United States v. Gibbs, Stephen A/K/A "Jake". Appeal of Stephen Gibbs

ALDISERT, Chief Judge,

dissenting.

What divides the panel here is a basic difference in philosophy. I would hold federal prosecutors to at least some level of minimum competence in drafting indictments. The majority do not. They excuse the slipshod manner in which the indictment was drafted and place a judicial imprimatur on sloppy performance by the office of the United States Attorney. I would not be the circus hand following the prosecutorial elephant around the sawdust trail.

I.

The majority opinion properly lays out the facts. Stephen Gibbs was one of six persons indicted on September 1, 1981 in the Eastern District of Pennsylvania for conspiracy to violate a federal narcotics statute. The indictment charged the defendant and five others with conspiracy “to engage in the unlawful distribution of, and possession with the intent to distribute, marihuana, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).” It further provided in paragraphs (e) and (f) under the subdivision entitled “Overt Acts” that a co-conspirator, Joseph Quintiliano, “had a telephone conversation with the defendant Stephen Gibbs to arrange for Gibbs to purchase [a] plane-load of marihuana,” and that “[i]n or about the early morning of October 6, 1980, because of a shortage of fuel, [a co-conspirator] Prentiss C. Breland landed the Beechcraft Queen Air airplane at an airport near Boca Raton, Florida with 1,487 pounds of marihuana.”1

Gibbs was convicted and then sentenced to a ten year term of imprisonment pursuant to 21 U.S.C. § 841(b)(6) (1980). On June 15, 1984, this court sitting in banc affirmed his conviction. United States v. Gibbs, 739 F.2d 838 (3d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985). On March 14, 1985, Gibbs filed a motion with the district court to correct an illegal sentence pursuant to Rule 35(a), F.R.Crim.P. Thereafter, he moved to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255, and *604to reduce the sentence pursuant to Rule 35(b), F.R.Crim.P. The district court denied the motion under Rule 35(a) and ordered a hearing to be held on the motions under section 2255 and Rule 35(b).

Gibbs appeals from the denial of his Rule 35(a) motion to vacate the sentence of ten years imprisonment and to substitute therefor a lesser sentence. He asserts that because the indictment only charged him with conspiring to violate 21 U.S.C. § 841(a)(1), his maximum incarceration was limited to a five year sentence or a $15,000 fine or both, under 28 U.S.C. § 841(b)(1)(B). He contends that because the indictment did not charge a conspiracy either to possess or distribute more than 1,000 pounds of marijuana, or to violate section 841(b)(6), it could not support a ten year sentence under the increased penalties of 21 U.S.C. § 841(b)(6).2

I conclude that the quantity of marijuana involved in a violation of 21 U.S.C. § 841(a) is an essential element of a substantive offense under 21 U.S.C. § 841(b)(6) and must be properly alleged in an indictment before sentence under section 841(b)(6) can be imposed. Accordingly, I would hold Stephen Gibbs’ ten year sentence illegal, reverse the district court, and remand this case for resentencing pursuant to section 841(b)(1)(B). I base my reasoning on statutory interpretation and the sixth amendment to the United States Constitution.

II.

In reaching my conclusion that section 841(b)(6) is a substantive offense rather than a mere penalty provision, I am in part persuaded by the legislative history of that section. It is uncontested that, in amending the Controlled Substances Act to include section 841(b)(6), Congress intended to create a critical distinction between two classes of persons violating the Act. S.Rep. No. 916, 96th Cong., 2d Sess. 14, reprinted in 1980 U.S.Code Cong. & Admin.News 2858, 2871 (The purpose of the amendment is “to distinguish — for purposes of criminal sanctions — between large and small trafficking violations.”). Because existing penalties were thought inadequate to deter the highly organized criminal element involved in drug trafficking, section 841(b)(6) provided for severe prison sentences — sentences equivalent to those then available for heroin offenses. Id. Moreover, the amendment does not appear to have been intended to have any effect on the small drug trafficker. See 126 Cong. Rec. 11,791 (1980) (remarks of Rep. Carter) (“The amendment does not affect a small-time seller of the drug.”).

