Opposition Brief — Prosperi v. United States

No. 99-2078

+

'

Jn the Supreme Court of the Dnited States

ARNOLD PAUL PROSPERI, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

KARIN B. HOPPMANN

Attorney

| Department of Justice

Washington, D.C. 20580-0001

( 202) UY h-221 7

. —

Oo EEEEEE—EIEEaoaooOooeeO

QUESTIONS PRESENTED

1. Whether Federal Rule of Evidence 606(b) pre-

vents a district court from inquiring into allegations of

juror misconduct before the jury reaches a verdict.

2. Whether the district court unconstitutionally co-

erced the jury to return a verdict of guilty when, after

having already instructed the jurors not to surrender

their conscientiously held beliefs, the court asked the

jury to “continue to deliberate.”

3. Whether the statutory definition of “counter-

feited” under 18 U.S.C. 513 includes a “similitude”

requirement or instead merely requires that the docu-

ment “purport[] to be genuine.”

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Allen v. United States, 164 U.S. 492 (1896) ...ccsccccssssssessees 6, 15

Brasfield v. United States, 272 US. 448 (1926) ............... 15

DeGrandis v. Fay, 335 F.2d 173 (2d Cir. 1964) sees... 19

Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

oi a, SI ane A Aa ne 23

Francis v. Franklin, 471 U.S. 307 (1985) cocccccccceccoccseeoeeees. 17

Grooms v. Wainwright, 610 F.2d 344 (5th Cir.),

Cert. denied, 445 U.S. 953 (1980) .......ccccc.ceccccecesccoseecesoeeesese, 11

Jenkins v. United States, 380 U.S. 445 SII chicmadiidenaniads 15

Lowenfield v. Phelps, 484 U.S. 231 (1988) cesses 15, 16, 17

Morisette v. United States, 342 U.S. 246 ( rR 21

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318

ER SESEET RATT ECR Oe cea Ie PCN Ry ae 22

Remmer v. United States, 347 U.S. 227 ( IPT Siscssbincintnssoncs 11

Smalls v. Batista, 191 F.3d 272 (2d Cir. 1999) ceccccccccssese 18, 19

Thompson v. Cain, 161 F.3d 802 (5th Cir. 1998) oo... 14

Turner v. Louisiana, 379 U.S. 466 (1965) ceccccccccccccssooesee.., 11

United States v. Akers, 215 F.3d 1089 (10th Cir.

oc OE NSE LETTE ALS ATN St ETT 21

United States v. Black, 843 F.2d 1456 (D.C. Cir.

eh SEATS TT TL 15

United States v. Chiantese, 582 F.2d 974 (5th Cir.

1978), cert. denied, 441 U.S. 922 (1979) voccccccccccccccscecccoeoees. 11

United States v. Coffman, 94 F.3d 330 (7th Cir.

1996), cert. denied, 520 U.S. 1165 (1997) ...... RES AEA nw 16-17

(IIT)

Cases—Continued:

United States v. Davis, 15 F.3d 1393 (7th Cir.),

Curt, Gomer, GIS UF, BOG (ROG) csenccccensnessocesnncssnsivosscnesccens

United States v. Davis, 1 F.3d 1014 (10th Cir.

RT siiissscaisiaiasceseschcslieeii ican li lcci esibania cia

United States v. Estacio, 64 F.3d 477 (9th Cir.

1995), cert. denied, 517 U.S. 1121 (1996) ooo eee

United States v. Fermin, 32 F.3d 674 (2d Cir.

1994), cert. denied, 513 U.S. 1170 (1995) ............cecssssesesees

United States v. Gabay, 923 F.2d 1536 (11th

Coals TETOTED cssbsievecsierieeeniiiiensensdaticnsnietabatieicbelaciin te ianianiacecbectdadanieiand

United States v. Hanley, 190 F.3d 1017 (9th Cir.

EMAL ES AIO eSB NR en ETOSHA Ce

United States v. Heller, 785 F.2d 1524 (11th Cir.

SIDUNTED Sscinileeauiiaaaueerhintittvieiatcceiui lite celchaniinnitp acs dabdhdatietstanlaiahiiteins

United States v. Hernandez, 921 F.2d 1569 (11th

Cir.), cert. denied, 500 U.S. 958 (1991) ........... ce ceseseeeees

United States v. Herndon, 156 F.3d 629 (6th Cir.

USTED saistisininssiniinianitehceideciteceieaetibcaine bbalibiondelieeaptaathenpatalindinidaiia

United States v. Kelly, 204 F.3d 652 (6th Cir.),

Cort, Gemied, 190 S, Cb. ZIES COG). cccccicceiccnscsciscscessosscicsoven

United States .+.--Laemere, 980 F.2d 506 (8th Cir.

SUITED: <hicstcsibineesishdess esi iinlaaiabanpiehdciada us idetiedsibadbtinendtdsaii

United States v. Mason, 658 F.2d 1263 (9th Cir.

TTEEL P isichiviteinieisieegaieenentiesieeeadionsnbbaianiiccdtalbiiabesiienibiad ode dtaaiameessadesdainmtaains

United States v. McVeigh, 153 F.3d 1166 (10th Cir.

1998), cert. denied, 526 U.S. 1007 (1999) wu. eeeeseeeeeees

United States v. Price, 361 U.S. 304 (1960) ou... eee

United States v. Resko, 3 F.3d 684 (3d Cir. 1993) ............

United Siates v. Rogers, 289 F.2d 433 (4th Cir.

United States v. Rowe, 906 F.2d 654 (11th Cir.

NESTED withsciesbsatesssnginicoisbecieben tides tanbiialiamtenabaabiaibidibdabiaanaseineanedindi

United States v. Sababu, 891 F.2d 1308 (7th Cir.

PRR Eeprenmeer ner mr en Tee I knoe wT Ne Ne ta CA RR Ur TTR

United States v. Scott, 547 F.2d 334 (6th Cir.

