

telex billing number for his Annapolis-based company, Coastal 

Carrier, could call a coastal station from anywhere in the world 

and send a shore-to-ship transmission, which would be identified 

as having originated in Annapolis. That testimony was 

uncontroverted, and there was no evidence presented by the 

Government, apart from the radiotelegrams themselves, that it was 
78 

Reilly, and not someone else who knew Coastal Carriers' billing 

number, who sent the 12 incoming radiotelegrams which the 

Government attributed to Reilly. 

 Because, as I also point out later, the Government 

failed to lay the proper foundation for admission of the 

radiotelegrams pursuant to the business records exception of Rule 

803(6),0 and because the radiotelegrams themselves do not meet 

the requirements of any other exception to the hearsay rule, 

there is no admissible evidence establishing that the 12 

radiotelegrams were sent from Annapolis. See Fed. R. Evid. 805. 

Consequently, the "statements" contained in those radiotelegrams 

-- which the majority links to Reilly through inadmissible 

hearsay (e.g., "Handed In at ANNAPOLIS") -- cannot be deemed 

admissible as non-hearsay admissions of Reilly. 

 Statements attributed to Reilly would, by themselves, 

of course, be admissible under Rule 801(d)(2)(A), which provides 

 

0 Rule 803(6) provides: 

A memorandum, report, record, or data compilation, 

in any form, of acts, events, conditions, 

opinions, or diagnoses, made at or near the time 

by, or from information transmitted by, a person 

with knowledge, if kept in the course of a 

regularly conducted business activity, and if it 

was the regular practice of that business activity 

to make the memorandum, report, record, or data 

compilation, all as shown by the testimony of the 

custodian or other qualified witness, unless the 

source of information or the method of 

circumstances of preparation indicate lack of 

trustworthiness. The term "business" as used in 

this paragraph includes business, institution, 

association, profession, occupation, and calling 

of every kind, whether or not conducted for 

profit. 
79 

that a statement is not hearsay if it is offered against a party, 

and is the party's own statement in either an individual or 

representative capacity. Without the requisite foundational 

testimony from a coastal station representative, however, there 

simply is no admissible evidence establishing Reilly as the 

onshore declarant who transmitted the radiotelegram instructions 

to the Khian Sea. That being so, any "statements" allegedly made 

in the radiotelegrams by Reilly, either directly or indirectly, 

were not admissible as non-hearsay admissions of a partyopponent. See Fed. R. Evid. 805; Carden v. Westinghouse Elec. 

Corp., 850 F.2d 996, 1003 (3d Cir. 1988) ("That part of [the 

hearsay included within hearsay] which contains a reiteration of 

what someone told him is not admissible as an admission by partyopponent since the author of the statement is unknown.") 

(citation and internal quotation omitted). 

 By the same token, the message contained in the 

radiotelegram purportedly sent to the Khian Sea by Berbillis from 

Greece0 is inadmissible hearsay because no coastal station 

operator ever established Berbillis as the onshore declarant. Id. 

Nor can that out-of-court statement be deemed to be an admission 

authorized by Reilly under Rule 801(d)(2)(C). That Rule of 

 

0 The radiotelegram purportedly sent on October 7, 1988 from 

Kimon Berbillis in Greece to the Khian Sea, contained the 

following message: 

ATT A. FUENTES PLEASE DELAY YOUR ETA UNTIL NOON OCTOBER 

14 STOP TRY ARRIVE WITH 500 TONS IN ONEHOLD STOP REILLY 

WILL CABLE YOU INFO YOU REQUESTED STOP BEST REGARDS 

 KIMON 

R.app. 1214. 
80 

Evidence excludes from the definition of hearsay a statement 

introduced against a party which that party authorized another 

person to make concerning the subject. 

 Independent proof of the existence of an agency 

relationship and its scope would be required to show that Reilly 

authorized Berbillis to send any radiotelegram to the Khian Sea. 

See United States v. Pelullo, 964 F.2d 193, 200 n.4 (3d Cir. 