Having identified two classes of marijuana offenders and the respective punishment to be accorded to each of them, Congress was faced with the task of making its distinction operational. The means by which Congress decided to distinguish between these two classes of marijuana offenders was the quantity of contraband involved in the crime. Congress made the 1,000 pound marijuana quantity the fulcrum upon which turns the degree of opprobrium attached to the crime, and the concomitant degree of punishment available. Given the importance of the quantity of marijuana involved, I would hold that it was intended to be an element of a greater inclusive offense under section 841(b)(6).

III.

The relevant case law also points toward an interpretation of section 841(b)(6) as a *605substantive offense. The majority suggest that the circuits are divided over the controlling question of this appeal: whether section 841(b)(6) is a substantive offense for marijuana violations involving more than 1,000 pounds of that substance. I am not certain, however, that the cases relied upon by the government and the majority actually support the propositions for which they are cited. Former Chief Judge William H. Hastie was fond of using an expression to describe the situation when a cited case did not stand for the position stated in a lawyer’s brief or a judge’s opinion. He called this “trampling on graves.” I think a lot of trampling occurred here.

The cases relied upon by the government or offered by the majority did not decide the issue before us in this appeal. Only United States v. Alvarez, 735 F.2d 461 (11th Cir.1984), has done so. Accordingly, I find no split in the circuits. The government relies on United States v. Richards, 737 F.2d 1307 (4th Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985), United States v. Simmons, 725 F.2d 641 (11th Cir.1984), and United States v. Wright, 742 F.2d 1215 (9th Cir.1984), for the proposition that the quantity of marijuana involved is not an essential element of a substantive offense under section 841(b)(6). See Br. for United States at 8-9, 11-12. But, upon examination, these cases do not so hold.

Richards considered three issues: whether there was sufficient evidence that the defendant participated in a conspiracy involving more than 1,000 pounds; whether section 841(b)(6) violated the equal protection clause; and whether the district judge erred in denying the defendant’s motion for recusal. 737 F.2d at 1308-09. The question presented in this appeal was neither presented, discussed, nor decided by Richards.

The government argues that “[t]he issue raised by Gibbs was considered in United States v. Simmons____” Br. for United States at 8. This is simply not true. There was one, and only one, conclusion in Simmons:

We conclude ... that the United States need not prove knowledge or intent of the accused to possess in excess of 1,000 pounds to be subject to the more severe sentence [under section 841(b)(6)]. To be subject to it, the government need only show that the amount knowingly possessed with intent to distribute exceeded 1,000 pounds.

725 F.2d at 644. Furthermore, it is noteworthy that in Simmons, the indictment specifically charged a violation of section 841(b)(6). Id. at 643.

The government’s reliance on an isolated excerpt from Wright, br. for United States at 12, is plainly illicit. First, the government’s brief failed to inform this court that the quotation appeared only in a discussion of evidence sufficiency. Moreover, the government failed to mention that, following the passage it quoted in its brief, the court concluded: “[t]he indictment ... properly charged a conspiracy to violate sections 841(a) and 841(b)(6).” 742 F.2d at 1220. As relevant for our purposes, the court in Wright decided only a narrow issue: that a conviction for conspiracy to possess with the intent to distribute more than 1,000 pounds of marijuana did not require proof that more than 1,000 pounds were actually involved. Id. at 1220-21.

Thus, three of the primary authorities relied on by the government to excuse their neglect in drafting this indictment involved either cases where the indictment specifically mentioned section 841(b)(6), or specifically charged a conspiracy involving more than 1,000 pounds of marijuana. At best, the government’s reliance on these cases was fatuous; at worst, it was a misrepresentation — deliberate, or otherwise — to this court.

Nor do the two additional cases offered by the majority support the government’s case. The holding of United States v. Normandeau, 800 F.2d 953 (9th Cir.1986), tracked Simmons in holding that the government need not prove that the defendant knew of the excess marijuana weight in order for section 841(b)(6) to apply. Normandeau expressly reserved the question before us today:

*606It may be that the indictment must allege that more than 1000 pounds of marijuana was involved before the government may seek enhanced sentences____ We need not decide this issue today because the indictment in this case clearly alleged that more than 1000 pounds of marijuana was involved.

Id. at 956 & n. 2.