SEITIEEL I icectiphieelenapieteastabiaptdisilaly tienda ini eaiaieihanindieninincaige

V

Cases—Continued: Page

United States v. Wallace, 213 F.3d 627 (2d Cir.

SD visttsinsciitinssntnaneeuticcenensiitiliaeidadladmlenbiibdanigtamaailpdachibigtaeiiia 19

United States v. Webster, 108 F.3d 1156 (9th Cir

ROI F insvscscxssiiwsticesschscconot either: ddaademeicatadaiiebinidbachiaiecladaataseit 21

United States v. Yonn, 702 F.2d 1341 (11th Cir.),

curt. Gpmted, 666 U2. DEG CEE) ctecisesticnnsstectineniencinistirnenuias 10

Wisniewski v. United States, 353 U.S. 901 (1957) ........... 10

Young v. Herring, 938 F.2d 543 (5th Cir. 1991),

cert. denied, 503 U.S. 940 (1992) ....cccccccscccssssessccsnscvssscoessoses 15

Statutes, rules and regulation:

BD. TE OU: cenicenitinincitnstctsitncssteicinatcitaanitaspeaianticlinaaiiilisihie 21, 22

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+ eae To | SERRE enmnennny ere we ~atiitiinaalaidianiinndan 2,3

FE, Few CAR, FBC venisciteinctecisiecscninceaaegasensatiiiininibaiiaminns 7

ee, Fe. er ee ED ° Siceniseteninsinierensanenintniienas 4,5, 8, 10, 12, 13, 14

United States Sentencing Guidelines § 2B5.1 oes 21

Miscellaneous:

34) Comm, Bec. BEGG CIGD escecicesiniensenseserisnniiiiernnesnitinineitenniostons 24

S. Rep. No. 225, 98th Cong., Ist Sess. (1983) ......cssesessseeees 22

Ah ae 8

ene

Jn the Supreme Court of the United States

No. 99-2078

ARNOLD PAUL PROSPERI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-23a)

is reported at 201 F.3d 1335. The opinion of the district

court (Pet. App. 24a-42a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 28, 2000. A petition for rehearing was denied

on March 30, 2000 (Pet. App. 43a). The petition for a

writ of certiorari was filed on June 26, 2000. The

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

1254(1).

(1)

2

STATEMENT

Petitioner was convicted following a jury trial in the

United States District Court for the Southern District

of Florida on two counts of filing false tax returns, in

violation of 26 U.S.C. 7206(1), and three counts of utter-

ing counterfeit securities, in violation of 18 U.S.C.

513(a). The district court granted petitioner’s post-

verdict motion for a judgment of acquittal on the coun-

terfeiting counts, and sentenced petitioner to 36 months

of imprisonment and one year of supervised release on

the tax counts. The court of appeals affirmed peti-

tioner’s tax convictions, but reversed the judgment of

acquittal with respect to petitioner’s counterfeiting

convictions.

1. In 1979, petitioner, an attorney, began repre-

senting Patrick Donovan, an elderly Irish investor, in

connection with Donovan’s investments in the United

States. In 1987, petitioner began embezzling large

sums of money from Donovan. In particular, petitioner

diverted to his own use proceeds from the sale of a

golf course held by Donovan’s offshore corporation,

Amaretto. Petitioner then presented Donovan with

fake “certificates of deposit” (CDs) and alleged corre-

spondence from Citibank Corporation and J.P. Morgan

purporting to show that the proceeds had been rein-

vested in those instruments. Gov’t C.A. Br. 5-6.

In 1992, the Internal Revenue Service (IRS) began

investigating the golf course sale because no tax return

had been filed for the proceeds. When the IRS con-

tacted petitioner as Amaretto’s agent, petitioner

claimed that no taxes were due. The IRS, however,

discovered bank records showing that~a substantial

portion of the proceeds went directly to petitioner.

Petitioner then claimed that Donovan’s corporation had

3

loaned him the funds. He refused to provide the IRS

with requested documents and information, and refused

to identify Amaretto’s beneficial owner. Gov’t C.A. Br.

10-11. When the IRS notified Donovan that the golf

course proceeds had gone to petitioner, Donovan filed a

lawsuit against petitioner and began cooperating with

the IRS, turning over the fake CDs and other docu-

ments petitioner had given him. /d. at 11-13.

Petitioner was convicted of three counts of uttering

counterfeit securities, based on the fake CDs, in vio-

lation of 18 U.S.C. 513, and two counts of filing false tax

returns, based on his failure to pay taxes on the di-

verted golf course proceeds, in violation of 26 U.S.C.

7206(1). At petitioner’s trial, the government called

numerous witnesses to testify about petitioner’s embez-

zling activities. Petitioner’s employees, for example,

testified to having seen petitioner falsifying documents.

The government also called representatives of Citibank

and J.P. Morgan, who testified about the appearance of

genuine certificates of deposit and identified features of

the fake CDs that made them look like genuine certifi-

cates. Gov’t C.A. Br. 14. Petitioner took the stand in

his own defense and claimed that Donovan had ap-

proved his removal of monies from Donovan’s invest-

ment portfolio, and that Donovan himself had forged

the fake CDs. Id. at 15-16.'

2. On November 3, 1997, the district court submitted

the case to the jury. At that time, the one remaining

alternate was excused.

! Based on petitioner’s testimony at trial, the district court in-

creased his sentence for obstruction of justice. Gov't C.A. Br. 16 & '

nl.

a. On November 5, after the jury had deliberated for

one full day, petitioner’s counsel informed the court

that he had twice contacted the excused alternate.

Counsel said that the alternate believed that one of the

sitting jurors had “made up his mind from day one and

* * * sort of palled around with” another juror, whom

the alternate suspected was “of similar mind.” Counsel

also stated that the excused alternate thought the pro-

government juror had somehow “engineered the selec-

tion of a foreperson.” Pet. App. 49a. Counsel then in-

formed the court that between his first and second

conversations with the excused alternate, the alternate

had spoken with one of the sitting jurors, Ms. Budd.

