Petition — Stillman v. United States

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Office-Supreme Court, U.S.

83-319 Ss FILED

No. Ais 26 1953

ALEXANDER L. STEVAS

CLERK

3x the

Supreme Court of the United States

OcroBerR TERM, 1983

MARSHALL STILLMAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JAMES M. SHELLOW

JAMES A. WALRATH

SHELLOW, SHELLOW & GLYNN, S.C.

222 East Mason Street

Milwaukee, Wisconsin 53202

(414) 271-8535

Counsel for Petitioner

Of Counsel

STEPHEN A. SaLTZBURG

Professor of Law

University of Virginia Law School

Charlottesville, Virginia 22901

August 26, 1983

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

QUESTIONS PRESENTED

1. Was it error for the trial judge to admit conspirator

statements without making any finding that the state-

ments met the requirements of Fed. R. Evid. 801?

2. Did the trial judge deprive the defendant of the

protections of Fed. R. Evid. 602 and 801(d)(2)(E) and

of the Sixth Amendment Confrontation Clause by ad-

mitting conspirator statements without any proof that

they were based upon personal knowledge and in the face

of evidence that the declarants lacked personal knowledge?

3. Did the trial judge violate the Sixth Amendment

Confrontation Clause and Fed. R. Evid. 806 when he

refused to permit a defendant to impeach the hearsay

declarant who provided the most important evidence

against him?

4. Did the trial judge deny confrontation rights when

he prevented impeachment of the witness who reported

hearing the conspirator statements and who provided the

most important independent evidence against the defen-

dant?

PARTIES TO PROCEEDING BELOW

In addition to petitioner and respondent, Ghassan Am-

mar, Judith Ammar and Roger McFayden were parties

below.

TABLE OF CONTENTS

Opinion Below ....-...ecssvessssssssssssssseseerssesssnnmnnstecesnnnnnnssseeeee 1

Jariwdiction ............i.cesceccscessvsevesecnssssescssssnsseenennsensensnensrsseneses 1

Constitution and Rules .........:.e:sc:csesesessceereeenerenereeersnes 2

Statement of the Case ......-...cseccssesessseesensenssnsneensneerenenense 3

Reasons for Granting the Writ)... s

COMCHUSION .........0...00cessecessersserseccorssensssseesscsesenoneeseseserenaaneseses® 23

Appendix :

1. Slip opinion of the Court of Appeals for the

Third Circuit dated June 30, 1983. ...............APP. 1

Order of the Court of Appeals for the Third

Cireuit denying petition for rehearing dated

Sealy 22, 19GB ..n..eseensesecsessssrneeneerenrsenennenses vee pp. 66

iii

TABLE OF AUTHORITIES

Cases

PAGE

Bruton v. United States, 391 U.S. 123 (1968) ........... 20

Davis v. Alaska, 415 U.S. 308 (1974) on... eeeeeee 19

Dutton v. Evans, 400 U.S. 74 (1970) .......cccecsssseeee 16, 17

Glasser v. United States, 3915 U.S. 60 (1942) oo.

Krulewiteh v. United States, 336 U.S. 440 (1949) ....8, 12, 24

Lego v. Twomey, 404 U.S. 477 (1972) ooccccecccctesteteeneeees

United States v. Andrew, 666 F.2d 915 (Sth Cir, 1982) ..

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

United States v. Bulman, 667 F.2d 1374 (11th Cir.),

cert. denied, 102 S.Ct. 2805 (1982) .........c..cccccceesees

United States v. Civella, 666 F.2d 1122 (8th Cir. 1981)

United States v. Continental Group, Inc., 603 F.2d 444

(3d Cir. 1979), cert. denied, 444 U.S. 1032 (1980) ....

United States v. James, 590 F.2d 575 (5th Cir.) (en

banc), cert. denied, 442 U.S. 917 (1979) ..ceeeeeeee

United States v. Mastropieri, 685 F.2d 776 (2d Cir.),

cert. denied, 103 S.Ct. 260 (1982) oon.

Constitution, Statutes and Rules

PAGE

Sixth Amendment Confrontation Clause ........ i, 2, 13, 17, 18,

19, 20, 21, 22, 23, 24

I RE Be Spiele eens ad NAN SAN 2

ae eet TE GERM RNR ca a TIA AN ee ee ele ee 2

eh ae a 18 TD ee a he 10, 11

Py on COD 10

ee ee es ee a oe 2,13

Fed. R. Evid. 613 _................ Spaseactiiinnasnsisiboesicttadee scsi 21

SS SPR ARIRER eee Ae eet OF Pisa EOE CR Ee 13

se a ON eRe ase 4

wee me See, SUNG) (9)(B) st 14

Fed. R. Evid. 801(d)(2)(B)) ocececcccceceee 2, 9, 11, 13, 14, 15

ne cn as SS ee ee y

ei ae Rn Got ee eee 16

I Ty I coe ee ee 16

I IS IS ec cttniveseccd thse easeemee eee 2, 16, 19

Other Authorities

E. Morgan, Basic Problems of Evidence (1963)... 15

In the

Supreme Court of the United States

(hoToBER ‘TERM, 1983

No.

MARSHALL STILLMAN,

Petitioner,

UNITED STATES OF aerica,

Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

OPINION BELOW

The opinion of the United States Court of Appeals

rendered on June 30, 1983, is unreported. It is contained

in the Appendix to this Petition.

JURISDICTION

Petitioner was convicted in the United States District

Court for the Western District of Pennsylvania. A timely

appeal was taken to the United States Court of Appeals

for the Third Circuit pursuant to 28 U.S.C. § 1291. The

Court of Appeals issued its opinion on June 30, 1983. A

petition for rehearing was denied on July 22, 1983 (con-

tained in the Appendix). Review in this Court is sought

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTION AND RULES

U.S. Const. amend. 6 provides in part:

In all criminal prosecutions, the accused shall enjoy

the right... to be confronted with the witnesses

against him....

Fed. R. Evid. 602 provides in part:

A witness may not testify to a matter unless evi-

dence is introduced sufficient to support a finding that

he has personal knowledge of the matter. Evidence

to prove personal knowledge may, but need not, consist

of the testimony of the witness himself.

Fed. R. Evid. 501(d)(2)() pyovides in part:

(d) Statements Which Are Not Hearsay. A state-

ment is not hearsay if—

(2) Admission by party-opponent. The state-

ment is offered against a party and is... (E) a

statement by a coconspirator of a party during

the course and in furtherance of the conspiracy.

Fed. R. Evid. 806 provides:

When a hearsay statement, or a statement defined

in Rule 801(d)(2), (C), (D), or (E), has been ad-

mitted in evidence, the credibility of the declarant may

be attacked, and if attacked may be supported, by any

evidence which would be admissible for those purposes

if declarant had testified as a witness. Evidence of a

statement or conduct by the declarant at any time,

inconsistent with his hearsay statement, is not subject

to any requirement that he may have been afforded

an opportunity to deny or explain. If the party

against whom a hearsay statement has been admitted

calls the declarant as a witness, the party is entitled

to examine him on the statement as if under cross-

examination.

STATEMENT OF THE CASE

Marshall Stillman was convicted in the Western District

of Pennsylvania of membership in two conspiracies: one

to distribute and possess heroin with intent to distribute

and another to import heroin. His convictions were af-

firmed by the United States Court of Appeals for the

Third Cireuit.

The government's Case involved eleven people, nine of

whom were indicted together. It is necessary to describe

them briefly in order to indicate the importance of the

issues raised in this Petition for Certiorari.

The key figure in the government's case was Ghassan

Ammar (hereinafter Ghassan). The government claimed

that he was the hub of the conspiratorial activity. Along

with his wife Judith, Ghassan was tried together with Still-

man. Both were convicted. Ghassan’s father, I[brabam,

and his uncle, Abedeen, also were indicted. They lived

in Lebanon and were fugitives at the time of trial. Another

Lebanese, Dahabi, was indicted, but he, too, was a fugitive.

The government charged five other persons as partici-

pants in the heroin activity: Rossi, Dugan, Welkie, Bun-

ner and McFayden. Two, Rossi and Dugan, were in-

dicted in this case and pleaded guilty to conspiracy to

distribute and to possess with intent to distribute heroin.

They testified at the trial. The other two, Welkie and

Bunner, were not indicted in this case, but pleaded guilty

to a related indictment and also testified at the trial. The

final defendant, McFayden, was indicted and tried with

Stillman and was also convicted.

The conspiratorial activity spanned the period from

January 1980 to October 1980, It involved the importation

of heroin from Lebanon through Toronto and New York.

The government contended that Ghassan was the center

of the conspiracy in Erie, Pennsylvania. The govern-

ment’s theory was that Ghassan's relatives in Lebanon

placed marijuana in hollowed-out chair legs that were

sent to the United States in luggage carried by one of the

conspirators.

The government offered substantial evidence showing

that Ghassan and his Lebanese relatives actually did

smuggle heroin into the United States and that Ghassan,

Judith, Welkie, Rossi and Dugan took possession of the

heroin once it reached the United States. No defendant

disputed the government's claim that heroin had been

imported and possessed by these persons. No defendant

challenged the fact that a conspiracy had existed that in-

volved heroin. Each claimed that he was not a member

of that conspiracy.

Ghassan was, as the government conceded, an undercover

informant. He claimed that he had been acting in this

role and thus that he had been trying to aid law enforce-

ment rather than to break the law. Federal and state

law enforcement officers testified that Ghassan had agreed

to act as an informant as part of a plea agreement in a

State prosecution in which he was a defendant. They

testified, however, that sinuggling heroin into the United

States was not part of his agreement. Judith, the only

defendant who testified at trial, stated that she believed

that her husband was acting as an informant and that

in assisting him she was acting on behalf of the government.

Stillman’s defense was that he was not involved with

the heroin activity in any way. He never disputed that

he knew Ghassan and Judith socially and that they visited

him when they came to his home town, Detroit. But he

vigorously disputed the evidence that the government used

to suggest that he was involved in Ghassan’s and Judith’s

heroin trafficking.

No witness at trial directly accused Marshall Stillman

of participation in the heroin scheme. No trial witness

claimed to have seen Stillman deliver, receive or other-

wise possess heroin. No trial witness claimed to have

seen Stillman deliver, receive or otherwise possess large

amounts of money. No trial witness claimed to have

spoken with Stillman about the heroin involved in the

ease. No trial witness claimed to have met with Stillman

to make arrangements for him to participate in the handling

of heroin. No witness even claimed to have spoken on

the phone with Stillman about the heroin in this case.

In short, not one witness who testified at trial claimed

to have personal knowledge that Stillman knew that

Ghassan, Judith and the others were involved with heroin.

What, then, was the evidence against Stillman! It in-

volved hearsay statements by Ghassan and other con-

spirators almost exclusively. The government’s trial evi-

dence focused on three separate receipts of heroin by

Ghassan. The first took place in May 1980. There is not

one shred of evidence that Stillman was involved. And

the government did not argue to the Court of Appeals

that there was.

‘The second transaction took place in June 1980. Ghassan

arranged for Dugan and Rossi to travel with himself and

his wife abroad to obtain heroin which Ghassan said was

intended for someone in Detroit. The group traveled to

Amsterdam together and Ghassan and Judith went on to

Beirut. The group subsequently returned together to New

York. From there they went to Erie, Pennsylvania, where

they placed the heroin in plastic bags. They later traveled

to Detroit where Rossi saw Ghassan and his father meet

with Stillman in a hotel lobby. Rossi gave no tes-

timony indicating that the meeting involved the heroin

or that anything illegal occurred. A few days later Rossi

returned to Detroit with Ghassan and his father. During

this trip Ghassan—only Ghassan—met with Stillman again.

Rossi gave no testimony suggesting that he knew that this

meeting involved drugs. Rossi did say, however, that a

few days later Ghassan told him that he had left heroin

with Stillman. According to Rossi, a few more days passed

and he returned with Ghassan to Detroit. Ghassan re-

lated a phone call, to which Rossi was not a party, and

Ghassan said that Stillman and a friend were going to

meet him. However, Rossi saw Ghassan with a man named

Jim, not with Stillman, on this occasion.

The third transaction took place in July 1980. Ghassan

and Judith smuggled heroin into New York from Beirut.

Rossi met them and testified that Ghassan’s father said

that Stillman owed money and would have to pay before

getting heroin. Welkie and Bunner went with Ghassan to

Detroit. Welkie said that he saw Ghassan meet with

Stulman and reported that Ghassan said that Stillman

had paid money that he owed, although Welkie did not

see this occur. Later, Welkie saw Ghassan with a large

sum of money. According to Welkie, on this trip Ghassan

summoned him from the hotel room in which he was

staying to the lounge where Ghassan was with Still-

man; outside of Stillman’s presence, Ghassan told him

to get a package that contained heroin from a hotel room;

he did so; he brought the package to the lounge; Stillman

told him to deliver it to an unidentified man; and he did

so. Welkie had no personal knowledge of what Stillman

knew about the package or of the relationship of Stillman

and the person to whom Welkie gave the package. Before

the grand jury, Welkie had testified that he gave the pack-

age to Stillman himself, a story that he repudiated at

trial. Welkie had told the undercover agent in charge

of the investigation of Ghassan and the others, Agent

Schmotzer, that it was Ghassan, not Stillman, who had

directed him to give the package to the unknown man,

another story repudiated by his trial testimony. Welkic

was a heavy user of heroin and probably an addict at the

time of the events about which he testified.

The most important testimony in the case involved the

statements allegedly made by Ghassan and other conspira-

tors, none of whom testified, concerfting Stillman. With-

out those statements, there was no evidence, other than

Welkie’s dubious trial testimony, to support a conclusion

that Stillman’s relationship with Ghassan was anything

more than that of friends. And it is the proof of Ghassan‘s

statements and the rulings relating thereto that are the

subject of this Petition for Writ of (‘ertiorari.

REASONS FOR GRANTING THE WRIT’

WAS IT ERROR FOR THE TRIAL JUDGE TO ADMIT

CONSPIRATOR STATEMENTS WITHOUT MAKING

ANY FINDING THAT THE STATEMENTS MET THE

REQUIREMENTS OF FEDERAL RULE OF EVIDENCE

801?

As noted in the Statement of the Case, supra, the conspir-

ator statements were crucial evidence against Stillman. As

in many conspiracy cases, Stillman was unable to examine

the persons who uttered the statements. Ghassan was

unavailable because he was a defendant in the case and

able to avail himself of his privilege against self-in-

crimination; and other declarants—Ghassan’s father, for

example—were unavailable because they were fugitives.

Justice Jackson's separate opinion in Arulewttch v. United

States, 336 U.S. 440, 454 (1949), sketched the plight of the

conspirator who claims to be not guilty in a case in which

others clearly are guilty:

A co-defendant in a conspiracy trial occupies an

uneasy seat. There generally will be evidence of

wrongdoing by somebody. It is difficult for the in-

dividual to make his own case stand on its own merits

in the minds of jurors who are ready to believe that

birds of a feather are flocked together. If he is silent,

he is taken to admit it and if, as often happens, co-

defendants can be prodded into accusing or contradict-

ing each other, they convict each other.

1 All issues noted herein were raised by timely objection or

motion in the district court and were expressly considered in

the decision of the Court of Appeals (App. 1).

The ‘‘uneasy seat’’ is complicated when codefendants

are claimed to have made statements that cannot be cross-

examined because the declarants are unavailable to the

defendant who challenges the statements. Marshall Still-

man occupied that uneasy seat in this case.

His only protection lay in the enforcement of the re-

quirements of the long-established rule governing the ad-

missibility of statements which would be inadmissible hear-

say but for the fact they are offered as ‘‘conspirator

statements.’’ There is no doubt that the statements of

Ghassan and others were offered for their truth. It was

these statements that alleged that Marshall Stillman was

involved in the heroin trafficking.

Federal Rule of vidence sO1(d)(2)() provides that

a statement that would otherwise be hearsay under Rule

801(c), and therefore inadmissible under Rule 802, may

be admitted if it is made ‘by a conspirator of a party dur-

ing the course and in furtherance of the conspiracy.’’ The

rule codifies the common law exception to the hearsay rule.

Although the rule on its face contains no indication that

the trial judge must find evidence of a conspiracy suffi-

cient to warrant a belief that the declarant who made state-

ments and the defendant against whom they are offered

both were coconspirators when the statements were made.

this finding was required at common law—see, €.g., Glasser

v. United States, 315 U.S. 60, 74-75 (1942)—and every

court of appeals continues to insist upon it. The Third

Cireuit recognized this in its opinion (App. 89).

‘he courts of appeals have now developed a relatively

uniform approach that requires the trial judge to de-

termine that there is sufficient evidence of conspiracy to

justify admission of conspirator statements. The majori-

ty of circuits requires the judge to decide by a preponder-

ance of the independent evidence (i.¢., the evidence inde-

pendent of the conspirator statements olfered by the gov-

ernment) that a conspiracy involving the declarant who

made the statements and the defendant against whom the

statements are offered was in existence when the state-

ments were made and that the statements were in further-

ance of the conspiracy. The Third Circuit had previously

adopted this approach and reiterated its adherence to it in

its opinion in this case (App. 8 & n.3). The problem

in this case arose because the trial judge failed to make

the requisite determination.

The only statement by the trial judge arguably approxi-

mating such a determination was his finding early in the

case that there was threshold evidence of conspiracy

(App. 11). According to the Court of Appeals, this state-

ment demonstrated that the judge enforced the evidence

rule governing conspirator statements. But the record in

this case indicates that the trial judge looked only to see

that there was some evidence of conspiracy and failed

to assess the independent evidence himself before he per-

mitted the conspirator statements to come before the jury.

