PAUL BORN, III, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-1321

   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 Seventh Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Questions Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-17) is reported at
888 F.2d 1165.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 1,
1989.  A petition for rehearing was denied on December 11, 1989.  Pet.
App. 18.  The petition for a writ of certiorari was filed on February
12, 1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether certain evidence, which directly contradicted
petitioner's testimony, was properly admitted on rebuttal.

   2. Whether a question by the prosecutor to petitioner on
cross-examination amounted to harmless error.

   3. Whether certain testimony by petitioner concerning his
non-membership in a motorcycle gang was properly excluded.

   4. Whether the government improperly declined to restrict its
cross-examination of a defense witness or to grant that witness
immunity when the witness refused to testify at trial.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Northern District of Illinois, petitioner was convicted of conspiracy
to distribute cocaine and to possess cocaine with intent to distribute
it, in violation of 21 U.S.C. 846.  He was also convicted on four
counts of distributing cocaine and possessing cocaine with intent to
distribute it, in violation of 21 U.S.C. 841(a)(1).  He was sentenced
to concurrent terms of 23 years' imprisonment on each count, to be
followed by ten years of supervised release.  Pet. App. 3-4, 5.

   1. The evidence at trial showed that petitioner was involved in
supplying cocaine for a number of cocaine sales made to a government
informant, Robert Blessing, and an undercover DEA agent, John Riley.
Blessing first arranged two cocaine purchases from Oscar DeLisle on
April 2 and April 13, 1987, at the ABC Lounge in Streamwood, Illinois.
 At the first sale, Blessing and Agent Riley met with petitioner,
DeLisle, co-defendant Donald Mazzanti, and Daniel Taglia.  After some
discussion, petitioner and Mazzanti left the bar;  they returned
shortly thereafter and spoke to DeLisle.  DeLisle then gave two ounces
of cocaine to Blessing and Agent Riley.  Pet. App. 2.

   On April 13th, Blessing and Agent Riley met petitioner, DeLisle,
and Mazzanti in the ABC Lounge parking lot.  DeLisle stated that the
cocaine had to be picked up in Elgin, Illinois.  Petitioner and
Mazzanti then drove off in an orange van and DeLisle left.  When the
van returned, Blessing and Agent Riley got into the van and found
petitioner and DeLisle inside.  DeLisle took a clear plastic bag
filled with approximately two ounces of cocaine from a shopping bag
filled with similar bags and gave it to Agent Riley, who paid him
$3200.  Pet. App. 2;  Gov't C.A. Br. 5-6.

   Blessing arranged a third cocaine sale for May 13, 1987.  That
afternoon, Blessing and Agent Riley met DeLisle and Mazzanti at
DeLisle's house.  After some delay, DeLisle said that the cocaine had
arrived, and he then left the house.  A DEA surveillance agent
observed DeLisle enter the ABC Lounge at about the same time that
petitioner pulled into the parking lot in his maroon van.  After
petitioner entered the lounge, DeLisle came out and walked over to
petitioner's van, from which he removed a dark-colored package.
DeLisle then returned to his house, where he sold Agent Riley two
ounces of cocaine.  Pet. App. 2-3;  Gov't C.A. Br. 7-8.

   Over the next two months, Blessing and Agent Riley made
arrangements with Taglia and James Westerman for a multikilogram
cocaine transaction.  On July 7, 1987, after the transaction had been
delayed several times, Taglia explained to Blessing and Agent Riley
that he was having trouble reaching his source, who was going to be
appearing in court.  Both petitioner and Mazzanti appeared in state
court that morning.  Gov't C.A. Br. 8-9.  Finally, Taglia agreed to
supply a quantity of cocaine worth $175,000 at a price of $32,000 per
kilogram on July 13, 1987.  On that day, Blessing, Agent Riley and a
second undercover DEA agent, Bill Maloney, drove with Taglia to a
pizzeria in Streamwood, where they met Mazzanti and DeLisle.  Pet.
App. 3.  While they waited, someone commented that the cocaine would
be coming in a white plastic paint pail.  Gov't C.A. Br. 10.  At one
point, Mazzanti made a phone call, explaining that he was trying to
reach "my guy Paul." Pet. App. 3.

