UNITED STATES OF AMERICA, PETITIONER V. JAMES JOSEPH OWENS

   No. 86-877

   In the Supreme Court of the United States

   October Term, 1986

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

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Constitutional provision and rule involved
   Question presented
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                             OPINION BELOW

   The opinion of the court of appeals (App., infra, 1a-30a) is
reported at 789 F.2d 750.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 31a) was entered
on May 12, 1986.  A petition for rehearing was denied on September 2,
1986 (App., infra, 32a).  On October 20, 1986, Justice O'Connor
extended the time within which to file a petition for a writ of
certiorari to and including December 1, 1986.  The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

              CONSTITUTIONAL PROVISION AND RULE INVOLVED

   The Sixth Amendment to the Constitution provides in pertinent part:

         In all criminal prosecutions, the accused shall enjoy the
      right * * * to be confronted with the witnesses against him * *
      * .

   Rule 801(d) of the Federal Rules of Evidence provides in pertinent
part:

         A statement is not hearsay if -- (1) * * * The declarant
      testifies at the trial or hearing and is subject to
      cross-examination concerning the statement, and the statement is
      made * * * (C) one of identification of a person made after
      perceiving him * * * .

                          QUESTIONS PRESENTED

   1. Whether the Confrontation Clause was violated as a result of the
in-court testimony of an assault victim, who recalled in detail his
pretrial identification of respondent as his assailant but who could
not remember certain details of the assault itself.

   2. Whether Fed. R. Evid. 801(d)(1)(C) bars an assault victim from
testifying at trial about his out-of-court identification of his
assailant, when the victim has suffered a partial memory loss
concerning the assault but has a full recollection of the
identification.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Central District of California, respondent, a federal prisoner, was
convicted of assault with intent to commit murder, in violation of 18
U.S.C. 113(a).  He was sentenced to 20 years' imprisonment, to be
served consecutively to the sentence he was already serving.

   1. The evidence at trial showed that on the morning of April 12,
1982, 61 year-old John Foster, a correctional counselor at the federal
prison in Lompoc, California, was assaulted and beaten with a metal
pipe.  In an effort to prove that it was respondent who beat Foster,
the government called 14 witnesses, including Foster, three inmate
eyewitnesses, and an inmate to whom respondent made inculpatory
statements about the crime.  The government also introduced physical
evidence, including clothing belonging to respondent that contained
blood spots matching Foster's blood type.

   a. The government's evidence revealed that on the day before the
attack, several inmates discussed a plan to attack Foster.  On that
day, respondent attended a meeting of a prison religious group, called
the "Moorish Science Temple of America" (the Moors).  During the
meeting, one of the inmates stated that "a move would have to be made
in order to gain some kind of respect." He added that he was tired of
(Foster) fucking with (him)." Respondent, who was one of the leaders
of the Moors, repeated those observations and expressed agreement with
them.  4 Tr. 120-121, 126-128;  6 Tr. 141.

   The next morning, Foster arrived for work at the Lompoc prison at
about 5:35 a.m. and went to his office at the prison's "J" unit.
Shortly after 6:00 a.m., he was instructed to release the 90 inmates
in the J unit for breakfast.  After doing so, Foster went to the
unit's television room to check for contraband.  While he was inside
the television room, Foster was struck several times on the face,
head, and upper body.  2 Tr. 80-81, 85-90, 133-136.

   Inmate Bowers was one of the three inmate eyewitnesses to the
assault who testified at trial.  On the morning of the assault, Bowers
was on a landing near the J unit television room when he saw inmates
Melvin Davis and Cecil Curry, whom he had seen the day before at the
Moors' meeting.  After one of them told Bowers that he "shouldn't be
coming up here," Bowers heard a "shuffling-like noise" coming from the
room.  Upon opening the door, Bowers saw Foster lying on the floor,
shaking and going into convulsions.  Respondent was standing over
Foster holding a metal pipe.  When he saw Bowers, respondent asked him
what he was doing there, swung something at him, and ran out the door.
 4 Tr. 120, 136-142.

   Inmate Albert Washington also witnessed the assault.  While on his
way to the laundry room on the morning of the assault, Washington
heard crying or moaning sounds coming from the television room.  He
looked through the window of the room and observed respondent, who was
wearing a gray sweatshirt, repeatedly strike Foster on the arm with a
pipe.  Washington also saw Curry and Davis at the scene of assault.  1
Tr. 238-249, 269.

   Inmate Michael Jeffrey also witnessed the incident.  Jeffery was
taking a shower when he heard a "gurgling, loud strangling noise."
Jeffery left the shower and went to the door of the television room
and looked inside, where he observed respondent repeatedly strike
Foster with a "long round object" that "could have been a pipe." After
returning to the shower, Jeffery saw respondent enter an adjacent mop
room.  He then heard respondent tell Davis to throw respondent's
sweatsuit top out the window.  Jeffery watched as Davis appeared to do
so.  3 Tr. 16-21, 24-26.

   During the assault, Foster set off the body alarm that he was
carrying with him.  Prison officials discovered Foster in the
television room lying in a pool of blood, and they immediately rushed
him to the hospital.  1 Tr. 198-201;  2 Tr. 96.

