Petition for Writ of Certiorari — Civelli v. United States

| _ Supreme Court

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CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1989

Oscar CIVELLI,

Petitioner,

U. *

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STANLEY NEUSTADTER

Attorney for Petitioner

342 Madison Avenue

Suite #1002

New York, New York 10017

(212) 348-6469

October 14, 1989

+

WOSEPH F. SPANIOL UR,

eee —

-§

Question Presented

Whether petitioner’s Fifth and Sixth Amendment rights

to counsel and to Due Process of Law [Herring v. New

York, 422 U.S. 853 (1975)], as well as F. Rule Crim. P. 30,

were violated when, after the district court had indicated it

would give only “actual knowledge’’ instructions and

after petitioner had already given his summation tailored

to that theory of knowledge culpability, the district court

abruptly shifted to a “‘conscious avoidance‘ theory of

knowledge in supplemental instructions, a theory upon

which neither side tried the case or argued to the jury?

ill

TABLE OF CONTENTS

Question Presented ........ eS ES i

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REASONS FOR GRANTING THE WRIT:

I. The Court should clarify the underlying assump-

tion in Herring v. New York, 422 U.S. 853

(1975), by explicitly applying the holding in

that case to jury trials in criminal cases ....... 9

II. The Court should eliminate the apparently

disparate application of F. R. Crim. Proc. 30

ETUUNEEE sn ccc csssavesesccevebhan 13

Tee esp aeeecenees 15

APPENDIX

Opinion of the United States Court of Appeals for

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TABLE OF AUTHORITIES

Cases Cited:

Herring v. New York, 422 U.S. 853 (1975) ........ passim

Ross v. United States, 180 F.2d 160 (8th Cir. 1950).. 14

United States v. Blackmon, 838 F.2d 900 (2d Cir.

a wan 5 a prae dike chess viebes ee 8 14

United States v. Gaskins, 849 F.2d 454 (9th Cir. 1988)12, 14

United States v. Gleason, 616 F.2d 2 (2d Cir. 1979).. 14

ee

IV

TABLE OF AUTHORITIES

United States v. Lanza, 790 F.2d 1015 (2d Cir. 1986). — 11

United States v. Morales, 577 F.2d 768 (2d Cir. 1978) = 11

United States v. Murrietta-Bejarano, 552 F.2d 1323

AR 5: See ere are eee 12

United States v. Wander, 601 F.2d 1251 (3d Cir. 1979) 14

Constitutional Provisions:

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Statutes and Rules:

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Federal Rules of Criminal Procedure

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OO Pe Teer re Teer Sree eer eee eee passim

Rules of the Supreme Court, Rule 20.1 ..... nines 2

Other Authorities:

Annotation, Court’s Duty to Inform Counsel of

Proposed Action on Requested Jury Instructions

Under Fouts FO, FO ALR GOs ow cc ccc ccccccces 14

Devitt & Blackmar, Federal Jury Instructions in

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TABLE OF AUTHORITIES

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1 LaFave & Scott, Substantive Criminal Law, § 3.5..

Sand, et al., Modern Federal Jury Instruciions, #56-8

A

ee cy ee ee

In the

Supreme Court of the United States

OCTOBER TERM, 1989

Oscar CIVELLI,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Second Circuit, entered in the

above-titled proceeding on August 15, 1989, which af-

firmed petitioner’s judgment of conviction.

Opinion Below

The opinion of the Court of Appeals for the Second

Circuit is reported at 883 F.2d 191, and is reprinted in the

Appendix hereto, beginning at p. la, post.

Jurisdiction

‘Petitioner was indicted, tried and convicted in the

United States District Court for the Eastern District of

New York of one count of conspiracy to possess cocaine

with intent to distribute [21 U.S.C. §§841(a)(1), 841(b)(1)(C),

846] and one count of possession of more than 5 kilograms

2

of cocaine with intent to distribute [21 U.S.C. §841(a)(1),

841(b)(1)(A)(11)(11); 18 U.S.C. §2]. Petitioner’s appeal to

the Second Circuit resulted in an affirmance on August 15,

1989.

The jurisdiction of this Court to review the judgment of

the Second Circuit is invoked pursuant to 28 U.S.C.

§1254(1). This petition is filed within the ume permitted

by Rule 20.1 of this Court.

Statute Involved

Federal Rule of Criminal Procedure, Rule 30:

Rule 39. Instructions. -

At the close of the evidence or at such earlier

time during the trial as the court reasonably

directs, any party may file written requests that

the court instruct the jury on the law as set forth

in the requests. At the same time copies of such

requests shall be furnished to all parties. The

court shall inform counsel of its proposed action

upon the requests prior to their arguments. to the

jury. The court may instruct the jury before or

after the arguments are completed or at both .

times. No party may assign as error any portion

of the charge or omission therefrom unless that

“party objects thereto before the jury retires to

consider its verdict, stating distinctly the matter

to which that party objects and the grounds of

the objection. Opportunity shall be given to

make the objection out of the hearing of the jury

and, on request of any party, out of the presence

of the jury. ;

3

Statement of the Case

Introduction

Petitioner is a long-time resident alien from Argentina

with no prior arrests The charges against him evolved

from police discovery of about 18 pounds of cocaine in a

van he was driving. The contraband, in brick form, was

packed in four closed, but unsealed, manila envelopes;

petitioner had picked the packages up at the home of one

Diego Bedoya in Staten Island, New York, and was on his

way back to Queens, New York (some 20 miles away) when

he was arrested. At the jury trial that ensued, the only

contested issue was whether petitioner knew that the

packages he carried in his van, and which he had possessed

for only a few minutes, contained drugs.

