Amicus Curiae Brief — Bourjaily v. United States

Supreme Court, U.S.

Fllik:D

LEC 99 198

No. 85-6725

fae

Ves.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

WILLIAM 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 OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

SUPPORTING PETITIONER

JUDY CLARKE*

Executive Director

Federal Defenders of San Diego, Inc.

101 West Broadway, Suite 440

San Diego, CA 92101-8297

(619) 234-8467

*Counsel of Record

MARIO G. CONTE

Chief Trial Attorney

Federal Defenders of San Diego, Inc.

FREDERICK M. SCHNIDER

Law Graduate

Federal Defenders of San Diego, Inc.

QUESTIONS PRESENTED

l. Whether, in order to admit an

alleged co-conspirator's declarations

against a defendant under Federal Rule of

Evidence 801(da)(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 determinations, 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?

INTEREST

TABLE OF CONTENTS

OF AMICUS CURIAE

INTRODUCTION AND

SUMMARY OF ARGUMENT

ARGUMENT

1.

The determination that the

defendant and declarant

were members of the same

conspiracy must be based on

evidence independent of the

statements themselves. ..

The determination that the

defendant and declarant

were members of the same

conspiracy must be made by

a preponderance of the

Games 6 oe ec ee 6 6

Courts are constitutionally

obligated to determine

whether co-conspirator

statements admissible under

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

are sufficiently reliable

to comport with the

Confrontation Clause of the

Sixth Amendment.

CONCLUSION.

16

22

45

—————————eeO

TABLE OF AUTHORITIES

Cases

Bruton v. United States,

391 U.S. 123 (1968) .ccccccccccecccsseedd

California v. Green,

399 U.S. 149 (1970) .c cee eeeeeeeeeelddD, 32

oOlorado v ° P

No. 85-660 (U.S. 10 December 1986)....19

Dutton v. Evans,

400 U.S. 74 (1970)....eeeeeeell, 29, 30,

31, 32, 39, 40, 41, 44

Glasser v. United States,

315 U.S. 60 (1942) . cc ercccceceeeeseeeeed

Haggins v. Warden,

715 F.2d 1050 (6th Cir. 1983),

cert. denied, 464 U.S. 1071 (1984)....38

Lee v. Illinois,

106 S. Ct. 2056

(1986) wccccccccceveccedly 29, 30, 44, 45

Lego v. Twomey,

SOG Gello OTF CIBPEdcccccccecccevcccseed®

Nye & Nissen v. United States,

336 U.S. 613 (1949) cc cccecevvvveceserte

Ohio v. Roberts,

448 U.S. 56 (1979)........28, 31, 33, 40

Sealfon v. United States,

332 U.S. 575 (1948) ..cccccccvecceeeseeda

United States v. Alfonso,

738 F.2d 369 (10th Cir. 1984)...... scene

(iv)

United States v. Ammar,

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

464 U.S. 936 (1983)...11, 15, 17, 31, 35

United States v. Andrews,

585 F.2d 961 (10th Cir. 1978)......... 19

United States v. Arbelaez,

719 F.2d 1453 (9th Cir. 1983),

cert. denied, 104 S. Ct. 3543

Co PT TTT TTTT Te e*e @ee#eeee#ee#ee#ee#ee#ee#e 30, 31

United States v. Bourjaily,

781 F.2d 539 (6th Cir. BUwOh cocceceeser 4

United States v. Coe,

718 F.2d 830 (7th Cir. 1983)...9, 11, 17

United States v. Dunn,

738 F.2G 30 (1st Cir. 1986S) ..ccccccces 26

United States v. Enright,

579 F.2d 980 (6th Cir. 1978)..12, 17, 18

United States v. Fieishman,

684 F.2d 1329 (9th Cir.),

cert. denied, 459 U.S. 1044 (1982)....31

United States v. Gantt,

617 F.2d 831 (D.C. Cir. 1980)......... 13

United States v. Garcia-Duarte,

718 F.2d 42 (2d Cir. 1983)........ ll, 17

United States v. Geaney,

417 F.2d 1116 (2d Cir. 1969),

cert. denied, 397 U.S. 1028 (1970)....15

United States v. Gere,

662 F.2d 1291 (9th Cir. 1981)......... 16

(Vv)

United States v. Inadi,

106 S. Ct. 1121

(1986) ..cccccveveeddy 23, 24, 36, 37, 44

United States v. Jackson,

757 F.2d 1486 (4th Cir.), cert. denied,

106 S. Ct. 407 (1985) eee eeeveces ane Ge

United States v. James,

590 F.2d 575 (5th Cir.), cert. denied,

442 U.S. 917 (1979)......-.1l, 13, id, 37

United States v. Layton,

720 F.2d 548 (9th Cir. 1983),

cert. denied, 104 S. Ct. 1423 (1984)..31

United States v. Martorano,

557 F.2d 1 (lst Cis. i977),

‘cert. denied, 435 U.S. 922 (1978)....-. 12

United States v. Massa,

740 F.2d 629 (8th Cir. 1984),

cert. denied, 471 U.S.

