PAUL HARRIS, PETITIONER V. UNITED STATES OF AMERICA No. 89-7537 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. I) is unreported. JURISDICTION The judgment of the court of appeals was entered on March 30, 1990. The petition for a writ of certiorari was filed on May 17, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the admission of the redacted confession of petitioner's codefendant violated the Confrontation Clause of the Sixth Amendment. 2. Whether the district court properly admitted into evidence eyewitnesses' in-court and photo-spread identifications of petitioner. 3. Whether the district court properly admitted into evidence petitioner's statements to the arresting agents. STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted on one count of robbing an individual of personal property belonging to the United States, in violation of 18 U.S.C. 2112 and 2. He was sentenced to a term of seven years' imprisonment and ordered to pay $835.15 in restitution. The court of appeals affirmed. 1. The evidence at trial showed that on the afternoon of January 2, 1988, petitioner and codefendant Bianca Falu drove to a 7-11 store in North Miami Beach, Florida. Falu waited inside the car as petitioner entered the store. Linda Roberts and Karen Roseman, both of whom were employees of the Miami branch of the United States Secret Service, were at the store counter. Petitioner grabbed Roseman's purse. Before the purse strap broke, petitioner dragged Roseman through the store door into the parking lot. Once outside, petitioner managed to snatch the purse away. He jumped into the waiting car; Falu drove the pair off. Roseman's purse contained, among other things, her official photo identification card and a set of keys to the Secret Service's Miami field office. Pet. 11-15; Gov't C.A. Br. 3-12. 2. a. Before trial, petitioner filed a motion to suppress his incriminating statements to the arresting agents. He contended that as a result of lack of sleep, recent ingestion of cocaine, and the agents' promise to "feed him and let him sleep if he confessed," the statements he gave were not "voluntary." Pet. Mot. to Suppress Statements 2-3, United States v. Harris, No. 88-14-Cr (S.D. Fla. filed Feb. 16, 1988). After a hearing, at which both petitioner and one of the agents testified, the district court denied the motion. The court determined that the statement(s) (were) made by (petitioner) after Miranda warnings were given and acknowledged by (him), that at the time the statements were given, (petitioner was) coherent, and finally, that such statements were freely and voluntarily given with knowledge of (his) rights. Gov't C.A. Br. 21. b. Petitioner also filed a pretrial motion to suppress Roberts' and Roseman's photo-spread identifications of petitioner and to prohibit those witnesses from identifying him at trial. After a hearing, at which the agent who compiled the photo spread and the eyewitnesses testified, the district court denied the motion. The photo spread consisted of petitioner's "booking" photograph, together with those of five other men who "looked most similar" to petitioner. Pet. 7; Gov't C.A. Br. 18. Both Roberts and Roseman, after viewing the photo spread and being told that it contained the suspect's photograph, positively identified petitioner as the robber. In these circumstances, the district court concluded, the photo spread was not unduly suggestive and there was no substantial risk that the witnesses' identifications were mistaken. Gov't C.A. Br. 18. c. Petitioner also filed a motion for severance, contending that the government's introduction into evidence of codefendant Falu's statements incriminating him would violate the principles of Bruton v. United States, 391 U.S. 123 (1968). The district court denied the motion. At trial, over petitioner's objection, the district court admitted Falu's redacted statement into evidence. /1/ That statement read as follows: On Saturday, January 2nd, 1988 at approximately 1:00 p.m. I met with this guy at a crack house on Northwest 16th Avenue near 173rd Street I have known only for a few months and whenever we are together it usually to get high. On Saturday borrowed a car from a white guy. The car was a medium-size gray car. After borrowed the car, spent most of afternoon riding around getting high. Needed some money for crack, so decided that if got the chance to take some, would. Just before dark and about 5:00 o'clock, went to a 7-11 in North Miami Beach. * * * I