Petition — Sanson v. United States

3- 454

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

RECEIVED

MAR

ORGNAL be

. ‘ ICE OF THE CLERK

-b.ivAl

__ SUPREME COURT. Ug

et

ALLEN SANSON, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

Clifford L. Weaver

Charles L. Glick

Attorneys for Petitioner

Burke, Bosselman, Freivogel,

Weaver, Glaves & Ryan

55 West Monroe Street

Suite 800

Chicago, Illinois 60603

(312) 263-3600

March 19, 1984

QUESTIONS FOR REVIEW

t. Has the Seventh Circuit misinterpreted this Court's

opinion in Ohio v. Roberts by failing to follow six other Courts

of Appeals in finding that Roberts and the Confrontation Clause

require a case-by-case constitutional analysis separate from that

of Rule 801(d)(2)(E), Fed.R.Evid?

2. Is a prosecutor's second-hand belief that a hearsay

declarants' attorney would have advised the declarant to assert

the privilege against self-incrimination insufficient to estab-

lish the declarants' constitutional unavailability under the

Confrontation Clause?

TABLE OF CONTENTS

TABLE OF CASES AND OTHER AUTHORITIES ....ceeceeccsescesecees

OPINIONS BELOW ..cccccccccccccccccccccccsccsseseseessesesece

JURISDICTION 2. ccccccccccccecvvccvccssesescesssesesssesssess

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ........000.

STATEMENT OF THE CASE .ncccccccccccscccceccsessscesessssecs :

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW DIRECTLY CONFLICTS WITH THE DE-

CISIONS OF SIX OTHER COURTS OF APPEALS AS TO THE

PROPER INTERPRETATION OF THIS COURT'S OPINION IN

OHIO Vv. ROBERTS *eeeeteeeeeeeeeeeseeeeeneeeeeseeeeeeeeeeeee

II. THE OPINION BELOW EMASCULATES THIS COURT'S OPINION

IN OHIO V. ROBERTS .nccscccccsccsceesecscesessseees

A. THE OPINION BELOW ABANDONS THE TWO-PRONG

TEST REQUIRED BY ROBERTS *eenereeeteeeeeeeeeneeeeeee

B. THE OPINION BELOW VIOLATES ROBERTS BY

COLLAPSING THE CONSTITUTIONAL ANALYSIS

INTO THE EVIDENTIARY ANALYSIS ...... ecccee cece

III. THE OPINION BELOW RAISES IMPORTANT..POLICY ISSUES

ARISING OUT OF A CONSTITUTIONAL ISSUE ...... ceccces

CONCLUSION ..... Cec cc ccc cece cece essere eceebeseseseseces eee

12

4

14

15

16

19

TABLE OF CASES AND OTHER AUTHORITIES

Page

Cases:

Barber v. Page, 390 U.S. 719 (1968) ...ceeeeeseeee 12

Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) 13

Ohio v. Roberts, 448 U.S. 56 (1980) .........0000 12, passim

Pillsbury v. Conboy, 103 S.Ct. 608 (1983) ........ 17

United States v. Ammar, 714 F.2d 238 (3rd Cir. 1983),

cert. denied, 104 S.ct. 344 ( } s6d6vensavece 12, 13, 14

United States v. Davis, 578 F.2d 277 (10th Cir. 1978) 13

United States v. Fielding, 630 F.2d 1357 (9th Cir.

TRUST c5sbebouctsecesecrnoaresnchohencebasee cbbee 6, 7, 3

United States v. Goodman, 605 F.2d 870 (5th Cir. 1979) 13

United States v. Kelley, 526 F.2d 615 (8th Cir. 1975),

cert. denied, 424 U.S. 971 (1976) ....ccceececes 13

United States v. Kendall, 665 F.2d 126 (7th Cir. 1981),

cert. Genied, 955 0.8. 1021 (1962) .cccccssecses 16

United States v. Kenney, 462 F.2d 1205 (3rd Cir.),

cert. denied, S09 U.S. 918 (1972) wccccccccccces 12

United States v. Lurz, 666 F.2d 69 (4th Cir. 1981),

i Salle. CE wehedudane o6so00 sees WE0bs Chen eeOe 13

United States v. Ottomano, 468 F.2d 269 (1st Cir. 1972),

oore, Gensee, |\Gae Cells BISe CIDTS) cwecwscactene 13

United States v. Paria, 560 F.2d 827 (7th Cir. 1977) 2, %3§

United States v. Peacock, 654 F.2d 339 (5th Cir. 1981)

vacated in part on other grounds, 686 F.2d 356 (1982) 12, 33

United States v. Perez, 658 F.2d 654 (9th Cir. 1981) 14

United States v. Snow, 521 F.2d 730 (9th Cir. 1975),

cert. denied, 423 U.S. 1090 (1976) ............. 13

United States v. West, 670 F.2d 675 (7th Cir. 1982),

cert. denied, oe VIED cocdcessssacees eseces 11

United States v. Wright, ee F.2d 31 (2nd Cir. 1978),

cert. denied, 440 ff: 3! eorvecceosceccocece eeccecce 13

Statutes:

Sixth Amendment of the United States Constitution 12, passim

St B.B.6.. 9 GAS COUR) 600006 000006060060006000608 9

21 G.8.6. § 841(a) (1976) “eee ee ee eee eeneeee “eee ee © 2

Federal Rules:

Rubee GUCGREERIERD 6o-0-0-0-4:0:0.04:0-66-046-66-0460006bb0enb— 12, passis

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

RECEIVED

No. MAR 21 1984

OFFICE OF THE cree;

SUPREME couer uw

ALLEN SANSON, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

OPINIONS BELOW

The trial court issued no opinion. The minute order

adjudging Petitioner guilty appears in the Appendix. The opinion

of the Court of Appeals is unreported, pursuant to local Circuit

Rule 35(c), but appears in the Appendix. United States of Ameri-

ca_v. Allen Sanson, No. 83-1324 (7th Cir. Jan 18, 1984). Cireuit

Rule 35(c)(2) states that the "statement of facts [in] the order

- May not be complete or detailed."!

JURISDICTION

The judgment of the United States Court of Appeals for

the Seventh Circuit was entered on January 18, 1984, affirming

petitioner's conviction entered January 6, 1983. This petition

was filed within 60 days of January 18, 1984. The jurisdiction

of this Court is invoked under 26 U.S.C. § 1254(1) and this

Court's Rule 20.1.

' The caption of the case in this Court contains the names of

all parties.

ote

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Sixth Amendment of the United States Constitution, U.S. Const.

Amend. VI:

"In all criminal prosecutions, the accused

shall enjoy the right ... to be confronted

with the witnesses against him ...."

