Opposition — Pierce v. United States

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FIL!

OCT Si ist

In the Supreme Court of the Hnited States

OcTOBER TERM, 1981

No. 80-2203

CLIFFORD Y. PIERCE, PETITIONER

A

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

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

MERVYN HAMBURG

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether denial of a motion for new trial, which was

based upon a juror’s testimony that comments suggesting

bias were made by another juror during deliberations, was

an abuse of discretion.

TABLE OF CONTENTS

Page

Opinion BEIOW .nccccccccvcccvccccsesecsesseseuce l

FOSMGIIOD ccc cccccccccucusucccccscocnestueceeus l

SUMOTNO cc ccccccccsectcecvccccecessdseuseueees l

ATQBTAOM co cccccccccccdseccdeccceccecencenesesess 4

COMCIMMON cccccccccscccsccccccccoessssecesseens 7

TABLE OF AUTHORITIES

Cases:

Clark v. United States, 289 U.S. 1 ..... eee eee 6

Gault v. Poor Sisters of St. Frances,

S19 F. SA SOe cccccccccesccttsccesevecsoans 5

Government of Virgin Islands v. Gereau,

523 F. 2d 140, cert. denied, 424 U.S.917 .... 5,6

Johnson v. Hunter, 144 F.2d 565 .........445- 5

McDonald v. Pless, 238 U.S. 264 ........045. 5,6

Photostat Corp. v. Ball, 338 F.2d 783 ......... 7

Rakes v. United States, 169 F. 2d 739,

cert. denied, 335 U.S. 826 .........cccecccees 5

Ryan v. United States, 191 F. 2d 779,

cert. denied, 342 U.S.928 .........cccececees 7

Smith v. Brewer, 444 F. Supp. 482, aff'd,

577 F. 2d 466, cert. denied, 439 U.S. 967 ...... 6

United States v. Bynum, 634 F. 2d 768 ......... 6

United States v. Chereton, 309 F. 2d 197,

cert. denied, 372 U.S. 956 wcciccccccccccvesen 5

IV

Page

Cases—(Continued):

United States v. Dioguardi,492 F.2d 70 ....... 5

United States v. Furlong, 194 F. 2d 1,

cert. denied, 343 U.S. 950 ....cccccccecvvvees 5

United States v. Green, 523 F. 2d 229,

cert. denied, 423 U.S. 1074 .....cceececvvvees 5

United States v. Kafes, 214 F. 2d 887,

oort, Gomee, DGS UB. GST os vdscssceecevecsss 5

United States v. Marques, 600 F. 2d 742,

oort. Gente, 444 U.S. OSE ccccccccecccccccces 5

United States v. Schroeder, 433 F. 2d 846,

cert. denied, 400 U.S. 1024 .... ccc cece eecvees 5

Statutes and rule:

FS Wes GED don ccccnccedosceveneeceeses 2

BE TL UUEED Ncccecctcccctevsasevesuaes l

Be Cree UE 0.0.0 00 00.0000 nd 6h0nes sakeeeeeen l

Be Me WI he ene occas eassesvocdeccees enna |

, 2s. § Brrr rr 3, 4, 5,6

Miscellaneous:

3 Weinstein’s Evidence (1977) oo... cc cee e cues 5,6

3

Much of that shipment was discovered in Stein’s apartment

by officers who arrested him (A. 494-497, 499, 501).

2. The jury began its deliberation on a Friday evening.

After approximately two hours, the court postponed

further deliberations. On the following Monday, the jury

resumed deliberation at 9:15 a.m., and returned a verdict at

4:55 p.m. (A. 558-565). Each juror, including Judith Hen-

drix, was polled. When asked by the court, “{I]s this your

individual and considered and deliberate verdict?” Hendrix

replied affirmatively (A. 565).

A few days later Hendrix telephoned the trial judge and

claimed that certain improprieties had occurred during jury

deliberations. The court notified the parties; immediately

prior to sentencing they met with Hendrix in chambers to

deal with her allegations. At the outset of the hearing, the

judge noted that although Hendrix's testimony was proba-

bly inadmissible under Fed. R. Evid. 606(b), he would

permit a record of her contentions to be made (A. 566-567;

Pet. App. 9a).

Apparently a lone holdout for acquittal during much of

the deliberations, Hendrix recounted a number of argu-

ments with the other jurors. During the deliberations Hen-

drix told the other jurors that she believed petitioner's claim

that Stein had used aliases in Louisville to avoid problems

that might arise because he was Jewish. According to Hen-

drix, the foreman responded that the defense attorney also

was Jewish, and that “they” could convince anybody of

anything, just as the lawyer had convinced Hendrix (Pet.

App. 20a-21a). Hendrix indicated that she was uncertain of

the meaning of that comment, but “felt that he meant it

personally” (ibid.). She added that the other jurors seemed

to agree with everything said by the foreman (Pet. App.

