WILLIAM JOHN BOURJAILY, PETITIONER V. UNITED STATES OF AMERICA

   No. 85-6725

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Sixth Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Rules involved
   Questions presented
   Statement
   Summary of Argument
   Argument
        I. A trial court is not confined to the "independent
           evidence" in deciding whether a co-conspirator
           declaration is admissible
       II. The "preponderance of the evidence" standard
           should apply to a court'sfindings on the
           admissibility of co-conspirator declarations
      III. The Confrontation Clause does not require
           an independent assessment of the reliability
           of a co-conspirator declaration
           A. Because of co-conspirator Rule is a firmly
              rooted hearsay exception," statements admitted
              under the rule satisfy the Confrontation Clause
           B. The requirements of the co-conspirator rule afford
              substantial guarantees of reliability
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A7) is reported
at 781 F.2d 539.

                             JURISDICTION

   The judgment of the court of appeals was entered on January 15,
1986.  On March 10, 1986, Justice O'Connor extended the time within
which to file a petition for a writ of certiorari to April 15, 1986.
The petition was filed on April 15, 1986, and was granted on October
14, 1986.  The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

                            RULES INVOLVED

   Rule 104 of the Federal Rules of Evidence provides, in pertinent
part, as follows:

         (a) Questions of admissibility generally.  Preliminary
      questions concerning the qualification of a person to be a
      witness, the existence of privilege, or the admissibility of
      evidence shall be determined by the court, subject to the
      provisions of subdivision (b).  In making its determination it
      is not bound by the rules of evidence except those with respect
      to privileges.

   Rule 801 of the Federal Rules of Evidence provides, in pertinent
part, as follows:

         (d) Statements which are not hearsay.  A statement is not
      hearsay if --

                      * * * * *

         (2) * * * The statement is offered against a party and is * *
      * (E) a statement by a coconspirator of a party during the
      course and in furtherance of the conspiracy.

                          QUESTIONS PRESENTED

   In order to admit a co-conspirator declaration against a defendant
under Fed. R. Evid. 801(d)(2)(E), the court must find (1) that a
conspiracy existed, (2) that the declarant and the defendant were
members of the conspiracy, and (3) that the declaration was made in
the course of and in furtherance of the conspiracy.  This case
presents the following questions:

   1. Whether, in determining if the conspiracy existed and if the
defendant and the declarant were members of the conspiracy, the court
may consider the declaration itself or must base its determination
solely on independent evidence;

   2. What quantum of proof is necessary to support the findings the
court must make under Rule 801(d)(2)(E);  and

   3. Whether the Confrontation Clause of the Sixth Amendment requires
a court, before admitting a co-conspirator declaration, to make a
separate determination that the declaration is reliable.

                               STATEMENT

   After a jury trial in the United States District Court for the
Northern District of Ohio, petitioner was convicted of conspiring to
distribute cocaine, in violation of 21 U.S.C. 846, and possessing
cocaine with intent to distribute it, in violation of 21 U.S.C.
841(a)(1).  He was sentenced to concurrent terms of 15 years'
imprisonment and to a three-year special parole term on the
substantive count.  The court of appeals affirmed (Pet. App. A1-A7).

   1. The evidence at trial showed that during the second week of May
1984, FBI informant Clarence Greathouse made arrangements to transfer
one kilogram of cocaine to petitioner's co-defendant, Angelo Lonardo.
/1/ According to their agreement, Lonardo was to select people to
distribute the cocaine.  On May 12, 1984, Greathouse met with Lonardo
to discuss the cocaine sale. In the ensuing conversation, which
Greathouse tape-recorded on a body recorder, Lonardo said that he had
talked to "the people" and that they were "interested." Greathouse
asked whether Lonardo's "people" would be willing to pay for the
cocaine "up front" or whether they preferred "to wait till it's here."
Lonardo replied that they would handle the transaction as they had in
the past.  He stated that his contacts did not know that Greathouse
was his supplier, and he added that he wanted to keep it that way.
Greathouse demanded one half of the purchase price before delivery,
and he requested that each of Lonardo's buyers purchase at least
one-fourth of a kilogram.  Lonardo agreed and said that he would let
Greathouse know where the cocaine sale would take place.  Pet. App.
A3;  J.A. 13, 88-89, 99-101;  Tr. 10-19, 21, 24-26, 33;  GX 1C.

   On May 17, Greathouse told Lonardo that "nothing (had) matured"
yet, but that he "planned * * * a flight" three days from then, and
that "everything is set on that end" (J.A. 117;  GX 3B).  Greathouse
said that he needed some money to take with him and that "everything
else will be fronted to me" (J.A. 118;  GX 3B).  Lonardo responded
that he would "work on it" and "see what (he could) do" (ibid.).  On
May 19, Lonardo called Greathouse on his paging beeper;  when
Greathouse returned the call, Lonardo advised Greathouse that he had
some money for him, and he told Greathouse to come pick it up.
Shortly after the call, Greathouse met Lonardo at a Cleveland
restaurant, and Lonardo gave him $1,000.  Pet. App. A3;  J.A. 121-122;
 Tr. 39, 43-46, 49-54;  GX 5B.

   Greathouse and Lonardo had several more conversations about the
cocaine transaction during the following week.  On May 24, Greathouse
met with Lonardo and told him that the cocaine had arrived.  Lonardo
said that he would recontact the prospective buyers, but he explained
that he had told his confederates that the deal was off because of a
misunderstanding about the purchase price.  Pet. App. A3;  J.A.
133-135;  Tr. 68-84;  GXs 7B, 9B, 10B, 11B.

   In a tape-recorded telephone conversation on May 25, Lonardo told
Greathouse that he had a "gentleman friend" with him who "had some
questions" to ask Greathouse about "the trees" -- a code word
referring to the cocaine.  Lonardo indicated that he wanted Greathouse
to call back immediately.  J.A. 137;  Tr. 83-86, 87;  GX 12B.  The
second call was not recorded, but an FBI agent who was with Greathouse
at the time listened to both sides of the conversation.  In the course
of that call, Greathouse spoke directly with Lonardo's "gentleman
friend." J.A. 23-25, 37-38;  Tr. 103-105, 753-755.  The two discussed
the quality of the cocaine and how the payment for the cocaine would
be made.  Lonardo's "friend" told Greathouse that he would pay $15,000
"up front" and the balance of the $31,000 purchase price after the
cocaine was tested.  J.A. 24;  Tr. 104.

   After speaking with Lonardo's "friend," Greathouse once again spoke
with Lonardo to arrange for the delivery of the cocaine.  J.A. 25-26,
138-140;  Tr. 110-111;  GX 13B.  Lonardo told Greathouse to bring the
cocaine to the Hilton Hotel on Rockside Road in Cleveland and to park
his car behind the hotel.  Lonardo said he would be waiting in the
lobby, and that Greathouse was to bring him the keys to the car.
Lonardo said that his "friend" would be "out in his car" and that
after receiving Greathouse's keys Lonardo would "just go over and you
know." Pet. App. A3;  J.A. 30, 139-140;  GX 13B.

   Thereafter, FBI agents placed four quarter-kilogram bags of cocaine
in Greathouse's car and had him drive to the Hilton Hotel.  At the
time that had been arranged for the transaction, petitioner was seen
sitting in a car in the hotel parking lot.  He was facing away from
the hotel and was parked in an area apart from the other parked cars.
Petitioner was subsequently observed driving around the parking lot,
examining the parked cars.  Pet. App. A3-A4.

   When Greathouse arrived, he entered the Hilton and gave Lonardo the
keys to his car.  Lonardo walked to Greathouse's car, circled it, and
then walked to petitioner's car, where he spoke with petitioner.
Lonardo then walked back to Greathouse's car and removed the cocaine.
As Lonardo approached Greathouse's car, petitioner turned his car
around and drove it to a point within two or three parking spaces of
Greathouse's car.  Lonardo took the cocaine from Greathouse's car,
carried it to petitioner's car, and handed it to petitioner.  At that
point, the agents arrested petitioner and Lonardo and recovered the
cocaine from petitioner's car.  Inside a leather bag that was secreted
under the passenger seat of petitioner's car, the agents found $19,000
in cash, together with a receipt bearing petitioner's name.  The
agents found an additional $2,000 in $100 bills in the glove
compartment, along with petitioner's driver's license.  On
petitioner's person, the agents found a paging beeper.  Pet. App. A4;
J.A. 27-30, 41-46, 53, 56-62;  Tr. 113-121, 767-779, 807, 877-893.

   At the conclusion of the government's case in chief, the district
court addressed the question of the admissibility of Lonardo's
out-of-court statements against petitioner.  J.A. 66-75;  Tr. 973-989.
 The court found that the government had established by a
preponderance of the evidence that a conspiracy existed, that Lonardo
and petitioner were members of the conspiracy, and that Lonardo's
out-of-court statements had been made in the course of and in
furtherance of the conspiracy. J.A. 75;  Tr. 989.

   2. The court of appeals affirmed (Pet. App. A1-A7).  It held,
first, that the statements Lonardo made to Greathouse had been
properly admitted against petitioner as co-conspirator declarations
under Fed. R. Evid. 801(d)(2)(E) (Pet. App. A4).  The court upheld the
district court's findings that the government had satisfied the
requirements of Rule 801(d)(2)(E) by showing, by a preponderance of
the evidence, that a conspiracy existed, that Lonardo and petitioner
were members of it, and that Lonardo's statements were made during the
course of and in furtherance of the conspiracy.  As evidence that
Lonardo and petitioner were co-conspirators, the court of appeals
relied both on Lonardo's statements to Greathouse and on petitioner's
actions in the hotel parking lot on the evening that he received the
cocaine (Pet. App. A4-A5).  Finally, the court held (id. at A5-A6)
that because Lonardo's statements satisfied the requirements of Rule
801(d)(2)(E) -- which the court of appeals determined to be a "'firmly
rooted hearsay exception'" (Pet. App. A5, quoting Ohio v. Roberts, 448
U.S. 56, 66 (1980)) -- the admission of those statements against
petitioner did not violate petitioner's rights under the Confrontation
Clause.

