FRANKLIN LEON BLIGE, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6189
In The Supreme Court Of The United States
October Term, 1989
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. 1a-4a) is reported at
888 F.2d 76.
The judgment of the court of appeals was entered on September 29,
1989. The petition for a writ of certiorari was filed on November 28,
1989. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
Whether the district court's decision to sentence petitioner above
the Sentencing Guidelines range violated due process.
Following a plea of guilty in the United States District Court for
the Southern District of Georgia, petitioner was convicted on one count
of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to
12 years' imprisonment, three years' supervised release, and fined
$5000. Pet. App. 6a-11a. The court of appeals affirmed. Pet. App.
1a-4a.
1. The evidence introduced at the plea and sentencing hearings showed
that in December 1987, petitioner and co-defendant William Campbell
robbed the Citizens and Southern National Bank in Augusta, Georgia.
They entered the bank, vaulted the counter brandishing plastic
revolvers, and looted teller stations. Petitioner and Campbell then
left the bank, shed some of their outer clothing, and separated. Pet.
App. 2a, 28a.
Minutes after the robbery, Campbell was apprehended by law
enforcement officers in a wooded area near the bank. Campbell
cooperated immediately. He admitted his involvement in the robbery and
provided details of the crime, including a diagram charting his and
petitioner's flight from the bank into the wooded area where he was
apprehended. Campbell also told the officers where they could find his
plastic gun and clothing. Pet. App. 2a, 28a-29a.
Petitioner's apprehension was more difficult. He was chased about
two blocks through a residential area, where he was surrounded and
ultimately apprehended by pursuing law enforcement officers. Petitioner
denied any involvement in the crime. He said that he had just arrived
in town to visit a friend at a local boys club. He said that he ran
from the police because of his past criminal record. Petitioner denied
ever seeing Campbell before his arrest. Pet. App. 2a, 29a.
2. a. Petitioner's offense occurred after November 1, 1987, and he
was sentenced under the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et
seq. and 28 U.S.C. 991-998 (Supp. IV 1986), and the Sentencing
Guidelines adopted by the United States Sentencing Commission. Under 18
U.S.C. 3553(b), a district court must impose sentence in accordance with
the Sentencing Guidelines unless the court finds an aggravating or
mitigating circumstance of a kind or to a degree not adequately
considered by the Commission in formulating the guidelines that should
result in a sentence different from the one set by the Guidelines.
Sentencing under the Guidelines proceeds in several steps. The first
step is to identify the relevant guideline for the offense of
conviction. The district court then calculates the offense level for
that offense under Chapter 2 of the Guidelines. The court next makes
appropriate adjustments under Chapter 3 based on factors such as injury
caused to the victims of the crime and the defendant's role in the
offense. The court then determines the relevant criminal history
category under Chapter 4. Finally, the court determines the sentencing
range from the Table in Chapter 5, by finding on the grid the point at
which the adjusted offense level intersects with the criminal history
category.
b. The base offense level for bank robbery at the time of
petitioner's offense was 18. United States Sentencing Comm'n,
Guidelines Manual Section 2B3.1(a) (Oct. 1987) (Guidelines). /1/ The
district court increased the base offense level by two to 20 in this
case because the value of the property stolen was between $10,001 and
$50,000. Guidelines Section 2B3.1(B). Petitioner had a long history of
criminal activity. His presentence report revealed that petitioner had
eight prior convictions. Pet. App. 4a, 12-15a. Among petitioner's
prior convictions was a felony conviction for simple robbery, /2/ three
felony convictions for burglary, /3/ one felony conviction for receiving
stolen property, and one felony conviction for credit card fraud.
Petitioner also had two misdemeanor convictions for the possession of
narcotics, both of which had initially been charged as felonies. Ibid.
That lengthy criminal history put petitioner in criminal history
category VI. Guidelines Sections 4A1.1, 4A1.2. The combination of
petitioner's adjusted offense level and criminal history category
resulted in a sentencing range of 70-87 months.
The probation officer, however, recommended to the district court
that an upward departure might be warranted on the ground that
petitioner's criminal history category did not adequately reflect the
seriousness of petitioner's past criminal conduct or the likelihood that
he would commit other crimes. Presentence Report 9. The probation
officer noted that if either of petitioner's two narcotics condictions
had been felonies (as they were originally charged), petitioner would
have been categorized as a career offender under Guidelines Section
4B1.1, which would have resulted in an offense level of 34, not 20.
That offense level, in turn, would have yielded a sentencing range of
262-327 months, not 70-87 months. /4/ Presentence Report 9.
Petitioner's co-defendant, Campbell, who also had a long criminal
history, was sentenced as a career offender, but he received a downward
departure because he cooperated with the authorities and accepted
responsibility for his crime.
The district court agreed that an upward departure was appropriate in
petitioner's case. The court found that petitioner was "very much a
professional criminal," whose "criminal category does not adequately
reflect the likelihood of his recidivism." Pet. App. 47a. "I think it
is obvious from his record," the court continued, "that the likelihood
of his recidivism is very high," and that, particularly with reference
to petitioner's drug offenses, "the criminal history category
significantly under represents (petitioner's) criminal history." Id. at
48a. The court accordingly determined that an upward departure from the
Guideline range was warranted based on Guidelines Section 4A1.3 Policy
Statement, which authorizes an upward departure where "the (defendant's)
criminal history category does not adequately reflect the seriousness of
the defendant's past criminal conduct or the likelihood that the
defendant will commit other crimes * * * ." The court sentenced
petitioner to 144 months' imprisonment. Although petitioner's
co-defendant Campbell received the identical sentence, the district
court denied that its intent was just to equalize the co-defendant's
sentences. Pet. App. 48a.
3. The court of appeals affirmed. Pet. App. 1a-4a. The court
observed that petitioner had prior convictions for eight separate crimes
in just 11 years. The absence of a second qualifying conviction that
would have triggered the career offender provision of Guidelines Section
4B1.1, the court noted, put petitioner 14 offense levels lower than the
level that he would have occupied as a career criminal. As the court
explained, Pet. App. 4a:
Although (petitioner's) prior offenses did not meet the
definitional requirements of Guidelines Section 4B1.1, his crimes
were substantial in number and serious in character. In fact, the
number and nature of his criminal convictions were not
significantly less than the convictions which qualified Campbell
as a career offender.
The court therefore held that the upward departure for petitioner was
warranted and that the amount of the departure was not unreasonable,
given petitioner's "ongoing criminal involvement." Ibid. /5/
1. Petitioner claims that the district court violated due process by
departing upwards from the Guidelines range in order to impose the same
sentence on petitioner that the court imposed on his co-defendant
Campbell. Petitioner maintains that in so doing, the district court did
not consider his case on its own merits, as required by the Guidelines,
and, instead, punished him because of Campbell's criminal record. That
claim lacks merit.
The district court expressly "agree(d) with counsel for (petitioner)
that (petitioner) cannot be sentenced on the basis of Mr. Campbell's
background, nothing could be more obvious (or) more offensive to our
system of jurisprudence. (Petitioner) should be considered on his
background and sentenced on the basis of his acts and omissions." Pet.
App. 48a. Moreover, the record demonstrates that at sentencing the
district court focused on petitioner's conduct, not Campbell's, in
deciding to depart upwards from the Guideline range that applied to
petitioner. Id. at 47a-49a. As the court of appeals found (and
petitioner does not dispute), the district court's decision to depart
was eminently reasonable in light of petitioner's lengthy criminal
record. See 18 U.S.C. 3742(e)(2) (reversal of departure from Guideline
range warranted only if departure is "unreasonable"); see also United
States v. Gayou, No. 89-30096 (9th Cir. Jan. 30, 1990), slip op. 983
(decision to depart from Guideline range is "uniquely within the ken of
the district court"); United States v. Ryan, 866 F.2d 604, 610 (3d Cir.
1989) ("district courts are entitled to exercise a substantial amount of
discretion in determining whether to depart from the guidelines"). In
addition, the district court's concern that petitioner's and Campbell's
sentences not be totally dissimilar, Pet. App. 43a-44a, was consistent
with the congressionally recognized "need to avoid unwarranted sentence
disparities among defendants with similar records who have been found
guilty of similar conduct." 18 U.S.C. 3553(a)(6). As long as a district
court gives individualized consideration to the defendant's own case, as
required by the Guidelines, the court has the authority under Section
3553(a)(6) to consider the sentences imposed on other persons for the
same offense.
2. Petitioner's remaining complaints are entirely factual.
Petitioner disagrees with the district court's belief that he
reluctantly admitted to committing the bank robbery, and argues that
this was not an appropriate basis for an upward departure. Pet. 10. In
fact, the district court did not depart upwards on that ground; the
court cited petitioner's reluctance as a reason for denying him credit
for accepting responsibility for his crime under Guidelines Section
3E1.1. Compare Pet. App. 34a-35a with id. at 48a-49a. Moreover,
contrary to petitioner's assertion, Pet. 10-11, the district court did
not increased petitioner's sentence on the ground that petitioner had
more convictions than Campbell. See id. at 48a-49a. The court merely
recognized the obvious in noting that both Campbell and petitioner were
career felons whose backgrounds, "while different in details, are in a
range of comparable activity * * * ." Id. at 43a; see also id. at 38a.
/6/ The basis for the departure was the district court's belief that
petitioner was "very much a professional criminal," id. at 47A (in the
court's words, "that's his job, that's his business, that's what he has
done and he has dedicated himself to it in a reasonably responsible
fashion," ibid.), who was likely to "commit further and more serious
crimes." Id. at 48.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
ANDREW LEVCHUK
Attorney
FEBRUARY 1990
/1/ Unless otherwise noted, all references in this brief to the
Guidelines are to the October 1987 edition.
/2/ Petitioner's robbery conviction was for a 1975 armed robbery of a
restaurant, from which petitioner obtained $1300.68.
/3/ Petitioner stole two rifles during one of his burglaries.
/4/ The October 1987 version of Guideline Section 4B1.1 (since
amended) is a special provision for offenders with particularly serious
criminal histories. At the time of petitioner's offense, it provided
that:
A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time of the instant offense, (2) the
instant offense is a crime of violence or trafficking in a
controlled substance, and (3) the defendant has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense. If the offense level for a career criminal
from the table below is greater than the offense level otherwise
applicable, the offense level from the table below shall apply. A
career offender's criminal history category in every case shall be
Category VI.
That provision did not apply to petitioner since he had only one prior
felony conviction (for robbery) that satisfied the then-applicable
definition of "crime of violence." Had either of petitioner's two
narcotics convictions not been pled down to misdemeanors, petitioner
would have qualified as a career offender. Were that the case, the
Table in Guidelines Section 4B1.1 would have assigned petitioner an
offense level of 34, because the statutory maximum for a violation of 18
U.S.C. 2113(a) is 20 years' imprivonment. Guidelines Section 4B1.1.
/5/ The court of appeals also rejected petitioner's claim that he was
entitled to credit under Guidelines Section 3E1.1 for accepting
responsibility for his crime. Pet. App. 3a-4a. Petitioner has not
sought review in this Court of that ruling.
/6/ Petitioner alleges, with no citation to the record, that Campbell
had more prior convictions than he. Pet. 10-11. The presentence
reports supported the district court's belief that Campbell had fewer
prior convictions than petitioner. C.A. Record Excerpts Items 3-4.
CARL ERIC OLSEN, PETITIONER V. DRUG ENFORCEMENT ADMINISTRATION
No. 89-6274
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit
Brief For The Respondent In Opposition
The opinion of the court of appeals (Pet. App. 1a-30a) is reported at
878 F.2d 1458. The Final Order of the Drug Enforcement Administration
(DEA) is reprinted at Pet. App. 16a-22a.
The judgment of the court of appeals was entered on June 20, 1989. A
petition for rehearing was denied on September 15, 1989. The petition
for a writ of certiorari was filed on December 13, 1989. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
Whether the Free Exercise Clause, the Establishment Clause, or the
Equal Protection Clause requires the federal government to exempt
petitioner's proposed religious use of marijuana from the Controlled
Substances Act, 21 U.S.C. 801, et seq.
1. The Controlled Substances Act, 21 U.S.C. 801, et seq., makes it
unlawful for any person knowingly or intentionally "to manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance." 21 U.S.C. 841(a)(1).
The Act also makes it unlawful for any person "knowingly or
intentionally to possess a controlled substance," subject only to narrow
limitations. 21 U.S.C. 844. In enacting the Act, Congress determined
that the "possession and improper use of controlled substances have a
substantial and detrimental effect on the health and general welfare of
the American people." 21 U.S.C. 801(2). Both peyote and marijuana are
listed as "Schedule I" controlled substances under the Act. 21 U.S.C.
812(c).
Federal law first prohibited the manufacture or distribution of
peyote in the Drug Abuse Control Act Amendments of 1965, Section 3(a),
Pub. L. No. 89-74, 79 Stat. 227. Shortly after Congress passed the 1965
Amendments, the Food and Drug Administration, which was responsible for
administering the Amendments at that time, issued the following
regulation exempting bona fide religious use of peyote under certain
circumstances:
The listing of peyote in this subparagraph does not appy to the
nondrug use in bona fide religious ceremonies of the Native
American Church; however, persons supplying the product to the
Church are required to register and maintain appropriate records
of receipts and disbursements of the article.
21 C.F.R. 166.3 (1967). Although this exemption, now codified at 21
C.F.R. 1307.31 (1989), mentions only the Native American Church, the
Department of Justice's Office of Legal Counsel has concluded that it
"exempts the religious use of peyote by the (Native American Church) and
by other bona fide peyote-using religions in which the actual use of
peyote is central to established religious beliefs, practices, dogmas,
or rituals." Memorandum Opinion for the Chief Counsel, Drug Enforcement
Administration. Office of Legal Counsel, Department of Justice 403, 409
(December 22, 1981) (Pet. App. 195a, 201a). This conclusion is binding
on the DEA, a Department of Justice component, which has succeeded to
the responsibility for enforcing the Controlled Substances Act. Id. at
408 n.13 (Pet. App. 200a n.13).
2. Petitioner is a member and priest of the Ethiopian Zion Coptic
Church (the Church), which has several thousand members in Jamaica but
which has never had more than 200 members in the United States. Pet.
App. 2a. For purposes of this case, the DEA has stipulated that the
Church is a bona fide religion, and that its sacrament is marijuana.
Pet. App. 19a (DEA Final Order). According to the teachings of the
Church, marijuana is combined with tobacco and smoked "continually all
day, through church services, through everything we do." Pet. App. 2a
(quoting State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982) (quoting
petitioner's testimony)); Pet. App. 19a. /1/
During the 1980's, petitioner and other members of his Church were
convicted on several occasions in federal and state courts for various
marijuana offenses. See Olsen v. Iowa, 808 F.2d 652 (8th Cir. 1986);
United States v. Rush, 738 F.2d 497 (1st Cir. 1984), cert. denied, 470
U.S. 1004 (1985); United States v. Middleton, 690 F.2d 820 (11th Cir.
1982), cert. denied, 460 U.S. 1051 (1983); State v. Olsen, 315 N.W.2d 1
(Iowa 1982); see also Town v. State ex rel. Reno, 377 So.2d 648 (Fla.
1979) (enjoining marijuana use), cert. denied, 449 U.S. 803 (1980). On
one such occasion, petitioner was convicted of possessing approximately
20 tons of marijuana with intent to distribute, in violation of the
Controlled Substances Act, 21 U.S.C. 841(a)(1) & (b)(6). See Rush, 738
F.2d at 501-502.
3. At several times between 1983 and 1985, petitioner requested the
DEA to grant an exemption permitting his Church's sacramental use of
marijuana. In January 1986, he petitioned the United States District
Court for the District of Columbia for a writ of mandamus to compel the
DEA to respond to his petitions. After the district court directed the
DEA to show cause why the writ should not issue, the DEA denied
petitioner's petitions by letter of April 1986, concluding that "the
immensity of the marijuana abuse problem" and the "compelling
governmental interest" in controlling trafficking in and use of
marijuana outweighed the Church's interest in access to the substance.
Pet. App. 3a-4a. The District Court then dismissed petitioner's
mandamus petition as moot. Ibid.
Petitioner then petitioned the United States Court of Appeals for the
District of Columbia Circuit for review of the DEA's decision, and
appealed from the District Court's dismissal of his mandamus petition.
After the Court of Appeals remanded the matter for renewed agency
consideration, petitioner, through a court-appointed amicus curiae,
presented a new proposal that included the following limitations on his
Church's proposed sacramental marijuana use:
Church members would be restricted to using marijuana during
their Saturday evening prayer ceremony, which lasts from 8:00 p.m.
until 11:00 p.m.;
During that ceremony, and for the eight hours following that
ceremony, Church members would not leave the place where the
ceremony is conducted, they would not drive automobiles or
otherwise go out in public;
Ingestion of marijuana would be limited to Church members who
had reached the age of majority, according to the laws of the
state in which the ceremony takes place;
Ingestion of marijuana would be limited to full Church members
who had undergone the confession.
Pet. App. 4a-5a. The DEA then issued a Final order reaffirming its
denial of petitioner's proposal, both in its original form and with the
suggested modifications. The DEA rejected his Free Exercise Claim on
the ground that the government has a compelling interest in the
regulation of controlled substances. It rejected his Establishment and
Equal Protection Clause claims on the ground that his Church's religious
use of marijuana materially differs from the Native American Church's
(NAC's) religious use of peyote. Pet. App. 19a-21a. /2/
In explaining the differences between petitioner's claim and
peyote-use exemption found in 21 C.F.R. 1307.31, the DEA began by noting
that petitioner's Church "advocates the continuous use of marijuana or
'ganga', while the Native American Church's use of peyote is isolated to
specific ceremonial occasions." Pet. App. 21a. The DEA then pointed out
that "while peyote and marijuana are both Schedule I controlled
substances with a defined high potential for abuse, the actual abuse and
availability of marijuana in the United States is many times more
pervasive in American society than that of peyote." Ibid. The DEA
further noted that petitioner's conviction in United States v. Rush,
supra, involved the illegal importation of 20 tons of marijuana, which
"would be an outrageous quantity to supply (the Church's) religious
needs" given its membership. Ibid. Finally, the DEA concluded that
accommodation of the Church's religious use of marijuana would be
"impractical" even under the limitations suggested by amicus on
petitioner's behalf because of the "large amounts of marijuana available
in this country, and the difficulty the DEA would have in trying to
monitor compliance (with) such a requirement." Pet. App. 22a.
4. A divided panel of the United States Court of Appeals for the
District of Columbia Circuit denied petitioner's mandamus petition and
affirmed the DEA's Final Order. /3/ Pet. App. 1a-15a. At the outset,
the court dismissed the possibility that the DEA may not have authority
under the statute to make exemptions for any church save the NAC. The
court ruled that interpreting the statute in such a way would
unnecessarily raise constitutional questions because it would create a
"denominational preference" under Larson v. Valente, 456 U.S. 228
(1982). Pet. App. 6a-7a. The majority next rejected petitioner's Free
Exercise claim, concluding that even the limited use of marijuana
petitioner proposed on remand could not reasonably be accommodated
without undue interference with the government's compelling interest in
controlling the drug. The majority was particularly concerned about the
Church's tradition of failing to provide adequate checks against the
distribution of marijuana to non-members of the faith, of allowing
children to have easy access to marijuana, and of using marijuana
anywhere, not just within the confines of a church facility. Pet. App.
9a-10a. /4/ It also noted the burden the government would have to carry
in supervising the marijuana supply to petitioner's Church. Pet. App.
10a. The majority then rejected petitioner's challenge under the
Establishment and Equal Protection Clauses, holding that his requested
exemption was dissimilar to the exemption in 21 C.F.R. 1307.31 because
of the differences in demand and availability between marijuana and
peyote and because of his Church's tradition of expansive and relatively
uncontrolled use of marijuana. Pet. App. 12a-14a. /5/
Judge Buckley dissented because he believed that the DEA's dismissal
of petitioner's exemption request revealed a denominational preference
as defined in Larson, supra, in favor of the NAC since that church was
granted a peyote-use exemption. Judge Buckley would have ordered the
DEA to grant the requested exemption. In his view, the DEA failed to
advance any sufficient explanation for its claim that it would be too
burdensome for the government to monitor compliance with the limitations
petitioner proposed and had failed to substantiate its representation
that the prevalence of marijuana as compared to peyote made the
government's monitoring role in petitioner's case different from that in
the case of the NAC. Pet. App. 23a-29a.
The court of appeals' holding that the Constitution does not protect
petitioner's asserted right to use marijuana during his religious
services is faithful to this Court's Free Exercise, Establishment, and
Equal Protection Clause decisions and does not conflict with the
decision of any other court of appeals. The DEA's exemption for
religious peyote use in 21 C.F.R. 1307.31 applies equally to all bona
fide religious groups, and the DEA's decision not to extend that limited
exemption for peyote use to marijuana use is supported by valid secular
purposes. The DEA's reasons for distinguishing marijuana use from
peyote use also differentiate the claims in this case from the Free
Exercise Claim in Oregon Employment Division v. Smith, No. 88-1213,
cert. granted, 109 S. Ct. 1526 (1989). Thus, this Court need not hold
this case pending the resolution of Smith.
1. Petitioner's principal contention is that the DEA has created an
unlawful "denominational preference" in favor of the Native American
Church by exempting that church's religious peyote use from the
Controlled Substances Act, while denying a similar exemption for his
Church's religious marijuana use. In petitioner's view, the DEA
regulation in question, 21 C.F.R. 1307.31, cannot survive the strict
scrutiny that must be applied under the Establishment Clause to
denominational preferences. Pet. 7-22.
However, the DEA regulation at issue does not establish any
preference for one denomination over others. Although 21 C.F.R. 1307.31
expressly mentions only the Native American Church, the regulation has
been authoritatively interpreted by the Department of Justice's Office
of Legal Counsel as applying equally to all "bona fide peyote-using
religions in which the actual use of peyote is central to established
religious beliefs, practices, dogmas, or rituals." Pet. App. 201a.
Thus, contrary to petitioner's contention (Pet. 11), the court of
appeals correctly rejected petitioner's "denominational preference"
claim. See Pet. App. 6a-7a.
Because the DEA regulation does not establish a denominational
preference, this Court's decisions in Hernandez v. Commissioner, 109 S.
Ct. 2136, 2146 (1989), Larson v. Valente, supra, and Gillette v. United
States, 401 U.S. 437 (1971), indicate that the applicable test for
determining whether that regulation violates the Establishment Clause is
that set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). The DEA
regulation easily passes that three-part test. Petitioner does not
claim that the DEA regulation has the primary effect of advancing
religion or that it would create any excessive entanglement between
church and state. It is equally evident that the regulation serves a
valid secular purpose -- to accommodate the sincere religious needs of
bona fide peyote-using churches. See, e.g., Church of Jesus Christ of
Latter-Day Saints v. Amos, 483 U.S. 327, 334-335 (1987) (accommodation
of religion is valid secular purpose).
The DEA's refusal to extend the regulation to petitioner's proposed
religious use of marijuana also passes the Lemon test without any
difficulty because the DEA's decision, which does not increase church
and state entanglement at all, is neutral in purpose and primary effect.
The DEA has chosen strictly to limit the availability of religious-use
exemptions from federal drug laws. A religious marijuana-use exemption
falls outside that limit because "the actual abuse and availability of
marijuana in the United States is many times more pervasive in American
society than that of peyote." Pet. App. 21a. To extend the DEA's
exemption of religious peyote use to include religious marijuana use
would transform what is now a very limited exemption for a "'readily
identifiable'" and "'narrow category'" of religious drug use that has
"minimal impact on the enforcement of the (federal narcotics) laws"
(Rush, 738 F.2d at 512), into a broad license that would render the
narcotics laws virtually meaningless and unenforceable (Leary v. United
States, 383 F.2d 851, 861 (5th Cir. 1967), rev'd in part on other
grounds, 395 U.S. 6 (1969)). /6/ As the majority noted below, if the
DEA granted an exemption here, the Establishment Clause would require it
to extend the exemption to any and all religious groups and individuals
whose religious beliefs the DEA could not prove are insincere. Pet.
App. 12a-13a. Given the vast public demand for marijuana and its
widespread availability, the result would be to create a powerful
incentive to feign religious claims, and thus substantially to impair
the DEA's enforcement of the narcotics laws. See Gillette, 401 U.S. at
457 (noting that "'sincerity' is a concept that can bear only so much
adjudicative weight").
Similarly, there is no reason to question the good faith or the
reasonableness of the DEA's considered professional judgment that the
burden of monitoring the limited use of marijuana under petitioner's
proposed exemption would be vastly greater than the burden of monitoring
the limited use of peyote allowed under 21 C.F.R. 1307.31. Pet. App.
21a-22a. It was reasonable for the DEA to conclude that the public
awareness of marijuana and demand for that drug greatly exceeds the
public awareness and demand for peyote, and that marijuana is much more
readily available than peyote. It was equally reasonable for the DEA to
conclude that compliance with the marijuana-use exemption would be more
difficult to monitor than compliance with the peyote-use exemption
because of the Church's tradition of continuous, relatively uncontrolled
use of marijuana and because of petitioner's own conviction for
possessing 20 tons of marijuana, an amount that far exceeds the amount
needed to supply his Church. Ibid. Thus, the DEA's denial of his
petitions was fully consistent with both the Establishment Clause and
the Equal Protection Clause. See Gillette, 401 U.S. at 449 n.14 (same
neutral, secular reasons that justify limitation on military service
exemption under Establishment Clause also satisfy equal protection
concerns).
Even if this Court were to conclude that 21 C.F.R. 1307.31 does
establish a denominational preference, the DEA's reasons for refusing to
extend that regulation to petitioner's claim would withstand strict
scrutiny. The government is entitled to anticipate future harms if they
are reasonably likely to occur and if they relate to a compelling
government interest. For example, in United States v. Lee, 455 U.S. 252
(1982), this Court held that the Free Exercise Clause did not require an
exemption from Social Security taxes for individuals who were
religiously opposed to paying such taxes. The Court accepted the
argument that "(t)he tax system could not function if denominations were
allowed to challenge the tax system because tax payments were spent in a
manner that violates their religious belief." 455 U.S. at 260. It is
equally self-evident that federal narcotics laws "could not function" if
individuals such as petitioner and his fellow Church members could evade
the drug laws merely by alleging that their religion requires them to
use illegal drugs.
Finally, there is no merit to petitioner's argument (Pet. 15-22) that
certiorari is warranted so this Court can "clarify()" what constitutes a
"denominational preference." There is, in fact, no indication that the
term needs clarification: this Court's decision in Hernandez (which
postdates all of the lower court decisions cited by petitioner (Pet.
19-21 & nn. 13, 14)) reviewed this Court's jurisprudence on
denominational preferences. 109 S. Ct. at 2146-2147. In any case, as
noted above, the DEA's denial of an exemption from the drug laws for
marijuana use does not raise a question of denominational preferences,
and is valid under Lemon: it was taken for strictly secular reasons,
subjects all citizens equally to the same prohibition on marijuana use,
and minimizes entanglement between church and state. And even if it
could be said that the regulation does embody a denominational
preference, the DEA's action would withstand strict scrutiny. Thus,
this case is not an appropriate vehicle to explore the meaning of a
"denominational preference" since the outcome would not be affected by
the answer to that question.
2. Petitioner also argues that this Court should grant certiorari to
consider this case in light of, or together with, Oregon Employment
Division v. Smith, No. 88-1213, cert. granted, 109 S. Ct. 1526 (1989).
The issue presented in Smith is whether the Free Exercise Clause affords
members of the Native American Church protection from state criminal
laws barring the use of peyote for religious use during a church
ceremony. The same reasons, however, that distinguish petitioner's
proposed marijuana-use exemption from the peyote-use exemption in 21
C.F.R. 1307.31 also distinguish petitioner's Free Exercise claim from
the Free Exercise claim in Smith. As the court of appeals recognized
(Pet. App. 9a-10a), the Church's tradition of liberal use and
distribution of marijuana would necessitate careful federal supervision
of any marijuana-use exemption, imposing a "large monitoring burden" on
the government. Likewise, it would be difficult for the government to
supervise and regulate the marijuana supply to petitioner's Church.
Petitioner contends (Pet. 24-25) that his request for an exemption
stands on firmer ground than the Free Exercise claim in Smith because he
presented himself to the DEA in advance of prosecution and seeks a
"prospective" exemption, whereas the petitioners in Smith are seeking
immunity for past use of peyote. This distinction is without
significance. If the DEA were to grant petitioner's request, it could
reasonably expect to be faced with an avalanche of applications for such
"prospective" exemptions -- an outcome that would present a massive
enforcement problem in its own right. Nor is there any merit to
petitioner's argument (Pet. 24 n.17) that if the DEA cannot accommodate
his religious use of marijuana along the lines he has proposed, the DEA
should fashion some more limited exception for him. There is no Free
Exercise principle or precedent that requires the government to propose
religious accommodations; that function would require the government to
interpret and weigh the significance of different elements of a church's
religious doctrine, and would thus raise the danger of entanglement.
See Thomas v. Review Board, 450 U.S. 707, 716 (1981) ("Courts are not
arbiters of scriptural interpretation."); Presbyterian Church v. Hull
Church, 393 U.S. 440, 450 (1969) (civil courts not authorized to
interpret and decide meaning of religious doctrines). In short, the
court of appeals correctly upheld the DEA: that agency clearly could
not accept petitioner's proposal without "unduly burdening or disrupting
enforcement of the federal marijuana laws." Pet. App. 11a.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
WILLIAM C. BRYSON
Acting Solicitor General /7/
STUART M. GERSON
Assistant Attorney General
ANTHONY J. STEINMEYER
LOWELL V. STURGILL, JR.
Attorneys
FEBRUARY 1990
/1/ Petitioner also alleges that his sacramental use of marijuana
"does not pose significant physical or psychological health risks" and
does not result in "the types of intense intoxicating effects ordinarily
associated with drug-related marijuana use." Pet. 2 n.2. Although the
DEA's stipulation of facts includes the "method and manner of use of
marijuana by members of the church" (Pet. App. 19a), the DEA has not
stipulated that these allegations are correct. Petitioner's assertions
about the diminished health and safety risks of his proposed marijuana
use are not material, in any case, because the DEA did not rely upon
them in denying petitioner's petitions.
/2/ As an independent basis for its decision, the DEA also concluded
that it lacked statutory authority to grant petitioner's requested
exemption because the Controlled Substances Act does not authorize the
DEA to create religious-use exemptions other than the peyote-use
exemption found in 21 C.F.R. 1307.31. Pet. App. 18a.
/3/ The panel declared petitioner's mandamus petition "moot and
properly dismissed on that basis" (Pet. App. 15a), because the DEA
"completely responded to (petitioner's) exemption petitions in its Final
Order" (Pet. App. 6a n.2).
/4/ The majority also rejected petitioner's attempt to compare
religious use of peyote with the medical use of that substance allowed
under the Controlled Substances Act, reasoning that "the tightly-drawn,
closed system for access to controlled substances by, or on the order
of, medical doctors and researchers cannot tenably be compared to the
permission sought here." Pet. App. 10a n.4.
/5/ In addressing petitioner's establishment and equal protection
claims comparing peyote and marijuana use, the majority noted that it
was employing an "equal protection mode of analysis." Pet. App. 11a-12a
n.5 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 694, 696 (1970) (Opinion
of Harlan, J.)). The majority chose to employ that "mode of analysis"
because petitioner principally relied on the Equal Protection Clause in
his petitions before the DEA and because, as petitioner's
court-appointed amicus acknowledged at oral argument, "in cases of this
character, establishment clause and equal protection analyses converge."
Ibid. (citing Walz, 397 U.S. at 694, 696 (Opinion of Harlan, J.)).
/6/ In United States v. Lee, 455 U.S. 252 (1982), this Court rejected
an analogous claim of a free exercise exemption from Social Security
taxation for persons with religious objections to paying any Social
Security taxes even though self-employed individuals within certain
religious communities enjoy a similar exemption by statute. This Court
noted that such self-employed individuals comprise a "narrow category"
that is "readily identifiable" and "distinguishable from the generality
of wage earners employed by others" so that an exemption for those
individuals would not threaten the integrity of Social Security system.
Id. at 261.
/7/ The Solicitor General is disqualified in this case.
ALAN FRANK, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6252
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1-3) is unreported,
but the judgment is noted at 888 F.2d 1383 (Table).
The judgment of the court of appeals was entered on October 12, 1989.
The petition for a writ of certiorari was filed on December 11, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Whether evidence discovered during an inventory search of a rental
car should have been suppressed.
2. Whether the admission of petitioner's 1985 tax return into
evidence violated 26 U.S.C. 6103 or his Fifth Amendment privilege
against self-incrimination.
Following a jury trial in the United States District Court for the
Western District of Pennsylvania, petitioner was convicted of conspiring
to defraud the United States by impeding, impairing, obstructing, and
defeating the lawful functions of the Internal Revenue Service, in
violation of 18 U.S.C. 371, and of willfully attempting to evade and
defeat the payment of income taxes for the year 1984, in violation of 26
U.S.C. 7201. Petitioner was sentenced to five and one year terms of
imprisonment, to be served consecutively, and fined $100,000.
1. The evidence presented at trial revealed petitioner's
participation in a number of tax evasion schemes designed to hide
profits generated by Acme Music Co., a lucrative vending machine
company. In addition, petitioner failed to report his sale of poker
machines on his 1984 tax returns as required. See Gov't Br. 5-15; C.A.
App. 1441-1442, 1937.
On November 5, 1987, petitioner was arrested while sitting in a
rental car by FBI agents on charges of unlawful flight to avoid
prosecution for violations of state law. Because the federal government
had no impoundment lot, the FBI agents contacted Detective Fox of the
Allegheny County Police Department, who had the car impounded at the
Department's impoundment lot. Pet. 12; C.A. App. 87; United States v.
Frank, 864 F.2d 992, 1000 (3d Cir. 1988) (Frank I), cert. denied, 109 S.
Ct. 2442 (1989). /1/ Detective Fox left instructions with the officer
at the lot to leave the inventory of the car to him and his partner,
noting that they would do it at the earliest practical date. C.A. App.
87; Frank I, 864 F.2d at 1000. The policy of the Allegheny County
Police Department is that the arresting or investigating officer
conducts an inventory search of any car placed in the impoundment lot
for the purpose of protecting the property within the vehicle. Pet. 14;
C.A. App. 59-62; Frank I, 864 F.2d at 1000-1001.
On November 8, 1987, petitioner requested that the personal property
in the car be turned over to his family. Detective Fox had been unable
to conduct an inventory search prior to that time because he and his
partner had to appear at petitioner's bail hearing on Friday, November
6, and Fox did not work the following Saturday, Sunday, or Monday. Pet.
12; C.A. App. 88-89; Frank I, 864 F.2d at 1000. On Tuesday, November
10, 1987, in the presence of a representative of the rental car company,
Detective Fox and his partner searched the car, removing from the locked
trunk and opening a zippered garment bag. The bag contained, among
other things, a file of papers in a manila envelope. When the
representative of the car rental agency disclaimed ownership of the
contents of the garment bag, it was taken to police headquarters, where
an inventory list was prepared. Papers deemed to be of investigative
significance were retained and the rest of the property was turned over
to petitioner's daughter. Pet. 12-13; Frank I, 864 F.2d at 1000.
2. As he had at his trial on charges of unlawful flight to avoid
prosecution, petitioner moved to suppress items seized during the
inventory search of the rental vehicle. Relying upon the findings it
had made at the previous trial, where it concluded that "the police had
complied with all written and oral procedures and regulations incidental
to such searches," the district court again denied the motion to
suppress. C.A. App. 203-204, 207-208, 219.
3. At trial, the government submitted proof that petitioner did not
declare income received from a sale of poker machines on his 1984 tax
return. See, e.g., C.A. App. 1441-1442, 1937. During cross-examination
of Robert Quinlan, the CPA who prepared petitioner's 1984 return,
petitioner asked about reporting the income in a lump sum on the 1985
return. C.A. App. 1469-1470; see also id. at 1482-1483. On redirect,
the government asked Quinlan whether reporting in a lump sum might be
used to conceal details from the Internal Revenue Service. C.A. App.
1482-1485. Petitioner objected to the characterizations in some of the
questions but was overruled. Ibid. Prior to trial, petitioner had
objected to the admission of all "return information" (C.A. App. 369),
and the district court overruled the objection (ibid.).
4. The court of appeals affirmed. Pet. App. 1-3. The court
rejected, inter alia, petitioner's claims that the return information
and the documents obtained during the inventory search should have been
suppressed. Pet. App. 2-3.
1. Petitioner claims (Pet. 15-16) that the inventory search of his
rental car was improper. He asserts (Pet. 15) that this case presents
the "precise legal issue" presented in Florida v. Wells, No. 88-1835
(argued Dec. 4, 1989), and that his case is similarly appropriate for
review at this time.
The Supreme Court of Florida, in State v. Wells, 539 So.2d 464,
468-469, cert. granted, 109 S. Ct. 3183 (1989), concluded that it is
permissible for police officers to open closed containers in an
inventory search only if they are following standard police procedures
that mandate the opening of such containers in every impounded vehicle.
Because the record in that case was "devoid" of any trial court finding
that the standard inventory procedures mandated the opening of closed
containers and the listing of their contents, the court held that the
police acted improperly in seizing and opening a suitcase found in the
trunk of a car during an inventory search. Wells, 539 So.2d at 469.
This case need not be held pending this Court's decision in Wells
because it is not similarly marked by a lack of trial court findings
concerning the extent of police search procedures. Here, Lieutenant
Kowalski of the Allegheny County Police testified regarding the standard
procedures for inventory searches. C.A. App. 59-62. He stated that
under the Allegheny County Police Department's standard procedure, the
arresting or investigating officer had responsibility for conducting an
inventory search of an impounded car and listing the contents of the
automobile in sufficient detail to safeguard all the property. C.A.
App. 61-62. The district court explicitly confirmed the findings it had
made at petitioner's previous trial, ruling that "the police complied
with all written and oral procedures and regulations incidental to such
searches." C.A. App. 177. The court of appeals, in Frank I, concluded
that this finding was not clearly erroneous. 864 F.2d at 1002.
In addition, the court of appeals in Frank I determined that if
Colorado v. Bertine, 479 U.S. 367 (1987), required police compliance
with a pre-existing standard concerning the scope of an inventory
search, that standard was satisfied here. Lieutenant Kowalski testified
that an inventory sufficient to safeguard the property is required by
his police force in each case. That requirement necessarily implies a
detailed account, catalog, or schedule, supporting the opening of closed
containers. Frank I, 864 F.2d at 1003-1004. The facts of this case
demonstrate the validity of the court of appeals' reasoning. Petitioner
had requested that his property be turned over to his family: the
police were therefore justified in recording each item before they
turned it over in order to guard themselves against charges of theft or
loss of petitioner's property. The district court in this case
reiterated that the inventory search here had the purpose of protecting
police from charges of theft. C.A. App. 177.
In any event, as the court of appeals correctly recognized in Frank
I, when petitioner made his request that the police turn over his
property to his family, he waived any claim to an expectation of privacy
(and thus to the applicability of an inventory search standard) in the
contents of the garment bag. See Frank I, 864 F.2d at 1004-1005.
Petitioner was aware, of course, that the car was a rental car and that
the police would have to identify which property in it belonged to him,
rather than to the rental car company or some other party, and would
have to inventory the items in order to protect themselves from charges
of theft. As the court of appeals concluded (ibid.), petitioner
essentially invited the search. Petitioner cites no authority that is
contrary to this alternative ground.
2. Petitioner also claims (Pet. 16-22) that the use of information
from his 1985 income tax return was contrary to the provisions of 26
U.S.C. 6103 and violated his Fifth Amendment privilege against
self-incrimination. Neither assertion has merit.
a. Petitioner argues (Pet. 16) that the government violated 26 U.S.C.
6103 when it used his 1985 tax return against him at trial even though
he was not accused of evasion for that year. Section 6103(h)(4)(A)
permits the use of a tax return in a federal judicial proceeding
pertaining to tax administration if the taxpayer is a party to the
proceeding or the proceeding arose out of, or in connection with,
determining the taxpayer's civil or criminal liability in respect of any
tax imposed by Title 26. Nothing in that Section restricts the use of a
tax return according to the years at issue in the proceeding, and
petitioner never objected to the use of his 1985 return on that ground.
/2/
The question whether a return for a year other than one at issue in
the case is admissible thus turns upon its relevancy. Petitioner never
asserted that the 1985 return was irrelevant. As the district court
recognized (C.A. App. 1903), the indictment charged petitioner with
conspiring with others until 1987 to defraud the United States by
impeding, impairing, obstructing, and defeating the lawful functions of
the Internal Revenue Service in the ascertainment, computation,
assessment, and collection of the revenue, specifically including the
personal income taxes of the petitioner. Petitioner's 1985 tax return
was clearly relevant to that charge and its use was consistent with the
provisions of 26 U.S.C. 6103. Indeed, petitioner is in a poor position
to assert that the admission of this return was contrary to Section
6103, since he attempted to defend against the government's assertion
that income was not reported on the 1984 return by suggesting that it
was properly reported on the 1985 return. C.A. App. 1469-1470,
1482-1483. /3/
b. Petitioner's claim that his privilege against self-incrimination
was violated is groundless. He asserts (Pet. 17-18) that, at the time
he filed his 1985 return, he knew that he was under investigation and
that identifying a substantial portion of the gross income reported on
the return as derived from the sale of coin-operated poker machines
would have tended to incriminate him of the Title 18 violations being
investigated. He argues (Pet. 16-22) that his privilege against
self-incrimination was violated under these circumstances by the
admission of his 1985 tax return and the government's suggestions before
the jury that the return, in which the sale proceeds were simply
reported as part of the total gross income received by him, was used to
hide information from the IRS.
