No. 96-8925 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 LARRY DEAN BURNS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH 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 petitioner's claim that introduction of his prior con- viction was contrary to Old Chief v. United States, 117 S. Ct. 644 (1997) , is procedurally barred because he stipulated to the intro- duction of the nature of his prior conviction. (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-8925 LARRY DEANS BURNS, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The memorandum opinion of the court of appeals (Pet. App. 1-2) is not reported, but the judgment is noted at 107 F.3d 23 (Table). JURISDICTION The judgment of the court of appeals was entered on January 29, 1997. A petition for rehearing was denied on March 21, 199?. The petition for a writ of certiorari was filed on May 8, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . STATEMENT After a jury trial in the United States District Court for the Northern District of Florida, petitioner was convicted of knowingly possessing a firearm after having been convicted of a felony, in ---------------------------------------- Page Break ---------------------------------------- 2 violation of. 18 U.S.C. 922(g). He was sentenced to 360 months' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed. Pet. App. 1-2. 1. The evidence at trial, the sufficiency of which is not disputed, showed that petitioner, who had a prior felony convic- tion, stole a .22 caliber pistol from a Florida motel and later sold the pistol for $50. Gov't C.A. Br. 2-4. In September 1994, Richard Mathis was staying at a motel at a fishing camp in Steinhatchee, Florida. Mathis had with him a .22 caliber pistol, which he intended to use to shoot sharks. He kept the pistol in a bag, along with some clothes and cash. Petitioner entered Mathis's room during the evening of September 10; the next morning, the bag containing the handgun was missing from Mathis's room. Gov't C.A. Br. 2. Sherlene Beatty was living with petitioner at the time of the theft. Petitioner brought home the firearm and other items he had stolen from Mathis. Petitioner showed the handgun to several people. Gov't C.A. Br. 3. Eventually, Beatty hid the gun from petitioner. At the beginning of October 1994, petitioner needed money and wanted to sell the handgun. Beatty retrieved the gun for him. Beatty and petitioner drove to Wilmer Phipps's house, where petitioner sold the pistol for $50. Id. at 3-4. On October 3, 1994, Beatty informed his probation officer of petitioner's theft, possession, and sale of the handgun. Later that same day, petitioner and Beatty appeared at the probation officers' office. Beatty, who appeared to be frightened and upset, ---------------------------------------- Page Break ---------------------------------------- 3 recanted her statements about petitioner's possession of the hand- gun. Gov't C.A. Br. 4. Law enforcement officers later recovered the handgun from Phipps, to whom petitioner had sold it.Id. at 4. 2. At trial, petitioner stipulated to a prior conviction for burglary of a structure, one of his seven prior convictions. He also stipulated to admission of court records that reflected the nature of that burglary conviction. Gov't C.A. Br. 5, 13. In his opening statement and at trial, petitioner discussed the nature of his prior conviction in an attempt to evoke sympathy by falsely portraying himself as someone who had made a single minor mistake in his life. To that effect, petitioner argued that the only reason he was a felon, and thus barred from possessing firearms, was that years earlier he had broken into a building full of wood. Gov't C.A. Br. 14. 3. Petitioner changed his strategy on appeal. He argued then that the trial court had erroneously admitted evidence of his prior conviction. The court of appeals rejected that argument without discussion. Pet. App. 2. ARGUMENT Petitioner contends (Pet. 6-7) that the decision below con- flicts with Old Chief v. United States, 117 S. Ct. 644 (1997), in which the Court held that, in a Section 922(g) prosecution, a trial court must accept a defendant's offer to stipulate to the fact of a prior conviction, where that conviction was for an offense likely to cause unfair prejudice, and must thus enable the defendant to keep out of evidence the nature of his predicate conviction. Old ---------------------------------------- Page Break ---------------------------------------- 4 Chief is inapplicable here, however, because petitioner himself for tactical reasons assented to the introduction of the nature of his prior conviction. In United States v. Olano, 507 Us. 725 (1993), this Court distinguished between situations where an objection had merely been forfeited to which the plain error rule could apply and where waiver had occurred, which forecloses further review. The Court explained that "[d]eviation from a legal rule is `error' unless the rule has been waived." Id. at 732-733. Waiver occurs through the "intentional relinquishment or abandonment of a known right." Id at 733 (internal quotation marks and citation omitted) . When a right has been waived, there is no error and no basis for reversing a conviction on the ground that a legal rule was violated. Ibid. There can be no doubt that in the circumstances of this case petitioner waived any right to complain about the admission of the nature of his prior conviction. For tactical reasons, petitioner chose to put the nature of his prior conviction before the jury by stipulation, and to elaborate on that issue in his opening state- ment. Far from opposing admission of evidence of the nature of his prior offense, petitioner sought to make use of the very eviden- tiary fact whose admission he now challenges. Compare Old Chief, 117 S. Ct. at 651 n. 6 (citing with approval appellate decision that declined "to impose a stipulation on the Government" where "the trial court had found * * * that the evidence would quite likely come in anyway on other grounds") . ---------------------------------------- Page Break ---------------------------------------- 5 In those circumstances, petitioner clearly waived his right to complain of any error in revealing the nature of his prior convic- tion to the jury. 1. Petitioner is bound by his lawyer's determi- nation to discuss the nature of his prior burglary conviction before the jury. Taylor v. Illinois, 484 U.S. 400, 418 (1988) ("[T]he lawyer has and must have full authority to manage the conduct of the trial"; as a result, a defendant is bound by his lawyer's decisions); Wainwriqht v. Sykes, 433 U.S. 72, 92 (1977) (day-to-day conduct of the defense rests with defense counsel, not the defendant); cf. Jones v. Barnes, 463 U.S. 745, 751 (1983) (defendant has the right to determine whether to take an appeal, but the question of what issues to raise rests in the judgment of his lawyer). He cannot rely on Old Chief to attack that action here. 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 JULY 1997 ___________________(footnotes) 1. See also United States v. Dean, 76 F.3d 329, 333-334 (10th Cir. 1996), where the court held that the defendant was not en- titled to relief where he had stipulated to the fact and nature of four prior convictions, and his lawyer had discussed the nature and penalties for those convictions in his opening statement.