JAMES ALVIN RHODES, PETITIONER V. UNITED STATES OF AMERICA No. 90-5412 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 In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A2) is unreported. JURISDICTION The judgment of the court of appeals was entered on May 8, 1990. The petition for a writ of certiorari was filed on August 6, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court properly permitted the jury to consider a drug conspiracy charged under 21 U.S.C. 846 as a predicate offense for purposes of the continuing criminal enterprise statute, 21 U.S.C. 848. 2. Whether the admission of plea agreements of government witnesses that contained a polygraph examination clause denied petitioner a fair trial. STATEMENT Following a jury trial in the United States District Court for the Western District of North Carolina, petitioner was convicted of engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. 848; conspiring to distribute marijuana, in violation of 21 U.S.C. 846; two counts of possessing marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a); and two counts of distributing marijuana, in violation of 21 U.S.C. 841(a). He was sentenced to 50 years' imprisonment without parole. The court of appeals affirmed the convictions and sentence. United States v. Rhodes, 779 F.2d 1019 (4th Cir. 1985), cert. denied, 476 U.S. 1182 (1986). Thereafter, petitioner filed a motion to vacate his sentence under 28 U.S.C. 2255. The district court vacated the sentence on petitioner's conspiracy conviction but denied the motion in all other respects. The court of appeals affirmed. Pet. App. A1-A2. 1. The evidence at trial, which is summarized in the opinion of the court of appeals on direct appeal (779 F.2d at 1022-1023), showed that petitioner participated over an extended period of time in a large-scale marijuana smuggling organization. In 1979, petitioner stored 17,000 pounds of marijuana at a farm in North Carolina and assisted others in selling the marijuana. Later, petitioner participated in a scheme to smuggle 2,000 pounds of marijuana into the State by airplane. During May and June 1979, petitioner purchased large quantities of marijuana from two Florida drug dealers for $600,000. Around Thanksgiving of that year, petitioner participated in another marijuana smuggling deal in Florida. Shortly thereafter, petitioner sent a driver to pick up between 600 and 700 pounds of marijuana from his Florida suppliers. In 1980, petitioner obtained 1,100 pounds of marijuana from Florida. Three of petitioner's former accomplices entered into plea agreements with the government and agreed to testify against petitioner at his trial. The agreements contained a clause requiring the witnesses to provide truthful information to the authorities and providing that the government had the right to verify such information by a polygraph examination. At trial, the plea agreements of two of the three witnesses were read into evidence. The prosecutor did not offer evidence that any of the witnesses had taken a polygraph examination, nor did he refer to the polygraph clauses in the plea agreements during the rest of the trial. Petitioner did not object to the admission of the plea agreements into evidence. Pet. App. B8-B13. The district court's charge on the CCE count included an instruction that the jury could consider any of the drug felonies charged in the indictment in determining whether petitioner was guilty of engaging in a continuing criminal enterprise. The court further instructed the jury that it could not find petitioner guilty on the CCE count unless it found that petitioner had committed three or more violations of the federal drug laws. Pet. App. B13-B14. On direct appeal, petitioner did not raise either the polygraph examination clause issue or the CCE jury instruction issue. The court of appeals affirmed petitioner's conviction, 779 F.2d 1019, and this Court denied certiorari, 476 U.S. 1182. 2. In February 1988, petitioner filed a motion to vacate his sentence under Section 2255. The motion asserted, among other things, that the trial court had erred by improperly instructing the jury on the CCE count and by admitting into evidence plea agreements that contained the polygraph examination clause. The magistrate recommended that petitioner's sentence on the conspiracy count be vacated, but that the motion be denied in all other respects. Pet. App. B1-B32. As to petitioner's complaint about the admission of the plea agreements, the magistrate concluded that petitioner had failed to raise that claim at trial or on appeal, and that petitioner therefore was not entitled to relief under Section 2255. The magistrate further concluded that admission of the plea agreements, if error, was harmless beyond a reasonable doubt. The magistrate noted that the government did not introduce evidence of any polygraph examination result; that petitioner's attorney vigorously cross-examined the government's witnesses; that the district court gave an extensive charge concerning the credibility of witnesses; and that the testimony of several government witnesses without plea agreements