Opposition Brief — Kirk v. United States

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F. SPANIOL, JR.

No. 88-73 CLERK

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

BEN FARRELL KIRK, PETITIONER

Vv.

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

EDWARD S.G. DENNIS, JR.

Acting Assistant Altorney General

JOEL M. GERSHOWITZ

Attorney

Depariment of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the district court committed reversible error by

not providing petitioner with transcripts of all the

testimony in a previous criminal trial that was related to

the present case.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Britt v. North Carolina, 404 U.S. 226 (1971) ............ 3

Martin v. Rose, 525 F.2d 111 (6th Cir. 1975) ........... 5

People v. Hosner, 15 Cal.3d 60 (1975) ................. 5

People v. Sanchez, 622 P.2d 604 (Colo. t. App. 1980) .. 5

United States v. Bamberger, 482 F.2d 166 (9th Cir.), cert.

Ss) 5

United States v. Bueno, 470 F.2d 154 (Sth Cir. 1972),

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United States v. Jonas, 540 F.2d 566 (7th Cir. 1976) ..... 5

United States v. Rosales-Lopez, 617 F.2d 1349 (9th Cir.

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Uniteé States ex rel. Moore v. People of Illinois, 577

F.2d 411 (7th Cir. 1978), cert. denied, 440 U.S. 919

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-73

BEN FARRELL KIRK, 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.

4435-4444) is reported at 844 F.2d 660.

JURISDICTION

The judgment of the court of appeals was entered on

April 14, 1988. A'petition for rehearing was denied on

June 14, 1988. The petition for a writ of certiorari was

filed on July 5, 1988. The jurisdiction of this Court is in-

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

STATEMENT

After a jury trial in the United States District Court for

the District of Hawaii, petitioner was convicted on 56

counts of mail fraud (18 U.S.C. 1341), three counts of

wire fraud (18 U.S.C. 1343), two counts of interstate

(1)

2

transportation of stolen property (18 U.S.C. 2314), one

count of racketeering (18 U.S.C. 1962(c)), and one count

of conspiracy (18 U.S.C. 371). He was sentenced to con-

current prison terms of five years on each count and a fine

of $76,000.

1. In 1979, petitioner and three others formed a com-

pany called W.P.M.K., which sold the right to use vaca-

tion homes, primarily in Hawaii. Customers of W.P.M.K.

purchased the right to use the housing for a specified

number of weeks. Petitioner ran the day-to-day operations

of W.P.M.K. while the other founders financed the

business. In 1980, petitioner hired James Quincy to handle

marketing Operations, customer service, and maintenance.

Pet. App. 4437.

Acting in concert with others and through W.P.M.K..,

petitioner engaged in a scheme to oversell time in the vaca-

tion homes. Under that scheme, the company sold unwit-

ting consumers the right to use the housing one month a

year for eight years. W.P.M.K., however, had only three-

year leases or purchase agreements for the same facilities.

Thus, W.P.M.K. sold 5,270 weeks of use although it had

an inventory of only 3,068 weeks. Pet. App. 4438.

2. Petitioner was indicted along with nine other persons,

two of whom later pleaded guilty and testified for the

government. Petitioner was involved in three trials. After

two weeks of his initial trial, the district court granted peti-

tioner’s motion to sever his trial.' At petitioner’s second

trial, the jury could not reach a verdict. Petitioner was

convicted at his third trial. Pet. App. 4438-4439.

Prior to the third trial, petitioner, an indigent, requested

various transcripts: (1) the entire transcript of the first

trial, from which his case was severed; (2) the transcript of

' The cases against two other defendants were also severed (Pet.

App. 4438).

his second trial, which did not result in a verdict; and (3)

the transcript of a separate, ongoing trial of co-defendant

Quincy. The district court provided petitioner with the

transcripts of six witnesses who testified at the first trial

and the entire transcript of the testimony at the second

trial. The court, however, denied the balance of

petitioner’s request. The court found that “there is no in-

dication that the trial proceedings involving the other nine

defendants would be relevant to” petitioner (C.A. App.

103).

3. The court of appeals affirmed. The court of appeals

did not decide whether petitioner was entitled to all the

transcripts that he sought. Rather, the court held that any

error in failing to provide the transcripts “was harmless

beyond a reasonable doubt” (Pet. App. 4441). The court’s

conclusion rested on the “overwhelming evidence” of peti-

tioner’s guilt and the court’s observation that petitioner

“was denied no material in this case that would have per-

mitted him to refute the evidence against him” (ibid.).