   Shortly thereafter, petitioner drove his maroon van into the
parking lot.  At Mazzanti's request, Blessing gave Mazzanti his car
keys, and Mazzanti left the restaurant.  In the parking lot,
petitioner removed a large white plastic pail from his van;  Mazzanti
then transferred the pail into the trunk of Blessing's car.  After
Mazzanti returned to the restaurant, Blessing went to the car, tasted
the cocaine, and told the agents that the cocaine was suitable.  DEA
agents then arrested DeLisle, Mazzanti, and petitioner.  Pet. App. 3;
Gov't C.A. Br. 12.  Inside petitioner's van, the agents found three
bags of cocaine, a .357 magnum pistol, and a telephone paging device.
The white plastic pail in the trunk of Blessing's car contained
approximately 12 pounds of cocaine.  Ibid.

   2. Petitioner's defense was that the government witnesses mistook
him for either John Burroughs or John Newell, two men who resembled
him and who frequented the ABC Lounge.  Pet. App. 4;  Pet. 6-7.  In
his testimony at trial, petitioner admitted that he was at or near the
locations of two of the cocaine transactions, but he denied being
involved in any of the sales.  Petitioner also admitted that he was a
frequent patron of the ABC Lounge, but he testified that he knew
nothing about the cocaine sales there.  Petitioner acknowledged that
he owned a maroon van, but he explained that DeLisle and Mazzanti
sometimes worked for him and kept their work tools in his van.  Pet.
App. 4.  Petitioner sought to testify that Mazzanti, Burroughs, and
Newell were members of the Brothers motorcycle gang and that he was
not a member of that gang.  He offered that testimony to support his
theory that the cocaine transactions were carried out by members of
that gang.  The district court, however, excluded that testimony as
irrelevant.  Ibid.

   On cross-examination, the government asked petitioner whether he
had discussed the cocaine purchases with DeLisle and whether he had
used the term "two Z's" of cocaine in a discussion with DeLisle.
Petitioner denied having any discussion or making any statement
regarding "two Z's," and he denied any knowledge of that term.  Pet.
App. 4.

   In rebuttal, the government called Detective John Mueller, a state
police officer who testified that he had discussed cocaine
transactions with petitioner.  Mueller added that he had used the term
"Z's" in their conversation to refer to ounces of cocaine and that
petitioner appeared to understand the meaning of the term.  Pet. App.
4.

   3. The court of appeals affirmed.  Pet. App. 1-17.  It held that
the district court did not abuse its discretion by refusing to allow
petitioner to introduce evidence concerning motorcycle gang
membership.  Pet. App. 5-8.  The court rejected petitioner's
contention that the testimony was relevant to his defense because a
motorcycle gang would not be likely to allow a non-member like himself
to participate in its drug deals.  The court agreed with the district
court that petitioner "was not competent to testify to the
machinations of the gang as he lacked personal knowledge of these
matters since he was not a member of the group." Pet. App. 6.  The
court added that petitioner had failed to offer the testimony of any
motorcycle gang members concerning the operation of the gang or to
proffer any evidence concerning the motorcycle gang's drug-selling
practices that would support his defense.  Ibid.

   For the same reasons, the court rejected petitioner's argument that
the excluded testimony was relevant to his mistaken identity defense.
Pet. App. 6-7.  The court noted that petitioner "was allowed to
introduce evidence on this defense" and "was prevented only from
bolstering this (defense) with other extraneous evidence concerning
the motorcycle gang." Pet. App. 6.

   The court held that any error in the exclusion of the testimony
about motorcycle gang membership was harmless in any event, since
"(t)here was overwhelming evidence of (petitioner's) guilt";
petitioner "was * * * permitted to introduce evidence that others who
frequented the ABC Lounge resembled him in physical and personal
characteristics";  and the district court instructed the jury on the
issue of mistaken identity.  Pet. App. 7, 8.

   The court of appeals next held that the district court did not
abuse its discretion when it admitted the rebuttal testimony of
Detective Mueller.  Pet. App. 8-11.  The court noted first that the
government had kept its agreement not to introduce other acts evidence
against petitioner in its case-in-chief.  Pet. App. 9.  As the court
explained, "(i)t was only after (petitioner) denied any involvement in
the charged drug conspiracy during his defense that the government
presented Detective Mueller's testimony in its rebuttal case." Ibid.

