EDDIE ADAIR, PETITIONER V. UNITED STATES OF AMERICA VICTORIA TOOMER, PETITIONER V. UNITED STATES OF AMERICA No. 89-6943, 89-7687 In The Supreme Court Of The United States October Term, 1990 On Petitions 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 OPINION BELOW The opinion of the court of appeals (Pet. App. 1 at 1-13) is reported at 892 F.2d 90. /1/ JURISDICTION The judgment of the court of appeals was entered on December 19, 1989, and a petition for rehearing was denied on March 6, 1990. The petition for a writ of certiorari in No. 89-6943 was filed on March 16, 1990, and the petition for a writ of certiorari in No. 89-7687 was filed on June 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's correction of a typographical error in one count of the indictment amounted to an impermissible amendment of that count. 2. Whether the district court's instruction regarding telephone facilitation under 21 U.S.C. 843(b) allowed the jury to convict without a finding that the underlying crime had been committed. 3. Whether petitioner Toomer's absence from the replaying of taped evidence during jury deliberations violated her right to be present during a "stage of the trial" under either Fed. R. Crim. P. 43, or the Fifth or Sixth Amendments. STATEMENT Following a jury trial in the United States District Court for the District of Columbia, petitioners were convicted on one count of conspiracy to distribute and possess heroin with intent to distribute it, in violation of 21 U.S.C. 846. Petitioner Adair was also convicted on ten counts of unlawful use of a telephone to facilitate a conspiracy to distribute and possess heroin with intent to distribute it, in violation of 21 U.S.C. 843(b); two counts of unlawful use of a telephone to facilitate the distribution of heroin, in violation of 21 U.S.C. 843(b); four counts of distribution of heroin, in violation of 21 U.S.C. 841(a); one count of possession with intent to distribute heroin, in violation of 21 U.S.C. 841(a); and two counts of interstate travel to facilitate a conspiracy to distribute and possess heroin with intent to distribute it, in violation of 18 U.S.C. 1952(a)(3) and 18 U.S.C. 2. Petitioner Toomer was also convicted on two counts of unlawful use of a telephone to facilitate a conspiracy to distribute and possess heroin with intent to distribute it, in violation of 21 U.S.C. 843(b). /2/ Petitioner Adair was sentenced to a total of twelve to thirty-eight years' imprisonment and a fine of $100,000. /3/ Petitioner Toomer was sentenced to two to six years' imprisonment on the conspiracy count, and to concurrent terms of one to three years on each telephone facilitation count, to be served consecutively to her sentence on the conspiracy count. /4/ 1. The evidence at trial showed that petitioner Adair was the central actor in a heroin-trafficking ring. Pet. App. 1 at 2; Gov't C.A. Br. 4-6. In June through September of 1986, after an informant had bought heroin four times from petitioner Adair, the Federal Bureau of Investigation (FBI) obtained court orders authorizing wiretaps on Adair's telephones, the telephones of three of his associates and eventual co-defendants, and the placement of a microphone in a motel he owned and frequented. Gov't C.A. Br. 3-4. Information from the electronic surveillance revealed that Adair directed a complex drug-selling conspiracy, in which Nigerians engaged in smuggling narcotics into the United States supplied heroin to Adair and several associates. Adair in turn supplied a network of street-level distributors, including petitioner Toomer, with a number of heroin packages at a time, paying them by allowing them to keep a portion of the sales price from each package. As they ran out of heroin, the dealers telephoned Adair to obtain additional supplies, and Adair telephoned the dealers to arrange the pick-up of those supplies. Gov't C.A. Br. 4-6. Adair was arrested on August 14, 1986, as he was distributing two ounces of heroin to a confidential informant. A search pursuant to a warrant of Adair's residences and motel uncovered heroin valued at over $126,000, along with drug processing equipment. All the other members of the conspiracy were arrested following the return of the indictment in the fall of 1986. See Gov't C.A. Br. 6-7. The government demonstrated petitioner Toomer's involvement in the drug distribution business and her telephone facilitation of the conspiracy through a number of tape-recorded telephone conversations between her and Adair. /5/ 2. During its deliberations, the jury sent out the following note: "In count 18, there appears to be a typographical error. Please clarify for the jury." C.A. App. IV at 1545. Count 18 alleged: "On or about August 7, 1986, within the District of Columbia, Eddie Adair and Olatunji Mosuro a/k/a Tony a/k/a Tunji, did is, a telephone, to facilitate an unlawful conspiracy to distribute and possess with the intent to distribute heroin, a Schedule I narcotic drug controlled substance, a felony, in violation of Title 21, United States