   Following the assault, prison officials found a bloody metal pipe
in the prison yard, a sweatsuit top outside the mop room window (where
Jeffery had seen the garment thrown), and a pair of khaki trousers in
an unassigned J unit cell.  Blood stains on both the sweatsuit and
trousers matched Foster's blood type.  2 Tr. 136;  3 Tr. 118;  4 Tr.
101-104, 253, 255-256.  Washington identified the sweatshirt as the
one worn by respondent during the assault;  Jeffery identified it as
the one he saw Davis throw out the window at respondent's direction;
and a prison official recognized it as one worn by respondent on a
daily basis prior to the assault.  1 Tr. 193-195, 246-247;  3 Tr. 28.
In addition, a photograph of respondent wearing what appeared to be
the same sweatsuit top was found among his belongings (5 Tr. 34).  The
khaki pants were also identified as similar to the prison-issued pants
typically worn by respondent, and when respondent tried them on at
trial, they fit him (1 Tr. 195-197;  5 Tr. 10-11).

   During the investigation of the assault, prison authorities placed
respondent in a segregation unit.  While he was there, respondent
became acquainted with another inmate, Douglas Ridinger, who worked as
an orderly.  Approximately a week after the assault, Ridinger asked
why Foster had been assaulted.  Respondent replied, using words
similar to those spoken at the Moors' meeting on April 11, that "this
is something we have to do in order to get respect, just plain and
simple." 3 Tr. 124-130, 144-145;  4 Tr. 59.

   The medical evidence at trial revealed that Foster suffered
fractures to his skull, cheekbone, arm, and right middle finger, as
well as various other injuries.  He was initially very confused and
disoriented and could remember little more than his name.  According
to Foster's neurosurgeon, at least five hard blows with a blunt
instrument were necessary to cause the head injuries alone.  The
neurosurgeon performed emergency surgery on the day of the assault to
relieve pressure on Foster's brain caused by the fractured skull.
Foster initially showed some improvement, but then began to suffer
periods of confusion and disorientation.  After additional surgical
procedures were performed, Foster was released from the hospital on
May 10, 1982.  2 Tr. 133-138, 142-143, 156-157, 162-165, 172-175.

   During his hospital stay, Foster was visited by Dr. Ted Bader, the
prison physician.  As Dr. Bader recounted at trial, when he asked
Foster who had assaulted him, Foster responded, without hesitation, "I
think it was Owens, the D.C. black" (2 Tr. 207-208).  FBI Agent Thomas
G. Mansfield, who was investigating the assault, learned about
Foster's statement and attempted to interview him.  Foster appeared
lethargic and groggy, however, and when Mansfield asked who had
assaulted him, Foster's only response was a word that sounded like
"coma." Five days prior to Foster's release from the hospital,
Mansfield interviewed him again.  This time, according to Agent
Mansfield's testimony, Foster's condition had improved substantially.
Foster, who was alert and coherent, described how the attack had
occurred, said that Owens was his assailant, and selected Owens'
photograph from a photospread.  5 Tr. 22-25.

   b. Foster testified at length at the trial (2 Tr. 71-131).  /1/
After describing his professional background (2 Tr. 72-79), Foster
testified that he knew respondent as an inmate of the J unit (2 Tr.
80).  He recalled that, on the morning of April 12, 1982, he arrived
at the prison at 5:35.  He first obtained a body alarm and the keys to
the J unit.  He then went to the counselor's office in the unit, where
he made a pot of coffee and recorded the inmate count in a logbook.
Shortly after 6:00 a.m., he was called by a superior and instructed to
begin feeding the prisoners.  Foster opened the doors to each range of
cells, and he entered the J unit television room to inspect it for
contraband.  Shortly after entering the room, he felt an impact on his
head.  Although he could not remember the identity of the person who
struck him, he recalled that his assailant was armed with a piece of
pipe.  He also recalled that, following the assault, he looked down
and saw blood on the floor.  Foster testified that his injuries
included a fractured skull, cuts and bruises, and a broken arm.
Foster also recalled injuring his right middle finger when he jammed
it into his assailant's chest.  2 Tr. 81-93, 100.

   Foster explained that the next thing he remembered after being hit
was waking up at the hospital.  The one hospital visit he recalled at
trial was a visit by Agent Mansfield.  2 Tr. 90-92, 94-95.  Foster
testified that "(a)s to what I told Mr. Mansfield that day, it is very
vivid in my mind" (id. at 96;  see also id. at 91-92).  In particular,
Foster remembered telling Mansfield that "after I was hit I looked
down and saw the blood on the floor, and jammed my finger into Owens'
chest, and said, 'That's enough of that,' and hit my alarm button"
(ibid.).  He indicated, moreover, that at the time he spoke to
Mansfield, there was no doubt in his mind that what he said was
accurate.  In addition, Foster recalled that Mansfield asked him to
identify his assailant from a group of photographs and that he
selected respondent's picture.  2 Tr. 96-97.

