JEFFREY TOFFLER, PETITIONER V. UNITED STATES OF AMERICA No. 90-6238 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 Second Circuit Brief For The United States In Opposition OPINIONS BELOW The order of the court of appeals (Pet. App. 1-3) is not reported. A previous opinion of the court of appeals on petitioner's first appeal is reported at 888 F.2d 223. JURISDICTION The judgment of the court of appeals was entered on August 16, 1990. The petition for a writ of certiorari was filed on November 14, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the trial court committed plain error in instructing the jury that nitrous oxide and butane were hazardous materials. 2. Whether petitioner's conviction rested on noncriminal conduct. STATEMENT After a jury trial in the United States District Court for the Eastern District of New York, petitioner was convicted of causing the transportation in air commerce of a hazardous material, in violation of 49 U.S.C. App. 1472(h) and 18 U.S.C. 2 (Count Three); wilfully violating regulations promulgated by the Secretary of Transportation by causing the transportation of those hazardous materials, in violation of 49 U.S.C. App. 1809(a)(1) and (b) and 18 U.S.C. 2 (Count Four); and possessing cocaine, in violation of 21 U.S.C. 844 and 18 U.S.C. 2. He was sentenced to 18 months' imprisonment, to be followed by three years' supervised release, and was fined $10,125. The court of appeals affirmed his convictions, but held that Count Three was a lesser included offense of Count Four. The court accordingly remanded for resentencing. United States v. Moskowitz, 888 F.2d 223 (2d Cir. 1989). On remand, the district court sentenced petitioner to the time he already had served and place him on probation. Petitioner did not appeal that ruling, but he again appealed his conviction on Count Four, claiming that the jury instructions on that count were defective. The court of appeals once again affirmed. Pet. App. 1-3. 1. The evidence at trial is summarized in the opinion of the court of appeals on petitioner's first appeal. 888 F.2d at 225-226. Briefly, the evidence showed that petitioner -- along with co-defendants Richard Moskowitz, Christine Dalfonso, and Denise Brookshire -- possessed cocaine and various drug paraphernalia, including several canisters of butane and nitrous oxide gas, on board an Eastern Airlines flight from New York City to Miami, Florida. These items were discovered following petitioner's use of one of the airplane's lavatories to smoke "crack" cocaine. Because of the explosive nature of the gases, the plane was forced to return to New York City. There, a search of petitioner's and his companions' baggage, and petitioner's person, produced more cocaine and several additional cylinders of nitrous oxide and butane. One canister of butane was found in petitioner's luggage. 2. At trial, the district court charged the jury that both butane and nitrous oxide were hazardous materials under Department of Transportation (DOT) regulations. Petitioner did not object to that instruction at trial and did not claim in his initial appeal that the instruction was defective. Nonetheless, the court of appeals noted on its own initiative that the jury instruction on nitrous oxide might have misled the jury, because DOT regulations permit up to 150 pounds of compressed gaseous nitrous oxide to be transmitted in air commerce under certain circumstances. 888 F.2d at 229 n.1. The court observed, however, that petitioner did not object to the instruction at trial and therefore had waived any challenge to it. Ibid., citing Fed. R. Crim. P. 30. The court held that the instruction did not amount to plain error under Fed. R. Crim. P. 52(b) because "(t)he evidence was overwhelming that (petitioner) transported hazardous material by air; in fact, (petitioner) accepted responsibility for transporting butane." 888 F.2d at 229 n.1. For entirely unrelated reasons, however, the court vacated petitioner's sentences on Counts Three and Four and remanded the case to the district court for resentencing. Id. at 229. /1/ 2. Petitioner was resentenced to time served, and he again appealed. He did not challenge his new sentence; instead, he claimed that the trial court improperly instructed the jury that nitrous oxide was a hazardous material as a matter of law. This time, the court of appeals held that because it had already found that the instruction did not constitute plain error, it was bound by that ruling unless petitioner could demonstrate a change in the controlling law, new evidence, or clear error. Pet. App. 2. The court saw no such change in the controlling law, and petitioner did not contend that there was new evidence requiring the court to reconsider its prior decision. On the question of clear error, the court reiterated that overwhelming evidence showed that petitioner had transported butane, a hazardous material prohibited by DOT regulations for passengers. Accordingly, the court concluded that petitioner had not demonstrated "manifest injustice or a clear error in our finding that he unlawfully transported a hazardous material on an airplane." Ibid. ARGUMENT 1. Petitioner contends that his conviction for transporting a hazardous material should be set aside because the jury was erroneously instructed that it could convict for either butane or nitrous oxide, and one prong of that instruction was incorrect. Pet. 4-6. Petitioner has failed to demonstrate, however, that that instruction resulted in plain error under Fed. R. Crim. P. 52(a) in the circumstances of this case. Accordingly, further review is not warranted. /2/ Petitioner relies on the rule that a conviction cannot stand if the jury was instructed that its verdict could rest on either of two alternatives, and one of them was improper. See, e.g., Zant v. Stephens, 462 U.S. 862, 881 (1983); Stromberg v. California, 283 U.S. 359, 367-368 (1931). /3/ More recently, however, the Court has declined to apply such a per se rule of reversal across the board. Instead, the Court has concluded that an erroneous instruction, even one defective on a material element of an offense, need not result in reversal as long as a properly instructed jury would have had to make the proper factual finding. Pope v. Illinois, 481 U.S. 497, 501-503 & n.7 (1987); Rose v. Clark, 478 U.S. 570, 576-582 (1986); accord