RUBEN ROCHA AND JOSE SANTOSE GALLEGOS, PETITIONERS V. UNITED STATES
OF AMERICA

   No. 90-7198

   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 Fifth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A219-A245) is
reported at 916 F.2d 219.

                             JURISDICTION

   The judgment of the court of appeals was entered on October 22,
1990.  A petition for rehearing was denied on November 21, 1990 (Pet.
App. C).  The petition for a writ of certiorari was filed on February
19, 1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether a co-defendant's mid-trial threat to kill a government
witness was so prejudicial as to deny petitioners their right to a
fair trial.

   2. Whether the prosecutor's rebuttal argument prejudiced
petitioners' right to a fair trial.

   3. Whether the district court erred in enhancing petitioners' base
offense levels six levels under Section 2A4.1(b)(1) of the Sentencing
Guidelines for committing the offense of kidnapping when a ransom
demand was made, and four levels under Section 2A4.1(b)(5) for
committing the offense of kidnapping when the victim was kidnapped in
order to facilitate the commission of another offense (extortion).

                               STATEMENT

   Following a jury trial in the United States District Court for the
Northern District of Texas, petitioners were convicted of kidnapping,
in violation of 18 U.S.C. 1201(a)(1) (Count 2);  conspiracy to commit
extortion, in violation of 18 U.S.C. 1951 (Count 3);  extortion, in
violation of 18 U.S.C. 1951 (Count 4);  and carrying or using a
firearm during the commission of a crime of violence, in violation of
18 U.S.C. 924(c) (Counts 7 and 9).  In addition, petitioner Gallegos
was convicted of conspiracy to kidnap, in violation of 18 U.S.C.
1201(c) (Count 1), and possession of a firearm by a convicted felon,
in violation of 18 U.S.C. 922(g)(1).  /1/ Petitioner Rocha was
sentenced to 295 months' imprisonment, and petitioner Gallegos to 270
months' imprisonment.  The court of appeals affirmed.  Pet. App.
A219-A245.

   1. In November 1988, Thomas Padilla delivered 30 kilos of cocaine
to Tony Rodriguez in Michigan, who agreed to pay Padilla for the
cocaine from the proceeds of the cocaine sales.  Rodriguez was unable
to sell the cocaine at a price sufficient to cover the amount he owed
to Padilla.  In order to avoid Padilla, Rodriguez disappeared.  In
efforts to locate Rodriguez, Padilla made repeated telephone calls and
visits to Bernice English, Rodriguez's sister.  At one point Padilla
threatened to hold her until Rodriguez paid the debt.  Frightened for
her safety, English moved herself and her three younger children to
California in January 1989.  Her oldest child, 17-year old Michael
Baker, remained in Michigan with his grandfather in order to complete
his senior year of high school.  Pet. App. A224.

   On March 16, 1989, Baker drove to his old home in River Rouge,
Michigan, in order to collect the mail.  Padilla and Johnny Hinojosa
arrived at the house, and Padilla demanded to know Rodriguez's
whereabouts.  When Baker stated that he did not know, Padilla and
Hinojosa abducted him.  After retrieving some clothing and a gun,
Padilla and Hinojosa drove Baker to Texas.  En route, Padilla
telephoned English in California and advised her that he had captured
her son, but would release him unharmed if Rodriguez contacted him.
When advised of these events, Rodriguez went to his sister's home to
await a call from Padilla.  When Padilla telephoned, he advised
Rodriguez to fly to Texas and bring the money for the cocaine,
threatening to kill Baker if Rodriguez did not comply.  Rodriguez
contacted the federal authorities.  He then flew to Dallas, where FBI
agents checked him into a room at the Marriott Hotel and set up
surveillance.  Pet. App. A224-A225.

   Upon arriving in Dallas on the evening of March 17, Padilla dropped
off Hinojosa and picked up petitioner Rocha.  Padilla and Rocha took
Baker to a motel in Arlington, Texas.  Padilla left the motel for a
few hours, leaving Rocha alone with Baker.  When Padilla returned, he
brought with him petitioner Gallegos and an unidentified male.  Ibid.

   The following morning, Rodriguez attempted to contact Padilla by
calling his beeper number, and, upon instructions from the FBI,
entered the telephone number to the FBI "hello phone." /2/ Padilla
telephoned this number several times to set up a meeting with
Rodriguez.  Padilla instructed Rodriguez to await a call from Hector
Garcia regarding the exchange.  During one of the calls, Rodriguez
told Padilla that his hotel room number was 44, but during a later
call revealed that the correct number was 448.  Ibid.