   Foster was subjected to extensive cross-examination, during which
he acknowledged that "(a)t this time he (did not) remember" seeing his
assailant (2 Tr. 100).  In response to defense counsel's inquiries, he
also conceded that while his statement to Mansfield was "vivid," he
could not recall making any other statements during his stay at the
hospital, and he did not remember asking (as noted in a medical
report) who his assailant was or whether it was "Leo" (2 Tr. 102, 105,
109).  He admitted that, although many people, including his wife, had
apparently visited him during his hospital stay, he did not recall any
of the visits except the visit by Mansfield that he had described (2
Tr. 110-111, 114).  Foster stated that the assault was "vivid in (his)
mind when (he) had given the information to Mr. Mansfield," but he was
unable to explain the basis for his identification (2 Tr. 114).

   During summation, respondent's attorney emphasized Foster's
testimony about his loss of memory, as elicited during
cross-examination.  She argued that Foster had admitted that he could
not recall seeing his assailant and could not remember why he had told
Mansfield that respondent had committed the assault.  From that she
suggested that Foster probably had made the identification as the
result of suggestions by persons who had visited him in the hospital.
7 Tr. 59-66.

   2. On appeal, respondent renewed his challenge to the admission of
Foster's out-of-court identification.  The Ninth Circuit reversed
respondent's conviction by a divided vote, holding that because of
Foster's memory loss, the defense was unable to cross-examine him
effectively (App., infra, 1a-23a).  Although the court recognized that
respondent's attorneys were "not restricted in their questioning of
Foster" on the relevant issues (id. at 11a), it determined (id. at
15a) that Foster's responses did not give the jury "the information it
needed in order to determine whether Foster had perceived his
attacker, accurately or at all, or whether at the time he made the
identification, his memory correctly reflected his perceptions." The
court (id. at 17a-18a) explicitly rejected the approach taken by the
Third Circuit in United States ex rel. Thomas v. Cuyler, 548 F.2d 460,
463 (3d Cir. 1977), which held that the Confrontation Clause is not
violated if the witness is sworn and agrees to testify, even if he
asserts an actual or feigned memory loss at trial.

   In addition, the court of appeals held (App., infra, 8a-11a) that
the admission of Foster's pretrial identification violated Fed. R.
Evid. 801(d)(1)(C).  The court construed Rule 801(d)(1)(C) to require
cross-examination not only about the identification itself, but also
about "the facts and circumstances underlying the identification,"
namely, "the reasons why (the declarant) made the identification"
(App., infra, 9a (emphasis in the original)).  The court held that
because of Foster's memory loss, respondent was prevented from
adequately exploring the basis for the pretrial identification (id. at
11a).

   The court concluded that the violation of Rule 801(d)(1)(C) was
harmless under the standard applicable to non-constitutional errors,
in light of the testimony of the inmate eyewitnesses, the evidence of
respondent's inculpatory remarks concerning the assault, and the
physical evidence linking respondent to the crime (App., infra, 12a).
The court ruled, however, that the violation of the Confrontation
Clause was not harmless under the standard applicable to
constitutional errors.  Because the court could not find that the
Confrontation Clause violation was harmless beyond a reasonable doubt,
it reversed respondent's conviction (id. at 22a-23a).

   Judge Boochever dissented.  In his view, both the Confrontation
Clause and Fed. R. Evid. 801(d)(1)(C) require only that the witness be
subject to cross-examination concerning the out-of-court statement
itself, not that he be subject to cross-examination concerning the
circumstances underlying the identification.  That requirement was met
because Foster had a complete recollection of his statement to
Mansfield, even if he did not remember why he was able to identify
respondent.  App., infra, 25a-26a.  Judge Boochever also observed (id.
at 26a-27a, 29a) that, as a result of the cross-examination conducted
by respondent's attorney at trial, the jury had an adequate basis to
assess Foster's demeanor and determine whether to credit his
out-of-court identification.  /2/

                   REASONS FOR GRANTING THE PETITION

   This case presents issues of great practical importance.  In
virtually every criminal trial, prosecution witnesses experience some
loss of memory concerning disputed facts.  Yet, until the present
case, the courts have repeatedly rejected assertions of a
Confrontation Clause violation when a witness recalls some relevant
facts but asserts a memory loss as to others.  The Ninth Circuit's
holding that Foster's partial memory loss deprived respondent of his
confrontation right raises disturbing questions in a variety of
previously well-settled areas.  For example, the introduction of
records or memoranda under the past recollection recorded exception to
the hearsay rule (see Fed. R. Evid. 803(5)) -- which is applicable
when the witness "has insufficient recollection (of the matter
recorded) to enable him to testify fully and accurately" -- occurs on
a daily basis in state and federal courts.  Similarly, witnesses
regularly testify about pretrial identifications of suspects under
Fed. R. Evid. 801(d)(1)(C), even though they are unable to make
in-court identifications at trial.  And prior inconsistent statements
are routinely admitted, pursuant to Fed. R. Evid. 801(d)(1)(A),
notwithstanding a witness's partial memory loss concerning the prior
statement.  The present case calls into question the constitutionality
of those previously routine evidentiary procedures.

