WINFRED W. PAYNE, PETITIONER V. UNITED STATES OF AMERICA No. 90-7218 In The Supreme Court Of The United States October Term, 1990 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. 2a-7a) is reported at 923 F.2d 595. JURISDICTION The judgment of the court of appeals was entered on January 14, 1991. The petition for a writ of certiorari was filed on February 25, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals properly concluded that the admission of a non-testifying co-defendant's confession, in violation of Bruton v. United States, 391 U.S. 123 (1968), was harmless error. STATEMENT Following a jury trial in the United States District Court for the District of Minnesota, petitioner and a co-defendant were convicted on one count of conspiracy to assist the escape of a federal prisoner (18 U.S.C. 852(a)), in violation of 18 U.S.C. 371. Petitioner was sentenced to 51 months' imprisonment, to be served consecutively to the sentence he was already serving. /1/ The court of appeals affirmed (Pet. App. 2a-7a). 1. The evidence at trial established that on October 17, 1989, an FBI informant told FBI Agent Andy Skroch of a plan to assist the escape of petitioner, a federal prisoner, from the Stutsman County Jail in Jamestown, North Dakota. Pet. App. 2a; Gov't C.A. Br. 1. Pursuant to Skroch's instructions, the informant met with petitioner's wife and the other conspirators to plan the escape. At the meeting, co-conspirator Robert McCormick told the others that they would need money and weapons, as well as a white person to drive the getaway car so that the all-black group would be less conspicuous in virtually all-white Jamestown. Pet. App. 2a; Gov't C.A. Br. 1-2. The informant arranged a meeting between McCormick and undercover FBI Agent George Hafner, who claimed to be willing to drive the escape car. In several conversations recorded by Hafner, McCormick revealed the details of the escape plan: petitioner would wait on the roof of the jailhouse between 9 p.m. and 11 p.m. on the designated day, and would escape by getting to the roof of the courthouse next door with the others' help. Hafner would wait nearby in the getaway car, whose license plates would be changed from Nebraska to Minnesota plates. Pet. App. 2a-3a; Gov't C.A. Br. 2-3; C.A. App. 1-13, 14-19, 20, 21-23. While these plans were being formulated, petitioner was in frequent telephone contact with the informant; telephone records admitted in evidence reflected calls dialed from jail by petitioner to the informant at the time the escape plans were being made. Petitioner made other calls to his wife, who then connected the informant through a conference call. Gov't C.A. Br. 1-2. In accordance with the plan, at about 7:30 p.m. on the day set for the escape, petitioner requested permission to play basketball on the roof of the jail, even though it was dark and cold outside. From that time until about 10:30 p.m. petitioner played basketball -- wearing dress shoes and warm clothing -- with two other inmates. Guards heard all three players repeatedly yelling petitioner's nickname, "Brownskins." At about 9:45 p.m., petitioner returned to his cell block and used the telephone; he then returned to the roof and continued to play basketball. When the conspirators failed to arrive at the jail, petitioner made additional telephone calls to the informant. Pet. App. 3a; Gov't C.A. Br. 4. Earlier that day, Hafner, McCormick, and Tycer Robinson had set out for Jamestown, stopping along the way in Rogers, Minnesota, to purchase firearms. Agent Skroch posed as a weapons dealer. McCormick told Skroch that he wanted to buy a 9mm handgun, a .45 caliber revolver, and a sawed-off shotgun, /2/ and McCormick and Robinson were arrested when they went to Skroch's car to get the guns. In a subsequent consent search of McCormick's car, the FBI agents found tools for the escape, the car's registered Nebraska license plates (Minnesota plates were on the car), a sketch of the Stutsman County Jail, and a list of countries with which the United States has not signed an extradition treaty. Pet. App. 3a; Gov't C.A. Br. 3-4. After his arrest, McCormick confessed to his involvement in the escape plan. McCormick did not testify at trial, but his confession was introduced, over petitioner's objection, in redacted form. The jury heard that McCormick told the FBI that he was planning to help "someone" escape from federal custody. Pet. App. 3a, 4a; Gov't C.A. Br. 3-4. 2. The court of appeals found that the admission of McCormick's confession violated the rule announced in Bruton v. United States, 391 U.S. 123 (1968). That case held that when co-defendants are tried jointly, the Sixth Amendment right of confrontation prohibits the admission of the confession of a non-testifying co-defendant that inculpates the other co-defendant. In this case, the court of appeals determined that although McCormick's statement had been redacted to refer only to "someone," whom he was trying to help escape, there was no doubt at trial who that "someone" was. Pet. App. 4a-5a. The court therefore followed its holding in United States v. Long, 900 F.2d 1270, 1279-1280 (8th Cir. 1990), that the admission of a redacted confession that contains a neutral pronoun for the defendant's name but invites speculation as to the identity of the unnamed person violates the Bruton rule. Pet. App. 