Petition — Everett C. McKethan v. United States

FILED

| Supreme Court, U. & |

1

‘1 APR 29 1978

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IN THE Soda, R., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 271557

EARL A. GARNER,

Petitioner,

D.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

*

LEONARD S. RUBENSTEIN

PHILIP J. HIRSCHKOP

HIRSCHKOP & GRAD

108 North Columbus Street

Alexandria, Virginia 22313

(703) 836-6595

Bruce J. ENNIS

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

22 East 40th Street

New York, New York 10016

STEPHEN W. BRICKER

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

VIRGINIA

Heritage Building, Suite 515

1001 East Main Street

Richmond, Virginia 23219

Attorneys for Petitioner.

Washington, 0.C. + THIEL PRESS - (202) 638-4621

li

TABLE OF CONTENTS

. Se

D oe §˙)—— awa acas

QUESTIONS PRESEN zy

STATUTORY AND CONSTITUTIONAL

PROVISIONS .. hh

STATEMENT OF THE Ca.

REASONS FOR GRANTING THE WRIT

I. The Court Should Resolve a Conflict of Circuits

On The Compelling Question of Whether The

Federal Rules of Evidence Or The Confrontation

Clause Permit Convictions On Conspiracy Charges

On The Basis Of Grand Jury Testimony Alone

A. This Court Should Resolve The Proper Scope

Of II. Residual Hearsay Exception In The

Federal Rules Of Evidence, Which Has Had

Varying Interpretations In The Circuits

B. The Conspiracy Convictions Below, Based on

Grand Jury Testimony Alone, Conflict With

The Values Protected By The Confrontation

Clause, The Decisions Of This Court And A

Decision Of The Second Circuit..........

II. This Court Should Resolve a Conflict In The

Circuits Whether Consecutive Sentences May Be

Imposed For Convictions Under Separate Nar-

cotics Conspiracy Statutes Arising Out Of A

Single Course Of Conduct................

a eS

APPENDIX:

— United States v. Garner, F.2d (4th Cir.

| S PPrrrrrrirrrerrrirrrrrrre

— United States v. West, F.2d (4th

D K

a.

— Amendment VI........... 9 6 6 6 „00666660 2, 6, 43a

ern. eee e eee e ee 0 44a

„ Brie eta a 44a

— Federal Rules of Evidence, Rule 804(b) .......... 45a

TABLE OF AUTHORITIES

Cases:

Bell v. United States, 349 U.S. 81 (1950) 16

Braverman v. United States, 317 U.S. 49 (1972)......... 14

California v. Green, 399 U.S. 149 (1970h))))))))):⸗ 12

Douglas v. Alabama, 380 U.S. 415 (196): 12

Dutton v. Evans, 400 U.S. 74 (197-)))))) 8. 12, 13

Ladner v. United States, 358 U.S. 169 (195) 16

Nelson v. O' Weil, 402 U.S. 622 (197) 12

Pointer v. Texas, 380 U.S. 400 (1960))) 12

Rewis v. United States, 401 U.S. 808 (19717) 16

Simpson v. United States, — U.S., 46 U.S. L. W.

S RI = 6 AREY RR 2, 15, 16

United States v. Adcock, 487 F.2d 637 (6th Cir.

„ eee eS 7

United States v. Bass, 404 U.S. 336 (1971777) 16

United States v. Carlson, 547 F. 2d 1346 (8th Cir.

1976), cert. denied, 413 U.S. 914 (1977) ........ 9, 11

United States v. Fiore, 443 F.2d 112 (2d Cir.

...en „ 0 % 6 0 60 10, 12

United States v. Gonzalez, 559 F.2d 1271 (5th Cir.

. beews'eoes 10, 11

United States v. Honneus, 508 F.2d 566 (Ist Cir.

1974), cert. denied, 421 U.S. 948 (197) 7

Ee ee

(ui)

Cases, continued: Page

United States v. Houltin, 525 F.2d 943 (5th Cir.

1976), vacated sub nom Croucher v. United

States, 429 U.S. 1034 (1977), modified, 553

ee Pe GN Gs NED oc cwccccceccecccccens 7,15

United States v. Marotta, 518 F.2d 681 (9th Cir.

o ˙⸗ô˙!*˙ÄO ²˙²˙ SCORE CoD Se Cece eeees 7, 15

United States v. Rogers, 549 F.2d 490 (8th Cir.