   1.a. This Court has never found a violation of the Confrontation
Clause based on the loss of memory by a witness who testified at
trial.  As the Court held recently in Delaware v. Fensterer, No.
85-214 (Nov. 4, 1985), mere loss of memory by a witness does not
deprive the defendant of his right to confront the witness;  as long
as the witness is available for cross-examination at trial, the
Confrontation Clause is satisfied.  The Court in Fensterer noted (slip
op. 6) that the Confrontation Clause "includes no guarantee that every
witness called by the prosecution will refrain from giving testimony
that is marred by forgetfulness, confusion or evasion."

   The Fensterer case involved an expert for the prosecution who could
not remember what scientific method he had used to reach his
conclusion about an evidentiary issue in the case;  the Delaware
Supreme Court reversed the defendant's conviction on Confrontation
Clause grounds (493 A.2d 959 (1985)), holding that in light of the
lapse in the expert's recollection, the defendant's cross-examination
of the expert was "nothing more than an exercise in futility" (id. at
964).  In reversing, this Court emphasized (slip op. 6-7) that the
Confrontation Clause was satisfied because the defense was able to
expose the memory loss and show the jury why the expert's testimony
deserved little weight.  Although defense counsel in this case had the
same opportunity to impeach Foster with his loss of memory about the
identity of his assailant, the court of appeals, like the Delaware
Supreme Court, regarded that opportunity as insufficient to satisfy
the Confrontation Clause.

   The court of appeals sought to distinguish Fensterer on the ground
that it did not involve a failure of recollection with regard to an
out-of-court statement (App., infra, 12a-13a n.7).  While that is so,
it is not clear why that distinction should make a difference for
Confrontation Clause purposes.  In Fensterer, the expert testified
about the results of his out-of-court analysis, but he was unable to
recall the circumstances that led him to reach that conclusion.  In
this case, Foster testified about the results of his prior
identification of his assailant, but he was unable to recall the
circumstances that led him to make that identification.  Although the
identification evidence and the expert testimony may stand differently
for hearsay purposes, there is no reason to treat them differently for
purposes of the Confrontation Clause.  In each case, the defendant has
the witness on the stand for cross-examination and at a minimum can
exploit the witness's failure of recollection to undermine the force
of his testimony with the finder of fact.

   In both Fensterer (slip op. 6) and this Court's prior decision in
California v. Green, 399 U.S. 149, 168-169 (1970), the Court raised
but 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 failure of recollection with
regard to the circumstances underlying the statement.  /3/ This case
presents the Court with an opportunity to resolve that question by
determining whether, as we believe, the analysis of Fensterer applies
in the context of witnesses' out-of-court statements.

   b. The court of appeals' decision also creates a conflict among the
circuits concerning the constitutional significance of a witness's
memory loss.  The court of appeals took the position that the
Confrontation Clause bars the admission of an out-of-court statement
by a testifying declarant if the declarant experiences a significant
memory loss with regard to the subject matter of the out-of-court
statement.  In so holding, the court (App., infra, 17a) explicitly
refused to adopt the Third Circuit's analysis in United States ex rel.
Thomas v. Cuyler, supra.  The Third Circuit in the Thomas case held
that the admission of the witness's out-of-court statement did not
violate the Confrontation Clause, even though the witness alleged a
complete lack of recollection about the facts he had related in his
out-of-court statement.  The Confrontation Clause is not violated, the
court held, as long as the witness is sworn and does not refuse to
answer questions, notwithstanding an actual or feigned memory loss
(548 F.2d at 463).  The Third Circuit's approach was based on Justice
Harlan's concurring opinion in California v. Green, 399 U.S. at
172-189.  In Green, Justice Harlan stated his view (id. at 188) that
if a witness is physically present at trial, the fact that he "cannot
recall either the underlying events that are the subject of an
extra-judicial statement or previous testimony or recollect the
circumstances under which the statement was given, does not have Sixth
Amendment consequence." /4/ Justice Harlan's approach has also been
endorsed by the Colorado Supreme Court.  See People v. Pepper, 193
Colo. 505, 568 P.2d 446 (1977) (en banc);  see also Robinson v. State,
102 Wis.2d 343, 353, 306 N.W.2d 668, 673 (1981) (noting in dictum that
it might well endorse Justice Harlan's approach in Green in an
appropriate case).

   Other circuits that have addressed the issue, while not adopting
the per se approach taken by the Third Circuit, have similarly refused
to attach Sixth Amendment significance to a witness's total or partial
memory loss.  Those decisions are likewise inconsistent with the Ninth
Circuit's decision in the present case.  For example, in United States
v. Payne, 492 F.2d 449, 453-454 (4th Cir.), cert. denied, 419 U.S. 876
(1974), the court of appeals upheld the admission of a prior statement
of the witness, even though the witness claimed complete loss of
memory about the facts related in the statement.  Citing with approval
Justice Harlan's concurring opinion in Green, the court of appeals
noted that even though the witness's complete loss of memory
frustrated defense inquiry regarding the truth of the prior statement,
the admission of the statement nonetheless did not violate the
Confrontation Clause.  The court pointed out that the case of complete
memory loss differs only in degree from a case in which "a declarant
has made a detailed earlier statement and at the trial, despite
efforts to refresh his recollection, remembers only some, but not all,
of the details." 492 F.2d at 454.  If the defendant's constitutional
claim were correct, the court added, logic would require that in such
a case, every portion of the prior statement about which the declarant
had suffered a loss of memory would have to be excluded.  Ibid.

