Opposition Brief — Gibbs v. United States

—"

~ ‘ities -Suprene Court, U.S,

tt FILED

No. 84-364 NOV 28 1964

Pra rtebetaennbeS TEV AS,

CLERK

Iu the Supreme Court of the Hnifed States

OCTOBER TERM, 1984

STEPHEN GIBBS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

VINCENT L. GAMBALE

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the trial court, in finding that there was a

sufficient evidentiary basis for admission of co-conspirator

Statements against petitioner under Fed. R. Evid.

801(d)(2)(E), properly relied on the presumption that a

conspirator’s membership continues in the absence of evi-

dence of withdrawal.

2. Whether the Confrontation Clause was violated by

admission of co-conspirator statements under Rule

801(d)(2)(E).

(I)

Se

TABLE OF CONTENTS

Page

Opinion below ...... cece eee cee eeeseeeeseecees l

Es dea ed CS dw RARE WAR hse bneekeeb ees l

PE Sheen ceasraeatess eae tore Mcmaie es l

EOL TPCT eT TTT ee TT COTTE TT Tree 6

Conclusion ES er eee ee eer ee eee 12

TABLE OF AUTHORITIES ©

Cases:

Dutton v. Evans, 400 U.S. 74 ..........46. 10, 12

Hyde v. United States, 225 U.S. 347 ........... 7

Ohio v. Roberts, 448 U.S. 56 ......... 8,9, 10, 11

Ottomano v. United States, 468 F.2d 269,

Gort. Gemsed, 409 US. TEZB ow. cece cccccees 10

Ulster County Court v. Allen,

AEE ee 6

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

cert. denied, No. 83-319 (Oct. 31, 1983) ... 11, 12

United States v. Arnott, cert. denied,

PUG, Gomes Cat. 31, OSES) occ sccnsccccss &

United States v. Basey, 613 F.2d 198,

Ce a SS, 7

United States v. Blackshire, 538 F.2d 569,

GSE OU Kk cece ewacvnceccces 7

United States v. Boyd, 610 F.2d 521,

eas Cee, GU U0.te. PUD ns cence wn cccccccns 7

United States v. Burroughs, 650 F.2d 595,

ae ey 10

(IIT)

qT

IV

Page

Cases—Continued:

United States v. Hamilton, 689 F.2d 1262,

Oe es Se SU, DOT eo hecbe buss dicctces 6

United States v. Inadi, No. 83-1882

Ce Se, BE UE. esac tse ccnhancecnss 11

United States v. James, 609 F.2d 36,

Ge, Ge, Se es hhc ka hd wees cas iese 7

United States v. Kelley, 526 F.2d 615,

Cart, Geese, GOS Wes DEE 6066 eurcncccscvcss 11

United States v. Kendall, 665 F.2d 126,

re, I. Ge ara: EE Kc edd Sk c kh dceens 10

United States v. Lurz, 666 F.2d 69,

certs. denied, 455 U.S. 1005 and

ae Se kaka RRO RK oh Reka ee kia 10

United States v. Ordonez, 737 F.2d 793 ....... 11

United States v. Papia, 560 F.2d 827 .......... 10

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

cert. denied, No. 82-1069 (Nov. 7, 1983) ...... 10

United States v. Pearson, 508 F.2d 595,

ome 8k Oe 7

United States v. Perez, 658 F.2d 654 .......... 12

United States v. Snow, 521 F.2d 730, i

oprt. Genied, 423 U5. BORD nn ccc ceceeens 11 lj

United States v. Wright, 588 F.2d 31, '

ae Ee ee 1]

United States v. Xheka, 704 F.2d 974,

cert. denied, No. 83-338 (Nov. 28, 1983) ....... 6

|

a

Page

Constitution, statute and rules:

U.S. Const. Amend. VI (Confrontation

RN ihe on ae nlite aa oa Ware 4, 5,8, 9, 10, 11, 12

Se ECD, 60:4 0456 0009104000%40 0 l

Fed. R. Evid. :

Se ED Se cknk en ikedewedbauniiacum 9

PL PE sc ck deadvadacucdeusecue 6, 7,8

Pe ILD nhc ibaacceacaeeed 4, 6, 9, 10

PE Shen cavdcccaneekevnndeamens 10, 11

WE Se ken 0n00's0%0b46ks4ka a 10

Miscellaneous:

4 D. Louisell & C. Mueller, Federal Evidence

FREE 0b UC G0N6CAd Eo cewe ee ts ela bes 6

ee eae

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-364

STEPHEN GIBBS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the en banc court of appeals (Pet. App.

la-44a) is reported at 739 F.2d 838.

