Opposition — Burgio v. United States

No. 77-1807 :

Bethe Spree Court of the Hot Stat

aS '\_Octoser Term, 1978

a

‘tas : GEORGE BURGIO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

. THE UNITED STATES COURT OF APPEALS FOR

, THE SECOND CIRCUIT

nF ‘A

vi: BRIEF FOR THE UNITED STATES

ad b= IN OPPOSITION

Wave H. McCret, Jr..

Solicitor General,

ie

Bs Puitip B. HEYMANN,

+ Assistant Atiorney General,

Sipney M. GLAZER,

. , CAROLYN L. GAINES,

Attorneys,

Departmen: of Justice,

Washington, D.C. 20530.

INDEX

Page

DTT ‘Wincncscctscstcessessecececetce: ili teaaehsiicneseees |

nn cccncnscccccncccccconces |

ss cccccensesencsnccccccoocconces 2

a ssc scmecescnnonccecces 2

a crn accnssccccnconssceccccceoccesees 3

AD 10

CITATIONS

Cases:

Carrigan v. United States, 405 F. 2d 1197 ......... y

Dunn vy. United States, 307 F. 2d 883 ................ 7

Greenberg vy. United States, 280 F. 2d 472 ......... 7

Hall v. United States, 419 F. 2d $82 .................. 7

Mc Millian vy. United States, 363 F. 2d 165 ........ 7

Reagan v. United States, 157 U.S. 301 .......... 8. 9

United States v. Bear Killer, 534 F. 2d

1253, certiorari denied, 429 U.S. 846 ............... y

United States v. kFalley, 489 F. 2d 33° .........0000... 4

United States v. Hill, 470 F. 2d 361 .............. 8, 9

United States v. LaSorsa, 480 F. 2d 522,

certiorari denied, 414 U.S. 855 ..................00065. 7

United States v. Martin, 525 F. 2d 703,

certiorari denied, 423 U.S. 1035 ...........c000. 8

United States v. Preciado-Gomez, 529 F. 2d

935, certiorari denied, 425 U.S. 953 .........000... 8

i

Page

Cases —continued:

United States v. Saletko, 452 F. 2d 193,

certiorari denied, 405 U.S. 1040 .................. 8, 9

United States v. Santana, 485 F. 2d 365 ............. 7

United States v. Socony-Vacuum Oil Co.,

Sy CG I sie iiecccieth eatin tiniehineht ueleieaeiciieaiieeele 6

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

certiorari denied, 423 U.S. 823 ..................cee 4

United States v. Van Drunen, 501 F. 2d

1393, certiorari denied, 419 U.S. 1091 ............. S

United States v. Wiggins, 566 F. 2d 944,

certiorari denied, June 5, 1978,

SD :- PE incieishacineenndhatiniaiiiada tN S

United States ex rel. Clark v. Fike, 538

F. 2d 750, certiorari denied, 429

Is IE iri ilaril eitihs e a 6-7

United States ex rel. Macon v. Yeager, 476

F. 2d 613, certiorari denied, 414

Sans. UT Uinsidbilisclittechieetiecesibiplahneeemsaiteidiceidinaeanalagidnetiis 4-5

Constitution and statute:

United States Constitution, Sixth

CN i ae 4

Se ie CD Cicrinttetepnssicteintiennnctinreciniiinininiaininasens 2

In the Supreme Court of the United States

OctToper TERM, 1978

No. 77-1807

GEORGE BURGIO, 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

OPINION BELOW

The memorandum of the court of appeals (Pet. App.

A) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 22, 1978. The petition for a writ of certiorari was

filed on June 21, 1978. The jurisdiction of this Court is

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

QUESTIONS PRESENTED

1. Whether the trial court erred in permitting the

prosecutor to cross-examine petitioner concerning the

amount of his attorneys’ fees.

(1)

2. Whether the prosecutor's comments during sum-

mation constituted reversible error.

3. Whether the instruction to the jury on petitioner's

interest in the outcome of the case was proper.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of the New York, petitioner

was convicted of conspiring to distribute a variety of

controlled substances, in violation of 21 U.S.C. 846. He

was sentenced to five years’ imprisonment, to be followed

by a ten-year term of special parole. The court of appeals

affirmed without opinion (Pet. App. A).

