Record and brief — John Reed v. United States

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CASE NBF:

SHORT TITLE

VERSUS

PROCEEDINGS AND ORDERS DATE: 111386

S6-1-05211 cry

Reed. John DOCKETED: Aug 4 1936

United States

Proceedings and Orders

PSs Petition for writ of certiorari and motion for leave to

Procecd in forme Paeuperis filed.

Se Order tende time to file response to petition until

October 8. 1986,

98 Brief of respondent United States in OPPOSition filed.

"Se DISTRIBUTED, October 31, 1986

2 REDISTRIBUTED, November 7, 1989

= Fetiation DENIED, Dissenting OPINION dy Justice White.

(Detached OPiNnion,)

* T

PETITION

FOR WRIT OF

CERTIORARI

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1966

Petitioner,

SITED STATE MERICA

Fé 16 ?

sco + * 7 — Stor „

PE ION FOR A WRI F CERTIORARI

THE NITED STATES C RT F APPEA

* L $s * — 4

HENRIETTE D. FOFFMAN

THE LEGAL AID SOCIETY

FEDERAL DEFENDER SERVICES UNIT

531 United States Courthouse

Foley Square

New York, New York 100C

Tel. No.: 1212 712-2971

Attorney for the Petitioner

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JOHN REED,

Petitioner,

UNITED STATES OF AMERICA,

Responcent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

QUESTION PRESENTED

1. Whether the District Court's erroneous decision to

permit an alternate juror to deliberate and participate in the

verdict as a thirteenth juror constituted a prejudicial violation

of petitioner's nonwaivable right to be tried by a jury untainted

by the participation of an unauthorized person (Fed.R.Crim.P. 24ic)).

2. Whether the jury charge on conscious avoidance of

knowledge impermissibly diluted the mens rea requirement for

conviction of both the conspiracy and wire fraud counts.

Page

„ „% . ð ”ir · „ rere „„ „„ i

Table of Cases Cited

Questions Presentec ‚G—ͤUUUUU HV ¶ ‚ * Preceding pege

opinions BELOW co ccccc cece nen enenweweeeeeneeeeeeeeeeeee i

JUTASGACEAON cece cece een ew eee e nent eeeeeenneeeeeeeenes 1

RULES IuvoCktkkkkkkhhowa eeeeeeeeesenreneees 1

Statement Of the case 2

be F levant to th -P n

Deliberat A nd V ict ee „ „ „% „% „ „% % % „% „ „ „ „„ „„ 3

Se Facts Relevant to he Conscic Avo ne

Instruction *eeeeoeveeeeeeeeveeeneeneneeeereeeeeeeerere ee *

Resaecns For Granting the Writ

1. THE 13-PERSON Fer DELIBERATION AND VERDICT CONSTITUTES

A PREISUDICIAL VIOLATION OF PETITIONER'S NCNWAIVABLE RIGHT

TO A JURY UNTAINTED BY THE PRESENCE AND PARTICIPATION OF

AN UNAUTHORIZED JUROR (FED.R.CRIM.P. 24{c)) 7

A. t nfa r re a defendant to prove actus?

pre-ucice from a Rule 24ic) violation because the

secrec E ration k mpossibie

or him to @o 8 „5 2 „%%% %% „6 „6„6„6„6„ „„ „„ „ „ „ „ 66 7

Il. THE JURY CHARGE ON CONSCIOUS AVOIDANCE OF KNOWLE LE

DILUTED THE MENS REA REQUIREMENT FOR CONVICTION OF

CONSPIRACY AND WIRE FRAUD E „ „ l4

A. 8 * ancons nt

fn a n

SD 15

8. * Ager tent

with the mental state of specific antert to defraud

reguired in wire fraud — TTT? TTT 17

Conclusion e*eeeeeev eee eeeeeeeeeeereeeeeeeeee 17

-i-

TABLE OF CASES

Davis v. Georgia, 429 U.S. 122 (1976) wunennnncnnnveves

Horne v. United States, 264 F.2d 40 (Sth Cir.),

Cert. denied, 360 U.S. 934 (1959) .ncucenevecceees

King v. United States, 576 F.2¢ 432 (24 Cir.),

cert. Genies, 439 U.8. 950 (1978) „„ „ „ „„ „% „ „ „ „ „ „ „ „ „

Kuykendall v. Southern Ry. Co., 652 F. 20 391

(4th Cis. 1981) ee „„ „„ „ „ „ „ „-⸗ÜäGae

Sheppard v. Maxwell, 384 U.S. 333 (1966) -ssnceunneeees

Tumey v. Ohio, 273 U.S. SIO 682777 teeeeeees

United States v. Allison, 481 F. 20 468

eee. ceseovceces 5606000000000

Unites States v. Bailey, 444 v.5. D

Zee. D F. 2d 468

ee. BETES cocosesesssesess ä ee

United States v. Chatman, 564 F.2¢ 1358

14 cis. 1978) referee „ „ „„ „ „ „ „ „ © „ „ © © „ „ „ „

United States v. Chavis, 719 f. 2d 46

120 Cir. 1983) ne = == „ „ „ „ ‚ % » „ „ „„ „ „

United States v. ambrone, ~87 F.24 7994

12d Care 1986) ee eevrereeteee ee © se „ ff © eee ee „ „ „ „ ©

United States v. Gelb, 700 F.2¢ 875 ( r

cert. denied, 104 S.Ct. 167 % %%lni

United States v. Green, 523 F.2¢ 229 (2¢ Cir.),

cert. denied, 423 U.S. 1074 (1975) „„ ——

tes States v. eee eee 446 F.2d 676

(9th Cir. 1971) „ „ „„ „% „% „ „„ „ „„ „ „ „ „„ „„ „ ee eee „„ „„ „ „„

1442

Uniteé States v. Bayutin, 398 F.2¢ 944 (22 Cir.},

Gert. denied, 393 U.S. 961 (1% %%chhQÆꝑ . 9.

Unated States v. Hillaré, "Ol F.2¢ 1052 (26 Cir.},

Cert. eng. 461 U.S. 930 1% % /ͤͥã(eiilirirrr

rn. 763 F.2¢ 516

(22 Cis. 1965) „„ „ „ „„ „ ee |

Ungted States v. Pr $29 r. 24 1153

United States v. Lanza, 90 F. 20 1015 «(24 Cir. 1986) 90

United States v. bizarrega-Lizarrage, S41 F.3d 8L¢

(9th Cag. 19°76)

United States v. Mahler, $79 F.2¢ 730 (26 ci. ,.

cert. geried, 423 U.S. O72 11978) Sosse sees es

United States v. Markani. "38 F.id $38 2 Cir. 1984)

United States v. Sash, 614 F.2¢ 234 (24 Cir.},

Gert. denied, 396 U.S. 940 (1969) 2 gandébean

Unites States v. Neal, €92 F.2¢ 129¢€

C2OCR Cas. SZ cc!!!

United States v. Pachay, 71l F.2¢ 486

(26 Cig. 1983) ...cees „eee eee

United States v. e. 475 F.2¢ 1326 (D.C. Car. 1973)

Unated States v. Roby, 592 F.2d 406 (8th Cir.)

(per curiam), cert. denied, 442 U.S. 944 (1979)

Unated States v. Spiegel, 604 2 961

(Sth Cac. 1979), cert. Genied, 446 U.S. $35 (1960)

United States v. Taylor, 498 F.2¢ 390 (6th Cir. 1974)

Unated States v. Vegas, 447 . 26 (% (24 Cir. 1971),

cert. genied. 4ao4 9.8. lois 11972 ree ee eee ee eee

111

United States v. Virginia Erection Corp., 335 F. 2d 868

(4th Cis. 1964) „5 „2 „4m %% % % „% „% % % „% „% „ „ „„ „„ „„ „„ „ „ „„ „„ „„ 8, 9, 11

United States v. Watson, 669 F.2d 1374

(llth Cae « 1982) „„ © „ „ „ © “ee : „„ „„ „ „ „ „ „ „[-˖ÜUũv e e 7, 9

United States v. Widgery, 636 F.2d 200

(8th Cat. 1980) „ 2 „ „2„%„% „% „%„ ĩñͥ ! „% ͤũõ ee eee 17

United States v. Wieschenberg, 604 F. 2d 236

(Sch Cis. 1979) reff © „„ „„ „ „ „ ©

„ „% „% K — — F 15

Vasguez v. Hillery, 54 U.S.L.W., 4068

(U.S. Jam. 14, 1966 5 20 10

Williams v. Florida, 399 U.S. 8 (197 ů)0ꝶ 55220 8, 9

Williams v. United States, 332 F. 2d 36 (7th Cir. 1964),

cert. denied, 379 U.S. 976 (1965) ‚ —„7ͤ—ͤ**ã * ii

STATUTES, REGULATIONS AND RULES

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§ 127.02 MPTTTITTTTIT TTT Tt eee eeesese eoeece 4

22 U.S.C. 627 „„„„6ç 5654 2 2 „ „40 50 „20 4

red. R. Cr Im. P. 2400 ců 6 „6 2 WTTTTITITITTT TT

230 — „6 6 50 0 6 0% %%% PASS

OTHER AUTHORITIES

L.B. Orfield, CRIMINAL PROCEDURE UNDER THE FEDERAL RULES,

$24:104 at 203 (1966) ..

