# Opposition — Goins v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 827

## Text

promt Court, Ute”
‘EELED
JUN 14 1979

No. 78-1609

Iu the Suyprenw Court of the Uuited States

OCTOBER TERM, 1978

BENJAMIN L. GOINS, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.
Solicitor General

PHILIP B. HEYMANN
Assistant Attorney General

SIDNEY M. GLAZER
KATHLEEN A. FELTON |
Attorneys
Department of Justice
Washington, D.C. 20530

INDEX
Page
ns emesimnannniananvbananssenes 1
I sco csbssicsendcadsectsineanees speenaienisiiceidaciaasie 2
Question presented ........ ASSIS NG RUT ee aE 2
Statement —....... Baan msuialas 2
Teen iaiirtdeaasoenedeclweese 5
ee a dad spmumcussenmene 14
CITATIONS
Cases:
Anderson vy. United States, 417 U.S. 211.. 5-6
California v. Green, 899 U.S. 149 0. 11
Chambers v. Mississippi, 410 U.S. 284... 11
Dutton v. Evans, 400 U.S. 74 ooo cece. 11,12
Green v. Georgia, No. 78-5944 (May 29,
Edie Aa si oe 13
Kirby v. United States, 174 U.S. 47 —...... 11
Mattox v. United States, 156 U.S. 237.... 11
Pointer v. Texas, 380 U.S. 400.0000... 11

United States v. Alvarez, 584 F.2d 694... 8, 10
United States v. Bagley, 5387 F.2d 162,

cert. denied, 429 U.S. 1075 00000...
United States v. Bailey, 581 F.2d 341...... 9
United States v. Barrett, 5389 F.2d 244...
United States v. Baxter, 492 F.2d 150,

cert. denied, 416 U.S. 940 20000000 oo... 12
United States v. Brandenfels, 522 F.2d

1259, cert. denied, 423 U.S. 1083 ......... 10,11

United States v. Gonzalez, 559 F.2d 1271.. 9
United States v. Haldeman, 559 F.2d-31,
cert. denied, 481 U.S. 983 0000000000000... 7

United States vy. Hoyos, 573 F.2d 1111... 8, 10

II
Cases—Continued Page
United States v. James, 510 F.2d 546,
cert. denied, 423 U.S. 855 0000.2... 7
United States v. Manarite, 448 F.2d 583,
cert. denied, 404 U.S. 947 00.0... 7
United States v. Oates, 560 F.2d 45 ........ 12
United States v. Oropeza, 564 F.2d 316,
cert. denied, 434 U.S. 1080 200000002... 8,11
United States v. Pardo-Bolland, 348 F.2d
316, cert. denied, 382 U.S. 944 000. 7
United States v. Richardson, 477 F.2d
1280, cert. denied, 414 U.S. 843 000. 6
United States v. Rogers, 549 F.2d 490,
cert. denied, 431 U.S. 918 -0000. 12

United States v. Satterfield, 572 F.2d
687, cert. denied, No. 77-6600 (Oct. 2,

OUI Ps cimcseescteseasertiererstincbsnabnasaslipkeime atte necks 10-11
United States v. Scholle, 553 F.2d 1109,

cert. denied, 434 U.S. 940 000. 6,12
United States v. Smith, 550 F.2d 277,

cert. denied, 434 U.S. 841-00. 6
United States v. White, 553 F.2d 310,

cert. denied, 4381 U.S. 972 0000000... 8
United States v. Williams, 435 F.2d 642,

cert. denied, 401 U.S. 995 00000000000. 6
United States v. Zamarripa, 544 F.2d 978,

cert. denied, 429 U.S. 1111 200002000... 6

Constitution, statutes and rules:
United States Constitution, Sixth Amend-

2
2
OO Or a 2
6 USX. NG) 2

Il

Constitution, statutes and

rules—Continued Page
Federal Rules of Evidence:
Rule 801 (d) (2) (A) .........----.-22-------+- 5
Rule 801(d) (2) (E)............--...----------- 5
Rule 804(b) (8) .............................. 7, 8,9, 10
Miscellaneous:

Advisory Committee Note to Rule 804,
Federal Rules of Evidence, 56 F.R.D.

