Opposition Brief — Marilao v. United States

No. 92-1715

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7 JUN 28 1993 |

In the Supreme Court of the Gnited States

OCTOBER TERM, 1992 -

NARCcISO S. MARILAO, JR., PETITONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

J. DOUGLAS WILSON “ :

: Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court erred in denying

petitioner’s motion to inspect the district court clerk’s

jury selection lists.

2. Whether the district court denied petitioner the

opportunity to comment on his amended presentence

report.

3. Whether the government engaged in misconduct

that warranted dismissal of the indictment or a new

trial. :

4. Whether the district court abused its discretion in

admitting evidence under Federal Rule of Evidence

404(b).

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Bank of Nova Scotia v. United States, 487 U.S. 250

Nee a dpamsanversbasuicneens :

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

Savage v. United States, 547 F.2d 212 (3d Cir. 1976) ......

Taylor v. Freeland & Kronz, 112 S. Ct. 1644 (1992) .........

Test v. United States, 420 U.S. 28 (1975) «0.0... eee

United States v. Afflerbach, 754 F.2d 866 (10th Cir.),

cert. Genied, 472 U.S. 1029 (1985) .................................

United States v. Brady, 579 F.2d 1121 (9th Cir. 1978),

Gert. dented, 459 U.S. 1074 (1979) .............cccccccceccecsssneees

United States v. Cecil, 836 F.2d 1431 (4th Cir.), cert.

a

United States v. Dobbs, 711 F.2d 84 (8th Cir. 1983) ........

United States v. Frumento, 409 F. Supp. 186 (E.D. Pa.

1976), aff'd, 563 F.2d 1083 (3d Cir. 1977), cert. denied,

Los secnansenuunensavinnnénncssevncnens

United States v. Hafen, 726 F.2d 21 (1st Cir.), cert.

I I Ee UE CUO occ ccakinsnavccevesasncenecsecesecsccess

United States v. Hasting, 461 U.S. 499 (1988) .......

United States v. Hawkins, 661 F. 2d 436 (5th Cir. 1981),

cert. denied, 456 U.S. 991 (1982) .......................ccccesseeees

United States v. Kenny, 645 F.2d 1323 (9th Cir.), cert.

I NE rt I ON ose casbcsesensnncnsendsscrcerecossess

United States v. Lewis, 472 F.2d 252 (3d Cir. 1973) ........

(III)

6

6

on

6

6

IV

Cases—Continued: Page

United States v. Long, 88 F.R.D. 701 (W.D. Pa. 1981),

aff’d, 676 F.2d 688 (3d Cir.), cert. denied, 459 U.S. 829

LMT secvccsavsasceecishisAnnandpusanaccbessdaeassakcisuiaainannaditeivestneect 5

United States v. McNeill, 728 F.2d 5 (1st Cir. 1984) ........ 10

United States v. Mechanik, 475 U.S. 66 (1986) ................ 9

United States v. Payner, 447 U.S. 727 (1980) .................. ~

United States v. Pepe, 747 F.2d 632 (11th Cir. 1984) ....... 6

United States v. Orman, 740 F.2d 1298 (3d Cir. 1984) .... 10

United States v. Rohrer, 708 F.2d 429 (9th Cir. 1983) ..... 10

United States v. Russell, 411 U.S. 423 (1973) .................. 10

United States v. Ryans, 903 F.2d 731 (10th Cir.), cert.

Cm, SOG U7Fe; BO Cr a sncskcnicacnesasncictscsssuncpernsececsnins 8

United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986) .. ~

United States v. Warinner, 607 F.2d 210 (8th Cir. 1979),

cert. denied, 4465 UB; GET (IBRD) vcccssseicnsscinsscssiscccescsncsas 6

United States v. Williams, 112 S. Ct. 1735 (1992) ............ 8,9

Yee v. City of Escondido, 112 S. Ct. 1522 (1992) ............... 6

Constitution, statutes and rules:

JS. Const. :

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Jury Selection and Service Act of 1968, 28 U.S.C. 1861 ef

seq.:

