ARNOLD SQUITTIERI AND ALPHONSE SISCA, PETITIONERS V. UNITED STATES
OF AMERICA

   No. 89-246

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The order of the court of appeals affirming petitioners'
convictions, Pet. App. 1a-3a, is unpublished, but the judgment is
noted at 879 F.2d 861 (Table).  The opinion and order of the district
court denying the motion to suppress is reported at 688 F. Supp. 163.
The opinions of the district court admitting other crimes evidence,
Pet. App. 4a-7a, and evidence of tape recordings, Pet. App. 8a-17a,
are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 12, 1989.
The petition for a writ of certiorari was filed on August 10, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court should have excluded "other crimes"
evidence.

   2. Whether the district court applied the wrong standard in
determining that certain tape-recorded evidence satisfied the
authentication requirement of Fed. R. Evid. 901(a).

   3. Whether the district court erred in admitting expert testimony
on the meaning of certain recorded conversations.

                               STATEMENT

   A jury in the United States District Court for the District of New
Jersey convicted petitioners on one count of conspiracy to distribute
and to possess with intent to distribute heroin, in violation of 21
U.S.C. 846, and one count of distribution of heroin, in violation of
21 U.S.C. 841(a)(1).  The district court sentenced petitioners to
concurrent terms of 17 years' imprisonment on each count and to six
years' special parole on the distribution count.  It also fined each
petitioner a total of $100,000.  The court of appeals summarily
affirmed.

   Petitioners were members of a heroin distribution operation headed
by Angelo Ruggiero and others from September 1981 to June 1982.  At
trial, the government introduced evidence from two independent sources
to prove the conspiracy and distribution.  First, it introduced tapes
of court-ordered electronic surveillance of Ruggiero's home and
telephone.  Second, it offered the testimony of Richard Pasqua, who
declared that he had purchased a kilogram of heroin from petitioners
in June 1982.

   1. At trial, the government played recordings of 33 telephone
conversations that were overheard on Ruggiero's telephone and an
additional nine conversations that were overheard on a listening
device in Ruggiero's home.  The recorded telephone conversations
established that petitioners were partners, that they were associated
with John Gotti, that they were in some kind of business with Ruggiero
that they would not discuss on the telephone, and that petitioners
were frequently referred to by nicknames -- "Zeke" for Squittieri and
"Funzi" for Sisca.  Gov't C.A. Br. 6-8.  The recordings, as well as
physical surveillance evidence, showed that a focal point of
petitioners' business with Ruggiero was the Patio Deli in Queens, New
York, and that their dealings also involved John Carneglia, a partner
of Ruggiero.  Id. at 9-10.  The conversations overheard in Ruggiero's
home showed that the business involved heroin and that Ruggiero and
Gotti were concerned about whether they should give petitioners heroin
on consignment or demand the money for it on delivery.  Id. at 10-16.

   2. Richard Pasqua testified that he had known petitioners since
childhood and was particularly close to petitioner Sisca.  Both Pasqua
and Sisca were incarcerated in the federal prison at Lewisburg,
Pennsylvania, during late 1980 and early 1981.  At that time, Pasqua
testified, Sisca spoke to him frequently about heroin.  Sisca told
Pasqua that he planned to associate with John Gotti and Angelo
Ruggiero when he was released from prison and that he intended to
become the biggest drug dealer in New York.  Pasqua told Sisca that
he, too, planned to go into the heroin business.  Pasqua and Sisca
were both released on parole in the summer of 1981.  Gov't C.A. Br.
17-18;  C.A. Supp. App. 321-336.

   When Pasqua's mother died in October 1981, petitioners went to the
vigil.  While they were there, they spoke to Pasqua about buying
heroin from him, since they had heard he was in the business and doing
well.  Sisca also conveyed the condolences of John Gotti and Angelo
Ruggiero, and he said he could get money from Gotti to buy heroin.
Pasqua replied that he and his partner were waiting for a shipment and
that he would like to buy some in the meantime.  Petitioners agreed to
sell Pasqua one kilogram of heroin for $180,000.  The sale took place
the following Monday.  Gov't C.A. Br. 18-20;  C.A. Supp. App. 339,
342-361.