1992). Contrary to the majority's position, there is no such 

proof to establish that Berbillis, an employee of Romo and not of 

Coastal Carriers, "was acting on behalf of Reilly or at his 

behest." See Majority Typescript at 23. The majority opinion 

nevertheless appears to assume that Reilly had authorized 

Berbillis to make the statement which appeared in the 

radiotelegram Berbillis allegedly sent to Captain Fuentes. 

However, apart from Fuentes' testimony that "Reilly told him that 

. . . Kimon Berbillis would give him [Fuentes] instructions," see

Majority Typescript at 36, the majority points to no evidence 

establishing that Berbillis was authorized by Reilly to send any 

radiotelegram to Captain Fuentes pertaining to the ash. Nor does 

the majority refer us to any evidence whatsoever that links 

Reilly to Romo. 

 For the same reason that no agency relationship or 

authorization appears in the proofs, the "statements" of the 

coastal operators (i.e., time, date, and place of origin of the 

radiotelegrams) and the "statements" of the Khian Sea radioman 

(i.e., the recordation of the incoming hearsay) could not be 

admitted as non-hearsay authorized admissions of Reilly pursuant 
81 

to Rule 801(d)(2)(C), although the majority holds otherwise. See

id. at 38. 

 In Carden, we cautioned district courts against 

admitting declarations of unidentified persons into evidence. 850 

F.2d at 1003. Here, the Government failed to establish the 

identity of two groups of out-of-court declarants: (1) the 

unidentified onshore declarants (alleged here but not proved to 

be Reilly in Annapolis and Berbillis in Greece) who transmitted 

messages to the coastal station operators; and (2) the 

unidentified coastal station operators who in turn transmitted 

those original messages in Morse Code and then added further 

hearsay allegedly establishing the place of origin and the date 

of the original message. 

 We also reiterated in Carden another well-established 

rule of law: that the proponent of evidence bears a heavy burden 

to satisfy trustworthiness requirements. Id. Significantly, the 

district court in the instant case recognized the "risk that the 

[onshore] sender may have been someone else other than Reilly." 

R.supp.app. 1297. Yet, the Government never admitted any 

evidence, except for the inadmissible documents, that Reilly 

authored the statements in the radiotelegrams. Notwithstanding 

that omission, the district court admitted the radiotelegrams 

anyway, without offering any explanation or rationale for its 

decision. The majority compounds that error with its tortured 

hearsay analysis. 

D. 
82 

 The majority also fails to support its position that 

the statements attributed to Reilly would be admissible as nonhearsay, on the theory that those statements were not offered by 

the Government to prove that their substance was either true or 

false. The radiotelegrams were offered more than merely "'to 

prove the fact that the certain instructions had been given,' . . 

. and as circumstantial evidence of Reilly's state of mind, 

namely his knowledge of the ash dumping operation," as the 

majority holds. See Majority Typescript at 31. Regardless of 

the distinctions sought to be drawn by the majority between 

instructions and statements of fact, the "instructions" here, 

even if relevant to the hearsay analysis, have extraordinary 

hearsay implications. Compare Crawford v. Garnier, 719 F.2d 

1317, 1323 (7th Cir. 1983) (affirming district court's admission 

into evidence of nonparty's out-of-court instructions "which 

carried no hearsay implications"). 

 The "instructions" attributed to Reilly -- e.g., 

"ARRIVE COLOMBO . . . WITH ONLY 500 TONS BALLAST" and "DISPOSE 

500 BALLAST PRIOR ARRIVAL SINGAPORE" -- are vastly different from 

any of the instructions or orders in the cases cited by the 

majority. See Majority Typescript at 31 (citing Anderson v. 

United States, 417 U.S. 211, 220 n.8; Crawford, 719 F.2d at 1323; 

United States v. Gibson, 675 F.2d 825, 833-34 (6th Cir.), cert. 

denied, 459 U.S. 972 (1982); United States v. Keane, 522 F.2d 

534, 558 (7th Cir. 1975), cert. denied, 424 U.S. 976 (1976)). 

