Opposition Brief — Guadalupe v. United States (No. 05-817)

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No. 05-817

In the Supreme Court of the Anited States

GLEN GUADALUPE, PETITIONER

v.

UNITED STATES OF / MERICA

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

PAUL D. CLEMENT

Solicitor General

Counsel of Record

WAN J. KIM

Assistant Attorney General

DENNIS J. DIMSEY

Conor B. DUGAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

Petitioner was convicted of corruptly persuading

another person, or attempting to do so, with the intent

to hinder, delay, or prevent her communication to a

federal law enforcement officer of information relating

to the commission or possible commission of a federal

offense, in violation of 18 U.S.C, 1512(b)(3).. The ques-

tions presented are as follows:

1. Whether the government presented sufficient

evidence that petitioner believed that the person he

persuaded (or attempted to persuade) might communi-

cate with federal authorities.

2. Whether the district court committed reversible

plain error in instructing the jury concerning the ele-

ments of the offense.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Arthur Audersen LLP ¥. United States, 1258. Ct.

See ES 00 deb od Cu bon guddbhashaneredie %, 10,12, 13

United States v, Applewhaite, 195 F 3d 67Y (8d Cir.

SED 6rd bob cs nee dcdavecet desea cb ex brhtheckeeaat 1

United States v. Baldyga, 238 F 3d G74 Uist Cir. 2000),

cert. denied, 534 US. 871 (2001) 2.2... eee. arene

United States vy. Bell, 1\3 F Ad VA45 Gd Cir.), cert.

denied, 522 US. WA CIMT) 2. ccc cc cece eee eens ae

United States v. Byrne, 435 F 3d 16 (st Cir.

DE Sink wen nsd de by ead dehies Whe canes .. +, 10,11

United States v. Causey, 185 F 3d 407 (Sth Cir. 1999),

cert. denied, 530 U.S. 1277 (2000)... ...... chive oe

United States v. Diaz, 176 F.3d 52 (2d Cird, cert.

denied, 528 U.S. 875 and 957 (1999)... 2... ee ee r

United States v. Emery, 186 F.3d 921 (8th Cir. 1999),

cert. denied, 528 U.S. 1130 (2000)... 26... ee eens i

United States vy. Olano, W7 US. 725 1998)... ~ oe

United States v. Perry, 335 F 3d 316 (4th Cir, 2005),

cert. denied, 40 US. 1165 (2004) oo. ee eee. r

United States v. Servata, 425 F.3d 886 (10th Cir.

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IV

(ases—Continued: Page

l nited States v. Stansticld, 1 F 3d 909 (8d Cir.

POPE bdo Cachan sc t¥ivetaeds tube cuvevesdorone keane 4

lwited States v. Veal, 153 F.3d 1233 (1th Cir. 199s),

cert. denied, 326 US. LIAT(IQYB) oo. cee ee eee 7

Wisnieusk: v. United States, 358 US. WOLUYST) oo... i)

Statutes:

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18 U.S.C. 1512¢¢2) (Supp. 12002) 2... eee eee 7,10

Jn the Supreme Court of the Cinited States

No. 05-N17

GLEN GUADALUPE, PETITIONER

v,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF AI'TRALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-l4a)

is reported at 402 F.3d 409.

JURISDICTION

The judgment of the court of appeals was entered on

March 31, 2005. A petition for rehearing was denied on

July 19, 2005 (Pet. App. 2la-22a). On October 14, 2005,

Justice Souter extended the time for filing a petition for

a writ of certiorari to and including December 1, 2005.

On November 28, 2005, Justice Souter further extended

the time for filing to and including December 16, 2005,

and the petition was filed on that date. The jurisdiction

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

2

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of Pennsylvania, peti-

tioner Was convicted on one count of corruptly persuad-

ing another person, or attempting to do so, with the in-

tent to hinder, delay, or prevent her communication to

a federal law enforcement officer of information relating

to the commission or possible commission of a federal

offense, in violation of 1s U.S.C. 1512(b)(3). He was sen-

tenced to 15 months of imprisonment, to be followed by

two years of supervised release. Pet. App. 1ba-20a. The

court of appeals affirmed. /d. at la-l4a.

1. On March 11, 1999, Reginald Steptoe and Cornell

Tyler, two correctional officers at the Curran Fromhold

Correctional Facility in Philadelphia, savagely beat

Dante Hunter, a prison inmate. Linda Burnette, a cor-

rectional lieutenant, observed the beating and ordered

the officers to stop, but they refused to do so. A short

time later, Burnette reported the beating to Winston

Boston, the shift commander, and then to petitioner, the

deputy warden. When Burnette talked to petitioner, he

initially told her that someone was going to “burn” for

what happened. When he learned of the identities of the

officers involved, however, petitioner then told her that

“they can't burn” because “they're my boys, my homies.”