   Pasqua did not see petitioners again until June 1982, when he once
again needed an alternate source of heroin.  At that time, Pasqua met
with petitioners and they agreed to sell him one kilogram of heroin
for the same price as before, $180,000.  At a subsequent meeting at
which Pasqua was to make a payment, Angelo Ruggiero accompanied
petitioners.  Ruggiero told Pasqua that he should return the heroin if
he was having trouble selling it, and he suggested the name of someone
who could help him sell the drugs.  Gov't C.A. Br. 20-22;  C.A. Supp.
App. 365-378, 407-418.

                               ARGUMENT

   1. Petitioners claim that the district court erred by admitting
"other crimes" evidence, which is inadmissible if it is offered to
prove criminal propensity.  Fed. R. Evid. 404(b);  Pet. 8-15.  The
other crimes evidence consisted of proof of petitioner Sisca's 1973
conviction for conspiracy to distribute narcotics and testimony about
a 1968 sale to petitioners of a trailer load of stolen quinine, a
substance used to dilute heroin.

   a. Petitioner Sisca's 1973 narcotics conviction was plainly
admissible to prove Sisca's intent in dealing with Ruggiero and
Carneglia and his knowledge that they were in the business of
distributing heroin.  The issues of intent and knowledge were clearly
in dispute.  Sisca's counsel in his opening statement admitted that
Sisca was friendly with Ruggiero but contended that he was not engaged
with him in heroin distribution.  Counsel argued that "you cannot
taint by mere association." C.A. Supp. App. 436.  In his summation,
Sisca's counsel expanded upon that theme.  He argued that "(Sisca) is
now a perfect subject to this prosecution because he called Angelo
Ruggiero, had something to do with him.  But you must be satisfied
beyond a reasonable doubt that that something to do with him was the
transaction involving narcotics." Id. at 281-282.  Counsel then
concluded his summation by arguing:  "They've brought you a
suggestion.  They've brought you an association.  They don't like my
client's relationships, but they certainly have not proven that my
client was involved in narcotics transaction." Id. at 283.

   Cases like this one -- where a defendant concedes presence but
insists that there is an innocent explanation for his conduct -- are
paradigm instances in which "other crimes" evidence is admissible to
show intent and knowledge.  Petitioners claim that Sisca's intent and
knowledge were not at issue because Sisca's trial counsel "offered to
stipulate to intent and proposed a jury charge that would eliminate
the issue." Pet. 9.  But the proffered stipulation did not remove
those issues from the case.  As the colloquy made clear, C.A. App.
45-50, the stipulation related only to the issue of Sisca's intent in
dealing with Pasqua;  Sisca's counsel was willing to make that
concession because Sisca denied he had ever sold heroin to Pasqua.
The intent that Sisca's counsel was not willing to concede -- and the
issue to which the 1973 conviction was relevant -- was Sisca's
knowledge and intent in dealing with Ruggiero and Carneglia.  Sisca
admitted that he had associated with Ruggiero, but he claimed
legitimate business dealings as the explanation for their meetings.
As the district court explained in its lengthy ruling allowing the
admission of the evidence regarding the 1973 conviction:

      Through circumstantial evidence, the government intends to show
      that defendants met with Angelo Ruggiero and others at the Patio
      Deli on at least several occasions, and that the purpose of
      these meetings was to negotiate their narcotics transaction.  *
      * *

         The defendants do not intend to deny that such meetings with
      Ruggiero and others never took place.  Rather, they tend (sic)
      to offer proof that the nature of the meetings involved
      legitimate business dealings.  Under Rule 404(b), evidence of
      prior bad acts which tend to undermine a defendant's innocent
      explanation for his act will be admitted.  J. Weinstein and M.
      Berger, Weinstein's Evidence, Paragraph 404(12) at 404-84.
      Here, the government seeks to introduce evidence of Sisca's 1973
      heroin conviction and testimony regarding the alleged 1968 sale
      of stolen quinine to the defendants for precisely the purpose of
      undermining their innocent explanation for their meetings at the
      Patio Deli with Ruggiero.

Pet. App. 6a.  The district court's decision to admit the evidence was
thus well within its discretion.