   At some point during the afternoon, Padilla gave certain directions
to Rocha, Gallegos, and the unidentified man;  Baker thought that
Padilla gave the three men Rodriguez's room number at the Marriott
Hotel and directed them to go meet Rodriguez.  Rocha, Gallegos, and
the third man left the motel, while Padilla remained with Baker.
Later that afternoon, Padilla collected Hinojosa at the latter's
apartment.  When Padilla instructed Hinojosa to get "the throwaway,"
Hinojosa got a gun from his apartment and hid it in his boot.  After
Hinojosa collected another gun from Padilla's apartment, which Padilla
hid under his shirt, Padilla drove Hinojosa and Baker to meet Rocha,
Gallegos, and the third man.  Pet. App. A225-A226.

   Shortly after 4:00 p.m., five calls were made to the hello phone
within a short period of time.  The FBI learned that these calls
originated from a telephone in the basement of the Marriott Hotel.  An
FBI agent sent to the Marriott basement to investigate observed Rocha
and Gallegos at a telephone.  The agent left and advised other agents
that he believed one of the individuals might be Baker.  Agents sent
Rodriguez to the basement to ascertain whether one of the individuals
was Baker.  After determining that neither man was Baker, Rodriguez
left.  Rocha and Gallegos, apparently noticing both Rodriguez and the
agents, quickly left the basement.  They were arrested as they
attempted to drive away.  A loaded semiautomatic handgun, whose clip
bore Gallegos' fingerprint, was found beneath Gallegos' seat.  A
loaded .38 caliber revolver was found underneath Rocha's seat, and
four .38 caliber bullets were found in Rocha's pocket.  Pet. App.
A226.  Also found on Rocha was a matchbook cover upon which was
written the telephone number of Baker's mother, and a piece of paper
upon which was written the number of the FBI hello phone, and the
partial Marriott Hotel room number that Rodriguez initially had given
to Padilla.  Pet. App. A236.

   Later that afternoon, Garcia telephoned Rodriguez and instructed
him to bring Padilla's money to a local mall.  Rodriguez met Garcia at
the mall, where Garcia told him that he would tell Padilla that he had
seen the money and "guaranteed" that Baker would be released.  Garcia
instructed Rodriguez to return to the mall in one hour for Baker.
Shortly after this meeting, someone alerted Padilla to the
investigation.  Padilla released Baker and left the area.  He and the
remaining defendants were arrested shortly thereafter.  Ibid.

   2. At trial, during redirect examination of Rodriguez, the
prosecutor questioned Rodriguez about a death threat that Padilla had
made during the trial.  Rodriguez testified that during his direct
examination Padilla had mouthed the words "You are dead," and moved a
finger across his throat.  Rodriguez further testified that he felt
"(l)ike I probably will be." Petitioners and the other co-defendants
objected and moved for a severance.  The district court denied the
motions, but cautioned the jury that the case against each of the
defendants had to be considered separately and individually.  Pet.
App. A229, F101-F103.

   During her initial closing argument, the prosecutor stated that the
evidence showed that although Padilla had made plans for Garcia to
meet with Rodriguez to exchange Baker for the money owed by Rodriguez,
that the defendants were not waiting for the exchange.  Rather,
Padilla "sent his people to the Marriott Hotel to collect that debt
(for the cocaine) in person.  And whether that debt would be the
physical person of Tony Rodriguez or the money, it does not appear as
if it mattered." Pet. App. A234, G39.  In his closing argument,
petitioner Gallegos' attorney stated:

      I don't think it is a reasonable conclusion that (Rocha and
      Gallegos) were (at the Marriott Hotel) to go and bump him off
      prior to going to the mall.  If they had him going to the mall,
      why would they want to bump him off here for God sakes.  It
      doesn't make sense.  If they were going over there to hurt him,
      they wouldn't be caught in the room.

Pet. App. A235, G81.  In response, the prosecutor during rebuttal
argument stated:

         I submit to you that (petitioner Gallegos) was at the
      Marriott to aid (petitioner Rocha) in causing an ambush on Tony
      Rodriguez.  Their purpose for being there and their purpose for
      calling the hotel switchboard four or five times there within a
      few minutes is they are trying to determine what room number Mr.
      Rodriguez was in, and they are going to make a hit on Mr.
      Rodriguez.  Either go up to the room and do it or catch him as
      he is on his way out to the mall, and when Hector Garcia saw
      Tony Rodriguez alive at the Forum 303 mall he was probably more
      surprised than anyone else because I submit to you that
      (petitioners) were supposed to kill him before he ever left the
      hotel and get his money.

