NORBERTO ACOSTA, PETITIONER V. UNITED STATES OF AMERICA No. 89-6134 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States OPINION BELOW The order of the court of appeals (Pet. App. A) is unreported. JURISDICTION The judgement of the court of appeals was entered on September 20, 1989. The petition for a writ of certiorari was filed on November 17, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether 18 U.S.C. 3013, which directs sentencing courts to impose monetary assessments on all defendants convicted of federal offenses, was enacted in violation of the Origination Clause of the Constitution, Art. I, Section 7, Cl. 1. 2. Whether the district court adequately instructed the jury on petitioner's defense of lack of knowledge. STATEMENT Following a jury trial in the United States District Court for the Southern District of New York, petitioner was convicted of distributing and possessing with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(A) (Count Three). /1/ The district court sentenced petitioner to a term of 121 months' imprisonment, to be followed by a five-year period of supervised release. The court also imposed a mandatory special assessment of $50. Gov't C.A. Br. 1-4. The court of appeals affirmed. Pet. App. A. 1. The evidence at trial showed that, beginning in August 1987, Juan Velez, a confidential informant working with the United States Customs Service, entered into a series of discussions with Jaime Martinez, Orlando Bethancourt, and Hector Martinez about the transfer of cocaine proceeds to Colombia and the purchase in Colombia of cocaine for eventual distribution in the United States. On February 18, 1988, Hector Martinez and Velez met and agreed that 400 kilograms of cocaine would be delivered to Velez in installments. Martinez said that the cocaine would be delivered in a taxicab by petitioner or petitioner's wife, Maria Valencia. /2/ At a subsequent meeting, Martinez revealed that both petitioner and Valencia had delivered cocaine for him in the past. Gov't C.A. Br. 4-8. Between February 23 and March 5, 1988, Velez had a series of telephone conversations with Hector Martinez and Orlando Bethancourt about the delivery of the cocaine. Martinez told Velez that he wanted Velez to meet petitioner, who would deliver the cocaine, so that Velez would recognize petitioner. Gov't C.A. Br. 9-10. On March 6, 1988, Velez met twice with Hector Martinez and petitioner at a diner in Manhattan. After the first meeting, Velez took petitioner across the street to a parking garage and showed him where the transfer of the cocaine should take place. At the second meeting, Martinez told Velez that he would give him a "thing" -- meaning one kilogram of cocaine -- and would call shortly afterwards to see how Velez like it. If it was satisfactory, another nine kilograms would be delivered. Gov't C.A. Br. 10. After the second meeting, Velez, petitioner, and Hector Martinez walked to petitioner's gypsy cab. While Martinez got into the cab on the passenger side, petitioner opened the trunk of the cab, took out a small duffel bag, and handed it to Velez. Petitioner and Martinez then drove away. The duffel bag contained a package wrapped in brown masking tape, which in turn contained 996.9 grams of 84 percent pure cocaine. Gov't C.A. Br. 10. Approximately 30 minutes later, Hector Martinez called Velez and asked if everything was all right. Velez said that the cocaine was great. Martinez said that he would send petitioner to 43rd Street and 11th Avenue in Manhattan with the rest of the ten kilogram shipment, and told Velez to give petitioner the money for the cocaine. Gov't C.A. Br. 11. Shortly after that conversation, petitioner arrived at 43rd Street and 11th Avenue and met Velez. After Velez and petitioner walked to petitioner's car, petitioner opened the trunk and showed a tape-wrapped gray box to Velez. Velez picked up the box, then told petitioner to wait beside the car because he was going to pick up "the 155"; a $155,000 purchase price had previously been established for the ten kilograms of cocaine. As Velez began to walk away, he asked petitioner if the box contained "nueve" or "nine." Petitioner replied, "Si, nueve esta bien," that is, "Yeah, nine, it's allright." /3/ Velez signalled to surveillance agents, and petitioner was arrested. The gray box contained nine tapewrapped packages, which in turn contained 9242 grams of 84 percent pure cocaine. Shortly after petitioner's arrest, Hector Martinez was arrested at petitioner's house. Jaime Martinez was also arrested on March 6, 1988. Gov't C.A. Br. 11. 