   The incompleteness of the stipulation proposed by Sisca's counsel
belies petitioner's claim his 1973 conviction would not have been
admissible if he had been tried in the Second Circuit rather than the
Third Circuit.  In United States v. Figueroa, 618 F.2d 934 (1980), the
Second Circuit held that it was error to admit prior crimes evidence
because the defendant had removed the issue of intent from the case.
The defendant there had claimed that the testimony implicating him in
a narcotics transaction was entirely fabricated -- that the entire
drug transaction the government witness had recounted never occurred.
A similar defense was involved in the other cases cited by
petitioners.  /1/ In this case, in contrast, Sisca admitted his
association with Ruggiero but maintained that it was innocent.  Thus,
the district court correctly admitted Sisca's 1973 narcotics
conviction because it tended to show that Sisca knew of Ruggiero and
Carneglia's heroin trafficking and that Sisca intended to participate
in it, an issue that Sisca sharply disputed at trial.  The district
court's admission of other crimes evidence is therefore entirely
consistent with case law in the Second Circuit.  See, e.g., United
States v. Ramirez-Amaya, 812 F.2d 813, 817 (1987);  United States v.
Martino, 759 F.2d 998, 1005 (1985);  United States v. Williams, 577
F.2d 188, 192, cert. denied, 439 U.S. 868 (1978).  Cf., e.g., United
States v. Zolicoffer, 869 F.2d 771, 773 (3d Cir.), cert. denied, 109
S. Ct. 3172 (1989);  United States v. Dansker, 537 F.2d 40, 58 (3d
Cir. 1976), cert. denied, 429 U.S. 1038 (1977).  This case therefore
presents no occasion to consider the validity of the Third Circuit's
rule that a defendant may not prevent the admission of other crimes
evidence under Rule 404(b) merely by stipulating to the issue on which
it would be relevant.  United States v. Schwartz, 790 F.2d 1059, 1061
(1986).  Whatever difference there may be among the circuits about how
intent may be removed as an issue for purposes of Rule 404(b), that
conflict is not implicated in this case, as the outcome here did not
depend on any difference between the approaches employed by the Second
and Third Circuits.  /2/

   b. Petitioner Squittieri claims that the 1968 quinine sale should
not have been admitted against him because the evidence was
insufficient to show that he was actually involved in that
transaction.  Pet. 14.  But Squittieri never denies -- and in fact
there was no dispute -- that Squittieri was present when the sale of
quinine was negotiated between Sisca and Pasqua.  Squittieri's
presence was properly admitted as evidence of the parties' familiarity
with one another and the basis for a relationship of trust between
Pasqua and Squittieri.  United States v. Traitz, 871 F.2d 368 (3d Cir.
1989);  United States v. Kalaydjian, 784 F.2d 53, 56 n.3 (3d Cir.
1986).  It was for this limited purpose that the district court
admitted the 1968 quinine sale, and it was on this theory that the
district court charged the jury.  C.A. App. 886.

   2. Petitioners claim that the district court erred in admitting
tape recordings of intercepted conversations over their objection that
the government failed properly to authenticate the recordings.  Pet.
15-18.  They contend that the courts of appeals are divided on the
correct standard for authentication under Fed. R. Evid. 901(a), and
that this Court should review this case to resolve the conflict.

   Petitioners are incorrect in asserting that the courts of appeals
have applied different standards in authenticating tape-recorded
evidence.  It is true that several circuits have held that the
government must prove the authenticity of electronic surveillance
evidence by "clear and convincing evidence." /3/ For example, in
United States v. Fuentes, 563 F.2d 527, cert. denied, 434 U.S. 959
(1977), the Second Circuit decided that because "recorded evidence is
likely to have a strong impression upon a jury and is susceptible to
alteration," the government must introduce "clear and convincing"
evidence of authenticity as a foundation for the admission of such
evidence.  563 F.2d at 532.  Contrary to petitioner's contention, the
Third Circuit also applies the "clear and convincing evidence"
standard to the authentication of tape-recorded evidence.  United
States v. Inadi, 748 F.2d 812, 816 (1984), rev'd on other grounds, 475
U.S. 387 (1986);  United States v. Starks, 515 F.2d 112, 121 (1975),
aff'd in part and rev'd in part on other grounds, 431 U.S. 651 (1977).
 Petitioners contend that the Third Circuit uses a more lenient
standard, but that contention rests entirely on United States v.
Jackson, 649 F.2d 967, 973, cert. denied, 454 U.S. 1034 (1981).  As
petitioners themselves acknowledge, Pet. 15-16, Jackson concerned the
standard for establishing the chain of custody for the admission of
contraband;  it does not speak to the supposedly more rigorous
standard required for authenticating tape-recorded evidence.  Thus,
there is no conflict among the circuits on the precise issue presented
here.  Although the Third Circuit wrote no opinion in this case,
petitioners presumably received the benefits of the Third Circuit's
"clear and convincing evidence" standard when the Third Circuit
reviewed their convictions, and the government's proof of
authentication presumably was found to satisfy that standard.