“eee @ „„ „„ „ „„ „„ „„ „ „„ „ „„ „„ eee „„ „„ „6

SUTHERLAND STAT. CONST. 625.06 19% / „„ „6 6 „ 0 600

H. zeisel and S.Diamcnd, THE JURY SELECTION IN THE

MITCHELL=-STANS CONSPIRACY TRIAL, American Bar

Foundation Journal 151 (1976) 4 6 8 8 0 0

APPENDIX

Jucoment of the Court of Appeals May 5, 1986 ...

—— ee

Opiricn and Order of the United States Court of Appeals

for the Second Circuit May 5, 1986

Order denying petition for rehear.ng and rehearing en banc

June 19, 1986

-VvVe-

Page

TO THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES

AND THE ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME COURT.

Petitioner, John Reed, respectfully requests that a writ of

certiorari issue to review a judgment of the United States Court

of Appeals for the Second Circuit affirming a judgment of the

United States District Court for the District of Connecticut,

convicting petitioner, after a jury trial, of conspiracy to

violate the Arms Export and Import Control Act (22 U.S.C. 62778)

and wire fraud (18 U.S.C. §1343).

OPINIONS BELOW

The Court of Appeals rendered an opinion on May 5, 1986,

which is officially reported at 790 F.2d 208. A copy of the slip

Opinion is annexed as Appendix B. On June 19, 1986, the Court of

Appeals denied a petition for rehearing with a suggestion for re-

hearing er banc. A copy of the order is annexed as Appendix C.

JURISDICTION

The judgment of the Court of Appeals was entered on May 3,

1986. A copy of the judgment is annexed as Appendix A.

NO application has been filed for an extension of time

within which to file this petition.

The Court's jurisdiction is invoked under 28 U.S.C.

§$1254(1).

RULES INVOLVED

Fed.R.Crim.P. 24(c)

Rule 24. Trial Jurors

direct that not more than 6 jurors in

addition to the regular jury be called

and impanelled to sit as alternate ju-

rors. Alternate jurors in the order

in which they are called shall replace

jurors who, prior to the time the jury

retires to consider its verdict, become

or are found to be unable or disquali-

fied to perform their duties. Alter-

-l-

nate jurors shall be drawn in the same

manner, shall have the same qualifica-

tions, shall be subject to the same

examination and challenges, shall take

the same oath and shall have the same

functions, powers, facilities and

privileges as the regular jurors. An

alternate juror who does not replace

a regular juror shall be discharged

after the jury retires to consider its

verdict. Each side is entitled to l

peremptory challenge in addition to

those otherwise allowed by law if 1 or

2 alternate jurors are to be impanneled,

2 peremptory challenges if 3 or 4 alter-

nate jurors are to be impannelled, and 3

peremptory challenges if 5 or 6 alter-

nate jurors are to be impanelled. The

additional peremptory challenges may be

used against an alternate juror only,

and the other peremptory challenges

allowed by these rules may not be used

against an alternate juror.

STATEMENT OF THE Ca

John Reed's conviction arcse out of his limited ro.e in ar

abortive scheme to export chemical protective suits and Cecon-

tamination units to Iran and Afghanistan in violation of the Arms

Export and Import Control Act (22 U.S.C. §2778) and the Interna-

tional Traffic in Arms Regulations (22 C. F. R. §§121-30) which

require a government license to export defense articles on the

Munitions List. Chemical protective suats are among the

enumerated items on the Munitions List, and since 1960, it has

been government policy to refuse licenses for shipment of items

on the List to Iran and Afghanistan.

Petitioner Reed had no role in formulating the charged

scheme, which was devised by Rene Schuler, a codefendant who

pleaded guilty prior to trial and testified for the government.

Schuler's plan was to ship 400,000 suits to Iran via Italy,

falsely stating that Italy was the final destination of the

goods, thus enabling him to obtain an export license. Peti-

tioner's role was limited to introducing Schuler to a supplier

who became suspicious that the deal was illegal when he learned

-2-

that the suits were destined for a Middle Eastern country. The

supplier notified the united States Customs Service, and an

agent, poSing as the seller's export manager, entered the case.

Purporting to negotiate the deal with Schuler, the agent gene-

rated extensive evidence that formed the basis of the prosecu-

tion's case.

Petitioner's defe.se at trial was that he never intended to

violate the import-export laws and did not even know the suits

were destined for Iran until the deal had fallen through and the

charged conspiracy was over.

Ra Facts Relevant to the 13-Person Jury Deliberation and

Verdict

After both sides had rested, the court proposed to ccunsel

that the remaining alternate juror be permitted to deliberate and

participate in the verdict. The jucge stated as follows:

Gentlemen, three things. There is an

alternate on the jury who stuck through

six weeks of th.s and 15 days

You might consider and talk with your

client, Mr. Weinberger, as to what we

want to do. My preference would be to

let him deliberate, in which case you'd

need a unanimous jury of 13. That has

to be agreeable to both the Government

and defense of course. If somebody

were to fall ill or be indisposed during

deliberations, you still would have a

jury of 12 verdict [sic]. If he were

able to deliberate throughout, then he

would participate in the verdict.

I like to do that because it's been

a long trial, and I hate to see the

gentlemen not be able to deliberate.

I can't do that unless the parties agree.

Give that some thought and let me know

in due course when we finish the charge.

After a brief recess, defense counsel informed the court

that he and the prosecutor agreed to the court's suggestion:

The panel's opinion stating that “both sides agreed to the

judge's proposal,” slip. op. at 3104, is correct but omits the

fact that the only agreement on the record was between defense

counsel and the prosecutor. There is no indication in the record

that the defendant consented to the thirteen person jury.

-j-

MR. WEINBERGER [dete counsel):

During the break, Your Honor, Mr.

Shockley and I conferred. We've

agreed to go along with your sug-

gestion that the alternate be in-

cluded.

THE COURT: All right. I think

he'll be very pleased with that,

and I will notify him and tell him

what that means about deliberation.

The court explained the l3-person jury procedure to the

jurors as follows:

I always like in all cases, criminal

or cival, to try to permit the alternate

or alternates to deliberate and reach

a verdict with the jury. ... {[Sjo

we're going to ask Mr. Donahue to par-

ticipate with you. That has to be by

consent of the parties and counsei.

They have graciously given me consent.

All 13 of you will deliberate. If

somebody becomes ill or indisposed, we

can stiil have a verdict of 12. Other-

wise, it will have to be a unanimous

verdict of 13.

A l3-person jury @eliberated over a period of three days

and found Reed guilty on both counts.

On appeal, petitioner argued that the alternate er's

deliberation and participation in the verdict presented the

paradigm of taint which has been held to constitute prejudice

requiring reversal, United States v. Jones, 7€3 F.2d 5:8, 322

Cir. 1985); United States v. Mahler, 579 F.2d 730, 737 (28

cert. denied, 439 U.S. 872 (1978); United States v. Hayutin,

if.

398

F. 2d 944 (2d Cir.), cert. denied, 393 U.S. 961 (1968), subsequent

appeal sub nom, United States v. Nash, 414 F. 20 234 (d Cir.),

cert. denied, 396 U.S. 940 (1969). Additionally, petitioner

argued that Rule 24(c) violations could not be waived by

stipulation cf counsel. United States v. Hayutin, supra, 398

F. 2d at 950; United States v. Virginia Erection Corporation, 335

F. 2d 868, 873 (4th Cir. 1964); United States v. Beasley, 464

-4-

F. 2d 468, 470 (10th Cir. 1972); Un v. Allison, 481

F. 2d 468, 472 (Sth Cir. 1973).

The Court of Appeals rejected these arguments. First, it

Geparted from the concept of prejudice employed in every prior

precedent and substituted a standard of personal prejudice,

which, it found, petitioner had not met. Appendix B, slip. op.

at 3104-05. Focusing on jury size rather than on the presence of >

an unauthorized participant, the panel found that petitioner was

not prejudiced because “there is no likelihood whatever that a

thirteen man jury would convict more readily than would a

twelve-man jury”. Id. at 3103-06.

