Opposition Brief — Bilecki v. United States

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No. 89-548 ae JOSEPH F. SPANIOL,

| CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1989

NICODEAN MARK BILECKI AND

EDNA MAE BILECKI, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

SHIRLEY D. PETERSON

Assistant Attorney General

ROBERT E. LINDSAY

ALAN HECHTKOPF

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether petitioners are entitled to a new trial because

a venireperson against whom petitioners had exercised a

peremptory challenge took the place of a proper member

of the jury.

2. Whether petitioners are entitled to a new trial because

the government did not object to their motion for a new

trial at the time it was made but moved for reconsideration

after it was granted.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Acosta v. State, 522 S.W.2d 528 (Tex. Crim. App.

SES CS Ee, 6

Anderson v. State, 142 Tex. Crim. 384, 154S.W.2d

i re te ae Cap ieanee bias 6

Ross v. Oklahoma, 108 S. Ct. 2273 (1988) ..... i)

Sherman v. State, 2 Ga. App. 148, 58 S.E. 393

EES EE a a en a

State v. Thompson, 68 Ariz. 386, 206 P.2d 1037

ee pend eeees tenes 6

Swain v. Alabama, 380 U.S. 202 (1965) ........ 9

United States v. Atkinson, 297 U.S. 157 (1936).. 9

United States v. Cole, 796 F.2d 380 (11th Cir.), cert.

denied, 479 U.S. 952 (1986) ............ 3, 4, 6, 7, 8

United States v. Frady, 456 U.S. 152 (1982) .... 9

United States v. Levesque, 681 F.2d 75 (Ast Cir.),

cert. denied, 459 U.S. 1089 (1982) ........... 6

United States v. Young, 470 U.S. 1 (1985) ..... 9

Statutes and rules:

internal Revenue Code (26 U.S.C.):

ee A) 2

ke RS 2

Fed. R. Crim. P.:

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-548

NICODEAN MARK BILECKI AND

EDNA MAE BILECKI, PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals, Pet. App. 3-31, is

reported at 876 F.2d 1128. The district court’s order deny-

ing petitioners’ motion for a new trial, Pet. App. 32-42, is

unreported.

JURISDICTION

The judgment of the court of appeals, Pet. App. B, was

entered on June 23, 1989. A petition for rehearing was

denied on July 27, 1989. Pet. App. A. The petition for a

writ of certiorari was filed on September 25, 1989. Pet. 1-23.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

{

(1)

2

STATEMENT

A jury in the United States District Court for the Southern

District of Texas convicted petitioners Nicodean Mark

Bilecki and Edna Mae Bilecki of willful failure to file federal

income tax returns in violation of 26 U.S.C. 7203 (Supp.

V 1987). The jury also convicted Nicodean Mark Bilecki

of filing a false withholding certificate (Form W-4) in viola-

‘ tion of 26 U.S.C. 7205 (Supp. V 1987). Both petitioners

were sentenced to five years’ supervised probation and 300

hours of community service. C.A. E.R. 8-10, 18-19.

1. Petitioners waived their right to a jury trial before

a district judge in favor of a jury trial before a magistrate.

The venire included Mr. Olin Holt and Ms. Lupe Vasquez.

During voir dire, the prosecutor questioned Mr. Holt about

his prior audit by the IRS. Later, petitioners’ counsel ques-

tioned Mr. Holt about his prior service on a jury in a

criminal case and about his work 25 years earlier as a special

deputy sheriff. Petitioners’ counsel asked Ms. Vasquez

whether the fact that her son was a police officer would af-

fect her impartiality. The magistrate did not discharge either

Mr. Holt or Ms. Vasquez for cause. Gov’t C.A. Br. 3-5.

After voir dire, petitioners’ counsel peremptorily chal-

lenged Mr. Holt. Petitioners’ counsel deliberated more than

15 minutes while exercising his peremptory challenges, and

he rose frequently from his chair at the counsel table to view

the venire. Gov’t C.A. Br. 5; C.A. E.R. 31.

After petitioners’ counsel exercised his peremptory

challenges, the courtroom deputy called each member of

the jury by name to take his or her place in the jury box.

Instead of calling “Ms. VaSquez,” however, the deputy called

“Mr. Vasquez” to take a seat in the jury box. To compound

the error, at that time Mr. Holt took a seat in the jury box.

Pet. App. 4, 34. Although petitioners’ counsel followed the

process on a venire list that revealed that Ms. Vasquez’s

ree sik

3

spouse had a male name, “Herman,” Gov’t C.A. Br. An-

nex C, petitioners’ counsel did not object either to the call-

ing of “Mr. Vasquez” or to the seating of Mr. Holt.

