BILLIE JO DOTSON, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7571

   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 Sixth Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The initial opinion of the court of appeals (Pet. App. A1-A11) is
reported at 871 F.2d 1318.  The opinion of the court of appeals on
rehearing (Pet. App. B1-B4) is reported at 895 F.2d 264.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 2,
1990.  Pet. App. C1.  A petition for rehearing was denied on March 23,
1990.  Pet. App. C2.  The petition for a writ of certiorari was filed
on May 23, 1990.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether an error in the court's instructions regarding the offense
of using the telephone to facilitate a drug offense was harmless.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of Tennessee, petitioner was convicted on one count
of possession of marijuana with intent to distribute it, in violation
of 21 U.S.C. 841(a)(1), and nine counts of using a telephone to
facilitate the drug felonies of possession of cocaine with intent to
distribute it and distribution of cocaine, in violation of 21 U.S.C.
843(b).  She was sentenced to a total of 14 years' imprisonment -- two
years' imprisonment on the marijuana charge and 12 years' imprisonment
on the telephone facilitation charges.  The court of appeals affirmed.
 Pet. App. B1-B4.

   1. The evidence at trial is not in dispute.  In February of 1984,
the government conducted court-authorized interception of drug-related
telephone communications between petitioner and various third parties.
 On March 19, 1984, federal and state agents obtained and executed a
search warrant for petitioner's residence.  The agents seized several
large garbage bags containing more than 24 pounds of marijuana and
eight smaller bags of marijuana cumulatively weighing less than one
pound.  An agent showed the large garbage bags to petitioner, but she
contended that the substance inside the bags was nothing but ragweed.
After further questioning, petitioner denied knowing anything about
the marijuana.  In the course of the search, the agents also found
weapons, scales, a grinder, and a sifter.  The sifter contained
cocaine residue.  The agents also found "bug detectors" designed to
discover electronic telephone surveillance.  Gov't C.A. Br. 2-4.

   2. Petitioner requested a jury instruction stating that in order to
convict her on the telephone facilitation counts, the jury would have
to find by a preponderance of the evidence that she distributed
cocaine or possessed cocaine with the intent to distribute it.  The
district court refused the request on the ground that it would confuse
the jury to charge it on both reasonable doubt and preponderance of
the evidence.  In its instructions, the district court charged the
jury that the telephone facilitation statute, 21 U.S.C. 843(b), makes
it a crime for anyone knowingly to use a telephone "to facilitate the
commission" of the offense of unlawful distribution of cocaine or
possession of cocaine with intent to distribute it.  Pet. App. A3.

   3. In its initial opinion, the court of appeals reversed
petitioner's convictions on the telephone facilitation counts.  Pet.
App. A1-A11.  Petitioner contended on appeal that with respect to the
telephone facilitation counts, the jury should have been instructed
that the government was required to prove the underlying drug offenses
by a preponderance of the evidence.  The court, however, rejected that
standard.  Instead, the court concluded that the government must prove
the commission of the predicate drug offenses beyond a reasonable
doubt in order to sustain the facilitation counts.  Pet. App. A4-A5.
The court held that under the instruction the district court gave, a
jury could have found petitioner guilty of the telephone facilitation
charge without finding that the underlying drug offense was committed.
 For that reason, the court held, the instruction did not adequately
describe the elements of the telephone facilitation offense.  Pet.
App. A5-A6.

   Judge Guy dissented.  He concluded that the district court's
instruction was adequate, since it was taken directly from the
language of the telephone facilitation statute.  Judge Guy declined to
decide whether the underlying offense should have been proved by a
preponderance of the evidence or by some higher standard.  Pet. App.
A10.

   The panel granted the government's petition for rehearing.  On
rehearing, the panel affirmed the conviction and amended part of its
opinion.  Pet. App. B1-B4.  The court found the instruction to be
accurate, but incomplete.  The court explained that the instruction
should have expressly advised the jury that in order to find that
petitioner used the telephone to facilitate the commission of drug
crimes, the jury had to find beyond a reasonable doubt that the
underlying drug crimes were actually committed.  Applying the harmless
error test, however, the court found the instructional error to be
harmless beyond a reasonable doubt.  Pet. App. B1-B4.