Pet. App. A234 & n.15, G147.  The defendants objected to this
statement and moved for a mistrial.  The district court refused the
mistrial request, but sustained the objection and instructed the jury
to disregard the prosecutor's statement.  Pet. App. A234, G147-G148.

   In sentencing petitioners, the district court enhanced their base
offense levels six levels under Section 2A4.1(b)(1) of the Sentencing
Guidelines for committing the offense of kidnapping when a ransom
demand was made, and four levels under Section 2A4.1(b)(5) for
committing the offense of kidnapping when the victim was kidnapped to
facilitate the commission of another offense (extortion).  Pet. App.
A242.

   3. The court of appeals affirmed petitioners' convictions.  The
court rejected petitioners' contention that they should have been
granted a severance because the evidence of Padilla's death threat
rendered their trial unfair.  Pet. App. A229-A231.  Although the court
was unable to say that no prejudice occurred to petitioners as a
result of the evidence of the death threat, the court found that two
factors limited its prejudicial effect.  /3/ First, the evidence "was
not particularly inflammatory" towards petitioners:  the threat was
made solely by Padilla, and there was "no reason for the jury to infer
that any other defendant was involved in making the threat." Pet. App.
A231.  Moreover, "the prosecutor made no attempt to attribute
culpability for the threat to any defendant besides Padilla." Ibid.
Second, immediately following introduction of the evidence, the
district court carefully instructed the jury that the evidence was to
be considered separately against each defendant.  The court found
evidence that the jury had not penalized the co-defendants for
Padilla's threats in the jury's verdict "finding defendants guilty of
some counts and some defendants not guilty on other counts." Ibid.

   The court of appeals also rejected petitioners' claim that the
prosecutor's rebuttal statements required reversal of their
convictions.  Declining to rule on the propriety of the rebuttal
remarks, /4/ the court found that, even assuming that the prosecutor's
remarks were inappropriate, any prejudicial impact was minimal.  Thus,
the remarks in question were only a small portion of the entire
closing arguments, and phrased "in such a manner that they amounted to
a suggested inference from the evidence rather than an argument
outside the record." Pet. App. A235.  Moreover, the district court had
immediately instructed the jury to disregard the prosecutor's
statements, and, in its closing instructions, had "emphasized to the
jury that statements of counsel were not evidence and the defendants
were being tried only for the offenses charged." /5/ Ibid.  These
factors, combined with the strength of the evidence against the
petitioners, established that the prosecutor's remarks "did not
infringe upon (the petitioners') substantial rights." Id. at A236.

   Finally, the court of appeals found that the district court had
properly enhanced petitioners' base offense levels under both Section
2A4.1(b)(1), for committing the offense of kidnapping when a random
demand was made, and Section 2A4.1(b)(5), for committing the offense
of kidnapping when the victim was kidnapped in order to facilitate the
commission of another offense (extortion).  The court found that
Section 2A4.1 specified five categories of specific offense
characteristics for which a defendant's base offense may be enhanced,
each of which provided for a separate increase in the base offense
level.  The court found "(no) contrary intent by the Sentencing
Commission that the section mandates the use of only one category to
enhance a defendant's offense level." Pet. App. A243.

                               ARGUMENT

   1. Petitioners argue (Pet. 8-21) that the district court's failure
to grant a severance or mistrial following the government's
elicitation of testimony concerning Padilla's death threat requires
reversal of their convictions.  The court of appeals properly rejected
this contention.

   To prevail in challenging the district court's ruling on a motion
to sever, petitioners must show that the district court abused its
discretion (see Opper v. United States, 348 U.S. 84, 95 (1954)), and
that as a result they suffered substantial prejudice.  See United
States v. Lane, 474 U.S. 438, 449 (1986).  See also United States v.
Kabbaby, 672 F.2d 857, 861-862 (11th Cir. 1982).  Similarly, a trial
judge has broad discretion to determine whether developments at trial
warrant the declaration of a mistrial, because he is in the best
position to evaluate their effect on the jury.  United States v.
Laymon, 621 F.2d 1051, 1053 (10th Cir. 1980).  For that reason, the
trial court's determination whether a mistrial is warranted is
entitled to special weight.  Arizona v. Washington, 434 U.S. 497, 510,
514 (1978).

