Opposition Brief — Blake v. United States

In the Supreme Court of the Ginited States

OCTOBER TERM, 1992

PETER BLAKE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

aa | ;

ae KENNETH W. STARR

ROBERT S. MUELLER, III

sie J | THOMAS. M. GANNON

= ? 5 4 rn y

+ GES

QUESTIONS PRESENTED

|

1. Whether extrinsic evidence of petitioner’s partici-

pation in a drug transaction should have been excluded

under Rules 404(b) and 608(b), Fed. R. Evid.

2. Whether the prosecutor’s cross-examination of pe-

titioner about killings in Jamaica was harmless error.

(I)

TABLE OF CONTENTS

ee gE ETO ol RE TONE

TS NOES EES 2 ota eae

TABLE OF AUTHORITIES

Cases:

United States v. Beechum, 582 F.2d 898 (5th Cir. 1978),

cert. denied, 440 U.S. 920 (1979) voocceccccccccccccesecceceececeee..

United States v. Bosley, 615 F.2d 1274 (9th Cir. 1980) ..

United States v. Cardenas, 895 F.2d 1338 (llth Cir.

MN MssmntLdhs ladihcasabaptietbutniatdaakimsrntatadeccaccinecsssvacec, cee...

United States v. Drummond, 903 F.2d 1171 (8th Cir.

1990), cert. denied, 111 S. Ct. 759 (1991) .................

United States v. Farias-Farias, 925 F.2d 805 (5th Cir.

NRA di states aeatech tak ui Aspladebnsoniesessiccexnecbseveoncccacs.c. cc

United States v. Garcia, 900 F.2d 571 (2d Cir.), cert.

Genied, 111 &. Ct. 160 (1900) ....,...............................

United States v. Neuroth, 809 F.2d 339 (6th Cir.), cert.

A : :

United States v. Opager, 589 F.2d 799 (5th Cir. 1979) ...

United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985),

cert. denied, 475 U.S. 1098 (1986) .............. Sharbiaadanaks

United States v. Rodriguez, 573 F.2d 330 (5th Cir.

NIN MMiMiabth da ealaacucdinbibdyasnanevinaaksiewssadnindchisassnedscrecein<odscecs..,

United States v. Smith Grading & Paving, Inc., 760 F.2d

527 (4th Cir.), cert. denied, 474 U.S. 1005 (1985) ..........

United States v. Urbanik, 801 F.2d 692 (4th Cir. 1986) ...

United States v. Tarantino, 846 F.2d 1384 (D.C. Cir.),

cert. denied, 488 U.S. 867 (1988) ...cccccccccccccccccceccecs-..

Statutes and rules:

co RAS SERA ae

9

IV

Statutes and rules—Continued: Page

ae Rn arn INTEND - Lani cicsincscccantusuuuentincsaccedaacdseanaminesiiewaaaaseon 2

BR Reg |) PARROTS SRa es Na oN SON Oe OIA RR el 2,5

Fe ER EDD aid sacoiderscticcnatundceckonmanstacatdesbunlieuabiees 2

BF oe |, ARTE RSPR ees opm an ERR VE Oy WENO UEA? ARETE 2

Fed. R. Evid.:

I aac a a OL 5

EER, A RAE EN ones Ate MRE ee te 7

Rule 404(b) ...... hin de icsagiaiadabtaiaacetidamia adbinieduaiabiacasteadciacioes 4,5, 6

FAI Agate teee LORENA IRA re SPE Lek RWI E ne 45,7

Advisory Committee Note, 28 U.S.C. at 758 ............. 7

Miscellaneous:

3 D. Louisell & C. Mueller, Federal Evidence (1979 &

EINE, > SIDI \cessvistesennedechuncansidadnaumiechachepeaictanbemeumenanaeds 8

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

CRUD (inssinsenidichalsciniieh:cdetacinnngheceiaaaateoitaiblasbosieeamanakgias ania chintelds 8

In the Supreme Court of the Gnited States

OCTOBER TERM, 1992

No. 92-302

PETER BLAKE, PETITIONER

U. <

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1-A24,

B1-B13)' is reported at 941 F.2d 334.

JURISDICTION

The judgment of the court of appeals was entered on

August 28, 1991. A petition for rehearing was denied on

October 10, 1991. Pet. App. Cl. The petition for a writ

of certiorari was filed on January 8, 1992. The jurisdic-

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

! The majority and dissenting opinions in the court of appeals

are separately numbered in the appendix to the petition. For the

convenience of the Court, we shall refer to the majority opinion _as

“Pet. App. A” and to the dissenting opinion as “Pet. App. B.”

