Opposition Brief — Devin Smith, Petitioner v. United States

No. 17-6780

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

DEVIN SMITH, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOHN P. CRONAN

Acting Assistant Attorney General

FINNUALA K. TESSIER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

the

court

of

appeals’

determinations

that

the

district court did not violate petitioner’s constitutional rights

by interfering with his right to testify, and that the government

introduced overwhelming evidence of petitioner’s guilt, were such

an extraordinary departure from the accepted and usual course of

proceedings as to warrant an exercise of this Court’s supervisory

power.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 17-6780

DEVIN SMITH, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-24) is not

published in the Federal Reporter but is available at 706 Fed.

Appx. 241.

JURISDICTION

The judgment of the court of appeals was entered on August 8,

2017.

The petition for a writ of certiorari was filed on November

6, 2017.

1254(1).

The jurisdiction of this Court is invoked under 28 U.S.C.

2

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Michigan, petitioner was convicted on

two counts of sex trafficking by force, fraud, or coercion, in

violation of 18 U.S.C. 1591(a) (2012), and one count of sex

trafficking of children, in violation of 18 U.S.C. 1591(a) (2012).

Judgment 2.

He was sentenced to 360 months of imprisonment, to be

followed by five years of supervised release.

court of appeals affirmed.

1.

a.

From

2011

Id. at 3-4.

The

used

and

Pet. App. 1-24.

to

2013,

petitioner

force

coercion to cause multiple victims -- H.E., B.W., A.S., and M.R.

(a minor) -- to engage in commercial sex acts in Michigan.

Pet.

App. 1-2; Presentence Investigation Report (PSR) ¶¶ 10-31.

At

trial,

the

victims,

government

law-enforcement

introduced

officers,

testimony

of

petitioner’s

and

of

petitioner’s

two

confederates, as well as forensic evidence taken from petitioner’s

laptop and iPhone.

petitioner

used

Pet. App. 2.

“Backpage.com”

to

The evidence showed that

advertise

prostitution services known as “dates.”

the

Id. at 2, 4.

victims

for

The victims

described how petitioner coercively trafficked them for sex using

violence, intimidation, and the provision of crack cocaine, upon

which the victims became dependent.

Id. at 2.

The victims described the extent of the abuse that they

suffered from petitioner.

Among other things, H.E. testified that

3

petitioner held her against her will and frequently beat her,

including on one occasion when petitioner beat her so badly that

her body was covered in bruises and she felt her shoulder had been

dislocated.

PSR ¶¶ 11, 21.

When petitioner met M.R., she was 16

years old, pregnant, living on the streets, and looking for a way

to support herself and her baby.

PSR ¶ 27.

Petitioner and his

confederate prostituted M.R. online, and would beat her if she

failed to earn enough money from prostituting.

After

petitioner

and

miscarried her baby.

his

confederate

PSR ¶ 29.

PSR ¶¶ 28-29.

assaulted

M.R.,

she

Petitioner did not allow B.W. to

keep any of the money that she received from his prostitution of

her, and instead provided her only with crack cocaine.

PSR ¶ 22.

When B.W. escaped to East Lansing, Michigan, petitioner tracked

her down and brought her back to Southfield, Michigan, and began

prostituting her again.

b.

PSR ¶ 24.

A federal grand jury charged petitioner with using force

and coercion to cause three adults (H.E., B.W., and A.S.) and one

minor (M.R.) to engage in commercial sex acts, in violation of 18

U.S.C. 1591(a).

During

Indictment 1.

trial,

petitioner’s

counsel

informed

the

district

court that petitioner “is considering testifying, and I imagine

that would be lengthy, but of course that’s a decision he’s not

going to make until the very end.”

Pet. App. 17.

Later, toward

the end of the trial, petitioner’s counsel requested a five-minute

4

break to confer with petitioner regarding whether he wanted to

testify.

confer.

Ibid.

The court granted petitioner a brief recess to

Ibid.

After reconvening court, but outside the presence of the jury,

and before asking petitioner whether he wished to testify, the

district court expressed its frustration with the pace of the

proceedings.

Pet. App. 17.

The district court stated:

Look, I would prefer not to use expletives here on the

record ... but this group of lawyers and you, [petitioner],

have taken an inordinate and unfair use of [the] jury’s time,

the Court’s time, [the] lawyers’ time, and this is nonsense.

