RANDALL PAUL SCHEETS, PETITIONER V. UNITED STATES OF AMERICA
No. 91-6142
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. A1-A5) is unreported,
but the judgment is noted at 940 F.2d 670 (Table).
The judgment of the court of appeals was entered on July 19, 1991.
The petition for a writ of certiorari was filed on October 15, 1991.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
Whether the district court erred in refusing to instruct the jury
that a defendant charged with bank robbery, 18 U.S.C. 2113(a), may be
found guilty of bank larceny, 18 U.S.C. 2113(b), as a lesser included
offense.
After a jury trial in the United States District Court for the
Southern District of California, petitioner was convicted of robbing a
federally insured credit union, in violation of 18 U.S.C. 2113(a). He
was sentenced to 30 months' imprisonment, to be followed by three years'
supervised release. The court of appeals affirmed. Pet. App. A1-A5.
1. The evidence at trial showed that on February 1, 1988, petitioner
entered the North Island Federal Credit Union in San Diego, California.
He approached a teller, put a bag on the counter, and told the teller to
put all of her money into the bag. The teller, who was unable to see
petitioner's hands after he put the bag on the counter, complied, and
petitioner left the credit union with $2,529. See Gov't C.A. Br. 6-7.
At the conclusion of trial, petitioner asked the court to instruct the
jury, pursuant to Rule 31(c), Fed. R. Crim. P., that a defendant charged
with bank robbery, 18 U.S.C. 2113(a), may be found guilty of bank
larceny, 18 U.S.C. 2113(b), as a lesser included offense. The district
court refused to give that instruction, and the jury convicted
petitioner of bank robbery. Pet. App. A4.
2. The court of appeals affirmed. Pet. App. A1-A5. It rejected
petitioner's arguments that the district court erred in admitting
certain similar act evidence, id. at A1-A4, and in refusing to grant a
mistrial based on statements that the prosecutor made in closing
argument, id. at A4-A5. The court of appeals also rejected petitioner's
argument that the district court erred in refusing to instruct the jury
that it could convict petitioner of bank larceny as a lesser included
offense of bank robbery. Relying on its prior decision in United States
v. Gregory, 891 F.2d 732 (1989), the court held that "bank robbery does
not necessarily include bank larceny as a lesser included offense"
because "bank larceny involves a specific intent element that is not an
element of bank robbery." Pet. App. A4.
1. Rule 31(c) of the Federal Rules of Criminal Procedure provides in
relevant part: "The defendant may be found guilty of an offense
necessarily included in the offense charged." Petitioner argues that
bank robbery, 18 U.S.C. 2113(a), "necessarily include(s)" bank larceny,
18 U.S.C. 2113(b), and that the district court was therefore obligated
to instruct the jury that he could be convicted of bank larceny as a
lesser included offense. Pet. 3-9. Petitioner's argument is without
merit.
This Court has determined that a trial court's obligation under Rule
31(c) to give a "lesser included offense" instruction turns on an
"elements" test. Schmuck v. United States, 489 U.S. 705, 716 (1989).
"Under this test, one offense is not 'necessarily included' in another
unless the elements of the lesser offense are a subset of the elements
of the charged offense." Ibid. "Where the lesser offense requires an
element not required for the greater offense, no instruction is to be
given under Rule 31(c)." Ibid. In this case, bank larceny is not
"necessarily included" within the offense of bank robbery, because the
larceny offense includes an element that is absent from the robbery
offense.
The federal offense of bank robbery (unlike bank larceny) has among
its elements the taking of money or property by "force and violence" or
"intimidation," while the federal offense of bank larceny (unlike bank
robbery) has among its elements a specific "intent to steal or purloin."
/1/ Bank robbery and bank larceny each contain an element not found in
the other, and hence -- as the court of appeals and the district court
properly recognized -- a Rule 31(c) instruction would be inappropriate.
Pet. App. A4. See Gregory, 891 F.2d at 734; United States v. Brown,
547 F.2d 36, 38-39 (3d Cir. 1976), cert. denied, 431 U.S. 905 (1977);
United States v. Klare, 545 F.2d 93, 94 (9th Cir. 1976), cert. denied,
431 U.S. 905 (1977); United States v. Johnston, 543 F.2d 55, 57-58 (8th
Cir. 1976); United States v. DeLeo, 422 F.2d 487, 490-491 (1st Cir.),
cert. denied, 397 U.S. 1037 (1970).
Petitioner argues (Pet. 5-6) that the court of appeals' analysis is
at odds with the decisions in United States v. Carter, 540 F.2d 753,
754-755 (4th Cir. 1976), and United States v. Combs, 634 F.2d 1295, 1296
(10th Cir. 1980). In Carter, the court concluded that a defendant who
was charged with bank robbery was entitled to have the jury instructed
on the lesser included offense of bank larceny, while in Combs, the
court held that a defendant could not be punished under both Sections
2113(a) and 2113(b), because the latter is a lesser included offense of
the former. The analyses contained in those decisions, however, predate
(and are inconsistent with) Schmuck, where this Court set out the
specific test that governs the question. /2/
Given this Court's recent decision in Schmuck -- together with the
Ninth Circuit's decision in Gregory that applied the "elements" test to
the offenses of bank robbery and bank larceny -- there is no need for
the Court to resolve the supposed conflict that petitioner presents.
This Court can reasonably anticipate that the courts of appeals will
properly follow its guidance and thereby resolve any residual
disagreement among their pre-Schmuck decisions. Indeed, the Court
recently denied a petition for a writ of certiorari in another case
presenting the same claim of conflict. See Waterman v. United States,
No. 90-7439, cert. denied, October 7, 1991.
2. Petitioner also contends (Pet. 6-7) that the court of appeals
erred in holding that bank robbery is a general intent, as opposed to a
specific intent, crime. Nothing in Section 2113(a), however, requires
the government to prove that a defendant acted with specific intent;
instead, the statute is satisfied if the defendant acts with the general
criminal intent to commit a robbery. See United States v. Lewis, 628
F.2d 1276, 1279 (10th Cir. 1980), cert. denied, 450 U.S. 924 (1981);
United States v. Brown, 547 F.2d at 38-39; United States v. Johnston,
543 F.2d at 58; United States v. DeLeo, 422 F.2d at 491. Thus, the
decision of the court of appeals is correct.
Petitioner asserts (Pet. 6-7), however, that the decisions in United
States v. Howard, 506 F.2d 1131, 1133 (2d Cir. 1974); Hamilton v.
United States, 475 F.2d 512, 515 (6th Cir. 1973), and Caples v. United
States, 391 F.2d 1018, 1022-1023 (5th Cir. 1968), conflict with the
decision of the court of appeals on that point. Although Hamilton and
Caples have been criticized for holding that bank robbery is a specific
intent crime, see Johnston, 543 F.2d at 58, neither case so holds.
Hamilton instead involved the question whether the district court had
properly instructed the jury on the defendant's insanity defense. The
court did not address the issue of whether the bank robbery statute
requires specific intent. In Caples, the district court instructed the
jury that specific intent was required to violate the bank robbery
statute, but the court of appeals did not address that issue. Howard
simply states that bank robbery must be committed with a "wrongful
intent, that is knowingly and willfully." 506 F.2d at 1133. That
statement falls short of an express holding that bank robbery is a
specific intent crime. Moreover, the court in Howard failed to identify
any language in the statute that supported its statement. Accordingly,
there is no conflict among the courts of appeals, and review is not
warranted.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
J. DOUGLAS WILSON
Attorney
DECEMBER 1991
/1/ Section 2113(a) imposes criminal liability on
(w)hoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or
obtains or attempts to obtain by extortion any property or money
or any other thing of value belonging to, or in the care, custody,
control, management, or possession of, any bank, credit union, or
any savings and loan association * * *.
Section 2113(b), on the other hand, imposes criminal liability on
(w)hoever takes and carries away, with intent to steal or
purloin, any property or money or any other thing of value
exceeding $100 belonging to, or in the care, custody, control,
management, or possession of any bank, credit union, or any
savings and loan association * * *.
/2/ Petitioner also claims (Pet. 5) that the court of appeals'
decision conflicts with the Eighth Circuit's decision in United States
v. Cady, 495 F.2d 742, 747-748 (1974). In that case, however, the court
held that Sections 2113(a) and (b) were lesser included offenses of
Section 2113(d), not that Section 2113(b) is a lesser included offense
of Section 2113(a). And contrary to petitioner's assertion (Pet. 6),
the decision here does not conflict with the First Circuit's decision in
United States v. Henson, 945 F.2d 430 (1991). That case did not address
whether bank larceny is a lesser included offense of bank robbery;
instead, the court stated only that "(t)he principal difference between
bank robbery, under 18 U.S.C. Section 2113(a), and bank larceny, under
18 U.S.C. Section 2113(b), is that bank larceny does not include the
elements of 'force and violence or * * * intimidation.'" 945 F.2d at
440.
JOSE ANTONIO CABALLERO, PETITIONER V. UNITED STATES OF AMERICA
No. 91-6139
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1a-9a) is reported at
936 F.2d 1292.
The judgment of the court of appeals was entered on June 21, 1991.
On September 3, 1991, the Chief Justice granted an extension of time to
and including October 19, 1991, to file a petition for a writ of
certiorari, and the petition was filed on October 18, 1991. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Whether petitioner was seized within the meaning of the Fourth
Amendment when a police officer approached him outside a bus terminal,
asked if he could question petitioner, and obtained petitioner's consent
to a search of his bag.
2. Whether the district court correctly held that petitioner
voluntarily consented to the search of his bag.
Following a jury trial in the United States District Court for the
District of Columbia, petitioner was convicted on one count of
possessing more than 50 grams of cocaine base with intent to distribute
it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 121
months' imprisonment, to be followed by five years' supervised release.
The court of appeals affirmed petitioner's conviction, but remanded for
resentencing. Pet. App. 1a-9a.
1. The evidence, summarized in the opinion of the court of appeals,
established that on the night of November 29, 1989, a drug interdiction
task force composed of District of Columbia police officers was
stationed at the Greyhound bus station in Washington, D.C. Their
practice was to question travelers arriving from cities known to be
sources of narcotics. Officer Brennan, a member of the task force, was
waiting at the station at about 10 p.m. when a bus arrived from New
York, a source city. Officer Brennan was dressed in casual clothes and
carried a concealed weapon. Pet. App. 3a.
After petitioner disembarked from the New York bus and reached the
sidewalk outside the bus terminal, Officer Brennan approached him.
Officer Brennan identified himself as a police officer and asked
petitioner if he would answer some questions. Petitioner did not
object. Brennan asked to see his bus ticket, petitioner complied, and
the ticket confirmed that petitioner had arrived from New York City.
Brennan then asked petitioner where he was staying in Washington, and
petitioner said he would be staying with an aunt. Officer Brennan asked
if petitioner was carrying any narcotics; petitioner replied that he
was not. Then the officer asked if he could search petitioner's bag.
Although petitioner testified that he did not agree to the search of the
bag, the district court credited Officer Brennan's testimony that
petitioner answered "yes" and handed Officer Brennan the bag. The
officer looked in the bag and noticed a box of Cheese Nips inside.
Unlike other such boxes Officer Brennan had seen, however, this one
seemed to be filled to the top and inflexible. Officer Brennan asked if
he could open the box, and petitioner again consented. Hidden among the
crackers in the box Officer Brennan found a package of white powder,
which was later determined to be cocaine. Officer Brennan placed
petitioner under arrest. Pet. App. 3a.
2. In a motion to suppress the cocaine, petitioner argued that he had
been illegally seized by Officer Brennan and that he had not voluntarily
consented to the search of his bag. The district court denied the
motion, finding that petitioner had not been seized before the cocaine
was found and that petitioner had consented to the search of his bag.
Referring to the question of consent to search, the court remarked that
"it's simply a matter of credibility." The court stated that it found
the officer's version of the events more credible than petitioner's
version, and that "the defendant, for whatever reason, agreed to have
him search the bag." Pet. App. 3a.
3. The court of appeals agreed that the encounter that occurred here
was very similar to many others in which it had found that no seizure
had occurred. Pet. App. 4a-5a. The court also rejected petitioner's
claim that the district court had failed to use the proper legal
analysis in concluding that he had consented to the search of his bag.
The court of appeals determined that although the district court had not
used the word "voluntary" or cited the factors set out in Schneckloth v.
Bustamonte, 412 U.S. 218 (1973), the district court had in fact
"address(ed) the circumstances of the consent and concluded, by
necessary implication if not expressly, that the consent was voluntarily
granted." Pet. App. 6a.
1. Petitioner claims that the court of appeals erred in finding that
he was not seized in violation of the Fourth Amendment. Pet. 8-16. He
argues that the decision below conflicts with decisions of this Court
and with those of other courts of appeals. In fact, the decision in
this case is entirely consistent with the teachings of this Court and
the decisions of other circuits.
a. Using the familiar test from decisions of this Court as to when a
seizure is judged to have occurred, petitioner argues that in the
circumstances of this case a reasonable person would not have felt "free
to leave." E.g., Florida v. Bostick, 111 S. Ct. 2382 (1991); California
v. Hodari D., 111 S. Ct. 1547 (1991); Michigan v. Chesternut, 486 U.S.
567 (1988). It is clear, however, that "no seizure occurs when police
ask questions of an individual, ask to examine the individual's
identification, and request consent to search his or her luggage -- so
long as the officers do not convey a message that compliance with their
requests is required." Florida v. Bostick, 111 S. Ct. at 2388.
Officer Brennan did not covey any message that compliance was
required. Acting alone, dressed in plainclothes, and carrying no
visible weapon, Officer Brennan approached petitioner outside a bus
station on a public sidewalk, asked to speak with him, and obtained his
consent to answer some questions. The officer did not touch petitioner,
give him any order, or threaten him; nor did the officer block
petitioner's path or use any physical intimidation to suggest that
petitioner was not free to go on his way. There was neither "physical
force" nor a "show of authority," Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968), to indicate that petitioner's liberty was in some way
restrained. This case is so similar to numerous other cases in which no
seizure was found that it cannot be characterized as inconsistent with
the settled standards of this Court for determining when a seizure has
taken place. See, e.g., Florida v. Bostick, supra; Michigan v.
Chesternut, supra; Florida v. Rodriguez, 469 U.S. 1 (1984); INS v.
Delgado, 466 U.S. 210 (1984); United States v. Lee, 916 F.2d 814 (2d
Cir. 1990); United States v. Maragh, 894 F.2d 415 (D.C. Cir.), cert.
denied, 111 S. Ct. 214 (1990); United States v. Blake, 888 F.2d 795
(11th Cir. 1989); United States v. Galberth, 846 F.2d 983 (5th Cir.),
cert. denied, 488 U.S. 865 (1988); United States v. Campbell, 843 F.2d
1089 (8th Cir. 1988); United States v. Notorianni, 729 F.2d 520, 523
(7th Cir. 1984).
b. Petitioner claims that he was seized at the point when Officer
Brennan explained that "he was part of the drug interdiction unit and
that he wanted to know whether (petitioner) was carrying illegal drugs."
Pet. 13. At that point, he argues, Officer Brennan had implicitly
informed petitioner that he was a suspect in a drug investigation, so
that petitioner would then reasonably have concluded that he was no
longer free to go. Petitioner cites two decisions from the Fifth and
Seventh Circuits, United States v. Gonzales, 842 F.2d 748 (5th Cir.
1988), and United States v. Palen, 793 F.2d 853 (7th Cir. 1986), in
which he says similar statements were held to transform consensual
encounters into illegal seizures. And he points out that the court of
appeals in this case referred to those cases, noting that it had
previously disagreed with the holdings of those decisions. See Pet.
App. 4a-5a.
In fact, the decision below does not conflict with either of those
cases. In United States v. Gonzalez, supra, the court said that a
seizure took place when the officers informed the defendant that they
were "working narcotics" and asked to search her bag, since under the
circumstances that was tantamount to informing the woman that she was
suspected of illegal activity. 842 F.2d at 752. But the court did not
hold that a seizure would always occur on account of such statements;
instead, it made clear that its finding was based on the totality of the
circumstances in the case before it. And in that case, the defendant
was cornered in an otherwise empty baggage claim area by two officers
much larger than she, and she had already been caught in a lie when they
asked to search her bag. Id. at 750. The court went on to find that
the seizure was not illegal because the officers had reasonable
suspicion by the time the encounter became a detention. Id. at 753-754.
In other cases decided by the same court, where there were no other
coercive circumstances, the mere statement by agents that they were
narcotics officers was not enough to convert a consensual encounter into
a seizure. United States v. Galberth, 846 F.2d at 985, 990; United
States v. Smith, 649 F.2d 305, 308-309 (5th Cir. 1981), cert. denied,
460 U.S. 1068 (1983).
In United States v. Palen, supra, the court relied on its prior
decision in United States v. Borys, 766 F.2d 304, 309 (7th Cir. 1985),
cert. denied, 474 U.S. 1082 (1986), in which the court held that a
seizure occurred when "the agents informed a defendant that he was
suspected of trafficking in narcotics," 793 F.2d at 857. Before
upholding the conviction at issue on the ground that the officers had
reasonable suspicion to stop the defendant, the court in Palen concluded
that when an officer "informed defendant he was conducting a drug
investigation" the officer in effect told the defendant that the
investigation had focused on him. 793 F.2d at 857. In this case, in
contrast, Officer Brennan said that he was a member of a drug
interdiction unit, but he did not suggest that he was conducting an
investigation that had focused on petitioner.
In any event, if the decisions of the Fifth and Seventh Circuits are
read to conflict with the decision of the court of appeals in this case,
they have been superseded by this Court's decision in Florida v.
Bostick, supra. In that case, two police officers, after inspecting the
defendant's ticket, "persisted and explained their presence as nacotics
agents on the lookout for illegal drugs" before "request(ing) the
defendant's consent to search his baggage." 111 S. Ct. at 2385, quoting
554 So. 2d 1153, 1154-1155 (1989). The Court said that "(t)here is no
doubt that if this same encounter had taken place before Bostick boarded
the bus or in the lobby of the terminal, it would not rise to the level
of a seizure." 111 S. Ct. at 2386. Thus, it is clear that officers do
not seize a person merely by identifying themselves as narcotics
officers and asking for permission to conduct a search.
The "no seizure" finding in this case is also consistent with this
Court's decision in INS v. Delgado, supra. In that case, which involved
the questioning of factory workers by immigration officials, this Court
held that the questioning did not implicate the Fourth Amendment even
where the request to examine immigration papers followed an assertion by
the worker that he was legally in this country. The Court explained
that the conduct of the agents gave the workers no reason to believe
that they would be detained if they refused to answer the questions
posed by the agents. 466 U.S. at 218. The Court rejected the workers'
argument that the manner of questioning "created a psychological
environment which made them reasonably afraid they were not free to
leave," holding instead that the encounters between the factory workers
and the INS agents "were classic consensual encounters rather than
Fourth Amendment seizures." Id. at 220-221. The same is true here.
Officer Brennan did not seize petitioner when he asked permission to
search petitioner's bag after petitioner denied that he had any drugs.
c. Petitioner also relies on a statement by a district court in
another case suggesting that the District of Columbia's drug
interdiction unit has a policy of using a traveler's refusal to
cooperate as an indication of guilt and a basis for detaining the
traveler. Pet. 15. In light of that policy, petitioner argues, no
reasonable traveler would feel free to break off an encounter with
officers from the District of Columbia drug interdiction unit. There
was no evidence of any such policy in this case, however. In fact,
there was no such evidence in the case on which petitioner relies.
Moreover, the court of appeals in that case reversed the district
court's holding that a seizure had occurred. The court of appeals
specifically found both that there was no evidence that passengers
believed that their refusal to cooperate would be used against them, and
that the law is clear that such a refusal may not lawfully be used to
detain a traveler. United States v. Lewis, 921 F.2d 1294, 1299-1300
(D.C. Cir. 1990); see also Florida v. Bostick, 111 S. Ct. at 2387 ("as
the Solicitor General correctly observes, an individual may decline an
officer's request without fearing prosecution").
Petitioner further claims that because an overwhelming number of
travelers choose to cooperate with the District of Columbia drug
interdiction unit, the travelers must not feel free to leave. Pet.
15-16. Actually, that shows nothing other than that the average citizen
is quite willing to cooperate with the police. And there is no reason
why "an innocent person," Florida v. Bostick, 111 S. Ct. at 2388, would
not agree to the minor inconvenience occasioned by such cooperation.
2. Petitioner also claims that the court of appeals validated the
district court's error in confusing the issue of the voluntariness of
petitioner's consent to the search with the issue of whether he had been
seized. Pet. 16-19. According to petitioner, the district court failed
to consider information that was clearly relevant to the voluntariness
question, and focused only on the factors that inform the seizure
analysis. But the court of appeals specifically addressed that claim,
and it determined that the district court had indeed employed the
correct standard. The court of appeals explained, Pet. App. 6a: "While
it is true that the trial court did not use the word 'voluntary' or tick
off the Schneckloth factors, it is nonetheless clear that the trial
court did address the circumstances of the consent and concluded, by
necessary implication if not expressly, that the consent was voluntarily
granted." The court of appeals noted that there is in fact some overlap
in the factors that are used to decide the two different issues, and it
concluded that because the district court expressly found that no
coercion was used to detain petitioner, it necessarily reached the same
conclusion with regard to the same issue as it relates to the
voluntariness question. Id. at 5a-6a.
The court of appeals then reviewed for itself all of the relevant
factors bearing on the question of the voluntariness of petitioner's
consent, including his age and education, any sense of coercion he may
have felt as a result of Officer Brennan's conduct, and Officer
Brennan's failure to tell him specifically that he need not consent.
The court concluded that the district court correctly held that
petitioner's consent was voluntary because the facts presented here
would support no other conclusion. Pet. App. 5a-7a.
3. Finally, petitioner suggests that this case warrants review
because it raises a concern about the possibility that officers focus on
particular travelers because of their race. Pet. 19-21. Petitioner
admits that he did not pursue any claim of racial discrimination in the
district court. Id. at 19-20. In the absence of the development of a
factual record and findings from the lower courts, this case is not an
appropriate one for this Court to consider that issue.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
KATHLEEN A. FELTON
Attorney
DECEMBER 1991
RONALD WHITAKER, PETITIONER V. UNITED STATES OF AMERICA
No. 91-6122
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1-4) is reported at
938 F.2d 1551. The opinion of the district court (Pet. App. 469-478) is
unreported.
The judgment of the court of appeals was entered on July 16, 1991.
The petition for a writ of certiorari was filed on October 15, 1991 (a
Tuesday following a Monday holiday). The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
Whether petitioner waived his right to testify in his own defense
when he failed to bring to the court's attention his supposed desire to
testify.
Following a jury trial in the United States District Court for the
Northern District of New York, petitioner was convicted of conspiracy to
distribute cocaine, in violation of 21 U.S.C. 846, and conspiracy to
import cocaine, in violation of 21 U.S.C. 963. He was sentenced to 211
months' imprisonment.
1. The evidence at trial showed that petitioner was a party to a
scheme to import cocaine from Colombia, South America, to the Albany,
New York, area. Petitioner, an experienced pilot, was to fly a small
airplane to Maine, file a flight plan showing intended travel from Maine
to Albany, and use his airplane as a decoy for the Colombian aircraft
that was to arrive in Albany with the cocaine. Pet. App. 469-470; see
Gov't C.A. Br. 3-9.
The principal evidence against petitioner was elicited through the
testimony of Douglas Jaworski, an informant who had been involved with
the Colombian drug smugglers. The government also introduced
documentary and eyewitness evidence placing petitioner in Maine at the
time in question, as well as taperecorded conversations implicating
petitioner in the scheme. Pet. App. 469-470; Gov't C.A. Br. 3-9.
2. Petitioner was represented at trial by Samuel Burstyn, a retained
attorney with extensive experience in representing criminal defendants
accused of drug offenses. Pet. App. 471 & n.1, 473. Near the end of
the government's case-in-chief, during a charge conference conducted in
petitioner's presence but outside the presence of the jury, Burstyn
informed the district court that he had "nothing to put on" and planned
to rest without introducing any evidence. C.A. App. 213. The court
then advised the attorneys that it intended to charge the jury in its
"own language with respect to defendant not taking the stand." C.A. App.
217. When the jury returned, Burstyn rested without calling any
witnesses to testify, and the court told the jurors that the testimony
was completed. C.A. App. 222. The jury found petitioner guilty. C.A.
App. 312.
3. After trial, petitioner discharged Burstyn, obtained new counsel,
and moved for a new trial, claiming, among other things, that Burstyn
had prevented him from testifying in his own defense. /1/ Attached to
the motion was an affidavit executed by petitioner, in which he stated
that he had told Burstyn before and during his trial that he wanted to
testify, but that Burstyn had "rested without consulting (him) or giving
(him) the opportunity to testify." C.A. App. 401-402, 404-405, 408.
Also attached was a post-trial letter from Burstyn to petitioner, in
which Burstyn stated that "I do regret ordering you not to testify in
the case. Somehow I now think that I should have acceded to you(r)
requests to testify." C.A. App. 409.
4. The district court denied petitioner's motion. Pet. App. 469-478.
The court rejected petitioner's claim that Burstyn had refused to
permit him to testify despite his expressed desire to do so, stating
that "(w)ith both Burstyn's and the defendant's extensive backgrounds in
the criminal justice process, it strains credulity to urge that neither
called to the court's attention the now alleged conflict between them as
to defendant's desire to testify." Pet. App. 471. Moreover, the court
held, "(i)f any such dispute did exist, it was Burstyn's obligation to
call the matter to the court's attention, and, once he had failed to do
so, it became the defendant's responsibility to bring the matter to the
court's attention." Ibid. The court concluded that petitioner's claim
that he had been denied his right to testify in his own defense was "a
recent fabrication flowing from (his) dissatisfaction with the jury's
verdict." /2/ Pet. App. 472.
The district court also found that had petitioner testified at his
trial, it was "most unlikely * * * that the verdict in this case would
have been any different." Pet. App. 471. The court noted that
petitioner had 14 prior arrests, nine of which resulted in convictions,
and that the introduction of petitioner's criminal history through
impeachment on cross-examination "would have clearly undermined his
credibility." Pet. App. 471 & n.2. Moreover, the court stated, it
"would have been difficult" for petitioner to "explain() satisfactorily
the evidence linking him to these conspiracies." Pet. App. 471. /3/
5. In the court of appeals, petitioner renewed his claim that his
attorney's failure to call him as a witness at his trial deprived him of
his constitutional right to testify in his own behalf. See Pet. C.A.
Br. 20-34. The court of appeals affirmed petitioner's convictions,
finding his arguments "without merit." /4/ Pet. App. 4.
Petitioner renews his contention (Pet. 6-12) that he was deprived of
his constitutional right to testify in his own defense. The courts
below correctly rejected that claim. It is well established that a
criminal defendant has a constitutional right to testify in his own
defense at trial. See Rock v. Arkansas, 483 U.S. 44, 49-53 (1987);
Faretta v. California, 422 U.S. 806, 819 n.15 (1975); Brooks v.
Tennessee, 406 U.S. 605, 612 (1972). A district court, however, has no
obligation to advise a defendant who is represented by counsel that he
has a right to testify, and no duty to question whether the defendant's
waiver of his right to testify is a knowing and voluntary one. United
States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991); United States v.
Edwards, 897 F.2d 445, 446 (9th Cir.) (court has "'no duty to advise the
defendant of his right to testify, nor is the court required to ensure
that an on-the-record waiver has occurred'") (citation omitted), cert.
denied, 111 S. Ct. 560 (1990); Ortega v. O'Leary, 843 F.2d 258, 261
(7th Cir.) ("courts have no affirmative duty to determine whether a
defendant's silence is the result of a knowing and voluntary decision
not to testify"), cert. denied, 488 U.S. 841 (1988); Siciliano v. Vose,
834 F.2d 29, 30-31 (1st Cir. 1987); United States v. Bernloehr, 833
F.2d 749, 751-752 (8th Cir. 1987); United States v. Janoe, 720 F.2d
1156, 1161 & n.9 (10th Cir. 1983), cert. denied, 465 U.S. 1036 (1984).
Rather, it is "(t)he accused (who) must act affirmatively" to express
his desire to testify. United States v. Systems Architects, Inc., 757
F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847 (1985); United
States v. Bernloehr, 833 F.2d at 752. It follows from these principles
that a defendant waives his right to testify if he fails to assert it at
trial. United States v. Martinez, 883 F.2d 750, 760 (9th Cir. 1989).
The decision whether to testify is, in large part, a matter of trial
strategy. /5/ It is a subject traditionally discussed by counsel and
the client without intervention from the court. For that reason, it is
the responsibility of defense counsel -- and not the trial judge -- to
advise the defendant whether to testify. See United States v. Systems
Architects, Inc., 757 F.2d at 375. The right to testify is therefore
analogous to the right of self-representation or the right to remain
silent at trial, rights that a defendant may forgo simply by declining
to invoke them at trial. See United States v. Martinez, 883 F.2d at
756-759 (collecting cases).
If a non-testifying defendant may remain silent when his attorney
rests the defense case, but then assert his right to testify in a
post-trial motion for a new trial, the principle "that the court has no
duty sua sponte to advise a defendant of his right to testify would be
meaningless." United States v. Edwards, 897 F.2d at 447. "As a
practical matter, courts would be forced to inform defendants of the
right so as to avoid a post-hoc invalidation of the entire trial." Ibid.
Such intervention by the trial judge "could inappropriately influence
the defendant to waive his constitutional right not to testify, thus
threatening the exercise of this other, converse, constitutionally
explicit, and more fragile right." Siciliano v. Vose, 834 F.2d at 30.
