KENNETH DAVIS, PETITIONER V. UNITED STATES OF AMERICA HOWARD RANSOM, PETITIONER V. UNITED STATES OF AMERICA DUANE DAVIS, PETITIONER V. UNITED STATES OF AMERICA ALICIA DAVIS, PETITIONER V. UNITED STATES OF AMERICA No. 86-6500, 86-6522, 86-6530 and 86-6792 In the Supreme Court of the United States October Term, 1986 On Petitions for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the United States in Opposition OPINION BELOW The opinion of the court of appeals (86-6500 Pet. App. 2-25) is reported at 809 F.2d 1194. JURISDICTION The judgment of the court of appeals was entered on January 15, 1987. The petition for a writ of certiorari in No. 86-6500 was filed on March 10, 1987. The petition in No. 86-6522 was filed on March 13, 1987. The petition in No. 86-6530 was filed on March 14, 1987. The petition in No. 86-6792 was not filed until April 20, 1987, and is therefore out of time under Rule 20.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly determined after an ex parte proceeding that the government had not exercised its peremptory challenges for the purpose of discriminating against black venirepersons. 2. Whether the evidence was sufficient to support the convictions of petitioners Duane Davis and Kenneth Davis. 3. Whether the district court properly denied petitioners' severance motions. 4. Whether the separate convictions and sentences on the charge of conspiracy to possess heroin with intent to distribute it and the charge of conspiracy to import heroin violated the Double Jeopardy Clause. 5. Whether the delay between the arrest and indictment of petitioner Duane Davis violated the Due Process Clause. 6. Whether the district court properly admitted certain evidence at trial. 7. Whether the government improperly vouched for a government witness. 8. Whether petitioners are entitled to a new trial on grounds of pretrial publicity. 9. Whether the government engaged in improper conduct in the investigation of the case. STATEMENT Following an eight-week jury trial in the United States District Court for the Eastern District of Michigan (Cook, J.), petitioners were each convicted on one count of conspiracy to distribute heroin and to possess heroin with intent to distribute it, in violation of 21 U.S.C. 846, and on one count of conspiracy to import heroin, in violation of 21 U.S.C. 963. /1/ Petitioner Kenneth Davis was also convicted on ten substantive counts of distributing heroin or possessing heroin with intent to distribute it, in violation of 21 U.S.C. 841, and 12 counts of using a telephone to facilitate the heroin conspiracy, in violation of 21 U.S.C. 843(b). Petitioner Duane Davis was also convicted on one count of possession of heroin with intent to distribute it and one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848. Petitioner Alicia Davis was also convicted on one count of using a telephone to facilitate the heroin conspiracy. Kenneth Davis was sentenced to a total of ten years' imprisonment and a four-year special parole term. Duane Davis was sentenced to a total of 25 years' imprisonment, a three-year special parole term, and a $50,000 fine. Howard Ransom was sentenced to a total of 15 years' imprisonment and a $50,000 fine. And Alicia Davis was sentenced to a total of six years' imprisonment. 1. a. The evidence at trial showed that petitioners were the primary participants in a multi-million dollar heroin importation and trafficking organization that operated between October 1979 and August 1982. Pet. App. 3. /2/ In the Netherlands, petitioner Harold Ransom supplied large quantities of heroin to the organization, which smuggled the heroin by courier to petitioner Duane Davis in Detroit, Michigan. Duane Davis's wife Alicia recruited a courier to take cash to Ransom in the Netherlands and to bring heroin to Detroit. Petitioner Kenneth Davis sold the heroin wholesale to the organization's customers. Pet. App. 3-4. b. All four petitioners are black. /3/ During the jury selection process, the district court swore in and examined 86 prospective jurors. Nine of the 86 venirepersons were black. Two of the nine were excused, one for illness and one by agreement of the parties. 3 Tr. 68. Petitioners were allowed a total of 36 peremptory challenges, and the government was allowed 20. Gov't C.A. Br. 9. The government did not challenge any of the jurors for cause; petitioners' only challenge for cause was denied. Pet. App. 4. After the government struck eight prospective jurors, three of whom were black, /4/ petitioners objected that it was "fairly obvious that the Government (was) making a concerted attempt to exclude any members of the black race from this jury panel." Ibid. The government responded that it was entitled under Swain v. Alabama, 380 U.S. 202, 222 (1965), to a presumption that it would seek a fair and impartial jury. Pet. App. 3. /5/ The court took the issue under advisement. During two additional rounds of peremptory challenges the government challenged the four blacks remaining in the venire. The district court took a second challenge to the government's actions under advisement. Thereafter, petitioners moved for a mistrial on the ground that the exclusion of blacks from the jury violated petitioners' right to an impartial jury free of discrimination on the basis of race. The district court adopted a two-step procedure for evaluating that claim. First, the court held that it would review the facts to determine whether there was a prima facie basis for the complaint of discrimination. Second, the court ruled that if it found such a basis, it would require the government, in a non-adversarial setting, to give reasons for its peremptory challenges against blacks. Pet. App. 5. Because all the black prospective jurors had been excluded from the jury, the district court found that petitioners had met their burden of establishing a prima facie case of a constitutional violation. 