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\par No. 94-1981
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par ROLAND C. BRASWELL, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE FOURTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JO ANN HARRIS
\par Assistant Attorney General
\par 
\par DANIEL S. GOODMAN
\par Attorney
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par      QUESTION PRESENTED
\par 
\par Whether the prosecutor's improper comment before
\par the grand jury required petitioner's acquittal of the
\par perjury charges against him.
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Opinion below  . . . .1 
\par Jurisdiction  . . . . 1
\par Statement  . . . . 2
\par Argument  . . . . 5
\par Conclusion  . . . . 9
\par 
\par      TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Bank of Nova Scotia v. United States, 487 U.S. 250
\par (1988) . . . .4, 5, 6, 7, 9
\par United States v. Burns, 990 F.2d 1426 (4th Cir.),
\par  cert. denied, 113 S. Ct. 2949 (1993)  . . . .8 
\par United States v. , 461 U. S. 499 (1983)  . . . .8, 9 
\par United States v. Mechanik, 475 U. S. 66 (1986)  . . . . 4, 6
\par United States v. Mills, 995 F.2d 480 (4th Cir.),
\par I cert. denied, 114 S. Ct. 283 (1993)  . . . . 8
\par United States v. Payner, 447 U. S. 727(1980)  . . . 9. 
\par United States v. Williams, 504 U.S.36 (1992 )  . . . .8 
\par Statutes and rule:
\par 18 U.S.C. 371  . . . . 2
\par 18 U.S.C. 1623  . . . . 2
\par 26 U.S.C. 7203  . . . . 2
\par  Fed. R. Crim. P. 52(a)  . . . .5 
\par 
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par     No. 94-1981
\par 
\par ROLAND C. BRASWELL, PETITIONER
\par 
\par      v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par     FOR THE FOURTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par OPINION BELOW
\par 
\par The opinion of the court of appeals (Pet. App. 1a-9a)
\par is unpublished, but the judgment is noted at 46 F.3d
\par 1127 (Table).
\par 
\par       JURISDICTION
\par 
\par The judgment of the court of appeals was entered on
\par February 8, 1995. A petition for rehearing was denied
\par on March 7, 1995. Pet. App. 15a-16a. The petition for
\par a writ of certiorari was filed on June 2, 1995. The
\par jurisdiction of this Court is invoked under 28 U.S.C.
\par 1254(1).
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par STATEMENT
\par 
\par After a jury trial in the United States District Court for
\par the Eastern District of North Carolina, petitioner was 
\par convicted on one count of conspiracy to defraud the United
\par States, in violation of 18 U.S.C. 371, and two counts of perjury, 
\par in violation of 18 U.S.C. 1623. Petitioner also pleaded guilty to
\par six counts of willful failure to file a tax return, in violation
\par of 26 U.S.C. 7203. The district court granted petitioner's
\par motion for a judgement of acquittal on the two perjury counts,
\par vacated the judgement of acquittal on the two perjury counts,
\par vacated petitioner's sentence, and remanded for resentencing. 
\par Pet. App. 1a-9a.
\par 1. Petitioner, an attorney, helped his clients conceal their
\par drug-trafficking profits from the Internal Revenue Service
\par by establishing sham corporations and other means. Pet. App.2a. 
\par A federal grand jury returned an indictment charging him with
\par defrauding the United States by impeding the collection of taxes.
\par Id. at 3a. The indictment also charged that he perjured himself before 
\par the grand jury during its investigation of the tax fraud. Ibid.
\par The facts surrounding petitioner's grand jury testimony as 
\par follows. Just before petitioner was to testify, the grand jury requested
\par a five-minute break. Gov't C.A. Br. 15. The prosecutor asked the grand
\par jurors not to discuss the proceedings during their break because 
\par petitioner might be outside the grand jury room with his attorney. 
\par Pet. App. 4a-5a; Gov't C.A. Br. 15. The prosecutor added that peti
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par tioner might perjure himself before the grand jury
\par and that the grand jurors should create a "very
\par friendly atmosphere" to make him feel "at ease." Pet.
