CHARLES R. MORSE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6460 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 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court correctly denied a request for the issuance of a subpoena. 2. Whether the district court abused its discretion in denying a request for a mid-trial continuance. 3. Whether the district court correctly excluded evidence. 4. Whether petitioner was properly impeached with evidence of a prior conviction. 5. Whether consecutive sentences for armed postal robbery under 18 U.S.C. 2114 and for carrying a firearm during a crime of violence under 18 U.S.C. 924(c) violated the Double Jeopardy Clause of the Fifth Amendment. 6. Whether petitioner was entitled to a lesser-included offense instruction. 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, petitioner entered the United States Post Office at Waddy in Shelby County, Kentucky. Petitioner approached the counter and told Linda Waites, postmaster of the office, 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, petitioner looked toward a corner of the lobby, where co-defendant George Moore was standing. When petitioner repeated his remark about returning to the car, Moore 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. /2/ Petitioner 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. Petitioner called Mackey over to the counter. Moore, gun in hand, came into the work room from the lobby. Moore 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 Moore almost 100 money orders, a quantity of cash, a money order imprinting machine, and a mail bag. Gov't C.A. Br. 8. 2.a. In February 1988, petitioner filed a motion requesting authorization for an orthopedic examination. The request was granted, and petitioner was transferred to the United States Medical Center for Federal Prisoners at Springfield, Missouri. He remained there until shortly before the trial of the present case in mid-July 1988. Over this period, the trial was continued at least twice. Pet. 3; Gov't C.A. Br. 4. On the second day of trial, petitioner moved for another continuance on the ground that he was experiencing back pain. Petitioner also moved that he be examined by a physician. The district court denied the motions, but advised petitioner to inform the court if his pain became too severe for him to continue. In that event, the court said, it would halt the trial and take a recess. Pet. 4; Pet. App. 3a. b. On the first day of the trial, petitioner requested that a subpoena issue for the appearance of John Akin, sheriff of Washington County, Indiana. /3/ Although the district court indicated a subpoena could issue, none did. On the third day of trial, petitioner renewed his request, providing the court with a statement regarding Akin's anticipated testimony. The court denied the request because the petitioner's assertions regarding the anticipated testimony "d(id) not have anything to do with this case." According to the court, the anticipated testimony related to a jail escape and apparently unrelated statements made by Vonda Jorgensen, an unindicted co-conspirator. Gov't C.A. Br. 38-39. c. At trial, the district court excluded as irrelevant certain testimony petitioner sought to elicit from Jorgensen concerning alleged official corruption. C.A. App. 347. The district court also prohibited petitioner from testifying about his claim that it was relevant that federal, rather than state, authorities had taken him into custody. Id. at 314-315, 332-333, 347; see also Pet. 5. d. Before petitioner took the stand and again before he was cross-examined, petitioner moved in limine to bar the government from impeaching his credibility with a prior conviction for armed robbery. The district court denied the motion. Pet. 5. e. Petitioner and co-defendant Moore requested that the district court's instruction on armed robbery include a lesser-included offense instruction on unarmed robbery. They argued that a lesser-included offense instruction was required because the government had not produced the weapon used in the offense. The district court declined to give the instruction. Pet. 5-6; Gov't C.A. Br. 33. f. Before sentencing, petitioner moved to require the government to elect one count on which sentence would be imposed. The district court denied the motion and sentenced petitioner to consecutive sentences on both counts. Pet. 6. 