Petition for Writ of Certiorari — Casey Peebles, Petitioner v. United States

Supreme Court briefJul 25, 2018

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______________

No.

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In the

Supreme Court of the United States

October Term 2017

Casey Peebles,

Petitioner,

United States of America,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

Petition for a Writ of Certiorari

Thomas Patrick Deaton Jr.

Counsel of Record

Attorney at Law

6614 Clayton Rd. #231

St. Louis, Missouri 63117

(314) 283-2400

pat@TPDeaton.com

July 25, 2018

Question Presented

In Petitioner’s jury trial on federal drug offenses, the district court

allowed a prosecution witness to testify to out-of-court statements made by

a nontestifying codefendant that implicated Petitioner in a conspiracy to

possess heroin with the intent to distribute it. The district court relied on

Federal Rule of Evidence 801(d)(2)(E) for admission of the out-of-court

statements. In United States v. Inadi, 475 U.S. 387 (1986), this Court held

that the confrontation clause did not require a showing of unavailability of

the declarant as a condition to admission of out-of-court statements by a

nontestifying coconspirator. In Bourjaily v. United States, 483 U.S. 171

(1987), this Court held that the Confrontation Clause did not require the

district court to make inquiry into the independent indicia of reliability of

the out-of-court statements. But in Inadi and Bourjaily, the out-of-court

statements had been recorded. In Petitioner’s trial, however, there were no

recordings of the original statements, just testimony from a police informant

about what the nontestifying codefendant allegedly said.

Do Inadi and Bourjaily adequately protect an accused’s Fifth

Amendment due process right to a fair trial and his Sixth Amendment right

to confrontation when the out-of-court statements admitted under Fed. R.

Evid. 801(d)(2)(E) were not recorded and are a significant part of the

prosecution’s case?

Parties to the Proceedings Below

The Petitioner, Casey Peebles, was the defendant in the district court

and the appellant in the Eighth Circuit. He has been represented at all

times in the United States District Court (Eastern District of Missouri) and

United States Court of Appeals (Eighth Circuit) by Thomas Patrick Deaton

Jr., an attorney in private practice as a solo practitioner, whose mailing

address is 6614 Clayton Road, #231, St. Louis, Missouri 63117.

Respondent, the United States of America, has been represented by

United States Attorneys Richard G. Callahan and Jeffrey B. Jensen,

Eastern District of Missouri; Acting United States Attorney Carrie

Costantin; and Assistant United States Attorneys Michael A. Reilly,

Edward L. Dowd III, Stephen R. Casey, and Tiffany G. Becker, 111 South

Tenth Street, 20th Floor, St. Louis, Missouri 63102. Respondent prosecuted

the case in the district court and was the appellee in the Eighth Circuit.

There were several codefendants in the district court under the initial

and superseding indictments. Casey Peebles was the only defendant who

went to trial. The codefendants were Thomas Rander, Michael E. Shorty,

Joseph Rander, Bobby Gene Rander, Benjamin Lowe, Quantiae Harris,

Daquarious Blackwell, Tyrone Short Sr., Hartzell Moore Sr., Leah Douglas,

and Lisa Rander.

Table of Contents

Question Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Parties to the Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Opinions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional and Statutory Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Reasons for Granting the Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

This petition presents an important federal question

that should be settled by this Court: whether Fed. R.

Evid. 801(d)(2)(E) should allow admission of testimony

about unrecorded nontestimonial statements made by a

nontestifying codefendant who was available to testify

for the prosecution–testimony that otherwise would not

be admissible according to the rule against hearsay, Fed.

R. Evid. 802.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

This petition presents a troublesome evidentiary issue

that commonly arises in federal trials on charges of

conspiring to possess illegal drugs with the intent to

distribute them: the relationship between testimony

under Fed. R. Evid. 801(d)(2)(E) and sentence leniency

under 18 U.S.C. § 3553(e).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

This petition presents the Court with an excellent case for

clarifying the application of Fed. R. Evid. 801(d)(2)(E) because

of the lack of evidence connecting Petitioner to a drug-dealing

conspiracy independent of the out-of-court statements by the

nontestifying codefendant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Appendix Table of Contents

1. United States v. Peebles, No. 17-1126 (8th Cir. Apr. 30, 2015). . . . . 1a–11a

2. Judgment in a Criminal Case (ECF Doc. 706).. . . . . . . . . . . . . . . . 12a–18a

3. Trial Transcript Regarding Fed. R. Evid. 801(d)(2)(E)

(Trial Tr., Vol. II, 199–206.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19a–26a

4. Order denying petition for rehearing and rehearing en banc. . . . . . . . . 27a

5. U.S.S.G. § 5K1.1 (Guidelines Manual Nov. 1, 2015). . . . . . . . . . . . 28a–29a

Table of Authorities

Cases:

Page

Bourjaily v. United States, 483 U.S. 171 (1987). . . . . . . . . . 13, 14, 16–18, 26

Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . 23

In re Murchison, 349 U.S. 133 (1955).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ohio v. Roberts, 448 U.S. 56 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Bell, 573 F.2d 1040 (8th Cir. 1978). . . . . . . . . . . . . . . . . . . 24

