THOMAS R. SMITH, JR., PETITIONER V. UNITED STATES OF AMERICA No. 90-7931 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 Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-23) is not reported. JURISDICTION The judgment of the court of appeals was entered on March 29, 1991, and the petition for a writ of certiorari was filed on May 6, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was denied his Sixth Amendment right to an impartial jury. STATEMENT 1. On April 12, 1988, a grand jury in the Central District of California returned an indictment charging petitioner and seven co-defendants in thirty counts. E.R. 1-41. /1/ Petitioner was charged in five counts: Count One, alleging a conspiracy to defraud the United States by impeding and impairing the Internal Revenue Service (IRS), in violation of 18 U.S.C. 371; Count Five, alleging mail fraud, in violation of 18 U.S.C. 1341; and Counts 25, 26 and 27, alleging that petitioner aided and assisted in the preparation of false and fraudulent tax returns, in violation of 26 U.S.C. 7206(2). The district court granted motions to sever the charges against five of the original defendants, and petitioner was tried only with Charles and Dennis Spurrier. The evidence at trial showed that petitioner and his co-defendants engaged in two types of schemes. One centered on the promotion and sale of supposed offshore trusts to eliminate tax liability and hide assets, and the other involved the sale of programs that the promoters claimed would allow buyers to turn themselves into "nontaxpayers." Pet. App. 2. Following a jury trial, petitioner was convicted on all counts and was sentenced to six months' imprisonment and five years' probation. E.R. 97. 2. During jury deliberations, several jurors informed the trial judge that they believed foreperson Stark had said that he had heard that the Spurriers (petitioner's co-defendants) were guilty. Pet. App. 3. /2/ The judge spoke separately in chambers with the three jurors who allegedly heard the statements, to foreperson Stark, and to the juror to whom Stark allegedly made the comment. Stark denied making the statement and stated that he had no outside information about the case, that he had never heard of the Spurriers before the trial, that his son did not know the Spurriers, and that he had not seen his son (who lived out of town) during the previous month. Tr. 1569-1572, 1574. Stark subsequently testified that he had "said something" but could not remember what it was, although he reiterated that it was not about his son. Tr. 1577; see also Tr. 1593. Following this inquiry, the trial judge stated that he believed "it didn't happen" as reported, that he doubted Stark would lie, and that although Stark apparently had said something that the jurors construed in the manner they reported, he thought the jurors reconstructed the event after the fact in a "did you hear what I heard" fashion. Tr. 1581; see also Tr. 1583. The judge subsequently addressed all of the jurors about the incident in open court. Tr. 1591-1603. He again asked juror Stark if he had any further recollection of what he might have said that other jurors could have understood in the manner they reported. Stark reiterated that he did not remember, observing that he "didn't say very much" and that he "guess(ed) it's something I just shouldn't have said, that's all." Tr. 1593. /3/ The judge then instructed the jurors that only they had access to the evidence on which a decision could be based and that outside information could not have any relevance to their deliberations, and he cautioned them of the dangers and unreliability of hearsay. Tr. 1594-1595. He also stressed to the jurors the importance of keeping an open mind during deliberations, retaining a basic trust in and respect for one another, and coming to a fair decision. Tr. 1595-1601. Finally, the judge polled the jurors to determine whether each believed that he or she could continue to deliberate toward a fair verdict and that the other members of the jury also could do so. Each juror responded affirmatively. Tr. 1601-1603. /4/ After receiving these assurances, the judge excused the jury in mid-morning on December 19, 1989, to resume deliberations. Tr. 1603. The defendants moved for a mistrial on the basis of the incident, but the court denied the motion. Tr. 1603-1609. The court explained that on the basis of the jurors' responses, it was satisfied that they would not consider what several of them had understood Stark to say and that there was no breach of faith among the jurors that would prevent them from deliberating fairly. Tr. 1607-1609. The jury continued deliberations for the remainder of the day and returned its verdict the following morning. Tr. 1620. Petitioner and his co-defendants subsequently moved for a new trial on the basis of Stark's alleged comment, but the court denied that motion. 