Opposition — Viner v. United States

No. 77-1272

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1977

ALFRED VINER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wapbe H. McCres, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

Patty ELLEN MERKAMP,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OcTOBER TERM, 1977

No. 77-1272

ALFRED VINER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

“he court of appeals did not write an opinion. .

JURISDICTION

The judgment of the court of appeals was entered on

January 11, 1978. On February 10, 1978, Mr. Justice

Brennan extended the time within which to file a petition

for a writ of certiorari to and including March 12, 1978.

The petition was filed on March 14, 1978, and is therefore

out of time under Rule 22(2) of the Rules of this Court.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to sustain

petitioner’s convictions.

(1)

2

2. Whether co-conspirator statements were properly

admitted against petitioner.

3. Whether the district court should have granted a

mistrial because of improper prosecutorial comment on

the evidence.

4. Whether the trial court correctly instructed the jury

on aiding and abetting.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Pennsylvania, petitioner

was convicted on one count of disiributing heroin, in

violation of 21 U.S.C. 841(aXl), and one count of

conspiring to commit that crime, in violation of 21 U.S.C.

846. He was sentenced to concurrent terms of five years’

imprisonment, followed by a special parole term of three

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

On July 23, 1976, Officer Wallace Mitchell, a

Philadelphia policeman assigned to the Drug Enforce-

ment Administration Task Force as an undercover

narcotics agent, arranged to purchase two ounces of

heroin from Albert Harrington (Tr. 2-15 to 2-17).' The

following day Officer Mitchell met Harrington and gave

him $2,080. Harrington did not have the heroin; he said

that he had to meet someone in front of the Diamond

Company Men’s Store at Korvette’s Shopping Center and

that he would have the drugs if Officer Mitchell met him

there in ten minutes (Tr. 2-17 to 2-18). Harrington then

drove to the shopping center and entered the Korvette’s

lobby. While Harrington was inside, petitioner drove into

‘Harrington and petitioner were indicted together. The day before

petitioner's trial, Harrington pleaded guilty to the distribution count.

He was sentenced to five years’ imprisonment and a special parole

term of three years.

ee

;

the parking lot and parked four spaces from Harrington's

car. Harrington returned to his car, unlocked the doors

on both sides, and sat in the driver’s seat. Petitioner soon

left his car and entered Harrington’s on the passenger

side. He was carrying a “reddish pink box, a small box.”

When petitioner left Harrington’s car ten minutes later, he

was no longer carrying the box. Petitioner returned to his

own car and left the shopping center (Tr. 25-28, 41-44, 2-8

to 2-11, 2-19). Immediately thereafter Harrington met

with Officer Mitchell in another area of the parking lot.

Officer Mitchell went to Harrington’s car and Harrington

handed him a pink tissue box that appeared to be the

same box carried by petitioner into Harrington's car (Tr.

46, 2-19, 2-43). Harrington told Officer Mitchell that the

drugs were inside the box. Beneath the tissues, Officer

Mitchell found 49 grams of heroin. He then paid

Harrington $200 for arranging the sale. Officer Mitchell

saw no similar boxes in Harrington's car (Tr. 2-19 to 2-20,

2-43 to 2-44).

On October 27 and 28, 1976, Officer Mitchell and

Harrington agreed to pool their money to purchase

approximately four ounces of heroin from “Sonny,” the

same supplier who had provided the heroin involved in

the July 1976 transaction (Tr. 29-36, 2-23 to 2-26). Of-

ficer Mitchell obtained $4,000 of government money and

sprayed it with invisible fluorescent ink. He met

Harrington on the evening of October 28, and Harrington

said that they had to meet Sonny in Philadelphia at 10:00

p.m. They drove together to the parking lot of a diner

where the heroin purchase was to take place. Petitioner’s

car was in the lot. Harrington entered the diner alone

and stayed inside for about five minutes. He then returned

2Petitioner’s nickname is “Sonny” (Tr. 29).

