HENRY A. CROCKETT, PETITIONER V. UNITED STATES OF AMERICA THRESSA CREWS, PETITIONER V. UNITED STATES OF AMERICA Nos. 86-6899 and 86-6901 In The Supreme Court Of The United States October Term, 1986 On Petition For A Writ Of Certiorari To The United States Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-26a) /1/ is reported at 813 F.2d 1310. JURISDICTION The judgment of the court of appeals was entered on March 19, 1987. A petition for rehearing in No. 86-6899 was denied on May 5, 1987. The petition for a writ of certiorari in No. 86-6901 was filed on May 15, 1987, and the petition in No. 86-6899 was filed on May 18, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court's refusal to allow co-defendants to cross-examine one another, on the ground that neither had implicated the other and was thus not an adverse witness, violated either the Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. STATEMENT Following a jury trial in the United States District Court for the District of Maryland, both petitioners were convicted on one count of conspiracy to possess with intent to distribute phencyclidine (PCP), in violation of 21 U.S.C. 846, and on one count of distribution of PCP and one count of possession of PCP with intent to distribute it, both in violation of 21 U.S.C. 841(a) (1). Petitioner Crockett was also convicted on two additional counts of distribution of PCP. Petitioner Crockett was sentenced to a total of 30 years' imprisonment; petitioner Crews was sentenced to six months' imprisonment. The court of appeals affirmed (Pet. App. 1a-26a). 1. The evidence at trial established that petitioner Crockett trafficked in substantial amounts of PCP over a long period and that petitioner Crews participated extensively in distributing PCP. In 1981 an employee of United Airlines identified Crockett as the person who shipped two paint cans of PCP from Los Angeles International Airport to Baltimore-Washington International Airport (BWI). Susan Clay picked up the PCP at BWI, where she was arrested by an agent of the Drug Enforcement Administration (DEA). Clay, who had previously lived with Crockett, testified that Crockett sent the PCP to her in lieu of child support, and that she was expected to distribute the drug and send some of the profits back to him. The evidence also showed that Janet Turner, who had also lived with Crockett, received PCP from him in 1984; she also testified that it was intended as a form of child support. Pet. App. 4a, 15a. In the fall of 1984, while working as a DEA informant, Clay twice purchased PCP from Crockett with money supplied by the DEA. In the spring of 1985, Clay introduced Crockett to DEA Agent Lance Williams, who was posing as a prospective buyer of PCP. After some negotiations, Williams and Crockett agreed to a sale and met at a hotel parking lot to conduct the transaction. Regina Armstrong, Crockett's wife, was also at the hotel, in a car driven by petitioner Thressa Crews. Crockett went to the driver's window and spoke to the women in the car. Crockett's wife then got into Agent Williams' car and gave him two quart bottles of PCP. Agent Williams and Crockett later made arrangements for another purchase of PCP. As before, Williams and Crockett met with Crockett's wife, who was again accompanied by petitioner Crews. After Agent Williams saw the PCP in the car driven by Crews, other agents moved in and arrested Crockett, his wife, and Crews. Crockett's wife subsequently pleaded guilty. Other evidence, such as evidence that Crews had rented six cars in Crockett's name and had received gifts from him and his wife, tied Crews to Crockett's PCP business. Pet. App. 4a, 8a, 16a-17a. In sum, Crockett "was identified in drug involvement by an airline employee, three of his co-conspirators, and two undercover detectives" (Pet. App. 15a). Crews "was present at the two drug transactions * * * between Mr. Crockett and the government agent, Mr. Williams" (id. at 16a). She was the driver for Crockett's wife, who "had the PCP in a gym bag and had the pungent odor of PCP on her clothing," and she was privy to at least one conversation as to how a PCP transaction would take place (id. at 16a-17a). 2. At trial, Crockett and Crews each testified, and each sought to cross-examine the other. The district court refused to allow cross-examination, finding that neither one had implicated the other, so that they were not adverse witnesses (Pet. App. 1b-2b, 1d-4d). The court noted that each defendant was free to call the other as his or her own witness if the co-defendant consented to testify. Both Crockett and Crews declined on Fifth Amendment grounds to testify on behalf of the other. Pet. App. 5a. The court of appeals rejected petitioners' contentions that the district court erred in refusing to permit them to cross-examine each other. As did the district court, the court of appeals relied on its previous decision in United States v. Mercks, 304 F.2d 771, 772 (4th. Cir. 1962), in which the court had held that a defendant has a right to cross-examine a co-defendant only if the co-defendant's testimony is incriminatory. The court of appeals explained that the Confrontation Clause of the Sixth Amendment provides defendants with a right to be confronted with the witnesses against him, not with "a plenary right to elicit friendly testimony" (Pet. App. 9a). The