No. 96-1080 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 BRIAN KEVIN CLEMENT, PETITIONER UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LOUIS M. FISCHER Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioner is entitled to a reversal of his conviction under 18 U.S.C. 922(a)(5) and 924(a)(l)(D) because the trial court, without objection, failed to instruct the jury that the requirement that peti- tioner "willfully Violate[d]" the law meant that he acted with knowledge that his conduct was illegal. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Discussion . . . . 4 Conclusion . . . . 7 TABLE OF AUTHORITIES Ratzlaf v. United States, 51 U.S 135 (1994) . . . . 3, 4, 5, 6 United States v. Ali, 68 F.3d 1468(1995), modified on reh'g, 86 F.3d 275 (2d Cir. 1996) . . . . 4 United States v. Collins, 957 F.2d 72(2d Cir.), cert. denied, 504 U. S. 944(1992) . . . . 2, 3, 4, 5, 6 United States v. Frady, 456 U. S. 152 (1982) . . . . 5 United States v. Hayden, 64 F.3d 126 (3d Cir. 1995) . . . . 4 United States v. Hem, 926 F.2d 764 (8th Cir. 1991) . . . . 4 United States v. Obiechie, 38 F.3d 309 (7th Cir. 1994) . . . . 4 United States v. Olano, 507 U.S. 725 (1993) . . . . 5, 6 United Stabs v. Sanchez-Covcino, 85 F.3d 549 (llth Cir. 1996) . . . . 4 Statutes and rule: 18 U.S. C. 922(a)(5) . . . . 2, 4, 6 18 U. S. C. 924(a)(l)(D) . . . . 2, 3, 4 31 U.S.C. 5322(a) (1988) . . . . 3 31 U.S.C. 5324(3) (1988) . . . . 3 Fed. R. Crim. P. 52(b)) . . . . 3, 4, 5, 6 (III) ---------------------------------------- Page Break ---------------------------------------- OCTOBER TERM, 1996 No. 96-1080 BRIAN KEVIN CLEMENT, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT BRIEF FOR THE UNITED STATES OPINION BELOW The opinion of the court of appeals (Pet. App. Al- A5) is not reported. JURISDICTION The judgment of the court of appeals was entered on August 21, 1996. A petition for rehearing was denied on October 8, 1996 (Pet. App. A6-A7). The petition for a writ of certiorari was filed on January 3, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT After a jury trial in the United States District Court "for the Eastern District of New York, peti- tioner was convicted of transferring firearms to persons he knew or had reasonable cause to believe resided in another State, in violation of 18 U.S.C. 922(a)(5) and 924(a)(l)(D). He was sentenced to 30 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. Pet. App. A1-A5. 1. Between 1990 and 1994, petitioner bought 11 semi-automatic handguns in North Carolina and transferred nine of them to his father and four brothers in New York. An ATF agent traced to petitioner one handgun that had been seized from a person arrested in New York City. When questioned about the weapon, petitioner confessed to transfer- ring that and the other weapons to his father and brothers. Pet, App. A2. 2. Section 922 (a)(5) prohibits the transfer of "any firearm to any person * * * who the transferor knows or has reasonable cause to believe does not reside in * * * the State in which the transferor resides." Although Section 922(a)(5) does not contain "willfulness" element, the penalty provision under which petitioner was punished-18 U.S.C. 924(a) (1)(D)-requires a showing that the defendant "willfully violate[d]" Section 922(a)(5). See Pet. 2-3 (quoting Sections 922(a)(5) and 924(a)(l)(D)). At peti- tioner's trial, the district court, applying circuit precedent, see United States v. Collins, 957 F.2d 72 (2d Cir.), cert. denied, 504 U.S. 944 (1992), instructed the jury that, "[t]o find that [petitioner] acted will- fully, the Government must prove beyond a reasonable ---------------------------------------- Page Break ---------------------------------------- 3 doubt that [petitioner] acted knowingly and purpose- fully and that [petitioner] intended to commit an act which the law forbids." Pet. 4 n.2; see Pet. App. A3. Petitioner did not object to that instruction. Pet. 4. 3. On appeal, petitioner argued for the first time that the "willfully violates" requirement of Section 924(a)(l)(D) requires a showing that a defendant acted with knowledge that his conduct was illegal, and that the district court's failure to instruct the jury to that effect was reversible error. Petitioner argued that Collins was wrongly decided and that it "must be reconsidered in light of Ratzlaf [v. United States, 510 U.S. 135 (1994)]." Pet. App. A3. Ratzlaf, which was decided before petitioner's trial, see ibid., construed the "willfully violating" requirement in prosecutions for structuring monetary transactions in violation of 31 U.S.C. 5322(a) and 5324(3) (1988) to require know- ledge that the prohibited transaction was illegal. In an unpublished opinion, the court of appeals de- termined that the precedential validity of Collins after Ratzlaf "is a difficult issue that we need not reach" because petitioner failed to object to the dis- trict court's instruction on willfulness. Pet. App. A3. Applying plain-error review under Federal Rule of Criminal Procedure 52(b), the court held that rever- sal would be warranted only if there were error "so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant's failure to object:" Pet. App. A3. The court concluded that any error here did not meet that standard because, at the time of petitioner's trial, "the district court's jury instruction was completely consistent with a controlling Second Circuit prece- dent," which the Second Circuit has followed (without addressing the issue presented here) "even after the ---------------------------------------- Page Break ---------------------------------------- 4 Ratzlaf decision." Id. at A3-A4 (citing United States v. Ali, 68 F.3d 1468, 1473 (1995), modified on reh'g on other grounds, 86 F.3d 275 (2d Cir. 1996)).' DISCUSSION Petitioner contends (Pet. 6-7) that this Court should resolve a conflict in the circuits on whether a conviction "under 18 U.S.C. 