   The district court did not abuse its discretion here in refusing to
grant a severance or a mistrial.  As the court of appeals found, two
factors limited any prejudicial effect of Padilla's death threat.
First, the threat was "was not particularly inflammatory" towards
petitioners:  it was made solely by Padilla, and there was "no reason
for the jury to infer that any other defendant was involved in making
the threat." Pet. App. A231.  Further, the prosecution "made no
attempt to attribute culpability for the threat to any defendant
besides Padilla." Ibid.

   Second, immediately following the introduction of the testimony
concerning Padilla's death threat, the district court instructed the
jury that the case against each of the defendants had to be considered
separately and individually.  It is, of course, presumed that the jury
will obey the court's instruction.  See Tennessee v. Street, 471 U.S.
409, 415 (1985);  Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985).
The jury evidently understood its responsibility to consider the
evidence against each defendant separately, since it acquitted certain
defendants, including petitioner Rocha, on some counts.  "'Convictions
will invariably be sustained if it may be inferred from the verdict
that the jury "meticulously sifted the evidence," as where it acquits
on certain counts.'" United States v. Kabbaby, 672 F.2d at 861.  See
also United States v. Jones, 839 F.2d 1041, 1056 (5th Cir.), cert.
denied, 486 U.S. 1024 (1988) ("(W)here it is likely that a properly
instructed jury would contain the effect of (evidence of a death
threat) and apply it only against the culpable party, denial of
severance is not an abuse of discretion").

   Petitioners contend (Pet. 11-17) that the decision of the court of
appeals conflicts with cases from the First, Tenth, and Eleventh
Circuits, which they claim establish a requirement that the court poll
the jury in order to determine the potential prejudicial effect of
in-court threats.  See United States v. Badia, 827 F.2d 1458,
1466-1468 (11th Cir. 1987), cert. denied, 485 U.S. 937 (1988);  United
States v. Rouco, 765 F.2d 983, 992 (11th Cir. 1985), cert. denied, 475
U.S. 1124 (1986);  United States v. Sanchez, 722 F.2d 1501, 1508-1509
(11th Cir.), cert. denied, 467 U.S. 1208 (1984);  United States v.
Barnes, 681 F.2d 717, 725 (11th Cir.), modified on other grounds, 694
F.2d 233 (1982), cert. denied, 460 U.S. 1046 (1983);  United States v.
Tashjian, 660 F.2d 829, 837-838 (1st Cir.), cert. denied, 454 U.S.
1102 (1981);  United States v. Evans, 542 F.2d 805, 814-815 (10th Cir.
1976), cert. denied, 429 U.S. 1101 (1977).

   As an initial matter, petitioners at no time requested the court to
poll the jury.  They therefore cannot complain of the court's failure
to do so.  In any event, there is no conflict among the circuits on
this issue.  In each of the cases cited, the district court responded
to actual in-court threats or testimony concerning in-court or
out-of-court threats by delivering cautionary instructions and polling
the jury to determine whether the jurors could put the incident from
their minds in reaching a verdict.  The courts of appeals found that
in the circumstances of each case, any potential prejudice was
mitigated as quickly and effectively as possible.  In none of the
cases, however, did the courts impose a requirement that the district
court poll the jury in response to such incidents.  Indeed, in two of
the cases relied upon, the Eleventh Circuit expressly noted that
"(d)eterminations of the impact of allegedly prejudicial testimony
upon a jury, as well as what curative measures, if any, can be taken
to negate the harmful effects, are matters within the sound discretion
of the trial judge." United States v. Badia, 827 F.2d at 1467, and
United States v. Rouco, 765 F.2d at 992.

   Nor did the court of appeals fail to give due weight to the rights
of the "passive co-defendants" in assessing the impact of Padilla's
death threat, as petitioners claim (Pet. 17-19).  Thus, the court
expressly recognized that

      (a) death threat of any kind is likely to be inflammatory and
      triggers concerns about the dangers of prejudice, especially
      when the death threat occurs during the course of the trial.  A
      district court must be mindful of the negative impact such
      evidence may have upon the jury and carefully consider the
      possible unfair prejudice against the other defendants.

