# Opposition Brief — Hernandez-Cartaya v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 816

## Text

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,
Pe Fe Oe -n4' 2 ka veuenee beer eeek eed 12
Statutes:
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ee a CHE ice nh ib 000000 00K65 45450050 2
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2537%3A2. Public record. Not legal advice.