No. 96-9082 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 JOSEPH SPRIGGS, GREGORY deMESONES, JOHN E. ADAMSON) AND PAUL P. SMYTH, PETITIONERS v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General KATHLEEN A. FELTON Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the district court committed plain error by instructing the jury that the sale and purchase of an automobile for cash is a "financial transaction" within the meaning of the money laundering statute, 18 U.S.C. 1956. 2. Whether the district court erred by finding that the prosecutor offered race-neutral explanations for exercising her peremptory strikes. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-9082 JOSEPH SPRIGGS, GREGORY deMESONES, JOHN E. ADAMSON, AND PAUL P. SMYTH, PETITIONERS v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 1-20) is reported at 102 F.3 1245 JURISDICTION The judgement of the court of appeals was entered on December 17, 1996. Pet. App. 1. Petitions for rehearing were denied on Feburary 20, 1997. Id. at 21-25. The petition for a writ of certiorari was filed on May 21, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT On March 11, 1993, a federal grand jury in the District of Columbia returned a fifteen-count indictment charging petitioners and various business entities with conspiracy to commit money ---------------------------------------- Page Break ---------------------------------------- 3 laundering, to fail to report cash exceeding $10,000 received in trade or business, and to make false and fraudulent statements on return, in violation of 18 U.S.C. 371 and 1956(a) (3) , and 26 60501. and 7206. The indictment also charged petitioners with various counts of money laundering and attempted money laundering, in violation of 18 U.S.C. 1956 (a) (3) . Following a jury trial, petitioner Spriggs was convicted on two counts of money laundering, petitioner deMesones was convicted on three counts of money laundering, petitioner Adamson was convicted on one count of attempted money laundering, and petitioner Smyth was convicted on seven counts of money laundering and six counts of attempted money laundering. 1. Petitioner Spriggs was sentenced to 41 months' imprisonment, petitioners deMesones and Adamson were sentenced to 57 months' imprisonment, and petitioner Smyth was sentenced to 108 months' imprisonment. They appealed, and the court of appeals affirmed. Pet. App. 1-20. 1. The evidence at trial established that petitioners, all salesmen at car dealerships located in the Virginia suburbs of Washington, D.C., were caught in a sting operation in which an undercover police posed as a drug dealer seeking to buy cars with the cash proceeds of cocaine sales. District of Columbia Police Detective Larry Best was the undercover officer; he was part of a task force from the Federal Bureau of Investigation; the Internal Revenue Service, and the Metropolitan Police Department ___________________(footnotes) 1 All of the petitioners were acquitted on the conspiracy count. In addition, petitioners Smyth, Spriggs, and Adamson were each acquitted on one count of money laundering. ---------------------------------------- Page Break ---------------------------------------- 4 that sought to uncover money laundering at local car dealerships. Pet. App. 5; Gov't C.A. Br. 9, 11-12, 14, 27. Officer Best made it clear to his contacts from the beginning of the the two-year operation that he worked strictly for cash and that sold cocaine for a living. The pattern was the same for each salesman. Once Best explained that he wanted to buy cars for cash with his drug proceeds, the salesman filled out paperwork with false D.C. drivers' licenses provided by Best, counted cash in small bills, or drove Best or his partner to pick up bags of cash. Each petitioner except Adamson accepted substantial cash tips from Best, beyond the cash paid to the dealerships. Best completed a total of nine deals to purchase automobiles, and he spent several weeks arranging a final transaction, never completed, for the purchase of cars worth one million dollars, to be shipped to his supposed drug connection in Colombia. Pet. App. 5. Petitioner Smyth, a manager at one of the dealerships, was a principal participant in Best's operation. Smyth arranged contacts with willing salesmen and received a $5,000 tip from Best for his help in arranging the transaction in which cars were to be shipped to Colombia. Pet. App. 5; Gov't C.A. Br. 9-12, 19-20, 39-40. Petitioner deMesones played a key role in three early purchases. Tape-recorded conversations showed that deMesones was aware of the supposed source of Best's funds, and also revealed deMesones seeking a specific payment for structuring a cash purchase. Pet. App. 5-6; Gov't C.A. Br. 12-16, 17-22. Petitioner Spriggs worked for deMesones. He drove from ---------------------------------------- Page Break ---------------------------------------- 5 Virginia to Washington, D.C. on three occasions to pick up Best and cash Best was using to purchase cars; recorded conversations clearly showed Spriggs's understanding that the cash represented drug proceeds. Pet. App. 6; Gov't C.A. Br. 15-17, 18-19, 21-22. Petitioner Adamson knowingly relied on false identification in filling out paperwork in connection with the proposed purchase of the cars to be shipped to Colombia; Best also made clear to him the source of the cash. Pet. App. 6; Gov't C.A. Br. 35-36. 