Opposition Brief — Thomas v. United States

| Supreme Court, U.S,

\ FILED

® OcT 17 1085

JOSEPH F. SPANIOL, JR,

CLERK

No. 85-423

Ju the Supreme Court of the Mnited States

OCTOBER TERM, 1985

CARL WESLEY THOMAS, PETITIONER

v,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Acting Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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BEST AVAILABLE COPY SiN

TABLE OF AUTHORITIES

Cases:

United States v. Bell, 573 F.2d 1040 .........

United States v. Drougas, 748 F.2d8 ........

United States v. Johnson, 713 F.2d 633,

cert. denied, 465 U.S. 1081 ................

United States v. Khan, 728 F.2d 676 .........

United States v. Little, 753 F.2d 1420 ........

United States v. Lovasco, 431 U.S. 783 .......

United States v. McConnell,

Pe eee cise waah ec ieteee ee

United States v. Oxford, 735 F.2d 276 .......

United States v. Parodi, 703 F.2d 768 ........

United States v. Provenzano, 688 F.2d 194,

cert. dented, 459 US. 1071 ......cccccceess

United States v. Seifert, 648 F.2d 557 ........

United States v. Whitley, 734 F.2d 1129 ......

Statutes and rules:

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Fed. R. Crim. P. :

Prt. L ehaa s We awed bbs eb O eK eres

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(1)

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-423

CARL WESLEY THOMAS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioner contends that the district court abused its dis-

cretion by refusing to grant a severance and that it commit-

ted plain error by failing to reconsider its ruling on the

admissibility of co-conspirator statements at the close of all

of the evidence.

1. Following a jury trial in the United States District

Court for the Western District of Missouri, petitioner was

convicted on six counts of interstate transportation of

stolen property, in violation of 18 U.S.C. 2314, three counts

of interstate travel in aid of a racketeering enterprise, in

violation of 18 U.S.C. 1952, and one count of conspiracy to

commit these offenses, in violation of 18 U.S.C. 371. He was

sentenced to a total of 15 years’ imprisonment, fined

(1)

2

$90,000, and ordered to make restitution of an additional

$90,000. The court of appeals affirmed (Pet. App. Al-A43).!

The evidence at trial, the sufficiency of which is not in

dispute, is summarized in the opinion of the court of

appeals (Pet. App. A4-A7). Briefly, it showed that peti-

tioner and others conspired to gain control of the Tropicana

casino in Las Vegas, Nevada in order to “skim” money by

removing cash receipts before they were recorded in the

casino’s books. Co-conspirator Joseph Agosto met in Jan-

uary 1975 with Nick Civella and petitioner’s co-defendants

Carl DeLuna and Carl Civella to plan Agosto’s clandestine

infiltration of the casino. Later that year, these men

“decided to use [petitioner] to take charge of the skimming

at the Tropicana” (id. at AS). Petitioner recommended the .

hiring of a casino manager who, with an assistant, “were to

do the actual skimming under [petitioner’s] supervision”

(id. at A6). By the middle of 1978, over $40,000 per month

was being skimmed from the casino. When Agosto and the

Civellas suspected that the manager was also skimming on

his own account, they instructed petitioner to “do a study of

the Tropicana to determine if unauthorized skimming was

occurring” (ibid.). Later :n 1978, petitioner met with

Agosto, DeLuna, and the Civellas to discuss more efficient

means of skimming (id. at A7). In February 1979, $80,000

in skimmed cash was transported from Nevada to Missouri

(ibid.). Petitioner admitted in a recorded conversation “that

he had been involved in skimming at many casinos in Las

Vegas for many years” (id. at A23).

2. The court of appeals affirmed (Pet. App. Al-A43).

Noting that petitioner and his co-defendants were properly

joined for trial under Fed. R. Crim. P. 8(b) (id. at A31), the

'Petitioner’s co-defendants Carl DeLuna, Carl Civella, Charles

Moretina, and Anthony Chiavola, Sr., were each convicted on the

conspiracy count and various substantive counts. Co-defendant Peter

Tamburello was acquitted.

3

court of appeals held that the district court did not abuse its

discretion in refusing to grant petitioner a severance under

Fed. R. Crim. P. 14.2 After “carefully review[ing] the

record,” the court of appeals rejected petitioner’s argument

that a severance was required so that he could obtain the

testimony of co-defendant Carl Civella, concluding that a

severance would have been of little value because Civella’s

“testimony would have been subject to substantial damag-

ing impeachment” (id. at A34). The court similarly rejected

petitioner’s contention that he was precluded from testify-

ing on his own behalf at the joint trial out of a fear for his

safety, noting that the risk have would been substantially

the same if he had testified at a separate trial (id. at A35).

Finally, the court of appeals upheld the admission at trial of

statements of petitioner’s co-conspirators under Fed. R.

Evid. 801(d)(2)(E) on the ground that the district court’s

finding that the statements were made in furtherance of the

conpsiracy was not clearly erroneous (id. at A13).