Pet. App. A229-A230.  Moreover, the court of appeals noted that there
might be situations where the same instructions that were given in
this case would not suffice to overcome the prejudice arising from
testimony that would tend to shock and inflame a jury.  The court
nonetheless concluded (Pet. App. A231):

      (W)e are satisfied that the cautionary instruction here was
      sufficient to provide adequate protection against compelling
      prejudice.  There is no reason to assume that the district
      court's instructions were not efficacious.  * * * The jury's
      verdict finding defendants guilty of some counts and some
      defendants not guilty on other counts shows that the jury did
      not penalize (petitioners) for Padilla's threat.

   Petitioners also argue (Pet. 19-21) that the government was guilty
of misconduct in deliberately eliciting testimony concerning Padilla's
in-court threat.  However, the court of appeals found that testimony
concerning the threat was properly admitted against Padilla pursuant
to Fed. R. Evid. 404(b) because it was probative of his guilt in the
offenses charged and of the validity of his defense of duress.  Pet.
App. A241.  See also United States v. Mendez-Ortiz, 810 F.2d 76, 79
(6th Cir. 1986), cert. denied, 480 U.S. 922 (1987) (evidence of a
threat towards an adverse witness is admissible to show consciousness
of guilt) (citing cases);  United States v. Rosa, 705 F.2d 1375,
1377-1378 (1st Cir. 1983).  The court's holding in this regard
disposes of petitioners' complaint that the government was guilty of
misconduct in eliciting testimony concerning the threat.

   2. Petitioners also argue (Pet. 22-34) that the prosecutor's
rebuttal argument that petitioners' purpose for being in the basement
of the Marriott Hotel was "to make a hit on Mr. Rodriguez," was
without any evidentiary basis and was so prejudicial as to deny them a
fair trial.  The court below held, after considering the totality of
the circumstances, that the prosecutor's remarks, even if error, "did
not infringe upon the substantial rights of (petitioners)" (Pet. App.
A235-A236).  The court relied on well settled principles in reaching
this conclusion, and further review by this Court is therefore
unwarranted.

   As an initial matter, the prosecutor's rebuttal remarks "must be
examined within the context of the trial to determine whether the
prosecutor's behavior amounted to prejudicial error." United States v.
Young, 470 U.S. 1, 12 (1985).  See also Darden v. Wainwright, 477 U.S.
168, 179 (1986).  The prosecutor's comments were in direct response to
petitioner Gallegos' closing argument that it was unreasonable to
conclude that petitioners went to the Marriott Hotel to "bump
(Rodriguez) off." Thus, as the court of appeals noted, "it is
difficult to find merit in (petitioners) contention that the
prosecutor's remarks in rebuttal closing argument were inappropriate
under the circumstances;  they were responsive to Gallegos' closing
argument * * *." Pet. App. A235.  /6/

   Nor was the prosecutor's comment totally without evidentiary
support.  The record established that upon his arrival in Texas,
Padilla contacted Rodriguez at the Marriott Hotel and instructed him
to await a telephone call from Garcia concerning the exchange of Baker
for the money.  Notwithstanding these arrangements, Padilla sent
petitioners to the Marriott hotel, giving them Rodriguez's room
number.  After collecting two firearms from their homes, including an
untraceable "throwaway" firearm, Padilla and Hinojosa joined
petitioners in their car.  Soon thereafter, petitioners placed several
calls to Rodriguez's hotel room from a telephone in the hotel's
basement.  Upon their arrest, the police found a loaded pistol, whose
clip bore Gallegos' fingerprint, underneath Gallegos' car seat, a
loaded .38 caliber revolver underneath Rocha's car seat, and four .38
caliber bullets in Rocha's pocket.  A fair inference to be drawn from
this evidence was that Padilla had eschewed a peaceful exchange with
Rodriguez in favor of violence.

   But even if the prosecutor's rebuttal argument was improper, the
court of appeals properly found that "any prejudicial impact on
(petitioners) was minimal." Pet. App. A235.  As the court found, the
remarks in question were but a small portion of the entire closing
arguments, and "the prosecutor phrased her remarks in such a manner
that they amounted to a suggested inference from the evidence rather
than an argument outside the record." Ibid.  Further, the district
court gave an immediate instruction that the jury should disregard the
comments, and, during its final instructions, emphasized that
"statements of counsel were not evidence and the defendants were being
tried only for the offenses charged." Ibid.  /7/ Such admonitions are
adequate to protect against prejudice.  See, e.g., United States v.
Nabors, 761 F.2d 465, 470 (8th Cir.), cert. denied, 474 U.S. 851
(1985);  United States v. Shackelford, 709 F.2d 911, 913 (5th Cir.),
cert. denied, 464 U.S. 899 (1983).