   Similarly, in United States v. Insana, 423 F.2d 1165, 1168 (2d
Cir.), cert. denied, 400 U.S. 841 (1970), the court permitted the
government to introduce a witness's prior statement when the witness
at trial claimed a nearly complete lack of memory regarding the
subject of his prior statement.  The Confrontation Clause was
satisfied, the court concluded, because the witness was at all times
available for cross-examination.  The fact that the defendant
"believes such examination would be fruitless (does not) render the
witness unavailable for such examination." 423 F.2d at 1168.

   In other cases as well, the courts of appeals have held that an
assertion of partial or complete loss of memory by a witness does not
result in a Confrontation Clause violation, as long as the witness is
available for cross-examination and the memory lapse does not
completely deprive the jury of its ability to determine the veracity
of the declarant's out-of-court statement.  See United States v.
DiCaro, 772 F.2d 1314, 1325-1328 (7th Cir. 1985), cert. denied, No.
85-1007 (Mar. 24, 1986);  United States v. Baker, 722 F.2d 343,
347-349 (7th Cir. 1983), cert. denied, 465 U.S. 1037 (1984);  United
States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983);  Vogel v.
Percy, 691 F.2d 843, 845-848 (7th Cir. 1982);  United States v.
Distler, 671 F.2d 954, 959 (6th Cir.), cert. denied, 454 U.S. 827
(1981);  United States v. Rogers, 549 F.2d 490, 498-500 (8th Cir.
1976), cert. denied, 431 U.S. 918 (1977);  United States v. Infelice,
506 F.2d 1358, 1363 (7th Cir. 1974), cert. denied, 419 U.S. 1107
(1975);  see also People v. Green, 3 Cal.3d 981, 92 Cal. Rptr. 494,
479 P.2d 998 (1971), cert. dismissed, 404 U.S. 801 (1971);  Van Hatten
v. State, 666 P.2d 1047 (Alaska App. 1983);  but see State v. Lomax,
227 Kan. 651, 608 P.2d 959 (1980).

   We agree with Justice Harlan (California v. Green, 399 U.S. at 188)
that the in-court testimony of a witness under oath and in the
presence of the accused satisfies the Confrontation Clause, regardless
of whether that witness has suffered a loss of memory.  /5/ Eliciting
on cross-examination that the witness cannot remember key facts in
dispute does not undercut the defendant's right of cross-examination;
to the contrary, it is difficult to imagine cross-examination that is
more productive than where a defense attorney demonstrates a witness's
failure to recall crucial information.  By physically producing the
witness, the government has done everything within its power to enable
the defense to confront the witness and attempt to show why he should
not be believed.  Because the witness is present in court, the jury
can observe his demeanor and assess his credibility.  Nothing in the
history or purpose of the Confrontation Clause suggests that it was
designed to prohibit in-court testimony by a witness who cannot recall
some of the facts at issue.  See generally Green, 399 U.S. at 179
(Harlan, J., concurring) (Confrontation Clause was designed "to
constitutionalize a barrier against flagrant abuses, trials by
anonymous accusers, and absentee witnesses");  Mattox v. United
States, 156 U.S. 237, 242 (1895) (purpose of Confrontation Clause is
to prevent use of depositions or ex parte affidavits in lieu of
cross-examination).

   In any event, this is not a case in which the witness recalls
virtually nothing of relevance regarding his prior statement or the
underlying events.  Foster, who testified at great length on both
direct and cross-examination (2 Tr. 71-131), specifically recalled,
inter alia:  (i) various details leading up to the assault;  (ii) how
he was struck on the head with a metal object;  (iii) the precise
injuries he suffered from the assault;  and (iv) how he jammed his
finger into his assailant's chest (see 2 Tr. 81-96, 100).  Most
importantly, he recalled vividly his hospital visit by Mansfield in
which he identified respondent as his assailant, and he recalled
telling Mansfield that he "jammed (his) finger into Owens' chest" (2
Tr. 96-97).

