Opposition Brief — Ortiz-Cameron v. United States

No. 93-850

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In the Supreme Court of the United Stites’ “ “> |

OcTOBER TERM, 19983

LuIs HIRAM ORTIZ-CAMERON. PETITIONER

wv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III

Solicitor 7 he ral

JOANN HARRIS

Assistant Attorne Y (re dre ral

JOEL M. GERSHOWITZ

Attorneys

Di partie net of Justice

Washington, D.C. 20530

(202) 514 DI17

QUESTIONS PRESENTED

1. Whether the district court conducted a sufficient

inquiry into alleged juror misconduct.

2. Whether the district court, in questioning jurors

about the alleged juror misconduct, misled jurors con-

cerning the burden of proof in a criminal trial.

3. Whether a government witness’s in-court identifi-

cation of petitioner was tainted by pretrial exposure to

an impermissibly suggestive identification procedure.

(1)

TABLE OF CONTENTS

Page

Opinion DElOW ........ccccceeeeeeeseeeeeeeeeeeeeeneneeeeseseeseseeneeneeseeseesenens ]

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III << cisdandnsenetehdaiesnnatbaehebnbunenactanonenpecsanesnne 13

TABLE OF AUTHORITIES

Cases:

Dooley v. Duckworth, 832 F.2d 445 (7th Cir. 1987), cert.

Gonmted, 466 UB. GET CIGGB) ccccscccccecescsscsecccsscscsccssseccccsees ll

Judd v. Vose, 813 F.2d 494 (1st Cir. 1987) ................0006: 13

Manson v. Brathwaite, 432 U.S. 98 (1977) .............eeee 4,11

McFadden v. Cabana, 851 F.2d 784 (5th Cir. 1988), cert.

denied, 489 U.S. 1083 (1989) ...............:cccccecreeeeeeceseeeecens 11

Neil v. Biggers, 409 U.S. 188 (1972) .........cccceeeeseeeeeeeeeeees 11

Remmer v. United States, 347 U.S. 227 (1954) .............. 7

Richardson v. Marsh, 481 U.S. 200 (1987) ................000 10

Smith v. Phillips, 455 U.S. 209 (1982) ..........cccceeeseeeeeees 8

United States v. Bagley, 772 F.2d 482 (9th Cir. 1985),

cert. denied, 475 U.S. 1023 (1986) .............cceecseeeeeeeeeeees 11-12

United States v. Bouthot, 878 F.2d 1506 (1st Cir. 1989). 13

United States v. Boylan, 898 F.2d 230 (ist Cir.), cert.

denied, 498 U.S. 849 (1990) .............cccrcccccccccrcccscccseseeseres 6

United States v. Chiantese, 582 F.2d 974 (5th Cir. 1978),

cert. denied, 441 U.S. 922 (1979) .................ccccccccsesesoes 6

United States v. Klee, 494 F.2d 394 (9th Cir.), cert.

denied, 419 U.S. 835 (1974) .............cccccccccccccsccscrsceeecoees 7-8

United States v. Resko, 3 F.3d 684 (3d Cir. 1993) ......... 6, 8, 9

United States v. Richman, 600 F.2d 286 (1st Cir. 1979). 9, 10

Wisniewski v. United States, 353 U.S. 901 (1957) .......... 10

Statutes:

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Statutes—Continued: Page

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BEE Ghd SUNS nchiwnilatsnjscecadvacseniupaiatetatascubassbonnniatiaeiens 2

In the Supreme Court of the Gnuted States

OCTOBER TERM, 1993

No. 93-850

Luis HIRAM ORTIZ-CAMERON, PETITIONER

vs

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

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

A60) is reported at 996 F.2d 436.

JURISDICTION

The judgment of the court of appeals was entered on

June 11, 1993. The petition for rehearing was denied

on August 27, 1993. Pet. App. A61-A62. The petition

for a writ of certiorari was filed on November 26, 1993

(the day after a federal holiday). The jurisdiction of

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

(1)

STATEMENT

Following a jury trial in the United States District

Court for the District of Puerto Rico, petitioner was

convicted of conspiring to possess marijuana and

cocaine with the intent to distribute those sub-

stances, in violation of 21 U.S.C. 846; importing

cocaine, in violation of 21 U.S.C. 952; and possessing

cocaine with the intent to distribute it, in violation of

21 U.S.C. 841(a)\(1). He was sentenced to 25 years in

prison, to be followed by five years of supervised

release. The court of appeals affirmed. Pet. App. Al-

A60.