3/2/89 Tr. 10-22. The court stated that it was confident, on the basis of its interview of the jurors immediately concerned and its subsequent cautioning and questioning of all the jurors, that the incident had no impact on the jury and that the trial was fair. Id. at 14-17. /5/ The court noted that Stark continued to deny that he made the particular statement attributed to him, and that although Stark had said something that was capable of being heard in the way the others recounted, the court found it "manifest that it had absolutely no impact on their deliberations." Id. at 22. 3. On appeal, petitioner contended, inter alia, that the statements attributed to Stark required a new trial because they revealed that he either had knowledge of the case prior to voir dire or that he was exposed to extraneous information during the trial. The court of appeals rejected that claim, noting its obligations to review findings only for clear error and to accord substantial weight to the district court's judgment about the effect of alleged juror misconduct. Pet. App. 4. With respect to petitioner's claim that Stark had pretrial knowledge about the case, the court of appeals concluded that petitioner failed to sustain his burden under McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984), because he had not shown that Stark had failed to answer honestly a material question on voir dire. It found no reason to disagree with the trial court's determination that Stark would not lie about his pretrial knowledge of the case. Pet. App. 7. The court of appeals similarly rejected petitioner's claim that Stark was exposed during the trial to extraneous information that entitled the defendants to a new trial. Pet. App. 8-11. Moreover, assuming, arguendo, that Stark had obtained knowledge that convinced him of the Spurriers' guilt and shared that conviction with other jurors, the court concluded that the trial court's subsequent actions removed any prejudice that Stark's alleged comments might have caused. The court found it significant that the alleged comments were unsubstantiated, that the trial judge met individually with the jurors directly involved, that each juror thereafter responded affirmatively when asked whether he or she would be able to disregard Stark's alleged statements, that there was substantial evidence against the defendants, and that the judge told the jurors to disregard Stark's alleged comments, reminded them of the dangers of hearsay, and told them that no one outside the courtroom could possibly have a relevant opinion about the case. On this basis, the court of appeals concluded that petitioner had failed to demonstrate that the trial court's cautionary instruction was unlikely to cure any potential prejudicial effect. Id. at 9-10 (quoting United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985)). ARGUMENT Petitioner contends that he was denied his right to an impartial jury, because, in his view, juror Stark must have either lied to the court during voir dire about his knowledge of the case (see Pet. 9-12) or "significantly discussed" the case with third parties during the trial (see Pet. 9, 12-15). But the district court found that Stark did not have extraneous information about the case either before or after voir dire, and the court of appeals affirmed the district court's findings. Traditionally, this Court has been reluctant to disturb findings of fact in which two courts below have concurred. United States v. Doe, 465 U.S. 605, 613 (1983). There is no reason for a different disposition here. The unpublished decision of the court of appeals therefore does not warrant review. 1. As petitioner acknowledges, the test governing review of claims that a juror gave false answers during voir dire in criminal cases is the same as that set forth in McDonough Power, Inc. v. Greenwood, 464 U.S. 548 (1984), for civil cases. See Pet. 10 (citing United States v. Perkins, 748 F.2d 1519, 1531 (11th Cir. 1984)); see also United States v. North, 910 F.2d 843, 904-905 (D.C. Cir. 1990), cert. denied, No. 90-1501 (May 28, 1991); United States v. Aguon, 851 F.2d 1158, 1170 (9th Cir. 1988) (en banc). Under McDonough Power, the defendant must demonstrate: (1) that a juror failed to answer honestly a material question, and (2) that a correct response would have provided a valid basis for a challenge for cause. 464 U.S. at 556. Petitioner has not satisfied the first prong of this test, because he offers no support for his bald assertion that Stark lied in response to voir dire questions. Petitioner merely assumes Stark's knowledge and then complains that "Juror Stark failed to come forward with any information regarding his knowledge about the Spurriers." Pet. 9; see also Pet. 12. The simple answer to this argument is that juror Stark denied having any knowledge of the Spurriers, and the trial court, which was in the best position to assess Stark's credibility, believed him. Pet. App. 6. The court of appeals correctly concluded that this finding by the district court was not clearly erroneous, given the absence of any concrete basis for a contrary finding. Further review of this fact-bound claim is not warranted. 