   Relying on United States v. Chaimson, 760 F.2d 798 (7th Cir. 1985),
the court ruled that Mueller's testimony was properly admitted under
Fed. R. Evid. 404(b) to show intent.  Pet. App. 9-10.  The court held
that the "blanket denial of any wrongdoing" issued by petitioner when
he took the stand "was meant to negate any evidence of intent." Pet.
App. 10.  The government in its rebuttal could therefore properly seek
"to overcome (petitioner's) absolute denial and reestablish the
element of intent." Ibid.  /1/

   Finally, the court concluded that the probative value of Detective
Mueller's testimony on the issue of petitioner's knowledge and intent
outweighed any danger of unfair prejudice, minimized as it was by the
district court's instruction to the jury "that the evidence should be
considered only as to (petitioner's) intent and knowledge." Pet. App.
11.

                               ARGUMENT

   1. Petitioner claims (Pet. 9-22) that Detective Mueller's testimony
was improperly admitted for several reasons.

   a. Petitioner first argues (Pet. 9-12) that the court of appeals'
approach in determining the admissibility of Mueller's testimony on
rebuttal conflicts with that taken by the Second Circuit.  The Seventh
Circuit allows the government to introduce evidence under Rule 404(b)
to prove intent when specific intent is an element of the charged
offense.  Pet. App. 9-10;  United States v. Chaimson, 760 F.2d 798,
805-806 (1985);  see generally 2 J. Weinstein & M. Berger, Weinstein's
Evidence Paragraph 404(09), at 404-64 to 404-66 (1989).  The Second
Circuit, on the other hand, has adopted a rule that the government may
not introduce evidence under Fed. R. Evid. 404(b) to prove intent if a
defendant does not directly contest that element of the offense.
United States v. Colon, 880 F.2d 650 (1989);  United States v. Ortiz,
857 F.2d 900 (1988), cert. denied, 109 S. Ct. 1352 (1989).  In the
Second Circuit's view, the claim that a defendant had no involvement
in the acts constituting the offense -- as opposed to a claim that he
did the acts innocently or mistakenly -- does not raise a dispute as
to the issue of intent.  Colon, 880 F.2d at 656-657;  Ortiz, 857 F.2d
at 903-904.

   While there is a difference in the approaches of the Seventh and
Second Circuits, that difference is not implicated by this case.  The
Second Circuit has explained that, in order to remove the issue of
intent from a case, a defendant must (1) unequivocally express a
decision not to dispute the issue of intent, and (2) agree to accept
an instruction to the jury that, if it finds the other elements of the
offense established beyond a reasonable doubt, it can resolve the
issue of intent against the defendant because intent is not disputed.
Colon, 880 F.2d at 659;  Ortiz, 857 F.2d at 903-904.  While the Second
Circuit does not require a formal stipulation to satisfy the first
requirement, "a defendant must make some statement to the (trial)
court of sufficient clarity to indicate that the issue (of intent)
will not be disputed." Colon, 880 F.2d at 659.  Even if petitioner's
theory of defense was sufficient to put the district court on notice
that he did not dispute the issue of intent, there is no indication
that petitioner was willing to accept the required instruction that
the jury should find the necessary specific intent if it found the
other elements of the offense.  To the contrary, after denying any
involvement in the cocaine transactions, petitioner specifically
denied that he had any intent of involvement.  4/28 Tr. 1496, 1502.
Under these circumstances, the Second Circuit would not have reached a
different result in this case.  Colon, 880 F.2d at 659.

