Opposition Brief — Hernandez-Cartaya v. United States

Otfice-Supreme Court, US

| ) FILED

d 24 1985

No. 84-1459 wa.

DER L. STEVAS,

CLERK

——

In the Supreme Court of the Mnited Siates

Octoser Term, 1985

GUILLERMO HERNANDEZ-CARTAYA AND

FRANCISCO J. FERNANDEZ, PETITIONERS

Vv.

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

CHARLES FRIED

Acting Solicitor General

Girwn L. Arcuer, Jr.

Assistant Attorney General

MICHAEL L. PAup

Ropert E. Linpsay

ALAN HECHTKOPF

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

~ BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether counsel for a co-defendant commented in his

closing argument on petitioners’ silence at trial.

2. Whether the jury instructions properly informed the

jury of the government’s burden of proof.

3. Whether the district court abused its discretion by

refusing to conduct a voir dire of the jury on the question

whether any of the jurors had seen a newspaper article

relating to the trial that was published after the jury had

begun its deliberations.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Butler v. Rose, 686 F.2d 1163 .......

Carter v. Kentucky, 450 U.S. 288 ....

Cupp v. Naughten, 414 U.S. 141 .....

Dunn vy. Perrin, 570 F.2d 21, cert.

SE ET SUED a oe cccceeccces

Goins v. McKeen, 605 F.2d 947 .....

Gordon vy. United States, 438 F.2d 858,

cert. denied, 404 U.S. 828 .........

Henderson vy. Kibbe, 431 U.S. 145 ...

Hoover vy. United States, 358 F.2d 87,

cert. denied, 385 U.S. 822 .........

Marshall vy. United States, 360 U.S.

ve aseee

Murphy v. Florida, 421 U.S. 794 ....

Notaro vy. United States, 363 F.2d 169

Quercia y. United States, 289 U.S. 466

(IIT)

IV

Page

Czses—Continued:

Sheppard v. Maxwell, 384 U.S. 333 ........... 13

Tennessee v. Street, No. 83-2143

a een Canin nob 6a BE ims wr Y

United States v. Abascal, 564 F.2d 821,

certs. denied, 435 U.S. 942 and 953 .......... 12

United States v. Attell, 655 F.2d 703 .......... 13

United States v. Chiantese, 582 F.2d 974,

es 12

United States v. Corrigan, 548 F.2d 879 ....... 11

United States v. Doe, No. 82-786

FO eer earrace me rra ese ee EE ERED CE 8

United States v. Frady, 456 U.S. 152 ........... 8

United States v. Herring, 568 F.2d

ee ee eee ek bee aso 6 46% 12, 13, 16

United States v. Jones, 542 F.2d 186,

i Oe oe ose cboenekeces 12

United States v. Lord, 565 F.2d

DRC veto eee Cae Lae ves's ah 12, 13, 16

United States v. Park, 421 U.S. 658 ........... 10

United States v. Pepe, 501 F.2d 1142 .......... 11

United States vy. Perrotta, 553 F.2d

RN ee eee Ce oi ae hes wie ad 2 12, 16

United States v. Pomponio, 517 F.2d 460,

ce Ee BLE 14

United States v. Ricardo, 619 F.2d 1124,

a Be Gs FED novi bd vdecccsceers 16

Page

Cases—Continued:

United States v. Taylor, 569 F.2d 488,

me OM I. 12

United States v. Trapnell, 638 F.2d

PP whusenc been deyenekeeeteeewsnawanes 13, 16

United States v. Vasilaky, 168 F.2d 191 ....... 11

United States v. Walsh, 627 F.2d 88 .......... 11

United States v. Williams, 568 F.2d 464 ....... 13

United States v. Young, No. 83-469

CE SUD wks cv be cee seeks eer aces es 8,9

United States ex rel. Doggett v. Yeager,

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Statutes:

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Oe Ses BE ik nk bb 650 b de aeede gs cee ee 2

26 U.S.C. 7206(2) «02... ececsccccccscccccscees 2

Miscellaneous:

3 C. Wright, Federal Practice and Procedure:

CORE CGS 5.5 05k 6 Shreve ORR Reee EOS 11

In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1459

GUILLERMO HERNANDEZ-CARTAYA AND

FRANCISCO J. FERNANDEZ, PETITIONERS

|

Vv.

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 opinion of the court of appeals (Pet. App. Al-A14) is

reported at 747 F.2d 1390.

