JUAN HERRERO AND ARMANDO N. MARTINEZ, PETITIONERS V. UNITED STATES OF AMERICA No. 89-6990 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A4-A36) is reported at 893 F.2d 1512. JURISDICTION The judgment of the court of appeals was entered on January 16, 1990. The petition for a writ of certiorari was filed on March 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court's order prohibiting petitioner Herrero's counsel from revealing to his client information about a confidential government informant violated Herrero's Sixth Amendment right to effective assistance of counsel. 2. Whether the presence of a map in the jury room during the jury's deliberations required a mistrial. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Wisonsin, petitioners were convicted of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1) and 846, and of one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1). Petitioner Herrero was also convicted of two additional counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1). Petitioner Martinez was also convicted of two counts of interstate travel to promote drug trafficking, in violation of 18 U.S.C. 1952(a)(3), and of one additional count of possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1). /1/ The district court sentenced Herrero to 50 years' imprisonment and fined him $500,000. The court sentenced Martinez to five years' imprisonment. The court of appeals affirmed. Pet. App. A4-A36. 1. The evidence at trial showed that petitioners were members of the Estevez drug conspiracy, based on Miami, Florida, which was responsible for the distribution of large amounts of cocaine in the Milwaukee, Wisconsin area in 1985 and 1986. Members of the conspiracy purchased cocaine in Miami, transported it to Milwaukee, and then returned the proceeds from the sales to Miami. The evidence at trial, including statements of Estevez himself reported by both a former girlfriend and an associate, showed that Herrero, who used the name "Gallego," was a supplier of cocaine to Estevez's organization. Specifically, evidence was introduced to show that in March 1986, Herrero had made a delivery of cocaine to Estevez at Estevez's house on 95th Street near Miami. In mid-June 1986, Herrero again came to the 95th Street house with a kilogram of cocaine, which Estevez sampled. Shortly thereafter, Estevez paid Herrero $500,000 in cash. Herrero's fingerprints were found on three one-kilogram packages of cocaine that were discovered in a house Estevez had rented in Oak Creek, Wisconsin, a suburb of Milwaukee. Pet. App. A8-A9. The evidence at trial showed that petitioner Martinez transported cocaine from Miami to Milwaukee and returned the proceeds of the sale of the drugs to Miami. In April 1986, Martinez drove from Miami to Milwaukee, transporting 10 to 12 kilograms of cocaine that a confederate of Estevez had purchased from "Gallego" and returning a shipment of cash to Miami. In May and June 1986, Martinez drove to Milwaukee with additional shipments of cocaine, receiving $5,000 for each trip. Pet. App. A9-A10. 2. a. At Herrero's detention hearing, an FBI agent was asked a question that elicited a government objection and a request for a sidebar conference. During the conference, the government disclosed both the identity of a confidential informant and statements the informant had made about Herrero's participation in the conspiracy. Pet. App. A16. At the government's request, the court issued a protective order forbidding Herrero's counsel to reveal to his client the matters discussed at sidebar, including in particular the fact and substance of the government's interview with the informant. Pet. App. A16-A17. b. On the final day of the jury's deliberations, a bailiff was making coffee in the jury room when he heard jurors mention the word "Kendall," which was the name of a district near Miami where the 95th Street house, as well as another property that had been purchased by Estevez with the proceeds of drug sales, was located. Upon investigation, the bailiff found that one of the jurors had a map of the greater Miami metropolitan area. The bailiff removed the map and took the names of the jurors who were in the room. The jurors told the bailiff that they were looking at the map of the Miami area to find out where Kendall was. Pet. App. A30. After the jury returned its verdict, the district court questioned the four jurors who had seen the map. All of the jurors assured the court that the map had not affected their decisions. The defendants moved for a mistrial. Pet. App. A30-A31. The district court denied the motion, stating (Pet. App. A31): Let the record show that the Court has considered this since it became aware of it. I am satisfied that this incident while it was untoward, was inconsequential in terms of the deliberations of the jury. I am satisfied that it was not something that would have affected their decision one way or another, and we have the statements of all of them that it did not. I do not believe that it rises to the height of a defect that would cause this court to abort the process. And I feel that I should and I do herewith at this time deny the motion for a mistrial. 