None of the instructions in the Supreme Court case of Anderson, 

or in the courts of appeals decisions in Crawford, Gibson, and 
83 

Keane, carried hearsay implications, and none was admitted in the 

egregious context that these "instructions," if indeed one can 

call them that, were admitted in the instant case. 

 Of even greater import, however, is the fact that the 

messages, even if called instructions, were nevertheless made 

known to the jury and could not have helped but influence the 

jury because of their contents. The district court never 

instructed the jury on how this evidence was to be considered; 

hence, the jury was never told that it could consider the 

messages attributed to Reilly only for the limited purpose of 

establishing that certain instructions had been given and as 

circumstantial evidence of Reilly's state of mind, and not as 

direct proof of Reilly's guilt. 

 We have many times expressed our disapproval of any 

admission of statements "which are not technically admitted for 

the truth of the matter asserted, whenever the matter asserted, 

without regard to its truth value, implies that the defendant is 

guilty of the crime charged." McGlory, 968 F.2d at 332. There 

is little doubt in my mind that the Government offered the 

incoming radiotelegrams to Reilly to prove, by their contents, 

that Reilly not only had ordered Captain Fuentes to dump the ash 

in the ocean, but that Reilly also lied about the ash dumping 

operation when he responded to questions at the contempt 

proceeding and again before the federal grand jury. I do not 

believe that our cases permit the admission of such 

"circumstantial evidence" of guilt. See, e.g., United States v. 

Reynolds, 715 F.2d 99, 103-04 (3d Cir. 1983) (holding statement 
84 

inadmissible because it was offered to "prove the truth of the 

assumed fact of defendant's guilt implied by its content."). 

 The evil in the majority's opinion is that it distorts 

established evidentiary jurisprudence in order to embrace the 

Government's actions, actions which are not authorized by any 

Rule of Evidence. To accept the majority's ruling as the law of 

this court will affect not only Reilly; it will, in effect, 

dismantle the hearsay provisions of the Federal Rules of 

Evidence. Despite the attempts by the majority to cabin the 

district court's ruling within the doctrines of Anderson and 

McGlory, the majority's opinion eviscerates the very safeguards 

that the hearsay rule and its limited exceptions were designed to 

protect. 

 The messages attributed to Reilly should not, in any 

event, be considered in the hearsay calculus. That is because 

their admissibility is not independent of the radiotelegrams 

themselves. Whatever the messages contained in the 

radiotelegrams, the hearsay elements of the radiotelegrams which 

involved the location and date of the radiotelegrams were never 

satisfied by competent proof. The failure of the Government to 

establish through the coastal station senders' testimony that 

Reilly was the sender from Annapolis on the particular date 

created the threshold hearsay problems, and the radiotelegrams 

"linked" to Reilly only because of the location and date shown 

could not, on this record, satisfy any exception to the hearsay 

rule. See Fed. R. Evid. 805. The majority's attempt to overcome 

this problem, in my view, never succeeds. 
85 

 The majority, without testimony that Reilly sent the 

radiotelegrams from Annapolis, seeks to gloss over this omission 

by what it calls "circumstantial evidence." But what evidence is 

disclosed in the record? None, because the coastal station 

operator who could have testified as to who sent the dispatchs, 

and from where and when they were sent, never testified at trial. 

 In other words, the majority would relieve the 

Government from the requirements of Rule 805, and of the 

foundational requirements of Rule 803(6), while at the same time 

it disregards our own jurisprudence. I could not disagree more. 

E. 

 The Government argues that "[e]ven if the 

radiotelegrams were hearsay, they were properly admitted under 

the exception for records of regularly conducted activity." 

U.S.br. at 33. Despite this argument, the majority has now 

acknowledged that, because the coastal station operators had not 

testified to lay the foundation for the introduction into 

evidence of their "statements" pursuant to the business records 

exception of the hearsay rule, "the radiotelegrams were not 

introduced as business records of the coastal sending station." 