   Finally, the jury's decision to acquit petitioner Rocha and some
other defendants on some counts shows that the jury was not inflamed
against petitioners by the prosecutor.  "(Such action) indicates * * *
that the jury carefully weighed the evidence against each defendant,
acquitting when the evidence was insufficient.  This reflects a
logical approach to the deliberations, inconsistent with passion or
prejudice." United States v. Solis, 747 F.2d 930, 942-943 (5th Cir.
1984), cert. denied, 473 U.S. 906 (1985).

   Petitioners nonetheless complain (Pet. 22-33) that the court of
appeals has lowered the existing standards for determining whether
improper prosecutorial comments constitute reversible error.
According to petitioners, the court "created a precedent that
defendants in the Fifth Circuit are not entitled to review of their
rights to a fair trial where the evidence is found to be sufficient to
support the conviction." Pet. 29.  The court, however, looked beyond
the sufficiency of the evidence in assessing whether the prosecutor's
comments had deprived petitioners of a fair trial.

   In the case of prosecution remarks that receive a contemporaneous
objection, "(t)he relevant question is whether the prosecutor's
comments so infected the trial with unfairness as to make the
resulting conviction a denial of due process.'" Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.
637 (1974)).  In assessing whether the prosecutor's statements
affected petitioners' substantial rights, the court of appeals looked
to "(1) the magnitude of the prejudicial effect of the statements, (2)
the efficacy of any cautionary instruction;  and (3) the strength of
the evidence of the defendant's guilt." Pet. App. A235.  The court
upheld petitioners' convictions only after weighing all these factors
and determining that the prosecutor's comments had not deprived
petitioners of a fair trial.  /8/

   Nor, contrary to petitioners' claim, did the court of appeals
conclude that the evidence against petitioners was merely
"sufficient." To be sure, the court at one point stated that "there
was sufficient evidence to convict (petitioners)." Pet. App. A235.
However, after reciting 14 separate factors that connected petitioners
to the kidnap conspiracy, the court concluded (Pet. App. A236)
(emphasis added):

      Considering the limiting instructions given and the strength of
      the evidence against (petitioners), we find that the
      prosecutor's remarks did not infringe upon the substantial
      rights of (petitioners).

   3. Finally, petitioners argue (Pet. 34-43) that the district court
improperly enhanced their sentences under Section 2A4.1(b) of the
Sentencing Guidelines for committing the offense of kidnapping when a
ransom demand was made, and also Section 2A4.1(b)(5) for committing
the offense of kidnapping when the victim was kidnapped to facilitate
the commission of another offense (extortion).  According to
petitioners, enhancing the offense level once for the ransom demand
and again for extortion amounted to an impermissible double penalty
for the same conduct.  The court of appeals correctly rejected this
claim.

   Section 2A4.1(b) of the Sentencing Guidelines specifies five
categories of specific offense characteristics for the offense of
kidnapping for which a defendant's base offense may be enhanced.  Each
category provides for a separate increase in the defendant's base
offense level.  Thus, Section 2A4.1(b)(1) provides for an increase of
six levels if a ransom demand was made;  Section 2A4.1(b)(2) provides
for increases if the kidnap victim was injured, with the amount of the
increase depending on the severity of the injury;  Section 2A4.1(b)(3)
provides for an increase of two levels if a dangerous weapon was used;
 Section 2A4.1(b)(4) provides for increases of various levels
depending on the length of time that the kidnap victim was detained;
and Section 2A4.1(b)(5) provides for an increase of four levels if the
victim was kidnapped to facilitate the commission of another offense.

   Petitioners nonetheless point to the commentary to Section 2A4.1,
which states that "(a)n enhancement is provided when the offense is
committed for ransom or to facilitate the commission of another
offense." According to petitioners, the commentary's use of the word
"or" indicates that their sentences could be enhanced either for the
ransom demand or for the facilitation of the offense of extortion, but
not both.  However, the court must follow the clear, unambiguous
language of the Guidelines absent any discernible manifestation of
contrary intent.  United States v. Vickers, 891 F.2d 86, 88 (5th Cir.
1989);  United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir. 1989).