                          SUMMARY OF ARGUMENT

   I. It is well settled that before admitting a coconspirator
declaration against a defendant under Rule 801(d)(2)(E), the trial
court must first find that a conspiracy existed and that the declarant
and the defendant were members of the conspiracy.  The first issue
presented in this case is whether the trial court must make that
decision based solely on evidence independent of the statement itself.
 In Glasser v. United States, 315 U.S. 60 (1942), this Court held that
co-conspirator statements are admissible against a defendant "only if
there is proof aliunde that he is connected with the conspiracy.
Otherwise, hearsay would lift itself by its own bootstraps to the
level of competent evidence." 315 U.S. at 74-75 (citations omitted).

   The rule against "bootstrapping" originated in an evidentiary
system that assigned to juries -- and not courts -- the task of
deciding the admissibility of co-conspirator declarations.  Under Rule
104(a) of the Federal Rules of Evidence, however, the admissibility
decision is now clearly committed to the court.  Accordingly, there is
no continuing need for a prophylactic rule of the sort that barred
jurors from considering the co-conspirator statement itself while they
were deciding its admissibility.  Indeed, Rule 104(a) specifically
authorizes the trial judge, in making decisions on the admission of
evidence, to consider all relevant, non-privileged evidence bearing on
the factual and legal questions that the court must address.  To be
sure, statements made by a co-conspirator regarding the existence and
composition of a conspiracy may, in particular cases, be less
probative than other evidence bearing on those issues.  But that is a
matter that a district court can properly assess in weighing all the
relevant evidence.  It is not a reason to skew the fact-finding
process by disabling the court from giving any consideration to the
co-conspirator declaration, no matter how compelling it may be as may
be as evidence of the existence and composition of a conspiracy in a
particular case.

   Even if the Court concludes that the "bootstrapping" rule should be
preserved, the Court should make clear that the rule does not prohibit
the district court from considering the co-conspirator declarations at
all, but only from considering the hearsay portions of those
declarations.  That is, if a particular co-conspirator declaration is
not an assertion offered to prove the truth of the matter asserted, or
if the declaration is admissible under some other exemption from or
exception to the rule against hearsay, the district court should be
free to consider the declaration in determining whether the remaining,
hearsay portions of the declaration should be admitted.  In this case,
for example, most of Lonardo's declarations are either not assertions
at all, or are statements of his intentions with regard to future
acts, which would be admissible under the "state of mind" exception to
the hearsay rule, Fed. R. Evid. 803(3).  Even if this Court decided to
preserve the "bootstrapping" rule, the district court could properly
consider those portions of Lonardo's declarations in determining
whether Lonardo and petitioner were co-conspirators.  And taking those
portions of Lonardo's declarations into account, there can be no doubt
that the district court's ruling on that issue was correct.

   II. The second issue presented in this case concerns the standard
of proof that a district court should apply in ruling on the
admissibility of co-conspirator statements.  We agree with petitioner
that "preponderance of the evidence" is the proper standard.  This
Court has repeatedly applied the preponderance standard in deciding
questions of admissibility in analogous contexts, and the rationale
for using the preponderance standard in those cases applies equally
here.

   III. The third question presented in this case is whether the
Confrontation Clause requires a trial court to conduct a separate
inquiry into the reliability of a co-conspirator declaration, even
after the declaration has been found admissible under Fed. R. Evid.
801(d)(2)(E).  We believe that no such inquiry is required.  The
co-conspirator declaration rule, embodied in Rule 801(d)(2)(E), is a
"firmly rooted" exception to the rule against hearsay;  under this
Court's decisions, statements embraced by that exception are therefore
sufficiently reliable to satisfy Confrontation Clause concerns.  The
prerequisites to admissibility contained in Rule 801(d)(2)(E) already
ensure that statements admitted under the rule will be sufficiently
reliable to justify their submission to the jury.  A separate
reliability inquiry would prove burdensome on trial and appellate
courts without significantly promoting the purposes served by the
Confrontation Clause.

                               ARGUMENT

 I. A TRIAL COURT IS NOT CONFINED TO THE "INDEPENDENT EVIDENCE" IN
DECIDING WHETHER A CO-CONSPIRATOR DECLARATION IS ADMISSIBLE.

   In Glasser v. United States, 315 U.S. 60 (1942), this Court stated
that co-conspirator statements are admissible against a defendant
"only if there is proof aliunde that (the defendant) is connected with
the conspiracy.  Otherwise, hearsay would lift itself by its own
bootstraps to the level of competent evidence." 315 U.S. at 74-75.
/2/ Relying on Glasser, a majority of the courts of appeals have held
that in deciding whether a declarant and defendants are
co-conspirators -- the inquiry required by Fed. R. Evid. 801(d)(2)(E)
-- a trial court may consider only the evidence independent of the
co-conspirator statement itself.  /3/

   The first question presented in this case is whether the
"bootstrapping rule" has any continuing vitality in light of Rule
104(a) of the Federal Rules of Evidence.  Rule 104(a) provides that
courts, not juries, are to make determinations of admissibility, and
that in making those determinations, courts are not bound by the rules
of evidence, except for those relating to privilege.  We submit that
the bootstrapping rule was the product of a system in which the task
of determining the admissibility of co-conspirator declarations was
given to juries, and that the rule cannot be justified in a system in
which that task is given to the court.

   1. The reason for the bootstrapping rule is not easy to discern.
The Glasser opinion merely recited the rule, without suggesting any
justification for it.  From the early authorities that have been cited
in support of the rule, however, it appears to have been based, at
least in part, on the allocation to juries of the responsibility for
deciding whether to admit co-conspirator declarations.

   At the time the bootstrapping rule developed, the task of
determining the admissibility of co-conspirator declarations was
routinely assigned to juries, not to judges.  Thus, juries were
typically instructed that in order to consider co-conspirator
declarations against a defendant, the jury -- not the trial court --
would first have to decide whether the declarant was part of the
conspiracy with the defendant.  Because juries were not permitted to
consider incompetent evidence, the courts instructed the jurors that
they had to make the finding of conspiracy before they could consider
the co-conspirator declarations.  Only after the jury found, from
competent non-hearsay evidence, that the defendant and the declarant
were members of the conspiracy would the co-conspirator declarations
in turn become competent evidence that could be considered against the
defendant for other purposes.  The courts summarized this point by
instructing juries that they had to make the finding of conspiracy
based on evidence independent of the co-conspirator declarations.  See
Hauger v. United States, 173 F. 54, 57 (4th Cir. 1909);  United States
v. Richards, 149 F. 443, 452-453 (D. Neb. 1906);  United States v.
Goldberg, 25 F.Cas. 1342, 1347 (E.D. Wis. 1876) (No. 15,223);  United
States v. McKee, 26 F.Cas. 1107, 1110 (E.D. Mo. 1876) (No. 15,686).
/4/

   The practice of leaving to the jury the final decision whether to
admit a co-conspirator statement into evidence persisted until the
enactment in 1975 of the Federal Rules of Evidence.  Indeed, as late
as its 1977 edition, the leading treatise on federal jury instructions
continued to recommend a charge instructing the jury that it could
consider co-conspirator statements against someone other than the
declarant only if it first found beyond a reasonable doubt that a
conspiracy had been proved.  See 2 E. Devitt & C. Blackmar, Federal
Jury Practice and Instructions Section 27.06, at 13 (3d ed. 1977).
This Court's 1974 decision in Anderson v. United States, 417 U.S. 211,
involved just such a jury instruction (417 U.S. at 221), and the
circuit courts routinely endorsed that instruction as well.  See,
e.g., United States v. Honneus, 508 F.2d 566 (1st Cir. 1974), cert.
denied, 421 U.S. 948 (1975);  United States v. Apollo, 476 F.2d 156
(5th Cir. 1973);  see also 1 J. Weinstein & M. Berger, Weinstein's
Evidence Paragraph 104(05), at 104-40 & n.9 (1986).

   In this historical context, the bootstrapping rule is easily
understood as an exclusionary device intended to ensure that juries
would not rely on incompetent evidence in making the admissibility
decision.  See United States v. Martorano, 561 F.2d 406, 408 (1st Cir.
1977), cert. denied, 435 U.S. 922 (1978);  United States v.
Petrozziello, 548 F.2d 20, 22-23 & n.2 (1st Cir. 1977);  United States
v. James, 590 F.2d 575, 587 (5th Cir.) (en banc), (Tjoflat, J.,
concurring specially) cert. denied, 442 U.S. 915 (1979).  As long as
juries decided the admissibility of co-conspirator statements, there
was a logical basis to apply a rule that confined the scope of their
decisionmaking authority.

   2. Rule 104(a) of the Federal Rules of Evidence has now abolished
the evidentiary system in which the bootstrapping rule arose.  Under
Rule 104(a), the decision whether to admit evidence is vested
exclusively in the trial court.  In making that decision, moreover,
the rule explicitly authorizes the court to consider all relevant,
nonprivileged evidence.  /5/

   By enacting Rule 104(a), Congress swept aside the technical
exclusionary rules of evidence, which were unsuited to the judicial
function.  The language Congress chose to express its intention was
broad and unambiguous.  The plain terms of Rule 104(a) state that in
making admissibility decisions the trial judge "is not bound by the
rules of evidence" except for those relating to privilege.  /6/
Privileged material is the only evidence that is off-limits.  No other
exceptions -- such as the rule forbidding the consideration of
"bootstrapped" evidence -- are listed.  Under Rule 104(a) there is
thus no reason for a trial judge to refrain from considering a
co-conspirator statement in deciding the preliminary question of
admissibility under Rule 801(d)(2)(E).  Accord Bergman, The
Coconspirators' Exception:  Defining The Standard of the Independent
Evidence Test Under the New Federal Rules of Evidence, 5 Hofstra L.
Rev. 99, 105-106 (1976).