The proof of this is clear:

a. The trial judge rejected a motion by the defen-

dants to hold a hearing under Fed. R. Evid. 104 (a)

on the admissibility of conspirator statements. He

stated that Rule 104(b) required no more than his

threshold ruling (App. 10). Rule 104 (b) permits

the introduction of evidence if it is relevant; it en-

visions no screening to see whether the evidence is

competent to be used against a defendant.

b. When the judge first admitted the conspirator

statements, he told the jury that it was not to use them

against Stillman ‘‘until there is something more to

connect him up with [the conspiracy].’’ This shifted

to the jury the task of reviewing the other evidence

and ignored the judge's responsibility of ruling on

admissibility.

c. In his final jury instructions, the judge again

told the jury not to use statements against a defendant

until it found him to be a member of the conspiracy.

This instruction made little sense, but it indicated

that the judge was shifting the burden of assessing

the independent evidence to the jury.

A defendant in the position of Stillman has little protec-

tion against untrue and unreliable statements by codefen-

dants and alleged coconspirators. In fact, his only pro-

tection is the rule of evidence that requires a finding by

the judge of independent evidence of a conspiracy. With-

out that protection, a defendant may be convicted on the

basis of hearsay statements that he is unable to challenge

and that bear no indicia of trustworthiness.

(Ome member of the panel who heard this case, Judge

Becker, felt bound by a prior decision of the circuit, United

States v. Continental Group, Inc., 603 F.2d 44 (3d Cir.

1979), cert. denied, 444 U.S, 1082 (1980), to agree that a

court of appeals might infer that a trial judge made the

finding required by Rule 501 (d)(2)(E), but Judge Becker

urged reconsideration of that decision:

Rule 104(a) allocates the determination of preliminary

questions concerning the admissibility of evidence to

the court. Proper performance of that screening func-

tion is essential to the fair conduct of conspiracy

trials, especially of complex, multi-count conspiracy in-

dictments.

(App. 57) (concurring opinion by Becker, J.). He ex-

pressed concern that the independent evidence was in-

sufficient as to Stillman and that the trial judge failed

carefully to scrutinize that evidence (App. §1-62). He

indicated that he would have granted a rehearing (App.

64).

Other courts have established that findings by the trial

judge are required before conspirator statements may be

used as evidence by a jury. See, e.g., United States v.

James, 590 F.2d 575, 582-83 (Sth Cir.) (en banc), cert.

denied, 442 U.S. 917 (1979) (requiring findings by the

court); United States v. Bell, 573 F.2d 1040, 1044 (Sth Cir.

1978) (requiring explicit findings); see also United States

v. Mastromeri, 685 F.2d 776, 789-90 (2d Cir.), cert. dened.

103 S.Ct. 260 (1982) (judge must decide admissibility of

statements, not jury).

The Court of Appeals’ approach in the instant case as-

sumed a finding that was never made and ignored the trial

judge’s plain shifting of his own responsibility to screen

the independent evidence to the jury. This assumption

disturbed Judge Becker, who was unwilling to presume

that a trial judge adequately screened conspirator state-

ments when nothing in the record suggested that he actual-

ly did and much of the record suggested he used the wrong

approach. The effect of the Court of Appeals’ decision

is to remove from the defendant the only protection that

he has against unreliable evidence. It turns the ‘uneasy

seat’’ to which Justice Jackson referred in Arulewitch vy.

United States, supra, into an intolerable one.

Because the Court of ppeals’ approach is inconsistent

with that used in other circuits and denies defendants

like Stillman a fair trial in a conspiracy case, this Court

should grant ceitiorari to review the question of what

findings a trial judge must make to warrant the govern-

ment’s use of conspirator statements against a defendant.

II,

DID THE TRIAL JUDGE DEPRIVE THE DEFENDANT

OF THE PROTECTIONS OF FED. R. EVID. 602 AND

801(d)(2)(E) AND OF THE SIXTH AMENDMENT

CONFRONTATION CLAUSE BY ADMITTING CON.

SPIRATOR STATEMENTS WITHOUT ANY PROOF

THAT THEY WERE BASED UPON PERSONAL

KNOWLEDGE AND IN THE FACE OF EVIDENCE

THAT THE DECLARANTS LACKED PERSONAL

KNOWLEDGE?

According to the government's evidence, only Ghassan,

not his father or any other conspirator, met with Stillman

for the purpose of transferring heroin and receiving money

from him. Yet, Rossi was permitted to testify to state-

ments made by the father, Ibraham, about events he did

not witness, and Agent Schmotzer was permitted to testify

to statements made about Stillman by codefendant Mce-

Fayden, who apparently lacked personal knowledge. These

statements supposedly corroborated the extrajudicial ut-

terances by Ghassan,

The Court of Appeals took a position that no other fed.

eral appellate court had yet taken: the personal knowledge

requirement of Federal Rule of Evidence 602 does not

apply to conspirator statements admitted under Fed. R.

Evid. 801(d)(2)(E) (App. 26-27). The Court of Appeals

violated not only the evidence rules but the Confrontation

Clause in this ground-breaking decision.

According to the Court of Appeals, the Advisory Com-

mittee Note to Rule 801 indicates that personal knowledge

was not intended to be required for admissions. The

language cited by the Court of Appeals is found in the

introductory paragraph to subdivision (d)(2) of Rule 801.

It makes no specific reference to the five classes of admis-

sions found in the rule. In fact, in discussing Rule

801(d)(2)(B), the Advisory Committee's Note goes on

to say that knowledge of the contents of a statement

‘‘would ordinarily be essential,”’ although this is not in-

evitable. When the Note is viewed as a whole, it appears

that the Advisory Committee was not intending to expand

the categories of admissions where doing so might admit

unreliable evidence. In its discussion of the conspirator

rule, 801(d)(2)(E), the Advisory Committee's Note states

that ‘‘the agency theory of conspiracy is at best a fiction

and ought not to serve as 2 basis for admissibility beyond

that already established.’ Neither this Court nor the

courts of appeals had ever regarded conspirator state-

ments as exempt from the personal knowledge rule before

the case. Thus, it is this case that expands the fiction.

The pernicious effects of the Court of Appeals’ decision

are readily apparent. .\ conspirator who would not be

permitted to come into court and testify because his tes-

timony would be based on what others said, not on personal

knowledge, could utter out-of-court statements and those

statements could then be introduced even though the con-

spirator-declarant is unavailable for cross-examination. In

other words, the conspirator who is present in court for

cross-examination and whose lack of personal knowledge

could be demonstrated to the jury would be barred from

testifying; yet the unavailable conspirator’s statements,

made without personal knowledge, would be admitted and

would be immune from serious challenge because of the

defendant's inability to cross-examine the declarant. That

is the present case. There is no evidence to suggest that

Ibraham or McFayden had personal knowledge. Yet their

statements were admitted against Stillman. One was a

fugitive and the other was a codefendant who did not tes-

tify. Neither declarant ’s statement could be cross-examined.

As a result, it appears that Ghassan's statements were

repeated by people involved with him. While there was

only one person, Ghassan, who claimed knowledge about

Stillman, these other statements, which almost surely were

based on what Ghassan said, appeared to corroborate

Ghassan. In fact, Ghassan’s statements were corroborat-

ing themselves. This, however, could never be demon-

strated to the jury because the trial judge refused to

require the government to show some basis for personal

knowledge before admitting the conspirator statements.

Stillman maintains that the only recognized exception

to the personal knowledge requirement at common law

was for personal, not vicarious, admissions. The rationale

for not requiring personal knowledge is clear: A party

can take the stand if he or she wishes and explain or deny

the statement attributed to him; if the party spoke without

knowledge, the party can explain this to the jury; and the

party offering the statement should not have to depend

upon his adversary to admit personal knowledge when

offering personal admissions. See E. Morgan, Basie Prob-

lems of Evidence 265-67 (1963).

Vicarious admissions are entirely different. As the Ad-

visory Committee's Note to Rule s01(d)(2)() states, the

conspiracy exception relies upon the legal fiction that one

conspirator'’s words may be used against another. As long

as the person who speaks has personal knowledge, and the

statements are during and in furtherance of a conspiracy,

the law of evidence has accepted such statements. Once

personal knowledge is removed, the value of the state-

ments declines, and the defendant against whom the state-

ments are used is in no position to explain how the state-

ments came about. It is the government who offers the

statements and it is the government who should have to

bear the same burden that the Court of Appeals properly

noted must be borne when statements are offered under

hearsay exceptions found in Federal Rules of Evidence

803 and 804: to show a basis for personal knowledge.

The Advisory Committee's Note to Federal Rule of

Evidence 806 begins by recognizing that ‘[tjhe declarant

of a hearsay statement which is admitted in evidence is in

effect a witness.’’ Rule 506 and the Committee's Note

accompanying it treat declarants who make vicarious admis-

sions and other hearsay declarants in an identical fashion

for purposes of impeachment. It should be obvious that

impeachment may be impossible if the government is

spared any burden of showing a basis for personal know]l-

edge on the part of a declarant. A defendant who does

not know how an unavailable declarant-conspirator came

to make a statement hardly is in a pesition to impeach

it. The thrust of Article VIII of the Federal Rules of

Evidence is to admit certain vicarious admissions as well

as other hearsay; to require that this evidence meet basic

requirements for admission, including personal knowledge ;

and to assure that there is a full opportunity for impeach-

ment of persons whose out-of-court statements make them

witnesses against a defendant. The holding of the Court

of Appeals completely deprives a defendant of the protec-

tion of the personal knowledge requirement.

In Dutton v. Evans, 400 U.S. 74, 87-89 (1970), this Court

examined the admissibility of conspirator statements under

the Confrontation Clause. One of the factors emphasized

in Dutton was the importance of the couspirator state-

ments to the government's case. In the instant case, these

statements were crucial, as noted above.

Also important to the Dutton Court was the fact that

the conspirator whose statement was introduced had per-

sonal knowledge of the events about which he spoke, 400

U.S. at 88. Personal knowledge was lacking in the in-

stant case.

Another factor in uttun was the incentive of the declar-

ant to misrepresent the truth. In this case the only

declarant with personal knowledge was Ghassan. He hada

strong incentive to misrepresent.

Ghassan had agreed to serve as a government informant

and to engage in undercover activity. His defense was

that he was acting in this governmental capacity when

dealing with the heroin that gave rise to this case. The

government maintained that Ghassan was acting on his

own. If the government was correct, then Ghassan had

every reason to feign that he was engaged in undercover

work. By doing so, he could have the government believe

that he was keeping his bargain. Ghassan knew Stillman

and Stillman had a 1977 conviction that is discussed in

connection with the next question presented. By meeting

Stillman from time to time, even though nothing illegal

occurred, Ghassan could appear to be working as an agent,

Stillman’s prior record would suggest that Ghassan was

attempting to do undercover work. Meanwhile, if Ghassan

wanted to divert funds from his conspirators to himself,

he could pretend that Stillman was involved in the traf-

ficking and inform his confederates that Stillman owed

money. Since no one other than Ghassan supposedly spoke

to Stillman about heroin, supposedly delivered heroin, or

claimed to have received ‘money from Stillman, Ghassan

could blame Stillman for any shortage of money. Thus,

(;shassan had a good reason to make it appear that Stillman

was involved.

Stillman maintains that under these circumstances it

violated the Confrontation Clause to admit statements by

other alleged conspirators without a showing that they

had personal knowledge. If Ghassan told them things about

Stillman, Ghassan had a reason to tell them things that

were untrue. Lacking personal knowledge, they had no

reason to question what Ghassan said. Their statements

added nothing but a false sense of corroboration to Ghas-

san’s statements.

Stillman asks no more than that this Court require under

the evidence rule and the Confrontation Clause that the

government show a basis for personal knowledge on the

part of a declarant. He does not assert that personal

knowledge must be proved beyond a reasonable doubt or

even by a preponderance of the evidence. Stillman main-

tains only that the government must offer evidence, which

a defendant can examine, sufficient to permit a jury to

conclude that a conspirator had knowledge to support his

Statements and was not simply repeatiny the statements

of others. Knowledge in some instances may be inferred.

But where no inference of knowledge is possible, conspira-

tor statements, like other out-of-court statements offered

for their truth, may not be admitted. Otherwise, the de-

fendant may be convicted on the basis of mere repetition of

statements made by a single person.

The Third Circuit opinion is a break with precedent and

with good sense. Stillman asks this Court to consider

whether conspirator statements made without personal

knowledge satisfy the Federal Rules of Evidence and the

Confrontation Clause.

Ill.

DID THE TRIAL JUDGE VIOLATE THE SIXTH

AMENDMENT CONFRONTATION CLAUSE AND FED.

R. EVID. 806 WHEN HE REFUSED TO PERMIT A DE.

FENDANT TO IMPEACH THE HEARSAY DECLAR-

ANT WHO PROVIDED THE MOST IMPORTANT EVI-

DENCE AGAINST HIM?

As noted above, the most important evidence against

Stillman was contained in the out-of-court statements

by alleged coconspirators whom Stillman never was

able to cross-examine. Once the trial judge admitted those

statements, Stillman’s only opportunity for confrontation

of the most important witness against him, Ghassan, whose

extrajudicial statements were the linchpin of the govern-

ment’s case, was to impeach Ghassan. Cross-examination

was impossible because of Ghassan’s reliance on the priv-

ilege against self-incrimination. Without an opportunity

to examine Ghassan, Stillman could only attack Ghassan’‘s

credibility with extrinsic evidence. Stillman filed with the

trial court a notice of his intention to impeach Ghassan

with evidence of prior convictions and with character wit-

nesses who would testify as to Ghassan’s bad reputation

for truthfulness. Federal Rule of Evidence 806 specifical-

ly permits a party to impeach a person whose conspirator

statements are used against him. This rule, Stillman

maintains, is constitutionally required. This Court has

recognized that impeachment of witnesses is part of a de-

fendant’s confrontation right. Davis v. Alaska, 415 U.S.

308 (1974). As a result of Ghassan’s refusal to testify

and the trial judge's decision to admit his extrajudicial

statements while barring impeachment, Stillman lost all

opportunity to confront his most important accuser.

It is true that the trial judge had reason to be con-

cerned about possible prejudice to Ghassan if the im-

peachment evidence were admitted. But this Court

recognized in Bruton v. United States, 391 U.S. 123 (1965),

that the government may not deny a defendant his right

to confront his accusers merely by arranging for a joint

trial. It was the government that offered Ghassan's out-

of-court statements against Stillman. And it was these

statements that were devastating evidence against him.

The effect of the trial judge’s rulings was to admit the

statements and to deny Stillman the only means of con-

frontation available.

The trial judge combined his ruling barring impeachment

of Ghassan with a decision to admit evidence that in 1977

Stillman had pleaded guilty to using a telephone call

to facilitate the purchase of heroin. None of the defen-

dants, agents, witnesses or evidence in the instant case

was involved in the 1977 case. Nevertheless, the judge

admitted this pursuant to the government's argument that

somehow the jury could use the prior conviction on the

issue of intent. As a result of these rulings, the jury

learned about a prior conviction of Stillman’s while Still-

man could not inform the jury about Ghassan’s prior

record and his character.

This Court has never examined the confrontation rights

a defendant may exercise against a nontestifying codefen-

dant whose statements are admitted under the conspirator

rule of evidence. If the trial judge’s ruling is permitted

to stand, the government can prevent a defendant from

confronting persons who make extrajudicial declarations

that are used against him by the simple expedient of charg-

ing these people in the same indictment with the defendant.

Stillman asks this Court to grant the writ to determine

whether it is permissible to deny a defendant, who has no

opportunity to cross-examine the conspirator-declarant

whose statements are admitted against him, the only

available form of impeachment.

IV.

DID THE TRIAL JUDGE DENY CONFRONTATION

RIGHTS WHEN HE PREVENTED IMPEACHMENT OF

A WITNESS WHO REPORTED HEARING CONSPIRA-

TOR STATEMENTS AND WHO PROVIDED THE MOST

IMPORTANT INDEPENDENT EVIDENCE AGAINST

THE DEFENDANT?

The trial judge refused to permit Stillman to question

Welkie about prior statements that he made to Agent

Schmotzer. One of these statements, contained in Schmot-

zer’s notes, Was that Ghassan, not Stillman, had been the

person who directed Welkie to hand the package of heroin

to an unidentified man in July 1980. In the view of the

Court of Appeals, this was the single most important piece

of evidence against Stillman aside from Ghassan’s state-

ments (App. 17-15). The trial judge based his ruling on the

erroneous proposition that Agent Schmotzer’s notes were

his statements, not those of Welkie, and therefore questions

based upon them could only be addressed to their author,

Schmotzer. Stillman actually was required by Fed. R.

Evid. 613 to ask Welkie about any statements to Schmotzer

and to give Welkie a chance to explain or deny them in

order to use the notes for impeachment. The trial judge's

ruling denied Stillman any chance to use the inconsistent

statement in an effort to have Welkie admit that his trial

testimony might be incorrect.

The exclusion of impeachment evidence directed at

Welkie is described in the separate opinion by Judge

Becker in the Court of Appeals:

Stillman mounted a considerable attack on Welkie’s

credibility. He attempted to establish that Welkie

had used more than two grams of heroin before and

during the meeting at the Hyatt [where Welkie said

he gave the package to the unidentified man}. He also

attempted to show that Welkie had given fatally incon-

sistent statements about that meeting, having as-

oy)

serted in his statement to Agent Schmotzer that it

had been Ghassan, not Stillman, who had directed that

the package be given to the unidentified man. Still-

man sought to attack Welkie’s credibility on other

grounds as well. The district court excluded much of

the proffered impeachment.