Code, Section 846. (Violation of Title 21, United States Code, Section 843(b)). C.A. App. I at 23 (emphasis added). Petitioner Adair's attorney moved to dismiss the count on the ground that it did not include an essential element of the offense, i.e., the intent element, and thus failed to state an offense. C.A. App. IV at 1551, 1581-1582. The district court denied the motion, ruling that Count 18 contained a typographical error that did not prejudice the defendants, and that the indictment could be amended so that it would be consistent with the other counts. C.A. App. IV at 1591. Over petitioner's objection (C.A. App. IV at 1592-1593), the district court sent the jury a note confirming that "(a) portion of the count has been omitted, namely, knowingly and intentionally using a communication facility that." C.A. App. IV at 1592. The note was accompanied by a copy of the count that included the omitted language and by a direction that the jury consider the count in its corrected form. Ibid. Count 18 was among the ten counts of unlawful use of a communication facility to facilitate a conspiracy of which the jury convicted petitioner Adair. The jury also requested during deliberations that it be allowed to hear again some of the tape-recorded evidence, including the recordings of the conversations involving petitioner Toomer. C.A. App. IV at 1532. Because some of the tapes had been operated on a special infrared system and had been edited by the operator of the machine so as to exclude objectionable portions, it had been proposed and agreed upon in advance that any replaying would be done in the courtroom, with a government agent again operating the tape recorder, and with the judge, prosecutor, at least some defense counsel, and a court reporter present. C.A. App. IV at 1391-1401. Defense counsel proposed that they have only one of their number present during any replaying sessions, and the court agreed to this procedure. C.A. App. IV at 1395-1397; 1399-1400. The court confirmed its understanding that "on those occasions when we're just coming in for evidence, the defendants are not being brought up." C.A. App. IV at 1524. Counsel for petitioner Adair replied, "That's right," and said he was waiving his client's presence "in all situations." Ibid. No other counsel disagreed or raised any objection. After the jury requested the replaying of the taped conversations involving petitioner Toomer, however, her counsel asked the court to allow his client to be present, explaining for the first time that she had "kind of expressed an interest to me the other day on that," while recognizing that he should have brought it up earlier. C.A. App. IV at 1527-1528. The court denied the request, reasoning that the replaying of the tapes was not a critical stage of the trial, and that the court and counsel were present only "out of an abundance of caution," to ensure that the correct tapes were played and that no other communication to the jury occurred. C.A. App. IV at 1528-1531. 3. On appeal, the court of appeals rejected petitioner Adair's claim that the district court should have dismissed Count 18, ruling that the language omission was "an obvious typographical slip" -- an error of form rather than substance. Pet. App. 1 at 12. The court observed that the omitted language "had appeared correctly in the four other telephone facilitation counts directly preceding count 18," and that the fact that petitioner Adair "was not misled, burdened, or otherwise prejudiced is apparent from his counsel's failure even to remark on the mistake until the jury did." Ibid. Finally, the court noted that even if it was error to correct the count, the error was harmless. Ibid. Both petitioners also raised a challenge to the district court's instruction on the telephone facilitation counts, although they had never previously objected to it. Pet. App. 1 at 10. The most pertinent portion of the instruction provided that: The essential elements of the offense of illegal use of a communication facility, which the government must prove beyond a reasonable doubt, are, first, that the defendant used a communication facility, in this case, a telephone; and, second, that the defendant used the communication facility to facilitate an unlawful conspiracy to distribute and possess with intent to distribute heroin, or to facilitate the unlawful, knowing and intentional distribution of heroin; and, three, that the defendant's use of the communication facility was knowing and intentional. C.A. App. IV at 1508-1509. Petitioners argued that this instruction did not adequately state the government's duty to prove beyond a reasonable doubt that the drug offenses underlying the facilitation charges had actually been committed. Pet. App. 1 at 11. The court of appeals ruled that the instruction was not error, let alone plain error, since it required the jury "to find that use of the telephone actually facilitated (not merely aimed to facilitate) the underlying offenses." Pet. App. 1 at 11. The court noted that "the jury