Opposition — Butler v. United States

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No. 79-1534 JUN 12 1980

DAK, JR., CLERR

—

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

AUGUST BUTLER, PETITIONER

Vv.

UNITED STATES OF AMERICA

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

WADE H. McCrer, JR.

Solicitor General

Puitip B. HEYMANN

Assistant Attorney General

David B. Smiru

Attorney

Department of Justice

Washington, D.C. 20536

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 79-1534

AUGUST BUTLER, PETITIONER

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UNITED STATES OF AMERICA

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 order of the court of appeals (Pet. App. 34) ts

noted at 608 F. 2d 1372 (table).

JURISDICTION

The judgment of the court of appeals was entered on

December 14, 1979. A petition for rehearing was denied

on January 30, 1980 (Pet. App. 35-36). The petition for a

writ of certiorari was filed on March 19, 1980. and is thus

out of time under Rule 22(2) of the Rules of this Court.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the evidence at trial, including identifica-

tion evidence, was sufficient to support petitioner's

conviction.

(1)

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2. Whether the district court erred in failing to admit

an FBI fingerprint report into evidence.

3. Whether the court erred in correcting a

typographical error in the indictment.

4. Whether the indictment was defective in failing to

specify the owner of the stolen money, that it was taken

without the owner’s consent, and that it was “United

States currency.”

5. Whether the court erred in taking judicial notice of

the fact that the Corpus Christi Naval Air Station is a

federal enclave.

6. Whether the government was required to prove that

the weapon used in the robbery was a pistol because the

indictment referred to use of a pistol.

7. Whether the court erred in failing to give a specific

charge on circumstantial evidence.

8. Whether the court’s charge to the jury in accordance

with the language of the statute improperly varied from

the indictment.

STATUTORY PROVISIONS INVOLVED

Section 29.02 of the Texa» Penal Code Ann. (Vernon

1974) provides in pertinent part:

Robbery

(a) A person commits an offense if, in the course

of committing theft as defined in Chapter 31 of this

code and with intent to obtain or maintain control of

the property, he:

(1) intentionally, knowingly. or recklessly causes

bodily injury to another; or

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(2) intentionally or knowingly threatens or

places another in fear of imminent bodily injury or

death.

Section 29.03 of the Texas Penal Code Ann. (Vernon

1974) provides in pertinent part:

Aggravated Robbery

(a) A person commits an offense if he commits

robbery as defined in Section 29.02 of this code, and

he:

(1) causes serious bodily injury to another; or

(2) uses or exhibits a deadly weapon.

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Texas, petitioner was

convicted of aggravated robbery, in violation of 18 U.S.C.

13 (the Assimilative Crimes Act) and Section 29.03 of the

Texas Penal Code. He was sentenced to 12 years’

imprisonment (Pet. App. 33). The court of appeals

summarily affirmed (Pet. App. 34).

The evidence at trial showed that, on August 5, 1978,

petitioner and another black male robbed at gunpoint a

liquor store at the Corpus Christi Naval Air Station.

After tying up Lorraine Boyd, the supervisor at the store,

they absconded with $900. Two minutes later. a customer

freed Ms. Boyd and telephoned the base security officers

(Tr. 8-17, 33). Ruben Cuevas, a guard stationed at the

insiallation’s front gate, heard on his radio that a robbery

had taken place. He was told to be on the lookout for two

black males in a blue car. Shortly thereafter. Cuevas saw

a blue car being driven over the shoulder of the road to

get around other cars stopped at the gate. He ordered the

#%

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black male driver to stop, but the car hurtled at him and

sped away. Cuevas saw a second black male hiding

between the dashboard and the front seat as the car

passed him. Cuevas wrote down the number olf the

vehicle’s license plate, NJP-825 (Tr. 37-39).

Shortly after the robbery, E.C. Miller, who lived near

the Air Station, observed a blue Buick park in his

neighbor McDaniel’s driveway. Two black men got out of

the car and walked away in the direction from which the

car had come. The car was still in the driveway the next

morning when the police arranged to have it towed away

at McDaniel’s request and impounded it (Ir. 52-53, 56-

58). The license number of the car matched that of the car

Cuevas had seen driving away from the Air Station, and

petitioner later admitted to an investigator that the car

belonged to him (Tr. 65-69). Indeed, petitioner came to

claim the car about a week after it had been impounded.

