JAGADISH PANCHAL AND JITENDRA PANCHAL, PETITIONERS V. UNITED STATES OF AMERICA No. 90-5644 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1303-1313) is reported at 896 F.2d 1303. JURISDICTION The judgment of the court of appeals was entered on March 22, 1990. The petition for rehearing was denied on June 4, 1990. The petition for a writ of certiorari was filed on September 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioners were denied their Sixth Amendment right to an impartial jury when their counsel consented to bifurcation of their trial, as a result of which the jury returned a guilty verdict against petitioners' codefendant before petitioners presented their defense to the jury. 2. Whether petitioners were denied their Sixth Amendment right to be present at their trial when they were excluded from the closing arguments that preceded the jury's deliberation on the charges against their codefendant. STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, each petitioner was convicted on one count of importing hashish, in violation of 21 U.S.C. 952; one count of conspiring to import hashish, in violation of 21 U.S.C. 963; and one count of conspiring to possess hashish with intent to distribute, in violation of 21 U.S.C. 846. Each petitioner was sentenced to concurrent terms of fifteen years' imprisonment on each of the three counts, to be followed by five years of supervised release on the substantive importation count. The court of appeals affirmed. Pet. App. 1303-1313. 1. The evidence at trial showed that in March 1986 petitioners unknowingly hired two undercover Drug Enforcement Administration (DEA) agents to help them import 5,726 pounds of hashish from Bombay, India. Pet. App. 1305. The DEA arranged to have this cargo seized in Newark, New Jersey, by the United States Customs Service without compromising the cover of the DEA agents. Ibid. Petitioners and the undercover agents later planned to import a second load of hashish from Bombay into Miami, Florida. Pet. App. 1305; Gov't C.A. Br. 4-5. In planning the second importation scheme, Jitendra Panchal and codefendant Kishor Joshi met with the agents on June 11, 1987. Pet. App. 1305; Gov't C.A. Br. 3-5. At this meeting, Panchal introduced Joshi as his partner in both the Newark and Miami hashish importation schemes. Pet. App. 1305. During the meeting, it was agreed that Joshi would go to India to get the shipping documents that the agents would need to receive the cargo in Miami. Ibid. On November 19, 1987, Jitendra Panchal and Joshi were arrested after helping DEA agents unload and identify barrels containing 2,540 pounds of hashish. Pet. App. 1305. Upon their arrest, travel documents were seized indicating that Jitendra Panchal and Joshi had planned to travel from Chicago, Illinois, petitioners' residence, to Miami, and then to Montreal, Canada, where they intended to distribute the hashish. Ibid. Most of the meetings and conversations regarding these plans were recorded and later played for the jury at petitioners' trial. Ibid. 2. Petitioners and Joshi were tried together after their motions for a severance were denied by the district court. Pet. App. 1305. At the close of the government's case, counsel for Joshi renewed his motion to sever Joshi's case from that of petitioners. Pet. App. 1306. During the colloguy that followed, attorneys for petitioners expressed concern that their clients might offer perjurious testimony about their relationship with Joshi. Ibid.; Gov't C.A. Br. 2. After reviewing a summary of the petitioners' intended testimony, Joshi's attorney repeated his request for a severance, which the court indicated would be taken under consideration. Pet. App. 1306. Joshi's attorney then proposed a bifurcated procedure, under which Joshi's case would be submitted to the jury before petitioners presented their defense to the jury. Ibid. In response to this proposal, the court asked, "Does anybody object to that procedure?" Ibid. Both counsel for petitioners and petitioners themselves were then present. Id. at 1308. Petitioners remained silent. The attorney for each petitioner expressly consented to the proposed bifurcation procedure. Id. at 1307. The court accepted the proposal of Joshi's attorney and bifurcated the remainder of the trial. Pet. App. 1305. Joshi did not testify or present any evidence. Ibid. The government and Joshi delivered closing arguments, and the court instructed the jury, addressing only the charges against Joshi. Gov't C.A. Br. 3. During closing arguments, petitioners were excluded from the courtroom, but petitioners' attorneys were present. Pet. App. 1305. The jury returned guilty verdicts against Joshi on all counts. Ibid. Petitioners then presented their defense to the jury, which consisted of testimony from petitioners, their sister, and Jagadish Panchal's wife. Ibid. The jury found petitioners guilty on all counts. Id. at 1306. 