UNITED STATES OF AMERICA, PETITIONER V. JAMES JOSEPH OWENS

   No. 86-877

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Reply Memorandum for the United States

   1. The court of appeals held that respondent's rights under the
Confrontation Clause were violated by the in-court testimony of the
assault victim, John Foster.  Although Foster testified at length at
trial, and although respondent's cross-examination of Foster was not
restricted by the trial court, the court of appeals found that
Foster's partial memory loss prevented him from being adequately
cross-examined.  As we explained in our petition (at 10-17), the
court's ruling raises issues of great practical importance that have
been identified but never resolved by this Court.  In addition, the
Ninth Circuit's opinion creates a conflict among the circuits
concerning the constitutional significance, if any, of a witness's
memory loss.  Our submission is that a witness's memory loss has no
Sixth Amendment consequence and that his physical presence at trial
satisfies the Confrontation Clause as long as (i) he does not assert
his Fifth Amendment privilege or otherwise refuse to testify, (ii) he
is capable of understanding the proceedings, and (iii) the scope of
cross-examination is not improperly restricted by the trial court.

   Respondent's principal contention in opposing review (Br. in Opp.
1, 4, 20) is that the court of appeals' decision is merely a routine
application of this Court's decisions in Ohio v. Roberts, 448 U.S. 56
(1980), and Dutton v. Evans, 400 U.S. 74 (1970).  That contention is
without merit.

   In both Roberts and Dutton, the issue was whether out-of-court
statements were sufficiently reliable to be admissible in the absence
of any cross-examination of the declarant at trial.  In Roberts, the
Court held that the admission of preliminary hearing testimony as a
substitute for live testimony does not offend the Confrontation Clause
if the evidence is reliable and the declarant is unavailable.  The
issue arose only because the declarant could not be found at the time
of trial (448 U.S. at 60, 66).  Similarly, in Dutton the Court held
that under the circumstances of that case, the admission of an
accomplice's out-of-court statement implicating the defendant did not
violate the Confrontation Clause.  The plurality reasoned that the
accomplice's statement was sufficiently reliable to be admitted in the
absence of any cross-examination.  /1/ As in Roberts, the declarant
was not present at trial (see 400 U.S. at 88 n.19).

   The issue in the present case, by contrast, is whether the
Confrontation Clause is violated when the declarant is cross-examined
at trial but acknowledges a partial memory loss.  Neither Roberts nor
Dutton purported to decide this very different question.  /2/
Moreover, the court of appeals itself indicated that the Sixth
Amendment issue raised in the case had been identified but never
resolved by the Supreme Court (Pet. App. 12a).  And despite
respondent's claim that the court of appeals "merely applied
straightforward principles of law established by this Court" (Br. in
Opp. 11), he fails to cite a single case from this Court or any other
court of appeals holding that the Confrontation Court is violated by
the in-court testimony of a witness who has suffered a partial memory
loss.

   Respondent also invokes Roberts in making the erroneous argument
(Br. in Opp. 12) that the conflict among the circuits that we
identified in our petition (at 13-16) is not a live one.  Respondent
concedes (Br. in Opp. 12, 17) that the Third Circuit, in United States
ex rel. Thomas v. Cuyler, 548 F.2d 460 (1977), endorsed Justice
Harlan's view in California v. Green, 399 U.S. 149, 188 (1970)
(concurring opinion), that memory loss has no Sixth Amendment
consequence, and that the court of appeals in the present case
explicitly rejected that view.  /3/ He contends (Br. in Opp. 12-13),
however, that Cuyler was effectively overruled by Roberts.  /4/
Specifically, he relies (Br. in Opp. 13) on a footnote in Roberts (448
U.S. at 66-68 n.9) that discusses Justice Harlan's concurring opinions
in Green and Dutton.  As we explained in our petition (at 14 n.4),
however, that footnote does not constitute a rejection of Justice
Harlan's approach to the role of a witness's memory loss in
Confrontation Clause analysis.  Rather, the Court was simply noting
that it has not adopted Justice Harlan's general thesis that the
"Confrontation Clause requires only that (the) prosecution produce
available witnesses" (448 U.S. at 67 n.9).  Indeed, in Delaware v.
Fensterer, No. 85-214 (Nov. 4, 1985), a post-Roberts case, the Court
(slip op. 6) explicitly left open the question whether a witness's
memory loss could ever amount to a Confrontation Clause violation.  In
short, nothing in Roberts casts doubt on the validity of the reasoning
in Cuyler.  /5/

   Respondent further contends (Br. in Opp. 14) that in Dutton Justice
Harlan himself abandoned his approach in Green on the issue of memory
loss.  But as we explained in our petition (at 13 n.4), Justice Harlan
indicated in Dutton (400 U.S. at 95) that he was retreating from his
suggestion in Green that the government has an obligation to produce
witnesses who are reasonably available.  This revised view -- which
reduced the government's obligations under the Confrontation Clause --
can in no way be read as a repudiation by Justice Harlan of his
position in Green that a witness's memory loss has no Sixth Amendment
significance.

