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