S50 TIGR knocks 9
McCormick on Evidence (2d ed. 1972).... 12
4 Weinstein’s Evidence (1978) ............---- 8

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1609
BENJAMIN L. GOINS, PETITIONER
Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)
is reported at 593 F.2d 88.

JURISDICTION

The judgment of the court of appeals was entered
on February 26, 1979, and a petition for rehearing
was denied on March 21, 1979. The petition for a
writ of certiorari was filed on April 20, 1979. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

(1)

2

QUESTION PRESENTED

Whether the admission into evidence of out-of-court
statements made by a declarant who was deceased at
the time of trial violated the Federal Ruies of Evi-
dence or petitioner’s constitutional right of confron-
tation.

STATEMENT

Following a jury trial in the United States District
Court for the Kastern District of Missouri, petitioner
was convicted of racketeering, in violation of 18
U.S.C. 1962(a) (Count One), testifying falsely be-
fore a grand jury, in violation of 18 U.S.C. 1623
(Count Two), soliciting false testimony before a
grand jury, in violation of 18 U.S.C. 1503 (Count
Three), and three counts of filing false income tax
returns, in violation of 26 U.S.C. 7206(1) (Counts
Four to Six). He was sentenced to consecutive prison
terms of five years on Count One, one year on Count
Two, and one year on Count Three, to be followed by
five years’ probation. On the other counts he was
sentenced to concurrent terms of one year’s imprison-
ment, which was suspended in favor of five years’
probation. He was also fined $3,000 on Count One
and $1,000 on each of the other five counts. The
court of appeals affirmed (Pet. App. A-1 to A-11).

1. The evidence, the sufficiency of which is not
disputed, is summarized in the opinion below (Pet.
App. A-2 to A-3). It showed that petitioner was the
License Collector for the City of St. Louis from 1968
until 1977. His duties included collecting cigarette
stamp tax and license fees for cigarette vending ma-

3

chines (Tr. 201, 1274, 1280).' Petitioner accepted
bribes from Raymond Scharf in return for permit-
ting Scharf to sell unstamped cigarettes in unlicensed
vending machines throughout St. Louis (Tr. 275-276,
279, 282-284, 405, 412-413, 437, 439, 453-454, 507).
Petitioner used part of the funds received from
Scharf to finance the concealed purchase of a cocktail
lounge operated by Joyce Harlston (Tr. 960-962, 291-
293; Gov. Exh. 8A). For the years 1973 to 1975
petitioner failed to pay income tax on any of the
bribery income or on the income received from the
cocktail lounge.

Thereafter, petitioner testified falsely before a
federal grand jury that was investigating these mat-
ters. Petitioner also encouraged Harlston to give
false and misleading testimony before the grand jury,
advising her in the presence of her daughter to con-
ceal his interest in the cocktail lounge and to claim
that the money used to open the cocktail lounge had
been left to her by a deceased relative (Tr. 969-970).

2. Veronica Harlston Raiford (Harlston’s daugh-
ter), Samuel Davis (an employee at Harlston’s cock-
tail lounge) and Gregory Hawkins (a police officer
and Harlston’s friend) were among the more than 50
government witnesses at petitioner’s trial.

Raiford testified about the advice that she heard
petitioner give her mother prior to the grand jury
appearance. Raiford also said that her mother had
told her that she had testified falsely before the grand

“Tr” refers to the trial transcript; “H. Tr.” refers to the
hearing on petitioner’s motion to suppress.

