Opposition Brief — Harris v. United States

SUPIGHIS Ves, “se

a FILED

A, FEB 28 1990

| No. 89-1043

PANIOL, JR,

a

In the Supreme Court of the Unites Stites

OCTOBER TERM, 1989

WILLIAM W. HARRIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether petitioner was entitled to a jury in-

struction on multiple conspiracies.

2. Whether an overt act is an essential element of

a drug conspiracy punishable under 21 U.S.C. 846.

(1)

TABLE OF CONTENTS

Page

os oy a nissiiusoscuadnanovnnstovavs eee 1

a ER ae Sea Ss eet ER rt 1

Statement... Ce MT AE es HE EN ARE REN Poet 2

as aca sags noid ccanvauis spniumddenaceccsdnvanepeios 6

i here Soa ah pacanpepiinneetsuasipoaase 11

TABLE OF AUTHORITIES

Cases:

Ewing Vv. United States, 386 F.2d 10 (9th Cir.

1967), cert. denied, 390 U.S. 991 (1968)... 10

Hogan V. O'Neill, 255 U.S. 52 (1921)... of)

Hopkins v. United States, 405 F.2d 770 (9th Cir.

eee, SUS SEAN se RP nn Rl OU kar CE RE 10

Leyvas V. United States, 371 F.2d 714 (9th Cir.

ya een Pa 10

Nash vy. United States, 229 US. 373° (1913) elt 9

Singer Vv. United States, 323 U.S. 338 (1945)... 9

United States v. Bey, 736 F.2d 891 (3d Cir. 1984) 8,9

United States v. Burrenson, 643 F.2d 13844 (9th

Cir.), cert. denied, 454 U.S. 830 (1981) ............ 7

United States v. Covos, 872 F.2d 805 (8th Cir.),

cert. denied, 110 S.Ct. 124 (1989) ....................... 5, 10

United States v. DeJesus, 520 F.2d 298 (1st Cir.),

cert. denied, 423 U.S. 865 (1975) ......................... 9

United States v. Dempsey, 733 F.2d 392 (6th Cir.),

cert. denied, 469 U.S. 983 (1984) ......... ..........8, 9, 10

United States v. Knuckles, 581 F.2d 305 (2d Cir.),

cert. denied, 439 U.S. 986 (1978) .........--.. 8

United States v. Linn, 862 F.2d 735 (9th Cir.

1988) Ae PORT Sil TR Mca ek i LC ee §

United States v. Martino, 664 F.2d 860 (2d Cir.

1981), cert. denied, 458 U.S. 1110 (1982)... 5

United States v. Melchor-Lopez, 627 F.2d 886

iE ck ine Rat ee Rs 9

United States v. Murray, 492 F.2d 178 (9th Cir.

1973), cert. denied, 419 U.S. 854 (1974) _........ 10

(IIT)

IV

Cases—Continued : Page

United States v. Pumphrey, 831 F.2d 307 (D.C.

| Renae mele MELO RL ae or ae 8

United States v. Rodriguez, 612 F.2d 906 (5th Cir.

1980), aff’d, 450 U.S. 333 (1981) —_.........00.. 8, 10

United States v. Russell, 703 F.2d 1243 (11th Cir.

SRA ste By ee EN en ra, 8

United States v. Savaiono, 843 F.2d 1280 (10th

Cir.), cert. denied, 109 S. Ct. 99 (1988) ........... 8, 10

United States v. Tavelman, 650 F.2d 1133 (9th

Cir.), cert. denied, 455 U.S. 939 (1982) ......... 9,10

United States v. Umentum, 547 F.2d 987 (7th Cir.

1976), cert. denied, 430 U.S. 983 (1977) ............ 8-9

United States v. Wilkinson, 754 F.2d 1427 (2d

Cir.), cert. denied, 472 U.S. 1019 (1985) 6

Statutes :

Travel Act, 18 U.S.C. 1952 .................... Risser aes Mn ER 10

18 U.S.C. 371 meena fers TO OS. SB SS ee ak de 9

Bik foe arene UGlche asta 2, 4, 5, 8, 9, 10

21 U.S.C. 843(b) . es Sac eos s cdica eased Ia Cohan Ae 2

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1043

WILLIAM W. HARRIS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-

18a) is reported at 882 F.2d 1334.

