Opposition Brief — Dale v. United States

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No. 93-412 Poona

;

Jn the Supreme Court of the United States —

OCTOBER TERM, 1993

DAVID M. DALE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYs, II]

Solicitor General

MICHAEL L. PAUP

Acting Assistant Attorney General

ROBERT E. LINDSAY

ALAN HECHTKOPF

GAIL BRODFUEHRER

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

= BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the search warrant in this case satisfied

the particularity requirement of the Fourth Amend-

ment.

2. Whether petitioner made a “substantial prelimi-

nary showing” under F’ranks v. Delaware, 438 U.S. 154

(1978), that material false statements were intentionally

or recklessly included in a search warrant affidavit.

3. Whether the district court abused its discretion by

admitting tape recordings without making an express

finding that the tapes were trustworthy.

4. Whether a course of conduct that includes viola-

tions of the criminal provisions of the Internal Revenue

Code can properly support convictions for conspiracy to

defraud the United States in violation of 18 U.S.C. 371

and wire fraud in violation of 18 U.S.C. 1343.

5. Whether the district court erroneously defined the

term “reasonable doubt” in its instructions to the jury.

6. Whether petitioner’s sentence was inconsistent

with the Sentencing Guidelines.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 463 (1976) .................. 14

Application of Lafayette Academy, Inc., 610 F.2d 1 (Ist

ei eat acces sven evaveenavveviemccevesine.aeeeeesece. 12

Cage v. Louisiana, 498 U.S. 39 (1990) .................... 22, 23

Center Art Galleries-Hawaii, Inc. v. United States, 875

RS 12, 15, 16

Coolidge v. New Hampshire, 403 U.S. 443 (1971) .......... 11

Estelle v. McGuire, 112 S. Ct. 475 (1991) ......................., 11

Franks v. Delaware, 438 U.S. 154 (1978) ...................... 9,17

Huddleston v. United States, 485 U.S. 681 (1988) ....... 18

Massachusetts v. Sheppard, 468 U.S. 981 (1984) .......... 13, 14 -

Stanford v. Texas, 379 U.S. 476 (1965) ...cccccccccc00----.. 1]

United States v. Campanale, 518 F.2d 352 (9th Cir.

1975), cert. denied, 423 U.S. 1050 (1976) ....................... 27

United States v. Chesson, 933 F.2d 298 (5th Cir.), cert.

denied, 112 S. Ct. 583 (1991) ......................................... 20

United States v. Condo, 741 F.2d 238 (9th Cir. 1984),

cert. denied, 469 U.S. 1164 (1985) .......00c00000000-0---- 20-21

United States v. Decker, 956 F.2d 773 (8th Cir. 1992) .. 16

United States v. Falon, 959 F.2d 1143 (ist Cir. 1992) .... 12

United States v. Felix, 112 S. Ct. 1377 (1992) ................ 25

l’nited States v. George, 975 F.2d 72 (2d Cir. 1992) ....... 12

['nyted States v. Giry, 818 F.2d 120 (1st Cir.), cert.

UPPIE, GOPO. W cE ED CI OGED voce cceceenccecccceccscdecece.-e......... 27

Cases—Continued: Page:

United States v. Johnson, 690 F.2d 60 (3d Cir. 1982),

cert. denied, 460 U.S. 12346 (IGGB) ...cccccccevsececssesscoescesovess 12

United States v. Kramer, 955 F.2d 479 (7th Cir.), cert.

oeabendl, 125 GG; Cy, TG CIID eceenesicsccascerecastcereeeecseesocones 27 |

United States v. Leary, 846 F.2d 592 (10th Cir. 1988)... 12, 15 :

United States v. Leon, 468 U.S. 897 (1984) ................008. 13, 15

United States v. Lovasco, 431 U.S. 783 (1977) ............... 20, 25

United States v. Luk, 859 F.2d 667 (9th Cir. 1988) ........ 14

United States v. Mastroianni, 749 F.2d 900 (Ist Cir.

PUNINELD . icicccansctiscksenstctassocunaasnacianaeamnbiachanisidecnananees 17

United States v. Michaelian, 803 F.2d 1042 (9th Cir.

EEE niiiscbuiouaaes sentinloadintdiemuanaesatiad saeniniegaathiiaeadebtiimiaeranten 16

United States vy. Miller, 753 F.2d 1475 (9th Cir. 1985) ... 17

United States v. Miller, 545 F.2d 1204 (9th Cir. 1976),

cert. denied, 420 U.S. 930 (1977) ....cccoccccccccscccccvenccessceeee 21

United States v. Minarik, 875 F.2d 1186 (6th Cir.

EEE ssdcisendensvadsacusdaciahudaodanacnekinadd nia esickibdd dae banioeais 21

United States v. Mohney, 949 F.2d 899 (6th Cir. 1991) .. 22

United States v. Niven, 952 F.2d 289 (9th Cir. 1991) ..... 26

United States v. Notch, 939 F.2d 895 (10th Cir. 1991)... 20, 22

United States v. Shermetaro, 625 F.2d 104 (6th Cir.

RIED stindiseubscicumdbibiesinuidisstsia ens ciddakiiaamenadae aa iamainiialeubiadias 20

United States v. Sturman, 951 F.2d 1466 (6th Cir.

SED aiccsesm-einicccenacenieeoianindensadaoaiadnoaededansisnmiciciadaiedialie 20, 22

United States v. Torres, 901 F.2d 205 (2d Cir.), cert.

ee Be TE, Ne CED cctiunntcde duck usccicadactscucaswedéseantes 27

United States v. Turkish, 623 F.2d 769 (2d Cir. 1980),

CONE; COT, SED EF Bey BOGE CRIED nceececcedcwersncsescencsvcrsece 20)

United States v. Wuagneur, 683 F.2d 1343 (11th Cir.

1982), cert. denied, 464 U.S. 814 (1983) 2.0.0.0... etate 3 14

Zobrest v. Catalina Foothills School Dist., 113 S. Ct.

BS | ETRE Ee LANE SEN yO! Gl Fowl ME OR EME ONOE Sy een 20, 25

Constitution, statutes and rules:

U.S. Const. :

Art. I, §9, Cl. 3 (Ex Post Facto Clause) ......cccccccccceee.

LE Orne A ete eee ON RN 9, 11,

Amend. V (Double Jeopardy Clause) ................ccc0000.

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Fed. R. Evid.:

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Sentencing Guidelines:

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BR | ROE A RE Aten ee aA MORAL NONE oe ELT.