1976), cert. denied, 431 U.S. 918 (1977) ............ 14

United States v. West, Nos. 76-1837 through

76-1843 (4th Cir., Feb. 13, 1978), — F. 2d

eee „„ 1, 6, 7, 8

United States v. Yates, 524 F. 2d 1282 (D. C. Cir.

APPT TEE LIET LECT PT LEE 14

Statutes:

EE ͤ ᷑¶ . 2, 3, 14

4 woven cece recesicneseveccoes 2, 3, 14

F . „eee 2

Other:

ae Te, Pete, GOD ow ccc „„ passim

Sen.Rep.No. 93-1277, 93rd Cong., 2d Sess. (1974)..... 11, 15

H. Rep. 91-1444, 91st Cong., 2d Sess. (1970) .......... 15

Comprehensive Drug Act, Pub. L. 91-513, 84 Stat.

SEU MEE w ese eiccccceeeseteseiccocecceces 15

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

EARL A. GARNER,

Petitioner,

D.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner Earl A. Garner respectfully requests that a

Writ of Certiorari issue to review the decision and judg-

ment of the United States Court of Appeals for the

Fourth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fourth

Circuit has not yet been officially reported. It is annexed

to this Petition as Appendix A. A related case, United

States v. West, Nos. 76-1837 through 76-1843 (4th Cir.,

Feb. 13, 1978) is annexed as Appendix B.

l

2

JURISDICTION

The Court entered judgment on February 17, 1978,

and, after Garner’s Petition for Rehearing, revised its

Opinion on March 30, 1978. This Petition is timely filed.

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether, under the Confrontation Clause and the

Federal Rules of Evidence, a lengthy transcript of grand

jury testimony of the government’s leading witness may

be introduced at trial, where the witness, though physi-

cally present, does not testify at trial and the grand jury

testimony is the exclusive source of evidence on two

counts against the defendant.

2. Whether, in light of the Court’s decision this Term in

Simpson v. United States, the Court of Appeals was cor-

rect in following decisions in the Fifth and Ninth Cir-

cuits, and rejecting those from the First and Sixth Cir-

cuits, by holding that a defendant who is convicted of

conspiracy to import heroin under 21 U.S.C. §963 and

conspiracy to possess heroin with intent to distribute it

under 21 U.S.C. §846 may be sentenced consecutively

where the convictions resulted from the same conduct.

STATUTORY AND

CONSTITUTIONAL PROVISIONS

Statutory and Constitutional provisions relevant to the

Petition are United States Constitution Amendment VI;

21 U.S.C, §846; 21 U.S.C. 8963; Fed. R. Evid. 804(b).

They are set forth in full in the Appendix.

3

STATEMENT OF THE CASE

Earl Garner was convicted and sentenced to a thirty

year term of imprisonment almost exclusively on the

basis of the grand jury testimony of a witness who did

not testify at trial and who was never subjected to cross

examination. Garner was indicted in the Eastern District

of Virginia along with co-defendant Everett McKethan on

two counts of narcotics conspiracy, conspiracy to import

heroin under 21 U.S.C. §963 and conspiracy to possess

with intent to distribute heroin under 21 U.S.C. 8846.

The indictment charged that in late 1974 and early 1975

the two defendants were engaged in a scheme to import

heroin into the United States for purposes of distribu-

tion. In addition, Garner was charged with two substan-

tive counts of narcotics importation under 21 U.S.C.

§952(a) and 18 U.S.C. §2.

In order to establish Garner’s guilt on one of the sub-

stantive counts of importing heroin from Europe in Oct-

ober, 1974, the government introduced the testimony of

one Mary Ann McKee. From her evidence, the jury

might have found Garner guilty of a single count of nar-

cotics importation. The remainder of the government’s

case against Garner on the two conspiracy counts, and

the foundation for the introduction of critical documen-

tary evidence of certain European trips by Garner, con-

sisted of the grand jury testimony of a man named War-

ren Robinson. Robinson refused to testify at trial, how-

ever, without giving a reason and despite warnings from

the court, a grant of immunity, an order to testify and

threats of severe punishment if he did not. (App. 112;

127-150; 162-165; 169-70). !

References are to the Appendix to Garner’s Court of

Appeals Brief.