(App. 61-62) (footnote omitted). Having prohibited Still-

man from impeaching Ghassan, the conspirator-declarant,

the trial judge also drastically restricted cross-examination

and impeachment of Welkie, the witness who related Ghas-

san’s statements and who testified to the other most dam-

aging evidence against Stillman.

In the courts of appeals there is an increasing trend

toward recognition of a trial judge’s power to prohibit

full impeachment of government witnesses. See. 6.9.

United States v. Bulman, 667 F.2d 1374, 1381-82 (11th Cir.

1982), cert. denied, 102 S.C't. 2305 (1982); United States v.

Andrew, 666 F.2d 915, 924-25 (Sth Cir. 1982); United

States v. Civella, 666 F.2d 1122, 1129 (8th Cir. 1981). At

some point impeachment evidence may be cumulative. But

as Judge Becker noted in his separate opinion, Stillman

was denied at every turn opportunities to impeach Welkie,

even though the government relied heavily upon him, and

the Court of Appeals found his testimony to be the

strongest evidence against Stillman independent of Ghas-

san’s statements.

Stillman asks this Court to grant certiorari to decide

whether the limitations on impeachment are consistent with

a defendant's confrontation rights and whether the Court

of Appeals was correct in referring to the impeachment at-

tempts by Stillman as ‘‘merely cumulative."* Stillman

argues that the right to cross-examine a witness about

prior statements, drug use and other matters that might

cast doubt upon his credibility is at the heart of the con-

frontation right.

* Judge Becker's opinion contains a footnote that sets forth

the other impeachment efforts that were frustrated.

CONCLUSION

Marshall Stillman understands that this Court does not

grant certiorari to correct all errors committed by lower

courts. He asks this Court to grant review in this case

not simply because he was wrongly convicted, but more im-

portantly because the treatment of conspirator statements

and declarants in this case represents an expansion of ad-

missibility and a contraction of confrontation rights of

frightening proportions.

The Court of Appeals noted that Stillman raised many

issues on direct appeal. All but one of those issues in-

volved four simple points that seemed unquestionably true

until the Court of Appeals’ decision in this case:

1. A trial judge should have to make a finding that

there is sufficient evidence of conspiracy prior to per-

mitting a jury to rely on conspirator’s statements. This

tinding need not be beyond a reasonable doubt, nor

need it be by clear and convincing evidence. The same

preponderance of evidence standard used by this Court

in Lego v. Twomey, 404 U.S. 477 (1972), will suffice.

The important thing is that the judge actually assess

the evidence and make a finding.

2. The judge must insist that the government show

the same basis for personal knowledge on the part of

a conspirator whose statements are important evidence

against a defendant that it would have to show if the

conspirator were called to testify at trial.

3. The defendant should be given a full opportunity

to confront and to impeach the statements of a con-

spirator who is unavailable for cross-examination, and

this is especially important when the government has

offered evidence of other crimes by the defendant him-

self,

4. The defendant should be given a full opportunity

to confront and to impeach witnesses who claim to

have witnessed key trial events and who report the

conspirator statements relied upon by the govern-

ment.

The effect of the Court of Appeals’ decision is to re-

move the requirement that the judge make a finding, to

permit conspirator statements to be introduced without

any showing that declarant had personal knowledge, to

permit hearsay declarants to go unimpeached if the declar-

ants also happen to be codefendants, and to recognize

broad power of the trial court to restrict impeachment of

the witnesses who come to court.

The Court of Appeals did what this Court refused to do

in Krulewitch, supra. \f its decision stands, the defendant

in a conspiracy case is no longer in ‘‘an uneasy seat’’; the

seat is now unfair. Marshall Stillman respectfully asks

that this Court look again at the use of conspirator state-

ments and do what it did in Krulewitch: reverse a court

of appeals that insists on stretching a rule of evidence to

the breaking point and that ignores the basic guarantee

of the Confrontation Clause of the Sixth Amendment.

For all the foregoing reasons, petitioner respectfully

requests this Court to grant his petition for writ of

certiorari.

Respectfully submitted,

SHELLoW, SHELLOW & GLyNy, S.C.

James M. SHELLOw

James A. WALRATH

Attorneys for MarsuHaLu STILLMAN,

Petitioner

STEPHEN A. SaLTzBuRG

Professor of Law

University of Virginia Law School

Charlottesville, Virginia 22901

Of Counsel

Dated: August 26, 1983

APPENDIX

UNITED STATES COURT OF APPEALS

For the Third Circuit

Nos. 81-1745, 81-1746, 31-1565, 51-2064

UNITED STATES OF AMERICA

GHASSAN L. AMMAR, NELL ROGER McF AYDEN,

JUDITH AMMAR, [BRAHAM AMMAR,

ABEDEEN AMMAR, NAIM DAHABI,

CHARLES ROSSI, MICHAEL DUGAN,

MARSHALL STILLMAN

GHASSAN L, AMMAR, NEIL ROGER McFAYDEN,

JUDITH AMMAR and MARSHALL STILLMAN,

Appellanis

AppeaL From Tue Unirep Srates District Court

For THE WesTERN District or PENNSYLVANIA

(D. C. Crim, No. 50-133)

Argued January 10, 1988

Before: Wets, SLoviter and Becker, Circuit Judges

(Opinion filed June 30, 1983)

Paul J. Brysh (Argued)

Assistant U. 8S. Attorney

J. Alan Johnson

U. S. Attorney

John J. Mead

Legal Intern

633 U.S.P.O. & Courthouse

Pittsburgh, PA 15219

Attorneys for Umited States

App. 2

Philip B. Friedman (Argued)

Leonard G. Ambrose, III

Michelle M. Hawk

Ambrose & Friedman

319 West Eighth Street

Erie, PA 16502

Attorneys for Ghassan Ammar

Andrew J, Conner (Argued)

Dunn & Conner

1111 G, Daniel Baldwin Building

Erie, PA 16501

Attorneys for Judith Ammar

James M, Shellow (Argued)

Stephen M. Glynn

Shellow, Shellow & Glynn

222 East Mason Street

Milwaukee, WI 53202

Of Counsel:

Prof, Stephen A. Saltzburg

University of Virginia

School of Law

Charlottesville, VA 22901

Attorneys for Marshall Stillman

Michael M. Palmisano

5000 Peach Street

Erie, PA 16509

Attorney for New Roger McFayden

App. 3

OPINION OF THE COURT

Suoviter, Circuit Judge.

These are consolidated appeals from judgments of con-

viction arising out of a conspiracy for the importation and

distribution of heroin. After full consideration of the

numerous arguments raised by appellants, we affirm the

judgments below in all respects.

FACTS

The indictment named nine defendants and two un-

indicted coconspirators. ‘Ihree of the named defendants,

Ibraham Ammar, Abedeen Ammar, and Naim Dahabi, were

fugitives at the time of trial; two other defendants, Charles

Rossi and Michael Dugan, pleaded guilty and testified for

the government; the remaining four defendants, Ghassan

Ammar, Judith Ammar, Marshal! Stillman, and Roger

McFayden, stood trial, were convicted by the jury and

now appeal. The unindicted coconspirators were John

Welkie and Gilbert Bunner, both of whom testified at the

trial.

The conspiracy spanned the period from January 1980

to October 1980. It involved the importation of heroin

from Lebanon through Toronto and New York, and was

centered on Ghassan Ammar, who lived with his wife

Judith in Erie, Pennsylvania, where they had a leather

importing business. The Lebanese sources of the heroin

were Ghassan’s father, Ibraham; his uncle, Abedeen; and

Naim Dahabi.

Briefly summarized, the evidence at trial, viewed in the

light most favorable to the government, showed the fol-

App. 4

lowing: In January 1980, at a meeting between Ghassan,

Judith and Welkie, Ghassan told Welkie that his father

and uncle could supply heroin for importation into the

United States. In May 19580, Ghassan and Judith, to-

gether with Dugan and Welkie, drove from Erie to the

Toronto airport where they met Ghassan’s uncle, Abedeen

Ammar, with whom they returned to Lrie transporting

heroin in hollowed-out chair legs in Abedeen's luggage.

In early June 1980, Judith, Ghassan, and their infant son,

together with Dugan and Rossi, flew from New York

abroad to Amsterdam, where Dugan and Rossi remained

while the Ammars flew on to Beirut. Shortly thereafter,

Ghassan and his father, [braham Ammar, rejoined Dugan

and Rossi (Judith stayed behind in Beirut), and the four

flew to New York with heroin again concealed in hollowed-

out chair legs. From New York, the four men drove to

Rossi’s home in Chester, Pennsylvania. Ghassan, |bra-

ham, and Rossi flew on to Detroit, where Ghassan met with

Marshall Stillman, and then returned to Erie. During

the next week, they made two additional trips to Detroit,

where Ghassan again met with Stillman and transferred

heroin to him. In early July 1980, Ghassan flew to Beirut,

where he rejoined Judith; the two returned to New York on

July 4, carrying heroin concealed on Judith’s person and

in their baby’s diaper, and were met by Rossi, Welkie,

and Ibraham. In mid-July, at Ghassan’s suggestion, Rossi

flew to Beirut, where he was met by Ibraham and Abedeen,

and acquired additional heroin from them, Later in July,

Ghassan, Welkie and Bunner travelled to Detroit where

Ghassan met with Stillman and sold him heroin. After

receiving a phone call from Judith, the three returned

to Erie, and together with Judith drove to Toronto, where

they met Naim Dahabi, who had arrived in Canada with

heroin concealed in hollowed-out chair legs. They then

drove to Detroit, where Ghassan, Dahabi and Welkie met

App. 5

with Stillman. On this occasion, Welkie delivered some

heroin to a friend of Stillman's pursuant to Stillman’s

instructions.

During this same period, Ghassan and MecFayden were

involved in sales of heroin to McFayden’s friend ‘‘ Frank,”’

who was in fact Francis Schmotzer, an undercover agent

of the Drug Enforcement Administration. Ghassan and

McFayden sold heroin to Schmotzer twice in May 1980.

In late June, after their return from Detroit, Ghassan

and Rossi met McFayden and Schmotzer and discussed ad-

ditional heroin sales. On July 31, Ghassan, McFayden,

Welkie and Bunner arranged a third sale to Schmotzer.

McFayden and Bunner were arrested immediately. Welkie

fled by car, but surrendered several days later in Philadel-

phia. Ghassan, who was not present at the sale, surrend-

ered August 1. On August 29, a four count indictment

was returned against Ghassan, McFayden and Welkie, also

naming Bunner as an unindicted coconspirator.

Meanwhile, in early August, Rossi returned from

Lebanon with heroin, and was met by Dugan. Rossi and

Dugan were arrested on August 12 after attempting to

arrange the sale of a portion of the heroin to a state un-

dercover agent in order to raise Welkie’s bail. Rossi was

released, but continued to attempt to sell the heroin, and

was arrested again on October 2. Welkie also was re-

leased after agreeing to cooperate with the government,

and on September 19, at the instigation of the govern-

ment, had a conversation with Judith who asked him to

sell some heroin to raise bail for Ghassan’s release. Judith

was subsequently arrested. Finally, Stillman was arrested

in Detroit on October 15.

On October 10, a superseding eight-count indictment

was returned in the Western District of Pennsylvania.

Count I charged the nine defendants (Ghassan, Judith,

Ibraham, Abedeen, McFayden, Dahabi, Rossi, Dugan, and

A pp. 6

Stillman) and the unindicted coconspirators (Welkie and

Bunner) with conspiracy to distribute and possess with

intent to distribute heroin, in violation of 21 U.S.C. $841-

(a)(1). Count II charged all defendants with conspiracy

to import heroin into the United States, in violation of 21

U.S.C. §$§952(a) and 960(a)(1). Counts ILI, IV and V

charged Ghassan and McFayden with three substantive

violations of 21 U.S.C. s841(a)(1) and 18 U.S.C. $2 based

on their sales of heroin to Schmotzer on May 2, May 20,

and July 31. Count VI charged Rossi and Dugan with a

substantive violation of 21 U.S.C. $952(a) based on their

importation of heroin in June 1980 from Amsterdam.

Count VII charged Abedeen, Ghassan, Judith, and Dugan

with a substantive violation of 21 U.S.C. $952(a) based

on their importation of heroin from Toronto in May 1980.

Count VIII charged Ghassan, Judith and Dahabi with a

substantive violation of 21 U.S.C. $952(a) based on their

importation of heroin from Toronto in July 1980.

Rossi and Dugan pleaded guilty to Count I and testified

on behalf of the government. Welkie and Bunner, the

unindicted coconspirators, pleaded guilty to a conspiracy

charge in a related indictment, and also testified for the

government. Of the four defendants who were tried,

Ghassan, Judith, McFayden and Stillman, only Judith

testified. All were found guilty as te each count in which

they were named. Ghassan received seven concurrent

fifteen-year sentences, a total fine of $30,000, and con-

current three-year special parole terms on all but Counts

land Ll. Judith received four concurrent five-year terms.

McFayden received five concurrent eight-year sentences.

Stillman was sentenced to concurrent twelve-year terms

on the two conspiracy counts, and was fined $10,000.

Appellants in their briefs have made some fifty sepa-

rate claims of trial error, which are set out in the Appen-

dix to this opinion. We have considered each claim,

App.7

many of which we find to be patently without substance,

and have determined that none warrants reversal of the

judgments .elow. We examine separately only those is-

sues which we believe merit further discussion.’

IL.

ADMISSIBILITY OF COCONSPIRATOR

STATEMENTS

One of the principal contentions of error concerns the

admission of the testimony of out-of-court statements made

by members of the conspiracy. The court permitted Rossi,

Welkie, and other witnesses to testify about statements

made by the other conspirators on the theory that these

were coconspirater statements aduissible under Fed. R.

Evid, 801(d)(2)(E).-

A coconspirator statement may be admitted under Fed.

R. Evid. 801(d)(2)(E) if it meets three conditions: (1)

there must be independent evidence establishing the ex-

istence of the conspiracy and connecting the declarant and

defendant to it; (2) the statement must have been made

in furtherance of the conspiracy; and (3) it must have

been made during the course of the conspiracy. See, €.g.,

United States v. Perez. 658 F.2d 654, 658 (9th Cir. 1981).

Because appellants claim these requirements were not met

as to at least some statements, we consider each require-

ment in turn.

' Appellant McFayden has not filed a brief in this court, but

instead has informed us that he relies on the arguments presented

hy his co-appellants. Our rejection of those arguments thus applies

to MeFayden as well

-Fed RK Evid BOL dy 2)(E) provides

(d) Statements which are not hearsay. .\ statement is not

hearsay 1!—

(2) Admission by party-opponent. The statement 1s offered

against a party and ts (E) a statement by a coconspirator of

a party during the course and in furtherance of the conspiracy.

App. 8

INDEPENDENT EVIDENCE OF CONSPIRACY

1. Necessity of an in limine hearing.

In United States v. Continental Group, Inc., 603 F.2d

#44, $07 (Sd Cir. 1979), cert. denied, 444 U.S. 1032 (1980),

we held that as a prerequisite for the submission of co-

conspirator statements to the jury, the court must de-

termine that the government has ‘‘established the existence

of the alleged conspiracy and the connection of each defen-

dant with it by a clear preponderance of the evidence in-

dependent of the hearsay declarations.’ This deter-

* The need for independent evidence was enunciated in Glasser v.

United States, 315 U.S. 60, 74-75 (1942), where the Court stated

that coconspirator declarations “are admissible over the objection

of an alleged conspirator, who was not present when they were

made. only if there is proof aliunde that he is connected with the

conspiracy” because otherwise “hearsay would lift itself by its own

bootstraps to the level of competent evidence.” Some courts have

questioned whether Glasser survives the adoption of Fed. R. Evid.

104(a). which provides that in making threshold determinations the

trial court is not bound by the rules of evidence, except those

with regard to privileges. See United States v. Martorano, 561

F.2d 405, 408 (1st Cir 1977). cert. denied, 433 U.S. 922 (1978).

The Sixth Circuit has held that the proviso of Rule 104(a) “modifies

prior law to the contrary”, and that “hearsay statements themselves

may be considered by the judge in deciding the preliminary ques-

tion of admissibility.” United States v. Vinson, 606 F.2d 149. 153

(6th Cir. 1979), cert. denied, 444 U.S. 1074 (1980). Most circuits.

however, including this one, have continued to take the position

that the preliminary determinations as to adnussibility must be made

on the hasis of independent evidence. Government of the Virgin

Islands v. Dowling. 633 F.2d 660, 663 ( 3rd Cir). cert. demed, 449

US 960 (1980); United States \ Trowery, 542 F.2d 623, 627

(3d Cir. 1976) (per curiam), cert. denied, 429 US. 1104 (1977) .

United States v. James, 590 F.2d 575, 581 (Sth Cir ) (in hance ).

cert. denied, 442 U.S. 917 (1979). See also 1 Weinstein & Berger.

MWeinstein's Eridence © 104{08}.

App. 9

mination is to be made by the court before the coconspirator

statements are submitted to the jury. See United States

v. James, 390 F.2d 575, 581 (Sth Cir.) (in bane), cert,

denied, 442 U.S. 917 (1979).

Appellants contend that before allowing the introduction

of any coconspirator statement the district court should

have held a preliminary hearing at which the determination

referred to above should have been made.’ In United

States v. James, 390 F.2d at 581-82, on which they rely,

the Fifth Circuit expressed its preference for requiring

the government to establish the existence of the conspiracy

and each defendant's participation in it by independent

evidence before admitting any coconspirator declarations.

