739 F.

2d 838
15 Fed. R. Evid. Serv. 929

UNITED STATES of America

v.
GIBBS, Stephen a/k/a "Jake," Appellant.
No. 82-1096.

United States Court of Appeals,

Third Circuit.
Argued Sept. 14, 1982.
Panel Opinion Filed March 22, 1983.
Vacated and Rehearing En Banc
Granted May 19, 1983.
Reargued In Banc Nov. 21, 1983.
Decided June 15, 1984.
As Amended June 19, 1984.

Martin G. Weinberg (argued), Lillian A. Wilmore, Oteri, Weinberg &

Lawson, Boston, Mass., Thomas A. Bergstrom, Philadelphia, Pa., for
appellant.
Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty.,
Chief of Appeals, Robert L. Hickok (argued), Sp. Asst. U.S. Atty.,
Philadelphia, Pa., for appellee.
Before SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS,
HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER,
Circuit Judges, and ROSENN, Senior Circuit Judge.
OPINION OF THE COURT
GARTH, Circuit Judge.

Defendant Stephen Gibbs was convicted after a jury trial in the United States
District Court for the Eastern District of Pennsylvania of conspiracy to
distribute marijuana in violation of 21 U.S.C. Sec. 846 (1976). The conviction
was based primarily on statements made by a co-conspirator, Joseph

Quintiliano, that were admitted into evidence against Gibbs under Fed.R.Evid.
801(d)(2)(E), which creates a category of non-hearsay for co-conspirators'
admissions.
2

On appeal to a panel of this court, Gibbs argued that (1) the prerequisites for
the admission into evidence of co-conspirator testimony were not satisfied, and
that (2) the introduction of that evidence violated his sixth amendment right to
confront and cross-examine the witnesses against him. We hold that the
challenged testimony was properly admitted under Fed.R.Evid. 801(d)(2)(E)
and we also hold that Gibbs' sixth amendment confrontation issue was not
adequately preserved for appeal. Thus, we affirm the judgment of conviction
entered below.

I.
3

Stephen Gibbs was one of six persons indicted for conspiracy to violate federal
narcotics laws.1 At his trial, Gibbs did not dispute that in 1980 Joseph
Quintiliano and several others participated in a conspiracy to import marijuana
into the United States with the intent to distribute it for sale. Rather, Gibbs'
defense was that there was insufficient evidence of his own participation in the
conspiracy.

The existence of the conspiracy was firmly established at trial. The evidence
showed that early in 1980, Quintiliano began to make plans to import marijuana
into Pennsylvania from Colombia, South America. In late March, he purchased
a Beechcraft twin-engine airplane for $40,000. According to the testimony of
two unindicted co-conspirators, Charles Bilella and David White,2 Quintiliano
stated on several occasions in late March and early April that he intended to use
the airplane to transport marijuana from Colombia into Pennsylvania. From
April to September 1980, Quintiliano and the other conspirators made efforts to
repair and equip the plane for smuggling. In late September, after several test
flights, pilot Prentiss Breland3 flew the plane from Pennsylvania to Homestead,
Florida. On October 4, Breland flew the plane from Florida to Colombia. Upon
his return trip to Pennsylvania in the early morning hours of October 5, Breland
missed a planned refueling stop in the Bahamas and was forced to land at Boca
Raton, Florida, to refuel. A few hours later Breland was arrested at the Florida
airport and the plane, containing marijuana worth over $400,000, was seized.4

The Government prosecuted Gibbs on the theory that he participated in the

conspiracy as the intended purchaser of the marijuana. The evidence linking
Gibbs to the conspiracy fell into three categories. First, the Government
established that on April 7, 1980, Gibbs traveled from his home in

Massachusetts to Quakertown, Pennsylvania, for a meeting with Quintiliano.

Gibbs flew to Philadelphia and was met there by David White, who then flew
him to meet Quintiliano at Wings Airfield in Montgomery County,
Pennsylvania. Surveillance officers testified that Quintiliano greeted Gibbs at
Wings Airfield and drove him to the Perkins Pancake House, the site of other
conspiracy meetings, where they conversed privately. Quintiliano and Gibbs
then proceeded to Quakertown Airport where the Beechcraft was located, and
together they inspected the airplane for several minutes. Upon leaving the
airport, they were followed by Pennsylvania state troopers who observed that
the people in the vehicle (Quintiliano and Gibbs) were looking around to see if
someone was following them and that Quintiliano engaged in several driving
maneuvers that the officers testified were designed to evade surveillance, i.e., a
brief pull-off into a hotel area, followed by a resumption of travel in the same
direction, and then, after further "looks" by the driver and passenger, a U-turn
to proceed in the direction from which they had come.
6

The second category of evidence upon which the Government relied, and in fact
the principal evidence offered against Gibbs, was derived from statements
made by Quintiliano that implicated Gibbs in the conspiracy. Bilella and White
testified that in the spring of 1980, around the time Quintiliano purchased the
Beechcraft and began to repair it, Quintiliano stated that he planned to sell the
marijuana to a customer named "Jake" with whom he had dealt before. On
April 6, 1980, the day before Gibbs' visit to the Quakertown airport,
Quintiliano told White that "Jake" was growing impatient with the slow
progress of the planning, and that Quintiliano had invited "Jake" to come for a
visit the next day (i.e., April 7, 1980) to see firsthand the preparations for the
Colombia trip. White volunteered to meet "Jake" at the Philadelphia airport and
to take him to Wings Airfield to meet with Quintiliano. White testified that the
following day he went to Philadelphia and met defendant Gibbs, who identified
himself as "Jake" and matched the description of "Jake" given by Quintiliano.
Gibbs told White that he had been informed of the arrangements for White to
meet him in Philadelphia.

Bilella also testified to an out-of-court statement by Quintiliano. According to

Bilella, sometime during the first week in October, Quintiliano told him that he
had made arrangements to sell the marijuana to some people from Florida who
had offered more money than "Jake." (Gibbs argues that this testimony
indicates that he, Gibbs, had dropped out of the conspiracy.)

White and Bilella also testified to a series of events that took place at
Quintiliano's home on the evening of October 4, 1980, including statements by
Quintiliano concerning telephone conversations that incriminated Gibbs in the

conspiracy. Bilella testified that while he was in Quintiliano's home early that
evening, he heard Rizo and Quintiliano discussing financial arrangements for
the sale of the marijuana to the people from Florida, who were staying nearby.
Quintiliano apparently became dissatisfied with these terms because the
prospective buyers were unable to pay cash in advance. Quintiliano stated that
he had telephoned "Jake" to see if he would buy the marijuana, and that "Jake"
had agreed to "try to make the necessary arrangements."5
9

White testified that while at his own home that evening, he received a
telephone call from Quintiliano asking him to come to Quintiliano's residence.
When White arrived about 10:45 p.m., Quintiliano apprised him of the
developments earlier in the evening. Quintiliano described to White three
telephone conversations he had had with his Miami bosses, who had instructed
Quintiliano not to distribute the marijuana without receiving full payment.6
White also testified regarding Quintiliano's account of a telephone call to "Jake"
in which "Jake" reportedly had agreed to buy the marijuana but needed time to
obtain the necessary funds.7 These conversations between White and
Quintiliano took place in Rizo's presence. White further testified that he heard
Quintiliano instruct his brother Jerry to call "Jake" from a pay phone.
Quintiliano asked White for permission to store the marijuana temporarily in
his shop until "Jake" could get the money, and at about 12:30 a.m. on October
5, 1980, White, Quintiliano, and other conspirators met at White's shop to clear
storage space for the marijuana.

10

The third category of evidence by which the Government sought to link Gibbs
to the conspiracy and to corroborate the co-conspirator testimony consisted of
telephone records showing long distance calls made from the Quintiliano
residence in Pennsylvania. At least six telephone calls were made from
Quintiliano's residence to the Gibbs residence in Massachusetts between March
and May 1980.8 Four such calls were made during September 1980, three of
which occurred on September 26-27, about the time Breland flew the plane to
Florida. Another call was made on October 3, 1980, the day before the plane
left for Colombia. In addition, two calls were made from the Quintiliano
residence to the Gibbs residence in the early morning hours of October 5, at the
time the plane was due in Quakertown. The second such call, made at 3:39
a.m., followed a call from Quintiliano to David White, who was waiting at
Quakertown Airport, in which Quintiliano told White that something had gone
wrong with Breland's flight home.

