Petition for Writ of Certiorari — Patel v. United States

No. | aie

69-922 [L__

In The

Supreme Court of the United States

October Term, !989

MANU PATEL,

Petitioner

VS.

UNITED STATES OF AMERICA,

Respondent

Petition For A Writ Of Certiorari

To The United States Court Of Appeals, Seventh Circuit

Josette Skelnik

Robinson & Skelnik

167 East Chicago Street

Elgin, Illinois 60120

(312) 742-5220

Counsel For Petitioner

QUESTIONS PRESENTED FOR REVIEW

I. Are the statements of an unarrested defendant made

"during the course of" a conspiracy so as to be admissible

as cO-conspirator’s statements against the defendant, where

the statements are made after the defendant has been

arrested and after the controlled substances which were the

object of the conspiracy charged have been seized by and

are under the control of the government?

1]. Are statements made by an unavailable declarant

to a defendant who is cooperating with the government

admissible against the cooperating defendant himself as co-

conspirator’s statements, where the statements are made in

the course of conversations between the defendant and the

declarant which were initiated by the defendant at the

express request and direction of government agents?

TABLF OF CONTENTS

Page

QUESTIONS PRESENTED ..........006:. i

TABLE OF AUTHORITIES ...........-- iv

OPINION BELOW 2. siccsccicucssaaees 1

JURIST 00 icc ecesscenw ee unaes 2

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED ........e06:. 3

STATEMENT OF THE CASE ............ 4

REASONS FOR GRANTING THE WRIT ... 10

ih

THIS COURT SHOULD RESOLVE THE

ISSUE OF WHETHER STATEMENTS OF

AN UNARRESTED CONSPIRATOR, MADE

AFTER THE OBJECTIVES OF THE

CONSPIRACY CHARGED HAVE ENDED

IN FRUSTRATION OR DEFEAT, ARE

INADMISSIBLE AGAINST NON-

DECLARANTS UNDER FEDERAL RULE

OF EVIDENCE 801(d) (2)(E), ON THE

BASIS THAT SUCH STATEMENTS ARE

NOT MADE "DURING THE COURSE OF"

THE CONSPIRACY ...:::s05eeee 10

II.

THE SEVENTH CIRCUIT’S DETERMINA-

TION THAT A DEFENDANT WHO iS

ASSISTING THE GOVERNMENT MAY

PRECLUDE THE USE AGAINST HIM OF

OUT-OF-COURT, PRESUMPTIVELY

UNRELIABLE STATEMENTS OF A CO-

DEFENDANT ONLY BY CONFESSING HIS

OWN GUILT VIOLATES FUNDAMENTAL

PRECEPTS OF OUR SYSTEM OF

JUSTICE, AND EXPANDS THE LIMITS OF

THE CO-CONSPIRATOR EXCEPTION TO

THE HEARSAY RULE BEYOND

CONSTITUTIONALLY PERMISSIBLE

GDA 6 6 5 5 666 8 Ok ve 16

ee 21

OPINION OF THE COURT OF APPEALS

FOR THE SEVENTH CIRCUIT ‘or ta Get ae ee Appendix A

ORDER OF THE COURT OF APPEALS

DENYING REHEARING Re ee ee ee Appendix B

AMENDED ORDER OF THE COURT

OF APPEALS DENYING REHEARING e+ + + Appendix C

(iii)

TABLE OF AUTHORITIES

Anderson v. United States, 417 U.S. 211 (1974) .

Bourjaily v. United States, US. :

Br Wa BP ak 4 6 40d eee «cnt

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

Krulewitch v. United States, 336 U.S. 440 (1949) .

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

Simmons v. United States, 390 U.S. 377 (1968) .

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

cert. denied sub. nom Stillman v. United

Staten, 464 UD. SoG CIMRS) kas iii inns

United States v. Burnett, 582 F.2d 436

Ce, | errs eee er ee

United States v. Guerro, 693 F.2d 10

(Rat Cig. EOIE). & as clk sc bn win eww ie eee

United States v. Hamilton, 682 F.2d 1262

(6th Cir. 1982) cert. denied 459

ULB. 2007 CERRED <0 cs:0cewbeeseenes nw’

United States v. Harris, 542 F.2d 1283

(Te: Car. IGT) 66 Via iwc WER ES Cee See's

United States v. Jiminez, 622 F.2d 753

(Ses CR IE 85 oa EA a

United States v. Killian, 524 F.2d 1268

(Sth Cir. 1975), cert. denied

425 US. SSS (UGFB) no nec nctncswcens

United States v. Meacham, 626 F.2d 503

(Sth Cir. 1980), cert. denied

459 US. 10600 (IBGE) oc wc cc scccncssass

Pages

50

17, 20

11, 19

11, 14

13

13

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

i Oa wl

United States v. Patel, 879 F.2d 292

ee ee wa Sa kw bee ue cea 16, 18

United States v. United States Gypsum Co.,

438 U.S. 432 (1978)

(v)

ee ae ee Pe

No.

In The

Supreme Court of the United States

October Term, 1989

MANU PATEL,

Petitioner

VS.

UNITED STATES OF AMERICA,

Respondent

Petition For A Writ Of Certiorari

To The United States Court Of Appeals, Seventh Circuit

The petitioner, MANU PATEL, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Seventh Circuit, entered in the above-entitled proceeding

on July 20, 1989.

OPINION BELOW

The opinion of the Court of Appeals for the Seventh

Circuit is reported at 879 F.2d 292 and is reproduced in

Appendix A, infra.

