Petitioners Reply Brief — Nabors v. United States

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

DEWEY T. NABORS, JR.,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

REPLY OF PETITIONER

DEWEY T. NABORS, JR.

Of Counsel: GORDON DEAN Booru, JR.

Marc K. RITZMANN Counsel of Record

PAUL JAMES CONNELL 3100 Equitable Building

KILPATRICK & Copy 100 Peachtree Street

$100 Equitable Building Atlanta, Georgia 30043

100 Peachtree Street (404) 572-6500

Atlanta, Georgia 30043 Counsel for Petitioner

(404) 572-6500

en es a A ER SEE SES

WILSON - Eres Printine Co., Inc. - 789-0096 - WasHincToNn, D.C. 20001

TABLE OF CONTENTS

py SF Bc Me Nips ty) - nnn

PIE TIET secots deinscesteresseccesein~~~<omnenmansihieonnanbninaainiegboadtaiads

Admission of Evidence of Petitioner’s Pre-Arrest

ee

Admission of Evidence of Petitioner’s Alleged

BPI PUNE NIIOND «.sccnisicco nhsbanevinésiaeigtivontcceheipeaieciinndania baseman

Denial of Petitioner’s Motion to Compel the Gov-

ernment to Affirm or Deny the Use of Illegal Elec-

I: TCI ice cssicrsdcciesennerennnsonisicebomsehiinesiadieadainiss

SIT. ceinecicecnesdincensnestnanoontaianpadtinhiibnbiisnnisantinsidinadets

ii

TABLE OF AUTHORITIES

Cases: Page

Fletcher v. Weir, 445 U.S. 603 (1982) ........00200...... 2

Garrity v. State of New Jersey, 385 U.S. 493

I sisi ack visccanscnsninecinibaain piece cenitaadsts aaa 4

Griffin v. California, 380 U.S. 609 (1976) ............... 4

In re Grand Jury Proceedings, 664 F.2d 423 (5th

Cir. 1981), cert. denied, 455 U.S. 1000 (1982)... 7,9

In re Grand Jury Proceedings, 643 F.2d 626 (5th

tS RUN as SU Od NL 10

In re Grusse, 402 F. Supp. 1232 (D. Conn.), aff'd,

— Be fb Gs | eRe re 7

In re Winship, 397 U.S. 358 (1970) ......................... 7

Jenkins v. Anderson, 447 U.S. 231 (1980) ............. 2,3

Lefkowitz v. Turley, 414 U.S. 70 (1978) ................ 4

People v. Grieco, 94 Misc.2d 1043, 406 N.Y.S.2d

426, aff'd, 98 Misc.2d 310, 418 N.Y.S.2d 821

| RE eG Fh te Se ee 7

Raffel v. United States, 271 U.S. 494 (1926) .......... 2,3

Screws v. United States, 325 U%S. 91 (1945) .......... 7

United States v. Beechum, 582 F.2d 898 (5th Cir.

1978), cert. denied, 440 U.S. 920 (1979) ........... 6

United States v. Buck, 548 F.2d 871 (9th Cir.),

cert. denied, 434 U.S. 890 (1977) ...................-..-. 9

United States v. Coades, 549 F.2d 1303 (9th Cir.

| f Spee EMT ARERR SOT Ea a ONES 6

United States v. Giese, 597 F.2d 1170 (9th Cir.),

cert. denied, 444 U.S. 979 (1979) ........................ 4

United States v. Hearst, 412 F. Supp. 863 (N.D.

a SR Ee are a ERS I 9

United States v. Lange, 422 F. Supp. 400 (E.D.

eT eile UII iccnssimsiciominrtliicpielicincltbaicheiedacede ik cect ttelaitaida dink 7

United States v. Powell, 587 F.2d 448 (9th Cir.

eR REL R nec Ee SEY None GO 6

United States v. Roberts, 619 F.2d 379 (5th Cir.

MII -ccsocinnavscsannivpsetigsondossiaissiaiahanaca eens gaia earn ioaes 5

United States v. See, 505 F.2d 845, 856 (9th Cir.

1974), cert. denied, 420 U.S. 992 (1975) ............. 8

Statutes:

FA Rh | ee eee ee 7, 8,9, 10

Other Authorities:

Fed. R. Evid. 801 (d) (2) (B) 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No, 83-552

DEWEY T. NABORS, JR.,

~ Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

REPLY OF PETITIONER

DEWEY T. NABORS, JR.

