## Facts

- James Raymond Faison, a New Jersey resident, operated an auto-body business in New York City and planned to relocate to New Jersey.
- In connection with negotiations to lease Cal Mancuso’s New Jersey trucking terminal, Faison enlisted Mancuso to help cash blank checks stolen from a New York organization.
- The scheme involved Faison supplying stolen checks and sharing proceeds, while Mancuso recruited individuals to cash the checks.
- The government relied on interstate telephone calls between New Jersey and New York as the interstate element for wire-fraud charges.
- Mancuso later cooperated with the FBI; an informant, Michael Selvanto, participated in recorded conversations and reported developments to agents.
- Faison’s first federal trial ended in a mistrial; Mancuso testified live at that trial after pleading guilty to one count under a plea agreement.
- At the second trial, Mancuso was hospitalized after a heart attack; over defense objection, the district court found him unavailable and permitted the government to read Mancuso’s prior trial testimony to the jury rather than continue the trial.
- The jury convicted Faison of wire fraud (18 U.S.C. § 1343) and interstate transportation of stolen securities (18 U.S.C. § 2314).

## Issues

1. Whether the government impermissibly “manufactured” the interstate element for wire fraud by steering events so interstate telephone calls occurred.
2. Whether admitting a critical co-conspirator’s prior trial testimony, based on illness-related unavailability, violated the Sixth Amendment Confrontation Clause and/or constituted an abuse of discretion under Federal Rule of Evidence 804(b)(1), given the denial of a continuance.
3. Whether the district court incorrectly treated the Speedy Trial Act as limiting its ability to grant a continuance for a temporarily ill witness.

## Decision

- The Third Circuit rejected the claim that the interstate element was improperly manufactured; the interstate calls were part of the scheme’s execution rather than contrived contacts created solely to create federal jurisdiction.
- The Third Circuit vacated the convictions and remanded because the district court abused its discretion by admitting Mancuso’s prior testimony without adequately assessing whether a continuance could secure live testimony.
- The court concluded the district court’s Speedy Trial Act concern was based on legal error because delay attributable to a witness’s illness can be excludable.
- On remand, the district court was directed to determine Mancuso’s present ability to testify and proceed consistently with that determination, including a new trial if live testimony could be obtained.

## Legal Principles

- A wire-fraud interstate communications element is satisfied when interstate calls are used meaningfully to further the charged scheme; jurisdiction is not defeated merely because law enforcement records or participates in communications during an investigation.
- “Manufactured jurisdiction” requires more than investigative involvement; the focus is whether the interstate contact was contrived solely to inject a federal element rather than arising from the scheme’s real operational needs.
- Under Rule 804(b)(1), former testimony may be admitted only if the witness is genuinely unavailable; when unavailability is due to temporary illness, the court must seriously consider whether a continuance can secure live testimony.
- The Confrontation Clause reflects a strong preference for face-to-face testimony; substituting prior testimony requires careful necessity-based justification, especially when the witness is central to proving the defendant’s role.
- The Speedy Trial Act permits exclusion of time for delay attributable to an unavailable witness, including illness, and does not categorically bar a continuance in such circumstances.

## Conclusion

The Third Circuit held that the interstate calls supporting wire-fraud jurisdiction were not government-manufactured, but it vacated Faison’s convictions because the trial court improperly substituted a key witness’s prior testimony without an adequate inquiry into a continuance and based in part on a mistaken view of Speedy Trial Act constraints.


United States v. Faison, 679 F.2d 292 (3d Cir. 1982)