Opposition Brief — Udey v. United States

a | Supreme Court, U.S.

fm) fp) () FILLED

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Nos. 84-1300, 84-1368, and MAY 23 1985

ALEXANDER L. STEVAS

States zk

Iu the Supreme Comet of the Unite

OCTOBER TERM, 1984

EDWIN C. UDEY, PETITIONER

Vv.

UNITED STATES OF AMERICA.

ARTHUR H. RUSSELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

LEONARD G. GINTER AND NORMA GINTER,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

Department of Justice

Weshington, D.C. 20530

(202) 633-2217

EE ERE ESAS NE IGTEE GR ENN ARORA ATURE AS SRR ER ENE TI RN RE AR NNT RT TOSI A

?

apY®

QUESTIONS PRESENTED

1. Whether the evidence against petitioner Udey

was sufficient.

2. Whether petitioner Udey was prejudiced by

the district court’s rulings with respect to various in-

cidents that occurred at trial.

3. Whether the district court erred in excluding

proof as to whether evidence was destroyed in bad

faith by the government (petitioners Udey and

Russell).

4. Whether petitioner Russell’s concurrent sen-

tences for conspiracy to harbor a fugitive and the

substantive offense of harboring a fugitive violate

the Double Jeopardy Clause.

5. Whether petitioner Russell has standing to seek

the suppression of evidence based on an alleged vio-

lation of petitioner Leonard Ginter’s Miranda rights.

6. Whether evidence seized during a search of

the burned remains of the Ginters’ house, which had

been the scene of a shootout with authorities, should

have been suppressed (petitioners Leonard and

Norma Ginter).

7. Whether the Miranda rights of petitioners

Leonard and Norma Ginter were violated.

8. Whether the district court erred in its evi-

dentiary ruling that petitioners Leonard and Norma

Ginter were not entitled to introduce their post-

arrest statements.

9. Whether petitioners Leonard and Norma Ginter

were entitled to the appointment of counsel of their

choice.

10. Whether the district court abused its discre-

tion in refusing to grant a continuance (petitioners

Leonard and Norma Ginter).

(1)

TABLE OF CONTENTS

Page

a dial ancminiidibedennidenabiniicnanes 2

I eit caishennbunasionnontns 2

ea meniidarenpeinsasananetingn 2

I aarti dleeitiahen annsatiinceindainbeanmnenneninentannnceniens 5

RGR ISERIES SEEN a eRe 23

TABLE OF AUTHORITIES

Cases:

Ake v. Oklahoma, No. 83-5424 (Feb. 26, 1985) _..... 21

Albernaz Vv. United States, 450 U.S. 333 ................. 12, 13

Ball v. United States, No. 84-5004 (Mar. 26,

a cenpsintenemeanee 13, 15

Barker v. Wingo, 407 U.S. 514 ............... sreraaaaeunees 22

Barnes V. United States, 412 U.S. 887 -..................... 12

Blockburger v. United States, 284 U.S. 299 ............ 18, 14

Burks v. United States, 487 U.S. 1 ........................... 6

California v. Trombetta, No. 83-305 (June 11,

ss snceanannstions 12

Callanan v. United States, 364 U.S. 587 —............... 13

Carter v. McClaughry, 183 U.S. 365 —....................... 13

Edwards v. Arizona, 451 U.S. 477 ........... SUNS 15, 19, 20

Fisher v. United States, 425 U.S. 391 -................... 15

Grady v. United States, 715 F.2d 402 —......... 21

Ham Vv. South Carolina, 409 U.S. 524 -....00000000....... 9

Hamling v. United States, 418 U.S. 87 ......... ecacnes 11

Iannelli v. United States, 420 U.S. 770 0000... 18, 14, 15

Illinois Vv. Gates, 462 U.S. 218 ...................... ee. 17, 18

Jackson v. Virginia, 448 U.S. 307 .............. enviia 6

Jackson v. Wyrick, 730 F.2d 1177, cert. denied,

Ee | EERE 19

Jeffers v. United States, 482 U.S. 187 ...................... 13

Liparota v. United States, No. 84-5108 (May 13,

yk tia anbis eller ih Si Eee a aA 6

Luce Vv. United States, No. 83-912 (Dec. 10, 1984) .. 22

(IT)

IV

Cases—Continued : Page

Michigan v. Mosley, 423 U.S. 96 .....................-..------ 19

Michigan Vv. Tyler, 436 U.S. 499 ........................-...--- 16

Mincey V. Arizona, 487 U.S. 385 ........................--..-- 16

Miranda V. Arizona, 384 U.S. 436 -................. 15, 18, 19, 20

Missouri Vv. Hunter, 459 U.S. 359 ............................ 12,138

Morris Vv. Slappy, 461 U.S. 1 ...................-2...-0-00<++-.-- 21, 22

New York v. Quarles, No. 82-1213 (June 12,

I aaa caesarean 19

Ohio v. Johnson, No. 83-904 (June 11, 1984) _....... 12

Pereira v. United States, 347 U.S. 1......................... 13

Pinkerton v. United States, 328 U.S. 640 _.............. 13

Remmer Vv. United States, 347 U.S. 227 ....... ellaiiad 10

Rogers Vv. Lodge, 458 U.S. 618 ............................--.-- 5

Tennessee V. Street, No. 83-2143 (May 13, 1985) .... 10

Thompson Vv. Louisiana, No. 83-6775 (Nov. 26,

I a 16

Ungar Vv. Sarafite, 376 U.S. 576 ...........................-..-- 22

United States v. Apodaca, 666 F.2d 89, cert. de-

NR Ee ane 9

United States v. Archie, 656 F.2d 1253, cert. de-

I i cicemetnnien )

United States v. Armedo-Sarmiento, 545 F.2d 785,

FS) 14

United States v. Austin, 529 F.2d 559 .................... 14, 15

United States v. Bankston, 603 F.2d 528 _.............. 15

United States v. Bissonette, 586 F.2d 73 —.............. 6

United States v. Bosch, 584 F.2d 1113 .................... 14

United States v. Bright, 630 F.2d 804 _.......... 14

United States v. Brown, 591 F.2d 307, cert. denied,

i ali aa adiinlatahitia nina alanis 21

United States v. Cowart, 595 F.2d 1023 —................ 15

United States v. Crosby, 713 F.2d 1066, cert. de-

a eee 21

United States v. DeVincent, 632 F.2d 155, cert.