11

There also was evidence of telephone calls on October 4, 1980, from

Quintiliano's residence to the Ram Broadcast Co. (Ram), an electronic beeper
service located near Gibbs' home in Massachusetts.9 Although there was no

direct evidence that the defendant was a client of Ram, the Government did
demonstrate that one of Ram's customers was a "Gibbs Oil Co." and that Gibbs
himself had claimed to be involved in the oil business. There was no evidence
that these calls to Ram were returned.
12

On appeal, Gibbs contends that the district court erred in allowing the jury to
consider the statements made by Quintiliano to White and Bilella as evidence
against Gibbs. He maintains that Quintiliano's out-of-court statements were
hearsay declarations that should have been excluded from admission under the
Federal Rules of Evidence and under the Confrontation Clause of the sixth
amendment to the Constitution.

II.
13

Under the Federal Rules of Evidence, the out-of-court statements of a party to

the case or of his agent are considered "admissions"--non-hearsay10--and may
be used as substantive evidence. See Fed.R.Evid. 801(d)(2). Rule 801(d)(2)(E)
provides that statements offered against a party that are made "by a coconspirator of a party during the course and in furtherance of the conspiracy"
are not hearsay and are admissible. In this case, the district court found that
Quintiliano's out-of-court statements were admissible against Gibbs as coconspirator admissions.

14

Before an out-of-court statement can be admitted into evidence under

Fed.R.Evid. 801(d)(2)(E), three requirements must be satisfied. United States v.
Ammar, 714 F.2d 238, 245 (3d cir.), cert. denied, --- U.S. ----, 104 S.Ct. 344, 78
L.Ed.2d 311 (1983). First, there must be independent evidence establishing that
the person against whom the statement is offered participated in the conspiracy.
Second, the statement must have been in furtherance of the conspiracy. Third,
the co-conspirator's statement must have been made during the life of the
conspiracy. Gibbs contends that the first and second prerequisites are not met in
this case.
A. Independent Evidence of Conspiracy

15

According to the rule of United States v. Trotter, 529 F.2d 806 (3d Cir.1976),
the prosecution must lay a foundation for the admission of co-conspirator
testimony by establishing the existence of a conspiracy including the defendant
by "a fair preponderance of independent evidence." Id. at 811-13. See Ammar,
714 F.2d at 246 & n. 3.; Government of the Virgin Islands v. Dowling, 633
F.2d 660, 665 (3d Cir.), cert. denied, 449 U.S. 960, 101 S.Ct. 374, 66 L.Ed.2d

228 (1980); United States v. Continental Group, Inc., 603 F.2d 444, 457 (3d
Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980).11
This preponderance standard simply requires the prosecution to present
sufficient proof so that the trial judge may find "that the existence of the
contested fact is more probable than its nonexistence." Trotter, supra, 529 F.2d
at 812 n. 8 (quoting McCormick, Evidence 794 (2d ed. 1972)).12 In reviewing
the district court's determination that a preponderance of independent evidence
established Gibbs' participation in the conspiracy, this court's inquiry is limited
to whether the trial judge had "reasonable grounds" to make his finding.
Ammar, 714 F.2d at 249; Continental Group, 603 F.2d at 460; United States v.
Bey, 437 F.2d 188, 196 (3d Cir.1971).
16

In holding that the district court did not err in finding that the conspiracy
existed and that Gibbs participated in the conspiracy we do not consider the
alleged telephone conversations between Quintiliano and Gibbs to which White
and Bilella testified.13 The existence of a conspiracy in this case is clear and
uncontested. As for Gibbs' participation in the conspiracy, the independent
evidence (i.e., evidence apart from the testimony of White and Bilella) offered
by the Government to prove that Gibbs was a member of the conspiracy, while
not weighty, was nevertheless sufficient. The Government relied heavily on
Gibbs' visit to Pennsylvania in April 1980 and on telephone records showing
calls made from Quintiliano's residence to Gibbs' residence or Ram Broadcast
Co. around the time of the unsuccessful smuggling operation.

17

The circumstances surrounding Gibbs' April 7, 1980, visit to see Quintiliano,

the principal conspirator, provides some evidence that Gibbs was involved in
Quintiliano's scheme at that time. The meeting took place only nine days after
Quintiliano bought an airplane to be used for smuggling marijuana into the
United States, and it took Gibbs a considerable distance from home to the place
of the conspiratorial planning. Gibbs and Quintiliano had obviously had some
communication prior to the visit. Although the plane was located at
Quakertown Airport, White was instructed by Quintiliano to take Gibbs to
Wings Airfield,14 from which the Government suggests an inference can be
drawn that Gibbs and Quintiliano wanted to hide their connection with the
smuggling plane located at Quakertown Airport.15 Gibbs and Quintiliano
conferred at the Perkins Pancake House, the site of previous conversations
between Quintiliano and White and Bilella concerning the conspiracy. The
defendant and Quintiliano then proceeded to Quakertown Airport, where they
inspected the plane to be used in the smuggling operation. Finally, evidence of
Quintiliano's evasive driving after leaving Quakertown Airport accompanied by
his passenger Gibbs, and the frequent glances by both Quintiliano and Gibbs
for the apparent purpose of detecting surveillance allows the further inference

of unlawful activity. See United States v. D'Amato, 493 F.2d 359, 364-65 (2d
Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 43, 42 L.Ed.2d 50 (1974) (countersurveillance driving indicative of conspiracy).
18

We recognize that at that point in the trial the evidence of Gibbs' contacts with
Quintiliano may have fallen short of establishing Gibbs' involvement in the
conspiracy beyond a reasonable doubt. But that is not the appropriate standard
to be applied at that stage. The evidence, as recounted above, permits a
reasonable inference of Gibbs' complicity in the enterprise then under way. We
cannot say that the district court lacked reasonable grounds to infer that Gibbs
was participating in the conspiracy at the time of his visit.16

19

Because most of the co-conspirator declarations offered by the Government

were made six months after Gibbs' April 7, 1980, visit to Pennsylvania, we
must consider whether there was sufficient independent evidence from which
the district court reasonably could have inferred that Gibbs was still involved in
the conspiracy in October 1980. The Government, in seeking to demonstrate
the necessary predicate for admission of Quintiliano's co-conspirator
declarations, relied on a presumption that Gibbs' membership in the conspiracy
continued until October 1980.17

20

This court has held that once the Government establishes a defendant's
involvement in an ongoing conspiracy, the burden shifts to the defendant to
prove by affirmative acts inconsistent with the object of the conspiracy that he
withdrew.18 Ammar, 714 F.2d at 254; United States v. Steele, 685 F.2d 793,
803-04 (3d Cir.1982), cert. denied, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d
170 (1983); United States v. Gillen, 599 F.2d 541, 548 (3d Cir.), cert. denied,
444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979).19 Because there is no
evidence that Gibbs withdrew from the conspiracy after April, his involvement
may be deemed to have continued until October,20 making him a conspirator at
the time of Quintiliano's incriminating statements to White and Bilella on
October 4 and 5, 1980. Therefore, we conclude that the district court did not err
in its determination that the Government met its burden of establishing by a
preponderance of independent evidence that Gibbs was involved in the
conspiracy at the time of Quintiliano's statements.
B. "In Furtherance" of the Conspiracy

21

Gibbs argues that the Government did not satisfy the requirement of
Fed.R.Evid. 801(d)(2)(E) that the statements be made in furtherance of the
conspiracy. Gibbs claims that Quintiliano's statements to White and Bilella

were mere "narratives of past fact" and not made to induce conduct that would
further the goals of the conspiracy, and that White and Bilella were mere
"errand runners."
22

Gibbs' argument is meritless. The "in furtherance" requirement is usually given

a broad interpretation. See United States v. Trotter, supra, 529 F.2d at 813. It is
true that statements made to those who are not involved in the conspiracy are
not "in furtherance" of it, United States v. Provenzano, 620 F.2d 985, 1000-01
(3d Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1980), just
as casual conversation between co-conspirators that is not intended to induce
continued involvement, or other actions that would not advance the conspiracy,
are not "in furtherance" of a conspiracy. See, e.g., United States v. Lieberman,
637 F.2d 95, 103 (2d Cir.1980); United States v. Eubanks, 591 F.2d 513, 52021 (9th Cir.1979). But statements made by one conspirator to keep other
conspirators informed about the progress of the scheme do satisfy the "in
furtherance" requirement. See, e.g., Ammar, 714 F.2d at 252; United States v.
Pool, 660 F.2d 547, 562 (5th Cir.1981); United States v. Mason, 658 F.2d
1263, 1270 (9th Cir.1981).