United States v. Doherty, 867 F.2d 47, 57-58 (1st Cir.) (citing cases), cert. denied, 109 S. Ct. 3243 (1989); see also United States v. Dotson, 895 F.2d 263, 265-266 (6th Cir. 1990); United States v. Kerley, 838 F.2d 932, 938-939 (7th Cir. 1988). In light of the court of appeals' finding that it was beyond cavil that petitioner transported butane, it is clear that a properly instructed jury would have found that petitioner transported hazardous materials. Beyond that, petitioner fails to recognize that because he did not object to the instruction at trial, he can obtain relief only if he demonstrates that the instruction was plain error under Fed. R. Crim. P. 52(b). In order to succeed on such a claim, he must demonstrate that the instruction on nitrous oxide and butane was a "particularly egregious error" that resulted in a "miscarriage of justice." United States v. Young, 470 U.S. 1, 15 (1985). A reviewing court must make that determination in light of the entire trial record. Id. at 16. The court below found that, under the circumstances of this case, the instruction was not plain error, because it was clear that petitioner had transported butane. It is undisputed that butane is a hazardous substance, and petitioner acknowledged that he had transported butane. Hence, as the court below found, there was no reason to apply the plain error doctrine to petitioner's case so as to relieve him of liability for his actions. The cases on which petitioner relies do not require a different result. For example, in United States v. Golumb, 811 F.2d 787 (2d Cir. 1987), the defendant was prosecuted for receipt of stolen property. The court of appeals concluded that that offense should not have been submitted to the jury and that doing so was plain error since the government did not prove an essential element of the offense: that the property in fact was stolen. Id. at 792-793. Here, by contrast, the trial court's instructions contained all the essential elements of the offense, and the evidence is indisputable that petitioner possessed butane. The remaining cases that petitioner cites do not involve plain error claims. /4/ 2. Petitioner also argues that because he was convicted for "non-criminal conduct," his conviction for transporting hazardous materials must be reversed. Pet. 6. The short answer to his claim is that he was not convicted for engaging in noncriminal conduct but for transporting butane, which is a hazardous material. Hence, he was convicted because he in fact committed a criminal offense. We have already shown that plain error did not result from the trial court's instruction on nitrous oxide and butane. That being so, there is no reason to vacate petitioner's conviction. 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 court of appeals instructed the trial court to combine the two convictions and to resentence petitioner under Count Four, because Count Three was a lesser included offense of Count Four. 888 F.2d at 229. /2/ Despite the court of appeals' statement that the jury instructions were in error, it is by no means clear that there was any error in this case at all. Although the court of appeals was correct in noting that up to 150 pounds of compressed gaseous nitrous oxide can be carried aboard a commercial aircraft, 888 F.2d at 229 n.1 (citing 49 C.F.R. 172.101), the court failed to note that there are various packaging and labelling requirements that must be satisfied in order for such a shipment to be lawful. See 49 C.F.R. 171.2(a), 172.101(h), 172.202(a), 172.204, 172.400, 172.404, 173.304, and 173.306. If petitioner did not satisfy these requirements, then his transportation of nitrous oxide was in fact illegal as a matter of law. The court of appeals did not discuss this question, but the evidence suggests that the nitrous oxide was not packaged or labelled in any way. See 888 F.2d at 226. The conclusion of the court of appeals that the jury instructions were erroneous therefore may have been precipitous. There is no need to resolve that question in this case, however, because this case does not warrant review by this Court in any event, for the reasons given in the text. /3/ Several courts have declined to apply the Stromberg rule where the deficiency is that the evidence does not support the instruction, rather than where the instruction contains an error of law. E.g., United States v. Beverly, 913 F.2d 337, 361-365 (7th Cir. 1990) (citing cases); United States v. Washington, 861 F.2d 350, 352-353 (2d Cir. 1988). That is essentially the situation here. Rather than saying that the jury could find that petitioner and his cohorts had transported more than 150 pounds of nitrous oxide, the court said that nitrous oxide could not be transported. Moreover, unlike in Stromberg, petitioner was not engaging in activity protected by the First Amendment. Petitioner was "free basing" cocaine, thereby endangering himself and his fellow passengers. /4/ In United States v. Dansker, 537 F.2d 40, 51 (3d Cir. 1976), the court reversed one substantive bribery count for insufficiency of the evidence. The court concluded that because a conspiracy count had dual objectives, one of which was the invalidated substantive offense, the court had to reverse the conspiracy conviction as well due to the possibility that the jury convicted the defendants of the wrong scheme. But there was no instructional issue in that case, and, as we have pointed out, no plain error claim. In United States v. Brown, 583 F.2d 659, 669-670 (1978), cert. denied, 440 U.S. 909 (1979), the Third Circuit essentially held that where there are multiple offenses listed as predicate acts on a RICO charge, the sufficiency of all the offenses must be shown in order to validate the RICO conviction. But the Third Circuit is alone in that position; other circuits have recognized that the jury's verdict on substantive counts can supply the necessary clarification of the verdict. See Callanan v. United States, 881 F.2d 229, 234 (6th Cir. 1989), cert. denied, 110 S. Ct. 1816 (1990); Brennan v. United States, 867 F.2d 111, 115 (2d Cir.), cert. denied, 109 S. Ct. 1750 (1989); United States v. Lopez, 803 F.2d 969, 976 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987); United States v. Pepe, 747 F.2d 632, 667-668 (11th Cir. 1984). In any event, Brown also was not a plain error case.