United States v. Gil, 604 F.2d 546 (7th Cir. 1979).. . . . . . . . . . . . . . . . . . . . 18

United States v. Goldberg, 105 F.3d 770 (1st Cir. 1997). . . . . . . . . . . . . . . . 18

United States v. Inadi, 475 U.S. 387 (1986).. . . . . . . . . . . . . 13, 14, 18, 22, 26

United States v. Peebles, 883 F.3d 1062 (8th Cir. 2018). . . . . . . . . . . . . . . . . 1

Whorton v. Bockting, 549 U.S. 406 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Constitutional and Statutory Provisions:

U.S. Const. amend. V (Due Process Clause). . . . . . . . . . . 2, 13, 19, 22, 24, 26

U.S. Const. amend. VI (Confrontation Clause). . . . . . . . . . . . 2, 13, 19, 22, 26

18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 3553(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18, 20, 21

18 U.S.C. § 3742(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

21 U.S.C. § 841(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

21 U.S.C. § 841(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

21 U.S.C. § 841(b)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

21 U.S.C. § 841(b)(1)(B)(i).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–6

28 U.S.C. § 1254(1) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Rules:

Sup. Ct. R. 10(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Sup. Ct. R. 13.1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fed. R. Evid. 801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–4, 10, 13, 15

Fed. R. Evid. 801(d)(2)(E). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 14–22, 24

Fed. R. Evid. 802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 13, 15

Fed. R. Evid. 803. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fed. R. Evid. 803(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fed. R. Evid. 803(4).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fed. R. Evid 803(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fed. R. Evid. 803(8).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Fed. R. Evid. 805. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Other Authorities:

Fed. R. Evid. 803, Advisory Committee Notes.. . . . . . . . . . . . . . . . . . . . 16, 18

U.S.S.G. § 5K1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

David S. Davenport, The Confrontation Clause and the Co-Conspirator

Exception in Criminal Prosecutions: A Functional Analysis,

85 Harv. L. Rev. 1378 (1972). . . . . . . . . . . . . . . . . . . . . . . 15, 19–20, 22

Joseph H. Levie, Hearsay and Conspiracy: A Reexamination of the CoConspirators’ Exception to the Hearsay Rule,

52 Mich. L. Rev. 1159 (1954). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

Ben L. Trachtenberg, Confronting Coventurers: Coconspirator Hearsay,

Sir Walter Raleigh, and the Sixth Amendment Confrontation

Clause, 64 Fla. L. Rev. 1669 (2012).. . . . . . . . . . . . . . . . . . . . . . . 24–26

Jessica K. Weigel, Hearsay and Confrontation Issues Post-Crawford:

The Changing Course of Terrorism Trials, 89 N.Y.U. L. Rev. 1488

(2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vii

Petition for Writ of Certiorari

Casey Peebles respectfully petitions for a writ of certiorari to review

the judgment and opinion of the United States Court of Appeals for the

Eighth Circuit entered in this proceeding on March 5, 2018, which affirmed

his two concurrent sentences of 120 months’ imprisonment imposed by the

United States District Court for the Eastern District of Missouri on January

3, 2017.

Opinions Below

The slip opinion of the court of appeals, United States v. Peebles, 883

F.3d 1062 (8th Cir. 2018), appears in the Appendix to this petition. The

Eighth Circuit denied petitions for rehearing and rehearing en banc on May

10, 2018. Although there is no reported opinion by the district court, a copy

of the Judgment in a Criminal Case filed January 17, 2014, in Eastern

District of Missouri case number 4:14-cr-00345-ERW-10 appears in the

Appendix. A portion of the trial transcript is included in the Appendix with

the district court’s ruling on the Fed. R. Evid. 801 issues at issue in this

petition.

Jurisdiction

The United States District Court for the Eastern District of Missouri

originally had jurisdiction pursuant to 18 U.S.C. § 3231, which provides

exclusive jurisdiction for offenses against the United States. Thereafter,

Petitioner appealed his sentence to the United States Court of Appeals for

the Eighth Circuit pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

The Eighth Circuit filed its opinion and judgment on March 5, 2018. The

court of appeals denied timely petitions for rehearing en banc and rehearing

by the panel on May 10, 2018. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1) and Sup. Ct. R. 13.1.

Constitutional and Statutory Provisions Involved

U.S. Const. amend. V

No person shall be held to answer for a capital, other

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in time

of War or public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb, nor

shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for

public use without just compensation.

U.S. Const. amend. VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in his

favor; and to have the assistance of counsel for his defense.

Fed. R. Evid. 801 Definitions That Apply to This Article;

Exclusions from Hearsay

(a)

Statement. “Statement” means a person’s oral assertion,

written assertion, or nonverbal conduct, if the person intended

it as an assertion.

(b)

Declarant. “Declarant” means the person who made the

statement.

(c)

Hearsay. “Hearsay” means a statement that:

(1)

(2)

(d)

the declarant does not make while testifying as the

current trial or hearing; and

a party offers in evidence to prove the truth of the

matter asserted in the statement.