3. On appeal, petitioners argued that the bifurcation of the trial denied them their right to an impartial jury and that their exclusion from closing arguments for the Joshi phase of the trial denied them their right to be present throughout their trial. The court of appeals rejected both of these arguments and affirmed petitioners' convictions. Pet. App. 1306-1309. The court of appeals concluded that, although the bifurcation potentially implicated petitioners' right to an impartial jury, petitioners waived that right when their counsel expressly consented to the bifurcation. Pet. App. 1306-1309. The court acknowledged that "it is difficult to articulate a bright line distinction between those rights that an attorney can waive without the defendant's consent and those the attorney cannot waive." Id. at 1307 (quoting Poole v. United States, 832 F.2d 561, 564 (11th Cir. 1987), cert. denied, 488 U.S. 817 (1988)). The court observed that prior Eleventh Circuit decisions, consistently with this Court's decision in Estelle v. Williams, 425 U.S. 501, 508 n.3 (1976), inquired whether the waiver "involves a fundamentally important personal right or merely a tactical decision with constitutional implications." Pet. App. 1307. The court concluded that the waiver at issue "(wa)s more akin" to a tactical decision with constitutional implications: By consenting to the bifurcated procedure, trial counsel may well have gambled that the jury would find Joshi not guilty, thereby creating the possibility that Joshi might subsequently provide favorable testimony during the Panchals' segment of the trial and that the jury might be less inclined to find their clients guilty. Counsel may also have reasoned that even if the jury found Joshi guilty, they could then capitalize on that finding by blaming all of the criminal activity on Joshi. The second scenario is essentially what transpired in this case. Id. at 1308 (footnote omitted). Because petitioners' personal consent to bifurcation was not required, the court held, their attorneys' express consent to the procedure waived "any sixth amendment right potentially implicated" by that procedure. Id. at 1309. /1/ The court further held that petitioners' Sixth Amendment rights were not violated by their exclusion from the closing arguments presented during the Joshi phase of the trial. Pet. App. 1309 n.5. The court observed that "none of the (petitioners) objected to their exclusion from the summations." Ibid. The court concluded that, in any event, petitioners' exclusion "did not undermine the fairness of the proceedings," because their attorneys were present throughout the summations. Ibid. ARGUMENT 1. Petitioners contend (Pet. 10-18) that bifurcation of the trial violated their Sixth Amendment right to an impartial jury. The court of appeals agreed that the right to an impartial jury was "potentially implicated" by the bifurcation. Pet. App. 1309. The court concluded, however, that petitioners waived any such right when their counsel expressly agreed to the bifurcation. Id. at 1307-1309. In so concluding, the court correctly rejected petitioners' argument that only petitioners personally, and not their attorneys, could consent to the bifurcation. /2/ As this Court has recognized, "when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas." Faretta v. California, 422 U.S. 806, 820 (1975) (citing Henry v. Mississippi, 379 U.S. 443 (1965)). This Court has also recognized that many of these strategic and tactical decisions have "constitutional implications." Estelle v. Williams, 425 U.S. 501, 508 n.3 (1976). Notwithstanding this recognition, this Court has never held that all such decisions require the personal consent of the defendant. On the contrary, the Court has stated, Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has -- and must have -- full authority to manage the conduct of the trial. The adversary process could not function effectively if every tactical decision required client approval. Taylor v. Illinois, 484 U.S. 400, 417-418 (1988) (footnote omitted). /3/ This Court has accordingly upheld the authority of a defendant's attorney to make tactical decisions that have the effect of waiving the defendant's constitutional rights. For example, in Taylor, the Court addressed a decision by the defendant's attorney not to disclose in pretrial discovery the identity of a material defense witness, which decision led to exclusion of that witness's testimony. 