JOHNNY LARRY HORTON, PETITIONER V. UNITED STATES OF AMERICA No. 90-6324 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-2) is not reported, but is noted at 914 F.2d 269 (Table). JURISDICTION The judgment of the court of appeals was entered on August 21, 1990. The petition for a writ of certiorari was not filed until November 21, 1990, and is therefore out of time under Rule 13.1 of the Rules of this Court. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erred in permitting petitioner's former parole officer to state his occupation and the frequency of his contacts with petitioner before identifying petitioner from a bank surveillance photograph. STATEMENT Following a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted of bank robbery, in violation of 18 U.S.C. 2113(a). The district court sentenced him to a term of 210 months' imprisonment, to be followed by a three-year term of supervised release, ordered him to pay $989 in restitution, and imposed a $50 special assessment. The court of appeals affirmed. Pet. App. 1-2. 1. On September 19, 1988, a man approximately 5'10" tall, with brown hair and eyes and a heavy mustache, entered the First Atlanta Bank in Mabelton, Georgia. The man's hair was styled in tight ringlets, and he wore a baseball cap with the letter "T" on top. He approached a woman teller and asked her to give him approximately 50 coin wrappers. When the teller turned to obtain the wrappers, the man slid a plastic bag across the counter and demanded that the teller put all of the money from her cash drawer in the bag. He also directed her not to press the alarm button. The teller emptied her cash drawer, which included bait money and a dye pack, into the bag. Bank surveillance cameras photographed the transfer of the money. After the surveillance photographs were developed, a special agent of the Federal Bureau of Investigation showed them to David Tibbets, a Georgia state parole officer. Tibbets identified petitioner as the man in the photographs. Gov't C.A. Br. 2-3. 2. Prior to trial, the government informed petitioner that it would call Tibbets to identify him as the bank robber in a bank surveillance photograph. Petitioner moved in limine to suppress the testimony, alleging, among other things, that he would be unfairly prejudiced if the jury learned that the witness was his parole officer. At a pretrial conference, the prosecutor said that in order to inform the jury how the witness knew the defendant, she would elicit testimony about their relationship, but would not touch on the specific charges for which petitioner was on parole. The district court deferred its ruling on the motion in limine. Gov't C.A. Br. 9-10. At trial, the teller identified petitioner as the man who had robbed her, and the government introduced into evidence surveillance photographs taken while the robbery was in progress. The government then called Tibbets to the stand. With the jury out of the courtroom, the prosecutor and defense counsel conducted a voir dire of the witness. Tibbets testified that he was currently employed as a liaison officer by the Georgia State Board of Pardons and Parole, that he had previously been employed as a parole officer in the field, supervising parolees, that he had supervised petitioner for a period of approximately one year, which included the date of the bank robbery, and that during that year he had seen petitioner two or three times a month for from five to 15 minutes. Gov't C.A. Br. 3, 10-11. Tibbets also testified that when he knew petitioner, at the approximate time of the robbery, petitioner frequently bought baseball hats and painted logos on them. He identified petitioner as the man in the bank surveillance photograph, and stated his belief that the bank robber was wearing a wig because petitioner's hair was shorter and closer to his head. Petitioner's counsel then cross-examined Tibbets about his contacts with petitioner. At the close of this cross-examination, petitioner's counsel did not renew the motion in limine, did not object to Tibbets's anticipated testimony, and did not ask the district court to bar the prosecutor from asking Tibbets about his occupation. Gov't C.A. Br. 11. When the jury returned to the courtroom, the government called Tibbets to the stand without objection from petitioner. Tibbets testified about his previous position as a field parole officer. Asked when he first met petitioner, he said: "When he was released and that would have been * * *" (2 R. 39). Petitioner's counsel objected. The district court sustained the objection and instructed the jury to disregard the statement. Petitioner's counsel requested a bench conference where he stated his concern that the jury would infer that petitioner had been incarcerated and that no limiting instruction could cure the harm. He did not, however, move for a mistrial. The prosecutor said she had anticipated that Tibbets would identify his relationship with petitioner in order to explain how he knew him. The court directed her to proceed. Gov't C.A. Br. 11-12. Most of the rest of Tibbets's testimony on direct examination was concerned with the frequency of his contacts with petitioner. In the course of that testimony, he identified petitioner as the bank robber in the surveillance photograph, said that petitioner had a hobby of buying baseball caps and painting logos on them, and stated that he had seen petitioner wearing a baseball cap before. Gov't C.A. Br. 12. 