Petitioners Brief — Bourjaily v. United States

[Supreme Court, U.S.

FILED

(\) DEC 29 1986

No. 85-6725 JOSEPH F. SPANIOL, JR.

steceianiiiaisitilaes emetaiommmmidia teen

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1986

WILuiaAM J. BourJAILy, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF FOR PETITIONER

JAMES R. WILLIS

(Counsel of Record)

Suite 610, Bond Court Building

1300 East Ninth Street

Cleveland, OH 44114

(216) 523-1100

JAMES M. SHELLOW

Shellow, Shellow & Glynn, S.C.

222 East Mason Street

Milwaukee, WI 53202

(414) 271-8535

STEPHEN ALLAN SALTZBURG

Professor of Law

University of Virginia

School of Law

Charlottesville, VA 22901

(804) 924-3520

Counsel for Petitioner

$s

PRESS OF RAM PRINTING, HYATTSVILLE, MID 20781 (301) 864-6662

CC

QUESTIONS PRESENTED

1. Whether, in order to admit an alleged co-conspir-

ator’s declarations against a defendant under Federal

Rule of Evidence 801 (d)(2)(E), the court must determine

by independent evidence a) that a conspiracy existed, and

b) that the declarant and the defendant were members of

this conspiracy?

2. Assuming that the court must make these deter-

minations, upon what quantum of independent proof must

they be based?

3. Whether, as a requirement for the admission of a

co-conspirator’s statement against a defendant, the court:

must assess the circumstances of the case to determine

whether the statement carries with it sufficient indicia of

reliability?

3

TABLE OF CONTENTS

QUESTIONS PRESENTED. ...----+--sseecrrrtenreeet?

TABLE OF CONTENTS ....-----eeecesssersssssstttt

TABLE OF AUTHORITIES.....----s-eeeeeresrrertttt

PROCEEDINGS BELOW......---seeeeeerrrrserrsstt

JURISDICTION. .....----eecceccerceeseeresesseseee®

CONSTITUTIONAL AND STATUTORY PROVISIONS.....--

STATEMENT OF THE CASE .....----sseeerrrerrrettt

SUMMARY OF THE ARGUMENT ...----++seeeerercttt’

ARGUMENT «2... cc cccccccccescceceesccesseserseee®

I.

II.

In ORDER To ADMIT AN ALLEGED Co-CONSPIR-

ATOR’S DECLARATIONS AGAINST A DEFENDANT

UNDER FEDERAL RULE OF EVIDENCE 801 (d)

(2)(E), THe Court Must DETERMINE By INDE-

PENDENT EVIDENCE A) THAT A CONSPIRACY

ExIsTeED, AND B) THAT THE DECLARANT AND

THE DEFENDANT WERE MEMBERS Or Tus Con-

SPIRACY oc ccccccccccccccccsscccesssccescsses:

A. The Decision Whether To Admit Co-Conspir-

ator Declarations Requires A Trial J udge To

Engage In Preliminary Fact Finding Under

Fed. R. Evid. 104 (a) ....----eee ee eeeeeees

B. The Trial Judge Must Determine That A Con-

spiracy Existed And That The Declarant And

e Defendant Were Members Of The Conspir-

acy As A Condition Of Admitting Evidence Of

A Co-Conspirator’s Statement U nder Fed. R.

Evid. 801 (d(2E) .....--- eee ete e eres

C. The Trial Judge Also Must Determine That A

Co-Conspirator’s Statements Were Made Dur-

ing And In Furtherance Of A Conspiracy

Before Admitting The Statements Against A

Defendant ........-..ceeecceeeeseeecseees

THE GOVERNMENT Must PERSUADE THE TRIAL

JupcE By A PREPONDERANCE OF THE [INDEPEND-

ENT EVIDENCE THAT It Has MET THE REQU!RE-

MENTS For ADMISSION OF A Co-CONSPIRATOR 'S

STATEMENTS AGAINST A CRIMINAL DEFENDANT

A. This Court Has Declared That There Must Be

Proof Aliunde Of Conspiracy ......----++++:

_-

Nyunrerre < Parr

~

13

14

14

iil

Table of Contents Continued

B. The Government Must Prove To The Trial

Judge By A Preponderance Of The Evidence

That The Requirements Of Rule 801 (d)(2)(E)

Have Been Satisfied .............seeeeeees

C. The Government Must Prove The Existence Of

A Conspiracy And The Membership Of The

Declarant And The Defendant By A Prepon-

derance Of The Independent Evidence ......

Ill. AssumING THAT THE TRIAL JUDGE FINDs By A

PREPONDERANCE OF THE INDEPENDENT EvI-

DENCE THaT A CoNSPIRACY EXISTED THAT

INCLUDED THE Co-CONSPIRATOR AND THE

DEFENDANT, AND THE JUDGE ALSO FINDs THAT

THE Co-CoNSPIRATOR’S STATEMENT Was MADE

DurING AND IN FURTHERANCE OF CONSPIRACY,

GENERALLY No ADDITIONAL RELIABILITY

DETERMINATION Is REQUIRED By THE CON-

ee ee ee ere

A. The Hearsay Rule And The Confrontation

Clause Protect Similar Interests, But Are Not

Identical In Their Scope .............-++--

B. Dutton v. Evans Establishes That There May

Be Confrontation Problems Even Though A

Statement Qualifies For Admission As A Co-

Conspirator’s Statement ...........--.+5::

Sc. uatveveké cuuvesiuweseenens

Page

16

20

iv

TABLE OF AUTHORITIES

Cases Page

Bruton v. United States, 391 U.S. 123 (1968).......... 38

California v. Green, 399 U.S. 149 (1970)........... T, 32-33

Colorado v. Connelly, ___. U.S. ——, 107 S. Ct. 515

ee hd ee de ee én wa 17-18, 38

Clune v. United States, 159 U.S. 590..............65. 12

Dutton v. Evans, 400 U.S. 74 (1970). ............ 32, 33-37

Fiswick v. United States, 329 U.S. 211 ............... 13

Glasser v. United States, 315 U.S. 60

SA 44 cncuadasdstewebenkes 14-15, 18, 20, 26, 28, 31

Jackson v. Denno, 378 U.S. 368 (1964). ............2.. 17

Krulewitch v. United States, 336 U.S. 440 ............ 13

Lego v. Twomey, 404 U.S. 477 (1972). .......... 6, 16-18, 20

Lee v. Illinois, ___ U.S. —__, 106 S. Ct. 2056

Ds educcalekeunse dente ns die eeseansin 29, 37-38

Logan v. United States, 144 U.S. 268..............4.. 15

Lutwak v. United States, 344 U.S. 604 (1953) ......... 12

Minner v. United States, (CCA 10th) 57 F.2d 506...... 15

Nelson v. O’Neil, 402 U.S. 622 (1971). ............4... 7

Nudd v. Burrows, 91 U.S. 426 (1875). .............. 15, 20

Ohio v. Roberts, 448 U.S. 56 (1980). ................ 34, 38

Pinkerton v. United States, 328 U.S. 640 (1946)...... 29, 34

Tennessee v. Street, 471 U.S. 409 (1985) .............. 33

United States v. Alfonso, 738 F.2d 369 (10th Cir. 1984). 39

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

rc“ £ ttf ee 21

United States v. Andrews, 585 F.2d 961 (10th Cir. 1978) 21

United States v. Arnott, 704 F.2d 322 (6th Cir.), cert.

dented, 464 U.S. 948 (19GB) .. cc ccccccccccccess 21

United States v. Bell, 573 F.2d 1040 (8th Cir. 1978)..... 21

United States v. Bourjaily, 781 F.2d 539 (6th Cir.), cert.

granted, ___ US. —__., 107 S. Ct. 268 (1986).. 1, 4, 38

United States v. Chiavolo, 744 F.2d 1271 (7th Cir. 1984) 38

United States v. Chindawongse, 771 F.2d 840 (4th Cir.

1985), cert. denied, __.. U.S. —__, 106 S. Ct. 859

EES rer ree 38

United States v. DeF illippo, 590 F.2d 1228 (2d Cir.), cert.

denied, 442 U.S. 920 (1979) .......... cece eee ee 26

Vv

Table of Authorities Continued

Page

United States v. DeLuna, 763 F.2d 897 (8th Cir.), cert.

denied sub nom Thomas v. United States, __. U.S.

decide EE SE SR 6 064606.00056.0000508 38-39

United States v. Dunn, 758 F.2d 30 (1st Cir. 1985) ..... 39

United States v. Fleishman, 684 F.2d 1329 (9th Cir.), cert.

I, GD UT, HE CUED occ ccccsccwcceccceses 22

United States v. Georgia Waste Systems, Inc., 731 F.2d

ER I Sil ee a Re PD 39

United States v. Huber, 772 F.2d 585 (9th Cir. 1985).... 22

United States v. Inadi, ___. U.S. — — 106 S. Ct. 1121

Re le. a 2 Oe cg 6, 31, 35

United States v. Jackson, 627 F.2d 1198 (D.C. Cir. 1980) 21

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

modifying, F.2d 1121 (1978), cert. denied, 442 U.S.

i. cesceladetbnkereteesbaaseroreesss 21

United States v. Jennell, 749 F.2d 13’2 (9th Cir. 1984),

cert. denied, ____ U.S. , 106 S.Ct. 114 (1985).. 39

United States v. Lopez, 803 F.2d 969 (9th Cir. 1986).... 39

United States v. Mastorano, 557 F.2d 1 (1st Cir.), reh’g

denied, 561 F.2d 406 (1977), cert. denied, 435 U.S. 922

dl eee ee CLuhe dnb ebe kesh Ueaeaink os 21

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

denied, 459 U.S. 945 (1982) .......... ccc cceeeee. 21

United States v. Matlock, 415 U.S. 164 (1974).. 17-18, 20, 27

United States v. Mouzin, 785 F.2d 682 (9th Cir.) cert.

denied sub nom. Charviga! v. United States, —

GRE RR I pe i arene 39

United States v. Nixon, 418 U.S. 683 (1974). ........ 15, 20

United States v. O’Connor, 737 F.2d 814 (9th Cir. 1984),

cert. denied, 469 U.S. 1218 (1985)................ 39

United States v. Ordonez, 737 F.2d 793 (9th Cir. 19849.. 39

United States v. Pagan, 721 F.2d 24 (2d Cir. 1983) ..... 38

United States v. Portsmouth Paving Corp., 694 F.2d 313

Oe a does 21

United States v. Rabb, 752 F.2d 1320 (9th Cir. 1984), cert.

