Opposition Brief — Dean v. United States

Supreme Court, U.S,

FILED

(2) OCT 91 1985

No. 85-109 JOSEPH F. SPANIOL, JR,

CLERK

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

KATHRYN DEAN, PETITIONER

V.

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

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

SIDNEY M. GLAZER

Attorney

Department of Justice

| Washington, D.C. 20530

(202) 633-2217

“BEST AVAILABLE COPY & °

QUESTIONS PRESENTED

1. Whether the district court failed to make sufficiently

detailed voir dire inquiries concerning prospective jurors’

attitudes about race, welfare benefits, and the testimony of

law enforcement officers.

2. Whether the district court erred in admitting evidence

of petitioner’s involvement in similar crimes.

(I)

Opinion below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Aldridge v. United States,

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Ham v. South Carolina, 409 U.S. 524 .....

Ristaino v. Ross, 424 U.S. 589 ...........

Rosales-Lopez v. United States,

fs GE Say re

United States v. Bailleaux, 685 F.2d 1105 ..

United States v. Baldwin, 607 F.2d 1295 ...

United States v. Beechum, 582 F.2d 898,

cert. denied, 440 U.S. 920 ..............

United States v. Gustafson, 728 F.2d 1078,

cert. denied, No. 83-1931

SOU TEI og wp gab eisvviecccccoccese

United States v. Jardina, 747 F.2d 945,

cert. denied, No. 84-6232

en walee aad 6 b0 46 0be%

United States v. Johnson, 618 F.2d 60 ....

United States v. Jones, 722 F.2d 528 ......

(II)

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IV

Page

Cases—Continued:

United States v. Spaar, 748 F.2d 1249 .......... 6

United States v. Toomey, 764 F.2d 678 ....... 4,6

United States v. Vadino, 680 F.2d 1329 ........ 6

Statute and rules:

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Pas Oe A Os ED ns no kc oS aK EeS ato obese 4

Fed. R. Evid. :

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In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-109

KATHRYN DEAN, PETITIONER

V.

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. 1-13) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on May

23, 1985. The petition for a writ of certiorari was filed on

July 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 Northern District of California, petitioner was con-

victed of theft of government property, in violation of 18

U.S.C. 641. She was sentenced to two years’ imprisonment

‘and a $10,000 fine. She was also ordered to pay $7000 in

restitution. The court of appeals affirmed (Pet. App. 1-13).

(1)

2

1. The evidence at trial, summarized in the opinion of the

court of appeals (Pet. App. 2-3), established that between

June 1982 and September 1983 petitioner received and

cashed 24 federal welfare checks that were fraudulently

issued by Willette Hutcherson, a county welfare agency

employee (id. at 2). The checks, issued under the Aid to

Families with Dependant Children (AFDC) program,

totaled almost $15,000. Petitioner asserted, as her sole

defense, that she had received a call from an unidentified

person at the welfare office who told her that she was

entitled to the checks as retroactive benefits under a pre-

viously denied welfare application (id. at 2; Tr. 338-340).

However, petitioner had no children, had not applied for

AFDC benefits, and returned one-third of the proceeds

from each check to Hutcherson (id. at 2-3; Tr. 100, 330,

399-400).

2. Prior to trial, petitioner submitted 176 proposed voir

dire questions (Pet. App. 3). Appr: “imately 30 of the ques-

tions addressed the prospective ors’ attitudes toward

blacks. Other questions addressed their attitudes toward

the offense charged and the credence they would give to the

testimony of law enforcement officers. The district judge

denied petitioner’s specific requests, but asked questions on

some of the issues raised by petitioner’s proposed questions.

Among his questions, he asked whether the prospective

jurors had observed “anything whatever about the defend-

ant, which in any way, however subtly, might prejudice

[them]” (id. at 6; Tr. 42). He also asked whether there was

“anything in the nature of the offense charged” that affected

their impartiality (see id. at 8; Tr. 43).

During the trial, the district judge admitted evidence,

over petitioner’s objection, that petitioner had filed false

claims for prescription drugs (Pet. App. 9). He also admit-

ted testimony, over petitioner’s objection, that petitioner’s

3

activities were part of a much larger welfare fraud scheme

(id. at 11).

3. The court of appeals, applying an abuse of discretion

standard, held that the district judge conducted an adequate

voir dire (Pet App. 4-9). Relying on Rosales-Lopez v.

United States, 451 U.S. 182. (1981), it first concluded that

the judge was not obligated to conduct special questioning

concerning racial prejudice (Pet. App. 5). The court

observed that this case involved neither special circumstan-

ces nor reasonable possibility of racial prejudice (ibid.). It

suggested that the “better practice” might be to conduct

special questioning when the defendant is a member of a

racial minority (id. at 6), but held that the failure to do so

did not constitute reversible error (ibid.). The court also

noted that the district judge had asked, in general terms,

whether the jurors were in any way prejudiced against peti-

tioner (ibid.).