Even that court has clarified that while preferable, this is

not a mandatory procedure. See United States v. Monte-

mayor, 703 F.2d 109, 116-17 (5th Cir. 1983).

Our approach has not been dissimilar, but we have

emphasized that ‘the control of the order of proof at trial

is a matter committed to the discretion of the trial judge.”’

United States v. Continental Group, Inc., 603 F.2d at

456: see United States v. American Radiator & Standard

Sanitary Corp., 433 F.2d 174, 195 (3d Cir. 1970), cert.

denied, 401 U.S. 948 (1971); see also United States v.

‘Fed. R. Evid. 104 provides in relevant part:

(a) Questions of admissibility generally. Preliminary ques-

tions concerning the qualification of a person to be a witness,

the existence of a privilege. or the admissibility of evidence

shall be determined by the court. subject to the provisions of

subdivision (b). In making its determination it 1s not bound

by the rules of evidence except those with respect to privileges

c) Hearing of jury. Hearings on the admissibility of

confessions shall in all cases be conducted out of the hearing of

the jury. Hearings on other preliminary matters shall be so

conducted when the interests of justice require or, when an

accused is a witness. if he so requests.

App. 10

Perez, 658 F.2d at 655 n.2 (‘Unlike the Fifth (ireuit,

this court [the Ninth Circuit) has declined to express a

‘preference’ for pretrial determination of admissibility of

the coconspirator's statements’'). In Continental Group.

the government had been allowed to introduce coconspira-

tor statements without a prior showing of a conspiracy

based on independent evidence, subject to the requirement

that the government make such a showing by the close of

its case. We held that such a procedure, while it should

be ‘‘carefully considered and sparingly utilized,’’ was not

an abuse of discretion in a complex conspiracy case involv-

ing multiple defendants and a ‘large amount of interre-

lated testimony.** 603 F.2d at 457,

In this case, the district court denied appellants’ motion

for a pre-trial hearing on the adnussibility of coconspira-

tor statements on the ground that it would involve ‘‘a

mini-trial’’, but stated,

that at the request of the defendant at any time prior

to testimony by a co-conspirator, the court will de-

termine whether there is or is not sufficient thresh-

old evidence of a conspiracy of which defendant Was

a member or what specitically must still be proved

and the government, of course, will be required to

submit such further evidence or else suffer the pos-

sibility of a mistrial.

The court is of the opinion that Rule 104(b) of

the Federal Rules of Evidence does not demand more.

We cannot say that in the circumstances of this case the

district court erred or that its refusal to hold a pre-trial

hearing under Fed. R. Evid. 104 was an abuse of dis-

cretion.”

‘The preliminary question of the adnussibility of coconspirator

statements under Fed. RK. Evid. 801(d)(2)(E) is to be decided

under Rule 104(a). rather than under Rule 104; b) to which the

court referred Ser | Weinstein & Berger. Heimstein's Evidence

* 104/05}. at 104-40: United States \ James. 590 F.2d at 579.

App. 11

2. Adequacy of the Trial Court's Findings.

Appellants claim that the court failed to make the de-

termination of a conspiracy in which they participated

before submitting the coconspirator statements to the jury.

However, in the course of various rulings during the

trial, the trial judge stated that he had made such a

determination.” In addition, at the charging conference

the judge stated that he had made ‘tthe determination

that there was threshold evidence of the conspiracy .. .

rather early in the case, the second or third day.’* Tr.

4712. In light of the trial judge's statements, we reject

appellants’ contention that no such determination was

made. Moreover, we have held that even in the absence

of explicit findings by the trial court, the necessary

threshold determination is implicit in the court's deci-

sion to send the case to the jury. (iovernment of the Vir-

gins Islands v. Dowling, 685 > 2d at 665; United States v.

Continental Group, Inc., 603 F.2d at 460; see also Unit-

ed States v. Lutz, 621 F.2d 940, 947 (9th Cir.), cert. de-

nied. 449 U.S. 859 (1980); United States v. Green, 523

F.2d 229, 233 n.4 (2d Cir. 1975). cert. denied, 423 U.S.

1074 (1976).

Appellants claim that the court used the wrong

standard of proof in making the required threshold de-

termination. We, along with most other circuits, require

that ‘‘the prosecution must lay a foundation for the ad-

mmission of coconspirator hearsay by establishing the ex-

istence of a conspiracy including the defendant by ‘a fair

preponderance of independent evidence.” Inited States

“ For example, early in the trial. the court stated during a side-

bar conference. “I have determined from the testimony admitted

so far that there is a threshold evidence of a conspiracy.” Tr. 432i.

In context, we are satisfied that the court's reference to “threshold

evidence of a conspiracy” encompassed defendants’ participation.

App. 12

v. Trotter, 529 F.2d 806, 511 (3d Cir. 1976); see Govern-

ment of the Virgin Islands v. Dowling, 633 F.2d at 665.

Accord United States v. Suntiagy, 582 F.2d 1129, 1133-36

(7th Cir. 1978); United States v. Petrozziello, 548 F.2d 20,

23 (Ist Cir. 1977). But see United States v. James, 590

F.2d at 580-8] (substantial evidence standard); Lnited

States v. Dixon. 562 F.2d 1138, 1141 (9th Cir. 1977), cert.

denied, 435 U.S. 927 (1975) (prima facie standard). See

generally 1 Weinstein & Berger, Weimsteim’s Evidence

district court used the lesser ‘‘prima facie’’ standard.

It would have been error had the district court reduced

the burden on the government in this manner. See United

States v. Trowery, 542 F.2d at 627; United States v.

Trotter, 529 F.2d at 812. However, we believe the trial

court was aware of and applied the correct standard, not-

withstanding the references to ‘‘prima facie’ case which

the court made on two occasions in this long trial.

During a side-bar conference early in the trial the judge

stated:

The Court: 1 found there was sufficient threshold

evidence of a conspiracy. ut, nevertheless, that does

not permit [sic] other attacks on credibility or showing

the conspiracy never existed or anything else. The

mere fact 1 make a determination means a prima facie

case.

[Stillman’s Attorney;: Has the Court made a de-

termination as a prima facie case without having a

104 hearing?

The Court: I find there is.

Tr. 432g-h (emphasis added).

The only other reference to which appellants have

directed our attention appears in the charging confer-

ence during a discussion as to the difference between

the ‘‘preponderance’’ standard and the ‘‘beyond a reason-

App. 13

able doubt’’ standard, which was relevant to the court’s

proposal to submit the threshold determination to the

jury. The court stated:

As I read this, that preponderance of the evidence

is for my thinking when I frst make the determination

that there was threshold evidence of the conspiracy

which 1 made rather early in the case, the second or

third day. I think I told you people that I had con-

sidered it and on the basis of things produced up

to then, | thought there was prona facie evidence of a

conspiracy or threshold evidence of a conspiracy $80 as

to justify the introduction.

I think that is what that has to do with it. But

then to go on and say whether an individual defen-

dant is part of the conspiracy is something the jury

has to find beyond a reasonable doubt.

Tr. 4712-18 (emphasis added).

These two references to a ‘prima facie’’ case, though

troubling, do not persuade us that the district court adopted

an improper standard. The first reference Was made

in a context unrelated to the issue of standard of proof

and seems to us a slender reed upon which to base a

claim of reversible error. ‘The second reference, while

imprecise, is insufiicient to support the conclusion that

the district court employed the wrong standard. When

read in full context, it demonstrates that the court under-

stood that it had to find evidence of a conspiracy by the

‘‘preponderance’’ standard. ‘The references to the ‘‘pre-

ponderance’’ standard by both the court and counsel dur-

ing this colloquy reinforce our view.

We are not prepared to seize on one or two isolated

phrases to conclude that the court misunderstood the

standard that it was to apply. .\ppellants’ present empha-

sis on the court's passing remarks seems to us an at-

tempt to invest them with greater significance than they

App. 1+

merit or than they were understood to have at the time.

Significantly, appellants’ attorneys registered neither

surprise nor objection to either statement. They did not

seek clarification from the court; indeed, Stillman’s at-

torney repeated the phrase ‘‘prima facie case’’ in his re-

sponse to the first statement. In U'nited States v.

Pappas, 611 F.2d 399 (1st Cir. 1979), the First Circuit

considered a similar claim of error in a case where the

district court had clearly articulated a ‘prima facie"’

standard despite the circuit's adherence to a ‘* preponder-

ance’’ standard. The court held that since counsel had

failed to object to the judge's ruling at trial, it could re-

view only for plain error. After noting that ‘‘there was

more than sufficient evidence to justify a ruling under

the proper .. . standard,’’ the court concluded that the

failure to apply the correct standard did not rise to the

level of plain error, stating that ‘‘it is possible—indeed

in the circumstances it seems likely—that his articula-

tion of an incorrect standard was a slip of the tongue

which would have been quickly rectified had the error

been brought to his attention."* Jd. at 405. Even were the

trial court in this case to have employed the wrong

standard we also would be inclined to view it as harmless

error, since we are persuaded that the evidence of con-

spiracy and each defendant's participation was sufficient

to satisfy the ‘‘preponderance’’ standard,

Appellants also claim that it was error to instruct the

jury that only after it was satisfied by independent evi-

dence of a defendant's membership in the conspiracy

beyond a reasonable doubt could it consider the out-

of-court statements of coconspirators. Appellants contend

that by giving this charge, the court improperly delegated

its responsibility for making the necessary threshold de-

termination to the jury, and so confused the jury as to

render its verdict meaningless.

App. 15

As we stated above, the district court made the threshold

determination required by Rule $01(d)(2)(E) before al-

lowing the coconspirator statements to go to the jury.

Since this determination is for the court, it Was un-

necessary and inappropriate to instruct the jury that it

could only consider the coconspirator declarations if it

too determined, based on evidence aliunde, that a given

defendant was a member of the conspiracy. Once the

coconspirator statements are admitted they should go

‘to the jury without special instruction.”’ Inited States

v. Trowery, 542 F.2d at 627; United States v. Bey, 437

F.2d 188 (3d Cir. 1977); sce alse I’nited States v. James,

590 F.2d at 577-80.

However. while the trial court’. instruction was su-

perfiluous, we do not believe that it caused appellants any

prejudice. In United States v. Continental Group, Inc.,

603 F.2d at 459, we rejected a challenge to an almost iden-

tical charge, stating:

No court has held, however, that an instruction

that gives the jury an opportunity to second-guess

the court’s decision to admit coconspirator declara-

tions, otherwise inadmissible as hearsay, is revers-

ible error prejudicing the defendant. To the contrary,

it has been generally held that, so long as the court

fulfills its responsibility to make the initial determina-

tion, such a charge only provides a windfall to the

defendant.

Furthermore, defendants did not object to this portion of

the charge; at the charging conference Stillman’s attor-

ney conceded that the instruction was more favorable to

? The trial court was. of course. correct that the jury must find

each defendant's membership in the conspiracy beyond a reason-

able doubt, but it may do so based on all of the evidence. including

coconspirator statements, once that evidence has been properly ad-

mitted by the court.

App. 16

defendants than they were entitled. Tr. 4710. At trial it

was the government which objected to the instruction

now challenged by appellants. Tr. March 4, 1981 (charge

of court), at 54-55. We find that the error in instructing

the jury to make a supertluous finding was not prejudicial.

In summary, We are satistied that the district court

understood its obligation to make a finding based on evi-

dence aliunde of the existence of a conspiracy of which

each defendant was a member before allowing the jury

to consider any coconspirator declarations against that

defendant. It would, of course, have been preferable for

the court to have more clearly articulated on the record

its determinations and the bases for them, but we have

never made that an absolute requirement. United States

v. Continental Group, Inc., 603 F.2d at 457, 460. It is

also true that the court was not always as precise or as

clear as it might have been. But this was a complex trial,

with a record running to several thousand pages. Having

reviewed the record as a whole, we are not prepared to

conclude that the occasional confusion evidenced in the

record was such as to constitute reversible error.

3. Sufficiency of the Evidence Aliunde,

We must still review the evidence to determine if the

district court had ‘‘reasonable grounds"’ to make its find-

ing. United States v. Continental Group, 603 F.2d at

460; United States v. Bey, 437 F.2d at 196. We do not

understand appellants Ghassan, Judith, and MceFayden

to seriously challenge the sufficiency of the evidence

aliunde to support a finding of their participation in the

conspiracy; in any event, we are satisfied that it was

more than sufficient to do so. Appellant Stillman, how-

ever, does vigorously contest the finding of his participa-

tion in the conspiracy. The evidence aliunde as to him is

App. 17

substantially less, but we conclude that it was neverthe-

less sufficient to support the court's finding.

The threshold evidence offered by the government

need not be overwhelming. The preponderance standard

simply requires the prosecution to present sufficient

proof leading the trial judge to find **that the existence of

the contested fact is more probable than its nonexistence.”

United States v. Trotter, 529 F.2d at 812 n8. Further-

more, in reviewing the district court's determination of

proof of a defendant's participation in a conspiracy by a

preponderance of the evidence aliumde, the evidence ‘‘must

be considered in the light most favorable to the govern-

ment.’ United States v. Provenzano, 620 F.2d 985, 999

(3d Cir. 1980).

Both Stillman and the government are in agreement

that the strongest independent evidence against him

was Welkie’s testimony that during the July meeting

with Stillman in Detroit, Ghassan told Welkie to get a

package from their hotel room which Welkie knew to

contain heroin, and that when he returned with the

package Stillman told him to deliver it to an unidentified

man whom Welkie had previously seen with Stillman

and whom Welkie characterized as Stillman’s friend.

Stillman contends that this was insufficient to permit

the trial court to make the threshold determination of

Stillman’s participation in the conspiracy. He claims that

even this testimony could not be properly relied on be-

cause Welkie’s description of the unidentified man as

Stillman’s friend was not shown to be based on his per-

sonal knowledge. However, the ineulpatory aspect of

Welkie’s testimony lies not in the precise relationship

between Stillman and the unidentified man, but rather

in the fact that Stillman directed Welkie to deliver a

package which Welkie knew to coutain heroin to. the

App. 18

man. <As to that, Welkie’s testimony makes clear that he

was speaking from personal observation.

We find similarly unpersuasive Stillman's contention

that Welkie’s testimony must be discounted because

the trial court improperly limited his impeachment of

Welkie and generally failed to consider Welkie’s credi-

bility in making its ‘‘preponderance”’ finding. While Still-

man’s cross-examination of Welkie was limited in some

respects, there was ample cross-examination as to the two

principal matters Stillman relies on as impeaching, ie.

Welkie’s prior inconsistent statements to government of-

ficials and to the grand jury and his use of drugs. Since

these matters were placed in evidence, we believe that any

additional cross-examination by Stillman would have been

merely cumulative. We find no support for Stillman’s

suggestion that the trial court failed to consider Welkie’s

credibility in making its determination based on a pre-

ponderance of the evidence. We will not assume that the

court ignored a portion of the evidence before it simply

because its ultimate determination was unfavorable to ap-

pellant.

In addition to Welkie’s testimony as to the delivery of

the package there was acditional independent evidence,

albeit largely circumstantial, of Stillman’s participation

in the conspiracy. This evidence included testimony of

the repeated meetings between Stillman and various mem-

bers of the conspiracy coinciding with the heroin importa-

tions, Rossi's testimony that on one of the trips to Detroit

for a meeting with Stillman he saw heroin in the trunk

of Ghassan‘s car, and Welkie’s testimony that on another

trip to Detroit, Ghassan obtained some heroin from Welkie,

then met with Stillman, and was shortly thereafter seen

by Welkie with between $30,000 and $35,000 in cash in his

hotel room. Mere association with those who have con-

spired cannot alone support a conviction for conspiracy.

App. 1!

United States v. Torres, 519 F.2d 723, 725-26 (2d Cir),

cert, denied, 423 U.S. 1019 (1975). On the other hand,

the timing and circumstances of a meeting or series of

meetings may be sufficiently suspicious to permit a reason-

able inference of complicity in the criminal enterprise.

See United States v. Gonzalez, (00 F.2d 196, 2038 (Sth Cir.

1983); United States v. Baldarrama, 566 F.2d 560, 560

(3th Cir.), cert. denied, 439 U.S. S44 (1978); United States

y. Torres, 519 F.2d at 72. Moreover, the issue before us is

not whether the evidence alimnde was sufficient to support

a judgment of conviction beyond a reasonable doubt, but

rather whether the government has satisfied the far lesser

burden to make a threshold showing of conspiracy by a

preponderance of the evidence.

The only independent exculpatory evidence to which

Stillman directs our attention is his impeachment of Welkie.

In United States v. Provenzany, supra, appellant similarly

argued that the only evidence aliunde against him came

from ‘‘a biased liar." We rejected that contention on the

ground that, on appellate review, the Witness’s statements

‘smust be accepted as true for the purpose of determining

the sufficiency of evidence.’’ 620 F.2d at 999. We con-

cluded that ‘‘{a|Ithough the evidence is not overwhelming,

and while it comes from only one witness whose veracity

was certainly open to question, it was sufficient to establish

a conspiracy and to tie [appellant| to that conspiracy.”’

Id. at 1000. In this case, we have not only Welkie's testi-

mony, but substantial circumstantial evidence based on the

testimony of Rossi and others. We therefore conclude

that the district court could reasonably have found Still-

man’s participation in the conspiracy by a preponderance

of the evidence aliuade,

App. 20

IN FURTHERANCE OF VUE CONSPIRACY

The second requirement for the admission ot out-of-

court statements by cocouspirators is that they be made

in furtherance of the conspiracy. Appellants claim that

the district court failed to observe this requirement as to

a number of statements.

