Opposition Brief — Devine v. United States

|, Supreme Court, U.S,

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AUG 22 1986

JOSEPH F. SPANIOL, up

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-15

—

JOHN DEVINE, 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

THOMAS E. Bootu

Ai orney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

=

QUESTIONS PRESENTED

1. Whether the district court acted within its discretion in

excluding testimony of an expert witness that would have

been based on what he believed he heard on audiotapes that

were played for the jury.

2. Whether the district court acted within its discretion in

prohibiting defense counsel from asking certain questions

during the three-day cross-examination of a prosecution

witness.

3. Whether the district court properly admitted co-

conspirator statements in the absence of any Confrontation

Clause objection.

(I)

TABLE OF CONTENTS

Page

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CCT Ce cee eb absne esse seccesecceees 6

ee ei deb bee coceceecs 10

TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 463 ........... 6

Barnes v. United States, 412 U.S. 837 .......... 6

Berkemer v. McCarty, 468 U.S. 420 ........... 9

Chesebrough-Pond’s, Inc. v. Faberge,

Inc., 666 F.2d 393, cert. denied,

ee Cel Goce déepnebesesecoees 7

Delaware vy. Van Arsdall, No. 84-1279

i eee serapdbeen dered vceseces 7,8

Salem vy. United States Lines Co.,

eee eae b spp edueeeese cece s 6

United States vy. DeLuna, 763 F.2d 897,

cert. denied, No. 85-423 (Nov. 12, 1985) ..... 7,9

United States v. Gibbs, 739 F.2d 838,

cert. denied, No. 84-364 (Jan. 7, 1985) ........ 9

United States v. Inadi, No. 84-1580

i crete aces ee he es eee 0 eee &

United States v. Schmidt, 711 F.2d 595,

oort, Gemeee, 466 US. 1061 .. nw ccccccccccccces 7

(III)

IV

Page

Constitution, statutes and rules:

U.S. Const. Amend. VI (Confrontation

a Pere reer err ery Tr eriei rec 5, 7, 8,9

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RUE 2 sit. | aan rrr re re er 2

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rod, i. Come. B. COT) ccc cccsntwceses a

Fed. R. Evid. :

OOS cies eiawacescckacevctesesrarass 8

DO EE vethhstosveesGeenesreesseeeks 6,7

Advisory committee note ............. 6

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Miscellaneous:

Ladd, Expert Testimony, 5 Vand. L. Rev. 414

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3 J. Weinstein & M. Berger, Weinstein’s

ph) errr er rrr eT eT Tre rr Tree 7

In the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-15

JOHN DEVINE, 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

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1 A-6A) is

reported at 787 F.2d 1086.

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 1986. A timely petition for rehearing was denied

on May 6, 1986. The petition for a writ of certiorari was

filed on July 7, 1986, and is therefore out of time under

Rules 20.1 and 29.1 of the Rules of this Court. The jurisdic-

tion 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 Illinois, petitioner was con-

victed of 23 counts of mail fraud, in violation of 18 U.S.C.

(1)

2

1341; 23 counts of interference with commerce by means of

threats or violence, in violation of 18 U.S.C. 1951; and one

count of racketeering, in violation of 18 U.S.C. 1962(c). He

was sentenced to concurrent terms of 15 years’ imprison-

ment. The court of appeals affirmed (Pet. App. 1 A-6A).

1. The evidence at trial showed that petitioner, a state

court trial judge in Chicago, Illinois, fixed cases in exchange

for money from attorneys. In one scheme, petitioner

appointed selected attorneys to represent defendants whose

cases were assigned to petitioner’s court, awarded fees to the

attorneys from the defendants’ bond money, and fixed the

cases in exchange for one-third of the fee. Three attorneys

testified that they either paid money to petitioner or were

“shaken down” by petitioner while he was a criminal court

judge. Pet. App. 2A.

In another scheme, which occurred after petitioner

switched from criminal court to traffic court, attorney Ter-

rence Hake gave money to petitioner or petitioner’s court

assistant, Harold Conn, on three separate occasions in

exchange for decisions favorable to Hake’s clients. Peti-

tioner was unaware that Hake was an FBI undercover agent

during the FBI’s “Operation Greylord,” which investigated

corruption in the Chicago state court system. Hake posed as

a corrupt defense attorney who would bribe judges in return

for favorable decisions. Pet. App. 2A.