implicated petitioner. Pet. App. B8-B13. As to the CCE instruction, the magistrate relied on the Fourth Circuit's en banc decision in United States v. Ricks, 802 F.2d 731, 737, cert. denied, 479 U.S. 1009 (1986), and held that the district court properly instructed the jury that it could find the charged drug conspiracy under Section 846 to be one of the predicate felony offenses for purpose of the Section 848 CCE offense. Holding that a Section 846 conspiracy is a lesser included offense of the CCE offense, however, the magistrate concluded that it was error to impose separate sentences under both Sections 846 and 848. The magistrate therefore recommended that petitioner's sentence on the Section 846 conspiracy be set aside. Pet. App. B13-B16. The district court adopted the magistrate's recommendations. Accordingly, the court vacated petitioner's sentence on the Section 846 count but denied petitioner's motion in all other respects. The court of appeals affirmed "on the reasoning of the district court" in an unpublished per curiam opinion. Pet. App. A2. ARGUMENT Petitioner did not raise on direct appeal either of the issues presented in his Section 2255 motion. /1/ Petitioner has not justified that omission, nor has he demonstrated the type of prejudice that would entitle him to relief under Section 2255. Accordingly, the courts below properly denied his motion. 1. Section 2255 is not a substitute for a direct appeal. If a defendant failed to raise a claim at trial or on direct appeal, he cannot prevail on that claim in a Section 2255 motion unless he shows both "cause" and "prejudice" for the procedural default. United States v. Frady, 456 U.S. 152, 167 (1982). To demonstrate "cause," the defendant ordinarily must show that his default was due to a factor external to the defense, such as interference by authorities or the practical unavailability of the legal or factual basis for the claim. Murray v. Carrier, 477 U.S. 478, 488 (1986). In addition, ineffective assistance of counsel may excuse a procedural default. Ibid. To demonstrate prejudice, the defendant must show that the error at trial resulted in not merely the possibility of prejudice, but actual and substantial disadvantage to him. United States v. Frady, 456 U.S. at 170. If the error in question resulted in the conviction of a person who is actually innocent, or seriously undermined the accuracy of the guilt or sentencing determination, the petitioner may be excused from showing cause or prejudice. Smith v. Murray, 477 U.S. 527, 539 (1986). 2. Petitioner has not demonstrated either cause or prejudice in this case. As to "cause," petitioner offers no explanation for failing to raise his claims on direct appeal. Petitioner does not contend that the authorities interfered with the presentation of his claims, or that the claims were practically unavailable to him at the time of his direct appeal, or that his counsel was ineffective as to these claims, or that he is innocent. In addition, as shown below, petitioner has failed to show prejudice. a. Petitioner contends that the district court erred in instructing the jury that it could consider the drug conspiracy count under Section 846 as a predicate offense for the CCE count under Section 848. He maintains that a Section 846 conspiracy cannot be a predicate offense under the CCE statute because it is a lesser included offense of a CCE violation. Petitioner's argument, even if correct, would not change the outcome in his case. Section 848(c) of Title 21 provides that a person is engaged in a continuing criminal enterprise if, among other things, "he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony" and the violation "is part of a continuing series of violations * * * which are undertaken * * * in concert with five or more other persons." Most courts of appeals have concluded that a "series" consists of at least three predicate offenses, see, e.g., United States v. Amend, 791 F.2d 1120, 1126 (4th Cir.), cert. denied, 479 U.S. 930 (1986); United States v. Sterling, 742 F.2d 521, 526 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985), and that a drug conspiracy charged under Section 846 qualifies as a predicate offense, see, e.g., United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570-1571 (9th Cir. 1989), cert. denied, 110 S. Ct. 3237 (1990); United States v. Hall, 843 F.2d 408, 410 (10th Cir. 1988); United States v. Ricks, 802 F.2d at 737; United States v. Schuster, 769 F.2d 337, 345 (6th Cir. 1985), cert. denied, 475 U.S. 1021 (1986); United States v. Jones, 763 F.2d 518, 524-525 (2d Cir.), cert. denied, 474 U.S. 981 (1985); United States v. Brantley, 733 F.2d 1429, 1436 n.14 (11th Cir. 1984), cert. denied, 470 U.S. 1006 (1985); United States v. Middleton, 673 F.2d 31, 33 (1st Cir. 1982). To be sure, the courts of appeals have held that a Section 846 conspiracy is a lesser included offense of a CCE violation if the conspiracy involves the same underlying facts. But that means only that the government cannot obtain separate judgments and multiple punishments under both Section 846 and Section 848. It does not follow that a Section 846 offense may not be a predicate offense under Section 848. See United States v. Hall, 843 F.2d at 410-411. In United States v. Baker, 905 F.2d 1100 (7th Cir. 1990), cert. denied, No. 89-5500 (Oct. 1, 1990), the Seventh Circuit recently took a different approach to reach the same result. Baker held that a Section 846 offense is either a lesser included offense or an "unrelated" offense, and therefore should not count as a predicate offense under Section 848. But the court also held that the government must prove only two substantive drug violations to show a series of continuing violations. 