JOHN NEWARK WEST, PETITIONER V. UNITED STATES OF AMERICA No. 90-5802 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. 2372-2385) is reported at 898 F.2d 1493. JURISDICTION The judgment of the court of appeals was entered on April 25, 1990. A petition for rehearing was denied on June 21, 1990 (Pet. App. 15). The petition for a writ of certiorari was filed on September 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Sentencing Commission has statutory authority to promulgate Sentencing Guidelines requiring imposition of terms of supervised release for various categories of offenses. 2. Whether, by failing to make an offer of proof concerning hearsay testimony that the district court excluded from evidence, petitioner waived his right to contend on appeal that the testimony was admissible under an exception to the hearsay rule. 3. Whether, when petitioner had withdrawn his request for an entrapment instruction before the court charged the jury, the district court was required to instruct the jury on entrapment in response to an inquiry received from the jury after it began its deliberations. STATEMENT After a jury trial in the United States District Court for the Middle District of Florida, petitioner was convicted of using a facility in interstate commerce (a telephone) to solicit a murder-for-hire, in violation of 18 U.S.C. 1952A (Supp. V 1987). /1/ Petitioner was sentenced to 51 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed. 1.a. The evidence at trial showed that petitioner solicited a "hitman" to murder his former business partner, James Coughlin, in return for $2500 cash. In 1986, petitioner, Coughlin, and a third partner purchased a motorcycle shop. The partners obtained a $250,000 loan from a bank to finance the venture. The loan was secured by a second mortgage on petitioner's house and a $100,000 life insurance policy covering each of the partners. The business subsequently deteriorated, and both Coughlin and the third investor withdrew in 1987, abandoning the business to petitioner. In the meantime, petitioner's father had invested an additional $50,000 in the business. Pet. App. 2374. In August or September 1987, while speaking of his business problems with a friend, Doug Kimball, petitioner discussed the possibility of destroying the business by means of arson or a staged burglary. Later, petitioner raised with Kimball the possibility of hiring a hitman to murder Coughlin, his former business partner. Unbeknownst to petitioner, Kimball was an FBI informant. Kimball began tape-recording his conversations with petitioner. Pet. App. 2374. Eventually, Kimball arranged a meeting between petitioner and an FBI agent posing as a hitman. On February 2, 1988, a day after petitioner had spoken with the purported hitman by telephone, the hitman telephoned petitioner's house and left a message with petitioner's wife. Petitioner returned the hitman's call that day, and the two met at a hotel in Orlando. At the meeting, which was videotaped, petitioner discussed the hitman's fee, the manner of payment, the possible date of the murder, his own plan to leave town during the pertinent period, and his planned method for handling possible questions from the police. Thereafter, petitioner had the husband of one of his employees "check out" the purported hitman. On February 9, 1988, petitioner informed Kimball in a telephone call that he would send $2500 in cash and an information packet for the hitman; this telephone call was the basis for petitioner's conviction. The FBI arrested petitioner later that month. Pet. App. 2374-2375, 2379. Petitioner testified in his own defense at trial. He admitted that he hated Coughlin and felt "sick" over his business problems, but testified he never intended to have the hitman kill Coughlin. Petitioner claimed that he "was stupid, macho and half-drunk" when he returned the hitman's phone call and met with him on February 2, 1988. After the meeting, petitioner testified, he tried to avoid the hitman. According to petitioner, he asked his employee to check out the hitman only because he feared the hitman might be genuine. Similarly, petitioner testified that he had called Kimball on February 9 to discuss the $2500 payment and instructions for the hitman only because Kimball had been leaving messages. Pet. App. 2375. b. The district court excluded testimony by petitioner concerning statements Kimball made to him during unrecorded telephone conversations, ruling that these statements were hearsay. Petitioner made no attempt to inform the district court of the nature of the statements to which he would