Miscellaneous:

Criminal Jury Instructions for the District of Columbia

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5 J. Weinstein & M. Berger, Weinstein’s Evidence

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§In the Supreme Court of the Gunited States

OCTOBER TERM, 1993

No. 93-412

DAVID M. DALE, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. al-a70)

is reported at 991 F.2d 819. The order of the court of ap-

peals remanding the case for clarification (Pet. App. a71-

av3) is unreported, as is the district court’s memoran-

dum order (Pet. App. a74-a75) transmitting two memo-

randum decisions (Pet. App. a76-a81, a82-al102) to the

court of appeals. The district court’s decision on peti-

tioner’s motion to dismiss (Pet. App. a103-a125) is re-

ported at 782 F. Supp. 615.

JURISDICTION

The judgment of the court of appeals was entered on

April 6, 1993. A petition for rehearing was denied on

June 16, 1993. Pet. App. al61. The petition for a writ of

(1)

certiorari was filed on September 14, 1993. The jurisdic-

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

STATEMENT

Following a jury trial in the United States District

Court for the District of Columbia, petitioner was con-

victed on one count of conspiracy to defraud the United

States and to commit various offenses, in violation of 18

U.S.C. 371; one count of subscribing to a false corporate

tax return, in violation of 26 U.S.C. 7206(1); one count of

attempting to evade income taxes, in violation of 26

U.S.C. 7201; one count of wire fraud, in violation of 18

U.S.C. 1848; two counts of concealing material facts from

the Department of Defense by trick, scheme, or artifice,

in violation of 18 U.S.C. 1001; and one count of making

false statements to the Department of Defense, in viola-

tion of 18 U.S.C. 1001. Pet. App. al4-al5. He was sen-

tenced to 41 months’ imprisonment, a $675,000 fine, and a

two-year term of supervised release. /d. at al5-al6. The

court of appeals affirmed the convictions, but remanded

for resentencing on grounds not relevant to the

questions presented by the petition. /d. at a70.

1. The evidence at trial showed that petitioner and

Michelle Ashton were Executive Vice-President and

President, respectively, of Automated Data Manage-

ment, Inc. (ADM), a Washington, D.C., firm. Ashton

owned 82% of ADM’s stock and petitioner owned the re-

maining 18%. In early 1985, ADM secured a contract to

sell computers to the United States Army. Later that

year, ADM opened offices in Germany and Korea. Ter-

ence Sweeney was hired as Vice-President in charge of

ADM’s European operations and David Bowers was hired

as his counterpart in charge of Asian operations. Martin

Segal subsequently became Chief Financial Officer of

ADM. Pet. App. a4.'

In the summer of 1986, Bowers arranged for Nancy

Kdwards, a legal adviser to ADM’s Korean office, to set

up a Guam corporation that would be able to take advan-

tage of business opportunities not available to ADM.

Edwards incorporated Asia Management Systems, Inc.,

whose name was soon changed to ADM Asia. Ashton and

Dale each owned 37.5% of that company, while Bowers

owned 25%. Following instructions from petitioner,

Bowers also arranged for Edwards to purchase four

Hong Kong corporations: Capulus, Fossano, Swaffham,

and Gemona. Ownership of Swaffham and Gemona subse-

quently was transferred to petitioner, Ashton, and Bow-

ers in the same percentages as ADM Asia. Pet. App. a5.

In February, May, and September 1986, petitioner and

Ashton received payments totaling $50,000 from ADM

funds channeled through ADM’s Korean office. They did

not report those payments as income on their 1986

federal income tax returns. Pet. App. a5-a6.

In addition, ADM made several payments to related

companies during 1986 and 1987, and falsely treated some

of those payments as business deductions. First, in Au-

gust 1986, ADM paid $200,000 to Arlington Associates, a

firm that was owned in equal shares by petitioner and

Ashton. Arlington Associates initially reported the

payment as a loan from Guam National Bank. Petitioner

later instructed Bowers to draft documents reflecting

' ADM, Ashton, Sweeney, and Segal were tried with petitioner,

and were found guilty of all charges against them. Pet. App. al4-

al5. Their appeals from the judgments of conviction were

consolidated with petitioner’s appeal (id. at al-a2, al4-al6), but

they do not join in this petition. Ashton filed a separate petition

for a writ of certiorari (No. 93-131), which was denied on October

4, 1993.

that the payment was a loan to Arlington from Asia

Management Systems (7.e., ADM Asia). Pet. App. a6.

Second, in late 1986, ADM paid $417,532 to Swaffham

and Gemona for marketing and product studies and other

consulting work that was never actually performed.

ADM recorded those payments as deductible business

expenses. Third, in March 1987, petitioner and Bowers

created a phony debt of $500,000 to Swaffham. The

$500,000 “debt” was for software development purport-

edly performed by Swaffham but actually performed by

ADM’s Korean office at a cost of only $30,000. The

“debt” was deducted as a business expense on ADM’s

1986 tax return. Pet. App. a6-a7.

Meanwhile, Terence Sweeney, the Vice-President in

charge of ADM’s European operations, hired Larry

Knight as a consultant. Sweeney and Knight subse-

quently formed a German corporation, ADM Hard- und

Software Handelgesellschaft GmbH in Deutschland

(ADM H&S) to take advantage of non-Army business

opportunities in Germany. Petitioner and Ashton each

owned 37.5% of ADM H&S, Sweeney owned 25%, and

Knight was appointed general manager. Pet. App. a7-a&.

In December 1986, ADM wire-transferred $316,000 to

Bourbonia Invest AG (Bourbonia), a Swiss investment

firm operated by a friend of Knight’s. In January 1988,

ADM made a second payment to Bourbonia, in the

amount of $102,655. Those payments were purportedly

for consulting work performed by Bourbonia for ADM,

but they in fact accrued to the benefit of petitioner,

Ashton, ADM, and ADM H&S. The payments were

treated by ADM as business deductions. Pet. App. a8-a®.

In early 1987, petitioner filed three forms with the De-

partment of Defense in order to obtain a security clear-

ance for ADM. Petitioner first completed a “Personne!

Security Questionnaire,” which asked him to disclose all

of his overseas business connections. In responding to

that question, petitioner made no mention of the Hong

Kong corporations, Swaffham and Gemona, although he

had acquired a 37.5% interest in each of those two com-

panies by November 1986. Petitioner also signed a

“Statement of Full Disclosure of All Foreign Connec-

tions” in which he purported to “explain and fully dis-

close [his] foreign connections”; on that form, he dis-

closed only his 37.5% interest in ADM H&S. Pet. App.

a9-al0. In addition, petitioner signed a form entitled

“Certificate Pertaining to Foreign Interests,” which in-

dicated that ADM did not have interlocking directors

with any foreign interests. /bid.

