UNITED STATES of America v. CAPUTO, Fiore, a/k/a “Curly”
No. 82-1791
United States Court of Appeals, Third Circuit
Decided March 29, 1985
As Amended April 17, 1985
758 F.2d 944
Before ALDISERT, Chief Judge, and HIGGINBOTHAM and SLOVITER, Circuit Judges.
Argued Jan. 9, 1984.
We conclude, therefore, that plaintiffs’ future F.E.L.A. causes of action were not dischargeable claims under section 77, and that the district courts erred in determining otherwise.1 Our disposition of this issue makes it unnecessary for us to reach plaintiffs’ alternative arguments.
IV.
CJI and Reading have presented additional contentions to this court. CJI contends that the plaintiffs in the state court action and intervenor Conrail in that action are collaterally estopped from arguing that their rights against it were not discharged. Reading contends that plaintiffs’ causes of action cannot be asserted against the reorganized Reading Company because plaintiffs’ alleged injuries were caused by a wholly different entity: the former Reading Company. The legal basis for Reading‘s argument is not clear. On the one hand, Reading appears to argue that, as a matter of bankruptcy law, a section 77 reorganization proceeding necessarily results in an entity that is wholly distinct from the debtor. On the other hand, Reading‘s argument may be that, pursuant to the corporate law under which Reading is organized, it cannot be held liable for plaintiffs’ claims because it is neither the same entity as the former Reading Company nor a successor corporation.
We do not address these arguments on the merits because they have not yet been considered by the district courts. Nor for the same reason do we consider any possible recovery against Mr. Timpany, as Trustee. The defendants will be afforded an opportunity to make their arguments before those courts on remand.
The judgments of the district courts will be reversed and the cases remanded for further proceedings consistent with this opinion.
Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr. (argued), Glenn B. Bronson, Asst. U.S. Attys., Philadelphia, Pa., for appellee.
OPINION OF THE COURT
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
I.
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
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 meth
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 consignment.
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 17th, 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
II.
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.1 Before reaching the
A.
At an in-chambers conference held prior to the beginning of the trial, counsel for Caputo made the following objections:
The[y] 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 trial and we do not expect that he will at this trial.
The district court, stating that it was “unwilling to assume that the evidence ... will be identical with the last trial,” but that it hoped “there will be a certain consistency between what I did at the first trial and what I do now,” did not issue a ruling in limine. At the end of Bocella‘s direct testimony, counsel for Caputo moved as follows:
I move to strike and move for a mistrial based upon the statements of this witness as to what DiPasquale said about Curly on two specific occasions. The first was soup for Curly.... [B]y allowing it, the Court deprived my client of the right to confrontation of these circumstances.
The same argument, Your Honor, as to the mention by DiPasquale of Curly on the 29th of January, 1982, at the oriental restaurant in Willow Grove where DiPasquale was allegedly saying, “I have to call Curly,”
....
The district court denied this motion. After the tape-recorded conversation between DiPasquale and Woodward was played, counsel for Caputo again rose:
I think Your Honor anticipated the Motion I made the last time. I renew it and move to strike the testimony as it relates to DiPasquale‘s statement about his partner, upon the same basis as I did before.... [I]t deprives my client of his right to confront Mr. DiPasquale.
If his testimony is to be offered in evidence against him at this trial, I would move to strike it and move for a mistrial because of its introduction.
....
I anticipate that there will be other mentions on this tape by my client. Will it be necessary for me to come to side-bar to point every one of them out? Could I have a continuing objection?
THE COURT: You have preserved your objection.
Counsel for Caputo, at the end of Detective Woodward‘s testimony, again moved to strike DiPasquale‘s out-of-court statements. At the close of the government‘s case-in-chief, counsel for Caputo objected to the admission of certain exhibits, includ
I think the two tapes in particular and also the telephone book seized from Mr. DiPasquale which is G-9, that particularly deprives my client of his right to confrontation as to Mr. DiPasquale.