484 U.S. at 403-406. The Court held that this decision was binding on the defendant, even though it implicated the defendant's right under the Compulsory Process Clause of the Sixth Amendment to present witnesses in his own defense. Id. at 408 and 416-418. /4/ In Estelle, the Court held that, by failing to object, the defendant's attorney in effect waived his client's right under the Due Process and Equal Protection Clauses not to stand trial in prison clothing. 425 U.S. at 503-513. /5/ And in Henry v. Mississippi, 379 U.S. 443, 450-453 (1965), the Court held that a deliberate decision by a defense attorney not to object to the admission of illegally seized evidence would waive the defendant's constitutional right not to be tried on the basis of such evidence. Consistently with these decisions, lower courts have in numerous contexts held that tactical decisions by counsel that have the effect of waiving a client's constitutional right are binding on the client. See, e.g., Poole v. United States, 832 F.2d 561, 564 (11th Cir. 1987) (waiver by stipulation of government's burden of proving element of the offense), cert. denied, 488 U.S. 817 (1988); United States v. Pacente, 503 F.2d 543, 552 (7th Cir. 1974) (waiver of right to 12-person jury); Winters v. Cook, 489 F.2d 174, 178-180 (5th Cir. 1973) (waiver of right to object to racial composition of jury); United States ex rel. Allum v. Twomey, 484 F.2d 740, 745-746 (7th Cir. 1973) (waiver of right to object to admission of illegally obtained evidence); United States v. Allison, 481 F.2d 468, 470-472 (5th Cir. 1973) (waiver of right to prevent alternate juror from sitting in during jury deliberations). /6/ The decision of the court of appeals in this case is fully consistent with the decisions of this Court and the courts of appeals. /7/ The court below correctly determined that "the request for a bifurcated trial is more akin to a tactical decision with constitutional implications than a decision involving an inherent personal right of fundamental importance." Pet. App. 1308. As the court reasoned, counsel's consent to the bifurcation was a reasonable strategic move. Ibid. Petitioners' counsel justifiably could have reasoned that, if Joshi were found not guilty, he might then testify favorably in petitioners' phase of the trial, and that, if Joshi were found guilty, petitioners' counsel could focus on their argument that Joshi intimidated petitioners into participating in the drug importation scheme. Ibid. Having correctly concluded that the decision to consent to bifurcation was within the authority of petitioners' counsel to make and that the decision they made was justifiable in light of reasonable tactical considerations, the court of appeals properly held that petitioners had to accept the consequences of that decision. See Taylor, 484 U.S. at 418; Henry, 379 U.S. at 451. /8/ 2. Petitioners further contend (Pet. 9-10) that their exclusion from the closing arguments presented during the Joshi phase of the trial violated their right to be present at their own trial. /9/ The court below correctly rejected this contention as "meritless." Pet. App. 1309 n.5. The defendant has a right to be present "at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta, 422 U.S. at 819 n.15. Accord Snyder v. Massachusetts, 291 U.S. 97, 108 (1934) (accused has right to be present "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only"). The court below properly applied this principle to determine that petitioners' absence from the summation "did not undermine the fairness of the proceedings," because counsel for petitioners were present. Pet. App. 1309 n.5. The presence of petitioners' counsel distinguishes this case from the case on which petitioners place exclusive reliance (Pet. 9), United States v. Stratton, 649 F.2d 1066, 1080-1081 (5th Cir. 1981), in which both the defendant and his counsel were excluded from a summation. Even if petitioners should have been permitted to be present during the summations, their exclusion was harmless error and thus does not warrant this Court's review. See Stratton, 649 F.2d at 1080 ("(I)n many cases finding a defendant's involuntary absence at trial to have been harmless error, the court emphasizes the fact that while the defendant may have been absent, his attorney was present to protect his rights."); see also, e.g., Hall v. Wainwright, 805 F.2d 945, 947 (11th Cir. 1986), cert. denied, 484 U.S. 905 (1987); United States v. Walls, 577 F.2d 690, 698 (9th Cir.), cert. denied, 439 U.S. 893 (1978); United States v. Toliver, 541 F.2d 958, 965-966 (2d Cir. 1976); Estes v. United States, 335 F.2d 609, 617-618 (5th Cir. 1964), cert. denied, 379 U.S. 964 (1965). 