Opposition — Kilrain v. United States

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In the Supreme Court of the Hunited States

OcToBER TERM, 1977

7

Xx

JosePH EDWARD KILRAIN, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WapeE H. McCree, Jr.,

Solicitor General,

JOHN C. KEENEY,

Acting Assistant Attorney General,

WILLIAM G. OTIS,

Louis M. Fiscner,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1432

JosepH EDWARD KILRAIN, ET AL., PETTTIONERS

vy.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

Ihe opinion of the court of appeals (Pet. App. Al-All)

is reported at 566 F. 2d 979.

JURISDICTION

Ihe judgment of the court of appeals was entered on

January 30, 1978 (Pet. App. Al2). A petition for rehear-

ing was denied on February 24, 1978 (Pet. App. Al3),

and the petition for a writ of certiorari was filed on March

21, 1978. The jurisdiction of this Court ts invoked under

28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether the presence at trial of a co-detendant who

had cooperated briefly with the government prior to trial

and who pleaded guilty after two days of trial deprived

petitioners of their Sixth Amendment right to counsel.

ft)

2. Whether the prosecutor's failure to disclose in a bill

of particulars every overt act later offered in evidence to

prove a conspiracy denied petitioners a fair trial.

3. Whether the evidence showed multiple conspiracies.

STATEMENT

After a jury trial in the United States District Court for

the Northern District of Georgia, all petitioners were

convicted of conspiracy to possess marijuana with intent

to distribute, in violation of 21 U.S.C. 846. Petitioners

Piper. Davis and Joseph Kilrain were alsc convicted of

the substantive offense, in violation of 21 U.S.C.

841(aX(1).' Joseph Kilrain was sentenced to consecutive

five-vear terms of imprisonment, to be followed by two

special parole terms of five years. Jack Kilrain was

sentenced to five years’ imprisonment, to be foiiowed by a

five-year special parole term. Piper was sentenced to two

concurrent five-year terms of imprisonment, to be

followed by a five-year special parole term, and Davis was

sentenced to five years’ probation. The court of appeals

affirmed (Pet. App. Al-A12).

|. The evidence at trial showed that the petitioners,

together with co-defendants William Barber and Barber's

wife and with unindicted co-conspirator William Dart,

operated a marijuana distribution network in Atlanta,

Georgia. From January until July 1975, the conspira-

tors made several trips to Texas to bring § mari-

juana to Atlanta (Tr. 123-141, 540-542, 171-181, 544-

'‘Co-detendant Barber pleaded guilty during trial. At the close of

the evidence. the court entered a judgment of acquittal as to co-

defendant Seibert.

§52. 562-563, 603-607, 203-211, 219).? In July 1975, Dart

provided information about the operation to DEA agents,

who obtained a search warrant and seized the marijuana

(Tr. 217-218, 220, 501-505). Petitioner Piper was arrested

immediately, and the arrest of the other petitioners

followed.

2. Co-defendant Barber was arrested in September

1975 and shortly thereafter approached DEA Agent

Balazs and offered to become an informant (Pet. App.

AS: Tr. 451-452, 576). Barber informed Balazs that

Joseph Kilrain would be in Texas in November to pur-

chase marijuana, and Barber arranged tor undercover

DFA agents to be present (Pet. App. AS; Tr. 456-457, 459,

$8 1-583). At the meeting, the pending case against Barber

and Joseph Kilrain was discussed, and Kilrain said he

wanted the DEA informant killed (Pet. App. AS).

Barber stopped cooperating with the government

shortly afterwards and went to trial with his co-

defendants. After the second day of trial, Barber

contacted the prosecutor and agreed to plead guilty and

testify for the government; in exchange, the indictment

against his wife and son was dismissed (Pet. App. AS, Ir.

435-436, 538-540). Barber testified about his ‘ole in

supplying and delivering marijuana to the other

petitioners (Tr. 540-542, 544-553, 560-561, 597-601), but

neither he nor any other witness testified as to any of the

discussions at the November 1975 meeting attended by

Joseph Kilrain and the undercover agents (Pet. App. A5-

A6; R. 1037-1043).

“Tr.” refers to the transcript of the trial, in four volumes, and “R.~

to the record on appeal.

ARGUMENT

|. Petitioners contend (Pet. 10-13) that their Sixth

Amendment rights to counsel were “wrongfully com-

promised” (Pet. 13) when Barber testified as a govern-

ment witness. The claim appears to be twofold. First,

petitioners contend (Pet. 13) that Barber's presence with

undercover DEA agents at the November 1975 meeting

with Kilrain violated the principle that an_ indicted

defendant “has a right to legal representation when the

government interrogates him” (ihid.). See Massiah v.

