DOUGLAS LOREN MARSH, PETITIONER V. UNITED STATES OF AMERICA No. 89-6085 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App. 10581, 10584-10603, is not yet reported. /1/ JURISDICTION The judgement of the court of appeals was entered on August 31, 1989. The petition for a writ of certiorari was filed on November 20, 1989, and is therefore untimely. Sup. Ct. R. 20.1 (1980). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court abused its discretion when it denied petitioner's motions for a continuance and a severance. 2. Whether the district court erred in denying petitioner's motion for a mistrial after his co-defendant's attorney commented on his failure to testify. 3. Whether the district court erred in instructing the jury that ignorance of the law is no excuse. 4. Whether petitioner's sentence conformed to the Sentencing Guidelines and whether the Guidelines violate the Due Process Clause. STATEMENT After a jury trial in the United States District Court for the Northern District of California, petitioner was convicted of attempt to manufacture and conspiracy to manufacture 4-methylaminorex 2-amino-4-methyl-5-phenyl-2-oxazoline (also known as "ice" or "euphoria"), a controlled substance, in violation of 21 U.S.C. 846. He was sentenced to 51 months' imprisonment. The court of appeals affirmed petitioner's convictions and sentence. /2/ 1. The evidence at trial showed that the police arrested petitioner in his Florida residence in March 1987, pursuant to an arrest warrant. They seized "ice," marijuana roaches, cyanogen bromide (a chemical used in the manufacture of "ice"), and a letter from petitioner to a third party stating that he had started to make "ice" again. The police also found a ledger in the purse of co-defendant Kathleen Parker, who later married petitioner. The ledger listed names and amounts of money owed to petitioner for sales of "ice" and other drugs. Pet. App. 10586, 10590; Gov't C.A. Br. 3-4. Petitioner was not prosecuted for possessing or manufacturing "ice" at that time because that drug did not become a controlled substance until October 1987. Pet. App. 10586, 10590; Gov't C.A. Br. 4; Pet. 14-15. On December 10, 1987, petitioner ordered chemicals from a chemical sales company in Connecticut, identifying his business as "Chemical Testing Services" but listing his home address in Florida. He subsequently directed that the shipment be sent to a woman in Atlanta. The chemical company recognized that some of the chemicals ordered by petitioner are precursors of illegal drugs. It notified the Drug Enforcement Administration, which intercepted the shipment and delivered it to the Atlanta woman. Pet. App. 10586-10587; Gov't C.A. Br. 5-7, 9. At the agents' request, the woman made a recorded phone call to petitioner in which he told her to send the chemicals to his and Kathleen's hotel room in San Francisco. Pet. App. 10587; Gov't C.A. Br. 6-7. Subsequently, a DEA agent disguised as an UPS delivery man delivered the chemicals to the hotel room. Petitioner was not there, but his wife Kathleen signed for the packages containing the chemicals. Soon thereafter the agents obtained a search warrant and seized the chemicals as well as instructions, ingredients, and other items used in the manufacture of "ice." Pet. App. 10588-10589; Gov't C.A. Br. 7-8. When told that he was being arrested for attempting to manufacture a controlled substance, petitioner responded that he was merely researching the manufacture of "Roach-It," an insecticide. Pet. App. 10588-10589; Gov't C.A. Br. 8. 2. Petitioner and his wife jointly moved for a severance prior to trial on the ground that they had antagonistic defenses. Five days before trial, petitioner's counsel also moved for a continuance on the ground that petitioner had just given him a witness list in support of a "new defense." Counsel stated that, although they had previously spent considerable time together, petitioner had only recently begun to communicate effectively with him. The district court denied both motions, but authorized additional funds for petitioner's investigative expenses and indicated its willingness to reconsider its continuance ruling "(i)f the investigator does his work and these are valuable witnesses." On the day of trial, counsel made no further mention of the continuance. Pet. App. 10590, 10596; Gov't C.A. Br. 10-13. At trial, Kathleen testified but petitioner did not take the stand. They both relied on the same defense -- i.e., that they were making a roach killer, not a drug that they mistakenly believed to be legal. Pet. App. 10590, 10597; Gov't C.A. Br. 13-17, 23-26, 28. /3/ A DEA forensic chemist testified for the government, however, that no commercially available insecticide or roach killer is manufactured from a combination of the chemicals seized. It was his opinion that the chemicals were to be used to make "ice." Pet. App. 10589; Gov't C.A. Br. 8. 