Second, the panel also held that petitioner waived his right

under Fed.R.Crim.P. 24(c) to a jury of no more than 12 sespite

the absence in the record of any statement by either t*e defense

counsel or the defendant that petitioner himself conse:.ted. Al-

though Rule 24(c) is a mandatory rule, the panel relied on cases

involving the pre-1983 Rule 23(b), a discretionary rule provid-

ing for juries of less than twelve. The panel held that defense

counsel was his client's agent and that the trial court could

accept counsel's waiver without any personal colloguy between the

court and the defendant. Id. at 3106-07. The panel noted that

several circuits reguire a defendant's personal assent on the

record, but held that any error in failing to do so was harmless

beyond a reasonable doubt. Id. at 3107.

"the pertinant part of Rule 2400 reads “an alternate juror

who does not replace a regular juror shall be discharged after

the jury returns to consider its verdict” (emphasis added).

*pricr to the 1983 amendment Rule 23(b) read as follows:

(b) Jury of Less Than Twelve. Juries shall

be of 12 but at any time before verdict the

parties may stipulate in writing with the

approval of the court that the jury shall

consist of any number less than 12 or that

a valid verdict may be returned by a jury

of less than 12 uld the court find it

necessary to excuse one or more jurors for

any just cause after trial commences.

(emphasis added)

-5-

2. Facts Relevant to the Conscious Avoidance Instruction

In a charge conference prior to summations, defense counsel

objected to the court's giving 4 conscious avoidance charge in a

conspiracy case. Counsel argued t.at the essence of conspiracy

was an agreement anc that there had to be a meeting of the minds

as to the nature of the illegal action contemplated. The Dis-

trict Court disagreec and gave the following charge on conscious

avoidance:

Nonetheless, to establish the essential

element of guilty knowledge, it is not

necessary for the Government tc prove

to @ certainty that the defendant knew

thet the suits were headed for an il-

legal destination. It is enough that

the Government proves beyond a reasor-

able doubt that the defendant was aware

of a hagh probability of an iliegal

Gestinetion. If the Government proves

this awareness ard shows the defenda-+

Geiiberately refused to learn the ac-

tual facts, then the Government has

provec the element of guilty knowledge.

Petitioner argued to the Court of Appeals that the cor scicu

evoicgance instruction was iamproper on the corspifecy ccurt,

citang the Second Circuit's decisions in United States v.

MarKans, 736 F.2¢ 538, S47 (24 Cir. 1966), and United Staces v.

re 767 F.26 "99, B10 (24 Cir. 1966).

The panel rejected the argument, eld, set it was proper

to give the conscious evoidance instruction on the conspiracy

count. The panel apparently made a distinction between knowing

Pperticipation in @ scheme and knowledge of the unlawful aims end

objectives of a scheme, as follows:

In Mankans, the Court rejected the

Government's argument that a defen-

gant could become a member of @ con-

Spiracy by consciously avoiding par-

ticipating in it. Where, as here,

the defendant has become a member of

@ joint undertaking, he cannot vod

responsibility for its unlawful acts

by closing his eyes to what is readily

apperent. Appendix B, Slip op. at 3108.

-6-

I. THE 13-PERSON JURY DELIBERATION AND VERDICT CONSTITUTES A

PREJUDICIAL VIOLATION OF PETITIONER'S NONWAIVABLE RIGHT TO

A JURY UNTAINTED BY THE PRESENCE AND PARTICIPATION OF AN n-

AUTHORIZED JUROR (FED.R.CRIM.P. 24(c))

The panel's opinion departs from all prior precedents in

adopting @ standard of actual prejudice that requires «a defen-

Gant to prove that there was a “likelihood” that he was more

“readily convicted” es a result of the Rule 24e violation.

Thas standard is unworkable and unjust. The paramount public

policy of protecting the integrity of jury verdicts prohibits

“anvestagation into the subjective motivetions and mental pro-

cesses of jurors.” United States v. Green, $23 r. 24 229, 235 120

Cir.), cert. denied, 423 U.S. 1074 (1975); King v. United States,

$76 F. 2d 632, 436 (24 Cir.), cert. denied, 439 U.S. @50 (1978).

Consequently a defendant has no way to determine the unaethorized

juror’s role in deliberations and the verdict.

Untal petitioner's case, the Second Circuit, es well as

every other circuit thet addressed the issue, held that preju-

dice was established in the context of a Rule 24ic) violation if

the unauthorized alternate participated in deliberations because

participation itself taints the jury. Tainting of « properly

constituted jury of twelve is viewed so seriously that it is

equated with prejudice. United States v. Jones, 763 F.24 $18,

522 (2d Car. 1985); United States v. Hayutin, 398 F.24 944, 950

(2¢ Car.}, cert. denied, 393 U.S. 961 (1966), subsequent appeal

Sub nom. United States v. Nash, 414 F.2¢ 234 (24 Cir.), cert.

Genes, 396 U.S. 940 (1969); United States v. Watson, 669 F.2¢

ot~«

1374, 1391-92 (llth Cir. 1982); United States v. Lamb, 529 F.2d

1153, 1156 (9th Cir. 1975); United States v. Allison, 481 F.2d

468, 472 (Sth Cir. 1973). Indeed the Fourth and Tenth Circuits

have adopted an even stricter rule and find the mere presence of

an alternate in the jury room per se reversible error. United

States v. Chatman, 584 F. 24 1358 (4th Cir. 1978); (United States

v. Virginia Erection Corp., 335 F.24 868 (4th Cir. 1964);" United

States v. Beasley, 464 F.24 468 (10th Car. 1972).°°

The panel's opinion not only adopts a standard of prejudice

that is impossible for a defendant to meet, but it also presumes

lack of prejudice by relying on the general statistical proposi-

tion that the risk of convicting an innocent person increases as

sury Size diminishes. Appendix B, slip op. at 3105. This analy-

816 ignores the equally weli-«nown proposition that statistics

are meaningless in an individual case and because of the funda-

mental principle that tury deliberation be secret, we cannot

determine the role of an alternate in deliberations. WHowever, as

the study by Professors Hans Zeisel and Shari Diamond establishes,

The Jur lection in the Mitchell-Stans Con 8 ial, Americar

Bar Foundation Journal 151, 162-66 (1976), one juror can turn a

tury eround. Congress’ refusal to amend Rule 21e in the sixteen

years since Williams v. Florida, 399 U.S. 78 (1970), held thet a

jury of twelve was not constitutionally required demonstrates

wheguivocally its decision to establish a uniform, bright-line

“the Fourth Circuit also followed the rule of rever-

sal in the civil context where a case was 6 itted to a jury of

seven and an alternate. Kuykendall v. Southern Ry. Co., 652 F.2¢

391 (4th Circ. 1981).

Accord L.B. Orfield, CRIMINAL PROCEDURE UNDER THE FEDERAL

RULES, $24:104 at 203 (1966):

The presence of an alternate juror in the

jury room during the deliberations of the

twelve regular jurors is error, even though

he does not participate in the deliberations,

Since it is violative of the cardinal prin-

ciples that the jury shall consist of twelve

that their deliberations shall remain private

and secret.

rule, prohibiting an alternate's participation with the properly 7

constituted jury.

A more serious defect in the panel's analysis that focuses

merely on jury size is that it ignores the rationale of Rule

24(c), which is te protect the properly constituted jury from

contact with an unauthorized person whose influence cannot be

ascertained. Mandatory dismissal of alternates before delibera-

tion is the mechanism for assuring the integrity of jury deli-

berations. A further indication that the focus of the Federal

Rules is not on jury size for its own sake is that Rule 23(b)

provides for juries of less than twelve. When Rule 23(b) was

revised, Congress explicitly rejected the alternative of per-

matting alternates to sit with a deliberating jury until sub-

stituted. The Advisory Committee Note to Rule 23(b) stated:

nis scheme is likewise attended by

practical difficulties and offends

"the cardinal principle that the de-

liberations of the jury shall remain

private and secret in every case.

United ae v. e

. 2d 8 t ar. ).

The citation in 1983 of Virginia Erection Corp. also establishes

Congress’ determination that Rule 24(c) not be eroded by Williams

v. Florida. Indeed, Walliams v. Florida explicitly stated that

its holding did not preclude Congress or the state legislature

from requiring l2-person juries. 399 U.S. at 103 and 1. 80.

The prior standard equating jury taint with @ prejudicial

The continued viability of the rules of Magee and

Virginie Erection oe that the parties may pulate to 4

jury of more than twelve, has also been repeatedly reaffirmed by

federal circuits after 2 v. + @.G,, United

v. ats: r ~2@ at Vv.

= .2d „ 1058 (2d Cirz.), 8 0 1.