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 JOEL M. GERSHOWITZ Attorney NOVEMBER 1990 /1/ The court noted that "while the defendants did not expressly consent to the procedure, they were present in the court during the colloquy between the court and counsel, knew the matter was being discussed, and made no objection." Pet. App. 1308. /2/ Petitioners have never disputed that the right to an impartial jury, like other constitutional rights, may be waived. See United States v. Bolinger, 837 F.2d 436, 438-439 (11th Cir.), cert. denied, 486 U.S. 1009 (1988); Government of Virgin Islands v. Parrott, 551 F.2d 553, 554-555 (3d Cir. 1977). /3/ See also Brookhart v. Janis, 384 U.S. 1, 7 (1966) (defense counsel could not "override his client's desire expressed in open court to plead not guilty"); cf. Boykin v. Alabama, 395 U.S. 238, 242 (1969) (guilty plea may only be entered upon affirmative showing of knowing and intelligent waiver by defendant); Fay v. Noia, 372 U.S. 391, 439 (1963) (federal court may deny habeas relief if applicant "after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts"); Adams v. United States, 317 U.S. 269, 275 (1942) ("an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury"). /4/ In connection with this holding, the Court referred to other types of decisions by counsel that have the effect of waiving the defendant's Sixth Amendment rights: "Putting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer's decision to forgo cross-examination, to decide not to put certain witnesses on the stand, or to decide not to disclose the identity of certain witnesses in advance of trial." Taylor, 484 U.S. at 418. /5/ The Court in Estelle concluded that "although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court * * * is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." 425 U.S. at 512-513. The result in Estelle refutes petitioners' contention (Pet. 15) that any tactical decision that implicates a "personal right of fundamental importance" may be made only by the defendant and not defendant's counsel. The Court in Estelle observed at the outset that the right to a fair trial implicated in that case is a "fundamental liberty secured by the Fourteenth Amendment," and that the correlative right to be presumed innocent is a "basic component of a fair trial." 425 U.S. at 503. /6/ See also United States v. Spiegel, 604 F.2d 961, 965 n.9 (5th Cir. 1979), cert. denied, 446 U.S. 935 (1980); United States v. O'Looney, 544 F.2d 385, 392 n.5 (9th Cir.), cert. denied, 429 U.S. 1023 (1976). /7/ In arguing to the contrary (Pet. 10-11), petitioners rely primarily on this Court's decision in Leonard v. United States, 378 U.S. 544 (1964), and the Fifth Circuit's decision in United States v. Stratton, 649 F.2d 1066 (5th Cir. 1981). In both instances petitioners' reliance is misplaced. In Leonard, the Court accepted the United States' position that (p)rospective jurors who have * * * heard a verdict returned against a man charged with crime in a similar case immediately prior to the trial of another indictment against him should be automatically disqualified from serving at the second trial, if the objection (to these jurors' serving) is raised at the outset. 378 U.S. at 545 (emphasis added). In this case, petitioners not only failed to object to the procedure now complained of but in fact expressly consented to it. The consent of petitioners' counsel to the bifurcation likewise distinguishes this case from Stratton, in which there is no evidence that defense counsel consented to bifurcation. 649 F.2d at 1072 and 1079-1080. In addition, the holding in Stratton that the bifurcation involved there was improper was significantly influenced by a circumstance that does not obtain here. In Stratton, before the defendant Smith completed his phase of a bifurcated trial, jurors were expressly instructed that, in deliberating on the charges against Smith's co-defendants, they could consider whether Smith was a member of the conspiracy charged and whether Smith "knowingly and wilfully participated" in the substantive offense charged. Id. at 1082. No such instructions were given in this case. Pet. 7. /8/ Contrary to petitioners' assertion (Pet. 12 and 17), the trial court was not required on its own initiative to afford petitioners an opportunity to withdraw their consent to the bifurcation after the jury returned a verdict against Joshi. Counsel for petitioners knew that Joshi might be found guilty when they agreed to the bifurcation. In any event, it was counsel's responsibility, not the court's, to try to withdraw their prior consent. See Estelle, 425 U.S. at 512 (rejecting argument that court should have asked counsel and accused whether accused was going to trial in prison clothes; "(u)nder our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney"). Neither counsel nor petitioner raised any objection to continuation of the trial after the jury returned the Joshi verdict. /9/ As the court of appeals observed, at the trial neither petitioners nor their counsel objected to petitioners' exclusion from the summations. Pet. App. 1309 n.5.