4

When it became clear that Robinson’s testimony would

not be forthcoming, the court suggested that the govern-

ment tender testimony Robinson had given to the grand

jury for admission into evidence (App. 136-37), pursuant

to Rule 804(b)(5) of the Federal Rules of Evidence, the

residual hearsay exception applicable to statements from

unavailable witnesses. The court later offered its view

that Rule 804(b)(5) “‘obviates or supercedes” exceptions

(b)(1) through (b)(4), the traditional hearsay exceptions

for prior testimony subject to cross examination, state-

ments against interest, dying declarations and statements

of family or personal history. (App. 181). Before read-

ing the testimony, the court decided that Robinson’s test-

imony had equivalent guarantees of trustworthiness as

recognized hearsay exceptions simply because it was

given under oath. (App. 189-90). The court dispensed

ch the pretrial notice requirement of Rule 804(b)(5),

deciding that this requirement could be satisfied by

deferring a final ruling on the admissibility of the grand

jury testimony until the following day. (App. 184-93).

Robinson had testified before a grand jury on January

7, 1976, as part of an agreement with the government

pursuant to which he was permitted to plead guilty to a

lesser offense arising out of a narcotics charge which had

been brought against him. His grand jury testimony

tended to implicate Garner and McKethan in a heroin

importation conspiracy. (App. 23-76). Over the course

of more than forty transcript pages, Robinson told the

grand jury that he, Garner and McKethan began a series

of five trips in the summer of 1974 for the purpose of

importing heroin into the United States and selling it in

the Washington area. Yet the testimony was permeated

with leading questions, hearsay, multiple hearsay, ques-

tions lacking a proper foundation, and other evidentiary

infirmities prohibited at trial but common to grand jury

5

testimony. Robinson was present on only two of the

five trips about which he testified, and much of his infor-

mation came second and third hand (and never from Gar-

ner). Indeed, the travel documents the government itself

introduced at trial contradicted Robinson in material

respects, especially as to the three trips at which Robin-

son was not present.

On the second day of trial, recognizing the problem

the defendants faced without the opportunity to cross

examine Robinson, the prosecutor expressed serious

doubt about the admissibility of the grand jury testimony

and stated:

. . . think what we get into in this area is the ques-

tion of due process, and that is that the evidence

must have enough reliability to satisfy the require-

ment that a person can be convicted upon substan-

tial evidence. (App. 243).

The prosecutor accordingly declined to offer Robinson’s

grand jury testimony (App. 263, 265). His decision,

however, was overruled by his superiors, and the govern-

ment then tendered the grand jury testimony. The court

2 Robinson stated, for example, that the scheme began

when Garner and McKethan travelled to Europe without Robinson,

met a narcotics contact in Europe, and Garner brought heroin back

into the United States (App. 24-29). The documentary evidence,

however, showed that no such trip ever took place (Govt. Ex. 2,

4). On two other trips, in December, 1974 and January, 1975,

Robinson testified about drug transactions allegedly involving

Garner and McKethan in Europe, but the documents showed that

the two men were not in the same place at the time of the conver-

sations or transactions. Compare App. 47-48, 56-60 with 616-618

and Govt.Ex. 26a, 26c, 26d, 27a.

Mckee accompanied Garner and Robinson on a trip to Eur-

ope in which she became a courier for heroin. But she had never

met Garner before, and did not testify what Garner did on the trip;

she only said he was present. (App. 202-218).

6

admitted the testimony (App. 277), including all hearsay

and leading questions about all five trips,“ and it was read

to the jury. The court then recalled Robinson for “cross-

examination” concerning his grand jury testimony. He

continued to refuse to testify except to state that the

testimony was a “mistake” and that the testimony was

“untrue.” (App. 403-413).*

The jury convicted Garner on both conspiracy counts

and on one substantive count. The court sentenced him

to a consecutive ten year term of imprisonment on each

count, plus a consecutive special parole term of three

years on each count.

A divided Court of Appeals affirmed Garner’s convic-

tion. The majority based its decision primarily on a

related case, United States v. West, _ F.2d __ (4th

Cir., Feb. 13, 1978) (Annexed as Appendix B), decided a

few days before this one, which held that the exclusive

test for the admissibility of grand jury testimony under

both Rule 804(b)(5) and the Sixth Amendment is its trust-

worthiness. Here, the majority found the entire grand

jury testimony reliable because one small section of it

was corroborated by McKee, and because there was

“evidence” (the foundation of which was the grand jury

testimony itself) that the defendants had travelled to

Europe.