3. Petitioner argues that the district court abused its

discretion by refusing to grant him a severance sc that he

could be tried separately from his four co-defendanis.

a. Petitioner contends first (Pet. 8-18) that a severance

was required so that he could have the benefit of the testi-

mony of co-defendant Carl Civella, who did not take the

stand at the joint trial. The court of appeals in this case

applied the same standard consistently set forth by other

courts of appeals, upholding the denial of a severance where

a co-defendant’s testimony would be subject to substantial

impeachment. See, e.g., United States v. McConnell, 749

*Fed. R. Crim. P. 14 provides in pertinent part that “{i}f it appears

that a defendant * * * is prejudiced by a joinder of offenses or of

defendants * * *, the court may order an election or separate trials of

counts, grant a severance of defendants or provide whatever other relief

justice requires.”

4

F.2d 1441, 1445 (10th Cir. 1984); United States v. Drougas,

748 F.2d 8, 19 (1st Cir. 1984); United States v. Parodi, 703

F.2d 768, 779 (4th Cir. 1983); United States v. Provenzano,

688 F.2d 194, 199 (3d Cir.), cert. denied, 459 U.S. 1071

(1982). None of the cases cited by petitioner (Pet. 12-13 n.3)

conflicts with this settled rule.’ The court of appeals’ fact-

bound conclusion that there was no abuse of discretion in

the denial of a severance here in light of the extent to which

Carl Civella’s testimony would have been subject to impeach-

ment on the basis of a tape recording of petitioner’s own

statements, written notes, and the testimony of government

witnesses (see Pet. App. Al3, A17 n.4, A23, A34) does not

warrant review by this Court.

b. Petitioner also argues (Pet. 18-25) that a severance

was required because he was precluded from testifying at

the joint trial out of fear for his safety. This claim is merit-

less. In support of his contention in the district court, peti-

tioner submitted two affidavits from his attorneys. These

were placed under seal, and the government has never had

‘Petitioner cites no case in which the denial of a motion to sever was

held to be an abuse of discretion where the co-defendant’s proffered

testimony was subject to substantial impeachment. United States v.

Khan, 728 F.2d 676, 679 (Sth Cir. 1984), United States v. Little, 753

F.2d 1420, 1446 (9th Cir. 1984), and United States v. Johnson, 713 F.2d

633, 642 (11th Cir. 1983), cert. denied, 465 U.S. 1081 (1984), all recog-

nized the relevance of the credibility of the proffered testimony in

reviewing rulings on motions to sever. United States v. Whitley, 734

F.2d 1129, 1139 (6th Cir. 1984), and United States v. Oxford, 735 F.2d

276, 280-281 (7th Cir. 1984), upheld denials of sevef gnce motions on

other bases without discussion of the question presented here. United

States v. Seifert, 648 F.2d 557, 563-564 (9th Cir. 1980), reversed the

denial of a severance motion where no question was raised as to the

credibility of the co-defendant’s testimony. Finally, petitioner quotes

(Pet. 13-14) United States v. McConnell, supra, out of context. The

court in that case exp essly recognized (749 F.2d at 1445) that the

likelihood of impeachment has consistently been taken into account by

the courts of appeals in reviewing motions to sever on the ground that

petitioner asserts.

5

access to them. At an in camera hearing, we acknowledged

that there was some danger to petitioner from persons in

Chicago who were not his co-defendants but observed that

these persons had no interest in whether petitioner obtained

a severance, so that the threat to him would be substantially

the same whether he testified at a joint trial or at a separate

one (I Tr. 16-18). The district court found after reviewing

the sealed affidavits that petitioner's fears were subjective (I

Tr. 14). The court of appeals, which also had access to the

affidavits, upheld the district court’s exercise of discretion

(Pet. App. A35). The petition provides no explanation of

how a severance could have protected petitioner from any

significant threat to his safety arising from the content of

testimony he allegedly would give. There is accordingly no

reason for further review.

4. Finally, petitioner contends (Pet. 25-29) that the dis-

trict court erred by failing to reconsider after the close of all

of the evidence its ruling, made when the government

rested, that certain statements were admissible under the

co-conspirator exception to the hearsay rule, Fed. R. Evid.

801(d)(2)(E). Petitioner has waived this claim by failing to

raise it in either the district court or the court of appeals.

See, e.g., United States v. Lovasco, 431 U.S. 783, 788 n.7

(1977). Moreover, the rule in the Eighth Circuit is precisely

the one advanced by petitioner, requiring an ultimate

determination of admissibility “at the conclusion of all the

evidence.” United States v. Beil, 573 F.2d 1040, 1044

(1978). Finally, the court of appeals, on the basis of its

review of the entire record, sustained the district court’s

factual findings supporting the admission of the statements

(Pet. Avp. Al3-A14). The district court’s harmless depar-

ture from established circuit precedent thus does not war-

rant this Court’s review.

6

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

CHARLES FRIED

Acting Solicitor General

OcTOBER 1985