1115 (1985)... ecvccceceeeeeeedl, 17, 35

United States v. McLernon,

746 F.2d 1098 (6th Cir. 1984)...++++-- 28

United States v. McMillen,

489 F.2d 229 (7th Cir. 1972)...-+eeee- 43

United States v. Metropolitan

Enterprises, 728 F.2d 444

(10th Cir. 1984). ccccccccedl, 13, 18, i7

United States v. Nardi,

633 F.2d 972 (lst Cir. 1980)... eeeees 11

United States v. Nixon,

418 U.S. 683 (1974) cece eeeeerevenvvces 14

United States v. Ordonez,

737 F.2d 793 (9th Cir. 1984)... eeees 35

(vi)

Unit ates v. Paone,

782 F.2d 386 (2d = te

cert. denied, 107 S. Ct. 269 (1986)...26

United States v. Peacock,

654 F.2d 339 (5th Cir. 1981),

cert. denied, 464 U.S. 965 (1983).....29

United States v. Percevault,

490 F.2d 126 (2d Cir. oc ) 43

United States v. Perez,

658 F.2d 654 (9th Cir. 1981)..11, av, 38

United S*ates v. Petrozziello,

548 F.2d 20 (lst Cir. 1977)...17, 18, 19

nited States y. icco

723 F.2d 1234

(6th Cir. 1983) (en banc),

cert. denied, 466 U.S. 970 (1984)..... 12

United States v. Rogers,

549 F.2d 490 (8th Cir. 1976),

cert. denied, 431 U.S. 918 (1977).....31

Unj States vy. lille,

729 F.2d 615 (9th Cir.),

cert. denied, 105 S. Ct. 156 (1984)...30

J tates v. Van a

726 F.2d 548 (9th Cir.),

cert. denied, 469 U.S. 839 (1984).....22

United States v. Weisz,

718 F.2d 413 (D.C. Cir. 1983),

cert. denied, 465 U.S. 1027 (1984)....12

United States v. Wright,

5988 F.2d 31 (2d Cir. 1978), cert. denied,

SSO Gebe GAT CASTE) ccocccccccccccseedsas OS

,

(vii)

United States v. Xheka,

704 F.2d 974 (7th Cir.),

cert. denied, 464 U.S. 993 (1983)....-29

United States v. Zielie,

734 F.2d 1447 (llth Cir. 1984),

cert. denied, 469 U.S. 1189

(1985) . ce eeeees cocese a ll, 12, 13

onstit a ovisions

Confrontation Clause of the

Sixth Amendment..... -aeeweeestones Passim

Statutes and Rules

18 U.S.Cuw § Zeccccesevsces eccces eccccesta

18 U.S.C.w § B50O0w~ cee w ween vees TETEEETELS. fC.

21 U.S.C. §§ 841(a) (1) and 846.....4+4+4+4-+4

80 U.B.Gs Gee B FABicccocccecsesscccosed

Fed. R. Crim. P. 12 (1) -ccoccccccccscsseeehd

Fed. R. Evid. 104(a)......e-. secoes kd, WB

Fed. R. Evid. 801(C).cccccccccccscccees .7

Fed. R. Evid. 801(d) (2) (E).........Passim

Advisory Committee Notes, Fed. R. Evid.

es ace nee ees bt pobenaceell

Fed. R. Evid. 803(24)...+eeeees eeeeds, 40

Fed. R. Evid. 804(b)(3).....+.+-26, 27, 28

Fed. R. Evid. 804(b)(5)........ a

(viii)

Treatises

McCormick, Handbook on the Law of

EViG@nCe@..cccces *e-e8e#e *e @ @ee#e#e eeescececesecne

5 Wigmore on Evidence..... (ouhbe6esdaoe 26

sce neous

Smith, The Hearsay Rule and The Docket

Crisis: The Futile Search for

Paradise, 54 A.B.A. J. 231 (1968)..... 38

Tribe, Triangulating Hearsay, 87 Harv. L.

Rev. 957 (1974). ...cccccccccce

*-ee 8 @@#e#e#eeees. 40

Note, Fede ule o vidence

Ol(d an Cc ontation

Clause: sin he Window of

Admissibility for Co-conspirator

Hearsay, 53 Fordham L. Rev. 1291

ESO Ocecectcoeces TwETTTLTITTT eeserstd2, 33

(ix)

No. 85-6725

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

WILLIAM 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 OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

SUPPORTING PETITIONER

STATEMENT OF INTEREST OF AMICUS CURIAE

Amicus curiae files this brief with

the consent of Petitioner William J.

Bourjaily through counsel James R. Willis

and Respondent United States of America,

Charles Fried, Solicitor General. The

2

letters of consent from both parties are

on file with the Clerk of the United

States Supreme Court.

The National Association of Criminal

Defense Lawyers, Inc. (NACDL) is a Dist-

rict of Columbia nonprofit corporation

with a membership of more than 4,000

lawyers, including representatives of

every state. The membership consists of

tria! and appellate advocates, law

professc:s and judges who are concerned

with protecting the constitutional and

statutory rights of the accused. NACDL

was founded over twenty-five years ago to

promote study and research in the field

of criminal defense law, to disseminate

and advance the knowledge of the law in

the field of criminal defense practice

and to encourage the integrity,

independence and expertise of defense

lawyers.

3

Among NACDL's stated objectives is

the promotion of the proper admin-

istration of criminal justice. Con-

sequently, NACDL concerns itself with the

protection of individual rights and the

improvement of the criminal law, its

practices and procedures. A cornerstone

of this organization's objective, and of

the criminal justice system, is the

fundamental constitutional protection of

an individual's Sixth Amendment rights.

NACDL is very concerned about any

decision that would undermine or dilute

this constitutional guarantee.

The Amicus Curiae Committee of the

NACDL has discussed this case and decided

that the issues are of such importance to

the fundamental fairness of the trial of

conspiracy cases and the preservation of

the Sixth Amendment Confrontation Clause

+

that NACDL should offer its assistance to

the Court.

