EDMOND GIFFORD, PETITIONER V. UNITED STATES OF AMERICA JOSEPH KELLY, PETITIONER V. UNITED STATES OF AMERICA No. 89-7100, 89-7294 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals in No. 89-7100 (Pet. App. A1-A6) is reported at 892 F.2d 263. The opinion of the court of appeals in No. 89-7294 (Pet. App. A1A-A16) is reported at 892 F.2d 255. The opinion of the district court (89-7100 Pet. App. C1-C7) is reported at 684 F. Supp. 125. JURISDICTION The judgments of the court of appeals were entered on December 19, 1989. Petitions for rehearing were denied on January 17, 1990 (89-7100 Pet. App. D; 89-7294 Pet. App. D). The petition for a writ of certiorari in No. 89-7100 was filed on April 2, 1990. The petition for a writ of certiorari in No. 89-7294 was filed on April 17, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioners' rights under the Confrontation Clause were violated by the admission at trial, pursuant to Fed. R. Evid. 804(B)(1) and Fed. R. Crim. P. 15, of depositions videotaped in Belgium, when petitioners were represented by counsel at the depositions, the deposition proceedings were transmitted to petitioners via telephone, but petitioners were unable personally to attend the depositions. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, petitioners were convicted of conspiring to possess and manufacture methamphetamine, in violation of 21 U.S.C. 846 (Count 1) and attempting to import P2P, in violation of 21 U.S.C. 963 (Count 26). /1/ C.A. App. A149, A2930. Additionally, petitioner Kelly was convicted of four counts of importing P2P, in violation of 21 U.S.C. 952. Petitioner Gifford was sentenced to three years' imprisonment, to be followed by a three-year special parole term, on the attempted importation count. With respect to the conspiracy count, execution of sentence was suspended and Gifford was placed on probation for five years following his release from prison. C.A. App. A149. Petitioner Kelly was sentenced to five years' imprisonment on the conspiracy count, and to concurrent five-year terms of imprisonment on each of the four importation counts, to be followed by a five-year term of special parole. With respect to the attempted importation count, execution of sentence was suspended and Kelly was placed on probation for five years following his release from prison. C.A. App. 2930. 1. Petitioners were two of 28 individuals involved in a wide-ranging conspiracy to import and distribute P2P and to manufacture and distribute methamphetamine between July 1983 and June 1987. Petitioners were among those responsible for procuring the P2P in Europe and shipping it to the United States. Petitioners' group then sold the P2P to a group of co-conspirators that was responsible for manufacturing and distributing methamphetamine. Most of the evidence concerning Gifford's activities in Europe and the later phases of Kelly's activities came through the deposition testimony of ten foreign witnesses, who related how petitioners traveled through Europe in the fall of 1986 purchasing P2P for shipment to Philadelphia. Pet. App. A3, B5. /2/ 2. Prior to trial, the government filed a motion, pursuant to Fed. R. Crim. P. 15, to take depositions from witnesses at the United States Embassy in Belgium. The district court granted the motion, and later permitted the videotaped depositions to be introduced in evidence at petitioners' trial. Pet. App. C1. The court found that the witnesses were unavailable to appear at trial, despite the government's "diligent, genuine and bona fide effort" to secure their appearance. Pet. App. C7. Although subpoenas could not be enforced against the foreign witnesses (Pet. App. C5), the government made clear that it would pay expenses plus a witness fee if they would appear, and that information was officially communicated to them by Belgian authorities. Pet. App. C6. The depositions were taken in November 1987. Pet. App. B11. Because petitioners were pretrial detainees, they were unable personally to attend the depositions. The Belgian government refused to take custody of petitioners and also refused to agree to any of the alternative arrangements proposed by the U.S. government that would allow petitioners to attend the depositions while in U.S. custody. Pet. App. C4 & n.2. The witnesses at the depositions were sworn in by Senior District Court Judge Edmund Palmieri, the special master appointed by the court to oversee the depositions. Pet. App. C2. Petitioners' counsel, who were present at the depositions, "were given an adequate opportunity to cross-examine" the deponents; "(n)o limits to the scope or nature of cross-examination by counsel were imposed." Pet. App. C3. An open telephone line was provided to enable petitioners to listen to each deposition contemporaneously. Pet. App. B11. Telephones outside the hearing room were available for petitioners to confer privately with their attorneys, and the depositions were interrupted a number of times when counsel left the hearing room to speak via telephone with their clients. Pet. App. C3. 