Statements That Are Not Hearsay. A statement that meets the

following conditions is not hearsay:

(1)

A Declarant-Witness’s Prior Statement. The declarant

testifies and is subject to cross-examination about a

prior statement, and the statement:

(A)

is inconsistent with the declarant’s testimony and

was given under penalty of perjury at a trial,

hearing, or other proceeding or in a deposition;

(B)

is consistent with the declarant’s testimony and is

offered:

(C)

(2)

(i)

to rebut an express or implied charge that

the declarant recently fabricated it or acted

from a recent improper influence or motive

in so testifying; or

(ii)

to rehabilitate the declarant’s credibility as

a witness when attacked on another

ground; or

identifies a person as someone the declarant

perceived earlier.

An Opposing Party’s Statement. The statement if offered

against an opposing party and:

(A)

was made by the party in an individual or

representative capacity;

(B)

is one the party manifested that it adopted or

believed to be true;

(C)

was made by a person whom the party authorized

to make a statement on the subject;

(D)

was made by the party’s agent or employee on a

matter within the scope of that relationship and

while it existed; or

(E)

was made by the party’s coconspirator during and

in furtherance of the conspiracy.

The statement must be considered but does not by itself establish the

declarant’s authority under (C); the existence or scope of the relationship

under (D), or the existence of the conspiracy or participation in it under (E).

Fed. R. Evid. 802. The Rule Against Hearsay

Hearsay is not admissible unless any one of the following provides

otherwise:

•

a federal statute;

these rules; or

other rules prescribed by the Supreme Court.

21 U.S.C. § 841(a)(1)

(a) Unlawful acts

Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally–

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute or

dispense, a controlled substance; or

21 U.S.C. § 841(b)(1)(B)(i)

(b) Penalties

Except as otherwise provided in section 859, 860, or 861

of this title, any person who violates subsection (a) of this

section shall be sentenced as follows:

(B)

In the case of a violation of subsection (a) of this section

involving–

(i)

100 grams or more of a mixture or substance containing

a detectable amount of heroin;

If any person commits such a violation after a prior conviction

for a felony drug offense has become final, such person shall be

sentenced to a term of imprisonment which may not be less

than 10 years and not more than life imprisonment . . . .

18 U.S.C. 3553(e)

Limited authority to impose a sentence below a statutory

minimum.—Upon motion of the Government, the court shall

have the authority to impose a sentence below a level

established by statute as a minimum sentence so as to reflect a

defendant’s substantial assistance in the investigation or

prosecution of another person who has committed an offense.

Such sentence shall be imposed in accordance with the

guidelines and policy statements issued by the Sentencing

Commission pursuant to section 994 of title 28, United States

Code.

Statement of the Case

This is a direct appeal of Casey Peebles’s convictions after a jury trial

for conspiring to distribute 100 grams or more of a substance containing

heroin (Count II) and for possessing 100 grams or more of a mixture or

substance containing heroin with the intent to distribute it (Count V). (ECF

Doc. 621 in case number 4:14-cr-00345-ERW-10.) The district court imposed

two concurrent sentences of 120 months’ imprisonment, two concurrent

eight-year terms of supervised release, and a $200.00 special assessment

(ECF Doc. 706).

A grand jury superseding indictment filed on October 15, 2015,

charged Petitioner Peebles with two felony offenses involving heroin in

violation of 21 U.S.C. § 841(b)(1)(B)(i). (ECF Doc. 328.) Count II charged

Tyrone Short Sr., Hartzell Moore Sr., and Casey Peebles with conspiring

with each other and with Michael E. Shorty, Joseph Rander, and other

persons to distribute heroin and to possess heroin with the intent to

distribute it. (ECF Doc. 328 at 2–3.) Count V charged Casey Peebles, acting

together with Leah Douglas and others on or about April 2, 2013, with

possessing 100 grams or more of a mixture or substance containing heroin,

also in violation of 21 U.S.C. § 841(b)(1)(B)(i). (ECF Doc. 328 at 4.)

Petitioner Peebles’s indictment resulted from his arrest on the night

of April 2, 2013, after he left an apartment at 5911A Highland Avenue in

the City of St. Louis. (TR., Vol. II, 278–84.) On that night police officers

seized 247.3 grams of a mixture containing heroin from a passenger, Leah

Douglas, in the Land Rover Petitioner Peebles was driving. (Trial Tr., Vol.

III, 90.) A group of people, Joseph Rander and others related to him, used

the Highland Avenue apartment to distribute controlled substances in St.

Louis that they had obtained in California. (Trial Tr., Vol. II, 161–89.)

Petitioner Peebles testified in his defense that he did not know Leah

Douglas possessed heroin on the night of April 2. (Trial Tr., Vol. IV, 114.)

He also testified that he did not know any of the Randers or their associates

in their drug trafficking business. (Trial Tr., Vol. IV, 136.)

Law officers’ first contact with the Randers in the St. Louis

metropolitan area was on September 29, 2011, on Interstate 70 in St.

Charles County, Missouri. (Trial Tr., Vol. I, 7–8.) Almost a year later, on

August 27, 2012, an agent of the Drug Enforcement Administration seized

1,974 grams of cocaine from Marnina James after stopping her at a bus

station in Albuquerque, New Mexico. (Trial Tr., Vol. I, 33–42.) Marnina

James had transported cocaine to St. Louis about twenty times. (Id. at

13–14.)