4

jury about the source of the financing for the lounge
and had concealed petitioner’s interest in the lounye
(Tr. 970). Davis testified that in the summer of
1975, after the Internal Revenue Service had begun
to audit the books of the cocktail lounge, Harlston
told petitioner in Davis’s presence that she needed a
receipt of some sort for the $16,000-$17,000 that she
had paid petitioner. Davis also stated that Harlston
had mentioned the same subject to him before the
meeting with petitioner (‘T'r. 906, 908-909), Hawkins
testified that in the summer of 1976, after the IRS
had subpoenaed records pertaining to the operation
of the lounge, Harlston admitted to him that she had
lied before the grand jury at petitioner’s behest (‘T'r.
1046-1047) .°

The government also introduced taped conversa-
tions recorded with the consent of Harlston, who
began to cooperate in the government’s investigation
in September 1976. In these recorded conversations
petitioner admitted his receipt of money from Scharf,
his investment in the cocktail lounge and efforts to
conceal his interest, and his own perjury before the
grand jury) (H. Tr. 21-30; Tr. 1058-1070; Gov.
Iixhs. 41-45). Harlston was to have been a povern-
ment witness at petitioner’s trial, but she died less
than three weeks before the trial began.

ne

* Petitioner did not object to this testimony during Hawk-
ins’ direct examination (Tr. 1042-1047),

6

ARGUMENT

Petitioner’s sole contention is that the introduction
of the out-of-court statements made by Harlston to
her daughter, to Davis, and to Hawkins violated both
the Federal Rules of Evidence and his Sixth Amend-
ment right of confrontation.

We note at the outset that, even if these statements
were improperly admitted at trial, the error was
harmless beyond a reasonable doubt. As noted above,
Davis testified that, after Harlston had told him
about the tax problem occasioned by the payments to
petitioner, he met with both Harlston and petitioner
to discuss the matter. The incriminating statements
made by petitioner at this meeting were plainly ad-
missible (see led. R. Evid. 801 (d)(2)(A)), and the
prior conversation between Harlston and Davis on
the same subject was thus merely cumulative. Simi-
larly, Harlston’s statements to her daughter and
Hawkins that she had lied before the grand jury did
not add substantially to petitioner’s admissions in the
tape recorded conversations or to the daughter’s other
testimony that she had overheard petitioner advise
her mother to conceal his interest in the lounge.

In any event, Harlston’s statements were properly
admitted in the circumstances of this case.

la. Harlston’s statement to Davis regarding the
payments to petitioner that had been concealed from
the IRS was made during the course and in further-
ance of a conspiracy to defraud the United States of
income taxes. It was thus admissible under Fed. R.
Evid. 801(d)(2)(E). Anderson v. United States,

6

417 U.S. 211, 218 (1974). Harlston made it clear
to Davis that she did not want to reveal petitioner as
the recipient of the funds (Tr. 905-909). Davis testi-
fied that he suggested having someone else simply
declare the income and pay the taxes, but this solu-
tion was rejected (Tr. 910-911). Instead, petitioner,
Harlston and Davis decided to obtain a receipt from
Scharf showing that the money given to petitioner
had been turned over to Scharf as repayment of a
loan (Tr. 911). This evidence plainly supports the
court of appeals’ conclusion (Pet. App. A-6) that
Harlston’s statement to Davis was part of a con-
spiracy directed at obtaining his help in continuing
the concealment from the IRS of petitioner’s financial
involvement in the cocktail lounge. See United Slates
v. Scholle, 553 F.2d 1109, 1117-1118 (8th Cir.), cert.
denied, 434 U.S. 940 (1977); United Slates v. Smith,
550 F.2d 277, 281-282 (5th Cir.), cert. denied, 434
U.S. 841 (1977); United States v. Zamarripa, 544
F.2d 978, 981-982 (8th Cir. 1976), cert. denied, 429
U.S. 1111 (1977); United States v. Richardson, 477
I’.2d 1280, 1282-1283 (8th Cir.), cert. denied, 414
U.S. 843 (1973); United States v. Williams, 435 F.2d
642, 645 (9th Cir. 1970), cert. denied, 401 U.S. 995
(1971)." .