You’ve got decisions to make and we’re going to go ahead, and

we’re not going to put it -- trivialize it away on how many

things happened within oh, an hour and 45 minutes. If you’ve

got an hour -- if you’ve got 15 minutes, that’s probably

enough, if I understand what’s going on. And I’m not

criticizing anybody in particular.

I am saying to nobody in particular that this trial has

taken about twice as long as it should, and I would hope that

-- I guess I’d hope that something could happen now to make

me look like I’m being unreasonable, but hopefully not.

So what’s going on?

Id. at 17-18.

Petitioner’s counsel responded that petitioner had

previously indicated that he did not wish to testify, but had

subsequently asked if he could review a video of his interview

with police before making the decision.

Id. at 18.

Petitioner’s

counsel acknowledged that he did not think the court was likely to

grant the request to review the video. Ibid. Petitioner’s counsel

then requested that the court ask petitioner whether he wished to

testify.

Ibid.

5

The district court declined to ask petitioner whether he

wished to testify, stating that:

[H]e’s not his own lawyer in this case, even though he’s -apparently would like to act like one, and we are going ahead

with this trial ... Basically, what has happened, if there

was a choice made by [petitioner] not to testify, it was made.

It’s been made by dithering around, if nothing else, but it

was made a long time ago I think.

Pet. App. 18.

Petitioner’s counsel again requested that the court

ask petitioner whether he wished to testify.

replied:

words?”

Ibid.

The court

“What is that decision going to be, three words or ten

Ibid.

After petitioner’s counsel informed the court that

it should be a yes or no answer, the court replied: “Well, I know

the answer, as of right now, he’s not testifying.

Now, if we want

to mess around with that, we will, but it’s not going to happen

over there.

You’re getting close to contempt over there.”

Ibid.

The court stated it was time to move on.

Ibid.

Petitioner’s

counsel

on

record

then

stated

that

he

“would

put

the

that

[petitioner] just indicated to me that it was his decision not to

testify.”

Ibid.

The government then requested that the district court conduct

a voir dire of petitioner on the decision whether or not to testify

in order to preserve the record “as to whether or not that’s his

decision, that he made it voluntarily and with the advice of

counsel.”

Pet. App. 18.

The court asked petitioner “you’ve heard

all this, do you choose not to testify?”

Id. at 19.

Petitioner

6

then stated: “Under -- under what was said in the court, I’m going

with what the Court said.

Thank you.”

Ibid.

The jury found petitioner guilty on three of the four counts,

but were unable to reach a verdict on the count regarding A.S.

Pet.

App.

1-2;

Judgment

1-2.

The

district

court

sentenced

petitioner to 360 months of imprisonment, to be followed by five

years of supervised release.

2.

Judgment 3-4.

As relevant here, petitioner argued on appeal that the

district court had infringed his right to testify.

appeals affirmed.

Pet. App. 16-19.

The court of

The court stated that “[t]he

right of a defendant to testify at trial is a constitutional right

of fundamental dimension and is subject only to a knowing and

voluntary waiver by the defendant.”

Id. at 16 (quoting United

States v. Webber, 208 F.3d 545, 550 (6th Cir.), cert. denied, 531

U.S. 882 (2000)).

And the court was “mindful that excessive

judicial interference with the right to testify constitutes a

danger that is of great significance.”

Id. at 17 (quoting Webber,

208 F.3d at 552) (brackets and internal quotation marks omitted).

The court noted, however, that “unless a defendant indicates a

desire to testify or a disagreement with counsel as to the decision

to testify, the district court is not obligated to sua sponte ask

a defendant whether he or she waives the right.”

Webber, 208 F.3d at 552).

Ibid. (citing

7

Although the court of appeals espoused “serious concerns”

about the exchange between the district court and petitioner’s

counsel at trial, and considered it “a close question,” the court

of appeals ultimately “conclude[d] that the district court did not

interfere with [petitioner’s] right to testify.”

Pet. App. 19.

The court of appeals found it “understandable that the district

court

grew

frustrated

with

[petitioner’s]

counsel’s

repeated

requests for the district court to put [petitioner’s] decision

[regarding whether to testify] on the record.”

Ibid.

“Because

[petitioner] at no point indicated he wanted to testify and did

not contest his counsel’s statement that [petitioner] indicated

‘that it was his [i.e., petitioner’s] decision not to testify,’”

the court of appeals determined that the district court did not

unconstitutionally interfere with petitioner’s right to testify.

Ibid. (citation omitted).

The court of appeals also considered petitioner’s argument

that the cumulative effect of several alleged errors, including

the alleged interference with his right to testify, warranted

reversal.

