Berger v. United States - Opposition

No. 07-321

In the Supreme Court of the United States

RICHARD I. BERGER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
LOUIS M. FISCHER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether violation of petitioner's due process right to be present when the trial judge gave a supplemental Allen instruction to the jury was subject to harmless- error review.

In the Supreme Court of the United States

No. 07-321

RICHARD I. BERGER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-59a) is reported at 473 F.3d 1080.

JURISDICTION

The judgment of the court of appeals was entered on January 18, 2007. A petition for rehearing was denied on June 11, 2007 (Pet. App. 60a-61a). The petition for a writ of certiorari was filed on September 7, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for the Central District of California, petitioner was con victed on one count of conspiracy to commit loan fraud and wire fraud, to falsify corporate books and records, and to make false statements in Securities and Ex change Commission (SEC) filings, in violation of 18 U.S.C. 371 (Count 1); five counts of loan fraud and one count of wire fraud, in violation of 18 U.S.C. 1014 and 2 (Counts 2-6 and 15); one count of falsifying corporate books and records, in violation of 15 U.S.C. 78m(b) and 78ff (Count 30); making false statements to accountants of a publicly-traded company, in violation of 15 U.S.C. 78m(a), 78j(b), and 78ff (Count 33); and three counts of making false statements in reports filed with the SEC, in violation of 15 U.S.C. 78m(a) and 78ff (Counts 34-36). He was sentenced to six months of imprisonment, to be followed by five years of supervised release, $3.14 mil lion in restitution, and a $1.25 million fine. Pet. App. 15a. The court of appeals affirmed petitioner's convic tions and restitution order but vacated and remanded his sentence and fine for resentencing. Id. at 1a-59a.

1. Petitioner was the President, Chief Executive Officer, and Chairman of the Board of Craig Consumer Electronics, Inc., a consumer electronics company that sold products such as car stereos, compact music cen ters, and small personal stereos to retail stores. Peti tioner's conviction stemmed from his false representa tions to lending banks and the SEC in order to secure financing for the company's operations. Pet. App. 3a-7a. Specifically, petitioner reported inflated accounts re ceivable and distorted inventory figures to lending banks, and, in order to conceal the fraudulent nature of the reported information, petitioner deceived outside accountants and bank auditors. Id. at 5a-6a. The false reports caused the banks to lend millions of dollars to the company and the banks did not discover the fraud until after the company filed for bankruptcy. Id. at 6a- 7a. Finally, petitioner failed to disclose the company's true financial condition in several mandatory reports filed with the SEC. Id. at 7a.

After the case had gone to the jury and the jury had deliberated for three-and-a-half days, the court held a status conference with the parties and their counsel. The court discussed some jurors' scheduling conflicts that appeared to limit the number of days available for deliberation. Pet. App. 7a. The court believed that some of the requests for days off might be related to "the is sue of stress and responsibility on the part of the jury." Id. at 8a.

The court suggested that it informally discuss the situation with the jurors on the record but outside the presence of the parties and counsel. The court ex plained:

I think this is the time when the jurors need under standing and patience. This is the time when we do what we can to lead them not to make a rush to judg ment and emotional unfair verdicts, chaos within the jury room and eventually a verdict of hung jury.

If there had been any suggestions about an Allen instruction I want the record to indicate that I do not believe in the Allen instruction, I will not give it, never have given it.

Pet. App. 8a. The court said it wanted to quietly convey an understanding of the jury's problems, "to add a posi tive energy to the deliberations, and not to impose ridic ulous time tables." Id. at 8a-9a.

After some discussion, counsel for both defendants indicated that "doing it informally" might be acceptable, but petitioner's lawyer asked to see in writing what the court intended to say. Pet. App. 9a. The court said that it intended to address the issue regarding the jury re quest for days off. The court also said:

And I want to make certain that I can convey to them the thought that a rush to judgment is probably the worst form of verdict you could receive. I feel very strong about that.

Id. at 9a-10a. Petitioner's counsel agreed with the court but qualified his consent on the condition that the court remind the jury that the government bore the burden of proof beyond a reasonable doubt. Id. at 10a. Based on the representations of counsel, the district court ac cepted petitioner's waiver of his right to be present for the court's meeting with the jury. The court also deter mined that waiver to be free and voluntary. Ibid.