Petitioner, Dewey T. Nabors, Jr., herein responds to

the brief submitted by the Solicitor General for the United

States in opposition to Petitioner’s application for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit.

ARGUMENT

The Solicitor General’s brief is a somewhat surprising

response to Petitioner’s application for a writ of certio-

rari. Rather than addressing the substantive legal issues

in a straightforward manner, the Solicitor General's brief

is largely devoted to conclusory assertions supported, if

at all, by disingenuous manipulations of the relevant

decisional authority. After setting forth argumenis which

2

baldly assume a decision favorable to the government on

the very issues presented for review, the Solicitor General

then nimbly pulls himself up by his own bootstraps and

concludes that there are no substantial issues for con-

sideration by this Court.

Admission of Evidence of Petitioner’s Pre-Arrest Silence

Typical of his misguided response to Petitioner’s applica-

tion for a writ of certiorari, is the Solicitor General’s

argument that the instant case does not present the

question, left open in Jenkins v. Anderson, 447 U.S. 231,

236 n.2 (1980), “whether or under what circumstances

prearrest silence may be protected by the Fifth Amend-

ent.” (Solicitor General’s Brief at 4 n.1). The Solicitor

General attempts to justify this remarkable assertion by

first summarily concluding that silence “in the absence of

any official compulsion does not implicate . . . Fifth

Amendment” protections against self-incrimination,’ and

then suggesting that “official compulsion” must take the

form of “governmental interrogation” at the time of the

defendant’s silence. (Solicitor General’s Brief at 3).

The Solicitor General’s emphasis on the absence of “gov-

ernmental interrogation” in this case merely begs the

question left open in Jenkins and now presented for re-

view. Although Justice Stevens, in his concurring opinion

1 The Solicitor General's citation of Jenkins v. Anderson in sup-

port of this proposition indicates the degree to which he has con-

fused this Court's separate analyses of the due process and self-

incrimination claims raised by the defendant in that case. Whereas

the absence of governmental interrogation in Jenkins was relevant

to the defendant's due process claim, see 447 U.S. at 238-40, it was

not a factor in this Court's analysis of the defendant's claim under

the self-incrimination clause of the Fifth Amendment. Indeed, the

majority in Jenkins explicitly stated that, in light of Raffel v.

United States, 271 U.S. 494 (1926), its decision did not consider

whether or under what circumstances pre-arrest silence may be

protected by the Fifth Amendment right to remain silent. 447

U.S. at 286 n.2. The Solicitor General's reliance on Fletcher v.

Weir, 446 U.S. 608 (1982) is similarly misplaced.

3

in Jenkins, did suggest that an individual’s right not to

incriminate himself exists only when he is under “official

compulsion” to speak, 47 U.S. at 242-44, this view was

flatly rejected by Justices Marshal] and Brennan and has

never been endorsed by a majority of this Court. See id.

at 250 n.4 (Marshall, J., dissenting). The majority in

Jenkins simply applied this Court’s prior ruling in Raffel

v. United States, 271 U.S. 494 (1926), to hold that a de-

fendant who elects to testify in his own behalf waives

Fifth Amendment objections to the prosecution’s use of

his pre-arrest silence for impeachment purposes. 447 U.S.

at 235-38. Since the defendant in Jenkins, unlike the

Petitioner in this case, elected to testify at his trial, it

was not necessary for the Court to decide whether “official

compulsion” is necessary to trigger Fifth Amendment pro-

tections against self-incrimination and, if so, whether

such compusion must take the form of “governmental

interrogation” at the time of the defendant’s silence.

In this regard, Petitioner respectfully submits that

prosecutorial comment upon a non-testifying defendant’s

pre-arrest failure to provide information pertaining to

the charges against him is precisely the type of retribu-

tive sanction the Fifth Amendment was designed to pro-

hibit. That Petitioner’s silence in the present case was

not in response to “governmental interrogation” is not

controlling inasmuch as the violation of his Fifth Amend-

ment rights occurred not when he remained silent, but

when his silence was later used against him by the gov-

ernment as part of its direct case. See Jenkins v. Ander-

son, 447 U.S. at 250 n.4 (Marshall, J., dissenting).

