Opposition Brief — Tucker v. United States

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No. 85-1317 JOSEPH F. SPANIOL, Jk.

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In the Supreme Court of the United States

OCTOBER TERM, 1985

ROBERT L. TUCKER, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

SARA CRISCITELLI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

——

QUESTIONS PRESENTED

1. Whether the prosecutor’s in camera submission of

documents to the district court for a determination whether

they should be disclosed to the defense violated due process.

2. Whether the court of appeals applied an incorrect

harmless error analysis in concluding that petitioner was

not prejudiced by the exclusion of a document that, while

not admitted into evidence, was quoted extensively at trial.

3. Whether the district court committed clear error in

concluding that the prosecutor showed an adequate non-

racial explanation for his use of peremptory challenges to

strike four black potential jurors.

(I)

TABLE OF CONTENTS

Page

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I SRE Y

TABLE OF AUTHORITIES

Cases:

momen ¥. Maryland, 373 U.S. 83 ............00- 3

Swain v. Alabama, 380 U.S. 202 .............. 8

Tiffany Fine Arts, Inc. v. Urited

States, No. 83-1007 (Jan. 9,

coca ber sess eeesees 7

United States v. Agurs, 427 U.S.97 .......... 3,4

United States v. Darby, 744 F.2d

1508, cert. denied, No. 84-1260 (May 13,

ee hs yak doe sei soeecepecs 4

United States v. Dupuy, 760 F.2d 1492 ......... 3

United States v. Holmes, 722 F.2d 37 .......... 4

United States v. Leslie, 783 F.2d 541 ........... 8

United States v. Marrero, 486 F.2d 622,

ee aS Sr 5

United States ex rel. Teague v. Lane,

eg adn bibs 6 pede ee cece se 8

(III)

IV

Page

Cases—Continued:

Weathersby v. Morris, 708 F.2d 1493 .......... 8

Wisniewski v. United States, 353 U.S.

ei RE Gan a hes ere ee re 5

Statutes:

Jencks Act, 16 U.S.C. 3500 oc ccvecscccsccnewes 3

Ae, SOE, hinck oe Kener xs eeeee ene ae bare l

| glk. te po errrerare rer ner: Te rere l

In the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1317

ROBERT L. TUCKER, PETITIONER

7.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. BI-B9) is

reported at 773 F.2d 136.

JURISDICTION

The judgment of the court of appeals was entered on

September 6, 1985. A petition for rehearing was denied on

December 5, 1985. The petition for a writ of certiorari was

filed on February 3, 1986. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for

the Northern District of Illinois, petitioner was convicted of

nine counts charging wire fraud, 1n violation of 18 U.S.C.

1343, and one count of presenting false documents to a

federally insured bank, in violation of 18 U.S.C. 1014. He

(1)

2

was sentenced to concurrent terms of 15 months’ impris-

onment on counts one through five, to be followed by five

years’ probation on the remaining counts, and he was also

directed to make restitution of $5 million, subject to certain

conditions. The court of appeals affirmed (Pet. App.

B1-B9).!

The evidence at trial is briefly summarized in the court of

appeals’ opinion (Pet. App. B2). It showed that co-

defendant Deborah Bell, a commodities broker, was the

intermediary for a fraudulent sale of 6,000 tons of black

beans from a supplier in Hong Kong to a Guatemalan

government agency. Petitioner, Bell’s attorney, partici-

pated in the charged fraud. Pursuant to the sales contract,

the buyer arranged for a $5 million letter of credit, to be

paid to Bell upon her submission of documents showing

that the beans had been loaded on a vessel in Hong Kong.

Bell submitted the required documents and obtained the

funds. However, she and petitioner had forged the docu-

ments and no beans were in fact shipped to Guatemala.

ARGUMENT

The court of appeals’ decision is correct. It does not

conflict with any decision of this Court or any other court of

appeals, and it does not present issues warranting this

Court’s review.