Police arrested Quantiae Harris after a traffic stop in St. Louis on

March 20, 2013. (Trial Tr., Vol. II, 151.) He began to provide law officers

with information about the Randers’ drug trafficking. (Trial Tr., Vol. II,

151–55, 192.) Quantiae Harris continued to act as an informant for the

police in April 2013. (Trial Tr., Vol. II, 224–25.) He told law officers that the

Randers had a kilogram of heroin in a second floor apartment at 5911A

Highland Avenue. (Id. at 207–09.) As a result of information from Harris,

police officers assigned to a DEA drug task force in the City of St. Louis

began watching 5911A Highland Avenue late in the evening of April 2,

2013. (Trial Tr., Vol. II, 272–77.) These officers were Joseph Somogye, Mark

Biondolino, Blake Witzman, and Michael Sisco. (Id.) They parked in the

5800 block of Highland Avenue with a view of the building at 5911A. (Trial

Tr., Vol. II, 273; Vol. III, 29.)

Around midnight, Casey Peebles arrived at that address driving a

Land Rover. (Trial Tr., Vol. II, 278.) Petitioner Peebles went inside the

apartment at 5911A Highland and returned to his Land Rover within five to

fifteen minutes. (Id.) Police received a telephone call from Quantiae Harris

saying that someone had just left the apartment with a quantity of heroin.

(Trial Tr., Vol. II, 281; Vol. III, 36.)

The police, who had seen Casey Peebles enter and leave the

apartment around midnight, followed his Land Rover to the end of the 5900

block at Highland’s intersection with Hodiamont Avenue. (Trial Tr., Vol. II,

281-82.) The police stopped the Land Rover after it made a right turn onto

Hodiamont. (Trial Tr., Vol. III, 36.) The police removed the driver

(Petitioner Peebles), the front seat passenger (Vernon Wescott), and the rear

seat passenger (Leah Douglas). (Trial Tr., Vol. II, 283–84.) At this point,

despite investigating the Randers’ drug trafficking since 2011, the officers

had never come across the name Casey Peebles or a nickname for him.

(Trial Tr., Vol. III, 132.)

The police did not find any heroin after initially searching Petitioner

Peebles, his passengers, and the Land Rover. (Trial Tr., Vol. III, 46–47.) The

police called for a woman police officer to do a more thorough search of Leah

Douglas. (Trial Tr., Vol. II, 45.) Officer Erin Bercherer arrived, searched

Douglas, and found a Ziploc bag of powdery substance in the right pants leg

of Douglas. (Id. at 45–46.) Laboratory analysis of the substance established

that the bag contained 247.3 grams of a substance containing heroin. (Trial

Tr., Vol. III, 90.)

A canine officer, Jermaine Jackson, also came to the scene of the

Land Rover stop. (Trial Tr., Vol. III, 190.) His canine partner, Barron Z, had

been trained to detect the odor of narcotics. (Trial Tr., Vol. III, 187.) Officer

Jackson walked his dog around the Land Rover and allowed him to go inside

front and rear seats of the Land Rover. (Trial Tr., Vol. III, 192–94.) Barron

Z alerted to the presence of the odor of illegal drugs on the passenger-side

door frame (Id. at 193) and in the rear seat (Id. at 194), where Leah Douglas

had been sitting (Trial Tr., Vol. III, 39).

A group of officers set out to arrest Petitioner Peebles on the October

2014 indictment on December 11, 2014. (Trial Tr., Vol. IV, 6–7; Defense

Exh. F.) The officers first went to home of Petitioner Peebles’s elderly

mother, Rose Peebles, at 1468 Engelcrest Drive in St. Louis County, a single

family house. (Trial Tr., Vol. IV, 9–10.) Petitioner Peebles was not there.

(Trial Tr., Vol. IV, 10.)

That same morning the officer next went to 2237 Outlook Drive in St.

Louis County. (Trial Tr., Vol. IV, 10.) This was a single family house

purchased by Donna Ward in 2009 before she married Petitioner Peebles in

November 2012. (Trial Tr., Vol. IV, 13.) Donna Ward Peebles came home

after 7:00 a.m. from her job as a nurse’s assistant at a hospital in St.

Charles, Missouri. (Trial Tr., Vol. IV, 22–23.) She discovered that her house

had been ransacked by the officers when they arrested Petitioner Peebles

there that morning. (Id. at 36–37.) The officers did not have a search

warrant for the house. They arrested Casey Peebles there. (Trial Tr., Vol.

IV, 36.)

A jury trial began in district court on October 3, 2016. (Trial Tr., Vol.

I, 4.) Over defense counsel’s objection based on Fed. R. Evid. 801, 802, and

805, Quantiae Harris testified to statements Joseph Rander said in the

apartment on the night of April 2. (Trial Tr., Vol. II, 198–206.) Harris

testified that Joseph Rander made the following statements to him:

•

Yes, he had called me and told me he needed me to work the

door. (Trial Tr., Vol. II, 207.)

•

He said Twin people fit’n to come through, we fit’n to be on, we

fit’n to be back together. (Trial Tr., Vol. II, 208.)

