MARGARITA MARTINEZ DE ORTIZ, PETITIONER V. UNITED STATES OF AMERICA No. 90-5725 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 Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 3a-12a), rendered upon petition for rehearing en banc, is reported at 907 F.2d 629. The panel opinion of the court of appeals is reported at 883 F.2d 515. JURISDICTION The judgment of the court of appeals was entered on July 16, 1990. The petition for a writ of certiorari was filed on September 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals correctly held that a jury may consider statements of a co-conspirator, in addition to a defendant's own statements and actions, in determining whether the defendant joined the conspiracy. STATEMENT Following a jury trial in the Eastern District of Wisconsin, petitioner was convicted of conspiracy to distribute cocaine, in violation of 21 U.S.C. 846. She was sentenced to ten years' imprisonment and fined $5,000. The court of appeals, sitting en banc, affirmed. 1. The court of appeals' opinion summarizes the relevant facts. Kathleen Jaeger, who faced drug related criminal charges, agreed to cooperate with the government by contacting Linda Cabeza to arrange a purchase of cocaine. During the recorded telephone conversation, Cabeza named "Margarita" as a possible supplier and, in a later conversation, Cabeza told Jaeger than "Margarita" would supply cocaine. Cabeza reported that she and "the person I told you I was gonna talk to" would fly from Miami to Chicago as the "guarantee for everything." Cabeza's husband would then follow by car with the cocaine shipment. Pet. App 4a. Jaeger picked up Linda Cabeza and petitioner Margarita Martinez de Ortiz at the Chicago airport and transported them to their hotel. Petitioner spoke no English and Jaeger spoke no Spanish; hence, Cabeza acted as translator. In the car, Cabeza indicated that her husband was bringing eight kilograms of cocaine to Chicago, and that five were for Jaeger. At the hotel, the three conversed about why Cabeza had turned to petitioner for cocaine. Jaeger testified about Cabeza's translations of petitioner's words and also said that she had heard petitioner mention "kilo" and "Lydia" (whom Cabeza had identified as another potential supplier). Later that day, Jaeger asked petitioner (through Cabeza) whether Jaeger might have all eight kilograms of cocaine. Petitioner responded (through Cabeza) that Jaeger could have the entire shipment. Pet. App. 4a. Cabeza's husband arrived in Chicago with the cocaine late that night. Under their arrangement, the actual transfer was to take place in Wisconsin, where Jaeger lived. Jaeger was to receive the first five kilograms on credit and sell them. She would receive the remaining three kilograms (which were placed in the hotel safe) upon payment. Jaeger, Cabeza, and petitioner drove to Kenosha, Wisconsin in one car, while Cabeza's husband followed in another. Jaeger met Cabeza's husband alone in a parking lot and received five kilograms of cocaine. Federal agents then arrested Cabeza's husband and seized the cocaine. They later arrested Cabeza and petitioner and retrieved the other three kilograms from the hotel safe. Pet. App. 4a. 2. The Cabezas pleaded guilty. Petitioner went to trial on charges of conspiracy to distribute cocaine and possession of cocaine with intent to distribute it. The government sought to admit Linda Cabeza's statements concerning petitioner and Cabeza's translation of petitioner's statements. The trial judge made the preliminary ruling that those statements were admissible under the co-conspirator hearsay exception (Fed. R. Evid. 801(d)(2)(E)) because the government had established by a preponderance of the evidence that the statements were made by a co-conspirator during the course of and in furtherance of a conspiracy. When the case was submitted to the jury, the judge gave two, somewhat contradictory, instructions as to what evidence the jury could consider to determine whether petitioner had joined the cocaine distribution conspiracy: In determining whether the alleged conspiracy existed, and whether a particular defendant became a member of the conspiracy, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants. . . . . . . In determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant. Pet. App. 5a. The second paragraph of these instructions, which required the jury to consider only the acts and statements of petitioner in determining whether she became a member of the conspiracy, was based on the Seventh Circuit's pattern jury instruction Section 5.11. The jury convicted petitioner of conspiracy to distribute cocaine, but acquitted her of the charge of possession with intent to distribute. 3. A panel of the United States Court of Appeals for the Seventh Circuit reviewed petitioner's conviction, upheld the Seventh Circuit's pattern instruction requiring the jury to consider only the defendant's acts and statements in determining whether she was a member of the conspiracy, but nevertheless affirmed. See 883 F.2d 515. On the government's suggestion, the Seventh Circuit granted rehearing en banc to consider whether the pattern instruction is consistent with Fed.R.Evid. 104 and Bourjaily v. United States, 483 U.S. 171 (1987). The en banc court also affirmed petitioner's conviction but disapproved the pattern instruction in light of this Court's decision in Bourjaily. The court concluded that it was proper and appropriate for the jury to consider the statements of a co-conspirator, as well as petitioner's own acts and statements, to determine whether petitioner had joined the conspiracy. Pet App. 4a-8a. The court concluded that because the pattern jury instruction had been favorable to petitioner, its erroneous inclusion was harmless error. Pet. App. 8a. In explaining its ruling, the court observed that, under Bourjaily and Rule 104(a), the trial judge correctly had relied on both direct evidence and co-conspirator statements to find by a preponderance of the evidence that petitioner was a member of the conspiracy, and thus the co-conspirator statements were admissible evidence against petitioner. Pet. App. 7a-8a. The court also found there was sufficient evidence to sustain petitioner's conviction. Id. at 4a, 8a. The court of appeals observed that, in addition to Cabeza's admissible statements, petitioner had arrived in Chicago with Cabeza, petitioner had used the word "kilo" and mentioned the name of another cocaine supplier, and petitioner had demonstrated the ability to control the transaction by changing the sale from a five-kilogram quantity to an eight-kilogram quantity. Ibid. /1/ The court specifically declined to decide "whether hearsay alone is sufficient to support a verdict of guilt." Id. at 5a. Judges Bauer, Cudahy, and Flaum concurred in the result but dissented in part. Id. at 9a-12a. They would have retained the pattern jury instruction. Ibid. ARGUMENT Petitioner asks this Court to decide the following question: May a conviction for conspiracy be based solely upon third-party's (sic) co-conspirator's statements admitted under Rule 801(D)(2)(e) (sic) Federal Rules of Evidence without any other evidence showing by the Defendant's own words or actions that the Defendant was a member of the conspiracy. Pet. ii. The court of appeals, which concluded that the co-conspirator statements in conjunction with other testimony provided sufficient evidence to affirm petitioner's conviction, specifically declined to decide that question, stating: Nothing we say in this opinion addresses the question whether hearsay alone is sufficient to support a verdict of guilt. Pet. App. 5a. See also id. at 11a (Cudahy, J., concurring). Petitioner concedes (Pet. 7) that the court of appeals found it unnecessary to resolve the question she presents. Petitioner does not challenge the correctness of the court of appeals' decision that the jury could consider co-conspirator statements, together with other evidence, in determining whether petitioner joined the conspiracy and was guilty of the offense. Because the court of appeals did not decide the question presented by the petition, the case does not warrant review by this Court. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General RICHARD A. FRIEDMAN Attorney NOVEMBER 1990 /1/ The court of appeals noted that the jury's acquittal of petitioner on the possession charge was inconsistent with the conspiracy conviction, but ruled that this did not require reversal of the valid conspiracy conviction. Pet. App. 8a (citing United States v. Powell, 469 U.S. 57 (1984)).