   In addition, petitioner's claim that the Second Circuit would not
have admitted Mueller's testimony under Rule 404(b) overlooks the fact
that Mueller's testimony was properly admissible for a purpose wholly
independent of proving petitioner's intent and knowledge:  to impeach
his credibility through specific contradiction.  Petitioner testified
both on direct and on cross-examination that he knew nothing about any
cocaine;  on cross-examination, he further testified that he did not
know the meaning of the term "Z's" of cocaine.  4/28 Tr. 1453,
1496-1499, 1502.  Mueller's testimony directly contradicted
petitioner's testimony.  It was therefore properly admissible to
impeach petitioner's credibility, regardless whether it was also
separately admissible under Rule 404(b).  See United States v. Abel,
469 U.S. 45, 56 (1984);  3 D. Louisell & C. Mueller, Federal Evidence
Section 343, at 498-499 & n.85 (1979);  see, e.g., United States v.
Warren, 453 F.2d 738, 742 (2d Cir. 1971), cert. denied, 406 U.S. 944
(1972);  Schoepflin v. United States, 391 F.2d 390, 396 (9th Cir.),
cert. denied, 393 U.S. 865 (1968).  /2/

   b. Petitioner also protests (Pet. 17-19) that, in concluding that
the probative value of that testimony was not outweighed by the danger
of unfair prejudice, the court of appeals improperly assumed that the
jurors followed the instruction to consider Detective Mueller's
testimony only as to petitioner's intent and knowledge.  That
contention is meritless;  this Court has repeatedly reaffirmed the
"crucial" and "almost invariable" assumption that jurors carefully
follow their instructions.  See, e.g., Richardson v. Marsh, 481 U.S.
200, 206 (1987);  Francis v. Franklin, 471 U.S. 307, 325 n.9 (1985);
Spencer v. Texas, 385 U.S. 554, 562 (1967).  /3/

   2. Petitioner contends (Pet. 19-22) that the prosecutor improperly
asked him on cross-examination whether he had used the term "two Z's"
of cocaine in a conversation with DeLisle on May 13, 1987, when there
was no evidence to show that such a conversation occurred.

   Since the district court did not require development of the record
on this point, the record does not reflect the basis for the
prosecutor's question.  Even assuming that the prosecutor's question
was erroneous, however, the error was clearly harmless.  As the court
of appeals pointed out (Pet. App. 11 n.4), the question was not the
basis for the admission of Mueller's testimony in rebuttal;  that
testimony was admitted based on petitioner's blanket denial of
wrongdoing.  Nor, evaluating the asserted error within the context of
the whole record, did it have any notable significance:  the
prosecution merely asked whether a conversation had taken place and
was given a negative answer.  The impact of the question about the
term "Z's" pales in comparison to what the court of appeals identified
as the "overwhelming evidence" of petitioner's guilt.  Pet. App. 7, 8.
 Government agents met with petitioner at two cocaine sales, and they
observed him acting as the supplier of the cocaine on those and two
subsequent occasions, the last of which involved 12 pounds of cocaine.
 When petitioner was arrested, he had three bags of cocaine in his
van.  Under these circumstances, the jury could not have attached much
weight to the question whether petitioner knew the meaning of the term
"Z's."

   3. Petitioner renews his contention (Pet. 24-33) that the district
court abused its discretion by refusing to allow him to testify that
other participants in the drug sale were members of a motorcycle gang
while he was not.  Under petitioner's theory, his excluded testimony
was relevant because his non-membership in the motorcycle gang made it
less likely that he was involved in a drug conspiracy in which the
other participants were gang members.

   That conclusion follows, however, only if there was some evidence
to show that the motorcycle gang would not be likely to include a
non-member in their drug transactions.  As the court of appeals
pointed out (Pet. App. 6), however, petitioner was not competent to
give that testimony because, as a self-proclaimed non-member, he
lacked personal knowledge about the internal functioning of the gang.
See Fed. R. Evid. 602.  Nor did petitioner proffer any other evidence
regarding the motorcycle gang's drug-selling practices to support his
hypothesis.  Thus, petitioner's testimony about his non-membership in
the motorcycle gang would have been relevant only if the jury had
engaged in speculation that the gang would not include a non-member in
a drug deal;  as such, it was properly excluded at trial.

   In any event, the court of appeals correctly concluded that any
error in the exclusion of petitioner's testimony was harmless.
Contrary to petitioner's suggestions (Pet. 25-26), he was allowed to
introduce evidence and argue that Burroughs and Newell, the two gang
members who resembled him and frequented the ABC Lounge, were the
likely offenders to support his mistaken identity defense.  Pet. App.
6, 8;  4/28 Tr. 1447-1448;  4/29 Tr. 1688, 1692.  Moreover, the
district court gave the jury a mistaken identity instruction.  Pet.
App. 8.  Finally, there was "overwhelming evidence" of petitioner's
guilt, including his presence and the use of his van at the drug buys
on May 13, 1987 and July 13, 1987.  Pet. App. 7, 8.  Petitioner's
fact-bound claim does not warrant further review.