63); e v. mata „ 66 at i 92

e 5 8 Sekt? 4 F.2d 1358; :

ar $29 F.2d at 1 ; Unated States v. „ ’

’ :

181 r. 4 at 72.

violation of Rule 24ic) is also analgous to the standard this

Court applies in other contexts involving the jury's fact-

finding role. Only recently, in Vasquez v. Hillery, $4 U.S.L.W.,

4066, 4070-71 (U.S. Jan. 14, 1986), the Court refused to apply a

harmless error analysis to racial descrimination in grand jury

selection because the error affected the integrity of the jury's

function and “the effect of the viclation cannot be ascertained."

ig. Vasquez additionally noted that the Court similerly pre-

sumed prejudice where the error affected the fact-finding process

and was “hidden from review,” e.g., Tumey v. Ohio, 273 U.S. $10,

535 (1927) (prejudice presumed despite weight of evidence when

judge had pecuniary interest in convicting); Davis v. Georgia,

429 U.S. 122 (1976) (per curiam) (prejudice presumed when juror

exciugec in violation of Witherspoon); and Sheppard v. Maxwell,

364 U.S. 333, 351-52 (1966) (prejudice presumed where pre-trial

publicity tainted trial). id. The clear import of these holdings

as that where, at in petitioner's case, an impermissible

anfluence affects the fact-finding process and public policy

prevents inguiry inte the jurors’ thought processes, pre de is

presumed and a new trial is required.

B. The Panel's Finding that Appe lant Waived a Mardatory

er Rule Is Unw nted

The panel opinion holds that appellant waived his right

under Fed.®.Crim.P. 24ic) to @ jury of no more than 12, despite

the absence in the record of any statement by either defense

counsel or the defendant that appellart himself consented. This

holding departs from prior precedents that a prejudicial vicla-

tion of Rule 24ic) cannot be excused under a doctrine of waiver.

“There is no rule providing that the Court, or the parties, may

Stipulate for a jury of more than twelve, twelve being the magic

-l10<-

number." United States v. Hayutin, supra, 398 F.2d at 950;

United States v. Virginia Erection Corp., supra, 335 . % at %

United States v. Beasley, supra, 464 F.2¢ at 470; United States =

v. Allison, supra, 481 F.2¢ at 472. Accord, United States v.

Jones, supra, 763 F.2d at 523-24 (defendants consent limited to

brief presence but not participation of two alternates).

The panel's holding relies on cases involving findings of

waiver under pre-1963 Rule 23(b) in the absence of any express

consent of the defendant to a verdict by a jury of less than .

twelve. United States v. Vega, 447 F.2¢ 698 (24 Cir. 1971),

C#Et. Gensed, 404 U.S. 1038 (1972); United States v. Spiegel, 604

F.2d 961, 965 (Sth Cir. 1979), cert. denied, 446 U.S. 935 (1960);

Ungted States v. Roby, 592 F.2¢ 406, 408 (8th Cir.) (per curiam),

cert. denied, 442 U.S. 944 (1979); Williams v. United States, 332

F.2¢ 36, 39 (7th Cag. 1964), cert. denied, 379 U.S. 976 (1965);

Horne v. United States, 264 F.2¢ 40 (Sth Cir.), cert. denied, 360

U.S. 934 (1959). Slip op. at 3106-7. These Rule 2101 cases

should not be extended to Rule 24ic) violations for two reasons:

First, Dy its terms, Rule 24(c) is a mandatory rule, United

States v. Jones, supra, 763 F.2¢ at $23; Uv v. Hillard,

Supra, “Ol F.2@ at 1058; Sutherland Stat. Const. $25.04 (1985)

fuse of “shall” indicates mandatory intent). By contrast, both

the prior and currentiy effective Rule 21000 are discretionary

rules, specifically providing for juries of less then twelve. As

the Second Circuit itself has recently stated, “the general

practice of the drafters of the Criminal Rules was to authorize

waiver in express terms whenever waiver of a mandatory require-

ment concerning the jury was to be permatted.” United States v.

Pachay, 711 F.2d 488, 490 (24 Cir. 1993) (unanimity requirement of

Rule 3l(a) mandatory and therefore not waivable). Accord United

States v. Chavis, 719 F.2¢ 46, 48 (24 Cir. 1983). Since waiver

was dot authorized in Rule 24ic), it i8 @ non-weiveble mandatory

requirement.

«lle

Second, the legislative history of Rule 24 indicates that

waiver is not permitted. The drafters of Rule 24¢ic) explicitly

rejected the suggestion that an alternate be permitted tc be

Present during deliberation. L.Orfield, Criminal Procedure Under

the Feserai Rules, $$24:1, 24:2 at 86-98 (1966). The original

Graft of what became Rule 24e provided for discharging alter-

dates after the verdict. Id. at 87. In the course of the next

several Grafts, changes were made with respect to how the

aiternates should be treated, i.e. “subject to call“ (third

Graft) and “under order of the Court" (fourth Graft). zg. at #9.

The sist version stated that the alternate “shall not retire

with the jury.” “This wes to make it clear that an alternate

)VFOr 4S mot to Fretare to the jury room with the regular jury or

when twe.ve regular jurors are in the tury room.* ig. at K. of

Special relevance to petitioner's case is the fact that the

Committee rejected the suggestion of one judge that it “is not

sensible to keep alternate jurors during @ long trial, and then

Gascharge them before the work of the very is completed.* ig. at

96.

Ever assuming that the mandatory requirement of Rule 241

-4(c) 28 waivable, the circuits are evenly divided on whether

waiver iS permissible without the defendant's personal consent.

Tne Second, Fifth, Seventh, and Eighth Circuits permit waiver

without the defendant's express consent. Unated States v. Vegas.

Supra. 44° F.2¢ 698; Unated States v. Spiegel. supra, 604 F.2¢

at 965; United States v. Roby, supra, $92 F.2¢ at 408 Silliams vw.

nated States, supra, 332 F.2¢ at 39. However, the Siath, Ninth,

Tenth, and D.C. Carcuits require the defendant's personel assent.

Unated States v. Taylor, 498 F.2¢ 390 (6th Cir. 1976); United

States v. Guerrero-Peraitsa, 446 F.2¢ 874 (9th Cir. 1971). United

States v. Neal, 692 F.2d 1296, 1308 (10th Car. 1982); United

States v. Ricks, 475 F.2¢ 1326 (D.C. Car. 1973). at the very

— 2

least, the standard of waiver for a mandatorily phrased federal

rule should be a high one that ensures that a defendant fully

understands what rights his attorney is giving up in his name.

In sum, the writ should be granted because the panel's

opinion unreasonably departs from prior precedents of the federal

circuits and sets a standard for prejudice from Rule 24(c) vio-

lations that is impossible for a defendant to meet because of the

paramount value society places on the secrecy of jury delibera-

tions. Additionally, the panel opinion incorrectly adopts a

waiver rule based on a discretionary federal rule even though it

is evident from the language of the statute and the legislative

history that Congress did not intend to make Rule 2400)

violations waivable.

-l3-

Il. THE JURY CHARGE ON CONSCIOUS AVOIDANCE OF KNOWLEDGE DILUTED

THE MENS REA REQUIREMENT FOR CONVICTION OF CONSPIRACY AND

WIRE FRAUD.

The panel's holding that it was proper to charge the jury

that petitioner's knowledge of the charged conspiracy's objec-

tives can be proved by evidence that he deliberatly avoided

knowledge of them impermissibly dilutes the mens rea requirement

for conviction of conspiracy.

The sole issue at trial was whether Reed knowingly intended

to participate in Schuler's fraudulent scheme to export chemical

protective suits to Iran and Afghanistan in violation of the

law.” Petitioner could not have had the mental state required

for conviction of the conspiracy and wire fraud count without

actually knowing that the scheme was illegal. It was therefore

wrong to given an instruction on conscious avoidance of knowledge

that diluted the mental state required for conviction by permit-

ting the jury to convict petitioner if it found only that he

deliberately avoided actual knowledge.

Over defense counsel's objection, the District Court gave

the following charge on the conspiracy count:

The Arms Export and Control Act (22 U.S.C. §2778) and the

International Traffic in Arms Regulations (22 C. F. R. §§121-30)

govern the commercial export of designated arms and munitions.

Protective apparel and equipment designed for use with toxolo-

gical agents and equipment are on the Munitions List. 22 C.F.R.

$121.0l(c). Persons who wish to export arms from the United

States must first register with the State Department's Office of

Munitions Control and obtain an export license for each shipment

abroad. 22 C. F. R. 5566, 122, 123.

Licenses are granted or withheld on the basis of a number of

considerations, principally the foreign policy of the United

States toward the country that is the recipient of the arms.

