# Opposition Brief — Ortiz-Cameron v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1003

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0838%3A2. Public record. Not legal advice.