After the court admitted the grand jury testimony, it

allowed specific objections to parts of the transcript which were

otherwise objectionable. (App. 283-322). Garner objected to

many portions of the testimony which contained leading questions,

hearsay, multiple hearsay and unintelligible and unresponsive ans-

wers; the court, however, sustained only the one objection which

the government agreed was correct. (App. 287-88).

With respect to Robinson’s recall and denial of the truth of

the testimony, the Court of Appeals correctly held that the few

questions Robinson answered when recalled did not satisfy the

requirements of the Confrontation Clause for cross-examination.

Infra, at 13a.

7

Judge Widener dissented on the basis of his opinion in

United States v. West, in which he rejected three central

aspects of the majority’s holding. He criticized the

majority for adopting so undemanding a standard or relia-

bility in weighing the trustworthiness of the testimony

under the Rules of Evidence; for admitting, over a Con-

frontation Clause objection, extensive hearsay evidence

which was not even within a recognized hearsay excep-

tion; and for refusing to distinguish between standards of

admissibility which apply under the Rules of Evidence

and those which apply under the Confrontation Clause.

Judge Widener explained:

I see the use of Brown’s grand jury testimony to be

no more than the disreputable trial by affidavit, the

very cause of the Confrontation Clause. Infra, at

41a.

The Court of Appeals also affirmed Garner’s consecu-

tive conspiracy count sentences from the same conduct

and for which the government’s proof was the same. It

recognized that the circuits were evenly split on the ques-

tion, and adopted the view that Congress permitted such

consecutive sentences, though neither the Fourth Circuit

nor any other court ever discussed the legislative history

of the two statutes.

United States v. Houltin, 525 F.2d 943 (5th Cir. 1976)

vacated sub nom. Croucher v. United States, 429 U.S. 1034 (1977),

modified 553 F.2d 991 (1977) (permitting consecutive sentences);

United States v. Marotta, 518 F.2d 681, 685 (9th Cir. 1975) (per-

mit ting consecutive sentences); United States v. Honneus, 508 F.2d

566 (Ist Cir. 1974) cert. denied, 421 U.S. 948 (1975) (prohibiting

consecutive sentences); United States v. Adcock, 487 F.2d 637

(6th Cir. 1973) (prohibiting consecutive sentences).

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD RESOLVE A CONFLICT OF CIR-

CUITS ON THE COMPELLING QUESTION WHETHER

THE FEDERAL RULE} OF EVIDENCE OR THF. CON-

FRONTATION CLAUSE PERMIT CONVICTIONS ON CON-

SPIRACY CHARGES ON THE BASIS OF GRAND JURY

TESTIMONY ALONE

This case raises in a dramatic fashion one of the funda-

mental issues of procedural justice, whether the lack of

opportunity to cross examine the government’s leading

witness is tantamount to conviction by a “paper trans-

cript,” Dutton v. Evans, 400 U.S. 74, 87 (1970), or trial

by affidavit. It also presents the question whether a

“residual” hearsay exception contained in the Federal

Rules of Evidence may be construed to allow a criminal

conviction on two narcotics conspiracy counts by hearsay

grand jury testimony alone. These questions, which have

brought widely divergent answers in the circuits, have

such vast consequences for the adversary system that

they must be answered by this Court.

In the past, it was extremely rare for the government

to attempt to introduce into evidence grand jury testi-

mony of a witness unavailable for trial. As a glance at the

testimony here demonstrates so well, grand jury testi-

mony is invariably taken in an atmosphere in which the

prosecutor leads the witness, suggests answers, cajoles and

often coerces. There is no hint of cross examination.

Hearsay and multiple hearsay answers are common, even

invited by the prosecutor for investigative reasons.

Finally, it is given out of the defendant’s presence; as

Judge Widener observed in dissent in United States v.

West, — F.2d — (4th Cir., Feb. 13, 1978):

9

[W]e must recognize that a witness will often make

accusations behind the back of the accused which

he will not repeat to his face. Infra at 42a.

For these reasons, its use at trial, except as a prior incon-

sistent statement, has long been forbidden.

