MARIANO H. OSPINA, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6719

   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 Eleventh Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The orders of the court of appeals (Pet. App. 1) and the district
court (Pet. App. 2-3) denying petitioner's motion for relief under 28
U.S.C. 2255 are not reported.  The opinion of the court of appeals on
petitioner's direct appeal of his criminal convictions is reported at
798 F.2d 1570.

         JURISDICTION

   The judgment of the court of appeals was entered on July 25, 1990.
The petition for a writ of certiorari was filed on December 20, 1990,
and is therefore out of time under this Court's Rule 13.1.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner's due process rights were violated by the
alleged destruction of evidence that he claims would have been
exculpatory.

   2. Whether the evidence was sufficient to support petitioner's
convictions on charges of conspiracy and concealment of material facts
from the United States relating to the existence, source, and transfer
of currency in amounts exceeding $10,000.

   3. Whether the government engaged in "outrageous conduct" by
failing to require a bank to file currency transaction reports.

   4. Whether the district court committed plain error by failing to
use a special verdict form requiring the jury to identify the
objectives of the conspiracy.

   5. Whether the district court improperly allowed into evidence a
trial witness's grand jury testimony.

   6. Whether petitioner's trial and appellate counsel ineffectively
argued or failed to argue the points he now raises on collateral
attack.

                               STATEMENT

   After a jury trial in the United States District Court for the
Southern District of Florida, petitioner was convicted on one count of
conspiracy (18 U.S.C. 371) and five substantive counts of concealing,
by scheme and device, material facts relating to the existence, source
and transfer of currency in amounts exceeding $10,000 (18 U.S.C.
1001).  The district court sentenced petitioner to a total of ten
years in prison, consisting of a five-year term on the conspiracy
conviction to be followed by five concurrent five-year prison terms on
the substantive counts.  The court of appeals affirmed.  798 F.2d
1570.

   After his convictions were affirmed, petitioner instituted a series
of motions in the district court pursuant to Fed. R. Crim. P. 35 and
28 U.S.C. 2255 challenging his sentence and convictions.  Those
motions were referred to a magistrate, who recommended that they be
denied.  The district court agreed with that recommendation and, on
May 1, 1989, issued a final order denying petitioner's request for
relief under 28 U.S.C. 2255.  Pet. App. 2-3.  The court of appeals
affirmed this order without opinion.  Pet. App. 1.

   1. The facts underlying petitioner's convictions are set forth in
the court of appeals' opinion on direct appeal.  798 F.2d 1570.
Briefly, the evidence showed that petitioner and his brother Rudolfo
had hired Mauricio Lehrer to launder large sums of currency.  /1/
Lehrer, in turn, unwittingly hired undercover Internal Revenue Service
(IRS) agents to assist him in laundering the cash.  Id. at 1571-1576.

   In June and July 1984, Lehrer and the undercover agents engaged in
five separate money laundering transactions on behalf of petitioner
and his brother.  Lehrer generally would hand the agents large sums of
cash (sometimes in the presence of petitioner and/or his brother),
which the agents would then exchange at the Flagship National Bank in
Miami for cashier's checks.  The agents represented to Lehrer that
they had a bank contact who would assure that currency transaction
reports (CTRs) would not be filed with the federal government;  in
actuality, the agents identified themselves to bank officials as IRS
agents and the bank did not file reports.  All told, petitioner and
his brother paid Lehrer and the agents approximately $52,000 in
commissions to launder approximately $1.3 million cash.  798 F.2d at
1571-1576.

   The government presented evidence at trial from which the jury
could have concluded that the laundered $1.3 million were drug
proceeds.  For example, the agents subjected the money from two of the
transactions to trained narcotics sniffing dogs who alerted to the
presence of narcotics scent on the money.  798 F.2d at 1573, 1574.
Moreover, the agents once complained to Lehrer that the money was
always extremely dirty, had a powdery substance on it, and caused them
headaches because little clouds would come up when they put it through
a counting machine.  Lehrer responded that he knew this but "(t)hat's
the business these people are in" and Lehrer would "only handle the
money * * * transactions" without "get(ting) involved in that end of
it." Id. at 1574.

