UNITED STATES OF AMERICA, PETITIONER V. JAMES RUAL MILLER No. 83-1750 In the Supreme Court of the United States October Term, 1984 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Brief for the United States In our opening brief we argued that the Fifth Amendment right to indictment by a grand jury does not support the reversal of respondent's mail fraud convictions on the ground that the fraudulent scheme the government proved at trial was narrower than the description of the scheme contained in the indictment. Nothing in respondent's answering brief refutes our position. 1. In the first section of our opening brief (at 11-25), we explained that this case is controlled by Salinger v. United States, 272 U.S. 542 (1926), and subsequent cases that have held that the government's proof at trial need not match the allegations in the indictment when the effect of any disparity is merely to narrow the charges against a defendant. The indictment in this case charged that respondent used the mails in furtherance of a fraudulent scheme to obtain money from his insurance company as a result of an alleged burglary of his business. The means specified by the indictment for carrying out this scheme involved both consent to the burglary and gross inflation of the loss suffered as a consequence of the burglary. At trial, the government proved all the elements needed to convict for mail fraud, including, as described in the indictment, a fraudulent scheme involving respondent's submission of an insurance claim reflecting gross inflation of the amount of copper on hand at the time of the alleged burglary; however, the government's evidence did not establish that respondent had engineered the alleged burglary. /1/ Under Salinger, that narrowing of the charges concerning the fraudulent scheme did not constitute any violation of respondent's right to be indicted by a grand jury. Respondent does not join issue with our argument on this point. Instead, he proceeds from a premise that is entirely inconsistent with the facts of this case. He asserts (Br. 7-8) that the indictment charged only a false burglary, and almost entirely ignores the charge that in submitting his insurance claim respondent grossly inflated the amount of copper he had on hand at the time of the alleged burglary. Respondent implies (id. at 4, 5, 11, 19) that the grand jury heard no evidence that would support the allegation that he had grossly inflated the amount of copper on hand, but only evidence relating to a false burglary. /2/ Under respondent's version of the proceedings in this case, the prosecutor at trial suddenly concluded that he would be unable to obtain a conviction on the false burglary theory and abruptly changed to a different theory involving gross inflation of the amount of copper respondent had on hand at the time of a genuine burglary. /3/ According to respondent (id. at 9-10, 18), this sudden change in the government's theory resulted in unfair surprise and prejudice. Respondent's version of the proceedings in this case bears no relation to reality. The indictment on its face not only charges that respondent consented to the alleged burglary of his business, but alleges specifically in paragraphs 5 and 7 of count one that respondent "would and did claim to have lost 210,170 pounds of copper wire, worth $123,500," although he "well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance Company" (J.A. 3). Clearly then, the gross inflation theory was not the product of the prosecutor's creativity at trial; rather, it was an allegation expressly put forward by the grand jury itself. And since the indictment provided clear notice of the allegation, the government's proof at trial could not have resulted in any unfair surprise to respondent. In fact, there is no indication in the proceedings prior to and during trial that respondent was prejudiced in any way by the prosecution's failure to prove that he was complicit in the alleged burglary. Respondent never requested a bill of particulars, thus, he had no basis for believing the government would abandon any attempt to prove the allegation that he had grossly inflated the amount of copper he had on hand. Indeed, he had every reason to know that this would be a central feature of the proof at trial. The Assistant United States Attorney who tried this case advises us that a month and a half before trial, he provided respondent with lists of exhibits and witnesses the government planned to produce at trial, and that respondent also received Jencks Act materials prior to trial, including any copies of reports of FBI interviews and grand jury testimony of witnesses who eventually testified for the government at trial. The prosecutor's trial brief summarized the government's evidence concerning the amount of copper respondent had on hand at the time of the alleged burglary. These materials unquestionably put respondent on notice that much of the government's proof would focus on whether respondent could have had on hand the amount of copper he reported to the insurance company as stolen. The prosecutor's opening statement at trial (Tr. 8-11) /4/ included