Petition — Chappell v. United States

Office-Supreme Court US,

‘82-1664 FILED ~

APR 1] "963

ALEXANDER L. STEVaS,

CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

ROBERT S. CHAPPELL,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Petition for Certivrari — Criminal Case

Don A. Tabbert

Robert B. Keene

BAYH TABBERT & CAPEHART

One Indiana Square, Suite #1500

Indianapolis, Indiana 46204

(317) 639-5444

Attorneys for Petitioner

Central Publishing Company. Inc.. Indianapolis, IN 46206

QUESTIONS PRESENTED FOR REVIEW

1. Did the District Court err and violate the Petitioner’s

right under the Sixth Amendment to be confronted with

the witnesses against him when it permitted the Assistant

United States Attorney to read to the jury portions of a

purported transcript of an interview of a deceased former

employee of the Petitioner’s Corporation, where at the

interview neither the Petitioner nor his counsel were

present to cross-examine?

2. Did the District Court err and violate the Petitioner’s

right under the Sixth Amendment to be confronted with

the witnesses against him when it admitted as evidence

documents purporting to be books and records of the

Petitioner’s corporation when the documents had been kept

and maintained by a former employee who was deceased at

the time of trial?

LIST OF PARTIES

All parties appear in the caption of the case in this Court.

TABLE OF AUTHORITIES

Cases Page

Ohio v. Roberts, 448 U.S. 56 (1980) .............0. 4,7

Constitutional and Statutory Provisions

United States Constitution, Sixth Amendment ..... 2,4,8

ec ceuencusevebeneevessacenuan 2,4

28 U.S.C. §1254(1) 2

EN Sh kc k6bdsnevscbeasvesdeskaueasdaeee 2

Rules

Federal Rules of Evidence, Rule 301(d)2)(D)....... 5,6,7

Federal Rules of Evidence, Rule 801(d\2)(E)....... 5,6,7

Federal Rules of Evidence, Rule 803(b) ............ 6,7

Treatises

4 Weinstein and Berger, Weinstein’s Evidence ..... 5

TABLE OF CONTENTS

Questions Presented

List of Parties .....

Table of Authorities

Opinions Below ....

et oe awaeceneuke

Jurisdictional Grounds in this Court ...............

Constitutional and Statutory Provisions ...... eikee

IE OE TG GOD io ike cccinn sc ccer digs covecsees

Existence of Jurisdiction Below ................06.

Reasons for Granting the Writ..................05.

Conclusion.........

iii

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

ROBERT S. CHAPPELL,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR CERTIORARI

CRIMINAL CASE

OPINIONS BELOW

The Opinion of the United States Court of Appeals for the

Seventh Circuit [hereinafter Seventh Circuit] issued on

January 14, 1983, has been reported at 698 F.2d 308 (7th

Cir. 1983). (App. p. 1a) A Petition for Rehearing was timely

filed and denied by the Seventh Circuit on February 10,

1983. (App. p. 11a).

The Seventh Circuit affirmed a judgment of the United

States District Court for the Southern District of Indiana

{hereinafter District Court] issued on March 1, 1982. (App.

p. 12a).

JURISDICTIONAL GROUNDS IN THIS COURT

The judgment of the Seventh Circuit was entered on

January 14, 1983, and an order denying a Petition .or

1

2

Rehearing was issued on February 10, 1983. The judgment

of the District Court was entered on March 9, 1982. The

jurisdiction of this Court is envoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

1. The Sixth Amendment of the United States

Constitution which provides in pertinent part:

In all criminal prosecutions the accused shall enjoy the

right .. . to be confronted with the witnesses against

him...

2. The statute under which the Petitioner was

prosecuted, although nothing turns on its terms, was 18

U.S.C. §1341 which provided in pertinent part as follows:

“$1341 Frauds ad Swindles”

“Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money

or property by means of false or fraudulent pretenses,

representations, or promises,... for the purpose of

executing such scheme or artifice or attempting to do

so, places in any post office or authorized depository

for mail matter, any matter or thing whatever to te

sent or delivered by the post office department, or

takes or receives therefrom any such matter or thing,

or knowingly causes to be delivered by mail according

to the direction thereof, or at the place at which it is

directed to be delivered by the persons to whom it is

addressed, any such matter or thing, shall be fined not

more than $1,000 or imprisoned not more than 5 years,

or both.”

