ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: ADAMS, HIGGINBOTHAM and VAN DUSEN, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Defendant Joseph Inadi appeals from his conviction on charges arising out of an alleged conspiracy to manufacture and distribute narcotics. Disposition of this appeal requires that we resolve a recurring question that has twice eluded determination by this court, see United States v. Gibbs, 739 F.2d 838 (3d Cir. 1984) (in banc); United States v. Ammar, 714 F.2d 238 (3d Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983): Does the sixth amendment require the government to show that a non-testifying coconspirator is unavailable to testify, as a foundation for admitting that coconspirator's out-of-court statements under Federal Rule of Evidence 801(d)(2)(E)? We hold that the Confrontation Clause does require such a showing, and because in our view the government has not met this burden we will reverse the judgment of the district court.
Joseph Inadi was indicted in the Eastern District of Pennsylvania on charges of conspiring to manufacture and distribute methamphetamine, and on four related narcotics charges. The conspiracy count alleged that Inadi combined with John Lazaro, Jr., Michale McKeon, William Levan and other persons known and unknown. The government later named Marianne Lazaro -- John Lazaro's wife -- as the only additional unindicted coconspirator.
The government's case featured the testimony of two unindicted coconspirators and two Drug Enforcement Agency (DEA) agents, as well as five telephone conversations recorded through a tap on the Lazaro's phone. Unindicted coconspirator Michael McKeon testified, under a grant of use immunity, that he approached Inadi in September of 1979, when McKeon was seeking a distribution "outlet" for methamphetamine. Under an agreement they reached, Inadi was to supply cash and chemicals for the manufacture of methamphetamine and was also to be responsible for distribution, while McKeon and William Levan were to actually manufacture the substance.
McKeon testified that he and Levan made three attempts to manufacture ("cook") methamphetamine in Philadelphia between December of 1979 and April of 1980. The first cook was successful, producing three pounds of methamphetamine, which McKeon later delivered to Inadi. McKeon, Levan, and Inadi shared a profit of $19,500 on that transaction. The second cook failed to produce methamphetamine because the phenyl-2-propanol ("P2P") supplied by Inadi -- a necessary ingredient -- turned out to be some other substance. A third cook succeeded in producing three-and-one-half pounds of methamphetamine, which Levan delivered to Inadi.
According to McKeon, sometime after the third cook, probably in May of 1980, he went to Cape May, New Jersey with the liquid residue from the third cook. There he met Levan, Inadi, and John Lazaro, as well as two others not named as conspirators, at an empty ouse McKeon understood to be rented through Lazaro. They attempted to extract additional methamphetamine from the liquid residue. This "drying" resulted in less than an ounce of low quality product, which McKeon promptly sold for $200. In the early morning hours of May 23, 1980 two Cape May Police Officers surreptitiously entered the house pursuant to a warrant and removed a tray covered with drying methamphetamine. With permission of the issuing magistrate the officers delayed returning an inventory, leaving the participants to speculate over what had happened to the missing tray.
DEA agents Ellis Hershowitz and Nicholas Broughton testified that they observed a meeting between John Lazaro and Inadi on May 25, 1980. Lazaro and Inadi stood alongside Lazaro's car in the parking lot at "Frankie Master" Restaurant in Philadelphia and spoke for several minutes. Agent Broughton testified that he saw Inadi lean into Lazaro's car during this meeting. After Lazaro drove off the DEA agents overtook and stopped the car. They searched the vehicle, as well as Lazaro and his wife Marianne, who was a passenger at the time. Finding nothing, the agents allowed the Lazaros to leave. Some eight hours later Agent Hershowitz returned to the scene of the stop and search and found a clear plastic bag containing a small quantity of a white powder later identified by a government expert as methamphetamine.
Under a grant of use immunity, Marianne Lazaro testified that she was seated in the Lazaro car throughout the May 25, 1980 meeting between Inadi and John Lazaro. She did not see Inadi lean into the car. She further testified that after the meeting with Inadi her husband handed her a clear plastic bag containing white powder, which she put in her bra. While the DEA agents were searching the car, Marianne Lazaro removed the bag from her bra and threw it away. She denied that the bag and powder found by Hershowitz, and introduced as a government exhibit, were the items that her husband had given her.
The linchpins of the government's case were five telephone conversations recorded between May 23 and May 27, 1980 by the Cape May County Prosecutor's Office as part of their own investigation of Lazaro. The jury heard three conversations between Inadi and John Lazaro -- one recorded on May 23, in which Lazaro seems to ask, in code, for a quantity of methamphetamine for the weekend, and reports on the residue missing from the Cape May house, suggesting that "Mike" probably took it; another recorded on the morning of Sunday, May 25 arranging the meeting at Frankie Masters; and one recorded on May 27 in which Lazaro reports that he kicked "that piece" under his car during the May 25 DEA stop, and wonders how the agents were tipped off.
In a conversation between McKeon and Marianne Lazaro recorded on May 27, she describes the May 25 incident and suggests that Inadi might have set them up. McKeon assures her that Inadi was not an informant. In a May 27 conversation between John Lazaro and William Levan, there is further discussion of the missing Cape May residue (with Lazaro again ...