Opposition — Roche v. United States

| Supreme Coust, U. S)

FILED }

JUL 201978 |

. No. 77-1685

In the Supreme Court of the United States

OCTOBER TERM, 1978

ANGELO ROCHE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.,

Solicitor General,

PHILLIP B. HEYMANN,

Assistant Attorney General,

JEROME M. FEIT,

DEBORAH WATSON,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

Page

ALLEL LEESON AE AAS TT 1

PE eT ee 1

Questions presented 2

Statement 2

PIII cuikincctcatetitanitacinstbsinicbidlctpinlsiph-nimdibbnies ca 4

Conclusion ____.. eee -_ 13

CITATIONS

Cases:

Blumenthal v. United States, 332 U.S.

ca ected eal 5

Dallago v. United States, 427 F.2d 546. __ 12

United States v. Armedo-Sarmiento, 545

F.2d 785, certiorari denied, 430 U.S.

RRS pak? Sra aie Coote nee 6

United States v. Benter, 457 F.2d 1174,

certiorari denied, 409 U.S. 842... li

United States v. Bertolotti, 529 F.2d 149 i)

United States v. Branker, 395 F.2d 881,

certiorari denied sub nom. Lacey v.

United States, 393 U.S. 1029 re)

United States v. Brawer, 482 F.2d 117,

certiorari denied, 419 U.S. 1051 _ 11

United States v. Bynum, 485 F.2d 490, va-

cated on other grounds, 417 U.S. 903 __. 4

United States v. Magnano, 543 F.2d 431,

certiorari denied, 429 U.S. 1091 5

United States v. Marquez, 424 F.2d 236,

certiorari denied, 400 U.S. 828... 12

United States v. Miley, 513 F.2d 1191,

certiorari denied, 423 U.S. 842 5

Il

Cases—Continued

United States v. Moten, 564 F.2d 620, cer-

tiorari denied, 434 U.S. 959 -

United States v. Murray, 492 F.2d 178,

certiorari denied sub nom. Roberts v.

United States, 419 U.S. 854 -

United States v. Polizzi, 500 F. 2a 856,

certiorari denied, 419 U.S. 1120 _

United States v. Skolek, 474 F.2d 582 _.

United States v. Stromberg, 268 F.2d 256,

certiorari denied, 361 U.S. 863 _

United States v. Tramunti, 513 F. 2d 1087,

certiorari denied, 423 U.S. 832

Statutes :

SL I

21 U.S.C. 841(a) (1) anna en

21 U.S.C. 841(b) (1) (A) A

ti aT

| Ae ETA a Mier

21 U.S.C. 960

nm hw hw hw Wb bY

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 77-1685

ANGELO ROCHE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered

on April 28, 1978. The petition for a writ of certio-

rari was filed on May 26, 1978. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether the evidence established a single con-

spiracy as charge. in the indictment. |

2. Whether petitioner was prejudiced by the joint

prosecution with his eight co-defendants. .

3. Whether the prosecutor in closing argument 1m-

properly vouched for the credibility of government

witnesses.

4. Whether it was proper for the district court to

provide the jury with copies of the indictment.

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of New York, peti-

tioner was convicted of possessing with intent to dis-

tribute a controlled substance, in violation of 21

U.S.C, 812, 841(a)(1) and 841(b)(1)(A) (Counts

IV and VIII), and of conspiring to violate the nar-

eotics laws of the United States, in violation of 21

U.S.C. 951, 952 and 960 (Count I) (Pet. App. 6a-

26a).' He was sentenced to three concurrent 15-year

terms of imprisonment, to be followed by a special

parole term of 15 years. The court of appeals affirmed

(Pet. App. 5a).

The evidence at trial showed the existence of a

widespread narcotics organization whose members

were responsible for the distribution in New York

of hundreds of kilograms of Mexican “brown rock”

’ The indictment charged petitioner and 23 other defendants

in twenty-nine counts with various violations of the federal

narcotics laws.

