No. 95-693 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 JAMES WOODROW MULLIS, PETITIONER v. UNITED STATES OF AMERICA 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 DREW S. DAYS, III Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS M. GANNON Attorney Department of Justice Washington, D.C. 20530 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the evidence was sufficient to support petitioner's conviction for money laundering. 2. Whether the court of appeals erred in not apply- ing an amendment to Federal Rule of Criminal Pro- cedure 29(b) retroactively. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 1 Argument . . . . 9 Conclusion . . . . 20 TABLE OF AUTHORITIES Cases: Bradley v. School Board of Richmond, 416 U.S. 696 (1974) . . . . 18 Griffith v. Kentucky, 479 U. S. 314 (1987) . . . . 18, 19 Norris v. United States, 190 F.2d 186(5th Cir. 1951) . . . . 18 Stallings v. Tansy, 28 F.3d 1018(10th Cir. 1994) . . . . 15 United States v. Allison, 908 F.2d 1531(11th Cir. 1990), cert. denied, 500 U.S. 904(1991) . . . . 12 United States v. Bauer, 19 F.3d 409(8th Cir. 1994) . . . . 12 United States v. Blackman, 904 F.2d 1250(8th Cir. 1990) . . . . 11 United States v. Brown. 31 F.3d 484(7th Cir. 1994) . . . . 10 United States v. Flynt, 15 F.3d 1002(11th Cir. 1994) . . . . 10 United States v. Friedman, 998 F.2d 53(2d Cir. 1993) . . . . 11-12 United States v. Garcia-Emanuel, 14 F.3d 1469 (10th Cir. 1994) . . . . 10 United States v. Isabel, 945 F.2d 1193(lst Cir. 1991) . . . . 11 United States v. Jackson, 983 F.2d 757(7th Cir. 1993) . . . . 11 United States v. Jenkins, 928 F.2d 1175(D.C. Cir. 1991) . . . . 13, 14 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page United States v. Kenny, 645 F.2d 1323 (9th Cir.), cert. denied, 452 U.S. 920 & 454 U.S. 828 (1981) . . . . 12, 13 United States v. Lovett, 964 F.2d 1029 (10th Cir.), cert. denied, 113 S. Ct. 169 (1992) . . . . 10 United States v. Sliker, 751 F.2d 477 (2d Cir. 1984), cert. denied, 470 U.S. 1058 & 471 U.S. 1137 (1985) . . . . 14 United States v. Thomas, 8 F.3d 1552 (11th Cir. 1993) . . . . 8 United States v. Thorne, 997 F.2d 1504 (D.C. Cir.), cert. denied, 114 S. Ct. 668 (1993) . . . . 14 United States v.. Zafiro, 945 F.2d 881 (7th Cir. 1991), aff'd, 506 U.S. 534 (1993) . . . . 12, 13 United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993) . . . . 13, 14, 15, 16 Walker v. Waltham Housing Authority, 44 F.3d 1042 (1st Cir. 1995) . . . . 15 Wright v. West, 505 U.S. 277 (1992) . . . . 12 Statutes and rules: 18 U.S.C. 924(c)(1) . . . . 2 18 U.S.C. 1956(a)(1)(B)(i) . . . . 2, 9, 10 21 U.S.C. 843 . . . . 2 21 U.S.C. 846 . . . . 2 Fed. R. Crim. P.: Rule 29 advisory committee's note . . . . 17, 19 Rule 29(a) . . . . 5, 8 Rule 29(b) . . . . 8, 9, 16, 17, 18, 19 Miscellaneous: 3A Charles Alan Wright, Federal Practice and Procedure (2d ed. 1982) . . . . 18 ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 No. 95-693 JAMES WOODROW MULLIS, PETITIONER v. UNITED STATES OF AMERICA 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 (Pet. App. A1- A9) is reported at 53 F.3d 312. JURISDICTION The judgment of the court of appeals was entered on May 15, 1995. A petition for rehearing was denied on July 11, 1995. Pet. App. C1-C3. The petition for a writ of certiorari was filed on October 10, 1995 (a Tuesday following a Monday holiday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the Southern District of Georgia petition- (1) ---------------------------------------- Page Break ---------------------------------------- 2 er was convicted of conspiring to distribute marijuana and cocaine, in violation of 21 U.S.C. 846 (Count 1), and of money laundering, in violation of 18 U.S.C. 1956(a)(l)(B)(i) (Count 3). The district court sen- tenced him to 124 months' imprisonment, to be fol- lowed by a five-year period of supervised release. Gov't C.A. Br. 2-3.1 The court of appeals affirmed. Pet. App. A1-A9. 1. The evidence at trial established that petitioner and co-defendant. Floyd Brown were members of an organization headed by Gene Collins that transport- ed marijuana from Texas to Georgia, where the marijuana was distributed. The evidence also showed that Collins-assisted by petitioner, Brown, and co- defendant Paul Wendell Calhoun-laundered the proceeds of the marijuana sales by using those pro- ceeds to purchase a Vidalia, Georgia, nightclub known as the "292 Club," in the name of a nominee corpor- ation, the Phoenix Timber Company. The govern- ment's evidence included the testimony of Collins and ___________________(footnotes) 1 A co-defendant, Floyd Brown, who has also petitioned for a writ of certiorari (see Brown v. United States, petition for cert. pending, No. 95-6419), was convicted of the same offenses and sentenced to a_ term of 121 months' imprisonment, to be followed by a five-year period of supervised release. Another co-defendant, Paul Wendell Calhoun, was convicted of the money laundering offense and sentenced to a term of 36 months' imprisonment, to be followed by a five-year period of supervised release. . The jury acquitted Calhoun of conspiring to distribute marijuana (21 U.S.C. 846) (Count 1), and acquitted petitioner and Brown of using a firearm during and in relation to a drug trafficking crime (18 U.S.C. 924(c)(1)) (Count 4). Co- defendants Darrell Robitzsch and Murphy Stokes were found not guilty of drug conspiracy charges (21 U.S.C. 846) (Count 1) and of using a telephone to facilitate a drug trafficking crime (21 U.S.C. 843) (Count 6). Gov't C.A. Br. 2 & n.1. ---------------------------------------- Page Break ---------------------------------------- 3 other members of his organization, who testified pursuant to plea agreements with the government, and documentary and other evidence corroborating that testimony. See Gov't C.A. Br. 3-15. Collins' organization began to obtain marijuana from Texas in December 1990, approximately one year after Collins had been released from prison, where he had served a sentence for conspiring to distribute marijuana. Following his release from prison, Collins and Brown rented a 60-acre farm in Stillmore, Georgia, under the name "B & C Farms." After the farm proved unsuccessful growing legal produce, Collins turned to Ceyetano Montez-Flores (Tano), whom Collins had met in prison and who had offered to help Collins reenter the marijuana busi- ness after his release. In December 1990, through his connection with Tano, Collins began to obtain marijuana from Texas. Collins also entered into an agreement with James Walter ("Buddy") Williams, another marijuana trafficker, under which Williams and others would sell, in Georgia, the marijuana that Collins had transported there from Texas. Gov't C.A. Br. 3-5. On Christmas Eve, 1990, Collins met petitioner at the 292 Club and offered to hire him to haul marijuana from Texas to Georgia. Petitioner, who was experi- encing financial difficulties, accepted that offer and drove for Collins on three marijuana-related car trips to Texas. Petitioner also transported marijuana within Georgia for Collins. Petitioner also helped Collins to obtain his probation officer's permission to travel freely in connection with his marijuana busi- ness, by purporting to substantiate Collins' false statement to the officer that Collins' travel would be for a lawful job with petitioner at a logging supply ---------------------------------------- Page Break ---------------------------------------- 4 company. Between December 1990 and March 1991, the Collins organization had eight drivers and four trucks that traveled between Texas and Georgia on marijuana-related business; those drivers included petitioner and Brown. Pet. App. A1-A2; Gov't C.A. Br. 6-9. In December 1990 and January 1991, Collins and petitioner discussed starting a timber business, to be known as the Phoenix Timber Company (PTC), and to be incorporated under the names of other persons. The project, however, was delayed by persistent rainy weather; by the time PTC was actually incorporated on January 29, 1991, under the name of petitioner's girlfriend, Collins and petitioner had abandoned their plan of entering the timber business. Instead, Cal- houn, Collins' attorney, had recommended to Collins that Collins incorporate PTC and that he use the new corporate entity to purchase the 292 Club with proceeds of narcotics sales, because the authorities would be unable to trace that purchase to Collins. Gov't C.A. Br. 9-10. Collins thereafter arranged to purchase the 292 Club from its owner, Dan McSwain, for $53,000. In January 1991, Collins gave McSwain $5,000 in cash proceeds of marijuana sales as a down payment for the club. McSwain, however, advised Collins that he could not keep the entire $5,000 in cash and would require an alternative form of payment. Collins thereupon instructed petitioner and Brown each to go to a separate bank and to obtain a $2,000 cashier's check that showed Calhoun (not Collins) as the re- mitter. As Collins testified at trial, petitioner knew that the $4,000 that Collins provided to him and Brown for the cashier's checks represented mari- juana proceeds. A cashier's check and a bank money ---------------------------------------- Page Break ---------------------------------------- 5 order, both for $2,000 and both payable