Opposition Brief — Smith v. United States

No. 92-631

In the Supreme Court of the Anited States

OCTOBER TERM, 1992

JAMES EDWARD SMITH ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

THOMAS E.. BOOTH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the Double Jeopardy Clause was violated

when the government introduced evidence at trial under

Fed. R. Evid. 404(b) concerning petitioner James Smith’s

participation in a prior drug conspiracy, for which he had

previously been convicted.

2. Whether the district court properly admitted ev-

idence of petitioner James Smith’s prior drug trafficking

activities.

3. Whether the district court erred in not submitting

the issue of the voluntariness of petitioner Richard

Smith’s confession to the jury.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Brown v. Ohio, 482 U.S. 161 (1977) ................ccccccocccecceeee

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

Garrett v. United States, 471 U.S. 773 (1985) ...............0.

Grady v. Corbin, 495 U.S. 508 (1990) ...............cesecceseeeeeees

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

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

United States v. Allen, 798 F.2d 985 (7th Cir. 1986) ........

United States v. Dansker, 5387 F.2d 40 (8d Cir. 1976),

cert. denied, 429 U.S. 1038 (1977) ...............cccsseccesseeceees

United States v. Felix, 112 S. Ct. 1877 (1992) ..................

United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980) ...

United States v. Grassi, 602 F.2d 1192 (5th Cir. 1979),

I FE GI, WHEE CIID chncccocecsaxccscncnsonssnancccoversnsnes

United States v. Groce, 682 F.2d 1359 (11th Cir. 1982) ....

United States v. Haynes, 881 F.2d 586 (8th Cir. 1989) ....

United States v. Legendre, 657 F.2d 238 (8th Cir.), cert.

denied, 454 U.S. 1087 (1981) ........ aisanessutaanieidinnkenmaninkes

United States v. Rawle, 845 F.2d 1244 (4th Cir. 1988) .....

United States v. Sebetich, 776 F.2d 412 (3d Cir. 1985),

cert. denied, 484 U.S. 1017 (1988) ........................cceceeee.

United States v. Smith, 759 F. Supp. 304 (E.D. Va.

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United States v. Wagoner, 713 F.2d 1371 (8th Cir. 1983)..

(IIT)

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IV

Cases—Continued: Page

United States v. Williams, 577 F.2d 188 (2d Cir.), cert.

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Constitution, statutes and rules:

U.S. Const. Amend. V (Double Jeopardy Clause) ............ 5

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Fed. R. Evid.:

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In the Supreme Court of the Gmted States

OCTOBER TERM, 1992

No. 92-631

JAMES EDWARD SMITH ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-10),

is unpublished, but its judgment is noted at 966 F.2d

1446 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

June 10, 1992. On August 25, 1992, Chief Justice

Rehnquist extended the time within which to file a

petition for a writ of certiorari until October 8, 1992,

and the petition was filed on that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1). -

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Virginia, petition-

ers were convicted of interstate travel to promote

drug trafficking, in violation of 18 U.S.C. 1952(a);

possession of heroin with intent to distribute it, in

violation of 21 U.S.C. 841(a)(1); and use of a telephone

to facilitate drug trafficking, in violation of 21 U.S.C.

843(b). Petitioner James Smith (James) was also

convicted of being a felon in possession of a firearm, in

violation of 18 U.S.C. 922(g), and distribution of

heroin, in violation of 21 U.S.C. 841fa)(1). Petitioner

Richard Smith (Richard) was also convicted of

conspiring to distribute heroin, in violation of 21

U.S.C. 846, and distribution of cocaine and heroin, in

violation of 21 U.S.C. 841(a)(1). James was sentenced

to a total of 384 months’ imprisonment, ten years’

supervised release, and a $575,000 fine. Richard was

sentenced to 121 months’ imprisonment and five

years’ supervised release. The court of appeals af-

firmed. Pet. App. 1-10.

1. James operated a drug trafficking organization

in the District of Columbia and Virginia. On Febru-

ary 6, 1988, he was arrested for drug trafficking and

jailed in Alexandria, Virginia. While in jail, James

directed Richard, Reginald Smith, Excel Alexander,

and others to remove drugs, drug paraphernalia,

weapons, and money from James’s safe houses in the

District of Columbia. The drugs and the firearms

were subsequently stored in commercial warehouses

in Richmond, Virginia. Gov’t C.A. Br. 3.