3. The court of appeals affirmed. Pet. App. 1a-38a. The court rejected petitioner's contention -- based on Simpson v. United States, 435 U.S. 6 (1978), and Busic v. United States, 446 U.S. 398 (1980) -- that imposition of consecutive sentences under 18 U.S.C. 2114 and 924(c) violated the Double Jeopardy Clause. The court held (Pet. App. 25a-26a) that Simpson and Busic had been legislatively superseded by the amendment of Section 924(c) in the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Section 1005, 98 Stat. 1837, 2138. The court determined from the legislative history of the Act that all persons who commit federal crimes of violence -- including crimes set forth in statutes that, like 18 U.S.C. 2114, already provide for enhanced sentences for their commission with a dangerous weapon -- should receive a mandatory sentence that would not run concurrently with the sentence for the underlying offense. See S. Rep. No. 225, 98th Cong., 1st Sess., 313 n.8 (1983). Accordingly, the court concluded (Pet. App. 26a) that the consecutive sentences imposed on petitioner and Moore did not constitute double jeopardy. /4/ The court also rejected petitioner's lesser-included offense argument. The court observed that neither petitioner nor Moore produced any evidence to rebut the government's proof that they had used a gun during the robbery. Pet. App. 22a-23a. Because "the evidence of the use of a dangerous weapon (was) uncontradicted" (id. at 23a), the court concluded there was "no need to instruct on the lesser included offense" (ibid.). The court of appeals likewise rejected (Pet. App. 27a-29a) petitioner's claim that the district court violated his Fifth and Sixth Amendment rights by denying his application to subpoena Sheriff Akin. The court noted (id. at 29a) that the sole stated purpose of Akin's testimony was to show that Vonda Jorgensen had a motive for implicating petitioner in the robbery; Akin's other proposed testimony had only marginal relevance to the issues in the case. The putative testimony on bias was not "necessary" within the meaning of Fed. R. Crim. P. 17(b), the court reasoned, because petitioner had a "full opportunity" to examine Jorgensen about the robbery and his defense. The court accordingly concluded that the district court acted within its discretion in denying the subpoena request. The court of appeals similarly held that the trial court acted within its discretion when it denied petitioner's request for a continuance. Pet. App. 30-32a. The court of appeals observed that, when denying the request, the district court instructed petitioner's counsel to "signal the court (in) some way" if petitioner "gets to the point where he cannot go on." Id. at 32a. The trial court also made clear that if counsel so signaled, the court would recess if necessary. Ibid. Because petitioner "never again brought the matter to the attention of the court" (ibid.), the court of appeals concluded that petitioner had not established a violation of due process. The court of appeals rejected petitioner's claim that the district court improperly restricted his efforts to show that Jorgensen had an improper motive for implicating him in the robbery. Pet. App. 32a-34a. Petitioner claimed that Jorgensen wanted him taken into custody by federal authorities so he would be available to testify at her Indiana murder trial. Id. at 32a. To support this claim, petitioner sought to introduce evidence about alleged unlawful activities by the Sheriff of Washington County, Indiana. Id. at 34a. Finding that evidence to be "of virtually no consequence to the determination of the cause of action," the court of appeals concluded that the district court had not erred in excluding it. Ibid. Finally, the court upheld the admission of a 1979 armed robbery conviction to impeach petitioner. Pet. App. 35a-38a. The court determined that, because petitioner's credibility was at issue, the lower court properly weighed the probative value of the conviction against its possible prejudicial effect. Id. at 37a; see Fed. R. Evid. 609. /5/ The district court did not abuse its discretion, the court of appeals concluded, in ruling that the probative value outweighed the possible prejudice. Pet. App. 38a. /6/ ARGUMENT 1. Petitioner first contends (Pet. 7-9) that the district court erred when it denied his ex parte application for a subpoena to Sheriff Akin. The court of appeals properly rejected that contention. A district court has broad discretion to determine whether, under Fed. R. Crim. P. 17(b), "a subpoena (should) be issued for a named witness" because "the presence of the witness is necessary for an adequate defense." See United States v. Rigdon, 459 F.2d 379, 380 (6th Cir. 1972), cert. denied, 409 U.S. 1116 (1973). The district court's determination should not be disturbed on appeal unless "the exceptional circumstances of the case indicate that defendant's right to a complete, fair and adequate trial (was) jeopardized." Terlikowski v. United States, 379 F.2d 501, 508 (8th Cir.), cert. denied, 389 U.S. 1008 (1967). The district court here acted within its discretion. The district court reviewed petitioner's proffer of