The court determined, however, that in light of the

“overwhelming evidence of [petitioner’s] guilt,” “the cumulative

effect of the district court’s errors did not render [petitioner’s]

trial fundamentally unfair.”

Pet. App. 24.

8

ARGUMENT

Petitioner

asks

this

Court

(Pet.

5-9)

to

exercise

its

supervisory authority to vacate his conviction, arguing that the

district court unconstitutionally interfered with his right to

testify in his own defense.

Petitioner does not argue, however,

that the court of appeals’ decision conflicts with any decision of

this Court or any other federal court of appeals.

And his

challenge to the court of appeals’ unpublished, factbound decision

in

this

case

does

not

warrant

an

exercise

of

this

Court’s

supervisory authority.

1.

A

criminal

defendant

testify on his own behalf.

(1987).

has

a

constitutional

right

to

See Rock v. Arkansas, 483 U.S. 44

The right to testify is personal to the defendant and he

has “‘the ultimate authority’ to determine” whether or not to

exercise it.

Florida v. Nixon, 543 U.S. 175, 187 (2004) (quoting

Jones v. Barnes, 463 U.S. 745, 751 (1983)).

A district court has

no general duty, however, to explain the right to testify to the

defendant or to verify that he is foregoing it.

See, e.g., United

States v. Ortiz, 82 F.3d 1066, 1071 (D.C. Cir. 1996) (collecting

cases); United States v. Joelson, 7 F.3d 174, 178-179 (9th Cir.),

cert. denied, 510 U.S. 1019 (1993).

Rather, it is the defendant’s

counsel’s obligation to advise the defendant of his right to

testify so that the defendant can make a knowing and intelligent

choice.

See Ortiz, 82 F.3d at 1070; United States v. Teague, 953

9

F.2d 1525, 1533-1534 (11th Cir.) (en banc), cert. denied, 506 U.S.

842 (1992); United States v. Campione, 942 F.2d 429, 439 (7th Cir.

1991); United States v. Goodwin, 770 F.2d 631, 637 (7th Cir. 1985),

cert. denied, 474 U.S. 1084 (1986).

The federal courts of appeals thus agree that, so long as a

defendant

does

not

“indicate[ ]

a

desire

to

testify

or

a

disagreement with counsel as to the decision to testify, the

district court is not obligated to sua sponte ask a defendant

whether he or she waives the right.”

Pet. App. 17 (citing United

States v. Webber, 208 F.3d 545, 552 (6th Cir.), cert. denied, 531

U.S. 882 (2000)).

A contrary rule might unnecessarily intrude

into the attorney-client relationship, inadvertently cause the

defendant to believe that his counsel’s defense has been deficient,

or inappropriately influence the defendant’s decision whether to

testify.

See Webber, 208 F.3d at 551-552; Leggett, 162 F.3d 237,

246-247 (3d Cir. 1998), cert. denied, 528 U.S. 868 (1999).

As petitioner notes (Pet. 6), a small number of state courts

have held that a trial court must always advise a defendant of his

right to testify and must obtain an on-the-record waiver of that

right.

See State v. Neuman, 371 S.E. 2d 77, 82 (W. Va. 1988);

People v. Curtis, 681 P.2d 504, 509-510 (Colo. 1984) (en banc);

Culberson v. State, 412 So. 2d 1184, 1186-1187 (Miss. 1982).

But

petitioner does not suggest that this Court grant this petition in

order to consider the circumstances in which such a colloquy might

10

be required, an issue he also did not press below.

Cf. United

States v. Williams, 504 U.S. 36, 41 (1992) (“Our traditional rule

* * *

precludes a grant of certiorari

* * *

when ‘the question

presented was not pressed or passed upon below.’”) (citation

omitted).

2.

Petitioner

instead

challenges

the

court

of

appeals’

determination that, in the particular circumstances of this case,

his right to testify was not infringed.

See Pet. App. 19.

That

factbound challenge does not warrant this Court’s review.

The court of appeals observed that petitioner did not disagree

with his counsel’s statement that it was petitioner’s own decision

not to testify, and the district court subsequently verified that

by asking petitioner directly.

Pet. App. 19.

Petitioner now

contends (Pet. 7) that the court of appeals failed to give adequate

weight to the preceding exchange, in which the district court

criticized petitioner and his counsel.

But there is no indication

that, absent the district court’s statements, petitioner would

have testified.