1. Petitioner first contends (Pet. 39-44) that the govern-

ment violated his right to a fair trial by submitting “false or

highly prejudicial information” (id. at 39) to the district

court in camera. The court of appeals correctly rejected this

claim.

'Petitioner’s co-defendants Deborah Bell and Michael Ball were

similarly convicted on all ten counts, and their convictions were also

affirmed on appeal. A petition filed by co-defendant Bell is currently

pending before this Court (No. 85-976).

3

The facts surrounding this claim are set forth in the court

of appeals’ opinion (Pet. App. B8). Early in the trial, the

government submitted to the district court, in camera, a

report compiled by the Federal Bureau of Investigation

concerning information supplied by a confidential source,

James Gunnelles. Aithough the government believed that

the material was inculpatory, it made the report available to

the district court to allow the court to determine whether

the report should be disclosed to the defense pursuant to

Brady v. Maryland, 373 U.S. 83 (1963), and United States

v. Agurs, 427 U.S. 97 (1976). See 2/24/83 Tr. 40. The

district court concluded that the report was not discover-

able and declared at sentencing that it “intend[ed] to ignore

th{e] document in totality” and was “not going to credit [it]

one wit [sic].” Jd. at 17, 42-43.?

When a prosecutor has any doubt concerning the defend-

ant’s right to material under Brady or the Jencks Act, 18

U.S.C. 3500, courts have consistently recommended and

approved the practice of submitting the material to the

district court for an in camera determination whether it

should be produced. See, e.g., United States v. Dupuy, 760

Petitioner was also informed during the trial that other materials

had been submitted in camera for the court’s determination whether

they should be disclosed to defense counsel. The court informed all

parties that “if I err, it will be error on the side of disclosure” (Tr. 218).

The court did not order the government to turn over all of the docu-

ments. After sentencing, the government disciosed or described the

remaining documents that had been submitted in camera, including a

letter from an Assistant United States Attorney to the trial judge

“tendering grand jury materials with [the] government’s theory of the

case”; notification that a potential government witness had sat briefly

on the grand jury that returned the indictment against petitioner and his

co-defendants; notification of a closed investigation of a government

witness for an alleged bad act unrelated to this case; and other informa-

tion concerning an investigation into a government witness’s work

record and an alleged bad act that occurred 10 years before. Pet. App.

A3-A4.

4

F.2d 1492, 1501 (9th Cir. 1985); United States v. Darby,

744 F.2d 1508, 1525 (ith Cir. 1984), cert. denied, No.

84-1260 (May 13, 1985); United States v. Holmes, 722 F.2d

37, 41 (4th Cir. 1983) (“{I]t would be the prosecutor’s

obligation to submit any material to the district court in

cameca if he had any doubts about whether it might be

exculpatory.”); see also United States v. Agurs, 427 U.S. at

106. Faced with a long and complicated trial, the prosecutor

was justifiably desirous of avoiding inadvertent reversible

error. Accordingly, as the court of appeals held, “the

government acted prudently” in providing the material to

the district court for its evaluation. Pet. App. B8. The

court’s rejection of petitioner’s claim that the prosecutor

acted improperly is unassailable and does not merit further

review.

The decision below also correctly resolves petitioner’s

related suggestion (Pet. 43-44) that the ia camera submis-

sion prejudiced the judge against him. The court of appeals

characterized that as “a ridiculous suggestion” (Pet. App.

B8), stating that “[w]e trust our judges to preside impar-

tially over trials in which they know much that the jury does

not know adverse to the defendants; there ‘s no indication

that the district judge failed to do his duty in this case”

(ibid.). Indeed, petitioner has failed to identify any prejudi-

cial rulings or conduct by the district court.

2. Petitioner next contends (Pet. 44-46) that the court of

appeals erroneously applied the harmless error rule to reject

his claim of prejudice from the exclusion of evidence at trial.

The facts relevant to this issue are recounted by the court

of appeals (Pet. App. BS-B7). Irving Pheterson, acommod-

ities broker in Miami who had asupplier in the Far East (id.

at B2), was a key government witness against petitioner.