4

to the car and asked Officer Mitchell for the money he

had brought. Harrington reported that the heroin had not

yet arrived. He returned to the diner with the money and

came back outside after about two minutes. He then

crossed the street to a supermarket parking lot where he

entered a blue Cadillac driven by his wife. A few minutes

later petitioner left the diner and joined Harrington in the

blue Cadillac. Surveillance officers arrested both

Harrington and petitioner before any drugs were

delivered. The government money sprayed with fluores-

cent ink was found in petitioner's jacket. An additional

$3,430 was recovered from the floor of the rear seat of the

blue Cadillac. No heroin was found (Tr. 34-38,.2-26 to

2-38).

ARGUMENT

1. Completely apart from the statements of co-

conspirator Harrington, the evidence was sufficient to

support petitioner’s conviction on the distribution count.

With respect to the July 24, 1976 transaction, independent

evidence showed that Officer Mitchell gave Harrington

money for the purchase of heroin. Harrington then met

with petitioner, who brought a reddish pink small box to

their meeting and left without the box. Immediately

thereafter, Harrington delivered a pink tissue box con-

taining heroin to Officer Mitchell. There were no other

such boxes in Harrington’s car. This evidence alone was

sufficient to permit the jury to conclude that petitioner

had provided the heroin sold to Officer Mitchell.3

3United States v. Pratt, 429 F. 2d 690 (C.A. 3), and United States

v. Tyler, SOS F. 2d 1329 (C.A. 5), on which petitioner relies, are

factually distinguishable. In Pratt, the appellant was never observed

transferring or carrying anything to his co-defendant but was merely

seen in the company of his co-defendant at the time of the sale. In

Tyler, the appellant was observed carrying a liquor carton to a party.

The government introduced no evidence showing that he was aware

5

2. The government's evidence of petitioner's participa-

tion in a criminal conspiracy with Harrington was

sufficient to sustain petitioner's conviction on the

conspiracy count and to permit the introduction of

Harrington’s statements. In addition to his involvement

in the July 1976 episode, petitioner played a visible role in

the aborted October 1976 heroin transaction. In October,

as in July, Officer Mitchell gave Harrington money to

buy heroin. Again, as in July, Harrington promptly met

with petitioner, and he transferred the government

money to him. Although no heroin was actually trans-

ferred in October, Harrington named petitioner as his

source for both sales.

Petitioner contends (Pet. 23-27, 48-50) that

Harrington’s statements identifying petitioner as his

source should not have been admitted at trial. But

statements by co-conspirator Harrington “during the

course and in furtherance of the conspiracy” are not

hearsay, and are therefore admissible, provided the

government has made “a sufficient showing, by indepen-

dent evidence” that petitioner conspired with Harrington

to distribute heroin. Fed. R. Evid. 801(d)(2)(E); United

States v. Nixon, 418 U.S. 683, 701; Anderson v. United

States, 417 U.S. 211, 218-219; see also Glasser v. United

States, 315 U.S. 60, 74-75. Here the government showed

that in July 1976 petitioner delivered to Harrington a

box containing heroin and that Harrington then sold the

heroin to Officer Mitchell. The government also showed

that in October 1976 petitioner received the $4,000 that

Officer Mitchell had given to Harrington in order to

purchase more heroin. These showings provided ade-

quate foundation for the introduction of Harrington's

statements.

that the box contained narcotics, and in fact there was substantial

evidence that he knew nothing about the box’s contents. Here, by

contrast, the evidence at trial suggested no exculpatory explanation

for petitioner's conduct.

6

Nor did the admission of those statements deprive

petitioner of his Sixth Amendment right to confront the

witnesses against him (see Pet. 61-63). The challenged

statements fell squarely within the co-conspirators’ ex-

ception to the hearsay rule, Fed. R. Evid. 801(d)(2)(E).4

This Court has acknowledged that the hearsay rule and

the Confrontation Clause are designed to protect similar

values (see California v. Green, 399 U.S. 149, 155-156;

Dutton v. Evans, 400 U.S. 74, 86) and has never found a

Confrontation Clause violation where disputed statements

were admitted under the federal co-conspirators’ excep-

tion. See also Ottomano v. United States, 468 F. 2d 269,

273 (C.A. 1), certiorari denied, 409 U.S. 1128; United

States v. Clayton, 450 F. 2d 16, 19-20 (C.A. 1), certiorari

denied, 405 U.S. 975; United States v. Addonizio, 451 F.