2. Before trial, potential jurors completed a questionnaire asking their opinions about car dealers and dealerships, police officers, money laundering, and drug distribution. Potential jurors were also asked where they were born, where they presently lived and how long they had lived there, their marital status, and whether they had a family. The questionnaire did not ask the potential jurors' race. Gov't C.A. Br. 73. The district court then used the questionnaire as a guide in conducting voir dire of the pool of 116 potential jurors. Once the pool of potential jurors had been reduced to 48, the parties exercised their peremptory challenges, simultaneously and blindly, on a randomly chosen group of 28. The prosecutor used four of her six strikes against white potential jurors. The defendants used two of their ten strikes against whites, one of whom was also struck by the government. Because there were only five whites in the randomly chosen group of 28, the result was an all-black jury. Pet. App. 10; Gov't C.A. Br. 73. One defense counsel challenged the government's use of its ---------------------------------------- Page Break ---------------------------------------- 6 peremptory challenges against white potential jurors as a prima facie equal protection violation (see Batson v. Kentuckv, 476 us. 79 (1986)). The judge noted that, because of the method used to exercise strikes, he had no way of verifying defendants' claim regarding the race of the struck jurors. Without ruling on whether a Prima facie case had in fact been shown, the judge asked the prosecutor whether she had any comment, and the prosecutor offered her reasons for the strikes she made. Pet. App. 11; Gov't C.A. Br. 73-74. The prosecutor explained that she was looking for "the average, typical, born-and-bred District of Columbia resident. Not white, not black, but people who had raised families in this city, people who have a stake in our community." Pet. App. 11; Gov't C.A. Br. 80. The prosecutor continued with a detailed explanation of her reasons for each of the strikes she exercised. Her reasoning was based on a number of factors, including potential jurors' specific occupations, as well as indications that potential jurors had strong opinions about cars, had possessed drugs or thought some drugs should not be criminalized, were not long-time residents of the city, or were not raising a family in the city. Pet, App. 11; Gov't C.A. Br. 81-84. The district court credited the prosecutor's race-neutral explanations, saying that it could "certainly see no equal protection violation," and commenting that the prosecutor had explained her reasons "in more detail than she needed to." Gov't C.A. Br. 74. The court of appeals found that the district court did not ---------------------------------------- Page Break ---------------------------------------- 7 clearly err by accepting the prosecutor's explanations. Pet. App. 11. 3. At trial, the district court instructed the jury on the essential elements of the money laundering offenses charged, explaining that the money laundering statute requires that the defendant conduct a " financial transaction ." 18 U.S.C. 1956. 2. The court instructed the jury on the meaning of that term as follows (Pet. App. 15): [T]he government must prove that the defendant conducted a financial transaction. There are several terms used in this element that I will define for you. The term "conducts" includes initiating, concluding or participating in initiating or concluding a transaction. The term "transaction" includes a purchase, sale, transfer, delivery or other disposition. The term "financial transaction" means any transaction as the term has just been defined which in any way or degree affects interstate or foreign commerce. I instruct you that the sale and purchase of an automobile for cash is a financial transaction within the meaning of the money laundering statute. Petitioners objected to the instruction, arguing that the last sentence of the instruction operated to remove from jury consideration the entire financial transaction element. Pet. App. 15-16. On appeal, however, petitioners raised a different challenge, arguing instead that the instruction precluded the jury from considering only the narrower issue of whether the automobile sales affected interstate commerce. Ibid Because petitioners had raised an objection at trial that was too general to alert the district court to the claim they later ___________________(footnotes) 2 The term "financial transaction" is defined as including "a transaction which in any way or degree affects interstate or foreign commerce * * * (ii) involving the transfer of title to any * * * vehicle." 18 U.S.C. 1956(c)(4)(A). ---------------------------------------- Page Break ---------------------------------------- 8 raised on appeal, the court of appeals reviewed the claim for plain error only. Pet. App. 16. The court of appeals noted that this Court's decision in United States v. Gaudin, 115 S. Ct. 2310 (1995) (jury must determine materiality when it is element of charged offense) , might also apply to jurisdictional requirements, such as interstate commerce for purposes of the money laundering statute Pet. App. 16. The court found it unnecessary to resolve that question, however, because any error was not plain or obvious at the time of trial, which occurred before the decision in Gaudin and at a time when a number of courts were taking the view that jurisdictional requirements were to be decided by the judge rather than the jury. Ibid. The court therefore found no plain error. Ibid ARGUMENT 1. Petitioners contend (Pet. 9-12) that the court of appeals misapplied the plain error doctrine. Specifically, they argue that the court therefore found no plain error. Specifically, they argue that the court of appeals erroneously