Now, however, in a radical break with the past, the

government routinely attempts to introduce grand jury

testimony where a witness is not available. These at-

tempts are premised on a hearsay exception in the Fed-

eral Rules of Evidence governing statements not specific-

ally covered by any traditional hearsay exception. Fed.

R.Evid. 804(b)(5). That narrowly drawn rule permits

such statements to be admitted only if certain conditions

are met. These conditions require that the statement

contain equivalent guarantees of trustworthiness equiv-

alent to those of traditional exceptions, that notice of its

proposed use be given to the opposing party, and that the

general purpose of the Rules of Evidence and the inter-

ests of justice” will best be served by admission of the

testimony.

The question here is whether the catch-all exception,

with its explicit qualifications and limitations was in-

tended by Congress —.and thus may be interpreted — to

be an open-ended invitation to the government to obtain

a conviction through the use of grand jury testimony

when a witness is not available. The question is compel-

ling not only because it concerns the scope of the use of

hearsay in federal trials, but also because the conclusion

of the majority below destroys a criminal defendant’s

Constitutional right to confront witnesses against him.

The question has received conflicting answers in courts

of appeals. Besides the majority here, one circuit has held

that Rule 804(b)(5) may permit admission of a witness’

grand jury testimony, United States v. Carlson, 547 F.2d

10

1346 (8th Cir. 1976), cert. denied, 413 U.S. 914

(1977). Another circuit arrived at the opposite re-

sult, suggesting that Rule 804(b)(5) rarely, if ever, per-

mits use of grand jury testimony at trial under these cir-

cumstances. United States v. Gonzalez, 559 F.2d 1271

(5th Cir. 1977). Neither of these decisions reached the

Confrontation Clause issue. On the other hand, the

Second Circuit, in an opinion by Judge Friendly, has held

that, aside from any considerations under applicable rules

of evidence, the admission of the grand jury testimony of

a witness who never testifies at trial is forbidden by the

Confrontation Clause of the Sixth Amendment. United

States v. Fiore, 443 F.2d 112 (2d Cir. 1971).

A.This Court Should Resolve The Proper Scope Of

The Residual Hearsay Exception In The Federal

Rules Of Evidence, Which Has Had Varying Interp-

retations In The Circuits.

The drafters of the Federal Rules of Evidence did not

want to freeze the law of hearsay in the form of the cod-

ified list of hearsay exceptions appearing in Rules 803

and 804 of the Federal Rules of Evidence. They pro-

posed to allow new hearsay exceptions to emerge grad-

ually, but under tight restrictions, to cover “new and

presently unanticipated situations which demonstrate

a trustworthiness within the spirit of the specifically

stated exceptions.” Advisory Comm. Notes on Pro-

posed Fed. R. of Evid., 4 Weinstein’s Evidence 803-55

(1977). The exception was further narrowed in Congress.

The Senate Judiciary Committee specifically warned that

the exception was intended by the Senate Judiciary Com-

mittee to be used very rarely, in only exceptional cir-

cumstances.” The Committee did not “intend to estab-

lish a broad license for trial judges to admit hearsay”

11

not otherwise admissible under the Rules. Sen. Rep. No.

93-1277, 93rd Cong., 2d. Sess., at 20 (1974).

The Fifth Circuit has been faithful to the intended

scope of Rule 804(b)(5), holding, in circumstances simi-

lar to these — without cross examination, replete with

leading questions from the prosecutor which would be

prohibited at trial and given under compulsion — that the

proferred grand jury testimony was inadmissible under

the Rule even if crucial to the government’s case. United

States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977). The

court explained further that an oath as a protection

against perjury loses all significance where a witness is

testifying under a grant of immunity.

In the Fourth and Eighth Circuits, in contrast, the resi-

dual hearsay exception has had the opposite of its in-

tended effect, permitting grand jury testimony an unex-

pected vehicle for admissibility. Both the majority below

and in United States v. Carlson, 547 F.2d 1346 (8th Cir.

1976), cert. denied, 413 U.S. 914 (1977) essentially

treated the residual hearsay exception as a license to

admit whatever the court chooses into evidence.

