RUBEN ROCHA AND JOSE SANTOSE GALLEGOS, PETITIONERS V. UNITED STATES OF AMERICA No. 90-7198 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 Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A219-A245) is reported at 916 F.2d 219. JURISDICTION The judgment of the court of appeals was entered on October 22, 1990. A petition for rehearing was denied on November 21, 1990 (Pet. App. C). The petition for a writ of certiorari was filed on February 19, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a co-defendant's mid-trial threat to kill a government witness was so prejudicial as to deny petitioners their right to a fair trial. 2. Whether the prosecutor's rebuttal argument prejudiced petitioners' right to a fair trial. 3. Whether the district court erred in enhancing petitioners' base offense levels six levels under Section 2A4.1(b)(1) of the Sentencing Guidelines for committing the offense of kidnapping when a ransom demand was made, and four levels under Section 2A4.1(b)(5) for committing the offense of kidnapping when the victim was kidnapped in order to facilitate the commission of another offense (extortion). STATEMENT Following a jury trial in the United States District Court for the Northern District of Texas, petitioners were convicted of kidnapping, in violation of 18 U.S.C. 1201(a)(1) (Count 2); conspiracy to commit extortion, in violation of 18 U.S.C. 1951 (Count 3); extortion, in violation of 18 U.S.C. 1951 (Count 4); and carrying or using a firearm during the commission of a crime of violence, in violation of 18 U.S.C. 924(c) (Counts 7 and 9). In addition, petitioner Gallegos was convicted of conspiracy to kidnap, in violation of 18 U.S.C. 1201(c) (Count 1), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1). /1/ Petitioner Rocha was sentenced to 295 months' imprisonment, and petitioner Gallegos to 270 months' imprisonment. The court of appeals affirmed. Pet. App. A219-A245. 1. In November 1988, Thomas Padilla delivered 30 kilos of cocaine to Tony Rodriguez in Michigan, who agreed to pay Padilla for the cocaine from the proceeds of the cocaine sales. Rodriguez was unable to sell the cocaine at a price sufficient to cover the amount he owed to Padilla. In order to avoid Padilla, Rodriguez disappeared. In efforts to locate Rodriguez, Padilla made repeated telephone calls and visits to Bernice English, Rodriguez's sister. At one point Padilla threatened to hold her until Rodriguez paid the debt. Frightened for her safety, English moved herself and her three younger children to California in January 1989. Her oldest child, 17-year old Michael Baker, remained in Michigan with his grandfather in order to complete his senior year of high school. Pet. App. A224. On March 16, 1989, Baker drove to his old home in River Rouge, Michigan, in order to collect the mail. Padilla and Johnny Hinojosa arrived at the house, and Padilla demanded to know Rodriguez's whereabouts. When Baker stated that he did not know, Padilla and Hinojosa abducted him. After retrieving some clothing and a gun, Padilla and Hinojosa drove Baker to Texas. En route, Padilla telephoned English in California and advised her that he had captured her son, but would release him unharmed if Rodriguez contacted him. When advised of these events, Rodriguez went to his sister's home to await a call from Padilla. When Padilla telephoned, he advised Rodriguez to fly to Texas and bring the money for the cocaine, threatening to kill Baker if Rodriguez did not comply. Rodriguez contacted the federal authorities. He then flew to Dallas, where FBI agents checked him into a room at the Marriott Hotel and set up surveillance. Pet. App. A224-A225. Upon arriving in Dallas on the evening of March 17, Padilla dropped off Hinojosa and picked up petitioner Rocha. Padilla and Rocha took Baker to a motel in Arlington, Texas. Padilla left the motel for a few hours, leaving Rocha alone with Baker. When Padilla returned, he brought with him petitioner Gallegos and an unidentified male. Ibid. The following morning, Rodriguez attempted to contact Padilla by calling his beeper number, and, upon instructions from the FBI, entered the telephone number to the FBI "hello phone." /2/ Padilla telephoned this number several times to set up a meeting with Rodriguez. Padilla instructed Rodriguez to await a call from Hector Garcia regarding the exchange. During one of the calls, Rodriguez told Padilla that his hotel room number was 44, but during a later call revealed that the correct number was 448. Ibid. At some point during the afternoon, Padilla gave certain directions to Rocha, Gallegos, and the unidentified man; Baker thought that Padilla gave the three men Rodriguez's room number at the Marriott Hotel