(1)

JURISDICTION

The petitioner was charged by indictment in the District

Court, Northern District of Illinois, Eastern Division, with

the offenses of conspiring to import, importing, and

possessing with intent to distribute 2,743 pounds of a

mixture containing hashish in violation of 18 U.S.C. Sec.

1952 and 21 U.S.C. Secs. 841(a)(1), 843(b), 846, 952, and

963. Following a jury trial, the petitioner was convicted of

each offense and on August 26, 1988 was sentenced by the

trial court, under the U.S. Sentencing Guidelines, to a term

of 17-1/2 years imprisonment and a $20,000 fine. Notice of

appeal was timely filed pursuant to 28 U.S.C. Sec. 1291 and

F.R.A.P. 4(b). On July 20, 1989 the United States Court

of Appeals, Seventh Circuit, issued a decision affirming the

petitioner’s convictions and sentence. The petitioner’s

petition for rehearing was denied on August 29, 1989, and

an amended order denying rehearing was entered on

September 6, 1989. Copies of the order and amended

order denying rehearing are reproduced in Appendix B and

Appendix C, infra, respectively.

Jurisdiction to review the judgment of the Seventh Circuit

Court of Appeals is conferred on this Court by 28 U.S.C.

Sec. 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

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

(d) Statements which are mot hearsay. A statement is

not hearsay if - -

* * *

(2) Admission by party-opponent. The statement

is offered against a party and is...

(E) a statement by a co-conspirator of a party

during the course of and in furtherance of

the conspiracy.

United States Constitution:

AMENDMENT V.

No person . . . shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law. . .

AMENDMENT VI.

In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him .

(3)

STATEMENT OF THE CASE

The petitioner, Manu Patel, was charged by indictment

with the offenses of conspiring to import, importing, and

possessing with intent to distribute hashish in violation of

18 U.S.C. Sec. 1952, and 21 U.S.C. Secs. 841(a}(1), 843(b),

846, 952, and 963. He was found guilty of the offenses

charged after a jury trial before the Honorable Charles P.

Kocoras, Northern District of Illinois, Eastern Division and

on August 26, 1988, was sentenced by Judge Kocoras,

under the U.S. Sentencing Guidelines, to a term of 17-i/2

years imprisonment and a $20,000 fine.

Manu Patel was the consignee of a shipment of 67

crates exported from India to the United States in January

of 1988. According to the customs documents, the crates

were to contain wooden furniture and handicrafts. In fact,

17 of the crates contained hashish, either alone or mixed in

with jewelry boxes and other items. The shipment at issue

had been sent to the States by Navin Sheth, an individual

with whom Patel had conducted business in the past and

who in the course of the previous year had sent two

shipments of spices to Patel. On those past two occasions,

once the shipments had arrived, Sheth himself came into

the States and supervised the distribution of the spices. No

controlled substances were ever found in these spice

shipments, although they had been subject to intensive

examinations by customs agents.

With respect to the shipment delivered in January of

1988, customs agents were directed to conduct an intensive

examination of that shipment as well. Upon opening one

(4)

crate at random, U.S. customs inspector Richard

Drummond discovered not furniture and handicrafts, but

blocks of hashish. The crate was resealed and a decision

was made to effect a controlled delivery of the shipment to

the petitioner, who was then kept under 24-hour

surveillance by Drug Enforcement Agency (DEA) agents

from the date of the delivery of the shipment to him on

January 28, 1988, until the date of his arrest three days

later. During that three-day time period, DEA agents

observed no unusual conduct on the part of the petitioner.

Patel was arrested on February 1, 1988 and the entire

shipment was seized and placed in the custody of the

federal government. At the time of the petitioner’s arrest,

none of the crates had yet been opened by him. When

informed by DEA agent Scott Ando that the shipment he

had received from Sheth contained hashish, Patel expressed

surprise and indicated his willingness to assist the

government in whatever way possible. In addition to giving

the government access to the entire shipment, the

petitioner also consented to a search of his home,

conducted that same day. In the course of this search,

agents seized numerous documents relating to Patel’s

business dealings with Sheth. However, no drugs

whatsoever were discovered in the home.

Following the search of his home, Patel agreed to assist

the government in identifying and apprehending members

of the conspiracy at issue and, to that end, agreed to make

a tape-recorded telephone call to Navin Sheth in India.

DEA agent Ando insisted that during this conversation,

Patel had to use the word "hashish" so that the agents

could verify that Sheth had knowledge of the contents of

the shipment. Patel expressed concern that using the word

(5)

hashish would make Sheth suspicious, since he, Patel, had

no knowledge of the presence of the hashish. Nevertheless,

Ando rebuffed Patel’s suggestion that he simply tell Sheth

the shipment had arrived and was in storage, which would

then allow the agents to await Sheth’s usual arrival in the

States shortly thereafter, and instead contrived a story for

Patel to provide to Sheth to explain how Patel had become

aware of the presence of the hashish. Thus, Ando directed

Patel to tell Sheth that while movers were helping him

transport the crates into a storage facility, one mover had

dropped a crate, which then broke open. Patel was then

to tell Sheth that the move had noticed the plastic

containers of hashish and was concerned because he had

been told the shipment contained furniture.

The agreed-upon telephone call was placed to Sheth at

6:00 p.m. on February 1. In addition to tape-recording the

conversation, the government, with Patel’s knowledge and

consent, had an individual who understood the Indian

language listen in on it. In the course of this conversation,

after Patel told Sheth the story provided to him by agent

Ando, Sheth made a number of statements incriminating

Patel, suggesting that Patel knew of the true contents of the

shipment and that the two men had discussed the

importation scheme previously.