According to counsel, the alternate reported that Ms.

Budd was pro-defense and was “being pummeled into

submission” by a jury that was divided 10 to 2 in favor

of conviction. Jd. at 50a. |

Petitioner’s counsel moved for removal of the jurors

whom the alternate suspectei of favoring the govern-

ment, and for an investigation of the sitting jury;

counsel declined to consent, however, to trial before a

jury of less than twelve if his motions were granted.

The court admonished petitioner’s counsel, stating that

it had not “intend[ed] that you continue to talk with

[the alternate] * * * [about] anything going on in the

jury room,” and noted that the alternate may have

given “improper” advice to the sitting juror. The court

also referenced Federal Rule of Evidence 606(b), which

renders juror testimony about intrinsic influences on

deliberations inadmissible to impeach the verdict.”

= Rule 606(b) states:

Upon an inquiry into the validity of a verdict or indictment, a

juror may not testify as to any matter or statement occurring

5

Although petitioner argued that the Rule did not apply

where the jury had not yet rendered its decision, the

court denied petitioner’s motion for a mistrial. Pet.

App. 50a-54a. Instead, the court sent a cautionary note

to the jury, instructing the jurors not to discuss the

case with anyone else or while outside the jury room.

Id. at 54a-55a.

Later that afternoon, petitioner’s counsel again ap-

proached the court. He stated that two unidentified

persons had observed Ms. Budd engaged in “animated

heated discussion” with the juror whom the alternate

had accused of partiality. Counsel again moved for an

evidentiary hearing and a mistrial, and the court again

denied the motions. The court observed that the sub-

stance of the “animated” discussion was unknown, and

stated that Rule 606(b) would prevent the court from

taking a juror’s statement about intrinsic influences.

Pet. App. 65a-69a.

b. Later that same day, the jury sent the court a

note.* The court informed the parties that the jury had

during the course of the jury’s deliberations or to the effect of

anything upon that or any other juror’s mind or emotions as

influencing the juror to assent to or dissent from the verdict or

indictment or concerning the juror’s mental processes in

connection therewith, except that a juror may testify on the

question whether extraneous prejudicial information was im-

properly brought to the jury’s attention or whether any

outside influence was improperly brought to bear upon any

juror. Nor may a juror’s affidavit or evidence of any statement

by the juror concerning a matter about which the juror would

be precluded from testifying be received for these purposes.

Fed. R. Evid. 606(b).

3 The jury had been deliberating for less than two days. See

34 Tr. 4791 (jury released at 4:20 p.m. on November 3, to be

6

a verdict on the counterfeiting counts but was “hung up

on {the tax counts] and they say there is no change in

the near future.” Pet. App. 64a-65a. The court con-

cluded that the situation did not warrant resort to an

Allen charge, see Allen v. United States, 164 U.S. 492

(1896), and instructed the jury to “continue to deliber-

ate” on the tax counts. Pet. App. 65a. Petitioner’s

counsel moved for a mistrial, and the court denied the

motion; at that point, the court again recessed. /bid.

The next morning, the court interviewed (in open

court, under oath) the alternate with whom petitioner’s

counsel had spoken. Pet. App. 75a-8la. The alternate

admitted that she and Ms. Budd had exchanged phone

calls during the jury’s deliberations. She stated,

however, that the gist of the calls was that Ms. Budd

was upset, and that she (the alternate) simply told Ms.

Budd to “stand by what she believed in.” Jd. at 77a-78a.

Petitioner’s counsel moved for further interrogation of

the alternate about the sitting jurors’ opinions of the

case before deliberations, and their access to newspaper

articles and other materials during trial. The court

denied the motions, stating that “[t]hat goes into the

prohibited areas of jury deliberations. The only thing

I am concerned about is any extraneous information

going into the jury room [from the alternate] and from

the defendant's standpoint they certainly have no

complaint because apparently she was urging her to

stand by her position.” Jd. at 75a-80a.

That afternoon, the jury returned a verdict of guilty

on all counts. The court polled the jury and all jurors

confirmed the verdict. Pet. App. 8la-838a.

dismissed for the day at 4:30 p.m.) and Pet. App. 64a (court

informed counsel of jury note at 3:00 p.m. on November 5).

7

c. Following the jury’s verdict, the district court

first denied but then on reconsideration granted peti-

tioner’s motion under Fed. R. Crim. P. 29(b) for a

judgment of acquittal on the counterfeiting counts.

Pet. App. 24a-42a. The district court concluded that, al-

though 18 U.S.C. 513(¢c) contains a definition of the

word “counterfeited,” the statute also incorporates

the common-law definition, which requires “similitude”

between the allegedly counterfeit security and the

genuine article. Pet. App. 27a-28a. Examining the

evidence in this case, the court concluded that it could

not say, as a matter of law, that similitude was lacking.

Id. at 37a. But it concluded that, because the govern-

ment had not introduced a genuine CD to which the

jury could compare the fake ones, the government had

not produced sufficient evidence of similitude. /d. at

37a-40a.

4, The court of appeals affirmed in part and reversed

in part. Pet. App. la-23a. First, the court of appeals

upheld the district court’s decision not to conduct fur-

ther investigation of the sitting jury, holding that

“Celven if the district court underestimated the scope of

its discretion under Rule 606(b), the court’s ultimate

decision not to investigate allegations of misconduct

that were entirely endemic to the deliberations was not

an abuse of its discretion.” Jd. at 7a. Second, the court

upheld, as non-coercive, the district court’s instruction

that the jury “continue to deliberate” in an effort to

reach a verdict on all counts. Jd. at 7a-8a.