22 C. F. R. §123.05.

The regulations make it unlawful to export articles on the

Munitions List without first obtaining the required license and

also prohibit the use of any false statements on the documents

required to obtain license approval for export. 22 C. F. R. §§127.

01. 127.02.

Nonetheless, to establish the essential

element of guilty knowledge, it is not ne-

cessary for the Government to prove to a

certainty that the defendant knew that the

suits were headed for an illegal destina-

tion. It is enough that the Government

proves beyond a reasonable doubt that the

defendant was aware of a high probability

of an illegal destination. If the Govern-

ment proves this awareness and shows the

Gefendant deliberately refused to learn

the actual facts, then the Government has

proven the element of guilty knowledge.

A. Conscious avoidance of —— dÄ——

the mental state of agreement r

This charge was particularly prejudicial in petitioner's

case because it eased the Government's burden of proving the

extremely high culpable mental state required for conspiracy to

violate the Arms Export Control Act. The Government had to prove

that the defendant agreed and speca@ically intended to export

without a license particular articles restricted by the Munitions

List. United States v. Wieschenberg, 604 F.2d 236, 331 (Sth Cir.

1979); United States v. Lizarraga-Lizarraga, $41 F.3d 826 (9th

Cir. 1976) (conviction reversed because of failure to give spe-

cific intent charge). The court in Lizarraga-Lizarraga explained

that the reason for this specific intent requirement was that

unlike those substances generally known to be controlled by the

Government, such as heroin, the items on the Munitions List might

be exported innocently. Therefore, a voluntary, intentional vio-

lation of a known duty was required for culpability. Id. at 628.

See also United States v. Bailey, 444 U.S. 394, 405 (1980) (con-

Spiracy requires a “heightened mental state").

The impact of the conscious avoidance instruction was to

permit the jury to convict petitioner by piling unsupported

inference upon unsupported inference. First, the jurors were

permitted to infer knowledge from “deliberate refusal to learn

the actual facts.” Then on the basis of this deliberate refusal

to learn the facts, they were permitted to infer that petitioner

218

knowingly agreed to join a conspiracy, knowing that its purpose

was to export chemical protective suits on the Munitions List and

knowing that the required export license could not be legally

obtained. Finally, from the lack of knowledge, the jurors were

permitted to infer Reed's intent to violate the law.

Moreover, the inferences permitted by the conscicus avoid-

ance instruction were not only illogical, but inconsistent as

well. The notion of avoiding knowledge is inconsistent with the

conspiracy requirements of agreement and specific intent. United

States v. Ciambrone, 787 F.2d 7994, 810 (24 Cir. 1986); United

States v. Mankani, 738 F. 2d 538 (2d Cir. 1964). As the Second

Carcuit stated in Ciambrone,

Membership in a conspiracy cannot be

proven By conscicus avoidance, since

the requisite mental state for con-

Spirecy is intent. Conscicus avoid-

ance of participating in a conspira-

Cy anc agreeing to be a member of a

conspiracy are mutually exclusive

concepts. Id. at 610.

To paraphrase Ciambrone, how could petitioner conscicusly avoid

learring about the fraudulent Practices contemplated in shippi

the chemical protective suits to an illegal destinaticn and yet

agree that the deal be concluded? Similarly if petitioner con-

Sciocusiy avoided learning about the secret agreement to violate

the Arms Export Control Act, how could he manifest the reguisite

antent to join that agreement? To ask the questions is to state

the answers.

Nevertheless, the panel in petitioner's case accepted the

sogac of Mankani and Ciambrone but found that appellant's

reiiance on Mankani was misplaced:

In Mankani, the Court rejected the

Government's argument that a defen-

dant could become a member of a con-

Spiracy By consciously avoiding per-

tacapeting in it. Where, as here,

the defendant has become a member of

@® gerinnt undertaking, he cannot avoid

responsibility for its unlawful acts

by closing his eyes to what is readily

apparent. Appendix B, Slip. op. at

3108 «

The panel appears to be making a distinction between knowing

participation or membership in the scheme charged and some know- 2

ledge of the unlawful aims and objectives of the scheme. See

Unated States v. Lanza, 790 F.2d 1015 (2d Cir. 1986). This die-

tinction does not make sense because it is meaningless to Say

that a person knowingly belongs to a conspiracy unless he knows

of ats unlawful aims.

8. Conscious avoidance of knowledge is inconsistent with

the mental state of specific intent to defraud reguired

in wire fraud.

The conscious avoidance instruction also diluted the mens

rea requirement for the substantive offense of wire fraud. To

prove the substantive crime of wire fraud, the Government must

establish beyond a reasonable doubt a specific intent to defraud.

United States v. Widgery, 636 r. 2d 200, 202 (8th Cir. 1980) (mail

and wire fraud); United States v. Gelb, 700 F.24 975, 879 12d

Sir.), cert. denied, 104 S.Ct. 167 (1983) (mail fraud). Just as

it as illogical to infer agreement from conscious avoidance of

knowledge, so it is equally illogical for someone consciously to

avoid learning that a scheme is fraudulent and at the same time

be guilty of knowingly devising or participating in the same

scheme,

CONCLUSION

For the foregoing reasons the writ should issue.

Respectfully submitted,

HENRIETTE D. HOFFMAN

PHYJIS SKLOOT BAMBERGER

The Legal Aid Society

Federal Defender Services Unit

531 United States Courthouse

Foley Square

New York, New York 10007

Tel. No.: (212) 732-2971

Attorney for the Petitioner.

Dated: New York, New York

August 1, 1966

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD Copy

AT THE TIME OF FILMING, IF AND WHEN A

BSTTER COPY CAN BE OBTAINED, A NEW FIQGHE

WILL BE ISSUED.

At a stated Term of the United States Court of for the

egg elds rg geg ee be N

fifth day of

one thousand nine hundred and eighty-six

Present: HON. WILFRED FEINBERG,

CHIEF JUDCE,

HON. ELLSWORTH A. VAN GRAAFEILAND,

HON. RALPH K. WINTER,

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee. :

v. Docket No. 85-1745

JOHN REED,

Defendant-Appellant.

— — <

Appeal from the United States District Court for the strict

of Conmecticut

This cause came on to be heard on the transcript of rgeore

trom the United States District Court for the District of

ommecticut. and was argued by counsel 1

N CONSIDERATION WHEREOF. it is now hereby ordered, ‘adjudged

anc decreed that the Judgment of said District Court be end it

hereby is affirmed in accordance with the opinion of thié court.

ELAINE B GOLDSMITH.

ler

Chueh Yrachee

By: Ecward J verdero.

Deputy Clerk

UNITED STATES COL RT OF APPEALS

Foe THE SECOND Cc

—— —

e- Mugu: Term i

(Argued January 7. 1086 Decided Mav * eee)

Doche: No §* i 2a"

—

UNITED STATES OF AVEBice

Ar ies

— —

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—

1105

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Lene cn Deparomen: of Justice,

Washington, DC (Stanley M Teardy,

dy) US An’). and Witham 1. Shockiey,

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cul. on the Brel), for Aer

— 2 —

Ceres Cee Judpe

Joe Reed appeals from d judgment of the Unnee

Set Desiree: Court for the Distnc: of Connecticur

comcung appelan: afver @ jury tral Before Judge Egin-

tor on one coun of eure fraud IF USC § 1343, and

OMe COLP Of COMSPiTacy to pott arucles on the Unned

Sat Munnom Li endes a heense from the Depari.

mer of Siete and with the use of false export documents.

eScan ene te) We

dee ter te, from Re role d d muddle

dong“ together proopective tees and este.

e export: 60 ben chemica! warfare provecinve

tc ber Because the suns are clawified a Gefense

it or the U ee date Menton List, see 22 C FR

e EAPOT „ eres ON!) Bh Prior approve’

Der der of Let Sine 1980. the eee

t ee t© gram export boense: for the shir

Scenes det to bran See Arms Eapor: and

mire As oe USC §2°S) of deen

by persons of the Jeet fen Deducing from thy the

enen nor De the actual cer for the suits th:

selier alerved the Unned ee, Cusiom: Service A Cus

tom: Agent, Posing a the seller's „rot manager imore

ered elt une the scheme and garhered the ev iden c

tha’ formed the Bas for Reed's indicumen’ end subse

Quen corn,

Appeiian: comended @ tra’ thar he Gd no: brow the

suits whumaiels were denne for bran Teo see

ten bee however tha they had told Reed while beg

trons for the sale were un progress thar the deal was nc

leg welt bn et the Governmen: miroduced e.