During his dealings with petitioner and Conn, Hake wore

a “body bug” to record their incriminating statements. In

Hake’s first transaction with petitioner and Conn, Conn

requested $150 for the judge and whatever amount Hake

wished to give Conn in exchange for a decision by petitioner

favorable to one of Hake’s clients. Conn also explained why

petitioner’s ruling was favorable to Hake, and he identified

some of the “bad” judges in the state court system. On that

occasion, Hake gave Conn $150 for petitioner and $50 for

Conn. Tr. 1386-1388; GXs Benson 1, iA.

3

On the second occasion, Hake delivered $260 to Conn

after petitioner had issued a decision favorable to Hake’s

client. During the exchange, Conn told Hake that petitioner

wanted $200 for his decision and that Conn had assisted

petitioner in ruling in favor of Hake’s client by falsifying a

court document. On the third occasion, Hake delivered

$100 to petitioner following a ruling by petitioner favorable

to Hake’s client. Petitioner accepted the money and told

Hake that the amount was sufficient. Tr. 1404, 1427, 1432,

1433, 1437-1440, 1447, 1455-1456; GXs Cramer 1, IA, 2,

2A; Group Exh. 46.

To counter the impact of the recorded conversations,

petitioner offered the testimony of Dr. Robert Shuy, a

linguist with expertise in “contextual analysis.” During a

proffer, Shuy testified that he had listened to the tape

recordings and had read the transcripts of the tapes that

Hake had prepared. On the basis of listening to the tapes,

Shuy differed with Hake as to the contents of the conversa-

tions. As became clear on voir dire, Shuy did not use

contextual analysis in reaching his opinions about what was

said, but proposed to testify as an “expert listener” without

regard to the context of the conversation. When questioned

by the court, Shuy agreed that, if defense counsel played the

tapes to the jury and suggested defendant’s versions of the

words at issue, that would serve the same purpose as Shuy’s

proffered testimony. Pet. App. 2A-3A; Tr. 2476-2477, 2558-

2569.

In a written opinion issued December 17, 1984, the dis-

trict court excluded Shuy’s testimony for two reasons. First,

petitioner had failed to comply with Fed. R. Crim. P.

16(b)(1)(B) by withholding Shuy’s report of his examina-

tion of the taped conversations from the government, there-

by preventing the government from preparing an effective

rebuttal to Shuy. Second, the court concluded that Shuy’s

4

testimony would not have provided the jury with “signifi-

cant heip in understanding the evidence,” because the jury

was capable of understanding the contents of the recorded

conversations. During cross-examination of Hake, how-

ever, the court allowed petitioner to play the tapes on

equipment identical to that used by Shuy. In addition, the

court deleted those conversations that petitioner contested

from the transcripts that were given to the jury during

deliberations. Pet. App. 2A-3A.

To impeach Hake’s credibility, petitioner attempted to

show that Hake’s procedures for recording petitioner’s con-

versations were different from his recording procedures in

other cases in which Hake posed as a recipient of bribes

from corrupt attorneys. In this case, petitioner did not

confirm each bribe on the tapes after he gave the money to

petitioner or Conn. In the other cases, Hake had made

statements on the tapes confirming the receipt of money

from the bribe-givers. During the three-day cross-examina-

tion of Hake (see Pet. App. SA), defense counsel was

allowed to ask a number of questions about the difference

between instances in which Hake did confirm bribes and

instances in which Hake did not confirm bribes (Tr. 1500-

1504, 1515-1519, 1521, 1525, 1535, 1544, 2157). Defense

counsel argued the significance of this point in closing

argument (Tr. 2661, 2721, 2738).

The district court, however, regarded as only marginally

relevant the difference between Hake’s conduct as a bribe-

taker and his conduct as a bribe-giver. As the court voted, a

bribe-taker, unlike a bribe-giver, may confirm a receipt of

money, without arousing suspicions, by thanking the giver.

The district court therefore refused to permit several ques-

tions directed to this issue on grounds of relevance and

waste of time. The court pointed out that the already

lengthy cross-examination of Hake would be further pro-

tracted if defense counsel were permitted to inquire into

5

each of the 23 taped conversations in which Hake had

received bribe money. Pet. App. 5A; Tr. 1566-1567, 1667-

1668.

During the trial, petitioner objected on hearsay grounds

to the admission of Conn’s statements to Hake. The district

court admitted Conn’s statements as co-conspirator decla-

rations under Fed. R. Evid. 801(d)(2)(E). Petitioner did not

ask the district court to conduct a separate inquiry into the

reliability of the statements in order to determine whether

their admission would violate the Confrontation Ciause.