Pet. App. da.

When Lieutenant Burnette later discussed the inci-

dent with petitioner and Captain Boston, petitioner said

that he had informed the officers involved that “someone

had tou come up with an injury to justify the amount of

force” used against the victim. Petitioner also in-

structed Burnette not to mention in her memorandum

on the incident that she had ordered the officers Lo stop.

Pet. App. 4a.

Because Lieutenant Burnette felt intimidated and

was afraid to “go against the grain,” she lied in her ini-

tial memorandum and in other statements about the

incident. Subsequently, however, she informed the war-

den of the prison that she had lied, and thereafter testi-

fied truthfully. Pet. App. 4a.

2. On July 26, 2001, a federal grand jury in the East-

ern District of Pennsylvania returned an indictment

charging petitioner with two counts of corruptly per-

suading other persons, or attempting to do so, with the

intent to hinder, delay, or prevent their communication

to a federal law enforcement officer of information relat-

ing to the commission or possible commission of a fed-

eral offense, in violation of 18 U.S.C. 1512(b)3). The

first count concerned petitioner's conduct toward Lieu-

tenant Burnette, and the second his conduct toward

Captain Boston. At the close of the evidence, the dis-

trict court instructed the jury, without objection, that

the government was required to prove, /vfer alra, that

“the defendant attempted to corruptly persuade another

person”; that “the defendant acted with the intent to

prevent the communication to a [federal] law enforce-

ment officer * * * of information relating to the com-

mission of a federal offense”; and that “such information

relates to the commission, or possible commission, of a

federal offense.” The trial court also instructed the jury

that “(bly its wording this statute does net depend on

the existence or imminency of a federal case or investi-

gation, but rather on the possible existence of a federal

crime and a defendant's intention to thwart an inquiry

into that crime.” The jury found petitioner guilty on the

first count, but not guilty on the second. Pet. App. 2a,

lGa-20a; CLA. App. 2260, 2261; Gov't C.A. Br. 4-5."

%. On appeal, petitioner contended (1) that the gov-

ernment had presented insufficient evidence that peti-

tioner believed that Lieutenant Burnette might commu-

nicate with federal authorities and (2) that the district

court had erred in instructing the jury on the elements

of the offense. The court of appeals affirmed. Pet. App.

la-lda.

a. With regard to petitioner's sufficiency-of-the-evi-

dence claim, the court reasoned that, to obtain a convie-

tion pursuant to 1S U.S.C. 1512(b)(3), the government

was required to prove, inter alia, that the defendant

believed that the person he persuaded (or attempted to

persuade) might communicate with federal authorities.

Pet. App. 5a. Citing its earlier decision in United States

Vv. Stansfield, 101 F.3d 909 (3d Cir. 1996), the court ex-

plained that “[t|his * * element may be inferred

from the fact that the offense was federal in nature, plus

‘additional appropriate evidence.’” Pet. App. 5a. The

court added that “an example of this ‘additional appro-

priate evidence’ is that the defendant had actual know}-

edge of the federal nature of the offense.” /bid. And

the court noted that, in its subsequent decision in

United States v. Applewhaite, 195 F.3d 679 (8d Cir,

199%), it had held that the government need only prove

that the defendant intended to influence an investigation

that happened to be federal. Pet. App. 7a.

The court of appeals then concluded that the gevern-

ment had met its burden of proof either under the stan-

© Petitioner was tried together with the officers whe had engaged

in the beating. Those offieers were both convieted of depriving another

person of his civil rights, in vielwtion of IS ULS.C. 242. Gov't CLA, Br.

1

f

”

dard of Stansfield, bevause “there is ‘additional appro-

priate evidence’ that [petitioner] knew or should have

known that Burnette might communicate with federal

officials based on his position and experience as a prison

administrator,” or under the standard of Appleswhaite,

because “| petitioner] intended to influence an investiga-

tion which later became federal.” Pet. App. 9a. The

court explained that “the evidence * * * supports an

inference that | petitioner] believed that Burnette might

communicate with federal authorities.” /bid. Noting

that petitioner was an experienced prison administrator,

the court reasoned that, “|blecause of his position and

experience, [petitioner] had knowledge, or should have

had knowledge, that the beating of an inmate in a penal

institution may be considered a federal civil rights viola-

tion,” id. at 10a, and “that federal officers were highly

likely to be involved at some point in the investigation”

(insofar as “federal authorities typically become in-

volved” in investigations of similar incidents), id. at lla

& n.3. The court concluded that the jury could reason-

ably infer “that [petitioner] had actual knowledge of the

federal nature of the offense or that ‘Burnette's informa-

tion might ultimately be communicated to officers who

happen to be federal.” 7d. at ila.

bh. With regard to petitioner's instructional-error

claim, the court of appeals first noted that, because peti-

tioner had failed to object to the jury instructions at

trial, his claim was reviewable only for plain error. Pet.