INTRODUCTION AND SUMMARY OF ARGUMENT

The petitioner in this case was

convicted of two offenses, possession

with intent to distribute cocaine and

conspiracy to distribute cocaine, in

violation of Title 21, United States

Code, §§ 84l(a)(1) and 846. These

convictions were based, in large part,

on evidence consisting of taped

conversations between a government

informant, who supplied the cocaine, and

petitioner's co-defendant. United States

v. Bourjaily, 781 F.2d 539, 544-45 (6th

Cir. 1986). None of these conversations

made any reference to the petitioner by

name or description. No direct evidence

was presented that petitioner ever

5

communicated with either party to these

conversations. Id. at 541.

Nevertheless, the taped conversa-

tions were admitted over objection as co-

conspirator declarations under Fed. R.

Evid. 801(d)(2)(E). The trial court

utilized the "preponderance of the

evidence" standard in making this

determination. However, the court

improperly relied on the content of the

statements themselves as evidence that

the petitioner and the declarant were

members of the same conspiracy. Id. at

542. The court also failed to determine

whether the statements bore sufficient

indicia of reliability to satisfy the

Sixth Amendment Confrontation Clause.

Proper administration of Fed. R.

Evid. 801(d)(2)(E), especially in

criminal trials, demands that the trial

court find by independent evidence that

S|...

6

the defendant and the out-of-court

declarant were members of the same

conspiracy, before admitting any co-

conspirator declarations at trial. This

finding should be supported by at least a

"preponderance of the evidence." The

court is also constitutionally obligated

to determine whether the statements are

reliable enough to satisfy the

Confrontation Clause of the Sixth

Amendment. These precautions are

dictated by practical, as well as

constitutional, considerations.

ARGUMENT

1. THE DETERMINATION THAT THE DEFENDANT

AND DECLARANT WERE MEMBERS OF THE SAME

CONSPIRACY MUST BE BASED ON EVIDENCE

INDEPENDENT OF THE STATEMENTS

THEMSELVES.

The text and underlying rationale of

Rule 801(da)(2)(E) establish that

admissibility of statements under the

7

rule depends on the existence of a

distinct factual predicate.] Conse-

quently, before a statement is admissible

under the rule, it must be shown that a

conspiracy existed, that both the

defendant and the declarant were members

of the same conspiracy, and that the

statement was made during the course of

and in furtherance of the conspiracy. If

these conditions precedent are not

satisfied, the rule does not come into

play, and the statements fall into the

general category of hearsay, when

offered for the truth of the matter

asserted. Fed. R. Evid. 80l(c).

The fundamental rationale for

1 / Fed. R. Evid. 801(d)(2)(E) provides

that: (dq) A statement is not

hearsay if--(2) the statement 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.

EE ==

8

treating co-conspirator declarations as

nonhearsay is really a fiction. See

Advisory Committee Notes, Fed. R. Evid.

801(d)(2)(E); 28 U.S.C. app. § 718.

Extending the logic of other rules

which provide for the admissibility

of “vicarious admissions," the co-

conspirator exception is likewise

grounded in principles of agency.

According to these principles, a member

of a joint venture authorizes or adopts

any statements made by other members of

the group in furtherance of the joint

venture's objectives. Id.

The agency rationale disappears

altogether if it cannot be shown that the

defendant and the declarant were members

of the same joint venture or conspiracy.

Several cogent reasons require exclusion

of the content of the statements

themselves from this factual inquiry.

9

The most compelling reason for

requiring this determination to be made

on the basis of independent evidence is

that to do otherwise would constitute

unjustified "bootstrapping." ss Vv.

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

plain reading of the rule itself

demonstrates that a purported co-

conspirator statement is incompetent

hearsay unless it is shown that the

defendant and declarant were, in reality,

co-conspirators. Even if details

contained in the out-of-court assertions

are subsequently "verified," those

details still constitute pure hearsay,

and should play no role in vouching for

the nonhearsay status of the statement.

See United States v. Coe, 718 F.2d 830,

836 (7th Cir. 1983). Besides being an

exercise in tautology, such a practice

gives undue weight to the out-of-court

EE

10

assertions, which lack any intrinsic

guarantees of trustworthiness.

In particular, the court is left

with no way of measuring the accuracy,

sincerity or intended meaning of those

assertions. Moreover, when the hearsay

assertions are allowed to help establish

the factual predicate for their own

admission, the quantum of proof required

to show admissibility is blurred. Where

the statements directly implicate the

defendant in the conspiracy, these

statements will unavoidably be heavily

weighted in making the preliminary

determination. Thus, the likelihood that

a statement will be mistakenly admitted

due to hearsay infirmities in its

foundation rises in proportion to the

amount of prejudice it would cause the

defendant at trial. This runs contrary

to the principle that the more "crucial"

:

1l

or “devastating” the out-of-court

statement, the closer scrutiny it merits.

Dutton v. Evans, 400 U.S. 74, 87 (1970).

Other reasons exist for mandating

independent proof that the defendant and

declarant were members of the same

conspiracy. The circuit courts of

appeals are virtually unanimous in their

approval of this requirement. 2 Only the

2 / See, e.g., United States v. Nardi,

633 F.2d 972, 974 (list Cir. 1980);

e t Vv arcia-Duarte, 718

F.2d 42, 45 (2d Cir. i983)? United

States v. Ammar, 714 F.2d 238, 247

(3d cCir.), cert. denied, 464 U.S.

936 (1983)? =United States v.

Jackson, 757 F.2d 1486, 1490 (4th

Cir.), cert. denied, 106 S. Ct. 407

(1985); United States v. James, 590

F.2d 575, 582 (5th Cir.), cert.

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

States v. Coe, 718 F.2d 830, 835

(7th Cir. 1983); United States v.

Massa, 740 F.2d 629, 637-38 (8th

Cir. 1984), cert. denied, 471 U.S.