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Fed. R. Crim P.:

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Cases—Continued:

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Model Rules of Professional Conduct:

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E.D. Pa. Standing Order for Videotape Recording of

RCE: TD ead ecnsiscdansecatnicarccewtcsesdtnennerins

§n the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-1715

NARCISO S. MARILAO, JR., PETITONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1A-

3A) is unpublished, but the decision is noted at 986

F.2d 1410 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

January 21, 1993. A petition for rehearing was denied

on February 23, 1993. Pet. App. 4A-5A. The petition

for a writ of certiorari was filed on April 19, 1993.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

STATEMENT

After a jury trial in the United States District

Court for the Eastern District of Pennsylvania, peti-

tioner was convicted on one count of conspiracy to

defraud the Immigration and Naturalization Service

(INS), in violation of 18 U.S.C. 371, and on three

counts of using fraudulent immigration documents, in

violation of 18 U.S.C. 1546(a). He was sentenced to 16

months’ imprisonment, to be followed by three years’

supervised release, and was ordered to pay a $10,000

fine. The court of appeals affirmed. Pet. App. 1A-3A.

1. In April 1990, Rodolfo Pamposa, a Philippine

national illegally present in the United States, con-

sulted petitioner, a New Jersey attorney who prac-

ticed immigration law, to determine whether Pam-

posa was eligible for amnesty. Pamposa_ told

petitioner that he had first arrived in this country in

1984 and that his last entry occurred in 1988.

Petitioner advised Pamposa that he would have to

change his date of entry to qualify for amnesty.

Subsequently, at petitioner’s instruction, Pamposa

obtained false certifications showing that he had

resided and been employed in the United States from

1976 to 1980. Petitioner later prepared an application

for amnesty that falsely stated Pamposa’s residence

and date of entry. Gov’t C.A. Br. 8-9.

In early May 1990, petitioner took Pamposa and

Salvadore Panahon, another illegal Philippine alien,

to the New York INS office to apply for amnesty.

Both Pamposa and Panahon were New Jersey resi-

dents, but petitioner changed the addresses on their

amnesty applications to state that they resided in

3

New York. INS denied both Pamposa’s and Panahon’s

applications for amnesty. Gov’t C.A. Br. 9-10.

On May 21, 1990, petitioner altered Pamposa’s and

Panahon’s amnesty applications to state that they

lived in Philadelphia. He then took Pamposa, Pana-

hon, and Elderina Corado, a third illegal Philippine

alien, to the Philadelphia INS office to apply for

amnesty. On petitioner’s advice, Pamposa and Corado

falsely told INS officials that they lived in Philadel-

phia. Gov’t C.A. Br. 10-11.

2. In July 1990, INS officials visited Corado and

Pamposa. The INS agents told Corado and Pamposa

that their amnesty applications had been found to be

fraudulent and that if they were willing to make

complete and truthful statements, they woud be

prosecuted for misdemeanors instead of felonies.

After being informed of their Miranda rights, both

Corado and Pamposa executed written waivers of

those rights and then gave statements recounting

that petitioner counseled and aided them in including

false information in their amnesty applications. At

the request of INS officials, Pamposa and Corado also

recorded telephone conversations with petitioner.

Gov't C.A. Br. 11-12, 20-23.

5. Petitioner was subsequently indicted and con-

victed for defrauding the INS and for using fraudulent

immigration documents. On appeal, petitioner chal-

lenged the district court’s denial of his pretrial

motion to inspect the district court clerk’s records

regarding the selection of the grand and petit juries

in his case, Pet. App. 6A-7A, 16A-22A, 23A-24A; Gov't

C.A. Br. 13-16; the district court’s admission of

testimony of two other illegal Philippine aliens that

petitioner had assisted in making fraudulent amnesty

4

applications, Gov't C.A. Br. 38-39; and the district

court’s denial of petitioner’s request for dismissal or

a new trial based on the government’s misconduct,

Gov't C.A. Br. 19-31. The court of appeals summarily

affirmed. Pet. App. 1A-8A.