The car was never reported stolen (Tr. 146-147, 153-154).

A search of the car pursuant to a warrant revealed $165

stuffed underneath the driver's seat and various

documents, including petitioner's driver's license and

military dependent identification card (Tr. 73-74).

Both Lorraine Boyd and Ruben Cuevas identified

petitioner in court as one of the robbers (Tr. 18-19, 39).

Boyd had previously picked petitioner's photograph out

of a seven photo array shown to her by the FBI

approximately ten days after the robbery (Ir. 23-28, 78).'

'There is conflicting evidence in the record regarding the degree of

certainty with which Boyd picked out petitioner's photo. When Boyd

attempted to identify the second robber. she selected the picture of a

man not involved in the robbery. She testified that she had told the

agent that her degree of certainty with regard to the identification of

petitioner's photograph had been “five” and that her degree of

certainty regarding the other identification was “nine.” but also said

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ARGUMENT

|. Petitioner generally asserts (Pet. 9) that he is

innocent, but the evidence summarized above is clearly

sufficient to support his conviction.? Specifically, he

contends (Pet. 14-17) that the identification evidence

introduced by the government was insufficient to prove

his guilt, stating (Pet. 14) that thcre was no positive

identification of him by either Boyd or Cuevas. The facts

belie petitioner’s contention, for both witnesses identified

him in court, and Boyd also selected his photograph in a

pretrial photo array identification procedure. Petitioner

does not claim that the photo identification procedure

was improper in any way, and there is no evidence in the

record of any defect in the photo array procedure

employed by the FBI. Thus, petitioner's discussion (Pet.

15-17) of cases dealing with impermissibly suggestive

pretrial identification procedures is irrelevant.

Petitioner also contends that his innocence is establish-

ed by the fact that both Boyd and Cuevas testified that he

was clean shaven on the day of the robbery. whereas he

“was never clean shaven in the last five years” (Pet. 9).

But there is no evidence in the record that petitioner had a

beard or moustache at any time other than the day of the

trial. Similarly, petitioner now seeks to rebut other

evidence against him by claiming that “his car was stolen”

that she may have gotten the “five” and “nine” mixed up (Tr. 23-28).

The FBI agent who showed her the photo array testified that Boyd

had characterized her identification of petitioner's photograph as a

“nine” and the misidentification of the other man as a “five” (Tr. 78-

80).

*Petitioner did not take the stand. The only evidence he put

forward in his defense related to fingerprint identifications. As is

discussed in point 2, infra, that evidence was not exculpatory.

=*

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(Pet. 9). Again, there is no evidence in the record to that

effect, and the record does show that petitioner did not

report his car as stolen.?

2. Petitioner also contends (Pet. 28) that the trial court

improperly excluded an FBI fingerprint report that

tended to exculpate him. This contention is without merit.

Lorraine Boyd, the robbery victim. testified that

petitioner picked up a bottle of brandy in the store and

that the other robber handled a six-pack of beer (Tr. 18-

19, 22). Latent fingerprints were taken from the brandy

bottle and the six-pack and sent to the FBI for analysis.

Working with an incomplete set of petitioner's known

fingerprints, the FBI reported that two fingerprints,

apparently taken from the six-pack of beer. did not match

petitioner’s known prints. The report also said that other

latent prints could not conclusively be compared with the

incomplete set of petitioner's known prints (Ir. 97-99,

112, 117, 127). The report was properly excluded because

it did not tend to exculpate petitioner and might have

confused the jury. See Fed. R. Evid. 403. Since there was

no claim by the government that petitioner had touched

‘Petitioner states (Pet. 17) that the Corpus Christi: police have

pictures of him, not introduced at trial, that prove he was not clean

shaven on the day of the robbery. Petitioner also states (Pet. 23-24)

that his co-workers “know that he was not clean shaven” on the day

of the robbery, and that he has proof, in the form of a long distance

telephone bill, that he reported his car stolen. This evidence is not in

the record, and petitioner has not raised these claims belore. If

petitioner is aware of newly discovered exculpatory evidence, the

proper place to seek relief is in the district court.

