WOODROW WILSON MILES, PETITIONER V. UNITED STATES OF AMERICA No. 89-7858 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 Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A7) is not reported. JURISDICTION The judgment of the court of appeals was entered on February 7, 1990. A petition for rehearing was denied on March 21, 1990. Pet. App. A9. The petition for a writ of certiorari was filed on June 19, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's conviction for conspiracy to transfer firearms unlawfully to a resident of another state, in violation of 18 U.S.C. 371, violated Wharton's Rule. 2. Whether there was sufficient evidence to support petitioner's convictions for transferring firearms unlawfully to a resident of another state, in violation of 18 U.S.C. 922(a)(5), and for making false material statements to a firearms dealer, in violation of 18 U.S.C. 922(a)(6). 3. Whether the district court properly applied the Sentencing Guidelines in sentencing petitioner on the conspiracy and several substantive convictions. STATEMENT After a jury trial in the United States District Court for the Eastern District of Virginia, petitioner was convicted on one count of conspiracy to transfer firearms unlawfully to a resident of another State, in violation of 18 U.S.C. 371, five counts of transferringg firearms unlawfully to a resident of another State, in violation of 18 U.S.C. 922(a)(5), eight counts of making false material statements to a firearms dealer, in violation of 18 U.S.C. 922(a)(6), five counts of unlawfully delivering firearms to an interstate carrier for interstate transportation, in violation of 18 U.S.C. 922(e), and seven counts of using a fraudulently obtained social security number, in violation of 42 U.S.C. 408(g)(1). /1/ He was sentenced to a total term of 29 years and three months' imprisonment, to be followed by concurrent terms of five years' probation and 36 months' supervised release. Petitioner was also ordered to pay a $7,500 fine. C.A. App. 271-276. The court of appeals affirmed. 1. The evidence at trial showed that petitioner orchestrated and carried out a scheme to buy firearms in Virginia, transport them to New York, and then distribute the weapons to local narcotics traffickers. Petitioner, who lived in Brooklyn, New York, used a false social security number to obtain a Virginia driver's license under the alias "Wilson Miles." In connection with this license application, petitioner falsely represented that he lived at a Virginia address belonging to his brother, Jerry Miles. Petitioner obtained a second Virginia driver's license in his real name. On this application, petitioner falsely claimed that he lived at a Virginia address belonging to his brother's girlfriend, Harriet Farris. Pet. App. A2; Gov't C.A. Br. 2-3. During the spring and summer of 1987, petitioner bought 28 guns from Dance's Sporting Goods, a federally licensed firearms dealer in Petersburg, Virginia. Petitioner used his Virginia driver's licenses to show proof of state residence; for each purchase, he signed a federal firearms transactions record that contained representations that he was a state resident. Petitioner later recruited his brother, Farris, and Nathanial Collins to buy guns in Virginia for him. From July to January 1988, petitioner, who remained in Brooklyn, wired over $42,000 earmarked for gun purchases to his brother in Virginia. Jerry bought a total of 101 guns for petitioner and shipped them by Greyhound bus to petitioner. During this period, Farris and Collins used the same method to buy another 41 guns for petitioner. For each firearms transaction, Jerry, Farris, and Collins falsely represented that he or she would be the owner of the gun. Pet. App. A2-A3; Gov't C.A. Br. 4-6. Petitioner's scheme collapsed in January 1988. On January 8, federal agents in Virginia intercepted a package of guns Jerry Miles had shipped to petitioner. The agents decided to make a "controlled delivery." Several days later, they arrested one of petitioner's accomplices when she picked up the package at a New York bus station. When petitioner drove up to the scene, the agents arrested him. During questioning, petitioner fully confessed to the scheme. He admitted that he lived in Brooklyn, that he had travelled to Virginia to buy guns, and that he had recruited Jerry, Farris, and Collins to buy guns for him in Virginia that were shipped to New York. Petitioner also explained that he had bought the guns for local narcotics traffickers. Gov't C.A. Br. 6-8; C.A. App. 62. 2. At sentencing, the probation officer recommended a sentence of 41-51 months' imprisonment under the Sentencing Guidelines for the eight counts that were subject to the Sentencing Guidelines. /2/ The probation officer determined that petitioner's offenses had a "total offense level" of 22: an adjusted level of 17 for the conspiracy count, the highest such level of the counts that were subject to the Guidelines, see Sentencing Guidelines Section 3D1.3, /3/ and a five-level increase for the substantive offenses, see Sentencing Guidelines Section 3D1.4. C.A. App. 532-541. Petitioner did not challenge the probation officer's recommendation. See Pet. App. A15, A21-A25. Accordingly, the court imposed a total term of 51 months' imprisonment on those counts subject to the Sentencing Guidelines. 