1. The evidence at trial showed that between 1971 and

1975 petitioner and James Gerardi! were partners in a

drug distribution scheme involving the transportation of

narcotics from California to New York (1r. 69-70). Theii

siness included distributing marijuana, amphetamines.

= aie al. phencyclidine, and cocaine (11. 90-102).

Petitioner moved to California to run the west coast

operation, which involved locating sources of marijuana

and couriers to transport the drugs to New York. while

Gerardi directed the distribution of the drugs on the cast

coast (Tr. 84-88).

2. At trial petitioner testified in his own defense. The

thrust of his testimony was that although many of his

friends, including Gerardi, were dealing in narcotics. he

was not (Tr. 362-363, 428-429). He said that he and

Gerardi had a furniture business in New York and that -

they later invested in a jewelry store in- California (1r.

358. 364-368).

‘Prior to trial Gerardi had pleaded guilty to a conspiracy charge

essentially the same as that upon which petitioner was tied.

In his direct examination, petitioner testified that he

had limited funds during the period referred to in the

indictment. He said that he went to California with a

small amount of money (Tr. 345), that his money ran out

(Tr. 347), that he had to borrow money from his father

(Tr. 348, 368), and that the woman with whom he lived

collected social security payments (Tr. 357, 362). During

-cross-examination, however, the prosecutor elicited that

petitioner lived in a house in a wealthy suburb of Los

Angeles, that he owned two expensive foreign cars and a

19-foot motorboat, that he had taken a trip to Thailand

with his wife (Tr. 424-425), and that he had paid his

attorney $8,000 to $10,000 in fees (Tr. 422-423).

Counsel subsequently moved for a mistrial on the

ground that the question relating to the amount petitioner

had spent in legal fees constituted misconduct on the

prosecutor's part that prejudiced the defense (Tr. 436).

The district court, in denying the motion, concluded that

the evidence was relevant to petitioner's credibility and

showed that petitioner's life style was inconsistent with his

protestations of poverty on direct examination (Tr. 437-

439). The court nonetheless instructed the jury that there

was nothing unusual about the fees mentioned and that

the jury should not be prejudiced against petitioner be-

cause of the fee paid to his lawyer (Tr. 480).-

ARGUMENT

1. Petitioner contends (Pet. 7-10) that the government's

question about his attorneys’ fees denied him the right to

?The court instructed the jury as follows:

| want you to seriously pay attention to this. There ts nothing

whatsoever wrong with having a lawyer come from California to

defend this case. It is a perfectly natural thing under the

circumstances for a person whose residence is in California to

the effective assistance of counsel. Viewed in conteat,

however, the challenged question was proper cross-

eXamination.

The question about attorneys’ fees was part of the line

of inquiry designed to show that petitioner enjoyed an

expensive lifestyle and possessed substantial financial

resources. On direct examination, petitioner had conveyed

the impression that he lived very poorly during the period

of the conspiracy, borrowing money from his father and

living off his family and friends. He also suggested that

his financial situation had not changed significantly

between 1975 and the present (Tr. 345-412). Accordingly,

proof that petitioner was living far above the means

indicated by the sources of income to which he admitted

was of substantial probative value in impeaching his

credibility and suggesting an illicit source of substantial

added income. See United States v. Tramunti, 513 F. 2d

1087 (C.A. 2), certiorari denied, 423 U.S. $23; United

States v. Falley, 489 F. 2d 33 (C.A. 2). His attorneys’ fees,

like any other major expenditure, were a legitimate

subject of inquiry on this score. The district court

therefore acted well within its discretion in permitting the

question about attorneys’ fees.

Contrary to petitioner's contention, the inquiry into

attorneys’ fees did not constitute a penalty for the exercise

of his Sixth Amendment rights. Unlike United Siates ex

retain local attorneys to come here. This is a federal court.

It is a national court. There is nothing wrong with having

people investigate or in paying a fee.

A case like this requires a great deal of time, a lot happens

outside the courtroom that you're not privy to, and there is

nothing unusual! about the fees mentioned.

1 want to make it absolutely certain that there is no prejudice

whatsoever against this defendant because of his attorney who

strikes me as being very competent and highly ethical! attorney.

seen he is a California attorney or because he is being paid a

ee.

