STEVEN MITCHELL, PETITIONER V. UNITED STATES OF AMERICA No. 90-5483 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The District Of Columbia Court Of Appeals Brief For The United States In Opposition OPINION BELOW The opinion of the District of Columbia Court of Appeals (Pet. App. 1a-19a) is reported at 569 A.2d 177. JURISDICTION The judgment of the District of Columbia Court of Appeals was entered on January 26, 1990. A petition for rehearing was denied on April 12, 1990. The petition for a writ of certiorari was filed on July 11, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1257(a). QUESTION PRESENTED Whether the trial court properly decided the question of its jurisdiction over murder charges. STATEMENT Following a jury trial in the Superior Court of the District of Columbia, petitioner was convicted of felony murder while armed and first-degree murder while armed, in violation of D.C. Code Sections 22-2401 and 22-3202; and kidnapping while armed, in violation of D.C. Code Sections 22-2101 and 22-3202. He was sentenced to concurrent terms of 20 years to life imprisonment on each of the murder counts and a consecutive term of 15 years to life imprisonment on the kidnapping count. The District of Columbia Court of Appeals affirmed. 1. On October 26, 1983, Deborah Fuqua visited petitioner at his apartment in the District of Columbia. Petitioner and Fuqua went into petitioner's bedroom, where they remained for several hours. During this time, other residents of the apartment building heard screaming, crying, and choking sounds coming from the bedroom. At around 4 a.m., petitioner was seen forcibly taking Fuqua from the building. Fuqua did not return home that night, and several days later, one of the shoes she had been wearing was found in a field near the woods behind petitioner's home. During the next few days, petitioner repeatedly asked a friend, Samuel Jackson, if he could borrow Jackson's car, explaining that he had "something real heavy to take care of." On October 28, petitioner and another friend, Nathaniel Hair, borrowed a car from Hair's cousin, Daniel Houser. Pet. App. 2a-3a; Gov't C.A. Br. 2-8. On November 13, 1983, Fuqua's body was discovered in a wooded area near the Baltimore-Washington Parkway in Maryland, approximately 11 miles from petitioner's home. Fuqua had been stabbed to death. /1/ Hairs and fibers recovered from Houser's car, petitioner's bedroom, and Fuqua's clothing indicated that Fuqua's body had been in the back of Houser's car. Pet. App. 3a; Gov't C.A. Br. 8-10. 2. Petitioner was arrested and charged with kidnapping while armed, felony murder while armed, and first-degree murder while armed. In the trial court, petitioner moved to dismiss the homicide charges for lack of subject matter jurisdiction, claiming that there was insufficient evidence that the murder occurred in the District of Columbia. Petitioner renewed this contention in a motion for judgment of acquittal at the close of the government's case. His counsel advised the court that the jurisdictional issue was a question of law properly resolved by the judge, not the jury: (The jurisdictional issue) can't be given to the jury, either. The jury can't conclude -- the jury can't be instructed, if you find there's sufficient facts that the fatal blow was struck in the District of Columbia, then the defendant may be found guilty. It's not a question of fact. It's a question of law which has to be resolved at this point. Gov't C.A. Br. 12-13 (quoting Tr. 1620-1621). The trial court denied petitioner's motion, concluding that there was sufficient evidence that Fuqua's fatal injuries were inflicted in the District of Columbia. 3. On appeal, petitioner argued that the trial court erred in not submitting the jurisdictional issue to the jury. In rejecting this contention, the District of Columbia Court of Appeals first noted that petitioner had taken a contrary position in the trial court and held that petitioner was "bound by the position that his counsel took at trial." Pet. App. 4a. In any event, the court ruled, the question of where the offense took place was properly decided by the trial court, not by the jury. Ibid. Finally, the court considered the standard of proof applicable to the jurisdictional determination. It concluded that the existence of territorial jurisdiction must be established by proof beyond a reasonable doubt, and that, under this standard, there was sufficient evidence that Fuqua's murder occurred in the District of Columbia. Pet. App. 5a-6a. ARGUMENT Petitioner renews his contention (Pet. 1-5) that the question whether the trial court has jurisdiction to try criminal charges is an issue of fact for the jury, not a legal question for the court. The court below correctly rejected this contention. As an initial matter, the District of Columbia Court of Appeals correctly concluded that petitioner had waived this claim by asserting in the trial court that the question of jurisdiction should be decided by the judge, not by the jury. This Court has emphasized that "(n)o procedural principle is more familiar to (the) Court than that a * * * right may be forfeited in criminal as well as civil cases by failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." Yakus v. United States, 321 U.S. 414, 444 (1944). Accord United States v. Frady, 456 U.S. 152, 162 (1982); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239 (1940). See also Fed. R. Crim. P. 30 ("No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict.") Here, moreover, petitioner did not simply fail to assert his claim before the trial court; he specifically informed the court that it was required to decide the issue itself. As a matter of basic fairness, a defendant should not be permitted to persuade the trial court to pursue a certain course of action and, if convicted, claim on appeal that the action taken by the court at his urging was reversible error. See Wainwright v. Sykes, 433 U.S. 72, 89 (1976); 3 W. LaFave & J. Israel, Criminal Procedure Section 26.5, at 251 (1984). Having asserted in the trial court that the court should not submit the jurisdictional issue to the jury, petitioner cannot now assert that the trial court erred by accepting petitioner's invitation to adopt precisely that course. In any event, petitioner's contention (Pet. 2-3) that the decision in this case conflicts with decisions of other state courts is incorrect. Although the cases petitioner cites contain dicta suggesting that the jury should decide whether the crime occurred within the State, in none of the decisions did the court overturn a conviction on the ground that the trial court erred in not submitting the jurisdictional issue to the jury. Finally, the jurisdiction of the District of Columbia court in this case was established beyond any doubt. The evidence at trial showed that petitioner raped the victim in his bedroom and then abducted her to a nearby wooded area where he killed her with a knife. Two days later, petitioner, with his friend Hair, moved Fuqua's body to Maryland in Houser's car. 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 NINA GOODMAN Attorney OCTOBER 1990 /1/ The government presented evidence that petitioner kept a knife under the mattress in his bedroom. Pet. App. 3a; Gov't C.A. Br. 3 n.5.