Opposition Brief — Spradley v. United States

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No. 84-1210

On the Supreme Court of the United States —

OctToser TERM, 1984

Gay SPRADLEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

Maury S. EPNER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ger

QUESTIONS PRESENTED

1. Whether the failure of the district court to inform

counsel of a communication between the judge and jury

during deliberation of the jury constituted reversible error.

2. Whether the use of testimony of five co-conspirators

who had entered into plea agreements with the government

deprived petitioner of due process of law.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Rogers v. United States, 422 U.S.35 ......... 6, 8

Rushen v. Spain, 464 U.S. 114 .......cccececee 6

Snyder v. Massachusetts, 291 U.S.97 .......... 6

United States v. Birges, 723 F.2d 666,

cert. denied, No. 83-6398 (Apr. 16, 1984) ...... 7

United States v. Bufalino, 576 F.2d 446,

EE 6

United States v. Dailey, No. 84-1578

a ehs Ge en e.ce see ena eee 10

United Staies v. Dominguez,

es Ee kab bn Mea eee ienyeée 6

United States v. Gagnon, No. 84-690

CR Pe ee ee 6, 9, 10

United States v. Librach, 536 F.2d 1228,

ee EE SR re 12

United States v. Lopez, 728 F.2d 1359,

cert. denied, No. 83-1983 (Oct. 1, 1984) ........ 7

United States v. Rabb, 453 F.2d 1012 ........ 8,9

(111)

IV

Page

Cases—Continued:

United States v. Ronder, 639 F.2d 931 pits 8

United States v. Treatman, 524 F.2d 320 ........ 8

United States v. Waterman,

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United States v. Yonn, 702 F.2d 1341,

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United States v. Young, No. 83-469

Es cane yiee dv ieee ases es 9, 10

United States v. Zarintash,

pT Se ee ee ane 7,8

_ United States v. Zielie, 734 F.2d 1447,

cert. denied, No. 84-482 (Jan. 21, 1985) ...... 5, 8

Constitution, statutes and rule:

U.S. Const. Amend. V (Due Process

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Fed. R. Crim. P. :

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Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-1210

Gay SPRADLEY, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The decision of the court of appeals (Pet. App. A1l-A3) is

reported at 747 F.2d 1466 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

October 30, 1984. A petition for rehearing was denied on

November 29, 1984 (Pet. App. A16-A17). The petition for a

writ of certiorari was filed on January 28, 1985. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Middle District of Florida, petitioner was convicted

of one count of conspiring to import marijuana, in violation

of 21 U.S.C. 952(a), 960, and 963, two counts of importing

marijuana, in violation of 21 U.S.C. 952(a) and 960 and 18

(1)

2

U.S.C. 2, one count of conspiring to possess marijuana with

intent to distribute, in violation of 21 U.S.C. 841(aj(1) and

846, and two counts of possessing marijuana with intent to

distribute, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C.

2. She was sentenced to concurrent five-year terms of impri-

sonment on five counts, to be followed by a special parole

term of three years, and to four years’ probation on the

remaining count, to commence following her release from

confinement. Petitioner was also fined $5,000. The court of

appeals affirmed (Pet. App. Al-A3).

1. The evidence at trial established that petitioner,

together with six other persons, imported and distributed

marijuana on two occasions during 1981 and 1982.' The

first marijuana importation, of between 500 and 700

pounds, occurred in November 1981 and involved the use of

an airplane recently purchased by certain of the co-con-

spirators. Petitioner’s co-conspirators testified that peti-

tioner aided in the enterprise by selecting landing sites and

later serving as a lookout when the marijuana arrived (Pet.

4; see, e.g., VIII R. 29-30, 37). She performed similar func-

tions in connection with the second importation, which

occurred in February 1982 and again consisted of approxi-

mately 700 pounds (Pet. 4-5; see VIII R. 43-46).’

Petitioner was named in a six count indictment together with John

King, Benjamin Holmes Morris, and her former husband Joseph

Spradley (Pet. App. A4-A7). At the time of petitioner’s trial, Joseph

Spradley remained at large. William Reed and Monte Koon, arrested

some months before petitioner while attempting to import marijuana in

a sailboat, later disclosed their involvement in the transactions in which

petitioner was involved. Larry Jacobs, the seventh member of the

conspiracy, waived indictment and pled guilty to an information before

petitioner went to trial (VIII R. 200).