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the six-pack of beer, the fact that the latent fingerprints

on it did not match his known prints obviously had no

tendency to establish his innocence.*

3. Petitioner’s remaining claims are insubstantial on

their face and do not require a detailed response here.

a. Petitioner asserts (Pet. 10-14) that the trial court

erred in granting the government’s motion to correct a

typographical error in the indictment. The Assimilative

Crimes Act was incorrectly cited as 18 U.S.C. 3 instead of

18 U.S.C. 13. Petitioner makes no claim that he was

misled by what defense counsel at trial characterized as “a

clerical error” (Tr. 170). He was properly advised as to the

nature of the charges against him. Rule 7(c)(3) of the

Federal Rules of Criminal Procedure specifically provides

that an error in the citation of a statute “shall not be

ground for dismissal of the indictment or information or

for reversal of a conviction if the error or omission did

not mislead the defendant to his prejudice.”

b. Petitioner also contends (Pet. 20-22) that the

indictment was defective in failing to allege specifically

who owned the $900 that was stolen, that the money was

‘United States currency, and that it was taken without the

‘In any event, petitioner was permitted to introduce virtually the

same evidence in another form. The prosecutor agreed that he would

not object to the introduction of expert fingerprint testimony if

petitioner submitted to a complete fingerprinting that might allow a

more informed judgment concerning the other latent prints.

Petitioner did submit to such fingerprinting. and he was then allowed

to call Sergeant Wilson of the Corpus: Christi Police Department to

make an expert comparison. Wilson’s testimony. based on a complete.

set of known fingerprints, was consistent with the conclusions of the

FBI report. He testified that the latent prints found on the beer

cans did not match petitioner's fingerprints, but the prints found on

the brandy bottle were too poor to permit comparison (Tr. 97-99,

118, 123-126, 139-142).

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owner's consent. These omissions do not constitute

defects in the indictment.-The indictment (Pet. App. 31-

32) plainly contained the elements of the offense charged

and informed petitioner of the charges against him as

required by law. See, e.g.. Hamling v. United States, 418

U.S. 87, 117 (1974).

c. Petitioner’s contention (Pet. 17-18) that the district

court erred in taking judicial notice of the fact that the

Corpus Christi Naval Air Station is a federal enclave for

purposes of 18 U.S.C. 13 is frivolous. See. e.g., United

States v. Hughes, 542 F. 2d 246, 248 n.1 (Sth Cir. 1976).

d. Petitioner also contends (Pet. 18-20) that because

the indictment alleged that the deadly weapon used was a

pistol and the government did not prove that the gun used

in the robbery was in fact a pistol.. his conviction should

be reversed. Because the statute requires use or exhibition

of a deadly weapon, not necessarily a pistol. petitioner's

contention is without foundation. In any event, the

evidence at trial was sufficient to support a finding that

the weapon was a handgun. It is most unlikely that the

robbers could have hidden a shotgun on their persons

while they were in the store and still have been able to

pretend to be normal customers.

e. Petitioner’s contention (Pet. 22-23) that he was

entitled to an instruction on circumstantial evidence is

also without merit. Contrary to his assertion (ihid.), there

was indeed direct evidence that he was one of the robbers,

Lorraine Boyd’s testimony. In any event, this Court has

stated that “where the jury is properly instructed on the

standards for reasonable doubt. such an additional

instruction on circumstantial evidence is confusing and

incorrect.” Holland v. United States, 348 U.S. 121, 139-

140 (1954). See also United States v. Clements, 588 k. 2d

1030, 1040 (Sth Cir.), cert. denied. 440 U.S. 982. 441 U.S.

936 (1979).

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f. Petitioner also contends (Pet. 24-28) that because the

charge in the indictment was phrased in the conjunctive, it

was reversible error for the district court to instruct the

jury in the disjunctive.’ This contention is without merit.

Where an offense is worded disjunctively in the statute, as

it is in Section 29.03 of the Texas Penal Code. there is no

error in charging the jury in the disjunctive even if the

indictment is phrased in the conjunctive. See. e.g... United

States v. Duran, 411 F. 2d 275, 278% (Sth Cir. 1969):

Rimerman v. United States, 374 F. 2d 251. 253-254 (8th

Cir.), cert. denied, 387 U.S. 931 (1967).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfuily submitted.

WaAbDE H. McCrer, JR.

Solicitor General

Puitie B. HEYMANN

Assistant Attorney General

Davip B. Smiru

Attorney

JUNE 1980

‘For example, the indictment reads “knowingly aad intentionally

threaten.” while the court’s instruction reads “intentionally or

knowingly threaten.” See Pet. 24.

DOJ-1980-06