KEVIN J. RANKIN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6130 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 Third Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. 1a-2a) is not reported JURISDICTION The judgment of the court of appeals was entered on June 28, 1990, and a petition for rehearing was denied on August 2, 1990. Pet. App. 3a. The petition for a writ of certiorari was filed on October 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's false statements in connection with a motion to disqualify a judge from presiding at his trial constituted an offense within 18 U.S.C. 1001. 2. Whether petitioner's false statements that were intended to force a judge to disqualify himself from his trial violated the obstruction of justice statute, 18 U.S.C. 1503. 3. Whether the district court erred in refusing to give petitioner's requested supplemental instruction. 4. Whether government witnesses committed perjury at petitioner's trial. 5. Whether petitioner's trial was the result of prosecutorial vindictiveness. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Pennsylvania, petitioner was convicted of making false statements, in violation of 18 U.S.C. 1001, and obstruction of justice, in violation of 18 U.S.C. 1503. He was sentenced to three years' probation, to run concurrently with a term of probation to which he was sentenced on a prior conviction, and a $1,000 fine. Pet. 11. The court of appeals affirmed. Pet. App. 1a-2a. 1. In 1983, petitioner was convicted of various drug offenses and sentenced to 54 years' imprisonment. /1/ District Court Judge John Hannum presided at petitioner's trial. The court of appeals reversed petitioner's conviction and remanded the case for a new trial, on the ground that the district court had improperly denied petitioner a continuance to obtain counsel of his choice. United States v. Rankin, 779 F.2d 956 (3d Cir. 1986). Prior to the start of his second trial, petitioner filed a motion to disqualify Judge Hannum, alleging that during the first trial, Judge Hannum had chased petitioner around the courtroom, repeatedly assaulted him, and interfered with defense witnesses. Petitioner supported his motion with his own affidavit, as well as the affidavits of his brother and sister. Petitioner's trial counsel filed an affidavit contradicting petitioner's claims. Judge Hannum referred the motion to the Chief Judge for the Eastern District of Pennsylvania, after concluding that he was not permitted to examine the veracity of the allegations in petitioner's motion. Chief Judge Fullum granted petitioner's motion and reassigned the case to Judge Cahn, stating that he was bound to accept petitioner's factual allegations as true. In 1986, petitioner was convicted at his second trial and sentenced to ten years' imprisonment. Judge Cahn subsequently reduced petitioner's sentence to 40 months' imprisonment, to be followed by five years' probation. 2. In 1988, petitioner and others were charged with perjury, obstruction of justice, and conspiracy to defraud the United States in connection with the affidavits filed in support of petitioner's recusal motion. The district court dismissed the obstruction of justice and conspiracy counts. The court of appeals reversed and reinstated those counts. United States v. Rankin, 870 F.2d 109 (3d Cir. 1989). At petitioner's trial, the government presented the testimony of 18 witnesses -- the prosecutor, petitioner's trial counsel, the two case agents, Judge Hannum's deputy clerk and his law clerk, the court reporter, and eleven jurors -- to refute petitioner's allegations that Judge Hannum had chased him around the courtroom and assaulted him. Petitioner presented several witnesses who testified that they saw Judge Hannum assault or chase petitioner. Gov't C.A. Br. 8-9. The court of appeals affirmed petitioner's conviction in an unpublished judgment order. Pet. App. 1a-2a. ARGUMENT 1. Petitioner first contends (Pet. 31-36) that his false statements did not fall within 18 U.S.C. 1001 because they implicated the district court's judicial function. There is no merit to petitioner's claim. Section 1001 bars the making of a false statement "in any matter within the jurisdiction of any department or agency of the United States." In United States v. Rodgers, 466 U.S. 475, 479 (1984), the Court stated that the most natural reading of the statutory language is that it covers all matters confided to the authority of any agency or a department. Several courts of appeals, however, have held that false statements to the judiciary are covered by Section 1001 only if they relate to the court's administrative or housekeeping functions, as distinguished from the judicial proceedings themselves. See, e.g., United States v. Mayer, 775 F.2d 1387, 1388 (9th Cir. 1985); United States v. Abrahams, 604 F.2d 386, 392-393 (5th Cir. 1979); United States v. Erhardt, 381 F.2d 173, 175 (6th Cir. 1967); but see United States v. Barber, 881 F.2d 345, 350 (7th Cir. 1989), cert. denied, 110 S.Ct. 1956 (1990). See also United States v. Rodgers, 466 U.S. at 483 n.4 (noting cases). Petitioner's false statements, which were made in order to force Judge Hannum to disqualify himself from presiding at petitioner's retrial on drug charges, implicated only the district court's administrative functions. See United States v. Torbert, 