TE A ed 14

United States v. ve, No. 82-786 (Feb. 28, 1984) .... 5

United States v. Faul, 748 F.2d 1204, petitions for

cert. pending, Nos. 84-1373, 84-6332, and

SERRE CAO REED SPR, Se 3

Cases—Continued : Page

United States v. Fife, 573 F.2d 369, cert. denied,

Ie I I ecceticinteitinsincanecinieeacincennibctinintenibiienatuncaneiin 15

United States v. Giampa, 290 F.2d 83 -................... 6

United States v. Hunt, 749 F.2d 1078, petition

for cert. pending, No. 84-1481 .............................. 10

United States v. Inmon, 568 F.2d 326 ...................... 14

United States v. Johnson, 732 F.2d 379, cert. de-

nied, No. 83-6953 (Nov. 26, 1984) -...................... 22

United States v. Kearney, 560 F.2d 1358, cert. de-

ee NE SR Se 14

United States v. Lopez, 709 F.2d 742, cert. denied,

a eeminteans 16

United States v. Marin, 669 F.2d 73 ..................... 21

United States v. Nichols, 741 F.2d 767, cert. de-

nied, No. 84-985 (Feb. 19, 1985) —...............0........ 13

United States v. Peister, 631 F.2d 658, cert. de-

I a 21

United States v. Penn, 647 F.2d 876, cert. denied,

' Bt & geen 16

United States v. Ricco, 549 F.2d 264, cert. denied,

I IN TI seccciieeishncih cellent a at aia 14

United States v. Salinas-Calderon, 728 F.2d 1298.. 16

United States v. Scott, 678 F.2d 606, cert. denied,

Ra Le 10

United States v. Shelton, 573 F.2d 917, cert. denied,

2s see ES LY SReSneY EN Tee 14

United States v. Singer, 687 F.2d 1135, aff'd, 710

2 CEE ERR Ne 2 VT ENE, Sn ane 17

United States v. Soures, 736 F.2d 87 .................. 21

United States v. Wuagneux, 683 F.2d 1343, cert.

ns, I ese 22

Whalen v. United States, 445 U.S 684 ie are aad 12

Constitution, statutes and rules:

U.S. Const. :

le 17, 18

Amend. V (Double Jeopardy Clause) Aes 12, 15, 20

18 U.S.C. $71 .................... Sl alia 2

ee esidiadingianaiahitteanammedinind 2

VI

Constitution, statutes and rules-—Continued:

Fed. R. Crim. P. 12(b) .........................

Fed. R. Evid. :

I iin ininnsincehaennteanaiein’

EATS

Rule 801 (d) (2) (A) .......

Rule 808 (8) ..........

Rule 804 ...............

Rule 804 (8) (1) .cccccssovsssnssesnnseeennnen

Rule 804‘) (3) .

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1300

EDWIN C. UDEY, PETITIONER

v.

UNITED STATES OF AMERICA

No. 84-1368

ARTHUR H. RUSSELL, PETITIONER

v.

UNITED STATES OF AMERICA

No. 84-6333

LEONARD G. GINTER AND NORMA GINTER,

PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

2

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-

28a)' is reported at 748 F.2d 1231.

JURISDICTION

The judgment of the court of anpeals was entered

on November 7, 1984, Petitions for rehearing were

denied on December 28, 1984 (Udey Pet. App. B1-

B3; Russell Pet. App. 29a; Ginters Pet. App. D1).

Udey’s petition for a writ of certiorari was filed

on February 13, 1985; Russell’s and the Ginters’

petitions were filed on February 26, 1985. The

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

1254(1).

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the Western District of Arkansas, each

petitioner was convicted on one count of conspiracy

to harbor and conceal a fugitive, in violation of 18

U.S.C. 371, and on one count of harboring and con-

cealing a fugitive, in violation of 18 U.S.C. 1071.

Petitioners Udey and Leonard Ginter were each

sentenced to concurrent five-year terms of imprison-

ment. Petitioner Russell was sentenced to a six-

month term of imprisonment and a four-year term

of probation. Petitioner Norma Ginter wes sentenced

to a term of imprisonment of time already served

and a five-year term of probation. The court of ap-

peals affirmed (Pet. App. la-28a).

* Unless otherwise indicated, “Pet. App.” refers to the

appendix to the Russell petition (No. 84-1368). The appendix

to the Udey petition (No. 84-1300) is incomplete in several

respects.

3

The charges in this case involve the harboring and

concealment of Gordon Kahl. Kahl was a tax pro-

tester and a member of an extremist organization

known as Posse Comitatus. In 1977, Kahl was con-

vieted of income tax violations. Following a period

of incarceration, he was released on probation in

1979. It was subsequentiy alleged that Kahl violated

the terms of his probation, and in March 1981 a

United States Marshal made an unsuccessful attempt

to persuade him to surrender voluntarily. Subse-

quent attempts to arrest Kahl also proved un-

successful.

On February 13, 1983, the local sheriff spotted

Kahl in Medina, North Dakota. The United States

Marshal was contacted and a roadblock was set up

to intercept Kahl and his companions. When Kahl’s

group encountered the roadblock, a shootout ensued

in which the United States Marshal and one of his

deputies were killed; in addition, a seccnd deputy

marshal, a county sheriff, and a city police officer

were injured. Kahl escaped, but his associates were

arrested and convicted on various charges arising

from the February 13 shootout See United States v.