2While all five cc-conspirators who testified at petitioner’s trial

agreed that she had participated in both importation schemes, Morris

recalled that the first marijuana shipment arrived approximately one

week later than the other witnesses testified that it arrived. Similarly, he recalled

3

The government’s case at trial depended largely on the

testimony of five of petitioner’s six confederates, each of

whom entered into plea agreements under which they

would plead guilty to a single count and testify truthfully at

petitioner’s trial. The government, in turn, agreed to

recommend certain maximum sentences with respect to

each individual. King and Morris both pleaded guilty to one

count of conspiracy to import marijuana (II R. 332-333),

carrying a maximum penalty of five years’ imprisonment.

King also pleaded guilty to a charge in a separate prosecu-

tion in a different judicial district, carrying a 15 year maxi-

mum term of imprisonment (VIII R. 100-102, 105). Jacobs

pleaded guilty to a single count of conspiracy to import, and

the government agreed to recommend that he be sentenced

to no more than three years’ imprisonment (id. at 200).

Reed and Koon pleaded guilty to single counts of posses-

sion and the government initially agreed to recommend

seven year sentences (id. at 59-60, 149-150). After Koon

assisted the government in an unrelated investigation as a

confidential informant, however, the government agreed to

reduce its recommendation as to him alone to no more than

five years’ imprisonment (id. at 125-126, 149, 152; IX R. 7).

While requiring each individual to offer exclusively “truth-

ful testimony” at petitioner’s trial, none of the plea agree-

ments contained any other contingency. See GX 8; DX 2-5.

The jury was informed of the agreements and warned to

receive the witnesses’ testimony with caution (IX R.

138-139).

that the second shipment arrived some weeks before the time the other

witnesses testified that it arrived (IX R. 23-25, 31). Reed and Koon also

testified about a third importation scheme that was not charged in

petitioner’s indictment, although they failed to agree on the details

surrounding this third transaction (VIII R. 4, 76-78).

4

2. Petitioner’s trial lasted two days. At 2:55 p.m. on the

second day, the jury retired to deliberate. At approximately

5:00 p.m. that afternoon, the jury informed the court that it

was deadlocked. After summoning counsel, informing

them of the jury note, and soliciting their suggestions (IX R.

152-155), the court indicated that it intended to deliver an

Allen charge to the jury and encourage the jurors to con-

tinue their deliberations (Pet. App. A9). Both counsel

examined the court’s proposed instruction; neither objected

to its content and the court thereafter charged the jury (IX

R. 155-157; Pet. App. A10-A11).

Approximately one hour later, the jury again communi-

cated with the court. This time, the jury asked that testi-

mony be read “regarding the second plane load of mari-

juana, specifically what was the testimony concerning

[petitioner’s] involvement at the landing site, at the stash

house and thereafter” (Pet. App. A12). Without summon-

ing counsel or informing them of the jury’s note, the court

advised the jury “that we have no transcripts available of the

testimony and you will have to follow your own recollec-

tion” (ibid). Forty minutes later, the jury advised the court

that it had reached a verdict. Counsel were summoned. At

that juncture, the court informed counsel that it had

received and responded ex parte to the jury’s request.

Neither counsel objected to the district court’s action (id. at

A12-A13). The jury’s verdict was then announced.

3. On appeal, petitioner objected for the first time to the

district court’s action in responding to the jury’s note, con-

tending that it violated Fed. R. Crim. P. 43(a) and necessi-

tated reversal of her conviction. The court of appeals

affirmed (Pet. App. Al-A3). While noting (Pet. App. A2)

that “trial judges should always confer with counsel con-

cerning communications with a jury during deliberations,”

the court added that “failure to follow such procedures is

not an automatic per se ground for reversal.” In so holding,

5

the court of appeals relied upon United States v. Zielie, 734

F.2d 1447 (11th Cir. 1984), cert. denied, No. 84-482 (Jan. .

21, 1985) where, as in the instant case, the district court had

responded ex parte to a jury request —there for “a copy of

the [trial] transcript” — by informing the jury that no such

transcript had yet been prepared and that the jury “must

follow [its] collective recollection of the evidence” (734 F.2d

at 1460). Holding that the trial court’s action violated Rule

43(a), the Zielie court nevertheless concluded that such

error was harmless as appellant had failed to demonstrate

prejudice. Likewise, the court of appeals here concluded

that “[uJnder the facts of this case, we find no reversible

error” (Pet. App. A2).

