Opposition Brief — Schuster v. United States

+ Oftice-Supreme Court, US.

FILED

(y) Dec Si 190

No. 84-57

ALEXANDER L. STEVAS,

GLERK

In the Supreme Court of the United States

OCTOBER TERM, 1984

SAMUEL SCHUSTER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI TO '

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

KAREN I. SKRIVSETH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the court of appeals correctly determined that

petitioner voluntarily waived his right to a jury trial and

agreed to a trial on stipulated facts and evidence.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

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Diaz v. United States, 223 U.S. 442 ............ 6

Douglas v. Alabama, 380 U.S.415 ............ 6

Julian v. United States, 236 F.2d 155 .......... 8

United States v. Brown, 428 F.2d 1100 ......... 8

United States v. Curcio, 712 F.2d 1532 ......... 9

United States v. Dorsey,

i Geek Pcheeebcaeceoeaeses 7, 8,9

United States v. Hasting, 461 U.S. 499 ......... 8

United States v. Lawson, 682 F.2d 1012 ...... ©

United States v. Robertson, 698 F.2d 703 ....... 5

United States v. Stalder,

SEA GKSASAGD SOA cK ese eawae eee 4,3. 7,9

United States v. Strother, 578 F.2d 397 ......... 7

United States v. Terrack, 515 F.2d 558 ....... 5,7

(III)

IV

Page

Cases—Continued:

United States v. Tobin, 701 F.2d 1108 ........ 4-5

Witherspoon v. United States, 633 F.2d 1247,

cert. denied, 450 U.S. 933 ........ cece ee eeees 7

Statutes and rules:

Travel Act, 18 U.S.C. 1952 ........ cece eee eens 2

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Fed. R. Crim. P. : |

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Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-579

SAMUEL SCHUSTER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A4) is

reported at 734 F.2d 424.

JURISDICTION

The judgment of the court of appeals was entered on June

4, 1984. A petition for rehearing was denied on August 10,

1984 (Pet. App. A8). The petition for a writ of certiorari was

filed on October 9, 1984. The jurisdiction of this Court is

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

STATEMENT

Following a bench trial on stipulated facts and evidence

before the United States District Court for the Central

District of California, petitioner was convicted on one

count of conspiracy to launder money received from narcot-

ics transactions, in violation of 18 U.S.C. 371. Petitioner

was sentenced to five years’ imprisonment and a fine of

$10,000. The court of appeals affirmed (Pet. App. Al-A4).

(1)

2

1. Petitioner was charged in seven counts of a 19-count

indictment with offenses related to a scheme to launder

$29,000,000 in currency derived from narcotics sales. Count

| charged that petitioner participated in a conspiracy to

cause financial institutions to fail to file currency transac-

tion reports (in violation of 31 U.S.C. 5322), to fail to file

currency transaction reports (in violation of 31 U.S.C.

5322), to violate the Travel Act (18 U.S.C. 1952), and to

defraud the government by obstructing the lawful functions

of the Internal Revenue Service (in violation of 18 U.S.C.

371). Petitioner was also charged in a second conspiracy

count and five substantive counts. Excerpt of Record (E.R.)

1-28.

The trial of petitioner and five co-defendants began on

March 8, 1983. On March 30, 1983, the court granted a

motion for mistrial with respect to petitioner and three of

his co-defendants, and their trial was severed. See E.R.

37-38.

2. On May i9, 1983, petitioner signed a waiver of his

right to a jury trial and requested to be tried by the court

(E.R. 29). His counsel signed a statement on the waiver

form representing that petitioner “was fully advised as to

the rights of an accused under the Constitution and laws of

the United States to a speedy and public trial by jury” and

counsel’s belief that the waiver was “voluntarily and under-

standingly made” (ibid.).

