WILLIE HORTON, PETITIONER V. UNITED STATES OF AMERICA No. 90-7539 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 921 F.2d 540. JURISDICTION The judgment of the court of appeals was entered on December 26, 1990. The petition for a writ of certiorari was filed on March 26, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the jury had to agree unanimously on whether petitioner was acting as the principal or as an aider and abettor when he committed first-degree murder. STATEMENT After a jury trial in the United States District Court for the Eastern District of Virginia, petitioner was convicted of first-degree murder, in violation of 18 U.S.C. 1111 and 18 U.S.C. 2. He was sentenced to a term of life imprisonment. The court of appeals affirmed. Pet. App. A. 1. On October 31, 1988, Harold Hoston was murdered in the shower area of cellblock 2 at the Lorton Reformatory in Lorton, Virginia. The autopsy determined that the cause of death was a stab wound to the heart and revealed a total of nine stab wounds in Hoston's chest, back, buttocks, and abdomen. Pet. App. A 541-542. A search conducted immediately after the murder uncovered three "shanks" (homemade knives) concealed in various places on cellblock 2, as well as bloody underwear in one of the cells. The medical examiner testified that any of the shanks could have inflicted any of the stab wounds. No fingerprints were found on the shanks, and attempts to type the blood found on one of the shanks and on the underwear were inconclusive. A body search of the inmates on the cellblock failed to reveal any signs of an altercation. Pet. App. A 541-542. Shortly before the murder, five inmates on the cellblock -- petitioner, co-defendants James DaCoster and Darron Green, and inmates Gibson and Ridley -- were released from their cells for a shower. Gibson and Ridley went immediately to the shower while petitioner, DaCoster, and Green lingered and talked to other inmates. Steven Lofton, a witness to the murder, testified that petitioner, DaCoster, and Green came to his cell and told him not to go to the shower because there was going to be a fight with Hoston. Shortly thereafter, the guards took Gibson and Ridley back to their cells, and released Hoston and Lofton for their showers. Hoston went directly to the shower while Lofton hung back. Petitioner, Dacoster, and Green entered the shower either before or immediately after Hoston entered. Pet. App. A 541-542. Lofton testified that he then heard a scream coming from the shower and went to the top of the stairway that led down to the shower area. Lofton saw petitioner stabbing Hoston in the stomach with a shank; Hoston was then already bleeding from the chest. Hoston tried to flee, but Green and DaCoster blocked his way. Petitioner stabbed Hoston several more times in the back, until Hoston fell down near the shower entrance. Petitioner, DaCoster, and Green then left the shower and headed up the stairs, while Lofton retreated to his cell. Pet. App. A 542. Two guards observed petitioner, Dacoster, and Green emerging from the shower at this time; the guards testified that the three were walking faster than normal. One of the guards went into the shower and found Hoston on the ground bleeding. Hoston was taken to the hospital, where he died. Pet. App. A 542. Petitioner, Green, and DaCoster were each indicted on one count of first-degree murder, in violation of 18 U.S.C. 1111 and 18 U.S.C. 2. C.A. App. 5. Green and DaCoster pleaded guilty to voluntary manslaughter; petitioner stood trial. Pet. App. A 542. 2. At the close of the case, the court gave the jury a general unanimity instruction but initially gave no aiding and abetting instruction. After deliberating for thirty-five minutes, the jury sent out a note asking whether a conviction for first-degree murder required that the defendant inflict the fatal injury. The court suggested to counsel that an aiding and abetting instruction would be appropriate in light of the question. The jury thereafter asked two more questions: "If you were not the one to plan the murder, can you be convicted of first-degree murder?" and "If you are not the only one to premeditate the murder, can you be convicted of first-degree murder?". The court subsequently gave the jury an aiding and abetting instruction and then permitted counsel to present brief arguments to the jury regarding the instruction. Pet. App. A 542-543. 3. The court of appeals affirmed petitioner's conviction. Pet. App. A. The court rejected petitioner's contention that the trial court deprived him of his right to a unanimous verdict by giving the jury an aiding and abetting instruction. Petitioner argued that the instruction made it impossible to tell whether individual jurors convicted him as a principal or as an aider and abettor. Id. at 545. The court determined, however, that "(o)n the facts of this case, there can be no doubt that all of the jurors found that (petitioner) was an active participant in the murder of Hoston, a finding sufficient to support a verdict of first degree murder under 18 U.S.C. 1111 and 18 U.S.C. 2." Ibid. For that reason, the court held, petitioner's right to a unanimous verdict was not violated. Ibid. The court observed that its holding accorded with the Eighth Circuit's decision in United States v. Eagle Elk, 820 F.2d 959, cert. denied, 484 U.S. 867 (1987), which held that a defendant was not deprived of a unanimous verdict when the jury was instructed on first-degree murder under 18 U.S.C. 1111 and on aiding and abetting under 18 U.S.C. 2. Pet. App. A 545. The court