STEPHEN G. ASHLEY, MICHAEL BLACKWOOD AND IAN WILLIAMS, PETITIONERS V. UNITED STATES OF AMERICA No. 90-5676 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 District Of Columbia Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-16) is unpublished. JURISDICTION The judgment of the court of appeals was entered on June 11, 1990. The petition for a writ of certiorari was filed on Monday, September 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court erred in declining to suppress statements made by petitioners in response to routine booking questions asked by a police officer. 2. Whether exigent circumstances supported a police officer's forcible entry pursuant to a warrant without announcing his purpose or waiting to be refused admittance. 3. Whether the district court showed bias in its conduct of petitioners' trial. 4. Whether the warrant authorizing the search of the house where petitioners were arrested sufficiently particularized the area to be searched. 5. Whether the district court committed plain error by failing to instruct the jury that it had to agree unanimously on the drugs and weapons possessed by each defendant at petitioners' trial. STATEMENT After a jury trial in the United States District Court for the District of Columbia, petitioners were convicted of possession with intent to distribute cocaine, possession with intent to distribute in excess of 50 grams of cocaine base, and possession with intent to distribute marijuana, all in violation of 21 U.S.C. 841(a)(1), and of using a firearm in relation to drug trafficking, in violation of 18 U.S.C. 924(c). Petitioners Ashley and Blackwood were sentenced to 120 months' imprisonment; petitioner Williams was sentenced to 132 months' imprisonment. Each petitioner also was sentenced to five years' supervised release. The court of appeals affirmed. Pet. App. 1-16; Gov't C.A. Br. 2. 1. On March 7, 1988, officers of the Washington, D.C. Metropolitan Police Department Emergency Response Team executed a search warrant for 742 Rock Creek Church Road, N.W. Prior to their arrival, the officers had been informed that the occupants of the house possessed automatic weapons and that a lookout in the building also was armed. As Sergeant Exum of the Emergency Response Team approached the front door of the house, he was advised that a lookout in the house had observed the police arrive. Sergeant Exum knocked on the door and shouted "police." At the door, Sergeant Exum could hear people moving around inside the house. At the same time, an officer at the back of the house informed Exum that people were coming out the back. Sergeant Exum immediately forced the door of the house open with a battering ram without further announcing his purpose. About five seconds elapsed between the time Sergeant Exum knocked on the door and the time he used the battering ram. Pet. App. 5; Gov't C.A. Br. 2-4. The officers secured the house and handcuffed petitioners and the other occupants. Prior to informing petitioners of their rights under Miranda v. Arizona, 384 U.S. 436 (1966), Officer Nancy Brown asked each of the occupants of the house his name, address, date of birth, social security number, where he was staying if he had given an out-of-town address, and his height and weight. Gov't C.A. Br. 4; Pet. App. 6. Each of the occupants gave Officer Brown a name and address. Scattered throughout the house, the officers found cocaine, crack, marijuana, numerous firearms and ammunition, cash, records of drug transactions, and drug paraphernalia. Gov't C.A. Br. 10-11. 2. Petitioners and their codefendants moved to suppress the evidence obtained in the house on the grounds that the warrant was insufficiently particular and that the officers had violated the knock and announce statute. /1/ The defendants also sought to suppress the statements they made to Officer Brown on the ground that they had not received Miranda warnings before Officer Brown questioned them. At a suppression hearing held by the district court, six of the officers who participated in the execution of the search warrant testified that the house appeared to be a single family dwelling and that they had observed no locks or numbers on the doors to the rooms of the house. The district court denied the motions. It found that the questions asked by Officer Brown were part of the routine booking process and therefore did not have to be preceded by Miranda warnings. The court also found that the house outwardly appeared to be a single family dwelling and was being used as a narcotics safe house. For that reason, the court found, the warrant used to search the house did not need to specify the particular rooms to be searched. Finally, the court held that any failure to comply with the knock and announce statute was justified by exigent circumstances. Gov't C.A. Br. 2-7. 3. At trial, the district court asked several questions of witnesses. The court ascertained where various people were in the house after the police secured it and clarified the observations the police had made of the house before and during the search. The court commented during trial that five seconds may or may not be long enough for a person to answer a knock on the door. The court also expressed skepticism about the suggestion made by counsel for one of petitioners' codefendants that his injuries were not severe enough for someone who had dived through a window. Gov't C.A. Br. 17-18. Petitioners did not object to any of the court's comments or questions. Id. at 15. Petitioners asked the district court to instruct the jury that it had to agree unanimously on which of the guns and drugs in the house were possessed by each defendant. The district court failed to give the instruction, and petitioners and their codefendants did not object to this failure. Pet. App. 14; Gov't C.A. Br. 38-40. The court did instruct the jury that its verdict had to be unanimous, however, and the verdict form submitted to the jury required it to determine unanimously the particular gun used or carried by each defendant before convicting the defendant of a Section 924(c) offense. Gov't C.A. Br. 39 n.29; Appellants' C.A. R.R. VIII-181. 