ARNOLDO DE DIOS VALDES, PETITIONER V. UNITED STATES OF AMERICA No. 90-6664 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 unreported. JURISDICTION The judgment of the court of appeals was entered on October 5, 1990. The petition for a writ of certiorari was filed on January 2, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether evidence seized by state law enforcement officers was properly admitted at trial. 2. Whether the evidence was sufficient to support petitioner's conviction. 3. Whether the quantity of drugs involved in a drug conspiracy is a question for the sentencing judge or an element of the offense to be determined by the jury. 4. Whether the procedures for determining the quantity of drugs under the Sentencing Guidelines deprive defendants of due process of law. STATEMENT Following a jury trial in the United States District Court for the District of New Jersey, petitioner was convicted on one count of conspiracy to distribute and to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. 846. He was sentenced to a 78-month term of imprisonment, to be followed by a 4-year term of supervised release. The evidence at trial showed that between December 1988 and April 1989, petitioner and two others, Michael Alfano and Luis Alberto Gutierrez-Jaramillo, engaged in a conspiracy to acquire and distribute large quantities of cocaine. /1/ The evidence consisted primarily of tape-recorded telephone conversations conducted by the co-defendants. Gov't C.A. Br. 3. The taped conversations used code words to refer to drugs and drug transactions. To assist the jury in understanding the conversations, an experienced DEA agent testified about the coded terms used by drug traffickers, such as "product," or "car," to refer to certain drugs. Gov't C.A. Br. 4. In addition to the taped conversations, the government introduced evidence seized by New Jersey police at Alfano's home on February 8, 1989, in a search incident to Alfano's arrest. The police recovered from Alfano's person a beeper and a small amount of cocaine concealed in a lottery ticket. Gov't C.A. Br. 5. In a subsequent search of Alfano's apartment, the police recovered from his bedroom dresser an Ohaus scale, glassine bags, and various other drug paraphernalia covered with cocaine residue. A handgun was found in Alfano's closet. Also introduced into evidence were a beeper and a compact containing cocaine that were found during a search of petitioner's apartment at the time of his arrest, and a phone book recovered from Gutierrez that contained Alfano's name and beeper number. Id. at 5. ARGUMENT 1. Petitioner first contends (Pet. 4-17) that the evidence seized by local police from Alfano's apartment should not have been admitted at trial. The evidence seized during the search, which included traces of cocaine and drug paraphernalia, was direct evidence of Alfano's involvement in drug trafficking, and thus direct evidence of the existence of the charged conspiracy. It tended to show that Alfano was distributing drugs during the period of the conspiracy, and it supported the government's contention that the recorded telephone conversations between Alfano and Gutierrez-Jaramillo during the same period related to drug transactions. The district court correctly rejected petitioner's contention that the evidence was improperly admitted under Fed. R. Evid. 404(b) as evidence of other criminal activity. Even if the traces of drugs found in Alfano's apartment had been obtained from a source other than petitioner, the evidence that Alfano was involved in drug dealing during the period of his close association with the other conspirators, including petitioner, made it more likely that Alfano's relationship with the other conspirators pertained to drugs, rather than some innocent purposes. Moreover, because proof of Alfano's criminal conduct was not significantly prejudicial to petitioner, the probative value of this evidence easily outweighed any possible unfair prejudice. Petitioner also contends (Pet. 11-17) that the federal government should have been collaterally estopped from admitting evidence of Alfano's state crime in the co-conspirators' federal prosecution. He claims that, because Alfano was conditionally discharged on the state charges that led to the search, the evidence gathered during the search should not have been used in any subsequent prosecution. Under New Jersey law, certain defendants charged with a drug offense may submit to a drug treatment program. Upon completion of the program, the criminal charges are dismissed without adjudication of guilt. Relying on Ashe v. Swenson, 397 U.S. 436 (1970), petitioner argues (Pet. 15) that Alfano's conditional discharge under the New Jersey program bars the government from introducing against petitioner evidence relative to Alfano. However, Ashe v. Swenson does not remotely support petitioner's claim. In that case, the Court held that the government may not relitigate an issue of ultimate fact previously determined between the parties. The parties in the New Jersey proceeding and in the federal proceeding are different, and the New Jersey