Opposition Brief — Hazel v. United States

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FEB 17 1995 (

In the Supreme Court of the Giuted States

OCTOBER TERM, 1994

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No. 94-1057 |

30BBY HAZEL AND HOMER IL. RICHARDS, PETITIONERS

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

DREW S. Days, III

Solicitor (re rie ral

JOANN HARRIS

Assistant Attorne y General

THOMAS E. BOOTH

Attorney

De partme nt of Justice

Wa hington, EC. 20530

(202) 514 2217

AVA AR ry © Wee

QUESTIONS PRESENTED

1. Whether Lorton Reformatory in Lorton, Virginia,

is within the special maritime and territorial juris-

diction of the United States.

2. Whether a government witness’s statement that

one petitioner had sexually assaulted the witness

required a mistrial, where the district court sustained

an objection and instructed the jury to disregard the

statement.

3. Whether petitioners were entitled to a new trial

based on new evidence.

(I)

TABLE OF CONTENTS

Page

a hidieh caiciditictsde dca liidckieabdatdesenivdasnncuesvenossvoeeens 1

SEER Et Te ee a a 1

Nee eesdubanbunuesaions 1

8 RePEc 4

SESE Ane ES oe 11

TABLE OF AUTHORITIES

Cases:

Board of Supervisors v. United States, 408 F. Supp. 556

(E.D. Va. 1976), appeal dismissed, 551 F.2d 405

8 SRE SUR ERIE ES SESS See 6-7

Bowen v. Johnston, 306 U.S. 19 (1939) ........ccccccceccecceeeese 5

Cannon v. United States, 645 F.2d 1128 (D.C. Cir.

a cishildateiustenmeurenees 6, 8

District of Columbia v. John R. Thompson Co.,

a ccs cc nmsmnias 7

Johnson v. United States, 225 U.S. 405 (1912) .........0...... 7,8

Larrison v. United States, 24 F.2d 82 (7th Cir. 1928) ..... 11

Palmore v. United States, 412 U.S. 389 (1973) .........00000-.

Richardson v. Marsh, 481 U.S. 200 (1987) ...cccccccccccececeee 9

Shannon v. United States, 114 S. Ct. 2419 (1994) ............ 9

United States v. Abel, 469 U.S. 45 (1984) ......cceccccccccecceee 10

United States v. Braggs, 23 F.3d 1047 (6th Cir.), cert.

oT 10

United States v. Gibson, 880 F.2d 795 (4th Cir. 1989) ...... .

United States v. Kelly, 790 F.2d 130 (D.C. Cir. 1986) ...... 10

United States v. Kimbrough, 528 F.2d 1242 (7th Cir.

tc cceicwevunmtucens 9

United States v. Reed, 887 F.2d 1398 (11th Cir. 1989),

cert. denied, 493 U.S. 1080 (1990) ......... ce eeeeeeeeeees 10

United States v. Reyes-Alvarado, 963 F.2d 1184 (9th

Cir.), cert. denied, 113 S. Ct. 258 (1992) .o...cccccccccccecceee 10

(IIT)

1V

Cases—Continued: Page

United States v. Walker, 25 F.3d 540 (7th Cir.), cert.

SOE, TE Gy Grd GURe CID ievckassssidcassntacteicsacecesnsancsins 10

Wisniewki v. United States, 353 U.S. 901 (1957) ............. 8

Constitution, statutes and rule:

Aeris Ms ce I i i 5, 7

Act of Mar. 3, 1909, ch. 250, 35 Stat. 717 ...................0.000. 5

Act of Aug. 5, 1909, ch. 7, 36 Stat. 122 ..............ccccccssssseess 5 ,

Assimilative Crimes Act, 18 U.S.C. 18 ..................ccccccccee 2

Federal Tort Claims Act, 28 U.S.C. 2671 et seq. .............. 8

re a eas 5, 6, 7, 8

De es RT - cxesendicinienmnateatunisicmacteadeudetnedsnacon 2

SD TEs STD - cckrscruciskancininemeandcnoneiaabiunesineneblanennedas 5

AG pe RR, NORE EER ee ran erste Re EUS ODOR STONED EAN 8

Re er EE as os 0 ence dadptadcchaastensoadiuaualecaieenies 7

We, Oe SED cicnicdicutadasiaibindinsAnseindbevaunwiesusnidcinaetiankan 6

Va. Code Ann. §§ 7.1.-18.1 (Michie 1998) .....................000: 7

I i | I CHIP. ssisisiidervansestncavasccnorsicotananentbaebanmnaabe 6

ee ee OI ial catdceicdanraecesenbicicidevcdvannidddeinudiasinante 6

Pe ig: SE IIED cccacdasnacchsvisasiisnasescinosestbitendscuenionans 7

Oe is I (2 os 7 aciadssiaiadsaacaias 7

I eae 9-10

Miscellaneous:

