Reply Brief — Hirano v. United States

Supreme Court, U.S.

FILED

No. 93-1684 AUG 1 1984

VET QF Tie 21

te le

In THE

Supreme Court of the Wuited States

OCTOBER TERM, 1994

MICHAEL HIRANO,

Petitioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITIONER’S REPLY BRIEF

CARTER G. PHILLIPS *

MARK D. HOPSON

FRANK R. VOLPE

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

* Counsel of Record

August 1, 1994 Counsel for Petitioner

WILSON - Epes PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

-

TABLE OF AUTHORITIES

CASES Page

Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295

RUNITND idchshahsoetieneidassibacuetentee mee era 2

Bulova Watch Co. v. United States, 365 U.S. 753

i _. SRRAEVERREPND rer ae al 69 chen eT 2

Central Bank v. First Interstate Bank, 114 S. Ct.

EE, PE et Oe ne 3

Commissioner V. Stidger, 386 U.S. 287 (1967) _..... 2

Darr v. Burford, 339 U.S. 200 I ee es 3

Dickson Vv. United States, 182 F.2d 131 (10th Cir.

I a liechcaratnt adda al eet 2

Honea Vv. United States, 344 F.2d 798 (5th Cir.

NIE orice enene terete ee peg 2

Hughes Tool Co. v. Trans World Airlines, 409 U.S.

er nee oe er ta ra 8 3

In re Fox, 902 F.2d 411 (5th Cir. TEE seodeecsccenness 2

Matter of Dyke, 943 F.2d 1435 (5th Cir. 1991) ....... 2

McNally v. United States, 483 U.S. 350 (1987)... 8

Mitchell v. Forsyth, 472 U.S. 511 (1985)... . 1

Nixon V. Fitzgerald, 457 U.S. 731 (1982) 1

Pruitt v. Levi Strauss & Co., 932 F.2d 458 (5th

Cir. 1991)... 2

Shearson/American Express, Inc.\ Vv. 1, McMahon, 482

Re OP COD eceecciericancecniecesconcrsseeeoeseeeiecs,. 3

United States v. Aguilar, 756 F.2d 1418 (9th Cir.

ERS rn AnRneee Naas eI 4

United States v. Carver, 260 U.S. 482 (1923) vee 3

United States v. Gayle, 967 F.2d 483 (11th Cir.

1992) (en banc), cert. denied, 113 S. Ct. 1402

RRS le eR Se ner salons A 3

United States Vv. Kimberlin, 781 F.2d 1247 (7th

Cir. 1985), cert. denied, 479 U.S. 938 (1986). 4

United States v. Leggett, 312 F.2d 566 (4th Cir.

1962) eee 4

United States v. Pollard, ‘486 F.2d 190 (5th Cir.

AREAS ct Tie SR REE Ra Tey 5 TO 1

United States v. Randolph, 460 F.2d 367 (5th Cir.

1972) .... 1

United States v. Wilkes, 732 F.2d 1154 (3d Cir.),

cert. denied, 469 U.S. 964 (1984) _ ;

United States v. Williams, 112 S. Ct. 1735 ( 1992)

me Ww

IN THE

Siywenw Cant of the United States

OCTOBER TERM, 1994

No. 93-1684

MICHAEL HIRANO,

. Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITIONER’S REPLY BRIEF

The government agrees that there is indeed a split in

the circuits concerning whether the “intent to defraud” is

an essential element of 18 U.S.C. § 921. The government

nonetheless argues that any dispute is “largely semantic.”

Opp. 8.’ That is not so. The Fifth Circuit has made

clear that an indictment charging a violation of Section

912 must allege, and the government must prove, that the

defendant acted with the intent to defraud. See United

States v. Pollard, 486 F.2d 190, 191 (Sth Cir. 1973):

United States v. Randolph, 460 F.2d 367, 369-70 (Sth

' Respondent notes that although addressed by the district court,

this issue was not considered by the court of appeals. Opp. 6.

However, this Court has held that “pure issue(s) of law” presented

in petition may be appropriate for decision even though not

addressed by the lower court. Nixon v. Fitzgerald, 457 U.S. 731,

743 n.23 (1982); see also Mitchell v. Forsyth, 472 U.S. 511 (1985).

2

Cir. 1972); Honea v. United States, 344 F.2d 798, 801-

04 (Sth Cir. 1965). The Fifth Circuit imposes this re-

quirement in order to protect the defendant against prose-

cution for harmless acts. Other circuits have held that

an intent to defraud is not an element of the offense. This

is not mere semantics but a crucial difference in the

nature and scope of what the goverment must prove to

establish a false personation offense. Any differences in

interpretation among the circuits should be resolved by

this Court to avoid the possibility that criminal culpability

will turn more on geography than it will on the uniform

. application of federal law.

The government attempts to disparage the stark conflict

among the circuits by arguing that the Fifth Circuit has

not recently addressed the issue. Opp. 9. But, the law in

the Fifth Circuit is well established, and there is no basis

to believe that the Fifth Circuit would change its position

today. The panel opinions at issue are the law of the

Fifth Circuit until “en banc reconsideration or a super-

seding contrary decision of the Supreme Court.” Matter

of Dyke, 943 F.2d 1435, 1442 (Sth Cir. 1991); see also

Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (Sth

Cir. 1991); In re Fox, 902 F.2d 411, 413 (Sth Cir.