On the same day, petitioner, his counsel, and the prosecu-

tor entered into a stipulation reciting that petitioner “has

agreed to waive trial by jury and to proceed to trial before

the court on count one” on the stipulated facts and evi-

dence, in exchange for which the government agreed to

dismiss the six other counts against petitioner if he were

found guilty on the conspiracy charge (E.R. 30). The stipu-

lation incorporated by reference the testimony of two wit-

nesses at the trial of some of petitioner's co-defendants. It

3

specified that two admitted members of the conspiracy

testified that petitioner gave others large sums of money for

laundering, that he was present during conversations con-

cerning the bribery of bank officers, and that he was paid

fees for laundering money and paid fees to others during the

course of the scheme. The stipulation further specified that

an agent of the Drug Enforcement Administration testified

that a ledger taken from the residence of a co-defendant

showed large currency transactions with “Samuel,” and

that, in the agent's expert opinion, the ledger reflected sales

of cocaine on credit and disbursements of money derived

from those sales. The stipulation also stated that several

recorded conversations between petitioner and his co-

defendants concerned wire transfers of laundered funds and

arrangements made by petitioner for one of his co-

defendants to pick up large quantities of currency. /d. at

30-36.

Following a colloquy with petitioner's counsel and an

inquiry of petitioner, the court accepted the waiver and

stipulation. Counsel represented that he advised petitioner

“that the government still has the ultimate obligation of

proving the elements of the crime charged to the exclusion

of every reasonable doubt” and that, should he be found

guilty, his “rights to appeal” would be “preserve[d].” Pet.

App. AS. Petitioner responded affirmatively when asked by

the court whether he concurred in his counsel's statement as

to “the conditions under which [he] executed the stipulation

of facts and the waiver of trial by jury” (id. at A6).

Counsel then argued to the court that the stipulated facts

did not establish petitioner's guilt (Tr. 6-12). He stated that

“there is no evidence that [petitioner] knew that he was

doing something wrong” and that the stipulated facts did

not show the agreement necessary to prove a conspiracy

(Tr. 7-8). The court convicted petitioner, finding that three

of the four objects of the conspiracy had been proved

beyond a reasonable doubt (Pet. App. A7).

4

3. The court of appeals affirmed (Pet. App. Al-A4). The

court rejected petitioner's arguments that the district court

was required to advise him of his right to confrontation and

that the evidence was not sufficient to support his convic-

tion. The court noted that petitioner “did not stipulate to

facts conclusively demonstrating his guilt in order to pre-

serve his right to raise an affirmative defense on appeal” (id.

at A3). In light of petitioner's “vigorous attack on the

sufficiency of the evidence,” it was clear to the court that the

stipulation did not amount to a “de facto plea of guilty”

(ibid.). The court concluded that petitioner “voluntarily

consented to a court trial based on stipulated facts” (id. at

A4).

ARGUMENT

Petitioner contends (Pet. 7-16) that the district court

erred in not advising him of his right to confront the wit-

nesses against him, which he waived as a result of his

agreement to be tried on the basis of the stipulation. Despite

his allegation of a conflict among the circuits, petitioner

does not cite a single case establishing a rule under which bis

conviction would be set aside. The district court adequately

established the voluntariness of petitioner's decision to

waive his right to a jury trial and to proceed on the facts and

testimony embodied in the stipulation. Petitioner's claim to

the contrary does not warrant further review, especially in

light of the absence of prejudice and the diminished signifi-

cance of stipulated-facts trials following the recent amend-

ment to the Federal Rules of Criminal Procedure authoriz-

ing conditional guilty pleas.

1. Petitioner's agreement to be tried on the basis of the

stipulation is constitutionally unobjectionable so long as he

“knew what he was doing when ... entered into the stipula-

tion.” United States v. Stalder, 696 F.2d 59, 62 (8th Cir.