The Government introduced circurnstantial evidence

which assertecly indicated petitioner’s actua! knowledge,

and relied heavily on police testimony that petitioner had,

in fact, directly admitted his culpable knowledge to the

arresting officers during questioning.

Petitioner, on the other hand, testifying on his own

behalf and bolstered by three character witnesses, denied

any knowledge of the envelopes’ contents, insisted that he

was simply delivering packages, and that, like any common

deliveryman, he did not look inside the packages he was

given to transport.

The Government’s Case

Unknown to petitioner, the Staten Island home where

he picked up the packages had been under police surveil-

lance; so when petitioner arrived, he was observed entering

the house and then leaving it ten minutes later, packages

in hand. None of the surveillance officers saw appellant

look inside the packages.

4

Officers followed petitioner’s van, and saw the van stop

three times in Staten Island, with petitioner exiting the

van each time to look behind him, then continue on his

way. Petitioner drove across Staten Island and into Brook-

lyn, where he eventually stopped at a small market and

made a phone call.

At that point, the officers approached petitioner as he

was about to reenter the van. One officer testified that

petitioner seemed very nervous during this encounter,

particularly when the officer informed him that the Staten

Island house he was just seen leaving was a suspected drug

distribution center. The officer asked petitioner what was

_in the bags, and petitioner pulled out one bag and showed

it to the officer. Before the officer could open the package,

petitioner admitted that the bags contained cocaine, and

also told police that he was paid $200 for the round trip.

The remaining three bags were then removed from the

van. Each had a name written on the outside. The officers

also recovered from petitioner’s person a list of names,

corresponding to the names on the envelopes, with a

telephone number next to each name. A beeper was also

recovered.

Cross examination attacked the officer’s credibility, and

focused on the fact that neither his daily activity report

nor his surveillance report had noted that petitioner had

driven and stopped his car suspiciously; nor did the officer

reduce petitioner’s confession to writing for him to sign.