   Judge Guy wrote a brief concurring opinion.  He agreed with the
panel's harmless error analysis, although he found the district
court's instruction not to be erroneous in any event.  Pet. App. B4.
Judge Jones dissented.  He adhered to the panel's original opinion and
concluded both that the instruction was erroneous and that the error
was not harmless.  Ibid.

                               ARGUMENT

   The question presented for review is whether the court of appeals
erred in applying harmless error analysis to the jury instruction
given below.  Although petitioner's question presented correctly
identifies that issue as the one presented by this case (Pet. 1), the
body of the petition requests that this Court review a different
question, which this case does not properly present:  "whether an
'underlying crime' instruction must be given and, if so, by what
standard of proof it must be found." Pet. 10.

   The telephone facilitation statute, 21 U.S.C. 843(b), makes it an
offense to use a telephone to facilitate the commission of any act
constituting a felony under the Controlled Substances Act.  Four
courts of appeals have held that in order to sustain a conviction
under Section 843(b), the government must prove the commission of the
underlying predicate offense by a preponderance of the evidence.
United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987);  United
States v. Russo, 796 F.2d 1443, 1463-1464 (11th Cir. 1986);  United
States v. Jefferson, 714 F.2d 689, 699 (7th Cir. 1983);  United States
v. Rey, 641 F.2d 222, 224 n.6 (5th Cir.), cert. denied, 454 U.S. 861
(1981).  In United States v. Johnstone, 856 F.2d 539, 542-545 (3d Cir.
1988), the Third Circuit disagreed and held that the government must
prove the commission of the predicate offense beyond a reasonable
doubt.

   In both its original opinion and its amended opinion, the court of
appeals agreed with the Third Circuit's decision in Johnstone that the
jury in a telephone facilitation case must apply the reasonable doubt
standard to the commission of the underlying predicate offense.
Because the court's ruling on the standard to be applied was favorable
to petitioner -- indeed, more favorable than the instruction
petitioner sought in the district court and argued for in the court of
appeals -- this case does not present that issue to the Court.

   The court of appeals also agreed with petitioner that the
instruction on the elements of Section 843(b) was erroneous, because
it failed to establish with sufficient clarity that in order to
convict petitioner of telephone facilitation, the jury had to find
that the predicate drug offenses had been committed.  The court upheld
petitioner's convictions because it found that instructional error to
be harmless.  Thus, the only question that this case presents is
whether the court of appeals was correct in finding the instructional
error to be harmless, an issue to which petitioner makes only passing
reference in the body of the petition (see Pet. 9).

   1. At the outset, we submit that the district court's instruction
did not contain any legal error at all.  Although the court of appeals
found the instruction to be erroneous, it did not find it to be
misleading, but concluded only that it "did not go far enough." Pet.
App. B2.  According to the court of appeals, the instruction should
have added that the jury had to find that the underlying drug crimes
were actually committed.  We agree with Judge Guy, however, that the
instruction given by the court was sufficient to convey that
requirement.  Consistently with the standard pattern jury instruction
on Section 843(b), the court advised the jury that it had to find
"beyond a reasonable doubt" that the defendant "used the communication
facility while in the process of committing, or to facilitate the
commission of, the offense of unlawful distribution of and possession
with intent to distribute Cocaine hydrochloride." Gov't C.A. Br. 7,
quoting Jury Charge Tr. 368.

   As the court of appeals acknowledged, "one technically cannot
facilitate the commission of a drug offense if the drug offense does
not actually occur." Pet. App. B2.  The instruction that was given
therefore accurately conveyed the concept that the jury could find the
use of the telephone to be unlawful only if the jury found that the
use of the telephone facilitated a drug offense that was actually
committed.  The complaint of the court of appeals majority was simply
that the instruction did not convey that concept with sufficient
clarity.