Akin's anticipated testimony and determined that it had nothing to do with this case. C.A. App. 552-553. Petitioner here renews (Pet. 9) his assertion, also advanced in the court of appeals, that some of Akin's anticipated testimony related to prior statements by Vonda Jorgensen. But as the court of appeals observed, petitioner had a "full opportunity" (Pet. App. 29a) to examine Jorgensen and, in doing so, to adduce support for his claim of bias. Thus, at most Akin would have presented evidence that was cumulative and that petitioner could have developed more directly. Under these circumstances, the court of appeals correctly upheld the district court's refusal to grant petitioner's subpoena. See United States v. Barker, 553 F.2d 1013, 1020 (6th Cir. 1977). 2. Petitioner next contends (Pet. 9-10) that the district court erred by denying his request for a continuance on the eve of trial. That contention is meritless. "The matter of a continuance is traditionally within the discretion of the trial judge," and "not every denial of a request for more time * * * violates due process." Ungar v. Sarafite, 376 U.S. 575, 589 (1964). While a "myopic insistence upon expeditiousness in the face of a justifiable request for delay" may implicate due process concerns, "(t)here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case * * *." Ibid. "The party seeking a continuance generally must show that a delay is necessary for a just determination of the case." United States v. Clinger, 681 F.2d 221, 223 (4th Cir.), cert. denied, 459 U.S. 912 (1982). Far from betraying "myopic insistence on expeditiousness," Ungar v. Sarafite, 376 U.S. at 589, the district court showed sensitivity to the basis for petitioner's continuance request. Petitioner's trial was continued at least twice to permit him to receive treatment for his back ailment. See Pet. 3. When petitioner asked for another continuance, the court said (C.A. App. 534): What we'll do is not go for long periods of time, and we'll have enough recesses where he can rest, but the Court feels he should go ahead. We have sent him away earlier, and otherwise it would be disruptive to stop and see a physician right now. But if he gets in further pain he may stand up. Or if he gets to the point where he cannot go on, you signal the Court some way and we'll stop and take a recess if we need to. The district court's approach clearly was not "so arbitrary as to violate due process," Ungar v. Sarafite, 376 U.S. at 589. And since neither petitioner nor his counsel ever indicated a need for a recess during the trial (see Pet. App. 32a), it cannot be said that another continuance was "necessary for a just determination of the case." United States v. Clinger, 681 F.2d at 223. /7/ The district court plainly did not abuse its discretion in denying petitioner's motion for a continuance. 3. Petitioner contends (Pet. 11-12) that the district court erred by limiting his presentation of evidence. He asserts (id. at 11) that the evidence would have shown that "Vonda Jorgensen implicated (him) in the Waddy Post Office robbery in order to ensure he would be available to present exculpatory testimony at her Indiana murder trial." The court of appeals correctly rejected this challenge to the trial court's evidentiary ruling. Relevant evidence is generally admissible at trial, see Fed. R. Evid. 402, but it may "be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence" (Fed. R. Evid. 403). Decisions on the exclusion of such evidence are committed to the sound discretion of the trial court. E.g., United States v. Zipkin, 729 F.2d 384, 389 (6th Cir. 1984). Although a reviewing court is to regard excluded evidence in the light most favorable to its proponent, it should not disturb a district court's decision to exclude evidence "simply because (it) believes it would have decided the matter otherwise." Id. at 390 (citations and internal quotation marks omitted). The district court acted within its discretion in limiting petitioner's presentation of evidence. After Jorgensen had corroborated the details of the robbery related by the witnesses who testified during the government's case-in-chief, and had clearly inculpated petitioner and Moore, petitioner offered an attenuated theory for admission of the excluded evidence. See C.A. App. 314-315. The theory ran as follows: (1) Jorgensen had been framed for the murder of her husband; (2) petitioner, who had met Jorgensen at the Washington County, Indiana, jail after her arrest on murder charges and had escaped with her from the jail, could exculpate her of the murder charges; (3) petitioner knew of illegal activities by officials at the Washington County jail; (4) because those officials knew that petitioner knew about their illegal activities, they intended