1. Between 1985 and 1988, an organization known

as La Nena imported large quantities of marijuana

and cocaine from South America into the United

States. On February 26, 1988, two private airplanes

carrying 985 kilograms of cocaine crash-landed at a

clandestine airfield in Puerto Rico. After salvaging

the cargo, Geraldo Portalatin Toledo and others

transferred the cocaine to a waiting truck. Peti-

tioner, accompanied by Portalatin and two others,

drove the truck with the cocaine to petitioner’s house,

a two-hour drive. When they arrived, petitioner,

Portalatin, and two other men transferred the cocaine

to another truck. Petitioner stayed at the house while

the others transported the cocaine in the second

truck. Gov’t C.A. Br. 5-6, 25; Pet. App. A7-A8.

2. At trial, Portalatin testified that the driver of

the truck that was used to transport the cocaine after

the airplane crash was “Hiram,” whom he identified

as petitioner. While cross-examining Portalatin,

counsel for petitioner learned that government

agents had shown Portalatin a photograph of an

3

unidentified individual at his debriefing. Portalatin

had immediately identified petitioner from the photo-

graph—saying, “That’s Hiram.” The picture was not

part of a photo spread and was shown to Portalatin in

the course of a discussion concerning his participa-

tion in various drug transactions. Based on those

circumstances, petitioner moved to strike Portalat-

in’s identification testimony. The district court

denied the motion. Pet. App. A8-A10.

At the close of the government’s case, the district

court was advised that a juror’s daughter, who had

been accompanying her mother to court each day, had

been observed in lengthy conversation with a woman

identified as petitioner’s girlfriend. The district

court interviewed the juror and her daughter. The

interviews disclosed that the juror had discussed the

case with her daughter and had expressed very

definite views about the testimony of the government

witnesses. The daughter also reported that her

mother had indicated that the jurors had discussed

the case among themselves. Her mother denied that

she had talked with other jurors about the case. The

court segregated that juror from the others and later

excused her from the jury. Pet. App. A23-A24, A31.

The court then summoned all of the jurors in-

dividually into chambers and asked them (1) whether

they had discussed the guilt or innocence of the

defendants with the other jurors or anyone else; (2)

whether they had discussed the defendants’ repu-

tations with other jurors or anyone else; (3) whether

they had discussed the defendants’ credibility with

the other jurors or anyone else; and (4) whether they

had reached a decision regarding the defendants’ guilt

or innocence. Pet. App. A24-A25.

4

All but one of the jurors answered “no” to the first

three questions. Only one juror stated that there had

been any discussion of the case, relating to witness

credibility. And he merely reported that “it is hard

for me to say yes or no because yes, we made com-

ments between us but nothing that I can say yes or

no.” C.A. App. 137-138. Four jurors answered “yes”

to the fourth question, indicating that they had

reached a decision regarding the defendants’ guilt or

innocence. Pet. App. A25.

The court then recalled those four jurors, one at a

time, and addressed each one as follows:

As I instructed you before, the guilt or innocence

of the defendants is decided after listening to all

the evidence, to the final summations of the

attorneys and after applying the instructions as

to the law to be given by me.

And my question is, would you be able to keep an

open mind and in the course of your deliberations

with your fellow jurors, reexamine your own

views and change your opinion if convinced it is

erroneous?

All four of the jurors answered “yes.” Based on their

answers and demeanor, the court found that the

jurors could render a “just and impartial verdict.”

Pet. App. A25-A26; C.A. App. 160.

3. On appeal, petitioner argued that the out-of-

court photographic identification procedure resulting

in Portalatin’s identification of petitioner was im-

permissibly suggestive. Relying on Manson v.

Brathwaite, 432 U.S. 98 (1977), the court of appeals

explained that “(t]he reliability of identification tes-

timony allegedly tainted by reason of an impermissi-

5

bly suggestive photograph should be resolved after

consideration of all the circumstances.” Pet. App.

A10-All. Because Pertalatin had spent more than

two hours driving with petitioner in Puerto Rico and

spontaneously stated petitioner’s name upon seeing

the photograph, the court concluded that the in-court

identification was reliable. Jd. at A11-A12.