"Narratives of past events offered as an integral part of
the planning of future strategy in furtherance of a conspiracy
fall within the co-conspirator exception to the hearsay rule.
“A statement of one conspirator to another during the active
course of a conspiracy, giving the full setting of an upset,
with the purpose of getting reassurance or other help, does
not cease to be in furtherance of the conspiracy because it

7

b. Harlston’s remarks to her daughter and_ to
Hawkins concerning her grand jury perjury were
properly admitted as declarations against penal in-
terest. Fed. R. Evid. 804(b) (2). Although petitioner
emphasizes Harlston’s eventual cooperation with the
government and the favorable resolution of her po-
tential criminal liability, he cites no evidence that she
was even attempting to bargain with the government
at the time she made the declarations in question.
Harlston’s statement to her daughter was made im-
mediately after her grand jury appearance, and the
similar admission to Hawkins occurred when she was
seeking his advice about how to respond to an IRS
subpoena. It was not until after Hawkins advised
her to go to the authorities and tell the truth that
Harlston approached the government and agreed to
cooperate,

Harlston’s obvious exposure to criminal charges at
the time she made the statements, and her choice of a
close friend and a relative as confidants, both indi-
cate the trustworthiness of the declarations. As the
court of appeals concluded (Pet. App. A-4 to A-5),
the test of admissibility of such statements—whether
the statement is so contrary to the declarant’s interest

contains a natural and pertinent reference to a past fact.”
United States v. Pardo-Bolland, 348 F.2d 316, 324-325 (2d
Cir.), cert. denied, 382 U.S. 944 (1965). See United States
v. Haldeman, 559 F.2d 31, 110-111 (D.C. Cir. 1976) (en
banc), cert. denied, 431 U.S. 988 (1977); United States v.
James, 510 F.2d 546, 549-550 (5th Cir.), cert. denied, 423
U.S. 855 (1975); United States v. Manarite, 448 F.2d 583,
590-591 (2d Cir.), cert. denied, 404 U.S. 947 (1971).

8

in avoiding criminal liability that a reasonable person
in declarant’s position would not have made the state-
ment unless he believed it to be true—was satisfied
here. See United States v. Hoyos, 573 F.2d 1111,
1115 (9th Cir. 1978); United States v, Oropeza, 564
I'.2d 316, 324-325 (9th Clr. 1977), cert. denied, 434
U.S. 1080 (1978); Uniled States v. Bagley, 587 F.2d
162, 165-167 (5th Cir. 1976), cert. denied, 429 U.S.
1075 (1977).*

Petitioner argues that the use of statements against
penal interest inculpating the accused has been criti-
cized by commentators, notably Judge Weinstein, as
being inherently untrustworthy. 4 Weinstein’s Hvi-
dence § 804(b) (3) [03], at 804-93 to 804-95 (1978).
Nevertheless, Rule 804(b) (3) unquestionably allows
the use of such statements. See United Slates v. Bar-
rett, 539 F.2d 244, 250 (1st Cir. 1976). The Ad-
visory Committee Notes explain that declarations that
implicate the accused may be included in the category
of statements against interest, so long as they qualify
as actually against the declarant’s interest:

4A second requirement, that corroborating circumstances
clearly indicate the trustworthiness of the statement, applies
only to declarations exculpating the accused. Fed. R. Evid.
804(b) (3). See United States v. White, 553 F.2d 310, 313 &
n.8 (2d Cir.), cert. denied, 431 U.S. 972 (1977). But see
United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).
In any event, as we have noted, Harlston’s statements were
amply corroborated. Raiford was present when petitioner
told Harlston what to say to the grand jury (Tr. 969-970),
and the jury also heard tape recordings of petitioner’s admis-
sions of his efforts to frustrate the government’s investiga-
tions (H. Tr. 21-30; Tr. 1058-1070; Gov. Exhs. 41-45).

