PAUL HARRIS, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7537

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The judgment order of the court of appeals (Pet. App. I) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on March 30, 1990.
 The petition for a writ of certiorari was filed on May 17, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the admission of the redacted confession of petitioner's
codefendant violated the Confrontation Clause of the Sixth Amendment.

   2. Whether the district court properly admitted into evidence
eyewitnesses' in-court and photo-spread identifications of petitioner.

   3. Whether the district court properly admitted into evidence
petitioner's statements to the arresting agents.

                               STATEMENT

   After a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted on one count of
robbing an individual of personal property belonging to the United
States, in violation of 18 U.S.C. 2112 and 2.  He was sentenced to a
term of seven years' imprisonment and ordered to pay $835.15 in
restitution.  The court of appeals affirmed.

   1. The evidence at trial showed that on the afternoon of January 2,
1988, petitioner and codefendant Bianca Falu drove to a 7-11 store in
North Miami Beach, Florida.  Falu waited inside the car as petitioner
entered the store.  Linda Roberts and Karen Roseman, both of whom were
employees of the Miami branch of the United States Secret Service,
were at the store counter.  Petitioner grabbed Roseman's purse.
Before the purse strap broke, petitioner dragged Roseman through the
store door into the parking lot.  Once outside, petitioner managed to
snatch the purse away.  He jumped into the waiting car;  Falu drove
the pair off.  Roseman's purse contained, among other things, her
official photo identification card and a set of keys to the Secret
Service's Miami field office.  Pet. 11-15;  Gov't C.A. Br. 3-12.

   2. a. Before trial, petitioner filed a motion to suppress his
incriminating statements to the arresting agents.  He contended that
as a result of lack of sleep, recent ingestion of cocaine, and the
agents' promise to "feed him and let him sleep if he confessed," the
statements he gave were not "voluntary." Pet. Mot. to Suppress
Statements 2-3, United States v. Harris, No. 88-14-Cr (S.D. Fla. filed
Feb. 16, 1988).  After a hearing, at which both petitioner and one of
the agents testified, the district court denied the motion.  The court
determined that

      the statement(s) (were) made by (petitioner) after Miranda
      warnings were given and acknowledged by (him), that at the time
      the statements were given, (petitioner was) coherent, and
      finally, that such statements were freely and voluntarily given
      with knowledge of (his) rights.

Gov't C.A. Br. 21.

   b. Petitioner also filed a pretrial motion to suppress Roberts' and
Roseman's photo-spread identifications of petitioner and to prohibit
those witnesses from identifying him at trial.  After a hearing, at
which the agent who compiled the photo spread and the eyewitnesses
testified, the district court denied the motion.  The photo spread
consisted of petitioner's "booking" photograph, together with those of
five other men who "looked most similar" to petitioner.  Pet. 7;
Gov't C.A. Br. 18.  Both Roberts and Roseman, after viewing the photo
spread and being told that it contained the suspect's photograph,
positively identified petitioner as the robber.  In these
circumstances, the district court concluded, the photo spread was not
unduly suggestive and there was no substantial risk that the
witnesses' identifications were mistaken.  Gov't C.A. Br. 18.

   c. Petitioner also filed a motion for severance, contending that
the government's introduction into evidence of codefendant Falu's
statements incriminating him would violate the principles of Bruton v.
United States, 391 U.S. 123 (1968).  The district court denied the
motion.  At trial, over petitioner's objection, the district court
admitted Falu's redacted statement into evidence.  /1/ That statement
read as follows:

         On Saturday, January 2nd, 1988 at approximately 1:00 p.m. I
      met with this guy at a crack house on Northwest 16th Avenue near
      173rd Street I have known only for a few months and whenever we
      are together it usually to get high.

         On Saturday borrowed a car from a white guy.  The car was a
      medium-size gray car.  After borrowed the car, spent most of
      afternoon riding around getting high.  Needed some money for
      crack, so decided that if got the chance to take some, would.

         Just before dark and about 5:00 o'clock, went to a 7-11 in
      North Miami Beach.  * * *

         I waited in the car while he went inside to get me a soda.
      When he got out of the car, I turned the car around and backed
      it in.  A couple of minutes later he got back.  I saw that he
      had a purse.  I drove away from the store fast, turning left out
      of the parking lot.  A short time later, we went through the
      purse and threw away most of the things in it.  We were still
      high and I don't remember where the things were thrown, although
      some were thrown away while we were driving.  The purse was also
      thrown away.  I know that what I did was wrong and against the
      law and I'm sorry for it.  Bianca Falu.

