Opposition Brief — DiCaro v. United States

supreme Court, U.3,

— FILED

FEB 28 1986

No. 85-1007) ~ JOSEPH F. SPANIOL, JR,

LERK

|

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

PAUL DICARO, PETITIONER

¥

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the grand jury testimony of a witness who

feigned complete amnesia at trial is admissible under Fed.

R. Evid. 801(d)(1)(A), as a prior inconsistent statement, and

under the Confrontation Clause of the Sixth Amendment.

2. Whether petitioner’s conviction for violating the

Hobbs Act, 18 U.S.C. 1951, should be reversed on the

ground that he was prejudiced by evidence admitted in

connection with a count that was reversed on appeal for

failure of the indictment to state an offense.

(I)

TABLE OF CONTENTS

Page

Tee ives irate A OKANO ee stn ees I

TE SS a a l

ek ee a unee l

IE EEE te 8

De Cl vee ewee ce 16

TABLE OF AUTHORITIES

Cases:

Bruton v. United ee Bb 4 15

California v. Green, 399 U.S. 149 ............. 12

Delaware vy. Fensterer, No. 85-214

a Sa on Gus bd +s & 06 0 00'e 0s We 12

Douglas v. Alabama, 380 U.S. 415 ..... 11, 14, 15

Dutton v. Evans, 400 U.S. 74 ............. 12, 14

Haroco, Inc. v. American National Bank &

Trust Co., 747 F.2d 384, aff'd.No. 84-822

ee ee kak x ek 6A ne ne 0-0 0:0 6s 6

New Mexico vy. Earnest, cert. granted,

og es TS) 15

Pointer v. Texas, 380 U.S. 400 ............ 11, 14

Schaffer v. United States, 362 U.S. 511 ........ 16

United States v. Baker, 722 F.2d 343,

re, Ce GS 00S, FOS? oc wc ccc s veces ves 12

United States v. Distler, 671 F.2d 954,

E> ES 9

(III)

IV

Page

Cases—Continued:

United States v. Insana, 423 F.2d 1165,

oort. domind, GO U8, BOE vin cdcsdcceavccsss 12

United States v. Marchand, 564 F.2d 983,

Cont, Gemee. GOs Ui, WES 6 kk 4% son tanecapare sy

United States v. Murphy, 696 F.2d 282,

curt. Gombe. GEE Ui. Fe vac ck ccecececccucvs Q

United States v. Payne, 492 F.2d 449,

Clvt. Geese. Gio Ui. Bre 6 doc cee cee cncavee 12

United States v. Rogers, 549 F.2d 490,

cert. denied, 431 U.S. 918 ............. 9,10, i2

United States v. Russell, 712 F.2d 1256 ......... 9

United States v. Shue, 766 F.2d 1122 ......... 16

United States vy. Valenzuela, 596 F.2d 824,

Ott, Gee. GES GIs Ue 406s oo wee snk sarias 16

United States v. Williams, 737 F.2d 594,

cert. denied, No. 84-256 (Feb. 25,

it, Eee ere eee es Pree ee ee eee 10

United States ex rel. Thomas v. Cuyler,

ee ee ek acdsee ewes aed 12

i.e, 3 DLE Et eerererrerrrre 12

Constitution, statutes and rules:

tk eo ee 2 ee eee Hi. §2, 33

Confrontation Clause ....... 6, 8, 12, 13, 14, 15

PU PE, TUF ME EE os ccc anccsecdecvens 2

Racketeer Influenced and Corrupt Organizations

ae gk ae. rer 1,6

Page

Constitution, statutes and rules—Continued:

Fed. R. Evid. :

coscscha ni ME EE Th: 10

Rule 801(d)(I)(A) ... 0.0 .0000.0.. 3, 7, 8, 9, 1

PT ID ivedik ncnncxdcasnceaktccue 9

Miscellaneous:

4 D. Louisell & C. Mueller, Federal

ee on a rie 9,10

In the Supreme Court of the United States

OcTOBER TERM, 1985

No. 85-1007

PAUL DICARO, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-28a) is

reported at 772 F.2d 1314.

