ROBERT ADAM BROWN, PETITIONER V. UNITED STATES OF AMERICA No. 89-6793 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-10) is unreported. JURISDICTION The judgment of the court of appeals was entered on December 27, 1989. The petition for a writ of certiorari was filed on February 27, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, in a prosecution for arson involving the use of gasoline, police officers' responsibility for the destruction of certain gasoline found at the crime scene violated the Due Process Clause. 2. Whether the limitation of petitioner's cross-examination of the victim about her service as an informant and the preclusion of testimony by a defense witness on that subject violated the Confrontation Clause and the Compulsory Process Clause of the Sixth Amendment. STATEMENT After a jury trial in the United States District Court for the Northern District of Oklahoma, petitioner was convicted on one count of attempting to damage or destroy a building used in an activity affecting interstate commerce, by means of fire or an explosive, in violation of 18 U.S.C. 844(i), and one count of possessing an unregistered destructive device, in violation of 26 U.S.C. 5861(d) and 18 U.S.C. 5845(a) and (f). He was sentenced to concurrent terms of six years' imprisonment. The court of appeals affirmed. Pet. App. 1-10. 1. The evidence at trial showed that Bonnie Jones and her husband, Sherman Jones, from whom she was legally separated, were co-owners of the Country Keg, a tavern located outside of Claremore, Oklahoma. /1/ As part of the separation order entered on December 10, 1987, the state court awarded Bonnie temporary custody of the Keg and barred Sherman from entering either the tavern or the adjacent trailer in which Bonnie lived. Sherman, upon learning of the court order, confronted Bonnie at the Keg and threatened that he would "see the Keg blowed up or burnt down before you get it." 1 Tr. 50. Petitioner, who was Sherman's best friend, accompanied him. Shortly thereafter, someone telephoned Bonnie and told her that she was "a dead bitch for trying to screw Sherman out of the Country Keg." 1 Tr. 51. According to Bonnie, the caller sounded like petitioner. Pet. App. 2, 7; Gov't C.A. Br. 2-3, 9, 42. About a month later, at 1:30 a.m. on January 13, 1988, Bonnie heard a vehicle idling loudly outside the Keg. The vehicle drove away with its lights off. The vehicle returned ten minutes later, and again drove away with its lights off. As the vehicle drove onto the highway in front of a passing car, Bonnie recognized it as petitioner's pick-up truck. Bonnie then walked over to the Keg, where she smelled smoke, gasoline, and burned grass. With a flashlight, she also found an "Always Save"-brand pickle jar partially filled with gasoline on the ground. Bonnie called the sheriff, and then heard the pick-up again driving toward the Keg. She shined her flashlight on the driver from about ten feet away and saw petitioner as he put his hand over his face. Bonnie called the sheriff again, identifying petitioner as the person who had tried to burn down the Keg. Pet. App. 2; Gov't C.A. Br. 4-6, 9-10, 42-43. Two deputy sheriffs arrested petitioner several minutes later as he was driving down the highway about five miles west of the Keg. He smelled strongly of gasoline. In the bed of his pick-up, the deputies found two cigarette lighters, gloves, rags, a partially filled one-gallon gas can, and a nearly empty five-gallon gas can. Pet. App. 3; Gov't C.A. Br. 6-7, 10, 43. /2/ The deputies who inspected the Keg that night detected a strong odor of gasoline around the building and noticed that several areas of the roof had been burned. They retrieved the pickle jar that Bonnie had discovered. On the roof, the deputies found the jar's lid, which had a hole cut through it; stuck through the hole was a partially burned lamp wick wet with gasoline. Fully assembled, the jar, gasoline, and wick constituted a Molotov cocktail, an incendiary device. /3/ Two days later, ATF agents executed search warrants at petitioner's house and a closed-down bar he owned, which was located about two miles east of the Keg. At petitioner's house, agents found oil lamps and an "Always Save"-brand pickle jar identical to the Molotov cocktail jar found at the Keg. At the bar, they found a kerosene lamp that was missing its wick, and a jar similar to the Molotov cocktail jar, with a hole cut through its lid. Pet. App. 2-3; Gov't C.A. Br. 8-10, 43-44. Four days after the crime, deputy sheriffs searched the Keg again as part of an unrelated investigation regarding Sherman Jones's possession of firearms. See Gov't C.A. Br. 16 n.3. The deputies found in a storeroom a small plastic