   In those areas where Foster had in fact suffered a memory loss,
defense counsel brought out the failure of his recollection in
painstaking detail.  And the defense was given wide latitude to
impeach Foster with various inconsistent statements he had purportedly
made to hospital personnel, as well as the remark he had made to Agent
Mansfield in which he mentioned a name other than respondent's (2 Tr.
108-198, 113-114).  The extensive and productive cross-examination
enabled the defense to argue in summation that Foster's own testimony
demonstrated that he had not seen his assailant but had made his
pretrial identification based on what someone else had told him (7 Tr.
59-66).  In short, the defense was able to "probe and expose" Foster's
memory loss and to "call( ) to the attention of the fact finder the
reasons for giving scant weight to the witness' testimony." Fensterer,
slip op. 6-7.  The Confrontation Clause requires no more.  /6/

   c. The Ninth Circuit's decision in this case, if permitted to
stand, would have serious adverse implications for another, closely
related, class of out-of-court statements:  memoranda or records
offered for admission under the past recollection recorded exception
to the hearsay rule (Fed. R. Evid. 803(5)).  Courts have consistently
found no Confrontation Clause violation in the admission of statements
satisfying that exception, even though the exception expressly
requires that the witness have "insufficient recollection to enable
him to testify fully and accurately * * * ." See, e.g., United States
v. Riley, 657 F.2d 1377, 1385 n.13 (8th Cir. 1981), cert. denied, 459
U.S. 1111 (1983);  United States v. Marshall, 532 F.2d 1279, 1285 n.4
(9th Cir. 1976);  United States v. Smalls, 438 F.2d 711, 714 (2d
Cir.), cert. denied, 403 U.S. 933 (1971);  United States v. Kelly, 349
F.2d 720, 770 (2d Cir. 1965), cert. denied, 384 U.S. 947 (1966).  If
the Ninth Circuit is correct that the Confrontation Clause requires
that a witness recall not only the making of the out-of-court
statement, but also the facts contained within the statement, that
exception to the hearsay rule could be subject to serious
constitutional challenge.  While the court of appeals did not purport
to address statements falling within that or other similar exceptions
to the hearsay rule, its Confrontation Clause analysis would appear,
at minimum, to subject statements falling into those categories to a
case-by-case analysis to determine the reliability of the statements
in each instance (see App., infra, 18a-20a).  Because the court's
Confrontation Clause analysis has grave implications for the
admissibility of any out-of-court statement in which the declarant has
little or no present recollection of the facts asserted in the
statement, review is warranted on this ground as well.

   2. The court of appeals' decision also raises an important question
under the Federal Rules of Evidence.  In addition to determining that
the introduction of Foster's identification of respondent violated the
Confrontation Clause, the court also held (App., infra, 9a-11a) that
the evidence was improperly admitted under Fed. R. Evid. 801(d)(1)(C).
 The court's ruling is contrary to both the language and purpose of
Rule 801(d)(1)(C), and it is inconsistent with decisions of other
courts of appeals construing that Rule under analogous circumstances.
Moreover, since the provisions governing prior inconsistent statements
(Rule 801(d)(1)(A)) and prior consistent statements (Rule
801(d)(1)(B)) use the same pertinent language, the effect of the
court's decision is not limited simply to pretrial statements of
identification.

   a. Under Rule 801(d)(1)(C), a prior statement of identification is
categorized as nonhearsay when "(t)he declarant testifies at the trial
or hearing and is subject to cross examination concerning the
statement" (emphasis added).  That language is not even arguably
ambiguous;  there is no mention of any requirement that the witness be
subject to cross-examination concerning the "subject matter" of the
statement.  A comparison with the language in Fed. R. Evid. 804(a) is
particularly instructive.  Rule 804(a), which adopts numerous
exceptions to the hearsay rule based upon the declarant's
"unavailability as a witness," defines "unavailability" to include
situations in which the witness "testifies to a lack of memory of the
subject matter of his statement" or "persists in refusing to testify
concerning the subject of his statement." Fed. R. Evid. 804(a)(2) and
(3) (emphasis added).  As one commentator has observed, "(h)ad there
been an intention in (Fed. R. Evid.) 801(d)(1) to require the witness
to be cross-examinable concerning the matter asserted in his
statement, Rule 804(a) demonstrates that the framers had the language
to do it." 4 D. Louisell & C. Mueller, Federal Evidence Section 421,
at 213-214 n.64 (1980);  see also id. Section 419, at 179-180.  Under
the plain language of Rule 801(d)(1)(C), a witness's inability to
recall the events to which a pretrial identification relates should
not preclude the admission of evidence of that identification.  /7/

   The court of appeals' construction of Rule 801(d)(1)(C) is at odds
not only with the plain language of the Rule but with its purpose as
well.  In 1975, shortly after the adoption of the Federal Rules of
Evidence, Congress amended Rule 801(d)(1) by adding a new Subsection
(C) to permit the introduction of prior out-of-court identifications.
See 4 Louisell & Mueller, supra, Section 410, at 46-47;  H.R. Rep.
94-355, 94th Cong., 1st Sess. 2-3 (1975).  In discussing the purpose
of the proposed amendment, the House Report observed (id. at 3) that
out-of-court identifications were "particularly important in
jurisdictions where there may be a long delay between arrest or
indictment and trial." It noted (ibid.) that "(a)s time goes by, a
witness' memory will fade and his identification will become less
reliable." The proposed Rule therefore was designed to "(make) sure
that delays in the criminal justice system do not lead to cases
falling through because the witness can no longer recall the identity
of the person he saw commit the crime." Ibid.; accord S. Rep. 94-199,
94th Cong. 1st Sess. 2 (1975);  121 Cong. Rec. 31867 (1975);  United
States v. Lewis, 565 F.2d 1248, 1251 (2d Cir. 1977), cert. denied, 435
U.S. 973 (1978);  United States v. Marchand, 564 F.2d 983, 996 (2d
Cir. 1977), cert. denied, 434 U.S. 1015 (1978);  4 Louisell & Mueller,
supra, Section 421, at 205.  The court of appeals' decision totally
undermines this legislative intent.