   As the court of appeals found, Section 2A4.1 unambiguously
specifies five categories of specific offense characteristics for
which a base offense level may be enhanced.  "The section does not
specify that the categories are mutually exclusive," and nothing in
the Guidelines indicates "any contrary intent by the Sentencing
Commission that the Section mandates the use of only one category to
enhance a defendant's offense level.  Pet. App. A243.  Indeed, the
commentary to Section 1B1.1 provides (Application Note 4):

      The offense level adjustments from more than one specific
      offense characteristic within an offense guideline are
      cumulative (added together) unless the guideline specifies that
      only the greater (or greatest) is to be used.  Within each
      specific offense characteristic subsection, however, the offense
      level adjustments are alternative;  only the one that best
      describes the conduct is to be used.

   Moreover, the Sentencing Guidelines are explicit when double
counting is forbidden.  Numerous sections clearly provide that an
offense level increase based on specific conduct is not permitted if
the offense Guideline already takes that same conduct into account.
See Section 2C1.2 (Application Note 2);  Section 2J1.2 (Application
Note 2);  Section 2T1.4 (Application Note 3);  Section 2X3.1
(Application Note 2);  Section 3A1.1 (Application Note 2);  Section
3A1.2 (Application Note 3);  Section 3A1.3 (Application Note 2);  and
Section 3C1.1 (Application Note 4).  Here, by contrast, the commentary
language to Section 2A4.1 relied on by petitioners does not clearly
preclude the enhancement of a defendant's base offense level for a
ransom demand when the defendant's base offense level is enhanced for
the facilitation of another offense.

   Petitioners' real complaint is that their sentences should not be
enhanced under both Sections 2A4.1(b)(1) and 2A4.1(b)(2) because both
specific offense characteristics involved the same conduct -- that is,
the ransom demand also constituted the offense of extortion that was
being facilitated by the kidnapping.  However, in a related context,
the courts have rejected the argument that a defendant's criminal
history level cannot be enhanced based on factors that also constitute
elements of the crime of conviction.

   Thus, in United States v. Goldbaum, supra, the defendant was
convicted of unlawful escape from custody, in violation of 18 U.S.C.
751(a).  In sentencing the defendant, the district court enhanced his
criminal history level by three points pursuant to Guideline Section
4A1.1(d), which provides that two points are to be added to the
defendant's criminal history category if the "defendant committed the
instant offense while under any criminal justice sentence, including *
* * imprisonment * * *." The court of appeals rejected the defendant's
argument that because "confinement" and "imprisonment" were
substantive elements of the crime of escape under 18 U.S.C. 751(a),
those factors could not be considered as enhancement factors for
purpose of Guideline Section 4A1.1(d).  The court found that because
Section 4A1.1(d) clearly called for the addition of three points to
the defendant's criminal history category, and because there was no
express intent in the Guidelines to the contrary, the clear language
of the Guidelines should be followed.  See also United States v.
Ofchinick, 877 F.2d 251, 255-257 (3d Cir. 1989) (same);  United States
v. Vickers, 891 F.2d at 87-88 (same).

   In any event, even if petitioners were correct in their assertion
that an enhancement for both the ransom demand and the offense of
extortion constituted impermissible double counting because, under the
facts of this case, the ransom demand and the extortion were the same
offense, they still could not be heard to complain.  The record
conclusively establishes that Rodriguez's nephew Baker was kidnapped
in order to facilitate the commission of Padilla's drug deal with
Rodriguez.  That is, Baker was kidnapped in order to force Rodriguez
to pay Padilla for the cocaine fronted him.  Clearly, there is no
overlap between the ransom demand and the underlying drug deal.
Accordingly, petitioners' sentence was properly enhanced under Section
2A4.1(b)(1) for the ransom demand, and four levels under Section
2A4.1(b)(5) for committing the offense of kidnapping when the victim
was kidnapped to facilitate the commission of a drug offense.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   DEBORAH WATSON

      Attorney

   APRIL 1991

   /1/ Co-defendants Thomas Padilla, Hector Garcia-Garcia, and Johnny
Robert Hinojosa were also convicted on various charges arising from
the kidnapping of Michael Baker.

   /2/ The FBI "hello phone" is an unlisted private telephone line to
a telephone located in FBI offices.  Agents made arrangements so that
any incoming call to the hello phone would be automatically forwarded
to the Marriott Hotel, where Rodriguez was staying, and a trace
started.