3. The court of appeals affirmed the district court's admission of the videotaped depositions. Pet. App. A4-A5, B12-B16. The court observed that Coy v. Iowa, 108 S. Ct. 1798 (1988), did not overrule precedents from this Court holding that the introduction of hearsay evidence does not invariably violate the Confrontation Clause. The court noted that, when a witness is unavailable to testify at trial, hearsay statements may be admitted if the hearsay falls within an established exception to the hearsay rule that is "firmly rooted in our jurisprudence." Pet. App. B13. The court found that the deposition testimony in this case fell within the "firmly rooted" hearsay exception for prior testimony, which is codified in Fed. R. Evid. 804(b)(1). Pet. App. B14. That Rule provides that former testimony is admissible if (1) the declarant is unavailable, (2) the testimony was given "in a deposition taken in compliance with law in the course of the same or another proceeding," and (3) "the party against whom the testimony is now offered * * * had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." The court of appeals found all three requirements of Fed. R. Evid. 804(b)(1) satisfied in this case. /3/ First, the court of appeals agreed with the district court that the deponents were unavailable for trial. Pet. App. B14-B15. Second, the court held that the testimony was given "in compliance with law," which in this case referred to Fed. R. Crim. P. 15. Pet. App. B15; Pet. App. A4. The witnesses were under oath, counsel for both petitioners were present, and the proceedings were "supervised by an American judge applying American evidentiary rules." Pet. App. B15. Relying on United States v. Salim, 855 F.2d 944, 949 (2d Cir. 1988), the court held that, although Rule 15(b) makes provision for the attendance of the defendant at a deposition, that Rule "was not intended to be an obstacle to prevent the deposition from being taken at all." Pet. App. A4. This was particularly true, the court held, in light of the "great pains * * * taken to insure that the incarcerated defendants were able to take as active a role in the proceedings as the circumstances would permit." Pet. App. A5. Finally, the court found that petitioners' counsel were given broad latitude in cross-examining the deposition witnesses, and that petitioners had "a reasonable opportunity to take part in th(e) cross-examination" via the private telephone line. Pet. App. B16. ARGUMENT 1. Petitioners argue (89-7100 Pet. 11-15; 89-7294 Pet. 7-9) that the decision by the court of appeals conflicts with this Court's decision in Coy v. Iowa, 108 S. Ct. 2798 (1988). In Coy, the defendant was convicted of sexually assaulting two 13-year-old girls. At trial, the court permitted a large screen to be placed between the defendant and the witness stand during the girls' testimony, with the result that the defendant could "dimly * * * perceive" the witnesses, but the witnesses could not see the defendant at all. Id. at 2799. The Court reversed the conviction, holding that the use of the screen violated the defendant's right to confront his accusers at trial "face-to-face." The Court emphasized in Coy that the right to face-to-face confrontation applied to trial witnesses. See 108 S. Ct. at 2800, 2803. The Court carefully distinguished cases involving the right to face-to-face confrontation of trial witnesses from cases involving rights "that are, or were asserted to be, reasonably implicit" in the Clause. 108 S. Ct. at 2802. The latter cases involve "the right to exclude out-of-court statements" and the "asserted right to face-to-face confrontation at some point in the proceedings other than trial." Id. at 2802-2803. The Court noted that "there is at least some room for doubt * * * as to the extent to which the Clause includes those elements," id. at 2800, and that, with respect to questions such as the admissibility of hearsay statements, the Confrontation Clause analysis is more flexible. Thus, contrary to petitioners' contention, the right recognized in Coy to confront trial witnesses does not govern the admissibility of out-of-court statements. See Bourjaily v. United States, 483 U.S. 171, 183 (1987) (co-conspirator declarations); Ohio v. Roberts, 448 U.S. 56 (1980) (prior testimony); Dutton v. Evans, 400 U.S. 74 (1970) (co-conspirator declarations); Salinger v. United States, 272 U.S. 542, 547-548 (1926) (res gestae documentary evidence). See also Pointer v. Texas, 380 U.S. 400, 407 (1965) (dying declarations); Kirby v. United States, 174 U.S. 47, 61 (1899) (same). /4/ As the Court noted in Ohio v. Roberts, 448 U.S. at 88, "certain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the substance of the constitutional protection." In a case where the evidence falls within such a "firmly rooted hearsay exception," "(r)eliability can be inferred without more." Id. at 66. Even if no such exception applies, reliability can be established if the statement is shown to have "particularized guarantees of trustworthiness." Ibid. See also Dutton v. Evans, 400 U.S. at 89 (plurality opinion); Lee v. Illinois, 476 U.S. at 543. 