Opposition Brief — Clapps v. United States

Office - Supreme Court, U.S.

FILED

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No. 83-2060 NOV 16 1994

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STEVAS

Bes the Bupreate Court of the Buited Piites “—— —

(OCTOBER TERM, 1984

Bos A. CLAPPS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

SIDNEY M. GLAZER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

IQ jf

QUESTION PRESENTED

Whether the district court properly denied petitioner’s

request for a bench trial.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Dixon v. United States, 292 F.2d 768 .......... 4

Murphy v. Florida, 421 U.S. 794 ...........4.. 6

Patton v. Yount, No. 83-95

wid as hgh sep abe aah e os 6

Singer v. United States, 380 U.S.24 ......... 4,5

United States v. Abrams, 357 F.2d 539,

cert. dented, 364 U.S. 1001 ....cccccccccces 4,6

United States v. Ceja, 451 F.2d 399 ............ 4

United States v. Farries, 459 F.2d 1057,

cE 4

United States v. Houghton, 554 F.2d 1219,

a 4

United States v. Moon, 718 F.2d 1210,

cert. denied, No. 83-!242 (May 14, 1984) .... 4,6

United States v. Morlang, 531 F.2d

(oe ESPERO RAE er 4, 6

United States v. Wright, 491 F.2d 942,

COTE, MONE FUDD. BG? vo ccnsicsiicccvcces 4, 6

(IIT)

IV

Page

Constitution, statutes and rules:

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Se i Shk so 050 veb adobe ce devas aneene l

Pe ae IE van de Fasc cen svevecenwibeaeses l

Fed. R. Crim. P. :

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EP Pee Pee ree or 4,5

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In the Supreme Court of the Hnited States

- OCTOBER TERM, 1984

No. 83-2060

Bos A. CLAPPS, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-1 1a) is

reported at 732 F.2d 1148. The opinion of the district court

(Pet. App. 15a-32a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 19, 1984. A petition for rehearing was denied on May

10, 1984 (Pet. App. 12a). The petition for a writ of certiorari

was filed on June 14, 1984. 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 Middle District of Pennsylvania, petitioner was con-

victed on 13 counts of mail fraud, in violation of 18 U.S.C.

1341, and one count of conspiracy to commit mail fraud, in

(1)

2

violation of 18 U.S.C. 371. He was sentenced to concurrent

terms of two years’ imprisonment on eight of the counts and

sentenced to concurrent terms of probation for three years

on the remaining counts, the probation to run consecutively

to the imprisonment. He was also fined $1,000.!

1. The evidence is summarized in the opinions of the

courts below (Pet. App. 3a-4a, 16a-25a). It showed that

petitioner and co-defendant Robert T. Powell, together

with unindicted co-conspirators Robert Outeda and George

Stoss, fraudulently obtained and cast absentee ballots at a

May 15, 1979, primary election, a November 6, 1979, gen-

eral election, and a May 19, 1981, primary election in

Luzerne County, Pennsylvania. The evidence included tes-

timony from co-conspirators Outeda and Stoss, testimony

from the persons represented to be the voters, recorded

conversations between Stoss and petitioner, and expert

testimony that petitioner’s fingerprints were found on vot-

ing materials.

Prior to the May 15, 1979, primary election, Outeda

obtained signatures from residents of the Hoskins Rest

Home on applications for absentee ballots. He then gathered

the ballots when they arrived at the home and turned them

over to petitioner, a county political leader. Later, at peti-

tioner’s direction, Outeda obtained signatures from the re-

sidents on the voter declaration on the envelope in which

each completed absentee ballot is mailed. Outeda returned

the envelopes to petitioner, and then they were sent to the

Election Bureau. The residents only signed the declarations

and never saw the ballots. Pet. App. 18a-20a.