Sometime prior to the trial, he wrote two draft letters to the

prosecutor (id. at Cl-C6, C6-C10) that the court of appeals

described as “rambling, weird, but not demented” (Pet

5

App. BS). § Petitioner sought to introduce one of the letters

as substantive evidence in his own case to bolster his defense

that Pheterson fabricated his testimony in exchange for

immunity; the district court excluded the evidence on the

ground that it was hearsay.‘

The court of appeals concluded that the district court

erred in excluding the evidence as hearsay. However, it

observed that the letter, while not admitted as an exhibit at

trial, was used extensively during cross-examination and

that the letter did not establish that the witness’s testimony

was false. Pet. App. B6. The court noted that since the letter

was effectively presented to impeach Pheterson’s credibility

at trial, the jury would not likely have reached a different

verdict had it been given acopy of the le. ter during delibera-

tions (id. at B6-B7). Accordingly, the court concluded that

the trial court’s evidentiary ruling was harmless.

Contrary to petitioner’s assertions, the court's decision is

wholly unremarkable. The court of appeals applied conven-

tional and appropriate harmless error analysis.° It evalu-

ated whether petitioner was prejudiced by the district

court’s error and concluded that, since the substance of the

letter was made known at trial, reversal was unwarranted

’Pheterson did not send the letters to the prosecutor and in fact

objected when the prosecutor took them (Tr. 1039, 1282-i283).

‘Although petitioner refers to both of the draft letters in his petition

(Pet. 28-29) and includes both in his appendix (Pet. App. C1-C6,

C6-C10), he offered only the first of the two letters at trial.

‘Petitioner mistakenly asserts (Pet. 45-46) that the court of appeals’

decision conflicts with United States v. Marrero, 486 F.2d 622, 627 (7th

Cir. 1973), cert. denied, 423 U.S. 862. Even if an intra-circuit conflict

exists, this Court does not sit to review such inconsistencies. Wéis-

niewski v. United States, 353 U.S. 901 (1957) (per curiam). Petitioner’s

suggestion (Pet. 44) that evidentiary rulings are not subject to harmless

error review is frivolous.

6

(Pet. App. B6).® It considered the nature of the excluded

evidence as well as other evidence that was introduced at

trial and determined that the introduction of the letters

would not have had any further evidentiary value (id. at

B7). The court’s analysis and conclusion are plainly correct.

3. Finally, petitioner contends (Pet. 31-38, 46-48) that

the government’s use of peremptory challenges to strike

four black veniremen from the jury violated his right to an

impartial jury. The propriety of a prosecutor’s considera-

tion of race in exercising peremptory challenges is currently

pending before the Court in Batson v. Kentucky, No.

84-6263 (argued Dec. 12, 1985). However, there is no need

to hold this petition for the decision in that case because

there is here no factual basis for petitioner’s claim.

In exercising seven peremptory challenges, the prosecu-

tor struck the only four black veniremen on the jury panel.

Defendants objected, asserting that the challenges were

impermissibly used to exclude black persons. The prosecu-

tor explained to the district judge in an ex parte in camera

proceeding that he struck the veniremen on the basis of their

education rather than their race.

*Petitioner asserts (Pet. 29) that the letter demonstrates that Pheter-

son fabricated his trial testimony to satisfy the prosecutors. But as the

court below correctly noted, Pheterson had given an outline of his

evidence prior to being subpoenaed by the grand jury and, thus, before

his need for immunity surfaced (Pet. App. B6). Moreover, the phrases

in the letter to which petitioner refers are “consistent with Pheterson’s

simply having found it difficult to set forth the entire complicated story

in a coherent form” (ibid.).

Petitioner also states (Pet. 25-26) that the court found that Pheterson

was an “unreliable” witness and that “apart from Pheterson’s testimony

the evidence fell far short of proving petitioner’s participation in the

fraud beyond a reasonable doubt.” However, the court also found that

the testimony of other witnesses and petitioner’s own conduct corrobo-

rated Pheterson’s testimony (Pet. App. B4).