21 U.S.C. § 846 (1976):

"Any person who attempts or conspires to com-

mit any offense defined in this subchapter is

punishable by imprisonment or fine or both

which may not exceed the maximum punishment

prescribed for the offense, the commission of

which was the object of the attempt or con-

spiracy.”"

21 U.S.C. § 841(a) (1976):

Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or

intentionally--

(1) to manufacture, distribute, or dispense,

or possess with intent to manufacture,

distribute, or dispense, a controelled

substance; or

(2) to create, distribute, or dispense, or

possess with intent to distribute or

dispense, a counterfeit substance.

STATEMENT OF THE CASE

A. JULIO MUNIZ

On the morning of August 18, 1982, Julio Muniz ran a

small grocery store in Chicago, Tr. 62, and was already a one-

time loser. He had been indicted four months earlier for posses-

sion and distribution of heroin.¢

His case was still pending.

Trial was approaching. Although he had at first been provided

with court-appointed counsel in that case, he had just retained a

paid attorney. His wife had retained a second paid attorney.

Muniz's house was for sale. Tr. 117-118.

e Muniz and his wife, Martinez, had both been implicated in the

events leading up to a May 6, 1982 indictment. See docket of

United States v. Rosado, No. 82-CR-313, opened April 29, 1982.

ie

B. MUNIZ'S LAST CHANCE

Muniz had been contacted the day before by two heroin

sellers who offered to sell Muniz four kilos for $100,000. fr.

28-30. However, the sellers told Muniz he could not have deliv-

ery until he proved that he could pay. They demanded $30,000 as

a down payment. Tr. 61, 61b, 69, 78. Muniz desperately needed a

new source of supply who did not know about his indictment, who

would not fear that he had become an informer. Tr. 120.

C. THE "REVERSE STING"

Unknown to Muniz, his luck had entirely run out. The

sellers were in fact undercover D.E.A. Agent Arreguin and a Gov-

ernment informant, Pena, a migrant worker. Tr. 146-147, Arre-

guin was to arrest Muniz and his wife, Martinez, that afternoon,

August 18. Tr. 92. Muniz was to discover Arreguin's identity

Only moments before his arrest. Tr. 90-91. Meanwhile, Muniz

urgently sought to reassure his new supplier and close the deal.

D. THE REASSURANCE

Muniz had had trouble raising the down payment. He had

made the sellers wait one day, then two, as he tried to gather

cash together. Tr. 61, 65, 66-67. The seller, Arreguin, pressed

for the down payment. Muniz assured him that a white man, his

courier, would soon deliver the money. Tr. 65. To further pla-

cate Arreguin, Muniz told stories of past narcotics deals. Tr.

61b, 62, 64. He displayed jewelry and gold. Tr. 72-73. He de-

scribed real estate, cars, clothes--all bought, he said, with

narcotics profits. Tr. 61b, 62, 64, 72-74, 141, 142. He offered

the sellers dinner, a place to stay. Tr. 61a, 72. He urged them

a}

to remain calm, to believe that he was good for the money. Arre-

guin later testified, "He was trying to impress me, I think.”

Tr. 72. "He was bragging a lot." Id.

E. THE STALL

On the 18th, as Muniz, Arreguin, and Pena were waiting

at Muniz's house, Muniz tried, over the telephone, to hurriedly

sell the heroin he was about to buy. Tr. 77-78. He was having

"cash flow" problems. Tr. 78. He told Arreguin that $15,000,

half of the down payment, was on the dining room table, and that

another $5,000 to $10,000 would be delivered soon. Tr. 67-69,

70, 75, 75. In fact, Arreguin later counted only $6,570 on

the table. It was arranged with large bills on top, and rubber-

banded. Tr. 68 (GX 4) .3 Muniz was going to be far short of the

amount he needed to close the deal.

F. THE COURIER'S RACE

Although Muniz first described his courier as white, tr.

65, he later told the sellers that the courier was a "colored

man" in his "organization." Tr. 67. Muniz painted a picture of

a large marketing organization, staffed by lieutenants wealthy in

their own right. The courier, Muniz said, "always drives a blue

Cadillac." Tr. 81-82. No evidence of any courier exists besides

that attempting to portrary Sanson as the courier. Nor does any

first hand evidence describing Muniz's "organization" exist.

Petitioner Sanson, a black man, drives a 1973 Dodge. Tr. 245.

3 GX = Government Exhibit.

-4-

G. THE REPEATED "PHONE CALLS"

In the seller's presence, Muniz made and received sever-

al telephone calls concerning the grocery store he ran. Tr. 124.

It was not his habit during these calls to repeat the words spok-

en by the other party. Tr. 124-125. Arreguin the seller was

impatient. He asked what was taking the courier so long. Tr.

69. He told Muniz that if he did not see the rest of the

$30,000, he would not deliver the heroin. Tr. 69-70. Muniz went

to the telephone, consulted a name and address book, and dialed

an unobserved number. Tr. 70. Arreguin increased the pressure.

He said, "Look, I think you're having a little prodlem coming up

with this kind of money. I don't think you can come up with a

hundred thousand. I think you're having a hard time coming up

with 30 thousand." Tr. 78. The seller's urgent query and

Muniz's calls were twice repeated that afternoon. Tr. 74-75, 78,

80-81. During these calls, unlike the grocery store calls, Muniz

would repeat what Arreguin thought was being said on the other

end. Tr. 71. During the first call, he convinced the agent/sel-

ler that the “organization man" was on the way. Tr. 71-72.

During the second call, the "courier" had developed a flat tire,

but was in the neighborhood. Tr. 74-75. During the third call,

he was on the corner nearby. Tr. 80-81. Arreguin never saw the

number dialed; never heard a voice on the other end of the line.

Tr. 81. Only once did a drug-related call come in to Muniz.

Muniz told the caller to meet his wife "on the corner". Tr. 86.

H. THE TARGET'S ARREST

Muniz then sent Martinez to get him some food from a

nearby convenience store, a White Hen Pantry. Tr. 83. He also

‘ Even with the $10,000, and even if the cash on the table were

$15,000 instead of $6,570, Muniz would still be $5,000 short

of the $30,000 down payment needed, and would have to bargain

further to close the deal.

told her to look for the "courier" and to get $10,000 from him.”

Arreguin could not tell if Martinez left the house with any large

amount of money concealed. Tr. 84-85. There were twelve sur-

veillance agents outside Muniz's house, “almost circling the

whole house." Tr. 82, 127. One of them, Agent Tucci, tailed

Martinez. Tr. 207-209, 211, 212. Martinez returned with food,

and produced what was supposed to be close to $10,000. Tr. 88-

90. The money was rubber-banded, like the money already on the

dining room table. Id. The bundle was, in fact, only $2,800.

Id. (GX 5.) The informant left the house to tell the surveil-

lance agents to "hit the house,” and Muniz and Martinez were

arrested. Tr. 89-92, 178.