The court of appeals reversed the judgment of

acquittal on the counterfeiting counts, concluding that

Section 513 does not contain a “similitude” requirement.

Pet. App. 9a-22a. Beginning with the language of the

statute, the court of appeals explained that Section 513

defines “counterfeited” without reference to “simili-

8

tude”; instead, Section 513(c) defines documents as

counterfeit if they purport to be genuine, when in fact

they are not. /d. at 9a. That construction, moreover,

was consistent with Congress’s purpose of addressing

“the increasing production of counterfeited documents

that are not as generally recognizable as currency,

such as CDs,” because citizens who do not know what

CDs look like would not be protected by a statute that

addresses only documents that in fact resemble genuine

CDs. Jd. at 9a-10a. The court found further support for

its construction in the Sentencing Guidelines, which

define “counterfeited” in the same terms. /d. at 14a.

ARGUMENT

1. Petitioner first contends (Pet. 11-18) that the

courts of appeals are divided on the proper scope of

Federal Rule of Evidence 606(b), which addresses the

extent to which, “[u]pon an inquiry into the validity of a

verdict or indictment,” a juror may “testify as to any

matter or statement occurring during the course of the

jury’s deliberations.” Fed. R. Evid. 606(b). Under Rule

606(b), a juror may not testify about the jury’s delibera-

tions during such an inquiry unless the inquiry concerns

“whether extraneous prejudicial information was im-

properly brought to the jury’s attention or whether any

outside influence was improperly brought to bear upon

any juror.” J/bid. In this case, petitioner argues, the

court of appeals improperly applied Rule 606(b) to

preclude a pre-verdict inquiry into juror misconduct,

even though Rule 606(b) by its terms addresses juror

testimony only in “an inquiry into the validity of a

verdict.” See Pet. 11.

a. As an initial matter, that issue is not properly

presented by this case, because the court of appeals did

not address the scope of Rule 606(b). To the contrary,

9

the court of appeals declined to reach the district

court’s construction of that rule, making it clear that,

“lelven if the district court underestimated the scope of

its discretion under Rule 606(b), the court’s ultimate

decision not to investigate allegations * * * that were

entirely endemic to the deliberations was not an abuse

of its discretion.” Pet. App. 7a (emphasis added), 2bid.

(decision was “within its discretion”). Thus, contrary to

petitioner’s assertions, the court of appeals did not up-

hold “the district court’s conclusion that it lacked dis-

cretion under Rule 606(b) to conduct a pre-verdict

hearing on the allegations of ‘internal’ juror miscon-

duct.” Pet. 11, 15 (emphasis added). Instead, the court

of appeals merely concluded that, under the facts of this

case, the district court did not abuse the discretion it

had. In that respect, the court’s holding resembles that

of the court in United States v. Sababu, 891 F.2d 1308

(7th Cir. 1989), which petitioner cites (Pet. 14) as con-

flicting with the decision below. In Sababu, the

Seventh Circuit found harmless the district court’s

statement that “he was barred from questioning the

jury by [Rule 606(b)],” because “(t]he court had other

valid reasons for refusing to question the jury.” 891

F.2d at 1333, 1335.* :

4 The court of appeals did not express the view “that a district

court ordinarily would err if it elects to investigate any pre-

verdict allegation of improper ‘internal’ influences,” Pet. 12 (some

emphasis added). The court of appeals merely stated that such an

investigation “may have invited reversible error.” Pet. App. 7a

(emphasis added). The observation that error might occur if an

investigation were conducted is not the same as a holding that the

investigation itself would have been reversible error. It simply

acknowledges that intrusion into the jury by investigation may

inadvertently prejudice its deliberations. See, e.g., Sababu, 891

10

That understanding of the decision in this case,

moreover, comports with earlier Eleventh Circuit deci-

sions, which recognize that trial courts do have dis-

cretion to interview jurors about intrinsic influences on

their deliberations before verdict, notwithstanding

Rule 606(b). See United States v. Yonn, 702 F.2d 1341,

1345 (11th Cir.) (recognizing the “wide latitude afforded

the trial judge” in conducting a pre-verdict investi-

gation of jury misconduct), cert. denied, 464 U.S. 917

(1983); United States v. Gabay, 923 F.2d 1536, 1541-

1542 (11th Cir. 1991) (upholding pre-verdict voir dire of

jurors, conducted under “the procedures outlined in

United States v. Yonn,” in response to allegations of

premature deliberation); United States v. Heller, 785

F.2d 1524, 1525-1526 (11th Cir. 1986) (reversing con-

viction based on jurors’ pre-verdict testimony as to alle-

gation of racial slurs during deliberations); cf. United

States v. Hernandez, 921 F.2d 1569, 1577 (11th Cir.)

(upholding, without reference to Rule 606(b), the dis-

trict court’s decision not to investigate allegations of

jurors sleeping during trial), cert. denied, 500 U.S. 958

(1991). The decision in this case does not purport to

overrule that line of cases.’ It merely finds no abuse of

discretion on these facts.

The court of appeals’ recognition of the distinction

between “extrinsic” and “intrinsic” influences on the

jury does not compel the conclusion that the court

incorporated Rule 606(b) into the pre-verdict context.

F.2d at 1334 (noting that investigation could cause jurors to attach

undue importance to an issue or incident).

® Any claim of intra-circuit conflict is, in any event, for the

court of appeals to resolve. See Wisniewski v. United States, 353

U.S. 901, 902 (1957) (per curiam).

11

See Pet. 12. As this Court has explained, alleged ex-

trinsic influences on the jurors implicate the defen-

dant’s right to be tried exclusively on evidence ad-

mitted at trial. Turner v. Louisiana, 379 U.S. 466, 472

(1965). See also Remmer v. United States, 347 U.S. 227

(1954). Because of that, a court has less discretion

not to conduct an investigation where there is a suffi-

ciently colorable showing of “extrinsic” influence.