court noted that allowing cross-examination of a non-hostile witness could allow the defendant to "smuggle 'self-serving statements' into trial under the cloak of hostility," perhaps thereby giving false credibility to the testimony in the eyes of the jury (ibid.). The court of appeals also reviewed the testimony and held that the district court had correctly concluded that neither petitioner had incriminated the other (Pet. App. 7a-8a; 13a-14a). Crockett's testimony did not incriminate Crews, the court stated, because "(n)ot only did Crockett fail to testify that Crews participated in the distribution of PCP, he denied having much contact with her at all" (id. at 8a). While Crockett mentioned that "someone else" had been involved with him in certain PCP transactions, the court agreed with the district court that "Crockett was clearly referring to his wife Regina," on whom he consistently attempted to pin responsibility (ibid.). Nor did Crews incriminate Crockett. While she mentioned at one point that Crockett had spent money freely, she testified that she never suspected that he was selling PCP. Indeed, the court noted, her entire defense was premised on the claim that "she neither knew nor had reason to suspect Crockett's drug involvement" (id. at 14a). Moreover, the court concluded, any error in preventing Crockett from cross-examining Crews was clearly harmless given the "wealth of condemnatory evidence" of his guilt (id. at 15a). Judge Ervin agreed that Crockett's conviction should be affirmed, but dissented from the affirmance of Crews' conviction (Pet. App. 21a-26a). Unlike the majority and the district court, he thought it "possible that the jury equated Crews with the unnamed woman onto whom Crockett attempted to shift much of the blame for his wrongdoing" (id. at 21a). ARGUMENT Petitioners both contend (86-6899 Pet. 11-19; 86-6901 Pet. 11-19) that the district court's refusal to allow them to cross-examine one another was a violation of their Sixth Amendment right of confrontation and their Fifth Amendment right to due process. 1. The courts of appeals agree that the right of cross-examination is triggered by incriminating testimony. The Eleventh Circuit has held that a defendant does not have the right to cross-examine a co-defendant who did not even mention him in his testimony, let alone implicate him in any wrongdoing. United States v. Andrews, 765 F.2d 1491, 1501 (11th Cir. 1985), cert. denied, No. 85-5572 (Jan. 13, 1986). As the court explained, "the Sixth Amendment guarantees only the opportunity to confront adverse witnesses" (ibid. (emphasis in original)). The Second Circuit reached the same conclusion in United States v. Bujese, 434 F.2d 46, 48 (2d Cir. 1970), cert. denied, 401 U.S. 978 (1971). No court has held to the contrary. /2/ These decisions are consistent with this Court's cases interpreting the Confrontation Clause and the right of cross-examination. In Bruton v. United States, 391 U.S. 123 (1968), the Court held that a defendant is deprived of his rights under the Confrontation Clause when his non-testifying co-defendent's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider the confession only against the co-defendant. In such a case, the Court held, it cannot be assumed that the jury will follow the court's instruction and ignore the evidence as it pertains to one defendant and consider it only against the other. In applying the principles of Bruton, the courts of appeals have uniformly held that the defendant's right of confrontation under Bruton comes into play only when the co-defendant's confession actually inculpates the defendant. When the confession either does not mention or does not incriminate the defendant, his right of confrontation is not abridged. United States v. Jenkins, 785 F.2d 1387, 1393 (9th Cir. 1986). cert. denied, No. 86-320 (Oct. 6, 1986); United States v. Porter, 764 F.2d 1, 16 (1st Cir. 1985); United States ex rel. Cole v. Lane, 752 F.2d 1210, 1216 (7th Cir. 1985); United States v. Webster, 734 F.2d 1048, 1054 n.6 (5th Cir.), cert. denied, 469 U.S. 1073 (1984); United States v. Belle, 593 F.2d 487, 493-494 (3d Cir.), cert. denied, 442 U.S. 911 (1979); United States v. Guillette, 547 F.2d 743 (2d Cir. 1976), cert. denied, 434 U.S. 839 (1977); see generally, Richardson v. Marsh, No. 85-1433 (April 21, 1987). If there is no Confrontation Clause violation unless the extra-judicial confession of a co-defendant actually implicates the defendant, it follows that the Confrontation Clause is not offended if a defendant is denied the opportunity to cross-examine a co-defendant whose testimony does not incriminate him. /3/ 2. The dispute between Judge Ervin and the majority of the court of appeals centered on the fact-specific question whether the jury might have concluded that the "someone else" referred to in petitioner Crockett's testimony was petitioner Crews. The majority agreed with the district court's finding that the "someone else" that Crockett mentioned as having obtained the PCP and to whom he paid the money from the drug sale clearly was his wife Regina, who had pleaded guilty; the majority noted that it would not have made any sense for the jury to infer from Crockett's testimony that the "someone else" was Crews (Pet. App. 8a). That conclusion is correct. Crockett consistently tried to focus the blame