1982); see, e.g., United States v. Tobin, 701 F.2d 1108, 1110

5

(4th Cir. 1983); United States v. Lawson, 682 F.2d 1012,

1016 (D.C. Cir. 1982); United States v. Terrack, 515 F.2d

558, 560 (9th Cir. 1975). The court of appeals correctly

applied that rule to the facts of this case. There plainly was

an adequate waiver of petitioner's right to a jury trial, the

“critical decision” (Lewson, 682 F.2d at 1016) involved in

the agreement to a trial on stipulated facts. He signed a

standard waiver form, and the court expressly inquired of

petitioner as to his waiver (see pagesx2-3, supra). Petitioner

also affirmed to the court his understanding of the effect of

the stipulation (page 3, supra). Petitioner does not contend

that the stipulation was the result of “prosecutorial over-

reaching, * * * * * that he was under any compulsion to

make the challenged stipulation or that he had ineffective

assistance of counsel.” United States v. Robertson, 698

F.2d 703, 708-709 (Sth Cir. 1983). The court's inquiry was

sufficient to demonstrate that petitioner acted voluntarily

and understood the consequences of his decision. The fact-

bound claim to the contrary, rejected by the court below,

does not merit this Court's review.

In particular, the record amply supports a conclusion

that petitioner was aware of and voluntarily chose to forgo

his confrontation rights. Only two months before, peti-

tioner had been tried before a jury (see page 2, supra). In

light of this experience, he surely knew of the right of

cross-e€xamination; nothing in the record suggests he did

not. And by entering into the stipulation, petitioner must

have been aware that he would not be receiving a trial at

which witnesses would be called and cross-examined. As

the court noted in United States vy. Stalder (696 F.2d at 62),

im rejecting a similar challenge to a stipulation:

The claim that the defendant thought that he was

waiving only a jury trial, and that some kind of court

trial would still take place, is simply untenable on the

6

face of the record. The colloquy as a whole reflects

clearly not only that a jury trial was waived, but that no

trial at all would take place * * * .

See generally Diaz v. United States, 223 U.S. 442, 452-453

(1912) (“the accused, by his voluntary act, placed in evi-

dence the testimony disclosed by the record in question, and

thereby sought to obtain an advantage from it[;] he waived

his right of confrontation as to that testimony and cannot

now complain of its consideration”). On these facts, further

inquiry by the district judge — who had presided at peti-

tioner’s earlier trial — was not required.

2. There is no basis for petitioner’s proposed require-

ment that he be advised by the court of his confrontation

rights.! Petitioner analogizes to Fed. R. Crim. P. 11(c),

which requires that the court inform a defendant of speci-

fied rights before accepting a plea of guilty or nolo conten-

dere.” Petitioner did not, however, stipulate to facts conclu-

sively demonstrating his guilt. To the contrary, petitioner

'This Court’s cases addressing the question of waiver of confronta-

tion rights do not support petitioner’s argument. Those cases do not

impose a requirement that the court advise a defendant with respect to

his confrontation rights. Moreover, they arose in quite different cir-

cumstances from this case and do not suggest that judicial advice is

required on these facts, where petitioner expressly agreed with his

counsel's decisions and representations. See Barber v. Page, 390 U.S.

719, 725 (1968) (failure to cross-examine witness at preliminary hearing

not a waiver of confrontation rights at trial); Brookhart v. Janis, 384

U.S. 1, 7 (1966) (counsel’s waiver was “inconsistent with his client's

expressed desire”); Douglas v. Alabama, 380 U.S. 415, 420-423 (1965)

(counsel's failure to continue objecting to each question after objecting

three times did not constitute a waiver).

?Rule I l(c) provides:

Advice to Defendant. Before accepting a plea of guilty or nolo

contendere, the court must address the defendant personally in

open court and inform him of, and determine that he understands,

the following:

(1) the nature of the charge to which the plea is offered,

the mandatory minimum penalty provided by law, if any,

7

argued the sufficiency of the evidence to both courts below,

and his stipulation was not only to facts, but to testimony

that need not have been credited by the court. See, e.g.,

United States v. Dorsey, 449 F.2d 1104, 1108 (D.C. Cir.

