Petition — Palumbo v. United States
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80-1724
NO. APR ti
IN THE
Supreme Court of the United States
OCTOBER TERM, 1980
ANTONIO JOHN PALUMBO, II,
Petitioner,
V.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
MICHAEL A. YOUNG
GOLDBERGER, FELDMAN,
DUBIN & YOUNG
Counsel for Petitioner
401 Broadway — Suite 306
New York, N.Y. 10013
(212) 431-9380
——————————————
DICK BAILEY PRINTERS, 290 RICHMOND AVE.., S.I., N.Y. 10302
TEL.: (212) 447-5358 — (516) 222-2470 — (914) 682-0848
QUESTION PRESENTED
WHETHER THE PETITIONER WAS DENIED HIS SIXTH
AMENDMENT RIGHT OF CROSS-EXAMINATION WHEN
THE TRIAL JUDGE REFUSED TO ALLOW HIS COUNSEL
TO ASK ANY QUESTIONS OF THE GOVERNMENT'S PRIN-
CIPAL WITNESS CONCERNING THE REASONS FOR HER
HOSPITALIZATION IN A PSYCHIATRIC WARD WHILE
SHE WAS TESTIFYING AT TRIAL, AND HER PREVIOUS
ATTEMPT TO COMMIT SUICIDE.
TABLE OF CONTENTS
Page
cing wie er brtetececere ne: Ee OEE eins i
i geyser gana TE EE ETT EPP DT Cer ee 1
cae go ee EC Pe EE TORE er at 2
dT DPT ETE PPS Pr PRT eee tee 2
Reasons for Granting the Writ....................... 3
II Farr caNUR Shia ss saarerd bes cadeauuc iis 9 |
Appendix A— Decision of the United States Court of
Appeals for the Third Circuit .................0.005. la
Appendix B— Orders Denying Rehearing ............. 23a
CASES CITED
Page
Alford v. United States, 282 U.S. 687, 691(1931)............ 8
Davis v. Alaska, 415 U.S. 308, $16 (1974) .................. 3
Douglas v. Alabama, 380 U.S. 415, aC 3
Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir., 1979)......... 8
Foster v. United States, 282 F.2d 222 (10th Cir. 1960)........ 7
iv
Lindsey v. United States, 77 U.S. App. D.C. 133 F.2d 368
CUDTE) io cccccccaccsvnccccensccsersnscccsvcovcsavenses 8
Ramseyer v. General Motors Corp., 417 F.2d 859 (8th
Cir, 19GB) ca ccsccncnccccevcccencesasccsseccscsnncens 6
Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert.
RE, ee Cs PP EUNOED oc dre ceiccedsecstnivecsseses 6
United States v. Allegretti, 340 F.2d 254, (7th Cir. 1964),
cert denied, $6) U.S. 911 (1965) ........scuceerccscccscecs 6
United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir. 1979)4
United States v. Bass, 490 F.2d 846, 857,
i Ce, SE oo heed ieee sed MAN ene eveduceecseedaes 8
United States v. Cardillo, 316 F.2d 606, 613 (2d Cir.),
core. Gented, $75 U.S. GBB (IGES) 0. cccccccccccccscsccses 8
United States v. Dickens, 417 F.2d 958, 959 (8th Cir. 1969).... 4
United States v. Garrett, 542 F.2d 23, 26 (6th Cir. 1976)...... 8
United States v. Hess, 88 F. Supp. 559 (S.D.N.Y. 1950)....... 6
United States v. Leonard, 161 U.S. App. D.C. 36, 494 F. 2d
956, 968 (D.C. Cr. 1974) 0. cccccccvccccseccscccevsccnces 3
United States v. Partin, 493 F.2d 750 (1974) ....... 06.000 eee 3
United States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970).... 8
v
OTHER AUTHORITIES
SR | eT CT eee EPR CEE Te TUL ET eer
Rule 611(b), Federal Rules of Evidence ....................
Vol. IIIA. Wigmore on Evidence, Secs. 931-936 (1940).......
1
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
No.
ANTONIO JOHN PALUMBO, II,
Petitioner,
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The petitioner Antonio John Palumbo respectfully prays
that a writ of certiorari issue to review the judgment of the Court
of Appeals for the Second Circuit affirming the judgment of con-
viction entered against the petitioner by the United States District
Court for the Western District of Pennsylvania.
Opinions Below
The opinion of the Court of Appeals, not yet reported, ap-
pears in the Appendix hereto at p. 1. No opinion was rendered by
the District Court for the Western District of Pennsylvania.
2
JURISDICTION
The date of the judgment of the United States Court of Ap-
peals for the Second Circuit was January 19, 1981, which was also
the date of entry. Timely petitions for rehearing and rehearing en
banc were filed by both parties. Petitioner's petition was denied
on February 27, 1981. Respondent's petition was denied on
March 13, 1981. Copies of the orders denying rehearing are set
forth in the Appendix at 23. This Court’s jurisdiction is invoked
under Title 28, United States Code, Section 1254(1).
STATEMENT OF THE CASE
Petitioner will rely, for purposes of this petition, on the state-
ment of facts in the Third Circuit's decision, set forth in the ap-
pendix at 2-5.
3
REASONS FOR GRANTING THE WRIT
THE THIRD CIRCUIT’S DECISION IN THIS CASE,
HOLDING THAT PETITIONER WAS PROPERLY
PRECLUDED FROM ANY CROSS-EXAMINATION
ON A SUBJECT WHICH WAS DIRECTLY RELE-
VANT TO THE WITNESS’S MENTAL ABILITY TO
TESTIFY ACCURATELY, IS IN DIRECT CONFLICT
WITH THE GENERAL PRINCIPLES AR-
TICULATED BY THIS COURT IN CASES SUCH AS
ALFORD V. UNITED STATES, 282 U.S. 687 (1931) AND
THE SPECIFIC HOLDING OF THE FIFTH CIR-
CUIT IN UNITED STATES V. PARTIN, 493 F.2d 750
(1974).
An accused is constitutionally entitled to cross-examine the ~
government's witnesses (Amendment 6, United States Constitu-
tion; Douglas v. Alabama, 380 U.S. 415, 418 (1965); (see also
Rule 611(b), Federal Rules of Evidence). This right constitutes
his principal safeguard against false accusations. When a pro-
secution witness falsely incriminates a defendant, defense
counsel's opportunity to “delve into the witness’ story” or to
“discredit the witness” on cross-examination is the primary means
by which that perjury is revealed to the jury. Davis v. Alaska, 415
U.S. 308, 316 (1974). Consequently, both the Supreme Court and
the Circuit Courts have repeatedly held that defendants are en-
titled to “broad latitude” in cross-examination, particularly of the
government's principal witness. Alford v. United States, 282 U.S.
