Petition — Lisotto v. United States

+ Supreme Court, U.S

ED

United States Supreme C uri © ** 1984

OCTOBER 1983 TERM =| atexanoer v —

CLERK

OLTRADO MICHAELANGELO LISOTTO,

Petitioner (Appellant Below)

Vv.

UNITED STATES OF AMERICA,

Respondent (Appellee Below)

JOHN JAMES PELLA,

Petitioner (Appellant Below)

Vv.

UNITED STATES OF AMERICA,

Respondent (Appellee Below)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STANLEY E. PREISER

(Counsel of Record)

SHERRI GOODMAN DUSIC

Preiser & Wilson, L.C.

1012 Kanawha Boulevard, E.

Post Office Box 2506

Charleston, WV 25329

(304) 344-9651

Counsel for Petitioner,

John James Pella

WILLIAM B. CUMMINGS

_ Counsel for Petitioner

Oltrado Michaelangelo Lisotto

——————————

(i)

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Government established by independent

evidence that Petitioners participated in a conspiracy.

2. Whether admission of the coconspirators’ statements

violated Petitioners’ Sixth Amendment Right of Confron-

tation.

3. Whether there existed sufficient evidence to establish

beyond a reasonable doubt Petitioners’ knowing participa-

tion in a conspiracy.

4. Whether the erroneous admission of the airline ticket

evidence was so prejudicial as to require a mistrial.

5. Whether the Petitioners were entitled to sever their

trials when the two codefendants who were the chief co-

conspirators were tried in absentia.

6. Whether the District Court sentenced Petitioner

Pella based upon inaccurate and unreliable information

contained in the presentence report.

PARTIES

The only parties to this action are those named in the

case caption, Oltrado Michaelangelo Lisotto and John

James Pella (Petitioners, Appellants Below), and the

United States of America (Respondent, Appellee Below).

(iii)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES ...............--200005

OPINIONS IN COURTS BELOW ................5:

GROUNDS OF JURISDICTION ...............005:

CONSTITUTIONAL PROVISIONS AND STATUTES

Judgment, United States Court of Appeals

rn ccs cece yacdidsocone conned

Opinion, United States Court of Appeals

EE Li bcnabececchbiccoseseces

Order Denying Petition for Rehearing, United States

Court of Appeals for the Fourth Circuit ..........

(iv)

TABLE OF AUTHORITIES

Cases: Page

Dolan v. United States,

nr, CD ics scccebudueseesstedssemeuaene 17

Dutton v. Evans,

is. .'004 ch406 0a sce ctoseoseenteecan 12,13

Glasser v. United States

ne << Jib os wéneeratosssseheewes ane 7,15

Joyner v. United States,

f & }), | le % yy, en or 11

Ohio v. Roberts,

rg oe Se eas cee b eeaeae en 12,14

Ottomano v. United States,

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

EE Cocco vac anbedbaces es ekcabianaeenel 14

Townsend v. Burke,

Ee i i. oun ek tad once ubaee aaa 21

United States v. Ammar,

714 F.2d 238 (3d Cir.), cert. denied,

ee ae ee ee eee kb ee ene Re Gen aen 14

United States v. Bell,

oss caida cles 06e¥ebsneeunen 17

United States v. Benavides,

oc gc oc os teow aneoesaseceueeene 20

United States v. Brown,

eC, PED «occ ccccccsnccecedouesseeeseue 13

United States v. Cianchetti,

i Mn. 3. wc tains cinee 0.beeeéeeemenie 15,20

United States v. Dockins,

I: CED sn sc cuiknicdene aes veneeennawune 9,11

(v)

United States v. Dominguez,

604 F.2d 304, (4th Cir. 1979), cert. denied,

IN as ova ccsVicdbaccesscocecasseseadetess

United States v. Dunn, ,

Es AOTED cc cctscccenccdtecseccovccesness

United States v. Falcone,

onc a ach bb coke cuveeteueneednvesebuncebe

United States v. Fatico,

$79 F.2d 707, (2d Cir. 1978), affd. after remand,

603 F.2d 1053 (1979), cert. denied, 444 U.S.

DT StL tees eke cdabensecetbveesvonceeee coveceet

United States v. Gibbs,

ER EL soc pecccceecesecbsotuvechebsus

United States v. Grassi,

616 F.2d 1295, (Sth Cir.), cert. denied,

oan oo nb eb eboctcccess sasacteeteongsact

United States v. Greene,

A TEs BEEED ccc cc vcccccccwcenssousascoces

United States v. Gresko,

632 F.2d 128, (4th Cir. 1980) 21.6... 6c cece ence e eee eeeeeees

United States v. Howard-Arias,

679 F.2d 363, (4th Cir. 1982), cert. denied,

es ale cencSibbbosstsénsetavie

United States v. Laughman,

618 F.2d 1067, (4th Cir.), cert. denied,

BOT U.S. FAS (IGS)... crcccccccccccccccccccccccccsccees 7,13

United States v. Lee,

$40 F.2d 1205, (4th Cir.), cert. denied,

i ooo octets cacesetesbbeeesaucaseannn\e

(vi)

United States v. Lobo,

516 F.2d 883 (2d Cir.), cert. denied,

a cn ok os busin cea seauierall 20

United States v. Lurz,

666 F.2d 69, 81 (4th Cir. 1981), cert. denied,

CE al io ole cag verneeesics ceesdueent 14

United States v. Mardian,

a ee . os ccacnbecesdecesesees 18

United States v. McCormick,

565 F.2d 286 (4th Cir. 1977), cert. denied,

ee a. wc waccesecoucseebed 11

United States v. McManus,

$60 F.2d 747, 750 (6th Cir. 1977), cert. denied,

ae es eunioeedbetenéakuel 14

United States v. Nixon,

re ne occ cucesavesceetacesssueane 11

United States v. Papia,

ED, PEREGO: BOUED oc cccicccccwvccsecsces 14

United States v. Perez,

658 F.2d 654, 660 & n. $ (9th Cir. 1981) .. 2... cece 14

United States v. Peterson,

§24 F.2d 167 (4th Cir. 1975), cert. denied,

RE a SL I ee ee 20

United States v. Prince,

515 F.2d 564, 567 (Sth Cir.), cert. denied,

ee in canoe kes et eaeeeteawel 14, 15

United States v. Sampoi,

SUED ccccccccrcccesvecccdasece 18

(vii)

