DAVID ROMO, JR., ET AL., PETITIONERS V. UNITED STATES OF AMERICA No. 90-6429 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 Seventh Circuit Brief For The United States In Opposition OPINION BELOW The court of appeals opinion (Pet. App. A1-A17) is reported at 914 F.2d 889. JURISDICTION The judgment of the court of appeals was entered on September 27, 1990. The petition for a writ of certiorari was filed on December 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the jury was correctly instructed on the use of co-conspirator testimony as evidence of the existence and membership of a conspiracy. 2. Whether petitioners were prejudiced by special verdict instructions regarding the quantity of cocaine involved in petitioners' conspiracy offense. STATEMENT Petitioners David Romo, Jr., Ann Romo, and Juanita Romo were convicted of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846; Ann also was convicted on three counts of distribution of cocaine, in violation of 21 U.S.C. 841(a)(1); and Juanita also was convicted on two counts of distribution of cocaine, in violation of 21 U.S.C. 841(a)(1). David, Jr., and Ann were sentenced to 120 months' imprisonment to be followed by five years' supervised release, and Juanita was sentenced to 121 months' imprisonment to be followed by five years' supervised release. The court of appeals affirmed. Pet. App. A1-A2; Gov't C.A. Br. 3. 1. The relevant facts are stated in the court of appeals opinion. In early 1988, Milwaukee police officers executed a search warrant at a tavern owned at the time by David Romo, Sr., and at the apartment above the tavern, in which David, Jr., lived. Police found 0.7 grams of cocaine in the apartment and 7.1 grams of cocaine in the tavern. In July 1988, an undercover police officer purchased three ounces of cocaine from Ricardo Reyes; Reyes was with Juanita and two other individuals. Juanita then left to pick up the cocaine, and was followed by another officer to Ann's residence. Juanita returned to Reyes' apartment and sold the officer three ounces of cocaine. Pet. App. A2. Reyes was arrested in the fall of 1988 and agreed to cooperate with police. He arranged for an undercover officer to purchase one ounce of cocaine from Juanita, and to make one three-ounce and two two-ounce purchases from Ann. Testimony at trial established that he had purchased cocaine from Juanita approximately 30 times during 1988. During several of these transactions, Reyes and Juanita would travel to David, Sr.'s residence to pick up the cocaine. Reyes also testified that on one occasion Juanita gave him 1/16 of an ounce of cocaine to deliver, and that David, Jr. went with him, although they were unable to locate the buyer. Pet. App. A2-A3. Trial testimony also revealed that, during the summer of 1988, two people parked in front of the tavern and waited half an hour for David, Jr., who came out and gave one of them a baggie with about one ounce of "white powder," stating that his father had told him to give it to them. A woman who stored cocaine for David, Sr., testified that on two occasions she delivered one ounce of cocaine to David, Jr., and on three occasions delivered cocaine to Juanita. She also testified that David, Sr. told her that, whenever he was out of town, she was to "take orders from David, Jr." for the cocaine business. Pet. App. A2-A3. Reynaldo Rosalez, who also was storing and distributing cocaine for David, Sr., testified that he delivered cocaine to Juanita approximately six times, and to David, Jr., one time. After the arrest and cooperation of Angelo Rosalez, who also was involved in these drug transactions, the police conducted a search of Ann's apartment and found a loaded handgun and a triple-beam scale. Officers subsequently searched Juanita's apartment and found numerous drug notes and needles. Pet. App. A3. 2. Petitioners and four other individuals were charged with conspiracy to distribute in excess of five kilograms of cocaine; Juanita and Ann were also charged with distributing cocaine. a. A portion of the evidence bearing on the existence and membership of a conspiracy consisted of out-of-court statements by co-conspirators. Prior to the admission into evidence of these statements as non-hearsay statements "by a coconspirator of a party during the course and in furtherance of the conspiracy" under Fed. R. Evid. 801(d)(2)(E), the district court made preliminary determinations, by a preponderance of the evidence, that a conspiracy existed, that the defendant and declarant were members of the conspiracy, and that the statement was made during the course and in furtherance of the conspiracy. See, e.g., Pet. App. A10-A12. See generally Bourjaily v. United States, 483 U.S. 171 (1987). Relevant portions of the subsequent jury instructions bearing on the existence and membership of the cocaine distribution conspiracy are quoted in the margin. /1/ In summary, the jury was instructed that it must conclude beyond a reasonable doubt that each defendant, by his own actions, willfully participated in the alleged conspiracy and that, in determining the existence and membership of a conspiracy, the jury could consider all the evidence. The instructions excluded the following paragraph from the Seventh Circuit Model Federal Jury Instruction: In determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant. The district court concluded that this instruction was inconsistent with Bourjaily v. United States, supra, which had held that the trial court could consider the co-conspirator statements themselves in deciding whether the requirements of Rules 801(d)(2)(E) and 104(a) (which concerns a trial court's admissibility determinations) had been satisfied. b. The jury also was asked to complete a special verdict form concerning the quantity of cocaine that was the "object" of the conspiracy. Petitioners objected to the phrasing of the special verdict form, arguing that it should have asked how much cocaine the conspirators "possessed," rather than the amount that was the "object" of the conspiracy, and that it should have given three choices of quantities rather than two choices of quantities (five kilograms or more; five kilograms or less). The jury indicated that the amount was five kilograms or more. Pet. App. A7-A8; Gov't C.A. Br. 33-35. 