I. MUNIZ' SENTENCE

Muniz plea bargained with the prosecutor and received

dismissal of all three counts in this case, in exchange for a

sentence of 12 years imprisonment and a special probation term on

other outstanding charges. The Government moved to dismiss all

charges against Muniz in this case as early as October 1, 1982,

three months before petitioner Sanson's trial. Muniz was sen-

tenced on October 22, 1982, over two months before Sanson's tri-

al. Martinez, Muniz's wife, pleaded guilty a month before trial

and received five years" probation as punishment.

J. PETITIONER SANSON'S ADDICTION AND CONVICTION

On the morning of August 18, 1982, petitioner Allen

Sanson was still a heroin addict. Tr. 237. Although he had a

job doing body work in an automobile garage on the South Side of

Chicago, he sniffed heroin. Tr. 236-238. His fiance had seen

him sick. Tr. 237. He had scars on his arms. Tr. 238. That

afternoon, he had at least $1,600 in his pocket, and wanted hero-

in. Tr. 99. He went for a ride up to Muniz' neighborhood with

his cousin, Charmaine Walls, an employee with the Federal Re-

serve. Tr. 243, 245.> Sanson's car was a 1973 Dodge. Tr. 245.

H. THE BUY BEGINS

They drove to a parking lot, in front of a White Hen

Pantry and a McDonald's. Tr. 246. In the White Hen Pantry,

Sanson met Martinez. id. Sanson and his cousin then went into

the McDonald's for a bite. Id. Sanson went to the bathroom.

Ths 207s

I. THE INFORMER'S "LUCK"

After telling the surveillance agents surrounding the

house to "hit it," Pena testified that he drove to the White Hen

Pantry to make an urgent phone call. Pena claimed that, while

waiting to make the call, he happened to stand behind Sanson.

Pena said he saw Sanson dial Muniz's number, and heard him ask

for Muniz. Tr. 179-180. However, when Pena was asked what ur-

gent call he was in line to make, he said he stopped to call the

D.E.A. because he heard Sanson dial and ask for Muniz. Tr. 180.

Pena did not explain this circular logic at trial. Pena said

that he got no answer at the D.E.A. and no answer at Muniz's

house. Tr. 194-195.

The agent/seller Arreguin testified that he received a

call at Muniz’ home immediately after Muniz's aud Martinez's ar-

rest. Tr. 92-93. Arreguin's caller allegeily said that he had

sent the money and would wait on the corner. Tr. 93. The agent

3 Ms. Walls was not suspected of any illegality and was not

arrested or charged.

said that he would be right there. Id. The only evidence of the

earlier calls was the agent's impression of Muniz's side of the

conversations.

J. SANSON'S BUY ABORTED BY ARREST

Flush from the arrest of Muniz and Martinez, Arreguin

and Pena arrived at the McDonald's. Tr. 93-95. They went into

the bathroom after Sanson, leaving half a dozen other agents

inside and outside the restaurant. Tr. 95-97, 134. Arreguin

asked if Sanson was the one who sent the money. Tr. 96. He

later testified that Sanson replied affirmatively and said, "Did

you bring the sample of heroin, you know, so I can test it?" Id.

Arreguin said he had it in his pocket, but in fact, since it was

a reverse sting, no heroin existed at all. Id. Sanson suggested

that they exchange the drug down the street. Tr. 97.

Leaving the restroom, Sanson allegedly recognized Peas-

ant, one of the other agents. He said, "Oh, I knew this was

going to happen." Tr. 98. He was placed under arrest and taken

outside. Arreguin and the informer testified that after being

read his rights, Sanson continued to chat. He was said to have

asked Peasant, "Don't you remember you arrested me in Hammond,

Indiana a couple of years ago?" Tr. 100. There was no evidence

of an earlier arrest in Hammond. Sanson was in prison from 1974

until 14 months before this arrest.

K. THE DEFENSE THEORY

At trial, petitioner Sanson did not dispute that a con-

spiracy to distribute heroin and cocaine existed between Muniz,

his wife Martinez, Pena, and Arreguin. Sanson also did not dis-

pute that he was attempting to commit an illegal act -- to pur-

chase heroin. But Sanson was neither charged nor convicted of

attempted purchase. He stands convicted of conspiracy to dis-

tribute under 21 U.S.C. § 846 (1976). At trial, the defense

showed that Sanson was a heroin addict, that he knew Muniz and

Martinez, that he drove to Muniz's neighborhood, that he met

Martinez on the day of his arrest, and that he was arrested with

$1,600 in his pocket. Sanson's entire defense was that he was

not a knowing participant in the conspiracy and that Muniz was a

dealer trying to close one last deal before going to jai1.®

L. THE GOVERNMENT'S CASE

The government did not attempt to preve Sanson's partic-

ipation in the cocaine conspiracy although it introduced much

evidence of the cocaine conspiracy. See GX 1, GX 4, Ti. 44,

54-56, 78-80, 83, 91-92, 152-55, 162-64, 177, 173-74, 209, 213-

14. The cocaine charges remained in the indictment. Tr. 284-85.

The government proved, in the words of the trial judge at side-

bar, "a wonderful case against Muniz." Tr. 203. Muniz was never

called by the Government as a witness. Neither was Martinez. No

heroin was ever introduced because no heroin ever existed.

Sanson'’s defense was far less than vigorous. The defendant's

case in chief consumed a slight eleven and one-half pages of

the 300-page transcript. No objection was made to references

to defendant's former arrests. When the informant was caught

in a wildly improbable statement--that he was able to see

Sanson dial Muniz’ number because nothing protected the phones

from weather on the outside wall of the White Hen Pantry--no

photograph of the telephones was introduced to confirm the

lie. No objection was made to the focus given to cocaine by

the jury instructions. Tr. 340. No objection was made to the

indictment references to a cocaine conspiracy which the jury

took with them into the jury room. No objection was made when

the trial court violated the provisions of the Speedy Trial

Act by excluding all the time between the day of arrest and

the end of the year. Judge Leighton ordered on December 7,

1982 that future time be excluded and failed to state in writ-

ing his grounds for doing so. No objection was made.

The most damaging evidence introduced against Sanson was

from Muniz. Although Muniz was never present at trial, his hear-

say statements were repeated to the jury by agent Arreguin and

the informant, Pena. These hearsay declarations by Muniz to the

sellers Arreguin and Pena asserted that Sanson had a role in

Muniz's "organization," that he had worked for Muniz for a long

time selling drugs, tr. 67, 172, 190, 191, 198, and that he was

dependable. Tr. 67.

