UNITED STATES OF AMERICA, PETITIONER V. JOSEPH INADI

   No. 84-1580

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Third Circuit

   Reply Brief for the United States

            TABLE OF CONTENTS
   A. The Historical Evidence
   B. The Roberts Dictum
   C. Costs and Benefits of a Requirement That
      Unavailability be Shown
   Conclusion

                                  I.

   Respondent has not answered any of the principal points made in our
opening brief.  Respondent has not disputed any of the historical
facts that, in our judgment, lead to the conclusion that the
Confrontation Clause was not intended as a general regulation of the
admission of hearsay.  Respondent has interpreted this Court's
Confrontation Clause cases in a way that would revolutionize the law
of evidence that we do not believe this Court could have intended.
And, perhaps most important, respondent has failed to explain what
practical benefit defendants would derive from the rule adopted by the
court of appeals.  In particular, respondent's brief does not contain
even a hint of an answer to the common sense question that jumps out
from this case:  If respondent really wanted to question the
co-conspirator/declarant John Lazaro, whose whereabouts were known to
the defense, why didn't respondent subpoena him?  Respondent's brief
is written as if trial subpoenas were unknown and the Compulsory
Process Clause did not exist.

                      A.  The Historical Evidence

   In our opening brief (at 12-24), we reviewed the history of the
confrontation right, the hearsay rule, and the framing and adoption of
the Sixth Amendment, and we made the following points:

         1. The right to confrontation grew up to prevent the practice
      of trial by affidavit or deposition.  There is no evidence that
      this right was intended generally to regulate the admission of
      hearsay.

         2. Many exceptions to the hearsay rule were recognized before
      the adoption of the Sixth Amendment, and the co-conspirator rule
      developed at approximately the same time as the adoption of the
      Bill of Rights.

         3. There is no evidence that the framers of the Sixth
      Amendment intended to alter or extend the right to confrontation
      as it was then commonly understood;  in particular, there is no
      evidence that the framers intended the Confrontation Clause to
      abrogate hearsay exceptions or generally to regulate hearsay.

         4. For nearly 200 years, it has been accepted that certain
      out-of-court statements, including co-conspirator statements,
      are admissible -- if they satisfy various other, carefully drawn
      conditions -- whether or not the declarant is available to
      testify.

   Respondent's brief contains no historical evidence refuting any of
these points.  This is obviously revealing because we believe we
believe that these points strongly suggest the conclusion that the
Sixth Amendment was not intended either to bar the admission of all
hearsay or to serve as a general standard for the regulation of
hearsay.  Had the framers of the Sixth Amendment intended to alter the
confrontation right so as to achieve such results, there would surely
have been some discussion or debate.  Moreover, if the framers had
harbored such an intention, it seems most unlikely that this would
have completely escaped the notice of or been ignored by the judges
and practitioners of the era and have come to light only in the last
few years.  See United States v. Ross, 456 U.S. 798, 819 (1982) ("The
fact that no such argument was even made illuminates the profession's
understanding of the scope of the (right in question).").

   Although respondent discusses (Br. 9-14) the historical materials,
it is difficult to tell what he makes of them.  He points (Br. 9-10)
to the fact that Hale and Blackstone did not expressly reject
application of the right to confrontation to regulation of the
admiission of hearsay.  However, the most plausible conclusion to be
drawn from this omission is not that these authorities endorsed the
proposition that the confrontation right generally regulates hearsay
or even that they entertained doubts on the subject.  Rather, the most
plausible conclusion -- indeed, we would say the only plausible
conclusion -- is that such an interpretation of the confrontation
right did not even occur to them.  After all, both the confrontation
right and the admission of hearsay pursuant to exceptions to the
hearsay rule were well recognized at the time, and it was the practice
then, as it has been ever since, to admit certain types of hearsay
without inquiring whether they met special requirements stemming from
the confrontation right.