In its discussion with the jury, the court first ob served that several jurors had conflicting medical ap pointments. The judge stated that he had been hospital ized during trial with water in the lungs, but had recov ered. Pet. App. 11a. The court then said:

The problem we have here is we have to emphasize one thing. That is this. Jurors should not be forced to reach a verdict. Please understand that. Because any time you're forced to reach a verdict you're go ing to reach an improper verdict or for improper rea sons.

And so far as that's concerned, there's no time limit, except it interferes with your life because if one per son takes off, the entire jury will be unable to con tinue. And we'd like to finish this before Christmas.

Ibid. Two jurors then indicated that they were willing to modify their plans so that deliberations could go for ward on September 2 and 5. A third juror changed her child care plans, and a fourth delayed her medical ap pointment. Id. at 11a-12a. When the fourth juror said she was not happy about the delay, the judge related that he had experienced difficulty sleeping and breath ing for four days before instructing the jury. Id. at 12a.

The court then turned to dates for the week starting September 9th. One juror expressed her belief that the deliberations would be done by then, but another juror disagreed. Pet. App. 12a. In response, Juror Roux said, "I pretty much-I do-we all have our set minds pretty much." Ibid. The court then suggested that the jurors "calm down" and try to resolve their differences. Juror Roux indicated that there would not be a resolution, be cause the different camps were "dead set" in their views. Ibid. The foreperson then said that the jury had not reviewed all the evidence and, therefore, that nothing had been decided. At that point, Roux and another un identified juror said they "would jump out this window" if the jury was still deliberating during the week of Sep tember 15th. Id. at 13a. In response to these concerns, the court told the jury:

I don't know if I should or not, but with respect to those of you who reached a particular conclusion, and that you will not change your minds. It wouldn't be wrong for you to reconsider your position if you can be convinced that perhaps your position was not ac curate, that it could be wrong.

And you have to have that state of mind throughout the deliberations. Otherwise it's going to be like the Hatfields fighting the McCoys. It's not going to be promotive of a final conclusion. As long as you un derstand that.

Id. at 13a-14a.

On its return from its discussion with the jury, the court informed the parties that it "may" have gone be yond its own "script" by telling the jurors who blurted out that they had reached a final conclusion and were not going to change it to reexamine their views to see if they were correct. Pet. App. 14a. The court agreed to have a transcript of its colloquy made immediately avail able so that a corrective instruction could be given if necessary. Ibid.

At a mid-afternoon hearing that same day, petitioner moved for a mistrial based upon his review of the tran script. Counsel argued that the court's final comments to the jury misstated the burden of proof and took "the worst part of an Allen charge" without the balancing language. Pet. App. 14a. The court denied petitioner's motion for mistrial but brought the jury back into the courtroom and read the following clarifying instruction:

You should not take from my remarks this morning any suggestion that you should change your views simply in order to reach an agreement or because other jurors think it is right. If at any time you be lieve that you are deadlocked and unable to reach a verdict, you should inform the Court. The govern ment has the burden of proving every element of the charges beyond a reasonable doubt.

Id. at 14a-15a.

2. The court of appeals affirmed the conviction and restitution order but remanded the fine and sentence for resentencing. Pet. App. 1a-59a. The court of appeals rejected petitioner's claim that the district court had given an improper charge under Allen v. United States, 164 U.S. 492 (1896), or that the court had coerced the jury to reach a unanimous verdict. Pet. App. 19a-27a. The court of appeals found that the form of the instruc tion was not coercive and that the district court had essentially told the jurors to hold on to their conscien tiously held beliefs when the court told the jurors it was proper for them to maintain a "sincere" position that was based on a "recollection of the evidence and law." Id. at 12a-13a,19a-20a. In addition, the district court had given a supplementary instruction that "neutralized any coercive effect of the court's earlier informal com ments." Id. at 20a-21a.

