ANTHONY BRUCE JOHNSON, PETITIONER V. UNITED STATES OF AMERICA No. 90-5161 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. A 5709-5717) is reported at 903 F.2d 1219. JURISDICTION The judgment of the court of appeals was entered on April 30, 1990. The petition for a writ of certiorari was filed on July 2, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a pretrial ruling that petitioner would be required to try on clothing seized from a carry-on bag if he testified is reviewable on appeal where petitioner chose not to testify. 2. Whether the district court abused its discretion in making this pretrial ruling. STATEMENT After a jury trial in the United States District Court for the Central District of California, petitioner was convicted of possession with intent to distribute approximately one kilogram of cocaine, in violation of 21 U.S.C. 841(a)(1). Petitioner was sentenced to five years' imprisonment, to be followed by a four-year period of supervised release. 1. On January 6, 1988, DEA Special Agent G. William Woessner and Los Angeles Police Detective Daniel Sullivan were conducting a routine surveillance at Los Angeles International Airport (LAX) when they noticed petitioner standing alone in a ticket line. Petitioner appeared nervous, was sweating, and was looking around in a manner that made the officers suspicious. The officers approached petitioner and ultimately asked him whether they could search the carry-on bag on the floor next to him. Petitioner consented to the search and the officers found various articles of clothing and approximately one kilogram of cocaine inside the bag. Petitioner was then arrested. Pet. App. A 5712. Petitioner's initial trial, in which petitioner testified in his own defense and denied ownership of the bag or its contents, ended with a hung jury. Pet. App. A 5713; Gov't C.A. Br. 10, 12. The government did not seek to introduce any of the clothing from the bag. Pet. App. A 5713. Before the second trial, however, the government notified the court and the defense of its intention to introduce the shoes and clothing found inside the bag and to have petitioner try them on for size before the jury. Ibid. The prosecutor initially sought permission to have petitioner try on the clothes during its case-in-chief, but following extensive debate among the court and parties regarding the probative value of such evidence and whether it would constitute impermissible self-incrimination (Pet. App. B 9-24), the prosecutor agreed that he would merely introduce the clothing during the government's case-in-chief; he would not seek to have petitioner try it on unless and until petitioner testified. Id. at 24-25. The court agreed that the government could use the clothing in this manner if and when petitioner testified (ibid.), and the prosecutor asked that the court reserve ruling upon whether petitioner could be forced during the government's rebuttal case to try on the clothing in the event he elected not to testify. Id. at 25. Defense counsel strongly objected, stating: I would request a ruling from Your Honor prior to the defense case so that we may proceed accordingly, knowing whether if he doesn't take the stand, he would be required to put on the clothing. That may weigh in our determination. And if a decision is going to be reached, I would request that it be done prior to defendant's case. Ibid. The prosecutor responded that it is "really impossible" for an informed ruling to be made prior to the defense case (id. at 25-26) and the court reaffirmed its inclination to reserve ruling because the issue would "become moot" if petitioner did testify. Id. at 26. Again, however, petitioner persisted in arguing that "even though the issue would be possibly moot if he does testify, (it is) important to have (a ruling) before he actually takes the stand, so he can make an informed decision as to whether he wants to testify." Ibid. The district court ultimately acceded to petitioner's requests that it provide a complete pretrial ruling on the evidentiary issue and stated that it was "inclined not to allow the Government to use the body of (petitioner) in a demonstration, if (petitioner) does not testify." Pet. App. B 27. The court made clear that its ruling did not rest on constitutional grounds, but rather rested on a weighing of probative value against unfair prejudice under Fed. R. Evid. 403. Pet. App. B 27-29. Petitioner elected not to testify at his second trial and was convicted. Pet. App. A 5713. He was not required to try on any of the clothing at issue. 