21a). Hendrix also stated that while she had not suffered

any physical force (Pet. App. 17a), her eventual decision to

4

support the guilty verdict may have been prompted by her

head cold, coupled with the cigarette smoke and warm

temperature in the jury room (Pet. App. 23a-24a).

Following this testimony and a discussion with counsel,

the court remarked that Hendrix's testimony provided no

basis for a new trial and reiterated that the testimony had

been adduced for the benefit of appellate review (Pet. App.

25a-32a). Noting that the remark purportedly uttered by the

foreman could be construed as an expression of admiration,

the court also disagreed with defense counsel's argument

that the remark conclusively demonstrated religious preju-

dice on the part of the foreman (Pet. App. 29a). The court of

appeals affirmed the convictions (Pet. App. la-3a).

ARGUMENT

Fed. R. Evid. 606(b) provides:

Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any matter or

statement occurring during the course of the jury's

deliberations or to the effect of anything upon his or

any other juror’s mind or emotions as influencing him

to assent to or dissent from the verdict or indictment or

concerning his mental processes in connection there-

with, except that a juror may testify on the question

whether extraneous prejudicial information was im-

properly brought to the jury's attention or whether any

outside influence was improperly brought to bear upon

any juror. Nor may his affidavit or evidence of any

statement by him concerning a matter about which he

would be precluded from testifying be received for

these purposes.

The rule is a codification of well-settled case law; its pur-

poses are to discourage harassment of jurors by a losing

party, to encourage free and open discussion during delib-

erations, to reduce incentives for jury tampering, to pro-

mote the finality of verdicts, and to maintain the viability of

In the Supreme Court of the United States

OcTOBER TERM, 1981

No. 80-2203

CLIFFORD Y. PIERCE, 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.

la-3a) is noted at 652 F. 2d 60.

JURISDICTION

The judgment of the court of appeals was entered on

March 9, 1981. A petition for rehearing was denied on April

30, 1981. The jurisdiction of this Court is invoked under 28

U.S.C, 1254(1).

STATEMENT

After a jury trial in the United States District Court for

the Western District of Kentucky, petitioner was convicted

of using a wire communication to facilitate the commission

of a felony (counts 1-7), possession of cocaine with intent to

distribute it (counts 10-12), and distribution of cocaine toa

person less than 21 years of age (counts 13-14), in violation

of 21 U.S.C. 843(b), 841(a)(1), and 845. He was sentenced to

2

imprisonment for concurrent terms of four years on counts

1-7, and 15 years on counts 10-14, subject to the immediate

parole provisions of 18 U.S.C. 4205(b). In addition, the

court imposed concurrent six-year special parole terms on

counts 10-14.

1. The evidence at trial showed that petitioner was

involved with Alan Stein in a business venture involving the

purchase of gold jewelry for resale by Stein in Louisville,

Kentucky (A. 454-455).! When Stein traveled to Louisville

with the jewelry, he frequently carried cocaine as well. Stein

became a distributor of cocaine in the Louisville area; some

of the individuals who shared or distributed Stein’s cocaine

were teenage girls (A. 261-266, 270-278). After Stein lost his

cocaine source, petitioner helped him acquire a new one.

In mid-1977, Stein moved from Miami Beach, Florida, to

Louisville. Thereafter, petitioner delivered cocaine to Stein

personally or by way of an airplane express cargo delivery

service (A. 482-495). When sending the cocaine by air,

petitioner used a special envelope provided by a computer

tax service company. The packages sent to Stein ostensibly

contained documents; they actually contained manila enve-

lopes within which cocaine had been hidden (A. 483). Each

package was addressed to one of the aliases used by Stein

and contained between one-quarter ounce and two ounces

of cocaine (A. 487). Stein sent payments for the cocaine to

petitioner by wire (A. 489-490).

The final cocaine shipments to Stein occurred early in

May, 1978. Anticipating increased demand for the drugs

during the weekend of the Kentucky Derby, Stein sent

petitioner money orders amounting to $1,600, enough for

an ounce of cocaine. On May 6, 1978, petitioner sent Steina

package of cocaine via airplane express delivery service.

“A.” refers to the two-volume Appendix filed in the court of appeals.

5

the jury as a decision-making body. See McDonald v.

Pless, 238 U.S. 264, 267-268 (1915); United States v.

Marques, 600 F. 2d 742 (9th Cir.), cert. denied, 444 U.S. 858

(1979); United States v. Green, 523 F. 2d 229 (2d Cir. 1975),

cert. denied, 423 U.S. 1074 (1976); Government of Virgin

Islands v. Gereau, 523 F. 2d 140 (3d Cir. 1975), cert.

denied, 424 U.S. 917 (1976); United States v. Schroeder,

433 F. 2d 846 (8th Cir. 1970), cert. denied, 400 U.S. 1024

(1971); United States v. Chereton, 309 F. 2d 197 (6th Cir.