687 (1931); United States v. Leonard, 161 U.S. App. D. C. 36,
494 F. 2d 955, 963 (D.C. Cr. 1974).
On no occasion is this right more important than when the
government's case relies primarily on the testimony of an admit-
ted criminal, such as Mary Jane Pfaff, who has turned govern-
ment witness in order to minimize her own liability for the crimes
she has committed. Such a witness has powerful motives to
lie—i.e. to “make” cases for the government or to shift blame for
4
a particular crime away from himself. Moreover, her past
criminal conduct as well as her psychological or emotional pro-
blems may be such that she “would be less likely than the average
trustworthy citizen to be truthful in her testimony.” Davis v.
Alaska, supra, 415 U.S. at 316.
Consequently, when, as here, the government’s main witness
is also an admitted participant in the crimes charged, the defense
is entitled to the fullest range on cross-examination:
When the witness is the star witness, or was an accomplice or
participant in the crime for which the defendant is being
prosecuted, the importance of full cross-examination . . . is
necessarily increased.
United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir.
1979). See also United States v. Leonard, supra, 494 F.2d at
962-63; United States v. Partin, 493 F.2d 750, 763 (5th Cir.
1974); United States v. Dickens, 417 F.2d 958, 959 (8th Cir.
1969).
Mary Jane Pfaff's credibility was particularly subject to
question. She had been caught in possession of both counterfeit
bills and cocaine. By her own admission, she was one of the
“largest drug dealers in Pennsylvania” (170). Consequently, her
only hope of avoiding punishment for those crimes was to in-
gratiate herself with the government by incriminating other per-
sons. The temptation to “frame” someone with false accusations
in such circumstances is readily apparent.
In this context, Ms. Pfaff's mental ability to abide by her
oath to testify truthfully was particularly relevant. It was also
susceptible to serious challenge. Pfaff was a heavy drug user, who
admitted using LSD, Mescaline, hashish, marijuana, cocaine,
quaaludes, seconals, tuinals, nembutals, valiums, and sinequans.
She had used some of these drugs as recently as the weekend
before testifying at trial.
In fact, Ms. Pfaff's mental condition was such that her
psychiatrist had written to the Court, asking that she be excused
5
from testifying on the ground that being forced to testifying
might induce a psychotic episode or a new suicide attempt.
Describing Ms. Pfaff's emotional balance as “already precarious,”
the psychiatrist stated:
I am convinced that if she testifies against Mr. Palumbo, the
probability of a psychotic episode or a suicide attempt and
the necessity for hospitalization will be greatly increased.
(transcript of January 7 1980 at 17-18)
Although the trial judge nevertheless ruled Ms. Pfaff compe-
tent to testify (58), the relevancy of Ms. Pfaff's mental condition
to the present proceedings did not end with that determination.
Rather, as the Court stated in United States v. Partin, 493 F.2d
750, 762 (Sth Cir. 1974):
. . such evidence not only went to th» preliminary question
of competency but also to the jury question of credibility.
At the trial below, however, the trial judge prevented
defense counsel from pursuing inquiry into the single most impor-
tant fact relevant to Pfaffs mental state—her psychiatric
hospitalization during her testimony in this case. Ms. Pfaff began
testifying on January 9, 1980. The following weekend, before her
cross-examination was completed, she was admitted to the
psychiatric unit of Armstrong County Hospital. She was released
from there the following Monday just in time to return to the
stand to complete her testimony. Nevertheless, when defense
counsel attempted to inquire into this matter he was cut off by the
Court (482-83). Consequently, defense counsel was never able to
elicit for the jury the mental or emotional reasons for Pfaff's
hospitalization during trial or the extent to which those problems
may have affected her credibility as a witness.
Defense counsel was also precluded from disclosing to the
jury that this witness had attempted suicide in 1971, despite the
fact that her own Doctor had advised the court that he was con-
6
vinced that those suicidal tendencies and the underlying mental
problems which caused them would be reactivated by her
testimony in this case. That being the case, the jury was clearly
entitled to know that such emotional maladies were at work inside
this witness at the very time that they were being asked to credit
her testimony as the principal basis or the charges against ap-
pellant.
The trial judge’s ruling precluding the defense from cross-
examining this witness on these matters was reversible error. Since
the landmark case of United States v. Hess, 88 F. Supp. 559
(S.D.N.Y. 1950), in which the defense was permitted to inquire
into the mental instabilities of a key government witness named
Whittaker Chambers, the uniform rule in the Federal Courts has
been that evidence of mental instability is admissible for credibili-
ty purposes. United States v. Partin, supra, 493 F.2d at 762;
Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert. denied,
405 U.S. 1048 (1972); Ramseyer v. General Motors Corporation,
417 F.2d 859 (8th Cir. 1969); United States v. Allegretti, 340 F.2d
254, (7th Cir. 1964), cert. denied, 381 U.S. 911 (1965). As the
Court held in United States v. Partin, supra, 493 F.2d at 762:
The readily apparent principle is that the jury should within
reason, be informed of all matters affecting a witness's
credibility to aid in their determination of the truth [citation
omitted]. It is just as reasonable that a jury be informed of a
witness's mental incapacity . . . as it would be for the jury to
know that he then suffered an impairment of sight or hear-
ing. It all goes to the ability to comprehend, know, and cor-
rectly relate the truth.
This is so, whether the mental abnormality occurred “at the time
of observing the facts which he reports in his testimony or [as
here] at the time of testifying.” Sinclair v. Turner, 447 F.2d 1158
(10th Cir. 1971).
It should be noted that the restriction on cross-examination
of Pfaff in this case was more egregious than the restriction which
7
was found to require reversal in Partin. There, defense counsel
was at least permitted to question the government witness as to
the reasons behind his hospitalization; the trial court’s error was
its refusal to allow defense counsel to go further and present ex-
trinsic proof of the reasons for that hospitalization. Here, defense
counsel was not even permitted to ask Pfaff why she had been
hospitalized.
The trial court ruled that defense counsel could not establish
the reasons behind Pfaff's hospitalization by cross-examining her
on that subject unless he first produced medical testimony
establishing that her mental condition affected her truthfulness.
Such a restriction is clearly not the Jaw. Rather, mental abnor-
mality is presumed to be relevant to credibility (See United States
v. Hess, supra, and other cases cited above). Contrary to the
court's ruling, it is provable not only by extrinsic evidence, but
also by cross-examination of the witness whose testimony is being
challenged:
The fact of insanity or mental abnormality . . . may be pro-
vable, on cross-examination or by extrinsic evidence, as
bearing on credibility.
Sinclair v. Turner, supra, 447 F.2d at 1162 (emphasis added)
See also Foster v. United States, 282 F.2d 222 (10th Cir.
1960); Vol. IIIA. Wigmore on Evidence, §§ 931-936 (1940); cf.
United States v. Partin, supra, 493 F.2d at 762.
