RAYMOND M. GRAY, PETITIONER V. UNITED STATES OF AMERICA No. 89-1383 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 Ninth Circuit Brief For The United States In Opposition TABLE OF CONTENTS Questions Presented Opinion below Jurisdiction Statement Argument Conclusion OPINION BELOW The opinion of the court of appeals (Pet. App. 1-19) is reported at 876 F.2d 1411. JURISDICTION The judgment of the court of appeals was entered on June 5, 1989. A petition for rehearing was denied on December 28, 1989. Pet. App. 20. The petition for a writ of certiorari was filed on February 28, 1990. The jurisdiction of the Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, in this prosecution for failing to appear before the court for sentencing, the attorney-client privilege barred petitioner's former attorney from testifying that he had advised petitioner of his sentencing date and his obligation to appear. 2. Whether petitioner's conviction must be reversed on the ground that the case was reassigned to another judge in violation of the local district court rules. 3. Whether the prosecutor, in rebuttal summation, improperly referred to petitioner's invocation of his Fifth Amendment privilege against compulsory self-incrimination. STATEMENT After a jury trial in the United States District Court for the Western District of Washington, petitioner was convicted on one count of failing to appear before the court for sentencing, in violation of 18 U.S.C. 3146(a) and (b). He was sentenced to a term of five years' imprisonment, to be served consecutively to the term of 15 years' imprisonment petitioner was then serving for the underlying bank fraud conviction. He was also fined $250,000. The court of appeals affirmed petitioner's conviction, but remanded for resentencing under the Sentencing Guidelines. Pet. App. 1-19. 1. In July 1986, petitioner was indicted in the Western District of Washington on one count of conspiracy to commit a series of bank fraud offenses and several counts of substantive fraud offenses. /1/ Those charges arose out of petitioner's activities as Chairman of the Board of Directors of Home Savings and Loan Association, in Seattle. On August 7, 1986, petitioner was arraigned and, after executing an appearance bond, released on his own recognizance. The bond provided that petitioner must appear for trial and all other proceedings in the case. Pet. App. 2-3. Petitioner's trial began in early March 1987. After the close of the presentation of evidence on May 28, 1987, petitioner executed a "handwritten waiver of appearance statement" prepared by his trial counsel, Kent Robison. Pet. App. 3. That waiver stated: "I, Raymond M. Gray, do hereby waive my presence at subsequent proceedings in this matter, specifically the return of the verdict." Ibid. On June 3, the jury found petitioner guilty on all counts. After several delays, the district court scheduled petitioner's sentencing for September 25, 1987. Ibid. Petitioner did not appear for sentencing on September 25. As a result, the district court issued a bench warrant for petitioner's arrest. On December 8, 1987, the Mexican Federal Judicial Police informed the United States Marshal's Service that petitioner was being detained at the Tijuana International Airport, in Tijuana, Mexico. That same day, Deputy United States Marshal Enrique Perez met the Mexican authorities at San Ysidro, California, where he arrested petitioner. Petitioner was sentenced on the outstanding bank fraud conviction and later indicted on one count of failing to appear before the court for sentencing, in violation of 18 U.S.C. 3146(a) and (b). Pet. App. 3. 2. Petitioner's case was initially assigned to Judge John C. Coughenour. On February 4, 1988, Judge Coughenour reassigned the case to Chief Judge Barbara J. Rothstein. Judge Coughenour had not notified the parties in advance and did not explain the reassignment. On March 18, Chief Judge Rothstein reassigned the case, without notice or explanation, to Judge Jack E. Tanner. Pet. App. 3. On March 29, petitioner filed a pretrial motion requesting that Judge Tanner reassign the case back to Judge Coughenour or, in the alternative, that he return the case to the Clerk of the District Court for reassignment according to the local district court rules. After a brief hearing, Judge Tanner denied the motion. Id. at 4. 3. At trial, petitioner's former attorney, Kent Robison, testified that during the week preceding September 25, 1987, he told petitioner of the September 25 sentencing date and reminded petitioner that he must attend. Robison also testified that he repeated his instructions to petitioner the day before the scheduled sentencing. Pet. App. 4. During rebuttal argument, the prosecutor, in explaining to the jury why the government is not required to prove guilt beyond all possible doubt, stated: "(U)nless you were (petitioner), unless you were inside his mind on the night of the 24th, the day of the 25th, unless you were there inside his mind you would never know beyond all possible doubt what was going on in his mind." Pet. App. 11-12. Petitioner moved for a mistrial, contending that that comment improperly called attention to his decision not to take the stand. The district court denied the motion. Id. at 10. 