STATEMENT OF THE CASE

The facts necessary to place in their setting these

questions raised can be briefly stated:

3

In November of 1981 the Petitioner was tried by jury in

the United States District Court for the Southern District

of Indiana on an 11 count indictment charging 10 counts of

violations of 18 U.S.C. §1341 and 1 count charging a

violation of 18 U.S.C. §2314. The verdict of the jury after

almost two weeks of trial, acquitted the Petitioner on the

sole count charging a violation of 18 U.S.C. §2314 and

further acquitted the Petitioner of 8 of the 10 counts

charging a violation of 18 U.S.C. §1341. However the jury

found the Petitioner guilty of 2 counts of violating 18 U.S.C.

§1341.

On March 1, 1982 the District Court issued its Judgment

and Commitment Order (App. p. 12a), committing the

Petitioner to the custody of the Attorney General for

imprisonment for three years on count 10 of the indictment

and two years on count 11 of the indictment. The Court

further ordered that execution of the sentence on count 11

be suspended and the Petitioner placed on probation for a

period of four years with the period of probation on count 11

to be consecutive to the sentence imposed on count 10

including any parole or other supervision time.

During the trial the District Court, over the Petitioner’s

objection, admitted government exhibits 16(A)-(K) and

permitted the government to read to the jury portions of

government exhibit 16(L). Exhibits 16(A)-(K) consisted of

alleged books and records of Petitioner’s corporation which

had been received by the government from Mr. Tony Ricci,

who was alleged to be the bookkeeper for Petitioner’s

corporation. Exhibit 16(L) which was read to the jury over

Petitioner’s objection consisted of a transcript of an ex

parte statement taken by the government from Mr. Ricci at

the time the government received the books and records.

The government took the statement and received the

exhibits on May 2, 1977 and Mr. Ricci died on October 29,

1978. At the time the trial commenced on November 9, 1981

Mr. Ricci was unavailable to testify by reason of his death.

4

Exhibits 16(A)-(K), which had been identified by Mr.

Ricci in his ex parte statement Exhibit 16(L), were the only

books and records of Petitioner’s corporation. The exhibits

were used by the governments’ witnesses to develop or

generate a purported cash flow chart for Petitioner’s

corporation which was the subject of extensive testimony

by government witnesses and which purported to show that

hundreds of thousands of dollars paid by investors to

Petitioner’s corporation were misappropriated. Thus the

books and records became the central thrust of the

government’s case and the District Court’s error in

admitting those records necessarily affected the jury’s

verdict.

THE EXISTENCE OF JURISDICTION BELOW

The Petitioner was convicted in the United States

District Court for the Southern District of Indiana of 2

counts of mail fraud under 18 U.S.C. §1341.

REASONS FOR GRANTING THE WRIT

The Seventh Circuit has decided an important question

of federal evidentiary law which has not been but should be

settled by this Court.

The Seventh Circuit misapprehended the law in regard

to the confrontation clause of the Sixth Amendment and in

particular as to the admission of the ex parte statement of

Ricci, Exhibit 16(L) and of the purported books and records

of Petitioner’s corporation as Exhibits 16(A)-(K). The

Seventh Circuit properly noted that under Ohio v. Roberts,

448 U.S. 46 (1980) admissibility of evidence in the absence

of the declarant depends upon adequate “indicia of

reliability”. In Roberts this Court held that reliability can

be inferred without more in a case in which the evidence

falls within a “firmly rooted hearsay exception” but that in

other cases the evidence must be excluded absent ashowing

of “particularized guarantees of trustworthiness”.