3. The court of appeals affirmed petitioner's convictions and sentence. Pet. App. 10584-10603. ARGUMENT 1. Petitioner renews his contention that he was entitled to a continuance five days before trial because he "did not have enough time to adequately prepare" his defense. Pet. 7-9. He also renews his claim that the district court should have severed his trial from his wife's because they had "antagonistic defenses." Pet. 9-12. a. As petitioner correctly concedes, Pet. 7, it is well settled that trial courts have broad discretion to grant or deny continuances, and will be reversed on appeal only for abuse of that discretion. Morris v. Slappy, 461 U.S. 1, 11 (1983); Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The district court here did not abuse its discretion in denying petitioner's motion for a continuance because petitioner himself had delayed the preparation of his case by refusing to discuss it with his attorney until shortly before trial. Petitioner ostensibly requested a continuance in order to locate witnesses in connection with a defense of which he had only recently decided to inform his attorney. But petitioner himself acknowledges that he did not "provide counsel with important information" and "share his defense" until he felt he could "develop confidence" and "the willingness to confide" in him, and establish a "rapport" and "the necessary relationship" with him. Pet. App. 10596; Gov't C.A. Br. 10-13; Pet. 8-9. The Sixth Amendment right to counsel, however, does not include the right to a "meaningful attorney-client relationship." Cf. Morris v. Slappy, supra. In any event, petitioner has yet to provide a convincing explanation how a continuance would have aided his defense. Petitioner's only specific claim is that he needed time to analyze a tape recording, disclosed to him by the government several days before trial, in which he and an informant discussed a drug sale. Pet. 8-9. But the government neither introduced nor mentioned this tape during the trial. Gov't C.A. Br. 12. The district court's decision to deny petitioner's eleventh-hour motion for a continuance was well within its discretion, as the court of appeals correctly determined. b. As petitioner acknowledges, the district court's denial of his motion for severance is likewise reviewable only for abuse of discretion. Pet. 9-10. A prerequisite to establishing abuse of discretion in this context is a demonstration that petitioner was prejudiced by the joint trial -- i.e., that petitioner's defense was in direct conflict with that of his wife. See United States v. Lane, 474 U.S. 438, 449 n.12 (1986) ("The first hurdle in obtaining a severance under (Federal) Rule (of Criminal Procedure) 14 is a showing of prejudice, and if shown, it remains in the district court's discretion whether to grant the motion"). As the court of appeals concluded, however, the record does not show that petitioner's and his wife's defenses were mutually antagonistic. Pet. App. 10597. To the contrary, the record reveals that petitioner and his wife both argued that they were making a roach killer, not an illegal drug. Gov't C.A. Br. 8-9, 13-17, 23-26, 28. It was this shared defense that the jury rejected in convicting both of conspiracy, a fact that loses none of its significance simply because petitioner, but not his wife, was also convicted of attempt. Far from undermining petitioner's defense, his wife's testimony enabled him to place his defense before the jury while insulating himself from cross-examination. His wife testified, for example, that petitioner could not possibly have made the "ice" that was seized in the Florida search; that since March 1987, he had "completely rehabilitated" himself, had nothing to do with drugs, and had expressed a desire to engage in legal activities; and that, to her knowledge, the substance petitioner was going to make from the chemicals they had received was not "ice" but "Roach-It," an insecticide. Gov't C.A. Br. 17. Indeed, some of her testimony was more favorable to petitioner than to herself. She admitted that she had a degree in science and that it was she who had instructed petitioner in the mixing of chemicals. Gov't C.A. Br. 8-9; Pet. 11. Petitioner was plainly not prejudiced by the joint trial with his wife. 2. Petitioner renews his contention that the district court committed reversible error when it denied his motion for a mistrial after his wife's attorney, in closing argument, referred to his failure to testify. Pet. 21-23. In that summation, his wife's attorney argued that his client had testified truthfully when she denied knowing that she had signed for packages containing chemicals with which to make illegal drugs. He stated that petitioner had told her that he had arranged for some personal items to be delivered. The attorney next asserted: "I'm going to tell you the simple truth of this case, ladies and gentlemen, there's only one person that could have told you but he didn't take the stand." Pet. App. 10590. Petitioner objected, and the district court admonished counsel that he was "not to comment on that." Gov't C.A. Br. 27. No further reference to the comment was made in front of the jury. Petitioner neither requested a curative instruction nor moved to strike the remark. When he moved for a mistrial at the close of the defense case, the district court denied the motion. The record as a whole makes it clear beyond a reasonable doubt that the jury would have found petitioner guilty even if his wife's attorney had not made the one brief remark at issue. United States v. Hasting, 461 U.S. 499, 510-511 (1982) (prosecutor's comment on failure to testify subject to harmless error analysis, under