905 F.2d at 1104-1105. The Seventh Circuit noted that "(t)his brings us into harmony in results, although not in exposition, with the seven other circuits that set a minimum of three violations and allow the included conspiracy to serve as one." Id. at 1105. The result in this case would be no different if the court of appeals had applied the reasoning of the Seventh Circuit in Baker. The district court's instruction permitted the jury to use the charged Section 846 violation as a predicate offense for the Section 848 count, but required the jury to find a series of at least three predicate offenses to convict petitioner. Petitioner would have been no better off if the jury had been told that it needed to find only two predicate offenses to convict on the CCE count, but that it could not consider the Section 846 conspiracy as a predicate offense. See Baker, 905 F.2d at 1105. In any event, petitioner was convicted of four substantive drug offenses (two counts of possession with intent to distribute marijuana and two counts of distribution of marijuana). Because petitioner's substantive offenses were more than sufficient to satisfy either version of the "series" requirement, petitioner was not prejudiced by the district court's instruction. This case therefore presents no occasion for resolving the differences between the Seventh Circuit's Baker decision and the decisions of the other courts of appeals. /2/ b. Petitioner's fact-bound contention that the prosecutor improperly introduced the polygraph clauses into evidence fares no better, as there is no reason to think that admission of the polygraph clauses affected the jury's verdict. No polygraph results were admitted into evidence, and the prosecutor did not suggest that any witness took a polygraph examination. The government's witnesses were cross-examined concerning their biases and motives, and the district court instructed the jury concerning witnesses with plea agreements and their motives to testify. Finally, witnesses testifying without plea agreements implicated petitioner in his drug trafficking scheme. Under these circumstances, any error in the admission of the plea agreements was harmless. See, e.g., United States v. Rosa, 891 F.2d 1063, 1067-1068 (3d Cir. 1989); United States v. Herrera, 832 F.2d 833, 835-836 (4th Cir. 1987). Because the admission of the plea agreements did not prejudice petitioner, it does not entitle him to relief under Section 2255. /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 OCTOBER 1990 /1/ In addition, petitioner apparently failed to raise either issue at his trial. See Pet. App. B10 (polygraph clause). /2/ Petitioner contends (Pet. 7) that the courts below erred in not vacating his conviction on the Section 846 conspiracy count as well as his sentence on that count. In Ball v. United States, 470 U.S. 856 (1985), the Court held that, where Congress has not authorized separate punishment for an offense, the sentencing court must vacate the conviction as well as the sentence so that the defendant is not exposed to the adverse collateral consequences of the conviction, such as delayed consideration of parole or increased punishment as a recidivist at a subsequent prosecution. Because petitioner is serving a 50-year sentence without the possibility of parole, the likelihood of such adverse collateral consequences may be more theoretical than real in his case. But the short answer to this contention is that petitioner failed to raise the issue in his Section 2255 motion, and so cannot raise it in a petition for certiorari. /3/ Petitioner also contends (Pet. 11-13) that the prosecutor made improper remarks during his closing argument that aggravated the harm caused by the admission of the plea agreements. The prosecutor's suggestion that the government witnesses were telling the truth appears to have been improper, but it did not affect the trial so as to deny petitioner due process. See Darden v. Wainwright, 477 U.S. 168, 178-183 (1986); Donnelly v. DeChristoforo, 416 U.S. 637 (1974). Other parts of the prosecutor's closing argument -- his query whether "we" will allow drugs to enter the county, and his statements that drug dealers were "living it up" and that society had to reap the "misery" of petitioner's drug activities -- admittedly were a strong commentary on the evils of drug trafficking. But those harms are well-known to most members of society. In the context of the entire trial, petitioner was not prejudiced by those remarks, even if they were improper.