   4. Finally, petitioner contends (Pet. 33-39) that he was prejudiced
because he was unable to call Daniel Taglia, who had pleaded guilty in
the case and was awaiting sentencing, as a defense witness.
Petitioner asserts that Taglia invoked his Fifth Amendment privilege
against compulsory self-incrimination after the prosecutor refused to
restrict his cross-examination of Taglia to "nonincriminating areas"
and declined to offer Taglia immunity.

   Petitioner cites no authority for the proposition that a prosecutor
should agree to handicap his exploration of a witness's statements or
credibility on cross-examination, or that the trial process will be
aided by such a limitation.  Nor is petitioner on firmer ground in
claiming that Taglia should have been compelled to testify or that the
government should have granted Taglia immunity.  "(T)he Sixth
Amendment right of an accused to compulsory process to secure the
attendance of a witness does not include the right to compel the
witness to waive his Fifth Amendment privilege.  Nor is an accused
entitled to compel a prosecutor to grant immunity to a potential
defense witness to get him to testify." United States v. Paris, 827
F.2d 395, 399 (9th Cir. 1987) (internal quotation marks omitted);  see
also Diggs v. Owens, 833 F.2d 439, 444 (3d Cir. 1987), cert. denied,
485 U.S. 979 (1988);  United States v. Thornton, 733 F.2d 121, 125
(D.C. Cir. 1984).  It is widely agreed that the decision to grant
immunity is a responsibility only of the Executive Branch.  See, e.g.,
Pillsbury Co. v. Conboy, 459 U.S. 248, 261 (1983);  United States v.
Pennell, 737 F.2d 521, 526-528 (6th Cir. 1984), cert. denied, 469 U.S.
1158 (1985);  United States v. Turkish, 623 F.2d 769, 771-777 (2d Cir.
1980), cert. denied, 449 U.S. 1077 (1981).  Petitioner failed to make
any showing that Taglia had evidence that would have exculpated
petitioner if Taglia had been compelled to testify;  at most, Taglia's
testimony would have tended to minimize his own involvement in the
conspiracy even though he had already pleaded guilty.  See Pet. 34-35.
 There is therefore no basis for any claim that the prosecutor's
failure to grant immunity for Taglia denied petitioner a fair trial.
Compare Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d
Cir. 1980).

                              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

   JOSEPH C. WYDERKO

      Attorney

   APRIL 1990

   /1/ Since it concluded that Mueller's testimony was admissible to
counter petitioner's blanket denial of wrongdoing, the court saw no
need to address petitioner's argument that he had not placed his
intent in issue when he denied knowing the meaning of the term "Z's"
of cocaine and that the prosecutor had asked about the term without a
good faith basis.  Pet. App. 10 n.4.

   /2/ Petitioner also renews his contention (Pet. 12-16) that
Mueller's testimony should not have been admitted because the
government represented before trial that it would not introduce any
evidence of other bad acts by petitioner under Rule 404(b) during its
case-in-chief.  As the court of appeals explained, however, the
government "lived up to its agreement" because it did not introduce
any evidence under Rule 404(b) during its case-in-chief.  Detective
Mueller's testimony was introduced in rebuttal only after petitioner
denied on direct examination any involvement in the cocaine
transactions.  Pet. App. 9.  As the court of appeals noted (Pet. App.
10), the use of Mueller's testimony was proper at that point because
the government needed to "reestablish the element of intent." Ibid.
See, e.g., United States v. Chaimson, 760 F.2d 798, 806 (7th Cir.
1985).

   /3/ Petitioner also complains (Pet. 19) that the prosecutor
"misused" Mueller's evidence by stating to the jury that Mueller's
testimony showed petitioner to be a liar.  But because Mueller's
testimony was admitted to impeach the credibility of petitioner's
denials of knowledge of the cocaine transactions, it was entirely
proper for the prosecution to argue that the evidence showed that
petitioner was lying when he denied having any knowledge of cocaine
sales at the ABC Lounge.