UNITED STATES OF AMERICA, PETITIONER V. THOMAS O. ROBINSON, JR. No. 86-937 In the Supreme Court of the United States October Term, 1987 On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Reply Memorandum For The United States In our opening brief, we contended that the court of appeals' judgment reversing respondent's convictions was flawed in two respects. First, the court of appeals misconstrued this Court's decision in Griffin v. California, 380 U.S. 609 (1965), and it did so in a fashion symptomatic of the wider confusion among the lower federal courts about the scope of the Griffin rule. Second, the court of appeals misapplied the "plain error" doctrine, holding that courts are freer to overlook a failure to object at trial where the error in issue implicates constitutional rights. 1. Respondent shares our view that the rule in Griffin does not forbid every comment pertaining to a defendant's failure to testify, but only those comments that "'solemnize() the silence of the accused into evidence against him'" (Resp. Br. 27 (quoting Griffin, 380 U.S. at 614)). Respondent likewise agrees that a prosecutor must have leeway to respond in rebuttal "when defense counsel indulges in improper argument" (Resp. Br. 29). And respondent does not dispute the general proposition that arguments or other trial procedures are not constitutionally infirm simply because they place some burden on a defendant's exercise of his right not to testify. Respondent argues, however, that the prosecutor's rebuttal in this case was improper because it was not warranted by defense counsel's summation. According to respondent, defense counsel "confined his criticism" to the government's purported failure, during its "pre-indictment questioning," to afford respondent a chance to answer "questions about the list of property (that respondent) submitted with the insurance claim form through the mail" (Resp. Br. 31, 35). In respondent's view, counsel did not argue that the government had prevented respondent from telling his side of the story to the jury (id. at 35). Thus, he reasons, the trial court violated the rule in Griffin by permitting the prosecutor to respond as he did. But respondent's account does not explain the words his counsel actually used in summation (Tr. 671; J.A. 19): Now, would you like to get indicted for that, without the Government being fair, and being able to explain, have him explain before you, members of your own community, rather than before the agents? These remarks cannot plausibly be understood simply to mean that the investigators, during the pre-indictment proceedings, denied respondent a chance to confront all of the evidence against him. Respondent apparently recognizes as much, for he suggests (Resp. Br. 15) that in making this statement "(c)ounsel stressed the unfairness of not giving the respondent an opportunity to explain to the investigators first, rather than requiring him to explain it before a jury." This more elaborate explanation, however, is equally unfaithful to defense counsel's actual language; certainly, neither the trial court nor the prosecutor construed the summation in that way. And defense counsel failed to offer this (or any other) account of the summation at a time when the trial court could have acted on it. 2. Respondent defends the court of appeals' plain error analysis on three grounds. He argues, first, that the plain error doctrine is not applicable at all, since even without an objection by counsel, "there was no failure of the trial judge * * * in detecting the error" in the prosecutor's rebuttal (Resp. Br. 39). Second, respondent agrees with the court of appeals (id. at 44-47) that the plain error rule should be more leniently applied when the error in question implicates constitutional rights. Finally, respondent asserts (id. at 47-50) that the prosecutor's rebuttal constituted plain error and was properly noticed by the court of appeals, despite the absence of a contemporaneous objection. Each of these contentions falls short of the mark. a. It is true, as respondent notes, that even without an objection "(t)he district court considered the Fifth Amendment" (Resp. Br. 41) when it ruled that the prosecutor could respond to counsel's remarks. But it is not enough that a trial court is generally aware of possible objections that might be raised to a particular evidentiary ruling. In this case, because defense counsel failed to make a contemporaneous objection, the court had no idea whether counsel actually opposed the prosecutor's proposed rebuttal. Nor could the trial court consider counsel's conflicting interpretation of his summation remarks. Had defense counsel wished to rely on that alternative explanation, he had a duty to make it known to the court. /1/ b. Respondent does not dispute this Court's observation in Yakus v. United States, 321 U.S. 414, 444 (1944), that "(n)o procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before