Moreover, "a court so advising a defendant might improperly intrude on
the attorney-client relation, protected by the Sixth Amendment." United
States v. Martinez, 883 F.2d at 760. Accordingly, the courts of appeals
have properly held that a district court has no duty to advise a
defendant of his right to testify or to inquire into his decision not to
testify in the absence of some expression by the defendant of a desire
to testify.
In any event, petitioner does not claim that he was unaware of his
right to testify in this case. Despite his purported desire to testify
at trial, petitioner did not object when his lawyer announced outside
the presence of the jury that he intended to rest without calling any
witnesses, or when his lawyer later rested before the jury.
Petitioner's silence in the face of his lawyer's failure to call him as
a witness constituted a waiver of his right to testify.
Although most courts of appeals that have addressed the issue have
reached results consistent with the decision in this case, the recent
decision of the Eleventh Circuit in United States v. Teague, 908 F.2d
752 (1990), opinion vacated and rehearing en banc granted, 932 F.2d 899
(1991), adopted a different approach. In Teague, the defendant
expressed his desire to testify to his counsel, but for tactical reasons
counsel rested the defense case without calling the defendant as a
witness. The defendant did not raise an objection to the court prior to
the submission of the case to the jury; only after the verdict did the
defendant, through counsel, bring to the court's attention his belief
that he had been denied his right to testify. 908 F.2d at 753-755.
After an evidentiary hearing, the district court denied the defendant's
motion for a new trial. The court of appeals reversed, holding that the
defendant had been denied his right to testify. Id. at 761.
The court of appeals in Teague noted that "(t)he district court,
citing the absence of any objection made by Teague on the record at
trial, held that Teague had failed to prove that he had not acquiesced
in the decision to rest the defense without his testimony." 908 F.2d at
759. The court added that "(t)his reasoning was recently adopted by the
Ninth Circuit in United States v. Martinez * * * ((h)olding that
defendant's silence at trial may establish waiver of right to
testify.)." Id. at 759 n.5. The Eleventh Circuit rejected that
approach. Id. at 759. Instead, the court conducted an inquiry into
whether the post-trial hearing record established that the defendant had
personally consented to his counsel's actions in failing to call him as
a witness. Id. at 759-760. Based on that analysis, the panel majority
concluded that although the defendant had not objected at trial, his
right to testify was violated because "despite his continued indications
to (his counsel) during the trial that he wanted to testify, (counsel)
rested his case without consulting him." Id. at 760. Judge Roney
dissented. Id. at 761-763.
Although the division between the Eleventh Circuit and the other
courts of appeals may warrant this Court's attention in an appropriate
case, we do not believe that the Court's intervention is warranted at
present. We filed a petition for rehearing with a suggestion for
rehearing en banc in Teague in which we asked the Eleventh Circuit to
adopt the rule, which prevails in all the other circuits that have
addressed the issue, that a defendant waives his right to testify if he
fails to object at trial. The Eleventh Circuit vacated the panel
opinion and granted rehearing en banc. 932 F.2d 899 (1991). The case
has been argued before the en banc court, which has not yet rendered its
decision. If the court ultimately affirms the judgment of the district
court, the conflict among the circuits will have been resolved without
the need for action by this Court. /6/ In light of the dissent by Judge
Roney, the alignment of circuits against the panel position, and the
conflicting opinions issued on the same question by the former Fifth
Circuit in Wright v. Estelle, 572 F.2d 1071 (5th Cir.) (en banc), cert.
denied, 439 U.S. 1004 (1978), we believe it would be premature for this
Court to grant review of this issue before the Eleventh Circuit decides
whether it intends to continue to be at odds with the other circuits or
to adopt the majority rule.
Review is not warranted here for another reason: petitioner does not
stand to benefit from the legal rule he advocates. First, the record
does not establish that petitioner's counsel declined to call petitioner
as a witness despite petitioner's expressed desire to testify. Rather,
the district court found that it "strain(ed) credulity" to argue that
neither petitioner nor his lawyer "called to the court's attention the
now alleged conflict between them as to defendant's desire to testify."
Pet. App. 471. The court concluded that petitioner's claim that he had
been denied his right to testify in his own defense was "a recent
fabrication flowing from (his) dissatisfaction with the jury's verdict."
Pet. App. 472. See United States v. Bernloehr, 833 F.2d at 752 ("The
defendant may not * * * indicate at trial his apparent acquiescence in
his counsel's advice that he not testify, and then later claim that his
will to testify was 'overcome.'"). /7/ Second, the district court found
in this case that if petitioner had testified at his trial, it was "most
unlikely * * * that the verdict in this case would have been any
different." Pet. App. 471. Through the inevitable impeachment of
petitioner on cross-examination, the jury would have learned of his
extensive criminal history. See Pet. App. 471 & n.2. Moreover, the
court found, it "would have been difficult" for petitioner to "explain()
satisfactorily the evidence linking him to (the charged) conspiracies."
Pet. App. 471. Under these circumstances, any error relating to the
denial of petitioner's right to testify was harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18 (1967); United States v.
Teague, 908 F.2d at 760-761 (applying harmless error analysis).
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
NINA GOODMAN
Attorney
DECEMBER 1991
/1/ While he was still represented by Burstyn, petitioner filed a
motion for new trial, claiming that the district court erred in refusing
to allow Burstyn to interview Jaworski at the close of his direct
testimony. The motion stated that petitioner, "who had specifically
decided to testify in the case subject to what may have been learned in
the interview, declined to do so in fear of what said witness's
testimony might be if put on as a rebuttal witness." Pet. App. 472; see
C.A. App. 364.
/2/ The court observed that petitioner's initial post-trial motion
had indicated that his decision not to testify was based on strategic
considerations. The court also noted that although Burstyn had stated
in a post-trial letter to petitioner that he regretted ordering
petitioner not to testify, Burstyn had refused repeated requests from
petitioner's new counsel that he submit an affidavit to that effect,
apparently "recogniz(ing) the distinction between submitting a letter to
his client and making an affirmative representation to the court." Pet.
App. 472 & n.3.
/3/ The district court also rejected petitioner's claim that he was
entitled to a new trial based upon ineffective assistance of counsel,
finding that Burstyn "zealously and vigorously represented" petitioner
at trial. Pet. App. 473. Moreover, the court concluded, there was "no
question that the jury convicted based upon the substantial evidence
presented at trial." Ibid. Thus, petitioner had "not demonstrated * * *
that (Burstyn's) alleged deficient performance altered the outcome of
the trial." Ibid.
/4/ The court vacated petitioner's sentence and remanded for
resentencing, agreeing with the government that the district court erred
in refusing to sentence petitioner as a career offender under the
Sentencing Guidelines. Pet. App. 1-4.
/5/ Although the decision whether to take the stand has been viewed
as one for the defendant to make personally after receiving the advice
of counsel, see Jones v. Barnes, 463 U.S. 745, 751 (1983); Ortega v.
O'Leary, 843 F.2d at 261; United States v. Martinez, 883 F.2d at
754-755; United States v. Bernloehr, 833 F.2d at 751, the tactical
component of that decision is well recognized. Cf. Wright v. Estelle,
572 F.2d 1071, 1072-1074 (5th Cir.) (en banc) (opinion of Thornberry,
Clark, Roney, Gee, & Hill, JJ., concurring) (decision is a tactical one
for counsel to make), cert. denied, 439 U.S. 1004 (1978).
/6/ Petitioner contends (Pet. 6-9) that the decision in this case
conflicts with the decision of another panel of the Second Circuit in
United States v. Vargas, 920 F.2d 167 (1990). In Vargas, the court
stated in dictum that it "regard(ed) as highly questionable the
proposition that a defendant's failure to object at trial to counsel's
refusal to allow him to take the stand constitutes a waiver of the
defendant's constitutional right to testify on his own behalf." Id. at
170. The court declined to decide the question, however, stating that
it would "leave that issue for another day." Ibid. In any event, even
if the Vargas court had decided the issue presented here and had reached
a result contrary to that reached by the court of appeals in this case,
the case would not be a suitable candidate for this Court's review, as
this Court does not sit to review intra-circuit conflicts. See
Wisniewski v. United States, 353 U.S. 901 (1957).
/7/ Contrary to petitioner's contention (Pet. 10-11), there is no
conflict between the court of appeals' decision here and the decision of
the District of Columbia Court of Appeals in Boyd v. United States, 586
A.2d 670 (1991). The defendant in that case did not testify at her
trial. After the jury returned a guilty verdict, she shouted at her
lawyer that "I told you I wanted to get up there and tell my side." Id.
at 671 & n.3. Defense counsel then informed the trial judge that the
defendant had wanted to testify, but that he had advised her that it
would not be in her interest to do so. Id. at 671. On appeal, the
defendant argued that she had been denied her constitutional right to
testify in her own behalf. The District of Columbia Court of Appeals
declined to decide whether "the trial judge had a sua sponte duty to
conduct a colloquy" with the defendant to ensure that she had knowingly
and voluntarily waived her right to testify. Id. at 677. The court
concluded, however, that "(o)nce the trial judge became aware that (the
defendant) was asserting that she had wanted to testify, the judge had a
duty to determine whether she had made a knowing and intentional
waiver." Ibid. Because it was unclear from the record whether the trial
judge had found that the defendant waived her right to testify and
whether the defendant had in fact waived that right, the court remanded
for an evidentiary hearing. Id. at 677-678. In this case, petitioner
made no objection at trial to his counsel's failure to call him as a
witness; rather, the first time petitioner called to the court's
attention his supposed desire to testify was in his second motion for a
new trial. Under these circumstances, the court concluded that
petitioner's claim that he had wanted to testify but had been prevented
from doing so by his counsel was a "recent fabrication," and that there
had been no violation of petitioner's right to testify.
RICHARD TOMMASI, PETITIONER V. UNITED STATES OF AMERICA
No. 91-6121
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1077-1089) is reported
at 937 F.2d 1077.
The judgment of the court of appeals was entered on June 26, 1991. A
petition for rehearing was denied on September 3, 1991. The petition
for a writ of certiorari was filed on October 16, 1991. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
Whether the evidence was sufficient to support the jury's conclusion
that petitioner did not withdraw from the conspiracy but remained a
member into the statute of limitations period.
Following a jury trial in the United States District Court for the
Eastern District of Michigan, petitioner and three others were convicted
of conspiracy to commit wire fraud, in violation of 18 U.S.C. 371. The
district court sentenced petitioner to a term of 60 months'
imprisonment. The court of appeals affirmed. Pet. App. 1077-1089. /1/
1. In the early 1980's, the federal Bureau of Land Management ("BLM")
leased oil and gas rights on certain public lands through a lottery
system. The parcels involved in the lottery contained no known oil
reserves. BLM posted a list of available parcels every other month and
accepted applications for 15 days. After the application period closed,
BLM randomly selected a winner for each available parcel from the valid
applications. The winner obtained the right to lease the oil and gas
rights on the parcel in question. Pet. App. 1080; Gov't C.A. Br. 3-4.
In 1982, Seymour Adler purchased U.S. Western Oil and Gas (USWOG), a
small "boiler room" or telephone sales operation in south Florida that
purported to assist investors to identify and obtain valuable leases
through the lottery process. Adler hired Joe Lenihan and petitioner to
run the business. /2/ Petitioner and Lenihan recruited salespeople,
wrote "scripts" for them, and managed the office. Petitioner's role was
sales manager; he was primarily responsible for the manner in which
sales were made and for intervening to handle difficult customers.
Within a couple of months, USWOG had two dozen salespeople. Pet. App.
1080; Gov't C.A. Br. 4-5.
The salespeople solicited initial investments of $4,800, and promised
to prepare 12 applications for leases on properties that a geologist had
advised were likely to contain valuable oil and gas reserves and on
which no more than two or three other people were filing applications.
In fact, not even BLM knew how many applications were filed on a
particular parcel until the applications period closed, and USWOG had no
reliable advice as to which properties were valuable. The salespeople
usually told potential customers that other clients had won leases.
They said that, if a USWOG customer won a lease, USWOG would help the
customer negotiate with oil companies and would purchase the lease for a
minimum of $25,000 if no oil company offered more. Very few of the
clients, however, won a drawing, and none of them received the
guaranteed $25,000. Pet. App. 1080; Gov't C.A. Br. 5.
Once they had a substantial number of investors, petitioner and
Lenihan invented a "load" program to solicit additional investments from
their customers. The "load" story usually involved a claim that USWOG
had inside information or, later, that BLM was running a private lottery
for a successor operation to USWOG called Oil and Gas Properties (OGP)
because OGP had helped the agency to uncover fraudulent advisory
services. Pet. App. 1080; Gov't C.A. Br. 5-6.
In the spring of 1983, petitioner and Lenihan complained to Adler
that the way in which USWOG was managed increased the chances that their
fraudulent scheme would be disclosed. When Adler refused to change his
method of operation, petitioner and Lenihan left to form their own
company, National Energy Consultants Corp. (NEC). Lenihan testified at
trial that when he and petitioner left USWOG, he told Adler that he was
prepared to continue in the business with Adler, but that Adler would
have to "change the way in which he was doing things." Tr. 2690.
Evidence at trial indicated that on at least one occasion after Lenihan
and petitioner left USWOG, petitioner came back to the USWOG offices to
propose a business deal with Adler. Tr. 1494.
NEC was a fraudulent boiler room operation modeled on USWOG. NEC
sold an advisory service in connection with the BLM lottery, falsely
advising its clients that the parcels for which it filed applications
were valuable, and using a "load" story based on a false claim of
insider information that was similar to the "load" story used at USWOG.
In addition, NEC adopted a new rule limiting the number of contacts with
prospective clients because petitioner and Lenihan feared tape
recording. Pet. App. 1084; Gov't C.A. Br. 34-35.
In 1984, petitioner entered a partnership called Rich-Wal Energy
(Rich-Wal). He instructed limited partners on how to sell certain oil
investments and offered to handle "takeovers," the management of
suspicious or troublesome customers. A drilling operation and marketing
company the general partners claimed to own consisted only of an
answering service. Speaking of the Rich-Wal operation, petitioner told
an associate that "(a)fter all, it's not our job to steal from each
other, it's our job to steal from the clients." Pet. App. 1084; Gov't
C.A. Br. 34-36.
2. Petitioner was indicted on April 14, 1989. At trial, he objected
to the introduction of evidence of his involvement with NEC and Rich-Wal
subsequent to his departure from USWOG. The district court overruled
that objection. The court explained (Tr. 3029-3030):
It appears that the testimony is highly relevant, it is a similar
act -- a series of similar acts which demonstrate intent which has
been completely put into dispute here by the defense, and it also
demonstrates knowledge, knowledge of how such an operation is
conducted, and (petitioner's evidence) suggest(s) that he never
knew exactly what the crooked operation was that he was involved
in, (and) when he began to get a glimmer of the dishonesty of the
operation immediately severed his connection with it. He knew
apparently in detail how such an operation was to be conducted and
was able to set up an identical operation later on.
3. The court of appeals affirmed. Pet. App. 1077-1089. Petitioner
argued that he withdrew from the conspiracy in 1983, more than five
years before the indictment was filed, and that the statute of
limitations barred his prosecution. The court of appeals found,
however, that there was sufficient evidence from which a reasonable jury
could "conclude that even if (petitioner) had told some other members of
the conspiracy that he renounced the scheme and then ceased contact with
the conspiracy, his subsequent acts (with NEC and Rich-Wal) neutralized
his withdrawal and indicated his continued acquiescence." Pet. App.
1084. Relying on Hyde v. United States, 225 U.S. 347, 371-372 (1912),
the court held that petitioner's state of mind after his purported
withdrawal from the conspiracy was a jury question, and that if the jury
found that petitioner continued to acquiesce in the conspiracy, it could
hold petitioner liable for continued participation in the conspiracy.
Pet. App. 1084-1085. /3/
Judge Wellford dissented. Pet. App. 1088-1089. He would have found
that petitioner withdrew from the conspiracy in March 1983, and that his
subsequent activities with NEC and Rich-Wal, if illegal, should have
been the subject of a separate indictment. Pet. App. 1089.
Petitioner contends (Pet. 10-16) that he withdrew from the conspiracy
more than five years before the indictment was returned, and that his
prosecution was therefore barred by the statute of limitations, 18
U.S.C. 3282. The jury was properly instructed on the defense of
withdrawal, however, and the jury found against petitioner on that
issue. We submit that the evidence was sufficient to support the jury's
finding.
Once a defendant's participation in a conspiracy or other continuing
illegal act is shown, his participation is presumed to continue
throughout the period of unlawful activity, unless the defendant
produces affirmative evidence of withdrawal. Mere cessation of activity
in furtherance of the illegal activity is not enough to establish
withdrawal. See Hyde v. United States, 225 U.S. 347, 369 (1912); /4/
United States v. Branch, 850 F.2d 1080, 1082-1083 (5th Cir. 1988), cert.
denied, 488 U.S. 1018 (1989); United States v. Finestone, 816 F.2d 583,
589 (11th Cir.), cert. denied, 484 U.S. 948 (1987); United States v.
Continental Group, Inc., 603 F.2d 444, 466-467 (3d Cir. 1979), cert.
denied, 444 U.S. 1032 (1980). Rather, withdrawal requires an
affirmative act, inconsistent with the objects of the unlawful scheme,
that disavows or defeats the scheme. That affirmative act, moreover,
must be communicated to the authorities or in a manner reasonably
calculated to reach the co-conspirators. See United States v. United
States Gypsum Co., 438 U.S. 422, 464-465 (1978); Hyde v. United States,
225 U.S. at 369; United States v. Dunn, 758 F.2d 30, 38 (1st Cir.
1985); United States v. James, 609 F.2d 36, 42 (2d Cir. 1979), cert.
denied, 445 U.S. 905 (1980); United States v. Borelli, 336 F.2d 376,
388 (2d Cir. 1964), cert. denied, 379 U.S. 960 (1965).
Petitioner played an important role in devising and implementing the
fraudulent sales scheme at USWOG, a scheme that continued in effect
after petitioner had left that company. For example, he devised sales
pitches for the salesmen, and he helped devise the "load" scheme that
was used after his departure. Petitioner did not in any way disavow
those schemes or report them to the authorities when he left; to the
contrary, he used the same schemes in his new fraudulent boiler room
operations. Because petitioner did nothing to disavow or defeat the
USWOG operation, the impact of his leading role at USWOG continued until
well into 1984, when the USWOG operation finally came to an end. It was
therefore reasonable for the jury to conclude that in light of the
continuing influence of petitioner's activities at USWOG, his
dissociation from that company, merely because of a disagreement over
how most effectively to engineer the objectives of the conspiracy, did
not constitute a withdrawal from the conspiracy. See United States v.
Finestone, 816 F.2d at 590 (dissociation from charged conspiracy
insufficient to show withdrawal); United States v. Dunn, 758 F.2d at 38
(conspirator's disagreement with, and advice against, course of action
in pursuit of conspiracy's goals insufficient to show withdrawal).
What is more, petitioner's departure from USWOG did not constitute a
sharp break with USWOG and its principals. Lenihan, petitioner's
partner in the new boiler room operations, testified that when he left
USWOG he indicated to Alder that he was prepared to continue in the
business if Adler would change his way of doing things, Tr. 2690; in
context, it is clear that Lenihan meant that if Adler would be more
circumspect, he (and presumably petitioner as well) they could resume
doing business with Adler under the name of USWOG or a successor
company. The evidence further showed that petitioner himself had
further dealings with Adler, meeting at least once with him to propose a
business deal with Adler. Tr. 1494. From this evidence, the jury could
well conclude that petitioner's departure from USWOG was not intended as
a final parting of the ways, but that petitioner maintained a continuing
interest in Adler's business fortunes and in the possibility of their
working together again. Petitioner's cessation of involvement in USWOG
is therefore more properly characterized as a hiatus in their joint
activity than a permanent breaking off of relations. In that setting,
the jury was entitled to find that petitioner did not withdraw from the
conspiracy.
The cases cited by petitioner (see Pet. 14) are distinguishable from
this one. Several of petitioner's cases involved low- or middle-level
employees of companies engaged in fraudulent activities, whose
resignation from the company ended their influence in the fraudulent
scheme. See, e.g., United States v. Steele, 685 F.2d 793, 803-804 (3d
Cir.), cert. denied, 459 U.S. 908 (1982); United States v. Goldberg,
401 F.2d 644 (2d Cir. 1968). Departure from the fraudulent company is
more readily equated with withdrawal when the defendant is just a
salesman who simply executed the fraudulent schemes while he was
employed, and whose activities in behalf of the conspiracy had no
continuing effect after his departure. /5/ In none of the cases on
which petitioner relies did the "withdrawing" defendant play a major
role in fashioning the fraudulent scheme and setting in motion
fraudulent activities that would continue long after the defendant
ceased active involvement in the scheme. /6/
The mischief done by petitioner, by contrast, had a continuing impact
after he left USWOG, because absent any effort on his part to defeat or
reveal the fraud, the schemes he put into effect continued to operate to
defraud victims even though petitioner was no longer working at USWOG.
See United States v. Borelli, 336 F.2d at 389. Petitioner, in effect,
was in the same position as a member of an arson gang who supplies the
kerosene for a series of arsons and then drops out of the gang after the
first three fires. Absent any effort to defeat the scheme, such a
person is fairly chargeable with the consequences of his acts, which
include each of the subsequent fires started by the remaining members of
the gang. See Borelli, 336 F.2d at 388 & n.8. The court of appeals was
therefore correct in holding that petitioner failed to establish
withdrawal from the conspiracy as a matter of law.
Petitioner's secondary contention (see Pet. 15-16), that the decision
of the court of appeals will result in the indiscriminate consideration
of "bad acts" evidence, is likewise without merit. Petitioner placed
his state of mind squarely in issue in the district court by claiming
that he was unaware of the illegal nature of the USWOG boiler room
operation. As the district court ruled (Tr. 3029-3030), evidence of
petitioner's subsequent fraudulent activities in connection with NEC and
Rich-Wal, where he sought to do precisely the same thing that USWOG was
doing but to do it more effectively, was highly relevant to the question
of his knowledge and intent at the time he was an active participant in
the USWOG operation. The district court therefore plainly did not err
in admitting that highly probative evidence.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
THOMAS M. GANNON
Attorney
DECEMBER 1991
/1/ Petitioner's co-defendants, Paul Lash, Lawrence Dresner, and
Carol Ross, were convicted along with petitioner, and the court of
appeals affirmed their convictions. Pet. App. 1088. This Court
recently declined to review Ross's conviction. Ross v. United States,
112 S. Ct. 397 (1991).
/2/ Lenihan was charged in the original indictment in this case. He
eventually entered a plea of guilty and testified for the government at
petitioner's trial. See Gov't C.A. Br. 3 & n.1, 34.
/3/ The court of appeals also rejected claims by petitioner and his
co-defendants that their prosecution was barred by the statute of
limitations (Pet. App. 1081-1083), that evidence was improperly admitted
(id. at 1085, 1087), that the jury was improperly instructed on the
defense of withdrawal (id. at 1085), that the jury's verdict was coerced
by a supplemental instruction (id. at 1085-1086), that the district
court improperly failed to give a multiple conspiracy instruction (id.
at 1086-1087), that the district court erred when it overruled an
objection to the order in which the government's witnesses testified
(id. at 1087-1088), that the government prejudicially delayed seeking an
indictment (id. at 1088), and that the prosecutor's rebuttal argument
was improper (ibid.). Petitioner has not sought further review of any
of those claims.
/4/ Petitioner contends (Pet. 12-13) that this Court in United States
v. United States Gypsum Co., 438 U.S. 422, 463-465 (1978), altered the
Hyde test. Petitioner is mistaken. The Court in Gypsum addressed the
question of whether resumption of competitive activity would ever
constitute withdrawal from a price-fixing conspiracy. The Court
concluded that, because such activity could constitute "(a)ffirmative
acts inconsistent with the object of the conspiracy and communicated in
a manner reasonably calculated to reach co-conspirators," it could be
"regarded as sufficient to establish withdrawal." Id. at 465. In
reaching that conclusion, the Court cited Hyde and gave no indication
that it intended to depart in any way from that decision.
/5/ United States v. Read, 658 F.2d 1225 (7th Cir. 1981), involved
only the allocation of the burden of proof on the issue of withdrawal;
it did not alter the test for determining what kinds of acts are
necessary to constitute withdrawal.
/6/ United States v. Nerlinger, 862 F.2d 967 (2d Cir. 1988), applies
the same principle in a slightly different setting. There, the
defendant engaged in a single fraud by using a particular account. The
court of appeals found that his act of closing the account, with the
acquiescence of his co-conspirator, constituted unequivocal evidence of
withdrawal from the conspiracy. His participation had been entirely
through the account, and there was no continuing fraudulent activity
that could be attributed to the withdrawing defendant's conduct. In
this case, by contrast, petitioner was an architect of the fraudulent
scheme, and the effects of his contribution to the fraud did not end
with his departure.
HOM SUI CHING, PETITIONER V. UNITED STATES OF AMERICA
No. 91-6120
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit
Brief For The United States In Opposition
The opinion of the court of appeals, Pet. App. A2-A5, is not
reported, but the judgment is noted, sub nom. United States v. Woo, at
940 F.2d 650 (Table).
The judgment of the court of appeals was entered on June 28, 1991. A
petition for rehearing was denied on July 19, 1991. Pet. App. A1. The
petition for a writ of certiorari was filed on October 16, 1991. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Whether the government breached its plea agreement with
petitioner.
2. Whether petitioner's sentence was improperly based on charges that
were dismissed pursuant to the plea agreement.
On his plea of guilty in the United States District Court for the
Eastern District of New York, petitioner was convicted of conspiracy to
distribute cocaine and to possess cocaine with intent to distribute it,
in violation of 21 U.S.C. 846. He was sentenced to 188 months'
imprisonment and five years' supervised release. The court of appeals
affirmed. Pet. App. A2-A5.
1. At petitioner's plea hearing, the district court read the
indictment to petitioner and determined that he understood the charges
and was pleading guilty knowingly and voluntarily. Petitioner admitted
that he had participated in one of the drug transactions alleged in the
indictment; he did not admit to participating in the two other alleged
drug transactions. /1/ The oral plea agreement between petitioner and
the government was also read into the record. It reflected the parties'
stipulation that petitioner's base offense level under the Sentencing
Guidelines was 28, corresponding to an offense involving between 2.0 and
3.4 kilograms of cocaine. The parties agreed that petitioner would
receive a two point adjustment for acceptance of responsibility, which
would reduce his offense level to 26, and that neither side would seek
an adjustment for petitioner's role in the offense or a departure from
the Guidelines. Petitioner acknowledged that the agreement was not
binding on the district court. Gov't C.A. Br. 3-4.
After petitioner's plea, the Probation Department prepared a
presentence report describing petitioner's role in the three drug
transactions alleged in the indictment. With respect to the two drug
transactions that petitioner had not admitted, the report stated that
petitioner could not be linked to a specific amount of drugs. As to the
third transaction, which petitioner had admitted, the evidence showed
that at least two kilograms of cocaine were involved. The report also
noted that petitioner acknowledged having participated in an illicit
cocaine distribution scheme. Gov't C.A. Br. 4-5.
Prior to sentencing, petitioner objected to the presentence report's
finding that the third transaction involved his agreement to purchase at
least two kilograms of cocaine. He also denied participating in the
other two drug transanctions and further denied having admitted to the
Probation Department that he had participated in the cocaine
distribution scheme. Gov't C.A. Br. 5.
The district court scheduled a hearing to determine the facts with
respect to petitioner's objections to the presentence report. Before
the hearing, the government indicated that, in response to petitioner's
objections, it intended to establish that petitioner conspired to
distribute eight pounds of heroin and that he had agreed to purchase a
multi-kilogram quantity of cocaine. The government argued that the
heroin transaction should be considered to be relevant conduct under
Sentencing Guidelines Section 1B1.3(a)(2), and that petitioner's base
offense level should therefore be 34. Just before the hearing began,
petitioner informed the court that he intended to establish that the
cocaine transaction that formed the basis for his guilty plea involved
less than two kilograms of cocaine and that he was entitled to an
downward adjustment for his role in the offense. Gov't C.A. Br. 5-6.
At the hearing, the government presented numerous wiretap
conversations and an expert witness to show that petitioner had
negotiated with Kwong to purchase a multi-kilogram quantity of cocaine
in 1988 and that he had earlier assisted a co-defendant to sell eight
pounds of heroin. After the government read the parties' stipulation
regarding the quantity of cocaine involved in the instant offense, the
district court asked whether petitioner wished to disavow the
stipulation. Petitioner's counsel replied that "he accepts his plea,"
but argued that despite the stipulation, petitioner did not participate
in a drug transaction involving between 2.0 and 3.4 kilograms of
cocaine. Petitioner testified in his own defense. He denied any role
in the heroin transaction. He admitted asking Kwong to "front" him
cocaine, but testified that he sought to purchase only six ounces. Gov't
C.A. Br. 5-7.
The district court found that the cocaine conspiracy involved at
least two kilograms of cocaine and that petitioner participated in the
eight-pound heroin transaction. The court noted that the heroin
transaction qualified as relevant conduct because it arose from the
"same course of conduct" as the cocaine transaction. In addition,
characterizing petitioner's testimony at the hearing as "blatantly
perjurious," the district court imposed a two-level upward adjustment
for obstruction of justice, and declined to award an two-level downward
adjustment for acceptance of responsibility. Stating that it would not
hold the government to a plea agreement that petitioner had "essentially
abandoned," the court sentenced petitioner to 188 months' imprisonment,
the bottom of the applicable Guidelines range of 188 to 235 months.
Gov't C.A. Br. 7-10.