23

In the present case, there was a reasonable basis for the trial court to find that
Quintiliano's statements to Bilella and White were made in furtherance of the
conspiracy. As participants in the scheme, it was important for White and
Bilella to be kept abreast of developments to induce their continued
participation and allay any fear they might have had. Although neither White
nor Bilella had any decision-making role or any real interest in the identity of
the buyer, they both had been closely involved in the planning and
implementation of the conspiracy. White had picked up Gibbs at the
Philadelphia Airport and brought him to the conference rendezvous with
Quintiliano in April, and had also agreed to help unload the marijuana when
the plane arrived. Quintiliano, who specifically had asked White to come to his
home for a talk, may have foreseen that he would be requesting White's
cooperation in storing the marijuana temporarily. Although Bilella at that time
had no specific duties with respect to the conspiracy, he had repeatedly
rendered assistance to Quintiliano; he had at Quintiliano's request found the
Beechcraft plane for purchase and had introduced him to White, an experienced
pilot. Quintiliano also may have felt that he would need Bilella's help in the
future. Under these circumstances, Quintiliano's reports to White and Bilella
did further the conspratorial scheme.

24

This case is distinguishable from United States v. Provenzano, supra, where the
co-conspirator's statements were held not to be in furtherance of the conspiracy.
Contrary to the circumstances of the instant case where all the statements were

made to co-conspirators, in Provenzano, the statements were made to persons

not part of the conspiracy who had no reason to know about the matters
disclosed to them.
25

We conclude that the Government satisfied its burden of laying the necessary
foundation for admission of Quintiliano's co-conspirator statements against
Gibbs under Fed.R.Evid. 801(d)(2)(E). It remains for us to consider Gibbs'
contention that his constitutional rights under the sixth amendment
Confrontation Clause were violated.

III.
26

The sixth amendment guarantees that "[i]n all criminal prosecutions, the
accused shall enjoy the right ... to be confronted with the witnesses against
him." Gibbs contends on appeal that the admission of out-of-court statements
made by Quintiliano on October 4 and 5, 1980, had the effect of denying Gibbs
his constitutional right to confront and cross-examine his accuser. Gibbs argues
that under the rule of Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531,
2538-39, 65 L.Ed.2d 597 (1980), which examined the bounds of the sixth
amendment, the Government was required to prove that the declarant,
Quintiliano, was unavailable, and that the co-conspirator evidence was
reliable,21 before any such testimony could be admitted into evidence. We
recognize that no exact equation exists between Fed.R.Evid. 801 and the
Confrontation Clause, see Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218,
27 L.Ed.2d 213 (1970); Ammar, 714 F.2d at 254-55, thereby raising the
possibility that evidence that satisfies Fed.R.Evid. 801(d)(2)(E) could still be
deemed inadmissible under the constitutional test. Gibbs has argued that
unavailability must be demonstrated and that the Government has the burden of
establishing unavailability. However, we have no occasion to discuss or to
reach the merits of that issue in this case, i.e., whether unavailability must be
shown to satisfy the Confrontation Clause where a co-conspirator statement is
sought to be admitted. Even if we were to assume that unavailability had to be
demonstrated, Gibbs did not preserve that question for appeal.

27

The Confrontation Clause issue now raised by Gibbs--i.e., that the Government
did not carry its burden of proof as to unavailability and reliability of the
evidence (see note 21 supra )--was never raised by Gibbs during trial. Had
Gibbs, by a specific objection, timely made, alerted the Government and the
district court to the fact that no proof of unavailability had been presented by
the Government, that deficiency could have been cured. But because Gibbs did
not preserve that issue for appeal, it cannot serve now as a basis to reverse
Gibbs' conviction.

A.
28

The evidence against Gibbs, the ostensible purchaser in a conspiracy to import

and distribute a large quantity of marijuana, consisted in significant part of the
testimony of Bilella and White, two unindicted co-conspirators, who testified to
a number of hearsay declarations by Quintiliano (the alleged chief conspirator,
who did not testify at trial) to the effect that Quintiliano planned to sell the
marijuana to a customer named "Jake" (Gibbs).

29

At no time during the Government's case-in-chief, however, did Gibbs object to

any of Quintiliano's hearsay declarations on Confrontation Clause grounds.
Rather, Gibbs' counsel asserted that under the co-conspirator rule, Fed.R.Evid.
801(d)(2)(E), Quintiliano's out-of-court declarations were inadmissible because
the Government had not established, by independent evidence, either the
existence of a conspiracy or Gibbs' involvement in the conspiracy. During
White's testimony, for example, the following exchange transpired:

30 Mr. White, did Joseph Quintiliano ever mention to you potential buyers for the
Q.
marijuana?
31

MR. BERGSTROM: Objection.

32

It is hearsay, Your Honor, and there is no proof aliunde of a conspiracy at this

point in the case.

33

THE COURT: Well, that we do not find persuasive.

34

We will permit the question.

35

App. at 43a. Counsel later obtained a standing objection to White's repetition of

Quintiliano's out-of-court declarations. Id. at 55a.

36

Similarly, during Bilella's testimony the following exchange took place:

Q. Now, you mentioned someone by the name of "Jake."

37
38

Who was it that told you about "Jake"?

A. Well, Joe had mentioned a fellow named-39

40

MR. BERGSTROM: Objection--it is hearsay, Your Honor, for the record, sir.

40

MR. BERGSTROM: Objection--it is hearsay, Your Honor, for the record, sir.

41

THE COURT: Your response, Mr. Huyett.

42

MR. HUYETT: Yes, sir.

43

It is a co-conspirator statement.

44

THE COURT: Yes.

45

The witness may [answer] the question if he understands it.

46

App. 248a.

47

At this juncture, Gibbs did not question, and consequently the Government had
no obligation to answer, whether the introduction of Quintiliano's declarations
would violate the Confrontation Clause--much less that the Confrontation
Clause would require a showing of unavailability. Thus, it is not surprising that
the question of who bore the burden of establishing Quintiliano's unavailability,
and the concomitant factual question as to whether Quintiliano was unavailable,
never arose. Certainly Gibbs never raised any such issue. And because Rule
80122--unlike Fed.R.Evid. 80423--does not require a showing of unavailability,
the subject of Quintiliano's availability never became an issue, and thus never
became part of the record.

48

On November 27, 1981, the Government rested. App. 442a. Gibbs then moved,
pursuant to Fed.R.Crim.P. 29(a), for a judgment of acquittal. At the same time,
counsel for Gibbs stated that "it would probably be necessary for me also to
make a motion to the Court to ... strike all of the hearsay co-conspirator
declarations from the record." App. 448a. Gibbs renewed at this stage the
argument, raised in his Memorandum of Law and by his trial objections
referring to Fed.R.Evid. 801, that the Government failed to establish "a
conspiracy by a clear preponderance of the evidence independent of the coconspirator statement and the participation of the defendant, Gibbs, in that
conspiracy ...." Id.

49

In addition, for the first time Gibbs observed "yet another problem." App. 452a.
"Aside from [Rule] 801(d)(2)(E)," Gibbs argued, "there is a clear Sixth
Amendment problem in this case." Id. Noting that the co-conspirator hearsay
rule "does not subsume and take the place of the Sixth Amendment right to
confrontation," Gibbs asserted that the "Sixth Amendment right and Rule

801(d)(2) are going to come smashing head on into one another ... in this case."
Id. at 452a-53a. The essence of Gibbs' sixth amendment objection is captured
by the following passage:
50

The [men] who should have been on that witness stand and whom I should
have been able to cross-examine [were] Joe Quintiliano [and his brother] Jerry
Quintiliano, the declarant[s] of the hearsay statement[s], and I have been denied
through this case the right to confront and cross-examin[e] [those] who really
are the ultimate accusers in this case ... --that being Joseph and Jerry
Quintiliano.

51

App. 453a.

52

At no time during these remarks, however, did Gibbs assert that Quintiliano
was in fact available, or that the Government had the burden of showing
unavailability and had not carried this burden. As a consequence, neither the
Government nor the district court was alerted to the nature of the issue upon
which Gibbs now seeks to have his conviction reversed.

53

Had anyone mentioned the word "availability," of course, it would have been a
relatively simple matter for the Government to address that question and
produce proofs as to Quintiliano's availability or unavailability. Presumably the
Government could have called Quintiliano, and if Quintiliano had asserted the
fifth amendment privilege against self-incrimination, he then would have been
deemed unavailable. See United States v. Pelton, 578 F.2d 701, 709-10 (8th
Cir.1978). Hence, it is solely by reason of Gibbs' failure to raise the issue of
Quintiliano's availability before the district court, that the record is barren of
any evidence of Quintiliano's unavailability.