have testified. Pet. App. 2376-2377. c. Petitioner did not argue at trial that the government witnesses had entrapped him. During an off-the-record conference, his counsel agreed to withdraw a proposed entrapment instruction. While the jury was deliberating, however, it asked for clarification on entrapment. In response to this inquiry, the court declined to instruct the jury on entrapment, instead referring the jury to the original instructions. Pet. App. 2381. d. Based upon the February 9 phone call to Kimball, petitioner was convicted of using a facility in interstate commerce to solicit a murder-for-hire. Pet. App. 2375. /2/ In accordance with the Sentencing Guidelines, the district court sentenced petitioner to 51 months' imprisonment, to be followed by a three-year term of supervised release. 2. The court of appeals affirmed. Pet. App. 2372-2385. Although it observed that petitioner's testimony regarding Kimball's statements to him was admissible under the state-of-mind exception to the hearsay rule (Fed. R. Evid. 803(3)), the court found that petitioner's failure to make an offer of proof pursuant to Fed. R. Evid. 103(a)(2) left the court "unable to determine" whether the exclusion of this testimony "substantially prejudiced (petitioner's) rights." Pet. App. 2377. The court also held that the exclusion of the evidence did not constitute plain error, since "the district court's ruling did not significantly affect (petitioner's) rights." Ibid. "Although (petitioner) * * * seems to suggest that his testimony as to Kimball's statements might have supported a defense of entrapment," the court explained, "even before (petitioner) gave his testimony, (petitioner's) counsel withdrew his proposed jury instruction on entrapment, conceding there was no entrapment in the case." Ibid. The court of appeals also relied upon petitioner's counsel's withdrawal of the proposed entrapment instruction in holding that the district court had not abused its discretion when it declined to instruct the jury on entrapment during the jury's deliberations. Pet. App. 2381-2382. In any event, the court of appeals continued, "(petitioner) did not testify or present any affirmative evidence in support of his claim of entrapment;" it was necessary for petitioner to "prove more than that the government first solicited him or merely provided the opportunity for the crime;" and the evidence, which the court characterized as "very strong," showed "that the government merely provided an opportunity for (petitioner) to exercise his interest in having Coughlin murdered." Id. at 2382-2383. The court of appeals also rejected petitioner's contention that the Sentencing Commission lacks authority to promulgate Guidelines requiring the imposition of supervised release for various offenses. The court concluded that 28 U.S.C. 994(a)(1)(C) confers that authority on the Commission. Pet. App. 2383-2385. /3/ ARGUMENT 1. Petitioner renews his contention that the Sentencing Commission lacks authority to promulgate Sentencing Guidelines providing for mandatory terms of supervised release. Pet. 5-12. The Guidelines provide that a term of supervised release is to be included in any sentence imposing more than one year's imprisonment, Sentencing Guideline Section 5D1.1(a), and prescribe minimum periods of supervised release for various categories of offenses, Sentencing Guideline Section 5D1.2. Congress specifically directed the Commission to promulgate Guidelines of this nature. As the court of appeals recognized, 28 U.S.C. 994(a)(1)(C) requires the Sentencing Commission to promulgate Guidelines that include "a determination whether a sentence to a term of imprisonment should include a requirement that the defendant be placed on a term of supervised release after imprisonment and, if so, the appropriate length of such a term." /4/ Petitioner contends that permissive language in a different provision, 18 U.S.C. 3583, should be construed to withdraw the authority conferred by Section 994. As he notes, Section 3583(a) provides that a sentencing court "may include as part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment, except that the court shall include as part of the sentence a requirement that the defendant be placed on a term of supervised release if such a term is required by statute," and Section 3583(c) specifies factors that a court is to consider "in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release." Contrary to petitioner's contention (Pet. 5-7), this language cannot fairly be construed to reserve to courts the discretion to decline to impose a term of supervised