   /3/ The court found that evidence concerning the death threat was
admissible against Padilla because "it was probative of (his) guilt in
the offenses charged and of the validity of his defense of duress."
Pet. App. A241.

   /4/ The court of appeals found that the government's rebuttal
argument was "a direct response" to petitioner Gallegos' closing
argument in which Gallegos' attorney stated that it was unreasonable
to conclude that Gallegos and Rocha had gone to the Marriott Hotel to
"bump (Rodriguez) off." Pet. App. A235.  Responding to petitioners'
argument that the remarks of Gallegos' attorney were themselves a
response to the prosecutor's initial opening statements, the court
stated that it was unconvinced that the government's initial closing
argument "amounted to an accusation of conspiracy to murder." The
court stated (ibid.):

      (I)t is difficult to find merit in the defendants' contention
      that the prosecutor's remarks in rebuttal closing argument were
      inappropriate under the circumstances;  they were responsive to
      Gallegos' closing argument, and there were no objections to the
      prosecutor's comment in the initial closing argument which
      Gallegos contends opened up the issue of intent to murder.

   /5/ The district court instructed the jury (Pet. App. A235 n.17):

         Remember that any statements, objections, or arguments made
      by the lawyers are not evidence.  The function of the lawyers is
      to point out those things that are most significant or most
      helpful to their side of the case, and in so doing to call your
      attention to certain facts or inferences that might otherwise
      escape your notice.  In the final analysis, however, it is your
      own recollection and interpretation of the evidence that
      controls in the case.  What the lawyers say is not binding upon
      you * * *.  I caution you that you are here to decide whether
      the government has proved beyond a reasonable doubt that each
      defendant is guilty of the crimes with which he is charged.  The
      defendants are not on trial for any act, conduct, or offense not
      alleged in the indictment.

   /6/ Petitioners argue (Pet. 23 n.9) that the prosecutor's rebuttal
argument was not invited by defense counsel because the prosecutor
opened up the issue of intent to murder in her initial closing
argument.  During her initial closing argument, the prosecutor stated
that Padilla "sent his people to the Marriott Hotel to collect that
debt (for the cocaine) in person.  And whether that debt would be the
physical person of Tony Rodriguez or the money, it does not appear as
if it mattered." Pet. App. A235.  As the court of appeals observed, it
is far from clear that the prosecutor's comment "amounted to an
accusation of conspiracy to murder." Moreover, as the court of appeals
further noted, petitioners did not object to the statement, and
Gallegos' attorney clearly used an "intent to murder argument" in his
closing argument.  Ibid.

   /7/ Petitioners complain (Pet. 28 n.11) that in concluding that the
district court's instructions cured any prejudice, the court of
appeals incorrectly assumed that the general instructions that the
statements of counsel are not evidence followed the closing arguments,
whereas in fact these instructions were given before closing
arguments.  To be sure, the court of appeals did assume (Pet. App.
A235) that the district court's final jury instructions followed the
closing arguments.  However, it was not the timing of the instructions
so much as the fact that such instructions were given that prompted
the court of appeals' conclusion that petitioners were not prejudiced
by the prosecutor's comments.

   /8/ Petitioners claim (Pet. 29-34) that the decision of the court
of appeals conflicts with its earlier decision in United States v.
McPhee, 731 F.2d 1150 (5th Cir. 1984).  There, during the defendant's
trial on a false statement charge, the prosecutor in his closing
argument "blatantly implied the existence of serious extrinsic
offenses." Id. at 1153.  Further, the prosecutor expressly asked the
jury to find the defendant guilty not merely for making a false
statement, but rather, to find him guilty "because of a bunch of other
reasons." Ibid.  The court gave no cautionary instruction at the time
of the improper argument.  Finally, the evidence against the defendant
was not strong.  Indeed, after deliberating for two days, the jury
reported to the court, one hour prior to reaching its verdict, that it
was unable to reach a decision.

   Here, by contrast, the prosecutor did not ask the jury to find
petitioners guilty not merely for the offenses charged, but because of
a "bunch of other reasons." Also, unlike the situation in McPhee, the
court immediately instructed the jury to disregard the comment in
question.  Finally, the evidence against petitioners, although largely
circumstantial, was quite strong.  In any event, even if there were
any tension between the decision below and McPhee, it would be an
intracircuit conflict for the court of appeals to resolve.  See
Wisniewski v. United States, 353 U.S. 901, 902 (1957).