UNITED STATES OF AMERICA, PETITIONER V. JOSEPH INADI No. 84-1580 In the Supreme Court of the United States OCTOBER TERM, 1984 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT TABLE OF CONTENTS Opinions below Jurisdiction Constitutional provision and rule involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-16a) is reported at 748 F.2d 812. The order amending that opinion (App., infra, 17a-19a) is not yet reported. JURISDICTION The judgment of the court of appeals was entered on November 13, 1984. The order denying rehearing was entered on February 8, 1985 (App., infra, 20a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION AND RULE INVOLVED The Sixth Amendment provides in pertinent part: In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *. Rule 801(d) of the Federal Rules of Evidence provides in pertinent part: A statement is not hearsay if * * * * (2) * * * The statement is offered against a party and is * * *, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. QUESTIONS PRESENTED 1. Whether the Confrontation Clause bars the prosecution from introducing statements falling within the co-conspirator exception to the hearsay rule (Fed. R. Evid. 801(d)(2)(E)) unless the prosecution establishes that the declarant is unavailable to testify at trial. 2. Whether, if the court of appeals was correct that proof of unavailability is required, it should have ordered a remand hearing to determine the question of unavailability rather than ordering a new trial. STATEMENT After a jury trial in the United States District Court for the Eastern District of Pennsylvania, respondent was convicted on one count of conspiring to manufacture and distribute methamphetamine, in violation of 21 U.S.C. 846; two counts of using a telephone to facilitate a drug felony, in violation of 21 U.S.C. 843(b); one count of causing interstate travel to facilitate a drug felony, in violation of 18 U.S.C. 1952(a)(3); and one count of distributing methamphetamine, in violation of 21 U.S.C. 841(a)(1). He was sentenced to three years' imprisonment to be followed by a seven-year special parole term. The court of appeals reversed (App., infra, 1a-16a). 1. The evidence at trial is summarized in the opinion of the court of appeals (App., infra, 2a-5a). It showed that in September 1979 unindicted co-conspirator Michael Mckeon approached respondent seeking a distribution "outlet" for methamphetamine. The two men agreed that respondent would supply cash and chemicals for the manufacture of methamphetamine and would also be responsible for distribution, while Mckeon and co-conspirator William Levan would actually manufacture the drug (id. at 2a). Mckeon and Levan made three attempts to manufacture methamphetamine in Philadelphia between December 1979 and April 1980. The first "cook" was successful, producing three pounds of methamphetamine, which Mckeon delivered to respondent. Mckeon, Levan, and respondent shared a profit of $19,500 on that transaction. The second "cook" failed to produce methamphetamine because a necessary ingredient supplied by respondent turned out to be some other substance. A third "cook" succeeded in producing three and one-half pounds of methamphetamine, which Levan delivered to respondent (App., infra, 3a). Sometime around May 1980, Mckeon went to Cape May, New Jersey, with the liquid residue from the third "cook". He met respondent, Levan, and co-conspirator John Lazaro, as well as two others not named as co-conspirators, at an empty house Mckeon believed to be rented through Lazaro. There they attempted to extract additional methamphetamine from the liquid residue. This "drying" resulted in less than an ounce of low quality product, which Mckeon promptly sold for $200 (App., infra, 3a). In the early morning hours of May 23, 1980, two local police officers surreptitiously entered the Cape May house pursuant to a search warrant and removed a tray covered with drying methamphetamine. With permission of the issuing magistrate, the officers delayed returning an inventory, leaving the participants to speculate about what had happened to the missing tray (App., infra, 3a). On May 25, 1980, two DEA agents observed a meeting between respondent and Lazaro alongside Lazaro's car in the parking lot of a restaurant in Philadelphia. At one point, one of the agents observed respondent lean into the car. After Lazaro drove off, the agents overtook and stopped his car. They searched the car, as well as Lazaro and his wife Marianne, who was a passenger at the time. During the search, Marianne Lazaro threw away a clear plastic bag containing a white powder that her husband had handed to her after the meeting with respondent. Finding nothing, the agents allowed the Lazaros to leave. Eight hours later, one of the