   This reading of the plain terms of Rule 104(a) is confirmed by the
accompanying notes of the Advisory Committee.  /7/ The Advisory
Committee made clear that under Rule 104(a) the trial judge is free to
rely on any relevant, non-privileged material in making admissibility
decisions.  The exclusionary rules of evidence, the Advisory Committee
stated, do not limit the judge in determining whether evidence should
be admitted (Fed. R. Evid. 104(a) advisory committee note, 28 U.S.C.
App. at 681):

         If the question is factual in nature, the judge will of
      necessity receive evidence pro and con on the issue.  The rule
      provides that the rules of evidence in general do not apply to
      this process.  McCormick Section 53, p. 123, n.8, points out
      that authorities are "scattered and inconclusive," and observes:

         "Should the exclusionary law of evidence, 'the child of the
      jury system' in Thayer's phrase, be applied to this hearing
      before the judge?  Sound sense backs the view that it should
      not, and that the judge should be empowered to hear any relevant
      evidence, such as affidavits or other reliable hearsay."

   The Advisory Committee specifically noted that the trial judge
would often need to consider otherwise hearsay portions of a statement
in determining the statement's admissibility (ibid.):

      An item, offered and objected to, may itself be considered in
      ruling on admissibility, though not yet admitted in evidence.
      Thus the content of an asserted declaration against interest
      must be considered in ruling whether it is against interest.
      /8/

   This court considered the implications of Rule 104(a) in United
States v. Matlock, 415 U.S. 164 (1974), and concluded that trial
judges are not bound by the rules of evidence in deciding whether to
admit evidence.  The issue in Matlock was whether the police had
obtained lawful consent to search the defendant's premises from Mrs.
Graff, the woman with whom defendant lived.  At a hearing, the
government offered evidence, chiefly the hearsay declarations of Mrs.
Graff, that Mrs. Graff and the defendant jointly occupied the
premises.  The district court held that those hearsay statements were
not admissible to prove that Mrs. Graff had the authority to consent
to the search.  415 U.S. at 167-169.

   This Court reversed.  The Court noted, first, that the rules of
evidence normally applicable in criminal trials "do not operate with
full force at hearings before the judge to determine the admissibility
of evidence." 415 U.S. at 172-173 (footnote omitted).  That principle,
the Court observed, was confirmed by Rule 104(a) of the Federal Rules
of Evidence, which at that time had been transmitted to Congress but
had not been enacted.  /9/ The Court cited with approval the view that
when the judge is considering the admissibility of evidence, the
exclusionary rules -- other than the rules of privilege -- should not
be applicable.  In that setting, "the judge should receive the
evidence and give it such weight as his judgment and experience
counsel." 415 U.S. at 175.  /10/

   Applying those principles, the Court determined that Mrs. Graff's
statements were sufficiently reliable to be considered as evidence of
her authority to consent to the search.  The Court observed that there
was no question that the statements had been made and nothing in the
record to suggest that the statements were untrue.  415 U.S. at 175.
The statements "were consistent with one another" and were
"corroborated by other evidence received at the suppression hearings."
Id. at 176.  Moreover, the Court noted, "cohabitation out of wedlock
would not seem to be a relationship that one would falsely confess."
The Court pointed out that cohabitation out of wedlock was a crime in
Wisconsin and that Mrs. Graff'statements were thus "against her penal
interest" and "carried their own indicia of reliability." Ibid.

   The Matlock case affirms the basic principle that the trial judge
should be able to consider all relevant, nonprivileged evidence in
deciding admissibility questions.  Moreover, the Court in Matlock
identified the factors a trial judge should consider in deciding
whether to rely on a particular statement, or other piece of evidence,
in making an admissibility decision.  Those factors include:  (1)
whether the trial judge is satisfied that the statement was made (415
U.S. at 175);  (2) whether the statement is internally consistent (id.
at 176);  (3) whether the statement is corroborated by other evidence
in the case (ibid);  and (4) whether, in light of the declarant's
panel interest (or like factor), the statement bears "indicia of
reliability" (ibid.).

   The same kind of analysis should govern a trial court's decision
whether to rely on the truth of a purported co-conspirator statement
in determining the admissibility of the statement.  Hearsay statements
of all kinds must, of course, be scrutinized with care to determine
whether they are sufficiently probative for a court to accord them any
weight in making the findings required by Rule 801(d)(2)(E).  As the
Court observed in Matlock, however, some hearsay is more probative
than other, and a district court can be trusted to discount particular
items of hearsay as the circumstances dictate.

   Petitioner does not suggest that the bootstrapping rule precludes
the trial court from considering all hearsay statements.  Nor could
he, since the bootstrapping rule, by its terms, forbids a court only
from relying on the particular hearsay statement that the government
is seeking to have admitted.  Thus, petitioner concedes (Br. 32) that
a court could consider other hearsay, such as the statement of a third
party, in determining whether the defendant and the declarant were
members of the conspiracy.  Presumably, the bootstrapping rule would
not even foreclose the court from considering other hearsay statements
of the same declarant, separate from the ones that the government is
seeking to have admitted.  Yet if that is so, it is difficult to
discern any continuing purpose for the bootstrapping rule, since there
is no reason to believe that other hearsay statements are inherently
more reliable than the hearsay statement under consideration for
admission.

   Rather than adhering to the bootstrapping rule, which is supported
more by metaphor than by logic, the Court should apply Rule 104(a)
according to its plain language and treat the admission of
co-conspirator declarations the same as the admission of any other
kind of evidence.  If, after assessing the co-conspirator statement,
the trial court finds that the statement is reliable, the court should
be permitted to rely on the statement, along with any other pertinent
evidence, in deciding whether the requirements of Rule 801(d)(2)(E)
have been met.

   3. Petitioner acknowledges (Br. 26-27) that the plain terms of Rule
104(a) would appear to abolish the bootstrapping rule, and he concedes
(Br. 25-26) that the court can consider the co-conspirator statement
itself in determining whether the statement was made during and in
furtherance of the conspiracy.  He contends, however, that Rule 104(a)
should not apply to the question of the existence of the conspiracy.
This is so, he suggests (Br. 29-30), because the Rules of Evidence
were intended to preserve the co-conspirator exception in its
pre-rules form, including the traditional requirement that the finding
that the defendant and the declarant were members of the same
conspiracy had to be based on independent, non-hearsay evidence.

   The answer to this contention is that the Rules of Evidence
preserved the substance of the co-conspirator exception but changed
the manner in which the rule is to be administered.  Rule 801(d)(2)(E)
still requires proof that the defendant and the declarant were members
of the same conspiracy, and that the declarant was made during and in
furtherance of the conspiracy.  What was changed in the new rules was
that it is now the court, not the jury, that makes these findings.
And with that change, it follows that, as in the case of other
evidentiary matters, the court is permitted to consider all relevant,
nonprivileged evidence bearing on the issue of admissibility.

   Petitioner suggests (Br. 29) that to permit courts to consider the
statements themselves in determining their admissibility will lead to
the admission of more unreliable evidence.  That is true in only one
sense:  any rule that restricts the kind of evidence that a court can
consider in determining whether the proponent of evidence has met his
burden will result in the admission of less evidence;  a reduction in
the amount of evidence that is admitted will, of course, mean a
reduction in the amount of unreliable evidence that is admitted.  But
it is by no means clear that co-conspirator declarations are more
unreliable as a class than other evidence that courts typically look
to in determining the admissibility of such statements.  Thus, a
particular statement by an alleged co-conspirator may have the
inescapable ring of truth and be overwhelmingly corroborated.  Yet, as
petitioner would have it, a court may not consider that statement in
determining whether the declarant and the defendant were members of a
conspiracy.  On the other hand, according to petitioner, a court may
consider, without restriction, much more equivocal physical evidence
in determining the existence and nature of the conspiracy.  It is hard
to find a justification for a rule that can have the effect of
distorting the fact-finding process by excluding some of the most
probative evidence and forcing the courts to look to evidence that may
be less reliable.

   The irrationality of the scheme proposed by petitioner is
underscored by the facts of this case.  Lonardo's statements that his
"gentleman friend" was with him at the telephone and would be paying
$15,000 for the cocaine were immediately corroborated by the words of
the "gentleman friend" on the telephone, by Lonardo's actions at the
time of the transaction, and by petitioner's conduct in the hotel
parking lot, where he accepted the cocaine and was arrested in
possession of just over $15,000 in cash.  Moreover, Lonardo's
statements, which were made in the course of arranging an imminent
drug transaction, were highly likely to be accurate, since Lonardo had
every incentive to ensure that the transaction went smoothly.  Thus,
Lonardo's statements during his conversations with Greathouse
constituted compelling, well corroborated, and reliable evidence of
the existence of a conspiracy between himself and petitioner.  On the
other hand, the "independent" evidence -- obtained through
surveillance and seized from petitioner following his arrest -- while
still strong evidence of the conspiracy, was not nearly as compelling
as Lonardo's statements themselves.  There is no reason that a court
should be forced to ignore the powerful evidence provided by the
statements themselves in favor of exclusive reliance on the less
compelling "independent" evidence in making the findings on which the
admission of the evidence depends.

   Finally, petitioner argues (Br. 21-23) that the Court should retain
the bootstrapping rule because that choice "will require the smallest
change in the approach of (the) * * * lower federal courts" (Br. 23).
There are several answers to this claim.  First, several of the courts
of appeals have evidently adhered to the bootstrapping rule simply
because they felt bound by this Court's decision in Glasser, in the
absence of a clear signal from this Court that the language in Glasser
has not survived the adoption of Rule 104(a).  See United States v.
James, 590 F.2d at 581;  United States v. Bell, 573 F.2d 1040, 1044
(8th Cir. 1978);  United States v. Petrozziello, 548 F.2d at 23 n.2.
The acquiescence of lower courts in a prior decision of this Court
should be entitled to no persuasive weight as a justification for the
earlier rule.