   We agree with Judge Guy (see Pet. App. A10-A11) that it is
difficult to fault an instruction that uses the language drawn
directly from the statute to describe the elements of an offense;  in
particular, the instruction given in this case was sufficient because
the natural understanding of the words suggests that in order for one
to "facilitate the commission of" an act, the act must occur.  It is
especially difficult to fault the instruction that the district court
gave in light of the fact that the instruction requested by petitioner
was clearly erroneous.  The defendant's proposed instruction would
have required the jury to find that the underlying offense was
committed by the defendant, while the statute clearly requires only
that the underlying offense be committed by someone.  See Gov't C.A.
Br. 10 (quoting petitioner's requested instruction).  Decisions under
Section 843(b) make clear that although commission of the underlying
offense is a necessary element, there is no requirement that the
defendant himself commit the underlying offense.  See United States v.
Iennaco, 893 F.2d 394, 396 (D.C. Cir. 1990);  United States v. Russo,
796 F.2d at 1464;  United States v. Rey, 641 F.2d at 227 n.10;  United
States v. Watson, 594 F.2d 1330, 1342-1343 (10th Cir.), cert. denied,
444 U.S. 840 (1979).  In light of petitioner's failure to offer an
accurate proposed instruction, any ambiguity in the instruction that
the district court gave therefore cannot be regarded as constituting
error.

   2. Even if the instruction given by the district court was
erroneous, the court of appeals was correct in holding that the error
was harmless.  In any event, the court's harmless error ruling does
not warrant this Court's review.  This Court has applied harmless
error analysis to a wide range of errors and has recognized that even
an error in the court's instructions on an essential element of an
offense can be harmless.  In Carella v. California, 109 S. Ct. 2419,
2420-2421 (1989), the Court remanded for a harmless error analysis
even though the jury instructions relieved the State of proving every
essential element of the offense beyond a reasonable doubt.  See Rose
v. Clark, 478 U.S. 570, 582 n.11 (1986) (jury instruction containing
an erroneous rebuttable presumption);  Pope v. Illinois, 481 U.S. 497,
504 n.7 (1987) (jury instruction misstating an element of the
offense);  see also United States v. Kerley, 838 F.2d 932, 938-939
(7th Cir. 1988);  United States v. North, No. 89-3118 (D.C. Cir. July
20, 1990), slip op. 84-88.

   As the court of appeals noted, the instructional error in this case
-- assuming there was error at all -- was "minor." Pet. App. B3.  The
district court alluded to the jury's responsibility, but, in the
court's view, "failed to make the jury's duty sufficiently clear."
Ibid.  Yet, the court concluded (Pet. App. B3) that the instruction,
even though incomplete, "did not invade the province of the jury and
did not prevent it from considering whether or not the drug crimes
underlying the facilitation counts actually occurred." Moreover, as
the court noted (Pet. App. B4), "the defense did not vigorously
contest (petitioner's) possession either at trial or on appeal" and,
after a review of the record, the court found "uncontestable" the
question whether petitioner actually committed the underlying crime.
The court of appeals identified the issue as "whether, despite the
trial court's ambiguous instruction, it is clear beyond a reasonable
doubt that the jury also found the cocaine possession element." Pet.
App. B4.  From a review of the record, the court concluded that the
jury must have found that element to be present.  Ibid.  That standard
is consistent with the framework for applying harmless error analysis
to instructional errors that all members of this Court have endorsed.
See Carella v. California, 109 S. Ct. at 2421;  id. at 2423 (Scalia,
J., concurring in the judgment) (it is clear beyond a reasonable doubt
"that the jury found the facts necessary to support the conviction");
Rose v. Clark, 478 U.S. at 580-581.

   In light of the overwhelming and uncontested evidence regarding the
cocaine possession and distribution offenses, and in light of the
unlikelihood that the jury was misled by the instruction in question,
the court of appeals was clearly correct in finding the error in the
instruction, if any, to be harmless.  Review of that fact-bound
conclusion is unwarranted.

                              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

   SIDNEY M. GLAZER

      Attorney

   JULY 1990