Petitioner did not object on the basis of his Fifth Amendment
privilege to the admission of the information concerning the 1985 return
or to the way the prosecutor characterized it. He has, thus, waived
this claim. See Fed. R. Evid. 103(a)(1); United States v. Sandini, 803
F.2d 123, 126-127 (3d Cir. 1986), cert. denied, 479 U.S. 1093 (1987).
In any event, there was no violation of petitioner's privilege. If
petitioner felt that any question on the tax return called for an
incriminating response, he could have claimed the privilege against
self-incrimination in response to that question. United States v.
Garner, 424 U.S. 648, 650 (1976); United States v. Sullivan, 274 U.S.
259, 263-264 (1927). But while he could decline to answer the question,
he could not answer with a falsehood and rely on the Fifth Amendment to
protect him from the consequences of that action. United States v.
Knox, 396 U.S. 77, 80-84 (1969); United States v. Bryson, 396 U.S. 64,
72 (1969).
Contrary to his claim (Pet. 19), the decision in Marchetti v. United
States, 390 U.S. 39 (1968), does not support petitioner's argument that
he would have incriminated himself if he had invoked the privilege
against self-incrimination on his tax return. In Marchetti, making a
claim of privilege when the wagering excise tax returns were due would
have identified the claimant as a gambler. Garner, 424 U.S. at 659-660
n.11. Invoking the privilege as to the source of gross income on the
individual income tax return here would not have identified petitioner
as engaged in any particular occupation.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
SHIRLEY D. PETERSON
Assistant Attorney General
ROBERT E. LINDSAY
KAREN M. QUESNEL
Attorneys
FEBRUARY 1990
/1/ Prior to the trial in this case, the petitioner was convicted of
traveling in interstate commerce with the intent to avoid prosecution
for forgery and theft, in violation of 18 U.S.C. 1073. The court of
appeals affirmed the conviction, rejecting the argument, inter alia,
that documents obtained during an inventory search of the rental car
should have been suppressed. United States v. Frank, 864 F.2d 992,
1000-1005 (3d Cir. 1988). This Court then denied Frank's petition for a
writ of certiorari raising the question whether the evidence obtained
during the inventory search should have been suppressed. Frank v.
United States, 109 S. Ct. 2442 (1989). In this case, the district court
adopted the finding previously made in Frank I that the inventory search
was proper. C.A. App. 203-204, 219.
/2/ Petitioner says (Pet. 18) that "timely general objections were
made when the returns were introduced at trial." None of those
objections (C.A. App. 40-43, 287-318, 369), however, raised the claim
that petitioner now raises.
/3/ Citing government counsel's statement in closing argument that
petitioner was part of the conspiracy "up until 1986" (C.A. App. 2815),
petitioner asserts (Pet. 17-18) that "any actions thereafter performed
by * * * him were unrelated to any IRS investigation." By this, he
seemingly asserts that his 1985 tax return, which was not filed until
October, 1986, was not relevant to the conspiracy charge. But whatever
the nature of petitioner's activities in 1986, his 1985 return was
obviously relevant because it would aid in determining whether his 1984
return was false and thus part of an attempt to conceal matters from the
IRS or to evade his 1984 income tax liability.
RAYMOND WOODS, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6331
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. 1-9) is reported at
888 F.2d 653.
The judgment of the court of appeals was entered on October 20, 1989.
The petition for a writ of certiorari was filed on December 19, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
Whether petitioner was deprived of his equal protection rights when,
consistent with 18 U.S.C. 3585, he was not given credit on his prison
sentence for time he had spent in a residential treatment center while
released on bond prior to the commencement of his sentence.
Petitioner entered a plea of guilty in the United States District
Court for the District of Colorado on one count of conspiring to rob and
assault a federal officer, in violation of 18 U.S.C. 371. He was
sentenced to 27 months' imprisonment.
1. On February 4, 1988, petitioner was arrested and charged with
assault on a federal officer. On February 8, 1988, the district court
released him on bond with the condition that he reside at a community
treatment center. On March 2, the district court modified petitioner's
bond to enable him to participate in a work release program. Petitioner
pleaded guilty on April 14 to conspiring to rob and assault a federal
officer, in violation of 18 U.S.C. 371. On April 21, petitioner's bond
was modified to enable him to spend weekends at home pending sentence.
Petitioner was sentenced on June 24 to 27 months' imprisonment. At
sentencing, petitioner unsuccessfully sought a credit against his
sentence for the time he had resided at the community treatment center.
Pet. App. 2.
2. The court of appeals affirmed the district court's refusal to
credit the time petitioner had spent at the community treatment center.
Pet. App. 3-9. The court held that 18 U.S.C. 3585, which governs credit
for time served prior to trial, does not entitle defendants to credit
for pre-sentence custody in a conditional release environment such as a
community treatment center. Section 3585, held the court, entitles a
defendant to receive credit only for time spent in actual custodial
incarceration -- not for time spent on conditional release. Pet. App.
4-7.
The court also held that giving credit to residential treatment
center residents serving their sentences -- while denying similar credit
to residents, like petitioner, who had not yet commenced their sentences
-- does not violate equal protection principles. Pet. App. 7-9. The
court explained that the two categories of residents are not "similarly
situated" for equal protection purposes. Id. at 8. "Post-sentence
residents," the court noted, "have been adjudicated guilty and are
serving their sentence (at the treatment center) pursuant to the
Attorney General's discretion to determine the conditions of
punishment." Ibid. Pre-sentence residents, by contrast, "are not being
punished; they are conditionally released to (the treatment center) to
protect the community and assure their presence at trial and
sentencing." Ibid.
Petitioner renews his contention (Pet. 2-7) that equal protection
principles entitle him to credit against his prison sentence for the
time he spent at the residential center while released on bond prior to
the commencement of his sentence. The court of appeals' decision
rejecting that claim is correct and does not conflict with any decision
of this Court or of any other court of appeals. Further review is
therefore unwarranted.
The statute governing credit for time served in custody prior to
commencement of sentence, 18 U.S.C. 3585, provides in pertinent part:
A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior
to the date the sentence commences -- (1) as a result of the
offense for which the sentence was imposed * * *.
18 U.S.C. 3585(b). Section 3585, effective November 1, 1987, replaced
18 U.S.C. 3568 (1982), /1/ which required that a defendant receive
credit for time spent "in custody" prior to commencement of his
sentence; however, Section 3585 did not effect any substantive change
in the old statute. Pet. App. 4; S. Rep. No. 225, 98th Cong., 2d Sess.
128-129 (1984).
The courts have uniformly held that the "custody" contemplated by
Section 3568 is actual custodial incarceration, and that the statute
does not apply to conditions -- no matter how restrictive -- imposed
upon a person released on bail pending commencement of his sentence.
United States v. Mares, 868 F.2d 151, 152 (5th Cir. 1989); Villaume v.
United States Department of Justice, 804 F.2d 498, 499 (8th Cir. 1986),
cert. denied, 481 U.S. 1022 (1987); United States v. Robles, 563 F.2d
1308, 1309 (9th Cir. 1977), cert. denied, 435 U.S. 925 (1978); United
States v. Peterson, 507 F.2d 1191 (D.C. Cir. 1974); Polakoff v. United
States, 489 F.2d 727, 730 (5th Cir. 1974). More particularly, the
courts have also held that time spent in a halfway house pending
commencement of sentence should not be credited against a prisoner's
sentence. See Ramsey v. Brennan, 878 F.2d 995, 996 (7th Cir. 1989);
United States v. Smith, 869 F.2d 835 (5th Cir. 1989); Brown v. Rison,
673 F. Supp. 1505, 1508 (C.D. Calif. 1987); Anderberg v. Martin, 679 F.
Supp. 1034, 1036 (W.D. Okla. 1987). The Bureau of Prisons has taken the
same position in its Policy Statement 5880.24. /2/
Petitioner contends, however, that by allowing credit to
halfway-house residents serving their sentences while denying such
credit to residents who have not commenced their sentence, Section 3585
violates equal protection principles. There is no merit to that claim.
As an initial matter, petitioner is not similarly situated to halfway
house residents who are already serving their sentence. As the court of
appeals correctly explained (Pet. App. 8), "(p)ost-sentence residents
have been adjudicated guilty and are serving their sentence at (the
residential treatment center) pursuant to the Attorney General's
discretion (under 18 U.S.C. 4001(b)) to determine the conditions of
punishment." /3/ Pre-sentence residents, by contrast, are not being
punished; rather, they have been conditionally released to the
residential treatment center in order to protect the community and
assure their presence at trial and sentencing. /4/ See Anderberg v.
Martin, 679 F. Supp. at 1036-1037 ("petitioner was not similarly
situated to others in the community treatment center inasmuch as his
stay there was a special condition of his parole. * * * He was not
there as a direct result of his federal conviction for distribution of
cocaine, and he was therefore not in custody at the community treatment
center in connection with the offense or acts for which sentence was
imposed"); Brown v. Rison, 673 F. Supp. at 1508-1509.
But even if petitioner were "similarly situated" to residents who are
already serving their sentences, the disparity in treatment permitted by
Section 3585 is rationally related to a legitimate governmental
interest. Congress amended 18 U.S.C. 4082 in 1965 to allow service of a
sentence at a community treatment center, in an effort to facilitate the
rehabilitation of persons convicted of an offense against the United
States. Pub. L. 89-176, 79 Stat. 674 (1965). As Congress explained at
the time:
Testimony before the ad hoc subcommittee and the studies of the
National Penitentiaries Subcommittee indicate that the period
immediately following release from prison is most critical. It is
during this period that all too many offenders get back into
trouble as a result of an almost total lack of resources,
guidance, employment, and even food and shelter. The provision of
the bill would create an organized means of accomplishing the
re-absorption of ex-prisoners into the community, reducing the
crime rate, and thereby promoting the public safety.
S. Rep. No. 613, 89th Cong., 1st Sess. 2 (1965). Thus, the goal of this
legislation was "to facilitate the re-entry of convicts into society by
making the last stage of their confinement transitional * * *." Ramsey
v. Brennan, 878 F.2d at 997. "There can be little doubt that permitting
service of the remainder of a sentence in a (community treatment center)
where the prisoner can be re-integrated into the community is a rational
means of achieving a legitimate goal." Brown v. Rison, 673 F. Supp. at
1510.
By contrast, petitioner's stay at the community treatment center did
not follow his custodial incarceration; accordingly, granting him the
credit he seeks would not serve the purpose of "re-integrat(ing) him
into the community" (Brown, 673 F. Supp. at 1510). As the court
explained in Ramsey, 878 F.2d at 997, Section 4082's policy of providing
assistance to prisoners during the transitional period between
confinement and freedom "has no application to a prisoner moving in the
opposite direction * * *." /5/
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
DEBORAH WATSON
Attorney
FEBRUARY 1990
/1/ 18 U.S.C. 3568 (1982) was repealed effective November 1, 1987, by
Pub. L. No. 98-473, tit. II, Sections 212(a)(2) and 235(a)(1), 98 Stat.
1987, 2031 (1984).
/2/ Policy Statement 5880.24(5)b(5) provides in pertinent part:
Time spent in residence in a residential community center (or a
community based program located in a Metropolitan Correctional
Center of jail) under the provisions of 18 U.S.C. 3146 as a
condition of bail or bond, including the "Pretrial Services"
program (18 U.S.C. 3152-3154), is not creditable as jail time
since the degree of restraint provided by residence in a community
center is not sufficient restraint to constitute custody within
the meaning or intent of 18 U.S.C. 3568. Also, a "highly
restrictive" condition of bail or bond, such as requiring the
defendant to report daily to the U.S. Marshal, is not considered
as time in custody. However, the time spent in a jail type
facility (not including a community based program located in a
Metropolitan Correctional Center or jail) as a condition of bail
or bond is creditable as jail time because of the greater degree
of restraint.
/3/ 18 U.S.C. 4001(b), which authorizes the Attorney General to house
prisoners in residential treatment centers (halfway houses), provides in
pertinent part:
(1) The control and management of Federal penal and correctional
institutions, except military or naval institutions, shall be
vested in the Attorney General * * * (2) The Attorney General may
establish and conduct industries, farms, and other activities and
classify the inmates; and provide for their proper government,
discipline, treatment, care, rehabilitation, and reformation.
/4/ 18 U.S.C. 3142(c), which authorizes a court to grant a criminal
defendant conditional release, provides in pertinent part:
(1) If the judicial officer determines that (release on personal
recognizance) will not reasonably assure the appearance of the
person as required or will endanger the safety of any other person
or the community, such judicial officer shall order the pretrial
release of the person -- (B) subject to the least restrictive
further condition, or combination of conditions, that such
judicial officer determines will reasonably assure the appearance
of the person as required and the safety of any other person and
the community * * *.
/5/ Contrary to petitioner's claim (Pet. 4-5), the decision of the
court of appeals does not conflict with that of the Eleventh Circuit in
Johnson v. Smith, 696 F.2d 1334 (1983). In Johnson, the defendant
sought credit against his prison sentence for time spent in a community
treatment center prior to commencement of his sentence. The district
court ordered that the defendant be credited with time spent in the
center. The court found that the government had offered neither a
rational reason for the distinction between pre-sentence and
post-sentence detainees, nor had it in any way refuted the contention
that the defendant was similarly situated to post-sentence detainees.
Accordingly, the court held that the failure to give the defendant
credit violated his equal protection rights.
The court of appeals affirmed. The court declined to allow the
government to argue for the first time on appeal that the defendant was
not similarly situated to post-sentence detainees or that rational
reasons justified the difference in treatment; the court therefore
affirmed on the particular record (or lack thereof) established in the
trial court. 696 F.2d at 1338. In light of the meager record, however,
the court emphasized the limited reach of its decision (id. at
1338-1339):
We do not base our decision on any determination as to whether or not
post-sentence and pre-sentence detainees are always similarly situated
under (18 U.S.C. 3568) or whether or not a rational reason for disparate
treatment of the two groups could ever be shown. Further, this decision
does not establish a constitutional or statutory right to credit for all
pre-sentence detainees for time spent at this center or under conditions
similar to the center.
STEPHEN A DUBOV, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6292
In The Supreme Court Of The United States
October Term, 1989
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 memorandum opinion of the court of appeals, Pet. App. A, is
unreported, but is noted at 883 F.2d 1025 (Table).
The judgment of the court of appeals was entered on August 10, 1989.
The petition for a writ of certiorari was filed on December 18, 1989,
and is therefore out of time under Supreme Court Rule 20.1 (1980). The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
Whether petitioner's confession was involuntary.
After a jury trial in the United States District Court for the
Northern District of California, petitioner was convicted of possession
with intent to distribute approximately 13 kilograms of cocaine, in
violation of 18 U.S.C. 841(a)(1). Petitioner was sentenced to life
imprisonment and fined $1 million. /1/ The court of appeals affirmed.
1. On March 9, 1987, California state parole agent Richard Schramm
began supervising petitioner, who was on state parole. Petitioner's
conditions of parole, which he had acknowledged in writing, included a
condition allowing warrantless searches of petitioner's person,
residence, and property, and a prohibition against possession of any
firearm. Gov't Supp. C.A. Br. 2-3.
Shortly before his scheduled release from parole, petitioner failed
to appear at two previously arranged meetings with Agent Schramm.
Schramm decided to conduct a search, prusuant to the parole condition,
of petitioner's residence. Schramm, accompanied by two other agents,
proceeded to the residence and informed petitioner of his intention to
search. Petitioner and his girlfriend were ushered into the dining
room, where an agent stayed with them. A male visitor was allowed to
leave. Gov't Supp. C.A. Br. 3.
Agent Schramm went up to the second floor, where he found a
double-barreled shotgun in a bedroom. Returning to the first floor, he
arrested petitioner for violating his parole by possessing a firearm.
Schramm went back upstairs, where he found, in a paper bag, a plastic
bag containing a large quantity of a white powdery substance. At
Schramm's request, one of the two other agents contacted the Narcotics
Division of the San Francisco Police Department for assistance. Gov't
Supp. C.A. Br. 3-4.
Officer Mario Delgadillo arrived at the residence and tested the
white powder, which proved positive for cocaine. Delgadillo then read
petitioner his Miranda rights. Petitioner said that he understood his
rights and did not want to talk to Delgadillo, but did want a lawyer.
Delgadillo helped the agents to complete their search of the lower level
of the house, then moved petitioner and his girlfriend upstairs.
Shortly after the agents began to search the second floor, petitioner
called Delgadillo aside and asked the officer to let his girlfriend go.
Delgadillo said the search would have to be completed first. Petitioner
then offered to show the office where 13 kilograms of cocaine were
located if the officer would allow his girlfriend to leave. Delgadillo
said he would consider it. Gov't Supp. C.A. Br. 4-5.
Delgadillo and petitioner went into a bedroom, where at petitioner's
direction Delgadillo recovered 13 kilograms of cocaine from behind a
concealed panel over the bed. /2/ Petitioner said the cocaine was his.
His girlfriend was released. Delgadillo and the agents continued to
search the house. They found marijuana, more cocaine, drug distribution
paraphernalia, and a nylon bag containing $7,264. Gov't Supp. C.A. Br.
5.
After the search was completed, DEA agents arrived at the house.
Agent Richard G. Plunkett approached petitioner, who was sitting in the
kitchen, and asked him if he had been read his rights and understood
them. Petitioner indicated that he did. Plunkett asked petitioner if
he would answer a few questions. Petitioner agreed to do so. Gov't
Supp. C.A. Br. 5-6.
Plunkett asked petitioner why he had 13 kilograms of cocaine in his
house while he was still on parole. Petitioner said he expected to
begin selling cocaine in kilograms quantities when, a few days later,
his parole term ended. Plunkett asked petitioner whether he had been
selling cocaine while on parole. Petitioner said he had, but only in
small quantities, to avoid trouble with the police. Petitioner also
said that the $7,000 found by the agents was a down payment for seven of
the kilograms Delgadillo had found. He was to pay $17,500 per kilogram
for them and intended to resell them in the Bay area for between $20,000
to $21,500 apiece. Although petitioner was fully cooperative and
answered questions, he began, as time passed, to sweat profusely and nod
off to sleep. Plunkett interpreted this to mean that petitioner was
using heroin. Gov't Supp. C.A. Br. 6.
2. In the district court, petitioner moved to suppress the cocaine
seized at his residence and his statements admitting possession of the
cocaine on the ground that the warrantless search of the residence was
unlawful. Because the search was proper under the conditions of
petitioner's parole, the district court denied the motion. Gov't Supp.
C.A. Br. 8 n.3. /3/ Petitioner did not claim in the district court that
his statements to the law enforcement officers were involuntary or had
been coerced in violation of his Fifth Amendment right to counsel.
3. The court of appeals affirmed. Without reaching the issue of
whether petitioner had waived his voluntariness claim, the court found
that his confession was not elicited by police coercion, and was
therefore voluntary under Colorado v. Connelly, 479 U.S. 157, 167
(1986). The court further found that petitioner was lucid when he
confessed, and therefore concluded that his confession was knowing and
intelligent under Grooms v. Keeney, 826 F.2d 883, 887 (9th Cir. 1987).
Pet. App. A2. /4/
Petitioner renews his claim, first raised in the court of appeals,
that he was subjected to police coercion in violation of his Fifth
Amendment right to counsel under Miranda v. Arizona, 384 U.S. 436
(1966). Pet. 3-4. /5/ As the court of appeals correctly found, this
fact-bound contention is without merit. It does not warrant further
review by this Court.
1. Not only is the record barren of support for petitioner's claim
that he was subjected to police coercion, but the evidence at trial
flatly contradicts that claim. Once Officer Delgadillo had ascertained
that the substance found by Agent Schramm was cocaine, he read
petitioner his Miranda rights; when petitioner declined to speak
further with him, the interrogation stopped. Shortly after the officers
began to search the second floor of the residence, however, petitioner
himself initiated a second conversation with Delgadillo. Once
petitioner began this conversation, he waived his Fifth Amendment right
to counsel, and Officer Delgadillo properly questioned him. Edwards v.
Arizona, 451 U.S. 477, 484-485 (1977). /6/
While Delgadillo did tell petitioner that the officers would not
allow anyone to leave the residence until their search was completed, he
did so only in response to petitioner's question, and his statement was
not coercive. See Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Moreover, the detention of petitioner's girlfriend until completion of
the parole agents' valid consensual search for additional contraband was
entirely proper. See Michigan v. Summers, 452 U.S. 692, 705 (1981)
(detention of occupant permissible during search of residence for
contraband pursuant to valid warrant).
It was only during this second conversation with Officer Delgadillo,
a conversation that petitioner had himself initiated, that petitioner
offered to show the officers where the 13 kilograms of cocaine were
hidden. Petitioner then took Delgadillo into a bedroom, pointed out the
panel behind which the cocaine was concealed, and told Delgadillo how to
remove the panel. In the totality of these circumstances, petitioner's
course of conduct cannot reasonably be characterized as "coerced." /7/
It may be true, as petitioner suggests, that he was motivated to lead
Officer Delgadillo to the 13 kilograms of cocaine by a desire to secure
his girlfriend's release. Pet. 3. He may even have felt "coerced" to
cooperate. Ibid. Petitioner's motivation and subjective feelings,
however, are not relevant to the issue of whether his Fifth Amendment
rights were violated. In the absence of coercive police activity, the
Constitution is not violated. Colorado v. Connelly, 479 U.S. 157, 164,
167 (1986) ("coercive police activity is a necessary predicate" to
finding of involuntariness; suspect's mental condition alone is
insufficient). In the present case, as the court of appeals correctly
found, petitioner's confession was not elicited by police coercion.
Pet. App. A2. Accordingly, he was not deprived of his Fifth Amendment
right to counsel.
2. Petitioner's related suggestion that his actions were involuntary
because he was under the influence of heroin at the time he led Officer
Delgadillo to the 13 kilograms of cocaine and claimed ownership of them,
is also without merit. Pet. 2-3. To begin with, petitioner misstates
the sequence of events on the day of the search when he asserts that
"(he) was under the visible influence of heroin during (his
conversations with Officer Delgadillo), and was sweating profusely and
nodding off periodically." Pet. 2-3. The only relevant testimony in the
record, that of DEA Agent Plunkett, shows that the DEA agents did not
arrive at petitioner's residence and Agent Plunkett did not interview
petitioner or observe his physical condition until after petitioner had
led Officer Delgadillo to the 13 kilograms of cocaine and claimed
ownership of them. There is thus no evidence that petitioner was either
influenced or impaired by heroin during his contacts with Officer
Delgadillo, and the record related to those contacts convincingly
refutes any suggestion that petitioner's purported heroin use had
rendered his previous actions involuntary. Accordingly, the court of
appeals correctly found that petitioner was lucid when he confessed, and
that his confession was therefore knowing and intelligent. Pet. App.
A2.
Furthermore, even if petitioner was suffering from heroin withdrawal
when he spoke with Officer Delgadillo, that circumstance cannot, without
police coercion, constitute a violation of petitioner's Fifth Amendment
rights or render his statements constitutionally involuntary. Colorado
v. Connelly, 459 U.S. at 164, 167. /8/
3. Finally, petitioner plainly waived the claim that his confession
was involuntary when he failed to move to suppress his statements in the
district court. Although the court of appeals did not rely on waiver in
rejecting petitioner's Fifth Amendment claim, the government may "defend
its judgment on any ground properly raised below whether or not that
ground was relied upon, rejected, or even considered by the * * * Court
of Appeals." Wahsington v. Yakima Indian Nation, 439 U.S. 463, 476 n.20
(1979). See, e.g., Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982); United
States v. New York Telephone Co., 434 U.S. 159, 166 n.8 (1977). Here,
the government argued that "the voluntariness issue is waived on
appeal." Gov't C.A. Supp. Br. 8. See id. at 11. Accordingly,
petitioner's claim does not merit this Court's review.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS
Assistant Attorney General
THOMAS M. GANNON
Attorney
FEBRUARY 1990
/1/ Petitioner's prior record included a state narcotics charge in
which a young woman was paralyzed as a consequence of an overdose of
drugs provided by petitioner. Gov't Supp. C.A. Br. 2.
/2/ Subsequent DEA tests showed that the cocaine ranged in purity
from 88.5% to 98.7%. Gov't Supp. C.A. Br. 6-7.
/3/ In the court of appeals, petitioner conceded the correctness of
this ruling. Gov't Supp. C.A. Br. 8 n.3.
/4/ In the court of appeals, petitioner had also advanced several
claims of ineffective assistance of counsel during his trial. Relying
on Strickland v. Washington, 466 U.S. 668, 687 (1984) and United States
v. Pope, 841 F.2d 954, 958 (9th Cir. 1988), the court of appeals found
that petitioner had not been prejudiced by his counsel's alleged failure
to raise certain specified issues, and that petitioner's other claims
could not be resolved until the district court had developed a factual
record in a collateral proceeding under 28 U.S.C. 2255. Pet. App. A2.
Those claims are not presently before this Court.
/5/ Petitioner does not challenge his interrogation by DEA Agent
Plunkett.
/6/ Accord, United States v. Most, 789 F.2d 1411, 1416-1417 (9th Cir.
1986); United States v. Sanko, 787 F.2d 1249, 1250-1251 (8th Cir.
1986); Huckelbury v. Wainwright, 781 F.2d 1544, 1545 (11th Cir. 1986);
Stawicki v. Israel, 778 F.2d 380, 383-384 (7th Cir. 1985), cert. denied,
459 U.S. 879 (1986).
/7/ Cf. United States v. Crespo de Llano, 838 F.2d 1006, 1016 (9th
Cir. 1987) (defendant's disclosure of location of cocaine voluntary and
not coerced despite police informing her of search warrant and intention
to "tear the house apart" until cocaine found); United States v. Most,
789 F.2d at 1416-1417.
/8/ See Dunkins v. Thigpen, 854 F.2d 394, 399-400 (11th Cir. 1988)
(mentally retarded defendant capable of valid waiver), cert. denied, 109
S.Ct. 1329 (1989); Wernert v. Arn, 819 F.2d 613, 616 (6th Cir. 1987)
(defendant's alleged ingestion of drugs and alcohol the day before
confession did not render her incapable of making valid waiver), cert.
denied, 108 S.Ct. 711 (1988); United States v. Martin, 781 F.2d 671,
673-674 (9th Cir. 1986) (use of pain-killing medication did not result
in overbearing of suspect's will).
JAMES ALFONSO GREENE, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6239
In The Supreme Court Of The United States
October Term, 1989
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 is reported at 880 F.2d 1299.
/1/
The judgement of the court of appeals was entered on August 21, 1989.
A petition for rehearing was denied on September 28, 1989. Pet. App.
B1. The petition for a writ of certiorari was filed on November 24,
1989. The jurisdiction of this Court is invoked under U.S.C. 1254(1).
Whether petitioner is entitled to Section 2255 relief on the ground
that his sentence was enhanced in part on the basis on his 1962 burglary
convictions that were subsequently determined to be invalid where (1)
petitioner did not raise this issue at trial or on direct appeal from
his conviction, and (2) the state court that invalidated those
convictions did so because the State was unable to produce evidence from
1962 to buttress the entries on the 1962 Judgment and Commitment order
showing that petitioner was sentenced on those burglary charges.
Following a jury trial in the United States District Court for the
Southern District of Georgia, petitioner, a felon, was convicted of
possessing a firearm in violation of 18 U.S.C. App. 1202(a). /2/ He was
sentenced to fifteen years' imprisonment without parole. The court of
appeals affirmed his conviction. United States v. Greene, 810 F.2d 999
(11th Cir. 1986).
Thereafter, petitioner filed a motion under 28 U.S.C. 2255 to vacate
his sentence. The district court denied the motion. Pet. App. A1. The
court of appeals affirmed.
1. The evidence at trial and the procedural history of this case are
set forth in the opinion of the court of appeals. 880 F.2d at
1299-1307. Briefly, in 1985, federal agents seized three firearms from
petitioner's residence following his arrest on drug charges.
Petitioner, a prior felon, was tried and convicted for possessing a
firearm. During the trial and at sentencing, the government submitted
evidence that petitioner had six previous burglary convictions, four in
1962, one in 1970, and one in 1977. 880 F.2d at 1300. The district
court sentenced petitioner to 15 years' imprisonment without parole,
which was the mandatory minimum sentence required by 18 U.S.C. App.
1202(a) for a defendant with "three previous convictions by any court *
* * for robbery or burglary." 880 F.2d at 1301. Neither at trial nor on
direct appeal did petitioner allege that he had not been convicted on
the 1962 burglary charges. 880 F.2d at 1305. The court of appeals
affirmed petitioner's conviction. United States v. Greene, 810 F.2d 999
(11 Cir. 1986).
2. In 1987, petitioner petitioned for a writ of habeas corpus in a
Georgia state court, contending that he was not convicted on the 1962
burglary charges. A Judgment and Commitment Order relating to those
charges indicated that petitioner received concurrent sentences on the
indictment that charged the burglaries and a separate indictment that
charged petitioner with aggravated assault. See Pet. App. D10-D11. No
other records were available: a transcript of the 1962 proceedings was
not located; petitioner's trial counsel had died in the interim and his
files were destroyed; and the sentencing court judge and other official
personnel had no current recollection of the matter. Gov't. C.A. brief
at 2 n.1.
Holding that no transcript of plea proceedings relating to the
alleged 1962 burglary indictment existed and that petitioner "never
signed any paper indicating that he intended to plead guilty to that
indictment," the state court concluded that "no valid plea of guilty or
conviction for burglary was entered." Ex. B to Pet. App. E (petitioner's
2255 motion), at 2.
3. Petitioner then filed a motion under 28 U.S.C. 2255 to set aside
his sentence. Pet. App. E. He contended that as a result of the state
court's decision, there were only two valid prior burglary convictions
that could be used to enhance his sentence under 18 U.S.C. App. 1202(a).
Because the statute requires three convictions to support imposition of
the mandatory 15-year sentence that petitioner received, that sentence
was alleged to be invalid.
On April 6, 1988, the district court held a hearing on petitioner's
motion. Pet. App. C1-C24. The government contended that petitioner had
waived his challenge to the 1962 convictions by not raising the issue at
trial or on direct appeal. It also submitted evidence that petitioner
was convicted in 1981 for burglary, a conviction that could be used
together with petitioner's 1970 and 1977 burglary convictions to sustain
petitioner's sentence. In response, petitioner contended: (1) that he
had cause for not challenging the validity of his 1962 convictions
because his attorney was ineffective in failing to raise the issue at
trial after petitioner told him that they were invalid; (2) his 1981
conviction was invalid because he pleaded guilty without the assistance
of counsel and without having waived counsel; and (3) his 1977
conviction was improperly used to enhance his sentence because the
Judgment and Commitment Order reflected only a conviction for theft, not
burglary.
The district court concluded that petitioner's sentence was supported
by at least three valid burglary convictions. The court found, after
examining the transcript of petitioner's guilty plea to the 1981
burglary, that petitioner validly waived counsel at that proceeding,
rejecting petitioner's contrary assertion as "not credible." Pet. App.
C22. It scheduled another hearing, however, to take testimony on the
issue of whether petitioner's counsel denied petitioner effective
assistance by not raising the invalidity of petitioner's 1962 burglary
convictions at trial or on direct appeal. Pet. App. C22-C23.
The additional hearing was held on June 16. Pet. App. D1-D18. The
sole witness was David Cohen, a Federal Public Defender who represented
petitioner at trial on the instant offenses. Cohen testified that he
did not recall petitioner having told him that he had not pleaded guilty
to the 1962 burglary indictment. Pet. App. D4-D5. Cohen emphasized
that he had carefully examined the 1962 burglary charges, and that he
had attacked them on other grounds at trial. Pet. App. D5. Cohen also
testified that he had examined the 1962 Judgment and Commitment order
that reflected that petitioner was sentenced to concurrent sentences on
the burglary counts and on the assault charge. Pet. App. D9-D11.
The district court denied petitioner's motion. It held that
petitioner was not denied the effective assistance of counsel at trial,
finding that Cohen "did pursue every lead which was apparent to him, and
that at no time did (petitioner) advise Mr. Cohen that he challenged
that particular conviction." Pet. App. D18.
4. The court of appeals affirmed. First, the court held that the
1981 burglary conviction could not be used to support the enhanced
sentence. The court found that the record of the 1981 guilty plea
hearing was inadequate to conclude that petitioner knowingly and
intelligently waived his right to counsel at that proceeding. 880 F.2d
at 1301-1304. The court held that the Sixth Amendment bars the use of
such a conviction for purposes of enhancing punishment under Section
1202. 880 F.2d at 1302. /3/
The court also held, however, that petitioner could not attack the
use of the 1962 burglary convictions to enhance his sentence, because he
had not established cause for his failure to raise the alleged
invalidity of the 1962 burglary convictions at trial or on direct
appeal. 880 F.2d at 1307. The court rejected petitioner's claim that
cause was demonstrated by his counsel's ineffective performance, stating
that the district court's finding that his counsel performed diligently
was not clearly erroneous. 880 F.2d at 1306. The court emphasized that
petitioner had been sentenced to prison pursuant to a Judgment and
Commitment Order that reflected that petitioner had been convicted for
four burglaries; that all available records indicated that petitioner
had been convicted of burglary; and that petitioner did not inform his
trial counsel that he had not pleaded guilty to any of the 1962
burglaries. Ibid. Under those circumstances, petitioner's counsel did
not err in not investigating further the possibility that petitioner's
1962 burglary convictions were invalid. Ibid.
The court also found that, despite the fact that the Judgment and
Commitment Order for the 1977 conviction reflected a conviction for
theft, the record of the case showed that it was properly classified as
a conviction for burglary. 880 F.2d at 1307. Alternatively, the court
found that even if that conviction were not for burglary, petitioner
would not be entitled to relief because the 1962 burglary convictions
were sufficient to support imposition of enhanced punishment under
Section 1202. Ibid.
Petitioner contends (Pet. 9-12) that the courts below erred in
denying his Section 2255 motion. He argues that he was prejudiced by
the imposition of an enhanced sentence based in part on 1962 burglary
convictions that have since been determined to be invalid. The court of
appeals, however, correctly held that Section 2255 relief was
unwarranted because petitioner did not show "cause" for his failure to
raise the issue at trial or on direct appeal. The decision of the court
of appeals does not conflict with any decision of any other court.
Further review of this issue is not warranted.
1. Section 2255 is limited to constitutional and jurisdictional
claims and to those trial errors that result in a complete miscarriage
of justice. See United States v. Addonizio, 442 U.S. 178, 185 (1979).
Section 2255, however, is not a substitute for a direct appeal. If a
defendant did not raise his claim at trial or on direct appeal, he
cannot prevail on that claim in a Section 2255 motion unless he shows
both "cause" and "prejudice" for the default. United States v. Frady,
456 U.S. 152, 167 (1982). To demonstrate cause, the defendant must
ordinarily show that his default was due to a factor external to the
defense, such as the novelty of the claim or interference by
authorities. Murray v. Carrier, 477 U.S. 478, 488 (1986). In addition,
ineffective assistance of counsel will also constitute cause for a
default. Ibid. On the other hand, a defendant might not have to meet
the cause and prejudice test if a constitutional violation resulted in
the conviction "of one who was actually innocent," id. at 496, or where
the error "undermined the accuracy of the guilt or sentencing
determination." Smith v. Murray, 477 U.S. 527, 539 (1986).
2. Petitioner argues first (Pet. 9-10) that he should not be required
to meet the cause and prejudice test because he was sentenced on the
basis of convictions that the state subsequently determined to be
invalid. Petitioner overlooks, however, that the Georgia state court
invalidated his 1962 burglary convictions only because the State's
evidence -- after the passage of 25 years -- was "inadequate to rebut"
petitioner's evidence that he was not convicted on the 1962 burglary
charges. Ex. B. to Pet. App. E (petitioner's 2255 motion), at 2. The
State's inability to corroborate the entries on the 1962 Judgment and
Commitment order was due to the fact that, during the lengthy interim,
the record of petitioner's 1962 trials became unavailable; petitioner's
attorney's files were destroyed after the attorney died; and the
sentencing judge and other court personnel forgot about the case. Under
these circumstances, petitioner has not shown that the use of his 1962
burglary convictions to enhance his sentence constituted a fundamental
defect in the proceedings that would entitle him to Section 2255 relief.
Petitioner contends further (Pet. 10-11) that the cause and prejudice
standard should not apply because he had no opportunity to raise the
invalidity of his 1962 burglary convictions at trial. To the contrary,
petitioner could have filed a motion challenging the validity of those
convictions with the district court at any time prior to sentencing.
Petitioner was on notice that the government would seek to enhance his
sentence with his 1962 burglary convictions because they were alleged in
the indictment. Petitioner undoubtedly knew whether he had been
convicted on the 1962 burglary charges. Therefore, he had sufficient
opportunity at trial to challenge them.
Finally, petitioner contends (Pet. 11-12) that he demonstrated cause
for his default because his attorney was ineffective in not raising the
invalidity of his 1962 burglary convictions at trial. The courts below,
however, held that petitioner's trial counsel was not ineffective in
this matter. Their essentially factual determination warrants no
further review. Cf. Burger v. Kemp, 483 U.S. 776, 785 (1987) (findings
of two courts below that attorney did not engage in conflict of interest
entitled to substantial deference). As explained by the court of
appeals (880 F.2d at 1306):
Petitioner's 1962 convictions, including his burglary convictions,
were the basis of a Judgement and Commitment Order pursuant to
which petitioner had been incarcerated for a number of years. All
of the records regarding petitioner's prior arrests indicated that
he had been convicted and incarcerated for burglary. Petitioner
did not inform counsel, and counsel had no other indication, that
he had not pleaded guilty and had not been convicted after trial
of burglary in 1962.
For those reasons, petitioner's counsel did not err in not
investigating further the possibility that petitioner's 1962 burglary
convictions were invalid. In sum, petitioner has not shown "cause" for
his failure to challenge the validity of his 1962 burglary convictions
at trial and on direct appeal. Therefore, the courts below correctly
denied his Section 2255 motion.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
THOMAS E. BOOTH
Attorney
FEBRUARY 1990
/1/ For convenience in referring to unpublished materials, we have
designated by letter such materials in the appendices to the petition
for certiorari. The judgment of the district court has been designated
Appendix A. The denial by the court of appeals of petitioner's petition
for rehearing is Appendix B. The transcript of the district court
hearing on April 6, 1988 is Appendix C. The transcript of the district
court hearing on June 16, 1988 is Appendix D. Petitioner's motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255, with
exhibits A and B, is Appendix E.
/2/ Petitioner was convicted on March 27, 1986. Later that year, the
statute under which he was convicted was amended and recodified. Pub.
L. No. 99-308, 100 Stat. 449 (1986). The current statute, 18 U.S.C.
924(e)(1), provides for a mandatory fifteen year prison term for a
defendant who has three previous convictions for a "violent felony or a
serious drug offense, or both." Section 924(e)(2)(B)(ii) includes the
offense of burglary within the definition of a "violent felony."
This case would not be affected by the decision in Taylor v. United
States, No. 88-7194, cert. granted, October 10, 1989. Taylor concerns
the scope of the term "burglary" for purposes of Section 924(e)(2)(B)
(ii). Because petitioner was convicted under the predecessor statute,
18 U.S.C. App. 1202, the meaning of Section 924(e)(2)(B)(ii) cannot
affect the validity of his sentence. Moreover, petitioner nowhere
asserts that his 1962 convictions, which are the sole subject of the
petition, could not if valid have been used to enhance his sentence
under Section 1202.
/3/ Petitioner had asserted that the government had forfeited any
right it may have had to use the 1981 conviction against him because,
prior to petitioner's trial, the government had filed a Notice of
Superceding Indictment in which it stated that the 1981 conviction "was
without counsel and could not be used to enhance punishment under (18
U.S.C. App. 1202)." Given the holding by the court of appeals that the
1981 conviction could not be used to enhance punishment because
petitioner had not knowingly and intelligently waived his right to an
attorney, it was unnecessary for the court to decide whether the
government would have been precluded from relying on the 1981 conviction
in any event.
LORENZO RIVERA, PETITIONER V. UNITED STATES OF AMERICA
WILLIE BURGESS, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6226, 89-6266
In The Supreme Court Of The United States
October Term, 1989
On Petitions 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 affirming petitioners'
convictions (Pet. App. 1a-46a) is unreported. /1/ The opinion of the
court of appeals affirming the judgement of criminal forfeiture of
petitioner Burgess's property (89-6266 Pet. App. 32-34) is reported at
884 F.2d 544.
The judgements of the court of appeals were entered on September 8,
1989. A petition for rehearing was denied on October 17, 1989. 89-6266
Pet. App. 38-39. The petition for a writ of certiorari in No. 89-6226
was filed on December 7, 1989. The petition for a writ of certiorari in
No. 89-6266 was filed on December 14, 1989. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
1. Whether the district court properly admitted into evidence a
ledger recording various narcotics transactions that contained one entry
in petitioner Rivera's handwriting (89-6226 Pet. 6-9).
2. Whether the district court violated Federal Rule of Criminal
Procedure 32(c)(3)(D) by not appending to the presentence investigation
report a "written record of (the court's) findings and determinations"
regarding disputed issues of fact contained in that report (89-6226 Pet.
9-10).
3. Whether there was sufficient evidence to support petitioner
Rivera's conviction on five counts charging him with possessing heroin
with intent to distribute it, in violation of 21 U.S.C. 841(a)(1)
(89-6226 Pet. 11-13).
4. Whether the forfeiture allegation under 21 U.S.C. 853 charged in
the indictment violated the Due Process Clause and otherwise interfered
with petitioner Burgess's Sixth Amendment right to counsel (89-6266 Pet.