dented, 471 U.S. 1019 (19GB)... ccc cece ccess 21, 22

United States v. Salisbury, 662 F.2d 738 (11th Cir. 1981),

cert. denied, 457 U.S. 1017 (1982)................ 21

vi

Table of Authorities Continued .

age

United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978) 21

United States v. Silverman, 771 F.2d 1193 (9th Cir. 1985) 22

United States v. Ziele, 734 F.2d 1447 (11th Cir. 1984), 469

CNS suena 32

Wilborg v. United States, 163 U.S. 632 (1896) ......... 20

Wong Sun v. United States, 371 U.S. 471, 490 (1963)... 23

Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 723

F.2d 238 (3d Cir. 1983), rev’d on other grounds,

Cty enmeen Es Gils SPEED 6-660 bbc eeccacsa 5

CONSTITUTIONAL AND STATUTORY PROVISIONS

re eae l

RE ne en ee l

SSS ee Ey an a l

EN ns tn paced bieeebaes au veenweus l

i 8 os nea tiuh taeheeodoueudeue l

RULES OF CouRT

Pee. Be. Bevel. BOG COD... cc cccccccccces 1, 7-9, 23-24, 27-32

oe ee rr en... . seksi coawe boewuebeceaeeeea 2

Eo oo og nee dee taneeieeaneeececs 16

wn cee week wanda die leew ou 16

. & eB OE. . Fh 4

Ps Bie Ms I EDs oc ccc ccccsccecceccscecees 4

_ 2 | FT... | 4 re passim

Te ee ee cla wkbeacwe 7

Fed. R. Evid. 803 (2), (6), (8), (24)............... 10, 11, 16

Fed. R. Evid. 804 (b)(3), (b)(5)...............0.8. 10, 11, 16

ss on. ce wbedeaweueunee 2, 28-32

MISCELLANEOUS

Advisory Committee’s Note to Fed. R. Evid. 104 (a), 56

SEES Se eon nna nn a 8, 27

Advisory Committee’s Note to Fed. R. Evid. 801, 56

ee Ue eueceus 11, 12, 30

Advisory Committee’s Note to Fed. R. Evid. 803, 56

Re esa eus 64 bad bdées cee ceeeboeas 10

vii

Table of Authorities Continued

Page

Advisory Committee’s Note to Fed. R. Evid. 804, 56

8 reer rrr rrr rer rT Tres 10-11

Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159

la cee Chee eed eee Ch EbEESENS 31

McCormick on Evidence 139 (3d. E. Cleary ed. 1984) .. 8

Maguire & Epstein, Preliminary Questions of Fact in

Determining the Admissibility of Evidence, 40 Harv.

rr )

Model Code of Evidence (1942) ..............0-0eeee. ll

Morgan, Basic Problems of Evidence (1962)........... 8

Morgan, Functions of Judge and Jury in the Determina-

tion of Preliminary Questions of Fact, 43 Harv. L.

Se eee i)

R. Lempert & S. Saltzburg, A Modern Approach to Evi-

SS er ne ll

Saltzburg, Standards of Proof and Preliminary Questions

of Fact, 27 Stan. L. Rev. 271 (1975).............. 9, 24

Saltzburg & Redden, Federal Rules of Evidence Manual

tess ORR h enh sheuhennens 24, 28

1 Weinstein & Berger, Weinstein’s Evidence........... 24

1J. Wigmore, Evidence in Trials at the Common Law § 17,

Se TL, EEE on 6 ns cecccoctsneccossesas 18

1 Wigmore § 216, at 717 & n. 4 (3d ed. 1940)........... 18

PROCEEDINGS BELOW

William Bourjaily, the petitioner, was tried and con-

victed in the United States District Court for the

Northern District of Ohio of two offenses, conspiring to

possess and distribute cocaine in violation of 21 U.S.C.

§ 846 and possession with intent to distribute cocaine in

violation of 21 U.S.C. §841 (A)(1).! He appealed to the

United States Court of Appeals for the Sixth Circuit,

which affirmed his convictions on January 15, 1986.

United States v. Bourjaily, 781 F.2d 539 (6th Cir. 1986).

Petitioner filed a timely petition for certiorari, and this

Court granted the writ on October 14, 1986. __ U.S.

__., 107 S.Ct. 268 (1986).

JURISDICTION

The United States brought this criminal case in the

district court. Petitioner's appeal as of right to the court of

appeals was grounded in 28 U.S.C. § 1291. This Court has

jurisdiction over his case pursuant to 28 U.S.C. § 1254 (1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution, Amendment VI:

In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses

against him....

Federal Rule of Evidence 104 (a), (b):

(a) Questions of admissibility generally.—Pre-

liminary questions concerning the qualification of a

person to be a witness, the existence of a privilege, or

the admissibility of the evidence shall be determined

by the court, subject to the provisions of subdivision

(b). In making its determination it is not bound by the

| Petitioner was sentenced to concurrent prison terms of 15 years

and to a thr°e-year specia. parole term on (he possession count.

2

rules of evidence except those with respect to priv-

ilege.

(b) Relevancy conditioned on fact.—When the

relevancy of evidence depends upon the fulfillment of

a condition of fact, the court shall admit it upon, or

subject to, the introduction of evidence sufficient to

support a finding of the fulfillment of the condition.

Federal Rule of Evidence 801 (d)(2)(E>:

(d) Statements which are not hearsay.—A state-

ment is not hearsay if—

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

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

statement by a co-conspirator of a party during the

course and in furtherance of the conspiracy.

Federal Rule of Evidence 1101 (d):

(d) Rules inapplicable.—The rules (other than

with respect to privileges) do not apply in the follow-

ing situations:

(1) Preliminary questions of fact.—The deter-

mination of questions of fact preliminary to

admissibility of evidence when the issue is to be

determined by the court under rule 104.

STATEMENT OF THE CASE

Petitioner was arrested immediately after a package

containing a kilogram of cocaine was placed into his car by

a co-defendant, Angelo Lonardo. (J.A. 45-46) When

Federal Bureau of Investigation agents seized and

searched petitioner's car, they found not only the cocaine

but also approximately $20,000 in cash. (J.A. 149)

3

The only evidence, other than statements made by

Lonardo, that implicated petitioner on both the conspir-

acy and the possession charges was testimony by the FBI

agents concerning the arrival of petitioner’s car at the

parking lot of a Hilton Hotel, Lonardo’s removal of the

package from the car of a third person (Clarence Great-

house), Lonardo’s placement of the package in petitioner's

car, and petitioner's arrest and searches incident thereto.

Over petitioner's objection, the government played for

the jury tape recordings that it made of conversations

between Lonardo and the source of the cocaine, Clarence

Greathouse.? Greathouse had consented to cooperate

with federal agents as part of an agreement that disposed

of the government's case against him. (J.A. 7)

In one taped conversation between Greathouse and

Lonardo on May 12, 1984, Lonardo indicated that he had

talked to “the people” who were interested in selling

cocaine and that the deal would be set up as Greathouse

and Lonardo had done it in the past. (J.A. 88-89) Lonardo

indicated that he would “try to set some people up.” (J. A.

94) Lonardo stated that his contacts did not know that

Greathouse was the supplier and that he wanted to keep it

that way. (J.A. 94) On May 17, Greathouse asked Lonardo

for money, and Lonardo telephoned to arrange for deliv-

ery on May 19. (J.A. 116-19) Several conversations

between the two followed. (J.A. 120-30) On May 24, Great-

house told Lonardo that the cocaine had arrived, and

Lonardo reported that he would try to contact some peo-

ple, but that he had told them the deal was off because of a

misunderstanding about the purchase price. (J.A. 135)

2The government taped telephone calls and also equipped Great-

house with a body recorder.

4

On May 25, Lonardo told Greathouse that he had a

“friend” who wanted to ask some questions. (J.A. 19) A

subsequent call was not recorded, but Greathouse testi-

fied that he discussed various aspects of a cocaine transac-

tion with the friend and that he also snoke to Lonardo

during the conversation. (J.A. 25) No evidence was

offered as to the identity of the gentleman friend.

Some time later on May 25, Lonardo telephoned Great-

house to arrange for a sale of cocaine. (J.A. 138-40) Great-

house arranged to meet Lonardo at a Hilton Hotel, and

Greathouse left the cocaine under the passenger seat of

his car. (J.A. 29) Greathouse met Lonardo inside the hotel

where Lonardo received the keys to Greathouse’s car.

Thereafter, Lonardo removed the cocaine from Great-

house's car and carried it to petitioner’s car. (J.A. 44)

Almost immediately, the FBI agents made their arrests

and searches. (J.A. 46).

In arguing to the district judge that the taped con-

versations should be admissible against petitioner, as well

as against Lonardo,* the government specifically relied

on the substance of the very conversations to which peti-

tioner objected in order to satisfy Fed. R. Evid. 801

(d)(2)(E). (J.A. 71-74) Accepting the government’s argu-

ment, the district court simply found that the evidence

rule was satisfied. (J.A. 75) The court of appeals affirmed,

3 The sum of money that Greathouse testified the friend was willing

to pay was $15,000 up front, which differed considerably from the

amount found in petitioner's car. (J.A. 24)

* Any statements by Lonardo would, of course, have been personal

admissions, which would have come in against him under Fed. R.

Evid. 801 (d)(2)(A). Statements by Greathouse to Lonardo would

either have been admissible against Lonardo to explain Lonardo’s

own admissions or as adoptive admissions by Lonardo under Fed. R.

Evid. 801 (d)(2)(B).

3)

specifically relying on the taped conversations to find

sufficient evidence for the district judge to have deter-

mined that a conspiracy had been proved by a prepon-

derance of the evidence to the judge’s satisfaction. 781

F.2d at 542.

SUMMARY OF THE ARGUMENT

In order to satisfy the Confrontation Clause of the

Sixth Amendment and Fed. R. Evid. 801 (d)(2)(E), a trial

judge must make three findings before permitting out-of-

court hearsay statements made by an alleged co-conspir-

ator to be used against a defendant in a criminal case in

federal court:® first, that there is sufficient independent

evidence to prove that a conspiracy existed; second, that

the declarant and the defendant were both members of

the conspiracy; and third, that any statement was made in

furtherance of and during the existence of the conspiracy.