JURISDICTION

The judgment of the court of appeals was entered on

December 5, 1984. A petition for rehearing was denied on

January 15, 1985 (Pet. App. A18). The petition for a writ of -

certiorari was filed on March 12, 1985. The jurisdiction 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 Southern District of Florida, petitioners were con-

victed of a variety of offenses arising out of a scheme to

defraud the United States. Both petitioners were convicted

of conspiring to defraud the United States, in violation of

(1)

2

18 U.S.C. 371. Petitioner Hernandez-Cartaya was also

convicted on one count of willful attempted tax evasion, in

violation of 26 U.S.C. 7201; two counts of willfully sub-

scribing to false and fraudulent federal income tax returns,

in violation of 26 U.S.C. 7206(1); and four counts of assist-

ing others in the preparation of false and fraudulent federal

tax returns, in violation of 26 U.S.C. 7206(2). Petitioner

Fernandez was also convicted on three counts of willfully

subscribing to false and fraudulent federal income tax

returns, in violation of 26 U.S.C. 7206(1). Petitioner

Hernandez-Cartaya was sentenced to five years’ imprison-

ment and was fined $15,000. Petitioner Fernandez was

sentenced to three years’ imprisonment and was fined

$10,000. The court of appeals affirmed (Pet. App. Al-A14).

1. a. Petitioners were officers of WFC Corporation, a

large financial organization headquartered in Miami, Flor-

ida, that is primarily engaged in the business of arranging

international loans, chiefly to countries and corporations in

Central and South America (Pet. App. A5; 6 R. 1033-1035;

7 R. 1440; 9 R.1879-1886, 2091-2092; 10 R. 2340-2343; 11 R.

2749, 2910).! From 1973 through 1978, WFC Corporation

was extremely successful, and each year petitioners and

their co-defendants agreed to award sizeable cash bonuses

to themselves and other key company officers (Pet. App.

AS). Petitioners and their colleagues further agreed not to

report these bonuses as compensation on their federal

income tax returns and instructed other recipients not to

report their bonuses as well (ibid.). Petitioners also arranged

for the corporation’s accounting records to conceal the

payment of these bonuses, which amounted to more than

$100,000 each year (ibid.).?

!The statement of facts and the citations to the record are taken from

the government’s brief in the court of appeals.

?The method by which petitioners and their confederates agreed to

provide each other with bonuses and to conceal these funds from the

3

b. Of the six defendants who stood trial in this case, only

Henry Heitman, Jr., who was ultimately acquitted, testified

at trial (Pet. App. A9). In his testimony, Heitman de-

scribed his conversations with petitioner Hernandez-

Cartaya in which he told petitioner that he wanted to

receive his annual bonuses in nontaxable business perqui-

sites or personal loans rather than in cash, and he related the

type of perquisites and loans that he had received (ibid.; 12

R. 3197-3235; Gov't C.A. Br. 49-52). Following his testim-

ony, the government and Heitman’s co-defendants moved

to prevent Heitman’s counsel from commenting on the

other defendants’ failure to testify (Pet. App. A9-A10; 2 R.

311-317; 13 R. 3358). The district court granted the

government’s motion and instructed Heitman’s counsel to

limit his closing argument to the fact that Heitman had

testified and to the contents of Heitman’s testimony (13 R.

3449, 3452-3454; see Pet. App. A10). The court also advised

Heitman’s counsel thai he could inform the jury that his

client’s testimony stood unrebutted, but could not maintain

that the cnly other person who could have described the

pertinent transactions was petitioner Hernandez-Cartaya,

who had chosen not to testify (Pet. App. A10; 13 R. 3452-

3454). Heitman’s counsel expressly agreed to follow the

court’s instructions (13 R. 3454). The defendants objected

Internal Revenue Service is too elaborate to warrant reiteration in this

brief; it is fully detailed in the government’s brief in the court of appeals.

Gov't C.A. Br. 14-40. A copy of that brief has been lodged with the

Clerk of this Court.

3The court further instructed Heitman’s counsel that (13 R.

3452-3454):

You may make any comment you wish to make, but you may

not comment upon the failure, directly, of any other Defendant to

testify, and you may not comment indirectly to the degree — upon

the failure of any other Defendant to testify so that it might

prejudice the other Defendants in the presentation of their case.

*

4

to the court's ruling, arguing that even the limited com-

ments permitted would constitute an indirect comment on

their failure to testify (13 PR. 3459-3460).

In his closing argument, Heitman’s counsel followed the

court’s instructions and did not directly comment on the

failure of any of the other defendants’ to testify (Pet. App.

