DONALD RAY ELLIOTT, PETITIONER V. UNITED STATES OF AMERICA No. 90-6783 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 Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-4a) is reported at 915 F.2d 1455. JURISDICTION The judgment of the court of appeals was entered on October 10, 1990. The petition for a writ of certiorari was filed on January 8, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether during closing argument the prosecutor commented on petitioner's failure to testify. 2. Whether other comments by the prosecutor during closing argument amounted to plain error. 3. Whether a witness's in-court identification of petitioner should have been suppressed. STATEMENT After a jury trial in the United States District Court for the District of New Mexico, petitioner was convicted of bank robbery, in violation of 18 U.S.C. 2113(a). He was sentenced to 210 months' imprisonment, to be followed by three years of supervised release. The court of appeals affirmed petitioner's conviction but remanded for resentencing. Pet. App. 1a-4a. 1. The Northgate branch of the Carlsbad National Bank in Carlsbad, New Mexico, was robbed early in the afternoon on October 26, 1988. The robber wore a baseball cap, a plaid shirt, jeans and boots; he also had a mustache and wore thick-framed eyeglasses. The robber handed a note to the teller, Tamatha White, indicating that he was armed and demanding money. White handed over $3,900 in currency, some of which was bound with rubber bands. Pet. App. 2a; Gov't C.A. Br. 4-5. Less than an hour later, petitioner confessed to committing the robbery to a friend, John Brown, while driving Brown to a hotel. At the hotel, Brown watched petitioner empty currency out of a small duffel bag onto a bed; some of the currency was bound with rubber bands. The next day, petitioner on separate occasions told two other friends, Robert Taylor and Linda West, that he had robbed the bank. Petitioner also confessed to committing the bank robbery to two police officers when he was arrested on another offense on October 30, 1988. Pet. App. 2a; Gov't C.A. Br. 9-10, 12-13. At trial, the bank teller identified petitioner as the bank robber. In addition, several witnesses testified that petitioner wore thick-framed eyeglasses, and their description fit the bank teller's description of the glasses worn by the robber. Further evidence at trial established that, on the afternoon of the robbery, petitioner was wearing clothing matching that worn by the bank robber and shaved off his mustache. Other evidence showed that petitioner had little money the day before the bank robbery but had large amounts of cash afterwards. Pet. App. 2a; Gov't C.A. Br. 3-4, 8-11. 2. Petitioner did not testify at trial, but his girlfriend, Cheryl Broniste, testified on his behalf. Broniste testified that petitioner left their residence four blocks away from the bank shortly before the bank robbery. At the time, petitioner told Broniste that he was going to a gas station to repair a flat tire and to a Western Union office to pick up $3,000 to $5,000 that was being wired by an out-of-state bank. Broniste and two other witnesses testified that petitioner had shown them bank documents or Western Union receipts verifying that he was to receive a large sum of money sometime around the day of the bank robbery. In the government's rebuttal case, however, a Western Union employee testified that no one using petitioner's name had received any funds from Western Union on or near October 26, 1988. Pet. App. 2a-3a; Gov't C.A. Br. 3, 13. 3.a. Immediately after the robbery, Tamatha White, the bank teller, gave the police a description of the robber. Based on White's description, the police created a composite drawing of the suspect. On October 31, 1988, the day after petitioner's arrest, a local newspaper published an article about the bank robbery identifying petitioner as the robber. Along with the article were a reproduction of the composite drawing and a 1973 photograph of petitioner without glasses or a mustache. Pet. App. 3a; Gov't C.A. Br. 5-7; Addendum to Appellant's C.A. Br. 3. Three days later, on November 3, 1988, White was shown a photo spread of seven photographs at the police station. The photo spread included a recent photograph of petitioner with glasses and a mustache. White immediately identified petitioner's photograph as the bank robber. She told the law enforcement officials that she had seen the newspaper photograph identifying petitioner as the robber, but that it did not influence her identification because it did not resemble the robber. Pet. App. 3a; Gov't C.A. Br. 7-8, 28-29; Addendum to Appellant's C.A. Br. 4-7. b. The district court denied petitioner's pretrial motion to suppress White's subsequent in-court identification of petitioner. The court concluded that neither the photo spread nor the 1973 photograph in the newspaper was impermissibly suggestive. The court also concluded, applying the five-factor analysis of Neil v. Biggers, 409 U.S. 188 (1972), that there was no substantial likelihood of a misidentification by White. Gov't C.A. Br. 29-32. 