# Reply Brief — United States v. Olano > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0244%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1993 - **Citation:** 507 U.S. 725 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0244%3A05. Public record. Not legal advice.