Opposition Brief — Benz v. United States

7 No. 84-1646

| Ju the Supreme Court of the Hnited States

; Octoser TERM, 1984

| AucGust Cari BENZ, PETITIONER

; v.

Unrte> 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

STEPHEN S. TROTT

Assistant Attorney General

Tuomas E. Bootu

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

- BESTAVAILABLE COPY |

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QUESTIONS PRESENTED

1. Whether the government’s failure to disclose vouchers

reflecting payments to a witness was harmless error where

government witnesses testified about the payments at trial.

2. Whether the trial court’s instruction that the jury dis-

regard the nonresponsive answer of a witness cured any

prejudice from the witness’s comment.

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Arizona v. Washington, 434 U.S. 497 .......... 5

Donnelly v. DeChristoforo, 416 U.S. 637 ....... 5

Francis v. Franklin, No. 83-1590

anne chee yeas ees esssee 5

Frazier v. Cupp, 394 U.S. 731 ........ccceeeees 5

Geders v. United States, 425 U.S. 80 ........... 5

Quercia v. United States, 289 U.S. 466 ......... 5

Shotwell Manufacturing Co. v. United States,

PM SUG G Gd Shab be oe Ce cn'e bees eo 5

Tennessee v. Street, No. 83-2143

ee ois Adnan o6 Pha seus cose 5

Throckmorton v. Holt, 180 U.S. 552 ........... 5

United States v. Agurs, 427 U.S. 97 ............ 3

United States v. Del Toro Soto,

CED ik aD A LOi paen Nees bbe cccesas ous 4

United States v. Farid, 733 F.2d 1318 .......... 3

United States v. Hasting, 461 U.S. 499 ......... 5

(IIT)

Page

Cases—Continued:

United States v. Laymon, 621 F.2d 1051 ........ 7

United States v. Lemus, 542 F.2d 222,

CE I re a EE. bons Sho s so sccutiaves 4

United States v. Petito, 671 F.2d 68,

COTE. GOUNNG, GIP TG, BOO oc cccccccscccccsess 4

United States v. Phillips, 482 F.2d 1355,

Cie, CR, GE re EP vivo acca ce ncdsciacss 4

United States v. Sperling, 726 F.2d 69,

cert. denied, No. 83-1828 (June 11, 1984) ...... 4

United States v. Wables, 731 F.2d 440 ......... 4

Statutes and rule:

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IV

In the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-1646

AUGUST CARL BENZ, PETITIONER

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-A19) is

reported at 740 F.2d 903.

JURISDICTION

The judgment of the court of appeals was entered on

September 4, 1984. A petition for rehearing was denied on

February 19, 1985 (Pet. App. B1-B2). The petition for a writ

of certiorari was filed on April 19, 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 Middle District of Florida, petitioner was convicted

on one count of conspiracy to import marijuana and to

possess marijuana with intent to distribute, in violation of

21 U.S.C. 846 and 963, and on one count of submitting a

(1)

2

false statement, in violation of 18 U.S.C. 1001. He was

sentenced to concurrent terms of imprisonment cf five years

on the conspiracy count and one year on the false statement

count. The court of appeals affirmed (Pet. App. Al-A19).

The evidence at trial, as summarized by the court of

appeals (Pet. App. A2-A5), is as follows: petitioner was a

member of a drug smuggling conspiracy that imported

theusands of pounds of marijuana from the Lesser Antilles

to Florida aboard petitioner’s sailboat. After the smugglers

had unloaded the marijuana, they left the boat in waters off

the Florida coast. Customs officers later discovered the

abandoned boat and, upon finding marijuana residue on its

deck, seized the vessel. After petitioner was notified of the

seizure, he moved for remission or mitigation of the forfei-

ture, falsely contending that the boat had been chartered to

“Edgar Picado” at the time of the seizure. In fact, co-

conspirator Laurie Miller had forged the signature of

“Edgar Picado” on the charter agreement.

ARGUMENT

1. Petitioner contends (Pet. 14-23) that, despite his re-

quest for discovery, the government withheld exculpatory

evidence. This contention lacks merit.

The prosecution’s response to petitioner’s general pretrial

request for discovery did not include production of certain

receipts issued by the Drug Enforcement Administration

(DEA). During the trial, however, Jim Hunt, an accom-

plice, and DEA Agent Haines, both testifying for the

government, acknowledged on cross-examination that the

DEA had made payments to Hunt for subsistence and

expenses (Pet. App. A17). Petitioner never asked for pro-

duction of the receipts reflecting those payments, but his

counsel “delved thoroughly and extensively into the

amounts and nature of the payments, and argued them to

the jury as Hunt’s ‘license to lie.’ ” Jbid. After trial, peti-

tioner obtained copies of the DEA receipts when they were

ee oe

3

provided to a co-conspirator. The receipts are preprinted

with the term “purchase of information/evidence transac-

tion” across the top and they indicate that DEA paid Hunt

for “information.” Pet. App. Al6-A18; id. at C3-C9. Peti-

tioner contends that he was entitled to obtain these receipts

for use at trial.

When a defendant makes a general request for exculpa-

tory material and the material is not provided, he is not

entitled to a new trial unless the material creates a reason-

able doubt that did not otherwise exist. United States v.

Agurs, 427 U.S. 97, 112 (1976). That is precisely the stand-

ard the court of appeals employed (Pet. App. A17) in con-

cluding that the DEA receipts would not have created a

reasonable doubt of petitioner’s guilt. Thus, the petition

involves the application of settled principles of law to the

particular facts of this case.

