HOLLIS WESLEY SHAW, PETITIONER V. UNITED STATES OF AMERICA No. 89-7413 In The Supreme Court Of The United States October Term, 1990 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 OPINION BELOW The opinion of the court of appeals (Pet. App. A) is reported at 894 F.2d 689. JURISDICTION The judgment of the court of appeals was entered on February 2, 1990. The petition for a writ of certiorari was filed on April 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's post-trial statements were obtained in violation of his rights under the Fifth and Sixth Amendments of the Constitution because he did not sign a waiver of rights form after being advised of his rights to silence and counsel. 2. Whether a witness's in-court identification of petitioner was tainted by pretrial photographic and showup identification procedures. 3. Whether the charge to the jury on reasonable doubt and the presumption of innocence was adequate. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Louisiana, petitioner was convicted on two counts of armed bank robbery, in violation of 18 U.S.C. 2113(d). He was sentenced to concurrent prison terms of 63 months, and to five years of supervised release; in addition, he was ordered to pay restitution of $3,814, and a special assessment of $100. The court of appeals affirmed. 1. On March 8, 1989, a lone gunman wearing a ski mask and a jeans outfit robbed the Peoples Bank and Trust of Poydras, Louisiana. The robber carried a silver-colored pistol. The loss to the bank was approximately $1,858. Gov't C.A. Br. 3. Two days later, on March 10, an individual wearing a ski mask and a jeans outfit robbed the First National Bank of St. Bernard, Louisiana. Surveillance cameras showed the robber removing his weapon from the right rear pocket of his trousers. Gov't C.A. Br. 4. FBI agents and the St. Bernard Sheriff's Office investigated the robberies. One of the tellers at the St. Bernard bank, Denise Madary, revealed that she had observed the robber in the parking lot before he donned his mask. Madary was shown a black-and-white photo spread of six men. Madary did not identify any of the men depicted in the photos as the robber. Petitioner's photo was not among the six in that array. Madary was then shown a group of color photographs that included petitioner's photo. She selected petitioner's photograph, stating that she was 95% certain that he was the robber. To resolve her remaining doubts, she asked to view petitioner in person. Gov't C.A. Br. 4. The FBI conducted a check of calls for a taxicab in the area of the bank at the time of the robbery. They went to the residence of Derrick Mercadel, who had ordered a cab around that time. Mercadel indicated that he called a cab for an individual fitting the physical description of the bank robber. When the taxi did not respond after about twenty-five minutes, petitioner left. Mercadel stated that petitioner returned shortly thereafter, stating that he had lost a white bag. Gov't C.A. Br. 5. While the agents were conversing with Mercadel, petitioner appeared at the residence. Mercadel identified petitioner as the man who had asked him to call the cab earlier in the day. Petitioner, who matched the description given by the bank employees of the robber, was immediately arrested. A search of his person uncovered a loaded silver-colored pistol in the right rear pocket of his trousers. Gov't C.A. Br. 5. During the arrest and search, an FBI agent advised petitioner of his rights to counsel and silence. After being placed in a government vehicle, petitioner was again advised of his rights. This time the agent recited the rights from a printed form that contained room for a suspect to affix his signature to a waiver of those rights. Because petitioner was handcuffed, he was unable to sign the waiver. However, he indicated that he understood his rights and was willing to answer questions. Gov't C.A. Br. 5-6. Petitioner admitted robbing the First National Bank of St. Bernard. He also told his interviewers where he had discarded the ski mask. Petitioner led the FBI agents to a trash receptacle, where the mask was recovered. The agents then drove petitioner to the St. Bernard bank, where teller Madary identified him as the man she had seen in the parking lot just before the robbery. Gov't C.A. Br. 6-7. Petitioner was then taken to the St. Bernard police headquarters. Once again he was advised of his rights and handed a written waiver form. Petitioner declined to sign the form, stating that he could not read or write well. However, he agreed to answer questions. Petitioner proceeded to give specific details of both bank robberies. Gov't C.A. Br. 6-7. ARGUMENT 1. Petitioner alleges (Pet. 5-8) that his admissions should have been suppressed because they were obtained in violation of his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. The district court conducted a voluntariness hearing, after which it credited the testimony given by government witnesses and found that petitioner had been fully advised of his rights and had voluntarily waived them before making the statements he sought to exclude. That fact-bound determination, which the court of appeals found was supported by the record, does not warrant further review by this Court. In any event, petitioner's claim is based solely on the evidence that he never signed a waiver of rights form, although twice presented with such a form. The inability, failure, or even the refusal, to sign a waiver of rights form does not preclude a finding that statements made by a defendant are voluntary. North Carolina v. Butler, 441 U.S. 369, 375-376 & n.5 (collecting decisions from every circuit). The evidence credited by the courts below showed that, although petitioner was not originally given the opportunity to sign the waiver because he was handcuffed, he orally acknowledged his awareness of his rights. Later, petitioner declined to sign the waiver and claimed that he was illiterate. Petitioner does not contend that he was unaware of his rights at that point. On these facts, the court's conclusion that he voluntarily waived his right to remain silent was clearly correct, and does not merit further review. 