App. 2a n.1. The court of appeals then rejected peti-

tioner’s contention that the district court had committed

reversible plain error by failing to provide a definition

for the statutory phrase “corruptly persuades.” /d. at

12a. The court of appeals reasoned that, even assuming

that the failure to define “corruptly persuades” was er-

Bete

'

6

roneous, “there is nu evidence that this error had a prej-

udicial |e |ifect on the jury's deliberations so as tu pro-

duce a miscarriage of justice.” /d. at lZa-1l3a. The court |

noted that “[petitioner] does not contend that there is |

insufficient evidence that his conduct constituted cor-

rupt persuasion within the meaning of the statute,” and

added that “[t he evidence is sufficient that | petitioner]

instructed Burnette to lie to cover up the incident.” /d

at loa.

The court of appeals also rejected petitioner's con-

tention that the district court had erred by “improperly

explain|ing| the extent to which federal involvement

must be present.” Pet. App. 12a. The court of appeals

concluded that the district court's instructions on that

issue Were not erreneous because they “comportied]

with the instructions approved by this Court in Stans-

field.” Id. at VSa.

ARGUMENT

Petitioner contends that the court of appeals erred

by concluding that the government presented sufficient

evidence that petitioner believed that the person he per-

suaded (or attempted to persuade) might communicate

with federal authorities (Pet. 10-19) and that the district

court did net commit reversible plain error in instruet-

ing the jury on the elements of the offense (Pet. 19-26).

The court of appeals’ decision does not conflict with any

decision of this Court and implicates no conflict among

the courts of appeals. @urther review is therefore un-

warranted,

l. Asis relevant here, the provision at issue in this |

case, IS ULS.C. 151200)03), imposes criminal sanctions on

wny person Whe “knowingly “ * * corruptly persuades

another person, or attempts to dose, * * © with intent

-

‘

to * * * hinder, delay, or prevent the communication

to a law enforcement officer or judge of the United

States of information relating to the commission or pos-

sible commission of a Federal offense.” Another subsec-

tion of the same statute, 18 U.S.C. 1512(¢)2) (Supp. I

2002), provides that, in a prosecution under Section

1512(b)(3), “no state of mind need be proved with re-

spect to the circumstance * * * that the law enforce-

ment officer is an officer or employee of the Federal

Government.”

Consistent with the language of those provisions, the

courts of appeals have repeatedly held that, in a prose-

cution under Section 1512())(3), the government need

not prove that the defendant believed that the person he

persuaded would communicate with federal authorities

(or that the defendant knew that a federal investigation

was ongoing or that the offense at issue was federal).

See, e.g., United States v. Byrne, 435 F.3d 16, 25 st

Cir. 2006); (/nited States v. Serrata, 425 F.3d 8x6, 897-

X98 (10th Cir. 2005); United States v. Perry, 335 F 3d

$16, 321-322 (4th Cir. 2003), cert. denied, 540 U.S. 1185

(2004); United States v. Emery, 186 F.3d 921, 925 (sth

Cir. 1999), cert. denied, 528 U.S. 1130 (2000); United

States v. Diaz, 176 F.3d 52, 90-91 (2d Cir.), cert. denied,

528 US. 875 and 957 (1999); United States v. Veal, 158

F.3d 1233, 1250 (11th Cir. 1998), cert. denied, 526 U.S.

1147 (199%).

Petitioner contends (Pet. 15-16) that the court of ap-

veals’ decision conflicts with the decision in United

States v. Canscy, DSS F Ad 407 (oth Cir. 1999), cert. de-

nied, 530 U.S. 1277 (2000)- In Causey, the Fifth Circuit

Thi- Court denied cortiorari when a similar claim Wis made mn the

petition fikal in Pevrg. « J UAL See Dr mn Opp at > 10. /% eva. lb wited

8

invalidated convictions for witness tampering under 18

U.S.C. 1512(aX1(C), which contains a similar intent

requirement to that in 18 U.S.C. 1512(b)(3). It is by no

means clear, however, that the Fifth Circuit employed

a (lifferent legal standard in Causey than the court of

appeals did in this case. At the outset, the Fifth Circuit

acknowledged that “there is no requirement that the

Government prove that the defendants believed the law

enforcement officials to be federal.” 185 F.3d at 421.