4. The court of appeals affirmed petitioner's conviction. Pet. App. 1-19. /2/ In the court of appeals, petitioner contended that his case was reassigned in violation of the local district court rules. /3/ Specifically, petitioner argued that each reassignment violated General Rule 8(a), as the Clerk had not directed the transfers. In addition, petitioner claimed that the first reassignment was invalid because only the Chief Judge -- and not Judge Coughenour -- had the authority to take such action under Paragraph 14 of the General Order. And he claimed that the second reassignment was improper because Chief Judge Rothstein did not state that she was exercising her authority under that provision, which "only authorizes system-wide changes in the assignment process." Pet. 6-7. The court of appeals found that petitioner had not objected to the first reassignment until after the case had been reassigned for the second time. The court therefore held that petitioner had "waived his challenge to the first reassignment." Pet. App. 6. The court then rejected petitioner's challenge to the second reassignment, concluding that the "scope of paragraph 14 * * * is simply not limited by the restrictive language which (petitioner) has interposed." Id. at 7. /4/ Moreover, the court determined that the language of Paragraph 14 "does not require the Chief Judge to indicate an intent to act pursuant to the General Order." Ibid. Noting that petitioner did "not allege that the reassignment to Judge Tanner was for an impermissible reason," the court held that "the reassignment * * * (was) permissible and within the scope of paragraph 14 of the General Order." Ibid. Petitioner also contended that the attorney-client privilege barred his former attorney from testifying that he had advised petitioner of the sentencing date and his obligation to appear at that proceeding. The court of appeals rejected that claim, holding that "information concerning a defendant's obligation to appear for sentencing is not 'of a confidential nature' and therefore, is not protected by the attorney-client privilege." Pet. App. 8 (quoting United States v. Freeman, 519 F.2d 67, 68 (9th Cir. 1975)). The court also declined petitioner's invitation to invoke the "last link" doctrine -- "a limited and narrow exception * * * that obtains when disclosure of the (allegedly privileged information) would supply the last link in an existing chain of incriminating evidence likely to lead to the client's indictment." Pet. App. 8 (quoting In re Grand Jury Proceedings (Pavlick), 680 F.2d 1026, 1027 (5th Cir. 1982) (en banc)). The court noted that that "narrow exception" applies only in "exceptional circumstances in which disclosure 'would reveal information that is tantamount to a confidential professional communication.'" Pet. App. 9 (quoting Tornay v. United States, 840 F.2d 1424, 1428 (9th Cir. 1988)). The court therefore agreed with the Eleventh Circuit's recent decision in United States v. Innella, 821 F.2d 1566, 1567 (1987), which held that the last link doctrine does not protect information concerning an obligation to appear since the attorney "was acting as an officer of the court when he notified his client of the proper date the client was supposed to turn himself in." Pet. App. 10. Lastly, the court of appeals rejected petitioner's contention that the prosecutor, in his rebuttal argument, improperly referred to petitioner's invocation of his Fifth Amendment privilege against compulsory self-incrimination. The court found that "(i)n context, it is apparent that the prosecution sought to highlight for the jury the fact that the government was not required to prove guilt beyond all possible doubt." Pet. App. 12. The court therefore concluded that the prosecutor "was simply trying to explain the rationale for his burden of proof, rather than calling attention to (petitioner's) decision not to testify." Ibid. ARGUMENT 1. Petitioner renews his contention (Pet. 9-18) that the attorney-client privilege barred petitioner's former attorney from testifying that he had advised petitioner of his sentencing date and obligation to appear at that proceeding. The attorney-client privilege protects "(c)onfidential disclosures by a client to an attorney made in order to obtain legal assistance * * * ." Fisher v. United States, 425 U.S. 391, 403 (1976). Such communications are privileged in order to "encourage clients to make full disclosure to their attorneys." Ibid. An attorney's communication to a client regarding the date of a required court appearance, however, is "not in the nature of a confidential communication." United States v. Hall, 346 F.2d 875, 882 (2d Cir.), cert. denied, 382 U.S. 910 (1965). The attorney has the "duty to relay (such) instructions to his client in his capacity as an officer of the court." 