496 F.2d 154, 156-157 (9th Cir.), cert. denied, 419 U.S. 857 (1974). Cf. Western Pacific Railroad Case, 345 U.S. 247, 255-258 (1953). The reassignment of a case does not implicate any judicial function because such action does not affect the merits of the case or determine the rights and liabilities of the parties in any way. Therefore, because petitioner's false statements were made in support of a motion to recuse, they did not relate to the court's adjudicative powers for purposes of the distinction some courts have drawn between such powers and administrative functions. See United States v. Rowland, 789 F.2d 1169, 1172 (5th Cir.) (filing false bond with bankruptcy court involved administrative function), cert. denied, 479 U.S. 964 (1986); United States v. Plascencia-Orosco, 768 F.2d 1074, 1076 (9th Cir. 1985) (furnishing false name to magistrate at arraignment involved administrative function). Accordingly, even if 18 U.S.C. 1001 is limited in the manner petitioner urges, he was properly convicted of violating Section 1001. 2. Petitioner next contends (Pet. 36-40) that the government did not plead or prove the obstruction of justice offense because he did no more than commit simple perjury. He correctly observes that the obstruction of justice offense described in 18 U.S.C. 1503 requires proof of a nexus between the perjury and the obstruction of the administration of justice; perjury alone is not an offense under Section 1503. See United States v. Thomas, 916 F.2d 647, 652 (11th Cir. 1990); United States v. Essex, 407 F.2d 214 (6th Cir. 1969). However, there is no requirement that the nexus be set forth in the indictment. Furthermore, the evidence was more than sufficient to demonstrate a nexus between petitioner's false statements and the obstruction of justice. a. The indictment alleged that petitioner had obstructed justice "by submitting and filing (petitioner's) affidavit, which (petitioner) then well knew contained false allegations as described in * * * Count One." The incorporated language from Count One referred to the background of the case and the specific portions of petitioner's affidavit that were alleged to be false. See United States v. Rankin, 870 F.2d at 111. Fed. R. Crim. P. 7(c)(1) states that an indictment "shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged." An indictment is sufficient if it contains all of the elements of the charged offense, notifies the defendant of what he must be prepared to meet, and protects him against a subsequent prosecution for the same offense. See, e.g., United States v. Bailey, 444 U.S. 394, 414 (1980); United States v. Hamling, 418 U.S. 87, 117 (1974); United States v. Russell, 369 U.S. 749, 763-764 (1962); see also United States v. Miller, 471 U.S. 130, 136 (1985). An indictment that tracks the statutory language is normally sufficient. See, e.g., United States v. Hamling, 418 U.S. at 117. Here, the indictment tracked the statutory language, alleged the obstruction element, and further alleged that the act causing the obstruction was the filing of petitioner's false affidavit. The indictment therefore was sufficient. It did not have to allege how the false affidavit obstructed justice. See United States v. Perkins, 748 F.2d 1519, 1526 (11th Cir. 1984). /2/ b. The evidence at trial demonstrated that petitioner's false statements had a nexus to the obstruction of justice. Furthermore, the jury was instructed that the government was required to prove "that the (false) statements had the effect of impeding the due administration of justice" and that "the making of the statements would impair the lawful function of the United States District Court and thereby require Judge Hannum's recusal." Gov't C.A. Br. 15-16. The jury properly concluded that petitioner's false statements were intended to cause Judge Hannum's removal from petitioner's retrial involving drug violations, and the evidence was more than sufficient to sustain the verdict. 3. Petitioner argues (Pet. 40-45) that the district court erred in failing to give the jury a supplemental charge during the jury's deliberations. This fact-bound issue does not merit review. During its deliberations, the jury sent out a note requesting the transcript of the testimony of co-defendant John Rankin and Gloria Frank, a defense witness. The district court explained that because the requested testimony had not yet been transcribed, the jury either could have all the testimony read or could formulate a more specific request. Shortly thereafter, the jury responded with a narrower request for that portion of John Rankin's testimony referring to the number of times that petitioner was actually struck by Judge Hannum. Rather than parse the testimony, the district court ultimately supplied the jury with the entire testimony of John Rankin and Gloria Frank. Gov't C.A. Br. 17. The following morning, petitioner requested the district court to submit a supplemental instruction to the jury, stating that it must find beyond a reasonable doubt that petitioner had not been struck at all, not merely that there were fewer strikings than alleged by the defendants. The government objected on the ground that the proposed instruction was not responsive to the jury's request to review certain testimony. The district court refused to give the instruction, although it agreed to reconsider