M. THE DECLARANT'S AVAILABILITY

Muniz was in the custody of the government prior to

trial. Pretrial tr. 21. He had already plead guilty. Id. He

had already been sentenced. No appeal was pending. id. The

time for appeal had expired over 30 days earlier. The government

made no attempt at all to produce Muniz. The only evidence of

Muniz's unavailability is a second-hand representation by the

prosecutor. The prosecutor told the trial court that defense

counsel had said that Muniz' lawyer had said he would advise

Muniz to "exercise his rights" if called by the defense. Pre-

trial Tr. 21. There is no evidence of any inquiry by the Govern-

ment J

There is no evidence that any inquiry at all, by the

prosecution or by the defense, took place after Muniz pleaded

guilty, received a sentence and waived appeal.

To the best of appellate counsel's knowledge, Muniz was and is

incarcerated in federal prison in Oxford, Wisconsin, less than

200 miles from Chicago. The Government brought to Chicago its

informant, Pena, who lives in Westlaco, Texas. Westlaco is

over 1400 miles from Chicago, in the southernmost tip of Tex-

as. Martinez was also available to the Government. She

pleaded guilty prior to Sanson's trial.

M. THE VERDICT

Defense counsel argued at trial that insufficient evi-

dence existed to tie Sanson to the conspiracy, independent of

co-conspirator Muniz's hearsay declarations. The trial court

incorrectly analyzed the independent evidence "in the light most

favorable to the jury, as I must," and declared it a jury ques-

tion. Tr. 220, 223-2248 The jury was not instructed to ignore

the hearsay itself when deciding.

After deliberating, recessing for the evening, and de-

liberating the next day, the jury returned a verdict of guilty on

January 6, 1983. A judgment of conviction was entered on the

Same day. Or February 11, 1983, petitioner's motion for a new

trial was denied and petitioner was sentenced to ten years im-

prisonment. Simultaneously, petitioner's request to file notice

of appeal and to proceed in forma pauperis were granted. Notice

of appeal was filed on February 17th, 1983.

N. THE APPEAL

On appeal with different counsel, Sanson argued that the

Government's complete failure to even attempt to call Muniz vio-

lated Sanson's Right of Confrontation. Three other icsues were

argued, unrelated to this petition. The Court of Appeals decided

on January 18, 1984 that the co-conspirator hearsay exclusion,

Rule 801(d)(2)(E), Fed. R. Evid., satisfied the Confrontation

Clause, and that Muniz was adequately shown to be unavailable.

This petition followed.

6 The Government admitted on appeal that the judge applied the

wrong legal standard. The Court of Appeals, relying on the

"slight evidence" rule, found it harmless error. See United

States v. West 670 F.2d 675 (7th Cir.), cert. denied, 457

U.S. 1124 (1982).

-1l1-

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW DIRECTLY CONFLICTS WITH THE

DECISIONS OF SIX OTHER COURTS OF APPEALS AS TO THE

PROPER INTERPRETATION OF THIS COURT'S OPINION IN

OHIO V. ROBERTS.

The Confrontation Clause requires that the accused be

given the opportunity to expose falsity in statements’ used

against him. This Court has found that when the accusing testi-

mony is otherwise admissible hearsay, the Clause requires a two-

pronged showing: (a) the accuser's statements must be reliable,

and (b) the accuser must not be available to the Government.

Ohio v. Roberts, 448 U.S. 56 (1980); Barber v. Page, 390 U.S. 719

(1968).

The Court of Appeals below found that the evidentiary

standard of Rule 801(d)(2)(E), dealing with co-conspirator hear-

say, satisfies both constitutional requirements simultaneously.

(See p. A-11 of the Aeoendis hereto.) The Court of Appeals ex-

plicitly embraces this per se rule -- that Rule 801(d)(2)(E)

universally satisfies the Confrontation Clause -- and proscribes

a separate case-by-case constitutional analysis.

The opinion below raises important doctrinal questions

of interpretation. The opinion below rests on U.ited States v.

Papia, a Seventh Circuit case decided before this Court issued

Ohio v. Roberts. The Seventh Circuit has by its silence found

that Roberts did not overrule Papia's per se finding. Yet Courts

of Appeals abandoning the per se rule have done so on the

strength of Roberts. Compare United States v. Ammar, 714 F.2d

238, 254-57 (3rd Cir. 1983)(case-by-case analysis) and United

States v. Peacock, 654 F.2d 339 (5th Cir. 1981)(case-by-case

analysis) with United States v. Kenney, 462 F.2d 1205, 1218 (3rd

Cir. 1972) (presuming no Sixth Amendment violation where evi-

athe

dentiary standards satisfied) and United States v. Goodman, 605

F.2d 870, 877-78 (5th Cir. 1979)(same). This doctrinal dichoto-

my, directly interpreting an opinion of this Court, demands fur-

ther interpretation by this Court.

The Seventh Circuit has conceded that its interpretation

of the Confrontation Clause directly conflicts with that adopted

by the Eight and Ninth Circuits. See United States v. Papia, 560

F.2d 827, 836 n.3 (7th Cir. 1977), citing United States v. Kel-

ley, 526 F.2d 615, 620-21 (8th Cir. 1975), cert. denied, 424 U.S.

971 (1976); United States v. Snow, 521 F.2d 730, 734-36 (9th Cir.

1975), cert. denied, 423 U.S. 1090 (1976). The Eighth and Ninth

Circuits prohibit a per se rule. Since the Seventh Circuit first

acknowledged the conflict, the ‘econd, Tiird, Fifth and Tenth

Circuits have followed the lead of the Eig'ith and Ninth Circuits,

contradicting the opinion below and widening the rift. See Unit-

ed States v. Ammar, 714 F.2d 238, 254-57 (3rd Cir. 1983)(applying

case-by-case analysis); United States v. Peacock, 654 F.2d 339,

349 (5th Cir. 1981)(separate analysis on strength’ of Roberts) ;2

United States v. Wright, 588 F.7’4 31 (2nd Cir. 1978) (recognizing

split in Circuits); United States v. Davis, 578 F.2d 277 (10th

Cir. 1978).

Only the First Circuit has agreed with the Seventh Cir-

cuit in adopting a per se rule. See Ottomano v. United States,

468 F.2d 269, 273 (1st Cir. 1972), cert. denied, 409 U.S. 1128

(1973). See also United States v. Lurz, 666 F.2d 69 (4th Cir.

1981) (failing to analyze the constitutional issue separately).

The Ninth Circuit recently emphasized its disapproval of the

9 Peecock is binding precedent on the Eleventh Circuit also.

See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir.

Haat (adopting Fifth Circuit precedent through September 30,

atte

First Circuit approach. See United States v. Perez, 658 F.2d

654, 660 n.5 (9th Cir. 1980). The Third Circuit, avoiding a per

se rule, recognizes the First Circuit case as contradicting the

majority view and contrasts the First, Fourth and Seventh Cir-

cuits with the Second, Fifth and Ninth Circuits. See United

States v. Ammar, 714 F.2d 238, 254-256 (3rd Cir. 1983). Thus,

courts on both sides of the issue have recognized the conflict as

deep and direct.

