UNITED STATES OF AMERICA, PETITIONER V. RICHARD DIMATTEO, ET AL. No. 83-1554 In the Supreme Court of the United States October Term 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit PARTIES To The PROCEEDING In addition to Richard DiMatteo, respondents are Morris Kessler and James Suggs. TABLE OF CONTENTS Opinion below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix OPINION BELOW The opinion of the court of appeals (App., infra, 1a-12a) is reported at 716 F.2d 1361. JURISDICTION The judgment of the court of appeals (App., infra, 13a) was entered on October 11, 1983. A petition for rehearing was denied on December 19, 1983 (App., infra, 14a). On February 8, 1984, Justice Powell extended the time for filing a petition for a writ of certiorari to March 18, 1984 (a Sunday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether an adverse ruling on a defendant's motion in limine to restrict cross-examination of his proposed witness is reviewable on appeal if the defendant does not call the witness to testify at trial. 2. If so, whether the court of appeals erred in presuming, both as to the proponent of the witness and as to two co-defendants, that any error in the trial court's ruling was not harmless. STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, respondents Kessler and DiMatteo were convicted of conspiracy to import marijuana, in violation of 21 U.S.C. 963 (Count One), conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. 846 (Count Three), and importation (Count Two) and possession of marijuana (Count Four), in violation of 21 U.S.C. 841(a)(1) and 952(a). Respondent Suggs was convicted of conspiracy to possess marijuana (Count Three), but was acquitted of possession of marijuana (Count Four). Kessler and DiMatteo were each sentenced to concurrent terms of 30 months' imprisonment on all counts, to be followed by concurrent special parole terms of three years, Suggs was sentenced to 18 months' imprisonment, suspended in favor of three years' probation. The Court of Appeals reversed. /1/ 1. The evidence at trial, the sufficiency of which was not disputed on appeal, established that early in 1980 respondent Kessler contacted Jimmy Miller, an informant working with the Drug Enforcement Administration, about a possible drug smuggling scheme (Tr. 538-539). Miller agreed to meet Kessler, but he also notified the DEA (Tr. 539). On April 3, 1980, Miller met with Kessler at the Fontainebleau Hotel in Miami Beach. With Miller was DEA Special Agent Charles Martinez. Miller introduced Martinez as "Carlos," a pilot with long experience flying drugs into the United States (Tr. 96-98). Kessler told Martinez that he and his "long time partner" Ricky (DiMatteo) were working with two groups of Cubans and needed a pilot to help them fly marijuana out of Haiti and Colombia in a DC-6 (Tr. 99-100, 113). Martinez replied that he would not fly out of Colombia, but he agreed to assist Kessler and his co-conspirators in flying the marijuana from Haiti (Tr. 100-101). During this two-hour meeting (Tr. 107) Kessler repeatedly left Martinez to speak to "the Cubans" (later identified as co-conspirators Varella and Chinea) (Tr. 102-105, 327-328), returning to Martinez with details about the plane they were to use to transport 17,000 pounds of marijuana (Tr. 101-103) and what Martinez would be paid for his participation (Tr. 104). Martinez agreed to meet with Kessler again the next morning. On April 4, Martinez again met with Kessler at the hotel. Kessler introduced Martinez to DiMatteo (Tr. 108-109, 328-329) and arranged a meeting for that afternoon in DiMatteo's hotel room at the Cricket Club, a private club in Miami Beach (Tr. 107-110). DiMatteo's sponsor at the Cricket Club, Bobby Caldevilla, was present at the afternoon meeting. The co-conspirators discussed details of the planned marijuana importation, including the airplane, the procedures to be followed, and Martinez's payment. Martinez told DiMatteo he would need $75,000 "front money" out of the agreed total payment of $150,000. When DiMatteo demurred, he agreed to take only $50,000 (Tr. 116-117). On April 9, Martinez met respondent Suggs and two others, who were "in charge of the off-loading operation" (Tr. 137-138). They arranged to meet the next morning at the proposed landing field in central Florida (Tr. 140). Early the next morning, Martinez flew in a chartered plane to a small airport in Leesburg, Florida, where he was met by Suggs (Tr. 141-144). Suggs then drove Martinez