No.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1983
LAURENCE JOHN LAYTON, APPLICANT
v.
UNITED STATES OF AMERICA
ON APPLICATION FOR A STAY PENDING THE FILING
OF A PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
MEMORANDUM FOR THE UNITED STATES IN OPPOSITION
REX E. LEE
Solicitor General
Department of Justice
Washington, D.C.
(202) 633-2217
—–
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1983
LAURENCE JOHN LAYTON, APPLICANT
v.
UNITED STATES OF AMERICA
ON APPLICATION FOR A STAY PENDING THE FILING
OF A PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
MEMORANDUM FOR THE UNITED STATES IN OPPOSITION
STATEMENT
In an indictment filed in the United States District Court for the Northern District of California on October 9, 1980, applicant was charged with conspiring to murder a Congressman, in violation of 18 U.S.C. 351(d); aiding and abetting the murder of a Congressman, in violation of 18 U.S.C. 351(a) and 2; conspiring to murder an internationally protected person in violation of 18 U.S.C. 1117; and aiding and abetting the attempted murder of an internationally protected person, in violation of 18 U.S.C. 1116(a) and 2. Applicant’s first trial ended in a hung jury and the district court declared a mistrial.
Before the second trial, the government unsuccessfully moved pursuant to Fed. R. Crim. P. 12(d) for an order allowing the government to present at retrial certain statements that were ruled inadmissible during the first trial. The court of appeals
—–
– 2 –
affirmed in part, reversed in part, and remanded (App. Exh.). 1/
On December 6, 1983, the court of appeals denied a petition for rehearing. On December 23, 1983, the court of appeals denied an application for stay of its mandate pending the filing of a petition for a writ of certiorari.
1. The evidence at the first trial is summarized in the opinion of the court of appeals (App. Exh. A2-A6). It showed that Jim Jones was the leader of the People’s Temple, a religious organization composed primarily of American citizens. The People’s Temple had a settlement of approximately 1,200 members, known as Jonestown, located in the Republic of Guyana. In response to allegations of poor living conditions in Jonestown and of residents being detained against their will, Congressman Leo Ryan arranged to visit Jonestown to conduct an official congressional investigation. A group of relatives of Jonestown residents known as the Concerned Relatives Group planned to accompany Ryan (App. Exh. A2).
Jones discussed Ryan’s Impending visit in nightly speeches to Jonestown residents gathered at the Jonestown pavilion. Loudspeakers throughout Jonestown enabled anyone to hear Jones expressing hostility to and concern about Ryan’s expected Investigation. He stated that if Ryan came ’’maybe [his] plane will just fall out of the sky.” Applicant, a member of the Temple’s security force, was observed listening to the broadcasts concerning Ryan’s visit (App. Exh. A2-A3).
On November 17, 1978, the Ryan delegation arrived in Jonestown and began interviewing residents. A number of them, including Monica Bagby, Vern Gosney, and the family of Gerald Parks, decided to leave Jonestown and asked Ryan for his
1/ ”App. Exh.” refers to the decision of the court of appeals attached to applicant’s petition for rehearing and suggestion for rehearing en banc, which he has filed with his application to this Court.
—–
-3-
assistance. Jones and members of the Temple’s leadership apparently became angered when they learned that some residents Intended to leave. Jones attempted to dissuade them and offered Parks $5,000 not to leave (App. Exh. A3).
The next day, departing residents and members of the Ryan party assembled at a truck near the pavilion which was to transport them to the Port Kaituma airstrip. About that time, Jones was observed in conversation with applicant, Joe Wilson and another member of the Temple security force. Applicant then indicated that he also wished to leave Jonestown, and boarded the truck with the others. Applicant’s announced defection concerned some of those who were leaving because they did not trust him and believed he was feigning defection. During a delay in the trip to the airstrip, a member of the People’s Temple attacked Ryan with a knife (App. Exh. A3-A4).