5

The Seventh Circuit determined that Ricci’s testimony

did not fall within a hearsay exception but was defined as

not being hearsay pursuant to Rule 801(dX2\D) of the

Federal Rules of Evidence (F.R.E.) (App. p. 7a). The

Seventh Circuit further noted correctly, that the exclusion

of party admissions from the definition of hearsay was not

grounded on any probability of trustworthiness, but rather

on the idea that a party cannot object to his failure to cross-

examine himself. However, such rationale for excluding

party admission from the definition of hearsay is absent

when the definition of the party admission is expanded to

include agents of the party.

The Seventh Circuit then properly noted that in the case

of an admission by an agent, as here, a separate

confrontation clause analysis is necessary. The Seventh

Circuit then erred and misapprehended the law and the

Sixth Amendment in determining that admissions of an

agent under F.R.E. 801(d)2)(D) satisfied confrontation

clause analysis by analogy to extra judicial statements of

co-conspirators which are admissible under F.R.E.

801(dX2XE). The Seventh Circuit’s conclusion that

confrontation clause anslysis under F.R.E. 801(d\2)(D) is

met by analogy to F.R.E. 801(d\2\E) is in error, is

unprecedented and indeed is not even suggested by any

reported authority.

F.R.E. 801(dX2\E) is much narrower and more tightly

drawn to protect the rights of an accused, than is F.R.E.

801(dX2XD). The fact that the former may meet

confrontation clause analysis does not mean tiiat the latter

does.

F.R.E. 801(dX2XE) is applicable only in circumstances

in which a statement by a co-conspirator is made “in

furtherance of a conspiracy”. See, 4 Weinstein and Burger,

Weinsteins’ Evidence, 4801(d2)A) and [01](1981), at page

801-138 to 801-139 and paragraph 801(d\2)E)[01}.

The draftsmen of the Federal Rules of Evidence

departed from the conclusion of the draftsmen of the Model

Code of Evidence that the “in furtherance” requirement

should be eliminated. The draftsmen of the Federal Rules

retained the traditional limited “in furtherance”

requirement in F.R.E. 801(d\2)E) for the purpose of

protecting the accused from conviction upon “loose” and

unreliable testimony. Weinstein, supra, at p. 801-170.

Thus, F.R.E. 801(dX2\E) requires a showing that a

statement was made “in furtherance of the conspiracy” but

F.R.E. 801(dX2)(D) requires no such showing that the

agent made his admission or statement in furtherance of

any criminal plan. That distinction alone is sufficient to

destroy the analogy created by the Seventh Circuit between

F.R.E. 801(d\2)(D) and (E).

The government never contended that Ricci’s statement

to the government agents was made in furtherance of any

criminal plan. In fact it was not even made in the scope of

his employment duties for Petitioner’s corporation. The

Seventh Circuit correctly noted in its opinion (at App. p. 7a)

that Ricci was no longer on the payroll of Petitioner’s

corporation at the time he made the statement. He was

“acting as General Oil’s bookkeeper” only in the sense that

he had physical possession of books and records.

If Ricci had been considered as a co-conspirator of

Petitioner and if the government had sought to introduce

his ex parte statement pursuant to F.R.E. 801(d)\(2)(E) its

effort would have been conclusively rejected, because Ricci

was not acting “in furtherance” of anything other than the

government’s request to him.

In regard to the admission into evidence of the books and

records of Petitioner’s corporation Petitioner contends that

the Seventh Circuit erred in its conclusion that the books

and records were admissible under confrontation clause

analysis because they fit “within a firmly rooted hearsay

exception” (App. p. 8a). The hearsay exception to which the

Seventh Circuit had reference is F.R.E. 803(6) dealing with

7

admissibility of business records. One of the requirements

of F.R.E. 803(6) is an indication of trustworthiness. As the

Seventh Circuit noted the most important evidence of trust-

worthiness of the books and records was portions of Ricci’s

testimony (App. p. 7a). If the admissibility of Ricci’s

testimony falls, then the admissibility of the books and

records falls in turn. Admissibility of the books and records

cannot be “bootstrapped” by reference t* Ricci’s testimony,

when Ricci’s testimony itself should have been held

inadmissible under confrontation clause analysis.

