LUIS RUIZ AND HENRY DIAZ, PETITIONERS V. UNITED STATES OF AMERICA No. 90-5099 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 Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1A-9A) is not reported. JURISDICTION The judgment of the court of appeals was entered on March 12, 1990. The petition for a writ of certiorari was filed on June 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the evidence was sufficient to support petitioner Diaz's convictions. 2. Whether the district court erred in refusing to grant petitioner Ruiz's motion for a severance. 3. Whether the district court correctly admitted evidence of prior acts by petitioner Ruiz that immediately predated and related to the charged conduct. 4. Whether the court's resolution of a disputed factual issue at sentencing concerning petitioner Ruiz was supported by adequate evidence. STATEMENT Following a jury trial in the United States District Court for the Eastern District of North Carolina, petitioners Luis Ruiz and Henry Diaz were each convicted on one count of possession of a kilogram of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Count 1); one count of interstate travel with intent to promote, manage, and carry on an unlawful activity, in violation of 18 U.S.C. 1952(a)(3) (Count 2); and one count of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846 (Count 3). Ruiz was sentenced to 72 months' imprisonment, to be followed by four years' supervised release. Diaz was sentenced to 60 months' imprisonment, to be followed by four years' supervised release. Both were also fined $5,000. The court of appeals affirmed. Pet. App. A. The evidence at trial established that, as the result of information provided by a government informant, petitioners were stopped at the bus station in Fayetteville, North Carolina, on September 7, 1988, as they got off a bus from New York City. They consented to searches of their bags, and were arrested when a package of cocaine was found in Ruiz's luggage. The informant advised DEA Agent Chris Jackson that Ruiz was involved in purchasing kilogram quantities of cocaine in New York and bringing the drugs to Fayetteville by bus. The informant put Jackson in touch with Ruiz, and Jackson posed as a drug dealer as he discussed with Ruiz the possible purchase of a kilogram of cocaine for $17,000. Problems developed, however, because Ruiz was unwilling to provide the drugs without an advance payment, and Jackson would not agree to pay before taking delivery of the drugs. Pet. App. 3A-4A. Ruiz told the informant that he was trying to find someone who would allow the cocaine to be brought to Fayetteville without the need for an advance payment. In that connection, Ruiz mentioned a friend named "Henry," and said the two of them wanted to make enough money to open a nightclub in Fayetteville. Pet. App. 4A. On September 6, 1988, the informant went to Ruiz's house and found him preparing to travel to New York. Ruiz said he had been given $8,000 by someone as a partial payment for a kilogram of cocaine and that he was going to New York to get the cocaine. Ruiz offered to do the same for the informant and Jackson, but the informant said Jackson was still not willing to pay in advance. Ruiz agreed to try to obtain a kilogram of cocaine for Jackson without any initial payment. Ruiz explained that he planned to use the same technique he had used previously, that is, to fly to New York and return the following morning on the bus. Ruiz said his friend Henry would pick him up in New York, and that Henry would come back with him in order to carry the rest of the money for the cocaine back to New York. Pet. App. 4A. The informant later called Agent Jackson and repeated what he knew about Ruiz's plans to travel to New York to purchase cocaine. He told Jackson that Ruiz would be leaving Fayetteville that afternoon for New York City on Piedmont Airlines flight 52, sitting in seat 2-B, and that he would return to Fayetteville by bus the next morning. The informant also said Ruiz would be returning with a man named Henry and that Ruiz expected to be picked up at the bus station either by Debbie Lee or by another friend named John. He described the car that Debbie Lee would be driving as well as the one John would be using. The informant gave Jackson a physical description of Ruiz and said that he would be carrying the cocaine in a gym bag. Pet. App. 4A-5A. State police confirmed that Ruiz had reserved seat 2B on the Piedmont flight, and agents were waiting at the bus station the next morning when the bus from New York arrived. The agents saw a woman who matched the informant's description of Debbie Lee, as well as a car that matched the informant's description of one of the vehicles. Pet. App. 5A; Gov't C.A. Br. at 6-7. When the bus from New York arrived, the agents saw two Hispanic men, later identified as petitioners, get off the bus. The agents approached the two men and asked to speak with them. When Diaz was asked to show some identification and his bus ticket, he produced identification but said that Ruiz had his bus ticket. Ruiz produced both bus tickets. The