the standard of Chapman v. California, 386 U.S. 18 (1967)). /4/ As the court of appeals found, in light of "the heavy evidence" against petitioner, the "single isolated statement" by the wife's attorney did not affect the verdict. Pet. App. 10598. Furthermore, the remark was unaccompanied by prosecutorial misconduct of any kind and prompted an immediate admonition from the district court. This admonition reinforced the court's two previous instructions to the jury, given before trial and before closing argument, that a defendant is not obliged to testify and that, in arriving at its verdict, the jurors may not consider the fact that a defendant has not testified. Pet. App. 10590; Gov't C.A. Br. 26-33. /5/ In addition, this case did not involve mutually exclusive defenses, so the remark could not have carried the sting that it might have in a case in which co-defendants advanced antagonistic defenses. In short, the district court was within its discretion in ruling that the co-defendant's improper remark did not warrant a mistrial. Cf. Arizona v. Washington, 434 U.S. 497, 511, 513-514 (1977) (trial judge's evaluation of impact of improper comment on jury deserves "highest degree of respect"). 3. Petitioner renews his contention that the district court erred in giving a supplemental instruction that "ignorance of the law is no excuse" to the jury when it asked whether, in order to convict, it had to find that petitioner and his wife knew that it had become illegal to make the product that they had previously made legally. Pet. 12-21. During its deliberations, the jury asked whether an individual is "breaking the law" if he continues to make something he had been making legally after a new law, unbeknownst to him, prohibits its manufacture. The district court informed counsel that it was inclined to instruct the jury that ignorance of the law is no excuse. Defense counsel urged the court to reread an earlier instruction to the jury, which stated, in pertinent part: In order for a defendant to be found guilty of attempting to maufacture and conspiracy to manufacture ("ice"), the government must prove that a defendant knowingly attempted to manufacture (it). It is sufficient that he or she knew that it was some kind of controlled substance, that is, a prohibited drug." Pet. App. 10591 n.7. The court did not repeat this instruction, but instead told the jury that "(i)gnorance of the law is no excuse." Pet. App. 10591. Two hours later, the jury asked whether "you have to know that the conspiracy plan is unlawful to be guilty." Gov't C.A. Br. 19 (emphasis in original). Without objection, the court answered "yes." Ibid. See Pet. App. 10591, 10598-10600; Gov't C.A. Br. 17-26. As the court of appeals recognized, Pet. App. 10599, and as petitioner himself concedes, Pet. 12-13, 20, the general rule is that ignorance of the law is no excuse. /6/ See United States v. International Minerals & Chemical Corp., 402 U.S. 558, 562, 563 (1971) (knowledge of regulation requiring shipping papers to indicate the dangerous nature of items shipped not required for conviction); United States v. Freed, 401 U.S. 601 (1971) (knowledge of law requiring firearms to be registered not required to convict); United States v. Balint, 258 U.S. 250, 252 (1921) (rejecting claim that "punishment of a person for an act in violation of law"). That rule applies with particular force where "Congress has rendered criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." Liparota v. United States, 471 U.S. 419, 433 (1985). There is perhaps no type of conduct more dangerous to the public health and safety or more thoroughly regulated than the manufacture and sale of controlled substances. The Balint case itself involved a statute "whose manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him." 258 U.S. at 254. Although petitioner was charged not with selling drugs, but with conspiring and attempting to manufacture them, he bore precisely the same risk as the defendant in Balint that his supposed unawareness of the law would redound to his detriment. As the court of appeals correctly observed, a reasonable person would have known that drug manufacturing is stringently regulated because of the threat that drugs, including "designer drugs" like "ice," pose to society. Pet. App. 10598-10600. 4. Finally, petitioner renews his contention that his case should be remanded for resentencing. Pet. 24-28. a. Petitioner first argues that the district court erroneously interpreted the Guidelines issued under the Sentencing Reform Act of 1984 when it analogized "ice," which is not mentioned in the Guidelines, to amphetamine for purposes of arriving at a base offense level. Finding no entry for "euphoria" or "ice" in the list of drug base offense levels at Section 2D1.1 of the Sentencing Guidelines, however, the district court correctly reasoned that Guideline 2X5.1 required it to determine the most analogous Guideline to apply in sentencing for the crimes of conspiracy and attempt to maufacture "euphoria" or "ice." Of similar effect, as the court of appeals noted, is Guideline 1B1.2, which instructs the sentencing court to look for analogies when the crime is one "for which no Guideline expressly has been promulgated." Pet. App. 10601, 10602. After holding an evidentiary