Opposition — King v. United States

OCTOBER TERM, 1976

ANDRE WILLIS KING, PETITIONER

Vv.

UNITED STATES OF AMERICA

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

Wave H. McCree, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

MICHAEL W. FARRELL,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

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CITATIONS

Cases:

Berenyi v. Immigration Director, 385 U.S. 630 .. 6

California v. Green, 399 U.S. 149.0... 5

Carbo v. United States, 314 F. 2d 718, cer-

tiorari denied, 377 U.S. 953 ............. eee. 8, 9

Graver Mfg. Co. v. Linde Co., 336 U.S. 271 ....6

Lutwak v. United States, 344 U.S. 604 ............. lI

Mancusi v. Stubbs, 408 U.S. 204 ..........c00.. 5, 8

Mattox v. United States, 156 U.S. 237) .............. 5

United States v. Apollo, 476 F. 2d 156 ..... 10, 11

United States v. Buschman, 527 F. 2d 1083 ..... 10

United States v. Carter, 493 F. 2d 704 .............. 5

United States v. DeJesus, 520 F. 2d 298, cer-

tiorari denied, 423 U.S. 865 ..................:ee 10

United States v. Honneus, 508 F. 2d 566, cer-

tiorari denied, 421 U.S. 948 oe 10

United States v. Leaman, 546 F. 2d 148 ............ 11

ll

Page n upreme Qourt of the Hnited States

Cases continued: 3 the a th a a

United States v. Moore, 505 F. 2d 620, Octoser Team, 1976

certiorari denied, 421 U.S. 918 ......0...cccccc oe 1! |

United States v. Petrozziello, 548 F. 2d 20 ....... 10 No. 76-971

United States v. Ricketson, 498 F. 2d 367, cer- ANDRE WILLIS KING, PETITIONER

tiorari denied, 419 U.S. 965 ooo ccccccccccceeeees 5 y

United States v. Singleton, 460 F. 2d 1148, cer- UNITED STATES OF AMERICA

tiorari denied, 410 U.S. 984 ooo. cccccccccceeeee 5

United States v. Trotter, 529 F. 2d 806 .......... 8-9 |

; ON PETITION FOR A WRIT OF CERTIORARI TO

United States v. Vaught, 485 F. 2d 320 ............. 8 THE UNITED STATES COURT OF APPEALS FOR

United States v. Wiley, 519 F. 2d 1348, cer- | THE NINTH CIRCUIT

tiorari denied sub nom. James v. United |

a ee 8 | BRIEF FOR THE UNITED STATES IN OPPOSITION

Constitution, statutes and rules: | :

United States Constitution, Sixth Amendment 5. 8 | OPINION BELOW

8 | A FEE Rss Me bathe Ye 3, 5, 8 The opinion of the court of appeals (Pet. App. A) is

i. sn 5 | not yet reported.

Hay Hitt! SUT. sbensenenetenenaniitantticlindeadaeneienate mae 2 | JURISDICTION

MN RE nee oe hae GST 3 2 | The judgment of the court of appeals was entered on

21 U.S.C. 963 | December 16, 1976. The petition for a writ of certiorari

nliie THF . ancsentinsemennoseguiiangpatiniabiinidilitaeaisusinahite 2 | was filed on January 13, 1977. The jurisdiction of this

Federal Rules of Criminal Procedure, Rule 15 .. 5 Court is invoked under 28 U.S.C. 1254(1).

Federal Rules of Evidence: QUESTIONS PRESENTED

REE ere Sr ag 5 A! 8 1. Whether the admission into evidence of videotaped

Rule 801424 E) ...cccccscccsseseeesssesseeeeennnsee 9 | depositions of two government witnesses who were Un-

| available at trial violated the Confrontation Clause of the

! Sixth Amendment.

(1)

2

2. Whether the district court was required to give a

limiting instruction during the course of the trial regarding

the use of co-conspirator statements.

STATEMENT

After a jury trial in the United States District Court for

the Northern District of California, petitioner was con-

victed of conspiracy to import heroin unlawfully into the

United States and to possess and distribute heroin, in

violation of 21 U.S.C. 846 and 963 (Count 1), and of two

counts of unlawful distribution of heroin intended for

importation into the United States, in violation of 21

U.S.C. 959 (Counts III and IV). He was sentenced to 15

years’ imprisonment on Count | to be followed by a

special parole term of nine years, and to ten years’ im-

prisonment on each of Counts III and IV, to be followed

by a special parole term of five years. The sentences

imposed on Counts III and IV were concurrent to each

other but consecutive to that imposed on Count I. The

court of appeals affirmed (Pet. App. A).