1115 (1985); United States v. Perez,

658 F.2d 654, 659 (9th Cir. 1981);

United States v. Metropolitan Enter-

prises, 728 F.2d 444, 448 (10th Cir.

1984); United States v. Zielie, 734

_ EE

12

Sixth Circuit accepts the practice of

crediting the statement's content in

making the preliminary finding.3 See,

e.g., United States v. Piccolo, 723 F.2d

1234, 1240 & n.1l (6th Cir. 1983) (en

banc), cert. denied, 466 U.S. 970 (1984);

United States v. Enright, 579 F.2d 980,

985 n.4 (6th Cir. 1978). In fact,

F.2d 1447, 1457 (llth Cir. 1984),

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

United States v. Weisz, 718 F.2d

413, 433 (D.C. Cir. 1983), cert.

denied, 465 U.S. 1027 (1984).

3_/ The First Circuit has given limited

credit to this practice where there

is significant independent evidence

of the existence of the conspiracy

and where the statement sought to be

admitted simply corroborates

inferences which can be drawn from

the independent evidence. United

States v. Martorano, 557 F.2d 1, 12

(lst Cir. 1977), cert. denied, 435

U.S. 922 (1978). The general

practice of the First Circuit is to

require proof of the existence of

the conspiracy by a preponderance of

independent nonhearsay evidence.

See United States v. Nardi, 633 F.2d

972 (lst Cir. 1980).

ee

13

several circuits would exclude the

statement from the entire fact-finding

process required by Rule 801(d) (2) (E).*

Whether or not a statement furthers the

objectives of a given conspiracy

necessarily depends on the content of the

statement itself. The question of

whether the defendant and the declarant

were engaged in a common conspiracy

should not be answered by reference to

out-of-court assertions which cannot be

meaningfully challenged or explored by

the defendant.

Establishing a clear “independent

4 / See, e.g., United States v. James,

590 F.2d 575, 582 (5th Cir.), cert.

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

States v. Metropolitan Enterprises,

728 F.2d 444, 448 (10th Cir. 1984);

United States v. Zielie, 734 F.2d

1447, 1457 (llth Cir. 1984), cert.

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

States v. Gantt, 617 F.2d 831, 844

—_—- —— +

(D.C. Cir. 1980).

14

evidence" rule would promote uniformity

and consistency among the circuits on

this question, as well as resolve

uncertainty within individual circuits

like the First and Sixth. Conversely, to

allow the statements in to prove their

own admissibility would reverse long-

standing law in at least nine circuits.

In addition, this Court has previously

recognized that the preliminary findings

required by Rule 801(d)(2)(E) should be

based on "substantial independent

evidence." United States v. Nixon, 418

U.S. 683, 701 n.14 (1974).

Such a rule also imposes no

unreasonable burden on the prosecution.

The government is still free to prove

that conversations took place between

certain individuals under certain

circumstances without using the substance

of the conversations. The government is

15

also free to use other forms of relevant

evidence which may be inadmissible at

trial, such as affidavits or other

reliable hearsay. See Fed. R. Evid.

104(a). Finally, several circuits allow

the government to make a preliminary

showing of admissibility, then

conditionally introduce the statements

subject to a full showing that they meet

the requirements of Rule 801(d) (2) (E).>

This procedure avoids having the

government present duplicate or awkwardly

ordered proof at trial. Where a

conspiracy has been charged, the

> / See, e.g., United States v. Geaney,

417 F.2d 1116, 1120 (2d Cir. 1969),

cert. denied, 397 U.S. 1028 (1970);

United States v. Ammar, 714 F.2d

238, 247 (3d Cir.), cert. denied,

464 U.S. 936 (1983); United States

v. James, 590 F.2d 575, 582 (5th

Cir.), cert. denied, 442 U.S. 917

(1979); United States v. Metro-

politan Enterprises, 728 F.2d 444,

448 (10th Cir. 1984).

16

testimony may be conditionally admitted

with an instruction that the jury is not

to consider it until a conspiracy is

found beyond a reasonable doubt. Thus,

if a no-conspiracy finding is later made,

the jury must be instructed to ignore the

specific items of testimony conditionally

admitted. E.g., United States v. Gere,

662 F.2d 1291, 1294 (9th Cir. 1981).

In short, the government has ample

Opportunity to present independent

evidence that the defendant and declarant

were co-conspirators without resorting to

the self-referential process of allowing

untried hearsay to prove the conditions

of its own admissibility.

2. THE DETERMINATION THAT THE DEFENDANT

AND DECLARANT WERE MEMBERS OF THE

SAME CONSPIRACY MUST BE MADE BY A

PREPONDERANCE OF THE EVIDENCE.

Like the requirement of "independent

evidence," the requirement that the

17

factual predicate for admitting

statements under the co-conspirator

exception be established by a "“"pre-

ponderance of the evidence" is strictly

followed in most of the circuits. ®

Similar considerations and authority

justify the application of the

preponderance standard to the Rule

801(da)(2)(E) inquiry.

First, compliance with the rule

6 / ted States v. Petrozziello, 548

F.2d 20, 23 (lst Cir. 1977); United

States v. G ia-Duarte, 718 F.2d

42, 45 (2d Cir. 1983); United States

v. Ammar, 714 F.2d 238, 250 (3d

Cir.), cert. denied, 464 U.S. 936

(1983); United States v. James, 590

F.2d 575, 582 (5th Cir.), cert.

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

States v. Enright, 579 F.2d 980, 986

(6th Cir. 1978); United States v.

Coe, 718 F.2d 830, 835 (7th Cir.

1983); United States v. Massa, 740

F.2d 629, 637-38 (8th Cir. 1984),

cert. denied, 471 U.S. 1115 (1985);

United States v. Metropolitan Enter-

prises, 728 F.2d 444, 448 (10th Cir.

