UNITED STATES оf America, v. Antonio John PALUMBO, II, Appellant.
No. 80-1312.
United States Court of Appeals, Third Circuit.
Decided Jan. 19, 1981.
Rehearing Denied March 13, 1981.
639 F.2d 123
Argued Sept. 15, 1980.
We conclude that Goadby has an adequate and complete damage remedy under Pennsylvania law to vindicate the equity claims asserted here. Accordingly, the district court erred by granting Goadby‘s motion for a preliminary injunction because of the existence of the various remedies at law available in the state system.
IV.
The judgment of the district court granting a preliminary injunction will be reversed and the case remanded with a direction to dismiss the complaint insofar as it relates to injunctive relief.6
Court,
Robert J. Cindrich, U. S. Atty., Paul J. Brysh (argued), Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before ADAMS, HUNTER and HIGGINBOTHAM, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
The appellant, Antonio John Palumbo II, was convicted on one count of conspiracy to possess and distribute cocaine, and on other counts relating to the possession and distribution of counterfeit bills. Although the indictment charges that Palumbo conspired with other individuals in the distribution of cocaine and counterfeit bills, he was the only person tried below. From our review of the record, this appeal raises two related questions. First, whether the district court properly admitted into evidence several grams of cocaine that was found in a search of an unindicted co-conspirator; and
I.
Palumbо was indicted on September 6, 1979 for the following offenses: conspiracy to possess and pass counterfeit bills, in violation of
At trial, much of the government‘s case was based on the testimony of an unindicted co-conspirator of Palumbo, Mary Jane Pfaff. Pfaff testified that in early August of 1978 she entered into an agreement with John Crosson to receive $5,000 in counterfeit bills, which she was to exchange for real currency. She returned part of this currency, per their agreement, to Palumbo a week later. Palumbo and shе agreed that he would supply her with counterfeit bills in the future, which she would exchange for real money and return in part to Palumbo. They engaged in several of these transactions during the fall of 1978.
Pfaff also stated that sometime between August, 1978 and October, 1978 she asked Palumbo to obtain some cocaine for her. According to Pfaff, he agreed, and later sold her one ounce of cocaine for $1,800 on two separate occasions. Pfaff stated that she resold some of the cocaine and retained some for her own use.
The principal problem raised in this appeal concerns several evidentiary rulings made by the trial court relating to the 12.7 grams of cocaine found in Pfaff‘s possession (along with $10,000 in counterfeit bills) when she was arrested on October 27, 1978. Pfaff told the arresting officer and later the grand jury that she had received the cocaine from Palumbo. At trial, however, Pfaff said she could not recall where she had gotten the cocaine. The court permitted the government, over defense objections, to remind her in front of the jury of her earlier identification of Palumbo in testimony before the grand jury. Pfaff continued to maintain that she could not recall the source. The court was not requested to
The jury convicted Palumbo on all of the Counts relating to the possession and distribution of counterfeit bills (Counts I, III, IV, V, and VI) and also on the charge of conspiracy to possess cocaine (Count II). It acquitted him of the Count relating to the distribution of cocaine (Count VIII). Thе Count relating to possession of cocaine with intent to distribute (Count VII) was dismissed during trial. The court imposed consecutive two year sentences for the two conspiracy convictions, a one year consecutive sentence for the possession conviction, and concurrent two year terms for the other three counts. The net result of the sentence was either a 5 or 6 year prison term.2 On appeal, Palumbo has asserted various errors by the trial judge. Although we find that his challenges to his conviction on the counterfeiting counts lack merit,3 we conclude that his challenge to the introduction of cocaine into evidence and certain related testimony is correct, and requires a reversal of his conviction for conspiracy to distributе that drug.
II.
There are two possible grounds under which it might be argued that the cocaine could have been admitted into evidence. We find neither rationale sufficient justification for its admission.