11-22).
After a jury trial in the United States District Court for the
Northern District of Georgia, petitioners were convicted of conspiracy
to distribute heroin and cocaine, in violation of 21 U.S.C. 846, as well
as various substantive narcotics offenses. /2/ Rivera was sentenced to
a total term of 30 years' imprisonment, to be followed by term of 10
years' special parole. Burgess was sentenced to a total term of 25
years' imprisonment, to be followed by a term of 10 years' special
parole. Based on the jury's separate verdict of forfeiture, the
district court also ordered Burgess's 27 quarter horses forfeited to the
United States under 21 U.S.C. 853(a)(1) and (2). The court of appeals
affirmed.
1. Petitioners Lorenzo Rivera and Willie Burgess, together with 25
other individuals, were charged with operating an extensive heroin and
cocaine distribution ring in Georgia during the early 1980s. Since
Burgess used his horse ranch in Covington, Georgia, as a "front" for his
narcotics activities, the indictment also sought criminal forfeiture of
that ranch, including the 27 quarter horses Burgess raised on that
property, under 21 U.S.C. 853. Indictment at 58-61, United States v.
Rivera, et al., Cir. No. 85-361-A (N.D. Ga. Nov. 8, 1985). /3/ Several
months later, the government filed a separate complaint for civil
forfeiture of Burgess's ranch under 21 U.S.C. 881. Complaint at 1-4,
United States v. All That Tract or Parcel of Land Lying and Being in
Land Lot 201 of the First Land District of Newton County, Georgia, No.
C86-592-A (N.D. Ga. Mar. 14, 1986). /4/ The district court stayed the
civil forfeiture proceedings pending disposition of the outstanding
criminal charges.
Petitioners' criminal trial was scheduled for February 1986. On
November 12, 1985, Burgess's retained counsel, citing Burgess's
inability to pay their fees, filed a motion seeking the district court's
permission to withdraw. In addition, counsel asked the court to appoint
them, under the terms of the Criminal Justice Act, 18 U.S.C. 3006A, to
represent Burgess, or to appoint other counsel to do so. 89-6266 Pet.
App. 10-14. The district court granted the motion to withdraw and,
under the CJA, appointed another attorney to represent Burgess. Id. at
15-16. Burgess, without further objection, proceeded to trial with that
attorney.
2. The evidence at trial, which included many secretly tape-recorded
conversations among the various defendants, showed that petitioners
Rivera and Burgess participated in a large-scale heroin and distribution
operation in Georgia. Rivera was the primary source of high purity
heroin and cocaine distributed through two networks. Burgess, Rivera's
neighbor in Covington, supervised one of those distribution networks
directly from his horse ranch. Co-defendant Jessie Davis oversaw the
second distribution network from the convenience store she operated in
downtown Atlanta. Each distribution network relied on dealers, who then
"cut" and sold the narcotics to individual users. See Pet. App. 3a-4a;
Gov't C.A. Br. 5-48.
At trial, the government sought to introduce into evidence a
five-page ledger seized during a search of Rivera's residence. That
ledger, having headings such as "date," "quantity," "gave," "owed," and
"person," recorded various narcotics transactions that, according to the
government's expert witness, contained one entry in Rivera's
handwriting. /5/ Rivera objected on the ground that the ledger, except
for the entry allegedly written by him, was inadmissible hearsay. The
district court admitted the entire ledger into evidence, concluding that
that document "did not constitute inadmissible hearsay because the entry
written by Rivera was an admission and the other entries were * * *
adoptive admissions." Pet. App. 5a.
3. After the return of the jury's general verdict, the district court
submitted to the jury the government's criminal forfeiture claims with
respect to Burgess's ranch, Mercedes Benz, and quarter horses. /6/ The
jury found only Burgess's 27 quarter horses forfeitable and the court
therefore ordered those horses forfeited to the United States. See
89-6266 Pet. App. 17. /7/
4. The court of appeals affirmed. Pet. App. 1a-46a. In the court of
appeals, Burgess argued that the forfeiture allegation under 21 U.S.C.
853 charged in the indictment violated the Due Process Clause and
otherwise interfered with his Sixth Amendment right to counsel. See
Pet. C.A. Br. 10-28. The court rejected that contention without
comment. /8/
Rivera, on the other hand, contended that the district court
erroneously admitted into evidence the ledger recording various
narcotics transactions that contained one entry in his handwriting. The
court of appeals noted that Rivera "concedes that the entry written by
him was properly introduced into evidence as an admission by a party
opponent under Fed. R. Evid. 801(d)(2)," and that Rivera "does not
question the authenticity of the ledger under Fed. R. Evid. 901." Pet.
App. 5a. As a result, the court "assume(d) that the ledger is what it
seems to be: a record of heroin sales to various individuals." Ibid.
The court then found that the "ledger was not introduced * * * to
prove the particulars of (its) contents, * * * but instead to
demonstrate the existence of a series of heroin sales in which Rivera
participated." Pet. App. 6a (internal quotation marks and citation
omitted). /9/ And the court analogized this case to one in which the
"defendant's financial statement is introduced not to prove that he made
a deposit or withdrawal of a specified amount on a particular date, but
rather to demonstrate the existence of the defendant's bank account."
Ibid. (citing Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253, 1260
(11th Cir. 1983)). The court therefore held that "the ledger was not
hearsay and that it was admissible to prove Rivera's involvement in the
heroin conspiracy." Ibid.
The court of appeals also rejected petitioner Rivera's claim that the
government had not presented sufficient evidence to support his
conviction on five counts charging him with possessing heroin with
intent to distribute it, in violation of 21 U.S.C. 841(a)(1). The court
determined, after reviewing the record, "that the evidence in support of
these counts -- tape-recorded telephone conversations -- was sufficient
to support a conviction even though no drugs pertaining to these counts
were seized." Pet. App. 7a. /10/
1. Petitioner Rivera first renews his contention (Pet. 6-9) that the
district court erroneously admitted into evidence a ledger recording
various narcotics transactions that contained one entry in his
handwriting. Rivera does not challenge the authenticity of that
document; nor does he challenge the court of appeals' determination
that the "ledger was not introduced * * * to prove the particulars of
(its) contents, * * * but instead to demonstrate the existence of a
series of heroin sales in which Rivera participated." Pet. App. 6a
(internal quotation marks and citation omitted). In these
circumstances, the courts of appeals have uniformly concluded that such
a document (if relevant and authentic) is admissible because it is "not
offered to prove the truth of the facts asserted therein." United States
v. Wilson, 532 F.2d 641, 645 (8th Cir.), cert. denied, 429 U.S. 846
(1976); see United States v. Mahar, 801 F.2d 1477, 1491-1492 (6th Cir.
1986); United States v. Moscatiello, 771 F.2d 589, 604-605 (1st Cir.
1985), vacated on other grounds, 476 U.S. 1138 (1986); United States v.
Ordonez, 737 F.2d 793, 799 (9th Cir. 1984). Accordingly, the court of
appeals correctly upheld the admission of the ledger into evidence to
show Rivera's involvement with the narcotics enterprise.
Rivera errs in claiming (Pet. 7-8) that the court of appeals'
decision conflicts with United States v. Mahar, supra and United States
v. Ordonez, supra. In those decisions, the Sixth and Ninth Circuits
cited the basic principle outlined above, but concluded that documents
were improperly admitted into evidence after determining that the
government had introduced the documents for the express purpose of
proving the truth of their contents. See Mahar, 801 F.2d at 1492 ("it
appears from the government's use of the notes at trial that the
government did intend to convince the jury of the truth of the matter of
several statements in the notes"); Ordonez, 737 F.2d at 798-807; see
also United States v. Mouzin, 785 F.2d 682, 691-692 (9th Cir. 1986).
Here, in contrast, the record shows that the ledger was not admitted
into evidence for that purpose. For that reason, the decision below is
consistent with Mahar, Ordonez, and Mouzin. /11/
2. Rivera also contends (Pet. 9-10) that the district court violated
Federal Rule of Criminal Procedure 32(c)(3)(D) by not appending to the
presentence investigation report a "written record of (the court's)
findings and determinations" regarding disputed issues of fact contained
in that report. At sentencing, several defendants, including Rivera,
challenged the presentence investigation report's acceptance of the
government's "estimate" that "Rivera sold the equivalent of twelve
kilograms of street purity-heroin to the co-defendants in this case."
Pet. App. 13a. The district court, however, "specifically held that it
would utilize neither the Government's nor the defendants' estimation of
the amount of drugs involved in the case in determining the sentences
which it would hand down." Id. at 14a; see Gov't C.A. Br. 89-92. And
as a result of that decision, the district court evidently did not
attach to the presentence investigation report a written record of its
determination.
In these circumstances, the district court's apparent omission
violated the terms of Rule 32(c)(3)(D). Nevertheless, the record shows
that Rivera has not taken any steps to have the district court rectify
that oversing, and we know of no impediment to having that minor
omission corrected now. Moreover, even if that omission remains
uncorrected, it is unlikely that Rivera will suffer any adverse
consequences with respect to parole eligibility or institutional
assigments. The record of the sentencing is quite clear that the
district court did not credit the prosecutor's version of the quantity
of heroin involved. Rivera need only present a certified copy of the
transcript of that proceeding, if necessary, to the appropriate
officials in the Bureau of Prisons or the Parole Commission in order to
avoid having those officials mistakenly rely on that aspect of the
presentence investigation report.
3. Finally, Rivera renews his contention (Pet. 11-13) that the
government did not present sufficient evidence to support his conviction
on five counts charging him with possessing heroin with intent to
distribute it, in violation of 21 U.S.C. 841(a)(1). That claim is
meritless. With respect to those particular charges, the government
presented tape-recorded conversations between Rivera and his cohorts in
which Rivera stated, albeit in code, that he had heroin at this ranch
and sought to distribute it through the networks he had established.
See Pet. App. 7a; Gov't C.A. Br. 60-64. In these circumstances, the
court of appeals correctly held, the evidence was "sufficient to support
a conviction even though no drugs pertaining to these counts were
seized," particularly where, as here, independent evidence showed that
Rivera distributed large quantities of heroin from his residence during
the relevant time period. Pet. App. 7a. /12/
4. Petitioner Burgess renews his claim (Pet. 11-22) that the
forfeiture allegation under 21 U.S.C. 853 charged in the indictment
violated the Due Process Clause and otherwise interfered with his Sixth
Amendment right to counsel. /13/ This Court's recent decisions in
United States v. Monsanto, 109 S. Ct. 2657 (1989), and Caplin &
Drysdale, Chartered v. United States, 109 S. Ct. 2646 (1989), however,
foreclose that claim. Here, Burgess's property was properly subject
both to civil and criminal forfeiture proceedings under 21 U.S.C. 881
and 21 U.S.C. 853. The "relation back" doctrine thus restricted
Burgess's right to use property that was otherwise subject to
forfeiture. See 21 U.S.C. 853(c); 21 U.S.C. 881(h); Caplin &
Drysdale, 109 S. Ct. at 2653; Monsanto, 109 S. Ct. at 2665. And under
those decisions, the pertinent forfeiture provisions, as applied in this
case, do not violate the Due Process Clause or impermissibly interfere
with a criminal defendant's Sixth Amendment right to counsel. Caplin &
Drysdale, 109 S. Ct. at 2651-2656; Monsanto, 109 S. Ct. at 2665-2666.
/14/
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
SARA CRISCITELLI
RICHARD A. FRIEDMAN
Attorneys
FEBRUARY 1990
/1/ "Pet. App." refers to the appendix to the petition in No.
89-6226.
/2/ Rivera was also convicted on eight counts charging him with
possession of heroin with intent to distribute it, in violation of 21
U.S.C. 841(a)(1), and 13 counts charging him with use of a telephone to
facilitate the conspiracy to distribute heroine and cocaine, in
violation of 21 U.S.C. 843(b).
Burgess was also convicted on 13 counts charging him with possession
of heroin with intent to distribute it, in violation of 21 U.S.C.
841(a)(1), 24 counts charging him with use of a telephone to facilitate
the conspiracy to distribute heroine and cocaine, in violation of 21
U.S.C. 843(b), and one count charging him with possession of firearms by
a previously convicted felon, in violation of 18 U.S.C. App. 1202 (Supp.
II 1984).
/3/ The indictment also sought criminal forfeiture of Burgess's 1978
Mercedes, 1956 Chevrolet coupe, and 60 specified pieces of jewelry.
Indictment at 58-61, United States v. Rivera, et al., Cr. No. 85-361-A
(N.D. Ga. Nov. 8, 1985).
/4/ The civil complaint alleged two grounds for forfeiture: (1)
Burgess bought the ranch with proceeds of illegal narcotics
transactions, rendering that property forfeitable under 21 U.S.C.
881(a)(6); and (2) Burgess used or intended to use the ranch to
facilitate the commission of a narcotics violation, rendering that
property forfeitable under 21 U.S.C. 881(a)(7). Complaint at 2-3,
United States v. All That Tract or Parcel of Land Lying and Being in
Land Lot 201 of the First Land District of Newton County, Georgia, No.
C86-592-A (N.D. Ga. Mar. 14, 1986).
The government later filed another similar complaint for civil
forfeiture of many of the pieces of Burgess's jewelry identified in the
indictment (see note 3, supra). Complaint at 1-3, United States v.
Fifty-Six (56) Items of Assorted Jewelry, No. C86-2358-A (N.D. Ga. Nov.
3, 1986).
/5/ The government offered no proof with respect to the authorship of
any other entry in the ledger. Pet. App. 5a.
/6/ On the government's motion, the district court had dismissed the
criminal forfeiture claims against Burgess's Chevrolet and jewelry.
/7/ The government later completed the outstanding civil forfeiture
proceedings against Burgess's ranch and jewelry. In May 1989, the
district court ordered the jewelry forfeited to the United States.
Judgment Order 1-5, United States v. Fifty-Six (56) Items of Assorted
Jewelry, No. C86-2358-A (N.D. Ga. May 5, 1989). Burgess sought no
further review of that judgment.
In another civil proceeding, the district court ordered Burgess's
ranch forfeited to the United States. Judgement Order 1-2, United
States v. All That Tract or Parcel of Land (2015 Woodlawn Road), No.
89-8203 (11th Cir. Aug. 30, 1989). Burgess has not sought further
review of that order.
/8/ The court of appeals also rejected Burgess's claims that a
government witness's statement violated the principles set forth in
Bruton v. United States, 391 U.S. 123 (1968), that the government had
employed a cooperating witness under an impermissible contingent fee
arrangement, that the district court should have declared a mistrial
after a government witness alluded to Burgess's previous imprisonment,
and that the district court should have granted a severance. Pet. App.
8a-10a. Burgess has not sought further review of those claims.
In a separate opinion, the court of appeals also rejected Burgess's
contention that the district court erred in forfeiting his quarter
horses to the United States under 21 U.S.C. 853. 89-6266 Pet. App.
32-34. Burgess has not sought further review of that claim.
/9/ The court pointed out that the government, with the exception of
the one entry written by Rivera, had redacted the names of the
individuals listed under the "person" column of the ledger. Pet. App.
6a.
/10/ Lastly, the court of appeals rejected Rivera's claim that his
conviction on one Section 843(b) count could not stand where the jury
had acquitted the individual with whom he had the alleged conversation.
Pet. App. 7a-8a. Rivera has sought no further review of that claim.
/11/ Rivera suggests (Pet. 4, 7-8 & n.6) that the prosecutor's
comment in rebuttal argument shows that the government did use the
ledger as substantive proof of the narcotics transactions contained in
that document. That comment, however, which mentioned at random one
entry in the ledger, merely illustrated what the ledger purported to be
-- a record of narcotics transactions -- and did not seek to have the
jury infer that specific transactions in fact occurred based on the
ledger entries.
/12/ For that reason as well, Rivera errs in suggesting (Pet. 12-13)
that the court of appeals' decision may not be squared with United
States v. Lewis, 759 F.2d 1316 (8th Cir. 1985), and United States v.
Suarez, 487 F.2d 236 (5th Cir. 1983).
/13/ Burgess contends in passing (Pet. 18-19) that the district
court's refusal to appoint his previously retained counsel to represent
him under the Criminal Justice Act, see p. 4, supra, violated the Sixth
Amendment. The Sixth Amendment guarantees a criminal defendant the
assistance of counsel -- whether retained by the defendant or provided
at the government's expense. The Amendment, however, does not guarantee
that an indigent defendant has the right to appointed counsel of his own
choosing. The district court thus acted well within its authority under
the Criminal Justice Act -- and consistently with the Sixth Amendment --
in appointing counsel other than Burgess's previously retained counsel
to represent him. In any event, Burgess did not raise that issue before
the court of appeals, and has therefore not preserved it for review
before this Court.
/14/ Burgess suggests (e.g., Pet. 16) that the inclusion of the
forfeiture allegations in the indictment was tantamount to per se
prosecutorial misconduct. See Monsanto, 109 S. Ct. at 2657. The record
belies that claim, since the government successfully prosecuted criminal
and civil forfeiture actions against the principal items of Burgess's
real and personal property identified in the indictment. See p.3 and
notes 4, 7, supra.
Finally, Burgess contends (Pet. 20-21) that the forfeiture
allegations in the indictment violated 18 U.S.C. 3563 (1982 ed.), which
provided in pertinent part that "(n)o conviction or judgement shall work
corruption of blood or forfeiture of estate." That provision stemmed
from the Act of Apr. 30, 1790, ch. 9, Section 24, 1 Stat. 117, which
showed Congress's early rejection of "the traditional forfeiture of all
of a felon's property even if it had no connection with the crime."
United States v. Sandini, 816 F.2d 869, 873 (1987). That bar against
forfeiture of an "estate" unrelated to criminal activity, however, did
not apply to criminal forfeiture of property specifically acquired by
proceeds of criminal activity or used to facilitate such activity, as
Congress made plain in later enacting the forfeiture provisions in 21
U.S.C. 853 and 21 U.S.C. 881. In any event, Congress repealed Section
3563 effective as of November 1, 1986. See Pub. L. No. 98-473, Title
II, Section 212(a)(2), 98 Stat. 1987 (1984). The issue Burgess raises
therefore does not warrant further review by this Court.
JOHN FULLER, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6215
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eighth Circuit
Brief For The United States
The opinion of the court of appeals (Pet. App. 2-10) is reported at
887 F.2d 144.
The judgement of the court of appeals was entered on October 5, 1989.
The petition for a writ of certiorari was filed on December 4, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Whether the Missouri offense of second degree burglary is a
"violent felony" under the sentence enhancement provision of 18 U.S.C.
924(e)(1) and 924(e)(2)(B)(ii) (Supp. V. 1987).
2. Whether petitioner established a prima facie case of the
government's discriminatory use of peremptory challenges under Batson v.
Kentucky, 476 U.S. 79 (1986).
1. Petitioner was indicted in the Eastern District of Missouri on one
count of possession of a firearm by a previously convicted felon, in
violation of 18 U.S.C. 922(g)(1) (Count 1), and one count of possession
of an unregistered firearm, in violation of 26 U.S.C. 5681(d) (Count 2).
The indictment alleged that petitioner had two previous convictions for
second degree burglary under Missouri law, /1/ and one previous
conviction for robbery, thus subjecting him to an enhanced sentence of a
minimum term of 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp.
V 1987). /2/ Pet. App. 2-3, 9-10.
Before trial, petitioner filed a motion seeking dismissal of the
enhancement provision of Section 924(e)(1) in Count 1. Petitioner
contended that his burglary convictions were not proper predicate
offenses under that statute since the crimes did not involve actual or
potential injury to others. The district court rejected that argument,
concluding that
(w)hile the term burglary may be capable of a number of
definitions depending on the degree of the offense or the
applicable statutory provision or common law, the conspicuous
omission of any federal definition of burglary in Section 924(e)
strongly suggests that Congress intended the term to have the
meaning accorded to it by the laws of the jurisdiction in which
the defendant's conviction arose.
Pet. C.A. Br. Add. 8; see id. at 10.
2. During jury selection, the government used two of its six
peremptory challenges to strike black venire members. Petitioner, who
is black, used none of his 10 peremptory challenges to strike black
venire members. Three black venire members were ultimately sworn in as
jurors. Petitioner, however, objected to the panel, contending that the
government had used its peremptory challenges purposefully to exclude
black venire members, in violation of the Equal Protection Clause. The
district court denied that objection, concluding that petitioner had not
established a prima facie case of the government's discriminatory use of
peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986).
Pet. App. 3; Gov't C.A. Br. 10.
The jury convicted petitioner on both counts. The district court
later sentenced petitioner to an enhanced term of 15 years' imprisonment
under Section 924(e)(1) on Count 1, and a concurrent term of 10 years'
imprisonment on Count 2. Pet. App. 3.
3. The court of appeals affirmed. Pet. App. 2-10. In the court of
appeals, petitioner argued (Pet. C.A. Br. 13-16) that he had established
a prima facie case of discrimination under Batson v. Kentucky, supra,
because the government used two of its six peremptory challenges to
strike black venire members. Petitioner therefore contended that the
district court should have required the government to give race-neutral
explanations for those strikes. The court of appeals observed that
petitioner "relies solely on the exclusion of two out of five potential
black jurors, presenting no other evidence leading to an inference of
discrimination." Pet. App. 4. Since petitioner "point(ed) to no other
facts or circumstances that would support the inference of a prima facie
case," the court of appeals concluded that, under Batson, the district
court did not "err() in not requiring the government to go forward with
a neutral explanation." Id. at 5.
Petitioner also argued (Pet. C.A. Br. 21-30) that Section 924(e) did
not apply to his state burglary convictions because those offenses did
not involve a serious potential risk of physical injury to another. The
court of appeals rejected that argument, citing its recent decision in
United States v. Portwood, 857 F.2d 1221 (8th Cir. 1988), cert. denied,
109 S. Ct. 2073 (1989). In Portwood, the court of appeals had addressed
and rejected a claim identical to petitioner's, holding that Section
924(e) applies to any felony defined as "burglary" under state law (857
F.2d at 1223-1224). Pet. App. 9-10. /3/
1. Petitioner contends (Pet. 8-16) that burglary is a "violent
felony" under the sentence enhancement provision of 18 U.S.C. 924(e)(1)
and 924 (e)(2)(B)(ii) only where the particular burglary involves
conduct that presents a serious risk of physical injury to another, or
otherwise satisfies the common law definition of the offense. In Taylor
v. United States, No. 88-7194, as petitioner points out, Pet. 15-16,
this Court has granted certiorari to resolve the conflict among the
circuits concerning the meaning of the term "burglary" under Section
924(e)(2)(B) (ii). In our submission to this Court in Taylor, /4/ we
have described the conflicting decisions among the courts of appeals and
have explained that the statutory reference to burglary is not limited
either to common law burglary or to burglaries that pose a potential
risk of physical injury. To the contrary, even though Congress failed
to include an express definition of burglary in its most recent
amendments to Section 924(e), Congress retained the generic definition
of burglary that was contained in the predecessor Armed Career Criminal
Act of 1984, 18 U.S.C. App. 1202(c)(9) (Supp. II 1984), a definition
that reflects the prevailing modern view of the offense of burglary as
defined in federal and state law. That interpretation is consistent
with the language, legislative history, and purposes of the 1986
amendments to the Armed Career Criminal Act of 1984.
Petitioner's Missouri burglary convictions therefore qualify as
predicate crimes under Section 924(e)(2)(B)(ii), since those state
offenses, by definition, require entering a building belonging to
another for the purpose of committing a state or federal crime. See
note 1, supra. Nevertheless, in these circumstances, we believe that
the Court should hold the instant petition with respect to the first
question presented pending the disposition of Taylor v. United States,
No. 88-7194.
2. Petitioner also renews his contention (Pet. 17-19) that he had
established a prima facie case of discrimination under Batson v.
Kentucky, supra, because the government used two of its six peremptory
challenges to strike black venire members. No court of appeals has held
that the government's use of a slightly higher percentage of peremptory
challenges against minority venire members, standing alone, establishes
a prima facie case of discrimination under Batson. Rather, the circuits
have followed this Court's directive that a defendant, in order to
establish a prima facie case, must raise an inference, based on all of
the available facts, that the government used its challenges in an
intentionally discriminatory manner:
In deciding whether the defendant has made the requisite
showing, the trial court should consider all relevant
circumstances. For example, a "pattern" of strikes against black
jurors in the particular venire might give rise to an inference of
discrimination. Similarly, the prosecutor's questions and
statements during voir dire examination and in exercising his
challenges may support or refute an inference of discriminatory
purpose.
Batson, 476 U.S. at 96-97. And those reviewing courts have been mindful
of this Court's expression of confidence in trial judges' ability "to
decide if the circumstances concerning the prosecutor's use of
peremptory challenges create() a prima facie case of discrimination
against black jurors." Id. at 97; see id. at 98 n.21.
Accordingly, the Eighth Circuit and other courts of appeals have not
hesitated to find that a defendant had established a prima facie case of
intentional discrimination under Batson where the government had used
its peremptory challenges to strike a substantial percentage of minority
venire members. See, e.g., United States v. Battle, 836 F.2d 1084,
1085-1086 (8th Cir. 1987) (government used five of its six peremptory
challenges to strike black venire members); United States v. Chalen,
812 F.2d 1302, 1312-1314 (10th Cir. 1987) (government used peremptory
challenges to strike only remaining Native American venire member),
cert. denied, 109 S. Ct. 534 (1988). But where, as here, the government
challenged only a small percentage of minority venire members, and a
significant number of minority members were sworn in as jurors, courts
of appeals have correctly declined to second-guess a trial judge's
determination that the defendant had not established a prima facie case
of discrimination. See, e.g., United States v. Rogers, 850 F.2d 435,
437 (9th Cir. 1988) (government used three of seven peremptory
challenges to strike black venire members; jury included two black
members and one black alternate); United States v. Lewis, 837 F.2d 415,
416-417 (9th Cir.) (government used peremptory challenges to strike
eight white venire members and one of two black venire members), cert.
denied, 109 S. Ct. 304 (1988). In these circumstances, petitioner's
fact-specific claim warrants no further review by this Court.
The petition for a writ of certiorari should be denied, except as to
the first question presented in the petition. As to the first question,
the petition should be held pending the disposition of Taylor v. United
States, No. 88-7194, and disposed of as appropriate in light of that
decision.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
ANDREW LEVCHUK
Attorney
FEBRUARY 1990
/1/ In December 1975 and in November 1980, petitioner was convicted
of second degree burglary in the Missouri state courts. See Pet. 9. At
the time he committed those crimes, second degree burglary in Missouri
consisted of several distinct offenses, but generally involved unlawful
entry into a building with the intent to commit a crime. See Mo. Rev.
Stat. Sections 560.045, 560.050, 560.055, 560.060, 560.070, 560.075,
560.080 (1969) (repealed 1979). Petitioner conceded that his two
convictions involved entries into buildings under Mo. Rev. Stat.
560.045. See Pet. 9-10; Pet. C.A. Br. 22-23.
In 1979, Missouri repealed the separate definitions of second degree
burglary. Missouri law currently defines that offense as "knowingly
enter(ing) unlawfully or knowingly remain(ing) unlawfully in a building
or inhabitable structure for the purpose of committing a crime therein."
Mo. Rev. Stat. Section 569.170 (1986).
/2/ The sentence enhancement provision of 18 U.S.C. 924(e)(1) applies
to previously convicted felons who possess or receive a firearm in
violation of 18 U.S.C. 922(g). Title 18, United States Code, Section
924(e)(1), provides in pertinent part:
In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court referred to
in section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, such person shall be fined not more
than $25,000 and imprisoned not less than fifteen years * * *.
Title 18, United States Code, Section 922(g)(1), refers to any
"convict(ion) in any court of a crime punishable by imprisonment for a
term exceeding one year."
Title 18, United States Code, Section 924(e)(2)(B), provides:
(T)he term "violent felony" means any crime punishable by
imprisonment for a term exceeding one year that -- (i) has as an
element the use, attempted use, or threatened use of physical
force against the person of another; or (ii) is burglary, arson,
or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury
to another.
/3/ The court of appeals also rejected petitioner's claims that the
district court erred in admitting certain drug paraphernalia into
evidence, Pet. App. 5-7, that his court-appointed attorney rendered
ineffective assistance, id. at 7-8, and that the Sentencing Reform Act
of 1984 was unconstitutional, id. at 8-9. Petitioner has not sought
further review of those claims.
/4/ See U.S. Br. 11-37. We have provided a copy of our brief in
Taylor to counsel for petitioner in this case.
RICARDO GARCIA, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6186
In The Supreme Court Of The United States
October Term, 1989
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 order of the court of appeals (Pet. App.) affirming petitioner's
conviction is reported at 888 F.2d 1395 (Table).
The judgment of the court of appeals was entered on September 28,
1989. The petition for a writ of certiorari was filed on November 27,
1989. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
1. Whether the district court abused its discretion when it precluded
a linguistics expert from testifying as a defense witness that
petitioner spoke only Spanish, not English.
2. Whether the district court erred in refusing to compel the
government to disclose the identity of a confidential informant.
3. Whether the district court abused its discretion when it admitted
testimony concerning references to other criminal conduct made by
petitioner during conversation with an undercover agent.
After a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted of conspiracy to
distribute at least 500 grams of cocaine, in violation of 21 U.S.C. 846,
and of distribution of at least 500 grams of cocaine, in violation of 21
U.S.C. 841(a)(1) and 18 U.S.C. 2. /1/ Petitioner was sentenced to
concurrent terms of five years' imprisonment and to a four-year term of
supervised release. The court of appeals affirmed without opinion.
Pet. App.
1. On August 11, 1987, DEA undercover agent Peter Sarron -- posing as
"Pete," an Italian from New York -- was introduced to petitioner and
petitioner's son-in-law, Reinaldo Farina, by a confidential informant.
Petitioner, speaking in English, remarked that he had many good Italian
friends and that Italians were "very good people to do business with."
Tr. 23-28, 33-34.
Agent Sarron said he understood that petitioner had some "things"
that he, Sarron, was interested in buying. Petitioner responded
affirmatively, looked at Farina, and said, "We have a very good friend
who has 27 of those things you want." Agent Sarron said he wanted twenty
of those "things," and petitioner replied that he would be able to get
them from a friend who had a shop nearby. Tr. 33-34. However,
petitioner rebuffed Agent Sarron's suggestion that they make a deal for
the delivery of twenty kilograms of cocaine. Instead, petitioner stated
that the initial transaction should involve only five kilograms, and
translated Farina's comment that they did not know Agent Sarron very
well. Tr. 43. When Agent Sarron complained about the quoted price of
$17,500 for "each one of these (things)," petitioner spoke in Spanish to
Farina and then told Agent Sarron that he would have to negotiate the
price with "(their) man." Tr. 35.
Farina decided to telephone his friend, the source of the cocaine.
Meanwhile, Agent Sarron said that he made a lot of money selling
marijuana in Texas and that he imported marijuana from Colombia on his
shrimp boats. Petitioner replied that he had lived in the Texas and
Louisiana area, and that he had frequently worked as a captain on boats
used to transport marijuana from Colombia to the United States. Tr.
43-44. Petitioner asked if he could be one of Agent Sarron's boat
captains and displayed his bare feet to back up his claim that he had
gone barefoot on boats for many days. Tr. 46-47. Farina then returned
from making the telephone call; however, the transaction had to be
postponed when the source of the cocaine failed to arrive at the meeting
place as expected. Tr. 48-49. /2/
The next day, Agent Sarron and the informant returned to the
restaurant where they had met petitioner and Farina. After talking
briefly with them, Agent Sarron met with Carlos Fernandez, the source of
the cocaine. Tr. 50-52. They negotiated over the price for twenty
kilograms; Fernandez, Agent Sarron, and the confidential informant then
went next door to Fernandez's store. Co-defendant Sosa eventually
arrived with the cocaine. But Fernandez, commenting that there were too
many police in the area, then suggested that they go to his brother's
house instead. Tr. 53-61.
Sosa removed a brown bag containing 4.996 kilograms of cocaine from
the trunk of his car and took it into Agent Sarron's car. Sosa, a woman
accompanying him, the confidential informant, and Agent Sarron followed
Fernandez's car to a house a few miles away. Tr. 60-61, 182. There,
after testing and approving the cocaine, Agent Sarron gave the informant
the keys to the trunk of his car, purportedly to get the money for the
cocaine. The informant went outside as arranged to signal the
surveilling agents; the police immediately arrested the occupants of
the house. Tr. 76-78, 80. When he was arrested, petitioner, pointing
at Agent Sarron, said in English, "You should arrest him. * * * He is
the marijuana smuggler." Tr. 85-86, 156-175.
2. At trial, petitioner testified in his own defense through an
interpreter. He acknowledged that he had lived in the United States for
almost eight years, but denied that he couls speak English. /3/ Tr.
365-366. He claimed that he had spoken to Agent Sarron through two
interpreters, and that they had discussed fishing, not drugs. Tr. 363.
He denied introducing Agent Sarron or the confidential informant to
Carlos Fernandez. Tr. 366.
Petitioner sought to call a linguistics expert, Professor R. Scott
Baldwin, to support his claim that he could not speak English. Tr.
291-312. In a hearing outside the presence of the jury, Baldwin
testified that he had administered a battery of tests to petitioner to
determine his proficiency in the English language. Tr. 294-295. Based
on the results, Baldwin believed that petitioner's English proficiency
was "extremely primitive" and that petitioner could not have engaged in
the conversations attributed to him by Agent Sarron. Tr. 298, 307-308.
On cross-examination, however, Baldwin admitted that he had never done
any studies on how to determine whether someone was faking ignorance of
a language, and that he was not aware of any such studies. He also
admitted that the English proficiency tests he had given petitioner
after his arrest were not designed to measure deception, and that he had
quickly devised his own means of measuring it by scrambling the
components of the tests so as to alter their expected progression from
simple to difficult. Tr. 302; see also Tr. 296-297.
The district court found that Baldwin's testimony would not assist
the jury in determining whether petitioner spoke English because the
tests that Baldwin had administered could not measure the language
skills of a person who feigned a lack of proficiency. Therefore, the
court disallowed the testimony. Tr. 310.
In response to an objection at trial, the district court also
determined that Agent Sarron's testimony about his conversation with
petitioner concerning marijuana smuggling was admissible. Tr. 44-46.
The district court cautioned the jury that the testimony applied "(i)n
so far as knowledge and intent" on the part of petitioner, not his
co-defendants. Tr. 44.
1. Petitioner renews his contention (Pet. 14-19) that the district
court erred when it precluded a linguistics expert from testifying that,
in his opinion, petitioner could not speak English. This claim is
without merit.
It is well settled that a trial judge has broad discretion to exclude
or admit expert testimony, and his ruling will not be reversed on appeal
unless it is manifestly erroneous. Salem v. United States Lines Co.,
370 U.S. 31, 35 (1962). As petitioner concedes (Pet. 17), the courts of
appeals have generally upheld the exclusion of expert testimony in the
field of linguistics. See, e.g., United States v. Aguon, 851 F.2d 1158,
1171 (9th Cir. 1988) (en banc); United States v. DeLuna, 763 F.2d 897,
912 (8th Cir.), cert. denied, 474 U.S. 980 (1985); United States v.
Schmidt, 711 F.2d 595, 598-599 (5th Cir. 1983), cert. denied, 464 U.S.
1041 (1984); see also United States v. Hearst, 563 F.2d 1331, 1349-1350
(9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978). The same
conclusion is warranted here.
Dr. Baldwin tested petitioner's English skills only after petitioner
had been arrested, i.e., only after he had a motive to feign an
inability to speak the language. Furthermore, as Dr. Baldwin
acknowledged, he had never done any studies on how to detect such
deception; nor was he aware of any such studies. The proficiency tests
he gave petitioner did not measure deception, and there is no indication
that his makeshift modification of the tests was sufficient to transform
them into reliable indicators of petitioner's truthfulness.
Whether or not petitioner spoke English was essentially a credibility
issue that the jury was fully capable of deciding based on its own
commonsense evaluation of the parties' testimony. See, e.g., United
States v. Cipriano, 493 F.2d 26 (5th Cir. 1974). At best, Baldwin's
testimony would have wasted time and been cumulative, since petitioner
and his daughter both testified that he could not speak English --
testimony that was underscored by the fact that petitioner testified
through an interpreter. At worst, Baldwin's testimony might have
confused and misled the jury. Thus, even if relevant, it was
excludable. Fed. R. Evid. 403. Under these circumstances, the district
court acted well within its discretion in disallowing the testimony.
/4/
3. Prior to trial, petitioner moved the district court to order the
government to disclose the identity of the confidential informant,
claiming that the informant's testimony was needed in order to
contradict the testimony of Agent Sarron and because the informant had
acted as an interpreter for petitioner. Tr. 10-11, 13-14. Based upon
the government's proffer that disclosure would pose a serious danger to
the informant, /5/ and that interviews of the informant revealed no
conflict between his testimony and Agent Sarron's, the district court
denied petitioner's motion. Tr. 11, 13-14, 190.
After failing to persuade the court of appeals that the district
court erred, petitioner renews his contention here. Pet. 19-23. The
trial court, however, properly weighed the factors set forth in Roviaro
v. United States, 353 U.S. 53 (1957), in determining that disclosure of
the identity of the confidential informant was not required. There is
no need for further review of that fact-specific determination.
In Roviaro, this Court noted that there is "no fixed rule" as to when
disclosure of the identity of a confidential informant is required. 353
U.S. at 62. Rather, "the problem is one that calls for balancing the
public interest in protecting the flow of information against the
individual's right to prepare his defense." Ibid. That balance requires
a trial court to assess "the crime charged, the possible defenses, the
possible significance of the informer's testimony, and other relevant
factors." Ibid; see also McCray v. Illinois, 386 U.S. 300, 311 & n.11
(1967) (noting that Roviaro eschewed "absolute rule" requiring
disclosure and established "the case-by-case approach").
In Roviaro, disclosure of the identity of the confidential informant
was required because the informant had been "the sole participant, other
than the accused, in the transaction charged" -- the illegal
transportation of narcotics. 353 U.S. at 64. The two had been "alone
and unobserved during the crucial occurrence for which (the defendant)
was indicted." Ibid. The informant was the defendant's "one material
witness"; he might have been in a position to know whether the
defendant had been entrapped, or to raise doubt as to the defendant's
identity. Ibid. Moreover, the informant was the only witness whose
testimony might have shown that the defendant did not know that the
package he was carrying contained narcotics. Ibid.
In this case, by contrast, there is no reason to believe that the
informant's testimony would have been essential, or even helpful, to
petitioner's defense. The record shows that the informant simply
arranged and was present for the meetings between petitioner, his
co-defendants, and Agent Sarron. The informant did some translating for
Agent Sarron, as did petitioner himself, but there is no evidence that
the informant was involved in the substantive negotiations over the
price, amount, or delivery of the drugs. To the contrary, the
government proffered, based on its interviews with him, that the
informant's testimony was not inconsistent with Agent Sarron's testimony
and, in fact, tended to incriminate petitioner. Tr. 11. /6/
Petitioner presented his defense -- that he did not speak English and
did not discuss drugs with Agent Sarron -- through his own testimony and
his daughter's. Consistently with his co-defendant Farina's testimony
that Farina had not negotiated the drug deal and did not know of any
involvement by petitioner (Tr. 352-353, 357), petitioner testified that
he did not introduce Agent Sarron to Carlos Fernandez or broker the drug
deal. Thus, even assuming the unlikely possibility that the informant's
testimony would have corroborated petitioner's story, the prospect of
eliciting merely cumulative testimony from an informant does not justify
disclosure of his identity. /7/ See, e.g., United States v. Sai Keung
Wong, 886 F.2d 252, 256 (9th Cir. 1989); United States v. Toombs, 497
F.2d 88, 93-94 (5th Cir. 1974). That is especially the case here, where
any need for disclosure was outweighed by the danger to which disclosure
would have exposed the informant whose house, shortly after the arrest
of the defendants, had been cased by a person with an extensive arrest
record including conspiracy to murder an informant.
In short, given that the safety of the informant had been threatened
and that his testimony was of dubious worth to petitioner, the trial
court did not abuse its discretion in denying the motion to disclose his
identity.
3. Petitioner lastly argues (Pet. 23-29) that the testimony
concerning his prior importation of marijuana from Colombia and his
desire to captain one of Agent Sarron's smuggling boats was inadmissible
under Fed. R. Evid. 404(b), which bars "other crimes" evidence when
offered to prove criminal propensity. This fact-bound contention that
the district court abused its discretion in admitting testimony does not
warrant review by this Court.
The testimony concerned statements that petitioner himself had made
about similar drug-related matters during his drug negotiations with
Agent Sarron. Statements do not constitute "other crimes" evidence
within the meaning of Rule 404(b), if they concern offenses inextricably
intertwined with the evidence of the charged offense or if they are
necessary to complete the story of a crime at trial. See, e.g., United
States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983). /8/ These
statements were clearly of such a kind, and were therefore admissible.
Even if Rule 404(b) did apply to the statements, it did not bar their
admission. See Huddleston v. United States, 108 S.Ct. 1496, 1500 (1988)
(if offered for a proper purpose, "other crimes" evidence "is subject
only to general strictures limiting admissibility such as Rules 402 and
403"). Rule 404(b) specifically states that "other crimes" evidence is
admissible to prove, inter alia, intent and knowledge. Cases such as
this one, where a defendant concedes presence but insists that there is
an innocent explanation for his conduct, are classic examples of
situations in which "other crimes" evidence is admissible to show intent
and knowledge. See, e.g., United States v. Hitsman, 604 F.2d 443, 448
(5th Cir. 1979) ("Evidence of prior drug dealings is highly probative of
intent to distribute a controlled substance, as well as involvement in a
conspiracy."); United States v. Dunbar, 614 F.2d 39, 42 (5th Cir.)