'Petitioner was acquitted by the jury on five other substantive counts

of mail fraud. Co-defendant Robert T. Powell was also convicted on

one count of conspiracy and five substantive counts of mail fraud. This

was their second trial. At the first trial, the court declared a mistrial as a

result of a deadlocked jury.

3

Before the November 6, 1979, general election, at peti-

tioner’s direction, Outeda again obtained signatures from

two residents of the rest home on applications and person-

ally signed three other applications, attesting that the appli-

cants were unable to sign because of illness or physical

disability. Co-defendant Powell notarized all five applica-

tions. The Election Bureau sent five absentee ballots

addressed to the five residents. They were returned with

signatures on the declarations on the envelopes. All five

residents testified that they never saw, marked, or mailed

the ballots and denied having the disabilities attested on the

applications. Pet. App. 20a-21la.

Before the May 19, 1981, primary election, at petitioner’s

direction, Stoss obtained applications from two residents of

a low-income housing development. After the ballots were

mailed, petitioner instructed Stoss to make sure these two

residents voted for the people on his party’s ticket. After

Stoss followed these directions, petitioner reviewed the two

marked ballots, which were later sent to the Election

Bureau. Both voters were in fact capable of getting to the

polls on Election Day and thus were ineligible to vote by

absentee ballot. Pet. App. 22a-23a.

2. Prior to trial, petitioner and his co-defendant filed a

motion to waive their right to a jury trial, pursuant to Fed.

R. Crim. P. 23. The government consented to the motion.

The district court denied the motion. In denying the

motion, the court observed that the issues in the case “were

not complex” and that the evidence to be presented was not

inappropriate for the jury to consider. The court observed

that the verdict would depend, in large part, on “[s]erious

credibility evaluations” and that resolution of the questions

of credibility “was best left to a jury of twelve.” Pet. App.

31a.

4

On appeal, the court of appeals determined that the

district court had not abused its discretion in denying the

motion for bench trial. Pet. App. 6a-7a.

ARGUMENT

Petitioner contends that the trial court erred in refusing

to grant him a bench trial after he and his co-defendant

waived a jury trial and the government consented to a

non-jury trial. He argues that, under Fed. R. Crim. P. 23(a),

prejudicial pretrial publicity, the complexity of the case,

and the admission of evidence of his prior conviction

required the court to approve his request for a non-jury

trial. The courts below properly rejected this contention.

1. The court’s refusal to approve the attempted waiver of

a jury trial was in full accord with Fed. R. Crim. P. 23(a),

which provides that “{c]lases required to be tried by jury

shall be so tried unless the defendant waives a jury trial in

writing with the approval of the court and the consent of the

government.” See Singer v. United States, 380 U.S. 24

(1965); United States v. Moon, 718 F.2d 1210, 1217-1219

(2d Cir. 1983), cert. denied, No. 83-1242 (May 14, 1984);

United States v. Houghton, 554 F.2d 1219, 1226 (Ist Cir.),

cert. denied, 434 U.S. 851 (1977); United States v. Mor-

lang, 531 F.2d 183, 186-188 (4th Cir. 1975); United States

v. Wright, 491 F.2d 942, 945 (6th Cir.), cert. denied, 419

U.S. 862 (1974); United States v. Farries, 459 F.2d 1057,

1061 (3d Cir. 1972), cert. denied, 410 U.S. 912 (1973);

United States v. Ceja, 451 F.2d 399 (Ist Cir. 1971); United

States v. Abrams, 357 F.2d 539, 549-550 (2d Cir.), cert.

denied, 384 U.S. 1001 (1966).

As then Judge Burger wrote for the court in Dixon v.

United States, 292 F.2d 768, 769 (D.C. Cir. 1961): “three

entities, the accused, the government and the court must

concur before any criminal trial may be held without a

jury.” A trial court therefore is under no obligation to serve

as factfinder in a case where, as here, it decides “that the

5

credibility resolution [is] best left to a jury of twelve” (Pet.

App. 3la).