The first, which the district court relied on, is that the cocaine seized from Pfaff was admissible as evidence of a conspiracy between Pfaff and Palumbo to distribute cocaine, even though Pfaff may not have received that particular cocaine from the defendant. The trial court stated:
I am going to overrule the objection [to the admission of the cocaine] because I think part of the testimony here has been that there has been an agreement to distribute cocaine and that the Defendant delivered some cocaine to Pfaff, and, therefore, the cocaine, whether or not it agrees with the quantity delivered by the Defendant to Pfaff, is in part corroborat-
ing evidence of Pfaff‘s testimony with respect to the agreement to distribute, the conspiracy count. Objection will be overruled.
Transcript at 507. This rationale is impermissible. The mere fact that a co-conspirator of the defendant possessed cocaine cannot be used to implicate the defendant for possession or conspiracy to possess cocaine if, as in this case, there is no evidentiary connection made between the drug possessed by the co-conspirator and the defendant in the conspiracy in issue. See United States v. Falley, 489 F.2d 33, 37-38 (2d Cir. 1973). This precaution is certainly necessary where the witness, as here, has admitted that she was a frequent user of drugs, received drugs from various individuals, and does not recall whether she got the drugs in issue from or through the defendant.
The government argues on appeal, alternatively, that the district court properly admitted the cocaine into evidence because there was testimony from the arresting officer that Pfaff had identified Palumbo as the source. We conclude, however, that the district court should not have admitted this testimony because it was inadmissible hearsay. Although the trial judge did not offer a reason for his ruling, the government has suggested at oral argument that the statement came within the exception to the hearsay rule for declarations against interest, pursuant to
Hearsay exceptions. The following are not excluded by the hearsay rule if the deсlarant is unavailable as a witness:
*
(3) Statement against interest. A statement ... so far tended to subject him to civil or criminal liability, ... that a reasonable man in his position would not have made the statement unless he believed it to be true.
The Rule defines “unavailable as a witness” as follows:
(A) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant—
*
(3) testifies to a lack of memory of the subject matter of his statement ...
While it is true that Pfaff was “unavailable” within the meaning of the Rule, the reliability of her statement is less clear. The exception for declarations against interest “rests upon the assumption that one does not make statements that would damage himself unless the statement is true.” United States v. Bailey, 581 F.2d 341, 345-46 & n.4 (3d Cir. 1978) (citing 5 Wigmore on Evidence § 1455 (Chadbourne Rev. 1974)). The conclusion that a “reasonable man in [the declarant‘s] position would not have made the statement unless he believed it to be true,” often requirеs, therefore, a sensitive analysis of the circumstances in which the statement was made and the precise nature of the statement. The Advisory Committee on the Federal Rules of Evidence has warned, in particular, that the courts should exercise special caution when the statement was made by a defendant in police custody and against a co-defendant. “Whether a statement is in fact against interest,” the committee observed,
must be determined from the circumstances of each case. Thus a statement admitting guilt and implicating another person, made while in custody, may well be motivated by a desire to curry favor with the authorities and hence fail to qualify as against interest.
Advisory Committee Note to Rule 804 reprinted in 4 J. Weinstein and M. Berger, Weinstein‘s Evidence, at 804-24. Thus, this and other courts have found statemеnts implicating a co-defendant and made in police custody to be inadmissible under the rule. See, e. g., United States v. Love, 592 F.2d 1022, 1025 (8th Cir. 1979); United States v. Bailey, 581 F.2d at 345-46 & n.4.