and directed them to go meet Rodriguez. Rocha, Gallegos, and the third man left the motel, while Padilla remained with Baker. Later that afternoon, Padilla collected Hinojosa at the latter's apartment. When Padilla instructed Hinojosa to get "the throwaway," Hinojosa got a gun from his apartment and hid it in his boot. After Hinojosa collected another gun from Padilla's apartment, which Padilla hid under his shirt, Padilla drove Hinojosa and Baker to meet Rocha, Gallegos, and the third man. Pet. App. A225-A226. Shortly after 4:00 p.m., five calls were made to the hello phone within a short period of time. The FBI learned that these calls originated from a telephone in the basement of the Marriott Hotel. An FBI agent sent to the Marriott basement to investigate observed Rocha and Gallegos at a telephone. The agent left and advised other agents that he believed one of the individuals might be Baker. Agents sent Rodriguez to the basement to ascertain whether one of the individuals was Baker. After determining that neither man was Baker, Rodriguez left. Rocha and Gallegos, apparently noticing both Rodriguez and the agents, quickly left the basement. They were arrested as they attempted to drive away. A loaded semiautomatic handgun, whose clip bore Gallegos' fingerprint, was found beneath Gallegos' seat. A loaded .38 caliber revolver was found underneath Rocha's seat, and four .38 caliber bullets were found in Rocha's pocket. Pet. App. A226. Also found on Rocha was a matchbook cover upon which was written the telephone number of Baker's mother, and a piece of paper upon which was written the number of the FBI hello phone, and the partial Marriott Hotel room number that Rodriguez initially had given to Padilla. Pet. App. A236. Later that afternoon, Garcia telephoned Rodriguez and instructed him to bring Padilla's money to a local mall. Rodriguez met Garcia at the mall, where Garcia told him that he would tell Padilla that he had seen the money and "guaranteed" that Baker would be released. Garcia instructed Rodriguez to return to the mall in one hour for Baker. Shortly after this meeting, someone alerted Padilla to the investigation. Padilla released Baker and left the area. He and the remaining defendants were arrested shortly thereafter. Ibid. 2. At trial, during redirect examination of Rodriguez, the prosecutor questioned Rodriguez about a death threat that Padilla had made during the trial. Rodriguez testified that during his direct examination Padilla had mouthed the words "You are dead," and moved a finger across his throat. Rodriguez further testified that he felt "(l)ike I probably will be." Petitioners and the other co-defendants objected and moved for a severance. The district court denied the motions, but cautioned the jury that the case against each of the defendants had to be considered separately and individually. Pet. App. A229, F101-F103. During her initial closing argument, the prosecutor stated that the evidence showed that although Padilla had made plans for Garcia to meet with Rodriguez to exchange Baker for the money owed by Rodriguez, that the defendants were not waiting for the exchange. Rather, Padilla "sent his people to the Marriott Hotel to collect that debt (for the cocaine) in person. And whether that debt would be the physical person of Tony Rodriguez or the money, it does not appear as if it mattered." Pet. App. A234, G39. In his closing argument, petitioner Gallegos' attorney stated: I don't think it is a reasonable conclusion that (Rocha and Gallegos) were (at the Marriott Hotel) to go and bump him off prior to going to the mall. If they had him going to the mall, why would they want to bump him off here for God sakes. It doesn't make sense. If they were going over there to hurt him, they wouldn't be caught in the room. Pet. App. A235, G81. In response, the prosecutor during rebuttal argument stated: I submit to you that (petitioner Gallegos) was at the Marriott to aid (petitioner Rocha) in causing an ambush on Tony Rodriguez. Their purpose for being there and their purpose for calling the hotel switchboard four or five times there within a few minutes is they are trying to determine what room number Mr. Rodriguez was in, and they are going to make a hit on Mr. Rodriguez. Either go up to the room and do it or catch him as he is on his way out to the mall, and when Hector Garcia saw Tony Rodriguez alive at the Forum 303 mall he was probably more surprised than anyone else because I submit to you that (petitioners) were supposed to kill him before he ever left the hotel and get his money. Pet. App. A234 & n.15, G147. The defendants objected to this statement and moved for a mistrial. The district court refused the mistrial request, but sustained the objection and instructed the jury to disregard the prosecutor's statement. Pet. App. A234, G147-G148. In sentencing petitioners, the district court enhanced their base offense levels six levels under Section 2A4.1(b)(1) of the Sentencing Guidelines for committing the offense of kidnapping when a ransom demand was made, and four levels under Section 2A4.1(b)(5) for committing the offense of kidnapping when the victim was kidnapped to facilitate the commission of another offense (extortion). Pet. App. A242. 