In March 1987, after becoming concerned about his fu-

ture with ADM and about potential criminal liability,

Bowers began to tape record conversations with peti-

tioner and Ashton. He also withdrew funds from

Gemona’s and Swaffham’s bank accounts that he claimed

represented his interest in the two corporations. Bow-

ers testified that those actions represented his efforts to

protect himself. Pet. App. al0-all & n.13.

On August 14, 1987, Bowers transmitted a resignation

letter by facsimile to Ashton. In response, Ashton and

Segal flew to Korea in an attempt to persuade Bowers to

turn over all business records, including all tape record-

ings of telephone conversations, and to surrender his in-

terests in ADM Asia, Gemona, and Swaffham. When

Bowers refused, ADM and its principals took steps to al-

ter the tax treatment of many of the transactions out-

lined above. Pet. App. all.

First, in late August or early September 1987, Segal

notified ADM’s outside accountants that ADM’s records

had to be changed because the $417,532 paid to Gemona

and Swaffham in December 1986 was not deductible.

Segal also told the accountants that there was additional

revenue that had not been recorded. ADM’s 1986 corpo-

rate tax return reflecting that information was timely

filed on September 15, 1987. Pet. App. all-al2.

Second, on November 30, 1987, petitioner and Ashton

met with their personal accountant and told him that

they had received taxable income that had not been in-

cluded on their 1986 individual tax returns. Ashton sub-

sequently filed an amended 1986 return adding taxable

income of $40,000, which she characterized as previously

unreported travel advances. Petitioner later added

$10,000 to the taxable income reported on his 1987 re-

turn. Pet. App. al2.

Third, apparently in late August 1987, petitioner and

Ashton signed a promissory note promising to repay

ADM the $200,000 that ADM had paid to Arlington Asso-

ciates in August 1986. That payment to Arlington Asso-

ciates had initially been recorded as a loan from Guam

National Bank and was later characterized by petitioner

as a loan from Asia Management Systems. Pet. App. al2.

Fourth, during the summer of 1988, after federal

agents searched ADM’s headquarters, Segal informed

one of ADM’s accountants that ADM had mistakenly

paid $316,000 in consulting fees on behalf of ADM H&S.

Accordingly, the accountant prepared an amended return

eliminating the deduction that ADM had previously

taken for the December 1986 payment to Bourbonia. Se-

gal drafted a memorandum to the accountant explaining

that both the $316,000 payment and the subsequent

$102,655 payment to Bourbonia were made in error. He

also said that petitioner and Aston would repay ADM for

the amounts paid to Bourbonia. Shortly thereafter, four

promissory notes were prepared to divide the indebted-

ness between petitioner and Ashton according to their

respective ownership interests in ADM. Pet. App. al3.

Finally, Segal told one of ADM’s accountants in March

1989 that he had discovered that a $500,000 item formerly

treated as a business deduction for software development

had never been paid and should have been reversed. The

accountant subsequently prepared an amended return

deleting the $500,000 deduction. Pet. App. al3.

2. Prior to trial, petitioner filed a motion to suppress

evidence seized during a search of ADM’s offices in

Washington, D.C., arguing that the warrant authorizing

the search was unduly general. The warrant was based

on an extensive affidavit of Heide K. Shintani, a special

agent of the Defense Criminal Investigative Services,

setting out alleged criminal violations of a variety of fed-

eral fraud statutes arising out of ADM’s alleged substi-

tution of less costly disk drives in lieu of the disk drives

called for by the terms of ADM’s contract with the

Army. Pet. App. a83-a84.

The warrant sought “records and documents as fur-

ther described in Attachment B.” Pet. App. a44. Attach-

ment B set forth numerous categories of business

records believed to contain “spec fic information regard-

ing the false statements and claims made by ADM.”

Ibid.” Each category of records set forth in the

* Those records included: claims for payment from the gov-

ernment; Department of Defense Forms 250; Army purchase or-

ders and ADM shipping documents; invoices showing deliveries

from several named suppliers; records of payments to the same

named suppliers; receipts of payments from the Army; receipts of

rebates from vendors; records reflecting installation of specified

hard disks; production of assembly records; overseas bank account

records; correspondence and memoranda between ADM and the

same named suppliers; internal documents pertaining to the substi-

tution of the hard disks; directions prepared for assembly techni-

cians; and financial documents submitted to the Army or the Small

Business Administration. Pet. App. a85 n.3.

Attachment was separated by a semi-colon; at the end of

the list, following a comma, was the phrase “and other

records which relate to the criminal scheme outlined in

the above affidavit” of Agent Shintani. /d. at a44, a&85 n.3.

The time period of the records to be seized was limited to

“June 1, 1984 through the present.” /d. at a44. The war-

rant was executed on June 16, 1988, by Special Agent

Shintani and approximately 14 other law enforcement of-

ficers. Id. at a84-a85.

The district court denied the motion to suppress. The

court found that the warrant was not overly broad for

two reasons: first, the warrant identified-specific and

limited categories of records to be seized; and second, the

warrant limited the search to documents related to the

criminal scheme outlined in the underlying affidavit.

Pet. App. a44, a99-al01.

3. The court of appeals affirmed petitioner’s convic-

tions. Pet. App. al-a70. The court rejected petitioner’s

claim that the tape recordings made by Bowers should

not have been admitted because the district court failed

to make an explicit threshold determination that they

were trustworthy. /d. at a36-a38. Noting that admission

of tape recordings is within the discretion of the district

court “so long as the tapes are authentic, accurate and

trustworthy,” the court of appeals held that an express

statement by the lower court that the tapes were reliable

was not essential in this case “because the record indi-

cates that the court accepted the government’s proffer of

trustworthiness and rejected [petitioner’s] concerns.”

