Reply Brief — United States v. Olano

No. 91-1306

mal

In the Supreme Court of the Ghuted Sfates

OCTOBER TERM, 199]

LUNITED STATES O}

1 4 RI7 OF} ‘ le i :

ITED STATES COURT O}

FOR THE NINTH CIRCUIT?

Department of Ju

Wasi notor pe

;

~ ia

TABLE OF AUTHORITIES

(1947)

Bake ry Sale 5 Driry re Local / Tr

U.S. 487 (1948)

Carr v. Zaja, 283 U.S. 52 (1931

Colegrove v. Battin, 413 U.S. 149 (1973)

Duncan v. Louisiana, 391 U.S. 145 (1968)

Johnson v. Duck worth, 650 F.2d 122 (7th Cir. 1981)

Vancusi v. Stubbs. 408 U.S. 204 (1972)

Patton v. United States. 281 U.S. 276 (1980)

Tanner v. United States. 4883 U.S. 107 (1987)

Taylor v. Illinois, 484 U.S. 400 (1988)

l/nited States v. Allison, 481 F.2d 168, aff'd after remand.

87 F.2d 339 (5th Cir. 1978). cert denied, 416 U.S. 982

(1974)

l/nited States v. Dumas, 658 F 2d 411 (Sth Cir 1981). cert

denied, 455 U.S. 990 (1982)

nited States v. Essex, 734 F.2d 832 (D.C. Cir. 1984)

‘nited States v. Fajardo, 787 F.2d 1523 (11th Cir. 1986)

nited States v. Fisher, 912 F.2d 728 (4th Cir. 1990).

denied, 111 S. Ct. 2019 (1991)

‘nited States v. Jones, 763 F.2d 518 (2d Cir

174 U.S. 981 (1985)

nited States v Phillips 664 F 2d 971

denied, 457 U.S. 1136 (1982)

‘nited States v. R.L.C., No. 90-1577 (Mar. 24, 1992)

‘nited States \ Roby, 592 F.2d 406 (8th Cir.). cert

142 U.S. 944 (1979)

nited States v. Sn

denied, 424 |

nited States v. Smegel, 604 F 2d 961

denied, 446 U.S. 935 (1980)

Cases

Un

Un

lin

Wil

( ‘onsti

ited States v

ited States v

Continued

ted State Ss ¥V Villamonte Marquez, 162 U ~ 579 { 1983)

Watson, 669 F.2d 1374 (11th Cir. 1982)

Young, 470 U.S. 1 (1985)

hams v. Florida, 399 U.S. 78 (1970)

tution and rules

US. ¢ onst

Fed

Fed

Miscellaneou $

Wright, Federal Pract

(14964

(1982 &

ZU

Amend. VI

Amend. VII

R. Crim. P

Rule 23(b)

Rule 24(c)

R. Evid. 606(b)

re and Proce dure

In the Supreme Court of the Giuted States

OCTOBER TERM, 199]

No. 91-1306

UNITED STATES OF AMERICA. PETITIONER

Guy W. OLANO, JR. AND RAYMOND M. GRAY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

1. Respondent Gray contends (Br. in Opp. 6-8) that

this case is moot because the government did not ob

tain a stay of the court of appeals’ mandate. That con

tention is contrary to the firmly settled principle that

the issuance of a court of appeals’ mandate has no

effect on the power of this Court to review the court

of appeals’ judgment. See, e.g., United States \

R.L.C., No. 90-1577 (Mar. 24, 1992), slip op. 3; United

States v. Villamonte-Marquez, 462 U.S. 579, 581-582

n.2 (1983): Mancusi v. Stubbs, 408 U.S. 204, 206-207

(1972); Bakery Sales Drivers Local Union No. 33 \

Wagshal, 333 U.S. 437, 442 (1948); Aetna Casualty &

Surety Co. v. Flowers. 330 U.S. 464, 467 (1947): Carr

v. Zaja, 283 U.S. 52, 53 (1931). The reason for that

Pe

rule is that a reversal of the judgment of a lower

(1)

court by this Court serves to vacate the lower court’s

judgment and to nullify what was done under the

mandate embodying the erroneous judgment. Villa-

monte-Marquez, 462 U.S. at 581-582 n.2. Accordingly,

the issuance of the mandate by the court of appeals

does not moot this case.’

2. Respondent Olano asserts (Br. in Opp. 3) that

“at no time * * * did my counsel * * * consent” to allow

the alternate jurors to observe the jury deliberations.