3. The court of appeals affirmed petitioners' convictions. The court rejected petitioners' contention that they should have been granted a severance because the evidence of Padilla's death threat rendered their trial unfair. Pet. App. A229-A231. Although the court was unable to say that no prejudice occurred to petitioners as a result of the evidence of the death threat, the court found that two factors limited its prejudicial effect. /3/ First, the evidence "was not particularly inflammatory" towards petitioners: the threat was made solely by Padilla, and there was "no reason for the jury to infer that any other defendant was involved in making the threat." Pet. App. A231. Moreover, "the prosecutor made no attempt to attribute culpability for the threat to any defendant besides Padilla." Ibid. Second, immediately following introduction of the evidence, the district court carefully instructed the jury that the evidence was to be considered separately against each defendant. The court found evidence that the jury had not penalized the co-defendants for Padilla's threats in the jury's verdict "finding defendants guilty of some counts and some defendants not guilty on other counts." Ibid. The court of appeals also rejected petitioners' claim that the prosecutor's rebuttal statements required reversal of their convictions. Declining to rule on the propriety of the rebuttal remarks, /4/ the court found that, even assuming that the prosecutor's remarks were inappropriate, any prejudicial impact was minimal. Thus, the remarks in question were only a small portion of the entire closing arguments, and phrased "in such a manner that they amounted to a suggested inference from the evidence rather than an argument outside the record." Pet. App. A235. Moreover, the district court had immediately instructed the jury to disregard the prosecutor's statements, and, in its closing instructions, had "emphasized to the jury that statements of counsel were not evidence and the defendants were being tried only for the offenses charged." /5/ Ibid. These factors, combined with the strength of the evidence against the petitioners, established that the prosecutor's remarks "did not infringe upon (the petitioners') substantial rights." Id. at A236. Finally, the court of appeals found that the district court had properly enhanced petitioners' base offense levels under both Section 2A4.1(b)(1), for committing the offense of kidnapping when a random demand was made, and Section 2A4.1(b)(5), for committing the offense of kidnapping when the victim was kidnapped in order to facilitate the commission of another offense (extortion). The court found that Section 2A4.1 specified five categories of specific offense characteristics for which a defendant's base offense may be enhanced, each of which provided for a separate increase in the base offense level. The court found "(no) contrary intent by the Sentencing Commission that the section mandates the use of only one category to enhance a defendant's offense level." Pet. App. A243. ARGUMENT 1. Petitioners argue (Pet. 8-21) that the district court's failure to grant a severance or mistrial following the government's elicitation of testimony concerning Padilla's death threat requires reversal of their convictions. The court of appeals properly rejected this contention. To prevail in challenging the district court's ruling on a motion to sever, petitioners must show that the district court abused its discretion (see Opper v. United States, 348 U.S. 84, 95 (1954)), and that as a result they suffered substantial prejudice. See United States v. Lane, 474 U.S. 438, 449 (1986). See also United States v. Kabbaby, 672 F.2d 857, 861-862 (11th Cir. 1982). Similarly, a trial judge has broad discretion to determine whether developments at trial warrant the declaration of a mistrial, because he is in the best position to evaluate their effect on the jury. United States v. Laymon, 621 F.2d 1051, 1053 (10th Cir. 1980). For that reason, the trial court's determination whether a mistrial is warranted is entitled to special weight. Arizona v. Washington, 434 U.S. 497, 510, 514 (1978). The district court did not abuse its