JEFFREY WAYNE DUNCAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6929 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 Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-15) is reported at 918 F.2d 647. JURISDICTION The judgment of the court of appeals was entered on November 8, 1990. The petition for a writ of certiorari was filed on January 28, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether police officers were required to obtain arrest and search warrants before searching petitioner and the passenger compartment of his automobile incident to his arrest. 2. Whether petitioner was entitled under Fed. R. Crim. P. 41(e) to the return of funds that were the proceeds of a narcotics transaction. 3. Whether the district court's finding that petitioner possessed a firearm during the commission of a drug offense under Sentencing Guidelines Section 2D1.1(b)(1) (Oct. 1987) was barred by petitioner's acquittal on a substantive count charging him with that offense. STATEMENT Following a jury trial in the United States District Court for the Western District of Kentucky, petitioner was convicted on one count of possessing cocaine with the intent to distribute it and distributing cocaine, in violation of 21 U.S.C. 841(a)(1) (Count 1). /1/ Pet. App. 2. He was sentenced to 21 months' imprisonment and three years' supervised release. Ibid. 1. Petitioner participated in a number of cocaine transactions with Pamela Johnson, a police informant. Petitioner used Johnson as an intermediary for delivering cocaine to a third party, and petitioner provided Johnson with cocaine that she was to distribute. On one occasion, petitioner gave Johnson approximately 30 bags of cocaine to sell. Pet. App. 3. Johnson was supplied money by the Madisonville, Kentucky, police department to purchase cocaine from petitioner. On May 11, 1988, at approximately 1:30 a.m., petitioner arrived at Johnson's house to supply her with one-eighth of an ounce of cocaine in exchange for $380. Johnson was initially able to purchase only one-sixteenth of an ounce for $190 because she had not been advanced enough money by the police. The exchange was made in the front seat of petitioner's automobile. During the transaction, a .357 magnum revolver lay in the front seat between petitioner and Johnson. Pet. App. 3-4. Petitioner returned to Johnson's house at about 11:15 a.m. the same morning to complete the transaction. In the meantime, Johnson contacted the police to obtain more money. The final exchange took place inside Johnson's residence while petitioner's automobile was parked on the street. At that time, Johnson gave petitioner an additional $190 in police funds, and petitioner gave her another one-sixteenth of an ounce of cocaine. Pet. App. 4. /2/ Petitioner was stopped shortly after he left Johnson's house by a Madisonville detective. He was arrested and searched. Petitioner had cocaine in his jacket and two .357 magnum rounds in his pants pocket. The officers also uncovered $397.29 in cash. By matching serial numbers, officers were able to identify $210 of those funds as money that the police had supplied to Johnson. Pet. App. 5. 2. a. On appeal, petitioner argued that the district court erred in imposing an enhanced penalty under Sentencing Guidelines Section 2D1.1(b)(1) (Oct. 1987) for possession of a firearm during a drug offense. Section 2D1.1(b)(1) provided for a two-level upward adjustment in offense level where "a firearm or other dangerous weapon was possessed during commission of the offense." /3/ The district court had found that: The fact that the actual drug transaction took place in the home rather than in the car does not dissuade this Court that the gun was easily accessible to (petitioner) Duncan and that it was, therefore, present during the offense as it was at the first time in the front seat of the car with Ms. Johnson. * * * I believe that the facts that I have found in the context of the indictment demonstrate to me that the -- it is probable that the weapon was connected with the offense. Pet. App. 7-8. Petitioner argued that the district court's finding was inconsistent with his acquittal on the substantive gun charge, and that there was insufficient evidence that he possessed the gun "during the commission of the offense." The court of appeals disagreed, ruling that "enhancement is appropriate if a weapon is found in the residence where the drug transaction occurs, in the automobile that facilitated the drug transaction, or on the person of the defendant or an accomplice." Pet. App. 9. The court also rejected petitioner's claim that his acquittal on the firearms charge should have precluded enhancement under the Guidelines. Id. at 10-11. /4/ b. Petitioner also challenged the district court's refusal to suppress evidence obtained pursuant to the warrantless arrest and the subsequent warrantless search of his person and the interior of his automobile. Specifically, petitioner contended that since the police had probable cause to arrest him and seize his vehicle hours before they actually placed him under arrest, the officers were required absent exigent circumstances to secure a warrant. The court of appeals disagreed. The court found that a law enforcement officer may make a warrantless arrest in a public place even though he could have obtained a warrant after developing probable cause to arrest. Pet. App. 12, citing United States v. Watson, 423 U.S. 411, 426-427 (1986) (Powell, J., concurring). The court also concluded that the warrantless search of the passenger compartment of petitioner's automobile was lawful under New York v. Belton, 453 U.S. 454 (1981), as a search incident to his arrest, and also was independently lawful under the automobile exception to the warrant requirement. Pet. App. 13. 