3. The court of appeals affirmed. Acknowledging that the confidential informant privilege is waived "once the identity of the informer has been disclosed to those who would have cause to resent the communication" (Roviaro v. United States, 353 U.S. 53, 60 (1957)), the court nevertheless rejected Herrero's argument that the privilege had been waived when the government disclosed the informant's identity to Herrero's counsel at sidebar. The court explained that it was the defendant, not his legal representative, who would have reason "to resent the (informant's) communication. Pet. App. A17-A18. The court also dismissed Herrero's argument that the protective order had deprived him of due process of law and the effective assistance of counsel; the informant did not testify at Herrero's trial, although Herrero and his counsel had been free to call any individual -- including the informant -- as a witness if they so desired. Id. at A18. Finally, the court rejected Herrero's claim that due process required disclosure of the informant's statement and identity. Balancing "the public interest in protecting the flow of information against the individual's right to prepare his defense" (Roviaro, 353 U.S. at 62), the court found that because neither the government nor Herrero called the informant as a witness, any information possessed by the informant was either irrelevant or damaging to Herrero. Pet. App. A18-A19. Accordingly, the court concluded that Herrero's interest in disclosure did not outweigh "the public interest in protecting the flow of information." Id. at A19. In its review of the issue raised by the presence of the map in the jury room, the court of appeals relied on United States v. Weisman, 736 F.2d 421, 424 (7th Cir.), cert. denied, 469 U.S. 983 (1984), which held that a jury's exposure to extrinsic evidence requires a new trial only when there is a reasonable possibility that the material affected the jury's verdict, and on United States v. Key, 859 F.2d 1257, 1264 (7th Cir. 1988), which held that a trial judge's finding of a lack of prejudice is reviewed only for an abuse of discretion. Finding (Pet. App. A32-A33) that (1) the district court had properly conducted a prompt inquiry into the possibility of prejudice, (2) the jurors had not engaged in any significant discussion of the map, (3) the map, which appeared only at the end of the trial, could not have caused any juror to prejudge the case before hearing all the evidence, and (4) the evidence of the defendants' guilt was overwhelming, the court of appeals ruled that the district court had properly exercised its discretion in finding that "there was no reasonable possibility that the presence of the map in the jury room affected the jury's verdict." Id. at A33. ARGUMENT Petitioner Herrero renews his contention (Pet. 7-13) that the district court's protective order, which prohibited his counsel from revealing to him the name of a confidential informant and the substance of the informant's interview with the government, violated his Sixth Amendment rights. In addition, both petitioners renew their contention (Pet. 13-17) that the brief presence in the jury room of a map that was not in evidence at trial required the declaration of a mistrial. The court of appeals properly rejected these contentions. 1. In Roviaro v. United States, 353 U.S. 53, 59 (1957), this Court described the confidential informant's privilege as "in reality the Government's privilege to withhold from disclosure the identify of persons who furnish information of violations of law to officers charged with enforcement of that law." The Court discerned three circumstances in which the scope of the privilege is qualified: (1) when "disclosure of the contents of a communication will not tend to reveal the identity of an informer"; (2) when the informant's identity has been revealed to "those who would have cause to resent the (informant's) communication"; and (3) when disclosure of the informant's identity or the contents of a communication is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." 