LUIS RODRIGUEZ AND RAUL REYES, PETITIONERS V. UNITED STATES OF
AMERICA

   No. 87-2114

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-12a) is
unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 22,
1988.  A petition for rehearing was denied on April 29, 1988.  The
petition for a writ of certiorari was filed on June 27, 1988.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether a violation of the Jencks Act, 18 U.S.C. 3500, is
subject to the harmless error standard on appeal.

   2. Whether petitioners are entitled to a new trial based on
government misconduct.

                               STATEMENT

   Following a jury trial in the United States District Court for the
District of Nevada, petitioners were convicted of conspiracy to
distribute cocaine and to possess cocaine with the intent to
distribute it, in violation of 21 U.S.C. 846.  Petitioner Rodriguez
was sentenced to 15 years' imprisonment, and petitioner Reyes was
sentenced to 10 years' imprisonment.  The court of appeals affirmed
(Pet. App. 1a-12a).

   1. The evidence at trial showed that petitioners were members of a
narcotics conspiracy that imported approximately 89 kilograms of
cocaine into the United States from Bolivia.  Petitioner Reyes
furnished vehicles that were used to pick up the cocaine and provided
counter-surveillance during the transfer of the narcotics.  Petitioner
Rodriguez assisted in providing counter-surveillance and also supplied
money for plane and pilot expenses incurred in delivering the cocaine.
 Pet. App. 1a-2a, 9a-10a.

   2. Following their conviction, petitioners moved for a new trial,
contending that the government had violated the Jencks Act, 18 U.S.C.
3500, and this Court's decision in Brady v. Maryland, 373 U.S. 83
(1983).  In particular, petitioners claimed that the government had
failed to disclose a transcript of the grand jury testimony of Eugene
Bustos, a government agent who had testified at trial.  The district
court denied the motion.  Although it recognized that the grand jury
testimony at issue involved a "separate and distinct" offense and that
the failure to produce it was "inadvertent and not in bad faith," the
court agreed that the government had violated the Jencks Act.
12/11/85 Tr. 4.  The court concluded, however, that the violation was
harmless.  It explained that the failure to produce the transcript did
not "deter() counsel for the defense from a thorough cross examination
of Agent Bustos" (ibid.).  Moreover, the court found, "the transcript
at issue is essentially duplicative of information disclosed by the
government to the defendants prior to trial and the testimony of Agent
Bustos during the trial" (id. at 4-5).  The court also rejected
petitioners' Brady claim, finding that there was "not a reasonable
probability that had the transcript of Agent Bustos' testimony been
disclosed to the defense in a timely manner, the result of the trial
would have been different" (id. at 6).  The court explained that Agent
Bustos was only one of several witnesses who had testified at trial to
the same matters described in the grand jury testimony;  that the
testimony in question was not central to the charge on which
petitioners had been convicted;  and that the grand jury testimony was
merely "a general summary of the events" and not "a detailed account
of what occurred" (id. at 6-7).  "Finally, and most importantly," the
court added, there were no "discrepancies of signific(a)nce between
the testimony of Agent Bustos at trial and his summary testimony
before the grand jury which would have been particularly helpful to
the defense in its efforts * * * to impeach Agent Bustos" (id. at 7).

   3. The court of appeals affirmed in an unpublished opinion (Pet.
App. 1a-12a).  It upheld the finding of the district court that "the
agent's testimony was in fact substantially consistent in both
proceedings" and that a minor discrepancy in the testimony "could not
reasonably have affected the jury's assessment of the witnesses'
credibility or the outcome of the trial" (id. at 7a).  The court of
appeals also rejected petitioners' claim of prosecutorial misconduct.
It concluded that petitioners had failed to "provide a sufficient
record on which to review the prosecutor's conduct" and that, in any
event, "(t)heir allegations (did) not rise to the level of misconduct
requiring reversal" (id. at 11a).

                               ARGUMENT

   1. Petitioners contend (Pet. 14-15) that the court of appeals erred
in rejecting their Jencks Act claim, stating that "'(t)here are no
exceptions to the Jencks rule * * *'" (Pet. 14 (citations and emphasis
omitted)).  The court of appeals did not hold otherwise.  It merely
concluded that on the record at trial the government's violation of
the Jencks Act was harmless.  This Court has made clear that a Jencks
Act violation is subject to a harmless error standard on appeal.  See
Goldberg v. United States, 425 U.S. 94, 111 n.21 (1976);  Rosenberg v.
United States, 360 U.S. 367, 371 (1959).  Petitioners offer no reason
to disturb the court of appeals' fact-bound determination that the
failure to produce the transcript of Agent Bustos' grand jury
testimony "could not reasonably have affected the jury's assessment of
the witnesses' credibility or the outcome of the trial" (Pet. App.
7a).

   2. Petitioners also provide (Pet. 14-19) a lengthy list of alleged
abuses by the government that, in their view, constitute sufficient
misconduct to warrant a new trial.  The court of appeals correctly
rejected that claim, for two reasons.

   First, as the court explained (Pet. App. 11a), petitioners failed
to provide record references for any of the asserted acts of
misconduct.  Rules 28(a)(3) and (4) of the Rules of Appellate
Procedure require that the statement of the case and argument in an
appellant's brief make appropriate references to the record.  A court
of appeals is "not required to search the record for error" (Holt v.
Sarver, 442 F.2d 304, 307 (8th Cir. 1971)) and may refuse to entertain
an argument that lacks the required record citations (see McGoldrick
Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 653 (5th Cir.
1986);  Lemelson v. United States, 752 F.2d 1538, 1553 (Fed. Cir.
1985);  United States v. Gleason, 726 F.2d 385, 388 (8th Cir. 1984);
Rebuck v. Vogel, 713 F.2d 484, 487 (8th Cir. 1983)).  In the present
case, petitioners filed an opening brief in the court of appeals that
lacked any record citations in the statement of facts or in that
portion of the argument that catalogued the alleged acts of government
misconduct.  Indeed, petitioners have repeated that mistake in their
petition, making it difficult to determine precisely how the alleged
abuses occurred.  The court of appeals would have been amply justified
in rejecting petitioners' claims for that reason alone.

   Second, and in any event, the court of appeals considered
petitioners' scattershot list of purported misconduct, and it
concluded that the "allegations do not rise to the level of misconduct
requiring reversal." Pet. App. 11a.  That fact-bound determination
warrants no further review.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Acting Assistant Attorney General

   GEOFFREY R. BRIGHAM

      Attorney

   SEPTEMBER 1988