Moreover, during the seating or soon thereafter, petitioners’

counsel told the courtroom deputy that the jurcrs were ap-

parently not being seated in the order in which they were

called, and that he found it difficult to match the jurors

called with those: who had taken seats in the jury box.

Despite his difficulty, however, petitioners’ counsel again

made no objection and did not request a roll call. Gov’t C.A.

Br. 6. Mr. Holt sat through the four-day trial and took part

in the jury’s deliberations. Pet. App. 4, 34.

The parties and the magistrate discovered that Mr. Holt

had taken the place of Ms. Vasquez when the jury was polled

after returning its verdict. Pet. App. 4-5, 35. The magistrate

then held an off-the-record conference in chambers, after

which petitioners’ counsel moved for a new trial. The

government did not object to petitioners’ new trial motion

at that time, and the magistrate granted the motion. Pet.

App. 4-5.

Four days later, the government filed a motion ites

the magistrate to reconsider its decision to grant a new trial.

The government argued that petitioners had waived any ob-

jection to the inadvertent seating of Mr. Holt and requested

reinstatement of the verdict. Pet. App. 5, 35. The magistrate

denied the government’s motion, and the government ap-

pealed to a judge of the district court. Pet. App. 35-36.

2. The district judge held that the magistrate had erred

in granting petitioners’ motion for a new trial and denying

the government’s motion for reconsideration. Relying on

United States v. Cole, 796 F. 2d 380 (11th Cir.), cert. denied,

479 U.S. 952 (1986), the district judge held that petitioners

were entitled to a new trial only if they had exercised suffi-

cient diligence to reveal the mistaken seating of Mr. Holt

or had suffered prejudice as a result of the error. Pet. App.

4

36-39. In this case, the district judge held that petitioners

had not exercised sufficient diligence because their counsel

“did not object to the seating of Mr. Holt in place of Ms.

Vasquez” at the time the jury was empaneled and failed to

object before the jury rendered its verdict, even though peti-

tioners’ counsel “had the opportunity to view the jury dur-

ing four days of trial.” Jd. at 39. In conclusion, the district

judge found that petitioners had “waived any objection to

the jury panel by failing to discover and to object to the

inadvertent seating of the peremptorily challenged juror.”

Ibid. The district judge did not explicitly state whether the

inadvertent seating of Mr. ‘Holt had prejudiced the

petitioners.

3. The court of appeals affirmed. It adopted the reason-

ing of the Eleventh Circuit’s decision in United States v.

Cole, 796 F.2d 380 (1986), and noted that Cole’s re-

quirements of sufficient. diligence and prejudice were “firmly

grounded” in Fed.:R. Crim. P. 51, which requires timely

objections, and Fed. R. Crim. P. 52, which requires a court

to disregard harmless errors. Pet. App. 8-9.

Like the district judge, the court of appeals found that

petitioners’ counsel had not exercised sufficient diligence

in this case. The court recognized that “lawyers cannot or-

dinarily be expected to memorize instantaneously the faces

of persons chosen to be on the jury as well as ihose excused.”

Pet. App. 9. At the same time, the court pointed out that:

“the lawyers are in the best position to notice a mistake in

time to correct it.” Jd. at 9-10. In this case, the court re-

marked that petitioners’ counsel “did notice, and did call

to the clerk’s attention, that the jurors were not taking their

seats in the order called. Counsel should not then have

disregarded his confusion; in this circumstance especially

he should have followed through and asked for verifica-

_ tion that the proper persons were seated.” Jd. at 10.

5

The court of appeals “assimilate[d] the prejudice element

of Cole” when it considered and rejected petitioners’ con-

tention that Mr. Holt’s service as a juror was a “plain error”

that led to a miscarriage of justice. Pet. App. 12. The court

concluded that (1) Mr. Holt was qualified to serve, (2) there

was no basis to challenge Mr. Holt for cause, (3) there was

no reason to suppose that Mr. Holt was biased against the

defense or in favor of the prosecution, and (4) Mr. Holt’s

participation on the jury did not affect the fundamental

fairness, honesty, or public reputation of the trial. Jd. at

11-12.

Finally, the court of appeals held that the government

did not waive its objection to a new trial by not responding

to petitioners’ motion for a new trial at the time it was made.

The court determined that the government’s prompt mo-

tion for reconsideration “adequately served the purpose of

the [contemporaneous objection] rule because it gave the

court the opportunity to correct itself before any waste of

time or resources.” Pet. App. 14. Moreover, unlike peti-

tioners’ failure to object to the seating of Mr. Holt on the

jury, the government “gained nothing by delaying its op-

position to the new trial.” bid.