3

heroin during the period 1973-1975. The conspiracy,

headed by one Fernando Gallardo, was formulated in

order to take advantage of the scarcity of white heroin

in New York during that period by procuring a sup-

ply of Mexican “brown rock” heroin through Califor-

nia sources. Gallardo’s suppliers in California would

import the heroin from Mexico and deliver it to cou-

riers who had flown from New York to Los Angeles

to collect the heroin (Tr. 223-225, 264, 323-325, 351,

370, 381-383, 1345-1346, 1350-1351, 2203-2204).

These couriers would return to New York with the

heroin and there deliver it to a regular group of

wholesale distributors, who in turn would distribute

it to other distributors, among them petitioner (Tr.

235-248, 250-253, 255-257, 271-280, 294-313, 331-

346). The heroin would eventually be sold to the ulti-

mate customer and user of the heroin.

During the early period of the conspiracy, Gallardo

would himself fly to Los Angeles to purchase quanti-

ties of heroin. Once he had established a direct con-

tact with the source of supply in California, Gallardo

cut several of the original conspirators out of the

venture (Tr. 2060-2062). By the Spring and Sum-

mer of 1974, Gallardo had established an organization

of persons who assisted him in distributing heroin in

New York City (Br. 6).

During the latter part of 1974 and 1975, Gallardo

relied upon others, including his brother, his wife,

and several of his brothers-in-law to “stash” heroin

that was flown into New York City from California,

as well as to count and “launder” the proceeds derived

4

from the distribution there of this heroin (Tr. 232-

233, 257-258, 311-312, 315-319, 328-329, 346, 368,

393, 398-400, 415-418, 425-426; Br. 6). At times,

other conspirators assumed temporary responsibility

for the operation of this organization—either because

Gallardo delegated this authority to them (Tr. 2080,

2117), or because Gallardo was incarcerated on state

criminal charges (Tr. 409-410).

ARGUMENT

1. Petitioner contends (Pet. 4-7) that the proof

at trial revealed several independent and separate

conspiracies, rather than the single conspiracy alleged

in the indictment. He rests this contention on the

lack of evidence at trial to show that he was aware

of the entire range of activities of the Gallardo or-

ganization, or the different time periods involved, and

on the “inconsistent identities” of the majority of the

participants. The evidence demonstrates, however,

that the jury, which was properly instructed on the

multiple conspiracy issue (Tr. 3543-3544), see United

States v. Tramunti, 513 F.2d 1087 (C.A. 2), certio-

rari denied, 423 U.S. 832 and United States v. By-

num, 485 F.2d 490 (C.A. 2), vacated on other

grounds, 417 U.S. 903, was justified in finding that

the government had proved the existence of a single,

albeit massive, conspiracy. That evidence revealed a

typical chain conspiracy in which all wholesalers,

couriers, and distributors worked for a core group

controlled by Gallardo and his assistants. Gallardo

organized the trips to California to pick up quantities

5

of heroin ranging up to twelve and one-half kilograms

at a time, and the proceeds from the sales made by

the distributors, including petitioner, were paid to

Gallardo or one of his assistants. The very scale of

the conspiracy’s operation was sufficient for the jury

to infer each defendant’s awareness of the entire ven-

ture, including its vertical and horizontal scope. See,

e.g., United States v. Magnano, 543 F.2d 431, 434

(C.A. 2), certiorari denied, 429 U.S. 1091; United

States v. Miley, 513 F.2d 1191, 1206-1207 (C.A.

2), certiorari denied, 423 U.S. 842. Moreover, the

proof established that the defendants on trial dealt

directly with a distributor designated by Gallardo,’

acted themselves as large-scale distributors, or flew

to California to bring suitcases of heroin to New

York. No defendant dealt in less than quarter-kilo-

gram quantities of heroin. Accordingly, the case is

governed by Blumenthal v. United States, 332 U.S.