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Texas, petitioner was

convicted of using false identification to acquire a

firearm, in violation of 18 U.S.C. 922(a)(6) (Count 1); pos-

sessing firearms while an illegal alien, in violation of 18

U.S.C. 922(g)(5) (Counts 2 and 7); possessing more than

50 grams of cocaine base with the intent to distribute it,

in violation of 21 U.S.C. 841(a)(1) (Count 3); possessing

an unregistered firearm, in violation of 26 U.S.C. 5861(d)

(Count 4); and using a firearm in relation to a drug traf-

ficking crime, in violation of 18 U.S.C. 924(c)(1) (Counts

5 and 6). The district court sentenced him to a total of

608 months’ imprisonment, to be followed by a five-year

period of supervised release. The court of appeals af-

firmed. Pet. App. Al-A24.

1. On March 25, 1989, petitioner purchased two

firearms from a dealer at a trade show in Dallas, Texas.

He completed the necessary firearms transaction forms

using the false name “Winston Wilson.” That purchase

prompted a police investigation. On April 12, 1990, police

officers arrested petitioner after a high speed automobile

chase. While in custody after his arrest, petitioner

spoke freely to police officers and confessed to numerous

criminal offenses. Pet. App. Al-A2; Gov’t C.A. Br. 3-4.

Among other things, petitioner told the officers his

real name, admitted that he was an illegal alien, and said

that he had lost $100,000 in a recent drug deal.

Petitioner consented in writing to searches of the car

involved in the chase and of two apartments. He also re-

vealed the location of a key to one of the apartments, de-

scribed the cache of weapons and ammunition he kept

there, and disclosed a secret hiding place in the apart-

ment where he had stashed cocaine base, a gun, and

3

money. Officers searched the apartment and found the

weapons, ammunition, drugs, and money petitioner had

described. Pet. App. A2-A3; Gov’t C.A. Br. 4-5.

2. At trial, three police officers testified that peti-

tioner had confessed to the conduct charged in the in-

dictment and had told them about the apartment where

the weapons, ammunition, drugs, and money were found.

Pet. App. A6. Petitioner testified in his own defense.

He denied telling the police about the apartment and, in

response to the prosecutor’s questions on cross-exami-

nation, he denied any involvement in drug trafficking.

See id. at A8, All. The prosecutor also asked petitioner

whether he had ever killed anyone. Petitioner’s counsel

objected, and the district court held a bench conference

at which the prosecutor represented that if the police

were recalled, they would testify that petitioner had told

them that he had murdered ten people in Jamaica. /d. at

A1l1-A13. On the basis of that representation, the dis-

trict court allowed the inquiry. Petitioner denied mak-

ing the statement, and the government did not call any

witnesses to rebut petitioner’s denial. Jd. at A13. See

Gov’t C.A. Br. 10-11. In its rebuttal case, the govern-

ment introduced evidence that petitioner had been

present at a drug transaction between an undercover

officer and another individual, Kenneth Burke. Pet.

App. A6.

2 The evidence showed that in early April 1990, a Dallas police

officer engaged in undercover negotiations to sell two kilograms of

cocaine to two persons. The officer gave one of the persons, Ken-

neth Burke, cocaine in exchange for $52,000. Petitioner, the sec-

ond person, was standing a few feet away at the time of the sale,

watching the transaction. After the exchange, the police appre-

hended Burke, but petitioner escaped. Pet. App. A2; Gov’t C.A.

Br. 3.

4

3. A divided court of appeals affirmed petitioner’s con-

viction. Pet. App. A1-A24. The court rejected peti-

tioner’s claim that Rules 404(b) and 608(b) of the Federal

Rules of Evidence prohibited the prosecutor from intro-

ducing evidence of the Burke drug transaction in the

government’s rebuttal case. The court of appeals deter-

mined that the district court properly admitted the evi-

dence, because it was relevant for a purpose other than

demonstrating petitioner’s character in order to show

action in conformity therewith, Fed. R. Evid. 404(b), or

attacking petitioner’s general credibility, Fed. R. Evid.

608(b). As the court explained, the Burke transaction

was relevant because petitioner was charged with using

a firearm to facilitate drug transactions, he had admitted

to the police officers that he was involved in drug traf-

ficking, and his denial of drug trafficking at trial placed

that matter at issue during the government’s rebuttal.

Pet. App. A6-A11.

The court also rejected petitioner’s contention that

the prosecutor’s effort to impeach petitioner with two

questions about killings in Jamaica required reversal of

petitioner’s conviction. Pet. App. A1l1-A20. The court

found that although the questions were unfairly prejudi-

cial and it was error to allow them, the error was harm-

less. Id. at A15-A20. The court determined that the evi-

dence against petitioner was overwhelming, that no rea-

sonable juror could have concluded that petitioner was a

credible witness, and that the erroneously allowed ques-

tions did not affect any substantial right of petitioner’s.

