EARL FOSTER BOISE, PETITIONER V. UNITED STATES OF AMERICA No. 90-7217 In The Supreme Court Of The United States October Term, 1990 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 OPINION BELOW The opinion of the court of appeals (Pet. App. 1-24) is reported at 916 F.2d 497. JURISDICTION The judgment of the court of appeals was entered on September 27, 1990. A petition for rehearing was denied on November 23, 1990 (Pet. App. B). The petition for a writ of certiorari was filed on February 21, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether there was sufficient evidence to support petitioner's conviction for second degree murder. 2. Whether petitioner was denied due process when the district court imposed a sentence under the Sentencing Guidelines. STATEMENT After a jury trial in the United States District Court for the District of Oregon, petitioner was convicted of second degree murder, in violation of 18 U.S.C. 1111(a) and 1153. He was sentenced to 240 months' imprisonment. The court of appeals affirmed. Pet. App. 1-24. 1. Petitioner's six-week-old son, Quinton, died from skull fractures that resulted in severe subdural hemorrhaging. Petitioner was the sole adult taking care of the baby in the three hours before he died. Pet. App. 5-6. Doctors testified that the blows causing Quinton's death most likely "occurred shortly before death." Pet. App. 5. They stated that, while the blows could have occurred before petitioner alone took care of Quinton, in that event, Quinton would have shown symptoms of a coma, unconsciousness, vomiting, and an inability to eat. Ibid. Quinton's mother, however, testified that Quinton had acted normally the day before his death and early on the day of his death. Id. at 5-6. Petitioner's own expert testified that this was not a case of "continuous downhill progressive lethargy and change." Id. at 6. Other evidence at trial, including from the autopsy, indicated that Quinton died of two blunt blows to the head and that the blows could not have been accidental. The blows were most likely inflicted when Quinton was hit with a hand or thrown against a wall. The autopsy also showed that Quinton had suffered extensive prior physical injuries, including earlier head injuries, a broken arm, and 15 broken ribs. The medical examiner who performed the autopsy diagnosed Quinton as a victim of battered-child syndrome. Pet. App. 6-7, 12-13. 2. The court of appeals affirmed. The court held that "a rational jury could have found (petitioner) guilty beyond a reasonable doubt of second degree murder" (Pet. App. 5). The court based this holding on testimony by the physicians that the fatal blows most likely occurred shortly before the baby's death and petitioner's admission that, during the three hours before Quinton died, petitioner "was the sole adult caring for the child." Ibid. The court observed that, while the physicians acknowledged that the blows could have occurred earlier, the physicians also stated that, in that case, the baby would have exhibited clear symptoms. "No such symptoms were observed," the court noted. Ibid. The court further held that, "(f)rom the circumstances of Quinton's death" (Pet. App. 7) the jury could rationally find beyond a reasonable doubt that petitioner killed Quinton with malice aforethought. "The evidence showed that six-week old Quinton had received repeated beatings over a period of three and a half weeks and that, finally, two blows to the head, received when he was in (petitioner's) care, killed him." Ibid. In light of this evidence and in the absence of evidence negating malice, "the jury could not rationally conclude that (petitioner) acted in the heat of passion or with gross negligence." Id. at 7 n.4. The court upheld (Pet. App. 8-15) the district court's admission of Quinton's prior injuries and the physician's diagnosis of him as a battered child. The court of appeals reasoned (id. at 10 (footnote omitted)) that "the prior abuse of Quinton was under Rule 404(b) (of the Federal Rules of Evidence) probative of a material issue other than character; that is, it was evidence of malice and absence of accidental death." /1/ Moreover, "the jury could reasonably have concluded that (petitioner) inflicted the injuries," and for that reason "(t)he court properly allowed this evidence to go to the jury" (id. at 11). As the court explained (ibid.), older head injuries, "probably the result of excessive shaking, were inflicted a day or two before death," while petitioner "was then the primary care-taker." The baby's left arm and 15 ribs were broken while the baby was in the care of petitioner and his wife, and there was no suggestion at trial that the wife had mistreated the child. Ibid. The court also concluded (id. at 12-15) that the diagnosis of battered-child syndrome was properly admitted as evidence of intent and of the absence of accident. The court noted (id. at 14) that, "(b)ecause battered-child syndrome has gained general judicial recognition, the proponent was not required to qualify it under Frye (v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923))." The court further held (Pet. App. 