The contradiction cannot be more sharp. This constitu-

tional conflict between most of the Courts of Appeals justifies

the grant of certiorari to review the judgment below.

II. THE OPINION BELOW EMASCULATES THIS COURT'S OPINION

IN OHIO V. ROBERTS.

A. THE OPINION BELOW ABANDONS THE TWO-PRONGED

TEST REQUIRED BY ROBERTS.

While reaffirming the per se rule that the evidentiary

standard universally satisfies the Confrontation Clause, the

Court of Appeals below committed further error., The Court found

that, on the facts of this case, the requisite constitutional

unavailability was shown. See p. A-11 of the Appendix hereto.

In so finding, the opinion below directly contradicts this

Court's opinion in Ohio v. Roberts, 448 U.S. 56 (1980).

This Court has found that the Confrontation Clause anal-

ysis must be two-pronged. The accusing hearsay must be shown to

be both (1) reliable and (2) necessary. See Ohio v. Roberts, 448

U.S. 56, 65-66 (1980). The second prong, necessity, may be shown

by the declarant's unavailability. 448 U.S. at 65. Unavailabil-

ity, the Government's burden, can be shown by good faith effort.

The ultimate question is whether the witness

is unavailable despite good-faith efforts

undertaken prior to trial to locate and pre-

sent that witness. As with other evidentiary

-14-

proponents, the prosecution bears the burden

of establishing this predicate.

448 U.S. at 74-75 (emphasis added).

The opinion below does not require a good faith effort

on the part of the prosecution. It requires no effort. The

Government here made no effort. The prosecutor merely repeated

to the trial court what defense counsel had heard from declar-

ant's attorney about the advice that declarant's attorney might

give the declarant. By endorsing the blanket principle that Rule

801(d)(2)(E), Fed. R. Evid., automatically satisfies the Confron-

tation Clause, the opinion below rejects the necessity requlre-

ment. Therefore it abandons the two-pronged constitutional anal-

ysis of Roberts and thus runs afoul of this Court.

B. THE OPINION BELOW VIOLATES ROBERTS BY COLLAPSING

THE CONSTITUTIONAL ANALYSIS INTO THE EVIDENTIARY

ANALYSIS.

This Court has insisted thas some otherwise admissible

hearsay evidence will be objectionable on Confrontation Clause

grounds. Thus this Court has required the two-pronged constitu-

tional analysis to be separate from the evidentiary analysis.

See Ohio v. Roberts, 448 U.S. 56, 63-64 (1980). The opinion

below conveniently uses the evidentiary test to satisfy the con-

stitutional requirement, thus collapsing the inquiry into only

one evidentiary test. This contradiction between the Supreme

Court and a Court of Appeals deserves review and reversal.

The Court of Appeals below has created a fundamental

doctrinal conflict. Even if the opinion below had adopted a

case-by-case analysis, anslyzing the constitutional question

separately and prong by prong, there would still be a split among

the Circuit Court of Appeals. The Seventh Circuit rests its

finding of reliability on Roberts. See p. A-11 of Appendix here-

otSn

to. Thus, although this Court refers in Roberts only to two

"firmly rooted" hearsay expectations -- dying declarations and

cross-examined prior trial testimony -- 448 U.S. at 66 n.8, the

Seventh Circuit finds the co-conspirator hearsay provision also

"firmly rooted.” See United States v. Kendall, 665 F.2d 126, 133

(7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982) (relying

summarily on Papia). The Ninth Circuit finds just the opposite:

co-conspirator declarations are inherently suspect. See United

States v. Fielding, 630 F.2d 1357, 1367 n.11 (9th Cir. 1980)

(co-conspirator statements "not tested by traditional crucibles

of reliability"). In Fielding, the declarants were attempting to

strike a narcotics bargain with sn undercover agent and an in-

former. The Ninth Circuit found that the declarations were

almost entirely recitations of past events -- nar-

ratives of past importation schemes and business

relationships, and were in part motivated by a

desire to "impress" the informer who was posting as

a big dealer looking for a deal. Thus (the declar-

ant) had every reason to exaggerate his ability and

experience (with the defendant).

630 F.2d at 1369. Fielding reversed the conviction, citing the

violation of the Confrontation Clause as "clear constitutional

error." This Court's opinion in Roberts is the fundamental au-

thority relied upon in Fielding. This conflict between a Court

of Appeals on the one hand and six other Courts of Appeals and

this Court on the other hand justifies the grant of review.

III. THE OPINION BELOW RAISES IMPORTANT POLICY CONSIDER-

ATIONS ARISING OUT OF A CONSTITUTIONAL ISSUE.

By its decision below, the Seventh Circuit ecrystellizes

several policy questions unanswered by this Court. Among the

questions are these:

(1) How should the constitutional requirement of show-

ing a good faith effort be reconciled with the costs to the Gov-

arte

ernment of making witnesses available? In Ohio v. Roberts, su-

pra, the Government had attempted to serve the declarant with

five subpoenas and interviewed her mother to determine her where-

abouts. This Court found that effort to satisfy the good faith

standard. In this case, no effort was found sufficient. To what

extent should the cost of transporting witnesses in custody pre-

vent the satisfaction of a constitutional right? Should the

Government's good faith burden increase as the hearsay becomes

more conclusively damning or as reliability appears weaker? See

United States v. Fielding, 630 F.2d 1357, 1367 n.11 (9th Cir.

1980) ("it appears to this panel that the necessity requirement

is more compelling where co-conspirator declarations are in-

volved").

(2) Can the reliability prong of the Roberts analysis

be constitutionally satisfied solely by a presumption of relia-

bility drawn from alleged participation in a conspiracy where the

finding of participation is in turn based on the "slight evi-

dence" rule? Should the showing of reliability be stronger when

the evidence of participation is slighter? Here, petitioner did

not contest the existence of the conspiracy. The sole issue at

trial was his participation in that conspiracy. The Seventh

Circuit presumed petitioner's knowing participation. It presumed

reliability for Confrontation Clause purposes when participation

was shown. Finally, it presumed unavailability where a declarant

was easily brought forward but hinted at the privilege against

self-incrisination. '°

10 Indeed, if Muniz had appeared, would he have been entitled to

assert the privilege at all, or was he protected by the Double

Jeopardy Clause? See Pillsbury Co. v. Conboy, 103 S. Ct. 608,

619 n. 1 (1983) (Marshall, J., concurring).

-17-

(3) Although this Court had hoped to avoid articulating

a strict rule for each of the hearsay exceptions, see Ohio v.

