Gray v. United States - Opposition

No. 08-792

In the Supreme Court of the United States

NATHANIEL GRAY, PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
NINA GOODMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2510-2521, requires sup pression of evidence derived from a court-authorized wiretap, where the wiretap application was approved by a statutorily designated official but the application and order failed to state that fact.

2. Whether the evidence was sufficient to support petitioner's convictions for conspiring with public offic ials to extort, and aiding and abetting public officials' extortion of, "property from another * * * under color of official right," in violation of the Hobbs Act, 18 U.S.C. 1951.

In the Supreme Court of the United States

No. 08-792

NATHANIEL GRAY, PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-59a) is reported at 521 F.3d 514. The opinion of the district court (Pet. App. 60a-101a) is reported at 372 F. Supp. 2d 1025.

JURISDICTION

The judgment of the court of appeals was entered on April 2, 2008. A petition for rehearing was denied on July 17, 2008 (Pet. App. 1a-2a). On October 10, 2008, Justice Stevens extended the time within which to file a petition for a writ of certiorari to and including Decem ber 14, 2008, and the petition was filed on December 15, 2008 (Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Ohio, petitioner was convicted on one count of conspiring to conduct the af fairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1962(d); three counts of conspiring to obstruct interstate com merce by extortion, in violation of 18 U.S.C. 1951(a) (the Hobbs Act, 18 U.S.C. 1951); 12 counts of obstructing interstate commerce by extortion, in violation of the Hobbs Act; and 20 counts of mail and wire fraud, in vio lation of 18 U.S.C. 1341, 1343, and 1346. Petitioner also pleaded guilty to one count of income tax evasion, in vio lation of 26 U.S.C. 7201. Pet. App. 6a-7a. He was sen tenced to 180 months of imprisonment, to be followed by three years of supervised release. Id. at 8a. The court of appeals reversed petitioner's convictions on three of the Hobbs Act extortion counts, affirmed petitioner's convictions on the remaining counts, and remanded for resentencing. Id. at 1a-59a. On remand, the district court sentenced petitioner to 180 months of imprison ment, to be followed by three years of supervised re lease. Am. J. 3-4 (Sept. 24, 2008).

1. a. Petitioner operated a consulting business that represented companies interested in obtaining municipal contracts. Beginning in the mid-1990s, petitioner fun neled cash and gifts from firms he represented to public officials, in return for their steering contracts to peti tioner's clients. Pet. App. 5a-6a.

Petitioner provided the mayor of East Cleveland, Emmanuel Onunwor, with monthly cash payments fun ded by entities seeking to obtain or retain contracts with the city. Petitioner approached Onunwor about finding municipal work for one of his clients, Ralph Tyler Com pany (RTC), a Cleveland engineering firm. After Onun wor replaced the company that had an existing city con tract with RTC, and began awarding engineering con tracts to RTC, petitioner increased the amount of his monthly payments to Onunwor. Pet. App. 39a-41a.

Another engineering firm, CH2M Hill (CH2M) con tracted with East Cleveland to run the city's water de partment after petitioner arranged for CH2M represen tatives to meet with Onunwor. CH2M paid RTC, which had no involvement in the water contract, a monthly fee for "consulting services," and RTC passed the payments directly to petitioner's consulting company. After the city contracted with CH2M, petitioner again increased his payments to Onunwor. Pet. App. 41a-42a.

Onunwor also informed partners of a law firm that had contracted to perform tax collection services for the city that if they wanted to keep the contract, they need ed to work with petitioner. The law firm entered into a "consulting agreement," under which the firm made monthly payments to petitioner. Pet. App. 40a-41a.

Petitioner also received monthly payments from Honeywell Corporation, which was interested in being hired as a subcontractor on a Houston energy contract. Using funds supplied by Honeywell, petitioner provided Monique McGilbra, the Houston official who oversaw the energy contract, with money and gifts in exchange for her assistance in ensuring that Honeywell was retained as a subcontractor and received payments under the contract. Pet. App. 42a-46a.

b. In January 2002, Assistant United States Attor ney (AUSA) David Sierleja applied, pursuant to the Om nibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq., for an order authorizing interception of conversations to and from several business and cellu lar telephone numbers used by petitioner. Deputy As sistant Attorney General (DAAG) John Malcolm, a Jus tice Department official designated to review and ap prove wiretap applications, had authorized the applica tion. The application did not state that it had been ap proved by a Justice Department official, however, and did not include a copy of the authorization letter. A fed eral district judge, Judge Oliver, issued an order autho rizing the wiretap for a 30-day period. Like the applica tion, the order did not refer to the official Justice De partment authorization for the wiretap. Pet. App. 11a, 61a-62a, 64a.