Cross examination also revealed that there were no hidden

compartments in the van, and that petitioner had left the

door to the van unlocked. The officer insisted, though,

that petitioner had in fact admitted the packages contained

drugs before, and not after, the packages were opened at

arrest.

~~~

—— ee

The Defense

Petitioner, who at the time of trial was a waiter, had

once worked for a local messenger service,! and had

operated a deli/candy store in Queens for several years, an

enterprise he closed down when he could not afford the

rent on the new lease.

For a number of years, including when he operated his

store, petitioner had also offered his services as a free-lance

moving man, and had posted a business card in his shop

to announce his availability as mover. Petitioner estimated

that during 1987 he had earned about $1,500 from this

‘work.

Amongst his store customers were the Bedoyas, who had

hired him on four prior occasions to move household

items between various metropolitan locations, including

three trips to the Bedoya home on Staten Island.

On the day of his arrest, Bedoya phoned petitioner at

home and asked him to come to Staten Island to pick up

something for a delivery, with Bedoya assuring him that

the trip would not take too long. Petitioner drove the 20

miles to Bedoya’s home, where Bedoya handed him the

four bags. Bedoya also dictated the list of names and

phone numbers, and gave him a beeper, telling him that a

man named Freddie would reach him on the beeper to

arrange pick-up of the packages. Bedoya gave no further

information or instructions about the transport or handling

of the packages, and after haggling about the price for the

round trip, the two men settled on a price of $100.

Petitioner insisted that he had no idea what was inside

the envelopes, but that he assumed they contained costume

jewelry, as Bedoya had once told him he was in that

business. Petitioner also sharply disputed key portions of

the officer’s testimony, taking particular pains to stoutly

' A document admitted into evidence showed that the mes-

senger service had issued him a beeper for use in his work.

6

deny that he had stopped the van suspiciously, and to

deny that he had admitted that he knew the envelopes

contained cocaine. Petitioner was adamant that when the

officers retrieved the bag and opened it, they said, ‘““You

know what this is—this is cocaine.” Petitioner, who had

seen cocaine only on TV and in the movies, said, ‘“Well, it

looks like cocaine.’’ He insisted that he did not know the

envelopes contained drugs until the officer showed him

the contents.

Petitioner also produced three character witnesses: a

veteran police officer and former customer at petitioner’s

store, an attorney who worked for the City of New York,

and the head of a local chamber of commerce who was

petitioner’s tax accountant.

Summations _

Before summations, the district judge gave counsel a

copy of the jury instructions he intended to give.

In its opening summation, the Government reviewed

the police testimony, emphasizing petitioner’s admission

of knowledge of the envelopes’ contents. The Government

further argued that petitioner’s trial testimony couldn’t

possibily be true because Bedoya would not have entrusted

him with valuable and unsealed packages of cocaine

unless Bedoya already knew that petitioner was aware of

the contents and how to handle them. The Government

characterized petitioner’s denials and his contradiction of

the police testimony as ‘‘consciousness of guilt,’ and his

story as unworthy of belief, and | that only the officers were

telling the truth.

The defense summation responded in kind. Arguing

that police can lie and “‘puff,’’ and noting the absence of

any corroborating detail in the written police reports and

the fact that petitioner had been under consistent surveil-

lance but was not seen to have opened the bags, the

defense pointed to the character evidence and asserted that

7

petitioner was telling the truth when he denied knowledge

of the contents of the envelopes.

The Jury Instuctions

The instructions were straightforward and routine, and

included the “knowledge’”’ instruction that had been shown

to counsel before summations:

I wish to discuss one element which is common

to both Counts One and Two and which the

government must prove beyond a reasonable

doubt. Before the defendant may be found guilty

of possessing cocaine with intent to distribute it,

or comspiracy to possess cocaine with intent to

distribute it, the government must prove beyond

a reasonable doubt that the defendant knew the

packages in the van contained cocaine.

In determining whether the government proved

the requisite element of knowledge, you may

consider ali the facts and circumstances and all

the inferences which could be logically drawn

therefrom, provided that such evidence satisfies

you beyond a reasonable doubt that the defendant

knew he was in possession of cocaine.

At no time, neither before nor after the instructions, did

either side request any instructions or voice objections to

the charge as given.

The Jury Note and the Court’s

Supplemental Instructions

In the midst of deliberations, the jury sent a note to the

court asking whether it could find petitioner guilty if he

hadn’t looked inside the envelopes but had “‘suspected”’

they contained drugs.

The district judge immediately suggested that a ‘‘con-

scious avoidance” instruction would be appropriate, but

8

defense counsel, distressed that this theory be injected into

the case so late, asked ‘“‘You’re going to charge ‘conscious

avoidance’ now?” After further prompting by the Govern-

ment, and without permitting counsel to give a supple-

mental summation addressing that theory, the court issued

an instruction defining the elements of “conscious avoid-

ance’ as follows:

If you find from all the evidence beyond a

reasonable doubt that the defendant was aware of

a high probability that cocaine was hidden in

those envelopes, but deliberately closed his eyes

to that probability, you may treat his deliberate

avoidance of positive knowledge, that’s the equiva-

lent of knowledge.

The jury convicted, and petitioner was later sentenced to a

mandatory 10-year term for the possessory count and to a

78-month guideline sentence on the conspiracy count.

The Appeal

Petitioner’s central argument was that the sudden inter-

jection of a “conscious avoidance” theory of knowledge

culpability in the supplemental instructions—after the

entire case had been tried by both sides only on a theory of

‘actual knowledge” and after the defense had been told

that the case would go to the jury only on an “actual

