DONALD EUGENE JOHNSON AND ROBERT WILLIAM JONES, PETITIONERS V. UNITED STATES OF AMERICA No. 90-5627 In The Supreme Court Of The United States October Term, 19900 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-34) is reported at 907 F.2d 456. JURISDICTION The judgment of the court of appeals was entered on July 3, 1990. The petition for a writ of certiorari was filed on September 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the government violated petitioners' rights under the Sixth Amendment when petitioners' attorneys were required to stand outside the witness viewing room while observing a lineup. 2. Whether the evidence was sufficient to support petitioners' convictions for using a firearm during the commission of a crime of violence, in violation of 18 U.S.C. 924(c). STATEMENT After a jury trial in the United States District Court for the District of South Carolina, petitioners were convicted of armed robbery, in violation of 18 U.S.C. 2113, and using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c). Petitioner Johnson was sentenced to a total of 330 months' imprisonment, and petitioner Jones was sentenced to a total of 324 months' imprisonment. The court of appeals affirmed the convictions but remanded for further proceedings in connection with petitioners' sentences. Pet. App. 1-34. 1. The evidence at trial showed that on June 6, 1988, two men robbed the Anchor Bank in Myrtle Beach, South Carolina. The government presented the testimony of an FBI expert who analyzed bank surveillance photographs of the two robbers, both of whom had worn sunglasses and baseball caps during the robbery. After comparing the bank photographs with other photographs of petitioners, the expert identified petitioners as the men in the photographs. He also identified the sunglasses and baseball caps seized from a residence leased by Johnson and his cousin as those worn by the robbers in the photographs. In addition, the government presented the testimony of five eyewitnesses -- four bank tellers and a bank customer -- who made in-court identifications of Johnson as one of the robbers. Two bank tellers made in-court identifications of Jones as the other robber. The witnesses testified that they had previously identified petitioners at a lineup held shortly after the robbery. Pet. App. 3-4. Petitioners were together when they were arrested, and both had in their possession at that time a large number of five-dollar bills with sequential serial numbers. The government presented other evidence against petitioners, including testimony that they were in the area of the bank at the time of the robbery, that they had had no cash immediately before the robbery, and that at the time of his arrest, petitioner Johnson denied that his name was Donald Johnson. Pet. App. 4. Prior to trial, petitioners moved to suppress the witnesses' identifications. They argued, inter alia, that they had been denied their Sixth Amendment right to counsel because, although their lawyers were present at the lineup and were able to observe the proceedings, they were not allowed in the witness viewing room during the lineup. Pet. App. 7-8; C.A. App. 2-3, 25-32. After hearing testimony from an FBI agent who helped conduct the lineup, C.A. App. 62-79, the district court denied the motion. Id. at 79. 2. On appeal, petitioners asserted in passing (Pet. C.A. Br. 20, 23) that it was improper to bar their counsel from the witness viewing room during the lineup. The court of appeals, however, found no merit to that argument. The court noted that "(c)ounsel was present in the line-up room with (petitioners) and had the opportunity to confer with them after the line-up." Pet. App. 8. In addition, "counsel had opportunities to cross-examine the witnesses who made the identifications and the FBI agents who conducted the line-up, and a picture of the line-up was presented to the court when it ruled on the suppression motion." Ibid. The court of appeals observed that petitioners had "cited no authority to the effect that counsel needs to be present in the witness room itself," ibid., and that the government had presented "ample evidence of the reliability of the identifications under the relevant factors set out in Neil v. Biggers, 409 U.S. 188 (1972)." Pet. App. 8-9. The court of appeals also rejected petitioners' challenge to the sufficiency of the evidence on the count charging them with using and carrying a firearm during the bank robbery, in violation of 18 U.S.C. 924(c). Because "five eyewitnesses testified that a gun was used in the robbery," the court of appeals concluded that the evidence was sufficient to satisfy a reasonable jury that petitioners used a firearm to commit the robbery. Pet. App. 10. ARGUMENT 1. Petitioners contend (Pet. 4-5) that their Sixth Amendment right to counsel was violated when defense counsel was not allowed into the witness viewing room during the lineup, even though counsel was permitted to be present at the lineup and to view it from outside the witness room. The Sixth Amendment requires that a defendant be permitted to have counsel present during a lineup. United States v. Wade, 388 U.S. 218 (1967). That right attaches at the time of indictment or other steps, such as a preliminary hearing, that indicate adversary proceedings have commenced. Moore v. Illinois, 434 U.S. 220 (1977). Because a preliminary hearing had been held in this case prior to the lineup, petitioners were entitled to have counsel present during the lineup, and they exercised that right. To be sure, petitioners' attorneys were not allowed in the separate room from which the witnesses viewed the lineup. The attorneys, however, were present during the lineup, and they were in a position to monitor the lineup throughout the proceedings. Pet. App. 8; C.A. App. 50. Counsel had the opportunity to consult with their clients before and after the