U.S. v. Gibbs

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation739 F.2d 838
Docket NumberNo. 82-1096,82-1096
Parties15 Fed. R. Evid. Serv. 929 UNITED STATES of America v. GIBBS, Stephen a/k/a "Jake," Appellant.
Decision Date19 June 1984

Martin G. Weinberg (argued), Lillian A. Wilmore, Oteri, Weinberg & Lawson, Boston, Mass., Thomas A. Bergstrom, Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Robert L. Hickok (argued), Sp. Asst. U.S. Atty., Philadelphia, Pa., for appellee.



GARTH, Circuit Judge.

Defendant Stephen Gibbs was convicted after a jury trial in the United States District Court for the Eastern District of Pennsylvania of conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 846 (1976). The conviction was based primarily on statements made by a co-conspirator, Joseph Quintiliano, that were admitted into evidence against Gibbs under Fed.R.Evid. 801(d)(2)(E), which creates a category of non-hearsay for co-conspirators' admissions.

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


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

The existence of the conspiracy was firmly established at trial. The evidence showed that early in 1980, Quintiliano began to make plans to import marijuana into Pennsylvania from Colombia, South America. In late March, he purchased a Beechcraft twin-engine airplane for $40,000. According to the testimony of two unindicted co-conspirators, Charles Bilella and David White, 2 Quintiliano stated on several occasions in late March and early April that he intended to use the airplane to transport marijuana from Colombia into Pennsylvania. From April to September 1980, Quintiliano and the other conspirators made efforts to repair and equip the plane for smuggling. In late September, after several test flights, pilot Prentiss Breland 3 flew the plane from Pennsylvania to Homestead, Florida. On October 4, Breland flew the plane from Florida to Colombia. Upon his return trip to Pennsylvania in the early morning hours of October 5, Breland missed a planned refueling stop in the Bahamas and was forced to land at Boca Raton, Florida, to refuel. A few hours later Breland was arrested at the Florida airport and the plane, containing marijuana worth over $400,000, was seized. 4

The Government prosecuted Gibbs on the theory that he participated in the conspiracy as the intended purchaser of the marijuana. The evidence linking Gibbs to the conspiracy fell into three categories. First, the Government established that on April 7, 1980, Gibbs traveled from his home in Massachusetts to Quakertown, Pennsylvania, for a meeting with Quintiliano. Gibbs flew to Philadelphia and was met there by David White, who then flew him to meet Quintiliano at Wings Airfield in Montgomery County, Pennsylvania. Surveillance officers testified that Quintiliano greeted Gibbs at Wings Airfield and drove him to the Perkins Pancake House, the site of other conspiracy meetings, where they conversed privately. Quintiliano and Gibbs then proceeded to Quakertown Airport where the Beechcraft was located, and together they inspected the airplane for several minutes. Upon leaving the airport, they were followed by Pennsylvania state troopers who observed that the people in the vehicle (Quintiliano and Gibbs) were looking around to see if someone was following them and that Quintiliano engaged in several driving maneuvers that the officers testified were designed to evade surveillance, i.e., a brief pull-off into a hotel area, followed by a resumption of travel in the same direction, and then, after further "looks" by the driver and passenger, a U-turn to proceed in the direction from which they had come.

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

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

White and Bilella also testified to a series of events that took place at Quintiliano's home on the evening of October 4, 1980, including statements by Quintiliano concerning telephone conversations that incriminated Gibbs in the conspiracy. Bilella testified that while he was in Quintiliano's home early that evening, he heard Rizo and Quintiliano discussing financial arrangements for the sale of the marijuana to the people from Florida, who were staying nearby. Quintiliano apparently became dissatisfied with these terms because the prospective buyers were unable to pay cash in advance. Quintiliano stated that he had telephoned "Jake" to see if he would buy the marijuana, and that "Jake" had agreed to "try to make the necessary arrangements." 5

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

The third category of evidence by which the Government sought to link Gibbs to the conspiracy and to corroborate the co-conspirator testimony consisted of telephone records showing long distance calls made from the Quintiliano residence in Pennsylvania. At least six telephone calls were made from Quintiliano's residence to the Gibbs residence in Massachusetts between March and May 1980. 8 Four such calls were made during September 1980, three of which occurred on September 26-27, about the time Breland flew the plane to Florida. Another call was made on October 3, 1980, the day before the plane left for Colombia. In addition, two calls were made from the Quintiliano residence to the Gibbs residence in the early morning hours of October 5, at the time the plane was due in Quakertown. The second such call, made at 3:39 a.m., followed a call from Quintiliano to David White, who was waiting at Quakertown Airport, in which Quintiliano told White that something had gone wrong with Breland's flight home.

There also was evidence of telephone calls on October 4, 1980, from Quintiliano's residence to the Ram Broadcast Co. (Ram), an electronic beeper service located near Gibbs' home in Massachusetts. 9 Although there was no direct evidence that the defendant was a client of Ram, the Government did demonstrate that one of Ram's customers was a "Gibbs Oil Co." and that Gibbs himself had claimed to be involved in the oil business. There was no evidence that these calls to Ram were returned.

On appeal, Gibbs contends that the district court erred in allowing the jury to consider the statements made by Quintiliano to White and Bilella as...

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