agents returned to the scene of the stop and found a clear plastic bag containing a small quantity of methamphetamine (App., infra, 3a-4a). /1/ From May 23 to May 27, 1980, the Cape May County Prosecutor's Office lawfully intercepted five telephone conversations between various participants in the conspiracy; the taped conversations were played for the jury at trial. In one conversation, Lazaro asked respondent, in code, for a quantity of methamphetamine and reported on the residue missing from the Cape May house, suggesting that "Mike" probably took it. In another conversation, Lazaro and respondent arranged the meeting in the parking lot. In a third conversation, Lazaro reported to respondent that he kicked "that piece" under his car during the May 25 stop by the DEA agents, and he wondered how the agents were tipped off (App., infra, 4a-5a). Additionally, in a conversation between Mckeon and Marianne Lazaro, the latter described the May 25 incident and suggested that respondent might have set them up. Mckeon assured her that respondent was not an informant. In the final intercepted conversation, Levan and John Lazaro discussed the missing residue and speculated about who had set Lazaro up for the May 25 stop (App., infra, 5a). 2. At trial, respondent sought to exclude the recorded statements of John Lazaro and the other co-conspirators on the ground that the statements did not satisfy the requirements of the co-conspirator exception to the hearsay rule. Fed. R. Evid. 801(d)(2)(E) (3 Tr. 285). He also challenged Lazaro's statements on Confrontation Clause grounds, arguing that that provision requires the government to establish that the nontestifying co-conspirator is unavailable to testify (id. at 285-286). The district court ruled that all the co-conspirator statements satisfied the requirements of Rule 801(d)(2)(E) (5 Tr. 574). /2/ Without expressly deciding whether the Confrontation Clause required the government to establish Lazaro's unavailability, the district court admitted Lazaro's statements in reliance on the government's representation that Lazaro would refuse to testify whether or not he had a valid Fifth Amendment privilege and was therefore unavailable (3 Tr. 292-293; 5 Tr. 574-575). /3/ 3. On appeal, respondent reiterated his contention that the admission of John Lazaro's recorded statements violated both the co-conspirator exception to the hearsay rule and the Confrontation Clause. The court of appeals held that Lazaro's statements fell within the coverage of the co-conspirator rule (App., infra, 8a-11a). However, the court went on to accept respondent's contention that the Confrontation Clause requires the government to show that a non-testifying co-conspirator is unavailable to testify as a foundation for admitting his out-of-court statements, and that the government had failed to make an adequate showing of Lazaro's unavailability in this case (id. at 11a-13a). In imposing an "unavailability" requirement under the Confrontation Clause, the court of appeals relied almost exclusively (App., infra, 12a) on this Court's dictum in Ohio v. Roberts, 448 U.S. 56, 65 (1980), that "in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case * * * the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." The court of appeals found no reason for excepting co-conspirator statements from "the clear constitutional rule laid down in Roberts" (App., infra, 12a). The court added (id. at 31a) that "it does not seem unreasonable to require the government to demonstrate that its hardship is real before availing itself of this tremendous evidentiary advantage." The court rejected the government's argument that Lazaro's unavailability had in fact been established (App., infra, 13a-16a). The government had represented to the district court that Lazaro was adamantly refusing to testify and was prepared to go to jail for contempt (id. at 15a). The government had also subpoenaed Lazaro, but he had failed to appear, claiming "car troubles" (ibid). The court of appeals suggested that the government should have requested a bench warrant to secure Lazaro's presence (ibid.) and insisted that nothing less than "an actual assertion of privilege and exemption by ruling of the court" would suffice to prove unavailability (id. at 16a). The court therefore reversed and remanded for a new trial (ibid.). 