agents then asked if they could search petitioners' bags, and each one consented. In Ruiz's gym bag, one of the agents found a yellow package wrapped in tape that contained a kilogram of cocaine. Both petitioners were then arrested. Pet. App. 5A; Gov't C.A. Br. at 7-8. The officers searched Ruiz and found $1,400 in cash as well as an address book that contained Diaz's telephone number in New York and notations of names, amounts owed, and other figures. Diaz's wallet contained a piece of paper on which was written Ruiz's name and his address in Fayetteville. Pet. App. 5A. /1/ In a statement made after his arrest, Ruiz admitted that he had gone to New York to buy cocaine for two people whom he knew only by their first names. Ruiz said he took a cab from the airport to a park off Amsterdam Avenue in the Bronx, where he arranged to buy a kilogram of cocaine from some people he did not know. He said he paid $8,000 to one of the people and received a package in a blue plastic bag, which he did not examine but assumed contained cocaine. Then he made bus reservations to return to Fayetteville. Ruiz said he bought two tickets when his friend Henry said he would like to return with him to Fayetteville. Ruiz said he did not know any drug dealers in New York other than the unknown persons from whom he had bought the kilogram of cocaine, and that the New York purchase had been his first drug transaction. When asked about the $1,400 found in his wallet, however, Ruiz explained that the money constituted the profits from drug dealing. Pet. App. 5A-6A; Gov't C.A. Br. at 8-9. Diaz gave a separate statement, in which he said that Ruiz had telephoned him the day before and told him he would be arriving at LaGuardia Airport in New York at 6 p.m. that evening. Diaz and an unnamed friend picked up Ruiz at the airport and returned to Diaz's apartment. Ruiz and the friend left the apartment and the friend returned by himself about one hour later; Diaz and the friend later met Ruiz at the bus station. Diaz explained that he had come to Fayetteville for a couple of days' vacation, and that this was the first time he had seen Ruiz in two months. Pet. App. 6A; Gov't C.A. Br. at 9-10. Petitioners did not testify at trial and presented no evidence in their defense. Ruiz relied on an entrapment defense, and Diaz claimed a lack of any knowledge of or involvement in the crimes charged. Pet. App. 6A; Gov't C.A. Br. at 10. ARGUMENT 1. Diaz contends (Pet. 5-9) that the court of appeals erred in finding the evidence sufficient to support his convictions. The evidence as to Diaz showed that Ruiz told the informant of his intention to travel to New York, buy a kilogram of cocaine with a partial payment, return to North Carolina to sell it, and then send the remaining payment back to New York. Ruiz told the informant that his friend "Henry" would be returning to Fayetteville with him and would take the rest of the money back to New York. Law enforcement agents confirmed that the travel arrangements described to Jackson were indeed made, and they met Ruiz at the bus station the following day, returning just as he had said he would. With him was petitioner Henry Diaz, whose bus ticket Ruiz had in his possession. And in Diaz's pocket was a piece of paper with Ruiz's name and address written on it. In addition, telephone toll records established that Ruiz made nine separate calls to Diaz's number in New York in the days immediately preceding Ruiz's trip to New York. From this evidence, the jury could reasonably conclude that Diaz was a knowing participant in the conspiracy and that he accompanied Ruiz to Fayetteville to make sure that the drugs were completely paid for. Diaz claims there was no direct evidence of his criminal intent. But knowing participation in a conspiracy can be shown by circumstantial evidence; indeed, intent is rarely shown by direct proof. United States v. Briscoe, 896 F.2d 1476, 1505 (7th Cir.), cert. denied, 111 S. Ct. 173 (1990); United States v. Brown, 856 F.2d 710, 711-712 (4th Cir. 1988). Diaz's knowledge could be inferred from (1) his close association with Ruiz on Ruiz's brief trip to New York, which was made for the sole purpose of purchasing cocaine, (2) the many telephone calls from Ruiz to Diaz just before the trip, and (3) Diaz's travel with Ruiz back to North Carolina. Particularly incriminating was Ruiz's statement to the informant that his friend Henry -- a clear reference to Diaz -- would be coming back to Fayetteville with him in order to take the rest of the drug proceeds back to New York. 2. Ruiz claims (Pet. 10-13) that the district court erred in refusing to grant his motion for a severance, because he was prevented by the joint trial from having his own exculpatory statement presented to the jury in its entirety. This claim is without merit. The court of appeals properly held that Ruiz failed to meet the burden of showing that the district court's denial of his severance motion was an abuse of discretion that deprived Ruiz of his right to a fair trial. Pet. App. 6A-7A. A portion of Ruiz's post-arrest statement was excluded from evidence at