3. In a separate action, petitioner filed a motion in the district court under Fed. R. Crim. P. 41(e) seeking the return of personal property. Petitioner sought the return of unmarked cash that had been seized from him at the time of his arrest. The district court denied the motion and applied the money to petitioner's sentence. The court of appeals affirmed. It noted that, in general, seized property other than contraband should be returned to the rightful owner after criminal proceedings are terminated. The court observed, however, that a defendant's right to the return of lawfully seized property is subject to any continuing interest the government has in the property. The court found that here "the government had an interest in insuring that the monetary penalties imposed as part of the sentence were paid." Pet. App. 15. The court found that $380 of the cash seized constituted the proceeds of the illegal drug sale, and that "by applying the cash to the sentence imposed, the district court essentially allocated the defendant's property for his benefit rather than depriving him of the property altogether." Ibid. That was not an abuse of discretion, the court held. Ibid. ARGUMENT 1. Petitioner first seeks this Court's review of his claim that the warrantless searches of his person and vehicle violated the Fourth Amendment. Pet. 5-8. Petitioner contends that because the police had probable cause to arrest him before the second transaction at Johnson's residence on May 11, 1988, they were required to obtain warrants for his arrest and the search of his vehicle. Those assertions lack merit. It has "long been settled that a warrantless arrest in a public place was permissible as long as the arresting officer had probable cause * * * ." New York v. Harris, 110 S. Ct. 1640, 1643 (1990), citing United States v. Watson, 423 U.S. 411 (1976). See also United States v. Santana, 427 U.S. 38, 42 (1976) (upholding a warrantless arrest on the threshold of a house); Gerstein v. Pugh, 420 U.S. 103, 113-114 (1975) ("(A) policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the adminisrative steps incident to arrest"); Carroll v. United States, 267 U.S. 132, 156 (1925) ("The usual rule is that a police officer may arrest without a warrant one believed by the officer upon resonable cause to have been guilty of a felony"). Neither this Court nor any other federal court has ever required law enforcement officers to obtain arrest or search warrants as soon as they have probable cause to do so. See United States v. Watson, 423 U.S. at 426-427 (Powell, J., concurring). The police were entitled in this case to allow the transaction between petitioner and Johnson to be completed before arresting petitioner. Petitioner also asserts that the automobile exception to the warrant requirement /5/ requires a finding of exigent circumstances, which the court below did not make. He contends that two other courts of appeals require a finding of exigent circumstances, beyond the inherent mobility of any motor vehicle, before a warrantless automobile search may be upheld under the automobile exception. Pet. 8. Neither circuit, however, has so held. United States v. Alexander, 835 F.2d 1406, 1410-1411 (11th Cir. 1988), in dictum simply posed this question, and United States v. Hepperle, 810 F.2d 836, 840 (8th Cir.), cert. denied, 483 U.S. 1025 (1987), at most implied that some minimal showing of exigency may be required. This Court, however, has foreclosed that position in United States v. Johns, 469 U.S. 478, 484 (1985), Michigan v. Thomas, 458 U.S. 259 (1982), and Texas v. White, 423 U.S. 67 (1975). See also United States v. Panitz, 907 F.2d 1267, 1270-1272 (1st Cir. 1990) (collecting cases and concluding that "the existence of probable cause justifies a warrantless seizure and reasonable search of a motor vehicle lawfully stopped in transit or parked in a public place, whether or not exigent circumstances prevailed at either the time of the seizure or the time of the search."). In any event, the search of the passenger compartment of petitioner's automobile was independently lawful as a seach incident to arrest under New York v. Belton, supra. Petitioner was arrested immediately after his vehicle was stopped, and, as petitioner implicity concedes, the bright-line rule of Belton was correctly applied. This case therefore warrants no further review. 