holding “[w]e decline to speculate on the state of this record that the trial court would have been satisfied that sufficient foundational facts were presented to satisfy the co-conspirator exception, if the prosecutor had argued this theory in a timely manner. For us to sustain a theory of admissibility not presented below, would unfairly rob appellants of the opportunity to argue the weight, sufficiency and trustworthiness of the evidence to establish a proper foundation before the trial judge, or to offer proof to controvert the facts now relied upon by the government.”
How later courts described this case
- holding “[w]e decline to speculate on the state of this record that the trial court would have been satisfied that sufficient foundational facts were presented to satisfy the co-conspirator exception, if the prosecutor had argued this theory in a timely manner. For us to sustain a theory of admissibility not presented below, would unfairly rob appellants of the opportunity to argue the weight, sufficiency and trustworthiness of the evidence to establish a proper foundation before the trial judge, or to offer proof to controvert the facts now relied upon by the government.”
- holding that tax returns were properly admissible because the jury could properly infer that the defendant's large expenditures must have come from an illegal source
- remanding the case to the lower court for an in camera hearing and allowing the court discretion in conducting that in camera hearing; court could permit defense counsel to be present or could merely allow defense counsel to submit questions
- stating that “the telephone is highly necessary to an unlawful organization selling cocaine out of private residences”
Written by the judges who cited it.
The opinion
NORRIS, Circuit Judge,
concurring in part:
I agree with the majority that the conviction must be reversed because the district court committed prejudicial error in denying disclosure of the identity of the informer. I write separately on the issue of the admissibility of the ledgers into evidence, however, because I believe that the Ninth Circuit cases relied upon by the majority, although controlling precedent, are incorrectly decided.
The majority correctly notes that the Ninth Circuit, unlike other circuits, has refused to adopt, the rule that once a statement falls within a well-established exception to the hearsay rule, it is per se admissible without .violating the confrontation clause of the sixth amendment. 1 See, e.g., United States v. Tille, 729 F.2d 615, 621 (9th Cir.1984); United States v. Arbalaez, 719 F.2d 1453 , 1459 (9th Cir.1983); United States v. Perez, 658 F.2d 654 , 660 & n. 5 (9th Cir.1981). In this circuit, only United States v. Bernal, 719 F.2d 1475, 1479 (9th Cir.1983), has accepted the rule of per se admissibility. In my view, Bernal takes the correct approach to this question. The rule that “statements which fall within a ‘firmly rooted’ exception to the hearsay rule presumptively possess sufficient indicia of reliability so as to satisfy the confrontation clause,” id., is clearly mandated by Supreme Court precedent and should be adopted by this circuit.
I believe that the Ninth Circuit cases rejecting per se admissibility are based on a misreading of Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), and Dutton v. Evans, 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970). In Ohio v. Roberts, the Supreme Court held that when a hearsay declarant is not present for cross-examination at trial, the confrontation clause requires a showing that the declarant is unavailable and that the statement bears adequate “indicia of reliability.” 448 U.S. at 66 , 100 S.Ct. at 2539 . The *813 Court then stated flatly, however, that “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. In Ohio v. Roberts, the Court dealt with the well-established “former testimony” exception to the hearsay rule — recognized in the Federal Rules of Evidence. Fed.R.Evid. 804(b)(1). In Dutton v. Evans, by contrast, the Court dealt with an unusual Georgia state co-conspirator hearsay exception which, unlike the federal rule, allows into evidence a co-conspirator’s out-of-court statement made during the concealment phase of the conspiracy. 400 U.S. at 78 , 91 S.Ct. at 214 . Thus, it is only in the context of a controversial, not “firmly rooted,” hearsay exception that the Supreme Court has required a showing of particular “indi-cia of reliability.” Id. at 89 , 91 S.Ct. at 220 .
Our cases do not adequately recognize the significance of the distinction between the “firmly rooted” exception involved in Ohio v. Roberts and the unusual exception at issue in Dutton . Only when, as in Dut-ton, a court deals with an exception to the hearsay rules which is not widely recognized must a court go beyond the question of admissibility under the hearsay rules in order to resolve the confrontation clause issue. In the present case, we are dealing with the well-established co-conspirator exception, an exception included within the Federal Rules of Evidence. Fed.R.Evid. 801(d)(2)(E). Therefore, our decision should be controlled by the Supreme Court’s clear statement that “[reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Ohio v. Roberts, 448 U.S. at 66 , 100 S.Ct. at 2539 . Dutton v. Evans should not enter into our analysis.