Majority Typescript at 33 n.14. The majority, apparently 

concerned about the admissibility of the radiotelegrams allegedly 

sent by Reilly and Berbillis, nonetheless finds support for their 

admission in the business records exception to the hearsay rule, 

Rule 803(6). See Majority Typescript at 38-40. 

 The requirements of Rule 803(6) can be shorthanded as 

(1) knowledge, (2) contemporaneous recordation, (3) in the 
86 

regular course of business, (4) which requires such records 

regularly to be kept. There can be no question that the four 

foundational requirements of Rule 803(6), identified and 

discussed by the majority ante at (Majority Typescript at 

39), were not satisfied in the instant case. 

 Notwithstanding the testimony of the Khian Sea radio 

operator, Carcamo, about his documenting of the incoming 

radiotelegrams, those incoming radiotelegrams cannot satisfy the 

requirements of Rule 803(6) because no "qualified witness" for 

the coastal stations ever attested at trial that 

(1) the declarants in the records had knowledge to make 

accurate statements; (2) that the declarant[s] recorded 

statements contemporaneously with the actions which 

were the subject of the reports; (3) that the 

declarant[s] made the record in the regular course of 

the business activity; and (4) that such records were 

regularly kept by the business. 

Console, 13 F.3d at 657 (citations and internal quotations 

omitted). Without this crucial testimony from the coastal 

station operators, who were the intermediaries in the 

transmissions between the onshore declarants and Carcamo, the 

incoming radiotelegrams could not be admitted in evidence. 

 I therefore suggest that the majority's reliance on 

Carcamo's testimony, see Majority Transcript at 40-41, is clearly 

misplaced. As I point out below, Carcamo was in no position to 

testify as to who the declarants were, the origin of the 

radiotelegrams, or the date they were transmitted by the onshore 

declarants. The fact that Carcamo may have kept files of these 
87 

messages cannot supply the foundational requirements that only 

the coastal station operators could have furnished. 

 Rule 803(6) requires each person transmitting recorded 

information to "verify the information provided, or [else] the 

information transmitted [must meet] the requirements of another 

hearsay exception, Fed.R.Evid. 805." Console, 13 F.3d at 657. 

No coastal station operator ever verified the "statements" 

contained in the radiotelegrams, and those "statements" 

ultimately recorded by Carcamo onboard the Khian Sea were 

inadmissible because they do not satisfy the requirements of any 

other exception to the hearsay rule. See Fed. R. Evid. 805. 

 The principal precondition to admission of documents as 

business records is that the records have sufficient indicia of 

trustworthiness to be considered reliable. Fed. R. Evid. 803(6) 

(authorizing admission of records of regularly conducted 

activities "unless the source of information or the method or 

circumstances of preparation indicate lack of trustworthiness.") 

(emphasis added). Here, the record reveals that the 

precondition of trustworthiness was not satisfied. The only 

evidence even remotely bearing on this issue was Carcamo's 

testimony that he never had any complaints about the accuracy of 

his translation of Morse Code. Carcamo did not, and could not, 

testify about the accuracy of the coastal station operators'

translation of the original message into Morse Code and their 

transmissions of those coded messages to the Khian Sea, let alone 

concerning "the source of information," as required by Rule 

803(6). 
88 

 Indeed, the district court explicitly recognized that 

"there may be significant transmission errors in particular 

documents," R. supp. app. 1297-28, and the Government never 

presented any evidence from the coastal station operators to 

quell that concern. For this reason alone, the incoming 

radiotelegrams themselves could not be admitted under the 

business records exception to the hearsay rule. See United 

States v. Nixon, 779 F.2d 126, 134 (2d Cir. 1985) (holding that 

telex containing many inaccuracies failed to satisfy requirements 

of Rule 803(6)). 

F. 

 For all of the reasons which I have discussed -- i.e., 

no proof that the radiotelegrams were sent by or authorized by 

Reilly, and no foundation for their admission under any exception 

to the hearsay rule, including the business records exception --I 

would hold that the 12 incoming radiotelegrams purportedly sent 

to the Khian Sea by Reilly from Annapolis, the one radiotelegram 

purportedly sent by Berbillis from Greece, and all statements 

contained therein, were erroneously admitted into evidence by the 

district court. 