Page

United States v. Seni,

662 F.2d 277 (4th Cir. 1981), cert. denied, .

Ee a SE 7,11

United States v. Shuford,

| ee 18

United States v. Singer,

660 F.2d 1295, 1307 (8th Cir. 1981), cert. denied,

ss steak odkeebseedeoseédescencce 14

United States v. Stratton,

I EE, BOED cc ccccccccccccceccecceseeccces 19

United States v. Stroupe,

$38 F.2d 1063, 1065 (4th Cir. 1976) ... 2.0... cc ccc ce eee ee 15

United States v. Wright, eal

$88 F.2d 31, 37-38 (2d Cir. 1978), cert. denied,

2 ts os. ewe wes cecbeteceevosoesbne 14

Statutes and Rules:

Constitution of the United States:

ae 2... sce ad deececsweenbeesenel 2

i. oe econo eetesiesectebecenes 3,14

Federal Rules of Evidence

kia. ce ech i anes dueendeébeseceadenns 7,14

aa ine Os een ocebbenuceeveeteeneecdece 16

re hes cle wisn noes enunesesedbwcbuccebeu 16

, . 1... cits dase'euckhe tre teccenenees 17

Pe in MN CO IOLSD . occ cccceccecosccccecevecetee 16

tel sic ccgeehsesadecnonbe 3

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SE EES dbveedesccesceevsesbactnnt eaviteaseael 3

IN THE

United States Supreme Court

OCTOBER 1983 TERM

No.

OLTRADO MICHAELANGELO LISOTTO,

Petitioner (Appellant Below)

Vv.

UNITED STATES OF AMERICA,

Respondent (Appellee Below)

JOHN JAMES PELLA,

Petitioner (Appellant Below)

Vv.

UNITED STATES OF AMERICA,

Respondent (Appellee Below)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

OPINIONS IN COURTS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit in this case has been published in of-

ficial form and is reproduced in the Appendix to this peti-

tion. United States of America v. Oltrado Michaelangelo

Lisotto, No. 82-5329, United States of America v. John

James Pella, No. 82-5333, 722 F.2d 85 (4th Cir. 1983).

2

GROUNDS OF JURISDICTION

The judgment of the United States Court of Appeals for

the Fourth Circuit was dated and entered on the Ist day of

December, 1983. A motion for rehearing was denied on

the 28th day of December, 1983.

This Court has subject matter jurisdiction pursuant to 28

U.S.C. Section 1254 to review the judgment by writ of

certiorari granted upon timely petition of a party (here,

Oltrado Michaelangelo Lisotto and John James Pella,

Appellants Below).

The judgment of the United States Court of Appeals for

the Fourth Circuit is final with respect to the issues pre-

sented in this petition. The appellate court’s judgment is

ripe for review at this time.

CONSTITUTIONAL PROVISIONS

CONSTITUTION OF THE UNITED STATES,

AMENDMENT V

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

wise infamous crime, unless on a presentment of indict-

ment of a Grand Jury, except in cases arising in the land or

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

time of War or public danger; nor shall any person be sub-

ject for the same offense to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensa-

tion.

3

CONSTITUTION OF THE UNITED STATES,

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the

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

the State and district wherein the crime shall have been

committed, which district shall have been previously ascer-

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

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defense.

STATEMENT OF THE CASE

Petitioners John James Pella and Oltrado Michael-

angelo Lisotto were indicted on July 27, 1982, on three

counts: conspiracy to distribute marijuana in violation

of 21 U.S.C. § 841(a)(1); interstate travel to pro-

mote illegal activity in violation of the Travel Act, 18

U.S.C. § 844(a). Also indicted were codefendants

U.S.C. Section 844(a). Also indicted were codefendants

Jerry Dennis Bishop and Jerry Shocket. A jury trial was

held on October 13, 14 and 15, 1982, before The Honor-

able J. Calvitt Clarke, Jr. in the United States District

Court for the Eastern District of Virginia, Norfolk Divi-

sion. Mr. Bishop and Mr. Schocket were tried in absentia.

The court entered a judgment of acquittal on the cocaine

possession count for Mr. Pella and Mr. Lisotto. The jury

acquitted the Petitioners on the Travel Act count and con-

victed them on the conspiracy to distribute marijuana

charge. Mr. Bishop and Mr. Schocket were convicted of

all three charges. On November 23, 1982, the court sen-

tenced Mr. Pella to twelve years in prison and Mr. Lisotto

to four years under the enhancement provision of 21

U.S.C. § 841(b)(6) involving quantities of marijuana in

excess of 1,000 pounds.

The evidence presented at trial established that in early

July of 1982, an informant for the Drug Enforcement

Agency, Jack Rakar, met with Mr. Bishop in Seattle,

Washington and Miami, Florida to discuss the transporta-

tion of marijuana by Mr. Rakar, a pilot. Acting upon in-

structions from government agents, Mr. Rakar phoned

Mr. Bishop on July 14, 1982 and informed him that a load

of marijuana was being flown into the country. Mr. Bis-

hop expressed interest in buying the marijuana, and the

two arranged a meeting in Norfolk, Virginia. On July 17,

1982, Mr. Rakar picked up Mr. Bishop at the Norfolk air-

port and drove him to Horne’s Coliseum Inn in nearby

Hampton. Posing as the marijuana importer and seller,

Special Agent James of the Drug Enforcement Agency

called Mr. Bishop the next day to negotiate a sale of mari-

juana. On July 19, 1982, Agent James and Agent Guten-

sohn met with Mr. Bishop at the Coliseum Inn restaurant,

and they agreed to sell 2,700 pounds of marijuana to Mr.

Bishop for $370,000.

At Mr. Bishop’s request, Mr. Rakar drove to the Shera-

ton Inn in Norfolk to pick up Mr. Schocket and bring him

back to Mr. Bishop’s hotel room on July 19, 1982. Mr.

Schocket then went downstairs to meet the agents. Agents

James and Gutensohn drove Mr. Schocket to Portsmouth,

Virginia to show him the truckload of marijuana sup-

posedly for sale. Mr. Schocket expressed interest in pur-

chasing the entire load which consisted of 4,600 pounds.

On the way back to the Coliseum Inn, Mr. Schocket told

the agents that the money to purchase the marijuana

would come from Pittsburgh and that he would call “his

people” to make the financial arrangements.

The telephone toll records for Mr. Bishop’s hotel room

established that on July 19, 1982, between approximately

3:15 p.m. and 9:20 p.m., 19 long distance calls were

placed. Two of the calls were to Mr. Pella’s residence in

Pittsburgh, each of a brief duration. A third call was

placed to an unknown telephone number in Pittsburgh.