The Third Circuit apparently regarded this area of cross-
examination as a collateral matter going merely to the witness's
general credibility, and therefore governed by Rule 608 of the
Federal Rules of Evidence which vests the district judge with
broad discretion to limit such cross-examination. Consequently,
that Court concluded that the trial judge had not abused his
broad discretion by refusing to allow any inquiry on this par-
ticular subject (Appendix at 5 fn. 3).
8
Petitioner submits, however, that this inquiry concerned
more than merely general credibility, rather, it went directly to
the question of this witness's ability accurately to recall and report
the events which she had witnessed. As such, it was not collateral:
If the purpose of cross-examination is to explore more than
general credibility, the subject of inquiry is not collateral.
United States v. Garrett, 542 F.2d 23, 26 (6th Cir. 1976)
Dunbar v. Harris, 612 F.2d 690, 693 (2d Cir., 1979)
Moreover, it is important to recognize that
there is a difference between general credibility and answers
which might possibly establish untruthfulness with respect to
the specific events of the crime charged.
United States v. Garrett, supra, 542 F.2d at 26.
See also United States v. Cardillo, 316 F.2d 606, 613 (2d
Cir.), cert. denied, 375 U.S. 822 (1963).
Consequently, this area of cross-examination was governed
not by Rule 608 but rather by Rule 611(b). Under that Rule, the
trial judge’s discretion is significantly restricted:
The trial court does not have the same discretion in limiting
cross-examination [governed by Rule 611(b)] as in curtailing
the impeachment of a witness on a collateral issue [governed
by Rule 608(b)].
United States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970)
Where cross-examination on a particular subject is relevant
to some aspect of a witness's testimony other than general
credibility, the trial judge may not restrict the right of cross-
examination on that subject until that right has been “substan-
tially and fairly exercised” '’nited States v. Pugh, supra, 436 F.2d
at 225, quoting from Lindsey v. United States, 77 U.S. App. D.C.
133 F.2d 368 (1942); United States v. Bass, 490 F.2d 846, 857 n.
12 (5th Cir. 1974). Where, as here, the trial judge foreclosed all
inquiry into such an area, the defendant is entitled to a new trial:
9
The trial court cut off in limine all inquiry on a subject with
respect to which the defense was entitled to a reasonable
cross-examination. This was an abuse of discretion and pre-
judicial error.
Alford v. United States, 282 U.S. 687, 691 (1931).
The reasons behind Pfaff's psychiatric hospitalization, dur-
ing the very time that she was testifying in this case, were a matter
of paramount importance to the jury if they were to make an in-
formed decision as to the credibility of her testimony. The fact of
her earlier suicide attempt, and the danger that this very trial
might re-activate the mental and emotional problems which
had motivated it, were also highly relevant to this determination.
Petitioner was constitutionally entitled to cross-examine on these
matters. The trial judge’s ruling precluding him from doing so
was error requiring reversal of his conviction.
CONCLUSION
FOR THESE REASONS, A WRIT OF CERTIORARI
SHOULD ISSUE TO REVIEW THE JUDGMENT
AND OPINION OF THE COURT OF APPEALS FOR
THE THIRD CIRCUIT.
Respectfully submitted,
MICHAEL YOUNG
GOLDBERGER, FELDMAN, DUBIN & YOUNG
Counsel for Petitioner
401 Broadway — Suite 306
New York, N.Y. 10013
(212) 431-9380
APPENDICES
APPENDIX A—DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 80-1312
UNITED STATES OF AMERICA
v.
ANTONIC JOHN PALUMBO, II,
Appellant
APPEAL FROM A JUDGMENT OF CONVICTION OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 79-152)
Argued: September 15, 1980
Before: ADAMS, HUNTER and HIGGINBOTHAM,
Circuit Judges
(Filed January 19, 1981)
MICHAEL YOUNG (Argued)
Goldberger, Feldman, Dubin & Young
401 Broadway - Suite 306
New York, N. Y. 10013
Counsel for Appellant
ROBERT J. CINDRICH.
United States Attorney
PAUL J. BRYSH (Argued)
Assistant U. S. Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, Pa. 15219
Counsel for Appellee
2a
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
The appellant, Antonio John Palumbo II, was con-
victed on one count of conspiracy to possess and distrib-
ute cocaine, and on other counts relating to the posses-
sion and distribution of counterfeit bills. Although the
indictment charges that Palumbo conspired with other
individuals in the distribution of cocaine and counterfeit
bills, he was the only person tried below. From our re-
view of the record, this appeal raises two related ques-
tions. First, whether the district court properly admitted
into evidence several grams of cocaine that was found in
_a search of an unindicted co-conspirator; and second,
whether the court properly admitted the hearsay testi-
mony of a police officer who stated that the unindicted
co-conspirator had identified Palumbo as the source of
the cocaine found in her possession. Because we find
that this hearsay testimony was inadmissable and that,
absent this testimony, there was no foundation linking
the cocaine to the defendant, we reverse Palumbo’s co-
caine conviction, although we affirm his convictions on
all other counts.
I.
Palumbo was indicted on September 6, 1979 for the
following offenses: conspiracy to possess and pass coun-
terfeit bills, in violation of 18 U.S.C. §371 (Count 1);
conspiracy to possess with intent to distribute cocaine,
in violation of 21 U.S.C. §846 (Count II); possession of
counterfeit bills, in violation of 18 U.S.C. §§2 & 472
(Count III); transfer and delivery of counterfeit bills, in
violation of 18 U.S.C. §§2. 472. & 473 (Counts IV, V,
3a
and VI); and possession and distribution of cocaine, in
violation of 21 U.S.C. §841(a)(1)(Counts VII and VIII).'
At trial, much of the government’s case was based
on the testimony of an unindicted co-conspirator of
Palumbo, Mary Jane Pfaff. Pfaff testified that in early
August of 1978 she entered into an agreement with John
Crosson to receive $5,000 in counterfeit bills, which she
1. These sections provide as follows:
21 U.S.C. §846. Attempt and conspiracy.
Any person who attempts or conspires to commit any offense
defined in this subchapter is punishable by imprisonment or
fine or both which may not exceed the maximum punishment
prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.
18 U.S.C. §472. Uttering counterfeit obligatiéns or securities.
Whoever, with intent to defraud, passes, utters, publishes. or
sells, or attempts to pass, utter, publish, or sell, or with like in-
tent brings into the United States or keeps in possession or con-
ceals any falsely made, forged, counterfeited, or altered obliga-
tion or other security of the United States, shall be fined not
more than $5,000 or imprisoned not more than fifteen years, or
both.
18 U.S.C. §473. Dealing in counterfeit obligations or
securities.
Whoever buys, sells, exchanges, transfers, receives, or delivers
any false, forged, counterfeited, or altered obligation or other
security of the United States, with the intent that the same be
passed, published, or used as true and genuine, shall be fined
not more than $5,000 or imprisoned not more than ten years, or
both.
