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United States v. Petrozziello

United States Court of Appeals, First Circuit
Jan 21, 1977
548 F.2d 20 (1st Cir. 1977)

Summary

requiring that court make explicit findings that it is "more likely than not that the declarant and the defendant were members of a conspiracy . . . and that the statement was in furtherance of the conspiracy"

Summary of this case from U.S. v. Thompson

Opinion

No. 76-1111.

Argued November 4, 1976.

Decided January 21, 1977.

Richard H. Gens, with whom Martin K. Leppo and Leppo Paris, Boston, Mass., were on brief, for appellant.

Wayne B. Hollingsworth, Asst. U.S. Atty., Boston, Mass., with whom James N. Gabriel, U.S. Atty., Boston, Mass., were on brief, for appellee.

Appeal from the United States District Court for the District of Massachusetts.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and GIGNOUX, District Judge.

Of the District of Maine, sitting by designation.


In early October, 1975, appellant was tried and convicted of conspiring to distribute heroin, of possessing heroin with intent to distribute it, and of carrying a firearm while committing these crimes. All three convictions grew out of a drug transaction that took place on February 13, 1975. On that day, federal agents arranged to purchase heroin from a drug dealer. The transaction was to take place at a Chinese restaurant later in the day. The agents drove the dealer to his "connection's" house. A few minutes later, appellant and the dealer left the house in appellant's car; they drove to the Chinese restaurant but left before the agent who arranged the deal could arrive. The agent later talked to the dealer by phone and persuaded him to return. Again the dealer and appellant showed up in appellant's car. The dealer entered the doorway of the restaurant and showed a package of heroin to the federal agent, who arrested him. Other agents moved in on appellant, who made a brief effort to drive away but found himself blocked by the agents' car.

When appellant was arrested, a student trainee took charge of his car. As the trainee was getting in, he noticed a gun on the front seat. At trial, the gun was introduced over appellant's motion to suppress, a ruling he contests in this appeal. The gun came into plain view when the trainee sat down; the only issue is whether he had a right to be sitting there. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Vehicles used to transport controlled substances may be forfeited. 21 U.S.C. § 881(a)(4). At the time of the arrest the agents had every reason to believe that the dealer's heroin had traveled to the scene in appellant's automobile. We need not decide whether this evidence alone would justify a forfeiture; it certainly provided probable cause to seize the car for possible forfeiture proceedings. The trainee's entry was necessary to the seizure. Introducing the gun at trial was therefore proper.

After his arrest, the appellant was given Miranda warnings. He did not sign a waiver, but an agent nonetheless asked him several "routine" questions, one of which concerned drug use. Appellant's statement to the agent that he did not use drugs was introduced over a general objection to show that appellant intended to distribute the heroin found in his possession. See 21 U.S.C. § 841(a)(1).

Continued custodial questioning, even "routine" questioning, after the accused has invoked his right to silence presents a serious constitutional issue. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The government contends that the statement was properly admitted; it disputes appellant's claim that he refused to waive his rights. We need not delve deeply into a factual controversy that makes its first appearance on appeal, for despite pretrial notice that appellant's statement would probably be used in this fashion, appellant made no effort to suppress the statement, nor did he make a specific objection during trial.

Appellant falls back on the plain error rule, F.R.Crim.P. 52(b), but it cannot save him. If this was error, it can hardly be called "plain". The testimony was so tangential that we can readily appreciate why court and counsel overlooked any problem caused by the testimony. Apart from any error not being plain, we cannot tell whether this was error at all. Appellant's failure to raise the issue below means that a critical factual dispute remains unsolved. We cannot find plain error on this silent record. See Sykes v. United States, 373 F.2d 607, 613 (5th Cir. 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967).

Appellant's last claim is that the evidence against him was insufficient. In particular, he focuses on the dearth of independent, non-hearsay evidence that a conspiracy existed between appellant and the dealer. Evidence of this sort, he argues, is a necessary foundation for the hearsay statements of the dealer, which were admitted under the co-conspirator exception. Because appellant was tried a few months after the new federal rules of evidence took effect, we must consider their impact. The new rules recognize the co-conspirator exception; statements are "not hearsay" if they are offered against a party who conspired with the declarant, and if they are made during and in furtherance of the conspiracy. Fed.R.Evid. 801(d)(2)(E). However, the rules make a change in the way the co-conspirator exception is applied. In this circuit, the jury has had a prominent role in deciding whether the co-conspirator exception can be invoked. Trial courts instruct the jury that a co-conspirator's hearsay may be used against a defendant only if the defendant's membership in the conspiracy has been established by independent, non-hearsay evidence. United States v. Honneus, 508 F.2d 566, 577 (1st Cir. 1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1677, 44 L.Ed.2d 101 (1975). The new rules, however, give the jury only a narrow responsibility for deciding questions of admissibility. Most issues are resolved finally by the judge. Contrary to this division of responsibility, the trial judge below allowed the jury to weigh the admissibility of the dealer's statements to the agents. Appellant, however, does not argue that this was error, and we will not disturb the verdict on this ground. The added layer of fact-finding may not be needed, Weinstein's Evidence ¶ 104[05], but it can seldom prejudice a defendant.