2. After being indicted, petitioner moved to sup press evidence obtained from the wiretap on the ground, inter alia, that "the order of authorization * * * under which it was intercepted [wa]s insufficient on its face." 18 U.S.C. 2518(10)(a)(ii). See Pet. App. 66a-67a. As rel evant here, petitioner contended (id. at 73a-74a) that the government had failed to comply with 18 U.S.C. 2518(1)(a) and (4)(d), which require the wiretap applica tion and order to include "the identity of * * * the offi cer authorizing the application." 18 U.S.C. 2518(1)(a); see 18 U.S.C. 2518(4)(d).

The district court held a hearing at which AUSA Sierleja testified that, when he applied for the wiretap in January 2002, he told Judge Oliver that he had ob tained authorization from a Justice Department official designated to approve wiretap applications. When he met with Judge Oliver, AUSA Sierleja had DAAG Mal colm's authorization letter with him, but he did not show it to Judge Oliver. Pet. App. 13a, 64a-65a, 73a-81a.

The district court denied the suppression motion. Pet. App. 60a-101a. The court found that DAAG Mal colm had approved the application before it was submit ted to Judge Oliver and that "Judge Oliver had notice that a specially-designated official approved the applica tion." Id. at 76a. The court concluded that those cir cumstances "sufficiently fixed responsibility with the Justice Department," and thus served the statutory pur pose of "ensur[ing] accountability by a high-level execu tive official." Id. at 78a. Stating that it was unable to "discern any resultant prejudice" to petitioner from the violations of the statutory identification requirements, id. at 80a, the court concluded that the failure to identify any authorizing official in the application and order did not, on the facts of this case, warrant suppression of the wiretap evidence. Id. at 73a-81a.

As noted above, after a jury trial, petitioner was con victed of multiple counts of violations of RICO, conspir acy to obstruct and obstruction of interstate commerce by extortion in violation of the Hobbs Act, and mail and wire fraud. He also pleaded guilty to one count of in come tax evasion. Pet. App. 4a. The district court sen tenced him to 180 months of imprisonment, to be fol lowed by three years of supervised release. Id. at 8a.

3. The court of appeals reversed three of petitioner's Hobbs Act convictions, affirmed his other convictions, and remanded for resentencing. Pet. App. 3a-59a.

a. As relevant here, the court held that the failure of the wiretap application and order to identify the autho rizing official did not require suppression of evidence derived from the wiretap. Pet. App. 15a-23a. Noting that DAAG Malcolm "had authority to, and did in fact, authorize" the application, id. at 21a, and that Judge Oliver had notice of the authorization before he issued the order, id. at 22a, the court held that petitioner was not prejudiced by the government's "breach of a re quirement that does not 'occupy a central, or even func tional, role in guarding against unwarranted use of wire tapping or electronic surveillance.'" Id. at 22a-23a (quo ting United States v. Chavez, 416 U.S. 562, 578 (1974)).

b. Petitioner contended, inter alia, that the evidence was insufficient to support his convictions under the Hobbs Act, 18 U.S.C. 1951. Pet. App. 34a-52a. The Hobbs Act makes it unlawful to "obstruct[], delay[], or affect[] commerce * * * by * * * extortion," or to "conspire[] to do so." 18 U.S.C. 1951(a). Section 1951(b)(2) defines "extortion" as "the obtaining of prop erty from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."

While petitioner's appeal was pending, Pet. App. 34a, the Sixth Circuit issued its decision in United States v. Brock, 501 F.3d 762 (2007). In Brock, private citizens who bribed a public official were convicted of conspiring with the official to extort their own property "under color of official right," in violation of the Hobbs Act. Id. at 764-767. The Sixth Circuit reversed, holding that "[t]o be covered by the statute, the alleged conspirators * * * must have formed an agreement to obtain 'prop erty from another,' which is to say, formed an agree ment to obtain property from someone outside the con spiracy." Id. at 767. The court also observed that "[w]hile the definition of extortion 'under color of official right' correctly extends to public officials who accept a bribe when there is a quid pro quo for the payment, nei ther the Supreme Court nor our court has construed the statute to cover private individuals who offer a bribe to public officials." Id. at 768 (citations omitted). The court stated, however, that private individuals may be convicted of "violating the Hobbs Act when they con spire with public officials or aid and abet them in an ex tortion scheme," id. at 768-769, based on proof that the scheme involved "the obtaining of property of another, with his consent." 18 U.S.C. 1951(b)(2).