17-18) that petitioner was properly sentenced under the Sentencing Guidelines. The court rejected petitioner's argument that he was denied due process because, in deciding to go to trial, he had relied on the decision in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988), vacated, 488 U.S. 1036 (1989), holding the Guidelines unconstitutional. The court observed that the Guidelines had been in effect when petitioner committed the offense and that they had been held constitutional by this Court in Mistretta v. United States, 488 U.S. 361 (1989), by the time petitioner was sentenced. Pet. App. 17. The court determined that "(petitioner) and his attorney were 'on notice that the guidelines were in effect and that the Supreme Court might vacate (Gubiensio-Ortiz).'" Pet. App. 18 (quoting United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1053 (9th Cir. 1990)). The court accordingly found no due process violation in applying Mistretta retroactively. Judge Tang dissented from the majority's holding as to the sufficiency of the evidence. He distinguished the physicians' "testimony about the final hemorrhage from their testimony about the trauma that ultimately caused it." Pet. App. 21. He believed (ibid.) that "there (was) no evidence that (the baby) was reinjured again before his final hemorrhage," and "(t)he final hemorrhage may well have occurred spontaneously, without trauma." ARGUMENT 1. Petitioner renews his claim (Pet. 8-11) that the government failed to prove properly the crime of second degree murder. The court of appeals correctly rejected that fact-bound claim, and further review is therefore unwarranted. a. Petitioner asserts (Pet. 8-9), first, that the government failed to prove the cause of Quinton's death beyond a reasonable doubt. As the court of appeals concluded, there was sufficient evidence from which the jury reasonably could conclude beyond a reasonable doubt that petitioner caused the baby's death. The evidence showed that the child died from bilateral skull fractures that resulted in severe subdural hemorrhaging. C.A. E.R. 171. Three physicians testified that the blows most likely occurred shortly before death. In the three hours before the baby died, petitioner admitted he was the sole adult caring for Quinton. While the physicians indicated that the blows could have occurred earlier, they also stated that, in that event, Quinton would have exhibited symptoms of that injury, including vomiting, coma, and unconsciousness. No such symptoms were observed. Pet. App. 5. On the contrary, witnesses including the baby's mother testified that Quinton behaved normally the day before his death and earlier the day of his death. Petitioner's own medical expert testified that this was not a "story of a continuous downhill progressive lethargy and change" and that there could well have been an injury very shortly before the baby died. Pet. App. 6. See also United States v. Harris, 661 F.2d 138, 141 (10th Cir. 1981) (evidence sufficient that defendant caused child's death where defendant admitted that he had sole custody of child when child received the injuries causing death); United States v. Bowers, 660 F.2d 527, 529 (5th Cir. 1981) (same). /2/ Judge Tang believed (Pet. App. 21) that "(t)he final hemorrhage may well have occurred spontaneously, without trauma." As the majority noted (Pet. App. 6 n.3), however, this analysis ignores the testimony of the physicians and other witnesses. If the skull fracture had occurred before the final hemorrhage, the baby would have shown signs of a head injury. He did not. Quinton behaved like a normal, healthy baby until the afternoon when he came into the sole care of petitioner. /3/ b. Petitioner also claims (Pet. 9-10) that the evidence of malice aforethought was insufficient. As the court of appeals observed (Pet. App. 7), however, "(t)he evidence showed that six-week old Quinton had received repeated beatings over a period of three and a half weeks and that, finally, two blows to the head, received when he was in (petitioner's) care, killed him." From these circumstances, the jury could conclude beyond a reasonable doubt that petitioner displayed "a wanton and depraved spirit, a mind bent on evil mischief without regard to its consequences." United States v. Celestine, 510 F.2d 457, 459 (9th Cir. 1975). /4/ Petitioner argues (Pet. App. 10-11) that evidence of Quinton's prior injuries, including the diagnosis of him as a victim of "battered child syndrome" was improperly admitted under Federal Rule of Evidence 404(b). This Court has recognized that evidence of prior acts is relevant under Rule 404(b) "if the jury can reasonably conclude that the act(s) occurred and that the defendant was the actor." Huddleston v. United States, 485 U.S. 681, 689 (1988). Petitioner asserts that the evidence was insufficient to show that he caused the prior injuries. /5/ That assertion is incorrect. The evidence showed that the baby's prior injuries had occurred and that petitioner inflicted them. As the court of appeals pointed out (Pet. App. 7), expert testimony established that "the head-brain injuries were probably caused by