United States v. Rowe, 906 F.2d 654, 656 (11th Cir.

1990); United States v. Davis, 15 F.3d 1393, 1412 (7th

Cir.), cert. denied, 513 U.S. 896 (1994). In contrast,

where the alleged influence is “intrinsic,” the policy of

preserving jury secrecy and independence, as well as

the need to avoid the risk of influencing the jury

through the investigation itself, weighs against an

inquiry. As a result, in the pre-verdict context, district

courts have correspondingly greater discretion to

decline to conduct an investigation of intrinsic influ-

ences than they do with respect to extrinsic influences.

See, e.g., United States v. Hanley, 190 F.3d 1017, 1031

(9th Cir. 1999); United States v. Chiantese, 582 F.2d

974, 978 (5th Cir. 1978), cert. denied, 441 U.S. 922

(1979). See also Grooms v. Wainwright, 610 F.2d 344,

347 (5th Cir.), cert. denied, 445 U.S. 953 (1980). Indeed,

one of the principal cases petitioner relies on,

United States v. Resko, 3 F.3d 684 (8d Cir. 1993), cited

Pet. 12-18, makes precisely that point. See 3 F.3d at

690 (distinguishing between intrinsic and extrinsic

influences in the pre-verdict context; concluding that,

because intra-jury influences do not create “reason to

doubt that the jury based its ultimate decision only on

evidence formally presented at trial,” trial courts

12

exercise comparably broader discretion when deciding

not to investigate claims alleging “only improper intra-

jury influence”).° In light of that recognized dichotomy,

the court of appeals’ mention of the distinction between

intrinsic and extrinsic influences in Rule 606(b) does

not mean that it applied all of the strictures of that rule

(e.g., its bar on interviewing jurors on intrinsic influ-

ences) to claims of misconduct that arise before verdict.

If it had, the opinion’s discussion of the district court’s

discretion to hold a hearing (or not) would have been

beside the point.

b. Petitioner also asserts that the Third, Fifth, and

Seventh Circuits permit pre-verdict inquiries into

intrinsic influences based on the view that Rule 606(b)

is inapplicable until after verdict, while “in the Sixth,

Tenth, and * * * Eleventh Circuits, the district court

would find itself without any authority to interrogate

jurors about the scope of the misconduct and its

prejudicial effect.” Pet. 15. No such conflict exists. As

indicated above, the Eleventh Circuit itself allows pre-

verdict inquiries, including inquiries into internal

influences, under appropriate circumstances. See p. 10,

supra; see, e.g., Gabay, 923 F.2d at 1541-1542. The

same is true in the Sixth and Tenth Circuits.

6 Although the court of appeals in Resko repeatedly recog-

nized the “broad” discretion exercised by district courts with

respect to internal influence claims, 3 F.3d at 690, it concluded

that, on the facts of that case, the district court had abused its

discretion. In particular, it concluded that, because the alleged

misconduct was so widespread—“every juror admitted to par-

taking in premature discussions”—the trial court was required to

conduct a hearing. I/bid. Petitioner does not allege comparably

widespread disregard of the court’s instructions here.

13

Petitioner cites United States v. Herndon, 156 F.3d

629 (6th Cir. 1998), as barring pre-verdict inquiries into

internal influences. Pet. 14-15. In that case, however,

the court of appeals held that the district court abused

its discretion by failing to investigate the defendant’s

pre-verdict allegations of improper influence. The court

did not hold that Rule 606(b) bars pre-verdict in-

quiries into instances of internal misconduct. Nor does

Herndon state that Rule 606(b) governs such inquiries.

Petitioner notes (Pet. 15) that Herndon quotes Rule

606(b) at the beginning of its discussion and discusses

the difference between extrinsic and intrinsic influences

on the jury. But the court of appeals’ reliance on the

distinction between intrinsic and extrinsic influences

was proper whether or not Rule 606(b) applies, since a

district court has less discretion to refuse to investigate

claims of improper extrinsic influences than it does with

respect to intrinsic influence claims. See pp. 10-12,

supra.

Petitioner’s reliance (Pet. 15) on United States v.

Davis, 1 F.3d 1014 (10th Cir. 1993), is likewise mis-

placed. In that case, the district court did conduct pre-

verdict voir dire and an evidentiary hearing on jury

bias, 1 F.3d at 1016, and the Tenth Circuit approved

that practice, id. at 1016-1017. In so doing, the Tenth

Circuit mentioned Rule 606(b), stating that “{ijnquiry

into such matters, within the limitations of Fed. R.

Evid. 606(b),” is “appropriate.” Pet. 15 (quoting 1 F.3d

at 1016) (emphasis omitted). But the court did not say

(let alone hold) that Rule 606(b) applies to inquiries

conducted before verdict or renders any type of pre-

verdict inquiry per se improper. And in the later

decision of United States v. McVeigh, 153 F.3d 1166,

1186-1188 (10th Cir. 1998), cert. denied, 526 U.S. 1007

(1999), the court recognized—without making any ref-

14

erence to Rule 606(b)—that district courts have dis-

cretion to hold hearings on claims of premature juror

deliberations (7.e., intrinsic misconduct). The court in

fact stated that “holding a hearing would have been

preferable” in the circumstances of that case, although

it held that the district court had not abused its

discretion in declining to do so. Id. at 1188.

ce. Petitioner, in any event, cannot show that the

district court abused its discretion in this case.

Petitioner admits (Pet. 11) that he alleged only intrinsic

influences on the jury, 7.e., premature deliberations and

deliberative pressure brought by jurors against one

another. The only evidence he presented to show pre-

mature deliberations, moreover, was defense counsel’s

report that the excused alternate thought a juror “had

made up his mind from day one.” Pet. App. 49a. In

light of the vague and speculative nature of that claim,

as well as its source—hearsay through defense counsel

—the court was within its discretion to deny counsel’s

motion for further inquiry or mistrial.