The court of appeals also held that the government’s

reliance upon the testimony of the five co-conspirators

following their entry into plea agreements with the govern-

ment did not violate due process (Pet. App. A3). Petitioner

had relied upon United States v. Waterman, 732 F.2d 1527

(8th Cir. 1984), in contending that the use of such witnesses

violated her right to due process. In Waterman, a panel of

the Eighth Circuit had concluded that a government prom-

ise to recommend leniency for certain prosecution witnesses

contingent upon their testimony aiding in defendant’s

indictment constituted an “invitation to perjury” and thus

infringed defendant’s right to due process (732 F.2d at

1531). Noting both that the panel’s decision in Waterman

was subsequently vacated and the case set for rehearing en

banc? and that, in any event, the instant case was factually

distinguishable, the court of appeals rejected petitioner’s

due process claim and affirmed her conviction. “The panel

opinion [in Waterman] condemns the use of a witness who

has entered into an agreement with the government based

3The en banc Eighth Circuit, by an equally divided vote, subsequently

affirmed the judgment of conviction in Waterman (732 F.2d 1533). A

petition for a writ of certiorari is pending in Waterman (No. 84-1235).

6

upon the results of his or her testimony. Withcut comment-

ing on the opinion, we find no factual support in the record

for the argument being made” (Pet. App. A3).

ARGUMENT

1. Petitioner contends (Pet. 8-13) that the district court’s

failure during jury deliberations to inform her of a jury

request to have certain testimony repeated violated her

rights under Fed. R. Crim. P. 43(a) and the Due Process

Clause and necessitates reversal of her conviction. The

court of appeals, however, correctly found (Pet. App. A2)

no reversible error in the district court’s action. The sole

issue is whether petitioner was prejudiced by the trial court’s

failure to inform her of the exchange with the jury.

Fed. R. Crim. P. 43(a) guarantees to a defendant in a

criminal trial the right to be present “at every stage of the

trial including the impaneling of the jury and the return of

the verdict.” In Rogers v. United States, 422 U.S. 35 (1975),

this Court held that this rule requires that jury inquiries

during deliberations be “answered in open court” and that

defense counsel be afforded “an opportunity to be heard

before the trial judge respond{s]” (id. at 39). Nevertheless,

the Court indicated that not every district couft failure to

comply with Rule 43 necessitates reversal, observing that

such violations “may in some circumstances be harmless

error” (id. at 40). See al v. Spain, 464 U.S. 114

(1983), fert. denied, 464 U.S. 917 (198 ited States v.

Yonn, 702 F.2d 1341, 1344-1345 (11th Cir. 1983}; United

States v. Dominguez, 615 F.2d 1093, 1094-1096 (Sth Cir.

1980); United States v. Bufalino, 576 F.2d 446, 451 (2d

Cir.), cert. denied, 439 U.S. 928 (1978). Here, although the

district court failed on one occasion to comply with Rule

3,

43(a), the error did not prejudice petitioner’s “opportunity —

to defend against the charge.” United States v. Gagnon,

No. 84-690 (Mar. 18, 1985), slip op. 5; see Snyder v. Massa-

chusetts, 291 U.S. 97 (1934).

7

Petitioner does not dispute that a Rule 43 violation is not

reversible error unless it prejudices the defendant’s right toa

fair trial. Rather, petitioner contends that “{u]nder the uni-

que circumstances of this case” (Pet. 9) the court of appeals

erred in concluding that the violation was not reversible

error. Application of well-settled principles of determining

prejudice to the concededly “unique circumstances of this

case” is obviously not a matter warranting this Court’s

review. But in any event, the court of appeals was correct in

its disposition of the matter.

The jury requested that testimony be repeated concerning

one of two transactions about which five prosecution wit-

nesses testified over the course of one and one-half days.

The grant or denial of such a request is within the broad

discretion of the district court. United States v. Zarintash,

736 F.2d 66, 69-70 (3d Cir. 1984); United States v. Lopez,

728 F.2d 1359, 1363 (11th Cir. 1984), cert. denied, No.

83-1983 (Oct. 1, 1984); United States v. Birges, 723 F.2d

666, 671 (9th Cir. 1984), cert. denied, No. 83-6398 (Apr. 16,

1984). As the court of appeals noted (Pet. App. A2), the

most common — and permissible — response of trial judges

to such a request is to “advise the jury to rely upon its own

recollection of the testimony.™ The exercise of discretion

was particularly understandable and appropriate here,

since at the time the jury made its request, the court reporter

had not yet transcribed the trial testimony (Pet. App. A12).

See Unit. d States v. Lopez, 728 F.2d at 1363 (no abuse of

discretion where trial judge refuses to recount testimony of

two witnesses on specific factual point). Thus, while the

district court should, consistent with Rule 43(a), have

informed counsel of the jury’s request at the time it was

“We thus disagree with petitioner’s characterizatioz of this routine

exercise of trial court discretion as “a summary deprivation of the

defendant’s right to have specific testimony re-read” (Pet. 10). Except

perhaps in special circumstances (not presented here), the decision is

simply one of trial governance, not of the defendant’s “right.”

