GEORGE E. MOORE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6423 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. 1a-38a) is reported at 917 F.2d 215. JURISDICTION The judgment of the court of appeals was entered on October 9, 1990. The petition for a writ of certiorari was filed on December 3, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's live-in girlfriend was acting as a government agent when she consented to a search of their residence. 2. Whether petitioner's post-arrest statements to his girlfriend violated his Sixth Amendment right to counsel. 3. Whether the district court abused its discretion in denying petitioner's severance and mistrial motions. 4. Whether the jury instructions constructively amended the indictment. STATEMENT After a jury trial in the United States District Court for the Eastern District of Kentucky, petitioner was convicted of armed robbery of a United States post office, in violation of 18 U.S.C. 2114 (Count 1), and of carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c) (Count 2). The district court sentenced him to consecutive terms of 25 years' imprisonment on Count 1 and five years' imprisonment on Count 2, and he was ordered to make restitution in the amount of $105.82. Pet. App. 39a. The court of appeals affirmed. Id. at 1a-38a. /1/ 1. Early in the afternoon of March 23, 1987, Charles Morse entered the United States Post Office at Waddy in Shelby County, Kentucky. Morse approached the counter and told Postmaster Linda Waites that he wanted to buy stamps. When Waites told him their cost, he remarked that he would have to return to his car for more money, but he did not leave. Instead, Morse looked toward petitioner, who was standing in a corner of the lobby, and repeated his remark. Petitioner thereupon approached the postal window and pointed a gun at Waites, who was two feet away, on the other side of the counter. Gov't C.A. Br. 7. Morse told Waites she was being robbed. He then climbed over the counter and entered the work room, where Judy Mackey, a rural letter carrier, was processing mail. Morse called Mackey over to the counter. Petitioner, gun in hand, came into the work room from the lobby. Petitioner put the gun to Waites's head and said, "Lady, this is real, and I'll kill ya." Waites was terrified. She and Mackey gave petitioner and Morse almost 100 money orders, a quantity of cash, a money order imprinting machine, and a mail bag. Gov't C.A. Br. 8. /2/ Immediately after the robbery, petitioner and Morse met Vonda Jorgensen at the truck stop in Waddy. The two men got into a van with Jorgensen and drove towards Tennessee. The next day, petitioner was driven back from Tennessee to his home in Indiana by his brother John. As they passed through Shelby County, petitioner said he was in trouble. Gov't C.A. Br. 10. On June 16, 1987, postal inspectors questioned petitioner at the state police station in Sellersburg, Indiana. On June 24, 1987, petitioner cashed one of the stolen money orders at a supermarket in Indianapolis, Indiana. On July 7, 1987, after the indictment in the present case was returned, postal inspectors and Detective Charles Maxey of the Indiana State Police arrested petitioner. When arrested, petitioner was in the company of his girlfriend, Beverly Kopp, with whom he shared a house in Pekin, Indiana. Gov't C.A. Br. 11. A day or two later, Kopp asked Detective Maxey to come to the Pekin house. Kopp told Maxey upon his arrival that petitioner had called and told her to deliver money orders hidden at the house to Jeffersonville, Indiana, the next day. The money orders were to be used to pay petitioner's bond. Petitioner had also told Kopp that he would call her at his mother's house to give her further instructions. Kopp told Maxey that the money orders were under a chest-of-drawers in the bedroom she shared with petitioner, and that she and petitioner jointly owned the chest. Maxey retrieved a package containing 19 money orders from beneath the chest. Gov't C.A. Br. 11-12, 20. The next day, petitioner called Kopp at his mother's house to tell her where to deliver the money orders. With Kopp's consent, the police recorded the call. Later, with the assistance of Maxey and federal law enforcement officers, Kopp went to a McDonald's restaurant in Jeffersonville, where she was contacted by the man to whom she was to deliver the money orders. Gov't C.A. Br. 12, 20. 