2. Petitioner contends (Pet. 9-11) that the pretrial identification procedures employed by the government tainted witness Madary's in-court identification of him as the bank robber. He alleges that both the six-person color photo array shown to Madary and the single-person showup were impermissibly suggestive and created a likelihood of irreparable misidentification (Pet. 9-11). These contentions are meritless. Petitioner's complaint regarding the photo array is merely that his photograph was clearer than the other five. The courts below examined the array and rejected this contention. The court of appeals rightly stated that "(h)aving found that the photo array was not impermissibly suggestive, the inquiry as to this procedure ends." Pet. App. A4. In any event, insignificant differences among various photos within a grouping do not render the array impermissibly suggestive. See United States v. Alexander, 868 F.2d 492, 495-496 (1st Cir.), cert. denied, 110 S.Ct. 507 (1989); Cikora v. Dugger, 840 F.2d 893, 897 (11th Cir. 1988); United States v. Whitney, 787 F.2d 457, 459 (8th Cir. 1986). But even if the photo array was suggestive, petitioner's argument is unavailing. The admissibility of identification evidence is governed by a two-step analysis. Convictions based on eyewitness identification following a pretrial identification will be set aside if the identification procedure (1) is impermissibly suggestive and also (2) gives rise to a very substantial likelihood of irreparable misidentification. That standard applies to showups as well as photographic identification procedures. Neil v. Biggers, 409 U.S. 188, 196-199 (1972); Simmons v. United States, 390 U.S. 377, 384 (1968). Biggers requires an examination of the totality of the circumstances to determine whether a procedure that is impermissibly suggestive gives rise to a substantial likelihood of misidentification. The factors to be considered are (1) the opportunity of the witness to view the criminal, (2) the witness's degree of attention, (3) the accuracy of any previous description of the suspect given by the witness, (4) the witness's level of certainty, and (5) the elapsed time between the crime and the identification. 409 U.S. at 199-200; see also Manson v. Brathwaite, 432 U.S. 98, 114 (1977). An examination of each of these factors supports the court of appeals' conclusion that there was no substantial likelihood of misidentification. Madary testified that she watched petitioner attentively when he was in the parking lot. She gave an accurate description of him to the police before the showup. She was 95% certain that the photograph she selected from the array portrayed the bank robber. The photographs were viewed only a half-hour after the robbery and the showup occurred just a few hours later. In these circumstances, the court justifiably concluded that there was no substantial likelihood of misidentification due to possibly suggestive pre-trial procedures. Finally, the evidence of guilt was overwhelming. Therefore, any possible impropriety in the pretrial identification procedures was harmless beyond a reasonable doubt. United States v. Hasting, 461 U.S. 499, 507-509 (1983); United States v. Causey, 834 F.2d 1277, 1287 (6th Cir. 1987), cert. denied, 486 U.S. 1034 (1982); United States v. Watkins, 741 F.2d 692 (5th Cir. 1984). 3. The trial court gave the standard Fifth Circuit pattern charge at the close of the trial, advising the jury that the indictment was not evidence of guilt, that petitioner was presumed innocent and was not bound to produce any evidence, that the government bore the burden of proving guilt beyond a reasonable doubt, and that the failure to meet that standard of proof required the jury to acquit. See Gov't C.A. Br. 16; see also United States v. Walker, 861 F.2d 810, 812 (5th Cir. 1988). Petitioner alleges that the charge was inadequate because it failed to inform the jury that he started off with a clean slate and that the presumption of innocence was sufficient to find him not guilty (Pet. 12-13). Petitioner notes that in Walker the court recommended giving more detailed instructions in the manner desired by petitioner. Petitioner's complaint does not warrant review by this Court. Neither the Fifth Circuit in Walker nor any other court has reversed a conviction because the language desired by petitioner was not included in the closing charge. Thus, petitioner cannot demonstrate the existence of a conflict among the circuits. Nor does petitioner present any other reason for using his case as a vehicle for examining the adequacy of the reasonable doubt and presumption of innocence charges given to the jury in this case. Neither in Walker nor in petitioner's case did the Fifth Circuit hold that the instruction actually given was in any way defective; the court merely recommended a more explicit charge. That expression of preference is not a matter that warrants further review. In fact, the closing charge, examined as a whole, see Francis v. Franklin, 471 U.S. 307, 315 (1985); Cupp v. Naughten, 414 U.S. 141, 147 (1973), fairly advised the jury that unless the government proved guilt beyond a reasonable doubt, a verdict of acquittal was mandatory. The reasonable doubt instruction, coupled with the charge on the presumption of innocence, was sufficient to inform the jury that petitioner was innocent until the jury found that the government had met its burden of proof beyond a reasonable doubt. 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 MERVYN HAMBURG Attorney AUGUST 1990