Al10). He did, however, comment extensively on Heitman’s

testimony, arguing that his client alone chose not to accept

the annual WFC bonuses in an illegal form (ibid.). Neither

petitioners nor their co-defendants objected to the argu-

ment by Heitman’s counsel. The following day, however,

Heitman’s co-defendants moved for a mistrial on the

ground that Heitman’s counse} had indirectly commented

on their failure to testify (14 R. 3888-3889). The district

court denied the motion (14 R. 3889).

c. Before delivering its charge to the jury, the district

court supplied each defense counsei with a typewritten copy

of the court's proposed jury instructions (12 R. 3316-3317).

Among those instructions was a standard charge describing

the government's burden of proof. That charge provided

that the government was required to prove the defendants’

guilt beyond a reasonable doubt, but not beyond all possi-

ble doubt. The court's charge to the jury (15 R. 3903-3904)

included that instruction describing the government's

burden of proof (see Pet. 14).* But, in giving that instruc-

tion, according to the court of appeals (see page 9 note 7,

*The charge provided that (Proposed Instructions at 3B; 12 R. 3317

(emphasis added)):

Thus, while the Government's burden is a strict or heavy

burden, it is not necessary that the Defendant's guili be proved

beyond ail possible doubt. It is only required that the Govern-

ment'’s proof exclude any “reasonable doubt” concerning the

defendant's guilt. A ‘eet daahe” © 0 Quel Veal upon

reason and common sense after careful and impartial considera-

tion of all the evidence in the case.

5

infra), the district court misspoke, erroneously substituting

the word “reasonable” for the word “possible.” However,

the court instructed the jury on at least 19 other occasions

during its charge that the government was required to estab-

lish each defendant's guilt beyond a reasonable doubt (15 R.

3904-3905, 3905, 3906, 3907, 3908 (twice), 3911, 3915, 3918-

3919, 3922 (twice), 3924, 3926, 3927, 3928, 3930, 3931, 3932

(twice)). Moreover, the court also instructed the jury to

“ “follow all of the Court's instructions as a whole’ ” and not

“ ‘to disregard or give special attention to any one instruc-

tion’ "(15 R. 3903-3904).

After retiring to deliberate, the jury sent the district court

a note requesting a written copy of the court's jury charge

(15 R. 3949-3950). The district court, after entertaining

argument from defense counsel and the government on the

jury's request (15 R. 3947-3950), agreed to provide the jury

with a typewritten copy of the charge (15 R. 3551-3953).

Petitioners did not ask the court to allow them to examine

or proofread the typewritten charge before it was given to

the jury; nor did petitioners ask the court for a copy of the

typewritten charge that was actually submitted to the jury

(Gov't C.A. Br. 99-100).

d. During the jury’s deliberations, on Friday, July 3,

1981, a one-page article concerning the trial appeared on

the third page of the local section of the Miami Herald (Ct.

Exh. 8; Pet. App. A19-A23). The article generally described

the evidence and events at trial (Pet. App. A19-A23), but it

also reported a variety of rumors regarding WFC Corpora-

tion, such as an allegation that WFC was linked to Fidel

Castro or, alternatively, to the CIA, that WFC was involved

in drug trafficking, and that WCF was “a large-scale swin-

die” (id. at A22). The article also stated that no criminal

charges had been filed for such matters, notwithstanding a

wide-ranging investigation by a task force of agents from

the Drug Enforcement Administration and Federal Bureau

6

of Investigation (ibid.). The article also noted that peti-

tioner Hernandez-Cartaya had been arrested in Ajman,

Saudi Arabia, before being arrested in Miami, that Saudi

Arabian officials claimed that a bank operated by WFC was

missing more than $30 million, and that Hernandez-

Cartaya had been acquitted of conspiring to use a false

passport to reenter the United States following his arrest in

Saudi Arabia (ibid.). Lastly, the article quoted from two of

the district court's rulings at trial as well as a comment that

the court had made on the government’s proof after the jury

had retired to deliberate (id. at A20). On the next day that

court was in session (the following Monday) the defendants

asked the district court to voir dire the jurors separately to

determine whether they had read or were aware of the

article. The court said that it would defer ruling on the

defense motion until the court had read the article and

would issue its ruling later that day. That afternoon, the

court denied the request (16 R. 3968, 3970).

2. The court of appeals affirmed petitioners’ convictions

(Pet. App. Al-Al4). After conducting “a careful study of

the closing argument” (id. at A10), the court found that “in

only One instance did Heitn 1's attorney even come close

to commenting indirectly on the [petitioners’] failure to

testify at trial, and in this instance the statement was not of

such character that the jury would take it to be a comment

on” petitioners’ silence. The one exception, the court noted

(id. at A10-Al1l1), concerned the statement by Heitman’s

counsel that the district court would instruct the jury, in

considering Heitman’s guilt, to “ ‘bear in mind’” that

Heitman had explained “ ‘in detail every facet of what he

did, did not do, or did know or didn't know’ ” and had

“ “subjected himself to the rigors of the power of our

government's cross examination * * *.’” That statement,

the court held (id. at A11-A12), was not manifestly intended

as a comment on the failure of Heitman’s co-defendant’s to

testify and would not have been viewed as such by the jury.