to kill him if they recaptured him; (5) Jorgensen thought that petitioner would be safer in federal custody than in state custody; and (6) to save petitioner's life and preserve his exculpatory testimony, she falsely implicated petitioner in a federal crime, the Waddy robbery. See ibid.; see also Pet. 11. The district court did not summarily dismiss this theory. Instead, it permitted petitioner to conduct an extended voir dire of Jorgensen on the elements of the theory. C.A. App. 325-344. It then ruled that petitioner's counsel could question her about her statements to the government, her agreements with the government and her reasons for entering into them, her understanding as to whether the government would prosecute her, and her travels both with petitioner and his co-defendant and without them in the months immediately before and after the Waddy robbery. Id. at 346-347. The court said, however, that "(a)nything about surrendering to the officials and about to get shot or anything about corruption in the sheriff's department I think is not relevant in this case and so it should not come in" (id. at 347). The record thus shows that the district court gave petitioner ample latitude to probe Jorgensen's motives for implicating him and excluded only evidence that was, as the court of appeals accurately observed (Pet. App. 34a), "of virtually no consequence to the determination of the cause of action." In these circumstances, the court of appeals correctly ruled that the district court had not violated petitioner's rights under the Fifth and Sixth Amendments. See, e.g., United States v. Kasto, 584 F.2d 268, 272 (8th Cir. 1978), cert. denied, 440 U.S. 930 (1979). 4. Petitioner further contends (Pet. 12-13) that the district court erroneously allowed the government to impeach him with a prior conviction for armed robbery. He argues that admission of the conviction violated Fed. R. Evid. 609(a) because its prejudicial effect outweighed its probative value. The court of appeals correctly rejected this argument. Because prejudice may arise when prior similar convictions are admitted for impeachment purposes, such convictions "should be admitted sparingly," and "impeachment by way of a similar crime" should be limited to a single conviction. Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968). In determining whether to permit admission, the trial court should consider the impeachment value of the prior crime, its similarity to the charged offense, and the centrality of the defendant's credibility. Ibid. The court should make that determination on the record and specifically find that the conviction's probative value outweighs its prejudicial effect. See United States v. Sims, 588 F.2d 1145, 1149 (6th Cir. 1978). In the present case, the district court acted in accordance with these principles. Because petitioner's credibility was "very much in contention" (C.A. App. 473), the court specifically found (ibid.) that the probative value of his prior conviction for armed robbery outweighed its prejudicial effect. The court excluded other convictions that the government had sought to introduce for impeachment purposes (C.A. App. 473), and instructed the jury, after the government had finished questioning petitioner about the admissible conviction, to consider that conviction only for its impeachment value (id. at 474). Under these circumstances, the court of appeals correctly concluded (Pet. App. 38a) that the district court had properly exercised its discretion under Fed. R. Evid. 609. See United States v. Givens, 767 F.2d 574, 579-580 (9th Cir.) (defendant in armed postal robbery case properly impeached with evidence of prior convictions for robbery, armed robbery, and assault with deadly weapon), cert. denied, 474 U.S. 953 (1985). 5. Petitioner contends (Pet. 13-15) that the district court violated the Double Jeopardy Clause when it imposed consecutive sentences under 18 U.S.C. 2114 and 18 U.S.C. 924(c). That contention is incorrect. Petitioner relies chiefly on Simpson v. United States, 435 U.S. 6 (1978). In Simpson, this Court held that Congress did not intend courts to enhance a sentence under Section 924(c) when the statute that prescribed the predicate offense had an enhancement provision of its own. 435 U.S. at 10-16. /8/ The statute prescribing the underlying felony in Simpson was an armed robbery statute, 18 U.S.C. 2113(d). Petitioner's reliance on Simpson is misplaced. Congress subsequently amended Section 924(c) to supersede the holding in Simpson. As amended in the Comprehensive Crime Control Act of 1984, Section 924(c) expressly requires enhancement of a sentence imposed for a crime of violence -- including a crime punished in a statute that contains its own enhancement provision -- if the enhancement