In supplemental briefing, petitioner argued that Brock required reversal of his Hobbs Act convictions be cause the government failed to prove that he conspired with public officials to obtain, or aided and abetted pub lic officials in obtaining, "property from another"-i.e., from a third party. Pet. App. 38a-39a.

Applying Brock (Pet. App. 34a-39a, 52a), the court of appeals affirmed petitioner's convictions on the Hobbs Act counts involving payments to Onunwor. Id. at 39a- 42a. Citing the "overwhelming evidence that [petition er's] monthly cash payments to Onunwor were funded by entities seeking to obtain or retain contracts with the city," id. at 40a, the court held that petitioner "conspired with, and aided and abetted, Onunwor's extortion of 'property from another, with [their] consent,' by funnel ing payments from [petitioner's] clients, seeking munici pal contracts, to Onunwor while he was acting under color of official right." Id. at 42a. The court also af firmed petitioner's Hobbs Act convictions involving gifts to Houston official McGilbra, id. at 42a-47a, finding that "the evidence showed that the payments and privileges bestowed upon McGilbra did not originate with" peti tioner. Id. at 47a. Rather, petitioner's "corporate cli ents, seeking government contracts, funneled the illegal payments through [petitioner] to McGilbra." Ibid. The court reversed petitioner's convictions on three other Hobbs Act counts, concluding that the government had failed to prove that the payments to public officials came from another. Id. at 47a-50a, 52a.

ARGUMENT

1. Petitioner contends (Pet. 4-16) that the omission of the authorizing official's identity from the wiretap order rendered the order facially insufficient and re quired suppression of evidence derived from the wire tap. No further review is warranted.

a. The court of appeals' decision is correct. This Court has made clear that "suppression is not mandated for every violation of Title III." United States v. Chavez, 416 U.S. 562, 575 (1974). "To the contrary, sup pression is required only for a 'failure to satisfy any of those statutory requirements that directly and substan tially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investi gative device.'" United States v. Donovan, 429 U.S. 413, 433-434 (1977) (quoting United States v. Giordano, 416 U.S. 505, 527 (1974)).

In Chavez, the Court held that suppression was not required even though the wiretap application and order "did not correctly identify the individual authorizing the application, as 18 U.S.C. § 2518(1)(a) and (4)(d) require," 416 U.S. at 570, because the Attorney General had in fact authorized the application. Id. at 571-573. The Court contrasted its holding with that in Giordano, where it held that wiretap evidence must be suppressed because the application was "in fact, not authorized by one of the statutorily designated officials." 416 U.S. at 508; see Chavez, 416 U.S. at 571. Unlike the require ment that only certain officials "responsive to the politi cal process" authorize wiretap applications, Giordano, 416 U.S. at 520, which was a "critical precondition" to any judicial order, id. at 516, the requirements that the authorizing official be identified in the wiretap applica tion and order merely serve a "reporting function," Chavez, 416 U.S. at 579, and were not intended "to oc cupy a central, or even functional, role in guarding against unwarranted use" of wiretaps. Id. at 578.

Although the wiretap order in Chavez identified, al beit incorrectly, a qualified official as the person who authorized the application, 416 U.S. at 573-574, the Court's reasoning suggests that where a statutorily des ignated official has in fact authorized a wiretap applica tion, failure to comply with "reporting procedures," id. at 573, that do not play a "substantive role * * * in the regulatory system" does not warrant suppression of the wiretap evidence. Id. at 578-579. Here, the district court found that AUSA Sierleja "actually received au thorization from a specially-designated Justice Depart ment official" before submitting the wiretap application, Pet. App. 65a, 77a, and the district court judge was ap prised of that authorization before he issued the wiretap order, id. at 65a, 78a. See id. at 21a (affirming district court's factual findings). The court of appeals thus cor rectly concluded that the failure of the application and order to identify the authorizing official did not under mine the "essential safeguards of Title III," id. at 22a, and that suppression of the evidence was unwarranted, id. at 23a.