The court of appeals next suggested that the district judge

should have honored petitioner’s request for special ques-

tioning concerning potential bias in favor of law enforce-

ment testimony, but it concluded that the failure to do so in

this case did not constitute reversible error (Pet. App. 8).

The court noted that only one law enforcement officer

testified, his credibility was not disputed, and his testimony

did not conflict with petitioner’s testimony (ibid.). It further

ruled that the district court’s inquiry into juror prejudice

concerning the “offense charged” eliminated any need to

honor petitioner’s specific requests for voir dire on juror

attitudes toward welfare fraud (id. at 9).

Turning to the evidentiary challenges, the court con-

cluded that the district judge did not abuse his discretion in

admitting evidence indicating that petitioner had filed false

prescription drug claims with her former employer (Pet.

App. 9-11). The court observed that the probative value

of the evidence was not substantially outweighed by its

4

prejudicial effect (id. at 10-11). The court likewise affirmed

the district judge’s admission of testimony indicating that

petitioner's activities were part of a larger welfare fraud

scheme (id. at 11-13).

ARGUMENT

Petitioner contends (Pet. 9-23) that the trial court erred in

failing to make a more detailed inquiry into juror attitudes

about race, welfare benefits, and the weight to be given

testimony of law enforcement officers. She also renews her

challenges to the admission of evidence indicating petition-

er’s involvement in other wrongful activity. These argu-

ments were properly rejected by the court of appeals.

1. “Because the obligation to impanei an impartial jury

lies in the first instance with the trial judge, and because he

must rely largely on his immediate perceptions, federal

judges have been accorded ample discretion in determining

how best to conduct the voir dire.” Rosales-Lopez v.

United States, 451 U.S. 182, 189 (1981) (plurality opinion);

see Ham v. South Carolina, 409 U.S. 524, 528 (1973);

Aldridge v. United States, 283 U.S. 308, 310 (1931). The

court may conduct the voir dire itself or allow the parties to

conduct it. Fed. R. Crim. P. 24a). In all events, it has “ ‘a

broad discretion as to the questions to be asked.’ ” Rosales-

Lopez, 451 U.S. at 189 (quoting Aldridge, 283 U.S. at 310).

Absent a showing of particularized need for a specia! line of

questioning, there is no abuse of discretion in refusing to

ask specific questions during the voir dire examination,

even though the questioning might theoretically aid the

defendant in exercising peremptory challenges. See, e.z.,

Unite.’ States v. Toomey, 764 F.2d 678, 682 (9th Cir. 1985)

(the trial court did not abuse its discretion in refusing to

inquire as to jurors’ attitudes toward narcotics); United

States v. Jones, 722 F.2d 528, 529-530 (9th Cir. 1983)

(absent a showing of a reasonable possibility of prejudice,

the trial court did not abuse its discretion in refusing to

5

inquire whether jurors were biased against defense of

coercion).

a. These general principles apply in the case of voir dire

requests directed toward racial or ethnic bias. In Rosales-

Lopez, a majority of the Court agreed that there is a consti-

tutional obligation to make specific inquiries concerning

racial bias only when racial issues are “ ‘inextricably bound

up with the conduct of the trial,’ ” 451 U.S. at 189 (quoting

Ristaino v. Ross, 424 U.S. 589, 597 (1976)); see 451 U.S. at

194-195 (Rehnquist, J., concurring in the result).' Peti-

tioner failed to show that racial issues are present in the

instant case. Significantly, this case involves theft of

government property rather than an interracial crime. As

the court of appeals observed (Pet. App. 5), this case, like

Rosales- Lopez, simply involves government prosecution of

a minority defendant and raises no “special circumstances”

or reasonable possibility of racial prejudice. Contrary to

petitioner’s contention (Pet. 13), there is no reason to

assume that a jury will be influenced by racial prejudice

simply because a black defendant is tried for welfare fraud.

Moreover, the district judge addressed the possibility of

racial prejudice by asking the veniremen if they observed

‘In Rosalez-Lopez, a defendant of Mexican descent was charged with

smuggling aliens into the United States. He contended that the trial

court committed reversible error in denying his request for a voir dire

examination of prospective jurors avout racial or ethnic prejudice. This

Court rejected the contention, indicating that the federal courts must

make such an inquiry where “the external circumstances of the case

indicate a reasonable possibility that racial or ethnic prejudice will

influence the jury’s evaluation of the evidence.” 451 U.S. at 192-193

(White, J.). Because the defendant in Rosales-Lopez failed to demon-

strate special circumstances and the trial court eliminated the possibility

of undisclosed racial prejudice through its other inquiries, this Court

held that the trial court did not abuse its discretion in refusing to make

the requested inquiries concerning ethnic bias. 451 U.S. at 194; id. at

194-195 (Rehnquist, .1., concurring in the result).

6

anything about petitioner “which in any way, however

subtly, might prejudice” them against her. See Pet. App.