no reference to a false burglary allegation; the statement summarized the anticipated testimony of individuals who sold copper to, or bought it from, respondent around the time of the alleged burglary and of respondent's employees concerning the amount of copper he had on hand at the time. The cross-examination of those witnesses (e.g., Tr. 68-75, 89-95, 109-129, 133-137, 151-156, 201-206, 238-242) and respondent's counsel's own attempts to introduce testimony on that subject (e.g., Tr. 259-267, 282, 289-292, 314-316) demonstrate that he was fully prepared to address the prosecution's proof. Although he contended at the close of all the evidence that respondent should be acquitted because of the prosecution's failure to establish consent to the alleged burglary (see J.A. 5-6), respondent's counsel did not even suggest to the trial court that the failure to prove that allegation of the indictment had somehow interfered with his ability to prepare his client's defense. Indeed, it is more likely that the government's failure to offer convincing proof on the false burglary point benefited respondent's counsel by allowing him to concentrate his attention on the issue of inflation of the amount of copper on hand. Respondent's counsel never requested a continuance, which would have been the logical remedy had he been surprised by unforeseen developments at trial. It is true that the prosecutor chose not to introduce the testimony of Robert Fisher (one of respondent's employees), whose testimony before the grand jury supported the allegation of false burglary. /5/ But that decision does not signify some extraordinary or improper departure from the indictment. As we noted in our opening brief (at 19), it is commonplace for some anticipated evidence to become unavailable prior to trial, or for the prosecutor to make the judgment that it is preferable not to introduce certain testimony if he is satisfied that the remaining evidence is clearly sufficient to prove the offense. /6/ Cf. Luce v. United States, No. 83-912 (Dec. 10, 1984), slip op. 4. If respondent's counsel focused his preparation on the false burglary allegation, he was taking a substantial risk that the government would not undertake or be able to prove that the insurance company was defrauded by the other means alleged in the indictment. Respondent recognizes (Br. 7-8), that under Salinger and subsequent cases there is no constitutional violation when the proof at trial merely narrows the charges of the indictment. Thus, it is understandable that he seeks to remove this case from the reach of that principle. But it is clear that this case does involve a narrowing of the charges and that the court of appeals understood it as such. See J.A. 8; 715 F.2d at 1363 (initially describing respondent's conviction as predicated on a "substantially narrower scheme than that pleaded in the indictment"). Respondent implicitly acknowledges that this is so when he describes the court of appeals as relying in this case on the proposition stated in its decision in United States v. Mastelotto, 717 F.2d 1238, 1248-1249 (9th Cir. 1983) -- that a mail fraud conviction may be overturned when the scheme alleged in the indictment and the scheme proved at trial are "concentric." See Resp. Br. 6-7. The "obvious principle" (id. at 6) stated in Mastelotto and applied in this case is directly contrary to this Court's decision in Salinger. 2. Respondent urges (Br. 15-16) that Ex parte Bain, 121 U.S. 1 (1887), established a "venerable rule" that governs this case. He nowhere acknowledges this Court's recent statement that Bain "was long ago limited to its facts by Salinger v. United States." United States v. Villamonte-Marquez, No. 81-1350 (June 17, 1983), slip op. 2 n.2. We suggested in our opening brief that Bain should be expressly overruled because it has fostered confusion in the lower courts. Respondent's conclusory denials do not serve to rebut those points. We also explained in our opening brief (at 29-30) that this case can be distinguished from Stirone v. United States, 361 U.S. 212 (1960), on the ground that Stirone involved broadening, rather than narrowing, of the charges of an indictment. We noted further that the analysis in Stirone appeared unsound, in part because, as in Bain, the Court relied on speculation about whether the grand jury conceivably might have chosen not to indict if it had considered only the evidence eventually presented at trial. See U.S. Br. 30 n.17, 44 n.25. We contended (id. at 42) that there is no violation of a defendant's right to be indicted by a grand jury when he is convicted of the same offense for which he was indicted. We suggested (id. at 42-45) that in ruling on such claims a court might consider, among other things, principles used in determining whether the indictment and the proof at trial would describe separate offenses for double jeopardy purposes or principles relating to sufficiency of the indictment. We questioned the Court's conclusion that Stirone's right to be indicted by a grand jury had been violated, since proof of a kind of interstate commerce different from that alleged in