In my view, the correct approach to the question whether the ledgers in this case are admissible is the two-step analysis set out in United States v. DeGudino, 722 F.2d 1351, 1355-56 (7th Cir.1983). First, the ledgers must be authenticated or identified. Fed.R.Evid. 901(a). Second, the ledgers must be shown to be co-conspirator statements admissible under rule 801(d)(2)(E) of the Federal Rules of Evidence. DeGudino makes clear that circumstantial evidence may serve both to authenticate documents even when the de-clarant is unknown and to establish documents as the statements of co-conspirators. United States v. DeGuidino, 722 F.2d at 1355-56 .
In DeGudino , the court discussed whether “polio lists,” also known as drug ledgers, were sufficiently reliable to be admitted under the co-conspirator’s exception. As in the case before us, the authors of the ledgers in DeGudino were unknown. The court concluded, however, that there was ample circumstantial evidence both to authenticate the ledgers and to admit them under the co-conspirator’s exception.
The court in DeGudino considered first the question of authenticity under rule 901(a) of the Federal Rules of Evidence. The court found that
[t]he contents of the polio lists consist of names of smuggled aliens and their sponsors, dates, telephone numbers, dollar figures, and records of payment. Given the testimony outlining the smuggling techniques of the operation, the contents of the polio lists provided prima facie evidence that they were written [sic] by someone- involved in the smuggling conspiracy. Furthermore, the lists were seized from the Castillo house, the headquarters of the operation, and this also provides prima facie evidence of their authenticity.
Id. at 1355 .
The ledgers at issue in the case now before us identified the organization’s members and listed disbursements of cash and cocaine. The ledgers, bearing the fingerprints of the defendants, were found in a house serving as a headquarters of the operation. Undercover transactions with members of the conspiracy and expenditures by defendants were correlated to entries in the ledgers. As in DeGudino , the defendants here did not -rebut this evidence authenticating the ledgers as written by *814 someone in a conspiracy to distribute drugs.
DeGudino next turned to the second inquiry: whether the polio lists were admissible under the co-conspirator’s exception. The court found that
the contents of the lists clearly show that their author was familiar with the workings of the conspiracy. The fact that the lists contain dates and records of payment is evidence that they were written during the course of conspiracy. The names, dollar figures, and telephone numbers are evidence that the lists were utilized to maintain information necessary to continue the smuggling activities of the conspiracy. Since this evidence was not countered by any evidence that the lists were made at any time other than during the conspiracy or that the lists were not made to further the conspiracy, we hold that the lists were admissible as co-conspirator’s statements.
Id. at 1856.
Similar circumstantial evidence regarding the purpose, contents and author(s) of the ledgers exists in the present case. Because this evidence was not rebutted by the defendants, the ledgers here are admissible as co-conspirator’s statements.
Although their argument is unclear, appellants apparently also contend that even if the ledgers are admissible for the purposes of proving the existence of the conspiracy, the ledgers still must surmount another “reliability” inquiry in order to sustain a conviction on the substantive counts. Appellant's Supplemental Brief at 8. This argument is without merit. The cases cited by appellants in support of this proposition actually are concerned with the different question whether an adequate foundation had been laid to establish admissibility of statements under the co-conspirator exception. United States v. Weiner, 578 F.2d 757, 768 (9th Cir.1978); United States v. Robinson, 651 F.2d 1188, 1196 (6th Cir.1981).
In sum, I believe that the Ninth Circuit cases on the confrontation clause issue are in conflict with Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), and with the cases of other circuits. The isolation of this circuit on the question of per se admissibility is a mistaken, indeed puzzling, stance. Since the Supreme Court drafted the hearsay rules included within the Federal Rules of Evidence, we can assume that the Court did not believe these rules violated the confrontation clause.
. For cases adopting the rule that statements which fall within a "firmly rooted" exception to the hearsay rule presumptively possess sufficient indicia of reliability so as to satisfy the confrontation clause, see United States v. Lurz, 666 F.2d 69 , 80-81 (4th Cir.1981), cert. denied, 455 U.S. 1005 , 102 S.Ct. 1642 , 71 L.Ed.2d 874 (1982); United States v. Peacock, 654 F.2d 339, 349-50 (5th Cir.1981); United States v. Papia, 560 F.2d 827 , 836 n. 3 (7th Cir.1977); United States v. McManus, 560 F.2d 747, 750 (6th Cir. 1977), cert. denied, 434 U.S. 1047 , 98 S.Ct. 894 , 54 L.Ed.2d 798 (1978); Ottomano v. United States, 468 F.2d 269, 273 (1st Cir.1972), cert. denied, 409 U.S. 1128 , 93 S.Ct. 948 , 35 L.Ed.2d 260 (1973); United States v. Cox, 449 F.2d 679, 688-89 (10th Cir.1971), cert. denied, 406 U.S. 934 , 92 S.Ct. 1783 , 32 L.Ed.2d 136 (1972).