JURISDICTIC N

The judgment of the en banc court was entered on June

15, 1984. A petition for rehearing was denied on July 11,

1984 (Pet. App. 47a). The petition for a writ of certiorari

was filed on September 5, 1984. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Following a jury trial in the United States District

Court for the Eastern District of Pennsylvania, petitioner

was convicted of conspiracy to distribute marijuana, in

violation of 21 U.S.C. 846. He was sentenced to a term of

ten years’ imprisonment.

(1)

2

The evidence at trial is detailed in the opinion of the court

of appeals (Pet. App. 3a-9a). Petitioner did not dispute that

in 1980 Joseph Quintiliano (Quintiliano) headed a conspi-

racy to import marijuana into the United States from

Colombia with the intent to distribute it. Other members of

the conspiracy were Quintiliano’s brother Jerry, Prentiss

Breland, Michael O’Lonney, Alejandro Rizo, Charles

Bilella, and David White.' In March 1980, Quintiliano paid

$40,000 for a Beechcraft airplane to transport marijuana

from Colombia to Pennsylvania. Between April and Sep-

tember 1980, the conspirators repweired the plane, equipped

it for smuggling, and took it on seve/al test flights. In late

September, Breland flew the plane from Pennsylvania to

Florida, and on October 4 he flew it from Florida to

Colombia. On October 5, Breland was arrested a few hours

after landing in Florida for refueling en route back to

Pennsylvania. The plane was searched, and more than

$400,000 worth of marijuana was seized. Pet. App. 3a-4a.

There was evidence showing that petitioner participated

in the conspiracy as the intended purchaser of the mari-

juana. The evidence linking petitioner to the conspiracy fell

into three categories. First, surveillance showed that on

April 7, 1980, petitioner traveled to the Philadelphia area

for a meeting with Quintiliano. Petitioner flew to Philadel-

phia and was met by David White, who then flew him to

meet Quintiliano at a suburban airport. Surveillance offic-

ers testified that Quintiliano met petitioner at the airport

and drove him toa restaurant where other conspiracy meet-

ings occurred. After conversing privately, Quintiliano and

petitioner went to another airport where the Beechcraft was

located, and together they inspected the plane. They were

'Rizo was tried and convicted with petitioner. The trial of Breland

was severed, and the other conspirators pleaded guilty to the indictment

(Pet. App. 3a n.1).

3

followed from the airport by officers who observed them

looking around in an apparent effort to detect surveillance.

Quintiliano also engaged in several evasive driving maneu-

vers. Pet. App. Sa.

The second category of evidence consisted of statements

made by Quintiliano. Bilella and White testified that in the

spring of 1980, when Quintiliano purchased the Beechcraft,

he stated that he planned to sell the marijuana toa customer

named “Jake” with whom he had dealt before. On April 6,

1980, the day before petitioner's visit to the Philadelphia

area, Quintiliano told White that “Jake” was growing impa-

tient and was coming for a visit the next day to see the

preparations first-hand. White iestified that the following

day he went to Philadelphia and met petitioner, who identi-

fied himself as “Jake” and matched the description of

“Jake” given by Quintiliano. Pet. App. 5a-6a. Bilella gave

similar testimony, stating that in early October, Quintiliano

told him that he had made arrangements to sell the mari-

juana to people from Florida who had offered more money

than “jake.” Pet. App. 6a.

White and Bilella also testified to a series of events at

Quintiliano’s home on October 4, 1980. Bilella stated that

while in Quintiliano’s home early that evening, he heard

Rizo and Quintiliano discussing the sale of the marijuana to

buyers from Florida. Quintiliano became dissatisfied

because the Floridians were unable to pay cash in advance.

Quintiliano stated that he had telephoned “Jake” to see if he

would buy the marijuana and that “Jake” had agreed to “try

to make the necessary arrangements.” Pet. App. 6a & n.5.