JURISDICTION

The judgment of the court of appeals was entered on

September 3, 1985. A petition for rehearing was denied on

October 4, 1985 (Pet. App. Ib). The petition for a writ of

certiorari was filed as of December 3, 1985. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Northern District of Illinois, petitioner was con-

victed on one count of conducting the affairs of an enter-

prise through a pattern of racketeering activity, in violation

of the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. 1962(c), and one count of interfering

(1)

2

with interstate commerce by committing an armed robbery,

in violation of the Hobbs Act, !8 U.S.C. 1951.' He was

sentenced to ten years’ imprisonment on the Hobbs Act

conviction and five years’ probation on the RICO count.

The court of appeals affirmed petitioner’s Hobbs Act con-

viction and reversed the RICO conviction (Pet. App.

la-28a).?

1. The evidence adduced at trial, the sufficiency of which

is not in dispute, showed that petitioner, along with a vary-

ing band of associates, carried out a series of armed robber-

ies, burglaries, and thefts, as well as an attempted murder,

over a seven-year period from September 1970 to January

1978. Seven criminal acts were charged as predicate acts for

the racketeering count; one of these acts, an armed robbery

of a Chicago grocery store known as the Halsted Foods

Center, Inc., also served as the basis for the Hobbs Act

charge. The evidence offered to prove the Hobbs Act

offense, like that offered to prove the other crimes, con-

sisted principally of testimony from accomplices who had

also participated in the robbery.’

The Halsted Foods robbery occurred on January 19,

1978 (4 Tr. 135-136). On that day, according to the testi-

mony of David Willis, one of the participants, he, Ronald

Brown, and Joe Zito “cased” the store (3 Tr. 17). They

watched as a Brinks Company armored car arrived and the

guards took several bags of money inside (3 Tr. 17-18). The

night janitor arrived at about 8:00 p.m. and the store closed

'Petitioner’s co-defendant, Michael Gurgone, was also charged in

Count 2 with violating the Hobbs Act, but he was acquitted at trial.

?The United States has not sought review by this Court of the court of

appeals’ ruling on the RICO count.

3Because petitioner's conviction on the RICO count was set aside by

the court of appeals, we will not discuss the facts underlying that offense

except as it bears on petitioner’s Hobbs Act conviction.

3

shortly thereafter (4 Tr. 134-135). Willis, Zito, and Luanne

Walz then continued the surveillance in order to learn the

janitor’s routine (3 Tr. 18-19). After they finished, they

returned to Walz’s home and picked up Brown (3 Tr. 19-20).

After donning ski masks, Willis, Zito, and Brown drove

back to Halsted Foods in a car that Willis and Brown had

previously stolen (3 Tr. 20).

At the store, Willis helped Brown climb a nearby tele-

phone pole and then returned to the car to wait (3 Tr.

20-21). Zito talked with Brown by means of a walkie-talkie

while Willis listened to a police scanner. A few minutes

later, Brown gave Willis a gun and told him to watch the

janitor, who had been handcuffed and tied to a chair (ibid.).

Willis saw two more men, whom he identified at trial as

petitioner and Gurgone, enter the store carrying acetvlene

tanks and a hose (3 Tr. 22-25). While Willis guarded the

janitor, the others went to the front of the store, where the

offices and safes were located. Willis then smelled some-

thing burning and heard crackling and popping noises com-

ing from the office (3 Tr. 23-25). Finaily, Willis left the store

with Zito and Brown, and they returned to Walz’s home

where they divided the money taken from the store (3 Tr.

25-27).