1984).

18

itself is not assured by a lesser

standard of proof. If statements could

be admitted upon a prima facie showing,

then statements which are "more likely

than not" beyond the scope of the rule

would still be presented to the jury.

This is especially true given the wide

scope of evidence the court may consider

in making its preliminary finding. Fed.

R. Evid. 104(a)? see United States v.

Enright, 579 F.2d 980, 985 n.4 (6th Cir.

1978); United States v etro ello, 548

F.2d 20, 23 (lst Cir. 1977). The

prospect of an over-inclusive co-

conspirator rule threatens the balance

between adversary interests embodied in

the rule.

Courts have also suggested that the

language of Rule 104(a), which requires

the trial judge to “determine” pre-

liminary questions of admissibility,

19

compels a "preponderance of te evidence"

standard. See, e.g., United States v.

Andrews, 585 F.2d 961, 966 (10th Cir.

1978); Petrozziello, 548 F.2d at 23.

Moreover, the trial courts are by now

familiar with the application of this

standard in the context of determining

the voluntariness of a confession. Lego

v. Twomey, 404 U.S. 477 (1972). Recently

this Court set the "preponderance of the

evidence" standard as the quantum of

proof necessary to show a waiver of

Miranda rights as well. Colorado v.

Connelly, No. 85-660 (U.S. 10 December

1986).

In light of the near unanimous

acceptance of the preponderance standard

by the circuit courts, and the apparently

workable nature of that standard, this

Court should take the opportunity to

affirm the recognized standard and

Ve ———————

20

establish a “preponderance of the

evidence" standard for all 801(d) (2) (E)

inquiries.’

As argued above, establishing a

clear burden of proof under Rule

801(d)(2)(E) would create desirable

uniformity among the circuits on this

recurring issue. That most of the

circuits have already adopted a

preponderance standard suggests that it

is the practical and workable method of

administering Rule 801(d)(2)(E), both at

the trial and appellate levels. The

availability of harmless error analysis

remains to guard against unjustified

reversals of criminal convictions. More

7 / Respondent appears to agree that

"preponderance of the evidence" is

the standard. See Brief for United

States in Opposition to Petition for

Writ of Certiorari, argument l.a.

21

importantly, the preponderance standard

is the only burden of proof consistent

with the trial court's function of

screening out unreliable or unfairly

prejudicial evidence. Under a lesser

standard, this function cannot be

meaningfully exercised, and unjust

convictions will inevitably result.

There was simply no evidence,

independent of the statements, of a

conspiracy in petitioner's case. As

respondent concedes in its Brief in

Opposition to the Petition for a Writ of

Certiorari, neither the buyer nor the

seller of narcotics can be guilty of a

conspiracy and because Greathouse was a

government informant there could not be a

conspiracy between Greathouse and

Lonardo, petitioner's co-defendant.

Lonardo's delivery of the cocaine to

petitioner's car and petitioner's

22

possession of $21,000 likewise does not

establish a conspiracy but rather that

petitioner was either the purchaser or an

"“aider and abettor." See 18 U.S.C. § 2.

Aiding and abetting and conspiracy are

separate crimes. Nye & Nissen v. United

States, 336 U.S. 613 (1949); Sealfon v.

United States, 332 U.S. 575 (1948); see,

e.g., United States v. Van Brandy, 726

F.2d 548 (9th Cir.), cert. denied, 469

U.S. 839 (1984) (defendant convicted of

aiding and abetting bank robbery but

acquitted of conspiracy to rob the bank).

Petitioner was in fact convicted of

possession with intent to distribute

cocaine.

3. COURTS ARE CONSTITUTIONALLY OBLIGATED

TO DETERMINE WHETHER CO-CONSPIRATOR

STATEMENTS ADMISSIBLE UNDER FED. R. EVID.

801(d) (2) (E) ARE SUFFICIENTLY RELIABLE TO

COMPORT WITH THE CONFRONTATION CLAUSE OF

THE SIXTH AMENDMENT.

In United States v. Inadi, 106 S.

23

Ct. 1121 (1986), this Court left open the

question of whether the admission of co-

conspirator statements under Rule

801(da)(2)(E) may nevertheless violate the

Confrontation Clause, absent a showing

that the statements are reliable. Id. at

1124 n.3. This really presents two

questions. First, are co-conspirator

statements inherently reliable such that

their admission can never violate the

Confrontation Clause? Second, if co-

conspirator statements are not inherently

reliable, is there any justification

other than reliability which supports

dispensing with the protections afforded

by the Confrontation Clause in the

context of co-conspirator statements?

The contention that co-conspirator

statements are inherently reliable is not

widely maintained, and ignores con-

ventional wisdom about the conduct and

24

perpetrators of criminal conspiracies.

It has been recognized that:

The unreliability of co-

conspirator declarations as

trial evidence is not merely a

product of the duplicity with

which criminals often conduct

their business. It also stems

from the ambiguities that so

often appear in all casual

conversations, not just those

of outlaws. [Citations

omitted.]) And the difficulties

one has in making sense of

slang and dialect can be

compounded where conspirators

use private codes... .

Inadi, 106 S. Ct. 1121, 1132 (Marshall,

J., dissenting); see Bruton v. United

States, 391 U.S. 123, 141-42 (1968) (co-

defendant statements "intrinsically much

less reliable" than other forms of

hearsay and have been traditionally

viewed with special suspicion (White, J.,

dissenting) ).

The duplicity and ambiguity which

characterize criminal enterprises bears

further comment. Despite the existence

25

of identifiable goals, many conspiracies

are marked by intense competition, mutual

distrust and fear of being discovered.