to McSwain, were in fact obtained with cash at local banks around January 22, 1991. Both instruments showed Calhoun as remitter. Pet. App. A2; Gov't C.A. Br. 10-11. When Collins returned from Texas, he asked petitioner and Brown whether they had obtained the cashier's checks. Petitioner and Brown assured Collins that they had done so, and that, pursuant to petitioner's instructions, they had taken the checks to Calhoun's secretary. McSwain thereupon met with Collins at Calhoun's office, and exchanged the $5,000 in cash that Collins had given him for the cashier's check, the bank money order, and $1,000 in cash. Collins later used an additional approximately $50,000 in marijuana proceeds to complete the purchase of the club by PTC. Gov't C.A. Br. 11-13. In late January 1991, Tano called Collins from Texas, stated that he had 800 pounds of marijuana, and asked Collins to come pick up that marijuana in a truck, and to bring $200,000 in cash with him. At Collins's direction, Williams and others brought trash bags containing $200,000 to the 292 Club. Williams, petitioner, and several other members of Collins' organization counted the $200,000 while. Brown served as lookout. Petitioner was wearing a pistol in a shoulder holster; Collins described him as "my bodyguard." Shortly thereafter, in early Feb- ruary 1991, Collins' organization began to unravel when four of his drivers were arrested in Austin, Texas. Gov't C.A. Br. 13-15. 2. At the close of the government's case, petitioner _. moved under Federal Rule of Criminal Procedure 29(a) for a judgment of acquittal on the money laun- dering count. Pet. App. B2-B3. The district court stated that, although it had "some concerns" over ---------------------------------------- Page Break ---------------------------------------- 6 the Rule 29 motions filed by petitioner and his co- defendants, it would "provisionally" deny those mo- tions. Id. at B3. Petitioner thereafter testified in his own defense. He denied knowing that Collins was in the drug business and participating in that business or the laundering of its proceeds. See id. at A2-A3; Gov't C.A. Br. 15-16. At the close of the defense cases, the court advised petitioner and his co-defendants that it would consider their motions for judgments of acquittal as having been renewed. The court there- upon denied those motions. Pet. App. B3. 3. A divided panel of the court of appeals held that the evidence was sufficient to support petitioner's money laundering conviction. Pet. App. A1-A9.2 The court held that the government's evidence alone "was possibly enough to prove guilt beyond a reasonable doubt," because that evidence had shown that peti- tioner "knew that Collins' money came from the marijuana business," and because "the fact, among other things, that- [petitioner] showed Calhoun as the remitter of the check might properly allow a jury to infer that [petitioner] knew the purchase of the 292 Club was intended to hide Collins' drug proceeds." Id. at A2. The court stated, however, that it was unnec- essary "to decide finally whether the government's evidence alone was enough to prove guilt." Ibid. The court explained that when a defendant whose motion for a judgment of acquittal at the close of the gov- ernment's case is denied takes the stand in his own ___________________(footnotes) 2 The court of appeals unanimously and summarily affirmed the drug conspiracy convictions of petitioner and Brown, and the money laundering convictions of Brown and Calhoun, See Pet. App. A1 n.1; id. at A4 (Moye, D.J., concurring and dissenting). ---------------------------------------- Page Break ---------------------------------------- 7 defense, he risks bolstering the government's case. Moreover, the court stated, "a statement by a defen- dant, if disbelieved by the jury, may be considered as substantive evidence of the defendant's guilt," be- cause the jury may "conclude [that] the opposite of his testimony is true." Id. at A3. In this case, the court of appeals noted, petitioner had testified "that he did not know that Gene Collins was in the drug business" and "that he was in no way involved in helping Collins buy the 292 Club." Pet. App. A3. And, the court stated, the jury, "hearing [petitioner's] words and seeing his demeanor, was entitled to disbelieve [his] testimony and, in fact, to believe the opposite of what [he] said." Ibid. The court explained (ibid.) (citations omitted): At least where some corroborative evidence of guilt exists for the charged offense (as is true in this case where, for example, there was evidence that [petitioner] helped convert cash to a cashier's check to advance