ARGUMENT

|. Petitioner contends that he should have been given

transcripts of the testimony of his co-defendants at the

first trial.? He argues (Pet. 6-7, 11) that he needed those

transcripts to help him decide whether to call those co-

defendants as witnesses. That claim is without merit.

Ihe government “must provide an indigent defendant

with a transcript of prior proceedings when that transcript

is needed for an effective defense or appeal.” Brii/ v.

North Carolina, 404 U.S. 226, 227 (1971). The Court in

Britt identified two factors that are relevant to the deter-

Petitioner does not renew his claim tor the transcript of Quincy's

rial

4

mination of need: “(1) the value of the transcript to the

defendant in connection with the appeal or trial for which

it is sought, and (2) the availability of alternative devices

that would fulfill the same functions as a transcript”

(ibid.).

Here, the district court provided petitioner with all the

transcripts that he needed. Four defendants remained in

the first trial after the severance; two of those defendants

testified, and petitioner was provided with the transcript

of the testimony of one of those defendants, James Quin-

cy. It is clear that petitioner did not need the transcript of

the testimony of the other defendant in order to decide

whether to call him as a witness at petitioner’s trial: The

Strategy of the remaining defendants at the first trial was

to shift the blame for any offenses to petitioner; that is

why petitioner sought a severance and why the district

court granted petitioner’s request. Accordingly, petitioner

knew without the benefit of any transcript that it was not

in his interest to call the defendants at the first trial to

testify on his behalf.

2. Petitioner next argues (Pet. 13-19) that the court of

appeals erred in using a harmless-error analysis. He con-

tends that no error in failing to provide a needed transcript

can be harmless. Petitioner, however, has not preserved

that claim. In the court of appeals, petitioner acknow-

ledged (C.A. Br. 11) that such an error may be harmless.

In any event, this Court has never suggested that an er-

ror in failing to provide a defendant with transcripts can-

not be harmless. And the courts of appeals have con-

sistently applied the harmless-error rule in that context.

’ In passing, petitioner also argues (Pet. 20) that the district court

erroneously failed to provide him with transcripts of the testimony of

certain victims al the first trial. However, each of those victims was

called as a witness at the second trial, and petitioner was provided with

a full set of the transcripts of that trial.

5

See, e.g., United States v. Rosales-Lopez, 617 F.2d 1349,

1356 (9th Cir. 1980); United States ex rel. Moore v. People

of Illinois, 577 F.2d 411, 417 (7th Cir. 1978), cert. denied,

440 U.S. 919 (1979); Martin v. Rose, 525 F.2d 111, 113

(6th Cir. 1975); United States v. Bamberger, 482 F.2d 166,

168-169 (9th Cir.), cert. denied, 414 U.S. 1041 (1973);

United States v. Bueno, 470 F.2d 154, 155 (Sth Cir. 1972),

cert. denied, 411 U.S. 949 (1973).

Of the many cases that petitioner cites (Pet. 14-19), only

three refused to consider whether an erroneous failure to

provide requested transcripts was harmless: United States

v. Jonas, 540 F.2d 566, 572 (7th Cir. 1976); People v. San-

chez, 622 P.2d 604, 605 (Colo. Ct. App. 1980); and People

v. Hosner, 15 Cal. 3d 60, 538 P.2d 1141, 1148, 123 Cal.

Rptr. 381 (1975). Those three decisions, however, do not

help petitioner. In later cases, both the Seventh Circuit

and the Colorado Court of Appeals applied a harmless-

error analysis to a failure to provide transcripts. See

United States ex rel. Moore v. People of Illinois, 577 F.2a

at 417; People v. St. John, 668 P.2d 988, 989 (Colo. Ct.

App. 1983). And in Hosner, the Supreme Court of

California held only that the failure to provide an indigent

defendant with a transcript of his own previous trial can-

not be harmless. Here, petitioner was provided with a full

transcript of his own previous trial; he complains only

about the failure to provide him with transcripts of the

testimony from the first trial that was given after his case

had been severed. Thus, the California court’s decision in

Hosner does not squarely conflict with the Ninth Circuit's

analysis in this case.

6

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS JR.

Acting Assistant Attorney General

JOEL M. GERSHOWITZ

Attorney

SEPTEMBER 1988

vr US GOVERNMENT PRINTING OFFICE: 1988—202-037/60642