   Respondent suggests (Br. 11) that it is impossible to determine
what the framers of the Sixth Amendment meant by the right to
confrontation.  For reasons already touched upon, however, this
argument does not support the decision below.  It is true, as we noted
in our opening brief (at 17-18), that the Confrontation Clause
produced little discussion or debate in Congress and in the state
legislatures during ratification.  As a result, it is probably not
possible to discern the intent of the framers on some fine points of
Confrontation Clause jurisprudence.  But with respect to the broad
question implicated in the present case -- whether the Confrontation
Clause was meant as a general standard for regulating hearsay -- the
silence of the framers can indicate only one answer, for it simply is
not credible that the framers dramatically changed the settled meaning
of the confrontation right without leaving any hint in the historical
record.  Thus, even were respondent correct that we have shown nothing
more than that the dog did not bark, one need hardly be a Sherlock
Holmes to find meaning in that silence.  /1/

                        B.  The Roberts Dictum

   In our opening brief, we argued that this Court's Confrontation
Clause cases disclose a three-part approach to the admission of
hearsay.  First, the Court has closely regulated the admission of
those types of hearsay -- chiefly former testimony -- that are
analogous to affidavits and depositions, the forms of proof that the
confrontation right was historically intended to restrict.  Second,
the Court has treated evidence falling within settled and tested
exceptions to the hearsay rule as presumptively valid.  Third, as is
illustrated by Dutton v. Evans, 400 U.S. 74 (1970), which involved a
state variation of the traditional co-conspirator rule, the Court has
held out the possibility of more exacting scrutiny of novel departures
from traditional hearsay principles.

   Disagreeing with this analysis, respondent instead reads Ohio v.
Roberts, 448 U.S. 56 (1980), and other cases involving the admission
of former testimony as articulating Confrontation Clause principles
that apply to all hearsay exceptions and not just the exception for
former testimony (see Resp. Br. 18-28).  Respondent expresses
amazement (Br. 26-27) at our argument that this Court's cases dealing
with the admission of former testimony are -- of all things -- about
the admission of former testimony.  Clearly respondent's position is
contrary to basic principles regarding the interpretation of judicial
opinions.  Presumably respondent would agree that the holdings of the
former testimony cases apply only to the admission of former
testimony.  Thus, respondent's position must be that dictum in these
cases was intended to settle the application of the Confrontation
Clause, not just to the single exception for former testimony, but to
the more than 30 commonly recognized exemptions from and exceptions to
the hearsay rule (see Fed. R. Evid. 801, 803, 804).  However, it seems
to us completely implausible to suggest that this Court announced
Confrontation Clause principles of such general applicability and
importance based upon an examination of a single hearsay exception,
which, not coincidentally, happens to be the one that most precisely
conforms to the purpose of the Confrontation Clause.

   In the end, the analysis espoused by respondent and the court of
appeals rests almost entirely upon the dictum from Ohio v. Roberts,
488 U.S. at 65, that "(i)n the usual case * * * , the prosecution must
either produce, or demonstrate the unavilability of, the declarant
whose statement it wishes to use against the defendant." Respondent
reads this dictum as the final word on the meaning of the
Confrontation Clause with regard to the availability of hearsay
declarants.  Respondent states (Br. 20):  "(b)y terms, the Roberts
rule of unavailability applies to all out-of-court declarations,
whether or not they fall within traditional hearsay exceptions."
Respondent reiterates (Br. 28):  "(The Roberts) rule of necessity
applies to all out-of-court declarations." The invalidity of this
reading of Roberts is illustrated by the conclusion to which it leads,
namely, that the 23 specific hearsay exceptions in Fed. R. Evid. 803,
none of which requires proof the the declarant's unavailability,
cannot constitutionally be used by the prosecution in a criminal case.
 As we noted in our opening brief (at 26-27), we do not believe that
the Roberts court could have intended to embrace such a revolutionary
proposition in dictum, without briefing or argument directed to this
broad question, and without careful elaboration in its opinion.

   Moreover, reading a requirement of unavailability into the Rule 803
exceptions would be nonsensical.  Those exceptions generally apply to
types of out-of-court statements that, like co-conspirator
declarations, have probative value quite independent of any testimony
that the declarant might later give in court.  For example, an excited
utterance -- "He hit the pedestrial without even braking." --
obviously has probative significance quite different from any
subsequent testimony given by the declarant at a time when the
potential consequences of such a statement may influence, or may be
thought to influence, his story.  To take another, exceptionally
important example, live testimony is patently no substitute for
regularly kept business records (Fed. R. Evid. 803 (6)).