b. In accord with the decision of the court of appeals in this case, other circuits have held that not every facial insufficiency of a wiretap order requires suppression of evidence obtained pursuant to that order. See United States v. Radcliff, 331 F.3d 1153, 1162 (10th Cir.) ("[Sec tion] 2518(10)(a)(ii) does not require suppression if the facial insufficiency of the wiretap order is no more than a technical defect.") (quoting United States v. Moore, 41 F.3d 370, 374 (8th Cir. 1994), cert. denied, 514 U.S. 1121 (1995), and citing cases from the Third, Fifth, Sixth, Seventh, and Ninth Circuits), cert. denied, 540 U.S. 973 (2003). Thus, courts have concluded that suppression is not warranted when a wiretap order either mistaken ly identifies a Justice Department official who could not legally authorize the wiretap, or- as in this case- identifies no official at all, so long as a statutorily desig nated official actually gave the authorization. See Uni ted States v. Callum, 410 F.3d 571, 576 (9th Cir.) (failure to identify any approving official in wiretap order is "a minor insufficiency for which suppression is not the ap propriate remedy"), cert. denied, 546 U.S. 929 (2005); Radcliff, 331 F.3d at 1163 ("facial insufficiency" of wire tap orders in failing to identify specific individuals who approved application was a "technical defect that did not disrupt the purposes of the wiretap statute or cause any prejudice" to the defendant); United States v. Fudge, 325 F.3d 910, 918 (7th Cir. 2003) (same); United States v. Lawson, 545 F.2d 557, 562-563 (7th Cir. 1975) (facial insufficiency of application indicating approval by offi cial not statutorily authorized to approve wiretaps was "too technical to require suppression" where Attorney General actually approved application), cert. denied, 424 U.S. 927 (1976); United States v. Swann, 526 F.2d 147, 149 (9th Cir. 1975) (per curiam) (same); United States v. Acon, 513 F.2d 513, 516-519 (3d Cir. 1975) (same).

Petitioner contends (Pet. 4, 9-15), however, that the decision in this case conflicts with the Ninth Cir cuit's decision in United States v. Staffeldt, 451 F.3d 578 (2006). In Staffeldt, the Ninth Circuit held that suppres sion was required where the wiretap application identi fied the authorizing official by reference to an attached letter that authorized a wiretap application in an unre lated case from a different district, and the district court issued the wiretap order with the same unrelated autho rization letter attached. Id. at 579-581. The court rec ognized that "[n]ot every facial insufficiency in an appli cation requires a court to suppress the wiretap evi dence." Id. at 584 (quoting Acon, 513 F.3d at 517). It nevertheless concluded that suppression was warranted on the particular facts of that case because the applica tion "fail[ed] to show that it was authorized at all by the Justice Department: All that a judge can tell from re viewing it is that an application to wiretap another per son was approved." Ibid. The court distinguished its earlier decisions in Swann and Callum on the ground that those cases involved only "the identity of the autho rizing official, not * * * the fact of authorization it self." Id. at 585.

Although the United States disagrees with the Ninth Circuit's decision in Staffeldt, the decision below does not implicate any conflict with the Ninth Circuit. As noted above (pp. 9-10, supra), the Ninth Circuit in Callum held that suppression was not warranted when (as here) the facial insufficiency in the order is that it "list[s] no official at all." 410 F.3d at 576. And, as the court below concluded (Pet. App. 22a n.3), Staffeldt is "readily distinguishable" here: "Judge Oliver had notice that a qualified 'specially designated' official had ap proved the application before his perusal and approval of the order." Id. at 22a; see id. at 77a-78a. Thus, the courts below concluded that "the omission of that infor mation from the application and order could not have affected the decision to grant the wiretap." Id. at 22a n.3; see id. at 78a-80a.1

2. Petitioner also contends (Pet. 5-6, 17-34) that this Court should grant review to resolve a conflict in the circuits as to the proof required to convict a private indi vidual of conspiring with or aiding and abetting a public official in committing extortion "under color of official right," in violation of the Hobbs Act. Resolution of any conflict would not benefit petitioner, however, because he agrees with the standard adopted by the court of ap peals. Further review is not warranted.