In summary the confrontation clause of the Sixth

Amendment prohibits the admission of an out of court

declaration which does not fall within a “firmly rooted

hearsay exception” and which does not show

“particularized guarantees of trustworthiness”. Ohio v.

Roberts, supra, at 66. The testimony of Tony Ricci, by the

Seventh Circuit’s own analysis, does not fall within a firmly

rooted hearsay exception. Neither did the testimony

demonstrate particularized guarantees of trustworthiness.

The analogy drawn by the Seventh Circuit between F.R.E.

801(d\2\(D) and 801(d)(2)(E) is wrong.

CONCLUSION

The Judgment below is a unique and unprecedented

departure from the requirement of the Sixth Amendment

to the Constitution that the accused must be confronted

with the witnesses against him. The Court below has

decided an important question of federal evidentiary law

which has not been but should be settled by this Court. This

Petition for a Writ of Certiorari should therefore be

granted.

Respectfully submitted,

Don A. Tabbert

Robert B. Keene

Attorneys for Petitioner

BAYH, TABBERT & CAPEHART

One Indiana Square, Suite 1500

Indianapolis, Indiana 46204

(317) 639-5444

la

=>

Auited States Court of Appeals

Ber the Srorath Circa

No. 82-1382

UNITED STATES OF AMERICA.

Plerat yf A portier

Rosert S. CHAPPELL.

Lirteetar! Appeiscet

Apoes) fromm the | eoted States Uewtret (curt ber Or

Sewtarr: lestret of imtasa

Ne IP 7350CER—Wiliiee E Seechier. Jot

Agcuep OcTroser 25. S82—Decmwen Jasvany lh. ISD

Before CUMMINGS. Chuef Judge. Woon. Correct Judg

2a No. 82-1382

carried out a scheme to defraud investors in his company,

General Oil, Inc., by making certain specific mis-

representations concerning the use of the funds invested

and potential returns. Count I of the indictment set forth

the alleged scheme to defraud which was then incor-

porated by reference into each of the remaining ten

counts? Each count pertained to a different investor and

each count alleged a specific mailing.

A jury convicted Chappell on Count 10 which con-

cerned a letter from Chappell addressed to Gene and Lloyd

Sellers, and on Count 11 which concerned a letter from

Chappell to Andrew Hasenour. Both letters were dated

April 14, 1977. On appeal, Chappell contends: 1) that in-

sufficient evidence was presented at the trial to convict

him of the crime of mail fraud; and 2) that the trial judge

erred in admitting into evidence certain documents pur-

porting to be the books and records of Chappell’s corpora-

tion, and in permitting the District Attorney to read to

the jury portions of a transcript of an interview with a

deceased former employee of the corporation. After a full

review of the record, we find Chappell’s arguments to be

without merit and therefore affirm his conviction.

1 continued

representations or promises, . . . for the purpose of ex-

ecuting such scheme or artifice or attempting so to do

places in any post office or authorized depository for mai

matter, any matter or thing whatever to be sent or

delivered by the Post Office Department, or takes or

receives therefrom, such matter or thing, or knowingly

causes to be delivered by mail according to the direction

thereon, or at the place at which it is directed to be

delivered by the person to whom it is addressed, any such

matter or thing, shall be fined not more than $1,000 or im-

prisoned not more than five years, or both.”

2 The original indictment charged 12 counts of mail fraud

and 3 counts of inducing persons to travel in interstate com-

merce in execution of a scheme or artifice to defraud. 18

U.S.C. § 2314. Prior to trial 4 counts were dismissed, leaving

10 counts charging mail fraud and 1 count charging the in-

ducement of persons to travel in interstate «merce.

No. 82-1382 3a

Facts

In March 1975, Chappell formed General Oil, Inc., un-

der the laws of the State of Indiana. Shortly thereafter,

he purchased the oil and gas rights to a 150 acre tract of

land located in Warren County, Pennsylvania from

Maurice Dickey. There were regularly producing oil

wells located all around the tract of land and it was

regarded as a likely location for the production of oil.

