CLIVOUS SHERMAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6615 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The order of the court of appeals (Pet. App.) is not reported, but the judgment is noted at 919 F.2d 744 (Table). JURISDICTION The judgment of the court of appeals was entered on October 30, 1990. The petition for a writ of certiorari was filed on December 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court abused its discretion in allowing the government to reopen its case-in-chief so that witnesses could formally identify petitioner. 2. Whether the evidence was sufficient to show that petitioner was the person about whom witnesses testified. 3. Whether petitioner's sentence, which fell within the statutory range and is consistent with federal Sentencing Guidelines, was invalid because a co-defendant who cooperated with the government received a lesser sentence. STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of importing more than five kilograms of cocaine into the United States (21 U.S.C. 952(a), 960(a)(1) and (b)(1)(B)) and possessing more than five kilograms of cocaine with intent to distribute it (21 U.S.C. 841(a)(1) and (b)(1)(A)(ii)). Petitioner was sentenced to a 188-month prison term, to be followed by a five-year term of supervised release. The court of appeals affirmed by judgment order. Pet. App. 1. The evidence at trial showed that petitioner was the captain of the MRS. TATIANA, a Haitian freighter that arrived in Miami on July 16, 1989, after a voyage from Haiti. Richard Campbell, the ship's chief engineer, testified at trial that petitioner told him the ship contained 70 kilograms of cocaine in the cargo hold. Petitioner and Campbell retrieved the cocaine and stored it on deck until others arrived to pick it up. Gov't C.A. Br. 2-3. Meanwhile, federal customs agents, acting on a tip, began surveillance of the MRS. TATIANA. At about 9:15 p.m., Joseph St. Fort (the ship's owner) and Evans Rousseau drove up to the ship and approached the gangway. Petitioner instructed Campbell to pass the cocaine down the gangway to Rousseau, who loaded it into the car. As Rousseau started to drive away with the cocaine, federal agents arrested Rousseau and Campbell. Petitioner was arrested a short time later, while he was attempting to hide behind a trailer near the ship. St. Fort escaped through a fence. Gov't C.A. Br. 3-4. 2. Petitioner and Rousseau were tried as co-defendants. The government's case against petitioner included the testimony of the arresting agents and Campbell, who had pleaded guilty to conspiracy to possess cocaine with intent to distribute it. After the government indicated outside the jury's presence that it was resting its case, petitioner moved for acquittal because no one had formally identified him as the Clivous Sherman whom the testimony indicated was captain of the ship and a participant in the drug offenses. The district court, agreeing that petitioner had never formally been identified in court, /1/ allowed the government to reopen its case for the purpose of presenting identification testimony. The government recalled two arresting agents who formally identified petitioner as the Clivous Sherman they arrested and the person who admitted he was the captain of the MRS. TATIANA. Gov't C.A. Br. 2, 13-16. The jury subsequently convicted petitioner of the substantive drug charges against him. /2/ ARGUMENT 1. Petitioner claims (Pet. 11-13) that it was error to allow the government to reopen its case -- after the government had rested outside the jury's presence but before petitioner had begun his defense -- so that two witnesses could formally identify petitioner as the Clivous Sherman about whom they had earlier testified. Petitioner recognizes (Pet. 12) that "permitting the government to reopen its case is within the sound discretion of the trial court," but contends that in this case the court abused its discretion. The district court allowed the government to reopen its case because petitioner "has not even begun to put his case on, if he chooses to put any on, and I am hard pressed to see how in any real sense and in a legal sense he is prejudiced, other than by the fact that he would have a tactical advantage because of the prosecutor's mistake." Gov't C.A. Br. 15 (quoting R4:17-18). Petitioner claims (Pet. 13) that he was prejudiced because absent "the government's reopening of its case and the presentation of new evidence identifying (petitioner), the government's case failed and the district court would have acquitted (him)." However, courts of appeals frequently have upheld district courts' decisions allowing the government to reopen its case so that it could introduce necessary evidence that was inadvertently omitted from its case-in-chief. See, e.g., United States v. Washington, 861 F.2d 350, 353 (2d Cir. 1988) (district court did not abuse its discretion in allowing government to reopen its case immediately after it had rested so that witness could formally identify defendant). /3/ The relevant question is not whether petitioner would have been acquitted had the district court not allowed the government to reopen its case; /4/ the question is whether petitioner has demonstrated that the reopening of the government's case prejudiced his ability to present his defense. See United States v. Molinares, 700 F.2d 647, 652 & n.8 (11th Cir. 1983). As the district court recognized, there was no prejudice to, nor even any effect upon, petitioner's ability to conduct his defense, because petitioner had not yet begun to present his defense when the district court allowed the government to