In United States v. Brock, 501 F.3d 762 (2007), the Sixth Circuit held that private citizens who pay bribes to public officials-whether they are "perpetrators, acqui escors, [or] victims" in the bribery scheme-may not be convicted under the Hobbs Act of conspiring to extort their "own property," with "their own consent." Id. at 768-771. In so holding, however, the court reaffirmed that private individuals may be prosecuted for "violating the Hobbs Act when they conspire with public officials or aid and abet them in an extortion scheme," so long as the "'property from another' and 'with his consent' re quirements" are satisfied. Id. at 768-769 (citing United States v. Collins, 78 F.3d 1021, 1032 (6th Cir.), cert. de nied, 519 U.S. 872 (1996), and United States v. Kelley, 461 F.3d 817, 826 (6th Cir. 2006)).

As petitioner notes (Pet. 18-30), other courts of ap peals have concluded that a private citizen may be pros ecuted under the Hobbs Act for bribing a public official if the "payor's conduct constitutes sufficient activity beyond the mere acquiescence of a victim" of an extor tion scheme. United States v. Spitler, 800 F.2d 1267, 1278 (4th Cir. 1986); see, e.g., United States v. Cornier- Ortiz, 361 F.3d 29, 40 (1st Cir. 2004) (affirming Hobbs Act conviction of private citizen who "did more than merely acquiesce" in extortion scheme); United States v. Tillem, 906 F.2d 814, 823-824 (2d Cir. 1990) (reversing Hobbs Act conviction where government failed to prove that defendant "promoted the conspiracy and had a stake in its outcome"). While the Sixth Circuit in Brock rejected a "dichotomy" between "perpetrators" and "vic tims" of extortion schemes, 501 F.3d at 770-771, it also noted that "the primary debate" in decisions from other circuits "did not concern the 'property from another' requirement" that the court interpreted in Brock. Id. at 770-771. No other court of appeals has yet considered the Sixth Circuit's holding in Brock. Thus, even if the disagreement otherwise warranted this Court's atten tion, review would be premature.

In any event, this case would be a poor vehicle for that review because petitioner already has received the benefit of the Sixth Circuit's narrow reading of the Hobbs Act. The court of appeals applied its rule from Brock to reverse three of petitioner's Hobbs Act convic tions. See Pet. App. 34a-50a; id. at 52a (government "did not meet [its] burden" under Brock with respect to three of the counts on which petitioner was convicted). That is precisely the rule that petitioner now contends is "correct." Pet. 30; see Pet. 34 (Brock "states the most workable and statutorily supported rule"). Petitioner- who was undoubtedly a "perpetrator," rather than a "victim," of the extortion schemes involving Onunwor and McGilbra-would not have fared better under the decisions he cites from other circuits.2 Accordingly, this case does not present an appropriate vehicle for resolv ing any conflict among the circuits.

Petitioner disagrees (Pet. 30, 32) with the court of appeals' application of Brock to his case, but that fact bound issue does not warrant this Court's review. As the court of appeals concluded (Pet. App. 39a-47a), there was ample evidence that petitioner aided and abetted public officials' extortion schemes by funneling bribes from third parties. In any event, any tension between the Sixth Circuit's decision in this case and its earlier decision in Brock would be a matter for that court to resolve. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
NINA GOODMAN
Attorney

MAY 2009

1 Contrary to petitioner's suggestion (Pet. 14-15), the court of ap peals did not conclude that AUSA Sierleja's statement to the district court was "sufficient to fix the facial insufficiencies" in the wiretap ap plication and order. The only question before the court was whether the government's "admitted noncompliance" with the identification pro visions warranted suppression of the wiretap evidence. Pet. App. 15a, 22a-23a.

2 Petitioner contends (Pet. 30-32) that his conduct was "factually in distinguishable" from that in Tillem, in which the Second Circuit re versed the Hobbs Act conviction of a defendant who "operated as a con duit through which" public officials extorted money from businesses. 906 F.2d at 823. The Second Circuit emphasized, however, that there was no evidence that the defendant in Tillem participated in the extor tion scheme and "had a stake in its outcome." Ibid. In contrast, as the court of appeals concluded with respect to the convictions it affirmed, petitioner was actively involved here. See Pet. App. 34a-47a.