provision for the underlying crime is triggered by use of a deadly weapon during the offense. /9/ Moreover, the legislative history of the 1984 amendment shows that Congress specifically intended to authorize cumulative punishment for armed postal robbery, Section 2114, and use of a dangerous weapon during that robbery, Section 924(c). See S. Rep. No. 225, 98th Cong., 1st Sess. 313 & n.8 (1983). Congress's specific intent to cumulate punishments under the two statutes at issue here defeats petitioner's double jeopardy claim. When Congress has specifically authorized cumulative punishments, even for the same offense, the Double Jeopardy Clause is not offended. Missouri v. Hunter, 459 U.S. 359, 367 (1983). With respect to cumulative sentences imposed in a single trial, the clause "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Id. at 366. See also United States v. Harris, 832 F.2d 88, 91 (7th Cir. 1987); United States v. York, 830 F.2d 885, 891 (8th Cir. 1987), cert. denied, 488 U.S. 1074 (1988); United States v. Springfield, 829 F.2d 860, 865 (9th Cir. 1987); United States v. Shavers, 820 F.2d 1375, 1378 (4th Cir. 1987). 6. Finally, petitioner contends (Pet. 15-16) that the district court erred in declining to instruct the jury on the lesser-included offense of unarmed robbery of money or other property of the United States. The court of appeals correctly upheld the trial court's ruling. Lesser-included offense instructions should be given when, inter alia, (1) the record contains evidence to support conviction on the lesser offense and (2) proof of the elements that distinguish the two offenses is sufficiently disputed that the jury could consistently acquit on the greater offense and convict on the lesser. United States v. Roy, 843 F.2d 305, 310 (8th Cir.), cert. denied, 487 U.S. 1222 (1988). Neither of these conditions obtained here. Petitioner and his co-defendant did not present any evidence to suggest that they committed the post office robbery unarmed. The evidence that they were armed, provided by the testimony of Waites and Mackey, was uncontradicted. For this reason, as the court of appeals concluded (Pet. App. 23a), the district court was not required to give a lesser-included offense instruction. See United States v. Flint, 534 F.2d 58, 60 (5th Cir.), cert. denied, 429 U.S. 924 (1976). 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, George E. Moore, was convicted of the same offenses, received an identical sentence, and is also seeking review of his conviction in this Court. Moore v. United States, petition for cert. pending, No. 90-6423. /2/ The evidence showed that petitioner and Moore had obtained the gun from Kurt Zurschmiede. Petitioner and Moore, accompanied by Vonda Jorgensen, visited Zurschmiede in early March 1987. During the visit, Zurschmiede gave petitioner and Moore a gun to practice shooting. Zurschmiede's description of that gun fit Waites's description of the gun carried by Moore during the robbery here. Gov't C.A. Br. 7. /3/ In pertinent part, Fed. R. Crim. P. 17(b) directs a court to issue a subpoena for a named witness on the ex parte application of a defendant "upon a satisfactory showing that * * * the presence of the witness is necessary to an adequate defense." /4/ The court noted (Pet. App. 26a) that several other courts of appeals had rejected arguments similar to the one advanced by petitioner and his co-defendant. See, e.g., United States v. Shavers, 820 F.2d 1375, 1378 (4th Cir. 1987). /5/ Fed. R. Evid. 609 provides in pertinent part that a witness's credibility may be impeached through evidence of a criminal conviction only if the crime was (1) punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant * * *. /6/ The court of appeals noted that the district court permitted the government to introduce only one of several prior convictions, and, immediately after petitioner acknowledged the conviction, admonished the jury to consider it only for its impeachment value. Pet. App. 37a-38a. /7/ Petitioner took an active role in his defense, e.g., by calling Jorgensen as a defense witness against the advice of his counsel. See Pet. App. 7a. Petitioner's participation in his own defense is inconsistent with his claims of disabling pain. /8/ Contrary to petitioner's claim (Pet. 14), the Court did not decide Simpson on double jeopardy grounds. Instead, the Court specifically declined to reach the constitutional issue. 435 U.S. at 11-13. /9/ In relevant part, the amended statute provides: Whoever, during and in relation to any crime of violence * * *, including a crime of violence * * * which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon * * *, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence * * *, be sentenced to imprisonment for five years * * *.