Faul, 748 F.2d 1204 (8th Cir. 1984), petitions for

cert. pending, Nos. 84-1373, 84-6332, and 84-6350.

After Kahl escaped, warrants for his arrest on

charges of murder were issued on February 14 and

March 11, 198° * nationwide manhunt for Kahl

was begun, and th. shootout and search were the sub-

jects of extensive media coverage. Faul, 748 F.2d

at 1212; Pet. App. 2a-3a.

On March 13, Kahl moved into the residence of

petitioner Russell in Mountain Home, Arkansas.

Kahl stayed with Russell until May 30, 1983. Dur-

* The foregoing facts were taken from the court’s opinion

in Faul, 748 F.2d at 1207-1210.

Fr Dg

4

ing this period, Kahl had frequent discussions with

Russell and Russell’s daughter, Karen Robertson,” re-

garding the shootout in North Dakota. They also

watched television news accounts of the search for

Kahl. Pet. App. 3a.

While Kahl was staying with Russell, petitioner

Udey visited the Russell residence. On his first

visit, Udey referred to Kahl as a hero. In addition,

on at least two occasions Kahl went to the Udey resi-

dence near Cotter, Arkansas. One of these visits was

initiated when Udey invited Kahl to dinner. Pet.

App. 3a.

In mid-May 19838, petitioners Leonard and Norma

Ginter went to the Russell residence. They had an

FBI wanted poster of Kahl, which they discussed

with him. On May 30, the Ginters and Udey were

again present at the Russell residence. At that time,

there was a discussion that the FBI was “closing

in” on Kahl. Later that day, Kahl moved to the Gin-

ters’ residence near Smithville, Arkansas. Pet. App.

3a.

On June 3, law enforcement authorities went to the

Ginter residence in search of Kahl. A shootout then

occurred, and the Ginters’ home was burned down

in the course of the gunfight. In the charred rubble,

authorities recovered the remains of a rifle similar to

one Kahl had at the Russell residence and a shotgun

from the United States Marshal’s office in North

Dakota that had been missing since the February

13 shootout. In addition, they found the burned re-

mains of a body, which was later identified by the

medical examiner as Gordon Kahl. Pet. App. 3a-4a.

3 Robertson was the government’s principal witness at trial.

5

ARGUMENT

1. Petitioner Udey contends (Pet. 5-22) that the

evidence was insufficient to establish that he knew

that a federal warrant had been issued for Kahl’s ar-

rest. This fact-bound claim was rejected by both

courts below and does not call for further review.

See, e.g., United States v. Doe, No. 82-786 (Feb.

28, 1984), slip op. 8; Rogers v. Lodge, 458 U.S. 6138,

623 (1982).*

In any event, the courts below correctly found that

the evidence was sufficient.’ The only element dis-

puted by Udey is whether he had knowledge that

* As Udey notes (Pet. 5), the district court stated that the

evidence against Udey was not as strong as it was against the

other defendants. The district court specifically concluded,

however, that the evidence was sufficient to support the

jury’s verdict (Sentencing Tr. 24) :

The [c]ourt believes that Mr. Udey was involved in

this * * °,

* * * * *

[T]he jury had no difficulty, apparently, in believing that

Mr. Udey, beyond a reasonable doubt, did the things with

which he is charged. Very frankly, Mr. Udey, the court

has no difficulty believing that either * * *.

In addition, Udey’s five-year sentence indicates the district

court’s assessment of his involvement and culpability in the

harboring scheme. Finally, we note that the district court

entered a judgment of acquittal with respect to Udey’s wife,

Irene, at the close of the government’s case; this determination

by the district court concerning Udey’s wife, and its contrary

determination concerning Udey himself, reinforces the court’s

conclusion that the evidence against Udey was sufficient.

5 Chief Judge Lay dissented from the panel’s decision on

this issue (Pet. App. 25a-28a). In addition, he and three other

judges dissented from the denial of rehearing en banc in

this respect (Udey Pet. App. B1-B3).

6

Kahl was a fugitive because a federal warrant had

been issued for his arrest. However,

‘

rarely would direct proof of knowledge [of the

existence of a warrant] be available. * * *

The knowledge element can be established by

evidence from which the trier of fact “could

properly infer knowledge and guilt beyond a

reasonable doubt.”

United States v. Bissonette, 586 F.2d 73, 77 (8th

Cir. 1978), quoting United States v. Giampa, 290

F.2d 83, 84-85 (2d Cir. 1961) ; cf. Liparota v. United

States, No. 84-5108 (May 138, 1985), slip op. 14.

Viewed in the light most favorable to the govern-

ment,® the evidence adequately supports the jury’s

findings of Udey’s knowledge.

First, there was widespread media coverage of

both the shootout in North Dakota and the subse-

quent search for Kahl. This publicity extended to

the area in Arkansas in which Udey lived. See pages

8-4, swpra; Tr. 185, 199; Gov’t Exhs. 3, 3A. Indeed,

Udey acknowledges (Pet. 17) that he was aware

of rumors and media reports concerning Kahl.

Moreover, Udey’s actions afforded a sufficient basis

for the jury to infer his knowledge that Kahl was a

fugitive. When Udey first met Kahl at the Russell

residence, Udey said to Kahl “[y]ou’re a hero” and

called him by the same nickname that Russell used

(Tr. 295, 308). Following the shootout at the Ginter

residence on June 3, Udey told Karen Robeitson that

Kahl was a “good patriot” (Tr. 325) but had shot

the sheriff (Tr. 326, 406). And even after the June

3 shootout, Udey expressed no surprise about Kahl’s

8 See, e.g., Jackson Vv. Virginia, 443 U.S. 307, 317-319, 324,

826 (1979); Burks v. United States, 4837 U.S. 1, 17 (1978).