Sixteen other calls were made to the Seattle area, the

Miami area, the Los Angeles area and to the Norfolk/

Richmond area. During Mr. Bishop’s stay at the Coliseum

Inn, other long distance calls were made from his

telephone, but none were to the Pittsburgh area.

On the morning of July 20, 1982, Agent Gutensohn

called Mr. Bishop who told him that the money to pur-

chase the marijuana would arrive in Norfolk that after-

noon. Surveillance by government agents at the Pittsburgh

and Norfolk airports established that Mr. Pella and Mr.

Lisotto flew from Pittsburgh to Norfolk at 12:30 p.m. the

same day. Mr. Pella carried a shoulder bag. Upon arrival

in Norfolk, they went to the Sheraton Inn where Mr.

Schocket was staying. At 3:40 p.m., Mr. Bishop called the

informant, Mr. Rakar, to discuss flying 1,000 pounds of

marijuana to Pittsburgh. Mr. Bishop mentioned that one

of the people from Pittsburgh was a pilot who would ac-

company Mr. Rakar.

In the late afternoon on July 20, 1982, Agents James

and Gutensohn went to the Sheraton Inn lounge to finalize

the transaction. They saw Mr. Lisotto in the lounge talk-

ing with a woman. He was joined by Mr. Pella, and they

sat at a table near the entranceway. At some point Messrs.

Pella and Lisotto left the lounge, but there was no

evidence concerning when they departed.

After the government agents had been sitting in the

lounge for a while, Agent Gutensohn walked into the

6

lobby, saw Mr. Bishop approaching and waved to him.

They went into the lounge together. Mr. Bishop told the

agents that the money had arrived and they agreed upon

the terms of the transaction: 4,600 pounds of marijuana

for $609,000. Mr. Bishop explained that he was going to

return to Mr. Schocket’s hotel room to freebase cocaine

and that Mr. Schocket would bring down the money.

Mr. Schocket then came into the lounge with a brown

paper bag. Inside was $59,000 in a plastic bag from a local

clothing store. When Mr. Schocket went with Agent Gu-

tensohn into the men’s room to transfer the money, Mr.

Schocket was arrested. Local police officers immediately

proceeded to Mr. Schocket’s hotel room and there arrested

Messrs. Bishop, Pella and Lisotto.

In Mr. Bishop’s portfolio were two slips of paper con-

taining various names and flight information, including

Mr. Pella’s home telephone number. A piece of paper

found on Mr. Pella contained the hotel telephone numbers

for Messrs. Bishop and Schocket. Mr. Lisotto had his

pilot’s license and a piece of paper with information on the

Pittsburgh to Norfolk flight, the hotel telephone number

of Mr. Bishop and the names Frank and Harry List.

During the trial, a government agent testified that after

Messrs. Pella and Lisotto boarded the plane in Pittsburgh

he asked the airline employee who collected the tickets for

copies of the tickets given by Petitioners, whom he de-

scribed to the employee. The agent further testified that

the tickets had been issued in the names of F. List and H.

List, although the government did not introduce the tick-

ets themselves. The district court subsequently struck the

evidence but refused to grant a mistrial.

-

ARGUMENT

ISSUE I

It is well-settled that coconspirators’ out-of-court state-

ments are admissible under Rule 801(d)(2)(E) of the Fed-

eral Rules of Evidence only if the government establishes

that a conspiracy existed and that the defendant parti-

cipated in the conspiracy by a fair preponderance of in-

dependent, nonhearsay evidence. United States v. Gresko,

632 F.2d 128, 1131 (4th Cir. 1980). The courts have

stressed that the independent evidence cannot include out-

of-court statements by the alleged coconspirators;

“[o]therwise hearsay would lift itself by its own bootstraps

to the level of competent evidence.” /bid., citing Glasser v.

United States, 315 U.S. 60, 74-75 (1942).

Petitioners did not challenge on appeal the district

court’s finding that a conspiracy between Mr. Bishop and

Mr. Schocket existed. But this concession did not relieve

the government of its burden to prove Petitioners had

knowledge of the conspiracy’s purpose and participated in

it, United States v. Laughman, 618 F.2d 1067, 1076 (4th

Cir.), cert. denied, 447 U.S. 925 (1980). The extent of Peti-

tioners’ participation may be slight, United States v. Seni,

455 U.S. 950 (1982), but the government must still prove

that participation by a fair preponderance of evidence to

the judge (and beyond a reasonable doubt to the jury).

United States v. Laughman, supra, at 1076, citing United

States v. Dunn, 564 F.2d 348, 356-57 (9th Cir. 1977). In

this case, the government alleged that Petitioners know-

ingly participated by bringing the money from Pittsburgh

to Norfolk, but could not prove it by independent evi-

dence at any point in the trial.

The Fourth Circuit listed the following as independent

evidence sufficient to permit the government to introduce

8

coconspirators’ statements and sufficient to sustain Peti-

tioners’ convictions: (1) The record indicated that Mr.

Bishop did not have the money to buy the marijuana when

he first offered to purchase it; (2) Two phone calls were

then made from Mr. Bishop’s hotel room to Mr. Pella’s

home telephone number in Pittsburgh; (3) Within hours of

these calls Petitioners traveled from Pittsburgh to Mr.

Schocket’s hotel; (4) The money was delivered on the af-

ternoon of Petitioners’ arrival; (5) Both were within sight

of Mr. Bishop’s and the government agents’ final negotia-

tions for the drugs; (6) Petitioners were arrested in Mr.

Schocket’s room immediately following the drug transac-

tion; (7) The papers seized from Petitioners linked them to

Messrs. Bishop and Schocket.

This list of independent evidence, which is the founda-

tion for the Fourth Circuit’s affirmance of Petitioners’

convictions, suffers from two weaknesses: the court drew

unwarranted inferences from the evidence concerning Pe-

titioners’ presence in the hotel lounge and concerning

when Messrs. Bishop and Schocket obtained the purchase

money, and the court failed to examine other evidence

within the context of the complete record.

There was absolutely no testimony at trial that Peti-

tioners were in sight of the negotiations conducted in the

hotel lounge between Mr. Bishop and the agents. The gov-

ernment made no effort to put the events occurring in the

lounge in any proper time sequence. The agents never tes-

tified when they saw Petitioners in the lounge in relation to

Mr. Bishop’s or Mr. Schocket’s activities.' The issue is an

'In the Fourth Circuit opinion, the court assumed in its recital of

facts that Petitioners followed Mr. Bishop back to the hotel room

after he had concluded the negotiations with the agents. The assump-

tion has no evidentiary basis from the record and formed one basis for

the petition for rehearing.