knowledge’ theory and had tailored his summation only

to that theory—trenched upon his Sixth and Fourteenth

Amendment right to present closing argument [Herring v.

New York, 422 U.S. 853 (1975)] and violated the purposes

of F. R. Crim. Proc. 30.

The Court of Appeals recognized that the “requirement

that counsel be informed of the instructions to be given

before closing argument is an important safeguard of the

right to a full and fair trial by jury” [lla-12a], but rejected

the argument on the grounds that (a) ‘“‘the question of

eR ES eh RENE NS Stee Vt) ee

9

appellant’s conscious avoidance of knowledge concerning

the contents of the envelopes was a close logical comple-

ment of the arguments and evidence already given’’ [12a];

and (b) the issue was imperfectly preserved as counsel’s

objection to the timing of the instruction [‘‘You’re going

to charge conscious avoidance now?’’] was too imprecise

and counsel did not ask to re-open his summation to

address the conscious avoidance question [8a].

REASONS FOR GRANTING THE WRIT

I.

The Court should clarify the underlying assump-

tion in Herring v. New York, 422 U.S. 853 (1975), by

explicitly applying the holding in that case to jury

trials in criminal cases.

The opportunity to present closing argument is more

than a discretionary courtesy extended to counsel. It is,

instead, a matter of federal constitutional right, “‘a basic

element of the adversary factfinding process” and the “‘last

clear chance to persuade the trier of fact that there may be

a reasonable doubt of the defendant’s guilt . . . the oppor-

tunity to finally marshall the evidence for each side before

submission of the case to judgment.” Herring v. New

York, 422 U.S. 853, 858, 861 (1975).

These precepts were given short shrift by the ruling

below, probably because this Court has never explicitly

held that a criminal defendant has a right to present a

summation to the jury on the elements of the offense

charged against him.

Herring, of course, dealt specifically only with whether

a criminal defendant had a constitutional right to sum up

in a judge trial. Though this Court implicitly assumed

that there was a constitutional right to sum up in a jury

trial and cited some 26 state cases for that proposition [422

10

U.S. at 858, n. 8], it cited none of its own cases and no

federal cases which have explicitly so held; and our

research has disclosed none. The record in this case

presents an appropriate opportunity to render the implicit

into the explicit, the assumed into the announced.

From beginning to end, petitioner steadfastly claimed

that he did not know that the packages Bedoya paid him

to carry contained drugs, that Bedoya never told him what

the packages contained, and that he didn’t look into the

packages any more than any moving man would look into

packages consigned for hired delivery. With equal stead-

fastness, the Government—from its opening statement

through its choice of witnesses and in its own summation

—has claimed that petitioner had actual knowledge of

what he was carrying, indeed, that he had confessed his

knowledge to the arresting officers, and that his protesta-

tions to the contrary on the witness stand were unworthy

of belief. At no point prior to jury deliberations did the

Government seek “conscious avoidance’ instructions. In

sum, this case was tried as a simple credibility battle

between the arresting officers and a hard-working taxpayer

with no criminal record whose reputation for honesty was

vouched for by three unimpeachable character witnesses.

Accordingly, the district court’s original instructions,

which it had showed to counsel before the court com-

menced instructions, consisted of the routine instructions

suitable for a routine case of this sort, taking special note

only of the single contested issue—petitioner’s knowledge

—in the standard chargebook? language of ‘‘actual knowl-

edge.”’

Matters abruptly shifted when, in the midst of its

deliberations, the jurors sent in a note asking whether

petitioner could be found guilty if he had “‘suspected”’ he

2 See, e.g., Devitt & Blackmar, Federal Jury Instructions in

Criminal Cases, at §14.08; Sand, et al., Modern Federal Jury

Instructions, #56-8.

ss sa ME Heme ela e ae oe NRA

1]

was Carrying cocaine but didn’t look in the packages. This

was a telling question, as it indicated that the jury rejected

the sole theory of knowledge liability advanced by the

Government, 1.e., that petitioner had actual knowledge of

the contents and had so admitted to police. Nonetheless,

and despite a defense objection [“‘You’re going to charge

‘conscious avoidance’ now?’’], the district court gave the

jury a new theory of knowledge liability upon which

neither side, but most importantly the defense, had ad-

dressed at any previous point in the trial or in summation.

The abrupt post-summation shift in the theory of

knowledge liability offered to the jury, and by which they

were allowed to find petitioner guilty, deprived him of a

fair chance to argue against that theory to the jury.

The straightforward and routine ‘‘actual knowledge”’

instruction the judge promised to, and did, give was a far

cry from the theory of knowledge explained by the ‘‘con

scious avoidance” supplemental instruction. While “actual’’

knowledge required a finding simply that petitioner “knew

that the packages contained cocaine,” the Johnny-come-

lately ‘conscious avoidance” theory involved an elaborate

review of scattered factual data and required a tripartite

finding that petitioner (a) was aware (b) of a high proba-

bility that cocaine was inside thé packages and (c) deliber-

ately closed his eyes to that probability. Indeed, even the

trial judge recognized that he was introducing something

very new and different into the case, as the “conscious

avoidance” theory was explicitly set forth in the disjunc-

tive, as an alternative to the actual knowledge theory he

had originally charged.’

> It is true, of course, that the case law, the commentators and

even the Model Penal Code [§202(7)] have concluded that a

defendant’s “conscious avoidance’’ of knowledge carries with it

the same culpability quotient as “actual knowledge.” See gen-

erally, discussions in United States v. Morales, 577 F.2d 768,

773-775 (2d Cir. 1978); United States v. Lanza, 790 F.2d 1015,

1021-1024 (2d Cir. 1986); 1 LaFave & Scott, Substantive Criminal

(footnote continued on following page)

12

Counsel thus never had a chance to argue against the

tripartite elements of “conscious avoidance’’* and never

had the opportunity to marshall the facts against such a

finding. The jury was simply never given the defense view

of how the facts on the record might have been construed