Roberts, 448 U.S. at 66 n. 9, does the wide division between the

Circuits' interpretation of Roberts require this Court to further

define "the basic interests to be accommodated" when dealing with

co-conspirator hearsay? These policy questions urgently need the

attention of this Court.

Moreover, the correctness of the decision below is open

to serious question. Here, the declarant had every motive to

exaggerate the size and nature of his drug business, and to de-

scribe a mere drug customer as a "courier." Declarant Muniz was

trying to close one last deal as his trial approached. The cus-

tomer, petitioner Sanson, was never present to contradict Muniz

when the statements were made. Moreover, no direct evidence of

Muniz's actual drug business was introduced. Cross-examination

of the declarant here would have exposed Muniz’ business for what

it was and made the crucial difference in the jury's view of

petitioner's relationship with Muniz. Indeed, the Ninth Circuit

has found that where the declarant was in part motivated to im-

press an informer and had reason to exaggerate, that his hearsay

declarations cannot meet the reliability test of the Confronta-

tion Clause. See United States v. Fielding, 630 F.2d 1357, 1369

(9th Cir. 1980) (reversing narcotics conviction). Blanket reli-

ance on the presumption of a “community of interests" among co-

conspirators under the Confrontation Clause cannot be justified

where knowing participation in a conspiracy can be shown by

"slight evidence", and where the sole issue at trial is not the

existence of the conspiracy but petitioner's knowing participa-

tion.

-18-

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Seventh Circuit.

Respectfully submitted,

BL PNAS lL terse

Clifford L. Weaver

Charles L. Glick

Attorneys for Petitioner

Burke, Bosselman, Freivogel,

Weaver, Glaves & Ryan

55 West Monroe Street

Suite 800

Chicago, Iliinois 60603

(312) 263-3600

a hal

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APPENDIX

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UNITED STATES -__osrucr.. COURT

eaten NORIMENRN _ = District of — ILLINOIS. ___

«ss sceene Division

THE UNITED STATES OF AMERICA

tieedewaaa JULIO ROSADO MNNJZ,_ __.__ e

NEREIDA MARTINEZ-DAVILA and

i | | | wee meen MEE ited andes

Whee INDICTMENT

RE VIOLATION; Title 21, United States Code,

a Sections 846 and 841 (a) (1)

wh

A true bill, Lot Zo

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- a -- day

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———- —

«Te ast 17 1982

om

faa B2 SEP 17 PW2STUART CUNNINGHAM

UNITED STATES OF A‘ERICA zy se RN Fo cr s7g CLERK, U. S. DISTRICT COURT

v. ) “Viglation:. fitle 2],

$ ) United States Code;

JULIO ROSADO MUNIZ, Sections 846 and 84] (a) (1)

ene MARTINEZ~DAVILA and

JUDGE LEIGHTON

The AUGUST 1982 GRAND JURY charges:

From on or about August 12, 1982, to on or about August 18, 1982, in the

~~

Norzhern District of Illinois, Eastern Division, and elsewhere,

JULIO ROSADO MNIZ,

NEREIDA MARTINEZ-DAVILA and

ALLEN SANSON,

Gefencants herein, -id combine, conspire, confederate and acree together,

ith each other, anc with others unknown to the grand jury, to commit certain

offenses acainst the United Sfates, namely:

(a) to knowincly ané intentionally possess with intent to distribute

heroin, a Schecule I Controlled Substance, in violation of Title 21, United

States Code, Section 841(a) (1);

(>) to knowingly and intentionally distribute heroin, a Schedule I

Controlled Substance, in violation of Title 21, United States Code, Section

841 (a) (1); x

(c) to knowingly and irtentionally possess with intent to distribute

cocaine, a Schedule II Controlled Substance, in violation of Title 21, United

States Coce, Section 84l(a) (1); and,

(a) to knowingly and intentionally distribute cocaine, a Schedule II

Controlled Substance, in violation of Title 21, United States Code, Section

841 (a) (1).

In furtherance of and to effect the objects of s*id conspiracy, defendants

aid and cormitted the following:

OVERT ACTS

1. Qn or about August 12, 1982, defendant JULIO ROSADO MINIZ telephoned

a confidential informant of the Drug Enforcement Administration in McAllen, Texas,

to discuss the purchase of heroin.

2. On or about August 16, 1982, at 3123 Birchwood Avenue, in Chicago,

Gefendant JULIO ROSADO MUNIZ met with ‘said confidential informant. MNIZ

asked to purchase four kilosrams of heroin.

3. Qm or about August 16, 1982, defendant JULIO ROSADO MWNIZ provided a

sample of cocaine to said confidential informant.

4. MQ or about Avgust 16, 1982, defendant JULIO ROSADO MINIZ and NEREIDA

MARTINEZ-DAVILA met with Special Agent Leo Arreguin of the Drug Enforcement ~

Aéministration and said confidential informant anc discussed the purchase of four

kilosrams of heroin.

5S. Om August 13, 1982, at Chicago, defendant JULIO ROSADO MINIZ telephoned

said confidential informant to discuss the purchase of four kilograms of heroin.

6. Gm Avcust 18, 1982, defendants JULIO FOSADO MINIZ and NEREIDA MARTINEZ-

DAVILA met with Special Agent Arreguin and said confidential info~mant at 3123

Birchwooc, in Chicago.

7. Qn August 18, 1982, defendants NEREIDA MARTINEZ-DAVIIA and ALLEN ‘SANSON

met in the vicinity of Touhy and Kedzie Avenes, in Chicago.

All in violation of Title 21, Mnited States Code, Section 846.

COUNT TWO re

The AUGUST 1982 GRAND JURY -further’ charves:

Qn or about August 17, 1982, at Chicago, in the Northern District of

Illinois, Eastern Division,

JULIO ROSADO MNIZ,

Gefencant herein, did knowingly and intentionally distribute approximately 24

grams of a mixture containing cocaine, a Schedule IT Controlled Substance;

In violation of TitJe 21, United States Code, Section 841 (a) (1).

COUNT THREE

The AUGUST 1982 GRAND JURY further charges:

Cn or about August 18, 1982, at Chicago, in the Northern District of

Zliinois, Eastern Division,

JULIO ROSADO MINIZ and

NEREIDA MARTINEZ-DAVILA,

defenéants herein, did knowingly and intentionally possess with intent to

@istribute aporoximately 64 grams of a mixture containing cocaine, a Schecule

II Controlled Substance;

In violation of Title 21, United States Code, Section 841 (a) (1).