2.a. Petitioner moved to suppress the money orders seized at the residence he shared with Kopp and the statements he made in his telephone conversations with Kopp. After a hearing, and relying on United States v. Matlock, 415 U.S. 164 (1974), a United States magistrate recommended denial of the motion to suppress. With regard to the money orders, the magistrate determined that, as a cohabitant and joint occupant of the room from which the money orders were seized, Kopp gave valid consent to the search. The district court adopted the magistrate's recommendation. Gov't C.A. Br. 21. b. At the close of the government's case-in-chief, the attorney for petitioner's co-defendant Morse gave notice that against the advice of counsel Morse intended to call Vonda Jorgensen, the driver of the getaway van, as a witness. Pet. 6; Gov't C.A. Br. 14-15. /3/ Petitioner moved for a severance; /4/ the motion was denied. Pet. 6. On direct examination by Morse, Jorgensen neither exculpated nor substantially inculpated either defendant. On cross-examination by the government, however, she implicated both defendants in the robbery. Petitioner's counsel cross-examined her at length. Morse then took the stand, exculpated petitioner and himself, and inculpated Jorgensen and two other persons. Morse ascribed Jorgensen's incriminating testimony to her personal animosity toward him. Gov't C.A. Br. 15-16. Petitioner renewed motions for a severance or, in the alternative, for a mistrial, all of which were denied. The district court found that the defenses of petitioner and Morse were not antagonistic, and that Morse's exoneration of petitioner did not present grounds for a severance. Gov't C.A. Br. 14, 16. c. Count 1 of the indictment charged petitioner and Morse with robbing and taking "from the person and presence of Linda Waites money and other property of the United States," and with "us(ing) a dangerous weapon and put(ting) in jeopardy the lives of Linda Waites and rural letter carrier, Judy Mackey" in the course of the robbery. Pet. App. 18a-19a. /5/ The district court began the jury instruction on Count 1 by closely tracking the statutory language, stating (C.A. App. 568): Whoever robs any person having lawful charge, control or custody of any money or other property of the United States and * * * puts in jeopardy the life of such person by use of a dangerous weapon shall be guilty of an offense against the United States. The court then identified four essential elements in the offense. It described the first as "the act or acts of taking from the person and presence of another, money or other personal property of the United States," and the third as "the act of putting in jeopardy the life of any person by the use of a dangerous weapon while engaged in taking the money or other property from the United States." Id. at 568-569. 3. The court of appeals affirmed. Pet. App. 1a-38a. The court rejected petitioner's claim that Kopp was acting as a government agent when she authorized the search that uncovered the money orders. Instead, the court found (id. at 12a), Kopp had common authority over the premises searched and had acted out of a desire to avoid possible criminal liability. In these circumstances, the court concluded (ibid.), she was not a government agent and the district court had properly admitted the money orders into evidence. The court also rejected petitioner's argument that his Sixth Amendment right to counsel was violated when the district court admitted Kopp's testimony about his two post-arrest telephone conversations with her. The court of appeals determined that "the Government did not take any action beyond merely listening to Moore's statement during the taped telephone conversation" (Pet. App. 13a-14a). The court observed that Kopp "voluntarily reported" petitioner's first call to the police (id. at 13a), and that at the time of the second call, "nineteen (19) postal money orders had already been recovered from (petitioner's) residence and (petitioner's) incriminating statements regarding the money orders had already been reported" (id. at 14a). Relying on Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986), the court concluded in light of these facts that the admission of Kopp's testimony did not violate the Constitution. Pet. App. 14a. The court also concluded that the trial court properly denied petitioner's motions for severance or a mistrial. Pet. App. 8a-10a. The court of appeals observed (id. at 8a) that to prevail on these motions petitioner was required to make a "strong showing of factually specific and compelling prejudice resulting from a joint trial," and to "demonstrate the jury's inability to distinguish the evidence relevant to each defendant" (citing United States v. Benton, 852 F.2d 1456, 1469 (6th Cir.), cert. denied, 488 U.S. 993 (1988)). Petitioner contended that Morse's decision to call Jorgensen as a witness placed Morse's defense in antagonism to petitioner's defense. Pet. App. 7a. Finding (id. at 8a-9a) that, while Jorgensen's testimony inculpated both petitioner and Morse, it nevertheless lacked the potential to confuse the jury, the court concluded (id. at 9a) that the district court had properly proceeded with a joint trial. Finally, the court of appeals found (Pet. App. 21a) that the district court's