2. In an unpublished decision, the court of appeals affirmed. Pet.
App. A2-A5. The court held that petitioner's guilty plea was voluntary
and made with knowledge of the alternatives available to him. In
addition, the court found that petitioner's admission that he negotiated
with Kwong to buy cocaine for resale provided a factual basis for his
plea. Id. at A3.
The court of appeals next rejected petitioner's claim that the
government breached its plea agreement with petitioner to recommend a
base offense level of 28. The court noted that by objecting to the base
offense level of 28 set forth in the presentence report, petitioner
breached the agreement. The court concluded, therefore, that the
government was released from its stipulation in the plea agreement and
"was free to pursue a higher base offense level." Pet. App. A4.
Finally, the court held that petitioner's heroin transaction was
properly considered as relevant conduct under the Guidelines because it
was sufficiently similar to the charged cocaine offense, and that
application of the relevant conduct Guideline did not violate ex post
facto principles. Pet. App. A4.
1. Petitioner contends (Pet. 9-13) that the government breached its
plea agreement. He argues that the government stipulated to a base
offense level of 28 that did not cover the drug transactions that
petitioner did not admit, but then urged a higher base offense level
based on those transactions. Both courts below, however, found that it
was petitioner who breached the plea agreement by contesting, at
sentencing, the base offense level set forth in the presentence report,
which was the same level the parties had agreed to in the plea
agreement. The government, therefore, was no longer bound by the
stipulations of the agreement. United States v. Gonzalez-Sanchez, 825
F.2d 572, 578 (1st Cir. 1986), cert. denied, 484 U.S. 989 (1987);
United States v. Reardon, 787 F.2d 512, 516 (10th Cir. 1986) (citing
cases); United States v. Donahey, 529 F.2d 831, 832 (5th Cir.), cert.
denied, 429 U.S. 828 (1976). See Ricketts v. Adamson, 483 U.S. 1 (1987)
(because defendant breached his plea agreement, his retrial did not
violate double jeopardy protections); cf. Santobello v. United States,
404 U.S. 257 (1971) (prosecutor's breach of a plea agreement may warrant
relieving a defendant from the consequences of his guilty plea).
The record amply supports the determination that petitioner breached
the plea agreement. Petitioner stipulated that the base offense level
was 28, which corresponds to between 2.0 and 3.4 kilograms of cocaine.
Before sentencing, however, in a letter to the judge, petitioner
specifically disputed the presentence report's finding that the charged
offense involved more than two kilograms of cocaine and the resulting
determination that the base offense level was 28, arguing that "there is
no proof or evidence to substantiate that finding." Gov't C.A. Br. App.
at GA2. At the sentencing hearing, petitioner renewed his contention
that he was not involved in a drug transaction involving between 2.0 and
3.4 kilograms of cocaine and testified that he sought only to buy six
ounces of cocaine. The courts below found that petitioner's conduct
constituted a breach of the plea agreement, and their concurrent
determination warrants no review by this Court. /2/
Petitioner insists (Pet. 10) that his challenge to the presentence
report was necessitated by the prosecution's failure to object to a
statement in it that some of petitioner's illegal conduct had not been
considered in computing the base offense level. But the presentence
report calculated a base offense level of 28, which was the level to
which the government stipulated in the plea agreement. Moreover, the
plea agreement provided only that the prosecution would not seek
enhanced punishment based on the drug transactions alleged in the
indictment to which petitioner had not admitted; the agreement did not,
and could not, relieve the probation department of its independent
responsibility to indicate to the sentencing court its understanding of
the relevant facts. See United States v. Williamsburg Check Cashing
Corp., 905 F.2d 25, 28 (2d Cir. 1990); cf. Wasman v. United States, 468
U.S. 559 (1984) (sentencing court should consider all relevant
information that reasonably bears on the offense).
Because it was petitioner, not the government, who breached the plea
agreement, petitioner errs in arguing (Pet. 11) that his guilty plea was
retrospectively rendered "involuntary" by the government's actions. It
is difficult to see how petitioner's repudiation of the stipulations in
the plea agreement could have undermined the voluntariness of his plea;
petitioner could have abided by his agreement, but he voluntarily chose
to abandon it. In any event, even after petitioner was fully aware of
the government's intention to offer additional evidence with regard to
his narcotics activity, petitioner's counsel assured the district judge
that petitioner continued to adhere to his plea and was not seeking to
withdraw it. Gov't C.A. Br. 16.
2. There is no merit to petitioner's contention (Pet. 11-12) that the
decision below conflicts with United States v. Castro-Cervantes, 927
F.2d 1079 (9th Cir. 1990), and United States v. Plaza-Garcia, 914 F.2d
345 (1st Cir. 1990).
In Castro-Cervantes, the court of appeals stated that a sentencing
court should not accept a plea bargain and later rely on dismissed
charges in determining the defendant's sentence. 927 F.2d at 1082. The
court of appeals explained that, under a policy statement to Sentencing
Guidelines Section 6B1.2(a), a court should not "accept" a plea bargain
that includes the dismissal of charges if the remaining charges do not
adequately reflect the seriousness of the defendant's underlying
conduct; the court of appeals reasoned that it would conflict with that
policy statement for a sentencing judge to accept a plea bargain, then
look to dismissed charges to calculate the Guidelines sentence. 927
F.2d at 1082. Whatever the merits of that decision, its reasoning does
not apply to this case. The sentencing court considered petitioner's
other drug transactions only after petitioner breached his plea
agreement and the court stated that it would be "unfair to the
Government to hold them to a deal that (petitioner) has essentially
abandoned" (Gov't C.A. Br. 8); the court therefore did not "accept"
that agreement as providing the point of departure for petitioner's
sentence. /3/
In Plaza-Garcia, the court of appeals reversed the defendant's
sentence because the government conceded that the presentence report
contained erroneous sentencing calculations. 914 F.2d at 347-348. To
aid the sentencing court on remand, the court of appeals also discussed
the question whether the sentencing court could depart upward on the
basis of charges dismissed pursuant to a plea bargain. The court of
appeals indicated that a sentencing court could depart on the basis of
dismissed charges in appropriate cases; it simply noted that, whatever
the sentencing court's reasons for departing, the court must explain
those reasons for departure on the record. Id. at 348. Plaza-Garcia
therefore does not support petitioner's contention that dismissed counts
may not be considered by a sentencing judge.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
THOMAS E. BOOTH
Attorney
DECEMBER 1991
/1/ The three transactions alleged were: (1) petitioner assisted a
co-defendant to sell eight pounds of heroin and to resolve disputes
between the buyers and the sellers; (2) petitioner negotiated to buy
cocaine from David Kwong, but the sale did not materialize because Kwong
refused to "front" the cocaine to petitioner; and (3) in late 1988,
petitioner negotiated the purchase of a multi-kilogram quantity of
cocaine from Kwong. Gov't C.A. Br. 2-3. The guilty plea covered only
the third transaction. Id. at 4-5.
/2/ The issue of whether a party breached a plea agreement is an
issue of fact as to which the district court's determination may be
reversed only if it is clearly erroneous. See, e.g., United States v.
Connor, 930 F.2d 1073, 1076-1077 (4th Cir. 1991); United States v.
Britt, 917 F.2d 353, 359 (8th Cir. 1990), cert. denied, 111 S. Ct. 971
(1991). Cf. Hernandez v. New York, 111 S. Ct. 1859, 1869 (1991)
(plurality opinion) (applying clearly erroneous rule to the review of
factual determination by the trial judge in criminal cases); Maine v.
Taylor, 477 U.S. 131, 145 (1986) (same). This Court does not sit to
review factual findings in which two lower courts have concurred. See
Goodman v. Lukens Steel Company, 482 U.S. 656, 665 (1987).
/3/ Petitioner acknowledged, in entering into the plea agreement,
that the agreement was not binding on the district court. Gov't C.A.
Br. 4.
VINCENT GEORGE PARKS, JR., PETITIONER V. UNITED STATES OF AMERICA
No. 91-6118
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certitorari To The United States Court Of
Appeals For The Ninth Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1-12) is unreported,
but the judgment is noted at 937 F.2d 614 (Table).
The judgment of the court of appeals was entered on July 15, 1991.
The petition for a writ of certiorari was filed on October 11, 1991.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Whether petitioner established that the prosecutor discriminated
on grounds of race in the exercise of peremptory challenges.
2. Whether petitioner's rights were violated when the district court
conducted an ex parte conference with the jurors after they had
completed their deliberations and returned their verdict.
Following a jury trial in the United States District Court for the
Central District of California, petitioner was convicted of armed bank
robbery, in violation of 18 U.S.C. 2113(d), and use of a firearm during
a crime of violence, in violation of 18 U.S.C. 924(c). He was sentenced
to 117 months' imprisonment. The court of appeals affirmed. Pet. App.
1-12.
1. Petitioner is black. During jury selection at petitioner's trial,
the government used its first two peremptory challenges to exclude black
venirepersons. Pet. App. 2. After those challenges, defense counsel
expressed concern that the government was using its peremptory
challenges to remove blacks from the jury. 1/10/90 Tr. 55-56. In
response to questioning by the court, the prosecutor denied that he
intended to excuse every black venireperson from the jury. /1/ Pet.
App. 2-3; 1/10/90 Tr. 56. At the request of petitioner's counsel, the
court then directed the prosecutor to state his reasons for striking the
two black jurors. /2/ Pet. App. 3; 1/10/90 Tr. 56-57. The prosecutor
explained that one of the potential jurors, Juanita Givens, was struck
because she was "studying to be a social worker," and that the other
potential juror, Esther Hudson, was struck because she had previously
served as a juror in a case in which the prosecutor was involved. Pet.
App. 3; 1/10/90 Tr. 57. The district court ruled that the government
was warranted in challenging Givens, and, without making a specific
comment regarding the challenge of Hudson, stated to the prosecutor:
"Don't start challenging every black off this jury." The prosecutor
again assured the court that he would not do so. Pet. App. 3; 1/10/90
Tr. 57.
2. After completing its deliberations, the jury sent a note to the
district court stating that it had reached a verdict. The jury also
sent the court a second note, which said: "To the judge -- Members of
the jury have concerns about their safety and request to speak to you or
a member of your staff about same." Pet. App. 8. At a sidebar
conference, the court informed the prosecutor and defense counsel that
it intended to meet with the jurors after the verdict had been returned,
and it requested suggestions from the attorneys about how it should
respond to the jurors' concerns. Pet. App. 8; 1/16/90 Tr. 20-21.
Petitioner's counsel expressed concern that the jurors' fears might have
influenced their verdict; the court responded that it did not intend to
"put (the jurors) through a long interrogation." (Pet. App. 8; 1/16/90
Tr. 22.
The jury was brought back into the courtroom, and the verdict was
announced. Pet. App. 8; 1/16/90 Tr. 22-23. After thanking the jurors
for their service, the court asked them to return to the jury room for a
brief meeting. Pet. App. 8; 1/16/90 Tr. 23-24. In open court, the
district court again solicited suggestions from the parties about how to
respond to the jury's note. 1/16/90 Tr. 24-25. Defense counsel
requested that the court ask the jurors about the basis for their
concerns, and the court agreed to "inquire of them if any specific
threats have been made to them." Ibid.
In the jury room, the court asked the jurors whether any of them had
been "approached by any person or received any calls up until now."
1/16/90 Tr. 26. When none of the jurors answered affirmatively, the
court inquired about the basis for the jurors' "generalized feeling of
apprehension." 1/16/90 Tr. 27. Several jurors explained that they were
concerned because petitioner had been looking at them and taking notes
during the trial, and because petitioner's wife was "out there at
large." Ibid. The court assured the jurors that they need not be
concerned and gave them an FBI telephone number to call if they were
approached by anyone or received any telephone calls about the case.
Ibid.
3. In an unpublished opinion, the court of appeals affirmed.
Petitioner contended that the government had discriminated against black
jurors in its initial two peremptory challenges, in violation of Batson
v. Kentucky, 476 U.S. 79 (1986). The court of appeals rejected that
contention, holding that petitioner had failed to establish a prima
facie case of discrimination under Batson. Pet. App. 5. The court
observed that, apart from the challenges themselves, "defense counsel
failed to make a record of other probative facts such as whether the
government accepted any blacks on the jury," and it concluded that
"(t)he mere striking of two black jurors, without more, does not
establish a 'pattern' of challenges against black jurors sufficient to
raise an inference of discrimination." Pet. App. 5-6. Because
petitioner had "made no showing * * * that the government singled out
blacks for exclusion," the court declined to consider whether the
prosecutor's explanations of his reasons for challenging the two black
jurors were adequate or whether the district court conducted a proper
hearing on petitioner's Batson objection. /3/ Pet. App. 6.
The court of appeals also rejected petitioner's contention that the
district court had abused its discretion in conducting the post-verdict
conference with the jury. The court found that once the district court
determined that the jurors' concerns rested on generalized fears rather
than on exposure to extrinsic material, the court was justified in
concluding its inquiry. Pet. App. 9-10. In addition, the court of
appeals concluded that petitioner had no due process right to be present
at the conference with the jury, because petitioner's "presence at the
meeting was not necessary to ensure fundamental fairness or a
'reasonably substantial * * * opportunity to defend against the
charge.'" Id. at 10, quoting United States v. Gagnon, 470 U.S. 522, 526
(1985).
In any case, the court of appeals held, petitioner failed to show
that he was prejudiced by the trial court's ex parte contact with the
jury. The cout noted that because the conference occurred after the
jury had returned its verdict, it could not have affected the verdict.
Pet. App. 9. Finally, the court concluded that petitioner waived any
possible objection he had under Fed. R. Crim. P. 43, /4/ observing that
"although the judge informed counsel in open court of her intention to
communicate ex parte with the jury and solicited suggestions from
counsel as to how to proceed, * * * defense counsel made no request to
attend the conference nor did he make any post-trial motions." Ibid.
1. Petitioner renews his contention (Pet. 24-31) that the
government's use of its peremptory challenges violated Batson v.
Kentucky, 476 U.S. 79 (1986). In Batson, the Court held that a
defendant can establish a equal protection violation based on the
government's use of peremptory challenges to remove black potential
jurors from the petit jury in his particular case. 476 U.S. at 96.
Under the procedures prescribed by Batson, if the defendant establishes
a prima facie case that the prosecutor used peremptory strikes to remove
potential jurors because of their race, the burden shifts to the
prosecutor to provide a racially neutral explanation. The court must
then determine, in light of all the facts and circumstances, whether the
defendant has carried his burden to establish purposeful discrimination.
Id. at 94-98.
In this case, when petitioner objected to the prosecutor's exercise
of peremptory strikes against two black jurors, the district court,
without expressly determining whether a prima facie case was made out,
asked the prosecutor to explain the challenges. After the prosecutor
gave his explanations, the district court rejected petitioner's Batson
motion and ordered jury selection to proceed. The court of appeals,
without reviewing the adequacy of the prosecutor's reasons, affirmed the
denial of the Batson motion on the ground that no prima facie case of
discrimination had been established.
In Hernandez v. New York, 111 S. Ct. 1859, 1866 (1991), a plurality
of this Court indicated that "(o)nce a prosecutor has offered a
race-neutral explanation for the peremptory challenges and the trial
court has ruled on the ultimate question of intentional discrimination,
the preliminary issue of whether the defendant had made a prima facie
showing becomes moot"; a reviewing court should therefore turn its
attention to the question of whether the trial judge acted within the
bounds of his discretion in rejecting the defendant's Batson claim.
Although the court of appeals followed a different approach in this
case, examining petitioner's prima facie case rather than the district
court's acceptance of the prosecutor's reasons, the court's judgment
does not warrant review. Regardless of the approach taken, the court of
appeals' judgment is correct because petitioner established neither a
prima facie case of discrimination nor the existence of clear error in
the trial court's refusal to find a Batson violation.
Petitioner's Batson objection rested solely on the fact that the
prosecutor used two of his peremptory challenges to strike blacks from
the panel. Petitioner did not indicate either the racial composition of
the venire or the ultimate composition of the jury panel. /5/ Moreover,
petitioner failed to point to any other circumstances that would support
an inference that the government improperly relied on the potential
jurors' race in exercising peremptory challenges. /6/ The bare fact
that the government used two peremptory challenges to remove black
potential jurors does not justify an inference of discrimination. In
the absence of a showing of a pattern, statements or questions by the
prosecutor during voir dire that would tend to demonstrate a
discriminatory intent, or some other differential treatment of blacks
and whites in the jury selection process, there was no basis for finding
a prima facie case. /7/
There is also no basis for disturbing the district court's refusal to
find a Batson violation after hearing the prosecutor's explanations.
This Court confirmed in Hernandez that the trial court's acceptance of
the prosecutor's reasons is subject to deferential review, and may not
set aside unless it is clearly erroneous. 111 S. Ct. at 1869 (plurality
opinion); id. at 1873 (concurring opinion) (agreeing that Court should
"review for clear error the trial court's finding as to discriminatory
intent"). The determination that the prosecutor's reasons are not
discriminatory rests on a finding of credibility, an issue as to which
"(t)here will seldom be much evidence," and "the best evidence often
will be the demeanor of the attorney who exercises the challenge." Id.
at 1969 (plurality opinion). Accordingly, appellate courts will rarely
be in a position to second-guess the trial court's conclusion that the
prosecutor's reasons are not invidious.
In this case, the prosecutor's explanations for the peremptory
strikes were clear, specific, and race-neutral, as Batson requires, see
476 U.S. at 98 & n.20, and the trial court did not clearly err in
accepting them. /8/ Batson requires only that a strike not be based on
race; "the reason offered by the prosecutor for a peremptory strike
need not rise to the level of a challenge for cause." Hernandez, 111 S.
Ct. at 1868 (plurality opinion), citing Batson, 476 U.S at 97. That
standard was satisfied here. The prosecutor's explanation that he
struck juror Hudson because of her service as a juror in a prior case in
which he was involved was grounded on the reasonable concern that
Hudson's view of the evidence might be tainted by preconceived notions
of the prosecutor's personality or skills. And the prosecutor's
explanation that he struck juror Givens because of her background in
social work was similarly race-neutral and legitimate. See United
States v. De La Rosa, 911 F.2d 985, 990-991 (5th Cir. 1990) (employment
with church-affiliated agency); United States v. Briscoe, 896 F.2d
1476, 1487-1488 (7th Cir. 1990) (youth supervisor at a juvenile penal
center); United States v. Wilson, 867 F.2d 486, 487-488 (8th Cir.)
social worker with juveniles), cert. denied, 493 U.S. 827 (1989).
2. Petitioner claims (Pet. 31-38) that the district court erred in
the manner in which it conducted the post-verdict conference with the
jury to discuss the jurors' concerns for their safety. District courts
enjoy broad discretion in deciding whether to examine jurors regarding
the effect of outside influences on their deliberations. See United
States v. Pallais, 921 F.2d 684, 686 (7th Cir. 1990), cert. denied, 112
S. Ct. 134 (1991); United States v. Chang An-Lo, 851 F.2d 547, 558 (2d
Cir.), cert. denied, 488 U.S. 966 (1988); United States v. Phillips,
664 F.2d 971, 998-1000 (5th Cir. 1981), cert. denied, 457 U.S. 1136
(1982). In this case, the district court's questioning of the jurors
revealed that their apprehension was based not on any outside
influences, but on petitioner's conduct during the trial and the fact
that petitioner's wife was still at liberty. Once the trial court
determined that the jurors had not been subjected to any extrinsic
influences, it was plainly within the court's discretion to conclude
that further inquiry was not required. See United States v. Watchmaker,
761 F.2d 1459, 1465 (11th Cir. 1985) (district court's failure to hold a
hearing on possibility of juror bias resulting from fear of retaliation
"constitutes an abuse of discretion only where there is evidence that
the jury was subjected to influence by outside sources"), cert. denied,
474 U.S. 1100 (1986).
Petitioner's claim that he had a right under the Due Process Clause
to be present during the district court's meeting with the jury is also
without merit. Even assuming that the jury conference held after the
verdict was a stage of petitioner's trial at which he had a right to be
present, this Court has made clear that a criminal defendant "has no
constitutional right to be present at every interaction between a judge
and a juror." United States v. Gagnon, 470 U.S. 522, 526 (1985) (per
curiam), quoting Rushen v. Spain, 464 U.S. 114, 125-126 (1983) (Stevens,
J., concurring). Rather, a defendant has a due process right to be
present at a proceeding only where his presence is reasonably related to
his efforts to mount a defense to the charges. United States v. Gagnon,
470 U.S. at 526; Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934).
In this case, the conference between the district court and the jury
was completely unrelated to petitioner's ability to defend against the
charges he faced; the conference did not even occur until after
petitioner had been convicted on those charges. Moreover, the presence
of petitioner or his counsel at the conference would have added little
or nothing to the court's inquiries. The court determined that no
extrinsic material had come to the jurors' attention and that their
fears were based entirely on in-court observations and speculation. In
that situation, the presence of petitioner or his counsel might well
have interfered with the court's attempt to allay the jurors' concerns
for their safety. See Snyder v. Massachusetts, 291 U.S. at 106-107
(defendant has no right to be present "when presence would be useless,
or the benefit but a shadow"). Because petitioner's presence at the
jury conference was not "required to ensure fundamental fairness or a
'reasonably substantial * * * opportunity to defend against the
charge,'" his due process rights were not violated. United States v.
Gagnon, 470 U.S. at 527, quoting Snyder v. Massachusetts, 291 U.S. at
105-106; see United States v. Brown, 923 F.2d 109, 112 (8th Cir.),
cert. denied, 112 S. Ct. 110 (1991); United States v. Shukitis, 877
F.2d 1322, 1329-1330 (7th Cir. 1989); United States v. Watchmaker, 761
F.2d at 1466.
The court of appeals also correctly concluded that petitioner waived
any right he might have had under Federal Rule of Criminal Procedure 43
to be present at the jury conference. The provisions of Rule 43 do not
directly apply to the post-verdict conference conducted in this case.
See note 4, supra. In any event, the district court informed the
parties in open court that it intended to meet with the jurors, and it
solicited suggestions about how to proceed. Neither petitioner nor his
counsel objected at any time to the ex parte meeting or made any request
to attend, and petitioner filed no post-trial motions raising the Rule
43 claim. Under these circumstances, petitioner's failure to assert his
right under Rule 43 to be present at the conference constituted a waiver
of that right. See United States v. Gagnon, 470 U.S. at 529; United
States v. Brown, 923 F.2d at 112; United States v. Shukitis, 877 F.2d
at 1330.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
NINA GOODMAN
Attorney
DECEMBER 1991
/1/ The judge asked, "You are not planning to take every black juror
off the jury, are you?" Pet. App. 3; 1/10/90 Tr. 56. The prosecutor
replied: "Absolutely not." Ibid.
/2/ The court also noted that the defense had used one of its
peremptory challenges to exclude a black potential juror. 1/10/90 Tr.
56.
/3/ The court stated, however, that it "agreed that the prosecutor's
explanations for rejecting the (jurors) are tenuous." Pet. App. 5.
/4/ That Rule provides, in pertinent part: "(t)he defendant shall be
present at the arraignment, at the time of the plea, at every stage of
the trial including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence." Fed. R. Crim. P. 43.
/5/ After defense counsel raised the Batson challenge, the prosecutor
responded to the district court's inquiries by repeatedly assuring the
court that he did not intend to "take every black juror off the jury."
See 1/10/90 Tr. 56-57. That exchange implies that there were other
black jurors remaining on the panel. Moreover, the government exercised
no more peremptory challenges after the Batson colloquy. See 1/10/90
Tr. 57-72. The record therefore suggests that the government did not
use its peremptory challenges to exclude all black potential jurors from
the jury.
/6/ Petitioner's suggestion (Pet. 27-28) that the prosecutor waited
to challenge prospective juror Hudson until he saw that the next juror
called from the venire was white is not supported by the record. After
Hudson was seated, the prosecutor struck her with his next available
peremptory challenge. See 1/10/90 Tr. 46-51.
/7/ It is not the case, as petitioner suggests (Pet. 27-28), that a
prima facie case is automatically established if a prosecutor uses
peremptory challenges against one or more members of a cognizable
minority group. Rather, the courts of appeals have held that "no
mathematical formula can be devised to signal the establishment of a
prima facie case." United States v. Lane, 866 F.2d 103, 107 (4th Cir.
1989); accord United States v. Moore, 895 F.2d 484, 485 (8th Cir.
1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th
Cir. 1988); United States v. Clemons, 843 F.2d 741, 746 (3d Cir.),
cert. denied, 488 U.S. 835 (1988).
/8/ Although the court did not expressly find that the challenge of
juror Hudson was legitimate, that finding is implicit in the court's
determination to continue jury selection and not to grant any relief in
response to petitioner's Batson motion.
EGBERT RICHARDSON, PETITIONER V. UNITED STATES OF AMERICA
No. 91-6090
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1a-14a) is reported at
939 F.2d 135.
The judgment of the court of appeals was entered on July 2, 1991.
The petition for a writ of certiorari was not filed until October 15,
1991; it is therefore out of time under Rule 13.1 of the Rules of this
Court. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
Whether drug sales by petitioner's co-conspirator were reasonably
foreseeable to petitioner, and therefore properly taken into account in
computing petitioner's sentence under Sentencing Guidelines Section
1B1.3.
Petitioner pleaded guilty in the United States District Court for the
District of South Carolina to one count of conspiracy to possess cocaine
with intent to distribute it, in violation of 21 U.S.C. 846. He was
initially sentenced to a 200-month term of imprisonment, to be followed
by a five-year term of supervised release. On the government's motion,
petitioner's prison term was subsequently reduced to 165 months to
reflect petitioner's assistance in prosecuting another defendant. Pet.
App. 2a-3a.
1. In 1984 petitioner and Ivan Taylor, a Miami businessman, agreed to
go into the cocaine business. Taylor supplied the money for the
operation, while petitioner arranged the drug transactions. Pet. App.
3a. Taylor soon discovered that petitioner used cocaine and often could
not account for drugs and money that he received from Taylor. Taylor
and petitioner parted company, and Taylor began to deal directly with
suppliers and customers he had met through petitioner. Pet. App. 3a-4a.
In 1987, petitioner went to Taylor and proposed that they renew their
partnership for the purpose of selling cocaine in Holly Hill and
Orangeburg, South Carolina, and High Point, North Carolina. Petitioner
told Taylor that cocaine was in short supply in those areas and would
command a high price. In the fall of 1987, petitioner and Taylor
traveled to Lee County, South Carolina, where they sold one kilogram of
cocaine for $22,000. Pet. App. 4a.
Petitioner and Taylor then traveled to North Carolina, where they
delivered cocaine to a buyer located by petitioner. Shortly thereafter,
and about two weeks after their first trip to South Carolina, petitioner
and Taylor made a second trip to South Carolina with about a pound of
cocaine. While they were stopped at a motel in that State, petitioner
disappeared with half the cocaine and Taylor's car. Pet. App. 4a.
After that incident, Taylor no longer sold cocaine in conjunction
with petitioner. Nevertheless, Taylor made several cocaine sales to
petitioner's contacts in North and South Carolina. In all, Taylor sold
approximately 13 kilograms of cocaine to the South Carolina buyers, as
well as an additional 2.5 kilograms of cocaine to the North Carolina
buyer. Pet. App. 4a-5a.
Eventually, the South Carolina buyers were arrested. They identified
petitioner and Taylor as their source of supply. A South Carolina law
enforcement agent then contacted petitioner by telephone and attempted
to purchase 10 kilograms of cocaine. Although the agent wired $1,300 to
Florida, the deal was never completed. Pet. App. 5a.
2. The district court determined that petitioner's base offense level
was 34 for his involvement in distributing or conspiring to distribute
24.9 kilograms of cocaine. C.A. App. 244-245. /1/ The 24.9 kilograms
included the cocaine distributed by petitioner and Taylor, the cocaine
distributed by Taylor alone after petitioner stole the car and drugs,
and the 10 kilograms petitioner negotiated to sell to the South Carolina
agent. Petitioner received a four-level increase under Guidelines
Section 3B1.1(a) for his role as an organizer, and a two-level reduction
under Guidelines Section 3E1.1 for acceptance of responsibility. Based
on an adjusted offense level of 36, the court determined that
petitioner's Sentencing Guidelines range was 188 to 235 months'
imprisonment. Pet. App. 5a-6a.
The district court rejected petitioner's contention that he could not
reasonably have foreseen that Taylor would continue to traffic in
cocaine with petitioner's contacts, and that petitioner therefore should
not be sentenced for the drugs that Taylor sold on his own. The
district court found that petitioner played a "pivotal role" by
"put(ting) buyers in touch with the sellers." C.A. App. 89. The court
also found that
(i)f (petitioner) brought (Taylor) up here and introduced him to
these people in person, and he and Taylor did business with them
one time, it would be surely easily foreseeable that if Taylor
himself came up again, and made the contact with the people he had
done business with before, that it was easily for(e)seeable Taylor
could sell that.
Id. at 83; Pet App. 11a.
3. The court of appeals vacated petitioner's sentence and remanded
for resentencing. Pet. App. 1a-14a. Although the court vacated the
sentence, it rejected petitioner's contention that he could not
reasonably have foreseen Taylor's cocaine sales to petitioner's
contacts. The court noted that petitioner had pleaded guilty to being a
member of a conspiracy that lasted until December 20, 1988, well after
petitioner stole Taylor's car and drugs. Pet. App. 11a. The court of
appeals concluded that "it is reasonable to find that (petitioner) could
foresee some additional sales by Taylor," and held that the district
court did not clearly err in finding that petitioner could reasonably
foresee Taylor's additional sales to petitioner's contacts over a period
of a year. Id. at 13a. The court of appeals noted, however, that it
thought petitioner's sentence went "about as far as reasonable
foreseeability can be taken." Ibid.