   Although respondent acknowledges (Br. 20) that "(b)y its terms, the
Roberts rule of unavailability applies to all out-of-court
declarations," respondent understandably draws back from the plain
implication of this proposition, i.e., that Rule 803 is
unconstitutional in substantial part.  Respondent suggests (see Br. 20
n.7, 32-35) that proof of unavailability may not be necessary for some
or all of the Rule 803 exceptions because hearsay falling within those
exceptions has been judged to be particularly reliable.  By contrast,
respondent maintains (see Br. 14-18), the co-conspirator rule is not
based on a judgment about reliability but on principles of agency.  In
our view, respondent has substantially oversimplified the basis for
the co-conspirator rule, /2/ but in any event it is difficult to see
how respondent's distinction can be squared with the literal reading
of the Roberts dictum upon which respondent's entire argument -- and
the decision of the court of appeals -- depends.  The Roberts dictum
states (448 U.S. at 65) that "(t)he Confrontation Clause operated in
two separate ways to restrict the range of admissible hearsay." After
making the previously discussed comment about unavailability, the
Court observed (ibid.):  "The second aspect (i.e., reliability)
operates once a witness is shown to be unavailable." Clearly, it is a
radical departure from this language to collapse these two
requirements into one, as respondent suggests might be done to salvage
Rule 803.  Thus, unless the Roberts dictum is read, as we believe it
should be, to refer primarily to the hearsay exception at issue in
that case and in the precedents on which the Roberts court relied
(i.e., the exception for former testimony), that dictum must lead to
results that the Court cannot possibly have intended.

   In addition, respondent's explanation for the co-conspirator
exception -- that it is based solely on principles of agency --
actually undermines the result reached by the court of appeals.  While
the co-conspirator may or may not remain allied with the defendant, as
his former principal the defendant is in a poor position to insist
that the prosec ution produce the declarant rather than the defense.

   In substantial part, respondent's brief appears to be an attack
upon the co-conspirator rule on the ground that it allows the
admission of unreliable hearsay.  However, the question in this case
is not whether it would be advisable to reformulate the federal
co-conspirator rule.  We disagree with respondent's assessment of the
rule, but in any event his argument would be more appropirately
directed to Congress or the Advisory Committee on the Rules of
Evidence.

  C. Costs and Benefits of a Requirement That Unavailability be Shown

   In our opening brief, we explained that the rule adopted by the
court of appeals would produce very little legitimate benefit for
criminal defendants, while imposing a substantial burden on the
prosecution and the entire judicial system.  These arguments are
largely unanswered in respondent's brief.

   1. Benefit to defendants. The court of appeals held that a
co-conspirator statement may be introduced if the government (a)
"produce(s) the declarant() for cross-examination" (Pet. App. 12s) or
(b) shows that the declarant is unavailable.  Thus, as we observed in
our opening brief (at 41), the court of appeals' rule cannot be
justified on the ground that it keeps out an inferior type of
evidence, because under that rule co-conspirator statements will
always be admitted provided that the prosecution jumps through the
prescribed hoops -- i.e., either produces the declarant or shows to
the court's satisfaction that the declarant is unavailable.
Consequently, if the court of appeals' rule would benefit defendants
at all, it must be because of the additional evidence that it may
bring in.  On examination, however, it seems quite clear that the
court of appeals' rule will bring in little if any additional
testimony favorable to the defense.  The effect of the court of
appeals' rule in this regard is illustrated by the following chart:

 EFFECT OF COURT OF APPELAS RULE ON AVAILABILITY OF ADDITIONAL
TESTIMONY

   No additional testimony with respect to the following
co-conspirator/declarants:

         Those who would be called anyway by prosecution or defense.

         Those who would refuse to testify if called.

         Those who cannot be found.

         Those whom defense would not want to question even if
      produced by prosecution.

   Additional testimony with respect to following
co-conspirator/declarants:

         Those, if any, who

         a) can be found and

         b) will not refuse to testify and

         c) would not be subpoenaed by either side (as regular or
      hostile witness) but

         d) would be questioned by defense if produced by government

   It is evident that exceedingly few declarants will fall into the
category represented by the right column of the chart and therefore
that the court of appeals' rule will produce little if any additional
testimony of potential value to the defense.  If the defense does not
wish to call a witness to testify either as a regular or hostile
witness, it is difficult to understand why the defense would want to
question the witness if produced by the government in accordance with
the court of appeals' new rule.  In the present case, for example, if
respondent really wanted to question the co-conspirator/declarant
Lazaro, it is difficult to understand why the defense did not subpoena
Lazaro or make any other efforts to secure his testimony.  Certainly
it cannot be, as respondent repeatedly asserts, so that the right of
cross-examination is preserved, for Fed. R. Evid. 806 expressly
provides that "(i)f the party against whom a hearsay statement has
been admitted calls the declarant as a witness, the party is entitled
to examine him on the statement as if under cross-examination."