jury instructions on Count 1, "taken as a whole, adequately set forth that the jury was required to find whether the perpetrators of the robbery of the Waddy, Kentucky, Post Office robbed, and put in jeopardy the lives of Ms. Waites and Ms. Mackey, who were in lawful custody or charge of property of the United States." /6/ ARGUMENT 1. Petitioner initially contends (Pet. 7-17) that the warrantless search of his residence violated the Fourth Amendment. He argues that his girlfriend, Beverly Kopp, was acting as a government agent when she consented to the search (id. at 8-13), and that in any event her consent did not extend to a chest-of-drawers used exclusively by him (id. at 13-17). Petitioner's arguments are without merit. As the court of appeals correctly determined, the district court properly declined to suppress the evidence seized during the search. /7/ In United States v. Matlock, 415 U.S. 164, 171 (1974), this Court held that proof of voluntary consent to a search may be established by showing that a third party with common authority over the premises sought to be searched gave permission for the search. A joint occupant, the Court explained, assumes the risk that a co-occupant may expose their common area to a search. Id. at 171 n.7. The holding in Matlock is fully applicable here. As the court of appeals observed (Pet. App. 12a), petitioner did not dispute that Kopp had common authority over the searched residence, that she shared the searched bedroom with petitioner, and that her consent was voluntary. The record also showed (see ibid.) that Kopp assisted in the investigation to avoid possible criminal liability. In these circumstances, the court of appeals correctly concluded that she was not a government agent, and that the money orders found at the residence were properly admitted into evidence. Petitioner's reliance (Pet. 10-12) on Coolidge v. New Hampshire, 403 U.S. 443, 487-490 (1971); United States v. Feffer, 831 F.2d 734, 739 (7th Cir. 1987); and United States v. Ford, 765 F.2d 1088, 1090 (11th Cir. 1985), is misplaced. In all three cases, private parties who had voluntarily cooperated with the government were found not to be government agents. That is the case here as well. /8/ Petitioner also argues (Pet. 13-17) that Kopp's consent did not include his chest-of-drawers. The record showed, however, that Detective Maxey found the money orders under the chest, on the floor of the common bedroom, not in the chest (see Gov't C.A. Br. 12). Indeed, petitioner concedes (Pet. 5) that the money orders were found under the chest. Thus, even if Kopp had lacked authority to consent to a search of the chest, the district court correctly declined to suppress the money orders found under it. /9/ 2. Petitioner next contends (Pet. 17-22) that admission of statements he made to Kopp during two post-arrest telephone conversations violated his Sixth Amendment rights under the principles of Massiah v. United States, 377 U.S. 201, 206-207 (1964), and its progeny. The court of appeals properly rejected that contention. Petitioner initiated both conversations in order to secure his release from custody; he planned to use the stolen money orders to pay his bail. Kopp voluntarily reported petitioner's first call to her after that conversation had taken place. The police clearly had no part either in eliciting petitioner's statements during that conversation or in Kopp's reporting them. It was petitioner who, in the course of the first conversation, indicated that he would call Kopp a second time. While Kopp consented to police recording of the second conversation, again it was petitioner who placed the call to her. There was no evidence that Kopp or the police did anything more than listen to the instructions petitioner gave her about the delivery of the money orders. In these circumstances, the police did not "elicit" any incriminating statements from petitioner, and no violation of the Sixth Amendment principles set forth in Massiah and subsequent cases occurred. The cases relied on (Pet. 18-21) by petitioner, e.g., Massiah itself; Beatty v. United States, 389 U.S. 45 (1967) (per curiam), rev'g 377 F.2d 181, 188-191 (5th Cir.); United States v. Henry, 447 U.S. 264, 270 (1980); and Maine v. Moulton, 474 U.S. 159, 165-166 (1985), are inapposite. In each of those cases, the circumstances supported an inference that "the informant was charged with the task of obtaining information from (the) accused." United States v. Henry, 447 U.S. at 272 n.10. To show a Sixth Amendment violation under Massiah and its progeny, "the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." Kuhlmann v. Wilson, 477 U.S. at 459. In the instant case, petitioner can make no showing that Kopp had been "charged with the task of obtaining information" from him, or that Maxey and Kopp took any "action, beyond merely listening, that was designed deliberately to elicit incriminating remarks" from him. The court of appeals correctly concluded that petitioner's Sixth Amendment rights had not been violated. 