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.