3. The court of appeals affirmed in a brief per curiam opinion. Pet. App. 1-2. Noting petitioner's argument that the district court had erred by allowing his parole officer to testify and identify petitioner as the bank robber who appeared in a surveillance photograph, and assuming, without deciding, that the issues on appeal had been preserved by appropriate objections, it found that no error had been committed. Id. at 2. ARGUMENT Petitioner contends (Pet. 10-14) that the district court erred when it permitted his state parole officer to testify about his occupation and relationship with petitioner, and that the decision of the court of appeals, which implicitly approved this procedure by affirming petitioner's conviction, is in conflict with decisions of other courts of appeals. Those contentions are without merit. Rule 403 of the Federal Rules of Evidence provides that otherwise relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." But the standard required to exclude relevant evidence under Rule 403 is high. United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988), cert. denied, 109 S.Ct. 1639 (1989). "(T)he possible prejudicial effect of evidence can require exclusion only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence." Ibid.; internal quotation marks and citations omitted. Furthermore, a district court has wide discretion in determining whether Rule 403 forbids the introduction of evidence. United States v. Williams, 816 F.2d 1527, 1532 (11th Cir. 1987). In the present case, although Tibbets identified himself as a parole officer, he did not identify himself as petitioner's parole officer. When he testified that he had met petitioner "(w)hen (petitioner) was released," defense counsel objected. The district court struck the remark and instructed the jury to disregard it. Tibbets said nothing else in the course of his testimony to suggest that petitioner had a criminal record. In these circumstances, the court of appeals correctly concluded (Pet. App. 2) that the district court had not erred in its handling of this evidentiary issue. Rule 403 plainly did not bar Tibbets's identification of himself as a parole officer. "(G)enerally there is a right to inquire into a witness's background and environment in order to place the witness in his proper setting." United States v. Rice, 550 F.2d 1364, 1371 (5th Cir.) (citing Alford v. United States, 282 U.S. 687, 692 (1931)), cert. denied, 434 U.S. 954 (1977). Tibbets's self-identification as a parole officer served to place him "in his setting," yet it is inconceivable that the mere statement that he was a parole officer could have created a "genuine risk" of "irrational behavior" on the part of the jury (Dornhofer, 859 F.2d at 1199). The district court therefore did not abuse its discretion when it declined to invoke the "extraordinary remedy" of excluding Tibbets's self-identification under Rule 403. See United States v. Patterson, 819 F.2d 1495, 1505 (9th Cir. 1987). Although Tibbets's subsequent statement that he first met petitioner "(w)hen (petitioner) was released" may have suggested that petitioner had been incarcerated, and thus arguably created a danger of unfair prejudice to petitioner, this harm was promptly and effectively averted when the district court sustained defense counsel's objection and directed the jury to disregard the remark. See Richardson v. Marsh, 481 U.S. 200, 211 (1987) ("juries are presumed to follow their instructions"). Moreover, the existence of petitioner's criminal record was never confirmed, and Tibbets never testified that he was petitioner's parole officer. The danger of unfair prejudice to petitioner from this single, subsequently stricken remark was therefore speculative at best, and the court of appeals correctly found no error in the district court's handling of the matter. Petitioner is mistaken when he claims that the decision below is in conflict with the decisions of other courts of appeals. In United States v. Allen, 787 F.2d 933, 937-938 (4th Cir. 1986), vacated on other grounds, 479 U.S. 1077 (1987); United States v. Farnsworth, 729 F.2d 1158, 1161 (8th Cir. 1984); and United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977), the courts found that the respective district courts had not abused their discretion in admitting identification testimony by law enforcement officials, and while all three decisions recommended procedures to be followed by district courts before such testimony is admitted, none held that any deviation from those procedures requires automatic reversal. /1/ In United States v. Wright, 904 F.2d 403, 405 (8th Cir. 1990), after observing that Farnsworth controlled the result, the court likewise found that the district court had not abused its discretion in admitting identification testimony by law enforcement officers. The other cases upon which petitioner relies are distinguishable. In United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976), the admission of the identification testimony of the defendant's parole officer was principally defective because defense counsel was effectively precluded from exploring the motives of the parole officer in identifying the defendant as the bank robber. Id. at 294-296. In the present case, however, defense counsel had ample opportunity to explore Tibbets's motives during the voir dire prior to Tibbets's testimony before the jury. See United States v. Butcher, 557 F.2d at 670 (distinguishing Calhoun on this ground). In United States v. Sostarich, 684 F.2d 606, 608 (8th Cir. 1982), the government elicited highly prejudicial testimony from the witness about his incarceration with the defendant, including the minimum length of the defendant's sentence ("a year or two, two years"), the length of the witness's sentence ("(f)ive years"), and his offense of conviction ("(s)awed-off shotgun"). In the present case, however, no such prejudicial testimony was elicited, and the district court promptly struck, and directed the jury to disregard, the only testimony even suggesting that petitioner had been incarcerated. Finally, even if the district court had erred in its admission of any of Tibbets's testimony, that error was harmless in the totality of the circumstances of petitioner's trial. The bank teller had identified petitioner as the man who had robbed her. In addition, the surveillance photograph introduced by the government was conceded by petitioner to be "crystal clear" and "a direct shot of the bank robber" (Pet. C.A. Br. 25). The teller's identification and the jury's ability to compare a photograph of great clarity with petitioner's appearance at trial ensured that admission of Tibbets's testimony did not affect petitioner's substantial rights. See United States v. Farnsworth, 729 F.2d at 1162 (admission of identification testimony by law enforcement officers held harmless); United States v. Butcher, 557 F.2d at 670 (same). 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 JANUARY 1991 /1/ While in both Farnsworth, 729 F.2d at 1161, and Butcher, 557 F.2d at 670, the courts discouraged the use of identification testimony by parole officers and recommended its use only if no other adequate identification testimony is available to the government, those counsels of prudence were not essential to the holding in either case.