to the proposed landing site. He described the field's dimensions to Martinez, and said that even if the police were to learn that a plane had landed, they would be able to unload the marijuana before the police could get to the landing site (Tr. 144-145). Suggs then drove Martinez back to the airport (Tr. 153-154). /2/ After several more meetings with other co-conspirators (Tr. 157-162) Martinez flew to Haiti on April 19, and the next day flew the loaded DC-6 to the landing site in central Florida (Tr. 163-167). Martinez and surveillance agents saw 10 to 15 people unload the cargo into waiting trucks and drive the loaded trucks away (Tr. 174-177). DEA agents followed three of the trucks, seized their contents -- a large quantity of marijuana (Tr. 320-322) -- and arrested several individuals. The main conspirators continued to meet, however, to discuss how and why they had lost their marijuana and how to recover their lost profits (Tr. 183-185). Martinez spoke frequently with Kessler over the next three weeks, reassuring him that they would receive their share of the marijuana money (Tr. 186). 2. During the government's direct case DiMatteo announced his intention to call Caldevilla as a defense witness (Tr. 244). /3/ After the government rested DiMatteo reaffirmed his intention to call Caldevilla, as a witness on his behalf, to testify that at the April 4 Cricket Club meeting there had been no discussion of marijuana (Tr. 424). The government responded that if Caldevilla testified that the April 4 meeting concerned legitimate business, it would cross-examine him about subsequent drug discussion and transactions with Agent Martinez unrelated to the charges in this case (Tr. 425). DiMatteo's attorney then made a proffer of Caldevilla's proposed testimony outside the presence of the jury. He said that Caldevilla would testify about "his relationship with Mr. DiMatteo and the fact that Mr. DiMatteo was a guest of Mr. Caldevilla's at the Cricket Club in early April of 1980, and that he was invited to come down here on business by Mr. Caldevilla related to an oil deal with Niger(i)a" (Tr. 428). The deal purportedly involved DiMatteo's brother, an electrical engineer in Pennsylvania (Tr. 428-429). The government responded that Caldevilla's April 4 meeting with Kessler and DiMatteo concerned narcotics, not oil, and stated that Caldevilla had continued to meet with Agent Martinez and Kessler through July 28 to negotiate another marijuana deal (Tr. 431-432). Caldevilla had not yet been indicted for those subsequent activities, but an investigation was in progress (Tr. 432). The government proposed to cross-examine Caldevilla about his subsequent transaction to impeach his testimony about the April 4 meeting (Tr. 434). The prosecutor also stated that if Caldevilla claimed ignorance of the July marijuana meetings he would call Agent Martinez as a rebuttal witness (Tr. 435). Concerned about requiring Caldevilla to assert his privilege against self-incrimination before the jury, the court allowed him to present a dry run of his proposed testimony out of the jury's presence and cautioned him on his Fifth Amendment privilege (Tr. 438-440). Caldevilla testified in the voir dire that he was present in the hotel room on April 4 and that he had heard no conversation about marijuana or drugs (Tr. 446-447, 455-456). He said that he and DiMatteo had discussed an oil deal involving DiMatteo and his brother (Tr. 453). After the voir dire the court tentatively ruled that the government could not question Caldevilla about his later marijuana transactions with Agent Martinez. The court then recessed the trial overnight to permit the government to research the issue (Tr. 458). The next morning the government again argued that Caldevilla's subsequent marijuana-related conversations and dealings with Agent Martinez were relevant to impeach his testimony that the April 4 meeting concerned only legitimate business dealings, since those contacts would have been inexplicable had Caldevilla not learned at the meeting of Martinez's apparent involvement in illicit drug trafficking (Tr. 472-476). The government accordingly contended that the impeachment evidence was not directed at Caldevilla's character (Tr. 465, 490-491), so that unless Caldevilla admitted the subsequent narcotics conversations with Agent Martinez, it was entitled to impeach him directly by putting on a rebuttal witness (Tr. 476-480). DiMatteo responded that Fed. R. Evid. 608 precluded the use