No. 96-9412 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 JOHN MICHAEL WILLIAMS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEMETRA LAMBROS Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals correctly concluded that petitioner " opened the door" to otherwise inadmissible evidence when, on cross examination, he elicited answers from a witness that had the potential to mislead the jury. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-9412 JOHN MICHAEL WILLIAMS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPINION BELOW The opinion of the court of appeals(Pet. App. 1-6) is reported at 106 F.3d 1173. JURISDICTION The judgment of the court of appeals was entered on February 14, 1997. A petition for rehearing was denied on March 17, 1997. The petition for a writ of certiorari was filed on Monday, June 16, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the Eastern District of Virginia, petitioner was convicted on ---------------------------------------- Page Break ---------------------------------------- 2 three counts of distributing methamphetamine, in violation of 21 U.S.C. 841(a)(l). He was sentenced to 121 months' imprisonment. The court of appeals affirmed. Pet. App. 2-3. 1. In August 1994, Michael Angel, a confidential informant, agreed to make recorded telephone calls for the purpose of purchasing methamphetamine from petitioner. During the first call on August 18, Angel stated that he would "shoot" petitioner $400. Shortly thereafter, Angel and DEA Agent Jeffrey Proctor shipped petitioner an express mail package containing $400. The package bore the return address of a post office box in Merrifield, Virginia, which agent Proctor had opened specifically for the purpose of receiving methamphetamine from petitioner. On September 1, Agent Proctor retrieved a package from the Merrifield post office box containing 9.187 grams of methamphetamine and a computer disk. Pet. App. 3, 55-58. Also on September 1, Angel placed another recorded call to petitioner, who asked Angel if he had received "it." Angel responded that he had, and that he would probably "double." A few days later, Angel and Agent Proctor sent petitioner an envelope containing $800 in cash. A second package addressed to Angel was retrieved from the Merrifield post office box on September 19. It contained a computer disk and 15.15 grams of methamphetamine, which was 10 to 12 grams less than Angel had expected. Pet. App. 3, 61, 69. That same day, Angel placed a third recorded call to petitioner to inform him that the recent shipment was short. The two discussed the weight of the ---------------------------------------- Page Break ---------------------------------------- 3 shipment, and soon thereafter, another envelope addressed to Angel arrived at the Merrifield post office box. Inside were 3.145 grams of methamphetamine and an Auto Parts Club newspaper. Id. at 3, 74-80. Angel died in November 1994. In January 1995, the DEA executed a search warrant of petitioner's residence Items seized included a triple beam scale, a pocket scale with residue similar to methamphetamine, a baggy of suspected methamphetamine, and an address book listing an address for Mike Angel in handwriting matching that on the envelope sent to the Merrifield post office box. Pet. App. 3. 2. At trial, defense counsel asked Agent Proctor, on cross- examination, a series of questions aimed at casting doubt on the substance of the conversations between Angel and petitioner as well as on the agent's knowledge of the relationship between the two men. Agent Proctor acknowledged that neither Angel nor petitioner specifically mentioned methamphetamine in any of their recorded conversations. Pet. App. 115-116. Defense counsel continued: Q:You don't know what the substance of any conversation between Michael Angel and [petitioner] would have been between August 1 and August 18, 1994, do you? A: No. *** Q: [Y]ou have no personal knowledge of any dealings between [petitioner] or anybody at the telephone number that was styled in Michael Angel between -- or for that first four years up until August the 18th, 1994; isn't that correct? ---------------------------------------- Page Break ---------------------------------------- 4 A: I was never present during the dealings between Michael Angel and [petitioner] . Q: You have no personal knowledge why Michael Angel would owe [petitioner] money; isn't that also correct? A: This is correct. Pet. App. 115-117. On redirect examination, the government asked Agent Proctor, "And did he [Angel] say whether or not he had ever obtained methamphetamine from the defendant?" Pet. App. 5. Overruling defense counsel's objection on hearsay grounds, the district court ruled that the defendant had "opened the door" to the question, and allowed Agent Proctor to answer it. The agent responded that Angel had told him that Angel had made "multiple purchases" from petitioner, both personally and through the mail. Ibid. 3. The court of appeals affirmed. Pet. App,. 1-6. It found that "the district court did not abuse its discretion in admitting the out-of-court statement" relating to Angel's drug transactions with petitioner, because "the defendant opened the door to this line of questioning. " at 5. The court of appeals reasoned that the cross examination of Agent Proctor "had the potential to mislead the jury into thinking that the agent had no knowledge regarding Angel's dealings with [petitioner]". Ibid The court of appeals therefore concluded that the district court properly "permitted the prosecution to introduce Angel's out-of-court statement to close the door opened by the defense. " ---------------------------------------- Page Break ---------------------------------------- 5 ARGUMENT The court of appeals correctly concluded that the. district court did not abuse its discretion in admitting Angel's hearsay statement because petitioner opened the door to such testimony by , creating a false or misleading impression on the issue. Further review by this Court is not warranted. Petitioner argues (Pet. 7-9) that the court of appeals' decision conflicts with the decisions of other courts of appeals that have applied the doctrine of "curative admissibility," which permits a party's introduction of otherwise inadmissible evidence to cure the other party's introduction of inadmissible evidence. See United States v. Forrester, 