3. Petitioner contends (Pet. 22-23) that the conduct of co-defendant Morse's defense, specifically Morse's decision to call Vonda Jorgensen as a witness, compelled the court to grant his motion for a severance. The contention is meritless. To justify a severance on the basis of antagonistic defenses, a defendant must show that factually specific and compelling prejudice will result from a joint trial. United States v. Benton, 852 F.2d at 1469. Petitioner made no such showing here. Petitioner's defense and Morse's were not antagonistic. Morse, despite the advice of his counsel, called Jorgensen as a witness, but he made no effort on direct examination to elicit testimony from Jorgensen that incriminated petitioner, and she did not at that point either exculpate or substantially inculpate petitioner. /10/ While she corroborated the government's case against both defendants during her cross-examination by the government, petitioner subsequently cross-examined her at length. /11/ Morse then took the stand, and gave testimony that discredited Jorgensen and exculpated petitioner. Morse's decision to call Jorgensen as a witness may have been a tactical blunder, but "tactical blunders * * * cannot be equated with the actual prejudice necessary to require severance." United States v. McClure, 734 F.2d 484, 489 (10th Cir. 1984). /12/ 4. Finally, petitioner erroneously contends (Pet. 24-25) that the jury instructions on Count 1 constructively amended the indictment, exposing him to conviction on a crime for which he was not charged. /13/ Petitioner alleges that, although the indictment identified Waites as the person from whom money or other property of the United States was taken, and identified Waites and Mackey as the persons whose lives were simultaneously put in jeopardy, the jury was instructed that it could convict if it found that petitioner had taken money or other property of the United States from "any person" and in the process put the life of "any person" in jeopardy. While petitioner's allegations are factually correct, they do not establish a constructive amendment of the indictment. "An indictment is constructively amended if the evidence presented at trial, together with the jury instructions, raises the possibility that the defendant was convicted of an offense other than that charged in the indictment." United States v. Apodaca, 843 F.2d 421, 429 (10th Cir.), cert. denied, 488 U.S. 932 (1988). The evidence here presented no such possibility. The evidence showed that Waites was the postmaster of the Waddy post office and was on duty at the time of the robbery, that petitioner and Morse robbed her of money and other property of the United States, and that in the process they put her and Mackey's lives in jeopardy by use of a firearm. There was no evidence that petitioner and Morse had robbed, or jeopardized the life of, any person other than those named in the indictment. The cases upon which petitioner relies do not support his position. United States v. Lawrence, 699 F.2d 697, 701 (5th Cir.), cert. denied, 461 U.S. 935 (1983), concerned the sufficiency of the government's evidence, not a constructive amendment of the indictment. In United States v. Salinas, 654 F.2d 319, 323 (5th Cir. 1981), the evidence at trial showed that the principal whom the defendant was charged with aiding and abetting was not involved in the offense. /14/ No such variance in proof occurred here. Count 1 of the indictment identified Waites and Mackey as the victims of the offense it charged, and the evidence adduced at trial showed that they were the only victims of that offense. 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 THOMAS M. GANNON Attorney MARCH 1991 /1/ Petitioner's co-defendant, Charles R. Morse, was convicted of the same offenses, received an identical sentence, and is also seeking review of his conviction in this Court. Morse v. United States, petition for cert. pending, No. 90-6460. /2/ At trial, Waites and Mackey identified petitioner and Morse as the men who had robbed the post office. Gov't C.A. Br. 9. Investigators found Morse's fingerprints on the counter of the post office, on several money orders that were later returned to the Postal Service for payment, and on two money orders found at the house petitioner shared with his girlfriend. Id. at 9, 12-13. /3/ Jorgensen was available to testify pursuant to a writ of habeas corpus ad testificandum sought by the government and directed to officials of the Washington County, Indiana, jail, where she was in custody. At trial, however, the government decided not to call her as a witness during its case-in-chief, but to call her as a rebuttal witness