The court of appeals found no evidence that petitioner had the
financial resources to supply 10 kilograms of cocaine, and therefore
held that the district court should not have considered the South
Carolina agent's attempted purchase in calculating petitioner's
sentence. Accordingly, the court of appeals vacated petitioner's
sentence and remanded for resentencing. Pet. App. 13a-14a. /2/
Petitioner contends (Pet. 5-8) that he could not reasonably have
foreseen that Taylor would continue to sell cocaine to petitioner's
contacts after petitioner and Taylor parted company. That fact-bound
contention merits no further review.
Sentencing Guidelines Section 1B1.3(a)(1) defines the defendant's
relevant conduct for purposes of sentencing to include
all acts and omissions committed or aided and abetted by the
defendant, or for which the defendant would be otherwise
accountable, that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense,
or that otherwise were in furtherance of that offense(.)
Application Note 1 to Guideline Section 1B1.3 provides:
In the case of criminal activity undertaken in concert with
others, whether or not charged as a conspiracy, the conduct for
which the defendant "would be otherwise accountable" * * *
includes conduct of others in furtherance of the execution of the
jointly-undertaken criminal activity that was reasonably
foreseeable by the defendant.
Under Guidelines Section 1B1.3, a drug conspirator is responsible for
drug transactions committed by his co-conspirators that he could
reasonably have foreseen. United States v. Scroggins, 939 F.2d 416, 422
(7th Cir. 1991); United States v. Guerrero, 894 F.2d 261, 266 (7th Cir.
1990).
As petitioner concedes (Pet. 6), foreseeability is a factual
determination that can be overturned on appeal only for clear error.
See United States v. Vinson, 886 F.2d 740, 742 (4th Cir. 1989), cert.
denied, 493 U.S. 1062 (1990). In this case, the lower courts'
determination that petitioner could reasonably have foreseen Taylor's
additional drug sales is not clearly erroneous. Petitioner knew that
Taylor had access to large amounts of cocaine. Within a period of about
two weeks, petitioner and Taylor made two trips to South Carolina and
one trip to North Carolina to sell cocaine. Taylor carried a
substantial amount of cocaine on both trips to South Carolina. On the
first trip, Taylor and petitioner sold a kilogram of cocaine. The
second trip was aborted when petitioner absconded with Taylor's
automobile and half the cocaine. Despite petitioner's assertion that
the South Carolina buyers viewed Taylor as an "outsider," it was
reasonably foreseeable to petitioner that Taylor would continue to sell
cocaine in kilogram quantities to petitioner's contacts in the
Carolinas. /3/
The fact that petitioner stole Taylor's car and some of the drugs in
1987 does not absolve him of responsibility for Taylor's subsequent drug
transactions in South Carolina. Petitioner pleaded guilty to a
conspiracy ending in December 1988, long after he absconded with the
drugs in 1987. Petitioner did not withdraw from the conspiracy, because
he took no affirmative steps "to defeat or disavow the purpose of the
conspiracy." United States v. Devine, 934 F.2d 1325 (5th Cir.), cert.
denied, 112 S. Ct. 349 (1991). On the contrary, petitioner apparently
continued to make telephone calls to Taylor in late 1988. C.A. App.
242. The district court therefore was authorized to attribute Taylor's
sales to petitioner for sentencing purposes.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
KAREN SKRIVSETH
Attorney
DECEMBER 1991
/1/ The court of appeals mistakenly stated that the base offense
level was 32. Pet. App. 5a.
/2/ The court of appeals also rejected petitioner's contentions that
his sentence should not have been enhanced for his role as an organizer,
and that his reduction in sentence for assisting the government should
have been proportional to the reduction granted to his co-defendants.
Pet. App. 8a-9a. Petitioner does not pursue those claims here.
/3/ When petitioner and Taylor split up in 1984, Taylor continued to
deal with buyers introduced to him by petitioner. Pet. App. 4a. It was
reasonably foreseeable to petitioner that Taylor would repeat this
pattern in 1987.
SILKEY HARRIS, PETITIONER V. UNITED STATES OF AMERICA
No. 91-6077
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1-7) is not reported,
but the judgment is noted at 943 F.2d 53 (Table).
The judgment of the court of appeals was entered on August 27, 1991.
The petition for a writ of certiorari was filed on October 10, 1991.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Whether the evidence was sufficient to sustain petitioner's
conviction for possessing cocaine with intent to distribute it.
2. Whether the district court abused its discretion in admitting
evidence that petitioner twice had sold cocaine to an undercover police
officer.
3. Whether the district court erred in sentencing petitioner.
After a jury trial in the United States District Court for the
Western District of Tennessee, petitioner was convicted of possessing
cocaine with intent to distribute it, in violation of 21 U.S.C.
841(a)(1). In a separate jury trial, he was convicted on one count of
conspiring to murder a federal witness, in violation of 18 U.S.C. 371;
on one count of attempted murder of a witness with the intent to prevent
his further communication with law enforcement authorities regarding the
commission of a federal narcotics offense, in violation of 18 U.S.C.
1512; and on two counts of threatening and causing bodily injury in
retaliation for giving information concerning the commission of a
federal narcotics offense, in violation of 18 U.S.C. 1513. /1/ He was
sentenced to 115 months' imprisonment on the drug conviction, and to a
consecutive term of 188 months' imprisonment on the other offenses, to
be followed by three years' supervised release. The court of appeals
affirmed all of petitioner's convictions in a single opinion. Pet. App.
1-7.
1. The evidence at petitioner's drug trial showed that in late March
1989 petitioner twice made cocaine sales to an undercover police officer
outside an apartment in Memphis, Tennessee. Officers on surveillance
also several times saw petitioner leave that apartment and go to another
one nearby. In April the police obtained warrants to search the two
apartments. In one of the apartments the police found cocaine and drug
paraphernalia. In the other apartment the officers discovered 1500
grams of cocaine, cocaine sifters, plastic bags with cocaine residue, a
press, two sets of scales, a semiautomatic weapon, and several pieces of
paper bearing petitioner's name. Petitioner's fingerprints later were
discovered on the plastic bags. Pet. App. 1-2, 6; Gov't C.A. Br. 2-4.
Petitioner was arrested two days later through the assistance of
government informant Ray Madison. In May 1989 petitioner was indicted
on the drug charges. After he was released on bond, he met on June 2
with his brother, Sheddrick Harris, as well as with Christopher Roberson
and Nicola Grayson. Petitioner directed the others to rob Madison's
apartment and to "waste" the occupants. The three obtained entry to
Madison's apartment through a ruse, then put a gun to Madison's head and
told him that they were going to kill him "for what (he) did to
(petitioner)." They tied up Madison and blindfolded him. Grayson then
went upstairs and tied up Madison's wife. After Grayson and Roberson
ransacked the bedroom, Sheddrick Harris raped Mrs. Madison. Pet. App.
2.
The three assailants then took Ray Madison outside and put him in the
back seat of his own car. Roberson and Grayson got in the front seat
and drove away, while Sheddrick Harris followed in another car. After
some time, Madison managed to free his hands and was able to retrieve a
gun he kept under the driver's seat. He shot Roberson and Grayson and
then fired at Harris's car, managing to force it into a ditch. Id. at
2-3.
2. The district court imposed sentence on petitioner in his two cases
on the same day. The court first imposed a sentence of 110 months'
imprisonment on the cocaine offense. Turning to the second case, the
court first departed upward from the Sentencing Guidelines range because
of the seriousness of the offense. C.A. Joint App. 242-243. The court
then imposed a consecutive sentence on the second conviction, because
the court was of the view that the cocaine offense was separate from the
others. Id. at 243-244.
3. On appeal, petitioner argued inter alia that the evidence was
insufficient to support his cocaine conviction, that evidence of his two
sales of cocaine to an undercover officer should not have been admitted
at that trial, and that he should not have received consecutive
sentences in the two cases. The court of appeals rejected those claims.
On petitioner's sufficiency of the evidence argument, the court noted
that the evidence showed that petitioner "was seen moving between the
two apartments under surveillance, that he sold cocaine on two occasions
to undercover officers, that the apartments contained drug paraphernalia
and a large amount of cocaine, and that (petitioner's) fingerprints were
found on a bag containing part of the cocaine." Pet. App. 6. As a
result, the court held that "a rational trier of fact could easily
(have) conclude(d) that (petitioner) was guilty of possession with the
intent to distribute." Id. at 7. With respect to the admission of the
evidence of the two undercover sales, the court found that the district
court did not abuse its discretion in admitting that evidence. Id. at
6. Finally, with respect to petitioner's challenge to his consecutive
sentences, the court of appeals noted that, unless a statute provides
otherwise, the imposition of consecutive sentences rests in a trial
court's discretion. The court of appeals found that the district
court's explanation for its sentences here showed that the district
court did not abuse its discretion in imposing consecutive sentences.
Pet. App. 7. /2/
1. Petitioner contends (Pet. 6-8) that the district court erred in
admitting under Fed. R. Evid. 404(b) petitioner's prior sales of cocaine
to an undercover police officer. There plainly is no merit to this
claim.
In Huddleston v. United States, 485 U.S. 681, 685 (1988), the Court
pointed out that Rule 404(b) prohibits the introduction of extrinsic act
evidence "unless that evidence bears upon a relevant issue in the case
such as motive, opportunity, or knowledge." Here the district court,
after considering the proffered evidence outside the presence of the
jury, found that petitioner's prior sales showed his method of
operation, his opportunity to commit the charged offense, and his
control of the apartments. The court therefore concluded that the
evidence was relevant to an issue other than petitioner's propensity to
commit criminal acts. C.A. Joint App. 401-402. The court also weighed
the potential undue prejudice arising from the evidence and found that
the potential prejudice did not outweigh the probative value of that
evidence. Id. at 402-406.
Petitioner argues that the trial court's ruling is contrary to United
States v. Levy, 731 F.2d 997 (2d Cir. 1984). In that case, however, the
court of appeals held that a prior drug transaction was wrongly admitted
only because the trial court had failed to make the requisite findings
under Rule 404(b) and had failed to balance the probative value of the
evidence against its prejudicial impact under Rule 403. 731 F.2d at
1002-1004. Here, however, the district court expressly found that the
evidence was admissible on grounds sanctioned by Rule 404(b), and the
court also complied with the requirements of Rule 403. Accordingly, the
courts below did not err in this regard. /3/
2. Petitioner also claims (Pet. 9-10) that there was insufficient
evidence to support his cocaine conviction. The contrary factual
finding of both courts below, however, was correct and does not warrant
further review.
It is, of course, settled that a conviction should stand so long as,
"after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original). Here the court of
appeals found that there was more than ample evidence to sustain
petitioner's conviction. The court pointed out that petitioner had sold
cocaine twice to an undercover officer, that he was observed moving back
and forth between the two apartments, both of which contained cocaine
and drug paraphernalia, and that petitioner's fingerprints were found on
plastic bags with cocaine residue. As the court below observed, based
on that evidence a rational trier of fact could "easily" have concluded
that petitioner was guilty. Pet. App. 7.
Petitioner's only argument on this point is that, absent what he
characterizes as wrongly admitted evidence, there was insufficient
evidence to sustain his conviction. As we have discussed, however, the
evidence that he challenges was clearly admissible at trial. There was
therefore ample evidence to support petitioner's conviction, and his
claim does not warrant further review. /4/
3. Finally, petitioner argues (Pet. 11-12) that the trial court erred
in imposing consecutive sentences on his cocaine and witness
intimidation convictions. As he did in the court of appeals, petitioner
relies for his argument on 18 U.S.C. 3584 and Sentencing Guidelines
Section 5G1.3. Neither provision supports his claim.
Section 3584 provides in pertinent part that "(m)ultiple terms of
imprisonment imposed at the same time run concurrently unless the court
orders or the statute mandates that the terms are to run consecutively."
Hence, nothing in that statute barred the court from imposing a
consecutive sentence. Section 5G1.3 also does not support petitioner's
claim. Petitioner's argument appears to be based on the October 1987
version of Section 5G1.3, which provided that if the defendant is
already serving an unexpired sentence, the sentence for a second offense
shall run consecutively to such unexpired sentences, unless one or
more of the instant offense(s) arose out of the same transactions
or occurrences as the unexpired sentences. In the latter case,
such instant sentences and the unexpired sentences shall run
concurrently, except to the extent otherwise required by law.
Sentencing Guidelines Section 5G1.3 (Oct. 1987). Based on that
Guideline, petitioner argues that his witness intimidation convictions
and his drug convictions "arose out of the same transactions or
occurrences" and therefore should have resulted in concurrent, rather
than consecutive sentences.
The district court properly rejected petitioner's argument. Applying
Section 5G1.3, as petitioner requested, the court found contrary to
petitioner's contention, that the two sets of offenses were "not
offenses that arose out of the same transaction or occurrence." C.A.
Joint App. 243. That conclusion was clearly correct. While the witness
intimidation offenses were related to the drug offense by the fact that
the witness had given information against petitioner in connection with
the drug charges, the offenses were otherwise unrelated and cannot be
said to have arisen from the same "transactions" or "occurrences."
In fact, although petitioner continues to argue that this case is
governed by the 1987 version of Section 5G1.3, it is questionable
whether Section 5G1.3 is applicable to petitioner's case at all. That
provision applies to defendants who are sentenced while they are subject
to an undischarged term of imprisonment in another case. Because
petitioner was sentenced for both sets of offenses on the same day, it
would appear that the determination of petitioner's sentence would start
not with Section 5G1.3, but with Section 5G1.2, which deals with
"Sentencing on Multiple Counts of Conviction," including multiple counts
that are "contained in different indictments or informations for which
sentences are to be imposed at the same time or in a consolidated
proceeding." Section 5G1.2, commentary. /5/ That Guideline refers to
Sentencing Guidelines Sections 3D1.1 through 3D1.5, which in turn
provide for the calculation of a single Guidelines range for all the
counts on which the defendant is to be sentenced. While that approach
would result in a Guidelines sentencing range lower than the total
sentence imposed in this case, an upward departure from that sentencing
range would be appropriate for precisely the reasons that the district
court gave to justify its upward departure in this case. See C.A. Joint
App. 238-244.
Petitioner did not argue at sentencing that the district court should
look to Section 5G1.2 rather than Section 5G1.3. Instead, in the
district court, the court of appeals, and this Court, petitioner has
consistently argued for the application of Section 5G1.3. See C.A.
Joint App. 97-100; Pet. C.A. Br. (No. 90-6344), at 17-18; Pet. C.A.
Br. (No. 90-6349), at 11-12; Pet. 11-12. He therefore has waived any
objection to the court's application of Section 5G1.3. In any event, in
light of the outrageous conduct for which petitioner was responsible in
the witness intimidation case, the district court made it clear that it
intended to depart from the Guidelines sentencing range in order to
impose a substantial sentence. C.A. Joint App. 238-243. It is
therefore highly unlikely that the court's invocation of Section 5G1.3
resulted in petitioner's receiving a longer total sentence than he would
have received if the court had analyzed the case under Section 5G1.2.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
LOUIS M. FISCHER
Attorney
DECEMBER 1991
/1/ Petitioner's brother, Sheddrick Harris, stood trial with him in
the second case and also was convicted. The court of appeals likewise
affirmed his convictions.
/2/ Petitioner also unsuccessfully raised several other claims in the
court of appeals, but he does not renew them here.
/3/ Petitioner also argues that the court should not have admitted
evidence that surveillance officers observed petitioner moving between
the two apartments. But petitioner did not challenge the surveillance
testimony in the court of appeals. Consequently, he cannot raise that
claim here. Demarest v. Manspeaker, 111 S.Ct. 599, 603 (1991); United
States v. Lovasco, 431 U.S. 783, 788 (1977). In any event, however, the
evidence was clearly relevant and admissible; it tended to connect
petitioner with both apartments in which cocaine was found, and it
supported the government's theory that petitioner was involved in a
cocaine distribution operation in which he was using the two apartments.
/4/ Even if the Rule 404(b) evidence was wrongly admitted, petitioner
still would not be entitled to an acquittal on the cocaine charge.
Instead, at the most he would be entitled to a retrial. Lockhart v.
Nelson, 488 U.S. 33 (1988).
/5/ The quoted provision of the commentary was added as of November
1, 1989, after petitioner's offenses but before his sentencing. See
Guidelines Manual, App. C., amendment 288. Because applying the portion
of the commentary added in 1989 would not result in a harsher sentence
for a person in petitioner's position, it would appear that the 1989
version of Section 5G1.2, rather than the 1987 version would be
applicable to petitioner's case. See 18 U.S.C. 3553(a)(4). On the
other hand, if Section 5G1.3 governs this case, as petitioner contends,
it is the 1987 version of that Guideline, rather than the 1989 version,
that would apply. That is because the 1989 version, which was not yet
in effect at the time of petitioner's offenses, would appear to call for
a harsher sentence than the 1987 version if, as petitioner contends, his
two offenses "arose from the same transactions or occurrences." Appying
the harsher 1989 version would therefore run afoul of the Ex Post Facto
Clause of the Constitution. The 1989 version of Section 5G1.3 is
harsher than the 1987 version, because the 1989 version omitted any
reference to concurrent sentences for cases arising from the same
transactions and instead provided for consecutive sentencing in all
cases. Compare Sentencing Guidelines Section 5G1.3 (Oct. 1987) with
Sentencing Guidelines Section 5G1.3 (Nov. 1989). See Guidelines Manual,
App. C, amendment 289.
KRIS A. SORENSON, PETITIONER V. UNITED STATES OF AMERICA
No. 91-6024
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. B) is unreported, but
the judgment is noted at 936 F.2d 581 (Table).
The judgment of the court of appeals was entered on July 10, 1991.
The petition for a writ of certiorari was filed on October 7, 1991. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
Whether the evidence was sufficient to support petitioner's
convictions for credit card fraud and conspiracy to commit credit card
fraud under 18 U.S.C. 1029.
Following a jury trial in the United States District Court for the
District of Idaho, petitioner was convicted of attempted credit card
fraud, in violation of 18 U.S.C. 1029(b)(1), and conspiracy to commit
credit card fraud, in violation of 18 U.S.C. 1029(b)(2). He was
sentenced to 24 months' imprisonment. The court of appeals affirmed.
Pet. App. B1-B4.
1. Petitioner's co-conspirator, Robin Wills, an inmate in the Idaho
State Penitentiary, devised an extensive credit card fraud scheme, which
he operated from prison. Wills used the Penitentiary's telephone to
make collect calls to co-conspirators, who would in turn place
conference calls between Wills and numbers he instructed them to call.
Using this method, Wills obtained credit reports on various individuals,
which helped him locate cards that had not been used frequently. Wills
then would call the issuing banks, and, stating that he was the
cardholder, would "change his address" to that of a co-conspirator,
thereby receiving credit cards that could be used to obtain cash or
merchandise. Tr. 8-13.
Using that scheme, Wills obtained the American Express Card, as well
as other personal information such as the social security number, of an
individual named Robert W. Miller. Tr. 44, 61, 69. In December 1988,
Wills, assuming Miller's identity, attempted to obtain on credit, by
telephone, a Chevrolet Corvette from a dealership in Ontario, Oregon.
Tr. 29, 92. Although Wills testified that he did not provide the
American Express account number to the dealer, he stated that he knew
that credit card information was "mandatory" if one wanted to obtain a
car on credit (Tr. 70), that the dealer obtained Miller's credit data on
the basis of information supplied by Wills (Tr. 69), and that Wills then
"confirmed that over the phone with Ady Chevrolet." Tr. 68. Ultimately,
the plan went awry because Wills, who was in prison, was unable to sign
the credit application. Tr. 29-30.
In January, 1989, Wills revived the scheme to obtain a Corvette. He
arranged for petitioner, whom he had befriended in prison but who was
now free, to fly by chartered plane from his home in Rigby, Idaho, to
Boise. Tr. 58-60, 159-175. When petitioner arrived in Boise, he was
met by a chauffered limousine, which took him to a number of
destinations before finally dropping him off at a local motel. Tr.
175-188. Petitioner spent two nights in a suite in the motel. Tr.
195-208. During that time, he arranged for a taxicab to drive him to a
friend's trailer. Tr. 209-212.
Wills arranged for the airplane charter, the limousine, the motel,
and the taxicab, and informed petitioner that he would "take care" of
those expenses with credit cards. Tr. 55. No signature was required
for the airplane charter charge. Petitioner himself signed his own name
to the credit card charge slips for the limousine and taxicab, and he
signed "Robert Miller, by Kris Sorenson," to the motel charge slip. Tr.
201. None of the holders of the credit cards knew of or authorized the
charges. Tr. 55-56, 100-101.
Meanwhile, Wills arranged to transfer his credit application for the
Corvette from the Oregon dealership to a dealership in Boise. Tr.
216-217. Asserting that he was John Miller, Robert Miller's brother,
Wills supplied dealership employee Jeanine Moorhead with detailed
biographical information on his "brother," Robert, including Robert's
social security number and the fact that Robert held a credit card from
First Bank and an American Express Platinum card. Tr. 222, 224.
Moorhead testified that the dealership requires individuals who want to
purchase a car on credit to supply information on credit card accounts.
Tr. 221-222. With that information, Moorhead filled out a credit
application, called a credit bureau, and gathered sufficient information
to approve the application for credit. Gov't Ex. 18; Tr. 224-225.
Wills told Moorhead that Robert would pick up the Corvette and arranged
with petitioner to pretend to be Robert W. Miller and to pick the car up
later that day. Moorhead testified that, when petitioner arrived at the
dealership, she reviewed the credit application with him in detail,
including the references to the credit cards. Tr. 231-232. She
testified that petitioner confirmed that all of the information was
correct and signed the name "Robert W. Miller" on the bottom of the
form. Tr. 232; Gov't Ex. 18. Because the dealership had already
alerted law enforcement officials to the transaction, petitioner was
arrested while waiting for delivery of the car. Tr. 234-235.
2. Petitioner was indicted on one count of credit card fraud with
respect to the payment for the aircraft charter, limousine, taxicab, and
motel accommodations, one count of attempted credit card fraud with
respect to the attempt to purchase the Corvette on credit, and one count
of conspiracy to commit credit card fraud. The jury convicted
petitioner of the attempt and conspiracy charges and acquitted him on
the other count.
The two statutes under which petitioner was convicted, 18 U.S.C.
1029(b)(1) and (2), make it an offense to attempt and conspire to
violate 18 U.S.C. 1029(a)(2), which in turn makes it an offense to
"knowingly and with intent to defraud * * * use( ) one or more
unauthorized access devices during any one-year period, and by such
conduct obtain( ) anything of value aggregating $1,000 or more during
that period." For purposes of Section 1029, an "access device" is
any card, plate, code, account number, or other means of account
access that can be used, alone or in conjunction with another
access device, to obtain money, goods, services, or any other
thing of value, or that can be used to initiate a transfer of
funds (other than a transfer originated solely by paper
instrument).
18 U.S.C. 1029(e)(1).
3. Petitioner argued below that, because neither he nor Wills gave a
credit card account number to Moorhead, the scheme did not "use" an
"access device" within the meaning of 18 U.S.C. 1029. In an unpublished
opinion, the court of appeals rejected that argument, holding that
Robert Miller's social security number was the "access device," and that
the scheme "used" it because "the transaction was ultimately based upon
the unauthorized use of Robert Miller's credit information." Pet. App.
B4.
Petitioner renews his contention (Pet. 7-9) that there was
insufficient evidence to support his convictions because no "access
device" was used in the scheme to obtain the car.
1. With regard to the conspiracy count, petitioner's argument is
insupportable. Entirely aside from the transaction at the car
dealership, there was ample evidence that petitioner participated in the
conspiracy by making unauthorized use of credit cards to pay for his air
charter, the limousine, the motel, and the taxicab. Although the jury
acquitted him on the substantive count corresponding to those
unauthorized uses of credit cards, the jury could rationally have
considered the scheme to use credit cards in reaching its verdict on the
conspiracy count.
2. Petitioner's conviction on the count charging attempted credit
card fraud is also supported by sufficient evidence. Regardless of the
validity of the court of appeals' theory that Miller's social security
number was an "access device," the evidence that petitioner used
Miller's American Express card in connection with the scheme to obtain
the car was sufficient proof of an attempted use of an "access device"
to satisfy the statute. When viewed in the light most favorable to the
government, the evidence showed that petitioner's co-conspirator, Wills,
originally supplied the car dealership with the information that Miller
held an American Express card, and that the car dealership required that
information or its equivalent in order to approve a credit application.
Petitioner then expressly confirmed the information on the credit card
application when he arrived to pick up the car.
The statute specifically defines "access device" to include a "card *
* * that can be used * * * to obtain money, goods, services, or any
other thing of value," and there is no doubt that an American Express
card comes within that definition. Moreover, petitioner's use of the
American Express Card information in attempting to obtain credit to
purchase the Corvette constituted a "use" of that "access device" within
the meaning of the statute. Petitioner offers no reason to limit the
term "use" to cases in which the defendant initiates the transaction by
supplying a credit card account number, or the card itself, to a
merchant. Accordingly, any evidence from which a reasonable jury could
conclude that Wills or petitioner used credit card information in the
course of the transaction is sufficient to sustain petitioner's
conviction.
Wills testified that he arranged for the Oregon dealership to acquire
the credit card data, confirmed the accuracy of the data with the Oregon
dealership, and arranged for the data to be transferred to the Boise
dealership. See Tr. 68. Thus, even if petitioner did not himself
supply the information to the Boise dealership, his co-conspirator
certainly "used" the credit card by causing information about the
account to be supplied to the Boise dealer for the purpose of obtaining
credit. Moreover, the dealership employee, Moorhead, testified both
that Wills supplied the information directly to her and that she
specifically reviewed the information with petitioner before he signed
Miller's name to the application. /1/
United States v. Blackmon, 839 F.2d 900 (2d Cir. 1988), the case
chiefly relied upon by petitioner (Pet. 7), does not support his
argument. In that case, the conspirators used unauthorized credit cards
in an effort to bolster false identities, thereby gaining the confidence
of victims in a swindle. The district court rejected their proposed
instruction that an "intent to defraud" under Section 1029 was "limited
to intent to defraud a credit card holder or credit card company." 839
F.2d at 913. The court of appeals held that the instruction should have
been given, noting that Congress focused in Section 1029 "on the use of
(credit cards) in connection with credit transactions." 839 F.2d at 914
(emphasis added).
Unlike in Blackmon, the use of the American Express card in this case
was an essential link in a fraudulent scheme to obtain credit, since the
dealership would not approve the application for credit without proof of
prior credit. Furthermore, although the primary victims in Blackmon
were neither the holders nor the issuers of the cards, at least one of
the victims in this case was the holder of the credit card, Robert W.
Miller. Accordingly, the Ninth Circuit's decision in this case does not
conflict with the decision of the Second Circuit in Blackmon.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
KRISTINA L. AMENT
Attorney
DECEMBER 1991
/1/ Petitioner relies (Pet. 8) on his testimony and that of Wills to
argue that Wills did not provide the American Express Card information
to the Boise car dealership and that petitioner did not confirm that
information when he arrived to pick up the car. Obviously, however, the
jury was entitled to believe Moorhead rather than either Wills or
petitioner.
JESUS ROMERO HIGUERA, PETITIONER V. UNITED STATES OF AMERICA
No. 91-5887
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1a-7a) is unreported,
but the judgment is noted at 936 F.2d 580 (Table).
The judgment of the court of appeals was entered on June 24, 1991.
The petition for a writ of certiorari was filed on September 23, 1991 (a
Monday). The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
1. Whether the district court improperly barred petitioner from
cross-examining the victim of a rape about her use of birth control
pills.
2. Whether the district court erred by permitting the victim of a
rape to testify that her friends told her to report the incident to the
police.
3. Whether the district court abused its discretion by admitting into
evidence a diagram and photographs of the victim's injuries.
4. Whether the cumulative effect of the rulings petitioner challenges
denied him a fair trial.
After a jury trial in the United States District Court for the
District of Arizona, petitioner was convicted of aggravated sexual abuse
by force, in violation of 18 U.S.C. 1153 and 2241(a)(1). He was
sentenced to 72 months' imprisonment, to be followed by 60 months of
supervised release.
1. The evidence at trial showed that petitioner, an 18-year old
member of the Pasqua Yaqui Indian tribe, raped Grace Ann Gonzales, a
16-year old member of the same tribe, at her grandmother's house on the
Pasqua Yaqui reservation on October 29, 1988. When Gonzales arrived at
her grandmother's house that afternoon, she found petitioner alone in
the house. Gonzales knew petitioner from school and because he was
dating her 17-year old aunt, Teresa Alcocer. Petitioner told Gonzales
that he had permission to be in the house to record music for Alcocer.
Gonzales exchanged small talk with petitioner and placed some telephone
calls. Petitioner subsequently began pulling down the shades and
locking the doors. While Gonzales was in front of a mirror brushing her
hair, petitioner approached her and pushed her onto a couch. Petitioner
used his body to pin Gonzales on the couch, and he placed his hands on
her throat and wrists. After pulling down Gonzales's shorts and
underpants, petitioner forced her to touch his penis. He then
penetrated Gonzales about five times. When petitioner allowed her to
get up, Gonzales left the house. A chemical analysis subsequently
showed semen of a type consistent with petitioner's on Gonzales's
underpants. Gov't C.A. Br. 4-6.
After he was arrested, petitioner denied having sexual intercouse
with Gonzales. At trial, however, petitioner admitted having sexual
intercourse with Gonzales, but he claimed that it had been consensual.
Gov't C.A. Br. 6.
2. On the second day of trial, the government moved, pursuant to Fed.
R. Evid. 412, to preclude petitioner from cross-examining Gonzales about
her use of birth control pills. Petitioner argued that the evidence was
admissible to rebut the impression given during Gonzales's testimony
that she was sexually naive. The district court granted the
government's motion, ruling that the evidence of Gonzales's use of birth
control pills was inadmissible. Gov't C.A. Br. 6; Pet. App. 2a.