release in any case in which the statute fixing the penalty for an offense does not require supervised release. Other provisions of the Sentencing Reform Act make clear that -- while Section 3583 sets broad outer boundaries upon the discretion to be exercised by sentencing courts in imposing terms of supervised release -- this authority is to be exercised within the framework of the Sentencing Guidelines in all but exceptional cases. In enumerating the factors that a sentencing court is to consider when it imposes "a sentence," 18 U.S.C. 3553(a)(4) and (5) require the court to consider the Sentencing Guidelines and any pertinent policy statement issued by the Sentencing Commission. Similarly, 18 U.S.C. 3553(b) provides that courts may depart from the Guidelines in imposing "a sentence" only in those cases in which there is an aggravating or mitigating circumstance that has not adequately been taken into account in the Guidelines. 18 U.S.C. 3553(b). Nothing in the language of these provisions suggests that they are limited to terms of imprisonment, as opposed to supervised release (compare Pet. 6-7). To the contrary, "a sentence" unambiguously includes both sanctions, and Section 3583(c) requires a court to take the Guidelines into account in determining whether to impose supervised release. Consequently, it is clear that the authority conferred on courts by Section 3583 must be exercised within the limits established by duly authorized Sentencing Guidelines -- including, under Section 994(a)(1)(C), those Guidelines addressing supervised release. The structure of the statutory scheme -- and, correspondingly, the relation among Sections 994, 3553, and 3583 -- is clear. Section 3583 marks the outer boundaries of the discretion exercised by the courts. Section 994 empowers the Commission to structure and narrow that discretion by means of Guidelines that mandate terms of supervised release for specified categories of offenses and offenders. Section 3553 (and, by incorporation, Section 3583(c)) obligate courts to abide by those Guidelines, except for the exceptional cases that the Guidelines do not adequately address. This accommodation gives each of the Sections a role within the statutory scheme. Petitioner's interpretation, by contrast, renders Section 994(a)(1)(C) a nullity. /5/ Parallel provisions of the statute addressing terms of imprisonment confirm that Section 3583 does not limit the Commission's authority to prescribe terms of supervised release for categories of offenses. Just as Section 3583(a) provides that a sentencing court "may include" a term of supervised release as part of a sentence, 18 U.S.C. 3581 states that a defendant "may be sentenced to" terms of imprisonment prescribed for various classes of offenses. There is also a close parallel between Section 3583(c), which sets forth factors on which the court may rely "in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release," and 18 U.S.C. 3582(a), which sets forth the factors the court is to consider "in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term." It is untenable to suggest that Sections 3581 and 3582 prohibit the Sentencing Commission from adopting Guidelines that mandate terms of imprisonment for various offenses; there is no greater reason to construe Section 3583 to withdraw the Commission's equivalent authority to mandate terms of supervised release. /6/ Significantly, the Sentencing Guidelines regarding supervised release leave room for consideration of the factors referred to in Section 3583. Courts must consider those factors in fixing a sentence within the range prescribed by the Sentencing Guidelines or, under Section 3553(b), in imposing sentence in cases calling for a departure from the Guidelines. Unlike petitioner's interpretation, the court of appeals' construction of the statute allows all relevant statutory provisions to function in accordance with their language. As petitioner recognizes (Pet. 9), no case has suggested that the Sentencing Commission has exceeded its authority in promulgating Guidelines that mandate terms of supervised release for various offenses. There is no conflict among the circuits, therefore, on the question presented by the petition. Petitioner is correct in noting that the courts of appeals have divided on whether the Sentencing Commission was empowered to issue Sentencing Guideline Section 5G1.3, which requires a sentence imposed for an offense committed while a defendant was serving another sentence to run consecutively to the preexisting sentence. /7/ Decisions from two circuits have held that sentencing courts have