if either defendant introduced alibi evidence. Petitioner's counsel had informed the government that he planned to call as many as four alibi witnesses. Gov't C.A. Br. 14-17 & 17 n.4. /4/ Fed. R. Crim. P. 14 authorizes a trial judge to grant a severance if it appears that a defendant is prejudiced by joinder for trial with another defendant. /5/ The applicable statute, 18 U.S.C. 2114, provides in pertinent part that whoever robs "any person having lawful charge, control, or custody of * * * any money or other property of the United States" shall be imprisoned for "not more than ten years" for the first offense, and "shall be imprisoned (for) twenty-five years" "if in effecting * * * such robbery" he puts "in jeopardy by the use of a dangerous weapon" the life of "the person having custody of such * * * money, or other property of the United States." /6/ The court of appeals rejected numerous other challenges by petitioner to his conviction. Petitioner has not pursued those issues in this Court. /7/ Petitioner argues (Pet. 8-9, 13) that the decision below is inconsistent with United States v. Lambert, 771 F.2d 83 (6th Cir.), cert. denied, 474 U.S. 1034 (1985). Lambert is distinguishable from the present case, however, because the person found to be acting as a government agent in Lambert acted out of a desire to aid police efforts. 771 F.2d at 86; see Pet. App. 12a. In any event, any conflict between Lambert and the decision below is for the Sixth Circuit to consider. This Court does not sit to resolve intra-circuit conflicts. See Wisniewski v. United States, 353 U.S. 901 (1957). /8/ Although petitioner claims that the government threatened Kopp, the alleged threats were not made until after the consensual search of petitioner's residence had uncovered the money orders. Pet. 12 n.2. /9/ The cases cited by petitioner for the contrary proposition do not support his position. United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (search of footlocker), and Reeves v. Warden, 346 F.2d 915, 925 (4th Cir. 1965) (search of bureau used exclusively by defendant), involved third-party consents to search closed containers, not the space under them. In Donovan v. A.A. Beiro Construction Co., Inc., 746 F.2d 894, 901-902 (D.C. Cir. 1984) (search of open construction site), and United States v. Buettner-Janusch, 646 F.2d 759, 766 (2d Cir.) (search of laboratory), cert. denied, 454 U.S. 830 (1981), searches were permitted where the defendants, like petitioner here, had no reasonable expectation of privacy in the areas searched. /10/ Jorgensen's appearance at trial was not a surprise to petitioner. The government had secured her attendance through a writ of habeas corpus ad testificandum, and petitioner would have had no basis for complaint if she had testified during the government's case-in-chief. That she did not was the result of a tactical decision by the government to reserve her testimony for rebuttal if either defendant presented alibi evidence. See Gov't C.A. Br. 14-17, 19. /11/ Although Jorgensen's testimony during the government's cross-examination was not helpful to petitioner, it was to some extent cumulative of the testimony of Waites and Mackey, who identified him as one of the armed robbers, and of Kopp, who connected him with 19 of the stolen money orders. /12/ The cases upon which petitioner relies do not counsel a different result. In United States v. Goudy, 792 F.2d 664, 672-673 (7th Cir. 1986), one defendant sought to develop evidence showing that her co-defendant had coerced her into participating in a conspiracy. In United States v. Veteto, 701 F.2d 136, 139 (11th Cir.), cert. denied, 464 U.S. 839 (1983), the court noted that a trial involving a pro se defendant and other defendants represented by counsel is not inherently prejudicial, and found that no prejudice had occurred. In United States v. Banks, 687 F.2d 967, 973 (7th Cir. 1982), cert. denied, 459 U.S. 1212 (1983), counsel for one defendant elicited testimony from a witness that incriminated another defendant. In United States v. Crawford, 581 F.2d 489, 492 (5th Cir. 1978), the two defenses at issue were clearly irreconcilable, because each was based solely on the guilt of the other defendant. /13/ Although in the court of appeals petitioner challenged the adequacy of the trial court's jury instructions in certain respects, it does not appear that he raised the specific issue of constructive amendment presented here. See Pet. C.A. Br. 31-34; Pet. C.A. Reply Br. 8-10. As a result, he is precluded from raising it in this Court for the first time. United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977); Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970). /14/ Salinas has subsequently been overruled on other grounds. United States v. Adamson, 700 F.2d 953, 965 n.18 (5th Cir.), cert. denied, 464 U.S. 833 (1983).