Moreover, the court of appeals determined that

“(t]he trial court conducted an adequate investigation

into the alleged misconduct and reached a reasonable

conclusion about the jurors’ impartiality.” Pet. App.

A832. In so doing, the court of appeals emphasized that

the district court reached its conclusion only after

“interviewing all the jurors and relevant third

parties, consulting with counsel, and weighing the

testimony, demeanor, and credibility of the various

parties.” Ibid.

Finally, petitioner alleged that the district court

impermissibly shifted the burden of proof to the

defense when it asked the four jurors whether they

would be able to “keep an open mind” and “change

[their] opinion if convinced it [was] erroneous.” Pet.

App. A26. The court of appeals found that the trial

court’s question “did not place the burden of proof on

any specific party but merely asked whether the

jurors retained the ability to re-examine their views

in light of further developments.” Jd. at A34-A35.

Moreover, the court noted that the trial judge

“scrupulously avoided indicating what particular

views he thought the jurors possessed and instead

referred only to the jurors’ ability to change their

‘opinion,’ whatever it might be.” Id. at A35. The

court. noted that defense counsel had failed to propose

“a sound alternative instruction,” and that any

6

“slight ambiguity” in the trial court’s question was

dispelled by its instructions on the government’s

burden of proof and its instruction to the jury to

disregard anything but the court’s instructions

during deliberations. Jd. at A35-A37.'

ARGUMENT

1. Petitioner renews his contention (Pet. 22-35)

that the district court inadequately investigated the

allegation that the jurors discussed the case among

themselves during trial. A district court has broad

discretion to determine the type of investigation to

conduct in response to a claim of juror misconduct.

See, e.g., United States v. Resko, 3 F.3d 684, 690 (3d

Cir. 1993); United States v. Boylan, 898 F.2d 230, 258

(Ist Cir.), cert. denied, 498 U.S. 849 (1990). In

undertaking its inquiry, the trial court is in a

“superior position to observe the ‘mood at trial and

the predilections of the jury.’” United States v.

Resko, 3 F.3d at 690 (quoting United States v.

Chiantese, 582 F.2d 974, 980 (5th Cir. 1978), cert.

denied, 441 U.S. 922 (1979)).

In this case, the district court immediately segre-

gated and then excused the juror who had discussed

the case with her daughter. The court then inter- -

viewed the remaining jurors individually to determine

whether they had discussed the guilt or innocence of

the defendants, the defendants’ reputation, or the

1 Judge Stahl dissented, asserting that the district court’s

inquiry into possible juror misconduct effectively “shift{ed] the

burden of proof from the government to the defendants,” Pet.

App. A41, and that the trial court had not conducted an

adequate investigation into whether the jurors had improperly

discussed the case, id. at A58-A59 n.9.

7

credibility of the witnesses. In response to those

questions, one juror gave an “extremely indefinite”

(Pet. App. A833 n.2) answer indicating that he thought

that he had heard comments about credibility, but

could not recall the substance of them. See C.A. App.

137. None of the other remaining jurors stated that

there had been discussion of the case.

The trial court also asked each juror whether he.or

she had reached a decision in the case. After four

jurors indicated that they had, the district court

called them individually into chambers and directed

them to withhold any decision until the end of the

trial. The court asked whether the jurors could

reexamine and change their opinions, to which each

juror responded “yes.” The court of appeals correctly

determined that that investigation was adequate to

support the trial court’s finding that there was no

misconduct affecting any juror’s ability to render a

fair and impartial verdict.?

2 Petitioner argues (Pet. 27-35) that the district court should

have asked more probing questions of that juror. The court,

however, did not abuse its discretion in determining that any

such comment was immaterial. All of the other jurors denied

that any discussion had occurred; the juror who reported

discussion of credibility denied that there had been any

discussion of the defendants’ guilt or innocence or of their

reputations; and that juror was vague in his recollection of any

comment on credibility. Moreover, the court ascertained from

the four jurors who had formed an opinion on the case that

they would be able to reexamine and revise their opinions in

light of all of the evidence. Thus, the court had a firm basis for

concluding that the jurors were able to render a fair and

impartial verdict. See United States v. Klze, 494 F.2d 394, 396

(9th Cir.) (“The important thing is not that jurors keep silent

with each other about the case but that each juror keep an open

8

Petitioner relies (Pet. 23-24) on Remmer v. United

States, 847 U.S. 227 (1954), and Smith v. Phillips, 455

U.S. 209 (1982), for the proposition that the trial court

should have conducted a full-blown hearing to exam-

ine whether there was prejudicial jury misconduct.