discretion to impose concurrent sentences without regard to the Guidelines. United States v. Wills, 881 F.2d 823, 825-827 (9th Cir. 1989); United States v. Nottingham, 898 F.2d 390 (3d Cir. 1990). Four other circuits have concluded, consistent with our view, that courts are bound to impose consecutive sentences, as prescribed by the Guidelines, except when the particular facts of the case support a departure from the Guidelines. United States v. Stewart, No. 89-2401 (6th Cir. Oct. 29, 1990); United States v. Miller, 903 F.2d 341, 346-348 (5th Cir. 1990); United States v. Rogers, 897 F.2d 134, 137 (4th Cir. 1990); United States v. Fossett, 881 F.2d 976, 980 (11th Cir. 1989). See also United States v. Whitehorse, 909 F.2d 316, 320 n.5 (8th Cir. 1990) (finding it unnecessary to reach the question). Although there are parallels between the statutory provisions authorizing the Commission to provide for consecutive or concurrent sentences for multiple offenses and the provisions at issue here, /8/ the Guideline governing repeat offenders was not applied in this case. Accordingly, this case does not present the Court with an opportunity to resolve the conflict regarding that Guideline. 2. Petitioner contends that the exclusion of testimony regarding Kimball's statements during their unrecorded telephone conversations was reversible error. Pet. 13-16. As the court of appeals noted, Fed. R. Evid. 103(a)(2) provides that "(e)rror may not be predicated upon a ruling which * * * excludes evidence unless a substantial right of the party is affected, and * * * the substance of the testimony was made known to the court by offer or was apparent from the context within which the questions were asked." In this case, petitioner concededly failed to make any offer of proof, and, as a result, the court of appeals found itself unable to determine whether the trial court's evidentiary ruling substantially prejudiced petitioner's rights. Pet. App. 2377. The court of appeals' straightforward application of Rule 103(a)(2) to the particular facts of this case presents no question calling for this Court's review. Contrary to petitioner's contention (Pet. 14-16), there is no conflict among the circuits on the question presented by the petition. In United States v. Peak, 856 F.2d 825, 832-833 (7th Cir.) cert. denied, 488 U.S. 969 (1988), and United States v. Harris, 733 F.2d 994, 1003-1004 (2d Cir. 1984), the defendants made proffers regarding excluded testimony. Both courts concluded that those offers of proof, though imperfect, were sufficient for the purposes of Rule 103(a). See 856 F.2d at 833 (although proffer was "somewhat unclear," "it (did) summarize the substance of the proposed testimony and indicate its importance to (the defendant's) defense"); 733 F.2d at 1004 (although proffer was "susceptible to varying interpretations," "tak(en) * * * at face value" it showed testimony was admissible). Here, by contrast, petitioner "made no attempt to inform the district court of the nature of (the excluded comments)" and the court was thus "unable to determine whether their exclusion substantially prejudiced (petitioner's) rights." Pet. App. 2377. /9/ The court of appeals' determination that the exclusion of the evidence was not plain error (Pet. App. 2377, 2378) was amply justified and presents no question calling for this Court's review. In reaching that conclusion, the court noted that -- although petitioner argued that the testimony might have supported an entrapment defense -- petitioner's counsel had withdrawn his request for an entrapment instruction even before petitioner testified. Id. at 2377. The suggestion in the petition that the testimony might have led to an acquittal based upon a lack of criminal intent is equally lacking in merit. As the court of appeals noted in another context, there was strong evidence that petitioner's attempt to engage a hitman was serious (id. at 2383): In each of the tape recorded conversations between (petitioner) and Kimball that the jury heard, (petitioner) initiated the subject of the hitman. When (the hitman) first contacted (petitioner), he immediately agreed to meet with him, and furnished him his office number. At the videotaped meeting with (the hitman), (petitioner) discussed the planned murder and negotiated a fee. (Petitioner) also described himself as a "cold and calculating" person, and added that he was certain he could handle the pressure from police. The testimony of both Kimball and Ron Getlin (the individual whom petitioner asked to "check out" the hitman) further strengthened the evidence against (petitioner). On