•

He had told me I need you to work the door; so when he come, I

need you to open the door for me. (Trial Tr., Vol. II, 209.)

•

Well, he had got a call, he had got a call from him telling him

he was about to pull up; so he had told me to go to the door.

(Trial Tr., Vol. II, 209.)

•

When he had left after I had notified the police that he had got

the drugs and left, when I had went back downstairs, that’s

when Joseph Rander had told me he had gave him 9 ounces, he

had fronted him. (Trial Tr., Vol. II, 222.)

Harris testified that he did not know the person’s name who came to

the door on the night of April 2 (Trial Tr., Vol. II, 211), and he had never

seen him before (Trial Tr., Vol. II, 257). Harris made a courtroom

identification of Petitioner Peebles (Trial Tr., Vol. II, 152) as the person who

took “stuff” from Joseph Rander on the night of April 2 (Trial Tr., Vol. II,

214.).

The panel rejected all six arguments on appeal by Casey Peebles:

•

the panel concluded the evidence was sufficient to convict

Petitioner Peebles on the counts of conspiracy and possession

with intent to distribute (Arguments I and II in Petitioner’s

Brief);

•

the panel concluded that Joseph Rander’s out-of-court

statements were admissible as non-hearsay statements by a

coconspirator under Fed. R. Evid. 801(d)(2)(E) (Argument III);

•

the panel ruled, in reliance on Ohler v. United States, 529 U.S.

753, 759-60 (2000), that Petitioner Peebles could not raise as

an issue about his impeachment by an Alford plea because he

introduced evidence of the plea during his direct examination

by defense counsel (Argument IV);

•

the panel concluded there was no violation of Fed. R. Evid. 702

in allowing a police officer to testify from his experience that

drug dealers use young women like Leah Douglas as drug

couriers (Argument V); and

•

the panel ruled that the district court did not abuse its

discretion in prohibiting cross-examination of police officers

about their participation in the 2006 World Series ticket

scandal (Argument VI).

Petitioner Peebles filed a timely petition for rehearing by the panel

and en banc. The Eighth Circuit denied those petitions on May 10, 2018.

This petition for a writ of certiorari follows within ninety days.

Reasons for Granting the Petition

This petition presents an important federal question that

should be settled by this Court: whether Fed. R. Evid.

801(d)(2)(E) should allow admission of testimony about

unrecorded nontestimonial statements made by a

nontestifying codefendant who was available to testify for the

prosecution–testimony that otherwise would not be

admissible according to the rule against hearsay, Fed. R.

Evid. 802.

There is a hole in this Court’s reasoning in its decisions with regard

to the Sixth Amendment’s confrontation clause and the admission of out-ofcourt statements by a nontestifying coconspirator under Fed. R. Evid. 801

(d)(2)(E). The hole leaves unprotected an accused’s Sixth Amendment right

to confrontation and his Fifth Amendment due process right to a fair trial

when the out-of-court nontestimonial statements were not recorded and are

a significant part of the prosecution’s case. This Court’s reasoning is

explained in two decisions, United States v. Inadi, 475 U.S. 387 (1986), and

Bourjaily v. United States, 483 U.S. 171 (1987). In those decisions, this

Court held that the Sixth Amendment’s Confrontation Clause did not

require (1) the showing of unavailability of the declarant as a condition to

admission of out-of-court statements of a nontestifying coconspirator (Inadi)

and (2) a trial court inquiry into the independent indicia of reliability of a

statement by a coconspirator (Bourjaily). United States v. Inadi, 475 U.S.

387, 399 (1986); Bourjaily v. United States, 483 U.S. 171, 182 (1987). In

those two cases, unlike Petitioner’s, there was no dispute that the

nontestifying declarant made the statements whose admission was at issue

because the Government presented recordings of the statements. In Inadi

and Bourjaily, therefore, there was no dispute that a coconspirator had

made the statements admitted under Fed. R. Evid. 801(d)(2)(E). This Court

reasoned that the Confrontation Clause’s reliability concerns were

adequately addressed because Fed. R. Evid. 801(d)(2)(E)’s approach to

statements of a coconspirator had “a long tradition of being made outside

the compass of the general hearsay exclusion.” Bourjaily, 483 U.S. at 183. It

is time for this Court to re-examine whether reliability should be a concern

in Confrontation Clause jurisprudence in the circumstances of Petitioner’s

case.

In Petitioner’s case (1) no evidence exists for the out-of-court

statements themselves except the testimony of a codefendant who is

testifying in the hope of a reduced sentence and (2) the out-of-court

statements are a significant part of the prosecution’s case. Petitioner

Peebles was at a disadvantage because, even according to the Government’s

version of events, Petitioner was not present when the statements were

allegedly made. The foundation for admission of the statements is further

weakened in Petitioner’s case because he disputed his involvement in any

conspiracy with the declarant or the witness. All the reasons for admitting

other types of hearsay because of their indicia of reliability as exceptions

under Fed. R. Evid. 803 to the rule against hearsay do not apply to Fed. R.

Evid. 801(d)(2)(E). Under the circumstances, the reliability of hearsay

evidence should be based on more that just a past practice of admitting

coconspirator statements.

Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted in the statement. Fed. R. Evid. 801. Hearsay is

inadmissible unless otherwise allowed by federal statute, the Federal Rules

of Evidence, or other rules prescribed by the Supreme Court. Fed. R. Evid.

802. The Federal Rules of Evidence contain a number of exceptions to the

rule against hearsay regardless of the availability of the declarant as a

witness. Fed. R. Evid. 803. There are exceptions, for example, for

statements made as excited utterances, Fed. R. Evid. 803(2); statements

made for medical diagnosis or treatment, Fed. R. Evid 803(4); records of a

regularly conducted activity, Fed. R. Evid. 803(6); and public records, Fed.

R. Evid. 803(8). All of these exceptions are admissible even though they are

hearsay. The reasoning behind their admission is that their circumstances

make them reliable. In the case of business records, for example, the

authors “are generally disinterested parties.” David S. Davenport, The

Confrontation Clause and the Co-Conspirator Exception in Criminal

Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1403 (1972).

The Advisory Committee Notes to Fed. R. Evid. 803 provide explanations for

the hearsay exceptions in that rule.

In contrast, the so-called coconspirator exception to the rule against

hearsay in Rule 803(d)(2)(E) provides that a coconspirator’s statements are

not hearsay. There is no basis for admitting coconspirator statements for

their reliability because the statements are neither reliable nor

trustworthy, mainly because of the witness. In Petitioner’s case, witness

Quantiae Harris was a codefendant who had pleaded guilty and was

testifying in the hope of a reduced sentence. He had prior convictions. While

he was on pretrial release in this case, he picked up a new drug charge in

federal court to which he also pleaded guilty. It defies common sense to base

a law on the belief that conspiring criminals are likely to be telling the

truth. Joseph H. Levie, Hearsay and Conspiracy: A Reexamination of the CoConspirators’ Exception to the Hearsay Rule, 52 Mich. L. Rev. 1159, 1166

(1954). Petitioner’s case illustrates this. Something more should be required

for admission of coconspirator statements to assure their reliability when

offered as evidence of an accused’s guilt.

Petitioner presents this Court with the situation that concerned the

three dissenters in Bourjaily. See Bourjaily, 483 U.S. 171, 202 n.11

(Blackmun, J,, dissenting).

Given the fact that the reliability foundation of this exemption

is not as strong as that for traditional hearsay exceptions, I am

inclined to agree that the Confrontation Clause might well

demand a particularized reliability analysis where a statement

is a significant part of the prosecution’s case, before such

statements could be admitted over a defendant’s objection.

Id. (citations omitted). A significant part of the prosecution’s case against

Petitioner Peebles was the testimony of Quantiae Harris about Joseph

Rander’s alleged out-of-court statements on the night of April 2. Petitioner’s

counsel made a motion in limine before trial and a timely objection during

trial to Harris’s testimony. The Government used Harris’s testimony about

Rander’s alleged statements to connect Petitioner to the Randers’ drugdealing conspiracy. Prior to the night of April 2, 2013, law enforcement

officers, who had been investigating the Randers since September 2011, had

no information that Peebles had any connection to the Randers.

“The hearsay rule and the requirements of the Confrontation Clause

help to ensure that the evidence used to convict a defendant is reliable,

trustworthy, and, importantly, subject to adversarial testing.” Jessica K.

Weigel, Hearsay and Confrontation Issues Post-Crawford: The Changing

Course of Terrorism Trials, 89 N.Y.U. L. Rev. 1488, 1490 (2014). Under the

particular but not unusual circumstances of Petitioner’s case, the

Confrontation Clause demands “a particularized reliability analysis.”

Instead of routinely admitting Quantiae Harris’s testimony under Rule

801(d)(2)(E), the district court should have considered the totality of

circumstances of his testimony, including whether he was testifying as part

of a plea agreement in the hope of a reduced sentence.

This petition presents a troublesome evidentiary issue

that commonly arises in federal trials on charges of

conspiring to possess illegal drugs with the intent to

distribute them: the relationship between testimony

under Fed. R. Evid. 801(d)(2)(E) and sentence leniency

under 18 U.S.C. § 3553(e).

It is no coincidence that Inadi, Bourjaily, and Petitioner’s case all

involved charges of conspiring to commit federal offenses involving

controlled substances. The criminal docket at any federal courthouse is full

of drug cases. More than anything else, Fed. R. Evid. 801(d)(2)(E) is a rule of

necessity for law enforcement.

It has also been candidly proposed by commentators, and

implicitly acknowledged by the Advisory Committee for the

Federal Rules of Evidence, that the exception is largely a result

of necessity, since it is most often invoked in conspiracy cases

in which the proof would otherwise be very difficult and the

evidence largely circumstantial.