   Although we posed these questions in our opening brief, respondent
has not provided a plausible answer.  Respondent's only explanation
(Br. 38) is the following:

      In the case here the defendant cross-examined both McKeon and
      Mrs. Lazaro (co-conspirator/declarants who testified for the
      government) at length and was prepared to cross-examine Mr.
      Lazaro had the government called him * * * .

   This answer is clearly not responsive to our argument.  If John
Lazaro had testified for the government and given testimony damaging
to the defense, one would expect defense counsel to cross-examine him
in an effort to negate or limit the damage.  The question that is
posed by our analysis is not whether respondent would have
cross-examined John Lazaro if he had testified for the prosecution but
why if the defense had any independent desire to secure Lazaro's
testimony, it did not employ the procedures available to it for that
purpose.

   2. Burden on the government and the judicial process.  In our
opening brief (at 40-41), we noted that the court of appeals left
unclear whether its new rule requires only that the prosecution bring
the co-conspirator/declarant to the courthouse or whether the
prosecution must actually place him on the stand as its witness.  If
the court of appeals was concerned solely with the production of the
declarant, we do not understand why this question should not be
addressed under the Compulsory Process Clause rather than the
Confrontation Clause.  On the other hand, if the court of appeals'
rule requires the prosecution to conduct some kind of direct
examination of the declarant, this procedure would disrupt the
adversary process and create a severe potential for jury confusion.
Respondent's brief does nothing to clarify this important issue.

   Even if production of the declarant is all that is required, the
court of appeals' rule, as we explained in our opening brief (at
37-40), would impose substantial burdens on the prosecution and the
judicial system as a whole.  First, there is the burden and disruption
of having to transport large numbers of co-conspirator/declarants to
the courthouse.  Often these individuals will be incarcerated in
institutions remote from the scene of trial, and therefore
transporting them to court will be burdensome for prison officials and
the marshals, as well as occasioning an increased risk of escape.
Respondent's only answer to this point (see Br. 37 n.15) is that the
legal mechanisms for producing an incarcerated witness "have long been
readily available." Our point, however, had nothing to do with the
availability of a legal mechanism for producing an incarcerated
individual but the practical burden of having to do so when neither
party affirmatively desires testimony from the individual.

   Where the declarant is not incarcerated, the burden and disruption
caused by the court of appeals' production requirement may be just as
great or greater.  Such declarants will often have a strong desire not
to testify because of sympathy for or fear of the defendant.
Accordingly, it is entirely predictable that many such declarants will
make it as hard as they can for the government to discharge the
production burden imposed by the court of appeals.  The seemingly
evasive behavior of John Lazaro in this case is a foretaste, we think,
of what will frequently occur if the decision below is affirmed.  If a
witness is not incarcerated and does not wish to appear in court, the
government has no ability to compel his attendance until he has
disobeyed at least one subpoena and a bench warrant has been issued.
By that point, of course, the court proceedings will have already been
disrupted at least once.  /3/

   The second burden caused by the court of appeals' rule is that of
demonstrating on the record that a declarant is not available to
testify.  This may involve two different problems.  In some cases --
for example, those in which the government wishes to introduce
statements contained in tape recordings of electronic surveillance --
it may be very burdensome for the government to establish on the
record that it has exhausted all reasonable means of identifying
unknown participants in a conspiratorial conversation.  Consider for
example a case in which members of a drug distribution conspiracy
discuss plans for distributing drugs, and one of the participants in
the conversation is an unknown conspirator whom the other conspirators
address by nickname or by his first name -- let us say "Pete." The
potential scope of an investigation to ascertain the identity of
"Pete" is obviously vast.  How many persons associated with the known
conspirators must be questioned?  How many persons must be asked to
listen to the tape?  If the known conspirators are found to have
numerous friends and associates by the name of "Pete" or "Peter," must
they all be tracked down?  If the tape contains internal leads
regarding "Pete's" identify -- if for example it seems to reveal his
occupation or city of residence -- how far must those leads be
pursued?  Problems similar to these have already arisen.  In United
States v. Ordonez, 737 F.2d 793, 802 (9th Cir. 1984), the court held
that the Confrontation Clause was violated because the government
introduced drug ledgers containing entries made by unidentified
co-conspirators without demonstrating to the court's satisfaction that
it was totally unable to identify these conspirators.  The court did
not explain, however, precisely what steps it believed the government
was obligated to take to discharge this burden.

