Whether Inadi and Bourjaily adequately protect an accused's Fifth Amendment due process right to a fair trial and his Sixth Amendment right to confrontation when the out-of-court statements admitted under Fed. R. Evid. 801(d)(2)(E) were not recorded and are a significant part of the prosecution's case

Question Presented In Petitioner’s jury trial on federal drug offenses, the district court allowed a prosecution witness to testify to out-of-court statements made by a nontestifying codefendant that implicated Petitioner in a conspiracy to possess heroin with the intent to distribute it. The district court relied on Federal Rule of Evidence 801(d)(2)(E) for admission of the out-of-court statements. In United States v. Inadi, 475 U.S. 387 (1986), this Court held that the confrontation clause did not require a showing of unavailability of the declarant as a condition to admission of out-of-court statements by a nontestifying coconspirator. In Bourjaily v. United States, 483 U.S. 171 (1987), this Court held that the Confrontation Clause did not require the district court to make inquiry into the independent indicia of reliability of the out-of-court statements. But in Inadi and Bourjaily, the out-of-court statements had been recorded. In Petitioner’s trial, however, there were no recordings of the original statements, just testimony from a police informant about what the nontestifying codefendant allegedly said. Do Inadi and Bourjaily adequately protect an accused’s Fifth Amendment due process right to a fair trial and his Sixth Amendment right to confrontation when the out-of-court statements admitted under Fed. R. Evid. 801(d)(2)(E) were not recorded and are a significant part of the prosecution’s case? i