LUIS OLIVIER, PETITIONER V. UNITED STATES OF AMERICA No. 89-7715 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 Second Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-4) is reported at 894 F.2d 41. JURISDICTION The judgment of the court of appeals was entered on January 9, 1990. A petition for rehearing was denied on March 12, 1990 (Pet. App. 5). The petition for a writ of certiorari was filed on June 7, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly excluded from evidence two versions of a police report on the ground that the documents contained multiple hearsay. STATEMENT After a jury trial in the United States District Court for the Southern District of New York, petitioner was convicted on one count of conspiring to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. 846, 841(a) and 841(b)(1)(B), and on one count of possessing more than 500 grams of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B), and 18 U.S.C. 2. /1/ He was sentenced to concurrent terms of six and one half years' imprisonment, to be followed by a five-year term of supervised release, and special assessments totalling $100. The court of appeals affirmed. Pet. App. 1-4. 1. The evidence at trial showed that, at about 9:15 p.m. on July 27, 1988, in New York City, a confidential informant named Mario Perez was working with agents of the Drug Enforcement Administration (DEA). Another confidential informant introduced Perez to petitioner, who offered to sell Perez one kilogram of cocaine for $20,000. Perez agreed, and waited by his car with the other informant while petitioner went to make the necessary arrangements. About fifteen minutes later, petitioner returned and led Perez to a nearby apartment building, while the other informant stayed by the car. Two DEA agents, Geisel and Hunt, observed these events. Gov't C.A. Br. 2-4. Petitioner's co-defendant, Carlos Cruz, admitted petitioner and Perez into apartment number six. Petitioner asked Cruz whether he had the cocaine, and Cruz lifted up his shirt, retrieved a package containing the cocaine, and handed it to petitioner, who gave it to Perez for inspection. Perez signalled the agents with an electronic beeper to indicate that cocaine had been displayed to him. Perez then told petitioner and Cruz that he needed to get the money from his car. As petitioner was accompanying Perez to get the money, the agents arrested him. Perez told the agents that Cruz remained in apartment number six. The agents arrested Cruz in the apartment and seized the package of cocaine from a table next to him. After petitioner was given Miranda warnings, he laughed and told the agents that he had nothing to fear since it was not he but Cruz who had touched cocaine. /2/ Pet. App. 2; Gov't C.A. Br. 2-6. 2. During the trial, the government provided petitioner, prior to Agent Geisel's testimony, with a copy of Agent Geisel's arrest investigation report. Paragraph three of the report described a statement made by the informant, Perez, to Agent Hunt, after the agents had arrested petitioner and before they arrested Cruz; the statement was then apparently communicated to Agent Geisel who included it in his report. The report stated: "At this point, the SCI (special confidential informant) told S/A Hunt that the SCI was inside apartment six, inside 512 West 162nd Street, where there was another male and one kilogram of cocaine." Pet. C.A. App. 71. Petitioner's counsel noted that the version of the report furnished him had one word crossed out and that the correction was initialed by Geisel. After this was brought to the district court's attention, Geisel was questioned about the alteration outside the presence of the jury. Geisel testified that he had made the change to correct an error. As the report was originally written, it stated that "the other SCI was inside apartment six"; Geisel explained that he had deleted the italicized word "other" because it was a mistake. /3/ Following the hearing, and before calling Geisel as a witness, the government provided petitioner with an uncorrected copy of the report. Gov't C.A. Br. 17 n.