STACEY LYNN MERKT AND JOHN B. ELDER, PETITIONERS V. UNITED STATES
OF AMERICA

   No. 86-1089

   In the Supreme Court of the United States

   October Term, 1986

   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

            TABLE OF CONTENTS
   Opinions Below
   Jurisdiction
   Questions presented
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. IV) is reported at
794 F.2d 950.  /1/ The opinion of the district court (Pet. App. I;
see Pet. App. II) denying petitioners' motion to dismiss the
indictment is reported at 601 F.Supp. 1574.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 17, 1986
(Pet. App. IV).  A petition for rehearing was denied on September
4,1986 (Pet. App. V).  On October 28, 1986, Justice White extended the
time within which to file a petition for a writ of certiorari to and
including December 3, 1986 (Pet. App. VII).  The petition for a writ
of certiorari was filed on December 2, 1986.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the court of appeals correctly rejected petitioners'
claim that the Free Exercise Clause barred their convictions for
violating federal immigration laws.

   2. Whether the evidence was sufficient to support petitioner
Merkt's conviction for conspiracy to violate the federal immigration
laws.

   3. Whether petitioner's convictions should be reversed because they
were the product of unreliable, coerced testimony.

   4. Whether the district court improperly admitted into evidence
identifications of petitioners based on impermissibly suggestive
photographic identification procedures.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Southern District of Texas, petitioners were convicted of conspiring
to transport illegal aliens within the United States (Count 4), in
violation of 18 U.S.C. 371 and 8 U.S.C. 1324(a)(2).  Petitioner Elder
was also convicted on one count of conspiring to bring into and land
in the United States illegal aliens (Count 1), in violation of 18
U.S.C. 371 and 8 U.S.C. 1324(a)(1), on two counts of landing illegal
aliens (Counts 2 and 3), in violation of 8 U.S.C. 1324(a)(1), and on
two substantive counts of transporting illegal aliens within the
United States (Counts 5 and 6), in violation of 8 U.S.C. 1324(a)(2).
/2/ Petitioner Elder was sentenced to 150 days' imprisonment, to be
served at a designated half-way house.  Petitioner Merkt was sentenced
to 18 months' imprisonment, with all but 179 days suspended in favor
of three years' probation.  The court of appeals affirmed (Pet. App.
IV).

   1. At trial, the government established that in November 1984, two
adult El Salvadoran citizens, one male and one female, and three El
Salvadoran juveniles unlawfully entered the United States.  They
entered by crossing the Rio Grande, and they were met by petitioner
Elder on the American side (Pet. App. IV, at 7998).  Elder then drove
the aliens from the border to Casa Romero, a "refugee sanctuary" that
he directed in San Benito, Texas, where the aliens stayed for
approximately 15 days (ibid.).  While at Casa Romero, the adult male
alien, Jose Andres Mendez-Valle, became acquainted with petitioner
Merkt, who was a staff volunteer there (ibid.).  In mid-November,
Mendez-Valle gave Merkt $100 to purchase bus tickets to Houston for
the five aliens (id. at 8008).  On November 21, 1984, Merkt drove the
five aliens to the bus station in McAllen, Texas, where they boarded a
bus to Houston (id. at 7998, 8008).

   Border Patrol agents subsequently arrested the five aliens en route
to Houston at the Weslaco, Texas, bus station (Pet. App. IV, at 7998).
 The agents gave the aliens Miranda warnings, and after the agents
learned that the aliens might have been smuggled into the country, the
agents took the aliens to McAllen, Texas, for further questioning (id.
at 7998-7999), At McAllen, Mendez-Valle generally described
petitioners Merkt and Elder and he identified both from photographic
lineups (id. at 7999).  He also later identified both petitioners in
court (id. at 7999, 8009).  The adult female alien was unable to
identify either petitioner (id. at 7999).

   2. Prior to trial, the district court denied petitioners' motion to
dismiss their indictment.  Petitioners alleged, inter alia, that the
Free Exercise Clause barred their criminal prosecution because their
religious practices included providing shelter and transportation for
Salvadoran aliens.  Pet. App. I;  Pet. App. II, at 3.  The district
court concluded that the federal government had demonstrated that any
limitations on petitioners' religious beliefs were "essential to
accomplish a compelling governmental interest" and "did not exceed the
least burdensome method of accomplishing the Government's purpose
without infringing First Amendment rights" (Pet. App. I;  Pet. App.
II, at 4, 7-13 (citations omitted)).

   During the trial, petitioners objected to the admission of
Mendez-Valle's testimony in its entirety on the ground that his
testimony was the product of prosecutorial misconduct, including
bribes and threats (Pet. App. III, at iv).  Petitioners also objected
to the admission of Mendez-Valle's identification of petitioners on
the ground that the identification procedures utilized by the
government were impermissibly suggestive (id. at i-iii).  The district
court denied both motions (Pet. App. III).  The court concluded that
the photographic identification procedures used in Mendez-Valle's
identification of petitioner Elder were not impermissibly suggestive
and that procedural problems with the identification of petitioner
Merkt were overcome by other indications of the reliability of the
identifications (id. at i-iii).