in petitioner’s favor, and how the evidence actually count-

ered any conclusion that there was a “high probability”

that the packages contained cocaine, that the petitioner

was ‘“‘aware”’ of that high probability, and that he “deli-

berately closed his eyes” to it. For all practical purposes

then, the jury’s verdict, based solely on the “conscious

avoidance” instruction, was unnourished by any defense

input on the distinct elements of that theory of knowledge

culpability or of the facts that might have been marshalled

to support it.5 In a word, petitioner had no “opportunity

finally to marshall the evidence before submission of the

case for judgment” [Herring, supra, at 858].

(footnote continued from preceding page)

Law, § 3.5 at pp. 307-308. Nonetheless,-the two bases of liability

are as distinct in theory, and thus in the facts that might be

marshalled to the jury, as the liability of an aider is distinct in

theory and fact frem the liability of a principal, though each be

que” culpable [United States v. Gaskins, 849 F.2d 454 (9th

ur. 1988).

4 “Conscious avoidance’’ instructions, quite apart from the

Herring and Rule 30 problems present here, have long been

controversial [see, e.g., United States v. Murrieta-Bejarano, 552

F.2d 1323, 1326 (9th Cir. 1977) [Kennedy, J., concurring in part

and dissenting in part] and have been a fertile field of appellate

litigation for years, generating many petitions for certiorari to

this Court [see cases collected at Devitt & Blackmar, Federal

Jury Instructiags in Criminal Cases, at §14.09, “Guilty Knowl-

edge’’]. Since counsel’s objection to the supplemental instruction

went solely to its timing rather than its content, we do not raise

any issue here with respect to the substance or merits of the

“consciou’ avoidance”’ language itself.

5 The defense could have marshalled many record facts against

the three elements of “‘conscious avoidance’’: (1) petitioner, who

had no criminal record, had been called out to the Bedoya home

in broad daylight, during normal mid-week working hours, by

(footnote continued on following page)

13

II.

The Court should eliminate the apparently disparate

application of F. R. Crim. Proc. 30 by the Second

Circuit.

Although F. Rule Crim. Proc. 29.15 specifies the se-

quence which each party’s summation is to be given, it is

(footnote continued from preceding page)

someone who had hired him on other occasions to perform

moving services; (2) the job he was asked to perform was within

the range of delivery jobs he had performed with his van for

others; (3) he had prior experience not only as a self-employed

mover, but had pe a worked for a messenger service

which, according to the Government’s own documents, had

provided him with a beeper; (4) the Government never offered

proof that the amount petitioner was paid to maké a last-

minute 35-mile round trip was distinctively and suspiciously

higher than the fee that any other licensed courier would have

charged for the same service; (5) the Government, which had

searched the Bedoya home a few hours later, produced no

evidence that there were conspicuous accoutrements of drug

trafficking open and visible in the home, such as scales,

packaging a. diluents, cash, weapons, or a steady in-

and-out traffic of strangers; (6) Bedoya gave petitioner no

special instructions on how to handle, store or protect the

packages, and gave him no weapon, all of which might

otherwise have put petitioner on notice of their unusual and

.- highly priced contents. These facts, though extraneous to the

simple “actual knowledge’’/credibility case both sides had pre-

sented, were central to any jury evaluation of petitioner’s (a)

awareness (b) of a high probability that cocaine was hidden in

the packages and (c) deliberate eye-closing—the elements of

conscious avoidance submitted to the jury.

> The Court of Appeals made much of the fact that petitioner’s

counsel did not ask to reopen summations to address the newly-

injected “conscious avoidance’ theory and its distinctive ele-

ments. The plain fact of the matter is, though, that the Rules of

Criminal Procedure do not authorize a reopening of summa-

tions. The mandatory language of Rule 29.1 as well as the 1975

Advisory Committee notes make it clear that one of the rule’s

purposes was to enact a uniform federal practice. True, the case

law reveals isolated instances where either counsel requests to

(footnote continued on following page)

sna

14

Rule 30 which was designed to prevent the kind of trial-

by-surprise sandbagging that occurred here. That rule was

intended “‘to require the court to inform the trial lawyers

in a fair way what the charge is going to be, so that they |

may intelligently argue the case to the jury” Ross v.

United States, 180 F.2d 160, 165 (8th Cir. 1950).

Though the cases interpreting Rule 30 differ to some

degree on the finer quibbles of its applicability [see

generally, Annotation, Court’s Duty to Inform Counsel of

' Proposed Action on Requested Jury Instructions Under

Rule 30, 40 ALR2d 495], the decisions are unanimous to

the effect that a court’s actual instructions may not materi-

ally depart from promised instructions to the detriment of

the defense ability to address and marshall germane factual

arguments. Gaskins, supra [at charging conference, court

told counsel that it would instruct jury on defendant’s

liability as principal; actual instructions charged on aiding

and abetting; held: though culpability is the same under

either theory, each involved different legal and factual

theories, and reversed conviction]; United States v. Wander,

601 F.2d 1251, 1260-1262 (3d Cir. 1979) [prejudicial Rule

30 violation where, after summations, court changed theory

of extortion liability it had told counsel it would give

before summation]; United States v. Blackmon,

838 F.2d 900, 910 (2d Cir. 1988) [same, with regard to

vicarious Pinkerton liability instruction in conspiracy

case].

ow enaatre

(footnote continued from preceding page)

reopen [Gaskins, supra] or where the court invites a reopening

[United States v. Gleason, 616 F.2d 2, 26 (2d Cir. 1979)]. But in

the final analysis, a reopening of a summation is a highly

unorthodox event of dubious validity under Rule 29.1; given the

gravity of the prejudice which petitioner suffered by dint of the

abrupt shift in theories of knowledge, it seems grossly unfair to

tax him with a procedural forfeiture for failing to think of it.

Indeed, we know of no similar case where failure to seek a

reopening operated to forfeit review of a right to summation or

Rule 30 claim.

15

Thus, whether this case is viewed as a Herring case or as

a Rule 30 case, the upshot is the same: because counsel