trial. Ruiz had stated that Diaz was not involved in the drug conspiracy, but Ruiz admitted telling Diaz he was carrying cocaine. For that reason, Ruiz said, he had discouraged Diaz from traveling with him to Fayetteville. C.A. App. 54. The district court ordered that portion of Ruiz's statement redacted and not presented to the jury, because the court found that it was inconsistent with Diaz's defense at trial that he was unaware of any drug dealing by Ruiz. C.A. App. 654-656. Because that portion of Ruiz's statement implicated Diaz in at least the substantive counts, redaction was necessary under this Court's holdings in Cruz v. New York, 481 U.S. 186 (1987), and Richardson v. Marsh, 481 U.S. 200 (1987). /2/ Ruiz argues that the portion of this statement that was redacted because it was inculpatory as to Diaz was exculpatory as to him and would have been admissible in a separate trial. He therefore claims that the redaction of his own exculpatory statement prevented him from presenting his entire defense to the jury, so that the denial of his motion for a severance was prejudicial error. This argument is flawed for two reasons. First, Ruiz overlooks the fact that he could not have offered his entire statement in a separate trial because it would have been inadmissible hearsay. The government was allowed to offer his statement as an admission of a party-opponent under Fed. R. Evid. 801(d)(2)(A), but Ruiz himself could not offer his own out-of-court statement. He would have to testify in order to offer his explanation of the circumstances surrounding his possession of the drugs. In a separate trial, the government might have offered Ruiz's statement again, in which case Ruiz could perhaps insist on the admission of the entire, unredacted statement under the rule of completeness, Fed. R. Evid. 106. But if the government chose not to use his statement, Ruiz would have no way of introducing it. The uncertain possibility that his statement might be offered at a separate trial, or that Ruiz might waive his Fifth Amendment privilege and testify, is not enough to demonstrate prejudice from a failure to grant a severance. See United States v. Funt, 896 F.2d 1288, 1297-1298 (11th Cir. 1990); United States v. Castro, 887 F.2d 988, 997-998 (9th Cir. 1989); United States v. Ford, 870 F.2d 729, 731-732 (D.C. Cir. 1989); United States v. Parodi, 703 F.2d 768, 780 (4th Cir. 1983). Furthermore, contrary to Ruiz's claim, the redacted portion of his statement was not exculpatory as to his involvement in the conspiracy. In the excluded portion of his statement, Ruiz had said that he told Diaz he was returning to Fayetteville with drugs and that he urged Diaz not to come back with him because he did not want Diaz involved in the transaction. As the prosecutor pointed out when defense counsel for Ruiz urged the admission of the entire statement, this portion of the statement did not exculpate Ruiz on the conspiracy count. It tended to show only that Ruiz did not conspire with Diaz. It said nothing about his involvement with others in New York, as well as those in North Carolina for whom Ruiz was buying the cocaine. See C.A. App. 654-656. Thus, even if Ruiz's entire statement might have been admitted in a separate trial, the portion that was not admitted here was not sufficiently helpful to Ruiz that its absence seriously prejudiced him. United States v. Ford, 870 F.2d at 732; United States v. Machado, 804 F.2d 1537, 1544 (11th Cir. 1986); United States v. Leichtman, 742 F.2d 598, 605 (11th Cir. 1984). 3. Ruiz also challenges (Pet. 13-16) the admission of evidence that he had engaged in prior acts of drug dealing. He argues that the evidence was not properly admitted under Fed. R. Evid. 404(b), because it was not relevant to a contested issue but was introduced solely to show his bad character. The challenged evidence concerned the testimony of the informant about the negotiations he had with Ruiz during August about a possible cocaine purchase, including Agent Jackson's conversation with Ruiz, and about a trip to New York that Ruiz made in mid-August during which he bought a half kilogram of cocaine. C.A. App. 459-477, 528. The court of appeals found no error in the introduction of this evidence, holding that "(t)his testimony was a necessary background required to set the stage and allow a proper understanding of the testimony that would be presented as to the final trip to New York and the return by bus." Pet. App. 7A. The court further noted that "(t)he district court was careful in ruling on the admission of this evidence and excluded evidence that was not material to the acts covered by the indictment." Ibid. The courts below were clearly correct in making this evidentiary ruling. "Other acts" evidence is admissible if it is relevant to a material issue in the case and is not introduced solely to show criminal disposition. Huddleston v. United States, 485 U.S. 681, 688-689 (1988); United States v. Cohen, 888 F.2d 770, 776 (11th Cir. 1989); United States v. Percy, 765 F.2d 1199, 1204 (4th Cir. 1985); United States v. Zeuli, 725 F.2d 813, 816 (1st Cir. 1984); United