9

important one in light of cases affirming convictions for

distributing controlled substances based upon evidence

that the defendant monitored or watched the drug transac-

tion from a distance. See, e.g., United States v. Dockins,

659 F.2d 15 (4th Cir. 1981) (defendant conversed in the

lobby of a hotel with a codefendant while the sale of drugs

was being conducted in a hotel room where the codefend-

ant gestured towards the hotel room during the conversa-

tion).

Concerning when and how Messrs. Bishop and Schoc-

ket obtained the $59,100, although they may have told the

agents they did not have the money on July 19, 1982, no

evidence independent of these out-of-court statements

established this fact. Even though the agents did not see

the money until the folllowing day, July 20, 1982, no one

could testify that Mr. Bishop or Mr. Schocket did not have

the money before the Petitioners arrived. The agents had

not conducted any type of search to establish that there

was no money in their rooms, and Agent James conceded

that it was “very normal” for drug purchasers to conceal

the true source of their purchase money to avoid being

robbed.

The remaining independent evidence relied upon by the

Fourth Circuit reflected nothing more than association by

Petitioners with the conspirators, Messrs. Bishop and

Schocket, and mere presence is insufficient to establish by

a preponderance of evidence that Petitioners participated

in the drug conspiracy. United States v. Dominguez, 604

F.2d 304, 309 (4th Cir. 1979), cert. denied, 444 U.S. 1014

(1980). Someone from Mr. Bishop’s room called Mr. Pel-

la’s residence twice and another Pittsburgh number once.

The calls were brief and their importance dwarfed by the

number of other long-distance calls made during the same

time period (36 before the money appeared). These calls

10

were not recorded, so even assuming that Mr. Pella spoke

with Mr. Schocket or Mr. Bishop, there is no evidence that

arrangements were made for money to be obtained. Peti-

tioners flew from Pittsburgh to Norfolk, and Mr. Pella

carried a shoulder bag. There is nothing to indicate that he

concealed money inside. The money brought by Mr.

Schocket was in a plastic bag from a local Virginia

clothing store, and no fingerprints were found on the bag

or the money. Mr. Pella and Mr. Lisotto visited the hotel

lounge and then were found in Mr. Schocket’s room at the

time of the arrest. But there was no evidence that Peti-

tioners saw or knew about the money. No empty shoulder

bag like the one Mr. Pella had carried was found in the

room.

The documentary evidence introduced simply corrobo-

rated the fact that Petitioners had arranged to visit Mr.

Schocket and Mr. Bishop in Norfolk. Mr. Bishop’s port-

folio contained paper with Mr. Pella’s telephone number.

However, that piece of paper and other papers in the port-

folio contained other names, flight information, names

and clothing descriptions, none of which implicated Mr.

Pella or Mr. Lisotto. The papers could easily support an

inference that someone else brought the money, if Mr.

Bishop and Mr. Schocket didn’t already have it with them.

The slip of paper found on Mr. Pella had written on it Mr.

Bishop’s and Mr. Schocket’s telephone numbers. Mr. Li-

sotto’s paper contained Mr. Bishop’s phone number and

flight information on the Pittsburgh/Norfolk flight. None

of the papers pertained to the $59,100 Petitioners are ac-

cused of transporting.

Where the Fourth Circuit has upheld the admission of

coconspirators’ statements in other cases, the evidence

showed a much greater degree of complicity than in the in-

stant case, such as actual contact with the drugs, con-

ferences with a coconspirator immediately prior to a sale

or actual participation in drug negotiations. See, e.g.,

United States v. Seni, 662 F.2d 277 (4th Cir. 1981), cert.

denied, 455 U.S. 950 (1982) (defendants driving vans

which contained marijuana residue, heading towards a

marina where the unloading of marijuana was taking

place, and giving implausible explanations to the police

about the destination when stopped at a roadblock);

United States v. Dockins, 659 F.2d 15 (4th Cir. 1981)

(seller of cocaine stopped by defendant’s house on the way

to the sale; defendant followed seller to a hotel, both pull-

ing off the road en route to confer; defendant waited in

lobby, talking with another conspirator who pointed to a

hotel room where the transaction was taking place);

United States v. McCormick, 565 F.2d 286 (4th Cir. 1977),

cert. denied, 434 U.S. 1021 (1978) (procurer of drugs met

with defendant in car for ten minutes before procurer sold

agent the drugs on two separate occasions; each time, pro-

curer was seen handling something while in the car); and

Joyner v. United States, 547 F.2d 1199 (4th Cir. 1977)

(defendant arrived at transaction site with drug carrier and

participated in negotiations).

The government failed to meet its burden of producing

“substantial, independent evidence, at least enough to take

the question to the jury,” United States v. Nixon, 418 U.S.

683, 701 n. 14 (1974). Petitioners were entitled to a di-

rected verdict of acquittal and their convictions should

have been reversed by the Fourth Circuit.

12

ISSUE II

This Court, in Dutton v. Evans, 400 U.S. 74, 86 (1970).,

held that before the government may introduce hearsay

statements made by a coconspirator, it must demonstrate

the unavailability of the declarant and some indicia of

reliability of the statements. This Court listed four factors

relevant to assessing the reliability of the hearsay state-

ments:

(1) whether the declaration contained assertions

of pas: fact;

(2) whether the declarant had personal knowl-

edge 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

statements were made provided reason to believe

that the declarant had misrepresented the de-

fendant’s involvement in the crime.

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

The Fourth Circuit held that the statements by Messrs.

Bishop and Schocket contained indicia of reliability be-

cause they were against penal interest and further estab-

lished the speakers’ complicity in the conspiracy. The

record established that Messrs. Bishop and Shocket had

already implicated themselves thoroughly as coconspira-

tors to the agents before they mentioned other participants

in Pittsburgh. The inclusion of two more conspirators in

their ring did not subject them to further risk of criminal

penalty.

13

The Fourth Circuit failed to consider the fourth factor

listed by this Court in Dutton v. Evans, supra, and

recognized by other courts in criminal conspiracy cases:

Alleged coconspirators often have motives to misrepresent

the participation of another person. In United States v.

Gibbs, 703 F.2d 683 (3d Cir. 1983), the court suggested

that a conspirator, Quintiliano, may have lied about the

defendant’s involvement in a marijuna conspiracy in order

to reassure other coconspirators that plans were pro-

ceeding smoothly. 703 F.2d at 693. Quintiliano may have

also misrepresented that the defendant was an interested

purchaser of marijuana to exact better terms from other

prospective purchasers. bid.

Similar considerations were present in this case. Messrs.