4. The government petitioned for rehearing with suggestion for rehearing en banc. First, the government challenged the panel's holding that under the Confrontation Clause the prosecution must show that a nontestifying co-conspirator is unavailable to testify in order to be able to introduce his out-of-court statements at trial. In addition, the government argued that, even if the court were correct in so holding, it erred in remanding for a new trial instead of for a limited hearing to determine whether Lazaro was in fact unavailable to testify and whether his testimony would have been helpful to the defense -- since only then would any purpose be served by holding a new trial. The court of appeals denied the petition with four judges dissenting (App., infra, 20a). REASONS FOR GRANTING THE PETITION 1. This case presents a question of great practical and doctrinal importance that has sharply split the courts of appeals. The introduction of co-conspirator declarations is an event that occurs thousands of times each year in criminal prosecutions across the land, and that heretofore has generally been thought not to be conditioned upon any showing of unavailability. And as cases like Ohio v. Roberts, 448 U.S. 56 (1980), show, a determination of unavailability can often be burdensome and controversial. Whether the Confrontation Clause imposes this substantial burden on the criminal trial process is a question that plainly warrants resolution by this Court. a. Statements made by co-conspirators in furtherance of a conspiracy have long been exempt from the hearsay rule. See, e.g., 4 J. Wigmore, Evidence in Trials at Common Law Section 1079 (J. Chadbourn ed. 1972) (hereinafter cited as Wigmore on Evidence); Mccormick on Evidence Section 267, at 645-646. This exemption is codified in traditional form in Fed. R. Evid. 801(d)(2)(E). Proof of the declarant's unavailability to testify at trial has never been a prerequisite for admission of such statements. Fed. R. Evid. 801(d)(2)(E); 4 Wigmore on Evidence Section 1079; Mccormick on Evidence Section 267. The co-conspirator rule is one of the most important and most frequently invoked exceptions to the hearsay rule. Following this Court's decision in Ohio v. Roberts, however, much confusion has developed among the lower courts regarding the constitutionality of the traditional co-conspirator rule. See Sanson v. United States, No. 83-6454 (June 25, 1984) (White, J., dissenting from denial of certiorari); Means v. United States, No. 83-6866 (Nov. 26, 1984), slip op. 1 n.1 (Brennan and White, JJ., dissenting from denial of certiorari). In the present case, the Third Circuit, purporing to follow Roberts, held that the admission of co-conspirator statements falling within Fed. R. Evid. 801(d)(2)(E) is barred by the Confrontation Clause unless the government produces the declarant or shows that he is unavailable to testify. Similarly, the Ninth Circuit recently held that the government had violated the Confrontation Caluse by introducing entries made in drug ledgers by unidentifiable co-conspirators. United States v. Ordonez, 737 F.2d 793, 802 (1984). The court faulted the government for failing to prove "that these unidentified persons were not available to testify at trial or that a good faith effort had been made to obtain their testimony" (ibid.). But see United States v. Snow, 521 F.2d 730, 736 (9th Cir. 1975), cert. denied, 423 U.S. 1090 (1976) (expressly rejecting "unavailability" requirement). In addition, two other courts of appeals, in post-roberts opinions, have suggested in dictum that proof of the declarant's unavailability may be a constitutional prerequisite for admission of co-conspirator statements. However, these courts went on to find that such a showing had been made in the cases before them. United States v. Lisotto, 722 F.2d 85, 88 (4th Cir. 1983), cert. denied, No. 83-1417 (Mar. 26, 1984); United States v. Peacock, 654 F.2d 339, 349-350 (5th Cir. 1981), cert. denied, 464 U.S. 965 (1983). /4/ In stark contrast to these decision, other courts of appeals have concluded that statements falling within the co-conspirator rule automatically satisfy Confrontation Clause standards. E.g., United States v. Kendall, 665 F.2d 126, 133 (7th Cir. 1981), cert. denied, 455 U.S. 1021 (1982); United States v. Papia, 560 F.2d 827, 836 n.3 (7th Cir. 1977); United States v. Mcmanus, 560 F.2d 747, 750 (6th Cir. 1977), cert. denied, 434 U.S. 1047 (1978); United States v. Swainson, 548 F.2d 657, 661 (6th Cir.), cert. denied, 431 U.S. 937 (1977); Ottomano v. United States, 468 F.2d 269, 273 (1st Cir. 1972), cert. denied, 409 U.S. 1128 (1973); see also United States v. Dunn, No. 84-1236 (1st Cir. Mar. 29, 1985), slip op. 19; United States v. Ordonez, 737 F.2d at 812-814 (Norris, J., dissenting). /5/ Similar division and confusion is evident among the state courts. Compare State of Arizona v. Martin, 139 Ariz. 466, 479-480, 679 P.2d 489, 502-503 (1984) (court unsure whether unavailability necessary under Roberts; holds that co-conspirator/declarant must be produced or shown to be unavailable where there is doubt as to accuracy or reliability of statement), and State v. Smith, 353 