Id. at a36. In reaching that conclusion, the court of ap-

peals relied on the fact that the tapes were admitted only

after the government had presented extensive testimony

concerning the creation and handling of the tapes. /d. at

a37.

ee |

The court also rejected petitioner’s argument that the

trial court erred in refusing to hold an evidentiary hear-

ing under Franks v. Delaware, 438 U.S. 154 (1978), to in-

vestigate whether Agent Shintani had intentionally or

recklessly made false statements in her affidavit sup-

porting the warrant to search ADM’s offices and ware-

house. Pet. App. a38-a43. The court held that Agent

Shintani’s failure to contact any Army officials in order

to verify the allegations made by former ADM employees

did not evidence reckless disregard for the truth, be-

cause an investigating officer need not “exhaust every

possible lead, interview all potential witnesses, and ac-

cumulate overwhelming corroborative evidence” in order

to demonstrate probable cause. Jd. at a40. Moreover, the

court noted that the agent’s “failure to contact Army of-

ficials may have been entirely prudent given the possibil-

ity of a leak back to ADM.” Jbid. Accordingly, the court

concludedthat “the district court correctly refused to

hold a Franks hearing because [petitioner] failed to make

a substantial preliminary showing that the government

had knowingly, intentionally or recklessly disregarded

the truth.” Jd. at a43.

The court next addressed petitioner’s contentions that

the warrant was overly broad and that the warrant’s in-

corporation of Agent Shintani’s affidavit was not a suffi-

cient limitation on the government’s search. Pet. App.

a45-a49. The court rejected the district court’s finding

that the warrant was sufficiently particular on its face

to satisfy the Fourth Amendment. In the court of ap-

peals’ view, “(t]he warrant’s explicit authorization to the

agents to seize ‘business records including, but not lim-

ited to’ those specifically identified subjected essentially

all of ADM’s records dated after June 1, 1984 to seizure”

and rendered the warrant unduly general on its face. /d.

at a44.

The court held, however, that Agent Shintani’s affi-

davit sufficiently narrowed the scope of the warrant so

as to satisfy the particularity requirement. Pet. App.

a45-a48. The court explained that a search warrant may

be construed with reference to a supporting affidavit if

the affidavit is incorporated in, and accompanies, the

warrant. /d. at a45. The court then upheld the district

court’s finding that the warrant incorporated the Shin-

tani affidavit. /¢. at a45-a47 & n.49.

In addition, although noting that the record was not

clear as to whether the affidavit had actually accompa-

nied the warrant, the court of appeals found that the al-

legations in the affidavit were in fact used to limit the

scope of the warrant. Pet. App. a47-a48. The court ex-

plained that “Agent Shintani, who prepared the affidavit

and obtained the warrant, was present at the search,

oversaw the warrant’s execution and guided the partici-

pating agents in seizing documents to conform the

search to her understanding of the warrant’s require-

ments.” Jd. at a48. Those precautions, the court held,

“sufficiently limited the discretion of the executing

agents.” bid. Accordingly, the court concluded that the

warrant in this case was sufficiently particular “because

it identified several specific categories of documents to

be seized, incorporated an affidavit to limit the search

and was executed by the affiant pursuant to a specific

plan.” bid.

The court of appeals also found unpersuasive peti-

tioner’s argument that the district court’s definition of

reasonable doubt impermissibly lowered the govern-

ment’s burden of proof. Pet. App. a57-a58. Petitioner

contended that the court’s instructions improperly im-

plied that a juror must be able to articulate a reason for

his or her decision to find a defendant not guilty and im-

permissibly conveyed the impression that a high degree

of indecision is needed in order to justify a verdict of not

guilty. After examining the challenged instruction, the

court of appeals concluded that “[t]he instruction in its

entirety fairly conveyed that the requisite doubt must be

‘based on reason’ as distinguished from fancy, whim or

conjecture,” and that “‘in the context of the instructions

as a whole and the trial record,’ there is no ‘reasonable

likelihood that the jury ... applied the challenged in-

struction in a way that violates the Constitution.’” /d.

at a58, quoting Estelle v. McGuire, 112 S. Ct. 475, 482

(1991).

ARGUMENT

1. a. Petitioner contends (Pet. 11-14) that the court of

appeals erred in holding that the search warrant at issue

in this case satisfied the Fourth Amendment’s particu-

larity requirement. According to petitioner, an other-

wise overbroad warrant cannot be cured by incorporation

of a supporting affidavit where the record does not con-

clusively establish that the affidavit was present at the

search. That claim does not warrant further review.

In order to prevent government officials from engag-

ing in “a general, exploratory rummaging in a person’s

belongings,” the Fourth Amendment requires that

search warrants contain “a ‘particular description’ of the

things to be seized.” Coolidge v. New Hampshire, 403

U.S. 443, 467 (1971). That particularity requirement

“makes general searches * * * impossible and prevents

the seizure of one thing under a warrant describing an-

other.” Stanford v. Texas, 379 U.S. 476, 485 (1965). The

court of appeals correctly sustained the district court’s

finding that the warrant in this case was sufficiently

particular.

Assuming arguendo that the warrant was overbroad

without reference to Agent Shintani’s affidavit, the war-

rant’s incorporation of that. affidavit clearly sufficed to

limit and refine the scope of the warrant. There was no

need for the affidavit physically to accompany the war-

rant because Agent Shintani, who prepared the affidavit

and obtained the warrant, was present at the search and

directed the executing agents. Pet. App. a48. There is

no contention in this case that the agents ignored the

limitations in the warrant and the accompanying affi-

davit in conducting the search (id. at a49), so there can

be no doubt that the government confined the scope of its

search within the proper parameters. Under those facts,

the warrant must be deemed sufficiently particular to

satisfy the requirements of the Fourth Amendment.

Petitioner asserts that the decision below conflicts

with decisions of numerous courts of appeals holding

that a supporting affidavit must actually “accompany” a

warrant in order to cure any facial overbreadth in the

warrant. Pet. 12-13 & nn.&8-12.° In none of the cases cited

by petitioner, however, did the court hold that a warrant

that expressly incorporated the supporting affidavit

nonetheless violated the particularity requirement.

Thus, none of those cases addresses the question at is-

sue in this case, namely, whether the facial overbreadth

of a warrant that expressly incorporates its supporting

affidavit may be cured by the affiant’s presence at, and

direction of, the search conducted pursuant to the war-

rant. Accordingly, this case does not implicate a square

conflict among the circuits.