3. The court of appeals affirmed. Pet. App. A1-A7. In the court of appeals, petitioner contended that his conviction for conspiracy to transfer firearms unlawfully to a resident of another State violated Wharton's Rule. /4/ Since petitioner did not raise that issue before the trial court, the court of appeals declined to consider it. Pet. App. A4. In any event, the court concluded that that claim was meritless. Ibid. (citing Iannelli v. United States, 420 U.S. 770 (1975)). /5/ Petitioner also argued that the government had not presented sufficient evidence to support his convictions for transferring firearms unlawfully to a resident of another state and for making false material statements to a firearms dealer. After "(r)eviewing the record in the light most favorable to the government," the court summarily rejected that argument. Pet. App. A5 & n.4 (noting that petitioner was convicted of aiding and abetting his brother, a resident of Virginia, in transferring firearms to petitioner, a resident of New York). Finally, petitioner contended that the district court had misapplied the Sentencing Guidelines in sentencing him on the conspiracy and several substantive convictions. /6/ Turning to petitioner's claim that only those guns bought after the effective date of the Guidelines should be considered for purposes of the five-level increase under Sentencing Guidlines Section 2K2.3(b)(1)(E), the court of appeals concluded that "(s)ince it was appropriate to apply the Guidelines to the conspiracy count, * * * it was appropriate to count all weapons involved in the conspiracy." Pet. App. A6. The court next rejected petitioner's challenge to the four-level increase under Sentencing Guidelines Section 3B1.1(a), concluding that the "record supports a finding that (petitioner) was the organizer of the arms transfer activity, and that the activity was sufficient to be considered 'extensive' as defined by Section 3B1.1 Application Note 2." Pet. App. A6. The court also rejected petitioner's claim that "it was error not to group his conspiracy count with the seven other Guidelines counts (under Sentencing Guidelines Section 3D1.2(c))." Pet. App. A6. Since the substantive counts, i.e., unlawfully shipping firearms and making false statements to firearms dealers, "were not necessary to implementation of a conspiracy to transfer firearms," the court determined that grouping was not warranted. Id. at A6-A7. /7/ ARGUMENT 1. Petitioner contends (Pet. 5-8) that his conviction for conspiracy to transfer firearms unlawfully to a resident of another state violated Wharton's Rule. Even assuming petitioner has adequately preserved the issue, see Pet. App. A4; United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977), that claim warrants no further review. As this Court has explained: The classic Wharton's Rule offenses -- adultery, incest, bigamy, duelling -- are crimes that are characterized by the general congruence of the agreement and the complete substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, * * * and the immediate consequences of the crime rest on the parties themselves rather than on society at large. * * * Finally, the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert. Iannelli v. United States, 420 U.S. at 782-783. Moreover, the Court has made plain that "Wharton's Rule applies only to offenses that require concerted criminal activity," id. at 785, and that in order to make that determination, a court must "focus() on the statutory requirements of the substantive offense rather than the evidence offered to prove those elements at trial," id. at 780; see United States v. Holte, 236 U.S. 140, 145 (1915). Wharton's Rule does not bar petitioner's conspiracy conviction because the substantive offense of transferring firearms unlawfully to a resident of another state, in violation of 18 U.S.C. 922(a)(5), does not "require concerted criminal activity." Iannelli v. United States, 420 U.S. at 785. Section 922(a)(5) makes criminally liable an individual who "transfer(s) * * * any firearms to any person * * * who the transferror knows or had reasonable cause to believe resides in any State other than that in which the transferror resides * * *." 18 U.S.C. 922(a)(5). By its terms, the statute requires that only the transferror have the requisite specific knowledge and intent. See United States v. Spitler, 800 F.2d 1267, 1276-1277 n.5 (4th Cir. 1986). /8/ 2. Petitioner also contends (Pet. 8-11) that there was insufficient evidence to support his convictions for transferring firearms unlawfully to a resident of another state, in violation of 18 U.S.C. 922(a)(5), and for making false material statements to a firearms dealer, in violation of 18 U.S.C. 922(a)(6). With respect to the firearms transfer counts, the record plainly showed that petitioner lived in Brooklyn, New York, that his brother lived in Virginia, that each was well aware of those facts, and that despite this, petitioner arranged for his brother routinely to transfer guns to him across state lines. There was thus ample evidence to support his conviction for aiding and abetting his brother in violation of Section 922(a)(5). /9/ With respect to the false statement counts, the record showed that petitioner signed federal firearms transaction records which represented that he was a Virginia resident and that petitioner freely admitted to signing those forms. On this record, petitioner's fact-specific challenges are therefore groundless. 