(evidence of conversation between defendant and undercover agent about
possible future drug transactions admissible in prosecution for
distribution of controlled substances), cert. denied, 447 U.S. 926
(1980).
The statements made by petitioner revealed the developing trust
between a drug seller and a potential buyer. They also contradicted
petitioner's claims that he and Agent Sarron had discussed fishing, not
drugs, and had done so through two interpreters, not in English.
Further, they demonstrated petitioner's familiarity with drug
trafficking. See, e.g., Hitsman, 604 F.2d at 488; Dunbar, 614 F.2d at
42. Thus, they referred to crimes similar to those charged, they were
relevant (as required by Fed. R. Evid. 402), and they were offered for a
proper purpose. /9/
The statements also passed muster under Fed. R. Evid. 403, since
their probative value was not substantially outweighed by the danger of
unfair prejudice. Petitioner's arguments (Pet. 27-28) on this score
prove too much; they would bar the admission of any narcotics-related
"other crimes" evidence altogether. The testimony here did not concern
a heinous crime likely to incite the jury to an irrational decision.
Nor did it suggest an improper basis, such as criminal propensity, for
the jury's verdict. In any event, the district court cautioned the jury
that they were to consider the testimony only insofar as it related to
petitioner's knowledge and intent; the jury thus knew not to give the
statements undue weight. In this context, the statements were properly
admitted.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
VICKI S. MARANI
Attorney
FEBRUARY 1990
/1/ Petitioner was tried with co-defendants Reinaldo Farina, Jairo
Sosa, and Ricardo Fernandez. Farina and Sosa were found guilty on both
counts; Fernandez was found not guilty of conspiracy but guilty of
distribution. Another co-defendant, Carlos Fernandez, pleaded guilty to
both charges.
Co-defendant Sosa filed a petition for certiorari (No. 89-5822)
raising the same issue as petitioner with respect to disclosure of the
identity of the confidential informant. That petition was denied on
January 22, 1990.
/2/ During the above discussion, petitioner and the confidential
informant translated for Farina, who did not speak English, and for
Agent Sarron, who did not speak Spanish. Petitioner spoke English well,
and frequently translated Farina's Spanish into English for Agent
Sarron. See e.g., Tr. 41-43, 90, 112, 114, 141-143. For example, at
one point in the conversation, Farina said, partly in Spanish and partly
in English, "Perico (a Spanish slang word for cocaine), Colombia. No
Miami." Petitioner explained that Farina meant that the cocaine was
produced in Colombia and not Miami. Tr. 41.
/3/ Petitioner's daughter, testifying as a witness for her husband,
Farina, also denied that petitioner could speak English. Tr. 317.
/4/ Despite petitioner's contention to the contrary (Pet. 18), United
States v. Villalta, 662 F.2d 1205 (5th Cir. 1981), cert. denied, 456
U.S. 916 (1982) is not on point. That decision dealt with the
competency of an informant to testify, not with the admissibility of
testimony by a linguistics expert. In Villalta, the court of appeals
held that the jury would be able to judge the credibility of a witness
claimed to have acted as a translator for the Spanish-speaking
defendant; the court noted only that expert testimony on the witness's
ability would also be presented to the jury.
/5/ According to information received by the government, the
informant's house had already been "cased" by Daniel Garcia, a relative
of some of the defendants. Daniel Garcia had an extensive arrest
record, including an arrest for conspiracy to murder an informant. Tr.
11-12, 201.
/6/ Petitioner did not request the district court to conduct in
camera proceedings for disclosure of the informant's identity or for
production of the informant himself. Gov't C.A. Br. 29. Thus,
petitioner's claim that the district court should have held a hearing on
the matter (Pet. 20, 22-23) must be deemed waived. In any event, the
district court did fully hear petitioner's claims and the government's
reasons for nondisclosure, and exercised its discretion in light of that
information. Tr. 10-14, 190.
/7/ Petitioner claims (Pet. 21-22) that the testimony of the
informant was necessary because Agent Sarron inconsistently attributed
statements first to Farina and then to petitioner. However, Agent
Sarron explained at trial that petitioner was translating for Farina --
so both co-defendants repeated the same statements in different
languages. See Tr. 112, 143.
/8/ See also, e.g., United States v. Tripp, 782 F.2d 38, 41 (6th
Cir.) (card games within time frame of a gambling conspiracy were not
"other acts" subject to Rule 404(b)), cert. denied, 475 U.S. 1128
(1986); United States v. DeLuna, 763 F.2d 897, 915 (8th Cir.) ("The
rule limiting admissibility of uncharged misconduct does not shield an
accused from the reception of evidence that he boasted of his past
experience in crime in order to reassure a prospective vender or
co-worker of his skill and reliability."), cert. denied, 474 U.S. 980
(1985); United States v. Tunsil, 672 F.2d 879, 880-881 (11th Cir.)
(defendant's statement to agent that he had engaged in a drug deal the
day before his arrest was admissible on res gestae theory, so long as
not unduly prejudicial under Fed. R. Evid. 403), cert. denied, 459 U.S.
850 (1982); United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979)
(act is not "extrinsic" if the evidence used to prove it and the
evidence used to prove the offense charged are "inextricably
intertwined").
/9/ Petitioner does not contest that the jury could have made a
finding from the evidence presented that he had committed the extrinsic
offense.
FRANCISCA ROSA VELASQUEZ, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6156
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit
Brief For The United States In Opposition
The opinion of the court of appeals (Pet. App. A1-A22) is reported at
885 F.2d 1076. The opinion of the court of appeals in a companion case
(Pet. App. A23-A28) is reported at 885 F.2d 1094.
The judgement of the court of appeals was entered on September 1,
1989. A petition for rehearing was denied on September 28, 1989. The
petition for a writ of certiorari was filed on November 27, 1989. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Whether the district court's denial of a co-defendant's motion for
judgement of acquittal resulted in a violation of petitioner's
constitutional right to subpoena the testimony of a co-defendant.
2. Whether there was probable cause to arrest petitioner at the time
she was detained.
3. Whether petitioner validly waived her rights under Miranda v.
Arizona, 384 U.S. 436 (1966).
After a jury trial in the United States District Court for the
District of Delaware, petitioner was convicted of possession of more
than five kilograms of cocaine with intent to distribute, in violation
of 21 U.S.C. 841(a)(1) (Count 1), and of conspiracy to possess more than
five kilograms of cocaine with intent to distribute, in violation of 21
U.S.C. 846 (Count 2). The district court sentenced petitioner to terms
of 151 months' imprisonment on each count, to be served concurrently.
The court of appeals, with one judge dissenting, affirmed petitioner's
conviction on the possession count, but reversed the conviction on the
conspiracy count. The district court then resentenced petitioner to a
term of 151 months' imprisonment on Count 1, to be followed by a
five-year period of supervised release.
1. At 11:10 a.m. on February 8, 1988, petitioner and a companion,
Ivan Terselich, were driving a 1982 Ford with Florida license plates
northbound on Interstate 95 in Delaware. After clocking the car at 62
m.p.h. in a 55 m.p.h. zone, Corporal Robert Durnan of the Delaware State
Police pulled the car over. At Durnan's request, petitioner, who had
been driving, identified herself and produced the Ford's registration
card, which stated that the car's owner was Javier Perez of Miami,
Florida. After petitioner got out of the Ford, Durnan explained to her
that she was being stopped for speeding. In response to Durnan's
questions, petitioner said she was traveling from Miami to Long Island
for a vacation with her husband, who was seated in the car. Petitioner
said that the Ford belonged to her cousin, but could not name the
cousin. Petitioner was nervous and stuttered. Pet. App. A2.
Durnan then spoke with Terselich, who was still sitting in the Ford.
Terselich said that petitioner was not his wife, that he was traveling
from Miami to New York on business, and that the car belonged to a
friend named Lopez. Terselich also appeared nervous. Pet. App. A2.
Durnan asked petitioner to accompany him into his patrol car. Once
they were seated in the car, Durnan asked petitioner whether she had
contraband in the Ford. She said she did not. Durnan asked for
permission to search the Ford. Petitioner said, "Yes, you can search."
Because Durnan detected a Spanish accent in petitioner's speech, he
produced a written, Spanish-language "Consent to Search" form. He
explained the form to petitioner, and she examined and signed it. Pet.
App. A2.
Returning to the Ford, Durnan asked Terselich to step out of the car.
After searching the passenger compartment, Durnan opened the trunk.
Almost immediately, he recognized a false floor, which led him to
suspect that the trunk contained contraband in a secret compartment. It
appeared to Durnan that he could not reach that compartment without
removing the Ford's gas tank. Pet. App. A2-A3. Because he did not have
the tools or facilities to do so, at about 11:20 a.m. he advised
petitioner and Terselich that they were being detained under Delaware's
two-hour detention statute, Del. Code Ann. tit. 11, Section 1902. The
two were handcuffed and then transported, along with the Ford, to a
state police station. At the station, petitioner was placed in a
holding room near the main desk. Durnan then searched beneath the floor
of the Ford's trunk and found a quantity of block packages. Upon closer
inspection and testing, the 21 packages were found to contain a total of
21 kilograms of cocaine. Pet. App. A3.
After discovering the cocaine, Durnan read petitioner a set of
English-language Miranda warnings, stopping after each sentence to ask
if she understood. Petitioner replied affirmatively to each question.
Durnan also provided petitioner with a card containing Spanish-language
Miranda warnings, which petitioner held and appeared to read. Durnan
then contacted Agent William Glanz of the Drug Enforcement Agency (DEA).
Pet. App. A3.
Glanz arrived at the police station between 12:30 and 1:00 p.m. He
identified himself to petitioner as a DEA agent and said he wanted to
talk to her. Petitioner said that she did not want to be questioned and
wanted to speak with a lawyer. The conversation ended. Pet. App. A3.
One half hour later, when Durnan went to take petitioner to court for
a bail hearing, she told Durnan she wanted to speak to Glanz.
Thereafter, petitioner asked Glanz, "What is going to happen?" Glanz
explained that a magistrate would set her bail, and that the mandatory
minimum sentence for possession of more than five kilograms of cocaine
was 10 years. Petitioner asked what would happen to Terselich.
Believing that petitioner was initiating a conversation about the
investigation and was thereby waiving the Miranda rights she had
previously invoked, Glanz told her, falsely, that Terselich had been
released after revealing to the authorities that the cocaine was
petitioner's and that she was being paid $5,000 to drive the drugs
north. /1/ Glanz asked her if she wanted to give Terselich her
belongings, because he would be traveling south that evening. Pet. App.
A4.
When petitioner did not respond to these statements, Glanz asked if
she would like to tell her version of the story. She asked what he
wanted to know. Eventually Glanz asked how petitioner came to be
driving a car containing a large amount of cocaine. She said that she
had been paid $10,000 to drive the drugs north, was afraid to make the
trip alone, and was paying Terselich $5,000 to accompany her. In
response to a question about Terselich's knowledge of the drugs, she
shook her head several times and said, "This is all my fault, this is
all my fault." Glanz asked petitioner what she planned to do with the
drugs when she reached New York. She said she was to call Miami to
receive a New York phone number, and was then to call the New York
number to arrange to transfer the drugs. Pet. App. A4.
2. In the district court, petitioner moved to suppress the cocaine
and her statements to Glanz. The district court, finding that
petitioner lacked standing to contest Durnan's search of the car and, in
any event, had voluntarily consented to the search (Pet. App. A36),
denied the motion to suppress the cocaine. /2/ With respect to
petitioner's statements to Glanz, after advising the parties that it
considered the matter "a very close question" (Pet. App. A50), the court
found (id. at A51) that petitioner had initiated the conversation with
Glanz by showing "a willingness and a desire for a generalized
discussion about the investigation," Oregon v. Bradshaw, 462 U.S. 1039,
1045-1046 (1983) (plurality opinion), and that she had made "a voluntary
and intelligent waiver (of her Miranda rights) before the lies were told
to her by Glanz." Pet. App. A55. The court therefore denied the motion
to suppress the statements. Pet. App. A44.
3. With one judge dissenting, the court of appeals affirmed
petitioner's conviction on the possession count, but reversed her
conviction on the conspiracy count. /3/ Finding that petitioner had
voluntarily consented to Corporal Durnan's search of the Ford, the court
concluded that the district court had correctly denied her motion to
suppress the cocaine. Pet. App. A7. The court further found that at
the moment Durnan detained petitioner and Terselich, he had a reasonable
basis to believe that they were engaged in the interstate smuggling of
contraband, most likely illegal drugs, and had sufficient probable cause
to make an arrest. The court therefore ruled that Durnan's seizure of
petitioner did not violate the Fourth Amendment, and refused to order
the suppression of the cocaine and petitioner's statements to Agent
Glanz on this ground. Pet. App. A8. /4/ Finally, although the court
found that the district court had improperly applied the principles
outlined in Oregon v. Bradshaw, supra, by determining that petitioner
had waived her rights under Miranda v. Arizona, 384 U.S. 436 (1966), at
the point when she asked Glanz what would happen to her, it nevertheless
concluded that shortly thereafter petitioner had voluntarily waived her
right to counsel and her right to remain silent. The court reasoned
that petitioner's question to Glanz about what would happen to Terselich
satisfied the threshold requirement, as set forth in the Bradshaw
plurality opinion, 462 U.S. at 1044-1046, that she initiate a
conversation that "evince(d) a desire to discuss the case generally."
Pet. App. A12. The court also concluded that, in the totality of the
circumstances -- including petitioner's background, her understanding of
the Miranda warnings when they were given to her, and her request to
speak to Glanz, and despite Glanz's false statements about Terselich --
petitioner's waiver of her Miranda rights was knowing, intelligent, and
voluntary. Pet. App. A12-A14 (citing Frazier v. Cupp, 394 U.S. 731, 739
(1969), and Miller v. Fenton, 796 F.2d 598, 607 (3d Cir.), cert. denied,
479 U.S. 989 (1986)).
In dissent, Judge Stapleton, though joining the court's opinion in
all other respects, disagreed with its conclusion that the holding in
Miller v. Fenton, supra, that voluntariness is entirely a "legal" issue
and therefore subject to plenary review, made a remand superfluous.
Because, in his view, a determination by the district court of the
voluntariness of petitioner's waiver of her Miranda rights would
materially assist an appellate court in deciding the issue, he would
have remanded for such a determination. Pet. App. A18-A20.
Petitioner contends (Pet. 13-16) that her Sixth Amendment right to
subpoena witnesses was violated when the district court erroneously
failed to grant her co-defendant's motion for a judgement of acquittal
at the conclusion of the government's case; that Delaware's two-hour
detention statute, Del. Code Ann. tit. 11, Section 1902 (1985) is
unconstitutional; and that she did not validly waive her Miranda rights
because her waiver was triggered by a DEA agent's deception. None of
these claims warrants further review by this Court. /5/
1. Petitioner initially contends (Pet. 13-14) that the district
court, through its erroneous denial of Terselich's motion for judgement
of acquittal, deprived her of her Sixth Amendment right to subpoena
Terselich as a defense witness. This contention has no merit, and does
not warrant review by this Court.
This case does not present an occasion to decide whether a conviction
must be overturned when the reversal on appeal of a trial court's
erroneous denial of a motion to acquit effectively deprives a defendant
of her Sixth Amendment right to present testimony in her favor.
Petitioner has not made out a violation of her rights under the Sixth
Amendment. "(M)ore than a mere absence of testimony is necessary to
establish a violation" of that right. United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1981). Rather, the testimony of
which a defendant is deprived must be "testimony (that) would have been
relevant and material and * * * vital to the defense." Ibid. (quoting
Washington v. Texas, 388 U.S. 14, 16 (1967)). See also Rock v.
Arkansas, 483 U.S. 44, 52 (1986) (citations omitted) ("the Compulsory
Process Clause of the Sixth Amendment, which grants a defendant the
right to call 'witnesses in his favor,' * * * (l)ogically include(s)
(only) the accused's right to call witnesses whose testimony is
'material and favorable to his defense'").
Petitioner has not established that she was deprived of favorable
testimony by the trial judge's denial of Terselich's motion of
acquittal. First, petitioner can only speculate about the content of
the testimony she would have elicited from Terselich. It was, of
course, Terselich's contradictory account of the purpose and
circumstances of his trip with petitioner that contributed to the
probable cause to arrest petitioner. Petitioner thus had no guarantee
-- indeed, she did not even have reason to believe -- that any testimony
given by Terselich would tend to exonerate her. Petitioner thus falls
far short of making a "plausible showing of how (Terselich's) testimony
would have been both material and favorable to (her) defense." United
States v. Valenzuela-Bernal, 458 U.S. at 867. See also id. at 867 n.7
(noting that Fed. R. Crim. P. 17(b) requires the Government to subpoena
witnesses on behalf of indigent defendants, but only "upon a
satisfactory showing * * * that the presence of the witness is necessary
to an adequate defense").
Second, it is speculative to suggest that the jury would have
credited any testimony Terselich would have given, even if that
testimony was favorable to petitioner. On evidence that the court of
appeals subsequently determined to be insufficient, the jury found
Terselich guilty of a serious narcotics offense and a related conspiracy
offense. Given the jury's appraisal of his conduct, it is probable that
the jury would have viewed with extreme skepticism any testimony
provided by him after his motion for a judgment of acquittal had been
granted. Cr. Sharlow v. Israel, 767 F.2d 373, 378-379 (7th Cir. 1985),
cert. denied, 475 U.S. 1022 (1986) (exclusion of exculpatory hearsay
testimony not Sixth Amendment violation where testimony failed to meet
any criteria for reliability or truthfulness). And, given that it would
almost certainly be inconsistent with statements Terselich gave to
Corporal Durnan before he was arrested, any testimony by Terselich that
would tend to exonerate petitioner would render Terselich vulnerable to
impeachment under Fed. R. Evid. 613, and thus would further diminish the
value of such testimony to petitioner.
Finally, although petitioner might have subpoenaed Terselich, she
could not compel him to testify. Roussell v. Jeane, 842 F.2d 1512, 1516
(5th Cir. 1988) (defendant's Sixth Amendment right to compulsory process
does not overcome witness's Fifth Amendment privilege); United States
v. Paris, 827 F.2d 395, 399 (9th Cir. 1987) (same). At trial, Terselich
invoked his Fifth Amendment privilege against self-incrimination (see
Pet. 13). It is speculative to suppose that if his motion for a
judgement of acquittal had been granted when the government rested he
would have waived that privilege in order to testify for petitioner.
While the double jeopardy clause would have protected him against a
revival of the charges of which he was acquitted, he was still
vulnerable to perjury charges if he testified falsely and to charges on
other, unrelated offenses if evidence of those crimes emerged from his
testimony. In the circumstances, a waiver by Terselich of his Fifth
Amendment privilege would have been most unlikely. In short, the record
provides no support for petitioner's claim that her Sixth Amendment
rights were violated. Her contention to the contrary does not warrant
this Court's review. /6/
2. Petitioner renews her substantive claim (Pet. 14-15) that Del.
Code Ann. tit. 11, Section 1902 (1985) is unconstitutional, and that
because she was unconstitutionally taken into custody pursuant to this
statute, the cocaine discovered during the search of the Ford and her
statements to Agent Glanz -- the fruits of this allegedly unlawful
detention -- must be suppressed. The court of appeals correctly held
that the constitutionality of the Delaware statute was irrelevant to the
admissibility of the cocaine because Durnan ahd probable cause to arrest
petitioner. Thus, the case prsents no occasion for consideration of the
constitutional validity of the Deleware Statute.
The record reveals that at the time Corporal Durnan placed petitioner
under "two-hour detention," he knew that: (1) petitioner and Terselich
told him conflicting stories about the purpose of their trip and the
nature of their relationship; (2) petitioner and Terselich both
appeared nervous as they answered his questions; (3) petitioner told
him the Ford belonged to her cousin, but could not name the cousin; (4)
petitioner and Terselich were on a long-distance trip from Miami, a
major drug importation area, to New York; and (5) the car petitioner
was driving had a false floor in its trunk and appeared to have been
specially modified to carry contraband in a secret compartment.
On these facts, the court of appeals correctly found that Durnan had
a reasonable basis to believe that petitioner and Terselich were
smuggling contraband, most likely illegal drugs, and that he therefore
had probable cause to arrest petitioner. The court of appeals thus had
ample reason to conclude that Durnan's seizure of petitioner did not
violate the Fourth Amendment, and accordingly had no occasion to
consider petitioner's claim that Del. Code Ann. tit. 11, Section 1902
(1985) is unconstitutional.
Even if the court of appeals had found the Delaware statute
unconstitutional, this determination would not have precluded the
government from showing probable cause as a justification for
petitioner's detention. See Florida v. Rover, 460 U.S. 491, 507 (1983)
(plurality opinion) (although officers did not believe they had probable
cause and proceeded on Terry stop rationale, State was not precluded
from justifying defendant's custody by proving probable cause); United
States v. Hawkins, 811 F.2d 210, 214-215 (3d Cir. 1987) (pretextual
justification will not invalidate objectively reasonable stop); United
States v. Belle, 593 F.2d 487, 496-497 (3d Cir.) (initial non-arrest
characterization of detention does not preclude review of record for
probable cause to support arrest), cert. denied, 442 U.S. 911 (1979).
In the present case, the court of appeals correctly concluded that when
Corporal Durnan placed petitioner under temporary detention, he had
probable cause to arrest her as well. Thus, the subsequent search was
not "tainted" by an illegal detention, and the evidence obtained was
not, for that reason, inadmissible.
3. Finally, petitioner contends (Pet. 15-16) that because her waiver
of her Miranda rights was triggered by a DEA agent's deception, the
waiver was invalid. The contention is without merit, and presents a
fact-bound issue that does not warrant this Court's consideration.
An accused person in custody who has invoked his right to have a
lawyer present before answering questions is generally not subject to
further interrogation "unless the accused himself initiates further
communications, exchanges, or conversations with the police." Edwards v.
Arizona, 451 U.S. 477, 484-485 (1981). As subsequently articulated by a
plurality of this Court in Oregon v. Bradshaw, 462 U.S. at 1045-1046, it
is not a violation of Miranda to resume an interrogation so long as (1)
the accused person, not the authorities, initiates the conversation in
question, and (2) after the suspect has initiated the conversation, he
knowingly and voluntarily waives his rights to counsel and to remain
silent. The plurality in Bradshaw held that the requisite "initiation"
could be established by questions that "evinced a willingness and a
desire for a generalized discussion about the investigation," but not
"merely (by) a necessary inquiry arising out of the incidents of the
custodial relationship," 462 U.S. at 1046, such as a request for a drink
of water or to use the telephone. 462 U.S. at 1045.
In the present case, half an hour after petitioner had been given her
Miranda warnings and had initially declined to speak to DEA Agent Glanz,
she told Corporal Durnan to call the agent back. In the interview room,
she asked Glanz, "What is going to happen?" Agent Glanz explained that a
magistrate would set bail for her, and that she faced a possible
mandatory minimum sentence of 10 years. Petitioner then asked what
would happen to Terselich. /7/ Glanz falsely told her that Terselich
had incriminated her.
The court of appeals correctly concluded that petitioner's initial
inquiry to a federal narcotics investigator showed petitioner's desire
to enter into "a generalized discussion about the investigation," and
satisfied the first leg of the Bradshaw test. See 462 U.S. at 1042
(requisite initiation of conversation shown when suspect asked, "Well,
what is going to happen to me now?").
The court also correctly found that the subsequent waiver was knowing
and intelligent (Pet. App. A12-A13). The determination whether a
suspect has knowingly and voluntarily waived his Miranda rights to
counsel and to remain silent is made in the totality of the
circumstances, Edwards v. Arizona, 451 U.S. at 486 n.9, and those
circumstances include the suspect's background, experience, and conduct.
See Bradshaw, 462 U.S. at 1046. The court observed that at the time of
the waiver petitioner was a mature, 43-year old adult, who had graduated
from college in Columbia and worked as a journalist there, who spoke and
understood English and had lived in the United States for 15 years, and
who had worked in Miami as a cosmetologist. She evidently had
understood the Miranda warnings given her by Corporal Durnan because she
had invoked her rights to counsel and to remain silent half an hour
before she made the incriminating statements to Agent Glanz. The court
of appeals thus had good reason to conclude that petitioner had "a full
awareness both of the nature of the right being abandoned and the
consequences of the decision to abandon it" (Moran v. Burbine, 475 U.S.
412, 421 (1986)), and that her waiver was therefore knowing and
intelligent.
That waiver, as the court of appeals also found, was voluntary as
well. While such a waiver, to be voluntary, must be "the product of a
free and deliberate choice rather than intimidation, coercion or
deception" (Moran v. Burbine, 475 U.S. at 421), lies told by the police
do not necessarily render a waiver involuntary, but are simply a factor
for a reviewing court to consider in determining whether, in the
totality of the circumstances, a waiver was voluntary. Frazier v. Cupp,
394 U.S. 731, 739 (1969) (voluntariness of confession); see Miller v.
Fenton, 796 F.2d at 607 (same).
Here Glanz's false statements were the sole circumstance supporting a
finding that petitioner's waiver was involuntary. She had been in
custody for less than two hours when she made the incriminating
statements. She had not been threatened or ill-treated, nor had any
promises been made to her. She had been given Miranda warnings only
half an hour before she asked to speak with Glanz, and she had
understood those warnings well enough to invoke her rights to counsel
and to reamin silent. Cf. Frazier v. Cupp, 394 U.S. at 739 (fact that
defendant had received "warnings of his constitutional right()" to
remain silent prior to confession is "a circumstance quite relevant to
the finding of voluntariness"). In light of these circumstances and of
petitioner's age, intelligence, and maturity, the court of appeals
correctly found (Pet. App. A13-A14) that Glanz's deceptions, although
they created a false impression of the strength of the government's
evidence of petitioner's guilt and may have partially influenced her
statements, had nonetheless not overcome petitioner's will or her
capacity for self-control. Accordingly, those deceptions, "while
relevant, (were) insufficient * * * to make this otherwise voluntary
confession inadmissible" (Frazier v. Cupp, 394 U.S. at 739). Thus, the
court of appeals did not err in holding that, in the totality of the
circumstances (Bradshaw, 462 U.S. at 1046; Edwards v. Arizona, 451 U.S.
at 486 n.9), petitioner's waiver of her rights to counsel and to remain
silent was knowing, intelligent, and voluntary.
Petitioner suggests (Pet. 15-16) that review of this case is
necessary to resolve an "important question of federal law:" whether the
voluntariness of a waiver of Miranda rights is a question of law to be
decided de novo by the court of appeals, or a question of fact on which
the appellate court must defer to the findings of the district court.
Review to address this issue is unwarranted, for two reasons. First,
the court of appeals correctly applied, in this context, this Court's
previous ruling in Miller v. Fenton, 474 U.S. 104, 111 (1985) that the
voluntariness of a confession is a legal question requiring independent
federal determination. See also Miller v. Fenton, on remand, 796 F.2d
598 (3d Cir.), cert. denied, 479 U.S. 989 (1986). /8/ Although the
Court in Miller noted that it had no occasion to address the issue of
deference to trial court findings "concerning the validity of a waiver
(of Miranda rights)" 474 U.S. at 108 n.3, there is nothing in the
discussion in Miller to suggest any reason why the question of
voluntariness of a waiver of constitutional rights should not also be
considered a question of law subject to de novo review.
In any event, there is no disagreement in the courts of appeals on
this issue. Indeed, even in this case, the dissent agreed with the
majority's fundamental conclusion that the voluntariness of petitioner's
waiver, like the voluntariness of the confession in Miller v. Fenton,
"was not a 'factual' issue, the resolution of which by (the trial court)
must be 'presumed correct.'" Pet. App. A18. The sole source of
disagreement was with the procedural implications of the standard of
plenary review ratified by the majority. The majority, noting that
district court determinations are not entitled to deference in this area
(Pet. App. A11 n.8), did not think it necessary to remand the case to
the district court for a determination of the voluntariness of
petitioner's waiver of her Miranda rights. The dissent argued (Pet.
App. A18-A20) that such a remand should be ordered because it would
materially assist an appellate court to resolve the issue. At most,
then, the dissent suggests the possibility of a disagreement within the
Third Circuit over the proper application of this Court's holding, and
its own, on remand, in Miller v. Fenton. Such a disagreement does not
provide a basis for this Court's review.
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
THOMAS M. GANNON
Attorney
FEBRUARY 1990
/1/ In an Order Amending Slip Opinion, dated October 2, 1988, the
court of appeals struck from its opinion the sentence asserting that
Glanz had told petitioner that Terselich had said that petitioner had
been paid $5000 to drive the drugs north from Miami. See Pet. App. A22.
However, the record reveals that Glanz did testify at the suppression
hearing that he reported such a statement to petitioner, see Gov't C.A.
Br. 30 (citing App. 399), and Judge Higginbothom referred to this
testimony in the companion opinion of the court of appeals. See Pet.
App. A25.
/2/ The district court specifically rejected petitioner's arguments
that (1) she was under arrest at the time she consented to the search,
(2) she did not consent at all because she was psychologically incapable
of doing so and, moreover, needed her glasses to understand the "Consent
to Search" form, and (3) the search exceeded the scope of the consent.
Pet. App. A38-A41.
/3/ The reversal was prompted by the court's decision in the
companion case of United States v. Terselich, 885 F.2d 1094 (3d Cir.
1989). See Pet. App. A23-A28. In Terselich, the court found that
evidence insufficient to support the possession and conspiracy
convictions of petitioner's companion. This finding resulted in a
related finding that there was insufficient evidence for the jury to
conclude that petitioner conspired with Terselich. Because the court
could not conclusively ascertain whether the jury had based petitioner's
conspiracy conviction on a finding that she had conspired with
Terselich, and because the record showed a substantial likelihood that
the jury had based the conspiracy conviction on that impermissible
determination, the court of appeals reversed the conviction. Pet. App.
A16-A17.
/4/ Because of its disposition of this issue, the court of appeals
did not reach petitioner's claim that Del. Code Ann. tit. 11, Section
1902 (1985) is unconstitutional. Pet. App. A8. See also Pet. App. A26
n.2. But cf. id. at A25 n.1 (stating, erroneously, in the companion
case that the court of appeals in the instant case had held the Delaware
two-hour detention statute unconstitutional).
/5/ Petitioner raises (Pet. 1), but does not argue, four additional
claims: (1) that the traffic stop of petitioner by Corporal Durnan was
unconstitutional; (2) that petitioner was not competent to stand trial;
(3) that the evidence against petitioner was insufficient to support
her conviction; and (4) that petitioner's possession conviction should
have been reversed because it was impossible to tell whether that
conviction was based on impermissible grounds. The court of appeals
explicitly considered and rejected the first three claims. See Pet.
App. A6 n.6, A14-A15, A15-A16, and implicitly rejected the fourth --
which, in any event was not raised or argued below -- when it rejected
her claim on the sufficiency of the evidence. Pet. App. A15-A16.
/6/ In the related area of severance motions based on the need for a
co-defendant's testimony, it is well settled that "(t)o establish a
prima facie case for severance * * *, a movant must demonstrate: 1) a
bona fide need for the testimony; (2) the substance of the testimony;
(3) the exculpatory nature and effect of the testimony; and (4) the
likelihood that the co-defendant will testify if the cases are severed."
United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989) (collecting
cases). See also e.g., United States v. Machado, 804 F.2d 1537, 1544
(11th Cir. 1986); United States v. Daly, 756 F.2d 1076, 1080 (5th
Cir.), cert. denied, 474 U.S. 1022 (1985); United States v. Drougas,
748 F.2d 8, 19 (1st Cir. 1984); United States v. Parodi, 703 F.2d 768,
779 (4th Cir. 1983); United States v. Finkelstein, 526 F.2d 517,
523-524 (2d Cir. 1975), cert. denied, 425 U.S. 960 (1976); see
generally 1 C. Wright, Federal Practice and Procedure, Section 225, at
832 (2d ed. 1982). In the present case, while petitioner might arguably
satisfy the first of these requirements, she has not made the showing
required to satisfy the other three criteria.
/7/ The district court found that petitioner had made a voluntary and
intelligent waiver of her Miranda rights when she asked this question,
and as a result of its determination, declined to consider the effect of
Glanz's deceptions on petitioner. Pet. App. A11. The Court of appeals
rejected this conclusion as erroneous. Ibid. Because petitioner
admitted her involvement in transporting the cocaine only after Glanz
had lied to her about Terselich, the court of appeals reasonably
concluded (Pet. App. A12) that petitioner's waiver of her Miranda rights
took place after Glanz made his false statements.
/8/ Although the Court in Miller considered the issue in the context
of federal habeas review of a state court judgement, the Court noted
that it was relying on earlier decisions that established "the
independent-determination rule in confession cases" in the context of
"direct appeal from state-court judgements." 474 U.S. at 110-111. See,
e.g., Mincey v. Arizona, 437 U.S. 385 (1978); Ashcroft v. Tennessee,
322 U.S. 143 (1944).
GJON N. NIVICA, PETITIONER V. UNITED STATES OF AMERICA
MARK WELLINGTON, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6140, 89-6360
In The Supreme Court Of The United States
October Term, 1989
On Petitions For A Writ Of Certiorari To The United States Court Of
Appeals For The First Circuit
Brief For The United States In Opposition
The opinion of the court of appeals, 89-6140 Pet. App. A1-A45, is
reported at 887 F.2d 1110.
The judgement of the court of appeals was entered on September 29,
1989. Petitions for rehearing were denied on November 1, 1989. The
petition for a writ of certiorari in No. 89-6140 was filed on December
4, 1989. The petition for a writ of certiorari in No. 89-6360 was filed
on January 2, 1990. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
1. Whether the district court's denial of petitioner Nivica's in
limine motion to limit the scope of the government's cross examination
of him if he testified is subject to appellate review even though
petitioner did not testify at trial (No. 89-6140).
2. Whether petitioner Wellington, who was acting as his own lead
counsel, was deprived of his right to testify when the district court
required him to ask himself questions and give answers (No. 89-6360).
3. Whether the district court adequately instructed the jury on the
defense of good faith (No. 89-6360).
After a jury trial in the United States District Court for the
District of Massachusetts, petitioners were convicted on four counts of
mail fraud (18 U.S.C. 1341); seven counts of wire fraud (18 U.S.C.
1343); three counts of interstate transportation of money taken by
fraud (18 U.S.C. 2314); one count of causing interstate travel in order
to execute a fraudulent scheme (18 U.S.C. 2314); and one count of
conducting the affairs of an enterprise through a pattern of
racketeering activity (18 U.S.C. 1962(c)). /1/ The district court
sentenced petitioner Nivica to four years' imprisonment and a $15,000
fine. It sentenced petitioner Wellington to eight years' imprisonment
and a $25,000 fine. The court of appeals affirmed the convictions and
sentences.
1. The evidence at trial showed that between October 1982 and January
1983, petitioners, along with co-defendant David Pedley Wellington
(petitioner Wellington's father), offered to exchange Mexican pesos for
dollars or dollar-denominated certificates of deposit issued by
co-defendant Merchant Bank and Trust Co., Ltd. Petitioners made this
offer despite currency restrictions imposed by Mexico in September 1982.
Pursuant to those restrictions, Mexico nationalized its banking system,
converted all U.S. dollar deposits into Mexican pesos, and restricted
the exchange of pesos for dollars.
Petitioner Wellington and his father, operating out of Mexico City,
acquired the corporate shell for Merchant Bank from a lawyer in the
Northern Marianas Islands. Nivica, a Massachusetts lawyer, acted as the
bank's general counsel and recruited as the first board of directors
three men who were already directors of a bank in the Bahamas. 89-6140
Pet. App. A3. Nivica concealed the Wellingtons' ownership interest from
those directors. When they later became suspicious of Merchant's
activities, Nivica replaced them with new directors. 89-6140 Pet. App.
A6; Gov't C.A. Br. 8, 15-16.
At the same time, petitioner Wellington (using the alias "Jack
Williams") and his father (using the alias "Paul Johnson") falsely
represented to customers that the bank had millions of dollars in assets
and that its certificates of deposit were backed by a trust account
containing securities worth 135% of the bank's outstanding liabilities.
89-6140 Pet. App. A3. Although Nivica tried to obtain a custodial
agreement with various banks, in December 1982 he had to settle for a
simple agency agreement, under which a trust company agreed only to hold
whatever assets Merchant provided. Gov't C.A. Br. 16, 17-18, 19-20.
Merchant's customers were given Merchant bank drafts with which they
were supposed to be able to obtain dollars. The Wellingtons used
Nivica's attorney trust account in Massachusetts to pay some of the
drafts, but many customers found that there were no funds to back the
drafts. Nivica had to give express approval for payment on any Merchant
draft, and he only honored about a third of the drafts. 89-6140 Pet.
App. A4, A5; Gov't C.A. Br. 12-13. Ultimately, the bank's customers
suffered a loss of some $6,000,000. 89-6140 Pet. App. A4. /2/
2. a. Petitioners were tried together with other perpetrators of the
Merchant Bank scheme. See note 1, supra. Petitioner Nivica moved in
limine to restrict the scope of the government's cross examination of
him in the event he testified at trial. Nivica's lawyer told the court
that Nivica wanted to testify about his interview with an FBI agent;
the circumstances of his first meeting with David Wellington; and the
explanation he was given for the Wellingtons' name changes. Nivica's
counsel asked the trial court to limit cross examination to those areas
and to questions bearing on his credibility. The district court
declined to do so. Nivica then chose not to testify, citing the
district court's ruling. 89-6140 Pet. App. A10.
b. At petitioner Wellington's request, the district court allowed
Wellington to act as co-counsel with his appointed attorney. Wellington
eventually asked that he be allowed to act as lead counsel and examine
witnesses. The court tried to dissuade Wellington from that course, and
warned him that if he testified, he would have to ask himself questions
and give answers rather than simply giving a narrative -- i.e., he could
not have his lawyer question him. If Wellington wanted to serve as lead
counsel, the court maintained, he had to assume the full burdens of that
position and could not "bounce back and forth" between lead counsel and
a lesser role. 89-6140 Pet. App. A21-A22. /3/
When it came time for Wellington to put on his defense, Wellington
announced that he would testify. Rather than examining himself, or
renewing his request to have his lawyer examine him, Wellington asked
the court to allow the jury to ask him questions. When the court denied
that request, Wellington asked himself if he had "anything to hide." He
responded that "(t)he answer is No." After the court sustained the
prosecutor's subsequent objection, Wellington left the stand, saying:
"Well, I guess I can't ask myself any more questions then." Wellington
did not request that his lawyer conduct further direct examination of
him. 89-6140 Pet. App. A22-A23.
3. The court of appeals, relying on this Court's decision in Luce v.
United States, 469 U.S. 38 (1984), and its own post-Luce cases, held
that petitioner Nivica could not obtain appellate review of the district
court's in limine ruling. 89-6140 Pet. App. A10-A15. Because Nivica
did not testify or ask for a question-and-answer voir dire, the exact
testimony he might have given at trial was "'unknowable'" and the harm
"'wholly speculative.'" The trial judge might have changed his mind when
presented with actual testimony at trial. Alternatively, the government
might not have sought to question Nivica on matters beyond the scope of
his direct examination. 89-6140 Pet. App. A13 (quoting Luce). Beyond
that, Nivica may have decided not to testify for reasons other than the
district court's denial of his in limine motion. And even if Nivica had
testified and the district court erroneously failed to cabin the
government's cross-examination, Nivica's failure to testify or present
voir dire prevented the appellate court from judging the harmfulness of
the hypothetical error. /4/
The court of appeals also rejected petitioner Wellington's argument
that the district court should have permitted his lawyer to examine him.
89-6140 Pet. App. A23-A29. The trial court had discretion, in granting
Wellington the opportunity to act as lead counsel, "to place reasonable
limitations and conditions upon the arrangement." 89-6140 Pet. App. A25.
Requiring Wellington to conduct all witness questioning (including
elicitation of his own testimony) or entrust that task to his appointed
counsel was just such a reasonable condition, according to the court of
appeals, because the confusion caused if the court had allowed team
questioning might have trenched on the constitutional rights of
Wellington's co-defendants (particularly if they sought to follow
Wellington's lead). 89-6140 Pet. App. A26-A27. In any event, the court
found that Wellington lost his right to testify not because of the trial
court's ruling, but because of his own decision to abandon his direct
examination. 89-6140 Pet. App. A27-A28.
The court of appeals also held that the trial court adequately
instructed the jury on the defense of good faith, and rejected
Wellington's contrary contention. 89-6140 Pet. App. A31-A34. /5/
1. Petitioner Nivica renews his contention that the district court's
in limine ruling abridged his right to testify in his own defense.
89-6140 Pet. 7-16.
In Luce v. United States, supra, this Court held that, by deciding
not to testify, the defendant waives his right to appellate review of a
district court's allegedly erroneous in limine ruling -- in that case,
that the prosecutor could impeach the defendant with his prior
conviction. The Court explained that a proper determination of the
prior conviction's admissibility required the trial court to know "the
precise nature of the defendant's testimony, which is unknowable when,
as here, the defendant does not testify." 469 U.S. at 41 (footnote
omitted). In addition, any possible harm from an in limine ruling is
"wholly speculative," because a trial court may change its ruling in
light of developments at trial. Id. at 41-42. Furthermore, there is no
way to know whether the government actually would have used the prior
conviction in cross examination, and the adverse ruling may not have
been the basis for a defendant's decision not to testify. Id. at 42.
Finally, absent a defendant's actual testimony and cross examination,
there is no way to assess the harmlessness of the asserted error.