Reginald Smith distributed heroin to Richard for

resale, but the heroin did not sell because it was of

3

poor quality. As a result, Richard became deeply

indebted to Reginald. In 1988, James, then incarcer-

ated in the federal prison in Petersburg, Virginia,

directed an accomplice to deliver additional heroin to

Reginald Smith for resale. In 1989, Richard pur-

chased cocaine from a new dealer. Thereafter, he

distributed heroin and cocaine to some friends. In the

fall of 1989, federal agents seized heroin, cocaine,

other drugs, and firearms from a commercial ware-

house controlled by Reginald Smith. Later, Richard

admitted to law enforcement agents that he had sold

cocaine and heroin. Gov’t. C.A. Br. 4-5.

2. In March 1988, James pleaded guilty in the U.S.

District Court for the District of Columbia to the

charge of conspiring to distribute narcotics between

1979 and 1988. The instant indictment initially

charged both James and Richard with conspiring to

distribute heroin, but the district court dismissed

that charge as to James on double jeopardy grounds.

United States v. Smith, 759 F. Supp. 304 (E.D. Va.

1991). At trial, the district court permitted the

government to present evidence of James’s drug

trafficking activities during the period covered by the

District of Columbia conspiracy charge. First, Excel

Alexander, who testified that James had directed him

to remove incriminating evidence from James’s safe

house following James’s arrest, also testified that he

had sold drugs for James since the 1960s and the

1970s. Second, Alexander and witness Reginald Smith

testified that Richard had belonged to James’s drug

organization during the middle 1980s. Third, Detect-

ive Barbara Lyles testified that in 1985, James told

her that he no longer stored drugs where he lived

4

because a police raid on one of his apartments had

narrowly missed discovering drugs that were stored

there. James also told her that he normally diluted

his heroin.’ The district court gave a limiting

instruction to the jury with respect to the similar

acts evidence that was admitted into evidence.? Gov’t

C.A. Br. 6-7.

3. The court of appeals affirmed. First, the court

held that the admission of similar acts evidence

against James did not violate the double jeopardy ban

against a second prosecution for the same offense.

The court explained that the use of James’s prior

drug crimes as evidence against him was not the same

as prosecuting him for those prior acts. Pet. App. 3-4.

It also held that the district court properly admitted

petitioners’ prior drug trafficking activities to show

motive, intent, and common scheme or plan and that

the trial court’s limiting instruction kept that

evidence confined to its proper bounds. Pet. App. 4-5.

The court held that the district court properly did not

instruct the jury on the voluntariness of Richard’s

confession because Richard did not raise the vol-

untariness issue before the jury.’

1 There was also testimony from Reginald Smith, Charles

Smith, Devoyce Caviness, and DEA Agent Veronica Baker

regarding James’s prior drug trafficking activities. The

district court, however, instructed the jury to disregard that

evidence as to James Smith. C.A. App. 240-241.

2 The court instructed “that these defendants are not on

trial for any prior crimes or other misconduct that may have

come out into evidence.” C.A. App. 237-238.

3 The court of appeals also rejected James’s claims that he

was improperly denied a severance (Pet. App. 5) and that the

government improperly used his immunized testimony at trial

D

ARGUMENT

1. James Smith contends (Pet. 14-21) that the

admission into evidence of his drug trafficking

activities while participating in the conspiracy of

which he had earlier been convicted violated the

Double Jeopardy Clause. He relies on Grady v.

Corbin, 495 U.S. 508 (1990), in which this Court held

that the Double Jeopardy Clause bars a second

prosecution if “to establish an essential element of an

offense charged in that prosecution, the government

will prove conduct that constitutes an offense for

which the defendant has already been prosecuted.” Jd.

at 510.

In United States v. Felix, 112 S. Ct. 1877, 1385

(1992), this Court reaffirmed “the established doc-

trine that a conspiracy to commit a crime is a

separate offense from the crime itself,” and that an

individual may accordingly be prosecuted separately

for a conspiracy and for substantive offenses that are

named as overt acts committed in furtherance of that

conspiracy. Thus, even if the specific acts for which

James was prosecuted in this case had been named as

overt acts in the conspiracy information to which he

pleaded guilty, separate prosecution for those acts

would not have been barred. Since the specific acts

for which James was prosecuted in this case were not

named as overt acts in the conspiracy information to

which he previously pleaded guilty, the result in this

(Pet. App. 6-7); Richard’s claim that his confession was in-

voluntary (Pet. App. 7-8); and petitioners’ joint claim (Pet.

App. 9-10) that the district court’s final instructions were

incorrect in several respects. Petitioners have not renewed

those claims before this Court.

6

case follows a fortiori from Felix. Indeed, two of the

five counts of which he was convicted involved acts

that did not occur until April and May 1989, more than

one year after his March 16, 1988, guilty plea. See

Pet. App. 42, 44. Cf. Garrett v. United States, 471 U.S.

773, 790-793 (1985).