this record, it cannot be said that the exclusion of petitioner's testimony concerning Kimball's statements during unrecorded phone conversations "undermine(d) the fundamental fairness of the trial and contribute(d) to a miscarriage of justice," United States v. Young, 470 U.S. 1, 16 (1985). The court of appeals' decision casts no doubt on the standards that determine when the erroneous exclusion of evidence warrants reversal of a conviction. Nor does it conflict with the decision of any other court of appeals. In all of the cases cited in the petition, the record disclosed the nature of the evidence that had been excluded and the courts were thus better situated to determine whether the excluded evidence could have affected the trial. 3. Petitioner also contends that the district court should have delivered an instruction on entrapment when it received an inquiry from the jury during its deliberations. Pet. 16-18. As the court of appeals noted, petitioner's attorney withdrew a request for an entrapment instruction at a charge conference held before the judge delivered his closing instructions. Pet. App. 2381. /10/ Consequently, that defense was not submitted to the jury before it retired to begin its deliberations. It was not an abuse of discretion for the court to decline to instruct the jury on a defense that petitioner had previously withdrawn and, therefore, that the government had never had an opportunity to confront. Under Fed. R. Crim. P. 30, the parties to a criminal trial are required to submit their request for jury instructions no later that "the close of the evidence" and the court must inform the parties of its proposed rulings "prior to their arguments to the jury." The purpose of these requirements is to assure that "counsel (will) be advised in a fair way what the charge is going to be so that they may intelligently argue the case." See 2 C. Wright, Federal Practice and Procedure: Criminal Section 482, at 685 (1982). In this case, petitioner withdrew his request for an entrapment instruction; it is fair to assume that this action reflected a tactical decision not to assert a defense that ordinarily entails a concession that the defendant is otherwise guilty of an offense. See United States v. Demma, 523 F.2d 981, 985 (9th Cir. 1975) (en banc) (ordinarily, presentation of entrapment defense involves admission that the defendant has done the acts charged). Once petitioner withdrew his request for an entrapment instruction, the government was entitled to assume that entrapment was not at issue in the case and to tailor its closing argument accordingly. Likewise, the district court acted well within its discretion in refusing petitioner's attempt to place a new defense before the jury after it had retired to deliberate. The court of appeals' reasoning is entirely consistent with this Court's decision in Mathews v. United States, 485 U.S. 58 (1988). In Mathews, the trial court denied defense motions attempting to raise an entrapment defense because the defendant was unwilling to admit the elements of the offense with which he was charged. This Court held that "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment." Id. at 62. In Mathews, however, there was no dispute that the defendant had raised and preserved his entrapment defense. Nothing in that decision suggests that the ordinary procedural requirements for the preservation of defenses are inapplicable to entrapment or that, once having made a decision not to assert an entrapment defense, a defendant may change his mind after the jury has been instructed on the legal issues the parties have advanced during the trial. In any event, the court of appeals held that there was insufficient evidence to justify an entrapment instruction. The court recognized, quoting Mathews, that "(a)s a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor," but its "review of the evidence in this matter convince(d) (it) that the district court properly declined to give the jury the entrapment instruction." Pet. App. 2382. The court's assessment of the evidence was correct. As the court noted, "(t)o raise entrapment a defendant must prove more than that the government first solicited him or merely provided the opportunity for the crime." Ibid. Accord Mathews v. United States, 485 U.S. at 66 ("evidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant (an entrapment) instruction"). The court's application of well-established legal standards recognized in Mathews to the particular facts of this case presents no question calling for this Court's attention. 