When viewing the totality of “circumstances of [this] case,” we conclude that Pfaff‘s statement did not fall within the
We cannot discern, and the government has not suggested, any other grounds for the admission of the statement. The government concedes, as it must, that the testimony of Pfaff to the grand jury could not have supported the admission of the cocaine into evidence. The government made no attempt to introduce the testimоny as substantive evidence during Pfaff‘s cross examination or at any other point.6 Thus, we conclude that there was no properly
Finally, it remains to be considered whether the admission of the cocaine into evidence was an error of sufficient magnitude to warrant a reversal of the conviction for conspiracy to possess cocaine. We believe that it was. The admission of the drug into evidence indicated a direct connection between the defendant and the drug. The fact that this cocaine was actuаlly permitted to be passed among the jurors adds to its prejudicial impact. Moreover, in this case, hearsay testimony providing this link was impermissibly commented on by the prosecutor during cross examination and in his closing without an accompanying instruction by the trial court limiting its use to impeachment purposes. In these circumstances, “[t]he rule requires ‘an explicit admonition to the jury by the court at the time a prior inconsistent statement is admitted, and also an instruction at the close of trial, that the statement can be considered only as bearing on credibility.‘” United States v. Ragghianti, 560 F.2d 1376, 1381 (9th Cir. 1977) (quoting Bartley v. United States, 319 F.2d 717, 719 (D.C.Cir. 1963)). Other courts have found the intro-
III.
We therefore will vacate appellant‘s conviction on Count II for conspiracy to distribute cocaine, affirm his conviction on all other counts, and remand to the district court judge to consider the appropriate sentence.7
ADAMS, Circuit Judge, concurring.
Although I agree with the majority that Pfaff‘s identification of Palumbo as the source of the cocaine she carried at the time of her arrest was not admissible under
Implicit in the opinion for the Court is the assumption that
As originally drafted by the Advisory Committee,
Ultimate rejection of the sentence forbidding admission of inculpatory declarations against interest might suggest a Congressional intent that such declarations should be admitted when the requirements of
The House amended this exception to add a sentence making inadmissible a statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused. The sentence was added to codify the constitutional principle announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton held that the admission of the extrajudicial hearsay statement of one codefendant inculpating a second codefendant violated the confrontation clause of the sixth amendment.
The committee decided to delete this provision because the basic approach of the rules is to avoid codifying, or attempting to codify, constitutional evidentiary principles, such as the fifth amendment‘s right against self-incrimination and, here, the sixth amendment‘s right of confrontation. Codification of a constitutional principle is unnecessary and, where the principle is under development, often unwise.
S.Rep.No.93-1277, supra, at 21-22, U.S. Code Cong. & Admin.News 1974, p. 7068.
The dispute between the Senate and the House thus arose from differing judgments concerning the propriety of codifying evolving evidentiary principles based on constitutional considerations. Congress decided ultimately that limitations on admissibility mandated by the Confrontation Clause should be left to the courts to propound and refine. There is no indication, however, of a clash of opinion within the Congress about whether traditional justifications for hearsay exceptions apply to inculpatory declarations against interest. Significantly, no Congressional committee suggested that inculpatory declarations are insufficiently reliable to be included within the
In my view, then, the history of the drafting of
The Supreme Court has had several occasions to examine the relationship between the Confrontation Clause and the exceptions to the rule against hearsay. See, e. g.,
With respect to inculpatory declarations against interest, I believe that admission is proper only when it is demonstrated that “corroborating circumstances clearly indicate the trustworthiness of the statement.”5 When combined with the condi-
tions already written into
In the present case, the first of these prerequisites is satisfied.
The majority concludes that the second precondition of
I am not so convinced as the majority that Pfaff‘s statement was not against her interest. In United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978), the Fifth Circuit
The facts of the present case parallel the situation in Alvarez: the witness (FBI Agent Ogilvie) testified that the declarant (Pfaff) had identified the defendant (Palumbo) as the source for illegal substances. As in Alvarez, Pfaff‘s statements would tend to indicate her personal participation in criminal activity and to convey the impression that she had an insider‘s knowledge of the wrongdoing. By identifying her source, Pfaff was admitting that her possession of the drug was knowing. See United States v. Bagley, 537 F.2d 162 (5th Cir. 1976) (inmate‘s statement that he furnished defendant with heroin held to be against inmate‘s interest, since it conceded
Although I conclude that the statement made by Pfaff upon arrest was against her interest, in my view the statement is not supported by sufficient “indicia of reliability” to warrant its admissibility under
The invocation of a name may be gratuitous, may be deliberately false in order to gain advantages for the declarant greater than those that would flow from naming a real participant or no one at all, may be a cover for concealment purposes (another kind of “advantage“), or may represent an effort to gain some kind of personal revenge.