54

The district court denied Gibbs' motion to strike and motion for judgment of
acquittal without comment on Gibbs' general constitutional objection. The
court found only that "the Government has established the existence of an
alleged conspiracy and the connection of each defendant with it by a clear
preponderance of the evidence independent of the hearsay declarations." App.
at 480a. The defense rested immediately thereafter. Gibbs' conviction followed.

B.
55

There are compelling reasons why Gibbs' Confrontation Clause objection--even

if it had been specifically made, and even if it had addressed the issues of
burden of proof and unavailability, which it did not--should be regarded as

untimely.
56

First, Fed.R.Evid. 103(a)(1) requires that a timely objection or motion to strike

must "stat[e] the specific ground of objection, if the specific ground was not
apparent from the context." Gibbs can hardly argue that the issue of the
Government's failure to establish Quintiliano's unavailability--an argument that
eluded the Government and the district court--was "apparent from the context."
It follows that Gibbs was obliged to satisfy the specificity requirement of Rule
103.

57

The Advisory Committee Notes to Rule 103 indicate that the purpose of the
specificity requirement is to call the nature of the error "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." Rule 103(a) Advisory Comm.
Note. Gibbs' objection is the model of an objection that fails the Advisory
Committee's test. At no time was the district court ever apprised that the nub of
Gibbs' complaint was that the Government had not proved Quintiliano's
unavailability. As a consequence, the Government was deprived of the
opportunity to take corrective measures--including the possibility of calling
Quintiliano in order to establish that he would assert the fifth amendment
privilege.

58

Second, even assuming that Gibbs' objection was sufficiently specific, Gibbs
made his constitutional objection not when the evidence was offered, but
during a motion to strike made after the Government rested. As a consequence,
the many co-conspirator declarations related by White and Bilella over the
course of a three-day trial were already in evidence.

59

As Professors Wright and Graham note, the appropriate time for raising an
objection is as soon as the ground for objection is known, or could reasonably
have been known to the objector--unless some special reason makes its
postponement desirable and not unfair to the opposition. 21 C. Wright & K.
Graham, Federal Practice and Procedure Sec. 5037, at 188 (1977). Nothing
prevented Gibbs' counsel from raising an objection when White first testified.
Gibbs could have objected to the following effect: "Your Honor, although Rule
801 does not require that the declarant be unavailable, the Confrontation Clause
does. Because there is no evidence that Quintiliano is unavailable, the evidence
is inadmissible."

60

This simple objection, if made when the Government sought to introduce the
testimony of White and Bilella, would have warned the Government of the

need to call Quintiliano, or to prove his unavailability in other ways. No special

reasons made a postponement of this objection desirable, and a good many
reasons made its postponement unfair. Not the least of these reasons is that the
Government would have been obliged to reopen its case in order to establish
Quintiliano's unavailability--a matter which, from his silence at trial, we can
only assume Gibbs had taken for granted.
61

If Quintiliano ultimately proved to be unavailable, a delay of several days might

have resulted until the Government produced him--a delay that could have been
obviated had Gibbs' constitutional objection been made during the trial, when it
would have been timely, rather than after the evidence had closed. Even at that
late date, an issue raised as to unavailability could still have been met by the
Government. If, however, Quintiliano had proved to be "available"--perhaps
because he would choose not to assert his fifth amendment privilege--Gibbs'
motion to strike, if granted, would almost certainly have been followed by a
motion for mistrial on the ground that no jurors could be expected to expunge
from their minds the many hearsay declarations adduced throughout three days
of prior testimony.

62

This court has frequently held that it will not entertain arguments on appeal
based on objections not timely raised below. See Halderman v. Pennhurst State
School & Hospital, 673 F.2d 628, 639 (3d Cir.1982) (in banc), reversed on
other grounds, --- U.S. ----, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Caisson Corp.
v. Ingersoll-Rand Co., 622 F.2d 672, 680 (3d Cir.1980). To do so here would
constitute an unacceptable interference with the administration of justice and
the district court's management of the trial. We reverse the trial judge's
determination of timeliness only for an abuse of discretion.24 The circumstances
here do not rise to that level. For these reasons, we hold Gibbs' objection
untimely25 and insufficient to preserve a Confrontation Clause "unavailability"
issue for appeal.

V.
63

As we have discussed, we are satisfied that there was sufficient evidence to

withstand Gibbs' 801(d)(2)(E) objection, which had been properly taken. Gibbs,
however, did not preserve in timely fashion the Confrontation Clause issue
which he has raised on appeal. His failure to alert the Government or the court
to the issue of Quintiliano's unavailability precludes our consideration of Gibbs'
argument which involves, among other things, the Government's failure to
carry its sixth amendment burden of proof. Having failed to preserve this issue
at the threshold, there is no need for us to address the merits of his sixth
amendment argument.

64

We will affirm Gibbs' conviction.

65

ROSENN, Senior Circuit Judge, with whom ALDISERT and GIBBONS,

Circuit Judges, join, dissenting.

66

Beginning with the defendant's brief and only appearance in Quakertown,

Pennsylvania, the Government's case against him is built upon speculative
inferences, legal fiction, and double hearsay. These are joined by the fragile
tissue of a judicial presumption that, once a defendant has been found to have
participated in a conspiracy, he is presumed to continue to participate in it
despite the lapse of considerable time, unless he produces affirmative evidence
that he has withdrawn.

67

The Government's case is grounded on meager testimony--barely sufficient

under the preponderance of evidence rule of this circuit--offered as independent
evidence of defendant's participation in the marijuana conspiracy1 as a potential
buyer. On the basis of this slight, inferential, and dubious evidence the
Government introduced the out-of-court hearsay declarations. To accomplish
this objective the Government leaned heavily on the coconspirator rule, which
is based on the legal fiction that each conspirator is the agent of the other. It has
neither produced the declarant for cross-examination nor has it shown that he is
unavailable. Also absent is not only direct or circumstantial evidence of guilt,
but the procedural opportunity for fairness and the discovery of truth. The
accused has been denied the fundamental right to cross-examine the out-ofcourt declarant. A society that values the good name and liberty of every
person should not condemn anyone on such a naked amalgam of double
hearsay, legal fiction, and judicial presumption. I therefore dissent.

I.
68

No one disputes the existence of the 1980 conspiracy among the two
Quintiliano brothers and others to smuggle marijuana into Pennsylvania from
Colombia, South America, and to distribute it. As the majority correctly
observes, op. at 840, the Government prosecuted Gibbs on the theory that he
too participated in the conspiracy as the potential purchaser. To prove his
participation, the Government established that on April 7, 1980, Gibbs flew to
Wings Air Field in Montgomery County, Pennsylvania, where Joseph
Quintiliano2 met him. They then traveled to the Quakertown Airport, where
they inspected for several minutes the Beechcraft airplane purchased several
weeks previously by Quintiliano to smuggle the marijuana from Colombia.

69

At this point, there may have been several legitimate reasons why Gibbs was in

69

At this point, there may have been several legitimate reasons why Gibbs was in
Quakertown. State police officers, however, gave it a criminal conspiratorial
flavor by testifying that they observed Quintiliano, upon leaving the
Quakertown Airport, engage in what they considered evasive driving to avoid
surveillance.

70

Based upon this tenuous evidence of Gibbs's complicity in the conspiracy, the
Government introduced out-of-court statements allegedly made by Quintiliano
to Bilella and White, unindicted coconspirators, of what Gibbs allegedly told
Quintiliano.3 These out-of-court statements, which the majority acknowledges
were the principal evidence offered against Gibbs, op. at 841, became the
fulcrum of the Government's case and were essential to convict Gibbs. The
Government never called Quintiliano, but instead produced Bilella and White,
who testified that about the time Quintiliano purchased the Beechcraft airplane
he told them that he planned to sell the imported marijuana to a customer
named "Jake." White testified that Gibbs, whom he had met when Gibbs came
to inspect the plane at Quakertown, matched Quintiliano's description of "Jake"
and had identified himself to White under that name.

71

The crux of the Government's case depends upon the out-of-court statements
made on the evening of October 4, 1980, at Quintiliano's home. These
statements allegedly (op. at 841-842) made by Gibbs alluded to Quintiliano's
reopening of negotiations with him in early October 1980 after Quintiliano had
rejected some Florida prospects for the purchase. They were introduced in
evidence through Bilella's and White's testimony. Quintiliano told them that he
had telephoned "Jake" when he rejected the prospective Florida purchasers and
that "Jake" told him that he would "try to make the necessary arrangements" for
the purchase.