waited in the car while he went inside to get me a soda. When he got out of the car, I turned the car around and backed it in. A couple of minutes later he got back. I saw that he had a purse. I drove away from the store fast, turning left out of the parking lot. A short time later, we went through the purse and threw away most of the things in it. We were still high and I don't remember where the things were thrown, although some were thrown away while we were driving. The purse was also thrown away. I know that what I did was wrong and against the law and I'm sorry for it. Bianca Falu. Gov't C.A. Br. 12-13. (The district court also admitted petitioner's corroborating confession into evidence. Id. at 11-12.) /2/ 3. In the court of appeals, petitioner contended that the admission of Falu's redacted confession, which implicated him when considered together with other evidence, violated the Confrontation Clause of the Sixth Amendment. Pet. C.A. Br. 14-19. Petitioner also challenged the district court's admitting into evidence the two eyewitnesses' in-court and photo-spread identifications of petitioner, contending that the photo spread was unduly suggestive and created a substantial risk of in-court misidentification. Pet. C.A. Br. 20-25. Finally, petitioner claimed that his statements to the arresting officers were involuntary and coerced, and thus should have been suppressed. Pet. C.A. Br. 25-27. The court of appeals summarily rejected each of petitioner's claims in an unpublished judgment order. Pet. App. I. ARGUMENT 1. Petitioner renews his contention (Pet. 16-21) that the admission of Falu's redacted confession, which implicated him when considered together with other evidence, violated the Confrontation Clause of the Sixth Amendment. In Bruton v. United States, supra, this Court held that "a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant." Richardson v. Marsh, 481 U.S. 200, 201-202 (1987). In Marsh, the Court held that Bruton does not bar the introduction of a codefendant's confession that has been redacted to eliminate all references to the existence of the defendant, and is only indirectly linked to the defendant by other evidence introduced at trial. The Court explained that when a codefendant's confession does not directly incriminate the defendant, there is no reason to depart from "the almost invariable assumption of the law that jurors follow their instructions," 481 U.S. at 206, including the instruction to consider the confession only against the codefendant. As petitioner points out (Pet. 17), the Court did not decide in Marsh whether a trial court may admit a codefendant's confession "in which the defendant's name had been replaced with a symbol or neutral pronoun." See 481 U.S. at 211 n.5. Since Marsh was decided, the courts of appeals have generally held that as long as the redacted statement is not facially incriminating to the defendant, and does not suggest to the jury that it contained actual names, it may be admitted at trial, subject to a limiting instruction. See, e.g., United States v. Sophie, 900 F.2d 1064, 1076-1077 (7th Cir. 1990); United States v. Romero, 897 F.2d 47, 53 (2d Cir. 1990); United States v. Garcia, 836 F.2d 385, 390-391 (8th Cir. 1987). Here, Falu's redacted statement, by its terms, did not directly implicate petitioner, nor did it suggest to the jury that it once contained names of certain individuals. Moreover, the district court gave appropriate limiting instructions both before it admitted the statement into evidence and before the jury retired for deliberations. As in Marsh, the redacted statement was only indirectly linked to petitioner by other evidence introduced at trial. In these circumstances, the admission of the redacted statement did not violate the Confrontation Clause. To be sure, as petitioner suggests (Pet. 20-21), the Eleventh Circuit appears to follow a different approach, one that does not confine its review of the challenged statement to the statement itself. Rather, the court of appeals considers the entire record to determine whether the challenged redacted statement "compels a direct, rather than indirect, implication of the complaining defendant." United States v. Vasquez, 874 F.2d 1515, 1518 (11th Cir. 1989), cert. denied, 110 S. Ct. 845 (1990); see United States v. Pendergraph, 791 F.2d 1462, 1465 (11th Cir.), cert. denied, 479 U.S. 869 (1986); United States v. Satterfield, 743 F.2d 827, 849 (11th Cir. 1984), cert. denied, 471 U.S. 1117 (1985); see also United States v. Burke, 700 F.2d 70, 85 (2d Cir.), cert. denied, 464 U.S. 816 (1983). Under that approach, the admission of Falu's statement could be considered error, since the record here left the jury little room to speculate that the unidentified individual was not petitioner. /3/ Nevertheless, this case does not present an occasion to address whatever differences may exist between the approaches used by the courts of appeals. This Court has made clear that a Bruton violation may be harmless error. E.g., Cruz v. New York, 481 U.S. 186, 193-194 (1987); Schneble v. Florida, 405 U.S. 427, 430 (1972). And the lower courts have consistently applied that principle. See, e.g., United States v. Long, 900 F.2d 1270, 1280 (8th Cir. 1990); United States v. DiCarlantonio, 870 F.2d 1058, 1062 (6th Cir.), cert. denied, 110 S. Ct. 323 (1989); United States v. Gutierrez-Chavez, 842 F.2d 77, 80-81 (5th Cir. 1988); United States v. Petit, 841 F.2d 1546, 1556 (11th Cir.), cert. denied, 108 S. Ct. 2906 (1987). Here, the record contains overwhelming evidence of petitioner's guilt, including his own confession, two eyewitness identifications, and the fact that he called the victim herself shortly after the robbery in order to arrange to return the stolen property. See Pet. 11-16. Accordingly, petitioner would not be entitled to relief under either of the approaches to the admissibility of redacted statements used by the courts of appeals. 2. Petitioner also contends (Pet. 22-27) that the district court erroneously admitted into evidence the two eyewitnesses' in-court and photo-spread identifications, because the photo spread was unduly suggestive and created a substantial risk of in-court misidentification. In Simmons v. United States, 390 U.S. 377, 384 (1968), this Court held that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Here, the record shows that the photo spread consisted of petitioner's "booking" photograph, together with those of five other men who "looked most similar" to petitioner. Pet. 7; Gov't C.A. Br. 18. Both Roberts and Roseman, after viewing the photo spread and being told that it contained the suspect's photograph, positively identified petitioner as the robber. /4/ In these circumstances, petitioner's challenge to the eyewitness identifications is meritless. 3. Finally, petitioner contends (Pet. 27-29) that his statements to the arresting agents were involuntary and coerced, and thus should have been suppressed. The record, however, refutes that challenge. See pp. 2-3, supra. Indeed, petitioner claims that the lower courts' findings were "clearly erroneous." Pet. 27. Yet he offers no persuasive reason for the Court to deviate here from its general practice of declining to review factual findings concurred in by both lower courts. E.g., Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 318 n.5 (1985); United States v. Reliable Transfer Co., 421 U.S. 397, 401 n.2 (1975). Accordingly, no further review of petitioner's fact-specific claim is warranted. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General KAREN SKRIVSETH Attorney JULY 1990 /1/ Codefendant Falu failed to appear for the second day of trial. The trial continued in her absence and the jury also found her guilty of the charged offense. The authorities arrested Falu the day after the jury returned its verdict. The district court later sentenced Falu to a term of 30 months' imprisonment. Gov't C.A. Br. 2-3. Before admitting the statement into evidence, the district court instructed the jurors that the statement had been redacted and that they should draw no inferences or conclusions from that fact. Gov't C.A. Br. 14. /2/ At the close of the case, the district court instructed the jury that it should treat statements made by petitioner and Falu with care and that it was not to consider any of those statements as evidence against the other defendant. Gov't C.A. Br. 14. /3/ The Eleventh Circuit's approach appears to be the sort of "contextual implication" doctrine this Court eschewed in Richardson v. Marsh, 481 U.S. at 209. /4/ The agent conducting the photo-spread identification should not have told the witnesses that the suspect's photograph was included. Nonetheless, this apparent lapse in judgment scarcely undermines the reliability of the identification procedure in light of the fact that both Roseman and Roberts "got a good look at (petitioner) during the robbery," Gov't C.A. Br. 5, and unhesitatingly identified his photograph.