In deciding whether or not the government has laid a

sufficient predicate for admission of co-conspirator state-

ments, the trial judge must utilize the preponderance of

the independent evidence standard with respect to the

existence of the conspiracy and the membership therein of:

the co-conspirator and the defendant.®

>The Confrontation Clause would have no applicability in a civil

case, but the hearsay analysis would be the same. Fed. R. Evid. 801

(d)(2)(E) does not distinguish between criminal and civil cases. See,

e.g., Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 723 F.2d

238, 260-63 (3d Cir. 1983), rev’d on other grounds, :

106 S.Ct. 1348 (1986).

6 The preponderance standard is the usual standard employed by

trial courts in making rulings on preliminary questions of fact relating

to evidence issues. It should plainly be permissible for a trial judge to

use a higher standard—e.g., to require clear and convincing evidence

or proof beyond a reasonable doubt—in making such rulings, and

some state courts may require more than a preponderance of the

6

Assuming that the requisite findings are made and that

a statement by a co-conspirator qualifies under the evi-

dence rule for admission against a defendant, petitioner

does not contend that in each and every case the court

must assess the circumstances of the case to determine

whether the statement carries with it sufficient indicia of

reliability to satisfy the Confrontation Clause. Rather,

petitioner suggests when the hearsay exception for co-

conspirator statements,’ being a long standing exception

to the general rule of evidence excluding hearsay state-

ments offered for the truth of the matter stated, is satis-

fied, the presumption should be that the statements satis-

fying the exception also satisfy the Confrontation Clause.

This presumption should not be conclusive, however.

When a defendant who specifically objects on Confronta-

tion Clause grounds and articulates reasc ~s why co-con-

spirator statements are not only crucial in the case, but

also are unusually unreliable, the trial judge should be

required to determine whether the statements should, in

evidence. Cf’ Lego v. Twomey, 404 U.S. 477, 489 (1972). Petitioner

believes that Fed. R. Evid. 801 (d)(2)(E) requires a uniform avoroach

in federal courts, and that the preponderance standard is appropriate

as well as sufficient to satisfy constitutional requirements.

‘This Court has previously observed that the drafting of Fed. R.

Evid. 801 technically defines a co-conspirator statement as not being

hearsay rather than as an exception to the hearsay rule as it was

treated at common law. United States v. Inadi, U.S. 106

S.Ct. 1121, 1128 (1986). Whether Rule 801 (d) technically should be

called an exemption from or an exception to the hearsay rule cannot

be significant for purposes of a constitutional analysis, as this Court

recognized in /nadi: “Whether such statements are termed exemp-

tions or exceptions, the same Confrontation Clause principles apply.”

Id. at 1128 n.12.

7

fairness, be used against a defendant who has no oppor-

tunity to cross-examine the declarant.®

Applying these principles to the facts of his case, peti-

tioner asks the Court to hold that the lower courts used an

incorrect approach to determining the admissibility of an

alleged co-conspirator’s statements and either to hold that

the statements were improperly admitted or to vacate and

remand the case for further proceedings pursuant to the

correct approach.

ARGUMENT

I. IN ORDER TO ADMIT AN ALLEGED CO-CONSPIR-

ATOR’S DECLARATIONS AGAINST A DEFENDANT

UNDER FEDERAL RULE OF EVIDENCE 801

(d)(2)(E), THE COURT MUST DETERMINE BY INDE-

PENDENT EVIDENCE A) THAT A CONSPIRACY

EXISTED, AND B) THAT THE DECLARANT AND THE

DEFENDANT WERE MEMBERS OF THIS CONSPIR-

ACY

A. The Decision Whether To Admit Co-Conspirator Dec-

larations Requires A Trial Judge To Engage In Pre-

liminary Fact Finding Under Fed. R. Evid. 104 (a)

Federal Rule of Evidence 104 provides in relevant part

as follows:

(a) Questions of admissibility generally.—Pre-

liminary questions concerning the qualification of a

person to be a witness, the existence of a privilege, or

the admissibility of the evidence shall be determined

by the court, subject to the provisions of subdivision

8 If the defendant has an opportunity for cross-examination, the

Confrontation Clause problem will disappear under this Court’s hold-

ings in California v. Green, 399 U.S. 149 (1970); Nelson v. O’Neil, 402

U.S. 622 (1971).

8

(b). In making its determination it is not bound by the

rules of evidence except those with respect to priv-

ilege.

There can be no doubt that the decision whether a state-

ment by a co-conspirator fits within Fed. R. Evid. 801

(d)(2)(E) is a determination that the trial judge must

make under subdivision (a) of Rule 104. Rule 801 estab-

lishes conditions precedent to the admission of evidence

that otherwise would be excluded under Fed. R. Evid.

802 as hearsay, and the determination of whether those

conditions have been satisfied involves preliminary ques-

tions concerning “the admissibility of evidence.” The

Advisory Committee’s Note accompanying Rule 104 (a)

explains its scope. It states that “(t]he applicability of a

particular rule of evidence often depends upon the exist

ence of a condition,” and “[t]o the extent that these inquir-

ies are factual, the judge acts as a trier of fact.” 56 F.R.D.

183, 197 (1972). The Note specifically gives as one example

the determination whether a hearsay statement qualifies

as a declaration against interest, which is a decision

“made by the judge.” Jd. The same reasoning applies to

fact finding under Fed. R. Evid. 801 (d)(2)(E).

Rule 104 (a) merely codifies the common law approach

toward separating the functions of judge and jury. See

McCormick on Evidence 139 (3d. E. Cleary ed. 1984): E.

Morgan, Basic Problems of Evidence 45-50 (1962).

“Entrusting the judge—rather than the jury—

with the responsibility of determining certain factual

questions serves a threefold purpose: First, it pre-

vents the submission of highly technical evidentiary

questions to a group of laymen ill equipped ‘to do

legal reasoning. . . .’ Second, it insulates the jurors

from the kinds of evidence that they may be unable to

evaluate fairly; trepidations as to the ability of jurors

fairly to evaluate certain kinds of evidence may give

rise to various exclusionary rules. . . . Finally, reso-

lution of the preliminary factual question by the

judge may be necessary to preserve and protect the

9

very interest sought to be furthered by the suppres-

sion of certain evidence.”9

It is vital that the trial judge make the preliminary

determination of facts necessary to evaluating the

admissibility of statements under Fed. R. Evid. 801

(d)(2)(E). Jurors are untrained in the hearsay rule and

unfamiliar with the concepts that underlie the co-conspir-

ator’s exception to or exemption from the generai ban on

hearsay evidence. The task falls naturally to the judge

under Fed. R. Evid. 104 (a).

B. The Trial Judge Must Determine That A Conspiracy

Existed And That The Declarant And The Defendant

Were Members Of The Conspiracy As A Condition Of

Admitting Evidence Of A Co-Conspirator’s State-

ment Under Fed. R. Evid. 801 (d)(2)(E)

The showing required by a party seeking to rely upon

Fed. R. Evid. 801 (d)(2)(E) is clearly set forth in the rule:

the party mus. demonstrate that “(t]he [co-conspirator]

statement i. Jffered against a party and is... (E) a

statement by aco-conspirator of a party during the course

and in furtherance of the conspiracy.” Two findings—first,

that a conspiracy is proved and, second, that the par-

ticipation of both the declarant and the defendant against

whom a co-conspirator’s statement is offered also is

proved—are necessarily required under the rule. Fed. R.

Evid. 801 (d)(2)(E) imposes these requirements in three

distinct ways: 1) The rule mandates that the statement

* Saltzburg, Standards of Proof and Preliminary Questons of Fact,

27 Stan. L. Rev. 271 n.2 (1975). See also Maguire & Epstein, Prelimin-

ary Questions of Fact in Determining the Admissibility of Evidence,

40 Harv. L. Rev. 392 (1927); Morgan, Functions of Judge and Jury in

the Determination of Preliminary Questions of Fact, 43 Harv. L. Rev.

165 (1929).

10

offered must be “by a co-conspirator of a party,” and this

mandate cannot be satisfied unless a conspiracy in which

both the declarant and the defendant participated is

proved. 2) The rule requires proof that the statement was

made during the course of the conspiracy in which the co-

conspirator and the party were involved. 3) The rule

requires the offering party to prove that the co-conspir-

ator’s statement was in furtherance of the same conspir-

acy. The second and third requirements, therefore,

signify also that the proponent of a co-conspirator’s state-

ments must prove a conspiracy that includes both the

declarant and the defendant.

The two findings necessitated by Fed. R. Evid. 801

(d)(2)(E) are of constitutional as well as of evidentiary

dimensions. Unless the requisite proof of conspiracy and

participation is offered, there would be no acceptable

rationale for admitting a co-conspirator’s statements

against a defendant. Admission of statements that are

neither reliable nor fairly attributable to a party under a

notion of vicarious responsibility would violate the Con-

frontation Clause.

Most hearsay exceptions rest upon a foundation of nec-

essity and reliability, and reliability is the most important

factor in the formulation of exceptions, as the Advisory

Committee on the Federal Rules of Evidence recognized.

The Advisory Committee’s Note to Fed. R. Evid. 803

states that “[t]he present rule proceeds upon the theory

that under appropriate circumstances a hearsay state-

ment may possess circumstantial guarantees of trust-

worthiness sufficient to justify nonproduction of the

declarant in person at the trial even though he may be

available.” 56 F.R.D. at 302. The Notes accompanying

both Rules 803 and 804 attempt to explain why the various

exceptions are defensible under a reliability analysis. 56

Ui

F.R.D. at 303-20, 322-28. Several of the rules themselves

make particular reference to reliability or trust-

worthiness. For example, the business records exception,

Fed. R. Evid. 803 (6), and the public records exception,

Fed. R. Evid. 803 (8), include clauses providing respec-

tively that hearsay falling within these exceptions is

admissible “unless the source of information or the

method of circumstances of preparation indicate lack of

trustworthiness” and “unless the sources of information

or other circumstances indicate lack of trustworthiness.”