>

The court also rejected petitioners’ argument that the jury

had been misinformed as to the government's burden of

proof (Pet. App. A6-A9). The court concluded that the

charge, when viewed as a whole, clearly informed the jury

that the government was required to prove petitioners’ guilt

beyond a reasonable doubt (id. at A8-A9). The court noted

(id. at A8) that the district court had correctly instructed the

jury on this matter on at least 19 different occasions during

its charge and that the district court, when addressing the

particular statutes petitioners were alleged to have violated,

told the jury that the government was required to establish

petitioners’ guilt beyond a reasonable doubt on those

charges. The court also observed (id. at A9) that none of the

six defense counsel had objected to the jury charge either

during or after its presentation. The court thus held that the

district court's isolated misstatement could not have misled

the jury as to the correct burden of proof (ibid.).

Finally, after reviewing the evidence and the Miami

Herald article, the court also held (Pet. App. Al2-A13) that

the district court had not abused its discretion by declining

to conduct a voir dire of the jury to determine whether any

of its members had read or heard of the article. Most of the

information contained in the article had been received in

evidence at trial, the court noted (id. at Al3), and the

remainder did not relate to the charges against the defend-

ants (ibid.). Moreover, given the district court's specific

instructions to the jurors not to read or listen to media

accounts of the trial, which the jurors were presumed to

have followed, the likelihood that the jurors had read the

article was small (ibid.).

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of any other

court of appeals. The court of appeals simply applied

8

well-settled legal principles to the facts of this particular

case. Accordingly, review by this Court of petitioners’ fact-

bound claims is not warranted.

1. Petitioners argue (Pet. 15-17) that counsel for co-

defendant Heitman improperly referred during his closing

argument to their decision not to testify at trial. Petitioners

do not object to the standard applied by the court of appeals

to determine whether permitting those remarks was errone-

ous;® rather, petitioners simply challenge the court of

appeals’ application of that test to the particular facts of this

case. However, both the district court (14 R. 3888-3889) and

the court of appeals (Pet. App. Al1-A12) found that the

statements by Heitman’s counsel were not an indirect com-

ment upon petitioners’ silence. Given these concurrent find-

ings by the lower courts, review by this Court of petitioners’

fact-bound claim is unwarranted. See, e.g., United States

v. Doe, No. 82-786 (Feb. 28, 1984), slip op. 8.°

‘The test applied by the court of appeals—whether the statements

were manifestly intended to be, or were of such character that a jury

would naturally and necessarily take them to be, a comment upon

petitioners’ silence (Pet. App. Al 1)—has been adopted by every federal

court of appeals. See Butler v. Rose, 686 F.2d 1163, 1170 & n.6(6th Cir.

1982) (en banc) (collecting cases).

‘In any event, the court of appeals correctly rejected petitioners’

claim. To begin with, »titioners did not object to the statements they

now challenge until ‘»« day after the closing argument by Heitman’s

counsel (14 R. 3888-1689). Petitioners therefore cannot prevail unless

permitting those remarks amounted to plain error. See United States v.

Young, No. 83-469 (Feb. 20, 1985), slip op. 12-15; United States v.

Frady, 456 U.S. 152, 163 (1982). No such error occurred in this case.

As the court of appeals found (Pet. App. Al0), the remarks by

Heitman’s counsel, with one exception, did not approach being an

indirect comment upon petitioners’ silence, and that exception was not

likely to be perceived as such by the jury. Heitman’s counsel merely

commented on his client's testimony, such as his client's desire to receive

perquisites and loans, rather than cash (14 R. 3709-3710, 3725-3741),

and the government's failure on cross-examination to elicit any damag-

ing admissions from his client (14 R. 3725-3736, 3741-3743). Contrary

9

2. Petitioners contend (Pet. 13-14) that the district court

erred by submitting to the jury a transcript of the court’s

oral jury instructions that contained a misstatement of the

government’s burden of proof. As noted above (pages 4-5),

the error resulted in the substitution of the word “reason-

able” for the word “possible” in connection with the court’s

description of the government’s burden of proof. Peti-

tioners claim that this error allowed the jury to find that

petitioners had committed the charged offenses without

being convinced of their guilt beyond a reasonable doubt.

