No. 96-8080 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 JERRI D. ALLEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General LOUIS M. FISCHER Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the district court's jury instruction on one element of petitioner's offense constituted plain error warranting reversal of her conviction. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8080 JERRI D. ALLEN, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 1-26) is not reported, but the judgment is noted at 102 F.3d 550. JURISDICTION The judgment of the court of appeals was entered on October 30, 1996. A petition for rehearing was denied on December 2, 1996. The petition for a writ of certiorari was filed on March 3, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). ---------------------------------------- Page Break ---------------------------------------- STATEMENT After a jury trial in the United States District Court for the Northern District of Texas, petitioner was convicted on one count of money laundering, in violation of 18 U.S.C. 1957, and on one count of conspiring to commit that offense, in violation of 18 U.S.C. 371 and 1957. She was sentenced to 78 months' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. Pet. App. 1-26. 1 1. Petitioner was part of a conspiracy to launder the proceeds of a cocaine distribution scheme conducted by Robert Chambers, a boyfriend of petitioner's mother. In 1989, petitioner used money that she received from her mother, and ultimately from Chambers, to buy a house for approximately 90,000. Petitioner paid for that house by depositing more than 90,000 in cash in five different banks, and then by purchasing ten cashier's checks, nine of which were in amounts below the 10,000 threshold of federal reporting requirements for currency transactions. Most of the cashier's checks listed petitioner as the remitter; one, in the amount of 8,000, bore the name of Harry Pierce, a friend of petitioner's mother and of Chambers. Pet. 5; Pet. App. 9-10; Gov't C.A. Br. 31-32. ___________________(footnotes) 1 Petitioner was acquitted on two counts of structuring financial transactions (18 U.S.C. 5322 (b) and 5324 (a)). Co- defendant Ronald W. Hughes, Jr. was acquitted on all counts against him. Co-defendants Ronald W. Hughes, Sr. and Betty L. Allen were convicted on several counts, and their convictions were affirmed by the court of appeals. See Pet. App. 5, 26. ---------------------------------------- Page Break ---------------------------------------- 3 2. At trial, the district court instructed the jury that, to convict petitioner of money laundering under 18 U.S.C. 1957, 2. it had to find, among other things, "[t]hat the monetary transaction was of a value greater than 10,000" and "[t]hat the criminally derived property was in fact derived from the specified unlawful activity of importation, sale or distribution of cocaine." Pet. App. 8-9. Petitioner did not object to that instruction at trial. On appeal, however, petitioner argued that the trial court had erred in failing to instruct the jury that, to convict, it had to find that the criminally derived money used in the purchase of her house -- rather than the purchase price itself -- exceeded 10,000. The government conceded that the instruction was erroneous, but argued that the error did not warrant reversal under the plain-error rule. Gov't C.A. Br. 30-33; see Fed. R. Crim. P. 52 (b). The court of appeals affirmed. It held that, even if the district court had committed an "error" that was in fact "plain," that error did not warrant the "exercise [of] remedial discretion," because petitioner had not shown that "the error was prejudicial, affecting the outcome of the proceeding." Pet. App. 9; cf. United States v. Olano, 507 U.S. 725, 732 (1993). The court specifically rejected petitioner's contention that, under ___________________(footnotes) 2 Section 1957 imposes criminal sanctions on anyone who, in specified circumstances, "knowingly engages or attempts to engage in a monetary transaction in criminally derived property that is of a value greater than 10,000 and is derived from specified unlawful activity." ---------------------------------------- Page Break ---------------------------------------- 4 the district court's instruction, the jury could have convicted her on the Section 1957 counts by finding only that the 8,000 check naming Pierce as the remitter -- and not the majority of the 90,000 that petitioner had passed in small increments through various bank accounts -- was the product of criminal activity. The facts of this case, the court held, foreclosed that argument: "the jury's decision to convict [petitioner] on the 1957 charge hinged upon its belief or disbelief that [petitioner] knew that the minimum amount of 44,455.85 that the government contended was criminally tainted was in fact tainted." Pet. App. 10. Accordingly, the court found "no prejudice" and declined to reverse petitioner's conviction. Id. at 11. 