2. The court of appeals affirmed. Pet. App. A 5709-5717. The court held that, for the reasons identified in Luce v. United States, 469 U.S. 38 (1984), appellate review of the district court's pretrial ruling that petitioner could be required to try on the clothing if he had testified was precluded because petitioner had elected not to testify and accordingly had never been required to try on the clothing. Pet. App. A 5715-5717. /1/ ARGUMENT The court of appeals properly applied Luce v. United States, 469 U.S. 38 (1984), in holding that petitioner's decision not to testify waived any challenge to the district court's pretrial ruling that the government could require him to try on clothing found in the bag in the event he testified and denied ownership of the bag and its contents. In addition, the district court did not abuse its discretion in making this pretrial ruling. 1. This Court in Luce identified several reasons why a nontestifying defendant could not challenge on appeal a district court's pretrial ruling that the government could impeach the defendant with evidence of a prior criminal conviction pursuant to Fed. R. Evid. 609 only if the defendant decided to testify. In denying appellate review, the Court reasoned: a) in order to balance probative value against prejudicial effect as required under Rule 609, a reviewing "court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify" (469 U.S. at 41); b) any possible harm from the pretrial ruling is "wholly speculative" because the district court would have been free to alter its pretrial ruling even if no unanticipated events occurred at trial (id. at 41-42); c) the government could decide during trial to alter its strategy and forego using the evidence in question (id. at 42); d) "a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify" (ibid.); and e) a reviewing court cannot properly assess whether the error was harmless without considering the defendant's actual testimony at trial (ibid.). Each of the factors identified in Luce applies with full force to the pretrial evidentiary ruling petitioner seeks to challenge here. First, as in Luce, a reviewing court cannot intelligently balance the probative value of having petitioner try on the clothes against any unfairly prejudicial effect without knowing "the precise nature" of petitioner's trial testimony. /2/ Second, any possible harm from the district court's pretrial ruling is "wholly speculative" because the district court would have been free in its discretion to change its pretrial ruling as the trial actually developed. Third, the government would have been free to reconsider its trial strategy -- and forego introducing evidence as to whether the clothes fit petitioner -- based upon its ongoing assessment of how the jury was reacting to the other evidence in the case. In light of the fact that the prosecutor himself was uncertain whether the clothes fit petitioner (see Pet. B 28), and thus would have incurred substantial risk in requiring petitioner to try them on before the jury, the possibility of such a reversal of strategy is more than speculative in this case. Fourth, Luce makes clear that even a defendant's "commitment to testify" if the district court rules in his favor is legally insufficient to preserve review (469 U.S. at 42); in the present case, petitioner merely stated that the district court's pretrial ruling "may weigh in our determination" whether petitioner would testify. Pet. App. B 25; see also id. at 26 (district court's ruling "may be a very important factor in (petitioner's) determination" whether to take the stand). Finally, a reviewing court cannot properly assess whether requiring petitioner to try on the clothing was harmless without considering petitioner's actual trial testimony. Petitioner attempts (Pet. 6-7) to limit Luce to pretrial evidentiary rulings based upon factual rather than purely legal considerations. Even assuming Luce could be so limited, such a limitation would not avail petitioner here. Despite petitioner's best efforts to frame the question as a purely legal one, the determinative issue under Rule 403 in this case involves the same fact-specific balancing of probative value against unfair prejudice that was required in Luce. In short, petitioner's protestations notwithstanding, this case involves precisely the same factual issue -- an issue not of "constitutional dimension" (469 U.S. at 43) -- as did Luce, which therefore controls its result. 2. Petitioner claims (Pet. 6) that there is "disagreement among the circuits as to the scope of the Luce ruling" and cites United States ex rel. Adkins v. Greer, 791 F.2d 590 (7th Cir.), cert. denied, 479 U.S. 989 (1986), as supporting his contention that conditional pretrial rulings admitting evidence only if the defendant testifies remain reviewable on appeal even if the defendant elects not to testify. The ruling below, however, is in no way in conflict with Adkins. Unlike this case or Luce, the "determinative question()" in Adkins was a purely legal one: whether "a confession elicited in violation of a defendant's Fifth Amendment rights may ever be used for impeachment purposes." 