After this conversation took place, the petitioner, at the

government’s request, made a number of additional tape

recordings from his home of telephone conversations

between him, Sheth, and other individuals, which he turned

over to the government. In the course of the February 1

telephone conversation with Patel, Sheth had told him that

he would be receiving a telephone call on Tuesday,

February 2, from an individual identifying himself as “John.”

(6)

No telephone call materialized on that day. Several days

later, however, Patel did receive a telephone call from such

an individual and, at the government’s direction, made

arrangements with this individual to deliver a portion of the

shipment of hashish to him. Patel also agreed to wear a

body wire to his meetings with this individual and his

conversations with the individual were tape-recorded

through this wire. As a result of the petitioner’s work for

the government, four individuals -- Peter Guinan (the

individual identifying himself as John); Patrick Montisci;

John Johnson; and Thomas Whitebean --were arrested on

February 8, 1988 and charged with conspiracy and various

other offenses. Sheth remained in India and was never

apprehended, although he was indicted along with the other

defendants.

Although Peter Guinan and Patrick Montisci testified at

the petitioner’s trial pursuant to the terms of a plea

agreement reached with the government, neither they nor

Johnson and Whitebean knew Patel, had ever seen him

before, or had ever heard his name mentioned previously.

Each of these four individuals subsequently pleaded guilty

to the charge of conspiracy pursuant to agreements with

the government. In accordance with the terms of these

agreements, the government moved in each case for a

departure from the sentencing guidelines pursuant to

Guideline 5K1.1, which allows a departure, on motion of

the government, from the sentence range set by the

guidelines where a defendant has substantially assisted the

prosecution in the investigation or prosecution of another

person who has committed an offense. As a consequence,

these defendants received sentences recommended by the

government which ranged from 2-1/2 years to 5 years,

sentences which were substantially lower than those they

(7)

ii |

faced under the guidelines.’ The government refused to

similarly move for a departure from the guidelines at

Patel’s sentencing hearing.

Prior to trial, the petitioner filed a motion seeking to

preclude at trial the use of the statements made to him by

Navin Sheth during and subsequent to the February 1

telephone call placed at the request of the government.

The petitioner asserted that these statements did not

qualify as-co-conspirator’s statements under Federal Ruie

of Evidence 801(d)(2)(E) because, by the time of the first

call on February 1, the conspiracy in question had

terminated and, in addition, Patel could not be considered

a member of the conspiracy at that time because he was

working for the government. The district court denied the

motion and the statements of Sheth constituted key

evidence admitted against the petitioner at trial.

The petitioner filed a direct appeal from his convictions

and sentence to the Seventh Cicuit Court of Appeals

pursuant to 28 U.S.C. Sec. 1291 and F.R.A.P. 4(b). On

appeal before the Seventh Circuit, the petitioner again

contended that the statements of Sheth were inadmissible

as CO-conspirator’s statements and, in addition, that their

admission at tria! denied the petitioner his Sixth

Amendment right of confrontation.

In affirming the petitioner’s conviction, the Seventh

Circuit did not address his contention that by the time of |

the first telephone conversation with Navin Sheth, the

! Under the guidelines, for example, Peter Guinan faced a

minimum sentence of 14 years imprisonment. Pursuant to the terms

of the plea agreement with the government, he received a sentence of

5 years imprisonment.

(8)

EP ee Oe eens Fe ee ee ya i

conspiracy charged had terminated. With respect to the

issue Of whether Patel could be considered a member of

the conspiracy at that time, the Court determined that

there were only two methods whereby an individual could

withdraw from a conspiracy, thereby rendering statements

made by others subsequent to his withdrawal inadmissible

as co-conspirator statements: by communicating

abandonment of the conspiracy to unarrested conspirators;

or by making a clean breast to authorities. | While

acknowledging that advising the unarrested conspirators of

the abandonment of the conspiracy was not a viable

alternative in the case at bar, since Patel was working with

the government to deceive the others into believing the

conspiracy was ongoing, the Court nevertheless found that

the petitioner was still responsible for statements made by

unarrested conspirators because he had not confessed to

the authorities. Accordingly, the Court reasoned, Sheth’s

statements were properly admitted against the petitioner

under the co-conspirator exception to the hearsay rule.

The petitioner’s petition for rehearing was denied by the

Seventh Circuit in an order entered August 29, 1989, and

an amended order denying rehearing was entered on

September 6, 1989.

(9)

REASONS FOR GRANTING THE WRIT

I.

THIS COURT SHOULD RESOLVE THE

ISSUE OF WHETHER STATEMENTS OF AN

UNARRESTED CONSPIRATOR, MADE

AFTER THE OBJECTIVES OF THE

CONSPIRACY CHARGED HAVE ENDED IN

FRUSTRATION OR _ DEFEAT, ARE

INADMISSIBLE AGAINST NON-

DECLARANTS UNDER FEDERAL RULE OF

EVIDENCE 801(d)(2)(E), ON THE BASIS

THAT SUCH STATEMENTS ARE NOT MADE

"DURING THE COURSE OF" THE

CONSPIRACY.

In the case at bar, the petitioner, along with five other

individuals, was charged with conspiracy to import hashish

into this country from India. The petitioner was arrested

for this offense on February 1, 1988 and, at the same time,

the entire shipment at issue was seized and placed in the

custody of the federal government. Thereafter, acting at

the request and direction of the government, the petitioner

successfully deceived various unarrested conspirators into

believing that the goals of the conspiracy were still

attainable. As a result, the government was able to arrest

and successfully prosecute four others.