container partially filled with gasoline. Bonnie explained that the can belonged to some customers who had used it the previous month to start a stalled truck in front of the Keg. She had taken it from them after one of the men burned himself trying to fix the truck; she had forgotten about the can until the deputies found it. The deputies told her to remove the can. Bonnie emptied the can by a nearby tree and left it there until Lyle Copeland, the burned customer, retrieved it when he stopped by the bar a few weeks later. Pet. App. 3; Gov't C.A. Br. 16-17; 1 Tr. 65-69; 2 Tr. 187-190, 214, 256-257. /4/ 2. a. At trial, after Bonnie testified that she had discarded the gasoline found in the storeroom, petitioner moved to dismiss the indictment or, in the alternative, to strike her testimony on the ground that she had destroyed "vital" evidence at the government's direction. 2 Tr. 190. Petitioner argued that, if that gasoline had been tested and shown to match the gasoline in the Molotov cocktail, it would have exculpated him. See 2 Tr. 190-191. The district court denied the motion without comment. 2 Tr. 191. The court later denied petitioner's renewed motion, stating that it did "not find this conduct from the evidence presented is of such an egregious nature to dictate that the Court dismiss the testimony of Bonnie Jones." 3 Tr. 440. b. Petitioner also sought to cross-examine Bonnie about what he characterized as her "informant" activities on behalf of the sheriff's office. Petitioner claimed that such activities "provided motive for other people to be mad at (her)," 2 Tr. 180, and that one of those persons might have been the arsonist. See Gov't C.A. Br. 11. Alternatively, petitioner suggested that Bonnie herself might have been the arsonist, and that the deputies had directed her to dispose of the storeroom gasoline in order to protect her. See Gov't C.A. Br. 17. /5/ The district court precluded petitioner from questioning Bonnie about her cooperation with the sheriff's office "because there is no way to determine whether or not that bore any sort of fruit of animosity in the community and that is too speculative." 2 Tr. 180. Nonetheless, the court made clear that petitioner had wide latitude to explore other matters that bore on Bonnie's credibility. See 2 Tr. 180. In a similar vein, petitioner proffered the testimony of Sherry Moore, Bonnie's sister. In an offer of proof, Moore testified that, a few months before the crime, Bonnie had told her that she feared for her life because she had "snitched" on a drug dealer named Cindy Bates. 3 Tr. 481-483. Petitioner sought to present Moore's testimony to show that Bonnie was an informant and thus raise "the possibility of other people having motivation (to commit the arson)." 3 Tr. 472. The court refused to allow the testimony, concluding that it was not relevant to the truth or falsity of any witness's testimony and that it was too speculative, since there was no indication that the drug dealer was aware that anyone, much less Bonnie, had "snitched" on her. 3 Tr. 483-488. 3. The court of appeals affirmed. Pet. App. 1-10. In the court of appeals, petitioner contended (Pet. C.A. Br. 24-35) that the destruction of the storeroom gasoline deprived him of potentially exculpatory evidence in violation of the Due Process Clause. The court of appeals stated that, under California v. Trombetta, 467 U.S. 479, 489 (1983), relief is available only where the destroyed evidence "possess(es) an exculpatory value that was apparent before it was destroyed, and * * * (is) of such nature that the defendant would be unable to obtain comparable evidence by other reasonable means." Pet. App. 4. Here, the court determined, the exculpatory potential of the storeroom gasoline rested on petitioner's "wholly * * * speculati(ve)" assertion that Bonnie had tried to burn her own building with the gasoline. Id. at 5. Moreover, the court explained, since Bonnie was not a suspect in the arson when the deputies searched the Keg, "any exculpatory value that the gas container possessed was not apparent to the sheriffs at the time the gas was discarded." Ibid. Petitioner therefore had not met his burden under Trombetta. In any event, since the deputy sheriffs directed Bonnie to discard the gasoline out of a legitimate concern for her safety from a possible fire hazard, the court concluded that "the record reveals no evidence of bad faith by the sheriffs." Ibid. Under Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988), petitioner therefore was not entitled to relief. Petitioner also contended (Pet. C.A. Br. 35-47) that the district court's limiting his cross-examination of Bonnie about her service as an informant and precluding