The court of appeals further held that although the trial court's Allen instruction was not coercive, peti tioner's waiver of his right to be present when the court addressed the jury did not extend to the full range of comments made by the court, including the Allen charge. Pet. App. 27a, 30a-31a. The court accordingly concluded that the court's challenged comments "im pinged [petitioner's] due process right to be present at every critical stage of trial." Id. at 27a; see id. at 29a ("Our case law is clear that communication between the judge and jury outside of counsel's presence, without a proper waiver, violates a defendant's right to due pro cess of law."). The court next observed that "[a] viola tion of a defendant's due process right to be present at critical stages of trial is subject to harmless error analy sis." Id. at 31a. The court of appeals concluded that the government met its burden of showing the error was harmless beyond a reasonable doubt, explaining that the trial judge's comments were "at worst, the mildest form of an Allen instruction"; that the jury had deliberated for a substantial amount of time after the instruction; that the jury did not reach unanimous verdicts on all counts; and that the trial court gave a curative instruc tion the same day that it gave the challenged instruction. Id. at 32a.

ARGUMENT

Petitioner contends (Pet. 7-15) that the court of ap peals erred in applying a harmless-error standard of review and that the circuits are divided on the question whether the deprivation of the Sixth Amendment right to counsel at a critical stage is structural error or whether it can be harmless beyond a reasonable doubt. Those claims do not warrant this Court's review.

Petitioner argued to the court of appeals that the deprivation of his right to have counsel present during the court's Allen instruction was subject to review for harmlessness. Pet. C.A. Br. 21 ("When a defendant and/or his counsel is absent during the giving of supple mental instructions, reversal is required unless the Gov ernment can prove beyond a reasonable doubt the ab sence is harmless."); Pet. Reply C.A. Br. 29 ("The Gov ernment has not met its heavy burden of proving beyond a reasonable doubt that the errors committed here were harmless and that there is no reasonable possibility of prejudice to [petitioner]."). The court of appeals can hardly be faulted for applying the very standard of re view pressed by petitioner below.1

Moreover, the court of appeals did not pass on the question whether a Sixth Amendment deprivation of the right to assistance of counsel at a critical stage of pro ceeding was structural error. The court's only reference to counsel occurred in an earlier portion of its opinion addressing the due process violation in a judge's ex parte communication with the jury "outside of counsel's presence." Pet. App. 29a. The court of appeals cited (ibid.) to United States v. Frazin, 780 F.2d 1461, 1469 (9th Cir. 1986), which in turn held that "[e]x parte com munications from the judge to the jury violate a defen dant's right to due process of law." The court also cited (Pet. App. 29a) to United States v. Rosales-Rodriguez, 289 F.3d 1106, 1110 (9th Cir. 2002), with the parentheti cal description that "delivery of a supplemental jury instruction is a 'critical' stage of a trial that requires a defendant's or defense counsel's presence." That deci sion held that the defendant's constitutional right to be present at trial was rooted in the Due Process Clause and the Confrontation Clause of the Sixth Amendment. Id. at 1109.

Similarly, when the court of appeals in this case turned to its harmless-error analysis, it addressed solely the violation of petitioner's due process right to be pres ent during the court's supplemental instruction to the jury. Pet. App. 27a-32a. With respect to that holding, the court of appeals' decision was correct, see Arizona v. Fulminante, 499 U.S. 279, 306-307 (1991)l; Rushen v. Spain, 464 U.S. 114, 117-119 & n.2 (1983) (per curiam).

Petitioner does not argue to the contrary and con cedes that "a defendant's Fifth Amendment due process right to be present at a critical stage of a trial" is "sub ject to harmless error analysis" and is "separate and distinct question" from "the deprivation of the [Sixth Amendment] right to counsel." Pet. 13. Yet the court of appeals did not resolve that "separate and distinct ques tion." Ibid. This case therefore is not an appropriate vehicle to address the alleged conflict in the circuits identified by petitioner (Pet. 11) on how complete a de privation of the right to counsel must be to constitute structural error. The Court does not traditionally con sider issues not pressed or passed on below, see, e.g., Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 527 (1994); United States v. Williams, 504 U.S. 36, 41 (1992); Berkemer v. McCarty, 468 U.S. 420, 443 (1984); United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977), and that rule is particularly apt here since petitioner embraced below the standard of review applied by the court of appeals.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
LOUIS M. FISCHER
Attorney

NOVEMBER 2007

1 Petitioner's briefs to the court of appeals also did not cite any of the cases relied on in the petition (Pet. 8-11) for the proposition that deprivation of the right to counsel at any critical stage is structural error.