# Petition — Lisotto v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1477%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 905

## Text

+ 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

FR GP CONTENTED occ ccccccccccccccccnscecc.

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
hoes a abt sss bee case deaedbevetne en 3
a. nee cpabacecdeumetensseteeenn 4

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1477%3A1. Public record. Not legal advice.