**. At trial, Perez testified that when he left with petitioner to go to the apartment, the second informant remained by the car. He also testified that after petitioner was arrested he had told Agent Hunt that Cruz and the cocaine were in apartment number six. He denied telling Hunt that the second informant had been in the apartment. Gov't C.A. Br. 18. Agent Hunt testified that he had spoken to Perez after petitioner was arrested and before entering the apartment, but he did not recall whether he had recounted his conversation with Perez to Geisel. Petitioner did not specifically ask Hunt whether Perez had told him that the second informant was inside the apartment or whether Hunt had so indicated to Geisel. Gov't C.A. Br. 18. Petitioner then sought to introduce Agent Geisel's original DEA report, arguing that it contained "numerous inconsistent statements," and that it satisfied the business records exception to the hearsay rule. The court rejected that argument, noting that paragraph three contained "a hearsay statement by the special confidential informant to Hunt. Geisel is the author of the report. So apparently, the source of the information for Geisel was Hunt. So now we have double hearsay." Tr. 311; Gov't C.A. Br. 19. Geisel testified that he had spoken with Hunt before preparing the report and that Hunt had told him about a conversation with Perez. Gov't C.A. Br. 18. In cross-examining Geisel, petitioner was permitted to raise the issue of the alteration of the report to the extent of eliciting testimony that Geisel had crossed out the word "other" from a statement and in so doing had changed the statement's meaning. Pet. App. 3; Gov't C.A. Br. 26, 34. Petitioner was also permitted to cross-examine Geisel about non-hearsay statements in the report. Tr. 351-355, 379-386; Gov't C.A. Br. 33-34. At the close of Agent Geisel's testimony, petitioner renewed his efforts to admit paragraph three, arguing that it was "affirmative evidence of fabrication," but the court reaffirmed its ruling that the reports were not admissible because "paragraph 3 is hearsay upon hearsay." Tr. 393-394; Gov't C.A. Br. 19. 3. On appeal, petitioner argued that the district court had erred in excluding the original and corrected versions of the report. He claimed that both versions of Geisel's report were admissible for the non-hearsay purpose of establishing fabrication by the government agents (Fed. R. Evid. 801(c)), and that they fell within a variety of exceptions to the hearsay rule. /4/ Pet. App. 4; Gov't C.A. Br. 16. The court of appeals affirmed. Pet. App. 1-4. It first held that petitioner had waived several new theories raised on appeal for admitting the documents because he had failed to assert them in the district court and because they were not obvious from the record. In any event, the court concluded, those theories did not apply, and "if error occurred in excluding the reports, the error was harmless." Pet. App. 4. The court also held that petitioner's original contentions -- that the documents were admissible as proof of government fabrication, as prior inconsistent statements, and as business records -- were without merit. Citing Fed. R. Evid. 805, /5/ the court explained "(r)egardless of the evidentiary rule invoked * * * the reports contain multiple hearsay and cannot be admitted under any exception to the hearsay rule." ARGUMENT 1. Petitioner's sole contention (Pet. 5-7) is that the district court erred when it excluded the uncorrected and corrected versions of the arrest report on the ground that they constituted hearsay within hearsay under Fed. R. Evid. 805. This fact-bound argument does not withstand analysis and does not warrant this Court's review. Subject to exceptions set forth in the Federal Rules of Evidence, a statement is hearsay if it is "other than one made by the declarant when testifying at the trial or hearing," and is "offered to prove the truth of the matter asserted." Fed. R. Evid. 801(c). Here, petitioner claimed that Geisel's reports were admissible for the limited and non-hearsay purpose of establishing that "Geisel changed his story," regardless of the truth of "either version of the facts." Pet. 6. Thus, according to petitioner, the documents were not offered to establish the truth of the matters asserted. Petitioner's claim that the documents were not offered for their truth, however, cannot be squared with his theory of the documents' relevance. Only if the first version of the document were "true" would there be any possible motive for the officers to engage in a "cover-up" (Pet. 6) by altering its contents, as petitioner claims. Thus, his argument necessarily entailed establishing that the uncorrected version contained true statements. Specifically, according to petitioner, the documents were probative evidence because the original version of Geisel's report indicated that the second informant was present in the apartment when the drugs were displayed to Perez; the corrected version struck the word "other" from the description of the informant, in order to conceal this fact. Pet. 6. Under petitioner's own theory, therefore, it is inescapable that petitioner sought to introduce the uncorrected copy of the report to establish that it -- and not the final version -- was