   Some co-conspirator declarants, while identifiable, may not be
locatable, and thus the government would be compalled under the
decision below to demonstrate to the satisfaction of the trial court
-- and ultimately the appellate courts -- that all reasonable efforts
had been made to locate and assure the availability of the declarant.
Respondent cites Ohio v. Roberts (Br. 36 n. 14) to show that this
obligation is not "unduly burdensome," but to us that case well
illustrates the great burdens this rule will in fact impost on the
courts.  In Roberts, the state ultimately succeeded (over three
dissents in this Court) in establishing that the witness in question
could not reasonably be found -- but not before the state had
litigated the issue at three levels in the state courts, as well as
before this Court.

   Furthermore, even if it can be established that a declarant cannot
be found at the time of trial, a contention may be made that the
declarant slipped away because the government did not take sufficient
steps to monitor his whereabouts.  See Motes v. United States, 178
U.S. 458 (1900).  Requiring the government to show everything it did
to keep tabs on the declarant during the weeks or months before the
trial would be a considerable burden.  And what steps the courts would
regard as sufficient is of course as yet unknown.

                                 II.

   In our opening brief (at 44-46), we contended that even if a
showing of unavailability were required, the court of appeals erred in
ordering a new trial instead of first remanding for a hearing on John
Lazaro's availability.  If Lazaro was unavailable, we argued,
respondent was not prejudiced and a new trial should not be ordered.

   Respondent defends the court of appeals' disposition on two
principal grounds.  First, he argues (Br. 40) that "the government had
and declined its opportunity in the trial court to prove
unavailability or produce the declarant" and that the government
should not get "a second bite at an apple it once rejected." /4/ This
argument would unreasonably penalize the government.  At the time of
trial the government had perfectly reasonable grounds for believing
that proof of Lazaro's unavailability was not required.  Not only had
the trial court implicitly so held (see U.S. Br. 5), but nearly 200
years of practice permitted the admission of co-conspirator statements
without any showing of unavailability.  Moreover, even if the
government could be faulted for not satisfactorily demonstrating
Lazaro's unavailability, such an error would not explain why the
judicial process and society should be penalized by depriving the
trier of fact of evidence probative of respondent's guilt.  Unless
Lazaro would have testified at trial and given material testimony
favorable to the defense, the government's alleged error in failing to
produce him in court did not prejudice respondent and accordingly
should afford no reason to disturb respondent's conviction.

   Respondent also contends (Br. 41) that a remand hearing "would be
completely inadequate as a device for resolving the question whether
(Lazaro) would have testified." Respondent argues that Lazaro had no
legal basis for refusing to testify and therefore that the question
that would have to be resolved on remand is whether he was willing to
stand in contempt.  This argument is plainly incorrect.  At the time
of trial, Lazaro had been convicted of related state charges, but he
could have been prosecuted for federal offenses similar to those
charged against respondent.  Consequently, Lazaro's entitlement to
claim the Fifth Amendment privilege seems clear.  If this Court adopts
the Confrontation Clause rule crafted by the court of appeals, the
government should not be deprived on remand of the opportunity to show
beyond a reasonable doubt that production of Lazaro in the courtroom
would not have altered the outcome of the trial.  /5/

                              CONCLUSION

   The these reasons and those set forth in our opening brief, the
judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   NOVEMBER 1985

   /1/ Respondent also contends (Br. 11) that our opening brief gave
"short shrift" to "the historical function of the right of
confrontation," which respondent seems to identify as providing an
opportunity for cross-examination and assessment of the witness's
demeanor.  There can, of course, be no doubt that these are the broad
purposes underlying the right of confrontation, but it is an enormous
leap from these broad purposes to the rule adopted by the court of
appeals in the present case.  The opportunity for cross-examination
and assessment of demeanor are restricted whenever a court admits a
hearsay statement made by a non-testifying declarant.  It must follow,
therefore, either (a) that all hearsay is barred by the Confrontation
Clause (a conclusion at war with the last several centuries of
Anglo-American evidence law and practice) or (b) that there are valid
exceptions to the general principle that persons whose statements are
introduced as evidence in criminal cases should be available for
cross-examination and assessment of demeanor.  Since there must be
such exceptions, respondent's argument is not at all advanced by the
recitation of the broad purposes served by the confrontation right.

