MICKIE JAMES MERIWETHER, PETITIONER V. UNITED STATES OF AMERICA No. 90-7023 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-32) is reported at 914 F.2d 1527. JURISDICTION The judgment of the court of appeals was entered on September 18, 1990. A petition for rehearing was denied on November 6, 1990 (Pet. App. 33). The petition for a writ of certiorari was filed on February 4, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a taped discussion among petitioner's co-conspirators and a confidential informant was properly admitted over a hearsay objection. STATEMENT After a jury trial in the United States District Court for the Eastern District of Missouri, petitioner was convicted of conspiring to distribute cocaine, in violation of 21 U.S.C. 846. He was sentenced to an 87-month prison term, to be followed by a four-year term of supervised release. The court of appeals affirmed. Pet. App. 1-32. 1. Petitioner, who lived in Los Angeles, California, supplied three kilograms of cocaine to co-conspirators from St. Louis, Missouri. The conspiracy came to light when Frank Bennett, an employee of co-conspirator Michael Salsman, agreed to serve as a confidential informant for the FBI and the Internal Revenue Service. With Bennett's cooperation, federal agents monitored and recorded several conversations in St. Louis involving Salsman and other co-conspirators. Pet. App. 3-7. In February 1989, Salsman and others flew from St. Louis to Los Angeles to buy cocaine. Bennett drove to Los Angeles to meet them in a rented Winnebago containing $65,000 of the co-conspirators' money. When the anticipated source of the cocaine fell through, co-conspirator Joseph Haag told Salsman that a friend back in St. Louis had a Los Angeles cocaine connection, who turned out to be petitioner. Haag called his friend, co-conspirator Steven McGirt, and McGirt agreed to fly to Los Angeles to introduce Salsman and the others to petitioner. Pet. App. 5. On February 10, 1989, McGirt, Salsman, and Haag met with petitioner at the Los Angeles airport. The next day, at Salsman's direction, Bennett turned $60,000 over to McGirt, who then went to meet petitioner. Petitioner subsequently delivered the three kilograms of cocaine to Bennett, who took it back to St. Louis. Pet. App. 5-6. Haag arranged a meeting in St. Louis on February 15, 1989, with Salsman, Bennett and others to distribute the cocaine that petitioner had supplied. Federal authorities conducted video and audio surveillance of this meeting. Pet. App. 6, 20-22. In the recorded discussion, Salsman and Haag talked about petitioner's and McGirt's involvement in the California transaction. Pet. App. 6; see also Addendum to Petition. The recording was admitted into evidence over petitioner's hearsay objection. 2. The court of appeals affirmed petitioner's conviction. Pet. App. 1-32. With respect to the only challenge that petitioner renews here, the court upheld the admission of the discussion among Salsman, Haag and Bennett recorded on February 15, 1989. Pet. App. 20-22. The court observed that, under Fed. R. Evid. 801(d)(2)(E), "(s)tatements of co-conspirators are admissible if the government demonstrates (1) that a conspiracy existed, (2) that the defendant and declarant were members of the conspiracy, and (3) that the statements were made during the course of and in furtherance of the conspiracy." Pet. App. 21. The court held that "all three conditions were met" here and accordingly that "(t)he trial court did not commit error in permitting the introduction of the tapes." Ibid. ARGUMENT The court of appeals correctly upheld the admission over petitioner's hearsay objection of a recorded conversation among an informant and petitioner's co-conspirators. That decision does not conflict with the decisions of this Court or of any other court of appeals. Further review is therefore unwarranted. 1. Under Federal Rule of Evidence 801(d)(2)(E), a declaration does not constitute hearsay when a preponderance of the evidence shows that "there was a conspiracy involving the declarant and the (defendant), and that the statement was made during the course and in furtherance of the conspiracy." Bourjaily v. United States, 483 U.S. 171, 175 (1987) (internal quotations omitted). Petitioner does not dispute here his membership in the conspiracy charged, nor that Salsman, McGirt, and Haag were his co-conspirators. See Pet. 12. Instead, petitioner contends that portions of the February 15, 1989, taped conversation involving Salsman, Haag, and Bennett were inadmissible because they included Bennett. That contention is incorrect. The courts of appeals have consistently upheld the