5-6.

b. The district judge also acted within his discretion

in refusing to inquire into the prospective jurors’ possible

bias respecting testimony from law enforcement officers. As

petitioner herself acknowledges (Pet. 19-20), the need for

such an inquiry depends upon the facts of each case. The

failure to conduct such an inquiry cannot constitute revers-

ible error where, as here, there was no dispute concerning

the credibility of the single law enforcement officer who

testified. See, e.g., United States v. Vadino, 680 F.2d 1329,

1336-1337 (11th Cir. 1982); United States v. Spaar, 748

F.2d 1249, 1253-1254 (8th Cir. 1984); see also United States

v. Baldwin, 607 F.2d 1295, 1298 (9th Cir. 1979). Indeed, as

the court of appeals noted (Pet. App. 8), the officer’s tes-

timony did not significantly conflict with petitioner’ testi-

mony.

c. Likewise, the district court acted within its discretion

in refusing to ask petitioner’s requested questions concern-

ing the prospective jurors’ attitudes toward welfare fraud.

Even assuming that a trial court should inquire into juror

attitudes toward the crimes charged, the district judge sub-

stantially fulfilled petitioner’s request by asking “whether

there was ‘anything in the nature of the offense charged’ ”

that might prejudice the jurors against petitioners (Pet.

App. 8-9). See Aldridge, 283 U.S. at 310 (recognizinz the

trial judge’s “broad discretion as to the questions to be

asked”); United States v. Toomey, 764 F.2d at 682.

2. Petitioner also contends (Pet. 24-27) that the district

court erred in admitting evidence of petitioner’s other

wrongful conduct and evidence indicating that her iliega!

activities were part of a larger welfare fraud scheme. These

claims are insubstantial. v

7

a. The government offered testimony from Mikela

Turner-Stroud, petitioner’s fellow employee at Blue Cross

Insurance Company (Pet. App. 9-10; Tr. 207). The witness

testified, among other matters, that petitioner had admitted

submitting false drug prescription claims to Blue Cross

during the time that she was cashing AFDC checks (Tr.

266-268).

The district judge did not abuse his discretion in permit-

ting this testimony. Evidence of prior wrongful conduct is

admissible to prove motive, knowledge, or intent (Fed. R.

Evid. 404(b)), although the evidence may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice (Fed. R. Evid. 403). That determination

rests within the discretion of the district court. See, e.g.,

United States v. Jardina, 747 F.2d 945, 952 (Sth Cir., 1984),

cert. denied, No. 84-6232 (Mar. 18, 1985); United States v.

Gustafson, 728 F.2d 1078, 1082-1084 (8th Cir. 1984), cert.

denied, No. 83-1931 (Nov. 5, 1984); United States v. Bail-

leaux, 685 F.2d 1105, 1110-1112 (9th Cir. 1982).

Petitioner claimed, as her sole defense, that she did not

intentionally engage in welfare fraud because she thought

that the AFDC checks were properly issued to her. Turner-

Stroud’s testimony, demonstrating petitioner’s similar fraud-

ulent activities contemporaneous with the welfare fraud,

was thus relevant to prove intent. The court could reason-

ably conclude that its probative value outweighed the pos-

sibility of unfair prejudice.* Furthermore, the district judge

?The Ninth Circuit has suggested that such evidence, at least when

involving crimes, should be “clear and convincing.” See United States

v. Bailieaux, 685 F.2d 1105, 1109-1110 (9th Cir. 1982). The court of

appeals, citing Bailleaux, agreed with the district court that the evidence

was admissible (Pet. App. 10-11). The evidence, a specific admission

from petitioner to a fellow employee, had clear and convincing proba-

tive value. Notably, other courts do not require evidence admitted

8

did not err in failing to give a cautionary instruction con-

cerning Turner-Stroud’s testimony since none was re-

quested (Pet. App. 11).

b. Petitioner also challenges (Pet. 26-27) the court’s

admission of testimony from FBI Agent Jason Moulton

indicating that petitioner’s activities were part of a large-

scale welfare fraud scheme. See Pet. App. 11-13; Tr. 289.

That brief discussion of the larger scheme was necessary to

explain the government’s grant of prosecutorial immunity

to Turner-Stroud. The judge gave a cautionary instruction

explaining the purpose of the testimony (Pet. App. 12-13).

The instruction is presumed effective to remedy any poten-

tial prejudice. See, e.g., United States v. Johnson, 618 F.2d

60, 62 (9th Cir. 1980). Thus, the court of appeals correctly

rejected petitioner’s contention of reversible error.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

SIDNEY M. GLAZER

Attorney

OcTOBER 1985

under Rule 404(b) to meet a “clear and convincing” probity standard.

See United States v. Jardina, 747 F.2d at 952; United States v. Bee-

chum, 582 F.2d 898, 913 (Sth Cir. 1978) (en banc), cert. denied, 440 U.S.

920 (1979); but see United States v. Gustafson, 728 F.2d at 1083.

DOJ-1985-10