measured the plainness of the alleged error in the money laundering instruction according to the law in effect at the time of trial, instead of at. the time of appeal. Claiming that Johnson v. United States, 117 S. Ct. 1544, 1549 (1997), demonstrates that the court of appeals should have focused on the law at the time of appeal, petitioners urge that the decision in this case be vacated and remanded for reconsideration in light of Johnson. Petitioners' contention is without merit. First, petitioners incorrectly assume that the instruction in this case improperly took an element away from the jury, rather ---------------------------------------- Page Break ---------------------------------------- 9 than properly advising the jury of a principle of law relevant to the jury's decision as to an element. The money laundering statute requires only a "minimal effect" on interstate commerce, United States v. Kelley, 929 F.2d 582, 586 (10th Cir.), cert. denied, 502 U.S. 926 (1991), and the sale or purchase of a car will doubtless meet that minimal requirement. See, e.g.,., United States v. Kaufmann, 985 F.2d 884, 892 n.3 (7th Cir.) (sale of automobile a "financial transaction" within meaning of money laundering statute) , cert. denied, 508 U.S. 913 (1993) ; Kelley, 929 F.2d at 586 (purchase of car satisfied requirement of effect on interstate commerce) . An instruction so informing the jury does riot invade the jury's province. Seer e.g., United States v. Parker, 1.04 F.3d 72, 73 (5th Cir.) (en banc) (no directed verdict when jury instructed that if it believed government's evidence in Hobbs Act prosecution regarding handling of cash proceeds from stores that were robbed, then interstate commerce element of offense was satisfied), cert. denied, 117 S. Ct. 1720 (1997); United States v. Gomez, 87 F.3d 1093, 1097 (9th Cir. 1996) (court did not remove element from jury by instructing that apartment building is a building in interstate commerce for purposes of arson statute, 18 U.S.C. 844(i)); United States v. Piche, 981 F.2d 706, 716-717 (4th Cir. 1992) (no directed verdict under 18 U.S.C. 245(b) (2) (F) when court told jury that if it believed evidence of out-of-state manufacture of goods used in business establishment, then government had proved that establishment was "place of public ---------------------------------------- Page Break ---------------------------------------- 10 accommodation"), cert. denied, 508 U.S. 916 (1993). 3. Even if the money laundering instruction was both erroneous and plainly so, 4. however, any error certainly did not "seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). This Court in Johnson reiterated that in such circumstances reversal is inappropriate under the plain error standard. 117 s. Ct. at 1550. Because Johnson itself makes clear that petitioners' convictions should be affirmed, there is no need for further consideration in light of Johnson. In Johnson, the defendant sought reversal of her perjury conviction, objecting for the first time on appeal that the judge ___________________(footnotes) 3 The instruction given in the present case is quite different from the instruction given to the jury in United States v, Aramony, 88 F.3d 1369, 1386-1387 (4th Cir. 1996), upon which petitioners attempt to rely. Pet. 10. In Aramony, the trial court incorrectly instructed the jury that it need not find an actual effect on interstate commerce, so long as such an effect was a probable consequence of the defendant's conduct. 88 F.3d at 1385. In the present case, the jury was not given an incorrect instruction of law, but rather was correctly advised of a legal principle applicable to the finding it was required to make. 4 It is by no means as clear as petitioners suggest (Pet. 9) that the court of appeals in this case erred by focusing on the time of trial when determining the "plainness" of any error. This Court spoke narrowly in Johnson, holding that "in a case such as this where the law at the time of trial was settled and clearly contrary to the law at the time of appeal it is enough that an error be `plain' at the time of appellate consideration." 117 S. Ct. at 1549. In the present case, in contrast, the law at the time of trial was unsettled. See Pet. App. 16 (explaining that, prior to Gaudin, law was unclear as to whether jurisdictional requirements had to be decided by jury rather than judge) . Johnson did not decide the question whether a defendant who fails to object in such circumstances can take advantage on appeal of an intervening favorable clarification of the law. ---------------------------------------- Page Break ---------------------------------------- 11 than the jury had decided the materiality of her perjury. Ct. at 1547. This Court held "that, although the failure to the issue of materiality to the jury was "plain error," reversal was nevertheless not appropriate. Id. at 1549. The Court pointed out that reversal is appropriate under the plain error standard only if, in addition to being plain error affecting substantial rights, the challenged ruling seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 1549-1550. In Johnson, the Court held that the latter requirement was not met, because the issue of materiality "was essentially uncontroverted at trial," the government's proof of materiality was "overwhelming," and petitioner had presented no plausible argument that her perjury was immaterial. Id. at 1550. What was true in Johnson is equally true in the present case. The issue of effect on interstate commerce was uncontested at trial. 