White also testified regarding Quintiliano’s account of a

telephone call to “Jake” in which “Jake” reportedly agreed

to buy the marijuana but needed time to obtain the neces-

sary funds. White further stated that he heard Quintiliano

instruct his brother Jerry to call “Jake” from a pay phone.

4

Quintiliano asked White for permission to store the mari-

juana in his shop until “Jake” got the money, and at about

12:30 a.m. on October 5, White, Quintiliano, and other

conspirators met at White’s shop to clear storage space for

the marijuana. Pet. App. 7a-8a.

The third category of evidence consisted of telephone

records showing long distance calls made from Quintil-

iano’s house in Pennsylvania to petitioner’s home in Massa-

chusetts and to his electronic paging service. Many of these

calls corresponded closely to the dates and times of impor-

tant events in the conspiracy. Pet. App. 8a-9a.

2. On appeal, petitioner argued that the district court

had erred in admitting Quintiliano’s out-of-court state-

ments to White and Bilella under the exemption from the

hearsay rule for co-conspirator statements (Fed. R. Evid.

801(d)(2)(E)). Petitioner asserted that there was insufficient

independent evidence to establish either that he was a

member of the conspiracy at the time the statements were

made or that the statements were made in furtherance of the

conspiracy, as Rule 801(d)(2)(E) requires. In addition, he

argued that admission of the statements violated the Con-

frontation Clause because the government had failed to

establish that the statements were reliable and that Quintil-

iano was unavailable to testify at trial.

A panel of the court of appeals initially reversed petition-

er’s conviction, but the court granted rehearing en banc and

affirmed his conviction. The en banc court concluded that

“the district court did not err in its determination that the

Government met its burden of establishing by a preponder-

ance of independent evidence that [petitioner] was involved

in the conspiracy at the time of Quintiliano’s statements”

and that these statements were made in furtherance of the

conspiracy (Pet. App. 15a-17a). The court noted (Pet. App.

12a-13a) that the suspicious circumstances of petitioner’s

i]

5

April 1980 visit with Quintiliano—“the principal conspira-

tor”—“permit[ted a reasonable inference of [his] complicity

in the enterprise then under way.” With respect to petition-

er’s continued involvement in the conspiracy six months

later, when most of the co-conspirator declarations in issue

were uttered, the court held that “[b]ecause there [was] no

evidence that [petitioner] withdrew from the [on-going]

conspiracy after April, his involvement may be deemed to

have continued until October” (id. at 14a-15a (footnote

omitted)).

Turning to petitioner’s Confrontation Clause argument,

the court held that petitioner had waived the issue of

unavailability by failing to make a timely objection at trial,

thereby preventing the government from correcting any

defect by calling Quintiliano to testify or demonstrating his

unavailability. The court noted (Pet. App. 17a n.21) that the

only argument made by petitioner challenging the reliabil-

ity of the evidence was that “Quintiliano had reason to, and

did, fabricate [petitioner’s] involvement in the conspiracy.”

The members of the majority disagreed on the question

whether co-conspirator statements must satisfy an inde-

pendent test o reliability, but the court stated that all

members of the majority agreed that the statements were

sufficiently reliable to satisfy any such test (ibid.).?

2Judge Rosenn, joined by Judges Aldisert and Gibbons dissented.

Judge Rosenn argued that petitioner’s conviction should be reversed on

Confrontation Clause grounds because it rested largely on “untested,

devastating hearsay” and the government “failed to establish * * * that

the declarant [Quintiliano] cannot be produced for trial” (Pet. App.

36a, 42a). He concluded that this issue “was timely raised, even if the

objection came at the close of the Government’s case” and, in any event,

was reviewable under the plain error rule (id. at 41a-42a). Chief Judge

Seitz, in a separate dissent, “would [have] vacate{[d] and remand[ed] to

afford the government an opportunity to discharge its burden of show-

ing that Quintiliano was unavailable at the time of the trial” and for the

district court’s determination of the trustworthiness issue (id. at

42a-43a).

6

ARGUMENT

1. Petitioner first argues (Pet. 9-16) that the court of

appeals erred in relying on a presumption of his continuing

involvement in the conspiracy to justify the admission

against him under Fed. R. Evid. 801(d)(2)(E) of certain

co-conspirator statements. This argument is without merit.’