4. The court of appeals affirmed petitioner's conviction. Pet. App. 1a-4a. It rejected petitioner's claim that during closing argument the prosecutor -- by pointing out that no witnesses from Western Union, the out-of-state bank, or the gas station had corroborated Broniste's testimony -- had indirectly commented on petitioner's failure to testify. It also rejected petitioner's claim that other comments of the prosecutor during closing argument were improper. The court "read the entire closing argument of counsel, and (found that) although the argument on both sides was forceful, it was also * * * fair comment." Pet. App. 3a. The court of appeals also upheld the district court's denial of petitioner's motion to suppress White's in-court identification. The court concluded that the newspaper photograph "was not, under the circumstances, 'impermissibly suggestive,' and most certainly 'under the totality of the circumstances' did not violate any of (petitioner's) due process rights." Pet. App. 3a. ARGUMENT Petitioner renews the fact-bound contentions that he advanced in the court of appeals. The court of appeals correctly rejected those contentions, and its decision does not conflict with the decision of any other court of appeals. Further review is therefore unwarranted. 1. Petitioner contends (Pet. 21-26) that during his closing argument the prosecutor improperly commented on petitioner's failure to testify. That contention is incorrect. In Griffin v. California, 380 U.S. 609 (1965), the Court held that a prosecutor's comments on a defendant's failure to testify at trial violated the defendant's Fifth Amendment privilege against self-incrimination. Whether a prosecutor's remarks are proscribed by Griffin depends on the context in which the remarks are made. See United States v. Robinson, 485 U.S. 25, 32-34 (1988). In this case, petitioner does not claim that during closing argument the prosecutor made any direct comment on petitioner's failure to testify. Rather, petitioner claims that the prosecutor commented indirectly by pointing out the lack of evidence supporting petitioner's defense. A prosecutor's reference to the lack of evidence supporting a defense, however, does not violate the Fifth Amendment unless the jury would naturally or necessarily view the remarks as a comment on the defendant's failure to testify. As the court of appeals explained, "(a)s long as the evidence can be solicited other than from the mouth of the accused, it is proper to comment upon the failure of the defense to produce it." Pet. App. 3a (quoting United States v. Gomez-Olivas, 897 F.2d 500, 503 (10th Cir. 1990)). See also, e.g., United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988); United States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir. 1987), cert. denied, 484 U.S. 1068 (1988); United States v. Johnson, 713 F.2d 633, 650-651 (11th Cir. 1983), cert. denied, 465 U.S. 1081 (1984). That principle applies here, as the court of appeals recognized. The jury would not naturally or necessarily have viewed the prosecutor's remark on the absence of evidence supporting the defense as a comment on petitioner's silence. Petitioner's defense -- that he did not rob the bank -- relied on testimony by his girlfriend that, at the time of the robbery, he had gone to the gas station to fix a flat tire and to pick up money at the Western Union office. During closing argument and rebuttal argument, the prosecutor remarked that there was no evidence to corroborate Broniste's testimony in the form of (1) receipts or documents from the gas station or Western Union, or (2) testimony by employees from the gas station or Western Union. /1/ Those remarks made clear that the missing evidence "c(ould) (have) be(en) solicited other than from the mouth of the accused." Gomez-Olivas, 897 F.2d at 503. 