JURISDICTION

The judgment of the court of appeals was orig-

inally entered on August 22, 1989, but it was va-

cated and reentered on October 24, 1989 (Pet. App.

19a-20a). The petition for a writ of certiorari was

filed on December 23, 1989. The jurisdiction of this

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

(1)

2

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Western District of Missouri, pe-

titioner was convicted on one count of conspiracy to

distribute cocaine and to possess cocaine with intent

to distribute it, in violation of 21 U.S.C. 846, and

five counts of using a telephone to facilitate the con-

spiracy, in violation of 21 U.S.C. 843(b). He was

sentenced to 20 years’ imprisonment. Pet. App. 21a-

24a.

1. The evidence at trial, which is summarized in

the opinion of the court of appeals, showed that peti-

tioner, co-defendant Michael Davis, Rolando Soriano,

and other individuals conspired with one another to

distribute cocaine. The conspiracy began in Novem-

ber 1985 when Davis and Soriano, a Los Angeles

drug dealer, met and agreed to work together to im-

port cocaine into Kansas City, Missouri. Soriano

supplied cocaine from Colombian drug sources to

Davis, who distributed the cocaine to individuals in

the Kansas City area. Petitioner served as a ‘‘mule’”’

or courier of cash and cocaine for Davis. Pet. App.

2a.

In December 1985, Davis met with Soriano and a

drug source named Oswaldo Avilas in Miami, and

purchased one kilogram of cocaine for $32,000 in

cash. Later that month, Davis sent petitioner to

Miami to negotiate a purchase of ten kilograms of

cocaine, but Soriano was unwilling to entrust the

cocaine to petitioner. Accordingly, Soriano and his

“mule,” Mareos Rodriguez, drove the cocaine from

Miami to Kansas City and delivered it to Davis.

Davis was to pay Soriano $350,000 for this cocaine.

Pet. App. 2a; Gov’t C.A. Br. 14-15.

3

In February 1986, Soriano arranged another deal

between Davis and Avilas for five kilograms of co-

caine. Davis’s brother was sent to New York to pick

up the cocaine and bring it back to Kansas City.

Shortly thereafter, the brother drove to Miami with

eash intended for Soriano and his sources. Before he

could deliver the money, however, Davis’s brother

was arrested for speeding. The cash impounded

from the car, although returned to Davis, was less

than the amount believed to have been sent, and

there thus arose a shortfall with respect to the trans-

action. Later that month, Soriano returned to Kan-

sas City to collect money from Davis. Pet. App. 3a;

Gov’t C.A. Br. 15.

Davis received another delivery of five kilograms

of cocaine from Soriano in March 1986. Early in

April 1986, Soriano went to Kansas City, where he

met with Davis and petitioner and tried to collect

money for the cocaine. Later in April 1986, Davis

purchased another six kilograms of cocaine from

Soriano. Petitioner met Soriano in Los Angeles to

take delivery of the cocaine, and he then transported

it back to Kansas City by car. Pet. App. 3a; Gov't

C.A. Br. 16.

Davis continued to owe money to Soriano for co-

caine that had been delivered. Consequently, during

May, another one of Davis’s “mules,” Marlene Fue,

made three trips to Miami to transport more than

$100,000 in cash to Soriano. Petitioner accompanied

Fue on her first trip, and, on another occasion, he

provided Fue with money to be delivered to Soriano.

Pet. App. 3a; Gov’t C.A. Br. 17, 30.

In late May 1986, Soriano came to Kansas City

to try to collect more money from Davis for the co-

4

caine deliveries. By that time, Soriano had become

disenchanted with Davis because of his repeated fail-

ures to make full payment for his cocaine purchases.