 There is no question in my mind that the erroneous 

admission of the 13 radiotelegrams was not harmless error. That 

evidence was crucial to the Government's case against Reilly. It 

alone corroborated Captain Fuentes' testimony that Reilly ordered 

the Khian Sea crew to dump the ash in the ocean, and that Reilly 

thus knew that the ash had been dumped in the ocean. Indeed, the 
89 

Government indicated to the jury that the radiotelegrams, and not 

the testimony of Captain Fuentes, was "the" evidence against 

Reilly. R.app. 1109.0

 Because those 13 incoming radiotelegrams were 

enormously prejudicial to Reilly, I would hold that it was 

reversible error for the district court to admit them into 

evidence. Accordingly, I would reverse Reilly's convictions on 

all charges, and I would remand his case to the district court 

for a new trial. 

III. 

 I also believe that the majority errs in holding that 

the predicate question forming the basis for Dowd's conviction 

for knowingly making a false declaration before the federal grand 

jury was not fatally ambiguous. Rather, I am convinced that a 

reversal and a remand for dismissal of the false declaration 

 

0 In his summation to the jury, the prosecutor urged: "Ladies 

and gentlemen, look at the cables, this is the evidence." R.app. 

1109. The prosecutor further argued that: 

Captain Fuentes is not the key witness in this 

case. All of the evidence is what I am asking and 

I submit to you what you need to consider . . . . 

Not anyone, not anyone could have filled those 

cables out. When you read them, read through them 

and see how they fit together very well. See how 

they show what was going on at the time. 

R.app. 1117-18. While acknowledging that the Government bore the 

burden of proof at trial, the prosecutor also told the jury that, 

"I guarantee you one thing, if [Reilly] had anything to say that 

would have discredited those cables, [he] would have brought 

them. . . . [Reilly] didn't bring them because the cables are 

accurate." R.app. 1122. 
90 

charge against Dowd is required because the question which he is 

alleged to have answered falsely is so fundamentally ambiguous 

that it would be entirely unreasonable to expect that he 

understood it. United States v. Ryan, 828 F.2d 1010, 1015 (3d 

Cir. 1987); United States v. Slawik, 548 F.2d 75, 86 (3d Cir. 

1977). 

 Before the federal grand jury, the following exchange 

took place: 

A GRAND JUROR: Do you know what happened to the ash? 

[DOWD]: No. 

A GRAND JUROR: You have no idea? 

 [DOWD]: No, I don't. I honestly have not been 

on that ship for two and a half years. * 

* * 

A GRAND JUROR: Seeing how you had all this concern of 

not being able to unload this ash, you 

didn't ask anybody where it went: 

[DOWD]: Who is there to ask? 

A GRAND JUROR: I guess you could start with asking the 

captain. He ought to know where it 

went. 

[DOWD]: They say -- he's a funny guy. The first 

time I met him. Honduran person. He 

said "The ash is gone." And I said -- 

A GRAND JUROR: Just said good, but you didn't ask where 

it went? You didn't want to know where 

it went? 

[DOWD]: No, I didn't ask and I don't know. All 

right? Nor did he tell me. 

(D. app. 475-76 (emphasis added.) 

 At trial, the jury was asked to answer special 

interrogatories with respect to the above-quoted testimony. 

Specifically, it was asked to decide the truth or falsity of 

Dowd's negative responses to each of the following distinct 

questions: 

 (1) "Do you know what happened to the ash?" 
91 

(2) "You have no idea?" 

(3) "[Y]ou didn't ask where it went? You didn't want 

to know where it went?" 

 The jury acquitted Dowd of giving false testimony in 

response to question (3); that is, the jury found that Dowd did 

not ask where the ash went and did not want to know where the ash 

went. The jury did not return a verdict on question (1); thus it 

never decided whether Dowd answered falsely when he testified 

before the grand jury that he did not know what happened to the 

ash. With respect to question (2), the jury found that Dowd 

violated 18 U.S.C. § 1623(a) by falsely stating, "No, I don't," 

in response to the question, "You have no idea?" 

