Opposition — Grissom v. United States

No. 79-29]

NOV § 1979

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Jn the Supreme Court of the “Hnited States

OCTOBER TERM, 1979

JAMES THOMAS GRISSOM, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WaAbDE H. McCCREE, JR.

Solicitor General

Puitir B. HEYMANN

Assistant Attorney General

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-291]

JAMES THOMAS GRISSOM, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT |

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (Pet. App.

21-22) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 20, 1979. A petition for rehearing was denied on

July 23, 1979 (Pet. App. 23-24). The petition for a writ of

certiorari was filed on August 22, 1979. The jurisdiction

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

QUESTIONS PRESENTED

|. Whether the district court committed plain error by

permitting a narcotics agent to testify as to his opinion

about the meaning of certain figures written on the back

of petitioner’s business card.

(1)

2. Whether an error in the citation of a statute in the

indictment requires that petitioner's conviction be re-

versed.

3. Whether the court should have ordered the govern-

ment to provide petitioner with a list of its witnesses and

should have ordered the government's chiet witness to

submit to an interview by defense counsel.

4. Whether the court committed reversible error in

denying a motion to sever the two counts of the

indictment.

5. Whether the court abused its discretion in sentencing

petitioner.

STATEMENT

Following a jury trial in the United States District

Count for the Eastern District of Tennessee, petitioner

was convicted of distributing cocaine and aiding and

abetting its distribution, in violation of 2] U.S.C.

841(ay(l) and 18 U.S.C. 2.' He was sentenced to seven

years’ imprisonment, to be followed by a three-year

- special parole term.

|. The evidence at trial showed that on December 2,

1977, Jerry Owensby, an undercover DEA agent, met

with petitioner at petitioner's place of business in

Knoxville, Tennessee (Tr. 8-11). Owensby told petitioner

that he was interested in purchasing an ounce of cocaine

that day and that, if the quality of the cocaine were good,

he would return within a week or 10 days for a larger

amount. Petitioner replied that there would be no

'The indictment charged three others as defendants along with

petitioner (C.A. App. 5A), but Only one of those charged was tried

with petitioner. The charges against that co-defendant were dismissed

at trial on the government's motion (Tr. |12-I 13).

Lg

problem in supplying large amounts of cocaine. since he

received up to three shipments of cocaine per week (Tr.

II). Petitioner then told Agent Owensby to go to

petitioner's apartment and to wait there (Tr. 12). Later

that day, after a telephone conversation with petitioner,

Agent Owensby went to James Hutchinson's: apartment

in the same building, where five grams of cocaine were

delivered to him by Hutchinson in exchange for $400 (Tr.

13-15).

On December 14, 1977, Agent Owensby met with

petitioner at the latter's apartment. Petitioner asked

Owensby, “[h]ow many do you want,” which Owensby

interpreted to refer to ounces of cocaine. Owensby

replied, “[w]ell, if the price is right | will have one.”

Petitioner said that the price was $2100, and Owensby

agreed to buy one ounce (Tr. 17-18). The two then drove

to another apartment. complex, where they met Hutchin-

son who gave Owensby a bag containing approximately

29 grams of cocaine (Tr. 19-21). Owensby then told

petitioner and Hutchinson that, if the cocaine were of

good quality, he would like to purchase larger amounts

in the future and asked what the prices would be (Tr. 21).

Petitioner then removed a business card from his wallet

and wrote some figures on the card. Similarly, Hutchin-

son wrote some figures on a different card (Tr. 21).

Owensby testified that the figures referred to the prices for

various quantities of cocaine (Tr. 22-23). Owensby then

paid petitioner $2100 for the cccaine (Tr. 24).

The jury found petitioner not guilty on count | (the

December 2 sale) and guilty on count 2 (the December 14

sale).

"Hutchinson was charged in the same indictment as petitioner but

pled guilty before trial and testified for the government (Tr. 78).

The court of appeals affirmed by judgment order (Pet.

App. 21-22). It held that the district court had not abused

its discretion in refusing to order the government to turn

Over a list of its witnesses in advance of trial and in

declining to grant a severance of the two counts. The

court also held that the sentence imposed on petitioner

Was Well within the Statutory maximum and could not be

deemed an abuse of discretion.

ARGUMENT

1. Petitioner contends (Pet. 5-7) that the district court

committed plain error by allowing Agent Owensby to

testify about the meaning of the figures petitioner wrote

on the back of a business card in response to Owensby’s

question about the price of larger quantities of cocaine.

This point was not raised in the court of appeals, and it

should not be considered here for the first time. See

United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). In

any event, the contention is without merit. Because

petitioner wrote the figures in Owensby’s presence and in

response to Owensby’s question about the prices that

petitioner would charge for different amounts of cocaine

(see Tr. 21), it was entirely proper for Owensby to testify

that he understood the figures to be a price list for varying

quantities of cocaine. This was not an expert opinion: it

was simply an opinion or inference that Was “rationally

based on the perception of the witness.” Fed. R. Evid.