“A party may renounce a conspiracy before its termination,

and statements made thereafter by other conspirators are

not within the exception when offered against him. But the

party’s participation in the conspiracy, once shown, is pre-

sumed to continue, and absent affirmative conduct on his

part to get out, he will be deemed to continue to be a

member of the endeavor for purposes of the exception.” 4

D. Louisell & C. Mueller, Federal Evidence § 427, at 340

(1980) (footnote omitted). See also United States v. Xheka,

704 F.2d 974, 986 (7th Cir. 1983), cert. denied, No. 83-338

(Nov. 28, 1983); United States v. Hamilton, 689 F.2d 1262,

1268-1269 (6th Cir. 1982), cert. denied, 459 U.S. 1117

(1983).4

Petitioner appears to accept the validity of the presump-

tion of continuing membership ina conspiracy to prove that

a person is guilty of the crime of conspiracy or of substan-

tive offenses committed by co-conspirators (see Pet. 14-16).

But petitioner argues (Pet. 16 (footnote omitted)) that

“importation of a concept of substantive conspiracy law

3None of the dissenting judges below accepted this argument (see Pet.

App. 30a n.4).

4Contrary to petitioner’s claim (Pet. 11), Ulster County Court v.

Allen, 442 U.S. 140 (1979), has no bearing whatever on this case. The

discussion in that case on which petitioner relies (see 442 U.S. at 166

n.28) is confined to “criminal statutory presumption[s]” such as the

state statute involved in A/len providing that the presence of a firearm in

an automobile is presumptive evidence of its illegal possession by all

persons then occupying the vehicle. A presumption not strong enough

to prove guilt of a criminal offense may be more than sufficient with

respect to a preliminary question regarding the admissibility of evi-

dence. See Fed. R. Evid. 104(a).

J

into the evidentiary rule is unwarranted and unfair.” How-

ever, logic dictates that if the presumption may be employed

in assessing guilt (which requires proof beyond a reasonable

doubt by competent evidence), then surely the same pre-

sumption may be used in considering a preliminary ques-

tion of admissibility (see Fed. R. Evid. 104(a)).

Petitioner suggests (Pet. 1 1-14) that the passage of several

months during which he was not shown to have committed

any overt acts in furtherance of the conspiracy was suffi-

cient to prove that he withdrew. It is hornbook law, how-

ever, that the mere passage of time is not sufficient to show

withdrawal from a conspiracy the object of which may take

some time to accomplish. See, e.g., United States v. Basey,

613 F.2d 198, 202 (9th Cir. 1979), cert. denied, 446 U.S. 919

(1980); United States v. Blackshire, 538 F.2d 569 (4th Cir.),

cert. denied, 429 U.S. 840 (1976). Certainly drug conspira-

cies like the one in this case are often of considerable

duration.

Finally, petitioner claims (Pet. 11-14) that certain of the

co-conspirator statements proved his withdrawal. This

argument is also without merit. It is well-established that

withdrawal from a conspiracy requires “affirmative action

* * * to disavow or defeat” the conspiracy’s purpose. Hyde

v. United States, 225 U.S. 347, 369 (1912). Accord, United

States v. Boyd, 610 F.2d 521, 523 (8th Cir. 1979), cert.

denied, 444 U.S. 1089 (1980); United States v. James, 609

F.2d 36, 41 (2d Cir. 1979), cert. denied, 445 U.S. 905 (1980);

United States v. Pearson, 508 F.2d 595, 597 (Sth Cir.), cert.

denied, 423 U.S. 845 (1975). The co-conspirator statements

on which petitioner relies do not show that he took any such

affirmative action. At most, they suggest that he was

outbid—temporarily and perhaps without his knowledge—

by another buyer. Moreover, subsequent evidence estab-

lished petitioner’s continued membership. Telephone toll

records showed a flurry of telephone calls from Quintiliano

to petitioner and his paging service in September and

8

October 1980 on dates corresponding to significant events

in the drug importation scheme. Co-conspirator statements

made by Quintiliano in October also confirmed petitioner's

continued role as the intended purchaser of the marijuana.

If petitioner may rely on co-conspirator statements to show

withdrawal, the government, having already established the

existence of the conspiracy and petitioner’s membership in

it, should be permitted to rely on co-conspirator statements

to refute such a claim of withdrawal. While most courts of

appeals, including the court below, require independent

proof of the existence of a conspiracy before permitting

admission of co-conspirator statements, the Federal Rules

of Evidence generally allow reliance on hearsay with respect

to preliminary questions of admissibility (Rule 104(a)).