Each of these factors can motivate the

individual conspirator to mischaracterize

his actions and beliefs. Moreover, since

the conduct is already criminal, many of

the disincentives associated with being

dishonest in the context of a legitimate

business venture do not exist in the

context of a conspiracy. Thus, there is

strong reason to doubt the reliability of

communications between co-conspirators,

more so than communications between

ordinary business partners.

This case is a perfect example of

the inherent unreliability of alleged co-

conspirator statements. Here, the

statements of Lonardo were both crucial

to the government and devastating to the

defense in that they were the only

a E

26

evidence suggesting involvement by a

multiple layer of buyers. In addition,

they were made by a person (Lonardo) with

a motive to lie and an interest in

stringing Greathouse along in order to

make an ultimate purchase. The

statements did not refer to anyone by

name or offer any description of the

purported purchasers sufficient to allow

any independent corroboration of their

truth.

Declar ons ains

Some courts have attempted to skirt

the issue by treating all co-conspirator

statements as "declarations against

interest," which are "presumptively

reliable." See Fed. R. Evid. 804(b) (3);

United States v. Paone, 782 F.2d 386, 391

(2a Cir.), cert. nied, 107 S. Ct. 269

(1986); United States v. Dunn, 758 F.2d

30, 39 (lst Cir. 1985); cf. United States

27

v. Perez, 658 F.2d 654, 662 (9th Cir.

1981) (court considers whether statement

is against interest as part of reli-

ability inquiry). The argument that co-

conspirator declarations are necessarily

reliable as "declarations against

interest" results from an overbroad

reading of Fed. R. Evid. 804(b) (3).

First, if Rule 801(d)(2)(E) were intended

as a discrete subset of declarations

against interest, there would be no

reason to have the rule. In ev.

Illinois, 106 S. Ct. 2056, 2064 n.5

(1986), this Court rejected the state's

categorization of the hearsay confession

of the co-defendant as a simple declara-

tion against interest finding that

"‘tjhat concept defines too large a class

for meaningful Confrontation Clause

analysis." Second, probably just a small

fraction of co-conspirator statements

28

would actually fall within Rule

804(b)(3). Statements made in

furtherance of a conspiracy necessarily

serve the declarant's interest in

achieving the conspiracy's objectives.

However incriminating the statements may

be, the presence of an alternative

motivation for making them distinguishes

them from pure declarations against

interest, which are presumptively

reliable.

F Rooted Hearsa xception

Other courts have held that co-

conspirator statements "fall within a

firmly rooted hearsay exception," from

which reliability can be inferred. See

Ohio v. Roberts, 448 U.S. 56, 66 (1979)

(general statement of the rule); see

also United States v. McLernon, 746 F.2d

1098, 1106 (6th Cir. 1984); United States

v. Xhexa, 704 F.2d 974, 987 n.7 (7th

29

Cir.), cert. denied, 464 U.S. 993 (1983);

United States v. Peacock, 654 F.2d 339,

349 (5th Cir. 1981), cert. denied, 464

U.S. 965 (1983). However, it must be

recognized that the Confrontation Clause

and the hearsay rule are not co-extensive

and that admitting an out-of-court

statement into evidence may still violate

the Confrontation Clause even though the

evidence falls within a recognized

hearsay exception. Dutton v. Evans, 400

U.S. 74, 82, 86 (1970); orn Vv.

Green, 399 U.S. 149, 155-56 1970). In

ee Vv. ois, 106 S. Ct. 2056 (1986),

the Court held that a co-defendant's

hearsay confession inculpating the

defendant was inadmissible under the

Confrontation Clause because it was

unreliable. Co-conspiratos statements

are shrouded by similar concerns of

unreliability in that often such

30

statements involve the use of codes,

boasting, threats or other language

designed to encourage involvement of

potential co-conspirators. "Honesty

among thieves" cannot be presumed and

should certainly not form a presumptive

basis of reliability. It is not a

complex matter for the government to

rebut the presumption of unreliability,

discussed infra, by meeting the Dutton

factors.® See, e.g., Lee v. inois.

8 / See United States v. Alfonso, 738

F.2d 369, 372 (10th Cir. 1984)

(holding that co-conspirator

statement contained sufficient

indicia of reliability and was not

crucial to the prosecution's case);

United States v. Tille, 729 F.2d

615, 621 (9th Cir.) (statement held

to be reliable because four reli-

ability factors from Dutton were

satisfied), cert. denied, 105 S. Ct.

156 (1984); #£=United States vy.

Arbelaez, 719 F.2d 1453, 1460 (9th

Cir. 1983) (statement held to be

reliable because part of an ongoing

transaction about which the

declarant had personal knowledge),

31

Any attempt to circumvent the

Confrontation Clause by simply desig-

nating Rule 801(d)(2)(E) as a “firmly

rooted hearsay exception” ignores the

plain language of the rule, the sense of

Roberts, and the fundamental distinction

cert. denied, 104 S. Ct. 3543

(1584); United States v. Layton, 720

F.2d 548, 561 (9th Cir. 1983)

(statements sufficiently reliable

under a Dutton analysis), cert.

| ed, 104 S. Ct. 1423 (1984);

United States v. Ammar, 714 F.2d

238, 256-57 (3d Cir.) (sufficient

indicia of reliability), cert.

denied, 464 U.S. 936 (1983); United

States v. Fleishman, 684 F.2d 1329,

1340 (9th Cir.) (same), cert.

denied, 459 U.S. 1044 (1982); United

States v. Perez, 658 F.2d 654, 66l1-

62 (9th Cir. 1981) (testimony

reliable because of surrounding

circumstances); cf. United States v.

