ALP MARTIN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6138 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals is reported at 908 F.2d 728. /1/ JURISDICTION The judgment of the court of appeals was entered on August 8, 1990. The petition for a writ of certiorari was filed on October 31, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court abused its discretion in responding to allegations that some jurors had formed a premature opinion concerning petitioner's guilt. 2. Whether the district court abused its discretion in refusing to grant petitioner a separate trial. 3. Whether there was sufficient evidence to sustain petitioner's convictions. STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of conspiring to import cocaine, in violation of 21 U.S.C. 963; three counts of importing cocaine, in violation of 21 U.S.C. 952(a); and one count of conspiring to violate the Travel Act, 18 U.S.C. 371 and 1952. The district court granted petitioner's motion for acquittal on two counts of importing cocaine, and the jury acquitted petitioner on two additional counts of importing cocaine. Petitioner was acquitted on four other counts of importing cocaine. Petitioner was sentenced to two years' imprisonment, to be followed by a three-year special parole term. The court of appeals affirmed. /2/ 908 F.2d 728. 1. The evidence at trial showed that petitioner conspired with his codefendants to import large quantities of cocaine into the United States via airplane. Petitioner functioned as a "lookout" who communicated with the airplane pilots by radio during their illicit flights and warned the pilots of any law enforcement officers near the landing site in Lakeland, Florida. 908 F.2d at 731-732. 2. On the second day of trial, one juror was overhead saying to a second juror that "these guys sitting across from us think they're going to get off on this." 908 F.2d at 733. Defense counsel asked the district court to examine the two jurors and to either excuse the jurors or declare a mistrial. The district court determined that "examination of the two jurors would only aggravate the situation, and after we talk to them about it, I think we wouldn't have any alternative but to excuse them() or declare a mistrial." Id. at 734. Instead, the district court addressed the jury as a whole. The court said: I want to tell you while you members of the jury are most assuredly not under any surveillance, there has been a statement made that one or more of your number has been heard inadvertently, it has been made clear that some comment was exchanged relative to the evidence in the case. Now, the statement that we've heard might be interpreted as reflecting that some early or premature decision may have been made on some issue by one or more of your number. I want to ask you as a group if any juror has made any kind of decision to the point that he or she could not keep a completely open mind on all issues until all the evidence is in, and until the law has been explained to you? That has been the sense of my instructions to you from the * * * outset(,) that is to keep an open mind. It may be difficult for you to do that. You may understand, as I mentioned to you before, you can't receive all the evidence in a moment, you known, it is going to take a number of days, and it is completely improper for you to make any kind of early decision. Is there any member of this jury that feels that they have made up their minds on a fact that they think may be ultimately presented to them, and doesn't make any difference what the rest of the evidence shows? Is there anybody in that position? I want a conscientious answer from you, you must give it to me. Gov't C.A. Br. 29-30 (quoting R. 35:507-509). When no juror responded affirmatively, the district court reiterated its instructions that the jurors were not to share their reactions or evaluations with each other until deliberations began. Ibid. The court then denied defense counsel's motion to excuse the two jurors or declare a mistrial. Ibid. During the third week of trial, as a DEA agent was about to testify, one of the jurors involved in the earlier incident was heard to say that the agent should "do it to him good." 908 F.2d at 733. The defendants again moved to disqualify the juror or for a mistrial. The district court declined to investigate this remark and denied the defendants' motion, observing that jurors naturally begin to form an opinion of the case after several weeks of trial. Id. at 734. 3. On appeal, petitioner and his codefendants renewed their contentions concerning the jurors' alleged remarks. The court of appeals noted that the decision whether to question jurors about possible misconduct that does not stem from outside influences is committed to the discretion of the district court. 908 F.2d at 733. The court of appeals concluded that the first remark was ambiguous and that "this general ambiguous observation by one juror of the appellants' demeanor does not suggest serious jury contamination." Id. at 734. The court of appeals held that the district court's limited hearing on the first remark was appropriate in the circumstances "because additional investigation might have overemphasized the remark." Ibid. The court further concluded that the trial court cured any possible taint by questioning the jurors as a group and by reminding them of their duty to keep an open mind. The court of appeals also determined that the second remark (to "do it to him good") was ambiguous, because there was no indication of the identity of "him." 908 F.2d at 734. Given that the comment was made during the third week of trial, the court of appeals held that the district court did not abuse its discretion in deciding not to conduct a "potentially disruptive investigation." 