hearing at which three experts testified, the district court ruled that the most analogous drug was amphetamine and that 333 grams of that drug (an amount that petitioner does not contest) would have been produced from the chemicals seized from petitioner. Pet. App. 10591-10592, 10600-10603; Gov't C.A. Br. 34-37; Pet. 25. On appeal, the court of appeals held that the district court had "properly applied the Sentencing Guidelines to an offense with no applicable Guideline in a reasonable manner." Pet. App. 10600-10603. This factual finding, which the court below reviewed under a clearly erroneous standard, does not conflict with the decision of any other court and merits no further review. b. Petitioner also challenges his sentence on a ground that he raised below, but that the court of appeals did not address. Relying on United States v. Davis, 715 F. Supp. 1473 (C.D. Cal. 1989), petitioner claims that the Sentencing Guidelines are unconstitutional because they violate due process. Pet. 28. In Davis, the district court ruled that the Guidelines unconstitutionally require that sentences be determined on the basis of factors that have not necessarily been proven beyond a reasonable doubt. It reasoned that all factors for which sentence is imposed must be proven beyond a reasonable doubt before a sentencing court may properly take account of them. The district court's decision in Davis conflicts with McMillan v. Pennsylvania, 477 U.S. 79 (1986), in which this Court held that a state's sentencing scheme afforded due process where it required that certain sentencing factors be proven by a preponderance of the evidence. In so holding, this Court observed that "(s)entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all," and that nothing in the state's scheme warranted "constitutionalizing burdens of proof at sentencing." McMillan v. Pennsylvania, 477 U.S. at 91-92. It follows that the factors used in determining a sentence under the Sentencing Guidelines need not be proven beyond a reasonable doubt, as the district court in Davis thought, and that the Guidelines afford due process. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General VICKI S. MARANI Attorney JANUARY 1990 /1/ The court of appeals' opinion that appears in the appendix to the petition for certiorari was filed on August 31, 1989. An amended opinion was filed on January 9, 1990. The amendments are not substantive. Accordingly, for purposes of consistency with references in the petition, the references herein are to the original court of appeals' opinion. /2/ Petitioner was tried jointly with his wife, Kathleen Renee Marsh, who was convicted of conspiracy to manufacture but acquitted of attempt to manufacture a controlled substance. She was sentenced to 27 months' imprisonment. The court of appeals affirmed her conviction in the same decision that affirmed petitioner's convictions. /3/ Petitioner called an expert witness in support of this defense who testified that the "Roach-It" recipe was not a recipe for anything, and that he himself would not be able to manufacture "ice" from it. Gov't C.A. Br. 24. Petitioner's cross-examination of his wife, her witnesses, and the government's witnesses also focused on the "Roach-It" defense rather than on his alleged belief that he was making a legal drug. Gov't C.A. Br. 24-25. His wife testified that she thought both she and petitioner were making a roach killer that he was going to have patented. Gov't C.A. Br. 17. /4/ Parenthetically, we note that an attorney's comment on a co-defendant's failure to testify is not to be equated with similar comment by a prosecutor for purposes of determining whether reversible error has been committed. To begin with, the Fifth Amendment's privilege against self-incrimination "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Griffin v. California, 380 U.S. 609, 615 (1965) (emphasis added)). In addition, a co-defendant's attorney, unlike a prosecutor, lacks "an institutional interest in the defendant's guilt," a fact that makes it "inappropriate to find reversible error as a matter of course" when that attorney comments on the failure to testify. United States v. Mena, 863 F.2d 1522 (11th Cir.), cert. denied, 110 S. Ct. 109 (1989). These distinctions are not only of theoretical significance; they have practical consequences for the conduct of joint trials. With co-defendants, there is always the possibility of collusion on trial strategy and the creation of appealable issues. Obviously, this possibility is even stronger where, as here, the co-defendants are married and their defenses are identical. A mistrial would, of course, have enabled petitioner to obtain precisely what the district court had already properly denied him -- i.e., a separate trial. /5/ Petitioner's complaint that the district court should have done more than admonish counsel "not to comment on that," Pet. 23, is a belated one, since his attorney chose not to move to strike the comment or to request curative instructions. Gov't C.A. Br. 27. /6/ We assume for purposes of this discussion that petitioner was unaware that "ice" is a controlled substance. The evidence at trial, however, was more than sufficient to establish that petitioner was quite aware of its controlled nature. See Gov't C.A. Br. 25-26.