Similarly, in United States v. McHugh, 769 F.2d 860, 868 (1st Cir.1985), an opinion authored by Chief Judge Re of the United States Court of International Trade, the defendant “was indicted under ... 21 U.S.C. §§ 841(a)(1), 841(b)(6), and 846.” After holding that the evidence was sufficient to support a finding that more than 1,000 pounds of marijuana were involved, the court stated that even a failure to prove that the marijuana involved was less than 1,000 pounds could not affect a conviction under the lesser offense of section 841(a)(1). In dictum, the court stated: “[Pjroving the amount of marijuana is an essential element of the offense only under 21 U.S.C. § 841(b)(6)....” Id.

In light of the foregoing, I detect no split in the circuits. In each case cited by the government or offered by the majority, the indictment made the proper allegation which was not forthcoming here. We are thus left with one court of appeals decision squarely on point, United States v. Alvarez, 735 F.2d 461 (11th Cir.1984), a case that carries forward the precedents and the philosophy previously expressed by this court.

IV.

An interpretation of section 841(b)(6) as a substantive offense that must appear in an indictment thereunder is consistent with this court’s ruling case law, first articulated in the 1952 case of United States v. Marpes, 198 F.2d 186 (3d Cir.), cert. denied, 344 U.S. 876, 73 S.Ct. 170, 97 L.Ed. 678 (1952), and reaffirmed in United States v. Ciongoli, 358 F.2d 439 (3d Cir.1966). In Marpes, the criminal statute at issue distinguished between offenses involving stolen goods valued at $100 and less, and those involving goods valued at more than $100. 198 F.2d at 187 n. 1 (quoting 18 U.S.C. § 659). Judge Kalodner made it clear that where an indictment did not charge the value of goods stolen, sentence could be imposed only on the lesser offense, but where a value of stolen goods in excess of $100 was alleged in the indictment, a sentence on the greater offense could stand. 198 F.2d at 189. In Ciongoli, Judge Hastie explained that in a charge of misappropriation of government property, “no particular value of the stolen property need be alleged or proved to sustain a conviction, though in such a case only the lesser punishment can be imposed.” 358 F.2d at 441.

The reasoning set forth in United States v. Alvarez, 735 F.2d 461 (11th Cir.1984), and United States v. Moore, 540 F.2d 1088 (D.C.Cir.1976), is in accordance with that of our court in Marpes and Ciongoli. Although Alvarez and Moore plainly support Gibbs’ position, the majority attempt to denigrate their importance by labelling them as readily distinguishable. I do not see any controlling distinction.

A.

I consider United States v. Alvarez, 735 F.2d 461 (11th Cir.1984), directly on point and clearly supportive of my view. There the court held that sentences imposed under section 841(b)(6) were illegal, because no allegation of quantity appeared in the indictment. Id. at 466-68. The court based its holding on its conclusion that “the quantity of the substance constitutes a critical element of the offense under 21 U.S.C. § 841(b)(6)....” Id. at 468; see also United States v. McHugh, 769 F.2d 860, 868 (1st Cir.1985) (dictum) (amount of marijuana is essential element of offense under section 841(b)(6)). The Alvarez court reasoned that the quantity element specified in section 841(b)(6) was much like the value elements found in 18 U.S.C. §§ 659 and 641, wherein the maximum punishments for offenses under those sections are related to the dollar magnitudes of the crimes. The court made generous reference to cases similar to our court’s decisions in Marpes and Ciongoli: Packnett v. United States, 503 F.2d 949, 950 (5th Cir.1974) (“ ‘Where *607the grade of larceny, and consequently, the punishment, depend on the value of the property, it is essential that the value of the property defendant is charged with having taken be alleged and proved.’ ”) (quoting Cartwright v. United States, 146 F.2d 133, 135 (5th Cir.1944)) and Theriault v. United States, 434 F.2d 212, 214 (5th Cir.1970) (“For the offense ... to amount to a felony, there must be both charge and proof that the value of the property stolen, etc., exceeds the sum of $100.”), cert. denied, 404 U.S. 869, 92 S.Ct. 124, 30 L.Ed.2d 113 (1971). Alvarez, 735 F.2d at 467.

B.