2. Here, as the court of appeals correctly concluded, the deposition testimony fell within a firmly rooted exception to the hearsay rule -- the exception for former testimony. Rule 804(b)(1), Fed. R. Evid., authorizes the admission of an unavailable witness's hearsay statement "given * * * in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered * * * had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." As the court of appeals held, all the requirements of Rule 804(b)(1) were satisfied in this case. Petitioners do not seriously contest the conclusion reached by both courts below that the foreign deponents were unavailable for trial. A witness is "unavailable" for purposes of the former testimony hearsay exception if the prosecutorial authorities have been unable to procure his presence at trial despite good-faith efforts to do so. /5/ Barber v. Page, 390 U.S. 719, 724-725 (1968). Accord Ohio v. Roberts, 448 U.S. at 74; California v. Green, 399 U.S. 149, 161-162, 165, 167 n.16 (1970). That standard was undoubtedly satisfied in this case. Nor do petitioners charge that the deponents were not subject to less than full cross-examination. As both courts below noted, petitioners' counsel were present at the depositions, a federal judge presided, and no limits were placed on the cross-examination. Petitioners were even able to -- and did -- participate in the proceeding through the private telephone link-up with their counsel. Petitioners contend that their absence from the depositions, despite the government's best efforts to obtain their presence and the careful mechanism developed to permit them maximum possible participation in the proceedings, necessarily rendered the depositions not "in compliance with law." /6/ In particular, petitioners contend that their absence from the depositions contravened the requirements of Rule 15(b). /7/ That contention is mistaken. /8/ Rule 15(b) provides in pertinent part that "(t)he officer having custody of a defendant * * * shall, unless the defendant waives in writing the right to be present, produce the defendant at the examination and keep the defendant in the presence of the witness during the examination." In United States v. Salim, 855 F.2d 944, 949 (2d Cir. 1988), the court stated that "a strict application of Rule 15(b) may be required" in cases involving depositions within the United States, where the defendant's presence can be procured. The court noted, however, that the Rule does not address cases in which a foreign nation does not permit the defendant to be present. Ibid. In such cases, "the purpose of (Rule 15) should not be subverted by allowing the presence requirement of Rule 15(b) to become an obstacle that prevents the deposition from being taken at all"; the refusal of the foreign government to accommodate itself to the requirements of Rule 15(b) "should not automatically and invariably cause the prosecution to abandon its efforts to obtain evidence abroad." 855 F.2d at 950. Rather, "so long as the prosecution makes diligent efforts * * * to attempt to secure the defendant's presence," the district court may order the deposition to be taken. Ibid. See Pet. App. A4-A5, B15 n.5. In Salim, the defendant was being detained and was not permitted to attend a deposition of an important, but unavailable, witness because United States officials had no authority to keep him in custody in France. 855 F.2d at 947. The court found that, because the government had "made reasonable efforts to produce (the defendant) at the taking of the deposition" and a "lengthy cross-examination of the witness" was conducted, the deposition comported with the requirements of Rule 15(b). Id. at 950. As both courts below recognized, the argument for permitting the deposition in this case is even more compelling than in Salim, given the "great pains" that were taken "to insure that the incarcerated defendants were able to take as active a role in the proceedings as the circumstances would permit." Pet. App. A5, C3. /9/ Particularly in light of the fact that full cross-examination of the deponents was permitted and petitioners had "a reasonable opportunity to take part in this cross-examination" via telephone (Pet. App. B16), the requirements of Rule 15 were correctly held to have been met in the "exceptional circumstances" of this case. /10/ Petitioner Kelly contends (89-7294 Pet. 11-12) that the decision of the court of appeals conflicts with United States v. Benfield, 593 F.2d 815 (8th Cir. 1979). In Benfield, the defendant was charged with being an accessory after the fact to a kidnapping. The trial court granted the government's request for a deposition of the kidnap victim, on the ground that the victim's psychiatrist had advised that the victim ought not be required to endure a trial situation or face the defendant. Id. at 817. The court ordered that the defendant could not be present within the vision of the deponent and established a procedure by which the defendant could observe the proceedings on a monitor and signal his counsel that he wanted to confer by sounding a buzzer. Ibid. The videotaped deposition was admitted in evidence at trial and the defendant was convicted. Ibid. The Eighth Circuit reversed the conviction, finding that the deposition violated the defendant's Sixth Amendment right to confront his accuser face-to-face. Benfield does not conflict with Salim or the present case. Unlike this case, Benfield involved a domestic deposition, and it presented no great practical difficulties for the government to bring the defendant face-to-face with the witness. It was the government's deliberate effort, as in Coy, to prevent a face-to-face confrontation from occurring that violated the Confrontation Clause. In this case and Salim, in contrast, the government did not deliberately act to prevent a face-to-face confrontation, but did all that it could, consistent with the pretrial detention orders, to enable petitioners and their counsel to participate in the deposition. /11/ 3. Even if the deposition testimony in this case were found not to satisfy the requirements of Rule 804(b)(1) and thus not to fall within a "firmly rooted" hearsay exception, the circumstances surrounding the depositions supplied more than sufficient "indicia of reliability" to allay any Confrontation Clause concerns. Unlike most hearsay situations, in which the declarant was never subject to cross-examination in any form and the jury had no opportunity to hear the statement as originally given and observe the demeanor of the declarant, the deponents in this case had to withstand full cross-examination by petitioners' own counsel and the videotape enabled the jury both to hear the deponents and examine their demeanor to "evaluat(e) the truth of the (hearsay) statement." Dutton v. Evans, 400 U.S. at 89 (quoting California v. Green, 399 U.S. 149, 161 (1970)). In fact, petitioners do not challenge the effectiveness of the cross-examination, and their only complaint -- that they could not see the deponents and the deponents could not see them -- is one that the deposition testimony in this case shares with most statements admitted under the recognized hearsay exceptions. Therefore, in light of the unavailability of the declarants and the extensive guarantees of trustworthiness that accompanied the statements, the admission of the depositions did not violate the Confrontation Clause. CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General DEBORAH WATSON Attorney JUNE 1990 /1/ Petitioners were among 28 defendants charged in a 56-count indictment alleging a scheme to import phenyl-2-propanone (P2P), a chemical used to manufacture methamphetamine, into the United States. The district court severed the case into three separate trials. Petitioners proceeded to trial in April 1988 with four other defendants, two of whom pleaded guilty during the trial. 89-7294 Pet. App. A2 & n.1. /2/ "Pet. App." refer to the appendix to the petition in No. 89-7100. /3/ For essentially the same reason, the court of appeals rejected petitioner Gifford's contention that the deposition violated his due process rights. Pet. App. A5. /4/ Indeed, as Justice O'Connor explained in her concurring opinion in Coy (108 S. Ct. at 2804-2805) (citations omitted): (V)irtually all of our cases approving the use of hearsay evidence have implicated the literal right to "confront" that has always been recognized as forming "the core of the values furthered by the Confrontation Clause," and yet have fallen within an exception to the general requirement of face-to-face confrontation. Indeed, we expressly recognized in Bourjaily v. United States, (483 U.S. at 182), that "a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable," but we also acknowledged that "this Court has rejected that view as 'unintended and too extreme.'" /5/ Fed. R. Crim. P. 15(e) permits the use of a deposition at trial "so far as otherwise admissible under the rules of evidence * * * if the witness is unavailable, as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence." Rule 804(a)(5) provides in turn that a declarant is unavailable if he "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance * * * by process or other reasonable means." /6/ Petitioner Gifford complains (89-7100 Pet. 21-22) that the government, having requested his pretrial detention, was responsible for his unavailability at the depositions. He suggests that the government could have moved for an amendment of his pretrial detention order to permit him bail for purposes of attending the deposition. Gifford, however, was detained on grounds of risk of flight and danger to the community. His release on modified bond conditions and his unsupervised travel to a foreign country would have been inconsistent with the findings of the court that entered the detention order in this case. The government was not required to expose the public and the court system to what the district court had found to be unacceptable risks as a condition of obtaining overseas evidence. /7/ Fed. R. Crim. P. 15 provides in pertinent part: (a) When Taken. Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition * * *. (b) Notice of Taking. The party at whose instance a deposition is to be taken shall give to every party reasonable written notice of the time and place for taking the deposition. * * * The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce the defendant at the examination and keep the defendant in the presence of the witness during the examination * * *. * * * (d) How Taken. Subject to such additional conditions as the court shall provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in these rules, provided that * * * (2) the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. (e) Use. At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence * * *. /8/ Petitioner Gifford also argues (89-7100 Pet. 20-23) that the admission of deposition testimony taken in his absence violated his due process right to be present at all critical stages of the prosecution. He cites no authority, however, for the proposition that the defendant has a due process right to be present at the specific proceeding at issue in this case -- a pretrial deposition of foreign witnesses. Cf. Fed. R. Crim. P. 43(a) (providing that "(t)he defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule"). Because petitioner's due process right to a trial that comports with standards of fundamental fairness is, in this context, equivalent to his right to confront his accusers, the Confrontation Clause analysis disposes of his due process claim as well. /9/ The procedure used in Salim was far less favorable to the defendant than the procedure used in this case. In Salim, the deponent was questioned by a French magistrate on written questions from the prosecutor and defense counsel. 855 F.2d at 947. Neither defense counsel nor the prosecutor attended the deposition itself. Ibid. Nor was any audio or video recording of the deposition permitted. Ibid. Although the defendant was accessible by telephone in the United States during the deposition, the live proceedings were not transmitted to him, and his counsel made no effort to contact him. Id. at 948. /10/ Because Rule 15(d) establishes that foreign depositions may be taken and used even if the manner in which they are taken does not comport precisely with domestic practice, it supports the conclusion reached by the court of appeals. Rule 15(d) instructs that "a deposition shall be taken * * * in the manner provided in civil actions * * * provided that * * * the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself." Thus, the rule incorporates the manner of taking a deposition in a civil case. Fed. R. Civ. P. 28(b), which governs the taking of depositions in foreign countries, provides that "(e)vidence obtained in response to a letter rogatory need not be excluded merely for the reason that * * * the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules." The advisory committee note to Rule 28 explains that: courts of other countries may be expected to follow their customary procedure for taking (deposition) testimony. * * * The (rule) provides, contrary to the implications of some authority, that evidence recorded in such a fashion need not be excluded on that account. As was held in Salim, Rule 28(b) "already reflect(s) the propriety of conducting a deposition under the law of a foreign nation." 855 F.2d at 951. In incorporating Fed. R. Civ. P. Rule 28(b), Rule 15(d) thus authorizes depositions taken under circumstances like those present in this case -- circumstances that comport with fundamental principles of fairness, but are not conducted in precisely the same manner as in domestic cases. /11/ In addition, it should be noted that in Benfield the deponent was not informed that the defendant was monitoring the proceedings, 593 F.2d at 817, while here the witnesses being deposed were aware that petitioners were monitoring their testimony. See 89-7100 Pet. 8.