72

In an effort to give some credence to the hearsay testimony, the Government

introduced evidence of certain telephone records. They showed that long
distance calls were made early in October 1980 from Quintiliano's residence in
Pennsylvania to the Gibbs residence or to the Ram Broadcast Company in
Massachusetts. There is no evidence, however, of any conversation with Gibbs.
The Government suggests that from this series of telephone calls it can be
inferred that Gibbs and Quintiliano were discussing arrangements for the sale
of the marijuana in furtherance of whatever plans they had made at their April
meeting. There are several major problems with the Government's argument,
however. One obvious difficulty is the absence of evidence directly linking
Gibbs with Ram or proof that any of Quintiliano's calls to Ram were returned.
Moreover, except for Quintiliano's out-of-court hearsay, there is nothing to
indicate the substance of the conversations or that they actually conversed.

II.
73

Although I am inclined to agree with the majority that there may be sufficient
evidence to permit a reasonable inference of Gibbs's initial complicity in the
enterprise, I strongly believe that the admission of the double hearsay
statements constitutes serious and therefore reversible error because it deprived
Gibbs of his sixth amendment right to confrontation. Because the independent
evidence upon which the Government relied for introduction of the out-of-court
statements was so tenuous,4 it was highly important that any out-of-court
statements be unequivocal and that the declarant be subject to searching crossexamination.

74

In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the
Supreme Court recognized that the confrontation clause and the hearsay rule
"stem from the same roots," but stated that "the Court has never equated the
two, and we decline to do so...." Id. at 86, 91 S.Ct. at 218. The confrontation
clause issue and the evidentiary question therefore must be separately analyzed,
and the sixth amendment may require the exclusion of evidence even though
admissible under Fed.R.Evid. 801(d)(2)(E). See United States v. Perez, 658
F.2d 654, 660 & n. 5 (9th Cir.1981). See also United States v. Palumbo, 639
F.2d 123, 131 (3d Cir.) (Adams, J., concurring), cert. denied, 454 U.S. 819, 102
S.Ct. 100, 70 L.Ed.2d 90 (1981); United States v. Puco, 476 F.2d 1099, 1102
(2d Cir.), cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82 (1973).

75

In Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d
597 (1980), the Supreme Court identified two restrictions that the confrontation
clause places on the use of hearsay evidence in criminal trials. First, the
prosecution generally must establish that the hearsay evidence is necessary
because the declarant is unavailable. Second, the hearsay statement must be
reliable. "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 2538 (quoting Snyder v. Massachusetts,
291 U.S. 97, 107, 54 S.Ct. 330, 332-33, 78 L.Ed. 674 (1934)). In the instant
case, the necessity aspect of this test has not been met. Therefore, there is no
need to reach the question whether the reliability prong has been satisfied.

76

Although the literal language of the sixth amendment guarantees to any accused
"the right ... to be confronted with the witnesses against him," the Supreme
Court has recognized the necessity that extrajudicial statements sometimes must
be used because of the declarant's unavailability. Gibbs maintains that

Quintiliano was not legally unavailable to testify and that therefore there was
no need for introduction of his out-of-court statements. The Government
contends that a showing of unavailability is not required.
77

The Supreme Court discussed the unavailability component of the

confrontation clause in Ohio v. Roberts, supra:

78 conformance with the Framers' preference for face-to-face accusation, the Sixth
[I]n
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.
79

448 U.S. at 65, 100 S.Ct. at 2538. A witness may be deemed "unavailable" only
if the prosecution has made "a good faith effort to obtain his presence at trial."
Id. at 74, 100 S.Ct. at 2543 (emphasis in original) (quoting Barber v. Page, 390
U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968)). And, under the
foregoing language in Ohio v. Roberts, it is the prosecution that must produce
or demonstrate the unavailability of the declarants. The Court did not impose
any burden on the accused to show that the declarant is available.

80

Quintiliano was a codefendant in the Government's prosecution who had

pleaded guilty to two of the three counts in the indictment and was still
awaiting sentencing at the time of Gibbs's trial. There is no evidence in the trial
record that bears on Quintiliano's availability. Although Quintiliano was faced
with an impending sentencing proceeding and might not have been willing to
waive his fifth amendment right and testify against Gibbs, there is a possibility
that he would have because he had already pleaded guilty. Because there is
nothing in the record to indicate that the Government ever established that
Quintiliano would refuse to testify against Gibbs, the Government failed to
carry its burden under Ohio v. Roberts, 448 U.S. at 74-75, 100 S.Ct. at 2543-44,
to demonstrate the declarant's legal unavailability.

81

In a footnote, the Roberts Court suggested that "[a] demonstration of

unavailability, however, is not always required," id. at 65 n. 7, 100 S.Ct. at
2538 n. 7. To support this proposition, the Court cited Dutton v. Evans, 400
U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), in which it had permitted the
admission of coconspirator hearsay in circumstances where a seemingly
available declarant was not called to testify. The Roberts Court described
Dutton as a case where the requirement of unavailability could be dispensed
with because "the utility of trial confrontation" would have been "remote." See
448 U.S. at 65 n. 7, 100 S.Ct. at 2538 n. 7; United States v. Perez, 658 F.2d at
661. Here, Quintiliano's statements do not fall within the Dutton exception to

the unavailability requirement because they are crucial to conviction, and not
"of peripheral significance at most," as in Dutton, 400 U.S. at 87, 91 S.Ct. at
219. Moreover, in Dutton, the Court pointed out that the accused there had full
opportunity to cross-examine the declarant as to whether he actually heard the
person make the statement offered in evidence.
82

The instant case is also distinguishable from Dutton because the Government
has not carried its burden of showing that Quintiliano's hearsay statements were
"marked with such trustworthiness," Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct.
at 2538, to justify disregarding the unavailability requirement. I can conceive of
possible motives Quintiliano might have had to misrepresent Gibbs's
involvement in the crime.5 For example, Quintiliano may have misrepresented
Gibbs's involvement to reassure his coconspirators that plans for the sale of the
contraband were proceeding smoothly. In addition, it is plausible that the
statements were contrived as part of Quintiliano's bargaining strategy.
Quintiliano may have seen a chance of pressuring the Florida buyers to offer
better terms by giving the impression that he had another buyer waiting in the
wings. Under these circumstances, the cross-examination of the testifying
witnesses (White and Bilella) could not adequately test the truthfulness of
Quintiliano's statements.

83

Most important, I believe that the instant case falls outside the Dutton
exception to the unavailability requirement because I do not believe
Quintiliano's hearsay statements were only "of peripheral significance," see 400
U.S. at 87, 91 S.Ct. at 219, in the prosecution's case. The challenged statements
provide direct incriminating evidence, in the form of Quintiliano's declaration
that Gibbs had agreed to buy the marijuana. Admittedly, there is some other
evidence linking Gibbs to the conspiracy. However, unlike Dutton, where the
disputed evidence consisted of a single sentence reported by one of twenty
witnesses, the coconspirator hearsay presented in Gibbs's trial was the core of
the Government's case.6

84

The opportunity to cross-examine an accuser or a critical witness is a powerful

tool in the search for truth and in the assessment of guilt or innocence. The
confrontation clause, in the words of the Supreme Court, contemplates

85 personal examination and cross-examination of the witness in which the accused

"a
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."

86

Ohio v. Roberts, 448 U.S. at 63-64, 100 S.Ct. at 2537-38 (quoting Mattox v.
United States, 156 U.S. 237, 242-43, 15 S.Ct. 337 at 399, 39 L.Ed. 409 (1895)
). Because the right of confrontation is so important in our adversarial system, it
may only be denied in exceptional situations. The Government has not met its
burden to show that the instant case is such an exceptional situation. The
prosecution has failed to establish either that the declarant cannot be produced
for trial or that the hearsay is sufficiently reliable and insignificant to justify
dispensing with a showing of unavailability.

87

The admission of Quintiliano's statements without giving the defendant the

opportunity to cross-examine the declarant sharply tipped the scales of justice
against the defendant. The historic safeguard guaranteeing the accused the right
to be confronted with the witnesses against him may not be disregarded.