4 Tr. 29-30. Acceding to the government's request and over the objections of petitioners, the court then allowed the government to state the reasons for its peremptory challenges at an in camera hearing on the record. 4 Tr. 39-48. The court stated that after it held the hearing, it would determine what portions, if any, of the hearing should be disclosed to the defendants and the procedure to be used in making any such disclosure. Id. at 47-48; Pet. App. 5. The court recognized that "the reasons for the exercise of the peremptory challenges may not be as detailed and/or as compelling as those reasons used for a challenge for cause, but that the reasons for the peremptory challenge should be for good cause, and that they are genuine and not related to race." 4 Tr. 50. Thereafter, the district court held an ex parte in camera hearing at which the prosecutors described their evaluation of potential jurors and their reasons for the exercise of each of their 19 peremptory challenges to black and white prospective jurors. Pet. App. 5; 4 Tr. 55. /6/ In open court, the district court stated that it found that the criteria employed by the government "represent the kind of criteria and factors that all counsel would utilize in assessing the qualifications of a juror" and expressed "the belief the reasons as set forth (for challenging each of the jurors) were not grounded or based upon racial considerations" (4 Tr. 56-57). The court also declined to publish the government's reasons for its challenges, stating that (t)he disclosure of the Government's reasons for excluding the 19 jurors, including those black persons, would not, in the judgment of this Court, be meritorious. Moreover, this Court does not believe that the publication of the reasons, either in summary fashion or in a very detailed fashion, such as the exposure and the recitation of the statements of counsel in open court, would enhance the administration of justice. 4 Tr. 57-58; Pet. App. 6. The court also stated that it "made its determination that the constitutional rights of each of the Defendants in this case was paramount to the right of the Government to secret itself * * * from exploration into its reasons for the jury selection." 4 Tr. 59. Petitioners' request for an evidentiary or adversarial hearing was rejected and their motion for a mistrial was denied. Ibid. 2. The court of appeals affirmed. It rejected petitioners' contentions that the ex parte in camera hearing violated their right to be present at trial under the Sixth Amendment and Fed. R. Crim. P. 43 (Pet. App. 6-10). The court declined to adopt a per se rule that a defendant is entitled to be present at a hearing on the government's reasons for its peremptory challenges. It found that the procedures employed by the district court in permitting petitioners to argue their claims that the peremptory challenges were racially motivated and for hearing the government's reasons for those challenges were not unfair. Petitioners' presence was not constitutionally required, the court held, once they made a prima facie case of discrimination sufficient to warrant an inquiry by the court. The court of appeals found that the district court was then required to make its determination on the merits of petitioners' claim after giving the government whatever opportunity to respond that it believed was appropriate, and that petitioners' presence was not required for that purpose. The court of appeals also found that there was no violation of Fed. R. Crim. P. 43 as a result of the district court's refusal to put the government's reasons for the challenges on the record, since the procedure followed by the district court gave petitioners an ample opportunity to defend their interests. Pet. App. 9-10. The court of appeals stated further that even if there were a violation of Rule 43, any such error was harmless under Fed. R. Crim. P. 52 in light of its examination of the transcript of the in camera hearing and its finding that there was no prejudice from the absence of defense counsel. The court of appeals found that the reasons the government gave for its peremptory challenges "were applicable to black and white venirepersons alike." Thus, the court of appeals held, the district court correctly found that the challenges were non-discriminatory and therefore properly denied the motion for a mistrial. ARGUMENT 1. Petitioners contend (86-6500 Pet. 6-14; 86-6522 Pet. 8-9; 86-6530 Pet. 7-8, 16-20; 86-6792 Pet. 6-12) that the government improperly sought to remove blacks from their jury and that the ex parte proceeding at which the government gave its reasons for its peremptory challenges violated petitioners' Sixth Amendment right to confront witnesses, their Fifth Amendment right to due process, and their right to be present at trial proceedings under Fed. R. Crim. P. 43(b). Although the trial in this case took place before this Court's decision in Batson v. Kentucky, supra, the district court's disposition of the challenge to the government's exercise of peremptory challenges was consistent with the guidelines this Court subsequently laid down in Batson. While a prosecutor ordinarily may exercise peremptory challenges for any reason related to the case, this Court held in Batson, slip op. 8-9, that the Equal Protection Clause "forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." Under Batson, a defendant in a criminal case makes a prima facie showing of purposeful discrimination in the selection of his petit jury if he points to facts that raise an inference that the prosecutor used peremptory challenges to exclude venirepersons on account of their race. In deciding whether the defendant has made a prima facie showing of discrimination, the trial court is required to consider "all relevant circumstances," including, for example, a