   2. The court of appeals affirmed petitioner's convictions, as well
as Lehrer's convictions, on direct appeal.  798 F.2d 1570.  The court
concluded, as to the substantive convictions under 18 U.S.C. 1001,
that petitioner had illegally concealed material information that both
Lehrer and Flagship National Bank should have provided for each
transaction that they conducted in excess of $10,000.  The court
explained that Lehrer had a legal obligation to file CTRs under the
then-governing Treasury Department regulations.  See id. at 1578-1579
(citing the relevant regulation, which is currently codified in
revised form at 31 C.F.R. 103.11(i)(3)).  The court also explained
that Flagship National Bank was required to file CTRs on the currency
transactions as well.  /2/

   The court further held that there was sufficient evidence to show
that petitioner knew of the legal requirement that CTRs must be filed
for the currency transactions in question and that he took affirmative
steps to obstruct the filing of those reports.  798 F.2d at 1580-1581.
 The court cited as "direct evidence" of petitioner's knowledge the
testimony of the office manager of a commodities firm handling
petitioner's accounts that he had told petitioner that banks must
report the details of cash transactions over $10,000.  Ibid.
Moreover, the court concluded that the clandestine and secretive
manner in which petitioner and Lehrer dealt with the agents, as well
as the fact that petitioner was willing to pay more than $52,000 for
the sole purpose of laundering $1.3 million, "refutes any claim of
innocent conduct." Id. at 1581.

   Finally, the court held that the evidence was sufficient to support
petitioner's conviction on the conspiracy charge under 18 U.S.C. 371.
798 F.2d at 1582-1583.  The court noted that the three objects of the
conspiracy were to defraud the IRS by obstructing its collection of
information on CTRs, to violate 18 U.S.C. 1001 by concealing material
facts relating to currency transactions, and to violate 18 U.S.C. 1952
by using interstate commerce to facilitate a business involving
narcotics and controlled substances.  798 F.2d at 1576.  The court
rejected petitioner's challenge to the sufficiency of the government's
proof of the third object, holding that "the evidence was fully
sufficient to show that the laundered money was proceeds from drug
transactions." Id. at 1582.  The evidence relied on by the court
included Lehrer's co-conspirator statement that the money was powdery
because of petitioner's business and the fact that trained narcotics
dogs alerted to the scent of cocaine when they sniffed the money.  Id.
at 1582-1583.  In addition, the court explained that "(t)he amount of
money (itself) coupled with the short period of time it was
transferred in could lead to a reasonable conclusion by the jury that
it was the proceeds of a narcotics business." Id. at 1583.

                               ARGUMENT

   Petitioner raises issues that, for the most part, were rejected by
the court of appeals on his direct appeal of his convictions.  The new
issues petitioner has raised on collateral attack, including the claim
that his counsel ineffectively argued certain issues and failed to
raise others, are without merit.  Accordingly, there is no warrant for
this Court's review.

   1. Petitioner contends (Pet. 14-24) that the government violated
his due process rights by destroying "favorable and exculpatory
evidence." According to petitioner, the government improperly failed
to preserve and test the residue that collected on the machine the
agents used to count the currency.  Petitioner hypothesizes that the
agents failed to preserve and test the residue because it was actually
"baby talc powder" rather than cocaine.  Id. at 20.

   This Court has held that "unless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law."
Arizona v. Youngblood, 488 U.S. 51, 58 (1988).  Petitioner has a
difficult task in establishing the factual predicate for his claim.
There was no showing at trial that the residue was of sufficient
quantity, or that it was collected in a manner to allow, for drug
testing.  More importantly, petitioner provides no basis for believing
that the agents acted in bad faith in failing to collect and preserve
the residue.