Moore's testimony on that subject violated the Confrontation Clause and the Compulsory Process Clause of the Sixth Amendment. The court of appeals rejected petitioner's challenge to the cross-examination ruling, concluding that "(w)hether Bonnie Jones informed on a drug dealer is, at best, tangential to her testimony surrounding the attempted arson of the Keg." Pet. App. 6. Moreover, the court determined that the trial court's ruling did not prejudice petitioner, because she "was cross-examined extensively concerning her veracity and a previous instance where she lied to a judge was introduced into evidence," id. at 6-7, /6/ thus leaving the jury "an adequate basis on which to assess Jones's credibility," id. at 7. The court of appeals also upheld the trial court's exclusion of Moore's proffered testimony. On the record presented, the court concluded, the trial court did not abuse its discretion in determining that whether Bonnie "feared reprisals" from a drug dealer "had no bearing on the truth of (her) testimony," Pet. App. 5, "was * * * not relevant to her credibility," ibid., and was "too speculative to warrant admission," id. at 6, particularly where, as here, "there was no indication that the drug dealer knew that Bonnie Jones had been a one-time informant," ibid. /7/ ARGUMENT 1. Petitioner renews his contention (Pet. 11-15) that the destruction of the storeroom gasoline deprived him of potentially exculpatory evidence in violation of the Due Process Clause. In particular, petitioner asserts that the sheriff's deputies acted in bad faith when they directed Bonnie Jones to discard gasoline that, in his view, "belong(ed) to the 'victim,' who * * * could have been proven to be the actual arsonist if the gasoline had been tested." Pet. 11. In Arizona v. Youngblood, 109 S. Ct. 333, 337 (1989), the Court emphasized that the police do not have "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." Similarly, in California v. Trombetta, 467 U.S. 479, 488 (1984), the Court concluded that the constitutional duty to preserve evidence "must be limited to evidence that might be expected to play a significant role in the suspect's defense." Here, as the court of appeals correctly determined, petitioner's claim that the discarded gasoline was potentially exculpatory evidence rested upon the "wholly * * * speculati(ve)" premise that Bonnie herself had tried to burn down the Keg with it. Pet. App. 5. As Youngblood and Trombetta make clear, however, such speculation does not satisfy the constitutional standard of materiality that triggers the government's duty to preserve evidence. Indeed, petitioner's assertion that the discarded gasoline, if tested, "could have proven" that he was not the arsonist relies upon the same standard of materiality expressly rejected in Youngblood, 109 S. Ct. at 336 n. * * -- "(t)he possibility that (the evidence) could have exculpated (the defendant) if preserved or tested is not enough to satisfy the standard of materiality in Trombetta." /8/ In addition, petitioner did not show that whatever exculpatory value the gasoline might have had was apparent to the deputies before it was discarded. Pet. App. 5; see California v. Trombetta, 467 U.S. at 489; Arizona v. Youngblood, 109 S. Ct. at 337 n.** ("The presence or absence of bad faith by the police must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed."). Contrary to petitioner's assertion, the gasoline was scarcely "suspicious." Pet. 14. The deputies had no reason to believe that Bonnie was the arsonist -- and never considered her a suspect, see Gov't C.A. Br. 18 n. 6 -- particularly in light of the incriminating evidence seized from petitioner's truck at the time of his arrest and the corroborating evidence later seized from his house and tavern. And any conceivable "suspicion" surrounding the gasoline was dispelled by Bonnie's contemporaneous explanation -- at no time controverted by petitioner -- that she had taken it away from a customer who had mishandled it in trying to start up his truck. See p. 5, supra. /9/ Finally, petitioner's assertion (Pet. 10-14) that the deputies acted in bad faith is belied by the record. The court of appeals, in affirming the district court's determination, see 3 Tr. 440, found that the record "reveals no evidence of bad faith by the sheriffs in instructing Bonnie Jones to discard the gasoline; rather, they appear to have acted out of concern for her safety," Pet. App. 5. There is no reason to disturb those concurrent findings of both lower courts. See, e.g., Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 318 n.5 (1985); Berenyi v. Immigration Director, 385 U.S. 630, 635-636 (1967). And petitioner ignores the record when he alleges that the deputies "concealed" (Pet. 14) and "withheld" (Pet. 10) their discovery from both the prosecutor and him. See 1 Tr. 24-28. 