SUPREME COURT OF THE UNITED STATES

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No. 93-5256

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FREDEL WILLIAMSON, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eleventh circuit

[June 27, 1994]

Justice Ginsburg , with whom Justice Blackmun, Further, the Court recognizes the untrustworthiness of statements implicating another person. Ante, at 6. A person arrested in incriminating circumstances has a strong incentive to shift blame or downplay his own role in comparison with that of others, in hopes of receiving a shorter sentence and leniency in exchange for cooperation. For this reason, hearsay accounts of a suspect'sstatements implicating another person have been held inadmissible under the Confrontation Clause. See Lee v. Illinois, 476 U.S. 530, 541 (1986) ("when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross examination"); ibid. (" `[T]he arrest statements of a co defendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a co defendant's statements about what the defendant said or did are less credible than ordinary hearsay evidence.' ") (quoting Bruton v. United States, 391 U.S. 123, 141 (1968) (White, J., dissenting)).

Unlike Justice O'Connor, however, I conclude that Reginald Harris' statements, as recounted by DEA Special Agent Donald E. Walton, do not fit, even in part, within the exception described in Rule 804(b)(3), for Harris' arguably inculpatory statements are too closely intertwined with his self serving declarations to be ranked as trustworthy. Harris was caught red handed with 19 kilos of cocaine--enough to subject even a first time offender to a minimum of 12½ years' imprisonment. See United States Sentencing Commission, Guidelines Manual §2D1.1(c) (1993); id., ch. 5, pt. A (sentencing table). He could have denied knowing the drugs were in the car's trunk, but that strategy would have brought little prospect of thwarting a criminal prosecution. He therefore admitted involvement, but did so in a way that minimized his own role and shifted blame to petitioner Fredel Williamson (and a Cuban man named Shawn).

Most of Harris' statements to DEA Agent Walton focused on Williamson's, rather than Harris', conduct. Agent Walton testified to the following: During a brief telephone conversation shortly after he was apprehended, Harris said he had obtained 19 kilos of cocaine for Williamson from a Cuban man in Fort Lauderdale,Florida; he stated that the cocaine belonged to Williamson, and was to be delivered to a dumpster in the Atlanta area that evening. App. 37. Harris repeated this story to Agent Walton when the two spoke in person later in the day. Harris also said that he had rented the car a few days earlier and had included Williamson's name on the rental contract because Williamson was going to be in the Fort Lauderdale area with him. Id., at 38-39. After Agent Walton sought to arrange a controlled delivery, Harris retracted the story about the dumpster, saying it was false.

Harris' second account differed as to collateral details, but he continued to paint Williamson as the "big fish." Harris reported that he was transporting the cocaine to Atlanta for Williamson. When the police stopped Harris' car, Williamson was driving in front of him in another rented car. After Harris was stopped, Williamson turned around and pulled over to the side of the road; from that vantage point, he observed the police officer inspecting the contents of Harris' trunk. Id., at 40-41. And, Harris repeated, "the arrangements for the acquisition and the transportation had been made by Mr. Williamson." Id., at 41.

To the extent some of these statements tended to incriminate Harris, they provided only marginal or cumulative evidence of his guilt. They project an image of a person acting not against his penal interest, but striving mightily to shift principal responsibility to someone else. See United States v. Sarmiento Perez, 633 F. 2d 1092, 1102 (CA5 1981) ("[The declarant] might well have been motivated to misrepresent the role of others in the criminal enterprise, and might well have viewed the statement[s] as a whole--including the ostensibly disserving portions--to be in his interest rather than against it.").

For these reasons, I would hold that none of Harris' hearsay statements were admissible under Rule804(b)(3). ^[n.*] The trial judge characterized Agent Walton's testimony as "very damning." App. 50. The prosecutor considered it so prejudicial that she offered to join defense counsel's motion for a mistrial should the trial court determine that the hearsay statements had been erroneously admitted. Id., at 51 ("If the [trial] Court determines that it has been improper for [Agent Walton] to say those statements, then the Court must of necessity declare a mistrial, because there is no way they can remove what . . . they have heard that Reginald Harris said about Fredel Williamson, and the Government will join in the [defense counsel's] motion [for a mistrial], because I think that would be a burden no one could overcome in the 11th Circuit."). I concur in the Court's decision to vacate the Court of Appeals' judgment, however, because I have not examined the entire trial court record; I therefore cannot say the Government should be denied an opportunity to argue that the erroneous admission of the hearsay statements, in light of the other evidence introduced at trial, constituted harmless error. See Fed. Rule Crim. Proc. 52(a); Kotteakos v. United States, 328 U.S. 750, 776 (1946) (error requires reversal of criminal conviction if it is "highly probable that the error had substantial andinjurious effect or influence in determining the jury's verdict").

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Notes

* Nor could any of Harris' hearsay statements be admitted under Rule 801(d)(2)(E), which provides that statements made "by a coconspirator of a party during the course and in furtherance of the conspiracy" are not hearsay. The trial judge initially appeared to base his ruling admitting the statements on the co conspirator rule. See App. 34-36; id., at 47 ("I let it in as a co conspirator statement."). The prosecutor, however, "agree[d] with [defense counsel] totally" that "[they are] not . . . statement[s] in furtherance of the conspiracy"; Agent Walton's testimony, she explained, was "not offered under [the co conspirator] exception," but under Rule 804(b)(3). App. 47. I do not read the Court's opinion, ante, at 9, n. *, to suggest that the hearsay statements in this case could have been admitted under Rule 801(d)(2)(E).