Although it is clear that with the petitioner’s arrest and

the seizure of the hashish at issue the objective of the

conspiracy charged had ended in defeat, the government

was nevertheless allowed to introduce against the petitioner

at trial statements made to him by an _ unarrested

(10)

conspirator subsequent to the petitioner’s arrest. In both

the district court and the Seventh Circuit Court of Appeals,

the petitioner contended that these statements were

inadmissible against him under Federal Rule of Evidence

801(d)(2)(E) because they were made after the conspiracy

charged had terminated. The district court perfunctorily

rejected this argument; the Seventh Circuit simply ignored

it. The action by both courts is inconsistent with long-

established precedent from this Court and with the bulk of

authority from other circuits.

This Court has consistently held that statements made

by an alleged co-conspirator after a conspiracy has

terminated are inadmissible against anyone but the

declarant. See, e.g., Krulewitch v. United States, 336 U.S.

440 (1949), Lutwak v. United States, 344 U.S. 604 (1953),

and Dutton v. Evans, 400 U.S. 74 (1970). Difficulties arise

in determining at precisely what point termination has been

established and, in this regard, this Court has addressed

only a few specific factual situations. Thus, in Krulewitch,

this Court held that statements made during the

concealment phase of a conspiracy were not made during

the course of and in furtherance of the conspiracy charged

and therefore were inadmissible as _ co-conspirator’s

statements in a federal court proceeding. This Court has

consistently followed that rule, notwithstanding the fact that

some states allow the use of such statements as co-

conspirator statements under their own rules of evidence.

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

Although the circuit courts which have addressed the

issue of when a conspiracy terminates have focused on the

particular facts of the case before them, in a majority of

the circuits a general rule has evolved that statements made

(11)

by unarrested conspirators after the arrest of other alleged

conspirators are admissible as co-conspirator’s statements

only if, at the time statements of the unarrested individuals

are made, continuation or effectuation of the conspiratorial

objective is still possible. See, e.g., United States v. Guerro,

693 F.2d 10 (1st Cir., 1982), (although defendant who

supplied controlled substances for distribution had been

arrested, statements made thereafter by an unarrested co-

conspirator were made in the course of the conspiracy, in

view of the fact that the defendant’s arrest was on

unrelated charges, that he expected to be released on bail,

and that he and other conspirators contemplated a

continuation of their drug-related activity); United States v.

Ammar, 714 F.2d 238, 253-54 (3rd Cir.), cert. denied sub.

nom Stillman v. United States, 464 U.S. 936 (1983),

(conspiracy to import and distribute heroin did not end

with the arrest of several conspirators where there was

affirmative evidence showing that the unarrested co-

conspirators continued to import and attempt to sell heroin;

court finds that defendants must show conspiracy has

terminated, "such as by demonstrating that its ends had

been so frustrated or its means so impaired that its

continuation was no longer plausible."); United States v.

Hamilton, 682 F.2d 1262 (6th Cir., 1982), cert. denied 459

U.S. 1117 (1983), (where co-conspirators, charged with

conspiring to engage in business of dealing in explosives

without a federal license, continued to order explosives,

continued to deal with unarrested co-conspirators who had

supplied them with explosives in the past, and continued to

make plans to collect money due them, statements they

made were admissible as co-conspirator’s statements despite

the fact that one of the parties who had supplied explosives

in the past was under arrest and cooperating with the

government), United States v. Papia, 560 F.2d 827 at 835

(12)

(7th Cir., 1977), (while effectuation of the conspiratorial

purpose had to be postponed while the "heat" was on, "the

evidence established that the conspiracy remained alive and

the defendants remained prepared-to strike when a safe

opportunity presented itself"); and United States v. Burnett,

582 F.2d 436 (8th Cir., 1976), (statement made by

defendant charged with using the telephone to facilitate

narcotics conspiracy was made in the course of the

conspiracy even though made to an _ unarrested co-

conspirator who was cooperating with the government, in

view of the fact that the defendant continued to distribute

narcotics even after the co-conspirator’s arrest and other

co-conspirators remained at large and might well be

continuing their wholesaling of drugs -- but see concurring

opinion, finding that conspiracy had terminated by the time

of the telephone call). The Fifth Circuit has referred to

the "general rule" existing in that circuit that "the arrest of

co-conspirators puts an end to the conspiracy." United

States v. Meacham, 626 F.2d 503 at 511, n.8 (Sth Cir.,

1980), cert. denied 459 U.S. 1040 (1982). See, also, United

States v. Killian, 524 F.2d 1268 (Sth Cir., 1975), cert. denied

425 U.S. 935 (1976), (statements made by an unarrested

defendant after two co-conspirators were arrested and the

controlled substance which was the subject of the

conspiracy charged had been seized by the government

were made after the termination of the conspiracy and

were inadmissible against the defendant’s co-conspirators).

In sum, the general rule, adopted by a majority of circuits

addressing the issue, is that a conspiracy terminates when

its objective has ended in frustration or defeat. Indeed, the

Advisory Committee’s note to Rule 801(d)(2)(E) comments

that the rule "is consistent with the position of the Supreme

Court in denying admissibility to statements made after the

objectives of the conspiracy have either failed or been

achieved."