admission under Fed. R. Evid. 801(d)(2)(E) of taped conversations between co-conspirators and an informant pretending to be a co-conspirator. /1/ Petitioner nonetheless argues that the portions of the recorded conversation in which Bennett was the "principle declarant" (Pet. 9 n.1) did not carry sufficient "guarantees of truthfulness" (Pet. 11, 12) to warrant admission. The primary flaw in petitioner's argument is that Bennett's side of the conversation was relevant for purposes other than the truth of his statements. See Fed. R. Evid. 801(c) (defining hearsay as including only those statements "offered in evidence to prove the truth of the matter asserted"). As the court explained in United States v. Smith, 918 F.2d 1551, 1559 (11th Cir. 1990), "an informant's statements are admissible not for the truth of the matter asserted, but for the purpose of placing (the conversations involving the informant and co-conspirators) in context for the jury." Accord, e.g., United States v. Byrom, 910 F.2d 725, 737 (11th Cir. 1990); United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988); United States v. Lemonakis, 485 F.2d 941, 948-949 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974). Without Bennett's side of the recorded conversation, the jury could not have placed Haag's and Salsman's statments in context. Those statements undeniably were made by petitioner's co-conspirators during and in furtherance of the conspiracy. Moreover, notwithstanding petitioner's suggestion that Bennett dominated the conversation, Salsman's and Haag's parts in the discussion were significant. While Bennett was the only one present when petitioner delivered the drugs, Salsman and Haag were the ones who initially met McGirt and petitioner at the airport. Furthermore, Salsman and Haag introduced Bennett to petitioner. Thus, their statements and questions to Bennett regarding petitioner's role in the transaction were relevant in corroborating Bennett's in-court testimony. Finally, petitioner was not prejudiced by admission of Bennett's side of the recorded discussion, because Bennett testified at trial and was subject to full cross-examination. Cf. United States v. Tille, 729 F.2d 615, 620 (9th Cir.), cert. denied, 469 U.S. 845 (1984). Indeed, given the extensive efforts by defense counsel to impeach Bennett's trial testimony on cross-examination, Bennett's prior statements could have been admitted to rebut any suggestion that his in-court testimony was a recent fabrication or the product of improper influence or motive. Fed. R. Evid. 801(d)(1)(B) (prior out-of-court statement by trial witness is not hearsay where it is "consistent with (witness's) testimony and is offered to rebut an express or implied charge against the (witness) of recent fabrication or improper influence or motive"). 2. The decision below does not conflict with any of the cases cited by petitioner (Pet. 10-11). United States v. Felton, 908 F.2d 186, 188 & n.3 (7th Cir. 1990), concerned a statement by a confidential informant to a DEA agent; since neither party in Felton was a co-conspirator, that decision is plainly inapposite. Likewise inapposite are United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir.), cert. denied, 109 S. Ct. 3227 (1989), and United States v. Mouzin, 785 F.2d 682 (9th Cir.), cert. denied, 479 U.S. 985 (1986). In each of those cases, a statement was deemed inadmissible because the government failed to identify who made the statement. United States v. Rivera-Santiago, 872 F.2d at 1085; United States v. Felton, 785 F.2d at 691-693. Neither case involved a discussion between co-conspirators shown to be acting in furtherance of the conspiracy and a confidential informant, as did the present case. For the same reason, Monarch Insurance Co. v. Insurance Corp. of Ireland Ltd., 835 F.2d 32, 35 (2d Cir. 1987), is inapplicable here. That case simply held that a trial court did not abuse its discretion when it excluded statements on the grounds that no conspiracy was shown to exist. Ibid. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SEAN CONNELLY Attorney APRIL 1991 /1/ E.g., United States v. Smith, 918 F.2d 1551, 1558-1559 (11th Cir. 1990); United States v. Jones, 839 F.2d 1041, 1051-1052 (5th Cir.) cert. denied, 486 U.S. 1024 (1988); United States v. Tille, 729 F.2d 615, 620-621 (9th Cir.), cert. denied, 469 U.S. 845 (1984). Likewise, conversations between an informant posing as a co-conspirator and the defendant have been admitted. United States v. Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988); United States v. Lemonakis, 485 F.2d 941, 948 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974).