During a meeting at which Soriano, Davis, and peti-

tioner were present, Davis excused his failure to pay

Soriano on the grounds that petitioner and others had

failed to pay him. Petitioner and Davis disagreed

sharply over the amount of money petitioner owed

Davis. Displeased with Davis’s repeated failures to

pay, Soriano told Davis to give petitioner the re-

maining cocaine to sell. Petitioner attempted to ar-

range another cocaine purchase in June 1986, but

Soriano was arrested before the deal was completed.

Pet. App. 3a: Gov’t C.A. Br. 17, 39.

2. The superseding indictment charged that peti-

tioner, Davis, Soriano, and others conspired to dis-

tribute cocaine and to possess cocaine with intent to

distribute it from November 1985 until June 16,

1986. At trial, petitioner requested an instruction

on the distinction between single and multiple con-

spiracies. He argued that the evidence showed one

conspiracy between Soriano and Davis beginning in

December 1985 and ending some time between March

and May 1986 and another separate conspiracy be-

tween himself and Soriano beginning in late April or

May 1986 and ending in June 1986. The district

court denied the request for a multiple conspiracy

instruction.

Petitioner also requested a jury instruction that

the performance of an overt act in furtherance of a

drug conspiracy is an element of a violation of 21

U.S.C. 846. The district court also refused to de-

liver that requested instruction.

3. The court of appeals affirmed. Pet. App. la-

18a. It rejected petiticne:’s contention that he was

5

entitled to a multiple conspiracy instruction, explain-

ing that “when ‘the evidence substantially points to

a single conspiracy, or [when] the evidence is not

sufficient to permit a fair inference of multiple con-

spiracies, no instruction on multiple conspiracies

should be given.’”’ Jd. at lla. In this case, the court

found, “the evidence at trial showed one overail

agreement among Soriano, Davis and [petitioner] to

import cocaine into Kansas City for distribution.”

Id. at 12a. The court acknowledged that the evi-

dence showed that, “as Davis repeatedly failed to

pay Soriano, relations between Soriano and Davis

cooled, and Soriano dealt more directly with [peti-

tioner].”” The court emphasized, however, that the

“changes in the coconspirators’ roles in this case,

rather than suggesting the existence of a new con-

spiracy, clearly showed only ‘the various phases of

one basic and overriding plan.’” Jd. at 12a-13a.

The court concluded that “the evidence overwhelm-

ingly established the existence of a single conspir-

acy.” Id. at 13a.

The court also rejected petitioner’s contention that

the district court erred in failing to instruct the

jury that an overt act is an essential element of a

violation of 21 U.S.C. 846. The court adhered to its

decision in United States vy. Covos, 872 F.2d 805

(8th Cir.), cert. denied, 110 S. Ct. 124 (1989); in

that case, the court had concluded “that the more

persuasive reasoning, as well as the ‘overwhelming

weight of authority in other circuits,’ is that section

846 does not require proof of an overt act.” Pet. App.

13a.

6

ARGUMENT

1. Petitioner contends (Pet. 6-9) that the court of

appeals applied an incorrect standard when it as-

sessed whether the evidence was sufficient to justify

a jury instruction on multiple conspiracies.

An instruction on multiple conspiracies is required

‘when the indictment charges several defendants with

one overall conspiracy but the jury could reasonably

conclude from the evidence at trial that some of the

defendants were involved only in a separate con-

spiracy unrelated to the single conspiracy charged in

the indictment. As the court of appeals observed,

such an instruction need not be given “when ‘the evi-

dence substantially points to a single conspiracy, or

[when] the evidence is not sufficient to permit a

fair inference of multiple conspiracies.’”’ Pet. App.

lla. The court of appeals held that the district court

had properly declined to instruct on the issue of

multiple conspiracies in this case because “Tthhe evi-

dence overwhelmingly established the existence of a

single conspiracy.” Id. at 13a.

Contrary to petitioner’s contention (Pet. 5-6, 8-9),

these standards are not materially different from

those applied in other circuits. When a court deter-

mines that evidence “overwhelmingly establishe[s]”

a single conspiracy, it has effectively found that a

reasonable jury could not have concluded otherwise.