Wright, 583 F.2d 31, 38 (2d Cir.

1978) (pre-Roberts case in which

testimony was found to be reliable

and neither crucial nor

devastating), cert. denied, 440 U.S.

917 (1979); United States v. Rogers,

549 F.2d 490, 500-02 (8th Cir. 1976)

(same), cert. denied, 431 U.S. 918

(1977).

32

between the reliability of an out-of-

court statement and the right of

confrontation. As this Court stated in

Dutton v. Evans, 400 U.S. 74 (1970):

[(Tjhe mission of the

Confrontation Clause is to

advance a practical concern

for the accuracy of the truth-

determining process in criminal

trials by assuring that "the

trier of fact [has] a satis-

factory basis for evaluating

the truth of the prior state-

ment."

Dutton, 400 U.S. at 89 (quoting Cali-

fornia v. Green, 399 U.S. 149, 161

(1970)). The circuits which treat co-

conspirator statements as within a

"firmly rooted hearsay exception" have

made no effort to justify this treatment

as a function of the statement's

reliability. See Note, de ule of

Evidence 801(d)(2)(E) and the on-

tation Clause: Closing the Window of

Admissibility for Co-conspirator Hearsay,

33

53 Fordham L. Rev. 1291, 1310 (1985).

Certain hearsay exceptions have been

recognized as “firmly rooted," e.g.,

"dying declarations," business records,

public records, and prior trial testimony

subject to cross-examination. obe ,

448 U.S. at 66 n.8. In general, the

hearsay exceptions would qualify for this

presumption of reliability because

reliability is a factor in each of the

exceptions. ? Party admissions are

admitted not because of inherent

reliability but because the party is

directly responsible for the statement

9 / The "catchall" exceptions, Fed. R.

Evid. 803(24) and 804(b)(5),

authorize the use of hearsay that

calries certain indicia of

trustworthiness. All of the hearsay

exceptions contained in Rules 803

and 804 have reliability or

trustworthiness underpinnings. See

McCormick, Handbook on the Law of

Evidence § 269, at 628; 5 Wigmore on

Evidence §§ 1420, 1422.

ee

34

and may explain it away if it is

untrustworthy or untrue. Co-conspirator

statements, grounded in the concept of

agency admissions, are not necessarily

trus worthy nor can a party simply

explain away what may have been meant by

another person.10 While in many

instances, co-conspirator statements

which meet the criteria of admission by a

preponderance of independent evidence of

a conspiracy will be sufficiently

reliable to satisfy the Confrontation

Clause, such statements should not be

considered sufficiently reliable in and

10 _/ Statements of co-conspirators made

in the presence of the defendant

against whom they are sought to be

admitted may gain some inherent

reliability because of the

defendar.t's ability to refute what

is said within his or her hearing

and ability to respond. See Fed. R.

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

35

of themselves to justify dispensing with

the defendant's right to confrontation.

See United States v. Wright, 588 F.2d 3l,

37-38 (2d Cir. 1978), cert. denied, 440

U.S. 917 (1979)? United States v. Ammar,

714 F.2d 238, 255 (3a Cir.), cert.

denied, 464 U.S. 936 (1983); United

States v. Massa, 740 F.2d 629, 639 (8th

Cir. 1984), . denied, 471 U.S. 1115

(1985); United States v. Ordonez, 737

F.2d 793, 802 (9th Cir. 1984). These

courts acknowledge that the rationale for

admitting co-conspirator statements has

nothing to do with their inherent

reliability. Rather, concerns of

fairness and necessity justify the

admission of statements under Rule

801(d)(2)(E). See, e.g., Ammar; Massa.

Determining Reliability

Concerns of adversarial fairness and

necessity underlie this Court's recent

36

decision in Inadi, which dispensed with

the unavailability requirement under Rule

801(d) (2) (E). United States v. Inadi,

106 S. Ct. at 1126-29. The Court

reasoned that the practical burden

imposed on the prosecution to locate and

produce an absent declarant was not

justified by the "marginal protection" to

the defendant achieved by an unavail-

ability rule. This Court indicated that

the admissibility of statements under

Rule 801(d)(2)(E) is not a function ef

their inherent reliability, nor is it

really an application of agency

principles. Rather, Rule 801(d) (2) (E)

comprehends the tension between the

government's need to gather evidence of

criminal activity, and the inherent

secrecy and impenetrability of criminal

conspiracies.

Thus, the primary function of Rule

37

801(da)(2)(E) is to “obtain evidence of

the conspiracy's context which cannot be

replicated," or “to recapture the

evidentiary significance of statements

made when the conspiracy was operating in

full force." Id. at 1126, 1127.

These considerations may justify

allowing co-conspirator statements into

evidence without a showing that the

declarant is unavailable. These same

considerations, however, cannot support a

rule which does not distinguish between

reliable and unreliable evidence. The

government's compelling interest in

“recapturing the evidentiary signifi-

cance" of statements made during a

conspiracy is not served by a rule which

allows any statement into evidence,

without regard to its accuracy, security

or intended meaning. The potential for

prejudice to the defendant under such a

38

system is almost unchecked.

"Reliability is the key to the

hearsay rule and the confrontation

clause." Haggins v. Warden, 715 F.2d

1050, 1056 n.6 (6th Cir. 1983), cert.

denied, 464 U.S. 1071 (1984).12 In the

case of out-of-court statements which are

not inherently reliable, the trial court

is obligated to decide whether they are

reliable enough to admit into evidence,

without giving the defendant an

opportunity to test the statements by

cross-examination. This is not an

1l_/ The court quoted Judge Talbot Smith:

"Any rule, I submit, requiring

thirty-two exceptions to explain its

operation is not a rule at all but a

nonexistent Eudoxian universe.