The Solicitor General applies a similarly “flexible”

analysis in arguing that since the prosecution could have

used voluntary statements made by Petitioner in response

to the insurance company’s inquiry, it should be entitled

to use Petitioner’s failure to respond as well. (Solicitor

General's Brief at 3-4). In addition to being unsupported

4

by the Solicitor General’s cited authority,? this argument

appears to rest on a misstatment of the rule that volun-

tary statements following a knowing waiver of an ac-

cused’s privilege against self-incrimination are admissible.

See Lefkowitz v. Turley, 414 U.S. 70 (1978); Garrity v.

State of New Jersey, 385 U.S. 493 (1967). The Solicitor

General apparently contends that since statements made

by a defendant following a voluntary waiver of his Fifth

Amendment privilege are admissible, the prosecution

should be entitled to comment on the silence of a defend-

ant who refuses to waive his privilege against self-

incrimination. This conclusion, of course, was squarely

rejected by this Court in Griffin v. California, 380 U.S.

609 (1976).

In this case, the Solicitor General cannot even seriously

contend that Petitioner waived his privilege against self-

incrimination.* Petitioner has consistently maintained

2 Each of the cases cited by the Solicitor General in support of

this argument involves the admissibility, under an exception to the

hearsay rule contained in Fed. R. Evid. 801(d) (2) (B), of evidence

of a defendant’s tacit admission of guilt (See Solicitor General's

Brief at 4). Under Rule 801(d) (2) (B), evidence of an accused’s

8. snce is admissible over hearsay objections only where his silence

manifests acquiescence to or adoption of a third party’s accusation

of guilt. See United States v. Giese, 597 F.2d 1170, 1195-96 (9th

Cir.), cert. denied, 444 U.S. 979 (1979). In the present case, Peti-

tioner’s silence was not in response to any accusation of guilt, nor

did it manifest his acquiescence to or adoption of any third party

statement.

* Nor can the Solicitor General maintain that had Petitioner

responded to the insurance company’s inquiry, he would have

done so voluntarily. Although Petitioner might have determined

that he had no choice but to respond to the insurance company

if he had known that his silence would later be used against

him by the government as part of its direct case, Petitioner would

have been confronted with “a choice between the rock and the

whirlpool,” Garrity v. State of New Jersey, 385 U.S. at 496, and

any information he might have provided would have been effectively

compelled by the government.

5

throughout these proceedings that his decision to remain

silent, commencing with his refusal to respond to the

insurance company’s demand for a statement under oath,

and continuing through trial with his decision not to

testify, was an invocation of his right to remain silent

protected by the Fifth Amendment. Moreover, Petitioner

asserted his privilege against self-incrimination at the

earliest available opportunity by objecting to the admis-

sion of evidence of his pre-arrest silence, and announcing

his intention not to take the stand, prior to the govern-

ment’s presentation of its direct case. Under these cir-

cumstances, Petitioner respectfully submits that the ad-

mission of evidence of his pre-arrest silence impermissibly

burdened the exercise of his constitutional privilege

against self-incrimination and that, upon full briefing and

plenary consideration, this Court is likely to so find.

Admission of Evidence of Petitioner’s Alleged Prior

Similar Acts

No less surprising than his arguments concerning the

propriety of admitting evidence of Petitioner’s pre-arrest

silence are the Solicitor General’s contentions with re-

spect to the admissibility of evidence of Petitioner’s al-

leged prior similar acts. Although the Solicitor General

asserts that Petitioner affirmatively placed his intent in

issue, it is respectfully submitted that a review of the

trial transcript shows that the issue of inter. was never

genuinely contested. In any event, the district court ruled

upon the admissibility of “prior acts” evidence before the

government had presented any evidence and without

knowing the nature of Petitioner’s defense. Rather than

first determining whether the issue of intent would be

contested and then balancing the government’s need for

prior acts evidence against its clearly prejudicial effect,

the district court admitted evidence of Petitioner’s al-

leged prior similar acts under the theory announced in

United States v. Roberts, 619 F.2d 879 (5th Cir. 1980),

that a defendant’s mere plea of not guilty to conspiracy

charges renders such evidence automatically admissible,

6

unless the defendant stipulates intent. As noted in Peti-

tioner’s application for a writ of certiorari, this “rule”

is not only in conflict with decisional authority in at least

three other circuits, but impermissibly burdens in ac-

cused’s exercise of his Fifth and Sixth Amendment rights.

