Before ALDISERT, Chief Judge, and HIGGINBOTHAM and SLOVITER, Circuit Judges.
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
Defendant Fiore Caputo (also known as "Curly") appeals from his conviction of conspiracy to distribute methamphetamine. Once again this court must determine whether the out-of-court statements of an alleged coconspirator were properly admitted under Fed.R.Evid. 801(d)(2)(E) and the sixth amendment. Because the government failed to produce the coconspirator-declarant to testify in court, and did not meet its concomitant burden of showing that he was unavailable to testify, we will reverse the judgment of the district court.
In an indictment handed down on April 21, 1982, Fiore Caputo was charged with conspiracy to distribute methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 846 (1982). James DiPasquale, Anthony Canale, and Thomas Cook were indicted as coconspirators, and on several related substantive charges. DiPasquale and Canale pleaded guilty to all counts against them. Caputo and Cook went to trial in July of 1982. That proceeding ended with a hung jury. They were retried and convicted on September 3, 1982.
The government's case against Caputo featured, among other evidence, the testimony of Anthony Canale, who testified pursuant to a plea bargain, John Bocella, a drug-user and dealer who was cooperating with law enforcement authorities, and Detective Timothy Woodward, an undercover officer with the Montgomery County District Attorney's office. A recorded phone conversation between Woodward and DiPasquale, that implicated Caputo, was also introduced.
Briefly summarized, the evidence at trial, viewed in the light most favorable to the government, showed the following: AT some time in the fall of 1981, Anthony Canale met Caputo at a bar to discuss renting an apartment in a building owned by Caputo's mother. Canale brought along a friend of his, James DiPasquale. After the rent for the apartment was negotiated, the conversation turned to the subject of methamphetamine. DiPasquale told Caputo, according to Canale's testimony, that he had a connection for methamphetamine, that that was what he was "into", and that there was "money in it".
On December 11, 1981, Bocella -- who owed DiPasquale $2400 and who was receiving threats of bodily harm from DiPasquale if he did not repay -- approached Detective Woodward about cooperating with drug enforcement authorities in an investigation of DiPasquale. Bocella brought Woodward (who used the name "Anthony") to the King of Prussia Plaza Shopping Mall, where they met DiPasquale and Canale (who served as DiPasquale's driver). Woodward gave DiPasquale $1800 for one-and-a-half ounces of methamphetamine, and $600 in partial payment of Bocella's debt. On December 14, 1981, DiPasquale told Caputo that he needed money in order to obtain methamphetamine for another transaction. Caputo arranged for his mother to lend DiPasquale $700. On December 16th Canale and DiPasquale met Bocella and Woodward at a Horn & Hardart restaurant in the Bala Cynwyd Shopping Center. Woodward gave DiPasquale over $2800 in exchange for three-and-a-half ounces of methamphetamine. Canale and DiPasquale split the money with Caputo.
Sometime in late December, Caputo and Canale went to the Howard Johnson's on City Line Avenue in Philadelphia to meet Bocella. Bocella had not been sure how much money he would be able to bring, and Canale and Caputo did not bring any methamphetamine. The three went to the basement of Caputo's apartment building where they weighted out a quantity of methamphetamine which was sold to Bocella for $1000.
Canale testified that on January 8, 1982, he obtained an ounce of methamphetamine from Caputo "on consignment". On the 9th he sold this ounce to Woodward in a van parked at a McDonald's in West Conshohocken. Woodward testified that he gave Canale $1700 for the methamphetamine and $200 in payment on Bocella's debt to DiPasquale.The following day, Bocella paid Caputo for the methamphetamine he had taken on cosignment.
On January 14, 1982, Detective Woodward telephoned Canale to arrange another purchase of methamphetamine. Canale told him that DiPasquale and Caputo were attempting to obtain a quantity of the substance. Woodward also spoke directly with DiPasquale by telephone in an attempt to purchase four ounces. No transaction took place that day, since neither DiPasquale nor Caputo was able to obtain methamphetamine.
On January 17, Canale obtained two ounces of methamphetamine from Caputo. Canale added two ounces of Vitamin C crystals to the substance and the following day sold it to Woodward for $3200. Canale gave Caputo $1600 from the proceeds of this sale. On February 6th Canale obtained another ounce from Caputo to sell to Woodward. Caputo was reluctant, because DiPasquale had been arrested the previous day and Caputo suspected that Woodward was responsible. Canale was arrested when he went to make the sale. It was not until March 30, 1982 that Drug Enforcement Agency agents determined that Caputo was the "Curly" whose name had surfaced repeatedly during their joint investigation with the Montgomery County District Attorney.
The evidence against Caputo included a number of out-of-court statements by DiPasquale that were admitted as "coconspirator admissions" under Fed.R.Evid. 801 (d)(2)(E). With regard to the December 16, 1981 transaction at the Horn & Hardart Restaurant, Canale, Bocella, and Woodward each testified that, as they were leaving, DiPasquale said something about bringing some soup back for "Curly", who was not feeling well. According to Bocella, DiPasquale said, "we'd better go because Curly was waiting." Woodward testified that DiPasquale "also stated that he, at one time, went to get $700 from Curly -- had to go to Curly's employer to get the money and it was Curly's money." In a phone conversation between DiPasquale and Woodward recorded on January 14, 1982, and played for the jury, DiPasquale twice refers to his "partner Curly". Finally, Woodward and Bocella testified to meeting DiPasquale at a restaurant in Willow Grove on January 29, 1982. According to Woodward, after dinner DiPasquale said "he was expecting a call from Curly concerning a quantity of methamphetamine, and Curly would be calling him at approximately 11 p.m." The three then went to the basement of DiPasquale's home, where he received a phone call from someone he identified, according to Bocella and Woodward, as Curly. Woodward testified that after DiPasquale hung up the phone, "he said he had to call Curly back in a little while to ascertain when the methamphetamine would be coming."
In this appeal Caputo contends that the out-of-court statements of DiPasquale were admitted into evidence in violation of the sixth amendment's Confrontation Clause, because DiPasquale, who did not testify in court, was not shown to be "unavailable" to testify.*fn1 Before reaching the Confrontation Clause claim, we must first consider the threshold question of whether, under our decision in United States v. Gibbs, 739 F.2d 838 (3d Cir.1984) (in banc), cert. denied, 469 U.S. 1106, 105 S. Ct. 779, 83 L. Ed. 2d 774 (1985), Caputo has adequately preserved this objection for appeal.
At an in-chambers conference held prior to the beginning of the trial, counsel for Caputo made the following objections:
They deal with the admissibility of certain hearsay statements made by Mr. DiPasquale about my client. I would like to preliminarily object to them, and I do so now asking your Honor to, by hindsight recall the testimony of the last time under Trowery you allowed that to go to the jury. I would like to do so on three grounds.
Secondly, I do so upon the confrontation clause which gives my client the right to be confronted by witnesses against him being Mr. DiPasquale. Mr. DiPasquale did not testify at the last ...