Gov't C.A. Br. 12-13.  (The district court also admitted petitioner's
corroborating confession into evidence.  Id. at 11-12.) /2/

   3. In the court of appeals, petitioner contended that the admission
of Falu's redacted confession, which implicated him when considered
together with other evidence, violated the Confrontation Clause of the
Sixth Amendment.  Pet. C.A. Br. 14-19.  Petitioner also challenged the
district court's admitting into evidence the two eyewitnesses'
in-court and photo-spread identifications of petitioner, contending
that the photo spread was unduly suggestive and created a substantial
risk of in-court misidentification.  Pet. C.A. Br. 20-25.  Finally,
petitioner claimed that his statements to the arresting officers were
involuntary and coerced, and thus should have been suppressed.  Pet.
C.A. Br. 25-27.

   The court of appeals summarily rejected each of petitioner's claims
in an unpublished judgment order.  Pet. App. I.

                               ARGUMENT

   1. Petitioner renews his contention (Pet. 16-21) that the admission
of Falu's redacted confession, which implicated him when considered
together with other evidence, violated the Confrontation Clause of the
Sixth Amendment.  In Bruton v. United States, supra, this Court held
that "a defendant is deprived of his rights under the Confrontation
Clause when his nontestifying codefendant's confession naming him as a
participant in the crime is introduced at their joint trial, even if
the jury is instructed to consider that confession only against the
codefendant." Richardson v. Marsh, 481 U.S. 200, 201-202 (1987).  In
Marsh, the Court held that Bruton does not bar the introduction of a
codefendant's confession that has been redacted to eliminate all
references to the existence of the defendant, and is only indirectly
linked to the defendant by other evidence introduced at trial.  The
Court explained that when a codefendant's confession does not directly
incriminate the defendant, there is no reason to depart from "the
almost invariable assumption of the law that jurors follow their
instructions," 481 U.S. at 206, including the instruction to consider
the confession only against the codefendant.

   As petitioner points out (Pet. 17), the Court did not decide in
Marsh whether a trial court may admit a codefendant's confession "in
which the defendant's name had been replaced with a symbol or neutral
pronoun." See 481 U.S. at 211 n.5.  Since Marsh was decided, the
courts of appeals have generally held that as long as the redacted
statement is not facially incriminating to the defendant, and does not
suggest to the jury that it contained actual names, it may be admitted
at trial, subject to a limiting instruction.  See, e.g., United States
v. Sophie, 900 F.2d 1064, 1076-1077 (7th Cir. 1990);  United States v.
Romero, 897 F.2d 47, 53 (2d Cir. 1990);  United States v. Garcia, 836
F.2d 385, 390-391 (8th Cir. 1987).  Here, Falu's redacted statement,
by its terms, did not directly implicate petitioner, nor did it
suggest to the jury that it once contained names of certain
individuals.  Moreover, the district court gave appropriate limiting
instructions both before it admitted the statement into evidence and
before the jury retired for deliberations.  As in Marsh, the redacted
statement was only indirectly linked to petitioner by other evidence
introduced at trial.  In these circumstances, the admission of the
redacted statement did not violate the Confrontation Clause.

   To be sure, as petitioner suggests (Pet. 20-21), the Eleventh
Circuit appears to follow a different approach, one that does not
confine its review of the challenged statement to the statement
itself.  Rather, the court of appeals considers the entire record to
determine whether the challenged redacted statement "compels a direct,
rather than indirect, implication of the complaining defendant."
United States v. Vasquez, 874 F.2d 1515, 1518 (11th Cir. 1989), cert.
denied, 110 S. Ct. 845 (1990);  see United States v. Pendergraph, 791
F.2d 1462, 1465 (11th Cir.), cert. denied, 479 U.S. 869 (1986);
United States v. Satterfield, 743 F.2d 827, 849 (11th Cir. 1984),
cert. denied, 471 U.S. 1117 (1985);  see also United States v. Burke,
700 F.2d 70, 85 (2d Cir.), cert. denied, 464 U.S. 816 (1983).  Under
that approach, the admission of Falu's statement could be considered
error, since the record here left the jury little room to speculate
that the unidentified individual was not petitioner.  /3/