The Solicitor General’s attempt to brush aside the con-

flict among the circuits on the question of whether a

defendant’s mere plea of not guilty will, in and of itself,

justify the admission of extrinsic offense evidence is

equally unpersuasive. Although the Solicitor General

contends that each of the cases cited by Petitioner in-

volved “substantive offenses,” rather than conspiracy

claims, he conveniently overlooks United States v. Powell,

587 F.2d 443 (9th Cir. 1978), a conspiracy case in which

the Ninth Circuit held, contrary to the decision in the

present case, that a defendant’s mere denial of participa-

tion in the acts evidencing the crime charged does not

raise the issue of intent. Jd. at 448; see also United

States v. Coades, 549 F.2d 1303 (9th Cir. 1977) (con-

cluding that extrinsic offense evidence was not admissible

to prove intent in an attempt case).

Finally, although the Solicitor General contends that it

is constitutionally permissible to require a criminal de-

fendant to “choose” between a jury finding the issue of

intent and the introduction of prejudicial prior acts

evidence, his argument assumes that such prior acts evi-

dence is not only relevant to an issue in the case, but that

the district court has determined that the government’s

need for such evidence outweighs its prejudicial effect.

See United States v. Beechum, 582 F.2d 898, 911 (5th

Cir. 1978), cert. denied, 440 U.S. 920 (1979). As noted

above, however the district court in this case ruled on the

admissibility of prior acts evidence before the govern-

ment’s direct case and without knowing the nature of

Petitioner’s defense. Petitioner respectfully submits that

to require a crimina] defendant either to stipulate intent

or suffer the introduction of clearly prejudicial evidence,

without regard to the government's need for such evi-

7

dence, deprives the accused of his rights to due process

and trial by jury under the Fifth and Sixth Amendments

to the United States Constitution. See generally In re

Winship, 397 U.S. 358 (1970); Screws v. United States,

825 U.S. 91 (1945).

Denial of Petitioner’s Motion to Compel the Govern-

ment to Affirm or Deny the Use of Illegal Electronic

Surveillance

As could be expected, the Solicitor General’s response to

Petitioner’s arguments and authorities concerning the

proper construction of the term “claim,” as used in 18

U.S.C. § 3504 (1976), consists largely of citations to

lower federal court decisions adopting definitions of that

term more favorable to the government’s position on this

issue. (Solicitor General’s Brief at 7-8). These additional

citations, however, only serve to emphasize the conflict

among the lower federal courts on the question of what

constitutes a “claim” sufficient to trigger the govern-

ment’s obligation to affirm or deny the use of unlawful

surveillance under section 3504 and underscore the need

for Supreme Court guidance on this issue.

In apparent recognition of the conflict among the lower

federal courts,‘ the Solicitor General offers an alternative

argument. Contending that the sufficiency of the govern-

ment’s response to a claim under section 3504 should be

* The Solicitor General appears to suggest that, notwithstanding

the differing interpretations of the term “claim” adopted by the

lower federal courts, all of the cases construing § 3504 have re-

quired the defendant to make “detailed allegations” of illegal sur-

veillance. In reaching this conclusion, however, the Solicitor Gen-

eral overlooks a number of cases wherein the government has

affirmed or denied the use of electronic surveillance in response to

allegations of wiretapping which were not particularized. See,

e.g., United States v. Lange, 422 F.Supp. 400, 404 (E.D. Wis.

1976); In re Grusse, 402 F.Supp. 1232, 1234 (D. Conn.), aff'd, 515

F.2d 157 (2d Cir. 1975); see also In re Grand Jury Proceedings,

664 F.2d 423 (5th Cir. 1981), cert. denied, 455 U.S. 1000 (1982);

People v. Grieco, 94 Misc.2d 1043, 406 N.Y.S.2d 426, uff’d, 98

Misc.2d 310, 413 N.Y.S.2d 821 (1978).

judged in relation to the specificity of defendant’s allega-

tions of illegal surveillance, the Solicitor General concludes

that Petitioner’s claim was not sufficiently detailed to re-

quire the government to search its records and unequivo-

cally affirm or deny the use of unlawful surveillance.

Although this rationale for upholding the district court’s

denial of Petitioner’s motion under section 3504 is sug-

gested by the Court of Appeals’ opinion, it is no more

supported by the language or purpose of section 3504

than the requirement that Petitioner’s claim consist of

“an unequivocal statement” that illegal surveillance did

in fact take place.