   Moreover, the "approach" of the circuit courts is not as clear-cut
as petitioner suggests.  The First and Sixth Circuits have held that
Rule 104(a) overrules the bootstrapping rule.  See, e.g., United
States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979), cert. denied, 444
U.S. 1074 (1980);  United States v. Martorano, 561 F.2d 406, 408 (1st
Cir. 1977), cert. denied, 435 U.S. 922 (1978).  See also United States
v. Drougas, 748 F.2d 8, 29 (1st Cir. 1984).  The Second Circuit, while
applying the bootstrapping rule, has intimated in recent decisions
that Rule 104(a) may require a different result.  See, e.g., United
States v. DeJesus, 806 F.2d 31, 34 (1986);  United States v. Cicale,
691 F.2d 95, 103 n.3 (1982), cert. denied, 460 U.S. 1082 (1983).  Two
other circuits that observe the bootstrapping rule have noted, but not
resolved, the apparent conflict between that rule and Rule 104(a).
See United States v. Jackson, 627 F.2d 1198, 1215-1216 n.34 (D.C. Cir.
1980);  United States v. Santiago, 582 F.2d 1128, 1133 n.11 (7th Cir.
1978).  /11/

   Only three circuits, as far as we can tell, have expressly held
that Rule 104(a) does not overrule the bootstrapping rule, but none of
the three has provided a convincing rationale for that conclusion.
The Fifth Circuit adhered to the bootstrapping rule in United States
v. James, supra, but it did so without offering a reason.  See 590
F.2d at 581.  We believe that the extensive and well-considered
concurring opinion of Judge Tjoflat (id. at 584-594) has much the
better of the argument.  The Third Circuit reached the same result, on
the ground that without a bootstrapping rule defendants would be
exposed to "idle chatter" and "inadvertently misreported and
deliberately fabricated evidence." In re Japanese Electronic Products
Antitrust Litigation, 723 F.2d at 261 (citation omitted).  The Eighth
Circuit took the same position.  It stated, without supporting
analysis, that the bootstrapping rule is "an important safeguard."
United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978).  This
array of views hardly constitutes a uniform and persuasive line of
lower court authority in favor of the rule.  In sum, the lower court
decisions, responding to the perceived compulsion of language in this
Court's decision in Glasser, have accorded too little respect to the
experience of trial judges and have contravened the considerable
discretion intentionally given to trial courts under Rule 104(a).

   4. If the Court agrees with petitioner that the bootstrapping rule
should be retained, the Court should make clear that the rule applies
only to the hearsay components of the co-conspirator declarations
under consideration.  When a co-conspirator statement is admissible on
other grounds -- either because it is not offered for its truth or
because it falls within a separate hearsay exception or exemption --
the bootstrapping rule does not apply.  In the present case, nearly
all of the co-conspirator statements offered against petitioner were
admissible independent of Rule 801(d)(2)(E).  The trial court was
therefore correct in relying on those co-conspirator statements in
deciding whether the remaining co-conspirator statements were
admissible under Rule 801(d)(2)(E).

   This Court considered a similar issue inm Anderson v. United
States, 417 U.S. 211 (1974).  The Anderson case involved a prosecution
for conspiracy to cast fictitious votes in federal, state, and local
elections.  At trial, the government offered against all of the
defendants certain out-of-court statements made by two of the
defendants.  Petitioners argued that the statements did not fall
within the co-conspirator exception since, in their view, the
conspiracy had ended before the statements were made.  Rejecting that
contention, the Court held that because the statements were not
hearsay in the first place, there was no need to decide whether the
requirements of the co-conspirator exception had been met.  The Court
observed that the prerequisites of the co-conspirator exception are
only of concern where "the declaration would otherwise be hearsay."
417 U.S. at 219.

   In Anderson, co-conspirator statements, admissible as nonhearsay,
were used as evidence of the conspiracy charged in the indictment.
There is no reason to take a different view when the inquiry is
whether there is sufficient proof of the existence and membership of a
conspiracy to warrant a finding of admissibility under Rule
801(d)(2)(E).  Where a co-conspirator statement is admissible on some
basis other than Rule 801(d)(2)(E) itself, a trial court should not
shrink from using that statement to support a finding that the
prerequisites of Rule 801(d)(2)(E) have been satisfied.

   This principle has been widely recognized by the courts of appeals.
 In finding sufficient "independent" evidence of the conspiracy,
courts have relied, for example, on co-conspirator statements that
they found admissible as nonassertions and therefore not "statements"
under Rule 801(a) (see, e.g., United States v. Perez, 658 F.2d 654,
659 (9th Cir. 1981));  co-conspirator statements that constituted
adoptive admissions under Rule 801(d)(2)(B) (see, e.g., United States
v. Andrus, 775 F.2d 825, 839-840 (7th Cir. 1985);  United States v.
Carter, 760 F.2d 1568, 1579-1581 (11th Cir. 1985));  co-conspirator
statements that were admissible as declarations against penal interest
under Rule 804(b)(3) (see, e.g., United States v. Dekle, 768 F.2d
1257, 1262 (11th Cir. 1985));  and co-conspirator statements that were
admissible as "state of mind" evidence under Rule 803(3) (see, e.g.,
United States v. DeJesus, 806 F.2d 31, 35 (2d Cir. 1986);  United
States v. Cicale, 691 F.2d 95, 104 (2d Cir. 1982), cert. denied, 460
U.S. 1082 (1983)).

   Co-conspirator statements often consist of warnings or orders from
one conspirator to another.  Statements of this sort are admissible
not because of the truth of the matter asserted, but because the fact
that they were made tends to prove the existence and membership of the
conspiracy.  Courts have routinely relied on co-conspirator statements
of this kind in upholding findings under Rule 801(d)(2)(E).  See,
e.g., United States v. Shepherd, 739 F.2d 510, 514 (10th Cir. 1984)
(in concluding that the prerequisites of Rule 801(d)(2)(E) were met,
court relied, in part, on orders given by one co-conspirator to
another;  held, "(a)n order or instruction is, by its nature, neither
true nor false and thus cannot be offered for its truth");  United
States v. Wiley, 519 F.2d 1348, 1350 (2d Cir. 1975), cert. denied, 423
U.S. 1058 (1976) (instructions given by one confederate to another
were "verbal acts" and thus could be relied on in making a Rule
801(d)(2)(E) finding).  See also United States v. Miller, 771 F.2d
1219, 1233 (9th Cir. 1985);  United States v. Tuchow, 768 F.2d 855,
868 (7th Cir. 1985);  United States v. Gibson, 675 F.2d 825, 834 (6th
Cir.), cert. denied, 459 U.S. 972 (1982).  /12/

   In the present case, the government relied on several
co-conspirator statements in arguing that there was sufficient proof
of the existence and membership of the conspiracy.  First, the
government cited (Tr. 984) Lonardo's May 12 statement that he would
"try to contact some people" but that he did not want his contacts to
know who he was dealing with.  Lonardo's expression of his intention
to contact other persons was admissible under Rule 803(3) as evidence
of his state of mind.  Lonardo's statement that he did not want his
contacts to know who he was dealing with is not hearsay at all:  the
mere fact that he made that statement tends to prove that a secret
operation was afoot.

   The government relied next (Tr. 985) on Lonardo's direction to
Greathouse about where to deliver the cocaine.  That was an order and
thus not a hearsay declaration at all.  The government also noted
(ibid.) that Lonardo and Greathouse reached an agreement on price.
Once again, it was the fact of agreement that was relevant to prove
the existence of the conspiracy, and that fact was not hearsay.
Finally, the government relied (Tr. 985-986) on Lonardo's May 24 and
25 instructions to Greathouse that (1) the deal would not take place
at the Sheraton Hotel but rather would be consummated at the Hilton;
(2) that once Greathouse arrived in the lobby he was to give Lonardo
his car keys;  and (3) that Lonardo's "friend" would be out in his car
and Lonardo would "just go over and, you know" (Tr. 986).  Those
statements were admissible both as state of mind evidence and as
directions whose admissibility did not turn on the truth of any of the
contents of the statements.

   The only arguably hearsay statement relied on by the government in
supporting the Rule 801(d)(2)(E) finding was Lonardo's May 25
statement in which he reported to Greathouse that his "friend" was
with him and had some questions to ask about the "trees" (Tr.
985-986).  If the bootstrapping rule is retained, that statement would
not be available to support a finding under Rule 801(d)(2)(E).  But in
light of the other evidence in the case -- both the remaining
co-conspirator statements that were independently admissible and the
non-hearsay evidence of petitioner's activities in the Hilton parking
lot before and during the cocaine transaction -- the trial court's
determination (Tr. 989) that there was proof by a preponderance of the
evidence that a conspiracy existed and that Lonardo and petitioner
were members of it could not possibly be regarded as clearly
erroneous.  /13/ Thus, even if the Court is persuaded that the
bootstrapping rule should be retained, the trial court's ruling that
the requirements of Rule 801(d)(2)(E) were met should be affirmed.

 II. THE "PREPONDERANCE OF THE EVIDENCE" STANDARD SHOULD APPLY TO A
COURT'S FINDINGS ON THE ADMISSIBILITY OF CO-CONSPIRATOR DECLARATIONS

   We agree with petitioner that the findings made by a court in
determining whether to admit evidence under Rule 801(d)(2)(E) should
be subject to the preponderance of the evidence standard.

   In the closely related context of suppression motions, this Court
has held that the preponderance standard is the correct standard for
determining the admissibility of evidence.  In Lego v. Twomey, 404
U.S. 477 (1972), a plurality of the Court held that the preponderance
standard should govern the question whether a defendant's confession
was voluntary and thus admissible at trial.  The Court observed (404
U.S. at 488) that from its "experience over (a) period of time no
substantial evidence has accumulated that federal rights have suffered
from determining admissibility by a preponderance of the evidence."
The Court could find "nothing to suggest that admissibility rulings
have been unreliable or otherwise wanting in quality because not based
on some higher standard." Ibid.

   The Court has since held that the preponderance standard applies to
determinations of the sufficiency of a consent to search (Matlock, 415
U.S. at 177-178 n.14), to the question whether evidence would have
inevitably been discovered (Nix v. Williams, 467 U.S. 431, 444 & n.5
(1984)), and, most recently, to determinations of the sufficiency of a
waiver of Miranda rights (Colorado V. Connelly, No. 85-660 (Dec. 10,
1986), slip op. 9-11).  See also United States v. Raddatz, 447 U.S.
667, 678 & n.5 (1980.)

   There is no reason to apply a different standard to the
admissibility of co-conspirator declarations.  As in the suppression
context, there is no suggestion "that admissibility rulings have been
unreliable or otherwise wanting in quality because not based on some
higher standard" (Lego, 404 U.S. at 488).  Moreover, the defendant is
amply protected at trial from the admission of possibly unreliable
evidence by the rigorous standard of proof beyond a reasonable doubt
that the government must satisfy in order to obtain a conviction.  See
United States V. Jackson, 627 F.2d 1198, 1219 (D.C. Cir. 1980);
United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978).

