Opposition — Ballestrasse v. United States

[Supreme 16 Court, U. S.

FILED

MAY 12 1977

No. 76-1210 MICHAEL ROQAK, JB., CLERK

In the Supreme Court of the Hnited States

OCTOBER TERM, 1976

JOHN BALLESTRASSE, PETITIONER

Vz.

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,

James A. HUNOLT,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

Iu the Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-1210

JOHN BALLESTRASSE, 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

OPINION BELOW

The opinion of the court of appeals (Pet. App. A) is not

reported.

JURISDICTION

The judgment of the court of appeals was entered on

January 31, 1977. The petition for a writ of certiorari was

filed on March 2, 1977. The jurisdiction of this court is

invoked under 28 U.S.C. 1254(1). —

QUESTIONS PRESENTED

1. Whether the district court erred in admitting rebuttal

evidence to impeach petitioner's testimony.

2. Whether, in the circumstances of this case, petitioner

was denied a fair trial because he was cross-examined about

(1)

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whether he had been accompanied by counsel when he

appeared before the grand jury.

fi 3. Whether the district court's instructions adequately

informed the jury that its verdict had to be unanimous.

STATEMENT

After a jury trial in the United States District

Court for the Northern District of California, petitioner

was.convicted on two counts of making a false statement

before a grand jury, in violation of 18 U.S.C. 1623.

He was sentenced to concurrent terms of one year and

one day’s imprisonment. The court of appeals affirmed

(Pet. App. A). |

The evidence at trial showed that Lonnie Murray was

arrested on March 20, 1968, for possession of heroin

with intent to distribute it (Tr. 137, 143). Murray

offered money to the arresting officer and asked if some-

thing could be done about his case. The officer replied

_ that someone wouid contact him the following day. That

evening Murray was released on bail, which had been

provided by petitioner, a bail bondsman in San Francisco

(Tr. 137). The next day petitioner met with Murray

and stated that his case could be taken care of for $6,000

(Tr. 138-139). Murray immediately paid petitioner

that amount and, at petitioner's request, subsequently

gave petitioner an additional $3,000. In return, peti-

tioner promised to arrange for Murray to be sentenced

either to a maximum of one year in the county jail or to

probation (Tr. 139-140).

On September 30, 1970, Joseph “Billy” Ethridge and four

other persons were arrested for narcotics violations (Tr. 21,

59-60). Upon their release on bail provided by petitioner,

Ethridge and the others went to petitioner's office, where

Ethridge inquired how much it would cost to fix the case

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(Tr. 61-63). Petitioner stated that it could be fixed for $7,000

(Tr. 63). The price was thereafter reduced to $2,500, which

Ethridge gave to petitioner in return for petitioner's agree-

ment to obtain dismissal of the charges (Tr. 66-68). Some

time later Ethridge, as an added precaution, also paid Welsh

Long $2,500 or $3,000 to fix his case (Tr. 68-69, 98-99).

When Long informed petitioner of this payment, petitioner

stated that he would take care of the matter and told Long to

leave the case alone (Tr. 99-100).

In March, April, and June 1975, petitioner appeared

before a federal grand jury that was investigating the alleged

bribery of police officers and their failure to enforce the

narcotics laws (Tr. 11). Specifically, the grand jury was

attempting to determine whether a conspiracy existed

among narcotics officers and others in which the officers

were receiving money for the purpose of fixing the cases of

persons arrested for drug offenses. In his testimony before

the grand jury, petitioner falsely denied talking to Ethridge

or anyone else about fixing his case, telling Long that he

would take care of Ethridge’s case, or receiving $9,000 in

return for offering to fix Murray's case (Tr. 209-211).

ARGUMENT

1. Although petitioner testified on direct examination at

trial that he had discussed fixing cases with clients and had

taken money from some of those individuals, he denied that

he had ever discussed fixing a case with police officers or had

ever actually fixed a case (Tr. 292-293). On cross-

examination, petitioner stated that if a client sought to have

his case fixed, he might discuss with the police officer the

possibility of obtaining leniency if the client were to become

an informant or were to return contraband (Tr. 350-351). In

addition, petitioner unequivocally denied that he had

attempted to fix a case on behalf of Gus Foundas or that he

had ever spoken to Foundas about fixing his case (Tr. 362-

365).