lineup and to view the witness room before that lineup. C.A. App. 40, 48, 52. Counsel also had the opportunity to interview all the witnesses who viewed the lineup prior to trial and to cross-examine those witnesses when they testified at trial. Pet. App. 8. Under these circumstances, counsel's exclusion from the witness viewing room during the lineup did not result in a Sixth Amendment violation. This Court has explained that the assistance of counsel at a lineup is necessary to eliminate "opportunities for prosecuting authorities to take advantage of the accused." United States v. Ash, 413 U.S. 300, 312 (1973). Counsel who are present at a lineup may "be able to remove disabilities of the accused," such as deficiencies in the accused's memory "dimmed by 'emotional tension,'" problems in his credibility at trial "diminished by his status as defendant," and defects in his ability "to present his version effectively without giving up his privilege against compulsory self-incrimination." Id. at 312-313. Put another way, the purpose of having counsel present at the lineup is to allow the defendant's attorney to stand in the shoes of the defendant in reconstructing the lineup; the purpose is not to monitor the witnesses' identification of the defendant. For that reason, federal courts have repeatedly held that a defendant's Sixth Amendment right is not violated when defense counsel is denied the opportunity to be present at a post-lineup interview of the witnesses. See, e.g., Hallmark v. Cartwright, 742 F.2d 584, 585 (10th Cir. 1984); United States v. White, 617 F.2d 1131, 1135 (5th CIr. 1980); United States v. Bierey, 588 F.2d 620, 624-625 (8th Cir. 1978), cert. denied, 440 U.S. 927 (1979); United States v. Parker, 549 F.2d 1217, 1223 (9th Cir.), cert. denied, 430 U.S. 971 (1977); United States v. Wilcox, 507 F.2d 364, 370 (4th Cir. 1974), cert. denied, 420 U.S. 979 (1975). Barring defense counsel from a post-lineup interview with the witnesses is functionally equivalent to barring counsel from the witness room during the lineup; in each case, defense counsel is permitted to observe the lineup from the perspective of the accused, but not to participate in the process by which the witnesses convey their identifications to the agents of the prosecution. The result in this case and in the other federal cases reaching similar results accords with this Court's analysis in United States v. Ash, supra, where the Court held that the Sixth Amendment does not grant an accused the right to have counsel present at a photographic "lineup." The Court in Ash rejected the argument that because the risks of suggestive influence or mistake are as great at a photographic display as at a live lineup, the Sixth Amendment should apply with equal force in either setting. The Court held that while the Sixth Amendment guarantees the defendant the right to have his counsel present during a lineup, it does not "extend the right to a portion of the prosecutor's trial preparation with witnesses." 413 U.S. at 317. The Court noted that although interviews with witnesses always have the potential to be suggestive, the antidote for that risk "arises from the equal ability of defense counsel to seek and interview witnesses himself." 413 U.S. at 318. The identification of the accused in an interview during or following a photographic display is indistinguishable from the identification that takes place in the witness room during or following a lineup, as long as defense counsel has been offered the opportunity to view and later reconstruct the lineup. Whether the identification was made during a physical viewing of the lineup or after a photographic display, "the possibility of irretrievable prejudice is remote, since any unfairness that does occur can usually be flushed out at trial through cross-examination of the prosecution witnesses." Ash, 413 U.S. at 325 (Stewart, J., concurring in the judgment). That is particularly true when, as here, the accused is given pretrial access to the identification witnesses. /1/ Accordingly, petitioners have failed to establish that the lineup procedure employed in this case violated their rights under the Sixth Amendment. 2. There is no merit whatever to petitioners' claim (Pet. 5-7) that the evidence was insufficient to support their convictions under 18 U.S.C. 924(c) for using a firearm to commit a violent crime. As the court of appeals explained (Pet. App. 10), five eyewitnesses testified that a gun was used in the robbery. That testimony, corroborated by the bank surveillance photographs, was amply sufficient to permit the jury to infer that the object petitioners used to effect the robbery was a "firearm." Parker v. United States, 801 F.2d 1382, 1383-1385 (D.C. Cir. 1986), cert. denied, 479 U.S. 1070 (1987). 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 GEOFFREY R. BRIGHAM Attorney DECEMBER 1990 /1/ Petitioners' reliance (Pet. 5) on People v. Williams, 3 Cal. 3d 853, 478 P.2d 942, 92 Cal. Rptr. 6 (1971), and People v. Johnson, 99 Misc. 2d 450, 416 N.Y.S. 2d 495 (1979), is misplaced. The California Supreme Court decided Williams before this Court's decision in Ash. Accordingly, the California court failed to take account of the distinction between counsel's role in acting "as the spokesman for, or advisor to, the accused" (Ash, 413 U.S. at 312), which is constitutionally protected, and counsel's role as a monitor of the government's dealings with the identification witnesses, which is not. See also Richardson v. State, 600 P.2d 361, 365 & n.1 (Okla. Crim. App. 1979) (adopting the Williams rule post-Ash, but failing to cite or discuss this Court's decision in that case). Johnson is a decision by a state trial court, not the highest court of the State, and any conflict between that decision and the decision of the Fourth Circuit in this case therefore does not warrant this Court's review.