JOSE TORRES-GARCIA, PETITIONER V. UNITED STATES OF AMERICA No. 90-6508 In The Supreme Court Of The United States October Term, 1990 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. A1-A9) is not reported, but the decision is noted at 905 F.2d 1541 (Table). JURISDICTION The judgment of the court of appeals was entered on June 29, 1990. A petition for rehearing was denied on September 12, 1990. The petition for a writ of certiorari was filed on December 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly instructed the jury on aiding and abetting the possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). STATEMENT After a jury trial in the United States District Court for the Southern District of California, petitioner was convicted of possessing nine kilograms of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 120 months' imprisonment and five years' supervised release. The court of appeals affirmed in an unpublished judgment memorandum. 1. In January 1989, the government learned through an informant that Aurelia Angulo-Rodriguez (Angulo) wished to purchase cocaine. The informant gave Angulo the phone number of David Hathaway, an undercover agent of the Drug Enforcement Administration. Angulo phoned Agent Hathaway and made arrangements to purchase eight kilograms of cocaine. At the prearranged time and place, Angulo, Angulo's son, and petitioner met Hathaway and other agents of the DEA. Angulo told Hathaway that she had the money, and they again discussed how many kilograms Angulo would purchase. The other DEA agents showed the cocaine to petitioner and Angulo. After petitioner inspected a sample of the cocaine, Angulo indicated that she would buy nine kilograms. While Angulo counted out $81,000 in cash, petitioner removed nine kilograms of cocaine from the trunk of the DEA agents' car and transferred the cocaine to Angulo's car. Angulo and petitioner were then arrested. Pet. App. A2-A3. 2. At the conclusion of the trial, the district judge instructed the jury, among other things, on possession with intent to distribute, simple possession, and aiding and abetting these offenses. After a period of deliberation, the jury returned with a question for the judge: "Does mere knowledge of future distribution constitute intent to distribute? Please clarify. We have read your instructions." The judge told the jury: The essential elements, in order to be proved to establish the offense of possession with intent to distribute are: First is that defendant possessed with the intent to distribute a controlled substance and that the defendant did such act knowingly and intentionally, and an act or omission is knowingly done if done voluntarily and intentionally and not because of mistake or accident or other innocent reason, and the question is ambiguous to us in that we don't know whether you're asking whether the knowledge of one of the defendants that the other one intends to deliver or transfer this cocaine to someone else is going to distribute it farther down the line is what you're asking, so we need to have your question clarified before I can give you any further answer. Do you understand what I mean? I think probably you'd better go back into the jury room where you can talk among yourselves and we'll wait right here to get another question from you. After deliberating further, the jury returned with a second question: "If a person is in possession of drugs and knows that another person has intent to distribute those drugs is that person also guilty of intent to distribute?" The district court answered "yes," over petitioner's objection, and petitioner was convicted. Pet. App. A3-A4. /1/ 3. The court of appeals affirmed. The court first rejected petitioner's contention that, under an aiding and abetting theory, the jury was required to find that he had the same specific intent as the principal. The court of appeals noted that the two cases upon which petitioner relied, United States v. Short, 493 F.2d 1170 (9th Cir.), cert. denied, 419 U.S. 1000 (1974), and United States v. Jones, 592 F.2d 1038 (9th Cir.), cert. denied, 441 U.S. 951 (1979), did not involve a trial court's failure to instruct the jury properly. The convictions in those cases were reversed because "the prosecution (had) failed to present any evidence at all that the defendants knew of their accomplice's intent to use deadly weapons." Pet. App. A5-A6. In this case, by contrast, the court found that "sufficient evidence in the record showed that (petitioner) did know that Angulo intended to distribute the nine kilograms of cocaine." Pet. App. A6. Petitioner was "present during the drug negotiations, he examined a sample of the cocaine, he transferred and loaded the nine kilograms from the DEA agents' car into the vehicle driven by Angulo, and he was present at the drug sale at the request of Angulo." Ibid. Thus, according to the court, "(a)lthough (petitioner) may not have had the specific intent to distribute the drugs himself," the jury could have concluded that petitioner knew Angulo intended to distribute the cocaine, and intentionally aided and abetted her in obtaining the cocaine for that purpose. Ibid. The court of appeals also found that the district court's instructions to the jury, read as a whole, did not "constitute any reversible error." Pet. App. A7. The court noted that the district court had "carefully instructed the jury on actual and constructive possession, intent to distribute, and the lesser-included