   The preponderance standard has been adopted by the great majority
of lower courts.  /14/ The only courts that have suggested a different
standard have adopted an apparently less exacting one -- either
"substantial" evidence or evidence sufficient to take a case to a
jury.  /15/ Those lower standards, like the "bootstrapping rule," are
vestiges from the time prior to the adoption of the Federal Rules of
Evidence, when juries were given final responsibility for ruling on
the admissibility of co-conspirator declarations.  Those standards are
therefore inconsistent with the current system in which the court has
the exclusive responsibility for determining the admissibility of
co-conspirator statements after making the preliminary findings
required by Rule 801(d)(2)(E).  See United States v. Petrozziello, 548
F.2d at 23-23.  For that reason, the district court in this case was
correct in applying the "preponderance" test that is employed in most
circuits.

 III. THE CONFRONTATION CLAUSE DOES NOT REQUIRE AN INDEPENDENT
ASSESSMENT OF THE RELIABILITY OF A CO-CONSPIRATOR DECLARATION

   The final question presented in this case is whether, after finding
a co-conspirator declaration to be admissible under Rule 801(d)(2)(E),
a court must conduct a separate inquiry to determine if the statement
carries with it sufficient indicia of reliability to satisfy the
Confrontation Clause.  We submit that such an inquiry should not be
required, because a statement that is admissible under the traditional
co-conspirator rule is sufficiently reliable to satisfy Confrontation
Clause concerns.  /16/

 A. Because The Co-Conspirator Rule Is A "Firmly Rooted Hearsay
Exception," Statements Admitted Under the Rule Satisfy the
Confrontation Clause

   In Ohio V. Roberts, 448 U.S. 56 (1980), this Court recognized (448
U.S. at 65-66) that out-of-court statements offered at trial
ordinarily must be shown to be reliable in order to satisfy the
Confrontation Clause.  The Court noted, however, that "certain hearsay
exceptions rest upon such solid foundations that admission of
virtually any evidence within them comports with the 'substance of the
constitutional protection'" (id. at 66, quoting Mattox v. United
States, 156 U.S. 237, 244 (1895)).  In a case where the evidence falls
within a "firmly rooted hearsay exception," the Court held,
"(r)eliability can be inferred without more" (448 U.S. at 66).

   The Court in Roberts identified two reasons to justify this
categorical approach to the reliability of statements admissible under
"firmly rooted" hearsay exceptions.  First, the hearsay rules and the
Confrontation Clause stem from the same historical roots and were
designed to promote similar values.  448 U.S. at 66.  As the Court put
the matter in Salinger V. United States, 272 U.S. 542, 548 (1926),
"(t)he right of confrontation did not originate with the provision in
the Sixth Amendment, but was a common-law right having recognized
exceptions.  The purpose of (the Confrontation Clause) * * * is to
continue and preserve that right, and not to broaden it or disturb the
exceptions." Second, the categorical approach "responds to the need
for certainty in the workaday world of conducting criminal trials."
Roberts, 448 U.S. at 66.  Trial courts and litigants, who work with
the rules of evidence on a daily basis, depend on "certainty and
consistency in the application of the Confrontation Clause." Id. at 73
n.12.

   The categorical approach outlined in Roberts is appropriate for
co-conspirator declarations, because the co-conspirator rule is a
"firmly rooted" exception to the rule against hearsay.  As we
discussed at length in our brief in United States v. Inadi, No.
84-1580 (Mar. 10, 1986), the rule allowing the admission of
co-conspirator declarations had already emerged in England at the time
of the adoption of the Sixth Amendment.  /17/ In this country, the
co-conspirator rule was adopted by the Supreme Court of New Jersey in
1791, the very year in which the Bill of Rights was ratified.  Patton
v. Freeman, 1 N.J.L. 113, 115 (1791).  Similar decisions were soon
handed down by the highest courts of Vermont, Virginia, and
Pennsylvania.  Broughton v. Ward, 1 Tyl. 137, 139 (Vt. 1801);  Claytor
v. Anthony, 27 Va. (6 Rand.) 285, 300-301 (1828);  Reitenbach v.
Reitenbach, 1 Rawle 362, 365 (Pa. 1829).

   This Court first recognized the co-conspirator exception more than
a century and a half ago in American Fur Co. v. United States, 27 U.S.
(2 Pet.) 358, 364-365 (1829).  Since then, the Court has repeatedly
reaffirmed it.  /18/ Rule 801(d)(2)(E), which was proposed by this
Court and adopted without change, codifies the co-conspirator rule in
precisely the form recognized at common law and in the earliest
evidence treatises.  See, e.g., 1 S. Greenleaf, A Treatise on the Law
of Evidence Section 184a, at 304-306 (16th ed. 1899);  2 F. Wharton,
Wharton's Evidence in Criminal Cases Section 699, at 1183 (11th ed.
1935).  See Note, Federal Rule of Evidence 801(d)(2)(E) and the
Confrontation Clause:  Closing the Window of Admissibility for
Co-conspirator Hearsay, 53 Fordham L. Rev. 1291, 1297 n.39 (1985).
Moreover, almost every state has adopted the co-conspirator rule,
either by statute or caselaw, in a form essentially the same as the
common-law rule and Rule 801(d)(2)(E).  /19/

   The Court's cases dealing with the co-conspirator exception confirm
that -- consistent with the categorical approach outlined in Roberts
-- there is no warrant for subjecting admissible co-conspirator
declarations to further scrutiny under the Confrontation Clause.  None
of the many cases dealing with the co-conspirator exception has
suggested that evidence admissible under that exception may
nonetheless fail to satisfy the requirements of the Sixth Amendment.
In fact, in the one instance in which such a confrontation claim was
made, the Court readily dismissed it.  In Delaney v. United States,
263 U.S. 586 (1924), a defendant challenged the admission of a
co-conspirator statement, in part on Confrontation Clause grounds.
The Court acknowledged that some hearsay may run afoul of the right to
confrontation (263 U.S. at 590).  /20/ But co-conspirator statements,
the Court held, are "competent and within the ruling of the cases"
when they are made "during the progress of the conspiracy." (ibid).

   More recently, in United States v. Inadi, supra, the Court applied
the categorical approach to a claim that the Confrontation Clause
requires the government either to produce the co-conspirator declarant
or to show that he is unavailable.  Concluding that the benefits of
such a rule would be slight and the burdens substantial, the Court
declined to require a showing of the declarant's unavailability as a
prerequisite to the admission of co-conspirator declarations in any
case, even though live testimony from the declarant might be valuable
in particular instances.  Inadi, slip op. 11-12.

   This Court's decision in Dutton v. Evans, 400 U.S. 74 (1970), does
not undermine the categorical approach or support the proposition that
a separate reliability inquiry is necessary in cases involving
co-conspirator declarations.  In Dutton, the Court considered a
statement that had been admitted under a novel variant of the
traditional co-conspirator rule.  The state co-conspirator exception
at issue in Dutton permitted the admission of a statement made by a
conspirator after the conspiracy had ended.  The plurality upheld the
admission of the statement after determining that it bore "indicia of
reliability" (id.at 89) and that the defendants could not have
benefited significantly from cross-examining the declarant (ibid.).
/21/

   The plurality in Dutton was at pains to point out that its careful
scrutiny of the co-conspirator statement in that case was triggered by
the unusual nature of the state's hearsay rule.  The plurality opinion
made it clear that it did not mean to "require a constitutional
reassessment of every established hearsay exception" (400 U.S. at 80);
 in fact, the Court specifically noted that it was not "question(ing)
the validity of the co-conspirator exception applied in the federal
courts" (ibid.).

   Petitioner seeks to minimize the degree of his disagreement with
this analysis by acknowledging (Br. 35) that evidence that meets the
requirements of Rule 801(d)(2)(E) should ordinarily satisfy the
Confrontation Clause as well.  He contends, however, that there may be
"unusual cases" (Br. 37) in which a court should conduct a separate
reliability inquiry.  /22/ Those "unusual cases," petitioner suggests,
will be "those in which a defendant specifically objects on
Confrontation Clause grounds and articulates reasons why
co-conspirator statements are not only crucial in the case, but also
are unusually unreliable" (Br. 36).

   Contrary to petitioner's prognosis, we doubt that such claims would
be rare.  As long as there is some prospect of excluding damaging
evidence on Confrontation Clause grounds, defense counsel will have an
incentive to press reliability claims in virtually every case.  And
there will be many such cases, since "(t)he co-conspirator rule
apparently is the most frequently used exception to the hearsay rule"
(Inadi, slip op. 11).  If the Court is to employ the categorical
approach and minimize the burden of litigation over the Confrontation
Clause issue, it will not be well served by a rule purporting to limit
Confrontation Clause claims to some loosely defined class of "rare
cases."

 B. The Requirements Of The Co-conspirator Rule Afford Substantial
Guarantees Of Reliability

   Apart from the status of the co-conspirator rule as a firmly rooted
hearsay exception, the prerequisites to admissibility in Rule
801(d)(2)(E) help ensure that evidence admitted under the rule is
reliable.  For that reason as well, there is no need for an
independent inquiry into the reliability of each statement that is
introduced as a co-conspirator declaration.  See S. Saltzburg & K.
Redden, Federal Rules of Evidence Manual 728 (4th ed. 1986).

   1. The requirement that a co-conspirator declaration be made during
the conspiracy and in furtherance of its goals support the reliability
of the declaration in several ways.  First, when conspirators are
working toward a common goal, the reliability of their statements in
furtherance of that goal is enhanced.  Experience suggests that
declarants who are reacting to, planning, or carrying out significant
events in the operation of a conspiracy are unlikely to misreport
those important events to their associates.  See United States v.
DeLuna, 763 F.2d 897, 910-911 & n.3 (8th Cir. 1985), cert. denied, NO.
85-423 (Nov. 12, 1985);  United States. V. Southland Corp., 760 F.2d
1366 (2d Cir. 1985), cert. denied, No. 84-1951 (Oct. 7, 1985);  United
States v. Ammar, 714 F.2d 238, 256-257 & n.16 (3d Cir.), cert. denied,
464 U.S. 936 (1983);  United States v. Wright, 588 F.2d at 37-38.
Moreover, because the statements must be made during the life of the
conspiracy, they are unlikely to be the product of faulty
recollection.  United States v. McGrath, 613 F.2d 361, 368 (2d Cir.
1979), cert. denied, 446 U.S. 967 (1980);  United States v. Wright,
588 F.2d at 38.

