No. 96-8011 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 ALEX NICOLETTI, 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 WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS E. BOOTH Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the evidence was sufficient to convict petitioner of using and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. 924(c). 2. Whether the court of appeals abused its discretion in not considering petitioner's claim that his Section 924(c) conviction was invalid under Bailey v. United States, 116 S. Ct. 501 (1995), where petitioner first presented his claim in a petition for rehearing. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8011 ALEX NICOLETTI, 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. 2-5) is unreported, but the judgment is noted at 92 F.3d 1199 (Table). JURISDICTION The judgment of the court of appeals was entered on July 10, 1996. A petition for rehearing was denied on August 20, 1996. The petition for a writ of certiorari was filed on November 11, 1996. 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 Florida, petitioner was convicted of possession of marijuana with intent to distribute it, in violation ---------------------------------------- Page Break ---------------------------------------- 2 of 21 U.S.C. 841(a) (l); conspiracy to commit that offense, in violation of 21 U.S.C. 846; and using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c). He was sentenced to 120 months' imprisonment on the drug convictions and a mandatory 60 months' consecutive sentence on the firearm conviction. The court of appeals affirmed his convictions, but vacated his sentences on the drug counts because of a change to the sentencing guidelines that affected his sentence on those counts. Pet. App. 2-5. 1. In 1988, petitioner purchased approximately 96 acres of heavily wooded property in Highlands County, Florida. In October 1989, three hunters entering the property encountered Robert Vale in the woods. Vale, who was carrying a shotgun, ordered them to leave the property. Thereafter, law enforcement agents surveilled the property by helicopter and observed marijuana plants on the ground. During the flight, a telephone call was made from petitioner's mobile home on the property to petitioner's address in West Palm Beach. Gov't. C.A. Br. 3-7. The agents obtained a search warrant to search the property. The agents found marijuana growing on the property and saw Vale's car near an outbuilding. The agents seized numerous firearms (including a shotgun that was similar to the one that Vale carried when he confronted the hunters) , marijuana, and drug paraphernalia from the mobile home. Afterwards, petitioner transferred the property to its original owner and did not pay his utilities bills after October 1989. Gov't. C.A. Br. at 7-12. ---------------------------------------- Page Break ---------------------------------------- 3 2. The indictment alleged that petitioner and Vale used and carried a shotgun from October 22 to October 26, 1989. Gov't. C.A. Br. at 29. The jury was charged that "'use of a firearm' means that the firearm must have played a purpose or function in carrying out the drug trafficking offense. To show use, the government does not have to prove that the firearm was fired, brandished, or even displayed during the drug trafficking offense." Tr. 263. 3. On appeal, petitioner argued that his conviction on the Section 924(c) count was infirm because the evidence was factually insufficient to sustain it and because the statute exceeded Congress' Commerce Clause authority. Thereafter, this Court held in Bailey v. United States, 116 S. Ct. 501 (1995), that "use" of a firearm under Section 924(c) requires "active employment" of the firearm; "passive" conduct such as mere possession of the firearm is insufficient. In an unpublished opinion, the court of appeals affirmed the convictions, but vacated petitioner's drug conviction sentences. The court did not specifically address petitioner's challenge to the sufficiency of the evidence on the Section 924(c) count, although it did note that he was convicted on an aiding and abetting theory. Pet. App. 2. The court also rejected petitioner's claim that Section 924(c) exceeded Congress' Commerce Clause authority. Pet. app. 2-3. The court rejected petitioner's challenge to the sufficiency of the evidence on the drug counts. Pet . App. 2. The court vacated petitioner's drug sentences on ---------------------------------------- Page Break ---------------------------------------- 4 those counts, however, because of a change to the sentencing guidelines that affected his sentences. Pet. App. 3-4. ARGUMENT 1. Petitioner contends (Pet. 7-13) that the evidence is insufficient to support his Section 924(c) conviction. That fact- bound claim does not warrant further review. 18 U.S.C. 924(c) makes it unlawful for any person to use or carry a firearm during and in relation to a drug trafficking offense. The aiding and abetting statute, 18 U.S.C. 2, applies to Section 924(c). See United States v. Price, 76 F.3d 526, 529 (3d Cir. 1996) (collecting cases). To be liable as an aider and abettor, the defendant must associate himself with the venture, participate in it as something that he wishes to bring about, and seek by his action to make it succeed. Nye & Nissen v. United States, 336 U.S. 613, 619 (1949). To aid and abet a violation of Section 924(c), the government must show that a principal violated Section 924(c) and: (1) that the defendant knew that the firearm would be used or carried by the principal during and in relation to a drug trafficking offense, see e.g. United States v. Giraldo, 80 F.3d 667, 676 (2d Cir.), cert. denied, 117 S. Ct. 135 (1996); United States v. Thomas, 987 F.2d 697, 701-702 (11th Cir. 1993); United States v. Powell, 929 F.2d 724, 726 (D.C. Cir. 1991); and (2) that the defendant performed an act that facilitated or encouraged the use or the carrying of the firearm. United States v. Giraldo, 80 F.3d at 676. ---------------------------------------- Page Break ---------------------------------------- 5 Here, petitioner and Vale participated in a joint venture to grow marijuana on petitioner's property. Vale carried the shotgun when he ordered the hunters to leave the property, thus demonstrating that Vale carried the gun in order to protect the marijuana growing operation. Petitioner's storing of the shotgun in his mobile home was an act that facilitated Vale's carrying of the shotgun and showed that petitioner knew that the shotgun would be carried to prevent discovery of the marijuana. 