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 SEAN CONNELLY Attorney NOVEMBER 1990 /1/ This provision is currently codified at 18 U.S.C. 1958. /2/ Petitioner was acquitted on another count charging a violation of the same statute arising from a January 25 telephone call. He was also acquitted of possession of an unregistered silencer, in violation of 26 U.S.C. 5861(d) and 5871. Pet. App. 2375. /3/ The court also rejected petitioner's arguments that certain evidence was improperly admitted (Pet. App. 2378-2379), that a mistrial should have been declared after twelve seconds of an unrelated tape was inadvertently played to the jury (id. at 2379-2380), and that the district court erred in delivering a modified "Allen charge" (id. at 2380-2381). The petition does not seek further review of those rulings. /4/ The legislative history of this Section confirms that the Sentencing Commission has authority to determine whether sentences should include mandatory terms of supervised release. The Senate Report on the bill from which the Sentencing Reform Act was derived states (S. Rep. No. 225, 98th Cong., 1st Sess. 165 (1983)): Subsection (a)(1)(C) requires that the sentencing guidelines recommend whether a category of defendant convicted of a particular offense who is sentenced to a term of imprisonment should be required to serve a term of supervised release, and, if so, what length of term is appropriate. /5/ See American Paper Inst., Inc. v. American Elec. Power Serv. Corp., 461 U.S. 402, 421 (1983) (Congress surely did not mean to "paralyze with one hand what it sought to promote with the other"). /6/ Petitioner also contends (Pet. 7-8) that Section 3583(b), by describing the "(a)uthorized terms of supervised release" exclusively in terms of maximum periods of supervised release, also forecloses Sentencing Guidelines providing for minimum terms of supervised release. Section 3583(b), however, does not purport to deprive the Commission of authority to issue Guidelines mandating terms of supervised release for various offenses. Indeed, Section 3581 sets forth "(a)uthorized terms" of imprisonment without establishing mandatory minimum terms, yet the Commission undoubtedly has authority to issue Guidelines requiring imposition of terms of imprisonment (in the absence of a basis for a departure from the Guidelines) for various offenses. /7/ This Guideline has been amended since the initial issuance of the Sentencing Guidelines. See United States v. Rodgers, 897 F.2d 134, 136 (4th Cir. 1990). /8/ Compare 18 U.S.C. 3584; 28 U.S.C. 994(a)(1)(D) (consecutive and concurrent sentences) with 18 U.S.C. 3583; 28 U.S.C. 994(a)(1)(C) (terms of supervised release). /9/ The other cases upon which petitioner relies are inapposite. In United States v. Sweiss, 814 F.2d 1208, 1211 (7th Cir. 1987), the issue was whether a defendant had preserved legal arguments supporting admission of evidence, not whether the substance of that evidence was clear on the record. In United States v. Carter, 491 F.2d 625, 629-630 (5th Cir. 1974), there was no contention that the defendant had failed to preserve his evidentiary argument for appeal. /10/ The charge conference at which the request for the entrapment instruction was withdrawn was not transcribed. Petitioner suggests (Pet. 17) that his attorney withdrew the proposed instruction because the court indicated that it would not deliver it. During argument on petitioner's motion for a new trial, however, petitioner's counsel did not dispute that he had conceded the absence of an entrapment defense (Gov't C.A. Supp. Br., App. 3): (THE PROSECUTOR): Your Honor, the most that could be said about this type of evidence is that it was the beginning of a possible entrapment defense which (petitioner's counsel) admitted did not exist in this case before (petitioner) even took the stand, so if there was error, we're not saying there was, it was certainly harmless. We respectfully request the Court to deny that motion and uphold the Jury's verdict. THE COURT: Any rebuttal that you wish to make orally? (PETITIONER'S ATTORNEY): No, Your Honor. The district court's order denying the motion for a new trial stated (Gov't C.A. Supp. Br. 5-6): In this case, the Court recalls that prior to (petitioner) taking the stand, both counsel for the Government and (petitioner) met with the Court to discuss the jury instructions. At that time, (petitioner's) counsel agreed to withdraw his requested instruction on entrapment, conceding that there was no entrapment. Based on the evidence, this concession was more than correct. This Court would not be justified in disturbing this factual finding.