the purchase of the 292 Club) and the defendant takes the stand in his own defense, the defendant's testimony, denying guilt, may establish, by itself, elements of the offense. This rule applies with special force where the ele- ments to be proved for a conviction include highly subjective elements: for example, the defendant's intent or knowledge, such as knowing the pur- chase of the 292 Club was intended to bide Collins' drug proceeds. Experience tells us that, where the issues in litigation involve highly subjective matters, the appearance and demeanor of the wit- nesses is of particular significance. The court of appeals also rejected the dissenting judge's argument that a recent amendment to Federal ---------------------------------------- Page Break ---------------------------------------- 8 Rule of Criminal Procedure 29(b) allowed petitioner to challenge the sufficiency of the evidence presented solely in the government's case-in-chief. That amend- ment provides that, when a district court "reserves decision [on a motion for judgment of acquittal], it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P. 29(b) (effective Dec. 1, 1994). The. court of appeals noted that petitioner's case had been tried before the December 1, 1994, effective date of the amendment, and that retroactive application of the amended rule was "neither just nor practical." Pet. App. A2 n.3. Moreover, the court noted, circuit precedent before the effective date-of the amended rule provided that a defendant who presents evidence waives the right to appeal the denial of a Rule 29(a) motion made and denied at the close of the government's case, and may instead challenge only the sufficiency of "all evidence presented in the case, including evidence put on by the defendant." Ibid. (citing United States v. Thomas, 8 F.3d 1552,1558 n.12 (11th Cir. 1993)). Senior District Judge Moye dissented. Pet. App. A4-A9. He argued (id. at A4) that the evidence in the government's case-in-chief was insufficient to support petitioner's money laundering conviction. He further argued that the majority had erred in hold- ing that petitioner's disbelieved testimony could be treated on appeal as substantive evidence of his guilt. That approach would render insufficiency claims "un- reviewable" in any case in which a defendant testi- fied on his own behalf, Judge Moye argued, because an appellate court is inherently incapable of evaluating such demeanor evidence. Id. at A4-A5. Judge Moye also argued (id. at A8-A9) that the court of appeals should have applied to petitioner's case the version of ---------------------------------------- Page Break ---------------------------------------- 9 Rule 29(b) effective December 1, 1994. Applying that Rule would require reversal of petitioner's convic- tion, in Judge Moye's view, because the government's evidence standing alone had not been sufficient to establish petitioner's guilt on the money laundering count. Id. at A8. ARGUMENT 1. Petitioner argues (Pet. 4-7) that the court of appeals erred in holding that a defendant's testimony denying guilt may, in certain circumstances, be con- sidered by a reviewing court in determining whether the evidence of guilt was sufficient. While there is some disagreement among the courts of appeals as to the circumstances under which such testimony may be taken into account in determining sufficiency, the court of appeals' decision in this case was correct under any approach to that question. This case there- fore does not present a suitable vehicle for resolving that conflict. Moreover, a recent amendment to Fed- eral Rule of Criminal Procedure 29(b) has largely obviated that question, by enabling defendants in many cases to preserve the right to claim on appeal that the evidence presented by the government, standing alone, was insufficient. a. To support a conviction for violating the money laundering statute, 18 U.S.C. 1956(a)(1)(B)(i), the evidence must establish that the defendant engaged in a financial transaction involving the proceeds of unlawful activity, that the defendant knew that the property represented the proceeds of a specified unlawful activity, and that the defendant knew that the transaction was designed, in whole or in part, "to conceal or disguise the nature, the location, the source, the ownership, or the control of the ---------------------------------------- Page Break ---------------------------------------- 10 proceeds of specified unlawful activity." 