   Second, as the Court observed in Dutton v. Evans, 400 U.S. at
88-89, statements made in furtherance of an illegal enterprise are
inherently against the declarant's penal interest, which further
decreases the likelihood that the statements will be false or
mistaken.  Accord Lee, slip op. 4-5 (Blackmun, J., dissenting).  See
also United States v. Pagan, 721 F.2d 24, 31 (2d Cir. 1983);  United
States v. Perez, 702 F.2d 33, 37 (2d Cir.), cert. denied, 462 U.S.
1108 (1983);  United States v. Perez, 658 F.2d 654, 662 (9th Cir.
1981).

   Third, the "in furtherance" requirement has the effect of screening
out idle chatter, as well as inadvertently misreported and
deliberately fabricated statements, since those statements do not
advance the goals of the conspiracy.  For that reason as well, the
rule itself helps guarantee the reliability of the statements admitted
under its authority.  See 4 J. Weinstein & M. Berger, supra, Paragraph
801(D)(2)(E)(01).  See also Krulewitch v. United States, 336 U.S. 440,
443-444 (1949);  United States v. Fahey, 769 F.2d 829, 838-839 (1st
Cir. 1985);  United States v. Annunziato, 293 F.2d 373 (2d Cir. 1961).

   Fourth, the requirement that the declarant and the defendant be
shown to be co-conspirators makes it more likely that the declarant
will be well aware of the defendant's role in the enterprise and his
efforts to ensure its success.  See Dutton v. Evans, 400 U.S. at
contained in the statement will be false.

   Finally, because co-conspirator declarations, to be admissible,
must be made in the course of the conspiracy, they are in some
respects even more reliable than in-court testimony.  This Court made
that point in Inadi, where it explained that statements made while the
conspiracy is in progress "provide evidence of the conspiracy's
context that cannot be replicated, even if the declarant testified to
the same matters in court" (Inadi, slip op. 7).  For example, when the
government offers the statement of one drug dealer to another in
furtherance of an illegal conspiracy (ibid.)

      the statement often will derive its significance from the
      circumstances in which it was made.  Conspirators are likely to
      speak differently when talking to each other in furtherance of
      their illegal aims than when testifying on the witness stand.
      Even when the declarant takes the stand, his in-court testimony
      seldom will reproduce a significant portion of the evidentiary
      value of his statements during the course of the conspiracy.

   For that reason, the Court noted, co-conspirator declarations "are
usually irreplaceable as substantive evidence" (id. at 8).

   Because the requirements of Rule 801(d)(2)(E) typically ensure the
reliability of admissible co-conspirator statements, it is not
surprising that, to our knowledge, no court of appeals has ever held
that a statement otherwise admissible under the co-conspirator
exemption was too unreliable to submit to the jury.  See Note, Federal
Fule of Evidence 801(d)(2)(E) and the Confrontation Clause:  Closing
the Window of Admissibility for Co-conspirator Hearsay, 53 Fordham L.
Rev. 1291, 1315-1316 (1985).  Indeed, the courts that insist on
performing a separate reliability test rely on factors that duplicate,
to a large extent, the inquiry already required by Rule 801(d)(2)(E)
to admit a co-conspirator statement.

   For example, some courts have found indicia of reliability in the
fact that the declarant made the statements to other members of the
conspiracy.  See, e.g., United States v. DeLuna, 763 F.2d 897, 910-911
& n.3 (8th Cir. 1985), cert. denied, No. 85-423 (Nov. 12, 1985);
United States v. Ammar, 714 F.2d 238, 257 n.16 (3d Cir.), cert.
denied, 464 U.S. 936 (1983);  United States v. Fleishman, 684 F.2d
1329, 1340 (9th Cir.), cert. denied, 459 U.S. 1044 (1982).  That
factor, however, largely duplicates the requirements that the
declarant and defendant be part of the same conspiracy and that the
statement be made during the life of the conspiracy.  Other courts
have found reliability in the fact that the statements are "part of an
on-going transaction." United States v. Arbelaez, 719 F.2d 1453, 1460
(9th Cir. 1983).  That factor likewise duplicates the pendency
requirement.  The search for corroborating evidence, which some courts
find to be the best guarantee of reliability (see e.g., Ammar, 714
F.2d at 256-257;  Fleishman, 684 F.2d at 1340), largely duplicates the
trial court's obligation under Rule 801(d)(2)(E) to determine whether
the evidence establishes the prerequisites for admissibility.

   2. In considering whether the requirements of Rule 801(d)(2)(E) are
constitutionally inadequate and must be supplemented with a
reliability analysis, it is important to note that besides being the
product of a long common-law heritage, the co-conspirator rule is the
product of a intensive deliberative process that culminated in the
adoption of the Federal Rules of Evidence.  That process involved both
the rulemaking authority of this Court and the legislative power of
Congress.  The hearsay exceptions that emerged from this process were
forged with full consideration of the requirements of reliability
imposed by the Confrontation Clause.

   When it was developing the proposed Federal Rules of Evidence, the
Advisory Committee carefully considered whether each of the hearsay
exceptions possessed sufficient "guarantees of trustworthiness." Fed.
R. Evid. art. VIII advisory committee note, 46 F.R.D. 161, 325 (1969).
 The scheme was then reviewed, revised, and adopted by this Court.  56
F.R.D. 183 (1972).  After receiving the rules from this Court,
"Congress extensively reviewed (the Court's) submission, and
considerably revised it" (United States v. Abel, 469 U.S. at 49).  See
Pub. L. No. 93-595, Section 1, 88 Stat. 1926.

   Most of the changes made by Congress in the proposed rules were
designed to augment the reliability of evidence admitted at trial.
For example, Congress amended the hearsay exception for records of
regularly conducted activities, codified in Rule 803(6), to provide
"further assurance of * * * trustworthiness." H.R. Rep. 93-650, 93d
Cong., 1st Sess. (1973).  Changes designed to ensure reliability were
also made in the proposed rules governing prior inconsistent
statements (Rule 801(d)(1)(A)), see Report of the Committee on the
Judiciary, H.R. Rep. 93-650, supra, at 13;  dying declarations (Rule
804(b)(2)), see H.R. Rep. 93-650, supra;  and declarations against
interest (Rule 804(b)(3)), see ibid.

   Although Congress was clearly sensitive to the issue of
reliability, it enacted Rule 801(d)(2)(E) in precisely the form in
which this Court promulgated it.  56 F.R.D. 183, 293 (1972).  Indeed,
from the Preliminary Draft of The Proposed Rules of Evidence submitted
by the Advisory Committee of the Judicial Conference in March 1969
(see 46 F.R.D. 161, 331 (1969);  Rule 801(c)(3)(v)), through the final
version of the Rules submitted by this Court to Congress and passed by
Congress in 1975, Pub. L. No. 93-595, Art. VIII, 88 Stat. 1938, the
co-conspirator exception remained unchanged.  This was not an
oversight.  After the House adopted the co-conspirator rule in the
form promulgated by the Court, Senator McClellan proposed that the "in
furtherance" requirement be deleted and in its place two new
requirements be added:  (1) that there be independent circumstantial
guarantees of trustworthiness;  and (2) that the statement be relevant
to the character or the execution of the conspiracy itself.  Rules of
Evidence (Supplement), Hearings on the Proposed Rules of Evidence
Before the Special Subcomm. on Reform of Federal Criminal Laws of the
House Comm. on the Judiciary, 93d Cong., 1st Sess. 56, 58, 59 (1973).
Congress refused to enact these changes.  /23/ See United States v.
Harris, 546 F.2d 234, 237 & n.4 (8th Cir. 1976).  In view of
Congress's close attention to reliability concerns when it was
considering the Rules of Evidence, this Court should not lightly
conclude that Rule 801(d)(2)(E) is inconsistent in many of its
applications with the requirements of the Confrontation Clause.  See
Rostker V. Goldberg, 453 U.S. 57, 64 (1981);  see also Walters v.
National Ass'n of Radiation Survivors, No. 84-571 (June 28, 1985),
slip op. 13;  Schweiker v. McClure, 456 U.S. 188 (1982).

   3. We do not contend that Rule 801(d)(2)(E) guarantees that each
co-conspirator statement submitted to the jury will be entirely
trustworthy;  no class of evidence can meet that standard.  But to the
extent that Rule 801(d)(2)(E) fails to assure complete reliability,
any shortfall should affect only the weight of the evidence, not its
admissibility.  To require the trial judge to apply an exacting
standard of reliability to otherwise admissible co-conspirator
statements would allocate to the judge a responsibility that is
properly reserved for the jury.  See Watkins v. Sowders, 449 U.S. 341,
347 (1981);  Manson v. Brathwaite, 432 U.S. 98, 113 n.14 (1977).  As
this Court noted in Barefoot V. Estelle, 463 U.S. 880, 898 (1983),
"the rules of evidence generally extant at the federal and state
levels anticipate that relevant, unprivileged evidence should be
admitted and its weight left to the factfinder." A constitutional
claim that otherwise admissible evidence should be kept from the jury
solely on reliability grounds, the Court said, "is founded on the
premise that a jury will not be able to separate the wheat from the
chaff" (463 U.S. at 901 n.7).  The Court added that it did not "share
in this low evaluation of the adversary process" (ibid.).

   The contention that the district court should screen co-conspirator
declarations for reliability also ignores the procedures available to
a defendant to challenge co-conspirator statements that he believes to
be unreliable.  Fed. R. Evid. 806 permits a defendant to attack the
credibility of a hearsay declarant, including the marker of a
co-conspirator declaration, with any evidence that would have been
admissible if the declarant had testified as a witness.  Thus, the
defendant may offer specific instances of conduct under Fed. R. Evid.
608(b), evidence of prior convictions under Fed. R. Evid. 609, and
prior inconsistent statements under Fed. R. Evid. 613 to impeach the
credibility of the declarant.  /24/ Evidence of the declarant's bias
or inability to perceive or recall is also admissible.  See United
States v. Abel, 469 U.S. 45, 50-51 (1984).  And, of course, the
defendant is always free to argue to the jury that the declarant is
unworthy of belief.