8

first made, that it failed to do so here did not rise to the level

of reversible error.

Petitioner’s assertion (Pet. 9-10) of aconflict between the

decision below and Rogers v. United States, supra, is,

accordingly, unfounded. In Rogers, the district court

responded to a jury note that “was tantamount to a request

for further instructions” without complying with Fed. R.

Crim. P. 43(a) (422 U.S. at 39). The court’s' response,

moreover, was substantively incorrect Kand “fraught with

potential prejudice” (id. at 41).° This Court thus concluded

that “the nature of the information conveyed to the jury, in

addition to the manner in which it was conveyed,” necessi-

tated reversal of petitioner’s conviction (id. at 40) Here, in

contrast, the jury’s request was not for additional instruc-

tion, but to be read untranscribed excerpts of the testimony

of five witnesses. In denying the jury’s request in the exercise

of its discretion, the district court’s response “was purely

ministerial, advising the jury that no transcript was avail-

able.” United States v. Zielie, 734 F.2d at 1460.°

*In Rogers, the jury inquired whether the district court would “accept

the Verdict — ‘Guilty as charged with extreme mercy of the Court.’ ”

The court, without first informing counsel, indicated that it would (422

U.S. at 36 (citation omitted)). This Court observed that not only was the

trial court wrong to ignore Rule 43(a) when faced with a request for

supplemental instruction, but “{a]t the very least, the [district] court

should have reminded the jury that the recommendation would not be

binding in any way. * * * In addition, the response should have

included the admonition that the jury had no sentencing function * * *”

(id. at 40). |

*The appellate decisions petitioner contends (Pet. 10) are in conflict

with the decision below are also inapplicable. United States v. Zarin-

tash, 736 F.2d at 70, involved a jury request for the testimony of a single

witness “which occupied a discrete [and short] portion” of an already

existing transcript. In United States v. Ronder, 639 F.2d 931, 934 (2d

Cir. 1981), and United States v. Treatman, 524 F.2d 320, 323 (8th Cir.

1975), as in Rogers, jury requests for supplemental instruction were

answered without affording counsel the opportunity to comment or

object. Finally, in United States v. Rabb, 453 F.2d 1012 (3d Cir.

ee ee

9

The insubstantiality of petitioner’s argument is brought

home by the reaction of her defense counsel when informed

— minutes later — of the jury’s request and the court’s

response. Although the jury’s verdict had not yet been ren-

dered, counsel did not raise any objection either to the

court’s failure to inform petitioner when the incident

occurred or to the court’s response to the jury. Nor did

petitioner raise the issue in post-trial motions, “although

post-trial hearings may often resolve this sort of claim”

(United States v. Gagnon, slip op. 6). This suggests strongly

that petitioner and defense counsel at the time did not

disagree with the trial court’s disposition of the jury’s

request. Their “latter day protests of the District’s Court’s

action with respect to [this] relatively minor incident” (id. at

7) should not be accorded much credence. Furthermore,

petitioner’s failure to object when informed of the incident

provides an additional ground for affirmance of the judg-

ment below. See United States v. Young, No. 83-469 (Feb.

20, 1985), slip op. 13 (in absence of a timely objection to

preserve the error for appeal, the “dispositive issue” is not

whether there was error, but whether it was “plain error”);

United States v. Gagnon, slip op. 7 (“defendant or his

counsel * * * may not claim [a Rule 43 right] for the first

time on appeal from a sentence entered on ajury’s verdict of

‘guilty’ ”).’

1971), the trial court, instead of granting the jury’s request to have

certain testimony read verbatim, “read its summary of the testimony

* * * and added that if the jury had a different recollection of the

testimony they should use it to guide them” (id. at 1013). Thus, unlike

the discretionary refusal at issue here, in Rabb the court’s insistence on

delivering its own summary “raise[d] the possibility that the jury [might

have been] given an erroneous view of the testimony * * * (id. at 1015).

7We are mindful of the distinction between this case and Gagnon: in

Gagnon the defendants were informed in advance of the judge’s inten-

tions to communicate in chambers with the juror, whereas here the

judge’s communications were revealed 40 minutes after they had taken

10

2. Petitioner also contends (Pet. 14-18), relying exclu-

sively upon the panel decision in United States v. Water-

man, supra, that the government’s use of witnesses with

whom it had entered into plea agreements violated her right

to due process, requiring reversal of her conviction. The

Waterman decision has since been vacated by the en banc

court (732 F.2d at 1533) and therefore no longer stands as

authority for petitioner’s position. The rationale of the

Waterman panel decision has also recently been rejected by

the First Circuit in United States v. Dailey, No. 84-1578

(Apr. 5, 1985). There is not, therefore, even a colorable

claim of a conflict in the circuits. Moreover, petitioner

raised this issue for the first time in her supplemental brief in

the court of appeals (Pet. App. A3). Having failed to pre-

serve the issue for appeal, petitioner cannot prevail on it

now — unless, as petitioner does not contend, the district

court committed plain error. See United States v. Young,

supra.