discretion here in refusing to grant a severance or a mistrial. As the court of appeals found, two factors limited any prejudicial effect of Padilla's death threat. First, the threat was "was not particularly inflammatory" towards petitioners: it was made solely by Padilla, and there was "no reason for the jury to infer that any other defendant was involved in making the threat." Pet. App. A231. Further, the prosecution "made no attempt to attribute culpability for the threat to any defendant besides Padilla." Ibid. Second, immediately following the introduction of the testimony concerning Padilla's death threat, the district court instructed the jury that the case against each of the defendants had to be considered separately and individually. It is, of course, presumed that the jury will obey the court's instruction. See Tennessee v. Street, 471 U.S. 409, 415 (1985); Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985). The jury evidently understood its responsibility to consider the evidence against each defendant separately, since it acquitted certain defendants, including petitioner Rocha, on some counts. "'Convictions will invariably be sustained if it may be inferred from the verdict that the jury "meticulously sifted the evidence," as where it acquits on certain counts.'" United States v. Kabbaby, 672 F.2d at 861. See also United States v. Jones, 839 F.2d 1041, 1056 (5th Cir.), cert. denied, 486 U.S. 1024 (1988) ("(W)here it is likely that a properly instructed jury would contain the effect of (evidence of a death threat) and apply it only against the culpable party, denial of severance is not an abuse of discretion"). Petitioners contend (Pet. 11-17) that the decision of the court of appeals conflicts with cases from the First, Tenth, and Eleventh Circuits, which they claim establish a requirement that the court poll the jury in order to determine the potential prejudicial effect of in-court threats. See United States v. Badia, 827 F.2d 1458, 1466-1468 (11th Cir. 1987), cert. denied, 485 U.S. 937 (1988); United States v. Rouco, 765 F.2d 983, 992 (11th Cir. 1985), cert. denied, 475 U.S. 1124 (1986); United States v. Sanchez, 722 F.2d 1501, 1508-1509 (11th Cir.), cert. denied, 467 U.S. 1208 (1984); United States v. Barnes, 681 F.2d 717, 725 (11th Cir.), modified on other grounds, 694 F.2d 233 (1982), cert. denied, 460 U.S. 1046 (1983); United States v. Tashjian, 660 F.2d 829, 837-838 (1st Cir.), cert. denied, 454 U.S. 1102 (1981); United States v. Evans, 542 F.2d 805, 814-815 (10th Cir. 1976), cert. denied, 429 U.S. 1101 (1977). As an initial matter, petitioners at no time requested the court to poll the jury. They therefore cannot complain of the court's failure to do so. In any event, there is no conflict among the circuits on this issue. In each of the cases cited, the district court responded to actual in-court threats or testimony concerning in-court or out-of-court threats by delivering cautionary instructions and polling the jury to determine whether the jurors could put the incident from their minds in reaching a verdict. The courts of appeals found that in the circumstances of each case, any potential prejudice was mitigated as quickly and effectively as possible. In none of the cases, however, did the courts impose a requirement that the district court poll the jury in response to such incidents. Indeed, in two of the cases relied upon, the Eleventh Circuit expressly noted that "(d)eterminations of the impact of allegedly prejudicial testimony upon a jury, as well as what curative measures, if any, can be taken to negate the harmful effects, are matters within the sound discretion of the trial judge." United States v. Badia, 827 F.2d at 1467, and United States v. Rouco, 765 F.2d at 992. Nor did the court of appeals fail to give due weight to the rights of the "passive co-defendants" in assessing the impact of Padilla's death threat, as petitioners claim (Pet. 17-19). Thus, the court expressly recognized that (a) death threat of any kind is likely to be inflammatory and triggers concerns about the dangers of prejudice, especially when the death threat occurs during the course of the trial. A district court must be mindful of the negative impact such evidence may have upon the jury and carefully consider the possible unfair prejudice against the other defendants. Pet. App. A229-A230. Moreover, the court of appeals noted that there might be situations where the same instructions that were given in this case would not suffice to overcome the prejudice arising from testimony that would tend to shock and inflame a jury. The court nonetheless concluded (Pet. App. A231): (W)e are satisfied that the cautionary instruction here was sufficient