908 F.2d at 734. In so holding, the court of appeals recognized that a juror's statement concerning a defendant's guilt toward the end of a trial may reflect an objective evaluation of the state of the evidence presented by that point. See Grooms v. Wainwright, 610 F.2d 344, 348 (5th Cir.), cert. denied, 445 U.S. 953 (1980). The court of appeals also rejected petitioner's other claims. The court found that there was sufficient evidence to support petitioner's convictions. The government's evidence showed that petitioner operated a radio within two miles of the Lakeland ranch, that he gave signals to clear the conspirators' aircraft for landing, and that he conducted radio surveillance of law enforcement communications. The court regarded this evidence as sufficient to connect petitioner to the conspiracy. 908 F.2d at 736. Finally, the court of appeals rejected petitioner's claim that he should have been granted a separate trial. The court concluded that petitioner had failed to demonstrate that he suffered compelling prejudice from the joint trial. Id. at 736-737. Judge Anderson, in a separate opinion concurring in part and dissenting in part, disagreed with the majority's conclusion that the two jurors' remarks were ambiguous. 908 F.2d at 740. In Judge Anderson's view, the remarks were "a serious indication of jury contamination, and thus triggered a heavier burden on the part of the district court to investigate." Ibid. ARGUMENT 1. Petitioner renews his contention (Pet. 21-30) that the juror remarks necessitated further investigation by the district court and a mistrial. Contrary to petitioner's contention, both courts below correctly decided this fact-bound issue. Petitioner asserts that the remarks reflected a premature determination of defendants' guilt. But the court of appeals regarded the comments as ambiguous, 908 F.2d at 734, and there is no reason for this Court to review that fact-specific determination. The fact that the jury acquitted petitioner on two counts of importing cocaine hardly suggests that the jurors had prejudged the evidence. In any event, petitioner does not suggest that the remarks were based on any outside influence. Absent such extrinsic influences, the decision whether to investigate possible juror misconduct is committed to the discretion of the district court. United States v. Cuthel, 903 F.2d 1381, 1382 (11th Cir. 1990); United States v. Bradshaw, 787 F.2d 1385, 1388-1390 (10th Cir. 1986); United States v. Chiantese, 582 F.2d 974, 978-980 (5th Cir. 1978), cert. denied, 441 U.S. 922 (1979). Here, the district court's decision not to interrogate the two jurors individually was not an abuse of discretion. The court asked the jurors whether any of them had "made any kind of decision" or "could not keep a completely open mind." 908 F.2d at 733. The court also reminded the entire jury of its duty to remain impartial and not to decide the case until it had been submitted to them. Similarly, the district court's decision not to conduct a potentially disruptive investigation into the second alleged remark during the third week of trial was well within its discretion. 2. Petitioner also contends (Pet. 30-35) that he was entitled to a separate trial. Petitioner accepts (Pet. 30) the general rule that co-conspirators may be tried together. He also concedes (ibid.) that denial of a severance is reviewable only for abuse of discretion, and that he is entitled to relief only if he can show that he suffered "compelling prejudice" from the joint trial. Although petitioner asserts that these settled principles were misapplied in his case, he makes no serious effort to demonstrate that he was prejudiced by the joint trial. There is no indication that the jury was unable to compartmentalize the evidence against petitioner and the evidence against his codefendants. On the contrary, the jury acquitted petitioner on two counts of importation. The acquittals indicate that the jury was not swayed by prejudicial "spillover" from other defendants. See United States v. Smith, 893 F.2d 1573, 1581 (9th Cir. 1990); United States v. Lee, 886 F.2d 998, 1002 (8th Cir. 1989), cert. denied, 110 S.Ct. 1926 (1990); United States v. Garner, 837 F.2d 1404, 1414 (7th Cir. 1987), cert. denied, 486 U.S. 1035 (1988). 3. Finally, petitioner contends (Pet. 35-42) that there was insufficient evidence to sustain his convictions. There is no merit to this claim. Petitioner insists that he did not join the conspiracy until 1985, some two years after it began. But the government's evidence showed that petitioner participated in at least three large-scale smuggling runs corresponding to the three substantive counts on which he was convicted. On each of those occasions, petitioner functioned as a lookout. As part of his duties, petitioner monitored law enforcement radio communications to ensure that the authorities were not aware of the flight. The courts below correctly found that petitioner cannot escape liability for his actions. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General LOUIS M. FISCHER Attorney JANUARY 1991 /1/ The petition served on the government does not include the court of appeals' opinion. Consequently, references to the opinion below in this brief are cited to "908 F.2d" rather than "Pet. App." /2/ Petitioner's five codefendants were convicted on various drug-related charges, including importation of both cocaine and marijuana. One codefendant, Philip Cardilli, also was convicted of operating a continuing criminal enterprise in violation of 21 U.S.C. 848. Several other codefendants pleaded guilty prior to trial. The court of appeals reversed one codefendant's conviction for insufficient evidence and vacated Cardilli's conviction for conspiracy, but otherwise affirmed the convictions and sentences on all counts. 908 F.2d at 740.