Similarly, Gray asserts (Br. in Opp. 11) that “(t]he

record simply does not support” the court of appeals’

assumption that counsel for one of the defendants

consented to that procedure on behalf of all defen-

dants. In fact, the record shows that counsel for all

the defendants agreed to allow the alternates to be

present during the deliberations.

When the district court suggested the possibility of

allowing the alternates to observe the deliberations,

it stated that “if there is even one person who doesn’t

like it we won't do it. * * * [U Jnless it’s something you

all agree to, it’s not worth your spending time has-

sling about.” Pet. App. 5a n.5; Tr. 10,400. Counsel for

one of the defendants initially objected to the proce

dure. Pet. App. 5a. The next day, however, the district

court addressed counsel for all the defendants as fo!

lows:

THE COURT: Do I understand that the defen

dants now—it’s hard to keep up with you, counsel

Gray notes (Br. in Opp. 8 n.5) that in this case, unlike |

lamonte-Marquez, the indictment has not been dismissed. That

difference is irrelevant. A decision by this Court reversing the

court of appeals will vacate the court of appeals’ judgment and

nullify any actions taken under the court of appeals’ mandate

In any event, the district court has stayed further proceedings

pending the disposition of the petition See Rr in Upp 7

**

ow

This is sort of a day by day—but that’s all right.

You do all agree that all fourteen deliberate?

Okay. Do you want me to instruct the two alter

nates not to participate in deliberation?

MR. KELLOGG: That’s what I was on my feet

to say. It’s my understanding that the con

versation was the two alternates go back there

instructed that they are not to take part in any

fashion in the deliberations.

Pet. App. 6a (emphasis added).

Although Gray characterizes the district court’s

statement as “inexplicablie],” Br. in Opp. 10, it is eas

ily explained. The district court’s statement, and def

ense counsel's response, clearly show that counsel for

all the defendants agreed that the alternates would be

permitted to observe, but not participate in, the delib

erations

In any event, the court of appeals decided this case

on the assumption “that co-defendant’s counsel spoke

as counsel for all defendants on this issue.” Pet. App

27a. The court held that, despite defense counsels’

consent, respondents: convictions nevertheless had t

be reversed. /bid. The government is seeking review

of that erroneous legal ruling

‘sTray rre I ntend b I 2 ’ i it

‘ n for a wr i certiorari re f n adel f f

eT 7 w Line LILeTrnales if Line iY ? (pur "

el nis tha ia ' of Fed. R. Crim. P. 24 nouid

t be subj i rule of automatic reversible error. W

cie ve hat principik ippues whetne r not rye lefendar ha

sented tne ition. The fa tna he defense did

OL | viola | I ‘ and indeed nse ed

r’é otrne ~ uT irgume!l nu oOo ? cle re

‘ ‘

3. Both respondents contend that the court of

appeals’ decision in this case does not conflict with

any decision of another court of appeals. That con-

tention is unpersuasive.

Olano contends (Br. in Opp. 7) that the cases cited

in our petition are distinguishable because one of the

alternates in this case “did not stay with the jury

throughout their deliberations, but instead after one

day of deliberations broke up the sanctity of the jury

room by leaving and being excused.” Olano asserts

that in all of the cases we cited “the alternates

remained with the twelve jurors until a decision was

rendered.” /bid. It is not clear why that distinction

should matter, but in any event Olano’s assertion

about the other cases is incorrect. Our petition cites

several cases in which courts of appeals declined to

apply a rule of automatic reversible error even though

the alternates did not remain with the jury

throughout the deliberations. See Pet. 7-9 (citing

United States v. Jones. 768 F.2d 518, 523 (2d Cir.)

(alternates retired with jury to observe deliberations

but were discharged before deliberations were

completed), cert. denied, 474 U.S. 981 (1985); United

States v. Watson, 669 F.2d 1374 (11th Cir. 1982)

(alternate retired with jury and was elected foreman,

but was discharged before deliberations were

completed); United States v. Phillips, 664 F.2d 971

(5th Cir. 1981) (alternate replaced juror after

deliberations began), cert. denied, 457 U.S. 1136

(1982).