2. Petitioner also renews his contention (Pet. 15-17) that the district court's limiting his cross-examination of Bonnie about her service as an informant and precluding Moore's testimony on that subject violated the Confrontation Clause and the Compulsory Process Clause of the Sixth Amendment. According to petitioner, he sought to show that Bonnie's informant activities gave the deputies a motive for protecting her if she were in trouble, and that, if that motive were taken into account, the jury might deduce that she was the arsonist. Pet. 15. /10/ In Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986), this Court held that "(b)y * * * cutting off all questioning about an event that (the government) conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court's ruling violated (the defendant's) rights secured by the Confrontation Clause." /11/ The Court made clear, however, that the defendant's right to cross-examine is not absolute: "(T)rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Ibid.; see Davis v. Alaska, 415 U.S. 308, 316 (1974). Here, as the court of appeals correctly determined, the line of cross-examination that petitioner sought to pursue was "at best, tangential to (Bonnie Sherman's) testimony surrounding the attempted arson of the Keg." Pet. App. 6. The district court acted well within its discretion in seeking to insure that jurors would not be misled or confused by a series of attenuated inferences calculated to distract them from the relevant evidence in the case. As the court of appeals pointed out, see id. at 7, the jury received sufficient information to make a discriminating appraisal of Bonnie's motives for testifying against petitioner. Indeed, petitioner "cross-examined (Bonnie) extensively concerning her veracity." Id. at 6. And petitioner fully exploited the incident in which Bonnie first "informed" on her husband's drug possession, pleaded guilty herself, and then withdrew her plea. See id. at 6-7; see note 6, supra. On this record, therefore, petitioner's challenge to the district court's limiting his cross-examination of Bonnie Sherman rings hollows. Petitioner's challenge to the district court's rejection of Sherry Moore's proffered testimony fares no better. As this Court concluded in United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1981), in order to establish a violation of the Compulsory Process Clause, the defendant "must at least make some plausible showing how (the proffered) testimony would have been both material and favorable to his defense." Accord Washington v. Texas, 388 U.S. 14, 16 (1967). In this case, however, Moore's proffered testimony about Bonnie Moore's one-time cooperation with the sheriff's department "was * * * not relevant to her credibility," Pet. App. 5, and was "too speculative to warrant admission," id. at 6, particularly where, as here, "there was no indication that the drug dealer knew that Bonnie Jones had been a one-time informant," ibid. /12/ In these circumstances, the courts below properly rebuffed petitioner's attempt to introduce immaterial evidence before the jury. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General VICKI S. MARANI Attorney MAY 1990 /1/ The evidence is summarized in the opinion of the court of appeals, see Pet. App. 2-3, and in the government's brief filed in the court of appeals, see Gov't C.A. Br. 2-15, 42-44. /2/ At trial, Sherman Jones and another defense witness testified that since the gas gauge in petitioner's pick-up was broken, he kept extra gas on hand. 3 Tr. 446-447, 489-490. /3/ A forensic chemist from the Department of the Treasury, Bureau of Alcohol, Tobacco, and Firearms, compared samples of the gasoline in the jar and the gasoline contained in one of the cans found in petitioner's pick-up. 3 Tr. 394-397. He was not able to determine conclusively whether the samples matched because the can had been contaminated by various gasolines. The chemist, however, did not rule out that possibility. 3 Tr. 397-398. Petitioner's bare statement that the samples "did not match" (Pet. 9) is therefore misleading. Petitioner also asserts misleadingly that hair samples and fingerprints taken from him and compared to hair and fingerprints "discovered on items at the Keg * * * did not match." Pet. 9. An ATF fingerprint specialist testified that there were "no discernible, identifiable fingerprints on the jar." 3 Tr. 422-423. As for the alleged hair comparison, the forensic chemist explained that only one strand of hair had been retrieved from the scene of the crime (i.e., from a burned rag found in the roof gutter), and that "one hair by itself is not a valid basis by which we can make a comparison analysis." 