No. 97-5727 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 VICTOR LUGO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS BRIEF FOR-THE UNITED STATES IN OPPOSITION SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEBORAH WATSON Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether a jury instruction that an aider and abettor is legally responsible for the acts of others "that are the natural and probable consequence" of a criminal venture creates an impermissible presumption of intent in violation of Sandstrom v. Montana, 442 U.S. 510 (1979). (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1997 No. 97-5727 VICTOR LUGO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF APPEALS BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. la-4a) is not reported. JURISDICTION The judgment of the court of appeals was entered on October 7, 1996. A petition for rehearing was denied on May 29, 1997. Pet. App. 5. The petition for a writ -of certiorari was filed on August 26, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the Superior Court of the District of Columbia, petitioner was convicted of second-degree murder ---------------------------------------- Page Break ---------------------------------------- 2 while armed, in violation of D.C. Code 22-2403.1 He was sentenced to 15 years' to life imprisonment. The Court of Appeals for the District of Columbia affirmed. Pet. App. la-4a. 1. Petitioner sold crack cocaine in the 3000 block of 15th Street, N.W., in Washington, D.C. On July 8 1992, he flagged down a jeep driven by Juan Romero, who also sold drugs on 15th Street, and requested a ride to Southeast Washington. Petitioner said that he was going to pick up "one of his boys" and complained that there was a "new guy" on 15th Street who had sought to displace his drug business. Petitioner and Romero picked up Derek Proctor, one of petitioner's associates, and returned to the 15th Street neighborhood. When petitioner told Proctor that the "new guy" had told him that they could not sell drugs on 15th Street, Proctor responded "[W]e'll just go back and business as usual * * * if he starts something, he'll get his." Gov't C.A. Br. 2-4. Later that afternoon, petitioner encountered Don Andre Johnson, the " new guy. " Petitioner asked Johnson what he was "doing hustling on this block," and smacked him with what appeared to be a gun. Proctor then walked up, and the three men began arguing. Petitioner brushed Proctor's shoulder and ___________________(footnotes) 1 Petitioner was indicted on a charge of first-degree premeditated murder while armed. The jury, which was instructed on that charge-as well as on the lesser-included offense of second-degree murder while armed, found him guilty of the latter offense. The jury acquitted petitioner of possession of a firearm during the commission of a crime of violence and of carrying a pistol without a license. Co-defendant Derek Proctor was tried separately from petitioner and was convicted of first- degree murder while armed. ---------------------------------------- Page Break ---------------------------------------- 3 instructed him to "do it. " Proctor pulled a pistol from his waistband, pointed it at Johnson's head, and shot him three times. Petitioner shouted, "let's go, " and the two men ran down the block and into an alley. As Proctor jumped over a fence, he dropped his gun. Petitioner picked it up and told Proctor to keep running. Gov't C.A. Br. 4-7. 2. Over petitioner's objection, the trial court gave the following instruction to the jury: [Y]ou may find [petitioner] guilty of the crime charged in the indictment without finding that he personally committed each of the acts that make up the crime. Any person who in some way procures, commands, or intentionally participates in the commission of a crime is said to aid and abet the principal offender. That's the legal term, aid and abet. Such person, therefore, is as guilty of the crime as he would be if he had personally committed each of the acts that make up the crime. Now , to find that [petitioner] aided and abetted in committing a crime, you must find that [petitioner] knowingly associated himself with the criminal venture, that he participated in that criminal venture as something he wishe[d] to bring about, and that he intended by his actions to make it succeed. [I]t is not necessary that [petitioner] have had the same intent that the principal offender had when the crime was committed, or that he have intended to commit the particular crime committed by the principal offender. An aider and abettor is legally responsible for the acts of other persons that are the natural and probable consequences of the criminal venture in which he intentionally participates. And by natural and ` probable consequences, I mean those consequences which were reasonably foreseeable. Gov't C.A. Br.12 (emphasis added) . Petitioner objected to that instruction on the ground that ---------------------------------------- Page Break ---------------------------------------- 4 it did not require the jury to find either that he had the same specific intent as the principal to commit the murder or that he knew that the principal had such an intent and assisted the principal in carrying it out. Petitioner asked the court to instruct the jury that, to find him guilty as an aider and abettor, it had to find that, before the shooting, he intended have Proctor kill Johnson. The court declined to give the requested instruction. Gov't C.A. Br. 8-9. 3. On appeal, petitioner argued, inter alia, that the instruction was improper in that it failed to say that an aider and abettor must have the same mens rea as the principal. Petitioner also argued, for the first time, that the instruction unconstitutionally required the jury to presume his intent from the "natural and probable" consequences of his actions. The court of appeals rejected those claims. Relying on settled District of Columbia law, the court held that the government was not required to prove either that petitioner had the same mens rea as the principal or that he intended the particular crime committed by the principal. Rather, the court held, an aider and abettor is responsible for the acts of others that are the natural and probable (i.e., reasonably foreseeable) consequences of the criminal venture in which he intentionally participates. Pet. App. 2a. Here, the court held, the evidence was sufficient to establish not only that petitioner participated in and associated himself with Johnson's homicide, but also that he was the actual instigator of the crime. Pet. App. 3a. ---------------------------------------- Page Break ---------------------------------------- 5 The court rejected petitioner's argument that the reference in the instructions to the "natural and probable" consequences of the criminal scheme constituted an impermissible presumption of criminal intent in" violation of the constitutional principles recognized in Sandstrom v. Montana, 442 U.S. 510 (1979). "Taken as a whole, the jury instructions clearly required the government to prove, beyond a reasonable doubt, [petitioner's] intent to participate in the criminal venture as an accessory. The jury was never instructed that it should presume intent from the evidence presented. Rather, the jury was instructed to accept or reject, as-they saw fit, any evidence offered going to a common design or plan, or evidence tending to show the natural and probable or foreseeable consequences of certain acts." Pet. App. 4a; see also id. at 2a n.2.. ARGUMENT Petitioner's Sandstrom claim presupposes that, in the District of Columbia, "the elements of a charged offense are the same for the accomplice as for the principal" and that the government was therefore required to prove that petitioner had "the minimum mens rea of second-degree murder." Pet. 8. From those premises, petitioner concludes that the trial court unconstitutionally permitted the jury to presume his mens rea from the "natural and probable consequences" of the criminal scheme (i.e to threaten Johnson) in which he participated. Pet. 8-9. That claim lacks merit because its premises misread substantive District of Columbia law. As the court of appeals ---------------------------------------- Page Break ---------------------------------------- 6 emphasized, District of Columbia law does not require the government "to prove that the defendant had the same mens rea as the principal offender at the time of the offense, or that the aider and abettor intended the particular crime committed by the principal. Rather, * * * as the trial judge correctly instructed [petitioner's] jury, * * * '[a]n aider and abettor is legally responsible for the acts of other persons that are the natural and probable consequences of the criminal venture in which he intentionally participates.'" Pet. App . 2 (citations, internal ellipsis, and some internal quotations omitted) . The court of appeals thus reaffirmed that, under District of Columbia law, an aider and abettor is liable for the' "natural and probable consequences" of his criminal scheme whether or not he specifically intends the consequences themselves. Pet. "App. 2a- 4a. For that reason, petitioner's Sandstrom claim is without merit. Because intent to cause the specific consequences is not an element of accomplice liability, the trial court's instruction on "natural and probable consequences, " unlike the instruction at issue in Sandstrom, see 442 U.S. at 521-524, created no burden- shifting presumption concerning any element of the offense. Petitioner's reliance on cases arising from jurisdictions in which the substantive law imposes a more particularized mens rea requirement on the prosecution (see, e.g, pet. 7 n.4) is therefore misplaced. 2 ___________________(footnotes) 2 Petitioner claims that, under federal law, see 18 U.S.C. 2, "the accomplice [must] have a `purposive attitude' toward a charged offense by specifically intending the harm, or acting ---------------------------------------- Page Break ---------------------------------------- 7 Petitioner has not sought certiorari to challenge the court of appeals' longstanding interpretation of District of Columbia law. See Pet. i (question presented) ; see generally Pet. App. 2a (citing District of Columbia precedent). Even if petitioner had challenged that interpretation, it is "the practice of th[is] Court to defer to the decisions of the courts of the District of Columbia on matters of exclusively local concern. " Whalen v. United States, 445 U.S. 684, 687 (1980) ; see also Pernell v. Southall Realty, 416 U.S. 363", 366-368(1974). Moreover, petitioner does not appear to challenge the constitutionality of the traditional substantive rule (see generally 2 W. LaFave & A. Scott, Criminal Law 6.8(b), at 157-158 (1986) ) rendering an aider and abettor liable for the reasonably foreseeable acts of a principal whether or nor the aider and abettor" specifically intended those acts. See generally Martin v. Ohio, 480 U.S. 228 (1987) (discussing State's broad authority to define elements of offense); see also Montana v. Egelhoff, .116 S. Ct. 2013, 2022 2023 (1996) (plurality opinion). Instead, petitioner bases his argument on the incorrect premise that the District of Columbia does not follow that traditional rule See Pet. i (question presented) . Finally, even if petitioner's Sandstrom claim had merit, this case would be an inappropriate vehicle for addressing it with knowledge that the principal intends the harm. " Pet. 5-6. Even if federal law contained the requirement that petitioner attributes to it, however, the court of appeals could not have been clearer in holding that District of Columbia law does not I impose such a requirement, See Pet. App. 2a-3a. -------------------------------------- Page Break ---------------------------------------- 8 because petitioner did not adequately preserve that claim at trial. Although petitioner objected to the district court's instruction on aiding-and-abetting liability, he argued only that the instruction did not require the jury to find that he had intended to commit the murder or that he knew that Proctor had such an intent; he did not argue at trial that the instruction created an unconstitutional presumption or that it took an essential element from the jury's consideration in violation of the Fifth and Sixth Amendments. See Gov't C.A. Br. at 38-39. For that reason, even though the court of appeals did not address the proper standard of review, petitioner's Sandstrom claim is appropriately reviewed only for plain error: See D.C. Super. Ct. Crim. R. 52(b); see generally Johnson v. United States, 117 S. ct. 1544 (1997). Because petitioner was present at the scene of the murder and ordered Proctor to "do it," and because the jury's verdict therefore almost certainly rested on a finding that petitioner in fact intended to have Johnson murdered, petitioner's Sandstrom claim, even if it were plausible on its merits, would not satisfy the stringent plain-error standard. See Johnson, 117 s. Ct. at 1550; see also Foreman v. United States, 633 a.2d 792, 795-797 (D.C. 1993). ---------------------------------------- Page Break ---------------------------------------- 9 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEBORAH WATSON Attorney OCTOBER 1997