# Opposition — King v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 966

## Text

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
TT atc nee ccececteceenccascosaccesecsccccecese I
ESTATE
is srssesensnccoons |
ELL SST 2
AEE AT TTT 5
I. ssnccnenassescnoccoscoses 12

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

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