No. 96-1279 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 GEORGE G. ROGERS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General JONATHAN E. NUECHTERLEIN Assistant to the Solicitor General LOUIS M. FISCHER Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether a district court's failure to instruct the jury on an element of an offense is harmless error where, at trial, the defendant admitted that element. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinion below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Discussion . . . . 5 Conclusion . . . . 7 TABLE OF AUTHORITIES Cases: Carella v. United States, 491 U.S .263 (1989) . . . . 5, 6 Chapman v. California, 386 U.S. 18 (1967) . . . . 6 Connecticut v. Johnson, 460 U.S 73 (1983) . . . . 5-6 Staples v. United States, 511 U.S. 600(1994) . . . . 4, 5 Statutes and rules: 18 U.S.C. 922(o) . . . . 2, 4 18 U.S.C. 5845 . . . . 3 18 U.S.C. 5845(a) . . . . 2 26 U.S.C 5861 . . . . 2 26 U.S.C .5861(d) . . . . 2, 3, 4, 5 26 U.S.C. 5861(i) . . . . 2,4, 5 Fed. R. Crim. P.52(b) . . . . 6 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1279 GEORGE G. ROGERS, 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 OPINION BELOW The opinion of the court of appeals (Pet. App. la- 17a) is reported at 94 F.3d 1519. JURISDICTION The judgment of the court of appeals was entered on September 17, 1996. A petition for rehearing was denied on January 6, 1997 (Pet. App. 18a-19a). The pe- tition for a writ of certiorari was filed on February 12, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT After a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted on one count of knowingly possessing a (1) ---------------------------------------- Page Break ---------------------------------------- 2 machinegun, in violation of 18 U.S.C. 922(o); one count of knowingly possessing a silencer not registered in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. 5861(d); and one count of knowingly possessing a silencer that lacked a serial number, in violation of 26 U.S.C. 5861(i), He was sentenced to 33 months' imprisonment, to be fol- lowed by three years' supervised release. The court of appeals reversed petitioner's conviction for pos- sessing a machinegun. The court affirmed peti- tioner's other convictions. Pet. App. la-17a. 1. On March 15, 1991, petitioner was arrested for drunk driving. Gov't C.A. Br. 2-3. The arresting offi- cer searched petitioner's truck and discovered several firearms, including a MAC-11 pistol, a silencer, a flash suppressor, and ammunition. Later investiga- tion showed that the MAC-11 had been modified to function as a machinegun, and that the silencer did not have a serial number and had not been registered in the National Firearms Registration and Transfer Record. Pet. App. 2a-3a. Petitioner denied that he owned the MAC-11 or the silencer, but he did identify the two items with confidence and precision. Id. at 3a- 5a & n.2. 2. Under 26 U.S.C. 5861, it is illegal to possess unregistered or unserialized items that, like silenc- ers, fall within the definition of "firearm" contained in 26 U.S.C. 5845(a). At trial, the district court in- structed the jury that, to convict petitioner under Section 5861, it had to find, among other things, that he "knowingly possessed a `firearm,' as defined [in Section 5845]." Gov't C.A. Br. 8. The court did not clearly instruct the jury that, to convict, it had to find that petitioner specifically knew that the item in his possession was a silencer or that it had the ---------------------------------------- Page Break ---------------------------------------- 3 characteristics that subject it to regulation under Section 5845. 1 Petitioner objected the the instruc- ___________________(footnotes) 1 With respect to the count charging petitioner with possessing an unregistered "firearm: in violation of 26 U.S.C. 5861(d), the court instructed: Count II: Title 26, U.S. Code, Section 5861(d), makes it a Federal crime or offense for anyone to possess certain kinds of firearms which are not registered to them in the National Firearms Registration and Transfer Record. Title 26, U.S. Code, Section 5845, defines "firearm" as including a silencer. The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt First: That the Defendant knowingly possessed a "firearm" as defined above; Second: That the "firearm" was not then registered to the Defendant in the National Firearms Registration and Transfer Record. It is not necessary for the Government to prove the Defendant knew that the item described in the indict- ment was a "firearm" which the law requires to be reg- istered. Let me just stop here right now and look up, folks. That doesn't mean the ordinary pistol, shotgun, rifle that anybody can buy. It's just the certain ones that- It's confusing because we use the term "firearm" for that same thing that's so very lawful. It's just these certain things that are defined that have to be reg- istered in the National Firearms Registration and Transfer Record. What must be proved beyond a reasonable doubt is that the Defendant knowingly possessed the item as charged, that such item was a "firearm" as defined ---------------------------------------- Page Break ---------------------------------------- 4 tions should have required the government to prove that he specifically "knew th[e] items in question were firearms' under the National Firearms Act." Pet. App. 