SANTOS DEJESUS, PETITIONER V. UNITED STATES OF AMERICA

   No. 86-1017

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the evidence was insufficient to support
the admission into evidence of the declarations of his co-conspirators
under Fed. R. Evid. 801(d)(2)(E).

   1. Following a bench trial in the United States District Court for
the Southern District of New York, petitioner was convicted of
conspiracy to distribute heroin and three substantive narcotics
counts.  He was sentenced to three years' imprisonment on the
conspiracy count and a five-year term of probation on the remaining
counts.  The court of appeals affirmed (Pet. App. A1-A11).

   Petitioner was tried on stipulated facts.  The evidence showed that
he was a member of a large heroin and cocaine distribution ring.  Much
of the evidence consisted of taped telephone conversations between two
other members of the ring, Louis Rupert Garcia (Papo), and Louis Soto
Garcia (Garcia).

   On July 30, 1984, Garcia, who was in Puerto Rico, telephoned Papo
in New York and instructed him to deliver 250 grams of heroin to
petitioner, whom Garcia had left in charge of the heroin business
while Garcia was away.  Garcia also instructed Papo to tell petitioner
that a man named "Nelson" would pick up the heroin from petitioner the
following day for delivery to Garcia.  Garcia and Papo then discussed
the quality of the heroin that was to be delivered that afternoon and
the delivery of an even higher quality heroin that was to take place
later.  Pet. App. A3.

   About an hour and a half later, Papo telephoned petitioner at a
number listed in the name of Garcia's wife.  When petitioner said he
had spoken with Garcia, Papo told petitioner to expect a delivery of
something in about an hour and that Garcia would be waiting for
petitioner to deliver it to him.  Petitioner replied that he would be
ready.  Pet. App. A3.

   Four days later, Garcia telephoned Papo from Puerto Rico and
informed him that he had received the heroin and that their plan had
"worked perfectly." Garcia and Papo then arranged another heroin
delivery in which petitioner would be the middleman.  Garcia gave Papo
petitioner's home telephone number and instructed Papo to see
petitioner the following day to arrange for the heroin delivery.  The
next day, Papo telephoned Garcia in Puerto Rico and told him that he
had delivered a half kilogram of heroin to petitioner.  Pet. App. A3.

   On September 6, 1984 DEA agents arrested petitioner.  During their
search of petitioner's residence the agents found various amounts of
cocaine, heroin, and narcotics paraphernalia.  That same day, agents
searched Papo's residence and found substantial evidence of a
narcotics conspiracy, including records corresponding to the sales of
heroin to Garcia that were negotiated by phone.  Pet. App. A4.

   The ocurt of appeals held that petitioner's admission that he had
been a middleman for Papo and Garcia, together with the nonhearsay
portions of the conversations between Papo and Garcia, constituted
sufficient independent evidence to support the admission into evidence
of the declarations made by Papo and Garcia in furtherance of the
conspiracy.

   2. The court of appeals was correct in concluding that there was
sufficient independent evidence to support the admission of the
co-conspirators' statements under Fed. R. Evid 801(d)(2)(E).  That
fact-bound question merits no further review.

   Rule 801(d)(2)(E) provides that a co-conspirator's statement made
during the course of, and in furtherance of, a conspiracy is not
hearsay and is therefore admissible into evidence.  Before the
co-conspirator's declarations are admitted into evidence, the
prosecution must establish that the declarants were members of a
conspiracy and that the defendant was a member of that conspiracy.
Even in circuits that require independent evidence of the existence of
the conspiracy, a defendant's admission qualifies as such independent
evidence.  See, e.g., United States v. Perez, 658 F.2d 654, 658-659
(9th Cir. 1981);  United States v. Franklin, 586 F.2d 560, 568-569
(5th Cir. 1978), cert. denied, 440 U.S. 972 (1979). Furthermore,
co-conspirators' statements that are considered for purposes other
than their truth also qualify as independent evidence of a conspiracy.
 See United States v. Cambindo Valencia, 609 F.2d 603, 635 n.24 (2d
Cir. 1979), cert. denied, 446 U.S. 940 (1980).  Cf. United States v.
Inadi, No. 84-1580 (Mar. 10, 1986), slip op. 10-11 & n.11
(co-conspirators' statements that are offered for a purpose other than
to establish the truth of the matter asserted are properly admitted
into evidence without raising Confrontation Clause concerns).

   Here, there was clearly sufficient independent evidence of a drug
trafficking conspiracy between petitioner, Papo, and Garcia to justify
admission of Papo's and Garcia's statements under Fed. R. Evid.
801(d)(2)(E).  First, petitioner's admissions that he was a middleman
between Papo and Garcia proved his participation in the transaction.
/*/ Second, large portions of the conversations between Papo and
Garcia were either verbal acts showing that the participants were
negotiating drug transactions, see United States v. Alvarez-Porras,
643 F.2d 54, 57-58 (2d Cir.), cert. denied, 454 U.S. 839 (1981);
United States v. Wolfson, 634 F.2d 1217, 1219 (9th Cir. 1980), or
statements reflecting their intentions to engage in drug transactions.
 See Fed. R. Evid. 803(3) (evidence of state of mind is an exception
to the hearsay rule);  United States v. Cicale, 691 F.2d 95, 103 (2d
Cir. 1982), cert. denied, 460 U.S. 1082 (1983).  On those grounds
alone, there was ample evidence of the existence of the conspiracy and
petitioner's participation in it.

   Because the evidence independent of the hearsay declarations
themselves was sufficient to support the district court's finding of a
conspiracy, there is no reason to hold this case pending the
disposition of Bourjaily v. United States, cert. granted, No. 85-6725
(Oct. 14, 1986).  One of the issues in that case is whether the trial
court must look only to independent evidence in determining whether a
conspiracy existed and whether the declarant and the defendant were
members of the conspiracy.  Because the district court and the court
of appeals in this case did not rely on the hearsay portions of the
declarations, but only on independent non-hearsay evidence, the
outcome of this case would not be affected by Bourjaily, regardless of
how that case is decided.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   JANUARY 1987

   /*/ Papo's statements to petitioner during their conversation were
admissible as adoptive admissions under Fed. R. Evid. 801(d)(2)(A) and
to provide the context of petitioner's own statements.  See United
States v. Alvarez-Porras, 643 F.2d 54, 57-58 (2d Cir.), cert. denied,
454 U.S. 839 (1981).