III.
88

The majority, however, does not reach the merits of the sixth amendment issue
because it asserts that "Gibbs did not preserve that issue for appeal [and
therefore] it cannot serve now as a basis to reverse Gibbs's conviction." Op. at
847. But the issue was raised in the trial court, perhaps not as specifically or as
timely as it might have been, but it was raised sufficiently to be preserved and
heard. 7

89

First, the defendant repeatedly objected during the Government's case in chief
to the admission of Quintiliano's statements on the ground that they failed to
satisfy Fed.R.Evid. 801(d)(2)(E). Although these objections did not specifically
refer to the sixth amendment issue, they should have sufficed to put the trial
judge on notice that intertwined with them was a constitutional issue. See State
v. Poole, 31 Or.App. 925, 572 P.2d 320 (1977) (objection only on the ground of
hearsay was so closely related to the incompetency of the witness as to preserve
for appeal the challenge based on the incompetency of the witness). Second, if
there was any doubt concerning notice to the Government and the court, it was
resolved when the Government rested without calling Quintiliano or producing
proof of his unavailability. Only at that point could Gibbs have been certain
that he would be denied his constitutional right to confront his accuser. He
therefore moved, while the court, jury, and counsel were still present, to strike
the hearsay, stating:

90
[A]side
from the co-conspirator exception to the hearsay rule, there is a clear sixth
amendment problem in this case, and the co-conspirator hearsay rule which permits
the introduction of co-conspirator hearsay does not subsume and take place of the
sixth amendment right to confrontation ... [and] the other cases have recognized that

there is still, notwithstanding the existence of 801(d)(2)(E) ... a sixth amendment

right of a defendant to confront and cross-examine his accusers. 8
91

(452a-453a) If the Government desired to cure the defect, it could have done so
readily at that time. It did not.

92

The majority asserts that if the defendant had objected when the Government
sought to introduce the testimony of White and Bilella that "would have warned
the Government of the need to call Quintiliano or to prove his unavailability in
other ways." Op. at 849. As a matter of trial management, it would, of course,
have been desirable for the defense to have specifically objected at the time on
the sixth amendment ground, but not because the Government had to be warned
of the need to call Quintiliano or prove his unavailability. The Government
should have known that under Ohio v. Roberts, "in the usual case ... the
prosecution must either produce, or demonstrate unavailability of, the declarant
whose statement it wishes to use against the defendant." See supra at 853.
Calling Quintiliano or proving his unavailability was, as the majority
recognizes, "a relatively simple matter for the Government." Op. at 848. Taking
such action when the motion to strike was tendered may have been an
inconvenience for the Government, but an inconvenience so trivial should not
be used to nullify an important constitutional safeguard.

93

Finally, the majority assumes that the district court overruled the defendant's
sixth amendment objection on the ground that it was untimely. It therefore
declares that "the trial judge's determination of timeliness" can only be reversed
for an abuse of discretion. Op. at 850. The record, however, does not support
this assumption. The trial judge heard and considered the defendant's sixth
amendment motion to strike before the defense opened its case; he did not
reject the motion as "untimely." In fact, he made no ruling at all with respect to
this constitutional issue. After hearing arguments of defense counsel and the
prosecution when the Government rested, the trial judge either ignored the
sixth amendment motion or impliedly equated it with the coconspirator
exception. He only ruled: "We find that the Government has established the
existence of an alleged conspiracy and the connection of each defendant with it
by a clear preponderance of the evidence independent of the hearsay
declarations." (480a) This was the substance of the district court's ruling on the
defense arguments with respect to the coconspirator statements and the sixth
amendment motion to strike the testimony. Thus, as this record stands, the
court did not reject the sixth amendment motion on the ground of untimeliness.
The prosecution raised no objection to the motion on the ground of
untimeliness. The untimeliness question was raised for the first time by Judge
Garth sua sponte in his dissent from the panel opinion. (Panel slip op. at 30).

94

In any event, the confrontation issue is significant to the fact-finding process

and to the ultimate determination of guilt or innocence. If the objection was not
timely raised, this court may nonetheless take notice of the issue under the
plain error rule.9 The denial of the right to cross-examine the declarant of the
hearsay statements, especially under the circumstances we have here, violated a
fundamental right of the accused and constituted serious prejudicial error.
United States v. McKinney, 707 F.2d 381 (9th Cir.1983); United States v.
Provencio, 554 F.2d 361 (9th Cir.1977); People v. Marine, 48 Ill.App.3d 271, 6
Ill.Dec. 25, 362 N.E.2d 454 (1977). "In exceptional circumstances, especially
in criminal cases, appellate courts, in the public interest, may, of their own
motion, notice error to which no exception has been taken, if the errors are
obvious, or if they otherwise seriously affect the fairness, integrity, or public
reputation of judicial proceedings." Silber v. United States, 370 U.S. 717, 718,
82 S.Ct. 1287, 1288, 8 L.Ed.2d 798 (1962) (per curiam) (quoting United States
v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)).

95

Courts have found no difficulty in reviewing a sixth amendment issue under the
plain error rule for the waiver of fundamental constitutional rights "is not
lightly to be found." United States v. Provencio, 554 F.2d at 363. In United
States v. McKinney, 707 F.2d 381 (9th Cir.1983), the defendant, as in this case,
was convicted on Government testimony that constituted double hearsay.
Although the sixth amendment issue was neither raised in the district court nor
briefed or argued on appeal, the circuit court sua sponte considered the issue
under the plain error rule and reversed. In United States v. Provencio, the court
held that the introduction of depositions without any proof that the deposed
witnesses were unavailable was such an obvious violation of the accused's
rights to confrontation that "it is unnecessary for us to decide whether the error
in admitting the evidence without objection was plain error." 554 F.2d at 362.
The court refused to infer a waiver of a fundamental right from the failure of
the defense counsel to object at the time of trial. Id. at 363.10

96

In People v. Marine, 48 Ill.App.3d 271, 6 Ill.Dec. 25, 362 N.E.2d 454 (1977),
the appellate court reviewed a confrontation issue although the defendant had
objected at trial only on the ground of hearsay. In rejecting the state's argument
that the defendant had waived the confrontation issue by only objecting on the
ground of inadmissible hearsay, the court stated: "Even if we were to find a
waiver of this issue for purposes of appeal, we regard the right to confrontation
to be of such significance as to involve the application of the plain error rule."
Id. at 276, 6 Ill.Dec. at 29, 362 N.E.2d at 458 (citations omitted).

IV.

97

In summary, I believe that the sixth amendment issue was timely raised, even if
the objection came at the close of the Government's case. Had it not been
timely, this court should review the issue under the plain error rule both
because fundamental rights are involved and because the Government's case
rests largely on untested, devastating hearsay. Because the defendant has been
denied the right of confrontation and cross-examination, "an essential and
fundamental requirement for the kind of fair trial which is this country's
constitutional goal," Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20
L.Ed.2d 255 (1967) (quoting Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct.
1065, 1068, 13 L.Ed.2d 923 (1965), the judgment of conviction should be
reversed and the case remanded for a new trial.

98

SEITZ, Chief Judge, dissenting.

99

I am in agreement with all the basic conclusions reached in Judge Rosenn's

dissent.1 I write separately because Judge Rosenn would order a new trial while
I would vacate and remand to afford the government an opportunity to
discharge its burden of showing that Quintiliano was unavailable at the time of
the trial. See 28 U.S.C. Sec. 2106.

100 The only issue dividing the court concerns a possible violation of the
Confrontation Clause. I agree with Judge Rosenn that there was a violation of
the Confrontation Clause if Quintiliano was available at the time of the trial.
On the other hand, if the government can present clear and convincing evidence
at a hearing that it made a "good faith effort" to obtain Quintiliano's presence at
trial, see Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 2543, 65 L.Ed.2d
597 (1980), or that such an effort would have been clearly unavailing, then I
believe the government will have satisfied the unavailability requirement of the
Confrontation Clause.2 This would correct the erroneous ruling of the district
judge at the trial. I can think of no legitimate societal purpose to be served by
ordering a new trial, unless such a hearing would debase the values inherent in
the Confrontation Clause.
101 I assume that the objection to a later hearing on the unavailability issue would
be based on the problems inherent in reconstructing the situation that existed at
the time of the trial. It seems to me that the heavy burden on the government at
such a hearing, together with the requirement that the district court make a
reasoned determination, subject to appellate review, provides meaningful
assurance that a defendant will not be impermissibly deprived of his
Confrontation rights.

102 I recognize the concern expressed by the then Chief Judge Bazelon in his
dissent in Henderson v. United States, 349 F.2d 712 (D.C.Cir.1965), that a
remand places what amounts to a psychological burden on the defendant
because of the court's awareness of the conviction. However, I believe the
safeguards afforded, including appellate review, sufficiently protect a
defendant's Confrontation rights. Indeed, the nunc pro tunc hearing approach to
the suppression of evidence which was approved in Waller v. Georgia, 52
U.S.L.W. 4618, 4620-21 (May 22, 1984) and Jackson v. Denno, 378 U.S. 368,
394, 84 S.Ct. 1774, 1790, 12 L.Ed.2d 908 (1964), certainly implicated defense
interests every bit as important as that here implicated. Compare Government
of the Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir.1980).
103 Thus, while I join the basic conclusions in Judge Rosenn's dissent, I would
vacate and remand for an evidentiary hearing on the unavailability issue and, if
pertinent, the trustworthiness issue.
104 I therefore dissent.