In contrast with this case, however, those decisions

involved the impact of external influences on jury

deliberations. See Remmer, 347 U.S. at 228 (reported

attempt to bribe juror); Phillips, 455 U.S. at 212

(jurerapplied for employment with the prosecution

during the trial). “It is well-established that

{external influences] pose a far more serious threat to

a defendant’s right to be tried by an impartial jury.”

Resko, 3 F.3d at 690. As one court of appeals has

explained, “extra-record influences pose a substantial

threat to the fairness of the criminal proceeding

because the extraneous information completely

evades the safeguards of the judicial process.” bid.

In contrast, where, as here, the allegation of jury

misconduct relates to premature deliberations, “the

proper process for jury decisionmaking has been

violated, but there is no reason to doubt that the jury

based its ultimate decision only on evidence formally

presented at trial.” Jbid. In both types of cases,

moreover, the district court has discretion to

determine how to deal with allegations of juror

misconduct. bid.

Petitioner errs (Pet. 26) in alleging that the

decision in this case conflicts with United States v.

mind until the case has been submitted to the jury.”), cert.

denied, 419 U.S. 835 (1974).

3 As petitioner concedes (Pet. 25), his allegations relate to

alleged intra-jury communications, not external influence.

9

Resko, supra. In that case, the court circulated a

questionnaire inquiring whether the jury had formed

a premature opinion about the case; each of the 12

jurors responded by confirming a report of mid-trial

juror discussions concerning the case, but denied that

he or she had formed a premature opinion about the

verdict. The trial resumed without further investi-

gation. The court of appeals held that the district

court erred in failing to inquire into the nature and

extent of the discussions. 3 F.3d at 690-691. The

court of appeals was further influenced by the fact

that the trial judge had employed a questionnaire that

the jurors completed outside the presence of any

court personnel, thereby creating a potential for

collaboration. Jd. at 691.

In this case, unlike in Resko, the district court

questioned each juror separately and outside the

presence of the others; that provided the court an

opportunity to observe the demeanor of the jurors and

to ensure that there was no collaboration. In addition,

in Resko the jurors all agreed that improper juror

discussions had occurred; here only one juror indi-

cated that there had been any discussions, and his

answer was “extremely indefinite.” Pet. App. A33 n.2.

Finally, while the district court in Resko conducted

no investigation into the nature of the discussions,

the trial court’s inquiry in this case established that

there was no premature discussion of the defendants’

gu'lt or innocence or their reputations. Resko there-

fore does not conflict with the decision in this case.‘

4 Nor is there a conflict between the decision below and

United States v. Richman, 600 F.2d 286 (1st Cir. 1979) (Pet.

35). There, the court held that when juror misconduct is

alleged, the trial court should determine if the misconduct

10

2. Petitioner contends (Pet. 36-43) that the district

court erred in asking the four jurors who had

indicated that they had reached a decision whether

they could change their opinion “if convinced it [was]

erroneous.” Pet. App. A26. He contends that the

court’s inquiry effectively shifted the burden of proof

to the defense and suggested that the jury could

acquit petitioner only if it concluded that a guilty

verdict would be “erroneous.”°

The district court’s question was not reversible

error. The trial court’s inquiry did not purport to

allocate or define the burden of proof; it merely

inquired whether the jurors would be able to change

their opinions, whatever they might be. Pet. App.

A35. Moreover, the court’s instructions repeatedly

and clearly instructed the jury concerning the gov-

ernment’s burden of proof. See id. at A386 n.3.° Jurors

are of course presumed to follow their instructions

(see Richardson vy. Marsh, 481 U.S. 200, 206 (1987)),

and the court of appeals properly held that the

question asked by the district court at mid-trial did

occurred; evaluate whether any misconduct was prejudicial;

and specify the reasons for its decision. Jd. at 295. At the same

time, however, the court explained that “[iJt is left to the

discretion of the trial court to choose the extent and type of

investigation required to resolve the question.” Jbid. Here,

the district court’s investigation was sufficient to support its

conclusion that the jury could reach a just and impartial

verdict. Further, any inconsistency between Richman and the

decision below does not warrant this Court’s review. See

Wisniewski v. United States, 353 U.S. 901, 902 (1957).