I adopt completely the rationale offered in United States v. Moore, 540 F.2d 1088 (D.C.Cir.1976). The question there was whether a defendant convicted for violating section 841(a) could be given an enhanced sentence if certain of his section 841(a) violations involved sales of drugs to minors (sales that were prescribed by 21 U.S.C. § 845(a)), when no violation of section 845(a) was alleged in the indictment. In deciding whether section 845(a) contained an additional substantive element or was merely a penalty provision, Moore recognized a dichotomy between “ ‘an historical fact that bespeaks a defendant’s demonstrated proclivities’ and an ‘aggravation arising from the manner in which a crime was committed.’ ” 540 F.2d at 1090 (quoting Jordan v. United States District Court for the District of Columbia, 233 F.2d 362, 367 (D.C.Cir.), vacated on other grounds sub nom. Jordan v. United States, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (1956)).

Although Jordan lacks precedential value, its reasoning is highly persuasive. In that case, the defendant was charged with and convicted of robbery. The government successfully persuaded the district court to impose an additional five year sentence on the basis of a statute making it a separate crime to use a firearm when committing a crime of violence. The court vacated the sentence, impressed by the reasoning of Meyers v. United States, 116 F.2d 601, 603 (5th Cir.1940): “The facts constituting such aggravation of a crime as will increase the statutory punishment must be plainly charged or they are not confessed by a plea or established by a verdict of guilty.” Jordan, 233 F.2d at 366. The court in Jordan set forth the critical dichotomy later reaffirmed in Moore:

In the second-offender situation, however, the criminal act which is proscribed is the same regardless of the background of the criminal; the previous offense is merely “an historical fact,” as a result of which the penalty may appropriately be made more severe because of the demonstrated proclivities of the defendant. On the other hand, where the aggravation arises from the manner in which the crime was committed, in substance a different aspect of the offense is sought to be punished. Accordingly, we think — as did the Fifth Circuit in ... Meyers [v. United States, 116 F.2d 601 (5th Cir.1940) ] ... that the facts in aggravation must be charged in the indictment and found to be true by the jury.

233 F.2d at 367 (footnotes omitted).

Following Jordan’s lead, Moore held that the age of a distributee in a section 841(a) violation was an aggravating fact and therefore must have been alleged in the indictment before a penalty could be imposed under section 845(a). 540 F.2d at 1091. Similarly, I would hold that the quantity of contraband involved in a marijuana violation is an aggravating fact that gives rise to a greater inclusive offense for which an indicting charge is required to support a sentence under section 841(b)(6).

C.

Because I do not think that any defensible reading of Alvarez and Moore can render those cases distinguishable from the case before us, I would hold that, when combined with Marpes and Ciongoli, they reinforce the conclusion that section 841(b)(6) is a substantive offense that must be charged in an indictment.

V.

In light of my conclusion that section 841(b)(6) is a substantive offense, the ques*608tion that remains is whether the district court committed reversible error in denying Gibbs’ motion for correction of an illegal sentence pursuant to Rule 35(a), F.R. Crim.P. The test for determining whether an indictment provides sufficient notice to the defendant is whether the defendant received “reasonable notice and information of the specific charge against him.” Bibby v. Tard, 741 F.2d 26, 29 (3d Cir.1984). In applying this test, the indictment must be read as a whole. Id. at 29. One of the primary purposes for requiring all elements of an offense to be charged is to provide defendants with notice of the criminal charges against them, that they may adequately prepare to meet those charges. Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962). Moreover, this purpose is not merely salutary, but is a protection the sixth amendment accords to those accused of crimes. U.S. Const. Amend. VI; United States v. Thomas, 610 F.2d 1166, 1173 (3d Cir.1979) (per curiam); accord Rule 7(c), F.R.Crim.P.

I do not ignore that conspiracy indictments need not allege the elements of the underlying substantive offenses with “technical precision.” See Wong Tai v. United States, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed. 545 (1927); United States v. Wander, 601 F.2d 1251, 1259 (3d Cir.1979). Nevertheless, a conspiracy indictment must be “sufficient to identify the offense which the defendants conspired to commit....” Wong Tai, 273 U.S. at 81, 47 S.Ct. at 302 (quoting Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 171, 52 L.Ed. 278 (1908)). I conclude that Gibbs’ indictment failed to meet this requirement.