Petitioner also objected on hearsay grounds to the admis-

sion of statements by attorney Harry Klepper to policeman

Joseph Trunzo. Trunzo testified that he was a conduit for

bribes between petitioner and attorneys. On two occasions,

Klepper gave envelopes to Trunzo and angrily told him to

give them to petitioner. The district court admitted Klepper’s

statements as nonhearsay because they-were offered not to

prove the truth of the matter asserted but to explain Trun-

zo’s conduct. Pet. App. 4A-5A; Tr. 1347, 1355, 2192-2196.

2. The court of appeals affirmed (Pet. App. 1A-6A).

First, the court held that the district court properly

excluded Shuy’s testimony because Shuy’s testimony was

based only on listening to the tapes and not on his expertise

and therefore would not help the jury (id. at 2A-3A). The

court also upheld the district court’s rulings that Conn’s

statements were properly admitted under Fed. R. Evid.

801(d)(2)(E) and that Klepper’s statements were not hear-

say (Pet. App. 4A-5A). Petitioner had not contended that

the admission of those statements violated the Confronta-

tion Clause, and the court therefore did not address any

Confrontation Clause question. Finally, the court held (id.

at 5A) that the district court had not abused its discretion in

limiting petitioner’s cross-examination of Hake. Noting

that petitioner was permitted extensive cross-examination

of Hake over a three-day period, the court found that the

6

district court did not err by limiting petitioner’s questions

about Hake’s failure to make confirming statements during

some of the tape-recorded conversations.

ARGUMENT

As a preliminary matter, all of petitioner’s challenges to

his conviction are limited to the RICO count and those

extortion counts that involved undercover agent Hake and

petitioner's actions as traffic court judge. On those counts,

petitioner received sentences that were concurrent with his

sentences on the mail fraud and other extortion counts. In

these circumstances, review of petitioner’s claims is unwar-

ranted because even complete acceptance of all of petition-

er’s arguments would give him no practical benefit. See

Andresen v. Maryland, 427 U.S. 463, 469 n.4 (1976);

Barnes v. United States, 412 U.S. 837, 848 n.16 (1973).

1. Petitioner first contends (Pet. 16-24) that the district

court's exclusion of Shuy’s testimony violates Fed. R. Evid.

702. Yet, as this Court has recognized, “the trial judge has

broad discretion in the matter of the admission or exclusion

of expert evidence, and his action is to be sustained unless

manifestly erroneous” (Salem vy. United States Lines Co.,

370 U.S. 31, 35 (1962)). The action of the district court in

this case was not manifestly erroneous. The issue was

simply what was said on tapes that were played to the jury.

Shuy’s expertise in “contextual analysis” could not help the

jury understand what was said, for Shuy admitted that he

would base his testimony simply on what he heard, not on

contextual analysis. In ruling that playing the tapes to the

jury would serve the same purpose as allowing Shuy to

testify, the court correctly concluded that “the untrained

layman would be qualified to determine intelligently and to

the best possible degree the particular issue without enlight-

enment from those having a specialized understanding of

the subject” (Ladd, Expert Testimony, 5 Vand. L. Rev. 414,

418 (1952), quoted in Fed. R. Evid. 702 advisory committee

note).

7

Other courts of appeals have upheld the exclusion of

linguists’ testimony. See, e.g., United States v. DeLuna,

763 F.2d 897, 912 (8th Cir. 1985), cert. denied, No. 85-423

(Nov. 12, 1985); United States v. Schmidt, 711 F.2d 595,

598-599 (Sth Cir. 1983), cert. denied, 464 U.S. 1041 (1984);

see also Chesebrough-Pond’s, Inc. v. Faberge, Inc., 666

F.2d 393 (9th Cir.), cert. denied, 459 U.S. 967 (1982). The

cases on which petitioner relies (Pet. 20) involve expert

interpretation of surveillance photographs, a field in which

the utility of expert testimony is more widely acknowledged

(see 3 J. Weinstein & M. Berger, Weinstein’s Evidence

§ 702[02], at 702-10 to 702-11 (1985)). In any event, those

cases hold only that the admission of expert testimony in

the circumstances of each case was not clearly erroneous.*

Finally, there is no merit to petitioner’s assertion (Pet.

21-24) that the exclusion of Shuy’s testimony prevented him

from presenting his version of the taped conversations to

the jury. In addition to conducting a three-day cross-

examination of Hake, petitioner received extraordinary

procedural protections so that he could present his version

of the conversations (see page 4, supra).