The evidence at trial, the sufficiency of which petitioner

does not dispute, revealed a scheme under which petitioner

and other persons obtained heroin in Thailand, transported

it through military cargo channels to Japan, and reshipped

it from Japan to the United States for ultimate distribution. !

Petitioner took part in planning the illegal operation,

assisted in concealing shipments of heroin on the person of a

courier, Gamble, picked up shipments of heroin on their

'Petitioner and three others—Kearney, Lemon and Powell——were

indicted as co-conspirators: several other persons were named as

unindicted co-conspirators. At the first trial, Powell and Lemon were

convicted on various counts, but the jury was unable to reach a verdict

as to the other counts and defendants. On retrial the jury acquitted

Kearney but convicted petitioner and the other defendants on the

remaining counts (Pet. App. 2).

3

arrival in Japan from Thailand, flew to the United States to

oversee the sale of the heroin, and shared substantially in the

proceeds of the operation.

The government’s proof rested in substantial part upon

the testimony of two unindicted co-conspirators, Adams

and Gamble. Neither of those witnesses was available to

testify at trial because both were serving terms of

imprisonment at Yokosuka Prison in Japan for violations

of Japanese narcotics laws (Pet. App. 4).2 On October 25,

1974, therefore, the government moved pursuant to 18

U.S.C. 3503 for leave to take videotaped depositions of

Adams and Gamble in Japan (R. 12-24).3 The district court

granted the motion (R. 57-60), and the defendants and their

counsel, including petitioner, traveled to Japan at

government expense to participate in the depositions, which

were set to be taken before an American consular officer at

Yokosuka Prison. The Japanesé government had, however,

imposed certain restrictions on the defendants’ movements

while in Japan and on the deposition procedure.* The court

of appeals described these restrictions and the deposition

procedure as follows (Pet. App. 6-8):

>Subpoenas had been served upon Adams and Gamble at Yokosuka

Prison, but the prison warden would not permit the two men to travel to

the United States to honor the subpoenas (Pet. App. 4 n. 2).

‘The statute is set out at Pet. App. 4-6 n. 3.

4As the court of appeals noted (Pet. App. 16 n. 10), the Japanese

officials were apparently concerned with the flow of illegal narcotics

traffic through their country and with the prior involvement of the

defendants in that traffic. Defendant Powell had been convicted in

absentia in Japanese court on September 14, 1972, of the felony of

unlawfully possessing morphine, and petitioner had been arrested by the

Japanese authorities on August 31, 1972, for possessing 34 grams of

heroin (R. 386).

4

[The Japanese government] required that the de-

fendants arrive together no earlier than January 20,

1975, and that the depositions begin the next day,

though defense counsel protested that more time was

needed to investigate and prepare for cross-examina-

tion. Defendants were taken from the airport to rooms

prepared for them and they were guarded throughout

their entire stay. They were confined to their rooms

except for the trips to the prison for the deposition

sessions, and they were not allowed to telephone or

otherwise communicate with anyone else in Japan.

They and their room were frequently searched. They

could confer with their attorneys initially only in their

own rooms, but subsequently in counsel’s rooms as

well. There were also rooms set aside for consultation

purposes at the prison. The defendants and their

attorneys could not speak privately with the deponents

prior to their examinations, and a rigid daily schedule

was set for the depositions.

Defense counsel vigorously objected to these con-

ditions, and American consular officials attempted to

have them relaxed, but the Japanese government

would not relent. Claiming that the circumstances were

intolerable, defendants and their counsel withdrew on

the fourth day during the Adams’ deposition and

returned to the United States. The Government

continued under the restrictions, taking the remainder

of Adams’ deposition and all of Gamble’s after the

defense’s departure.

The district court admitted the deposition videotapes

over petitioner’s objections, and the court of appeals upheld

their admission in 4 thorough opinion upon whch we rely

(Pet. App. A).

5

ARGUMENT

1. Petitioner contends (Pet. 20-24) that the introduction

of Adams’ and Gamble’s depositions violated the

Confrontation Clause of the Sixth Amendment. He asserts

first that depositions “can never meet confrontation

requirements” and thus that 18 U.S.C. 3503 and Fed. R.