21 U.S.C. §841. Prohibited acts A — Unlawful Acts
(a) 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 con-
trolled substance; or
(2) to create, distribute. or dispense, or possess with
intent to distribute or dispense, a counterfeit substance.
4a
was to exchange for real currency. She returned part of
this currency, per their agreement, to Palumbo a week
later. Palumbo and she agreed that he would supply her
with counterfeit bills in the future, which she would ex-
change for real money and return in part to Palumbo.
They engaged in several of these transactions during the
fall of 1978.
Pfaff also stated that sometime between August,
1978 and October, 1978 she asked Palumbo to obtain
some cocaine for her. According to Pfaff, he agreed, and
later sold her one ounce of cocaine for $1,800 on two
separate occasions. Pfaff stated that she resold some of
the cocaine and retained some for her own use.
The principal problem raised in this appeal con-
cerns several evidentiary rulings made by the trial court
relating to the 12.7 grams of cocaine found in Pfaff’s pos-
session (along with $10,000 in counterfeit ills) when
she was arrested on October 27, 1978. Pfaff told the ar-
resting officer and later the grand jury that she had re-
ceived the cocaine from Palumbo. At trial, however, Pfaff
said she could not recall where she had gotten the co-
caine. The court permitted the government, over de-
fense objections, to remind her in front of the jury of her
earlier identification of Palumbo in testimony before the
grand jury. Pfaff continued to maintain that she could
not recall the source. The court was not requested to
give any instructions limiting the grand jury testimony
to the purpose of refreshing recollection or impeach-
ment. The government, however, made no attempt to in-
troduce the prior statement as substantive evidence,
even though it later argued in summation that the grand
jury statement showed Palumbo supplied the drug. The
district court also permitted the police officer who arrest-
ed Pfaff with the cocaine to testify, again over defen-
dant’s objections, that Pfaff had identified Palumbo as
the source of the cocaine. The court did not explain the
basis of its decision to admit this statement which oc-
curred when defendant was not present. Later the court,
5a
once again over defendant’s objection, admitted the co-
caine seized from Pfaff into evidence and permitted it to
be passed among the jurors.
The jury convicted Palumbo on all of the Counts re-
lating to the possession and distribution of counterfeit
bills (Counts I, III, 1V, V, and VI) and also on the charge
of conspiracy to possess cocaine (Count II). It acquitted
him of the Count relating to the distribution of cocaine
(Count VIII). The Count relating to possession of co-
caine with intent to distribute (Count VII) was dis-
missed during trial. The court imposed consecutive two
year sentences for the two conspiracy convictions, a one
year consecutive sentence for the possession conviction,
and concurrent two year terms for the other three
counts. The net result of the sentence was either a 5 or 6
year prison term.” On appeal, Palumbo has asserted var-
ious errors by the trial judge. Although we find that his
challenges to his conviction on the counterfeiting counts
lack merit,* we conclude that his challenge to the intro-
duction of cocaine into evidence and certain related tes-
timony is correct, and requires a reversal of his convic-
tion for conspiracy to distribute that drug.
2. In their briefs both parties state that the court imposed a 5
year sentence, although arguably a literal reading of the judgment
could indicate that it was a 6 year sentence. This issue, however. is
left to the trial judge upon the remand.
3. First, appellant claims that the trial judge's jurv instructions
on accomplice liability were in error. Palumbo did not object to this
charge below, however, and under Rule 30, Fed. R. Crim. P.. has
waived this objection. Second, appellant challenges the refusal of
the district court judge to permit questioning of Plaff concerning a
suicide attempt seven years earlier and her admission into a mental
hospital during the weekend of the trial. The trial judge allowed ex-
tensive cross-examination of Pfaff, however, and any limitation he
placed on the examination was well within his discretion. See Unit-
ed States v. Slade. 627 F.2d 293 (D.C. Cir. 1980 upholding district
court's limitation on cross-examination of prosecution witness re-
gardiny psychiatric history because witness had already been seri-
ously impeached ). Third, the appellant claims that the district court
6a
Il.
There are two possible grounds under which it
might be argued that the cocaine could have been ad-
mitted into evidence. We find neither rationale sufficient
justification for its admission.
The first, which the district court relied on, is that the
cocaine seized from Pfaff was admissible as evidence of
a conspiracy between Pfaff and Palumbo to distribute co-
caine, even though Pfaff may not have received that par-
ticular cocaine from the defendant. The trial court
stated:
I am going to overrule the objection |to the admis-
sion of the cocaine] because I think part of the testi-
mony here has been that there has been an agree-
ment to distribute cocaine and that the Defendant
delivered some cocaine to Pfaff, and, therefore, the
cocaine, whether or not it agrees with the quantity
delivered by the Defendant to Pfaff, is in part cor-
roborating evidence of Pfaff's testimony with re-
spect to the agreement to distribute, the conspiracy
count. Objection will be overruled.
Transcript at 507. This rationale is impermissible. The
mere fact that a co-conspirator of the defendant pos-
sessed cocaine cannot be used to implicate the defen-
dant for possession or conspiracy to possess cocaine if, as
in this case, there is no evidentiary connection made be-
NOTE 3 — (Continued)
judge should have interrogated the jurors individually to determine
whether they had learned of newspaper publicity about the trial,
The appellant, however, fuiled to raise objection to the procedure ul-
timately used by the trial court to interrogate the jury. See United
Stutes v, Giaculone, 874 F.2d 328, 336 (6th Cir, 1978) (luilure of
uppellunt to raise objection during trial to Judge's failure to interro-
gute jurors about trial publicity waived right to chullenge provedure
un appeal), Appellant's two other claims — (1) that no overt acts
were proved in furtherance of the conspiracy und (2) the two con-
spirucies were one und the same — ure without any merit,
Ta
tween the drug possessed by the co-conspirator and the
defendant in the conspiracy in issue. See United States
v. Falley, 489 F.2d 33, 37-38 (2d Cir. 1973). This pre-
caution is certainly necessary where the witness, as
here, has admitted that she was a frequent user of drugs,
received drugs from various individuals, and does not re-
call whether she got the drugs in issue from or through
the defendant.
The government argues on appeal, alternatively.
that the district court properly admitted the cocaine into
evidence because there was testimony from the arrest-
ing officer that Pfaff had identified Palumbo as the
source. We conclude, however, that the district court
should not have admitted this testimony because it was
inadmissible hearsay. Although the trial judge did not
offer a reason for his ruling, the government has sug-
gested at oral argument that the statement came within |
the exception to the hearsay rule for declarations against
interest, pursuant to Rule 804(b)(3) Fed R. Evid. We
disagree.
Rule 804(b)(3) states in pertinent part:
Hearsay exceptions. The following are not excluded
by the hearsay rule if the declarant is unavailable as
a witness:
we ie ie
(3) Statement against interest. A statement
... 80 far tended to subject him to civil or crimi-
nal liability, . . . that a reasonable man in his po-
sition would not have made the statement un-
less he believed it to be true.
