SALOMON R. SANDEZ, JR., APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court denied the government's petition for rehearing, clarifying that its prior ruling on the admissibility of a co-conspirator's statement was limited to the specific facts of the case.
The government sought rehearing regarding the court's language concerning the admissibility of a co-conspirator's statement. The statement was made by…
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It will be recalled that this matter arose by reason of a conversation defendant Perno had with government agent Katz. We held this conversation admissible as to Sandez, insofar as the conspiracy count was concerned, because it was a statement of a co-conspirator made during the existence of a proved conspiracy. Our opinion held that Pemo’s statement was inadmissible to Sandez on the substantive counts because there was no alleged claim, or proof, either of agency, or of res gestae, or of concert of action, with respect to the two substantive counts.
We specifically confined our ruling on the point raised by the government to the instant factual context. We did not hold nor did we intend to imply that incriminating statements such as the one attributed to Perno were not admissible where a proper foundation is laid showing concert of action or agency in respect to the very offense in question, and where the jury is instructed adequately on the use of such statements. See e. g., United States v. Olweiss, 2 Cir., 138 F. 2d 798; Lee Dip v. United States, 9 Cir., 92 F. 2d 802; Cossack v. United States, 9 Cir., 82 F. 2d 214; Vilson v. United States, 9 Cir., 61 F. 2d 901.
The petition for rehearing by the United States is denied. Appellant’s petition for rehearing on Count 10 is denied.
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United States v. Borelli, 336 F.2d 376 (2d Cir. 1964)
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United States v. Emslie Leander Moore, 522 F.2d 1068 (9th Cir. 1975)
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Laurence Anthony v. United States, 256 F.2d 50 (9th Cir. 1958)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Olweiss, 138 F.2d 798 (2d Cir. 1943)
- Cossack v. United States, 82 F.2d 214 (9th Cir. 1936)
- Vilson v. United States, 61 F.2d 901 (9th Cir. 1932)
- Dip v. United States, 92 F.2d 802 (9th Cir. 1937)