of extrinsic evidence to prove Caldevilla's subsequent conduct (Tr. 481). The district court reversed its earlier ruling (Tr. 493-496). Relying on Fed. R. Evid. 403, it held that because Caldevilla's testimony would directly conflict with Martinez's testimony about what happened at the April 4 meeting, the government's proffered cross-examination and rebuttal were material and relevant (Tr. 494). The court noted that admission of the evidence did not violate Fed. R. Evid. 608(b), since the government's proffered evidence was "not character evidence or evidence designed to address the character of the witness" (Tr. 494-495). Accordingly the court ruled that the government could cross-examine Caldevilla about the subsequent transactions, and if Caldevilla denied them or refused to answer the questions, could offer rebuttal testimony (Tr. 496). After another voir dire of Caldevilla concerning his July 1980 discussions with Martinez, during which Caldevilla asserted his Fifth Amendment privilege (Tr. 497-498), DiMatteo chose not to call him as a defense witness before the jury (Tr. 511). DiMatteo then requested a continuance to secure the testimony of two other witnesses (whom he had not subpoenaed) who had attended the April 4 meeting and could -- he said -- testify along the same lines as Caldevilla. The district court, finding that DiMatteo had had several months to prepare for trial, denied his mid-trial request for a continuance (Tr. 512-513). 3. The court of appeals reversed. It first concluded that DiMatteo was entitled to seek review of the trial court's ruling in limine, even though he had never put Caldevilla on the stand and the arguably inadmissible evidence had never been introduced. "The trial court was clearly apprised of the disagreement with its ruling in the offer of proof, and that is the primary consideration in preservation of error" (App., infra, 5a). The court held that both Kessler and Suggs were also entitled to review of the trial court's ruling. Kessler had not sought to put Caldevilla on the stand, but had objected to the government's proposed cross-examination and rebuttal since it would refer to later marijuana deals in which Kessler participated (Tr. 438, 487). That was sufficient, the court of appeals concluded, to entitle Kessler to seek reversal based on the district court's ruling. /4/ Finally, the court found that Suggs should stand in the same position as his co-defendants, since he had "adopted" their objections (App., infra, 6a). /5/ On the merits, the court of appeals held that the trial court would have erred in admitting the government's rebuttal evidence (Agent Martinez's testimony). It found that the drug-related meetings between Martinez and Caldevilla in July were specific acts of misconduct that would have been "admitted solely to attack the credibility of the witness," in violation of Fed. R. Evid. 608(b) (App., infra, 9a). Finally, having concluded that respondents had all objected and that error would have been committed (had everything occurred according to the parties' profers), the court rejected the contention that the error would have been harmless. The government argued that if Caldevilla had invoked his Fifth Amendment privilege before the jury, the trial court would have been within its discretion in striking Caldevilla's direct testimony. The defendants would thus derive no benefit from Caldevilla's testimony, no matter which way the trial court ruled (App., infra, 10a). The court of appeals responded that that argument was "based on an assumption about how the trial court would exercise its discretion. This case involves enough hypothetical scenarios without our adding to the tale" (ibid.). The court also did not consider, in its conclusion on harmless error, that DiMatteo could have subpoenaed other witnesses, but failed to do so. REASONS FOR GRANTING THE PETITION 1. This case presents the question whether a criminal defendant may appeal an adverse ruling on his motion in limine to restrict cross-examination of a prospective witness when he does not thereafter call the witness to testify at trial. A closely related issue is presented in Luce v. United States, petition for cert. pending, No. 83-912: whether a defendant may appeal an adverse ruling on his motion in limine to restrict cross-examination about the defendant's prior conviction, when the defendant has declined to testify at trial. In light of the disarray among the circuits on that issue, /6/ we have taken the