2. As corroboration for Willis’s testimony, the govern-

ment called Ronald Brown, who twice before had impli-

cated petitioner in the Halsted Foods robbery in testimony

before a federal giand jury in 1979 and 1982. However, ina

voir dire conducted outside the jury’s presence, Brown

stated that he did not recall going to Halsted Foods on the

night of the robbery; he further stated that he would invoke

his Fifth Amendment privilege with respect to any aspect of

his testimony before the grand jury (2 Tr. 13-14). The dis-

trict court then issued an order submitted by the prosecutor

granting Brown use immunity and compelling him to testify

4

(2 Tr. 14-15; 4 Tr. 171-172, 174). The court also appointed

an attorney to advise Brown as to his obligations under the

order (2 Tr. 15-18; 4 Tr. 174).

After consulting with Brown, his appointed counsel

reported to the court that Brown intended to claim amnesia

(4 Tr. 196-221). In another voir dire, Brown denied having

any memory of the crimes about which he had testified

before the grand jury and said he was currently being given

three doses of valium a day while being housed at the

Metropolitan Correctional Center (MCC) (4 Tr. 222-236).

The court conducted a final voir dire of Brown the follow-

ing day. Brown stated that he had no memory of anything

prior to March 29, 1983, when he was arrested by police

officers who pointed shotguns at his head and threatened to

shoot him (2 Tr. 41-42). When the court asked him about a

medical report indicating that on May 5, 1983, Brown had

told a doctor at the MCC about a gunshot wound he had

suffered in 1973, Brown admitted that he had told a doctor

about the gunshot wound, but he claimed he could not

remember when he had been shot. He still maintained he

could remember nothing that had occurred prior to March

29, 1983 (2 Tr. 43-44).

The district court found that Brown’s claim of amnesia

was false and that his feigned claim of memory loss was

equivalent to a denial of the truth of his prior grand jury

testimony. As the court put it, “ | equate * * * the current

‘No, I suddenly don’t remember anything’ with the incon-

sistent statement, ‘No, that didn’t happen’ when there has

been testimony previously under oath that it did” (2 Tr.

55). Accordingly, the court held that Brown’s in-court

‘The court summarized its ruling 2s follows (2 Tr. 64):

Well, let me amplify in one respect. I’m not saying that Mr.

Brown is unavailable; he’s here.

5

testimony was inconsistent with his grand jury testimony,

and that his grand jury testimony was therefore admissible

at trial as a prior inconsistent statement under Fed. R. Evid.

801(d)(1)(A). 2 Tr. 54-56.

Brown-was then called to the stand in the presence of the

jury and questioned by the government and defense coun-

se]. In response to each of the prosecutor’s questions regard-

ing his grand jury testimony itself and the underlying events

recounted therein, Brown answered that he did not

remember (2 Tr. 66-71).° Under questioning by defense

counsel, Brown described the event that led to his claimed

amnesia, and he testified about his cu-rent use of valium, his

pending state court indictment, and claimed harassment

and threats against him by federai agents (2 Tr. 74-81).

The court then read to the jury portions of Brown’s grand

jury testimony of September 12, 1979, and September 22,

1982. In this testimony, Brown had offered a description of

the Halsted Foods robbery that was quite similar to the

testimony that Willis had given at trial. Brown added some

further details, explaining that he had entered the store by

cutting a hole in the roof and then had handcuffed and

blindfolded the janitor. He said that he, petitioner, and

Gurgone had brought some acetylene torches and used

them to open the safes. While petitioner and Gurgone were

working on the safes, Willis looked after the janitor, Zito

held up a tarpaulin to hide the light from the torches, and

I am saying that it is my conclusion that his claim of memory

loss is not so, and that therefore any testimony in that regard is

inconsistent testimony, and that he is subject to cross-

examination in the sense that anybody who is telling one story,

whatever that story is, who is physically present and able to

respond can be cross-examined regarding that story.

*Brown did admit, however, that he remembered being in the Federal

Witness Protection Program, that he was married, had a child, and

supported his wife and child (2 Tr. 81, 85).

6

Brown acted as a look-out. Finally, Brown said the robbery

had lasted six or seven hours and netted the burglars about

$3,000, which they divided afterwards at Walz’s house (2 Tr.

90-101).