to provide adequate protection against compelling prejudice. There is no reason to assume that the district court's instructions were not efficacious. * * * The jury's verdict finding defendants guilty of some counts and some defendants not guilty on other counts shows that the jury did not penalize (petitioners) for Padilla's threat. Petitioners also argue (Pet. 19-21) that the government was guilty of misconduct in deliberately eliciting testimony concerning Padilla's in-court threat. However, the court of appeals found that testimony concerning the threat was properly admitted against Padilla pursuant to Fed. R. Evid. 404(b) because it was probative of his guilt in the offenses charged and of the validity of his defense of duress. Pet. App. A241. See also United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986), cert. denied, 480 U.S. 922 (1987) (evidence of a threat towards an adverse witness is admissible to show consciousness of guilt) (citing cases); United States v. Rosa, 705 F.2d 1375, 1377-1378 (1st Cir. 1983). The court's holding in this regard disposes of petitioners' complaint that the government was guilty of misconduct in eliciting testimony concerning the threat. 2. Petitioners also argue (Pet. 22-34) that the prosecutor's rebuttal argument that petitioners' purpose for being in the basement of the Marriott Hotel was "to make a hit on Mr. Rodriguez," was without any evidentiary basis and was so prejudicial as to deny them a fair trial. The court below held, after considering the totality of the circumstances, that the prosecutor's remarks, even if error, "did not infringe upon the substantial rights of (petitioners)" (Pet. App. A235-A236). The court relied on well settled principles in reaching this conclusion, and further review by this Court is therefore unwarranted. As an initial matter, the prosecutor's rebuttal remarks "must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error." United States v. Young, 470 U.S. 1, 12 (1985). See also Darden v. Wainwright, 477 U.S. 168, 179 (1986). The prosecutor's comments were in direct response to petitioner Gallegos' closing argument that it was unreasonable to conclude that petitioners went to the Marriott Hotel to "bump (Rodriguez) off." Thus, as the court of appeals noted, "it is difficult to find merit in (petitioners) contention that the prosecutor's remarks in rebuttal closing argument were inappropriate under the circumstances; they were responsive to Gallegos' closing argument * * *." Pet. App. A235. /6/ Nor was the prosecutor's comment totally without evidentiary support. The record established that upon his arrival in Texas, Padilla contacted Rodriguez at the Marriott Hotel and instructed him to await a telephone call from Garcia concerning the exchange of Baker for the money. Notwithstanding these arrangements, Padilla sent petitioners to the Marriott hotel, giving them Rodriguez's room number. After collecting two firearms from their homes, including an untraceable "throwaway" firearm, Padilla and Hinojosa joined petitioners in their car. Soon thereafter, petitioners placed several calls to Rodriguez's hotel room from a telephone in the hotel's basement. Upon their arrest, the police found a loaded pistol, whose clip bore Gallegos' fingerprint, underneath Gallegos' car seat, a loaded .38 caliber revolver underneath Rocha's car seat, and four .38 caliber bullets in Rocha's pocket. A fair inference to be drawn from this evidence was that Padilla had eschewed a peaceful exchange with Rodriguez in favor of violence. But even if the prosecutor's rebuttal argument was improper, the court of appeals properly found that "any prejudicial impact on (petitioners) was minimal." Pet. App. A235. As the court found, the remarks in question were but a small portion of the entire closing arguments, and "the prosecutor phrased her remarks in such a manner that they amounted to a suggested inference from the evidence rather than an argument outside the record." Ibid. Further, the district court gave an immediate instruction that the jury should disregard the comments, and, during its final instructions, emphasized that "statements of counsel were not evidence and the defendants were being tried only for the offenses charged." Ibid. /7/ Such admonitions are adequate to protect against prejudice. See, e.g., United States v. Nabors, 761 F.2d 465, 470 (8th Cir.), cert. denied, 474 U.S. 851 (1985); United States v. Shackelford, 709 F.2d 911, 913 (5th Cir.), cert. denied, 464 U.S. 899 (1983). Finally, the jury's decision to acquit petitioner Rocha and some other defendants on some counts shows that the jury was not inflamed against petitioners by the prosecutor. "(Such action) indicates * * * that the jury carefully weighed the evidence against each defendant, acquitting when the evidence was insufficient. This reflects a logical approach to the deliberations, inconsistent with passion or prejudice." United States v. Solis, 747 F.2d 930, 942-943 (5th Cir. 1984), cert. denied, 473 U.S. 906 (1985). Petitioners nonetheless complain (Pet. 22-33) that the court of appeals has lowered the existing standards for determining whether improper prosecutorial comments constitute reversible error. According to petitioners, the court "created a precedent that defendants in the Fifth Circuit are not entitled to review of their rights to a fair trial where the evidence is found to be sufficient to support the conviction." Pet. 29. The court, however, looked beyond the sufficiency of the evidence in assessing whether the prosecutor's comments had deprived petitioners of a fair trial. In the case of prosecution remarks that receive a contemporaneous objection, "(t)he relevant question is whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). In assessing whether the prosecutor's statements affected petitioners' substantial rights, the court of appeals looked to "(1) the magnitude of the prejudicial effect of the statements, (2) the efficacy of any cautionary instruction; and (3) the strength of the evidence of the defendant's guilt." Pet. App. A235. The court upheld petitioners' convictions only after weighing all these factors and determining that the prosecutor's comments had not deprived petitioners of a fair trial. /8/ Nor, contrary to petitioners' claim, did the court of appeals conclude that the evidence against petitioners was merely "sufficient." To be sure, the court at one point stated that "there was sufficient evidence to convict (petitioners)." Pet. App. A235. However, after reciting 14 separate factors that connected petitioners to the kidnap conspiracy, the court concluded (Pet. App. A236) (emphasis added): Considering the limiting instructions given and the strength of the evidence against (petitioners), we find that the prosecutor's remarks did not infringe upon the substantial rights of (petitioners). 3. Finally, petitioners argue (Pet. 34-43) that the district court improperly enhanced their sentences under Section 2A4.1(b) of the Sentencing Guidelines for committing the offense of kidnapping when a ransom demand was made, and also Section 2A4.1(b)(5) for committing the offense of kidnapping when the victim was kidnapped to facilitate the commission of another offense (extortion). According to petitioners, enhancing the offense level once for the ransom demand and again for extortion amounted to an impermissible double penalty for the same conduct. The court of appeals correctly rejected this claim. Section 2A4.1(b) of the Sentencing Guidelines specifies five categories of specific offense characteristics for the offense of kidnapping for which a defendant's base offense may be enhanced. Each category provides for a separate increase in the defendant's base offense level. Thus, Section 2A4.1(b)(1) provides for an increase of six levels if a ransom demand was made; Section 2A4.1(b)(2) provides for increases if the kidnap victim was injured, with the amount of the increase depending on the severity of the injury; Section 2A4.1(b)(3) provides for an increase of two levels if a dangerous weapon was used; Section 2A4.1(b)(4) provides for increases of various levels depending on the length of time that the kidnap victim was detained; and Section 2A4.1(b)(5) provides for an increase of four levels if the victim was kidnapped to facilitate the commission of another offense. Petitioners nonetheless point to the commentary to Section 2A4.1, which states that "(a)n enhancement is provided when the offense is committed for ransom or to facilitate the commission of another offense." According to petitioners, the commentary's use of the word "or" indicates that their sentences could be enhanced either for the ransom demand or for the facilitation of the offense of extortion, but not both. However, the court must follow the clear, unambiguous language of the Guidelines absent any discernible manifestation of contrary intent. United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989); United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir. 1989). As the court of appeals found, Section 2A4.1 unambiguously specifies five categories of specific offense characteristics for which a base offense level may be enhanced. "The section does not specify that the categories are mutually exclusive," and nothing in the Guidelines indicates "any contrary intent by the Sentencing Commission that the Section mandates the use of only one category to