There is no force to Olano’s argument (Br. in Opp. 8-9

that the Constitution requires that a jury consist of 12 persons

and only 12. In Williams v. Florida, 399 U.S. 78 (1970), the

~

Court rejected the contention that the Sixth Amendment guar

antee of a trial by jury necessarily requires a trial by exactly 1%

persons. The Court concluded that the fact that a jury con

Gray contends (Br. in Opp. 12-15) that we have

“manufactured” a circuit conflict by lumping this

case together with cases involving other types of vio-

lations of Fed. R. Crim. P. 24(c) that do not result in a

violation of the secrecy of jury deliberations, such as

allowing an alternate to participate in the delibera-

tions as a thirteenth juror, or substituting an alter-

nate juror for a regular juror after deliberations have

begun. But as Gray himself concedes (Br. in Opp. 15

n.8), our petition cites cases involving precisely the

same type of violation that occurred in this case, in

which the court of appeals nevertheless refused to

apply a rule of automatic reversible error. See United

States v. Jones, supra; United States v. Watson, su-

pra. See also Johnson v. Duckworth, 650 F.2d 122 (7th

Cir. 1981); United States v. Allison, 481 F.2d 468 (au-

tomatic reversal not required where alternate was

instructed to observe but not participate in delib-

erations), aff'd after remand, 487 F.2d 339 (5th Cir.

1973), cert. denied, 416 U.S. 982 (1974). Gray attempts

to distinguish Jones and Watson on the ground that

the alternate was in the jury room for only an hour

and a half in one case, and 35 minutes in the other.

But he provides no reason to create a rule of auto

matic reversal only if the alternate observes all of the

jury's deliberations. Nor is there any force to his

contention (Br. in Opp. 13) that the violation in this

case was “different, and more prejudicial, than the

other types of Rule 24(c) error.” An alternate who

actually participates in the jury’s deliberations and

;

sisted of 12 members at common law “is a hist

> > >

;

orical acciden

wholly without significance ‘except to mystics.’” /d. at

102 (quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968

Harlan, J., dissenting)). See also Colegrove v. Battin, 413 U.S

149 (1973) (Seventh Amendment right to jury trial does not en

compass a right to a 12-member jury

6

casts a vote for acquittal or conviction is more likely

to prejudice the defendant than an alternate who

silently observes the deliberations. Because the

presence of alternates in the jury room is not

inherently prejudicial to the defendants, there should

be no requirement of automatic reversal in the case of

such an error. .

4. In support of their claim that the error in this

case requires automatic reversal, respondents con-

tend (Olano Br. in Opp. 10-11; Gray Br. in Opp. 16-20)

that the presence of alternates in the jury room may

have subtle effects on the jurors’ deliberations and

that it is difficult or impossible for defendants to

demonstrate those effects. Respondents, however,

overstate both the likelihood of prejudice and the dif-

ficulty of proving it. There is no reason to suppose

that alternate jurors will disregard the court's

instructions not to participate in the deliberations.

Any effects on the jury caused by the silent presence

of the alternates are likely to be quite minor, and are

as likely to favor the defendant as the government. If

a defendant nevertheless believes that he may have

been prejudiced, the district court has authority to

determine “whether any outside influence was im-

properly brought to bear upon any juror.” Fed. R.

Evid. 606(b). See Tanner v. United States, 483 U.S.

107 (1987).*

Even if violations of Fed. R. Crim. P. 24(c) were not

subject to harmless error analysis because of the per

ceived difficulty of proving prejudice, it would not fol-

‘ In an analogous situation, where the district court exer

cises its discretion to substitute an alternate juror for a regular

juror, the defendant is not entitled to reversal absent a showing

of prejudice. United States v Fajardo, 787 F.2d 1523, 1525

(lith Cir. 1986): United States v. Dumas, 658 F.2d 411, 413

(5th Cir. 1981), cert. denied, 455 U.S. 990 (1982)

oe

low that such violations rise to the level of plain

error. The plain error rule protects the process of

adjudication at trial by requiring a defendant to make

his wishes known with respect to a particular ruling,

while at the same time protecting against the risk

that a defendant will be unjustly convicted because of

a serious default on the part of his attorney. The

technical erreur in this case did not approach the type

of “egregious error||” that “seriously affect{[s] the

fairness, integrity or public reputation of judicial

proceedings” or results in a miscarriage of justice.

United States v. Young, 470 U.S. 1, 15 (1985). Accord

ingly, the court of appeals erred in treating the vio

lation in this case as plain error.’

5. Finally, Gray contends (Br. in Opp. 20-24) that

defense counsel cannot waive a defendant's objection

to a violation of Rule 24(c). Gray makes no effort to

Contrary to Olano’s contention (Br. in Opp. 10-11), United

States v. Essex, 734 F.2d 832 (D.C. Cir. 1984), does not support

the proposition that it is “plain error for the trial court to per

mit the alternate juror to retire to the jury room for delibera

tions.” In Essex, a juror failed to appear after jury delibera

tions had been adjourned for the weekend. The court of appeals

concluded that the district court committed plain error by

allowing the remaining 11 members of the jury to continue

deliberations without making any effort to find the missing

juror or determine whether there was any reason to excuse

him. /d. at 834-835

Olano also cites a superseded edition of Professor Wright's

treatise for the proposition that “it is reversible error, even

though the defendant may have consented, to permit an alter

nate to stay with the jury after they have retired to deliber

ate.” Br. in Opp. 9 (quoting 2 C. Wright, Federal Practice and

Procedure § 388, at 52 (1969)). The current version of that

treatise omits that statement and instead discusses the court of

appeais’ decisions that have refused to apply a rule of auto

matic reversal. See 2 C. Wright, Federal Practice and Proc:

dure § 388, at 391 nn.23, 24 (2d ed. 1982 & Supp. 1992 )