Id. at A19-A20.°

3 The court of appeals also rejected petitioner’s arguments that

the district court erred when it did not sever certain counts of the

indictment, that a mistrial should have been declared when a gov-

ernment witness stated that he worked for the “Jamaican Task

5

Judge Goldberg dissented. Pet. App. B1-B13. He con-

cluded that petitioner’s participation in the Burke trans-

action was collateral to the issues at trial and that peti-

tioner’s denial of involvement in drug trafficking, which

the government elicited on cross-examination, did not

convert petitioner’s participation in the Burke transac-

tion into a material issue. See id. at B3, B7, B9-B11.

Judge Goldberg stated that he would have remanded the

case for a new trial, because the erroneous admission of

the extrinsic rebuttal evidence, coupled with the

“inflammatory” questions about killings in Jamaica,

“cannot be deemed harmless.” Jd. at B12.

ARGUMENT

1. Petitioner contends (Pet. 5-9) that the court of ap-

peals erred in affirming the district court’s admission of

evidence that petitioner had participated in the Burke

urug transaction. That evidence was relevant to the is-

_ sues at trial, and neither Rule 404(b) nor Rule 608(b)

prohibited its admission.

The Federal Rules of Evidence provide as a general

matter that all relevant evidence is admissible. See Fed.

R. Evid. 401-402. In this case, petitioner was charged

with various offenses, including use of a firearm in rela-

tion to a drug trafficking crime. See 18 U.S.C. 924(c)(1).

To prove that charge, the government called three police

officers, who testified that petitioner had admitted in-

volvement in drug trafficking and had directed the offi-

cers to an apartment where they found drugs, weapons,

and money. Testifying in his own behalf, petitioner dis-

Force” of the “Organized Crime Drug Enforcement Task Force,”

and that the evidence at trial was insufficient to support his con-

viction on three of the counts in the indictment. Pet. App. A5-

A6, A20-A21, A21-A24.

6

puted the police officers’ testimony and stated that he

was not involved in drug trafficking. To rebut peti-

tioner’s testimony, the prosecutor properly introduced

evidence of petitioner’s involvement in the Burke drug

transaction.

The evidence was relevant, because it nad a tendency

to make more probable a fact in issue at trial: whether

petitioner was involved in drug trafficking. As the court

of appeals explained, when petitioner denied an earlier

admission to the police that he engaged in drug traffick-

ing, he placed in issue the veracity of the officers’ testi-

mony about petitioner’s admission. The government was

entitled to present evidence showing petitioner’s pres-

ence at the Burke drug transaction to corroborate the

police officers’ testimony and to establish petitioner’s

involvement in drug trafficking. Pet. App. A8. The gov-

ernment’s evidence concerning the Burke drug transac-

tion was particularly probative, because the evidence es-

tablishing petitioner’s presence at that transaction was

consistent with the police officers’ testimony that peti-

tioner had related losing a substantial amount of money

in drug trafficking. See Gov’t C.A. Br. 4.

Petitioner is mistaken in suggesting (Pet. 8-9) that

Rule 404(b) prohibited the admission of evidence con-

cerning the Burke drug transaction. Rule 404(b) forbids

the use of extrinsic act evidence “to prove the character

of a person in order to show action in conformity

therewith.” Fed. R. Evid. 404(b). The Rule does not

prohibit the use of extrinsic act evidence for other

purposes. In this case, the prosecutor introduced ev-

idence of petitioner’s involvement in the Burke trans-

action for the proper purpose of corroborating prior

testimony that petitioner disputed, and not to show that

petitioner had a bad character and therefore probably

7

committed the charged crimes. See Pet. App. A10-A11;

see also United States v. Smith Grading & Paving, Inc.,

760 F.2d 527, 531 (4th Cir.), cert. denied, 474 U.S. 1005

(1985).*

Petitioner is also mistaken in suggesting (Pet. 5-7)

that Rule 608(b) prohibited admission of evidence show-

ing petitioner’s involvement in the Burke drug transac-

tion. Rule 608(b) generally prohibits the use of evidence

of specific instances of a witness’s conduct “for the pur-

pose of attacking or supporting the witness’ credibility.”

Fed. R. Evid. 608(b). That prohibition, however, is lim-

ited to attacks on the witness’s general “character” for

veracity. See Fed. R. Evid. 608(b) Advisory Committee

Note, 28 U.S.C. at 758. As the court of appeals explained:

The application of Rule 608(b) to exclude extrinsic

evidence of a-witness’s conduct is limited to in-

stances where the evidence is introduced to show a

witness’s general character for truthfulness.