The most sweeping challenge ou this ground is Still-

man’s contention that virtually all of the out-of-court dec-

larations attributed to Ghassan were inadmissible as CO-

conspirator statements because Ghassan was acting as a

government informant when he made the statements, and

hence they were not in furtherance of the conspiracy. It

is undisputed that Ghassan, both prior to and during the

period of the conspiracy, had acted as a confidential in-

formant for both the DEA and Pennsylvania authorities.

In fact, the basis of Ghassan's defense was that he had

been acting as a government agent when he engaged in the

actions charged in the indictment. The government con-

tended that as to the events charged in the indictment,

Ghassan was acting on his own. ‘lhe trial court was aware

of Ghassan’s theory of defense at the inception of the

trial.’ Thus, when it admitted Ghassan's statements, it

“Stillman suggests that if the court had held an in dimine hearing,

he would have had the opportunity to question Ghassan as to his

status. There is no evidence that Ghassan would have chosen to

testify at such a hearing, and he could not have been compelled to

do so. We reject Stillman’s suggestion that it would have been ap-

propriate to grant Ghassan judicial use immunity under Govern-

ment of the Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir. 1980).

The exculpatory nature of Ghassan's would-be testimony is at best

speculative, its necessity is questionable, and, in view of Ghassan’s

central role in the conspiracy, the government's interest in not

having him granted immunity is considerable. See id. at 972.

App. 21

implicitly rejected Stillman’s claim that Ghassan's state-

ments were not in furtherance of the conspiracy.” The

jury reached a similar conclusion under the higher beyond

a reasonable doubt standard since its verdict reflected its

rejection of Ghassan’s informant defense.”

Stillman makes a similar challenge to the admission

of a taped telephone call which Rossi placed to Ibraham

at the instigation of the government shortly after Rossi's

initial August 12 arrest. Its purpose Was apparently to

lure Ibraham back to the United States from Beirut.

Stillman argues that since Rossi was concededly acting

on behalf of the government at the time he placed the

call, the conversation did not meet the in furtherance re-

quirement of Rule s01(d)(2)(E). The trial court instruct-

ed the jury that because Rossi was acting as a govern-

ment agent at the time he made the phone call, Rossi’s

*The trial judge's view of Ghassan's defense is reflected by his

statement during the charging conference that he had ‘doubts as to

whether there is sufficient evidence here to show under any set of

facts that the defendant Ammar acted as an agent of the government

in these transactions that are before us here.” Tr. 4698: see also

Tr. 4700

W We reject Ghassan’s claim that he did not receive an instruc-

tion on his defense theory. He apparently concedes that the court

accurately summarized his position to the jury, but complains be-

cause the court did not explicitly state that if the jury concluded

that Ghassan had a good faith belief that he was acting as an infor-

mant. it should find him not guilty. Inclusion of this language may

have been preferable but we believe that the court's charge was

adequate. Ghassan’s theory of defense was not legally complicated ;

‘+ was that he lacked the requisite intent. The court's charge did

properly instruct the jury on the issue of intent. Viewed as a

whole, the charge also adequately called the jury's attention to

Ghassan's theory of the evidence. We find no error in the instruc-

tions. See United States v. Brake. $96 F.2d 337, 339 (8th Cir.

1979).

App. 22

statements could not be considered as evidence against

any of the defendants and should be disregarded, but

that lbraham's statements, or anything said by Rossi and

adopted by Ibraham, could be considered.

Stillman argues that the evidence was highly preju-

dicial because it included a statement by Rossi that he

had attempted to contact Stillman ufter learning of the

arrest of some of the conspirators, but that Stillman

would not talk to him because ‘‘it looks like Marshall's

{Stillman} scared or something."’ Stillman claims that

the statement created a ‘false implication of Stillman's

consciousness of guilt’’ because Rossi had never ut-

tempted to contact Stillman. Stillman’s Brief at 34. To

meet that concern, the court specifically called the jury's

attention to the fact that Rossi had testified that he had

not met or spoken to Stillman.

The primary significance of the Ibraham-Rossi con-

versation was not the statement on which Stillman fo-

cuses but instead was Ibraham's repeated mention of

Stillman’s name in connection with raising bail money

for the arrested conspirators, which suggests his associ-

ation with them. Since this fact was both relevant and

probative, and could not have been considered if Rossi's

half of the conversation was excised, the court did not

err in admitting it, particularly in view of its cautionary

instructions. See United States v. Smith, 623 F.2d 627.

631 (9th Cir. 1980),"

Both Stillman and Judith claim that certain out-of-court

statements should not have been admitted because they

constituted narratives of past events and thus were not

"Ghassan and Judith contended that they too were prejudiced

by the admission of the Rossi-Ibraham conversation, on the ground

that it contained references to them. Our rejection of Stillman’s

claim applies to them as well.

App. 23

in furtherance of the conspiracy. Judith challenges the

admissibility of Ghassan’s statements to Welkie and Rossi

that when he and Judith returned from Beirut on July

4+ they had been checked well at customis, but that the

heroin concealed in their baby's diaper and Judith ‘s

vagina had not been found. Stillman challenges [braham’s

statement to Ghassan, Judith and Welkie, as recited by

Welkie, that Stillman owed them a lot of money for the

last shipment of heroin and would have to pay Up before

he could get another package. Statements between con-

spirators which provide reassurance, serve to maintain

trust and cohesiveness among them, or inform each other

of the current status of the conspiracy further the ends of

the conspiracy and are admissible so long as the other

requirements of Rule 801(d)(2)( kK) are met. See United

States vy. Mason, 658 F.2d 1263, 1270 (9th Cir, 1981);

United States v. Goodman, 605 F.2d 870, S78 (5th Cir.

1979), Such statements are more than ‘'mere narratives’

of past events. See United Stutes v. Eubanks, 591 F.2d

513, 520 (9th Cir. 1979). They ditfer from the statements

made in United States v. Provenzano, supra, relied on by

appellants, which had been made to non-members of the

conspiracy who had no need to know about the matters

disclosed.

We are somewhat more troubled by Judith’s testimony

that when Ghassan was in the Erie County Jail following

his arrest, he told her to try to raise money for his bail

by contacting Stillman, who owed them $250,000 for heroin,

if she could not get an advance from one of their business

customers. Stillman contends that because the conversa-

tion took place after Ghassan's arrest, it Was not in fur-

therance of the conspiracy. However, the arrest of a con-

spirator does not necessarily terminate his or her involve-

ment in the conspiracy. See United States v. Killian,

639 F.2d 206, 209 (Sth Cir), cert. denied, 451 U.S, 1021

App. 2+

(1981). Ghassan's revelation to Judith of his relutionship

with Stillman was for the purpose of enabling her to col-

lect money owed as a result of the heroin transactions.

The in furtherance requirement must be given the same

practical interpretation as the pendency requirement. The

distribution of the proceeds of a conspiracy is one of its

central objectives, and statements which are directed to

that purpose must be considered to be in furtherance of

the conspiracy. See United States v. Fortes, 619 F.2d 108.

117 (1st Cir, 1980); United States v. Hickey, 596 F.2d 1082,

1089-90 (1st Cir.), cert. denied, 444 U.S. 853 (1979); Unit.

ed States v. Patton, 594 F.2d 444, 447 (Sth Cir. 1979).

DURING THE COURSE OF THE CONSPIRACY

Appellants contend that the conspiracy charged in

the indictment terminated with the arrest of Ghassan.

Welkie, McFayden and Bunner on July 31 and immedi-

ately following, and that any conversations thereafter fail

to satisfy the final prerequisite for admitting cocouspira-

tor statements under Rule sO01(d)(2)(E) because they

Were not made ‘‘during the course’’ of the conspiracy,

This contention is based on a misconception. As we have

already indicated, the requirements that a statement must

be in furtherance of and during the course of the con-

spiracy are closely linked. ‘The arrest of some of the

conspirators, even its principal member, does not neces-

sarily terminate the conspiracy. See United States v.

Mason, 658 F.2d at 1269-70 (conspiracy may continue even

when all but one coconspirator have been arrested): United

States v. Killian, 639 F.2d at 209.

'? Ghassan's statement was also admissible under Fed. R. Evid.

804(b)(3) as a declaration against his penal interest. See United

States v. Lieberman, 637 F.2d 98. 103-04 (2d Cir. 1980)

App. 25

A conspiracy is presumed to continue until its objective

is achieved. United States v. Corallo, 413 F.2d 1306 (2d

Cir.), cert. denied, 396 U.S. 958 (1969). Even after the

arrests of Ghassan, Welkie, MeFayden and Bunner, most

of the conspirators remained at large.

Where evidence demonstrates that conspirators re-

main fully capable of carrying out their purpose, not-

withstanding the arrest of one of them, it cannot be

said that the conspiracy is terminated as a matter ot

law .... The fact that the conspiratorial object was

postponed or slowed down does not unequivocally show

that the conspiracy was terminated.

United States v. Smith, 600 F.2d 149, 153 (Sth Cir. 1979)

(quoting United States ¥. Smith, 57s Pld 1227, 1237 (Sth

Cir, 1978) (Lay, J., concurring) ).

In this case, there was no evidence of abandonment of

the conspiracy; in fact there was affirmative evidence that

the conspiracy did indeed continue. After Ghassan's arrest

there was an importation of heroin involving Abedeen,

Rossi and Dugan, which had previously been arranged by

and was at the behest of Ghassan. As with previous im-

portations, the heroin was obtained from the coconspira-

tors in Lebanon. Furthermore, Rossi continued to try

to sell the heroin on behalf of the coconspirators until his

final arrest on October 2. The conspirators remained in

contact with each other and hoped to use funds from that

heroin for the release from custody of those arrested.

Under these circumstances we cannot assume that the con-

spiracy terminated until at least Rossi's October arrest."

1S For the same reasons, we reject the Ammars argument that

there was a fatal variance between the single conspiracy charged

in the indictment and what they claim were multiple conspiracies

proved by the evidence at trial. The evidence was sufficient to

(footnote continued )

App. 26

Just as a defendant must produce evidence showing that

s/he withdrew from a conspiracy, see United States v.

Steele, 685 F.2d 793, 803-04 (3d Cir. 1982); United States

v. Gillen, 599 F.2d 541, 548 (3d Cir.), cert. denied, 444

U.S. 866 (1979), so also must defendants show that the

conspiracy terminated, such as by demonstrating that its

ends had been so frustrated or its means so impaired

that its continuation was no longer plausible.

PERSONAL KNOWLEDGE REQUIREMENT

Stillman contends that under the rules, a foundation of

personal knowledge is required before coconspirator state-

ments can be admitted under Rule 801(d)(2)(E). Fed. I.

Evid. 602 provides that *‘{a) witness may not testify to a

matter unless evidence is introduced sufficient to support

a finding that he has personal knowledge of the matter."’

However, it is clear from the Advisory Committee Notes

that the drafters intended that the personal knowledge

foundation requirement of Rule 602 should apply to hear-

Say statements admissible us exceptions under Rules 803

and 804 but not to admissions (including coconspirator

(footnote continued }

justify a finding of a single, continuing conspiracy. See generally

United States v. Boyd, 595 F.2d 120, 123 (3d Cir. 1978) (“the

government without committing a variance . . . may establish the

existence of a continuing core conspiracy which attracts different

members at different times and which involves different sub-groups

committing acts in furtherance of the overall plan”); United States

v. Kenny, 462 F.2d 1205, 1216 (3d Cir.), cert. denied, 409 U.S. 914

(1972) (“Kotteakos [v. United States, 328 U.S. 750 (1946)] pro-

hibits charging multiple unrelated conspiracies, but it does not pro-

hibit charging one master conspiracy and establishing at trial that

under the master conspiracy more than one subsidiary scheme was

involved” ).

App. 27

statements) admissible under Rule $01(d)(2)..% See Me-

Cormick, Handbook of the Law of Evidence $262, at 628

(2d ed. 1972); cf. Mahlandt v, Wild Canid Survival & Re-

search Center, Inc., 588 F.2d 626, 630-31 (Sth Cir. 1978)

(personal knowledge requirement does not apply to Fed.

R. Evid. 801(d)(2)(D)). Accordingly, we reject Still-

man’s argument."

THE CONFRONTATION CLAUSE

Stillman contends that even if the coconspirator state-

ments were properly admitted under the Federal Rules

of Evidence, their admission violated his rights under

the Confrontation Clause of the Sixth Amendment. The

14 The Advisory Committee Notes to Rule 801 state, in relevant

part.

The freedom which admissions have enjoyed from technical

demands of searching for an assurance of trustworthiness in

some against-interest circumstance, and from the restrictive

influences of the opinion rule and the rule requiring firsthand

knowledge. when taken with the apparently prevalent satisfac-

tion with the results, calls for generous treatment of this avenue

to admissibility.

‘citations omitted) (emphasis added).

15 In United States v. Lang, 589 F.2d 92 (2d Cir. 1978), the

same out-of-court statement was sought to be introduced as either a

declaration against penal interest under Fed. R. Evid. 804(b) (3) or

a coconspirator statement under Fed. R. Evid. 801(d)(2)(E).

The court determined that the statement could not be admitted as a

declaration against penal interest because of the absence of any

showing of personal knowledge under Rule 602, but did not resolve

the coconspirator statement issue in the same manner. Instead, it

concluded that the statement was not admissible under Rule 801

(d)(2)(E). not because of the lack of personal knowledge, but be-

cause it had not been made in furtherance of the conspiracy.

App. 2 ys 0)

circuits are divided as to whether a determination that

coconspirator statements are admissible under Rule 801-

(d)(2)(E) is ipso facty determinative that the require-

ments imposed by the Confrontation Clause are also satis-

fied. Compare United States v. Papia, 560 F.2d $27, 836

n3 (7th Cir. 1977) (congruent) and Ottomano vy. United

States, 468 F.2d 269, 273 (1st Cir. 1972), cert. denied.

409 U.S. 1129 (1973) (congruent) with United States v.

Perez, 658 F.2d 654, 660 & n.5 (9th Cir. 1981) (not con-

gruent) and United States v. Wright, 588 F.2d 31, 37-3

(2d Cir. 1978), cert. dented, 440 U.S. 917 (1979) (not con-

gruent). See alsu United States vy. Lurz, 666 F.2d 69, S0.-

$1 (4th Cir. 1981) (treating the Rule 801 inquiry and the

Confrontation Clause inquiry as the same); United States

v. Peacock, 654 F.2d 339, 349-50 & n.1 (Sth Cir. 1981)

(treating the two inquiries as distinct). We have not vet

ruled on this issue.

Although the Confrontation Clause and the evidentiary

hearsay rules ‘‘stem from the same roots,’’ the Supreme

Court ‘thas never equated the two.’’ Dutton v. Evans,

400 U.S. 74, 86 (1970). If the language of the Confronta-

tion Clause giving a criminal defendant ‘‘the right...

to be confronted with the witnesses against him’’ were to

be applied literally, it would preclude use of any hearsay.

Ohio v. Roberts, 448 U.S. 56, 62-63 (1980). The Supreme

Court has stated, however, that both history and policy

militate against such a literal application. /d. at 62. In-

stead the Court has held that the Confrontation Clause

restricts the range of admissible hearsay by imposing a

two-prong requirement: first, the government must nor-

mally show that the declarant is unavailable and that the

hearsay testimony is thus necessary; and, second, the

statement must bear sufficient ‘‘indicia of reliability’’ to

demonstrate its trustworthiness. Jd. at 65-66.

App. 24

We need not decide in this case the extent to which

the government must show the declarant’s ‘*unavailabil-

ity’’ when it seeks to introduce coconspirator statements.

It is conceded that the declarants were either physically

unavailable because they had not yet been apprehended,

as in the case of Ibraham and Abedeen, or practically un-

available because they were co-defendants who chose not

to testify, as in the case of Ghassan and MecFayden.

Instead, Stillman argues that the statements fail to

meet the ‘‘reliability'’’ prong of the Ohio v. Roberts test.

‘The government does not suggest that no reliability in-

quiry is appropriate. However, it quotes the Supreme

Court’s statement that ‘*{rjeliability can be inferred with-

out more in a case where the evidence falls within a firmly

rooted hearsay exception,”’ 448 U.S. at 66, and argues

that Fed. R. Evid. 801(d)(2)(E) is just such a ‘firmly

rooted hearsay exception.’* On several grounds we be-

lieve that coconspirator statements are not encompassed

in the ‘‘hearsay exception|s)*’ to which the above quota-

tion applies.

In the first place, coconspirator statements are not

technically hearsay. The hearsay exceptions are em-

bodied in Rules 803 and 804, and are specifically de-

nominated as such. In contrast, the Federal Rules of

Evidence categorize coconspirator statements along with

admissions as ‘*[s]tatements which are not hearsay’ under

Rule 801(d)(2). Thus the rule permitting their admis-

sion is not ‘‘a firmly rooted hearsay exception.”

In the second place, and more significantly, the ra-

tionale for admitting evidence under the rules covering

hearsay exceptions is different from that used to admit co-

conspirator statements. Evidence falling within the

hearsay exceptions is admissible because of its special

trustworthiness. See MeCormick, supra. $262, at 628; 5

App. 30

Wigmore on Evidence §$1420, 1422, Admissions, on the

other hand, are not admitted because of confidence in

their inherent reliability. ‘They are instead admitted be-

cause a party will not be heard to object that s/he is un-

worthy of credence. See MeCormick, supra, at 628-29,

As explained by the Advisory Committee, ‘* Admissions

by a party-opponent are excluded from the category of

hearsay on the theory that their admissibility in evidence

is the result of the adversary system rather than satisfac-

tion of the conditions of the hearsay rule... . No guar-

antee of trustworthiness is required in the case of an ad-

mission.** Fed. R. Evid. s01(d)(2) Notes of Advisory

Committee on Proposed Rules.

