GARY KEITH VERNOR, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-5270

   In The Supreme Court Of The United States

   October Term, 1990

   On Petitioner For A Writ Of Certiorari To The United States Court
Of Appeals For The Fifth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A1-A15) is reported
at 902 F.2d 1182.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 29, 1990.
The petition for a writ of certiorari was filed on July 13, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the admission of a codefendant's statements at petitioner's
separate trial violated petitioner's rights under the Confrontation
Clause.

                               STATEMENT

   After a jury trial in the United States District Court for the
Northern District of Mississippi, petitioner was convicted of
conspiracy to commit armed robbery of a federally insured bank, in
violation of 18 U.S.C. 371, and of armed robbery of a federally
insured bank, in violation of 18 U.S.C. 2113(a) and (d).  He was
sentenced to 41 months' imprisonment, to be followed by five years'
supervised release.  The court of appeals affirmed (Pet. App. A1-A15).

   1. The evidence at trial showed that on December 18, 1987,
petitioner and his father drove to Greenville, Mississippi, in
petitioner's car and decided to rob a branch of Trustmark National, a
federally insured bank.  Petitioner's father, Fred Vernor, entered the
bank and gave one of the tellers a demand note written on the stub of
an unemployment compensation check issued to petitioner.  The teller
gave Fred a stack of bills in which a dye bomb had been concealed.  As
Fred left the bank with the money stuffed inside his shirt, the bomb
exploded, covering his hands and clothes with red dye and causing him
to drop the money and the demand note.  Fred jumped into petitioner's
car, and petitioner drove away.  Pet. App. A2.  When Fred was arrested
the next day, he was still wearing the dye-stained clothes.  Id. at
A4.

   Two days after his arrest, and after being informed of and waiving
his rights under Miranda v. Arizona, 384 U.S. 436 (1966), Fred Vernor
gave a statement to the police.  In the statement, he admitted that
petitioner and he had driven to Greenville with the intention of
robbing a bank.  He also described the commission of the robbery and
petitioner's participation in it.  Over the next several days, Fred
Vernor gave two other statements that implicated petitioner in the
robbery.  Pet. App. A5-A6 & nn. 1, 2.

   2. Petitioner and his father initially were tried together.  At
that trial, the jury convicted Fred Vernor but was unable to reach a
verdict as to petitioner.  Subsequently, petitioner was tried alone.
At that second trial, the government called Fred Vernor as a witness,
but he declined to testify on Fifth Amendment grounds.  The district
court therefore ruled that Fred Vernor was unavailable as a witness.
Pursuant to Fed. R. Evid. 804(b)(3), the government then offered Fred
Vernor's three statements, as declarations against interest.  Pet.
App. A6-A7.

   After a hearing, the district court admitted the statements.  Pet.
App. A6-A7.  The court found that the statements were "clearly against
the declarant's penal interest, in that he confessed to having
committed a crime." Gov't C.A. Br. 12.  Moreover, the court found, the
statements were corroborated by the testimony of several witnesses who
identified the getaway vehicle as petitioner's car, eyewitness
identification of petitioner as the driver of the getaway car, and the
fact that the demand note was written on the back of petitioner's
unemployment compensation check stub.  Id. at 13-14.

   Testifying in his own behalf, petitioner denied that he had been
present during the bank robbery.  He claimed instead that he had been
asleep at home during the robbery and that when he awoke late in the
afternoon, his car and his father were present at his house.  Pet.
App. A7.

   3. The court of appeals affirmed (Pet. App. A1-A15).  Relying on
Ohio v. Roberts, 448 U.S. 56 (1980), the court explained (Pet. App.
A8) that petitioner's father's statements were admissible against
petitioner if the statements either fell within "a firmly rooted
hearsay exception" or bore "'particularized guarantees of
trustworthiness."' Although the court declined to find declarations
against interest to be a firmly rooted hearsay exception, it concluded
that Fred Vernor's statements bore sufficient guarantees of
trustworthiness, and were therefore admissible under the Confrontation
Clause.  Examining "the circumstances surrounding" the statements, the
court found that Fred "would not have made the accusations against
(petitioner) unless he believed that they were true." Id. at A13.  In
particular, the court noted (ibid.) Fred's acceptance of
responsibility for the robbery, his lack of motive to avenge himself
on his son or to curry favor with the authorities, the absence of any
evidence that the authorities had made any promises to Fred if he
implicated his son, the lack of a plea bargain, and the voluntary
nature of the statements.  The court also concluded that the evidence
at trial strongly corroborated the statements.  Id. at A13-A15.