N.W. 2d 338, 341 (South Dakota 1984) (co-conspirator exception and Confrontation Clause "co-extensive" except in "unusual circumstances"), with State v. Bauer, 109 Wis.2d 204, 212-213, 325 N.W.2d 857, 862 (1982) (unavailability must be shown except in "special circumstances"). In light of the conflicing decisions of the federal courts of appeals and state courts and the apparent general confusion concerning this important issue, review by this Court clearly is warranted. b. In our view, there is no basis for the position that the Confrontation Clause imposes a requirement of unavailability or any other requirements that go beyond those embodied in the traditional co-conspirator rule. The courts reaching a contrary conclusion have relied almost exclusively upon the Roberts dictum. App., infra, 11a-13a; Ordonez, 737 F.2d at 802; Lisotto, 722 F.2d at 88; Peacock, 654 F.2d at 349-350; see also United States v. Gibbs, 739 F.2d 838, 852-854 (3d Cir. 1984) (en banc) (Rosenn, J., dissenting). But they have plainly misinterpreted Roberts by placing too much reliance on language taken wholly out of context. Roberts considered and rejected a Confrontation Clause challenge to the admission of testimony given at a preliminary hearing. No issue regarding the admission of co-conspirator statements was involved. In dictum, however, the Court observed (448 U.S. at 65): 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. See Mancusi v. Stubbs, 408 U.S. 204 (1972); Barber v. Page, 390 U.S. 719 (1968). See also Motes v. United States, 178 U.S. 458 (1900); California v. Green, 399 U.S. at 161-162, 167, n.16. /7/ /7/ A demonstration of unavailability, however, is not always required. * * * We believe that this statement, in context, meant only that the Confrontation Clause, like the hearsay rule, limits the admission of hearsay and that proof of the declarant's unavailability is sometimes a prerequisite for the admission of hearsay falling within one of the rule's exceptions. To the extent that the Court suggested that unavailability must be proved "(u)n the usual case" (448 U.S. at 65), the Court surely was referring to the admission of former testimony, a hearsay exception that has traditionally demanded such a showing. See Fed. R. Evid. 804(b)(1). This, of course, was the exception at issue in Roberts, as well as in each of the four cases cited by the Court: Mancusi v. Stubbs, 408 U.S. 204 (1972); Barber v. Page, 390 U.S. 719 (1968); Motes v. United States, 178 U.S. 458 (1900); and California v. Green, 399 U.S. 149 (1970). The court below in this case, and other like-minded courts of appeals, have read the Roberts dictum with unquestioning literalness to mean that co-conspirator statements -- and presumably other traditionally admissible out-of-court statements -- are generally barred by the Confrontation Clause unless the declarant's unavailability is shown. This is a revolutionary proposition that the Roberts Court could not have intended to adopt in such an offhand manner. Under the Federal Rules of Evidence promulgated by this Court, there are 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 hearsay exceptions -- including former testimony -- that require unavailability (Rule 804). Thus, if the court of appeals' reading of Roberts were correct, most of the traditional hearsay rule, which this Court endorsed in issuing the Federal Rules of Evidence, would contravene the Confrontation Clause. This seems most doubtful. Elsewhere in Roberts the Court observed (448 U.S. at 66) that the reliability of hearsay statements "can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." We believe that a similar approach is appropriate with respect to the requirement of unavailability. The traditional exceptions to the hearsay rule embody the thinking and experience of generations of judges, legislators, scholars, and practitioners, developed on the basis of considerations quite similar, if not identical, to those that would inform any Confrontation Clause inquiry. As the advisory committee note to Rule 804(b) explains: "Rule 803 supra, is based upon the assumption that a hearsay statement falling within one of its exceptions possesses qualities which justify the conclusion that whether the declarant is available or unavailable is not a relevant factor in determining admissibility." It is dubious that anything would be gained by reexamining this judgment under the uncertain light of the Confrontation Clause. The language of the Clause itself does not illuminate any of the difficult practical problems; indeed, "(i)t is common ground that the historical understanding of the clause furnishes no solid guide to adjudication." Dutton v. Evans, 400 U.S. 74, 95 (1970) (Harlan, J., Concurring). This Court has twice considered