Reliability or trustworthiness is also the linchpin of the

two residual exceptions, Fed. R. Evid. 803(24) and 804

(b)(5).

By way of contrast, the admissions exception or exemp-

tion is not generally justified on reliability grounds. As

the Advisory Committee’s Note to Rule 801 explained,

“Admissions by a party-opponent are excluded from the

category of hearsay on the theory that their admissibility

in evidence is the result of the adversary system rather

than satisfaction of the conditions of the hearsay rule.” 56

F.R.D. at 297.-The Note categorically states that “[n]o

guarantee of trustworthiness is required in the case of an

admission.” /d.

Attempts have been made to argue that statements

that meet the requirements of the co-conspirator’s excep-

tion are sufficiently reliable as a general proposition to be

admitted.!° But it is well established that the primary

justification for admission of one co-conspirator’s state-

ments against another co-conspirator is premised on an

10 See, e.g., Model Code of Evidence 251 (1942); R. Lempert &

S. Saltzburg, A Modern Approach to Evidence 395 (2d ed. 1982). But

these arguments have been criticized. E.g., R. Lempert & S. Salt-

zburg, supra, at 395-96.

12

agency principle. The Advisory Committee’s Note to Rule

801 recognized this, even as it observed that “the agency

theory of conspiracy is at best a fiction and ought not to

serve as a basis for admissibility beyond that already

established.” 56 F.R.D. at 299.

Whether admissibility of co-conspirator’s statements is

justified exclusively on an agency theory or on this theory

combined with a reliability argument, it is clear that,

unless the conspiracy and the participation of the

declarant and the defendant are proved, there can be no

justification for admission of any given statement. There

can be no agency if there is no common venture, and any

reliability argument fails where a co-conspirator’s state-

ments were not in aid of a common undertaking with the

defendant against whom the statements are offered.

This Court has implicitly recognized the logical force of

this argument in Lutwak v. United States, 344 U.S. 604

(1953), a prosecution for conspiracy to defraud the United

States and to circumvent the immigration laws by obtain-

ing illegal entry of aliens as spouses of veterans. The

Court found that acts that occur after a conspiracy has

ended may be admitted as relevant evidence, but that

stateme.its require different treatment. Jd. at 617.

“Declarations stand on a different footing. Decla-

rations of one conspirator may be used against the

other conspirator not present on the theory that the

declarant is the agent of the other, and the admis-

sions of one are admissible against both under a

standard exception to the hearsay rule applicable to

the statements of a party. Clune v. United. § tates, 159

U.S. 590. See United States v. Gooding (U.S.) 12

Wheat 460, 468-70. But such declarations can be used

against the co-conspirator only when made in fur-

therance of the conspiracy. Fiswick v. United States,

329 U.S. 211, 217; Logan v. United States, 144 U.S.

13

263, 308, 309. There can be no furtherance of a con-

spiracy that has ended. Therefore, the declarations

of a conspirator do not bind the co-conspirator if

made after the conspiracy has ended. That is the

teaching of Krulewitch v. United States, 336 U.S.

440, and Fiswick v. United States, 329 U.S. 211, both

supra. Those cases dealt only with the declarations of

one conspirator after the conspiracy had ended... .”

Id. at 617-18.

If statements by one former co-conspirator may not be

admitted against a defendant after the conspiracy has

ended, certainly statements made by one who has never

been shown to be a co-conspirator are not admissible. This

Court’s opinions and the decisions of every circuit!! that

has addressed the question require procf that there was a

conspiracy and that the co-conspirator whose statement

is offered and the defendant against whom it is offered

were members of that conspiracy.

C. The Trial Judge Also Must Determine That A Co-

Conspirator’s Statements Were Made During And In

Furtherance Of A Conspiracy Before Admitting The

Statements Against A Defendant

The final preliminary decision that the trial judge must

make under Fed. R. Evid. 801 (d)(2)(E) is that statements

made by a co-conspirator and offered against a defendant

were made during the conspiracy and were in furtherance

of the conspiracy. This is evident on the face of the rule

and it has been accepted in this Court’s decisions, as the

quotation from Lutwak, supra, clearly demonstrates.

11 There has been some difference of opinion among the circuits as

to the standard of proof that the trial judge must employ, but the

basic proposition set forth here has been accepted by all of the

circuits. The decisions are set forth in the discussion of the appropri-

ate standard of proof, infra, at 20-23.

14

Although this point might appear to be outside the scope

of the questions presented for review, petitioner briefly

mentions this aspect of the trial judge’s function because it

is important to the second question presented, which is

what quantum of independent proof is required to support

a preliminary finding by the judge.

il. THE GOVERNMENT MUST PERSUADE THE TRIAL

JUDGE BY A PREPONDERANCE OF THE INDE-

PENDENT EVIDENCE THAT IT HAS MET THE

REQUIREMENTS FOR ADMISSION OF A CO-CON-

SPIRATOR’S STATEMENTS AGAINST A CRIMINAL

DEFENDANT

A. This Court Has Declared That There Must Be Proof

Aliunde Of Conspiracy

In Glasser v. United States, 315 U.S. 60 (1942), this

Court addressed the foundation that must be laid before a

co-conspirator’s statement is admissible against another

defendant. The discussion in Glasser arose in the context

of a defendant's claim that he was denied the adequate and

constitutionally guaranteed assistance of counsel in a

prosecution alleging corruption on the part of Assistant

United States Attorneys. One lawyer, Stewart, had been

retained by Glasser before Stewart also was appointed by

the trial judge to represent a co-defendant, Kretske.

Glasser complained that Stewart did not object to the

admission of statements made by Kretske which impli-

cated Glasser, either by name or by nickname. This Court

rejected the government’s argument that Glasser was not

harmed by counsel’s failure to object.

“Glasser contends that such statements constituted

inadmissible hearsay as to him and that Stewart fore-

went this obvious objection lest an objection on

behalf of Glasser alone leave the jury the impression

that the testimony was true as to Kretske. The gov-

ernment attacks this argument as unsound, and.

15

relying on the doctrine that the declarations of one

conspirator in furtherance of the objects of the con-

spiracy made to a third party are admissible against

his co-conspirators, Logan v. United States, 144 U.S.

263, contends that the declarations of Kretske were

admissible against Glasser and hence no prejudice

could arise from Stewart's failure to object. However,

such declarations are admissible over the objection of

an alleged co-conspirator, who was not present when

they were made, only if there is proof a/iwnde that he

is connected with the conspiracy. Vinner v. United

States (CCA 10th) 57 F.2d 506; and see Nudd v.

Burrows, 91 U.S. 426. Otherwise hearsay would lift

itself by its own boot straps to the level of competent

evidence.”

Id. at 73-75. The conspirator statements quoted by the

Court specifically made reference to Glasser or to his

nickname “Red.”!* After quoting various statements, the

Court proceeded to examine the proof aliunde.

In United States v. Nixon, 418 U.S. 683, 701 (1974), the

Court stated that “[dJeclarations by one defendant may

also be admissible against other defendants upon a suffi-

cient showing, by independent evidence, of a conspiracy

among one or more other defendants and the declarant

and if the declarations at issue were in furtherance of that

conspiracy.”!3 The circuits have uniformly read Glasser

and Fed. R. Evid. 801 (d)(2)(E) as requiring that indepen-

dent evidence of conspiracy must be produced. !4

12 The Court quoted the specifics of these statements. 315 U.S. at

73 n.5.

13 Footnote omitted; emphasis added.

14 As was the case with the findings that the trial judge must make,

the circuits are in agreement that there must be independent evi-

dence of conspiracy. They disagree, as the cases cited, infra at 20-23,

will demonstrate, to a very minor extent on the statement of the

standard that the judge must employ in making the required findings

and on whether the conspirator statements may themselves be used

as evidence of the conspiracy when the judge makes fi: ‘ings.

16

B. The Government Must Prove To The Trial Judge By A

Preponderance Of The Evidence That The Require-

ments Of Rule 801 (d)(2)(E) Have Been Satisfied

Nothing in the Federal Rules of Evidence purports to

set forth the burden of persuasion that proponents of

evidence must satisfy when confronted with an ovjection

to the admissibility of their evidence based upon an exclu-

sionary rule or that parties or witnesses claiming a priv-

ilege must satisfy. The absence of any provision has

compelled courts to look to common law approaches and

to pre-Federal Rules of Evidence decisions in deciding

what standard to use for a variety of fact finding associ-

ated with implementation of some of the most important

and frequently invoked evidence rules—e.g., various

exceptions to the hearsay rule, the rule limiting expert

reliance on facts or data not otherwise admissible in evi-

dence to those reasonably relied upon,!® or a claim of

attorney-client, spousal or another common law priv-

ilege.!” The traditional rule, recognized by this Court as

such, is that the party who claims the benefit of an excep-

tion to an exclusionary rule must prove to the satisfaction

of the trial judge that the exception applies while the

claimant of a privilege must justify the claim by the same

evidentiary standard.

In Lego v. Twomey, 404 U.S. 477 (1972), the Court

addressed the question of the standard that the prosecu-

tion must satisfy to prove voluntariness of a confession.

Although the petitioner, a defendant convicted in state

court, argued that the standard should be proof beyond a

IS E.g., Fed. R. Evid. 803 (2) (exited utterance); Fed. R. Evid. 804

(b)(3) (declaration against interest).

16 Fed. R. Evid. 703.

17 Fed. R. Evid. 501.

————eEOw

17

reasonable doubt, the Court held that the preponderance

of the evidence standard was adequate. Lego arose as a

result of this Court’s decision in Jackson v. Denno, 378

U.S. 368 (1964), which required a judicial determination

of voluntariness prior to the admission of a confession.

In its Lego opinion, the Court explained the justifica-

tion for the requirement of judicial screening of con-

fessions in Jackson: “Precisely because confessions of

guilt, whether coerced or freely given, may be truthful

and potent evidence, we did not believe that a jury could

be called upon to ignore the probative value of a truthful

but coerced confession; it was also likely, we thought, that

in judging voluntariness itself the jury would be influ-

enced by the reliability of a confession it considered an

accurate account of the facts.” Jd. at 483. The Court

assumed as have most courts, that the usual standard for

preliminary fact finding was the preponderance standard.