After Brown’s grand jury testimony had been read to the

jury, the defense was allowed to impeach Brown by reading

from his testimony in other unrelated cases in state and

federal courts. Brown admitted in this testimony to being a

lifelong burglar and acting as a government informant in

exchange for cash payments, sometimes giving false infor-

mation in order to conceal his own criminal activities. He

also described his participation in the Federal Witness Pro-

tection Program from 1979 to 1982, during which period he

received a total of $20,000 from the federal government. It

was also stipulated that Brown was not prosecuted: for a

number of crimes in exchange for his cooperation with the

state and federal government (2 Tr. 135-179, 186-229).

3. The court of appeals affirmed in part and reversed in

part (Pet. App-1a-28a). The court vacated petitioner’s con-

viction on the RICO count (id. at 8a-11a),° but upheld his

conviction on the Hobbs Act charge, finding that the

admission of Brown’s grand jury testimony violated neither

the Federal Ruies of Evidence nor the Confrontation

Clause of the Sixth Amendment (Pet. App. 1 1a-26a).

‘The court of appeals reversed petitioner’s conviction on the RICO

count because petitioner had been charged and convicted as both the

“person” who had conducted the affairs of an enterprise through a

pattern of racketeering and as the “enterprise” itself (Pet. App. 8a-I 1a).

The court relied on an earlier decision by the same court, hanued down

while this case was pending on appeai, which held that Congress did not

intend to allow the same entity to be charged as both the person and the

enterprise under 18 U.S.C. 1962(c). Haroco, Inc. v. American National

Bank & Trust Co., 747 F.2d 384 (7th Cir. 1984), aff'd on other grounds,

No. 84-822 (July 1, 1985).

7

The court uf appeals first upheld the district court’s find-

ing that Brown’s grand jury testimony was admissible under

Fed. R. Evid. 801(d)(1)(A). Relying on a long line of cases

holding that “inconsistent” statements are not limited to

statements that are diametrically opposed to a witness’s

in-court testimony, and that aclaim of memory loss at trial,

particularly in a case of a witness who is manifestly reluc-

tant to testify, can render a witness’s prior statements incon-

sistent with his trial testimony, the court of appeals held

that the district court did not abuse its discretion in finding

that Brown’s claimed amnesia was inconsistent with his

grand jury testimony (Pet. App. 12a-15a). After carefully

considering the text, history, and purposes of Rule

801(d)(1)(A), the court also found that, “under the very

unique circumstances presented by this case, [Brown] was

meaningfully subject to cross-examination under Rule

801(d)(1)(A)” despite his feigned lack of memory (Pet.

App. I6a). As the court explained, the limited cross-

examination of Brown that defense counsel was able to

perform, together with the testimony given by Brown in

other trials that the defense used to impeach him, revealed

that he had been a member of the Federal Witness Protec-

tion Program and had received substantial payments from

the government during the period in which he testified

before the grand jury. This evidence, the court held,

“enabled the defense to create a reasonable basis for the jury

to conclude that Brown’s statements in his grand jury tes-

timony were tainted by a desire to please the government”

(id. at 18a-19a). Brown’s feigned amnesia was also signifi-

cant, the court held, because “his credibility in making this

claim would doubtlessly affect the jury’s willingness to

believe his prior statements” (id. at 20a). In addition, the

defense was able to impeach Brown’s credibility through the

use of the statements that he had made at other trials. In

that testimony, Brown admitted to facts that, when consi-

dered as a whole, “hardly [present] the profile of a credible

8

witness” (ibid.). In sum, given this evidence, which provided

the defense with a reasonable basis for arguing to the jury

that Brown should be disbelieved, the court concluded that

“defense counsel in this case could hardly have hoped for a

more powerful impeachment of Brown than that which they

achieved through his testimony at trial and the introduction

of his prior statements” (id. at 21a). Accordingly, the court

found that it would be “the height of formalism” (ibid.) to

conclude that Brown was not subject to cross-examination

concerning his grand jury testimony for purposes of Rule

801(d)(1){A).