On the way to the airstrip one of the Ryan group bumped against applicant to determine whether he was armed, but felt no weapon. As the truck approached the Jonestown gate, Wilson, a member of the Jonestown security force, boarded the truck. He was armed with a revolver. During the trip to the airstrip, applicant talked with Breidenback [Wesley Breidenbach], another security force member, who was standing next to him. [Eddie] Crenshaw, who previously had been a security force member, drove the truck to the airstrip (App. Exh. A4).
Congressman Ryan had arranged for two planes, a 10-seat Otter and a 6-seat Cessna, to transport the group from the airstrip to Georgetown, Guyana. Applicant insisted on traveling in the smaller plane. 2/ Although a search of applicant before he boarded the Cessna revealed no weapons, applicant used a gun on the airplane. Applicant later claimed that he was given the
2/ The prosecution contends that applicant was to shoot the pilot of the Cessna in the air (App. Exh. A25-A26).
—–
-4-
gun by a Temple member named Poncho [Garry Dartez], but the gun may have been passed to him by Wilson who hugged applicant and put his hand underneath the poncho that applicant was wearing shortly before applicant boarded the plane (App. Exh. A4-A5).
As the Cessna was preparing to take off, a tractor-trailer cut in front of it and moved toward the Otter. A group of People’s Temple members, Including Wilson and Breidenbach, began shooting from the tractor-trailer at the larger plane, hitting people inside and outside the plane. Congressman Ryan, who was standing outside near the Otter, was among those shot and killed. Other people were wounded; some escaped into the jungle (App. Exh. A5).
Hearing gunfire, Parks asked the Cessna’s pilot to stop the plane, which was then moving down the runway, and Bagby urged everyone to leave the plane. Applicant insisted that the plane take off and then took a revolver from his crotch area and shot Bagby and Gosney two times each. He tried to shoot Parks, but his gun misfired. Parks and Gosney struggled with applicant and disarmed him. The occupants of the smaller plane then escaped into the jungle (App. Exh. A5).
Shortly thereafter, when the survivors began to regroup, applicant denied that he shot anyone. However, he subsequently gave a signed, written confession to Guyanese authorities (App. Exh. A5-A6).
2. Among the categories of evidence that were excluded at the first trial and that the government sought, by its Rule 12(d) motion, to have admitted at the retrial were tape recorded statements by Jones to members of the People’s Temple prior to the arrival of the Ryan party. These statements Indicated that Jones believed that the Ryan delegation was hostile to the People’s Temple movement and that its members had lied about the Jonestown community (App. Exh. A10). In addition, the tapes
—–
– 5 –
revealed Jones’s desire to kill Ryan if he came to Jonestown (App. Exh. A10-A11).
The government argued that Jones’s tape recorded statements are admissible either as co-conspirator declarations under Fed. R. Evid. 801(d)(2)(E) or under the “state of mind” exception to the hearsay rule, Fed. R. Evid. 803(3). Additionally, the government took the position that even if the statements are not admissible for their truth, they are admissible to prove that they were made. See Fed. R. Evid. 801(a) and (c).
The district court ruled that the statements are not admissible on any of the grounds urged by the government. Although the court ruled that the government had presented sufficient evidence to establish a prima facie case of conspiracy to kill Congressman Ryan, it concluded that Jones’s statements were not made ”in furtherance of” the conspiracy within the meaning of Rule 801(d)(2)(E).
The court of appeals reversed, holding that the statements furthered the conspiracy because they ”enlist[ed] the crowd into compliance with the imminent murder of Ryan” and ”bolster[ed] the resolve of any in the audience who might already have agreed to help” (App. Exh. A16). In response to applicant’s claim that “the district judge only ruled that there was sufficient evidence to raise a reasonable inference of a conspiracy at the airstrip, not before” (App. Exh. A16), the court noted the district judge’s finding that “the coordinated events at the airstrip could not have been a mere coincidence” and itself concluded that there was “no basis in the record to support a theory that such coordination occurred spontaneously” (App. Exh. A16). However, because it was unclear whether the district court found the evidence sufficient to establish that a conspiracy existed at the time of Jones’s statements, the court of appeals remanded the case for such a finding. In so doing, the court of appeals stated that it did
—–
-6-
not need to reach the government’s alternate arguments supporting admission of the statements (App. Exh. A12).
ARGUMENT
The most important factor bearing on the propriety of granting a stay pending consideration of a petition for a writ of certiorari is whether it appears likely that at least four members of the Court will vote to grant certiorari. See, e.g., Bracy v. United States, 435 U.S. 1301, 1302 (1978) (Rehnquist, J., Circuit Justice); Whalen v. Roe, 423 U.S. 1313, 1316-1317 (1975) (Marshall, J., Circuit Justice); Graves v. Barnes, 405 U.S. 1201, 1203-1204 (1972) (Powell, J., Circuit Justice). No such likelihood exists here.
Applicant contends that in remanding the case for a determination whether the conspiracy to kill Congressman Ryan existed at the time of Jones’s statements, the court of appeals required the district court to employ an incorrect standard of proof. It is true that the formulation used by the Ninth Circuit in determining the admissibility of co-conspirator statements – evidence sufficient to establish a prima facie case of the existence of the conspiracy (e.g., United States v. Miranda-Uriarte, 649 F.2d 1345, 1349 (1981)) – differs semantically from the preponderance of the evidence standard employed by the other circuits. United States v. Nardi, 633 F.2d 972, 974 (1st Cir. 1980); United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert, denied, 397 U.S. 1028 (1970); Government of Virgin Islands v. Dowling, 633 F.2d 660, 665 (3d Cir.), cert, denied, 449 U.S. 960 (1980); United States v. Gresko, 632 F.2d 1128, 1131 (4th Cir. 1980); United States v. James, 590 F.2d 575 (5th Cir.), cert, denied, 442 U.S. 917 (1979); United States v. Regilio, 669 F.2d 1169, 1174 (7th Cir. 1981), cert, denied, 457 U.S. 1133 (1982); United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.
—–
-7-
1978); United States v. Petersen, 611 F.2d 1313, 1327 (10th Cir. 1979), cert, denied, 447 U.S. 905 (1980); United States v. Jackson, 627 F.2d 1198, 1213-1220 (D.C. Cir. 1980). It seems unlikely that this variance in formulation will ever produce different results. In any event, at this juncture the instant case simply does not present that issue, since the court of appeals did not specify the standard to be applied on remand; the court merely noted that the district court had found sufficient evidence to establish a prima facie case of a conspiracy to kill Congressman Ryan (App. Exh. A6, A17). Accordingly, applicant is not precluded by the decision below from challenging the Ninth Circuit rule on remand in the district court or on appeal from the final judgment if he is convicted.
Even if the court of appeals had specifically directed the district court to apply the prima facie standard, the issue raised by applicant would not be presently ripe for review by this Court. 3/ If the district court on remand determines that the government failed to establish the existence of a conspiracy to kill Congressman Ryan at the time of Jones’s statements, or if applicant is acquitted following a trial on the merits, his contention will be moot. If, on the other hand, the district court on remand determines that the government did establish the existence of a conspiracy, and applicant is then convicted and his conviction is affirmed on appeal, he will at that time be able to present his contention to this Court, together with any other claims he may have, in a petition for a writ of certiorari
3/ It is now more than three years since the return of the indictment, and two years since the district court denied the government’s Rule 12(d) motion. Further Interlocutory review at this time would cause additional delay in trial of the charges against applicant.
—–
– 8 –
seeking review of a final judgment against him. Accordingly, review by this Court would be premature at this time.
CONCLUSION
It is therefore respectfully submitted that the application for a stay pending the filing of a petition for a writ of certiorari should be denied.
REX E. LEE
Solicitor General
JANUARY 1984