United States v. Frank Patrick Rosales

Appellant stands convicted of selling and conspiring to sell cocaine in violation of 21 U.S.C. §§ 841 (a)(1) and 846.

On trial, a government agent was permitted to testify to statements made by the one who sold him cocaine, one Del Prete who owned a bar in San Francisco. Del Prete was said to have described his source as an older man in his fifties, known as “Frank” or “Frankie,” a merchant seaman who would be leaving shortly on a voyage, and who was from the Reno area. Each of these descriptions fits appellant. Two assignments of error are made respecting admission of this testimony.

1. That there was not sufficient independent evidence of a conspiracy. This issue was decided by this court against appellant on an earlier appeal. United States v. Rosales, 584 F.2d 870 (9th Cir. 1978), That holding is now law of the case. We decline to reconsider the question.

2. That since, on trial, Del Prete asserted his Fifth Amendment right not to take the stand, appellant was deprived of his constitutional right of confrontation. The test for determining whether the confrontation clause has been violated was set forth in Dutton v. Evans, 400 U.S. 74, 88-89 , 91 S.Ct. 210 , 27 L.Ed.2d 213…