RPSL IISE TIES kia a SN OM

7

identity or status as a fugitive. In addition, Udey

wrote the name “Gordon Kahl” in his Bible and

made the notation “Gordon Kahl deiivered” next to

the passage describing St. Peter’s release from

Herod’s prison shortly before his scheduled execu-

tion (Tr. 988-989, 994; Gov’t Exh. 12).

Finally, Udey was closely involved both with Kahl

and with the co-defendants engaged in harboring and

concealing Kahl.’ For example, Udey visited the Rus-

sell residence on more than one occasion while Kahl

was living there and was present on the day that

Kahl leit to move in with the Ginters (Tr. 307, 322).

Likewise, Kahl went to Udey’s residence at least

twice, including once in response to a dinner invita-

tion that Udey made to Kahl and to Russell and the

Ginters (Tr. 308-309, 413; Gov’t Exh. 9). Contrary

to Udey’s contention, this evidence goes well beyond

“mere association” and provides additional support

for the jury’s finding.

In challenging the sufficiency of the evidence, Udey

places great reliance (Pet. 16-20) on an asserted am-

biguity in Robertson’s testimony. As the court of

appeals recognized (Pet. App. 7a-9a), Robertson’s

direct testimony stated that Udey was involved in a

discussion with Kahl and Leonard Ginter about the

fact that the FBI was closing in on Kahl and that

Kahl would have to leave the Russell residence; ® this

testimony provides compelling evidence of Udey’s

7 Udey concedes (Pet. 11) that “there was extremely con-

vincing evidence that some of the conspirators knew of the

warrant [for Kahl’s arrest].”

8 This discussion occurred on the day that Kahl moved out

of the Russell residence and went to live with the Ginters.

8

knowledge that Kahl was a fugitive.’ Moreover,

even if Udey is correct that cross-examination raised

an ambiguity concerning his presence during that

conversation, the jury remained free to credit Rob-

ertson’s direct testimony that he was there. And

at all events, for the reasons discussed above, the evi-

dence was sufficient without regard to this testimony

to allow the jury to infer Udey’s knowledge of, the

existence of an arrest warrant for Kahl.

2. Udey argues (Pet. 28-38) that various inci-

dents at trial constituted prejudicial error. The court

of appeals summarily rejected these claims as being

“without merit” (Pet. App. 24a)."° The decision be-

low is correct, and review by this Court is not

warranted.

a. The first challenged incident involved a draw-

ing, made by Kahl on Russell’s stationery, that con-

tained religious and racial references. Over Udey’s

objection that these references were prc‘udicial, the

drawing was admitted into evidence (Govt Exh. 8).

However, as the government stated in its brief in the

court of appeals (at 24), the drawing was never de-

scribed or shown to the jury. See also Udey Pet. 29-

830. Because the exhibit was never published to the

jury, it could not have prejudiced Udey’s right to a

fair trial.

b. The second incident involved an allegation that

a woman on the jury panel winked at the deputy

marshal during voir dire. Udey complains that he

® Robertson also specifically testified (Tr. 414; see Udey Pet.

19) that Udey “knew who he [Kahl] was and knew he was

there [at the Russell residence].”

1 On this and all of the subsequent questions presented by

petitioners, the decision of the court of appeals was unani-

mous, and no judge voted in favor of rehearing en banc.

9

was required to use a peremptory challenge to remove

that juror and thus could not strike other jurors

whom he deemed unacceptable. The district court

found the winking incident to be insignificant (see

Udey Pet. 31). The trial court has broad discretion

in the selection of jurors, and Udey has not shown

either an abuse of that discretion or an impairment

of his right to a fair trial. See, e.g., United States

v. Apodaca, 666 F.2d 89, 94-95 (5th Cir.), cert. de-

nied, 459 U.S. 823 (1982); United States v. Archie,

656 F.2d 1253, 1259 (8th Cir. 1981), cert. denied,

455 U.S. 951 (1982).

ec. During voir dire, the district court referred to

public accounts alleging that the defendants were tax

protesters. See Tr. 95; see also Udey Pet. 32. Udey

contends that he was not a tax protester and there-

fore was prejudiced by the reference. However, the

district court’s statement was an appropriate means

for eliciting from the venire panel any prejudice that

might exist due to the political beliefs that underlay

Kahl’s crimes and the possible motives of the defend-

ants for harboring him from law enforcement au-

thorities. The court acted well within its broad dis-

cretion in the conduct of the voir dire (see, e.g., Ham

v. South Carolina, 409 U.S. 524, 527-528 (1973) )

and did not deny Udey a fair trial.

d. Udey next argues that the district court erred

in admitting hearsay evidence of statements by Kahl

indicating that he would forceably resist arrest. See

Tr. 222-223; see also Udey Pet. 33. The evidence

was introduced to explain why a marshal had met

with Kahl to discuss his surrender but had not en-

deavored to arrest him. Because this evidence was

not admitted to “prove the truth of the matter as-

serted” (Fed. R. Evid. 801(c)), but instead was used

10

to demonstrate the basis for the marshal’s decision

not to arrest Kahl, Udey’s hearsay objection is with-

out merit. See, e.g., United States v. Hunt, 749 F.2d

1078, 1084 (4th Cir. 1984), petition for cert. pend-

ing, No. 84-1481; United States v. Scott, 678 F.2d

606, 612 (5th Cir.), cert. denied, 459 U.S. 972

(1982); see also Tennessee v. Street, No. 83-2143

(May 138, 1985), slip op. 4-5.

e. Udey also complains that a relative of peti-

tioner Russell’s was observed photographing members

of the jury. Based on its questioning of the two

jurors involved, the district court replaced one with

an alternate and determined that nv other prejudice

had occurred. See Tr. 1252-1266; see also Udey Pet.