2. Petitioner's next claim does not challenge his judgment of conviction. Instead, petitioner seeks review of his contention that the district court erred in denying his post-judgment motion under Fed. R. Crim. P. 41(e) for the return of the unmarked bills seized at the time of his arrest. Pet. 9-14. The facts underlying that claim are as follows: The sum of $397.29 was seized from petitioner at the time of his arrest. Of that amount, $210 was marked police money, and petitioner did not claim that he was entitled to have that amount returned to him. /6/ Petitioner also does not dispute that $50 of the remaining $187.29 could appropriately be applied to the $50 special assessment that was imposed on him under 18 U.S.C. 3013. See Gov't C.A. Br. 10. Petitioner claims that he is entitled to the remaining $137.29 of the funds. Petitioner raised this claim in a post-judgment motion filed in district court. That court denied the motion, and petitioner took an appeal from that order. The court of appeals consolidated petitioner's appeal from the judgment of conviction with his appeal from his Rule 41 motion and upheld the district court. The court of appeals noted that a defendant's right to the return of lawfully seized property is subject to any continuing interest that other parties (such as the government) have in that property. In this case, the government proved beyond a reasonable doubt at trial that petitioner had been paid $380 in prerecorded "buy" money for the cocaine, and it is also true that only $210 of that money was ultimately recovered. For that reason, although the Judgment and Commitment Order was not structured that way, see C.A. App. 21-26, the district court in effect ordered the payment of restitution to the Madisonville Police Department to account for the unrecovered $170 in buy money. See Sentencing Guidelines Section 5E1.1(a). It was not an abuse of discretion for the district court to apply the remainder of the funds to cover the police payout for the drugs. 3. Petitioner maintains that the district court erred in enhancing his sentence under Sentencing Guidelines Section 2D1.1(b)(1) (Oct. 1987) on the ground that petitioner possessed a firearm during the commission of a drug offense. Pet. 14-18. Petitioner argues that the enhancement was improper because he was acquitted at trial on the substantive firearms charge. That claim lacks merit. It is well settled that at sentencing a district court has broad discretion to determine what information to consider and to decide what weight to give to that information. As this Court has explained, a sentencing judge may "conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446 (1972). The Federal Rules of Evidence are expressly made inapplicable to sentencing hearings. Fed. R. Evid. 1101(d)(3). Moreover, under the Sentencing Reform Act of 1984, 18 U.S.C. 3551-3742 and 28 U.S.C. 991-998, all reliable evidence is admissible at sentencing. The Act specifically provides that "(n)o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. 3661. Under the former version of Section 3661 the courts had consistently held that even illegally seized evidence and reliable hearsay could be considered at sentencing. See e.g., United States v. Roberts, 445 U.S. 552, 556 (1980); United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984), cert. denied, 471 U.S. 1104 (1985); United States v. Lee, 540 F.2d 1250 (4th Cir.), cert. denied, 429 U.S. 894 (1976). In addition, it was well settled that a sentencing court could consider evidence concerning a crime for which the defendant had not been convicted, e.g., Williams v. New York, 337 U.S. 241, 244 (1949); for which his conviction had been later reversed on appeal, e.g., United States v. Atkins, 480 F.2d 1223, 1224 (9th Cir. 1973); or for which the defendant had been acquitted at trial, e.g., United States v. Funt, 896 F.2d 1288, 1300 (11th Cir. 1990); United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985); United States v. Sweig, 454 F.2d 181, 184 (2d Cir. 1972); see United States v. Cardi, 519 F.2d 309, 314 n.3 (7th Cir. 1975). /7/ The Sentencing Guidelines embrace those principles. Section 6A1.3 of the Guidelines provides that a district court may consider any reliable evidence at sentencing. Sentencing Guidelines Section 6A1.3 (Policy Statement). /8/ If there is a question about the reliability of the information available to the court, the Guidelines endorse the practice of conducting an evidentiary hearing to resolve that question. Ibid. See United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979). Finally, no Guideline provides that evidence cannot be considered on the ground that it concerns an offense of which the defendant was aquitted. Petitioner claims that, because he was acquitted by the jury on the firearms possession charge, the district court erred in enhancing his sentence based on the court's finding that petitioner possessed a firearm during the commission of a drug offense. That argument clearly lacks merit. Petitioner has overlooked the fact that different standards of proof apply at the guilt and sentencing stages. Although the beyond-a-reasonable-doubt standard applies to the resolution of factual questions at trial, the Constitution does not require that the government prove facts to that degree of certainty at the sentencing stage. The preponderance standard satisfies due process for sentencing purposes. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Moreover, an acquittal does not establish that the defendant was "innocent" of the charged crime, or did not commit the charged acts. An acquittal establishes only that the government did not prove the defendant's guilt beyond a reasonable doubt. Dowling v. United States, 110 S. Ct. 668, 672-673 (1990). Accordingly, because of the different standards of proof that apply to the two different stages of a criminal case, an acquittal does not bar a court from considering at sentencing the acts underlying the charge on which the defendant was acquitted. For these reasons, eight courts of appeals have held that the acquittal on a charged crime does not bar a district court from enhancing the defendant's sentence under the Sentencing Guidelines by finding that the defendant committed the conduct in question. United States v. Averi, 922 F.2d 765 (11th Cir. 1991); United States v. Fonner, 920 F.2d 1330, 1332-1333 (7th Cir. 1990); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-182 (2d Cir.), cert. denied, 111 S. Ct. 127 (1990); United States v. Dawn, 897 F.2d 1444, 1449-1450 (8th Cir.), cert. denied, 111 S. Ct. 389 (1990); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir. 1989); United States v. Isom, 886 F.2d 736 (4th Cir. 1989); United States v. Ryan, 866 F.2d 604, 608-609 (3d Cir. 1989); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989). The decision below is consistent with the rulings in those cases. As the court of appeals pointed out, given the lower standard of proof (preponderance of the evidence) that is applicable at sentencing, petitioner's acquittal on the firearms charge still left ample room for the district court to find that petitioner possessed a firearm during his commission of the charged drug offense. Pet. App. 10. That decision, like the other court of appeals decisions cited above, follows directly from this Court's decisions in McMillan and Dowling. Recently, the Ninth Circuit reached the opposite conclusion in United States v. Brady, No. 89-30074 (9th Cir. Mar. 18, 1991). In that case, the defendant was charged with, but was acquitted of, premeditated murder and assault with intent to commit murder. The defendant was convicted of the lesser included offenses of voluntary manslaughter and assault with a deadly weapon. Over a dissent by Chief Judge Wallace, and without discussing or citing this Court's decision in McMillan and Dowling, see slip op. 2766-2770, the panel majority held that the district court erred in considering the defendant's premeditation in sentencing the defendant for the offenses of conviction. In the majority's view, the qestion whether the defendant acted with premediation was resolved in the defendant's favor by the jury's verdict, and "it would pervert our system of justice if we allowed a defendant to suffer punishment for a criminal charge for which he or she was acquitted." Slip op. 2769. Although the Ninth Circuit's decision in Brady is in conflict with the decision of the court of appeals in this case, there is no need to resolve that conflict at this time. The government will soon be filing in the Ninth Circuit a petition for rehearing and a suggestion for rehearing en banc in the Brady case. In light of the fact that the Brady decision is inconsistent with the position taken by eight other circuits and because the Brady panel majority did not distinguish or cite this Court's decision in McMillan v. Pennsylvania and Dowling v. United States, the full Ninth Circuit may decide to reconsider the panel majority's decision or the panel may decide to reconsider its judgment. The question presented by petitioner therefore is not ripe for review at this time. If the Ninth Circuit adheres to the panl majority's ruling in Brady, the issue may then be ripe for review by this Court. /9/ 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 ANDREW LEVCHUK Attorney APRIL 1991 /1/ Petitioner was also charged with carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. 924(c). He was acquitted on that count. Pet. App. 1. /2/ Petitioner's testimony contrasted markedly with Johnson's. He claimed that he was negotiating with Johnson's cousin over the purchase of a nightclub, and that Johnson initiated the cocaine transaction described above. He also testified that the gun in his car belonged to another person and was on the back seat in a bag at all times. Pet. App. 4. /3/ Sentencing Guidelines Section 2D1.1(b)(1) (Nov. 1, 1990) now reads: "If a dangerous weapon (including a firearm) was possessed during commission of the offense, increase by 2 levels." /4/ The court of appeals also rejected petitioner's claim that an enhancement was improper because the indictment was duplicitous, and his argument that the district court abused its discretion in sentencing petitioner at the upper end of the Guidelines range. Pet. App. 11-12. Petitioner does not sek review in this Court of those rulings. /5/ Due to the ready mobility of automobiles and the diminished expectation of privacy therein due to pervasive state regulation, this Court has long recognized an automobile exception to the warrant requirement, permitting warrantless searches and seizures of motor vehicles that are supported by probable cause. See California v. Carney, 471 U.S. 386 (1985); Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925). /6/ Petitioner says that at oral argument in the court of appeals he raised the claim that he was also entitled to the return of the marked buy money, Pet. 9 n.1, but petitioner acknowledges that he did not raise that claim in the district court, Pet. 9. /7/ In fact, evidence underlying a charge of which the defendant was acquitted can be more reliable than hearsay, because (as in this case) the evidence can come from a witness who testifies subject to cross-examination before the sentencing judge. United States v. Sweig, 454 F.2d at 184. /8/ Section 6A1.3 (Policy Statement) provides that: (a) * * * In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. /9/ There is no need for this Court to resolve the conflict with United States v. Rodriguez, 741 F. Supp. 12 (D.D.C. 1990), because the District of Columbia Circuit has yet to speak on this issue.