353 U.S. at 60-61. Determinations of when disclosure is proper require "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense * * * (in) the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Id. at 62. "The privilege will not yield to permit a mere fishing expedition, nor upon bare speculation that the information may possibly prove useful." Dole v. Local 1942, IBEW, 870 F.2d 368, 373 (7th Cir. 1989) (citation omitted); see United States v. Buffington, 815 F.2d 1292, 1299 (9th Cir. 1987) (mere suspicion that information will prove helpful is insufficient to require disclosure). Herrero's right, if any, to discover the informant's identity and the contents of his communication must be based not on any direct claim to be informed of the information, but on the ground that disclosure by the government of the information to Herrero's counsel -- but not to Herrero -- either amounted to a waiver of the Roviaro privilege or otherwise violated Herrero's constitutional rights. For it is clear that, if the government had not revealed the information to Herrero's counsel, Herrero would not have been entitled to disclosure of the informant's identity or the contents of his communication. Surely the bare fact that the informant provided information to the government concerning Herrero's involvement in the Estevez conspiracy is irrelevant to the issue of whether Herrero was guilty of the crimes charged in the indictment. Moreover, although both the government and Herrero were free to call the informant as a trial witness, neither side chose to call him. Accordingly, the court of appeals correctly concluded that neither the informant's identity nor any information in the informant's possession was shown to be "relevant and helpful" (Roviaro, 353 U.S. at 60) to either the government's case or Herrero's. See United States v. Long, 533 F.2d 505, 508 (9th Cir.) (defendant not entitled to informant's testimony when that testimony would be either cumulative or adverse to defendant), cert. denied, 429 U.S. 829 (1976). Disclosure of the information to Herrero's counsel did not waive the informant's privilege. The court of appeals accurately observed that Herrero, not his counsel, would have had reason to resent the informant's communication with the government (cf. Roviaro, 353 U.S. at 60 & n.8), and the protective order was therefore necessary to prevent the waiver that would have occurred if Herrero's counsel had shared this windfall information with his client. See United States v. Long, 533 F.2d at 508 (privilege continued to serve purpose despite transmittal of informant's name to defense counsel); United States v. Anderson, 509 F.2d 724, 729-730 (9th Cir. 1974), cert. denied, 420 U.S. 910 (1975) (in striking Roviaro balance, trial court may permit defense counsel to participate in in camera proceeding, but then can and should, where appropriate, place defense counsel under enforceable orders against unwarranted disclosure of what he has heard). Nor did the district court's decision not to permit disclosure of the information to Herrero violate Herrero's due process rights or his Sixth Amendment right to the effective assistance of counsel. Herrero asserts (Pet. 11-12) that the protective order impaired his ability to confer effectively with his counsel about two decisions -- whether to testify at trial and whether to plead guilty. This assertion is without merit. The district court's order contained no restriction on the discovery to which Herrero was entitled, Herrero's right to call whatever witnesses he chose, or Herrero's right vigorously to cross-examine any witnesses called by the government. Counsel was thus free, while remaining comfortably within the terms of the protective order, to discuss exhaustively with Herrero the potential impact of the informant's testimony as a prospective witness during the government's case-in-chief and on rebuttal. He was simply forbidden to tell Herrero that the informant had provided information to the government. In short, Herrero's assertion that his ability to decide whether to plead guilty or to testify was impaired rests upon "bare speculation" to which "(t)he privilege will not yield." Dole v. Local 1942, 870 F.2d at 373. Herrero is mistaken when he claims that the decision below is in conflict with United States v. Eniola, 893 F.2d 383 (D.C. Cir. 1990). The protective order at issue in Eniola prevented the defendant from developing a potentially viable entrapment defense, and the decision was clearly limited to the entrapment context. See, e.g., 893 F.2d at 387 ("While we recognize that this sixth amendment value will not always trump the informant's privilege, where defense counsel has presented an arguable scenario for entrapment, his ability to pursue this course cannot be hemmed in by the privilege."); id. at 388 ("A defendant cannot claim a sixth amendment override of the informant's privilege where the record clearly demonstrates * * * that the informant had no role in bringing a defendant into the criminal endeavor."). Indeed, in Eniola itself, the court rejected a codefendant's Sixth Amendment claim because "he did not present an arguable scenario in which the government could have played a role in entrapping him." 893 F.2d at 384. Far from announcing the per se rule that Herrero perceives in its decision, the Eniola court plainly based its decision on the fact that the nature of the government's investigation of the defendant is a crucial element in an entrapment defense, and that the