3. Petitioner also contends (Pet. 11-14) that the district court misapplied the Sentencing Guidelines in sentencing him to 51 months' imprisonment on the conspiracy and several substantive convictions. First, petitioner asserts (Pet. 11-12) that only those guns bought after the effective date of the Guidelines should have been considered for purposes of the five-level increase under Sentencing Guidelines Section 2K2.3(b)(1)(E). The Sentencing Guidelines fully apply to crimes, such as petitioner's conspiracy offense, that "straddle" the effective date of the Guidelines. See, e.g., United States v. Tharp, 892 F.2d 691, 693-695 (8th Cir. 1989); United States v. Story, 891 F.2d 988, 991-996 (2d Cir. 1989); United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, 109 S. Ct. 3172 (1989). For that reason, the district court properly took into account all the firearms involved in petitioner's particular scheme. Second, petitioner claims (Pet. 12-13) that his conduct did not warrant the adjustment under Sentencing Guidelines Section 3B1.1(a) for organizing or leading "extensive" criminal activity. That claim is meritless since the record showed that petitioner organized and recruited at least five persons to participate in a firearms trafficking scheme involving more than 150 guns, which were admittedly destined for narcotics traffickers. Third, petitioner argues (Pet. 13-14) that the district court should have grouped the conspiracy and substantive offenses under Sentencing Guidelines Section 3D1.2(c), which provides for such grouping "(w)hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustments to, the guideline applicable to another of the counts." As the court of appeals explained, however, since the substantive counts, i.e., unlawfully shipping firearms and making false statements to firearms dealers, "were not necessary to implementation of a conspiracy to transfer firearms," Pet. App. A6-A7, and involved separate and distinct conduct, grouping under the Guidelines would have been inappropriate. /10/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS E. BOOTH Attorney AUGUST 1990 /1/ Before trial, petitioner pleaded guilty to the counts charging the unlawful use of a fraudulently obtained social security number. Pet. App. A3. /2/ The Sentencing Guidelines applied to the conspiracy count, five counts charging violations of Section 922(e), and two of the counts charging violations of Section 922(a)(6). All the remaining counts charged offenses that occurred before the effective date of the Sentencing Reform Act (November 1, 1987). See C.A. App. 530-531. /3/ The probation officer determined that petitioner's conspiracy offense had an adjusted offense level of 17: a base level of six under Sentencing Guidelines Section 2X1.1(a), a five-level increase under Sentencing Guidelines Section 2K2.3(b)(1)(E) for the number of firearms involved (169), a two-level increase under Sentencing Guidelines Section 2K2.3(b)(2)(A) for petitioner's having reason to believe that the purchaser was prohibited from owning the firearms, and a four-level increase under Sentencing Guidelines Section 3B1.1(a) for petitioner's having organized criminal activity that involved five or more participants or was otherwise extensive. C.A. App. 532. /4/ As the court explained, "Wharton's Rule states that when a crime necessarily requires participation of two persons for its commission, e.g., adultery, then the agreement of two persons to commit the crime can not be prosecuted as a conspiracy." Pet. App. A3-A4 n.1. /5/ For similar reasons, the court also rejected petitioner's assertion that he could not be subjected to consecutive sentences for the conspiracy and substantive convictions. Pet. App. A4-A5. /6/ The court of appeals noted that petitioner had not raised his claims before the district court and thus had not preserved them for further review. The court of appeals addressed those claims, however, reasoning that "because the Guidelines are a relatively mechanical set of rules, incorrect application of those rules would be plain error which this court can review for the first time on appeal." Pet. App. A5. /7/ Petitioner also challenged the two-level increase under Sentencing Guidelines Section 2K2.3(b)(2)(A) for his having reason to believe that the purchaser was prohibited from owning the firearms. The record showed that in the district court petitioner "conditionally objected to application of this section and then withdrew his objection." Pet. App. A7. The court of appeals therefore refused to "review an issue which (petitioner) has knowingly and specifically declined to argue to the trial court." Ibid. /8/ For that reason as well, petitioner errs in suggesting (Pet. 5-6) that Wharton's Rule bars the conspiracy conviction based on the substantive convictions for unlawfully delivering firearms to an interstate carrier for interstate transportation, in violation of 18 U.S.C. 922(e). Petitioner's citation (Pet. 5, 8) to Grady v. Corbin, 110 S. Ct. 2084 (1990), is beside the point since this case does not involve any claim regarding successive prosecutions under the Double Jeopardy Clause. /9/ Petitioner asserts that the district court erred by not instructing "the jury that it must acquit unless it finds that the transferror or transferee are actually residents of different states." Pet. 9. Petitioner did not raise this objection at trial, and thus his claim is reviewable only for plain error. Here, the district court did instruct the jury that an element of the offense was "that the transferror knew or had reasonable cause to believe that the recipient of the firearm resided in a state other than the one in which the transferror resided." Pet. App. A10. This instruction, in light of the fact that it was undisputed that petitioner and his brother lived in different States, renders petitioner's claim meritless. /10/ Finally, petitioner challenges (Pet. 12) the two-level increase under Sentencing Guidelines Section 2K2.3(b)(2)(A) for his having reason to believe that the purchaser was prohibited from owning the firearms. Since that issue was not properly before the court of appeals, see note 7, supra, further review would be inappropriate, particularly since that Guideline has been deleted and replaced by Sentencing Guidelines Sections 2K2.2(c)(1) and 2K2.3(a), effective November 1, 1989.