A TRUE BILL:

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in the presence of the attorney fer the governmem =v. ALsz!. Fans I :

the defendant apc 2ared m perion On ins ae 02 11 83 |

Lund WITHOUT COUNSEL Mowe Ge ame coved Sotenten of ng amews med med whee Be ftRtes oT

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. ie ay GUILTY. Sates tog. Be

a | nas been conmcted as charged.ol the offeme(s)of-yenowingly-—willfully and unlawfslly

FINDING possessing and distributing, a Schecule I Controlled Substance ané a

wocusat ( Schedule II Controlledé-Substance;“* -

. . ~~. . "ot mw tet —

——— . —_ °3

SS violat:on of Title 21, United States Code, Section 646 Lat

oe ac _-_=- ee ee

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Ss tne court mare wnetnes SelenGOnt RAG AAYDUNE 10 Ley WEY RADEON Hewid NOt be SrOneUmcEE Breas Ne wullcwmi couse 18 We Contras

2! em WhOwn. © ADDEAEE Le UNE Court, ThE COUT BOrdEED the Oafenaent guilty a cRaTERd and COnvicie’ ene ereeres hat The-detoneen! 4

< ma reDy (OM Meliss Lo Ihe Gustedy Of Ge Anemney Genes & hn authored ee iste fer engrne ™ for a pores of TEN (10)

YEARS. ms : 4

SENTENCE FURTHER ADJUDGED-that sentence is imposed under Title 18, Sectio-

OR > 4205 (b) (2)

PROBATION a so “ x oe -

ORDER a ee oe *. i Se Las

te

SPECIAL _-- ec io Socal

COuDITIONS re eae $ z2¢

oF a sudla sles absdlliemioaaiasin _ .. “= yy ee a ee

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ADDITIONAL : - aumaumeere «am ata a SS oc 5

CONDITIONS | * S0¢tiOn to the specie! concen Of pression enoeene . & heresy Ersered that the general cond.tiens Of probation wet Oui oF IM

feverve ate Of thn woqment be wmpense. The Court may change the Genguioms Of prenetuen. reduts OF Eatens Un pened Of pressUEN nsw

oF shy Ge Gunn the Brebatien fered GF within » Mammum preseuen GeNed of Tee years Zermetiet By lew, MEY KEET s werremi Ene H~Oee

prouaTios fore - a Surg Dt sreee!on pened

» The court Orders ComMmatment § Whe Custesy of the Artomey Geners: and recommends, GRR ARR Gm,

Lexington, Kentucky, where defendant may be treated “ * Sor Bem Con owe

cometwent | fF Rarcotac addiction. snd commamen to we (5. ihe

Rtcomuts. . Ww & ormer eusies offer

eanon Ne oe

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s/s George Mi Leisypton Feb. 11,1983

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Reciy \-20-24

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

(ARGUED OCTOBER 21, 1983) UNFUBLISHED ORDER

January 18 84 RCT TO BE CITED

. ia ‘ - PER CIRCUIT BULE 85

Before

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. YOEL M. FLAUM, Circuit Judge

bit

4

Appeal from the United

UNITED STATES OF AMERICA, States District Court

Plaintiff-Appellee, for the Northern

District of Illlinois,

No. 63-1324 Vs. Eastern Division.

4 No. 82 CR 678

ALLEN SANSON, / George N. Leighton,

Defendant-Appellant. Judge.

ORDER

Defendant Allen Sanson asks this court to reverse his

conviction for conspiring to possess with intent to distribute

and conspiring to distribute heroin and cocaine in violation of

21 U.S.C. § 846 (1976). The defendant argues that admission at

trial of his statements at the time of arrest regarding an

earlier arrest was improfer, that “expert” testimony from an

agent regarding distribution of cocaine was improper, that

statements of a co-conspirator should have been excluded from

the trial as inadmissible hearsay, and that the government's

failure to call the co-conspirator as a witness violated the

Gefendant's sixth amendment confrontation right. Because we

believe that the district judge properly exercised his

Giscretion in each instance, we affirm the conviction.

I

Drug Enforcement Administration (DEA) agents in August 1982

investigated Julio Muniz and his wife, Nereida Martinez-Davila

(Martinez). The investigation culminated on August 17, 1982,

when Special Agent Arreguin met Muniz and Martinez through a

confidential informant.

No. 83-1324 Page 2

On August 17. Agent Arreguin and the informant went to

Muniz's house for dinner. Agent Arreguin posed as a friend of

the informant whc could supply heroin to a willing buyer.

Muniz agreed to buy $30,000 of heroin. The next morning Muniz

called the informant to say that he had 615,000 toward the

purchase of the heroin and more money on the way. When Agent

Arreguin and the informant arrived at Muniz's house shortly

thereafter, Muniz told them that a pan who had worked a long

time with him would bring money soon.

When the delivery pan did not arrive, Muniz called someone

who explained that the delivery man was late because he was

attending his grandmother's funeral. Muniz placed several

other telephone calls while he and the others waited for the

delivery pan to bring money. First, Muniz called the delivery

man's wife who told them to expect a delivery soon. Next, he

callec another potential heroin purchaser. Third, he called

the delivery man's wife back.

Several other maneuvers led to Martinez leaving the house

to pick up the poney from the delivery man. She drove to a

local grocery store, went inside, exited a few minutes later,

anc then drove back to Muniz's house. Martinez presented Agent

Arreguin with a bundle of money.

After Martinez returned to the house, the informant left

the house on the pretense of picking up the heroin, but instead

notified waiting surveillance agents, who approached the

house. The agents and Agent Arreguin then arrested Muniz.

At the time of the arrest, Agent Arreguin answered a

telephone call from a man wanting to know if everything was all

right. The caller said that he had sent the money with

Martinez. Meanwhile, the informant had driven to the sane

local grocery store as had Martinez, and there spotted Defendant

Sanson using the telephone. After Ganson completed his call,

the informant asked him if he knew Muniz. Sanson said yes, and

in response to a question from the informant said that he had

given Martinez money and was waiting for heroin.

Seon, Agent Arreguin arrived at the scene and discussed the

heroin transaction with Sanson. DEA agents arrived shortly

thereafter and arrested Sanson. At the moment of the arrest,

which was conducted by an agent who had arrested Sanson before,

Sanson said, “Oh, not again. I knew this was going to happen.”

A jury found the defendant guilty after a two-day trial.

The district court denied a motion for a new trial and sentenced

the defendant to ten years imprisonment.

No. 863-1324 Page 3

Il

A. Admission of Statements Regarding Earlier Arrests

‘

The defendant argues that his statements uttered shortly

before and after his arrest should not have beer admitted into

evidence because they seriously prejudiced the jury against hin.

Tne government counters by arguing that the statements indicate

the defendant's state of mind and his intent to conspire to

possess and distribute heroin.

We note initially that rulings on the admissibility of

evidence rest within the trial court's broad discretion and will

be reversed only when the court clearly abuses that discretion.

United States v. Brown, 688 F.2d 1112, 1115 (7th Cir. 1982).

The defendant has not made this showing.