Thus, the denial of petitioner’s request for a multiple

conspiracies instruction was entirely consistent with

standards applied in other circuits. See, ¢.g., United

States v. Linn, 862 F.2d 735, 743-744 (9th Cir.

1988): United States v. Wilkinson, 754 F.2d 1427,

1434 (2d Cir.), cert. denied, 472 U.S. 1019 (1985);

United States v. Martino, 665 F.2d 860, 875-877 (2d

Cir. 1981), cert. denied, 458 U.S. 1110 (1982):

7

United States v. Burrenson, 643 F.2d 1344, 1348

(9th Cir.), cert. denied, 454 U.S. 830, 847 (1981).

Petitioner’s suggestion (see Pet. 3-4, 8) that the

court of appeals overlooked evidence supporting the

existence of multiple conspiracies presents no ques-

tion warranting this Court’s review. The evidence

established that petitioner was an active participant,

along with Soriano and Davis, in drug transactions

that occurred before the point when, according to

petitioner, his conspiratorial relationship with Sori-

ano began. Soriano testified that, in December 1985,

Davis sent petitioner to Miami to negotiate with

Soriano and another individual concerning the pur-

chase of ten kilograms of cocaine. Pet. App. 2a. In

April 1986, Soriano met with both petitioner and

Davis in an effort to collect money for cocaine de-

livered in March 1986. Id. at 3a; Gov’t C.A. Br. 16.

Also in April, Davis sent petitioner to Los Angeles

to pick up six kilograms of cocaine from Soriano.

Pet. App. 3a. Thereafter, Fue delivered money from

petitioner or Davis to Soriano or his sources: on one

occasion, in a trip paid for by Davis, Fue was accom-

panied by petitioner. /bid.; Gov’t C.A. Br. 17, 30.

In May, Soriano, Davis, and petitioner met and

argued over who, as between Davis and petitioner,

was responsible for shortfalls in payments to Soriano

for drug :hipments up to that point. During that

meeting, when Soriano told Davis to give petitioner

cocaine remaining from a prior shipment so that it

could be sold, petitioner stated that “he had been

selling all the drugs for Mr. Davis anyway and that

he would go ahead and take it and get rid of it and

make sure Mr. Soriano got his money.” Gov’t -C.A.

Br. 30. In view of this evidence, the court of appeals

was correct in its conclusion that the evidence over-

8

whelmingly established a single conspiracy. As the

court-explained, the fact that Soriano came to deal

more directly with petitioner as he became disen-

chanted with Davis “hardly |meant] that the scheme

that had started in November 1985 ended and a new

conspiracy began.” Pet. App. 12a. That evidence

did not indicate that “the objective of the scheme as

originally agreed to [was] completed, abandoned,

renounced, or otherwise terminated”: rather, as the

court explained, petitioner and Soriano “simply con-

tinued. albeit in closer association, their longstand-

ing efforts to bring cocaine to Kansas City.” /bid.

2. Petitioner also contends (Pet. 9-10) that there

is a conflict among the circuits on the question

whether the commission of an overt act is an element

of a drug conspiracy punishable under 21 U.S.C.

846. !

Notwithstanding conflicting statements in some

early decisions, virtually all courts of appeals have

nov coneluded that a conspiracy under the Con-

trolled Substances Act does not require either an alle-

gation or proof of an overt act. United States v.

Savaiano. 843 F.2d 1280. 1293-1294 (10th Cir.),

eert. denied 109 S. Ct. 99 (1988): United States v.

Pumvhvey, 831 F.2d 307. 308-309 (D.C. Cir. 1987) ;

United States v. Bey, 736 F.2d 891, 893-895 (3d Cir.

1984): United States .. Dempsey, 733 F.2d 392,

394-396 (6th Cir.), cert. denied, 469 U.S. 983

(1984): United States v. Russell, 703 F.2d 1243,

1250 (ilth Cir. 1982): United States v. Rodriguez,

612 F.2d 906, 919-920 n.37 (5th Cir. 1980) (en

banc), afi’d, 450 U.S. 333 (1981); United States v.

