Opposition Brief — Burke v. United States

No. 94-694 fi DEC 2

OFF it

In the Supreme Court of the United States —

OCTOBER TERM, 1994

{OBERT B. BURKE, PETITIONER

v.

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

JOANN HARRIS

Assistant Attorney General

LOUIS M. FISCHER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court violated petitioner’s

constitutional rights when it refused to admit into

evidence the prior statements of one of petitioner’s co-

conspirators who testified as a government witness.

2. Whether the district court erred by refusing to

instruct the jury that evidence of petitioner’s good

character was, standing alone, enough to create a

reasonable doubt about his guilt.

(I)

TABLE OF CONTENTS

Page

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‘TABLE OF AUTHORITIES

Cases:

BankAtlantic v. Blythe Eastman Paine Webber, Inc.,

955 F.2d 1467 (11th Cir. 1992), cert. denied, 113 S. Ct.

og EINER. SG CREE ES VeRO BORIS SO 9

Chambers v. Mississippi, 410 U.S. 284 (1978) ....cc..000.. 4, 5, 6, 7

Cool v. United States, 409 U.S. 100 (1972) cecccccccccccccceoesee. 12

Davis v. Alaska, 415 U.S. 808 (1974) v.ccccccccccccccccsecceseccese. 7

Edgington v. United States, 164 U.S. 361 (1896) ............. 11, 12

Gordon v. United States, 344 U.S. 414 (1958) .................. 5, 7, 8

Kentucky v. Whorton, 441 U.S. 786 (1979) cecccccoccccccocececee. 2

Michelson v. United States, 335 U.S. 469 (1948) .............. 11

Spangler v. United States, 487 U.S. 1224 (1988) .............. ll

United States v. Burke, 781 F.2d 1234 (7th Cir. 1985) ..... 12

United States v. Daily, 112 S. Ct. 405 (1991) .......ccccccc00-- 11

United States v. Dennis, 625 F.2d 782 (8th Cir. 1980) ..... 9

United States v. Devine, 934 F.2d 1325 (5th Cir.), cert.

Ss, Be Whe Sree I CED wecccecensecrnsonnvvnscnccanicsesasosscce 9

United States v. Lashmett, 965 F.2d 179 (7th Cir.

SONI sh Salsa Cink oh ibdica ssl cibiccbctsesnssncniveurennehourincs doaieadhtsidinis’e sedieeca: asc 9

United States v. Soundingsides, 825 F.2d 1468 (10th Cir.

I San hight hei era aieaniacns ame ordeeundiccbedeoesuctebtbiiamssecee 9

United States v. Spangler, 838 F.2d 85 (3d Cir.), cert.

I Pe TE TID vn icvvceecceerctetvccrvevencervoeszcnnes 5

Washington v. Texas, 388 U.S. 14 (1967) ceccccccocccccocccecceee. 7

(III)

lV

Constitution, statutes and rules: Page

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Se BE ars; ED perapsicsansssasccssisccesenizcacsabinrervisintcoianesions 2

Fed. R. Evid.:

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Pet ID acasnscnvinciesercnisnccessdinrssdaeenssasienssreanieanaion 5

Jn the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-694

{OBERT B. BURKE, PETITIONER

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. Al-A12)

is unpublished, but the decision is noted at 31 F.3d 1174

(Table).

JURISDICTION

The judgment of the court of appeals was entered on

July 20, 1994. Pet. App. D1-D2. The petition for a writ of

certiorari was filed on October 18, 1994. The jurisdiction

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

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of Pennsylvania, petitioner was

convicted of murdering a federal witness, in violation of

(1)

2

18 U.S.C. 1512(a)(1)(A); conspiring to do so, in violation of

18 U.S.C. 371; conducting the affairs of an enterprise

through a pattern of racketeering activity, in violation of

18 U.S.C. 1962(c); committing arson, in violation of 18

U.S.C. 844(i); and using interstate commerce facilities to

commit a murder for hire, in violation of 18 U.S.C.

1958(a). He was sentenced to life imprisonment and fined

$25,000. The court of appeals affirmed. Pet. App. Al-A12.

1. Petitioner was a lawyer who had a former client

murdered to prevent her from testifying before a grand

jury about his scheme for defrauding insurance com-

panies. In 1987, petitioner and two physicians developed

the scheme, under which petitioner submitted false

medical bills to insurance companies for treatment that

supposedly had been given to petitioner’s personal-injury

clients. The scheme became the subject of a federal

criminal investigation in the late 1980s. The investi-

gation led to the return of a 106-count indictment charg-

ing petitioner with money laundering, making false

declarations to a grand jury, mail fraud, and obstruction

of justice. In 1990, petitioner pleaded guilty to those

charges and was sentenced to five years’ imprisonment.