At trial, Gonzales testified that she told three friends about the
rape shortly after she left her grandmother's house and that each of
them told her to report the incident to the police. Petitioner objected
to that testimony on the grounds that it was inadmissible hearsay and
violated the Confrontation Clause of the Sixth Amendment. Overruling
the objections, the district court concluded that the testimony was
admissible to explain why Gonzales subsequently called the police.
Gov't C.A. Br. 5; Pet. App. 2a.
On the night of the assault, Gonzales was interviewed by Darrel Marr,
the case agent, and Kathleen Born, a juvenile prosecutor. During the
interview, Marr and Born observed red scratch marks on Gonzales's throat
and both of her wrists. Born also observed a bruise on Gonzales's
thigh. Marr and Born took photographs of the injuries, and Marr drew a
diagram showing the locations of the scratches and the bruise on
Gonzales's body. Gov't C.A. Br. 5, 17-18.
Over petitioner's objection, the district court admitted the
photographs and the diagram into evidence at trial. Over petitioner's
objection, the district court also allowed the case agent to place
yellow arrows on the photographs pointing to the scratches and the
bruise. Gov't C.A. Br. 5, 17-18; Pet. App. 2a.
3. The court of appeals affirmed in an unpublished opinion. Pet.
App. 1a-7a. It first held that the district court properly precluded
petitioner from cross-examining Gonzales about her use of birth control
pills. Id. at 3a-4a. The court noted, as an initial matter, that
peetitioner had not complied with the procedural requirements of Fed. R.
Evid. 412(c), which require the filing of a written motion not later
than 15 days before trial. The court further found that the record did
not support petitioner's claim that the government had opened the door
at trial to the issue of Gonzales's sexual activity. The court rejected
petitioner's allegation "that Gonzales intentionally sought to project
to the jury that she was sexually naive." Pet. App. 4a. It therefore
concluded that "there was no constitutional violation and no abuse of
discretion in this limitation of cross-examination." Ibid. The court of
appeals also held that Gonzales's testimony that her three friends told
her to call the police after she told them about the rape was not
hearsay because the statements were not offered for the truth of the
matter asserted. Pet. App. 4a-5a. Because "(t)he friends' statements
were only opinions that she should report the incident," the court
explained, "(t)here were no facts related by the friends, the truth of
which was in contention." Id. at 4a. The court also rejected
petitioner's allegation that the friends' statements were inadmissible
because the statements went to the ultimate issue in the case,
explaining that "Gonzales' friends had no knowledge of whether she was
raped and their statement that Gonzales should tell her mother and the
police what happened cannot be characterized as resolving that issue."
Id. at 5a.
The court of appeals also ruled that the photographs and the diagram
of Gonzales's injuries prepared by the case agent were properly admitted
into evidence under Fed. R. Evid. 803(6), the business record exception
to the hearsay rule. Pet. App. 5a-6a. It further found that "nothing
in the record suggests that the manner in which the photographs were
marked by the (case agent) was overly prejudicial." Id. at 5a. The
court accordingly concluded that "the district court did not abuse its
discretion by permitting the photographs to be highlighted in the areas
where Gonzales was bruised." Id. at 5a-6a.
1. Petitioner first contends that the district court's ruling barring
cross-examination of the victim about her use of birth control pills at
the time of the rape deprived him of his constitutional rights to
confront the witnesses against him and to present a defense. Pet. 7-12.
That contention is without merit.
This Court has recognized that a criminal defendant "does not have an
unfettered right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence." Taylor v.
Illinois, 484 U.S. 400, 410 (1988); see also Michigan v. Lucas, 111 S.
Ct. 1743, 1746 (1991); Washington v. Texas, 388 U.S. 14, 23 n.21
(1967). Rather, evidence may be excluded "through the application of
evidentiary rules that themselves serve the interests of fairness and
reliability -- even if the defendant would prefer to see that evidence
admitted." Crane v. Kentucky, 476 U.S. 683, 690 (1986).
Rule 412 of the Federal Rules of Evidence bars the introduction of
evidence of a victim's past sexual behavior in cases such as this one
unless the evidence fits within one of the three exceptions set forth in
the Rule. In this case, petitioner asserts that the evidence of the
victim's use of birth control pills fell within the exception of Rule
412(b)(1), which allows the admission of evidence of a victim's past
sexual behavior that is "constitutionally required to be admitted." Rule
412(b)(1), however, is subject to the procedural requirements set forth
in Rule 412(c), which generally require a defendant who intends to offer
such evidence to make a written motion and offer of proof 15 days prior
to trial. Here, petitioner did not comply with the procedural
requirements of Rule 412(c). That failure to comply with Rule 412(c)
was itself a sufficient basis for excluding evidence of the victim's
past sexual conduct. United States v. Eagle Thunder, 893 F.2d 950, 954
(8th Cir. 1990); United States v. Provost, 875 F.2d 172, 177 (8th
Cir.), cert. denied, 493 U.S. 859 (1989); cf. Michigan v. Lucas, 111 S.
Ct. at 1746-1748.
In any event, there is no merit to petitioner's claim, Pet. 9, 11,
that the evidence of the victim's use of birth control pills was
"constitutionally required" in this case. Contrary to petitioner's
contention, it does not follow from the fact that the victim had a
prescription for birth control pills that she consented to sexual
intercourse with petitioner. See, e.g., United States v. Kasto, 584
F.2d 268, 271-272 (8th Cir. 1978), cert. denied, 440 U.S. 930 (1979).
Nor is there is merit to petitioner's claim, Pet. 9-12, that the
evidence of the victim's use of birth control pills was required to
counter the prejudicial impact of the victim's appearance of being
sexually naive. That claim is based on petitioner's assertion that the
government opened the door to the issue of the victim's past sexual
conduct during its case-in-chief. As the court of appeals found, Pet.
App. 3a, however, the record does not support that assertion. /1/
Petitioner's claim that the victim appeared to be sexually naive,
Pet. 11, rests on nothing more than the fact that parts of the victim's
testimony about the rape were accompanied by tears or pauses. /2/ As
the court of appeals explained, Pet. App. 4a, "(n)either a pause before
answering a sexualy explicit question in open court nor an emotional
reaction to recounting a rape" suggests that the victim sought to
project herself to the jury as being sexually naive. Accordingly,
petitioner's fact-bound claim does not warrant further review.
2. Petitioner next contends that the district court erred by
permitting the victim to testify that her friends told her to report the
rape to the police because the friends' out-of-court statements were
inadmissible hearsay. He also contends that the admission of the
friends' statements violated his Sixth Amendment right to confront the
witnesses against him. Pet. 12-18. The court of appeals correctly
rejected those contentions.
In this case, the district court admitted the out-of-court statements
of the victim's three friends at trial for the limited purpose of
showing why the victim called the police when she did. Because the
statements were not admitted for the truth of the matter asserted, they
were not inadmissible hearsay under Fed. R. Evid. 801(c), and there was
no need to test the credibility of the three friends as to the substance
of their statements. Consequently, the admission of the friends'
out-of-court statements did not violate petitioner's Sixth Amendment
rights under the Confrontation Clause. See, e.g., Tennessee v. Street,
471 U.S. 409, 414 (1982); United States v. Martin, 897 F.2d 1368, 1372
(6th Cir. 1990).
Contrary to petitioner's contention, Pet. 16, the victim's testimony
about the out-of-court statements of her three friends did not go to the
ultimate issue of whether the victim was raped. Nor did the statements
of the victim's friends -- that she should report the rape to the police
-- directly or indirectly implicate petitioner in the rape. As the
court of appeals explained, Pet. App. 5a, "Gonzales' friends had no
knowledge of whether she was raped and their statements that Gonzales
should tell her mother and the police what happened cannot be
characterized as resolving that issue." Accordingly, petitioner's claim
does not warrant further review. /3/
3. Petitioner also contends that the district court erred by
admitting into evidence the photographs and the diagram marked by the
case agent. Pet. 18-19. A district court, however, has wide discretion
over the admissibility of evidence at trial. See, e.g., Hamling v.
United States, 418 U.S. 87, 127 (1974). Here, the diagram prepared by
the case agent showing the locations of the scratches and the bruise on
the victim's body was properly admitted under the business record
exception to the hearsay rule in Fed. R. Evid. 803(6). And, as the
court of appeals found, Pet. App. 5a, "nothing in the record suggests
that the manner in which the photographs were marked by the (case agent)
was overly prejudicial." Accordingly, petitioner's contention does not
warrant this Court's review.
4. Finally, petitioner argues, Pet. 20, without elaboration, that
"even though the foregoing errors may be found to be harmless, taken
individually, their cumulative effect was to deny (petitioner) a fair
trial." Since there is no basis for petitioner's contentions that the
courts below erred with respect to any of the challenged rulings, there
is no reason for this Court to review his allegation that, taken
together, the effect of the rulings denied him a fair trial.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
JOSEPH C. WYDERKO
Attorney
DECEMBER 1991
/1/ During her direct testimony, the victim did not testify about her
past sexual conduct or state that she had no past sexual experience.
Thus, the evidence that the victim used birth control pills would not
have impeached her credibility by contradicting her testimony. For that
reason, petitioner misplaces his reliance, Pet. 10-11, on Government of
the Virgin Islands v. Jacobs, 634 F. Supp. 933 (D.V.I. 1986). In that
case, a rape victim testified on direct examination that she was a
virgin. Id. at 935. After ruling that the government violated Fed. R.
Evid. 412 by eliciting that testimony, the district court in Jacobs
concluded that the defendant would have been entitled under the
constitutional exception of Rule 412 to impeach the victim's credibility
by introducing evidence of the victim's prior sexual conduct. Id. at
937-940.
/2/ Petitioner also asserts that the subsequent testimony of another
government witness, Agent Marr, reinforced the impression that the
victim was sexually naive. The testimony of the case agent upon which
petitioner relies, Pet. 12, however, was elicited during defense
counsel's cross-examination, and not during the government's direct
examination.
/3/ Petitioner also complains, Pet. 16, that the district court
should have given the jury a limiting instruction that the friends'
out-of-court statements were not admitted for the truth of the matter
asserted. Petitioner, however, bore "primary responsibility" for
requesting a limiting instruction if he believed one was necessary. See
Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). The failure to give a
limiting instruction in this case did not amount to plain error since
the statements of the victim's friends -- that she should go to the
police -- were innocuous.
DELORES HORNICK, PETITIONER V. UNITED STATES OF AMERICA
No. 91-5797
In The Supreme Court Of The United States
October Term, 1991
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. A1-A10) is reported at
942 F.2d 105.
The judgment of the court of appeals was entered on August 7, 1991.
The petition for a writ of certiorari was filed on September 13, 1991.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Whether petitioner's trial attorney had a conflict of interest
arising from his previous representation in an unrelated matter of
another participant in petitioner's fraudulent scheme.
2. Whether the district court adequately inquired into petitioner's
allegation that her attorney had a conflict of interest.
After a jury trial in the United States District Court for the
Northern District of New York, petitioner was convicted on 19 counts of
mail fraud, in violation of 18 U.S.C. 1341; six counts of wire fraud,
in violation of 18 U.S.C. 1343; one count of interstate travel in
furtherance of a fraudulent scheme, in violation of 18 U.S.C. 2314; one
count of conspiring to commit mail and wire fraud, in violation of 18
U.S.C. 371; one count of conspiring to impede the Internal Revenue
Service, in violation of 18 U.S.C. 371; and two counts of obstructing
justice, in violation of 18 U.S.C. 1503. Petitioner was sentenced to
seven years' imprisonment, and she and her husband, co-defendant Thomas
Hornick, were ordered to make restitution in the amount of $3,982,499.
The court of appeals affirmed. Pet. App. A1-A10.
1. The evidence adduced at trial is summarized in the opinion of the
court of appeals. Pet. App. A4-A6. It showed that in late 1984,
petitioner and her husband, together with co-defendant Frank Marano and
others, began to sell limited partnerships in oil well projects to small
investors. They promoted the partnerships through direct sales
contracts, solicitation documents, radio advertisements, newsletters,
and investment seminars. Petitioner attended the seminars and served as
an employee or officer of some of the corporations involved in the
scheme. Id. at A4.
Petitioner and her co-defendants promised investors that their money
would be used exclusively to drill wells and that oil revenues would
return their investments in one to three years. They represented that
their own profit would be 20 percent of the revenue derived from the oil
production. The literature and seminars offered investors a written,
money-back guarantee if the wells failed, or an option to transfer the
investment to a producing well. The promoters also claimed that the
investments were virtually risk-free, and that investors would have a
tax-sheltered write-off of up to 80 percent of the money invested. Pet.
App. A5.
Petitioner and her co-defendants typically made payments to investors
of between $100 and $300, which they characterized as either
pre-production payments or profits from investments, in order to keep
investors satisfied that their money had been invested and was
generating income. They also periodically bought out investors. The
money that the defendants used to issue the payments and to buy out
investors was derived from funds invested in the oil well scam by other
investors. Pet. App. A5.
During the four years of the limited partnership, the promoters told
investors the projects had experienced 37 consecutive successes, even
though the amount of oil the wells actually generated was minuscule.
The true cost of drilling was never disclosed. Investor funds were
commingled in bank accounts and no accounting was ever given. One
project was double-sold under different names; a limited partnership
agreement was never filed; and the wells were registered under one name
and sold under another. In addition, petitioner and her co-defendants
filed partnership tax returns fraudulently claiming deductions for
intangible drilling costs and equipment expenses, and they caused
investors to file false tax returns by sending them inaccurate
information regarding their investments. Pet. App. A5-A6.
Most of the money paid by investors was not used to drill wells.
Petitioner and her husband instead deposited it in a number of bank
accounts owned by corporations they had set up, and they later withdrew
the investors' money and redeposited it in petitioner's personal
account. Out of the money generated by the swindle, only $1.1 million
was actually spent on oil drilling. The 20 percent share of the profit
that the investors were told the promoters would receive amounted to
only $110,000; yet, from 1984 until the indictment was returned in
1988, petitioner received approximately $1.3 million from the scheme,
which she spent on boats, jewelry, travel, and expensive automobiles.
Pet. App. A6.
2. On December 13, 1988, attorney Jon S. Blechman was assigned to
represent petitioner. Thereafter, Blechman notified the district court
and the government that four years earlier he had represented David
Ballard -- who was a participant in petitioner's fraudulent scheme and
was cooperating with the government -- on an unrelated perjury charge.
Prior to trial, petitioner and her husband filed pro se affidavits
seeking the discharge of their respective attorneys and appointment of
new counsel who were familiar with oil and gas law and with their
prospective defense based on a "self-dealing" clause in the partnership
agreements. Petitioner's affidavit also suggested that Blechman might
have a conflict of interest because of his prior relationship with
Ballard. Gov't C.A. Br. 24.
After the filing of the affidavits, the district court conducted an
in camera proceeding to resolve the conflict of interest issue.
Although aware of the proceeding, the government did not participate
because of concern on everyone's part about the possible disclosure of
privileged material pertaining to the defense. Before concluding the
hearing, the court asked the government to state whether it would call
Ballard as a witness, and the government responded that it would not.
The court then ruled that there was no existing conflict of interest
necessitating Blechman's replacement, because Blechman was not
representing Ballard and would not be called upon to cross-examine
Ballard at trial. Blechman notified petitioner, who was not present at
the hearing, of the court's ruling. Gov't C.A. Br. 24-25.
3. On appeal following her conviction, petitioner contended, among
other things, that Blechman had a conflict of interest stemming from his
representation of Ballard in the unrelated matter four years earlier,
and that the district court failed adequately to inquire into or advise
petitioner about the alleged conflict of interest. The court of appeals
held that those claims were "without merit and warrant(ed) no
discussion." Pet. App. A6.
1. Petitioner renews her claim (Pet. 8-10, 12-13) that she was denied
her Sixth Amendment right to counsel because her appointed attorney had
a conflict of interest arising from his previous representation of
Ballard. The district court correctly concluded that Blechman had no
conflict of interest.
Blechman had represented Ballard four years earlier with respect to a
matter that had no connection with the charges against petitioner in
this case. There was no ongoing attorney-client relationship between
Blechman and Ballard. In such circumstances, courts have found no
conflict of interest even where the former client was a government
witness at the defendant's trial. See Russell v. Lynaugh, 892 F.2d
1205, 1213-1214 (5th Cir. 1989), cert. denied, 111 S. Ct. 2909 (1991);
United States v. Paone, 782 F.2d 386, 392-393 (2d Cir. 1986), cert.
denied, 483 U.S. 1019 (1987); United States v. McClean, 528 F.2d 1250,
1257-1258 (2d Cir. 1976); see also United States v. Soto Hernandez, 849
F.2d 1325, 1328-1329 (10th Cir. 1988). Here, by contrast, although
Ballard was cooperating with the government, he was not called as a
government witness, and Blechman therefore was never placed in the
position of having to cross-examine his former client.
Petitioner argues (Pet. 10, 11-12) that the alleged conflict of
interest might account for Blechman's failure to call Ballard to testify
in petitioner's behalf. But it is inconceivable that Ballard, who was
cooperating with the government and assisting various victims of the
fraudulent scheme in civil proceedings seeking the return of their
money, would have been a favorable witness for the defense.
Petitioner's participation in the scheme was established by overwhelming
evidence showing that she was affiliated with companies involved in the
scheme and maintained offices at company headquarters; that she was
second in command to her husband and was expected to take over if
anything happened to him; that she traveled to Texas with investors to
view the drilling operations; that she participated in the seminars and
wrote to investors concerning details of the scheme; that she vouched
for lies told to investors concerning the status of the projects and
participated in an effort to thwart investor accounting demands; that
she concealed and destroyed incriminating records and made false
exculpatory statements to investigators; and that she was the principal
recipient of investor funds, which she laundered through her personal
accounts and spent on luxury purchases throughout the four-year period
of the scheme. Gov't C.A. Br. 11-16. As an insider who was intimately
familiar with petitioner's role in the scheme, Ballard undoubtedly would
have provided additional corroboration of the evidence summarized above.
In short, calling Ballard as a witness was not a reasonable option for
the defense, and Blechman's failure to do so, if he even considered the
possibility, was not remotely attributable to his previous
representation of Ballard. /1/
2. Petitioner further contends (Pet. 5-8, 10-13) that the district
court did not adequately inquire into her claim of a conflict of
interest.
In Holloway v. Arkansas, 435 U.S. 475, 484 (1978), this Court held
that when a trial court is notified of a potential conflict of interest,
it should conduct an inquiry to ensure that the defendant is not
deprived of his right to effective assistance of counsel. Here, after
the district court was informed of Blechman's earlier representation of
Ballard and received petitioner's motion to replace Blechman based in
part on that prior representation, the court conducted just such an
inquiry. It questioned Blechman about his attorney-client relationship
with Ballard and questioned the government about whether it intended to
call Ballard as a witness. Presumably because the inquiry was conducted
in camera, petitioner was not present. But the in camera nature of the
inquiry was necessitated by concerns about the disclosure of privileged
defense information, and there was no objection by the defense to
petitioner's absence from the inquiry. /2/
Nor is there merit to petitioner's contention that reversal is
required because the district court improperly failed to advise her
about the potential conflict of interest and give her an opportunity to
express her views. Petitioner principally relies (Pet. 6-8) on a prior
Second Circuit decision, United States v. Alberti, 470 F.2d 878 (1972),
that likewise involved a claim of a conflict of interest arising from
defense counsel's previous representation of a government witness.
There, the Second Circuit held that when a potential conflict of
interest is brought to the district court's attention, the court should
"see that the defendant is fully advised of the facts underlying the
potential conflict and is given an opportunity to express his or her
views." Id. at 882. But here, petitioner herself brought the
possibility of a conflict of interest to the court's attention by way of
a motion to replace counsel. In these circumstances, there can be no
doubt that petitioner knew of the issue, and she availed herself of the
opportunity to express her views on it. The district court then
inquired into the matter and concluded that no conflict of interest
existed. Nothing more was required.
In any event, the court in Alberti -- the same court that decided the
instant case -- held that a trial court's failure to conduct the
requisite inquiry and to advise the defendant and obtain his views does
not require reversal where no actual conflict of interest exists. 470
F.2d at 882. That result is consistent with numerous decisions holding
that, in the absence of an actual conflict of interest, reversal is not
required in the case of a violation of Fed. R. Crim. P. 44(c), which
requires a district court to conduct a conflict-of-interest inquiry and
advise the defendants in cases of joint representation. See, e.g.,
United States v. Pungitore, 910 F.2d 1084, 1140-1141 (3d Cir. 1990),
cert. denied, 111 S. Ct. 2009, 2010, 2011 (1991); United States v.
Arias, 678 F.2d 1202, 1205 (4th Cir.), cert. denied, 459 U.S. 910
(1982); United States v. Holley, 826 F.2d 331, 333 (5th Cir. 1987),
cert. denied, 485 U.S. 960 (1988); United States v. Colonia, 870 F.2d
1319, 1327 (7th Cir. 1989); United States v. Kindle, 925 F.2d 272, 275
(8th Cir. 1991); United States v. Crespo de Llano, 838 F.2d 1006, 1013
(9th Cir. 1987); United States v. Burney, 756 F.2d 787, 791 (10th Cir.
1985); United States v. Romero, 780 F.2d 981, 985 (11th Cir. 1986).
In this case, Blechman's previous representation of Ballard was four
years old and was unrelated to the prosecution of petitioner. It
therefore did not constitute the type of joint or simultaneous
representation that could form the predicate for a conflict of interest.
See Cuyler v. Sullivan, 446 U.S. 335, 348-350 (1980) ("until a
defendant shows that his counsel actively represented conflicting
interests, he has not established the constitutional predicate for his
claim of ineffective assistance"). Accordingly, any flaw in the
district court's handling of the matter would not warrant reversal.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
JOEL M. GERSHOWITZ
Attorney
DECEMBER 1991
/1/ Objections to trial counsel's performance should ordinarily be
presented in the first instance to the district court so that a record
may be developed and appropriate findings made. Here, petitioner's
conflict of interest claim was raised and adjudicated at trial, so a
record is available. Petitioner, however, waited until appeal to
complain about Blechman's failure to call Ballard as a defense witness.
Accordingly, no record has been specifically developed on that issue.
As discussed in the text, however, the present record is more than
sufficient to warrant the conclusion that Blechman's decision not to
call Ballard was not influenced by any conflict of interest.
/2/ Petitioner argues (Pet. 11) that the district court should have
renewed its inquiry into the alleged conflict of interest during trial
when Blechman announced his intention not to call any witnesses for the
defense. Petitioner, however, explicitly confirmed on the record her
unwillingness to testify (see Gov't C.A. Br. 26), and except for Ballard
(whose testimony would have been counterproductive), petitioner does not
suggest whom Blechman might have called. Further, it was the unified
defense strategy for co-defendant Thomas Hornick to take the stand and
exonerate petitioner (id. at 25-26); accordingly, it is far from true
that petitioner did not present a defense. In any event, there is no
plausible connection between Blechman's decision not to call any
witnesses and his representation of Ballard on an unrelated matter four
years earlier.
COMMISSIONER OF INTERNAL REVENUE, PETITIONER V. NADER E. SOLIMAN
No. 91-998
In The Supreme Court Of The United States
October Term, 1991
The Solicitor General, On Behalf Of The Commissioner Of Internal
Revenue, Petitions For A Writ Of Certiorari To Review The Judgment Of
The United States Court Of Appeals For The Fourth Circuit In This Case.
Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit
The opinion of the court of appeals (App., infra, 1a-11a) is reported
at 935 F.2d 52. The opinion of the Tax Court (App., infra, 12a-41a) is
reported at 94 T.C. 20.
The judgment of the court of appeals was entered on June 5, 1991. A
petition for rehearing with a suggestion of rehearing en banc was denied
on August 22, 1991, with three judges dissenting (App., infra, 44a).
The Chief Justice extended the time for filing a petition for a writ of
certiorari to and including December 20, 1991. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
Section 280A of the Internal Revenue Code, 26 U.S.C. 280A, provides
in pertinent part:
Section 280A. Disallowance of certain expenses in connection
with business use of home, rental of vacation homes, etc.
(a) General rule
Except as otherwise provided in this section, in the case of a
taxpayer who is an individual or an S corporation, no deduction
otherwise allowable under this chapter shall be allowed with
respect to the use of a dwelling unit which is used by the
taxpayer during the taxable year as a residence.
(c) Exceptions for certain business or rental use; limitation
on deductions for such use
(1) Certain business use
Subsection (a) shall not apply to any item to the extent such
item is allocable to a portion of the dwelling unit which is
exclusively used on a regular basis --
(A) (as) the principal place of business for any trade or
business of the taxpayer(.)
Whether an office maintained by a self-employed person in his
residence qualifies as his "principal place of business" under Section
280A of the Internal Revenue Code, 26 U.S.C. 280A -- and the expenses
related to that area of his home are therefore properly deducted in
computing his taxable income -- if he spends the majority of his time
working elsewhere in the course of performing the services from which
his income is derived.
1. Respondent is a self-employed anesthesiologist. During 1983,
respondent practiced his profession at Suburban Hospital in Bethesda,
Maryland, at Shady Grove Hospital in Rockville, Maryland, and at Loudon
Memorial Hospital in Leesburg, Virginia, where he administered
anesthesia to patients, cared for patients immediately after surgery,
and treated patients for pain. He spent 30 to 35 hours each week
working at these three hospitals. Approximately 80 percent of that time
(or about 28 hours each week) was spent at Suburban Hospital. None of
the hospitals provided respondent with a personal office (App., infra,
2a).
Respondent used a spare bedroom in his residential condominium as an
office, where he kept patient records, correspondence, billing records,
medical journals and texts. Respondent worked two to three hours a day
in his home office, where he spoke on the telephone with surgeons,
patients, and hospitals, kept records, prepared for treatments and
presentations, satisfied continuing medical education requirements and
kept abreast of advances in anesthesiology (App., infra, 2a, 8a; C.A.
App. 99).
In his federal income tax return, respondent claimed deductions for
condominium fees, utilities, and depreciation attributable to the home
office. He also claimed deductions for expenses incurred in driving
between his residence and the hospitals (App., infra, 9a). The
Commissioner disallowed these deductions because the office was not
respondent's "principal place of business" under Section 280A of the
Internal Revenue Code, 26 U.S.C. 280A (App., infra, 2a). /1/
2. Respondent filed a petition in the Tax Court seeking review of the
resulting deficiency (App., infra, 2a). A divided Tax Court concluded
that respondent's home office was his "principal place of business"
within the meaning of Section 280A. The Tax Court majority noted that
it previously had regarded the "focal point" of a taxpayer's business --
i.e., the place where goods and services are provided to customers and
revenues are generated -- as his "principal place of business" (id. at
18a). Under that "focal point" test, the court stated, respondent's
office at home was not his "principal place of business" because the
activities respondent performed at home, while "essential to his medical
practice" (ibid.), were "ancillary to the primary income-generating
services (respondent) performed as an anesthesiologist at the hospitals"
(ibid.).
The Tax Court majority observed (App., infra, 13a-14a), however, that
the validity of the "focal point" test had been questioned by the courts
of appeals in three cases reversing Tax Court decisions holding that the
taxpayer's home office was not his "principal place of business." See
Drucker v. Commissioner, 715 F.2d 67 (2d Cir. 1983); Weissman v.
Commissioner, 751 F.2d 512 (2d Cir. 1984); Meiers v. Commissioner, 782
F.2d 75 (7th Cir. 1986). The court therefore concluded that it would no
longer follow its "focal point" test and stated that it would instead
regard a taxpayer's office at home as his "principal place of business"
within the meaning of Section 280A when the "taxpayer's home office is
essential to his business, he spends substantial time there, and there
is no other location available to perform the office functions of the
business" (App., infra, 24a). The court held that respondent's home
office satisfied this standard even though respondent spent a greater
part of his working time at Suburban Hospital, where he performed his
most important work (id. at 23a). /2/
Chief Judge Nims dissented, joined by Judges Chabot, Parker, Clapp
and Parr. He pointed out that, in the decisions upholding home-office
deductions, the most important factor "was that the taxpayer spent the
majority of his or her business time at the 'home office,' rather than
at the place where goods or services were provided to customers or
clients or where income is produced" (App., infra, 28a). Chief Judge
Nims criticized the analysis of the Tax Court majority because it would
allow deductions for home office expenses even when the home is not the
"principal" place of business, as the statute requires. The majority's
test ignores the very reason that Section 280A was enacted: it "takes
us all the way back to square one; i.e., to the situation which existed
even before Congress took what it thought would be the remedial action
of section 280A" (App., infra, 29a).
Judge Ruwe dissented in a separate opinion, joined by Chief Judge
Nims and Judges Clapp and Parr. Judge Ruwe noted that the test adopted
by the Tax Court majority "eliminates the need to compare the importance
of home office activities with the importance of activities at the other
place of business or to compare the amount of time spent at the home
office with the amount of time spent at the other place of business"
(App., infra, 32a). In his view, the taxpayer's "principal place of
business" is the place where the "dominant portion of his work is
accomplished" (ibid., quoting from Weissman v. Commissioner, 751 F.2d at
514). Judge Ruwe concluded that, in overruling the "focal point" test,
the Tax Court majority failed to make "a specific qualitative
determination that the home office activities were at least as important
to the taxpayer's business as the activities performed away from the
home office" (id. at 36a). Judge Ruwe also pointed out (id. at 37a-39a)
that the decision in this case conflicts with Pomarantz v. Commissioner,
867 F.2d 495, 497-498 (9th Cir. 1988), where the court of appeals held
that the "principal place of business" of an emergency room physician
was the hospital where the taxpayer spent the majority of his working
time and performed the most important tasks of his profession.