Crim. P. 15 are unconstitutional on their face (Pet. 22). As

the court of appeals held, however (Pet. App. 8-13), that

contention is contrary to a long line of decisions of this

Court beginning with Mattox v. United States, 156 U.S.

237, and extending to Mancusi v. Stubbs, 408 U.S. 204,

where the Court held that the introduction of testimony

given at an earlier trial of the defendant by a witness no

longer in the country did not violate the Confrontation

Clause so long as the witness was unavailable to testify at the

second trial. See also California v. Green, 399 U.S. 149,

165-166.

In accordance with the principles of those cases, 18

U.S.C. 3503(f) conditions use of the deposition at trial upon

a prior showing that the deponent is unavailable to testify at

trial. Moreover, the statute affords a defendant the right to

be present (at government expense) at the taking of the

deposition, to be represented there by counsel, and to

exercise full rights of cross-examination. It therefore clearly

satisfies the constitutional standard. See United States v.

Ricketson, 498 F. 2d 367 (C.A. 7), certiorari denied, 419

U.S. 965; United States v. Singleton, 460 F. 2d 1148 (C.A.

2), certiorari denied, 410 U.S. 984; United States v. Carter,

493 F. 2d 704 (C.A. 2).

Petitioner argues, however, that the circumstances in

which the depositions were taken in this case effectively

deprived him of the right to cross-examine the deponents

and asserts that the combination of “intimidating

circumstances surrounding the depositions” and the space

6

and time restrictions imposed on the deposition format

made it impossible for defense counsel to ask “informed and

intelligent questions—based on an adequate opportunity to

investigate and discuss testimony with the accused” (Pet. 12,

24).

Petitioner's various complaints about the circumstances

surrounding the depositions do not demonstrate a

deprivation of his right to confrontation and were correctly

rejected by the court of appeals, which held that “{wJhile the

situation may not have been ideal, the defects do not

approach constitutional infirmity” (Pet. App. 15).5 The

objection that the defendants did not learn until their arrival

in Japan that they would not have the .ime they desired to

conduct a pre-deposition investigation there (Pet. 22)

overlooks the fact that the arrival and deposition schedules

were imposed by the Japanese government and were beyond

the control of the United States government, as the

unsuccessful attempts to persuade the Japanese to relax

their requirements demonstrate. Moreover, as the court of

appeals noted (Pet. App. 17), criminal defendants, even in

the United States, have no constitutional right personally to

conduct pre-trial investigations, and defense counsel, who

had been aware of the government's intention to depose the

witnesses for two months, had ample time and freedom

from restraint to conduct whatever investigation in Japan

they deemed appropriate.*

‘This argument. moreover, involves an essentially factual issue which

wo lower courts have already resolved against petitioner: there is no

reason tor this Court to review those determinations. Berenyi v.

Immigration Director, 385 U.S. 630. 635: Graver Mfg. Co. v. Linde Co.,

336 U.S. 271. 275.

‘Furthermore. the government paid for counsel's travel expenses.

Petitioner's claim that his counsel was dependent on “petitioner's

familiarity with the language and relevant locales in Japan™ (Pet. 22)

“He

7

Petitioner's dissatisfaction with the ambiance of Japanese

interrogation rooms and hotel facilities (Pet. 23-24) does not

demonstrate that petitioner and his counsel were restrained

from cross-examining the witnesses as fully as they desired.

The hearing officer imposed no limitations on the number

or type of questions defense counsel could ask.’ Moreover,

the prosecutors worked under the same conditions as the

defense, and, contrary to petitioner's suggestion (Pet. 24),

conference rooms were set aside for the defense team at the

prison, where the defendants and their counsel conferred

privately during the depositions (R. 401).*

simply asserts a type of difficulty that frequently confronts defendants

and their counsel, even in the United States, but does not establish a

constitutional deprivation or a constitutional right of defendants

charged with conduct occurring in part outside the country freely to

accompany their lawyers in wide-ranging investigations around the

globe. Moreover. the claim must be viewed in light of the fact that

petitioner and two of his co-defendants were married to Japanese

nationals and had relatives by marriage living in Japan (R. 388).