Chappell then filed a Schedule D offering with the

Securities and Exchange Commission (the “SEC”) con-

cerning the first oil well to be drilled. Basically, a

Schedule D is a question and answer form intended to

provide information to potential investors in regard to

the project. After the SEC approved the Schedule D,

Chappell began to sell interests in the future oil wells.

Each investor received a copy of the Schedule D and

signed a copy of the Operating Agreement, which is the

agreement between General Oil and each individual in-

vestor. Under the terms of the Schedule D and the

Operating Agreement, investors bought only an invest-

ment in the oil wells, and did not become a shareholder in

General Oil or entitled to any of the profits of the cor-

poration.

The tract of land was large enough for thirty wells and

investors were told that thirty wells would be drilled.

Only ten wells were ever drilled. Nine of the wells

produced oil, but only in very small quantities.

In March 1976, the SEC began an investigation of

General Oil and Chappell, and eventually insisted that a

separate Schedule D be filed for each well drilled. The

SEC later began a civil action in the Southern District of

Indiana, and in July 1976 Chappell and General Oil

agreed to the entry of a consent decree whereby no new

investors would be sought for the project.

There is no question that corporate funds were used to

purchase commercial real estate in Indiana for the pur-

pose of opening a business to sell fine art. Chappell also

transferred to General Oil a motel located in Little Rock,

Arkansas which he had purchased prior to starting the

4a No. 82-1382

corporation. The motel was carried on the books and

records of the corporation and corporate funds were ex-

pended on it. Chappell also wrote checks on the corporate

checking account for personal and family expenses in-

cluding support payments to his wife. The books and

records of General Oil apparently accurately reflected

0 aaa which were charged to Chappell per-

sonally.

In April 1977, the SEC renewed its investigation of

Chappell. On April 21, 147, representatives of the SEC

took Chappell’s testimony, and at that time he indicated

that certain books and records of the corporation were

- ors possession of Anthony Ricci, who was located in

orida.

On May 2, 1977 representatives of the SEC’s Florida

office took testimony from Ricci. They also received the

books and records of the corporation that were in his

possession. At Chappell’s trial, these books and records

were received into evidence, over objection, as Govern-

ment Exhibits 16A-K. Portions of Ricci’s testimony as

given to the SEC were read to the jury, but the transcript

itself (Government Exhibit 16L) was not admitted as

evidence. Ricci had died over a year before trial.

Sufficiency of the Evidence

Chappell first contends that the evidence pertaining to

the counts on which he was acquitted may not form the

basis for inferences against him on Counts 10 and 11. He

claims that the convictions on Counts 10 and 11 must

stand or fall on their own weight and that there was in-

sufficient evidence presented on those counts to support a

conviction. Basically, Chappell claims that the mailings

alleged in Counts 1 through 9 covered a time span up to

and including April 12, 1977, and that his acquittal on

those counts shows that the jury felt that there was no

scheme to defraud up to that period in time. Therefore,

Chappell argues that it is logically inconsistent for the

jury to convict him on Counts 10 and 11 since the

mailings alleged in those counts occurred just two days

No. 82-1382 5a

later on April 14, 1977. Chappell offers no support for

this theory and in fact this precise argument was rejected

in United States v. Reicin, 497 F.2d 563 (7th Cir. 1974).

As the Reicin court so aptly stated, “[t)his assault by

defendant on his conviction stems primarily from his

narrow view of a mail fraud charge. .. .” /d. at 567.