the matter if the jury later indicated that it needed further guidance in this area. Gov't C.A. Br. 18. The district court did not abuse its discretion by failing to give petitioner's requested supplemental jury instruction. See United States v. Braverman, 522 F.2d 218, 224 (7th Cir.), cert. denied, 423 U.S. 985 (1975). The jury's initial request indicated that it wanted to review some of the evidence in the case, not that it needed supplemental instructions on the law. Similarly, the jury's second note was merely a narrowing of its earlier request, not a request for further instructions. Under these circumstances, the district court properly responded to the jury's request by furnishing it with the requested transcripts. It had no duty to instruct the jury on the law, and to do so would have invaded its deliberations. Moreover, as petitioner concedes (Pet. 42), the government never took the position at trial that the jury should find petitioner guilty if it found that Judge Hannum did strike petitioner, but did so on fewer occasions than alleged in the affidavits. Accordingly, the district court properly denied petitioner's requested supplemental instruction. 4. Petitioner asserts (Pet. 45-47) that his convictions should be set aside because the Assistant United States Attorney who prosecuted petitioner's drug trafficking case and two F.B.I. agents committed perjury at his trial on the instant charges. Petitioner did not raise this claim in the district court, and there accordingly is no record or findings by the district court on the issue. The court of appeals therefore properly declined to make the requisite findings in the first instance and to reverse petitioner's conviction on the basis of petitioner's conclusory allegations. Moreover, the prosecutor and the two F.B.I. agents were only three of the 18 witnesses who testified that Judge Hannum did not assault petitioner and chase him around the courtroom, as petitioner had contended in his affidavit. 5. Finally, petitioner contends (Pet. 48-58) that the government vindictively brought the instant prosecution because it was dissatisfied with petitioner's successful appeal of his first conviction for drug trafficking, which resulted in a reduced sentence on retrial. The district court, affirmed by the court of appeals, found no vindictiveness in this case. Gov't C.A. Br. 23. That fact-bound ruling merits no further review. The Due Process Clause bars a prosecutor from punishing a defendant because he has exercised a statutory or constitutional right. A prosecutor's pretrial charging decision, however, is not presumptively invalid merely because it was made after a defendant had exercised one of his rights. In that context, the defendant must show that the prosecutor's charging decision resulted from actual vindictiveness. See United States v. Goodwin, 457 U.S. 368, 384 (1982). In this case, the district court properly rejected petitioner's contention that the instant prosecution was begun in retaliation for his successful appeal of his first drug-trafficking conviction. The instant prosecution was initiated after petitioner's successful appeal because the offenses on which the instant prosecution is based occurred after his successful appeal. Cf. Texas v. McCullough, 475 U.S. 135 (1986) (new information between first and second sentence); United States v. Osif, 789 F.2d 1404, 1405 (9th Cir. 1986) (intervening circumstance). Petitioner's successful appeal did not insulate him from prosecution for his subsequent crimes. /3/ 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 THOMAS E. BOOTH Attorney JANUARY 1991 /1/ The procedural history of this case is described in United States v. Rankin, 870 F.2d 109 (3d Cir. 1989). /2/ Contrary to petitioner's contention (Pet. 38-39), the decision below does not conflict with United States v. Essex, 407 F.2d 214 (6th Cir. 1969). In Essex, the indictment alleged that the defendant obstructed justice by filing a false affidavit in support of a motion for a new trial. The court of appeals reversed the conviction on the ground that the indictment did not state an offense. The court's rationale, however, was that Section 1503 did not reach the defendant's conduct; it did not prescribe any special pleading rules for an indictment that charges obstruction of justice under Section 1503 by means of false statements. See United States v. Jeter, 775 F.2d 670, 676 (6th Cir. 1985). Petitioner's reliance (Pet. 40) on In re Michael, 326 U.S. 224 (1945), is also misplaced. There, the Court held only that perjury does not constitute obstruction of justice for purposes of criminal contempt. No issue concerning the reach of Section 1503 was presented. In any event, as explained above, the evidence here showed that petitioner's false statements were intended to, and did, cause the disqualification of the judge who was to preside at petitioner's trial. His conviction therefore did not rest on his false statement standing alone. /3/ Because the instant offenses were separate and distinct from petitioner's drug trafficking offenses, petitioner errs in relying on Blackledge v. Perry, 417 U.S. 21 (1974). The Court there held that a prosecutor may not increase a misdemeanor charge to a felony charge based on the same conduct following the defendant's successful appeal of his misdemeanor conviction.