3. A divided court of appeals affirmed. The majority noted (App.,
infra, 4a n.2) that the "focal point" test had been criticized in
Drucker, Weissman and Meiers. The court concluded that the new test
adopted by the Tax Court in this case "does not eviscerate the
requirements of section 280A, but simply replaces the inflexible and
potentially unjust 'focal point' test" with a standard that "more
accurately reflects the purposes and requirements of section 280A" (id.
at 6a (footnote omited)). The court stated that the new test adopted by
the Tax Court also is consistent with Proposed Treas. Reg. Section
1.280A-2(b)(3), which would allow traveling salesmen to deduct "home
office" expenses even though they spent most of their time on the road,
provided that they spend a substantial amount of time doing paperwork at
home. Although the majority acknowledged that the proposed regulation
was not binding on the Commissioner, it concluded that it "does evince a
policy to allow 'home office' deductions for taxpayers who maintain
'legitimate' home offices, even if the taxpayer does not spend a
majority of his time in the office" (App., infra, 5a-6a).
Judge Phillips dissented because the Tax Court analysis "eliminates
any need for comparing a taxpayer's use of several business locations to
determine which constituted his 'principal place of business'" (App.,
infra, 8a). He observed that "the term 'principal place of business'
compels an inquiry directed to that specific question -- which is the
one that is 'principal.' Otherwise Congress could have used language
such as 'essential place of business' or 'necessary place of business'"
(ibid.). Judge Phillips noted that all other decisions upholding
deductions for home office expenses involved "situations where the
taxpayer spent the majority of his time in his home office, or did his
most important work there, or both" (ibid.). Judge Phillips concluded
(ibid.) that the court should have followed the decision of the Ninth
Circuit in Pomarantz v. Commissioner, 867 F.2d at 497-498, where an
emergency care physician's deduction of "home office" expenses was
disallowed because his home was not his "principal" place of business.
The court of appeals held that an office located in a taxpayer's
residence -- where he performs purely administrative functions of his
business -- may be considered his "principal place of business" under
Section 280A even though the taxpayer spends a greater part of his
working time, and performs his most important professional functions, at
another place. This holding is in direct conflict with the decision of
the Ninth Circuit in Pomarantz v. Commissioner, 867 F.2d at 497, and
conflicts with the reasoning of the decisions of the Second Circuit in
Drucker v. Commissioner, and Weissman v. Commissioner, and of the
Seventh Circuit in Meiers v. Commissioner. The issue presented in this
case affects many thousands of individuals who maintain offices in their
homes but spend more time and perform their most important
income-producing tasks at other places of business. Unless the conflict
is resolved by this Court, these individuals will receive disparate tax
treatment based entirely upon the happenstance of their geographical
location.
1. To be deductible, the expenses of maintaining a home office must
not only be "ordinary and necessary" expenses of the taxpayer's business
under Section 162 of the Code, they must also satisfy the additional
requirements of Section 280A. See 26 U.S.C. 161, 261. Section 280A(a)
provides generally that no deduction is allowable "with respect to the
use of a dwelling unit which is used by the taxpayer * * * as a
residence." 26 U.S.C. 280A(a). Section 280A(c)(1)(A) makes an exception
to the general rule of nondeductibility, however, "to the extent such
item is allocable to a portion of the dwelling unit which is exclusively
used on a regular basis" as the "principal place of business for any
trade or business of the taxpayer." 26 U.S.C. 280A(c)(1)(A). /3/
Section 280A was enacted as part of the Tax Reform Act of 1976, Pub
L. No. 94-455, Section 601, 90 Stat. 1569-1572. The statute responded
to what Congress perceived to be "a great need for definitive rules * *
* as to the correct standard governing the deductibility of expenses
attributable to the maintenance of an office in the taxpayer's personal
residence" (H.R. Rep. No. 658, 94th Cong., 1st Sess. 160 (1975); S.
Rep. No. 938, 94th Cong., 2d Sess. Pt. 1, at 147 (1976)). Prior to
enactment of Section 280A, courts had permitted the deduction of "home
office" expenses under Section 162 whenever such expenses were
"appropriate and helpful" to the taxpayer's business. See, e.g., Newi
v. Commissioner, 432 F.2d 998 (2d Cir. 1970); Bodzin v. Commissioner,
60 T.C. 820 (1973), rev'd, 509 F.2d 679 (4th Cir.), cert. denied, 423
U.S. 825 (1975). Congress was concerned that (H.R. Rep. No. 658, supra,
at 160; S. Rep. No. 938, supra, at 147):
(i)n many cases the application of the appropriate and helpful
test would appear to result in treating personal living, and
family expenses which are directly attributable to the home (and
therefore not deductible) as ordinary and necessary business
expenses, even though those expenses did not result in additional
or incremental costs incurred as a result of the business use of
the home.
In enacting Section 280A, Congress intended substantially to limit the
deductibility of "home office" expenses by establishing stringent,
objective standards for deductibility. To this end, Congress generally
precluded the deduction of such expenses except when the home office is
the taxpayer's "principal place of business." 26 U.S.C. 280A(c)(1)(A);
see also note 3, supra.
2. The term "principal place of business" is not defined in the
statute. Prior to the decision in this case, however, the courts of
appeals had consistently applied the statutory term "principal" to mean
the primary or chief place of the business conducted by the taxpayer.
This comports with the dictionary definition of the word "principal,"
which is "first or highest in rank, importance, value, * * * chief,
foremost." Random House Dictionary Of The English Language 1539 (2d ed.
1987).
The determination of a taxpayer's "principal place of business"
requires a comparison of the various locations where the taxpayer
carries on his trade in order to determine the most significant, or
"principal," place of business. Before it issued its decision in this
case, the Tax Court had used a "focal point" test for this purpose. The
"focal point" test required a comparison of such objective factors as
the location where goods and services are provided to customers or
clients, the length of time spent by the taxpayer at each place of
business and the relative amount of income generated at each place of
business. See, e.g., Baie v. Commissioner, 74 T.C. 105 (1980). The
Second and Seventh Circuits cited these same factors, but gave greater
weight to the time spent by the taxpayer at each location and the
importance of the functions performed at each, with less emphasis on the
location where income is produced. Drucker v. Commissioner, 715 F.2d at
69 (majority of concert musician's work time spent practicing at home);
Weissman v. Commissioner, 751 F.2d at 514 (college professor had no
office on campus and spent 80% of his time working at home); Meiers v.
Commissioner, 782 F.2d at 79 ("a major consideration ought to be the
length of time the taxpayer spends in his home office"). The Ninth
Circuit, while declining to adopt "a specific standard," determined in
Pomarantz v. Commissioner, 867 F.2d at 497-498, that the taxpayer's
"principal place of business" is the place where he "consistently
spen(ds) more time on duty," where he exercises the skills constituting
"(t)he essence of his profession," and where he "generate(s) income."
Prior to the decision in this case, no court had held that a taxpayer's
home could be regarded as his "principal place of business" even though
he spent more of his working time and performed his most important work
elsewhere.
3. The court below held (App., infra, 3a-5a), however, that
respondent's spare bedroom was his "principal place of business" because
(i) an office was essential to his business, (ii) the hospitals (where
he spent most of his working time) did not provide him with an office
and (iii) he spent a substantial amount of time (approximately ten hours
per week) performing administrative tasks related to his profession in
his home office. Under the criteria adopted by the court of appeals in
this case, if the taxpayer's home office is appropriate and necessary to
his trade or business, that office may constitute the taxpayer's
"principal place of business" even though the bulk of the taxpayer's
work is performed at some other location or locations. The word
"principal" has thus been eliminated from the statute.
In this case, Suburban Hospital was respondent's "principal place of
business" in any ordinary sense of the term. The operating room and the
recovery room were the locations where respondent practiced medicine,
generated fees, and spent the greatest single segment of his working
time. The three hospitals at which he practiced were, in the aggregate,
the location of the preponderant majority of his working time. The
essence of his profession as an anesthesiologist is the preparation for
surgery, the administration of anesthesia to patients during surgery,
and the care of those patients immediately after surgery, tasks that can
not be performed other than at a hospital. The fact that respondent
also spends ten hours per week doing paperwork in his spare bedroom did
not make that room his "principal place of business."
4. The decision of the court of appeals conflicts with the decisions
of other courts of appeals. Had the court engaged in a comparative
analysis of the time and nature of the work performed by the taxpayer at
various job locations -- as required by the plain terms of Section 280A
and by decisions of the Second, Seventh and Ninth Circuits -- it would
have been compelled to conclude that respondent's business was centered
in the hospitals where he treated patients, not his office at home. As
Judge Phillips noted in dissent, the test endorsed by the majority
"avoids what I think a fair application of Section 280A(c)(1)(A) flatly
compels: a comparison of the uses of multiple business locations to
determine which is the principal place of business of a taxpayer" (App.,
infra, 10a).
The standard for deductibility adopted by the majority is virtually
the same as the "appropriate and helpful" test that Congress laid to
rest in enacting Section 280A. As Judge Phillips observed in his
dissent, Congress did not provide for the deduction of the expenses of
maintaining a home office if that office was an "essential place of
business" or a "necessary place of business" (App., infra, 8a). In
fact, a proposed Senate amendment would have allowed a deduction for
"home office" expenses "where no office or fixed location is provided by
the employer for use by the employee" (S. Rep. No. 938, supra, at 149),
but that proposal was rejected in conference (S. Conf. Rep. No. 1236,
94th Cong., 2d Sess. 435 (1976)). Instead, Congress made a deliberate
legislative judgment to preclude the deduction of any expenses incurred
in maintaining an office in a residence unless that office constitutes
the taxpayer's "principal place of business." By ignoring this plain
congressional mandate, the court of appeals has failed to honor the
clear language and history of the statute.
The court of appeals misinterpreted (App., infra, 4a) Drucker,
Weissman and Meiers in reaching its decision. Those cases support the
Commissioner's position that respondent's "principal place of business"
was Suburban Hospital, where he spent the largest segment of his working
time, as well as the largest segment of his time engaged in practicing
his profession. In choosing the taxpayer's "principal place of
business," the Second Circuit in Drucker emphasized that "(b)oth in time
and in importance, home practice was the 'focal point' of the appellant
musicians' employment-related activities" (715 F.2d at 69). Similarly,
in Weissman, that court defined "principal place of business" as "the
place where the dominant portion of (the taxpayer's) work is
accomplished" (751 F.2d at 514). In Meiers, the Seventh Circuit
compared the importance of the places of business "in terms both of
hours worked and * * * of functions performed," and expressed the view
that "a major consideration ought to be the length of time the taxpayer
spends in the home office as opposed to other locations" (782 F.2d at
79). /4/ And, significantly, in Pomarantz, the Ninth Circuit held that
the principal place of business of an emergency care physician was the
hospital where he worked because he "consistently spent more time on
duty at the hospital rather than at home" and "(t)he essence of his
profession is the hands-on treatment of patients" (867 F.2d at 963),
which he did only at the hospital. /5/ The decision in the present case
conflicts dramatically and irreconciliably with the decision in
Pomarantz, and is also inconsistent with the foregoing decisions of the
other courts of appeals.
5. The court of appeals erred in relying (App., infra, 5a-6a) on
Section 1.280A-2(b)(3) of the Proposed Income Tax Regulations, 45 Fed.
Reg. 52,399 (1980), as amended, 48 Fed. Reg. 33,320 (1983), which would
allow traveling salesmen to deduct "home office" expenses if they spend
substantial amounts of time doing paperwork at home. As the court of
appeals itself noted (App., infra, 4a-5a), it is well settled that
proposed regulations do not have any precedential force. E.g., Estate
of Leavitt v. Commissioner, 90 T.C. 206, 218 (1988), aff'd, 875 F.2d 420
(4th Cir.), cert. denied, 493 U.S. 958 (1989). In any event, the
proposed regulation does not support the Fourth Circuit's decision. As
pointed out by Judge Phillips in dissent, while traveling salesmen may
spend more time on the road than they do in their home offices, they may
spend more time working in their home offices than in any other single
place (App., infra, 10a n.5). Respondent, however, spent the majority
of his time at the three hospitals, spent more time at Suburban Hospital
than he did at his home office, and his office "is not the base for his
business in the same way that it would be for a salesperson" (ibid.)
6. The question presented in this case has substantial importance to
the proper administration of the tax laws because it affects many
thousands of individuals who perform some work at home but spend most of
their time and perform their most important work elsewhere. The courts
below have vastly expanded the class of taxpayers eligible to claim a
dededuction for "home office" expenses. Under the panel's opinion, many
taxpayers who perform incidental business duties at home may now take
the position on future returns -- or on amended returns seeking the
refund of taxes already paid -- that they are entitled to write off the
expenses of maintaining home offices even though they spend a greater
part of their time and perform their most important duties elsewhere.
/6/ For this reason, the decisions of the Tax Court and of the court of
appeals in this case have been the subject of widespread media
attention. For example, the New York Times has quoted a tax advisor as
"suggest(ing) that taxpayers with * * * home office(s) that * * * meet
the new test * * * file amended tax returns for the three years allowed
by the statu(t)e of limitations. Id. at F-17 (Mar. 11, 1990).
The decision of the court of appeals, if left intact, is thus apt to
precipitate a large number of new claims for home office deductions. As
Judge Phillips observed, the new standard adopted by the Tax Court and
by the court of appeals "requir(es) courts to weigh so many factors that
great uncertainty in the application of this critical tax concept is
bound to result" (App., infra, 10a). In the absence of a decision from
this Court resolving the conflict among the courts of appeals, the tax
treatment of "home office" deductions will differ from region to region
within the country, due solely to the federal circuit in which the
taxpayer happens to reside. Resolution of this recurring issue is
needed to avoid continuing uncertainty and restore even-handed
application of the revenue laws.
The petition for a writ of certiorari should be granted.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
SHIRLEY D. PETERSON
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
KENT L. JONES
Assistant to the Solicitor General
RICHARD FARBER
TERESA E. MCLAUGHLIN
Attorneys
DECEMBER 1991
/1/ Unless otherwise indicated, all statutory references are to the
Internal Revenue Code of 1954 (26 U.S.C.), as amended and in effect
during the year in issue (1983).
/2/ The Tax Court also allowed petitioner to deduct the expenses of
traveling between his home and the three hospitals, based on the court's
finding "that petitioner's home office is his principal place of
business" (App., infra, 21a). On appeal, the court of appeals did not
discuss this issue separately.
/3/ Expenses attributable to a home office that is not the taxpayer's
"principal place of business" may be deducted if the office is used
regularly and exclusively "as a place of business which is used by
patients, clients, or customers in meeting or dealing with the taxpayer
in the normal course of his trade or business" (Section 280A(c)(1)(B))
or if the office is housed in "a separate structure * * * not attached
to the dwelling unit" (Section 280A(c)(1)(C)). 26 U.S.C. 280A(c)(1)(B)
and (C).
In this case, it is undisputed that taxpayer did not meet with or
treat patients at home. There is also no claim that the home office was
located in a separate structure not attached to the dwelling unit.
/4/ In most cases, the taxpayer will spend the greatest part of his
time at the location where he performs his most important tasks, as is
true in this case. In our view, the place where the taxpayer performs
his most important, income-generating function, is his "principal place
of business," even if he spends some greater part of his time elsewhere.
The Second Circuit concluded in Drucker, however, that the most
important aspect of a musician's business was the time he spent
practicing and not the time he spent performing, and it concluded that
home practice rooms maintained by members of the Metropolitan Opera
orchestra were the musicians' principal places of business, rather than
Lincoln Center, as the Tax Court had found. Similarly, in Weissman it
rejected the Tax Court's conclusion that a salaried college professor
was paid to teach, concluding instead that his important function was to
publish scholarly materials, and that the home study where the professor
spent most of his time was a more important place of business than his
classroom. The approach taken by the Tax Court and the court of appeals
below is nonetheless manifestly at odds with the comparative analysis
the Second Circuit determined was necessary in Drucker and Weissman, as
well as with the Seventh Circuit's approach in Meiers.
/5/ The court of appeals majority did not even cite Pomarantz, much
less attempt to distinguish the case, even though Judge Phillips pointed
out in dissent (App., infra, 10a) that Pomarantz should be controlling
in this case.
/6/ For example, any teacher who lacks after-hours access to school
facilities might argue that he is entitled to deduct the expenses of
maintaining an area at home exclusively used for grading papers, or
planning lessons, even though in terms of both time and importance the
teaching profession is centered in the classroom and even though only
minor incremental costs are incurred in maintaining an office at home.
APPENDIX
UNITED STATES OF AMERICA, PETITIONER V. RALPH JOSEPH WALKER
No. 91-943
In The Supreme Court Of The United States
October Term, 1991
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 Tenth Circuit In This Case.
Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit
The opinion of the court of appeals, App., infra, 1a-12a, is reported
at 933 F.2d 812. The opinion of the court of appeals on denial of
rehearing, App., infra, 15a-24a, is reported at 941 F.2d 1086. The
opinion of the district court, App., infra, 25a-36a, is reported at 751
F. Supp. 199.
The judgment of the court of appeals was entered on May 7, 1991. A
petition for rehearing was denied on August 13, 1991. On November 4,
1991, Justice White extended the time for filing a petition for a writ
of certiorari to and including December 11, 1991. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
Whether a law enforcement officer may briefly question a lawfully
detained motorist concerning the presence of alcohol, drugs, weapons, or
large quantities of cash in the motorist's vehicle as part of the
detention justified by the initial stop.
1. On January 10, 1990, respondent was traveling in Utah on
Interstate 70 at a rate of 67 miles per hour, 12 miles per hour in
excess of the posted speed limit. After measuring respondent's speed by
radar, Officer Graham of the Emery County Sheriff's Department pulled
him over to issue a traffic citation. Before approaching respondent's
vehicle, Officer Graham ran a National Crime Information Center (NCIC)
computer check of the vehicle's license number and determined that the
car had not been reported stolen. Officer Graham then approached
respondent, informed him that he had been speeding, and asked respondent
for his driver's license and registration. Officer Graham also asked
respondent the point of origin and the destination of his trip. App.,
infra, 2a.
Respondent requested permission to get out of his car, and then
handed Officer Graham the vehicle registration. Respondent's hands were
visibly shaking as he attempted to remove his driver's license from his
wallet. The car was registered to one Marian Smith, not to respondent.
Respondent explained that Smith was his sister, and that she had
authorized him to use the car. App., infra, 2a-3a.
Officer Graham asked respondent if the vehicle contained any weapons,
open containers of alcohol, controlled substances or paraphernalia for
their use, or large quantities of cash. Respondent answered "no" to
every question, except that he informed Officer Graham that he had $1600
in cash in the glove compartment and $150 in cash on his person.
Officer Graham then requested, and received, respondent's permission to
search the car. App., infra, 3a.
After conducting a protective pat-down search of respondent's
clothing, Officer Graham searched the passenger compartment of the car
and found the cash that respondent had admitted possessing. Officer
Graham then requested and obtained the key to the trunk, where he found
two packages wrapped in plastic tape that appeared to be kilogram
packages of cocaine. Officer Graham arrested respondent and later
obtained a search warrant for the vehicle. The subsequent
warrant-authorized search disclosed 86 additional kilogram packages of
cocaine. App., infra, 3a-4a.
2. Respondent was indicted in the United States District Court for
the District of Utah on one count of possession of cocaine with the
intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He moved
to suppress the cocaine on the ground that the traffic stop was a
pretext for investigating an unrelated crime for which Officer Graham
lacked reasonable suspicion. Respondent further contended that Officer
Graham's questioning about the contraband was not justified by the stop.
App., infra, 29a.
The district court rejected the pretext claim, finding that a
reasonable officer would have made the traffic stop under the
circumstances presented here. App., infra, 30a. The court, however,
agreed with respondent's contention that Officer Graham's questioning
violated the Fourth Amendment. Citing United States v. Guzman, 864 F.2d
1512 (10th Cir. 1988), the district court held that because respondent
had produced proof that he was entitled to operate the vehicle, Officer
Graham could do no more than write a citation and send him on his way,
absent reasonable suspicion of other criminal activity. The court held
that, on the facts of this case, reasonable suspicion of other crimes
was not present. App., infra, 31a-35a.
3. The court of appeals affirmed. While finding that the initial
stop was valid, the court concluded that Officer Graham's questions were
unlawful because they were unrelated to the rationale for the initial
stop -- i.e., the issuance of a speeding ticket -- and to the driver's
right to operate the vehicle. In the court of appeals' view, "the
officer making a traffic stop may request a driver's license and
registration, run a computer check, and issue a citation." App., infra,
8a. But "(o)nce the driver has produced a valid license and proof that
he is entitled to operate the car, 'he must be allowed to proceed on his
way, without being subject to further delay by police for additional
questioning.'" Ibid. (quoting Guzman, 864 F.2d at 1519). The court
rejected the argument that the questions were part of a consensual
exchange between respondent and Officer Graham; in the court's view,
Officer Graham's retention of respondent's license and registration
deprived respondent of his freedom to leave. The court also held that
the district court had not clearly erred in finding that respondent's
continued detention was unjustified by reasonable suspicion of criminal
activity. Id. at 9a-11a. The court then remanded the case to the
district court to determine whether respondent's ultimate consent to
search the vehicle was "sufficiently an act of free will to purge the
primary taint" of the unlawful detention. Id. at 11a-12a (quoting Brown
v. Illinois, 422 U.S. 590, 602 (1975)).
4. The government petitioned for rehearing. The court denied the
petition, but issued a supplementary opinion further explaining its
decision. The court reiterated its holding that Officer Graham's brief
questions were unlawful because "there was no objective reasonable
suspicion to detain (respondent) for questioning about contraband."
App., infra, 16a. The court went on to explain that although some
Fourth Amendment intrusions may be lawful without any individualized
reasonable suspicion, the governmental interest in detecting the
unlawful transportation of alcohol, drugs, and weapons on the public
highways did not justify the intrusion caused by the questions that
Officer Graham had asked respondent during the traffic stop. Id. at
16a-23a.
The court acknowledged that the duration and intensity of the
additional questions was analogous to the level of intrusion of the
random sobriety checkpoint stops that this Court recently found
reasonable in Michigan Dep't of State Police v. Sitz, 110 S. Ct. 2481,
2486 (1990). But because Officer Graham was "free to choose" which
drivers to detain for further questioning, the court below regarded the
"subjective intrusion" as being considerably greater than that incident
to a routine checkpoint stop. App., infra, 18a-19a. While the court
acknowledged the public's substantial interest in detecting illegal
drugs and other contraband on the highways, it concluded that the record
did not contain evidence that the brief questioning of validly stopped
motorist would be effective in detecting contraband. Id. at 20a-21a.
Finally, the court held that the incidental intrusion in this case was
greater than the intrusion of directing a validly stopped motorist to
exit his or her vehicle for the safety of the offcer -- a practice that
was approved, despite a lack of any reasonable suspicion of danger, in
Pennsylvania v. Mimms, 434 U.S. 106 (1977). App., infra, 21a-22a.
The court of appeals adopted a rigid code of police conduct that
forbids a police officer from extending a valid traffic stop long enough
to ask a motorist a few brief "yes" or "no" questions concerning whether
he or she is transporting dangerous contraband on the public highways.
The court's rigid prohibition on brief questions that are reasonably
related to the safe and lawful operation of a motor vehicle cannot be
reconciled with this Court's decisions that permit an officer conducting
a valid traffic stop to ask a motorist routine questions about his or
her driver's license, vehicle registration, and similar matters, even in
the absence of suspicion of wrongdoing. See New York v. Class, 475 U.S.
106, 115 (1986); cf. Delaware v. Prouse, 440 U.S. 648, 659 (1979). The
court's condemnation of Officer Graham's question about weapons,
moreover, conflicts with this Court's clear teaching that an officer
conducting a routine traffic stop may take reasonable steps to ensure
his or her own safety. Pennsylvania v. Mimms, 434 U.S. 106 (1977). In
addition, the court below incorrectly struck the Fourth Amendment
balance between the critical public interest in detecting drugs and
other contraband on the public highways, see Michigan Dep't of State
Police v. Sitz, 110 S. Ct. at 2485-2486 (drunken driving); NTEU v. Von
Raab, 489 U.S. 656, 668-669 (1989) (illegal drugs); Michigan v. Long,
463 U.S. 1032, 1049 (1983) (concealed weapons), and the truly minimal
intrusion that Officer Graham's questions represent, see Pennsylvania v.
Mimms, 434 U.S. at 111; United States v. Martinez-Fuerte, 428 U.S. 543,
546-547, 560, 563-564 (1976).
1. The court of appeals required reasonable suspicion for Officer
Graham's questions about contraband because, in its view, those
questions were not reasonably related to the traffic stop. App., infra,
8a. This Court, however, has indicated that an officer may check a
motorist's license, vehicle registration, and vehicle identification
number as part of a traffic stop. Class, 475 U.S. at 115; cf. Prouse,
440 U.S. at 659. Moreover, the court of appeals indicated that Officer
Graham acted constitutionally when he conducted an NCIC computer check
to see if respondent's vehicle was stolen. App., infra, 8a. Thus, it
is clear that, even absent reasonable suspicion, an officer may make
brief inquiries to determine that the vehicle is not being operated in
violation of law.
Officer Graham's questions were reasonably related to that same
purpose. His questions pertaining to open containers of alcohol and
illegal narcotics and paraphernalia for their use are reasonably related
to the valid operation of the motor vehicle itself. See Utah Code Ann.
Section 41-6-44 (Supp. 1991) (unlawful to drive under the influence of
alcohol or drugs); Section 44-6-44.20 (Supp. 1991) (forbidding
transportation of open containers in passenger compartment on highway);
Section 58-37-13(e) (Supp. 1991) (vehicles used to transport controlled
substances are subject to forfeiture; no property right exists in
them). /1/ An officer, moreover, must be able to inquire into possible
reasons for the commission of a traffic offense, such as speeding.
"(C)ommon sense and ordinary human experience," United States v. Sharpe,
470 U.S. 675, 685 (1985), indicate that questions about the presence of
open containers of alcohol, or illegal drugs and paraphernalia for their
use, are reasonably related to ascertaining why a motorist was traveling
at an unlawful and unsafe rate of speed. Such questions are also
related to the officer's task of determining whether it is safe for the
motorist to resume his or her journey. Given "the slaughter on our
highways, and * * * the danger posed to almost everyone by the driver
who is under the influence of alcohol or other drug," Sitz, 110 S. Ct.
at 2488 (Blackmun, J., concurring in the judgment), it was entirely
reasonable for Officer Graham to inquire briefly into those possible
explanations for respondent's speeding violation.
Officer Graham's question regarding weapons was related to the
traffic offense because it provided him with a basis for assuring his
own safety in issuing the citation. As this Court has noted, an officer
approaching a stopped car on a highway faces considerable risk of harm,
and must be allowed to take reasonable steps to secure his or her own
safety. Mimms, 434 U.S. at 110; Class, 475 U.S. at 116-119. Asking a
motorist if he or she is transporting any concealed weapons in the
vehicle may aid the officer in determining if the stop involves a
security risk, and it is significantly less intrusive than an officer's
direction that a motorist get out of his or her car while the officer
conducts the traffic stop, /2/ a procedure that this Court has upheld
even in the absence of articulable grounds for suspicion that the
motorist is armed or dangerous. Mimms, 434 U.S. at 109-111.
2. In a variet of contexts, this Court has declined to require
reasonable suspicion to sustain minimal intrusions incidental to a valid
stop. Consistent with the principle that Fourth Amendment analysis
always turns on "the reasonableness in all the circumstances of the
particular governmental invasion of a citizen's personal privacy,"
Mimms, 434 U.S. at 109 (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)),
this Court weighs the incidental intrusion of the law enforcement
practice at issue against the public interest served by it. See
Martinez-Fuerte, 428 U.S. at 546-547, 560, 563-564; Mimms, 434 U.S. at
109-111; Class, 475 U.S. at 118-119. /3/ Because the decision below
hampers legitimate law enforcement efforts without making any material
contribution to legitimate privacy interests, review by this Court is
warranted.
a. As discussed, Officer Graham's brief questions were reasonably
calculated to determine if respondent was transporting open containers
of alcohol, illegal drugs and paraphernalia for their use, or concealed
weapons on the public highways. The public interest in detecting the
transportation of such contraband on the highways is substantial. /4/
This Court has recently noted "the magnitude of the drunken driving
problem" and the many instances of "alcohol-related death and mutilation
on the Nation's roads." Sitz, 110 S. Ct. at 2485. In addition,
narcotics smuggling has caused "a veritable national crisis in law
enforcement." Von Raab, 489 U.S. at 668 (quoting United States v.
Montoya de Hernandez, 473 U.S. 531, 538 (1985)). "(T)hrough the adroit
selection of source locations, smuggling routes, and increasingly
elaborate methods of concealment, drug traffickers have managed to bring
into this country increasingly large quantities of illegal drugs." Id.
at 669. Finally, an officer approaching a person seated in an
automobile faces an "inordinate risk" of harm; a "significant
percentage" of police murders occur during minor traffic stops. Mimms,
434 U.S. at 110; Michigan v. Long, 463 U.S. 1032, 1049 (1983); Adams
v. Williams, 407 U.S. 143, 147-148 & n.3 (1972). Thus, the government
has a significant interest in detecting concealed weapons in stopped
vehicles.
b. What is "critical," Class, 475 U.S. at 118, however, is the
minimal degree of the incidental intrusion that the court of appeals
condemned. The court below indicated that an officer may ask a validly
stopped motorist the same four or five brief questions concerning
contraband while awaiting the results of the NCIC check. App., infra,
9a n.2 (citing United States v. Morales-Zamora, 914 F.2d 200 (10th Cir.