2. During the charge conference in the district court, petitioner's counsel submitted a two-paragraph charge request concerning petitioner's knowledge. Analyzing the proposed charge, the district court noted that the first paragraph "essentially * * * marshall(ed) * * * the evidence in the context of * * * (petitioner's) claim," and that the second paragraph restated the government's burden to prove knowledge and thus duplicated language already included in the court's proposed charge. Petitioner's counsel then asked the court to give only the second paragraph; the court ultimately declined to use petitioner's proposed language, but it instructed the jury that the government was required to prove beyond a reasonable doubt that the defendants knew that they possessed narcotics. Gov't C.A. Br. 29-31. /4/ During closing arguments, petitioner's counsel told the jury that the entire case against petitioner reduced to the "very narrow" question of whether petitioner knew that the box he delivered to Velez contained cocaine. Counsel repeatedly argued to the jury that the government had not proved such knowledge, and invited the jury to listen to the tape of the conversation between petitioner and Velez -- where petitioner said, "Si, nueve esta bien" -- during its deliberations. Counsel contended that if the jury listened to the tape and could not hear petitioner manifest, by saying "nueve," his knowledge that the box contained nine kilograms of cocaine, the jury should conclude that the government was prosecuting an innocent man. Gov't C.A. Br. 32-33. After the jury began deliberating, it sent a request to hear the "tape of (the) March 6 conversation between (petitioner) and (Velez) concerning the word nine." The tape was played for the jury. Approximately 45 minutes later, the jury asked to hear the tape again and to have the "ending concerning the word nine" repeated. The designated portion of the tape was played for the jury three times, and the jury then returned its verdict. Gov't C.A. Br. 33. 3. The court of appeals affirmed petitioner's conviction and the imposition of the special assessment. Observing that "(t)he charge contained sufficient instructions on the requirement of the element of knowledge, and the jury's requests made during deliberation indicate that it properly considered this element," it concluded that "(t)he trial court's refusal to give a separate charge on the defense of lack of knowledge did not deny (petitioner) his right to a fair trial." Pet. App. A2. Relying on its recent decision in United States v. Griffin, 884 F.2d 655 (2d Cir. 1989), petition for cert. pending, No. 89-5493, which upheld the constitutionality of 18 U.S.C. 3013, it also rejected petitioner's constitutional objection to the special assessment. Ibid. ARGUMENT 1. Petitioner initially contends that the special assessment staute, 18 U.S.C. 3013, is a bill for raising revenue that originated in the Senate, in violation of the Origination Clause of the United States Constitution, Art. 1, Section 7, Cl. 1. Although we believe that the court of appeals correctly rejected petitioner's claim, we acknowledge that this case raises precisely the same issue that is now before the Court in United States v. Munoz-Flores, cert. granted, No. 88-1932 (Oct. 2, 1989). Accordingly, as to this issue, the Court should hold the petition in this case pending the decision in Munoz-Flores. 2. Petitioner further contends (Pet. 5-6) that the district court erred when it refused to give the jury a separate charge on petitioner's defense of lack of knowledge. This claim is without merit, and does not warrant review by this Court. As the court of appeals correctly concluded (Pet. App. A2), the district court's instructions were sufficient to inform the jury that in order to find petitioner guilty it must first find that he knew he possessed narcotics. As the court of appeals also concluded (ibid.), the sufficiency of these instructions was confirmed during the jury's deliberations when its requests to hear the taped conversation between Velez and petitioner showed clearly that it was considering petitoner's alleged lack of knowledge as a defense to the possession charges. Contrary to petitioner's contention, this Court's decision in Mathews v. United States, 108 S. Ct. 883 (1988), does not require a different result. Mathews states that "(a)s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists sufficient evidence for a reasonable jury to find in his favor." Id. at 887. In the present case, where petitioner's