U.S. v. Myers

• Citation: 892 F.2d 642
• Decision Date: 04 January 1990
• Docket Number: No. 88-2349,88-2349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kellie J. MYERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 642

892 F.2d 642

UNITED STATES of America, Plaintiff-Appellee, v. Kellie J. MYERS, Defendant-Appellant.

No. 88-2349.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 23, 1989.

Decided Jan. 4, 1990.

Dennis J. Dimsey, Thomas E. Chandler, Dept. of Justice, Civ. Rights Div., Appellate Section, Daniel P. Butler, Dept. of Justice, Civ. Rights Div., Washington, D.C., for plaintiff-appellee.

John A. Walters, Griffith, Ind., F. Allen Tew, Jr., Indianapolis, Ind., for defendant-appellant.

Kellie J. Myers, pro se.

Before CUDAHY, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

In 1988 a jury convicted Kellie Myers of conspiracy to interfere with the federal right (conferred by 42 U.S.C. § 3631(a)) to occupy a home without regard to one's race, 18 U.S.C. § 241, and of related offenses. The judge sentenced her to four years in prison.

Four years earlier, the car of a black couple who had just bought a home in Hobart, Indiana had been torched while parked outside the couple's home. Kellie Myers lived with her parents in Hobart. The government's evidence, if believed, established the following additional facts. Myers' parents wanted to sell their home and were concerned that its value would be impaired if there were blacks living in the neighborhood. Myers decided to scare the black couple into leaving, and together with Randall Neal bought two gallons of gasoline at an all-night gas station and set fire to the car. The black couple took the hint and moved away. Neal was prosecuted for arson in an Indiana state court, but acquitted, after which the criminal section of the Justice Department's civil rights division swung into action and charged both him and Myers, whom the state had not prosecuted, with federal crimes. Neal was tried with Myers, also convicted, and also sentenced to four years.

Myers denied any complicity in the fire. At the trial, a fingerprint expert testified that the fingerprints on a can of Stroh's beer found at the scene of the fire were Neal's, and in passing mentioned that he had also tested (unsuccessfully) for the presence of Myers' fingerprints because Meg McBrayer, a friend of Neal's, had implicated Myers. McBrayer testified to having seen Neal and Myers together the night of the fire. She also testified to a conversation which she had had with Neal, shortly after the fire, in which he had told her that he and "another person" had bought a can of gasoline on the night of the fire and had then gone to the neighborhood of the other person and torched a black man's car because the other person's parents were worried about property values. The other person was of course Myers. But her trial counsel, Martin Kinney, had objected before trial to the admission of this testimony, and to accommodate his objection the government had agreed that McBrayer would not mention Myers by name but instead would refer to her only as "another person."

The gas-station attendant, Ronald Siwy, testified that more than a year after the fire he had identified Myers from a photograph as the woman who on the night of the fire had paid for two gallons of gas and bought two packs of cigarettes while her male companion was pumping the gas into a can that he had brought with him.

Neal took the stand, denied participating in the crime, and in an effort to shift the blame to Myers testified that on the night of the fire, before they separated after drinking together at a bar, she had handed him the Stroh's can on which his fingerprints were later found.

Except for McBrayer's further testimony that Myers asked her not to tell the police anything about the night of the fire, the evidence we have summarized was all the evidence there was against Myers, and she questions the admissibility of much of it. To begin with, she questions the admissibility against her of Neal's statement to McBrayer. It was of course admissible against him, as an admission by an opposing party, Fed.R.Evid. 801(d)(2)(A), but the rule is explicit that such an admission is inadmissible against anyone else. An admission against interest, Fed.R.Evid. 804(b)(3) is not so cabined. The unlikelihood that a person would make a false admission against interest (would, for example, confess to a crime) makes admissions against interest sufficiently reliable to escape the bar of the hearsay rule, and if reliable they should be admissible against anyone to whom they pertain. But an admission against interest, unlike the admission of an opposing party, is admissible only if the declarant is unavailable to testify. Fed.R.Evid. 804(a). Neal was available; he testified. (The statement might have been admissible under this rule as part of the government's case in chief despite Neal's taking the stand, if when the government put in its case it could have made a showing that Neal would take the Fifth Amendment and refuse to testify. That would make him unavailable. But this is not argued; the government admits that the statement was inadmissible against Myers.)