identity of individuals working in cooperation with the government may therefore be crucial in the evaluation and development of such a defense. In the present case, however, Herrero has made no showing that the protective order prevented him from developing any potentially viable defense, let alone the entrapment defense at issue in Eniola. Because no viable entrapment defense is asserted, the identity of the individuals who may have been providing information to the government would be of no assistance to Herrero, as it was of no assistance to the codefendant in Eniola. See United States v. Hargrove, 647 F.2d 411, 414 (4th Cir. 1981) (where testimony precluded entrapment defense, refusal to disclose informant's name and address did not violate defendant's right to effective assistance of counsel). /2/ 2. Petitioners contend (Pet. 13-17) that the brief presence in the jury room of a map of the greater Miami metropolitan area required that a mistrial be declared. This fact-bound contention does not warrant further review. The record reveals that, consistent with Fed. R. Evid. 606(b), /3/ the district court conducted a timely examination of the four jurors who had seen the map. /4/ The juror who had brought the map to court said that he was merely pointing out the geographical relationship between Kendall and Miami, and stated that the map had not changed his decision. A second juror originally thought that the map related to Milwaukee, then saw some areas of Miami on it, but did not use it. A third juror merely glanced at the map on the way to the bathroom. The fourth juror said that the map had been removed from the jury room before the jurors had had an opportunity to discuss it. All four jurors assured the district court that the map had not affected their decisions on petitioners' guilt or innocence. Pet. App. A30-A31. In these circumstances, the district court's determination of prejudice, based on its observation of the jurors' demeanor, is entitled to great deference. See United States v. Key, 859 F.2d 1257, 1264 (7th Cir. 1988). The court of appeals therefore correctly concluded that the district court had not abused its discretion when it denied petitioners' motion for a mistrial. The trial judge's timely inquiry into the possibility of prejudice, the bailiff's prompt removal of the map from the jury room, the absence of any significant discussion of the map, and the overwhelming evidence of petitioners' guilt obviated any reasonable possibility that the map had affected the jury's verdict. Cf. United States v. Key, 859 F.2d at 1265 (no reasonable possibility of prejudice; in fraud prosecution, some jurors had learned that defendant's co-defendant spouse had been convicted of tax evasion); United States v. Weisman, 736 F.2d 421, 424 (7th Cir.) (no prejudice found; jurors exposed to newspaper article reporting guilty plea of defendant's codefendant son), cert. denied, 469 U.S. 983 (1984); United States v. Savage, 701 F.2d 867, 870-871 (11th Cir. 1983) (no reasonable possibility of prejudice despite presence of antimarijuana magazine in jury room during trial for possession of marijuana with intent to distribute). 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 THOMAS M. GANNON Attorney MAY 1990 /1/ Martinez was found not guilty of one count of interstate travel to promote drug trafficking, in violation of 18 U.S.C. 1952(a)(3), and of one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1). Co-defendant Jose Guillermo Haro was convicted of conspiracy with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1) and 846, and was sentenced to 12 years' imprisonment and fined $50,000. /2/ Fed. R. Crim. P. 16(d)(1) provides additional support for the district court's decision to deny disclosure and issue the protective order. In relevant part, the rule provides that "(u)pon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate." This subsection confers "vast" discretion on the district court. C. Wright, Federal Practice and Procedure: Criminal 2d Section 258, at 114 (1982). The Advisory Committee Note to the subsection specifically contemplates the use of protective orders where a witness would be subject to harm if his identity were revealed. See Will v. United States, 389 U.S. 90, 101 (1967). /3/ In relevant part, Fed. R. Evid. 606(b) provides that "a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention." /4/ While petitioners challenge the timing of the district court's inquiry into the map's possibly prejudicial effect (see Pet. 16), they did not make that challenge in either the district court or the court of appeals, and the latter correctly held (Pet. App. A32) that they had waived any objection to the timing of the inquiry. In any event, as the court of appeals also recognized (id.), in light of the overwhelming evidence against petitioners the timing of the inquiry did not rise to the level of plain error. See Fed. R. Crim. P. 52(b).