Transfer of Lorton Reformatory to the District of

Columbia: Hearings on S. 1243 Before the Subcomm.

on National Penitentiaries of the Senate Comm. on

the Judiciary, 94th Cong., Ist Sess, (1975) ................00. 5-6, 7

Jn the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-1057

BosBY HAZEL AND HoMER L. RICHARDS, PETITIONERS

Vv.

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. 1a-8a) is

unpublished, but the decision is noted at 33 F.3d 53

(Table).

JURISDICTION

The judgment of the court of appeals was entered on

August 16, 1994. The petition for a writ of certiorari was

filed on November 14, 1994. The jurisdiction 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 Eastern District of Virginia, petitioners

Hazel and Richards were convicted of first-degree and

(1)

2

second-degree murder, respectively, both in violation of

18 U.S.C. 1111. Both were also convicted of possession of

a dangerous weapon, in violation of Virginia law and the

Assimilative Crimes Act, 18 U.S.C. 13. Hazel was sen-

tenced to life imprisonment, and Richards was sentenced

to 235 months’ imprisonment. The court of appeals

affirmed. Pet. App. 3a.

1. In June, 1992, petitioners were inmates at Lorton

Reformatory, which is located on federally owned land in

the State of Virginia. Pet. App. 3a-4a. The evidence at

trial established that petitioners stabbed and killed a

third inmate, Gregory Ford, outside the room of a fourth,

David Basknight. Travis Cameron testified that he saw

petitioners stab Ford. Basknight testified that he heard

an argument outside his room, heard Ford fall, and found

him bleeding on the floor. Marshall Hollingsworth testi-

fied that as he came up some nearby stairs he saw

petitioners make aggressive hand motions toward Ford;

he retreated down the stairs and then returned, passing

petitioners as they left down the stairs, and found

Basknight standing over Ford’s body. Thomas Dinsmore

testified that petitioner Richards told him that Ford

owed Richards money, and that petitioners had earlier

asked him to “hurt” Ford as payment for a debt that

Dinsmore owed primarily to petitioner Richards. /bid.

On cross-examination, Cameron admitted that he did

not like petitioner Hazel, and that he had previously told

petitioners’ counsel that he wanted to “kill” Hazel. Pet.

App. 4a; Pet. 31. On redirect the government asked

Cameron why he had those feelings, and Cameron replied

that Hazel had sexually assaulted him. The district

court sustained an immediate objection to the question,

and directed the jury to disregard it. Pet. App. 4a; Pet.

32. In response to post-trial motions for a new trial

based in part on alleged prejudice resulting from the

eo

3

question and answer, the court held that in retrospect

the government’s inquiry was proper in light of the

preceding cross-examination concerning the witness’s

bias, and that in any event petitioners were not

prejudiced by any error. Pet. App. 4a.

Petitioners also based their request for a.new trial on

a claim of newly discovered evidence. Pet. App. 6a. In

support, they produced statements from five Lorton

inmates. One stated that Ford had assaulted Basknight

on the day before Ford’s death, and that the two had

argued again on the day of the murder; that he had seen

Cameron retrieve a “shank,” or homemade knife, from a

room; and that he later saw Cameron running away with

a bloody knife while Ford lay on the floor. Jd. at 6a-7a.

Another stated that he saw Cameron pull Ford’s body

from Basknight’s room to a common area of the dorm,

and that Cameron’s shirt was spattered with blood. Two

more claimed that Basknight had stated to each of them

that he was a defendant in the murder trial, that he killed

Ford, and that he had been acquitted for lack of evidence.

The last inmate stated that he saw Cameron attack

someone in the hallway and back him into Basknight’s

room. Two of the new “witnesses” admitted that before

trial they had told the FBI that they had no information

about the murder; a third made a similar pre-trial

statement to Hazel’s lawyer. Jd. at 7a. Observing that

the case was “not * * * close” and that retrial with the

new evidence “would not probably produce a different

result,” the district court denied the motion for a new

trial. Jd. at 8a.

2. The court of appeals affirmed. Pet. App. la-8a.

Relying on a prior decision, the court held that the

federal murder charge was proper because Lorton

Reformatory is within the special maritime and

territorial jurisdiction of the United States, and that the

4

district court properly took judicial notice of that fact.

