showing of unavailability is essential to the introduction of out-of-court statements offered for a nonhearsay purpose.
Applying the foregoing principles to the out-of-court statements at issue in this case, I conclude that no Confrontation Clause violation has been shown. In an opinion delivered from the bench after the close of trial, I explained my reasons for finding that Mr. Maleno was guilty, and also explained the evidence on which I relied in reaching that finding. See Tr. 758-61 (July 15, 1983). The discussion in the bench opinion makes clear that the substantive evidence on which, as fact-finder, I relied chiefly consisted of the tapes of forty-four conversations in which Mr. Maleno was a participant. The bench opinion refers to the many conversations in which Mr. Maleno participated, id. at 758, and in which "the matter under discussion is the distribution of methamphetamine." Id. at 760.
The terms used in those conversations were not always self-defining. Phrases meaning one thing to a lay auditor may mean something very different when used among persons trafficking in methamphetamine. See id. at 769-777 (discussing, inter alia, specialized meaning given the terms "guys" -- used to refer to pieces of methamphetamine -- and "wetness" -- used to describe the condition of the drug). As a result, I relied in part on certain evidence extrinsic to the conversations themselves to interpret the terms used therein. In Mr. Maleno's case, the bench opinion expressly notes that the testimony of Agent Hershowitz was important in "giving content to conversations, a great many of which were . . . ambiguous to the lay auditor." Id. at 760. Agent Hershowitz was of course available for cross-examination at trial; the use of his testimony therefore raises no Confrontation Clause problems.
In addition to the testimony of Agent Hershowitz, I mentioned one other source of evidence for the meaning of ambiguous conversations: others of the taped conversations in which the ambiguous terms are more clearly used to refer to the business of methamphetamine distribution. Id. at 763-778. Often, these other conversations were used to clarify discussions involving different parties, so that roughly contemporaneous conversations involving A and B might be used to help clarify conversations between A and C. Moreover, it is undisputed that participants in some of the conversations were not subject to cross-examination at trial, since they were not called to testify. This is the basis for Mr. Maleno's claim under the Confrontation Clause.
At the outset, it is unclear whether any use was made as to Mr. Maleno of conversations in which Mr. Maleno did not participate. Mr. Maleno was tried together with four codefendants; the portions of my July 1983 bench opinion in which I expressly discuss my use of certain conversations against nonparticipants involve other defendants, not Mr. Maleno. Id. (explaining reasons for convictions of defendants Dominic Florio, Ralph Pultrone, and John DiSalvo). Mr. Maleno's Confrontation Clause claim is therefore necessarily difficult to pin down, because it rests not on a particular statement or set of statements but on the whole range of conversations in which he did not participate.
The bench opinion strongly suggests that none of the statements of which Mr. Maleno complains were used against him -- that, instead, the "great many" conversations in which he participated decisively proved his guilt. See id. at 758-61. I am not willing, however, to reject Mr. Maleno's claim on the ground that out-of-court conversations of unavailable individuals were not used against him. My bench opinion does not purport to discuss my use of every item of evidence introduced during the course of a long trial. Nor am I prepared, on the basis of memory, to assert with confidence what I did or did not consider in reaching a criminal verdict some nineteen months ago. Accordingly, it seems only prudent to assume for purposes of deciding Mr. Maleno's petition for a new trial that conversations of absent co-conspirators were indeed used against Mr. Maleno, for the same purposes as against the other defendants.
As I have already indicated, those purposes were limited. The bench opinion contains an extended discussion of the proper evidentiary use of conversations in which a given defendant did not participate against that defendant. Id. at 763-78. I summarized my use of such conversations as follows:
The evidentiary use I have made of the conversations in which the charged person was not a participant was a use which did not involve relying on the recitals in those other conversations for the truth of what was recited, and thus the hearsay objection which otherwise would be proper is in my judgment obviate[d]; that is to say, those conversations to which persons other than the defendant who was charged by the Government to be a conspirator, were looked to not for the truth of what was asserted to locate the defendant in the conspiracy, but to place in context and give clarification to the meaning to be assigned to otherwise ambiguous conversations that the charged defendant . . . was clearly a participant in.
Id. at 778. Statements of absent co-conspirators were, in short, used not for the truth of the assertions they contained but for the words and phrases they employed.
Such nonhearsay use of out-of-court statements does not violate the Confrontation Clause, regardless of the presence or absence of the out-of-court declarant. See Collins v. Francis, supra, 728 F.2d at 1336; United States v. Peaden, supra, 727 F.2d at 1500 & n.11. The statements' limited use necessarily renders cross-examination of the absent declarants unhelpful, since the tapes establish the choice of words, and since the truth of the words was not at issue.
The unavailability requirement which Inadi reaffirmed and applied to the co-conspirator context does not apply to situations such as this one. The Third Circuit's analysis depends upon the proposition that the "broad co-conspirator exception to the hearsay rule" creates a "tremendous evidentiary advantage" for the government, because it permits the introduction of vast quantities of hearsay without a clear demonstration that such evidence is reliable. See Inadi, supra, 748 F.2d at 818-19. The statements at issue in this case were used for the fact of their utterance and not for their truth, so that there was no prosecutorial "advantage" to be counterbalanced.
For these reasons, I find that Mr. Maleno has not shown a violation of the Confrontation Clause. The petition for a new trial will therefore be denied. An Order to that effect accompanies this Opinion.
For the reasons stated in the accompanying Opinion, it is hereby ORDERED that Mr. Maleno's petition for a new trial is DENIED.