Instead, the Fifth Circuit reversed the convictions at

issue because it found “no evidence in the record that

would support an inference” that the defendants in-

tended to prevent the victim from “pursuing her com-

plaint beyond the New Orleans Police Department

* * * and communicating with authorities who were in

fact federal officers.” /d. at 423. In reaching that con-

clusion, the Fifth Circuit relied on the Third Circuit's

decision in United States v. Bell, 113 F.3d 1345 (Alito,

J.), cert. denied, 522 U.S. 984 (1997), which (in turn rely-

ing on that court's earlier decision in Stansfield) had

held that the fact that a defendant believed that the per-

son he persuaded might communicate with federal au-

thorities “may be inferred by the jury from the fact that

the offense was federal in nature, plus appropriate evi-

dence.” Causey, 185 F 3d at 422 (quoting Bell, 113 F.3d

ut 134Y).

Like the Fifth Circuit in Causey, the court of appeals

in this case cited the standard from its earlier decisions

in Bell and Stansfield. Pet. App. 5a-6a. Unlike the Fifth

Circuit, however, the court concluded that the govern-

ment had satisfied that standard, on the ground that

there was “additional appropriate evidence” to suggest

States (Neo, 08-722).

9

that the defendant believed that the person he at-

tempted to persuade might communicate with federal

authorities. /d. at 9a. Specifically, the court noted that

petitioner was an experienced prison administrator and

that, as a result, petitioner either knew or should have

known both that the underlying offense was potentially

a federal one and that federal officials were likely to

become involved in the investigation. /d. at 10a-lla. On

that basis, the court concluded that the jury could rea-

sonably infer “that | petitioner] had actual knowledge of

the federal nature of the offense or that Burnette’s in-

formation might ultimately be communicated to officers

who happen to be federal.” /d. at lla. To the extent

that the Fifth Cireuit in Causey applied the same “addi-

tional appropriate evidence” standard but merely

reached a different result on the facts of that case, there

is no circuit conflict that warrants this Court's review.”

Petitioner also contends (Pet. 17-19) that the court of

appeals’ “approach” in this case “differs” from that

taken by this Court in Arthur Andersen LLP vy. United

States, 125 S. Ct. 2129 (2005). In Arthur Andersen, the

Court reversed the conviction of an accounting firm for

corruptly persuading persons with the intent to cause

them to withhold documents from, or alter documents

* The court of appeals did suggest that, in its decision in Apple-

whaite, it had articulated a less stringent test than in its earlier decision

in Stansfield. Pet. App. 7a. The court of appeals, however, ultimately

concluded that the yevernment had made the requisite showing under

either test. Jd. at 9a. To the extent that petitioner contends that the

court of appeals’ decision in this case nevertheless conflicts with Apple-

whaite and Stausfield, see, og, Pet. 12 (asserting that “the court's

decision is in direct conflict with its earlier decisions discussing this

very subject”), that contention does not justify further review, because

this Court does not sit to resolve intra-circuit conflicts. See Wisnrevesks

v. Uvited States, 353 US. 901, 902 (1957) (per curt).

10

for, an official proceeding, in violation of 18 U.S.C.

1512(b)2)A) and (B). The Court held, in part, that the

jury instructions in that case were flawed because the

jury was not required to find any nexus between the

“corrupt persuasion” at issue and a particular “official

proceeding.” 1258, Ct. at 2136-2137,

This ease is readily distinguishable from Arthur

Andersen, because the provision at issue in this case, 18

U.S.C. 1512(b)(3), does not require interference with an

“official proceeding.” Instead, Section 1512(b)(3) pro-

hibits a person from corruptly persuading another per-

son with the intent to interfere with the “communication

to a [federal] law enforcement officer * * * of informa-

tion relating to the commission or possible commission

of a federal offense.” In Arthur Andersen, there was no

question that the “official proceeding” at issue was a

federal one: viz., an investigation by the Securities

and Exchange Commission. See, e¢.g., 125 S. Ct. at 2132.

Arthur Andersen therefore does not bear on the ques-

tion of what showing is required under Section

1512(b)(3) to demonstrate that a defendant believed that

the person he persuaded might communicate with fed-

era] authorities.