Chappell has not viewed the evidence as a whole or in the

light most favorable to the Government and has generally

ignored the function of the jury in a criminal trial. The

evidence presented concerning the various investors

overlaps and cannot be viewed in a vacuum. See United

States v. Hutul, 416 F.2d 607, 617 (7th Cir. 1969), cert.

denied, 396 U.S. 1012 (1970). The fact that the jury ac-

quitted Chappell on nine of the eleven counts does not

mandate the conclusion that the jury determined that

there was no overall scheme to defraud investors. In

analyzing the verdict, Chappell has failed to take into ac-

count the possibility that the jury might have been exer-

cising “its historic power of lenity.” United States v. Car-

bone, 378 F.2d 420, 423 (2nd Cir. 1967), cert. denied, 389

U.S. 914 (1967). As pointed out in United States v. Fox,

433 F.2d 1235, 1238 (D.C. Cir. 1970), “juries frequently

convict on some counts but acquit on others, not because

they are unconvinced of guilt, but simply because of

compassion or compromise.” Chappell has invited us to

speculate as to why the jury acquitted him on the first

nine counts and yet convicted him on the remaining two

counts. We decline to do so, for such speculation cannot

overturn a verdict. Dunn v. United States, 284 U.S. 390,

394, 52 S.Ct. 189 (1932).

Chappell also contends that the mailings alleged in

Counts 10 and 11 were mailed after any alleged scheme

reached fruition and therefore they were not mailed for

the purpose of executing a scheme to defraud as required

by the statute. Chappell argues that the letters were

mailed after he received the money from the investors in-

volved, and therefore the scheme to defraud had already

been completed at the time of the mailing.

This argument is wholly without merit. The April 14,

1977 letters gave the investors a status report on the

6a No. 82-1382

production of oil over the winter, and also stated that any

action to sell the oil lease was being postponed due to the

prospect of an increase in the price of oil. Precedont has

established that the use of the mails to “lull” victims into

a false sense of security may be “for the purpose of ex-

ecuting” a scheme to defraud, even though the mailings

were made after the money had been fraudulently ob-

tained. United States v. Shelton, 669 F.2d 446 (7th Cir.

1982); United States v. Wrehe, 628 F.2d 1079 (8th Cir.

1980). After viewing the documents and the cir-

cumstances surrounding their mailing, we are satisfied

that sufficient evidence was presented for a jury to con-

strue them as “lull” letters designed to mislead the in-

vestors into a false sense of security.

Alleged Trial Errors

Chappell maintains that the trial judge erred in admit-

ting the books and records of General Oi! into evidence

and in permitting the Government to read to the jury

portions of Ricci’s testimony to the SEC. Specifically,

Chappell claims that both the documents and the

testimony constituted inadmissible hearsay and that their

admission violated the Confrontation Clause of the Sixth

Amendment.

At trial, the Government argued that the books and

records were admissible under the Federal Rules of

Evidence (“FRE”) 804(bX5) and 803(24) which are the

catch-all exceptions to the hearsay rule, and under 803(6)

which is the exception allowing the introduction of

business records. The trial court, after a lengthy hearing,

admitted the documents under FRE 803(6), 804(b)(5),

and 801(dX2XD) which defines admissions by a party-

opponent through an agent as not hearsay. Ricci’s

testimony to the SEC was also admitted under Rule

801(dX2)(D). At oral argument, counsel for the Govern-

ment relied on Rule 803(6) as the basis for the ad-

missibility of the documents and therefore we will limit

our discussion to that rule.

FRE 803(6) classifies business records as admissible

hearsay if they are kept in the course of a regularly con-

No. 82-1382 7a

ducted business activity, and if it was the regular prac-

tice of that business activity to make the records, as

shown by the testimony of the custodian or other

qualified witness. The records are not to be admitted

however, if the source of information or the method or

circumstances of preparation indicate a lack of trust-

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

Chappell argues that the records were not admissible

under Rule 803(6) because there was no showing that

they were reliable or trustworthy. Actually, Chappell

does not dispute the reliability of the records, only the

Government’s ability to lay a proper foundation for them

since Ricci, the custodian, had died prior to the trial.