® Petitioner did not propose an alternative question or

instruction at trial. Pet. App. A365.

® The court of appeals counted ten references to the gov-

ernment’s burden of proof in the jury charge. Pet. App. A36.

11

not serve to mislead the jurors regarding the burden

or the required quantum of proof.

3. Petitioner contends (Pet. 44-50) that the photo-

graphic identification procedure used to obtain

Portalatin’s out-of-court identification of petitioner

tainted Portalatin’s in-court identification.

In Manson v. Brathwaite, 432 U.S. 98, 114 (1977),

this Court held that “reliability is the linchpin in

determining the admissibility of identification testi-

mony.” Relying on Neil v. Biggers, 409 U.S. 188, 199-

200 (1972), the Court explained that in making a

reliability determination, courts should consider “[{1]

the opportunity of the witness to view the criminal at

the time of the crime, [2] the witness’ degree of

attention, [3] the accuracy of his prior description of

the criminal, [4] the level of certainty demonstrated

by the witness at the confrontation, and [5] the time

between the crime and the confrontation.” Manson v.

Brathwaite, 432 U.S. at 114. Those factors, in turn,

are to be weighed against “the corrupting effect of the

suggestive identification itself’ in determining

whether the identification testimony is admissible.

Ibid.

Applying Manson, the courts of appeals first

determine whether the identification procedure was

impermissibly suggestive. They next consider the

reliability of the identification by determining

whether, in light of the five Biggers factors, the in-

court identification was reliable despite the sugges-

tiveness of the out-of-court procedure. See, e.g.,

McFadden v. Cabana, 851 F.2d 784, 789-790 (5th Cir.

1988), cert. denied, 489 U.S. 1083 (1989); Dooley v.

Duckworth, 832 F.2d 445, 449-450 (7th Cir. 1987), cert.

denied, 485 U.S. 967 (1988); United States v. Bagley,

12

772 F.2d 482, 494 (9th Cir. 1985), cert. denied, 475 U.S.

1023 (1986).

Applying the Manson test, the courts below cor-

rectly admitted Portalatin’s identification testimony.

The out-of-court identification procedure was not

impermissibly suggestive. The prosecutor showed

Portalatin a single photograph while debriefing him

about a large conspiracy involving many people. The

prosecutor in no way suggested that the person in the

photograph was petitioner, and Portalatin’s sponta-

neous identification of petitioner as “Hiram” was

therefore reliable.

In any case, even if the identification procedure was

impermissibly suggestive, Portalatin’s in-court iden-

tification of petitioner was admissible. Portalatin

observed petitioner for more than two hours while

they drove the cocaine from the airstrip to petition-

er’s house. Moreover, without prompting by the pros-

ecutor, Portalatin immediately recognized petitioner

from the photograph and identified him by name.

Accordingly, this is a case in which the in-court

identification of the defendant clearly stemmed from

the witness’s personal knowledge of the defendant and

not from any tainted identification procedure.

Petitioner complains (Pet. 47-50) that the court of

appeals bypassed the first step of the Biggers analysis

by ignoring the alleged suggestiveness of the identi-

fication procedure. The court of appeals, however,

apparently assumed for the sake of argument that the

photographic identification procedure was impermis-

sibly suggestive. In analyzing petitioner’s claim, the

court indicated that “(t]he reliability of identification

testimony allegedly tainted by reason of an impermis-

sibly suggestive photograph should be resolved after

13

consideration of all the circumstances.” Pet. App.

A10-A11. It went on to find that the in-court identifi-

cation was reliable because of Portalatin’s opportu-

nity to view petitioner at the time of the offense and

because he spontaneously identified petitioner by

name when he saw the photograph. Jd. at All.

Although the court of appeals did not explicitly weigh

those factors against any impermissible suggestive-

ness, the court’s full consideration of the relevant

factors is apparent from its discussion of all the

circumstances.’

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

JOEL M. GERSHOWI?TZ

Attorneys

MARCH 1994

7 In previous cases, the First Circuit explicitly weighed the

Biggers factors against the suggestiveness of the identification

procedure. See, e.g., Judd v. Vose, 813 F.2d 494, 499 (1st Cir.

1987); United States v. Bouthot, 878 F.2d 1506, 1514 (1st Cir.

1989). There is no reason to assume that it departed from that

approach here.