Nor was there reason to investigate the deliberative

pressure that jurors brought against each other. Peti-

tioner cites no case, and we have found none, in which a

court declared a mistrial based on internal deliberative

pressure. See Thompson v. Cain, 161 F.3d 802, 810 (5th

Cir. 1998) (distinguishing between deliberative pres-

sure from court and deliberative pressure from other

jurors, noting that the latter “does not raise the specter

of a constitutional violation”). As the district court

observed, it is common that deliberations become

heated and confrontational when another person’s life

or liberty is at stake. Pet. App. 74a. Thus, the district

court was also within its discretion when it decided not

to investigate the jury’s internal dynamics.

15

2. Petitioner next contends (Pet. 18) that the district

court unconstitutionally coerced a guilty verdict by

asking the jury to “continue to deliberate,” without re-

iterating its earlier admonition that the jurors should

not abandon their “honest beliefs” solely to reach a

verdict. That contention is without merit, and does not

in any event warrant review.

a. Following Allen v. United States, 164 U.S. 492

(1896), this Court has stated that a supplemental charge

encouraging a deadlocked jury to continue deliberations

must be examined “in its context and under all the cir-

cumstances” of the case. Jenkins v. United States, 380

US. 445, 446 (1965); Lowenfield v. Phelps, 484 U.S. 231,

237, 241 (1988). So long as the district court refrains

from inquiring regarding the numerical division of the

jury, see Brasfield v. United States, 272 U.S. 448, 449-

450 (1926) (announcing per se rule preventing such

inquiry), an instruction that encourages further delib-

eration may be upheld. The inquiry into coercion is

thus necessarily fact-intensive.

Applying that totality test, courts evaluating re-

quests merely to “continue deliberations” have often

found no constitutional violation. See, e.g., Young v.

Herring, 938 F.2d 543, 556-559 (5th Cir. 1991) (uphold-

ing instruction to “continue your deliberations”), cert.

denied, 503 U.S. 940 (1992); United States v. Black, 843

F.2d 1456, 1463 (D.C. Cir. 1988) (instruction urging con-

tinued deliberations, even after partial verdict instruc-

tion and two notes from jury, was “an entirely proper

and non-coercive request”). See also Pet. 23 (collecting

comparable cases). The totality of the circumstances in

this case supports the court of appeals’ decision to reach

the same result here. As the court of appeals noted, the

district court’s request was “routine and neutral.

Nothing in the brief [supplemental] instruction sug-

16

gested that a particular outcome was either desired or

required.” Pet. App. 8a. The request to “continue to

deliberate,” moreover, did not “speak specifically to the

minority jurors”; indeed, the trial court did not, at the

time it gave the instruction, know the nature of the

division among the jurors, ibid., and the jurors had no

reason to believe the court of appeals would know.

Contrast Lowenfield, 484 U.S. at 237 (instructions that

speak directly to the minority are inherently more

coercive).’ In addition, the jurors themselves had not

indicated an insurmountable impasse, but rather an

inability to reach a decision in the “near” future; thus,

the jurors would be less likely to interpret the further

instruction to deliberate as a request for unanimity at

all costs. Finally, the jury had been deliberating for

only 15 hours, compare United States v. Coffman, 94

F.3d 330, 336 (7th Cir. 1996) (upholding court’s instruc-

tion to “keep deliberating” when jury had indicated

7 Petitioner implies (Pet. 7) that, because the alternate

informed petitioner’s counsel that she knew the jury’s composition

(10-2 in favor of conviction) at the beginning of deliberations, the

court’s instruction to “continue to deliberate” was directed toward

the 2 jurors in favor of acquittal. The court’s knowledge of the

jury’s composition, however, is irrelevant to the coercion inquiry; it

is the jury’s awareness of that knowledge that may render further

instruction coercive. A minority juror who knows that the court is

aware of his position in the minority may interpret any instruction

to “achieve unanimity” or to “re-examine your views” as directed

to him alone. But petitioner does not suggest that any minority

jurors knew that Ms. Budd had spoken to the alternate, or that she

had advised the alternate of the initial numerical division, much

less that the judge had been advised of the division. And in any

event, as the court of appeals noted (Pet. App. 8a), the district

court here was “unaware of the composition of the jury’s nascent

verdict” at the time it gave the instruction.

17

disagreement after only ten hours of deliberation), cert.

denied, 520 U.S. 1165 (1997), and after the court’s in-

struction, it continued to deliberate for more than a day

before reaching its decision. Compare Lowenfield, 484

USS. at 240 (verdict returned 30 minutes after supple-

mental instruction might “suggest[] the possibility of

coercion”), with United States v. Estacio, 64 F.3d 477,

482 (9th Cir. 1995) (verdict returned 75 minutes after

court asked jurors to return later and inform the court

of “where you are” so the court could make an appoint-

ment did not “give rise to any presumption of coer-

cion”), cert. denied, 517 U.S. 1121 (1996).

b. Petitioner claims (Pet. 18-19) that the decision

below conflicts with decisions of the “vast majority” of

courts because the district court’s charge contained no

“cautionary language” reminding dissenting jurors not

to surrender their conscientiously held beliefs. The

district court, however, had once before instructed the

jury “not [to] give up your honest beliefs solely because

the others think differently or merely to get the case

over with.”” Jurors are presumed to follow their in-

structions, Francis v. Franklin, 471 U.S. 307, 324 n.9

(1985), and there is no reason to believe that they did

8 Before the jury retired to deliberate, the court instructed:

It is your duty as jurors to discuss the case with one another in

an effort to reach agreement, if you can do so. Each of you

must decide the case for yourself * * *.

While you are discussing the case, do not hesitate to

reexamine your own opinion and change your mind if you

become convinced that you were wrong, but do not give up

your honest beliefs solely because the others think differently

or merely to get the case over with.