5

rel. Macon v. Yeager, 476 F. 2d 613 (C.A. 3), certiorari

denied, 414 U.S. 855, the prosecutor's question did not

invite the jury to conclude that petitioner was guilty

because he had retained an attorney. The relevance of the

question stemmed not from the fact that petitioner had

retained counsel, but from the fact that he had been able

to pay a substantial fee in spite of his claim on direct

examination that he enjoyed only a modest income.

Moreover, the trial court carefully instructed the jury that

there was nothing wrong or unusual about the fee

arrangement. The instruction cured any potential pre-

judice that may have stemmed from jury speculation

about the nature of the fee arrangement.

2. Petitioner argues (Pet. 10-12) that certain comments

made by the prosecutor during rebuttal were inflam-

matory and denied him a fair trial. The court of ap-

peals sharply criticized the prosecutor's remarks, but it

concluded that no reversible error was committed, in part

because the remarks were provoked by delense counse!’s

summation. There is no reason for this court to review

that determination.

In his summation, defense counsel suggested that the

government had tried to “poison the water” against

petitioner, had pressured witnesses to testify against

petitioner, and had prepared scripts tor its Witnesses in an

effort to secure a conviction (Tr. 483, 489, 491-493). In

response, the prosecutor made the following comment

(Tr. 513-514):

Now, Mr. Osierhoudt also implied to you, and |

emphasize the word implied, that Gerardi and

Caruolo were put up to their testimony by the

Government. This is the quote: “It is the truth, as

defined by the prosecution.” He used the word

pressure. He used the word script. He implied we

wrote out a script for Gerardi. He memorized it and

got up on the stand. He didn’t come right out and say

6

that the Government made them falsely implicate an

innocent person. He probably didn't want to offend

you because he knew you wouldn't fall for it because

it is offensive. But he implied it.

1 say that is ridiculous. | suggest again there is

absolutely no basis in the record for it. And it should

be rejected out of hand.

Don't you think there are enough guilty narcotics

dealers in the United States that we don't have to

drum up a case against an innocent person? Do you

think our salaries depend on whether we convict

George Burgio? Why should we do such a thing

unless he was guilty?

THE COURT: No.

MR. OSTERHOUDT: That is improper.

THE COURT: Sustained.

You decide the case on the evidence. The

Government is not on trial—

MR. APPLEBY: | suggest he put the Government

on trial.

THE COURT: If he did | don't want you to make

the argument in any event. Go to something els.

As the court of appeals recognized, the prosecutor's

argument was improper. Nonetheless, in the context of

defense counsel's attack on the integrity of the

prosecution, and in light of the court's curative instruction

and the strength of the evidence against petitioner, the

comment did not deprive petitioner of a fair trial. See

United States v. Socony-Vacuum Oil Co., 310 U.S. 150,

240-242: United States ex rel. Clark v. Fike, 538 F. 2d 750

a

(C.A. 7), certiorari denied, 429 U.S. 1064; United States \.

Santana, 485 F. 2d 365 (C.A. 2); United States v.

LaSorsa, 480 F. 2d 522 (C.A. 2), certiorari denied, 414

U.S. 855.3

3. Finally, petitioner contends (Pet. 12-15) that the

district court's standard instruction on the credibility of a

defendant improperly rendered his testimony suspect. The

district court gave the following instruction to the jury

(Tr. 526):

The defendant is competent as a witness. He

voluntarily took the stand, although he didn’t have

to. His testimony should not be disbelieved merely

because he is a defendant and you may, as in the case

of an accomplice, or informer, rely on so much ol it

as you believe. In weighing his testimony, however.

you may consider the fact that he has a vital interest

in the outcome of the trial and you may consider his

prior statements and explanations of them in

assessing his credibility.

‘The cases on which petitioner relies as establishing a conflict

among the circuits are distinguishable. In Mc Millian \. United States,

363 F. 2d 165, 169(C.A. 5). and Dunn y. United States, 307 &. 2d 883

(C.A. 5), the court criticized the practice of suggesting that there was

other evidence. not presented to the jury, that established the

defendant's guilt. In Hall v. United States, 419 F. 2d 582(C.A. 5). the

court reversed the defendant's conviction on the basis of a whole

range of improper comments during summation, tor which there was

neither provocation nor a curative instruction. And in Greenberg \.