In Gibbs the defendant-appellant, like Caputo, sought reversal of his conviction of conspiracy to distribute marijuana on the ground that a coconspirator whose out-of-court statements were admitted into evidence did not testify and was not shown to be unavailable to testify. At no time, however, during the government‘s case-in-chief did Gibbs object to this evidence on Confrontation Clause grounds. At the close of the government‘s case, Gibbs did raise a sixth amendment objection, on the ground that he had not been able to cross-examine the coconspirator-declarant. Gibbs did not, however, at that time specifically contend that the government had the burden of showing that the declarant was unavailable. Thus, we said, “it is solely by reason of Gibbs’ failure to raise the issue of [the declarant‘s] availability before the district court, that the record is barren of any evidence of [the declarant‘s] unavailability.” 739 F.2d at 848. We noted that under
In addition to being insufficiently specific to call the nature of the objection “to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures.”
It is clear that Caputo‘s Confrontation Clause objection was timely made. It was first raised, in limine, before the government began its case-in-chief, and was repeated each time out-of-court statements by DiPasquale were introduced, until the court granted a continuing objection, noting “[y]ou‘re just trying to protect your client. I note your objection and you have preserved it.”
Whether Caputo‘s objection was sufficiently specific is somewhat more doubtful under Gibbs. As in Gibbs, we find no specific mention of “unavailability“. We cannot, however, say that this is a case where the nature of the objection eluded the government and the district court, nor is it only by reason of Caputo‘s failure to raise the issue that the record is “barren” of any evidence of DiPasquale‘s unavailability. In its memorandum opinion denying Caputo‘s post-trial motions, the district court stated that a “demonstration of unavailability may not even be required in cases dealing with the co-conspirator exception,” but held in any event that the government‘s “good-faith representation” that DiPasquale was not called as a witness because he would have invoked his fifth amendment privilege was a sufficient demonstration of unavailability. Thus, it is apparent that both the government and the district court understood the nature of the Confrontation Clause objection, and if the record is barren of any evidence of unavailability the reason was the district court‘s belief that such evidence was unnecessary, or, in the alternative, that the government‘s representations were sufficient to meet its burden. In these circumstances, we violate no rule of evidence or judicial economy by determining whether the district court was in error. Thus, we will proceed to the merits of Caputo‘s Confrontation Clause claim.
B.
The sixth amendment provides that “[i]n all criminal prosecutions, the accused shall
a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895). Viewed in this light, the sixth amendment‘s Confrontation Clause can be seen to “stem from the same roots” as the evidentiary rule excluding hearsay. Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970) (footnote omitted). See also
The Confrontation Clause has not, however, been “construed to bar all use of out-of-court statements as evidence of criminal guilt,” United States v. Inadi, 748 F.2d 812, 818 (3d Cir.1984). Nor has it been equated with the hearsay rule and its traditional exceptions. Dutton v. Evans, 400 U.S. at 86, 91 S.Ct. at 218. Rather, the Supreme Court has steered “a middle course,” Ohio v. Roberts, 448 U.S. 56, 68 n. 9, 100 S.Ct. 2531, 2539-40 n. 9, 65 L.Ed.2d 597 (1980), that recognizes that the Confrontation Clause “imposes requirements separate from, and sometimes more stringent than, the hearsay rule and its many exceptions,” Inadi, 748 F.2d at 818. Specifically, the Supreme Court has held that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay“: “[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.‘” Ohio v. Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2538-39.2 The Court did suggest,
Most jurisdictions have traditionally recognized an exception to the hearsay rule for the out-of-court statements of a party‘s coconspirators. Under the Federal Rules of Evidence an out-of-court statement that is “offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is classified as an “admission” and excluded from the definition of hearsay.3
In the instant case the government failed to produce the coconspirator-declarant James DiPasquale so that he could be cross-examined regarding his out-of-court statements that were admitted into evidence against Caputo. Thus, the government had the burden of showing that DiPasquale was unavailable to testify.5 We find that the government did not meet its burden6 in this case.
The government contends that it satisfied any burden it had to establish DiPasquale‘s unavailability when it apprised the district court, at some stage during the proceedings below,7 that DiPasquale was under indictment in a related case and would have invoked his fifth amendment privilege if called to testify. The district court found that “[t]his good-faith representation is sufficient to show the necessity of introducing the declaration in the constitutional sense.” We, however, believe that “[t]he right of confrontation may not be dispensed with so lightly.” Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968).
In Inadi, 748 F.2d at 819-820, we held that, for purposes of Confrontation Clause analysis, unavailability to testify may be established by an assertion of the fifth amendment privilege and exemption by ruling of the court. Moreover, we suggested that “where the trial judge has a record—for example, in the form of an affidavit—that clearly establishes that the declarant would claim the privilege and that requiring him to appear in court would be a meaningless formality” an actual assertion of the privilege in-court might not be necessary. 748 F.2d at 820 n. 7 (as amended February 8, 1985). Here, however, the trial judge had nothing more than the representations of government counsel that DiPasquale would have taken the fifth. In Inadi we held that the government‘s assertions, on appeal, that a coconspirator-declarant would probably have taken the fifth did not establish unavailability. We believe that Inadi controls the result in this case. We would open a new chapter indeed in the history of our adversary system were we to permit the proponent of evidence to lay a constitutionally required foundation by such ipse dixit. Moreover, as we stated in Inadi, 748 F.2d at 820, “[u]nlike defendants, witnesses have no blanket right to stand mute.” Thus, even if the trial judge could have been reasonably certain that DiPasquale—who had already pleaded guilty to the charges contained in this indictment—would have asserted his fifth amendment privilege, there was clearly not sufficient evidence in the record for the trial judge to determine that the assertion would have been proper and that an exemption from testifying would have been appropriate. “[I]f there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectua
CONCLUSION
For the reasons set forth above, the judgment of conviction will be reversed and the case remanded for further proceedings consistent with this opinion.
SLOVITER, Circuit Judge, dissenting.
The majority‘s holding that the Confrontation Clause of the Sixth Amendment requires the government either to call a coconspirator declarant or prove his or her unavailability before the coconspirator‘s statement is admissible represents an unwarranted extension of Supreme Court precedent. This holding, which reiterates that recently announced in United States v. Inadi, 748 F.2d 812 (3d Cir.1984) (also authored by Judge Higginbotham), will seriously hamper the government‘s use of such statements in the numerous conspiracy cases that it brings. While such a result would not justify disagreement with the majority‘s holding were it constitutionally compelled, I see no persuasive reason for the majority‘s conclusion that it is. Therefore, I respectfully dissent.
The majority relies on the Supreme Court‘s decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), for its conclusion that unavailability must be shown in the circumstances of this case. I believe that reading is overbroad. In the first place, Roberts dealt, not with a coconspirator‘s statement, but with a witness’ prior testimony that had been given at a preliminary hearing. Thus the statement, unlike a coconspirator‘s statement, was clearly hearsay. In the second place, the Court held that the witness’ unavailability at trial was established, so the language upon which the majority relies is dictum. It is true, of course, that in the course of the decision the Court stated broadly:
The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. 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.
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.”
Id. at 65, 100 S.Ct. at 2539 (emphasis added) (citations and footnote omitted). However, even taken literally, the language does not purport to impose an unavailability requirement in all cases, since the Court referred to the “usual case“. There is no indication that the Court intended to apply its Confrontation Clause analysis to instances other than those in which unavailability was traditionally required at common law and which are codified in
The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available. The theory finds vast support in the many exceptions to the hearsay rule developed by the common law in which unavailability of the declarant is not a relevant factor.
The third reason why Roberts does not compel the result the majority reaches is that the Court itself stated:
A demonstration of unavailability, however, is not always required. In Dutton v. Evans, 400 U.S. 74 [91 S.Ct. 210, 27 L.Ed.2d 213] (1970), for example, the Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness.
Roberts, 448 U.S. at 65 n. 7, 100 S.Ct. at 2538 n. 7. In Dutton, cited by the Court in Roberts for the proposition that unavailability is not required, the plurality concluded that the introduction of a coconspirator‘s statement that was admissible under applicable state law did not violate the Confrontation Clause (which also applies to the states) because there were sufficient indicia of reliability, even though the witness was not shown to be unavailable. Therefore, the approving reference to Dutton by the majority in Roberts casts substantial question on Judge Higginbotham‘s reliance on Roberts for precisely the opposite conclusion.