* See United States v. Falon, 959 F.2d 1148 (1st Cir. 1992); Ap-

plication of Lafayette Academy, Inc., 610 F.2d 1 (ist Cir. 1979);

United States v. George, 975 F.2d 72 (2d Cir. 1992); United States

v. Johnson, 690 F.2d 60 (3d Cir. 1982), cert. denied, 459 U.S. 1214

(1983); Center Art Galleries-Hawaii, Inc. v. United States, 875

F.2d 747 (9th Cir. 1989); United States v. Leary, 846 F.2d 592 (10th

Cir. 1988).

b. In any event, the issue raised by petitioner does not

warrant this Court’s attention under the circumstances

of this case. Even if the court of appeals erred in uphold-

ing the validity of the warrant, Agent Shintani plainly

acted in good faith in obtaining and executing that war-

rant, and the evidence at issue was therefore admissible

by virtue of the good-faith exception to the exclusionary

rule identified in United States v. Leon, 468 U.S. 897

(1984), and Massachusetts v. Sheppard, 468 U.S. 981

(1984).

In Leon, this Court held that the exclusionary rule

“cannot be expected, and should not be applied, to deter

objectively reasonable law enforcement activity.” 468

U.S. at 919. That is particularly true, the Court noted,

“when an officer acting with objective good faith has ob-

tained a search warrant from a judge or magistrate and

acted within its scope.” Jd. at 920. The Court reasoned

that, in such circumstances, the deterrent value of the

exclusionary rule is vitiated by the fact that an officer

cannot be expected to question the magistrate’s proba-

ble-cause determination or his judgment that the form of

the search warrant is technically sufficient. /d. at 921.

In Sheppard, the Court applied the good faith excep-

tion to a search warrant that insufficiently described the

items to be seized. There, the trial judge had suppressed

evidence seized during the execution of a search warrant

that incorrectly identified the iterns to be seized as evi-

dence of a narcotics transaction, rather than a murder.

Relying on Leon, this Court reversed, emphasizing that

the officers had demonstrated their good faith by submit-

ting an affidavit to a judge and thereafter relying on the

judge’s determination that the warrant he issued was

sufficiently particularized. 468 U.S. at 989-991.

The same considerations that prompted this Court to

apply the good-faith exception in Leon and Sheppard are

also present here. Agent Shintani “took every step that

could reasonably be expected of [her].” Sheppard, 468

U.S. at 989. She prepared an extensive affidavit that de-

tailed a pervasive fraudulent scheme. She presented that

affidavit to a magistrate, who found probable cause to

justify the searches and approved the description of the

property to be seized. Moreover, as the court of appeals

noted, this case involved a complex scheme to defraud,

making it difficult to list with any greater particularity

the books and records to be seized. Pet. App. a48; see

Andresen v. Maryland, 427 U.S. 463, 480 n.10 (1976).

In addition, the fact that the affiant “was present at

the search, oversaw the warrant’s execution and guided

the participating agents in seizing documents to conform

the search to her understanding of the warrant’s re-

quirements” (Pet. App. a48) provided additional evidence

of good faith. See United States v. Luk, 859 F.2d 667, 677

(Sth Cir. 1988); United States v. Wuagneux, 683 F.2d

1343, 1351 n.6 (11th Cir. 1982), cert. denied, 464 U.S. 814

(1983). Finally, Agent Shintani and the other executing

agents demonstrated their good faith by confining the

scope of their search to the parameters of the warrant.

See United States v. Luk, 859 F.2d at 677-678.

Petitioner contends (Pet. 13-14) that the courts of ap-

peals are divided over the question whether the good-

faith exception adopted in Leon is applicable “where the

description of things to be seized is not sufficiently par-

ticular on the face of the warrant.” It is clear from Leon

itself, however, that insufficient particularity does not

automatically preclude application of the good-faith ex-

ception. Leon held that suppression is appropriate when

a search warrant is so facially deficient in failing to par-

ticularize the things to be seized that the executing offi-

cer could not reasonably presume that the warrant is

valid. 468 U.S. at 923. But Leon did not hold that the

atime

good-faith exception is inapplicable whenever a warrant

is later found to be overbroad. Instead, whether the ex-

ception will apply “depend[s] on the circumstances of the

particular case.” Ibid.

In this case, the express incorporation by reference of

the supporting affidavit into the warrant was alone suffi-

cient to justify a belief on the part of the agents that the

warrant gave them sufficient guidance as to what was to

be seized. Thus, the good-faith exception would be appli-

cable here even if the warrant were found to be unduly

general.’

None of the cases on which petitioner relies (Pet. 14

n.18) holds that the good-faith exception is automatically

inapplicable in all cases involving insufficiently particu-

lar warrants. To the contrary, in United States v.

Leary, 846 F. 2d 592 (10th Cir. 1988), the court recog-

nized that Sheppard “held that the [good-faith] exception

could also be applied to warrants that violate the fourth

amendment’s particularity requirement.” 846 F.2d at

607. The Leary court further indicated that even though

it had declared the warrant at issue to be facially invalid,

it still had to review the text of the warrant and the cir-

cumstances of the search to ascertain whether the

agents in the case might have reasonably presumed the

warrant to be valid. /d. at 607-609.

In Center Art Galleries-Hawaii, Inc. v. United States,

875 F.2d 747 (9th Cir. 1989), the court found that the affi-

davit was not expressly incorporated into the warrant

and that the warrant therefore provided “for the almost

unrestricted seizure of items which are ‘evidence of vio-

4 Indeed, it would be curious to characterize the conduct of

Agent Shintani and the other agents as reflecting bad faith where

both lower courts found that the warrant was sufficiently particu-

lar.

lations of federal criminal law’ without describing the

specific crimes suspected.” /d. at 750. In addition, the of-

ficer seeking the warrant was “aware of [the] over-

breadth problem” but failed to bring that problem to the

magistrate’s attention or seek specific assurances that

any possible defects would not invalidate the warrant.

Id. at 753. Under those circumstances, the court con-

cluded, the officer did not do “all that reasonably could be

expected of him,” and thus the good-faith exception was

inapplicable. bid. Center Art did not hold that the good-

faith exception may never be invoked in cases involving

insufficiently particular warrants. Compare United

States v. Michaelian, 803 F.2d 1042 (9th Cir. 1986)

(applying good-faith exception to reject claim that war-

rant violated particularity requirement).

Finally, in United States v. Decker, 956 F.2d 773 (8th

Cir. 1992), the judge who issued the warrant “acted as a

rubber stamp,” and the warrant “did not list the property

to be seized.” Jd. at 777.° Moreover, “the officers seized

hundreds of items unrelated to the search warrants.”

