DERRICK TOWNSEND, PETITIONER V. UNITED STATES OF AMERICA No. 89-7592 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 District Of Columbia Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. B1-B8) is not reported, but the judgment is noted at 896 F.2d 599 (Table). An order and opinion of the district court (Pet. App. A1-A13) are not reported. JURISDICTION The judgment of the court of appeals was entered on February 22, 1990. The petition for a writ of certiorari was filed on May 22, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether a shouting match between a government agent and several spectators during a recess in the trial violated petitioner's right to a public trial. 2. Whether petitioner's rights under the Confrontation Clause were violated by the introduction into evidence of a statement by petitioner's co-defendant that did not refer to petitioner or by a reference to that statement during the prosecutor's closing argument. 3. Whether the evidence was sufficient to support petitioner's conviction. STATEMENT Following a jury trial in the United States District Court for the District of Columbia, petitioner and two co-defendants, Shecham Lafayette and Raymond Lewis, were each convicted on one count of conspiring to distribute cocaine and to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846; one count of conspiring to distribute marijuana and to possess marijuana with intent to distribute it, in violation of 21 U.S.C. 846; one count of conspiring to carry firearms during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 371 and 924(c); one count of possession of more than 50 grams of cocaine base with intent to distribute it, in violation of 21 U.S.C. 841(a) and (b)(1)(A)(iii); one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a); and two counts of of possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a); and two counts of carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c). Petitioner was sentenced to 450 months' imprisonment, five years' supervised release, and a $600,000 fine. The court of appeals affirmed. Pet. App. B1-B8. 1.a. The evidence at trial showed that petitioner belonged to a drug trafficking organization, led by co-defendant Lafayette, that distributed cocaine and marijuana from apartments in Washington, D.C., and northern Virginia. Petitioner delivered drugs to the apartments, made collections, paid drug sellers and lookouts, and carried firearms in connection with these operations. In December 1987, law enforcement agents seized drugs, firearms and ammunition from one of the organization's Washington apartments. The agents also seized documents detailing payments made to petitioner, Lafayette, and others. Gov't C.A. Br. 7-15. b. During a recess in the trial, an INS agent asked several spectators for identification after they had left the courtroom. A shouting match ensued between the agent and the spectators. When the trial resumed, counsel for one of petitioner's co-defendants called the episode to the court's attention, and petitioner moved for a mistrial. The prosecutor advised the court that he had been told the day before that the INS was going to send an agent to the trial to find out who was in the courtroom. He cited three reasons for the inquiry: suspicion that one of the individuals in the courtroom might be a fugitive, a belief that illegal aliens had been associated with the defendants, and an incident in which an agent had intervened to protect a witness who had been followed from the courtroom by persons who, the agent believed, intended to harass the witness. Gov't C.A. Br. 34. The district court questioned the jury to determine whether any of its members had been exposed to the altercation. When several jurors indicated that they had seen it, the court told the jury that the incident had nothing to do with the case, and that they should not be influenced by it. The court conducted an individual voir dire of each juror who had witnessed the altercation; all of them stated unequivocally that they would be able to act as fair and impartial jurors. Finding that the incident would not affect the jury's impartiality, the court denied petitioner's request for a mistrial. The court also instructed the government that INS agents should thereafter stay away from the courtroom and the adjoining hallway. Pet. App. B5-B6; Gov't C.A. Br. 34-35. c. In connection with an investigation of a homicide in New York City, co-defendant Lafayette told New York City police officers that he was involved in selling crack and cocaine in Washington, D.C. In his statement, Lafayette referred to Roy Davis, Earl Wilson, and Karl and Trevor Richards as his accomplices. Lafayette also said that two brothers from Jamaica whose names he did not know were involved in his drug business. Lafayette's statement did not mention or allude to petitioner or co-defendant Lewis. Pet. App. A5-A6, A9-A10. Before trial, petitioner and Lewis moved to exclude Lafayette's statement or for a severance, arguing that the admission of the statement in their trial would violate the Confrontation Clause as construed in Bruton v. United States, 391 U.S. 123 (1968). The district court denied the motion. Finding that the statement did not "directly implicate" petitioner or Lewis "by name or otherwise," the court concluded that the admission of the statement would not violate the principles set forth in Bruton. Pet. App. A10. The court determined, however, that the