   For these reasons, we submit that the requirements of Rule
801(d)(2)(E) ensure that declarations admitted under the rule are
sufficiently reliable to satisfy the Confrontation Clause.  To require
a more exacting review by the trial court would have the effect of
denying to the jury its primary responsibility for weighing all the
evidence in the case and rejecting that portion of the evidence that
the jury finds untrustworthy.

   4. Finally, a rule requiring a separate reliability inquiry in each
case would impose substantial burdens on the criminal justice system
without serving the Confrontation Clause's "mission (of) advanc(ing)
'the accuracy of the truth-determining process in criminal trials'"
Tennessee v. Street, 471 U.S. 409, 415 (1985) (quoting Dutton v.
Evans, 400 U.S. at 89).  It is important to bear in mind that federal
conspiracy cases do not always involve the small number of
co-conspirator statements that were offered in this case.  The trial
of a large-scale organized crime or narcotics conspiracy may involve
dozens of co-conspirators, and the prosecution may propose to offer
hundreds of co-conspirator statements.  In such cases, a "reliability
review" would impose an unjustifiable cost on the criminal justice
system by increasing the time and expense of litigating conspiracy
cases at the trial level.  In addition, it would "add() another avenue
of appellate review in these complex cases" (Inadi, slip op. 11).
That burden would be magnified because the reliability test, as
applied by the courts of appeals that require it, involves the
consideration of a wide range of factors, some rather open-ended.
See, e.g., Ammar, 714 F.2d at 256;  United States v. Perez, 658 F.2d
654, 661 (9th Cir. 1981);  DeLuna, 763 F.2d at 910;  Fleishman, 684
F.2d at 1339.

   If the costs of such a procedure were offset by real and
substantial gains to the fairness and reliability of the criminal
trial, it might be justified.  In fact, however, the rule is almost
all cost and no benefit.  In those circuits in which defendants now
have the benefit of the rule, district and appellate courts have
expended substantial energy in weighing the reliability of
co-conspirator declarations, yet no court of appeals has ever held
that evidence admitted under Rule 801(d)(2)(E) was too unreliable to
satisfy the Confrontation Clause.  We cannot imagine a justification
for an evidentiary rule that is so difficult to administer, but which,
in practice, has so little apparent impact on the evidence admitted at
trial.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   FEBRUARY 1987

   /1/ Lonardo was convicted together with petitioner, but he did not
appeal from his conviction.

   /2/ The Court also alluded to the rule against "bootstrapping" in
United States v. Nixon, 418 U.S. 683 (1974), where the Court stated,
in passing, that before the declarations of one conspirator may be
admitted against another there must be a "sufficient showing, by
independent evidence," of a conspiracy involving both the declarant
and the defendant against whom the declaration is offered.  418 U.S.
at 701 & n.14.

   /3/ See, e.g., United States v. DeJesus, 806 F.2d 31,34 (2d Cir.
1986);  In re Japanese Electronic Products Antitrust Litig., 723 F.2d
238, 261 (3d Cir. 1983), rev'd on other grounds sub nom, Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., No. 83-2004 (Mar. 26, 1986);
United States v. Monaco, 702 F.2d 860, 876 (11th Cir. 1983);  United
States v. Miranda-Uriarte, 649 F.2d 1345, 1349, (9th Cir. 1981);
United States v. Gresko, 632 F.2d 1128, 1131 (4th Cir. 1980);  United
States v. Jackson, 627 F.2d 1198, 1215-1216 n.34 (D.C. Cir. 1980);
United States v. James, 590 F.2d 575, 581 (5th Cir.) (en banc), cert.
denied, 442 U.S. 917 (1979);  United States v. Andrews, 585 F.2d 961,
966 (10th Cir. 1978);  United States v. Santiago, 582 F.2d 1128, 1133
n.11 (7th Cir. 1978);  United States v. Bell, 573 F.2d 1040, 1044 (8th
Cir. 1978).

   /4/ Pattern jury instructions throughout much of his century
ordinarily included a charge that told the jury that it could consider
co-conspirator statements only after it had determined that the charge
of conspiracy had been proved.  See, e.g., 5 A. Reid, The Law of
Instructions to Juries Section 3336, at 88-90 (3d ed. 1962);  2 H.
Randall, A. Treatise on the Law of Instructions to Juries Section
1812(3), at 2079 (1922).  The Glasser case itself was submitted to
this Court on the theory that the jury had the final word on the
admissibility of co-conspirator statements.  See Brief for the United
States, at 61 n.6, Glasser v. United States, 315 U.S. 60 (1942).

   /5/ Petitioner (Pet. 10-11) and most courts and commentators agree
that the adoption of Rule 104(a) had the effect of discarding the
system under which the jury was given the last word on the
admissibility of co-conspirator statements.  See United States v.
James, 590 F.2d 575, 579-580 (5th Cir.) (en banc), cert. denied, 442
U.S. 917 (1979);  United States v. Petrozziello, 548 F.2d 20, 22-23
(1st Cir. 1977);  accord 1 J. Weinstein & M. Berger, Weinstein's
Evidence Paragraph 104(05), at 104-39 to 104-40 (1986);  4 D. Louisell
& C. Mueller, Federal Evidence Section 427, at 331-332 (1980);  S.
Saltzburg & K. Redden, Federal Rules of Evidence Manual 735 (4th ed.
1986);  In re Japanese Electronic Products Antitrust Litigation, 723
F.2d 238, 261 (3d Cir. 1983), rev'd on other grounds, No. 83-2004
(Mar. 26, 1986).

   /6/ Fed. R. Evid. 1101(d)(1) restates the point, providing that the
rules (other than those with respect to privileges) do not apply to
"(t)he determination of questions of fact preliminary to admissibility
of evidence when the issue is to be determined by the court under rule
104."

   /7/ This Court has frequently relied on Advisory Committee Notes in
deciding the appropriate construction of rules of evidence or
procedure.  See e.g., United States v. Young, 470 U.S. 1, 15 n. 12.
(1985);  United States v. Abel, 469 U.S. 45, 51 (1984);  Barefoot v.
Estelle, 463 U.S. 880, 905 n.9 (1983);  United States v. Frady, 456
U.S. 152, 163 n.13 (1982);  Delta Air Lines v. August, 450 U.S. 346,
352 n.8, 356-360 (1981).  Deference to the Advisory Committee on the
Rules of Evidence is particularly appropriate because, as the Reporter
for the Advisory Committee has noted, the Notes "were carefully
scrutinized by the involved congressional committees and
subcommittees, and, except in those instances where superseding
changes were made in the Rules by the Congress, must be taken to
represent the thinking of that body as the equivalent of a committee
report effectively serving as the basis of legislation." Clearly,
Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L. Rev.
908, 913 (1978).

   /8/ Chief Judge Weinstein, a member of the Advisory Committee, has
written that under Rule 104(a) courts can "consider hearsay, including
the very statement in question, in determining whether the * * *
criteria for admissibility have been met," but he notes that "the
courts have been reluctant to acknowledge this power." 1 J. Weinstein
& M. Berger, supra, Paragraph 104(05), at 104-44.  Professor Cleary
has taken a contrary view, but on the ground that Rule 104(b), and not
104(a), governs the admissibility of co-conspirator statements.  See
Cleary, supra, 57 Neb. L. Rev. at 918.  That position has been
uniformly rejected by the commentators, see, e.g., 1 D. Louisell & C.
Mueller, supra, Section 29, at 208 & n.92;  S. Saltzburg & K. Redden,
supra, at 735, as well as by the courts -- including those courts that
maintain the rule against bootstrapping.  See, e.g., United States v.
James, 590 F.2d at 579-580;  In re Japanese Electronic Products
Antitrust Litigation, 723 F.2d at 261.  In any event, Professor Cleary
apparently also believes that "virtually all declarations by
co-conspirators will be found to qualify as 'verbal acts,' and hence
not hearsay in the first place, by analysis or rules definition." E.
Cleary, McCormick on Evidence Section 53, at 139 (3d ed. 1984).

   /9/ The current Rule 104(a) is identical in all material respects
to the version of the rule that the Court submitted to Congress.

   /10/ In support of that view, the Court cited the remarks of
Thayer, referring to the exclusionary rules of evidence as "the child
of the jury system," inappropriate when the judge is deciding
questions of admissibility.  415 U.S. at 175 n.12 (citation omitted).

   /11/ The Fourth and Tenth Circuits, which also apply the
bootstrapping rule, see, e.g., United States v. Gresko, 632 F.2d 1128,
1131 (4th Cir. 1980);  United States v. Andrews, 585 F.2d 961, 966
(10th Cir. 1978), have apparently not addressed the impact of Rule
104(a).

   /12/ In some cases, the simple fact that a co-conspirator statement
was made tends, without more, to show a connection between the
declarant and the defendant and is thus evidence of the existence and
membership of the conspiracy.  See, e.g., United States v. Lopez, 584
F.2d 1175, 1179 (2d Cir. 1978), cert. denied, No. 84-6993 (Jan. 13,
1986).

   /13/ Like any other factual finding, a trial court's determination
that the requirements of Rule 801(d)(2)(E) have been satisfied is
reviewable under the clearly erroneous standard.  See, e.g., United
States v. Andrus, 775 F.2d at 840;  United States v. Lopez, 758 F.2d
1517, 1520 (11th Cir. 1985), cert. denied, No. 84-6993 (Jan. 13,
1986);  United States v. Singer, 732 F.2d 631, 636 (8th Cir. 1984);
United States v. Winship, 724 F.2d 1116, 1122 (5th Cir. 1984);  United
States v. Arruda, 715 F.2d 671, 684 (1st Cir. 1983);  United States v.
Romano, 684 F.2d 1057, 1066 (2d Cir.), cert. denied, 459 U.S. 1016
(1982);  see also United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948).