reopen its case. 2. Similarly without merit is petitioner's claim (Pet. 14-15) that the evidence of his identity was insufficient even after the government was allowed to reopen its case. Petitioner concedes (Pet. 15) that proof of identity may be established circumstantially. Campbell, the chief engineer of the MRS. TATIANA, testified that Clivous Sherman, the captain of the MRS. TATIANA, had participated in the drug offenses. Moreover, Campbell confirmed that by "the captain," he meant "the defendant Sherman." Gov't C.A. Br. 14. When the government reopened its case, Agent Shewmake identified petitioner as the person he arrested hiding near the MRS. TATIANA, and Agent Abramson identified petitioner as the person who admitted to being the captain of the MRS. TATIANA the night he was arrested. Gov't C.A. Br. 16 (citing R4:24, R4:21-22, R3:195). 3. Finally, petitioner complains (Pet. 16-17) that his 188-month prison sentence was more than the five-year prison sentence imposed on Campbell, his co-defendant who pleaded guilty and agreed to testify for the government against petitioner. Petitioner does not dispute that his sentence was within the range established by the Sentencing Guidelines, and he recognizes the general rule that "a district court's decision not to grant a downward departure from the guidelines is not subject to review." Pet. 16 (citing United States v. Davis, 878 F.2d 1299 (11th Cir.), cert. denied, 110 S. Ct. 341 (1989)). Petitioner claims, however, that his and Campbell's sentences were "so disproportionate so as to render (petitioner's) sentence excessive in violation of the Eighth Amendment's prohibition against cruel and unusual punishment and of the Fifth Amendment's due process dictates." Pet. 16. As the district court explained at sentencing, petitioner and Campbell received different sentences because they were in "very different position(s)." Unlike petitioner, "Campbell cooperated fully with the government, testified at the time of trial itself"; indeed, the government moved under Sentencing Guidelines Section 5K1.1 to have Campbell's sentence reduced below what the Guidelines called for to reflect his substantial assistance. Gov't C.A. Br. 19 (quoting R7:33). As the Sentencing Guidelines Manual explains, a "defendant's assistance to authorities in the investigation of criminal activities has been recognized in practice and by statute as a mitigating sentencing factor." Sentencing Guidelines Section 5K1.1, background commentary at 5.41 (1990); see 18 U.S.C. 3553(e). Contrary to petitioner's claim, a "criminal defendant has no constitutional right to be given a sentence equal in duration to that of his or her codefendants." United States v. Smith, 839 F.2d 175, 179 (3d Cir. 1988) (citing Dorszynski v. United States, 418 U.S. 424, 440-441 (1974)); see also Corbitt v. New Jersey, 439 U.S. 212, 224 (1978) (recognizing "the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based"). 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 SEAN CONNELLY Attorney MARCH 1991 /1/ At one point during the testimony of Campbell in the government's case-in-chief, the following colloquy occurred (Gov't C.A. Br. 14 (quoting R3:47)): A: The captain told me to pass the bags, sir. Q: When you say "the captain," you mean the defendant Sherman, is that correct? A: Yes, sir. /2/ Petitioner was acquitted of conspiracy to commit the same offenses. Co-defendant Rousseau was convicted of possession of cocaine with intent to distribute it, but was acquitted on the conspiracy and importation counts. Gov't C.A. Br. 2. The court of appeals affirmed Rousseau's conviction along with petitioner's. Pet. App. /3/ See also United States v. Molinares, 700 F.2d 647, 652 & n.8 (11th Cir. 1983) (government allowed to reopen perjury prosecution to present evidence that defendant had been duly sworn at the time of his prior testimony; "even assuming arguendo a failure of proof by the government, we find any omission inadvertent and subject to cure by reopening"); United States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980) (reopening upheld where "the prosecution's failure to adequately prove venue was clearly inadvertent, and defendant suffered no prejudice or surprise"). /4/ Even if this were the test, petitioner's claim would fail because "(c)ourtroom identification is not necessary when the evidence is sufficient to permit the inference that the defendant on trial is the person who committed the acts charged." United States v. Capozzi, 883 F.2d 608, 617 (8th Cir. 1989) (internal quotations omitted), cert. denied, 110 S. Ct. 1947 (1990). Here, the testimony of witnesses in the government's case-in-chief, that the defendant Clivous Sherman was the captain of the MRS. TATIANA who participated in the drug offenses, see note 1, supra, clearly provided a sufficient basis for the jury to conclude that the Clivous Sherman about whom the witnesses testified was the same Clivous Sherman who was on trial. See United States v. Doherty, 867 F.2d 47, 67 (1st Cir.), cert. denied, 109 S. Ct. 3243 (1989) (upholding conviction even though there was no formal in-court identification of defendant; noting that defendant had same name as person about whom witnesses testified and no witness denied his identity); United States v. Rovals, 777 F.2d 1089, 1091 (5th Cir. 1985) (identity may be proved circumstantially); United States v. Weed, 689 F.2d 752, 755-756 (7th Cir. 1982) (evidence of identity held sufficient where witnesses never suggested that defendant was not the same John Weed they were testifying about and defendant never objected to prosecutor's identification of him).