Requiring a defendant to testify in order to preserve his claim for
review therefore prevents defendants from "'plant(ing)'" reversible
error in the record.
The court of appeals correctly held that Nivica's challenge to the
district court's in limine ruling was foreclosed by Luce. 89-6140 Pet.
App. A13, A14. When Nivica moved in limine and the district judge said
that he thought that Nivica would open himself up to a broad cross
examination, the prosecutor observed that Nivica, "like any other
witness, * * * (was) entitled to the protection of the rules and the
rules of evidence." 19 Tr. 13. That statement indicates that the
prosecutor likely would have adhered to the normal rule that cross
examination must be relevant to topics brought out on direct examination
and reasonably related to them. See Brown v. United States, 356 U.S.
148, 154-156 (1958). Hence, petitioner's concern about the scope of
cross examination is entirely speculative, just as in Luce. And it is
likewise impossible to determine whether any error regarding the scope
of cross examination would have been harmless because Nivica failed to
testify and subject himself to cross examination. /6/ The
considerations enumerated in Luce fully apply to petitioner Nivica's
cross examination claim; Nivica's failure to testify at trial prevents
him from resurrecting it on appeal.
Nivica seeks to distinguish Luce on the ground that it did not
involve a constitutional claim. He relies principally on New Jersey v.
Portash, 440 U.S. 450 (1979). But the Court in Portash simply deferred
to the decision of the state trial and appellate courts to consider the
defendant's claim on the merits, noting that in such a circumstance the
Court would likewise reach the merits. Id. at 454-455. The same was
true in Brooks v. Tennessee, 406 U.S. 605 (1972), on which Nivica also
relies. Neither case established a blanket rule allowing a defendant to
challenge in limine evidentiary rulings on appeal when he declined to
testify at trial.
2. Petitioner Wellington argues that he was deprived of his right to
testify and his right to the assistance of counsel by the district
court's ruling that, if he chose to testify, he had to conduct his own
examination. 89-6360 Pet. 5-14.
Although the district court unquestionably had discretion to permit
Wellington's appointed counsel to examine him at trial, 89-6140 Pet.
App. A23-A24, Wellington points to no case -- and we are aware of none
-- that requires a district court to allow both a defendant and his
lawyer to examine witnesses jointly. See 89-6360 Pet. 7 ("petitioner
may not have had a constitutional right to act as co-counsel ('hybrid
representation') in this circumstance"). Instead, Wellington simply
asserts that the district court presented him with an unconstitutional
"Hobson's choice" when it required him to choose between examining
witnesses himself or having his lawyer conduct the examinations.
89-6360 Pet. 10-11. Wellington's claim presupposes, however, that the
requirement that he examine himself in fact prevented him from
testifying in his defense. The record does not support that assumption.
As the court of appeals correctly concluded, Wellington failed to
exercise his right to testify not because of the trial court's ruling
concerning the method of examination, but because of his own decision to
forgo further inquiry. 89-6140 Pet. App. A27-A28. Wellington chose to
ask only one patently objectionable question. When the trial judge
sustained the government's objection to that question, Wellington did
not rephase his question. Nor did he ask the court to reconsider its
earlier ruling and allow his lawyer to question him. Instead, he chose
to leave the stand, claiming that he could not ask any other questions.
See 89-6140 Pet. App. A28 n.7.
In any event, the Constitution does not insulate a defendant from
difficult choices, including choices among constitutional rights.
McGautha v. California, 402 U.S. 183, 213 (1971). Wellington's own
authorities make this point quite clear. Wellington cites Whiteside v.
Scurr, 744 F.2d 1323 (8th Cir. 1984), in support of his claim that he
was improperly forced to waive his right to the assistance of counsel.
But Wellington fails to note that this Court reversed the Eighth Circuit
and held that there is no Sixth Amendment violation when a lawyer
refuses to cooperate with his client in presenting perjurious testimony
at trial. Nix v. Whiteside, 475 U.S. 157, 166-176 (1986). It follows
that Wellington suffered no Sixth Amendment deprivation when forced to
make a similar choice between testifying on his own behalf and the
assistance of counsel, particularly when his lawyer acted as co-counsel
throughout the trial. /7/
3. Finally, petitioner Wellington claims that the district court
should have given the jury a separate instruction on his defense of good
faith. 89-6360 Pet. 15-17.
It is axiomatic that a trial court's instructions must be viewed both
in the context of the charge as a whole and in light of the entire trial
record. United States v. Park, 421 U.S. 658, 674 (1975); Cupp v.
Naughten, 414 U.S. 141, 146-147 (1973). The district court here
specifically instructed the jury that "good faith" was a defense to the
charges and negated a defendant's specific intent:
(T)he government must prove beyond a reasonable doubt that each
defendant participated and acted knowingly with an intent to
deceive or defraud. A defendant doesn't act with intent to
deceive or defraud by accidentally doing something or mistakenly
doing something or doing something in good faith. * * * A
defendant must act knowingly with intent to defraud. Fraudulent
intent is never assumed or presumed. It is personal intent. One
can be charged only with what that person intends, not the intent
of some other persons. Bad faith is essential. Good faith is a
defense. One who acts with honest intentions, mistake, accident,
(or) inadvertence cannot be charged with fraudulent intent.
Fraudulent intent, as I said here, is established when the person
knowingly and intentionally attempts to deceive another, that
person is chargeable with fraudulent intent even though that
person may be unaware of the exact manner and the exact form in
which that deception or the entire scheme is to take place.
89-6140 Pet. App. A32 n.10 (emphasis added).
The overwhelming majority of the circuits have held that an
instruction on specific intent that speaks of intent to deceive
sufficiently conveys the concept of the good faith defense to a jury.
E.g., United States v. Gambler, 662 F.2d 834, 837 (D.C. Cir. 1981); New
England Enterprises, Inc. v. United States, 400 F.2d 58, 71 (1st Cir.
1968), cert. denied, 393 U.S. 1036 (1969); United States v. Bronston,
658 F.2d 920, 930 (2d Cir. 1981), cert. denied, 456 U.S. 915 (1982);
United States v. Chenault, 844 F.2d 1124, 1130 (5th Cir. 1988); United
States v. McGuire, 744 F.2d 1197, 1201-1202 (6th Cir. 1984), cert.
denied, 471 U.S. 1004 (1985); United States v. Green, 745 F.2d 1205,
1209 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985). The trial
court's instructions certainly satisfy that standard.
Although the Eighth and Tenth Circuits have held, in certain
circumstances, that there must be an express instruction on the defense
of good faith, e.g., United States v. Ammons, 464 F.2d 414, 417 (8th
Cir.), cert. denied, 409 U.S. 988 (1972); United States v. Hopkins, 744
F.2d 716, 717-718 (10th Cir. 1984) (en banc), /8/ the district court's
instruction here would have satisfied even the Eighth and Tenth
Circuits. 89-6140 Pet. App. A33. The jury instructions expressly
stated that good faith conduct was a defense and that such conduct
negated the specific intent required to convict under the applicable
statutes. /9/
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
LOUIS M. FISCHER
Attorney
FEBRUARY 1990
/1/ The district court acquitted petitioners on one additional wire
fraud count and one interstate travel count. Petitioners stood trial
with co-defendants Merchant Bank & Trust co., Ltd., Suzanne Pedley,
Brian E. Fisher, and David Pedley Wellington. Merchant Bank was
convicted on virtually the same counts as petitioners, but it did not
appeal. Pedley and Fisher, who were charged with all but the RICO
count, were acquitted. David Wellington was in custody in Mexico at the
time of trial; he has not yet been tried on the instant charges.
/2/ As the scheme was winding down, Nivica denied to a Treasury
official that the bank was doing business in this country. Nivica also
tried to cover up the scheme when he was visited by FBI agents in early
January 1983. 89-6140 Pet. App. A8; Gov't C.A. Br. 21-23.
/3/ Two days later, Wellington's lawyer sought clarification of the
court's order. Counsel said that he understood the court to have ruled
that if Wellington examined prosecution witnesses, Wellington would be
responsible for the entire examination. The court said that counsel's
understanding was correct; the judge said he would not allow Wellington
and his lawyer to alternate questioning. Thereafter, Wellington cross
examined the government's witnesses. Before concluding each
cross-examination, the court had Wellington consult with his lawyer to
make sure that the most important topics were covered. Gov't C.A. Br.
48 n.50.
/4/ The court of appeals also rejected Nivica's attempt to
distinguish Luce on the ground that the district court had ruled as a
matter of law that the government's cross examination would not be
limited. The court held instead that the district judge's decision,
whatever his initial inclination, still would have had to be based on
the particular questions that arose at trial; the judge could not make
a final ruling in a vacuum. 89-6140 Pet. App. A13-A15.
/5/ The court of appeals also rejected Wellington's argument that the
proof did not show his knowing participation in the scheme; that the
trial court had erred in failing to grant Wellington's last-minute
motion to subpoena six witnesses; that evidence of the Wellingtons'
previous indictment and of petitioner Wellington's arrest was
erroneously admitted; that the trial court should have allowed the jury
to question Wellington; that the district court should have admitted a
tape recording (or transcript of that recording) that Wellington
proffered; and that the trial court erred in admitting certain summary
charts and documentary exhibits on which the charts were based.
/6/ Nivica was not without a remedy at trial. He could have
proffered a question and answer voir dire that set out the exact nature
of his proposed testimony, and the government then could have cross
examined him, all outside the presence of the jury. See Fed. R. Evid.
103(b). In that way, he would have had a concrete record on which to
base his claim.
/7/ The district court had petitioner consult with his lawyer before
concluding his examination of each witness whom he chose to cross
examine. See 12 Tr. 48-49. Petitioner's counsel continued to make
legal objections, such as when the government attempted to cross examine
Wellington after his aborted testimony. See 17 Tr. 105-106; 19 Tr. 65.
Petitioner's lawyer assisted him throughout the trial and represented
him fully on legal issues.
/8/ Even the Eighth and Tenth Circuits do not hold that a separate
instruction on good faith must be given in every case. They merely hold
that, when the charge as a whole makes no mention of good faith, a
standard instruction on specific intent is insufficient to convey the
substance of the good faith defense to the jury. See United States v.
Casperson, 773 F.2d 216, 223 (8th Cir. 1985); United States v. Hopkins,
744 F.2d at 718.
Wellington also claims, 89-6360 Pet. 16, that the Fifth Circuit's
rule is the same as that in the Eighth and Tenth Circuits. To the
contrary, the Fifth Circuit has held that an instruction on specific
intent is sufficient to convey the substance of a good faith defense.
See United States v. Chenault, 844 F.2d at 1130; United States v.
Laverne, 805 F.2d 517, 523 (5th Cir. 1986); United States v. Hunt, 794
F.2d 1095, 1097-1098 (5th Cir. 1986).
/9/ It is not clear that the adequacy of the district court's good
faith defense instruction is properly before the Court. Wellington
proffered no testimony to support his claim in the court of appeals that
he relied on the actions of a third ppaty in setting up the bank. To
the contrary, the record is replete with Wellington's false statements
to customers and others that are devoid of good faith. Gov't C.A. Br.
61 n.63.
What is more, Wellington's lawyer merely adopted an objection voiced
by Nivica's lawyer -- who conceded the validity of the charge. Nivica's
lawyer objected that the district court had omitted a sentence from his
tendered instruction concerning an opinion or belief that was honestly
held. Gov't C.A. Br. 61. Because Wellington failed to testify to any
such opinion or belief, the alleged omission could not have harmed him
and thus furnishes no basis for review of his convictions.
UNITED STATES OF AMERICA, PETITIONER V. DARLINA K. FRANCE
No. 89-1363
In The Supreme Court Of The United States
October Term, 1989
The Solicitor General, on behalf of the United States, petitions for
a writ of certiorari to review the judgment of the United States Court
of Appeals for the Ninth Circuit in this case.
Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
The opinion of the court of appeals (App., infra, 1a-12a) is reported
at 886 F.2d 223.
The judgment of the court of appeals was entered on September 13,
1989, and a petition for rehearing was denied on January 16, 1990.
App., infra, 15a. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
Federal Rule of Criminal Procedure 51 provides:
Exceptions to rulings or orders of the court are unnecessary
and for all purposes for which an exception has heretofore been
necessary it is sufficient that a party, at the time the ruling or
order of the court is made or sought, makes known to the court the
action which that party desires the court to take or that party's
objection to the action of the court and the grounds therefor;
but if a party has no opportunity to object to a ruling or order,
the absence of an objection does not thereafter prejudice that
party.
Federal Rule of Criminal Procedure 52(b) provides:
Plain Error. Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of
the court. STATEMENT
Whether this Court's decision in Gomez v. United States, 109 S. Ct.
2237 (1989), requires reversal of respondent's convictions even though
she did not object to a magistrate's conducting voir dire and even
though her attorney expressed no objection to the manner in which the
jury was selected.
After a jury trial in the United States District Court for the
District of Hawaii, respondent was convicted of assault with a deadly
weapon, in violation of 18 U.S.C. 113(c), assault resulting in serious
bodily injury, in violation of 18 U.S.C. 113(f), and use of a firearm in
relation to a crime of violence, in violation of 18 U.S.C. 924(c). She
was sentenced to five years' imprisonment and three years' probation.
1. On December 20, 1986, respondent became upset with her third
husband, Neil, when he knocked over a Christmas tree during an argument
in their house on a military reservation in Hawaii. Tr. 29, 44,
164-165. Neil left the house and went to a nearby PX. Tr. 48. Later
that day, she told a friend that she was angry at her husband and that
she would shoot him if she could find a gun. Tr. 165. She had made
similar remarks in the past. Tr. 221. Respondent was drinking beer at
home with her friends when Neil returned. Neil was disturbed that
respondent was drinking, so he took her beer from the refrigerator and
moved it out into the yard. Respondent then chased Neil into the
kitchen where they had a loud argument. Tr. 165-168.
After the fight, Neil left the house. Respondent, carrying a gun,
then emerged from the house and told Neil that he should leave. Tr.
169-170, 316. Neil, however, started to walk back toward the house.
Respondent then shot and seriously wounded Neil. Tr. 196. She walked
over to him and said in a normal tone of voice, "I told you I would do
it." Tr. 211. When a military policeman arrived on the scene,
respondent told him: "He threw the Christmas tree down and that made me
mad, but he took my beer and that was the last straw." Tr. 352-353.
Respondent admitted at trial that she had also fired a gun at her first
husband, and that she had boasted of shooting at her second husband.
Tr. 311, 328.
2. Prior to trial, in accordance with what was at that time the
regular practice in the District of Hawaii, the district court assigned
jury selection to a federal magistrate. Respondent did not object to
this assignment, nor did she request that a district judge conduct the
voir dire.
During voir dire, the magistrate sustained respondent's only objectio
to a proposed question submitted by the government. 4/27/87 Tr. 62-63.
In addition, the magistrate asked an additional question of the venire
at respondent's request. 4/27/87 Tr. 65. At the conclusion of jury
selection, the magistrate asked the parties: "For the record, would you
like -- is there any objection you'd like to make in the manner in which
the jury was selected?" 4/27/87 Tr. 71. Respondent's counsel replied:
"No, your honor." Ibid. When the trial began the next day before a
district judge, respondent did not object to the magistrate's
supervision of jury selection or to any of the magistrate's rulings.
The jury found petitioner guilty on all three counts described above.
/1/
3. In her initial brief on appeal, respondent challenged only her
firearms conviction under 18 U.S.C. 924(c). She did not raise any issue
concerning the selection of the jury by the magistrate. While the
appeal was pending, this Court decided Gomez v. United States, 109 S.
Ct. 2237 (1989). In Gomez, the Court held that the Federal Magistrates
Act, 28 U.S.C. 631-639, does not authorize district courts to delegate
jury selection in felony trials to magistrates, and that the selection
of a jury by a magistrate is not harmless error if the defendant made a
timely objection. In a motion filed in the court of appeals after the
Gomez decision, respondent argued for the first time that the district
court committed reversible error in delegating jury selection to a
magistrate.
The court of appeals reversed respondent's convictions. The court
first held (App., infra, 7a-8a) that Gomez should be applied
retroactively to all cases pending on direct appeal at the time it was
decided. /2/ The court then held that respondent had not waived her
right to raise the Gomez claim by her failure to object in the district
court. The court reasoned that nothing in the Gomez opinion suggests
that "the Court intended to limit the broad, definitive rule it
announced" to cases, like Gomez, in which the defendant objected. Id.
at 9a.
The court of appeals held that, in any event, no objection was
necessary to preserve the claimed error because two prior decisons of
the Ninth Circuit had authorized magistrates to conduct voir dire in
felony trials. /3/ App., infra, 9a-10a. Thus, according to the court,
respondent faced a "solid wall of circuit authority" that "would have
prevented the district court from correcting the alleged error." Id. at
10a. In the court's view, to require a defendant to object to "aspects
of the trial that have already been approved by the court of appeals"
would encourage "defense counsel to burden district courts with repeated
assaults on then settled principles out of hope that those principles
will be later overturned." Ibid. (quoting Guam v. Yang, 850 F.2d 507,
512 n.8 (9th Cir. 1988) (en banc)).
The Ninth Circuit noted that the "solid wall of circuit authority"
exception to the contemporaneous-objection rule had been used only to
excuse a defendant's failure to object to a jury instruction. It
reasoned, however, that the rule announced in Gomez "touches on one of
the most 'basic rights' of the accused, the right to a fair and accurate
trial." App., infra, 10a. Thus, the court concluded that it would be
"at best unseemly, and at worst irresponsible, to penalize" respondent
for failing to object. Ibid. /4/
In Gomez v. United States, the defendants objected to the delegation
of jury selection to a federal magistrate. The district court overruled
that objection, and the Second Circuit affirmed. This Court granted
certiorari to decide whether the assignment of jury selection to a
magistrate "without the defendant's consent" violated the Federal
Magistrates Act, 28 U.S.C. 631 et seq. See 109 S. Ct. at 2239. The
Court held that presiding over jury selection at felony trials is not
one of the "additional duties" that may be delegated to magistrates
under 28 U.S.C. 636(b)(3). And the Court ruled that such a delegation,
over "the defendant's objection," cannot be harmless error. 109 S. Ct.
at 2248.
Since Gomez, the courts of appeals have struggled with the resolution
of direct appeals where the defendant did not object to the magistrate's
presiding at voir dire. /5/ The questions arising from Gomez are
especially important to the administration of the federal criminal
justice system because, prior to Gomez, many district courts frequently
delegated jury selection to magistrates. In addition, the circuits have
adopted several different approaches to post-Gomez appeals. The Second
and Seventh Circuits have held that an objection is required to preserve
the Gomez error for review. The Third Circuit has ruled that no
objection is needed to preserve the issue, but that there is no error of
law in the delegation of jury selection to a magistrate if the defendant
consents. And the Ninth Circuit, in this case, has held that defendants
raising a Gomez claim are not bound by the general principle that legal
issues are forfeited on appeal if not first raised in the district
court. We believe that this case is a good vehicle for resolving the
important issue whether a defendant's conviction must be reversed under
Gomez even though he did not object to the magistrate's presiding at
voir dire.
1. The issue presented is important to the federal criminal justice
system. Prior to Gomez, 51 district courts had local rules that
provided magistrates with the unqualified authority to conduct voir dire
in civil and criminal cases. See U.S. Br. at 22-23 & n.17 in Gomez,
Nos. 88-5014, 88-5158. Eighteen other districts had rules that allowed
magistrates to perform all duties conferred on them by 28 U.S.C. 636,
which was often construed to include conducting voir dire. Gomez U.S.
Br. at 23 & n.19. Undoubtedly, there are many defendants from all over
the country who did not object to a magistrate's conducting voir dire
and are thus in the same position as respondent.
The Ninth Circuit's decision in this case has particular significance
because certain district judges in that circuit routinely referred jury
selection to a magistrate. On the basis of its decision in this case,
the Ninth Circuit has already reversed the convictions of 15 other
defendants. See United States v. Thate, No. 89-10360 (Oct. 18, 1989);
United States v. Nguyen, No. 89-10235 (Oct. 18, 1989); United States v.
Kaleiwahea, No. 89-10225 (Sept. 29, 1989) (two defendants); United
States v. Coppola, No. 89-10214 (Oct. 18, 1989); United States v.
Kaili, No. 89-10113 (Sept. 13, 1989); United States v. Kuamsiri, No.
88-1432 (Sept. 13, 1989) (two defendants); United States v. Taylor, No.
88-1442 (Sept. 29, 1989); United States v. Holland, No. 88-1253 (Jan.
2, 1990) (three defendants); United States v. Reb'll, 887 F.2d 1009
(1989); United States v. Nittayanupap, No. 87-1395 884 F.2d 1318 (1988)
(two defendants). The United States Attorney for the District of Hawaii
filed in the court of appeals a declaration noting that the District of
Hawaii had delegated jury selection to magistrates in "virtually all"
criminal cases since the mid-1980s. App., infra, 13a. He stated that,
if the Ninth Circuit's decision in this case is not overturned, the
convictions of 48 defendants in the District of Hawaii alone "will be
reversed and remanded for retrial." Ibid. /6/ Thus, we believe that the
issue presented in this case, which would affect a large number of
criminal convictions in the Ninth Circuit and elsewhere, is sufficiently
important to warrant plenary review by this Court.
2. a. The court of appeals erred in not holding that respondent
forfeited her right to have a district judge preside over the jury
selection at her trial. This Court has emphasized that "(n)o procedural
principle is more familiar to (the) Court than that a * * * right may be
forfeited in criminal as well as civil cases by failure to make timely
assertion of the right before a tribunal having jurisdiction to
determine it." Yakus v. United States, 321 U.S. 414, 444 (1944). Accord
United States v. Frady, 456 U.S. 152, 162 (1982); United States v.
Socony-Vacuum Oil Co., 310 U.S. 150, 238-239 (1940). This rule
regarding the forfeiture of legal claims is embodied in Federal Rule of
Criminal Procedure 51. That rule abolished the historic use of
"exceptions" to preserve legal claims regarding a trial court's orders
or actions. But Rule 51 insists that a party make its objections and
desires known to the district court. An error is preserved under the
rule only if the party "makes known to the court the action which that
party desires the court to take or that party's objection to the action
of the court." /7/
This Court, of course, has applied the "raise it or forfeit
it" rule in many contexts. /8/ For example, in United States v. Gagnon,
470 U.S. 522 (1985), the district court held a conference in chambers
without the presence of the defendants. The defendants did not object,
but on appeal argued that the district court had violated their right
under Federal Rule of Criminal Procedure 43(a) to be present at all
stages of a criminal trial. This Court held that the defendants had
forfeited their rights under Rule 43 by failing to object at trial. 470
U.S. at 527-528. Likewise, in Levine v. United States, 362 U.S. 610
(1960), the Court ruled that the defendant had forfeited any due process
right to a public trial by not asking the district judge to open the
courtroom. Id. at 619. See also Segurola v. United States, 275 U.S.
106, 111-112 (1927) (Fourth Amendment challenge to the seizure of
evidence forfeited in the absence of a timely motion to suppress); 3A
C. Wright, Federal Practice and Procedure Section 842, at 287 (2d ed.
1982) (requirement that defendant object and express his preference
applies "to all kinds of rulings at the trial").
The reasons that the defendant must make his views known to the trial
court are clear. First, the defendant should not be able to pursue a
certain course for tactical reasons and, if convicted, later claim that
the course taken by the court was reversible error. See 3 W. LaFave,
Criminal Procedure Section 26.5, at 251 (1984); see also Wainwright v.
Sykes, 433 U.S. 72, 89 (1977). Second, and perhaps more important, the
requirement that the defendant make his views known to the trial court
greatly promotes judicial economy. See United States v. Smith, 490 F.2d
789, 794-795 (D.C. Cir. 1974); United States v. Bamberger, 456 F.2d
1119, 1131 (3d Cir. 1972), cert. denied, 413 U.S. 919 (1973); 3 W.
LaFave, supra, at 251. If the issue is raised in the trial court, the
trial judge may be able to resolve the matter to the defendant's
satisfaction. See United States v. Gagnon, 470 U.S. at 529. Or the
prosecutor might decide to forgo a particular course of conduct in order
to eliminate the possibility of inserting a reversible error into the
record. See generally Luce v. United States, 469 U.S. 38, 42 (1984);
Wainwright v. Sykes, 433 U.S. at 89. In either case, a contemporaneous
objection would eliminate the need for an appellate reversal and a
second trial on the same criminal charges.
In this case, there are two possible arguments to support
respondent's claim that she should be exempt from Rule 51. First, the
Ninth Circuit believed that she was not required to express her view
regarding jury selection because an objection would have been futile in
light of Ninth Circuit precedent. Second, respondent has contended that
the failure of the district judge to preside at voir dire was "plain
error" under Federal Rule of Criminal Procedure 52(b) and thus may be
noticed on appeal. Neither argument has merit.
b. The Ninth Circuit held that respondent was not required to express
a wish to have a district judge preside at voir dire because, in the
court's view, there was a "'solid wall of circuit authority' which would
have prevented the district court from correcting the alleged error."
App., infra, 10a (quoting Guam v. Yang, 850 F.2d 507, 512 n.8 (9th Cir.
1988)). There is reason to doubt whether "a solid wall of circuit
authority" is ever an exception to the requirement that an issue be
raised in the district court. Rule 51 does not expressly set out such
an exception. And this Court held in Engle v. Issaac, 456 U.S. 107
(1982), that contrary and binding state authority was not a sufficient
cause for a defendant's failure to present a constitutional objection to
a state court. In holding that the failure to object precluded federal
habeas review, the Court stated: (T)he futility of presenting an
objection to the state courts cannot alone constitute cause for a
failure to object at trial." Id. at 130.
Nevertheless, this case does not present the question whether a
defendant must make a clearly futile objection to an action of the
district court that is mandated by the court of appeals. If there is
such an exception, it is surely "very narrow." Guam v. Yang, 850 F.2d at
512 n.8. The exception would apply only in a case where an objection
would be pure ritual -- i.e., where the district judge is bound by
precedent in his circuit to follow a prescribed course of action. In
such a case, none of the reasons underlying Rule 51 would apply because
the defendant would not be in a position to make a tactical choice
(there would be only one available option) and the trial court would not
be free to correct any error (it would be bound by higher precedent).
Thus, the courts of appeals that have excused the failure to object on
the ground of a "solid wall of circuit authority" have done so in cases
in which the trial court's action was compelled. See, e.g., United
States v. Liquori, 438 F.2d 663, 665 (2d Cir. 1971); Martone v. United
States, 435 F.2d 609, 610-611 (1st Cir. 1970). /9/
In this case, however, the district court's action was not mandated
by binding circuit precedent. In United States v. Peacock, 761 F.2d
1313 (9th Cir.), cert. denied, 474 U.S. 847 (1985), and United States v.
Bezold, 760 F.2d 999 (9th Cir. 1985), cert. denied, 474 U.S. 1063
(1986), the Ninth Circuit held that the Federal Magistrates Act vested
district courts with discretion to delegate jury selection to
magistrates. Nothing in those decisions hinted that district judges
were required to -- or even should -- make such a delegation. Thus,
there plainly was not a "solid wall of circuit authority" preventing the
district court from conducting jury selection at respondent's trial.
Indeed, prior to Gomez there were examples where a district judge in
Hawaii would grant a defendant's request that the judge conduct voir
dire. See 87-1282 Gov't C.A. Supp. Br. at 6 (referring to United States
v. Rewald, Cr. 84-02417 (D. Haw.). /10/ Accordingly, Rule 51 required
respondent to "make() known to the court the action" that she desired in
order to preserve for appellate review her claim that the district judge
should have presided over jury selection.
The rationale underlying the rule requiring a litigant to make her
preferences known to the trial court is fully applicable in this case.
For tactical reasons, a defendant might prefer that a magistrate conduct
voir dire. There may be cases in which defense counsel believes that
the magistrate would be more willing than a district judge to allow
counsel to question prospective jurors. Or a particular defense lawyer
might believe that the magistrate's view of qualified jurors is more
favorable to the defendant than the district judge's view. In this very
case, there are reasons to believe that the defendant was quite happy to
have the magistrate preside at voir dire. The magistrate sustained
defense counsel's objection to a question proposed by the government,
and the magistrate asked an additional question of the venire at
respondent's request. Hence, respondent should not be able to remain
silent, proceed with jury selection before a magistrate who rules in her
favor twice, and later claim that the district court erred in not
conducting voir dire itself.
In sum, if respondent had wanted the district court to conduct voir
dire, she should have said so. Because she did not, this case is
exactly like many other cases in which the defendant's silence meant
that he forfeited the right on appeal to claim that the district court
erred in adopting a particular discretionary choice. See, e.g., United
States v. Kirkland, 637 F.2d 654 (9th Cir. 1980) (defendant could not
question joinder where he did not move for severance); United States v.
Brown, 493 F.2d 485 (5th Cir.) (defendant did not object to dispersal of
jury after final argument), cert. denied, 419 U.S. 865 (1974); United
States v. Woodner, 317 F.2d 649 (2d Cir.) (defendant failed to object to
manner in which jurors' hardship excuses were granted), cert. denied,
375 U.S. 903 (1963).
c. Federal Rule of Criminal Procedure 52(b) provides that "(p)lain
errors or defects affecting substantial rights may be noticed although
they were not brought to the attention of the (district) court."
Respondent has contended that the delegation of jury selection to a
magistrate is such a "plain error." /11/ That contention is also without
merit.
In United States v. Frady, 456 U.S. 152 (1982), the Court held that
Rule 52(b) is a narrow exception to the contemporaneous-objection rule
-- one that "is to be used sparingly, solely in those circumstances in
which a miscarriage of justice would otherwise result." Id. at 163 n.14.
The plain error rule should be used "to correct 'only particularly
egregious errors,' those errors that 'seriously affect the fairness,
integrity or public reputation of judicial proceedings.'" United States
v. Young, 470 U.S. 1, 15 (1985) (citations omitted). This stringent
test for "plain error" applies equally to all errors -- whether founded
upon the Constitution, a statute, or rule. See, e.g., id. at 16-17 &
n.13; Levine v. United States, 362 U.S. 610, 619 (1960).
The courts have consistently held that defendants have forfeited
important statutory and constitutional rights in cases in which there
was no miscarriage of justice. See, e.g., United States v. Figueroa,
818 F.2d 1020, 1025 (1st Cir. 1987) (defendant forfeited claim that he
was not brought before magistrate without unnecessary delay); United
States v. Bayko, 774 F.2d 516, 517-518 (1st Cir. 1985) (forfeited ex
post facto argument); United States v. Bascaro, 742 F.2d 1335, 1365
(11th Cir. 1984) (forfeited double jeopardy defense), cert. denied, 472
U.S. 1017 (1985); United States v. Coleman, 707 F.2d 374, 376 (9th
Cir.) (forfeited Fifth Amendment claim), cert. denied, 464 U.S. 854
(1983); United States v. Surridge, 687 F.2d 250, 255 (8th Cir.)
(forfeited Fourth Amendment objection), cert. denied, 459 U.S. 1044
(1982). /12/
Judged by the high "miscarriage of justice" standard, the district
court's delegation of jury selection to a federal magistrate was not
plain error in this case. Magistrates in the District of Hawaii had
gained substantial experience over the years in presiding at voir dire.
The record in this case shows that the magistrate gave routine
instructions to the prospective jurors and asked typical questions of
the venire. The magistrate gave the parties the number of peremptory
challenges allowed under Federal Rule of Criminal Procedure 24. See
4/27/87 Tr. 2. The record also shows that the magistrate sustained
respondent's only objection during voir dire, and he asked a question
requested by respondent. Respondent's counsel stated that he was
satisfied with the manner in which the jury was selected. 4/27/87 Tr.
71. The balance of petitioner's trial was conducted before the district
judge, and the evidence of petitioner's guilt was overwhelming.
Accordingly, the jury's guilty verdicts did not result in a miscarriage
of justice that may be corrected under Rule 52(b). See United States v.
Wey, No. 89-2106 (7th Cir. Feb. 15, 1990) (jury selection by magistrate
was not plain error); United States v. DeFiore, 720 F.2d 757 (2d Cir.
1983) (same), cert. denied, 466 U.S. 906 (1984); United States v.
Rivera-Sola, 713 F.2d 866 (1st Cir. 1983) (same).
3. The courts of appeals have taken divergent approaches to cases in
which the defendant did not object to a magistrate's presiding at voir
dire. As we have described, the Ninth Circuit in this case held that no
objection was necessary to raise the Gomez claim on appeal. The Second
Circuit, by contrast, has ruled that it will not reverse convictions
where the defendant did not object to the magistrate's role. In United
States v. Mang Sun Wong, 884 F.2d 1537 (1989), cert. denied, No. 89-5949
(Feb. 20, 1990), the Second Circuit refused to reverse a defendant's
conviction where he had given his "explicit consent" to "the
magistrate's selection of a jury." Id. at 1546. /13/ In United States
v. Vanwort, 887 F.2d 375 (1989), petitions for cert. pending, Nos.
89-1084, 89-6313, the Second Circuit, without expressly discussing the
plain error doctrine, extended its decision in Mang Sun Wong to a case
in which the defendants simply failed to object. The Seventh Circuit
recently agreed that it was not "plain error" for a court to delegate
jury selection to a magistrate in a case where the defendant did not
object. See United States v. Wey, No. 89-2106 (Feb. 15, 1990). /14/
The Third Circuit has taken a different approach but ultimately
reached the same result as the Second and Seventh Circuits. In
Government of the Virgin Islands v. Williams, 892 F.2d 305 (1989), the
Third Circuit first ruled that the defendant was not barred by the
contemporaneous objection rule from raising a Gomez issue on appeal.
The court reasoned that such an issue is in the nature of a
"jurisdictional objection" that may be raised at any time. Id. at 310.
Nevertheless, the Third Circuit concluded that there was no error in
that case because the Federal Magistrates Act permits a magistrate to
conduct voir dire if the defendant consents. Id. at 310-311. /15/
We believe that this case presents a suitable vehicle for resolving
two of the most important post-Gomez issues -- whether a defendant's
lack of objection should be excused on the ground of futility, and
whether the delegation of jury selection to a magistrate before Gomez
was "plain error" under Rule 52(b). The "futility" issue is not
squarely presented by a case from any other circuit, but it is important
because it affects so many convictions in the Ninth Circuit -- in
particular, almost every conviction in the District of Hawaii. And the
plain error question has widespread significance to many appellants
throughout the circuits who have raised a Gomez issue even though they
did not object at trial.
The petition for a writ of certiorari should be granted.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S. G. DENNIS, JR.
Assistant Attorney General
BRIAN J. MARTIN
Assistant to the Solicitor General
J. DOUGLAS WILSON
Attorney
FEBRUARY 1990
/1/ Count One of the indictment charged respondent with assault with
the intent to commit murder. The jury found her guilty of the
lesser-included offense of assault with a deadly weapon.
/2/ The government does not challenge the court of appeals' ruling on
that point. See generally Griffith v. Kentucky, 479 U.S. 314 (1987).
/3/ The two decisions were United States v. Peacock, 761 F.2d 1313
(9th Cir.), cert. denied, 474 U.S. 847 (1985), and United States v.
Bezold, 760 F.2d 999 (9th Cir. 1985), cert. denied, 474 U.S. 1063
(1986).
/4/ The court of appeals denied the government's petition for
rehearing with suggestion for rehearing en banc. App., infra, 15a.
/5/ The courts have agreed that the Gomez decision applies to all
cases that were on direct appeal at the time. App., infra, 7a-8a. The
government does not dispute that conclusion. See note 2, supra.
Because this case is on direct review, it does not present the question
whether Gomez applies as well to collateral attacks on convictions.
/6/ We are informed by the Criminal Division of the Department of
Justice that judges from several other jurisdictions often delegated
voir dire to a magistrate -- the District of Puerto Rico, the Eastern
District of New York, the Central District of Illinois, the Central
District of California, the Eastern District of Michigan, the District
of the Virgin Islands, and the District of Delaware.
/7/ Rule 51 excuses the lack of an objection if "a party has no
opportunity to object to a ruling or order."
/8/ Strictly speaking, Rule 51 sets forth a rule of forfeiture, not
waiver, although the courts often speak in terms of a defendant's
"waiver" of a legal claim. See Wangerin, "Plain Error" and "Fundamental
Fairness": Toward a Definition of Exceptions to the Rules of Procedural
Default, 29 De Paul L. Rev. 753, 757-758 (1980). The term "waiver"
often connotes the intelligent and knowing relinquishment of a right.
The forfeiture principle in Rule 51, by contrast, does not depend on the
defendant's state of mind when he failed to raise an issue in the trial
court. See Estelle v. Williams, 425 U.S. 501, 508 & n.3 (1976).
/9/ The Ninth Circuit itself recognized as much in Guam v. Yang,
supra, when it stated that this "narrow exception only applies * * *
when a wall of binding authority squarely precludes the trial court from
correcting an error." 850 F.2d at 512 n.8.
/10/ There are similar examples from other districts in which
magistrates ordinarily conducted voir dire. The panel in United States
v. Lopez-Pena, 890 F.2d 490 (1st Cir. 1989), reh'g granted (Feb. 9,
1990), described such a case in the District of Rhode Island.
/11/ The court of appeals did not expressly rest its judgment on that
ground, but did state that the Gomez Court apparently did not intend "to
limit the broad, definitive rule it announced to" a case where the
defendant objected to the magistrate's conducting voir dire. App.,
infra, 9a.
/12/ In Gomez, the Court held that the error of delegating jury
selection to a magistrate over the defendant's objection could not be
"harmless error." 109 S. Ct. at 2248. But it is well settled that the
plain error standard is a much more stringent test for a defendant to
satisfy. See United States v. Thame, 846 F.2d 200 (3d Cir.), cert.
denied, 109 S. Ct. 314 (1988); United States v. Silverstein, 732 F.2d
1338, 1349 (7th Cir. 1984), cert. denied, 469 U.S. 1111 (1985); United
States v. Blackwell, 694 F.2d 1325, 1341 (D.C. Cir. 1982). This is true
because there may be cases where it is impossible to say that an error
was harmless beyond a reasonable doubt but where it is clear that there
was no miscarriage of justice. See United States v. Thame, 846 F.2d at
207 ("Although we do not believe that the error was sufficiently minor
to be harmless beyond a reasonable doubt, we also do not believe that it
was sufficiently major that a miscarriage of justice will result if the
conviction is not reversed."). The difference in the two standards
reflects the fundamental premise of our adversarial system that
litigants must make their views known to the trial court.
/13/ Judge Altimari dissented because he believed that "a magistrate
has no power to seat a jury in a felony case with or without the
defendant's consent." 884 F.2d at 1546.
/14/ A panel of the First Circuit in United States v. Lopez-Pena, 890
F.2d 490 (1989), held that the delegation of jury selection to a
magistrate was not a plain error that required reversal in the absence
of an objection. Judge Aldrich dissented. On February 9, 1990, the
First Circuit vacated the panel decision and set the case for reargument
before the entire court.
/15/ Judge Mansmann concurred only in the judgment. She reasoned
that the district court erred in delegating jury selection to a
magistrate, but that there was no plain error requiring reversal in the
absence of an objection.
APPENDIX
GENERAL MOTORS CORPORATION, PETITIONER V. UNITED STATES OF AMERICA
No. 89-369
In The Supreme Court Of The United States
October Term, 1989
On Writ Of Certiorari To The United States Court Of Appeals For The
First Circuit
Brief For The United States
## review of proposed SIP revisions under Section
The opinion of the court of appeals (Pet. App. 2a-18a) is reported at
876 F.2d 1060. The opinion of the district court (J.A. 119-125) is
unreported.
The judgment of the court of appeals (Pet. App. 1a) was entered on
June 7, 1989. The petition for a writ of certiorari was filed on
September 5, 1989, and granted on December 4, 1989. The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
Pertinent provisions of the Clean Air Act, 42 U.S.C. 7401 et seq.,
are set out in the Appendix to petitioner's brief and in the Appendix to
this brief.
1. Whether a four-month time limit governs the Environmental
Protection Agency's (EPA's) review of proposed revisions to State
Implementation Plans (SIPs) under the Clean Air Act (42 U.S.C.
7410(a)(3)(A)).
2. Whether, if such a time limit is applicable, the proper remedy for
EPA failure to take final action on a SIP revision within four months is
to bar the United States from enforcing an existing SIP until EPA issues
a final decision on the proposed revision.
A. The Statutory Framework
1. In 1970, Congress enacted a comprehensive national program for
combating air pollution. Clean Air Act Amendments of 1970, Pub. L. No.
91-604, 84 Stat. 1676. Before 1970, the federal role had been limited,
and "the States generally retained wide latitude to determine both the
air quality standards which they would meet and the period of time in
which they would do so." Train v. Natural Resources Defense Council, 421
U.S. 60, 64 (1975). The results of that approach, however, were
"disappointing," and the 1970 Amendments "sharply increased federal
authority and responsibility in the continuing effort to combat air
pollution." Id. at 64. Although States continued to "have the primary
responsibility for assuring air quality within the entire geographic
area comprising such State" (Section 107(a) of the Clean Air Act, 84
Stat. 1678), they were now required to comply with specific federal
criteria concerning the content of the air standards and the timetable
for reaching them. Train, 421 U.S. at 64-65.
The basic regime for this new approach to air pollution was set forth
in Sections 109 and 110 of the revised Clean Air Act. Congress charged
the EPA Administrator with developing "national * * * ambient air
quality standards" (NAAQS). Section 109(a)(1), 84 Stat. 1679; 42
U.S.C. 7409(a)(1). /1/ The NAAQS were of two types -- primary (those
necessary "to protect the public health" (84 Stat. 1680)) and secondary
(those necessary "to protect the public welfare" (ibid.)). The EPA
Administrator was required to propose NAAQS for known air pollutants
within 30 days, and finalize the standards within 90 days thereafter.