18 U.S.C. 1956(a)(l)(B)(i); see United States v. Brown, 31 F.3d 484,488 n.2 (7th Cir. 1994); United States v. Flynt, 15 F.3d 1002, 1007 (11th Cir. 1994); United States v. Garcia-Emanuel, 14 F.3d 1469,1473 (10th Cir. 1994). The concealment element of the statute is met when a transaction is designed "to conceal or disguise in any manner" the relevant features of the proceeds of un- lawful activity. United States v. Lovett, 964 F.2d 1029, 1034 n.3 (10th Cir.), cert. denied, 113 S. Ct. 169 (1992). Although the panel majority based its holding that the evidence was-sufficient on all the evidence at trial, the panel's explanation of why the evidence intro- duced in the government's case-in-chief was, by itself, "possibly enough" to support petitioner's money laun- dering conviction demonstrated the sufficiency of that evidence. That evidence showed that petitioner had assisted Collins to conceal the proceeds obtained from the distribution of marijuana, by helping Collins to use that money to purchase the 292 Club. In partic- ular, petitioner, having been given $2,000 in proceeds of marijuana sales by Collins, used those funds to buy a $2,000 cashier's check or money order-not under Collins' name, but under the name of a third party, defendant Calhoun. That instrument (and the $2,000 cashier's check or money order similarly obtained by Brown) were then used to help finance Collins' pur- chase of the 292 Club. As the panel majority recognized, the jury could infer from the fact that petitioner had "showed Calhoun as the remitter of the check" that petitioner "knew the purchase of the 292 Club was intended to hide Collins' drug proceeds." Pet. App. A2. That inference was supported by the direct testimony of Collins that petitioner was aware that the $2,000 that ---------------------------------------- Page Break ---------------------------------------- 11 he was told to convert into a cashier's check were the proceeds of marijuana sales. It was also supported by petitioner's awareness-as a `member of Collins' organization-that Collins was in the business of transporting and distributing marijuana. The infer- ence that petitioner knowingly assisted Collins to hide his drug proceeds was also supported by the fact that petitioner had knowingly assisted Collins to conceal the unlawful nature of his activities on an- other occasion: when petitioner helped Collins to obtain the permission of his parole officer to travel by falsely stating that Collins would be traveling in connection with legitimate business. See Gov't C.A. Br. 8-11; Gov't C.A. Supp. Br. 9-11; see also United States v. Jackson, 983 F.2d 757, 766 (7th Cir. 1993) (circumstantial evidence alone is sufficient to support a money laundering conviction); United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990) (same); cf. United States v. Isabel, 945 F.2d 1193, 1203-1204 (1st Cir. 1991). Thus, taking into account solely the evidence offered in the government's case-in-chief, the evidence was sufficient to support petitioner's money laundering conviction. b. The court of appeals held (Pet. App. A2-A3) that it was not necessary to reach the issue whether the evidence offered during the government's case-in- chief was alone sufficient because the jury was entitled to disbelieve petitioner's testimony- denying any knowledge of or participation in illegal activity, "and, in fact, to believe the opposite of what [peti- tioner] said." It is well established that, in addition to considering affirmative evidence of guilt, a jury may draw negative inferences from a defendant's testi- mony and consider those inferences in reaching a verdict. See United States v. Friedman, 998 F.2d 53, ---------------------------------------- Page Break ---------------------------------------- 12 57 (2d Cir. 1993) (jury entitled to draw negative infer- ences from defendant's testimony at trial); United States v. Zafiro, 945 F.2d 881, 888 (7th Cir. 1991) (where defendant takes the stand "and denies the charges and the jury thinks he's a liar, this becomes evidence of guilt to add to the other evidence"), aff`d, 506 U.S. 534 (1993); United States v. Bauer, 19 F.3d 409, 412 n.2 (8th- Cir. 1994) (same); United States v. Kenny, 645 F.2d 1323, 1346 (9th Cir.) ("When the defendant elects to testify, he runs the risk that if disbelieved, the trier of fact may conclude that the opposite of his testimony is the truth."), cert. denied, 452 U.S. 920 & 454 U.S. 828 (1981); United States v. Allison, 908 F.2d 1531,1535 (11th Cir. 1990) (jury may reject defendant's explanation "as a complete fab- rication" and view "[the] defendant's false explan- atory statement as substantive evidence proving guilt"), cert. denied, 500 U.S. 904 (1991). A plurality of this Court recently concluded that, when a jury disbelieves a testifying defendant, it is "further enti- tled to consider whatever it concluded to be perjured testimony as affirmative evidence of guilt." Wright v. West, 505 U.S. 277,296 (1992) (opinion of Thomas, J.).3 The question whether a jury may treat a defen- dant's false testimony as affirmative evidence of guilt is, however, distinct from the question of when an appellate court may consider that false testimony in ___________________(footnotes) 3 Chief Justice Rehnquist and Justice Scalia joined Justice Thomas's plurality opinion. 