Bishop and Schocket had several motives for lying about

Petitioners’ involvement in their scheme: (1) to conceal

their real source of funding; (2) to guard against having

their money stolen from their hotel room, a common prac-

tice as conceded by Agent James at trial; or (3) to create

the impression they had widespread connections with

which to market the large amount of marijuana they

wanted to buy from the agents to assure the agents they

could pay the balance of the purchase price. Messrs.

Bishop and Schocket may have simply been overconfident

that Petitioners would agree to participate in transporting

the marijuana after coming to Norfolk to discuss the pro-

position.

Recalling that the statements made by Messrs. Bishop

and Schocket were not corroborated nor made in Peti-

tioners’ presence, see United States v. Brown, 667 F.2d

566, 568 (6th Cir. 1982), the Fourth Circuit’s holding that

the admission of these statements did not violate Peti-

>

i4

tioners’ Sixth Amendment right of confrontation should

be reversed.?

ISSUE Ill

To sustain Petitioners’ convictions, the government was

required to prove beyond a reasonable doubt that Mr.

Pella and Mr. Lisotto had knowledge of the conspiracy’s

purpose and some action indicating their participation.

United States v. Laughman, supra, 618 F.2d at 1078. And

it is an axiom that association with the conspirators does

not transform a person into a conspirator even if he knows

of the conspiracy. United States v. Grassi, 616 F.2d 1295,

1301 (Sth Cir.), cert. denied, 449 U.S. 956 (1980), citing

United States v. Falcone, 311 U.S. 205 (1940). The proof

must be individual and personal. United States v. Prince,

?The Fourth Circuit decided this issue without addressing a

threshold issue: whether a coconspirator’ statement admissible under

Rule 801(d) (2) (E) of the Federal Rules of Evidence is automatically

considered to be reliable under the Confrontation Clause. See, e.g.,

Ohio v. Roberts, 448 U.S. 56, 66 (1980). The circuits have split on this

issue. The Third, Ninth, Second and Eighth Circuits make a separate

determination under the Confrontation Clause of the reliability of

coconspirators’ statements already admissible under the Federal Rules

of Evidence. United States v. Ammar, 714 F.2d 238 (3d Cir.), cert.

denied, 104 S.Ct. 344 (1983); United States v. Perez, 658 F.2d 654, 660

& n. 5 (9th Cir. 1981); United States v. Wright, $88 F.2d 31, 37-38 (2d

Cir. 1978); cert. denied, 440 U.S. 917 (1979); United States v. Singer,

660 F.2d 1295, 1307 (8th Cir. 1981), cert. denied, 454 U.S. 1156 (1982)

(case-by-case analysis). The Seventh, First, Sixth and Fifth Circuits

render no separate determination, holding that Confrontation Clause

concerns of reliability are satisfied if a coconspirator’s statement is ad-

missible under the rules. United States v. Papia, $60 F.2d 827, 836 n. 3

(7th Cir. 1977); Ottomano v. United States, 468 F.2d 269, 273 (ist Cir.

1972), cert. denied, 409 U.S. 1128 (1973); United States v. McManus,

$60 F.2d 747, 750 (6th Cir. 1977), cert. denied, 434 U.S. 1047 (1978).

The Fourth Circuit followed the latter interpretation in United States

v. Lurz, 666 F.2d 69, 81 (4th cir. 1981), cert. denied, 455 U.S. 1005

(1982).

15

515 F.2d 564, 567 (Sh Cir.), cert. denied, 423 U.S. 1032

(1975). Examining the evidence in the light most favorable

to the government, Glasser v. United States, 315 U.S. 60

(1942), the circumstantial evidence did not show Peti-

tioners’ knowledge and participation even with the cocon-

spirators’ statements. The small increment in probative

evidence gained from the statements of Mr. Bishop and

Mr. Schocket did not rise to the higher directed verdict

standard. There is still no evidence that Petitioners

brought money from Pittsburgh. Mr. Schocket and Mr.

Bishop may have led the agents to believe the money was

arriving from Pittsburgh, but as Agent James conceded,

purchasers often give misinformation to protect them-

selves. The Fourth Circuit recognized this problem of rely-

ing upon conspirators’ statements in drug transactions in

United States v. Stroupe, 538 F.2d 1063, 1065 (4th Cir.

1976).

Mr. Schocket also may have wanted Petitioners to help

transport and store the marijuana in Pittsburgh as he in-

dicated to the agents, but those statements alone do not

permit an inference that Petitioners agreed to help. Even if

they had come down to discuss the proposition with Mr.

Schocket and Mr. Bishop (but no evidence to that effect

exists), no evidence indicated they had agreed. See United

States v. Cianchetti, 315 F.2d 584, 588 (2d Cir. 1963)

(defendant discussed possibility of entering drug distribu-

tion conspiracy but declined due to deportation prob-

lems). Mr. Lisotto and Mr. Pella did not fly in to Norfolk

until 2:50 p.m. and were arrested shortly after arriving at

the hotel.

The statements also do not have any indicia of reliabili-

ty. They were not made in the presence of Petitioners.

They were vague references to Pittsburgh and “my

people”. Although Mr. Bishop and Mr. Schocket were very

16

candid to the agents about their relationship with each

other, they never mentioned Mr. Pella or Mr. Lisotto by

name.

Therefore, the Fourth Circuit’s holding finding suffi-

cient evidence to sustain Petitioners’ convictions is er-

roneous and should be reversed.

ISSUE IV

The government attempted to prove that Petitioners

traveled to Norfolk using aliases by having a government

agent testify that he looked at two tickets given to him by

an airline employee and that those tickets had F. List and

H. List printed on them. The agent’s testimony, admitted

over strenuous objection by Petitioners, violated Federal

Rules of Evidence 1002 and 1003 which require that the

contents of a writing must be proved by the original writ-

ing, or a copy if the originals have been destroyed. Oral

testimony concerning the contents of a writing is permitted

only if the writing has been lost or destroyed. In this case,

the agent testified that copies of the tickets were at the

Pittsburgh offices of the Drug Enforcement Agency.

The government also circumvented Rule 16(a)(1)(C) of the

Federal Rules of Criminal Procedure by eliciting the con-

tents of the airline tickets without producing them for Peti-

tioners’ counsel. This rule requires the government to per-

mit a defendant to inspect all documents or tangible objects

which are intended for use by the government as evidence

in chief. Whether the tickets would be introduced into

evidence was a determining factor in many of counsel’s

strategic decisions, particularly the decision whether or

not to have Petitioners testify. Therefore, production of

the tickets was an important procedural right to which

Petitioners were entitled.