Also named in the indictment were Joseph Quintiliano (an alleged coconspirator), Jerry Quintiliano (Joseph's brother), Prentiss Breland, Michael
O'Looney, and Alejandro Rizo. All six defendants were charged in Count I of
the indictment with conspiracy to distribute and to possess with the intent to
distribute marijuana, in violation of 21 U.S.C. Sec. 846. All of the defendants
except Gibbs were also charged with conspiracy to import marijuana
unlawfully, in violation of 21 U.S.C. Sec. 963 (Count II) and with the
substantive offense of illegal importation of marijuana in violation of 21 U.S.C.
Sec. 952 (Count III). Gibbs was tried jointly with codefendant Rizo, who was
convicted on two counts of the indictment. The trial of Prentiss Breland was
severed, and the other three defendants pleaded guilty to the indictment

Bilella was an aviation insurance broker and Quintiliano's cousin. White, an

experienced pilot, was introduced to Quintiliano by Bilella. Throughout the
conspiracy, White acted as an informant for the Federal Drug Enforcement
Administration (DEA)

Prentiss Breland was convicted of violating 21 U.S.C. Sec. 846 (conspiracy to

possess with intent to distribute marijuana) and 21 U.S.C. Sec. 963 (conspiracy
to import marijuana) and he was sentenced to fifteen years imprisonment on the
Sec. 846 count and five years probation on the Sec. 963 count. This court
affirmed that judgment and conviction. United States v. Breland, 709 F.2d 1490

(3d Cir.1982)
4

DEA Agents were notified by David White, who called from Pennsylvania to
alert them that Breland had landed in Florida with drugs

Q: What did he [Quintiliano] say about "Jake" to you that evening?

A: He said he had called. He went to another room and said he had called up
"Jake" and asked him if he could perhaps make arrangements to have someone
come down and pick up this load.
Q: Did he tell you whether he had reached "Jake" to speak to him?
A: He had spoken to him, yes.
Q: And did he tell you what "Jake's" response to him was?
A: That he would try to make the necessary arrangements, yes.
App. 273a (Bilella on Direct Examination).

The telephone records show that Quintiliano made one call to Florida at 10:52
p.m

Q: Were other telephone calls made that evening?

A: Joe made a call to a--gentleman named "Jake" in--in the Boston or
Massachusetts area to see if he would buy the--marijuana.
Q: And after that telephone call, what did Joe say about the call?
A: Joe told me that "Jake" would buy the marijuana. He only could--could that
night--he only had a hundred thousand dollars cash on hand. We--he would be
able to get the rest of the money in a day or when the banks opened.
App. 109a (White on Direct Examination).

The evidence documents five calls in March and one in May 1980. The
Government offered no records for the month of April

The first such telephone call was made early in the morning of October 4. A
call was also made that night at 8:52 p.m., and at 10:21 p.m., a call to Ram was
placed from a pay telephone near Quintiliano's home and charged to the
Quintiliano residence

10

Technically, the federal rules exclude admissions from the definition of hearsay
rather than treating them as exceptions to the rule against hearsay. See 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). For simplicity, we will refer to the "coconspirator exception."

11

Other courts have also adopted this rule. See, e.g., United States v. Andrews,
585 F.2d 961 (10th Cir.1978); United States v. Santiago, 582 F.2d 1128 (7th
Cir.1978); United States v. Enright, 579 F.2d 980 (6th Cir.1978); United States
v. Bell, 573 F.2d 1040 (8th Cir.1978); United States v. Stanchich, 550 F.2d
1294 (2d Cir.1977); United States v. Jones, 542 F.2d 186 (4th Cir.), cert.
denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375, 376 (1976). But see
United States v. Bulman, 667 F.2d 1374, 1377-79 (11th Cir.), cert. denied, 456
U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982) (adopting Fifth Circuit
precedent of "substantial independent evidence" test); United States v. Slade,
627 F.2d 293, 307 (D.C.Cir.1980) (same test); United States v. James, 590 F.2d
575 (5th Cir.) (en banc) (same test), cert. denied, 442 U.S. 917, 99 S.Ct. 2836,
61 L.Ed.2d 283 (1979)

12

In Trotter, this court refused to accept the Government's suggestion that a less
rigorous standard requiring only "prima facie proof" was appropriate in light of
United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)

13

Once Gibbs was held to have participated in the conspiracy the telephone
conversations referred to in text were properly admissible against Gibbs under
Fed.R.Evid. 801(d)(2)(E). See Ammar, 714 F.2d at 245

14

White testified on direct examination that he "volunteered to go down and pick

up 'Jake' with my--with an airplane, and Joe accepted the--the offer, ... and the
next day I went down to the airport and met--met 'Jake'." App. 61a. This
testimony would be admissible against Gibbs to link him to the conspiracy
without running afoul of the hearsay rules

15

The defendant argued before this court, based on the record, that Gibbs was
taken to Wings Airfield because it was convenient to Quintiliano's residence.
Accepting that as true does not alter the fact that a reasonable inference such as
the Government suggests could be drawn from the circumstances described. At
this point in time, the Government is entitled to the benefit of any reasonable
inferences that may be drawn from the record. Glasser v. United States, 315
U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941)

16

It is true that mere association with those who have conspired cannot by itself
support a conviction for conspiracy. See Ammar, 714 F.2d at 250; United
States v. Torres, 519 F.2d 723, 726 (2d Cir.), cert. denied, 423 U.S. 1019, 96

S.Ct. 457, 46 L.Ed.2d 392 (1975). In the instant case, however, inferences are
capable of being drawn which suggest that Gibbs' meeting with Quintiliano was
"intended to advance the ends of the conspiracy." See United States v.
Mancillas, 580 F.2d 1301, 1308 (7th Cir.), cert. denied, 439 U.S. 958, 99 S.Ct.
361, 58 L.Ed.2d 351 (1978). In addition, it must be remembered that the
Government's burden here was only to establish the existence of a conspiracy
by a preponderance of the evidence
17

Direct evidence of Gibbs' relationship to Quintiliano in October 1980 consists

of telephone records showing calls from the Quintiliano residence to the Gibbs
residence or to Ram Broadcast Co. at around that time. The Government
suggests that from this series of telephone calls it can be inferred that Gibbs and
Quintiliano were discussing arrangements for the sale of the marijuana in
furtherance of whatever plans they had made at their April meeting. Gibbs
argues otherwise. He claims that one obvious difficulty is the absence of
evidence directly linking Gibbs with Ram or showing that any of Quintiliano's
calls were returned. Moreover, Gibbs asserts that except for Quintiliano's
hearsay, there is nothing to indicate the substance of the conversations, and the
bare bone telephone toll records have little probative value

18

Defendants can also show "that the conspiracy terminated, such as by

demonstrating that its ends had been so frustrated or its means so impaired that
its continuation was no longer plausible." Ammar, 714 F.2d at 254. There is no
doubt in this case but that the drug smuggling conspiracy itself had not been
terminated and was ongoing in October 1980

19

Gibbs claims the presumption of continuing involvement under Gillen is

unconstitutional, citing United States v. Read, 658 F.2d 1225 (7th Cir.1981).
Read, however, concerns the prosecution's burden to prove every element of
the offense beyond a reasonable doubt as a basis for a conviction and thus is not
relevant to the lesser showing that must be made to permit the introduction of
co-conspirator statements. Moreover, Read did impose on the defendant the
burden of presenting some evidence of withdrawal. Id. at 1239. Here none was
presented

20

Although Gibbs challenged the admissibility of Quintiliano's out-of-court

statements and at the conclusion of the trial moved "to strike all of the hearsay
coconspirator's declarations," on appeal Gibbs argues in support of his claim
(that he had withdrawn from the conspiracy) that an alleged statement by
Quintiliano to Bilella early in October 1980--to the effect that Quintiliano had
another potential buyer from Florida for the marijuana--is evidence that Gibbs
had withdrawn from the conspiracy as early as April. This testimony, however,
is a portion of the very evidence to which Gibbs objects

21

The only argument made by Gibbs challenging the reliability of the evidence is
that Quintiliano had reason to, and did, fabricate Gibbs' involvement in the
conspiracy. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597
(1980), the Supreme Court held that "the Confrontation Clause restricts the
range of admissible hearsay by imposing a two-prong requirement: first, the
government must normally show that the declarant is unavailable and that the
hearsay testimony is thus necessary; and second, the statement must bear
sufficient 'indicia of reliability' to demonstrate its trustworthiness." 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), citing Roberts, 448 U.S. at 65-66, 100 S.Ct.
at 2538-39. Some members of the majority believe that the reliability
component of the Roberts test should be addressed in this opinion, while others
do not. See United States v. Ammar, 714 F.2d 238, 254-57 (3d Cir.1983)
(decided after Gibbs' trial). Regardless of that philosophical disagreement, all
the members of the majority are in agreement that the Roberts reliability
requirement, if preserved for appeal, was satisfied in this case. See Ammar, 714
F.2d at 256 ("[I]n many, if not most, instances a coconspirator statement which
is admissible under Rule 801(d)(2)(E) will also be sufficiently reliable to satisfy
the Confrontation Clause."). In short, we are not persuaded by Gibbs' reliability
argument

22

Rule 801(d)(2)(E) states only that "[a] statement is not hearsay if ... [t]he
statement is offered against a party and is ... a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy."