United States v. Gil, 604 F.2d 546, 549 (7th Cir. 1979) (citing Levie, Hearsay

and Conspiracy, 52 Mich. L. Rev. 920, 989 (1959); Advisory Committee’s

Note to Rule 801, quoted in 4 Weinstein’s Evidence at 801–36). “Frankly,

the underlying co-conspirator exception to the hearsay rule makes little

sense as a matter of evidence policy.” United States v. Goldberg, 105 F.3d

770, 775 (1st. Cir. 1997) (affirming conviction after trial in which out-of-

court conversations admitted under Fed. R. Evid. 801(d0(2)(E)). Under the

necessity rationale, it would be difficult for the prosecution to prove a

defendant’s participation in an illegal conspiracy without introducing

evidence of coconspirator statements to establish a defendant’s agreement to

participate in the conspiracy. That is especially true in most conspiracy

cases involving illegal drugs because everything about the enterprise is

illegal and conducted as much as possible in secret.

The foundation requirements for admission of out-of-court statements

under Fed. R. Evid. 801(d)(2)(E) do not protect the accused’s constitutional

rights under the Confrontation and Due Process Clauses. Rule 801(d)(2)(E)

requires that the out-of-court statement “was made by the party’s

coconspirator during and in furtherance of the conspiracy.” Caselaw

requires evidence independent of the statements themselves to lay the

foundation. “[T]he independent evidence requirement is not so much a

requirement as an excuse.” Davenport, 85 Harv. L. Rev. at 1388.

By allowing the prosecution to appeal to independent evidence

as an excuse for introducing otherwise unreliable hearsay, the

courts are saying in effect: “As long as you can show me one

piece of independently admissible evidence tending to prove

the defendant’s guilt, we will deny the right of confrontation as

to these other pieces.”

Id. at 1390.

It is one thing to say that because we hate all conspirators, we

will treat conspirators especially harshly. But it is quite

another to say that because we hate conspirators, we will treat

harshly everyone accused of conspiracy.

Id. at 1391 (Italics in the original) (footnote omitted). The Government

accused Petitioner Peebles of conspiring to commit drug crimes, but he

denied participating in any drug crimes or having any relationship with the

Rule 801(d)(2)(E) declarant, Joseph Rander.

The federal sentencing guidelines for drug cases provide powerful

incentives for offenders, once indicted, to race to the courthouse to cooperate

with Government in the hope of a favorable guilty plea agreement. See

U.S.S.G. § 5K1.1, Substantial Assistance to Authorities. In addition to those

Guidelines, mandatory minimum sentences set by statute limit the

sentencing authority of the district court. See 21 U.S.C. §§ 841(b)(1)(A) and

841(b)(1)(B). Only the Government can request a sentence below a

mandatory minimum set by statute–but only if the offender has provided

“substantial assistance” to the Government. 18 U.S.C. §§ 3553(e).

“Substantial assistance” usually means participating in a proffer interview

with government prosecutors and law enforcement agents. It often means

testifying for the Government in a drug conspiracy trial. It is then up to the

Government to decide whether the defendant’s assistance has been

substantial and enough to qualify for a motion for downward departure

either below the Guidelines sentencing range or below the mandatory

minimum sentence. 18 U.S.C. § 3553(e).

The reward for substantial assistance in the form of testimony can be

substantial. In Petitioner’s case, for example, the codefendant Quantiae

Harris was facing a sentence of at least ten years and possibly as high as

twenty years. (Trial Tr., Vol. II, p. 160.) Harris received concurrent

sentences of only fifty-five months in two federal drug cases, the first case in

which he was a codefendant with Petitioner and the second case for

distributing methamphetamine while on pretrial release in the first case.

Petitioner’s case, therefore, like so many other drug cases in federal court,

has a troublesome evidentiary issue because of the relationship between

testimony allowed under Fed. R. Evid. 801(d)(2)(E) and incentives for

lenient sentencing in 18 U.S.C. § 3553(e).

This petition presents the Court with an excellent case

for clarifying the application of Fed. R. Evid.

801(d)(2)(E) because of the lack of evidence connecting

Petitioner to a drug-dealing conspiracy independent of

the out-of-court statements by the nontestifying

codefendant.

Petitioner Peebles testified that he dropped by the apartment on the

night of April 2 to pick up a woman, not to obtain drugs. The admission of

the out-of-court statements by a nontestifying codefendant was important

evidence for the Government. Although the Government had been

investigating the Randers’ drug dealing for months, the Government did not

have any indication of Petitioner’s involvement until the night of his arrest

outside an apartment used by the Randers to distribute drugs. The

Government’s evidence that Petitioner was involved in drug-dealing

depended on the testimony of two codefendants, Quantiae Harris and Leah

Douglas. The latter witness was not a member of the Randers’ drug-dealing

conspiracy.

When testimony is offered as evidence of guilt under Fed. R. Evid.

801(d)(2)(E) under these circumstances, an accused’s due process right to a

fair trial and his right to confront the evidence against him demand, at a

minimum, heightened scrutiny of the reliability and trustworthiness of the

evidence. An even better approach would also require the prosecution to

make an affirmative showing that the declarant is unavailable. See

Davenport, 85 Harv. L. Rev. at 1403. This Court has declined to hold that

the Confrontation Clause required a showing of unavailability as a

condition to admission of out-of-court statements by a nontestifying

coconspirator. United States v. Inadi, 475 U.S. 387, 399 (1986). In Inadi,

this Court did not consider whether the Due Process Clause’s fundamental

fairness guarantee required a showing of unavailability. “There is

something innately unfair and reminiscent of trial by affidavit in a process

that allows the prosecutor to build a case with hearsay, while the defendant

is forced to scramble about and exhaust his own, often scarce resources to

attempt to produce the declarants.” Davenport, 85 Harv. L. Rev. at 1403.

