ROBERT MARTINEZ, PETITIONER V UNITED STATES OF AMERICA No. 89-7539 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) is reported at 883 F.2d 750. JURISDICTION The judgment of the court of appeals was entered on August 23, 1989. A petition for rehearing was denied on February 28, 1990 (Pet. App. B). The petition for a writ of certiorari was filed on May 17, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court should have inquired sua sponte into whether petitioner waived his right to testify in his own defense when petitioner did not bring to the court's attention his supposed desire to testify. 2. Whether petitioner's conviction must be reversed because a magistrate presided over jury selection at his trial even though he did not object to the magistrate's role. STATEMENT Following a jury trial in the United States District Court for the District of Hawaii, petitioner was convicted on four counts of importing heroin, in violation of 21 U.S.C. 952(a) and 960(a)(1), and one count of possessing heroin with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 20 years' imprisonment. 1. The evidence at trial, the sufficiency of which is not in dispute, is summarized in the opinion of the court of appeals. It showed that petitioner was a party to a scheme to import heroin from Thailand. In September and October 1986, Customs officers in Hawaii intercepted four identically wrapped packages that had been sent from Changmai, Thailand. Those packages were addressed in the same handwriting, and although they were sent to four different addressees, each package bore the same misspelled word. The addressees did not know each other; their only common bond was their acquaintance with petitioner. 883 F.2d at 751. Each of the four packages contained a carved wooden elephant that turned out to be packed with heroin. None of the addressees had ordered or expected to receive a wooden elephant. The officers made a controlled delivery of the package that was addressed to petitioner's aunt. Thereafter, the agents maintained surveillance at her house. On the ninth day of their surveillance, the agents saw a car leave the house; they also discovered that the wooden elephant was missing from the house. The agents followed the car and were led on a wild chase through Honolulu. When they finally stopped the car, the agents found that petitioner was driving the car and that he had the wooden elephant with him. 883 F.2d at 751-752. 2. Petitioner was represented at trial by Michael Weight, an experienced retained lawyer who had previously represented petitioner in another criminal case. 883 F.2d at 752, 755. Prior to trial, petitioner told Weight that he wanted to testify in his own defense, but Weight said that he could not make a recommendation as to that course of action until he had heard the government witnesses' testimony. Weight ultimately recommended that petitioner not testify. Petitioner did not persist in his desire to testify, nor did he bring to the attention of the trial judge any dispute that he and Weight had on that issue. After trial, petitioner fired Weight, retained new counsel, and moved for a new trial on the ground that Weight had prevented him from testifying in his own defense. At a hearing held on petitioner's motion, Weight said that petitioner had expressed a desire to testify, but that Weight had overruled petitioner on the ground that it would have been "suicidal" for petitioner to take the stand. 883 F.2d at 752. /1/ According to Weight, at no time thereafter did petitioner express his intention to testify in spite of Weight's advice. Ibid. The district court denied petitioner's motion. The court reasoned that Weight was highly competent and had made a valid strategic decision not to put petitioner on the stand. 883 F.2d at 755. It also held that, even if petitioner had a right to testify that only he could waive, any error resulting from Weight's strategic decision was harmless. The court found that the evidence of petitioner's guilt was overwhelming and that petitioner's proposed exculpatory testimony would not have affected the verdict. Id. at 753. 3. The court of appeals affirmed by a divided vote. The court recognized that the right to testify is a fundamental right that is personal to a defendant, but held that a trial judge has no obligation to inquire sua sponte whether a defendant who does not testify has knowingly and intelligently waived his right to testify, 883 F.2d at 755-757, 760. Instead, the court concluded, the decision whether a defendant should testify is a matter of trial strategy that rests with the defendant and his lawyer. Id. at 757-758. The court reasoned that a waiver could be presumed from a defendant's failure to assert the right at trial, similar to the presumed waiver that arises from a defendant's silence concerning other constitutional rights. Id. at 758-759. Adopting the unanimous view of the other courts of appeals and the majority view of the state courts, the court held that a trial court has not duty to inform a defendant of his right to testify or to obtain an explicit waiver from the defendant of that right. Id. at 760. Since it was obvious that petitioner knew of his right to testify in this case, the court concluded that the court's failure to question him about that right had not denied him a fair trial. Id. at 761. Judge Reinhardt dissented. He expressed the view that a defendant's silence at trial is not enough to constitute a waiver of his right to testify, and that a trial court should conduct a colloquy on the record with the defendant concerning both his awareness of his right to testify and his decision not to exercise that right. 