## Facts

- Steven David Montague, a convicted felon, was charged with three counts of possessing firearms in violation of 18 U.S.C. § 922(g)(1).
- After a domestic-violence complaint, police seized three firearms from the Montagues’ home and Montague’s truck; Montague’s wife, Deanne, initially said the firearms belonged to Montague.
- Months later, Deanne told multiple people she had “framed” Montague by placing guns and lying to police, but she soon reversed course and stated she would not lie and that the guns were Montague’s.
- Deanne testified before a federal grand jury that the firearms belonged to Montague and explained her earlier “framing” account was false.
- A court order barred contact between Montague (detained pretrial) and Deanne, but she visited and spoke with him; Deanne later reported they discussed changing her story and that Montague told her she would not get in trouble if she did.
- At trial, Deanne refused to testify, asserting a marital privilege.
- The district court found Montague wrongfully caused Deanne’s refusal to testify and admitted her grand jury testimony under Federal Rule of Evidence 804(b)(6) (forfeiture by wrongdoing).
- Montague was convicted; the district court applied a two-level obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 based on witness tampering.

## Issues

1. Whether Deanne’s grand jury testimony was admissible under Federal Rule of Evidence 804(b)(6) and consistent with the Sixth Amendment Confrontation Clause after Crawford.
2. Whether the obstruction-of-justice enhancement was properly imposed and, if imposed under mandatory Guidelines based on judge-found facts, required resentencing under Booker.

## Decision

- The Tenth Circuit affirmed the convictions.
- The court held the district court did not clearly err in finding Montague intended to, and did, procure Deanne’s unavailability, making Rule 804(b)(6) applicable.
- The court held forfeiture by wrongdoing defeated Montague’s Confrontation Clause objection to the admission of Deanne’s grand jury testimony, notwithstanding Crawford.
- The court vacated the sentence and remanded for resentencing under Booker because the enhancement was imposed under a mandatory Guidelines regime based on judge-found facts.

## Legal Principles

- Under Federal Rule of Evidence 804(b)(6), hearsay is admissible against a party who engaged in or acquiesced in wrongdoing intended to, and that did, procure a witness’s unavailability.
- A district court’s finding that the defendant procured a witness’s absence is reviewed for clear error.
- Forfeiture by wrongdoing operates as an equitable exception to Confrontation Clause protections; a defendant cannot invoke confrontation rights when the defendant’s own misconduct caused the witness’s unavailability.
- After Booker, a sentence imposed under mandatory Guidelines that is increased based on judge-found facts must be vacated and remanded for resentencing under an advisory Guidelines framework.

## Conclusion

The court held that Montague’s efforts to influence his wife’s testimony caused her unavailability and forfeited both hearsay and Confrontation Clause objections to her grand jury testimony, affirming the firearms convictions while vacating and remanding the sentence for resentencing consistent with Booker.


United States v. Montague, 421 F.3d 1099 (10th Cir. 2005)