It reasoned, with respect to Jackson, that “the then-

established duty to determine voluntariness had not been

framed in terms of a burden of proof,” but that “[w]Je could

fairly assume then, as we can now, that a judge would

admit into evidence only those confessions that he reliably

found, at least by a preponderance of the evidence, had

been made voluntarily.” Jd. at 484.

Lego was decided before this Court submitted the pro-

posed Federal Rules of Evidence to the Congress. While

the proposed rules were pending before Congress, the

Court decided United States v. Matlock, 415 U.S. 164

(1974), holding that the government must prove voluntary

consent to a search by a preponderance of the evidence.

Id. at 177. It stated that “the controlling burden of proof at

suppression hearings should impose no greater burden

than proof by a preponderance of the evidence.” /d. at 177

n.14 (citing Lego). The Court reaffirmed Lego in Colorado

18

v. Connelly, ___. U.S. , 107S.Ct. 515 (1986), as it held

that the prosecution satisfies its burden of proving a

waiver of the privilege against self-incrimination by meet-

ing the preponderance of the evidence standard.

That the Court assumed the preponderance burden to

be the usual burden in preliminary fact finding relating to

evidence issues is demonstrated by the language in Lego

that rejected the petitioner's argument that something

more than the preponderance standard was needed when

a confession was challenged on constitutional grounds:

“But, from our experience over this period of time no

substantial evidence has accumulated that federal rights

have suffered from determining admissibility by a pre-

ponderance of the evidence. Petitioner offers nothing to

suggest that admissibility rulings have been unreliable or

otherwise wanting in quality because not based on some

higher standard.” 404 U.S. at 488.

It is obviously true that the Court addressed in both

Lego and Matlock the standard to be used for constitu-

tional questions. Thus, neither case can be said to hold

that the preponderance standard is required for non-

constitutional rulings. Matlock indicates, however, that

the Court treated a suppression hearing as involving a

preliminary question to be decided under Rule 104 (a), the

same rule that governs admissibility of co-conspirator

statements. 415 U.S. at 173-74.

There is strong support in logic as well as in the

assumptions of courts!® that the preponderance of the

evidence standard should be employed for preliminary

‘8 Distinguished commentators have made the same assumption.

See, e.g., 1J. Wigmore, Evidence in Trials at the Common Law §17,

at 770 (Tillers rev. 1983). See also 1 Wigmore § 216, at 717 & n.4 (3d ed.

1940).

eee

19

fact finding associated with the admission and exclusion of

evidence. Rules like the hearsay rule are designed to

exclude evidence that is deemed so unreliable that it is

more likely to inhibit than to enhance a trier of fact’s

ability to reach a correct result. The party claiming an

exception to the hearsay rule must bear a burden of

showing that, at a minimum, the reliability or agency

principles that support the exception are present. Other-

wise, there is a greater chance that the evidence will have

the harmful effects which underlie the rule of exclusion

than there is that the evidence will increase the reliability

of the judgment. !9

Use of a standard lower than the preponderance stan-

dard would raise Confrontation Clause problems, since

prosecutors would be permitted to rely upon out-of-court

statements for their truth even after a trial judge deter-

mined that it is more likely than not that such statements

are so unreliable or lacking in terms of evidence of agency

that they could not pass muster under a hearsay analysis.

The preponderance of the evidence standard assures that

hearsay admitted under Fed. R. Evid. 801 (d)(2)(E) will

more likely than not satisfy the minimum requirements

for admission under the rule and under the Confrontation

Clause, irrespective of whether these requirements are

19 [t should be noted that a defendant who claims the benefit of a

hearsay exception also must demonstrate by a preponderance of the

evidence that the requirements of the exception have been satisfied.

Nothing in the argument made herein favors or disfavors defendants

vis-a-vis the government with respect to evidence issues. The even-

handed point that supports the argument is that evidence that cannot

be shown, even by the slightest margin, to be more likely than not to

fit within an exception to an exclusionary rule is by definition as likely

to retard as to enhance the proceedings. Thus, it should be excluded.

20

thought to be grounded in notions of reliability or agency

or in both.

C. The Government Must Prove The Existence Of A

Conspiracy And The Membership Of The Declarant

And The Defendant By A Preponderance Of The

Independent Evidence”°

When this Court’s analysis in Glasser and Nixon, onthe

one hand, is combined with its adoption of the prepon-

derance of the evidence standard in Lego and Matlock, on

the other hand, a proper, fair and even-handed standard

to preliminary fact finding with respect to co-conspirator

statements emerges. The standard requires that the gov-

ernment, in order to use a co-conspirators statements

against a criminal defendant, must satisfy the trial judge

by a preponderance of the independent evidence that

there was a conspiracy and that the co-conspirator and

the defendant were participants therein.?!

20 7.¢., the evidence aliwnde in the words of Glasser, supra.

21 Before the enactment of the Federal Rules of Evidence, this

Court never specifically addressed the burden of persuasion with

respect to conspirator statements. Glasser, supra, required indepen-

dent evidence, but it did not focus on the amount cf such evidence that

was required. In several decisions, the Court assumed that whatever

standard applied had been satisfied. See, e.g., Nudd v. Burrows, 91

U.S. 426, 438 (1875) (bill of exceptions did not indicate “[wJhat proof

had been given of the alleged concert and conspiracy on the part of

the defendants, when the declarations of Emmons were offered to be

proved,” and “it is to be presumed it was sufficient to lay the proper

foundation as to them for the introduction of the evidence”); Wilborg

v. United States, 163 U.S. 632, 657-58 (1896) (Court assumed that a

secret combination had been proved and that declarations of those

engaged in it were admissible against participants). In dictum in

United States v. Nixon, 418 U.S. 683, 701 n.14 (1974), the Court stated

that “[aJs a preliminary matter, there must be substantial, indepen-

dent evidence of the conspiracy, at least enough to take the question

a

21

Most of the circuits apply this standard or one that

closely approximates the standard as articulated by peti-

tioner.** The cited decisions indicate that seven circuits

to the jury.”

The standard that petitioner advocates requires the prepon-

derance finding to be based upon independent evidence only with

respect to existence of the conspiracy and membership therein. The

discussion, infra, at 25-26, explains why the statements themselves

are appropriately considered with respect to other preliminary fact

finding that is done in connection with Fed. R. Evid. 801 (d)(2)(E).

22 United States v. Jackson, 627 F.2d 1198 (D.C. Cir. 1980) (sub-

stantial independent evidence required); United States v. Mar-

torano, 557 F.2d 1 (1st Cir.), reh’g denied, 561 F.2d 406 (1977), cert.

denied, 435 U.S. 922 (1978) (preponderance standard, but judge may

consider the statement seeking admission which ordinarily is to be

given little weight); United States v. Mastropieri, 685 F.2d 776 (2d

Cir.), cert. denied, 459 U.S. 945 (1982) (preponderance of indepen-

dent evidence required); United States v. Ammar, 714 F.2d 238 (3d

Cir.), cert denied, 464 U.S. 936 (1983) (preponderance of independent

evidence required); United States v. Portsmouth Paving Corp., 694

F.2d 313 (4th Cir. 1982) (fair preponderance of independent evidence

required); United States v. James, 590 F.2d 575 (5th Cir.) (er banc),

modifying, 576 F.2d 1121 (1978), cert. denied, 442 U.S. 917 (1979)

(preponderance of independent evidence required); United States v.

Arnott, 704 F.2d 322 (6th Cir.), cert. denied, 464 U.S. 948 (1983)

(preponderance of evidence, but trial judge may consider statements

seeking admission); United States v. Santiago, 582 F.2d 1128 (7th Cir.

1978) (preponderance of evidence, but reserving judgment as to

whether statements seeking admission may be used); United States

v. Bell, 573 F.2d 1040 (8th Cir. 1978) (fair preponderance of the

independent evidence); United States v. Rabb, 752 F.2d 1320 (9th Cir.

1984), cert. denied, 471 U.S. 1019 (1985) (reaffirming prima facie

evidence approach, but stating that government must produce sub-

stantial independent evidence of conspiracy to satisfy test); United

States v. Andrews, 585 F.2d 961 (10th Cir. 1978) (preponderance of

independent evidence required); United States v. Salisbury, 662 F.2d

738 (11th Cir. 1981), cert. denied, 457 U.S. 1017 (1982) (prepon-

derance of the independent evidence).

99

require the government to prove the conspiracy and mem-

bership therein, two of the required elements of Rule 801

(d)(2)(E), by a preponderance of the independent evi-

dence.** Two other circuits follow this approach but per-

mit consideration of the co-conspirator statements to

which objection is made in analyzing whether the govern-

ment has met the requirements of the rule.?4 One circuit

has left open the question whether the statements them-

selves may be considered.25 Ten circuits, then, agree on

the preponderance of the evidence approach. Seven agree

that the evidence of conspiracy and membership should

be assessed independently of the challenged co-conspir-

ator statements. Another?® would not exclude considera-

tion of the challenged statements, but ordinarily would

require trial judges to give the statements only slight

weight. The two circuits that do not use the prepon-

derance of the evidence test impose a substantial indepen-

dent evidence requirement on the government,?7

although it is difficult to tell whether this is more or less

demanding than the preponderance standard.

“3 See cases cited in note 22, supra, from the Second, Third,

Fourth, Fifth, Eighth, Tenth and Eleventh Circuits.

“4See cases cited in note 22, supra, from the First and Sixth

Circuits.

5 See case cited in note 22, supra, from the Seventh Circuit.

26 See case cited in note 22, supra, from the First Circuit.

27 See cases cited in note 22, supra, from the District of Columbia

and Ninth Circuits. At one time the Ninth Circuit might have dis-

tinguished substantial independent evidence from prima facie evi-

dence, but it has now abandoned the distinction. See United States v.

Fleishman, 684 F.2d 1329 (9th Cir.), cert. denied, 459 U.S. 1044

(1982); United States v. Silverman, 771 F.2d 1193 (9th Cir. 1985):

United States v. Huber, 772 F.2d 585 (9th Cir. 1985); United States v.

Rabb, 752 F.2d 1320 (9th Cir. 1984), cert. denied, 471 U.S. 1019

(1985).