The defect in Gibbs’ indictment is that it failed to alert him that he was being indicted for a conspiracy involving over 1,000 pounds of marijuana. Overt acts (e) and (f) were insufficient to put him on notice of the offense for which he was charged. Overt act (e) makes no reference to the Breland aircraft landing on October 6, 1980. Overt act (f) does not identify Gibbs with the landing of the Breland aircraft. The only evidence presented against Gibbs may be summarized:

* On April 7,1980 Gibbs, also known as “Jake,” flew from his Massachusetts home to Philadelphia, then to Wings Airfield in Montgomery County, Pennsylvania, and then was driven to the Quakertown Airport where he and co-conspirator Quintiliano inspected a Beechcraft twin-engine airplane.
* Through out-of-court hearsay testimony it was said that Quintiliano stated (1) that he had made arrangements to sell the marijuana to some Floridians who had offered more money than “Jake” and (2) that on October 4, 1980 “Jake” had agreed to buy the marijuana but needed time to obtain the necessary funds.
* Telephone records showing telephone calls in early October, 1980 from Quintiliano to Gibbs’ home or to an electronic beeper service nearby; there is no evidence of the substance of any conversation or even that Gibbs received or returned the calls.3

At best the conspiracy evidence against Gibbs was skinny. Concededly, it is the law of this case that Gibbs was properly found guilty of a conspiracy to distribute *609marijuana. But this is not to say that he was properly charged with a conspiracy involving a quantity of marijuana in excess of 1,000 pounds. If the United States Attorney truly intended to try an excess weight case against Gibbs under section 841(b)(6), it knew how to do so. Cases in this and other courts are legion. See, e.g., United States v. Castro, 776 F.2d 1118, 1123 n. 3 (3d Cir.1985) (U.S. Attorney’s Office for the Eastern District of Pennsylvania — the same office as is involved in this case — drafted an indictment charging agreement “to possess with intent to distribute a quantity of marihuana exceeding 1,000 pounds ... in violation of Title 21, United States Code, Section 841(a) and Section 841(b)(6)”), cert. denied, — U.S. -, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986); United States v. Zarintash, 736 F.2d 66, 67 (3d Cir.1984) (indictment originating in District of New Jersey charged conspiracy to possess 36,000 pounds of hashish with intent to distribute it in violation of 21 U.S.C: § 841(a), (b)(6)); United States v. Normandeau, 800 F.2d 953, 956 n. 2 (9th Cir.1986) (the indictment “clearly alleged that more than 1,000 pounds of marijuana was involved”); United States v. McHugh, 769 F.2d 860, 867 (1st Cir.1985) (defendant indicted for conspiring to possess and possession of approximately 1,379 pounds of marijuana in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(6)); United States v. Simmons, 725 F.2d 641, 643 (11th Cir.) (indictment charged defendant with conspiracy to violate 21 U.S.C. § 841(a)(1), (b)(6)), cert. denied, 469 U.S. 827, 105 S.Ct. 108, 83 L.Ed.2d 52 (1984); United States v. Webster, 750 F.2d 307, 331 (5th Cir.1984) (defendants charged with conspiracy to possess and possession with intent to distribute approximately 1,500 pounds of marijuana), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985); United States v. Wright, 742 F.2d 1215, 1220 (9th Cir.1984) (defendants charged with conspiracy “to possess with intent to distribute marijuana ... in a quantity exceeding 1000 pounds,” and incorporated language of section 841(b)(6)); United States v. Vaglica, 720 F.2d 388, 391 (5th Cir.1983) (defendant charged with conspiracies to import and possess with intent to distribute “a quantity exceeding 1,000 pounds of marijuana”).

In stark contrast to these cases, the charging portion of the Gibbs indictment makes no reference either to quantity or to section 841(b)(6). I conclude that the indictment did not sufficiently identify section 841(b)(6) as the offense Gibbs conspired to commit. In light of my conclusion that section 841(b)(6) is a substantive offense, the indictment’s deficiency is fatal. Accordingly, I would hold that the ten year sentence imposed on Stephen Gibbs under section 841(b)(6) is illegal.

VI.

