
    Eugene HOWELL, Petitioner, v. UNITED STATES, Respondent.
    No. 68 C 1995.
    United States District Court N. D. Illinois, E. D.
    May 1, 1969.
    
      Harvey Silets, Chicago, Ill., for petitioner.
    Thomas A. Foran, U. S. Atty., N. D. Ill., for.the United States.
   MEMORANDUM OPINION

Petition for Writ of Habeas Corpus

MAROVITZ, District Judge.

This is a petition for writ of habeas corpus, 28 U.S.C. § 2255, wherein petitioner seeks to have vacated a 1964 conviction for conspiracy to violate the narcotics law, 21 U.S.C.' § 174. Petitioner was tried before a jury, convicted, and sentenced to twelve years imprisonment. Judgment was affirmed on appeal, United States v. Owens, 346 F.2d 329 (7th Cir. 1965), cert. denied 382 U.S. 878, 86 S.Ct. 163, 15 L.Ed.2d 119 (1965). Petitioner is presently incarcerated in the Federal Penitentiary, Terre Haute, Indiana.

Petitioner has already filed a petition to vacate his conviction alleging that he was mentally incompetent during his trial because of his use of drugs and that certain statements which were admitted at trial were made involuntarily and should not have been admitted. Judge Decker rejected both contentions. Howell v. United States, 282 F.Supp. 246 (N.D.Ill.1968). An appeal is presently pending from that decision.

In the instant action, petitioner contends that the recent decision of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), made retroactive by Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), sets forth the rule that in a joint trial any out of court statement of an alleged co-conspirator which implicates another co-conspirator is inadmissible even if a cautionary instruction would be given by the court. He suggests that the guarantee of the Sixth Amendment to the United States Constitution that an accused “be confronted with the witnesses against him,” as expounded in Bruton, was denied to him at his trial.

The Bruton decision, however, is not as expansive as petitioner would have us believe. In overruling Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1956), Bruton held that, at a joint trial, the introduction into evidence of a co-defendant’s incriminating extrajudicial statements may violate a defendant’s right to confrontation and cross-examination. Given the particular factual circumstances of the case, the Supreme Court concluded that the cautionary instructions given by the judge to the jury with respect to disregarding the implicating statements were ineffective and could not overcome the great risk that defendant’s case would be prejudiced because the jury would or could not follow the instructions. The risk of prejudice was so substantial that the Court held the defendant was denied his right to confrontation. 391 U.S. 123, 127-128, 88 S.Ct. 1620.

The Bruton decision then, does not say that all hearsay is inadmissible as to all co-conspirators. Rather, it hinges on two key points: one, that the incriminating hearsay statement “was clearly inadmissable against (defendant) under traditional rules of evidence” and two, that the trial court’s instructions could not overcome the risk of prejudice to defendant. 391 U.S. at 128, 88 S.Ct. at 1624. The court emphasized that

“There is not before us * * * any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.” Id.

Secondly, it recognized that in some cases the error of admitting inadmissible hearsay will not be reversible error because a court’s limiting instructions will be easily understood and followed. Id. at 135, 88 S.Ct. 1620. See, e. g., Frazier v. Cupp. 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (April 22, 1969); United States v. Levinson, 405 F.2d 971, 988 (6th Cir. 1968); United States v. Catino, 403 F.2d 491, 496 (2d Cir. 1968).

It is the first of these two points which distinguishes petitioner’s case from the Bruton decision. Petitioner was indicted on a conspiracy charge. Under the general rule, one co-conspirator’s declarations in furtherance of the conspiracy are admissible against his co-conspirators. Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953); Krulewiteh v. United States, 336 U.S. 440, 444, 69 S.Ct. 716, 93 L.Ed. 790 (1952); Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 116-117, 68 S.Ct. 947, 82 L.Ed. 1245 (1948) ; United States v. United States Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Evans v. Dutton, 400 F.2d 826, 831 (5th Cir. 1968); United States v. Battaglia, 394 F.2d 304, 313 (7th Cir. 1968); United States v. Sapperstein, 312 F.2d 694, 698 (4th Cir. 1963). This hearsay exception has been accepted for a long while. Clune v. United States, 159 U.S. 590, 593, 16 S.Ct. 125, 40 L.Ed. 269 (1895); Mattox v. United States, 156 U.S. 237, 243-244, 15 S.Ct. 337, 39 L.Ed. 409 (1895); Logan v. United States, 144 U.S. 263, 308-309, 12 S.Ct. 617, 36 L.Ed. 429 (1892) ; United States v. Gooding, 25 U.S. (12 Wheat.) 460, 468-470, 6 L.Ed. 693 (1827). Consequently, and in contrast to the statements which were admitted in Bruton, the hearsay statements in the instant case were, under the traditional rules of evidence, admissible against petitioner.

The Supreme Court in Bruton gave no indication, and we think none is warranted, that evidence admitted under a hearsay exception necessarily violates the Sixth Amendment confrontation clause. While the right to confrontation is framed as an absolute, the right has always been seen in its historical relation with and as an integral aspect of the general rule against the admission of hearsay evidence. McCormick, Evidence §§ 19, 223-25, 231 (1954); 5 Wigmore, Evidence §§ 1364-71, 1395-1418 (3d ed. 1940) (hereafter Wigmore). Semerjian, The Right of Confrontation, 55 A.B.A.J. 152 (1969); Comment, Federal Confrontation: A Not Very Clear Say on Hearsay, 13 U.C.L.A.L.Rev. 366, 372 (1966); Comment, Preserving the Right to Confrontation — A New Approach to Hearsay Evidence in Criminal Trials, 113 U. Pa.L.Rev. 741, 746 (1965).