23

Rule 804(b) lists five hearsay exceptions which "are not excluded by the
hearsay rule if the declarant is unavailable as a witness," using the definition of
"unavailable" found in Rule 804(a) (listing five categories of when a witness is
to be deemed unavailable)

24

In Belmont Industries, Inc. v. Bethlehem Steel Corp., 512 F.2d 434 (3d
Cir.1975), testimony had been received without objection "at widely scattered
times over [a] ten-day trial." Id. at 437. Belmont moved after the close of
Bethlehem's case to strike considerable portions of testimony on hearsay and
best-evidence grounds. In addition, like Gibbs, Belmont's motion did not
specify which of the items of testimony were to be stricken. Id. This court held:
We cannot say that the trial judge abused his discretion in determining that the
possibilities of confusion to the jury, prejudice to the opposing party, and undue
delay of a case about to be submitted to the jury outweighed the detriment
suffered by Belmont resulting from the reception of this allegedly hearsay and
secondary evidence.

Id. (footnote omitted).

The circumstances in Belmont Industries apply with equal force here. Certainly
the prospects of confusion to the jury, prejudice to the Government, and undue
delay are very real in this case, particularly since here Gibbs at no time made
known the specific constitutional ground on which he now relies.
25

Although we may entertain on appeal objections not timely raised below if the
district court committed plain error, see Fed.R.Crim.Proc. 52(b); Halderman,
supra, 673 F.2d at 639-40, we are satisfied that in this instance the district court
did not commit plain error
Judge Aldisert and Judge Gibbons believe that there was insufficient evidence
of conspiracy measured by the "fair preponderance of independent evidence"
test of United States v. Trotter, 529 F.2d 806, 811-12 (3d Cir.1976). See also
Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 115-17 (3d
Cir.1980), cert. denied, 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1981)
Several other circuits have adopted a more stringent test than the
preponderance of evidence rule for the admission of coconspirator statements.
They require "substantial evidence," independent of the statements, showing the
defendant's participation in the conspiracy. United States v. Bulman, 667 F.2d
1374, 1379 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d
1307 (1982); United States v. Jackson, 627 F.2d 1198, 1219 (D.C.Cir.1980);
United States v. Grassi, 616 F.2d 1295, 1300-01 (5th Cir.1980); United States
v. Petersen, 611 F.2d 1313, 1330-31 (10th Cir.1979).

All references hereinafter to Quintiliano are to Joseph Quintiliano

This constituted the "double hearsay" referred to in this dissent--Gibbs to

Quintiliano and Quintiliano to Bilella and White

I do not mean to suggest that there is anything improper in relying on a

presumption to show the continuation of a person's participation in a
conspiracy, but imposing such a presumption upon slight independent evidence
implicating the defendant in the conspiracy only highlights the utter absence of
flesh and blood in the Government's case upon which to rest the hearsay
statements of a non-testifying conspirator
The crucial portion of the alleged coconspirator statements was made
approximately six months after Gibbs's April 7 meeting in Quakertown. To
accomplish the admission, the Government relied upon a presumption that once
it established Gibbs's participation in the conspiracy, membership continued
thereafter until October 1980 unless Gibbs proved, by affirmative acts

inconsistent with the object of the conspiracy, that he had withdrawn. There is
no evidence in this record that Gibbs withdrew from the conspiracy after April.
5

It is true, of course, that Quintiliano's statements were against his penal interest
because they disclosed his own complicity in the conspiracy. But this fact is
hardly conclusive of the statements' reliability, particularly because the critical
portions of Quintiliano's statements--his references to Gibbs--were not against
his penal interest. See Davenport, The Confrontation Clause and the CoConspirator Exception in Criminal Prosecutions: A Functional Analysis, 85
Harv.L.Rev. 1378, 1395 (1972)

The instant case is distinguishable from United States v. Weber, 437 F.2d 327,
337-40 (3d Cir.1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d
867 (1971). In Weber, this court upheld against a constitutional attack the use
of a coconspirator's out-of-court statement against the accused. Three factors
distinguish Weber from the instant case. First, the hearsay evidence in Weber
presented the "traditional hallmarks of reliability, because they were uttered
spontaneously and they were against [the declarant's] penal interest." Id. at 340.
Here, there are significant doubts about the reliability of Quintiliano's
statements. Second, the coconspirator statements in Weber were not crucial to
the case, as they are here. Third, there was an absolute necessity for admission
in Weber because the declarant had died before trial

The majority asserts that the issue was never raised by Gibbs during trial. "Had
Gibbs by a specific objection, timely made, alerted the Government and the
district court to the fact that no proof of unavailability had been presented by
the Government, that deficiency could have been cured." Op. at 847

Defense counsel further stated in support of his sixth amendment objection:

"The men who should have been on that witness stand and ... whom I should
have been able to cross-examine [were] Joe Quintiliano [and his brother] Jerry
Quintiliano, the declarant[s] of the hearsay statement[s], and I have been denied
through this case the right to confront and cross-examine ... the ultimate
accusers in this case ... Joseph and Jerry Quintiliano." (453a)

Fed.R.Crim.P. 52(b) provides: "Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the
court." Plain error has been defined as "serious and manifest" or "seriously
prejudicial error" or "grave errors which seriously affect substantial rights of the
accused." United States v. Morales, 477 F.2d 1309, 1315 n. 17 (5th Cir.1973).
See United States v. Nobel, 696 F.2d 231, 237 (3d Cir.1982)

10

Other federal courts that have on appeal reviewed a confrontation argument,

although the issue was not specifically raised at trial, include: United States v.

Escobar, 674 F.2d 469 (5th Cir.1982) (admission of officer's testimony

constituted plain error affecting substantial rights that court will review even
absent timely objection at trial); Naples v. United States, 344 F.2d 508
(D.C.Cir.1964) (reception of double hearsay reviewed as plain error although
not raised below); United States v. Dunn, 299 F.2d 548 (6th Cir.1962) (receipt
of inadmissible hearsay that was the only evidence sufficient to make
prosecution's case reviewed by appellate court on its own motion)
In this court, we have often applied the plain error rule, sometimes in cases that
did not even involve fundamental rights of the accused. See, e.g., United States
v. Logan, 717 F.2d 84 (3d Cir.1983) (failure to preserve issue of trial court's
failure to instruct on character witness reviewable as plain error); Government
of the Virgin Islands v. Joseph, 685 F.2d 857 (3d Cir.1982) (submission to jury
of defendant's confession and minister's letter when not admitted of record
reviewable as plain error); Government of the Virgin Islands v. Brown, 685
F.2d 834, 839 (3d Cir.1982) ("[t]he omission of an essential element of an
offense in the charge to the jury ordinarily constitutes plain error, even in the
absence of objection"); United States v. DiPasquale, 677 F.2d 355, 359 n. 10
(3d Cir.1982) (submission of case to jury despite failure to renew motion for
judgment of acquittal at close of all the evidence reviewable under plain error
rule); Beardshall v. Minuteman Press Int'l, Inc., 664 F.2d 23 (3d Cir.1981)
(erroneous instruction on burden of proof in civil case reviewable under plain
error rule despite counsel's failure to object).
1

I do not find it necessary to join Judge Rosenn's plain error discussion

It would be for the district court to consider the "trustworthiness" issue if it

determined that Quintiliano was unavailable