346 F.2d at 882. Accordingly, the courts of appeals have unanimously held that the attorney-client privilege does not protect an attorney's communication to a client regarding the date of a required court appearance. E.g., United States v. Innella, 821 F.2d 1566, 1567 (11th Cir. 1987); United States v. Clemons, 676 F.2d 124, 125 (5th Cir. 1982); In re Grand Jury Proceedings, Des Moines, Iowa, 568 F.2d 555, 557 (8th Cir. 1977), cert. denied, 435 U.S. 999 (1978); United States v. Freeman, 519 F.2d 67, 68 (9th Cir. 1975); United States v. Bourassa, 411 F.2d 69, 74 (10th Cir.), cert. denied, 396 U.S. 915 (1969); United States v. Hall, 346 F.2d at 882. Mindful of this line of authority, petitioner invokes (Pet. 17-18) the so-called "last link" doctrine, claiming that Robison's communication was privileged because it was the "last link" in an existing chain of incriminating evidence supporting his conviction. In the past, the Fifth and Ninth Circuits have held that an attorney may not disclose information about fees and clients' identities where such information would yield substantially probative links in an existing chain of inculpatory events or transactions. See, e.g., In re Grand Jury Proceedings (Pavlick), 680 F.2d at 1027; United States v. Hodge & Zweig, 548 F.2d 1347, 1353 (9th Cir. 1977). /5/ Whatever its validity, the "last link" exception does not apply here. The exception arose out of cases in which the government sought from an attorney information regarding "such matters as the fact of retention, the identity of the client, and information surrounding fee and bonding arrangements executed by or on behalf of a client." In re Grand Jury Proceedings (Jones), 517 F.2d 666, 669 (5th Cir. 1975). But no court has ever suggested, much less held, that the "last link" doctrine extends to communications made by an attorney to his client in the attorney's capacity as an officer of the court. Indeed, as petitioner concedes (Pet. 18 n.5), the only other court of appeals to address the issue -- the Eleventh Circuit in United States v. Innella, 821 F.2d 1566 (1987) -- squarely held that the "last link" doctrine does not apply to a communication regarding the date of a court appearance. Id. at 1567. Accordingly, the court of appeals properly concluded that the attorney-client privilege did not bar petitioner's former attorney from testifying that he advised petitioner of the sentencing date and his obligation to appear at that proceeding. /6/ 2. Petitioner also renews his contention (Pet. 18-25) that his conviction must be reversed because the case was reassigned to another judge in violation of local district court rules. /7/ Here, the first reassignment of petitioner's case was made to the Chief Judge; the Chief Judge then reassigned the case a second time. In these circumstances, the Chief Judge presumably authorized each reassignment as required by Paragraph 14 of the General Order for the Western District of Washington, which provides that "(t)he assignment of all * * * criminal cases * * * is made subject to such change or changes as may be established by the Chief Judge for purposes of equalization of case assignments to all active Judges of the district." Pet. App. 6. Contrary to petitioner's suggestion, however, the local rules do not require the Chief Judge either to state the reason for a reassignment or to cite the General Order when reassigning cases. Consequently, the reassignments of petitioner's case were consistent with the local rules. In any event, "(l)ocal rules governing the assignment of cases are designed as internal housekeeping rules to promote the efficient operation of the district courts; they are not meant to confer rights on litigants." Sinito v. United States, 750 F.2d 512, 515 (6th Cir. 1984); see United States v. Torbert, 496 F.2d 154, 157 (9th Cir.), cert. denied, 419 U.S. 857 (1974); United States v. Dichiarinte, 385 F.2d 333, 337 (7th Cir. 1967), cert. denied, 390 U.S. 945 (1968); Levine v. United States, 182 F.2d 556, 559 (8th Cir. 1950), cert. denied, 340 U.S. 921 (1951). Except when the litigant establishes that the judge to whom the case was transferred was then disqualified by reason of bias, a reassignment is not "the type of judicial action which can potentially prejudice (a defendant's) substantive rights." United States v. Torbert, 496 F.2d at 157. /8/ Here, petitioner claims that the second reassignment prejudiced him because of "Judge Tanner's sentencing practices and pro-Government attitudes and rulings." Pet. 21. Petitioner even suggests (Pet. 21-22) that the case was reassigned in order to penalize him for choosing to go to trial. /9/ Those speculative claims are meritless. First, petitioner has never alleged that Judge Tanner was disqualified from trying his case for any reason. Second, the record contains nothing to suggest -- and petitioner did not even try to make a showing in the courts below -- that his case was reassigned for impermissible purposes. See Cruz v. Abbate, 812 F.2d 571, 574 (9th Cir. 1987). Finally, petitioner has no right to be tried by any particular trial judge. See, e.g., United States v. Braasch, 505 F.2d 139, 147 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975); United States v. Stone, 411 F.2d 597, 598 (5th Cir. 1969). 