   While the courts of appeals have adopted a "clear and convincing
evidence" standard, we submit that the proper test is the one
indicated by Fed. R. Evid. 901(a) -- whether the evidence was
sufficient to support a finding by the jury that the tape recordings
are authentic.  That was, in essence, the standard applied by the
district court in this case, Pet. App. 11a, and we believe that that
standard, rather than the "clear and convincing evidence" standard,
correctly applies the Rules of Evidence to the authentication question
at issue here.

   The "clear and convincing evidence" standard originated in United
States v. Knohl, 379 F.2d 427 (2d Cir. 1967), a case decided before
the Federal Rules of Evidence were adopted in 1975.  Those cases that
have applied the "clear and convincing evidence" standard since the
Federal Rules of Evidence became effective have not cited or analyzed
Rule 901(a).  That rule, which governs questions of authentication,
provides that evidence may be admitted if the evidence is "sufficient
to support a finding that the matter in question is what its proponent
claims." The standard set forth in Rule 901(a) requires only that the
court conclude that the jury could find by a preponderance of the
evidence that the evidence is authentic.  See 5 J. Weinstein & M.
Berger, Weinstein's Evidence Paragraph 901(a)(01), at 901-17 to 901-18
& n.8 (1989).  Because authentication questions under Rule 901(a)
present issues of conditional relevance, Rule 901(a) rulings are
governed by the procedure set forth in Rule 104(b).  See Notes of
Advisory Committee to Rule 901, 28 U.S.C. App. at 737.  Rule 104(b),
in turn, provides that a court must admit conditionally relevant
evidence if the jury could find the condition satisfied by a
preponderance of the evidence.  This Court made that point clear
recently in Huddleston v. United States, 108 S. Ct. 1496 (1988):

      In determining whether the Government has introduced sufficient
      evidence to meet Rule 104(b), the trial court neither weighs
      credibility nor makes a finding that the Government has proved
      the conditional fact by a preponderance of the evidence.  The
      court simply examines all the evidence in the case and decides
      whether the jury could reasonably find the conditional fact * *
      * by a preponderance of the evidence.

Id. at 1501.  Accordingly, the interaction of Rules 901(a) and 104(b)
make it plain that the "clear and convincing evidence" standard has no
role to play in deciding questions of authentication under the Federal
Rules of Evidence.

   Because the courts that have employed the "clear and convincing
evidence" standard have not adverted to Rule 901(a) or the
"preponderance" standard that this Court in Huddleston held applicable
to issues of conditional relevance, review of the question presented
in this case would be premature at this time.  Before the issue
becomes ripe for this Court's review, the courts of appeals should be
given the opportunity to reconsider the standard of proof required to
authenticate tape-recorded evidence in light of Rule 901(a) and this
Court's decision in Huddleston.

   In addition, it is doubtful that a difference in the standard of
proof would produce different outcomes in many cases.  Of the many
reported cases in which tape-recorded evidence was offered against a
challenge to its authenticity, virtually none have rejected the
admission of the evidence, regardless of the test employed.  /4/ Thus
it appears to make little or no difference what standard is used to
test the quality of the authentication.  There are so few cases in
which authentication is truly disputed that the standard applied to
the inquiry is seldom more than an academic concern.

   This case provides a good illustration of the unimportance of the
standard used in making authentication rulings, for even if the
district court had applied the "clear and convincing evidence"
standard here, the government's proof plainly would have satisfied
that test.  The government presented substantial evidence concerning
the chain of custody of the tapes, offering testimony with respect to
every significant link in the chain.  Agent Noon, one of the
monitoring agents, testified that he personally saw that the tapes
were safely transported to the Brooklyn-Queens office of the FBI,
where the tapes were logged in, placed in custody envelopes, and then
locked in a cabinet.  Pet. App. 13a-14a.  Agent Ticano testified that
he would unlock the cabinet at 5 a.m. each weekday and accept formal
custody of the tapes, completing in each case an administrative review
to ensure that the tapes were properly labeled, dated, signed by the
monitoring agents, and placed in the appropriate custody envelopes.
Agent Ticano would then deposit the tapes in a locked filing cabinet
in the supervising agent's office;  Ticano was the only person with a
key to that cabinet.  Id. at 14a.  The tapes remained in the locked
filing cabinet until the case agent, Agent McCormick, took them to
court for sealing.  Ibid.; Gov't C.A. Br. 46-47.