United States, 377 U.S. 201, Brewer v. Williams, 430 U.S.

387. Second. petitioners claim that Barber's presence at

“strategy discussions” with petitioners’ defense counsel in

the two days of trial before Barber decided to plead guilty

violated their right to counsel. See Weatherford v. Bursey,

429 U.S. 545, 550-559. Both contentions are mnsubstantial.

a. Petitioners’ claim under Massiah and Brewer is

without merit for, as the court of appeals found, “[t}he

agents and the informant who conversed with Kilrain did

not testify at the trial as to the substance of those

discussions, and [petitioners] have not demonstrated that

any of the prosecution's evidence was obtained as a result

of the conversations with Kilrain™ (Pet. App. A6).

Petitioners do not dispute that finding (Pet. 13).

Massiah announced an evidentiary exclusionary rule

only; a defendant's “incriminating statements, obtained by

federal agents under the circumstances [there] disclosed,

could not constitutionally be used by the prosecution as

evidence against Aim at his trial.” 377 U.S. at 207

(emphasis in original). On the other hand, the Court

“acceptted] and. at least for present purposes, completely

approve[d]” the proposition that investigation of the

defendant could continue even after he was indicted and

had obtained counsel (id. at 206-207).

That is all that happened here. Even assuming that the

November 1975 meeting took place under circumstances

which would forbid the use of petitioner Kilrain’s

statements against him at trial, no such use occurred here.

Nor. as the court of appeals found, did petitioners

demonstrate that the meeting indirectly led to evidence

against the petitioners. See Brewer, supra, 430 U.S. at

406-407 n. 12. There was thus no violation of petitioners’

Sixth Amendment rights as a result of the November 1975

meeting.

b. Petitioners’ claim that their rights to counsel were

violated when Barber. who later testified for the

government, took part in defense “strategy discussions” ts

equally misconceived. The claim depends upon

petitioners’ assertion that Barber was a government

informant at the time of the “strategy discussions” (Pet.

11-12). Such an assertion, however. is contrary to the

evidence. which showed that “Barber had ceased operat-

ing as a government informant well before trial began”

(Pet. App. A7). This refutes any claim that the govern-

ment violated petitioners’ Sixth Amendment rights by

planting an informer in attorney-client discussions.

Petitioners’ claim is invalid for another reason. In

Weatherford, this Court rejected the conclusion, reached

by the court of appeals in that case, that “if an undercover

agent meets with a criminal defendant who is awaiting

trial and with his attorney and if the forthcoming trial ts

discussed without the agent revealing his identity, a

violation of the defendant's constitutional rights has

occurred * * *.° 429 U.S. at 550. Rather, the Court found

that no Sixth Amendment violation occurs where the

informant does not testify at trial as to attorney-client

conversations. does not provide the prosecution with

information wvout defense strategy or leads to evidence,

and do.s not otherwise use his presence at such

6

conversations “to the substantial detriment” of the

detendant. /d. at 554.

There is no indication that Barber's presence at

Meetings with petitioners and their counsel produced such

results here. Petitioners acknowledge as much, for they

state that when Barber approached the prosecution in

mid-trial to discuss a guilty plea, “{t}here is no way of

knowing just how much of the conversations with co-

defendants and their counsel was touched upon * * *”

(Pet. 12-13). Petitioners state only that defense strategy

“had to have been discussed” between Barber and the

prosecution (Pet. 12). Because the evidence on appeal

must be viewed in the light most favorable to the

government, Glasser y. United States, 315 U.S. 60. 80, the

court of appeals correctly rejected such speculation, and

that conclusion does not merit further review by this

Court.

Finally, even assuming that Barber did communicate

something he gleaned trom sitting at the defense table,

petitioners have made no showing that it benefitted the

prosecution or handicapped their defense. See, ¢.g., Alein

v. South, 559 F. 2d 189. 197 (CLA. 2): Mastrian v.

Mc Manus, 554 F. 2d 813, 821 (C.A. 8), certiorari denied,

433 US. 913.

2. Petitioners also argue (Pet. 6-9) that they were

denied due process when the government failed to furnish

them with a bill of particulars listing each overt act which

was later introduced at trial in support of the conspiracy

charge. The court below held that petitioners were not

entitled to discover every overt act that the government

intended to use in its case (Pet. App. AlO). This ruling ts

correct and does not require turther review.

It is settled that “[t]he Government need not. when

charging conspiracy, set out with precision each and every

act committed by the conspirators in the turtherance of

the conspiracy.” United States v. Cohen, 518 F. 2d 727,

733(C.A. 2). certiorari denied sub nom. Duboff v. United

States, 423 U.S. 926; Wong Tai v. United States, 273 U.S.