statute specifically provides that the conditional discharge proceeding does not resolve the question of guilt. In any event, the Double Jeopardy Clause does not bar successive State and federal prosecutions, even for the same conduct. See Abbate v. United States, 359 U.S. 187, 196 (1959); United States v. Paiz, 905 F.2d 1014 (7th Cir. 1990). Furthermore, the question whether Alfano committed the New Jersey offense would not resolve the question whether he or petitioner engaged in the instant conspiracy. The jury in this case could reasonably have concluded that petitioner was a co-conspirator with Alfano and Gutierrez-Jaramillo whether or not it believed that Alfano had engaged in the state-charged conduct. See Dowling v. United States, 110 S. Ct. 668, 673 (1990). 2. Petitioner next argues (Pet. 18-20) that the evidence was insufficient to support his conviction, because the government failed to provide expert testimony regarding the meaning of the coded conversations. Under Fed. R. Evid. 702, expert testimony is admissible to assist the trier of fact in understanding the evidence, including coded drug conversations. See, e.g., United States v. Castiello, 915 F.2d 1 (1st Cir. 1990); United States v. Dicker, 853 F.2d 1103 (3d Cir. 1988). However, neither the rule of evidence nor the cases applying it require the use of expert testimony to explain those conversations. In any event, expert testimony was introduced: a DEA agent explained to the jury the meaning of many of the terms used in the taped conversations. Contrary to petitioner's suggestion, there was no requirement that the expert witness be familiar with the case, or expound on the particular conversations at issue. The jury could reasonably infer from the evidence -- the taped conversations and the general testimony of the DEA agent -- that drug transaction conversations are often conducted in code and that the coded terms used in the conversations at issue in this case referred to drugs and drug quantities. The jury verdict was thus based on reasonable inferences from the evidence, not on mere speculation. 3. Petitioner argues (Pet. 21-25) that the quantity of drugs involved in an offense is a jury question rather than an issue to be resolved by the sentencing court, and contends that the circuits are divided on the question. The courts of appeals have held that 21 U.S.C. 841(b) describes sentencing factors to be resolved by the sentencing court rather than elements of an offense under 21 U.S.C. 841(a) that must be proved to the jury. See, e.g., United States v. Palaise, 921 F.2d 684 (7th Cir. 1990); United States v. Turpin, 920 F.2d 1377 (8th Cir. 1990); United States v. Cross, 916 F.2d 622 (11th Cir. 1990). /2/ These decisions reflect the plain meaning of the statute. The substantive offense is defined in 21 U.S.C. 841(a) and does not include the quantity of drugs as an element of the offense. Section 841(b) does not define the offense, but instead provides that, with certain exceptions, "any person who violates subsection (a) of this section shall be sentenced as follows * * * ," specifying maximum, and sometimes minimum, penalties that apply if the offense involves a particular quantity of a designated drug. Thus, there is no statutory basis for concluding that the quantity of drugs is an element of the offense. Instead, Section 841(b) "'is merely a penalty provision, and its provisions are wholly separate from the definition of unlawful acts included in 21 U.S.C. Section 841(a).'" United States v. Klein, 860 F.2d at 1495 (quoting United States v. Normandeau, 800 F.2d at 956). See also McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) (the "legislature's definition of the elements of the offense is usually dispositive" in determining which issues must be charged and proved to the jury). Petitioner errs in asserting (Pet. 23-24) that the decisions in United States v. McHugh, 769 F.2d 860 (1st Cir. 1985), and United States v. Alvarez, 735 F.2d 461 (11th Cir. 1984), conflict with the decisions of other courts of appeals on this question. The courts in McHugh and Alvarez held that drug quantity was an element of the offense created by 21 U.S.C. 841(b)(6) (1982). /3/ Those cases did not deal with Section 841(b)(1), the penalty provision at issue in this case. As the court explained in United States v. Gibbs, 813 F.2d at 599-600, the McHugh court recognized that its holding had no application to other parts of Section 841(b) because 21 U.S.C. 841(b)(6) described both the offense and the penalty in a single provision while 21 U.S.C. 841(a) and 841(b)(1) prescribe the offense and the penalty in separate provisions. Both the First and Eleventh Circuits have joined their sister circuits in subsequently holding that 21 U.S.C. 841(b)(1) does not describe the elements of the offense. See United States v. Rule, 905 F.2d 497 (1st Cir. 1990) (per curiam); United States v. Cross, 916 F.2d 622 (11th Cir. 1990). 