At least one court of appeals has considered (and

rejected) the same argument concerning Arthur Ander-

seu that petitioner advances here. In Byrue, the defen-

dant contended that Arthur Andersen required the

First Circuit to “reassess” its earlier decisions holding,

inter alia, that it was sufficient under Section 1512(b)(3)

to demonstrate that “the possibility existed that [the

witness’s| communication would eventually occur with

federal officials.” 435 F.3d at 23 (quoting United States

v. Baldyga, 233 F.3d 674, 680 (ist Cir. 2000), cert. de-

nied, 534 U.S. 871 (2001)). The court reasoned that, in

+ ere tee 9 8 RRs em ee 8 eR atm SOR reer

ll

light of the fact that Section 1512(g)(2) “explicitly dis-

claims” any requirement that the defendant know that

the communication at issue would be made to a federal

official, “{t|here is simply nothing in Arthur Andersen

that helps the defendant.” Jd. at 25." So too here, noth-

ing in Arthur Andersen conflicts with the court of ap-

peals’ holding that the government presented sufficient

evidence that petitioner believed that the person he per-

suaded might communicate with federal authorities.

2. At trial, the district court instructed the jury,

without objection, that the government was required to

prove, inter alia, that “the defendant attempted to cor-

ruptly persuade another person,” C.A. App. 2260, and

further instructed the jury that “{b]y its wording this

statute does not depend on the existence or imminency

of a federal case or investigation, but rather on the pos-

sible existence of a federal crime and a defendant’s in-

tention to thwart an inquiry into that crime,” /d. at 2261.

Petitioner renews his contention (Pet. 19) that the

district court erred by “failfing] to provide any defini-

tion of the words ‘corruptly persuade’” and by “failfing]

to properly instruct the jury regarding petitioner's state

of mind concerning the federal nexus required under the

statute.” Because petitioner failed to object to the jury

instructions, however, his claim is reviewable only for

plain error.

Under United States v. Olano, 507 U.S. 7245 (1995),

when a defendant forfeits his claim in the trial court,

relief under the plain-error rule is unavailable unless the

In Byrne, the court also “express|ed| * * * doubts” as to whether

“Arthur Andersen requires a heightened showing of 4 nexus in a

§ 1512(b)3) prosecution{ | between the intent to hinder communication

and a particular law enforcement agency.” 435 F.3d at 25.

12

defendant shows, inter alia, that the errvr affects his

substantial rights and seriously affects the fairness, in-

tegrity, and public reputation of judicial proceedings.

fd. at 734-737. The court of appeals correctly held that

petitioner could not meet the Olawo standard because he

could not show prejudice (and thus an effect on his sub-

stantial rights) from the district court’s failure to define

“corruptly persuades” and because the district court’s

instructions concerning the “federal nexus” requirement

were not erroneous. Pet. App. 12a-13a.

Petitioner contends (Pet. 20-26) that this Court’s

decision in Arthur Andersen suggests that the district

court's instructions were invalid. That contention lacks

merit. With regard to the failure to define “corruptly

persuades,” Arthur Andersen held, in part, that instruc-

tions that “diluted the meaning of ‘corruptly’ so that it

covered innocent conduct” were invalid. 125 S. Ct. at

2136. Arthur Andersen did not hold that instructions

that failed to define the phrase “corruptly persuades”

were necessarily invalid—and even if it had, petitioner

fails to demonstrate that he suffered prejudice from any

instructional deficiency. There was ample evidence to

prove that petitioner instructed Lieutenant Burnette to

lie in order to cover up the beating. Pet. App. 13a. Ar

thur Andersen neld that knowing corrupt persuasion

requires “consciousness of wrongdoing.” 125 S. Ct. at

2136. Intentionally ordering subordinates te lie in order

to conceal an unjustified beating clearly reflects such

CONSCIUSNESS.

With regard to the instructions concerning the “fed-

eral nexus” requirement, petitioner's argument fails for

the same reason as his argument concerning the suffi-

ciency of the evidence. Arthur Andersen held, in part,

that the instructions at issue were invalid because the

13

jury was not required to find any nexus between the

“corrupt persuasion” at issue and a particular “official

proceeding,” 125 S. Ct. at 2136; it did not speak tv the

question of what the government was required to show

under Section 1512(b)(3) in order to establish that a de-

fendant believed that the person he persuaded might

communicate with federal authorities. In no respect,

therefore, is the court of appeals’ decision inconsistent

with Arthur Andersen.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Paul D. CLEMENT

Solicitor General

Wan J. Kim

Assistant Attorney Geveral

DENNIS J. DIMSEY

CoNnok B. DUGAN

Attorneys

MARCH 2006