Rule 801(d)(2) treais coconspirator statements as a

category of party admissions. It does so because of the

legal fiction that each conspirator is an agent of the other

and that the statements of one can therefore be attribut-

able to all. United States v. Vrowery, 542 F.2d at 626. In

effect, the Rules have adopted the agency rationale, al-

though the framers recognized that this theory is ‘‘at

best a fiction.’* Fed. R. Evid. 801(d)(2)(E) Notes of Advi-

sory Committee on Proposed Rules.

If there is no assumption that a coconspirator state-

ment is per se trustworthy, a Rule 801 inquiry cannot be

viewed as necessarily equivalent to a Confrontation Clause

inquiry. It must be separately ascertained whether co-

conspirator statements sought to be admitted are attended

by adequate assurances of reliability. As the Court stated

in California v. Green, 399 U.S. 149, 155 (1970), the evi-

dentiary rules and the Confrontation Clause ‘‘are general-

ly designed to protect similar values’’ but the overlap is

not complete. Statements which satisfy one may not satis-

fy the other. We cannot, as the government would have

us do, abdicate our responsibility to preserve constitu-

App. 31

tional values to the rule writers, whether federal or state.

On the other hand, since the (Confrontation Clause is

equally applicable in state trials, see Pointer v. Texas, 380

U.S. 400 (1965), we must be cautious not to use the Con-

frontation Clause as a vehicle for imposing what are mere-

ly our evidentiary preferences on the states. In fact, the

plurality opinion in Dutton which distinguished between the

separate inquiries suggested that the federal evidentiary

rule on coconspirator statements Was more limited than

required by the Confrontation Clause. See 400 U.S. at $2.

We agree with the government that in many, if not

most, instances a coconspirator statement which is ad-

missible under Rule $01(d)(2)(E) will also be sufficient-

ly reliable to satisfy the Confrontation Clause. See Unit-

ed States v. Nelson, 603 F.2d 42, 46 (Sth Cir. 1979)

(‘absent some unusual circumstance ”’ coconspirator state-

ments which satisfy Fed. R. Evid. 801(d)(2)(E) do not

violate the Confrontation Clause). The Ninth Circuit has

identified the following factors a= relevant to the Con-

frontation Clause inquiry:

(1) whether the declaration contained assertions of

past fact; (2) whether the declarant had personal

knowledge of the identity and role of the participants

in the crime; (3) whether it was possible that the

declarant was relying upon faulty recollection; and

(4) whether the circumstances under which the state-

ments were made provided reason to believe that the

declarant had misrepresented the defendant's involve-

ment in the crime. Dutton, 400 U.S. at 88-89, 91 S.Ct.

at 219-220.

United States v. Perez, 658 F.2d at 661 (footnote omitted ).

The court also stated that, ‘‘All four elements need not

be present in order to satisfy the confrontation clause.

In some circumstances, a statement may be admitted over

confrontation clause objections even if it does not pass

scrutiny under each prong of the Dutton test.’ Id.

App. 32

Stiulman suggests that the Confrontation Clause re-

quires that a declarant have personal knowledge before

the coconspirator statement will be admissible. Although

personal knowledge is not a requirement for admission

as a coconspirator statement under Rule s01(d)(2)(E),

see text at I]. D., supra, it cannot be disregarded in the

separate though parallel analysis under the Confrontation

Clause. It is, as the Ninth Circuit recognized in Perez,

one of the significant, albeit not necessarily indispensable,

factors which should be considered in determining whether

the content and circumstances of the challenged statement

bear sufficient ‘‘indicia of reliability’’ to vouch for its

trustworthiness.

Our review of the record convinces us that the chal-

lenged evidence satisfies the ‘‘reliability’’ requirement of

the Confrontation Clause. The out-of-court statements

by Ghassan, Ibraham, and Abedeen contain numerous

‘indicia of reliability.", They appear to have been based

on first-hand knowledge, they were made under circum-

stances which suggest little incentive for prevarication,"”

and they were corroborated by additional evidence.

Stillman claims that DE.\ agent Schmotzer’s testimony

that McFayden told him on several occasions that he was

having difficulty obtaining heroin because Ghassan was

delivering it to Stillman instead was not reliable be-

admitted under Rule 801(d)(2)(E) were made to other members

of the conspiracy. In view of the importance of maintaining trust

between conspirators, and the possibility that whatever was said by

one might be relied upon by the others, the conspirators would have

understood that a falsehood could have destroyed the enterprise

in which they were jointly engaged. Moreover. many of the state-

ments were made under circumstances which indicate spontaneity,

decreasing the likelihood of deliberate falsehood.

App. 35

cause not based on McFayden's personal knowledge. We

agree that the basis for MeFayden’s information is un-

clear, but even if his statements were erroneously admitted,

this did not constitute reversible error. These statements

were largely duplicated by other properly admitted evi-

dence. Rossi testified that, as they were leaving a meeting

with Schmotzer and McFayden, Ghassan and Ibraham

stated that they wished they had not left the heroin be-

hind in Detroit (where they had met with Stillman) since

they felt that they could make a better sale to Schmotzer.

In view of this testimony, the admission of McFayden’s

statements could not have impermissibly prejudiced Still-

man.

Accordingly, although we are cognizant that admission

of coconspirator statements in a complex conspiracy trial

with multiple defendants must be carefully monitored by

the district court at all stages of the trial in order to avoid

undue prejudice to the defendants, we find no reversible

error in their admission in this case.

111.

MARITAL PRIVILEGE

Ghassan Ammar contends that Judith’s testimony re-

garding conversations between them shortly after his

arrest was inadmissible because it violated the marital

communications privilege. Judith testified that when

she visited Ghassan in jail, he told her to try to raise

money for his bail and attorney's fees, if necessary, from

money owed by Stillman from their heroin dealings. Ju-

dith used this testimony to support her defense that she

had been unaware until these conversations that Ghassan’s

drug dealings had been for his own benefit rather than as

part of an arrangement with the government. Ghassan

contends that Judith'’s testimony was particularly damag-

App. 34

ing to him because it undermined his own defense that he

had undertaken the acts charged in the indictment in his

role of government informant.

Judith, of course, could not be denied the right to testify

in her own defense. Testimony essential to a spouse's

criminal defense must be permitted even if it discloses

privileged communications. A severance may be granted

for a co-defendant spouse, if necessary to protect his or

her rights. See United States v. Fields, 458 F.2d 1194.

1198-99 (3d Cir, 1972), cert. denied, 412 U.S. 927 (1973),

Here, however, the district court denied the severance

after concluding that the conversations were not priv-

ileged marital communications because they pertained to

ongoing or future criminal activity involving both spouses.

Other circuits have recognized such an exception to the

marital communications privilege, on the ground that such

communications are not worthy of protection. See, 0.9.

United States v. Price, 577 F.2d 1356, 1365 (9th Cir.

1978), cert. denied, 439 U.S. 1068 (1979); United States

v. Mendoza, 574 F.2d 1373, 1379-81 (Sth Cir.), cert. denied.

439 U.S. 988 (1978); United States v. Kahn, 471 F.2d 191.

194-95 (7th Cir. 1972), rev'd on other grounds, 415 U.S.

143 (1974). We reject Ghassan’s contention that our deci-

sion in Appeal of Malfitano, 633 F.2d 276 (3d Cir. 1980),

holds to the contrary.

In Malftano, we held that the wife of a grand jury

target could invoke the privilege against adverse spousal

testimony and refuse to testify before the grand jury,

even though she was allegedly involved in her husband's

criminal activity. We held that marriages involving crim-

inal activity were no less worthy than other marriages of

the protection which the privilege against adverse spousal

testimony was designed to provide. We were careful to

emphasize, however, that we were not addressing the

App. 35

separate marital communications privilege, 633 F.2d at 277

n.2, and indicated that the result under it might well be

different. /d. at 279 n.5.

The two privileges are distinct. The privilege against

adverse spousal testimony, which prevents one spouse from

being compelled to testify against the other, rests with the

testifying spouse, who may choose to waive it. United

States v. Traummel, 445 U.S. 40, 53 (1980). This privilege,

designed to protect the marriage relationship as it exists

at the time of trial, ‘‘applies to all testimony of any kind."’

See 2 Wright & Miller, Federal Practice d& Procedure 2d

$406 (1983). In contrast, the marital communications

privilege prevents a testifying spouse from disclosing con-

fidential communications between the spouses. It ‘‘reaches

only those communications made in confidence and intended

to be confidential.’* /d.

The government argues that while marriages involving

criminal activity may still be worthy of protection, specific

marital communications in furtherance of that criminal

activity are not deserving of protection. This privilege is

akin to the attorney-client privilege, also designed to pro-

tect the confidences of the communicator, which has been

held not to extend to communications in furtherance of

criminal activity. See Clark v. United States, 289 U.S. 1

(1933); In re Grond Jury Proceedings, 604 F.2d 798, 802

(3d Cir. 1979). We join the other circuits in holding that

communications between spouses pertaining to ongoing

or future criminal activity, are not protected against dis-

closure by the privilege for confidential marital communi-

cations.

We have already concluded that the post-arrest con-

versations between Ghassan and Judith were in further-

ance of the conspiracy. Ser text at typescript page 29,

supra, It follows that they were not privileged, and that it

App. 36

Was not error to allow Judith to testify nor to refuse the

severance, a decision discretionary with the trial court.”

lV,

JENCKS ACT

Appellants contend that the district court erred in

failing to strike the testimony of DE. ugent Schmotzer

or to declare u mistrial after it was revealed that Schmotzer

had destroyed the handwritten drafts of bis reports, These

contained, inter alia, Schmotzer's accounts of his meetings

and telephone conversations with the Ammars and Me-

Fayden while Schmotzer was posing as a heroin buyer.

Appellants contend their destruction violated the Jencks

Act, 18 U.S.C. § 3500, which requires that ‘*statements”’

of a government Witness relating to the subject matter of

his testimony be produced by the government upon motion

of the defendant,

In analyzing this issue, it is important to distinguish

between three categories of documents: (1) contempora-

neous rough notes taken by au government agent of meet-

ings, conversations, or interviews during the course of

his or her investigation; (2) the agent's subsequently pre-

pared drafts of his reports of these incidents: and (3)

the final report signed by the agent. In United States vy,

Vella, 562 F.2d 275, 276 (3d Cir. 1977) (per curiam), we

held with regard to the first category that ‘the rough in-

terview notes of F.B.I. agents should be kept and pro-

duced so that the trial court can determine whether the

notes should be made available to the idefendant) under

'* Furthermore, Welkie testified that the conspirators were planning

to leave the country after Ghassan’s release on bail. Tr. Jan. 16, 1981,

at 127, Since we can infer that their purpose was to avoid pros-

ecution, this provides additional support for our conclusion that

the bail discussions between Ghassan and Judith were not privileged.

App. 37

the rule in Brady v. Maryland, 378 U.S, 38 (1963) re-

quiring disclosure of exculpatory evidence} or the Jencks

Act."' Accord United States v. Parker, oAd F.2d 1217,

1223-25 (9th Cir.), cert. denied, 480 U.S, 971 (1977) ; Lnited

States v. Harrison, 524 F.2d 421, 428-29 (D.C. Cir. 1975).

But see United States v. Martin, 565 F.2d 362, 363 (Sth

Cir. 1978); United States v. McCallie, 554 F.2d 770, 773

(6th Cir, 1977). No question under Vella arises here.

Schmotzer taped some of the conversations, had only

rough notes of others, and had no contemporaneous record

of still others. The tape recordings were made available

to appellants and were played at trial, ‘The rough notes

of the conversations were turned over to the defendants.

The final typed, signed reports were also made available

to defendants.

The issue in this case is thus contined to the second

category of materials referred to above. Appellants claim

they were entitled to the handwritten drafts of Schmotzer’s

reports, on the theory that some of those were the most

nearly contemporaneous record ot the events at issue.

Under the Jencks Act the government must produce

written statements made by a witness which are ‘* signed

or otherwise adopted or approved by him.”’ 18 U.S.C.

$3500(e)(1). Ordinarily rough drafts of an agent’s re-

port which are subsequently typed verbatim would not

be a producible ‘‘statement.’’ See United States v. Kaiser,

660 F.2d 724, 731-32 (9th Cir, 1981). On the other hand,

in our Walden decisions, we recognized that a report draft

which ‘‘was at least in a form sufficiently acceptable to the

agent that he allowed it to be reviewed by his superior”

might have been ‘‘adopted or approved"* by the agent and

hence fall within the Jencks Act. United States v. Walden,

578 F.2d 966, 970 (3d Cir. 1978) (Walden 1), on remand,

465 F.Supp. 255 (B.D, Pa, 1978), aff'd, 590 F.2d 85 (3d

App. 38

Cir.) (Walden 11) (per curiam), cert. denied, 44 U.S. 849

(1979),**

Although in most cuses a rough draft may not be a

Jencks Act ‘‘statement,’’ we believe the same rationale

which underlay our decision in Ielle directing retention

of rough notes is also applicable to handwritten drafts ot

agents’ reports. We therefore hold that, hereafter. the

government must retain and, upon motion, make avyail-

able to the district court both the rough notes and the

drafts of reports of its agents to facilitate the district

court's determination whether they should be produced,

This requirement should impose no undue burden on the

government.’”

In this case, unlike Walden, the handwritten drafts were

not shown to Schmotzer's supervisor. Thus, there would

have been no basis to find that Schmotzer had ‘adopted

or approved’ them, a predicate to the Walden finding that

'* The materials were referred to in Halden / as ‘rough notes

and draft.” After ordering a remand on another issue, we directed

the trial court to inspect the materials (which we assumed still to

be available) and determine whether they were “statements” within

the Jencks Act and, if so, whether their non-disclosure was harm:

less. On remand, the district court found that the drafts had in

fact been destroyed. Although the court determined that they had

been Jencks Act “statements” and therefore should not have been

destroyed, it concluded that their destruction was harmless error.

United States v. Walden, 465 F. Supp. 255 (E.D. Pa. 1978). We

affirmed, $90 F.2d 88 (3rd Cir.) (per curiam). cert. denied, 444

U.S. 849 (1979).

"We have been advised that the DEA itself has adopted regu-

lations requiring the retention of draft reports, at least in cases

where no contemporaneous notes were taken. Because of our dis-

position of this issue, we need not decide whether, as appellants

urge, the failure to follow these internal regulations would itself

constitute a Jencks Act violation.

App. 39

the handwritten drafts were ‘‘statements” under the

Jencks Act.

Furthermore, Schmotzer testified that he compared the

typewritten reports with the handwritten drafts and de-

termined that they were substantially identical before

he destroyed the handwritten drafts. There is no basis

for concluding that the destruction was in bad faith. Thus,

even were these drafts Jencks Act material, their destrue-

tion would have constituted harmless error. See United

States v. Roemer, 703 F.2d 805, 807 (Sth Cir. 1983) ;

Walden 11, 590 F.2d at 86; United States v. Vella, 562

F.2d at 276.

We do not read our decision in Walden I as requir-

ing testimony beyond that of the agent that the hand-

written drafts and typed reports were identical, as the

district court suggested in United States v, Butts, 535 F.

Supp. 608, 611-15 (E.D, Pa, 1952), While such addition-

al testimony may be helpful in making the Jencks Act

determination, we did not mean to suggest that inde-

pendent corroboration is a necessary requirement for a

finding of harmless error. Nonetheless, the government

must be vigilant in observing its responsibility to preserve

these materials because the Supreme Court has cautioned

that ‘‘the harmless error doctrine must be strictly applied

in Jencks Act cases." United States v. Goldberg, 425 US.

94, 111 n.21 (1976).

We therefore conclude that the district court did not err

in refusing to strike agent Schmotzer’s testimony or to

declare a mistrial based on alleged Jencks Act violations.

SIXTH AMENDMENT CLAIM

Judith Ammar contends that Welkie should not have

been permitted to testify regarding his conversation with

App. 40

her on September 19, 1950. At that time, Welkie was

cooperating with the government, and the government was

aware that Judith was standing on her Fifth Amendment

right to remain silent with respect to all questions regard-

ing her involvement in the drug activities since she had

appeared with counsel before the grand jury investigating

Ghassan on August 28, 1980 and declined to testify. Judith

asserts that the September 19 conversation was an effort

by the government to deliberately elicit incriminating

statements from her, in violation of her Sixth Amend-

ment rights as established in Massiah v, United States.

377 U.S. 201, 206 (1964), and I'nited States y. Henry, 447

U.S. 264, 273 (1980). However, at the time of the Septem-

ber 19, 1980 conversation, Judith had not yet been indicted.

Therefore, the Massiah-I]enry principles do not upply.

See United States v. Hamilton, 689 F.2d 1262, 1275 (6th

Cir. 1982), cert. denied, 103 S.Ct. 753 (1983): United States

v. Hollingshead, 672 F.2d 751, 755 (9th Cir. 1982); see

also Hoffa v. United States, 385 U.S. 293, 309-10 (1966).