   3. The court of appeals affirmed (Pet. App. IV, at 7995-8020).  The
court upheld the district court's rejection of petitioners' Free
Exercise claim and its denial of petitioners' motion to exclude
Mendez-Valle's testimony, including his identification of petitioners.
 The court of appeals also rejected petitioners' claim that the
evidence was insufficient to support their convictions.  Ibid.

                               ARGUMENT

   1. Petitioners claim (Pet. 1-9) that the Free Exercise Clause bars
their convictions for violations of federal immigration laws, because
their assistance to undocumented illegal aliens was prompted by their
religious beliefs.  They claim (id. at 6), moreover, that this Court's
review is warranted because the court of appeals refused to apply a
"strict scrutiny" test in determining the validity of petitioners'
convictions, as required by Wisconsin v. Yoder, 406 U.S. 205(1972),
and Sherbert v. Verner, 374 U.S. 398 (1963).

   Contrary to petitioners' claim (Pet. 9), the court of appeals did
not hold that their convictions are "exempt from constitutional
review" because the relevant criminal statutes concern federal
immigration policy.  Nor did the court of appeals fail to apply
"strict scrutiny" analysis in evaluating the merits of petitioners'
Free Exercise Clause claim.  "(I)n an abundance of analytical
caution," the court of appeals explicitly applied a strict scrutiny
analysis.  Under that test, the court held that the convictions were
valid, after assessing the burden imposed by the criminal statures on
petitioners' religious activities, the government's interest in
uniform law enforcement, and the availability to the government of
less burdensome means of achieving its objectives (Pet. App. IV, at
8002-8006).

   First, the court of appeals correctly noted that the burden on
petitioners' religion was not impermissible, because petitioners had,
in effect, "voluntarily assumed" the burden (Pet. App. IV, at 8003).
Although petitioners' criminal acts may have been prompted by their
sincere "religious motivation" (ibid.), the evidence at trial did not
support the conclusion that their activities were effectively
compelled by their religion, as were the religious activities at issue
in Wisconsin v. Yoder and Sherbert v. Verner.  Hence, contrary to
petitioners' claim (Pet. 2), this case does not involve a
confrontation between federal criminal laws and petitioners'
"non-avoidable duty to assist refugees." As the court of appeals
pointed out (Pet. App. IV, at 8003), petitioners "could have assisted
beleaguered El Salvadorans in many ways which did not affront the
border control laws(,) * * * (but they) chose confrontational, illegal
means to practice their religious views." /3/

   Second, the court of appeals correctly determined (Pet. App. IV, at
8003-8004) that the federal government had demonstrated a "compelling
state interest in the * * * uniform enforcement of border control
laws" and that "engraft(ing) judicial exceptions * * * (for) El
Salvadorans * * * would create a preference utterly at odds with the
fine balancing of national-origin quotas, visa preference tables, and
alien residency requirements promulgated and enforced pursuant to
(federal immigration laws)." Contrary to petitioners' contention (Pet.
10, 12), therefore, the court of appeals described the specific harm
that would be caused in this case by making an exception to the
federal immigration laws.  The court did not fail to identify a
compelling governmental interest supporting the application of the
immigration laws to petitioners' conduct.

   Finally, the court of appeals correctly rejected (Pet. App. IV, at
8004-8005) petitioners' claim that criminalization of the federal
immigration laws was impermissible because the government could
achieve its policy objectives through "less restrictive means," such
as the deportation of unlawful aliens or the confiscation of vehicles
used in unlawful smuggling activities.  As the court of appeals found
(ibid.), the former "catch-me-if-you-can" scheme would not adequately
meet the law's objectives, and the latter option would not diminish
the efforts of individuals such as petitioners to evade the
requirements of federal law.

   2. Petitioner Merkt argues (Pet. 14-17) that her conspiracy
conviction should be reversed because it was based exclusively on her
association with other members of a religious community.  Petitioner
assumes (id. at 14, 15) that the only evidence supporting her
conspiracy conviction was "the fact that she worked at the religious
shelter," because the jury acquitted her on the other counts in the
indictment.  Therefore, she argues, the jury must have accepted her
claim that she was "in no way involved in * * * transportation (of the
illegal aliens)." It is well settled, however, that acquittal by a
jury on certain counts is irrelevant to the inquiry whether the jury's
conviction of a defendant on other counts was supported by sufficient
evidence.  "Sufficiency-of-the-evidence review involves assessment by
the courts of whether the evidence adduced at trial could support any
rational determination of guilt beyond a reasonable doubt.  This
review should be independent of the jury's determination that evidence
on another count was insufficient." United States v. Powell, 469 U.S.
57, 67 (1984) (citations omitted);  see Dunn v. United States, 284
U.S. 390 (1932).  Hence, rather than presume that the jury concluded
that petitioner Merkt did not participate in the transportation of the
illegal aliens, it is proper to consider all the evidence bearing on
the conspiracy count, as the court of appeals did (see Pet. App. IV,
at 7998, 8008).  Whatever the jury's reason for acquitting Merkt on
the substantive counts, it could properly have based her conspiracy
conviction on the evidence that she had participated in the
transportation of the aliens or at least was a party to the
transportation scheme.  This case therefore does not raise the issue
whether Merkt may be convicted for conspiracy merely on the basis of
her association with other members of a religious community.