Id. at 5a-6a.

The court also held that the government’s question

about the reason for Cameron’s bias against Hazel, and

Cameron’s answer that Hazel had sexually assaulted

him, were “entirely appropriate” responses to the exten-

sive probing of Cameron’s bias on cross-examination.

Pet. App. 4a-5a. In any event, the court held that even if

the government’s question was improper, under the

circumstances “any error was undoubtedly harmless.”

Id. at 5a.

Finally, the court held that the district court did not

abuse its discretion by denying petitioners’ motion for a

new trial on the basis of their belated evidentiary

submissions. Pet. App. 6a-8a. The court explained that

to obtain a new trial, a defendant must show that (1) the

evidence was newly discovered, (2) he exercised due

diligence in discovering the evidence, (3) the evidence is

not merely cumulative or impeaching, (4) the evidence is

material, and (5) the evidence would probably result in an

acquittal at a new trial. /d. at 6a. Applying that test, the

court concluded that even if the affidavits submitted by

petitioners were new and material and could not have

been discovered earlier through due diligence, the

evidence was “merely additional impeachment of the

testimony of Basknight, Cameron, and Hollingsworth.”

Id. at 7a. In addition, based on its review of the record,

the court of appeals agreed with the trial court that the

evidence “would not probably result in acquittal” at a

new trial. Jd. at 7a-8a.

ARGUMENT

1. Petitioners contend (Pet. 14-28) that the district

court lacked jurisdiction over the federal murder

charges because the Lorton Reformatory (Lorton) is not

5

located “[w]ithin the special * * * territorial juris-

diction of the United States.” 18 U.S.C. 1111(b). Under

18 U.S.C. 7(3), that jurisdiction includes:

Any lands reserved or acquired for the use of the

United States, and under the exclusive or concurrent

jurisdiction thereof, or any place purchased or

otherwise acquired by the United States by consent

of the legislature of the State in which the same shall

be, for the erection of a fort, magazine, arsenal,

dockyard, or other needful building.

The language of Section 7(8) echoes that of Article I,

Section 8, Clause 17 of the Constitution, which

authorizes Congress to exercise “exclusive Legislation

in all Cases whatsoever” over the District of Columbia,

and

to exercise like Authority over all Places purchased

by the Consent of the Legislature of the State in

which the Same shall be, for the Erection of Forts,

Magazines, Arsenals, dock-Yards, and other needful

Buildings.

See Bowen v. Johnston, 306 U.S. 19, 22 (1939).

In 1909, Congress authorized and directed the Com-

missioners for the District of Columbia to purchase land

in either Maryland or Virginia for the construction of a

prison. Act of March 3, 1909, ch. 250, 35 Stat. 717; see

also Act of August 5, 1909, ch. 7, 36 Stat. 122 (amending

original act to require that title be taken in the name of

the United States). The United States acquired the land

comprising the entire Lorton complex (including the

reformatory, the original Occoquan workhouse, and a

variety of other facilities) by purchase or condemnation

between 1910 and 1953. See Transfer of Lorton

Reformatory to the District of Columbia: Hearings on

6

S. 1243 Before the Subcomm. on National Peniten-

tiaries of the Senate Comm. on the Judiciary (here-

inafter Lorton Hearings), 94th Cong., Ist Sess., 92-95

(1975) (District of Columbia Position Paper, Appendix

VIII). The United States retains title to the land, but

Congress has granted managerial control over the

reformatory to the government of the District of

Columbia. See generally Cannon v. United States, 645

F.2d 1128, 1135-11387 (D.C. Cir. 1981) (discussing relation-

ship between the United States and the District of

Columbia with respect to Lorton).

Petitioners argue (Pet. 15) that Lorton is not within

the special territorial jurisdiction of the United States

because it is managed and controlled by the District of

Columbia. Section 7(3) does not require federal manage-

ment, however; rather, it includes within federal juris-

diction lands “acquired” for the “use” of the United

States or for the erection of public buildings. The

United States acquired and maintains title to the land on

which the reformatory is located, and it is to the United

States that the State of Virginia has ceded exclusive or

concurrent jurisdiction.’ The District of Columbia is an

1 Under Section 7(3), land acquired for federal use generally

lies within the special territorial jurisdiction of the United States

either if it is acquired with the consent of the relevant State, or if

the United States otherwise exercises “exclusive or concurrent

jurisdiction” over it. The bulk of the land at Lorton

(approximately 2,500 out of 3,000 acres) was acquired in the first

two transactions, in 1910 and 1913. Lorton Hearings, pp. 5-6,

supra, at 92-93. With respect to those tracts, Virginia law

explicitly consented to acquisitions by the United States for public

purposes, and ceded exclusive or concurrent jurisdiction over

lands so acquired. See 1901-1902 Va. Acts 565-566; 1912 Va. Acts

563 (limiting consent); Va. Code § 19 (1919) (consenting and ceding

jurisdiction with respect to “any land acquired, or to be acquired”