2d 49, 71 (C.A. 3), certiorari denied, 405 U.S. 936; United

States v. Leonard, 494 F. 2d 955, 968-970 (C.A. D.C.).

3. Petitioner contends (Pet. 51-54) that the district

court should have declared a mistrial because of improper

prosecutorial comment during summation. The remarks

about which petitioner complains are contained in the

following exchange dealing with events in the diner

parking lot in October 1976 (Tr. 2-99 to 2-100):

{THE PROSECUTOR]: Again, the government is

satisfied with you as jurors to decide this case not

based on speculation, not based on guesswork, but

based on your logical common sense as to what was

going on.

“Harrington's statements to Officer Mitchell that petitioner was the

source of his heroin were intended to explain why Officer Mitchell

had to travel to certain locations (the Korvette’s parking lot and the

Philadelphia diner) in order to obtain the narcotics he wished to

purchase. The statements were thus “in furtherance” of the criminal

conspiracy.

7

It is very obvious there was heroin in here—

[DEFENSE COUNSEL]: I object to what the

government thinks, Your Honor.

[THE PROSECUTOR]: As an advocate, and | am

not invading the province of the jury, believe me, it’s

up to you, but we think—

[DEFENSE COUNSEL]: 1 object again and move

for a mistrial.

THE COURT: This is what you think the evidence

proves.

{THE PROSECUTOR]: What I think the evidence

proves is that there was heroin in here and that

[petitioner] transported it to the car, that he knew

about it, that he was arranging to make a second

transaction which had not occurred yet at the time he

was dealing with the money, which could not be

counted in a short period of time.

Earlier, the prosecutor had advised the jury that “it will be

your decision to make on what the facts are in this case

because what I say are not the facts * * *. * * * [I]t is

your collective remembrance of the evidence that is going

to control” (Tr. 2-65 to 2-66). And the trial court

admonished. the jury that “(t]he speeches of the lawyers

are not part of the evidence and you should not consider

them as such. * * * [Y]Jou are not required to accept the

arguments of either lawyer. It is for you and you alone to

decide the case based on the evidence as it was presented

from the witness stand and in accordance with the

instructions which I am now giving you” (Tr. 2-107 to 2-

108). The prosecutor’s single comment on whet he

thought the evidence proved was not improper and, even

if it were, would not require declaration of a mistrial

under these circumstances.

4. Although he raised no objection at trial, petitioner

now argues (Pet. 54-60) that the district court's instruction

on aiding and abetting was erroneous. Rule 30, Fed. R.

Crim. P., provides that “[n]o party may assign as error

any portion of the charge or omission therefrom unless he

objects thereto before the jury retires to consider its

verdict * * *.” Having made no such objection, petitioner

is precluded from pursuing the matter in this Court.

Moreover, the district court’s instructions were entirely

proper. The court stated (Tr. 2-110 to 2-111):

In the case where two or more persons are charged

with commission of a crime the guilt of one of the

defendants may be established without proof that he

did every act constituting the offense charged because

there is another statute of the United States which

says whoever aids or abets, counsels, commands or

procures the commission of an offense is punishable

as a principal.

So whoever willfully causes an act to be done

which if directly performed by him or another would

be an offense against the United States is punishable

as a principal.

So even though there may not have been a

distribution by [petitioner], if you find he aided and

abetted or counseled or procured the commission of

the offense by someone else, then, of course, he

could be indicted and tried and found guilty as a

principal.

This charge accurately informed the jury of the principle

embodied in 18 U.S.C. 2, namely, that an aider or abettor

is guilty as a principal. See, e.g., Nve & Nissen v. United

States, 336 U.S. 613, 618-620.

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapeE H. McCree, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

Patty ELLEN MERKAMP,

Attorneys.

May 1978.

DOJ-1978-05