17

When the district court, upon reconsideration, agreed

that the agent’s testimony had been improperly admitted,

it refused to grant a mistrial and instead gave a cautionary

instruction to the jury to disregard the testimony. The

jurors could not have been expected to wipe this highly

relevant information from their minds with a simple in-

struction. Not only could the tickets be evidence that Peti-

tioners had knowledge of the illegal activity in Norfolk,

but the tickets were corroborated by Mr. Lisotto’s piece of

paper on which the names Frank and Harry List appeared.

Without the tickets, the names were meaningless to the

jury. The jury’s inability to erase important information

has been recognized by courts when the government has

introduced coconspirators’ statements which did not come

within the exception. Cf. United States v. Bell, 573 F.2

1040, 1043 (Sth Cir. 1978) (en banc) (if court determines

government has failed to carry burden of proof, court ‘will

declare a mistrial, unless a cautionary instruction would

suffice to cure any prejudice).

Where the evidence is of such an “exceptionally pre-

judicial character” that a cautionary instruction would be

ineffective in removing the harmful effect on the jury, a

defendant is entitled to a new trial. United States v. Green,

400 F.2d 847, 848 (6th Cir. 1968), citing Dolan v. United

States, 218 F.2d 454 (8th Cir. 1955). The agent’s testimony

concerning the airline tickets was exceptionally pre-

judicial, and the above-cited holding should apply.

The Fourth Circuit’s holding that this issue lacked merit

is erroneous and should be reversed.

ISSUE V.

Although Rule 14 of the Federal Rules of Criminal Pro-

cedure places the decision to grant or deny a motion to

18

sever within the discretion of the trial court, severance is

required if “a substantial degree of prejudice” would result

from a joint trial. United States v. Shuford, 454 F.2d 772,

776 (4th Cir. 1971). As the Shuford court observed:

Notwithstanding the need for efficiency in

judicial administration, a joint trial is inap-

propriate if it sacrifices a defendant’s right to a

fundamentally fair trial

Ibid.

Petitioners did not receive a fair trial due to a combina-

tion of two factors: their codefendants were tried in absen-

tia while a disparity of evidence existed between the

minimal, circumstantial evidence introduced against Peti-

tioners and the overwhelming, direct evidence against the

two absent codefendants.

Where a defendant is tried jointly with his alleged

coconspirators who, according to the evidence, had much

greater involvement, the courts have recognized the

danger that guilt will be transferred from _ the

coconspirators to the defendant irrespective of the actual

evidence. United States v. Sampol, 636 F.2d 621, 645

(D.C. Cir. 1980); United States v. Mardian, 546 F.2d 973,

977 (D.C. Cir. 1976).

The Assistant U.S. Attorney admitted that Mr.

Schocket and Mr. Bishop were the chief coconspirators in

the case. All the direct evidence focused on Mr. Bishop

and Mr. Schocket because the agents and the informant

dealt exclusively with them: their telephone conversations

werer taped; they inspected the marijuana; and they hand-

ed over the money. In contrast, the evidence against Peti-

tioners is purely circumstantial. The agents and the infor-

mant never spoke with them; they were never seen with

money or drugs. The evidence against Petitioners was so

19

slight that any risk of guilt transference from Mr. Bishop

and Mr. Shocket was too great to insure petitioners had a

fair trial.

The danger of guilt transference from the large amount

of evidence against the missing codefendants was

heightened by the fact that the codefendants were tried in

absentia. Despite cautionary instructions by the district

court, the jury most likely drew an unfavorable inference

with respect to Petitioners from the absence of Messrs.

Bishop and Schocket, as did the district judge at a later

bond revocation hearing when he commented that he

could not disregard the possibility that the absence of

Messrs. Bishop and Schocket was part of a design between

the four codefendants.

At least one circuit court has recognized that where the

chief coconspirator is absent the remaining defendants

cannot receive a fair trial. In United States v. Stratton, 649

F.2d 1066 (Sth Cir. 1981), six defendants were charged

with conspiring in violation of the Racketeer Influenced

and Corrupt Organizations Act. The central figure was a

state court judge and the other defendants were court

employees, attorneys and others who participated with the

’ judge in bribery, manipulation of the grand jury, threaten-

ing witnesses and other obstructions fo justice. During the

trial, the judge became ill and his case was severed.

However, the appellate court found that he had, in effect,

been tried in absentia because the jury had been told to

consider his participation in the conspiracy during their

deliberations and the same jury later heard the remainder

of the judge’s trial when he recovered. Reversing the

codefendants’ convictions, the court stated:

{[O]jur careful review of the record in this case

convinces us that the absence of Judge Smith

20

prejudiced the effective presentation of the re-

maining coconspirators’ defenses. Because Smith

was such a central figure in the conspiracy,

allowing the government to try Smith in absentia

abridged not only Smith’s rights, but, under the

facts of the case at bar, also abridged the rights

of his coconspirators. The entire trial was thus

tainted by the bifurcated trial procedure adopted

in this case.

649 F.2d at 1083.

The Second Circuit has held a defendant is not preju-

diced by having a codefendant tried in absentia, United

States v. Lobo, 516 F.2d 883 (2d Cir.), cert. denied, 423

U.S. 837 (1975); United States v. Cianchetti, 315 F.2d 584

(2d Cir. 1963), but neither opinion addressed the pertinent

question here: whether the disparity of evidence between

the absent codefendants and the remaining codefendants

would impair the jury’s ability to deliberate impartially.

Severence would not have been unduly burdensome on

the government. The trial only lasted three days. Almost

all of the witnesses were government agents so that the

government’s case would not have been jeopardized or

seriously inconvenienced by delaying Mr. Bishop’s and

Mr. Schocket’s trial. Cf. United States v. Benavides, 596

F.2d 137, 140 (Sth Cir. 1979). Two witnesed who testified

about the hotel phone records lived in the area. The

informant apparently cooperated with the government on

other cases and was in no way an unwilling witness. See,

e.g., United States v. Peterson, 524 F.2d 167 (4th Cir.

1975), cert. denied, 424 U.S, 925 (1976) (trial in absentia

proper where government’s chief witness and potential ac-

complice was vascillating on testifying). If the government

had been anxious about preserving testimony, since it was

unclear when the missing defendants would have been ap-

21

prehended, it could have tried them in absentia immediate-

ly after Petitioners’ trial. Alternatively, the government

could have tried Petitioners on their original trial date

(when the codefendants’ absence first came to light) in-

stead of requesting that the district court continue the trial

for over a week to investigate the disappearances. All of

the witnesses were present on that date, and Petitioners

were prepared to go to trial.