                               ARGUMENT

   Petitioner contends (Pet. 8-11) that the admission of his father's
statements violated the Confrontation Clause of the Sixth Amendment.
Relying on this Court's decisions in Douglas v. Alabama, 380 U.S. 415
(1965), and Lee v. Illinois, 476 U.S. 530 (1986), petitioner asserts
that the statements carried insufficient indicia of reliability to
warrant admission at trial.  The court of appeals correctly rejected
that contention, and further review is not merited.

   In Douglas v. Alabama, the Court reversed a conviction because the
prosecutor had read to the jury a confession attributed to the
defendant's accomplice.  The Court held that because the defendant
could not cross-examine the accomplice, the defendant had been denied
his right of confrontation.  As the Court later explained in Lee v.
Illinois, the holding in Douglas "was premised on the basic
understanding that when one person accuses another of a crime under
circumstances in which the declarant stands to gain by inculpating
another, the accusation is presumptively suspect and must be subjected
to the scrutiny of cross-examination." Lee, 476 U.S. at 541.

   In Lee, the Court again considered the admission of an accomplice's
statement at a defendant's separate trial.  In that case, the Court
reiterated that an accomplice's statement is presumptively unreliable
and thus ordinarily is inadmissible at the defendant's trial if the
accomplice is unavailable for cross-examination.  In particular, the
Court explained, "a codefendant's confession is presumptively
unreliable as to the passages detailing the defendant's conduct or
culpability because those passages may well be the product of the
codefendant's desire to shift or spread blame, curry favor, avenge
himself, or divert attention to another." 476 U.S. at 545.

   The Court in Lee acknowledged, however, that this presumption of
unreliability may be rebutted by showing that the accomplice's
statement was "supported by a 'showing of particularized guarantees of
trustworthiness.'" Lee, 476 U.S. at 543 (quoting Roberts, 448 U.S. at
66).  As the Court explained more recently in Idaho v. Wright, 110
S.Ct. 3139 (1990), that inquiry requires the trial court to assess
"the totality of circumstances that surround the making of the
statement and that render the declarant particularly worthy of
belief." Id. at 3149.

   The court of appeals faithfully applied that standard in sustaining
the admissibility of petitioner's father's statement.  The court
acknowledged at the outset that the statement was presumptively
unreliable, and was therefore inadmissible unless it was supported by
a showing of particularized guarantees of trustworthiness.  Pet. App.
A10.  The court explained further that "(t)he question whether a
hearsay statement bears sufficient indicia of reliability to satisfy
the requirements of the confrontation clause depends on the particular
circumstances under which the statement was made." Id. at A11.  The
court then identified the many circumstances that showed the
reliability of Fred Vernor's statement implicating petitioner:  Fred
Vernor took full responsibility for his own part in the robbery and
made no attempt to shift blame to petitioner;  nothing in the record
showed that Fred had any motive to avenge himself on petitioner;  the
FBI agent and police officers to whom Fred gave his statement
testified at trial and were cross-examined regarding the making of the
statements;  Fred did not enter a plea bargain that required him to
cooperate with the authorities, and nothing in the record suggested
that he made the statement in an attempt to curry favor with the
police;  and Fred made the statements shortly after the robbery when
the events were still fresh in his mind.  Id. at A13.  The court of
appeals' factbound evaluation of those factors is correct and warrants
no further review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Acting Assistant Attorney General

   J. DOUGLAS WILSON

      Attorney

   SEPTEMBER 1990