Ibid. Under those circumstances, the court of appeals

concluded that “we cannot rule that the officers behaved

in an objectively reasonable fashion.” Jbid. In addition,

the court held that the issuing judge’s conduct in acting

as a “rubber stamp” rendered the good-faith exception

inapplicable, because “the Leon good faith exception does

‘not apply in cases where the issuing magistrate wholly

abandoned his judicial role.” Jd. at 778. The court did

not purport to hold, however, that the good-faith

® Unlike the warrant at issue in this case, the Decker warrant

did not incorporate the supporting affidavit (956 F.2d at 776), and

thus the warrant contained no meaningful limitation on the gov-

ernment’s search.

exception is per se inapplicable in any case involving an

insufficiently particular warrant.

2. Petitioner contends (Pet. 14-17) that the court of

appeals erred in declining to order the district court to

conduct a full evidentiary hearing under Franks v.

Delaware, 438 U.S. 154 (1978). In Franks, the Court

held that “where the defendant makes a substantial pre-

liminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth,

was included by the affiant in the warrant affidavit, and if

the allegedly false statement is necessary to the finding

of probable cause, the Fourth Amendment requires that

a hearing be held at the defendant’s request.” 438 U.S. at

155-156.

Petitioner asserts (Pet. 14-15) that a Franks hearing

was required because Agent Shintani failed to investi-

gate the allegations set forth in her affidavit that ADM

had illegally substituted products in executing contracts

with the Army. Both courts below found, however, that

Agent Shintani’s failure to conduct such an investiga-

tion did not constitute intentional falsehood or reckless

disregard for the truth within the meaning of Franks.

Pet. App. a40, a94-a96. Thus, the courts below properly

applied the legal standard set forth in Franks; those

courts’ fact-bound determination that petitioner failed to

satisfy the applicable legal standard is not worthy of re-

view.

In any event, as the courts below properly held (Pet.

App. a40, a96), an affiant’s failure to conduct a complete

investigation before preparing an affidavit for a search

warrant does not demonstrate reckless disregard for the

truth. See United States v. Miller, 753 F.2d 1475, 1478

(9th Cir. 1985); United States v. Mastroianni, 749 F.2d

900, 909-910 (1st Cir. 1984). Indeed, as the court of ap-

peals noted, Agent Shintani’s failure to investigate the

substitution allegations “may have been entirely prudent

given the possibility of a leak back to ADM.” Pet. App.

a4). The lower courts therefore correctly found that a

Franks hearing was not required.

5. Petitioner next contends (Pet. 20) that the district

court erred by not making an express preliminary de-

termination under Federal Rule of Evidence 104 that

certain tape recorded evidence admitted at trial was reli-

able and authentic.” The court of appeals correctly re-

jected that claim (Pet. App. a36-a38), and its ruling does

not conflict with any decision of this Court or any other

court of appeals. Petitioner’s claim therefore does not

warrant review by this Court.

The language of Rule 104 does not require a district

court to make explicit findings of fact or to explain its

rationale in detail when ruling on preliminary questions

of admissibility. Instead, Rule 104 requires only that the

court decide such questions under the appropriate legal

standard. That requirement was satisfied in this case.’

* Under Rule 104(a), “[pjreliminary questions concerning

* * * the admissibility of evidence shall be determined by the

court.”

’ The proper test for determining the admissibility of tape-

recorded evidence is the one indicated by Fed. R. Evid. 901(a)—

whether the evidence was sufficient to support a finding by the

jury that the tape recordings are authentic. The standard set

forth in Rule 901(a) requires only that the court conclude that the

jury could find that the evidence is authentic. See 5 J. Weinstein

& M. Berger, Weinstein’s Evidence 4 901(a)(01), at 901-17 to 901-19

& n.8 (1993). Because authentication questions under Rule 901(a)

present issues of conditional relevance, Rule 901(a) rulings are

governed oy the standard set forth in Rule 104(b). See Rule 901

advisory committee notes. Rule 104(b) provides that a court must

admit conditionally relevant evidence if the jury could find the

condition satisfied by a preponderance of the evidence. See

Huddleston v. United States, 485 U.S. 681, 689-690 (1988).

The district court heard testimony on the admissibil-

ity of the tape recordings at issue before deciding

whether to admit them. Pet. App. a37. In particular, the

district court heard testimony in which a government

witness identified the tapes and discussed the chain of

custody and the electronic enhancement of the tapes.

Gov’t C.A. Br. 82-83. In addition, Bowers testified about

his taping of the conversations, his taping practices, and

the timing and circumstances of his delivery of the tapes

to government agents, and he testified that the tapes

constituted fair and accurate recordings of conversa-

tions to which he was a party. Id. at 83-84. The court

also engaged in a lengthy discussion with counsel about

the accuracy and reliability of the tapes, and petitioner

declined an offer for additional testimony concerning the

reliability of the tapes. Thereafter, the district court

admitted the tapes into evidence. Pet. App. a37.

The court of appeals found that “the record indicates

that the [district] court accepted the government’s prof-

fer of trustworthiness and rejected [petitioner’s] con-

cerns.” Pet. App. a36. Moreover, the court of appeals

concluded that the district court “implicitly found that

‘the possibilities of misidentification and adulteration

[were] eliminated, not absolutely, but as a matter of rea-

sonable probability.’” Jd. at a36-a37. The record plainly

supports the court of appeals’ determinations in that re-

gard, and petitioner’s claim to the contrary does not

warrant review.”

* Petitioner also asserts (Pet. 17-20) that this Court should grant

review in this case in order to determine the proper standard for

admissibility of tape-recorded evidence under the Federal Rules of

Evidence. There is no need, however, for the Court to announce

any special rule to govern the admissibility of such evidence. Tape

recordings do not present any unique problems with regard to

assessment of their authenticity, accuracy, or reliability.

20)

4. Petitioner claims (Pet. 20-24) that the government

should not be permitted to charge a defendant under gen-

eral conspiracy (18 U.S.C. 371) and wire fraud (18 U.S.C.

1343) statutes when the underlying criminal conduct

also violates the criminal tax statutes. That claim does

not warrant further review.”

It is settled law that a conspiracy to impede and impair

the functions of the IRS is punishable as a conspiracy to

defraud the United States under 18 U.S.C. 371. See, e.g.,

United States v. Sturman, 951 F.2d 1466, 1472-1474 (6th

Cir. 1991); United States v. Notch, 939 F.2d 895, 901 (10th

Cir. 1991); United States v. Chesson, 933 F.2d 298, 306-

307 (5th Cir.), cert. denied, 112 S. Ct. 583 (1991); United

States v. Shermetaro, 625 F.2d 104, 109-111 (6th Cir.