position that the petition for a writ of certiorari in Luce should be granted. /7/ The same reasons that support a holding of unreviewability in Luce dictate that result here. Even where there is a proffer of the witness's and the government's evidence, as there was here, there is not the firm record that testimony before the jury would have created, and that gives the issue on appeal a "concrete factual context." New Jersey v. Portash, 440 U.S. 450, 462 (1979) (Powell, J., concurring). More important, permitting appeal by a defendant who has never put his witness on the stand deprives the trial court of the opportunity to reconsider a possibly erroneous ruling, and the prosecution of the chance to reassess the need for its rebuttal evidence. It also allows defendants with no real intention of calling a witness to inject into the trial proceedings, at no risk to themselves, a potential ground for reversal. Because of these problems, a holding that the district court's preliminary ruling is reviewable may have no other consequence than to discourage the district courts from giving such rulings. 83-912 U.S. Br. 9-12. 2. We also argued in our brief in Luce that where the defendant's proffered testimony is not actually introduced at trial, it is difficult for the reviewing court to determine whether any error in the district court's ruling was harmless (83-912 U.S. Br. 10). In this case the court of appeals, after holding that the ruling in limine was reviewable, concluded that the district court had erred in ruling that it would permit the government to put on Agent Martinez's rebuttal testimony (App., infra, 6a-9a). /8/ The court then refused to consider that Caldevilla's testimony may have been stricken, and hence that the district court's error had been harmless (id. at 10a): We will not hold the error to be harmless based on an assumption about how the trial court would exercise its discretion. This case involves enough hypothetical scenarios without our adding to the tale. The very difficulty of reviewing such "hypothetical scenarios," of course, is one of the principal reasons why the district court's ruling should be held unreviewable in the first place. Had Caldevilla actually testified the district court might, on his refusal to submit to cross-examination regarding later dealings with Martinez, have stricken Caldevilla's testimony. See, e.g., United States v. Panza, 612 F.2d 432, 438-439 (9th Cir. 1979), cert. denied, 447 U.S. 925, 926 (1980); United States v. Phillips, 664 F.2d 971, 1027-1028 (5th Cir. 1981). But if DiMatteo could not have the benefit of Caldevilla's testimony regardless how the district court ruled on his motion in limine, it is hard to avoid concluding that the preliminary ruling -- if erroneous -- was harmless error. /9/ The court of appeals' refusal to consider the question of harmless error is still more difficult to explain as to respondents Kessler and Suggs. Suggs was not even present at the April 4 meeting (Tr. 496), so the district court's ruling could not possibly have harmed him. It was no doubt for that reason that his counsel took no part in the proceedings concerning Caldevilla's testimony and the government's rebuttal. See note 5, supra. Kessler, like Suggs, did not join DiMatteo in proposing Caldevilla as a witness (Tr. 438) ("we are not calling that witness"). And though he said in passing that Caldevilla's testimony might be of "some benefit" to him (Tr. 482), his only real interest was in making certain that the government's cross-examination and rebuttal did not enlighten the jury about his participation with Caldevilla in the later marijuana transactions (a subject the prosecution agreed to refrain from bringing up (see note 4, supra)). That interest was fully satisfied when DiMatteo decided not to put Caldevilla on the stand. CONCLUSION The Court should defer consideration of the petition for a writ of certiorari pending its decision on the petition in Luce v. United States, No. 83-912. It should then dispose of this petition as appropriate in light of that determination. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General ANDREW L. FREY Deputy Solicitor General JOHN H. GARVEY Assistant to the Solicitor General SARA CRISCITELLI Attorney MARCH 1984 /1/ Other co-conspirators were convicted at an earlier trial. Their convictions were affirmed on appeal. United States v. Varella, 692 F.2d 1352 (11th Cir. 1982), cert. denied, No. 82-6845 (Oct. 3, 1983). /2/ Martinez described Suggs' car as a big four-door green Chrysler (Tr. 144). A surveillance agent saw Martinez leave the Leesburg Airport in a green Chrysler bearing a license tag registered to Suggs (Tr. 322; GX 16). /3/ Caldevilla had originally been charged in the same indictment. The charges were dismissed after the district court found, in the Varella trial, that co-conspirator statements could not be used against him. /4/ The government had, however, agreed not to refer to Kessler's participation in the subsequent marijuana deal (Tr. 492-493). /5/ Sugg's only participation in the trial court discussion of this issue was the following (Tr. 487): THE COURT: Mr. Korchin, do you want to be heard? MR. KORCHIN: No, Judge, I don't think so. There is nothing I can add. /6/ The Sixth Circuit holds that a defendant who chooses not to testify may not appeal the court's preliminary ruling allowing introduction of the impeachment evidence. United States v. Luce, 713 F.2d 1236 (1983), petition for cert. pending, No. 83-912. The Ninth Circuit until recently took the same position. See United States v. Fulton, 549 F.2d 1325, 1327 (1977); United States v. Murray, 492 F.2d 178, 197 (1973), cert. denied, 419 U.S. 942 (1974); United States v. Walters, 477 F.2d 386, 389, cert. denied, 414 U.S. 1007 (1973). The current Ninth Circuit rule, announced in United States v. Cook, 608 F.2d 1175 (1979) (en banc), cert. denied, 444 U.S. 1034 (1980), permits review when the defendant has announced an unequivocal intention to testify if the motion is granted, and has outlined the substance of his proposed testimony. See 608 F.2d at 1186 (opinion of Goodwin, J.); id. at 1188 (opinion of Wallace, J.); id. at 1196-1197 (opinion of Hufstedler, J.); United States v. Portillo, 633 F.2d 1313, 1321 (9th Cir. 1980), cert. denied, 450 U.S. 1043 (1981); United States v. Hendershot, 614 F.2d 648, 651-652 (9th Cir. (1980). Cf. United States v. Halbert, 668 F.2d 489, 491-494 (10th Cir.), cert. denied, 456 U.S. 934 (1982). The First, Fourth, Fifth, Seventh, and District of Columbia Circuits have held that review is available even if the defendant has not shown a firm intention to testify, or has not made clear the substance of his testimony. See United States v. Kiendra, 663 F.2d 349, 352 (1st Cir. 1981); United States v. Whitehead, 618 F.2d 523, 528 (4th Cir. 1980); United States v. Toney, 615 F.2d 277, 279 (5th Cir.), cert. denied, 449 U.S. 985 (1980); United States v. Fountain, 642 F.2d 1083, 1087 & n.3 (7th Cir.), cert. denied, 451 U.S. 993 (1981); United States v. Lipscomb, 702 F.2d 1049, 1069 (D.C. Cir. 1983) (en banc). Cf. United States v. Hickey, 596 F.2d 1082, 1087 (1st Cir. 1979). The Third Circuit has explicitly held that review is available, without addressing the question of the defendant's obligation to make a record. United States v. Provenzano, 620 F.2d 985, 1002 n.22, cert. denied, 449 U.S. 899 (1980). The Second Circuit has implicitly held that review is available, albeit without analyzing the issue, United States v. Hayes, 553 F.2d 824, 826-828, cert. denied, 434 U.S. 867 (1977); United States v. Palumbo, 401 F.2d 270 (1968), cert. denied, 394 U.S. 947 (1969). /7/ We have sent copies of our response to the petition in Luce to counsel for respondents. /8/ Though we have not presented the correctness of the evidentiary ruling as a separate question here, we note our strong disagreement with the court of appeals' resolution of that issue. The court improperly concluded that Martinez's testimony about later drug dealings with Caldevilla would have been offered "for the purpose of attacking * * * (Caldevilla's) credibility," in violation of Fed. R. Evid. 608(b). In fact, as the district court specifically noted, Martinez's testimony was "not character evidence or evidence designed to address the character of the witness" (Tr. 494-495). Caldevilla's proposed direct testimony was that the April 4 meeting had not concerned marijuana. The government's rebuttal was designed to show that the subject of drug dealing must have been discussed, else Caldevilla would have had no occasion to solicit Martinez to engage in another marijuana deal only three months later. /9/ The court of appeals also did not address the fact that DiMatteo had failed to subpoena two other witnesses to the April 4 meeting. They presumably could have given the same account as Caldevilla (assuming it was true or that they were willing to perjure themselves), but would not have been open to Martinez's rebuttal. APPENDIX