6a. 3. In Staples v. United States, 511 U.S. 600 (1994), this Court held that, to obtain a conviction under Section 5861(d), the government must prove that the defendant "knew of the features of his [firearm] that brought it within the scope of the Ad.." 511 U.S. at 619. On appeal, petitioner relied on Staples to argue that his convictions on all three counts were invalid. The government conceded that Staples required reversal of petitioner's conviction for possession of a machinegun under Section 922(o), because the evidence at trial had not proven that petitioner knew that the MAC-11 had been modified to act as a fully automatic weapon. The court of appeals agreed and reversed petitioner's conviction on that count. Pet. App. 7a-8a. Petitioner also argued that Staples required rever- sal on the other two counts because the court had not instructed the jury that, to convict on those counts, it had to find that petitioner had known that the silencer in his possession was, in fact, a silencer. The court of appeals agreed with petitioner that the district court's instruction on that point was erroneous under ___________________(footnotes) above, and that is was not then registered to the Defendant in the National Firearms Registration and Transfer Record. Gov't C.A. Br. 8. The court issued a similar instruction with respect to the count charging petitioner with possessing a "firearm" without a serial number, in violation of 26 U.S.C. 5861(i). Gov't C.A. Br. at 8-9. ---------------------------------------- Page Break ---------------------------------------- 5 Staples. Pet. App. 8a. 2 The court held, however, that the error was harmless because the instructional "omission" at issue "related to an element of the crime that the defendant * * * admitted." Pet. App. 14a (citing Carella v. United States, 491 U.S. 263,270- 271 (1989) (Scalia, J., concurring)); see id. at 16a. The court noted that, at trial, petitioner "emphatically and without reservation admitted that he knew the item found in his truck was a silencer: a concession reaffirmed by his "attorney during closing argu- ment." Id. at 16a; see also id. at 16a n.14. As a result, the court held that the guilty verdict was unattribu- table to the instructional error and was, therefore, harmless beyond a reasonable doubt. Id. at 17a. DISCUSSION Petitioner contends (Pet. 10-25) that the court of appeals' application of harmless-error analysis to the instructional error in this case was wrong and incon- sistent with decisions of other courts of appeals. There is apparent disagreement among the courts of appeals on the availability of harmless-error review when an instructional error removes an element of an offense from a jury's consideration. Nonetheless, petitioner cites no conflict-and we are aware of none-on the narrow issue decided by the court of appeals in this case whether an instructional error may be found harmless in the "rare situation[]," pre- sented here, in which the error related to "an element of the crime that the defendant * * * admitted." Carella v. United States, 491 U.S. 263,270-271 (1989) (Scalia, J., concurring) (citing Connecticut v. John- ___________________(footnotes) 2 Noting that Staples dealt only with Section 5861(d), the court of appeals assumed, without deciding the issue, that the same analysis would apply to Section 5861(i). ---------------------------------------- Page Break ---------------------------------------- 6 son, 460 U.S. 73, 87 (1983) (plurality opinion)). The court of appeals' judgment rests on its conclusion that, in view of petitioner's "unequivocal assertions" (Pet. App. 16a) of knowledge that he possessed a si- lencer, the instructional error "did not contribute to the verdict obtained." Ibid. (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). That conclusion was correct, and petitioner's discussion of purported conflicts on other harmless-error points is not prop- erly presented here. This Court may nevertheless wish to hold the petition pending its decision in Johnson v. United States, No. 96-203 (argued Feb. 25, 1997), which also involves an issue concerning the availability of appel- late relief when an instruction erroneously withholds an element from the jury's consideration. As peti- tioner correctly observes (Pet. 16 n.7), our contention in Johnson is that the forfeited instructional error at issue there is properly addressed under the plain- error standard of Rule 52(b) rather than under the harmless-error standard applicable here. Nonethe- less, the petitioner in Johnson argues that, on the facts of that case, her failure to object did not subject her to the more rigorous plain-error standard and that, in any event, an instructional omission always requires reversal under either harmless- or plain- error review. See, e.g., Brief for Petitioner at 31 in Johnson, supra ("an error such as that presented in this case is not amenable to analysis under Rule 52(a) or (b)"). This Court's resolution of Johnson could, therefore, bear on the proper disposition of this case. ---------------------------------------- Page Break ---------------------------------------- 7 CONCLUSION The petition for a writ of certiorari should be held pending this Court's decision in Johnson v. United States, No. 96-203, and then disposed of accordingly. Respectfully submitted. APRIL 1997 WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LOUIS M. FISCHER Attorney