In the first place, to require detailed allegations of

unlawful surveillance in order to trigger the govern-

ment’s obligation to unequivocally affirm or deny is simply

a roundabout way of requiring that the defendant’s

claim consist of “an unequivocable statement” that un-

lawful surveillance did in fact take place. In those cases

where the defendant is unable, due to the covert nature

of electronic surveillance, to muke such a statement, the

government could simply contend that the specificity of

the defendant’s claim was insufficient to require a re-

sponse. See, e.g., United States v. See, 505 F.2d 845, 856

(9th Cir. 1974), cert. denied, 420 U.S. 992 (1975).

More importantly, to allow the government to vary

its response depending upon the specificity of the de-

fendant’s claim, ignores the gross disparify between the

very real difficulties faced by a defendant attempting to

establish unlawful surveillance and the minor admini-

strative burden placed on the government in requiring it

to affirm or deny the use of such surveillance.’ The co-

5 Although the Solicitor General contends that a record search

of the National Security Agency would have delayed the trial and

placed an undue burden on the government, the Assistant U.S.

Attorney acknowledged at the pretrial hearing that an established

procedure for an agency check, requiring only six to eight weeks,

could have been effected. (Pet. App. A24). Moreover, counsel for

Petitioner advised the district court at the hearing that Petitioner

9

vert nature of electronic surveillance, which makes it

virtually impossible for a defendant to make an “un-

equivocal statement” that surveillance has occurred, also

make is virtually impossible for a defendant to gather

the evidence necessary to formulate “detailed allegations”

that unlawful surveillance has taken place.

In any event, Petitioner respectfully submits that the

government’s response to Petitioner’s claim under sec-

tion 3504 was insufficient under any standard. Although

the portions of the trial transcript selected by the So-

licitor General for quotation seem to suggest that the

government made a categorical denial of the use of any

electronic surveillance, a more careful reading of the

trial transcript shows that the Assistant U.S. Attorney

offered only a qualified statement, expressing his belief

that there had been no surveillance:

I will state further... so far as I know, the evi-

dence in this case is not derived from any monitoring

of any kind. I’ve talked to every agent involved.

I’ve read every report J could find... so far as I

can tell, the case derived from observation of his

activities ....

(Pet. App. A27) (emphasis added). The qualified state-

ments provided by the government in this case stand in

marked contrast to the responses given by the govern-

ment in certain of the cases cited and apparently endorsed

by the Solicitor General in his brief. For example, in In

re Grand Jury Proceedings, 664 F.2d 423 (5th Cir.

1981), cert. denied, 455 U.S. 1000 (1982), the movant’s

allegations of electronic surveillance were remarkably

similar to those made by Petitioner in the present case.

had no objection to proceeding to trial prior to the conclusion of

an agency check. (Pet. App. A33). See United States v. Buck, 548

F.2d 871, 874 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United

States v. Hearst, 412 F.Supp. 863 (N.D. Cal. 1975) (approving

a similar procedure). Thus, it would appear that the government’s

concerns as to the delay and burden of conducting an agency check

were more imaginary than real.

10

The movant, a grand jury witness and member of the

Church of Scientology, and his attorney each submitted

statements reciting their belief that their telephone con-

versations had been intercepted, together with documents

evidencing a policy of certain federal and state agencies

to conduct electronic surveillance of Church of Scientology

members. In response to the movant’s claim under sec-

tion 3504, the government conducted a record search of

no less than eleven federal agencies, including the Na-

tional Security Agency. See also In re Grand Jury Pro-

ceedings, 643 F.2d 626 (5th Cir. 1981) (wherein the

government provided a “categorical denial” in response

to movant’s “general assertion” that questions asked by

grand jury were derived from illegal wiretaps). By con-

trast, there was no denial in the present case, the sole

government response being a qualified statement of the

Assistant U.S. Attorney expressing his belief that no sur-

veillance had taken place.

CONCLUSION

For the reasons stated above and in Petitioner’s

original Petition for a Writ of Certiorari, it is respect-

fully submitted that this Court should grant a writ of

certiorari to review the judgment of the Court of Appeals

for the Eleventh Circuit.

Respectfully submitted,

Of Counsel: GORDON DEAN Boor, JR.

Marc K. RITZMANN Counsel of Record

PAUL JAMES CONNELL 8100 Equitable Building

KILPATRICK & Copy 100 Peachtree Street

3100 Equitable Building Atlanta, Georgia 30043

100 Peachtree Street (404) 572-6500

Atlanta, Georgia 30043 Counsel for Petitioner

(404) 572-6500