Petitioner’s assertion (Pet. 7) that “the ‘approval’ of the

Court should be limited to a determination of whether there

is a knowing and intelligent waiver of jury trial by the

Defendant” is totally unsupported by precedent and would

render Rule 23(a)’s requirement of court approval super-

fluous. Since the court already, under the Rule. is under an

obligation to determine whether the defendant has waived

the jury trial right, there is no reason to construe the court's

independent power to approve or disapprove as limited to

making that determination. Rather, the motion for a bench

trial is entrusted to the sound discretion of the district court

and, as the court of appeals recognized (Pet. App. 6a-7a),

can he overturned by an appellate court only for an abuse of

that discretion. See Singer, 380 U.S. at 24 (emphasis added)

(waiver of the right to a jury trial is conditioned on “the

consent of the prosecuting attorney and the trial judge”; “if

either refuses to consent, the result is that the defendant is

subject to an impartial trial by jury”).

2. Petitioner does not expressly claim that his constitu-

tional due process rights were violated by the denial of his

motion for a bench trial. There is, therefore, no reason to

address that issue. In any event, there is no basis for any

claim of a constitutional violation here.

We begin with the proposition that “{a] defendant’s only

constitutional right concerning the method of trial is to an

impartial trial by jury.” Singer, 380 U.S. at 36. See also U.S.

Const. Art. III, § 2 (“{tJhe Trial of all Crimes, except in

Cases of Impeachment, shall be by Jury”). There is no

independent constitutional right to trial by the court. Here,

both courts below found that the jury was capable of rend-

ering a fair and impartial verdict. There is no reason for this

Court to engage in further review of that factbound issue.

6

The claim that the jury could not be impartial because of

public hostility was resolved definitively against petitioner

during the voir dire of prospective jurors. See United States

v. Moon, 718 F.2d at 1218; see also Patton v. Yount, No.

83-95 (June 26, 1984). A total of 12 veniremen for the panel

(15 Tr. 20-63) and six for the four alternate positions (15 Tr.

100-120) indicated some awareness of publicity about the

case. The court questioned them individually and excused

the 3 veniremen that petitioner and his co-defendant chal-

lenged for cause (15 Tr. 33, 63, 104). Petitioner thus has no

colorable claim of partiality because of pretrial publicity.

See Murphy v. Florida, 421 U.S. 794 (1975); United States

v. Morlang, 531 F.2d at 186-188.

Nor did the jurors’ impartiality become suspect because

two jurors began their discussion of the case prematurely

(after all the evidence had been received but prior to the

closing arguments). Upon the defendants’ motion for mis-

trial, the district court conducted a voir dire examination,

removed the two jurors who had been identified as speak-

ing, and substituted alternates (4 Tr. 27-85). This occur-

rence in no way indicated that the remaining jurors were not

able to render an impartial verdict based upon the evidence.

The contention that the case was too complex to be tried

by a jury is an argument that has been consistently rejected

by the courts of appeals, in circumstances far more complex

than these. See, e.g., United States v. Wright, 491 F.2d at

945; United States v. Abrams, 357 F.2d at 549. Whether

petitioner fraudulently obtained and used absentee ballots

and caused the mail to be used in mailing certain election

material raises questions of a sort jurors frequently decide

without difficulty. And, as the court below noted (Pet. App.

7a), the issues were simplified at trial by the parties’ stipula-

tion regarding the Pennsylvania Election Code.

7

The fact of petitioner’s prior state conviction, which was

brought out by petitioner’s attorney during his direct exam-

ination (3 Tr. 157-159), also did not make a jury trial unfair.

There is no reason to believe that the jury in this case was

not able to follow the court’s instruction (4 Tr. 99) and use

this evidence, as juries commonly do, solely to determine

credibility. See Fed. R. Evid. 609.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E.LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

SIDNET M. GLAZER

Attorney

NOVEMBER 1984

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