883 F.2d at 761-774. 4. At petitioner's trial, a magistrate presided over jury selection. Petitioner did not object to the delegation of jury selection to the magistrate. Pet. 5; Pet. App. F3. On June 12, 1989, while petitioner's appeal was pending, this Court decided Gomez v. United States, 109 S. Ct. 2237 (1989), which held that the Federal Magistrates Act does not authorize district courts to delegate jury selection to magistrates in criminal trials without the defendant's consent. On September 13, 1989, after the court of appeals affirmed petitioner's conviction, another panel of the court of appeals held in United States v. France, 886 F.2d 223 (9th Cir. 1989), cert. granted, 110 S. Ct. 1921 (1990), that a defendant's failure to object to a magistrate's supervision of jury selection could be excused on the ground that an objection would have been futile in light of prior Ninth Circuit decisions approving the delegation of jury selection to magistrates. On April 2, 1990, after his petition for rehearing with suggestion of rehearing en banc was denied, petitioner moved in the court of appeals for summary reversal of his convictions and for a new trial based on United States v. France, supra. In response, the government moved for a stay of further proceedings until this Court disposed of the government's petition for a writ of certiorari in France, which was pending at that time. On May 11, 1990, the court of appeals recalled its mandate and stayed proceedings in this case pending this Court's disposition of the France case. ARGUMENT 1. Petitioner renews his contention that the district court was required to advise him of his constitutional right to testify and to determine whether his waiver of that right was a knowing and voluntary one. Pet. 8-19. The decision of the court of appeals is correct, and it does not conflict with the decision of any other court of appeals. Further review is therefore unwarranted. /2/ It is well settled that a criminal defendant has a constitutional right to testify in his own defense at trial. See Rock v. Arkansas, 483 U.S. 44, 49-53 (1987); Faretta v. California, 422 U.S. 806, 819 n.15 (1975); Brooks v. Tennessee, 406 U.S. 605, 612 (1972). The courts of appeals have uniformly held, however, that a district court has no obligation to advise a defendant who is represented by counsel that he has a right to testify, and no duty to question whether the defendant's waiver of his right to testify is a knowing or voluntary one. See Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.), cert. denied, 109 S. Ct. 110 (1989); Siciliano v. Vose, 834 F.2d 29, 30-31 (1st Cir. 1987); United States v. Bernloehr, 833 F.2d 749, 751-752 (8th Cir. 1987); United States v. Janoe, 720 F.2d 1156, 1161 n.9 (10th Cir. 1983), cert. denied, 465 U.S. 1036 (1984). Rather, the courts have held that it is "(t)he accused (who) must act affirmatively" to express his desire to testify. United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847 (1985). The courts of appeals have correctly concluded that the defendant bears the burden of affirmatively exercising his right to testify. The decision whether to testify is, in large part, a matter of trial strategy. It is a subject that is traditionally discussed by counsel and his client without intervention from the court. For that reason, it is primarily the responsibility of defense counsel -- and not the district court -- to advise a defendant on whether to testify. See United States v. Systems Architects, Inc., 757 F.2d at 375. A defendant's right to testify is therefore analogous to his right to cross-examine witnesses and his right to call witnesses in his defense, which are waived if the defendant fails to assert them, and which may be waived without the need for any inquiry on the part of the court. As the court of appeals explained, to require the district court to ask about a defendant's failure to testify would create a risk of improper intrusion into the attorney-client relationship and interference with defense strategy. 883 F.2d at 760; see also United States v. Bernloehr, 833 F.2d at 752 n.3. By advising a defendant of his right to testify, the district court "could influence the defendant to waive his constitutional right not to testify, 'thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right.'" 