In any event, the substance of the vouchers—the DEA

payments to Hunt—was explored at length during the trial.

It is true that the witnesses characterized the payments as

expenses while the forms described them as payment for

information, but as the court of appeals noted (Pet. App.

A17-A18), the term “purchase of information” on the

standard receipt form “would likely have been explained as

a usual administrative classification of witness payments.”

Indeed, the government would hardly use a preprinted term

on the receipt that carried the sinister connotation that

petitioner ascribes to it. When viewed in the context of the

evidence of petitioner’s guilt, the court of appeals was

plainly correct in holding that the omission of the receipts—

which would have added nothing material to the evidence

already before the jury—did not create a reasonable doubt.

See, e.g., United States v. Farid, 733 F.2d 1318, 1320-1321

4

(8th Cir. 1984); United States v. Sperling, 726 F.2d 69, 72

(2d Cir. 1984), cert. denied, No. 83-1828 (June 11, 1984).'

2. Petitioner also contends (Pet. 24-26) that a nonre-

sponsive answer by a witness was prejudicial and that the

court’s instruction to the jury to disregard the comment was

an inadequate cure. This contention lacks merit.

On cross-examination, petitioner’s counsel asked Hunt

for the date on which he began his sailmaking business.

Hunt was unsure of the date, but said that it was the same

month Hunt’s partner took “ ‘his boat down to Columbia

with Carl and Tom something, to go and pick up a load.’ ”

‘Petitioner does not have a valid claim under the Jencks Act, 18

U.S.C. 3500, because he failed to demand the receipts following the

direct examination of Hunt or Haines. United States v. Petito, 671

F.2d 68, 73-74 (2d Cir.), cert. denied, 459 U.S. 824 (1982); United States

v. Lemus, 542 F.2d 222, 223 (4th Cir. 1976), cert. denied, 430 U.S. 947

(1977). Although petitioner contends that he relied upon the prosecu-

tor’s pretrial assertion that all Section 3500 statements had been deli-

vered to the defense, and thus made no demand at trial, this reliance was

unreasonable under the circumstances. The prosecutor’s statement that

all Section 3500 statements were delivered to the defense occurred

during a discussion concerning whether petitioner’s counsel might be a

witness and was intended mercly to advise the court that the defense had

enough information to evaluate the decision to have the attorney testify

(35 R. 8-19). Nothing in the prosecutor’s statement was intended to

relieve counsel from requesting Section 3500 statements during trial.

And once Haines and Hunt testified about the payments, petitioner

should have known that the government would have some record of the

disbursements. Accordingly, petitioner should have requested the

receipts at trial after Hunt’s and Haines’ direct examination. In any

event, for the reasons stated above, the failure to produce the receipts

was harmless and did not affect the fairness of the trial. United States v.

Phillips, 482 F.2d 1355, 1356-1357 (9th Cir. 1973), cert. denied, 419 U.S.

847 (1974) (FBI payment receipts). See also United States v. Del Toro

Soto, 728 F.2d 44, 48 (1st Cir. 1984); United States v. Wables, 731 F.2d

440, 448-449 (7th Cir. 1984). Finally, petitioner has no claim under Rule

16, Fed. R. Crim. P., because that rule incorporates the limitations of

the Jencks Act on discovery of witness statements. Fed. R. Crim. P.

16(a)(2).

5

Pet. App. A18. Petitioner’s counsel immediately objected

and requested a mistrial. The court denied the mistrial

motion but struck the answer from the record and instructed

the jury to disregard it (ibid.).

It is of course within the discretion of the trial judge

whether to grant a mistrial, because he is in the best position

to evaluate the effect on the jury of events at trial. United

States v. Laymon, 621 F.2d 1051, 1053 (10th Cir. 1980).

For that reason, the trial court’s determination whether a

mistrial is warranted is entitled to special weight. Arizona

v. Washington, 434 U.S. 497, 510 (1978). “A criminal trial

does not unfold like a play with actors foliowing a script;

there is no scenario and can be none. The trial judge must

meet situations as they arise and to do this must have broad

pewers to cope with the complexities and contingencies

inherent in the adversary process.” Geders v. United

States, 425 U.S. 80, 86 (1976); see also Quercia v. United

States, 289 U.S. 466, 469 (1933). Ordinarily, the effect of

even improper evidence can be remedied by admonishing

the jury to disregard it. See Donnelly v. DeChristoforo,

416 U.S. 637, 644 (1974); Frazier v. Cupp, 394 U.S. 731,

735-736 (1969); Throckmorton v. Holt, 180 U.S. 552, 567

(1901). It is, of course, presumed that the jury will obey the

court’s instruction. See Tennessee v. Street, No. 83-2143

(May 13, 1985), slip op. 5, 7-8; Francis v. Franklin, No.

83-1590 (Apr. 29, 1985), slip op. 16n.9; Shotwell Manufac-

turing Co. v. United States, 371 U.S. 341, 367 (1963). In

any event, as the court of appeals correctly found, Hunt’s

vague and fleeting remark was not prejudicial to petitioner.

And in view of the ample evidence of petitioner’s guilt, any

error was harmless. See United States v. Hasting, 461 U.S.

499 (1983).

6

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

THOMAS E. BooTH

Attorney

JUNE 1985

DOJ-1985-06

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