pattern of peremptory challenges of blacks from the venire. Batson, slip op. 16. If the defendant establishes a prima facie case of discrimination, "the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Batson, slip op. 16. After the prosecutor gives his explanation, the trial court must then determine if the defendant has established purposeful discrimination. The Court in Batson expressly declined to adopt particular procedures that the trial court must follow in making that factual determination. Batson, slip op. 17-19. As the court of appeals held, the district court's finding that the government did not purposefully discriminate against black venirepersons was not clearly erroneous. The district court also did not depart from appropriate procedures in making that determination. In anticipation of this Court's decision in Batson, the district court found that the fact that the government had used its peremptory challenges to exclude all the black venirepersons from the jury raised an inference of discrimination that shifted the burden to the government to establish that the challenges were not racially motivated. The court then gave the government an opportunity to provide a "neutral explanation" for its challenges. The government explained the reasons for its challenges of both whites and blacks; that explanation satisfied both the district court and the court of appeals that the government applied the same standards to challenges of white and black potential jurors alike. Pet. App. 11. The district court made detailed findings on the record, and the court gave petitioners ample opportunity to argue their position that the government's challenges were improperly motivated, even though the defendants were not given access to the transcript of the in camera hearing at which the government gave the reasons for its challenges. Under these circumstances, we submit that the requirements of Batson were satisfied and that further review is unwarranted. Petitioners are incorrect in asserting that the district court should have taken the government's statement in open court or published a transcript of the in camera proceeding at which the government gave the reasons for its peremptory challenges. A defendant's constitutional right to be present at trial proceedings is rooted in part in the defendant's right under the Sixth Amendment to be confronted by the witnesses against him. See United States v. Gagnon, 470 U.S. 522 (1985); Illinois v. Allen, 397 U.S. 337, 338 (1970). That right is inapplicable here, because no witness testified at the hearing. Nor did the Due Process Clause give petitioners a right to be present at the in camera session. As this Court stated in Gagnon, "a defendant has a due process right to be present at a proceeding 'whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge * * * . (T)he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" Gagnon, 470 U.S. at 526, quoting Snyder v. Massachusetts, 291 U.S. 97, 105-106, 107-108 (1934). Here, as the court of appeals found, petitioners' presence at the in camera proceeding was not essential to a fair resolution of their Batson claim. Once a defendant has made a prima facie showing of discrimination , the government must provide an explanation for its peremptory challenges, but there is nothing in the language or the reasoning of Batson to suggest that the government's explanation must be made in public or disclosed to the defense. The reasons for the government's peremptory challenges might disclose the government's trial strategy or aspects of its case that the prosecutor believed to be vulnerable. Beyond that, the government's explanation might reflect a candid assessment of a juror's character or other personal information regarding a juror, the disclosure of which might unnecessarily embarrass the potential juror. Holding the proceeding in open court or disclosing the transcript might well discourage full and candid disclosure by the prosecutor of the reasons for particular peremptory challenges. It would therefore be contrary to the policies of Batson to require the prosecutor's explanation to be disclosed to the defense in every case. Instead, it is sufficient that the district court must satisfy itself that the prosecutor was not acting with a discriminatory motive and that the record on which the court bases that finding must be available for review. Where the district court is able to make a finding, on the basis of an explanation in the record, that the prosecutor was acting for non-discriminatory reasons, it is not essential to the fairness of the proceeding or the accuracy of that determination that the prosecutor's explanation be disclosed to the defendant or his attorney in every case. /7/ Petitioners are also incorrect in claiming that the ex parte hearing violated their right to be present under Fed. R. Crim. P. 43. Under Rule 43, the defendant is entitled to be present "at every stage of the trial including the impaneling of the jury." The Advisory Committee notes on the rule state that the reference to impaneling the jury is a codification of current law, citing Lewis v. United States, 146 U.S. 370 (1892). Rule 43 Advisory Committee note, 18 U.S.C. at 646. In Lewis, the Court held that the peremptory challenges of potential jurors must be made in the presence of the defendant so that the defendant is brought fact to face with the potential juror and can participate personally in the decision whether to challenge him. Lewis v. United States, 146 U.S. at 375-377. The in camera proceeding here occurred after the peremptory challenges were made in the presence of petitioners, and involved only the legal sufficiency of the government's reasons for challenging prospective jurors. Thus, the proceeding in this case was not part of the jury selection process itself, but was more like "a