Davenport, The Confrontation Clause and the Coconspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1378, 1396 (1972). The Advisory Committee that drafted
In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court identified several circum-
The evidence excluded by the state courts in Chambers consisted of three confessions made by one McDonald to the crime with which Chambers was charged. In concluding that the context in which these admissions were made offered “considerable assurance” of their reliability, the Court observed that “each of McDonald‘s confessions was made spontaneously to a close acquaintance shortly after the murder had occurred.” Id. at 300, 93 S.Ct. at 1048. In contrast, Pfaff‘s purported admission took place only after she had been taken into custody, and may have been prompted by a belief that she would thereby gain favorable treatment from the police or prosecutor. Moreover, hеr comments were not
There also is no indication that Pfaff was aware, at the time she allegedly identified Palumbo as her source for cocaine, that this admission might be against her own interest. Professor Morgan has argued that unless the declarant is aware that her statement tends to subject her to criminal liability, the assumption that the assertion is more reliable than other forms of hearsay is unjustified.11 Finally, Pfaff‘s personal history, marked by frequent use of drugs and treatment for psychological disorders, further weakens her trustworthiness.
UNITED STATES JAYCEES, a non-profit Missouri Corporation, and Pennsylvania Junior Chamber of Commerce, a non-profit Pennsylvania Corporation, Appellants, v. PHILADELPHIA JAYCEES, a non-profit Pennsylvania Corporation.
No. 80-1201.
United States Court of Appeals, Third Circuit.
Argued Oct. 17, 1980.
Decided Jan. 30, 1981.
Rehearing Denied March 4, 1981.
Notes
These sections provide as follows:
Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
Whoever, with intent to defraud, passes, utters, publishes, or sells, оr attempts to pass, utter, publish, or sell, or with like intent brings into the United States or keeps in possession or conceals any falsely made, forged, counterfeited, or altered obligation or other security of the United States, shall be fined not more than $5,000 or imprisoned not more than fifteen years, or both.
Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distributе, or dispense, a controlled substance;
or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
Other cases in which the admissibility of inculpatory declarations against interest was tested byWe cannot hold on appeal that this prior statement would have been admissible under
A statement is not hearsay if—
(1) Prior statement of witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is
(A) Inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial hearing, or other proceeding, or in a deposition ...
Pfaff‘s assertion that she could not recall where she obtained the cocaine was not necessarily inconsistent with her prior statement that she had received the cocaine from Palumbo, as required by the Rule. Several courts have recognized that lack of memory as to the substance of a prior statement may not be inconsistent in certain circumstances with the prior statement. See United States v. Rogers, 549 F.2d 490, 496 (8th Cir. 1976); United States v. Insana, 423 F.2d 1165, 1170 (2d Cir.), cert. denied, 400 U.S. 841 (1970). As Judge Weinstein has written in his treatise:
[I]t would seem that the prior statement should not be included under 801(d)(1)(A) if the judge finds that the witness genuinely cannot remember, and the period of amnesia or forgetfulness is crucial as regards the facts in issue.
4 Weinstein‘s Evidence § 801(d)(1)(A)[04], 801-98.
Accord, United States v. Thomas, 571 F.2d 285, 288-89 (5th Cir. 1978); United States v. Barrett, 539 F.2d 244, 251 (1st Cir. 1976); United States v. Satterfield, 572 F.2d 687, 691 (9th Cir. 1978).