   In any event, petitioner was not meaningfully prejudiced by the
failure to preserve the residue.  Defense counsel elicited the agent's
admission that the residue was not preserved for testing (see Pet.
20-21) and offered expert testimony that virtually all currency in
South Florida contains cocaine residue (see Gov't C.A. Br. 41).
Moreover, as we explain further below, other circumstances of the
transactions indicated that the currency was related to narcotics
trafficking and the issue whether the currency was drug-related bore
on only one objective of a conspiracy charge that was independently
sustainable based upon the two other objectives.

   2. Petitioner's challenges to the sufficiency of the evidence as to
his convictions were addressed and correctly rejected by the court of
appeals on petitioner's direct appeal.  There is no merit to
petitioner's attempt reformulation of these already rejected claims.

   Petitioner first contends (Pet. 25-36) that the evidence failed to
show that an object of the conspiracy was to violate the Travel Act
(18 U.S.C. 1952) by using interstate commerce to facilitate a
narcotics business.  The court of appeals correctly held (798 F.2d at
1582-1583) that there was sufficient evidence (including the facts
that trained dogs alerted to the scent of cocaine and that
co-conspirator Lehrer explained the money was powdery because of
petitioner's business) to show that the laundered cash was
drug-related.  There is no merit to petitioner's claims that the proof
failed to establish that interstate commerce was used and that
"thereafter" an overt act was performed to further this narcotics
business.  As the court of appeals explained (798 F.2d at 1581),
petitioner and his co-conspirators used interstate facilities by
wire-transferring the laundered funds through several domestic
financial institutions and they thereafter transferred the funds out
of the United States to a secret account established in the Cayman
Islands.  Thus, even if all elements of a substantive Travel Act
violation must be established where a defendant is charged only with
conspiring to violate it, the evidence was sufficient.  /3/

   Petitioner also contends (Pet. 36-40) that the evidence was
insufficient to show he affirmatively concealed material facts in a
matter within the jurisdiction of the United States.  See United
States v. Woodward, 469 U.S. 105, 108 & n.5 (1985) (conviction under
18 U.S.C. 1001 for concealing material facts requires an affirmative
act of concealment).  Contrary to this claim, there was ample evidence
that petitioner affirmatively schemed to conceal the fact that he was
actually the source of the $1.3 million laundered through the
financial institutions.  Had petitioner directly deposited this money
into a bank, the bank would have been required to file CTRs with the
Treasury Department identifying petitioner as the person conducting
the transaction.  See 31 U.S.C. 5313(a);  31 C.F.R. 103.22.
Petitioner paid intermediaries approximately $52,000 for the sole
purpose of exchanging his cash into cashier's checks and concealing
his involvement.  The evidence amply showed that, far from simply
passively failing to provide information, petitioner and Lehrer
committed affirmative acts constituting a trick, scheme or device by
which they sought to conceal material facts.  See 798 F.2d at
1580-1581.

   3. There is no merit to petitioner's claim (Pet. 41-44) that his
convictions must be vacated because the government engaged in
"outrageous misconduct" that violated his constitutional rights.  The
alleged misconduct is the agents' instructions to Flagship National
Bank officials not to file CTRs.  Even assuming the agents
specifically instructed the bank not to file CTRs, rather than simply
identifying themselves as federal undercover agents and leaving the
decision up to the bank, that would have been a reasonable decision
made to further a legitimate undercover operation.  While a CTR
technically was required under these circumstances (see 798 F.2d at
1579-1580), the agents' on-the-spot decision to the contrary would
have caused the government no harm and certainly would not have
violated petitioner's constitutional rights.  Cf. Hampton v. United
States, 425 U.S. 484 (1976) (rejecting attempted constitutional claim,
by defendant convicted of selling heroin to undercover agent, of
outrageous government misconduct).