60 F.3d 52, 60 (2d Cir. 1995), Government of the Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir. 1993), United States v. Brown, 921 F.2d 1304, 1307-1308 (D.C. Cir. 1990), United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988), cert. denied, 489 U.S. 1084 (1989). The decision below, however, did not purport to apply the doctrine of "curative admissibility" in this case. Rather, the court of appeals affirmed the admission of Angel's hearsay statement in order to clarify the false impression created by defense counsel's cross examination of Agent Proctor regarding Angel's relationship with petitioner. Pet. App. 5. The court of ___________________(footnotes) 1. The court of appeals also rejected petitioner's arguments based on constructive amendment of the indictment, ineffective assistance of counsel, a warrantless search of petitioner, and I sufficiency of the evidence. Pet. App. 3-6. Petitioner does not seek further review of those issues in this Court. ---------------------------------------- Page Break ---------------------------------------- 6 appeals' ruling thus is consistent with the decisions of many courts of appeals, including those of the Second, Ninth, and D.C. Circuits, in which one party has been held to have opened the door" to otherwise inadmissible evidence by creating confusion or leaving a false impression on an issue, notwithstanding the fact that the initial evidence is itself admissible. See, e.g., United States v. Haywood, 70 F.3d 507, 510 (7th Cir. 1995), cert. denied, 117 S. Ct. 263 (1996); United States v. Catano, 65 F.3d 219, 225-226 (1st Cir. 1995); United States v. Blackman, 897 F.2d 309, 317-318 (8th Cir. 1990); United States v. Prince, 883 F.2d 953, 961-962 (11th Cir. 1989); United States v. Beltran-Rios, 878 F.2d 1208, 1212 (9th Cir. 1989); United States v. Martinez, 775 F.2d. 31, 37-38 (2d Cir. 1985); United States v. Lewis, 701 F.2d 972, 974-975 (D.C. Cir. 1983) . Cf. 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 12, at 47-48 (2d ed. 1994) ("courts that consider the propriety of admitting counterproof seldom address the question whether the initial evidence was itself excludable") . In any event, even if the trial court erred in admitting the hearsay evidence, any such error was harmless. The substance of the challenged hearsay statement -- that Angel previously I purchased methamphetamine from petitioner -- already had been elicited by defense counsel on cross-examination of Agent Proctor: Q: The first conversation that went on, on August 18, is there any mention of drugs in there? Did they [Angel and petitioner] mention anything about methamphetamine? ---------------------------------------- Page Break ---------------------------------------- 7 A: On August 18, I did a formal debriefing of Michael Angels meaning I brought him into the office and sat him down and asked him a series of questions. And at that time -- formerly, he had said [p]etitioner would be a distributor. Pet. App. 115 (emphasis added). Thus , there was nothing new or unfairly prejudicial about the agent's similar testimony on redirect examination. Moreover, the evidence of petitioner's guilt, independent of the hearsay testimony, was compelling. Indeed, in rejecting petitioner's challenge to the sufficiency of the evidence, the court of appeals cataloged the evidence against petitioner without mention of the hearsay testimony: The government proved that its informant had called [petitioner] and sent [petitioner] money three times. Each time, a package followed, in accordance with the terms of "the conversations. All three shipments contained methamphetamine. The government also demonstrated that [petitioner] himself signed for envelopes containing the money to pay for the goods discussed in the first two telephone calls. All three packages of methamphetamine were addressed in a handwriting that matched handwriting in an address book found in [petitioner's] residence. The third envelope also contained an Auto Parts Club newspaper in addition to the methamphetamine, and [petitioner] is an auto mechanic. During a search of [petitioner's] residence, the government seized evidence including a triple beam scale, a pocket scale with residue similar to methamphetamine, and a baggie of methamphetamine. Pet. App . 6.- Accordingly, even if the Court were to agree with petitioner on the issue on which he seeks certiorari -- that he did not open the door to the admission of Angel's hearsay statement -- the outcome of this case would not be affected. See United States v. Brown, 921 F.2d at 1308 (improper admission of hearsay evidence under "curative admissibility" doctrine harmless ---------------------------------------- Page Break ---------------------------------------- 8 in light of considerable evidence of defendant's guilt) .2 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEMETRA LAMBROS Attorney AUGUST 1997 2 Petitioner's contention (Pet. 10-12) that the admission of the hearsay evidence violated his right of confrontation under the Sixth Amendment is equally unavailing. He concedes (id. at 11) that there is no constitutional violation where a defendant "opens the door" to otherwise inadmissible hearsay by himself introducing inadmissible evidence. He cites no authority -- and we are aware of none -- which would alter that conclusion where the door was opened by testimony which, though admissible, was misleading. Indeed, the same principles of waiver and estoppel would apply where the defendant, through his own actions, creates a false impression on an issue to his advantage. In any event, as noted above, even if the testimony in this case were "admitted in error, the error would be harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 680-683 (1986). Petitioner finally argues (Pet. 12) that the decision below "requires courts to determine whether defendants have misled the jury. " Evaluating evidence for its potential to mislead or confuse a jury, however, is precisely" what trial courts do. See e.g, Fed. R. Evid. 403 (vesting in district court broad discretion to evaluate evidence for its potential to create confusion or mislead jury) ; Hamling United States, 418 U.S. 87, 127 (1973) (district court "retains considerable latitude * * * in requiring that [evidence] brought to the jury's attention * * * be done so in a manner least likely to confuse that body") .