 While I agree with the majority that a jury is 

"generally free to determine the meaning the defendant ascribed 

to a question," I cannot agree with the majority's conclusion 

that the question "You have no idea?" is amenable to jury 

interpretation. See Majority Typescript at 50. The Government 

concedes that "if viewed in isolation, that question would be 

fatally ambiguous." U.S. br. at 50. Unlike the majority, 

however, I am not persuaded by the Government's argument that the 

ambiguity issue can be resolved in its favor and against Dowd 

because "'viewed in context, the question posed to Dowd was 'you 

have no idea [what happened to the ash]?'" See Majority 

Typescript at 49 (quoting U.S. br. at 51). 

 In my opinion, the question "You have no idea?" not 

only is imprecise and vague, it is susceptible to at least two 

possible meanings. That much is evident by the equally plausible 
92 

constructions urged by Dowd and by the Government. As the 

Government argues, the question could be viewed as asking Dowd, 

"Are you certain that you have no knowledge of what happened to 

the ash?" Or, as Dowd contends, the question can be viewed as 

asking whether Dowd had "any idea -- however far it may fall 

short of actual knowledge -- concerning what happened to the 

ash?" D. rp.br. at 3-4. 

 It is impossible to say that "'men of ordinary 

intellect could agree'" about the meaning of the question, "You 

have no idea?" See Ryan, 828 F.2d at 1015, 1017 (citations 

omitted). That question can just as easily be understood to be 

asking whether Dowd had any actual knowledge of what happened to 

the ash, as it could be understood as asking Dowd whether he had 

any idea whatsoever about what happened to the ash, as Dowd 

contends. 

 Although the majority indicates otherwise, see majority 

typescript at 49, the district court never rejected Dowd's 

argument that the question, "You have no idea?" was fatally 

ambiguous.0 To the contrary, in granting Dowd a stay of sentence 

 

0 Before trial, the district court rejected Dowd's motion to 

dismiss the false declaration count on the ground that it was 

based on questions and answers too ambiguous or vague so as to be 

legally insufficient to support a perjury conviction. In doing 

so, the district court focused only on two of the three questions 

later submitted to the jury: "Do you know what happened to the 

ash?" and "[Y]ou didn't ask where it went? You didn't want to 

know where it went?" United States v. Reilly, 811 F. Supp. 177, 

180 (D. Del. 1993). The district court never even considered the 

ambiguity of the question "You have no idea?" -- the only 

question which Dowd was convicted of answering falsely. See id.

at 180-181. 
93 

pending appeal, the district court recognized that "there is a 

substantial question about the ambiguity and the materiality of 

the question and answer that was the subject of the perjury 

conviction." R. app. 302. I, too, believe that there is a 

substantial question about the ambiguity and materiality of the 

predicate question, and I would hold that that question must be 

resolved in favor of Dowd. See Ryan, 828 F.2d at 1015; Slawik, 

548 F.2d at 86. I do not address materiality because the patent 

ambiguity of the question to which Dowd responded obviates any 

need to go beyond the issue of ambiguousness. Slawik, 548 F.2d 

at 86. 

 Because of the inherent ambiguity of the question "You 

have no idea," I do not believe that the jury should have been 

allowed to consider Dowd's answer to that question as a possible 

basis for conviction of the false swearing charge. See Ryan, 828 

F.2d at 1017. Accordingly, I would reverse Dowd's conviction for 

knowingly answering that question falsely before the grand jury, 

and I would not even reach the issue Dowd raises concerning the 

materiality of that question. 

IV. 

 I again emphasize my concern that the majority's 

unfortunate "hearsay" analysis, which results in sustaining 

Reilly's conviction, will have ramifications that will extend far 

beyond the confines of this appeal, so long as it remains the law 

of this circuit. 

 For the reasons which I have expressed in the foregoing 

opinion, I respectfully dissent from the majority's affirmance of 
94 

the judgments of conviction and sentence against both Reilly and 

Dowd.