necessarily found beyond a reasonable doubt that the underlying offenses were committed because it convicted some or all of the defendants of those very offenses." Ibid. Finally, the court of appeals rejected petitioner Toomer's claim that the district court's refusal to allow her to be present during the replaying of the tapes had violated her Sixth Amendment right of confrontation, Fifth Amendment due process rights, and Fed. R. Crim. P. 43(a). The court of appeals found that the replaying of the tapes was not a "stage of the trial" implicating either the Confrontation Clause or Rule 43. Pet. App. 1 at 9. Nor was there any due process violation, because petitioner's absence from the replaying of the tapes had no relation to her complete opportunity to defend herself. Ibid. Moreover, the court added, since the replaying took place in the presence of the district judge and counsel for several defendants, including counsel for petitioner Toomer, under an arrangement agreed to by defense counsel, any error was harmless beyond a reasonable doubt. Pet. App. 1 at 9-10. Finding the evidence sufficient to support the convictions, and appellants' other claims similarly unavailing, the court of appeals affirmed all the appellants' convictions. Pet. App. 1 at 13. ARGUMENT 1. Petitioner Adair's contention (No. 89-6943 Pet. 9-14) that the district court's correction of Count 18 constituted an impermissible amendment of the indictment is without merit. As this Court determined in Ex Parte Bain, 121 U.S. 1, 10 (1887), a court may not "change the charging part of an indictment to suit its own notion of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes." But neither should "the guilty * * * escape through mere imperfections of pleading." Hagner v. United States, 285 U.S. 427, 432 (1932). Thus, this Court has ruled that "(u)pon a proceeding after verdict at least, no prejudice being shown, it is enough that the necessary facts appear in any form, or by fair construction can be found within the terms of the indictment." Id. at 433. The courts have therefore long agreed that mistakes of form rather than substance, like the typographical error at issue here, are ordinarily correctable. See, e.g., United States v. Krall, 835 F.2d 711, 714-715 (8th Cir. 1987) (amendment of "obvious misstatement" proper where amendment "clarified and corrected but did not change the substance of the indictment" or prejudice defendant); United States v. Stefan, 784 F.2d 1093, 1101-1102 (11th Cir.), cert. denied, 479 U.S. 1009 (1986) (upholding count that failed to allege intent element where indictment "specifically refers to the statute on which the charge was based," because "practical, rather than technical considerations govern the validity of an indictment"); United States v. Chilcote, 724 F.2d 1498, 1505 (11th Cir.), cert. denied, 467 U.S. 1218 (1984) (variation between statute and language of indictment "is cured by the indictment's reference to the statute"). As the Ninth Circuit observed in United States v. Drew, 722 F.2d 551, 552 (9th Cir. 1983), cert. denied, 467 U.S. 1216 (1984), "'an indictment should be read in its entirety, construed according to common sense and interpreted to include facts which are necessarily implied.'" In this case, petitioner Adair does not dispute that the language omission was, as the court of appeals held (Pet. App. 1 at 12), "an obvious typographical slip." Nor did the mistake have any practical significance: in the context of the thirteen defect-free facilitation counts preceding it and the two defect-free facilitation counts following it, it had gone unnoticed by the court, the government, and all four defense attorneys (including petitioner's), all of whom "(p)resumably, * * * equated Count 18 with the multiple other correctly stated telephone facilitation charges." Ibid. Petitioner Adair cannot seriously contend that under Count 18 he was tried on an offense other than the one for which the grand jury indicted him, since the offense was properly identified in that count as a violation of 21 U.S.C. 843(b) to a jury familiar with the many other facilitation counts. Nor does he assert that he lacked notice of the charge against him. The court of appeals' decision to allow correction of the language in this case is consistent with the holdings of this Court. None of the cases cited by petitioner concerned mere typographical errors. Thus in United States v. Miller, 471 U.S. 130, 142, 143 (1985), the Court confirmed that "(m)ost generally, Bain stands for the proposition that a conviction cannot stand if based on an offense that is different from that alleged in the indictment" (emphasis added). /6/ In Miller itself, this Court upheld a conviction of a fraudulent scheme that the evidence at trial had revealed to be "significantly narrower and more limited" (471 U.S. at 131) than the scheme alleged in the indictment. The Court ruled that this variance had not deprived Miller of his "right to be tried only on offenses for which a grand jury has returned an indictment," observing that the amendment presented no notice-related concerns such as prejudicial surprise, and that the indictment was sufficient to allow Miller to plead it as a bar to subsequent prosecutions. 