1980); United States v. Turkish, 623 F.2d 769, 771 (2d Cir.

1980), cert. denied, 449 U.S. 1077 (1981). Similarly, the

use of the mails or wires in furtherance of tax fraud con-

stitutes mail or wire fraud under 18 U.S.C. 1341 or 1343.

See, e.g., Pet. App. a49-a50; United States v. Condo, 741

Moreover, petitioner fails to point to any conflict among the cir-

cuits regarding the proper standard for the admission of tape

recordings, nor does he claim that the standard applied by the

courts below is inconsistent with any decisions of this Court.

Accordingly, there is no reason for the Court to consider the issue

at this time.

* In the court of appeals, petitioner asserted only that his con-

viction for wire fraud in violation of 18 U.S.C. 1343 could not stand

because “the criminal) provisions of the Internal Revenue Code

* * * are the exclusive means of prosecuting such alleged

frauds.” ADM C.A. Br. 25 (incorporated by reference, Pet. C.A.

Br. 1). The court of appeals rejected that assertion. Pet. App. a49-

a50. The broader arguments that petitioner seeks to raise in this

Court were not pressed or passed upon below, and are therefore

not properly presented for review by this Court. See, e.g., Zobrest

v. Catalina Foothills School Dist., 113 S. Ct. 2462, 2466 (1993);

United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977).

F.2d 238, 239 (9th Cir. 1984) (per curiam), cert. denied,

469 U.S. 1164 (1985); United States v. Miller, 545 F.2d

1204 (9th Cir. 1976), cert. denied, 430 U.S. 930 (1977).

United States v. Minarik, 875 F.2d 1186 (6th Cir.

1989), is not to the contrary. In that case, the Sixth Cir-

cuit held that defendants who had conspired to commit

only the specific statutory offense of concealing assets

in order to avoid a levy for unpaid taxes, in violation of 26

U.S.C. 7206(4), could not be convicted of conspiracy to de-

fraud the United States under 18 U.S.C. 371, but should

instead have been charged with conspiracy to violate

Section 7206(4). 875 F.2d at 1190-1196. The court ex-

plained that its interpretation of the conspiracy statute

was “the only way we can give full effect to the intention

of Congress as expressed in § 72(6(4),” id. at 1194, and

that “where the duties of a citizen are as technical and

difficult to discern as they are when a taxpayer, before

levy, engages in otherwise legitimate activities that may

make ultimate collection more difficult, * * * a Con-

gressional statute closely defining those duties takes a

conspiracy to avoid them out of the defraud clause and

places it in the offense clause” of 18 U.S.C. 371. 875 F.2d

at 1196.

The Sixth Circuit’s rationale in Minarik is inapplica-

ble in this case. Petitioners were not charged with a vio-

lation of 26 U.S.C. 7206(4), and the conspiracy alleged in

the indictment was considerably broader than an agree-

ment to violate one particular provision of the Internal

Revenue Code. Petitioners used a variety of different

methods to defraud the IRS, including the filing of false

tax returns and the creation of shell corporations and

false accounting records. As the Sixth Circuit itself has

made clear, Minarik announced only “a limited rule to

remedy the particular concerns raised by the facts of

that case” and does not apply in cases where “the con-

spiracy implicated a variety of statutes.” United States

v. Mohney, 949 F.2d 899, 903, 905 (6th Cir. 1991); see

United States v. Sturman, 951 F.2d 1466, 1473 & n.1 (6th

Cir. 1991) (distinguishing Minarik because “(t]he con-

spiracy alleged and proven here was broader than a viola-

tion of a specific statute,” and noting that other Sixth

Circuit decisions “lend support to limiting Minarik to

its facts”). Thus, whatever the validity of Minarik in

the unique circumstances of that case, it has no applica-

tion here. Cf. United States v. Notch, 939 F.2d at 901."

5. Relying on Cage v. Louisiana, 498 U.S. 39 (1990),

petitioner contends (Pet. 24-25) that the district court’s

instruction defining “reasonable doubt” was unconstitu-

tional. As the court of appeals found (Pet. App. a57-a58),

however, the instruction at issue in this case did not in-

clude the elements found impermissible in Cage. The

Cage instruction “equated a reasonable doubt with a

‘grave uncertainty’ and an“‘actual substantial doubt,’ and

stated that what was required [for conviction] was a

‘moral certainty’ that the defendant was guilty.” 498

U.S. at 41. There was no similar language in the in-

struction at issue here, which provided:

ii) whether the district court properly instructed the jury on

conspiracy to defraud the United States and whether the court

erred in refusing to define “deductible expense[s]” or instruct the

jury that truth is a defense under 18 U.S.C. 1001. The petition

contains no argument addressed to those contentions, however,

which were considered and rejected by the court of appeals. Pet. _

App. a53-a57. Petitioner does not argue that the court of appeals’

resolution of those issues was incorrect or that its decision conflicts

with any decision of this Court or of any other court of appeals.

Accordingly, there is no reason for this Court to review those

questions.

Reasonable doubt, as that name implies, is a doubt

based on reason, it is a doubt for which you can give a

reason. It is such a doubt as would cause a juror, af-

ter careful and candid and impartial consideration of

all the evidence, to be so undecided that he cannot Say

that he has an abiding conviction of the defendant’s

guilt. It is such a doubt as would cause a reasonable

person to hesitate or to pause in the graver or more

important transactions of life. However, it is not a

fanciful doubt, nor a whimsical doubt, nor a doubt

based on conjecture. It is a doubt that is based on

reason. The government is not required to establish

guilt beyond all doubt or to a mathematical certainty

or to a scientific certainty. The government’s bur-

den is to establish guilt beyond a reasonable doubt."

Pet. App. a57 (emphasis omitted).

That instruction did not in any way “suggest a higher

degree of doubt than is required for acquittal under the

reasonable doubt standard.” 498 U.S. at 41. As the court

of appeals noted, the instruction properly “conveyed that

the requisite doubt must be ‘based on reason’ as distin-

guished from fancy, whim or conjecture.” Pet. App. a58.

Thus, the court of appeals correctly rejected petitioner’s

argument that the instruction was unconstitutional, and

in any event the court’s application of the principles set

forth in Cage to the particular instruction at issue in

this case is not worthy of review.”

'! That instruction is substantially the same as standard jury

instruction 2.09 of the Criminal Jury Instructions for the District

of Columbia (3d ed. 1978). Pet. App. a57 n.53.