Section 109(a)(1); 42 U.S.C. 7409(a)(1). The revised Act then required
each State to develop and submit to EPA, within nine months after
promulgation of the NAAQS, a state implementation plan (SIP) to achieve
and maintain the NAAQS within the State. Section 110(a)(1), 84 Stat.
1680; 42 U.S.C. 7410(a)(1). For its part, EPA was then required to
determine, within four months of the date required for submission of
original SIPs, whether a SIP met certain statutory requirements (Section
110(a)(2), 84 Stat. 1680; 42 U.S.C. 7410(a)(2)), including attainment
of applicable primary NAAQS, "as expeditiously as practicable" but
generally no later than three years from the date of approval of a SIP
(Section 110(a)(2)(A), 84 Stat. 1680; 42 U.S.C. 7410(a)(2)(A)).
The 1970 Amendments also set forth a procedure for SIP revisions.
The Act requires EPA to approve revisions to existing SIPs if it
determines that a revision meets the requirements applicable to original
SIPs, and that it was adopted by the State after notice and public
hearings. Section 110(a)(3), 84 Stat. 1681; 42 U.S.C. 7410(a)(3)(A).
/2/ Unlike the provision for review of original SIPs, the provision for
review of SIP revisions contains no express time limit. Moreover, the
1970 Amendments specified that, for purposes of the Act, "an applicable
implementation plan" is a plan which has been approved by EPA. Section
110(d), 84 Stat. 1682; 42 U.S.C. 7410(d).
The 1970 Amendments provided various enforcement mechanisms. The
revised Act empowers EPA to order sources of pollutants to comply with
"an applicable implementation plan" (Section 113(a), 84 Stat. 1686; 42
U.S.C. 7413(a)) and to seek injunctive relief against a source violating
such a plan or violating an EPA order (Section 113(b), 84 Stat. 1687;
42 U.S.C. 7413(b)). The Amendments also prescribed criminal penalties
for knowing violations of "applicable implementation plan(s)" and EPA
orders (Section 113(c), 84 Stat. 1687; 42 U.S.C. 7413(c)). In
addition, Congress authorized citizen suits for injunctions against
violators, in the absence of government enforcement (Section 304, 84
Stat. 1706; currently codified at 42 U.S.C. 7604).
2. In 1977, Congress again significantly amended the Clean Air Act.
Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685. The
legislation was, at least in part, a response to widespread failure to
meet the attainment deadlines in the 1970 Amendments. See, e.g., S.
Rep. No. 127, 95th Cong., 1st Sess. 12 (1977). See also Chevron U.S.A.
v. Natural Resources Defense Council, 467 U.S. 837, 847 (1984). Among
other provisions, the 1977 Clean Air Act Amendments added to the Act the
concept of a "nonattainment area" -- an area where air quality falls
short of NAAQS. Section 171(2), 91 Stat. 746; 42 U.S.C. 7501(2). The
Amendments required each State containing a nonattainment area to
prepare and secure EPA approval of a new SIP by July 1, 1979. Sections
110(a)(2)(I), 172(b), 91 Stat. 694, 746; 42 U.S.C. 7410(a)(2)(I),
7502(b). The deadline for attainment of the primary NAAQS in a
nonattainment area was extended to December 31, 1982. Section
172(a)(1), 91 Stat. 746; 42 U.S.C. 7502(a)(1). Further extensions were
permitted for "photochemical oxidants" (ozone) and carbon monoxide, but
only if the State demonstrated that attainment was not possible by 1982,
despite the implementation of all reasonably available measures, and
that attainment would be achieved "as expeditiously as practicable but
not later than December 31, 1987." Section 172(a)(2), 91 Stat. 746-747;
42 U.S.C. 7502(a)(2). /3/ The nonattainment area SIPs, moreover, were
required to contain specific provisions designed to achieve NAAQS as
expeditiously as possible. See Chevron, 467 U.S. at 849. To this end,
the revised Act required that the plan revisions must "provide for the
implementation of all reasonably available control measures as
expeditiously as practicable" and require, in the interim, "reasonable
further progress" toward reductions in emissions. Section
172(b)(2)-(3), 91 Stat. 747; 42 U.S.C. 7502(b)(2)-(3).
The 1977 Amendments also strengthened the Act's enforcement
provisions. Congress authorized EPA to seek civil penalties; the
Administrator could now bring an action in district court for civil
penalties of up to $25,000 per day for violations of various provisions
of the Act, including violations of an "applicable implementation plan."
Section 113(b), 91 Stat. 704; 42 U.S.C. 7413(b). In determining the
amount of a civil penalty, moreover, the district court is directed to
"take into consideration (in addition to other factors) the size of the
business, the economic impact of the penalty on the business, and the
seriousness of the violation." Ibid. Congress also gave the EPA
additional authority to impose administrative noncompliance penalties;
the Administrator could now assess administratively a noncompliance
penalty against any "major stationary source" in violation of SIP
emission limits. Section 120, 91 Stat. 715-719; 42 U.S.C. 7420. /4/
The penalty begins to accrue when EPA issues a Notice of Noncompliance
(Section 120(d)(3)(C), 91 Stat. 718; 42 U.S.C. 7420(d)(3)(C)), and is
intended to remove the economic benefit of delayed compliance and place
polluters on the same economic footing as those who had limited their
emissions through increased anti-pollution expenditures. Section
120(d)(2)(A), 91 Stat. 718; 42 U.S.C. 7420(d)(2)(A). See also H.R.
Rep. No. 294, 95th Cong., 1st Sess. 72 (1977).
B. The Proceedings In This Case
1. The entire Commonwealth of Massachusetts is a nonattainment area
for the NAAQS regarding ozone. See 40 C.F.R. 81.322; J.A. 95. In
1980, EPA approved Massachusetts' proposed nonattainment area SIP. This
SIP required painting operations at automobile assembly plants to meet
increasingly stringent limits on emissions of volatile organic compounds
(VOCs), which are substances that react with other chemicals in the
atmosphere to form ozone. /5/ Full compliance was required by December
31, 1985. Petitioner's plant in Framingham, Massachusetts is the only
automobile assembly plant in the State. Pet. App. 6a; J.A. 29.
2. a. On October 20, 1981, EPA published a policy statement
discussing the automobile industry's development of new technologies for
reducing VOC emissions, including conversion from lacquer paints to the
basecoat/clearcoat process (BC/CC). 46 Fed. Reg. 51,386-51,388; J.A.
30-37. EPA announced that it would entertain proposed SIP revisions
intended to allow automakers to install new technology; it would extend
the date for compliance until 1986, with some plants requiring until
1987 to convert. J.A. 33-34. EPA cautioned, however, that SIP
revisions would need to assure continued compliance with Sections 110
and 172 (J.A. 30); Section 172 requires, among other things, "the
implementation of all reasonably available control technology as
expeditiously as practicable" and "reasonable further progress" toward
attainment "in the interim." Section 172(b)(2)-(3); 42 U.S.C.
7502(b)(2), (3). /6/
b. Within ten days of EPA's policy statement, petitioner submitted
requests consistent with the policy statement for three of its assembly
plants in other States; it did not, however, submit such a request for
its Framingham plant. Pet. App. 6a. More than three years later, in
November 1984, petitioner requested that the State extend the December
31, 1985, compliance date by two years (to December 31, 1987) to give
petitioner additional time to install emission controls on its lacquer
coating lines. J.A. 38-40. The State did not, however, submit the
request as a SIP revision to EPA.
Eight months later, in June 1985, petitioner changed its plans. At
this point -- six months before the ozone emission compliance deadline
that had been in effect in Massachusetts for almost five years --
petitioner proposed converting its Framingham plant to the
basecoat/clearcoat process. It requested a delay of the SIP standard
until the end of 1987 (the same date that it had requested for its
earlier emission control proposal). J.A. 41-45.
c. Massachusetts provided public notice and held a hearing on
December 16, 1985, regarding petitioner's request for an extension of
the SIP compliance deadline. At this hearing, an EPA representative
expressed reservations about the proposed extension because, among other
problems, the proposal made no attempt to limit emissions during the
extension period. J.A. 61-62. On December 30, 1985, one day before the
final compliance deadline in the SIP that had been in place since
October 1980, Massachusetts submitted to EPA a proposed SIP revision
extending petitioner's compliance date for ozone emissions on automobile
coating lines to August 31, 1987. J.A. 50-74; Pet. App. 6a-7a.
3. a. EPA's Region I office began reviewing the proposed SIP
revision. At the same time, EPA, the Commonwealth, and petitioner also
undertook negotiations in an attempt to resolve petitioner's
noncompliance with the existing SIP by means of a Delayed Compliance
Order under Section 113(d) of the Act (42 U.S.C. 7413(d)). Pet. App.
7a. Such an Order would have allowed an extension of the compliance
date while requiring an enforceable schedule of steps toward compliance
and protection from unnecessary emissions during the interim, neither of
which was required by Massachusetts' proposed SIP revision.
b. On May 30, 1986, five months after its submission of the proposed
SIP revision, Massachusetts requested that EPA delay action on the SIP
revision until June 20, 1986, to allow negotiations to continue on a
Delayed Compliance Order, which the Commonwealth considered a better way
to resolve the matter. J.A. 89-90. Shortly after that period, on July
2, 1986, EPA Region I sent a draft proposal to disapprove the SIP
revision to EPA Headquarters. J.A. 88.
c. On August 14, 1986, EPA sent petitioner a notice of violation.
The notice informed petitioner that it was in violation of the
applicable SIP. J.A. 75-82. EPA pointed to data establishing that,
from January 1, 1986 to June 30, 1986, the VOC content in petitioner's
operations at the Framingham plant considerably exceeded the SIP's
emission limits. J.A. 79. /7/ EPA's cover letter noted the ongoing
negotiations between EPA, the State, and petitioner regarding a Delayed
Compliance Order, but warned that, if no agreement was reached in 30
days, EPA would "decide which other enforcement options to pursue under
Sections 113 and 120 of the Clean Air Act." J.A. 75-76. EPA urged
petitioner to confer with the Agency and "discuss the most expeditious
method * * * to come into compliance with the applicable SIP." J.A. 76.
d. The negotiations regarding the Delayed Compliance Order did not
bear fruit, and the draft proposal to disapprove the SIP revision, which
had been sent on July 2, 1986, was accordingly reviewed by EPA
Headquarters. Pursuant to Executive Order 12291, it was also submitted
to the Office of Management and Budget (OMB). J.A. 96. On December 1,
1986, EPA's notice of proposed disapproval was published in the Federal
Register. 51 Fed. Reg. 43,394; J.A. 91-96. In the Notice, EPA pointed
out (J.A. 93-95) that the proposed SIP revision failed to meet several
of the criteria for deferral established in EPA's 1981 policy statement,
and in particular failed to require the implementation of reasonably
available control technology as expeditiously as practicable, as
required by the Act (Section 172(b)(2), (3); 42 U.S.C. 7502(b)(2),
(3)).
e. On June 30, 1987, following receipt of public comment on the
proposed SIP revision, Region I transmitted to EPA Headquarters a draft
of a final decision disapproving the proposed SIP revision. J.A. 88.
This draft was reviewed at EPA Headquarters and again at OMB. 53 Fed.
Reg. 36,014. On May 5, 1988, petitioner submitted 405 pages of comments
and attachments regarding the proposed disapproval, to which EPA
responded in detail. See 53 Fed. Reg. 36,012 n.1; General Motors v.
Reilly, No. 88-2123 (1st Cir.) (C.A. Dkt. Nos. 69-111). On September 4,
1988, EPA issued a final decision disapproving the proposed SIP
revision; the decision was published in the Federal Register on
September 16, 1988. 53 Fed. Reg. 36,011; see also Pet. App. 7a-8a.
/8/
2. On August 17, 1987, the United States filed a civil enforcement
action against petitioner under Section 113 of the Act (42 U.S.C. 7413).
J.A. 7-13. The complaint alleged continuous violations by petitioner
-- beginning on January 1, 1986 -- of the VOC emission standards of the
existing SIP. J.A. 11. EPA had sent a notice of violation to
petitioner almost exactly one year before filing the complaint. EPA had
published (some eight months earlier) its proposed disapproval of the
SIP revision in the Federal Register; however, EPA Headquarters had not
yet acted on Region I's draft final decision of disapproval.
On petitioner's motion, the district court dismissed the action in
its entirety. The district court construed Section 110(a)(3) to impose
a four-month time limit on EPA's review of a SIP revision, and held
that, because it exceeded that deadline, EPA was barred from enforcing
the existing SIP for any violations that occurred before final agency
action on the proposed SIP revision. J.A. 119-125.
3. The court of appeals reversed and remanded for further
consideration. The court first agreed with the district court that the
four-month deadline on EPA's review of original SIPs should also apply
to the review of SIP revisions. Although it found the question
"admittedly * * * a close one" (Pet. App. 11a), the court concluded that
Congress would not have wanted the States' policy choices "to be held
hostage to the EPA's schedule." Id. at 12a. The court emphasized that,
"by imposing a four-month deadline on the EPA," it avoided "the
possibility that the Agency would have assigned a lower priority to SIP
revisions from First Circuit states than to those from states in
circuits that had imposed a deadline." Ibid.
The court of appeals disagreed, however, with the Fifth Circuit's
holding in American Cyanamid Co. v. EPA, 810 F.2d 493 (1987), that EPA
is barred from enforcing an existing SIP for the interval between the
end of the four-month period and the time when the agency acts on the
proposed SIP revision. The court reasoned that an enforcement bar is
too drastic a remedy for agency delay, especially since it penalizes the
public's interest in clean air. Pet. App. 14a. The court also found it
likely that EPA would frequently need longer than four months to issue a
considered ruling, and would therefore miss the deadline even with the
incentive of an enforcement bar. Id. at 13a-14a. At the same time, the
court rejected the D.C. Circuit's alternative approach in Duquesne Light
Co. v. EPA, 698 F.2d 456 (1983). As the court explained, the D.C.
Circuit had held that, if a SIP revision is ultimately rejected,
"penalties may be assessed retroactively, with interest, for the entire
period after the deadline." Pet. App. 13a. Seeking to "steer a middle
course between these two extremes" (Pet. App. 14a), the court concluded
that the appropriate remedies for agency inaction are those provided by
the Clean Air Act itself: (1) a suit to compel Agency action under
Section 304(a)(2) (42 U.S.C. 7604(a)(2)), or (2) a request pursuant to
Section 113(b) (42 U.S.C. 7413(b)) for reduction or elimination of
penalties during any period in which unreasonable agency delay resulted
in prejudice. Id. at 14a-15a.
With respect to the enforcement action in this case, the second
remedy was applicable. The court noted that Section 113(b) directs
district courts, in assessing any penalties, to "take into consideration
(in addition to other factors) the size of the business, the economic
impact of the penalty on the business, and the seriousness of the
violation." Pet. App. 15a. Thus, the district court could "decline to
award penalties for * * * unwarranted delay." Ibid. The court of
appeals noted, "if on remand in this case, the district court finds that
(petitioner) was prejudiced by the Agency's lengthy review and that the
delay was not justified or that some portion of the delay was not
justified, it may reduce the penalties in a manner it sees fit." Ibid.
The court thus remanded to permit the district court to consider
petitioner's claims regarding "the equities of this case" (id. at 17a)
and for assessment of appropriate penalties, if any. /9/
Section 113 of the Clean Air Act expressly authorizes EPA to bring
actions for injunctive relief and civil penalties against any person in
violation of "any requirement of an applicable implementation plan." 42
U.S.C. 7413(a)(1). Petitioner seeks a court-imposed rule that would
limit this explicit grant of authority by barring enforcement whenever a
proposed revision to the applicable SIP has been submitted to EPA and
the agency has not taken final action on the proposal within four
months. The court of appeals properly rejected this attempt to impose a
limit which Congress never prescribed on EPA's enforcement authority.
1. Petitioner's argument begins with the flawed premise that the
four-month limit for review of original SIPs under Section 110(a)(2)
applies to review of proposed SIP revisions under Section 110(a)(3)(A).
The language of the statute does not support this interpretation.
Section 110(a)(3)(A) requires that the proposed revision "meet() the
requirements" of an original SIP (42 U.S.C. 7410(a)(3)(A)); it does not
require that EPA act on a proposed revision within four months. The
four-month time limit for review of original SIPs was part of an
elaborate timetable established in 1970 to ensure that emission
limitations, many of which were already formulated, could be put into
place with maximum speed. There is no evidence that Congress expected
or required equal haste for SIP revision proposals. The latter
frequently involve relaxation or delay of strict emission control
requirements. These are, obviously, complicated issues requiring
careful scrutiny by the agency. Rather than the four-month time limit,
the statutory standard for agency timeliness in acting on SIP revision
proposals is the Administrative Procedure Act's standard of
reasonableness (5 U.S.C. 555 and 706(1)). And, in view of the
applicable administrative and statutory requirements, as well as the
nature and complexity of the issues, review of SIP revisions for longer
than four months is often entirely reasonable.
2. Even if a four-month time limit obtains for review of SIP
revisions, neither the statute nor the legislative history reveals any
intent to eviscerate EPA's authority, after expiration of that period,
to enforce the statute. Section 113 clearly states that EPA may bring
an action to enforce the "applicable implementation plan" (42 U.S.C.
7413(b)(2)); this Court in Train v. Natural Resources Defense Council,
421 U.S. 60, 92 (1975), and many lower courts, have made clear that the
existing SIP is the applicable plan until both the State and EPA have
approved a revision. See Section 110(d); 42 U.S.C. 7410(d).
Accordingly, three Circuits -- the First, Sixth, and D.C. Circuits --
have now concluded that EPA does not lose authority to enforce the
existing SIP even if a SIP revision has been pending for more than four
months.
The Fifth Circuit's contrary conclusion in American Cyanamid is
unsupported by statutory language or legislative history, and conflicts
with this Court's decision in Brock v. Pierce County, 476 U.S. 253
(1986). Brock makes clear that courts should not assume that Congress
intends agencies to lose their power to act when they fail to meet
statutory deadlines, particularly when there are "less drastic" remedies
available. As the court below found, less drastic remedies are
available to deal with untimely agency action: either a suit by the
State or the source to compel agency action, or a request by the source
for a reduction of civil penalties where agency delay has led to
prejudice.
Petitioner's asserted policy reasons for an enforcement bar cannot
override the statutory language and are, in any event, unpersuasive.
The States' role under the Clean Air Act is adequately protected by the
remedies specifically provided by Congress to address agency delay;
there is no need to infer an additional remedy not provided by statute
and no warrant for doing so. Indeed, barring the United States from
enforcing the applicable SIP would thwart the clear congressional intent
to remove incentives for delaying compliance with the strict deadlines
of the Act. What is more, a judicially-created bar would also disserve
the States' and the public's interest in cleaner air.
Nor is an enforcement bar needed to address the possibility that an
enforcement action might undermine even-handed consideration of a
proposed SIP revision. That speculative possibility does not stem from
agency delay, but from Congress's decision to assign both enforcement
and SIP review responsibilities to the same agency. Even if a decision
on a SIP revision were to be improperly influenced by the pendency of an
enforcement action, Congress provided an adequate remedy in the form of
direct review of the SIP denial in the courts of appeals, a remedy which
petitioner has invoked in this case. Any possible prejudice suffered by
a defendant in an enforcement action by reason of EPA delay in reviewing
a SIP revision can be addressed by the court in assessing penalties.
The argument that an enforcement bar is needed to punish the agency for
delay also fails, because it is the public, not EPA, that would be hurt
if applicable SIPs could not be enforced.
Petitioner's policy arguments not only fail to persuade, they
misconceive the role of the courts in interpreting statutes. Where, as
here, Congress has conferred upon an agency an explicit mandate to
enforce "applicable implementation plans," it is not the appropriate
province of the judiciary to carve out exceptions in order to create
policy-based incentives for administrative management.
I. THE FOUR-MONTH LIMIT FOR REVIEW OF ORIGINAL SIPS UNDER SECTION
110(a)(2) DOES NOT APPLY TO REVIEW OF PROPOSED SIP REVISIONS UNDER
SECTION 110(a)(3)(A)
As the court of appeals recognized, Section 110(a)(3)(A), which
governs review of SIP revisions, does not "contain language explicitly
imposing a four-month deadline on the Agency." Pet. App. 5a. Stating
that the question is "a close one" (id. at 11a), that it is "unlikely *
* * that Congress * * * intended for the states' legitimate policy
choices to be held hostage to the EPA's schedule" (id. at 12a), and that
the States in the First Circuit thus would not be disadvantaged (ibid.),
the court agreed with the rule adopted in other Circuits applying the
four-month time limit for consideration of original SIPs in Section
110(a)(2) (42 U.S.C. 7410(a)(2)) to EPA's consideration of SIP revisions
in Section 110(a)(3)(A) (42 U.S.C. 7410(a)(3)(A)). /10/ In so
concluding, the court erred. In light of the fact that the statutory
language does not provide a four-month deadline and the further fact
that in the Clean Air Act, Congress was explicit about other deadlines,
the application of the Section 110(a)(2) deadline for initial agency
approval of SIPs as a Section 110(a)(3)(A) deadline for subsequent
agency review of SIP revisions is unwarranted. See Russello v. United
States, 464 U.S. 16, 23 (1983) ("'(W)here Congress includes particular
language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.'"). /11/
1. As always, "'the starting point for interpreting a statute is the
language of the statute itself.'" Hallstrom v. Tillamook County, 110 S.
Ct. 304, 308 (1989). Indeed, the text itself is the critical element of
the interpretive inquiry, since it is the text itself which is law. In
this case, the pertinent textual analysis is of Section 110(a)(2), which
governs original SIP submissions and explicitly imposes a four-month
deadline on agency review, and Section 110(a)(3)(A), which governs SIP
revisions and imposes no such deadline.
Section 110(a)(2) contains two sentences. The first provides, "The
Administrator shall, within four months after the date required for
submission of a plan under paragraph (1) (Section 110(a)(1); 42 U.S.C.
7410(a)(1)), approve or disapprove such plan, or any portion thereof."
The four-month review period thus begins with the date specified in
Section 110(a)(1) -- "nine months after the promulgation of a national
primary ambient air quality standard" or "a national ambient air quality
secondary standard." 42 U.S.C. 7410(a)(1). Both Section 110(a)(1) and
Section 110(a)(2) were part of an integrated timetable established in
1970 to ensure that delays in formulating the original SIPs did not
interfere with the 1975 attainment deadline. /12/
The second sentence of Section 110(a)(2) provides: "The
Administrator shall approve such (state implementation) plan, or any
portion thereof, if he determines that it was adopted after reasonable
notice and hearing and that" specified requirements are satisfied, as
set forth in Section 110(a)(2)(A)-(K). These requirements are the heart
of the federal SIP review process, establishing the minimum standards
for all state plans.
Section 110(a)(3)(A), which governs SIP revisions, provides in its
entirety, that
(t)he Administrator shall approve any revision of an
implementation plan applicable to an air quality control region if
he determines that it meets the requirements of paragraph (2)
(Section 110(a)(2); 42 U.S.C. 7410(a)(2)) and has been adopted by
the State after reasonable notice and public hearings.
The phrasing of this provision precisely parallels the second sentence
of Section 110(a)(2). Both refer to the substantive standards that must
be satisfied before a plan or revision is approved, and to the
requirement that the State provide notice and public hearing. But
nothing in Section 110(a)(3)(A) can properly be read as referring to or
incorporating the first sentence of Section 110(a)(2), which requires
EPA to act within four months "after the date required for submission of
a plan under" Section 110(a)(1). /13/ Indeed, the language of the
Section 110(a)(2) deadline -- "within four months after the date
required for submission of a plan" -- makes no sense in the context of a
SIP revision because revisions are not "required." Although petitioner
reads Section 110(a)(3)(A) as if it said that "the Administrator shall
approve or disapprove any revision no later than four months after its
submission," the statute in fact contains no such language. /14/
2. Congress in 1970 desired to put the basic framework of the Act --
the NAAQS and the original state plans implementing them -- in place as
quickly as possible. /15/ The four-month deadline for approval of
original SIPs was part of a scheme enacted by Congress to get air
pollution controls in place swiftly. /16/ Meeting short deadlines for
these initial steps was considered possible in part because many States
had already developed ambient air standards for metropolitan areas, some
of those standards had already received federal approval, and various
implementation plans were already in preparation or had been completed
under earlier versions of the Clean Air Act. /17/
There is no evidence, however, that Congress expected the same short
deadlines to apply once the original SIPs were in place to protect
public health. Indeed, the SIP revision authority in Section 110(a)(3)
was enacted virtually without comment. The logical inference is that,
once the protective framework of original SIPs was in place, the States
and EPA would not be expected to maintain the same hectic pace on
matters like SIP revisions, which often, as in the case here, involve
relaxation or delay of strict emission control requirements.
3. Petitioner contends (Br. 13 n.14) that the Court should use
Section 110(g) (42 U.S.C. 7410(g)) as an aid to construction of Sections
110(a)(2) and 110(a)(3)(A). This provision, added by the 1977
Amendments, permits the Governor of a State to issue a four-month
suspension of portions of a SIP where the State has submitted a SIP
revision "which the Administrator has not approved or disapproved under
this section within the required four month period," and which is
necessary to prevent substantial unemployment resulting from a plant
closing. 42 U.S.C. 7410(g). Clean Air Act Amendments of 1977, Pub. L.
No. 95-95, Section 107(b), 91 Stat. 692-693. By its terms, this
provision does not in any way amend Section 110(a)(2) or Section
110(a)(3)(A). Moreover, there is no legislative history that suggests,
and no reason to believe, that the new provision was designed to clarify
the relationship between Sections 110(a)(2) and 110(a)(3)(A), or to
impose a new deadline on SIP revision processing.
Petitioner's position is apparently that reference in the new
provision to "the required four month period" is an indication that
Congress, in 1977, interpreted the 1970 Amendments as having imposed
such a time limit on SIP revision determinations. Even if there were
any evidence that Congress was interpreting the 1970 Amendments, the
views of the 1977 Congress would obviously not be probative of the
legislative intent in 1970. /18/ But there is no such evidence. The
reference to the "required four month period" was inserted by the
Conference Committee, and the legislative history of the 1977 Amendments
does not explain its meaning. See H.R. Conf. Rep. 564, 95th Cong., 1st
Sess. 125 (1977). The phrase may well be a residual reference to the
four-month period within which the Administrator was required to approve
or disapprove a "temporary emergency suspension" under the House version
of the legislation, /19/ and Section 110(g) is most reasonably
interpreted as contemplating a four-month period for EPA review of such
emergency SIP revisions. That interpretation reasonably reconciles all
pertinent textual provisions, and is not precluded by any language of
the statute or expression of congressional intent. Indeed, the focus of
the drafters of subsection (g) was on situations of economic emergency;
there is simply no evidence that they intended to speak to the
day-to-day processing of routine requests for extensions or variances.
4. Even without a four-month deadline, EPA remains subject to
statutory requirements of timeliness. The Administrative Procedure Act
requires agencies to conclude matters "within a reasonable time" (5
U.S.C. 555) and provides a remedy for agency action "unreasonably
delayed" (5 U.S.C. 706(1)). See Costle v. Pacific Legal Foundation, 445
U.S. 198, 220 n.14 (1980). Measured by this statutory requirement, EPA
review of SIP revision proposals for longer than four months is -- in
the usual case -- not unreasonable.
In most instances, there is no realistic possibility that EPA can
appropriately take final action on proposed SIP revisions within four
months. The Administrative Procedure Act's (APA) requirement for notice
and public comment alone is likely to use up most or all of the allotted
period. See Buckeye Power, Inc. v. EPA, 481 F.2d 162, 170-171 (6th Cir.
1973) (APA notice and comment requirements apply to EPA decision on
SIPs), cert. denied, 425 U.S. 934 (1976); United States Steel Corp. v.
EPA, 605 F.2d 283, 288 (7th Cir.) (public comment and response to
comments can take several months), cert. denied, 444 U.S. 1035 (1979).
Requests to extend the customary 30-day comment period are not unusual
and are routinely granted. As befits the purposes served by public
participation, additional comments during such an extension may
considerably enhance the decisionmaking process. See, e.g., United
States v. National Steel Corp., 767 F.2d 1176, 1181 (6th Cir. 1985)
(comment period extended and SIP revision rejected because additional
comments established inaccuracies in methodology used to justify
proposed revision). Moreover, the agency must "respond in a reasoned
manner to the comments received, to explain how the agency resolved any
significant problems raised by the comments, and to show how that
resolution led the agency to the ultimate rule." Rodway v. Dep't of
Agriculture, 514 F.2d 809, 817 (D.C. Cir. 1975). In many cases, as here
(53 Fed. Reg. 36,012 n.1 (1988)), comments are received after the close
of the comment period, and considered and addressed by the Agency. To
have any hope of meeting a four-month deadline, EPA would have to issue
a proposed decision almost immediately after receipt of the SIP
revision. That would hardly be conducive to reasoned decisionmaking,
and indeed would subvert the important supervisory role that Congress
intended EPA to carry out. Nor would such precipitous action further
the federal-state partnership embodied in the Act. In some cases, it
makes more sense to negotiate with a State to bring about an approvable
SIP revision, rather than deny an inadequate proposal outright.
Additionally, a State may want EPA to hold a matter in abeyance. In
this very case, for instance, the Commonwealth requested EPA to delay
processing of the SIP revision while it attempted to negotiate a Delayed
Compliance Order with petitioner. J.A. 89-90. If a strict four-month
rule applied, EPA would have to reject even reasonable requests by
States for staying its hand. There is no reason to believe that
Congress would have intended to usher in such an implausible regime.
Several other factors likewise contribute to the time required for
SIP revision review. Because the various States use widely different
methodologies (see J. Bromberg, Clean Air Act Handbook 110-111 (1985)),
primary review of SIP revisions is carried out by the regional offices
of EPA which are familiar with the situation in each State. In many
instances, however, SIP revision proposals will raise policy questions
with nation-wide implications; hence, review by EPA Headquarters is
also important. J.A. 98; see also State Implementation Plan Processing
Reform; Notice of Procedural Changes, 54 Fed. Reg. 2214, 2215 (1989)
(SIP Processing Reform). Disapprovals and partial approvals also must
undergo Office of Management and Budget review under Executive Order
12,291, 46 Fed. Reg. 13,193 (1981), before being published as final
decisions in the Federal Register. See SIP Processing Reform, 54 Fed.
Reg. 2215 (1989). This OMB review can take several months. /20/
Furthermore, the analysis required to evaluate the merits of a
proposed SIP revision is frequently complex and resource intensive. For
example, a typical SIP revision for a single source of volatile organic
compounds in an ozone nonattainment area (the case here) requires EPA to
compare the source's proposed control technology with control technology
of which EPA is aware for other similar sources, and determine whether
the compliance schedule is as expeditious as practicable in light of the
proposed technology, alternative technologies, and special circumstances
at the source. 42 U.S.C. 7502(b)(2); J.A. 84-85. EPA must determine
whether the proposed revision will assure that the State will continue
to make "reasonable further progress" each year that is "sufficient * *
* to provide for attainment of the applicable national ambient air
quality standard by the date required." 42 U.S.C. 7501(1), 7502(b)(3).
This requires an analysis of the State's reported reductions in
emissions and the effect the proposed revision will have on continued
reductions, which typically requires complex mathematical modelling.
J.A. 84-85. /21/
Contrary to petitioner's repeated suggestion that EPA has been either
indifferent or willfully dilatory with regard to SIP revision review,
/22/ the issue of delays in SIP revision review has been a subject of
continuing concern to the Agency. Between 1983 and 1989, the Agency
processed more than 1600 SIP-related actions -- an average of almost 350
per year. SIP Processing Reform, 54 Fed. Reg. 2215. In 1985, the
Agency issued internal guidelines setting a 14-month timetable for
action on most proposed SIP revisions. Office of Air Quality Planning
and Standards, EPA, Guidelines on Processing SIP Revisions (And 111(d)
Plans) (1985) (J.A. 103-111). The Agency concluded that this guideline
represented a reasonable accommodation of the public interest in (and
the Agency's statutory responsibility for) careful review of SIP
revision proposals, as well as States' and sources' interest in
expeditious review. /23/ Because the Agency remained concerned about
continuing problems of delays, however, EPA announced in 1989 extensive
changes in SIP revision review to expedite Agency review and achieve
better compliance with the Agency's own timeliness goals. See SIP
Processing Reform, 54 Fed. Reg. 2214-2226 (1989). After notice and
comment on these changes, EPA has now issued a final rule and revised
guidelines regarding its SIP review procedures. The revised procedures
recognize that SIP revision proposals vary widely, and set forth a
sliding scale of three months to fourteen months for Agency review of
most SIP revisions, depending on their nature and complexity (which in
some instances may necessitate a period of longer than fourteen months).
See 55 Fed. Reg. 5824, 5826-5828 (1990). /24/
It may be that, despite these Agency efforts, particular SIP revision
reviews have been subject to unwarranted delay, or will be in the
future. The pertinent statutory measure, however, is the APA's standard
of reasonableness, not a four-month deadline that is not to be found in
the language of Section 110(a)(3)(A). /25/
II. EVEN IF THERE IS A FOUR-MONTH TIME LIMIT FOR REVIEW OF SIP
REVISION PROPOSALS, EPA IS NOT BARRED FROM ENFORCING THE TERMS OF AN
EXISTING SIP ONCE THAT DEADLINE HAS PASSED
If (contrary to our view) the Section 110(a)(2) deadline does apply
to Section 110(a)(3)(A) revisions, the court of appeals nonetheless
correctly concluded that EPA's failure to meet the deadline should not
lead to a bar of enforcement actions for violations of the original SIP
until the Agency's final action on the proposed revision. A claim that
a statute's enforcement should be barred because an agency has missed a
deadline for regulatory action must be resolved by "examin(ing)
carefully the statutory language and legislative history to determine
whether Congress did indeed desire this somewhat incongruous result."
Brock v. Pierce County, 476 U.S. 253, 258 (1986). Neither the statute
nor the legislative history reveals any congressional intent to bar
enforcement when EPA fails to act within a specified period; instead,
as the court of appeals concluded, less drastic remedies to address
problems of Agency delay are already provided by statute.
A. There Is No Support In The Language Or Legislative History Of The
Clean Air Act For An Enforcement Bar
The language of the Clean Air Act plainly states that EPA may bring
an action for penalties or injunctive relief whenever a person is in
violation of any requirement of an "applicable implementation plan."
Section 113(b)(2); 42 U.S.C. 7413(b)(2). /26/ Without question, the
existing SIP remains the "applicable implementation plan" even after the
State has submitted a proposed revision. See Section 110(d); 42 U.S.C.
7410(d) ("For purposes of this chapter, an applicable implementation
plan is the imlementation plan, or most recent revision thereof, which
has been approved under (Section 110(a); 42 U.S.C. 7410(a)) or
promulgated under (Section 110(c); 42 U.S.C. 7410(c)) and which
implements the requirements of this section." /27/ This Court has
emphasized the continuing applicability of an existing SIP while a SIP
revision proposal is pending:
(A) polluter is subject to existing requirements until such time
as he obtains a variance, and variances are not available under
the revision authority until they have been approved by both the
State and the (Environmental Protection) Agency. Should either
entity determine that granting the variance would prevent
attainment or maintenance of national air standards, the polluter
is presumably within his rights in seeking judicial review. This
litigation, however, is carried out on the polluter's time, not
the public's, for during its pendency the original regulations
remain in effect, and the polluter's failure to comply may subject
him to a variety of enforcement procedures.
Train v. Natural Resources Defense Council, 421 U.S. 60, 92 (1975). The
courts of appeals have similarly recognized that the approved SIP is the
applicable implementation plan even after a SIP revision has been
proposed. /28/
In American Cyanamid, the Fifth Circuit recognized that the proposed
SIP revision does not displace the existing SIP as the applicable plan
(810 F.2d at 495), but nevertheless concluded that EPA should be barred
from enforcing the existing SIP if the Agency has not acted on a
proposed revision within four months. That court decided for policy
reasons that an enforcement bar was necessary to penalize EPA for
"contumaciousness," to preserve the role of the States under the Act,
and to assure even-handed consideration of SIP revision requests. 810
F.2d at 499-500. The court made virtually no attempt to ground its
enforcement bar in a specific statutory provision, or in specific
evidence of legislative history. And, in fact, there is no evidence
that Congress either intended or provided such an enforcement bar. In
carving an exception out of EPA's general statutory enforcement
authority, the American Cyanamid rule is "contrary to what the statute
says." /29/
Nothing in the statute qualifies EPA's authority to enforce the
"applicable implementation plan" in this circumstance. Indeed, Congress
enacted an explicit enforcement bar elsewhere in the statute /30/ -- a
fact which further rebuts the notion that an implicit enforcement bar
was somehow intended if EPA misses a deadline under Section
110(a)(3)(A). See Hallstrom v. Tillamook County, 110 S. Ct. 304, 309
(1989) ("(W)e are not at liberty to create an exception where Congress
has declined to do so."); Russello v. United States, 464 U.S. at 23.
Furthermore, reading an enforcement bar into Section 110(a)(3)(A) would
render superfluous the explicit and limited provision of Section 110(g)
(42 U.S.C. 7410(g)), which Congress enacted in 1977 to address the
situation in which a pending SIP revision has not been acted on by EPA
and the State believes that the waiver is necessary to prevent
substantial unemployment due to plant closings. In that Section,
Congress has granted authority to a Governor to suspend the existing SIP
after four months. As the court of appeals recognized (Pet. App. 18a
n.6), there would have been no reason for Congress to add that Section
if the existing SIP automatically became unenforceable at the end of
that period. /31/
Instead of relying on specific statutory provisions or legislative
history to justify an enforcement bar, the American Cyanamid court
referred to the States' important role in "the statutory scheme" (810
F.2d at 500) and to the congressional finding that "'the prevention and
control of air pollution * * * is the primary responsibility of States
and local governments'" (810 F.2d at 500-501, quoting 42 U.S.C.
7401(a)(3)). Petitioner similarly relies on "the statute's carefully
crafted balance of state and federal authority." Br. 22. This general
emphasis on the role of the States, however, does not supply a proper
statutory anchor for the enforcement bar. Moreover, while the States
retain important responsibilities under the Act, the States' "primary
responsibility" is to be carried out subject to significant oversight by
the federal government. Section 110(a), in particular, gives final
authority over SIPs and SIP revisions to EPA. See Train v. Natural
Resources Defense Council, 421 U.S. at 92. Since Congress made EPA
approval a condition precedent to the effectiveness of a SIP revision,
there will always be a period during which a State's choice of emission
controls will have to await approval by EPA. The result of the American
Cyanamid rule is that a proposed SIP revision becomes, in effect, the
applicable standard after four months in the absence of agency
disapproval. But there is simply no support in the statute for such a
conclusion. /32/
B. Less Drastic Remedies Than An Enforcement Bar Are Available To
Address Agency Delay
In the absence of a specific statutory provision or legislative
history suggesting that Congress intended an enforcement bar, petitioner
maintains that an enforcement bar should be imposed for various policy
reasons. Petitioner urges that such a bar is needed to protect the
States' role under the Act (Br. 20-24, 31-34), to protect industry from
uncertainty (Br. 34-37), and to discipline the Agency (Br. 37-40).
These policy arguments are more properly presented to Congress than to
the courts. They are, in any event, unpersuasive -- especially because
explicit statutory provisions already provide less drastic remedies than
an enforcement bar, remedies that, unlike petitioner's blunderbuss
approach, also preserve the basic statutory protection of the public
health.
1. Petitioner's argument about the propriety of an enforcement bar as
a remedy (Br. 24-30, 40-45) begins with a fundamental misconception.
Petitioner fails to appreciate the exceptional nature of the "remedy" it
seeks, and of the rule imposed by the American Cyanamid court. In the
absence of explicit statutory language divesting an agency of the power
to enforce an Act of Congress, courts should be wary of assuming that
Congress intended such a result. The principles that govern this
inquiry were set out in Brock v. Pierce County, 476 U.S. 253 (1986).
That litigation arose out of an attempt by the Secretary of Labor to
recoup misspent job training funds after a government audit of the
County's expenditures; the County argued that recovery was barred
because the Secretary had failed to complete his investigation and issue
a final determination regarding the matter within 120 days, as required
by the pertinent statute. Id. at 257. Citing "the 'great principle of
public policy, applicable to all governments alike, which forbids that
the public interests should be prejudiced by the negligence of the
officers or agents to whose care they are confided'" (476 U.S. at 260),
this Court emphasized the strong presumption against concluding that
Congress intended to bar an agency from acting if it missed a deadline
for regulatory action (ibid.):
We would be most reluctant to conclude that every failure of an
agency to observe a procedural requirement voids subsequent agency
action, especially when important public rights are at stake.
When, as here, there are less drastic remedies available for
failure to meet a statutory deadline, courts should not assume
that Congress intended the agency to lose its power to act.
The Court explained that a "less drastic remedy" for failure to meet a
mandatory deadline would be a suit to "'compel agency action unlawfully
withheld or unreasonably delayed,'" under the Administrative Procedure
Act, 5 U.S.C. 706(1). 476 U.S. at 260 n.7.
The reasoning of Brock is fully applicable to this case. /33/ Here,
as in Brock, "(t)here is simply no indication in the statute or its
legislative history that Congress intended to remove the (agency's)
enforcement powers" if it fails to act in a timely fashion. 476 U.S. at
266. /34/ As the court of appeals concluded, and as we shall show,
there are less drastic remedies (including but not limited to suits
under 5 U.S.C. 706(1)) for addressing untimely action on SIP revisions.