791 F.2d at 594. Moreover, the issue in Adkins was plainly of "constitutional dimension," unlike the nonconstitutional evidentiary issues involved here or in Luce. Finally, and perhaps most important, Adkins was a habeas case involving collateral review of state procedures, where the state court had itself decided to permit appellate review of the questioned ruling. In such a case, as in New Jersey v. Portash, 440 U.S. 450, 456 (1979), "federal law does not insist" that the State erred in reaching the merits of the defendant's claim despite the fact that he did not testify. See 791 F.2d at 594. In contrast, this case involved the same purely federal context as did Luce, and the federal rule announced in Luce thus applies with full force here. 3. Petitioner's contention (Pet. 9-10) that the district court's ruling placed an undue burden on his exercise of his right to testify on his own behalf, and thereby rendered his "waiver" of that right "involuntary," is mistaken. To be sure, the district court's pretrial ruling confronted him with the choice whether to face prejudicial impeachment or else "to give up his constitutional right to testify on his own behalf." Pet. 10. Yet, the fact that a defendant's testimony may render various lines of rebuttal evidence admissible does not turn each conditional pretrial evidentiary ruling holding such evidence admissible into a constitutionally objectionable burden on his right to testify in his own behalf. Nor does it render involuntary his considered decision that the risks of such testimony outweighed its benefits. 4. Although meaningful appellate review is precluded by petitioner's failure to testify and thereby provide a complete factual record, petitioner's claim that the district court abused its discretion in balancing the competing interests under Rule 403 is unpersuasive and would not warrant further review in any event. To be sure, evidence of whether the clothing from inside the carry-on bag fit petitioner would not conclusively prove (or disprove) that the contents of the bag were his. Such evidence would, however, certainly make that assertion "more probable or less probable than it would be without the evidence;" it would accordingly be relevant under Fed. R. Evid. 401. It was thus within the district court's discretion to determine under Rule 403 whether the probative value of the evidence would be outweighed by the risk of unfair prejudice. Petitioner claims the Rule 403 balancing process should not have been affected by his decision not to testify because "the issue of ownership of the bag containing the cocaine was presented whether or not Mr. Johnson testified" (Pet. 5), but petitioner's assertion to the district court was directly to the contrary. See Pet. App. B 15 ("I would argue that if Mr. Johnson does not take the stand, that we have an entirely different issue."). Moreover, a district court reasonably could conclude that requiring a nontestifying defendant to try on clothing is unfairly prejudicial but that any unfairness dissipates where the evidence is used to impeach a defendant who takes the stand and arguably perjures himself. /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 SEAN CONNELLY Attorney OCTOBER 1990 /1/ The court also rejected petitioner's contention that he was "seized" for Fourth Amendment purposes when the officers approached him at the airport. Id. at 5713-5715. Petitioner does not renew this contention here. /2/ Petitioner takes issue with this point by asserting (Pet. 5-6) that the court was aware of the precise nature of what his trial testimony would have been because he already had testified at his first trial. In Luce, however, this Court held that "(r)equiring a defendant to make a proffer of testimony is no answer; his trial testimony could, for any number of reasons, differ from the proffer." 469 U.S. at 41 n.5. Similarly, petitioner's testimony at the second trial could have differed from or narrowed his original testimony and thus altered a reviewing court's assessment of the Rule 403 balancing of interests. /3/ Petitioner does not argue that requiring him to try on clothing would abridge his Fifth Amendment privilege against self-incrimination. Any such argument would be precluded by Holt v. United States, 218 U.S. 245, 252-253 (1910), in which Justice Holmes' opinion for a unanimous Court rejected as "extravagant" the claim that requiring a defendant to try on a blouse violated the Fifth Amendment. The Court held that "the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." Id. at 252-253. See also Pennsylvania v. Muniz, 110 S. Ct. 2638, 2644-2645 (1990) (reaffirming methodology set forth in Holt and later cases for distinguishing between "real or physical evidence" not covered by Fifth Amendment privilege and "testimonial" communications that are covered).