   /14/ See United States v. Chindawongse, 771 F.2d 840, 844 (4th Cir.
1985), cert. denied, No. 85-5862 (Jan. 21, 1986);  United States v.
Drougas, 748 F.2d 8, 28 (1st Cir. 1984);  United States v. DeJesus,
806 F.2d 31,34 (2d Cir. 1986);  United States v. Ammar, 714 F.2d 238,
249-251 (3d Cir.), cert. denied, 464 U.S. 936 (1983);  United States
v. James, 590 F.2d 575, 582-583 (5th Cir.) (en banc), cert. denied,
442 U.S. 917 (1979);  United States v. Vinson, 606 F.2d 149, 152 (6th
Cir.), cert. denied, 444 U.S. 1074 (1980);  United States v.
Jefferson, 714 F.2d 689, 696 (7th Cir. 1983);  Bell, 573 F.2d at 1044;
 United States v. Andrews, 585 F.2d 961, 965 (10th Cir. 1978).  The
preponderance standard is, moreover, applied by all circuits in civil
cases.

   /15/ See, e.g., United States v. Jackson, 627 F.2d 1198, 1219 (D.C.
Cir. 1980) (substantial evidence);  United States v. Weiner, 578 F.2d
757, 768 (9th Cir.), cert. denied, 439 U.S. 981 (1978) ("sufficient *
* * evidence to establish a prima facie case").

   /16/ The circuits are divided on this issue.  Some courts have held
that the Confrontation Clause requires a separate "reliability"
inquiry.  See United States v. Gomez, NO. 84-1555 (10th Cir. Jan. 30,
1987), slip op. 12;  United States v. DeLuna, 763 F.2d 897, 909-911
(8th Cir. 1985), cert. denied, No. 85-423 (Nov. 12, 1985);  United
States v. Arbalaez, 719 F.2d 1453, 1459-1460 (9th Cir. 1983), cert.
denied, 467 U.S. 1255 (1984);  United States v. Ammar, 714 F.2d 238,
254-257 (3d Cir.), cert. denied, 464 U.S. 936 (1983);  United States
v. Wright, 588 F.2d 31, 37-38 (2d Cir. 1978), cert. denied, 440 U.S.
917 (1979).  Other circuits have held that a statement admissible
under Rule 801(d)(2)(E) satisfies the Confrontation Clause without the
need for a separate inquiry into the reliability of the statement.
See, e.g., United States v. Chindawongse, 771 F.2d 840, 845-847 (4th
Cir. 1985), cert. denied, No. 85-5862 (Jan. 21, 1986);  United States
v. Kendall, 665 F.2d 126, 133 (7th Cir. 1981), cert. denied, 455 U.S.
1021 (1982);  United States v. Peacock, 654 F.2d 339, 349 (5th Cir.
1981), cert. denied, 464 U.S. 965 (1983);  United States v. McManus,
560 F.2d 747 (6th Cir. 1977), cert. denied, 434 U.S. 1047 (1978);
Ottomano v. United States, 468 F.2d 269, 273 (1st Cir. 1972), cert.
denied, 409 U.S. 1128 (1973).

   /17/ See Trial of Daniel Dammaree, 15 State Tr. 522 (1710);  Trial
of Lord George Gordon, 21 State Tr. 522, 526-527, 529-540 (1781);
Trial of Thomas Hardy, 24 State Tr. 200, 454 (1794);  Trial of John
Horne Tooke, 25 State Tr. 1 (1794);  Trial of William Stone, 25 State
Tr. 1155, 1277-1278 (1794).  See Davenport, The Confrontation Clause
and the Co-conspirator Exception in Criminal Prosecutions:  A
Functional Analysis, 85 Harv. L. Rev. 1378, 1383 & n.29 (1972).  We
have furnished petitioner with a copy of our brief in Inadi.

   /18/ See, e.g., United States v. Nixon, 418 U.S. 683, 701 (1974);
Anderson v. United States, 417 U.S. 211, 218 (1974);  Wong Sun v.
United States, 371 U.S. 471, 490 (1963);  Lutwak v. United States, 344
U.S. 604, 617-618 (1953);  Krulewitch v. United States, 366 U.S. 440,
443 (1949) (describing the co-conspirator rule as "firmly
established");  Glasser v. United States, 315 U.S. 60, 74-75 (1942);
Wiborg v. United States, 163 U.S. 632, 657-658 (1896);  Logan v.
United States, 144 U.S. 263, 308-309 (1892);  Nudd v. Burrows, 91 U.S.
426, 438 (1875).

   /19/ Twenty-six states have rules of evidence identical to Rule
801(d)(2)(E):  Alaska, Arizona, Arkansas, Colorado, Hawaii, Idaho,
Iowa, Minnesota, Mississippi, Montana, Nebraska (Nev. Rev. Stat.
Section 27-801(4)(b)(v) (1985)), Nevada (Nev. Rev. Stat. Ann. Section
51.035(3)(e) (1967)), New Hampshire, New Mexico, North Carolina, North
Dakota, Oklahoma (Okla. Stat. Ann. tit. 12, Section 2801(4)(b)(5)
(1980)), Oregon (Ore. R. Evid. 801(4)(b)(E) (1984)), South Dakota
(S.D. Codified Laws Ann. Section 19-16-3(5) (1979)), Texas (Tex. R.
Evid. 801(e)(2)(E) (1985)), Utah, Vermont, Washington, West Virginia,
Wisconsin (Wis. Stat. Ann. Section 908.01(4)(b)(5) (1975)), and
Wyoming.  Nine states have rules of evidence similar to Rule
801(d)(2)(E):  California (Cal. Evid. Code Section 1223 (West 1966)),
Delaware, Florida (Fla. Stat. Ann. Section 90.803(18) (West 1979)),
Kansas (Kan. Stat. Ann. Section 60-460(i)(2) (1983)), Louisiana (La.
Rev. Stat. tit. 15, Section 455 (1981)), Maine, Michigan, New Jersey
(N.J. R. Evid. 63(9)(b)), and Ohio.  Fourteen states have adopted the
co-conspirator exception by court decision.  See, e.g., Leonard v.
State, 459 So.2d 970, 972 (Ala. Crim. App. 1984);  State v. Tropiano,
158 Conn. 412, 423, 262 A.2d 147, 152 (1969), cert. denied, 398 U.S.
949 (1970);  People v. Goodman, 81 Ill. 2d 278, 283, 408 N.E.2d 215,
216 (1980);  Wallace v. State, 426 N.E.2d 34, 42-43 (Ind. 1981);
Napier v. Commonwealth, 515 S.W.2d 615, 616 (Ky. 1974);  Thomas v.
State, 492 A.2d 939 (Md. App. 1985);  Commonwealth v. Bongarzone, 390
Mass. 326, 340, 455 N.E.2d 1183, 1192, (1983);  State v. Cornman, 695
S.W.2d 443, 447 (Mo. 1985);  People v. Sanders, 56 N.Y. 2d 51, 436
N.E.2d 480, 451 N.Y.S.2d 30 (1982);  Commonwealth v. Dreibelbis, 493
Pa. 466, 475, 426 A.2d 1111, 1115 (1981);  State v. Bracero, 434 A.2d
286, 289 (R.I. 1981);  State v. Sullivan, 277 S.C. 35, 42, 282 S.E.2d
838, 842 (1981);  State v. Thomas, 691 S.W.2d 571, 572 (Tenn. Crim.
App. 1985);  Anderson v. Commonwealth, 215 Va. 21, 24, 205 S.E.2d 393,
395 (1974).  Georgia has adopted the co-conspirator rule by statute
(Ga. Code Ann. Section 24-3-5 (1982), but the Georgia courts have
construed that state's rule more broadly than the common law and
federal rule.  See Dutton v. Evans, 400 U.S. 74 (1970).

   /20/ For this proposition, the Court relied principally on Diaz v.
United States, 223 U.S. 442, 450 (1912), involving prior testimony,
and Spiller v. Atchison, Topeka & Santa Fe Ry., 253 U.S. 117, 130
(1920), involving statements of various third parties gathered and
summarized by a single witness at trial.

   /21/ Justice Harlan concurred in the result in Dutton on the ground
that the Confrontation Clause was not applicable at all.  400 U.S. at
93-97.  In the course of his opinion, Justice Harlan made it clear
that he did not approve of interpreting the Confrontation Clause in a
manner that would render it "a threat to much of the existing law of
evidence and to future developments in that field" (id. at 94).

   /22/ Petitioner tempers even this limited concession by insisting
that a reliability inquiry is unnecessary only if the Court retains
the rule against "bootstrapping" (Br. 31 n.38, 35).  But there is no
justification for this qualification.  Under Rule 104(a), the district
court will rely on the co-conspirator declarations to support its
finding of conspiracy only if it finds those statements to be
reliable.  Thus, if the court finds that the co-conspirator
declarations are not trustworthy, the court will not rely on them in
making its admissibility ruling.  In that event, the abandonment of
the bootstrapping rule will not affect the case.  On the other hand,
if the court decides to rely on the declarations because they are
especially trustworthy under all the circumstances, there will be no
need for a separate (and redundant) reliability inquiry under the
Confrontation Clause.

   /23/ Similar, and equally unsuccessful, efforts to change the
requirements of the co-conspirator rule had been directed to the
Advisory Committee.  See E. Cleary, McCormick's Evidence Section 267,
at 793 (3d ed. 1984).

   /24/ See, e.g., United States v. Noble, 754 F.2d 1324, 1330-1332
(7th Cir. 1985) (prior convictions);  United States v. Coachman, 727
F.2d 1293, 1297 n.13 (D.C. Cir. 1984) (same);  United States v.
Bovain, 708 F.2d 606, 613 (11th Cir.), cert. denied, 464 U.S. 898
(1983) (same);  United States v. Pizarro, 717 F.2d 336, 350 (7th Cir.
1983), cert. denied, 471 U.S. 1139 (1985), (inconsistent statements);
United States v. Wuagneux, 683 F.2d 1343, 1357 (11th Cir. 1982), cert.
denied, 464 U.S. 814 (1983) (same);  United States v. Nardi, 633 F.2d
972, 976 (1st Cir. 1980) (same).