1990). Moreover, this Court ccnsistently has granted

certiorari based on the conflict involved and not the age

of the conflicting cases. See, e.g., Alamo Land & Cattle

Co. v. Arizona, 424 U.S. 295, 300 (1976) (decision in

conflict was nearly eighteen years old); Commissioner v.

Stidger, 386 U.S. 287, 289 (1967) (conflicting decision

was eighteen years old); Bulova Watch Co. v. United

States, 365 U.S. 753, 754 n.1 (1961) (opinion in con-

flict was issued over twenty years earlier).

The government emphasizes the fact that “eight other

circuits have concluded that ‘intent to defraud’ is not

required to be specifically pleaded.” Opp. 7.? Of course,

* The Fifth Circuit may not stand alone in requiring the intent

to defraud. The Tenth Circuit has suggested that it would adopt

a similar reading of the statute. See Dickson v. United States,

3

the fact that these circuits have aligned themselves may

indicate nothing more than a shared but nonetheless mis-

taken approach. This Court has overruled the prevailing,

not to mention unanimous, interpretation among the

courts of appeals in the past. See, e.g., McNally v.

United States, 483 U.S. 350, 358 (1987) (overruling

“each of the Courts of Appeals that has addressed the

issue”); see also Central Bank v. First Interstate Bank,

114 §. Ct. 1439, 1456 n.1 (1994) (Stevens, J., dissent-

ing); Shearson/American Express, Inc. v. McMahon,

482 U.S. 220, 225 (1987).

The government also notes that certiorari has twice

been denied on the issue of whether intent to defraud is

an essential element of a section 912 prosecution, see

United States v. Gayle, 967 F.2d 483 (11th Cir. 1992)

(en banc), cert. denied, 113 S. Ct. 1402 (1993); United

States v. Wilkes, 732 F.2d 1154 (3d Cir.), cert. denied,

469 U.S. 964 (1984), and that “[slince that time, there

has been no development warranting a different result in

this case.” Opp. 9. It is of course well settled that a

“denial of certiorari imports no implication or inference

concerning the Court’s view of the merits.” Hughes Tool

Co. v. Trans World Airlines, 409 U.S. 363, 366 n.1

(1973); see also Darr v. Burford, 339 U.S. 200, 226

(1950) (Frankfurter, J., dissenting) (denial of certiorari

means nothing more than that “this Court has refused to

take the case”); United States v. Carver, 260 U.S. 482,

490 (1923). Moreover, the conflict in the circuits has con-

tinued to persist since the Court denied review of the

issue. It is now clear that this Court’s review is necessary

to bring uniformity to the law.

2. Respondent claims that this Court should not hear

petitioner’s duplicity claims because they were not pre-

served. In general, certiorari will not be granted where

182 F.2d 131, 132 (10th Cir. 1950) (“[t]here must be the false

representation of being an officer with intent to defraud, and some

overt act in keeping with the false pretense’’).

4

“the question presented was not pressed or passed upon

below.” United States v. Williams, 112 S. Ct. 1735, 1738

(1992). Petitioner in fact raised this duplicity claim in

the courts below, but the court of appeals declined “to

reconsider the propriety of the district court’s judgment

as to these issues in this appeal.” Pet. App. 3a n.1.*

Thus, the claim has been preserved for this Court’s re-

view, andthe court of appeals’ failure to consider the

claim does not foreclose this Court’s review. Moreover,

the legal issues invelved are clear and well developed,

and there is therefore no practical obstacle that would

prevent an informed decision on the question by this

Court.

All of circuit courts reaching this issue agree that an

indictment that combines the two offenses of Section 912

into one count is duplicitous. See United States v. Kim-

berlin, 781 F.2d 1247, 1250 (7th Cir. 1985), cert. de-

nied, 479 U.S. 938 (1986); United States v. Aguilar,

756 F.2d 1418, 1420 (9th Cir. 1985); United States v.

Leggett, 312 F.2d 566, 568-69 (4th Cir. 1962). Peti-

tioner’s claim focuses not on the existence of the duplicity,

but rather on the conflict that arises as to the practical

effect of such a flaw in the indictment. On this issue, the

Seventh Circuit parts company with the court below, as

well as other circuits, and has indicated that such

“duplicity . . . is of a technical semantic nature.” Kim-

berlin, 781 F.2d at 1251. The question is whether the

standard for determining whether an indictment is duplici-

tous may be set aside where the crime is false personation

of a federal officer. That cannot be the law, and this

Court should grant review to make that clear.

3 Although the Fourth Circuit was under the mistaken impres-

sion that it had decided the duplicity issue when it affirmed the

district court’s denial of petitioner’s section 2255 motion to vacate,

petitioner again raised the duplicity claim when he appealed his

conviction to the court of appeals. Pet. App. 3a n.1.

5

CONCLUSION

For the reasons set forth above and those stated in the

petition, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

CARTER G. PHILLIPS *

MARK D. HOPSON

FRANK R. VOLPE

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

* Counsel of Record

August 1, 1994 Counsel for Petitioner