The Fourth Circuit erred in holding that Petitioners’

claim of prejudice was without merit, and it should be

reversed. The evidence being slim and circumstantial

against Petitioners, they deserved a scrupulously fair trial.

ISSUE VI

There are constitutional limitations to a federal district

judge’s right to conduct a broad inquiry into a defendant’s

character and background for sentencing purposes. One

of these limitations is a defendant’s due process right to be

sentenced only on information which is accurate. United

States v. Lee, 540 F.2d 1205, 1210 (4th Cir.), cert. denied,

429 U.S. 894 (1976), citing Townsend v. Burke, 334 U.S.

736 (1948); accord: United States v. Howard-Arias, 679

F.2d 363, 367 (4th Cir. 1982), cert. denied, 103 S.Ct. 165

(1983).

Mr. Pella’s presentence report stated that many of his

past associates had connections with organized crime and

had serious criminal histories. At the sentencing hearing

held November 23, 1982, Mr. Pella’s counsel requested

that this statement be stricken since the allegation was so

nebulous that Mr. Pella could not rebut the charge. The

district court simply noted the objection for the record and

sentenced Mr. Pella to twelve years imprisonment, stating

that the primary consideration was his past criminal

%7

record. However, at a subsequent hearing on Mr. Peila’s

bond reduction motion held January 12, 1983, the district

court refused to reduce the bond based upon the

presentence report’s allegation, reasoning that Mr. Pella’s

so-called organized crime connections could raise enough

money for him to flee. Thus, the district court judge

clearly accepted the veracity of the presentence report’s

accusation and found it significant.

The presentence report claimed that Mr. Pella had con-

nections with organized crime without specifying the rela-

tionship or revealing the source of that information.

Althouth Mr. Pella objected to that portion of the

presentence report, his denial alone was insufficient to

remove any possible taint. He could not rebut such a

broad allegation by proving the converse: that he had no

connection with organized crime. Only if the presentence

report had contained the factual foundation for the

charge, could Mr. Pella have had a genuine opportunity to

counter the accusation.

The Second Circuit, which addressed the dangers of

presentence reports containing unattributed accusations of

organized crime connections, decided that due process

guarantees prohibited the sentencing judge from consider-

ing such allegations unless the government revealed the

source of the accusations, or, if there was good cause for

the source’s nondisclosure, unless the government

presented sufficient corroboration of the allegation.

United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978),

affd. after remand, 603 F.2d 1053 (1979), cert. denied, 444

U.S. 1073 (1980). The Fatico court understood that merely

giving the defendant an opportunity to deny the allegation

is insufficient to protect his or her due process rights. In-

stead, the government had the burden of supporting its

accusations.

23

In this case, the presentence report made the bare allega-

tion that Mr. Pella had organized crime connections.

When Mr. Pella denied the veracity of the charge, the

court simply noted his denial. It did not require the

government to either reveal the source of that information

or present corroboration. The unreliability of this infor-

mation is apparent when this Court considers that the

government also represented to the court that upon arrest

Mr. Lisotto was found with a notebook containing the

telephone numbers of known drug dealers. The district

court initially accepted this representation, but at an

evidentiary hearing held later, the government could not

substantiate its allegations.

The Fourth Circuit’s assessment that this issue lacks

merit is erroneous and Petitioner Pella’s sentence should

have been vacated to permit him to be resentenced before

another district judge.

24

CONCLUSION

For all the reasons set forth herein, this Court should

grant the petition for writ of certiorari to the United States

Court of Appeals for the Fourth Circuit, and should

resolve these issues which are of fundamental importance

to the criminal justice system.

STANLEY E. PREISER

SHERRI GOODMAN DUSIC

Preiser & Wilson, L.C.

1012 Kanawha Boulevard, E.

Post Office Box 2506

Charleston, WV 25329

(304) 344-9651

Counsel for Petitioner,

John James Pella

WILLIAM B. CUMMINGS, P.C.

William B. Cummings, P.C.

Post Office Box 1177

Alexandria, VA 22313

Counsel for Petitioner,

Oltrado Michaelangelo Lisotto

. la

APPENDIX A

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5329

United States of America,

Appellee,

a

Oltrado Michaelangelo Lisotto,

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia, at Norfolk.

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Virginia, and was argued by counsel.

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said

District Court appealed from in this cause, be, and the

same is hereby, affirmed.

/s/William K. Slate II

Clerk

FILED

Dec. 1, 1983

U.S. Court of Appeals

Fourth Circuit

2a

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5333

United States of America,

Appellee,

Vv.

John James Pella,

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia, at Norfolk.

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Virginia, and was argued by counsel.

On consideration whereof, It is now ordered and ad-

judged by this Court that the judgment of the said District

Court appealed from in this cause, be, and the same is

hereby, affirmed.

/s/ William K. Slate II

CLERK

* FILED

Dec. 1, 1983

U.S. Court of Appeals

Fourth Circuit

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5329

United States of America,

Appellee,

ws

Oltrado Michaelangelo Lisotto,

Appellant.

No. 82-5333

United States of America,

Appellee,

¥,

John James Pella,

Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia, at Norfolk. J. Calvitt Clarke,

Jr., District Judge. CR 82-98-N

da

Argued: October 7, 1983 Decided: December 1, 1983

Before HALL and CHAPMAN, Circuit Judges; and

BUTZNER, Senior Circuit Judge

William B. Cummings for Appellant Lisotto; Stanley E.

Preiser (Frederick D. Fahrenz, Jeffrey K. Matherly, Sherri

D. Goodman, Preiser & Wilson, Legal Corporation on

brief) for Appellant Pella; Raymond A. Jackson, Assis-

tant United States Attorney (Elsie L. Munsell, United

States Attorney on brief) for Appellee.

HALL, Circuit Judge:

Oltrado Michaelangelo Lisotto and John James Pella

appeal from their jury convictions of conspiring to possess

marijuana in violation of 21 U.S.C. § 841(a)(1). Finding

no error, we affirm.

On the morning of July 19, 1982, DEA agents, posing as

drug dealers, met with Jerry Bishop at Horne’s Coliseum

Inn outside Norfolk, Virginia, and discussed the sale of

approximately 2,700 pounds of marijuana for $370,000.

The agents then left the Coliseum Inn to inspect the mari-

juana. Upon inspecting the marijuana, Schocket indicated

that he wanted to buy the entire allotment of 4,700

pounds, rather than the lesser amount previously dis-

cussed. Schocket and the agents then returned to the Col-

iseum Inn and met with Bishop.