3 Tr. 398, 401. Moreover, the comparison hair had been taken from petitioner's jacket and thus might not even have come from petitioner. 3 Tr. 399. Even if a comparison hair had been taken from petitioner's head, an accurate comparison might not have been possible, because not every strand of hair is "totally representative" of the rest of a person's hair. 3 Tr. 400-401. /4/ As petitioner points out (Pet. 9), the court of appeals mistakenly assumed that the deputies had discovered the gas can "several weeks" after the crime. Pet. App. 3. The record makes clear that the discovery occurred several days after the incident. See 2 Tr. 189, 256-257; Gov't C.A. Br. 16. /5/ Bonnie was not an "informant" in the sense implied by petitioner, i.e., that she was a steady source of information to the sheriff's department. Her only "informant" activities consisted of turning over to the sheriff's department drugs that she had found in her husband's wallet and identifying the woman who had supplied them. Petitioner neither introduced nor sought to introduce any evidence that this woman knew or had reason to know of Bonnie's disclosures about her. Gov't C.A. Br. 11. /6/ The court of appeals referred to the fact that when Sherman Jones threatened to kill Bonnie after she had turned over his drugs to local authorities, she exonerated him, confessed to the crime, and pleaded guilty to drug possession charges in state court. The state court later permitted Bonnie to withdraw that plea after hearing evidence of her duress. See Gov't C.A. Br. 11-15. /7/ The court of appeals also rejected petitioner's claims that the district court erroneously admitted Bonnie's testimony about her husband's threats and the threatening telephone call into evidence, Pet. App. 7-8, and that the government had not presented sufficient evidence of the charged offenses, id. at 9-10. Petitioner has not sought further review of those claims. /8/ In Arizona v. Youngblood, supra, a child sexual assault prosecution, the Court upheld the state court's determination that police officers had not acted in bad faith by failing properly to preserve and test clothing and swabs containing semen samples. 109 S. Ct. at 337. Petitioner tries (Pet. 13) to distinguish Youngblood, noting that the police conduct at issue there had been at most negligent, whereas here, the deputies had intentionally ordered the gasoline disposed. That asserted distinction is irrelevant, since the gasoline had no apparent exculpatory value. /9/ Even assuming that the gasoline's exculpatory value was apparent to the deputies, petitioner has not shown any prejudice. Petitioner concedes that he was able to argue to the jury that the "gasoline, if tested, might have compared positively to the gasoline from the Molotov cocktail." Pet. 14. He claims only that he was unable to make this argument "effectively." Ibid. That sort of circumstance, however, is not tantamount to prejudice. See Arizona v. Youngblood, 109 S. Ct. at 338 (Stevens, J., concurring in the judgment) (prejudice unlikely where defense counsel impressed upon jury fact that tests might have exonerated defendant). /10/ Petitioner has abandoned the principal argument he raised below in support of his Sixth Amendment claims, namely, that Bonnie's informant activities "provided motive for other people to be mad at (her)," 2 Tr. 180, and that one of those persons might have been the arsonist. See Gov't C.A. Br. 11. /11/ Here, of course, the government never even conceded that Bonnie was an "informant" in the sense implied by petitioner. See note 5, supra. /12/ Petitioner asserts that the district court's rulings were "similar to the dual denial of the right to cross-examine a hostile witness and the exclusion of a defense witness held by this Court to be a denial of due process in Chambers v. Mississippi, 410 U.S. 284, 298, 302 (1973)." Pet. 17. That assertion is wide of the mark. In that murder prosecution, the state's common law "voucher" rule precluded Chambers from cross-examining his own witness about the latter's three prior oral confessions -- and his renunciation of a written confession -- to the crime for which Chambers was on trial. The state trial court also prohibited Chambers, on hearsay grounds, from calling three persons to testify to the witness's confessions. The evidence at issue in Chambers thus bore directly on the defendant's guilt or innocence. By contrast, the evidence excluded here -- testimony regarding Bonnie Jones's one-time cooperation with the sheriff's department -- was plainly collateral to any relevant issue in dispute.