34 Tr. 4787-4788.

18

not do so here. Moreover, the cautionary language

petitioner demands is curative in nature, i.e., designed

to eliminate circumstances that otherwise might be

coercive. See United States v. Mason, 658 F.2d 1263,

1268 (9th Cir. 1981) (language is “ameliorat[ive]”);

United States v. Rogers, 289 F.2d 438, 485 (4th Cir.

1961) (if Allen charge itself were “stripped of its

complementary reminder,” then it “might readily be

construed by the minority of jurors as coercive”). Such

an instruction thus is not required unless the trial court

does something that, under the circumstances, would ~

otherwise be coercive.

For those reasons, the decisions petitioner cites as

conflicting with the decision below, Pet. 20-23, are all

distinguishable. In Smalls v. Batista, 191 F.3d 272 (2d

Cir. 1999), on which petitioner places primary reliance

(Pet. 20-21), the jury informed the district court that

“(t]he decision is 11 to 1, and we are unable to come toa

conclusion.” 191 F.3d at 275. The Smalls court then

gave an instruction that “thrice” directed the jurors to

try and “convince the others,” asked the jurors to be

“open to reason,” and specifically indicated that jurors

“should make every effort to convince the others

whether it be one of eleven, two out of twelve, what-

ever number it may be.” /d. at 275, 280. Thus, contrary

to petitioner’s claim (Pet. 20), the Smalls court did not

merely direct the jury to “continue to discuss the case”

or to “continue a free discussion,” and the circum-

stances were hardly analogous to those here. Instead,

because the jury knew that the judge was aware of the

nature of the division, the minority juror would

naturally have understood the instruction as singling

him or her out to be “open to reason,” and as reminding

the majority of its “responsibility” to change the

minority juror’s mind. 191 F.3d at 280. Indeed, the

19

charge specifically directed the majority to “convince

the others whether it be one of eleven, two out of

twelve, whatever number it may be.” Jd. at 275. More-

over, the Second Circuit expressly declined to “decide

whether the charge would have been coercive if it had

included the requisite cautionary language.” Jd. at 280.

Here, in contrast, the jury had no reason to believe the

court was aware of the nature of its division, and the

trial court made no reference to jurors convincing each

other or changing their minds. And in this case, the

trial court had earlier instructed jurors “not [to] give up

your honest beliefs solely because the others think

differently or merely to get the case over with.” There

is no indication that a similar instruction was given in

Smalls.

In any event, both before and after its decision in

Smalls, the Second Circuit has approved instructions to

“continue deliberating,” without additional ameliorative

language. See United States v. Wallace, 213 F.3d

627 (2d Cir. 2000) (No. 99-1657) (unpublished) (citing

Smalls and concluding that “although the supplemental

instruction * * * did not caution the jurors not to

abandon their individual conscientious views simply to

achieve unanimity, we cannot see that it tended to

coerce jurors to abandon any conscientiously held

doubt”); United States v. Fermin, 32 F.3d 674, 679-680

(2d Cir. 1994) (approving district court’s decision to

“refrain[{] from giving an Allen charge, * * * and

simply inform{] the jury to continue to deliberate in

accordance with prior instructions” without cautionary

language (internal citation omitted)), cert. denied, 513

U.S. 1170 (1995); ef. DeGrandis v. Fay, 335 F.2d 178,

174 (2d Cir. 1964) (rejecting claim that requiring jury to

continue deliberating “coerced the verdict” when court

had instructed the jury to “[cjontinue to deliberate,”

20

without adding cautionary language, in response to

jury’s note that “we cannot make a decision on all

counts tonight”). There is little reason to think that the

Second Circuit would not reach the same result on

these facts as well.

The other cases cited by petitioner are inapposite for

similar reasons. In United States v. Mason, 658 F.2d

1263, 1267 (9th Cir. 1981) (cited Pet. 21), for example,

the supplemental charge stressed the expense that

retrial would impose, and mentioned that the Supreme

Court had approved the charge, giving it “special

weight in the minds of the jury.” And in United States

v. Scott, 547 F.2d 334, 338 (6th Cir. 1977) (cited Pet. 22),

the court stated “this, of course, is a very important

case,” referred to the scheduling problems that would

arise if the case had to be retried, and suggested that

the jury might reach verdict “in another 15 minutes, 29

minutes.” Finally, in Rogers, 289 F.2d at 484-435 & n.2

(cited Pet. 21), the court instructed the jury about its

“duty” to agree, and echoed the classic Allen language

—which specifically asks jurors to reconsider their

views—but omitted any ameliorative language.

3. Finally, petitioner challenges (Pet. 26) the trial

court’s instruction regarding the definition of “counter-

feited” under 18 U.S.C. 513(¢)(1).. Tracking the langu-

age of that statute, the district court instructed the jury

that a document was “counterfeited” if it “purports to

be genuine, but is not, because it has been falsely made

or manufactured in its entirety.” Gov’t C.A. Br. 17.

Petitioner claims (Pet. 26) that the instruction was

erroneous because it failed to include the common-law

requirement of similitude. Petitioner, however, identi-

fies no conflict among the circuits on the definition of

“counterfeited” under Section 513; nor does one exist.

The court below was the first to decide whether Section

21

513 incorporated a similitude requirement, and the only

other appellate court that has since considered that

question reached the same result. See United States v.

Akers, 215 F.3d 1089, 1100 (10th Cir. 2000) (rejecting

defendant’s argument that fake checks were not

“counterfeit” under Section 513 because “they were

obviously not authentic” and stating that checks need

only “purport[] to be genuine” under the statute).

Moreover, as the court of appeals pointed out (Pet. App.