See Pet. App. A2 & n.2.

Earlier, in May 1989, after learning of the grand jury

investigation, petitioner coached his former clients to

commit perjury before the grand jury. Donna Willard

was the one former client who, on March 1, 1990, told

petitioner that she would not lie to the grand jury.

Petitioner told Willard that if she did not do so he would

put “two bullets in her head.” Pet. App. A3. On March 6,

1990, Wiilard died after she was shot twice in the head at

point-blank range in her home while her 12-year old son

was watching. /bid.; Gov’t C.A. Br. 11-13.

2. James Louie pleaded guilty to the murder of

Willard and later testified at petitioner’s trial, as follows.

3

Petitioner told Louie that Willard had refused to lie to

the grand jury and that he wanted Louie to find someone

to murder her. Petitioner gave Louie money to pay the

gunman and bullets for the gun. Petitioner emphasized

that Willard had to be killed before she was to appear

before the grand jury. Louie found the man who would

actually pull the trigger, Javier Lebron, through a third

man, John Foley. On the night of the murder, Louie and

Foley drove Lebron to Willard’s home, gave Lebron

$1,000 of the money that petitioner had provided, and

drove Lebron back to New Jersey after Lebron shot

Willard. Pet. App. A3; Gov’t C.A. Br. 6, 13-15.

On both direct and cross-examination, Louie said that

he concealed petitioner’s involvement in the murder from

Foley and Lebron. Pet. App. A4; Gov’t C.A. Br. 6-7. In

his own defense, petitioner sought to introduce two tape-

recorded conversations between Foley and Louie in

which Louie said that petitioner was not involved in the

murder plot. Petitioner argued that the tapes fell within

the co-conspirator exception to the hearsay rule in Fed.

R. Evid. 801(d)(2)(E) and were also admissible as prior

inconsistent statements to impeach Louie. The district

court refused to admit the recorded statements. Pet.

App. A4.

The court also declined petitioner’s request to in-

struct the jury that evidence of his good character was,

standing alone, enough to create a reasonable doubt

about his guilt. The court instead charged the jury that

“{a}long with all the other evidence that you have heard,

you may take into consideration what you believe about

the defendant’s peacefulness and nonviolence when you

decide whether the government has proved beyond a rea-

sonable doubt that the defendant committed the crime.”

Pet. App. A11-A12.

4

3. The court of appeals affirmed petitioner’s

convictions. Pet. App. Al-A12. It rejected petitioner’s

contention that Louie’s prior statements to Foley were

admissible under Rule 801(d)(2)(E).' The court ex-

plained: “The plain meaning of th[e] language [of the

Rule] is that ‘a statement by a coconspirator of a party

during the course and in furtherance of the conspiracy’

is admissible against that party. Here, Louie was not a

co-conspirator of the United States, and therefore his

statements could not be offered against the United

States in this case.” Pet. App. A4-A5.

The court also held that the admission of Louie’s prior

statements was not required by the Constitution. Pet.

App. A5-A7. It distinguished Chambers v. Mississippi,

410 U.S. 284 (1973), where this Court held that a state

evidentiary rule had deprived Chambers of his due

process rights by excluding evidence favorable to him.

The court of appeals determined in this case that, unlike

the prior statements against penal interest at issue in

Chambers, Louie’s prior statements did not bear

“persuasive assurances of trustworthiness,” and that, in

contrast to the defendant in Chambers, petitioner had an

unrestricted opportunity to cross-examine the witness

who had made the prior statements. Pet. App. A6-A7

(internal quotation marks omitted). The court further

held that, even if Louie’s prior statements should have

been admitted, their exclusion was harmless error. /d.

at AY.

The court of appeals rejected petitioner’s challenge to

the jury instruction on character evidence, observing

1 Rule 801(d)(2)(E) provides that “[a] statement is not hearsay

if * * * [t]he statement is offered against a party and is * * * a

statement by a coconspirator of a party during the course and in

furtherance of the conspiracy.”

5

that the same instruction had been approved in United

States v. Spangler, 838 F.2d 85, 86-87 (3d Cir.), cert.

denied, 487 U.S. 1224 (1988). Pet. App. A12.?