enhance a defendant's offense level. Pet. App. A243. Indeed, the commentary to Section 1B1.1 provides (Application Note 4): The offense level adjustments from more than one specific offense characteristic within an offense guideline are cumulative (added together) unless the guideline specifies that only the greater (or greatest) is to be used. Within each specific offense characteristic subsection, however, the offense level adjustments are alternative; only the one that best describes the conduct is to be used. Moreover, the Sentencing Guidelines are explicit when double counting is forbidden. Numerous sections clearly provide that an offense level increase based on specific conduct is not permitted if the offense Guideline already takes that same conduct into account. See Section 2C1.2 (Application Note 2); Section 2J1.2 (Application Note 2); Section 2T1.4 (Application Note 3); Section 2X3.1 (Application Note 2); Section 3A1.1 (Application Note 2); Section 3A1.2 (Application Note 3); Section 3A1.3 (Application Note 2); and Section 3C1.1 (Application Note 4). Here, by contrast, the commentary language to Section 2A4.1 relied on by petitioners does not clearly preclude the enhancement of a defendant's base offense level for a ransom demand when the defendant's base offense level is enhanced for the facilitation of another offense. Petitioners' real complaint is that their sentences should not be enhanced under both Sections 2A4.1(b)(1) and 2A4.1(b)(2) because both specific offense characteristics involved the same conduct -- that is, the ransom demand also constituted the offense of extortion that was being facilitated by the kidnapping. However, in a related context, the courts have rejected the argument that a defendant's criminal history level cannot be enhanced based on factors that also constitute elements of the crime of conviction. Thus, in United States v. Goldbaum, supra, the defendant was convicted of unlawful escape from custody, in violation of 18 U.S.C. 751(a). In sentencing the defendant, the district court enhanced his criminal history level by three points pursuant to Guideline Section 4A1.1(d), which provides that two points are to be added to the defendant's criminal history category if the "defendant committed the instant offense while under any criminal justice sentence, including * * * imprisonment * * *." The court of appeals rejected the defendant's argument that because "confinement" and "imprisonment" were substantive elements of the crime of escape under 18 U.S.C. 751(a), those factors could not be considered as enhancement factors for purpose of Guideline Section 4A1.1(d). The court found that because Section 4A1.1(d) clearly called for the addition of three points to the defendant's criminal history category, and because there was no express intent in the Guidelines to the contrary, the clear language of the Guidelines should be followed. See also United States v. Ofchinick, 877 F.2d 251, 255-257 (3d Cir. 1989) (same); United States v. Vickers, 891 F.2d at 87-88 (same). In any event, even if petitioners were correct in their assertion that an enhancement for both the ransom demand and the offense of extortion constituted impermissible double counting because, under the facts of this case, the ransom demand and the extortion were the same offense, they still could not be heard to complain. The record conclusively establishes that Rodriguez's nephew Baker was kidnapped in order to facilitate the commission of Padilla's drug deal with Rodriguez. That is, Baker was kidnapped in order to force Rodriguez to pay Padilla for the cocaine fronted him. Clearly, there is no overlap between the ransom demand and the underlying drug deal. Accordingly, petitioners' sentence was properly enhanced under Section 2A4.1(b)(1) for the ransom demand, and four levels under Section 2A4.1(b)(5) for committing the offense of kidnapping when the victim was kidnapped to facilitate the commission of a drug offense. 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 DEBORAH WATSON Attorney APRIL 1991 /1/ Co-defendants Thomas Padilla, Hector Garcia-Garcia, and Johnny Robert Hinojosa were also convicted on various charges arising from the kidnapping of Michael Baker. /2/ The FBI "hello phone" is an unlisted private telephone line to a telephone located in FBI offices. Agents made arrangements so that any incoming call to the hello phone would be automatically forwarded to the Marriott Hotel, where Rodriguez was staying, and a trace started. /3/ The court found that evidence concerning the death threat was admissible against Padilla because "it was probative of (his) guilt in the offenses charged and of the validity of his defense of duress." Pet. App. A241. /4/ The court of appeals found that the government's rebuttal argument was "a direct response" to petitioner Gallegos' closing argument in which Gallegos' attorney stated that it was unreasonable to conclude that Gallegos and Rocha had gone to the Marriott Hotel to "bump (Rodriguez) off." Pet. App. A235. Responding to petitioners' argument that the remarks of Gallegos' attorney were themselves a response to the prosecutor's initial opening statements, the court stated that it was unconvinced that the government's initial closing argument "amounted to an accusation of conspiracy to murder." The court stated (ibid.): (I)t is difficult to find merit in the defendants' contention that the prosecutor's remarks in rebuttal closing argument were inappropriate under the circumstances; they were responsive to Gallegos' closing argument, and there were no objections to the prosecutor's comment in the initial closing argument which Gallegos contends opened up the issue of intent to murder. /5/ The district court instructed the jury (Pet. App. A235 n.17): Remember that any statements, objections, or arguments made by the lawyers are not evidence. The function of the lawyers is to point out those things that are most significant or most helpful to their side of the case, and in so doing to call your attention to certain facts or inferences that might otherwise escape your notice. In the final analysis, however, it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you * * *. I caution you that you are here to decide whether the government has proved beyond a reasonable doubt that each defendant is guilty of the crimes with which he is charged. The defendants are not on trial for any act, conduct, or offense not alleged in the indictment. /6/ Petitioners argue (Pet. 23 n.9) that the prosecutor's rebuttal argument was not invited by defense counsel because the prosecutor opened up the issue of intent to murder in her initial closing argument. During her initial closing argument, the prosecutor stated that Padilla "sent his people to the Marriott Hotel to collect that debt (for the cocaine) in person. And whether that debt would be the physical person of Tony Rodriguez or the money, it does not appear as if it mattered." Pet. App. A235. As the court of appeals observed, it is far from clear that the prosecutor's comment "amounted to an accusation of conspiracy to murder." Moreover, as the court of appeals further noted, petitioners did not object to the statement, and Gallegos' attorney clearly used an "intent to murder argument" in his closing argument. Ibid. /7/ Petitioners complain (Pet. 28 n.11) that in concluding that the district court's instructions cured any prejudice, the court of appeals incorrectly assumed that the general instructions that the statements of counsel are not evidence followed the closing arguments, whereas in fact these instructions were given before closing arguments. To be sure, the court of appeals did assume (Pet. App. A235) that the district court's final jury instructions followed the closing arguments. However, it was not the timing of the instructions so much as the fact that such instructions were given that prompted the court of appeals' conclusion that petitioners were not prejudiced by the prosecutor's comments. /8/ Petitioners claim (Pet. 29-34) that the decision of the court of appeals conflicts with its earlier decision in United States v. McPhee, 731 F.2d 1150 (5th Cir. 1984). There, during the defendant's trial on a false statement charge, the prosecutor in his closing argument "blatantly implied the existence of serious extrinsic offenses." Id. at 1153. Further, the prosecutor expressly asked the jury to find the defendant guilty not merely for making a false statement, but rather, to find him guilty "because of a bunch of other reasons." Ibid. The court gave no cautionary instruction at the time of the improper argument. Finally, the evidence against the defendant was not strong. Indeed, after deliberating for two days, the jury reported to the court, one hour prior to reaching its verdict, that it was unable to reach a decision. Here, by contrast, the prosecutor did not ask the jury to find petitioners guilty not merely for the offenses charged, but because of a "bunch of other reasons." Also, unlike the situation in McPhee, the court immediately instructed the jury to disregard the comment in question. Finally, the evidence against petitioners, although largely circumstantial, was quite strong. In any event, even if there were any tension between the decision below and McPhee, it would be an intracircuit conflict for the court of appeals to resolve. See Wisniewski v. United States, 353 U.S. 901, 902 (1957).