I observe at this juncture that the result I reach would not be necessary had the government merely added to the indictment language referring in some fashion to a violation of section 841(b)(6). Indictments that do not adequately apprise defendants of the charges against them exact a social as well as a jurisprudential cost on the functioning of our legal system. First, they engender needless and expensive prosecutions. Although I only speculate on this point, had Stephen Gibbs known that he would be subject to punishment under section 841(b)(6), rather than the comparatively lenient punishment available under section 841(b)(1)(B), he might have chosen to enter into a plea agreement with the government, and thereby might have saved the criminal justice system from this expensive and time-consuming prosecution. Although the right to plea bargain is not constitutionally protected, it certainly is a valued and essential component of an efficient criminal justice system. Santobello v. United States, 404 U.S. 257, 260-61, 92 S.Ct. 495, 497-98, 30 L.Ed.2d 427 (1971). Second, from the standpoint of criminal courtroom realities, a case can be made that the indictment here did more than generate a social cost; it also robbed Gibbs of the opportunity to make a reasoned decision as to whether to enter a guilty plea. Going to trial when the maximum sentence is five years may be worth the gamble of a “not guilty” plea; going to trial when the incarceration potential is tripled is quite something else.

*610Nor am I impressed with the majority’s argument that somehow the power of Gibbs’ position before this court is dissipated because he did not make this challenge at sentencing. See maj. op., supra, at 603. This offhand remark ignores the record revealing that Gibbs’ basic defense at that time was that there was insufficient evidence to prove him guilty of any crime. Moreover, this was not a throw-away argument, for his contention triggered a court in banc and attracted four out of eleven judges of this court to his point of view, and eventually impressed the Supreme Court to accept certiorari in another case on the identical issue.4

VII.

Accordingly, I dissent from the majority’s affirmance and would reverse the district court’s denial of Gibbs’ motion under Rule 35(a), F.R.Crim.P. I would remand this case with an order that a new sentence be imposed under 21 U.S.C. § 841(b)(1)(B).

. The government’s brief did not advise this court of the exact language of overt act 4(f). It made no mention that the plane’s landing was due to a shortage of fuel, stating only:

4(F). In or about the early morning of October 6, 1980, the defendant Prentiss C. Breland landed the Beechcraft Queen Air airplane at an airport near Boca Raton, Florida, with 1,487 pounds of marijuana.

Br. for United States at 8. This is but one example of the lack of accuracy and candor that I find in this brief.

Incidentally, we usually spell it "marijuana.” See, e.g., United States v. Gibbs, 739 F.2d 838 (3d Cir.1984) (in banc), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985). Although the indictment spells it "marihuana,” and the statute so reads, the government’s brief here follows the spelling we have used before.

. Title 21 U.S.C. § 841(a)(1) (1982) provides: (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance____

As in effect at the time Gibbs was sentenced, the relevant portions of 21 U.S.C. § 841(b) (1982) provided:

(1)(B) In the case of a controlled substance in schedule I ... such person shall ... be sentenced to a term of imprisonment of not more than 5 years, a fine of not more than $15,000, or both____
(6) In the case of a violation of subsection (a) of this section involving a quantity of marihuana exceeding 1,000 pounds, such person shall be sentenced to a term of imprisonment of not more than 15 years, and in addition, may be fined not more than $125,000____

Section 841(b) has since been amended by legislation repealing section 841(b)(6). See maj. op., supra, at 598 n. 1.

. As Judge Rosenn has perceptively observed:

In an effort to give some credence to the hearsay testimony, the Government introduced evidence of certain telephone records. They showed that long distance calls were made in early October 1980 from Quintiliano’s residence in Pennsylvania to the Gibbs residence or to the Ram Broadcast Company in Massachusetts. There is no evidence, however, of any conversation with Gibbs. The Government suggests that from this series of telephone calls it can be inferred that Gibbs and Quintiliano were discussing arrangements for the sale of the marijuana in furtheranee of whatever plans they had made at their April meeting. There are several major problems with the Government's argument, however. One obvious difficulty is the absence of evidence directly linking Gibbs with Ram or proof that any of Quintiliano’s calls to Ram were returned. Moreover, except for Quintiliano’s out-of-court hearsay, there is nothing to indicate the substance of the conversations or that they actually conversed.

United States v. Gibbs, 739 F.2d 838, 851-52 (3d Cir.1984) (in banc) (Rosenn, J., with whom Aldisert and Gibbons, J.J., joined, and with whom Seitz, C.J., substantially joined, dissenting).

. In United States v. Inadi, — U.S. -, 106 S.Ct. 112, 89 L.Ed.2d 390 (1986), the Supreme Court finally decreed that the availability prong of the rule in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), outlawing hearsay statements in the absence of proof of reliability and non-availability of the out-of-court declarant, did not apply to out-of-court statements by a non-testifying co-conspirator.