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UNITED STATES v. MALENO

March 4, 1985

UNITED STATES OF AMERICA
v.
JOSEPH MALENO



The opinion of the court was delivered by: POLLAK

 Joseph Maleno has petitioned, pursuant to 28 U.S.C. § 2255, for a new trial. Mr. Maleno contends that his conviction was based in part on the out-of-court statements of co-conspirators who were not present at trial and who consequently could not be cross-examined. The government did not show at trial and has not shown since that all the authors of these statements were unavailable at the time of trial. Mr. Maleno contends that under the Third Circuit's recent decision in United States v. Inadi, 748 F.2d 812 (3d Cir. 1984), he must therefore receive a new trial. The government has responded to Mr. Maleno's petition.

 On February 8, 1983, Joseph Maleno and twelve other individuals were indicted for conspiracy to distribute methamphetamine and related crimes. Five months later, Maleno and four codefendants were tried before this court without a jury. In the course of a five-day trial, a large number of taped telephone conversations (and transcripts thereof) were introduced into evidence. Mr. Maleno took part in a number of these conversations; others involved either Mr. Maleno's codefendants, other individuals who were indicted but not on trial, or unindicted co-conspirators. At the conclusion of the trial, Joseph Maleno was convicted of one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846, twenty-one counts of unlawful use of a communication facility in violation of 21 U.S.C. § 843(b), and one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846, twenty-one counts of unlawful use of a communication facility in violation of 21 U.S.C. § 843(b), and one count of possession of methamphetamine with intent to deliver in violation of 21 U.S.C. § 841(a)(1). On September 1, 1983, Mr. Maleno was sentenced to (1) five years of incarceration for conspiracy, (2) four years of incarceration (consecutive to the incarceration imposed for the conspiracy conviction), two years of special parole, and a $10,000 fine for possession with intent to distribute, and (3) two years of probation (concurrent to the special parole) for unlawful use of a communication facility. Mr. Maleno appealed his conviction to the Court of Appeals for the Third Circuit, which affirmed the conviction. 738 F.2d 426. The Supreme Court denied certiorari on October 15, 1984. 469 U.S. 918, 105 S. Ct. 298, 83 L. Ed. 2d 232.

 On November 13, 1984, the Court of Appeals for the Third Circuit issued its opinion in United States v. Inadi, 748 F.2d 812 (3d Cir. 1984). In Inadi, the Court of Appeals held, inter alia, that out-of-court statements of co-conspirators may not, consistent with the Sixth Amendment's Confrontation Clause, be offered for their truth unless (1) the declarant is available for cross-examination at trial, or (2) the government has made a good-faith effort to obtain the declarant's presence at trial. 748 F.2d at 818-19.

 Mr. Maleno argues that Inadi compels the grant of a new trial in this case. In support of this argument, Mr. Maleno contends that tapes of a number of conversations to which he was not a party were admitted into evidence at trial, that some of these conversations involved persons who were not present at trial and whom the government made no effort to produce, and that the out-of-court statements of these absent individuals were inculpatory as to Mr. Maleno.

 The government responds with several arguments, *fn1" only one of which I need reach here. The government argues, correctly in my view, that because the out-of-court statements in question were not used for their truth, Inadi is inapplicable.

 I.

 The Sixth Amendment guarantees a criminal defendant "the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The guarantee is an important one, going directly to the "integrity of the fact-finding process." Berger v. California, 393 U.S. 314, 315, 21 L. Ed. 2d 508, 89 S. Ct. 540 (1969); Ohio v. Roberts, 448 U.S. 56, 64, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980). It ensures that one charged with a crime cannot be convicted by the accusatory words of those unwilling to testify in open court; at the same time, it serves to protect the public interest in open trials by forcing the government to put on its case where all may see it.

 Despite these noble purposes, the Confrontation Clause has never been thought to prohibit the use of every statement by a declarant not present at trial. Ohio v. Roberts, supra, 448 U.S. at 64-65; United States v. Ammar, 714 F.2d 238, 255 (3d Cir.), cert. denied, Stillman v. United States, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983). Instead, the policies in favor of requiring the opportunity for effective cross-examination have yielded on occasion to the "strong interest in effective law enforcement" which all jurisdictions share. Id. 448 U.S. at 64. The Supreme Court expressed the essence of the resulting compromise in Ohio v. Roberts :

 
The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant . . . .
 
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the fact-finding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason for the general rule.'

 This passage appears to require that, in order to introduce the out-of-court statements of a declarant absent from trial, the government must show both that the declarant is unavailable and that the declaration is trustworthy. If applicable, such a requirement could potentially lead to a new trial for petitioner, since the government did not claim at trial and does not claim now that all the speakers in the taped conversations introduced against Mr. Maleno were either present in court or unavailable.

 There are, however, at least two exceptions to the unavailability requirement which Roberts articulated in the passage just quoted and which Inadi applied to co-conspirator statements. The first of these derives from Dutton v. Evans, 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970), in which the Supreme Court permitted the admission of a co-conspirator hearsay statement even though (1) the declarant did not testify at trial and (2) the government made no showing of unavailability. Alex Evans, the defendant in Dutton, was convicted of the murder of three police officers who had discovered Evans and an accomplice, Venson Williams, switching the license plates on a stolen car. At trial, a Mr. Shaw testified that he heard Williams say in reference to the case, "If it hadn't been for that dirty son-of-a-bitch Alex Evans, we wouldn't be in this now." Dutton v. Evans, supra, 400 U.S. at 77 (quoting Shaw's testimony). Williams was not called to testify. A plurality of the Supreme Court found no violation of Evans' Sixth Amendment right to confront the witnesses against him, reasoning that there was no real possibility that cross-examination of Williams would have shown the statement to be unreliable. Id. at 89. In Roberts, the Court described Dutton as a case in ...


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