tailored his summation to the only theory of knowledge

the entire case was tried on and to the only theory of

knowledge the trial judge said he would charge the jury,

the abrupt shift after summations from actual knowledge

to the distinctly different theory of “conscious avoidance”’

deprived the petitioner of the opportunity to address the

only theory upon which the jury found him knowingly

culpable. The criminal trial mill is not so short of grist

that it need countenance a conviction obtained by such

sandbagging.

CONCLUSION

For the foregoing reasons, this Court is respect-

fully urged to grant this petition for certiorari. ‘

Respectfully submitted,

STANLEY NEUSTADTER

Attorney for Petitioner

342 Madison Avenue

Suite #1002

New York, New York 10017

(212) 348-6469

Dated: October 14, 1989

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—_"*

No. 1321—August Term, 1988

(Argued: June 22, 1989 Decided: August 15, 1989)

Docket No. 89-1073

—

UNITED STATES OF AMERICA,

Appellee,

—V

OSCAR CIVELLI,

Defendant-A ppellant.

Before:

MESKILL, PIERCE, and MAHONEY,

Circuit Judges.

_

Appeal from a judgment of the United States District

Court for the Eastern District of New York (Korman, J.),

convicting appellant on two counts of narcotics violations.

Appellant contends on appeal that the district court erred

when, in response to a question from the jury, it gave a

supplemental charge regarding ‘‘conscious avoidance.”’

Affirmed.

ae

2a

STANLEY NEUSTADTER, Esq., New York,

N.Y., for Defendant-Appellant.

JACQUES SEMMELMAN, Assistant United

States Attorney, Brooklyn, N.Y. (Andrew

J. Maloney, United States Attorney for

the Eastern District of New York, John

Gleeson, Assistant United States Attor-

ney, Brooklyn, N.Y., of counsel), for

Appellee.

PIERCE, Circuit Judge:

Oscar Civelli appeals from a judgment of the United

States District Court for the Eastern District of New York

(Korman, J.) convicting him of conspiracy to possess

cocaine with intent to distribute, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), 846, and possession of in excess of five kilo-

grams of cocaine with intent to distribute, 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii)(IT), 18 U.S.C. § 2. At the

time he was apprehended, appellant was carrying in his

van almost nine kilograms of cocaine in four large manila

envelopes. The openings to the envelopes were folded

over, but not sealed. At his trial, appellant testified that he

was simply delivering the packages, and that he did not

know what was inside the envelopes. Although both sides’

closing arguments and the court’s instructions focused on

appellant’s actual knowledge, during the course of deliber-

ations the jury sent a note to the court asking whether it

was enough that appellant suspected that he. was carrying

narcotics. In response, the court discussed the matter with

counsel and, with no meaningful objection from defense

counsel, gave the jury a supplemental instruction regard-

3a

ing appellant’s possible ‘‘conscious avoidance’’ of knowl-

edge of the contents of the packages. On appeal, appellant

contends that the court erred in giving the supplemental

instruction because (1) the evidence was not sufficient to

warrant a conscious avoidance charge, and (2) the appel-

lant was never afforded an opportunity to argue the ques-

tion of conscious avoidance to the jury. For the reasons

stated below, the judgment of the district court is

affirmed. 7

BACKGROUND

On the morning of April 22, 1988, appellant received a

telephone call at his Queens, New York apartment from

one Diego Bedoya, who asked appellant to drive to

Bedoya’s home in Staten Island, New York, to make a

delivery for him. (Bedoya’s conviction and sentence were

the subject of an earlier decision of this court, United

States v. Bedoya, No. 88-1554 (2d Cir. June 23, 1989) (per

curiam)). Appellant had on occasion offered commercial

delivery and moving services, and he had moved house-

hold items for Bedoya and his wife several times before.

Appellant left his apartment shortly thereafter, and drove

in his van to Bedoya’s home on Staten Island. Bedoya’s

home was under surveillance by a joint federal/city nar-

cotics task forte, as a suspected center of narcotics distri-

bution. Appellant was observed arriving at the house

shortly after 1 p.m., and emerging approximately ten min-

utes later, carrying four large tan envelopes. As appellant

drove away, he was followed by two officers from the task

force.

One of the officers, Detective Pritchard, subsequently

testified that appellant drove for a few blocks and then

pulled over to the curb, alighted from the van, walked

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toward the rear of the vehicle while looking back at

approaching traffic, and then reentered the van and pro-

ceeded further. Pritchard testified that appellant stopped

twice more, again leaving the van and looking to the rear;

he finally drove across the Verrazano Narrows Bridge into

Brooklyn. Once in Brooklyn, appellant left the highway

and stopped at a small supermarket, where he made a call

from a public telephone. :

The officers from the surveillance team approached

appellant as he was about to reenter his van. While one

officer asked appellant for his license and registration, the

other peered into the van and saw the four envelopes.

Detective Pritchard testified at trial that appellant

appeared extremely nervous during this questioning. The

officers told appellant that the house he had left in Staten

Island was suspected of being a center of drug trafficking,

and they asked him what was in the packages in the van.

Appellant pulled one of the envelopes from the van to

show the officers. At the officers’ request, Civelli opened

the package. Detective Pritchard’examined the contents,

and discovered several bricks of cocaine. The officers then

placed Civelli under arrest; the other three envelopes

which were seized also contained cocaine.

The officers recovered a total of approximately 8.5 kilo-

grams of 96% pure cocaine from the four envelopes,

packed in brick form. Each envelope was folded shut, not

sealed, and each had a name written on the outside. The

officers also recovered a telephone beeper and a list of

names from appellant. The list was in Civelli’s handwrit-

ing, and the names on the list corresponded to the names

on the envelopes. There was a telephone number next to

each name on the list, and a circled digit which corre-

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sponded to the number of bricks of cocaine in each of the

labeled envelopes.

Appellant was indicted for conspiracy to possess

