Opposition Brief — Cosby v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1378

WILLIAM CosBy, 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. A-1 to

A-11) is reported at 529 F.2d 143.

JURISDICTION

The judgment of the court of appeals was entered on

February 9, 1976. A petition for rehearing en banc was

considered as a petition for rehearing and denied on

February 27, 1976 (Pet. App. A-13). The petition for a writ

of certiorari was filed on March 26, 1976. The jurisdiction

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

. QUESTION PRESENTED

Whether the district court committed prejudicial

error by refusing to ask prospective jurors four proposed

questions.

SPRL

waTeh: Ras

SOS ee et Viger 8

2

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Missouri, petitioner was

convicted on two counts of distributing heroin, in violation

of 21 U.S.C. 841(a)(1). He was sentenced to concurrent

terms of 12 years’ imprisonment, to be followed by three

years’ special parole. The court of appeals affirmed.

The evidence (see Pet. App. A-4) showed that in the

winter of 1975, while petitioner was selling heroin in

St. Louis, Benny Green, a St. Louis Police Department

detective, twice arranged to purchase heroin from peti-

tioner through Phelbert Angle.' Angle, unaware that

Green was a law enforcement officer, paid for the heroin

on both occasions with money furnished by Green and

turned the drug over to Green.

The trial judge conducted the voir dire of the jury panel.

The court first read the pertinent counts of the indictment

to the jury panel and instructed the panel that the indict-

ment was not evidence of guilt (Tr. 5). The judge in-

structed the panel that the burden of proof was on the

government to establish guilt beyond a reasonable doubt

(Tr. 5) and inquired whether any of the veniremen would

give special weight to the testimony of police officers

(Tr. 22).

Defense counsel submitted seven questions to the

court. Petitioner now contends that it was error not to

ask four of the submitted questions,? each of which related

‘Angle and Danny Mayer, another customer of petitioner's who

was involved in the second purchase of heroin, each pleaded guilty

to one count of the indictment.

>The four questions are (Tr. 25-26):

1. Is there anyone on the panel who argues with the proposi-

tion that the Government must prove the defendant guilty

beyond a reasonable doubt?

3

to the burden of proof or the presumption of innocence.

The court declined to ask the questions. It promised, how-

ever, to instruct the jury concerning these matters and

Stated that it assumed the jury would follow the instruc-

tions (Tr. 25). The court then inquired whether anyone

could not give the defendant a fair trial (Tr. 26); whether

each juror would follow the trial court’s instructions “as

to what the law is as to the presumption of innocence,

the burden of proof or any other instruction | give you

in this cause” (Tr. 27); and whether there was any reason

why a member of the panel would not give both sides

“an absolutely fair and impartial hearing if they’re chosen

to serve” (Tr. 28).

After the jury was selected and sworn, and before open-

ing statements were made, the court instructed the

jurors that the law applicable to the case would be con-

tained in the instructions given by the court during the

course of the trial and that it was the jurors’ “duty to follow

all such instructions” (Tr. 30). During the court's final

instructions to the jury (Pet. App. A-10),

[the jury] was fully, fairly and correctly instructed

about presumption of innocence, burden of proof, and

reasonable doubt, and the court specifically told the

jury that the law never imposes upon a defendant in

2. Is there anyone on the panel who argues with the proposi-

tion that the Government has the burden of proof?

3. Is there anyone on the panel who argues with the prop-

osition that the defendant is presumed innocent unless and until

the Government meets its burden of proving guilt beyond a

reasonable doubt, if the Government ever does?

4. Is there anyone on the panel who does not look at the de-

fendant and presume him to be innocent as he sits before you?

ORALETE ONS OC pRCR vine sume gene.- 4

ga Py oe

4

a criminal case the burden of calling or duty to call

witnesses or produce witnesses in his behalf. [See

Supp. Tr. 1-3, 8.]

ARGUMENT ;

The court of appeals correctly concluded (Pet. App.

A-11) that the trial court had not abused its discretion by

declining to ask prospective jurors the questions proposed

by petitioner. District courts have broad discretion to de-

termine the questions on voir dire. Fed. R. Crim. P. 24(a);

Ristaino v. Ross, No. 74-1216, decided March 3, 1976, slip

op. 6; Hamling v. United States, 418 U.S. 87, 139: Ham v.

South Carolina, 409 U.S. 524, 528. As the court below stated

(Pet. App. A-11):

[T]he district court did not abuse its discretion when

it refused to ask the members of the panel whether

they “argued” with the legal principles that have

been mentioned. The jurors were obligated by their

oath to accept the law as given them by the court

and to return a verdict in accordance with the law

and the evidence, and the presumption is that the

jurors did their duty.

The district court fully instructed the jury at the close

of the evidence concerning the presumption of inno-

cence, burden of proof, and reasonable doubt. Moreover.

each of the jurors had been asked when they were im-

panelled whether they could abide by such instructions,

and none said that he could not. The combination of

questions on voir dire and instructions to the jury mini-

mized any possibility of prejudice to petitioner. The courts

of appeals routinely uphold procedures similar to those

used here. United States v. Wooten, 518 F.2d 943, 945-

947 (C.A. 3), certiorari denied, 423 U.S. 895: United

States v. Cockerham, 476 F.2d 542, 544(C.A.D.C.): United

States v. Crawford, 444 F.2d 1404, 1405(C.A. 10), certiorari

en ae EMT RAPE NE NMR I EH

5

denied, 404 U.S. 855; United States v. Gillette, 383 F.2d

843, 849 (C.A. 2); Stone v. United States, 324 F.2d 804,

805-807 (C.A. 5), certiorari denied, 376 U.S. 938: Gorin v.

United States, 313 F.2d 641, 647 (C.A. 1), certiorari denied,

379 U.S. 971.3

CONCLUSION

It is respectfully submitted that the petition for a

writ of certiorari should be denied.

Ropert H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

JEROME M. Fert,

FREDERICK EISENBUD,

Altorneys.

JUNE 1976.

‘The contrary view expressed by the majority of the panel in

United States \. Blount, 479 F.2d 650, 651 (C.A. 6), on which petitioner

relies (Pet. 7). was explicitly rejected by the Third Circuit in United

States vy. Wooten, supra, 518 F.2d at 947, n. 7, a case in which the

Court denied certiorari earlier this Term. Wooten correctly held that

Blount failed to consider important policies, such as the need for

reasonable expedition on voir dire. Since the decision below accords

with the clear consensus among the circuits that have considered

the necessity of asking prospective jurors questions such as those at

issue here (a consensus, we submit, that represents a proper balanc-

ing of the conflicting interests involved in such circumstances), there

is no reason for this Court to grant the petition. In light of the discre-

tion traditionally accorded district courts on voir dire, this is not the

sort of question requiring consistency among the circuits, in the

absence of any reason to believe that the Sixth Circuit's rule is a sub-

stantial impediment to the administration of justice.

DOJ-1976-05

alaaiee el PFO ee eee,