   b. The court of appeals' reasoning is at odds with the construction
of Rule 801(d)(1)(C) adopted by other circuits that have addressed the
issue.  In United States v. Lewis, supra, the Second Circuit held
that, even though a witness could not make an in-court identification,
her prior out-of-court identification was nonetheless admissible under
the Rule.  The court noted (565 F.2d at 1252) that the witness was
able to recall her prior identification and to testify about the
circumstances of that identification.  The court then observed (ibid.)
that "(i)t seems clear both from the text and the legislative history
of the amended Rule that testimony concerning extra-judicial
identifications is admissible regardless of whether there has been an
accurate in-court identification." Accord United States v. Ingram, 600
F.2d 260, 261 & n.* (10th Cir. 1979) (although witnesses did not
identify defendant at trial, prior identification held admissible
under Rule 801(d)(1)(C) because the witnesses "were available at trial
and were subjected to thorough cross-examination concerning their
out-of-court identification statements");  cf. United States v.
O'Malley, 796 F.2d 891, 899 (7th Cir. 1986) (although government
witness at trial recanted prior identification of defendant and denied
that he participated in crime, prior out-of-court identification held
admissible under Rule 801(d)(1)(C) because witness "was subject to
cross-examination concerning his earlier statement made before
trial").

   Under the interpretation of the Rule 801(d)(1)(C) consistently
adopted by courts prior to this case, it is clear that the district
court was correct in admitting Foster's pretrial identification of
respondent.  Although Foster suffered a partial memory loss with
regard to the assault itself, his recollection of the pretrial
identification was vivid.  Since Foster was subject to unimpeded
cross-examination "concerning (his) statement," the requirements of
Rule 801(d)(1)(C) were satisfied.

   c. The court of appeals' analysis has implications that extend well
beyond the context of prior identifications.  The requirement that the
declarant be subject to cross-examination "concerning the statement"
also applies to prior inconsistent statements (Rule 801(d)(1)(A)) and
prior consistent statements (Rule 801(d)(1)(B)).  Under the Ninth
Circuit's rationale, the admission of those kinds of statements would
likewise be improper unless the witness is also subject to
cross-examination on the "subject matter of the statement." Again,
there is nothing in the language or purposes of Subsections (A) and
(B) of Rule 801(d)(1) to support that interpretation.  But unless the
Ninth Circuit's analysis of the language of Rule 801(d)(1) is
corrected, the court's decision in this case will cause confusion not
only with respect to Rule 801(d)(1)(C), but also with respect to
statements offered under the other two subdivisions of Rule 801(d)(1).
 For that reason as well, the Court should grant certiorari in this
case to review the court of appeals' analysis of the federal
evidentiary rule permitting the admission of prior statements by a
witness.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   ROBERT H. KLONOFF

      Assistant to the Solicitor General

   JOHN F. DE PUE

      Attorney

   DECEMBER 1986

   /1/ At the commencement of the trial, respondent's attorneys
objected to the introduction of evidence concerning Foster's
out-of-court identification.  They stated that when they interviewed
Foster, he said he could not recall the identity of his assailant and
could not remember why he told Mansfield that it was respondent.  They
argued that Foster therefore was not subject to cross-examination
concerning his out-of-court identification.  12/12/83 Tr. 26-33;  1
Tr. 5-6.  The district court overruled the objection and denied
respondent's motion for a hearing concerning Foster's present
recollection (1 Tr. 3-6).  The court of appeals stated (App., infra,
7a n.4) that the government's offer or proof differed substantially
from Foster's testimony at trial, and it suggested that Foster's
memory loss was in fact far worse than the offer of proof had
indicated.  In fact, however, the offer of proof was accurate, as
respondent conceded below (Owens C.A. Br. 7).

   /2/ Judge Boochever indicated (App., infra, 24a-25a), however, that
he would remand the case to the district court for a determination
under Fed. R. Evid. 602 whether Foster had personal knowledge of the
identity of his assailant.

   /3/ In Green, a minor named Porter had informed the police that
Green supplied him with drugs.  At trial, Porter claimed that he could
not recall the identity of his supplier.  The Court upheld the
admission of Porter's preliminary hearing testimony at trial because
Porter was sworn and subject to cross-examination at the prior
proceeding.  However, the Court remanded the case to the California
Supreme Court on the question whether there was error in admitting
Porter's out-of-court statement to the police, noting that it was
premature for the Court to decide "(w)hether Porter's apparent lapse
of memory so affected Green's right to cross-examine as to make a
critical difference in the application of the Confrontation Clause * *
* " (399 U.S. at 168).  On remand, the California Supreme Court
concluded that Porter's statement to the police was properly admitted
because Porter testified at trial under oath, was subject to
cross-examination, and the jury was able to observe his demeanor.
People v. Green, 3 Cal. 3d 981, 92 Cal. Rptr. 494, 479 P.2d 998, cert.
dismissed, 404 U.S. 801 (1971).