ARGUMENT

1. Petitioner contends (Pet. 9-18) that the district

court erred in denying his motion to inspect jury

selection records for the Eastern District of Penn-

sylvania. That contention is without merit.

The Jury Selection and Service Act of 1968, 28

U.S.C. 1861-1878, requires the random selection of

potential jurors from voter registration lists or lists

of actual voters, as supplemented by other sources if

necessary to foster the Act’s policy of ensuring

selection of juries from a fair cross-section of the

community. See 28 U.S.C. 1861, 1868. The Act sets

forth detailed procedures that each judicial district

must follow to guarantee that grand and petit juries

are chosen in a nondiscriminatory fashion. See 28

U.S.C. 1862-1864, 1866.

Under the Act, a criminal defendant may move to

dismiss an indictment or stay the proceedings against

him “on the ground of substantial failure to comply

with the provisions [of the Act] in selecting the grand

or petit jury.” 28 U.S.C. 1867(a). The Act gives a

criminal defendant who makes or intends to make

such a motion the right to obtain inspection of the

records compiled by the clerk of the court in the jury

selection process. 28 U.S.C. 1867(a) and (f). In Test v.

United States, 420 U.S. 28 (1975) (per curiam), this

Court held that litigants have “essentially an

unqualified right to inspect jury lists” in order to

5

support a motion “challenging jury-selection proce-

dures.” Jd. at 30 (emphasis omitted).

Petitioner moved to inspect the jury selection

records for the Eastern District of Pennsylvania. He

made that motion in support of his challenge to the

district court clerk’s use of voter registration lists to

select potential jurors. That system of selection, he

argued, resulted in the underrepresentation of cer-

tain minorities, in violation of the Constitution. He

did not allege, however, that the clerk had failed to

comply with the requirements of the Act. Accord-

ingly, his motion represented a facial challenge to the

Act’s preference for using voter registration rolls as

a pool for jury venires, and not an attack on the

particular jury selection procedures used to select

the grand jury that indicted him. Thus, his motion

did not fall within the provision of the Act allowing

access to jury selection records, he was not entitled

to obtain inspection of the records he sought, and this

Court’s decision in Test is inapposite.

Petitioner’s underlying challenge to the use of

voter registration records as the source of jury

venires is without merit. The Third Circuit has long

held that such use of voter registration lists is

constitutionally permissible. See United States v.

Lewis, 472 F.2d 252, 256 (3d Cir. 1973); see also United

States v. Frumento, 409 F. Supp. 136, 141 (i.D. Pa.

1976), aff’d, 563 F.2d 10838 (8d Cir. 1977), cert. denied,

439 U.S. 1072 (1978) (challenge under Act and Fifth

Amendment); United States v. Long, 88 F.R.D. 701,

705 (W.D. Pa. 1981), aff'd, 676 F.2d 688 (3d Cir.), cert.

denied, 459 U.S. 829 (1982); Savage v. United States,

547 F.2d 212, 214-215 (8d Cir. 1976) (petit jury). Every

court of appeals to have addressed the issue has

6

upheld the Act’s preference for the use of voter regis-

tration lists against a Sixth Amendment challenge.

See United States v. Cecil, 836 F.2d 1431, 1451 (4th

Cir.) (en bane), cert. denied, 487 U.S. 1205 (1988);

United States v. Afflerbach, 754 F.2d 866, 869-870

(10th Cir.), cert. denied, 472 U.S. 1029 (1985); United

States v. Pepe, 747 F.2d 632, 648-649 (11th Cir. 1984);

United States v. Hafen, 726 F.2d 21, 22-24 (1st Cir.),

cert. denied, 466 U.S. 962 (1984); United States v.

Hawkins, 661 F.2d 436, 442 (5th Cir. 1981), cert.

denied, 456 U.S. 991 (1982); United States v.