The Rule defines “unavailable as a witness” as follows:
(A) Definition of unavailability. “Unavailability as a
witness” includes situations in which the declarant —
8a
(3) testifies to a lack of memory of the subject
matter of his statement...
While it is true that Pfaff was “unavailable” within the
meaning of the Rule, the reliability of her statement is
less clear. The exception for declarations against interest
“rests upon the assumption that one does not make
statements that would damage himself unless the state-
ment is true.” United States v. Bailey, 581 F.2d 341,
345-46 & n.4 (3d Cir. 1978) (citing 5 Wigmore on Evi-
dence §1455 (Chadbourne Rev. 1974)). The conclusion
that a “reasonable man in |the declarant’s| position
would not have made the statement unless he believed it
to be true,” often requires, therefore, a sensitive analysis
of the circumstances in which the statement was made
and the precise nature of the statement. The Advisory
Committee on the Federal Rules of Evidence has
warned, in particular, that the courts should exercise
special caution when the statement was made by a de-
fendant in police custody and against a co-defendant.
“Whether a statement is in fact against interest,” the
committee observed,
must be determined from the circumstances of each
case. Thus a statement admitting guilt and impli-
cating another person, made while in custody, may
well be motivated by a desire to curry favor with the
authorities and hence fail to qualify as against
interest.
Advisory Committee Note to Rule 804 reprinted in 4 J.
Weinstein and M. Berger, Weinstein’s Evidence. at
804-24. Thus. this and other courts have found state-
ments implicating a co-defendant and made in police
custody to be inadmissible under the rule. See. e.g..
United States v. Cone, 592 F.2d 1022, 1025 (8th Cir.
9a
1979); United States v. Bailey, 581 F.2d at 345-46 &
n.4.
When viewing the totality of “circumstances ol
[this] case,” we conclude that Pfaff's statement did not
fall within the exception for declaration against interest
Pfaff’s identification of Palumbo as the source of the co-
caine only occurred after the cocaine had already been
found on her person by the police. While technically her
statement could have been used to support a conspirac\
conviction, or as evidence to show her possession was
knowing, it is doubtful whether it is the tvpe of state-
ment that “so far tended to subject | Pfaff] to. . . criminal
liability that a reasonable person in |her| position would
not have made the statement unless |s|he believed it to
be true.” The legal implications of her statement may
well have been unknown to her. More importantly. the
statement was made while Pfaff was in police custody in —
response to police questioning. There is a very real dan-
ger that the motivation for the revelation may not have
been to further truth, but rather to “curry favor with the
authorities.” On these grounds, although the issue is not
free from doubt, we hold that it was error to admit the
testimony.°
We cannot discern, and the government has not
suggested, any other grounds for the admission of the
statement. The government concedes, as it must. that
the testimony of Pfaff to the grand jurv could not have
supported the admission of the cocaine into evidence.
The government made no attempt to intreduce the testi-
mony as substantive evidence during Ptatf's cross ex-
5. We are also in agreement with Judge Adams’ scholarly con
curring opinion which illuminates many of the subtleties of the rule
and its application to this case.
10a
amination or at any other point.° Thus, we conclude that
there was no properly admitted evidence to support the
introduction of the cocaine. Because the prejudicial im-
pact from the admission of the cocaine clearly
outweighed its probative value under Rule 403, F. R.
Evid., we hold that it was a clear abuse of discretion to
admit the evidence.
Finally, it remains to be considered whether the ad-
mission of the cocaine into evidence was an error of suf-
ficient magnitude to warrant a reversal of the conviction
for conspiracy to possess cocaine. We believe that it was.
The admission of the drug into evidence indicated a di-
rect connection between the defendant and the drug.
The fact that this cocaine was actually permitted to be
6. We cannot hold on appeal that this prior statement would
have been admissible under Rule 801(d)(1)(A), Fed. R. Evid. as a
prior inconsistent statement. The Rule states:
A statement is not hearsay if —
(1) Prior statement of witness. The declarant testifies at the
trial or hearing and is subject to cross-examination concerning
the statement, and the statement is
(A) Inconsistent with his testimony, and was given under
oath subject to the penalty of perjury at a trial hearing, or
other proceeding, or in a deposition . . .
Pfaff's assertion that she could not recall where she obtained the co-
caine was not necessarily inconsistent with her prior statement that
she had received the cocaine from Palumbo, as required by the
Rule. Several courts have recognized that lack of memory as to the
substance of a prior statement may not be inconsistent in certain
circumstances with the prior statement. See United States v. Rog-
ers, 549 F.2d 490, 496 (8th Cir. 1976); United States v. Insana, 423
F.2d 1165, 1170 (2d Cir.), cert. denied, 400 U.S. 841 (1970). As
Judge Weinstein has written in his treatise:
|I}t would seem that the prior statement should not be included
under 801(d)(1)(A) if the judge finds that the witness genuine-
ly cannot remember, and the period of amnesia or forgettulness
is crucial as regards the facts in issue.
4 Weinstein’s kvidence §8O01(d)01 (A) |04|. 601-98.
lla
passed among the jurors adds to its prejudicial impact
Moreover, in this case, hearsay testimony providing this
link was impermissibly commented on by the prosecutor
during cross examination and in his closing without an
accompanying instruction by the trial court limiting its
use to impeachment purposes. In these circumstances.
“(t]he rule requires 'an explicit admonition to the jury by
the court at the time a prior inconsistent statement is ad-
mitted, and also an instruction at the close of trial. that
the statement can be considered only as bearing on
credibility.” United States v. Ragghianti, 560 F.2d 1376.
1381 (4th Cir. 1979) (quoting Bartley v. United States.
319 F.2d 717, 719 (D.C. Cir. 1963)). Other courts have
found the introduction into evidence of a drug not linked
to the defendant constituted prejudicial error requiring
reversal of the drug related conviction. See United States
v. Falley, 489 F.2d at 37-38. In this case. where a hear- °
say statement providing the link was read to the jurv
with no limiting instruction, and the cocaine was ad-
mitted into evidence, there was prejudicial error requir-
ing a reversal of appellants’ conviction for conspiracy to
possess and distribute cocaine.
III.
We therefore will vacate appellant's conviction on
Count II for conspiracy to distribute cocaine. affirm his
conviction on all other counts, and remand to the district
court judge to consider the appropriate sentence. ‘
7. We do not find that the improper admission of evidence and
testimony relating to Count II was sufficiently prejudicial to require
a new trial on the other counts.
12a
ADAMS, Circuit Judge, concurring.
Although I agree with the majority that Pfaff's iden-
tification of Palumbo as the source of the cocaine she
carried at the time of her arrest was not admissible un-
der Federal Rule of Evidence 804(b)(3), I write sepa-
rately to emphasize the significance of today’s decision,
and to elucidate the reasoning that leads me to the same
conclusion reached by the majority.