Knuckles, 581 F.2d 305, 311 (2d Cir.), cert. denied,

439 U.S. 986 (1978): United States v. Umentum,

547 F.2d 987, 989-991 (7th Cir. 1976), cert. denied,

9

430 U.S. 983 (1977); United States v. DeJesus, 520

F.2d 298, 301 (1st Cir.), cert. denied, 423 U.S. 865

(1975).

The plain language of Section 846 compels that

conclusion. Unlike the general federal conspiracy

statute, 18 U.S.C. 371, Section 846 does not require

the commission of an overt act as an element of the

offense. Rather, it is unlawful to “conspire[] to

commit any offense” defined elsewhere in the Act.

Congress has thus chosen to model] the drug statute

after the common law, which did not require proof

of an overt act for a conviction for conspiracy. See,

e.g., United States vy. Bey, 736 F.2d at 894-895 &

n.5; United States vy. Dempsey, 733 F.2d at 395.*

Although there are statements in decisions by the

Ninth Circuit suggesting that the performance of an

overt act is an element of a violation of Section 846,

United States v. Melchor-Lopez, 627 F.2d 886

(1980); United States v. Tavelman, 650 F.2d 1133,

cert. denied, 455 U.S. 939 (1982), there is no con-

flict among the courts of appeals calling for this

Court’s review. Those statements were plainly dicta.

In Melchor-Lopez, the issue was whether the gov-

ernment had introduced sufficient evidence to prove

that a defendant had entered an unlawful agreement

with the alleged co-conspirators, and the court thus

had no occasion to consider whether his conviction

could have been upheld in the absence of proof of

* Petitioner is mistaken in his assertion (Pet. 9-10) that

“the very meaning of the word conspiracy under federal com-

mon law implies the requirement of an overt act.” Under

the common law, it was established that the performance of

an overt act was not an element of the offense of conspiracy.

Singer Vv. United States, 323 U.S. 338, 340 (1945): Hogan v.

O’Neill, 255 U.S. 52, 55 (1921): Nash v. United States, 229

U.S. 373, 378 (1913).

Ee

10

an overt act. Similarly, in Tavelman, the issue was

whether a defendant could receive separate sentences

for participating in a drug conspiracy and for vio-

lating the Travel Act, 18 U.S.C. 1952. Applying the

Blockburger test, the court concluded that separate

sentences could be imposed because ‘“‘[t]he interstate

element of section 1952 is not required under section

846 and the agreement element of section 846 is not

required under section 1952.” 650 F.2d at 1140. It

was thus immaterial whether or not an overt act

was an element of a conspiracy punishable under

Section 846.

The Ninth Circuit is likely to join other courts of

appeals in holding that an overt act is not required

for a conviction under Section 846 if it is called upon

to resolve that question. The Ninth Circuit consis-

tently held that Section 846’s predecessor did not re-

quire an allegation or proof of an overt act. See

United States v. Murray, 492 F.2d 178, 192 (1973),

cert. denied, 419 U.S. 854 (1974): Hopkins vy.

United States, 405 F.2d 770, 772 n.2 (1969): Ewing

v. United States, 386 F.2d 10, 15 (1967), cert. de-

nied, 390 U.S. 991 (1968) ; Leyvas vy. United States,

371 F.2d 714, 717 & n.4 (1967). Moreover, early

decisions in a number of other circuits contained

suggestions that an overt act was a prerequisite for

a conviction under Section 846. All of those courts,

however, ultimately resolved the uncertainty in their

decisions against the position that petitioner advo-

cates. See, e.g., United States v. Covos, 872 F.2d at

809-810; United States v. Rodriguez, 612 F.2d at

919 n.37; United States v. Dempsey, 733 F.2d at

395-396; United States v. Savaiano, 843 F.2d at

1293-1294. Absent any indication that the Ninth

Circuit would adhere to dicta in its cases in the face

of the present consensus that an overt act is not an

11

element of a violation of Section 846, that question

does not warrant this Court’s attention.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

FEBRUARY 1990

WW WU. &. GOVERNMENT PRINTING OFFice; 1990 262203 782

A