Federal Rule of Evidence 404(b) provides that evidence of

other crimes is inadmissible to show character, but may be

admissible for other purposes including sotive, intent,

preparation, or knowledge. The evidence at issue here was

admissible to counter the defense theory that the defendant

merely craved a “fix.” The testimony meets a Rule 404(b)

exception as evidence of the defendant's intent to join a

conspiracy. The defendant's statements when he was arrested

tended to show that he knew of a conspiracy and intended to be

@ part of that conspiracy.

Once the district court determined that the proffered

testimony met a Rule 404(b) exception, it was within the

court's discretion to admit the testimony into evidence after

determining that its probative value outweighed any possible

prejudice. We find no abuse of discretion.

B. Admission of Investigating Agent's Testimony

Agent Arreguin testified that the circumstances of the

Gefendart's attempted drug purchase indicated an intent to

Gistribute. The defendant contends that this testimony did not

qualify as expert testimony under Federal Rule of Evidence 702,

ané thus should not have been admitted at trial. °- This

contention pust fail for two reasons. First, the defendant did

not object at trial either to Agent Arreguin's qualifications

to testify or to the testimony itself. Failure to object to

the admissibility of evidence at trial ordinarily precludes an

assignment of error on appeal. United States v. Jefferson, 714

F.2d 689, 693, 695 (7th Cir. 19 leged

error does not rise to constitutional magnitude, we will not

consider the defendant's challenge in the absence of any

objection at trial.

No. 83-1324 Page 4

Second, the district court's decision to admit the testimony

in any event was not clearly erroneous, and therefore must be

affirmed. See, e.c., United States v. Thomas, 676 F.2d 531, 538

(llth Cir. I962) (special agent allowed to testify as expert on

the modus operandi of drug couriers). Agent Arreguin clearly

possessed at least the minimum amount of expertise to qualify

under Rule 702. Additionally, the testimony regarding the

structure of the narcotics trade was relevant to placing the

defendant in the sale and distribution chain. The district

court committed no error in allowing the testimony.

C. Admission of Co-conspirator's Statements

The defendant next argues that the district court improperly

applied United States v. Santiago, 582 F.2d 1128 (7th Cir.

1978), to adrit statements by Muniz which implicated the

defencant in the distribution scheme. The defendant concedes

that the Muniz statements were made during and in furtherance

of a conspiracy to distribute heroin. The defendant clains,

however, that the government did not prove by a preponderance

of independent evidence that the defendant and Muniz were

co-conspirators. Once again, we believe the district court

acted properly in admitting the testimony.

Once a conspiracy is established, only slight evidence is

needed to link a particular participant to the conspiracy.

United States v. West, 670 F.26 675, 685 (7th Cir.), cert.

denied, 102 S. Ct 2944 (1982). The circumstances and timing of

the defendant's presence while the agents were investigating,

and the defendant's own statements before arrest ané when he

was arrested, constitute sufficient - evidence to link the

defendant to a conspiracy with Muniz. Accordingly. although

the district court stated one item of evidence incorrectly when

waking its Santiago findings, the admission of the Muniz

statements does not constitute reversible error.

The defendant presses another argument with regard to the

Muniz statements: that they are inherently untrustworthy and

“me defendant also argues that the district court

improperly used the statements of the co-conspirator as

evidence of the defendant's link to the conspiracy so that the

co-conspirator's testimony could be presented to the jury.

This type of bootstrapping was recognized as improper in United

States v. , 718 F.24 630, 836 (7th Cir. 1983). We reach no

judgment on whether such an error was committed here in light

of our determination that sufficient independent evidence links

the defendant to the conspiracy. That independent evidence

renders any error harmless.

No. 63-1324 Page 5

therefore inadmissible. This contention is without merit. The

evidence linked Muniz and the defendant as co-conspirators, and

Muniz's statements in furtherance of that conspiracy were made

within the community of interests that suggests the inherent

reliability which forms the basis of Federal Rule of Evidence

801(4)(2)(E).

D. Sixth Amendment Confrontation Right

The defendant's final argument is that admission of the

Muniz statements when Muniz himself was available to testify

violated the defendant's sixth amendment right to be confronted

with the witnesses against hin. Before hearsay evidence is

admissible, the prosecution must satisfy the requirements of

the Confrontation Clause by demonstrating that the declarant is

unavailable and that the proposed testimony is reliable. Ohio

v. Roberts, 446 U.S. 56 (1980). As noted above, the Muniz

statements are reliable as within the community of interests of

the conspirators under Rule 801(d)(2)(E). Te only issue,

therefore, is whether the government adequately showed that

Muniz was unavailable to testify.

First, this court has held consistently that statements

admitted under Rule 601(4)(2)(E) do not infringe upon

Confrontation Clause protections. See, @-G-, United States v.

Kendall, 665 F.2d 126, 133 (7th Cir. 19 , cert. deniec,

U.S. 1021 (1982). Statements that qualify under Rule

801(4)(2)(E) are not hearsay and are inherently reliable; they

generally do not threaten the Confrontation Clause protections

considered in Ohio v. Roberts. Second, the district court

ruled that Muniz was unavailable on the strength of

representations from the government that Muniz refused to talk

and representations from the defendant's lawyer that Muniz was

counseled by his lawyer to invoke his fifth amendment privilege

and refuse to testify. Under the particular circumstances of

this case, including the character of the Muniz statements

admitted and the representations from lawyers for both sides

that Muniz was unavailable to testify, the district court

properly admitted the Muniz statements into evidence.

E. Conclusion

Te district court ruled correctly in each of the instances

raised on appeal by the defendant. Accordingly, we affirm the

conviction.

AFFIRMED.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983 83 - 6454

No.

ORIGINAL j ALLEN SANSON, Petitioner

° Vv.

UNITED STATES OF AMERICA, Respondent

MOTION TO PROCEED IN FORMA PAUPERIS

Alexander L. Stevas, Clerk

Petitioner Sanson moves this Court for an order pursuant

to 18 U.S.C. §3006 A(d)(6) and Rule 46 of this Court, permitting

him to proceed in forma pauperis. In support of his motion,

movant states the following:

1. Petitioner was represented in the Court of Appeals

by court-appointed counsel pursuant to the Criminal Justice Act,

18 U.S.C. §3006 A. Counsel was appointed on March 7, 1983.

Petitioner moved the District Court for permission

to proceed in forma pauperis on February 11, 1983. The motion

was granted on the same day.

LF Pursuant to 18 U.S.C. 3006A(d)(6) and Sup. Ct. Rule

46 no affidavit accompanies this motion.

Respectfully submitted,

ody for Petitioner-Movant

Clifford L. Weaver

Charles L. Glick

Burke, Bosselman, Freivogel,

Weaver, Glaves & Ryan

55 West Monroe Street

Suite 800

Chicago, Illinois 60603

(312) 263-3600

ele