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To rebut these assertions, the government called

Foundas, who testified that Tony Ballestrasse, petitioner's

cousin, had told him that he could have the case against

Foundas fixed for $1,000 (Tr. 389-390, 393). The

government also played a recorded telephone conversation

about the case in which petitioner told Foundas, “Well,

we're trying to get something going, but it’s tough. Hey,

nobody wants to touch it” (Tr. 396).

Petitioner contends (Pet. 5-7) that the district court erred

in allowing the introduction of the government's rebuttal

evidence, alleging that Foundas’ testimony was irrelevant to

the charges against him and that the testimony was

inadmissible because it impeached statements that had been

elicited on cross-examination. Petitioner did not object to

this evidence at trial, however, and he therefore must

demonstrate not only that the trial judge abused his discre-

tion but also that the ruling constituted plain error. Fed. R.

Crim. P. 52(b).!

The court of appeals correctly concluded (Pet. App. 2-3)

_ that petitioner’s claims are insubstantial. The mode and

order of presenting evidence are within the reasonable

control of the district court (Fed. R. Evid. 611(a) ) and there

is no general rule barring the introduction of evidence, not

collateral to the issues in the case, in order to rebut

testimony given during cross-examination. See McCormick

on Evidence §47, p. 99 (2d ed. 1972). Foundas’ testimony

indicated that petitioner had engaged in past attempts to fix

criminal cases. Hence, it was strong circumstantial evidence

that he similarly had tried to fix Ethridge’s and Murray's

'Petitioner’s “timely objection” (Pet. 7, n. 3) was based upon an

evidentiary matter wholly unrelated to the issue presented here (Tr.

389).

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cases and that he had lied about these matters in his grand

jury testimony.

Contrary to petitioner’s contention (Pet. 7), the decision

below does not conflict with United States v. Mariani, 539

F. 2d 915(C.A. 2). In Mariani, the court held that illegally

seized evidence, not admissible as part of the government's

case-in-chief, could not be used to impeach a defendant

about matters beyond the scope of his direct examination.

539 F. 2d at 923-924. Here, however, Foundas’ testimony

was not tainted and could have been introduced as part of

the government's direct case in order to prove petitioner's

criminal intent and to dispel the notion that his false answers

were a mistake or accident. See Fed. R. Evid. 404(b); United

States v. Calvert, 523 F. 2d 895, 911-912 (C.A. 8), certiorari

denied, 424 U.S. 911; United States v. Trapnell, 495 F. 2d

22, 25 (C.A. 2), certiorari denied, 419 U.S. 851.

2. Petitioner asserts (Pet. 7-i1) that his Fifth and Sixth

Amendment rights were violated by the prosecutor's

“repeated reference” during cross-examination to the fact

that petitioner retained and consulted counsel before and

during his appearance in the grand jury. Again, however,

petitioner failed to object to this questioning (Tr. 311-312,

356-357, 360), and the claim does not amount to plain error.

As the court of appeals observed (Pet. App. 3), petitioner

testified at trial that he was alone, scared, and confused

when he appeared in the grand jury (Tr. 356). This testimony

obviously was Gesigned to convince the jury that any

inaccuracies in petitioner’s grand jury testimony were the

product of nervousness or confusion—a point that his

counsel reiterated on summation (Tr. 478-479). Reference

to petitioner’s legal representation at the time of his

appearance was admissible to rebut that contention and to

establish that petitioner made the false statements alleged in

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the indictment with criminal intent, which was an element of

the offense.

Grunewald v. United States, 353 U.S. 391. does not

require a different result. There, the Court held that it was

error to permit the defendant to be cross-examined about

his assertion of the privilege against self-incrimination

before the grand jury, in light of the minimal probative value

and potential for extreme prejudice in such questioning. See

Doyle v. Ohio, 426 U.S. 610, 616-620; United States v. Hale,

422 U.S. 171, 177-180. As noted above. however.

petitioner’s frequent consultation with his attorney prior to

and during his grand jury testimony was unquestionably

probative, since it tended to establish that his false

statements were intentional and it rebutted his trial

testimony that he had been “scared to death of the grand

jury. [I was] up there all by myself and I didn’t know what

the hell was going on” (Tr. 356). Furthermore, unlike the

disclosure that a defendant once refused to answer a

question out of fear of incriminating himself, the fact that a

defendant consulted counsel before testifying before the

_ grand jury does not suggest that he may be guilty of acrime.