That claim lacks merit.’

to petitioners’ claim (Pet. 7, 15), Heitman’s counsel did not attempt to

distinguish his client from petitioners or their other co-defendants on

the ground that Heitman alone had testified. Rather, as the court of

appeals observed (Pet. App. Al2), “the remarks made by Heitman’s

attorney were clearly intended to point out that Heitman did not wish to

receive cash bonuses and that the government’s evidence and cross

examination had failed to refute Heitman’s testimony * * *.” It is

most unlikely that the jury would have viewed these remarks as a

reference to petitioners’ silence. Furthermore, the district court

instructed the jury that “ ‘no inference whatever may be drawn from the

election of a defendant not to testify’ ” (15 R. 3904-3905). It is well

settled that the jury is presumed to follow the court’s instructions. See

Carter v. Kentucky, 450 U.S. 288, 302-303 n.20 (1981); see also Tennes-

see v. Street, No. 83-2143 (May 13, 1985), slip op. 5 & n.6. Indeed, the

jury acquitted two of petitioners’ co-defendants who also did not testify

(see 18 R. 4015-4017), which demonstrates that the jury did not base its

determinations on a defendant's decision to remain silent. See United

States v. Young, slip op. 17 n.15.

?We note that there is some doubt as to whether the jury was in fact

erroneously instructed on this maiicy In the court of appeals, petition-

ers argued that the district court had c »rrectly instructed the jury and

the court reporter had erred in ‘ranser bing the court's jury charge. See

Hernandez-Cartaya C.A. Br. 3-44; Fernandez C.A. Br. 14-22. The

government argued that it was unclear from the record whether (1) the

district court had given the correct instruction and the court reporter

had incorrectly transcribed the instruction or (2) the district court had

misspoken and the court reporter correctly transcribed what the district

court had said. Gov't C.A. Br. 97-100. Moreover, we argued in the court

of appeals that there was no evidence that the transcript containing the

10

It is well settled that a single jury instruction may not be

considered in isolation, but must be viewed in the context of

the overall charge and the entire record of the trial. See

Henderson vy. Kibbe, 431 U.S. 145, 152, 153-156 (1977);

United States v. Park, 421 U.S. 658, 674-676 (1975); Cupp

v. Naughten, 414 U.S. 141, 146-147 (1973). Petitioners do

not claim that the district court’s oral jury instructions were

erroneous; on the contrary, petitioners themselves readily

acknowledge (Pet. 14) that “there is absolutely no evidence

of record that the trial court’s oral charge misstated the

burden of proof.” Moreover, as the court of appeals pointed

out (Pet. App. A8), the district court correctly stated on at

least 19 different occasions during its charge that the

government was required to prove beyond a reasonable

doubt that each defendant was guilty (15 R. 3904-3905,

3906, 3907, 3908 (twice), 3911, 3915, 3918-3919, 3922

(twice), 3924, 3926, 3927, 3928, 3930, 3931, 3932 (twice)).

The district court also made it clear that the evidence on

each count must prove beyond a reasonable doubt that

petitioners had committed the charged offense (Pet. App.

A8). Indeed, in instructions given side-by-side with the one

that petitioners challenge (id. at A7), the district court

clearly stated the correct burden of proof. And the court’s

charge that no one instruction could be considered in isola-

tion plainly reinforced these earlier, correct statements of

the law (15 R. 3903-3904). Accordingly, it would be unreal-

istic to conclude that the jury fastened upon a single errone-

ous charge and was thereby misled into believing that a

erroneous charge was the copy that was in fact given to the jury (ibid.).

At trial, none of the defendants asked to proofread the transcript; nor

did they seek to obtain a copy of those instructions. The court of

appeals, however, assumed that the erroneous charge had been deli-

vered orally and that the transcript submitted to the jury contained the

erroneous jury instruction. Pet. App. A7-A9. Because petitioners’ claim

must fail in any event, it is unnecessary to determine who is correct on

this score.

I]

lesser burden of proof was required. See United States v.

Vasilaky, 168 F.2d 191 (2d Cir. 1948); see also United States

v. Walsh, 627 F.2d 88, 92-93 (7th Cir. 1980); United States

v. Pepe, 501 F.2d 1142, 1144 (10th Cir. 1974); Hoover v.

United States, 358 F.2d 87, 88 (Sth Cir. 1966), cert. denied,

385 U.S. 822 (1966).®

3. Petitioners argue (Pet. 8-13) that the district court

erred in refusing to conduct a voir dire of the jury to

determine whether any jurors had read a newspaper article

relating to the trial that was published after the jury had

begun its deliberations. That fact-bound claim does not

warrant further review.

