United States v. Frank Patrick Rosales

584 F.2d 870 3 Fed. R. Evid. Serv. 713 UNITED STATES of America, Plaintiff-Appellant, v. Frank Patrick ROSALES, Defendant-Appellee. No. 77-3282. United States Court of Appeals, Ninth Circuit. Aug. 23, 1978. As Amended on Denial of Rehearing and Rehearing En Banc Oct. 23, 1978. Mark L. Webb (argued), San Francisco, Cal., for plaintiff-appellant. Emerson E. Stafford, H. Jesse Arnelle, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before GOODWIN, WALLACE, and HUG, Circuit Judges. WALLACE, Circuit Judge: 1 The United States appeals from a ruling made sua sponte by the district court suppressing evidence sought to be introduced against Rosales at his trial for controlled substance violations. At issue is the admissibility of the testimony of a government agent as to statements of an alleged coconspirator naming Rosales as his source of drugs. We reverse. 2 * Rosales was indicted along with two others for violating 21 U.S.C. §§ 841 (a) (1) and 846 by distributing and conspiring to distribute cocaine. Pursuant to plea negotiations, his codefendants pleaded guilty to different charges, and the…

The United States appeals from a ruling made sua sponte by the district court suppressing evidence sought to be introduced against Rosales at his trial for controlled substance violations. At issue is the admissibility of the testimony of a government agent as to statements of an alleged cocon-spirator naming Rosales as his source of drugs. We reverse.

I

Rosales was indicted along with two others for violating 21 U.S.C. §§ 841 (a)(1) and 846 by distributing and conspiring to distribute cocaine. Pursuant to plea negotiations, his codefendants pleaded guilty to different charges, and the indictment was dismissed as to them. In a pretrial conference, the district judge, on his own motion, raised questions about the conspiracy count against Rosales. He expressed doubts that there was sufficient evidence of the existence of a conspiracy to admit the testimony of an undercover agent as to the declarations of DelPrete, an alleged coconspirator and one of Rosales’ original codefendants. The agent’s testimony would be that Del-Prete identified Rosales as his source of cocaine. The government made an offer of proof of the evidence, independent of the disputed declarations, that it would…

dissenting:

I dissent. The question before the court is one of the admissibility of a statement of a co-conspirator under Federal Rule of Evidence 801(d). The trial court suppressed the statement on the ground that there was not sufficient evidence independent of the statement to make out a prima facie case of the existence of a conspiracy. This was a preliminary evidentiary ruling. As the majority views the case, we are asked to review a conclusion of law and not a finding of fact; thus we are not confined to the clearly erroneous standard of review.

The analysis of the majority is that the offer of proof presented facts which must be taken as true and, therefore, the question before the court was one of applying these facts to a legal standard, to determine whether the undisputed facts were sufficient to constitute a prima facie case. The majority contends that this is the same decision that the trial court must make when it rules on a motion for acquittal and is thus a question of law. This argument might be persuasive if we were writing upon a clean slate. However, we are not; and, in my opinion, the law of this circuit is clearly to the contrary. We must remember that this…