Warinner, 607 F.2d 210, 214 (8th Cir. 1979), cert.

denied, 445 U.S. 927 (1980); United States v. Brady,

579 F.2d 1121, 1134 (9th Cir. 1978), cert. denied, 439

U.S. 1074 (1979). The grand jury records that peti-

tioner sought could not have buttressed that legal

challenge; the court of appeals was therefore correct

in denying petitioner relief.

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

district court. denied him an opportunity to comment

on the revised presentence report at his sentencing

hearing. Petitioner raised that claim for the first

time in his petition for rehearing; this Court should

accordingly decline to review it. See Taylor vy.

Freeland & Kronz, 112 S. Ct. 1644, 1649 (1992): ef.

Yee v. City of Escondido, 112 S. Ct. 1522, 1531 (1992).

In any event, petitioner’s contention is meritless.

Petitioner and his attorney each filed objections to

the presentence report. In response to those objec-

tions, the probation office produced an amended

report. At sentencing the district court specifically

noted that petitioner was dissatisfied with the

amended report. Accordingly, the district court

allowed petitioner’s counsel to argue at length re-

7

garding petitioner’s objections to the revised report.

The district court also did not prevent petitioner

himself from commenting on the report. Instead, the

court told petitioner that his attorney had adequately

addressed the legal issues surrounding his sentenc-

ing and that petitioner would be better off making a

personal statement. When petitioner disregarded

that advice, the district court did not make any effort

to preclude petitioner from addressing the presen-

tence report, nor did it limit petitioner’s comments to

the court. 4/24/92 videotape 9:12-9:18, 11:06-11:10."

Petitioner’s sentencing fully complied with the

requirements of Federal Rule of Criminal Procedure

32.

3. Petitioner also errs in arguing (Pet. 18-28) that

the government engaged in outrageous conduct that

should have led the district court to dismiss the

indictment or grant a new trial.

a. Petitioner claims (Pet. 18-21) that the INS

agents’ contact with Corado and Pamposa after their

visit to the Philadelphia INS office violated Rule 4.2

of the Model Rules of Professional Conduct (1984),

which provides that “liJn representing a client, a

lawyer shall not communicate about the subject of the

representation with a party the lawyer knows to be

represented by another lawyer in the matter, unless

the lawyer has the consent of the other lawyer or is

authorized by law to do so.”

Pursuant to 28 U.S.C. 753, the Judicial Conference of the

United States has authorized the Eastern District of Pennsyl-

Vania, on an experimental basis, to use videotape recording for

making the official record of court proceedings. See Standing

Order for Videotape Recording of Court Proceedings, E.D. Pa.

R. 15 foll.

8

That rule has no application to this case. First, the

rule does not prohibit preindictment, investigative

contacts by law enforcement officers with persons

represented by counsel. See United States v. Ryans,

903 F.2d 731, 735-739 (10th Cir.), cert. denied, 498 U.S.

855 (1990); United States v. Sutton, 801 F.2d 1346, 1366

(D.C. Cir. 1986); United States v. Dobbs, 711 F.2d 8&4,

86 (8th Cir. 1983); United States v. Kenny, 645 F.2d

1328, 1339 (9th Cir.), cert. denied, 452 U.S. 920 (1981).

Second, this is not a case in which the agents of the

government contacted a suspect in the absence of his

counsel; in this case, the lawyer was the suspect. The

agents’ contacts with the clients did not in any way

affect petitioner’s right to counsel as would be his

claim if petitioner had been the client-suspect who

was contacted in the absence of his lawyer. Third,

even if petitioner could establish that the INS agents’

contact with Corado and Pamposa violated Rule 4.2,

he would not be entitled to the relief he seeks. Absent

a violation of a statute, rule, or constitutional provi-

sion designed to control the conduct of government

agents, a court may not exercise its supervisory

powers to dismiss an indictment or grant a new trial

simply because the court concluded that an inves-

tigative agent’s conduct was improper or unethical.

See Bank of Nova Scotia v. United States, 487 U.S.

250, 254-256 (1988); United States v. Hasting, 461 U.S.