That conflict alone would warrant a grant of Certior-

ari. The issue involved, however, requires more than the

resolution of a conflict of circuits. It concerns the scope

of the hearsay exception containing the explicit limita-

tion that the evidence profferred must be as reliable as tra-

ditional hearsay exceptions, most of which have evolved

over decades and even centuries. To apply that standard

to an entire grand jury transcript, itself full of hearsay

and leading questions, on the basis of “corroboration”

of a small fraction of it, ignores the language and legis-

lative intent of the Rule. If the views of the Fourth and

Eighth Circuits prevail, one would have to agree with the

12

District Judge here that those exceptions “obviate or

supercede,” all other hearsay exceptions. This Court

should not permit that interpretation, so contrary to the

letter, spirit and intent of the Federal Rules of Evi-

dence, to stand.

B. Ihe Conspiracy Convictions Below, Based on

Grand Jury Testimony Alone, Conflict With The

Values Protected By The Confrontation Clause,

The Decisions Of This Court, And A Decision Of

The Second Circuit.

The admission of Robinson’s grand jury testimony was

in derogation not only of the Federal Rules of Evidence,

but also of the Confrontation Clause of the Sixth Amend-

ment. See Dutton v. Evans, 400 U.S. 74 (1970). The

critical measure of compliance with the Confrontation

Clause is cross examination: prior testimony of a witness,

though hearsay, may be admitted substantively against

the defendant, but only if the witness is available to be

cross examined at some time either about the statements,

California v. Green, 399 U.S. 149 (1970), or about the

underlying events, Nelson v. O’Neil, 402 U.S. 622 (1971).

If cross examination is not possible, the Confrontation

Clause precludes admission of prior testimony. Pointer v.

Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380

U.S. 415 (1965). Besides being in obvious conflict with

the cited cases, the majority’s decision here conflicts dir-

ectly with the decision of the Second Circuit in United

States v. Fiore, 443 F.2d 112 (2d Cir. 1971).

The majority below adopted the theory that trust-

worthiness is always a substitute for cross examination,

treating the Confrontation Clause as congruent with

Rule 804(b)(5). In reaching that conclusion, it relied

on a serious misreading of Dutton v. Evans, 400 U.S. 74

13

(1970). In Dutton, the court admitted the statement

because (1) it contained no assertion of a past fact, (2)

it was based on the declarant’s personal knowledge, (3)

it was unlikely to have been a result of faulty recollec-

tion and (4) it was unlikely that the declarant was lying.

Thus the Court concluded that cross examination would

have performed no useful function in determining the

truth of the statement. 400 U.S. at 88-89. The circum-

stances here were as far removed from those in Dutton

as imaginable: Robinson, who was testifying under a plea

agreement and threats of further prosecution, testified

exclusively about (1) past events and (2) matters of

which he knew only second or third hand and (3) then

denied the truthfulness of that testimony. Cross exam-

ination at trial would have thoroughly impeached the

witness.

The majority misread Dutton in yet another respect as

well. Dutton held that where cross examination is not

possible but the statement proposed to be admitted is

within a recognized hearsay exception, the Confronta-

tion Clause requires not only that the statement be trust-

worthy, but that the statement not be the government's

whole case. For confrontation has a rich, literal meaning,

to face, question and have the chance to unmask one’s

accuser. Thus no matter how “trustworthy” evidence

may be, the right of confrontation implies that in the ab-

sence of cross examination, hearsay may not be the ful-

crum of the government’s case, “crucial” or “‘devastat-

ing” to the defendant. In Dutton’s apt words, a man

cannot be convicted, as Garner was here on two conspir-

acy counts, on the basis of a “paper transcript.” 400

U.S. at 87.

Other courts of appeals have performed an analysis of

the role hearsay plays in the government’s case in a crim-

14

inal prosecution and have engaged in especially careful

examination of profferred evidence not within a recog-

nized hearsay exception. See, e.g., United States v.

Rogers, 549 F.2d 490, 500-502 (8th Cir. 1976), cert.

dented, 431 U.S. 918 (1977); United States v. Yates,

524 F.2d 1282 (D.C.Ci.. 1975). To abandon the analysis

in Dutton, as the majority did here, marks a change in the

kind of evidence the system of justice will tolerate to

support a conviction. But it does more as well, abandon-

ing as it must the traditional adversarial notion of justice,

which for so long has been the expression of principles

precious to the Constitution. That interpretation of the

sixth amendment, allowing such a transformation to

occur, requires review by this Court.