701. It was therefore within the discretion of the court to

admit Owensby’s testimony. See United States V.

Mandujano, 499 F. 2d 370 (Sth Cir. 1974), cert. denied,

419 U.S. 1114 (1975),

Moreover, as petitioner concedes (Pet. 6), no objection

was made to the question at trial. Even assuming that the

testimony should not have been admitted, its admission is

clearly not a “plain error” that seriously affects “substan-

tial rights” of the accused. See Fed. R. Crim. P. 52(b). In

light of Owensby’s first-hand account of the cocaine

transaction, the testimony as to the figures could have had

little effect on the verdict. Admission of that testimony is

certainly not a ground for reversal in the absence of an

objection at trial.

2. Petitioner next argues (Pet. 7-10) that the indictment

must be dismissed because it miscited the narcotics

distribution statute. The indictment charged that

petitioner violated “18 U.S.C. 841(a)(1),” while it should

have been charged that he violated “21 U.S.C. 841(a)(1).”

This point also was not raised in the district court or in

the court of appeals and therefore should not be

considered here. In any event, it is frivolous.

Petitioner makes no claim that he was misled by the

technical citation error, nor could he. He was properly

advised as to the nature of the charges against him. Ihe

indictment alleged each of the elements of the offense of

unlawful distribution of a controlled substance that is

prohibited by 21 U.S.C. 841(a)(1). In addition, the

indictment identified the substance, the amount dis-

tributed on both occasions, the names of the persons

involved in the distributions, and the precise dates that

the two distributions occurred (C.A. App. SA). Rule

7(c3) of the Federal Rules of Criminal Procedure

specifically provides that an error in the citation of a

Statute “shall not be ground for dismissal of the

indictment or information or for reversal of a conviction

if the error or omission did not mislead the defendant to

‘Petitioner's reliance (Pet. 6-7) on Kotteakos v. United States, 328

U.S. 750 (1946), is misplaced. Kotteakos discusses the standard for

harmless error (see Fed. R. Crim. P. 52(a)), not the standard for plain

error that is applicable when no objection has been made at trial.

his prejudice.” See Steinert v. U.S. District Court, 543

F.2d 69 (9th Cir. 1976): United States v. Garner, 529 F.2d

962, 966 (6th Cir.), cert. denied. 426 U.S. 922 (1976).

3. Petitioner next contends (Pet. 10-13) that the district

court erred when it declined to provide him with a list of

Witnesses prior to trial, and when it refused to order

Agent Owensby to submit to an interview by defense

counsel.

It is firmly established that a defendant is not entitled

to a list of the government's witnesses except in a capital

case. Cf. 18 U.S.C. 3432. See United States v. Little.

562 F.2d 578, 581 (8th Cir. 1977); United States vy.

Mitchell, 540 F.2d 1163 (3d Cir. 1976), cert. denied, 429

U.S. 1099 (1977); United States v. Jordan, 399 F.2d 610.

615 (2d Cir.), cert. denied, 393 U.S. 1005 (1968).

Nor is there any authority for petitioner's proposition

that the court erred by refusing to order Agent Owensby

to submit to an interview with defense counsel. In

Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966).

relied upon by petitioner, the court disapproved the

_ prosecutor's instructions to government witnesses that

they should not talk with defense counsel unless the

prosecutor was present. But the courts have uniformly

held that if a witness does not wish to submit to an

interview with one side or another. his wishes must be

respected. See United States v. Matlock, 491 F.2d 504,

506 (6th Cir.), cert. denied, 419 U.S. 864 (1974); United

States v. White, 454 F.2d 435. 438-439 (7th Cir. 1971),

cert. denied, 406 U.S. 962 (1972): United States v.

Dryden, 423 F.2d 1175, 1177 (Sth Cir.), cert. denied, 398

U.S. 950 (1970); Byrnes v. United States, 327 F.2d 825,

832-833 (9th Cir.), cert. denied, 377 U.S. 970 (1964). And

it has been expressly held that it is not error for the court

to decline to order a witness to talk to defense counsel.

See United States v. Rice, 550 +.2d 1364. 1374 (Sth Cir.

1977); United States v. Mirenda, 443 F.2d 1351. 1356 (9th

Cir.), cert. denied, 404 U.S. 966 (1971). :

4. Petitioner further contends (Pet. 13-17) that the two

counts should have been severed for trial. This claim is

without merit. The two charges were Closely related, as

was demonstrated by the government's evidence at trial.4

Both counts were “of the same or similar character” and

also were based on two “transactions connected together.”

