Opposition — Miranda v. United States

In the Siipcesne Gourt of the Hnited States

i OcToser TERM, 1976

ORLANDO MIRANDA, PETITIONER

) ‘

UNITED STATES OF AMERICA

ON PZTITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ROBERT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. FEIT,

ANN T. WALLACE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

ed

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1590

ORLANDO MIRANDA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES §N OPPOSITION

OPINION BELOW.

The opinion of the court of appeals (Pet. App. Sa-

28a) is reported at 526 F. 2d 1319.

JURISDICTION

The judgment of the court of appeals (Pet. App.

3a-4a) was entered on December 3, 1975, and a petition

for rehearing with suggestion for rehearing en banc

(Pet. App. la-3a) was denied oni ‘April 8, 1976. The

petition for a writ of certiorari was filed on April

30, 1976.-The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the district court erred in denying peti-

tioner’s motion to strike two witnesses’ testimony because

of the government’s inadvertent loss of disclosable

evidence.

(1)

ee

2

2. Whether the district court erred in not requiring

disclosure of the identity of an acquaintance of a govern-

ment informant and in refusing to give a “missing

witness” instruction.

3. Whether the district court erred in admitting evidence

of similar acts petitioner committed.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of New York, petitioner

was convicted of possession of cocaine with intent to

distribute and of distributing cocaine, in violation of

21 U.S.C. 841(a)(1) and (bx 1A) and 812. He was

sentenced to concurrent terms of six years’ imprison-

ment, to be followed by four years’ special parole.

The court of appeals affirmed in a comprehensive opinion

(Pet. App. 5a-28a).

As summarized by the court of appeals (Pet. App.

6a-10a), the evidence showed that on March 22, 1974,

petitioner told government informant Gloria Rodas that

he would sell her 10 1/2 ounces of cocaine for $10,000.

On March 25, 1974, agents of the Drug Enforcement

Administration (D.E.A.) searched Rodas and her car,

equipped her with an electronic radio transmitter, and

furnished her with $6,000 in bills whose serial numbers

had been pre-recorded. The agents followed Rodas to

her meeting with petitioner at the latter's cocktail

lounge. Upon her arrival, petitioner asked her to drive

him to a nearby auto body shop.

During the trip, petitioner told her in Spanish that

he had the cocaine with him. When Rodas explained

that she had only $6,000 in her possession, petitioner

agreed to give her the entire quantity of cocaine and

extend her credit for the balance. Petitioner then placed

a packet of cocaine in an attache case on the back

3

seat of the car and withdrew the money. Their conversa-

tion was transmitted to the D.E.A. agents, who recorded

it on a tape cassette. After Rodas left petitioner at the

auto shop, she drove to an appointed rendezvous with

the surveillance agents, who removed the cocaine from

the attache case.

On April 2, 1974, D.E.A. agents again searched Rodas,

furnished her with a transmitter, and gave her $4,000

in pre-recorded bills to pay petitioner for the cocaine.

The payoff was duly recorded by the surveillance agents.

On May 8, 1974, Rodas introduced undercover nar-

cotics agent Pinol to petitioner as her brother. Pinol

thanked petitioner for the favor he had done his sister

and requested that petitioner supply him with a kilogram

of cocaine. Petitioner refused to do so, claiming that he

was getting out of the business.

At trial, D.E.A. agents McMullan and Schnackenberg

corroborated Rodas’ testimony concerning the March

25, 1974, purchase, which they had kept under continuous

surveillance from their car. They also testified that

they had heard the conversation in Spanish between

Rodas and petitioner clearly as it was being recorded

and that D.E.A. agent Castillo had provided them with

a running translation of it. Castillo’s testimony supported

Rodas’ version of the March 25 transaction.

Castillo also testified that when the agents returned

to the D.E.A. office after the March 25 meeting, he

had listened to approximately three minutes of the

recording (Pet. App. 12a). But when Schnackenberg

looked for the cassette a day or two later to have

it transcribed in accordance with the usual practice,

the recording had disappeared. Despite the agents’

repeated and conscientious attempts to locate the cassette,

both at the time of its loss and shortly before trial,

the recording was never found (Pet. App. 13a).

4

The defense moved to suppress Rodas’ and Castillo’s

testimony concerning the March 25 conversation on the

grounds that the recording had been lost by the govern-

ment and that the prosecution had failed to reveal that

such a recording had been made until the second day of

trial. The court permitted petitioner to recall agent

Schnackenberg and to cross-examine Castillo and McMul-

lan at length before the jury concerning the missing

tape (Pet. App. 12a). The circumstances of the loss

of the tape and the efforts made to find it were

thoroughly presented to the jury. The defense did not

request that any further inquiry be conducted concerning

the contents of the tape or the circumstances of its

loss (Pet. App. 13a).

The district court found that while the loss of the

tape “indicates negligence on the part of the govern-

ment agents, the Court cannot find that the loss was

intentional or in bad faith* **™” (Pet. App. 20a).

It held that the absence of the tape did not deprive

petitioner of a fair trial and refused to suppress the

witnesses’ testimony (Pet. App. 23a). Defense counsel

fully utilized the testimony concerning the nature of

the tape and its loss in cross-examining the govern-

ment agents and in his closing argument (Tr. 137, 355,

361, 367), and the jury was instructed that it could

consider all such evidence (Tr. 403-404).

The court of appeals upheld the district court’s finding

that the loss of this evidence was “merely inadvertent

or negligent” and affirmed (Pet. App. 21a).