2. Petitioner likewise has failed to support his assertion (Pet. 9, 12-15) that Stark must have "significantly discussed" the case with third parties during trial. Stark testified that he had no outside information about the case, and there has been no independent showing that Stark had any discussions with third parties about the case. The trial court, after discussing the matter with Stark and the other jurors involved, credited Stark's statements and expressed the view that the incident did not happen in the way the other jurors had reported. Pet. App. 6. Thus, there is no factual basis for the premise of petitioner's argument that his conviction must be reversed because juror Stark received outside information about the case during the trial. For this reason, the ruling below does not conflict with the decisions of other courts of appeals upon which petitioner relies. See Pet. 13-14. Those decisions address the question whether a defendant is entitled to a new trial because extraneous information that was actually received by the jurors might have affected their verdict; they do not in any way suggest that the district court's factual finding in this case -- that Stark did not receive any such information -- was incorrect. Furthermore, the trial court thoroughly investigated the alleged incident and cautioned the jurors about the introduction of extraneous information into their deliberations. It also polled the jurors individually and determined that each could disregard Stark's alleged statements. On this basis, the trial court, affirmed by the court of appeals, concluded that the incident had no impact on the jury's deliberations. Petitioner has failed to demonstrate that the trial court's actions and cautionary instructions were insufficient to remove any prejudice that might otherwise have resulted from the apparent misunderstanding by other jurors about what Stark said in his brief comment during deliberations. See United States v. Armendariz, 912 F.2d 602, 606 (10th Cir. 1990). He therefore has failed to show that he was denied his constitutional right to "a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217 (1982). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General SHIRLEY D. PETERSON Assistant Attorney General ROBERT E. LINDSAY ALAN HECHTKOPF BRETT DIGNAM Attorneys JUNE 1991 /1/ "E.R." refers to the Excerpt of Clerk's Record filed in the court of appeals. /2/ Juror Coe stated that during a heated argument, Stark stood up and said "I know the Spurriers are guilty," and that when another juror asked how he knew that, Stark said: "Because my son knows somebody that knows the Spurriers," or "my son knows the Spurriers, and he knows they're guilty, so I know they're guilty." Pet. App. 6 (quoting Tr. 1550). /3/ Contrary to petitioner's assertion (Pet. 7), this statement was not an admission by Stark that he made the statement attributed to him. To the contrary, Stark reiterated that he did not remember what he said, and "guess(ed)" it was "something" he should not have said. Tr. 1593. /4/ Petitioner cites the initial views expressed by jurors Hale and Myers, when interviewed in chambers, that Stark should not continue as a juror. See Pet. 15 (citing Tr. 1562). However, petitioner fails to point out that when the jury subsequently was polled, Hale and Myers, like the other jurors, answered affirmatively when asked whether they could perform their tasks fairly and whether "everybody else on this jury can finish this job, so that if you have a unanimous verdict, it will be a fair verdict and a product of a fair trial." Tr. 1600-1601; see id. at 1602 (responses of jurors Hale and Myers). Petitioner also asserts that jurors Coe and Dodge hesitated when asked by the court whether they could continue, see Pet. 7 (citing Tr. 1605), but he fails to acknowledge the trial court's consideration of that issue. When the hesitation was mentioned to the court by one of the defense counsel, the court stated that it was "very confident" about Coe. Tr. 1605. The court's confidence presumably was due to the fact that Coe had elaborated upon his answer to the court's question about whether the jury could continue by expressing the view that the jury was an "intelligent body" and that after listening to the court's cautionary instructions, the jurors could "all go in there with an intelligent outlook and disregard what has happened, and come up with a true and honest opinion about the trial." Tr. 1601; see also Tr. 1598. Similarly, the court noted that although juror Dodge hesitated, further questioning revealed that this was due to her belief that it might be difficult (and might take a longer time) for the jury to agree on a verdict, although she believed that it could do so. Tr. 1602-1603. The court stated that her response was not troubling because it indicated that she was listening to the court's questions. Tr. 1605. /5/ The court also observed that the evidence against the defendants was "overwhelming."