Opposition Brief — Edward Spangler v. United States

No. 87-1643

In the Supreme Court of the Gnited States

OcTOBER TERM, 1987

EDWARD SPANGLER, 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

CHARLES FRIED

Solicitor General

JOHN C, KEENEY

Acting Assistant Attorney General

PATTY MERKAMP STEMLER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the district court properly cnarged the jury on

the subject of character evidence.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Black v. United States, 309 F.2d 331 (8th Cir. 1962), cert.

EE 5

Carbo v. United States, 314 F.2d 718 (9th Cir. 1963), cert.

denied, 377 U.S. 953 (1964) ............ ccc cece eeeee 5

Edgington v. United States, 164 U.S. 361 (1896) ........ 4

Michelson v. United States, 335 U.S. 469 (1948) ........ 4

Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956),

cert. denied, 352 U.S. 1025 (1957) .................. 5

Smith v. United States, 30S F.2d 197 (9th Cir.), cert.

a 6

United States v. Borders, 693 F.2d 1318 (11th Cir. 1982),

cert. denied, 461 U.S. 905 (1983) ................... 5

United States v. Burke, 781 F.2d 1234 (7th Cir. 1985).... 4, 5,

6, 7

United States v. Cramer, 447 F.2d 210 (2d Cir. 1971),

cert. denied, 404 U.S. 1024 (1972) .................. 6

United States v. Fayette, 388 F.2d 728 (2d Cir. 1968) ..... 6

United States v. Foley, 598 F.2d 1323 (4th Cir. 1979),

cert. denied, 444 U.S. 1043 (1980) .................. 5

United States v. Hunt, 794 F.2d 1095 (Sth Cir. 1986) ..... 5

United States v. Lewis, 482 F.2d 632 (D.C. Cir. 1973) .... 6

United States v. Lowenthal, 224 F.2d 248 (2d Cir.

EE DE 6

United States v. Marquardt, 786 F.2d 771 (7th Cir.

ae 0 5

United States v. McMurray, 656 F.2d 540 (10th Cir.

1980), rev’d, 680 F.2d 695 (10th Cir. 1981) ............ 5-6, 7

(III)

Cases — Continued:

United States v. Minieri, 303 F.2d 550 (2d Cir.) cert.

IV

CE Be Ee EE 6 ko6 0 6-484 deeseeccaseese

United States v. Winter, 663 F.2d 1120 (ist Cir. 1981),

cert. denied, 460 U.S. 1011 (1983) ..................

Statute:

18 U.S.C. 1951

Page

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1643

EDWARD SPANGLER, 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

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-7a) is

reported at 838 F.2d 85.

JURISDICTION

The judgment of the court of appeals was entered on

January 29, 1988. A petition for rehearing was denied on

February 19, 1988. The petition for a writ of certiorari was

filed on April 4, 1988. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of Pennsylvania, petitioner was

convicted on 14 counts of extortion and one count of con-

spiracy to commit extortion, in violation of 18 U.S.C.

1951 (C.A. App. 5, 7-35). He was sentenced to concurrent

(1)

2

terms of seven years’ imprisonment on the extortion

counts and to a five-year term of probation on the con-

spiracy count (C.A. App. 6). The court of appeals af-

firmed (Pet. App. la-7a).

1. a. The evidence at trial showed that petitioner, a

lieutenant in the vice squad of the Philadelphia Police

Department, was involved with two other vice squad of-

ficers, Andy Kelly and co-defendant Anthony Mairone, in

a systematic pattern of extortion. During a period of

several months in the early 1980’s, Kelly and Mairone col-

lected protection payments — generally between $5,000 and

$6,000 per month—from several numbers writers and a

sports betting operator. Mairone or Kelly would typically

deliver the extorted money to petitioner, who would count

it and divide it up among the three of them. Pet. App.

2a-3a; Gov’t C.A. Br. 4-5.

b. Petitioner testified at trial and denied all the

charges against him (see C.A. App. 682-684). He also

called several witnesses who testified regarding his reputa-

tion in the community (Pet. App. 3a). Co-defendant

Mairone also presented various character witnesses (ibid. ).

Both petitioner and Mairone asked the court to instruct

the jury that “[e]vidence of good reputation in and of itself

can create a reasonable doubt” (ibid.). The district court

agreed to give a “character witness instruction,” but it did

not specify the particular form of the instruction (ibid.).