For the same reasons, the court also concluded that

Brown’s purported amnesia did not deprive defense counsel

of a meaningful opportunity to cross-examine him under

the Sixth Amendment Confrontation Clause. Pet. App.

2la-26a. In so ruling, the court relied heavily upon the

extensive questioning Brown underwent regarding his

feigned claim of amnesia, the jury’s ability to assess Brown’s

credibility based upon his responses to those questions, and

petitioner’s ability to impeach Brown with the testimony

that he had given in other trials. /d. at 25a. Given this

evidence, the court held that, in spite of Brown’s memory

lapse, “in the unique situation presented here, the jury had

ample information from which it could assess the truth of

Brown’s grand jury testimony.” /d. at 25a-26a (footnote

omitted).

ARGUMENT

|. Petitioner contends that the admission of Ronald

Brown’s grand jury testimony violated the Federal Rules of

Evidence and the Confrontation Clause of the Sixth

Amendment. After a close examination of the record in this

case and a careful analysis of petitioner’s claims, the

court of appeals correctly rejected petitioner’s contentions

in an exhaustive opinion upon which we substantially rely.

Moreover, there is no conflict among the circuits on the

9

questions presented by petitioner. Finally, the unique facts

of this case are unlikely to recur with the degree of regularity

necessary to warrant review by this Court. Accordingly,

petitioner’s claims do not call for further review.

a. Petitioner contends (Pet. 6-8) that Brown’s grand jury

testimony was inadmissible under Fed. R. Evid. 801(d)(1)(A)

as a prior inconsistent statement because he could not cross-

examine Brown concerning his grand jury testimony, given

Brown’s claim of amnesia. Petitioner claims that Brown’s

grand jury testimony was admissible, if at all, only under

Rule 804(b)(5), and he argues that Brown’s grand jury

testimony was inadmissible under this rule because it was

not trustworthy. Petitioner’s objection is not well taken.

In the first place, the court of appeals correctly held that

Brown’s grand jury testimony was admissible under Fed. R.

Evid. 801(d)(1)(A). Contrary to petitioner’s claim (Pet. 7),

the use of that rule to admit the prior sworn testimony of a

forgetful witness is not unprecedented. As the court of

appeals recognized (Pet. App. 13a), a number of other

courts of appeals have ruled that, in some cases, a witness’s

feigned partial memory loss is not materially different from

the disavowal of the truth of a prior statement, particularly

where the witness is recalcitrant or reluctant to testify. In

those situations, the witness’s prior statement falls within

the scope of Rule 801(d)(1)(A). See, e.g., United States v.

Russell, 712 F.2d 1256, 1258 (8th Cir. 1983); United States

v. Murphy, 696 F.2d 282, 284 (4th Cir. 1982), cert. denied,

461 U.S. 945 (1983); United States v. Distler, 671 F.2d 954,

958 (6th Cir.), cert. denied, 454 U.S. 827 (1981); United

States v. Marchand, 564 F.2d 983, 998-999 (2d Cir. 1977),

cert. denied, 434 U.S. 1015 (1978); United States v. Rogers,

549 F.2d 490, 495-496 (8th Cir. 1976), cert. denied, 431 U.S.

918 (1977); see also 4 D. Louisell & C. Mueller, Federal

Evidence § 419, at 175-176 (1980) (footnotes omitted) (“the

inconsistency requirement ts satisfied not only when the

10

prior statement directly contradicts the declarant’s trial

testimony, but also when declarant claims at trial a lack of

memory concerning the events related in the prior state-

ment, at least where the selectivity of the claimed memory

loss suggests that the witness is being evasive rather than

truly forgetful”). This principle stems from the general rule

that a witness’s prior statement need not directly contradict

his trial testimony to qualify for admission under Rule 801.

See United States v. Williams, 737 F.2d 594, 607-608 (7th

Cir. 1984), cert. denied, No. 84-256 (Feb. 25, 1985); United

States v. Rogers, 549 F.2d at 495-496; 4 D. Louisell & C.

Mueller, supra, $ 419, at 175-177.