As the Seventh Circuit recently observed in rejecting a

similar argument (United States v. Kopel, C.A. 7, No. 76-

1601, decided April 19, 1977, slip op. 7):

*Petitioner correctly notes that one of the prosecutor's references

occurred prior to his testimony that he was confused and alone during

his grand jury appearance (Tr. 311-312). Since the later references were

admissible, however. any impropriety in the earlier questions about the

same matter was harmless beyond a reasonable doubt. See. e.g.. /n re

Penn, 443 F. 2d 663. 666 (C.A. D.C.). The jury’s discriminating

verdict finding petitioner not guilty on two of the four counts, all of

which were based on his testimony before the same grand jury

indicates that these brief colloquies were not significant. a fact that is

further underscored by petitioner's failure to object to the questions at

trial.

—+ «a *

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[We] cannot agree with the defendant’s implied asser-

tion that laymen would view a putative defendant's

use of counsel in a grand jury appearance as a “badge

of guilt.” While the Supreme Court in Ul/man v.

United States, 350 U.S. 422, 426 (1956), asserted that

too many Americans viewed the Fifth Amendment

privilege as a “shelter for wrongdoers,” it has never

found such widespread misunderstanding regarding

the Sixth Amendment guarantee of effective assistance

of counsel. Certainly today, when the layman fre-

quently views our criminal justice system as being

confusing and complex, consultation with an attorney

is not tantamount to an admission of involvement or

guilt.

3. Petitioner contends (Pet. 12) that the district court's

instructions inadequately informed the jury that its ver-

dict on Count One of the indictment had to be unanimous.

Count One contained four specifications of perjury, all

of which related to petitioner's denials that he had ever

discussed fixing Ethridge’s case with anyone. Petitioner

asserts that because the jury was instructed only that its

verdict must be unanimo .s, the jury may have found him

guilty on Count One without agreeing on which particular

statement was false.’

Petitioner's claim relates solely to Count One of the

indictment. Because he received concurrent sentences

on that count and on Count Four, the Court need not con-

sider the issue. Barnes v. United States, 412 U.S. 837,

‘Petitioner does not challenge the validity of the inclusion of more

than one allegedly false statement in a single count. See Rule 7(c).

Fed. R. Crim. P.; United States vy. Bonacorsa, 528 F. 2d 1218. 1221

(C.A. 2). certiorari denied, 426 U.S. 935: United States v. Edmondson,

410 F. 2d 670, 673, n. 6 (C.A. 5). certiorari denied. 396 U.S. 966.

8

848, n. 16. Moreover, since petitioner neither objected at

trial to the district court’s charge to the jury, nor proposed

additional instructions to remedy the alleged defect, he

is foreclosed from raising the claim at this stage of the

proceedings. See Fed. R. Crim. P. 30; Vitello v. United

States, 425 F. 2d 416, 423 (C.A. 9), certiorari denied, 400

U.S. 822.

In any event, there is nothing to petitioner’s assertions.

The jury was instructed that, as to those counts containing

more than one allegedly false statement, a conviction could

be sustained on proof that any one such statement was

perjured (Supp. Tr. Il, p. 9). The jury was also instructed

that its verdict had to be unanimous (Tr. 501). Those

instructions were sufficient, for “{iJt is assumed that a

general instruction on the requirement of unanimity suf-

fices to instruct the jury that they must be unanimous on

whatever specifications they find to be the predicate of

the guilty verdict.” United States v. Natelli, 527 F. 2d

311, 325 (C.A. 2), certiorari denied, 425 U.S. 934. See also

Vitello v. United States, supra, 425 F. 2d at 422-423;

_ United States v. Armone, 363 F. 2d 385, 398 (C.A. 2),

certiorari denied, 385 U.S. 957.

Yates v. United States, 354 U.S. 298, Stromberg v.

California, 283 U.S. 359, and the remaining cases cited by

petitioner (Pet. 12) have nothing to do with the requirement

that the jury’s verdict be unanimous. Each holds that when a

case has been submitted to the jury on alternative theories,

the resulting conviction must be set aside if one or more of

those theories is constitutionally invalid. Petitioner does not

challenge the validity of his conviction as to any of the

specifications of perjury in Count One, nor could he, in light

of the substantial evidence of falsity of each of those

statements. See United States v. Natelli, supra, 527 F. 2d at

325.

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wape H. McCree, JR..

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

JAMES A. HUNOLT,

Attorneys.

May 1977.

DOJ-1977-05