   /2/ Respondent's explanation (Br. 14-18) of the basis for the
co-conspirator rule is a misleading oversimplification.  In our view,
the co-conspirator rule is supported by three rationales.  Although
each rationale does not apply to every statement falling within the
co-conspirator rule, these three rationales, when taken together,
fully support the rule.

   First, many co-conspirator statements bear special hallmarks of
reliability.  As the Seventh Circuit recently explained (United States
v. Molt, 772 F.2d 366, 368-369 (1985)):

         The declarations of conspirators are * * * contemporaneous
      statements in an ongoing business relation.  * * *

         (These) declarations are reliable in the same sense that
      contracts or negotiations among legitimate business partners
      usually portray accurately the affairs of those involved.  * * *

   Second, a high percentage of co-conspirator statements are relevant
for non-hearsay purposes.  To that extent at least, they are plainly
not subject to Confrontation Clause regulation.  See Tennessee v.
Street, No. 83-2143 (May 13, 1985).  Indeed, many contain no
assertions of fact and thus cannot be hearsay.  See Fed. R. Evid. 801
(c).  Other co-conspirator statements, although containing assertions
of fact, could be admitted for non-hearsay purposes.  Thus, if there
were no co-conspirator rule, courts would have to examine very
carefully each sentence of a conspiratorial conversation, would have
to decide many difficult questions under Fed. R. Evid. 403, and would
have to give many potentially confusing limiting instructions.

   Finally, there are circumstances in which principles of agency
support the admission of co-conspirator statements, i.e.,
circumstances in which the statement of one conspirator may
realistically be viewed as an admission of a co-conspirator.  A
party's admission is exempted from the hearsay rule because the party
can always dispute the accuracy of his own alleged statements.  See
Fed. R. Evid. 801 advisory note.  Likewise, when a
co-conspirator/declarant remains in league with the defendant at the
time of trial, it makes sense to regard the declarant's statement as
the defendant's admission because it often lies within the defendant's
power to put on testimony by the declarant disavowing or explaining
his alleged prior statements.

   /3/ Respondent seeks to minimize the burden of the court of
appeals' rule by observing (Br. 37) that "in some circumstances" the
government would not have to bring a declarant to court but "could
show its good faith efforts to produce through the simple procedure of
presenting an affidavit from the declarant establishing that he would
claim the privilege." But respondent ignores the obvious fact that
many co-conspirator declarants will not obligingly execute such
affidavits.  Those who are incarcerated may view a trip to court as a
welcome escape from the daily routine;  others may refuse to execute
an affidavit out of simple hostility for the prosecution or because
they want to assist the defense by making the prosecution's task as
difficult as possible.  While this procedure is convenient for
respondent to espouse here, we doubt that future defendants will so
meekly acquiesce;  nor is it clear that the affidavit procedure could
be forced upon them.  See U.S. Br. 40 n.36.

   /4/ While the court of appeals ultimately came to a different
conclusion, it was not necessarily clear to the prosecutor at the time
that Lazaro's statement to her that he would refuse to testify --
relayed by her to the court -- was inadequate to establish his
unavailability.  See J.A. 18-19.

   /5/ Respondent also contends (Br. 40 n.16) that the government
waived its right to object to the relief ordered by the court of
appeals -- a new trial -- because the government did not address this
issue until after the court's decision was announced.  This is surely
an extreme application of the rule that arguments ordinarily should
not be raised by the first time on reharing.  Until the court of
appeals handed down its decision, the government did not know whether
the court would find a Confrontation Clause violation, much less that
it would order what in our view is entirely inappropriate, wasteful,
and excessive relief.  We are not aware of a rule requiring appellees
to anticipate and brief all forms of unwarranted relief that an
appellate court might impose.