\par App. 5a; Gov't C.A. Br. 15.
\par After the grand jury proceedings resumed, peti-
\par tioner testified about  the minute books of a
\par corporation that he had used to launder drug
\par proceeds. Gov't C.A. Br. 14; see also id. at 11-12. `He-
\par repeatedly claimed that he had made entries in the
\par corporate minute books on the dates between 1985 and
\par 1988 specified in the books. Pet. App. 5a; Gov't C.A.
\par Br. 14. Later expert testimony before the grand jury
\par established, however, that the paper on which the
\par entries were written was manufacture-d in 1991 or
\par 1992. Pet. App. 5a; Gov't C.A. Br. 14-15. Four weeks
\par later, after hearing additional testimony, the grand
\par jury returned the instant indictment, which included
\par eight perjury counts based on petitioner's grand jury
\par testimony. Pet. App. 5a; Gov't C.A. Br. 16.
\par 2. At petitioner's trial, two former clients con-
\par victed of drug trafficking testified that he helped
\par them set up shell corporations to launder millions of"
\par dollars of drug-trafficking proceeds. Pet. App. 2a;
\par Gov't C.A. Br. 9-12. Other witnesses testified that he
\par lied to the grand jury about recently fabricated
\par corporate records. Pet. App. 2a-3a.
\par At the end of the government's case, the district
\par court dismissed six of the eight perjury counts
\par against petitioner as duplicative. Pet. App. 3a. The
\par jury convicted him on the two remaining perjury
\par counts and the conspiracy count. Ibid.
\par After the trial, petitioner moved for a judgment of
\par acquittal based on the prosecutor's comments to the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par grand jury. Pet. App. 3a. 1 The district court granted
\par the motion with respect to the two perjury con-
\par victions, but denied it with respect to the conspiracy
\par conviction. Id. at 10a-14a. The court determined that
\par the prosecutor's comment to the grand jury that
\par petitioner might perjure himself was "unnecessary
\par and prejudicial." Id. at 14a. It also found that the
\par prosecutor's suggestion that the grand jurors make
\par petitioner feel at ease invited them "to become
\par involved in the prosecution's activities," instead of
\par remaining neutral. Ibid. The court did not overturn
\par petitioner's conspiracy conviction, however, because
\par that conviction was supported by "ample evidence."
\par Ibid. 3. The court of appeals affirmed the conspiracy
\par conviction and reversed the judgment of acquittal on
\par the perjury counts. Pet. App. 1a-9a.2 It observed that,
\par under United States v. Mechanik, 475 U.S. 66 (1986),
\par and Bank of Nova Scotia v. United States, 487 U.S.
\par 250 (1988], "[a]bsent a structural defect, * * * a de-
\par fendant who seeks to have a conviction vacated or an
\par indictment dismissed because of misconduct before
\par the grand jury must establish] that the violation
\par substantially influenced the grand jury's decision to
\par indict or [that] there is grave doubt that the decision
\par to indict was free from the substantial influence of
\par such violations." Pet. App. 7a (internal quotation
\par marks omitted). The court held that this case did not
\par 
\par 1 The prosecutor's statements to the grand jury were given
\par to petitioner at trial under the Jencks Act (Pet. App. 13a) but
\par were not presented to the petit jury (Gov't C.A. Br. 16).
\par 2 In a ruling that is not at issue here, the court of appeals
\par also vacated petitioner's sentence on the conspiracy count and
\par remanded for resentencing. Pet. App. 9a.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par involve a structural defect, and that "the record does
\par not show that [the prosecutor's] conduct substan-
\par tially influenced the decision of the grand jury or
\par placed such influence in grave doubt." Ibid.
\par       
\par  ARGUMENT
\par 
\par 1. Petitioner contends that the prosecutor's mis-
\par conduct before the grand jury was so egregious that
\par it "allows a presumption that [he] was prejudiced."