the tribunal having jurisdiction to determine it." And respondent offers no reason why the plain error rule should be applied more leniently when constitutional claims are involved. Indeed, that has not been the Court's practice. In Estelle v. Williams, 425 U.S. 501 (1976), for example, the Court agreed with the defendant that under the Fourteenth Amendment he should not have been required to stand trial in prison garb. Nevertheless, because defense counsel had raised no objection at trial to the practice, the Court refused to reverse the defendant's conviction. While reluctant to find a "relinquishment of a fundamental right * * * absent a showing of a conscious surrender of a known right" (id. at 508 n.3), the Court explained (ibid.) that it "has not * * * engaged in this exacting analysis with respect to strategic and tactical decisions, even those with constitutional implications, by a counseled accused." Quoting the Second Circuit's decision in United States v. Indiviglio, 352 F.2d 276, 280 (1965), cert. denied, 383 U.S. 907 (1966), the Court observed (ibid.) that "(f)ederal courts, including the Supreme Court, have declined to notice (alleged) errors not objected to below even though such errors involve a criminal defendant's constitutional rights." And the Court noted (425 U.S. at 508 n.3) that "(t)he reason for this rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situation." See also id. at 513-515 (Powell, J., concurring). /2/ c. Respondent offers no support for his contention (Resp. Br. 47-50) that the prosecutor's summation in this case constituted plain error in the required sense: a "'particularly egregious error'" that "seriously affect(ed) the fairness, integrity or public reputation of (the) judicial proceedings" (United States v. Young, 470 U.S. 1, 15 (1985) (citations omitted)). /3/ Respondent suggests (Resp. Br. 49) that "the evidence of guilt was not overwhelming"; but, as our statement of facts shows, the proof at trial was extraordinarily strong. It is hard to imagine a stronger circumstantial case than this one. There is no more force to respondent's contention (Resp. Br. 24) that the rebuttal "was crucial in this case (because) the defense rest(ed) on the failure of the prosecution to establish guilt beyond a reasonable doubt on each element of the crime charged." That is essentially the defense in every criminal case. Finally, respondent provides no support for his extravagant claim (Resp. Br. at 33) that until the prosecutor's remarks, "the trial (had been) based upon an accusatory system of criminal justice" but that "(t)he remark changed the basis to an inquisitional system." It is not clear what that characterization is meant to suggest. In any event, if there were any dramatic change in the character of the trial at the point of the prosecutor's remarks, it apparently was too subtle to attract the notice of defense counsel at the time. For the foregoing reasons, and the reasons set forth in our opening brief, it is respectfully submitted that the judgment of the court of appeals should be reversed. CHARLES FRIED Solicitor General SEPTEMBER 1987 /1/ Respondent relies heavily (see Resp. Br. 24, 37, 39-44, 47) on Fed. R. Crim. P. 51 for the surprising proposition that a contemporaneous objection is not the only way to preserve an issue for appeal. Rule 51 makes it unnecessary to lodge an exception to a ruling in order to preserve the issue. But the rule clearly provides that in place of an exception "a party, at the time the ruling or order of the court is made or sought, (must) make() known to the court the action which * * * (he) desires the court to take or * * * (his) objection to the action of the court and the grounds therefor * * *." Moreover, there is nothing "flexible" (Resp. Br. 39-40 n.9) about this requirement. Indeed, Rule 51 by its terms excuses a party from making an objection only when the party "has no opportunity to object." Respondent does not suggest that he was somehow denied a chance to make his views known to the trial judge. See Estelle v. Williams, 425 U.S. 501, 509-513 (1976). /2/ Respondent suggests (Resp. Br. 44-47) that in each case in which this Court has noticed a plain error, the error was of constitutional dimension. None of the cited cases, however, described the relevant error in constitutional terms. Indeed, only by recharacterizing the cases in "fair trial" or "due process" terms is respondent able to attach a constitutional label to each of the various errors in the cases. /3/ "The plain error doctrine * * * does not permit us to consider the ordinary backfires -- whether or not harmful to a litigant's cause -- which may mar a trial record. The doctrine focuses our attention only on blockbusters: those errors so shocking that they seriously affect the fundamental fairness and basic integrity of the proceedings conducted below." United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987).