Opposition Brief — Acosta v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1368

Victor ACOSTA, JOSEPH BEDAMI, JR., AND

ANTHONY CRAPERO, PETITIONERS

¥.

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. A-I to

A-6) is reported at 526 F.2d 670. The opinion of the district

court (Pet. App. A-7 to A-15) is reported at 386 F. Supp.

1072.

JURISDICTION

The judgment of the court of appeals was entered

on January 29, 1976. A petition for rehearing was denied

on February 23, 1976. The petition for a writ of certiorari,

filed on March 25, 1976, is therefore out of time under

Rule 22(2) of the Rules of this Court. The jurisdiction of this

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

QUESTIONS PRESENTED

|. Whether the court of appeals erred in reinstating

a guilty verdict that had been overturned by the district

court on the ground of prosecutorial misconduct.

(1)

an EGE RN AEGIS ISL I CTI ON MERRIE ORE ORR AE ee P

2. Whether this Court should review an issue not reached

by the court of appeals, and not necessary to the resolution

of this case, involving the power of a district court in

criminal cases to overturn a jury verdict of guilty on grounds

other than jurisdiction or sufficiency of the evidence.

STATEMENT

After a jury trial in the United States District Court

for the Southern District of Florida, petitioners were

convicted of conspiracy to import controlled substances

unlawfully, in violation of 21 U.S.C. 952. Following the

jury verdict, the district court dismissed the indictment on

the ground of prosecutorial misconduct (Pet. App. A-7 to

A-15). The court of appeals reversed (Pet. App. A-1 to A-6).

1. The evidence showed that co-defendant Louis

Llerandi, Rudolph Limauro (a government informant), and

petitioner Acosta met several times in early 1973 to plan

the importation of narcotics from Colombia (Tr. 204-205). !

Llerandi and Acosta instructed Limauro to secure the

services of a pilot to fly the narcotics into the United States.

Accordingly, Limauro introduced them to an undercover

government agent, who thereafter flew to Colombia

but failed to meet petitioners’ representative, as planned

(Tr. 255-257, 794-798).

Subsequently, all three petitioners met with Limauro

and Lauro Parente, a Brazilian commercial pilot, who

agreed to make the flight (Tr. 278, 282-288, 905-909). Peti-

tioner Acosta then met with James Gore, a parolee and

licensed pilot, who also was a government informant;

Acosta told Gore that he had obtained the services of a

Brazilian pilot who had access to an airplane sufficiently

Tr.” refers to the three-volume transcript of trial which has been

lodged with the Clerk of this Court. Co-defendant Llerandi is pre-

sently a fugitive.

3

large for the journey and cargo; that on reentry into the

United States there would be no further use of the Brazil-

ian pilot; and that at that point Gore should take command

of the aircraft and throw the Brazilian pilot out of the

plane (Tr. 1022). Acosta gave Gore $5,000 to use as down

payment for the aircraft (Tr. 1030). The contraband was

never brought into the United States before the con-

spiracy terminated.

2. During trial, the defense several times moved to

dismiss the case on the basis of specific instances of alleged

prosecutorial misconduct. The court reserved ruling on

the motions until the jury returned guilty verdicts against

petitioners, whereupon the court dismissed the indict-

ment because of the misconduct (Pet. App. A-7). Specifi-

cally, the court faulted the prosecution for eliciting from

Limauro testimony that he had been convicted of only

seven felonies whereas, on cross-examination, it was

shown that he had been convicted of more than twenty

felonies (Pet. App. A-9); failing to correct Limauro’s

statements, later shown by defense counsel to be false,

that Limauro was unaware of certain state charges then

pending against him (Pet. App. A-10), that the govern-

ment had made no promises to him in exchange for

his testimony (Pet. App. A-11), and that he had not been

paid by the government in advance for his services as an

informant (Pet. App. A-12); failing to inform the court

and the defense of certain payments, shown by the de-

fense to have been made to Limauro by the government

after the alleged conspiracy had terminated (ibid.); and

failing to furnish in a timely fashion vouchers to support

other payments, shown by the defense to have been made

to Parente by the government (Pet. App. A-14). The court

also criticized government agents for falsely represent-

ing to Gore’s parole officer that formal clearance had been

obtained from the State to use Gore as an informant

while he was on parole (Pet. App. A-14).