\par Pet. 11. Thus, according to petitioner, the court of
\par appeals erred both by inquiring whether the mis-
\par conduct caused actual prejudice and in holding that it
\par did not. Pet. 14. The court of appeals was correct on
\par both scores, however, and its decision does not con-
\par flict with any decision of this Court or another court
\par of appeals.
\par In Bank of Nova Scotia v. United States, 487 U.S.
\par 250 (1988), this Court "h[e]ld that, as a general
\par matter, a district court may not dismiss an indict-
\par ment for errors in grand jury proceedings unless
\par such errors prejudiced the de fondants." ld. at 254.
\par The Court based that holding on Federal Rule of
\par Criminal Procedure 52(a), which provides that "[a]ny
\par error, defect, irregularity or variance which does not
\par affect substantial rights shall be disregarded." Bank
\par of Nova Scotia, 487 U.S. at 255 (quoting Rule 52(a)).
\par The Court also held that, with "isolated exceptions,"
\par prejudice is to be determined on a case-by-ease basis.
\par 487 U.S. at 256. The exception is for cases "in which
\par the structural protections of the grand jury have been
\par so compromised as to render the proceedings fun-
\par damentally unfair, allowing the presumption of
\par prejudice." Id. at 257. The Court cited, as examples
\par of presumptively prejudicial errors, racial and gender
\par discrimination in the selection of grand jurors. Ibid.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par The court of appeals correctly held that this ease
\par does not involve a presumptively prejudicial error in
\par the grand jury proceedings. Pet. App. 7a. Contrary
\par to petitioner's claim (Pet. 10-11), the prosecutor's
\par conduct did not compromise "the structural pro-
\par tections of the grand jury" (Bank of Nova Scotia, 487
\par U.S. at 257). Indeed, the single episode of alleged mis-
\par conduct involved in. this case was far more mild than
\par the pattern of prosecutorial conduct involved in Bank
\par of Nova Scotia, which the Court held did not cause a
\par presumptively prejudicial structural defect in the
\par grand jury proceeding. See id. at 257,260. Petitioner
\par argues that, whereas the prosecutorial misconduct in
\par Bank of Nova Scotia "concern[ed] matters of evi-
\par dence presented to a grand jury," "the misconduct [in
\par this case] goes beyond the evidence, and involves the
\par grand jury itself in the misconduct." Pet. 14. That
\par purported distinction is unsound, however, because
\par petitioner did not show, and the courts below did not
\par find, any misconduct on the part of the grand jurors.
\par Instead, this case differs from Bank of Nova Scotia
\par primarily in that the latter case involved numerous
\par and varied instances of prosecutorial misconduct,
\par whereas the present case involves only a single
\par instance. Under Bank of Nova Scotia, that isolated
\par incident was not presumptively prejudicial.
\par The court of appeals was also correct in holding
\par that petitioner did not show that the prosecutor's
\par misconduct caused actual prejudice. The jury verdict
\par against petitioner on the perjury charges "mean[t]
\par not only that there was probable cause to believe that
\par [he was] guilty as charged, but also that [he was] in
\par fact guilty as charged beyond a reasonable doubt."
\par United States v. Mechanik, 475 U.S. 66, 70 (1986).
\par Petitioner does not dispute that there was ample
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par evidence at trial to support that verdict. Nor does he
\par even dispute that the evidence before the grand jury
\par established probable cause for the perjury charges.
\par Thus, as the court of appeals concluded, petitioner did
\par not "make the required showing" under Bank of
\par Nova Scotia-i.e., that the prosecutor's comments
\par "substantially influenced the decision of the grand
\par jury [to indict petitioner for perjury] or placed such
\par influence in grave doubt." Pet. App. 7a; see Bank of
\par Nova Scotia, 487 U.S. at 256.
\par Petitioner errs in contending that the standard
\par adopted in Bank of Nova Scotia, 487 U.S. at 256, for
\par determining actual prejudice was inappropriate here.