In Massiah, the Court held that a defendant's right to

counsel was violated by the introduction at trial of state-

ments he made to his co-defendant, who was at the time

acting as an agent of the government. Similarly, in

Henry the Court held that the government's use of de-

fendant's cellmate to report incriminating statements made

by defendant during their conversations violated the de-

fendant’s Sixth Amendment rights, notwithstanding the

fact that the informer had been instructed not to initiate

any questioning. In both JJassiah and Henry, the chal-

lenged conversations occurred after the defendant's indict-

ment. Indeed, the Henry Court stated that: ‘It is quite

a different matter when the Government uses undercover

agents to obtain incriminating statements from persons not

in custody but suspected of criminal activity prior to the

time charges are filed.’’ 447 U.S. at 272. While the Court

App. 41

stated that it is not necessary that the defendant be actually

in ‘‘custody"’ for the rule of Massiah and Henry to apply,

id, at 273-74 n.11, it has also made clear that the Sixth

Amendment right to counsel is not triggered until some

action is taken constituting the initiation of criminal pro-

ceedings against the defendant. See Brewer y. Williams.

430 U.S. 387, 398-99 (1977); Kirby v. Illinvis, 406 U.S.

682, 688 (1972). We view the government's conduct re-

garding the September 19, 1980 conversation to be of ques-

tionable propriety, but we believe it is clear from the

Supreme Court's statements that the Sixth Amendment

right to counsel, as enunciated in Massiah and Henry, does

not extend to the pre-indictment period.

VI.

CHEMISTRY ISSUES

Appellants raise what Stillman has denominated as

chemistry issues. They suggest, somewhat opaquely, (1)

that the substance in evidence which formed the basis

for the indictments was not proven to be heroin, and (2)

that even if it were heroin, it may not have been a

narcotic.

IDENTIFICATION OF THE HEROIN

Appellants were convicted on two conspiracy counts

as well as a number of substantive counts involving im-

portation and distribution of ‘‘heroin, a Schedule I nar-

cotic substance.’’ The schedules of controlled substances

are set forth in 21 U.S.C. $812, and are listed in 21 C.F.R.

$1308.11. The Schedule I substances are drugs or other

substances which have ‘‘a high potential for abuse’’, ‘‘no

currently accepted medical use in treatment in the United

States’’, and as to which ‘‘there is a lack of accepted safety

App. 42

for use of the drug or other use under medical supervi-

sion.’’ 21 U.S.C. $812(b)(1). Heroin is listed as a Sched-

ule I drug.*”

At the trial, the government introduced suliples of the

substance in question and presented three expert wit-

nesses, each of whom testified that he had tested one

or more of the samples and had concluded that the sub-

stance was heroin. Roger Godino, a forensic chemist who

worked for the Drug Enforcement Administration for ten

years and analyzed approximately 5,000 exhibits of con-

trolled substances in that time, reached the conclusion that

the substance was heroin after subjecting it to various tests.

He ran at least three different color tests, performed a thin

layer chromatography test, did a gas chromatographic

analysis, and performed an infrared spectrum analysis. He

testified that the most specific test for purposes of iden-

tification of heroin was the infrared analysis, and that he

used accepted techniques in comparing the infrared spec-

trum of the specimen with his standard spectrum for

heroin. He concluded unequivocally that the substance in

question was heroin.

Similar tests were run by the other two government

chemists, each of whom reached the same conclusion.

Alexander Stirton, an employee of the Pennsylvania

State Police with eight years experience in analyzing

controlled substances, testified that he subjected the sub-

* Schedule I(b) includes

unless specifically excepted or unless listed in another schedule.

any of the following opium derivatives or salts, isomers. and

salts of isomers whenever the existence of such salts. isomers

and salts of isomers is possible within the specific chemical

designation |

(10! heroin

App. 48

stance submitted to him to color tests and infrared spec-

trum analysis, and concluded that it was heroin, George

Yamnitzky, a chemist with the Drug Enforcement Adminis-

tration who had analyzed approximately 1,000 specimens

of controlled substances, subjected the samples to color

tests, ultraviolet fluorescence analysis, thin layer chromat-

ography, and mass spectrometry. He stated that he used

the mass spectrometer in preference to an infrared spec-

trophotometer because of the nature of the specimens.

Based on his tests, he concluded that the substance was

heroin.

Stillman introduced the testimony of his expert, Dr.

Robert Shapiro, who testified primarily on general chem-

ical principles. Dr. Shapiro challenged the conclusion of

the government experts that the substance was heroin,

testifying that the results reached by the government

chemists were outside of the ranges for heroin reported

in standard chemical literature. He conceded, however,

that the best method of analysis was to use the spectrum

comparison method employed by the government chemists.

As Godino testified, it was his preferred practice to com-

pare the spectrum of the questioned substance against a

spectrum of known heroin previously obtained by him using

the same instrument and under the same conditions, rather

than to compare it with a standard spectrum found in a

reference book. ‘Tr. 889-90. Significantly, Dr. Shapiro

did not analyze the substance in question himself and de-

fendants have conceded that they could have, but did not,

conduct such an examination.*'

*! The government requested the court to order Dr. Shapiro to

test the substances, but the court refused because of Shapiro's

testimony that he had other commitments which would make it im-

possible for him to do so for several weeks. Tr. 4219-20.

App. 4

The court instructed the jury that it must determine,

beyond a reasonable doubt, that the substance was heroin

or any isomer of heroin.’ The court refused to give the

instruction proffered by Stillman that ‘*|ojnly the optical

isomers of heroin are included.’’ The court characterized

Stillman’s instruction as ‘‘argumentative, lengthy and...

the failure to so instruct the jury was reversible error,

To understand Stillman'’s argument, it is necessary to

distinguish between isomers generally and optical isomers,

which are a type of isomer. lsomers are substances with

the same chemical composition but different structural

*2 After reading the jury the statutory definition of Schedule I

controlled substances, the court stated:

So if you find beyond a reasonable doubt that the substance

in question which we have been dealing with is testified to

as being found at various times, discovered or seized, is heroin,

why, then, of course, that fulfills this definition of the statute.

On the contrary, if you are not convinced beyond a reasonable

doubt that the government has proved that this is heroin or

one of the salts or isomers or salts of isomers, then, of course,

you would find that the government has not made out a case

and you should acquit the defendants.

I will say that you are instructed as a matter of law that

heroin is a controlled substance and you must ascertain whether

the material in question was, in fact, heroin. In so doing, you

may consider all evidence in the case which may aid in the

determination of that issue, including the testimony of any experts

or other witness who may testify to either support or dispute

the allegaiion that the material in question was heroin. Again,

you will note that salts, isomers or salts of isomers of heroin

are included.

Now, if vou find the substance was actually heroin hydro-

chloride, a salt of heroin, then you may find it was heroin, a

controlled substance under Schedule |. But, this, of course,

you must find beyond a reasonable doubt.

App. #9

arrangement. The number of isomers a substance may

theoretically have is a function of the complexity of its

chemical formula. Because heroin has a complex chemical

formula, Cz:HusNOs, the many constituent atoms could be

arranged in a large variety of different structures. While

that theoretical possibility may be of experimental interest,

defendants presented no evidence that it did or could have

any practical significance in this case,

Under the statute, Schedule | controlled substances are

defined to include the isomers of enumerated substances.

The Code of Federal Regulations defines ‘‘isomer’’ as

‘‘the optical isomer’’ for all but specified substances. 21

(F.R. $1308.02(c). Optical isomers, >0 termed because

they rotate a beam of polarized light, are the mirror image

of each other. We do not understand the government to

dispute Stillman’s claim that heroin as referred to in Sched-

ule I of the criminal statute is limited to heroin or its

optical isomer. Instead, it is the government's claim that

because its evidence conclusively showed that the substance

was heroin within the more restrictive meaning, appellants

were in no way harmed by the court’s refusal to give the

instructions they requested.

In what may have been an attempt to befuddle the

issue, the defendants cross-examined the government's

experts on other substances such as pseudoheroin, isoheroin

transheroin, purportedly isomers of heroin, and suggested

by inference that the government experts were unable to

exclude the possibility that the substances examined in

this case might have in fact been one of those compounds.

However, Yamnitsky, a government expert, testified that

the mass spectra he obtained showed that the substance

was heroin, and not either isoheroin or pseudoheroin. Tr.

1961-62. Significantly, the defendant's expert never testi-

fied that the test results in this case demonstrated or even

indicated that the substance Was isoheroin, pseudoheroin,

App. 46

or transheroin, substances which, even if they have been

created, have been so only under experimental laborato-

ry conditions. In fact, there is no evidence that

transheroin has been created at all. It may be that the

defendants mentioned these substances in their cross-

examination merely because they happen to contain the

word ‘‘heroin.*’ The government's expert Godino specifi-

cally stated that ‘‘isoheroin, pseudoheroin, and transheroin,

that is not a form of heroin, Even though it says the word

heroin in it. It is a little misleading, especially to people

that are not familiar... with the literature.’ Tr, 895.

The district court instructed the jury on the only is-

sue put into dispute by the evidence, whether the substance

was heroin. It was not obliged to instruct the jury with

regard to hypothetical possibilities when there was no

basis in the evidence to support such possibilities. See

United States v. Conroy, 589 F.2d 1258, 1273 (Sth Cir.),

cert, denied, 444 U.S. 831 (1979). Indeed, in his closing

argument, Stillman’s attorney attacked the data obtained

by the government's cheniists, but expressly stated, ** Let

us be certain of what we understand. I am not at this

point arguing to the jury that those exhibits are not

heroin.’’ Tr. March 4, 1981 (summations), at 82. We be-

lieve, therefore, that whether or not there was a techni-

cal error in the court’s instructions, the refinement re-

quested by Stillman merely eliminated possibilities that

were already definitively climinated by the government's

witnesses, and that there was a valid basis in the evi-

dence for the jury's conclusion that the substance was

heroin within Schedule I,

THE SUBSTANCE AS A NARCOTIC

Stillman further contends that even if the government

proved that the substance in the exhibits was heroin, and

App. 47

thus a Schedule | substance, the government failed to show

that this substance was a narcotic. The statute differenti-

ates in penalty between crimes involving Schedule I sub-

stances which are narcotics and those which are non-

narcotics. It imposes a 15 year penalty in the case of a

controlled substance in Schedule I which is a narcotic

drug, see 21 U.S.C. $841(b)(1)(A), but only a oO year

penalty in the case of a controlled substance in Schedule I

which is not a narcotic drug, see 21 U.S.C, $841(b)(1)(B).

Stillman argues that because heroin has an optical isomer

(or enantiomer), which the government concedes, the gov-

ernment was obliged to negate the possibility that the sub-

stance in this case was the optical isomer of heroin. Heroin

is an opium derivative. Opium, which is found in a natural-

ly growing plant, contains morphine which can be modified

to yield heroin. The product of this process is L-heroin,

so named because it rotates polarized light to the left.

Heroin made from natural morp ine is always L-heroin.

Its optical isomer would be D-heroin (sometimes referred

to as R-heroin), and would have to be created from

synthetic morphine.

Stillman apparently argues that if the substance were

D-heroin, it would not be a narcotic and hence not subject

to the 15 year penalty. Admittedly, none of the govern-

ment experts conducted any tests on the substance to de-

termine if it was D-heroin. The government responds that

such a test was unnecessary because the statute defines

‘‘narcotic’’ as including ‘‘opium derivatives’’ and heroin

is listed as an opium derivative without distinguishing be-

tween L- and D-heroin. See Verdugo v. United States, 402

F.2d 599, 607 (9th Cir. 1968), cert. denied, 402 U.S. 961

(1971) (stating that heroin is a narcotic drug as a matter

of law). Notwithstanding differences between D-heroin and

L-heroin, Congress is free to define them both as narcotics.

App. +5

The district court was not required to charge the jury

with respect to the possibility that the substance was D-

heroin. In the first place, neither the statute nor the

Code of Federal Regulations distinguishes between L-

heroin and D-heroin. Furthermore, no witness testified

that there was any reasonable likelihood that the sub-

stance in question was D-heroin. As the government wit-

hesses testified, while theoretically possible, it would be

extremely expensive to manufacture heroin synthetically.

Defendant's witness, Dr. Shapiro, did not testify that there

was any D-heroin available. He did testify that synthetic

morphine, from which D-heroin could theoretically be de-

rived, had been produced under university laboratory con-

ditions, but he gave no indication whether the amounts

produced were significant. Moreover, he stated that heroin

derived from synthetic morphine would not necessarily be

D-heroin, and that in the laboratory examples he knew of

the heroin produced had in fact been an equal mixture of

L-heroin and D-heroin. Tr. 4184-85.

We believe that the language of the Ninth Cireuit in

United States v. Hall, 552 F.2d 273, 276 (9th Cir. 1977),

where the court held that the evidence was sufficient to

support defendant's conviction notwithstanding the gov-

ernment’s failure to test the cocaine in question to deter-

mine whether it was L-cocaine or [-cocaine, is equally

relevant here:

[The government's expert| testified that his tests in-

dicated that the substance was cocaine.

In addition, while {his} tests could not distin-

guish between the isomers of cocaine, there was ex-

tensive circumstantial evidence showing that the

substance was natural cocaine derived from coca leaves

(I-cocaine) rather than d-cocaine. The government

presented evidence that d-cocaine was difficult and ex-

pensive to make. More importantly, the experts had

App. 49

never actually found a specimen of d-cocaine. Finally,

d-cocaine could be synthesized anywhere, according to

the experts, yet instead of basing his operations in the

interior United States, there was evidence that [defen-

dant} was engaged in a smuggling operation to bring

drugs into the United States from Mexico. This evi-

dence, with reasonable inferences drawn therefrom, is

more than adequate to permit a rational conclusion by

the jury that the substance sold by [defendant] was,

beyond a reasonable doubt, cocaine.

Once again, we believe that the district court was not

obliged to instruct the jury on a hypothetical possibility

without the support of evidence in the record and agree

with the district court that such an instruction would

have been both misleading and confusing.

Vu.

CONCLUSION

As the Supreme Court has recently stated, ‘‘there can

be no such thing as an error-free perfect trial.’’ United

States v. Hasting, 51 U.S.L.W. 4572 (U.S. May 23, 1983).

This is particularly true when, as here, the trial is long

and there are multiple defendants with multiple objections.

Our task as a reviewing court is to review ‘‘the trial record

as a whole.’’ In view of the exceedingly large number of

issues raised on appeal, we have reviewed all aspects of

this record. We conclude that there was no prejudicial

error on any issue raised by appellants, and that they re-

ceived the fair trial to which they are entitled. Accord-

ingly, we will affirm the judgments of conviction.

App. 50

APPENDIX

‘Taken verbatim from Appellants’ Briefs |

The Ammars’ Contentions

Whether the Court erred in denying Ghassan’s theory

of the case instruction.

Whether the Court below committed prejudicial error

in failing to charge, even though requested, that the

jury must find that the controlled substance which

was the subject matter of the conspiracy and impor-

tation charges was, in fact, heroin within the definition

of the Code of Federal Regulations before the jury

could convict the Defendant and whether the Court

committed prejudicial error in failing to submit a

charge on the lesser included offense set forth in

21 U.S.C. §841(b)(1)(A).

Whether it was error to deny the mmars’ Motion to

Sever and Request for Relief from Prejudicial Mis-

joinder under Rules 1+ and S(a) and (b) of the

Federal Rules of Criminal Procedure; whether it was

error to deny the Ammars’ Motion to Strike overt

acts numbered 50-56 from the indictment.

Whether the Court erred in permitting Judith to

testify as to confidential communications not in fur-

therance of any conspiracy between herself and Ghas-

san occurring after his arrest on August 1, 1980 and

in failing to grant the Ammars’ related Motions for

Severance.

Whether the trial Court committed prejudicial error

in failing to grant, even though requested, a hearing

pursuant to Rule 104 of the Federal Rules of Evidence

App. 51

and in accordance with the holding of United States

v. James, 590 F.2d 575 (Sth Cir. 1979) to determine

the admissibility of out of court statements made by

co-conspirators and then, thereafter, committed pre-

judicial error in failing to apply the proper standard

as to the admissibility of those statements.

Whether the trial Court erred in failing to fashion an

appropriate remedy after it was learned that the case

agent had destroyed his handvwyitten reports.

Whether the trial Court committed prejudicial error

in failing to suppress the evidence regarding Judith

Ammar'’s September 19, 1980 tape recorded confer-

ence with John Welkie when the D.E.A. obtained the

statement and specifics lly knew that ‘*(1) Welkie was

entering her home as a paid confidential informer

with a secret microphone; (2) that Judith Ammar

was represented by counsel and (3) that counsel had

specifically advised the Government, that other than

discussing the activities of the Ammar Trading Ser-

vice, she was standing on her Fifth Amendment right

to remain silent with respect to all questions regard-

ing her involvement in these drug activities.

Whether the Court below committed reversible error

in failing to allow proof, by way of expert testimony,

that critical statements attributed to Judith Ammar

in the September 19, 1980 tape recorded conversation

with John Welkie did not occur.

Whether the Court below committed prejudicial error

in failing to grant Judith Ammar’s Motion to Dismiss

the Grand Jury Indictment, or at the very least,

conduct a hearing out of the presence of the jury once

there was threshold evidence to establish that her

indictment was the product of false testimony of John

Welkie, a paid confidential informer for the D.E.A.

App. 52

II.

Stillman’s Contentions

Was the defendant denied a fair trial, due process of law

and his right to confrontation when the trial court took

the following actions with respect to the testimony of the

Government's critical witness:

Denied defendant access to statements of the witness

given to his probation officer and refused to examine

the statements in camera for impeachment material?

Quashed defendant's subpoena for letters written by

the witness?

Refused to permit defendant to question whether the

witness's plea bargain included an agreement not

to bring other charges?

Refused to permit defendant to question whether the

plea bargain included an agreement not to prosecute

for income tax evasion?

Refused to require the witness to submit to psycho-

logical examination to determine the exent of memory

impairment caused by heroin addiction?