4. Finally, petitioner renews his contention (Pet. 26-30) that the sentencing hearing violated his right to due process of law. He claims that the standard of proof for sentencing factors, such as the quantity of drugs at issue in the case, should be proof beyond a reasonable doubt, and that unreliable hearsay should be inadmissible at sentencing. These issues do not merit this Court's consideration. a. The courts of appeals that have addressed the issue have held that the burden of proving the quantity of drugs at sentencing is on the government. See, e.g., United States v. Nelson, 922 F.2d 311 (6th Cir. 1990); United States v. Mieres-Borges, 919 F.2d 652 (11th Cir. 1990); United States v. Engleman, 916 F.2d 179, 182 (4th Cir. 1990). The courts of appeals have also uniformly held that the sentencing judge may resolve disputed facts at sentencing by a preponderance of the evidence. See, e.g., United States v. Rodriquez-Cardona, No. 89-1611 (1st Cir. Jan. 23, 1991); United States v. Ibanez, No. 90-1246 (2d Cir. Jan. 15, 1991); United States v. Malbrough, 922 F.2d 458 (8th Cir. 1990); United States v. Nelson, 922 F.2d 311 (6th Cir. 1990); United States v. Easterling, 921 F.2d 1073 (10th Cir. 1990). There is no merit to petitioner's contention (Pet. 26) that the government is constitutionally required to prove beyond a reasonable doubt the drug quantity that is used to calculate a defendant's sentence under the Sentencing Guidelines. As we explained in our brief in opposition to certiorari in United States v. Keener, cert. denied, No. 89-6786 (June 4, 1990), /4/ it had long been settled that the reasonable-doubt standard does not apply to the findings made at sentencing, and that the preponderance standard satisfies due process concerns. See McMillan v. Pennsylvania, 477 U.S. 79, 84-93 (1986); United States v. Lee, 818 F.2d 1052, 1057 (2d Cir. 1987), cert. denied, 464 U.S. 956 (1988); United States v. Davis, 710 F.2d 104, 106 (3d Cir.) (collecting cases), cert. denied, 464 U.S. 1001 (1983). As the Court explained in McMillan, 477 U.S. at 84-91, the reasonable-doubt standard applies only to the factual findings necessary to convict the defendant of a crime, and not to facts pertinent to fixing the sentence. Neither the Sentencing Reform Act of 1984, 18 U.S.C. 3551 et seq. and 28 U.S.C. 991-998, nor the Sentencing Guidelines require the government to bear a greater burden of proof at sentencing, and there is no reason why a higher standard of proof should apply to the findings made under the Guidelines than to the mandatory minimum sentencing scheme considered in McMillan and other cases decided before the Guidelines went into effect. b. Petitioner contends that the sentencing court's determination of the quantity of drugs at issue in this case was based on unreliable hearsay. With respect to quantity of drugs, petitioner's complaint that the district court relied on a letter from co-conspirator Alfano to the court, see C.A. Joint App. A1274-A1275, is not supported by the record. Rather, the sentencing judge placed virtually exclusive reliance on the quantities of drugs discussed in the tapes of the telephone conversations admitted in evidence without objection by petitioner. See Pet. App. 9a-17a. Petitioner also contends (Pet. 29) that the judge should not have relied on the tapes to fix the quantity of drugs for sentencing, because the expert testimony was inadequate to explain the contents of the tapes. As we have noted, however, there was expert testimony regarding the terms used on the tapes, which was sufficient to justify the court's reliance on those tapes for sentencing. The Due Process Clause requires only that the sentence be based on reasonably reliable information, and that standard was met here. See, e.g., Townsend v. Burke, 334 U.S. 736, 741 (1948); United States v. Wilson, 900 F.2d at 1352; United States v. Brady, 895 F.2d 538, 542 (9th Cir. 1990). Further review is therefore unwarranted. 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 KAREN SKRIVSETH Attorney MARCH 1991 /1/ This Court recently denied the co-conspirators' petitions for a writ of certiorari. Luis Alberto Gutierrez-Jaramillo v. United States, cert. denied, No. 90-6574 (Feb. 19, 1991); Michael Alfano v. United States, cert. denied, No. 90-6708 (Feb. 19, 1991). /2/ See also United States v. Walker, 915 F.2d 480 (9th Cir. 1990); United States v. Delario, 912 F.2d 766 (5th Cir. 1990); United States v. Paiz, 905 F.2d 1014 (7th Cir. 1990); United States v. Campuzano, 905 F.2d 677 (2d Cir. 1990); United States v. Rule, 905 F.2d 497 (1st Cir. 1990) (per curiam); United States v. Jenkins, 866 F.2d 331, 334 (10th Cir. 1989); United States v. Powell, 886 F.2d 81 (4th Cir. 1989), cert. denied, 110 S. Ct. 1144 (1990); United States v. Wood, 834 F.2d 1382, 1388-1390 (8th Cir. 1987); United States v. Gibbs, 813 F.2d 596, 599 (3d Cir.), cert. denied, 484 U.S. 822 (1987). /3/ Section 841(b)(6)(1982) stated, in part, that "(i)n the case of a violation of subsection (a) of this section involving a quantity of marijuana exceeding 1,000 pounds, such person shall be sentenced to a term of imprisonment of not more than 15 years, and in addition, may be fined not more than $125,000." /4/ We have sent a copy of our brief in opposition to certiorari in Keener to counsel for petitioner.