23

There is an undeniable division of authority as to the

proper approach to co-conspirator statements, but that

division is not as great as the agreement among the cir-

cuits that the preponderance of the evidence standard

should be used (ten circuits) and that only independent

evidence should be considered with respect to conspiracy

and membership (nine circuits). In view of the extensive

agreement, two related issues present themseives: Is the

preponderance of the evidence standard that has been so

widely adopted preferable to the other standards? And, is

the limitation placed upon a trial judge to consider only

the independent evidence in deciding whether conspiracy

and membership have been demonstrated the most per-

suasive and defensible approach to co-conspirator state-

ments when preliminary findings of fact must be made

under Rule 801 (d)(2)(E)?

Petitioner submits that an affirmative answer to both

questions provides a clear, workable, and even-handed

rule that has proved over the years it has been employed

that it works to protect the interests of both sides in a

federal criminal prosecution. Affirmative answers will

promote consistency and predictability in the district and

circuit courts and will require only the smallest change in

the approach of a small minority of lower federal courts.

Affirmative answers are also consistent with this Court’s

historic approach to co-conspirator statements. 7%

First, petitioner urges this Court to declare that the

overwhelming majority of circuit courts have correctly

utilized the preponderance standard in making

admissibility decisions under Fed. R. Evid. 104 (a) and

28 Like the Advisory Committee, this Court has resisted efforts to

expand the scope of the co-conspirator’s exception to the hearsay

rule. See Wong Sun v. United States, 371 U.S. 471, 490 (1963).

24

Fed. R. Evid. 801 (d)(2)(E). The preponderance standard,

as noted above, has been assumed by this Court, other

courts, and commentators to be the appropriate standard

for most preliminary factual issues raised when evidence

is offered and objection is made. Under a the prima facie

evidence standard, or the virtually identical substantial

evidence standard, trial judges and trial lawyers have

little, if any, guidance as to how much evidence is substan-

tial. The preponderance standard has worked well, as this

Court observed in Lego. It assures that evidence is more

likely than not reliable or satisfactory and therefore sup-

ports admission. Some commentators have urged that a

beyond a reasonable doubt test is preferable.29 Others

have defended the traditional preponderance standard.?!

Petitioner submits that the overwhelming majority of

circuits have correctly interpreted Fed. R. Evid. 104 (a)

and Fed. R. Evid. 801 (d)(2)(E) as adopting the same

preponderance standard that has traditionally been used

in preliminary fact finding. That standard strikes a fair

balance between the government’s interest in offering co-

conspirator statements and the defendant’s interest in

protection against unwarranted admission of another's

statements on either an agency or a reliability theory.

Assuming that the preponderance of the evidence is the

correct standard, petitioner next asks this Court to find

that the vast majority of the circuits which have adhered

to Glasser and have required trial judges to find a conspir-

acy and membership therein on the basis of independent

“9 There is substantial confusion as to what exactly a prima facie

showing would be. See S. Saltzburg & K. Redden, Federal Rules of

Evidence Manual 729-32 (4th ed. 1986).

30 See 1 Weinstein’s Evidence § 104[05], at 104-43.

31 Support for this balance can be found in S. Saltzburg & K.

Redden, supra note 29, at 732-33; Saltzburg, supra note 9, at 302-04.

25

evidence, not by relying upon the challenged co-conspir-

ator statements, are correct. No court has joined the

Sixth Circuit in holding that the very statements chal-

lenged under Rule 801 (d)(2)(E) may furnish the primary

support for their admissibility, as occurred in the instant

case. Petitioner submits that the Sixth Circuit has

adopted an approach that ignores the derivation of the co-

conspirator rule and the conscious decision that was made

not to expand it when the Federal Rules of Evidence were

enacted.

Before turning to the background of Rule 801 (d)(2)(E),

petitioner points out that the circuits that have held that

only independent evidence may be considered when a

trial judge decides whether a conspiracy has been proved

and the co-conspirator and the defendant were partici-

pants therein have not concluded that the conspirator

statements must be disregarded in deciding whether they

were made during and in furtherance of the conspiracy. **

Once the trial judge has found the requisite conspiracy

and participation by a preponderance of the evidence, the

judge may—in fact, often must—consider the substance

of the challenged statements in making a determination

whether they were in furtherance of a conspiracy and

even whether they were made during a conspiracy.** The

32 The majority of circuits have held that proof of conspiracy and

membership therein by the preponderance of the independent evi-

dence establishes the existence of the kind of relationship between

the declarant and the defendant that warrants examination of the

contents of the statements to see whether they were indeed part of

the conspiratorial venture that the trial judge has found.

33 As petitioner observes in note 32, supra, the trial judge is also

justified in examining the contents of the statement once it has been

established for purposes of preliminary fact finding that the declarant

and the defendant were members of the same conspiracy. This is

26

judge must do so because statements that are “casual

conversation” are not admissible under the rule.34 With-

out examining the substance of the statements, the trial

judge could not reasonably determine their nature. Sim-

ilarly, if a claim is made that a statement actually termi-

nated a conspiracy or one person’s participation, the trial

judge could not decide whether that communication was

during (or in furtherance of) unless the contents could be

examined. Thus, it must be true that the trial judge may

examine the challenged statements to make the judgment

whether a statement was made in furtherance of and

during a conspiracy.

But, the fact finding concerning the existence of a con-

spiracy and the participation of the co-conspirator and a

defendant raises different concerns. This court stated in

Glasser, 315 U.S. at 75, that declarations by a co-conspir-

ator may only be admitted against a defendant who was

not present when they were made, only if there is proof

altunde that both are connected with the conspiracy.

“Otherwise hearsay would lift itself by its own boot straps

to the level of competent evidence.” Lower courts have

also been concerned about boot-strapping.*5 In light of

Glasser, the argument that the conspirator’s statements

should not themselves be considered part of the proof

aliunde might be conclusive. But, it is called into question

by Fed. Rule Evid. 104 (a) and Fed. R. Evid. 1101 (d)(1),

similar to an agency analysis in a respondant superior case. Unless

agency is shown, an agent’s acts may not be considered against a

principal. Once agency is shown, the acts may be examined to see

whether they fall within the scope of the agency.

34 See, e.g., United Staies v. Lieberman, 637 F.2d 95 (2d Cir. 1980).

3 See, e.g., United States v. DeFillippo, 590 F.2d 1228 (2d Cir.).

cert. denied, 442 U.S. 920 (1979).

27

which respectively provide that “{iJn making its deter-

mination [on a preliminary question of fact] it [the court |

is not bound by the rules of evidence except those with

respect to privilege,” and “[tjhe rules (other than with

respect to privileges) do not apply in the following situa-

tions: (1) Preliminary questions of fact.—The determina-

tion of questions of fact preliminary to admissibility of

evidence when the issue is to be determined by the court

under rule 104.”

Were these rules read without regard to the drafters’

intent and without reference to the law that preceded

them, it surely would seem that the rules permit the trial

judge to rely upon any available evidence in making any

preliminary finding of fact. The intent of the drafters in

these rules was identified by this Court in United States v.

Matlock, 415 U.S. at 173. The Court noted that there has

traditionally been a different evidentiary approach to pre-

liminary findings of fact and to trial on the merits, and

wrote as follows: “That the same rules of evidence govern-

ing criminal jury trials was not generally thought to

govern hearings before a judge to determine evidentiary

questions was confirmed. . . when the Court transmitted

to Congress the proposed Federal Rules of Evidence... .

The rules in this respect reflect the general views of

various authorities on evidence. . . . .” Jd. at 173-74. The

Court added that “[t]here is, therefore, much to be said

for the proposition that in proceedings where the judge

himself is considering the admissibility of evidence, the

exclusionary rules, aside from rules of privilege, should

not be applicable; and the judge should receive the evi-

dence and give it such weight as his judgment and experi-

ence counsel.” Jd. at 175.

The Advisory Committee’s Note to Rule 104 (a), 56

F.R.D. at 197, supports the description in Matlock of

28

Rule 104 (a). Generally speaking, Rules 104 (a) and 1101

(d)(1) provide the trial judge with flexibility in making

preliminary rulings. Such flexibility is important, for, as

the Advisory Committee noted, in some cases the trial

judge must consider the challenged evidence in order to

make a ruling. The example offered by the Advisory

Committee is that “the content of an asserted declaration

against interest must be considered in ruling whether it is

against interest.” 56 F.R.D. at 197. Petitioner does not

challenge this argument; in fact, the point made earlier

concerning the need to examine a co-conspirator’s state-

ment in order to decide whether it was in furtherance of

conspiracy is very similar.

Petitioner contends, however, that neither Rule 104 (a)

nor Rule 1101 (d)(1) was intended to change the basic rule

that a conspiracy and membership therein must be dem-

onstrated by sufficient independent evidence before the

trial judge examines a statement in order to determine

whether it was made during and in furtherance of the

conspiracy. “(T]he important thing . . . is that Rule 104

(a) does not define what the preliminary question of fact is

that the Trial Court must decide. In some jurisdictions

that have used the preponderance of the evidence stan-

dard—e.g., the Second and Third Circuits—the Courts of

Appeals have held that one part of the preliminary ques-

tion is whether a conspiracy that included the declarant

and the defendant against whom a statement is offered

has been demonstrated to exist on the basis of evidence

independent of the declarant’s hearsay statements. ”36

Because the more important, if not the exclusive. justi-

fication for admitting co-conspirator statements involves

an agency principle, this Court in Glasser, supra, and the

96S. Saltzburg & K. Redden, supra note 29, at 735.

29

majority of the circuits following the adoption of the

Federal Rules of Evidence have determined that it is

essential, if a fair trial is to be assured, that there be

sufficient evidence of conspiracy and membership offered

before the party relying on a co-conspirator’s statement

may use it against someone other than the declarant.

Without independent evidence, it is possible that a co-

conspirator’s statements will be introduced primarily on

the basis that someone outside of court mentioned a

defendant and made allegations against that defendant,

without any guarantee of reliability or any credible proof

of agency. Moreover, the same statements that are used to

boostrap into evidence hearsay statements against a

defendant may be damning evidence that will be used to

hold the defendant liable, under Pinkerton v. United

States, 328 U.S. 640 (1946), for acts committed by others.

Without independent evidence of conspiracy that is

sufficient to support the preponderance of the evidence

standard (i.e., to make it more likely than not that there

was a conspiracy involving the declarant and the defend-

ant), petitioner submits that there is no justification for

admitting a statement; neither agency nor reliability has

been demonstrated. Last term this Court held in Lee v.