1990)). Moreover, if the officer has returned the driver's license and
registration, the officer is again free to inquire about contraband.
United States v. Turner, 928 F.2d 956, 959 (10th Cir.), cert. denied,
112 S. Ct. 230 (1991); United States v. Werking, 915 F.2d 1404, 1409
(10th Cir. 1990). Hence, the intrusion that the court of appeals found
unconstitutional consists of the brief period that an officer extends a
traffic stop by asking four or five questions concerning dangerous
contraband after the NCIC check has come back but before the officer has
returned the driver's license and registration. /5/
The court of appeals acknowledged that the scope of the "objective
intrusion" -- as measured by the duration and intensity of Officer
Graham's questions -- was "not unlike" other intrusions that this Court
has upheld in the absence of reasonable suspicion. App., infra, 18a
(citing Sitz, 110 S. Ct. at 2484, 2486 (upholding questioning of
approximately 25 seconds at sobriety checkpoint)). The court, however,
found that the brief delay to ask the questions here caused an
unacceptably high "subjective intrusion" because of "the fear and
surprise engendered in law abiding motorists" by the government's
action. Ibid. That subjective intrusion was unacceptable, in the
court's view, because Officer Graham was free to select which motorists
he would ask about contraband. App., infra, 18a-19a.
In view of the de minimis intrusion to which the court below
objected, however, that concern is misplaced. The court asserted that
the questions concerning contraband would engender fear and resentment
on the part of lawful motorists who were validly stopped for traffic
offenses. App., infra, 20a. Even assuming that were correct, /6/
however, it would be beside the point. As discussed, the court
suggested that Officer Graham's questions about contraband would have
been permissible if asked while awaiting the NCIC check. Id. at 9a
n.2(citing United States v. Morales-Zamora, supra). Thus, the court did
not condemn official discretion to ask a validly stopped motorist brief
questions concerning dangerous contraband, but condemned official
discretion to delay a traffic stop, however briefly, to ask such
questions.
By condemning the exercise of any official discretion with respect to
so minor an intrusion, the court of appeals brought itself into conflict
with the decisions of this Court. Thus, in Martinez-Fuerte, the Court
approved the secondary referral of a small number of motorists who were
already validly stopped at an immigration checkpoint, even though that
referral involved three to five minutes of additional questioning and
was not based upon "any articulable suspicion." 428 U.S. at 547, 560,
563. The Court explained that "(a)sthe intrusion here is sufficiently
minimal that no particularized reason need exist to justify it, we think
it follows that the * * * officers must have wide discretion in
selecting the motorists to be diverted for the brief questioning
involved." Id. at 563-564. By the same token, "officers may * * *
exercise their discretion to require a driver who commits a traffic
violation to exit the vehicle even though they lack any particularized
reason for believing that the driver possesses a weapon." Class, 475
U.S. at 115 (citing Mimms, 434 U.S. at 108-111). Although official
discretion is involved in such cases, the "additional intrusion can only
be described as de minimis." Mimms, 434 U.S. at 111.
3. This case raises a question of substantial importance concerning
the ability of law enforcement officers to detect dangerous contraband
on public highways. /7/ The court of appeals' opinion creates a
labyrinth of arbitrary Fourth Amendment distinctions that will ensnare
even the most prudent officer. /8/ The court's ruling offers no
guidance to officers in determining which inquiries are permissible,
absent reasonable suspicion, and which are not. Here, the court
indicated that questions concerning the presence of dangerous contraband
in respondent's vehicle were "unrelated" to his speeding offense or his
right to operate the vehicle. App., infra, 8a. But those questions had
a very direct bearing on whether respondent was operating his vehicle in
violation of the law, on the reasons for respondent's unlawful and
unsafe rate of speed, and on Officer Graham's own safety in making the
stop and writing the citation. See pp. 7-9, supra.
At the same time, the court of appeals has indicated that an officer
conducting a traffic stop may run an NCIC check to see if a vehicle is
stolen, App., infra, 7a-8a, or may ask a motorist about his or her
travel plans, United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.
1989). /9/ Because such inquiries, like those held unconstitutional
here, are designed to elicit information regarding whether a traffic
offense indicates more serious wrongdoing, it is impossible to discern
any principle by which an officer may determine what is, or is not,
related to a speeding offense or to the driver's right to operate a
vehicle. /10/ Hence, without any appreciable contribution to legitimate
privacy interest, the rigid rules established by the Tenth Circuit have
sown unnecessary and burdensome confusion in the law governing routine
traffic stops.
Finally, because questions about contraband would be valid if asked
while the officer was awaiting an NCIC check, the Tenth Circuit
presumably must now examine whether the officer has unreasonably delayed
the processing of the citation to ask the motorist about contraband.
Thus, instead of giving his or her full attention to circumstances that
alert a trained and experienced officer to the possibility of wrongdoing
or danger, the officer must now give constant attention to whether his
or her questions risk delaying the processing of the citation.
Alternatively, of course, the officer may stop before asking any
question, and attempt to make a mental calculation of whether he or she
has reasonable suspicion to ask that particular question. Such a
requirement, however, not only is impracticable, but is inconsistent
with the Fourth Amendment principles laid down by this Court. Cf.
Berkemer v. McCarty, 468 U.S. 420, 435 n.22 (1984) ("by requiring a
policeman conversing with a motorist constantly to monitor the
information available to him to determine when it becomes sufficient to
establish probable cause, the rule * * * would be extremely difficult to
administer"); United States v. Robinson, 414 U.S. 218, 235 (1973) (an
"officer's determination as to how and where to search the person of a
suspect whom he has arrested is necessarily a quick ad hoc judgment
which the Fourth Amendment does not require to be broken down in each
instance into an analysis of each step in the search"). Review by this
Court is warranted to restore predictability and rationality to the
rules that guide officers in conducting routine traffic stops.
The petition for a writ of certiorari should be granted.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
WILLIAM C. BRYSON
Deputy Solicitor General
JOHN F. MANNING
Assistant to the Solicitor General
DECEMBER 1991
/1/ Officer Graham asked respondent if his vehicle was carrying any
open containers of alcohol, weapons, controlled substances or
paraphernalia, or large quantities of cash (in excess of $1000). Tr.
12. While carrying large quantities of cash itself is not unlawful, it
is often associated with drug trafficking. See United States v.
Sokolow, 490 U.S 1, 8-9 (1989); Tr. 14. Numerous reported decisions
catalogue seizures of large quantities of cash together with either
drugs or drugs and weapons from motorists. See, e.g., United States v.
Ross, 456 U.S. 798 (1982); United States v. House, 939 F.2d 659, 661
(8th Cir. 1991); United States v. Cox, 934 F.2d 1114, 1118 (10th Cir.
1991); United States v. McDonald, 933 F.2d 1519, 1520 (10th Cir.),
cert. denied, 112 S. Ct. 270 (1991); United States v. Wylie, 919 F.2d
969, 971 (5th Cir. 1990); United States v. Johnson, 886 F.2d 1120, 1121
(9th Cir. 1989), cert. denied, 494 U.S. 1089 (1990); United States v.
Hardy, 855 F.2d 753, 756 (11th Cir. 1988), cert. denied, 489 U.S. 1019
(1989); United States v. Zambrana, 841 F.2d 1320, 1324 (7th Cir. 1988).
/2/ An officer's unexplained directive for a motorist to exit his or
her vehicle not only creates the potential concern that the officer
suspects wrongdoing, but also suggests the possibility that the officer
may be anticipating some sort of physical confrontation, such as taking
the motorist into custody.
/3/ This Court has taken a similar approach in other Fourth Amendment
contexts as well. See, e.g., Michigan v. Summers, 452 U.S. 692, 702-705
(1981) (upholding detention of occupant of home while police execute
warrant to search that home); New York v. Belton, 453 U.S. 454, 460-461
(1981) (police may search entire passenger compartment of vehicle,
including containers, incident to lawful custodial arrest of vehicle's
occupant); United States v. Robinson, 414 U.S. 218, 234-235 (1973)
(search incident to arrest for driving without a license).
/4/ The court of appeals based its judgment in part on the lack of
empirical evidence in the record that the brief questioning of validly
stopped drivers about contraband is "effective." App., infra, 21a. But
as this Court has observed, "common sense and ordinary human experience
must govern" the inquiry into the reasonableness of a detention.
Sharpe, 470 U.S. at 685. As this case and numerous other cases confirm,
see, e.g., United States v. Turner, 928 F.2d 956, 958-959 (10th Cir.),
cert. denied, 112 S. Ct. 230 (1991); Guzman, 864 F.2d at 1519-1520, the
brief questioning of validly stopped motorists is effective in detecting
the transportation of contraband on the public highways. While some
motorists who may be carrying contraband or weapons may be able to give
convincing disclaimers when questioned by the police, others turn out to
be very unconvincing liars. As a result, an officer can often obtain
important information, with very little additional intrusion, by being
able to observe a validly stopped motorist's reactions to a few brief,
direct questions about the presence of contraband in the motorist's
vehicle.
/5/ In this case only five minutes elapsed between the beginning of
the stop and Officer Graham's request for consent to search the vehicle.
Tr. 18. That time included aspects of the stop of which the court of
appeals approved, such as Officer Graham's questioning of respondent
about the fact that the car was registered in someone else's name.
Ibid.
/6/ From the perspective of the "lawful traveler," Martinez-Fuerte,
428 U.S. at 558, the brief and direct questions asked by Officer Graham
should cause little concern or fear. A traffic stop typically involves
inquiries into such matters as the validity of the motorist's license
and the ownership and registration status of the vehicle. In that
context, a motorist readily understands that nonaccusatory inquiries are
not unusual as part of a traffic stop. Moreover, the questions asked by
Officer Graham related to diverse categories of contraband. A lawful
motorist, therefore, would quickly be able to perceive that the
questions were genuinely inquisitive, and not accusatory.
/7/ Related issues include whether an officer may conduct a warrant
check during a routine traffic stop, compare, e.g., United States v.
Luckett, 484 F.2d 89, 90-91 (9th Cir. 1973) (warrant checks may not
extend time necessary to issue routine traffic citation), and People v.
McGaughran, 25 Cal. 3d 577, 584-587, 601 P.2d 207, 211-213, 159 Cal.
Rptr. 191, 195-197 (1979) (same), with People v. Eyler, 132 Ill. App. 3d
792, 798, 477 N.E.2d 744, 780 (1985) (warrant check valid part of Terry
stop), cert. denied, 481 U.S. 1007 (1987), and Storm v. State, 736 P.2d
1000, 1001 (Okla. Crim. App. 1987) (routine warrant check permissible as
part of traffic stop); whether an officer may extend a routine traffic
stop to make a brief visual inspection of the interior of the vehicle,
compare, e.g., United States v. Daniel, 725 F. Supp. 532, 533 (M.D. Ga.
1989) (detention for visual inspection of passenger invalid), with State
v. Jackson, 296 Or. 430, 438, 677 P.2d 21, 25-26 (1984) (visual
inspection with flashlight valid de minimis additional intrusion); and
whether an officer may require a motorist to show legally required proof
of financial responsibility as part of a traffic stop, see, e.g.,
Sherman v. Babbitt, 772 F.2d 1476, 1478 (9th Cir. 1985). This Court's
guidance on the issue presented in this case will assist the lower
courts in resolving many of these issues.
/8/ The court of appeals' categorical legal rule limiting the scope
of valid traffic stops would apply to future cases within the Tenth
Circuit's jurisdiction, regardless of the outcome of the hearing on
remand concerning whether respondent's consent to the search of his
vehicle dissipated the taint of the Fourth Amendment violation found
here. Indeed, the decision below was itself an application of the Tenth
Circuit's prior decision in United States v. Guzman, supra. In Guzman,
864 F.2d at 1521, as in this case, App., infra, 11a-12a, the court of
appeals remanded the case to the district court because the latter had
not addressed whether the motorist's consent to search was sufficiently
an act of free will to purge the primary taint of the incremental delay
in the stop. The rigid code of police conduct embraced in Guzman and in
this case not only unreasonably hampers legitimate law enforcement
efforts on a daily basis, but also materially enhances the risks faced
by officers in the field, who may not ask a validly stopped motorist if
there is a concealed weapon in the motorist's vehicle.
/9/ Officer Graham asked respondent where his trip originated and
what his destination was. App., infra, 2a. The court did not address
the validity of that question in this case.
/10/ For example, the court of appeals in Guzman held that, absent
reasonable suspicion, an officer may not look at a vehicle's odometer
during the course of a valid traffic stop. 864 F.2d at 1519. Moreover,
while the court below stated that "ordinary conversation" is
permissible, App., infra, 22a n.3, the court did not suggest how
officers in the field may determine when they have crossed the line
separating ordinary conversation from unlawful questioning.
APPENDIX
WILLIAM P. BARR, ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
PETITIONERS V. JENNY LISETTE FLORES, ET AL.
No. 91-905
In The Supreme Court Of The United States
October Term, 1991
The Solicitor General, On Behalf Of William P. Barr, Attorney General
Of The United States, Et Al., Respectfully Petitions For A Writ Of
Certiorari To Review The Judgment Of The United States Court Of Appeals
For The Ninth Circuit In This Case.
Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
Petitioners here are William P. Barr, Attorney General of the United
States, Immigration and Naturalization Service, and Ben Davidian,
Western Regional Commissioner of the Immigration and Naturalization
Service.
Respondents in this Court are Jenny Lisette Flores, a minor, by next
friend Mario Hugh Galvez-Maldonado; Dominga Hernandez-Hernandez, a
minor, by next friend Jose Saul Mira; and Alma Yanira Cruz-Aldama, a
minor, by next friend Herman Perililo Tanchez.
The opinion of the court of appeals sitting en banc (App. 1a-69a) is
reported at 942 F.2d 1352. The opinion of the panel of the court of
appeals (App. 70a-144a) is reported at 934 F.2d 991. /1/ The order of
the district court (App. 145a-147a) is unreported.
The judgment of the court of appeals was entered on August 9, 1991.
On October 30, 1991, Justice O'Connor extended the time for filing a
petition for a writ of certiorari to and including December 7, 1991.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. The Habeas Corpus Clause, Article I, Section 9, Clause 2,
provides: "The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it."
2. The Fifth Amendment provides, in relevant part: "No person shall
* * * be deprived of life, liberty, or property, without due process of
law."
3. 8 U.S.C. 1252(a)(1) and 1357(a)(2) are set forth in an appendix
(App. 206a-207a).
4. 8 C.F.R. 242.2, 242.24 and 287.3 are set forth in an appendix
(App. 207a-221a).
Pursuant to 8 U.S.C. 1252(a)(1), the Immigration and Naturalization
Service (INS) frequently retains custody of aliens under the age of 18
who are charged with being deportable, in circumstances where there is
no parent, legal guardian, or other related adult available to care for
the child. By regulation INS must establish a prima facie case of
deportability to an examining officer within 24 hours. 8 C.F.R. 287.3.
The child thereafter may seek an additional hearing before an
immigration judge. 8 C.F.R. 242.2(d). If the child is not released,
the regulations require INS to place the child in special alien
child-care facilities until a related adult or legal guardian can be
located or the deportation proceedings are concluded. The questions
presented by this case are two:
1. Whether the regulations violate the substantive due process
component of the Fifth Amendment, or any other provision of the
Constitution, because the regulations ordinarily prohibit release of
these children to unrelated adults.
2. Whether the procedures violate the Due Process Clause of the Fifth
Amendment because (a) once the examining officer has determined that
there is a prima facie case of deportability, INS does not hold
additional hearings to determine probable cause except upon request, or
because (b) INS denies release of the children to unrelated adults
without conducting individualized hearings to determine whether an
unrelated adult seeking custody poses a risk of harm to the child.
This case involves the response of the Immigration and Naturalization
Service (INS) to a difficult and frequent problem: how to care for
unaccompanied alien children pending hearings on their deportability.
INS has concluded that it should release such children to their parents,
legal guardian, or other related adults, but if none of those persons
are avaiable, it normally should entrust their care to special
child-care facilities monitored by the Department of Justice. Although
the court of appeals concluded that INS's procedures satisfy applicable
statutory requirements, it nevertheless held that the Constitution
requires INS to release the children to unrelated adults willing to
assure the children's presence at subsequent administrative hearings,
except in cases where INS can demonstrate that the adults would harm the
children.
1. Congress has recognized that effective enforcement of United
States immigration laws necessarily requires power to arrest and detain
aliens suspected of unlawful entry. Accordingly, 8 U.S.C. 1357(a)(2)
authorizes INS to arrest an alien without a warrant if it has reason to
believe the alien is deportable and would escape before a warrant could
be obtained. Upon arrest, the statute requires that "the alien * * *
shall be taken without unnecessary delay for examination before an
officer of the Service having authority to examine aliens as to their
right to enter or remain in the United States." INS regulations require
the proceedings before the examining officer to take place "promptly,
and in any event within 24 hours." 8 C.F.R. 287.3. The examining
officer can continue the detention only if it finds that "there is prima
facie evidence that the arrested alien is in the United States in
violation of law()." Ibid. /2/
Section 1252(a)(1) grants the Attorney General broad discretion to
determine whether to continue the custody of the aliens detained under
these provisions, to release the aliens on bonds "containing such
conditions as the Attorney General may prescribe," or to release the
aliens on conditional parole. /3/ Pursuant to regulations, the detained
alien must be advised that the decision whether he will be released will
be made within 24 hours. 8 C.F.R. 287.3. If INS determines to maintain
custody, 8 C.F.R. 242.2 requires it to advise the alien of his rights,
including his right to be represented by legal counsel of his choice (at
no expense to the government), as well as the basis for his arrest, the
conditions under which his release has been authorized, and his right to
request a hearing before an immigration judge. 8 C.F.R. 242.2(c)(2).
/4/ At any time after deportation proceedings are commenced and before
the deportation order becomes final, the alien may apply to an
immigration judge "for release from custody or for amelioration of the
conditions under which he or she may be released." 8 C.F.R. 242.2(d).
2. In response to an ever-growing multitude of deportable children
found by INS without their parents or other related adults, /5/ the
Attorney General has exercised his authority under this statutory scheme
to promulgate specific regulations governing the custody and release of
alien children arrested on deportation charges. 8 U.S.C. 1252(a)(1).
The regulations generally provide for release to those individuals
historically recognized as appropriate custodians under state law:
relatives or legal guardians.
a. First, these regulations require the release of children, "in
order of preference, to: (i) A parent; (ii) legal guardian; or (iii)
adult relative (brother, sister, aunt, uncle, grandparent) who are not
presently in INS detention," unless INS determines that detention is
necessary to ensure presence at the deportation hearing or to ensure the
safety of the child or others. 8 C.F.R. 242.24(b)(1). Second, if none
of these individuals can be located other than in INS's custody, INS
will evaluate simultaneous release of the child and the adult "on a
discretionary case-by-case basis." Section 242.24(b)(2). Third, if the
parents or legal guardians are unavailable to assume custody because
they are outside the United States or in INS detention, "the juvenile
may be released to such person as designated by the parent or legal
guardian in a sworn affidavit." Section 242.24(b)(3).
If none of these procedures leads to release, INS "(i)n unusual and
compelling circumstances and in the discretion of the district director
or chief patrol agent" may release the child to some other adult. 8
C.F.R. 242.24(b)(4). An unrelated adult cannot obtain custody, however,
unless he "execut(es) an agreement to care for the juvenile's well-being
and to ensure juvenile's presence at all future proceedings." Section
242.24(b)(3) and (4).
b. If the child is not released, he does not remain in an
institutional facility. Instead, INS must make "suitable placement of
the juvenile in a facility designated for the occupancy of juveniles." 8
C.F.R. 242.24(c). /6/ Pursuant to an agreement reached at an earlier
stage of this litigation, INS must within 72 hours place the child in a
facility that meets or exceeds the detailed standards established by the
Alien Minors Shelter Care Program of the Community Relations Service in
the Department of Justice, 52 Fed. Reg. 15,569-15,573 (1987)
(hereinafter CRS Standards) (reprinted in App. 152a-167a). See
Memorandum of Understanding Re Compromise of Class Action: Conditions
of Detention, No. 85-4544-RJK (Px) (C.D. Cal. Nov. 30, 1987)
(hereinafter Child Care Memorandum), App. 148a-205a. /7/ The program is
designed "to establish a network of community based shelter care
programs" that can "provide a safe and appropriate environment for alien
minors" during the pendency of administrative proceedings. Id. at 170a.
Organizations seeking to provide care under the program must meet
"state licensing requirements for the provision of shelter care, foster
care, group care and related services to dependent children." Id. at
176a. /8/
The programs must provide not only for physical custody, but for
family reunification services, routine and emergency medical care,
comprehensive needs assesment, /9/ recreation, access to religious
services, and legal assistance. See CRS Standards, App. 159a; Child
Care Memorandum, App. 180a-186a. The program requires at least on
individual counseling session and at least two group counseling sessions
each week. Child Care Memorandum, App. 181a-182a. The program also
must include education "provided by a teacher certified by the State
Department of Education," which must "concentrat(e) primarily on the
development of basic academic competencies" and occur "in a structured
classroom setting, Monday through Friday." Id. at 182a-183a. The
facilities are to be operated "in a manner which is sensitive to
culture, native language and the complex needs of these children." Id.
at 173a. Finally, the facilities are to be operated "in an open type of
setting without a need for extraordinary security measures." Ibid.
3. Respondents filed this case in 1985, claiming that INS practices
with respect to detained children violate the Constitution and
applicable provisions of the immigration laws. The district court
granted respondents' motions for summary judgment in a brief order that
justified its holding only by stating that it relied "on due process
grounds." App. 146a.
The order went on grant considerable relief to respondents. First,
it invalidated the INS policy that limits release of children to
unrelated adults, by requiring INS to "release any minor otherwise
eligible for release on bond or recognizance to his parents, guardian,
custodian, conservator, or other responsible adult party." App. 146a.
The court did not permit INS to continue its practice of requiring
persons to whom it releases children to agree that they would care for
the children, but authorized INS only to "require from such persons a
written promise to bring such minor before the appropriate officer or
court." Ibid.
The order also invalidated the INS regulations regarding review of
the detention (which, as summarized above, provide for an automatic
initial examination, followed by a hearing before an immigration judge
only upon request): "Any minor taken into custody shall be forthwith
afforded an administrative hearing to determine probable cause for his
arrest and the need for any restrictions placed upon his release. Such
hearing shall be held with or without a request by or on behalf of the
minor." App. 146a.
4. A divided panel of the court of appeals reversed. App. 70a-144a.
a. Writing for two members of the panel, Chief Judge Wallace first
rejected respondents' claim that the child release policy established by
8 C.F.R. 242.24 transgressed the Attorney General's broad authority to
detain arrested aliens pending deportation proceedings pursuant to 8
U.S.C. 1252(a)(1). In the court's view, "the language and legislative
history of section 1252(a)(1) discloses no intent to limit the Attorney
General's power to detain arrested aliens." App. 83a. In particular,
the court noted that the "language discloses no limitation" whatsoever
"except perhaps that implied by the word 'discretion.'" Id. at 84a.
Moreover, the majority expressly rejected respondents' contention that
the Attorney General has no authority to detain aliens except to serve
the purpose of ensuring their future appearance at deportation
proceedings. Id. at 90a-91a.
b. Chief Judge Wallace then considered respondents' claim that the
INS program -- even if permitted by statute -- contravenes substantive
limitations imposed on the government by the Due Process Clause.
Acknowledging the plenary control of the political branches over
immigration (see App. 96a), he nevertheless concluded that "the
substantive component of the due process clause does operate as some
limited constraint on congressional power, though the scope of judicial
review is extremely narrow." Id. at 100a. In his view, the regulation
would be subject only to "rational basis" scrutiny, unless it infringed
upon a fundamental right. Id. at 100a-101a.
Chief Judge Wallace then delinated the nature of the alleged
fundamental right as "the right to be released to an unrelated adult,"
explaining that "the right at stake must be defined narrowly." App.
101a. He concluded: "Given the Constitution's assignment of the
plenary political power over deportation to the legislative and
executive branches, it is clear that no such right exists." Id. at 102a.
He noted that this decision was consistent with the Court's repeated
statement that the rights of children are not coextensive with those of
adults. See id. at 105a (citing Schall v. Martin, 467 U.S. 253, 263-266
(1984) (holding that a child's liberty interest may be restricted to
secure the child's welfare)).
Finally, Chief Judge Wallace concluded that the regulation survived
rational-basis scrutiny, because it was rationally related to legitimate
ends of the government, such as fostering the welfare and safety of the
children. App. 107a-109a.
c. Chief Judge Wallace then turned to respondents' procedural due
process claim. He expressed considerable confusion regarding the
meaning of the district court's requirement of an "administrative
hearing" that must occur "forthwith," noting that 8 C.F.R. 287.3 already
requires a hearing for aliens arrested without a warrant. App.
111a-113a. Accordingly, he concluded that the hearing referred to in
the order was a hearing before an immigration judge (that is the hearing
currently required upon request by 8 C.F.R. 242.2(d)). App. 112a-113a.
Based on his conclusion that the protections required for pretrial
detainees do not apply in civil deportation proceedings, Chief Judge
Wallace reversed this portion of the order. Id. at 113a-117a. In his
view, the procedural due process claim should have been decided by
analysis of the factors outlined in Mathews v. Eldridge, 424 U.S. 319
(1975). Because the district court had not examined those factors in
the first instance, the panel remanded the case to the district court
for application of the Mathews test in the first instance. App. 117a.
/10/
5. Upon rehearing en banc, the court of appeals reversed by a 7-4
vote on the constitutional issues, without questioning the panel's
statutory analysis. Judge Schroeder wrote for six members of the
majority.
a. Judge Schroeder first concluded (App. 12a-16a) that "aliens have a
fundamental right to be free from governmental detention unless there is
a determination that such detention furthers a significant governmental
interest"; she explained that this right was "secured by the
Constitution in its enumerated guarantee of habeas corpus." Id. at 16a.
She also concluded that respondents' rights were not diminished by their
minor status (id. at 16a-19a).
She then turned to the government purposes involved (App. 19a-24a).
In her view, the "case is unprecedented in that it involves post-arrest
detention of persons who have not been convicted of any crime, do not
pose a risk of flight, and who have not been determined to present any
threat of harm to themselves or to the community." Id. at 19a. She
easily rejected INS's proffered concern for the welfare of children
released to unrelated adults. First, she reasoned that, because INS has
no expertise in child welfare, INS's views were "not entitled to any
deference." Id. at 20a. Examining the welfare concern without
deference, she noted INS's reasoning that "since it is unable to do (an
appropriate) evaluation (of proposed custodians) the best interests of
the child must lie in detention rather than in release" to unrelated
adults, but stated without further explanation that "(t)he Constitution
requires the opposite conclusion." Id. at 21a. /11/ Accordingly, she
held that "INS may not determine that detention serves the best
interests of (respondents) in the absence of affirmative evidence that
release would place the particular child in danger of some harm." Ibid.
/12/
Finally, Judge Schroeder considered the procedural due process claim.
App. 24a-25a. She declined to determine whether the claim should be
resolved under Mathews v. Eldridge, supra, or Gerstein v. Pugh, 420 U.S.
103 (1976), explaining that the substantive decision discussed above --
which "requires that the decision to detain be made only in conjunction
with a neutral and detached determination of necessity," App. 24a --
required affirmance of the procedural requirements imposed by the
district court under either standard. She stated that the existing
procedures for a hearing before an immigration judge (see 8 C.F.R.
242.2(d)) were adequate except that (i) a hearing must be held
automatically, without regard to a child's request; and (ii) the
hearing must include an inquiry into whether any available unrelated
adult seeking custody would represent a danger to the child. App. 25a.
/13/
b. Chief Judge Wallace dissented, joined by Judges Wiggins, Brunetti,
and Leavy, criticizing the en banc majority for reasons similar to the
analysis set forth in his panel opinion. App. 52a-69a.
It is estimated that there are millions of illegal aliens in the
United States, and thousands of them are unaccompanied minors. The
Attorney General has exercised powers delegated by Congress to establish
rules governing the custody and release of these children. Those rules
reflect the judgment of the Attorney General that the interests of the
United States and the alien children are better served by placing
unaccompanied minors in the care of specialized child-care facilities
designed to meet their special needs, than by releasing them to
unrelated adults who are unwilling or unfit to obtain legal guardianship
status under state family-law procedures. The Court of Appeals for the
Ninth Circuit simply disagreed. It believed that a different policy was
appropriate: INS instead should relinquish custody of an unaccompanied
minor to any unrelated adult that requests the release of the child
absent "affirmative evidence" that the child would be harmed while in
that adult's custody. App. 21a.
The court concluded that the Constitution permitted the substitution
of its view for that adopted by the agency, because the policy judgment
of the Attorney General was not "entitled to any deference." App. 20a.
Yet this Court has emphatically established that "the responsibility for
regulating the relationship between the United States and our alien
visitors has been committed to the political branches of the Federal
Government." Mathews v. Diaz, 426 U.S. 67, 81 (1976). The lower court's
judgment that the Constitution forbids the regulation of that
relationship at issue in this case warrants review by this Court. The
decision below is based on a standard of judicial scrutiny that squarely
conflicts with the principles of constitutional interpretation
established by this Court, and it invalidates a program of substantial
importance to the proper administration of the immigration laws.
1. The lower court's outcome rested on a faulty premise -- that the
policy judgment reflected in the INS regulation was not "entitled to any
deference." App. 20a. This remarkable premise is in sharp conflict with
this Court's decisions establishing the standard of judicial review
applicable to constitutional challenges to federal policies governing
aliens. In Fiallo v. Bell, 430 U.S. 787 (1977), this Court rejected an
equal protection challenge to family unification policies established
under the Immigration and Nationality Act, because "special judicial
deference to congressional policy choices in the immigration context" is
required. Id. at 793 (emphasis added).