ARGUMENT

1. Petitioner contends that he was deprived of due

process and the equal protection of the laws by the

district court’s refusal to admit the prior statements

that Louie made to Foley denying petitioner’s involve-

ment in the plot to murder Willard. That contention is

without merit.

a. Petitioner first argues that the exclusion of

Louie’s statements deprived him of due process under

this Court’s decisions in Chambers v. Mississippi, 410

U.S. 284 (1973), and Gordon v. United States, 344 U.S.

414 (1953). Pet. 10-25. The court of appeals correctly

rejected that argument. Pet. App. A6-A8.

In Chambers, a defendant on trial for murder called as

a witness McDonald, who had previously confessed to the

murder. On direct examination of McDonald, the defend-

ant introduced McDonald’s written confession. On

cross-examination by the prosecutor, however, Mc-

Donald repudiated the confession and gave an alibi for

the time of the murder. The trial court refused to allow

the defendant to cross-examine McDonald as an adverse

witness or to introduce into evidence prior oral state-

* The court of appeals also held that, under the “excited

utterance” exception to the hearsay rule, Fed. R. Evid. 803(2), the

district court properly admitted the testimony of Willard’s co-

worker that Willard said petitioner threatened to put “two bullets

in her head” if she did not lie to the grand jury. Pet. App. A10-

All. Although the petition contains argument concerning that

holding (Pet. 27-28), the correctness of that holding is not encom-

passed within the questions presented (Pet. i) and, in any event,

the holding does not warrant further review.

6

ments by McDonald confessing to the murder. See

Chambers, 410 U.S. at 291-293.

This Court reversed the defendant’s conviction,

holding that he did not receive a fair trial. 410 U.S. at

302. The Court began by observing that two “essential”

elements of a fair trial are “[t]he rights to confront and

cross-examine witnesses and to call witnesses in one’s

own behalf.” Jd. at 294. The Court determined that

“(bloth of these elements * * * [were] implicated” in

that case. Jd. at 295. First, the defendant “was denied an

opportunity to subject McDonald’s damning repudiation

and alibi to cross-examination.” Jbid. But the Court

found it unnecessary to “decide * * * whether this

error alone would occasion reversal,” in light of “the

ultimate impact of that error when viewed in conjunction

with the trial court’s refusal to permit [the defendant] to

call other witnesses” to testify to McDonald’s prior

statements confessing to the murder. Jd. at 298. The

Court emphasized that the prior statements “bore

persuasive assurances of trustworthiness.” Id. at 302.’

The Court concluded that “the exclusion [of the prior

statements] * * * coupled with the State’s refusal to

permit [the defendant] to cross-examine McDonald,”

deprived him of due process. [bid.

The court of appeals correctly concluded in the

present case that the exclusion of Louie’s prior state-

ments did not conflict with Chambers. See Pet. App. A5-

3 The Court explained (Chambers, 410 U.S. at 300-301):

First, each of McDonald’s confessions was made spontaneously

to a close acquaintance shortly after the murder had occurred.

Second, each one was corroborated by some other evidence in

the case. * * * Third, * * * each confession here was in a

very real sense self-incriminatory and unquestionably against

interest.

ee TE

7

AZ. First, unlike the statements against penal interest

in Chambers, Louie’s prior statements to Foley did not

bear “persuasive assurances of trustworthiness.” 410

| U.S. at 302; Pet. App. A7. Louie’s prior statements were

not corroborated by other evidence at trial, and they

| were not incriminatory of Louie or otherwise against his

interest. See Pet. App. A3-A4. Furthermore, the court of

appeals determined that petitioner’s opportunity to

cross-examine Louie was not restricted “in any

comparable way” to that of the defendant in Chambers.

Id. at AT.“ Thus, petitioner’s trial lacked the com-

bination of errors that together led to reversal in

Chambers.

In Gordon v. United States, 344 U.S. 414 (1953), the

government failed to produce before trial the prior

inconsistent statements of a witness named Marshall.

On cross-examination, Marshall admitted that between

his arrest and his final statement to the police, which

implicated defendants in the crime (theft of film), he had

given three or four written statements that did not

implicate them. Jd. at 416. The trial court refused to

order the production of those statements at trial. [bid.

In addition, it refused to allow the defendant during

cross-examination of Marshall to elicit the fact that,

before Marshall made his final statement to the police

inculpating defendants, he had pleaded guilty to

* Because petitioner’s cross-examination of Louie was not

restricted in any significant way, petitioner’s Sixth Amendment

argument is without merit. See Pet. 23 n.28, 24, citing Davis v.