See also Alcan Foil, 889 F.2d at 1520-1521 ("Clearly remedies less
drastic than dismissal are available for EPA's failure to act within
four months.").
Petitioner contends (Br. 26) that the reasoning of Brock is not
applicable because EPA can lift the enforcement bar by taking final
actions on proposed SIP revisions. This asserted distinction is
inadequate. During the enforcement bar, the Agency would be stripped of
its explicit statutory power to enforce applicable clean air
requirements; the need for judicial reluctance to conclude that an
agency's failure "to observe a procedural requirement voids subsequent
agency action, especially where important public rights are at stake"
(Brock, 476 U.S. at 260) is therefore directly relevant. That EPA could
ultimately act on a proposed revision (and thus regain its enforcement
authority) does not mitigate the fact that it would have been deprived
of "its power to act" (ibid.) with respect to Clean Air Act violations
in the interim -- and could be similarly deprived again by submission of
another proposed revision relating to the same source. Indeed, Congress
has specifically emphasized the importance of imposing monetary
penalties to remove the economic benefits of noncompliance and to "place
polluters on the same economic footing as those who had limited their
emissions through increased anti-pollution expenditures." Duquesne
Light, 698 F.2d at 463, citing H.R. Rep. No. 294, 95th Cong., 1st Sess.
72-79 (1977). If EPA were barred from collecting penalties for some
period of non-compliance with an applicable SIP, this congressional
purpose would be irretrievably thwarted, notwithstanding the possibility
of prospective relief once EPA is able to take final action on the SIP
revision. Contrary to petitioner's advocacy of the enforcement bar,
Brock counsels that, in the absence of explicit congressional intent,
such a frustration of the basic statutory purpose -- and such an
exceptional result from a failure to observe a deadline for regulatory
action -- should not be countenanced. /35/
2. Proceeding from this misconception about the nature of the rule it
advocates, petitioner advances policy arguments to support the
enforcement bar. Petitioner's first policy argument (Br. 20-24) is that
an enforcement bar is necessary to preserve the partnership between the
state and federal governments that the Clean Air Act creates. As an
initial matter, it is incongruous for petitioner to be asserting that
interest in this case because the Commonwealth of Massachusetts has
stated unequivocally in this litigation that, in its view, an American
Cyanamid enforcement bar should not be imposed. See Massachusetts C.A.
Amicus Br. 10-15; Pet. App. 12a. Petitioner thus seeks to assert the
State's interest in a case in which the State itself has come to exactly
the opposite conclusion.
In any event, an enforcement bar would be unlikely to further the
asserted goal of a co-operative relationship between the States and the
federal government. Instead, it would place a premium on hurried and
inflexible decision-making. In this case, for instance, an enforcement
bar would have argued strongly in favor of rejecting the Commonwealth's
request for additional time for negotiations. Cf. Georgia v. United
States, 411 U.S. 526, 540-541 (1973) (requiring the Attorney General to
act on state reapportionment plans within the 60 day deadline provided
in the Voting Rights Act, rather than allowing him to suspend running of
period while States submitted additional pertinent information, "would
only add acrimony to the administration" of the Act).
To the extent that States are legitimately aggrieved by EPA delay in
SIP revision review, moreover, adequate alternative remedies are
available. The ruling below contemplates the ability to compel EPA
action, if it is unreasonably delayed. Brock suggests (476 U.S. at 260
& n.7) that this is precisely the sort of "less drastic remed(y)" that
renders an enforcement bar unnecessary. See also Council of Commuter
Organizations v. Thomas, 799 F.2d at 888 (remedy for undue delay on SIP
revisions is suit to compel action under Section 304(a)); United States
v. Boccanfuso, 882 F.2d 666, 671-672 (2d Cir. 1989) (Corps of Engineers
cannot be estopped from enforcing Clean Water Act on account of its
failure to follow deadline contained in its regulations; suit under APA
provides "less drastic remedy"). Furthermore, this remedy has the
advantage of being available in all SIP revision cases, not just those
few that may implicate enforcement actions. /36/
Under the approach taken by the court of appeals, moreover, there is
a substantial incentive for timely agency action because, pursuant to
Section 113(b) (42 U.S.C. 7413(b)), the penalties EPA may obtain can be
reduced if the source can show that it complied with a proposed SIP
revision that was subject to an unreasonable and prejudicial delay.
Pet. App. 15a. Like an action to compel agency action -- and unlike an
enforcement bar -- this remedy is explicitly provided by statute. It is
also more appropriately tailored to the asserted problem of agency delay
than an automatic enforcement bar, which would take effect no matter how
reasonable the delay and whether or not the delay caused any prejudice.
Although, as petitioner notes (Br. 41), this remedy will require
judicial inquiry in enforcement cases, it is the kind of judicial
inquiry in enforcement actions that the statute contemplates. See 42
U.S.C. 7413(b). /37/
States may also use non-judicial remedies to protect their interest
in timely action on SIP-revision proposals. The States can and have
expressed their concerns directly to EPA. The agency, in response, has
implemented significant reforms designed to speed up the SIP review
process. Indeed, EPA's recent SIP Process Reform is a product of a task
force made up of State and EPA officials. See 54 Fed. Reg. 2215-2216
(1989). Carrying out the recommendations of the task force, EPA has
implemented significant changes in its SIP processing procedures,
including: review of proposed SIP revisions for completeness against
specific criteria, and a requirement of prompt modification of
incomplete submittals; delegation of decisional authority to Regional
Administrators for SIP actions which are not nationally significant;
identification of minor revisions which do not require notice and
comment; use of expedited notice and comment procedures for other
revision proposals; and provision for "grandfathering" of SIP revisions
prepared in good faith by a State but which may become deficient because
of a change in EPA policy subsequent to state submission. Id. at
2217-2220. These changes, brought about by a cooperative State-federal
effort, should go far toward meeting any state concerns about excessive
delay.
At the same time, the interest of all States -- and of the general
public -- in clean air would be undermined by an enforcement bar. As
Massachusetts itself put it in arguing against an enforcement bar in the
court of appeals, "(s)ince the existing SIP is not suspended in any
sense by the pendency of a proposed revision and remains the valid
standard * * * EPA must be able to enforce it." Massachusetts C.A.
Amicus Br. 11. See also Pet. App. 16a ("We find it significant that not
even the Commonwealth argues for an enforcement bar, thus recognizing
that its interests occasionally must yield to the overriding goal of
improving our nation's air."). Furthermore, an enforcement bar would
provide an incentive for quick action only in SIP revision review cases
where enforcement is implicated, i.e., cases where the proposed SIP
revision loosens restrictions or deadlines. It could thus have the
perverse result of encouraging the Agency to concentrate scarce
resources on SIP revisions that relax air quality requirements, drawing
resources away from the many SIP revisions that tighten requirements or
deadlines. /38/
3. Petitioner's second policy argument (Br. 34-37) is that an
enforcement bar is necessary to avoid "seriously negative impacts on
regulated industries." Id. at 34. This contention is unfounded.
The thrust of petitioner's objection is that industries are subject
to "conflicting federal and state regulatory requirements." Br. 34.
This asserted "conflict," however, stems from the Act's requirement that
EPA approve a state SIP revision before it can become effective. Thus,
as petitioner recognizes (Br. 34 n.43), there will always be a period
during which a State-proposed revision and a federally-approved SIP will
differ. If federal and state requirements are actually in conflict,
however, by virtue of the federal requirement being more stringent than
the state requirement, then the federal requirement clearly controls
under basic preemption principles. See, e.g., Northwest Central
Pipeline Corp. v. State Corporation Comm'n, 109 S. Ct. 1262, 1273
(1989); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,
142-143 (1963). /39/ Moreover, the Clean Air Act itself makes clear
that the approved SIP is the "applicable implementation plan" until a
revision is approved by EPA (Section 110(d); 42 U.S.C. 7410(d)). /40/
Even if there were a problem with inconsistent obligations, however,
an enforcement bar is not well-tailored to address it. For one thing,
it would operate even where, as here, there is no threat of inconsistent
state enforcement. For another, the "certainty" it promises would be
illusory because the source would be subject to the possibility of a
citizen suit to enforce the existing SIP even if EPA's hands were tied.
/41/ Instead of producing certainty, an enforcement bar would lead to a
situation where enforcement may or may not take place depending on
whether there exists a citizen group willing and able to mount the
challenge. Cf. Amicus Br. of National Governors Ass'n, et al. 18 n.17
("It would be anomalous to create a situation in which States could
enforce, private citizens could enforce, but the expert federal agency
with explicit statutory authority could not."). /42/
Petitioner's additional suggestion (Br. 36) that an enforcement bar
is needed to protect companies which "undertake improved compliance
strategies" is also unpersuasive. EPA can bring an action only when the
source fails to comply with the existing SIP. If the source is truly
undertaking "improved" compliance, this problem should not arise. To
the extent that it does arise -- because, as petitioner claims,
non-compliance with the existing SIP is justified by long-term
investments in better compliance technologies and by interim compliance
with the proposed SIP revision -- the possible reduction of penalties in
Section 113(b) is once again an adequate remedy. Such claims go to the
"equities of (the) case" (Pet. App. 17a) and the "seriousness of the
violation" (Section 113(b); 42 U.S.C. 7413(b)) that are part of the
district court's consideration of penalties. /43/
4. Petitioner's third policy argument (Br. 37-40) is that an
enforcement bar is needed to preserve the integrity of EPA's SIP review
process. However, the speculative possibility that an enforcement
action could undermine even-handed administration and influence the
outcome of the final decision on a SIP revision stems not from agency
delay but from Congress's decision to assign both enforcement and SIP
review responsibilities to the same agency (Pet. App. 16a-17a).
Congress evidently concluded that the two functions could be carried out
fairly by the same agency. Moreover, Congress provided an adequate
remedy for anyone aggrieved by an allegedly biased decision by providing
for review of final agency decisions in the courts of appeals. Section
307(b)(1); 42 U.S.C. 7607(b)(1). See also Bethlehem Steel Corp. v.
EPA, 638 F.2d 994, 1010 (7th Cir. 1980) (appropriate remedy where
enforcement considerations may have improperly affected EPA's decision
on delayed compliance order is vacation and remand to agency under
Section 307(b)). Indeed, petitioner has filed suit under Section 307(b)
to challenge the propriety of EPA's denial of the SIP revision in this
case (supra at n.8). /44/ This Court should reject the invitation to
create an additional remedy to address this asserted problem, especially
one as broad as a complete preclusion of enforcement whenever EPA has
taken more than four months to act on a SIP revision. See Middlesex
County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1,
14-15 (1981)) ("it is an elemental canon of statutory construction that
where a statute expressly provides a particular remedy or remedies, a
court must be chary of reading others into it") (quoting Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979)). See also
Touche Ross & Co. v. Redington, 442 U.S. 560, 574 (1979) (the Court is
"extremely reluctant to imply a cause of action * * * that is
significantly broader than the remedy that Congress chose to provide").
5. The American Cyanamid court explicitly rested its enforcement bar,
in part, on a closely related policy argument -- an asserted need to
punish the agency for delay. See American Cyanamid, 810 F.2d at 499 n.9
(rejecting Duquesne Light approach because, under it, "EPA * * * pays no
price for its contumaciousness"); Pet. Br. 21. That rationale fails
for several reasons.
As an initial matter, careful EPA evaluation of proposed revisions,
which must be issued for public comment and submitted to OMB review,
will generally take substantially longer than four months. EPA has
itself established timetables for agency action which are a far more
realistic reflection of the underlying legal and administrative
complexities presented by SIP revisions that may involve many federal,
state, and private parties and that must also clear the hurdles posed by
prevailing administrative law jurisprudence. In these circumstances,
failure to observe a four-month timetable hardly merits automatic and
severe judicially-invented punishment.
Moreover, as the court of appeals in this case noted, "(i)f the EPA
cannot enforce existing standards, it is the public and not the EPA that
is hurt." Pet. App. 14a. See also Alcan Foil, 889 F.2d at 1520 ("The
public should not suffer because of EPA's failures."); D. Currie,
supra, at 114 (result of American Cyanamid is that "the public is
punished for the Agency's inaction"). Under the American Cyanamid rule,
EPA is absolutely banned from enforcement actions after the four-month
period and during the pendency of a SIP revision proposal. The Agency
cannot enforce the approved SIP, even though it remains the "applicable
implementation plan" (Section 110(d); 42 U.S.C. 7410(d)), and it cannot
even enforce the proposed SIP because it is not yet the "applicable
implementation plan." It does no disservice to the States to recognize
that they are sometimes put under enormous pressure to accommodate major
sources of employment. Congress recognized this fact of life when it
provided for federal review of SIPs and SIP revisions. /45/ An
enforcement bar could encourage non-complying sources to propose, and
States to submit, last-minute SIP revision proposals for the purpose of
staying EPA enforcement actions and postponing compliance with SIP
provisions which Congress required to be achieved within the deadlines
set forth in the Act. /46/ If existing SIPs cannot be enforced by EPA,
noncomplying sources in States that propose revisions will gain unfair
advantage over those in other States, and the public will suffer from
further delays in attainment of national air quality standards, contrary
to Congress's clear intent. /47/ In light of the fact that EPA is
rarely able to complete final action on SIP revisions within four
months, adoption of the American Cyanamid rule would seriously undermine
the Agency's ability to enforce the Act as Congress intended.
The facts of this case illustrate the negative results of an
enforcement bar. Petitioner had more than ample time (five years) to
bring its plant into compliance with the emission limits of the 1980 SIP
either by installing control devices on its lacquer coating lines or by
converting to the basecoat/clearcoat process without undue delay.
Instead of making the investment necessary to achieve this result,
petitioner waited until shortly before the deadline to propose a
solution that by that time required a one and one-half year extension of
the SIP time limits. Allowing petitioner to follow this course of
conduct without penalty would ignore the damage to the public interest
caused by the one and one-half-year delay in reaching the stricter
emission limits, and would give petitioner an economic advantage over
companies that made the investments necessary to meet applicable limits
in a timely fashion. Worse, adopting an enforcement bar could encourage
other sources to propose last-minute SIP revisions, secure in the
knowledge that EPA would not be able to enforce the deadlines of the
existing SIP for a significant length of time. /48/
Most fundamentally, the punishment rationale -- and the American
Cyanamid rule generally -- reflects a serious misconception of the
court's role. Congress provided for enforcement of the "applicable" SIP
(42 U.S.C. 7413(b)(2)), and made no exception for the situation when a
proposed revision has been pending for more than four months. It is not
the province of the judiciary to carve out such an exception based on
notions of "what accords with 'common sense and the public weal.'" TVA
v. Hill, 437 U.S. 153, 195 (1978). Cf. National Crushed Stone, 449 U.S.
at 83 ("'The question * * * is not what a court thinks is generally
appropriate to the regulatory process; it is what Congress intended * *
*'") (quoting from E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112,
138 (1977)).
Thus, neither the asserted concern for the role of the States, nor
the claim of unfairness to industry, nor the stated need to discipline
and punish the Agency justifies an enforcement bar. To the extent that
such concerns are substantial, less drastic remedies are readily
available and are already provided by statute. /49/ Accordingly, the
court of appeals correctly reinstated the enforcement action against
petitioner and remanded for consideration of appropriate penalties, if
any.
We agree with the court of appeals (Pet. App. 15a, 17a) that the
district court in setting penalties may consider the equities of the
case along with the reasonableness of the period taken by EPA for
processing the SIP revision and, if unreasonable, any resulting
prejudice to petitioner. The reasonableness of any Agency delay will
depend on a number of factors, including whether the SIP revision
presented novel or complex issues, and whether the delay was caused by
EPA or by other parties. /50/ The district court will then have a full
opportunity to take account of the various claims of unfairness which
petitioner here asserts in favor of an enforcement bar.
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
CLIFFORD M. SLOAN
Assistant to the Solicitor General
MARTIN W. MATZEN
DAVID C. SHILTON
Attorneys
E. DONALD ELLIOT
General Counsel
DAVID P. NOVELLO
TIMOTHY L. WILLIAMSON
Attorneys Environmental Protection Agency
FEBRUARY 1990
/1/ "Ambient air" is "the statute's term for the outdoor air used by
the general public." Train v. Natural Resources Defense Council, 421
U.S. at 65.
/2/ Before 1974, this provision had been Section 110(a)(3) of the
Clean Air Act, rather than Section 110(a)(3)(A). See Energy Supply and
Environmental Coordination Act of 1974, Pub. L. No. 93-319, Section
4(a), 88 Stat. 256.
/3/ Petitioner's statement that "(f)or ozone the deadline is December
31, 1987" (Br. 4 n.1) is thus, at best, an incomplete statement of the
pertinent statutory provision.
/4/ A "major stationary source" is "any stationary facility or source
of air pollutants which directly emits, or has the potential to emit,
one hundred tons per year or more of any air pollutant." 42 U.S.C.
7602(j).
/5/ The D.C. Circuit has described the effects of ozone:
Ozone is the primary cause of the ill effects associated with
smog, of which it usually comprises 65-100%. At certain
concentration levels, ozone irritates the respiratory system and
causes coughing, wheezing, chest tightness, and headaches. Due to
its irritating nature, ozone can aggravate asthma, bronchitis, and
emphysema. Some studies indicate that chronic exposure to fairly
low levels of ozone may reduce resistance to infection and alter
blood chemistry or chromosome structure. Ozone can destroy
vegetation, reduce crop yield, and damage exposed materials by
causing cracking, fading and weathering.
American Petroleum Institute v. Costle, 665 F.2d 1176, 1181 (D.C. Cir.
1981), cert. denied, 455 U.S. 1034 (1982). See also Illinois State
Chamber of Commerce v. EPA, 775 F.2d 1141, 1143 (7th Cir. 1985) ("Ozone
is a significant component of the health-endangering smog that is one
product of modern industry and transportation").
/6/ EPA also emphasized that the revisions would "need to be
evaluated in light of their impact on the overall plan and the
individual elements, including emission reductions necessary to
demonstrate reasonable further progress toward attainment of standards."
J.A. 31-32.
/7/ EPA pointed out that the SIP limit for topcoating was 2.8 pounds
of VOC per gallon of coating (excluding water) and that petitioner had
used topcoatings with an average content of 5.02 pounds of VOC per
gallon of coating (excluding water); EPA also pointed out that the SIP
limit for final repair coatings was 4.8 pounds of VOC per gallon of
coating (excluding water), and that petitioner had used final repair
coatings with an average of 6.18 pounds of VOC per gallon of coating
(excluding water). J.A. 79.
/8/ On November 11, 1988, petitioner filed a petition for review of
EPA's denial of the proposed SIP revision in the court of appeals.
General Motors v. Reilly, No. 88-2123 (1st Cir.). That action has been
stayed pending EPA action on petitioner's request for reconsideration by
the agency, and pending decision in this case.
/9/ The Sixth Circuit has now agreed with the First Circuit's
analysis in this case, and has also rejected the American Cyanamid
enforcement bar. See United States v. Alcan Foil Products, 889 F.2d
1513 (6th Cir. 1989), petition for cert. pending, No. 89-1104. Both
this case and Alcan Foil arose in the context of Section 113 enforcement
proceedings; Duquesne Light and American Cyanamid arose in the context
of Section 120 administrative assessments. Neither the First Circuit
nor the Sixth Circuit rested its decision on that distinction. See Pet.
App. 16a & n.4; 889 F.2d at 1518.
/10/ See Pet. App. 12a (citing American Cyanamid, 810 F.2d at 495;
Council of Commuter Organizations v. Thomas, 799 F.2d 879, 888 (2d Cir.
1986); Council of Commuter Organizations v. Gorsuch, 683 F.2d 648, 651
n.1 (2d Cir. 1982); and Duquesne Light Co. v. EPA, 698 F.2d 456, 471
(D.C. Cir. 1983)). In United States v. Alcan Foil Products, supra, the
Sixth Circuit also concluded that a four-month limit applies to SIP
revisions. 889 F.2d at 1517-1518.
/11/ Contrary to petitioner's contention (Br. 12 n.13), the question
of the applicability of a four-month deadline to review of SIP revisions
is properly before this Court. The non-applicability of such a deadline
is an alternative ground for affirming the judgment of the court of
appeals, which reversed the dismissal of the enforcement action and
remanded for consideration of penalties. The "prevailing party" is "of
course free to defend its judgment on any ground properly raised below
whether or not that ground was relied upon, rejected, or even considered
by the District Court or the Court of Appeals." Washington v. Yakima
Indian Nation, 439 U.S. 463, 475 n.20 (1979). See also Thigpen v.
Roberts, 468 U.S. 27, 30 (1984); Blum v. Bacon, 457 U.S. 132, 137 n.5
(1982); Dayton Board of Education v. Brinkman, 433 U.S. 406, 419
(1977). In this case, the issue has been not only properly raised
below, but explicitly addressed by both the district court and the court
of appeals. See J.A. 122-125; Pet. App. 9a-12a.
/12/ This original schedule included (1) proposed NAAQS "within 30
days after December 31, 1970" (Section 109(a)(1)(A); 42 U.S.C.
7409(a)(1)(A)); (2) final NAAQS "no later than 90 days after initial
publication of such proposed standards" (Section 109(a)(1)(B); 42
U.S.C. 7409(a)(1)(B)); (3) original SIP submissions "within nine months
after the promulgation" of NAAQS (Section 110(a)(1); 42 U.S.C.
7410(a)(1)); (4) EPA action on SIP submissions within four months
(Section 110(a)(2); 42 U.S.C. 7410(a)(2)); and (5) attainment of the
primary NAAQS "as expeditiously as practicable but * * * in no case
later than three years" from the date of approval of the original SIP
(Section 110(a)(2)(A); 42 U.S.C. 7410(a)(2)(A)).
/13/ The "it" in Section 110(a)(3)(A), which must "meet() the
requirements of paragraph (2)," plainly refers to the SIP revision, not
to the Administrator.
/14/ Significantly, the very next provision of the Act, relating to
certain SIP revisions for fuel burning stationary sources, contains just
such language. See Section 110(a)(3)(B); 42 U.S.C. 7410(a)(3)(B) ("The
Administrator shall approve or disapprove any revision no later than
three months after its submission."). Clearly, Congress knew how to
impose time limits on EPA processing of SIP revisions when it wanted to
do so. The three-month limit in Section 110(a)(3)(B) is practicable
because a proposed SIP revision under that Section can be submitted only
after the Administrator has determined that the SIP can be revised
"without interfering with the attainment and maintenance of any national
ambient air quality standard," and has so notified the State. Hence,
the difficult determination of whether NAAQS will be preserved will
already have been made. Indeed, Section 110(a)(3)(B) requires the
Administrator to make that determination -- whether state plans are
capable of revision without interfering with the attainment of NAAQS --
not within a specified three-month period, but merely "(a)s soon as
practicable."
Other examples of explicit deadlines in the Clean Air Act are the
deadlines for imposition of a federal implementation plan (Section
110(c)(1); 42 U.S.C. 7410(c)(1)) and review of a State-issued delayed
compliance order (Section 113(d); 42 U.S.C. 7413(d)).
/15/ The legislative history reflects this sense of urgency. See,
e.g., Congressional Research Service, 1 A Legislative History of the
Clean Air Amendments of 1970, at 124-125 (Comm. Print 1974) (remarks of
Senator Muskie on consideration of the conference report) ("Let me now
review briefly where we were in September * * * . Unless we recognized
the crisis and generated a sense of urgency, national lead times to find
and apply controls (and) measures could melt away without any chance for
a rational solution to the air pollution problem. * * * (N)ational air
quality goals * * * had to be achieved within specific time frames * * *
."). See also Union Electric Co. v. EPA, 427 U.S. 246, 256 (1976)
("(T)he 1970 Amendments to the Clean Air Act were a drastic remedy to
what was perceived as a serious and otherwise uncheckable problem of air
pollution.").
/16/ See S. Rep. No. 1196, 91st Cong., 2d Sess. 14 (1970) ("In order
to insure achievement of air quality necessary to protect the health of
persons within the period specified in the bill, time constraints would
be placed on the Secretary's review and approval authority. * * * The
bill would provide that the Secretary must approve or reject any
implementation plan submitted by a State within four months of the date
required for its submission."). In that version of the legislation, the
Secretary of Health, Education, and Welfare, who had previously been
responsible for federal air pollution control efforts, was given
responsibility for reviewing SIP submissions. See id. at 52.
/17/ See CRS, 2 A Legislative History of the Clean Air Act Amendments
of 1970, at 1036-1038 (Comm. Print 1974) (testimony of Charles C.
Johnson, Administrator, Environmental Health Services, Department of
Health, Education, and Welfare). The 1970 Amendments specifically
provided that any pre-enactment state implementation plan could be
approved and remain in effect if consistent with the Amendments. See 84
Stat. 1713; 42 U.S.C. 7410 note.
/18/ See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,
Inc., 484 U.S. 49, 63 n.4 (1987) ("Respondents point to provisions in
the 1987 Act and statements in its legislative history * * * . The
conclusions of the 99th Congress, however, are hardly probative of the
intent of the 92d Congress."); Rainwater v. United States, 356 U.S.
590, 593 (1958) ("At most, the 1918 amendment is merely an expression of
how the 1918 Congress interpreted a statute passed by another Congress
more than a half century before. * * * (S)uch interpretation has very
little, if any, significance").
/19/ See H.R. 6161, 95th Cong., 1st Sess. Section 115 (1977)
(reprinted in CRS, 4 A Legislative History of the Clean Air Act
Amendments of 1977, at 2324 (Comm. Print 1978)).
/20/ See Letter from Joseph A. Cannon, EPA Associate Administrator,
Policy and Resource Management to Hon. Sam. B. Hall, Chairman, House
Subcommittee on Administrative Law and Governmental Relations (May 26,
1983), reprinted in Regulatory Reform Act: Hearings Before the Subcomm.
on Administration Law and Governmental Relations of the House Comm. on
the Judiciary, 98th Cong., 1st Sess. 1561-1562 (1983).
/21/ The requirements that SIPs in nonattainment areas provide for
the use of "reasonably available control technology" (RACT) to reduce
emissions and that they provide for "reasonable further progress" in
controlling emissions during the interim before compliance (42 U.S.C.
7502(b)(3)) were added by the 1977 Amendments; they require EPA to make
a more detailed inquiry into a State's choice of emission limitations.
See, e.g., Michigan v. Thomas, 805 F.2d 176, 184-185 (6th Cir. 1986).
/22/ See, e.g., Br. 11, 12, 14, 18, 22.
/23/ Cf. United Steelworkers of America v. Rubber Manufacturers
Ass'n, 783 F.2d 1117, 1120 (D.C. Cir. 1986) (accepting Occupational
Safety and Health Administration's proposed 14-month schedule for
completing rulemaking because agency "obviously cannot know at present
how many comments it will receive or the nature of those comments," and
because, given the need for careful consideration of complex issues,
"judicial imposition of an overly hasty timetable at this stage would
ill serve the public interest").
/24/ In its condemnation of EPA, petitioner misstates a finding in an
internal Agency audit. According to petitioner, the Agency audit found
that the average time for SIP revision review is 30 months. Br. 29. In
fact, however, the audit found that 30 months is the average time only
for review of SIP revisions in which a disapproval is contemplated;
those are, of course, the revisions that require the most time and are
the most contested. See EPA, Report of Audit, Review of EPA's Process
for Approving/Disapproving State Implementation Plans and Revisions,
E1K*8-11-0045-9100210 (March 1989) 20-21 (analyzing length of time for
"pending disapprovals").
/25/ Amici Golden West Refining Co., et al., contend (Br. 7 n.4) that
"EPA acknowledged the four month limit applied to SIP revisions" in
regulations implementing Section 120. What Golden West mistakenly
refers to as "proposed regulations" was actually a final rule modifying
EPA's Section 120 regulations in response to the D.C. Circuit's Duquesne
Light decision. 50 Fed. Reg. 36,732 (1985). With respect to the
four-month deadline, EPA merely repeated the holding of Duquesne Light
and cited the decision. 50 Fed. Reg. 36,733 (1985). This recognition
of a court decision obviously does not amount to an "acknowledge(ment)"
or a concession. See EPA v. National Crushed Stone Ass'n, 449 U.S. 64,
83 n.25 (1980). See also SIP Processing Reform, 54 Fed. Reg. 2215 n.1
(1989) (reiterating Agency view that four month deadline "does not apply
to SIP revisions").
/26/ EPA may bring the action 30 days after notice of a violation.
If the EPA has, pursuant to 42 U.S.C. 7413(a)(2), assumed enforcement of
a SIP from the State because of state enforcement failures, the 30-day
period is not necessary. 42 U.S.C. 7413(b)(2).
/27/ The reference to Section 110(c) is to situations in which,
because of state failure to comply with SIP submission requirements, the
Administrator promulgates a SIP on the State's behalf. See 42 U.S.C.
7410(c).
/28/ See Alcan Foil, 889 F.2d at 1519 ("(A) proposed revision is
exactly what its name implies -- a proposal, and nothing more.");
Duquesne Light, 698 F.2d at 471 (same); United States v.
Wheeling-Pittsburgh Steel Corp., 818 F.2d 1077, 1084 (3d Cir. 1987)
(company is obliged to comply with existing compliance deadlines during
pendency of SIP revision); United States v. Ford Motor Co., 814 F.2d
1099, 1103 (6th Cir.) ("the original emission limit remains fully
enforceable until a revision or variance is approved by both the State
and EPA"), cert. denied, 484 U.S.C. 822 (1987); Metropolitan Washington
Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 812 (D.C.
Cir. 1975) (proposed SIP revision has no legal effect until approved by
EPA); Natural Resources Defense Council v. EPA, 478 F.2d 875, 886 (1st
Cir. 1972) (same).
/29/ D. Currie, Air Pollution: Federal Law and Analysis Section 8.07
n.14 (Supp. 1989). See also 1 W. Rodgers, Environmental Law: Air and
Water Section 3.39 (Supp. 1988) (enforcement bar is a "limitation
invented by American Cyanamid").
/30/ Section 113(d)(10); 42 U.S.C. 7413(d)(10), contains an express
enforcement bar when Delayed Compliance Orders are in effect: it
provides that, during the period of the Order and where the source is in
compliance with its terms, "no Federal enforcement action pursuant to
this section and no action under section 7604 of this title (providing
for citizen suits) shall be pursued against such owner or operator based
upon noncompliance during the period the order is in effect with the
requirements for the source covered by such order."
Section 113(d)(2); 42 U.S.C. 7413(d)(2), moreover, provides that a
Delayed Compliance Order issued by a State to a "source other than a
major stationary source" is effective until the Administrator
disapproves it. The same Section provides that orders issued to major
stationary sources are not effective until approved by EPA. This
indicates that Congress is well aware of the difference between agency
approvals that are a condition precedent to effectiveness of a
State-issued order and those that are a condition subsequent.
Petitioner here is seeking, in essence, to change a statutory condition
precedent to a condition subsequent. The fact that the Fifth Circuit
has now suggested that its American Cyanamid rule applies if EPA has not
acted on a Delayed Compliance Order to a major stationary source within
a specified period (General Motors Corp. v. EPA, 871 F.2d 495, 505 (5th
Cir. 1989)) does not vitiate this explicit statutory distinction.
/31/ In response to this point, petitioner maintains (Br. 27 n.34)
that a Governor may issue a four-month suspension order as soon as the
request is submitted, that the suspension would run concurrently with
the four-month period for EPA review, and that the American Cyanamid bar
would run after the expiration of that period. Section 110(g), however,
does not contain a provision specifying that the Governor's suspension
order takes effect immediately; Section 110(f), in contrast, which
concerns energy emergencies and which was passed at the same time as
Section 110(g), contains precisely such language. See 42 U.S.C.
7410(f)(1) (after President's determination of emergency, Governor's
suspension order "may take effect immediately"). The Conference Report,
moreover, firmly rebuts petitioner's strained reading of Section 110(g)
by stating an intent to "limit the Governor's economic emergency
suspension authority to a case in which * * * the Administrator has
failed to approve or disapprove such plan revision within the required
4-month period." H.R. Conf. Rep. No. 564, 95th Cong., 1st Sess. 125
(1977). Clearly, the Administrator cannot be said to have "failed"
until the four-month period is over; thus a Governor's ability to order
a suspension comes into effect only after the four-month period of EPA
review, and would be entirely unnecessary if Congress intended a general
American Cyanamid bar if EPA does not act in four months.
This analysis, of course, proceeds from the premise that a general
four-month deadline is intended by Section 110(a)(3)(A). As we have
explained (pp. 14-24, supra), we believe that four-month review of SIP
revisions is required only for such emergency suspensions.
/32/ Amici National Governors' Association, et al. recognize that
"(a) complete bar to enforcement proceedings is contrary to Congress's
carefully crafted scheme." Br. 18 n.17. The Association et al.
nevertheless argue (Br. 18-19) that a district court should bar
enforcement unless EPA establishes to the court's satisfaction a basis
for disapproving the pending SIP revision. While that proposal is less
draconian than the American Cyanamid bar, it suffers equally from the
disability of having no support in the statute (which unambiguously
provides that an existing SIP remains the governing legal standard
pending EPA approval of a proposed revision, see pp. 25-26, supra). In
addition, it conflicts with Congress's decision to vest exclusive review
of EPA's decisions on SIP revisions in the courts of appeals. Section
307(b)(1); 42 U.S.C. 7607(b)(1); see Harrison v. PPG Industries, Inc.,
446 U.S. 578 (1980). (Amici's reference to Section 307(b)(2), 42 U.S.C.
7607(b)(2), which prohibits review in civil or criminal enforcement
proceedings of actions on which court of appeals review could have been
obtained under Section 307(b)(1), is unavailing because that prohibition
does not confer jurisdiction on the district courts to review SIP
revisions.) In any event, Amici's concern that EPA should not enforce
the existing SIP if the proposed SIP revision meets the statutory
criteria for approval is already addressed by agency enforcement policy.
Under that policy, EPA usually does not initiate enforcement actions
until it has made a preliminary determination that a pending SIP
revision cannot be approved. See EPA, Revised Guidance on Enforcement
of State Implementation Plan Violations Involving Proposed SIP Revisions
3-6 (Aug. 29, 1989). (Copies of this document have been served on
petitioner and lodged with the Clerk of the Court.) In this case, for
instance, the enforcement action was not filed until after the proposed
disapproval had been published in the Federal Register. See J.A. 91-96.
/33/ Although American Cyanamid was decided some nine months after
Brock, it failed to advert to that decision. Both the court below (Pet.
App. 16a) and the Sixth Circuit in Alcan Foil (889 F.2d at 1520)
recognized the applicability of Brock to the claim that failure to meet
a statutory deadline for regulatory action bars agency enforcement of
that statute.
/34/ As in Brock, 476 U.S. at 265, Congress's concern has been that
the United States has not been aggressive enough in enforcing the
statute, not that enforcement targets were being treated too harshly.
See, e.g., S. Rep. No. 1196, 91st Cong., 2d Sess. 21 (1970) ("the
(enforcement) provisions of existing law, although less than adequate,
have not been used to the fullest extent practicable"); S. Rep. No.
127, 95th Cong., 1st Sess. 52 (1977) ("(d)espite the recalcitrance of
some source owners and operators toward expeditiously complying with
requirements under the act, few criminal actions have been brought * * *
; (t)he enforcement of the Clean Air Act for the past seven years has
been minimal at best * * *"); H.R. Rep. No. 294, supra, at 71-72
("(s)tate and local enforcement efforts to date ha(ve) been largely
ineffective in bringing about compliance * * * . The adequacy of
Federal enforcement efforts was also questioned. * * * (M)any steps
need to be taken to improve and expedite Federal, State, and local
enforcement activities."). See also Ohio Environmental Council v.
United States District Court, 565 F.2d 393, 397 (6th Cir. 1977) (noting
"the strong Congressional policy in favor of prompt enforcement of the
Act").
/35/ As we have explained (pp. 19-22, supra), EPA's inability to take
final action within four months is often due to factors beyond the
agency's control, such as the requirement for public comment and the
need to accommodate State requests for delay. Cf. Brock v. Pierce
County, 476 U.S. at 261 ("(T)he Secretary's ability to complete (his
statutory duty) within 120 days is subject to factors beyond his
control."). Indeed, the deadline in Brock -- 120 days -- is similar to
the four-month deadline here, and the process of reviewing SIP revisions
is at least as complex as the Secretary's responsibility to resolve the
matter of misspent funds at issue in Brock.
/36/ Two types of actions to compel agency action should be
distinguished -- a suit to compel agency action under the Clean Air Act
(Section 304(a)(2); 42 U.S.C. 7604(a)(2)) and a suit to compel agency
action under the Administrative Procedure Act (5 U.S.C. 706(1)). The
Clean Air Act provision authorizes a citizen suit "where there is
alleged a failure of the Administrator to perform any act or duty * * *
which is not discretionary." 42 U.S.C. 7604(a)(2). "In order to impose
a clear-cut nondiscretionary duty (for purposes of Section 304(a)(2)) *
* * a duty of timeliness must 'categorically mandat(e)' that all
specified action be taken by a date-certain deadline." Sierra Club v.
Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987), quoting from Natural
Resources Defense Council v. Train, 510 F.2d 692, 712 (D.C. Cir. 1974).
If there is a categorical mandate in the statute that EPA act on a SIP
revision within four months, the remedy to compel agency action would
lie under Section 304(a)(2). See Pet. App. 14a (noting that Section
304(a) provides a remedy to compel timely action on SIP revision);
Alcan Foil, 889 F.2d at 1520-1521 (same); Council of Commuter
Organizations v. Thomas, 799 F.2d at 888 (same). However, if the
four-month deadline is in the statute as a "guidepost" rather than as a
categorical mandate (as suggested by the court of appeals, Pet. App.
15a), the remedy would be under the APA, rather than Section 304(a)(2).
Sierra Club v. Thomas, 828 F.2d at 788 n.39, 792 n.62; cf. National
Congress of Hispanic American Citizens v. Usery, 554 F.2d 1196 (D.C.
Cir. 1977); National Congress of Hispanic American Citizens v.
Marshall, 626 F.2d 882, 891 (D.C. Cir. 1979). And, if a four-month
deadline does not apply at all, suits to compel agency action
unreasonably delayed may still be brought under the APA. Sierra Club v.
Thomas, 828 F.2d at 796-797; Cutler v. Hayes, 818 F.2d 879, 895 & n.137
(D.C. Cir. 1987). Under any of these interpretations, judicial relief
is available to compel agency action unjustifiably delayed.
/37/ Indeed, the Alcan Foil court, while expressing skepticism about
the efficacy of a suit to compel agency action, found the
assessment-of-penalties provision itself a sufficient alternative
remedy, and one already provided by statute. 889 F.2d at 1520-1521.
The Brief Amcius Curiae of the Chamber of Commerce of the United
States charges (Br. 15) that EPA engaged in "calculated conduct" to
deprive the State of Kentucky of its statutory prerogatives, by
allegedly delaying action on a SIP revision until applicable
requirements changed in a way that undercut the proposed revision. This
contention was raised by Alcan Foil for the first time during EPA's
appeal to the Sixth Circuit, and was sharply disputed by EPA. The court
of appeals did not resolve the issue, noting that it should be
considered by the district court on remand. 889 F.2d at 1521. As a
general matter, it seems plain that penalties would be unwarranted for a
period of prejudicial delay that was caused solely by the deliberate
conduct of the agency. Even if a delay was not deliberate, we agree
that the source's good faith in complying with a clearly approvable SIP
revision would be a factor the district court should consider in
determining whether to assess penalties. Conversely, if the proposed
SIP revision is clearly deficient, a source's reliance on it would not
warrant a reduction in penalties.
/38/ Petitioner specifically urges (Br. 25-26) that EPA should give
priority attention to those SIP revisions that are relevant to
enforcement actions. Congress, however, has given no indication that
EPA should so order its priorities.
/39/ This principle fully applies to petitioner's hypothetical
example (Br. 35 n.45) of conflicting equipment requirements: in the
case of a direct conflict, the federal requirement controls. To the
extent petitioner suggests that its hypothetical describes this case,
petitioner is mistaken. The Massachusetts SIP contained emission
limitations for sources of pollutants, effective December 31, 1985. The
choice of methodologies (and equipment) for meeting that limitation was
the source's. See J.A. 29.
/40/ If the proposed revision is more stringent than the approved
SIP, and if it is immediately applicable as a matter of state law, the
state law is enforceable (42 U.S.C. 7416). In such a circumstance,
compliance with the more stringent state requirement would subsume
compliance with, and not "conflict" with, the less stringent federal
requirement.
/41/ The Clean Air Act provides that a citizen may file an injunctive
action against any source "alleged to be in violation of * * * an
emission standard or limitation under this chapter," which is defined to
include "a schedule or timetable of compliance" and "any condition or
requirement under an applicable implementation plan relating to * * *
air quality maintenance plans." Sections 304(a)(1), (f)(1), and (f)(3);
42 U.S.C. 7604(a)(1), (f)(1), and (f)(3). Although the American
Cyanamid court had no occasion to consider whether a citizen suit to
enforce the applicable implementation plan would also be barred if EPA
takes more than four months to act on a SIP revision proposal, that
court's concerns to penalize EPA for its delay and to insure against
improper rejection of a SIP revision logically would not apply to
citizens bringing an enforcement action. Moreover, it would violate the
language and spirit of Section 304 to bar citizen suits merely because
EPA could not bring an action. Congress spelled out the limits on
citizens suits with specificity; such an action is barred where EPA "is
diligently prosecuting a civil action" (Section 304(b)(1)(B); 42 U.S.C.
7604(b)(1)(B)), but not where EPA has been disqualified from doing so
because of its delay.