Even if the majority were correct in its conclusion that there must be a showing of unavailability before hearsay statements can be admitted into evidence, which was the only issue before the court in Roberts, the fundamental flaw in the majority‘s analysis is its treatment of a coconspirator‘s statement as hearsay. The majority fails to give adequate recognition to the fact that under the Federal Rules of Evidence, a coconspirator‘s statement is not hearsay. “[T]he Federal Rules of Evidence categorize coconspirator statements along with admissions as ‘[s]tatements which are not hearsay’ under Rule 801(d)(2)“. United States v. Ammar, 714 F.2d 238, 255 (3d Cir.), cert. denied, U.S. —, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983). This view is in accord with the longstanding principle that statements made by a coconspirator, in the course of and in furtherance of the conspiracy, are, like acts committed by a coconspirator, substantively attributable to the other coconspirators as though the statements were their own. See generally, Mueller, The Federal Coconspirator Exception: Action, Assertion, And Hearsay, 12 Hofstra L.Rev. 323, 331-35 (1984);
I do not agree with the majority that the “mere” fact that the drafters of the Federal Rules chose to exclude coconspirators’
Evidence falling within the hearsay exceptions is admissible because of its special trustworthiness. See McCormick, supra, § 262, at 628; 5 Wigmore on Evidence §§ 1420, 1422. Admissions, on the other hand, are not admitted because of confidence in their inherent reliability. They are instead admitted because a party will not be heard to object that s/he is unworthy of credence. As explained by the Advisory Committee, “Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule ....”
Id. (citation omitted).
The majority reasons that because in Ammar we held that coconspirators’ statements are subject to a reliability inquiry under the Confrontation Clause, it follows that we must also subject such statements to an unavailability inquiry. That conclusion does not follow ineluctably. While reliability is a core value at issue either directly or in the abstract as to all evidence, the availability of a declarant is not always as important.
The distinction was implicitly recognized in Roberts. There the Court, in explaining its imposition of an unavailability requirement to certain forms of hearsay, referred to its “preference for face-to-face confrontation at trial,” 448 U.S. at 63, 100 S.Ct. at 2537, but at the same time recognized that in some cases “the utility of trial confrontation [is] remote.” Id. at 65 n. 7, 100 S.Ct. at 2538 n. 7. A party‘s admissions are among the statements falling within this latter group, since it is well established that a defendant‘s earlier statements are admissible, whether or not the defendant chooses to testify. See generally McCormick on Evidence § 145 (1972). Since coconspirator statements are treated as a category of party admissions, see
The same rationale for dispensing with the availability requirement applies to both admissions and coconspirator statements. As to admissions, once the declarant has become a defendant, there may be a natural incentive to exculpate oneself and retract an earlier adverse admission. Since there was no such incentive when the statement was first made, the law admits it. There is a similarly strong temptation or incentive to retract a coconspirator statement since the declarant‘s cohort has now become a defendant and the declarant may also face prosecution. As with a defendant, the tendency to exculpate oneself or one‘s coconspirator at trial gives special utility to the admissibility of the earlier statements, even if the declarant may be available to testify. In both instances, the utility of trial confrontation is weaker than the utility of introduction of the earlier statement.
Moreover, a coconspirator‘s statement must meet the requirements established in
The Confrontation Clause was intended to prevent such gross abuses as trial by affidavit or deposition of principal witnesses. To shift the clause into a means to eliminate longstanding rules of evidence and to fix new ones in constitutional concrete “carries the seeds of great mischief,” as Justice Harlan commented. Id. at 94-95, 91 S.Ct. at 222-23. The majority‘s conclusion increases the number of declarants who must mechanically appear at trial, and thereby complicates and protracts the proceedings.
Even if the majority were correct in its statement of the law, I would dissent from its judgment of reversal. It seems clear to me that introduction of DiPasquale‘s statements, even if violative of Caputo‘s Confrontation Clause rights, was harmless beyond a reasonable doubt. The statements of DiPasquale at issue here were repetitive of the direct testimony of several witnesses. Anthony Canale testified at length and in considerable detail that on several occasions he purchased methamphetamine from Caputo, sold it, and split the proceeds with Caputo. Most of these transactions also involved coconspirator DiPasquale. See Supp.App. at 24a, 33a-37a, 39a-42a, 45a-46a. Joseph Bocella, a witness cooperating with the prosecution, testified that he met with Canale and Caputo to buy methamphetamine. Supp.App. at 128a-129a. Thus, in the context of all the evidence, the introduction of the statements of DiPasquale would not warrant the reversal ordered by the majority. Harrington v. California, 395 U.S. 250, 253, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); United States v. Massa, 740 F.2d 629, 641 (8th Cir.1984).