   /4/ The court of appeals asserted (App., infra, 18a) that Justice
Harlan repudiated his approach in Green a year later in Dutton v.
Evans, 400 U.S. 74, 93-100 (1970).  That characterization seriously
misreads Justice Harlan's position in those two cases.  In Evans,
Justice Harlan indicated that he was retreating from his suggestion in
Green that the government has an obligation to produce witnesses who
are reasonably available.  His revised view was that the Confrontation
Clause simply gives a defendant an opportunity to cross-examine those
witnesses who are actually produced by the government, and that the
admission of hearsay where the declarant is not produced should be
evaluated under a due process standard of fundamental fairness.  That
view 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.

   The court of appeals also asserted that this Court rejected Justice
Harlan's approach in a footnote in Ohio v. Roberts, 448 U.S. 56, 66
n.9(1980) (App., infra, 18a).  The cited footnote in Roberts, however,
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 had 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 Fensterer, a post-Roberts case, the Court (slip op.
6) left open whether a witness's memory loss could ever amount to a
Confrontation Clause violation.  And the Ninth Circuit, in another
case, has explicitly stated that Roberts did not decide the memory
loss issue discussed by Justice Harlan in Green (Thomas v. Cardwell,
626 F.2d 1375, 1385 n.33 (1980), cert. denied, 449 U.S. 1089 (1981)).

   /5/ Our position assumes, of course, that the scope of
cross-examination has not been impermissibly restricted by the trial
court.  Cf. Delaware v. Van Arsdall, No. 84-1279 (Apr. 7, 1986);
Davis v. Alaska, 415 U.S. 308 (1974).  In addition, it assumes that
the witness does not assert his Fifth Amendment privilege or otherwise
refuse to testify.  Cf. Mayes v. Sowders, 621 F.2d 850 (6th Cir.),
cert. denied, 449 U.S. 922 (1980);  United States v. Fiore, 443 F.2d
112 (2d Cir. 1971), cert. denied, 410 U.S. 984 (1983).  Finally, it
assumes that the witness is able to understand the proceedings.
Obviously, producing a witness who is physically or mentally impaired
to the point that he cannot engage in a question and answer dialogue
would be no different from failing to produce the witness at all.

   /6/ The court of appeals' finding of a Confrontation Clause
violation because of a witness's memory loss is particularly
disturbing in the context of this case.  As the evidence at trial
demonstrated (2 Tr. 133-170), and as the defense concedes (Owens C.A.
Br. 6 n.1), Foster's memory loss was caused by the assault itself.
And the Ninth Circuit, in finding that the violation of Fed. R. Evid.
801(d)(1)(C) was harmless, essentially concluded that there was
substantial independent evidence -- wholly apart from Foster's
pretrial identification of respondent -- that respondent committed the
assault (App., infra, 12a).  Yet it is well established that "when
confrontation becomes impossible due to the actions of the very person
who would assert the right, logic dictates that the right has been
waived." United States v. Thevis, 665 F.2d 616, 630 (5th Cir.), cert.
denied, 456 U.S. 1008 (1982).  Accord, e.g., Reynolds v. United
States, 98 U.S. 145, 158 (1878);  Steele v. Taylor, 684 F.2d 1193,
1201-1203 (6th Cir. 1982), cert. denied, 460 U.S. 1053 (1983);  Black
v. Woods, 651 F.2d 528, 531-532 (8th Cir.), cert. denied, 454 U.S. 847
(1981).  In this case, putting aside Foster's pretrial identification,
there is still a preponderance of evidence -- or even clear and
convincing evidence -- linking respondent to the assault (see Steele,
684 F.2d at 1202 (applying preponderance standard);  Thevis, 665 F.2d
at 631 (applying clear and convincing standard)).  Given the strong
independent evidence demonstrating that respondent caused Foster's
loss of memory, it would be "contrary to public policy, common sense,
and the underlying purpose of the Confrontation Clause" to allow him
to prevail on his Confrontation Clause claim.  United States v.
Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976), cert. denied, 431 U.S.
914 (1977).

   /7/ When a witness testified to a memory loss concerning the prior
statement itself, some courts have held that, if the memory loss is
selective or apparently feigned, the prior statement may nonetheless
be admitted under Rule 801(d)(1).  See, e.g., DiCaro, 772 F.2d at
1323-1325;  United States v. Baker, 722 F.2d at 347-348 & n.8.
Similarly, in enacting Rule 801(d)(1)(C), Congress contemplated that,
when a witness makes a pretrial identification of the defendant and
then, because of fear, refuses to acknowledge that identification in
court, his prior statement should nonetheless be admissible through
third parties.  See United States v. Elemy, 656 F.2d 507, 508 (9th
Cir. 1981) (citing 121 Cong. Rec. 31866-31867 (1975)).  The present
case does not raise either of those issues, however, since Foster had
a full recollection of his statement to Mansfield.

   APPENDIX