/42/ To reduce any differences between state and federal requirements
while a SIP revision is pending, EPA has provided States with the option
of "parallel processing" in which the state and federal processes would
proceed simultaneously. See 47 Fed. Reg. 27,073-27,074 (1982).
Contrary to the statement of amici Motor Vehicle Manufacturers
Association et al. (Br. 14 & n.14), EPA has never "discontinued" the
parallel processing option, and the procedure is used when a State
appropriately chooses to exercise that option. See, e.g., 54 Fed. Reg.
14,969 (1989).
/43/ Petitioner's contentions about its own efforts at "improved
compliance" (Br. 36; see also Br. 6) can of course be appropriately
presented to the district court. In light of petitioner's submission of
its claim to this Court as a justification for an across-the-board
enforcement bar, however, it may be notable that petitioner's decision
to replace the existing lacquer lines with a BC/CC system was made
explicitly to "enable the plant to produce vehicles with a finish
quality competitive in today's world market" and to be "consistent with
the trend in the entire domestic auto industry" (J.A. 41); that the
BC/CC system was no longer "innovative" technology by 1985 (J.A. 94);
and that the reason for low emission rates at the new facility was, at
least in part, the separate statutory requirement of a "lowest
achievable emission rate" for a new facility in a nonattainment area (42
U.S.C. 7502(b)(6), 7503(2)). Furthermore, construction of the new
facility does not necessarily justify the continuing high rate of
emissions from the old facility after the SIP compliance date and before
petitioner closed it. Finally, petitioner's comparison of the $20
million cost of placing emission controls on the lacquer lines with the
$200 million cost of the BC/CC system (Br. 6 & n.3) overlooks the fact
that the $20 million figure represents the cost of pollution controls,
while the $200 million figure represents the cost of an entire
replacement coating facility which petitioner desired to install, at
least in substantial part, for competitive reasons unrelated to
pollution control (J.A. 41).
/44/ Petitioner's particular allegations challenging EPA's denial of
the proposed SIP revision will be considered in that action with the
benefit of a full record, and are not properly considered here. Once
again, however, because petitioner repeats those allegations so
persistently, a brief comment on two points is warranted. First,
petitioner claims that a reference in the December 2, 1986, notice of
proposed disapproval to "an enforcement mechanism" is evidence of
improper commingling of functions. Br. 38 n.48. See J.A. 96 ("This
disapproval will prevent GM from deferring the topcoat and final repair
compliance dates (from December 31, 1985 to August 31, 1987) by revising
the State regulation. Extensions of the December 31, 1985 date should
instead be obtained through an enforcement mechanism."). However, the
reference is simply to the Delayed Compliance Order (DCO) procedure,
spelled out in the enforcement section of the Act (Section 113(d); 42
U.S.C. 7413(d)). A DCO contains a schedule with increments of progress
that ensures compliance as expeditiously as practicable, and has several
other advantages over a SIP revision, which does not provide the same
certainty of expeditious compliance. Congress contemplated that
extensions would generally be handled through this procedure (see H.R.
Rep. No. 294, supra, at 56-58), and extensive negotiations regarding a
possible DCO took place while EPA was reviewing the proposed SIP
revision (J.A. 75, 89). This reference to the DCO procedure in no way
indicated that EPA had ceased to view the SIP revision proposal as a
regulatory matter.
Second, petitioner emphasizes (Br. 38) that the final disapproval was
published in the Federal Register on September 16, 1988, which was also
the day that EPA's opening brief was filed in the court of appeals.
(The Administrator had signed the final disapproval twelve days earlier,
on September 4, 1988. 53 Fed. Reg. 36,014.) Petitioner's suggestion
that this evidences some impropriety on EPA's part is without
foundation, and, in any event, can be considered fully in the pending
action challenging EPA's disapproval of the SIP.
/45/ Cf. United States v. Ford Motor Co., 814 F.2d at 1102 ("(I)f
state control of ambient air emissions were final, in short order, major
shifts of smoke stack industries to states with the most lenient pure
air standards would inevitably take place."). See also J.A. 125
(district court notes hardship to Framingham workers if "the plant was
moved out of state").
/46/ Cf. W. Rodgers, supra, at Section 3.39 ("The decision in
American Cyanamid extends to the polluter the profit from delay. * * *
(T)he opinion may encourage SIP-submitters to develop the art of the
'unapprovable package,' replete with data shortages and loose ends * * *
.").
/47/ See, e.g., H.R. Rep. No. 294, supra, at 72 ("The more (that)
legal challenges to the regulations can delay enforcement, the longer
any investments for control equipment can be deterred."); Duquesne
Light, 698 F.2d at 463 (Congress added the Section 120 recoupment
provisions in 1977, in part because "the expense of reducing emissions
(was) making it profitable for industry to delay needed expenditures as
long as possible").
/48/ The Alcan Foil court stated in dictum that "the court may assess
penalties from the date of the notice of noncompliance" (889 F.2d at
1521). In fact, however, in a Section 113 proceeding, penalties may be
assessed from the first day of violation (see, e.g., United States v.
SCM Corp., 667 F. Supp. 1110, 1122-1123 (D. Md. 1987)); in a Section
120 proceeding, in contrast, as in American Cyanamid, the statute is
explicit that administrative penalties accrue only from the date of a
"notice of noncompliance" (Section 120(d)(3)(C); 42 U.S.C.
7420(d)(3)(C)).
/49/ As we noted in our brief in opposition to certiorari (at 14-15),
Congress is currently considering proposed amendments to the Clean Air
Act regarding EPA review of SIP revisions. We will keep the Court
apprised of any pertinent developments.
/50/ Issues which may arise in future cases are context-specific, and
per se rules would generally be inadvisable. The reasonableness inquiry
should be informed, however, by the Agency guidelines on SIP revision
processing (see p. 23, supra). While those guidelines have been adopted
for internal Agency purposes and do not confer rights on other persons,
they generally illuminate a proper reconciliation of the need for prompt
action on SIP revisions with the need to comply with rulemaking
requirements and to carry out the important review role that Congress
intended.
APPENDIX
GENE MCNARY, COMMISSIONER OF IMMIGRATION AND NATURALIZATION, ET AL.,
PETITIONERS V. HAITIAN REFUGEE CENTER, INC., ET. AL.
No. 89-1332
In The Supreme Court Of The United States
October Term, 1989
The Solicitor General, on behalf of Gene McNary, Commissioner of
Immigration and Naturalization, et al., petitions for a writ of
certiorari to review the judgment of the United States Court of Appeals
for the Eleventh Circuit in this case.
Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Petitioners, defendants below, /1/ are Gene McNary, Commissioner of
Immigration and Naturalization; Richard Smith, Acting District
Director, Immigration and Naturalization Service, District Office Number
6, Thomas Fisher, District Director, Immigration and Naturalization
Service, District Office Number 26; Lewis DeAngelis, Director,
Immigration and Naturalization Service Regional Processing Facility for
the Southern Region; Immigration and Naturalization Service, Department
of Justice; James A. Puleo, Acting Associate Commissioner for
Examination, Immigration and Naturalization Service; Terrance M.
O'Reilly, Assistant Commissioner for Legalization, Immigration and
Naturalization Service; Dick Thornburgh, Attorney General of the United
States; and the United States Department of Justice. The respondents,
plaintiffs below, are Haitian Refugee Center, Inc., a not-for-profit
corporation; Roman Catholic Diocese of Palm Beach; Marie Gizele
Angrand; Germaine Cadet; Rosita Delva; Dieumercie Desir; Joseph
Saintil Dieudonne; Gerard Henry; Marie France Jean-Philippe; Novamise
Julien; Francklin Joseph; Sylvia Lindor; Recol Neus; Rose Pierrecina
Lebon Pierre; Marie Philomene Servilien; Hector Trejo Tamayo; Juan
Tamayo Vega; Marie Raquel Viera; and Jeanette Vixama.
The opinion of the court of appeals (App., infra, 1a-17a) is reported
at 872 F.2d 1555. The opinion and order of the district court (App.,
infra, 18a-54a, 55a-57a) are reported at 694 F. Supp. 864.
The judgment of the court of appeals was entered on May 23, 1989. A
petition for rehearing was denied on October 10, 1989. App., infra,
58a-59a. On December 28, 1989, Justice Kennedy extended the time within
which to file a petition for a writ of certiorari to and including
February 17, 1990. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
The pertinent provisions of the Immigration and Nationality Act, 8
U.S.C. 1105a, 1160, are set forth in an appendix (App., infra, 60a-63a).
The Immigration Reform and Control Act of 1986 provides that there
shall be no judicial review of a determination "respecting an
application" for Special Agricultural Worker (SAW) status except in the
courts of appeals on review of a deportation order (8 U.S.C. 1160(e)).
The question presented in this case is whether this provision precludes
a federal district court room exercising general federal question
jurisdiction over an action alleging a pattern or practice of procedural
due process violations by the Immigration and Naturalization Service in
its administration of the SAW program.
1. The Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No.
99-603, 100 Stat. 3359, "represent(ed) the most comprehensive
immigration reform effort in the United States in 20 years." S. Rep. No.
132, 99th Cong., 1st Sess. 18 (1985); H.R. Rep. No. 682, 99th Cong., 2d
Sess., Pt. 1, at 51-55 (1986) (describing history of legislation). As
an integral part of that effort, Congress established two major
legalization programs that permitted certain undocumented aliens in the
United States to obtain lawful resident status. The first legalization
program applied to aliens who had resided continuously and unlawfully in
the United States since January 1, 1982. 8 U.S.C. 1255a. The second
program applied to "Special Agricultural Workers" (SAW) -- those aliens
who had performed at least 90 days of qualifying agricultural work in
the United States during the 12 months ending May 1, 1986. 8 U.S.C.
1160(a).
IRCA provided that applicants for SAW status had to submit their
applications during an 18-month period beginning June 1, 1987. 8 U.S.C.
1160(a)(1)(A). If an applicant established both 90 days of qualifying
agricultural work and his admissibility to the United States as an
immigrant, the Attorney General was required to adjust the alien's
status to that of temporary resident. 8 U.S.C. 1160(a)(1). In a second
phase of the SAW program, such aliens would become eligible for
adjustment of status to that of aliens lawfully admitted for permanent
residence. 8 U.S.C. 1160(a)(2).
Congress conferred authority for administering the legalization
programs on the Attorney General, who in turn has delegated that
authority to the Commissioner of Immigration and Naturalization. 8
U.S.C. 1160, 1255a; 8 C.F.R. 2.1. Under regulations of the Immigration
and Naturalization Service (INS), SAW applications were initially
processed by specially created legalization offices (LO). The LOs were
required to interview each applicant personally, and in such interviews
the applicant had to establish eligibility for SAW status. 8 C.F.R.
210.1(h), 210.2(c)(2)(iv) and (c)(4)(i). Thereafter, the applications
were adjudicated by one of the four INS Regional Processing Facilities
(RPF). 8 C.F.R. 210.1(p). /2/ Whenever a SAW application was denied,
INS regulations required that the alien be given written notice setting
forth the reasons for the denial and the applicant's right to an
administrative appeal. 8 C.F.R. 103.3(a)(2), 210.2(f).
IRCA expressly limits the scope of administrative and judicial review
in the SAW program. Section 1160(e) of IRCA provides: "There shall be
no administrative or judicial review of a determination respecting an
application for adjustment of status under this section except in
accordance with this subsection." 8 U.S.C. 1160(e)(1). The subsection
then directs the Attorney General to establish an "appellate authority
to provide for a single level of administrative appellate review," and
provides that "(t)here shall be judicial review of such a denial (of SAW
status) only in the judicial review of an order of exclusion or
deportation under section 1105a of this title." 8 U.S.C. 1160(e)(2)(A)
and (e)(3)(A). The cited section, 8 U.S.C. 1105a, provides for the
exclusive review of an order of deportation in the courts of appeals.
See Foti v. INS, 375 U.S. 217 (1963); INS v. Chadha, 462 U.S. 919, 938
(1983). Judicial review of the denial of a SAW application is to be
based solely on the record established before the administrative appeals
authority. The findings of fact and determinations in that record are
conclusive absent abuse of discretion or a demonstration that the
findings are contrary to clear and convincing facts in the record as a
whole. 8 U.S.C. 1160(e)(3)(B). Congress enacted virtually identical
provisions for the general legalization program. 8 U.S.C. 1255a(f).
The legalization programs attracted "amnesty" applications on an
unprecedented scale. According to information reported to Congress in
May 1989, nearly 3.1 million applications were filed under the
legalization programs. Of the 1,843,744 applications that had been
adjudicated as of May 1989, 95.7% had been approved. In the general
legalization program, the approval rate was 96.6%, while in SAW, the
approval rate was 92.9%. /3/ The INS anticipated that the overall
approval rate for the SAW program would decline somewhat as it completed
investigation of cases for fraud. Immigration Reform and Control Act of
1986 Oversight: Hearings Before the Subcomm. on Immigration, Refugees
and International Law of the House Comm. on the Judiciary, 101st Cong.,
1st Sess. 400, 403 (1989) (statement of Alan C. Nelson, INS
Commissioner).
2. Respondents are the Haitian Refugee Center (HRC); the Migration
and Refugee Services of the Roman Catholic Diocese of Palm Beach,
Florida (MRS); and 17 individual aliens whose SAW applications were
denied. On June 13, 1988, respondents brought suit against petitioners
in the United States District Court for the Southern District of
Florida. Respondents alleged that the INS had adopted unlawful policies
and practices in making SAW determinations, and that these policies and
practices were resulting in erroneous denials of SAW applications. /4/
Respondents claimed that these policies and practices violated IRCA and
the Due Process Clause. On behalf of themselves and a class consisting
of SAW applicants in the Eleventh Circuit who had been or would be
denied SAW status because of the alleged unlawful practices, respondents
sought declaratory, injunctive, and mandatory relief against the INS
prohibiting those practices. App., infra, 2a, 19a-20a.
Following a hearing, the district court granted respondents' motion
for class certification and for a preliminary injunction. App., infra,
55a-57a. Initially, the court held that it had subject matter
jurisdiction over the action, notwithstanding IRCA's specific and
limited provisions for judicial review. Id. at 36a-40a. The court
reasoned that respondents' complaint fell under its general federal
question jurisdiction because it did not challenge the INS's
determination in any particular case. "(R)ather," the court explained,
the complaint "attacks the manner in which the entire program is being
implemented." App., infra, 38a, citing Haitian Refugee Center (HRC) v.
Smith, 676 F.2d 1023 (5th Cir. 1982), and Jean v. Nelson, 727 F.2d 957
(11th Cir. 1984) (en banc), aff'd on other grounds, 472 U.S. 846 (1985).
The court also rejected petitioners' arguments that the
organizational plaintiffs (HRC and MRS) lacked standing to pursue their
claims against the operation of the SAW program. App., infra, 40a-44a.
The court noted that HRC, whose main function is to provide legal
representation to Haitian refugees, had alleged a direct injury to its
ability to assist the Haitian refugee community, and an indirect injury
to its membership. As to MRS, the court noted that it was a "qualified
designated entity" under IRCA, authorized to assist in the preparation
and submission of applications for SAW status. /5/ MRS alleged that the
INS's practices, by discouraging aliens from applying for SAW status,
had prevented it from performing its mission. Id. at 41a.
Turning to respondents' claim for preliminary relief, the court
concluded that respondents were likely to prevail on the merits and had
satisfied the other requisites for a preliminary injunction. The court
therefore entered a detailed preliminary injunction ordering INS, inter
alia, to vacate the denials issued to certain SAW applicants and remedy
the violations that the court believed had affected the determinations
in those cases. App., infra, 55a-57a. /6/ Other paragraphs of the
injunction ordered INS to take the following steps with regard to the
processing of SAW applications (id. at 57a):
(6) The Legalization Offices shall maintain competent
translators, at a minimum, in Spanish and Haitian Creole, and
translators in other languages shall be made available if
necessary;
(7) The INS shall afford the applicants the opportunity to
present witnesses at the interview including but not limited to
growers, farm labor contractors, co-workers, and any other
individuals who may offer testimony in support of the applicant;
(8) The interviewers shall be directed to particularize the
evidence offered, testimony taken, credibility determinations, and
any other relevant information on the form I-696. /7/
3. Petitioners sought review of paragraphs (6), (7), and (8) of the
preliminary injunction in the court of appeals, and challenged the
district court's jurisdiction to entertain this action. The court
granted a stay of those paragraphs pending appeal, but after briefing
and argument, the court of appeals affirmed, holding that the district
court had properly exercised jurisdiction over this case and had not
abused its discretion in granting a preliminary injunction. App.,
infra, 1a-17a.
The court began by holding that 8 U.S.C. 1160(e) did not preclude the
district court from exercising federal question jurisdiction. Stating
that it "had previously considered and rejected this argument," the
court explained that HRC v. Smith, supra, and Jean v. Nelson, supra,
established the propriety of district court jurisdiction to review
"allegations of systematic abuses by INS officials." App., infra,
9a-10a. Applying the principles announced in those cases, the court
said (id. at 11a):
In this action, appellees do not challenge the merits of any
individual status determination; rather, like the plaintiffs in
Haitian Refugee Center v. Smith and Jean v. Nelson, they contend
that defendants' policies and practices in processing SAW
applications deprive them of their statutory and constitutional
rights.
In addition, the court found inapplicable the exhaustion-of-remedies
requirement of 8 U.S.C. 1105a. The court stated that the exhaustion
requirement was not triggered because "the individual plaintiffs here do
not seek substantive review of any individual ruling respecting their
status," but only "challenge the adequacy of the procedures employed in
the processing of their SAW application." App., infra, 12a. The court
further refused to apply prudential exhaustion principles, because it
concluded that even if the plaintiffs had pressed their claims through
the administrative process, the chances that INS would revise its
policies in response to the claims of a single applicant were "remote."
Id. at 13a (citing Mathews v. Eldridge, 424 U.S. 319, 330 (1976)). As
to the organizational plaintiffs, the court held that exhaustion was
"clearly" inapplicable because they "had no remedy to exhaust." App.,
infra, 11a.
The court also rejected petitioners' argument that the organizational
plaintiffs lacked standing. The court believed that petitioners had
challenged only the organizations' standing to raise the rights of third
parties, but it dismissed that argument because the district court had
found that the organizations had a cognizable injury in their own right.
App., infra, 11a n.10.
Having disposed of the jurisdictional issues, the court of appeals
held that the issuance of the preliminary injunction did not constitute
an abuse of discretion. The court stated that the right of SAW
applicants to apply for temporary residency, and to substantiate their
claims to eligibility, must be accorded the protections of due process.
Applying the three-factor test of Mathews v. Eldridge, supra, and Landon
v. Plasencia, 459 U.S. 21 (1982), the court upheld the provisions of the
injunction requiring INS to provide adequate translators at SAW
interviews, to permit applicants to call witnesses at such interviews,
and to particularize evidence offered, testimony taken, and evidentiary
determinations on its forms for such interviews. App., infra, 13a-17a.
This case presents a question of great importance in the governance
of the legalization programs mandated by Congress in 1986. The court of
appeals held that district courts have jurisdiction to entertain
sweeping challenges to the policies and practices employed by INS in
administering IRCA. That decision is contrary to the language and
structure of IRCA's carefully crafted jurisdictional provisions. The
court's decision permits circumvention of the sole avenue for judicial
review under IRCA intended by Congress: a petition to a court of
appeals for review of an order of deportation. By so holding, the court
has sanctioned the improper intervention of federal district courts into
the day-to-day business of administering the immigration laws.
Moreover, the court of appeals' decision conflicts with the holding of
the D.C. Circuit in Ayuda, Inc. v. Thornburgh, 880 F.2d 1325, 1337
(1989), petition for cert. pending, No. 89-1018, which construed the
virtually identical jurisdictional provisions applicable to the general
legalization program.
The resolution of this conflict is of intense practical significance
to INS. Numerous IRCA cases, based on the same jurisdictional theory as
that accepted by the court below, have been filed in district courts
around the country. These cases have caused substantial disruption to
INS's processing of tens of thousands of legalization applications.
Because the decision below undermines the scheme for judicial review
embodied in IRCA and fundamentally alters the balance of
responsibilities between the INS and the courts, this Court's review is
warranted. /8/
1.a. Congress carefully structured the SAW program to channel all
judicial review of INS determinations to the courts of appeals in the
review of a deportation order. The statute provides in all-encompassing
terms: "There shall be no administrative or judicial review of a
determination respecting an application for adjustment of status under
this section except in accordance with this subsection." 8 U.S.C.
1160(e)(1). In the following paragraphs, the subsection spells out
precise procedures intended to provide the exclusive method of review.
The subsection requires the establishment of "a single level of
administrative appellate review," and unequivocally states that "(t)here
shall be judicial review of such a denial (of a SAW application) only in
the judicial review of an order of exclusion or deportation under
section 1105a of this title." 8 U.S.C. 1160(e)(2)(A) and (e)(3)(A).
Section 1105a, in turn, requires that a deportation order be reviewed
only in a court of appeals. /9/ Congress could hardly have chosen
clearer or more forceful language to express its intention to preclude
any judicial review of a "determination respecting an application" for
SAW status, other than in the court of appeals following the entry of a
deportation order.
The present action raises claims that are squarely covered by IRCA's
jurisdictional provisions, and thus cannot be brought in district court.
The complaint alleged that the individual plaintiffs (and the class
they sought to represent) were denied SAW status because of alleged
unlawful procedures employed by INS in adjudicating their applications.
For example, the plaintiffs alleged that INS imposed an improper burden
of proof on SAW applicants; that INS denied SAW applicants the
opportunity to present witnesses; that INS failed to furnish
translators at government expense; and that INS provided defective
notices of denial, hindering the ability of rejected SAW applicants to
prosecute an administrative appeal. Complaint, paras. 64, 80-82, 86.
Each of these claims directly attacks the process used by INS to make a
determination respecting entitlement to SAW status. Hence, they could
all have been raised before the INS's Administrative Appeals Unit, which
provides administrative review of denials in the legalization programs.
See 8 C.F.R. 103.3(a)(2), 210.2(f). The same claims could be raised in
the court of appeals in the review of a deportation order. INS v.
Chadha, 462 U.S. at 938 ("the term 'final orders' in (Section 1105a)
'includes all matters on which the validity of the final order is
contingent'"). Consequently, respondents' claims are properly
characterized as seeking review of a "determination respecting an
application" for SAW status -- precisely the type of claim that is
governed by 8 U.S.C. 1160(e). /10/
Although respondents claimed to attack only a pattern or practice of
conduct independent of particular cases, the relief that the complaint
requested, and that the court granted, belies that claim. The complaint
sought, in addition to prospective changes in INS procedures, an order
requiring INS "to set aside all denials of SAW applications filed by
Plaintiffs and members of the class they seek to represent who are
subject to the practices, policies, and procedures addressed in this
complaint," and "to reconsider all (such) SAW applications." Complaint,
Prayer for Relief, paras. D(8)-D(9). Likewise, the district court
ordered the INS to vacate some notices of denial, to reconsider other
denials, and to afford still other applicants new opportunities to
submit evidence. App., infra, 56a.
Such individualized relief makes manifest that the complaint's
purpose was to achieve, on a mass scale, review and reversal of the
INS's denials of SAW applications in particular cases. That reading of
the complaint is no less accurate simply because respondents stopped
short of asking that any applicant actually be granted SAW status by the
court. The complaint simply combined many individual procedural claims,
none of which was cognizable individually in district court, into one
composite claim. But claims that are jurisdictionally barred
individually cannot be salvaged simply by combining them into a class
action. See Snyder v. Harris, 394 U.S. 332 (1969) (aggregation of
claims not permitted for purposes of the jurisdictional-amount
requirement in a class action founded on diversity jurisdiction).
In an analogous context, this Court has rejected arguments that
individual plaintiffs can bypass restrictions on judicial review by
purporting to attack general policies rather than individual results.
In Heckler v. Ringer, 466 U.S. 602 (1984), three plaintiffs had
undergone a form of surgery and had unsuccessfully pursued a claim for
reimbursement from the Secretary of Health and Human Services through
some, but not all, layers of administrative review. A fourth plaintiff
had not undergone the surgery at all, but claimed that the Secretary's
refusal to allow payment for that type of surgery precluded him from
obtaining it. All sued in district court to challenge the Secretary's
reimbursement policy, although the applicable statute provided that
judicial review was available only after the Secretary rendered a "final
decision" on a particular claim.
Like the respondents here, the plaintiffs in Ringer contended that
their suits were permissible because they challenged only the
Secretary's "'procedure' for reaching her decision," not the underlying
decisions on their benefits claims. 466 U.S. at 614. This Court
rejected the purported distinction. As to the three plaintiffs who were
in the midst of the administrative process, the Court said that "it
makes not sense to construe the claims * * * as anything more than, at
bottom, a claim that they should be paid for their * * * surgery." Ibid.
Explaining that the procedural challenges were "inextricably
intertwined" with the underlying benefits claim, the Court concluded
that "all aspects of respondents' claim for benefits should be channeled
first into the administrative process which Congress has provided for
the determination of claims for benefits." Ibid. The Court expressly
rejected the view that "simply because a claim somehow can be construed
as 'procedural,' it is cognizable in federal district court by way of
federal-question jurisdiction." Ibid. /11/
Just as the claimants in Ringer sought to evade the judicial review
provisions of the Medicare Act by casting their challenge as a
procedural one, respondents here sought to avoid the force of Section
1106(e) by contending that they were challenging only policies and
practices of the INS, not any determinations respecting their
applications for SAW status. That distinction is untenable. The
procedures challenged by respondents are integral parts of INS's
determinations of eligibility. The burden of proof, the ability to call
witnesses, and the presence of translators all concern the process by
which a particular claim is adjudicated, a process that takes on meaning
only because of the outcome it produces. Such procedures can readily be
challenged in an administrative appeal and, ultimately, in a court of
appeals in the review of a deportation order; hence, review of those
procedures in district court is precluded by IRCA. Because the courts
of appeals have jurisdiction over such matters, this is not a case where
district court jurisdiction is required in order to avoid construing
IRCA to preclude all judicial review. Compare Webster v. Doe, 486 U.S.
592, 603 (1988); Lindhahl v. OPM, 470 U.S. 768, 778 (1985). /12/
The court also erred in upholding the district court's jurdisdiction
over the claims of the organizational plaintiffs. MRS predicated its
right to sue on its status as a "qualified designated entity," which the
statute charged with assisting applicants. It claimed that the INS's
conduct discouraged eligible applicants from filing applications and
thereby prevented MRS from performing its mission under IRCA. HRC
simply claimed injury to itself because of an impairment of its ability
to assist its members and the diversion of its resources. Complaint,
paras. 17-18; App., infra, 41a. /13/ Organizations such as MRS and
HRC, of course, cannot obtain review of the operation of the SAW program
by raising claims in a petition for review of an order of deportation.
But far from suggesting that such organizations are free to bring
district court challenges to substantive or procedural aspects of the
SAW program (unencumbered by the need to exhaust administrative
remedies), the absence of a provision giving such parties judicial
recourse suggests that Congress did not intend to authorize them to
mount such challenges at all.
"(W)hen a statute provides a detailed mechanism for judicial
consideration of particular issues at the behest of particular persons,
judicial review of those issues at the behest of other persons may be
found to be impliedly precluded." Block v. Community Nutrition
Institute, 467 U.S. 340, 349 (1984). Although there is ordinarily a
presumption favoring judicial review, it is overcome "whenever the
congressional intent to preclude judicial review is 'fairly discernible
in the statutory scheme.'" Id. at 351 (quoting Data Processing Service
v. Camp, 397 U.S. 150, 157 (1970)). See also Clarke v. Securities
Industry Ass'n, 479 U.S. 388, 399 (1987). In Block, this Court applied
those principles in rejecting a claim that consumers could challenge
administrative milk-handling orders free from the exhaustion
requirements applicable to milk producers and handlers, the parties
subject to those orders. The absence of any express provision for
consumers to raise such challenges, the detailed scheme governing
challenges by other parties, and the overlap of the consumers' interest
with that of other parties supported the view that Congress had not
intended to permit judicial review at the instance of consumers. The
same principles are applicable here.
Although Congress provided for "qualified designated entities" in
order to encourage aliens to come forward and apply for legalization, it
did not designate them as litigation agents for aliens. Far less did
Congress identify any role under IRCA for a group, like HRC, that simply
seeks to assist aliens. To allow either group to sue would vastly
enlarge the range of possible lawsuits involving IRCA, while frustrating
the contemplated layer of administrative review within the INS. For
example, many of the procedural objections made in this case could be
resolved administratively by appeals from individual applicants, without
the need for judicial intervention. It would obviously undermine the
statutory scheme to accord organizational plaintiffs such as MRS and HRC
a right to immediate and unrestricted judicial review under the SAW
program. IRCA was not designed for the benefit of those organizations,
and it affords them no special protection. Moreover, their claims
simply duplicate the claims of applicants. Under these circumstances,
the court of appeals erred in allowing the organizational plaintiffs to
sue. /14/
b. The legislative history and background against which IRCA was
enacted are fully consistent with the natural interpretation of Section
1160(e)'s language. The Senate precursors to IRCA would have gone
farther than the statute later enacted by precluding all judicial review
of decisions or determinations involving the legalization program. /15/
The Senate Report on a 1985 bill, explaining the rationale underlying
such a complete prohibition of judicial review, noted that since the
legalization program was of a "magnitude * * * unique in history," it
would require a "major managerial effort * * * to review the
applications and assure that applicants qualified to be legalized will
actually receive this benefit and that other applicants will not." S.
Rep. No. 132, supra, at 48. Concerned about the incentives and
opportunity of ineligible applicants to delay the disposition of their
cases and derail the program, the Committee stated that the purpose of
precluding all judicial review was "to insure reasonably prompt final
determinations" so that dilatory tactics could not interfere with "the
expeditious operation of the program for others." Ibid. /16/
Although the legislation ultimately enacted provided for limited
judicial review, Congress did not intend to open the door to the kind of
action brought here. As the House Committee Report explained, "(t)he
bill provides for limited administrative and judicial review of denials
of applications for legalization. * * * (T)he applicant can appeal a
negative decision within the context of judicial review of a deportation
order." The sectional analysis of the bill confirms that the provision
governing review in the SAW program "(r)estricts judicial review to the
context of review of an order of exclusion or deportation." H.R. Rep.
No. 682, supra, Pt. 1, at 74, 99.
Given the size of the undertaking involved in the legalization
programs, the restrictions on judicial review serve an important
purpose. According to Congressional Budget Office estimates in 1985, as
many as 5.6 million undocumented aliens lived in the United States, and
as many as 565,000 would apply for legalization. S. Rep. No. 132,
supra, at 64. The legalization program was described as "a
'one-time-only' program to address a problem resulting from the
large-scale illegal immigration of the past." Id. at 16. In light of
the obvious logistical and practical problems in implementing such a
program, Congress had to balance fairness for individual applicants
against the need for overall efficiency in implementing the program for
the benefit of all applicants. There is no evidence that, in effecting
a compromise allowing limited judicial review in the courts of appeals
in the context of deportation proceedings, Congress envisioned that
district courts would have the power (and obligation) to supervise the
processing of thousands of legalization applications under the aegis of
reviewing INS "policies and practices."
c. In rejecting petitioners' jurisdictional arguments, the court
below never analyzed the language used by Congress in limiting judicial
review. Instead, the court relied on two court of appeals precedents
that purportedly created a "pattern and practice" exception to 8 U.S.C.
1105a. App., infra, 9a-11a, citing HRC v. Smith, supra, and Jean v.
Nelson, supra. While we believe those cases were wrongly decided, they
are in any event not controlling here, as neither case involved the
distinctive statutory framework governing judicial review under IRCA.
In HRC, a class action was filed on behalf of over 4,000 Haitians who
claimed that INS was improperly expediting their asylum claims in
violation of their statutory and constitutional rights. INS contended
that Section 1105a, which governs judicial review of all final orders of
deportation and determinations incident thereto, precluded the assertion
of the plaintiffs' claims in district court. 676 F.2d at 1032.
Although finding INS's argument to have "surface appeal," the court
rejected it, reasoning that an INS "pattern and practice" of violating
the constitutional rights of aliens raised a "separate matter" from any
individual case, and was "independently cognizable in the district court
under its federal question jurisdiction." Id. at 1033.
In Jean v. Nelson, the court of appeals relied on the same
jurdisdictional theory. There, a class of Haitian refugees who were in
the midst of exclusion proceedings sued in district court claiming that
they had been denied notice of their right to apply for asylum.
Although Section 1105a permits aliens to challenge only final orders of
exclusion after exhaustion of administrative remedies, the court
conlcuded that those requirements were not applicable. /17/ The court
accepted the distinction drawn in HRC between "an individual challenge
on a preliminary procedural matter," which was barred by Section 1105a,
and "allegations of widespread abuses by immigration officials," which
could be heard in district court under 28 U.S.C. 1331. 727 F.2d at 980
& n.32. In the latter case, the court said, because the legal issues
affect "an entire class of aliens," the purposes of postponing judicial
review until after the entry of individual final orders (the avoidance
of delay and "procedural redundancy") would not be served. Ibid.
In our view, both HRC and Jean err in announcing that the district
courts have power to adjudicate claims that Congress has said may be
heard only in another forum or at another time. It is a fundamental
principle of our judicial system that the jurisdiction of the lower
federal courts is governed by statute. Finley v. United States, 109 S.
Ct. 2003, 2006 (1989); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850).
District courts cannot assume the power to hear cases simply because it
may seem wise, efficient, or prudent to do so. While the court in HRC
said that district courts may draw upon their "equitable powers when a
wholesale, carefully orchestrated, program of constitutional violations
is alleged," 676 F.2d at 1033, and Jean extended that principle to
statutory claims, 727 F.2d at 980 n.32, this Court has only recently
reaffirmed the longstanding principle that such equitable powers cannot
override restrictions imposed by statute. INS v. Pangilinan, 486 U.S.
875, 883 (1988). HRC and Jean advance various policy reasons for
short-circuiting the scheme for judicial review reflected in Section
1105a, but fail to reconcile their analysis with the language and
meaning of the statue. /18/
But even accepting the HRC-Jean approach as to Section 1105a, there
is still no warrant for extending that approach to IRCA. In IRCA,
Congress employed language even broader than that in Section 1105a,
expressly limiting review of all claims "respecting an application"
under the SAW program to petitions for review of an order of
deportation. This incorporates the judicial review apparatus applicable
to deportation cases, but goes farther by adding an explicit prohibition
on any other form of judicial review. Consequently, if there had been
any doubt abouth the result under Section 1105a standing by itself,
Congress removed it. The sole source of judicial power to review
determinations respecting the denials of SAW applications is found in 8
U.S.C. 1160(e). If that section does not afford a basis for review --
and it clearly does not authorize district court actions -- a district
court case must be dismissed for want of judicial power. /19/
2. The decision below conflicts with a decision of the United States
Court of Appeals for the District of Columbia Circuit. In Ayuda, Inc.
v. Thornburgh, 880 F.2d 1325 (D.C. Cir. 1989), petition for cert.
pending, No. 89-1018, the court of appeals, applying virtually identical
jurisdictional provisions in IRCA, held that the district courts lack
jurisdiction to hear challenges to INS rules governing eligibility for
adjustment of status under the general legalization program.
In that case, as here, individuals and organizations that advise
aliens challenged in district court certain INS policies regarding the
administration of the legalization program under IRCA. /20/ Under 8
U.S.C. 1255a(f), the judicial review "of a determination respecting an
application for adjustment of status" in the legalization program may be
had "only in the judicial review of an order of deportation under
Section 1105a of this title." The plaintiffs argued that their challenge
to a rule or policy was not controlled by that language. Rejecting that
argument, the D.C. Circuit stated: "While some courts have found that
allocation of jurisdiction appropriate under the judicial review
provisions of (8 U.S.C. 1105a), apparently because they believed the
only purpose of exclusive court of appeals jurisdiction was to prevent
piecemeal litigation by aliens in the district courts that would delay
deportation, we do not believe Congress intended that result under
IRCA." 880 F.2d at 1331 (citation omitted).
The Ayuda court explained that since a regulation governing
eligibility will affect the outcome of many individual applications,
"the regulation embodies determinations that will impact, and therefore
are 'respecting,' future applications." 880 F.2d at 331. Consequently,
the plain language of Section 1255a(f)(1) (the counterpart to Section
1160(e) for the general legalization program) covers challenges to
rules. Moreover, the court noted, permitting review of rules in
district court would lead to a "rather peculiar" division of
jurisdiction, because the courts of appeals would hear "only the
application of the statute in presumably less important individual
cases," while district courts would review "the much more important
cases involving broad questions of statutory construction that would
apply to a whole class of aliens." 880 F.2d at 1331-1332. Taking note
of the precise and limited standard of review that Congress established
in IRCA, the court added that it "seems inconceivable" that Congress
would have closely cabined court of appeals review of INS regulations as
applied to particular cases, but would have authorized full-scale APA
challenges to such rules in district court. Id. at 1333. The court
concluded that since an alien could later contest the validity of
regulations in the fashion set forth in IRCA -- in review of a
deportation order -- "it follows that the district court lacked
jurisdiction to hear the same claim in a different forum." Ibid. The
court also held that the organizational plaintiffs could not invoke the
district court's jurisdiction, because to allow such actions would
undermine IRCA's jurisdictional scheme. Id. at 1339-1340. /21/
The Ayuda decision dealt with the same jurisdictional language as
that applicable to the SAW program. Compare 8 U.S.C. 1160(e) (SAW) with
8 U.S.C. 1255a(f) (general legalization program). Although Ayuda
involved review of a regulation (as opposed to the challenge to
"policies and practices" here), the same principles are controlling in
both situations. In both cases, the core inquiry is whether Congress
intended to permit district court review of challenges to general
policies adopted by INS in administering the legalization programs. The
Ayuda court's answer to that question is precisely contrary to that of
the decision below.
3. The resolution of the jurisdictional issue is of practical
significance to the INS. Apart from this case and Ayuda, nearly 30
other cases have been filed in district courts across the county to
challenge INS rules and policies under the legalization programs. See,
e.g., Doe v. Nelson, 703 F. Supp. 713, 720-722 (N.D. Ill. 1988);
Zambrano v. Thornburgh, No. S-88-455 EJG (E.D. Cal. Aug. 9, 1988),
appeal pending, Nos. 88-15438, 88-15533 (9th Cir.); Catholic Social
Services v. Thornburgh, No. S-86-1343-LKK (E.D. Cal. June 10, 1988),
appeal pending, Nos. 88-15046, 88-15127, 88-15128 (9th Cir. argued Nov.
18, 1988); LULAC v. INS, No. 87-4757-WDK (C.D. Cal. 1988), appeal
pending, No. 88-6447 (9th Cir.); Immigrant Assistance Project v. INS,
709 F. Supp. 998 (W.D. Wash. 1989), appeal pending, Nos. 89-35345,
89-35593 (9th Cir.). In many of these cases, the district court
expressly found jurisdiction on the same theory espoused by the court
below.
These cases have deeply intruded upon INS's functions under IRCA.
Some courts (like the district court in Ayuda) have ordered detailed
revision of the INS's rules; other courts, despite Congress's express
provision for a one-year application window, have purported to extend
the deadline for aliens to apply for legalization (Catholic Social
Services, supra; LULAC, supra); still others (like the court below)
have ordered the reopening of thousands of applications to correct
purported procedural errors in their processing. INS has been compelled
to defend itself in complex class actions around the country, often
having to address the same legal issue in different cases pending
simultaneously. Discovery and fact finding involving legalization
issues have been particularly intrusive. /22/ Moreover, the INS has
been forced to respond to the plaintiffs' discovery requests for
information deriving from legalization applications despite IRCA's
strict confidentiality provisions. See 8 U.S.C. 1160(b)(6),
1255a(c)(5); note 6, supra. Above all, the district courts'
micromanagement of the INS has distracted it from performing the task
Congress entrusted to the Attorney General: administration of the
legalization effort.
Although the legalization programs have largely concluded their first
phase, we believe that the issues raised here warrant this Court's
attention. Several large cases (including this one) are still pending,
and tens of thousands of legalization applications may be affected by
their outcome. In addition, the second phase of the legalization
process (involving permanent residency) is underway and may engender
similar lawsuits. More fundamentally, provisions that define and limit
opportunities for judicial review are a common feature of many statutory
schemes. Clarifying the proper role of the courts in schemes like the
present one thus has continuing significance, for "(w)hat is of
paramount importance is that Congress be able to legislate against a
background of clear interpretive rules, so that it may know the effect
of the language it adopts." Finley v. United States, 109 S. Ct. at 2010.
The litigation under IRCA has demonstrated that such clarity has not
yet been achieved. Review of the decision below is therefore warranted.
Question Presented
Opinion below
Jurisdiction
Rules involved
Statement
Reasons for granting the petition
Conclusion
TABLE OF CONTENTS
TABLE OF CONTENTS
Questions presented
Opinions below
Jurisdiction
Statutory provisions involved
Statement
A. The statutory framework
B. The proceedings in this case
Summary of argument
Argument:
I. The four-month limit for review of original
SIPs under Section 110(a)(2) does not apply to
110(a)(3)(A)
II. Even if there is a four-month time limit for
review of SIP revision proposals, EPA is not
barred from enforcing the terms of an existing
SIP once that deadline has passed
A. There is no support in the language or
legislative history of The Clean Air Act
for an enforcement bar
B. Less drastic remedies than an enforcement
bar are available to address agency
delay
Conclusion
TABLE OF CONTENTS
Question Presented
Parties to the Proceeding
Opinions below
Jurisdiction
Statutory provisions involved
Statement
Reasons for granting the petition
Conclusion