(13)

Such a position was first adopted by this court in

Krulewitch v. United States. In that case, addressing the

issue Of whether a statement made by an alleged’ co-

conspirator of the defendant subsequent to the co-

conspirator’s and defendant’s arrest was admissible against

the defendant, Your Honors stated:

The statement plainly implied that petitioner

was guilty of the crime for which he was on

trial. It was made in petitioner’s absence and

the Government made no effort whatsoever to

show that it was made with his authority. The

testimony thus stands as an unsworn, out-of-

court declaration of petitioner’s guilt. This

hearsay declaration, attributed to a co-conspirator,

was not made pursuani io ana in furtherance of

the objectives of the conspiracy charged in the

indictment, because if made, it was made after

those objectives either had failed or had been

achieved. Uncer these circumstances, the

hearsay declaration attributed to the alleged co-

conspirator was not admissible on the theory

that it was in furtherance of the alleged

criminal transportation undertaking. 336 U.S.

at 442 (emphasis added).

In its brief before the Seventh Circuit, the government

relied on cases which hold that defendants may be found

guilty of conspiracy even if, because of circumstances

unknown to them, attainment of the conspiratorial objective

is unlikely or impossible. Based on those cases, it

contended that a conspiracy does not end simply because

its goals, theoretically attainable at the outset, have

subsequently ended in defeat. There are three basic flaws

in the application of this analysis to the case at bar.

(14)

First, the cases cited by the government deal only with

the issue of whether a defendant may be found guilty of

the offense of conspiracy where the conspiratorial objective

has not been, and is not likely to be, attained. Those cases

do not address the issue of when such a conspiracy

terminates for purposes of rule 801(d)(2)(E). The

petitioner has never contended that he could not be found

guilty of conspiracy because the objectives of the conspiracy

had ended in defeat, but is simply asserting that some limits

on the admissibility of statements against an accused by

unavailable declarants must be recognized.

Secondly, the government’s analysis ignores the fact that

in the case at bar, the unarrested conspirators continued to

work toward the conspiratorial objective only because the

petitioner, acting at the request and direction of the

government, successfully deceived them into believing that

objective was still attainable. Thus, unlike the situations

posited by the government, where conspirators continue to

work toward the conspiratorial objective regardless of the

government’s involvement, here the conspirators continued

to work toward the conspiratorial objective only because ot

the government’s, and the petitioner’s, involvement.

Finally, the government has never proposed what the

test should be for determining when a_ conspiracy

terminates. Surely, this Court never intended to adopt a

rule which would breathe life into a defunct conspiracy for

as long as the government, using arrested defendants as

artificial life-support, is able to convince any unarrested

conspirators that the conspiracy is still alive.

Nevertheless, in the case at bar, the Seventh Circuit

appears to have implicitly adopted a rule that a conspiracy

(15)

continues, for purposes of Rule 801(d)(2)(E), for as long as

any individual who can be considered a member of it

subjectively believes it is capable of success, regardless of

whether, in reality, its objectives have been defeated. (879

F.2d at 294-5) Accepting such a viewpoint would expand

the boundaries set by this Court in Krulewitch beyond

recognition and effectively obliterate any limits on the

admissibility of statements by out-of-court declarants under

Rule 801(d)(2)(E).

At the time Navin Sheth made the statements which

were introduced against the petitioner at trial, the

conspiracy charged in the indictment had terminated.

Certiorari should be granted to clarify the rules to be

applied in determining at what point a conspiracy has

terminated, and to avoid the use of an ever-expanding

definition of conspiracy which renders the limits imposed by

Rule 801(d)(2)(E) meaningless.

IT.

THE SEVENTH CIRCUIT’S

DETERMINATION THAT A DEFENDANT

WHO IS ASSISTING THE GOVERNMENT

MAY PRECLUDE THE USE AGAINST HIM

OF OUT-OF-COURT, PRESUMPTIVELY

UNRELIABLE STATEMENTS OF A CO-

DEFENDANT ONLY BY CONFESSING HIS

OWN GUILT VIOLATES FUNDAMENTAL

PRECEPTS OF OUR SYSTEM OF JUSTICE,

AND EXPANDS THE LIMITS OF THE CO-

CONSPIRATOR EXCEPTION TO THE

HEARSAY RULE BEYOND

CONSTITUTIONALLY PERMISSIBLE

BOUNDS.

(16)

The Seventh Circuit held in this case that a defendant

who maintains his innocence is liable, under Federal Rule

of Evidence 801(d)(2)(E), for statements made by others

who are members of a charged conspiracy, even though

those statements are made to the defendant himself while

he is cooperating with the government in an effort to

identify and apprehend members of the conspiracy. Absent

a confession of guilt, the Court held, the defendant is

deemed to be a member of the conspiracy charged until

the unarrested conspirators have been apprehended, and

cannot withdraw from the conspiracy by working for the

government and furthering its objectives. The Court’s

decision expands the limits of the co-conspirator exception

to the hearsay rule to a point never envisioned or approved

by this Court and penalizes a defendant, who has done

everything requested of him by the government and whose

assistance has resulted in the arrest and _ successful

prosecution of four other individuals, for asserting his

innocence. Because of the important constitutional

questions raised by this case, the petitioner asks that a writ

of certiorari be granted.

Despite the fact that this Court has recognized that co-

conspirator’s statements are presumptively unreliable -- See,

Bourjaily v. United States, US. , 107 S.Ct. 2775

at 2781 (1987) -- the Seventh Circuit began its analysis of

the instant case based on the premise that statements made

by Navin Sheth implicating the petitioner were true and

that Patel was caught in a trap of his own making. (879

.2d at 293) From that premise, the Court concluded that,

having joined a conspiracy, Patel could not withdraw trom

it, SO as to limit his liability for statements made by others,

simply by taking steps to defeat or disavow it or to bring

others to justice. Instead, the Court held, a defendant may

(17)

withdraw from a conspiracy in only two ways: by

communicating abandonment of the conspiracy to

unarrested conspirators; or by making a "clean breast" to

authorities. (879 F.2d at 294)?