1971). Under these circumstances, Rule |! plainly does not

apply. See, e.g., United States v. Lawson, 682 F.2d at 1015

(“{i]n cases where defendants have not admitted guilt and

waived trial on all issues, courts have uniformly held that a

Rule 11 inquiry is not required”); United States v. Stalder,

supra (Rule 11 does not apply even where defendant effec-

tively stipulates to his guilt); United States v. Terrack,

supra (same).

and the maximum possible penalty provided by law, includ-

ing the effect of any special parole term; and

* w * * *

(3) that he has the right to piead not guilty or to persist in

that plea if it has already been made, and he has the right to

be tried by a jury and at that trial has the right to the

assistance of counsel, the right to confront and cross-

examine witnesses against him, and the right not to be

compelled to incriminate himself; and

(4) that if his plea of guilty or nolo contendere is accepted

by the court there will not be a further trial of any kind, so

that by pleading guilty or nolo contendere he waives the

right to a trial;

3It has been suggested that Rule 11 should apply (at least in part)

when the defendant, in effect, stipulates to his guilt in order to obtain

appellate review of a pretrial ruling. See Witherspoon v. United States,

633 F.2d 1247 (6th Cir. 1980), cert. denied, 450 U.S. 933 (1981); United

States v. Strother, 578 F.2d 397 (D.C. Cir. 1978). Although we believe

that this suggestion is wrong — Rule I! by its terms applies only to

guilty and nolo contendere pleas, which have different consequences

from trials even where all facts are stipulated —that question is not

presented here, because petitioner’s stipulation did not effectively con-

stitute a plea of guiity.

8

Petitioner was in any event not prejudiced by ‘he district

court’s failure to inquire more fully into the c’ rcumstances

surrounding his agreement to the stipulation. Even under

Rule 11, a departure from the specified procedures may

constitute harmless error (Fed. R. Crim. P. 11(h)). Peti-

tioner was present at his trial; his chief complaint seems to

involve the incorporation by reference of testimony from

the trial of his co-defendants. But such incorporation is not

in itself improper. See, e.g., United States v. Dorsey, supra.

Petitioner does not suggest that the content of the testimony

was nknownto him or that the district court’s reliance on it

came as a surprise. Compare Julian v. United States, 236

F.2d 155, 158 (6th Cir. 1956) (“it is not contended that

defendant acquiesced in or approved of the stipulations of

defense counsel”). Nor does petitioner point to other facts

suggesting that he might not have entered into the stipula-

tion, or that he might have changed it, had he been ques-

tioned more extensively by the court. Moreover, petitioner

does not suggest that the government would not have been

able to prove any of the facts to which he stipulated.4 Under

these circumstances, any error was harmless. See United

States v. Hasting, 461 U.S. 499 (1983); compare United

States v. Brown, 428 F.2d 1100, 1103 (D.C. Cir. 1970)

(inquiry before accepting stipulation required where the

“defendant [was] admittedly suffering from a mental

disorder”).

3. Finally, Rule 11 was amended in 1983 to provide for

conditional guilty pleas, which permit a defendant, with the

approval of the court and the government, to enter a plea of

guilty while reserving the right to appeal from an adverse

4Petitioner’s two co-conspirators who did not obtain a mistrial were

convicted at the trial during which the testimony incorporated in the

stipulation was given. The district court commented on the similarity

between the contents oi the stipula tion and the evidence produced at

the earlier trial (Pet. App. A7).

9

determination of a pretrial motion (Fed. R. Crim. P.

11(a)(2)). While this procedure is not available to preserve

every challenge that a defendant might wish to pursue on

appeal,’ it will often obviate the need to employ the device

of a trial on stipulated facts. See, e.g., United States v.

Stalder, 696 F.2d at 60 n.2; United States v. Dorsey, 449

F.2d at 1108 n.18 (problems relating to stipulated-facts

trials arise because defendants are unable to obtain appel-

late review of rulings on suppression motions if they plead

guilty). Questions related to trials on stipulated facts can

therefore be expected to arise with less frequency than they

may have under prior law.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

KAREN I. SKRIVSETH

Attorney

DECEMBER 1984

5See, e.g., United States v. Curcio, 712 F.2d 1532, 1537 (2d Cir.

1983). The procedure would not, for example, preserve for appellate

review issues that can only be addressed ona full trial record, suchas the

sufficiency question raised below.

DOJ-1984-12