the indictment did not mean that Stirone was convicted of a different offense from that charged in the indictment. We noted, however, that the result in Stirone might conceivably have been justified on the basis of prejudice resulting from unfair surprise to the defendant. U.S. Br. 30 n.17. Respondent acknowledges (Br. 14) that in this case, as in Stirone, the discrepancy between the indictment and the conviction "does not amount to separate offenses." He claims, however, that we have improperly attempted to equate the right to indictment by a grand jury with the prohibition against double jeopardy (Resp. Br. 16-20). He insists that the key inquiry in connection with the Fifth Amendment right to be indicted by a grand jury is whether the defendant has been unfairly surprised by such a discrepancy; and he accuses us of ignoring that inquiry (id. at 14, 18-20). Respondent mischaracterizes our contentions. We do not argue that the right to indictment by a grand jury serves the same function as the prohibition against double jeopardy (although this Court has itself suggested that these two rights bear some relation to each other, see Russell v. United States, 369 U.S. 749, 764 (1962)). Rather, we have suggested that principles developed in double jeopardy cases may provide guidance to a court that is attempting to determine whether the prosecution has proved at trial an offense different from that charged in the indictment. Nor do we contend that courts should ignore the issue of prejudice. We stated expressly in our opening brief (at 45-46) that a court should examine the question of unfair surprise when it considers a discrepancy between an indictment and the proof at trial. As we there noted, however, the inquiry into prejudice is relevant primarily to due process requirements and a defendant's Sixth Amendment right to notice of the charges against him, rather than his Fifth Amendment right to be indicted by a grand jury. Of course, as discussed in the previous point, there is no possibility here that respondent could have been unfairly surprised by the prosecutor's decision to focus his proof on a part of the allegations relating to respondent's fraudulent scheme, since the indictment put him on notice that he should be prepared to meet the "gross inflation" allegation as well as the false burglary allegation. 3. Respondent strongly implies at several points in his answering brief (at 4, 5, 11, 19) that the grand jury heard evidence only of false burglary, while the petit jury heard evidence only of respondent's gross inflation of the amount of copper on hand. /7/ In support of that assertion, respondent cites the fact that at trial the prosecutor decided not to call Robert Fisher, whose testimony before the grand jury supported the false burglary allegation of the indictment (see page 6 & note 5, supra). Even if respondent were correct that the grand jury and the petit jury heard entirely different evidence, that would not amount to a violation of the Fifth Amendment right to be indicted by a grand jury. As we explained in our opening brief (at 20-21), this Court has held that the grand jury may base its decision to indict on evidence that could not be presented at trial. See, e.g., United States v. Calandra, 414 U.S. 338 (1974); Costello v. United States, 350 U.S. 359 (1956). That principle derives in large part from the function of the grand jury in our system: "The grand jury does not sit to determine the truth of the charges brought against a defendant, but only to determine whether there is probable cause to believe them true, so as to require him to stand trial." Bracy v. United States, 435 U.S. 1301, 1302 (1978) (Rehnquist, Circuit Justice). Respondent's suggestion that this Court should look behind an indictment that is valid on its face in order to determine whether the evidence presented to the grand jury differs significantly from evidence presented at trial is entirely out of line with this Court's precedents. In any event, respondent's premise concerning the evidence before the grand jury is simply unfounded. Indeed, respondent clearly knew that there were at least five witnesses other than Fisher who appeared before the grand jury, since the government provided respondent's counsel with transcripts of the grand jury testimony of those witnesses. Two of those witnesses, Charles Schwartz and William Harmon, testified both before the grand jury and at trial concerning the amount of copper respondent had on hand at the time of the alleged burglary, and respondent's counsel used the grand jury transcripts in cross-examining Schwartz and Harmon at trial (Tr. 110-113, 204-205). As we noted in our reply brief at the petition stage (at 4 n.3), much of the evidence before the grand jury was presented through the testimony of the FBI case agent, who described what he had learned from individuals who eventually testified at trial. /8/ Thus, respondent's contentions concerning the evidence before the grand jury are not only irrelevant; they are also inconsistent with what actually transpired in this case. /9/ For the foregoing reasons and those stated in our opening