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United States of America v. David G. Sklena

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ARGUED JANUARY 13, 2012–

Before POSNER, WOOD, and HAMILTON, Circuit Judges.

In March 2009, David Sklena and his co-defendant Edward Sarvey were charged with seven counts of wire and commodity fraud, as well as two counts of noncompetitive futures contract trading. Sarvey died before the start of his trial, but Sklena went to trial. There he sought to use Sarvey’s deposition before the U.S. Commodity Futures Trading Commis- sion (CFTC) as evidence of his innocence, but the district court excluded it as inadmissible hearsay and eventually convicted Sklena of seven of the nine charged counts. Sklena now appeals. He argues that the government’s evidence was insufficient to support his convictions, and in the alternative, that the district court abused its discretion by excluding Sarvey’s deposition testimony. Although we are satisfied that the government’s evi- dence was sufficient, we conclude that the district court erred by excluding Sarvey’s previous testimony. We therefore reverse Sklena’s convictions and remand for further proceedings.

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