Implicit in the opinion for the Court is the assump-
tion that Rule 804(b)(3) may be invoked to admit decla-
rations against interest by a third party which inculpate
the accused. Although we are not the first federal court
of appeals to employ Rule 804(b)(3) in this manner, '
commentators have cautioned against using the declara-
tion against interest exception to allow evidence harmful
to a criminal defendant.” While I believe that this appli-
cation of the rule is proper, some comment on why this
result is justified appears appropriate.
1. Other cases in which the admissibility of inculpatorv decla-
rations against interest was tested by Rule 804(b (3) include United
States v. Garris, 616 F.2d 626 (2d Cir ). cert. denied, 100 S. Ct. 2947
(1980); United States v. Alvarez, 584 F.2d 694 (Sth Cir. 1978);
United States v. Lilley, 581 F.2d 182 (8th Cir. 1978). In each of
these cases. however. the court assumed without further explana-
tion that inculpatory statements fall within the ambit of Rule
804(b)(3). In addition to the cited cases. at least two courts of ap-
peals have indicated in dictum that a statement against penal inter-
est may be used against. as well as in favor of. an accused. See Unit-
ed States v. Barrett. 539 F.2d 244. 250 (Ist Cir. 1976); United
States v. Hyde. 574 F.2d 856, 863 (Sth Cir. 1978).
2. See Report. New Jersey Supreme Court. Committee on Evi-
dence 170-71 (1963) (‘declarations against the penal interest of a
declarant should be inadmissible against another in the criminal
prosecution of the latter. particularly if made while the declarant
was in police custody”); J. Weinstein & M. Berger. Weinstein’s Evi-
dence © 8046b)03 (03). at 804-113. 01979) (exclusion should always
result when a statement against penal interest is offered against an
accused”,
13a
As originally drafted by the Advisory Committee,
Rule 804(b)(3) precluded the admission of inculpatory
statements. The final sentence of the draft rule pro-
vided: “This [exception] does not include a statement or
confession offered against the accused in a criminal
case, made by a codefendant or other person implicating
both himself and the accused.” Proposed Fed. R. Evid.
804(b)(4) (1969 draft), 46 F.R.D. 161, 378 (1969) (later
renumbered as Fed. R. Evid. 804(b)(3)). While this sen-
tence had been deleted by the time the Supreme Court
promulgated the official Advisory Committee Draft of
the Federal Rules of Evidence in 1972, see 56 F.R.D.
183, 321 (1972), the House of Representatives
reinserted the exclusion of inculpatory statements, see
House Committee on the Judiciary, Report on Federal
Rules of Evidence, H.R. Rep. No. 93-650, 93d Cong., Ist
Sess. 16 (1973). This restoration was of short duration.
however, as the Senate rejected the House’s reference to
inculpatory statements, see Senate Committee on the
Judiciary, Report on Federal Rules of Evidence, S. Rep.
No. 93-1277, 93d Cong., 2d Sess. 21-22 (1974), and it
was the Senate’s position which adopted by the confer-
ence committee, see Committee on Conference, Report
on Federal Rules of Evidence, H.R. Rep. No. 93-1597,
93d Cong. 2d Sess. 12 (1974).*
Ultimate rejection of the sentence forbidding ad-
mission of inculpatory declarations against interest
might suggest a Congressional intent that such declara-
tions should be admitted when the requirements of Rule
804(b)(3) are satisfied. But the reasons for the Senate’s
3. Amore elaborate account of the drafting process which pro-
duced Rule 804(b)(3) may be found in Comment. Federal Rule of
Evidence 804(b 3) and Inculpatory Statements Against Penal In-
terest. 66 Calif. L. Rev. 1189. 1191-98 (1978).
14a
omission of the sentence cast some doubt on such a spa-
cious interpretation:
The House amended this exception to add a
sentence making inadmissible a statement or con-
fession offered against the accused in a criminal
case, made by a codefendant or other person impli-
cating both himself and the accused. The sentence
was added to codify the constitutional principle an-
nounced in Bruton v. United States, 391 U.S. 123,
88 S. Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton held
that the admission of the extrajudicial hearsay
statement of one codefendant inculpating a second
codefendant violaicd the confrontation clause of the
sixth amendment.
The committee decided to delete this provision
because the basic approach of the rules is to avoid
codifying, or attempting to codify, constitutional
evidentiary principles, such as the fifth amend-
ment’s right against self-incrimination and, here,
the sixth amendment’s right of confrontation. Codi-
fication of a constitutional principle is unnecessary
and, where the principle is under developent, often
unwise.
S. Rep. No. 1277, supra, 21-22.
The dispute between the Senate and the House
thus arose from differing judgments concerning the pro-
priety of codifying evolving evidentiary principles based
on constitutional considerations. Congress decided ulti-
mately that limitations on admissibility mandated by the
Confrontation Clause should be left to the courts to pro-
pound and refine. There is no indication, however, of a
clash of opinion within the Congress about whether tra-
ditional justifications for hearsay exceptions apply to in-
culpatory declarations against interest. Significantly, no
Congressional committee suggested that inculpatory
declarations are insufficiently reliable to be included
15a
within the Rule 804(b)(3) exception. The legislative his-
tory suggests, if anything, the contrary, for if either
House had entertained such an opinion, it would have
had no need to address the Bruton question;
unreliability is an adequate — indeed, the historical —
reason for treating hearsay statements as inadmissible."
In my view, then, the history of the drafting of Rule
804(b)(3) is not inconsistent with a construction which
allows the admission of declarations against interest that
inculpate the accused. Since inculpatory declarations by
third parties are excluded neither by the history nor by
the terms of the Rule, I wouid suggest that the Rule be
interpreted as authorizing their admission, provided, of
course, that admission would not abridge the defen-
dant’s rights under the Confrontation Clause of the
Sixth Amendment.
The Supreme Court has had several occasions to ex-
amine the relationship between the Confrontation
Clause and the exceptions to the rule against hearsay.
See, e.g., Mancusi v. Stubbs, 408 U.S. 204 (1972); Cali-
fornia v. Green, 399 U.S. 149 (1970); Pointer v. Texas,
380 U.S. 400 (1965). Most recently, in Ohio v. Roberts,
48 U.S.L.W. 4874 (U.S. June 25, 1980) (No. 78-756),
the Court allowed the introduction into evidence of testi-
mony, which had been produced at the preliminary
hearing, of a witness who was not present at the subse-
4. See Comment, supra note 2, at 1198 n.50 (Congress would
not have had to deal with the Bruton question if it had intended in-
culpatory declarations to be outside the scope of Rule 804(b)(3)).
For elaboration of the theory that hearsay exceptions are justified
for categories of statement that exhibit guarantees of reliability not
shared generally by hearsay evidence, see J. Weinstein & M.