ARGUMENT

1. Petitioner contends (Pet. 20) that his conviction

should be reversed and the indictment dismissed because

of the loss of the recording and the government's failure

to disclose its making and loss until the second day

5

of trial. However, as the court of appeals correctly

noted (Pet. App. 19a), the courts “have refused to

impose sanctions where the loss [of disclosable evidence]

was inadvertent and not deliberate or in bad faith,

and there was not such prejudice to the defendant as

to deny him a fair trial.” See United States v. Augenblick,

393 U.S. 348; United States v. Rojas, 502 F. 2d 1042,

1044-1045 (C.A. 5); United States v. Sewar, 468 F. 2d

236 (C.A. 9), certiorari denied, 410 U.S. 916; United

States v. Shafer, 445 F. 2d 579, 581-582 (C.A. 7),

certiorari denied, 404 U.S. 986. Here, as shown above,

that evidence demonstrated that the loss of the tape

was inadvertent—the result of negligence and not of

deliberate wrongdoing—and that strenuous efforts were

made to locate it.

The unavailability of the tape did not so prejudice

the defense as to require either suppression of the

evidence or dismissal of the indictment. The govern-

ment’s case against petitioner was strong (Pet. App.

22a). In addition to Rodas’ testimony, it included the

visual observations of the surveillance agents, the

discovery of cocaine in Rodas’ car after her meeting

with petitioner, the agents’ careful pre-encounter

searches to eliminate the possibility that Rodas might

have obtained the cocaine from another source, and

Pinol’s corroborative testimony. Moreover, unlike most

cases involving governmental failure to produce dis-

closable evidence, the significance of the loss of the

tape and the inferences to be drawn from its unavail-

ability were fully argued before the jury. |

Under these circumstances, the district court correctly

concluded that the absence of the tape did not affect

petitioner's substantial rights, and the court of appeals

affirmed that finding (Pet. App. 23a). That decision is

correct and does not warrant further review. See United

6

States v. Johnson, 327 U.S. 106, 112: Mesarosh v.

United States, 352 U.S. 1, 9: cf. United States v.

Agurs, No. 75-491, decided June 24, 1976.

2. Petitioner contends (Pet. 28-31) that the district

court erred in not requiring the government to disclose

the identity of two women, “Georgie” and “Toni”;

in denying a continuance once the identity of one of

the women became know during trial; and in not giving

a “missing witness instruction” concerning the other

woman.

a. As the court of appeals pointed out (Pet. App.

26a), the record shows that although they may have

been elsewhere in the lounge at the time, the two

women were never present at conversations between Rodas

and petitioner concerning narcotics. Thus, neither woman

was a material witness for either the prosecution or

the defense, because the fact that Rodas met petitioner

at his lounge was not in issue.

At petitioner's request, the prosecution produced

“Georgie” and informed the defense that she had

pleaded guilty to a narcotics conspiracy charge and

was cooperating with the government. After inter-

viewing “Georgie,” the defense declined to call her

as a witness (Pet. App. 25a). Nothing in the record

indicated that the other woman, “Toni,” had any

relationship with the government, and the courts

below accepted the government's representation that

it had no control over her or any knowledge of her

whereabouts (ibid.). Thus, the district court prop-

erly did not require the government to disclose her

identity (Pet. App. 26a).'

‘Nor did the trial court err in refusing to instruct the jury

that wt could infer from the prosecution's failure to call the

two women to testify that their testimony would have been

7

b. The decision whether to grant a continuance is within

the discretion of the district court. See, e.g., Hemphill

v. United States, 392 F. 2d 45, 48-49 (C.A. 8), certiorari

denied, 393 U.S. 877. As the court of appeals properly

found (Pet. App. 25a-26a), petitioner did not show

that Georgie’s testimony would have aided his defense.

Under these circumstances, the district court's refusal

to grant a continuance was not reversible error. See

United States v. Conder, 423 F. 2d 904, 908-909 (C.A. 6),

certiorari denied sub nom. Pegram v. United States,

400 U.S. 958.2

3. Petitioner also contends (Pet. 32) that the trial

court erred in admitting testimony of his conversation

with D.E.A. agent Pinol, which occurred approximately

one month after the narcotics transaction for which

he was convicted. Evidence of other crimes, however,

adverse to the government. Since the testimony of the women

would not have been material to any of the issues at trial,

the court properly gave the following general instructions, to

which petitioner did not object (Pet. App. 27a):

[I}f it is specially within the power of the prosecution or

defense to produce a witness who could give material

testimony on an issue or to produce other evidence, the

failure to call the witness may give rise to an inference

that the evidence would be unfavorable.

You cannot draw any such inference with regard to a witness

or exhibit that is equally available to both parties or where

the witness’ testimony would be merely cumulative.

2United States v. Baum, 482 F. 2d 1325 (C.A. 2), upon which

petitioner relies (Pet. 28-29), merely established that the defense

was entitled to a continuance in order to prepare to meet the

testimony of a crucial prosecution witness whose identity was not

revealed until he testified. In this case, on the other hand,

Georgie was not called as a government witness, and there is

no indication that her testimony would be relevant to petitioner's

guilt or innocence.

8

is admissible where, as here, such events are proximate

in time to the charges at issue and are relevant to prove,

inter alia, intent, motive or absence of mistake (Pet.

App. 28a). See, e.g., Spencer v. Texas, 385 U.S. 554,

560-562; Sherman v. United States, 356 U.S. 369, 375;

Nye & Nissen v. United States, 336 U.S. 613, 618;

Fed. R. Evidence 404(b). As the court of appeals correct-

ly held (Pet. App. 28a), petitioner’s conversation with

Pinol was relevant to his intent to possess and distrib-

ute cocaine and was properly admitted under a limiting

instruction that the jury could consider that evidence

only “as bearing on [petitioner’s] intention in connec-

tion with the March 25th charge.”

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

ANN T. WALLACE,

Attorneys.

AuGustT 1976.

DOJ-1976-08