When a defendant relies on co-conspirator statements to -

show withdrawal from the conspiracy, there are no grounds

for precluding the government’s reliance on similar state-

ments to refute that showing.5 Prohibiting such reliance

would lead to manifest unfairness by allowing, for example,

admission of only one-half of a conversation in which two

co-conspirators disputed whether another member of the

conspiracy had withdrawn.

2. Petitioner also contends that admission of co-conspira-

tor Quintiliano’s out-of-court statements under the co-

conspirator exemption violated the Confrontation Clause

as construed in Ohio v. Roberts, 448 U.S. 56 (1980). This

argument has no merit.

5As noted, most of the courts of appeals, including the court below in

this case, require independent evidence of the existence of a conspiracy

before admitting co-conspirator statements. See United States v.

Arnott, cert. denied, No. 82-2028 (Oct. 31, 1983) (White, J., dissenting

from denial of certiorari). If correct, this rule must be an exception to

Fed. R. Evid. 104(a), which expressly allows reliance on hearsay in

making decisions regarding preliminary questions of admissibility.

Assuming this exception is valid, there is no cause for extending it to

encompass the separate issue of withdrawal.

9

a. The court of appeals correctly concluded (Pet. App.

19a) that petitioner failed to preserve this claim at trial and

consequently could not raise it on appeal. Fed. R. Evid.

103(a)(1). As the court noted (Pet. App. 18a), petitioner

objected to the statements only on the ground that the

government had failed to establish an evidentiary predicate

for their admission under Rule 801(d)(2)(E); the Confronta-

tion Clause issue “was never raised by [him] during trial”

(Pet. App. 19a). By failing to raise this claim at trial, peti-

tioner deprived the government of the opportunity to cure

any defect, such as by calling Quintiliano to testify or show-

ing his unavailability. Petitioner makes no effort to show

that a proper, timely objection was made at trial, thereby

apparently conceding this dispositive issue.

b. In any event, petitioner’s Confrontation Clause claim

lacks merit. In Ohio v. Roberts, supra, the Court rejected

a Confrontation Clause challenge to the admission of testi-

mony given ata preliminary hearing. The Court stated (448

U.S. at 65) that “[t]he Confrontation Clause operates in two

separate ways to restrict the range of admissible hearsay.”

First, the Court stated (ibid.), the prosecution must some-

times demonstrate that the declarant is unavailable as a

witness, although the Court added (id. at 65 n.7) that “{a]

demonstration of unavailability * * * is not always re-

quired.” Second, the Court observed (id. at 65-66), the

Confrontation Clause contains a requirement that the evi-

dence be reliabie; but the Court noted (id. at 66) that “[r]eli-

ability can be inferred without more in a case where the

evidence falls within a firmly rooted hearsay exception.”

The statements in this case were admissible under Roberts.

Neither Roberts nor any other decision of this Court

conditions the admission of co-conspirators’ statements

upon a showing that the declarant is unavailable as a wit-

ness or that his statements are reliable for reasons in addi-

tion to the fact that they fall within Fed. R. Evid.

10

801(d)(2)(E). A number of courts of appeals have held that

statements falling within the co-conspirator exemption

from the hearsay rule automatically satisfy Confrontation

Clause standards. See, e.g., United States v. Lurz, 666 F.2d

69, 80-81 (4th Cir. 1981), certs. denied, 455 U.S. 1005 and

457 U.S. 1136 (1982): United States v. Kendall, 665 F.2d

126, 133 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982);

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

cert. denied, No. 82-1069 (Nov. 7, 1983); United States v.

Burroughs, 650 F.2d 595, 597 n.3 (Sth Cir.), cert. denied,

454 U.S. 1037 (1981); United States v. Papia, 560 F.2d 827,

836 n.3 (7th Cir. 1977); Ottomano v. United States, 468

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

(1973). See also Pet. App. 18a n.21. These cases are correct.