It is clear that this "special" deference applies not only to
Congress's choices, but to the Executive's exercise of delegated power
under the immigration laws as well. As this Court explained in
Kleindeinst v. Mandel, 408 U.S. 753 (1972), when the Executive exercises
its delegated power over aliens "on the basis of a facially legitimate
and bona fide reason, the courts will neither look behind the exercise
of that discretion, nor test it by balancing its justification" against
the constitutionally protected interests of those adversely affected.
Id. at 770 (discussing a First Amendment claim); see also Mathews v.
Diaz, 426 U.S. at 83 (rejecting constitutional challenge to immigration
policy regulating benefits available to resident aliens because case
presented "nothing more than a claim that it would have been more
reasonable for Congress to select somewhat different requirements" to
achieve its goals).
Yet the lower court's decision in this case involves precisely the
type of judicial second-guessing this Court has prohibited. The court
did not question the legitimacy of the stated reasons for the policy --
furthering the welfare of the alien children until INS locates a related
adult or concludes the deportation proceedings -- but found that there
were better means available to advance that goal. See App. 21a ("We
therefore hold that the INS may not determine that detention serves the
best interests of (respondents) in the absence of affirmative evidence
that release would place the particular child in danger of some harm.").
The court attempted to justify this marked departure from the governing
standard of review by dismissing INS as having no special expertise in
the area of child welfare. But in Fiallo, another case challenging
family unification policies, this Court held that the "scope of judicial
review" in the immigration area is not a "function of the nature of the
policy choice at issue." 430 U.S. at 796. So too here. What is more,
the terms and conditions of custody or release of aliens pending
deportation proceedings fall squarely within the agency's statutory
"responsibility for regulating the relationship" between the United
States and "our alien visitors." Mathews v. Diaz, 426 U.S. at 81; 8
U.S.C. 1252(a)(1).
The Ninth Circuit's reliance on Hampton v. Mow Sun Wong, 426 U.S. 88,
114-115 (1976), is misplaced. In Hampton, this Court declined to afford
deference to a Civil Service Commission claim that a regulation adopting
a rule excluding aliens from any federal employment represented a
permissible exercise of immigration policy. The Court reached this
result because it was not clear that the Civil Service Commission -- an
agency responsible for federal employment issues -- had adopted the rule
in furtherance of any federal immigration responsibilities or policies.
This Court indicated, however, that it would presume that a regulation
was intended to further immigration policies if the "agency which
promulgates the rule has direct responsibility for fostering or
protecting that interest." 426 U.S. at 103. Obviously, INS is precisely
such an agency; indeed, it is the only federal agency with any
responsibility for caring for these children. /14/
2. The constitutional analysis adopted by the court of appeals /15/
is so ambitious that it cannot even be reconciled with this Court's
decisions rejecting challenges to laws establishing pretrial detention
for citizens charged with criminal offenses. Schall v. Martin, 467 U.S.
253 (1984), and United States v. Salerno, 481 U.S. 729 (1987), establish
a two-part inquiry for determining whether there is any infringement of
a citizen's rights to substantive due process: (1) whether the
detention serves legitimate regulatory purposes compatible with
fundamental fairness; and (2) if so, whether the terms and conditions
of confinement are compatible with those purposes, or whether they
instead suggest that the detention is in fact based on punitive motives.
Schall, 467 U.S. at 269-270; see Salerno, 481 U.S. at 747. If that
inquiry is satisfied, then the court proceeds to consider whether the
procedures provided to determine whether detention is appropriate
satisfy procedural due process. See Schall, 467 U.S. at 274; Salerno,
481 U.S. at 746.
a. The custody here unquestionably serves legitimate regulatory
purposes: fostering the welfare and safety of unaccompanied minors and
the administrative interests of INS until INS can locate a related adult
or conclude the deportation proceedings. /16/ As the Court explained in
Schall, the child's interest in freedom from restraint
must be qualified by the recognition that juveniles, unlike
adults, are always in some form of custody. Children, by
definition, are not assumed to have the capacity to take care of
themselves. They are assumed to be subject to the control of
their parents, and if parental control falters, the State must
play its part as parens patriae. In this respect, the juvenile's
liberty interest may, in appropriate circumstances, be
subordinated to the State's parens patriae interest in preserving
and promoting the welfare of the child.
467 U.S. at 265 (citations and internal quotation marks omitted); see
Santosky v. Kramer, 455 U.S. 745, 766-767 (1982) (discussing the State's
parens patriae interest in child welfare).
In Schall, this Court concluded that the Due Process Clause permitted
detention of children designed to further two interests: protection of
society from crime, and protection of the child from the consequences of
his inability to care for himself. A different conclusion is entirely
unwarranted in this case, which squarely implicates the second of these
two interests. The Schall Court plainly accepted the legitimacy of the
governmental interest in retaining custody of children to care for them
when parental control falters. See Schall, 467 U.S. at 265-266. In our
view, this Court's analysis in that case, together with this country's
longstanding tradition of governmental involvement in child welfare
issues, compels the conclusion that detention to serve this interest is
not a practice that "offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental."
Id. at 268 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
The en banc majority's cursory dismissal of this interest (App.
20a-21a) conflicts with this Court's teaching, even outside the
immigration context, that "federal judges -- who have no constituency --
have a duty to respect legitimate policy choices made by those who do,"
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 866 (1984). At bottom, the court of appeals' decision rests on its
belief that the children detained by INS generally would be better off
if released to unrelated adults than if they were cared for in special
child-care facilities until a relative or legal guardian can be located.
But this conclusion makes sense only if one accepts the unstated
premise that the Constitution forbids the government from making the
substantive choice that it is generally inappropriate to release
children to unrelated adults. /17/ The strong tradition of government
interest in chld welfare, discussed in detail in Schall and Santosky,
forecloses a determination that the Constitution bars such a choice,
especially in a situation that involves unaccompanied alien children who
in some cases may have endured significant trauma in the recent past,
see note 9, supra. /18/
b. In Schall and Salerno, this Court proceeded to consider whether
the conditions of custody were sufficiently compatible with the
articulated purposes of custody to justify the conclusion that the
government's decision to retain custody actually rested on that purpose,
rather than an unstated desire to inflict punishment before conviction.
Schall, 467 U.S. at 269-274; Salerno, 481 U.S. at 747-748. The system
established in this case clearly passes this inquiry. As discussed
above, see pp. 6-8, supra, the Community Relations Service has
implemented a detailed program designed to further every significant
aspect of the child's welfare. The program compares favorably with the
program outlined in Schall, 467 U.S. at 270-271. There is little doubt
that INS has developed this program to implement the articulated concern
for the safety and welfare of detained children (see note 16, supra),
and the court of appeals agreed that the INS's policy is not intended to
punish them. App. 19a.
c. Finally, the available procedures would provide the requisite
process under the Fifth Amendment even if respondents were citizens.
/19/ 8 C.F.R. 287.3 requires an examination within 24 hours after arrest
at which the government must establish a prima facie case of
deportability, thus meeting a standard even higher than the probable
cause standard required to justify detention of pretrial detainees in
criminal proceedings. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975).
Moreover, before the child makes any choices about his custody, he "must
in fact communicate with either a parent, adult relative, friend," or
with a legal aid organization. 8 C.F.R. 242.24(g). /20/ The child is
then specifically advised in a language he understands (see 8 C.F.R.
242.24(h)) of the right to seek a hearing before an immigration judge
under 8 C.F.R. 242.2(d), at which the child may seek "release from
custody or * * * amelioration of the conditions under which he or she
may be released." The immigration judge's decision, in turn, is subject
to administrative review by the Board of Immigration Appeals, ibid.; 8
C.F.R. 3.1(b)(7), and then by the federal courts. See 8 U.S.C.
1252(a)(1).
These procedures put the child in contact with a responsible adult
not affiliated with our government and entitle the child to a full
administrative hearing before an immigration judge at any time he wishes
to challenge the government's decision to retain custody; accordingly,
they satisfy the Constitution. First, the conclusion of the court of
appeals -- that the government should hold a hearing to establish
affirmative evidence of anticipated harm to the child in each case where
an unrelated adult seeks custody -- necessarily rests on the unstated
premise that the Constitution bars the government's substantive
conclusion that release to an unrelated adult should be disfavored and
that home visits, not hearings before immigration judges, are needed to
assess accurately whether an unrelated adult is fit to assume custody of
a child. /21/ If the Constitution permits the conclusion adopted by the
agency, as we have demonstrated above, the child is adequately protected
by his right to seek a hearing before the immigration judge. /22/
Second, it is difficult to understand the basis for the court of
appeals' conclusion that the Constitution requires a second
probable-cause determination even in the absence of a request. As
discussed above, the regulations put the child in contact with a
responsible adult and require that the child specifically be advised of
his right to a hearing in a language he understands. 8 C.F.R. 242.2(g);
242.24(g) and (h). In light of the civil nature of deportation, see
INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984), /23/ and the previous
determination of the examining officer on which the detention rests, we
believe that the Constitution clearly permits a waiver of this hearing.
Compare Fare v. Michael C., 442 U.S. 707, 726-727 (1979) (holding that a
child may waive Miranda rights).
3. The importance of the issues presented by this case justifies
plenary review by this Court. The court of appeals has forbidden
enforcement of INS policies governing unaccompanied minors on
constitutional grounds. To state the obvious, Congress and the Attorney
General accordingly are powerless to correct the Ninth Circuit's error.
In the absence of this Court's review, the United States will be
compelled to release children into the custody of unrelated adults,
notwithstanding the obvious risks such a course poses to the children's
safety and welfare.
Although the district court's order directly affects only the Western
Region of INS (California, Hawaii, and Arizona), it imposes a
considerable administrative burden. INS advises us that, during the
22-month period during which it complied with the district court's order
pending appeal, approximately 1700 hearings (almost three a day) were
held for children detained pending deportation. Nor has the problem of
deportable children diminished in the interim; in 1991, INS detained
7225 alien children in the Western Region alone. Indefinite compliance
with the order would require a serious diversion of resources from INS's
responsibilities to administer and enforce the immigration laws.
Finally, it would serve no purpose for this Court to defer review
until other circuits have had an opportunity to consider the
constitutionality of the regulation at issue. The Ninth Circuit --
which by itself covers a substantial portion of the operations of the
Service -- already has considered the issue en banc. In addition, the
opposing modes of analysis have been fully developed in seven separate
opinions, spanning 144 pages of the appendix, authored by the thirteen
judges who have now considered the issues presented. We accordingly
believe the issue is ripe for review by the Court at this time.
At the heart of the court of appeals' decision is the unstated
premise that the Constitution prohibits the federal government from
making the substantive determination that, until the INS finds a related
adult or guardian, or completes their deportation proceedings,
unaccompanied alien children are better off if they remain in child-care
centers monitored by the government than if they are turned over to
unrelated adults. In light of the strong tradition in this country
permitting governments to intervene to protect children whenever
"parental control falters," Schall, 467 U.S. at 265, and to entrust the
formulation of policies governing aliens to the "political branches of
the Federal Government," Mathews v. Diaz, 426 U.S. at 81, this
far-reaching conclusion is manifestly incorrect.
The petition for a writ of certiorari should be granted.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
STUART M. GERSON
Assistant Attorney General
MAUREEN E. MAHONEY
Deputy Solicitor General
RONALD J. MANN
Assistant to the Solicitor General
GROVER JOSEPH REES, III
General Counsel Immigration and Naturalization Service
DECEMBER 1991
/1/ An earlier version of the opinion of the panel of the court of
appeals was reported at 913 F.2d 1315, but was superseded by the opinion
reported at 934 F.2d 991.
/2/ Title 8 also establishes procedures for arrests pursuant to
warrants, but such warrants can be issued only if INS can establish
probable cause to believe the alien is deportable, and only if INS
already has instituted deportation proceedings before an immigration
judge, as set forth in 8 C.F.R. 242.1(a), 242.2(c).
/3/ The statute provides:
(A)ny such alien taken into custody may, in the discretion of the
Attorney General and pending such final determination of
deportability, (A) be continued in custody; or (B) be released
under bond in the amount of not less than $500 with security
approved by the Attorney General, containing such conditions as
the Attorney General may prescribe; or (C) be released on
conditional parole.
/4/ See 8 C.F.R. 287.3 (stating that "further action (after the
examining officer determines there is a prima facie case of
deportability) shall be taken as provided in part 242 of this chapter").
/5/ In 1990, INS took custody of 8542 children pending hearings on
their deportability. Although INS did not then maintain nationwide
records regarding the number of those children who were not accompanied
by related adults, records from the Southern Region (principally South
Texas) show that 73% of the 1317 children detained there in 1990 were
unaccompanied. The University of Houston has conducted a statistical
study of the 1259 children (accompanied and unaccompanied) detained in
1989 in South Texas. See N. Rodriguez & X. Urrutia-Rojas, Undocumented
and Unaccompanied: A Mental-Health Study of Unaccompanied, Immigrant
Children from Central America (1990) (hereinafter Undocumented Children
Study) (a copy has been lodged with the Court and furnished to
respondents). Of these children, about 35% were from El Salvador, 18%
from Guatemala, 17% from Honduras, and 30% from Nicaragua. See id.
table 2. The children's ages were as follows: 37% were 17 years old;
32% were 16 years old, 17% were 15 years old, and only 14% were 14 or
younger. See id. table 3.
/6/ Until suitable placement is found, the juvenile "may be
temporarily held * * * in any INS detention facility having separate
accommodations for juveniles," 8 C.F.R. 242.24(d), where the juvenile
will be housed apart from unrelated adults, unless the juvenile is in
the care of a related female adult.
/7/ It is important to realize that, for the great majority of the
children, the total time period in INS-supervised custody is quite
short. For example, of the 199 children released from INS custody in
November 1991, 82% (164) had been in INS custody for less than 30 days.
/8/ Although the decree by its terms governs only the Western Region,
INS practices throughout the country generally follow the terms of the
decree.
/9/ In light of the tumultuous conditions in the countries from which
these children come, and the frequently traumatic circumstances of their
travel to this country, one researcher has concluded that "at least 50%
of the children" have "clinically significant levels" of Post-Traumatic
Stress Disorder. See Undocumented Children Study, supra note 5, at
58-59. If the study's conclusions are accurate, it is particularly
important that the program provide comprehensive and professional care.
/10/ Judge Fletcher did not question Chief Judge Wallace's statutory
analysis, but dissented (App. 118a-144a) on the constitutional issues,
for reasons substantially similar to the reasons set forth in Judge
Schroeder's opinion for the en banc majority, discussed below.
/11/ She also rejected INS's concern about potential liability for
improperly releasing children, explaining that the Court held in
DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189
(1989), that a government agency would not be liable under 42 U.S.C.
1983 for harm to a child caused by a private citizen. App. 22a-23a.
/12/ The seventh member of the en banc majority, Judge Rymer,
concurred in part and dissented in part. App. 41a-52a. Declining to
address the substantive constitutional arguments, she would have
affirmed portions of the district court's judgment on procedural due
process grounds based on her view that the Due Process Clause requires a
prompt hearing before a neutral officer. She did not adopt the
majority's substantive holding that INS must make an affirmative showing
of likelihood of harm to the child, but instead held simply that INS
should conduct a hearing to determine whether release was appropriate
under the "unusual and compelling circumstances" standard identified in
the existing regulation, 8 C.F.R. 242.24(b)(4).
/13/ Judge Tang concurred (App. 26a-37a), generally arguing that the
majority's decision could be supported not only by the Habeas Corpus
Clause, but also by the substantive component of the Due Process Clause,
and that application of Mathews v. Eldridge would require a hearing
before an immigration judge. Judge Norris also concurred (App.
37a-41a), generally arguing that INS's policy clearly fails to provide
due process.
/14/ The decision in Hampton is also inapposite because it concerns
procedural due process, not substantive due process. It is one thing to
say, as this Court did in Hampton, that courts need not defer to an
agency's resolution of policy choices beyond its competence, for
purposes of telling whether the policy has been appropriately
promulgated and enacted; it is an entirely different thing to say, as
the court of appeals has said here, that courts need not defer to the
Executive Branch's policy choices in the course of determining whether
the Constitution permits the choice to be made at all. In effect, the
court of appeals has relied on a decision that invalidated a policy
choice because it was made by the wrong agency to justify a decision
holding that the Constitution flatly forbids a policy choice.
/15/ Although the opinion of the court of appeals on its face appears
to grant relief under the Habeas Corpus Clause, Art. I, Section 9, Cl.
2, see App. 16a, respondents' arguments throughout this litigation have
been couched in terms of substantive due process, which we believe is a
more appropriate rubric under this Court's precedents. In any event,
the Habeas Corpus Clause is not an independent fount of substantive
constitutional rights; on its face, the Clause merely requires a
procedure to test whether government detentions violate other provisions
of the Constitution. Because INS has done nothing that can be construed
to suspend the privilege of the writ of habeas corpus, respondents have
no claim under that Clause.
/16/ As the CRS Standards published in the Federal Register make
clear, concern for the welfare of minors (including family
reunification) was the primary purpose for implementing this program.
See App. 156a-157a ("Purpose and Scope" section), 159a, 185a-186a. As
noted by Chief Judge Wallace, the program also furthers the legitimate
ends of ensuring appearance at future deportation proceedings,
insulating the INS from liability for harm to the minors, and
administrative economy. See App. 108a.
/17/ The decision of the court of appeals would place INS in a
particularly difficult situation in cases where a related adult appeared
to take custody of the child after the INS had released the child to an
unrelated adult not under its supervision.
/18/ The court of appeals' decision intrudes significantly on the
important role of the States in making determinations regarding child
custody. The States, of course, have carefully developed procedures for
determining the qualifications of unrelated adults to care for children.
See, e.g., Ariz. Rev. Stat. Ann. Sections 14:5201-14:5212,
14:5401-14:5432 (1975 & Supp. 1991); Cal. Prob. Code Sections 1510-1517
(West 1991). By preferring release to parents and guardians, the INS
policy defers substantially to state-law determinations of guardianship.
Although the Constitution would permit the federal government to make
the policy choice to supplant state-court determinations on these issues
by releasing children to the care of unrelated adults who have not taken
the trouble to go through the appropriate state-court procedures for
becoming a guardian or conservator of the child, it cannot possibly
require that choice. Cf. Gregory v. Ashcroft, 111 S.Ct. 2395, 2399-2403
(1991) (discussing the important role the States play in our federal
system).
/19/ This Court held in Mathews v. Diaz, supra, that the process due
aliens under the Fifth Amendment is not coextensive with that due
citizens. 426 U.S. at 78. The process afforded by INS accordingly
could be adequate even if the Fifth Amendment might require greater
procedural protections for citizens.
/20/ Juveniles from Mexico and Canada are given the option to contact
an adult by phone, but by treaty communication with consular authorities
is required without regard to the juvenile's wishes. See 8 C.F.R.
242.2(g), 242.24(g).
/21/ If the government is entitled, as a general matter, to enact a
rule of law forbidding release to unrelated adults except in unusual and
exceptional circumstances, there would be no reason for a hearing to
determine whether the government could prove the anticipated harm in
each case, because the existence of particularized harm would be
irrelevant to the determination. See Michael H. v. Gerald D., 491 U.S.
110, 126 (1989) (plurality opinion of Scalia, J.) ("It is no conceivable
denial of constitutional right for a State to decline to declare facts
unless some legal consequence hinges upon the requested declaration."),
id. at 132-133 (Stevens, J., concuring) (agreeing with this
proposition).
/22/ We believe that the court of appeals erred in relying heavily on
Schall v. Martin, supra, for the proposition that an individualized
hearing is required in each case. Detention in Schall was justified
only in the cases in which the juvenile was reasonably likely to commit
crimes that would harm others or the child. A process implementing that
justification would detain only those children reasonably likely to
commit crimes; it is entirely appropriate to require individualized
hearings before detaining a child based on the inherently predictive and
stigmatic determination that the child would commit crimes if released.
By contrast, detention is justified here by the absence of related
adults to whom the child may be released. There is no reason to believe
that full-blown individualized hearings are necessary for INS to
determine accurately whether there are in fact related adults seeking
custody of the child. Moreover, the child can seek a hearing under 8
C.F.R. 242.2(d) at any time if he believes INS has erred in making that
determination.
/23/ See Gerstein, 420 U.S. at 125 n.27 (suggesting that its holding
would not apply in civil cases because it was limited to the "wholly
different context of the criminal justice system").
JAMES AND NANCY L. KARR, PETITIONERS V. COMMISSIONER OF INTERNAL
REVENUE
No. 91-745
In The Supreme Court Of The United States
October Term, 1991
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
The opinion of the court of appeals (Pet. App. A1-A38) is reported at
924 F.2d 1018. The opinion of the Tax Court (Pet. App. B1-B116) is
reported under the caption Smith v. Commissioner at 91 T.C. 733.
The judgment of the court of appeals (Pet. App. E) was entered on
February 27, 1991. The petition for rehearing was denied by the court
of appeals on May 7, 1991 (Pet. App. D). Justice Kennedy extended the
time for filing a petition for writ of certiorari to and including
October 2, 1991. The petition for writ of certiorari was filed on
October 2, 1991. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
Whether the activities of the limited partnership in which petitioner
had invested were primarily motivated by tax benefits and lacked
economic substance.
1. On their income tax returns for 1981 and 1982, petitioners claimed
a distributive share of partnership losses of Peat Oil and Gas
Associates, Ltd. (POGA) attributable to efforts to develop a process for
producing alternative fuel known as the Koppelman Process. POGA and
another limited partnership called Syn-Fuel Associates (SFA) were formed
as part of a network of interrelated parties, allegedly to exploit
Koppelman Process technology and to acquire and develop oil and gas
interests. The offering memoranda reflect that each investor purchasing
a partnership unit for a $37,500 cash investment would be able to deduct
$150,376 in tax losses over four years. To be eligible to purchase
units in the partnership, prospective investors were required to fill
out an Offeree Suitability Questionnaire representing that they had a
net worth of at least $250,000 (exclusive of home, furnishings and
automobiles) and were subject to federal income tax in the highest
brackets. The offering memoranda warned that financial success for the
partnerships was highly unlikely due to the commercially unproven nature
of the technology, the lack of experience of the principals, conflicts
of interest on the part of many of the principals, the large obligations
incurred by the partnerships without arm's length negotiations, and the
inadequate capitalization of the partnerships. Pet. App. A4-A7.
As part of its activities in connection with the Koppelman Process,
POGA agreed to pay a license fee to Sci-Teck Licensing Corporation
(Sci-Teck) and a fee to Fuel-Teck Research and Development (FTRD). The
fees to Sci-Teck and FTRD (both of which were part of the network of
interrelated entities) were based on the number of partnership units
sold (211.25 as of 1981) and included cash and partnership promissory
notes due between 2006 and 2009. /1/ On its income tax return for 1981,
POGA deducted $4,288,375 as a license fee to be paid to Sci-Teck and
$4,288,375 as a research and development fee to be paid to FTRD. These
amounts represented the cash payments and, to a larger degree, the face
amount of the notes that were not due until 2006 or beyond. On its 1982
income tax return, POGA deducted $5,830,500 as a license fee to be paid
to Sci-Teck and $1,964,625 as a research and development fee to be paid
to FTRD, and also deducted $505,897 as interest expense. Pet. App.
A8-A11.
Petitioner James Karr became a limited partner of POGA in December
1981. The participation agreement called for payment of $80,750 over a
26-year period, as embodied in full recourse promissory notes. On their
joint income tax returns for 1981 and 1982, petitioners deducted $20,191
and $19,953, respectively, as their distributive share of partnership
losses. The Commissioner disallowed these deductions, asserting, inter
alia, that POGA had not entered into its activities for a profit. The
Commissioner determined deficiencies in petitioners' income tax of
$8,907 for 1981 and of $7,972 for 1982. Petitioners sought
redetermination of their liabilities in the Tax Court. Pet. App.
A10-A12.
2. Following a week-long trial, the Tax Court determined that tax
motivations shaped the formation of these partnership transactions and
concluded that the partnership activities with respect to the Koppelman
Process /2/ lacked economic substance apart from the anticipated tax
benefits. The Tax Court found that the substance of the transactions
was that POGA provided cash to finance the promoters' activities for
their various projects and, in return, POGA's limited partners were to
receive tax benefits in the form of deductible losses. The Tax Court
determined that such activities were not within the scope of Section 174
of the Internal Revenue Code, which permits a current deduction for
research and development expenditures. /3/ The Tax Court also sustained
additions to tax under Section 6661(a) of the Code for substantial
understatement of income tax for the 1982 tax year, and the imposition
of additional interest under Section 6621(c) on substantial
underpayments attributable to tax-motivated transactions for both 1981
and 1982. Pet. App. A13-A15, B82-B83, B90-B91, B103-B116.
3. The court of appeals affirmed. The court held that "the record
contains substantial evidence from which one may conclude that POGA's
Koppelman Process activity lacked economic substance and had no business
purpose other than the creation of tax benefits" (Pet. App. A24). As a
consequence, the expenses arising from those sham transactions are not
deductible (id. at A30). The court of appeals also upheld the Tax
Court's finding that POGA's obligation to pay interest on promissory
notes to Sci-Teck and FTRD was too contingent to meet the standards for
accruing an interest deduction since the interest was payable only out
of POGA's anticipated revenues and no payment was due for 25 years (id.
at A31-A33). Finally, the court of appeals rejected petitioners'
argument that the Commissioner had abused his discretion by imposing an
additional interest charge under Section 6621 and a substantial
understatement penalty under Section 6661 (id. at A37-A38).
The court of appeals correctly held that petitioners are not entitled
to deduct their distributive share of the limited partnership's losses
claimed in connection with the Koppelman Process because those
activities lack economic substance. This decision does not conflict
with any decision of this Court. The conflict of result between the
decision in this case and the Sixth Circuit's reversal of the same Tax
Court decision in Smith v. Commissioner, 937 F.2d 1089 (1991), is based
solely on different factual conclusions drawn by the two courts and does
not raise a legal issue warranting further review.
This Court has long held that transactions that lack economic
substance will not be recognized for tax purposes. Gregory v.
Helvering, 293 U.S. 465, 469 (1935). When a transaction represents
"nothing more than a contrivance" in a scheme of tax avoidance, it will
not be given effect. Ibid. The court of appeals correctly followed
this principle in affirming the Tax Court decision that denied
deductions for activities whose purpose and effect were tax avoidance.
In urging this Court to grant certiorari, petitioners contend (Pet.
13-14) that the court of appeals should have reviewed de novo the Tax
Court's determination that the partnership's Koppelman Process
activities constituted a sham for tax purposes. /4/ Although there is
some variation among the courts concerning whether the determination
that a transaction is a sham involves a question of fact or a conclusion
of law, /5/ there is no disagreement that the underlying factual
findings upon which the characterization rests are subject to review
only for clear error. Whether the ultimate label applied to POGA's
activities was properly viewed by the court of appeals as a question of
fact (with the legal standards applied by the Tax Court subject to
plenary review) (see Pet. App. A19), or should have been viewed as a
question of law (with the facts found by the Tax Court accepted unless
clearly erroneous), see, e.g., James v. Commissioner, 899 F.2d 905 (10th
Cir. 1990), is largely a question of semantics. In either event, the
characterization of those activities turns on the factual determination
of whether the partnership had a profit motive and whether its
activities had economic substance beyond the creation of tax benefits.
Petitioners acknowledge that in Smith v. Commissioner, 937 F.2d 1089
(1991), the Sixth Circuit applied "the same standard in determining
whether the transaction had economic substance" (Pet. 15) that the
Eleventh Circuit applied in the present case. In Smith v. Commissioner,
a divided panel of the Sixth Circuit reversed as clearly erroneous the
same Tax Court decision at issue here. While not addressing the factual
analysis made by the Eleventh Circuit in its earlier published opinion
in this case, the Sixth Circuit determined that the partnership
arrangements were not devoid of any business rationale or economic
reality and that the Tax Court's findings to the contrary were clearly
erroneous. /6/ Both the Sixth and Eleventh Circuits purported to apply
the same standard of review to the Tax Court's determination. The
courts differed only in their application of that standard to the
particular facts in these cases. No significant legal issue is
presented by this purely factual conflict. Further review is therefore
not warranted. /7/
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
SHIRLEY D. PETERSON
Assistant Attorney General
DAVID I. PINCUS
MARY FRANCES CLARK
Attorneys
DECEMBER 1991
/1/ The partnerships' oil and gas investments were to subsidize the
efforts to develop the Koppelman Process. Fuel-Teck Oil and Gas, Inc.
(FTOG) (another network entity) was to be responsible for those oil and
gas activities. The revenue derived from oil and gas projects would be
used to pay off POGA's notes to Sci-Teck and FTRD (Pet. App. A9-A10).
/2/ POGA had also claimed losses from oil and gas investments, the
deductibility of which was conceded by the Commissioner following trial
(Pet. App. A13).
/3/ Section 174 authorizes a taxpayer to deduct currently, rather
than treat as capital expenditures, "research or experimental
expenditures which are paid or incurred by him during the taxable year
in connection with his trade or business." 26 U.S.C. 174.
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statutory provision involved
Statement
Reasons for granting the petition
Conclusion
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Constitutional provision involved
Statement
Reasons for granting the petition
Conclusion
TABLE OF CONTENTS
Questions Presented
Parties to the Proceedings
Opinions below
Jurisdiction
Constitutional, statutory, and regulatory provisions
involved
Statement
Reasons for granting the petition
Conclusion
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion