No. 97-5727

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

VICTOR LUGO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORI
TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR-THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

DEBORAH WATSON
Attorney
Department of Justice
Washington, D.C.  20530-0001
(202) 514-2217

---------------------------------------- Page Break ----------------------------------------

QUESTION PRESENTED

    Whether a jury instruction that an aider and abettor is
legally responsible for the acts of others "that are the natural
and probable consequence" of a criminal venture creates an
impermissible presumption of intent in violation of Sandstrom v.
Montana, 442 U.S. 510 (1979).

(I)

---------------------------------------- Page Break ----------------------------------------

In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-5727

VICTOR LUGO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

    The opinion of the court of appeals (Pet. App. la-4a) is not
reported.

JURISDICTION

    The judgment of the court of appeals was entered on October
7, 1996.  A petition for rehearing was denied on May 29, 1997.
Pet. App. 5.  The petition for a writ -of certiorari was filed on
August 26, 1997.  The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

STATEMENT

    Following a jury trial in the Superior Court of the District
of Columbia, petitioner was convicted of second-degree murder

---------------------------------------- Page Break ----------------------------------------

2

while armed, in violation of D.C. Code  22-2403.1  He was
sentenced to 15 years' to life imprisonment.  The Court of
Appeals for the District of Columbia affirmed.  Pet. App. la-4a.
    1.  Petitioner sold crack cocaine in the 3000 block of 15th
Street, N.W., in Washington, D.C.  On July 8 1992, he flagged
down a jeep driven by Juan Romero, who also sold drugs on 15th
Street, and requested a ride to Southeast Washington.  Petitioner
said that he was going to pick up "one of his boys" and
complained that there was a "new guy" on 15th Street who had
sought to displace his drug business.  Petitioner and Romero
picked up Derek Proctor, one of petitioner's associates, and
returned to the 15th Street neighborhood.  When petitioner told
Proctor that the "new guy" had told him that they could not sell
drugs on 15th Street, Proctor responded  "[W]e'll just go back
and business as usual * * * if he starts something, he'll
get his." Gov't C.A. Br. 2-4.
    Later that afternoon, petitioner encountered Don Andre
Johnson, the " new guy. "  Petitioner asked Johnson what he was
"doing hustling on this block," and smacked him with what
appeared to be a gun.  Proctor then walked up, and the three men
began arguing. Petitioner brushed Proctor's shoulder and

___________________(footnotes)                 

    1  Petitioner was indicted on a charge of first-degree
premeditated murder while armed.  The jury, which was instructed
on that charge-as well as on the lesser-included offense of
second-degree murder while armed, found him guilty of the latter
offense.  The jury acquitted petitioner of possession of a
firearm during the commission of a crime of violence and of
carrying a pistol without a license. Co-defendant Derek Proctor
was tried separately from petitioner and was convicted of first-
degree murder while armed.

---------------------------------------- Page Break ----------------------------------------

3

instructed him to "do it. "  Proctor pulled a pistol from his
waistband, pointed it at Johnson's head, and shot him three
times.  Petitioner shouted, "let's go, " and the two men ran down
the block and into an alley.  As Proctor jumped over a fence, he
dropped his gun.  Petitioner picked it up and told Proctor to
keep running.  Gov't C.A. Br. 4-7.
     2.  Over petitioner's objection, the trial court gave the
following instruction to the jury:

    [Y]ou may find [petitioner] guilty of the crime charged
    in the indictment without finding that he personally
    committed each of the acts that make up the crime. Any
    person who in some way procures, commands, or
    intentionally participates in the commission of a crime
    is said to aid and abet the principal offender.  That's
    the legal term, aid and abet.  Such person, therefore,
    is as guilty of the crime as he would be if he had
    personally committed each of the acts that make up the
    crime.

    Now , to find that [petitioner] aided and abetted in
    committing a crime,  you must find that [petitioner]
    knowingly associated himself with the criminal venture,
    that he participated in that criminal venture as
    something he wishe[d] to bring about, and that he
    intended by his actions to make it succeed.

    [I]t is not necessary that [petitioner] have had the
    same intent that the principal offender had when the
    crime was committed, or that he have intended to commit
    the particular crime committed by the principal
    offender.

    An aider and abettor is legally responsible for the
    acts of other persons that are the natural and probable
    consequences of the criminal venture in which he
    intentionally participates.  And by natural and `
    probable consequences, I mean those consequences which
    were reasonably foreseeable.

Gov't C.A. Br.12 (emphasis added) .

    Petitioner objected to that instruction on the ground that

---------------------------------------- Page Break ----------------------------------------

4

it did not require the jury to find either that he had the same
specific intent as the principal to commit the murder or that he
knew that the principal had such an intent and assisted the
principal in carrying it out.  Petitioner asked the court to
instruct the jury that, to find him guilty as an aider and
abettor, it had to find that, before the shooting, he intended
have Proctor kill Johnson.  The court declined to give the
requested instruction. Gov't C.A. Br. 8-9.
    3.  On appeal, petitioner argued, inter alia, that the
instruction was improper in that it failed to say that an aider
and abettor must have the same mens rea as the principal.
Petitioner also argued, for the first time, that the instruction
unconstitutionally required the jury to presume his intent from
the "natural and probable" consequences of his actions.  The
court of appeals rejected those claims.  Relying on settled
District of Columbia law, the court held that the government was
not required to prove either that petitioner had the same mens
rea as the principal or that he intended the particular crime
committed by the principal.  Rather, the court held, an aider and
abettor is responsible for the acts of others that are the
natural and probable (i.e., reasonably foreseeable) consequences
of the criminal venture in which he intentionally participates.
Pet. App. 2a.  Here, the court held, the evidence was sufficient
to establish not only that petitioner participated in and
associated himself with Johnson's homicide, but also that he was
the actual instigator of the crime.  Pet. App. 3a.

---------------------------------------- Page Break ----------------------------------------

5

    The court rejected petitioner's argument that the reference
in the instructions to the "natural and probable" consequences of
the criminal scheme constituted an impermissible presumption of
criminal intent in" violation of the constitutional principles
recognized in Sandstrom v. Montana, 442 U.S. 510 (1979). "Taken
as a whole, the jury instructions clearly required the government
to prove, beyond a reasonable doubt, [petitioner's] intent to
participate in the criminal venture as an accessory.  The jury
was never instructed that it should presume intent from the
evidence presented.  Rather, the jury was instructed to accept or
reject, as-they saw fit, any evidence offered going to a common
design or plan, or evidence tending to show the natural and
probable or foreseeable consequences of certain acts."  Pet. App.
4a; see also id. at 2a n.2..

ARGUMENT
 
    Petitioner's Sandstrom claim presupposes that, in the
District of Columbia, "the elements of a charged offense are the
same for the accomplice as for the principal" and that the
government was therefore required to prove that petitioner had
"the minimum mens rea of second-degree murder."  Pet. 8. From
those premises, petitioner concludes that the trial court
unconstitutionally permitted the jury to presume his mens rea
from the "natural and probable consequences" of the criminal
scheme (i.e  to threaten Johnson) in which he participated.
Pet. 8-9.  That claim lacks merit because its premises misread
substantive District of Columbia law.  As the court of appeals

---------------------------------------- Page Break ----------------------------------------

6

emphasized, District of Columbia law does not require the
government "to prove that the defendant had the same mens rea as
the principal offender at the time of the offense, or that the
aider and abettor intended the particular crime committed by the
principal.  Rather, * * * as the trial judge correctly instructed
[petitioner's] jury, * * * '[a]n aider and abettor is legally
responsible for the acts of other persons that are the natural
and probable consequences of the criminal venture in which he
intentionally participates.'"  Pet. App . 2 (citations, internal
ellipsis, and some internal quotations omitted) .
    The court of appeals thus reaffirmed that, under District of
Columbia law, an aider and abettor is liable for the' "natural and
probable consequences" of his criminal scheme whether or not he
specifically intends the consequences themselves.  Pet. "App. 2a-
4a.  For that reason, petitioner's Sandstrom claim is without
merit.  Because intent to cause the specific consequences is not
an element of accomplice liability, the trial court's instruction
on "natural and probable consequences, " unlike the instruction at
issue in Sandstrom, see 442 U.S. at 521-524, created no burden-
shifting presumption concerning any element of  the offense.
Petitioner's reliance on cases arising from jurisdictions in
 which the substantive law imposes a more particularized mens rea
requirement on the prosecution  (see, e.g, pet. 7 n.4) is
therefore misplaced.  2
             
___________________(footnotes)

    2 Petitioner claims that, under federal law, see 18 U.S.C.
2, "the accomplice [must] have a `purposive attitude' toward a
charged offense by specifically intending the harm, or acting

---------------------------------------- Page Break ----------------------------------------

7

    Petitioner has not sought certiorari to challenge the court
of appeals' longstanding interpretation of  District of Columbia
law.  See Pet. i (question presented) ; see generally Pet. App. 2a
(citing District of Columbia precedent).  Even if petitioner had
challenged that interpretation, it is "the practice of th[is]
Court to defer to the decisions of the courts of the District of
Columbia on matters of exclusively local concern. " Whalen v.
United States, 445 U.S. 684, 687 (1980) ; see also Pernell v.
Southall Realty, 416 U.S. 363", 366-368(1974).  Moreover,
petitioner does not appear to challenge the constitutionality of
the traditional substantive rule (see generally 2 W. LaFave & A.
Scott, Criminal Law  6.8(b), at 157-158 (1986) ) rendering an
aider and abettor liable for the reasonably foreseeable acts of a
principal whether or nor the aider and abettor" specifically
intended those acts.   See generally Martin v. Ohio, 480 U.S. 228
(1987) (discussing State's broad authority to define elements of
offense); see also Montana v. Egelhoff, .116 S. Ct. 2013, 2022
2023 (1996) (plurality opinion).  Instead, petitioner bases his
argument on the incorrect premise that the District of Columbia
does not follow that traditional rule  See Pet. i (question
presented) .
    Finally, even if petitioner's Sandstrom claim had merit,
this case would be an inappropriate vehicle for addressing it
with knowledge that the principal intends the harm. "  Pet. 5-6.
Even if federal law contained the requirement that petitioner
attributes to it, however, the court of appeals could not have
been clearer in holding that District of Columbia law does not  I
impose such a requirement,  See Pet. App. 2a-3a.

-------------------------------------- Page Break ----------------------------------------

8

because petitioner did not adequately preserve that claim at
trial.  Although petitioner objected to the district court's
instruction on aiding-and-abetting liability, he argued only that
the instruction did not require the jury to find that he had
intended to commit the murder or that he knew that Proctor had
such an intent; he did not argue at trial that the instruction
created an unconstitutional presumption or that it took an
essential element from the jury's consideration in violation of
the Fifth and  Sixth Amendments.   See Gov't C.A. Br. at 38-39.
For that reason, even though the court of appeals did not address
the proper standard of review, petitioner's  Sandstrom claim is
appropriately reviewed only for plain error:  See D.C. Super. Ct.
Crim. R. 52(b); see generally Johnson v. United States, 117 S.
ct. 1544 (1997).  Because petitioner was present at the scene of
the murder and ordered Proctor to "do it," and because the jury's
verdict therefore almost certainly rested on a finding that
petitioner in fact intended to have Johnson murdered,
petitioner's Sandstrom claim, even if it were plausible on its
merits, would not satisfy the stringent plain-error standard.
See Johnson, 117 s. Ct. at 1550; see also Foreman v. United
States, 633 a.2d 792, 795-797 (D.C. 1993).

---------------------------------------- Page Break ----------------------------------------

9

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN
Acting Solicitor General

JOHN C. KEENEY
Acting Assistant Attorney General

DEBORAH WATSON
Attorney

OCTOBER 1997