States v. Masters, 622 F.2d 83, 85 (4th Cir. 1980). The relevance of this evidence is clear. The events that took place in the month just preceding Ruiz's September 6 trip to New York were inextricably intertwined with the evidence of the September 6 and 7 drug transaction. The evidence of the informant's meetings and negotiations with Ruiz during August helped explain to the jury how the informant came to know about Ruiz's drug dealing and how Agent Jackson was involved in the informant's dealings with Ruiz. That evidence was therefore "a legitimate part of the government's proof in establishing the conspirac(y) charged in this case." United States v. Nichols, 750 F.2d 1260, 1265 (5th Cir. 1985). Courts have routinely upheld the admission of such evidence where it forms an "integral and natural part of the witness's accounts of the circumstances surrounding the offenses for which the defendant was indicted." United States v. Richardson, 764 F.2d 1514, 1521 (11th Cir.), cert. denied, 474 U.S. 952 (1985). See also United States v. Tate, 821 F.2d 1328, 1331 (8th Cir. 1987), cert. denied, 484 U.S. 1011 (1988); United States v. Saintil, 753 F.2d 984, 987 (11th Cir.), cert. denied, 472 U.S. 1012 (1985); United States v. Webster, 750 F.2d 307, 336 (5th Cir. 1984), cert. denied, 471 U.S. 1106 (1985). The district court was careful to limit the evidence to that which was most closely related to the crimes charged; it excluded other evidence as too remote or too prejudicial. C.A. App. 150-154, 529-532. 4. Finally, Ruiz argues (Pet. 17-24) that the district court erred in failing to conduct a hearing to resolve a disputed factual matter at sentencing. The court of appeals correctly held, however, that the record adequately supported the district court's finding on the factual question. Pet. App. 8A-9A. The matter Ruiz disputed concerned some information used in the presentence report to compute his criminal history category under the Sentencing Guidelines. As was explained at the sentencing hearing, Ruiz's prior state prosecution for drug possession did not result in a finding of guilt; on May 11, 1988, he was discharged on the condition that he comply with a one-year supervision program. Pet. App. 8A; C.A. App. 825-826; Presentence Report 5-6. The probation officer explained that because there was no adjudication of guilt, no points were added to Ruiz's criminal history category under Sentencing Guideline 4A1.1(a), (b), or (c). However, because the conditional discharge included a period of supervision that was still in effect at the time Ruiz committed the instant offenses, two points were added under Sentencing Guideline 4A1.1(d). /3/ Pet. App. 8A. Defense counsel objected to the two-point addition, arguing that Ruiz had not been under active supervision, and pointing out that he had never received any sort of supervision record. C.A. App. 830-831. Counsel did acknowledge, however, that upon his initial objection to the first proposed presentence report, the probation officer contacted the New Jersey court and later added more information to the report, which showed that Ruiz's New Jersey case had been referred for prosecution following the report of the instant conviction. C.A. App. 825-826, 831; Presentence Report 6. Ruiz did not contest that information. The probation officer also testified at the sentencing hearing that Ruiz was under supervision at the time of the offense in this case. C.A. App. 828-829. The district court expressed its satisfaction with the information provided and overruled the defense objection to the two-point addition. C.A. App. 832. Ruiz argues that the government failed to introduce sufficient evidence that he was under supervision in New Jersey. /4/ The Sentencing Guidelines address the problem of resolving disputed issues in sentencing proceedings. Sentencing Guideline 6A1.3 states that the parties should "be given an adequate opportunity to present information to the court regarding (a disputed) factor," and the accompanying commentary explains that it is up to the sentencing court to determine the appropriate procedure for resolving factual disputes. As under previous sentencing law, hearsay and other information not admisible at trial may be considered; the major consideration is whether the information "has sufficient indicia of reliability to support its probable accuracy." Id.; United States v. Tucker, 404 U.S. 443, 446 (1972); United States v. Roberts, 881 F.2d 95, 105-106 (4th Cir. 1989); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir.), cert. denied, 484 U.S. 956 (1987). Although the court must be satisfied that challenged information is reliably accurate, and the government bears the ultimate burden of proof whenever the effect of the disputed information may be to increase a defendant's sentence, United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989), the court is not under an obligation to conduct an evidentiary hearing whenever information in a presentence report is challenged. United States v. Lee, 818 F.2d at 1056. Ruiz questioned whether the information about his being under supervision