the relationship between the Confrontation Clause and the co-conspirator rule -- in Delaney v. United States, 263 U.S. 586 (1924), and in Dutton -- and those decisions support the view that statements falling within the traditional co-conspirator rule present no Confrontation Clause problems. In Delaney, 263 U.S. at 590, a Confrontation Clause challenge to the admission of co-conspirator statements was summarily turned aside. In Dutton, the Court upheld a state co-conspirator exception that went far beyond the traditional federal rule. Writing for the plurality, Justice Stewart noted and appeared to disapprove (400 U.S. at 80) the lower court's interpretation of the Confrontation Clause, because it would "require(...) a reappraisal of every exception to the hearsay rule, no matter how long established, in order to determine whether * * * it is supported by 'salient and cogent reasons.'" The plurality continued (ibid.): "(W)e do not question the validity of the coconspirator exception applied in the federal courts." Justice Harlan, the fifth member of the majority, would have gone further and held that the Confrontation Clause does not regulate the admission of hearsay, whether falling within a firmly rooted exception or not. c. Besides its mechanical reliance on the Roberts dictum, the court of appeals in this case provided scant explanation for its conclusion that unavailability must be proven. The court merely observed (App., infra, 13a): "(I)t does not seem unreasonable to require the government to demonstrate that its hardship is real before availing itself of this tremendous evidentiary advantage." The court's apparent reasoning -- that the government does not need to introduce co-conspirator statements unless the declarant is unavailable -- makes no sense and is in fact inconsistent with the court of appeals' disposition of this case itself. Co-conspirator statements, unlike certain types of hearsay such as former testimony (Fed. R. Evid. 804(b)(1), are not admitted on the theory that they are the best available substitute for unavailable live testimony. Instead, they are admitted because they have a discrete and independent probative value. The same is true for most of the other traditional hearsay exceptions for which unavailability need not be shown (see Fed. R. Evid. 803). A co-conspirator's live testimony is not a substitute for statements that he made during and in furtherance of the conspiracy any more than live testimony is a substitute for an excited utterance (Fed. R. Evid. 803(2)) or for a recorded recollection of "a matter about which (the) witness * * * now has insufficient recollection to enable him to testify fully and accurately" (Fed. R. Evid. 803(5)). The court of appeals implicitly recognized this point when it found no fault with the admission of out-of-court statements by those conspirators who testified at trial (see App., infra, 15a & n.6). But the court does not seem to have understood the implications of this result for its Confrontation Clause analysis. The other explanation sometimes given for requiring a demonstration of the co-conspirator / declarant's unavailability is that the prosecutor should be forced "to put forward the best case he has against the defendant." Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1403 (1972). This explanation, which suggests that prosecutors introduce co-conspirator statements because they do not wich to exert the effort needed to locate and produce the co-conspirator as a witness, is surprisingly blind to the realities of criminal prosecutions. A co-conspirator is almost always chargeable with a criminal offense. If he was a major participant in the illegal scheme, he will certainly be wanted for prosecution. And even if he was only a minor figure, the prosecution will usually be interested in exploring the possibility of obtaining his testimony, which may be far more devastating to the other conspirators than his out-of-court statement standing alone. For these reasons, we believe it would be quite rare for prosecutors to be indifferent to the whereabouts of conspirators or their availability as witnesses. When co-conspirator statements are offered and the declarant is not called as a witness it is usually because (a) the co-conspirator is thought still to be in league with the defendant on trial; (b) he is certain to take the Fifth Amendment or otherwise refuse to testify; or (c) he is truly beyond the law's reach. In any event, if a showing of unavailability is ever to be required, it can be justified only where the prosecution and the defense have unequal access to the declarant -- as, for example, where the declarant is in a witness protection program. /6/ In the present case, the declarant Lazaro's whereabouts were equally known to the prosecution and the defense. Lazaro was subpoenaed by the government but failed to appear due to "car problems" (see page 6 n.3, supra), and neither side pursued the matter further. If the defense had really wanted to obtain Lazaro's testimony and thought that he would waive any Fifth Amendment protection, it could and surely would have taken further steps. In reality, it seems quite clear that respondent's sole real interest was simply to nurture an issue to be raided on appeal. 