Judge Williams dissented. He argued that “[uJnder the

due diligence requirement of Cole,” petitioners’ counsel “did

not waive the right to object to the improper juror.” Pet.

App. 17. In addition, he maintained that requiring peti-..

tioners to demonstrate prejudice “in the peremptory strike

context defeats the very nature of the peremptory strike

right.” Jd. at 25.

ARGUMENT

1. Petitioners renew their contention that they are en-

titled to a new trial because a member of the venire against

whom they had exercised a peremptory challenge took the

place of a proper member of the jury. Pet. 10-19.

es

6

The inadvertent seating of a peremptorily challenged

venireperson does not entitle a defendant to a new trial

unless (1) defendant’s counsel exercised sufficient diligence

to detect the error and bring it to the trial court’s attention,

or (2) the defendant suffered prejudice. United States v.

Cole, 796 F.2d at 381-382. Cf. United States v. Levesque,

681 F.2d 75, 80-81 (Ist Cir.), cert. denied, 459 U.S. 1089

(1982) (inappropriate seating of alternate juror). Those

prerequisites were not satisfied in this case. )

a. To be entitled to a new trial a defendant must exer-

cise sufficient diligence to bring the accidental seating of

a peremptorily challenged juror to the attention of the trial

judge before the jury returns its verdict. Every reported deci-

sion on this question has required due diligence. See United

States v. Cole, 796 F.2d at 381 (“If the defendant has not

exercised sufficient diligence to perceive the error and call

it to the court’s attention in timely fashion, prejudice must

be shown to obtain a new trial.” (citing Acosta v. State, 522

S.W.2d 528 (Tex. Crim. App. 1975), and Anderson v. State,

142 Tex. Crim. 384, 154 S.W.2d 482 (1941)); Sherman v.

State, 2 Ga. App. 148, 152-153, 58 S.E. 393, 395 (1907)

(ordering new trial because “this defendant, after having

positively rejected the juror, was tried by him without fault

on his part,” and distinguishing a case denying a new trial

on the ground that counsel had failed to exercise “due

P diligence”). See State v. Thompson, 68 Ariz. 386, 391, 206

P.2d 1037, 1040 (1949) (following Sherman v. State). in his

dissent, Judge Williams also endorsed the requirement of

due diligence because defense counsel cannot “depend en-

tirely on the court to seat the jury properly,” Pet. App.

18-19; accordingly, he applied the due diligence test of Cole

to the facts of this case, id. at 19. Even petitioners concede

that they must satisfy the Cole diligence test before they

are entitled to a new trial. Pet. 12-16.

7

Strong policy reasons underlie the requirement that

defense counsel exercise diligence in verifying that the proper

jury has been seated. To begin with, the diligence require-

ment prevents a defendant from gambling on a favorable

jury_verdict and later raising a claim of error if the verdict

is unfavorable. See United States v. Cole, 796 F.2d at 381.

Even in cases in which defense counsel’s failure to make

the objection is negligent rather than willful, the diligence

requirement prevents unnecessary retrials and thereby con-

serves scarce judicial resources.

Because there is no dispute about the governing legal

standard, the decision here turns on whether that standard

was satisfied on the facts of this case. The question whether

petitioners’ counsel exercised sufficient diligence is therefore

simply a factual issue that does not warrant this Court’s

review.

First, although petitioners’ counsel claimed in the court

of appeals that he “was not familiar with all the [venireper-

sons’] faces for lack of ability to study the faces,” Pet. C.A.

Br. 6, petitioners’ counsel deliberated 15 minutes while ex-

ercising his peremptory challenges, C.A. E.R. 31, and he

rose frequently from his chair at the counsel table to view

the members of the venire, Gov’t C.A. Br. 5. Petitioners’

counsel was particularly well positioned to become familiar

with Mr. Holt and Ms. Vasquez because they were in the

first two rows of jurors and petitioners’ counsel stood direct-

ly in front of them as he questioned them. Goy’t C.A. Br.

12, Annex B. Hence, petitioners’ counsel should have no-

ticed that Mr. Holt, a man, was taking the place of Ms.

Vasquez, a woman. Second, the courtroom deputy’s call-

ing of “Mr. Vasquez” to the jury box should have put peti-

tioners’ counsel on notice that something was amiss, because

the list on which petitioners’ counsel was following the

sealing process indicated that venireperson Vasquez was a

woman, not a man. Gov't C.A. Br. Annex C. Third, peti-

8

tioners’ counsel should have requested a roll call to verify

that the proper jurors had been seated when he became con-

fused because the jurors were not taking their seats in the

order they were called by the courtroom deputy. Pet. App.