4

On appeal, the court of appeals reversed the dismissal

of the indictment and remanded with instructions to

reinstate the verdict, reasoning that the misconduct,

while censurable, had not in fact prejudiced the outcome

of the case and that therefore “due process does not

require that [defendants] be given the ‘reward’ of having

the jury verdict set aside and the indictment dismissed”

(Pet. App. A-6).

ARGUMENT

1. The court of appeals correctly concluded that the

district court had erred in dismissing the indictment

after the jury verdict of guilty. Notwithstanding the

alleged prosecutorial misconduct, the jury was fully

apprised of all the above-mentioned factors that tended

to cast doubt on the credibility of government witnesses.

Indeed, the government’s initial failure fully to disclose

these factors, and their subsequent elicitation by the de-

fense, was likely further to have damaged these wit-

nesses’ credibility. The jury nevertheless decided that

petitioners were guilty as charged. As the court of appeals

observed, “the tactics in issue had no prejudicial influence

on the outcome of the case. If anything, those tactics,

fully exposed to the jury, should have redounded to the

benefit of the defense” (Pet. App. A-6). Since the alleged

government misconduct could not have resulted in mis-

leading the jury to petitioners’ detriment, they were

not in fact deprived of a fair trial, and the Due Process

Clause does not require that they go unpunished for their

crimes.

Petitioners nevertheless rely upon United States v.

Russell, 411 U.S. 423, and McNabb v. United States. 318

U.S. 332, apparently for the proposition that if misconduct

is sufficiently outrageous, due process principles should

bar the government from invoking judicial process to ob-

tain convictions. Neither case is apposite. In McNabb, of

inn tt i io ei, see ae

5

course, the Court did not bar any prosecution, but rather

held that a confession obtained during a period of unlaw-

ful detention should not be admitted in evidence.

Russell was an entrapment case? in which the Court

observed in dictum that there might be circumstances

in which police conduct producing a criminal act by a

defendant might be so outrageous as to bar trial for that

act. In the present case, petitioners’ crime was not

prompted by government misconduct. Thus, neither

McNabb nor Russell is pertinent to a case of alleged mis-

conduct at trial found not to have prejudiced the defend-

ants. In short, petitioners cite no appellate authority that

requires dismissal of an indictment under these circum-

stances, and we know of none.3

Finally, while we do not seek to justify the alleged mis-

conduct, the district court has, as the court of appeals noted,

ample power to deter prosecutorial misconduct without

rewarding the defendant and penalizing the public by

allowing guilty defendants to go free (Pet. App. A-6).

Cf. Hampton v. United States, No. 74-5822, decided April

27, 1976, plurality slip op. 6.

2. Petitioners also ask this Court to decide whether a

district court has power to dismiss an indictment after

a jury verdict on grounds other than sufficiency of the

“There is no suggestion that any alleged government misconduct

entrapped petitioners (Pet. App. A-S5).

‘United States v. Banks, 513 F.2d 1329 (C.A. 8), upon which peti-

tioners also rely, is inapposite. In Banks a district court dismissed a

prosecution before a jury verdict because of asserted prosecutorial

misconduct. The court of appeals did not examine the substance of

the government's appeal because it ruled that the order of dismissal

was not appealable by the government in light of United States v.

Jenkins, 420 U.S. 358. In petitioners’ case. of course. the government's

appeal was not barred by the Double Jeopardy Clause, because it re-

sulted only in a reinstatement of the jury verdict and not in a new

trial. See United States v. Wilson, 420 U.S. 332.

6

evidence or lack of jurisdiction. The government raised

this question in the court of appeals, but the court declined

to reach it because its disposition of the case made it un-

necessary to do so (Pet. App. A-6). Neither the court of

appeals in the instant case nor any other court has ex-

pressly passed on this question, and there is no reason why

this Court should initially undertake to decide it in a case

in which the resolution of the question does not affect

the correct disposition of the case.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. FEIT,

MERVYN HAMBURG,

Attorneys.

May 1976.

DOJ-1976-05

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