   3. Petitioners also claim (Pet. 18-23) that their convictions
should be reversed because they were based on coerced testimony that
the government obtained by offering Mendez-Valle the "promise of life"
in exchange for his testimony against petitioners.  As the court of
appeals found (Pet. App. IV, at 8013-8014), however, the facts
presented at trial did not establish that Mendez-Valle's testimony was
the product of prosecutorial misconduct.  Although the government
advised Mendez-Valle that the children who accompanied him across the
border would be reunited with their parents in this country, the
government made no promises in exchange for his testimony (ibid.).
Mendez-Valle, moreover, never claimed that he was coerced into
offering false testimony (id. at 8014).  /4/ The district court did
not err therefore in admitting Mendez-Valle's testimony into evidence.

   4. Finally, petitioners contend (Pet. 24-31) that their convictions
should be reversed because the district court improperly permitted
Mendez-Valle to identify them at trial.  The court of appeals
correctly rejected that claim (see Pet. App. IV, at 8006-8009).  The
photographic lineup that included petitioner Elder was not
impermissibly suggestive.  /5/ Although, as the government admitted in
the court of appeals (id. at 8007), the photographic lineup that
included petitioner Merkt was impermissibly suggestive, Mendez-Valle's
identification was amply supported by other indicators of its
reliability.  That identification was therefore properly admitted.
See Manson v. Brathwaite, 432 U.S. 98, 114 (1977);  Simmons v. United
States, 390 U.S. 377, 384 (1968).

   Petitioners are wrong in asserting (Pet. 25-29) that there was no
evidence supporting Mendez-Valle's identification and that the court
of appeals improperly relied on factors that were the "direct product
of the corrupting process." The court of appeals considered several
factors that significantly bolstered the reliability of Mendez-Valle's
identification:  (1) Mendez-Valle had an ample opportunity and
incentive to focus on Merkt during the relevant period;  (2) he
provided a fairly accurate description of Merkt's physical appearance,
her name, and her car prior to the photographic lineup and only a few
hours after he had seen Merkt;  /6/ and (3) he identified Merkt
positively and unequivocally both prior to and during the trial --
indeed, he testified that he would have been able to identify Merkt in
the absence of the photographic lineup.  See Pet. App. IV, at
8008-8009.  All of these circumstances bore on the reliability of the
identification of Merkt and therefore were properly considered by the
court of appeals.  Because Mendez-Valle's accurate descriptions of
petitioner Merkt's appearance, her name, and her car occurred prior to
the photographic lineup, petitioners' claim that the court of appeals
erroneously relied on the "direct product of the corrupting process"
in admitting the identification is plainly without merit.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   ROBERT J. ERICKSON

      Attorney

   MARCH 1987

   /1/ Petitioners filed three separate versions of an appendix to
their petition for a writ of certiorari.  The contexts of the three
versions are mostly duplicative.  Our references to the appendix to
the petition are to the most inclusive version.

   /2/ Petitioner Merkt was acquitted on two counts of unlawfully
transporting illegal aliens (Counts 7 and 8).

   /3/ Petitioners erroneously assert (Pet. 11 n.5) that the court of
appeals improperly questioned the sincerity of their religious
beliefs.  The court of appeals simply drew the appropriate distinction
between evidence establishing that certain conduct was religiously
motivated and evidence establishing that the conduct was religiously
mandated.  The court concluded that only the former had been
established in this case.

   /4/ Petitioners also erroneously suggest (Pet. 22) that the
government purposefully retained custody of the alien children during
the trial in an effort to coerce Mendez-Valle into testifying for the
government.  As the court of appeals found (Pet. App. IV, at 8013),
the children remained in the government's custody at the time of the
trial only because neither the parents nor a responsible guardian came
forward until after the trial to take custody of them.

   /5/ The photographic lineup that was used for the identification of
petitioner Elder included 11 photographs, seven of which, including a
picture of Elder, were from newspaper clippings.  As noted by the
court of appeals (Pet. App. IV, at 8007), the photographs provided
Mendez-Vallee a fair cross-section of physical appearances;  the seven
newspaper pictures "depicted caucasian males of varying facial and
feature characteristics but of the same general age and description.
Three of the men * * * wore glasses, while two had mustaches."
Mendez-Vallee concluded that petitioner's picture "looked very much
like" the individual who assisted the five aliens across the border
(ibid.).

   /6/ As noted by the court of appeals (Pet. App. IV, at 8008),
Mendez-Valle accurately "described (Stacey) Merkt as a short Anglo
light-skinned woman with curly or kinky yellowish-blonde hair.  He
said her name was phonetically similar to 'Daisy'." As further noted
by the court (id. at 8006-8007), Mendez-Valle also accurately
described petitioner Elder prior to the photographic lineup "as a tall
man with a mustache who possibly wore glasses and had a name
phonetically similar to 'Mr. Mack' or 'Mr. Yack.' (Elder is known as
'Jack')."