471 U.S. at 134-135, 138 n.5, 145. In this case, as in Miller, the correction of the indictment did not amount to the impermissible amendment that occurs when an indictment "'is so altered as to charge a different offense from that found by the grand jury.'" Id. at 143 n.7. /7/ Contrary to petitioner Adair's contention (No. 89-6943 Pet. 9-11), the court of appeals' judgment is also consistent with the rulings of other circuits. In United States v. Salinas, 654 F.2d 319 (5th Cir. 1981), overruled on other grounds, United States v. Adamson, 700 F.2d 953, 965 n.18, cert. denied, 464 U.S. 833 (1983), the Fifth Circuit reversed a conviction because the district court had given jury instructions that effectively expanded the factual basis upon which the indictment was founded. /8/ The Fifth Circuit explained that the divergence made it "begin() to look like the appellant was convicted of a crime different from that of which he was accused." Id. at 325. The instant case, of course, presents no such concern. In United States v. Keith, 605 F.2d 462 (9th Cir. 1979), the Ninth Circuit reversed a conviction for involuntary manslaughter where the one-count indictment failed to charge that the defendant had acted with gross negligence and that he knew or should have known that his conduct would endanger others. The Ninth Circuit reasoned that the defendant might not be able to plead the crime as charged as a bar to subsequent prosecution, and that he might have been convicted on the basis of facts not found by, or even presented to, the grand jury. Id. at 464. Here, by contrast, there is no realistic possibility of a future double jeopardy problem, and petitioner cannot seriously contend that despite the many facilitation counts -- all properly drafted -- on which the grand jury indicted him, his conviction under Count 18 might have rested upon facts not found by or presented to that body. See Drew, 722 F.2d at 552-553. /9/ 2. The court of appeals correctly rejected the contention, made by both petitioners (No. 89-6943 Pet. 14-19; No. 89-7687 Pet. 18 n. 9), that the district court's instruction on the telephone facilitation counts denied them due process because it did not state the government's duty to prove beyond a reasonable doubt that the offenses underlying those counts had actually been committed. The language of the district court's instruction itself refutes petitioners' claim. The district court first told the jury that it had to find, "beyond a reasonable doubt" all three elements of the offense: that petitioners had (1) used a communication facility, (2) "to facilitate an unlawful conspiracy to distribute and possess with intent to distribute heroin, or to facilitate the * * * distribution of heroin," (3) knowingly and intentionally. C.A. App. IV at 1508-1509. The court then reiterated that, as to the second element, "you must find beyond a reasonable doubt that the defendant's use of the telephone was to facilitate an unlawful conspiracy to distribute and possess with intent to distribute heroin, or to facilitate the unlawful and knowing and intentional distribution of heroin." C.A. App. IV at 1509. The court thus emphasized the government's burden of proof and spelled out the underlying offense that must have been "facilitated" by use of the telephone. As the court of appeals explained (Pet. App. 1 at 11), the district court "conveyed that, to convict, the jury would have to find that use of the telephone actually facilitated (not merely aimed to facilitate) the underlying offenses." /10/ Furthermore, the underlying offenses were charged in the indictment, and the jury convicted petitioners of those offenses. Since no evidence of other conspiracy or drug offenses was introduced, and since the facilitation instruction immediately followed the conspiracy instruction (C.A. App. IV at 1507-1508) and preceded the instruction on distribution of heroin (C.A. App. IV at 1509), there is no merit to petitioners' contention (see No. 89-6943 Pet. 16) that a rational juror might have convicted them of facilitating "conspiracies or drug offenses that never actually were committed or that were wholly unrelated to the indictment." See United States v. Park, 421 U.S. 658, 674 (1975) (instruction must be viewed in the context of the overall charge and the whole trial). Even if there was error, the court of appeals correctly pointed out (Pet. App. 1 at 11) that these circumstances give no grounds for reversal, especially in light of petitioners' failure to object at trial. /11/ In this regard, petitioners' heavy reliance on United States v. Dotson, 871 F.2d 1318 (6th Cir. 1989), modified on rehearing, 895 F.2d 263 (1990), is misplaced. The district court in Dotson gave a jury instruction similar to the one given here, but the offense underlying the facilitation charge was not charged