First, we see no reason to assume that the Confrontation

Clause requires proof of the declarant’s unavailability

before co-conspirator statements are admitted. The only

support for this proposition is dictum taken wholly out of

context from Ohio v. Roberts, 448 U.S. at 65. As noted,

however, Roberts also made clear that a “demonstration of

unavailability, however, is not always required” (id. at 65

n.7). Indeed, the Federal Rules of Evidence promulgated by

this Court contain no fewer than 23 specific types of hearsay

that are admissible “even though the declarant is available

as a witness” (Fed. R. Evid. 803). By contrast, there are only

four types of hearsay—including the type at issue in

Roberts and Dutton v. Evans, 400 U.S. 74 (1970) (former

testimony)—where unavailability is required (Rule 804).

The exceptions to the hearsay rule in Fed. R. Evid. 803 and

804 embody the thinking and experience of generations of

judges, legislators, scholars, and practitioners and are based

on considerations quite similar, if not identical, to those

that would inform any Confrontation Clause inquiry. If the

Confrontation Clause is not violated by the 23 specific

11

hearsay exceptions in Rule 803, then it is hard to see why the

co-conspirator exemption, which likewise does not require

proof of unavailability, is not constitutional as well. Con-

versely, if proof of a declarant’s unavailability is a general

prerequisite for admission of hearsay, then most of the

federal hearsay rule is unconstitutional.

For similar reasons, we do not think that co-conspirator

statements must meet a separate test of reliability. As Ohio

v. Roberts, 448 U.S. at 66 observed, statements falling

within time-honored exceptions to or exemptions from the

hearsay rule are presumptively reliable enough for admis-

sion. Nothing would be gained by reexamining these excep-

tions under the rubric of the Confrontation Clause. Merely

invoking the name of the Confrontation Clause would not

produce any new insights on these old questions. And the

suggestion that the reliability of statements must be judged

on a case-by-case basis, using a complex multi-factor test,

with de novo appellate review of the issue of reliability,

would make a shambles of trial proceedings.

It is true that some courts of appeals, including the court

below, have stated that just such a case-by-case analysis is

required to determine whether the co-conspirator-declarant

is unavailable and, if so, whether his statements are reliable.

See, e.g., United States v. Inadi, No. 83-1882 (3d Cir. Nov.

13, 1984); United States v. Ordonez, 737 F.2d 793 (9th Cir.

1983): United States v. Ammar, 714 F.2d 238, 254-257 (3d

Cir. 1983), cert. denied, No. 83-319 (Oct. 31, 1983); United

States v. Wright, 588 F.2d 31, 37-38 (2d Cir. 1978), cert.

denied, 440 U.S. 917 (1979); United States v. Kelley, 526

F.2d 615, 620-621 (8th Cir. 1975), cert. denied, 424 U.S. 971

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

1975), cert. denied, 423 U.S. 1090 (1976). These cases raise

an important question on which review by this Court may

eventually be warranted, but this case is not an appropriate

12

vehicle to resolve any conflict on this issue due to petition-

er’s failure to make a timely Confrontation Clause

objection.°®

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

VINCENT L. GAMBALE

Attorney

NOVEMBER 1984

‘This case is especially unsuitable for resolution of the conflict

because it comes from one of the circuits that has taken a position

favorable to the defendant on this issue, but nevertheless found it

inappropriate to reverse here. Those circuits that require a separate

Confrontation Clause inquiry generally judge reliability based on four

factors derived from Dutton v. Evans, 400 U.S. at 88-89. They are

(United States v. Ammar, 714 F.2d at 256, quoting United States v.

Perez, 658 F.2d 654, 661 (9th Cir. 1981)):

(1) [W]hether the declaration contained assertions of past fact; (2)

whether the declarant had personal knowledge of the identity and

role of the participants in the crime; (3) whether it was possible

that the declarant was relying upon faulty recollection; and (4)

whether the circumstances under which the statements were made

provided reason to believe that the declarant had misrepresented

the defendant's involvement in the crime.

We note that Quintiliano’s statements met this test. For the most

part, the statements related to ongoing or future drug-related activities,

and there was no real question that Quintiliano knew petitioner, having

met with him and telephoned him. In addition, the evidence showed

that Quintiliano’s statements were uttered spontaneously and were

clearly contrary to his own penal i:erests. Thus, it is no surprise that

“all the members of the [court of appea's"] majority [were] in agreement

that the [Ohio v.] Roberts reliability requirement, if preserved for

appeal, was satisfied in this case” (Pet. App. 18a n.21).

DOJ-1984-11