Illinois, ___ U.S. ——, 106 S.Ct. 2056 (1986), that a

defendant’s confrontation right was denied when a co-

defendant’s confession was used against him. The Court

wrote that “[w]e need not address the question of Thomas’

availability, for we hold that Thomas’ statement, as the

confession of an accomplice, was presumptively unreliable

and that it did not bear sufficient independent ‘indicia of

reliability’ to overcome that presumption.” 106 S.Ct.

2061. A statement by a co-conspirator implicating a

defendant is equally damning and traditionally has been

viewed as presumptively inadmissible until the proponent

30

has been able to show by independent evidence a conspir-

acy and the membership in it of the defendant and the

declarant, which gives rise to the justifications for

admissibility—agency and reliability.37 Without the tra-

ditional requirement of independent evidence, admission

of a co-conspirator’s statements against a defendant

broadens the scope of the co-conspirator’s exception and

poses serious Confrontation Clause problems.

The Advisory Committee’s Note to Fed. R. Evid. 801

(d)(2)(E) establishes that the Committee believed it was

not broadening the co-conspirator’s exception or exemp-

tion. 56 F.R.D. at 299. The wording of Fed. R. Evid. 801

(d)(2)(E) is consistent with this belief. The rule provides

that a statement that otherwise would be excluded as

hearsay is admissible if it is “a statement by a co-conspir-

ator of a party during the course and in furtherance ot ine

conspiracy.” The Advisory Committee apparently

assumed that the trial judge would first determine that

there was a conspiracy in which the declarant and the

party were members and then proceed to find whether a

statement was made during the course and in furtherance

of the conspiracy.

The requirement that the determination of the conspir-

acy and its membership be made on independent evi-

37In Lee, the Court rejected the argument that the statement

should have been acceptable as a declaration against interest: “We

reject respondent's categorization of the hearsay involved in this case

as a simple ‘declaration against penal interest.’ That concept defines

too large a class for meaningful Confrontation C lause analysis. We

decide this case as involving a confession by an accomplice which

incriminates a criminal defendant.” 106 S. Ct. at 2064 n.5. A state-

ment by a co-conspirator is equally prejudicial and should be equally

unacceptable without the independent evidence of conspiracy and

membership that brings the statement within Fed. R. Evid. 801

(d)(2)(E).

31

dence, petitioner argues, is essential to avoiding

Confrontation Clause problems.*8 In United States v.

Inadi, ___ U.S. ___ 106 S.Ct. 1121 (1986), the dissenting

opinion quoted with approval the following statement:

“Conspirators declarations are good to prove that

some conspiracy exists but less trustworthy to show

its aims and membership. The conspirator’s interest

is likely to lie in misleading the listener into believing

the conspiracy stronger with more members (and

different members) and other aims than in fact it has.

It is no victory for common sense to make a belief

that criminals are notorious for their veracity the

basis for law.”

106 S.Ct. at 1131, (Marshall J., dissenting).°9

Although the majority ultimately reached a different

conclusion with respect to the necessity for an

unavailability requirement, it reasoned in part that a

requirement that the government show unavailability

would be unduly burdensome on the judicial system. 106

S.Ct. at 1128. Without quarreling with the /nadi result,

petitioner notes that the effect of /nadi is to remove an

opportunity in many cases for a defendant to examine a

co-conspirator whose statement is offered. This means

38 Petitioner's final argument, infra, suggests that, if the Court

reads the Federal Rules of Evidence as incorporating the proof

aliunde requirement as most circuits have already done, statements

that are admissible under Fed. R. Evid. 801 (d)(2)(E) generally will

not require an independent Confrontation Clause analysis. But, ifthe

Court holds that a trial judge may rely on the challenged hearsay

statements to support an admissibility ruling, petitioner would argue

that in every case a second-level Confrontation Clause analysis would

be necessary, since there would be no warrant for confidence in either

the reliability or the agency aspect of the statements.

39 Quoting from Levie, Hearsay and Conspiracy, 52 Mich. L. Rev.

1159, 1165-66 (1954).

32

that the foundation requirement for admissibility is as

important, if not more so, today as when Glasser, supra,

was decided. Unless the proponent of a co-conspirator’s

statement can satisfy the minimum standard and per-

suade a trial judge by independent evidence that a state-

ment was made by one co-conspirator as part of a

conspiracy involving the defendant, there is no adequate

basis for admitting the statement on agency or reliability

grounds. Admission would violate the Confrontation

Clause even if it would satisfy Fed. R. Evid. 2801

(d)(2)(E). 4°

The circuits that have utilized the standard advocated

herein have not found problems with it. Indeed, the deci-

sions in these circuits provide clear guidance to trial

judges and to prosecutors as to what is expected of them.

Moreover, the decisions impinge only slightly on the flex-

ibility otherwise provided by Rule 104 (a), since hearsay

other than the very co-conspirator statements to which

objections are made may be considered as part of the

independent evidence. Personei admissions by defend-

ants, for example, commonly provide part of the founda-

tion for admissibility uf statements under Fed. R. Evid.

801 (d)(2)(E).41 Moreover, acts and even statements that

40 Admission would wjolate tne standard set forth by a plurality of

the Court in Dutton viEvans, 400 U.S. 74, 89 (1970) (plurality

opinion): “The decisions of this Court make it clear that the mission of

the Confrontation Clause is to advance a practical concern for the

accuracy of the truth-determining process in criminal trials by assur-

ing that ‘the trier of the fact [has] a satisfactory basis for evaluating

the truth of the prior statement.’ California v. Green, 399 U.S., at

161.” There would be no satisfactory basis for a jury’s evaluating the

relationship of the defendant, against whom a co-conspirator's state-

ment was offered, to the co-conspirator-declarant or to the alleged

conspiracy.

41 F.g., United States v. Ziele, 734 F.2d 1447 (11th Cir. 1984), cert.

denied, 469 U.S. 1189 (1985).

eee

33

are not offered for their truth may be admitted without

raising either hearsay or confrontation problems. 4

III. ASSUMING THAT THE TRIAL JUDGE FINDS BY A

PREPONDERANCE OF THE INDEPENDENT EVI-

DENCE THAT A CONSPIRACY EXISTED THAT

INCLUDED THE CO-CONSPIRATOR AND THE

DEFENDANT, AND THE JUDGE ALSO FINDS THAT

THE CO-CONSPIRATOR’S STATEMENT WAS

MADE DURING AND IN FURTHERANCE OF CON-

SPIRACY, GENERALLY NO ADDITIONAL

RELIABILITY DETERMINATION IS REQUIRED

BY THE CONFRONTATION CLAUSE*

A. The Hearsay Rule And The Confrontation Clause

Protect Similar Interests, But Are Not Identical In

Their Scope

In Dutton v. Evans, 400 U.S. 74 (1970), a plurality of

the Court wrote as follows: “It seems apparent that the

Sixth Amendment’s Confrontation Clause and the eviden-

tiary hearsay rule stem from the same roots. But this

Court has never equated the two, and we decline to do so

now.” Id. at 86 (footnotes omitted). Prior to Dutton, the

Court had determined in California v. Green, 399 U.S.

149, 155-56 (1970), that the Confrontation Clause may be

violated even where hearsay rules are not, and that evi-

dence admitted in violation of long-established hearsay

rules does not lead to a conclusion that there is an auto-

matic confrontation violation.

42 See Tennessee v. Street, 471 U.S. 409 (1985).

43 As noted earlier, the Advisory Committee concluded that a

finding of reliability was not a prerequisite to admission of a co-

conspirator'’s statement. Fed. R. Evid. 801 (d)(2)(E) makes no men-

tion of reliability. Thus, petitioner assumes that if a reliability analy-

sis were to be required, its source would be the Confrontation Clause.

34

Both the hearsay rule and the Confrontation Clause

address similar concerns in a criminal case: to wit, “[an]

underlying purpose to augment accuracy in the factfind-

ing process by ensuring the defendant an effective means

to test adverse evidence.” Ohio v. Roberts, 448 U.S. 56, 66

(1980). The more effective the hearsay rule is in screening

out the least acceptable forms of hearsay, the less pres-

sure is placed on the Confrontation Clause to assure that

defendants are receiving fair trials.

B. Dutton v. Evans Establishes That There May Be Con-

frontation Problems Even Though A Statement

Qualifies For Admission As A Co-Conspirator’s State-

ment

Fight Justices concluded in Dutton v. Evans, 400 U.S.

74 (1970), that the fact that a statement qualified for

admission under a hearsay exception for co-conspirator’s

statements did not automatically mean that it met the

requirements of the Confrontaton Clause. Although four

Justices found that the statement did not violate the

Clause and four dissenters argued that it did, only Justice

Harlan accepted the argument that the Confrontation

Clause did not impose limitations on the definitions of

hearsay and the exceptions to the hearsay rule.*4 Since

Dutton, the Court has reiterated that “(t]he historical

evidence leaves little doubt .. . that the Clause was

intended to exclude some hearsay.” Ohio v. Roberts, 448

U.S. at 63.

The Court has also written, however, that “reliability

can be inferred without more in a case where the evidence

falls within a firmly rooted hearsay exception,” while “[i]n

44 Justice Harlan cast the fifth vote for affirming the conviction. 400

U.S. at 93-100 (Harlan J., concurring in the judgment).

35

other cases, the evidence must be excluded, at least

absent a showing of particularized guarantees of trust-

worthiness.” /d. at 66. In Jnadi, 106S.Ct. at 1124 n.3, the

Court left open the question whether a statement qualify-

ing for admissibility under Fed. R. Evid. 801 (d)(2)(E)

must satisfy an additional reliability standard derived

from the Confrontation Clause.

Petitioner submits that, as long as this Court requires

the trial judge to determine by a preponderance of the

independent evidence that a conspiracy existed and that a

declarant and a defendant were members, and the trial

judge also finds by a preponderance of all the evidence

that a statement was made during and in furtherance of

conspiracy, no additional finding ought to be deemed nec-

essary in the typical case to satisfy the Confrontation

Clause. The evidence rule would be sufficient to protect a

defendant from having statements used when they could

not fairly be attributable to the defendant under an

agency or a reliability analysis.