77. 81: see also United States vy. Murray, 527 F. 2d 401,

411 (C.A. 5). Moreover, overt acts not pleaded in the

indictment may nonetheless be introduced at trial in

proving a conspiracy. United States vy. Adamo, 534 F. 2d

31. 38 (C.A. 3). certiorari denied sub nom. Kearney vy.

United States, 429 U.S. 841, United States vy. Perez, 489

F. 2d 51. 70(C.A. 5). certiorari denied, 417 U.S. 945. And

while the purpose of a bill of particulars is to inform a

defendant of the nature of the charges against him and to

minimize surprise at trial, the bill is not to be used to

“obtain a detailed disclosure of the government's evidence

prior to trial.” United States v. Perez, supra, 489 F. 2d at

71: see also United States v. Armocida, 515 F. 2d 49, 54

(C.A. 3). certiorari denied sub nom. Gazal vy. United

States, 423 U.S. 858. Indeed. even where the government

fails to prove any overt act alleged, but proves an

unalleged act as part of the proof of conspiracy, the

conviction will stand. E.g.. United States y. Adamo,

supra, 534 F. 2d at 38-39; United States vy. Fassoulis, 445

F. 2d 13, 19 (C.A. 2). certiorari denied, 404 U.S. 858:

Brulay vy. United States, 383 F. 2d 345(C.A. 9), certiorari

denied. 389 U.S. 986; United States vy. Armone, 363 F. 2d

385 (C.A. 2). certiorari denied, 385 U.S. 957. Finally, the

prosecutor did furnish a bill of particulars listing

numerous overt acts beginning in) March 1975, in

addition to those detailed in the indictment (R. 1019-

1022).

Petitioners claim that a pre-trial order by the magistrate

required the prosecution to furnish each and every overt

act intended to be introduced into evidence (Pet. 6-7).

However. the trial court retused to enforce this order (Ir.

118-119, 124-125. 129, 138-139, 143-144). and “[t}he

determination of whether to impose a specific sanction for

violation of its own orders is * * * surely within the

discretion of the ordinary court.” United States v.

Mackey, 551 F. 2d 967, 970 (C.A. 5). Petitioners have

failed to demonstrate an abuse of the trial court's

discretion.*

3. Petitioners contend (Pet. 9-10) that the introduction

into evidence of overt acts not listed in the indictment or

bill of particulars resulted in proof of multiple con-

spiracies. This contention is unfounded. The proof about

which petitioners complain did not concern a different

scheme but simply the formation of the conspiracy

charged and the first acts in furtherance of it.

The conspiracy alleged in the indictment and described

in the bill of particulars involved the delivery of

marijuana trom Texas to Atlanta, beginning at least in

March 1975 and continuing through July 1975 (Pet. App.

AIS-A18; R. 1019-1022). The only evidence that predated

this period was testimony by Dart, first about a December

1974 meeting with Piper and Joseph Kilrain when Dart

was invited to join their marijuana business (Tr. 123-132)

and, second. about a January 1975 transaction in which

the three men acquired marijuana and arranged its

delivery to Atlanta (Ir. 133-141). Rather than proving a

separate conspiracy, this testimony demonstrated the

background and structure of the charged conspiracy, with

Joseph Kilrain at the head and the others in lesser

positions. This evidence was minimal compared with the

‘Petitioners’ claim (Pet. 7) that they were prejudiced by the

statement in the bill of particulars that the conspiracy was in effect in

March 1976 is without merit. This was an obvious typographical

error, as recognized by the court below (Pet. App. AIO), in light of

other statements in the bill of particulars showing that the conspiracy

existed in early 1975 (R. 1020-1021).

overwhelming proof of the operation [rom March to July.

Finally. the trial court instructed the jury that a single

conspiracy had to be proved (Ir. 778). Under these

circumstances, there was no realistic possibility that the

jury could have convicted petitioners tor any offense other

than the one charged. See. ¢.g.. United States v. Butler,

494 F. 2d 1246, 1255-1256 (C.A. 10): United States vy.

Cruz, 478 F. 2d 408, 413-414 (C.A. 5). certiorar: denied

sub nom. Firentes y. United States, 414 U.S. 910.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respecttully submitted.

Wapt H. McCreer. Jr..

Solicitor General.

Joun C. KEENEY,

Acting Assistant) Attorney

General.

Wittiam G. Ons,

Loui M. FIscHer,

Alorneys.

JuNt 1978.

DOJ. 1978.06