Thereafter, counsel for Mairone told the jury during sum-

mation that “the reputation evidence in [and] of itself can

create a reasonable doubt” (C.A. App. 750).

During the final charge to the jury, the court stated

(Pet. App. 3a):

Now, you did hear some, some people call it character

evidence, reputation evidence.

You heard a number of character witnesses, each of

whom, some of whom, let’s put it that way, I think,

3

stated their personal opinion, as well as the reputation

of the defendant in the community for honesty and

being a law abiding citizen and the law says, you

should consider such character evidence along with all

the other evidence you heard in the case when making

your determination as to whether the government has

proved, beyond a reasonable doubt, that the defend-

ant whose case you are then considering, committed

the particular crime or crimes that are alleged in the

indictment.

The jury subsequently convicted petitioner on all counts

(C.A. App. 3).

2. The court of appeals affirmed (Pet. App. 1la-7a).

The court held that the district court was not required to

instruct the jury that evidence of good reputation, stand-

ing alone, is sufficient to create a reasonable doubt.

Rather, the district court was simply required to apprise

the jury, as it did here, of “its duty to take character

evidence into account with all of the other evidence in

deciding whether the government has proved its charge

beyond a reasonable doubt * * *” (id. at 6a). The court

also rejected petitioner’s claim that the district court had

breached a promise to give a “standing alone” instruction.

The court found “no such promise in the record” (ibid.).

In addition, the court noted that, to the extent that defense

counsel believed that such an instruction would be given

by the district court, petitioner was not harmed because

“counsel was free to place greater emphasis on the

significance of the character evidence than did the trial

judge” (ibid.).

ARGUMENT

Petitioner contends that the district court erred in fail-

ing to instruct the jury that evidence of good reputation,

standing alone, can create a reasonable doubt. That claim

lacks merit and does not warrant further review.

4

1. The court of appeals correctly held that a “standing

alone” instruction is not required. Petitioner can cite noth-

ing in the Constitution or in any statute or rule that man-

dates such an instruction. Nor has this Court ever heid

that such an instruction is necessary.'

Furthermore, there is no policy reason for such an in-

struction. To the contrary, an instruction that singles out

character evidence for special treatment is both misleading

and confusing. As the Seventh Circuit has noted, “[(t}he

‘standing alone’ instruction conveys to the jury the sense

that even if it thinks the prosecution’s case compelling,

even if it thinks the defendant a liar, if it also concludes

that he has a good reputation this may be the ‘reasonable

doubt’ of which other instructions speak.” United States v.

Burke, 781 F.2d 1234, 1239 (1985). Such an instruction

makes little sense, the court noted, since “[pJeople of im-

peccable reputation may commit crimes, and when they

are charged with crime the question is whether they did it,

not whether they enjoy a high social standing” (ibid.).

! This Court’s decisions in Edgington v. United States, 164 U.S. 361

(1896), and Michelson v. United States, 335 U.S. 469 (1948), do not

hold that a “standing alone” instruction is required in connection with

character evidence. In Edgington, the Court simply refused to sanc-

tion instructions that treat character evidence as disfavored evidence.

in Michelson, the issue was whether the prosecutor erred in introduc-

ing bad act evidence in response to defendant’s character evidence. To

be sure, the Court suggested in both cases that character evidence

could itself create a reasonable doubt (see 164 U.S. at 366; 335 U.S. at

476), and there is dictum in Michelson that could be read to suggest

that “in some circumstances” a “standing alone” instruction should be

given (ibid.). Yet the issue of whether a “standing alone” instruction is

required was not before the Court in either case, and neither case held

that character evidence must be singled out for a special instruction.

See United States v. Burke, 781 F.2d 1234, 1240-1241 (7th Cir. 1985)

(explaining why Edgington and Michelson do not require a “standing

alone” instruction).

5

Moreover, the argument that character evidence should be

singled out for special attention is particularly weak in

light of the fact that, as the court in Burke noted (ibid.),

“(njo instruction flags any other evidence for this

analysis — not eyewitness evidence, not physical evidence,

not even confessions.”

In this case, the district court instructed the jury that the

character evidence should be considered along with all the

other evidence on the question whether the government

proved the charges beyond a reasonable doubt (see Pet.

App. 3a). That instruction was entirely proper, and peti-

tioner was entitled to nothing more.