14a), courts interpreting an identical definition of

“counterfeited” under the Federal Sentencing Guide-

lines, see Sentencing Guidelines § 2B5.1, have rejected

the argument that that term includes an implicit re-

quirement of similitude. See United States v. Webster,

108 F.3d 1156, 1157-1158 (9th Cir. 1997); United States

v. Lamere, 980 F.2d 506, 513 (8th Cir. 1992); ef. United

States v. Kelly, 204 F.3d 652, 657 (6th Cir.) (incomplete

currency may be “counterfeit” under Guideline 2B5.1),

cert. denied, 120 S. Ct. 2732 (2000).

Those decisions are correct. As petitioner (Pet. 26)

and the court of appeals (Pet. App. 10a) both point out,

courts have imposed a similitude requirement with

respect to counterfeiting statutes other than Section

513. But unlike Section 513, those “older counterfeiting

statutes”—18 U.S.C. 472 through 474—“left their key

term undefined.” The courts therefore filled the gap by

incorporating the common-law definition of counterfeit,

which required similitude. Pet. App. 10a (collecting

cases). When Congress enacted Section 513, however,

it defined “counterfeited” as a document that “purports

to be genuine, but is not.” The presumption that Con-

gress intends a common-law term to incorporate the

common-law meaning applies only in the “absence of

contrary direction.” Morisette v. United States, 342

U.S. 246, 263 (1952). Where a statute does provide a

22

definition that varies from the common law, the statu-

tory definition prevails. See Nationwide Mut. Ins. Co.

v. Darden, 503 U.S. 318, 325-326 (1992).

The fact that Congress provided a definition of

counterfeited in Section 513, but did not include the

term similitude, is particularly significant given that

Congress has expressly incorporated a similitude re-

quirement in other counterfeiting provisions. Pet. App.

lla (citing 18 U.S.C. 474, which prohibits the posses-

sion, with intent to sell, of “any * * * security made

* * * after the similitude of any obligation or other

security issued under the authority of the United

States”). Furthermore, as the court of appeals also

pointed out (Pet. App. 12a-13a), a definition of counter-

feited that does not require similitude comports with

Congress’s intent under Section 513, which was to

broaden the reach of the existing counterfeiting stat-

utes. See S. Rep. No. 225, 98th Cong., Ist Sess. 371

(1983). Indeed, a similitude requirement would be

entirely out of place in Section 513. Where a coun-

terfeiting statute, like 18 U.S.C. 472 through 474,

addresses the counterfeiting of documents, such as

currency, that are uniform throughout the nation and

easily recognizable by the average person, a similitude

requirement makes sense. But Section 513 addresses

the counterfeiting of documents that are less common

and are often non-uniform. As a result, Congress

needed to criminalize as “counterfeited” not only those

documents that bear a “similitude” to genuine securi-

ties, but also those documents that, because they

23

purport to be genuine, might trick the many people who

have never seen the real thing. See Pet. App. 13a.”

Petitioner also claims (Pet. 26) that the statutory

definition of “counterfeited” under Section 513 itself

requires a showing of similitude. He contends that, by

using the words “purports to be genuine,” Congress

meant to require a showing that the counterfeit docu-

ment is closely akin to a genuine security. Pet. 26. A

document may “purport[] to be genuine” on its face,

however, without actually simulating the genuine

document—especially when, as here, the document is

essentially the memorialization of a financial trans-

action, which may change form from organization to

organization. Moreover, as the court of appeals found

here, accompanying documents that vouch for the

authenticity of the counterfeit securities, as well as

the fact that the counterfeit securities were relied upon

as real, all helped establish that the counterfeit

securities “purport[ed] to be genuine.” Pet. App. 15a.’°

®° For example, although securities “of the United States”

covered under the older statutes are uniform in appearance

throughout the country, the form of securities of a “State or

political subdivision thereof or of an organization,” which are

addressed in Section 513, may vary widely. Congress could not

have meant for a counterfeit security that bears a similarity to one

organization’s genuine security, but is passed off as another’s

(although it lacks similitude to the second organization’s docu-

ment), to fall outside the statute’s reach.

0 Petitioner also points to a statement, in the legislative

history of Section 513, suggesting that the term “counterfeited”

requires similitude. Pet. 28. As this Court has repeatedly

emphasized, however, when a statute “speaks with clarity to an

issue,” the inquiry is at an end. See, eg., Estate of Cowart v.

Nicklos Drilling Co., 505 U.S. 469, 475 (1992). See also Pet. App.

12a (rejecting reliance on legislative history because statutory text

24

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

KARIN B. HOPPMANN

Attorney

SEPTEMBER 2000

is clear). For the same reasons, petitioner’s reliance on Senator

D’Amato’s comments on a precursor to 18 U.S.C. 514 (Supp. IV

1998) (Pet. 29-30)—a provision passed a decade after Section

513—is unavailing. Indeed, “the views of a subsequent Congress”

—let alone the views of the single Senator upon which petitioner

places great reliance—“form a hazardous basis for inferring the

intent of an earlier one.” United States v. Price, 361 U.S. 304, 313

(1960). Petitioner, in any event, misconstrues Senator D’Amato’s

comments. Although Senator D’Amato indicated that Section 514

(Supp. IV 1998) would “close a loophole” in existing counterfeit

law, that loophole did not arise from a “similitude” requirement in

Section 513. It arose because Section 513 requires the

counterfeited item to be a “security,” which is defined as “note,

stock certificate, treasury stock certificate, bond,” ete. 18 U.S.C.

513(a) and (c)(3). Because of that, before Section 514 was enacted,

a defendant could have argued that Section 513 was inapplicable if

the allegedly counterfeited document purported to be a financial

instrument that is not a “security” listed in Section 513(c)(3). It

was for that reason that the Senator’s proposed bill, which (as

originally proposed) did not cover “securities,” extended the

counterfeiting prohibition to all “other financial instruments.” 141

Cong. Rec. 18,038 (1995). As enacted, Section 514 covers both

“securit{ies]” and “other financial instrument{s].” 18 U.S.C. 514

(Supp. IV 1998).