To support the reliability of the records, the Govern-

ment offered the testimony of two former employees of

General Oil who both stated that Ricci was the book-

keeper for the company. SEC agent Paul testified that

Chappell told him that Ricci was maintaining the books

of General Oil. Paul also testified that he was a licensed

Certified Public Accountant and that he examined the

books and records obtained from Ricci and that they

mg tar to be records made in the ordinary course

of business. He further testified that he corroborated the

information contained in the books and records with

checks, bank statements and other records and found

that all the entries appeared accurate. Finally, and most

importantly, the Government offered portions of Ricci’s

testimony as given to the SEC in May 1977. In that

testimony Ricci stated that he was the accountant for

General Oil and that he maintained the books and

records. He also identified each of the exhibits and

described how he posted entries and prepared schedules.

This testimony was clearly admissible under FRE

801(dX 2D). That rule defines as not hearsay any admis-

sion by a party-opponent through his agent concerning a

matter within the scope of the agency, if made during the

existence of the relationship. While it is true, as ae

asserts, that Ricci was no longer on the General Oil

Oe at the time that he gave testimony to the

C, he was nonetheless still acting as General Oil's

8a No. 82-1382

bookkeeper. Only twelve days prior to Ricci’s testimony,

Chappell himself told the SEC that Ricci was still acting

as General Oil’s accountant and that the books and

records were still in Ricci’s possession. Ricci’s testimony,

properly admitted as an admission by a party-opponent,

laid the foundation for the admission of the General Oil

books and records. Chappell’s allegations of error regard-

ing the admission of the documents and the testimony

are therefore without merit.

Chappell’s final argument is that regardless as to

whether the records and testimony were admissible un-

der various exceptions to the hearsay rule, their admis-

sion violated his Sixth Amendment right to confronta-

tion.

In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980),

the Supreme Court reviewed the overlapping character

of the hearsay exceptions and the Confrontation Clause.

The Court noted that the Confrontation Clause counte-

nances only hearsay testimony which is marked with

trustworthiness. As summarized by Justice Blackmum,

when a hearsay declarant is not present for cross-

examination at trial, the Confrontation Clause nor-

mally requires a showing that [the declarant] is un-

available. Even then, [the declarant’s}] statement is

admissible only if it bears adequate “indicia of

reliability.” Reliability can be inferred without more

in a case where the evidence falis within a firmly

rooted hearsay exception. In other cases, the

evidence must be excluded at least absent a showing

of particularized guarantees of trustworthiness.

448 USS. at 66, 100 S.Ct. at 2534 (footnote omitted).

In view of Ricci’s death prior to the trial, there can be

‘no question as to the unavailability of the hearsay

declarant. The books and records clearly fell within a

firmly rooted hearsay exception and reliability can be in-

ferred as to them. Ricci’s testimony, as a party admission,

does not fall into a hearsay exception but rather is defined

No. 82-1382 9a

as not hearsay. Fed. R. Evid. 801(dX2XD). The exclu-

sion of party admissions from the definition of hearsay,

unlike most hearsay exceptions, is not grounded on a

probability of trustworthiness but rather on the idea that

a party cannot object to his failure to cross-examine

himself. See 4 Weinstein and Berger, Weinstein’s Evi-

dence 1801(dX2¥01} (1981). Therefore, in the case of

an admission by an agent, a separate Confrontation

Clause analysis would appear to be necessary. This

Court has repeatedly held however, that extrajudicial

statements properly admissible under FRE 801(dX2)(E)

(admissions by coconspirators) do not violate a defen-

dant’s Sixth Amendment rights. United States v. Papia,

560 F.2d 827, 836 n.3 (7th Cir. 1977). The similarities

between coconspirators and agents are readily apparent,

and we see no reason to differentiate between them for

Confrontation Clause analysis purposes. In any event,

there clearly were adequate indicia of reliability sur-

rounding Ricci’s testimony. He gave his statement under

oath, and it was recorded by a qualified court reporter.