   The only deviation from this practice was for a few of the tapes
obtained from the "bug" in Ruggiero's home, which were sent to the FBI
office in New York for enhancement.  The audio technician who
performed the enhancement testified that the tapes were maintained in
a locked cabinet in the audio laboratory;  only two technicians and
their supervisor had keys.  Pet. App. 14a-16a.  After the technicians
enhanced the tapes, they were released to the custody of another FBI
agent who transported them back to the Brooklyn-Queens office.  Agent
Ticano would then accept custody of the tapes and redeposit them in
the locked cabinet.  Id. at 16a.

   Petitioners argue that there were gaps in the chain and flaws in
some of the safekeeping procedures, particularly for the tapes that
were sent to the audio lab for enhancement.  Pet. 17-18.  And they
cite the district court's remarks about the less than exemplary
handling of the Ruggiero tapes.  Pet. App. 15a.  However, the flaws
they complain of pertain primarily to only a small number of the "bug"
tapes out of the 33 telephone recordings and 9 "bug" recordings.
Moreover, the district court found that any gaps in the chain of
custody were not legally significant, and it noted that the law does
not require a flawless chain of custody in order to establish
authenticity.  The evidence submitted in this case was thus sufficient
to satisfy both the "preponderance" and the "clear and convincing
evidence" standards.

   3. Finally, petitioners challenge the district court's admission of
expert testimony, claiming that it went far beyond the established
standards for the admission of such evidence in narcotics cases.  Pet.
19-22.

   The expert witness was Drug Enforcement Agent Gerald Franciosa, a
19-year veteran in drug enforcement, who spent 11 years as an
undercover agent investigating Italian heroin traffickers in New York.
 He testified about eight of the "bug" conversations and certain
records that were seized upon the arrest of Salvatore Greco when he
delivered two kilograms of heroin for Ruggiero to William Cestaro.
See Gov't C.A. Br. 16-17, 53.  Before Franciosa took the stand, the
district court ruled that he could explain some of the terms used by
the speakers and relate one conversation to another, but that he could
not give any opinions based on the conversations as a whole.  C.A.
App. 685-689.

   Petitioners contend that the expert repeatedly exceeded the proper
bounds of expert testimony and that he commented at length about
clearly worded and uncoded conversations that the jurors could
interpret for themselves.  The district court, however, disagreed.  As
the testimony proceeded, the district court noted that the witness
properly remained within the parameters the court had set.  C.A. App.
731-732.  At bottom, therefore, petitioners' argument is no more than
a disagreement with the factual determination by the district court
that the scope of the expert's testimony did not exceed the legal
bounds established under the rules of evidence.  Petitioners claim no
conflict among the courts of appeals on the question of what those
standards are.

   In any event, petitioners did not properly preserve their objection
on this ground at trial.  Trial counsel never objected that the expert
was improperly testifying about clear statements;  rather, the
objections that were made were on the ground that the expert was
"speculating" about the meaning of the phrases.  C.A. App. 731;  see
Gov't C.A. Br. 53-54.  That trial counsel's contemporaneous objection
to the expert's testimony was that the expert was speculating about
the meaning of some words and phrases strongly suggests that the
meaning of the terms on the tapes was not apparent.  Petitioners are
now seeking to reverse field and claim that the expert was improperly
allowed to comment on clear statements.  A brief review of the
conversations about which Franciosa testified confirms that the
conversations were not straightforward and that the expert's testimony
could certainly have been helpful to the jury.  C.A. Supp. App.
198-277.  The admission of this testimony was therefore well within
the wide latitude afforded to the district court to admit expert
testimony under Fed. R. Evid. 702.  See United States v. Nersesian,
824 F.2d 1294, 1308 (2d Cir.), cert. denied, 108 S. Ct. 355 (1987).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S. G. DENNIS, JR.