1 2. Petitioner also contends (Pet. 14-17) that the court of appeals erred in affirming his Section 924(c) conviction without addressing the Bailey claim he raised in his petition for rehearing. There is no merit to that claim. Under Fed. R. App. 28 (a), "[t]he brief of the appellant must contain * * * the contentions of the appellant on the issues presented, and the reasons therefor." The courts of appeals have broad discretion not to consider issues not raised in an ___________________(footnotes) 1 Petitioner's reliance (Pet. 8-11) on United States v. Wilson, 77 F.3d 105 (5th Cir. 1996), United States v. Torres- Maldonato, 14 F.3d 95 (1st Cir.), cert. denied, 513 U.S. 870 (1994), United States v. Medina, 32 F.3d 40 (2d Cir. 1994), and United States v. Powell, 929 F.2d 724 (D.C. Cir. 1991), is misplaced. In Wilson, the court of appeals ruled that Bailey required reversal of the defendant's conviction because the evidence showed only possession of a firearm by the defendant. 77 F.3d at 110. In Torres-Maldonato, the defendants did not possess the firearms and there was no evidence that they knew of the principals' illegal activities. 14 F.3d at 103. In Medina, the court of appeals held that the defendant did not perform an act to facilitate the principal's use of a firearm. 32 F.3d at 45-46. In Powell, the court of appeals held that the defendant did not know that his accomplices would carry a firearm during the crime. 929 F.3d at 728-729. Here, by contrast, petitioner's storage of the shotgun demonstrated both an act to facilitate the crime and his intent and knowledge that Vale would carry the firearm to protect petitioner's drug cultivation venture. ---------------------------------------- Page Break ---------------------------------------- 6 appellant's opening brief. See, e.g., United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996) ("[a]n appellant abandons all issues not raised and argued in its initial brief on appeal"), petition for cert. pending, No. 96-1440 (filed Mar. 10, 1997); United States v. Estrada-Trochez, 66 F.3d 733, 736 (5th Cir. 1995); United States v. Davis, 52 F.3d 781, 783 (8th Cir. 1996); United States v. Mitchell, 31 F.3d 628, 633 n.3 (8th Cir. 1994); Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993), cert. denied, 510 U.S. 1215 (1994); McKethan v. Texas Farm Bureau, 996 F.2d 734, 739 n.9 (5th Cir. 1993), cert. denied, 510 U.S. 1046 (1994); Williams v. Leach, 938 F.2d 769, 771-773 (7th Cir. 1991); Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir. 1990); Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th Cir. 1984). The court of appeals properly exercised its discretion not to notice petitioner's belated claim of error in this case. Because petitioner did not challenge his conviction on Bailey grounds at trial, his claim would be reviewed, if at all, only for plain error. The plain error doctrine requires a defendant to show that an obvious error was committed and that the error affected his substantial rights. Even if the defendant meets those hurdles, the reviewing court has discretion not to reverse the conviction. It should reverse only if the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732-736 (1993). Petitioner's conviction rests on the "carry" prong of Section 924(c). The indictment charged petitioner under both the "use" and --------------------------------------- Page Break ---------------------------------------- 7 "carry" prongs of Section 924(c). The evidence at trial showed that Vale carried the firearm by holding it in his hand when he ordered the hunters to leave petitioner's property, and that petitioner aided and abetted him by allowing the firearm to be stored in his mobile home. Even if the instructions regarding "use" in this case were inadequate, Vale's conduct clearly constituted a "carrying" of the gun under Section 924 (c). Accordingly, petitioner's conviction for aiding and abetting Vale's carrying of the gun was not called into question by this Court's decision in Bailey. Because petitioner's Bailey claim was insubstantial, it could not have constituted "plain error" in any event. 2 This case need not be held pending a decision in Johnson v. United States, No. 93-203 (argued Feb. 25, 1997). That case presents the question whether a defendant's perjury conviction should be reversed because the trial court erroneously resolved the issue of materiality itself rather than submit it to the jury, when ___________________(footnotes) 2 Petitioner's reliance (Pet. 16) on United States v. Spring 80 F.3d 1450 (10th Cir.), cert. denied, 117 S. Ct. 385 (1996), is misplaced. In Spring, the court of appeals reversed the defendant's Section 924(c) conviction because the jury instructions did not adequately focus on the "carry" prong of the statute and the evidence showing that the defendant aided and abetted an accomplice to commit a Section 924(c) violation was not strong. 80 F.3d at 1466. Here, by contrast, the evidence that petitioner aided and abetted Vale was substantial. United States v. Ramirez-Ferrer, 82 F.3d 1149 (1st Cir.), cert. denied, 117 S. Ct. 405 (1996), relied on by petitioner, see Pet. 17, in fact supports the Eleventh Circuit's decision here. As in this case, there was in Ramirez-Ferrer no "substantial doubt about the certainty of the defendants' guilt." Id. at 1152. Accordingly, the First Circuit declined to reverse the defendants' Section 924(c) convictions under a plain error standard. ---------------------------------------- Page Break ---------------------------------------- 8 the defendant did not object to the error in the district court. In Johnson, the defendant properly presented his claim in the court of appeals. In this case, petitioner failed to present his claim in the the court of appeals. Accordingly, the result in Johnson is unlikely to affect the analysis or disposition of this case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS E. BOOTH Attorney APRIL 1997