   4. Petitioner also contends (Pet. 44-47) that the court improperly
failed to employ a special verdict form that would have required the
jury to indicate which of the three alleged objectives petitioner had
conspired to commit.  Contrary to petitioner's claim, the district
court was not required to employ a special verdict form requiring the
jury to indicate the conspiracy objective(s) upon which it based its
general guilty verdict.  In this case, while counsel for petitioner's
co-defendant Lehrer initially requested use of a special verdict form,
Lehrer's counsel later withdrew that request and petitioner's counsel
indicated that he was not requesting special verdicts.  The court
specifically instructed the jurors that they "all must agree
unanimously as to which purpose of the conspiracy the defendants
agreed to accomplish." Gov't C.A. Br. 35-36 (quoting instructions).
That instruction fully protected petitioner's right to a unanimous
jury verdict.

   Petitioner's contention that the court was required to go beyond
its unanimity instruction by using special verdicts is especially
unavailing in light of defense counsel's express decision not to
request such verdicts.  Except in forfeiture cases (Fed. R. Crim. P.
31(e)), the Federal Rules do not provide for special verdicts in
criminal cases, and this Court has explained that "no general practice
of these techniques (special verdicts and interrogatories) has
developed in American criminal procedure." Stein v. New York, 346 U.S.
156, 178 (1953).  Accordingly, the courts of appeals consistently
uphold denials of special verdicts.  /4/ We are aware of no case
holding that a court's failure to use special verdicts is reversible
error, and there is certainly no case holding that it is plain error
where such verdicts were not requested.

   Nor is there merit to petitioner's claim that his counsel rendered
ineffective assistance by not requesting special verdicts.  Courts
have discouraged the use of special verdict forms in multi-object
conspiracy cases on the theory that they impermissibly tend to lead
the jury toward a guilty verdict.  /5/ As one court recently
explained, the "preference for general verdicts" stems for the most
part "from the unique rights of criminal defendants." United States v.
Coonan, 839 F.2d 886, 891 (2d Cir. 1988).  Because special verdicts
are disfavored, and general verdicts generally are thought to favor
the defense, petitioner's counsel did not render constitutionally
ineffective assistance by deciding against seeking special verdicts on
the conspiracy count.

   5. Petitioner also contends (Pet. 48-51) that the district court
improperly allowed into evidence the grand jury testimony of a witness
who testified at trial.  The testifying witness was Victor Henriquez,
the office manager of a commodities firm at which petitioner had an
account.  After the prosecutor asked whether Henriquez had ever
discussed the CTR filing requirement with petitioner, Henriquez
responded, "I think I did, but I don't recall exactly." Gov't C.A. Br.
28-29 (quoting transcript).  The prosecutor then was allowed, over
objection, to read Henriquez's grand jury testimony that he had once
told petitioner that "any cash in excess of $10,000 that would be
given to me would have to be reported by the bank * * * ." Id. at 29.
After his grand jury testimony was read back to him at trial,
Henriquez acknowledged that he remembered it.  Ibid.

   There is no merit to petitioner's argument that the challenged
testimony was inadmissible hearsay.  Henriquez testified at trial and
adopted the statement after it was used to refresh his recollection.
Hence, the statement was not hearsay.  See Fed. R. Evid. 801(d)(1)
Advisory Comm. note ("If the witness admits on the stand that he made
the statement and that it was true, he adopts the statement and there
is no hearsay problem.").  Accord 4 J. Weinstein & M. Berger,
Weinstein's Evidence Paragraph 801(d)(1)(A)(02), at 801-147 to 801-148
(1990) (citing cases).  Moreover, even if Henriquez had not ultimately
adopted his grand jury testimony, it could have been admitted as
substantive evidence under Fed. R. Evid. 801(d)(1)(A) because it then
would have been a prior inconsistent statement given under oath in a
grand jury proceeding.  See Weinstein's Evidence Paragraph
801(d)(1)(A)(01), at 801-142 ("a witness' lack of memory will also be
grounds for substantive use" of prior sworn statement);  cf. United
States v. Owens, 484 U.S. 554, 563 (1988) ("It would seem strange, for
example, to assert that a witness can avoid introduction of testimony
from a prior proceeding that is inconsistent with his trial testimony,
see Rule 801(d)(1)(A), by simply asserting lack of memory of the facts
to which the prior testimony related.") (citing United States v.
Murphy, 696 F.2d 282, 283-284 (4th Cir. 1982), cert. denied, 461 U.S.
945 (1983)).