violent shaking and that the broken ribs resulted from compression-type squeezing." The testimony indicated that the prior head injuries occurred within a day or two of death, while petitioner was the baby's primary caretaker. Id. at 11. Although petitioner's wife had access to the baby over this period, she testified that she never shook the baby. Ibid. Quinton's left arm and 15 ribs had been broken earlier, while petitioner and his wife were the primary caretakers. Ibid. Petitioners' wife testified that she never squeezed the baby and did not know how his arms and ribs had been broken. Ibid.; see also Gov't C.A. Br. 38, App. A. /6/ Because a jury reasonably could have found from this evidence that petitioner inflicted the prior injuries, the court of appeals properly upheld its admission. See United States v. Harris, supra; United States v. Colvin, 614 F.2d 44, 45 (5th Cir.), cert. denied, 446 U.S. 945 (1980). /7/ 2. Petitioner also renews his claim (Pet. 11-12) that he relied on the unconstitutionality of the Sentencing Guidelines in going to trial and making strategic trial decisions and that he therefore could not, consistent with due process, be sentenced under the Guidelines. That claim is without merit. When petitioner committed the offense, the Guidelines were in effect. Although at the time of petitioner's trial the Ninth Circuit had declared them unconstitutional (see Gubiensio-Ortiz v. Kanahele, supra), this Court had granted certiorari to review their constitutionality several weeks before petitioner's July 7, 1988, arraignment (Mistretta v. United States, 486 U.S. 1054 (order of June 13, 1988, granting cert.)). The Court's opinion in Mistretta had issued by the time of petitioner's sentencing. As the court of appeals in the present case accordingly observed (Pet. App. 18), petitioner and his counsel were on notice that Gubiensio-Ortiz might be vacated. Under these circumstances, imposition of a Guidelines sentence did not violate petitioner's due process rights. Pet. App. 17-18. Accord United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1052-1053 (9th Cir. 1990); United States v. Kane, 876 F.2d 734, 735-736 (9th Cir.), cert. denied, 110 S. Ct. 173 (1989). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General GEOFFREY R. BRIGHAM Attorney APRIL 1991 /1/ Petitioner had suggested that the injuries causing Quinton's death occurred when petitioner's step-daughter dropped Quinton on a couch after giving him a bath. Pet. App. 5 n.2. The physicians testified, however, "that such an accident would not have caused Quinton's head injuries and that there was no evidence that he was injured then." Ibid. /2/ The jury could also consider testimony by a corrections officer who heard petitioner tell his wife, during a phone call two weeks after the baby died, that she should not talk to FBI investigators and "(t)hat all he would have to do (was) keep their mouth shut and they wouldn't find out anything." Gov't C.A. Br. 15. Petitioner's wife denied that petitioner told her not to talk with the FBI. She claimed that the phone call concerned an argument over petitioner's flirtation with a cocktail witness. Petitioner gave a similar story. On cross-examination, however, petitioner was unable to explain how his statements about "keeping your mouth shut" and "not talking to investigators" related to his alleged flirtation with the waitress. Gov't C.A. Br. 15. The jury could have considered this testimony about the phone call as evidence of petitioner's guilty knowledge and his criminal participation in his son's death. /3/ In addition, Judge Tang does not account for petitioner's own statements showing his guilty knowledge, see supra note 2. /4/ As the court of appeals noted, there was no evidence in the record to show that petitioner acted in the heat of passion or with recklessness or gross negligence. Pet. App. 7 n.4. /5/ At trial, a physician described the battered-child syndrome as a generic, medical term applied to a group of injuries resulting from non-accidental causes. See Pet. App. 12 & n.14. /6/ The baby's mother suggested that she might have broken the baby's arm when she rolled over him in bed, but the physicians testified that the injury could not have happened that way. Pet. App. 11 n.11. /7/ The Ninth Circuit's ruling here does not raise any of the issues presented by its decision in Estelle v. McGuire, 902 F.2d 749 (1990), in which this Court granted certiorari, 111 S. Ct. 1071 (1991). In McGuire, the Ninth Circuit held that a defendant convicted of child-abuse murder was deprived of due process by the admission of evidence of prior injuries that were not connected to the defendant. 902 F.2d at 755. We disagree with that holding, see U.S. Amicus Brief, Estelle v. McGuire, No. 90-1074, at 12-19 (filed April 1991), but in any event it is inapplicable here. The court of appeals in this case distinguished McGuire, stating (Pet. App. 10 n.9) that here "(t)he government introduced evidence from which a jury could reasonably conclude that (petitioner) had injured (the baby)." There is therefore no reason to hold this case pending resolution of McGuire.