\par Pet. 22-23." The Court in Bank of Nova Scotia de-
\par scribed its standard as appropriate "at least where
\par dismissal is sought for nonconstitutional error." 487
\par U.S. at 256. The Court did not suggest, however,
\par that a different standard was appropriate for con-
\par stitutional errors. In any event, the prosecutorial
\par conduct at issue here was no more of constitutional
\par dimension than was the prosecutorial conduct at
\par issue in Bank of Nova Scotia. The court of appeals
\par therefore properly applied the Bank of Nova Scotia
\par standard, and, as petitioner concedes (Pet. 11), its
\par decision to do so does not conflict with any other
\par court of appeals decision.
\par 2. Petitioner also contends that, even if the
\par Constitution did not compel his acquittal on the per-
\par jury counts, that result was a proper exercise of the
\par court's supervisory authority. Pet. 15-25. That con-
\par tention does not warrant further review.
\par Petitioner asserts (Pet. 19) that this Court needs
\par "to establish * * * with greater precision" the
\par limits of the courts' supervisory authority over
\par prosecutorial conduct before grand juries. Petitioner
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par does not contend that there is disagreement
\par regarding those limits among the lower courts.
\par Instead, he claims that review by this Court is
\par necessary to correct "the body of decisions re-
\par pudiating the power of the courts to maintain any
\par control over the prosecutor's conduct before the
\par grand jury." Pet. 21. Neither of the decisions he
\par cites (Pet. 21-22) constitutes such a repudiation,
\par however; each merely held that the use of supervisory
\par authority was not warranted under the circum-
\par stances of that case. See United States v. Mills, 995
\par F.2d 480, 487-490 (4th Cir.) (rejecting defendant's
\par claim that indictment should be dismissed because
\par there was no evidence before the grand jury to
\par support charges against him), cert. denied, 114 S. Ct.
\par 283 (1993); United States v. Burns, 990 F.2d 1426, 1436
\par (4th Cir.) (refusing to dismiss charge in indictment
\par that court determined was independent of other
\par charges that government had agreed not to bring),
\par cert. denied, 113 S. Ct. 2949 (1993).
\par Moreover, as the court of appeals observed, the
\par relevant principles are "clear."  Pet. App. 6a. In
\par United States v. Williams, 504 U.S. 36 (1992), the
\par Court made clear that courts generally may not
\par rise their supervisory authority "as a means of
\par prescribing * * * standards of prosecutorial con-
\par duct in the first, instance," id. at 47; instead, they
\par generally may use that authority only for violations
\par of preexisting legal standards of conduct, such as
\par those prescribed by statute or the Federal Rules of
\par Criminal Procedure, id. at 46-47; see also United
\par States v. Hasting, 461 U.S. 499, 505 (1983). Moreover,
\par Bank of Nova Scotia made clear that courts may
\par use their supervisory authority to dismiss criminal
\par charges based on prosecutorial misconduct before the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par  9
\par 
\par . grand jury only when the misconduct is prejudicial.
\par See 487 U.S. at 254; see also Hasting, 461 U.S. at 506;
\par United States v. Payner, 447 U.S. 727,736 n.8 (1980).
\par At bottom, petitioner's argument concerns, not the
\par governing legal principles, but the court of appeals'
\par application of those principles to this case.  Thus,
\par petitioner claims that this case "arguably meets"
\par (Pet. 23) the criteria identified in Bank of Nova
\par Scotia for an exercise of the court's supervisory
\par authority, because, as a result of the prosecutor's
\par asserted misconduct, the indictment was "not re-
\par turned by a fair and impartial grand jury" (Pet. 19).
\par The court of appeals disagreed, holding that the
\par prosecutor's conduct did not substantially influence
\par the grand jury's decision to indict. Pet. App. 7a. That
\par factbound disagreement poses no issue worthy of this
\par Court's review.
\par 
\par        CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par denied.
\par 
\par Respectfully submitted.
\par 
\par            
\par \tab DREW S. DAYS, III
\par             Solicitor General
\par            
\par \tab JO ANN HARRIS
\par            Assistant Attorney General
\par            
\par \tab DANIEL S. GOODMAN
\par            Attorney
\par 
\par \tab AUGUST 1995
\par 
\par 
\par }