34-37. That determination fell well within the dis-

trict court’s discretion to deal with issues of possible

irregularities involving members of the jury. See,

e.g., Remmer v. United States, 347 U.S. 227, 230

(1954).™

3. Petitioners Udey and Russell contend (Udey

Pet. 22-28; Russell Pet. 11-27) that the district court

erred in excluding defense testimony regarding the

government’s alleged bad faith destruction of evi-

dence. This contention was correctly rejected by the

court below.

The manhunt for Gordon Kahl ended when he was

killed by law enforcement officers in 2 shootout at the

Ginters’ residence. During the shootout, the Ginter

house was burned to the ground. The charred re-

mains of Kahl were identified by the medical ex-

aminer from teeth found in the rubble. At trial, pe-

titioners sought to present expert testimony indicat-

1 Relying on the arguments to be made in the petitions of

his co-defendants, Udey also asserts that media publicity and

courthouse security procedures deprived him of a fair trial.

However, the other petitions do not present or discuss this

issue, and therefore it need not be considered by the Court.

11

ing that government agents deliberately set the fire

at the Ginters’ in order to destroy fingerprint evi-

dence that could have been used to make a positive

identification of Kahl. The district court refused tb

admit the proffered testimony.

Initially, as the district court noted (see Pet. App.

21a n.6), the loss of the fingerprints could have aided

the defendants in this prosecution, since it made it

more difficult for the government to establish the

identity of the body found in the Ginters’ residence.

It is highly implausible to claim, as petitioners do,

that the government would weaken its case at trial.

Nor have petitioners demonstrated why the govern-

ment would deliberately destroy evidence showing

whether Kahl, the subject of aa intensive nationwide

search, was still alive and at large.

In any event, as the court of appeals explained

(Pet. App. 2la-22a), petitioners’ offer of proof failed

to establish that the proffered testimony was rele-

vant. At most, petitioner’s submission tended to show

that the authorities caused the fire in the course of

the shootout, not that they deliberately sought to de-

stroy Kahl’s fingerprints. However, the cause of the

fire was neither germane to the issues at trial nor

exculpatory of the defendants.” Accordingly, this

evidence was properly excluded.

As this Court has recognized, a district court “has

wide discretion in its determination to admit and

exclude evidence, and this is particularly true in the

case of expert testimony.” Hamling v. United States,

418 U.S. 87, 108 (1974). Here, petitioners’ proffered

testimony related to an issue entirely collateral to the

charged offenses, which were established at trial by

12 Petitioner Udey concedes (Pet. 22) that there was “sub-

stantial and convincing evidence” that the corpse found in

the Ginters’ residence was that of Gordon Kahl.

12

proof whose sufficiency is unchallenged. In these cir-

cumstances, the district court did not abuse its dis-

cretion in excluding this defense evidence.”

4. Petitioner Russell received concurrent sentences

of six months’ imprisonment, to be followed by four

years’ probation, for the substantive offense of har-

boring a fugitive and for conspiracy to harbor a

fugitive. He contends (Pet. 8-11) that this consti-

tuted multiple punishment in violation of the Double

Jeopardy Clause. The court of appeals properly re-

jected this contention (Pet. App. 9a-ila).”

The Court has made clear that the propriety of

cumulative punishments under the Double Jeopardy

Clause is strictly a matter of legislative intent. See

Ohio v. Johnson, No. 83-904 (June 11, 1984), slip

op. 6 & n.8; Missouri v. Hunter, 459 U.S. 359 (1983) ;

Albernaz v. United States, 450 U.S. 333, 343-344

(1981) ; Whalen v. United States, 445 U.S. 684, 691-

693 (1980). “With respect to cumulative sentences

imposed in a single trial, the Double Jeopardy Clause

does no more than prevent the sentencing court from

prescribing greater punishment than the legislature

18 The cases cited by petitioner are not to the contrary. See

also California v. Trombetta, No. 83-305 (June 11, 1984). In

those cases, the government destroyed documentary or other

tangible evidence that was in its possession or control. In

this case, by contrast, the government did not have custody

of Kahl or the fingerprint evidence. Moreover, the govern-

ment did not act to destroy the evidence of Kahl’s fingerprints ;

rather, the fire occurred in the course of law enforcement ac-

tivity designed to apprehend him. While petitioners may view

that use of force as excessive, it plainly does not constitute

bad faith destruction of evidence in the control of the

government.

4 Because petitioner was given concurrent sentences on the

substantive and conspiracy counts, it is unnecessary for the

Court to consider his double jeopardy claim. See, e.g., Barnes

v. United States, 412 U.S. 837, 848 n.16 (1973).

13

intended.” Missouri v. Hunter, 459 U.S. at 366.

Thus,

the question of what punishments are constitu-

tionally permissible is not different from the

question of what punishments the Legislative

Branch intended to be imposed. Where Congress

intended * * * to impose multiple punishments,

imposition of such sentences does not violate the

Constitution.

Id, at 368, quoting Albernaz, 450 U.S. at 344 (foot-

note omitted).

In applying this standard, the Court “has consist-

ently relied on the test of statutory construction stated

in Blockburger v. United States, 284 U.S. 299, 304

(1932), to determine whether Congress intended the

same conduct to be punishable under two criminal

provisions.” Ball v. United States, No. 84-5004

(Mar. 26, 1985), slip op. 5. Under Blockburger,

“(t]he appropriate inquiry * * * is ‘whether each

provision requires proof of a fact which the other

does not.’” Ball, slip op. 5. The Blockburger test

turns on the statutory elements of the offense and

not on the allegations of the indictment or the gov-

ernment’s proof at trial in a given case. See Alber-

naz, 450 U.S. at 337-338; Jannelli v. United States,

420 U.S. 770, 785 n.17 (1975).

This Court * and the court of appeals * have con-

sistently recognized that a substantive offense and a

© See, e.g., Jeffers Vv. United States, 482 U.S. 187, 156-157

(1977) (plurality opinion) ; Jannelli, 420 U.S. at 777-779, 785-

786 n.17; United States v. Feola, 420 U.S 671, 698-694

(1975) ; Callanan v. United States, 364 U.S. 587, 593-594

(1961) ; Pereira v. United States, 347 U.S. 1, 11-12 (1954);

Pinkerton v. United States, 328 U.S. 640, 648-644 (1946) ;

Carter v. McClaughry, 183 U.S. 365 (1902).

