LORENZO RIVERA, PETITIONER V. UNITED STATES OF AMERICA WILLIE BURGESS, PETITIONER V. UNITED STATES OF AMERICA No. 89-6226, 89-6266 In The Supreme Court Of The United States October Term, 1989 On Petitions For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals affirming petitioners' convictions (Pet. App. 1a-46a) is unreported. /1/ The opinion of the court of appeals affirming the judgement of criminal forfeiture of petitioner Burgess's property (89-6266 Pet. App. 32-34) is reported at 884 F.2d 544. JURISDICTION The judgements of the court of appeals were entered on September 8, 1989. A petition for rehearing was denied on October 17, 1989. 89-6266 Pet. App. 38-39. The petition for a writ of certiorari in No. 89-6226 was filed on December 7, 1989. The petition for a writ of certiorari in No. 89-6266 was filed on December 14, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly admitted into evidence a ledger recording various narcotics transactions that contained one entry in petitioner Rivera's handwriting (89-6226 Pet. 6-9). 2. Whether the district court violated Federal Rule of Criminal Procedure 32(c)(3)(D) by not appending to the presentence investigation report a "written record of (the court's) findings and determinations" regarding disputed issues of fact contained in that report (89-6226 Pet. 9-10). 3. Whether there was sufficient evidence to support petitioner Rivera's conviction on five counts charging him with possessing heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (89-6226 Pet. 11-13). 4. Whether the forfeiture allegation under 21 U.S.C. 853 charged in the indictment violated the Due Process Clause and otherwise interfered with petitioner Burgess's Sixth Amendment right to counsel (89-6266 Pet. 11-22). STATEMENT After a jury trial in the United States District Court for the Northern District of Georgia, petitioners were convicted of conspiracy to distribute heroin and cocaine, in violation of 21 U.S.C. 846, as well as various substantive narcotics offenses. /2/ Rivera was sentenced to a total term of 30 years' imprisonment, to be followed by term of 10 years' special parole. Burgess was sentenced to a total term of 25 years' imprisonment, to be followed by a term of 10 years' special parole. Based on the jury's separate verdict of forfeiture, the district court also ordered Burgess's 27 quarter horses forfeited to the United States under 21 U.S.C. 853(a)(1) and (2). The court of appeals affirmed. 1. Petitioners Lorenzo Rivera and Willie Burgess, together with 25 other individuals, were charged with operating an extensive heroin and cocaine distribution ring in Georgia during the early 1980s. Since Burgess used his horse ranch in Covington, Georgia, as a "front" for his narcotics activities, the indictment also sought criminal forfeiture of that ranch, including the 27 quarter horses Burgess raised on that property, under 21 U.S.C. 853. Indictment at 58-61, United States v. Rivera, et al., Cir. No. 85-361-A (N.D. Ga. Nov. 8, 1985). /3/ Several months later, the government filed a separate complaint for civil forfeiture of Burgess's ranch under 21 U.S.C. 881. Complaint at 1-4, United States v. All That Tract or Parcel of Land Lying and Being in Land Lot 201 of the First Land District of Newton County, Georgia, No. C86-592-A (N.D. Ga. Mar. 14, 1986). /4/ The district court stayed the civil forfeiture proceedings pending disposition of the outstanding criminal charges. Petitioners' criminal trial was scheduled for February 1986. On November 12, 1985, Burgess's retained counsel, citing Burgess's inability to pay their fees, filed a motion seeking the district court's permission to withdraw. In addition, counsel asked the court to appoint them, under the terms of the Criminal Justice Act, 18 U.S.C. 3006A, to represent Burgess, or to appoint other counsel to do so. 89-6266 Pet. App. 10-14. The district court granted the motion to withdraw and, under the CJA, appointed another attorney to represent Burgess. Id. at 15-16. Burgess, without further objection, proceeded to trial with that attorney. 2. The evidence at trial, which included many secretly tape-recorded conversations among the various defendants, showed that petitioners Rivera and Burgess participated in a large-scale heroin and distribution operation in Georgia. Rivera was the primary source of high purity heroin and cocaine distributed through two networks. Burgess, Rivera's neighbor in Covington, supervised one of those distribution networks directly from his horse ranch. Co-defendant Jessie Davis oversaw the second distribution network from the convenience store she operated in downtown Atlanta. Each distribution network relied on dealers, who then "cut" and sold the narcotics to individual users. See Pet. App. 3a-4a; Gov't C.A. Br. 5-48. At trial, the government sought to introduce into evidence a five-page ledger seized during a search of Rivera's residence. That ledger, having headings such as "date," "quantity," "gave," "owed," and "person," recorded various narcotics transactions that, according to the government's expert witness, contained one entry in Rivera's handwriting. /5/ Rivera objected on the ground that the ledger, except for the entry allegedly written by him, was inadmissible hearsay. The district court admitted the entire ledger into evidence, concluding that that document "did not constitute inadmissible