Gence tha appellan: hed made several prior offers

procure various Gefense nem mm wiolation of impor

@xpor! lees Both to the parvcupants of the ena dee

anc te others Dp Re charge to the puts the tra’ pods

Gee & CONS. eee Sr OrSarce Metuchen OB eel @ 0

"« 4 * ‘ec ° o ¢ * se *

Ne tee e« "Ow" @ „6 &* 0 „1.

0 „„ ' „ e * owe .

eee. s wes or: Meedt: t «© 0

e . ' e° «4 we & Greree -#£ —

‘te ere @.* „„ ender @e Geare « e*a’? *

' * & : ih Gowrie @ „ 06

9 * ‘ N . o er ws? *

* . 7 „ £ t „ owre *

* —

eco OM the green wen, element of the crame Of

conspiracy

Prior to charging the jury the trial pudpe proposed to

counse! for Both side, tha the single ahernate oe be

es Lo dees and belgien the verdict since

he had “stuck through” the sie-week proceeding Both

sides agreed to the judge's proposel, under which all

Ihiri@en yurors would have tc relurn e unanimous verde

Se three days of Geliberanon. the thirteen-man jury

relurned @ unanimous vers of guilty On Both counts

Applian eee cor-ennen or appeal is that, m

submitting Des case to @ ee mar jury, the @rstrec!

cour! soleted Fed R Crm BP 246i), which requires 5

tha’) Cour! te Gischarge unneeded shernate purors prior to

the time the jury commence. ms Gelberations Appelien:

coniends thar Rule 24 gave hum the absolute nigh: to be

treed Dy @ jury Of NO More than twelve and that th» right

could nor be waved We duagree

In suppor! of his conte or appellant ene, derer,

premised on the forme: widespread assumpuon tha: the

Constitution required tra’ t e jury of teehee See eg.

Leet Store: + Maver Wt F 3d O44, O90 (26 Cir 5.

cor dened. WLS 8) 11668) However m Bier

+ Forme WELLS 8 116) the Supreme Cour held”

tha “the fac the the purse @ common lee eas com pose?

of precise’) 12 » Nenne er en and refused to

moerpre’ the Sith Ameng ter m such e Manne’ @ te

G).\ate the precese here tha’ car crete 6 puts Je

# 102-0? by follows the a volar of Rule 2 oe

ho feguire feversa Per se amoen’ & showing Of prenudice

tried Sees Jone et enn 823 038 Cw cor

Gerad We S Cr dee ciety, Cais Sree: » Wigs

of 8 jury Of thirveer meet of teehee” Stow s Corns.

eo Vet Je lee teers,

* = i spre W Jobrsors Lowers

LS S48 BP 6162) wm Shieh the Cour upheld th

ert enge s tor erte Of teten Bo fine Mar Maio”

„ sore Of the puts Justue Whee sad

O course the eee proce’ could er &

tegen & More ceria if Hm had corm vmeed a 1:

jurors eee Of Only fone H would have Deer ever

more compelling Mn had Beer required to coms in.e

end hed. wm fas. cor -moed 34 o % juror

Ir Balwe + George O°. S$ 22) 24 118) Pownce

Ba.orur sad

Sates wude suger the’ He ent Of cor

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A g? whe ered Of ¢ ry gg tere rea *

98 7 eres. e * 6 Den 9

5 ec att es ite fF U oc.’ 9 „

Appellan neve: hae commended. ewher m the dene

cour! OF mm the Court. ther he personally d nov commen

e the tereenman pene! The sole Comienion of his

appt ale counsel » the “Reed Ge nov agree oF the

recone to e ID-persom gus” Ths comentior mus .

‘wees wr the hgh: of the generals eccoped FP Opostior

the the lew ver» the ger of he chen Onc Dis staremen.

OS TEP NET a LOM oe Cour! mar Be Bccemed By mh

coe" Peer’ Of showmg of Bed fon? & Gow Meg ugernce

See Lowed Swe ' e “i 8 2¢ 2 * e Cr

„er ee oot een Ce

er Ban.) There ore numerous carts otic? how

"ee PeTvore colleges need so whe place de ster the

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vere & 6 teevemar prs See og. Lawed Sree

bepe @2° 026 9 12 Ce 18) cor Gerad #8 S$

* 182) Leer See e Ga blew @*

“Cer 19°C. oF Gewese os LS 99 (1960) Cave

* cer) Grow TN

LS 9611965) Morne + Unwed Seem. 266 F De 0 0%

— ee WEL S 934 (1999) dee severa’

fe ut te record appelian + persone’ auen ee erro: 1:

Sow + Bot wepre. SESE & OF The 0 376

te Oe comerved Rowerve e oF eee c

ih # 7. ees wer euere Ae ec e ee 17

irwe Seow enen 465 oe Cer + cer:

COT HENS u Ue Meas of sary seleswer Proug*iou’

terne pore Of tee +e @& The Be ote fOr

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& Greet for te fort Wad or oF OF Bo. bass

+ OP. 0". te ep eatwr Es Me Krovedus eee

Posed x Ox cen

71415

,ereF

Relying on this Court's decision in United Stole v.

Monkon, 738 F.2d S38 (26 cu 1984), appellant abso

comends that the district court erred in ins charge on

CONSCIOUS BVOIdance This rehance is misplaced Jn

Monkon:, the Court rejected the Government's argumen:

tha! 8 defendant could become a member of 8 conspiracy

Dy CONSCIOUS!) BLOIdiNg Paricipanion in it. Where, as

here, the defendan: has become a member of 6 yoni

undertaking. he cannot avoid responsibility for its unlaw.

ful acts by closing his eves to what is readily apparent

The evidence presenied at tral was sufficient 10 warrania

CONSCIOUS a@roidance charge concerning appellant's

knowledge thay the suits’ ulumate destinauion was har

See Ce Srotes ' Mohobur, 624 I 20 1140, 184 20

Cir 1980)

Appeliant’s fina! argument as tha! the tria! judge erred

in admitting evidence that appelian: offered to procure

other defense items mm violanon of Cx por! restrictions

This evidence was relevan: to appellant's knowledge of

IMPOTL-EAPor! testtihons On defense nems and his will-

INFMEss tO violate those restrictions, and the tria! judge

Twice Cautvones the jury abou: the hmued purpose for

which the evidence was admotied A trial judge's ruling

the: the probate value of similar acts evidence ou:

weighs the tie Of unfair prepudice to the defendant u

no be reversed deer @ clea’ showing of abuse of

Giscreuior Cnued Hate Me- "86 F 2d O98 100

(oo Cir 1988) There was no such abuse ir the insan:

tet

The pudgmen: of the distinc: court as affirmed

Noe

* „ „ „.

* BL PRES: IN cr S&S NY be” ee ene

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse, in the City of New York, om the 19th day of June

one thousand nine hundred and eighty- six.

UNITED STATES OF AMERICA,

Appellee,

Docket No, 85-1245

JOHN REED

Defendant-Appellant. |

A petition for rehearing containing a suggestion that the

action de reheard in banc having been filed herein by counsel for the

Defendant-appellant, John Reed

“pon consideration by the panel that heard the appeal, it is

orderec that said petition for rehearing is DENIED.

It zs further noted that the suggestion for rehearing in

oanc “as Deen transmutted to the judges of the court in regular

„ede Service and to any other ee that heard the appeal and

‘nat no Such judge has requested that a vote be taken thereon.

OPPOSITION

BRIEF

. QUESTIONS PRESENTED

1. Whether petitioner's conviction should be reversed

because on alternate juror participated in the jury's

deliberations and werdiet, so that petitioner was unanimously

convicted by « jury of 13, @ procedure to which defense counse)

agreed.

>. Whether the district court erred in instructing the jury

that petitioner could be convicted of conspirecy to export

chemical warfare protective suits without obteining @ valid

License from the Department of State if it concluded that he nad

deliberately refused to learn the identity of the country to

whieh the protective suits that de conspired to export witmout @

a.icd license were being sen"

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

ON PETITION FOR A WRIT OF CERTIORAR! TO

TWE UNITED STATES COURT OF APPEALS

ros THE SECOND CiPCUIT

tr FOR THE UNITED STATES IN OPPOSITION

OPIKION BELOS

The cpitior ef the court of eppeslis (Pet. App. 9310.-85.08

ss reported ot 790 T.20 208.

JVB SSICTION

The ju@erent of the court of eppesis was erterec or Say 5.

1966. A petition for rehearing was denied on Juve 19, 1986. The

petition for @ writ of certiorer: wes filed om August 4, 9#*.

Tre jurisdiction of this Co rt is imvosed under 28 U.S.C.

~2946i)).