Alaska, 415 U.S. 308, 315-318 (1974) (Sixth Amendment violated

when trial court, relying on state statute, refused to allow

defendant to use juvenile probation status to show bias of govern-

ment witness), and Washington v. Texas, 388 U.S. 14, 19-23 (1967)

(Sixth Amendment violated by state rule disqualifying alleged

accomplices from testifying for criminal defendants).

8

possession of the stolen film and been admonished by the

judge who accepted that plea to tell the probation

authorities, before sentencing, everything he knew about

the offense, “even though it might involve others.” /d. at

416-417.

This Court held that the trial court erred in refusing

to order the production of Marshall’s prior inconsistent

statements, Gordon, 344 U.S. at 418-419"; that it erred in

restricting the defendant’s cross-examination of Mar-

shall so as to exclude the judge’s admonition, id. at 421-

422: and that “the combination of these two errors was

sufficiently prejudicial to require reversal,” id. at 422.

The Court further held that each prior written state-

ment was admissible into evidence, “providing it meets

all other requirements of admissibility and no valid claim

of privilege is raised against it.” Id. at 420-421.

Gordon does not support petitioner’s constitutional

argument, because Gordon was not based on the Consti-

tution. Instead, the Court in Gordon applied “principles

of common law” concerning the admissibility of evidence,

344 U.S. at 418, to conclude that the trial court erred by

excluding certain documents, and that the error “pre-

judiced substantial rights,” id. at 423. See Gordon, 344

U.S. at 418 (case before the Court involved “a iimited and

definite category of documents to which the holdings of

this opinion are likewise confined”).

In any event, Gordon is distinguishable. Unlike

Marshall’s prior written statements in Gordon, which

the Court held were admissible under common law

5 Because Gordon was decided before enactment of the Jencks

Act, 18 U.S.C. 3500, and the Federal Rules of Evidence, the Court

relied on “principles of the common law” in holding that the prior

written statements should have been produced and admitted into

evidence at trial. 344 U.S. at 418.

9

principles of evidence, Louie’s prior statements were not

admissible under the subsequently adopted Federal

Rules of Evidence (see note 5, supra), because they were

hearsay that fell outside the co-conspirator exception to

the hearsay rule, as both courts below concluded. See

Pet. App. A4-A5. In further contrast to Marshall’s prior

statements, Louie’s prior statement: were not

corroborated by Louie’s testimony at trial, but were

contradicted by Louie’s testimony that those prior

statements were false and were made to protect

petitioner. Jd. at A4, A2-A8 & n.3. And petitioner, unlike

Gordon, had a full and fair opportunity to cross-examine

Louie on his prior statements and his reasons for

making them. Gordon is therefore of no assistance to

him.®

b. Petitioner next argues that the exclusion of

Louie’s prior statements violated equal protection,

because it is unfair to allow co-conspirator statements to

be admitted against criminal defendants but not against

® The court of appeals in this case did not purport to apply a

categorical rule barring “extrinsic evidence” to impeach a witness

where the witness admits making a prior statement. See Pet. App.

A7-A8. Petitioner is therefore mistaken in contending (Pet. 14)

that the decision below “exacerbate[s]” an asserted conflict on that

issue. See Pet. 14-17 & n.15. The decision below, however, is

consistent with the decisions of other courts of appeals holding that

extrinsic proof of a prior inconsistent statement generally is

admissible only when the witness on cross-examination denies

having made the prior statement. E.g., BankAtlantic v. Blythe

Eastman Paine Webber, Inc., 955 F.2d 1467, 1476 (11th Cir. 1992),

cert. denied, 113 S. Ct. 966 (1993); United States v. Devine, 934

F.2d 1325, 1344-1345 (5th Cir.), cert. denied, 112 S. Ct. 349 (1991);

United States v. Soundingsides, 825 F.2d 1468, 1470 (10th Cir.

1987); United States v. Dennis, 625 F.2d 782, 796 (8th Cir. 1980);

but cf. United States v. Lashmett, 965 F.2d 179, 182 (7th Cir. 1992)

(exclusion of extrinsic evidence was harmless error).

10

the government. As the court of appeals determined,

however, petitioner’s equal protection argument “is

inapplicable in this case.” Pet. App. A7. Louie’s prior

statements were inadmissible hearsay not because they

were offered against the government, but because they

were not the statements of a co-conspirator of the party

against which they were offered (in this case, the

government), as required by Fed. R. Evid. 801(d)(2)(E).

