# Opposition — Roche v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 828

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1069%3A2. Public record. Not legal advice.