separately in the indictment. The panel, on rehearing, found the instruction "correct as far as it went" but insufficient to clarify to the jury that commission of the underlying offense must be proved beyond a reasonable doubt. Dotson, 895 F.2d at 264. In so doing, the panel explicitly noted that its conclusion applied only to those cases in which the underlying offense had not been separately charged, reasoning that: Where separate charges exist on the underlying crimes, of course, the jury would be separately instructed on the necessity of finding the essential elements of those crimes beyond a reasonable doubt. Jury confusion would thus be less likely to result from the telephone facilitation instruction given in this case. Id. at 265. The Dotson court then expressly declined to reach the question presented in the instant case. /12/ 3. Finally, petitioner Toomer renews her claim (No. 89-7687 Pet. 19-36) that her absence from the replaying of the tape-recorded evidence violated her rights under the Fifth and Sixth Amendments and under Fed. R. Crim. P. 43. Her claim is without merit. /13/ Petitioner's due process rights were not affected by her absence because, as the court of appeals correctly noted (Pet. App. 1 at 9), her presence at the replaying of the tapes would have had no substantial relation to the "fulness of (her) opportunity to defend against the charge." United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934)). In Snyder v. Massachusetts, the Court held that the defendant's due process right was not violated by his absence from a view of the crime scene by the jury, where both the prosecutor and defense counsel were present, as well as the judge and court reporter. In this situation, the Court held, there was nothing the defendant could have done if he were there; the only concern might have been to ensure that the jury was taken to the right place. He could inquire of court and counsel, or question at trial the bailiffs who accompanied the jury, to ascertain that fact and to review the condition of the place. 291 U.S. at 108; see also Kentucky v. Stincer, 482 U.S. 730, 745-747 (1987); Gagnon, supra. Similarly, in this case there was no showing that petitioner could have done anything or gained anything by her presence at the tape replaying. The district court specified beforehand that there would be no unnecessary communication with the jury by anyone present, and the record confirms that there were no improper communications. C.A. App. IV at 1512, 1530-1534, 1536, 1543-1544, 1546. The court and counsel, including counsel for petitioner, were present to ensure that only the proper portions of the correct tapes were played; no objections were made that any aspect of the replaying procedure was improperly performed. Nor was there any evidence that petitioner or any of the other defendants had any information or knowledge that could have materially assisted their attorneys in ensuring the absence of improper communications or mistakes in the tape replaying. Petitioner thus suffered no due process violation by virtue of her absence. The court of appeals was also correct in holding that the replaying of the tapes did not implicate petitioner Toomer's Sixth Amendment right of confrontation. "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, No. 89-478, slip op. 6 (June 27, 1990); see also, e.g., Stincer, 482 U.S. at 736-739. It guards the right of a defendant personally to examine and cross-examine a witness against him, the obligation of the witness to testify under oath, and the ability of the jury to observe the demeanor of the witness. Craig, slip op. 6-7; see also Stincer, 482 U.S. at 740, 744 n.17 (1987). These rights were not violated in this case, because the defendant had already had ample opportunity to challenge the recorded evidence during the trial and to object to potentially excludable material on the tapes. See, e.g., Stincer, supra (no Confrontation Clause problem because questions asked witness out of presence of defendant could be repeated at trial). The court of appeals also properly ruled that Rule 43(a) was not violated because the tape replaying was not a "stage of the trial" within the meaning of that provision. As the district court pointed out (C.A. App. IV at 1528, 1531), the tape replaying was actually a part of jury deliberations; the only reason for conducting the review in the courtroom and in the presence of the court and counsel was that operation of special equipment was required and precautions were necessary to assure that the tapes were replayed correctly. The procedure was thus essentially the ministerial activity of transmitting to the jury evidence that it had already heard, and the court of appeals correctly likened it to the simple conveyance of exhibits to the jury, which has been held not to implicate Rule 43. Pet. App. 1 at 9; Dallago v. United States, 427 F.2d 546, 553 (D.C. Cir. 1969); accord United States v. De Hernandez, 745 F.2d 1305, 1308 (10th Cir. 1984); see also United States v. Schor, 418 