; What we really determine in

our everyday lives is not whether a

report is hearsay, but whether it is

reliable." Smith, The Hearsay Rule

and The Docket Crisis: The Futile

Search for Paradise, 54 A.B.A. J.

231, 235-36 (1968).

39

arduous procedure. Under the four-part

test established in Dutton v. Evans no

denial of confrontation occurs when:

1) the statement does not contain

express assertions about past

facts;

2) the declarant's personal knowl-

edge of the recited facts is

established by independent

evidence;

3) the statement is not likely to

have been based on faulty

perceptions; and

4) the circumstances surrounding the

statement tend to show that the

declarant had no motive to

falsify the content of the

statement.

Dutton, 400 U.S. at 88-89. These factors

incorporate the traditionally recognized

elements for reliability in hearsay or

40

any testimony, i.e., the quality of the

declarant's memory, clarity of

expression, perception and sincerity.

See Tribe, Triangulating Hearsay, 87

Harv. L. Rev. 957, 958-61 (1974).

The determination of reliability

does not require the government to

shoulder an onerous burden, but rather,

can be framed in terms of a showing of

"particularized guarantees of trust-

worthiness." Roberts, 448 U.S. at 66;

Fed. R. Evid. 803(24), 804(b)(5). If the

declarant is available to the parties to

subpoena or interview, the statements may

take on a higher initial form of

reliability in that the declarant can be

examined to determine satisfaction of the

Dutton factors. Should the factors be

met, the burden would then shift to the

defendant to demonstrate why reliability

is still lacking.

41

However, if the declarant is

unavailable, the government should then

shoulder the burden of demonstrating why

the statements have "“particularized

guarantees of trustworthiness" sufficient

to allow their admission without

confrontation by the defense. The

quantum of trustworthiness that will

suffice can be measured by the Dutton

factors as well as whether or not the

statements were some other form of cross-

examined testimony of the unproduced

witness, thus providing the defendant

with some minimal confrontation

protections.i¢ As noted earlier,

12 / The government should be required to

make a showing that the statements

satisfy all four of the Dutton

factors because co-conspirator

declarations contain no basis in

trustworthiness, and must overcome

the weaknesses of ambiguity,

insincerity, faulty perception, and

erroneous memory either of the

declarant or the testifying witness.

rae

42

Lonardo's statements as admitted against

petitioner were completely unreliable.

There was no reference to petitioner by

name nor even any identifying

characteristics and certainly the

circumstances were such that Lonardo had

many reasons to exaggerate or lie to

Greathouse in order to consummate an

eventual sale. See supra pp. 25-26.

In the absence of a showing of

availability of the declarant to the

defense or other forms of evidence

showing that the defendant was present

when the statements were made, the

government must bear the burden of

establishing the reliability of co-

conspirator statements. Unlike civil

cases where there is substantial pre-

trial discovery available to both

parties, criminal defendants are limited

in their pre-trial access to information

43

by strict federal rules.}3 See Fed. R.

Crim. P. 12(i) and 16; 18 U.S.C. § 3500.

Consequently, most defendants are unaware

of co-conspirator statements and are

surprised by their introduction at trial.

The tension between the

government's burden and traditional

notions of confrontation must not

abrogate the latter completely. Under

this alternative, confrontation may be

diluted but not wholly extinguished.

13 / There is no definitive ruling

regarding whether a defendant is

entitled to the pre-trial productior

of statements of co-conspirators.

Compare United States v. Percevault,

490 F.2d 126, 131 (2d Cir. 1974)

(production of co-conspirator

statements made by prospective

government witnesses not required),

and Vv , 489

F.2d 229 (7th Cir. 1972) (same),

with United States v. Jackson, 757

F.2d 1486 (4th Cir. 1985) (defendant

entitled to disclosure if co-

conspirator not a prospective

government witness and disclosure

does not unnecessarily reveal

sensitive information).

44

The Dutton test cannot substitute

for the right to actually confront and

cross-examine adverse witneses. It can,

however, provide a measure of protection

for the defendant who is confronted at

trial, not by his accuser, but by a "very

large box of tapes." Inadi, 106 s. ct.

at 1135 (Marshall, J., dissenting). In

this situation, the Confrontation Clause

minimally requires that co-conspirator

declarations be examined for "indicia of

reliability.™ As this Court recently

stated in Lee v. Illinois, 106 s. Gs.

2056, 2062 (1986):

(Tjhe right to confront and

cross-examine adverse witnesses

contributes to the estab-

lishment of a System of crim-

inal justice in which the

perception as well as the

reality of fairness prevails.

To foster such a System, the

Constitution provides certain

safeguards to Promote to the

greatest possible degree

society's interest in having

the accused and the accuser

45

engage in an open and even

contest in a public trial. The

Confrontation Clause advances

these goals by ensuring that

convictions will not be based

on the charges of unseen

and unknown--and hence

unchallengeable--irdividuals.

CONCLUSION

The Judgment of the Court of Appeals

for the Sixth Circuit should be reversed.

Respectfully submitted,

JUDY CLARKE*

Executive Director

Federal Defenders of San Diego, Inc.

101 West Broadway, Suite 440

San Diego, CA 92101-8297

(619) 234-8467

*Counsel of Record

MARIO G. CONTE

Chief Trial Attorney

Federal Defenders of San Diego, Inc.

FREDERICK M. SCHNIDER

Law Graduate

Federal Defenders of San Diego, Inc.

On Behalf of the National

Association of Criminal Defense

Lawyers as Amicus Curiae Supporting

Petitioner

December 1986