“Petitioner alleges that the hearing officer “refused to rule on

objections” (Pet. 24). But the district court later ruled on the objections.

sustaining some and overruling others (R. 436-440). Moreover, the

deferral of ruling on the objections was of considerable potential benefit

to the defense. as the court of appeals noted (Pet. App. 18-19):

“[D}eposition cross-examination is potentially broader and more

revealing for purposes of discovery than trial testimony because the

hearing officer merely recurds objections for later ruling by the court:

the deponent is permitted to answer subject to !ater striking. Fed. R.

Civ. P. 30(c).”

*Furthermore, as the court of appeals noted (Pet. App. 7). while the

defendants initially could confer with their counsel only at the hotel in

their own rooms, they were subsequently permitted to confer in

counsel's rooms as well, and, contrary to petitioner's assertion (Pet. 23).

to confer there privately. And as the court of appeals correctly held (Pet.

App. 17), there is no basis in the record to support petitioner’ s “opinion™

(Pet. 13, 23) that it was unsafe to comer either at the prison or the hotel

for fear of electronic eavesdropping.

8

In short, the procedures used in this case complied with 18 .

U.S.C. 3503 and did not deprive petitioner of his consti-

tutional right to confrontation. Indeed, since the use of

videotapes in this case enabled the jury not only to hear the

witness’ testimony but also to observe their demeanor, the

procedures were at least as consistent with the Sixth

Amendment as the mere reading of prior testimony of an

unavailable witness, which this Court upheld in Mancusi v.

Stubbs, supra.

2. a. Petitioner contends (Pet. 25) that the trial court

erred in failing to instruct the jury, before the introduction

of statements by petitioner’s co-conspirators, that it could

not consider the statements as evidence against petitioner

unless the trial disclosed evidence independent of the

statements that established the existence of the conspiracy

and each defendant's participation in it beyond a reason-

able doubt (see Pet. App. 32 n. 21). The trial court gave such

an instruction at the conclusion of the trial, but petitioner

insists that the court erred in not giving the instruction

before the statements were admitted.

The court of appeals correctly rejected petitioner's claim.

First, whether co-conspirator statements are admissible is

an evidentiary question to be determined by the trial court,

and the admissibility of such statements turns upon the

court’s determination whether independent evidence

adequately establishes the existence of the conspiracy and

the defendant's participation in it.'° Fed. R. Evid. 104(a),

“While the circuits are somewhat in conflict with respect to the

quantum of indevendent evidence necessary to permit the admission of

co-conspirator statements (compare, e.g., United States v. Vaught, 485

F. 2d 320(C.A. 4), and Carbo v. United States, 314 F.2d 718(C.A. 9),

certiorari denied, 377 U.S. 953, with United States v. Wiley, 519 F. 2d

1348. 1350-1351 (C.A. 2), certiorari denied suwh nom. James v. United

States, 423 U.S. 1058, and United States v. Trotter, 529 F. 2d 806, 812

9

801(d)(2)(E). Accordingly, as the Ninth Circuit held in

Carbo v. United States, 314 F.2d 718, certiorari denied, 377

U.S. 953, if the trial court determines that the statements are

admissible it is not required to instruct the jury at all

concerning the quantum of proof necessary to permit the

statements to be considered.

Even if, as some courts apparently believe, the jury is to

determine the facts necessary to establish admissibility, the

instructions by the trial court here at the conclusion of the

trial assigned the jury this task under standards far more

stringent than petitioner was entitled to.'' The court's

failure to instruct the jury before any statement was

introduced that it was to be considered conditionally and

was to be erased from their minds if proof independent of

the statements failed to establish the conspiracy and

petitioner’s role in it by the end of the trial did not impair the

jury’s function; indeed, giving such conditional instructions

would tend hopelessly to confuse the jury by requiring

(C.A. 3)). the appropriate standard is not at issue here. since

independent evidence in this case amply established the conspiracy and

petitioner's participation under any of the suggested tests. Thus, much

of the testimony linking petitioner to the conspiracy and distribution

was not hearsay but eyewitness observation of, for example, petitioner's

participation in the opening and testing of heroin (Deposition of

Adams, pp. 81-91), petitioner's statements directly to a witness that he

was going to fly to Thailand to secure heroin (id. at 103-109), and his dis-

cussion with the witness and others of the sale of the heroin in Cali-

fornia (Deposition of Gamble, pp. 42-44).