Historically indistinguishablé from and the essence of the right of confrontation is the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 418-419, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1964); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1964); 5 Wigmore § 1395. Now because “(t)he right to subject opposing testimony to cross-examination is the right to have the Hearsay rule enforced,” and because the hearsay rule admits of exceptions, Professor Wigmore concludes that

“(t)he rule sanctioned by the Constitution is the Hearsay rule as to cross-examination, with all the exceptions that may legitimately be found, developed, or created therein.” Id. § 1397. cratic Society, Students for a Restructured University, Student Afro-American Society, Hamilton Hall Steering Committee. Also records showing the extent and nature of assistance of any type rendered during this period of time by any agency of the United States Government or by any legal entity exempt by United States law from taxation, to any student or other person whose name is provided in compliance with the terms of this subpoena.”

While it has been said that “the Supreme Court has never fully articulated federal standards required by the confrontation clause in a hearsay evidence context,’-’ Comment, supra, 113 U.Pa.L. Rev. 741, 744, it has, on several occasions, more than alluded to the relationship. In Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934), Justice Cardozo recognized that “the privilege of confrontation at (no) time (has) been without recognized exceptions * * Regarding the right and these recognized exceptions, the purpose of the confrontation clause of the Sixth Amendment, “this court often has said, is to continue and preserve that right, and not to * * * disturb the exceptions.” Salinger v. United States, 272 U.S. 542, 548, 47 S.Ct. 173, 175, 71 L.Ed. 398 (1926). Specifically discussing the conspiracy exception to the hearsay rule, the Supreme Court, in Delaney v. United States, 263 U.S. 586, 590, 44 S.Ct. 206, 68 L.Ed. 462 (1924), held that the conspiracy exception did not deny a defendant his right of confrontation.

Thus, because the Court in Bruton explicitly disclaimed any adverse inference as to the viability of recognized exceptions to the hearsay rule under the confrontation clause, because the Court has always recognized the admissibility of some hearsay exceptions, Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1964), because the conspiracy exception is a well established rule often invoked by the Court, and because the Court has, at least on one occasion, held that that specific hearsay exception is not in conflict with the confrontation clause, we must reject petitioner’s claim that an implicating hearsay of a co-conspirator is inadmissible.

Petitioner also attacks his conviction by asserting that his right of confrontation was denied in that at the time each of the out of court statements was alleged to have been made, petitioner had, as a matter of law, withdrawn from the conspiracy. The indictment in this case charged that the conspiracy started on November 1, 1962, and continued to May ,5, 1963. On February 14, 1963, petitioner and a co-conspirator, Robert Owens, were arrested by Pennsylvania state police for a traffic violation on the Pennsylvania Turnpike. Eventually, heroin was discovered in petitioner’s possession, and he was charged by state authorities with illegal possession of narcotics. Petitioner ultimately pleaded guilty to the state charge, was fined, and given probation. He now- contends that this state arrest constituted a withdrawal from the federal crime of conspiracy and that his statements following his arrest and the statements which co-conspirators made with reference to the arrest of petitioner and Owens were inadmissible.

While the law is clear that an “arrest or incarceration may constitute a withdrawal from a conspiracy, it does not follow that in every instance it must.” United States v. Agueci, 310 F.2d 817, 839 (2nd Cir. 1962), cert. denied Guippone v. United States, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1962). In most of the cases to which petitioner refers as examples of situations wherein an arrest did constitute a withdrawal from a conspiracy, the arrest was for the crime of conspiracy. Gay v. United States, 322 F.2d 208, 209 (10th Cir. 1963); Cleaver v. United States, 238 F.2d 766, 768 (10th Cir. 1956); United States v. Cohen, 197 F.2d 26 (3d Cir. 1952). However, in the instant case, as in United States v. Agueci, 310 F.2d 817, 838 (2nd Cir. 1962), the arrest which is said to have constituted withdrawal from the conspiracy was not for the crime of conspiracy, but for another violation. As possession of narcotics and conspiracy to violate the narcotics statutes are separate and distinct crimes, Id. at 828, an arrest for violation of a state narcotics possession charge does not logically constitute withdrawal from a conspiracy in violation of federal law. Thus, it cannot be said that petitioner withdrew from the conspiracy until he was arrested in early May, 1963, in Chicago, Illinois, on the federal conspiracy charge.

Finally, under the standard phrasing of the co-conspiracy exception, to be admissible, the incriminating statements must be in furtherance of the conspiracy. Commentators now recognize that the furtherance requirement is rarely literally applied to restrict admissible evidence to those statements which were made to advance the conspiracy, but is generally invoked to include any statement of a co-conspirator which is relevant to the conspiracy and is made during the course of the conspiracy. Comment, The Hearsay Exception for Co-conspirators’ Declarations, 25 U.C.L. Rev. 530, 531 n. 5 (1958). The Uniform Rules of Evidence, Rule 63(9) (b) adopts such a position. The statements about which petitioner complains were made while the conspiracy plan was still in existence. Even under a literal view of the furtherance doctrine, it is clear that the incriminating statements made by co-conspirators were in furtherance of the conspiracy in that they were made to explain delays in consummating transactions or to lend moral support to a potential seller. The statements were admissible as to petitioner.

The petition for writ of habeas corpus is denied.  