brief, the judgment of the court of appeals should be reversed. Respectfully submitted. REX E. LEE Solicitor General JANUARY 1985 /1/ Contrary to respondent's suggestion (Br. 8-10, 19), the allegation that he consented to the burglary he reported can hardly be viewed as a crucial part of the offenses charged in the indictment. The essential elements of those offenses were the mailing of a particular false "proof of loss" and causing the mailing of a check for $50,000 that represented partial payment of the false claim pursuant to a fraudulent scheme. The central feature of the alleged scheme was the filing of a false insurance claim that would cause the insurance company to pay respondent money to which he was not entitled. Proof that respondent had grossly inflated the amount of copper he had on hand was clearly sufficient to establish the existence of such a scheme. Citations to respondent's answering brief refer to the typescript version of that brief. At the time this reply brief was prepared, respondent's brief had not yet been printed. /2/ We address respondent's contentions regarding the evidence presented to the grand jury at pages 9-11, infra. /3/ It is unclear why respondent characterizes the government's proof at trial as relating to a real burglary (see Resp. Br. 9). The government introduced some evidence that suggested that respondent might have engineered the alleged burglary, including evidence that respondent increased his insurance coverage significantly for the two-week period ending July 15, 1981, and misrepresented the reasons for doing so. This evidence tended to suggest that the alleged burglary was not genuine, but was not sufficient to prove that fact. /4/ "Tr." refers to the transcript of the trial proceedings, which we are lodging with the Clerk of the Court. Counsel for the parties agreed at the court of appeals stage to stipulate to the facts in lieu of ordering a transcript. After certiorari was granted, we requested preparation of a transcript of the trial proceedings, in part because respondent's statements about prejudice in his brief in opposition were inconsistent with the prosecutor's recollection of the events at trial. In a telephone conversation with a member of respondent's counsel's firm prior to the filing of our opening brief, we indicated that we did not plan to cite the transcript in that brief, but that we would feel free to refer to it if respondent's answering brief made representations about what had taken place at trial. In view of the claims of unfair surprise and prejudice that respondent has made in his answering brief, we believe it is appropriate for use to respond on the basis of our examination of the trial transcript. We are also lodging with the Clerk of the Court copies of some of the materials that the Assistant United States Attorney advises us that he provided to respondent's counsel before trial. We note, however, our view that it is clear without reference to the transcript or the materials provided to respondent that respondent could not have been prejudiced by the government's failure to prove the false burglary allegation at trial. /5/ Fisher testified before the grand jury that the night before the alleged burglary respondent had asked him to drive one of respondent's trucks from his place of business and leave it under a bridge. /6/ Respondent himself implicitly acknowledges that the government may have had good reason not to present Fisher's testimony in this case. Respondent's description of the difficulties the prosecutor experienced in obtaining Fisher's presence at trial (see Resp. Br. 3, 9) suggests that Fisher would have been a reluctant witness at best. /7/ Respondent's contentions on this point are not entirely consistent. Contrast Resp. Br. 5 (record before the court of appeals showed that "the scheme presented for grand jury consideration included no evidence of a grossly inflated property loss claim, except by virtue of there having been no burglary at all") with id. at 14-15 (court of appeals did not know "whether any, or what, evidence was presented to the grand jury relating to the actual scrap loss"). In fact, the record before the court of appeals did not reveal which witnesses had testified before the grand jury or the content of that testimony. /8/ Respondent did not receive a copy of the transcript of the case agent's grand jury testimony, since the agent did not testify for the government at trial. /9/ We are lodging with the Clerk of the Court copies of the transcripts of the grand jury testimony in case the Court should wish to consult them in connection with respondent's suggestion concerning the evidence before the grand jury. The Court may also wish to consult the transcripts in connection with respondent's description of Fisher's grand jury testimony (Resp. Br. 2-3, 9); that description goes considerably beyond what Fisher actually said before the grand jury. However, we reiterate that the nature of the evidence before the grand jury has no relevance to the issues in this case, so that it should be unnecessary for the Court to refer to any of the grand jury transcripts.