''The instruction given by the court conferred a greater benefit than

the law requires, since the jury was told that it could consider the hear-

say statements against petitioner only if it made a preliminary deter-

mination that evidence apart from the hearsay established the con-

spiracy and petitioner's role in it beyond a reasonable doubt. As the

court of appeals noted, under the theory of the instruction given “there

would be no occasion to resort to the declarations; the evidence would

not be considered unless the defendant's guilt had already been

resolved” (Pet. App. 30).

10

it, in the court of appeals’ words (Pet. App. 31), to

try to “compartmentaliz[e] * * * distinct evidence weigh-

ing standards” during the course of the trial.'?

b. Petitioner's assertion (Pet. 25) that review of the de-

cision below is warranted to resolve a conflict among the

circuits is incorrect. The purported conflict is based pri-

marily on the decision of the Fifth Circuit in United States

v. Apollo, 476 F. 2d 156, 162, where, in the context of a

conspiracy prosecution with “marginally sufficient non-

hearsay evidence” of the conspiracy, the court held that

cautionary instructions must be given either at the begin-

ning of the trial or the first time hearsay statements are

introduced.!}

The substantial independent evidence of the conspiracy

and petitioner's role in it distinguishes Apollo from the

'7Moreover. since the admissibility of the hearsay statements against

petitioner was clearly established (see note 10. supra), the court of

appeals correctly held that any failure to give a conditional cautionary

instruction during the trial, if erroneous. was harmless error (Pet. App.

33).

'“U'nited States v. Buschman, 527 F. 2d 1083 (C.A. 7), cited by

petitioner (Pet. 25), in fact supports the decision below. There the court

clearly rejected the Apollo rule, held that the decision of when to issue a

requested cautionary instruction was within the discretion of the trial

court, and upheld the conviction even though. as here. the instruction

was given at the end of the trial.

Although United States v. Honneus, 508 F.2d 566(C.A. |), certiorari

denied, 421 U.S. 948, also relied on by petitioner, purported to adopt the

Apollo rule in the First Circuit. the court in that case held that the failure

to give an adequate cautionary instruction at any time in the trial was

not plair error requiring reversal in the absence of objection. See also

United States v. DeJesus, 520 F. 2d 298 (C.A. 1). certiorari denied, 423

U.S. 865. Moreover. the First Circuit has recently recognized that the

admissibility of co-conspirator statements is an evidentiary question for

the court under the Federal Rules of Evidence, and that its contrary

assumption in Honneus is not correct under the Rules. United States v.

Petrozziello, 348 F. 2d 20, 22-23.

instant case, as subsequent Fifth Circuit decisions indicate.

Thus, in United States v. Leaman, 546 F. 2d 148, 150(C.A.

5), the court limited its holding in Apollo to the

“extraordinary circumstances” of that case, observing that

“the evidence of Apollo’s connection with the conspiracy

was entirely dependent upon hearsay statements of

coconspirators.” See also United States v. Moore, 505 F.2d

620 (C.A. 5), certiorari denied, 421 U.S. 918. Moreover,

since the court below held that even if the timing of the

instructions were error, the error was harmless (Pet. App.

33), there is no conflict between the decision here and

Apollo.

In any event, we submit that as a principal of general

application, the Apollo rule is plainly erroneous. Apollo

incorrectly relied on Lutwak v. United States, 344 U.S. 604,

for the proposition that limiting instructions are required

before the introduction of any co-conspirator statements.

The statements at issue in Lutwak, however, were made

after the conspiracy had ended and thus, under settled law,

were admissible only against the declarant and not against

co-conspirators. The Court’s holding that cautionary

instructions are necessary at the time of their admission was

clearly limited to those declarations that as a matter of law

are not admissible against one or more of the defendants.

344 U.S. at 619. The Court did not hold that the issue of

admissibility is for the jury to decide, that a cautionary

instruction is necessary when a statement is admissible

against the defendant, or that a conditional cautionary

instruction is required if facts have not yet established the

extent to which the statement may be admissible.

However, since the Fifth Circuit has indicated a substan-

tial withdrawal from the broad application of the Apollo

rule and since the instant case is in any event distinguish-

able, further review of the issue in the context of this case is

unnecessary.

12

CONCLUSION

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Wave H. McCree, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

MICHAEL W. FARRELL,

Attorneys.

APRIL 1977.

DOJ-1977-04