   6. Finally, there is no merit to petitioner's general claims that
his counsel at trial and on appeal was ineffective for failing to
argue the points he now raises on collateral attack.  Many of the
points petitioner now raises were effectively presented in somewhat
different form by counsel on direct appeal, and the court of appeals
correctly rejected them.  The arguments that petitioner did raise for
the first time on collateral attack are devoid of merit.  Accordingly,
it was reasonable for counsel not to advance these arguments, see
Jones v. Barnes, 463 U.S. 745, 751-752 (1983) (effective advocates
recognize "the importance of winnowing out weaker arguments on appeal
and focusing on one central issue if possible, or at most on a few key
issues"), and petitioner cannot establish he was prejudiced by
counsel's failure to raise them.  See Kimmelman v. Morrison, 477 U.S.
365, 384 (1986).

                              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

   SEAN CONNELLY

      Attorney

   FEBRUARY 1991

   /1/ Lehrer was charged and convicted along with petitioner, and the
court of appeals also affirmed his convictions.  798 F.2d 1570.
Rudolfo Ospina was indicted together with petitioner and Lehrer, but
had not been apprehended when the court of appeals affirmed the
others' convictions.  See id. at 1573 n.4.

   /2/ The court rejected the defense argument that, because the
undercover agents had identified themselves as IRS agents, this
removed Flagship's duty to file CTRs.  Instead, the court interpreted
the then-applicable exemption from the filing requirement (currently
codified at 31 C.F.R. 103.22(b)(2)(iii)) as reaching only
"transactions in the normal course of government business" rather than
transactions conducted by undercover government agents on behalf of
suspected criminals.  798 F.2d at 1579-1580.  The court concluded that
the "crucial" fact was that Flagship would have been obligated to file
CTRs if petitioner and Lehrer had done their banking transactions
directly and that their unwitting use of "an undercover agent to
engage in the transactions does not change this fact." Id. at 1580.

   /3/ Moreover, the conspiracy conviction is independently
sustainable because the evidence indisputably established the other
two objectives of defrauding the IRS by obstructing collection of
information on CTRs and of concealing material facts relating to
currency transactions.  As we explained in acquiescing to the
certiorari petition in Griffin v. United States, No. 90-3562 (granted
Feb. 19, 1991), most courts, but not all, hold that factual
insufficiency of the evidence as to one object of a conspiracy does
not affect the conviction if the proof established the other alleged
object(s).  The disposition of Griffin should not affect this case
because, as discussed above, the court of appeals correctly held the
evidence sufficient to show that the conspiracy here also encompassed
using commerce to facilitate a narcotics business.

   /4/ See, e.g., United States v. Frezzo Brothers, Inc., 602 F.2d
1123, 1129 (3d Cir. 1979), cert. denied, 444 U.S. 1074 (1980);  United
States v. Shelton, 588 F.2d 1242, 1251 (9th Cir. 1978), cert. denied,
442 U.S. 909 (1979);  United States v. Munz, 542 F.2d 1382, 1389 (10th
Cir. 1976), cert. denied, 429 U.S. 1104 (1977);  United States v.
Jackson, 542 F.2d 403 (7th Cir. 1976).

   /5/ United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969);
United States v. James, 432 F.2d 303, 307-308 (5th Cir. 1970), cert.
denied, 403 U.S. 906 (1971);  cf. United States v. O'Looney, 544 F.2d
385, 392 (9th Cir.) (use of special verdicts requiring jury to
identify objects of conspiracy upheld where defendants consented),
cert. denied, 429 U.S. 1023 (1976).  See generally United States v.
Ruggiero, 726 F.2d 913, 927 (2d Cir. 1984) (Newman, J., concurring in
part and dissenting in part) ("There is apprehension that eliciting
'yes' or 'no' answers to questions concerning the elements of an
offense may propel a jury toward a logical conclusion of guilt,
whereas a more generalized assessment may have yielded an
acquittal.").