James argues (Pet. 19-21) that Felix is distinguish-

able because his conspiracy prosecution occurred

before his prosecution on the substantive narcotics

counts, while in Felix the defendant was first

prosecuted for the substantive offense and then for

the conspiracy. Nothing in this Court’s reasoning in

Felix, however, turns on the order in which the

offenses were prosecuted. To the contrary, if two

prosecutions charge a defendant with the same

offense, the order in which they are brought has no

bearing on the double jeopardy analysis. See Grady,

495 U.S. at 521 n.11; Brown v. Ohio, 482 U.S. 161, 168-

169 (1977) (“Whatever the sequence may be, the Fifth

Amendment forbids successive prosecution and cumu-

lative punishment for a greater and lesser included

offense.”).

2. James Smith next contends (Pet. 21-31) that the

district court erred in admitting evidence of his prior

drug trafficking activities under Fed. R. Evid. 404(b).

Under Fed. R. Evid. 404(b), evidence of a defendant’s

similar acts is admissible if “probative of a material

issue other than character,” Huddleston v. United

States, 485 U.S. 681, 686 (1988); if “the jury c[ould]

reasonably conclude that the act occurred and that

the defendant was the actor,” id. at 689; and if its

probative value is not “substantially outweighed by

the danger of unfair prejudice,” id. at 687 (quoting

7

Fed. R. Evid. 403). Rule 404(b) provides that among

the “issue[s] other than character” for which such

evidence can be admitted are “motive, opportunity,

intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”

The district court did not abuse its discretion in

admitting the similar acts evidence in this case.

First, Detective Lyles’s testimony that James had

told her that a police raid had taught him not to keep

drugs at his apartment was relevant because it

showed James’s motive in summoning his accomplices

to his jail cell and directing them to remove his drugs

and firearms from his safe houses. See United States

v. Wagoner, 713 F.2d 1371, 13875-1376 (8th Cir. 1983).

Detective Lyles’s testimony about James’s practice of

diluting his heroin showed James’s method of

operation, which helped explain why the heroin that

he sold to Reginald Smith was of such poor quality.

See United States v. Rawle, 845 F.2d 1244, 1247-1248

(4th Cir. 1988); United States v. Haynes, 881 F.2d 586,

589-590 (8th Cir. 1989).

Second, Alexander’s testimony that he had dis-

tributed drugs for petitioners in the past, and

Reginald Smith’s testimony that he had previously

distributed drugs in partnership with Richard, was

relevant because it showed the relationship of trust

between the members of James’s drug organization

and thus buttressed the evidence that petitioner

continued to deal with them. The relationship of

trust between James and Alexander also explains why

James selected Alexander to hide his drugs and

firearms while he was in jail. See United States v.

Legendre, 657 F.2d 238, 242 (8th Cir.), cert. denied, 454

8

U.S. 1037 (1981); United States v. Dansker, 537 F.2d

40, 58 (8d Cir. 1976), cert. denied, 429 U.S. 1038 (1977).

The probative force of the above evidence was not

substantially outweighed by the danger of unfair prej-

udice. The references to James’s other crimes were

brief and unremarkable. Moreover, the district

court’s limiting instruction confined the similar acts

evidence to its proper purposes.‘

James’s argument (Pet. 27) that the similar acts

evidence should have been excluded because he was

willing to stipulate that he was a drug dealer is

meritless. Although a district court should consider

a defendant’s willingness to stipulate in conducting

the balancing process under Fed. R. Evid. 403, it is

not required to force the government to forgo its

evidentiary presentation by accepting a tactical

stipulation by the defendant, particularly where the

stipulation is not an adequate substitute for the

proffered evidence with regard to the purposes for

which the evidence is being offered. See United

States v. Allen, 798 F.2d 985, 1001 (7th Cir. 1986);

United States v. Grassi, 602 F.2d 1192, 1197 (5th Cir.

1979), vacated on other grounds, 448 U.S. 902 (1980).

Here, the proffered evidence showed James’s methods

of conducting his drug operation and his relationship

with his co-conspirators, which was important in

helping the jury understand the charges against him

4 James’s contention (Pet. 26) that the testimony of Baker,

the Smiths, and Caviness was improperly admitted overlooks

the fact that the district court subsequently instructed the jury

to disregard their testimony. The jury is presumed to have

followed the court’s instruction. See Richardson v. Marsh, 481

U.S. 200, 206-207 (1987).

9

and his conduct in committing the charged offenses.