Berger, Weinstein’s Evidence © 8000/01], at 800-11: 5 J. Wigmore.
Evidence §§1420, 1422 (rev. ed. J. Chadbourne 1974). But see
Note, The Theoretical Foundation of the Hearsay Rules, 93 Harv.
L. Rev. 1786, 1794-99 (1980) (focus on absolute reliability
mistakenly ignores jury's perception of reliabilitv; hearsay should be
admitted when absolute reliability exceeds expected error in jurv's
assessment of reliability ).
16a
quent state criminal trial. In the course of its opinion,
the Court summarized the limitations imposed by the
Confrontation Clause on the exceptions to the hearsay
rule. First, the Confrontation Clause normally requires a
showing that the hearsay declarant is unavailable. Id. at
4877. And then, the hearsay statement “is admissible
only if it bears adequate ‘indicia of reliability.’ The
Court noted that certain hearsay exceptions “rest upon
such solid foundations that admission of virtually any
evidence within them comports with the ‘substance of
the constitutional protection,’” id. at 4876 (quoting
Mattox v. United States, 156 U.S. 237, 244 (1895)), and
cited the dying declaration and _ cross-examined
prior-trial testimony as examples, 48 U.S.L.W. at 4876
n.8. With most exceptions, however, the facts surround-
ing the making of the hearsay statement at issue must
be examined in order to ascertain whether they provide a
satisfactory indication of the trustworthiness of the
statement.
With respect to inculpatory declarations against in-
terest, I believe that admission is proper only when it is
demonstrated that “corroborating circumstances clearly
indicate the trustworthiness of the statement.”” When
5. This is the standard already furnished by Rule 804(b)(3) for
declarations against interest offered to exculpate the accused. In
this context the corroborating circumstances requirement is not re-
quired by the Confrontation Clause, but stems instead from appre-
hension that in the absence of such a provision, criminal defendants
could easily procure false confessions by declarants who had
disappeared and thus had _ become’ unavailable for
cross-examination at trial. See Note, Declarations Against Penal In-
terest: Standards of Admissibility Under an Emerging Majority
Rule, 57 B.U.L. Rev. 148, 151 (1976). Since this concern would ap-
pear to apply as well to the obtainment of inculpatory declarations,
the failure of the Advisory Committee and the Congress to include a
corroborating circumstances requirement for inculpatory state-
ments, like the failure expressly to include inculpatory statements
within the reach of the Rule, may best be explained by the desire
not to codify evolving constitutional principles. See United States v.
Alvarez, 584 F.2d at 700-01.
17a
combined with the conditions already written into Rule
804(b)(3), this yields a three-part test for the admissibil-
ity of inculpatory declarations against interest: the state-
ment is receivable only if (1) the declarant is unavailable
as a witness; (2) the statement is so far contrary to the
declarant’s pecuniary, proprietary, or penal interest that
a reasonable person in his position would not have made
the statement unless he believed it to be true; and (3)
the trustworthiness of the statement is corroborated by
the attendant circumstances.
In the present case, the first of these prerequisites is
satisfied. Rule 804(a)(3) establishes that a witness is
“unavailable” if she “testifies to a lack of memory of the
subject matter of [her] statement.” At Palumbo’s trial,
Pfaff testified to a lack of memory about the subject mat-
ter of her statement, made at the time of her arrest, iden-
tifying Palumbo as her source for cocaine. See California
v. Green, 399 U.S. 149 (1970).
The majority concludes that the second precondi-
tion of Rule 804(b)(3) is not satisfied, inasmuch as the
statement made by Pfaff when arrested was not so con-
trary to her penal interest that a reasonable person in her
situation would not have made the statement unless she
believed it to be true. The majority suggests that Pfaft’s
statement was against Palumbo’s interest but not
against her own, inasmuch as the police had already
found the cocaine in Pfaff's possession and she was
merely identifying where she had obtained it.
I am not so convinced as the majority that Pfaff’s
statement was not against her interest. In United States
v. Alvarez, 584 F.2d 694 (5th Cir. 1979). the Fifth Cir-
cuit considered the admissibility of testimony that an
unavailable declarant had identified defendant as the
supplier of drugs that the declarant had subsequently
furnished the witness. As in the present case. defendant
argued that the hearsay statement did not fall within
Rule 804(b)( 3), since it “did not really contravene the in-
18a
terest of [the defendant].” 584 F.2d at 699. The Court re-
jected this reasoning. It noted that the “against interest”
exception is not limited to a declarant’s direct confession
of criminal guilt, but applies as well to statements that
“tend” to subject the speaker to criminal liability.° The
court then found that the declarant’s remarks “strongly
implied his personal participation” in the crimes, and
“strengthened the impression that he had an insider’s
knowledge of the crimes.” Id. at 700 (quoting United
States v. Barrett, 539 F.2d 244, 251-52 (1st Cir. 1976)).
The statements were thus against the interest of the de-
clarant for purposes of Rule 804(b)(3).
The facts of the present case parallel the situation in
Alvarez: the witness (FBI Agent Ogilvie) testified that
the declarant (Pfaff) had identified the defendant
(Palumbo) as the source for illegal substances. As in
Alvarez, Pfaff's statements would tend to indicate her
personal participation in criminal activity and to convey
the impression that she had an insider’s knowledge of
the wrongdoing. By identifying her source, Pfaff was ad-
mitting that her possession of the drug was knowing. See
United States v. Bagley, 537 F.2d 162 (5th Cir. 1976)
(inmate’s statement that he furnished defendant with
heroin held to be against inmate's interest, since it con-
ceded his knowing possession of heroin). In addition,
Pfaff's acknowledgment of Palumbo’s role might have
suggested that she was involved with him in a conspir-
acy to possess, or to distribute, cocaine. ‘
6. Accord, United States v. Thomas, 571 F.2d 285, 288-89 (5th
Cir. 1978); United States v. Barrett, 539 F.2d 244, 251 (Ist Cir.
1976); United States v. Satterfield, 572 F.2d 687, 691 (9th Cir,
1978).
7. In determining whether a statement is against the speaker's
interest for purposes of Rule 804(b)(3), some courts have focused
gn whether the assertion contained evidence that would prove
harmful to the declarant should he ever be tried. See United States
’. Barrett, 539 F.2d at 251: “Though by no means conclusive, the
statement would be important evidence against [the declarant! were
19a
Although | conclude that the statement made by
Pfaff upon arrest was against her interest. in my view
the statement is not supported by sufficient “indicia of
reliability” to warrant its admissibility under Rule
804(b)(3). The naming of another as a compatriot will
often be accompanied by motivations which undermine
the trustworthiness of the assertion. As one commenta-
tor has noted:
The invocation of a name may be gratuitous,
may be deliberately false in order to gain advantages
for the declarant greater than those that would flow
from naming a real participant or no one at all. may
be a cover for concealment purposes (another kind
of “advantage”), or may represent an effort to gain
some kind of personal revenge.