Fed. R. Crim. P. 8(a). Accordingly, joinder of the two

offenses was indisputably proper. See, e.g., United States

v. Sanders, 463 F.2d 1086 (8th Cir. 1972): United States v.

Kellerman, 432 F.2d 371, 374 (10th Cir. 1970).

Petitioner has not established that he was prejudiced by

the failure to grant a severance. He contends that the

joinder made his defense more difficult because it forced

him to take the stand and to adopt somewhat inconsistent

delenses with respect to the two charges.> However, the

fact that the joinder may have made petitioner's defense

more difficult does not mean that it did so unfairly.

Putting a defendant in a position that makes it awkward

*Agent Owensby purchased the first portion of cocaine as a sample;

he and the defendants understood that that sale would lead to further

sales in the future. In fact, Owensby specifically indicated that, if the

sample were satisfactory, he would return for a larger amount within

approximately a week to 10 days (Tr. 11). Twelve days after the first

sale, Owensby returned and made the second purchase. That

purchase was a direct result of the first purchase.

‘Petitioner also notes (Pet. 17) that the joinder permitted the jury

to hear evidence of two crimes. This factor, of course, is present in

any case where two offenses are joined, and it cannot require a

severance.

for him to adopt inconsistent defenses is hardly unfair.°

Similarly, just because the joinder of charges may have

reduced the tactical advantage to petitioner of remaining

silent at trial does not mean that the joinder violated his

Fifth Amendment right against compulsory - self-

incrimination.’? A decision whether to grant a severance is

committed to the discretion of the trial court, and the

denial here was a proper exercise olf that discretion. See

Opper v. United States, 348 U.S. 84, 95 (1954).

“In any event, petitioner's defenses to the two charges were not

necessarily inconsistent. His defense to the first count was that he was

not present at and did not participate in the sale; his defense to the

second count was that he was present during, but did not participate

in, the sale (Pet. 16). With respect to both sales, he suggested that it

was Hutchinson who was the guilty party.

Petitioner relies on Cross v. United States, 335 F.2d 987 (D.C. Cir.

1964), in support of his claim that he should have been granted a

severance because he wished to testify as to count one but not as to

count two. Cross, however, was expressly limited in Baker v. United

States, 401 F.2d 958, 976-977 (D.C. Cir. 1968), cert. denied, 400 U.S.

965 (1970). There, the court held that “no need for a severance exists

until the defendant makes a convincing showing that he has both

important testimony to give concerning one count and strong need to

refrain from testifying on the other.” /d. at 977 (footnote omitted).

Only if the defendant makes such a showing can the court properly

' “weigh the considerations of ‘economy and expedition in judicial

administration’ against the defendant's interest in having a free choice

with respect to testifying.” /bid. (footnote omitted). Other courts of

appeals have similarly rejected the broad implications of Cross. See

United States v. Jamar, 561 F. 2d 1103, 1108 n.9 (4th Cir. 1977);

United States v. Jardan, 552 F. 2d 216, 220 (8th Cir.), cert. denied,

433 U.S. 912 (1977); United States v. Weber, 437 F.2d 327, 334-335

(3d Cir. 1970), cert. denied, 402 U.S. 932 (1971). In this case,

petitioner failed to make any such showing. In his motion for a

severance (see C.A. App. 17A), he alleged only that there appeared to

be “a very real possibility” that he would want to testify as to count

one but not as to count two. He failed to indicate what “important

testimony” he could give with respect to count one cr why he had a

“strong need” to refrain from testifying as to count two. Accordingly,

the district court properly denied petitioner’s motion for a severance.

5. Finally, petitioner argues (Pet. 17-19) that he was

given an unduly harsh sentence compared to Hutchinson,

who pleaded guilty and received only a_ three-year

sentence, all but six months of which was suspended.

The terms of Hutchinson’s sentence were set under a

plea agreement that was approved by the court. Because

of Hutchinson’s psychiatric problems, he was placed on

probation following service of a six-month jail term, on

the condition that he commit himself to a_ psychiatric

hospital or make arrangements for continued psychiatric

care (see Tr. 102-105). By accepting the terms of the plea

bargain, including the agreed-upon sentence for Hutchin-

son, the court did not in any way bind itself with respect

to the sentence that it could properly give petitioner.

As petitioner’s counsel conceded at the sentencing

hearing (Tr. 148), petitioner had two prior federal

convictions for which he had served a term of imprison-

ment, and he had been prosecuted and fined on criminal

charges in Canada. In light of petitioner's prior record

and the evidence that he was involved in a major drug

distribution operation, his sentence, which was less than

half the statutory maximum, was clearly within the

district court’s discretion to impose. See Dorszynski v.

United States, 418 U.S. 424, 431 (1974). |

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WaDE H. McCRrEE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

NOVEMBER 1979

DOJ-1979-11

AEE OT a RTT TE TES Or eT oS ee