7

area of special constitutional status over which

Congress exercises “exclusive Legislation,” under the

same provision of the Constitution that confers on

Congress “like Authority” over the federal installations

described in that provision and in the second clause of

Section 7(3). U.S. Const. Art. 1, § 8, Cl. 17. Congress

has, by statute, created a local governmental structure

for the District, and delegated to it various powers; but

that government exercises control over Lorton at

Congress’s discretion, and under overall federal juris-

diction. Congress retains ultimate and plenary con-

stitutional power over the District’s government and all

its functions. See generally Palmore v. United States,

411 U.S. 389, 397-398 (1973); District of Columbia v. John

R. Thompson Co., 346 U.S. 100, 104-110 (1953).

Petitioners’ reliance (Pet. 24-25) on Johnson v. United

States, 225 U.S. 405 (1912), is misplaced. In Johnson, the

Court held that a previous version of 18 U.S.C. 7(3) did

not apply to the territory of the District of Columbia

by the United States for public buildings). See also Board of

Supervisors v. United States, 408 F. Supp. 556, 564 n.10 (E.D. Va.

1976), appeal dismissed, 551 F.2d 305 (4th Cir. 1977) (Table).

Present state law is similar. See Va. Code Ann. §§ 7.1-18.1 (Michie

1993) (applicable after June 30, 1981). For some years after 1936,

however, the state consent and cession laws were limited in such a

way that they may not have applied to the acquisition of the final

423 acres of the present Lorton property. See 1936 Va. Acts 610-

611; 1940 Va. Acts 754-755; see also 40 U.S.C. 255. Petitioners do

not argue, however, that the murder at issue in this case took place

on that portion of the property. Cf. Lorton Hearings, pp. 5-6,

supra, at 92-95 (characterizing only 1.5 acres of the post-1936

acquisitions as “reformatory” property). Both the question

presented (Pet. i) and the text of the petition (Pet. 14-28) present

only petitioners’ argument that the entire reformatory falls

outside federal jurisdiction because, and to the extent that, it is

managed by the District of Columbia.

8

itself, because the statutory reference to “acquired”

lands “has a proprietary and not a governmental sense,

and is very inapt, indeed, to describe the District of

Columbia.” 225 U.S. at 415. The land on which Lorton is

located lies, however, within the boundaries of Virginia,

and not within the District of Columbia; and it was

“acquired” by the federal government through purchase

or condemnation, not through special cession by the

State. Johnson is therefore inapposite here.

Petitioners also rely (Pet. 23-24) on Cannon v. United

States, supra, and United States v. Gibson, 880 F.2d 795

(4th Cir. 1989). Cannon, however, held only that Lorton

was not a “federal agency” for purposes of liability under

the Federal Tort Claims Act, 28 U.S.C. 2671 et seq.—in

part because, under the federal statutory scheme for

local government of the District, the District and its

employees have operational responsibility for the prison,

and do not share the federal government’s general

sovereign immunity from tort liability. See 645 F.2d at

1133 n.15, 1135-1137. In Gibson, the court held that

Lorton is not a “[fJederal * * * facility” for purposes of

18 U.S.C. 1791, which bars the possession of contraband

in federal prisons. 880 F.2d at 797. Both cases turn on

the relationship between the “home rule” structure that

Congress has chosen for the District and the operation

of particular federal statutes; neither deals with the sort

of fundamental, territorial jurisdictional issue addressed

by 18 U.S.C. 7(3).’2 With respect to that issue petitioners

point to no conflict among the courts of appeals, and

suggest no persuasive reason for questioning the

conclusion of the courts below.

2 Any conflict between this case and Gibson would, in any

event, be a matter for internal resolution by the court of appeals.

See Wisniewski v. United States, 353 U.S. 901, 902 (1957).

9

2. Petitioners argue (Pet. 28-50) that the district

court was required to grant their motion for a mistrial

because of Travis Cameron’s testimony, on redirect

examination, that the reason he said he wanted to kill

petitioner Hazel was that Hazel had sexually assaulted

him. But that remark was never admitted into evidence.