9

Whether a statement is in fact against interest
must be determined from the circumstances of
each case. Thus a statement admitting guilt and
implicating another person, made while in cus-
tody, may well be motivated by a desire to curry
favor with the authorities and hence fail to
qualify as against interest. On the other hand,
the same words spoken under different cireum-
stances, e.g., to an acquaintance, would have no
difficulty in qualifying.
56 F.R.D. 183, 828 (1973). In the present case, as
discussed above, the circumstances surrounding Harl-
ston’s statements make it quite unlikely that her
remarks were actually self-serving and therefore
untrustworthy.

Each of the decisions cited by petitioner merely
illustrates that the admissibility of a declaration under
Rule 804(b) (8) depends upon a case-by-case analysis
of a number of factors." In United States v. Bailey,
581 F.2d 341, 345 (3d Cir. 1978), the court refused
to admit a statement implicating both the defendant
and the deciarant because the confession had been
given while the declarant was in police custody and
after he had been offered a plea bargain. Similarly,
the statements held inadmissible in United States v.
Gonzalez, 559 F.2d 1271, 1273 (5th Cir. 1977), had
been made after the declarant had been convicted,

* Petitioner characterizes these cases as supporting his con-
stitutional claim (Pet. 12). In fact, however, the decisions in
all three cases cited (Pet. 12-13) rested on evidentiary
grounds alone.

10

given immunity, and pressured to testify by both
the prosecutor and the grand jury. The court con-
cluded that in these circumstances the giving of the
testimony was in the best interest of the witness,
rather than against it. See also United States v.
Alvarez, 584 F.2d 694, 701 (5th Cir. 1978). Here,
by contrast, Harlston’s statements were made to her
daughter and a friend, not to government. officials.
She was not in police custody at the time, nor is there
any indication in the record that she was attempting
to strike a bargain with the government when she
made her admissions. Harlston was still very much
subject. to criminal liability; her later decision to
cooperate cannot serve to change her earlier state of
mind.

Finally, contrary to petitioner’s contentions (Pet.
13), United States v. Brandenfels, 522 F.2d 1259
(9th Cir), cert. denied, 423 U.S. 1083 (1975), does
not confliet with the instant ease. Although in Bran-
denfels the Ninth Cireuit’ reiterated its refusal to
recognize the rule allowing admission of declarations
against penal interest (522 F.2d at 1263), the court
subsequently abandoned that position in light of the
Federal Rules of Kvidence and now leaves the de-
termination of admissibility under Rule 804(b) (3)
to the diseretion of the trial court, subject to applica-
tion of the proper test. United States vy. Hoyos,
supra, 573 F.2d at 1115; United States vy, Satterfield,
572 F.2d 687, 690 (9th Cir.), cert. denied, No. 77-

11

6600 (Oct. 2, 1978); United States v. Oropeza, supra,
D64 F.2d at 325."

In sum, petitioner does not dispute that. the Federal
Rules of Evidence allow the introduction of hearsay
statements made in furtherance of a conspiracy or
against penal interest. Although he asserts that
Harlston’s statements did not satisfy these exceptions
for a number of reasons, the district court and the
court of appeals rejected his claims. These essentially
fact-bound determinations do not warrant further
review,

2. Petitioner argues that the admission of Harl-
ston’s hearsay statements, even if consistent with the
Federal Rules of Evidence, violated his Sixth Amend-
ment right of confrontation.’ Specifically, he claims

"Moreover, Brandenfels was a case in which the sstate-
ment—exculpating the accused——was not ayainst the declar-
ant’s interest and was otherwise unreliable. 522 F.2d at 1264.