'2 There is no need to hold the petition in this case pending the

Court’s resolution of Victor v. Nebraska, No. 92-8894, and

Sandoval v. California, No. 92-9049. In Victor, the petitioner chal-

lenges (92-8894 Pet. 33-39) an instruction that equated reasonable

- 6. Petitioner asserts (Pet. 25) that the district court

failed to comply with Application Note 5 to Sentencing

Guidelines § 1B1.2 in sentencing petitioner on the con-

spiracy count. According to petitioner, the district

court failed to make the requisite finding beyond a rea-

sonable doubt that petitioner was responsible for each ob-

ject of the conspiracy. That contention does not merit

further review.

Under Guidelines § 1B1.2(d), when a defendant is con-

victed “on a count charging a conspiracy to commit more

than one offense,” the sentencing range applicable to the

conspiracy conviction is computed “as if the defendant

had been convicted on a separate count of conspiracy for

each offense that the defendant conspired to commit.”

Application Note 5 to that provision states in part:

Particular care must be taken in applying subsection

(d) because there are cases in which the jury’s ver-

dict does not establish which offense(s) was the ob-

ject of the conspiracy. In such cases, subsection (d)

should only be applied with respect to an object of-

fense alleged in the conspiracy count if the court,

were it sitting as a trier of fact, would convict the de-

fendant of conspiring to commit that object offense.

The court of appeals concluded that “[t]he record * * *

indicates that the district court did make the required

determination of the object of the conspiracy.” Pet. App.

a61. The court observed that the district court expressly

doubt with “substantial doubt.” In Sandoval, the petitioner claims

(92-9049 Pet. 8-11) that the inclusion of the phrases “moral cer-

tainty” and “moral evidence” rendered the reasonable doubt in-

struction constitutionally deficient. The instruction in this case

contained none of the phrases at issue in Sandoval and Victor, and

thus the disposition of those cases will not undermine the correct-

ness of the court of appeals’ decision here.

a a an

found that the relevant base offense level for petitioner’s

conspiracy conviction was that applicable to “conspiracy

with an attempt to avoid taxes or tax evasion, rather

than one based on false statements.” Jhbid. Moreover, the

district court expressly adopted the findings of the pre-

sentence report that “liln this conspiracy, [petitioner]

attempted to evade both personal and corporate taxes.”

Ibid. Finally, the court of appeals relied on the fact that

the jury also convicted petitioner and his co-conspirator

of attempting to evade taxes, thus demonstrating beyond

a reasonable doubt that petitioner and his co-conspirator

committed the underlying substantive offense. Jd. at

a61-a62. Under these circumstances, the court of ap-

peals was correct in concluding that the district court

made the requisite finding.

7. Finally, petitioner contends (Pet. 25-26) that the

district court’s application of the Guidelines to the con-

spiracy count of the indictment violated the Double Jeop-

ardy Clause. Petitioner failed to raise that contention in

the court of appeals, however, and that court did not ad-

dress it. Accordingly, this Court should not consider the

claim in the first instance. Zobrest v. Catalina Foothills

School Dist., 113 S. Ct. at 2466; United States v. Lovasco,

431 U.S. at 788 n.7.

In any event, petitioner’s contention is without merit.

The Double Jeopardy Clause does not forbid imposition of

one sentence for conspiracy and a different sentence for

the underlying substantive offense, because conspiracy

and substantive crimes are separate and distinct offenses

for double jeopardy purposes. See, e.g., United States v.

Felix, 112 S. Ct. 1877, 1384 (1992). Thus, there is no pos-

sible basis for challenging as violative of the Double

Jeopardy Clause the district court’s decision to sentence

petitioner under pre-Guidelines law with respect to his

pre-Guidelines conduct while at the same time sentenc-

ing petitioner under the Guidelines for his conspiracy

conviction, which was based in part on post-Guidelines

conduct.'® Petitioner’s claim to the contrary does not

merit review.

Petitioner also appears to assert (Pet. 26) that applica-

tion of the Guidelines to the conspiracy conviction vio-

lated the Ex Post Facto Clause because some of the con-

duct supporting the conspiracy conviction took place

prior to the November 1, 1987, effective date of the Guide-

lines. Petitioner did not raise that claim in the court of

appeals. In any event, it is well settled that the Ex Post

Facto Clause is not implicated where an offense, though

3 United States v. Niven, 952 F.2d 289 (9th Cir. 1991), is not to

the contrary. In that case, the defendant was convicted on mul-

tiple counts of mail and wire fraud, only some of which involved

conduct occurring after the effective date of the Sentencing

Guidelines. In determining the applicable Guidelines sentencing

range, the district court took into account the entire loss suffered

by the defendant’s victims as a result of all of the defendant’s sub-

stantive offenses, including those committed prior to the effective

date of the Guidelines. /d. at 293. In order to avoid what it

viewed as a potential violation of the Double Jeopardy Clause, the

court of appeals construed the Guidelines to require the district

court either to determine the Guidelines sentence based solely on

post-Guidelines conduct or to impose concurrent sentences for the

pre-Guidelines and post-Guidelines offenses. Jd. at 293-294.

In this case, petitioner received concurrent sentences for the

post-Guidelines conspiracy conviction and the pre-Guidelines sub-

stantive offenses. Thus, the sentence imposed is entirely consistent

with Niven. In any event, Niven has no application in this case, be-

cause here, unlike in Niven, the district court did not base peti-

tioner’s Guidelines sentence on pre-Guidelines conduct that was

not itself a part of the post-Guidelines crime. Petitioner’s conspir-

acy conviction was based on both pre-Guidelines and post-Guide-

lines conduct, and petitioner cites no authority for the proposition

that the Double Jeopardy Clause precludes imposition of a sentence

for conspiracy based on the conduct giving rise to the conviction.

—————aEeEee—eEeE—E

begun before the effective date of the challenged criminal

statute, continues thereafter. See, e.g., United States v.

Torres, 901 F.2d 205, 226-227 (2d Cir.), cert. denied, 498

U.S. 906 (1990); United States v. Kramer, 955 F.2d 479,

485 (7th Cir.), cert. denied, 113 S. Ct. 595 (1992); United

States v. Giry, 818 F.2d 120, 135 (1st Cir.), cert. denied,

484 U.S. 855 (1987); United States v. Campanale, 518

F.2d 352, 365 (9th Cir. 1975), cert. denied, 423 U.S. 1050

(1976). Petitioner does not dispute that the conspiracy in

this case continued after the effective date of the Guide-

lines.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREWS. DAYS. III