statement would not be admissible against petitioner and Lewis under the co-conspirator exception to the hearsay rule, and the court invited counsel for petitioner and Lewis to submit "appropriate cautionary jury instructions" regarding Lafayette's statement. Pet. App. A11, A13. Neither petitioner nor Lewis requested an instruction that the statement was admissible only against Lafayette, and no such instruction was given. At trial, evidence of the statement was introduced by the government and by Lafayette. Gov't C.A. Br. 22. During closing arguments, Lafayette's attorney maintained that the statement referred to a previous conspiracy, "something he had done in the past." Gov't C.A. Br. 26. In rebuttal, after reminding the jury that Lafayette's statement did not refer to "these defendants," the prosecutor responded to Lafayette's argument in part by noting that the statement had referred to a man named Earl Wilson and that there had been evidence that petitioner had supplied cash for a car purchased by a nominee for Wilson. Gov't C.A. Br. 27. The thrust of the argument was to rebut Lafayette's claim that the statement did not relate to current drug dealing activities. 2. The court of appeals affirmed. Pet. App. B1-B8. With respect to the contention that the admission of evidence of Lafayette's statement violated the Confrontation Clause as construed in Bruton, the court held that "there was never a Bruton problem because Lafayette never mentioned Lewis or (petitioner) in his statements or referred to the existence of unnamed parties." Id. at B3. The court also rejected petitioner's argument that the prosecutor's rebuttal had improperly linked petitioner with the statement. The court explained that "at worst the prosecutor used Lafayette's confession in a way that was incriminating by connection with other evidence introduced at trial." Ibid. The court noted that in Richardson v. Marsh, 481 U.S. 200 (1987), this Court "declined to extend Bruton to cases of 'evidentiary linkage' or 'contextual implication.'" Pet. App. B3. The court also held that the altercation between the INS agent and the spectators did not in any way deny petitioner his right to a public trial. The court noted that petitioner and his co-defendants could "point to nothing specific to support their contention that they did not receive a fair and open trial," and it concluded that any problem caused by the INS agent's activity was "cured by the trial judge's probing of the jury." Pet. App. B6. ARGUMENT 1. Petitioner argues that the INS agent's inquiries and the ensuing altercation "effectively 'chill(ed)' unidentified potential witnesses from coming forward" and constituted an "exclusion of spectators." Therefore, petitioner argues, the agent's conduct violated petitioner's right to a public trial. Pet. 14. As the court of appeals found, nothing in the record supports petitioner's speculation that any potential spectator or witness was influenced by the altercation between the INS agent and several spectators. /1/ Furthermore, because there was no judicial order excluding anyone from petitioner's trial, this case does not implicate the standards outlined in Waller v. Georgia, 467 U.S. 39 (1984); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); and other similar cases cited in the petition. The petition also characterizes the INS agent's conduct as a violation of petitioner's rights under the Due Process Clause. Pet. 22-24. The district court, however, conducted an individual voir dire of each juror who had witnessed the incident and determined that the altercation had not affected any juror's ability to serve impartially. The court also instructed the jury that the incident had no connection to the trial and should be disregarded. As the court of appeals held, those measures assured the fairness of petitioner's trial. This is certainly not a case in which "the conduct of law enforcement agents (was) so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-432 (1973). 2. Petitioner also contends that the admission into evidence of co-defendant Lafayette's statement and the prosecutor's reference to the statement during closing argument violated petitioner's rights under the Confrontation Clause. Pet. 24-32. In Bruton v. United States, supra, this Court held that a defendant's right to confront the witnesses against him was violated when the court admitted a confession by a co-defendant that named the defendant as an accomplice, notwithstanding an instruction advising the jury that the statement was inadmissible against the defendant. In Richardson v. Marsh, supra, however, the Court clarified the reach of Bruton's reasoning, holding that where the co-defendant's confession is incriminating only when linked with other evidence at the trial, the defendant's rights are sufficiently protected by a limiting instruction. The admission of Lafayette's statement was entirely consistent with these principles. The statement did not refer to petitioner in any way, nor did it contain any reference to unnamed individuals that the jury might understand to relate to petitioner. At most, Lafayette's statement tended to incriminate petitioner only when linked to other evidence introduced at trial. Accordingly, the admission of Lafayette's statement did not violate petitioner's rights under the Confrontation Clause. See, e.g., United States v. Sophie, 900 F.2d 1064, 1076-1077 (7th Cir. 1990); United States v. DiCarlantonio, 870 F.2d 1058, 