™The Confrontation Clause has never been construed to
create an absolute bar to the admission of hearsay testimony
by an unavailable declarant. See Chambers v. Mississippi,
410 U.S. 284, 295 (1973). As the Court noted in Dutton v.
Evans, 400 U.S, 74, 89 (1970), “the mission of the Confronta-
tion Clause is to advance a practical concern for the accuracy
of the truth-determining process in criminal trials * * *.”
Hence, hearsay testimony is frequently introduced in the
form of, ¢.g., co-conspirator declarations, former testimony,
dying declarations, and statements against interest, and al-
though the defendant may be deprived of the opportunity
literally to “confront” his accuser at trial, the constitutional-
ity of admitting such evidence pursuant to recognized ex-
ceptions to the hearsay rule has repeatedly been upheld. See,
e.g., Mattox v. United States, 156 U.S. 287, 248 (1895) ; Kirby
Vv. United States, 174 U.S. 47, 61 (1899); Pointer v. Texas,
380 U.S. 400, 407 (1965) ; California v. Green, 399 U.S. 149,

12

(Pet, 9-12) that the court of appeals erroneously re-
lied on its previous decision in) United States vy,
Scholle, supra, in its determination of the constitu-
tional issue but that Scholle involved statements of a
co-conspirator, not statements against penal interest
inculpating the accused,

Petitioner’s assertions are not supported by the
record, The court of appeals relied on Seholle for its
statement of the appropriate test to apply in assess-
ing the constitutionality under the Confrontation
Clause of any exception to the hearsay rule involving
the out-of-court statement of an unavailable declarant
(Pet. App. A-6 to A-7). That test, drawn from
Dutton vy. Hvansa, 400 U.S, 74 (1970), consists of an
analysis of the circumstances surrounding the giving
of the statement, with a focus on various factors that
could affect. the integrity of the faet-finding process,
e.g., Whether the statement bears sufficient indicia of
reliability, whether the evidence was crucial to the
government's case, whether the jury had an adequate
opportunity to weigh the credibility of the statement,
and whether the trial court gave appropriate instrue-
tions. Pet. App. A-7, quoting United States v, Scholle,
supra, 553 F.2d at 1119-1120. See also United States
v, Oates, 560 F.2d 45, 81-83 (2d Cir, 1977); United
States vy. Rogers, 549 F.2d 490, 500-502 (8th Cir
1976), cert. denied, 431 U.S. 918 (1977); United
States v. Barter, 492 F.2d 150, 177 (9th Cir, 1973),
cert, denied, 416 U.S, 940 (1974).

165-168 (1970). See generally MeCormick on Evidence § 262,
at 606-607 (2d ed, 1972).

13

Applying this test, the court of appeals correctly
found that the statements admitted here did not. vio-
late petitioner’s Sixth Amendment right (Pet. App.
A-7 to A-8). Harlston made all of the statements
spontaneously to a close friend and a relative in whom
she would be expected to confide and to whom she
had no apparent reason to lie, See Green v, Georgia,
No, 78-5944 (May 29, 1979). The statements could
not have been based on faulty recollection or pereep-
tion, Moreover, as the court below noted (Pet. App.
A-8), the statements were amply corroborated by
other evidence af trial and were not erucial to the
case against petitioner. Scharf'’s testimony estab-
lished the payment of the bribes, as well as peti-
tioner’s investment of those funds in’ the coektail
lounge, and this testimony was strongly confirmed
by a number of witnesses and documents, Petition-
er’s own tape-recorded admissions also proved his
concealed interest in the tavern, his false statements
to the grand jury, and his encouragement of Harl-
aton’s perjury. In sum “fo]verwhelming evidence”
(Pet. App. A-2) was offered at trial that petitioner
accepted bribes from Scharf and used the money to
purchase the lounge operated by Harlston. The jury
thus had a substantial basis for assessing the eredi-
bility of Harlston’s statements,

i?

14
CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

WaAbDE H. McCrer, Jr.
Solicitor General

PHILIP B. HEYMANN
Assistant Attorney General

SIDNEY M. GLAZER
KATHLEEN A. FELTON

Attorneys
JUNE 1979

TW ov. &. CoveenMenT Peintine Orrick, 1970 2en213 1o

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