539.

Petitioner’s further contention (Pet. 4-6) that the

changes in the conspiracy’s membership and the shift-

ing of roles within the conspiracy over a two-year

period reflected the existence of four or five separate

conspiracies is without foundation. It is well recog-

nized that “[c]onspiracies are often agreements in

flux * * * and a single conspiracy is not transposed

into a multiple one simply by lapse of time, * * *

* Petitioner on four occasions purchased heroin from co-

defendant Raymond Rivera-Rodriguez in late Summer and Fall

of 1974 (Tr. 243-245, 250-251, 271-272, 277-278, 332, 392-393).

6

change in membership * * * or a shifting emphasis in

its locale of operations * * *.” United States v.

Armedo-Sarmiento, 545 F.2d 785, 790 (C.A. 2), cer-

tiorari denied, 430 U.S. 917. Whatever changes in

personnel the conspiracy underwent, or shifting of

roles within the conspiracy, it is evident that Gallardo

headed a single conspiracy consisting of an established

cadre of couriers and distributors, and that Gallardo’s

activity was central to the involvement of all. See

United States v. Moten, 564 F.2d 620, 625 (C.A. 2),

certiorari denied, 434 U.S. 959.

2. Petitioner contends (Pet. 7-9) that the joint

prosecution of nine defendants, combined with the

length of trial and the volume of evidence, denied him

a fair trial. There is, however, no basis for conclud-

ing that the jury was unable to consider the evidence

pointing to petitioner’s guilt independently of the evi-

dence relating to his co-defendants. See, e.g., United

States v. Moten, supra, 564 F.2d at 627.

Although the trial was comparatively long’ and

involved nine co-defendants, the issues were not so

complicated that the jury was unable to differentiate

among the several co-defendants. The trial involved

a simple narcotics conspiracy, proof of which turned

mainly on whether the jury believed government wit-

3 Petitioner to the contrary (Pet. 7-8), the trial was not of

wnusual length. Although some six weeks passed from the

start of jury selection until verdict, the evidence was presented

in only fourteen trial days. The balance of time largely was

accounted for by the four-day week trial schedule, three days

of jury selection, two days of summations, and two days of

deliberations by the jury.

7

nesses who testified to personal dealings in heroin

with the defendants, including petitioner. As the

Second Circuit has stated in a related context, a nar-

cotics conspiracy “[is} not an antitrust or securities

fraud case involving esoteric theories of law and com-

plex business transactions beyond the ken of the ordi-

nary juror. The purchase and sale of hard drugs is

basically a simple operation, easily understandable

* * *” Moten, supra, 564 F.2d at 627.

Indeed, the trial proved sufficiently straightforward

that all defense counsel concurred in requesting the

district judge to dispense with his proposal to marshal

the evidence in his charge to the jury (Tr. 2579), thus

belying the present contention that the evidence at

trial unduly challenged the capacity of the jury to

analyze the matter independently as to each defend-

ant. Moreover, the district court repeatedly instructed

the jury to consider each defendant individually (Tr.

3497, 3528, 3550, 3551, 3555-3556, 3559, 3594, 3595),

and in concluding the charge the court asked each de-

fendant and his attorney to stand in turn, as he called

their names to the jury (Tr. 3595-3596).

That the jury heeded the trial court’s admonitions

was amply demonstrated during the course of its

deliberations. The jury submitted eleven notes to the

court posing questions concerning the evidence at

trial. Of these notes, eight requested the reading of

testimony specifically relating to six of the nine de-

fendants, including petitioner (Tr. 3605-3606, 3607,

3640, 3669, 3670, 3684, 3694). Two of the remaining

notes requested that only testimony directly applica-

8

ble to the defendants on trial be provided (Tr. 3648-

3649, 3669). These notes illustrate that the jurors

considered each defendant individually, properly dis-

tinguishing between the conduct of the defendants on

trial and that of their co-conspirators.*

Finally, petitioner ignores the fact that in a sepa-

rate trial, the same evidence would have been admissi-

ble to demonstrate the substantial scale of the con-

spiracy with which he was charged. As the Court of

Appeals for the Second Circuit stated in United

States v. Stromberg, 268 F.2d 256, 266, certiorari

denied, 361 U.S. 863:

[W]le must not lose sight of the fact that

the difficulties which the appellants envisage stem

from the number of conspirators rather than the

number of defendants on trial. The same evidence

would have been admissible similarly subject to

* Petitioner seiz s (Pet. 8) upon one ambiguous jury note

as reflecting the general confusion of the jury and the preju-

dicial spillover effect of the joint trial. That note (Tr. 3622-

3623) requested “[t]estimony of undercover agents who found

heroin on seven of the defendants, not except Angelo, The Old

Man, and from whom agents bought heroin.” The court de-

cided to respond to this concededly ambiguous request by

having the testimony of all undercover agents read to the jury

(Tr. 3643). That course led to subsequent notes, asking that

the testimony be limited to that relating to the defendants on

trial. In light of the clearly focused deliberations disclosed by

the other notes, the inference petitioner seeks to draw from

one ambiguous message is wholly unwarranted. Further, to

the extent some of the jurors may have misrecollected the

evidence at the time that note was submitted, the reading of

the testimony in response to the note served to refresh their

understanding of the evidence

9

connection and the same problems would have

arisen if each of the appellants had been tried

separately. In the one situation as in the other,

the number of conspirators would have been the

same.

Nor is this a case in which one defendant was affected

by inflammatory evidence which was admissible solely

against a co-defendant, or in which the proof of one

or two defendants on trial overshadowed that offered

against the remainder.*

3. Petitioner alleges (Pet. 9-12) that the govern-

ment improperly vouched for the credibility of its

witnesses by remarking in rebuttal summation that

the jury should acquit the defendants if it thought

the government had suggested to its witnesses that

* Petitioner’s reliance (Pet. 8) on United States v. Branker,

395 F.2d 881 (C.A. 2), certiorari denied sub nom. Lacey Vv.

United States, 393 U.S. 1029, and United States v. Bertolotti,

529 F.2d 149 (C.A. 2), to establish prejudice from the ac

mission of proof of the conspiracy and the conduct of co-

conspirators, is misplaced. In Branker, eight defendants were

tried on an 81 count indictment, the first count charging them

with conspiring fraudulently to obtain tax refunds to which

the recipients were not entitled. There, however, the con-

spiracy count was withdrawn from the jury’s consideration,

with the result that much evidence that would not have been

used against the defendants in a separate trial on the substan-

tive counts was introduced at the joint trial. In Bertolotti, 17

defendants were tried together on an assortment of federal

narcotics violations, the first count of the indictment charging

the defendants and 12 other individuals with one overall con-

spiracy to distribute narcotics. The court found, however, that

the government had merely merged in the indictment several

conspiracies for the sake of convenience, and that the appel-

lants had been prejudiced by the variance. No such circum-

stances exist here.

10

they “frame” innocent people. However, as the court

of appeals found (Pet. App. 4a-5a), such state-

ments are not reversible error when the defense, as

here, has put in issue the question of the government’s

integrity in its handling of its witnesses.