The stipulation that James was “a drug dealer, that

he was dealing drugs, and that he was convicted in the

District of Columbia in 1988,” Pet. App. 128, would not

have served as an adequate substitute for the evidence

that showed James’s modus operandi, his relationship

of trust with particular individuals, and his motive for

removing the drugs and firearms from his safe

houses.°

3. Finally, Richard Smith contends (Pet. 32-37)

that the district court erred by not submitting the

® The Second Circuit follows the practice of requiring the

district court to postpone admission of similar acts evidence

offered to prove intent until rebuttal so as to determine

whether the defendant, in his case, takes the issue of intent out

of the case. See United States v. Figueroa, 618 F.2d 934, 939

(2d Cir. 1980). Even the Second Circuit, however, finds no

reversible error when the evidence is admitted during the

government’s case-in-chief and, as in this case, the defendant

rests without presenting evidence. See id. at 939 n.1; United

States v. Williams, 577 F.2d 188, 191 (2d Cir.), cert. denied,

439 U.S. 868 (1978). Petitioner’s contention (Pet. 25) that

similar act evidence may not be introduced “{uJnless and until

[the defendant] dispute[s] the issue of intent” is contrary to this

Court’s recent decision in Estelle v. McGuire, 112 S. Ct. 475, 481

(1991), where the Court rejected the same argument and

explained:

(T]he prosecution’s burden to prove every element of the

crime is not relieved by a defendant’s tactical decision not

to contest an essential element of the offense. In the

federal courts “[a] simple plea of not guilty . . . puts the

prosecution to its proof as to all elements of the crime

charged.” Mathews v. United States, 485 U.S. 58, 64-65

(1988).

10

issue of the voluntariness of his confession to the

jury.

State police officer D.R. Carter went to Richard’s

home to seek his cooperation in the investigation of a

related drug offense. Because Richard was not at

home, Carter left a note on the front door that was

addressed to Richard’s wife and that asked Richard to

contact Carter and stated that he “[would] be able to

save himself some serious problems by talking with

us.” Several days later, Richard called Carter, who

told Richard that he was under investigation, asked

Richard to cooperate with him, and advised him to

hire a lawyer. Richard then went to the FBI office,

where he met with Carter and FBI agent Terry

Carney. After they gave Richard his Miranda

warnings and told him that he was not under arrest,

Richard admitted that he had sold some heroin and

cocaine during the summer of 1989. Pet. App. 7.

Prior to trial, Richard moved to suppress his

confession on the ground that it was involuntary. He

maintained that Officer Carter’s note coerced him

into confessing. After a hearing, the district court

denied the motion and ruled that the confession would

be admitted into evidence. Gov’t C.A. Br. 14-15.

Section 3501(a) of Title 18 provides that a district

court shall initially determine the issue of the

voluntariness of a defendant’s confession. If it

concludes that the confession was voluntary, it shall

admit the confession, and “shall permit the jury to

hear relevant evidence on the issue of voluntariness

and shall instruct the jury to give such weight to the

confession as the jury feels it deserves under all the

circumstances.” The court’s duty to instruct the

11

jury on the voluntariness issue, however, arises only

if the defendant actually raises the issue before the

jury. If the defendant fails to raise the voluntariness

issue before the jury, a voluntariness instruction is

not required. See, e.g., United States v. Sebetich, 776

F.2d 412, 422 n.16 (3d Cir. 1985) (collecting cases),

cert. denied, 484 U.S. 1017 (1988); United States v.

Groce, 682 F.2d 1359, 1365-1366 (11th Cir. 1982).

During: the trial on the merits, Richard did not

raise an issue of the voluntariness of his confession

before the jury. During his opening statement, his

counsel virtually conceded that his confession was

voluntary. He explained that Richard had confessed

to having sold small amounts of heroin and cocaine

because he wanted to cooperate with the authorities,

and he maintained that the government had indicted

him because he refused to admit that he was a member

of James’s drug ring. C.A. App. 128-129. During the

defense case, Richard introduced Officer Carter’s

note into evidence, but he did not present any evidence

that his confession was involuntary. During his

closing argument, Richard’s counsel contended that

the government failed to prove that he had confessed,

because it had not produced a tape recording of the

confession, but he did not contend that the confession

was involuntary. Gov’t C.A. Br. 18-20.

Richard’s contention (Pet. 36) that he raised the

voluntariness issue by introducing Officer Carter’s

® Richard’s counsel stated that Richard “told [the FBI] the

truth” and that “[hle cooperated.” C.A. App. 128-129. Counsel

also told the jury that Richard “didn’t tell them what they

wanted to hear” and “today, * * * he sits * * * indicted.” Jd. at

129.

12

note at trial is meritless. As his counsel’s conduct at

trial demonstrates, the note was introduced merely to

show what prompted Richard to come to the FBI

office to confess; Richard did not argue to the jury

that the note showed that his confession was involun-

tary. In any event, the fact-bound question whether

the court of appeals correctly apprehended the

purpose for which the note was introduced does not

warrant review by this Court.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

THOMAS E. BOOTH

Attorney

JANUARY 1993