See Fed.R.Evid. 104(a) (b):
"(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
"(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."

That, however, is not the end of the matter. The new rules, by eliminating the jury's role, place a greater burden on the judge, for his decision is now conclusive. In years past, this circuit has followed the general rule that the judge should admit hearsay against a defendant if the judge finds enough independent, non-hearsay evidence to make a prima facie case of conspiracy. United States v. Johnson, 467 F.2d 804 (1st Cir. 1972), cert. denied, 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 270 (1973); see also United States v. Nixon, 418 U.S. 683, 701 n. 14 (1974). This standard makes sense when the jury has the last word; the judge should refuse to admit a co-conspirator's hearsay only when no reasonable jury could find that there was a conspiracy. But rule 104(a) requires that questions of admissibility be "determined" by the judge, and finding a prima facie case is not the same as "determining" that a conspiracy existed. A higher standard is implicit in the judge's new role.

Other changes in the rules also suggest a higher standard. The new rules permit a trial judge to base his "determination" on hearsay and other inadmissible evidence. Fed.R.Evid. 104(a). Continued reliance on a prima facie standard will either broaden the co-conspirator exception unconscionably or plunge the courts into metaphysical speculation about how a prima facie case can be built on inadmissible evidence.

The use of inadmissible evidence to determine the existence of a conspiracy seems to contradict the traditional doctrine that conspiracy must be proved by independent, non-hearsay evidence. It suggests that a conspiracy may be proved by the very statement seeking admittance. While the logic of the new rule may permit bootstrapping of this sort, earlier case law rejects it. Glasser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 86 L.Ed. 680 (1942). At the least, the Glasser teaching survives as an admonition that trial judges should give little weight to bootstrap evidence in deciding whether to admit hearsay under the co-conspirator exception. We do not chart this terra incognita in detail, for we conclude below that the admissible evidence was enough by itself to meet the standard we apply.

Although the prima facie standard is no longer appropriate, we see no reason to require that conspiracy be proved beyond a reasonable doubt. That is the standard the jury will apply to the evidence as a whole. The judge is ruling on admissibility, not guilt or innocence; the government's burden need not be so great. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); but see Weinstein's Evidence ¶ 104[05]. The ordinary civil standard is sufficient: if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy, the hearsay is admissible.

Here, the judge applied a prima facie standard rather than the one we find appropriate. But appellant never objected to the standard applied, nor did he make the arguments we now find persuasive. Without the benefit of an appellate decision on the issue, the judge's use of the traditional standard was not plain error. Cf. United States v. Honneus, supra, 508 F.2d at 577. Moreover, the non-hearsay evidence of conspiracy was strong. It showed that appellant and the dealer arrived at the restaurant in appellant's car. Appellant watched over his shoulder as the dealer entered the doorway to complete the sale. When agents approached the car, showing their badges but not their weapons, appellant nearly ran one down in an attempt to escape. At the time of his arrest, appellant was carrying heroin, and he had a loaded gun on the front seat of his car. We think this evidence makes it more likely than not that appellant and the dealer had conspired to sell heroin to the federal agents.

The judge insisted that the government present all its non-hearsay evidence first. He then decided whether that evidence permitted reliance on the co-conspirator exception. Nothing in the new rules or this opinion requires that the judge's meticulous approach be abandoned. Although time-consuming, it avoids the danger that hearsay will be admitted in anticipation of a later showing of conspiracy that never materializes.

Affirmed.