F.2d 26, 30-31 (2d Cir. 1969) (transcript of testimony). The Ninth Circuit has nevertheless held that replaying a tape to the jury is a "stage of the trial" for purposes of Rule 43(a). See United States v. Brown, 832 F.2d 128, 130 (1987); United States v. Kupau, 781 F.2d 740, 743, cert. denied, 479 U.S. 823 (1986). However, it has established that any error is susceptible to "plain" or "harmless error" analysis. In Kupau, the Ninth Circuit found no plain error despite the fact that a government agent who had sat at the government's counsel table twice replayed tape-recorded evidence, the agent was alone with the jury, and no record was made of the procedure. In so concluding, the court weighed the cautionary instruction given by the district court to the jury that they should not speak to the agent, the court's clearing of the courtroom to prevent outside influences, and the absence of any suggestion that extraneous matters came before the jury. 781 F.2d at 741-743. In Brown, the Ninth Circuit reversed a conviction under the harmless error standard where a government agent who had sat at the government's counsel table repeatedly replayed tapes for the jury while he was alone with them, no notice was given to the defense of the jury's request, no defendant or defense attorney was present, and no record had been made of the proceeding. 832 F.2d at 129-130. The Brown court so ruled because the government agent was not "the sort of neutral observer * * * whose uncorroborated affidavit should convince us beyond a reasonable doubt that the Rule 43 violation was harmless." 832 F.2d at 130. This case contains precisely the type of assurance required by the Ninth Circuit that no prejudicial error occurred. There was ample advance notice and agreement by all counsel to the proposed procedure; the judge, court reporter, and counsel for both sides (including counsel for petitioner) were present; the judge instructed the jury that this was a period during which "(n)o comment will be made with respect to the tapes by the Court or by counsel" (C.A. App. IV at 1512); a transcript of the proceeding was made; and there is no claim that any improper material or comments were presented to the jury. Because the Ninth Circuit would find harmless error in this case, the conflict as to whether the replaying of taped evidence during jury deliberations is a stage of the trial under Rule 43 is not presented on the facts of this case. /14/ The court of appeals in this case, after considering the same types of factors as those considered by the Ninth Circuit, determined that even if an error had occurred, it was harmless. See Pet. App. 1 at 10 (citing Kupau, 781 F.2d at 743). Petitioner Toomer attacks (No. 89-7687 Pet. 26-27) this standard, contending that only if the evidence possibly affected by a Confrontation Clause error is excluded can a finding of no prejudice be made. The premise of petitioner's argument -- that the type of harmless error analysis identified in Coy v. Iowa, 487 U.S. 1012, 1021-1022 (1988), must apply here -- is faulty. Coy was a "face-to-face confrontation" case, concerning the right of a defendant to confront his accuser because of the possibility that such confrontation might affect the very testimony given by the accuser. Id. at 1019-1020. /15/ In the circumstances of that case, it was logical to require an exclusion of evidence untested by confrontation. The Court nowhere suggested, however, that such a method was appropriate where other types of Confrontation Clause errors have occurred. In all cases, the ultimate inquiry instead remains whether the error had an effect on the central factual question of the defendant's guilt or innocence. Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). Thus in Delaware v. Van Arsdall, for example, where the error was the denial of the right to cross-examine a prosecution witness on the question of bias, the Court stated that the correct harmless error inquiry was "whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Id. at 684 (inquiry depends on multiple factors including, inter alia, importance of witness's testimony, whether testimony was cumulative, presence or absence of evidence corroborating or contradicting testimony, and overall strength of prosecution's case). Accordingly, where a defendant is absent from a portion of the trial, courts generally ask whether, in the circumstances of the particular case, the defendant's presence resulted in "any reasonable possibility of prejudice." See, e.g., Fontanez, 878 F.2d at 37-38; Hall v. Wainwright, 805 F.2d 945, 947-948 (11th Cir. 1986), cert. denied, 484 U.S. 905 (1987); see also Henderson v. Lane, 613 F.2d 175, 179 (7th Cir.) (claim that defendant's absence violated 14th Amendment), cert. denied, 446 U.S. 986 (1980). /16/ Here, petitioner's presence could have served only to ensure that the correct evidence was reviewed and no extraneous material or other influence was conveyed to the jury. Since the court, defense counsel, and a court reporter were all present during