The Court recognized that, since the government

wanted Patel to work with it to convince the unarrested

conspirators that the conspiracy was still ongoing, and since

Patel agreed to do so, withdrawing from the conspiracy by

announcing abandonment of it to the others was not an

option available to him. Therefore, in order to protect

himself from statements of unarrested conspirators made in

furtherance of a conspiracy which the Court itself admitted

was no longer capable of success at the time Sheth’s

statements were made (see 879 F.2d at 295), Patel had no

choice but to confess.

Thus, in order to protect himself from an evidentiary

rule allowing into evidence statements incriminating him

which were made by an _ unavailable declarant, the

petitioner was required to forego two constitutional rights:

his privilege against self-incrimination and his presumption

of innocence. Such a harsh, unrealistic, and unworkable

rule should not be sanctioned by this Court. Compare

Simmons v. United States, 390 U.S. 377 (1968), (requiring a

defendant to forego his Fifth Amendment privilege against

self-incrimination in order to assert a Fourth Amendment

claim creates an intolerable tension between the two

constitutional rights and demands application of a rule that

testimony given by a defendant in support of a motion to

suppress may not thereafter by admitted against him at

trial.) Moreover, application of such a rule is doubly

2 Death was mentioned briefly by the Court as a third possible

means of withdrawal, but thereafter discounted.

(18)

inappropriate in this case, where the government’s own

inept directions to the petitioner as to what to tell Sheth

likely aroused Sheth’s suspicions from the outset and gave

him reason to misrepresent Patel’s involvement in the

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

The Seventh Circuit found that its formulation as to the

test to be applied for withdrawal was "endorsed implicitly”

by this Court in United States v. United States Gypsum Co.,

438 US. 432 at 463-65 (1978). In fact, no such

endorsement can be gleaned from that decision. In

Gypsum, this Court found an instruction to the jury

regarding what acts constituted withdrawal from a

conspiracy to be reversible error because it limited the

jury’s consideration "to only two circumscribed and arguably

impractical methods of demonstrating withdrawal from the

conspiracy." Thus, in Gypsum, this Court, far from

determining that the test for withdrawal is contined to only

two possible methods, determined only that the trial court

in that case had not gone far enough in formulating the test

for the jury. Certainly, requiring a defendant to confess in

order to avoid incrimination by others establishes a method

of withdrawal which is not only circumscribed and

impractical in the extreme. but unconstitutional.

In adopting its formulation here, the Seventh Circuit.

without explanation or comment, repudiated the position

endorsed in its earlier decision of United States v. Hams.

542 F.2d 1283 (7th Cir., 1976) which found that termination

of membership in a conspiracy may be established. in

general, by showing that the individual took some

affirmative act to disavow the conspiracy or defeat its

purpose. 542 F.2d at 1301. See, also, United States v.

Jiminez, 622 F.2d 753 at 755 (Sth Cir., 1980), (finding that

(19)

Ce

the Gypsum case stands "at least for the proposition that

‘[w]ithdrawal from a conspiracy may be demonstrated in a

variety of ways.”). In light of the fact that the rationale for

admitting against a defendant statements made by an

alleged co-conspirator is the theory that each conspirator is

acting as an agent of the other -- See, Anderson v. United

States, 417 U.S. 211 at 218, n.6 (1974); United States v.

Ammar, 714 F.2d 238 at 255-56 (3rd Cir.), cert. denied sub.

nom Stillman v. United States, 464 U.S. 936 (1983); and

Bourjaily v. United States, US. , 107 S. Ct. 2775

at 2785-2788 (1987), (Blackmun, J., dissenting) -- the

Court’s formulation of the test in Harms made eminently

good sense: an unarrested conspirator cannot be said to be

speaking as an agent for an «arrested individual who is

cooperating with the government in an effort to identify )

and apprehend members of the conspiracy.

As applied in the case at bar, the Seventh Circuit’s

formulation of the test for withdrawal penalizes a defendant

who has indisputedly aided the government simply because

that defendant continues to assert his innocence. Certiorari

should be granted to address the issues raised by this case

as to the proper interpretation and scope of the co-

conspirator exception to the hearsay rule, and to correct

the Seventh Circuit’s interpretation of the rule in a manner

which offends an accused’s constitutional rights.

(20)

CONCLUSION

Wherefore, the petitioner, MANU PATEL, respectfully

requests that a writ of certiorari issue to the United States

Court of Appeals for the Seventh Circuit.

Respectfully submitted,

JOSETTE SKELNIK

Robinson & Skelnik

167 East Chicago Street

Elgin, Illinois 60120

(312) 742-5220

Counsel for Petitioner

(21)

APPENDIX A

In the United States Court of Appeals

For the Seventh Circuit

No. 88-2738

United States of America Plaintiff-Appellee

Versus

Manu Patel, Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

(July 20, 1989)

(Rehearing Denied August 29, 1989)

(Amended Order Denying Rehearing

Entered September 6, 1989)

Before POSNER and MANION, Circuit Judges, and

ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge:

A jury convicted Manu Patel of four counts of violating

federal narcotics law in connection with the importation

from India of a ton of hashish having a street value of at

least $4 million. The judge sentenced him to seventeen

years and six months in prison. The appeal raises a

number of issues but the only one that merits discussion is

whether Patel was still a member of the conspiracy to

(A-1)

import and distribute the hashish at the time his principal

co-conspirator, Sheth, made statements that were recorded

and later admitted into evidence against Patel; Sheth did

not testify.