3. The court of appeals affirmed petitioners' convictions and rejected their numerous claims of error, including the two claims made here. With respect to the conspiracy instructions, the court relied on its recent en banc decision in United States v. de Ortiz, 907 F.2d 629 (7th Cir. 1990), cert. denied, No. 90-5725 (Jan. 7, 1991), which approved the exclusion of the Seventh Circuit pattern instruction at issue here in light of Bourjaily. Pet. App. A3-A4. With respect to the special jury verdict, the court rejected the argument that "the form and language of the special verdict require(d) reversal." Pet. App. A7. The court first observed that the sentencing court, rather than the trial jury, determines the amount of drugs involved for enhanced penalties under 21 U.S.C. 841(b), and that a special verdict is entirely advisory. "(S)ince the jury's answers are not binding on the judge, defendants are not entitled to particular phrasing in the special verdict form, and * * * are not prejudiced by the court's consideration of the answers given by the jury." Pet. App. A8. The court also rejected the claims on the merits. The court explained that the phrasing regarding the "object" of the conspiracy "was not ambiguous in light of the crime charged in the indictment, which was conspiracy 'to possess with intent to distribute in excess of five kilograms of cocaine.'" Pet. App. A8. The court also explained that petitioners' "argument that the jury probably would have returned a different finding on the amount of drugs involved had it been given three rather than two levels of gradations from which to choose is pure and unsupported speculation." Ibid. ARGUMENT 1. Petitioners assert (Pet. 3-12) that it was error for the jury not to be instructed that it must consider only a defendant's own acts and statements in determining whether he was a member of a conspiracy. To the contrary, the instructions given in this case were entirely consistent with this Court's decision in Bourjaily v. United States, 483 U.S. 171 (1987), respecting the use of out-of-court co-conspirator statements. As noted, in Bourjaily, this Court held that, before out-of-court co-conspirator statements may be introduced, the trial court must determine, by a preponderance of the evidence, that a conspiracy existed involving the declarant and the defendant and that the statements at issue were made "'during the course and in furtherance of the conspiracy.'" 483 U.S. at 175. Bourjaily further held that the court could consider the proffered statements themselves in making that determination because "there is little doubt that a co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy." Id. at 180. The Court emphasized that the so-called "bootstrapping rule," in which the statements could not be so used, had been superseded by enactment of the Federal Rules of Evidence in 1975 (id. at 177-178) and that consideration of the statements in making the admissibility determination does not violate the Confrontation Clause (id. at 181-184). In United States v. de Ortiz, supra, the Seventh Circuit carefully considered the continued applicability after Bourjaily of the previously used pattern instruction forbidding the jury from considering out-of-court co-conspirator statements to determine whether a defendant was a member of the conspiracy. Concluding that the instruction deleted by the district court should no longer be given, the court explained that the prior instruction was itself founded on the "antibootstrapping" principle that had not survived enactment of the Federal Rules of Evidence. 907 F.2d at 634. The holding in de Ortiz, and in this case, unquestionably is consistent with Bourjaily. Petitioners raise a variety of scattered objections to de Ortiz, but none is meritorious. Petitioners correctly point out (Pet. 5) that Bourjaily did not resolve the question whether out-of-court co-conspirator statements could be admitted into evidence solely on the basis of such statements. Petitioners also correctly assert (Pet. 6) that Bourjaily did not resolve whether a defendant could be convicted solely on the basis of out-of-court co-conspirator statements admitted under Rule 801(d)(2)(E). But this case does not involve either issue. Both the trial judge and the jury had abundant non-Rule-801 evidence to consider. See, e.g., Pet. App. A11, A16-A17; Gov't C.A. Br. 5-9, 32-33. /2/ Petitioners also point out (Pet. 5) that the standard of proof (preponderance of the evidence) for admitting Rule 801(d)(2)(E) evidence is not the standard of proof (beyond a reasonable doubt) for conviction. Of course, this is correct. In this case, the jury was clearly and repeatedly instructed that it must find both the existence of a conspiracy and a defendant's participation in that conspiracy beyond a reasonable doubt. See note 1, supra. Petitioners argue that applying Bourjaily in the manner of this case will "permit conviction of defendant, without any statements or actions of defendant himself, of all substantive acts committed in furtherance of such conspiracy." Pet. 8. Petitioners misapprehend the important distinction between what must be proved and the evidence used to prove it. In every conspiracy case, the jury must find beyond a reasonable doubt that the defendant himself, by his own acts and statements, willfully associated himself with the conspiracy. Thus, it is the defendant's own acts and statements, not those of another, that cause him to be a member of a conspiracy. Nevertheless, in determining what acts the defendant himself committed, and what statements he himself made, there is no basis for excluding out-of-court statements of co-conspirators admitted into evidence under Rule 801(d)(2)(E). As the Seventh Circuit explained in de Ortiz, "although a defendant's membership depends on his own words and deeds, declarations admitted in accord with Rule 104(a) and Bourjaily may be employed to show what those words and deeds are." 907 F.2d at 634 n.