5. Pet. 11 n.6; Gov't C.A. Br. 156. There can be no reasonable doubt that the interstate automobile transactions involved in the present case affected interstate commerce "in any way or degree." 18 U.S.C. 1956 (c) (4) (A). See P.9, supra. ___________________(footnotes) 5 Although petitioners suggest (Pet. 11 n.6) that `the existence of an effect on interstate commerce was uncontested at trial because the trial court's instruction foreclosed petitioners from disputing the issue, they have matters entirely backwards. The trial court gave the instruction at issue without specific objection from petitioners. Pet. App. 15-16. Petitioners' failure to make a specific objection clearly reflects their lack of interest in contesting the issue in the trial court. ---------------------------------------- Page Break ---------------------------------------- 12 Finally, petitioners-make no plausible argument to the contrary. 6. Thus , the allegedly inappropriate instruction in no way calls into question the fairness of petitioners' trial, and proper application of the plain error standard supports the court of appeals' decision to affirm petitioners' convictions. 2. Petitioners also contend (Pet. 12-14) that the court of appeals erred in accepting the prosecutor' s race-neutral explanations for her peremptory strikes and ignoring other, race conscious reasons. They claim a conflict among the courts of appeals on the proper method of analyzing an equal protection claim where some of the explanations offered by a party are race-neutral and others are race-conscious. Petitioners' claim is without merit, because its premise is incorrect. Neither the district court nor the court of appeals found that there was any race-conscious reason for the prosecutor's strikes, nor does the record show that there was any "mixed motive" in this case. Pet. App. 11. Petitioners challenged the prosecutor's statement that she was looking for an average District of Columbia citizen, one who would "have a stake in our community," arguing that it was in fact a "proxy''" for race because of the majority black population in the District of Columbia. But the prosecutor ___________________(footnotes) 6 Petitioners' sole argument on the point appears to be that the transactions did not have a "real" or "ultimate" effect on interstate commerce because they involved an undercover officer and resulted in forfeitures. Pet. 11. Petitioners cite no authority in support of this contention, and there are many cases in which transactions involving undercover officers have been found to have affected interstate commerce. See, e.g., Kaufmann, 985 F.2d at 892 n.3 (sale of automobile to undercover officer had effect" on interstate commerce) . ---------------------------------------- Page Break ---------------------------------------- 13 explained more than once that she did not mean she was looking for a black juror, but rather that she was looking for anyone who "had raised families in this city, people who have a stake in our community." She pointed out that many whites could have those characteristics, and she explicitly disavowed any racial preferences. See Gov't C.A. Br. 80-81. The prosecutor also provided specific and completely race- neutral reasons for each of her peremptory strikes, which were completely consistent with her description of the kind of juror the government preferred for this case. See Gov't C.A. Br. 81-84. Thus , there is no basis for any conclusion that this case involved a combination of permissible and impermissible reasons for the government's peremptory strikes. Far from ignoring the allegedly race-conscious reasons for the governments strikes, the courts below found that only race-neutral reasons had been offered, and they rejected petitioners' argument to the contrary. 7. This case ___________________(footnotes) 7 In support of their claim that the prosecutor's reasons for her strikes were race-conscious, petitioners rely on statements in which the prosecutor indicated that she was aware of the race of the petitioners and that she believed that petitioners counsel were seeking to retain as many white jurors as possible (Pet. 6, 13-14) . Contrary to petitioners' unsupported assertions, nothing in these remarks suggested that the prosecutor was exercising her peremptory strikes for race-conscious reasons. Petitioners also suggest in passing that the prosecutor's stated reasons for her strikes were not race-neutral because as a statistical matter few white potential jurors would have met the prosecutors criteria. Pet. 13 n.6. This Court, however, has specifically rejected the claim that a reason for a peremptory strike is race-conscious simply because it might apply disproportionately to one race or another. See Hernandez v. New York, 500 U.S. 352, 359-363 (1991) (opinion of Kennedy, J.); id. at 372-375 (opinion of O'Connor, J., concurring in the judgment). Although such disparate impact is relevant to the ultimate question ---------------------------------------- Page Break ---------------------------------------- therefore does not present any occasion to consider petitioners' claim that the courts of appeals take differing approaches to cases in which both race-neutral and race-conscious reasons are present. 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 KATHLEEN A. FELTON Attorney AUGUST 1997 ___________________(footnotes) of discriminatory intent, id. at 363 (opinion of Kennedy, J.) , 375 (opinion of O'Connor, J., concurring in the judgment) , the court of appeals in the present case correctly held that the trial court did not commit clear error by finding that the prosecutor's strikes were not intentionally discriminatory. Pet. App. 11.