499, 505 (1983); United States v. Payner, 447 U.S. 727,

736 n.8 (1980); ef. United States v. Williams, 112 S. Ct.

1735, 1741-1742 (1992).

b. Petitioner further asserts (Pet. 22) that the

government should have informed the grand jury of

the “lenient charges and sentences and Employment

Authorization Cards given to government star

9

witnesses Corado and Pamposa.” In fact, the govern-

ment informed the grand jury that Corado and

-amposa were going to plead guilty to misdemeanors.

The other aspects of their plea agreements had not

been resolved when they testified before the grand

jury. Gov’t C.A. Br. 29. Furthermore, this Court

recently has made clear that the government has no

duty to present to the grand jury all evidence bearing

on the credibility of a witness. See Williams, 1125S.

Ct. at 1742.

c. There is likewise no merit to petitioner’s claim

(Pet. 22) that the presence of a second prosecutor in

the grand jury room violated Federal Rule of

Criminal Procedure 6(d). Rule 6(d) provides that

“lalttorneys for the government * * * may be present

while the grand jury is in session,” and Federal Rule

of Criminal Procedure 54 defines “[a]ttorneys for the

government” to include “an authorized assistant of a

United States Attorney.” There is no prohibition

against several prosecutors being present at one

time. In any event, petitioner has now been convicted

by a jury. Therefore, even if there had been a

violation of Rule 6(d), the subsequent jury verdict

would render that error harmless. See United States

v. Mechanik, 475 U.S. 66, 72-73 (1986).

d. Finally, petitioner alleges (Pet. 25-28) that the

prosecutor engaged in several acts of trial miscon-

duct that were sufficiently outrageous to warrant

relief. As to the claim that the prosecutor spoke with

a witness at a recess during her cross-examination,

the government pointed out in its brief on appeal that

the only recess during her testimony occurred during

direct examination, not cross-examination. Gov’t

C.A. Br. 31. Petitioner’s objection to the reference to

_

10

the high fees he charged Pamposa and Corado is not

well taken. The size of the fees that petitioner

charged provided some indication that petitioner

knew the course he was pursuing on behalf of his

clients was unlawful. With respect to petitioner’s

complaint about the prosecutor’s alleged “vouching”

for his witnesses, it was entirely appropriate for the

prosecutor to elicit the terms of the witnesses’

cooperation agreements in anticipation of cross-

examination. See United States v. Orman, 740 F.2d

1298, 1302-13803 (8d Cir. 1984); United States v.

McNeill, 728 F.2d 5, 14 (st Cir. 1984); United States

v. Rohrer, 708 F.2d 429, 433 (9th Cir. 1983). And the

prosecutor’s closing argument, in which he contended

that the prosecution’s witnesses were credible and

petitioner’s were not, was entirely proper. Peti-

tioner’s claims of trial error are thus without merit

and in any event fall far short of the sort of

outrageous conduct that could be deemed to violate

the Due Process Clause. See United States v.

Russell, 411 U.S. 423, 431-432 (1973).

4. Petitioner’s final claim (Pet. 29-31) is that the

district court abused its discretion by admitting

under Federal Rule of Evidence 404(b) testimony from

two other illegal aliens that petitioner had instructed

them to prepare fraudulent immigration documenta-

tion. That fact-bound claim is wholly without merit.

Rule 404(b) allows the admission of evidence of

“other crimes, wrongs, or acts” to prove “motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” See

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

this case, the government introduced evidence that

petitioner engaged in acts with other illegal aliens

ic ata aanaeeen

1]

that were strikingly similar to and occurred almost

simultaneously with the offenses charged in the

indictment. That evidence tended to show that peti-

tioner acted with criminal intent and that the

witnesses did not simply misconstrue his legal advice

to them. Moreover, the district court lessened the

risk of any unfair prejudice to petitioner by giving the

jury a limiting instruction regarding that evidence.

Accordingiy, petitioner’s claim does not warrant

review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

J. DOUGLAS WILSON

Attorney

JUNE 1993