In any event, the court below did not reject the Waterman

panel’s holding as a matter of law, but simply pointed out

that there is “no factual support in the record for the argu-

ment” (Pet. App. A3). That conclusion does not warrant

this Court’s attention, and is clearly correct.

place. We therefore do not contend that petitioner waived her Rule 43

rights in the sense in which the defendants waived those rights in

Gagnon. Nonetheless, this Court in Gagnon stressed (slip op. 5-6

‘(emphasis added)) that the Gagnon defendants

neither then [when the incident occurred] nor later in the course of

the trial asserted any Rule 43 rights they may have had to attend

this conference. * * * No objections of any sort were lodgea,

either before or after the conference. Respondents did not even

make any post-trial motions.

Nor did the Gagnon defendants lodge any objection to the action taken

by the trial court as a result of the in chambers interview with the juror

(id. at 2). The Court’s strictures against these procedural derelictions in

Gagnon apply equally to the instant case.

11

In Waterman as in this case, the conviction was based in

large part on the testimony of the defendant’s former con-

federates, which testimony was obtained as part of a plea

agreement. There the resemblance stops. In Waterman, the

panel’s ruling was based upon a finding that the plea agree-

ment was expressly “contingent upon the content and

results of [the witness’s] testimony” (732 F.2d at 1531

(emphasis in original)). The agreement, as interpreted by

the trial court in Waterman, provided that if the witness’s

cooperation “led to further indictments” the government

would recommend a reduction in sentence, but that if the

testimony “did not lead to the indictment of other individu-

als” the government would not recommend any reduction

in sentence (id. at 1530). It was on this interpretation of the

agreement that the court of appeals panel concluded that

the agreement was an “invitation to perjury” and a denial of

due process (id. at 1531).

The agreement in this case is wholly unlike that described

in Waterman. The agreement contained no contingency

whatsoever; petitioner’s co-conspirators were required to

provide “truthful testimony” — nothing more. Their fate

did not hinge upon whether their testimony tended to incul-

pate or exculpate petitioner, or upon what the outcome of

petitioner’s trial might be. Moreover, unlike in Waterman,

where the court relied upon a conclusion that the govern-

ment’s sole witness significantly expanded his testimony

after entry of the plea agreement (732 F.2d at 1532-1533),®

there is no extrinsic reason to doubt the truthfulness of the

testimony of the five government witnesses in this case.

Accordingly, unless a plea bargain wherein the government

® As we describe more fully in our brief in opposition to the petition in

Waterman (No. 84-1235), the various factual suppositions on which the

panel rested its ruling were largely unfounded. A copy of our Waterman

brief has been provided to petitioner.

12

agrees to a more favorable disposition in return for cooper-

ation or testimony is a violation per se — which not even the

Waterman panel would hold (732 F.2d at 1531) — the

conviction here should be sustained. See United States v.

Librach, 536 F.2d 1228, 1229-1230 (8th Cir.), cert. denied,

429 U.S. 939 (1976).

Petitioner insinuates (Pet. 17) that “[t]here is a substan-

tial factual basis showing that further recommendations for

lenient treatment were contingent on the Government’s

success with the Petitioner’s indictment and prosecution”

(Pet. 17). However, the sole factual support she offers

(ibid.) is that co-conspirator Koon obtained “an even more

favorable sentencing recommendation on the first day of

the Petitioner’s trial,” thus in her view making it “evident to

all five witnesses that ‘rewards’ for more lenient treatment

might be forthcoming at or before their subsequent sentenc-

ing hearings if they would please the Government approp-

riately.” Petitioner fails to mention, however, that Koon’s

recomme* sed sentence was reduced because he had assisted

the government as a confidential informant in an unrelated

prosecution. See VIII R. 125-126, 149, 152; IX R. 7. Nor

does she mention that none of the other four witnesses

obtained similar reductions, despite her contention that

such reductions were understood to follow in the event she

were convicted (which, of course, she was).

The court of appeals, by its recognition that there is “no

factual support in the record” for petitioner’s claim (Pet.

App. A3), rejected petitioner’s one-sided view of the events

in question. That analysis of the record does not require

review by this Court.

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

Maury S. EPNER

Attorney

APRIL 1985

DO}J-1985-04