924(a)(l)(D) for "willfully violating]" 18 U.S.C. 922(a)(5) requires proof of knowledge of illegality. Several courts of appeals have held, in the wake of Ratzlaf v. United States, 510 U.S. 135 (1994), that the "willfulness" element in pro- secutions under 18 U.S.C. 922(a)(5) and 924(a)(l)(D) requires a showing that a defendant acted with know- ledge that his conduct was illegal. See United States v. Sanchez-Corcino, 85 F.3d 549, 552-553 (11th Cir. 1996); United States v. Hayden, 64 F.3d 126, 130 (3d Cir. 1995); United States v. Obiechie, 38 F.3d 309,315 (7th Cir. 1994); see also United States v. Hem, 926 F.2d 764,767 & n.6 (8th Cir. 1991). In a pre-Ratzlaf decision, the Second Circuit has held to the contrary. See United States v. Collins, 957 F.2d 72 (2d Cir.), cert. denied, 504 U.S. 944 (1992). The court of appeals declined, however, to reach the "hard question" whether, after Ratzlaf, Collins should be reconsid- ered. See Pet. App. A3. Because petitioner failed to object at trial, the court held narrowly that the district court's instruction, which was consistent with Collins, did not constitute "plain error" under ___________________(footnotes) 1 Petitioner acknowledges (Pet. 8 n.5) that Ali "did not present the question that is central to this case-the meaning of `willfully violated' in section 924(a) (l)(D)-and the issue was not briefed to or addressed by the Ali Court." Instead, Ali appeared to involve a complete failure to issue any instruction on the element of willfulness. See 68 F.3d at 1473. ---------------------------------------- Page Break ---------------------------------------- 5 Fed. R. Crim. P. 52(b). See Pet. App. A3-A4. Resolu- tion of the plain-error issue would not necessarily resolve the conflict in the circuits raised by Collins.2 Moreover, the court's holding on plain error was correct and does not conflict with any decision of another court of appeals. 1. Rule 52(b) provides that "[p]lain errors or de fects affecting substantial rights may be noticed although they were not brought to the attention of the court." That Rule entitles a defendant to relief only if he can make four distinct showings. The de- fendant must establish that the district court com- mitted (1) an "error" (2) that was "plain," "clear: or "obvious" and (3) that affected his "substantial rights." United States v. Olano, 507 U.S. 725, 732-735 (1993). Fourth, even when those showings are made, "Rule 52(b) is permissive, not mandatory; id. at 735, and a reviewing court may exercise its "discretion" to reverse a conviction for plain error only "if the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings'" id. at 736. Here, the court of appeals rejected petitioner's plain-error claim without reaching the issue of whether the jury instruction on willfulness was erro- neous because the court concluded that there was no error "so egregious and obvious as to make the trial judge and prosecutor derelict in permitting it, despite [petitioner's] failure to object." Pet. App. A3; see gen- erally United States v. Frady, 456 U.S. 152, 163 (1982). The court explained that, in the Second Cir- cuit, it was unclear at the time of trial-and is still ___________________(footnotes) 2 Indeed, until the Second Circuit addresses the continu- ing validity of Collins in light of Ratzlaf, it is unclear whether any circuit conflict will persist on the question presented. ---------------------------------------- Page Break ---------------------------------------- 6 unclear today (see Pet. App. A3)-whether a Section 922(a)(5) defendant is entitled to the willfulness charge that petitioner belatedly claims he should have received. By the time of petitioner's trial, this Court had already decided Ratzlaf, the principal authority on which petitioner bases his challenge to the continued validity of Collins.3. Since petitioner's trial, no intervening decision of this Court or the Second Circuit has resolved the tension that peti- tioner perceives between Ratzlaf and Collins. Thus, whether or not Rule 52(b) permits relief in the "spe- cial case where [an] error was unclear at the time of trial but becomes clear on appeal because the applica- ble law has been clarified; Olano, 507 U.S. at 734, the "error" (if any) that petitioner alleges was plain neither at the time of trial nor at the time of appeal. It therefore does not warrant reversal under the plain-error rule. See Olano, 507 U.S. at 734. 2. Although we believe that this petition could ap- propriately be denied before disposition of Johnson v. United States, No. 96-203 (argued Feb. 25, 1997), this Court may nonetheless wish to hold the petition pending its decision in that case. Here, as in John- son, petitioner characterizes the error at issue as a "fail[ure] to instruct the jury on an element. of the crime," Pet. 12, and suggests that such errors auto- matically require reversal even where a defendant did not object at trial, see Pet. 12-13 (citing cases involv- ing other criminal offenses). Although here, unlike ___________________(footnotes) 3 For that reason, it is not clear that petitioner is correct in claiming (Pet. 11-13) that a trial objection based on Ratzlaf would have been "futile." The Second Circuit itself noted that, after Ratzlaf, the precedential status of Collins presents a "difficult issue." Pet. App. A3. ---------------------------------------- Page Break ---------------------------------------- 7 Johnson, there is no intervening precedent that es- tablishes that the court of appeals committed error, this Court's resolution of the plain-error issue in Johnson could bear on the proper disposition of this case. CONCLUSION The petition for a writ of certiorari should be held pending this Court's decision in Johnson v. United States, No. 96-203, and then disposed of accordingly. Respectfully submitted. MARCH 1997 WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LOUIS M. FISCHER Attorney