It is well settled that the district court “has substantial

discretion in deciding whether allegations [of prejudice

affecting the jury’s verdict] are of sufficient substance to

require investigation and, if so, how the investigation

should be conducted.” 3 C. Wright, Federal Practice and

Procedure: Criminal § 554, at 261-262 (1982) (footnote

omitted). The publication of a newspaper article that relates

to an ongoing trial does not invariably require a voir dire of

the jury to determine whether the jurors have read the

article and, if so, have been influenced by its contents.

Rather, the courts of appeals have recognized that a district

court is not required to interrogate the jury about publicity

concerning a trial unless the material goes beyond the

record on which the case is to be submitted to the jury and

*None of the cases cited by petitioners are to the contrary. See, e.g.,

Duns, v. Perrin, 570 F.2d 21, 24-25 (1st Cir.), cert. denied, 437 U.S. 910

(1978) (“reasonable doubt” defined erroneously three times and in a

manner that shifted the burden of proof to the defendant); United

States v. Corrigan, 548 F.2d 879, 883-884 (10th Cir. 1977) (self defense

instruction shifted burden of proof to defendant or lightened govern-

ment’s burden of proof); Notaro v. United States, 363 F.2d 169 (9th

Cir. 1966) (confusing jury charge on burden of proof relating to

entrapment).

12

raises serious questions of possible prejudice to the defend-

ant. See, e.g., United States v. Herring, 568 F.2d 1099, 1104

(Sth Cir. 1978); United States v. Lord, 565 F.2d 831, 838

(2d Cir. 1977); United States v. Perrotta 553 F.2d 247,

249-250 (Ist Cir. 1977); United States v. Jones, 542 F.2d

186, 194-195 (4th Cir.), cert. denied, 426 U.S. 922 (1976);

Gordon v. United States, 438 F.2d 858, 872-873 & nn.43-44

(Sth Cir.), cert. denied, 404 U.S. 828 (1971); see also United

States v. Taylor, 569 F.2d 448, 454 (7th Cir.), cert. denied,

435 U.S. 952 (1978); United States v. Abascal, 564 F.2d

821, 823-834 (9th Cir. 1977), certs. denied, 435 U.S. 942 and

953 (1978). In addition, the court may decline to question

the jury if there is no reasonable likelihood that prejudicial

material has reached the jury, such as where the allegedly-

prejudicial article “was published in a relatively obscure

manner” (United States v. Herring, 568 F.2d at 1105;

accord, United States v. Jones, 542 F.2d at 194; United

States v. Lord, 565 F.2d at 838; cf. United States ex rel.

Doggett v. Yeager, 472 F.2d 229, 239 (3d Cir. 1973), disap-

proved on other grounds, Murphy v. Florida, 421 U.S. 794

(1975)).° The initial determination whether publicity con-

tains material outside the record raising serious questions of

possible prejudice and whether the publicity was likely to

have reached the jury is largely committed to the trial

court’s discretion. See United States v. Jones, 542 F.2d at

194; United States v. Perrotta, 553 F.2d at 250; Gordon v.

United States, 438 F.2d at 872-873; see also United States

v. Abascal, 564 F.2d at 833; cf. United States v. Chiantese,

582 F.2d 974, 978-980 (Sth Cir. 1978), cert. denied, 441 U.S.

922 (1979).

'The cases cited by petitioners (Pet. 11 n.9) do not hold that the mere

possibility that jurors have been exposed to prejudicial publicity is

enough to require the court to conduct a voir dire of the jurors.

13

In this case, the court of appeals correctly held that the

district court did not abuse its discretion by declining to

question the jury regarding the article. The court of appeals

found that (Pet. App. Al3) “[mJost of the information

contained in the article did not go beyond the record as

developed at trial.” It is unnecessary to question the jury

where a newspaper article does not reveal information not

already before the jury. See, e.g., United States v. Herring,

568 F.2d at 1104; cf. Murphy v. Florida, 421 U.S. 794, 800

n.4 (1975). Moreover, the article did not reveal that peti-

tioners had previously been convicted for the same crimes;

it did not disclose incriminating evidence, such as a coerced

confession, that the court had suppressed from evidence; it

did not allege that petitioners had threatened a government

witness; and it did not speculate as to petitioners’ guilt or

innocence or discuss the merits of any defense they had

asserted. Factors such as these have commonly been present

in cases in which the courts of appeals have held that a

district court should have conducted a voir dire of the jury.