Refused to grant use immunity to a co-defendant

whose testimony would contradict that of the witness

concerning the single directly incriminatory event?

Refused to permit cross-examination based upon in-

terview notes taken by a DEA agent?

Refused to allow inclusion of its right to a polygraph

examination upon demand in the witness's plea

bargain?

Denied defendant access to DEA files on the informer-

Witness, refused to examine their contents in camera

for impeachment material and other exculpatory evi-

App. 53

dence, and refused to seal them for transmittal to

this Court?

Upheld an assertion of ‘‘governmental privilege”’

against disclosure of the DEA file on the witness by

an Assistant United States Attorney?

Denied defendant access to interview notes of an As-

sistant United States Attorney of an interview im-

mediately before the witness changed his version to

an incriminatory one?

Refused to instruct the jury in accordance with the

testimony of an expert that the witness's addiction

to heroin might be considered in assessing his memory?

Was the defendant denied a fair trial, due process of law

and his right of confrontation when the trial court took

the following actions with respect to out-of-court decla-

rations of alleged conspirators:

Refused to conduct a pretrial hearing to determine

whether statement of an alleged conspirator were

admissible within Fed.R.Evid. 801(d)(2)(E)?

Refused to conduct a pretrial hearing to determine

whether statements of an alleged conspirator were

made in his role as government informer?

Refused to apply a preponderance of the evidence

standard in assessing the admissibility of statements

of alleged conspirators and instead applied a prima

facie standard?

Refused to exclude statements of alleged conspirators

which were narrative and not in furtherance of any

charged conspiracy?

Refused to exclude statements of alleged conspirators

which were made after the conspiracies charged had

terminated?

App. 54

Required the jury to determine whether statements

were in furtherance of a conspiracy and during its

pendency and refused to submit instructions which

defined these terms!

Refused to allow defendant to make an opening state-

ment before the introduction of evidence in which the

jury would be cautioned that out-of-court statements

by an alleged conspirator might have been made in his

role of undercover informer!

refused to exclude out-of-court statements which were

neither reliable, trustworthy nor corroborated !

Refused to instruct the jury that out-of-court state-

ments should be considered with caution!

Refused to exclude out-of-court declarations when

there was no evidence that the declarant had personal

knowledge of the facts asserted!

Refused to instruct the jury that out-of-court declara-

tions by an alleged conspirator were not evidence

against defendant if made while the declarant was

acting as an undercover informer and not as a con-

spirator?

Refused to allow evidence that the declarant of out-ot-

court se ay had previously been convicted of a

felony and ha@a bad heputation for truthfulness!

Instructed the jury. that it could not consider the

testimony of alleged conspirators in determining a

defendant's Tee if in the conspiracy!

Refused to instruct’ the jury that statements by an

alleged conspirator were conceded to be false?!

Allowed the jury to consider adoptive admissions of

an alleged conspirator ax statements in furtherance

of conspiracy !

App. 55

Refused to allow cross-examination of an alleged con-

spirator over privileged conversations with another

alleged conspirator !

Submitted to the jury the determination of which con-

versations of an alleged conspirator should be ex-

eluded as within the marital privilege!

Was the defendant denied a fair trial and due process of

Jaw when the trial court made the following rulings:

Admitted evidence of the non-testifying defendant's

four-year-old conviction for use of a telephone to fa-

cilitate the purchase of heroin on the theory that

both that offense and the instant conspiracies were

‘*identical’’ in the sense that a telephone was used in

the commission of both crimes!

Refused to conduct a hearing on whether the probative

value of defendant's prior conviction outweighed its

prejudicial effect !

Refused to allow defendant to testify to the circum-

stances of the prior conviction and his reasons for

entering an Alford plea to that charge without being

cross-examined on the merits of the case on trial?

Refused to grant a continuance to permit defendant

-to obtain.evidence which would contradict testimony

of a DEA agent who testified to the prior conviction

‘on the grounds that the testimony was collateral!

Refased to instruct the jury on the significance of -

multiple conspiracies and that it must acquit the de-

fendant if he was found to be a member only of a

conspiracy not charged in the indictment’!

Submitted an instruction which allowed the jury to

convict defendant for a conspiracy not charged in the

indictment !

App. 56

Held that where the Code of Federal Regulations

placed a limiting construction on a penal statute, the

defendant could be convicted if his conduct was within

the statute even though it was excluded by the Code!

Refused to submit an instruction which defined the

elements of the offense!

Refused to submit a lesser-included otfense when the

evidence demonstrated its existence and possible com-

mission!

Denied defendant's motion for mistrial after it had

informed the jury that a person to whom heroin was

delivered was an ‘‘agent’’ of defendant?

Instructed the jury that pleas of guilty by alleged

conspirators were not ‘‘necessarily’’ evidence of de-

fendant’s guilt!

Instructed the jury that evidence of a defendant's

prior conviction could be used in weighing his credi-

bility when the convicted defendant did not testify!

App. 57

United States v. Ghassan L, Ammar

Nos. 81-1745, 81-1746, 81-1865, 81-2064

Becker, Circuit Judge, concurring.

I join without reservation in all portions of Judge

Sloviter’s opinion except for Parts II.A.1. and ILA.2. In

Part II.A.1., Judge Sloviter follows our opinion in United

States v. Continental Group, Inc., 603 F.2d 444 (3d Cir.

1979), cert. denied, 444 U.S. 1032 (1980), and holds that

the district court was not required to hold an im liming

hearing to determine the sufficiency of nonhearsay evi-

dence (‘‘evidence aliunde’’) to establish a conspiracy and

connect a defendant to it. In Part II.A.2., also follow-

ing Continental Group, Judge Sloviter holds that the dis-

trict court was not required to make explicit its conclu-

sion that there was a preponderance of evidence aliunde

because that conclusion could be inferred from the court's

decision to submit the case to the jury.

These holdings relate to the trial judge's evidentiary

screening function, now codified in Fed. R. Evid, 104(a).

Rule 104(a) allocates the determination of preliminary

questions concerning the admissibility of evidence to the

court: Proper performance of that screening function is

essential to the fair conduct of conspiracy trials, especially

of complex, multi-count conspiracy indictments. Because

this panel is bound by our holding in Continental Group, I

concur in the result in Parts IL.A.1. and 11.4.2. I write

separately, however, to express my belief that the Con-

tinental Group rule sweeps too broadly. In my view, this

Court should no longer be content to infer a finding of

sufficient evidence alinnde from the district court's deci-

sion to submit the case to the jury, at least where that

finding requires the resolution of credibility questions.

Moreover, I believe that this Court should counsel the

district courts that im l/imine hearings, while not required,

are at least preferred in cases where the defendant wishes

App. 58

to attack the credibility of a witness whose credibility is

critical to the court’s evidentiary determination and the

circumstances of the trial itself (typically a multi-count,

multi-defendant conspiracy trial) impairs that strategy.

‘To understand the screening function of the trial judge,

it is helpful to refer to Judge Friendly’s opinion in L’nited

States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied,

397 U.S. 1028 (1970), which was adopted by this Court in

United States v. Bey, 437 F.2d 188 (3d Cir. 1971), and

its progeny, including Continental Group. Judge Friendly

started with the proposition established in a number of

opinions by Judge Learned Hand' ‘‘that it was for the

judge to determine whether there was sufficient evidence

that the defendant against whom |co-conspirator) declara-

tions were offered had engaged in a ‘concerted mutual

venture’ with the declarant,’’ /d. at 1119. Then, noting

that Judge Hand’s opinions left in doubt the quantum of

evidence that would suffice, Judge Friendly observed:

The circumstance that in a conspiracy trial the

preliminary issue on the admissibility of evidence

coincides with the ultimate one of the defendant’s

guilt should not cause the trial judge to abdicate his

traditional duty to decide those issues. of fact which

determine the applicability of a technical exclusion-

ary rule. When the matter is viewed from the stand-

point of the trial judge, it may be hard to say more

than that he must satisfy himself of the defendant’s

participation in a conspiracy on the basis of the

1 United States v. Dennis, 183 F.2d 201, 230-231 (2d Cir. 1950),

aff'd, 341 U.S. 494 (1951); United States v. Publiese, 153 F.2d

497, 500 (2d Cir. 1945) ; United States v. Nardone, 127 F.2d 521,

§23 (2d Cir.), cert. denied, 316 U.S. 698 (1942); United States

v. Renda, 56 F.2d 601, 602 (2d Cir. 1932) (per curiam) (attributed

to Judge Hand).

App. 09

non-hearsay evidence, . . . Setting the standard

that high avoids the risk that the requirement of in-

dependent evidence will be rendered ‘virtually

meaningless,’’ ax some courts are said to have done.

Id. at 1120 (citations omitted).

After observing that the practicalities of a conspiracy

trial might require hearsay to be admitted ‘*subject to

connection,”’ Judge Friendly announced the rule that we

have followed:

[T)he judge 1ymst determine, when all the evidence

is in, whether in his view the prosecution has proved

participation in the conspiracy, by the defendant

against whom the hearsay is offered, by a fair pre-

ponderance of the evidence independent of the hearsay

utterances. If it has, the utterances go to the jury

for them to consider along with all the other evidence

in determining whether they are convinced of defen-

dant's guilt beyond a reasonable doubt. If it has not,

the judge must instruct the jury to disregard the hear-

say or, when this was so large a proportion of the

proof as to render a cautionary instruction of doubt-

ful utility, ... declare a mistrial if the defendant asks

for it.

Id. (footnote omitted).

Thus, the Geaney/Continental Group rule imposes upon

the trial judge an evidentiary screening function that is

essential to the fairness of the trial. What is some-

times overlooked in the rule's formal recitation, however,

is that the preponderance finding differs from the prima

facie test it replaces:* The preponderance test requires

2 Only the Ninth Circuit even nominally retains the “prima facie”

standard of proof. Judge Weinstein notes that this standard makes

sense only in cases where the jury decides whether there is suffi-

cient evidence aliunde to admit co-conspirators’ statements into evi-

dence, while the court only makes the initial decision to let the

case’ go to the jury on the basis of a prima facie determination. |

(footnote continued )

App. 60

the judge to determine the credibility of witnesses and to

make a finding based on a fair assessment of the evidence,

whereas the credibility of witnesses need not be consid-

ered under the prima facie test. The Geaney/Continental

Group rule establishes that the court is to apply a pre-

ponderance test, rather than a reasonable doubt stand-

ard, in finding that a conspiracy exists and that a defend-

ant is connected to it. Judge Weinstein thinks that this

test is not stringent enough.’ This Court has eschewed a

(footnote continued )

Weinstein & Berger, Evidence § 104[05} at 104-55 (1982). How-

ever, the Ninth Circuit characterizes the standard as requiring the

government to adduce sufficient, substantial evidence aliunde of a

conspiracy and of the defendant's connection thereto. See United

States v. Perez, 658 F.2d 654 (9th Cir. 1981); United States v.

Zemek, 634 F.2d 1159 (9th Cir. 1980), cert. denied, 450 U.S. 916

The Fifth, Tenth and District of Columbia Circuits also require the

district court as a preliminary matter to find “substantial evidence”

of the existence of a conspiracy and the defendant's membership in

it. The Fifth and Tenth Circuits require in addition a preponder-

ance finding at the close of all testimony. Sce United States v.

James, 590 F.2d 575 (Sth Cit.) (em banc), cert. denied, 442 U.S.

917 (1979); United States v. Petersen, 611 F.2d 1313 (10th Cir.

1979), cert. denied, 447 U.S. 905 (1980) ; United States v. Jackson,

627 F.2d 1198 (D.C. Cir. 1980). The other circuits, including

this one, have adopted the fair preponderance of the evidence standard

for the district court's preliminary determination. See cases cited

* [T]he fair and practicable mtethod of providing protection to

the defendant without violating the letter or spirit of the Rules

lies in insisting on a stringent standard of proof... . Only

if the court is itself convinced to a high degree of probability—

considering hearsay as well as nonhearsay evidence—of the

conspiracy, defendant's membership, and that the statement

was made during the course of, and in furtherance thereof,

should it admit.

(footnote omitted ).

App. 61

reasonable doubt standard, and it has rejected Judge

Weinstein’s position (adopted only by the Sixth Circuit,

see United States v. Vinson, 606 F.2d 149 (6th Cir. 1979),

cert. denied, 444 U.S. 1074 (1980)) that the trial judge

should consider the hearsay testimony in making the

threshold determination. However, precisely the concerns

articulated by Judge Weinstein suggest that the prepond-

erance standard be applied rigorously, with explicit find-

ings by the district court both on the credibility of non-

hearsay witnesses and the sufficiency of the evidence.

My concern on this record is with the case against ap-

pellant Stillman. The critical evidence aliunde as to Still-

man’s participation in the conspiracy was the testimony

of Mr. Welkie, a co-conspirator turned government infor-

mant. It was Welkie who supplied the testimony about the

crucial transaction linking Stillman to the conspiracy (i.e.,

the meeting in July 1980 at the Detroit Hyatt Regency,

involving Ghassan, Dahabi, Welkie, Stillman, and an un-

identified man, where, according to Welkie, Stillman di-

rected him to give a package containing heroin to the un-

identified man).

Stillman mounted a considerable attack on Welkie’s

credibility. He attempted to establish that Welkie had

used more than two grams of heroin before and during the

meeting at the Hyatt. He a’se attempted to show that

Welkie had given fatally inconsistent statements about

that meeting, having asserted in his statement to Agent

Schmotzer that it had been Ghassan, not Stillman, who

had directed that the package be given to the unidentified

man. Stillman sought to attack Welkie’s credibility on

other grounds as well.‘ The district court excluded much

*Welkie had also given a statement to his probation officer.

Stillman moved for its production pursuant to 18 U.S.C. § 3500

(footnote continued )

Ap). 62

of the proffered impeachment. And yet, despite the cen-

trality of Welkie’s credibility to the preponderance deter-

(footnote continued )

(1976) (governing the production by the government of statements

of its witnesses) as evidence tending to impeach Welkie. The dis-

trict court held the statement “not discoverable in any event. That

is a private paper prepared for the use of the Court.” According

to Stillman, the district court was required at least to compare

Welkie’s statement to his probation officer with his trial testimony,

see United States v. Cyphers, 553 F.2d 1064, 1068-69 (7th Cir.),

cert. denied, 434 U.S. 843 (1977); United States v. Figurski, 545

F.2d 389, 391-92 (4th Cir. 1976). Stillman also sought to learn

whether the DEA informant file on Welkie contained other versions

of the event. The court quashed defendant's subpoenas of that file

and refused to examine it in camera or to seal it for transmittal to

this Court.

Only portions of Schmotzer’s interrogation of Welkie on August

27 were tape recorded. During the cross-examination of Welkie.

Stillman sought to obtain Schmotzer’s notes of the unrecorded por-

tions of the interview. The court held that the notes were not

Welkie’s “statements” under 18 U.S.C. §3500 and ordered them

sealed until after Schmotzer testified. The notes were then fur-

nished to counsel, but when Welkie was recalled for further cross-

examination, the court refused to allow counsel to question him

based on the notes.

Welkie also had written to his girlfriend, Judith Barlow, prior to

his being released on bail. The government called Barlow as a

witness, and Stillman subpoenaed Welkie's letters to her. The Court

perceived the subpoena as invading Barlow's privacy, examined the

letters in camera, and then permitted counsel to see only two small

segments of the letters, quashing Stillman’s subpoena as to the

balance.

Welkie stated that during the period about which he was testi-

fying, he was a heavy user of heroin and also used angel dust.

Stillman’s expert testified that the use of these drugs could impair

perception and memory and that angel dust could cause major per-

petual distortions. Stillman then moved to have Welkie examined

by any qualified person concerning the effect of these drugs on his

memory and perception. The court apparently misperceived the

. thrust of Stillman's argument and denied the motion as one that

questioned Welkie's competence as a witness.

App. 63

mination, the district court made no explicit credibility

findings.

It seems to me that the district court misapprehended

the scope of its screening responsibilities. The majority

concedes that ‘‘cross-examination of Welkie was limited

in some respects’? but asserts that ‘‘any additional cross-

examination by Stillman would have been merely cumula-

tive.’’ Ante. I am doubtful of that proposition, see supra

note 4, but more important, it is unclear that the district

court assessed Welkie’s credibility on the evidence pre-

sented. The majority refuses to ‘‘assume that the [dis-

trict] court ignored a portion of the evidence before it

simply because its ultimate determination was unfavorable

to the appellant.’’ Ante. In my view, this Court should not

be forced to infer from an ultimate conclusion that the

district court properly considered evidence in performing

its screening function. I would modify Continental Group

to require explicit findings, at least where credibility is

important to the evidence aliunde determination. We do

not permit implied findings in bench trials under Fed. R.

Civ. P. 52(a), and there is no reason for a different rule

for a critical phase of a criminal case, as the preponder-

ance determination under Rule 104(a) clearly is.

II.

I turn to the procedural setting in which the credibility

issues must be tested. If, as the preponderance test re-

quires, evidentiary findings are to be made rationally and

fairly in cases where credibility is at issue, the judge must

allow adequate opportunity for impeachment of the per-

sons or documents supplying evidence aliunde. And yet

in a multi-count, multi-defendant conspiracy trial, with a

jury in the box, the circumstances may not permit that

opportunity. 1 recognize that Judge Sloviter, either in

the text of her opinion or by her disposition of the myriad

claims alleged by Stillman and catalogued in the opinion’s

Ap). 64

appendix, has rejected the contention that the district

court erred in excluding the proffered impeachment evi-

dence. I

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