THIS COURT SHOULD RESOLVE A CONFLICT IN THE

CIRCUITS WHETHER CONSECUTIVE SENTENCES MAY

BE IMPOSED FOR CONVICTIONS UNDER SEPARATE

NARCOTICS CONSPIRACY STATUTES ARISING OUT

OF A SINGLE COURSE OF CONDUCT.

Garner received two consecutive ten year sentences for

convictions under separate conspiracy statutes, conspir-

acy to import heroin (21 U.S.C. §963) and conspiracy to

distribute heroin (21 U.S.C. §846). Despite the fact that

the government’s evidence suggests the existence of a

single ongoing conspiracy and that Braverman v. United

States, 317 U.S. 49 (1972) therefore requires that he be

sentenced only once for that conspiracy, the Fourth Cir-

cuit affirmed his consecutive sentences. As a result of

that decision, there now exists a three to two split among

the circuits on whether consecutive sentences are sustain-

able under these conspiracy statutes.®

SThe Fourth, Fifth and Ninth Circuits permit consecutive

sentences; the First and Sixth Circuits forbid them. See n.5,

supra.

15

A resolution of the conflict should be made in light of

Simpson v. United States, — U.S. , 46 U.S. L. W.

4159 (1978), where this Court held that before even

addressing the double jeopardy question such sentences

raise, courts should determine whether Congress intended

to subject the defendant to multiple penalties for a single

criminal transaction. Despite the fact that the Fourth

Circuit decision here took note of Simpson, it failed to

examine the relevant Congressional intent. Instead, it

relied on United States v. Houltin, 525 F.2d 943 (5th

Cir. 1976), vacated sub. nom. Cloucher v. United States,

429 U.S. 1034 (1977), modified, 553 F.2d 991 (5th Cir.

1977). But the court in Houltin merely cited United

States v. Marotta, 528 F.2d 681, 685 (9th Cir. 1975), as

supporting the proposition that since there exist two stat-

utes under which a defendant’s involvement in a conspir-

acy could be charged, Congress must have intended to

provide dual punishments. That reasoning, of course,

begs the question. It is agreed that there exist two stat-

utes covering the same behavior; the issue is whether Con-

gress intended that they be used to impose consecutive

sentences.

The legislative history shows no evidence of any such

intent. The two provisions, though both a part of the

Comprehensive Drug Abuse Prevention and Control Act

of 1970, Pub. L. 91-513, 84 Stat. 1236 (1970), were

drafted by separate congressional committees with dif-

ferent concerns and different jurisdiction. See H.Rep.

91-1444, 91st Cong., 2d Sess. (1970). Nowhere in that

Report or elsewhere in the legislative history is there

any explanation of the relation of the two provisions,

much less an expression of intent to authorize separate

punishments for the same transaction.

16

Further, Simpson required that the principal that

ambiguous criminal statutes be construed in favor of

lenity, United States v. Bass, 404 U.S. 336 (1971);

Rewis v. United States, 401 U.S. 808 (1971), be applied

particularly where multiple penalties may follow from a

single source of conduct. See Bell v. United States, 349

U.S. 81 (1955); Ladner v. United States, 358 U.S. 169,

178 (1958). Absent a very clear intent by Congress,

Garner’s consecutive conspiracy count sentences should

never have been permitted.

Thus, in resolving the conflict in circuits, the Fourth

Circuit should have engaged in the analysis required by

Simpson and vacated one of Garner’s sentences. Not

having done so, the serious double jeopardy problems

discussed in Simpson appear, but these questions as well

were not addressed by the court below. Because of the

conflict in circuits and the disinclination of the court

below to engage in the analysis required by Simpson,

the Court should grant Certiorari.

17

CONCLUSION

For the foregoing reasons, petitioner urges that this

Court issue a Petition for Certiorari to review the decision

below.

Respectfully submitted,

LEONARD S. RUBENSTEIN

PHILIP J. HIRSCHKOP

HIRSCHKOP & GRAD, P.C.

108 North Columbus Street

Post Office Box 1226

Alexandria, Virginia 22313

(703) 836-6595

BRUCE J. ENNIS

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

22 East 40th Street

New York, New York 10016

STEPHEN W. BRICKER

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF

VIRGINIA

Heritage Building, Suite 515

1001 East Main Street

Richmond, Virginia 23219

Attorneys for Petitioner.