That is especially true in Petitioner’s case because the declarant, Joseph

Rander, would have been in the Bureau of Prisons serving a sentence of

sixty months imposed on March 3, 2016, at the time of Petitioner’s trial in

October 2016.

Without at least heightened scrutiny in a case like this, there will be

a lack of confidence in the correctness of a guilty verdict–and for good

reason. In August 2017 following Petitioner’s October 2016 trial,

Petitioner’s counsel received an affidavit from Joseph Rander in which he

denied making any of the statement Quantiae Harris attributed to him, and

furthermore, denied being present on the night of April 2 and denied

knowing or having any relationship with Petitioner Peebles. (ECF Doc. 7561, Exh. A.) Rander’s affidavit was the subject of a motion for new trial based

on newly discovered evidence. (ECF Doc. 756.) The district court denied the

motion with an evidentiary hearing (ECF Doc. 768), and an appeal of that

ruling is pending in the Eighth Circuit as Appeal No. 18-1369.

Crawford’s protection against testimonial hearsay is of no help

against unrecorded nontestimonial hearsay admitted under Rule

801(d)(2)(E) during the testimony of a codefendant testifying as part of a

plea bargain for a reduced sentence. “Under Crawford . . . the Confrontation

Clause has no application to such statements and therefore permits their

admission even if they lack indicia of reliability.” Whorton v. Bockting, 549

U.S. 406, 420 (2007) (holding in a habeas corpus case that Crawford did not

announce a watershed rule of criminal procedure that could be applied

retroactively). Before Crawford, “under Roberts, an out-of-court

nontestimonial statement not subject to cross-examination could not be

admitted without a judicial determination regarding reliability.” Id. In the

instant situation, the accused needs protection of his right to a fair trial by

the Fifth Amendment’s Due Process Clause.

[i]f the Confrontation Clause does not apply to coventurer

hearsay uttered in a nontestimonial manner, criminal

defendants need not be helpless against the revisionist

coconspirator hearsay exception; they should seek shelter in

due process.

Ben Trachtenberg, Confronting Coventurers: Coconspirator Hearsay, Sir

Walter Raleigh, and the Sixth Amendment Confrontation Clause, 64 Fla. L.

Rev. 1669, 1704 (2012). Fundamental fairness is the main component of

constitutional due process protection. The fundamental fairness doctrine

comes from the belief “that a fair trial in a fair tribunal is a basic

requirement of due process.” In re Murchison, 349 U.S. 133, 136 (1955).

This Court should consider whether admission of unrecorded

nontestimonial statements under Fed. R. Evid. 801(d)(2)(E) by an unreliable

witness can be part of a fair trial according to current trial procedures in

federal court. Although an accused is presumed innocent until a unanimous

jury verdict determines the accused is guilty beyond a reasonable doubt, the

trial judge determines whether the accused and the declarant of the out-ofcourt statements were members of a conspiracy. In making a determination

on the admissibility of evidence under Fed. R. Evid. 103, caselaw allows the

judge to make the determination on a preponderance-of-the-evidence

standard. United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). How

fair is it for the trial judge to make that determination on so low a burden of

proof for unrecorded statements testified to by a codefendant testifying as

part of a plea agreement for a reduced sentence before the jury decides

whether the accused is guilty of a conspiracy or of any other crimes?

Stricter scrutiny or exclusion of unrecorded out-of-court statements

by an alleged coconspirator will not be a hardship on law enforcement.

Agents and officers will still have all the usual means of investigation to

assist them.

•

They can use trap-and-trace devices and pen registers to learn

the telephone numbers for out-going and incoming calls on a

target’s phone.

•

Officers and agents can obtain a court order to intercept

telephone conversations and communications such as text

messages.

•

Officers and agents can make undercover purchases of drugs.

•

They can conduct surveillance outside of houses, apartments,

or businesses where they suspect drug-dealing is occurring and

obtain search warrants for those locations.

All of these means of investigation would collect more reliable evidence of

guilt than the admission of unrecorded out-of-court statements by a

nontestifying codefendant as evidence of the accused’s participation in a

conspiracy.

“The absence of case law construing the application of the Due

Process Clauses to unreliable hearsay is easily explained: The exclusion of

such hearsay was until recently the job of the Confrontation Clause. . . .

Crawford and subsequent cases has laid the groundwork for new due

process arguments.” Trachtenberg, 64 Fla. L. Rev. at 1706. This Court

needs to fill the hole left by Inadi and Bourjaily. Only trustworthy and

reliable evidence should be admissible against an accused in a criminal

case. Whether grounded in the Due Process Clause or Confrontation Clause,

Petitioner Peebles’s relief should be a new trial or a remand for the district

court to inquire into independence evidence of the statements’ reliability

and trustworthiness and Joseph Rander’s availability.

Conclusion

The Court should grant the petition for a writ of certiorari under Sup.

Ct. R. 10(a).

Respectfully submitted,