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May 1, 1969


The opinion of the court was delivered by: Marovitz, District Judge.


Petition for Writ of Habeas Corpus

This is a petition for writ of habeas corpus, 28 U.S.C. § 2255, wherein petitioner seeks to have vacated a 1964 conviction for conspiracy to violate the narcotics law, 21 U.S.C. § 174. Petitioner was tried before a jury, convicted, and sentenced to twelve years imprisonment. Judgment was affirmed on appeal, United States v. Owens, 346 F.2d 329 (7th Cir. 1965), cert. denied 382 U.S. 878, 86 S.Ct. 163, 15 L.Ed.2d 119 (1965). Petitioner is presently incarcerated in the Federal Penitentiary, Terre Haute, Indiana.

Petitioner has already filed a petition to vacate his conviction alleging that he was mentally incompetent during his trial because of his use of drugs and that certain statements which were admitted at trial were made involuntarily and should not have been admitted. Judge Decker rejected both contentions. Howell v. United States, 282 F. Supp. 246 (N.D.Ill. 1968). An appeal is presently pending from that decision.

In the instant action, petitioner contends that the recent decision of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), made retroactive by Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), sets forth the rule that in a joint trial any out of court statement of an alleged co-conspirator which implicates another co-conspirator is inadmissible even if a cautionary instruction would be given by the court. He suggests that the guarantee of the Sixth Amendment to the United States Constitution that an accused "be confronted with the witnesses against him," as expounded in Bruton, was denied to him at his trial.

The Bruton decision, however, is not as expansive as petitioner would have us believe. In overruling Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1956), Bruton held that, at a joint trial, the introduction into evidence of a co-defendant's incriminating extrajudicial statements may violate a defendant's right to confrontation and cross-examination. Given the particular factual circumstances of the case, the Supreme Court concluded that the cautionary instructions given by the judge to the jury with respect to disregarding the implicating statements were ineffective and could not overcome the great risk that defendant's case would be prejudiced because the jury would or could not follow the instructions. The risk of prejudice was so substantial that the Court held the defendant was denied his right to confrontation. 391 U.S. 123, 127-128, 88 S.Ct. 1620.

  "There is not before us * * * any recognized
  exception to the hearsay rule insofar as
  petitioner is concerned and we intimate no view
  whatever that such exceptions necessarily raise
  questions under the Confrontation Clause."

Secondly, it recognized that in some cases the error of admitting inadmissible hearsay will not be reversible error because a court's limiting instructions will be easily understood and followed. Id. at 135, 88 S.Ct. 1620. See, e.g., Frazier v. Cupp. 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (April 22, 1969); United States v. Levinson, 405 F.2d 971, 988 (6th Cir. 1968); United States v. Catino, 403 F.2d 491, 496 (2d Cir. 1968).

It is the first of these two points which distinguishes petitioner's case from the Bruton decision. Petitioner was indicted on a conspiracy charge. Under the general rule, one co-conspirator's declarations in furtherance of the conspiracy are admissible against his co-conspirators. Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Krulewitch v. United States, 336 U.S. 440, 444, 69 S.Ct. 716, 93 L.Ed. 790 (1952); Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 116-117, 68 S.Ct. 947, 82 L.Ed. 1245 (1948); United States v. United States Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Evans v. Dutton, 400 F.2d 826, 831 (5th Cir. 1968); United States v. Battaglia, 394 F.2d 304, 313 (7th Cir. 1968); United States v. Sapperstein, 312 F.2d 694, 698 (4th Cir. 1963). This hearsay exception has been accepted for a long while. Clune v. United States, 159 U.S. 590, 593, 16 S.Ct. 125, 40 L.Ed. 269 (1895); Mattox v. United States, 156 U.S. 237, 243-244, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Logan v. United States, 144 U.S. 263, 308-309, 12 S.Ct. 617, 36 L.Ed. 429 (1892); United States v. Gooding, 25 U.S. (12 Wheat.) 460, 468-470, 6 L.Ed. 693 (1827). Consequently, and in contrast to the statements which were admitted in Bruton, the hearsay statements in the instant case were, under the traditional rules of evidence, admissible against petitioner.

The Supreme Court in Bruton gave no indication, and we think none is warranted, that evidence admitted under a hearsay exception necessarily violates the Sixth Amendment confrontation clause. While the right to confrontation is framed as an absolute, the right has always been seen in its historical relation with and as an integral aspect of the general rule against the admission of hearsay evidence. McCormick, Evidence §§ 19, 223-25, 231 (1954); 5 Wigmore, Evidence §§ 1364-71, 1395-1418 (3d ed. 1940) (hereafter Wigmore). Semerjian, The Right of Confrontation, 55 A.B.A.J. 152 (1969); Comment, Federal Confrontation: A Not Very Clear Say on Hearsay, 13 U.C.L.A.L.Rev. 366, 372 (1966); Comment, Preserving the Right to Confrontation — A New Approach to Hearsay Evidence in Criminal Trials, 113 U. Pa.L.Rev. 741, 746 (1965).

Historically indistinguishable from and the essence of the right of confrontation is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 418-419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1964); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1964); 5 Wigmore § 1395. Now because "(t)he right to subject opposing testimony to cross-examination is the right to have the Hearsay rule enforced," and because the hearsay rule admits of exceptions, Professor Wigmore concludes that

  "(t)he rule sanctioned by the Constitution is the
  Hearsay rule as to cross-examination, with all
  the exceptions that may legitimately be found,
  developed, or created therein. Id. § 1397.

While it has been said that "the Supreme Court has never fully articulated federal standards required by the confrontation clause in a hearsay evidence context," Comment, supra, 113 U.Pa.L. Rev. 741, 744, it has, on several occasions, more than alluded to the relationship. In Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934), Justice Cardozo recognized that "the privilege of confrontation at (no) time (has) been without recognized exceptions * * *." Regarding the right and these recognized exceptions, the purpose of the confrontation clause of the Sixth Amendment, "this court often has said, is to continue and preserve that right, and not to * * * disturb the exceptions." Salinger v. United States, 272 U.S. 542, 548, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926). Specifically discussing the conspiracy ...

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