   Nevertheless, this case does not present an occasion to address
whatever differences may exist between the approaches used by the
courts of appeals.  This Court has made clear that a Bruton violation
may be harmless error.  E.g., Cruz v. New York, 481 U.S. 186, 193-194
(1987);  Schneble v. Florida, 405 U.S. 427, 430 (1972).  And the lower
courts have consistently applied that principle.  See, e.g., United
States v. Long, 900 F.2d 1270, 1280 (8th Cir. 1990);  United States v.
DiCarlantonio, 870 F.2d 1058, 1062 (6th Cir.), cert. denied, 110 S.
Ct. 323 (1989);  United States v. Gutierrez-Chavez, 842 F.2d 77, 80-81
(5th Cir. 1988);  United States v. Petit, 841 F.2d 1546, 1556 (11th
Cir.), cert. denied, 108 S. Ct. 2906 (1987).  Here, the record
contains overwhelming evidence of petitioner's guilt, including his
own confession, two eyewitness identifications, and the fact that he
called the victim herself shortly after the robbery in order to
arrange to return the stolen property.  See Pet. 11-16.  Accordingly,
petitioner would not be entitled to relief under either of the
approaches to the admissibility of redacted statements used by the
courts of appeals.

   2. Petitioner also contends (Pet. 22-27) that the district court
erroneously admitted into evidence the two eyewitnesses' in-court and
photo-spread identifications, because the photo spread was unduly
suggestive and created a substantial risk of in-court
misidentification.  In Simmons v. United States, 390 U.S. 377, 384
(1968), this Court held that

      convictions based on eyewitness identification at trial
      following a pretrial identification by photograph will be set
      aside on that ground only if the photographic identification
      procedure was so impermissibly suggestive as to give rise to a
      very substantial likelihood of irreparable misidentification.

Here, the record shows that the photo spread consisted of petitioner's
"booking" photograph, together with those of five other men who
"looked most similar" to petitioner.  Pet. 7;  Gov't C.A. Br. 18.
Both Roberts and Roseman, after viewing the photo spread and being
told that it contained the suspect's photograph, positively identified
petitioner as the robber.  /4/ In these circumstances, petitioner's
challenge to the eyewitness identifications is meritless.

   3. Finally, petitioner contends (Pet. 27-29) that his statements to
the arresting agents were involuntary and coerced, and thus should
have been suppressed.  The record, however, refutes that challenge.
See pp. 2-3, supra.  Indeed, petitioner claims that the lower courts'
findings were "clearly erroneous." Pet. 27.  Yet he offers no
persuasive reason for the Court to deviate here from its general
practice of declining to review factual findings concurred in by both
lower courts.  E.g., Tiffany Fine Arts, Inc. v. United States, 469
U.S. 310, 318 n.5 (1985);  United States v. Reliable Transfer Co., 421
U.S. 397, 401 n.2 (1975).  Accordingly, no further review of
petitioner's fact-specific claim is warranted.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   KAREN SKRIVSETH

      Attorney

   JULY 1990

   /1/ Codefendant Falu failed to appear for the second day of trial.
The trial continued in her absence and the jury also found her guilty
of the charged offense.  The authorities arrested Falu the day after
the jury returned its verdict.  The district court later sentenced
Falu to a term of 30 months' imprisonment.  Gov't C.A. Br. 2-3.

   Before admitting the statement into evidence, the district court
instructed the jurors that the statement had been redacted and that
they should draw no inferences or conclusions from that fact.  Gov't
C.A. Br. 14.

   /2/ At the close of the case, the district court instructed the
jury that it should treat statements made by petitioner and Falu with
care and that it was not to consider any of those statements as
evidence against the other defendant.  Gov't C.A. Br. 14.

   /3/ The Eleventh Circuit's approach appears to be the sort of
"contextual implication" doctrine this Court eschewed in Richardson v.
Marsh, 481 U.S. at 209.

   /4/ The agent conducting the photo-spread identification should not
have told the witnesses that the suspect's photograph was included.
Nonetheless, this apparent lapse in judgment scarcely undermines the
reliability of the identification procedure in light of the fact that
both Roseman and Roberts "got a good look at (petitioner) during the
robbery," Gov't C.A. Br. 5, and unhesitatingly identified his
photograph.