Davenport, The Confrontation Clause and the Cocon- -
spirator Exception in Criminal Prosecutions: A Func-
tional Analysis, 85 Harv. L. Rev. 1378, 1396 (1972),
The Advisory Committee that drafted Rule 804(b)(3)
also recognized these dangers. Its Note to Rule 804 cau-
tions that “a statement admitting guilt and implicating
another person, made while in custody, may well be mo-
tivated by a desire to curry favor with the authorities.”
In Chambers v. Mississippi, 410 U.S. 284 (1973),
the Supreme Court identified several circumstances
which provide assurance that protfered hearsay testi-
mony is trustworthy. Although the Court in Chambers
he himself on trial... . We cannot say, therefore, that it did not pose
the sort of threat to [the declarant's | interest that the hearsay excep-
tion contemplates." See also Note, supra note 4, at 158 (both decla-
rations that are direct confessions and declarations that merely pro-
vide evidence against the declarant sufficiently jeopardize penal
interests” to fall within Rule 804(b)(3)). Pfaft's identification otf
Palumbo might be offered as evidence were she brought to trial.
insofar as it tends to establish knowing possession on her part and
might support a theory of conspiracy to possess or to distribute co-
caine.
20a
was presented with a constitutional challenge to the ex-
clusion of evidence rather than a question of admissibil-
ity under the Federal rules, the Court’s discussion of
reliability, while not binding in the present circum-
stances, may nonetheless assist in evaluating the trust-
worthiness of the hearsay evidence at issue here.”
The evidence excluded by the state courts in
Chambers consisted of three confessions made by one
McDonald to the crime with which Chambers was
charged. In concluding that the context in which these
admissions were made offered “considerable assurance”
of their reliability, the Court observed that “each of
McDonald’s confessions was made spontaneously to a
close acquaintance shortly after the murder had oc-
curred.” Id. at 300. In contrast, Pfaff’s purported admis-
sion occurred only after she had been taken into custo-
dy, and may have been prompted by a belief that she
would thereby gain favorable treatment from the police
or prosecutor. Moreover, her comments were not made
spontaneously, but were part of a statement elicited by
the arresting officers. Cf. United States v. Thomas, 571
F.2d 285, 290 (5th Cir. 1978) (declaration against inter-
8. The Supreme Court held in Chambers that the trial court's
exclusion of the hearsay testimony of three witnesses that another
person had confessed to the crime for which Chambers stood trial,
coupled with the state court's refusal to permit Chambers to cross-
examine a key witness, “denied |Chambers| a trial in accord with
traditional fundamental standards of due process.” 410 U.S. at 302.
The Court was careful to state, however, that it did not establish, as
a matter of constitutional law, that any declaration against interest
which tends to exculpate the accused must be admitted in a crimi-
nal trial. Id. at 299-300.
9. In determining whether corroborating circumstances clear-
ly indicate the trustworthiness of a third party confession, other fed-
eral courts have looked to Chambers v. Mississippi tor guidance. See
United States v. Oropeza. 564 F.2d 316, 325 (9th Cir. ). cert. denied,
434 U.S. 1080 (1977); United States v. Guillette, 547 F 0) 743. 754
(2d Cir. 1976). cert. denied, 434 U.S. 839 (1977), But see Com-
ment. supra note 2. at 1206 n.103 (criticizing this approach).
2la
est sufficiently corroborated when statement was not
elicited by questioning, was facially spontaneous. and
was made in the presence of several witnesses). In
Chambers, the confessions were corroborated by othe:
evidence in the case; McDonald, for instance. had been
seen with a gun immediately after the shooting In the
present situation, on the other hand. Pfaffs statement
upon arrest was the only evidence on record linking
Palumbo to the 12.7 grams of cocaine admitted into
evidence. '”
There also is no indication that Pfatf was aware. at
the time she allegedly identified Palumbo as her source
for cocaine, that this admission might be against he:
own interest. Professor Morgan has argued that unless
the declarant is aware that her statement tends to sub-
ject her to criminal liability, the assumption that the as-
sertion is more reliable than other forms of hearsay is
unjustified.'' Finally, Pfaff’s personal history, marked
by frequent use of drugs and treatment for psychological
disorders, further weakens her trustworthiness.
10. The other considerations that influenced the Supreme
Court in Chambers are less germane to the case at hand. The Court
noted that each of McDonald's confessions “was in a very real sense
self-incriminatory and unquestionably against interest.” 410 U.S. at
301. As discussed above, Pfaff’s statements upon arrest contravened
her penal interest, although probably not as directly and unam-
biguously as McDonald's confessions that he shot the police office:
with whose killing Chambers was charged. The Court in Chambers
also observed that McDonald was present in the courtroom during
trial, and questions about the truthfulness of his extrajudicial state-
ments could have been resolved by cross-examining him. In the
present case, Pfaff was unavailable within the meaning of Rule
804(a)(3).
11. See Morgan, Declarations Against Interest. 5 Vand |
Rev. 451, 477 (1952). See also 5 J. Wigmore. supra note 3. \ 1401
S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 60.3
(‘Whenever a statement against interest is offered, it is the job of
the Trial Judge to determine whether the declarant was under the
impression that the statement was against his interest at the me
he made it."’).
22a
I conclude, therefore, that the hearsay testimony
concerning Pfaff’s identification of Palumbo was im-
properly admitted. That being the case, no foundation
had been established for the introduction into evidence
of the 12.7 grams of cocaine. The potential for prejudice
arising from these two errors leads me to conclude, as
does the majority, that Palumbo’s conviction on Count II
should be vacated, and the case remanded to the district
court for re-sentencing.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
23a
APPENDIX B—ORDERS DENYING REHEARING
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 80-1312
UNITED STATES OF AMERICA,
v.
ANTONIO JOHN PALUMBO, II,
Appellant.
SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, and ALDISERT, ADAMS,
GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM
and SLOVITER, Circuit Judges.
The petition for rehearing filed by ANTONIO JOHN
PALUMBO, II, Appellant in the above entitled case having been
submitted to the judges who participated in the decision of this
court and to all the other available circuit judges of the circuit in
regular active service, and no judge who concurred in the deci-
sion having asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service not having voted for
rehearing by the court in banc, the petition for rehearing is
denied.
24a
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 80-1312
UNITED STATES OF AMERICA
v.
ANTONIO JOHN PALUMBO, II,
Appellant.
Present: ADAMS, HUNTER and HIGGINBOTHAM, Cir-
cutt Judges
The petition for rehearing filed by UNITED STATES OF
AMERICA, appellee in the above entitled case having been sub-
mitted to the judges who participated in the decision of this court
and no judge who concurred in the decision having asked for
rehearing, the petition for rehearing is denied.
By the Court,
s/Higginbotham, Circuit Judge
Dated: March 13, 1981
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