2. Petitioner also renews his challenges (Pet. 26-36) to other comments by the prosecutor during closing argument. The court of appeals properly rejected those challenges. As the court of appeals recognized, since the challenged comments "were not objected to (by petitioner) in the district court" (Pet. App. 3a), they could be reviewed only for plain error. "(T)he plain-error exception to the contemporaneous-objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Young, 470 U.S. 1, 15 (1985) (citation omitted). Petitioner's challenge falls far short of satisfying the requirements for applying the exception. a. There is no merit in petitioner's assertions (Pet. 26-29, 32-33) that the prosecutor distorted the burden of proof, vouched for the credibility of the government witnesses, and impugned the integrity of defense counsel during his rebuttal argument. In closing argument, defense counsel challenged the reliability of the bank teller's identification. He also vigorously attacked the credibility of John Brown, Linda West, and Robert Taylor, government witnesses who had seen petitioner with large amounts of cash after the robbery and to whom petitioner had admitted robbing the bank. Defense counsel asserted that these three witnesses were lying and had "cut deals" with the government in exchange for their testimony. Gov't C.A. Br. 14. Defense counsel also suggested that Brown was the bank robber because he fit the robber's description and knew details of the bank robbery. Ibid. Defense counsel asserted that the police officers to whom petitioner confessed were also lying in order to obtain a conviction. Id. at 13; see also id. at 19-20; Pet. 18. In his rebuttal argument, the prosecutor responded that the bank teller "gave the answer that she believed was a true answer" when she identified petitioner as the bank robber at trial. Pet. 18. He also argued: (T)here is an old adage (that) * * * (w)hen the facts are not on your side you blame the police. You accuse John Brown. You blame somebody else of robbing the bank. Pet. 18; Gov't C.A. Br. 20. The prosecutor later added: "Linda West didn't rob the bank. John Brown didn't rob the bank, and that's why she (sic) is not on trial. The only person who robbed the bank and the only person on trial is this defendant * * *." Pet. 18-19. The court of appeals correctly held that "none (of the prosecutor's remarks) constitutes such plain error as would dictate reversal." Pet. App. 3a. The prosecutor's rebuttal was clearly an "invited response" (United States v. Young, 470 U.S. at 13) to defense counsel's attacks on the credibility of the government's witnesses and to his suggestion that Brown, not petitioner, was the bank robber. The prosecutor's rebuttal was reasonably geared to respond to the provocation. Moreover, even if the rebuttal went beyond what was strictly necessary, it caused petitioner no prejudice. First, any possible prejudice was mitigated by the district court's jury instructions. As petitioner acknowledges (Pet. 17), the district court instructed the jury that it was not to draw any inferences from petitioner's failure to testify, that petitioner had no duty or burden to call any witnesses or produce any evidence, and that the arguments of counsel were not evidence. See also Gov't C.A. Br. 21. Second, the evidence of petitioner's guilt was overwhelming. On this record, it is clear that the prosecutor's remarks did not undermine the fairness of the trial. See Darden v. Wainwright, 477 U.S. 168, 182 (1986); United States v. Young, 470 U.S. at 19-20. b. Petitioner argues (Pet. 29-31) that he was deprived of a fair trial because during closing argument the prosecutor misstated some evidence and referred to evidence not in the record. In the court of appeals, the government conceded that the prosecutor had referred to two pieces of evidence that had not been introduced into evidence and that indirectly corroborated John Brown's testimony about petitioner's confession to him. Gov't C.A. Br. 22-24. The court of appeals nevertheless concluded that "(a)ny misstatement of the evidence by the prosecutor was not of such proportion as to dictate reversal." Pet. App. 3a. Petitioner's fact-bound assertions to the contrary do not warrant this Court's review. 