Although the reporter did not certify the transcript, the

SEC attorney who questioned Ricci testified at the trial

as to the reliability of the transcript. And while it is also

true, as Chappell asserts, that Ricci was not subject to

cross-examination, there is absolutely no reason to

suspect that Ricci did not tell the truth. Chappell cannot

int to any prejudice that resulted from the admission of

icci’s testimony, and has never questioned the accuracy

of the books and records. Indeed, Chappell has steadfast-

ly maintained that the records accurately reflect his per-

sonal transactions. Under these circumstances, we cannot

conclude that Chappell’s Sixth Amendment rights have

been violated.

10a No. 82-1382

Conclusion

Although Chappell has presented resourceful argu-

ments, he has been unable to convince us that there

was insufficient evidence to convict him or that inad-

missible evidence was allowed to reach the jury. Ac-

cordingly, the conviction is affirmed.

AFFIRMED

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA 30224—Midwest Law Printing Co., Inc., Chicago—1-14-83—400

lla

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 10, 1983

Before

Hon. WALTER J. CUMMINGS, Chief Judge

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. ABRAHAM LINCOLN MAROVITZ,

Senior District Judge*

UNITED STATES OF Appeal from the United

AMERICA, States District Court for the

Plaintiff-Appellee, Southern District of

Indiana, Indianapolis

No. 82-1382 vs. Division.

No. IP 79-50-CR

ROBERT S. CHAPPELL, William E. Steckler, Judge

Defendant-A ppellant.

ORDER

On consideration of the petition for rehearing filed in the

above-entitled cause by defendant-appellant Robert S.

Chappell, all of the judges on the original panel having

voted to deny the same,

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing be, and the same is hereby, DENIED.

* The Honorable Abraham Lincoln Marovitz, Senior District Judge

of the Northern District of Illinois, is sitting by designation.

12a

onremoant

ci 14 ROBERT S. CHAPPELL =o ‘ oocnay wo. Be _ IP 79-50-CR J

Jn the prevence of ihe atlorney for ihe government Vr)

the defendant sppeared in perwon on ths date

=

— reh_ 1, 1962

Counses Ld WITHOUT COUNSEL «—s However ihe court strned Getenaant of Fant to COwnel and asked weiner Gefeneent Gewred to

Rave OUI AP RONIEE By IME LOUr! Ond IME OFTEN En! INETPUROR wares erertame Of ounut

kX withcounsen «wlaaea Scadfard, bis otivately engaged _cauasel —

ed GUILTY and the court hemng vatified that LW. J NOLO CONTENDERE NOT GUILTY

mea there 4 factual Baws for (he pies,

beeed NOT GUILTY Detendant » den narged

hu GUILTY

Detendant hay been conwcted as charged of the offemetiof mail fraud in violation of

18 U.S.C, §1341, as charged in Councs 10 and 11( which counts

were originally numbered counts 14 and 15 ) of the Indicemenc.

There being 4 finding verdict of

| Tre ourt eked a hether detendars Pad omy (hing 10 tay @ hy bud EMent Would NOt Be Pronounced Ber aure FO wll ent . suHe 18 (Ms. Ontary

© ROOK, OF UPOERED 10 ThE COUT. Ihe Court sdrudend Ihe Jelendant qwilty 9 Charged 4nd Comwcted ine ordered that The derenaant

Pere®y (Om Led Le INO Vantage of The Attorney Genera oF hoy suihor red representative for mp oem at tor sp.rud oF

three (3) yeere on Count 10 of the Indictment and two (2) years

on Count ll of the Indictmenc.

win S LT IS FURTHER ADJUDGED that the execution of said sentence on

parganion Count 11 is hereby cuspended and defendanc placed on probation

OROER for a period of four (4) years. Such period of probation shall

be consecutive to the sentence imposed on Count 10 including any

parole or other supervision time.

specian

CONDITIONS

or

FRoeaTiON

abe Da son? mnered shore tn hs w der hp | oes ¢ “ce

— ow ode ot ~4 pay hth eed ine Cows ed sna . a ” oe ose 14 ae My ~~ “om dl ma 7

s$.haN r suite wiotene gree pear :

The Lourt orders Commitment tu (he custody of ine Attorney General snd i

| ow March 1. 1942)

470 ¢ Suet. 4, Aw ro