United States v. Opager, 589 F.2d 799, 801 (5th Cir. 1979).

Rule 608(b) is “inapplicable in determining the admissi-

bility of relevant evidence introduced to contradict a

witness’s testimony as to a material issue. So long as

otherwise competent, such evidence is admissible.” 589

F.2d at 802. Thus, Rule 608(b) has no application here,

where the government’s extrinsic act evidence served as

direct proof of a material fact at issue—petitioner’s in-

volvement in drug trafficking. Accord United States v.

4 Observing that the evidence was highly probative and cor-

roborated matters already in evidence, the court of appeals cor-

rectly determined that Rule 403, Fed. R. Evid., would not provide

a basis for excluding the evidence. Pet. App. A10-A11; see, e.g.,

United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en

banc), cert. denied, 440 U.S. 920 (1979).

8

Cardenas, 895 F.2d 1338, 1345-1346 (11th Cir. 1990)

(evidence of prior drug activity by defendant admissible

to contradict his testimony of noninvolvement with

drugs).”

2. Petitioner contends (Pet. 10-11) that the prosecu-

tor’s inquiry whether petitioner had killed persons in

Jamaica warranted reversal. The court of appeals prop-

erly concluded, however, that the prosecutor’s inquiry

was harmless error. Pet. App. A15-A20. As that court

explained, the evidence of petitioner’s guilt on the

charged offenses was “overwhelming.” Jd. at A19. Peti-

tioner had freely admitted his guilt to police officers in

post-arrest statements, and he directed the officers to an

apartment where they found incriminating evidence. See

id. at A2-A3, A6, A19. To contradict the police officers’

statements and the physical evidence, petitioner relied

on his own testimony. As the court of appeals explained,

5 See also United States v. Farias-Farias, 925 F.2d 805, 809-810

(5th Cir. 1991); United States v. Garcia, 900 F.2d 571, 575 (2d

Cir.), cert. denied, 111 S. Ct. 169 (1990); United States v. Qaoud, ~

777 F.2d 1105, 1112 (6th Cir. 1985), cert. denied, 475 U.S. 1098

(1986); see generally 3 D. Louisell & C. Mueller, Federal Evidence §

307 (1979 & Supp. 1992); 3 J. Weinstein & M. Berger, Weinstein’s

Evidence { 608[05] (1992). Petitioner argues (Pet. 6-7) that extrin-

sic act evidence can never be used to impeach a defendant’s state-

ments on cross-examination, citing United States v. Tarantino, 846

F.2d 1384, 1409 n.8 (D.C. Cir.), cert. denied, 288 U.S. 867 (1988),

~and United States v. Bosley, 615 F.2d 1274, 1276-1277 (9th Cir.

1980). But even if those cases supported that dubious proposition,

they would be of no aid to petitioner. The government was enti-

tled to use evidence of petitioner’s presence at the Burke drug

transaction as direct proof of a material fact at issue—whether pe-

titioner engaged in drug trafficking.

9

petitioner’s own words thoroughly undermined his relia-

bility as a witness. Jd. at A17-A18.°

The court of appeals correctly concluded that no rea-

sonable jury could have accepted petitioner’s defense,

that the objectionable questions did not affect the ver-

dict, and that the prosecutor’s improper inquiry accord-

ingly was harmless error. See, e.g., United States v.

Drummond, 903 F.2d 1171, 1174 (8th Cir. 1990), cert. de-

nied, 111 S. Ct. 759 (1991); United States v. Neuroth, 809

F.2d 339, 342 (6th Cir.), cert. denied, 482 U.S. 916 (1987);

United States v. Urbanik, 801 F.2d 692, 698 (4th Cir.

1986); United States v. Rodriguez, 573 F.2d 330, 333 (5th

Cir. 1978).

6 For example, petitioner admitted that he routinely used sev-

eral aliases and employed false names and other misinformation to

enter the United States illegally and to obtain driver’s licenses un-

lawfully. He said that he had no knowledge of guns, but admitted

that he had purchased two firearms on March 25, 1989. Petitioner

claimed that when he bought the weapons he did not see the state-

ment on the transaction form requiring truthful answers. He tes-

tified on cross-examination that, when purchasing a handgun, he

thought he could permissibly use a false name, specify a false

birthplace, and deny his status as an illegal alien. He said that he

did not like guns and claimed that the name “Bullet,” which was

stenciled on his leather jacket, was not his nickname, yet he did not

know either why or when the name was stenciled on his jacket. He

explained his possession of $1,000 in cash at the time of his arrest as

a payment he had received for finishing body work on a car, but he

could not remember the owner of the car, its make, or where he

had done the work. Pet. App. A17-A18.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

7 KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

THOMAS M. GANNON

Attorney

OCTOBER 1992