Opposition — Taylor v. United States

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Nos. 76-1 and 76-11 OCT 22 1976

[IPO Joon

In the Supreme Court of the United States ——

OCTOBER TERM, 1976

W. W. TAYLOR, PETITIONER

Vv.

UNITED STATES OF AMERICA

DAVID HALL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ROBERT H. Bork,

Solicitor General,

RICHARD L. THORNBURGH,

Assistant Attorney General,

JEROME M. FEIT,

JOHN HOLLAND FOOTE,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

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CITATIONS

Cases:

Ham v. South Carolina, 409 U.S. 524 .............

Krueger v. United States, 33\ F. 2d 283,

certiorari denied, 379 U.S. 879 ................ee.

Ristaino v. Ross, 424 U.S. 589 .........ccccccceeeeeees

Silverthorne v. United States, 400 F. 2d 627,

appeal after remand, 430 F. 2d 675,

certiorari denied, 400 U.S. 1022 ...................

Smith v. United States, 331 F. 2d 265,

certiorari denied, 379 U.S. 824 ..............c.00

United States v. Arriagada, 451 F. 2d 487 ......

United States v. Braasch, 505 F. 2d 139,

certiorari denied, 421 U.S. 910 ....................

United States v. Mazzei, 521 F. 2d 639,

certiorari denied, 423 U.S. 1014 ...................

United States v. Price, 507 F. 2d 1349 ............

United States v. Soares, 456 F. 2d 431 ............

United States v. Staszcuk, 517 F. 2d 53,

certiorari denied, 423 U.S. 837 ................008

Page

Cases (continued):

United States v. Trotta, 525 F. 2d 1096,

certiorari denied, No. 75-1032, May 19, 1976 .... 5

Walker v. United States, 322 F. 2d 434,

certiorari denied, 375 U.S. 976 ooo ccceccccceeeceeeeees 7

Ware v. United States, 376 F. 2d 717 ............cccccee. 7

Statutes:

Hobbs Act, 18 U.S.C. 195] occ eeeeee FS

Travel Act, 18 U.S.C. 1992 .................... my SY eT

ee I Cs IN UII Sectectecttictvcisacaniece: tics cieeeee 3,4

ere i, I I I ich 3

Miscellaneous:

Federal Rules Criminal Procedure:

RRR EER EES SE seed ere RND OD) 7

IR RRENS RATERS AE Bs erat entree Aller SA Ea 8

In the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1

W. W. TAYLOR, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 76-11

Davip HALL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the district court properly withdrew from

the jury’s consideration an unnecessary portion of one

charge :n the indictment.

2. Whether, under the Hobbs Act, 18 U.S.C. 1951, a

public officeholder acts “under color of official right”

when he induces the payment of money to him in return

for the corrupt use of his public office to influence the

official action of a public agency of which he is not a

member.

(1)

3. Whether the courts below correctly found that a

juror who temporarily became ill after the jury had retired

for deliberations was neither physically nor mentally

incapacitated.

4. Whether the district judge properly communicated

with the ill juror’s physician in order to determine her

medical condition.

5. Whether the district court’s voir dire of prospective

jurors was adequate to test their impartiality in light of

pretrial publicity concerning the case.

6. Whether the district court should sua sponte have

excluded testimony by a co-defendant concerning his plea

of guilty to one charge of the indictment and whether

the court adequately instructed the jury that a co-defend-

ant’s plea of guilty is not evidence of another defendant’s

guilt.

| 7. Whether the district court adequately instructed the

jury concerning petitioner Taylor’s theory of his defense.

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Oklahoma, petitioner

Hall (No. 76-11) was convicted of attempted extortion in

violation of the Hobbs Act, 18 U.S.C. 1951 (Count 1);

conspiracy to violate the Travel Act, 18 U.S.C. 1952, by

traveling in interstate commerce with intent to facilitate

the unlawful bribery of a public official (Count II); and two

counts charging substantive violations of the Travel Act

(Counts III and IV). Petitioner Taylor (No. 76-1) was also

convicted of the conspiracy charge (Count II) and two

substantive violations of the Travel Act (Counts V and VI).!

'R. Kevin Mooney was indicted as a co-defendant in Count II of

the indictment. Prior to trial he pleaded guilty to that charge and

subsequently testified as a witness for the government.

3

Petitioner Hall was sentenced to concurrent terms of three

years’ imprisonment on each count. Petitioner Taylor

was sentenced to concurrent terms of eighteen months’

imprisonment on each count. The court of appeals affirmed

in a comprehensive opinion (Pet. App. A).