505 U.S. at 278. None of the six Justices who concurred in the judgment disagreed with Justice Thomas's statement that a defendant's testimony could be considered as affirmative evidence of guilt. See id. at 297-316. In his opinion concurring in the judgment, Justice Souter stat- ed that a similar state evidentiary rule "has the virtue of much common sense." Id. at 315. ---------------------------------------- Page Break ---------------------------------------- 13 evaluating whether the evidence against him was sufficient. On that question, the courts of appeals have reached different conclusions. In Zafiro, supra, the Seventh Circuit stated in dicta that the false testimony of a defendant in denying the charges against her "becomes evidence of guilt to add to the. other evidence" considered in the inquiry into sufficiency. See 945 F.2d at 888. The court acknowl- edged that the District of Columbia Circuit had ex- pressed concern that "if negative inferences, based on demeanor evidence, were adequate in themselves to satisfy a rational juror of guilt beyond a reasonable doubt, appellate courts might not be able to provide meaningful review of the sufficiency of evidence." Ibid. (quoting United States v. Jenkins, 928 F.2d- 1175, 1179 (D.C. Cir. 1991)). The Seventh Circuit dis- counted that concern, however, on the ground that such cases were unlikely to occur because, when there is no evidence of guilt other than an adverse inference from a defendant's disbelieved claim of innocence, the defendant would be entitled to a judg- ment of acquittal at the close of the government's case and would have no need to testify at all. 945 F.2d at 888. Cf. Kenny, 645 F.2d at 1346. As petitioner notes (Pet. 6), the District of Colum- bia Circuit has taken a different approach. It has held that, although the substance of a defendant's testi- mony may be considered in determining the sufficien- cy of the evidence, it is generally improper for an appellate court to assume that the jury may have drawn negative inferences from a testifying defen- dant's demeanor. United States v. Zeigler, 994 F.2d 845, 848-850 (D.C. Cir. 1993); see United States v. Thorne, 997 F.2d 1504, 1511 (D.C. Cir.) (same), cert. denied, 114 S. Ct. 568 (1993); Jenkins, 928 F.2d at 1178- ---------------------------------------- Page Break ---------------------------------------- 14 1179; see also United States v. Sliker, 751 F.2d 477, 495 n.11 (2d Cir. 1984) (reaching same result), cert. denied, 470 U.S. 1058 & 471 U.S. 1137 (1985). The District of Columbia Circuit has reasoned that, if negative inferences based upon the defendant's de- meanor while testifying were to be considered in the sufficiency inquiry, it would undermine the pro- tection that appellate review of the sufficiency of the evidence provides against wrongful convictions. Zeigler, 994 F.2d at 850. The court explained (id. at 849): Because we cannot evaluate demeanor, [con- sideration of-demeanor in evaluating sufficiency claims] would mean that in cases in which de- fendants testify, the evidence invariably would be sufficient to sustain the conviction. We would in each case assume the jury correctly evaluated the evidence. In" explaining how this could be so in light of the defects in the government's proof, we would reason backwards to the only explanation available-the defendant's demeanor. This sort of approach, beginning with the hypothesis that the jury must have gotten things right, contra- dicts the reason why appellate courts review convictions for sufficiency of evidence-that ju- ries sometimes get things wrong. The District of Columbia Circuit has recognized, however, that it is appropriate for an appellate court to consider a defendant's denials of guilt when that "testimony, on its face, [is] utterly inconsistent, in- coherent, contradictory or implausible." Ibid. In such instances, the court has explained, "an appellate court would have some assurance that when the ---------------------------------------- Page Break ---------------------------------------- 15 defendant said `black' the jury reasonably could have concluded that the truth was `white.'" Ibid.4 While the conflicting approaches articulated by the Seventh Circuit and the District of Columbia Circuit may at some later point warrant resolution by this Court, the present case is not a suitable vehicle for resolving that conflict. First, as we have explained, the evidence presented in the government's case-in- chief was itself sufficient to support petitioner's conviction, for the reasons suggested by the panel majority. Resolution of the issue whether the de- meanor of a testifying defendant maybe considered by a reviewing court upon a sufficiency challenge would therefore have no impact upon the resolution of this case. Second, even if the evidence presented in the government's case-in-chief were not itself sufficient, it appears that, even under the approach taken by the District of Columbia Circuit, an appellate court would be entitled to conclude that the jury drew negative inferences from petitioner's denials of guilt. That circuit has held that an appellate court may treat a defendant's denial of guilt as substantive evidence against him when the "defendant's testimony, on its face, [is] utterly inconsistent, incoherent, contra- dictory or implausible." Zeigler, 994 F.2d at 849. That exception applies in this case. As the court of appeals noted, petitioner "testified under oath that he did not know that Gene Collins was in the drug ___________________(footnotes) 4 The First and Tenth Circuits have recently noted the disagreement between Ziegler and Zafiro, but have not found it necessary to decide which view is correct. See Walker v. Waltham Housing Authority, 44 F.3d 1042, 1049-1050 (1st Cir. 1995); Stallings v. Tansy, 28 F.3d 1018, 1024 (10th Cir. 1994). ---------------------------------------- Page Break ---------------------------------------- 16 business. He also testified that he was in no way involved in helping Collins buy the 292 Club." Pet. App. A3. Given that the jury found petitioner guilty of distributing marijuana and cocaine as a member of Collins' organization (Count 1), and given the direct and circumstantial evidence pointing to petitioner as a purchaser of one of the two cashier's checks used in the second downpayment for the 292 Club, see Gov't C.A. Supp. Br. 9-12, it is reasonable to conclude that the jury found petitioner's wholesale denials of any knowledge of or involvement in any of Collins' ille- gal ventures to be wholly incredible. Because peti- tioner's denials were "utterly inconsistent, incoher- ent, contradictory or implausible" in light of his conviction on the distribution count and the other evidence in the case, the court of appeals had a rea- sonable "assurance that when [petitioner] said `black' the jury reasonably could have concluded that the truth was `white.'" Ziegler, 994 F.2d at 849. Thus, the court was correct to conclude that "the jury, hearing [petitioner's] words and seeing his demeanor, was entitled to disbelieve [his] testimony and, in fact, to believe the opposite of what [he] said." Pet. App. A3 (emphasis omitted). Finally, in light of the recent amendment to Federal Rule of Criminal Procedure 29(b), it is un- likely that the issue of when a reviewing court may consider a defendant's testimony denying involvement in an offense as evidence of guilt will occur with any frequency. Before that amendment took effect, a de- fendant who elected to present evidence in a case in which the district court reserved ruling on a motion for a judgment of acquittal at the close of the government's case-in-chief would "run the risk that such evidence will support the government's case." ---------------------------------------- Page Break ---------------------------------------- 17 Fed. R. Crim. P. 29 advisory committee's note (1994 amendment). The recent amendment to Rule 29(b) has relieved the defendant of that risk, by providing that, when a district court has reserved ruling on a motion for a judgment of acquittal, "it must decide the motion on the basis of the evidence at the time the ruling was reserved." Fed. R. Crim. P 29(b). `The advisory committee note to the amended Rule further states that appellate review of such a ruling will be "similarly limited" to the evidence that had been presented at the time the ruling was reserved. Fed. R. Crim. P. 29 advisory committee's note (1994 amendment). As a result, in future cases in which a defendant moves for a judgment of acquittal at the close of the government's case-in-chief and in which the suffi- ciency of evidence presented at that point presents a close question, the district court may simply reserve ruling on such a motion at the close of the govern- ment's