defense was lack of knowledge, the district court's instructions on the knowledge required to commit the possession offense gave petitioner every benefit to which he was entitled under Mathews. Pet. App. A2. Unlike the defendant in Mathews, petitioner received an instruction that adequately put his defense before the jury. Indeed, the instruction given by the district court was more detailed than standard federal jury instructions on knowledge as an element of the offense. /5/ The result below is thus entirely consistent with Mathews. Petitioner's assertion (Pet. 5-6) that the decision of the court of appeals conflicts with United States v. Durham, 825 F.2d 716 (2d Cir. 1987) similarly does not warrant review. As an initial matter, the claim of an intra-Circuit conflict does not provide a basis for this Court's review. Wisniewski v. United States, 353 U.S. 901, 901-902 (1957). In any event, the lower court's decision in this case does not conflict with Durham. In Durham, the court of appeals found that the district court's instruction on specific intent was inadequate, and empasized that the defendant was entitled to "have instructions presented which adequately apprised the jury of the elements of the crime and (his) defense." 825 F.2d at 719. Here, the court of appeals found that "(t)he charge contained sufficient instructions on the requirement of the element of knowledge" (Pet. App. A2); the Durham court's requirement thus was satisfied. Unlike Durham, moreover, where "the jury might easily have been confused as to what constituted a valid legal defense" (825 F.2d at 720), the jury's repeated requests for, and review of, the taped conversation between Velez and petitioner "indicate that it properly considered (the) element (of knowledge)" (Pet. App. A2) in its deliberations. Petitioner's claim of an intra-Circuit conflict is therefore erroneous. /6/ CONCLUSION As to petitioner's claim that 18 U.S.C. 3013 violates the Origination Clause of the United States Constitution, Art. 1, Section 7, Cl. 1, the petition for a writ of certiorari should be held pending the Court's decision in United States v. Munoz-Flores, cert. granted, No. 88-1932 (Oct. 2, 1989), and disposed of in light of that decision. As to the second issue, 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 M. GANNON Attorney JANUARY 1990 /1/ Petitioner was acquitted of conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine (Count One), and of a separate charge of distributing and possessing with intent to distribute more than 500 grams of cocaine (Count Two). The jury found co-defendant Hector Mario Martinez guilty on all three counts, and found co-defendant Jaime Martinez, who became a fugitive shortly before trial, guilty in absentia on Count One. Orlando Bethancourt, who was also charged in the indictment, was never arrested and remains a fugitive. Gov't C.A. Br. 2. /2/ Valencia was employed as a passport photographer in the same travel agency where Jaime Martinez worked. Gov't C.A. Br. 7 n.*. /3/ This conversation was surreptitiously taped by Velez. Gov't C.A. Br. 33. /4/ The court instructed the jury: If you find that a defendant possessed narcotics, you must then determine whether the defendant knew that he possessed narcotics. The Government must prove beyond a reasonable doubt that the defendant knew that he possessed narcotics and that his possession was not due to carelessness, negligence or mistake. If you find that the defendant did not know what he possessed was in fact narcotics, then you must find the defendant not guilty. Although the Government must prove that the defendant knew that he possessed narcotics, the Government does not have to prove that the defendant knew the exact nature of the drugs in his possession. It is enough that the Government proves that the defendant knew that he possessed some kind of narcotics. Gov't C.A. Br. 30-31. After the instruction was given, petitioner objected to the knowledge element with respect to the Count One conspiracy charge, but he did not object to the charge with respect to Count Three, on which he was convicted. Id. at 30. /5/ See, e.g., E. Devitt and C. Blackmar, Federal Jury Practice and Instructions, Section 14.08, at 390 (3d Ed. 1977). /6/ Petitioner's contention that his case is like Durham because an entrapment instruction was given for Hector Martinez (Pet. 5-6) is similarly unavailing; in this case, the giving of the entrapment instruction in no way detracted from the clarity and specificity of the court's instruction on knowledge. See note 4, supra.