2. Petitioner also contends (Pet. 25-28) that the district

court restricted his cross-examination of Hake in violation

of the Sixth Amendment. This fact-bound question merits

no further review.

Under the Confrontation Clause, a defendant has the

right to cross-examine a government witness to impeach his

credibility (Delaware vy. Van Arsdall, No. 84-1279 (Apr. 7,

1986)). A district court, however, may restrict cross-

examination that is repetitive or harassing, confuses the

*Even if the district court’s application of Rule 702 in this case were

manifestly erroneous, its ruling would still be correct because of peti-

tioner’s failure to comply with Fed. R. Crim. P. 16(b)(1)(B) by not

disclosing Dr. Shuy’s reports and notes to the government before trial.

8

issues, or is only marginally relevant (slip op. 6; see also

Fed. R. Evid. 403). The district court’s rulings were consist-

ent with those guidelines.

The district court allowed petitioner to ask Hake about

his failure to confirm his bribe-giving to petitioner or Conn

on the tapes and to argue to the jury the significance of that

failure. The court restricted petitioner only from delving at

length into Hake’s other investigations and from asking

Hake argumentative questions about his reasons for failing

to make confirming statements on some of the tapes in this

case. Rather than holding those questions entirely irrele-

vant, the trial judge advised the jury that it could consider

differences between the tapes, and the judge allowed

defense counsel to argue the point to the jury (see Tr. 2146).

The court was correct, however, in holding that the differ-

ence between Hake’s role as bribe-taker and his role as

bribe-giver rendered questions about Hake’s conduct in

earlier cases no more than marginally relevant. It was there-

fore proper for the court to curtail the lengthy cross-

examination of Hake accordingly.

3. Petitioner also contends (Pet. 29-31) that the district

court did not comply with the Confrontation Clause when it

admitted Conn’s and Klepper’s statements as co-conspirator

declarations under Fed. R. Evid. 801(d)(2)(E) without

requiring the government to show that the statements bore

specific indicia of reliability. Although petitioner correctly

notes that the courts of appeals are divided on this issue, this

case does not warrant review.

Klepper’s statements were not admitted for the truth of

any matters asserted in the statements but were instead

admitted as nonhearsay to explain Trunzo’s conduct. Thus,

Klepper’s statements do not implicate the Confrontation

Clause at all (see United States v. Inadi, No. 84-1580 (Mar.

10, 1986), slip op. 11 n.11).

9

Although some of Conn’s statements were admitted for

the truth of the matters asserted, petitioner did not preserve

below any objection to those statements on the basis of the

Confrontation Clause, nor did he identify the particular

statements he wished to challenge. Petitioner therefore may

not raise the issue here. See Berkemer v. McCarty, 468 U.S.

420, 443 (1984); United States v. Gibbs, 739 F.2d 838,

846-848 (3d Cir. 1984) (en banc), cert. denied, No. 84-364

(Jan. 7, 1985).

Moreover, Conn’s statements were reliable under any

standard. On both occasions when Hake met with Conn to

make payoffs, petitioner had directed Hake to “see [Conn]”

after the court proceedings were over (GXs Benson |, 1A;

GXs Cramer 1, 1A). On the third occasion when Hake made

a payment in connection with one of his cases, he made it

directly to petitioner (GXs Cramer 2, 2A). The payment was

made in connection with further proceedings in a case on

which Hake had previously made a payment to petitioner

through Conn. In light of petitioner’s acceptance of money

directly from Hake on one occasion and his conduct in

referring Hake to Conn to make payments on other occa-

sions, Conn’s statements confirming that the payments

were going to petitioner were well corroborated and thus

shown to be reliable.

In addition, Conn’s statements related to contemporane-

ous events about which Conn had first-hand knowledge.

There was therefore no risk that the statements might be

unreliable because of inaccuracies in Conn’s recollection of

past events. Finally, Conn had no reason to lie, because

Conn was expecting bribe money from Hake on a continu-

ing basis, and Conn would only have jeopardized any future

payments if he had lied to Hake. In these circumstances,

Conn’s statements would have been admitted even in the

courts that require an independent analysis of the reliability

of co-conspirator declarations under the Confrontation

Clause. See United States v. DeLuna, 763 F.2d at 910

(discussing indicia of reliability).

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

THOMAS E. BooTtH

Attorney

AUGUST 1986

DO}-1986-08