Respondents Brief — Hoskins v. United States

Ottice-Supreme Court, U

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No. 84-407 NOV 10 1984

| ALEXANDER 1

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In the Supreme Court of the ¥nited jae

OCTOBER TERM, 1984

DELBERT PAUL HOSKINS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Bruton v. United States, 391 U.S. 123 ........ 3,4

United States v. Curry, 512 F.2d 1299,

cert. denied, 423 U.S. 832 2... .cccccccccccces 4

United States v. Greenleaf, 692 F.2d 182,

cert. denied, 460 U.S. 1069 ..............00.- 4

United States v. Heffington, 682 F.2d 1075 ..... 4

United States v. Slocum, 695 F.2d 650,

cert. denied, 460 U.S. 1015 ..............0e8- 4

United States v. Vadino, 680 F.2d 1329,

cert. denied, 460 U.S. 1082 .............000e- 3

Constitution and statutes:

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(1)

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-407

DELBERT PAUL HOSKINS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI! TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that the denial of a severance motion

violated his right to confrontation because at the start of his

jury trial a co-defendant did not contest involvement in

some of the crimes charged.

After a jury trial in the United States District Court for

the Northern District of Texas, petitioner was convicted on

one count of conspiracy, in violation of 18 U.S.C. 371, two

counts of interstate travel in aid of racketeering enterprises,

in violation of 18 U.S.C. 1952 and 2, and one count of

possession of cocaine with intent to distribute, in violation

of 21 U.S.C. 841(a)(l) and 18 U.S.C. 2. He was sentenced to

consecutive terms of imprisonment aggregating 30 years, a

special parole term of five years, and cumulative fines total-

ling $70,000. The court of appeals affirmed (Pet. App.

Al-Al5).!

'The court of appeals also affirmed the convictions of co-defendants

John Russell Webster, Jr., Robert Bode, and John Jay Caperton. The

co-defendants have not sought further review.

(1)

2

1. The evidence at trial, the sufficiency of which is not in

“*spute, showed that petitioner and his co-defendants were

engaged in a conspiracy to distribute cocaine in the Dallas,

Texas area. The cocaine originated from various sources in

Florida. Petitioner, a Florida source, sold large quantities

of cocaine to co-defendant Webster, who in turn supplied

cocaine to co-defendant Caperton, his friend and fellow

dealer. See Pet. App. A2-A4.

2. Petitioner contends (Pet. 7-14) that the district court’s

denial of his severance motion violated his Sixth Amend-

ment right to confront a witness against him. The “witness,”

co-defendant Webster, stated in the presence of the jury ata

“re-arraignment” 2 that he was pleading not guilty but that

he did not contest some of the overt acts listed in the

conspiracy count and the facts set out in 16 of the 20 sub-

stantive counts with which he was charged. Webster’s

counsel echoed these remarks in his opening statement. The

district court denied petitioner’s motion for a severance on

the basis of its earlier instruction to the jury to give each

defendant separate consideration (Tr. 590-591). A similar

instruction was repeated at the close of the trial (Tr. 4912,

4914-4915, 4916, 4918). Webster did not implicate any other

defendant in his initial plea responses, nor did his attorney

suggest by his opening statement, cross-examination of trial

witnesses, or closing argument that any other defendants

were guilty. Pet. App. A9.

2The district court engaged in a peculiar procedure whereby, in the

jury’s presence, defendants entered pleas to each count in the indict-

ment. See Pet. App. A7, A8. The court of appeals admonished against

continued use of this practice (id. at A7 n.4), and it is not likely to recur.

3As explained by his attorney, Webster's trial strategy was to

acknowledge the likelihood that he would be convicted on numerous

substantive counts and to contest primarily the continuing criminal

enterprise count (21 U.S.C. 848). See Pet. App. A8. The jury ultimately

was unable to reach a verdict on that count.

3

The court of appeals correctly rejected petitioner’s claim

that he was deprived of his right to confront his “accuser,”

i.e., co-defendant Webster (Pet. App. A9-Al0 & n.6). The

short answer is that Webster made no accusation against

petitioner. Webster did not name or implicate petitioner,

nor did he allude to him in any way. Of the counts to which

Webster addressed his comments, three were also charged

against petitioner (Counts 1, 16 and 17). Webster denied

“many of the [overt] acts” charged in count one, the conspir-

acy count (Pet. 8); this certainly did not suggest that peti-

tioner had conspired with him. Counts 16 and 17, respec-

tively, charged petitioner with aiding and abetting Webster

in a Travel Act and a cocaine possession offense. Webster

did not “deny the acts” charged in Count 16, but stated that

“many of the facts are incorrect” (Pet. 9). With respect to

count 17, he said simply, “I don’t dey the act” (Pet. 9-10).

Again, nothing in Webster's statements suggested that peti-

tioner aided and abetted any criminal act. Thus, the court of

appeals correctly concluded (Pet. App. A9 (footnote omit-

ted)) that “[t]he fact that Webster may have admitted his

involvement in some of the charged conspiracy and sub-

stantive counts would not require necessarily the jury to

conclude that the other codefendants, who disputed their

involvement in the charged counts, were likewise involved.

Moreover, it is noted that Webster never directly implicated

his codefendants by name in any criminal activity in the

process of pleading to the indictment.” See also United

States v. Vadino, 680 F.2d 1329, 1336 (llth Cir. 1982), cert.

denied, 460 U.S. 1082 (1983).

The court of appeals also correctly rejected (Pet. App. A9

n.6) petitioner’s reliance on Bruton v. United States, 391

U.S. 123 (1968). In Bruton, a nontestifying defendant’s con-

fession that implicated a co-defendant was introduced at

their joint trial. This Court held that the confession incrimi-

nated the nonconfessing co-defendant, who was thereby

4

deprived of his right to confront and cross-examine his

accuser. Bruton, however, involved “powerfully incriminat-

ing extrajudicial statements” that were “deliberately spread

before the jury ina joint trial” with “devastating” impact on

the nonconfessing defendant (391 U.S. at 135-136). In app-

lying the Bruton rule, the courts of appeals have found that

a violation occurs “only when the statement is both

*“clearly inculpatory”’ of the defendant and ‘ “vitally

important” ’ to the prosecution’s case.” United States v.

Slocum, 695 F.2d 650, 655 (2d Cir. 1982), cert. denied, 460

U.S. 1015 (1983). See United States v. Heffington, 682 F.2d

1075, 1082-1083 (Sth Cir. 1982); United States v. Greenleaf,

692 F.2d 182, 189 (Ist Cir. 1982), cert. denied, 460 U.S. 1069

(1983). Here, Webster’s statements were no more incrimi-

nating than a co-defendant’s mid-trial guilty plea. See, e.g.,

United States v. Curry, 512 F.2d 1299, 1303 (4th Cir.), cert.

denied, 423 U.S. 832 (1975). Indeed, because Webster's

comments accompanied his pleas of not guilty, there is little

possibility that petitioner was inculpated in any way. And,

because the statements were not evidence, were not antici-

pated by the government, and were not relied upon or

argued to support an inference of petitioner’s guilt, they

were certainly not “vitally important” to the prosecution’s

case. In short, the court of appeals correctly applied estab-

lished legal principles to the particular facts of this case.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. Lge

Solicitor General

NOVEMBER 1984

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