cocaine with intent to distribute, and possession of in

excess of five kilograms of cocaine with intent to distrib-

ute. A third count, involving use of a firearm, was

dropped on the government’s motion prior to trial, but

Civelli was convicted after a three-day trial on the conspir-

acy and distribution counts.

The key question at trial, as identified in opening and

closing statements, was whether appellant knew he was

carrying narcotics. Detective Pritchard testified appellant

had acknowledged that the packages contained cocaine

before the first envelope was opened. Appellant, who tes-

tified in his own defense, vigorously denied that he made

such a statement. He testified that he never knew what was

inside the packages until they were opened by the officers.

He conceded that he had prepared the list of names seized

by the police, but he stated that he had transcribed the list

verbatim at Diego Bedoya’s direction and, further, that

Bedoya was to pay him only $100 to take the packages.

Appellant testified that Bedoya had told him a person

named ‘‘Freddie’’ would use the beeper to page appellant

at his place of work, and Freddie would pick up the pack-

ages from appellant.

In summations, the government argued that appellant

had actual knowledge of the contents of the packages; the

defense argued that appellant was just an innocent dupe in

a broader narcotics distribution ring. The court’s instruc-

tions to the jury were also directed to appellant’s actual

knowledge. Judge Korman instructed the members of the

jury that, in order to find the defendant guilty on either

the conspiracy or the substantive count, they had to find

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that the government had ‘‘prove[d] beyond a reasonable

doubt that the defendant knew that the packages in the

van contained cocaine.’’

During the course of deliberations the jury sent a note to

Judge Korman asking:

If Oscar Civelli suspected that he was carrying

cocaine, but didn’t look in the package[,] would that

have constituted conspiracy?

The note precipitated the following colloquy:

THE COURT: It seems to me an appropriate charge

is the conscious avoidance charge.

MR. JENKS [for appellant]: You’re going to charge

conscious avoidance now?

THE COURT: There is no yes or no answer [to the

note] in a meaningful way.

MR. SHERIDAN [for the government]: If the charge

is conspiracy, which as we know, as I know, your

charge is in agreement. I don’t see [why] looking in

the bag is the sine qua non for the crime. It seems to

me the question is, [Y]ou have to look in the package

to have been involved in the conspiracy[?]

THE COURT: The point that you make is one of the

reasons why it’s difficult to answer the question yes or

no.

Obviously he had to look in the bag, he had to

agree to possess cocaine and that would be enough.

But in the context of this case, looking at the facts of

this case and the way the case is tried, there is no way

that he can be guilty of conspiracy if he doesn’t know,

if you believe him.

7a

MR. SHERIDAN: But he could know without look-

ing in the bag—

MR. JENKS: I don’t think the question can be

answered with a yes or no.

THE Court: If he entered into a conspiracy—but

as the case is tried there is no way to convict unless the

jury feels he knew cocaine was in the bag. If the jury

is Operating on some assumption he may have sus-

pected it but didn’t look, the best way to deal with it

and the fairest way is the [conscious] avoidance

charge....

[Discussion between the court and the prosecutor

of the charge required under United States v.

Feroz, 848 F.2d 359 (2d Cir. 1988).]}

THE COuRT: I remember when I read Feroz, that it

was something that I usually gave, the full charge.

Read this.

(Mr. Sheridan and Mr. Jenks perusing document

handed to them by the Court.)

MR. SHERIDAN: This charge incorporates what the

Second Circuit says must be incorporated.

THE COURT: . . . Bring the jury in.

The court delivered its charge regarding conscious avoid-

ance to the jury, and, after resuming deliberations, the

jury thereafter returned verdicts of guilty on both counts.

The court subsequently sentenced appellant to a term of 78

months’ imprisonment on the conspiracy count, to run

concurrently with a mandatory minimum sentence of 10

years’ imprisonment on the substantive count. This appeal

followed.

8a

DISCUSSION

Appellant presents two claims on appeal, both of which

stem from the supplemental conscious avoidance charge

given the jury. First, he contends that the record evidence

did not warrant a conscious avoidance charge. Second, he

argues that, even if there was a sufficient factual predicate

for giving the charge, the district court erred by not

affording appellant an opportunity to argue the question

of conscious avoidance via summation to the jury.

We note at the outset that appellant’s claims are severely

undercut by his failure to make a proper objection at trial

to the district court’s proposed instruction. Counsel’s

almost casual complaint—‘‘You’re going to charge con-

scious avoidance now?’’ (probable emphasis)—in no way

qualifies as the distinct and well-grounded objection

required by Rule 30 of the Federal Rules of Criminal Pro-

cedure. To preserve a question for appellate review, the

objection must direct the trial court’s attention to the con-

tention that is to be raised on appeal. See United States v.

Lanza, 790 F.2d 1015, 1021! (2d Cir.), cert. denied, 479

U.S. 861 (1986). This, defense counsel plainly failed to do.

Counsel’s further comments during colloquy with the

court only compounded his earlier failure, for his com-

ments were expressions of acquiescence, not exception.

Furthermore, defense counsel failed to request that he be

allowed to reopen his summation to address the question

of conscious avoidance.

Since appellant’s objections to the conscious avoidance

charge are essentially being raised for the first time on

appeal, ‘‘the question before us is whether the district

judge’s inclusion of the conscious avoidance [charge] con-

stituted plain error.’’ Lanza, 790 F.2d at 1021; see Fed. R.

Crim. P. 52(b). Thus, we may not reverse unless we believe

Se ee

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that there has been a miscarriage of justice which denied

the defendant a fair trial. United States v. Kallash, 785 |

F.2d 26, 29 (2d Cir. 1986) (citing United States v. Frady,

456 U.S. 152, 163 (1982)); see United States v. Cano, 702

F.2d 370, 371 (2d Cir. 1983). As our discussion below

reveals, no miscarriage of justice occurred here since the

district court’s conscious avoidance instruction was a

proper response to the jury’s inquiry.

I. The Factual Predicate for the Charge