See Pet. App. A4-A5 (“Here, Louie was not a co-

conspirator of the United States, and therefore his

statements could not be offered against the United

States in this case.”). Thus, this case does not present

the question whether the statement of a witness who has

conspired with the government could be admitted against

the government if it meets the other requirements of

Rule 801(d)(2)(E) and, if not, whether that result would

offend equal protection principles.’

ce. In any event, the court of appeals correctly held

that, even if it was error to exclude Louie’s statements,

the error was harmless. Pet. App. A8-A9. As the court

of appeals observed, “[d]uring his direct testimony and on

cross-examination, Louie admitted numerous times that

he had lied to Foley regarding [petitioner’s] involve-

ment.” Jbid. The court of appeals’ own examination of

the record “convince[d] [it] that Louie was effectively

impeached with this evidence.” Jd. at A9. In light of that

case-specific determination, the exclusion of Louie’s

prior statements does not warrant further review.

7 The Third Circuit recognized that this question was not

before it when it stated: “If Louie had been a coconspirator or

agent of the government when he made the statements in question,

[petitioner’s equal protection] argument would be more apposite.

But since Louie held no such status, [petitioner’s] argument is mis-

placed.” Pet. App. A7.

11

2. Petitioner renews his contention that he was

entitled to a jury instruction stating that evidence of his

good character was, standing alone, enough to create a

reasonable doubt precluding conviction. Pet. 25-29.

There is some disagreement among the circuits over

whether such an instruction is ever required by due

process. See Spangler v. United States, 487 U.S. 1224

(1988) (White, J., dissenting from denial of certiorari).

Nonetheless, this Court has declined further review of

the issue in two prior cases, United States v. Daily, 112

5. Ct. 405 (1991); Spangler v. United States, supra, and

there is no reason for a different course here. The court

of appeals in the present case merely adhered to its prior

decision in Spangler. See Pet. App. A12. Thus, contrary

to petitioner’s assertion, the decision below does not

“exacerbate[|” the disagreement among the circuits.

Pet. 26.

This Court has never held that the jury in a criminal

case must be specifically instructed that evidence of the

defendant’s good character may, standing alone, suffice

to create a reasonable doubt precluding a finding of guilt.

Some lower courts, however, have suggested that such

an instruction is required, at least in certain cases, by

Edgington v. United States, 164 U.S. 361 (1896), and

Michelson v. United States, 335 U.S. 469 (1948). See

Spangler v. United States, 487 U.S. 1224 (1988) (White,

J., dissenting). In Edgington, the Court recognized that

evidence of good character may, alone, give rise to a

reasonable doubt, but the Court did not hold that the

Constitution requires a specific jury instruction to that

effect. See 164 U.S. at 365-366. Although the Court did

state in Michelson that such an instruction might be

required “in a proper case,” 335 U.S. at 476, “[tJhe

passage was dictum. The question before the Court [in

Michelson] was whether the prosecutor may introduce

12

specific instances of bad conduct in response to the

defendant’s character evidence.” United States v.

Burke, 781 F.2d 1234, 1241 (7th Cir. 1985).

Assuming that in some cases due process requires a

jury instruction specifically stating that good character

alone is enough to create reasonable doubt, this is not

such a case. Cf. Kentucky v. Whorton, 441 U.S. 786

(1979) (per curiam) (due process does not require jury

instruction on presumption of innocence in every case).

Petitioner does not and cannot suggest that any of the

jury instructions actually given could have led the jury

to disregard or undervalue the evidence of petitioner’s

good character. Cf. Edgington, 164 U.S. at 366 (dis-

approving lower court decisions suggesting that

evidence of good character was entitled to less weight

than other types of evidence); Cool v. United States, 409

U.S. 100, 102-104 (1972) (reversing conviction when in-

struction, in effect, instructed jury to disregard defense

testimony unless it “believ[ed] beyond a reasonable doubt

that the testimony [was] true”). Indeed, the trial court

informed the jury that “[aJlong with all the other

evidence that you have heard, you may take into

consideration what you believe about the defendant’s

peacefulness and nonviolence when you decide whether

the government has proved beyond a reasonable doubt

that the defendant committed the crime.” Pet. App. Al1-

Al2. That instruction permitted the jury to find

petitioner not guilty based solely on evidence of his good

character. The trial court’s failure to give a more

specific instruction did not deprive petitioner of a fair

trial.

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREwS. Days, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

LOUIS M. FISCHER

Attorney

DECEMBER 1994