This case illustrates the reasonableness of that principle.

After personally observing Brown insistently maintain that

he was suffering from total amnesia, the district court found

that his claim was a complete fabrication (pages 4-5 note 4,

supra).’ That finding is not clearly erroneous. Brown

initially invoked his self-incrimination privilege, a claim

that he would have been most unlikely to assert if he was

truly suffering from amnesia. The MCC medical report

showed that, more than a month after Brown had sup-

posedly developed amnesia, he was able to remember the

incident that supposedly triggered that condition. And

Brown’s in-court responses to questioning by the govern-

ment and defense counsel gave the district court a substan-

tial basis for finding that Brown was lying (Pet. App. 4a-Sa,

14a-15a). The court of appeals saw no reason to disturb that

finding (id. at 14a-19a & n.6), and petitioner does not

7As the district court explained (2 Tr. 122-124):

Brown was up on the stand. So the jury could judge [hlis

demeanor as to what kind or how big a liar he is, if any, that when

he says, looks you straight in the eye and says something that

everybody knows to be a fact, “I don’t remember,” it doesn’t shut

you off from cross-e «amination any differently or any more than

his looking you in the eye and saying: No, that didn’t happen.

11

challenge it in this Court. Thus, it is beyond dispute that

Brown’s claim of amnesia was a lie.

Petitioner erroneously asserts (Pet. 7) that the court of

appeals denigrated the importance of cross-examination in

ruling that Brown’s grand jury testimony was admissible

under Rule 801(d)(1)(A). On the contrary, the court of

appeals stressed the importance of this requirement in the

rule and acknowledged that a witness’s complete memory

loss will normally mean that the witness is not subject to

cross-examination concerning his prior statement (Pet.

App. 17a). Although the court found that Brown was effec-

tively subject to cross-examination concerning his testi-

mony before the grand jury, the court so ruled only after

undertaking a careful examination of the record in this case

and finding that Brown’s in-court testimony and his testi-

mony in other trials provided the defense with a substantial

basis for arguing that Brown should be disbelieved. The

court of appeals therefore did not adopt a sweeping rule

that a witness’s feigned amnesia permits the government

routinely to introduce the witness’s prior statements under

Rule 801(d)(1)(A); rather, the court simply found that, on

the peculiar facts of this case, petitioner had an adequate

opportunity to cross-examine Brown regarding his prior

statements.

b. Petitioner also claims (Pet. 4-6) that the admission of

Brown’s grand jury testimony violated his right of confron-

tation under the Sixth Amendment and that the court of

appeals’ decision conflicts with Pointer v. Texas, 380 U.S.

400 (1965), and Douglas v. Alabama, 380 U.S. 415 (1965).

This claim also lacks merit.

This Court has explained that “the mission of the Con-

frontation Clause is to advance a practical concern for the

accuracy of the truth-determining process in criminal trials

by assuring that ‘the trier of fact [has] a satisfactory basis for

12

evaluating the truth of the prior statement.’ Dutton v.

Evans, 400 U.S. 74, 89 (1970) (plurality opinion), quoting

California v. Green, 399 U.S. 149, 161 (1970). Accordingly,

the Court has held that the admission of a declarant’s prior

inconsistent statements incriminating a defendant does not

violate the Sixth Amendment so long as the accused has the

opportunity for a “full and effective cross-examination” of

the declarant at trial. California v. Green, 399 U.S. at 158.

Although Green did not decide whether a witness’s memory

loss can so hamper cross-examination as to render the

admission of the witness’s out-of-court statements a viola-

tion of the Confrontation Clause (399 U.S. at 168-169), the

courts of appeals that have considered this question have

found, in varying factual circumstances, that a declarant’s

memory loss did not violate the defendant’s confrontation

right. See United States v. Rogers, 549 F.2d at 498-502;

United States ex rel. Thomas v. Cuyler, 548 F.2d 460 (3d

Cir. 1977); United States v. Payne, 492 F.2d 449 (4th Cir.),

cert. denied, 419 U.S. 876 (1974); United States v. Insana,

423 F.2d 1165 (2d Cir.), cert. denied, 400 U.S. 841 (1970);

see also United States v. Baker, 722 F.2d 343, 347-349 (7th

Cir. 1983), cert. denied, 465 U.S. 1037 (1984); Vogel v.