8

demonstrate that the technical violation of Fed. R.

Crim. P. 24(c) at issue in this case involved the kind of

basic right that can be waived only by the defendant

himself. Instead, he asserts that the decision to allow

alternates into the jury room was not a matter of trial

tactics because “there is no apparent benefit to be ob-

tained by a defendant from consenting to a violation of

Rule 24(c).” Br. in Opp. 22. But defense counsel might

well conclude that there is a tactical benefit to be

gained from consenting to such a procedure. For ex-

ample, defense counsel might conclude that a larger

jury is less likely to convict than a smaller jury, or

that the alternates in a particular case are likely to

favor the defendant. Defense counsel’s decision to

allow the alternates into the jury room was not the

sort of fundamental trial decision that the defendant

must make personally. See generally Taylor v.

Illinois, 484 U.S. 400, 417-418 (1988).'

Gray also contends (Br. in Opp. 23) that because

“the personal, written consent of the defendant is re-

quired for a jury of less than twelve” under Fed. R.

Crim. P. 23(b), it is “appropriate to require the per-

sonal consent of the defendant to a jury that is subject

to the influence of others during their deliberations.”

In fact, Rule 23(b) does not require the consent of the

defendant if the court finds it necessary to excuse a

juror for cause after the jury has begun deliberations.

In any event, the question in this case is not whether

Olano cites (Br. in Upp. 9) this Court's decision in Pattor

v. United States, 281 U.S. 276 (1930), for the proposition that

only the defendant himself can waive objection to a violation of

Rule 24(c). In Patton, however, the Court concluded that a

waiver of the right to trial by a jury of 12 “in substance

amount(s] to the same thing” as a waiver of the right to trial by

jury. 281 U.S. at 290. The Court subsequently rejected that

view. See Williams v. Florida, 399 U.S. 78. 100-102 (1970)

4

the procedure at trial complied with the requirements

of the Federal Rules of Criminal Procedure, but

whether the violation of Rule 24(c) requires auto

matic reversal. In analogous cases involving technical

violations of Fed. R. Crim. P. 23(b), the courts of ap-

peals have held that reversal is not required absent a

showing of prejudice. See, e.g., United States v. Fish

er, 912 F.2d 728, 731-733 (4th Cir. 1990) (oral consent

rather than consent in writing), cert. denied, 111 S

Ct. 2019 (1991); United States v. Smith, 523 F.2d 788.

791 (5th Cir. 1975) (same), cert. denied, 424 U.S. 973

(1976); United States v. Spiegel, 604 F.2d 961, 965 (5th

Cir. 1979) (defense counsel, rather than defendant.

stipulated to a jury of less than 12), cert. denied, 446

U.S. 985 (1980); United States v. Roby, 592 F.2d 406

(Sth Cir.) (same), cert. denied. 442 U.S. 944 (1979).

Gray contends (Br. in Opp. 3, 5-6 & n.3) that respondent

nave raised otner “substantia! issues thal ‘Wl INnNeVILADILY

result in a reversal and new trial” even if this Court grants the

petition and reverses the decision of the court of appeals. Th

short answer to that contention is that the court of appeals did

not consider those additional issues and they are therefore 1

before this Court. Moreover, Gray's discussion of the other

issues raised in the court of appeais is one-sided. For example,

ve states (Br. in Upp >-6) that “one of the jurors was inex

cusably absent during an afternoon of the trial but yet th

district court allowed the trial to continue.” In fact. the juror

was not “inexcusably” absent, but instead became il! during the

uncheon recess on the 28th day of trial. Counsel for the defe1

dants discussed the situation and agreed to continue with the

testimony in spite of the juror’s absence. The juror returned

the next morning and, as agreed by counsel, was provided wit!

a transcript of the prior afternoon's proceedings. See R. 6,24

10

For the foregoing reasons, and those given in the

petition, it is respectfully submitted that the petition

for a writ of certiorari should be granted.

KENNETH W. STARR

So lor Cenera