was accurate before the final version of the presentence report was presented to the court; the probation officer obtained additional information from the state authorities. Ruiz did not challenge the accuracy of that information, which bore clear indicia of reliability, /5/ nor did he offer any other information challenging the matter other than his continued assertion that he was not under supervision. The evidence before the court was therefore amply sufficient to support a finding that Ruiz was under active supervision at the time of the instant offense. United States v. Restrepo, 832 F.2d 146, 149-150 (11th Cir. 1987). /6/ 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 KATHLEEN A. FELTON Attorney NOVEMBER 1990 /1/ The government also introduced telephone toll records that showed nine calls between August 24 and September 6, 1988, from the number at Ruiz's residence in Fayetteville to the telephone numbers in New York registered to petitioner Diaz. C.A. App. 536-539; GX 1, 2, 3. /2/ The rest of Ruiz's statement, which did not mention Diaz, was harmless as to him. See Cruz, 481 U.S. at 192. The district court had initially ruled that Diaz's statement also had to be redacted, since his claim of no knowledge implied that Ruiz did have guilty knowledge of the drugs that were found in his bag. C.A. App. 110-113, 146-147. The district court reversed that decision during the trial, however, when Ruiz conceded his guilt on the substantive charges. C.A. App. 574, 578. /3/ Sentencing Guideline 4A1.1(d) provides: Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. /4/ Petitioner also argues (Pet. 18-19) that the appropriate standard of proof should be "clear and convincing evidence." In McMillan v. Pennsylvania, 477 U.S. 79 (1986), however, this Court rejected the argument that a sentencing court must apply a clear and convincing evidence standard to factual findings involved in the sentencing process; it held that due process is satisfied by application of a preponderance of the evidence standard. Since the adoption of the Sentencing Guidelines, the courts of appeals have uniformly held that the preponderance standard, not the reasonable doubt or clear and convincing evidence standard, governs factual findings made under the Guidelines. United States v. Wilson, 900 F.2d 1350, 1353-1354 (9th Cir. 1990); United States v. Frederick, 897 F.2d 490, 491-493 (10th Cir.), cert. denied, 111 S. Ct. 171 (1990); United States v. Alston, 895 F.2d 1362, 1373 (11th Cir. 1990); United States v. Carroll, 893 F.2d 1502, 1506 (6th Cir. 1990); United States v. Blanco, 888 F.2d 907, 909 (1st Cir. 1989); United States v. White, 888 F.2d 490, 499 (7th Cir. 1989); United States v. McDowell, 888 F.2d 285, 290-291 (3d Cir. 1989); United States v. Guerra, 888 F.2d 247, 250-251 (2d Cir. 1989), cert. denied, 110 S. Ct. 1833 (1990); United States v. Ehret, 885 F.2d 441, 444 (8th Cir. 1989), cert. denied, 110 S. Ct. 879 (1990); United States v. Urrego-Linares, 879 F.2d 1234, 1237-1238 (4th Cir.), cert. denied, 110 S. Ct. 346 (1989). /5/ The information before the sentencing court showed that Ruiz was given a conditional discharge four months before commission of the instant offense, on the condition that he comply with the one-year supervision program. The probation officer learned that the New Jersey case had been referred to court for prosecution as a result of Ruiz's conviction in this case. The fact that deferred prosecution had been initiated clearly showed that Ruiz had not successfully completed and been discharged from the one-year supervision program; the State would not have referred the case for prosecution if Ruiz had already been discharged. /6/ Ruiz relies on United States v. Palta, 880 F.2d 636, 641 (2d Cir. 1989), and United States v. Cifuentes, 863 F.2d 1149, 1151-1156 (3d Cir. 1988), to support his claim that a hearing was required. But those cases are easily distinguishable. In each, the defendant had raised objections to important sentencing factors, which seriously called into question the accuracy of the government's information, counsel suggested further proceedings to verify the information, and the district court did not offer an adequate opportunity for the defendant to rebut the challenged allegations. Here, as we explained above, Ruiz questioned the information in the course of the preparation of the presentence report and the probation officer obtained additional information that confirmed the original statement. In the absence of any further showing to suggest the unreliability of that information, the district court could properly rely on the statements in the presentence report. Finally, we note that the sentence the court imposed on Ruiz, 72 months, fell within the range appropriate to Criminal History Category I, the category that would have applied without the points added for the previous supervision. Since the same sentence could have been imposed even if the district court had refused to add the two points, it is not clear that a different resolution of the disputed factual matter would have made a difference in Ruiz's sentence.