offense of possession," and had "previously informed the jury in explicit terms of each element of the crime with which (petitioner) was charged and adequately instructed on the aiding and abetting theory." Ibid. Because these earlier instructions had "'correctly specified each of the elements of the charge of possession with intent to distribute * * * (r)ead as a whole, * * * (the instructions) properly conveyed to the jury the findings that were necessary to support a guilty verdict.'" Pet. App. A6-A7 (quoting United States v. Wright, 742 F.2d 1215, 1222 (9th Cir. 1984)). Thus, the court of appeals concluded that "the district court (had) not abuse(d) its discretion in responding to the jury's question in the manner it did." Pet. App. A7. ARGUMENT Petitioner contends (Pet. 6-8) that the supplemental instruction constituted reversible error. In examining the correctness of jury instructions, a court must review the entire jury charge to determine whether, taken as a whole, the issues and law were properly presented to the jury. United States v. Park, 421 U.S. 658, 674 (1975) ("a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge") (quotation omitted); see also California v. Brown, 479 U.S. 538, 541 (1987). Thus, the propriety of the district court's supplemental instruction "must be evaluated in light of the totality of the circumstances considering the complete instruction given to the jury," United States v. Colatriano, 624 F.2d 686, 690 (5th Cir. 1980) (citing Kentucky v. Whorton, 441 U.S. 786, 789 (1979)), as well as the record at trial, Park, 421 U.S. at 674-675. Petitioner admitted in his testimony at trial that he had taken nine kilograms of cocaine out of the DEA agents' car and transferred the cocaine to Angulo's car. Gov't C.A. Br. 13. Given the large amount of drugs involved, it is inconceivable that the jury doubted that petitioner knew Angulo intended to distribute the cocaine. Nor can the jury have doubted that petitioner intended to aid and abet Angulo's possession of cocaine when he transferred the cocaine to her car. The jury's question -- whether a defendant is "guilty of intent to distribute" if he "is in possession of drugs and knows that another person has intent to distribute those drugs" -- indicated, rather, the jury's uncertainty about whether it had to find that petitioner intended to distribute the cocaine himself. The district court's answer to the jury's question properly indicated to the jury that it did not. This clarification, when viewed against the backdrop of the court's initial charge to the jury, did not, as petitioner argues (Pet. 8), "permit petitioner to be convicted based upon his knowledge alone." The district court had previously given the jury detailed aiding and abetting instructions, /2/ the correctness of which petitioner does not challenge. The court also "carefully instructed the jury on actual and contructive possession, intent to distribute, and the lesser included offense of possession," and "informed the jury in explicit terms of each element of the crime with which (petitioner) was charged." Pet. App. A7. Taking the original and supplemental instructions together, the jury was properly instructed that it could convict petitioner if it found that he knew Angulo intended to distribute the cocaine, and, with that knowledge, intentionally aided Angulo's possession of the cocaine. See Park, 421 U.S. at 674-675. /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General GEOFFREY R. BRIGHAM Attorney APRIL 1991 /1/ The jury also convicted Angulo, and the court of appeals affirmed her conviction along with petitioner's. Pet. App. A7-A9. /2/ Those instructions read in part (Gov't C.A. Br. 8-9): In a case where two or more persons are charged with the commission of a crime, the guilt of any defendant may be established without proof that he or she personally did every act constituting the offense charged. Whoever commits an offense against the United States or aids, abets, counsels, commands, induces, or procures its commission is punishable as a principal. Whoever willfully causes an act to be done which, if directly performed by him or another, would be an offense against the United States, is punishable as a principal. In other words, every person who willfully participates in the commission of a crime may be found to be guilty of that offense. Participation is willful if done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done; that is to say, with the bad purpose to either disobey or disregard the law. Mere presence and acquiescence in a crime is not enough to prove aiding and abetting. The defendant must have a purposeful attitude which facilitates the unlawful deed. The defendant must have shown some affirmative participation which at least encouraged the perpetrator. /3/ Nye and Nissen v. United States, 336 U.S. 613 (1949), is not to the contrary. That case held that a defendant could be convicted on a theory of aiding and abetting if he "in some sort associate(d) himself with the venture, that he participate(d) in it as in something that he wishe(d) to bring about, that he (sought) by his action to make it succeed." 336 U.S. at 619. Petitioner's accompanying Angulo to a large drug purchase, inspecting the cocaine, and transferring the cocaine from the DEA agents' car to Angulo's car, provides ample support for the jury's conclusion that petitioner aided and abetted Angulo's possession of cocaine with intent to distribute it.