conference or argument upon a question of law" (Fed. R. Crim. P. 43(c)(3)), at which the defendant has no right to be present. In any event, as the court of appeals found (Pet. App. 10), any error in the exclusion of petitioners from the proceeding was harmless under the circumstances of this case, since it was highly unlikely that their presence could have affected the result. Cf. Rogers v. United States, 422 U.S. 35, 40 (1975); United States v. Alessandrello, 637 F.2d 131, 141 (3d Cir. 1980). No other court of appeals has addressed the question whether an in camera proceeding is appropriate for considering a Batson challenge. The procedures employed here were consistent with the policies of Batson and constituted a reasonable accommodation of the competing interests of the defense and the prosecution. In the absence of any conflict among the circuits on the question presented here, there is no need for any further review. 2. Petitioner Duane Davis contends (86-6530 Pet. 13-15) that there was insufficient evidence to convict him on the continuing criminal enterprise count. Petitioner Kenneth Davis claims (86-6500 Pet. 27-28) that there was insufficient evidence to convict him of the conspiracy to import heroin. /8/ To prove the offense of conducting a continuing criminal enterprise, the government must show that the defendant committed a federal drug felony, that he undertook the offense in concert with five or more other persons, that he acted in a supervisory capacity as to those persons, and that he obtained substantial income from the violation. 21 U.S.C. 848(b). As the court of appeals stated (Pet. App. 13-14): (A) rational trier of fact could have found beyond a reasonable doubt that Duane Davis coordinated the activities of his wife, Alicia Davis, Cynthia High (a courier), Howard Ransom (the contact in the Netherlands), and his brothers Kenneth Davis and Reginald "Doc" Davis. These five persons were coordinated by Duane Davis towards the goal of transporting heroin from the Netherlands to the Davis family for sale and distribution. Government witnesses testified that Duane Davis arranged for Cynthia High's travel to Amsterdam, provided money for her expenses and supplied the money for Ransom. Davis also gave High a list of names and addresses. The evidence shows that Duane Davis had contacted Ransom in the Netherlands to set up (an) importing scheme for the rest of the organization. The heroin was delivered to Duane Davis' home and he took possession of it after delivery. There was also ample circumstantial evidence from which the jury could find that Duane Davis obtained substantial income or resources from illegal drug activities: Kenneth Davis told an undercover agent his relatives owned millions of dollars worth of real estate in California and the Detroit area (6 Tr. 102-103); the organization regularly sold heroin to undercover agents (9 Tr. 27-33; 8A Tr. 27-28); Duane Davis offered to pay Ransom $10,000 for an introduction (22 Tr. 47-50); he paid High's travel expenses to Amsterdam and gave her $15,000 to give to Ransom (22 Tr. 54-55); and Ransom told High that he and another man had buried $400,000 of Duane Davis's money (22 Tr. 85). /9/ The evidence was also sufficient to establish Kenneth Davis's involvement in the conspiracy to import heroin. As the court of appeals stated (Pet. App. 15): The record shows that Kenneth Davis had promised to describe to an undercover agent how his heroin smuggling operation operated and had indicated what color (brown) the smuggled heroin would be before the organization's heroin shipment was seized by the federal authorities seven months later. Kenneth Davis also had sold heroin to three undercover agents of the Drug Enforcement Administration. That evidence was sufficient to tie Kenneth Davis to the conspiracy to import heroin. Even the evidence recited by Davis himself shows his connection with the importation phase of the operation. As Kenneth Davis admits (Pet. 24), he told the undercover DEA agent that the heroin he was selling came from Amsterdam, and that "(Davis's) organization smuggled heroin into the United States from different geographical locations." Thus, Kenneth Davis was aware of, and dependent upon, the organization's ability to import large quantities of heroin from its overseas sources. He was therefore properly charged with participation in the importation portion of the operation as well as the distribution phase. 3. Petitioners contend (86-6500 Pet. 21-27; 86-6522 Pet. 17-20; 86-6530 Pet. 17) that the district court improperly denied their motions for a severance; they claim that the charges against them were misjoined for trial under Fed. R. Crim. P. 8(b). Petitioners base their misjoinder claim on the fact that most of the evidence against Duane Davis and Harold Ransom related to the importation of heroin and most of the evidence against Kenneth Davis related to the distribution phase of the operation. The misjoinder claims are wholly without merit. Petitioners were each charged with participating in both the distribution and importation conspiracies; it was therefore entirely proper for them to be joined for trial. Rule 8(b) of the Federal Rules of Criminal Procedure permits the joinder of multiple defendants if they are "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." The clearest case of participation in the same series of acts or transactions is where, as here, the defendants are charged in the same counts with the same offenses. Nor is there any force to petitioners' claim that, apart from the misjoinder claim, the district court abused its discretion by refusing to grant their motions for separate trials. As this Court has recently noted, "joint trials 'conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.'" United States v. Lane, No. 84-747, slip op. 10 (Jan. 27, 1986), quoting