case-in-chief. Because such action will pre- serve for appellate review the issue whether the government's evidence alone was sufficient, the issue whether the defendant's denials of guilt could be taken into account in a sufficiency inquiry will not arise. It is true, of course, that that issue may still arise where a district court denies a motion for judg- ment of acquittal made at the close of the govern- ment's case, and where the sufficiency of the gov- ernment's evidence standing alone presents a close question on appeal. Under Rule 29(b) as amended, however, the defendant would have the opportunity in such cases to ask the district judge to reserve ruling on that motion so as to preserve his right on appeal to challenge the sufficiency of the government's evi- dence alone, and, where the government's evidence is ---------------------------------------- Page Break ---------------------------------------- 18 not clearly sufficient by itself, it is reasonable to expect that such requests will often be granted. Thus, the issue raised by the petition appears to be of diminishing importance and does not merit review at this time. 2. Petitioner also claims (Pet. 7-10) that the court of appeals erred in not retroactively applying to his case the amendment to Federal Rule of Criminal Pro- cedure 29(b) that took effect December 1, 1994. The court of appeals, however, was correct in not applying that amendment. First, as the court of appeals noted (Pet. App. A2 n.3), the amendment did not take effect until after petitioner's trial bad been completed, and, indeed, not until after his appeal had been briefed and argued in the court of appeals. The Rule does not provide for retroactive application. The court of appeals was therefore correct to hold (ibid.) that it was "neither just nor practical" to apply that amend- ment retroactively. Cf. Norris v. United States, 190 F.2d 186, 188 (5th Cir. 1951) (Federal Rules of Crim- inal Procedure are not retroactive); 3A Charles Alan Wright, Federal Practice and Procedure 922, at 378 (2d ed. 1982) (rules and amendments not retroactive).5 ___________________(footnotes) 5 Petitioner's reliance (Pet. 8) on Bradley v. School Board of Richmond, 416 U.S. 696 (1974), and Griffith v. Kentucky, 479 U.S. 314 (1987), in support of his claim for retroactive appli- cation of the amendment to Rule 29(b) is misplaced. The Court stated in Bradley that "a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." 416 U.S. at 711. The order that transmitted the 1994 amendments to the Federal Rules of Criminal Procedure provided such direction, by specifying that the amendments were to be applied in pending cases only "insofar as just and practicable." Supreme Court Order, Apr. 29, 1994 (Rehnquist, C.J.); see also Pet. App. A3 n.3 (applying ---------------------------------------- Page Break ---------------------------------------- 19 And it is undisputed that, before the amendment to Rule 29(b), a defendant who put on evidence following the denial of a motion for a judgment of acquittal at the close of the government's case-in-chief would "run the risk that such evidence will support the government's case." Fed. R. Crim. P. 29 advisory_. committee's note (1994 amendment). Second, even if the amended Rule applied, the district court did not. clearly "reserve" decision on petitioner's motion for judgment of acquittal within the meaning of that Rule. Instead, the district court stated (Pet. App. B3) at the time that it was "provisionally" denying the defendants' motions for judgments of acquittal; at the close of the defense cases, the court stated (ibid.) that it would treat those motions as having been renewed, and that it was denying them. In any event, the decision below that the amend- ment to Rule 29(b) does not apply to this case is not in conflict with any other reported decision. Nor does i-t present a question of general importance warranting this Court's review. ___________________(footnotes) "just and practicable standard"). As for the Court's statement in Griffith that "a new rule for the conduct of criminal prose- cutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final," 479 U.S. at 328, the Court was discussing new constitutional rules, not Federal Rules of Procedure. See. id. at 320-328 -(reviewing Court's post-1965 analyses for "claims of retroactivity of new constitutional rules of criminal procedure"). ---------------------------------------- Page Break ---------------------------------------- 20 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General JOHN C. Keeney Acting Assistant Attorney General THOMAS M. GANNON Attorney JANUARY 1996