Percy, 691 F.2d 843 (7th Cir. 1982); cf. Delaware v. Fens-

terer, No. 85-214 (Nov. 4, 1985), slip op. 4 (“it does not

follow that the right to cross-examine is denied * * * when-

ever the witness’s lapse of memory impedes one method of

discrediting him”).® The ruling of the court of appeals in this

case is fully consistent with these other decisions.

®The decision most closely resembling this one is United States v.

Payne, supra. There, the court of appeals upheld, over a Confrontation

Clause challenge, the admission of a witness’s prior written statement to

a federal agent after the witness claimed at trial to have no memory of

the facts underlying his statement or that he made it. The court

explained that the witness was available for cross-examination concern-

ing other contemporaneous events, about any possible bias or preju-

dice, and as to why he failed to recall both the substance of his statement

13

The court of appeals found that Brown’s feigned amnesia

did not completely disable petitioner from attempting to

impeach Brown. The defense was able to reveal that Brown

was a member of the Federal Witness Protection Program

and had received substantial payments from the govern-

ment at the time that he testified before the grand jury. This

allowed the defense to argue that Brown may have been

motivated by a desire to please the government. Pet. App.

18a-19a. Moreover, the government’s proof at trial showed

that petitioner had ordered Brown to be killed and that two

other associates of petitioner had attempted to carry out

petitioner’s order. See Gov't C.A. Br. 6-7.9 This proof

allowed the defense to argue that Brown was also motivated

by vengeance at the time that he testified before the grand

jury. Beyond that, Brown admitted at several other trials

that he was not only acareer criminal but also an inveterate

liar, who would lie when necessary to help himself. Pet.

App. 20a. Finally, the transcript of the grand jury proceed-

ings provided a verbatim record of Brown’s testimony,

which eliminated any realistic possibility that his statements

were not accurately preserved. Pet. App. 18a n.5. In these

circumstances, the court of appeals correctly found that this

case was not materially different from the other court of

appeals decisions upholding the admission of a witness’s

as well as making it. The court of appeals found that, in that circum-

stance, the jury had an adequate basis for determining the veracity of

the out-of-court statement and that the declarant’s memory lapse did

not preclude the admission of his out-of-court statement under the

Confrontation Clause. 492 F.2d at 452-454. The court of appeals here

followed the same approach, finding that the extensive questioning

regarding Brown’s amnesia that did take place here amounted to a full

and effective cross-examination that allowed the jury to assess the truth

of Brown’s previous statements.

*This evidence formed the basis for one of the predicate acts in the

RICO count against petitioner that was reversed on other grounds by

the court of appeals. See page 6 note 6, supra.

14

prior inconsistent statements where the witness feigns

amnesia at trial.!°

Petitioner erroneously asserts that the court of appeals’

decision conflicts with Pointer v. Texas, supra, and Dou-

glas v. Alabama, supra. As the court of appeals noted (Pet.

App. 26a n.7), Pointer is readily distinguishable from this

case. There, the state introduced the prior testimony given

at a preliminary hearing at which the defendant had been

unrepresented by counsel and at which he did not cross-

examine the witness. This Court found a violation of the

10The Court’s decision in Dutton v. Evans, supra, is also pertinent

here. There, the Court found no Confrontation Clause objection to the

admission of a declarant’s out-of-court statements that did not fit

within a well-established hearsay exception because it found that there

were sufficient “indicia of reliability which have been widely viewed as

determinative of whether a statement may be placed before the jury

though there is no confrontation of the declarant.” 400 U.S. at 89

(plurality opinion); see id. at 88-89 (discussing indicia of reliability).

Those factors have parallels in this case.