United States, 280 F. 2d 472 (C.A. 1), the United States Attorney

similarly engaged in lengthy improper argument, without apparent

Provocation or correction by the court. and culminating in a long

statement of his personal belief in the guilt of the defendant and his

OWN expertise in judging such matters. In this case, by contrast. the

statement, albeit improper, was brief; it was quickly corrected by the

court, and it was directly responsive to a sharp attack by petitioner's

counsel.

This instruction properly informed the jury that petitioner

was a competent witness and should not be disbelieve:

merely because he was a defendant, as well as noting his

special interest in the outcome of the trial. It was within

the district court’s discretion to call the attention of the

jury to petitioner’s “vital interest,” since the fact that he

was the defendant created an interest greater than that of

any other witness and to that extent affected the question

of credibility. This Court approved such an instruction in

Reagan v. United States, 157 U.S. 301, 305-306, noting:

“The fact that he is a defendant does not condemn him as

unworthy of belief, but at the same time it creates an

interest greater than that of any other witness, and to that

extent affects the question of credibility. It is, therefore, a

matter properly to be suggested by the court to the jury.”

The majority of the courts that have recently addressed

the issue have approved the use of the challenged

instruction. See, e.g., United States v. Wiggins, 566 F. 2d

944 (C.A. 5), certiorari denied, June 5, 1978, No. 77-

6400; United States v. Preciado-Gomez, 529 F. 2d 935,

942 (C.A. 9), certiorari denied, 425 U.S. 953; Uniied

States v. Martin, 525 F. 2d 703, 706-707 (C.A. 2).

certiorari denied, 423 U.S. 1035; United States v. Hill. 470

F. 2d 361, 363-365 (C.A. D.C.).

Contrary to petitioner's suggestion (Pet. 9), the Seventh

Circuit has not held that the use of this instruction is

error. See United States v. Van Drunen, 501 F. 2d 1393.

1395-1396 (C.A. 7), certiorari denied, 419 U.S. 1091:

United States v. Saletko, 452 F. 2d 193, 197-198 (C.A. 7}, .

certiorari denied, 405 U.S. 1040. While it has observed

that including the defendant in the general instruction on

witness credibility, rather than mentioning |». separately,

eee

is “a sounder procedure,” the circuit has “continually

upheld instructions on this subject.” United Siates \.

Saletko, supra, 452 F. 2d 197-198 and n. 4. é

Only the Eighth Circuit has held that the instruction

challenged here is error, and that circuit has declined to

find the error prejudicial where “[{t}he [defendant's]

personal interest in the outcome of the trial proceedings

was obvious to the jurors, the instruction was not

inflammatory and it did not intimate * * * that the

[defendant] was a perjurer.” United States \. Bear Killer,

534 F. 2d 1253, 1260 (C.A. 8), certiorari denied, 429 U.S.

846.

Here the instruction simply pointed out the obvious

fact that petitioner had a significant interest in the

outcome of his trial, and it avoided doing so in an

“inflammatory” manner or suggesting that petitioner had

committed perjury. This charge was preceded by a caution

that the jury should not discount petitioner's testimony

just because he was the defendant, and by the instruction

that the jury “rely on so much of it as you believe” (Tr.

526). In addition, the judge gave appropriate instructions

concerning the presumption of innocence and the gov-

ernment’s burden of proof (Tr. 519-520). The result of

these instructions, taken as a whole, was that the jury was

instructed to subject petitioner's testimony to “the same

scrutiny as the testimony of other witnesses with a special

interest.” See United States v. Hill, supra, 470 F. 2d at

365. In the circumstances of this case, therefore, even the

Eighth Circuit presumably would not have found

reversible error, and the case therefore presents no

conflict requiring this Court to reconsider its earlier

approval of the challenged instruction in Reagan \v.

United States, supra.

‘The First Circuit in Carrigan v. United States, 405 F. 2d 1197.

1198, similarly encouraged trial courts to include the defendant in the

general credibility instruction as to all witnesses.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wave H. McCret, JR..

Solicitor General.

Puitip B. HEYMANN,

Assistant Attorney General.

SipNEY M. GLAZER,

CAROLYN L. GAINES,

Attorneys.

AuGusT 1978.

DOJ-1978-08

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