STATEPEN:

after @ jury trial in the United Stetes District Court for

the District of Connecticut. petitioner was convicted on twe

counts cherging conspirecy to eaport erticies on the United

Stetes Munitions List without obtaining @ license from the

Department of State, to use export documents containing false

statements ifn connection with those items, end to defraud the

United stetes by impairing the foreign policy of this Country. &”

vieletion of 16 U.6.C. i % 22 U.6.C. ent and ich. ane

wire fraud, in wicletion of 18 U.S.C. 134). Ge was sentenced to

two years’ imprisonment. The court of eppesis affirmed (Pet.

App. 83101-83108).

. The en dene at trial, the sufficiercy of which is set

ie Giepete, showed that in 1964 petitioner ected os « aiéélenen,

bringing together prospective buyers end « seller, in « scheme to

export 400,000 chemical warfare protective suits without « velié

licensee. These suits, which were designed to protect persons

from chemicals and serve gas. ere classified as Gefense articles

on the Gnited States Munitions List. 22 C.f.8. 121.1, end require

prior epprowel from the Department of State for export. Seceuse

the State Department would not euthorise export directiy to tes.

the Country te which the conspiretors intended to se.l the

protective Suits, petitioner end his co-conspiretors plenred to

procure falsified certificates thet listed Itely es the fine.

Seetination of the protective suits. Pet. App. 83102-83103.

Petitioner firet put co-conmepireter Bere Schuler. 6

Prac „ „„ Sroeer whe was etterpting to locete se_iers

‘he protective G..te. in tower with or Eng.ie? Supp.+er. Tre

nase {ror thet suppiter fell through. Sowever, wher te

purchasers rejected his protective suits Because they ree Deer

made in lereel (Tr. 625-628). SePuler comtected petitioner

e telling hie thet fis Buyers wanted American-made suits

(Tr. 629). Petitioner teleproned „ Connecticut supplier. Séverd

Stolert. if Mey 1964 end told hie that he seeded 600,000 higr

guslity protective euits (4/11/05 Tr. T+i2). 2 ‘The evsdence

showed thet petitioner anew thet the Stete Department would not

pertit such suits to be shipped without er end user certificate

stating thet the purchaser wes on approved country (Tr. @09-81)).

Stolerse slerted the United States Customs Service end

rode undgercover Customs Agent Stever Crogen, posing os

— ———

Soest of the trial trenecript wes consecutively pegineted. &

lew wolumes were seperately pegineted, however. and we ident. ty

ther by their Gete.

EE — aed

thet the protective suits would Be sent to tei. which would be

the courtry listed on the end user certificate. Tr. 63-68.

Schuler seid thet he hed peiéd @ $12 wi lison Bribe to the Itelian

Defense Sinistry to secure its cooperetion (GEGA @-i2). In @

Subsequert taped conversation Schuler told Stclere thet

petitioner ie not now that the protective suits were to Be sent

to Iran. Sowever, et trial Schuler testified thet petitioner did

anow thet the suits were to Be sent to tes. end thet Se told

Crogen thet petitioner ele sot emow Seceuse he sensed that Crogan

wes concerned thet toc Sety people «ere~ the Geteilis of the

trensection (Tr. 660-66.

By July 30 tee irer.et Geel Bes epperert.; teller tRrouge.

ir @ taped te.epmcre corverseticr. petitioner tet cee thet he

ree act @ee.t with Tren.ere tete. ers GcPuler Bed, one

‘nee tte very erratic .. i-Z). Gm August i. GePuser

ee Croger tat fe wes reer OO... the ate te Bi qgneeieter.

2 2e0e7.0°° tee: eee ce.ep@cre ecevereaetic*. er eee resse

nennt thet tte ere §.e7°.°@ tc cere the Ge

428 9 .6te* rtr... ont per.ticter espgreseet 8 pretere:ce

for selling te suits tc tee Aferaer rese.e +G8124 1

2. Petitioner tesed tis Gefense of the clair thet te €:d

fot emow ehtil jete July 1906. efter te Bet pet Semerer it

cortect wit® Steelers. thet the suits were Gestined for Trent end

ter Be . ect ence ottii @41O@-segss*t thet Setsiet sas "Tryst tc

se... te Suits to Afqmaerieter. 7 ite 81S. seStr ett. oes. Sver

pet .tiomer’s ehrection,. the €.6trict ett ssetruected the jerry on

conscious evoidence of the trut®. The cowrt itetructed «Pet.

app. 3303 #.i):

(Tle esteBlish the essertial elewmert of guilty

anowleége. it 16 SOt secessery for the

Gowernment to prove to e certeiety thet the

Getendgaent emew thet the suits were heeded for

oi 112 — Gestinetion. tt is thet the

l :

‘het prong FA ytd, A

proeedility ef ot iliegsl Geetinaticor. If th

Gowernmme tt prowes this seereress e7¢ shous "

Getendert Ge. iterate.» refused to s@ere the

ectsel fects. ther the Goveramert Res pt ove™

te element of guilty ero~wlLedge.

3. On the last day of trial, the district court suggested

that a single alternate juror whe sat throughout the six-week

triel be allowed to participate in the deliberations. According

to the court's proposal, the jury's verdict would have to

represent the unanimous view of all 13 jurors. The court also

stated that the alternate juror would not be allowed to

participate in the deliberations unless both parties agreed.

After a break, petitioner's trial attorney informed the district

court that he and the prosecutor agreed to include the alternate

suror in the G@eliberations. No specific representation as to

petitioner's personal agreement was made. The district court

then instructed the 13 jurors and advised that the verdict had to

be unanimous. Pet. App. B3104, 83106.

4. The court of appeals rejected petitioner's contention

that parties cannot consent to a l3-member jury and that, in any

event, he did mot consent personally. The court disapproved of

the @ietrict court's action (Pet. App. B2107) because fred. R.

Pp. 21e requires the district court to discharsce alternate

srors when the jury retires. However, the court noted that in

Williams v. Florida, 399 U.S. 78, 102-103 (1970), chis Court

“held that ‘the fact that the jury at common law was composed of

precisely 12 is a historical accident’ and refused to interpret

the Sixth Amendment in such a manner as to dictate the precise

number that can constitute a jury” (Pet. App. 83104). Therefore,

the court of appeals found that @ violation of Rule 24(c) “does

mot regGuire reversal per se absent a showing cf prejudice” (Pet.

App. 83104). The court found that no prejudice was demonstrated

in this case since it would be difficult to see how

[petitioner] would be prejudiced by the use of a jury of thirteen

instead of twelve’” (Pet. App. B3105 (quoting State v. Cuzick, 85

Wash. 24 146, 148, $30 P. 2d 288, 289 (1975)). Instead, the court

‘decided, petitioner might have benefited because the government

had to convince an additional juror of petitioner's guiit beyond

a reasonable doubt. In any vert, the court concluded, “there is

no likelihood whatever that a thirteen-man jury would convict

more readily than would a twelve-man jury" (Pet. App. B3105-

B3106).

The court of appeals also rejected petitioner's claim that

his attorney's agreement to the l3-member jury was insufficient

to establish a waiver. Instead, the court looked to “the

generally accepted proposition that the lawyer is the agent of

his client and his statements and representations in open court

may be accepted by the court absent a showing of bad faith or

gross negligence” (Pet. App. B3106). The court also noted that

petitioner did not claim on appeal that he dic not assent, Dut

instead claimed only that he did not agree “on the record.“ The

court then held that any error im failing to elicit @ personal

waiver from petitioner was harmless beyond a reasonable Goudt

Tre court of appeals alsc retectesc petitioner s contention

‘mae the @ietrict court erred in isstructing tre fury on

COnNSCcious @voigance cf the tut he Court stated tha

tere, es here. the defernda.t tas become a erte: of «4

undertaking, ne cannot avoid responsibility for its unlawful acts

by closing his eyes to what is readily apparert” (Pet. App.

B3108). It added that the evidence at trial was sufficient tc

warrant the instruction since petitioner contendec that he was

unaware “that the suits’ ultimate destination was iran” (i034.

ARGUMENT

1. Petitioner first challences (Pet. 7-13) the court of

appeals’ refusal to reverse his convict.on because 13 jurors

rather than 12 found him guilty beyond a reasonable doubt.

Review of this issue by this Court is unwarranted.

Petitioner primarily contends (Pet. 7-8) that review is

warranted because the court's decision here conflicts wit” the

decisions of numerous other circuits holding that the presence of

ar alternate juror in the jury room taints the jury's

proceedings. 2/ However, none of the cases on which petitioner

relies involved a juror who became an actual member of the jury

and voted, along with all the other jurors, to convict the

defendant. Thus, in this case, unlike each of the cases on which

petitioner relies, the alternate was not “as any other stranger

to the proceedings” (Unit v. Beasley, 464 F. 2d 468, 469

(10th Cir. 1072)). Rather, the alternate here was an actual

member of the jury and not an unauthorized person whose

participation was not directed at reaching a verdict.