First, although Brown’s grand jury testimony contained assertions of

fact rather than opinions, his responses to questions at trial clearly gave

the jury fair warning that his grand jury testimony should be received

with care. Second, Brown had first-hand knowledge whether petitioner

was involved in the Halsted Foods robbery, since Brown was himself a

participant in that crime. In fact, the district court permitted the

government to introduce only those portions of his grand jury testi-

mony in which he related his personal knowledge of the events (2 Tr.

56). Brown’s grand jury testimony was also corroborated in part by the

trial testimony of one of petitioner's other associates (Willis testified

that he saw petitioner in the Halsted Foods store on the night of the

robbery, see Pet. App. 26a-27a & n.8). Third, there was no reason to

suspect the accuracy of Brown’s recollection of the events before the

grand jury, particularly given the corroboration provided by Willis.

Fourth, petitioner had an opportunity to impeach Brown at trial, as

discussed in the text. In addition, Brown testified before the grand jury

under oath and thereby exposed himself to a prosecution for perjury if

he chose to lie. Accordingly, the district court’s decision to admit

Brown's grand jury testimony was consistent with Dutton.

15

Sixth Amendment because the defendant had no opportun-

ity whatever to confront the witness at trial. Here, by con-

trast, Brown did appear at trial and was subject to question-

ing regarding his claim of amnesia. Similarly, in Douglas v.

Alabama, supra, an alleged accomplice of the defendant’s

refused to testify at trial against the accused, and the pro-

secutor read to the jury the accomplice’s confession, which

incriminated the defendant. In that case, too, the accused

had no opportunity to confront the witness at trial. In this

case, by contrast, Brown was available for some question-

ing at trial, and the court of appeals found that the combi-

nation of Brown’s responses to those questions and the

introduction by petitioner of Brown’s statements at other,

prior trials and hearings resulted in an effective cross-

examination (Pet. App. 20a-21a).!!

2. Petitioner also claims (Pet. 8-9) that his Hobbs Act

conviction should be reversed on the ground that the admis-

sion against him of evidence relevant to the reversed RICO

count had a prejudicial spillover effect in connection with

the Hobbs Act count. He argues that the court of appeals

failed adequately to consider this spillover effect because it

failed to take into account the invalidity of the racketeering

count. However, the court of appeals correctly applied the

'!There is also no need to hold this case pending the Court’s decision

in New Mexico v. Earnest, cert. granted, No. 85-162 (Oct. 21, 1985),

which is factually similar to Douglas. There, a co-defendant refused to

testify at trial after being granted use immunity and being held in

contempt, and his taped confession to the police was admitted against

the respondent. The question in Earnest is whether a co-defendant’s

confession that incriminates the accused may be admitted at trial,

consistently with the Confrontation Clause, under an exception to the

hearsay rule for statements against the declarant’s penal interest, where

the co-defendant/declarant is unavailable at trial, an issue that the

Court reserved in Bruton v. United States, 391 U.S. 123, 128 n.3 (1968).

Here, by contrast, petitioner was not wholly deprived of any opportun-

ity to confront Brown at trial, nor was the prior statement an unsworn

confession obtained during police interrogation.

16

well-settled rule that the reversal of one count of a defend-

ant’s conviction does not automatically require that other

counts independently supported by sufficient evidence also

be set aside (Pet. App. | la-12an.4). See, e.g., United States

v. Shue, 766 F.2d 1122, 1133-1134 (7th Cir. 1985); United

States v. Valenzuela, 596 F.2d 824, 829 (9th Cir.), cert.

denied, 441 U.S. 965 (1979). Instead, the proper inquiry is

whether the different counts should bave been severed

because of their potential prejudicial effect. See Schaffer v.

United States, 362 U.S. 511 (1960). The court of appeals

held that the initial joinder was proper and that the district

court did not abuse its discretion in finding that a severance

was not required (Pet. App. Ila-12a n.4). Under those

circumstances, reversal of one of the counts on appeal does

not impair the integrity of the conviction on the other

count.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

FEBRUARY 1986

DOJ-1986-02