Customs inspectors had discovered the hashish in a

shipment (purportedly of furniture and artifacts) from the

Apex Trading Agency of Bombay to Global! Impex, Inc.,

which had the same address as Patel’s home in Roselle,

Illinois. After the inspection, the shipment was allowed to

continue on its way, accompanied however by federal

agents. Its interim destination was a warehouse. When

Patel arrived with moving trucks to remove the shipment

from the warehouse, the agents arrested him and informed

him that the crates contained hashish. Patel exhibited

surprise, and claiming that he had nothing to hide agreed

to cooperate with the government. He told the agents that

he and Navin Sheth, a resident of India, were co-owners of

Apex Trading Agency, that this was the third shipment he

had received from Sheth, and that the previous ones had

consisted of spices and groceries. Patel volunteered that

Sheth was planning to phone him shortly from India with

instructions for the distribution of the latest shipment. He

added that after each of the first two shipments, Sheth had

come to Roselle to inspect the shipments, and together

with two other Indians, one named Raji, had carried away

parts of the shipments in a U-Haul truck before Patel

distributed the rest.

The agents wanted Patel to make recorded phone calls

to Sheth in which Patel would tell Sheth that a crate had

broken open during the unloading of the shipment and had

spilled hashish. The agents insisted that Patel use the word

"hashish" in the calls. The phone conversations, conducted

in an Indian dialect, were recorded, translated, and

(A-2)

transcribed, and the transcripts were introduced into

evidence at Patel’s trial, over his objection. In the first and

most important of the calls, after telling Sheth about the

spill of the hashish, Patel asked, "Who is going to call?"

Sheth was taken aback: "Didn't I tell you Tuesday

morning?" Patel played dumb: "Tuesday morning?

Somebody is going to call? ... You? Would you call?" "No,

I wouldn’t call. He will call you." "But, who is he?" To

which Sheth replied: "Why you have been told about it?

Why did you forget?" Patel: "Raj, Raj, Raj." Sheth:

"You are Raj Kumar." As the call continued, Sheth

became increasingly suspicious. He asked, "why are you

using that word?" (presumably "hashish"). He added, "You

know about all this to be not using them." In later calls,

Sheth, swallowing his suspicions, gave Patel directions for

the distribution of the hashish. As a result of the

information conveyed by Sheth in these calls, as weil as

information obtained in calls that Patel made at the

government’s direction to members of the ring in the US.,

the other members - all but Sheth - were arrested. Sheth

remained in India, and for reasons that no one has been

able to explain to us cannot be extradited to the U.S. to

stand trial for his part in the conspiracy.

The transcripts of the calls to Sheth exploded Patel’s

pretense of being an unknowing recipient of the hashish,

and although there was other evidence of his involvement

in the smuggling ring the government does not argue that

the admission of the transcripts, if error, was harmless.

The "theory" under which a co-conspirator’s out-of-court

statement is admissible is that each member of the

conspiracy is the agent of every other member, and an

agent’s admission binds his principal. See Fed. R. Evid.

801(d)(2)(E); Lutwak v. United States, 344 U.S. 604, 73

(A-3)

S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Ammar,

714 F.2d 238, 255-56 (3d Cir. 1983). The Advisory

Committee’s Note remarks the fictitious character of the

agency rationale but does not question the rule. Patel,

noting that the rule requires that the co-conspirator’s

statement be made "during the course and in furtherance

of the conspiracy," Fed. R. Evid. 801(d)(2)(E); see also

Krulewitch v. United States, 336 U.S. 440. 443, 69 S.Ct. 716,

718, 93 L.Ed. 709 (1949), argues that when he made the

calls to Sheth at the government’s behest, he had quit the

conspiracy, so Sheth was no longer his agent.

There is nothing in the rule about withdrawal, and of

course a conspiracy could continue, and statements be

made in the course and furtherance of it, after a particular

member had withdrawn. But then it would not be a co-

conspirator’s statement; it would be a former co-

conspirator’s statement. See United States v. Mardian, 546

F.2d 973, 978 n. 5 (D.C.Cir. 1976); United States v. Abou-

Saada, 785 F.2d 1, 8(1st Cir. 1986); cf United States v.

Smith, 578 F.2d 1227, 1233 (7th Cir. 1978). At all events,

the government does not argue the point, but instead

replies to Patel’s claim that he had withdrawn from the

conspiracy before the call by arguing that the only way to

quit a conspiracy is to confess involvement in it to the

government or to notify your fellow conspirators that you're

quitting. Pressed at argument, the government's counsel

reluctantly conceded that death might be a third way out,

but she would acknowledge no other modes of exit. Since

Patel did not die and since the government did not want

him to announce his withdrawal from the conspiracy to

Sheth and the other conspirators, the government’s position

is that the only way Patel could quit the conspiracy after

being arrested was by confessing.

(A-4)

As an original matter this conclusion might be

questioned. A conspiracy is an agreement, but it is an

agreement without formalities, and an agreement made

informally can be dissolved informally. The same applies

to the collateral agreement joining a particular individual to

the conspiracy. All that would be required for withdrawal,

one might think, would be proof that the individual was no

longer a party. Making a clean breast to the government

is one way of indicating that one has quit - although it is

not conclusive, for one might make a clean breast one day

and repent of it the next and resume participation in the

conspiracy. Notifying one’s co-conspirators that one has

quit is another way. Death is a third. One supposes there

could be others. Patel contends that while he did not

confess his involvement in the conspiracy, he certainly took

himself out of it by cooperating fully with the government;

that once he turned informant he was no longer a member

of the conspiracy; and that he did everything the

government wanted him to do to undermine the conspiracy

and bring its remaining members to justice.