hearsay because the entry written by Rivera was an admission and the other entries were * * * adoptive admissions." Pet. App. 5a. 3. After the return of the jury's general verdict, the district court submitted to the jury the government's criminal forfeiture claims with respect to Burgess's ranch, Mercedes Benz, and quarter horses. /6/ The jury found only Burgess's 27 quarter horses forfeitable and the court therefore ordered those horses forfeited to the United States. See 89-6266 Pet. App. 17. /7/ 4. The court of appeals affirmed. Pet. App. 1a-46a. In the court of appeals, Burgess argued that the forfeiture allegation under 21 U.S.C. 853 charged in the indictment violated the Due Process Clause and otherwise interfered with his Sixth Amendment right to counsel. See Pet. C.A. Br. 10-28. The court rejected that contention without comment. /8/ Rivera, on the other hand, contended that the district court erroneously admitted into evidence the ledger recording various narcotics transactions that contained one entry in his handwriting. The court of appeals noted that Rivera "concedes that the entry written by him was properly introduced into evidence as an admission by a party opponent under Fed. R. Evid. 801(d)(2)," and that Rivera "does not question the authenticity of the ledger under Fed. R. Evid. 901." Pet. App. 5a. As a result, the court "assume(d) that the ledger is what it seems to be: a record of heroin sales to various individuals." Ibid. The court then found that the "ledger was not introduced * * * to prove the particulars of (its) contents, * * * but instead to demonstrate the existence of a series of heroin sales in which Rivera participated." Pet. App. 6a (internal quotation marks and citation omitted). /9/ And the court analogized this case to one in which the "defendant's financial statement is introduced not to prove that he made a deposit or withdrawal of a specified amount on a particular date, but rather to demonstrate the existence of the defendant's bank account." Ibid. (citing Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253, 1260 (11th Cir. 1983)). The court therefore held that "the ledger was not hearsay and that it was admissible to prove Rivera's involvement in the heroin conspiracy." Ibid. The court of appeals also rejected petitioner Rivera's claim that the government had not presented sufficient evidence to support his conviction on five counts charging him with possessing heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). The court determined, after reviewing the record, "that the evidence in support of these counts -- tape-recorded telephone conversations -- was sufficient to support a conviction even though no drugs pertaining to these counts were seized." Pet. App. 7a. /10/ ARGUMENT 1. Petitioner Rivera first renews his contention (Pet. 6-9) that the district court erroneously admitted into evidence a ledger recording various narcotics transactions that contained one entry in his handwriting. Rivera does not challenge the authenticity of that document; nor does he challenge the court of appeals' determination that the "ledger was not introduced * * * to prove the particulars of (its) contents, * * * but instead to demonstrate the existence of a series of heroin sales in which Rivera participated." Pet. App. 6a (internal quotation marks and citation omitted). In these circumstances, the courts of appeals have uniformly concluded that such a document (if relevant and authentic) is admissible because it is "not offered to prove the truth of the facts asserted therein." United States v. Wilson, 532 F.2d 641, 645 (8th Cir.), cert. denied, 429 U.S. 846 (1976); see United States v. Mahar, 801 F.2d 1477, 1491-1492 (6th Cir. 1986); United States v. Moscatiello, 771 F.2d 589, 604-605 (1st Cir. 1985), vacated on other grounds, 476 U.S. 1138 (1986); United States v. Ordonez, 737 F.2d 793, 799 (9th Cir. 1984). Accordingly, the court of appeals correctly upheld the admission of the ledger into evidence to show Rivera's involvement with the narcotics enterprise. Rivera errs in claiming (Pet. 7-8) that the court of appeals' decision conflicts with United States v. Mahar, supra and United States v. Ordonez, supra. In those decisions, the Sixth and Ninth Circuits cited the basic principle outlined above, but concluded that documents were improperly admitted into evidence after determining that the government had introduced the documents for the express purpose of proving the truth of their contents. See Mahar, 801 F.2d at 1492 ("it appears from the government's use of the notes at trial that the government did intend to convince the jury of the truth of the matter of several statements in the notes"); Ordonez, 737 F.2d at 798-807; see also United States v. Mouzin, 785 F.2d 682, 691-692 (9th Cir. 1986). Here, in contrast, the record shows that the ledger was not admitted into evidence for that purpose. For that reason, the decision below is consistent with Mahar, Ordonez, and Mouzin. /11/ 2. Rivera also contends (Pet. 9-10) that the district court violated Federal Rule of Criminal Procedure 32(c)(3)(D) by not appending to the presentence investigation report a "written record of (the court's) findings and determinations" regarding disputed issues of fact contained in that report. At sentencing, several defendants, including Rivera, challenged the presentence investigation