Throughout the trial, the defense attorneys repeat-

edly sought to discredit as fabricated the testimony

of the government witnesses, who were strenuously

cross-examined about the length of time they had

been prepared to testify by assistant United States

attorneys (Tr. 454-457, 1496-1497, 1868-1870, 2236-

2238) and other government agents (Tr. 585, 656-

658, 2234-2236, 2701-2704), about “deals” they had

made with the government (Tr. 670, 704), and about

their probated sentences as compared to the prison

terms of other conspirators (Tr. 643-644, 663). Dur-

ing closing arguments, the defense attorneys continu-

ally characterized the government’s witnesses as

“liars,” “perjurers,” and “con men” who had bought

their way out of jail and “sold the government a bill

of goods,” and whose testimony had been well pre-

pared (Tr. 3098-3100, 3111-3112, 3138-3142, 3145-

3149, 3155, 3186, 3225-3226, 3271A, 3288-3289, 3294,

3304, 3307, 3341-3343, 3346-3347, 3357). They were

further characterized as “pernicious characters” who

were making a living testifying and who were being

“fed and cared for by the government” (Tr. 3106,

3181-5182), which was trying to obtain a conviction

by using perjured testimony (Tr. 3272). Finally,

petitioner’s attorney implied to the jury that a govern-

11

ment agent had suggested to a witness that he impli-

cate petitioner (Tr. 3192-3194).

Although it is improper to put the prestige of the

United States Attorney’s office behind the govern-

ment’s case, it is well settled that statements such as

those made by the government here, to rebut attacks

made directly against government witnesses, and di-

rectly or indirectly against the office of the United

States Attorney, are not reversible error. United

States v. Tramunti, 513 F.2d 1087 (C.A. 2), certio-

rari denied, 423 U.S. 832; United States v. Brawer,

482 F.2d 117 (C.A. 2), certiorari denied, 419 U.S.

1051; United States v. Benter, 457 F.2d 1174 (C.A.

2), certiorari denied, 409 U.S. 842.°

4. Petitioner finally contends (Pet. 13) that the

district court improperly provided the jurors with a

copy of the indictment, notwithstanding the fact that

the substantive counts pertaining to defendants not

on trial had been deleted. This claim is without merit.

* Contrary to petitioner’s assertions (Pet. 11-12), the state-

ments made by defense counsel throughout the trial did “im-

pugn the integrity of the prosecutor’s office.” In Benter, supra,

457 F.2d at 1176-1177, under factual circumstances similar to

those here, the court stated:

[T]he defense brought this line of argument on itself,

{when defense counsel referred to the fact that witnesses

had not been prosecuted nor would they be].

* * * * >

The above defense point insinuated that there was an

agreement between the government and [two of the wit-

nesses] for them to testify and, by implication, the plenti-

ful references to the Government’s witnesses being

“crooks” and “poor liars” constituted a charge that there

was a “frame” of the defendant. To this argument by

inference the Government was entitled to reply * * *.

12

A decision to submit the indictment to the jury is

within the sound discretion of the trial court. United

States v. Polizzi, 500 F.2d 856, 876 (C.A. 9), certio-

rari denied, 419 U.S. 1120; United States v. Murray,

492 F.2d 178, 193 (C.A. 9), certiorari denied sub

nom. Roberts v. United States, 419 U.S. 854; United

States v. Skolek, 474 F.2d 582, 586 (C.A. 10); Dallago

v. United States, 427 F.2d 546, 553 (C.A. D.C.);

United States v. Marquez, 424 F.2d 236, 240 (C.A.

2), certiorari denied, 400 U.S. 828. Of course, the

court must caution the jury that the indictment is

not evidence. In this case, the court repeatedly so

instructed the jury (Tr. 3502-3503, 3534), stressing

that the indictment was merely a statement of the

charges, and that the case was to be decided solely

on the basis of the evidence presented in court.

Since this case involved numerous charges against

nine defendants, the trial court determined quite rea-

sonably that a copy of the indictment would help to

insure that the jury would understand which counts

were relevant to a particular defendant. This was

plainly no abuse of discretion.

13

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

WADE H. McCREE, JR.,

Solicitor General.

PHILLIP B. HEYMANN,

Assistant Attorney General.

JEROME M. FEIT,

DEBORAH WATSON,

Attorneys.

JULY 1978.

® iG. 6. GOVERNMENT pRintine orice; 1979 269829 71