The evidence showed that petitioner Hall (who was at

all pertinent times the Governor of Oklahoma) extorted

approximately $50,000 from petitioner Taylor and his

associate, R. Kevin Mooney, in return for Hall’s efforts to

influence the official approval of an investment plan that

Taylor sought to sell to the Oklahoma Public Employees

Retirement System. After Taylor had agreed to pay Hall

what he demanded, both Hall and Taylor conspired to

bribe certain Oklahoma public officials to ensure the suc-

cess of the plan. See Pet. App. 2a-6a.

ARGUMENT

1. Count II of the indictment charged petitioners with

conspiracy to violate the Travel Act, 18 U.S.C. 1952,? by

traveling in interstate commerce with intent to promote a

scheme to bribe public officials in violation of Oklahoma

law, specifically 21 Okla. Stat. 381 and 382.’ Counts III

and IV charged petitioner Hall, and Counts V and VI

charged petitioner Taylor, with substantive violations of

the Act, similarly alleging that both Oklahoma statutes

had been violated.

After a jury had been empanelled, but before evidence

had been taken, the district court ruled that the indict-

ment’s references to 21 Okla. Stat. 382 (accepting a bribe)

218 U.S.C. 1952 makes it a crime to travel in interstate commerce

with intent to promote or carry on certain unlawful activities, including

bribery in violation of state law.

‘21 Okla. Stat. 381 prohibits bribing a public officer, and 21 Okla.

Stat. 382 prohibits the acceptance of such a bribe.

4

were surplusage and that the allegations concerning 21

Okla. Stat. 381 (giving a bribe) were sufficient to charge

a violation of the Travel Act. The court therefore did not

read that portion of the charge to the jury, nor did it in-

struct them on it.

Petitioners contend (Hall Pet. 15-24; Taylor Pet. 6-8)

that the court’s action constituted an impermissible amend-

ment of the indictment. The contention is fully answered

in the opinion of the court of appeals, which correctly

held that neither petitioner was prejudiced by the court's

reduction of the charges against them (Pet. App. 8a-1 la).

By charging a violation of the Travel Act founded on

violations of two Oklahoma statutes, the grand jury neces-

sarily found that probable cause existed to warrant recita-

tion of both of the statutes in the indictment. By deleting

reference to one of those statutes, the trial court did no

more than withdraw a charge from the jury’s considera-

tion, and it is not material whether it did so as a deletion

of surplusage or because it did not believe that the charge

would be sustained by the evidence. The indictment was

in no way enlarged by the court’s decision, and it is un-

disputed that the remaining language charged petitioners

with a violation of the Travel Act. They were fully apprised

of the charges against them and suffered no prejudice on

account of the court’s withdrawal of an unnecessary charge

from the jury’s consideration.

2. Petitioner Hall contends (Pet. 7-15) that he cannot

properly be convicted of extortion “under color of official

right” because he was neither a member of the Board of

Trustees of the Oklahoma Public Employees Retirement

System nor entitled, as Governor, to participate in the

Board’s investment decisions. But, as the court of appeals

correctly held, the statute is aimed at “the wrongful use

of official power” (Pet. App. 12a) regardless of whether

:

the power exercised is de jure or de facto. “So long as the

motivation for the payment focuses on the recipient's

office”—that is, so long as the acts to be performed “can

only be undertaken because of his official position”—then

“the conduct falls within the ambit of 18 U.S.C. §1951”

even if the acts are “unrelated to his [official] duties

***” United States v. Braasch, 505 F. 2d 139, 151

(C.A. 7) (Mr. Justice Clark), certiorari denied, 421 U.S.

910. The facts here plainly satisfy that standard (see Pet.

App. 13a).

As Hall himself recognizes (Pet. 12-14), the other courts

of appeals that have considered the question are in accord

with Braasch.4 To exclude from the statute’s prohibition

the “obtaining [of] money by a public officer for a service

not within the scope of his official duties” (Pet. 9) would

unjustifiably eviscerate the Act and create a loophole not

intended by Congress. The courts of appeals have properly

rejected such efforts to weaken the Hobbs Act, and review

by this Court is not warranted.

3. Petitioner Hall argues (Pet. 24-40) that the district

court should have ordered a mistrial when one juror became

ill during deliberations. He contends that the juror’s in-

gestion of drugs prescribed by her physician influenced

her consideration of the case and deprived petitioner of

his right to an impartial jury.

