## Facts

- A federal indictment charged Christopher Mornan with participating in a Canada-based “advance fee” telemarketing scheme aimed at U.S. consumers seeking loans.
- The scheme advertised loans to high-risk borrowers through U.S. newspapers and directed victims to call a toll-free number reaching Canadian sales rooms.
- Callers were instructed to submit loan applications; a “closer” later claimed the loan was approved but required the victim to purchase life or disability insurance, often with assurances of a refund upon repayment.
- Victims paid the insurance “premiums” but never received loans and were not refunded.
- The government alleged Mornan acted as an assistant manager and “closer” (using an alias) and later held a higher-level leadership role.
- Canadian authorities searched a sales-room office and found materials on the desk Mornan used (including loan applications and contact lists) connecting him to the operation.
- A witness, Althea Burton, previously testified under oath in a deposition about conduct linking Mornan to cashing victim payments; at trial she claimed near-total memory loss due to a later car accident.
- The district court found the claimed memory loss not credible and admitted the deposition as a prior inconsistent statement under Federal Rule of Evidence 801(d)(1)(A).

## Issues

1. Whether a trial witness’s asserted lack of memory may be treated as “inconsistent” with prior sworn testimony under Federal Rule of Evidence 801(d)(1)(A) when the trial court finds the memory loss is feigned.
2. Whether the district court abused its discretion in other evidentiary rulings admitting proof connecting Mornan to the fraud scheme.
3. Whether a sentence imposed under mandatory Sentencing Guidelines must be vacated and remanded after United States v. Booker made the Guidelines advisory.

## Decision

- The Third Circuit affirmed the evidentiary rulings and the convictions.
- The court held the district court acted within its discretion by admitting Burton’s prior deposition as substantive evidence under Rule 801(d)(1)(A).
- The court vacated Mornan’s sentence and remanded for re-sentencing under the post-Booker advisory Guidelines framework.

## Legal Principles

- A prior statement given under oath may be admitted substantively under Federal Rule of Evidence 801(d)(1)(A) if it is inconsistent with the witness’s trial testimony and the witness is subject to cross-examination.
- A witness’s claimed inability to remember can qualify as an inconsistency for Rule 801(d)(1)(A) when the trial court finds the memory loss is not genuine; that credibility finding is reviewed deferentially.
- Evidentiary rulings in criminal trials are generally reviewed for abuse of discretion, with reversal requiring prejudicial error.
- A sentence imposed under a mandatory Guidelines regime is subject to vacatur and remand after Booker so the district court can sentence under an advisory Guidelines system.

## Conclusion

The Third Circuit sustained Mornan’s fraud convictions, concluding the trial court permissibly treated a witness’s feigned memory loss as inconsistent with her earlier sworn deposition and admitted that deposition as substantive evidence under Rule 801(d)(1)(A), but it vacated the pre-Booker mandatory-Guidelines sentence and remanded for re-sentencing.


United States v. Mornan, 413 F.3d 372 (3d Cir. 2005)