** See, e.g., United States y. Nichols, 741 F.2d 767, 772-773

(5th Cir. 1984), cert. denied, No. 84-985 (Feb. 19, 1985) ;

14

conspiracy to commit that offense are generally dif-

ferent offenses that satisfy the Blockburger test.

Here, conspiracy to-harbor a fugitive involves the

necessary element of an agreement to violate the law,

which is not part of the substantive offense; con-

versely, the substantive offense of harboring a fugi-

tive, unlike the conspiracy offense, requires the ac-

tual consummation of the crime. Thus, these sub-

stantive and conspiracy offenses meet the test of

Blockburger. Moreover, Russell has pointed to noth-

ing in the language, history, or purposes of the

statutes to suggest that Congress intended to de-

part from the settled rule that “separate sentences can

be imposed for the conspiracy to do an act and for

the subsequent accomplishment of that end.” Jan-

nelli, 420 U.S. at 777-778. On the contrary, “[t]he

historical difference between the conspiracy and its

end has led this Court consistently to attribute to

Congress ‘a tacit purpose—in the absence of any in-

consistent expression—to maintain a long-establish J

distinction between offenses essentially different’”’

(id. at 779 (citation omitted) ).'' Accordingly, Rus-

United States v. DeVincent, 682 F.2d 155, 159-160 (ist

Cir. 1980), cert. denied, 450 U.S. 984 (1981); United

States v. Bright, 680 F.2d 804, 818 (5th Cir. 1980);

United States v. Bosch, 584 F.2d 1118, 1119 (1st Cir. 1978) ;

United States v. Shelton, 573 F.2d 917, 918-920 (6th Cir.),

cert. denied, 489 U.S. 827 (1978); United States v. Jnmon,

568 F.2d 326, 329-333 (3d Cir. 1977) ; United States v. Kear-

ney, 560 F.2d 1358, 1365-1367 (9th Cir.), cert. denied, 484

U.S. 971 (1977) ; United States v. Ricco, 549 F.2d 264, 272-2738

(2d Cir.), cert. denied, 431 U.S. 905 (1977) ; United States v.

Armedo-Sarmiento, 545 F.2d 785, 791-792 (2d Cir. 1976),

cert. denied, 480 U.S. 917 (1977).

‘tT United States Vv. Austin, 529 F.2d 559 (6th Cir. 1976),

upon which Russell relies, does not conflict with this analysis.

Austin concerned convictions for bribery and for conspiracy

15

sell’s sentences for the substantive and conspiracy

offenses were not improper.“

5. Russell also argues (Pet. 5-8) that it was

prejudicial error for the district court to admit co-

defendant Leonard Ginter’s statement that he had

harbored Kahl. He argues that the statement was ob-

tained in violation of Ginter’s rights under Miranda

v. Arizona, 384 U.S. 486 (1966), and Edwards v.

Arizona, 451 U.S. 477 (1981).

Russell’s objection to the introduction of Ginter’s

statement is insubstantial. The Fifth Amendment

right against compelled self-incrimination is a “‘per-

sonal privilege” (Fisher v. United States, 425 U.S.

391, 398 (1976)), and “[t]he Court has held repeat-

edly that the Fifth Amendment is limited to prohibit-

ing the use of ‘physical or moral compulsion’ exerted

on the person asserting the privilege” (id. at 397 (em-

phasis added and citation omitted) ). Just as the Fifth

to engage in bribery. In that limited circumstance, the court

concluded that the substantive and conspiracy offenses were

the same because each involved “the same concert of action

or agreement” (529 F.2d at 563). Cf. Jannelli, 420 U.S. at

778, 779, 782-786 (Wharton's Rule). The Sixth Circuit has

confined Austin to that narrow situation in which the sub-

stantive offense, like the conspiracy, entails an agreement as

a necessary element. See United States v. Fife, 573 F.2d 369,

872-3738 (6th Cir. 1976), cert. denied, 480 U.S. 9383 (1977);

see also United States v. Bankston, 603 F.2d 528, 534 n.7 (5th

Cir. 1979) ; United States v. Cowart, 595 F.2d 1023, 1033 n.14

(5th Cir. 1979). Because Russell's offense of harboring Kahl

did not require any agreement or concerted action with his

co-defendants, the decision in Austin is inapposite.

*S There is also no basis for Russell’s suggestion (Pet. 11)

that offenses cannot be brought together in a single prosecu-

tion if they would not be subject to cumulative penalties. See

Ball, slip op. 4-5 & nn.7, 8.

16

Amendment does not protect a person from being re-

quired to incriminate a third party (id. at 398), so

too a third party cannot invoke someone else’s privi-

lege against self-incrimination as a basis for seeking

to suppress evidence obtained in alleged violation of

that nerson’s rights. See, e.g., United States v.

Salin_s-Calderon, 728 F.2d 1298, 1302 (10th Cir.

1984) ; United States v. Lopez, 709 F.2d 742, 745 n.3

(1st Cir.), cert. denied, 464 U.S. 86? (1983); United

States v. Penn, 647 F.2d 876, 884 , oh Cir.), cert.

denied, 449 U.S. 903 (1980). Accordingly, Russell

was not entitled to challenge the validity of Ginter’s

statement under Miranda.