Bruton v. United States, 391 U.S. 123, 134 (1968); see also Richardson v. Marsh, No. 85-1433 (Apr. 21, 1987), slip op. 9-10. This case presents a classic instance in which joint trials are appropriate: the defendants were charged with a series of offenses flowing from the two conspiracies in which all of them were charged, and the number of defendants and charges was small enough that the jury could be relied on to evaluate the evidence against each of the defendants separately. As the court of appeals noted, "the evidence show(ed) that at all times (petitioners) were 'conducting a regular business on a steady basis' under a 'loose knit organization' for the purpose of importing and distributing heroin" (Pet. App. 20 (citation omitted)). Furthermore, as the court of appeals stated, petitioners did not demonstrate that they were prejudiced by their joint trial; they asserted only that the evidence against other defendants was stronger as to some counts than it was against them. See Pet. App. 19. Under these circumstances, the district court did not abuse its discretion by denying petitioners' request for a severance. 4. Petitioner Howard Ransom contends (86-6522 Pet. 5-7) that it violated the Double Jeopardy Clause for the court to convict and sentence him separately for (1) conspiring to import heroin and (2) conspiring to distribute heroin and to possess heroin with intent to distribute it. As the court of appeals noted (Pet. App. 15-18), however, it is settled that a defendant may be separately convicted and sentenced for conspiring to import drugs and conspiring to distribute them. Albernaz v. United States, 450 U.S. 333 (1981). The Court stated in Albernaz that conspiracy to import drugs (21 U.S.C. 963) and conspiracy to distribute them (21 U.S.C. 846) necessarily involve proof of different facts, because they "specify different ends as the proscribed object of the conspiracy -- distribution as opposed to importation" (450 U.S. at 339). Petitioner's attempt to distinguish Albernaz on the ground that the acts of importation and distribution in this case "are identical" (86-6522 Pet. 5) is without merit. Albernaz by its terms recognizes that the acts of importation and distribution are necessarily separate. Ransom argues that because the same evidence established his involvement in both conspiracies, he should not have been charged with both. That view ignores the fact that Ransom was shown to be a party to both conspiracies, even though the overt acts he committed related only to the importation phase of the operation. Because the evidence showed that Ransom's agreement to violate federal law extended not only to the importation but also to the distribution phase of the operation, he was properly convicted and sentenced in connection with both conspiracies. Ransom's reliance on Ball v. United States, 470 U.S. 856 (1985), and United States v. Jabara, 644 F.2d 574 (6th Cir. 1981), is misplaced. In Ball, the Court held that a defendant with a previous felony conviction could not be sentenced for both receiving and possessing a firearm, in violation of 18 U.S.C. 922(h) and 18 U.S.C. App. 1202(a), because "proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon." 470 U.S. at 862 (emphasis in original). By contrast, importation and distribution of drugs are necessarily distinct acts. In Jabara, the court of appeals upheld a district court's determination that a defendant previously convicted of a drug distribution conspiracy could not be prosecuted in another district court for a drug distribution conspiracy that the court found as a matter of fact was the same conspiracy. Here, as a matter of law, the conspiracy to import drugs and the conspiracy to distribute drugs were properly treated as separate crimes because the two offenses have different criminal objectives. 5. Petitioner Duane Davis contends (86-6530 Pet. 16-17) that a one-year delay between his initial arrest and release in August 1982 and his indictment in August 1983 violated his right to due process and that his motion to dismiss the indictment should have been granted. In United States v. Marion, 404 U.S. 307 (1971), The Court found that there was no violation of due process where the defendants were indicted 38 months after the end of the charged scheme but within the statute of limitations. The Court in that case found no violation because there was no showing of actual prejudice to the defendants or intentional delay by the government to gain a tactical advantage. In this case, Davis has not alleged actual prejudice or intentional delay, and the period between the dismissal of the complaint and the filing of an indictment was only one year. As the court of appeals held (Pet. App. 26), petitioner's claim is therefore meritless. 6. Petitioners raise numerous challenges to the admission of evidence at trial (86-6500 Pet. 14-21; 86-6522 Pet. 9-12, 16-17; 86-6530 Pet. 8-12, 17-18). The court of appeals properly rejected each of those claims. We discuss each of the evidentiary contentions briefly below. a. Petitioner Kenneth Davis contends (86-6500 Pet. 14-21 that the district court improperly admitted certain evidence against him. At the first trial in this case, the jury acquitted Kenneth Davis on four of the 26 substantive counts and was unable to reach a verdict with regard to the remaining 22 substantive counts and the two conspiracy counts. Davis relied on an entrapment defense at the first trial, as he did at the second trial. Prior to the second trial, Davis moved to exclude all the evidence relating to the four substantive acts on which the first jury had acquitted him. The district court denied the motion. Instead, the court admitted the evidence of the four substantive acts both to establish the commission of overt acts in furtherance of the two conspiracies and, under Fed. R. Evid. 404(b), to assist