report's acceptance of the government's "estimate" that "Rivera sold the equivalent of twelve kilograms of street purity-heroin to the co-defendants in this case." Pet. App. 13a. The district court, however, "specifically held that it would utilize neither the Government's nor the defendants' estimation of the amount of drugs involved in the case in determining the sentences which it would hand down." Id. at 14a; see Gov't C.A. Br. 89-92. And as a result of that decision, the district court evidently did not attach to the presentence investigation report a written record of its determination. In these circumstances, the district court's apparent omission violated the terms of Rule 32(c)(3)(D). Nevertheless, the record shows that Rivera has not taken any steps to have the district court rectify that oversing, and we know of no impediment to having that minor omission corrected now. Moreover, even if that omission remains uncorrected, it is unlikely that Rivera will suffer any adverse consequences with respect to parole eligibility or institutional assigments. The record of the sentencing is quite clear that the district court did not credit the prosecutor's version of the quantity of heroin involved. Rivera need only present a certified copy of the transcript of that proceeding, if necessary, to the appropriate officials in the Bureau of Prisons or the Parole Commission in order to avoid having those officials mistakenly rely on that aspect of the presentence investigation report. 3. Finally, Rivera renews his contention (Pet. 11-13) that the government did not present sufficient evidence to support his conviction on five counts charging him with possessing heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). That claim is meritless. With respect to those particular charges, the government presented tape-recorded conversations between Rivera and his cohorts in which Rivera stated, albeit in code, that he had heroin at this ranch and sought to distribute it through the networks he had established. See Pet. App. 7a; Gov't C.A. Br. 60-64. In these circumstances, the court of appeals correctly held, the evidence was "sufficient to support a conviction even though no drugs pertaining to these counts were seized," particularly where, as here, independent evidence showed that Rivera distributed large quantities of heroin from his residence during the relevant time period. Pet. App. 7a. /12/ 4. Petitioner Burgess renews his claim (Pet. 11-22) that the forfeiture allegation under 21 U.S.C. 853 charged in the indictment violated the Due Process Clause and otherwise interfered with his Sixth Amendment right to counsel. /13/ This Court's recent decisions in United States v. Monsanto, 109 S. Ct. 2657 (1989), and Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646 (1989), however, foreclose that claim. Here, Burgess's property was properly subject both to civil and criminal forfeiture proceedings under 21 U.S.C. 881 and 21 U.S.C. 853. The "relation back" doctrine thus restricted Burgess's right to use property that was otherwise subject to forfeiture. See 21 U.S.C. 853(c); 21 U.S.C. 881(h); Caplin & Drysdale, 109 S. Ct. at 2653; Monsanto, 109 S. Ct. at 2665. And under those decisions, the pertinent forfeiture provisions, as applied in this case, do not violate the Due Process Clause or impermissibly interfere with a criminal defendant's Sixth Amendment right to counsel. Caplin & Drysdale, 109 S. Ct. at 2651-2656; Monsanto, 109 S. Ct. at 2665-2666. /14/ CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General SARA CRISCITELLI RICHARD A. FRIEDMAN Attorneys FEBRUARY 1990 /1/ "Pet. App." refers to the appendix to the petition in No. 89-6226. /2/ Rivera was also convicted on eight counts charging him with possession of heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and 13 counts charging him with use of a telephone to facilitate the conspiracy to distribute heroine and cocaine, in violation of 21 U.S.C. 843(b). Burgess was also convicted on 13 counts charging him with possession of heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), 24 counts charging him with use of a telephone to facilitate the conspiracy to distribute heroine and cocaine, in violation of 21 U.S.C. 843(b), and one count charging him with possession of firearms by a previously convicted felon, in violation of 18 U.S.C. App. 1202 (Supp. II 1984). /3/ The indictment also sought criminal forfeiture of Burgess's 1978 Mercedes, 1956 Chevrolet coupe, and 60 specified pieces of jewelry. Indictment at 58-61, United States v. Rivera, et al., Cr. No. 85-361-A (N.D. Ga. Nov. 8, 1985). /4/ The civil complaint alleged two grounds for forfeiture: (1) Burgess bought the ranch with proceeds of illegal narcotics transactions, rendering that property forfeitable under 21 U.S.C. 881(a)(6); and (2) Burgess used or intended to use the ranch to facilitate the commission of a narcotics violation, rendering that property forfeitable under 21 U.S.C. 881(a)(7). Complaint at 2-3, United States v. All That Tract or Parcel of Land Lying and Being in Land Lot 201 of the First Land District of Newton County, Georgia, No. C86-592-A (N.D. Ga. Mar. 14, 1986). The government later filed another similar complaint for civil forfeiture of many of the pieces of Burgess's jewelry identified in the indictment (see note 3, supra). Complaint at 1-3, United States v. Fifty-Six (56) Items of Assorted Jewelry, No. C86-2358-A (N.D. Ga. Nov. 3, 1986). /5/ The government offered no proof with respect to the authorship of any other entry in the ledger. Pet. App. 5a. /6/ On the government's motion, the district court had dismissed the criminal forfeiture claims against Burgess's Chevrolet and jewelry. /7/ The government later completed the outstanding civil forfeiture proceedings against Burgess's ranch and jewelry. In May 1989, the district court ordered the jewelry forfeited to the United States. Judgment Order 1-5, United States v. Fifty-Six (56) Items of Assorted Jewelry, No. C86-2358-A (N.D. Ga. May 5, 1989). Burgess sought no further review of that judgment. In another civil proceeding, the district court ordered Burgess's ranch forfeited to the United States. Judgement Order 1-2, United States v. All That Tract or Parcel of Land (2015 Woodlawn Road), No. 89-8203 (11th Cir. Aug. 30, 1989). Burgess has not sought further review of that order. /8/ The court of appeals also rejected Burgess's claims that a government witness's statement violated the principles set forth in Bruton v. United States, 391 U.S. 123 (1968), that the government had employed a cooperating witness under an impermissible contingent fee arrangement, that the district court should have declared a mistrial after a government witness alluded to Burgess's previous imprisonment, and that the district court should have granted a severance. Pet. App. 8a-10a. Burgess has not sought further review of those claims. In a separate opinion, the court of appeals also rejected Burgess's contention that the district court erred in forfeiting his quarter horses to the United States under 21 U.S.C. 853. 89-6266 Pet. App. 32-34. Burgess has not sought further review of that claim. /9/ The court pointed out that the government, with the exception of the one entry written by Rivera, had redacted the names of the individuals listed under the "person" column of the ledger. Pet. App. 6a. /10/ Lastly, the court of appeals rejected Rivera's claim that his conviction on one Section 843(b) count could not stand where the jury had acquitted the individual with whom he had the alleged conversation. Pet. App. 7a-8a. Rivera has sought no further review of that claim. /11/ Rivera suggests (Pet. 4, 7-8 & n.6) that the prosecutor's comment in rebuttal argument shows that the government did use the ledger as substantive proof of the narcotics transactions contained in that document. That comment, however, which mentioned at random one entry in the ledger, merely illustrated what the ledger purported to be -- a record of narcotics transactions -- and did not seek to have the jury infer that specific transactions in fact occurred based on the ledger entries. /12/ For that reason as well, Rivera errs in suggesting (Pet. 12-13) that the court of appeals' decision may not be squared with United States v. Lewis, 759 F.2d 1316 (8th Cir. 1985), and United States v. Suarez, 487 F.2d 236 (5th Cir. 1983). /13/ Burgess contends in passing (Pet. 18-19) that the district court's refusal to appoint his previously retained counsel to represent him under the Criminal Justice Act, see p. 4, supra, violated the Sixth Amendment. The Sixth Amendment guarantees a criminal defendant the assistance of counsel -- whether retained by the defendant or provided at the government's expense. The Amendment, however, does not guarantee that an indigent defendant has the right to appointed counsel of his own choosing. The district court thus acted well within its authority under the Criminal Justice Act -- and consistently with the Sixth Amendment -- in appointing counsel other than Burgess's previously retained counsel to represent him. In any event, Burgess did not raise that issue before the court of appeals, and has therefore not preserved it for review before this Court. /14/ Burgess suggests (e.g., Pet. 16) that the inclusion of the forfeiture allegations in the indictment was tantamount to per se prosecutorial misconduct. See Monsanto, 109 S. Ct. at 2657. The record belies that claim, since the government successfully prosecuted criminal and civil forfeiture actions against the principal items of Burgess's real and personal property identified in the indictment. See p.3 and notes 4, 7, supra. Finally, Burgess contends (Pet. 20-21) that the forfeiture allegations in the indictment violated 18 U.S.C. 3563 (1982 ed.), which provided in pertinent part that "(n)o conviction or judgement shall work corruption of blood or forfeiture of estate." That provision stemmed from the Act of Apr. 30, 1790, ch. 9, Section 24, 1 Stat. 117, which showed Congress's early rejection of "the traditional forfeiture of all of a felon's property even if it had no connection with the crime." United States v. Sandini, 816 F.2d 869, 873 (1987). That bar against forfeiture of an "estate" unrelated to criminal activity, however, did not apply to criminal forfeiture of property specifically acquired by proceeds of criminal activity or used to facilitate such activity, as Congress made plain in later enacting the forfeiture provisions in 21 U.S.C. 853 and 21 U.S.C. 881. In any event, Congress repealed Section 3563 effective as of November 1, 1986. See Pub. L. No. 98-473, Title II, Section 212(a)(2), 98 Stat. 1987 (1984). The issue Burgess raises therefore does not warrant further review by this Court.