Summaries of

United States v. Petrozziello

United States Court of Appeals, First Circuit
Jan 21, 1977
548 F.2d 20 (1st Cir. 1977)

requiring that court make explicit findings that it is "more likely than not that the declarant and the defendant were members of a conspiracy . . . and that the statement was in furtherance of the conspiracy"

Summary of this case from U.S. v. Thompson

explaining that under Fed.R.Evid. 104, trial judge rather than jury has duty to hear evidence and determine admissibility of coconspirator statements

Summary of this case from U.S. v. Paredes-Rodriguez

In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), we held that Fed.R.Evid. 104(a) requires, in a conspiracy case, that questions of admissibility be determined solely by the judge.

Summary of this case from U.S. v. Richardson

In Petrozziello, we had for the first time the opportunity to interpret the impact of the newly promulgated Federal Rules of Evidence on the admissibility of coconspirators' statements.

Summary of this case from U.S. v. Machor

In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), we stated that "if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy, the hearsay is admissible."

Summary of this case from United States v. Johnston

In Petrozziello, the First Circuit adopted the preponderance of the evidence test for determining admissibility of co-conspirators' statements.

Summary of this case from United States v. Coe

In Petrozziello we enunciated a standard for the district courts to use in applying the coconspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E). "The ordinary civil standard is sufficient: if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy, the hearsay is admissible."

Summary of this case from United States v. Arruda

In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1973), we stated that a district court may admit an out of court declaration of a co-conspirator under Fed.R.Evid. 801(d)(2)(E) provided "it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy," id., 23, and in United States v. Ciampaglia, 628 F.2d 632 (1st Cir. 1980), we added that Petrozziello rulings are to be made at the conclusion of all the evidence, id., 638.

Summary of this case from United States v. Cranston

In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), we held that, in accordance with Federal Rule of Evidence 801(d)(2)(E), the trial judge rather than the jury must determine whether out-of-court declarations of coconspirators should be admitted against a defendant.

Summary of this case from United States v. Winter

In Petrozziello, the First Circuit adopted the preponderance of the evidence test for determining admissibility of co-conspirators' statements.

Summary of this case from United States v. Cassity

In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), we held that district courts should only admit out of court declarations of co-conspirators under Fed.R.Evid. 801(d)(2)(E) if "it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy."

Summary of this case from United States v. Ciampaglia

In Petrozziello, we announced that district courts should not admit out of court declarations of coconspirators under Fed.R.Evid. 801(d)(2)(E) without first finding that "it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy."

Summary of this case from United States v. David E. Thompson, Inc.

In Petrozziello, decided after the adoption of the new Federal Rules of Evidence, we held that the prima facie standard was "no longer appropriate."

Summary of this case from United States v. Pappas

In Petrozziello, supra, this circuit announced a new test to be applied by district courts when making the preliminary finding of a conspiracy, prerequisite to introduction of statements by alleged co-conspirators against one another.

Summary of this case from United States v. Pappas

In United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977), that court stated that the trial court may admit the statements of a coconspirator against a defendant only "if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy * * *."

Summary of this case from United States v. Lambros

In Petrozziello, we considered the issue whether the evidence preponderated in favor of the existence of a conspiracy to underscore that the appellant there could claim no prejudice.

Summary of this case from United States v. Mackedon

In Petrozziello, we said that "[w]ithout the benefit of an appellate decision on the issue, the judge's use of the traditional standard was not plain error."

Summary of this case from United States v. Mackedon

addressing the provisional admission of a statement in furtherance of a conspiracy

Summary of this case from United States v. Kilmartin

In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), the Court determined that under the new regime of the recently enacted Federal Rules of Evidence the jury would no longer have responsibility for deciding the admissibility of an out-of-court declaration.

Summary of this case from United States v. Dray

In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), the Court of Appeals held that district judges should not admit out of court declarations of co-conspirators under Fed.R.Evid. 801(d)(2)(E) without first finding that "... it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy..."

Summary of this case from United States v. Barletta

In Petrozziello in 1977, the First Circuit rejected the use of a prima facie standard in the identical Fed.R.Evid. 801(d)(2)(E) because it conflicted with the then new Fed.R.Evid. 104(a) (b), Petrozziello, 548 F.2d at 23.

Summary of this case from State v. Quimby

In United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977), the First Circuit found that Rule 104(a) required the judge to make such admissibility decisions.

Summary of this case from Butler v. United States
Case details for

United States v. Petrozziello

Case Details

Full title:UNITED STATES OF AMERICA, APPELLEE, v. RALPH PETROZZIELLO, DEFENDANT…

Court:United States Court of Appeals, First Circuit

Date published: Jan 21, 1977

Citations

548 F.2d 20 (1st Cir. 1977)

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