3 ARGUMENT Petitioner does not challenge the court of appeals' factbound determination (see Pet. App. 9-10) that, in light of the evidence presented at trial, the instructional error alleged in this case had no effect on the jury's ultimate determination or guilt or innocence. Instead, petitioner contends that the court of appeals should not have conducted any form of plain- error review because, in her view, an error in instructing the jury on an element of an offense, even when the defendant did not object to that error at trial, "is a 'structural error' ___________________(footnotes) 3 The court rejected petitioner's other claims, including her challenges to the sufficiency of the evidence, to other instructions of the court, and to her sentence. Petitioner does not renew those claims here. ---------------------------------------- Page Break ---------------------------------------- 5 reversible without the need for a showing of prejudice." Pet. 11; see also id. at 14. As petitioner recognizes (Pet. 8, 10), a similar claim was presented in Johnson v. United States, No. 96-203, which this Court decided on May 12, 1997. In Johnson, the Court rejected that claim and held that, in the absence of a timely objection, a district court's failure to submit an element of an offense to the jury is subject to plain-error review under Rule 52 (b) of the Federal Rules of Criminal Procedure. The Court therefore held that, contrary to petitioner's position here (see Pet. 10-15), an instructional error concerning an element of an offense warrants the exercise of remedial discretion only if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Johnson, slip op. 8 (internal quotation marks omitted). The Court determined that the defendant in Johnson had failed to establish her entitlement to relief under that standard because the evidence on the omitted element was "overwhelming" and "essentially uncontroverted," and because the defendant had presented "no plausible argument" that the error had affected the verdict. Slip op. 8-9. Although the petition in this case presents no argument at all concerning any effect that the alleged error may have had on the verdict, petitioner did make such an argument in the court of appeals (see Appellant's Reply Br. 14-16 & n.7), as that court itself noted (see Pet. App. 10). Moreover, petitioner "dispute[d] vigorously" the prosecution's claim that the money ---------------------------------------- Page Break ---------------------------------------- 6 with which she bought her house "was criminally tainted." Ibid. In that respect, petitioner's claim of plain error is arguably distinguishable from the claim rejected in Johnson. Johnson does not cast doubt, however, on the validity of the court of appeals' judgment; to the contrary, it supports it. The court of appeals rejected petitioner's "prejudice" argument because, in its view, a reasonable jury could not have found that any part of petitioner's 90,000 payment for her house was criminally tainted without also finding that at least half of that payment was tainted. See Pet. App. 10. Although the court correctly characterized relief under Rule 52 (b) as an "exercise [of] remedial discretion," it appeared to decide this case under the "substantial rights" component of the plain-error analysis rather than under the "discretionary" component that was dispositive in Johnson. See Pet. 9, 11; compare Johnson, slip op. 7-9; see generally United States v. Olano, 507 U.S. 725 (1993). The court's inquiry into the effect of the alleged error on the verdict is, however, indistinguishable from the inquiry required as part of that discretionary analysis. See Johnson, slip op. 8-9. Petitioner's only remaining arguments in the court of appeals were relevant not to the proposition that the allegedly erroneous instruction had an effect on the verdict, but to her separate claim (not presented here) that there was insufficient evidence to support the jury's determination that any portion of the payment was tainted. See id. at 10-11. ---------------------------------------- Page Break ---------------------------------------- 7 For that reason, a remand in light of Johnson is unnecessary. The court of appeals concluded that the instructional error had no effect on the verdict. Nothing in Johnson requires reversal of a conviction in the absence of a "plausible argument" (slip op. 9) that an instructional error, to which no objection was made at trial, did have some effect on the verdict. 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 LOUIS M. FISCHER Attorney MAY 1997