   Respondent is similarly incorrect in asserting (Br. in Opp. 19-20)
that this Court's decision in Delaware v. Fensterer, supra, has no
bearing on the issues presented here.  Respondent claims (Br. in Opp.
19) that Fensterer is "premised" on the fact that no out-of-court
satatement was involved, and that the case therefore is limited by its
terms to that context.  But as we noted in our petition (at 12), both
Fensterer (slip op. 6) and Green (399 U.S. at 168-169) raised but
explicitly did not reach the question whether an out-of-court
statement can be admitted, consistent with the Confrontation Clause,
when the declarant asserts a total or partial memory loss.  /6/ The
present case gives the Court the opportunity to resolve that important
question.  /7/

   In sum, despite respondent's contention that the court of appeals
simply applied well settled principles to the facts of this case, we
submit that the court of appeals has given the Confrontation Clause a
meaning that it was never intended to have.  Review by this Court is
necessary to correct the Ninth Circuit's erroneous Sixth Amendment
analysis, to answer the question left open in Fensterer and Green, and
to resolve the conflict among the circuits.

   2. With respect to the second issue presented in our petition --
namely, the court's ruling that Foster's testimony violated Fed. R.
Evid. 801(d)(1)(C) -- respondent does not seriously dispute our
submission (Pet. 19-20) that the court's interpretation is contrary to
the literal language of the rule.  /8/ Rather, respondent contends
(Br. in Opp. 21) that the government has adopted "a very narrow
reading of the legislative history." But as we noted in our petition
(at 21-22), and as prior cases from other circuits have indicated (see
ibid. (citing cases) ), the purpose of Rule 801(d)(1)(C) is to permit
out-of-court identifications when the declarant is present in court,
even when he has suffered a memory loss concerning the underlying
events.  The court of appeals' decision frustrates that legislative
intent.

   For the foregoing reasons and those given in the petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted.

   CHARLES FRIED

      Solicitor General

   JANUARY 1987

   /1/ Justice Harlan concurred in the result.  Viewing the case as
involving due process, not the Confrontation Clause, he concluded that
there was no due process violation.  400 U.S. at 93-100.

   /2/ Indeed, in Roberts, the Court summarized its holding by stating
(448 U.S. at 66 (emphasis added)) that "when a hearsay declarant is
not present for cross-examination at trial, the Confrontation Clause
normally requires a showing that he is unavailable.  Even then, his
statement is admissible only if it bears adequate 'indicia of
reliability.'"

   /3/ Respondent does suggest (Br. in Opp. 13 n.10) that a subsequent
Third Circuit case, United States v. Bailey, 581 F.2d 341, 350-351 &
n.15 (1978), questioned the validity of Cuyler.  That suggestion is
clearly wrong.  The court in Bailey, after noting that its resolution
of the case avoided difficult Confrontation Clause issues arising from
a lack of cross-examination, cited Cuyler and several other cases in a
footnote, preceded only by the word "See." The court's citation of
Cuyler can in no way be read to suggest that the validity of that case
was being questioned.

   /4/ Respondent (Br. in Opp. 13 n.10) similarly dismisses as a
pre-Roberts case the Colorado Supreme Court's adoption of Justice
Harlan's approach in Gree (People v. Pepper, 193 Colo. 505, 568 P. 2d
446 (1977) (cited at Pet. 14)).  Respondent does not acknowledge the
decision in Robinson v. State, 102 Wis. 2d 343, 353, 306 N.W. 2d 668,
673 (1981) (cited at Pet. 14), a post-Roberts case, in which the
Wisconsin Supreme Court discussed with approval Justice Harlan's
approach to memory loss in Green and indicated that it "might well be
persuaded to follow its reasoning in the appropriate case."