This is not a bad argument. And the government may

be short-sighted to claim a right to use an informant’s

recorded calls in evidence against him: the existence of

such a right would increase the risk of turning informant,

and without informants the government’s efforts to stop the

drug traffic would be entirely futile. All this said, however,

we think the district court was correct to deny Patel’s

motion to exclude Sheth’s statements.

There are two points, one evidentiary and one

substantive. The evidentiary point is that the very absence

of formalities required for a conspiracy makes it more

difficult than in a formal contract to know when an

(A-5)

individual’s participation has ceased. A_ period of

quiescence cannot be equated with a clean break.

The substantive point is that having set in motion a

criminal scheme, a conspirator will not be permitted by the

law to limit his responsibility for its consequences by

ceasing, however definitively, to participate. Such cessation

may or may not be effective withdrawal in a lay sense, but

this is one of those places where the law uses a word in a

special sense. You do not absolve yourself of guilt of

bombing by walking away from the ticking bomb. And

similarly the law will not let you wash your hands of a

dangerous scheme that you have set in motion and that can

continue to operate and cause great harm without your

continued participation. The courts hold that for

withdrawal to limit a conspirator’s liability and (the novelty

of the present case) his exposure to statements by co-

conspirators, "mere cessation of activity is not enough ...:

there must also be affirmative action, either the making of

a clean breast to the authorities, or communication of the

abandonment in a manner calculated to reach co-

conspirators. And the burden of withdrawal lies on the

defendant." United States v. Borelli, 336 F.2d 376, 388 (2d

Cir.1964) (Friendly, J.) (citation omitted).

This formulation - endorsed implicitly in United States v.

United States Gypsum Co., 438 U.S. 422, 463-65, 98 S.Ct.

2864, 2886-88, 57 L.Ed. 2d 854 (1978), and explicitly in

many cases in this and other circuits, see, e.g., United States

v. Dorn, 561 F.2d 1252, 1256 (7th Cir.1977) (per curiam);

United States v. Andrus, 775 F.2d 825, 850 (7th Cir.1985) -

closes the door on Patel’s argument. See also United States

v. Juodakis, 834 F.2d 1099, 1102-03 (1st Cir. 1987). Patel

did not communicate his abandonment to any of his

(A-6)

co-conspirators and he did not make a clean breast to the

authorities. On the contrary, his efforts to exculpate

himself in his first call to Sheth aroused Sheth’s suspicious,

reducing the likelihood that Sheth would come to the

United States and be bagged with the rest of the

conspirators. And, judging by the tenor of the phone calls,

Sheth was the kingpin of the smuggling ring. Granted, the

government was maladroit in instructing Patel to use the

word "hashish." But this was not the only signal likely to

arouse Sheth’s suspicious, and the others were the initiative

of Patel, who may have been trying to warn Sheth while

obscuring his own complicity, and was certainly trying to do

the latter.

As pointed out in Borelli and Juodakis, at some point

after a conspirator’s active involvement in the conspiracy

ends it becomes unreasonable to hold him responsible for

the acts of the remaining conspirators. But that precept is

not applicable here. The statements made by Sheth that

incriminated Patel were made at the time when the scheme

for the importation and distribution of the shipment of

hashish was in medias res, and were in furtherance of the

conspiracy, see Garlington v. O’Leary, 879 F.2d 277, 282-285

(7th Cir. 1989), albeit the conspirators no longer had a

realistic prospect of success.

AFFIRMED.

(A-7)

APPENDIX B

United States Court Of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

August 29, 1989

Hon. Richard A. Posner, Circuit Judge

Hon. Daniel A. Manion, Circuit Judge

Hon. Jesse E. Eschbach, Senior Circuit Judge

United States of America ) Appeal from the

) United States District Court

Plaintiff-Appellee, ) for the

) Northern District of Illinois,

NO. 88-2738 -VS- ) Eastern Division.

)

MANU PATEL, ) No. 88 CR 80

)

Defendant-Appellant. ) Charles P. Kocoras, Judge.

ORDER

On Consideration of the petition for rehearing and

suggestion for rehearing in banc filed in the above-entitled

cause by Defendant-Appellant, no judge in active service

has requested a vote thereon, and all of the judges on the

original panel have voted to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for

rehearing be, and the same is hereby, DENIED.

(B-1)

7” , yout by ' j “)

7

« A 2 eet 4

A Katey Ce

rae Sen a

United States Court Of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

September 6, 1989

Hon. Richard A. Posner, Circuit Judge

Hon. Daniel A. Manion, Circuit Judge

Hon. Jesse E. Eschbach, Senior Circuit Judge

United States of America ) Appeal from the

) United States District Court

Plaintiff-Appeliee, ) for the

) Northern District of Illinois,

NO. 88-2738 -VS- ) Eastern Division.

)

MANU PATEL, ) No. 88 CR 80

)

Defendant-Appellant. ) Charles P. Kocoras, Judge.

AMENDED ORDER

The petition for rehearing complains about the failure

of the court to discuss every issue raised by the appeal.

When issues patently lack merit, the reviewing court is not

obliged to devote scarce judicial resources to a written

discussion of them. In the present case, the court, having

carefully considered each of the issues raised by the appeal,

confined its opinion to the sole issue having arguable merit.

Having studied the papers filed in connection with the

petition for rehearing, the court is satisfied that the

remaining issues indeed lack merit and do not require

discussion. The petition is therefore DENIED.

(C1)