6. Petitioners Leonard and Norma Ginter contend

(Pet. 15-30) that the evidence seized during the

search of their burned-out house should have been

suppressed because the warrant authorizing the

search was issued without probable cause. This claim

does not call for further review.

First, the validity of the search does not depend

upon the challenged warrant. Although law enforce-

ment officials went to the Ginters’ residence to execute

the warrant, no search occurred at that time because

of the gunshots that were fired from inside the house.

Rather, a search was conducted only after the shoot-

out had ended and the building had burned down.

As the court of appeals correctly recognized (Pet.

App. 15a-16a), the entry into the charred remains of

the crime scene was fully justified by exigent cir-

cumstances wholly without regard to the warrant,

and the evidence of Kahl’s body and his rifle, which

were found in piain view, was properly seized. See

Thompson v. Louisiana, No. 83-6775 (Nov. 26, 1984),

slip op. 2, 4; Mincey v. Arizona, 437 U.S. 385, 392

(i978); Michigan v. Tyler, 486 U.S. 499, 509-510

17

?

(1978) ; United States v. Singer, 687 F.2d 1135, 1144

(1982), aff'd in relevant part, 710 F.2d 431, 432

(Sth Cir. 1983) (en banc). Accordingly, even as-

suming that the Ginters retained a reasonable and

legitimate expectation of privacy in the incinorated

rubble of their house, the Fourth Amendment was not

violated.”

In any event, the court of appeals correctly upheld

the warrant ‘ssued by the magistrate for the search

of the Ginters’ residence (Pet. App. 1l2a-l5a).

Briefly stated, the affidavit in support of the warrant

application disclosed information from a reliable in-

formant that the informant had seen Kahl with the

Ginters in a particular color and type of car on May

$0, 1983, four days before the shootout and search

took place. It also stated that the informant’s tip had

been corroborated by aerial surveillance, which showed

that a car of the given description was at the Ginters’

house on the afternoon of June 2 and the morning of

June 3. These facts, viewed in a common-sense fash-

ion in the overall] context, provided a “ ‘substantial

basis for * * * [the issuing magistrate to] conclud[e]

that a search would uncover evidence of wrong-

doing’ ” (Jllinois v. Gates, 462 U.S. 213, 236 (1983)

(citation omitted) ) and demonstrated “a fair prob-

ability that * * * [the evidence sought would] be

found” (id. at 238).”

’ A shoteun was also found during a search on the follow-

ing day. The court of appeals held (Pet. App. 16a) that even

if this search was not supported by exigent circumstances at

the crime scene, any error in the admission of the evidence

was harmless beyond a reasonable doubt. The Ginters have

not challenged this harmless-error ruling.

*” The Ginters contend (Pet. 15-18) that Gates should not be

applied to searches, such as the one in this case, that occurred

18

7. Leonard and Norma Ginter argue (Pet. 31-34)

that certain statements were obtained in violation of

their rights under Miranda v. Arizona, supra, and

therefore should have been suppressed. These argu-

ments do not warrant this Court’s review.

a. When the police arrived at the Ginters’ home,

Norma Ginter was inside. Leonard Ginter was stopped

by the officers outside the house as he was driving

away. At the officers’ direction, Leonard called for

Norma to come outside. When she did so, the officers

asked the Ginters whether theré was anyone else in-

side the house. After they responded that there was

not, the sheriff entered the house. Kahl, who was

hiding inside, shot and killed the sheriff (Tr. 326,

406).

The Ginters claim that their response to the officers

should have been suppressed because they were not

first advised of their Miranda rights. As they con-

cede (et. 32), however, this issue was not presented

in thy motion to suppress, and thus the court of ap-

peals correctly held (Pet. App. 17a) that it was not

preserved under Fed. R. Crim. P. 12(b). In any

event, as the court of appeals noted in the alternative

(Pet. App. 17a n.4) and as petitioners appear to

acknowledge (Pet. 33), the officers’ questions were

proper—and hence the responses were admissible—in

order “to secure [the officers’] safety [and] the safety

before the date of that decision. They acknowledge (Pet. 18),

however, that their position has been rejected by the courts of

appeals and that no conflict exists on the issue. Furthermore,

there is no consideration of unfairness or systemic reliance to

suggest that the Court’s construction of the Fourth Amend-

ment in Gates should be inapplicable here and that the rele-

vant and reliable evidence in question should be excluded at

trial.

:

19

of the public.” New York v. Quarles, No. 82-1213

(June 12, 1984), slip op. 9.

b. Shortly after her arrest on June 3, Norma Gin-

ter was advised of her Miranda rights and invoked

her right to remain silent. The following morning,

she was again advised of her rights and gave a state-

ment, which she acknowledged at the suppression

hearing was not coerced; this statement was not in-

troduced at trial. Four days after her arrest, peti-

tioner was again given Miranda warnings and de-

clined to answer any questions. On June 9, six days

after her arrest, she was once more advised of her

rights and made a second statement. Petitioner con-

tends that this statement, which was admitted into

evidence at trial, violated Miranda and Edwards vy.

Arizona, supra.

The district court found that in each instance peti-

tioner was fully advised of her Miranda rights, that

her waiver of those rights was knowing and intel-

ligent, and that t. e statement she made that the gov-

ernment introduced in evidence was voluntary (Pet.

App. 18a-19a; see also Ginters Pet. 31). Moreover, the

court found that petitioner did not ask to be provided

with counsel but only indicated that she wished to

remain silent; indeed, even in that regard, petitioner

“ ‘never stated that she intended to make no state-

ment ever, but rather equivocally advised the authori-

. ties that she did not want to talk to them at the par-

ticular time’” (Pet. App. 19a). In these circum-

stances, it is clear that the officers scrupulously hon-

ored petitioner’s right to remain silent™ and that

their action in recontacting her, which occurred after

21 See Michigan V. Mosley, 423 U.S. 96, 103 (1975) ; Miranda,

384 U.S. at 479; Jackson Vv. Wyrick, 730 F.2d 1177, 1179

(8th Cir. 1984), cert. denied, No. 83-7000 (Oct. 1, 1984).