See, e.g., United States v. Herring, 568 F.2d at 1104-1105;

United States v. Lord, 565 F.2d at 838.'°

!ONone of the vast number of cases cited by petitioners conflicts with

the decision in this case. For instance, this was not a case where the trial

proceedings themselves were infected by prejudicial conduct. See, e.g.,

Sheppard v. Maxwell, 384 U.S. 333 (1966). The article did not assert

that petitioners had previously been convicted of the same offenses

under consideration, but that their convictions had been reversed on

appeal. See, e.g., United States v. Attell, 655 F.2d 703, 704-705 (Sth

Cir. 1981); United States v. Williams, 568 F.2d 464, 466 (Sth Cir. 1978).

There was no allegation that petitioners had harmed or threatened a

government witness. See, e.g., United States v. Herring, supra; United

States v. Lord, supra. The article did not state that petitioners had

previously been convicted of a crime or that petitioners had been

accused of any offense other than those of which the jury was already

aware. See, e.g., Marshall v. United States, 360 U.S. 310, 311-313

(1959); United States v. Trapnell, 638 F.2d 1016, 1021-1022 (7th Cir.

1980). See page 14 note 11, infra. Moreover, the article did not refer to

any actions taken by petitioners or others involved in the crimes at issue

14

Petitioners claim (Pet. 11) that they were prejudiced by

“the revelation of unflattering information * * * unrelated

to the specific charges” against them. But much of this

information was brought out by the defense at trial, often

during cross-examination of government witnesses.'! The

that were inconsistent with petitioners’ claim of innocence. See, e.g.,

Goins v. McKeen, 605 F.2d 947, 949-954 (6th Cir. 1979); United States

v. Pomponio, 517 F.2d 460, 462-463 (4th Cir.), cert. denied, 423 U.S.

1015 (1975).

'!For example, the article stated (Pet. App. A20-A22) that petitioner

Hernandez-Cartaya was a veteran of the Bay of Pigs; that the detend-

ants, like several of the government’s witnesses, shared certain privi-

leges at WFC, such as “expense accounts, private loans, luxury cars and

big salaries”; and that WFC was rumored to be “linked” to the CIA, to

Fidel Castro, or to drug trafficking, and that “WFC was a large-scale

swindle.” However, it was no secret to the jurors that petitioner

Hernandez-Cartaya was a veteran of the Bay of Pigs (10 R. 2393; 12 R.

3196). Similarly, the jury was well aware of the large salaries and

perquisites that the senior officers of WFC received (see, e.g., 6 R. 987,

997, 1000-1004, 1016-1017, 1045-1046, 1132-1133; 7 R. 1216-1217,

1219-1243, 1317-1318, 1330-1340, 1348-1380; 8 R. 1791-1853; 9 R.

1969-2000, 2006, 2184; 10 R. 2373-2376, 2460-2466, 2497-2499, 2543-

2545, 2558-2569; 11 R. 2687, 2701-2704, 2713-2716, 2807-2809, 2862-

2865, 2870-2871; 13 R. 3402-3405, 3409-3410, 3419-3420). Indeed,

much of the government’s proof consisted of demonstrating that por-

tions of the cash bonuses given to WFC senior officials were applied

towards various loans that they had previously received (see, e.g., 6 R.

1000-1010, 1019-1030; 7 R. 1219-1221, 1330-1340, 1348-1380; 8 R.

1691-1696; 9 R. 2100-2103; 10 R. 2455-2457, 2553-2555, 2559-2566; GX

49, 52, 53A-53C, 68-71, 80, 152, 163). In addition, one of petitioner

Hernandez-Cartaya’s character witnesses brought out petitioner’s links

to Cuba (12 R. 3291-3294), and the allegations reported in the Miami

Herald that WFC was a “large-scale swindle” (Pet. App. A22) came out,

as the article itself notes (id. at A23), during the cross-examination of a

government witness by counsel for petitioner Fernandez (11 R. 2763-

2765, 2773-2774). Indeed, the article specificaily noted that allegations

such as the last one were merely rumors and that no criminal charges

had been filed. Thus, the article tended to discredit, rather than to

reinforce, various allegations of possible wrongdoing.