the jury in assessing Davis's claim of entrapment with respect to the remaining charges against him. /10/ The doctrine of collateral estoppel applies in a second trial if the jury necessarily resolved the same factual issue in the defendant's favor in the first trial. Ashe v. Swenson, 397 U.S. 436, 444 (1970). The court of appeals held that the doctrine has no application here because the jury in the first trial "decided * * * that though Davis committed the acts necessary for criminal liability, he was innocent of wrongdoing" because the jury accepted his entrapment defense with respect to those four substantive offenses. Pet. App. 17-18. The evidence of the four substantive acts at the second trial was admissible, the court held, because the admission of that evidence for the particular purposes for which it was offered was not inconsistent with the jury's acquittal of Davis on the four substantive charges at the first trial. The court pointed out that in light of Davis's reliance on an entrapment defense, the jury apparently acquitted him on the four substantive counts not because it did not believe he had committed those acts, but because it believed he was entrapped. Because overt acts need not be unlawful, the court of appeals concluded, the government had not made an improper use of the evidence relating to the counts on which the first jury had concluded Davis was entrapped. Petitioner is correct that the Third Circuit would not have permitted the admission of the evidence at issue in this case. That court in United States v. Keller, 624 F.2d 1154, 1160 (3d Cir. 1980), held that the doctrine of collateral estoppel bars any use at a second trial of evidence of crimes for which the defendant has previously been acquitted. Specifically, the court in Keller rejected the government's argument that the doctrine did not apply, because the acquittal at the first trial was based on the defendant's successful entrapment defense rather than on a finding by the jury that the defendant had not engaged in the charged conduct. This is not an appropriate case in which to resolve the conflict among the circuits on this point. Kenneth Davis was convicted at the second trial on 22 substantive counts relating to drug trafficking activities; the acts underlying many of those counts were also charged as overt acts supporting the two conspiracy counts. Thus, even if the district court should not have admitted the evidence relating to the four substantive counts on which Kenneth Davis was acquitted at the first trial, the jury's verdicts plainly indicate that it found that petitioner and his co-conspirators had committed many other overt acts in furtherance of the conspiracy. It is inconceivable that the case would have been resolved differently if the district court had struck from Count 1 of the second indictment the three overt acts that related to the substantive counts on which petitioner was acquitted in the first trial. Moreover, the disposition of petitioner's collateral estoppel claim would not have had a significant effect on the strength of the case against Kenneth Davis, since at most he would have been entitled to have evidence related to one distribution and two telephone calls excluded at the second trial. The government still would have been able to introduce the evidence of the conversation that let up to the October 26, 1979, heroin sale as well as seven of the eight telephone conversations and the two heroin distributions in which Kenneth Davis participated on March 18, 1980. b. Petitioner Duane Davis contends (86-6500 Pet. 7, 11-12) that the district court improperly admitted statements he made to law enforcement officers after his arrest. At the time of his arrest, Duane Davis was twice advised of his Miranda rights. Pet. App. 22 n.10. He asked his girlfriend to call his mother and his attorney to tell them that he had been arrested. After being transported to the federal building he was again advised on his Miranda rights. He never requested an attorney. Pet. App. 22 n.10. Thereafter, according to testimony of DEA agents, Davis said that Reginald Davis had invested $600,000 in real estate but that the deals had soured because of the federal investigation. Davis later denied making those statements. Ibid. Both the district court and the court of appeals found that Davis had been fully advised of his rights and had voluntarily and intelligently waived them. Davis provides no reason to question those concurrent factual findings. c. Petitioner Howard Ransom likewise contends (86-6522 Pet. 9-12) that a statement he made before trial should not have been admitted. Before arraignment, a magistrate ordered that Howard Ransom not be questioned before he had counsel to advise him of his rights. Pet. App. 20-21 n.9. At arraignment, the magistrate informed Ransom of his rights. Ransom was represented at arraignment by counsel, and he consulted with counsel after the proceeding (29 Tr. 121). He was then processed and questioned briefly by a DEA agent who first read him his Miranda rights. Ransom did not request that his attorney be present at that time. In the course of the routine post-arraignment processing, Ranson made a remark to the DEA agent in which he admitted that he knew several participants in the conspiracy. Ranson failed to file a pretrial motion to suppress under Fed. R. Crim. P. 12(b). Nevertheless, the district court considered the question whether Ransom's statements were voluntary (29 Tr. 118). Both the district court and the court of appeals found that petitioner had validly waived his right to the presence of counsel. Pet. App. 21. The court of appeals also found that petitioner waived his right to object to the admission of the evidence by failing to file a timely motion to suppress. Ibid. In any event, even if the police officers acted improperly in