Whether the juror’s illness or her ingestion of pres-

cription drugs affected er capacity to render an im-

partial verdict is a matter that was fully explored by

4See, e.g., United States v. Trotta, 525 F. 2d 1096, 1100 (C.A. 2),

certiorari denied, No. 75-1032, May 19, 1976; United States v. Mazzei,

521 F. 2d 639, 643 (C.A. 3, en banc), certiorari denied, 423 U.S. 1014,

United States v. Price, 507 F. 2d 1349 (C.A. 4); United States v.

Staszcuk, 517 F. 2d 53 (C.A. 7, en banc), adopting by reference on

this point the panel's opinion (502 F. 2d 875), certiorari denied, 423

U.S. 837.

6

both courts below (Pet. App. 15a-20a, 53a-63a). The

district court found, both at the time of the event and

on petitioner’s subsequent motion for a new trial, that

“the juror was capable of rendering satisfactory jury ser-

vice” (Pet. App. 57a). The court of appeals correctly

sustained that finding, specifically rejecting petitioner’s

contentions that the juror was physically and mentally

incapable of rendering an impartial verdict (Pet. App.

18a-19a). There is no reason for this Court further to

review this factual issue.

4. In a related contention, petitioner Hall argues

(Pet. 40-42) that the district judge acted improperly

when he communicated with the ill juror’s physician to

determine her condition. The impropriety, according to

petitioner, is that the communication took place out of

his presence and amounted to coercion of the physician

to allow the juror to return to jury service. The court

of appeals correctly answered both points (Pet. App.

21a):

The trial judge was faced with a difficult situation

which made it necessary that he communicate with

the doctor and through the doctor with the juror

in order to ascertain her condition. The judge was

the person best qualified to carry out the inquiry.

We see no impropriety in the judge’s communicating

with the juror through the doctor. What was said

does not add up to pressure. * * * [T]he trial court

was careful and conscientious in dealing with a most

difficult problem.

Moreover, since the district court, within hours of the

communication with the physician, held a hearing at

which petitioner was allowed fully to develop the cir-

cumstances surrounding the communication, any error

related to the communication itself could not have

—

7

affected petitioner’s substantial rights. See United States

v. Arriagada, 451 F. 2d 487 (C.A. 4); Ware v. United

States, 376 F. 2d 717 (C.A. 7); Walker v. United States,

322 F. 2d 434 (C.A. D.C.), certiorari denied, 375 U.S.

976.

5. Petitioner Hall next contends (Pet. 42-49) that the

district court’s voir dire of prospective jurors was in-

adequate to ensure that pretrial publicity did not infect

the jury’s consideration of the case, because the court

declined to question the prospective jurors separately

and refused to ask all the questions proposed by petitioner.

The district court asked 19 or 20 questions of the jury

array, including (as summarized by the court of appeals)

“whether anyone had read or heard any news accounts

of the case; whether anyone had discussed it with per-

sons outside the family; if there had been any dis-

cussion within the immediate family and was the juror

the object of persuasion by family members; if anyone

had formed an opinion; if anyone knew of any reason

why she or he could not be fair and impartial; if they

could put aside anything they had read, been told, or

heard about the case” (Pet. App. 23a). The district

court determined that, although all but one of the original

12 jurors had been exposed to news accounts of the case,

none had discussed it with persons outside the family

and none had been the object of persuasion (ibid.).

Two jurors who stated that they had formed an opinion

were dismissed (ibid. ).

Conduct of the voir dire is committed to the sound

discretion of the district court. E.g., Ristaino v. Ross,

424 U.S. 589, 594-595; Fed. R. Crim. P. 24(a). The court

of appeals here correctly concluded that the district

court did not abuse its discretion. “[WJhile the [district]

court’s questions were not so numerous as [Hall’s]}

8

submissions and were not as detailed, they contained the

substance of Hall’s proposed inquiries * * * [and] were

sufficient to test [the jurors’] impartiality” (Pet. App.

24a). The district court “was not required to put the ques-

tion in any part’-ular form, or to ask any particular

number of questions on the subject, simply because re-

quested to do so by petitioner” (Ham v. South Carolina,

409 U.S. 524, 527).

Nor was the court required, in the circumstances of

this case, to question the jurors individually. Unlike the

situation in Silverthorne v. United States, 400 F. 2d 627

(C.A. 9), appeal after remand, 430 F. 2d 675 (C.A. 9),

certiorari denied, 400 U.S. 1922, on which Hall relies,

there was here no “massive, inflammatory publicity

[that] created a hostile climate requiring extremely close

scrutiny of the jurors” (Pet. App. 26a). The court of

appeals properly found on this record that, “although

all of the jurors had heard about the case, the judge’s

questions, his excusing of those with opinions, and their

Statements of impartiality were sufficient to assure

Hall’s being tried by an impartial jury” (ibid.). Peti-

tioner’s disagreement with the court of appeals’ factual

assessment presents no issue warranting review by this

Court.