Similarly, defense cross-examination elicited information regarding

WFC’s connections with the CIA (8 R. 1575-1576); certain bank frauds

(9 R. 1908, 2049-2056, 2167-2168; 10 R. 2620; 11 R. 2771-2772, 2917; 12

15

article also expressly stated that most of the items cited by

defendants as prejudicial were merely rumors and unproven

allegations; the article itself thus contained a warning on its

face regarding the truth of these items. Petitioners also

argue (Pet. 10) that a quotation in the article from the

district court could have misled the jury that the govern-

ment need not prove that they had acted with criminal

intent.!* But the court repeatedly instructed the jury to the

contrary (15 R. 3914, 3915, 3918, 3922, 3923, 3924, 3925,

3926, 3928, 3929, 3930, 3931, 3932). The jurors thus could

not have been misled by this aspect of the article. Petitione:s

also claim (Pet. 4) that the article, by quoting the district

court’s finding that the government had proved that a con-

spiracy had existed, could have prejudiced the jury’s con-

sideration of the evidence.!’ But the district court carefully

instructed the jury on numerous occasions that the govern-

ment was required to prove its case beyond a reasonable

doubt (pages 5, 10, supra). In any event, the district court is

R. 3244-3245); phony passports (10 R. 2592-2606, 2620-2621); illegal

commissions and political payoffs (6 R. 1035, 1038-1041; 7 R. 1440,

1447, 1465-1466; 9 R. 1879, 2027-2030; 11 R. 2763-2765); and various

government investigations of WFC and its officers (see 9 R. 1894-1895,

1908-1913, 2049-2051, 2055-2056, 2168-2170; 12 R. 3244-3245). There

was also testimony, again brought out primarily by the defendants, that

petitioner Hernandez-Cartaya went to Ajman to resolve a dispute the

WFC bank was having with that nation’s government (9 R. 2167-2168;

10 R. 2592-2606, 2620-2621; 11 R. 2917-2918, 2921, 2923). Further-

more, the defense also brought out that Cartaya had escaped from

Ajman using a phony passport (10 R. 2592-2606, 2620-2621).

'? As support for this argument, petitioners rely upon a quotation in

the article of a remark by the district court that “ [t]he government says

that Mr. Cartaya received a bonus of $50,000 and he didn’t report it. If

you believe he got it, then he’s guilty’ ” (Pet. App. A19-A20).

'3The article stated (Pet. App. A21): “[Judge] Gonzalez ruled last

Friday that ‘there is substantial independent evidence of a conspiracy.’

He refused to dismiss the conspiracy charges after [the prosecutor]

ended prosecution testimony.”

ae ee ae

16

entitled to comment upon the evidence at trial (see Quercia

v. United States, 289 U.S. 466, 469 (1933)), and the com-

ment quoted here was unlikely to have caused petitioners

prejudice. Beyond that, only one article was at issue, and it

did not appear in a prominent location (i.e., it appeared on

the third page of the local section of the Miami Herald).

Compare, e.g., United States v. Lord, 565 F.2d at 838;

United States v. Perrotta, 553 F.2d at 249.

Finally, the district court repeatedly instructed the jury

not to listen to or read any media accounts of the proceed-

ings (6 R. 899-901, 1210; 7 R. 1505; 8 R. 1861; 9 R. 2248-

2249; 10 R. 2629-2630; 11 R. 2937-2938; 12 R. 3307; 13 R.

3641-3642; 14 R. 3887; 15 R. 3943, 3964; 16 R. 3971; 17 R.

4000; 18 R. 4007)'* and to base its verdict “ ‘solely upon

what you hear in this courtroom and not what somebody

else says happened in the courtroom’ ”(6 R. 900; see also 13

R. 3461; 15 R. 3903-3904, 3461). These instructions further

negated any realistic danger that the article could have

prejudiced the jury. See, e.g., United States v. Herring, 568

F.2d at 1105.'5 Accordingly, the court of appeals correctly

held that the district court did not abuse its discretion by

declining to voir dire the jury on this matter.'®

The district court also instructed the jurors at the outset of trial not

to read any newspaper article with a headline referring to a tax trial (6

R. 900).

'5Petitioners err in asserting (Pet. 12) that a court’s instructions to the

jury to avoid reading about a pending irial may not be considered, along

with an article’s contents, in determining whether the jury should be

questioned. While such instructions by themselves may not be sufficient

to justify declining to question the jury, they are nonetheless a legitimate

factor to consider. See United States v. Herring, 568 F.2d at 1104-1105;

Gordon v. United States, 438 F.2d at 873-874; see also United States v.

Ricardo, 619 F.2d 1124, 1132 (Sth Cir.), cert. denied, 449 U.S. 1063

(1980).

16 Moreover, we also argued in the court of appeals (Gov't C.A. Br.

92) that, given the overwhelming proof of petitioners’ guilt, any error

was harmless. See United States v. Trapnell, 638 F.2d at 1023-1024.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

GLENN L. ARCHER, JR.

Assistant Attorney General

MICHAEL L. PAuP

ROBERT E. LINDSAY

ALAN HECHTKOPF

Attorneys

JULY 1985

DOJ-1985-07