1962), cert. denied, 372 U.S. 936 (1963); United States v.

Furlong, 194 F. 2d 1 (7th Cir.), cert. denied, 343 U.S. 950

(1952); Rakes v. United States, 169 F. 2d 739 (4th Cir.),

cert. denied, 335 U.S. 826 (1948); Johnson v. Hunter, 144

F. 2d 565 (10th Cir. 1944). There are conflicting considera-

tions, but they do not outweigh the public policies that

support the rule prohibiting jurors from impeaching their

own verdicts by disclosures of events occurring during

deliberations. McDonald v. Pless, supra; see also United

States v. Dioguardi, 492 F. 2d 70, 79-80 (2d Cir. 1974);

Gault v. Poor Sisters of St. Frances, 375 F. 2d 539 (6th Cir.

1967); United States v. Kafes, 214 F. 2d 887 (3d Cir.), cert.

denied, 348 U.S. 887 (1954).

1. Recognizing the applicability of Rule 606(b), peti-

tioner argues that Hendrix's testimony is within the excep-

tion that permits a juror to reveal the presence of “extrane-

ous prejudicial information.” The offhand comment alleged

to have been uttered by the jury foreman regarding his

impression of how defense counsel’s supposed ethnic back-

ground enhanced his persuasiveness is not within the excep-

tion mentioned in Rule 606(b). The “extraneous informa-

tion” exception includes evidence of the jury’s con-

sideration of evidence not admitted in court, such as

information gained by visits by a juror to places mentioned

in the testimony, or outside publicity. See generally 3 Wein-

stein’s Evidence 606-31 to 606-34 (1977); see also id. at

6

606-13 to 606-16. It does not permit consideration of a

juror’s post-verdict report of speculation uttered by another

juror during deliberations. See, e.g., Government of Virgin

Islands v. Gereau, supra, 523 F. 2d at 149-151; Smith v.

Brewer, 444 F. Supp. 482 (S.D. lowa), aff'd, 577 F. 2d 466

(8th Cir.), cert. denied, 439 U.S. 967 (1978); 3 Weinstein’s

Evidence, supra, at 606-35 to 606-36.?

2. Petitioner also claims that the testimony of juror

Hendrix indicated religious bias on the part of the jury

foreman, and, therefore, was admissible to support his

claim that due process was violated by the foreman’s con-

cealment of his bigotry during the voir dire. We do not

dispute petitioner's right to an unbiased jury. Nevertheless,

an isolated remark by a juror during the give and take of

heated discussion over guilt or innocence is not evidence of

bias sufficient to justify discarding the secrecy of jury delib-

erations. Cf. Clark v. United States, 289 U.S. 1, 15 (1933).

Fed. R. Evid. 606(b) strikes a balance between the interests

furthered by litigating claims of juror bias based upon such

utterances and the public policies implicated by the rule

barring disclosure of statements of jurors during delibera-

tions. See also McDonald v. Pless, supra, 238 U.S. at 268.3

Petitioner's reliance upon United States v. Bynum, 634

F. 2d 768 (4th Cir. 1980), is misplaced. In Bynum the court

discovered, without inquiry concerning the jury’s delibera-

tions, that a juror had failed to disclose the criminal record

2Defense counsel's religion or ethnic origin was never discussed at

trial. Since there is no reason to believe that the jurors, residents of

Kentucky, knew defense counsel, who is from Miami, Florida, we

assume—as does petitioner—that the basis for the comment allegedly

made by the jury foreman was his own surmise.

‘The impropriety of petitioner's reliance upon the foreman’s remark

to support the claim of bias is underscored by the view of the district

court judge, who was not convinced that the remark reflected bigotry.

7

of a close relative. The Fourth Circuit's holding that the

juror’s deliberate concealment deprived the defendant of his

right to a fair trial therefore is not inconsistent with the

holding in this case.*

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

MERVYN HAMBURG

Attorney

OcTOBER 1981

Further, petitioner does not suggest that any juror assumed that he was

Jewish. Any bias reflected in the alleged remark presumably affected

the foreman’s evaluation of Stein's testimony as well as the evaluation

of defense counsel's arguments. Finally, it is impossible to estimate the

significance of the remark, and it is precisely this sort of speculation that

Rule 606(b) was intended to preclude.

‘Similarly, neither Photostat Corp. v. Ball, 338 F. 2d 783 (10th Cir.

1964) nor Ryan v. United States, 191 F.2d 779(D.C. Cir. 1951), cert.

denied, 342 U.S. 928 (1952), involved any inquiry concerning the jury's

deliberations.

DOJ-1981-10