4a-5a. /3/ Nevertheless, the court found the error to be harmless because of the other overwhelming evidence of petitioner's guilt. The court noted that petitioner had been in telephone contact with the informant about 20 times before the planned escape, and it recognized the unusual circumstances of petitioner's basketball game on the roof of the jail on a cold October night. Petitioner had never before asked to play basketball at the jail, wore clothing inappropriate for basketball, and repeatedly yelled his own nickname during a game with only two other people. The court concluded that it "was clear that Payne conspired to plan his own escape, and was waiting on the roof for that purpose." Pet. App. 5a. ARGUMENT Petitioner contends (Pet. 4-6) that the court of appeals should not have applied harmless error analysis to the Bruton error at issue here. He also claims that there is a conflict between the decision in this case and that of the Sixth Circuit in United States v. Pickett, 746 F.2d 1129 (1984), where the court found a violation of the Bruton rule not to be harmless error. Those arguments are incorrect. It is well-settled that a Bruton violation does not automatically require reversal of the conviction. See Harrington v. California, 395 U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972). Instead, "(i)n some cases, the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error." Id. at 430. See also Cruz v. New York, 481 U.S. 186, 193-194 (1987) (defendant's own confession admitted in violation of Bruton "may be considered on appeal in assessing whether any Confrontation Clause violation was harmless"). There is no question that harmless error analysis is appropriately applied in cases where a court has found a Bruton violation. The courts of appeals have consistently and correctly followed this Court's guidance on the issue of whether a Bruton violation may be harmless error. See, e.g., United States v. DiCarlantonio, 870 F.2d 1058, 1062 (6th Cir.), cert. denied, 110 S. Ct. 323 (1989); United States v. Petiti, 841 F.2d 1546, 1556 (11th Cir.), cert. denied, 487 U.S. 1237 (1988); United States v. Basey, 816 F.2d 980, 1004-1005 (5th Cir. 1987); United States v. Guerrero, 756 F.2d 1342, 1348 (9th Cir.), cert. denied, 469 U.S. 934 (1984); United States v. Coachman, 727 F.2d 1293, 1297-1298 (D.C. Cir. 1984); United States v. Ruff, 717 F.2d 855, 858 (3d Cir. 1983), cert. denied, 464 U.S. 1051 (1984). The Sixth Circuit's decision in United States v. Pickett, supra, in no way conflicts with those cases or with the court of appeals' decision in this case. Pickett simply represents a factual situation where the court did not find the other evidence against the defendant to be so overwhelming as to render the Bruton violation harmless. 746 F.2d at 1133. /4/ Unlike Pickett, the conviction in this case rested on far more than the testimony of one witness whose veracity was open to question. The court of appeals correctly concluded that the Bruton error in this case was harmless beyond a reasonable doubt. In addition to the evidence of petitioner's activities on the night of the planned escape -- the basketball game on the roof, the timing of that game, the calling of petitioner's nickname, and his telephone calls -- all of which mesh precisely with the stated plans of his co-conspirators, the jury had before it evidence of petitioner's numerous telephone calls to the FBI informant and that informant's testimony. The evidence also included recorded conversations between Agent Hafner and McCormick, in which petitioner was named as the person whose escape they were planning and whose participation in the planning was discussed. The court correctly concluded that the evidence of petitioner's guilt, even without McCormick's confession, was overwhelming, and that the effect of the inadmissible confession was insignificant by comparison. In any event, that conclusion was a factual assessment of the entire record that does not merit this Court's review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KATHLEEN A. FELTON Attorney MAY 1991 /1/ One of petitioner's co-defendants, Robert McCormick, was sentenced to 30 months' imprisonment. He does not join in this petition. Another co-defendant, Tycer Robinson, was acquitted. /2/ The conversation about the purchase of the guns was also recorded (C.A. App. 24-27). /3/ As the Eighth Circuit noted in Long, 900 F.2d at 1279, in Richardson v. Marsh, 481 U.S. 200 (1987), this Court held that the Bruton rule is not violated when the confession of a non-testifying co-defendant is redacted to eliminate all reference to the involvement of any other person, and the jury is instructed not to consider the confession against the other defendant, even though other evidence might allow the jury to infer a link between the co-defendant's confession and the other defendant. Richardson, however, expressed no opinion on whether a redacted confession would violate the Sixth Amendment if, instead of containing no reference to another person, it referred to a symbol or neutral pronoun for the other defendant's name. Id. at 211 n.5. /4/ For the same reason, petitioner's reliance (Pet. 4) on United States v. Hill, 901 F.2d 880, 884-885 (10th Cir. 1990), and United States v. Danzey, 594 F.2d 905, 917-919 (2d Cir.), cert. denied, 441 U.S. 951 (1979), is also misplaced.