noted that its holding was also consistent with decisions stating that "jurors (must) be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged." Pet. App. A 545 (quoting United States v. Gipson, 553 F.2d 453, 457-458 (5th Cir. 1977)). Here, because the jury agreed that petitioner actively participated in the murder and acted with the requisite intent, "the jurors were in substantial agreement as to the nature of (petitioner's) guilty act, as required by the sixth amendment." Id. at 545 (quoting United States v. Eagle Elk, 820 F.2d at 961); see also Pet. App. A 546 n.2. Thus, "(w)hether some jurors found (petitioner) guilty as a principal, believing that he delivered the fatal blow to the heart, while others found him guilty as an aider and abettor, doubting exactly who delivered the fatal blow, (was) not controlling." Id. at 545. The court observed that the decisions cited by petitioner recognized that, "(w)hen alternative acts are so closely related as not to be conceptually distinct, 'a jury need not be unanimous as to which factual predicate or specification supports the defendant's guilt.'" Ibid. (quoting United States v. Duncan, 850 F.2d 1104, 1111 (6th Cir. 1988)). In this case, the court found, "the alternative acts * * * are fatal and non-fatal stabbing, and they are not 'conceptually distinct.'" Pet. App. A 545-546. The court concluded that, if the verdict in this situation were deemed non-unanimous, then the government would seldom be able to convict the perpetrators of group violence of primary criminal conduct short of proving each individual's precise role in the crime. The division of roles may be murky, even where the active participation of group members is clear. By rendering aiders and abettors guilty as principals, 18 U.S.C. Section 2 intended to make unnecessary a showing of the defendant's act at the level of particularity that (petitioner) urges. Id. at 546. ARGUMENT Petitioner renews his contention (Pet. 13-20) that his right to a unanimous verdict was violated because individual jurors may have disagreed whether he was acting as a principal or as an aider and abettor when he committed first-degree murder. In our view, the court of appeals properly rejected that contention. Since a similar contention has been raised in Schad v. Arizona, No. 90-5551 (argued Feb. 27, 1991), however, we believe it is appropriate for the Court to hold the petition for disposition in light of the disposition of Schad. 1. Petitioner argues (Pet. 20) that the "the jury should have been instructed that they had to unanimously agree * * * on the specific act of Petitioner which was to serve as the predicate (of guilt)." As the court of appeals correctly observed (Pet. App. A 545, 546 n.2), however, there can be no doubt that the jury unanimously agreed that petitioner stabbed Hoston with the specific intent of murdering him. Thus, the only point on which jurors might have disagreed was whether petitioner inflicted the fatal wound to Hoston's heart. Id. at 545. The court of appeals correctly concluded that the jury was not required to agree unanimously on that detail. Id. at 545-546. Indeed, the aiding-and-abetting statute, 18 U.S.C. 2, was intended precisely to obviate any such requirement. Pet. App. A 546. The court was therefore correct in rejecting petitioner's contention that he was deprived of a unanimous jury verdict. 2. We nonetheless believe that it is appropriate to hold the petition for disposition in light of Schad, in which the Court has granted review to decide a similar contention. The petitioner in Schad was convicted under Arizona's first-degree murder statute. See Brief for the United States as Amicus Curiae Supporting Respondent in Schad, at 3-4. That statute defines first-degree murder to include premeditated murder and felony-murder. Ariz. Rev. Stat. Ann. Section 13-452 (1959 & Supp. 1973) (current version at Ariz. Rev. Stat. Ann. Section 13-1105.A (1989)). The jury in Schad was given instructions concerning both felony-murder and premeditated murder. See U.S. Br. in Schad, at 4. In this Court, Schad has argued that, under the reasonable doubt standard of the Due Process Clause and the Sixth Amendment, the jury had to agree on which kind of murder he committed. Pet. Br. in Schad, at 10-20. The United States has filed a brief amicus curiae urging the Court to reject that argument. /1/ We support the respondents' view that the jury must be unanimous only as to the essential elements of the offense with which a defendant is charged. U.S. Br. in Schad, at 6-14. Since the jury agreed that Schad engaged in the conduct that the Arizona legislature has defined as first-degree murder, its verdict satisfied the unanimity requirement. Id. at 5-6. That position, applied here, would sustain the judgment below. Thus, while in several respects the present case is distinguishable from Schad, the Court's decision in Schad might well control this case. /2/ For that reason, we believe the Court should hold the petition for disposition in light of the disposition in Schad. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the disposition of Schad v. Arizona, No. 90-5551. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SIDNEY M. GLAZER Attorney MAY 1991 /1/ We are sending petitioner's counsel a copy of our brief in Schad. /2/ The court of appeals here distinguished Schad on the grounds that "(i)n this case the factual predicates are intertwined and the specific intent to commit murder must be found to convict the defendant as a principal or as an aider and abettor." Pet. App. A 546 n.2.