questioning Ransom outside the presence of his counsel, the admission of Ransom's statements was harmless error. The evidence at trial -- including books and papers seized from Ransom as well as testimony from Cynthia High -- established beyond cavil that Ransom knew several of the participants in the conspiracy (see 31 Tr. 61-65). There is therefore no need for further review of this issue. d. Petitioner Duane Davis contends that physical evidence was improperly admitted in evidence (86-6530 Pet. 8-9, 17-18). Davis claims that the district court should have suppressed several cannisters of fake heroin that were found in his jeep when he was stopped and arrested without a warrant. The court of appeals found the claim to be without merit. Pet. App. 21. As the court of appeals noted, Davis's arrest followed a controlled delivery of three cannisters of fake heroin to Davis's house. Shortly after the delivery, Davis left his house wearing a coat that DEA agents suspected was being used to hide the cannisters of fake heroin. At that time, the DEA agents had ample evidence of Davis's illegal activities. When Davis was stopped in his jeep, the cannisters were in plain view in the passenger compartment. The cannisters were therefore lawfully seized incident to Davis's arrest. See Pet. App. 20. The court of appeals summarily rejected Duane Davis's claim that his passport was inadmissible because the government obtained it from the pretrial services office in violation of 18 U.S.C. 3153(c)(1), which bars pretrial services officers from disclosing certain information obtained from a defendant. The passport did not constitute information obtained from a defendant; rather, the passport was merely being held by the pretrial services office as part of Davis's bond condition to guarantee that he would not flee. In any event, there is no reasonable expectation of privacy in a passport, which is the property of the United States government and may be retrieved by subpoena at any time. See United States v. Praetorius, 622 F.2d 1054, 1062-1063 (2d Cir. 1979), cert. denied, 449 U.S. 860 (1980); United States v. Falley, 489 F.2d 33 (2d Cir. 1973). Finally, Davis failed to object to the admission of the passport at his first trial, and he did not object at the second trial until the trial had been under way for a month. Hence, Davis waived any objection to the admission of that evidence. Fed. R. Crim. P. 12(f). /11/ e. Petitioner Howard Ransom claims (86-6522 Pet. 16-17) that the district court improperly admitted statements of co-conspirators that were made before he joined the conspiracy. That claim is plainly without merit. As this Court stated in United States v. United States Gypsum Co., 333 U.S. 364, 393 (1948), "the declarations and acts of the various members, even though made or done prior to the adherence of some to the conspiracy, become admissible agianst all as declarations or acts of co-conspirators in aid of the conspiracy." Thus, as the court of appeals held (Pet. App. 19), even if the statements were made before Ransom joined the conspiracy, they were admissible against him. /12/ 7. Petitioner Howard Ransom contends (86-6522 Pet. 12-16) that the prosecutor improperly vouched for the credibility of government witness Cynthia High during trial and in closing argument, and that defense counsel's closing argument was improperly limited by the district court. The court of appeals properly sustained the admission of evidence regarding the steps taken by DEA agents to assure the reliability of Cynthia High. The court found (Pet. App. 25) that "the evidence * * * was proper rebuttal evidence of what the defendants had been attempting to prove earlier in the trial: that the Government's methods of assessing the credibility and reliability of Ms. High were inadequate." Similarly, the court of appeals correctly rejected Ransom's claim that the government vouched for High's credibility when the prosecutor remarked that the government did not vouch for a defense witness, Ransom's girlfriend. The court of appeals found that the remark was a response to defense speculation about High's credibility, and that, in any event, Ransom did not demonstrate prejudice from the remark. Pet. App. 22. /13/ The court of appeals also correctly rejected Ransom's claim that he should have been permitted to pursue further his closing argument attacking High's credibility. Ransom's counsel argued at length that High was not credible (40 Tr. 110, 181, 121). The government objected to the argument when defense counsel began to speculate about the kind of deal the government might have given High under other circumstances. The court of appeals held that the district court had properly sustained the government's objection on the ground that the argument was based on facts not in evidence. Pet. App. 23. 8. The court of appeals found that petitioner Ransom waived his claim (86-6522 Pet. 7-8) that there was prejudicial pretrial publicity because of a grand jury leak (Pet. App. 23-24). See also 86-6530 Pet. 17. As the court of appeals held, the issue was not preserved on appeal. The newspaper article in question, which was published a year before the trial, was never made part of the record, and petitioner filed no motion for change of venue or to dismiss on grounds of prejudicial publicity. /14/ The question does not merit the attention of the Court. 