This argument is consistent with Dutton, supra. The

problem in Dutton was that the Georgia rule was not the

common law, traditional approach to co-conspirator state-

ments, because Georgia had a unique approach to the

termination of a conspiracy. That rule invited the intro-

duction of statements made after the end of any true joint

relationship among former conspirators. Thus, this Court

accordingly tested the statement that was admitted in

that case under a reliability analysis.

Were the Court to weaken the proof aliwnde require-

ment in the instant case, Dutton would indicate that a

defendant should be able to compel a trial judge to make a

Confrontation Clause analysis notwithstanding the

admissibility of evidence under Fed. R. Evid. 801

36

(d)(2)(E). But, as long as the preponderance of the evi-

dence standard and the independent evidence require-

ment are retained, a Confrontation Clause analysis would

be superfluous in the typical case. The advantages, then,

of interpreting the evidence rule to track the approach of

the majority of circuits include not only the clarity pro-

vided by the interpretation, but also the avoidance of

Confrontation Clause arguments in every case in which a

co-conspirator’s statement is offered.

The only cases in which a trial judge should find it

necessary to test a co-conspirator’s statement that falls

within Fed. R. Evid. 801 (d)(2)(E) under the Confronta-

tion Clause are those in which a defendant specifically

objects on Confrontation Clause grounds and articulates

reasons why co-conspirator statements are not only cru-

cial in the case, but also are unusually unreliable. In these

atypical cases, the trial judge should be required to deter-

mine whether the statements should, in fairness, be used

against a defendant who has no opportunity to cross-

examine the declarant.

Dutton, swpra—which involved a statement made by

one alleged co-conspirator, Williams, that was used

against another alleged co-conspirator, Evans, in a case in

which a third alleged co-conspirator, Truett, testified

against Evans—suggests what the atypical cases might

look like:

“First, the statement contained no express assertion

about past fact, and consequently it carried on its

face a warning to the jury against giving the state-

ment undue weight. Second, Williams’ personal

knowledge of the identity and role of the other par-

ticipants in the triple murder is abundantly estab-

lished by Truett’s testimony and by Williams’ prior

conviction. It is inconceivable that cross-examination

could have shown that Williams was not in a position

| ene es pe

37

to know whether or not Evans was involved in the

murder. Third, the possibility that Williams’ state-

ment was founded on faulty recollection is remote in

the extreme. Fourth, the circumstances under which

Williams made the statement were such as to give

reason to suppose that Williams did not misrepresent

Evans’ involvement in the crime. These circum-

stances go beyond a showing that Williams had no

apparent reason to lie to Shaw. His statement was

spontaneous, and it was against his penal interest to

make it. These are indicia of reliability which have

been widely viewed as determinative of whether a

statement may be placed before the jury though

there is no confrontation of the declarant.”

400 U.S. at 88-89 (plurality opinion).

If one alleged co-conspirator, who had reason to believe

that he and others were under investigation, made state-

ments suggesting that another person or several others

were responsible for various things, such statements,

assuming they still might be in furtherance of conspiracy,

might be suspect. They would be even more suspect if the

co-conspirator who made the statements could not have

had personal knowledge about events or the events were

remote so that memory might well be unreliable. The

burden of alleging specific defects and of demonstrating

their significance would have to be borne by a defendant

before the trial judge would need to make a Confrontation

Clause decision.

In holding open the possibility that in unusual cases the

Confrontation Clause might exclude statements that

qualified for admission under Fed. R. Evid. 801 (d)(2)(E),

petitioner suggests that the Court use the same type of

approach, albeit in reverse, that it used in Lee v. Illinois,

supra. Addressing the situation of one defendant's con-

fession implicating another defendant, the Court

38

described its decision in Bruton v. United States, 391

U.S. 123 (1968), as resting on the fact that a confession

that incriminates an accomplice is so “inevitably suspect”

and “devastating” that the ordinarily sound assumption

that a jury will be able to follow faithfully its instructions

could not be applied. 106 S.Ct. at 2063. But the Court

recognized that the presumption could be rebutted and

that a “showing of particularized guarantees of trust-

worthiness” would satisfy confrontation concerns, citing

Ohio v. Roberts. Id. at 2063-64.4°

The presumption under Fed. R. Evid. 801 (d)(2)(E), if

the appropriate standard for preliminary fact finding is

adopted, should be that when the rule is satisfied the

Confrontation Clause is satisfied also.46 Only in cases in

45 Petitioner submits that nothing in Colorado v. Connelly, -

U.S. , 107 S.Ct. 515 (1986), suggests a different result. This

Court rejected the argument by the respondent in Connelly that,

before a confession is admitted against a defendant, a “free will”

determination should be required in addition to a determination that

the government did not coerce a statement from a suspect. The

opinion for the Court clearly indicates that the only argument made

by respondent rested upon the Fifth Amendment privilege against

self-incrimination and the coerced confession doctrine. Connelly

involved the question of the fairness of using an individual's own

statements against him. In the instant case, the issue is whether a

third party’s statement may be used against a defendant, and that

issue involves the Confrontation Clause of the Sixth Amendment.

46 The federal circuits have been divided over the relationship of the

Confrontation Clause to Fed. R. Evid. 801 (d)(2)(E). Some appear to

hold that statements that satisfy the rule never need be examined for

reliability. See, e.g., United States v. Chindawongse, 771 F.2d 840

(4th Cir. 1985), cert. denied, U.S. ——, 106 S.Ct 859 (1986);

United States v. Chiavolo, 744 F.2d 1271 (7th Cir. 1984). That is the

approach taken by the court of appeals in the instant case. 781 F.2d at

543. Other courts have held that satisfaction of the evidence rule does

not necessarily indicate satisfaction of the constitutional standard.

See, e.g., United States v. Pagan, 721 F.2d 24 (2d Cir. 1983); United

ee

39

which the defendant is able to demonstrate particularized

dangers of unreliability with respect to critical prosecu-

tion evidence will the Confrontation Clause have indepen-

dent force.47

States v. DeLuna, 763 F.2d 897 (8th Cir.), cert. denied sub nom.

Thomas v. United States, U.S. , 106 S.Ct. 382 (1985);

United States v. Lopez, 803 F.2d 969 (9th Cir. 1986). Some courts have

noted that confrontation attacks have been consistently rejected but

have not conclusively ruled that an attack will never succeed. See,

e.g., United States v. Dunn, 758 F.2d 30 (1st Cir. 1985). In some

cases, courts have rejected specific confrontation arguments without

clearly indicating whether in other settings the arguments might

prevail. See, e.g., United States v. Alfonso, 738 F.2d 369 (10th Cir.

1984); United States v. Georgia Waste Systems, Inc., 731 F.2d 1580

(llth Cir. 1984). Generally, the federal appellate courts have not

examined the relationship of the standard used for preliminary fact

finding and the Confrontation Clause standard. Petitioner submits

that the preponderance standard, properly focusing on independent

evidence of conspiracy and membership, plus findings with respect to

the timing and the relationship of statements to a conspiracy, would

satisfy confrontation concerns in the vast majority of cases. Peti-

tioner notes that the jurisdiction that has been most burdened with

Confrontation Clause claims is the Ninth Circuit, which has not

adopted the preponderance standard. See, e.g., United States v.

Lopez, supra; United States v. Mouzin, 785 F.2d 682 (9th Cir.), cert.

denied sub nom. Charvigal v. United States, if

S.Ct. 574 (1986); United States v. Jennell, 749 F.2d 1302 (9th Cir.

1984), cert. denied, U.S. , 106 S.Ct. 114 (1985); United

States v. O’Connor, 737 F.2d 814 (9th Cir. 1984), cert. denied, 469 U.S.

1218 (1985); United States v. Ordonez, 737 F.2d 793 (9th Cir. 1984).

47 If petitioner's argument prevails, there will be no need to reach a

Confrontation Clause argument in this case. See note 48 infra. If,

however, the Court holds that conspirator statements may be admit-

ted upon something less than proof by a preponderance of the inde-

pendent evidence of conspiracy and membership, petitioner would

rely upon the Confrontation Clause as well as upon the evidence rule.

In the instant case, no person other than Lonardo made statements

suggesting that there was a conspiracy. Lonardo had his own reasons

40

CONCLUSION

The district court and the court of appeals relied heav-

ily on the contents of taped conversations to conclude that

the government had shown sufficient evidence of conspir-

acy to admit the conversations against petitioner. 4 Peti-

tioner asks the Court to hold that the lower courts used an

for indicating to Greathouse that he had buyers. Yet, petitioner could

not examine Lonardo. Nothing in Lonardo’s statements suggests

reliability.

48 Under the standard of proof for preliminary fact finding that

petitioner urges, there was plainly insufficient evidence to support

the trial judge's ruling. The trial judge made no findings of fact, but

simply accepted the government's argument that Fed. R. Evid. 801

(d)(2)(E) had been satisfied. It is virtually impossible to believe that

the trial judge could have admitted the taped statements for the truth

of the matters asserted therein without relying on the contents of the

statements as the principal, if not the exclusive, basis for finding that

the evidence rule was satisfied. The government offered no evidence

tending to prove that petitioner knew Lonardo prior to the date of

petitioner’s arrest, that petitioner had any knowledge of Lonardo's

relationship to any other prospective purchasers of cocaine, or that

petitioner and Lonardo had done anything more than agree that on a

single occasion one would receive cocaine from the other. On these

facts, if this Court accepts the standard of proof that petitioner

proposes, it would be justified in holding that there was insufficient

independent evidence of conspiracy to warrant admission of the

taped conversations and to spare both sides and the court of appeals

the burden of revisiting the issue.

41

incorrect approach to Fed. R. Evid. 801 (d)(2)(E) and

either to hold that the taped statements were improperly

admitted or to vacate the judgment and remand the case

for further proceedings consistent with a correct

approach.

Respectfully Submitted

JAMES R. WILLIis

(Counsel of Record)

Suite 610, Bond Court Building

1300 East Ninth Street

Cleveland, OH 44114

(216) 523-1100

JAMES M. SHELLOW

Shellow, Shellow & Glynn, S.C.

222 East Mason Street

Milwaukee, WI 53202

(414) 271-8535

STEPHEN ALLAN SALTZBURG

Professor of Law

University of Virginia

School of Law

Charlottesville, VA 22901

(804) 924-3520

Counsel for Petitioner