2. Even assuming the court of appeals was correct in holding that the government must establish the co-conspirator / declarant's unavailability in order to be able to introduce his out-of-court statements, this case presents a second issue of substantial importance to the administration of criminal justice: whether the court of appeals erred in remanding for a new trial when the error it identified may have had no actual impact on the course of the first trial. /7/ It is our submission that, rather than reflexively ordering a new trial, the court of appeals should have remanded for a limited hearing to determine whether Lazaro was in fact unavailable to testify, as the government contended. If Lazaro was unavailable, any error in failing to establish that fact as a foundation for admission of his statements was plainly harmless. Moreover, it would be utterly pointless to conduct a new trial that would be the same as the trial respondent already had received. Such a new trial would not only waste a week of the court's time, but also would result in a serious imposition on all of the parties and would diminish the resources available to give prompt and fair trials to other defendants. See United States v. Gibbs, 739 F.2d 838, 857-858 (3d Cir. 1984) (en banc) (Seitz, J., Dissenting). Moreover, even if a limited remand hearing established that Lazaro would have testified, retrial would be unnecessary if the district court determined beyond a reasonable doubt that Lazaro's cross-examination would not have been helpful to the defense and that the violation of respondent's right to confrontation was therefore harmless. E.g., United States v. Hasting, 461 U.S. 499 (1983). A limited remand hearing for the purposes we have stated would not give the government a "second bite at the apple." At trial, there was no apparent need for the government to call Lazaro to the stand in order to establish his unwillingness to testify because the district court did not require the government to do so; insofar as the district court required a showing of unavailability at all, it was content to rely on the government's representation that Lazaro would refuse to testify whether or not he had a valid Fifth Amendment privilege. A limited remand hearing would give the government an opportunity to do what it has all along maintained it could do: establish Lazaro's unavailability. This Court has expressly recognized the advantage of remanding for a limited hearing that would give the trial court an opportunity to correct its error and could thereby obviate the need for retrial of the entire case. Thus, in Goldberg v. United States, 425 U.S. 94 (1976), the Court remanded the case to the district court for a determination whether under the correct standard, the particular writings in question there qualified as Jencks Act material that the government should have produced. Id. at 111. In so doing, the Court stated (id. at 111-112; footnote omitted): (W)e do not think that this Court should vacate (petitioner's) conviction and order a new trial, since petitioner's rights can be fully protected by a remand to the trial court with direction to hold an inquiry consistent with this opinion. The District Court will supplement the record with findings and enter a new final judgment of conviction if the court concludes after the inquiry to reaffirm its denial of petitioner's (Jencks Act) motion. This procedure will preserve petitioner's opportunity to seek further appellate review on the augmented record. On the other hand, if the court concludes that the Government should have been required to deliver the material, or part of it, to petitioner, and that the error was not harmless, the District Court will vacate the judgment of conviction and accord petitioner a new trial. See also, e.g., Waller v. Georgia, No. 83-321 (May 21, 1984), slip op. 9-11; United States v. Wade, 388 U.S. 218, 242 (1967); Jackson v. Denno, 378 U.S. 368, 394 (1964); Brady v. Maryland, 373 U.S. 83, 88-91 (1963); Campbell v. United States, 365 U.S. 85, 98-99 (1961). The court of appeals here should have followed the same procedure. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully Submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General SAMUEL A. ALITO, JR. Assistant to the Solicitor General JOEL M. GERSHOWITZ Attorney APRIL 1985 /1/ Marianne Lazaro, who was named as an unindicted co-conspirator and who testified for the government under a grant of use immunity, denied that the bag found by the agent was the same one that her husband had given her (App., infra, 4a). /2/ Three of the five conversations of Lazaro that were admitted were conversations with respondent (App., infra, 4a-5a) and thus may have constituted adoptive admission. Fed. R. Evid. 801(d) (2)(B); see also, e.g., 4 D. Louisell & C. Mueller, Federal Evidence Section 424 (1980); Mccormick's Handbook on the Law of Evidence Section 270 (E. Cleary 2d ed. 1972) (hereinafter cited as Mccormick on Evidence). However, this ground for admission was not urged or ruled on below. /3/ Of the other co-conspirators whose out-of-court statements were used, Mckeon and Marianne Lazaro both testified at trial under grants of immunity, and Levan properly asserted his Fifth Amendment privilege outside the presence of the jury (App., infra, 15a n.6). The government also subpoenaed John Lazaro to appear in order to establish his unavailability, but Lazaro failed to do so at the appointed time, allegedly because of "car problems" (4 Tr. 408). /4/ In earlier decisions, however, these same courts had taken the contrary view and held that the Confrontation Clause is coextensive with the co-conspirator exemption. See United States v. Lurz, 666 F.2d 69, 80-81 (4th Cir. 1981), cert. denied, 455 U.S. 1005 & 457 U.S. 1136 (1982); United States v. Burroughs, 650 F.2d 595, 597 n.3 (5th Cir.), cert. denied, 454 U.S. 1037 (1981). See also United States v. Johnson, 575 F.2d 1347, 1362 (5th Cir. 1978), cert. denied, 440 U.S. 907 (1979). /5/ Other circuits have taken the position that statements admissible under the co-conspirator rule must be scrutinized on a case-by-case basis to determine whether they are sufficiently reliable to satisfy the Confrontation Clause. See, e.g., United States v. Wright, 588 F.2d 31, 38 (2d Cir. 1978), cert. denied, 440 U.S. 917 (1979); United States v. Roberts, 583 F.2d 1173, 1175-1176 (10th Cir. 1978), cert. denied, 439 U.S. 1080 (1979); United States v. Kelly, 526 F.2d 615, 620-621 (8th Cir. 1975), cert. denied, 424 U.S. 971 (1976); United States v. Snow, 521 F.2d 730, 734-736 (9th Cir. 1975), cert. denied, 423 U.S. 1090 (1976). However, none of these cases holds that proof of the declarant's unavailability is a prerequisite for admission of co-conspirator statements. /6/ Even in those circumstances, the problem presented is more aptly classified as relating to a defendant's right to compulsory process, not confrontation, and should arise only where the defendant affirmatively seeks to secure the declarant's presence as a witness, something respondent never displayed the slightest interest in doing. /7/ This is a recurring problem. For example, in United States v. Van Dyke, 643 F.2d 992 (4th Cir. 1981), the court of appeals reversed a conviction and remanded for a new trial based on a Fourth Amendment violation. At the time of trial, the defendant had "automatic standing," but by the time of the appellate decision, the automatic standing doctrine had been overruled in United States v. Salvucci, 448 U.S. 83 (1980). The court of appeals recognized (643 F.2d at 995) that on remand the government should be allowed to show that the defendant's own Fourth Amendment rights had not been violated, in which case the same evidence could again be admitted at retrial. But the court rejected the suggestion in our rehearing petition that it should order a remand hearing rather than a retrial, even though retrial would be pointless if the evidence remained admissible. Likewise, in United States v. Johnson, 594 F.2d 1253 (9th Cir.), cert. denied, 444 U.S. 964 (1979), the court of appeals reversed convictions obtained following an exceptionally lengthy and complex trial and remanded for a new trial on the ground that the government had failed to make the foundational showing required by Fed. R. Evid. 1006 for introduction of certain summary charts. The court denied our rehearing petition, which argued that the appropriate disposition in the first instance was to remand for a hearing at which the opportunity would be afforded the government to establish that a proper foundation existed for admission of the summaries. Such reflexive ordering of a new trial, without considering the sufficiency of a more limited remand, may result in substantial injustice if reprosecution is precluded or hampered by the passage of time. At the very least, scarce judicial and prosecutorial resources are squandered by wholly unnecessary retrials at which the same evidence heard at the first trial is admissible at the second. APPENDIX