Accordingly, review by this Court is not warranted to resolve a

conflict in the circuits. 3/

Moreover, as the court of appeals explained, most of the

cases on which petitioner relies are “premised on the former

“.Gespreac assumption that the Constitution required trial by a

uty of twelve” (Pet. App. B3104). The basis for those decisions

was United States v. Virginia Erection Corporation, 335 F. 20 668,

oem Cir. 1964), in which the court steted that the 10

contemp.atec dy Article Iii, Section 2, and the Sixth

Amendment 18 @ trig. Dy @ jury Of twelve persons, neither more

mor jess” (emphasis in original). However, as the court below

found, the underpinning of Virginia Erection Corporation was

removed by this Court's subsequent decision in Williams v.

Fiorida that @ jury of 12 persons is not required by the

2 Petitioner also contends that the decision here conflicts

with @ number of other decisions of the Second Circuit. Review

by this Court is not warranted to resolve an intracircuit

conflict. Wisniewski v. United States, 353 U.S. 901 (1957).

3/ Petitioner's reliance (Pet. 9) on the Advisory Committee Note

to Fed. R. Crim. F. 23(b) disapproving the suggestion that

alternate jurors be sent in to listen to, but not participate in,

the deliberations of the 12 jurors, is inapt. The Advisory

Committee disapproved of the presence of a silent, non-voting

Lith juror during deliberations because it would violate the

“‘cardinal principle that the deliberations of the jury shell

remain private and secret in every case.’ it tat v.

Virginia Erection Corp., 335 F. 2d 868 (4th Cir. : But

rather than allowing @ spectator to observe deliberations, the

court below allowed the i3th juror to participate actively in the

juty process. His presence no more violated the principle of

privacy of deliberation tnan did the presence of the other 12

jurors.

Constitution.

In addition, as the court of appeals concluded, it is clear

that petitioner was not prejudiced dy the presence of the 13th

juror. To the contrary, the government was required to convince

an additional person that petitioner was guilty beyond a

reasonable doubt. As the court of appeals stated, “there is no

likelihood whatever that a thirteen-man jury would convict more

readily than a twelve-man jury” (Pet. App. B2105-B3106).

Petitioner apparertly agreed, and therefore did not object to the

court's proposal that the a.ternate juror join in the jury's

Geliberations. 4

Finally. review of this issue is inappropriate because the

factual situation presented is unlikely to recur. We know of no

other case where a ii-member ‘ury deliberated anc reached 4

unanimous verdict. The edmonition of the court of appeais tha*

“the procedure fcllcwed here stou.d get Be repeated” (Pet. App.

unwarranted.

2. Wor is review by this Court warranted tc consider

petitioner's contention (Pet. 14-17) that the court's instructior

on conscicus avoidance of the truth “diluted the mental state

required for conviction” cof conspiracy 9. at 16). § Read as 4

whole, the jufy snstructions made c.iear that the government was

4/ Petitioner's contention that @ party cannot stipulate *o a

l3-member jury is belied by Fed. R. Crim. P. 23(b), which permits

parties to stipulate to fewer than 12 jurors. If the parties car

Stipulate to fewer than 12 jurors, there is no good reason why

they cannot stipulate to more than 12, particularly since there

is no constitutional significance to the number 12.

3 There is no merit to petitioner's argument (Pet. 17) that the

conscious svol dance of the truth instruction affected his

conviction for wire fraud, since the challenged instruction

plainly fell within the portion of the charge dealing only with

the conspiracy count. Moreover, conscious avoidance of the truth

instructions have been used and approved in mail and wire fraud

cases. Eg United States v. Precision es! Labs, inc., 59)

F.2¢ 434 (22 Cit. 1978); United States v. Slick. 710 F.2d 639,

nied,

642 Mott Cir. 1983), cert. 5 U. 8. 1005 (1984).

required to prove that petitioner specifically intended to

participate in an illegal scheme.

The district court fully instructed the jury on specific

intent as an element of conspiracy. The court instructed the

jury that it could not convict petitioner unless it found, beyond

a reasonable doubt, that petitioner voluntarily and willfully

agreed to participate in the conspiracy charged in the indictment

(Tr. 1460). The court defined “willfully.” instructed the jury

on specific intent, and charged the jury to find that petitioner

knew the essential nature of the conspiracy (Tr. 1460-1462). In

addition, the court instructed that pet.t.oner's mere association

with members of the conspiracy cr mere * of or

acquiescence in the plan without participation was not sufficient

Tr. 1463-1464). Instead, the court ermprasizec that petitioner

could not be convicted unless the jury erte that Re

intentionally joined in the conspiracy “with an understanding of

srlawful character” (Tr. 1464). In short, the entire body of

nstructions maée abundant.y clear that the jury eee: not

ct petitioner unless it was convinced, beyond @ reasonable

joubt, that he intended tc coin in the conspiracy with Senhuler to

export the chemical protective suits in an illegal manner. 6/

Read as a whole, as they must be (United States v. Park, 42:

(1973)), the instructions did not permit the jury to convict

petitioner unless it concluded that he anew that protective suits

were mot going to be sent to Italy, the country to be listed on

the end user certificate. Petitioner based his defense on the

claim that de did mot know that the protective suits were

gest ned for Iran or that, after the transaction with Iran feli

6 Petitioner also errs in arguing (Pet. 15) that the challenged

Instruction “permit(ted) the jury to convict petitioner by piling

unsupported inference upon unsupported inference.” To the

contrary, the court specifically instructed the jury that, while

it could @raw reasonable inferences from the evidence, it could

not draw one inference from another, but rather was confined tc

drawing but one inference from @ particular set of facts (Tr.

3448).

through, that Schuler was attempting to arrange a deal with

Afghanistan. Petitioner repeats that contention here, stating

thet the “sole issue” is whether he “knowingly intended to

participate in Schuler's fraudulent scheme to export chemical

protective suits to Iran and Afghanista™ in violation of the law”

(Pet. 14 (emphasis added)). However, the government did not have

to show that petitioner knew where the protective suits were to

be sent, Dut instead had to show only thet the purpose cf the

scheme was te export without @ valid license items that are

restricted by the Munitions List. United States v. Wieschenberg,

604 F. 20 326, 331 (Sth Cir. 1979); United States v. Lizarraega-

Lizarraga. 54. F. 20 626, 828-829 (9th Cir. 1976). As the court

of appeals concluded (Pet. App. 83108). the challersec

instruction Simply explained that the government Gic not Rave *

prove that petitioner «new the intenced destination of the

protective Suits, whi.e tte other instructions face c.ear that

the government Red tc prove that petitioner enew as fa.se

Gocumentaticn wou.e Be uses im Connection with the tra sa

of ny en, review Sy ens Court is Sot warrertes * re

the fact-bouné issue whether the instructions, read as 4 ee.

imper@issibiy lessened the government's bDurder in this case.

Moreover, there was ebundart evidence that the purpose of

the scheme was to export the 600,900 protective suits ir ar

iileeel manner, anc the evidence am™p.y estad.ishmec tna‘

petitioner was @were cof the legal nature of the scnmete. He

anew that Schuler plennedc tc use an end user certificate

identifying Italy as the ultimate destination of the protective

Suits. The jury was certainly entitied to conclude, from

petitioner's knowlege that the Buyer would not accept protective

Suits made in Israel, that he «new that the suits were ror

Gestined for Italy det were instead destined for the Middle

East. In d tien, it defied belief that Italy would use a

Brazilian middlemar to procure defense materials that its

overnment could nave obtained directly from our government.

And, of course, Iran was involved in a war with Irag in 1986 and

Afghan rebels were fighting Soviet occupiers, and it was widely

— that the combatants in both conflicts were using

chemical weaponry, while there was no apparent reason why Italy

would want 600,000 chemical warfare protective suits.

Accordingly. it was clear beyond dowbt that petitioner knew that

the protective suits were not going to be sent to Italy, and he

must have suspected that they were destined for Iran, Iraq, of

Afgnanistar.

CONCLUSION

The petit zer for a writ of certiorari should be denied.

CHABLES FRIED

Sclicitcr Genera.

SILLIAR F. WELD

Ass.stat*t Attorney Genera.

SARA CRISCITELL:

Ac corne

SUPREME COURT OF THE UNITED STATES

JOHN REED « UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Ne ™-S211 Deewded Newember 10 18

The petition for a writ of certiorari is dened.

Chatman, 54 F 2d 1368 (CAS 197%) (explaining Virgona Erection

as establishing a per se rule of plain error in cases where Rule 24)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.