## Facts

- John Muscato, a Newark police officer who moonlighted as a machinist, agreed to manufacture copies of a pen-shaped single-shot firearm supplied as a prototype.
- While the prototype was being copied, Muscato lent Walter Gollender a .25-caliber pistol; Gollender marked the pistol with a gummed label indicating safety and firing positions.
- After the prototype was returned, Gollender gave the pistol to a co-conspirator.
- Federal agents infiltrated the distribution network by posing as organized-crime buyers and purchasing pen-guns, leading to arrests and indictments.
- The marked .25-caliber pistol was later seized from Charles McDonald during an arrest.
- Gollender made an out-of-court statement to a government agent identifying the seized pistol as the same gun Muscato had lent him.
- At trial, cooperating witnesses testified against Muscato, and their testimony was corroborated by circumstantial evidence; Muscato claimed he lacked criminal intent and believed he was making “flashlight parts,” not firearms.
- After being convicted of conspiracy to unlawfully manufacture firearms and related offenses, Muscato moved for a new trial under Federal Rule of Criminal Procedure 33, primarily arguing that the pistol-identification statement was improperly admitted hearsay.

## Issues

1. Whether testimony about Gollender’s out-of-court statement identifying the seized pistol as Muscato’s loaned gun was inadmissible hearsay requiring a new trial under Rule 33.
2. If the statement was hearsay, whether it was admissible under the residual hearsay exception (then Federal Rule of Evidence 803(24), now Rule 807).
3. Whether the statement’s probative value was substantially outweighed by unfair prejudice under Federal Rule of Evidence 403.

## Decision

- The court denied Muscato’s Rule 33 motion for a new trial.
- The court held the challenged identification testimony was admissible either as non-hearsay (for credibility/circumstantial purposes) or, alternatively, under the residual hearsay exception.
- The court found the statement had sufficient guarantees of trustworthiness and served a proper corroborative function in light of defense attacks on Gollender’s credibility.
- The court found hearsay risks were minimized because both Gollender and the agent who heard the statement were available for cross-examination.
- The court concluded the evidence was not unfairly prejudicial under Rule 403 and did not result in a miscarriage of justice warranting a new trial.

## Legal Principles

- A new trial under Federal Rule of Criminal Procedure 33 is warranted only where the challenged error undermines the fairness of the verdict (i.e., results in a miscarriage of justice).
- An out-of-court statement may be admissible as non-hearsay when offered for a purpose other than proving the truth of the matter asserted, including to rehabilitate credibility or as circumstantial evidence.
- Under the residual hearsay exception (then Fed. R. Evid. 803(24), now Rule 807), a hearsay statement may be admitted if it has equivalent guarantees of trustworthiness, is highly probative compared to reasonably available alternatives, and admission serves the interests of justice.
- Availability of both the declarant and the reporting witness for cross-examination substantially reduces hearsay dangers relevant to reliability.
- Evidence with substantial probative value—particularly corroborative evidence responsive to credibility attacks—may be admitted if not substantially outweighed by unfair prejudice under Federal Rule of Evidence 403.

## Conclusion

The court refused to order a new trial because the challenged out-of-court pistol identification was properly admitted as non-hearsay or under the residual hearsay exception, carried adequate indicia of reliability, posed limited hearsay risks due to cross-examination availability, and did not unfairly prejudice the defendant.


United States v. Muscato, 534 F. Supp. 969 (E.D.N.Y. 1982)