3. Finally, petitioner contends (Pet. 36-39) that the bank teller's in-court identification should have been suppressed because it was tainted because she saw the newspaper photograph of petitioner published five days after the bank robbery. Pet. 36-39. This contention is meritless. "(C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968). Thus, two conditions must obtain to warrant reversal: The procedure must be impermissibly suggestive, and it must pose a "substantial likelihood of irreparable misidentification." Ibid. In Neil v. Biggers, 409 U.S. 188, 199 (1972), the Court held that the "totality of the circumstances" must be examined to determine whether an impermissibly suggestive identification procedure gives rise to a substantial likelihood of misidentification. The factors to be examined are (1) the witness's opportunity to view the criminal at the time of the crime, (2) the witness's degree of attention at that time, (3) the accuracy of any prior description of the suspect given by the witness, (4) the witness's level of certainty when making the pre-trial identification, and (5) the elapsed time between the crime and that identification. 409 U.S. at 199-200; see also Manson v. Brathwaite, 432 U.S. 98, 114-116 (1977). The court of appeals correctly upheld the district court's ruling that there was no impermissibly suggestive viewing here. The bank teller testified that the 1973 photograph of petitioner accompanying the newspaper article did not resemble the robber. Pet. App. 3a. The district court also found "remarkable differences" between that photograph of petitioner and the composite drawing based on the teller's description of petitioner shortly after the robbery. Gov't C.A. Br. 31. Petitioner provides no basis for setting aside the lower courts' determinations that the photograph was not impermissibly suggestive. The lower courts were also correct in determining that, in any event, the fact that the teller saw the 1973 photo in the newspaper did not give rise to a substantial likelihood of misidentification. Pet. App. 3a; Gov't C.A. Br. 31-32. The bank teller observed the robber at very close range for up to two minutes. Based on the training she had received during her employment, the teller paid special attention to the robber's features. She gave an accurate description of the robber to the police officers shortly after the robbery and before she saw the newspaper photograph. Indeed, the district court noted that there was a "remarkable resemblance" between the composite drawing of the suspect created from the teller's description and the recent photograph of petitioner selected by the teller when she viewed the photo spread. Gov't C.A. Br. 32. Moreover, the teller immediately identified the up-to-date photo of petitioner in the photo spread, suggesting a high degree of certainty. Finally, seven to eight days between the occurrence of the robbery and her identification of petitioner at the police station did not amount to a significant delay. Under these circumstances, no realistic risk of misidentification resulted from the pretrial identification procedure. See Neil, 409 U.S. at 199-200. CONCLUSION The petition for a writ of certiorari should be denied Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney APRIL 1991 /1/ The prosecutor stated in his closing argument (Gov't C.A. Br. 17): (Broniste) testified * * * that (petitioner) went to fix a flat tire. There was no evidence, no receipt with regard to the flat tire. There was no * * * gas station mechanic who came in and said, "yeah, this guy came in to my shop and I fixed his flat tire. Yeah, it was about Wednesday. It was about 1:30 in the afternoon." Petitioner did not object to that argument. In his closing argument, defense counsel argued that the money petitioner was carrying on the day of the robbery did not come from the robbery. Defense counsel noted that the testimony by the Western Union employee was only that no money was received at the Western Union office by anyone using petitioner's name; thus, that testimony did not exclude the possibility that petitioner received a letter or telegram through the Western Union office notifying him that he could collect money from a bank. Pet. 18. In the rebuttal argument, the prosecutor responded (id. at 17): Now there is this issue about (petitioner) had receipts and he had bank documents. Well, where are they? Bring them in * * *. You heard the testimony of * * * Broniste. She said he was going to Western Union to pick up money. There was no money picked up at Western Union. There is no evidence presented in this case during this trial besides the stipulation of money legally obtained earlier. There is no evidence with regard to any money legally obtained by (petitioner) during the month of October. * * * No evidence to corroborate that fact. Petitioner did object to this portion of the rebuttal argument. The district court overruled the objection, finding that it was a fair response to defense counsel's argument, and that the existence of Western Union or bank documents could have been established without petitioner's testimony. Gov't C.A. Br. 18.