this procedure, and from all accounts nothing improper occurred, it was appropriate for the court and consistent with the practice of the circuits to conclude that this procedure was correctly executed and no harm was done to petitioner's defense. /17/ CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /18/ EDWARD S.G. DENNIS, JR. Assistant Attorney General VICKI S. MARANI KATHLEEN A. FELTON Attorneys JULY 1990 /1/ "Pet. App." refers to the Appendix to the Petition in No. 89-6943. /2/ Petitioners were both acquitted on another telephone facilitation count. /3/ Adair was sentenced to five to fifteen years' imprisonment and a fine of $100,000 on the conspiracy count; concurrent terms of five to fifteen years on each of the possession and distribution counts; concurrent terms of one to four years on each telephone facilitation count; and concurrent terms of one to four years on the interstate travel counts, with each set of concurrent sentences to run consecutively to one another. /4/ Petitioners were tried with four other co-defendants, who were convicted of conspiracy and various other offenses charged in the 24-count indictment. See Pet. App. 1 at 2; Gov't C.A. Br. 2-3. Two of the four co-defendants appealed their convictions along with petitioners, and all the convictions were affirmed. Only Adair and Toomer have filed petitions for certiorari. /5/ On June 27, 1986, she and Adair talked about when he was going to drop off her "things." Gov't C.A. Br. 42. Later the same day, Toomer telephoned again and Adair agreed to give her "three more of (sic) things" that were "much stronger," so she would get "rid of them" much more quickly. Adair asked if she had "that money to pay on the light bill," and Toomer replied that she did. They also discussed how much she would pay, and Adair decided that he would wait until Monday, since he was giving her "three more." Toomer could "have the profit off of it" and pay him $150 the next Monday. GX 43a; C.A.App. II at 498-501. On July 2, 1986, Adair told Toomer she could pick up her "things" that night. Toomer remarked that she did not like to deal with people she did not know "'cause I don't know who the police or nothing like that." Adair reassured her that it was the beginning of the month and near a holiday, so people would have money to spend; she "shouldn't have no problem." GX 46a; C.A. App. II at 503-504. On July 5, Toomer called Adair and told him she had not finished her "thing"; in fact, she had not even finished "the light bill part of the money." Adair said he had "some more watermelons"; Toomer agreed to try to sell some, and they arranged for her to come and pick them up. Toomer remarked that "Tony" (Mosuro) (one of Adair's associates) had called, and Adair said he would call him back. GX 51a; C.A. App. II at 506-508. There was also evidence of two conversations which took place on June 19, 1986. In these calls, Adair referred to a "dope deal," and complained about some other sellers, including "Tommy" who wanted "two of them things" but who "ain't even paid the light bill," and another who "claimed she lost those things," leading him to conclude that "they ripping us off." GX 17a, 18a; C.A. App. II at 454, 456. /6/ The Court described Stirone v. United States, 361 U.S. 212, 217 (1960) -- in which this Court found that the evidence at trial had in effect impermissibly "amended" the indictment by broadening the possible bases for conviction -- as "the most important reaffirmation" of this principle. Miller, 471 U.S. at 142, 143. /7/ Petitioner's reliance on United States v. Norris, 281 U.S. 619 (1930), and Russell v. United States, 369 U.S. 749, 770 (1962), is similarly misplaced. In Norris, the Court rejected the proposition that, where an indictment was "sufficient in form and substance" (281 U.S. at 621) and a defendant had already entered a plea of nolo contendere, the submission of a set of stipulated facts for sentencing purposes impermissibly "add(ed) particulars" (id. at 622) to the indictment. The indictment at issue in Russell failed to set forth the facts in enough detail to give the defendant notice of the charge against him or to allow a court to determine whether the facts were sufficient in law to support the indictment. 369 U.S. at 764, 766, 768-769. Indeed, in Russell, the Court distinguished the factual omission there from "'minor and technical deficiencies which did not prejudice the accused'" and for which "'(c)onvictions are no longer reversed.'" 