on his wife Regina and on Susan Clay (Tr. 506-507, 525-531, 535-537, 562, 564-567), but he never suggested that Crews was involved in any PCP transactions. In fact, he hardly mentioned Crews in his lengthy testimony; he stated that he had had very little contact with her, explaining that she was a friend of his wife (Tr. 549-551). Likewise, Crews did not incriminate Crockett in her testimony. She professed complete ignorance of any drug dealing and denied that Crockett said anything about a drug deal when he spoke to her and his wife Regina in their car at the hotel parking lot (10/3/85 Tr. 141-142, 154-155). Crews admitted that she was a good friend of Regina and that she drove Regina around in rented cars that Crockett and Regina paid for, but she said she had no reason to suspect that either Crockett or Regina was involved in the distribution of PCP (id. at 134-136, 147-149). She did mention that Crockett gave money to Regina, sometimes fairly large amounts of cash; but Crews said that, as far as she knew, Crockett had various legitimate business dealings (id. at 157-158). As the court of appeals remarked (Pet. App. 14a), any intimation by Crews that she knew that Crockett or his wife was selling PCP would have undermined her entire defense. In short, there is ample support in the record for the conclusion that neither petitioner incriminated the other. In any event, this factual finding, concurred in by both lower courts, does not merit further review. United States v. Reliable Transfer Co., 421 U.S. 397, 401 n.2 (1975); Berenyi v. District Director, 385 U.S. 630, 635 (1967). Finally, even if it is assumed that the restriction on cross-examination was error, it is subject to a "harmless error" analysis. Delaware v. Van Arsdall, No. 84-1279 (Apr. 7, 1986). As the court of appeals noted, the evidence against Crockett was so overwhelming that his inability to cross-examine Crews was clearly harmless (Pet. App. 14a-15a). As for Crews, the evidence against her was not overwhelming, but was nevertheless substantial, as found by the court of appeals (Pet. App. 15a-17a). In light of the strength of the prosecution's case, it is inconceivable that Crockett's references to "someone else" in the course of his testimony convinced the jury to convict Crews. CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General KATHLEEN A. FELTON Attorney JULY 1987 /1/ "Pet. App." refers to the appendix to the petition in No. 86-6899. /2/ The cases cited by petitioners (86-6899 Pet. 15; 86-6901 Pet. 14) support only the proposition, with which the courts below agreed, that a defendant is entitled to cross-examine a co-defendant who incriminates him. None of the cases held that a defendant has a right to cross-examine a co-defendant who gives favorable testimony. Accordingly, none conflict with the decision below, and we do not understand petitioners to claim that there is a conflict in the lower courts. In Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968), cert. denied, 394 U.S. 1004 (1969), the defendant complained only that he was not allowed to cross-examine his testifying co-defendants "insofar as (their testimony) was detrimental to him." The court of appeals agreed that he had that right and noted that the defendant had in fact been given the opportunity to cross-examine the co-defendants, but that he had declined the offer. The court had no occasion to address the question whether a defendant who testified only favorably to a co-defendant would also be subject to cross-examination by that co-defendant. Id. at 1196-1197. In United States v. Zambrano, 421 F.2d 761 (3d Cir. 1970), the court of appeals reversed because the district court refused to allow cross-examination of a co-defendant. Unlike this case, however, the co-defendant's testimony in Zambrano directly implicated the defendant and was clearly very damaging to him, in a case where the other evidence of his guilt was not overwhelming. Commonwealth v. Mullen, 23 N.E. 51, 52 (Mass. 1890), and State v. Holmes, 171 S.E. 440, 443 (S.C. 1933), both held merely that a defendant who takes the stand is subject to cross-examination just as is any other witness. In Holmes the court remarked that the co-defendant also had a right to cross-examine, but in that case it was clear that the testifying defendants had given testimony that was very damaging to the appellant (id. at 442). The court in Mullen stated that it was proper for the trial judge, in his discretion, to allow cross-examination by the co-defendants "as to matters material to their clients." Whether the testifying defendants were hostile or favorable to their co-defendants was unclear and the court said nothing about whether the other defendants could cross-examine a co-defendant who testified favorably to them. Finally, State v. Crooker, 122 A. 865 (Me. 1923), held only that a defendant has the right to cross-examine a co-defendant who is clearly adverse to him. /3/ Petitioners also claim that their Fifth Amendment right to due process was offended by the restriction on cross-examination. However, when the constitutional provision that specifically guarantees a certain right, here the Confrontation Clause, is shown not to have been abridged, the same claim of unconstitutionality grounded on the more general basis of the Due Process Clause should also be foreclosed.