883 F.2d at 760 (quoting Siciliano v. Vose, 834 F.2d at 30). Accordingly, the courts of appeals have properly held that a district court has no duty to advise a defendant of his right to testify or to inquire into his decision not to testify in the absence of some expression by the defendant of a desire to testify. /3/ In any event, it is clear that petitioner knew of his right to testify in this case. At the post-trial hearing, petitioner admitted that he several times had discussed that right with his trial lawyer. Despite his purported desire to testify at trial, petitioner did not object when his lawyer rested the defense case without calling him as a witness. Nor did petitioner insist to defense counsel that he wanted to testify in spite of counsel's advice. As the court of appeals concluded, petitioner clearly waived his right to testify under those circumstances. 883 F.2d at 761. Furthermore, the district court found that any infringement of petitioner's right to testify was harmless in light of the overwhelming evidence against him and the nature of his proposed testimony -- a proclaimed lack of knowledge of the contents of the wooden elephant that he picked up at his aunt's house. That story was completely undercut by petitioner's attempts to evade arrest after picking up the wooden elephant by leading the agents on a wild chase through the streets of Honolulu. Consequently, any error arising from the court's failure to elicit a formal waiver of petitioner's right to testify was harmless on the facts of this case. 2. Petitioner also contends that his convictions must be reversed because a magistrate presided over jury selection at his trial, even though petitioner did not object to the magistrate's role. Petitioner suggests that his petition should be held and disposed of in light of this Court's decision in United States v. France, No. 89-1363. On April 23, 1990, this Court granted the government's petition for a writ of certiorari to review the Ninth Circuit's decision in United States v. France, 886 F.2d 223 (1989), cert. granted, 110 S. Ct. 1921 (1990). That case presents the question whether a defendant's failure to object to the magistrate's supervision of jury selection may be excused on the ground that an objection would have been futile in light of prior Ninth Circuit decisions approving the delegation of jury selection to magistrates. The Court need not hold this case pending the disposition of the France case. Like France, this case involves the broad question whether a defendant who fails to object to a magistrate's conducting voir dire can obtain a reversal under Gomez v. United States, 109 S. Ct. 2237 (1989). Since petitioner raised that issue for the first time only after his petition for rehearing was denied, however, the court of appeals has not yet addressed it. Rather, the court of appeals has recalled its mandate and stayed proceedings in this case until the Court decides France. Because the court of appeals will resolve petitioner's claim in light of this Court's decision in France, there is no reason for the Court to hold this case pending its disposition of that case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOSEPH C. WYDERKO Attorney AUGUST 1990 /1/ Weight based that determination on several factors. First, he knew that petitioner could be impeached with a recent conviction for using a communications facility to further the distribution of cocaine. Weight also knew that petitioner's aunt would contradict a substantial part of petitioner's proposed testimony. Finally, the prosecutor had advised Weight that if petitioner testified, the government would call a rebuttal witness who would testify that he had trafficked in heroin with petitioner and a Thai national. 883 F.2d at 755. /2/ Last Term, the Court denied petitions for writs of certiorari in two cases raising this issue. See Evans v. United States 110 S. Ct. 365 (1989); Crawford v. United States, 110 S. Ct. 2622 (1990). /3/ Contrary to petitioner's contention (Pet. 17-19), there is no conflict between the court of appeals' decision here and the decision of the Seventh Circuit in Ortega v. O'Leary, supra. In Ortega, the court of appeals agreed that trial courts have "no affirmative duty to determine whether a defendant's silence is the result of a knowing and voluntary decision not to testify." 843 F.2d at 261. In that case, however, the defendant made the trial court aware of his desire to testify. Under those circumstances, the Seventh Circuit concluded that the trial court should have made an inquiry. Id. at 260, 263. The court went on to find the error to be harmless, because Ortega's proposed testimony was merely cumulative of evidence that was presented at trial. Id. at 262-263. Ortega thus simply illustrates the difference between a silent defendant and one who expresses a desire to exercise his right to testify.