369 U.S. at 763. Petitioner Adair does not claim that he lacked notice, nor that the typographical error here handicapped the courts in reviewing the evidence. /8/ The indictment charged that the defendant had aided and abetted a specific, named individual in misapplying bank funds; the trial judge instructed the jury that it could convict if it found that the principal had been any officer, director, agent, or employee of the bank. /9/ In the Eighth and Eleventh Circuit cases cited by petitioner, the courts of appeals rejected claims that the indictments had been impermissibly amended. See United States v. Begnaud, 783 F.2d 144 (8th Cir. 1986) (jury instructions, taken as a whole, did not improperly expand charging terms); United States v. Johnson, 713 F.2d 633 (11th Cir. 1983), cert. denied, 465 U.S. 1081 (1984) (jury instructions did not impermissibly modify charging terms despite government vacillation as to theory of crime during trial). In neither case did the court disapprove amendment of a technical or typographical error. /10/ Indeed, the district court's language (C.A. App. IV at 1508) -- "used the communication facility to facilitate an unlawful (drug) conspiracy" and "to facilitate the unlawful, knowing and intentional distribution of heroin" -- left even less room for confusion on this point than does the language of the statute itself, i.e., "use any communication facility in committing or in causing or facilitating the commission of any * * * felony." 21 U.S.C. 843(b). /11/ Avoiding mention of the plain error standard that applies here, petitioners misplace their reliance on Cabana v. Bullock, 474 U.S. 376, 384 (1986). See No. 89-6943 Pet. 15. As this Court has since made clear, convictions under erroneous instructions may be salvaged if the error is harmless. See Pope v. Illinois, 481 U.S. 497, 503 n.7 (1987). /12/ In any event, the Dotson court ruled that the "minor" instructional error committed by the district court was subject to a harmless error analysis. 895 F.2d at 265. And, the court found the error innocuous in that case, given the evidenc presented by the government on the underlying offense. Here, of course, the jury's own verdicts on the underlying offenses demonstrated that the jury had found them to have been committed beyond a reasonable doubt. And, since petitioners failed to object to the instructions at trial, the error in the instructions, if any there was, is subject only to a "plain error" analysis. Thus, even if the Sixth Circuit were to determine that the instructions in this case were ambiguous (despite the existence of separate charges on the underlying offenses), it would affirm the convictions a fortiori under the reasoning set forth in Dotson. /13/ Petitioner Toomer claims (No. 89-7687 Pet. 29-31) that the court of appeals ruled that she waived her presence at the tape replaying sessions. In fact, the court of appeals did not rest its holding on a finding of waiver by petitioner Toomer but instead concluded that no violation had occurred or that, if any had occurred, it had not prejudicially harmed petitioner. See Pet. App. 1 at 10. /14/ Contrary to petitioner's contention (No. 89-7687 Pet. 21-22), the result in this case does not conflict with United States v. Fontanez, 878 F.2d 33 (2d Cir. 1989), or United States v. Latham, 874 F.2d 852 (1st Cir. 1989). In Fontanez, the defendant was absent not only during a rereading of some of the testimony, but also during the giving of an Allen charge after the jury had announced it was deadlocked (see Allen v. United States, 164 U.S. 492 (1896)). And in Latham, the court of appeals determined that the defendant, who was absent during the middle of the trial, had not voluntarily waived his right to be present. /15/ Coy involved the prosecution of a defendant for sexually assaulting two children; the children gave their trial testimony from behind a screen so that they could not see, and did not need to confront, the defendant during the trial. /16/ Petitioner Toomer asserts (No. 89-7687 Pet. 27) that the court of appeals erred in observing that the government did not bear the burden of "demonstrating that no untoward communications occurred." See Pet. App. 1 at 10 n.5. The court of appeals' statement appears merely to be a response to petitioner Toomer's argument on appeal (C.A. Br. 17) that the transcript made when the tape was replayed might not accurately reflect all appearances and discussions. There is no indication that the court was making a comment about the appropriate harmless error standard; it simply concluded that the record was sufficiently reliable to show that no prejudice had occurred. /17/ Petitioner Toomer lastly challenges (No. 89-7687 Pet. 20, 32-36) as a "subsidiary question()" the sufficiency of the evidence to support her convictions. The court of appeals has already reviewed the evidence. It found (Pet. App. 1 at 2, 6-7) that petitioner Adair was the "central actor" in a structured drug distribution scheme in which petitioner Toomer had a regular role. The conversations reviewed above (at n.5) demonstrate petitioner Toomer's knowledge of the scheme, of other actors (including other sellers and "Tony," Adair's associate) in it, and all members' payment obligations to Adair. See also Pet. App. 1 at 6-7. Petitioner Toomer herself recognizes (No. 89-7687 Pet. 20) that her sufficiency claim, "standing alone," does not warrant review. We agree that it is not an appropriate one for review by this Court. See Hamling v. United States, 418 U.S. 87, 124 (1974). /18/ The Solicitor General is disqualified in this case.