**. Finally, petitioners assert (Pet. 8-11) that there is a conflict among the circuits respecting whether "a jury must be told not to consider co-conspirator statements against the defendant until they find both existence of the conspiracy and defendant's membership therein beyond a reasonable doubt" (Pet. 9). Petitioners' claim is incorrect. Petitioners fail to address the fact that, in de Ortiz, the court of appeals carefully considered decisions from other circuits, including the circuits cited by petitioners, and explicitly determined that its decision does not conflict with decisions of other courts of appeals. 907 F.2d at 633-634 and n.**. Petitioners rely primarily (Pet. 9) on United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 111 S. Ct. 130 (1990). As the Seventh Circuit explained in de Ortiz, however, Angiulo rejects a defendant's argument that the pertinent portion of the jury instructions was too favorable to the government; the Seventh Circuit specifically "agree(d) with this conclusion" and found Angiulo "not inconsistent" with its own holding. See also Angiulo, 897 F.2d at 1204 (noting that the "added layer of fact-finding (in the jury instructions) was not necessary"). /3/ Petitioners' objections to de Ortiz, and to its application in this case, thus are unavailing and their claim does not warrant review. 2. Petitioners also assert (Pet. 12-14) that the trial court erred in giving the jury a special verdict form that asked it to determine how much cocaine was the "object" of the conspiracy. /4/ As the court of appeals explained, the amount of drug is a sentencing factor for the court's determination (rather than an element of the offense itself), /5/ the jury's answers to a special verdict do not bind the court, and a defendant is not prejudiced by the court's mere consideration of the jury's answers. Pet. App. A7-A8. Petitioners do not address, much less contest, this aspect of the court of appeals' holding, but it is dispositive of their claim. Accordingly, this insubstantial issue also does not require further review. /6/ 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 RICHARD A. FRIEDMAN Attorney FEBRUARY 1991 /1/ The jury instructions stated in part (V Tr. 852-860): Evidence has been received concerning statements said to have been made by the defendants. It is for you to determine whether the defendants did in fact make such statements. If you find that they did make the statements, then you must determine what weight, if any, you feel the statements deserve. In determining what weight, if any, should be given to the statements, you should consider all matters in evidence having to do with the statements, including those concerning the defendants' personal characteristics and the conditions under which the statements were made. * * * * * In determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants, the agreement made inferred from all the circumstances, and the confuct of all the alleged participants to become a member of the conspiracy. * * * The government must prove beyond a reasonable doubt that (a defendant) was aware of the common purpose, and was a willing participant. * * * * * What the evidence in the case must show beyond a reasonable doubt in order to establish proof that a conspiracy existed, is that the members in some way or manner, or through some contrivance positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan. * * * * * Before the jury may find that a defendant or any other person has become a member of a conspiracy, the evidence in the case must show beyond a reasonable doubt that the conspiracy was knowingly formed and that the defendant or other person who is claimed to have been a member, willfully participated in the unlawful plan, with the intent to advance or further some object or purpose of the conspiracy. * * * In determining whether a conspiracy existed, the jury should consider the actions and declarations of all of the alleged participants. /2/ In de Ortiz, the court explained that it did not "address() the question whether hearsay alone is sufficient to support a verdict of guilt" (907 F.2d at 932); the panel decision in this case similarly does not address that question. /3/ Petitioners also point to pattern instructions from the Eighth and Ninth Circuits (Pet. 8-9), but ignore the fact that the court of appeals specifically considered decisions from both circuits and found no conflict. See de Ortiz, 907 F.2d at 633-634 and n.**. Petitioners further claim (Pet. 9, 11) that some courts permit consideration of out-of-court co-conspirator statements without any clarifying instructions; even if petitioners' characterization of the law in these circuits is correct, the claim does not provide a basis for review because petitioners could not possibly benefit from such a rule. /4/ Petitioners do not renew their objection to the verdict form's inclusion of two, rather than three, quantities. /5/ See, e.g., United States v. Ocampo, 890 F.2d 1363, 1372 (7th Cir. 1989); United States v. Gibbs, 813 F.2d 596, 600 (3d Cir.), cert. denied, 484 U.S. 822 (1987); United States v. Normandeau, 800 F.2d 953, 956 (9th Cir. 1986); United States v. Simmons, 725 F.2d 641, 643-644 (11th Cir.), cert. denied, 469 U.S. 827 (1984). /6/ Additionally, as the court of appeals further explained (Pet. App. A8), petitioners' claim is unpersuasive even on its own terms; in light of the indictment's language regarding a conspiracy "to possess with intent to distribute in excess of five kilograms of cocaine," the form was not ambiguous.