20

the passage of a substantial period of time and in-

volved a new set of Miranda warnings, did not vio-

late Edwards.

8. Following their arrests, the Ginters gave vari-

ous statements to the authorities. Some of these

statements were used against them at trial as ad-

missions under Fed. R. Evid. 801(d)(2)(A). The

Ginters contend (Pet. 35-38) that they were entitled

to introduce their other post-arrest statements as de-

fense evidence. :

This claim is without merit. Petitioners’ prior out-

of-court statements that they sought to introduce

were clearly hearsay. Moreover, contrary to peti-

tioners’ contention, the statements were not admis-

sible under the hearsay exception for declarations

against penal interest. See Fed. R. Evid. 804(b) (3).”

As the court of appeals noted (Pet. App. 24a), peti-

tioners’ offers of proof failed to establish that the

statements were inculpatory and hence against penal

interest; indeed, by seeking to introduce them, peti-

tioners presumably believed the statements to be ex-

culpatory rather than incriminating.“ Nor was

22 Petitioners no longer raise the argument, which the court

of appeals rejected (Pet. App. 23a), that certain statements

made several days after the shootout were relevant and ad-

missible as evidence of their existing state of mind or present

sense impression. See Fed. R. Evid. 803(3).

23 Rule 804 further provides that a statement against in-

terest is not admissible unless the declarant is unavailable as

a witness at trial. While a third-party witness’s invocation

of the Fifth Amendment renders him unavailable for pur-

poses of the Rule (see Fed. R. Evid. 804(a) (1)), it is not at

all clear that a defendant who voluntarily elects to exercise his

privilege not to testify should likewise be deemed to be un-

available; unlike the situation of the third-party witness, the

nn A ge

21

there any showing that the statements were necessary

to make fair and complete the post-arrest statements

that the government introduced. See Fed. R. Evid.

106; United States v. Soures, 736 F.2d 87, 91 (8d

Cir. 1984) ; United States v. Crosby, 713 F.2d 1066,

1074 (5th Cir.), cert. denied, 464 U.S. 1001 (1983) ;

United States v. Marin, 669 F.2d 78, 84-85 (2d Cir.

1982). Finally, as the court of appeals held as an

alternative ground for decision (Pet. App. 24a), any

alleged error in the exclusion of these statements was

harmless beyond a reasonable doubt.

9. The Ginters assert (Pet. 39-40) that they were

entitled to select the lawyer to be appointed to repre-

sent them. It is well-settled, however, that a defend-

ant does not have a constitutional right to ap-

po:nted counsel of his choice. See Morris v. Slappy,

461 U.S. 1, 18-14 (1988); Grady v. United States,

715 F.2d 402, 404 (8th Cir. 1983); United States v.

Peister, 631 F.2d 658, 661 (10th Cir. 1980), cert.

denied, 449 U.S..1126 (1981); United States v.

Brown, 591 F.2d 307, 310 (5th Cir.), cert. denied,

442 U.S. 913 (1979); ef. Ake v. Oklahoma, No. 83-

5424 (Feb. 26, 1985), slip op. 13-14. Accordingly,

the court of appeals correctly rejected petitioners’

claim (Pet. App. 22a).

defendant seeking to introduce his prior statement on his own

behalf has control over whether he will testify at trial. Cf.

Fed. R. Evid. 804(a) (1) (last paragraph). The purpose and

overall structure of the Rule suggest that it was designed

to apply to statements of third-party witnesses, not to state-

ments of parties who, in an effort to use their own out-of-court

declarations, make themselves unavailable only in the sense

that they elect not to testify.

22

10. Lastly, the Ginters contend (Pet. 41) that the

district. court abused its discretion in denying them

a continuance of the federal trial so that they could

first be tried on state murder charges arising out of

the June 3 shootout at their house. This claim is un-

availing.

This Court has recognized that trial courts have

“broad discretion * * * on matters of continuances.”

Morris v. Slappy, 461 U.S. at 11; see also, e.g., Ungar

v. Sarafite, 376 U.S. 575, 589 (1964); United States

v. Johnson, 732 F.2d 379, 381 (4th Cir. 1984), cert.

denied, No. 83-6953 (Nov. 26, 1984); United States

v. Wuagneux, 683 F.2d 1343, 1855-1356 (11th Cir.

1982), cert. denied, 464 U.S. 814 (1983). The

exercise of that discretion will be reversed on appeal

only if it is “unreasoning and arbitrary” (Morris v.

Slappy, 461 U.S. at 11). Here, petitioners sought an

essentially unlimited continuance until such time as

the state proceeding had been completed.** Moreover,

they did not represent that they would testify at the

federal trial and were deterred from doing so only

by the pendency of the state charges. Cf. Luce v.

United States, No. 83-912 (Dec. 10, 1984). Espe-

cially in view of the significant public interest in a

prompt resolution of the federal indictment (see, e.g.,

Barker v. Wingo, 407 U.S. 514, 519-521 (1972) ), the

district court did not abuse its discretion in denying

the Ginters’ request for an indefinite continuance.

24 Indeed, at the time the government’s brief was filed in

the court of appeals in this case, the state trial had not yet

taken place (see Gov’t C.A. Br. 22).

se 8m i

23

CONCLUSION

The petitions for a writ of certiorari should be de-

nied.

Respectfully submitted.

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

May 1985

ov. &. GOVERNMENT PRINTING OFFice, 1965 461531 10225

a ee