MICHAEL ALAN LAU AND BRUCE TAYLOR, PETITIONERS V. UNITED STATES OF
AMERICA

   No. 87-1311

   In the Supreme Court of the United States

   October Term, 1987

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

   Memorandum for the United States

   Petitioners contend that "similar act" evidence is admissible at
trial under Fed. R. Evid. 404(b) only when the district court finds
that the similar acts have been proved by clear and convincing
evidence.

   1. Following a jury trial in the United States District Court for
the District of Puerto Rico, both petitioners were convicted on one
count each of conspiracy to possess cocaine with intent to distribute,
in violation of 21 U.S.C. 841(a)(1) and 846;  importation of cocaine,
in violation of 21 U.S.C. 952(a) and 18 U.S.C. 2;  and possession of
cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1)
and 18 U.S.C. 2.  Petitioner Lau was sentenced to concurrent terms of
29 years' imprisonment and a $40,000 fine on the conspiracy and
importation counts.  On the possession count, he was sentenced to a
consecutive term of 15 years' imprisonment and a $20,000 fine (Pet.
App. 38-39).  Petitioner Taylor was sentenced to concurrent terms of
15 years' imprisonment and a $20,000 fine on the conspiracy and the
importation counts, and a consecutive term of ten years' imprisonment
and a $20,000 fine on the possession count (id. at 41-42).  The court
of appeals affirmed (id. 5-26).

   The evidence at trial showed that on August 9, 1985, petitioner Lau
landed a helicopter in San Juan, Puerto Rico, where it was met by
Lau's business partner, petitioner Taylor.  Lau and a passenger
unloaded several suitcases from the helicopter for transfer to an
airplane, which was to carry Lau's passengers and the baggage to
Florida.  The airplane's pilot, however, insisted on seeing the
contents of the suitcases;  when the pilot opened the suitcases in the
presence of a customs inspector, he discovered 193 pounds of cocaine.
Pet. App. 8-10.

   At trial, the government informed the district court that it
intended to offer evidence of petitioners' similar acts under Fed. R.
Evid. 404(b).  Specifically, the government wanted to introduce
testimony by Thomas Aiello that, in January 1983, Aiello had assisted
Taylor and others in unloading a number of boxes containing cocaine
from an airplane that had been piloted by Lau.  Petitioners objected,
arguing, among other things, that their participation in the January
1983 drug venture could not be established by clear and convincing
evidence (Tr. 430-437).

   At a hearing on petitioner's objections, Aiello testified that in
January 1983 he assisted a group of drug smugglers in unloading
cocaine from an airplane in Broxton, Georgia.  He identified Lau as
"Mike," the pilot of the airplane, and Taylor as "Bruce," one of the
offloaders (Tr. 445).  Aiello stated that he first met Taylor at the
landing strip about one week before the plane landed (Tr. 444-445),
and that he first met Lau in August 1982 at an airport lounge in
Atlanta, Georgia (Tr. 446).  Aiello indicated that he had an
opportunity to observe petitioners for several hours because the plane
became stuck in mud.  Unable to move the plane, Aiello and petitioners
drove to Jacksonville together.  Tr. 449-451.  In addition, Aiello
testified that he was arrested by federal agents in late 1983 (Tr.
446), and that he subsequently selected photographs of each petitioner
from an array (Tr. 447-448).  Aiello's account was in part
corroborated by the testimony of a federal agent (Tr. 469-470, 483).
After hearing that evidence, the district court permitted Aiello to
testify in trial (Tr. 487-488).

   The court of appeals affirmed.  In rejecting petitioners' challenge
to the admission of the similar act evidence, the court noted that
"(s)everal factors weigh in favor of a correct identification" of
petitioners by Aiello:  "Aiello twice confidently identified Lau and
Taylor in open court, both before the judge and before the jury";
"Aiello had adequate opportunity to observe Lau and Taylor at the time
of the Broxton incident" (Pet. App. 17);  independent corroboration
"exist(ed) in the facts that Lau has a license to fly the type of
plane used at Broxton (Tr. 583), that Taylor was nearby in Alabama at
the time (Tr. 602, 607), and that Aiello consistently used
(petitioners') correct first names from the time that he first
described the Broxton incident to drug enforcement agents" (Pet. App.
18).  The court also noted that "Aiello correctly identified
(petitioners) from a photo album that a DEA agent showed him sometime
before the present (cr)ime took place," so that "the DEA could not
have impermissibly encouraged him to identify Lau and Taylor with an
eye towards prosecuting the present crime" (id. at 19-20).  /1/

   With this as background, the court rejected petitioners' argument
that Aiello's testimony should have been excluded because it did not
establish their involvement in the Broxton incident by clear and
convincing evidence.  The court explained that it "has not laid down a
separate mechanical evidentiary test for 'past bad act'
identification" (Pet. App. 22).  But "(w)ithout expressing a view
about whether the evidence here is or is not 'clear and convincing,'"
the court "conclude(d), on balance, that its probative value is
sufficient to bring the question of admissibility within the scope of
the trial court's lawful decisionmaking authority" (id. at 23).

   2. Petitioners contend (Pet. 10-15) that evidence of "similar acts"
is admissible under Fed. R. Evid. 404(b) only when the district court
is satisfied by clear and convincing evidence that the defendant
committed those acts.  As petitioners correctly note, the circuits are
in disarray on this issue:  several have adopted petitioners'
standard, while others have held "similar acts" evidence admissible
under a less exacting test.  See U.S. Brief at 13-14 n.3 (citing
cases) in Huddleston v. United States, No. 87-6.  /2/ The propriety of
the clear and convincing standard currently is before the Court in
Huddleston.  Because the court below expressly declined to determine
whether the evidence here satisfies that standard, this case should be
held pending the Court's decision in Huddleston and disposed of in
light of that decision.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   APRIL 1988

   /1/ The court also noted several considerations that pointed in the
other direction:  shortly after his arrest, Aiello gave physical
descriptions of petitioners that misstated their heights, and he may
have incorrectly stated that Lau was clean shaven (Pet. App. 18).  In
addition, the court concluded that there were some suggestive elements
to the photo array (id. at 20).

   /2/ We are furnishing a copy of our brief in Huddleston to counsel
for the petitioners here.