accurate; this can only be described as use of the document as hearsay. The second version of the document was equally inadmissible because petitioner sought to employ it to establish not only the altered ("false") statement, but also the original ("true") statement that had been inked out and initialed by Geisel. This also was an effort to use a document to prove the truth of a statement contained therein. /6/ Petitioner suggests (Pet. 7) that the district court should have admitted the documents "with a limiting instruction that they were not to be considered for the truth" but only to show an alteration. As noted, that argument does not justify the admission of the unaltered document, which could only be relevant for its truth. Cf. United States v. Garcia-Duarte, 718 F.2d 42, 46 (2d Cir. 1983) (evidentiary significance of defendant's address book containing co-defendant's telephone number "depended solely on the truth of the matter asserted" and therefore was inadmissible hearsay). As to the altered document, the hearsay rule is not applicable to a statement offered "to establish a foundation for later showing, through other admissible evidence, that it was false." Anderson v. United States, 417 U.S. 211, 220 (1974); United States v. Knigge, 832 F.2d 1100, 1108 (1987), amended, 846 F.2d 591 (9th Cir. 1988); United States v. Adkins, 741 F.2d 744, 746 (5th Cir. 1984), cert. denied, 471 U.S. 1053 (1985). But that principle did not require the admission of the second report here. First, petitioner was permitted to establish the fact of the deletion in the document through examination of Geisel. Gov't C.A. Br. 26. Geisel testified that in reviewing the report prior to trial he noted a grammatical mistake and sought to correct it by crossing out the word "other." Ibid. At most, petitioner sought to introduce the document for the entirely cumulative purpose of proving the same circumstance. The district court was not required to admit such redundant evidence, see Fed. R. Evid. 403 (cumulative evidence may be excluded), and its exclusion plainly was not prejudicial in the context of this case. /7/ Second, the nature of the alteration of Geisel's report made it inevitable that introduction of the corrected version of the document would expose the jury to the uncorrected statement; both were contained in the same document. To allow petitioner to offer the corrected version for an alleged non-hearsay purpose would have allowed him effectively to circumvent the hearsay bar on admitting the uncorrected version. As a result, the district court did not abuse its discretion in holding that the multiple hearsay nature of the document precluded its admission. /8/ 2. In any event, as the court of appeals correctly ruled (Pet. App. 4), any error in excluding the documents was harmless. The evidence of petitioner's guilt was extremely strong. Perez testified that petitioner had led him to apartment number six, where petitioner and Cruz had attempted to sell him a kilogram of cocaine. That testimony was corroborated by the testimony of Agents Hunt and Geisel, who had seen petitioner negotiate with Perez and then lead him to the apartment building in question while the second informant stayed by the car. Perez signalled the agents that he had been shown cocaine, and was accompanied by petitioner when he emerged from the building. The agents then found Cruz in apartment number six, with the cocaine next to him. Petitioner laughed when the agents informed him of his rights, stating that he had nothing to fear because he had not touched the drugs. The defense itself called witnesses who testified that petitioner had been in the building that night. Moreover, any possible evidentiary significance of the excluded investigation reports was further diluted by the fact that petitioner was allowed to cross-examine Geisel about his preparation of them and to cross-examine Perez and Hunt about their statements. /9/ Under the circumstances, the documents' exclusion was harmless. 