Myers argues that Neal's statement should have been excluded from the joint trial altogether, or alternatively that (1) she should have been granted a severance, or (2) the statement should have been edited more carefully so that the identity--or even existence--of the "other person" was not transparent, Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987), or (3), at the very least, the jury should have been instructed that the statement was admissible only against Neal, and not against her. She points out that in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court had thought that the improper admission into evidence of a codefendant's confession that incriminated the defendant was so damaging as to be incurable by a limiting instruction. See also Gaines v. Thieret, 846 F.2d 402 (7th Cir.1988) (per curiam). The government responds that Kinney (Myers' counsel at trial) did not request a severance, that he requested a cautionary instruction but did not respond to the judge's request to submit one, and that any objection based on Bruton is obviated because both McBrayer and Neal testified and were therefore available for Myers to cross-examine.

The government is correct that Kinney's defaults are pertinent. Because of them, any error in the handling of Neal's statement is reversible only if plain, that is, only if, had it not been for the error, Myers probably would have been acquitted. Johnson v. United States, 805 F.2d 1284, 1290 (7th Cir.1986); United States v. Wolf, 787 F.2d 1094, 1098 (7th Cir.1986).

The government's argument from Bruton presents a complicated issue. Although Bruton was a federal prosecution, its principal significance is in habeas corpus cases brought by state prisoners. The Bill of Rights does not enact the hearsay rule, California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970), but does entitle a criminal defendant (including, by virtue of the Fourteenth Amendment, a state criminal defendant) to confront the witnesses against him. The principles that animate the hearsay rule intersect those that animate the confrontation clause in cases in which a defendant cannot confront his accuser because the accuser is an out-of-court declarant not available to testify. Nelson v. Farrey, 874 F.2d 1222, 1226-28 (7th Cir.1989). Bruton identified a class of hearsay evidence--the out-of-court confession of an unavailable codefendant that directly implicates the defendant--the admission of which is deemed so injurious to the right of confrontation that it violates the confrontation clause. And in a surprising, though realistic, Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., concurring); United States v. Bozza, 365 F.2d 206, 214-15 (2d Cir.1966) (Friendly, J.); Nash v. United States, 54 F.2d 1006 (2d Cir.1932) (L. Hand, J.), departure from the usual view (or fiction) that limiting instructions cure everything, the Court held that this type of constitutional violation was not so easily cured. But if as here the codefendant (the out-of-court declarant) testifies, the defendant can confront him all he likes, and there is no violation of the Sixth Amendment. United States v. Mitchell, 778 F.2d 1271, 1273 n. 1 (7th Cir.1985).

The Constitution to one side, however, hearsay is inadmissible in federal criminal trials unless within one of the exceptions enumerated in the Federal Rules of Evidence. This rule might seem to have the same practical effect as Bruton. But probably it does not. United States v. Mitchell, supra, 778 F.2d at 1273 n. 1, assumes that limiting instructions retain their potency when the only objection to the codefendant's (Neal's) confession is that it is inadmissible hearsay as to the other defendant (Myers). And since Neal's statement was admissible against Neal himself, the admission of the statement in his and Myers' joint trial cannot automatically be assumed to have been improper. On the contrary, we may assume that if severance was properly denied, if Neal's statement could not have been further edited to disguise the reference to Myers without becoming misleading or confusing, and if the jury had been instructed to consider the statement only in reference to Neal's guilt or innocence, Myers could not complain; the statement would not have been admitted against her.

None of these conditions was fulfilled, however. The jury was allowed to consider inadmissible, and very damaging, hearsay evidence in deciding whether Myers was guilty--indeed, the jury was invited to do so by the government's closing argument, as we shall see. The judge did instruct the jury to "leave[e] out of consideration any evidence admitted solely against the other defendant," but he did not tell the jury which evidence had been admitted solely against one defendant rather than against both. The responsibility for the...