J

Because of the complicated nature of the charged fraud,

the government believed that it needed well-educated jurors

with business experience (Tr. 79-80). Of the four black

jurors struck, only one apparently graduated from high

school. In the prosecutor’s opinion, however, that juror

“did not appear to be particularly alert or interested” and

“did not seem to have the natural capabilities that * * * are

necessary” (id. at 79). Another struck juror had an eighth

grade education and worked making brushes (id. at 34,

79-80); a third had attended high school but had no

employment history (id. at 34); and a fourth apparently had

seme high-school level education and was self-employed in

an unspecified job involving scrap metal recycling (id. at

54-55).’ The prosecutor also noted that his three remaining

challenges were similarly exercised to strike jurors who

possessed only a high school education and lacked the

business sophistication that the government deemed desir-

able in this case (id. at 79-80).

After considering this explanation, the district court con-

cluded that race was not the criterion by which the peremp-

tory chailenges were exercised and that the government had

an independent “strategic purpose” for its challenges (Tr.

81-82). The court of appeals accepted the district court’s

findings and affirmed (Pet. App. B9). The concurrent find-

ing of fact by both courts below does not warrant review by

’In describing this juror, petitioner states that he had “a high school

education !and] had successfully operated his own small metal recycling

business in the City of Chicago for 25 years” (Pet. 34). However, the

juror simply stated during voir dire that he had “a high school equiva-

lent” and did not describe his self-employment in scrap metal recycling,

much less characterize his endeavors as “successful.”

8

this Court. See, e.g., Tiffany Fine Arts, Inc. v. United

States, No. 83-1007 (Jan. 9, 1985), slip op. 7-8 n.5.°

In sum, it is unnecessary to hold this petition pending

resolution of Batson v. Kentucky.$

*Petitioner’s accusation that the government’s explanation was pre-

textual and that the jury selection process was racially motivated finds

no support in the record. The profile of the jurors selected validates the

government's explanation that it sought a jury comprised of well-

educated persons with significant work experience. Of the jurors and

alternates accepted by the government, four had coilege or post-

graduate degrees; five had attended or were presently attending college;

tour had completed high school and had substantial or responsible

employment. Only one alternate juror had less than a high-school

education. She had completed three and one half years of high school,

but her lack of a high school diploma was compensated for by her

secretarial skills and work experience. See Answer of the United States

to Petition for Rehearing with Suggestion of Rehearing en Banc 4-5.

Petitioner also contends (Pet. 48) that the ex parte nature of the

proceeding at which the prezecutor explained the reasons underlying

his decisions on his peremptory challenges “smacks more of star

chamber, than any approved form of American jurisprudence.” How-

ever, “as things now stand, a prosecutor need not defend his peremptory

challenges.” United States ex rel. Teague v. Lane, 779 F.2d 1332, 1333

(7th Cir. 1985) (Cudahy, J., dissenting from the order granting rehear-

ing en banc). See also, e.g., Swain v. Alabama, 38 U.S. 202, 220-222

(1965); United States vy. Leslie, 783 F.2d 541, n.33 (Sth Cir. 1986) (en

banc); Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983). Since the

government ‘va¢ not required to give an explanation to the court at all,

its offer to du so ex parte and in camera did not deprive petitioner of any

benefit to which he was otherwise entitied.

‘We note that the court of appeals recently granted rehearing en banc

in United States ex rel. Teague v. Lane, supra, to determine “whether

the Constitution prohibits prosecutors from using their peremptory

challenges to exclude potential jurors exclusively on the basis of race”

(Pet. App. D2). However, the court of appeals denied rehearing en banc

in this case only one month before. The court of appeals presumably

denied rehearing en banc in this case based on the panel’s affirmance of

the district court’s factual determination that the prosecutor’s use of

peremptory challenges was not racially motivated.

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

SARA CRISCITELLI

Attorney

APRIL 1986

DOJ-1926-04