A conscious avoidance charge is appropriate when two

conditions have been met. See United States v. Mang Sun

Wong, No. 88-1100, slip op. at 7541 (2d Cir. June 1,

1989). First, the defendant must—as did the appellant

herein—contest some specific aspect of knowledge neces-

sary for conviction. Jd. (citing Lanza, 790 F.2d at 1022);

see also United States v. Beech-Nut Corp., 871 F.2d 1181,

1195-96 (2d Cir. 1989) (issues of knowledge properly

addressed by conscious avoidance charge).

Appellant’s challenge is directed at the second require-

ment: that there be an adequate factual predicate for the

charge. Our analysis of this question is guided by our deci-

sions in Mang Sun Wong and United States vy. Guzman,

754 F.2d 482 (2d Cir. 1985), cert. denied, 474 U.S. 1054

(1986). In Guzman, as here, the district court responded to

an inquiry from the jury by giving a supplemental charge

on conscious avoidance. Our holding in Guzman, recently

reaffirmed in Mang Sun Wong, was that such a charge was

proper where the ‘‘surrounding circumstances were such

that reasonable persons could have concluded that the cir-

cumstances aione should have apprised defendants of the

unlawful nature of their conduct.’’ Jd. at 489 (citing

United States v. Mohabir, 624 F.2d 1140, 1154 (2d Cir.

eT

10a

1980)); see Mang Sun Wong, slip op. at 7541-42. Noting

again that we may reverse herein only on a showing of

plain error, we must review the record to determine

whether the evidence before the district court was suffi-

cient to support a charge on conscious avoidance.

During cross-examination appellant conceded that,

though he was expected at work later in the afternoon on

the day of his arrest, he went directly to Bedoya’s house

without first asking Bedoya how long the delivery would

take. Once there, appellant asked no questions of any sub-

stance; instead, he merely took instructions and accepted a

beeper from Bedoya. According to Detective Pritchard’s

testimony, after appellant left Bedoya’s house and was

driving across Staten Island, he stopped several times—

looking around each time—apparently in an effort to

determine whether he was being followed. The planned

delivery itself was plainly not a straightforward one, but

was instead (on appellant’s own testimony) to involve a

beeper page, and then a transfer to an unknown man

named ‘‘Freddie.’’ Appellant testified that he was to give

the packages and the list of names to Freddie. In light of

this evidence, which tended reasonably to show that cir-

cumstances should have apprised appellant of the unlaw-

ful nature of his conduct, see United States v. Joyce, 542

F.2d 158, 161 (2d Cir. 1976), cert. denied, 429 U.S. 1100

(1977), there was no plain error in the district court’s deci-

sion to give the jury the supplemental charge on conscious

avoidance.

II. The Propriety of the Charge After Closing Arguments

Appellant’s second claim is that the court, by giving a

conscious avoidance charge after closing arguments had

been made, denied appellant an opportunity to address the

onan,

lla

jury on the substance of that charge. Appellant points out

that Rule 30 of the Federal Rules of Criminal Procedure

requires the court to inform counsel of its proposed

instructions before closing arguments, so that counsel will

have a fair opportunity to tailor arguments to those

instructions. See 2 C. Wright, Federal Practice and Proce-

dure § 482, at 685 (1982). Appellant contends that it was a

violation of Rule 30 for the district court to give its supple-

mental charge on conscious avoidance without affording

appellant an opportunity to argue the question to the jury.

Appellant notably does not challenge the substance of

the charge itself, cf. United States v. Christmann, 298

F.2d 651, 653-54 (2d Cir. 1962), but rather only the cir-

cumstances in which it arose. If a supplemental charge is

legally correct, the district court enjoys broad discretion in

determining how, and under what circumstances, that

charge will be given. See United States v. Bayer, 331 U.S.

532, 536 (1947); United States v. Burke, 700 F.2d 70, 80

(2d Cir.), cert. denied, 464 U.S. 816 (1983); United States

v. Castaneda, 555 F.2d 605, 611 (7th Cir.), cert. denied,

434 U.S. 847 (1977); United States v. Neville, 516 F.2d

1302, 1305 (8th Cir.), cert. denied, 423 U.S. 925 (1975).

That discretion is even broader in this case, for, as noted,

in the absence of a proper objection before the district

court we will reverse only if the supplemental charge gave

rise to plain error. See United States v. Kallash, 785 F.2d

26, 29 (2d Cir. 1986); Fed. R. Crim. P. 52(b). On the facts

herein, we hold that the district court’s decision to give the

supplemental charge after the summations were closed and

deliberations had begun was clearly not plain error.

We recognize that Rule 30’s requirement that counsel be

informed of the instructions to be given before closing

argument is an important safeguard of the right to a full

12a

and fair trial by jury. We also recognize that the district

court’s discretion regarding supplementary instructions is

not without limits, see United States v. Bolden, 514 F.2d

1301, 1308 (D.C. Cir. 1975), and that there are special

cases where the principles that underlie Rule 30 may very

well require that the district court allow further argument

after an instruction has been given, see United States v.

Blackmon, 839 F.2d 900, 910 (2d Cir. 1988); Loveless v.

United States, 260 F.2d 487, 488 (D.C. Cir. 1958) (per

curiam).

This, however, is not such a case. We simply ‘‘cannot

agree that ‘[t]he critical goal of good argument was viti-

ated by the. . . instruction.’ ’’ United States v. Viserto,

596 F.2d 531, 539 (2d Cir.), cert. denied, 444 U.S. 841

(1979). Both sides’ closing arguments drew upon the evi-

dence presented in the case in their respective efforts to

show that appellant did, or did not, know that he was car-

rying narcotics. In the wake of these arguments that

focused so narrowly on appellant’s knowledge, the ques-

tion of appellant’s conscious avoidance of knowledge con-

cerning the contents of the envelopes was a close logical

complement of the arguments and evidence already given.

Thus, in the context in which it arose, the supplemental

charge did not so grossly ‘‘deviate[ ] from the path of trial

that the parties had already pursued’’ as to cause a miscar-

riage of justice. See id. Having found no plain error in the

court’s decision to give the instruction, we conclude that

this claim on appeal also must fail.

CONCLUSION

We have considered all of appellant’s arguments and,

for the reasons set forth above, the judgment of the dis-

trict court is affirmed.