Sa

Bishop stated that he wanted to buy all the marijuana,

and that although he did not then have the purchase

money, he expected to have it the following day. Mean-

while, Schocket went to Bishop’s hotel room and placed

several phone calls. Telephone toll records for Bishop’s

room showed that three long distance calls were made to

the Pittsburgh, Pennsylvania, area. Two of these calls

were made to appellant Pella’s home. When Schocket

returned from Bishop’s room he confirmed to the agents

that he and Bishop would have the money the next day.

The following morning, on July 20, DEA agents in Pitt-

sburgh, Pennsylvania, observed appellants Pella and

Lisotto, a licensed pilot, board a commercial flight for

Norfolk, Virginia. Pella was carrying a shoulder bag;

Lisotto did not carry any baggage. Upon arrival in Nor-

folk that afternoon, Pella and Lisotto took a taxi to the

Sheraton Inn, where Schocket was staying.

Later that same afternoon government agents met with .

Bishop in the lounge of the Sheraton Inn. When this

meeting began, the agents observed Lisotto on the other

side of the lounge. Pella later joined Lisotto, and they

moved to a table at the entranceway of the lounge. Bishop

informed the agents that he had received the money to

complete the transaction and that he would have Schocket

bring it downstairs to them. Bishop then went up to

Schocket’s room. Pella and Lisotto followed him. When

Schocket came downstairs with the money, he was ar-

rested.

Bishop, Pella, and Lisotto were arested immediately

afterwards in Schocket’s hotel room. When Lisotto was

arrested, the DEA agents seized from him his pilot's

license and a slip of paper with Bishop’s hotel telephone

number. After arresting Pella, the DEA agents seized

6a

from him a slip of paper containing the hotel telephone

numbers of Bishop and Schocket. Following Bishop’s ar-

rest, and pursuant to a search warrant, the agents took

from Bishop’s belongings a slip of paper bearing Pella’s

home telephone number in Pittsburgh.

In July, 1982, Lisotto, Peila, Bishop, and Schocket were

indicted for conspiracy to possess and distribute mari-

juana, interstate travel to promote an unlawful activity,

and possession of cocaine. Although Bishop and Schocket

were fugitives at the time of the trial, all co-defendants

were tried before a jury in October, 1982. At trial, the

district judge admitted certain out-of-court statements of

Bishop and Schocket which implicated Pella and Lisotto

in the conspiracy.' The trial judge ruled that these

statements were admissible under Fed. R. Evid.

801(d)(2)(E)? because there was sufficient independent

evidence to establish that Pella and Lisotto were members

of the conspiracy.

Bishop and Schocket were convicted on all counts. Pella

and Lisotto were found guilty only of the conspiracy

charge. They now appeal these convictions.

'These statements included Schocket's explanation that the money

was coming from Pittsburgh, and that the marijuana would be flown

to Pittsburgh, and Bishop's observation that one of the men coming

from Pittsburgh was a pilot. Following Pella and Lisotto’s flight into

Norfolk, Bishop also informed the DEA agents that the people from

Pittsburgh had arrived with the money.

*Pursuant to Fed. R. Evid. 801(d)(2)(E), a statement against a

defendant is not hearsay if it is made “by a co-conspirator . . . during

the course of and in furtherance of the conspiracy.”

7a

Il.

Appellant’s central contention on appeal is that the trial

judge erred in admitting Bishop and Schocket’s out-of-

court statements about appellants because the independent

evidence presented was insufficient to convict them. Ap-

pellants further contend that because Bishop and Schocket

were not at the trial, the admission of these statements

violated appellants’ Sixth Amendment right to confront

their accusors. We disagree.

Appellants initially argue that the evidence upon which

the jury could rely to find appellants guilty beyond a

reasonable doubt showed no more than appellants’ mere

association with their co-defendants. This contention,

however, fails to consider the inculpatory nature of the in-

dependent evidence presented. The record indicates that

Bishop did not have the money to buy the marijuana when

he first offered to purchase it. Two phone calls were then

made from Bishop’s hotel room to Pella’s home telephone

number in Pittsburgh, and within hours Pella and Lisotto

travelled from Pittsburgh and arrived at Schocket’s hotel.

The money was delivered on the afternoon of their arrival.

Both were within sight of Bishop’s and the DEA agent’s

final negotiations for the drugs. Both were arrested in

Schocket’s room immediately following the drug trans-

action. Upon their arrests, evidence was seized from both

appellants linking them to Bishop and Schocket. These

facts and all inferences that logically may be drawn from

them were sufficient, apart from any hearsay, to support

appellants’ convictions. Given this independent evidence,

the district judge did not err in admitting statements under

the co-conspirator exception to the hearsay rule, and the

jury was warranted in finding beyond a reasonable doubt

hat a conspiracy existed and that apepllants knew of it

ind joined in it.

8a

Likewise, we find no merit in appellants’ contention that

admission of the statements at issue violated their Sixth

Amendment rights. In Ohio v. Roberts, 448 U.S. 56

(1980), the Supreme Court identified two restrictions the

Confrontation Clause places on the use of hearsay

evidence in criminal trials. First, the prosecution generally

must establish that the declarant is unavailable. Second,

the statement may be admitted only if it bears adequate

“indicia of reliability.” Jd. at 65.

In this case, the government has met both of the restric-

tions identified in Ohio v. Roberts. It is undisputed that

the co-defendants were fugitives—and thus,

unavailable—at the time of trial. Moreover, the

statements were reliable because they were against the co-

defendants’ penal interest and further established their

complicity in the conspiracy. Appellant’s Sixth Amend-

ment argument is therefore without merit.

Il.

After a careful review of the record, we have determined

that appellants’ additional challenges to the judgment

below are also without merit. For the foregoing reasons,

we conclude that there was sufficient evidence to support

the verdicts of guilt beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307 (1979); United States v.

Sherman, 421 F.2d 198, 199-200 (4th Cir.), cert. denied,

398 U.S. 914 (1970). Accordingly, the convictions are

affirmed.

AFFIRMED

9a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 82-5329

United States of America,

Appellee,

versus

Oltrado Michaelangelo Lisotto,

Appellant.

No. 82-5333

United States of America,

Appellee,

versus

John James Pella,

Appellant.

Appeals from the United States District Court for the

Eastern District of Virginia, at Norfolk, J. Calvitt Clarke,

Jr., District Judge

Upon consideration of the appellants’ petition for

rehearing, by counsel,

10a

IT IS ORDERED that the petition for rehearing is

DENIED.

Entered at the direction of Judge Hall for a panel con-

sisting of Judge Hall, Judge Chapman, and Judge

Butzner.

For the Court,

/s/ William K. Slate, II

CLERK