3. Lastly, petitioner appears to renew his contention that the prosecutor, in rebuttal summation, improperly referred to petitioner's invocation of his Fifth Amendment privilege against compulsory self-incrimination. Petitioner presents this issue for review, see Pet. i ("Questions Presented for Review"), but chooses not to address it in the petition. In any event, there was absolutely nothing wrong with the prosecutor's comment: "unless you were (petitioner), unless you were inside his mind on the night of the 24th, the day of the 25th, unless you were there inside his mind you would never know beyond all possible doubt what was going on in his mind." Pet. App. 11-12. As the court of appeals determined, that comment amounted to a permissible explanation of "the rationale for (the government's) burden of proof, rather than calling attention to (petitioner's) decision not to testify." Id. at 12. 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 JOEL M. GERSHOWITZ Attorney APRIL 1990 /1/ The pertinent facts, which petitioner does not dispute here, are summarized in the court of appeals' opinion. See Pet. App. 2-4. /2/ The court of appeals agreed with petitioner that he should have been sentenced under the Sentencing Guidelines and thus remanded the case for resentencing. Pet. App. 14-19. /3/ Petitioner cited General Rule 8(a) of the Local Rules for the Western District of Washington, which provides that "(a)ll actions, causes, and proceedings, civil and criminal, shall be assigned by the Clerk to the respective Judges of the Court." W.D. Wash. R. 8(a). Petitioner also relied on Paragraph 14 of the General Order for the Western District of Washington, which provides in pertinent part that "(t)he assignment of all * * * criminal cases * * * is made subject to such change or changes as may be established by the Chief Judge for purposes of equalization of case assignments to all active Judges of the district." Pet. App. 6. /4/ The court of appeals rejected petitioner's contention that the second reassignment violated General Rule 8(a), determining that such action was authorized by Paragraph 14 of the General Order. Pet. App. 5-7. /5/ In more recent cases, the Ninth Circuit has retreated from that position, holding that the attorney-client privilege does not prohibit the disclosure of otherwise unprotected information simply because that information may incriminate the attorney's client. See, e.g., Tornay v. United States, 840 F.2d 1424, 1427-1428 (9th Cir. 1988); In re Osterhoudt, 722 F.2d 591, 593 (9th Cir. 1983). That view is consistent with the holdings of other courts of appeals. See, e.g., In re Shargel, 742 F.2d 61, 62-64 (2d Cir. 1984); In re Witnesses Before the Special March 1980 Grand Jury, 729 F.2d 489, 492-494 (7th Cir. 1984); In re Grand Jury Empanelled February 14, 1978 (Markowitz), 603 F.2d 469, 473 n.4 (3d Cir. 1979). /6/ Petitioner also contends that Robison's testimony improperly disclosed other allegedly privileged matters, including "advice, appearance obligations, strategies, and (petitioner's) understanding of his obligations." Pet. 10. In the court of appeals, however, petitioner challenged only the admission of Robison's testimony regarding the obligation to appear for sentencing. See Pet. C.A. Br. 22-27; Pet. C.A. Reply Br. 7-12. Petitioner's new challenge is therefore not preserved for review in this Court. E.g., United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977); Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970). In any event, Robison's testimony about matters other than petitioner's obligation to appear for sentencing was harmless. Those statements could have added nothing of significance to Robison's testimony that he explicitly told petitioner of the date of sentencing and of his obligation to appear. Petitioner appears to draw a distinction between a lawyer's informing a client of an appearance date and the lawyer's informing the client of his obligation to appear on that date, suggesting that the latter communication is privileged even if the former is not. But an attorney acts no less as an officer of the court when he tells his client of the client's obligation to appear than when he tells the client when to appear. As far as we are aware, no court has adopted the proposed distinction. See, e.g., In re Walsh, 623 F.2d 489, 495 (7th Cir.) (attorney may be asked if he told client of client's "duty to reappear before the grand jury if called"), cert. denied, 449 U.S. 994 (1980); United States v. Freeman, 519 F.2d at 68 (attorney may testify that he told client of "the court's order to appear"). /7/ Petitioner errs in relying on General Rule 8(a) since that rule, by its terms, does not speak to reassignment of cases. See note 3, supra. /8/ Petitioner errs (Pet. 20) in relying on United States v. Ferretti, 635 F.2d 1089 (3d Cir. 1980). In Ferretti, the local rule at issue entitled criminal defendants who presented no evidence to make the last closing argument. The court of appeals ordered a new trial where the trial judge had violated that local rule and the defendant had relied on the rule in deciding not to present any evidence. Id. at 1090-1094. Here, by contrast, the rules at issue involve court administration as opposed to trial procedure, and petitioner cannot be said to have relied on the local assignment rules in planning his trial strategy. In any event, as the court of appeals correctly concluded, the reassignments of petitioner's case were consistent with the local rules. /9/ Petitioner does not allege that the first reassignment prejudiced him.