# Petitioners Reply Brief — Nabors v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0547%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1021

## Text

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

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TABLE OF CONTENTS

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Admission of Evidence of Petitioner’s Pre-Arrest
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Admission of Evidence of Petitioner’s Alleged
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Denial of Petitioner’s Motion to Compel the Gov-
ernment to Affirm or Deny the Use of Illegal Elec-
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0547%3A3. Public record. Not legal advice.