To the contrary, the judge sustained petitioners’

immediate objection, and promptly instructed the jury to

disregard the question and answer because they had

“nothing to do with this case.” Pet. 31-32. Petitioners

suggest no reason for abandoning in this case “the

almost invariable assumption of the law that jurors

follow their instructions.” Shannon v. United States,

114 S. Ct. 2419, 2427 (1994) (quoting Richardson v.

Marsh, 481 U.S. 200, 206 (1987)).

Moreover, as both courts below ultimately recognized

(see Pet. App. 4a), the district court should not have

excluded the question and answer in the first place.

When the defense attempts to show that a witness is

biased against the defendant, the government is

generally entitled to elicit the witness’s explanation of

the reasons for his apparent bias, even if it refers to the

defendant’s other crimes. See United States v.

Kimbrough, 528 F.2d 1242, 1248-1249 (7th Cir. 1976)

(government witness permitted to refer to defendant’s

other crime to rebut contention that he was “out to get”

the defendant). Because petitioners sought to establish

Cameron’s bias by eliciting Cameron’s previous com-

ment to petitioners’ counsel that he would like to “[kjill”

Hazel, it was “entirely appropriate” (Pet. App. 5a) for the

prosecutor to put that remark in context by asking

Cameron to explain the source of his enmity.’

3 Petitioners’ argument that evidence of the sexual assault on

Cameron was not admissible under Federal Rule of Evidence

10

Finally, both the trial court and the court of appeals

agreed that Cameron’s passing reference to the prior

sexual assault, immediately counterbalanced by the

instruction to disregard it, caused “no prejudice” and

was “undoubtedly harmless.” Pet. App. 4a-5a. There is

no reason to question that conclusion.

3. Petitioners contend (Pet. 50-65) that the district

court should have granted their motion for a new trial

based on newly discovered evidence. A defendant is

entitled to a new trial on that basis only if he can show

that the evidence is newly discovered, that it could not

have been obtained earlier through due diligence, that it

is material (not merely impeaching or cumulative), and

that it would probably result in an acquittal on retrial.

Pet. App. 6a; see also, e.g., United States v. Walker, 25

F.3d 540, 548 (7th Cir.), cert. denied, 115 S. Ct. 531 (1994);

United States v. Braggs, 23 F.3d 1047, 1050 (6th Cir.),

cert. denied, 115 S. Ct. 274 (1994); United States v. Reed,

887 F.2d 1398, 1404 (11th Cir. 1989), cert. denied, 493 U.S.

1080 (1990); United States v. Kelly, 790 F.2d 130, 133

(D.C. Cir. 1986); United States v. Reyes-Alvarado, 963

F.2d 1184, 1188 (9th Cir.), cert. denied, 113 S. Ct. 258

(1992). The court below concluded correctly that

petitioners could not meet that test. Even assuming that

the proffered evidence was new and material and should

not have been discovered earlier, the court of appeals

held that it amounted to no more than “additional

404(b) is beside the point. Evidence that is admissible for one

purpose may not be excluded entirely because it would be

inadmissible if offered for some other purpose. United States v.

Abel, 469 U.S. 45, 56 (1984). Cameron’s testimony ahout Hazel’s

alleged sexual assault was offered to decribe the context of, or

offer an explanation for, the witness’s prior comment to

petitioners’ counsel, not to show motive, opportunity, intent, or

any other attribute of the defendant under Rule 404(b).

11

impeachment” of the testimony of the government’s

witnesses. Pet. App. 7a. That fact-bound issue does not

warrant further review.

Both courts below also held that petitioners were not

entitled to a new trial because the new proceeding

“would not probably produce a different result.” Pet.

App. 8a. Petitioners argue (Pet. 58-64) that in other

circuits they could have obtained a new trial by showing

only that a jury considering their new evidence “might

have” acquitted them. Pet. 59. Even the test petitioners

advocate, however, applies only if the trial court is

“reasonably well satisfied that the testimony given by a

material witness is false.” Jd. at 58-59 (citing Larrison

v. United States, 24 F.2d 82 (7th Cir. 1928)). Petitioners

offer no indication that either of the courts below

believed that a material witness had testified falsely.

Nor is there any indication that application of the “might

have” standard would have assisted petitioners: both

courts agreed that this “was not a close case.” Pet. App.

8a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

THOMAS E.. BOOTH

Attorney

FEBRUARY 1995