United States District Court, Northern District of Illinois, E.D
May 1, 1969
EUGENE HOWELL, PETITIONER,
UNITED STATES, RESPONDENT.
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
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.
The Bruton decision then, does not say that all hearsay is
inadmissible as to all co-conspirators. Rather, it hinges on
two key points: one, that the incriminating hearsay statement
"was clearly inadmissable against (defendant) under
traditional rules of evidence" and two, that the trial court's
instructions could not overcome the risk of prejudice to
defendant. 391 U.S. at 128, 88 S.Ct. at 1624. The court
"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
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
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
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 exception to the hearsay rule, the Supreme Court, in
Delaney v. United States, 263 U.S. 586
, 590, 44 S.Ct. 206, 68
L.Ed. 462 (1924), held that the conspiracy exception did not
deny a defendant his right of confrontation.
Thus, because the Court in Bruton explicitly disclaimed any
adverse inference as to the viability of recognized exceptions
to the hearsay rule under the confrontation clause, because the
Court has always recognized the admissibility of some hearsay
exceptions, Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065,
13 L.Ed.2d 923 (1964), because the conspiracy exception is a
well established rule often invoked by the Court, and because
the Court has, at least on one occasion, held that that
specific hearsay exception is not in conflict with the
confrontation clause, we must reject petitioner's claim that an
implicating hearsay of a co-conspirator is inadmissible.
Petitioner also attacks his conviction by asserting that his
right of confrontation was denied in that at the time each of
the out of court statements was alleged to have been made,
petitioner had, as a matter of law, withdrawn from the
conspiracy. The indictment in this case charged that the
conspiracy started on November 1, 1962, and continued to May
5, 1963. On February 14, 1963, petitioner and a
co-conspirator, Robert Owens, were arrested by Pennsylvania
state police for a traffic violation on the Pennsylvania
Turnpike. Eventually, heroin was discovered in petitioner's
possession, and he was charged by state authorities with
illegal possession of narcotics. Petitioner ultimately pleaded
guilty to the state charge, was fined, and given probation. He
now contends that this state arrest constituted a withdrawal
from the federal crime of conspiracy and that his statements
following his arrest and the statements which co-conspirators
made with reference to the arrest of petitioner and Owens were
While the law is clear that an "arrest or incarceration
may constitute a withdrawal from a conspiracy, it does not
follow that in every instance it must." United States v.
Agueci, 310 F.2d 817, 839 (2nd Cir. 1962), cert. denied
Guippone v. United States, 372 U.S. 959, 83 S.Ct. 1013, 10
L.Ed.2d 11 (1962). In most of the cases to which petitioner
refers as examples of situations wherein an arrest did
constitute a withdrawal from a conspiracy, the arrest was for
the crime of conspiracy. Gay v. United States, 322 F.2d 208,
209 (10th Cir. 1963); Cleaver v. United States, 238 F.2d 766,
768 (10th Cir. 1956); United States v. Cohen, 197 F.2d 26 (3d
Cir. 1952). However, in the instant case, as in United States
v. Agueci, 310 F.2d 817, 838 (2nd Cir. 1962), the arrest which
is said to have constituted withdrawal from the conspiracy was
not for the crime of conspiracy, but for another violation. As
possession of narcotics and conspiracy to violate the narcotics
statutes are separate and distinct crimes, Id. at 828, an
arrest for violation of a state narcotics possession charge
does not logically constitute withdrawal from a conspiracy in
violation of federal law. Thus, it cannot be said that
petitioner withdrew from the conspiracy until he was arrested
in early May, 1963, in Chicago, Illinois, on the federal
Finally, under the standard phrasing of the co-conspiracy
exception, to be admissible,
the incriminating statements must be in furtherance of the
conspiracy. Commentators now recognize that the furtherance
requirement is rarely literally applied to restrict admissible
evidence to those statements which were made to advance the
conspiracy, but is generally invoked to include any statement
of a co-conspirator which is relevant to the conspiracy and is
made during the course of the conspiracy. Comment, The Hearsay
Exception for Co-conspirators' Declarations, 25 U.C.L. Rev.
530, 531 n. 5 (1958). The Uniform Rules of Evidence, Rule
63(9)(b) adopts such a position. The statements about which
petitioner complains were made while the conspiracy plan was
still in existence. Even under a literal view of the
furtherance doctrine, it is clear that the incriminating
statements made by co-conspirators were in furtherance of the
conspiracy in that they were made to explain delays in
consummating transactions or to lend moral support to a
potential seller. The statements were admissible as to
The petition for writ of habeas corpus is denied.
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