# Petition — Chappell v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0765%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 931

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0765%3A1. Public record. Not legal advice.