Even before the statements to which petitioner

objects, petitioner did not state that he wanted to testify;

rather,

petitioner’s

counsel

stated

considering whether to testify.

only

that

petitioner

See Pet. App. 17.

was

The district

court grew frustrated with petitioner’s repeated attempts to cause

delay in the trial, including by requesting to review a video tape

of his interview with police before deciding whether to testify.

11

Id. at 18.

The court of appeals correctly determined that the

district court’s expression of frustration, though of “serious

concern[ ],” did not infringe petitioner’s right to testify.

Id.

at 19.

At all events, that case-specific determination does not call

for the exercise of this Court’s supervisory authority.

this

Court

“has

a

significant

interest

in

Although

supervising

the

administration of the judicial system,” Hollingsworth v. Perry,

558 U.S. 183, 196 (2010), it exercises its supervisory authority

not to correct individualized errors made by courts of appeals,

see Sup. Ct. R. 10(a), nor to police the conduct of district courts

during trials, but rather “to prescribe rules of evidence and

procedure that are binding in” the lower federal courts. Dickerson

v. United States, 530 U.S. 428, 437 (2000).

Thus, for example,

the Court has used its supervisory authority “to invalidate local

rules that were promulgated in violation of an Act of Congress.”

Hollingsworth, 558 U.S. at 196 (citing Frazier v. Heebe, 482 U.S.

641, 645 (1987)).

authority

to

Likewise, the Court has used its supervisory

ensure

properly constituted.

(2003).

that

a

federal

appellate

panel

has

been

See Nguyen v. United States, 539 U.S. 69

But petitioner cites no case in which this Court has

exercised its supervisory authority to admonish a district court

for its conduct during a particular trial.

See Stephen M. Shapiro

et al., Supreme Court Practice § 4.16, at 277 (10th ed. 2013) (“An

12

appeal to the Court’s ‘supervisory power’ over routine procedural

issues, absent other relevant factors, is unlikely to suffice” to

warrant certiorari) (citation omitted).

3.

The petition should be denied for the additional reason

that, even if the district court’s statements criticizing delays

in the trial proceedings constituted excessive interference with

petitioner’s right to testify, that error is not structural and

would be subject to harmless-error analysis under Chapman v.

California, 386 U.S. 18 (1967).

See, e.g., Martinez v. Ylst, 951

F.2d 1153, 1157 (9th Cir. 1991); Ortega v. O’Leary, 843 F.2d 258,

263 (7th Cir.), cert. denied, 488 U.S. 841 (1988); Wright v.

Estelle, 549 F.2d 971, 974 (5th Cir. 1977).

Here,

petitioner

did

not

suffer

petition does not argue otherwise.

that

“[t]he

presented

guilt”

trial.

at

prejudice,

and

the

The court of appeals observed

Government

[petitioner’s]

any

overwhelming

Pet.

App.

evidence

23-24.

Each

of

of

petitioner’s victims testified against him, and their testimony

was corroborated by law-enforcement witnesses and physical and

electronic evidence.

Thus, for example, M.R. testified at trial

that petitioner posted commercial sex advertisements for her, that

he rented hotel rooms and told her how much to charge for sex acts,

that

she

gave

the

money

she

received

from

prostitution

petitioner, and that he was physically violent with her.

C.A. Br. 3.

to

Gov’t

Petitioner was arrested in a hotel room with M.R. and

13

his computer.

Id. at 13-14.

Forensic analysis of his computer

recovered web history for prostitution advertisements for M.R.

Id. at 14.

And petitioner’s computer and cell phone contained

photographs of M.R. used in advertisements.

testified

against

petitioner,

and

her

Ibid.

testimony

H.E. also

was

likewise

corroborated by police officers who, after H.E. escaped from

petitioner’s hotel room, found petitioner in a van in the parking

lot of the hotel, along with H.E.’s shoes.

Id. at 4.

B.W.’s

testimony against petitioner, meanwhile, was corroborated by A.S.,

who also worked as a prostitute for petitioner.

A.S. testified

that she knew B.W. worked as a prostitute for petitioner and that

she saw petitioner beat B.W. in the bathroom of A.S.’s hotel room.

Id.

at

5.

In

light

of

this

petitioner,

any

error

affecting

overwhelming

his

evidence

decision

to

against

testify

was

harmless beyond a reasonable doubt.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

JOHN P. CRONAN

Acting Assistant Attorney General

FINNUALA K. TESSIER

Attorney

MARCH 2018