      Assistant Attorney General

   KATHLEEN A. FELTON

      Attorney

   OCTOBER 1989

   /1/ In United States v. Ortiz, 857 F.2d 900, 904-905 (2d Cir.
1988), cert. denied, 109 S. Ct. 1352 (1989), the court stated that
intent is removed as a disputed issue only if the defendant argues
that the charged conduct did not occur at all;  in that case, the
defendant's alternative argument of lack of intent made the admission
of Rule 404(b) evidence proper.  In United States v. Mohel, 604 F.2d
748, 752 (2d Cir. 1979), as in Figueroa, the defense to a narcotics
charge was that the alleged sale was a total fabrication.  Similarly,
the defendant in United States v. Manafzadeh, 592 F.2d 81, 89 (2d Cir.
1979), argued that he had had nothing to do with the creation of the
fraudulent checks.  The defense to a bribery charge in United States
v. O'Connor, 580 F.2d 38, 41 (2d Cir. 1978), was that the defendant
had never taken money or anything of value from any of the witnesses
who said they had paid him.  And in United States v. Silva, 580 F.2d
144, 148 (5th Cir. 1978), the sole defense was mistaken identity.  In
none of those cases was intent a contested issue at trial.

   /2/ Petitioner Squittieri insists that he was prejudiced by the
introduction of Sisca's prior conviction regardless of the district
court's instruction to consider it only against Sisca, because
Squittieri was consistently portrayed as Sisca's partner.  Pet. 13-14.
 That claim lacks substance.  The district court instructed the jury
at least three times to consider Sisca's conviction against him alone,
and it found that the evidence concerning the two was sufficiently
compartmentalized that the jury would not be confused.  Gov't C.A. Br.
36-37;  C.A. Supp. App. 443.  Moreover, there was no evidence that
Squittieri had anything to do with the events giving rise to Sisca's
1973 conviction, nor was there any evidence that petitioners were
partners before 1981.  Gov't C.A. Br. 36-37.

   /3/ E.g., United States v. Alvarez, 860 F.2d 801, 807 (1988),
modified on other grounds, 868 F.2d 201 (7th Cir.), cert. denied, 109
S. Ct. 1966 (1989);  United States v. Vega, 860 F.2d 779, 788 (7th
Cir. 1988);  United States v. Zambrana, 841 F.2d 1320, 1338-1339 (7th
Cir. 1988);  United States v. Keck, 773 F.2d 759, 766 (7th Cir. 1985);
 United States v. Faurote, 749 F.2d 40, 43 (7th Cir. 1984);  United
States v. Balzano, 687 F.2d 6, 8 (1st Cir. 1982);  United States v.
Cortellesso, 663 F.2d 361, 364 (1st Cir. 1981);  United States v.
Mouton, 617 F.2d 1379, 1383-1384 (9th Cir.), cert. denied, 449 U.S.
860 (1980);  United States v. Blakey, 607 F.2d 779, 787 (7th Cir.
1979);  United States v. King, 587 F.2d 956, 961 (9th Cir. 1978);
United States v. Knohl, 379 F.2d 427 (2d Cir.), cert. denied, 389 U.S.
973 (1967).

   /4/ See, e.g., United States v. Alvarez, 860 F.2d at 808-809;
United States v. Vega, 860 F.2d at 791-792;  United States v. Lance,
853 F.2d 1177, 1181-1182 (5th Cir. 1988);  United States v. O'Connell,
841 F.2d 1408, 1419-1422 (8th Cir.), cert. denied, 108 S. Ct. 2857
(1988);  United States v. Lively, 803 F.2d 1124, 1129 (11th Cir.
1986);  United States v. Carbone, 798 F.2d 21 (1st Cir. 1986);  United
States v. Cook, 794 F.2d 561, 567-568 (10th Cir.), cert. denied, 479
U.S. 889 (1986);  United States v. Risken, 788 F.2d 1361, 1369-1370
(8th Cir.), cert. denied, 479 U.S. 923 (1986);  United States v.
Sarro, 742 F.2d 1286, 1292 (11th Cir. 1984);  United States v. Panas,
738 F.2d 278, 286 (8th Cir. 1984);  United States v. Brown, 692 F.2d
345, 350 (5th Cir. 1982);  United States v. Sutherland, 656 F.2d 1181,
1200-1201 (5th Cir. 1981), cert. denied, 455 U.S. 949 (1982) (error to
find sufficiently authenticated but harmless).