   /5/ In addition to Cuyler, we cited several other cases, decided
both before and after Roberts, in which the reasoning of the courts is
at odds with that of the Ninth Circuit in the present case (Pet.
14-16).  Two of the principal pre-Roberts cases are dismissed by
respondent on the basis of that chronological fact (Br. in Opp. 14).
As noted above, however, respondent's reliance on Roberts is
misplaced.  Respondent also contends that, apart from Cuyler, all the
cases cited in our petition are "in accord (with) the basic legal
principles at stake" (Br. in Opp. 16).  In fact, however, the
reasoning in those decisions is in accord with the dissent in the
present case (see Pet. App. 29a), not with the majority.  The majority
found a constitutional violation by erroneously focusing on the
quantity and quality of "information" concerning the assault that
Foster was able to provide (see Pet. App. 16a).  By contrast, in the
cases cited in the petition, the courts found no Sixth Amendment
violation, notwithstanding severe (and in some cases total) memory
loss concerning the relevant facts, because the witnesses were subject
to cross-examination and the juries therefore were able to evaluate
their credibility.  See, e.g., United States v. DiCaro, 772 F.2d 1314,
1327 (7th Cir, 1985) (holding that despite witness's severe memory
lapse, there was no denial of the right to confrontation because the
witness was "questioned extensively on the stand concerning both his
claim of amnesia and other matters relevant to the credibility of his
prior grand jury testimony"), cert. denied, No. 85-1007 (Mar. 24,
1986);  Vogel v. Percy, 691 F.2d 843, 846 (7th Cir. 1982) (noting that
"(a)though petitioner's cross-examination * * * might have been more
fruitful if (the witness) had not suffered a memory lapse as to his
prior inconsistent statement, the petitioner was afforded adequate
opportunity to test (his) lack of recall").  See also Pet. 14-15
(discussing cases).

   /6/ As indicated in our petition (at 11), we believe that the
reasoning in Fensterer should apply in the present case.  In our view,
there is no analytical distinction, for confrontation purposes,
between the admission of the results of an out-of-court scientific
analysis, when the witness has forgotten how he derived those results,
and the admission of an out-of-court identification, when the witness
does not fully remember the underlying incident.  The critical factor
in both Fensterer and the present case is that the defense was able to
"probe and expose" the witness's memory loss and to "call() to the
attention of the factfinder the reasons for giving scant weight to the
witness' testimony" (slip op. 6-7).

   /7/ Respondent makes several additional claims, all of which lack
merit.  First, while respondent does not deny that Foster had a
detailed memory of the out-of-court identification and of the events
leading up to the assault, he contends (Br. in Opp. 5) that Foster's
only memory of the assault itself was that he entered the TV room, was
struck on the head, and looked down and saw blood.  Respondent
overlooks several important facts.  For instance, Foster recalled that
he injured his finger by jamming it into his assailant's chest (2 Tr.
100), a fact that was confirmed by the medical evidence (id. at 135).
Foster also recalled that the weapon used to strike him was a pipe
(id. at 90-91).  Respondent claims that we misstated the record on the
latter point (Br. in Opp. 5 n.3), but the testimony confirms the
accuracy of our description (2 Tr. 90-91):

      Q. (By the prosecutor):  Do you remember today, as you think
      back to April 12 of 1982, what might have been used to hit you
      in the head?  A. (By Foster):  Thinking back, it did have to be
      a pipe.  That is about the right size.  I have seen so many of
      them around, picked up so many that it seems to me that that is
      what it would be.

   Second, respondent makes the erroneous assertion (Br. in Opp. 3 n.2
(citing Pet. 17 n.6)) that we have conceded that without Foster's
testimony the government's case was weak.  We made no such concession.
 The point we were making in the footnote cited by respondent was that
under the case law, respondent should have been barred from asserting
a denial of his confrontation rights, since he caused the memory loss
about which he now complains.  We noted that some courts require a
preponderance of evidence on causation, while other courts require
clear and convincing evidence.  Far from conceding the weakness of our
case, we simply pointed out that under either standard, respondent
should have been prohibited from asserting a confrontation violation.
Pet. 17-18 n.6.  In any event, if respondent is of the view that our
petition conceded the weakness of the government's evidence at trial,
then we cannot understand why he also criticizes us (Br. in Opp. 2-3)
for purportedly implying that our evidence was strong.

   Third, respondent dismisses as "absurd" (Br. in Opp. 17) our
concern (Pet. 10, 18-19) that the Ninth Circuit's opinion may invite
constitutional challenges in cases involving the past recollection
recorded exception to the hearsay rule.  But as we indicated (see Pet.
18-19 (citing cases)), defendants have frequently tried to make such
arguments in the past.  The Ninth Circuit's holding that a witness's
memory loss has constitutional significance may breathe new life into
such arguments.

   /8/ As we explained (Pet. 20), the rule requires only that the
witness be subject to cross-examination "concerning the statement,"
not concerning "the subject matter of (the) statement" (compare Fed.
R. Evid. 804(a)).