2. There is likewise no merit to petitioner’s claim (Pet.

4-5) that review is necessary to resolve a conflict among

the circuits. In general, it is now well established among

the circuits that a trial court does not commit reversible

error in refusing to give a “standing alone” instruction,

particularly where, as here, the defendant testified on his

own behalf or offered other evidence in addition to char-

acter evidence. See, e.g., United States v. Hunt, 794 F.2d

1095, 1098, 1099 (Sth Cir. 1986); United States v. Mar-

quardt, 786 F.2d 771, 783 (7th Cir. 1986); United States v.

Borders, 693 F.2d 1318, 1328-1330 (11th Cir. 1982), cert.

denied, 461 U.S. 905 (1983); United States v. Winter, 663

F.2d 1120, 1146-1149 (1st Cir. 1981), cert. denied, 460

U.S. 1011 (1983); United States v. Foley, 598 F.2d 1323,

1336-1337 (4th Cir. 1979), cert. denied, 444 U.S. 1043

(1980); Carbo v. United States, 314 F.2d 718, 746-747 (9th

Cir. 1963), cert. denied, 377 U.S. 953 (1964); Black v.

United States, 309 F.2d 331, 343-344 (8th Cir. 1962), cert.

denied, 372 U.S. 934 (1963); Poliafico v. United States,

237 F.2d 97, 114 (6th Cir. 1956), cert. denied, 352 U.S.

1025 (1957); cf. United States v. McMurray, 656 F.2d 540,

551 (10th Cir. 1980), rev’d on other grounds, 680 F.2d 695

6

(10th Cir. 1981) (indicating that a “standing alone” in-

struction is necessary where defense case is based solely on

character evidence, but stating that such an instruction

should not be given where the defendant presents other

evidence to rebut the government’s proof); Smith v.

United States, 305 F.2d 197, 206 (9th Cir.) (indicating that

a “standing alone” instruction is ordinarily not necessary),

cert. denied, 371 U.S. 890 (1962); but cf. United States v.

Lewis, 482 F.2d 632, 637 (D.C. Cir. 1973) (stating in dic-

tum, in a case not raising the issue, that a defendant is en-

titled to a “standing alone” instruction). In fact, while

some circuits permit such an instruction in the trial court’s

discretion, other circuits actually prohibit such an instruc-

tion. See Burke, 781 F.2d at 1241 & n.3 (collecting cases).

To be sure, the Second Circuit has indicated on two oc-

casions that a “standing alone” instruction must be given,

apparently without regard to whether the defendant

presented evidence other than character evidence. See

United States v. Cramer, 447 F.2d 210, 219 (1971), cert.

denied, 404 U.S. 1024 (1972); United States v. Minieri, 303

F.2d 550, 554-555, cert. denied, 371 U.S. 847 (1962). In

both of those cases, however, the failure to give the in-

Struction did not constitute reversible error, in part

because the trial courts had given instructions similar to

those given in the present case. See 447 F.2d at 219; 303

F.2d at 555. Moreover, other Second Circuit cases have in-

dicated that a “standing alone” instruction is not required.

See United States v. Fayette, 388 F.2d 728, 737 (1968);

United States v. Lowenthal, 224 F.2d 248, 249 (1955). We

know of no Second Circuit case that has reversed a convic-

tion because of a failure to give a “standing alone” instruc-

tion. In light of the trend in other circuits rejecting such an

instruction, see Burke, 781 F.2d at 1241-1242 & n.3, it is

far from clear that the Second Circuit would require a

“standing alone” instruction if confronted with the issue

today, particularly where, as here, the defendant testified

and denied the charges. See generally Burke, 781 F.2d at

1238, 1242 n.5; McMurray, 656 F.2d at 551. Since peti-

tioner has not shown that, under the facts of this case, he

would have been entitled to a “standing alone” instruction

in any circuit, review by this Court is not necessary to

resolve the purported inter-circuit conflict.?

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

PATTY MERKAMP STEMLER

Altorney

MAY 1988

2 Petitioner’s factbound claim (Pet. 6-7) that he was misled as to the

precise instruction that the trial court intended to give likewise does

not merit further review. As the court of appeals noted (Pet. App. 6a),

the district court did not mislead petitioner. Moreover, petitioner does

not explain how his closing argument would have been any different

had he known in advance the precise wording of the trial court’s in-

struction. Thus, even if petitioner were correct that the trial court

misled him, he has not shown that the outcome of the case was af-

fected by the court’s action (see ibid.).

1 US GOVERNMENT PRINTING OFFICE: 1988— 202-037/60472