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 VICKI S. MARANI Attorney AUGUST 1990 /1/ Petitioner was indicted and tried jointly with a co-defendant, Carlos Cruz, who was also convicted on both counts. Pet. App. 2. /2/ At trial, this statement was redacted and admitted against petitioner only, as required by Bruton v. United States, 391 U.S. 123 (1968). The jury was told that petitioner "just started laughing and he said he didn't have anything to fear since he didn't touch the coke." Gov't C.A. Br. 6 n*. /3/ The relevant colloquy (1/26/89 Tr. 35-37; Gov't C.A. Br. 17) was as follows: THE COURT: Do you make the representation, Agent Geisel, whatever is blacked out is a mistype or something that was unintentionally put on the paper as opposed to something that's confidential? MR. GEISEL: That's correct, Your Honor. It was a mistake that I had made. I crossed it out and I initialed it. THE COURT: What do you mean by a mistake, a typing mistake? MR. GEISEL: Yes. * * * It was another grammatical error and made in the report, one among many in this DEA 6 that I did write. * * * THE COURT: Do you remember, Agent, what was typed there? MR. GEISEL: Yes, Your Honor, I do. THE COURT: Fine. What was typed there? You are under oath. MR. GEISEL: The word 'other.' THE COURT: It read at this point the SCI told S/A Hunt that the other SCI. * * * MR. GEISEL: Correct. THE COURT: I see. Fine. You may sit down. I think that answers your question. (PETITIONER'S COUNSEL): It does, Your Honor. /4/ Petitioner renewed his claims that the documents were admissible under the business records exception to the hearsay rule (Fed. R. Evid. 803(6)) and the exceptions for prior inconsistent statements (Fed. R. Evid. 801(d)(1) and 613(b)). He raised new contentions that they were admissible as public records (Fed. R. Evid. 803(8)), as admissions by a party-opponent or its agent (Fed. R. Evid. 801(d)(2)(B)) and as material used by Geisel to refresh his recollection (Fed. R. Evid. 612). /5/ Fed. R. Evid. 805 provides: "Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." /6/ Hence, the district court properly excluded Geisel's reports because the crucial statement contained in paragraph three reflected information relayed from Perez to Hunt to Geisel -- and no hearsay exceptions covered each link in the chain as demanded by Fed. R. Evid. 805. Cf. United States Football League v. National Football League, 842 F.2d 1335, 1376 (2d Cir. 1988) (notes taken at a meeting reflecting comments of others were properly excluded under Rule 805 because offered for their truth rather than for the fact that the statements were made). /7/ Indeed, on the present record, the court could properly have excluded even testimonial evidence of the fact of deletion. A statement may be admitted on the ground that a false statement was made only if there is admissible evidence to establish that it is false. Anderson, 417 U.S. at 220. Here, petitioner never offered any admissible evidence to contradict or impeach the truth of Geisel's corrected report. As noted, nothing in Geisel's testimony impeached the truth of the corrected report; he expressly affirmed its accuracy. Nor did the two hearsay declarants in Geisel's report furnish any other source of doubt about its accuracy. (Hunt could not recall telling Geisel about any conversation he had with Perez, even when petitioner sought to refresh his recollection with the report. And Perez flatly denied telling Hunt that the second informant was in the apartment. Gov't C.A. Br. 18.) The district court itself stated that "a fair reading of (the document) doesn't give rise to any possible inference of a desire to hide anything. If there were a desire to hide anything, it would have been whited out or a new report, a phony report would have been typed. He wouldn't have crossed it out and initiated (sic) it. Your point is ill taken." Tr. 393-394; Gov't C.A. Br. 27. Thus, petitioner had absolutely no basis for contending that the second report was a fabrication -- unless he could admit the first report to prove the truth of its contents. Against that background, it plainly was not error -- let alone prejudicial error -- to exclude the reports from evidence. /8/ In passing (Pet. 7 n.1), petitioner faults the court of appeals for supposedly failing to determine whether the multiple hearsay statements in Geisel's report satisfied some exception to the hearsay rule. But the court did make such a determination -- adverse to petitioner. After acknowledging that "(e)ach hearsay statement within multiple hearsay statements must have a hearsay exception in order to be admissible," it found that the district court had "correctly refused to receive the two versions of the report into evidence in the absence of a showing that they fit within the hearsay within hearsay exception" (Pet. App. 4). Since that exception premises admissibility upon "each part of the statements conform(ing) with an exception to the hearsay rule provided in these rules" (Fed. R. Evid. 805), the court of appeals plainly found that the alleged statements of Perez and Hunt did not independently satisfy any exception to the hearsay rule. /9/ Petitioner also received the benefit of a missing witness instruction, which permitted the jury to infer that the second informant would have contradicted Perez about what had transpired in apartment number six.