9. Finally, Petitioner Duane Davis challenges (86-6530 Pet. 18-19) as "outrageous" the government's conduct when undercover agents gave Kenneth Davis and Reginald Davis three Dilaudid pills in order to arrange an exchange of the pills for heroin. The court of appeals held that the issue was waived on appeal because no motion to dismiss was filed. Pet. App. 24. In any event, the court of appeals addressed the merits and correctly found that the agents' conduct in providing drugs to the defendants as part of the undercover investigation was routine and entirely proper in such investigations. Ibid. If undercover agents could not deal in narcotics, undercover operations would hardly be of much use in narcotics investigations, the field in which undercover operations are most widely used and most essential. CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM F. WELD Assistant Attorney General KAREN SKRIVSETH Attorney MAY 1987 /1/ Petitioners' co-defendant Reginald Davis is a fugitive. Co-defendant Judy Kasco pleaded guilty. /2/ All references to "Pet. App." are to the appendix to the petition in No. 86-6500. /3/ A number of other participants in the case are also black, including the district court judge, the prosecutor, the case agent, several key government witnesses, and the author of the court of appeals' opinion. See 4 Tr. 34. /4/ At that point, petitioners had peremptorily challenged 10 potential jurors, all of them white. Pet. App. 4. /5/ The trial occurred before this Court's decisions in Batson v. Kentucky, No. 84-6263 (Apr. 30, 1986), and Griffith v. Kentucky, No. 85-5221 (Jan. 13, 1987). /6/ The district court sealed the transcript of the hearing, which remained sealed in the court of appeals. We have lodged a copy of the sealed transcript with the Clerk for the convenience of the Court. /7/ Neither the district court nor the court of appeals suggested that the prosecutor's statement of reasons should not be made public under any circumstances. We suggest only that the district court should retain the discretion, in appropriate cases, to review the prosecutor's explanation in a non-adversarial setting. If the prosecutor's explanation were questionable or if it appeared that the defendant's participation in a particular case would be necessary to a fair determination of whether the prosecutor was in fact engaged in discriminatory conduct, the district court would retain the discretion to require that the prosecutor's explanation be revealed to the defendant and that the defendant be given an opportunity to comment upon or challenge the prosecutor's explanation. In this case, where the record of the in camera hearing left both the district court and the court of appeals with no doubt rhat the prosecutor's motives were proper, the district court did not abuse its discretion by declining to reveal the details of the in camera proceeding to the defense. /8/ Kenneth Davis's claim is stated as presenting the question whether the proof varied from the charges in the indictment because there was no evidence to connect him to the importation conspiracy. In the court below, Kenneth Davis raised the same claim as a simple challenge to the sufficiency of the evidence against him (C.A. Br. 25-31), a more accurate characterization. /9/ Duane Davis's claim (Pet. 15) that the "substantial income" prong of 21 U.S.C. 848 is unconstitutionally vague is without merit. See, e.g., United States v. Dickens, 736 F.2d 571, 588 n.7 (10th Cir. 1984); United States v. Sperling, 506 F.2d 1323, 1343 (2d Cir. 1974); United States v. Collier, 493 F.2d 327, 329 (6th Cir.), cert. denied, 419 U.S. 831 (1974). His contention (Pet. 19) that his convictions violated the Double Jeopardy Clause are answered by the fact that the court of appeals vacated his convictions on the two conspiracy convictions after affirming his conviction on the continuing criminal enterprise count (Pet. App. 25). /10/ The first jury had acquitted Davis on substantive counts involving possession and distribution of heroin on October 26, 1979 (Counts 3 and 4 of the first indictment); on a count involving one of several telephone calls on March 18, 1980 (Count 20 of the first indictment); and on a count involving a telephone call on May 5, 1980 (Count 36 of the first indictment). The acts that formed the basis for those charges were alleged as overt acts 2, 14, and 26 of Count 1 of the second indictment. Kenneth Davis is incorrect in his assertion (Pet. 15) that overt act 1 of Count 1 and overt act 1 of Count 2 were related to substantive counts on which Davis was acquitted at the first trial. Those overt acts involved telephone conversations, not the acts of possession or distribution on which Davis was acquitted at the first trial. /11/ Several of Duane Davis's other claims merit only brief response. The district court did not abuse its discretion in denying Davis's request for a "jury view" of the location where DEA agents arrested Davis (see Pet. 16); the district court was manifestly correct in concluding that a visit to the location could not significantly add to the jury's understanding of the case. The court's remark (Pet. 17) that most jurors are against drugs was an entirely innocent (and correct) remark made during the voir dire, and it served only to assist the jurors in responding to the court's voir dire questions. It was neither erroneous nor prejudicial to the defendants. The government's asserted failure to seal properly the three cannisters that were seized from Duane Davis (see Pet. 17) was no ground for exclusion of the evidence and went instead only to its weight. /12/ Petitioner's reliance on United States v. Enright, 579 F.2d 980 (6th Cir. 1978), is misplaced. The Sixth Circuit in United States v. Cassity, 631 F.2d 461, 464 (6th Cir. 1980), held that statements made by a co-conspirator were admissible against another conspirator who joined the conspiracy after the statements were made, specifically rejecting the argument that United States v. Enright stood for a contrary proposition. In any event, any intra-circuit conflict is for the circuit, not this Court, to resolve. Wisniewski v. United States, 353 U.S. 901, 902 (1957). /13/ Petitioners did not object to the prosecutor's comment at the time it was made. /14/ The district court conducted a three-day voir dire of the jury.