10. Finally, whether or not defense counsel was “familiar

with the jurors by name and face, he had ample opportunity

to observe the jury composition during the trial and detect

that there was an extra male juror.” United States v. Cole,

796 F.2d at 382. Thus, petitioners had ample opportunity

to object to Mr. Holt’s service on the jury well before the

jury returned its guilty verdict. The district judge and the

court of appeals had a sound factual basis for finding that

petitioners’ counsel failed to exercise sufficient diligence.

Petitioners contend that the reviewing courts should have

deferred to the magistrate’s comment that “I find from all

appearances that this is no fault of any party.” C.A. E.R.

51. The magistrate’s finding, however, did not address the

proper issue. It was irrelevant under the Cole test whether

petitioners’ counsel caused the erroneous seating of Mr.

Holt; instead, the proper inquiry was whether petitioners’

counsel had been sufficiently diligent in discovering the

error. And even if the magistrate’s comment could be in-

terpreted as addressing the due diligence issue, it was en-

titled to little weight when measured against the compelling

indications that petitioners’ counsel failed to exercise

diligence in detecting the erroneous seating of the juror.

b. Mr. Holt’s substitution for Ms. Vasquez on the jury

in this case caused no prejudice to the petitioners. As the

court of appeals determined, Mr. Holt was qualified to serve

as a juror; there was no basis for a challenge for cause; there

was no reason to suppose that Mr. Holt was biased for or

against either party; and Mr. Holt’s service did not affect

the fundamental fairness of the trial. Pet. App. 11-12.

For those reasons, the unintentional seating of Mr. Holt

as a juror was not plain error. This Court has held that “the

7?

plain-error exception to the contemporaneous-objection rule

is to be ‘used sparingly, solely in those circumstances in

which a miscarriage of justice would otherwise result.’ ”

United States v. Young, 470 U.S. 1, 15 (1985) (quoting

United States v. Frady, 456 U.S. 152, 163 n. 14 (1982)). Such

circumstances are those in which particularly egregious

errors seriously affect the fairness, integrity, or public

reputation of judicial proceedings. United States v. Young,

470 U.S. at 15; United States v. Frady, 456 U.S. at 163;

United States v. Atkinson, 297 U.S. 157, 160 (1936). The

error in this case clearly does not rise to that level.

Contrary to petitioners’ submission, testing for prejudice

or plain error where a party has not objected to the er-

roneous seating of a peremptorily challenged juror does not

“undermine[] the very justification for peremptory

challenge.” Pet. 19. Of course, a peremptory challenge is

exercised independent of any basis for a challenge for cause.

For that reason, it is sometimes said that denial of the de-

fendant’s right to a peremptory challenge is reversible er-

ror without the need to show prejudice. Swain v. Alabama,

380 U.S. 202, 219 (1965). But see Ross v. Oklahoma, 108

S. Ct. 2273, 2278-2279 (1988). In this case, however, peti-

tioners have not been denied the right to a peremptory

challenge: their counsel’s lack of diligence allowed a peremp-

torily stricken venireperson to take a seat on the jury. In

that circumstance, counsel’s failure to object to the seating

of a stricken venireperson is tantamount to a failure to ex-

ercise the right to make a peremptory challenge. It follows

that the courts below, in declining to excuse petitioners’

failure to object absent a showing of prejudice, did not act

contrary to the rationale underlying peremptory challenges.

In any event, from the paucity of appellate decisions on

this issue, it is clear that problems like the one that arose

in this case occur very infrequently. The decision in this case

will therefore not have a significant impact on the ad-

10

ministration of the criminal justice system. For that reason

as well, this case does not merit review by this Court.

2. Petitioners also contend, Pet. 19-23, that the govern-

ment waived any objection to petitioners’ motion for a new

trial by not objecting to it at the time it was made. As the

court of appeals held, however, the government’s motion

for reconsideration was sufficiently timely to satisfy the

contemporaneous-objection rule. Pet. App. 13-14. Not only

did the government’s motion give the trial court an oppor-

tunity to correct its error before any waste of time or

resources had occurred, but the government gained nothing

by failing to make an immediate objection to the new trial

motion. Jd. at 14.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

SHIRLEY D. PETERSON

Assistant Attorney General

ROBERT E. LINDSAY

ALAN HECHTKOPF

Altorneys

OCTOBER 1989

vw” US. GOVERNMENT PRINTING OFFICE: 1989— 262 203/00579

ET TIENT, GY,