1062 (6th Cir.), cert. denied, 110 S. Ct. 323 (1989). /2/ Nor did the prosecutor's rebuttal argument violate petitioner's rights. To begin with, because petitioner did not object to the prosecutor's statements at trial, they would justify relief from the conviction only if they were "such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." United States v. Young, 470 U.S. 1, 16 (1985). No such showing could be made on the record of this case. Further, the prosecutor did not argue that Lafayette's statement tended to show that petitioner was guilty of the offenses charged. To the contrary, he reminded the jury that the persons Lafayette had named were "not these defendants" -- i.e., petitioner and co-defendant Lewis. The thrust of the prosecutor's argument was that the evidence at trial undercut Lafayette's assertion -- advanced by his attorney in closing argument -- that the statement related solely to an earlier drug conspiracy that had ended before the events relevant to this case. For that purpose, the prosecutor pointed out, among other things, that the statement had mentioned Earl Wilson and that petitioner had supplied the cash for a car purchased by a nominee, Riddick, for Earl Wilson. See Pet. 26-27. /3/ The prosecutor's closing argument does not constitute plain error entitling petitioner to relief from his conviction, especially in light of what the court of appeals correctly characterized as "abundant" evidence of petitioner's guilt. Pet. App. B4. 3. Petitioner argues that the evidence was insufficient to sustain his conviction. Pet. 27-32. He did not challenge the sufficiency of the evidence in the court of appeals, however, and that issue is not properly presented to this Court. See Youakim v. Miller, 425 U.S. 231, 234 (1976); Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970). In any event, as the court of appeals observed, there was ample evidence of petitioner's guilt. Individuals who lived in or sold drugs out of the apartments involved in the defendants' drug trafficking activities testified that petitioner delivered drugs, collected money, paid drug sellers, and carried firearms in connection with those activities. See Gov't C.A. Br. 14; 11/1/88 Tr. 44-45, 58, 59; 11/2/88 Tr. 19, 22-23, 91, 110. One witness identified him as an authority figure in the organization. Gov't C.A. Br. 14; 11/1/88 Tr. 91. During a search at one location, petitioner shouted warnings when police arrived and gave the officers a false name. Gov't C.A. Br. 14. Petitioner's argument that the witnesses against him were unworthy of belief (Pet. 28-31) is without merit. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /4/ EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS E. BOOTH Attorney AUGUST 1990 /1/ In order to show that the government has violated a defendant's rights under the Compulsory Process Clause or the Due Process Clause by depriving him of an opportunity to call a potential witness, the defendant must show that the witness's testimony would have been "material and favorable to the defense." See United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982). In this case, petitioner has not identified any potential witness who was deterred from testifying for the defense, much less shown that any such witness's testimony would have been favorable and material. See United States v. LeAmous, 754 F.2d 795, 798 (8th Cir.), cert. denied, 471 U.S. 1139 (1985); United States v. Duggan, 743 F.2d 59, 82 n.8 (2d Cir. 1984). Petitioner did not put on a defense at his trial. /2/ In its order admitting the evidence, the district court stated that it would "entertain any appropriate cautionary jury instructions proposed by defendants regarding the proper use of defendant Lafayette's statements." Pet. App. A13. Petitioner chose not to seek a limiting instruction. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). /3/ Petitioner contends that the closing argument also mischaracterized the evidence in several respects. Pet. 27. Petitioner's claims of error are all either mistaken or immaterial. Although the New York City police officer's testimony concerning Lafayette's statement did not refer to other individuals, notes of the statement introduced into evidence by Lafayette did. Gov't C.A. Br. 28 n.37. The officer's testimony supported the prosecutor's assertion that Lafayette confessed to participation in an ongoing drug trafficking operation; according to the officer, Lafayette stated that "he was buying his drugs in Brooklyn, transporting them down to Washington and selling crack" at a profit of $20,000 each week. Ibid. (emphasis added). To be sure, Riddick (the individual who, according to the prosecutor had taken title to a car purchased for "Earl Wilson") testified only that he had acted for "Earl" and stated that he did not know Earl's last name. Ibid. However, the jury was instructed that the lawyers' arguments were not evidence, and it was in a position to assess whether "Earl" was Earl Wilson. Finally, contrary to petitioner's assertion that Riddick "simply did not testify that (petitioner) brought money to purchase a Nissan for Earl Wilson" (Pet. 27), Riddick testified that petitioner counted out $9,000 in cash in a Nissan dealership while Riddick signed a sales contract. Gov't C.A. Br. 28 n.37. It was not unfair argument to suggest to the jury that petitioner had "showed up with the cash" (Pet. 27) he counted out. /4/ The Solicitor General is disqualified in this case.