6. Petitioner Hall also contends (Pet. 49-54) that he was

denied a fair trial because the prosecutor questioned

R Kevin Mooney about his plea of guilty to Count II of

the indictment, questioned Hall about Mooney’s plea,

and referred to the plea during summation. Since Hall

did not object at trial to any of these references to

Mooney’s guilty plea, his contention must be considered

in light of the plain error standard of Rule 52(b), Fed. R.

Crim. P.

During the government’s direct examination of R. Kevin

Mooney, the prosecutor elicited from him that he had been

9

charged as a co-defendant with Hall and Taylor in Count

Il for conspiring to violate the Travel Act and that he had

pleaded guilty to that charge in return for the govern-

ment’s agreement to drop other charges against him

(Tr. 303-304). Later, during cross-examination of Hall,

the prosecutor again referred to Mooney’s guilty plea.

Hall’s theory of defense was that he was the victim of

a “conspiracy” to “set him up” involving the FBI, the

United States Attorney, the Oklahoma Attorney General,

the Internal Revenue Service and others. He stated his

belief that Mooney, although not originally one of the

members of that “conspiracy,” had joined it in return

for the government’s agreement to accept his guilty

plea. Hall stated that he believed that, in furtherance

of the conspiracy against him, Mooney had “testified

falsely” (Tr. 1675) and had pleaded guilty to the conspiracy

charge notwithstanding that he was guilty only of offering

a bribe .(Tr. 1388-1390, 1675). The prosecutor asked

whether Hall believed that Mooney would plead guilty

to a felony and suffer disbarment in order to assist

in furthering this conspiracy against petitioner (Tr. 1677-

1678). Finally, during his summation to the jury, the

prosecutor again referred to the conspiracy of which Hall

complained and to Hall’s assertion that Mooney had

pleaded guilty in furtherance of that conspiracy (Tr.

2187-2188).

The district court instructed the jury that a co-defend-

ant’s guilty plea should not be considered “evidence of

[a defendant’s] guilt” and “gives rise to no inference

against” a defendant at trial (Tr. 2271).5

‘Although the transcription omitted several critical words, so

that the instruction appears garbled (see Pet. 54), there is no

serious question that the district-court in fact instructed the jury

as indicated in the text.

10 ll

When, as in this case, a co-defendant is known to the CONCLUSION

jury and is referred to thr -ughout the trial but does not

appear as an accused, it is permissible for the prosecution

to introduce testimony that explains that absence, so

long as there is a proper cautionary instruction, as there

was here, that a co-defendant’s plea of guilty does not | Gy SNS.

constitute evidence against the defendants on trial. F.g., : RoBERT H. Bork,

Smith v. United States, 331 F. 2d 265 (C.A. 8), certiorari Solicitor General.

denied, 379 U.S. 824; Krueger v. United States, 331 |

F. 2d 283, 286 (C.A. 8), certiorari denied, 379 U.S.

879: United States v. Soares, 456 F. 2d 431 (C.A. 10).

The petitions for a writ of certiorari should be

denied.

RICHARD L. THORNBURGH,

Assistant Attorney General.

The prosecutor’s questions of petitioner and remarks | JEROME M. Feit,

during summation concerning Mooney’s plea properly JOHN HOLLAND FOOTE,

probed and discredited petitioner’s contention that he Attorneys.

was a victim of a conspiracy to frame him.

In these circumstances, Hall has not demonstrated that OCTOBER 1976.

the district court erred, much less that it committed

plain error, in its handling of the evidence concerning

Mooney’s guilty plea.

7. Petitioner Taylor contends (Pet. 5-6) that the district

court erred in refusing to give one of his requested

instructions concerning his theory of the case. The con-

tention was thoroughly considered and correctly rejected

by the court of appeals (Pet. App. 33a-35a), on whose

opinion we rely. As the court correctly concluded, “[tJhe

instructions here were sufficient and comprehensive” and

“correctly stated the law with respect to both belief °

and specific intent,” the issues upon which Taylor's

defense turned (Pet. App. 35a).

———

) DOJ-1976-10