4. The court of appeals affirmed. Pet. App. 1-15. It held that petitioners had offered "no evidence whatsoever to suggest that the police should have known at the time the warrant was requested that the house was a rooming house rather than a single-family dwelling." Id. at 4. For this reason, the court concluded, the police officers had no duty to inquire further into the nature of the house, and the warrant was not invalid for failing to describe with particularity the portions of the house to be searched. The court also agreed with the district court that exigent circumstances excused the officers' failure to comply with the knock and announce statute's requirement that the officers announce their purpose. Id. at 5-6. In addition, the court concluded that the questions asked by Officer Brown before petitioners were given their Miranda warnings fell within the "routine booking" exception to Miranda. Id. at 6-7. The court of appeals also held that petitioners failed to preserve their objection to the district court's decision not to give a unanimity instruction regarding the drugs and weapons possessed by each defendant. Pet. App. 14-15. Finally, the court found no support in the record for petitioners' assertion that the district court's comments and questions during trial showed bias toward the defendants. Id. at 15. ARGUMENT 1. Petitioners contend (Pet. 7-11) that the court of appeals erred, under the circumstances of this case, in applying a "routine booking question" exception to the requirements of Miranda v. Arizona, 384 U.S. 436 (1966). In addition, they argue that the court of appeals' decision conflicts with the decisions of other courts on this subject. This contention is without merit. In Pennsylvania v. Muniz, 110 S. Ct. 2638 (1990), a plurality of this Court recognized a "routine booking question" exception to the Miranda rule. The plurality, consisting of four Justices, held that under this exception, a police officer did not violate the Miranda rule by asking a suspect his name, address, height, weight, eye color, date of birth, and current age. 110 S. Ct. at 2649-2650. Four other Justices agreed that such questions did not violate Miranda, but for the reason that the suspect's responses to the booking questions were not testimonial. Id. at 2653-2654 (Rehnquist, C.J., concurring in judgment). Thus, eight Members of the Court agreed that Miranda does not prohibit police officers from asking routine booking questions of a suspect in custody without giving the suspect the warnings required by Miranda. Here, petitioners were asked essentially the same questions asked of the suspect in Muniz. /2/ Contrary to petitioners' claim, review is unnecessary to clarify the scope of the routine booking exception to Miranda. Prior to Muniz, the courts of appeals agreed that Miranda warnings ordinarily are not required before police ask routine booking questions. See United States v. Carmona, 873 F.2d 569, 573 (2d Cir. 1989); United States v. Horton, 873 F.2d 180, 181 (8th Cir. 1989); Gladden v. Roach, 864 F.2d 1196, 1198 (5th Cir.), cert. denied, 109 S. Ct. 3192 (1989); United States v. Taylor, 799 F.2d 126, 128 (4th Cir. 1986), cert. denied, 479 U.S. 1093 (1987); Robinson v. Percy, 738 F.2d 214, 219 (7th Cir. 1984); United States v. Avery, 717 F.2d 1020, 1024-1025 (6th Cir. 1983), cert. denied, 466 U.S. 905 (1984); United States v. Glen-Archila, 677 F.2d 809, 815-816 (11th Cir.), cert. denied, 459 U.S. 874 (1982); United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981). Nor is there any conflict in the courts of appeals over whether, during a booking procedure, the police may ask questions designed to elicit incriminating admissions. As the Muniz plurality recognized, police officers may not ask such questions unless a suspect waives his or her Miranda rights. 110 S. Ct. at 2650 n.14. /3/ In this case, the court of appeals found that the arresting officers did not ask the booking questions with the intent to obtain incriminating answers. See Pet. App. 6-7 ("The process clearly was a predominately clerical procedure, intended primarily for record keeping. * * * We conclude that Officer Brown's questions were of a type ordinarily innocent of any investigative purpose and therefore find that the (petitioners') statements need not be suppressed.") (internal quotation marks omitted). Accordingly, petitioners' claim does not warrant review. 2. Petitioners next claim (Pet. 12-14) that the court of appeals erred in concluding that exigent circumstances justified the officers executing the search warrant on the Rock Creek Church Road house in battering open the door without announcing their purpose. This fact-bound claim is without substance. The "knock and announce" statute -- under both the D.C. and federal versions -- permits an officer executing a search warrant to break into the premises to be searched if "after notice of (the officer's) authority and purpose, he is refused admittance." D.C. Code 33-565(g); 18 U.S.C. 3109. Exigent circumstances, such as the need to prevent destruction of evidence, may, however, excuse the need to comply with the requirements of a knock and announce statute. See, e.g., United States v. Bonner, 874 F.2d 822, 823-824 (D.C. Cir. 1989); United States v. James, 764 F.2d 885, 888 (D.C. Cir. 1985); 2 W. LaFave, Search and Seizure Section 4.8(c) at 280 (2d ed. 1987) ("It is generally agreed that the police are excused from the usual notice requirement when reasonably acting to prevent destruction or disposal of the items named in the search warrant"). Here, Sergeant Exum knocked on the door and called out "police," but then broke down the door without further announcing his purpose or waiting to be refused admittance when he heard movement inside the house and learned that he had been spotted by a lookout and that people were coming out of the back of the house. Plainly, Sergeant Exum acted reasonably to prevent the destruction of evidence inside the house and protect the safety of the entry team. Consequently, the court of appeals correctly rejected this claim. 3. Petitioners argue (Pet. 15-18) that the district court denied them a fair trial by questioning witnesses, allowing introduction of hearsay evidence, permitting the prosecutor to lead a government witness over defense objections, and allowing the government to introduce irrelevant evidence. Petitioners assert that the court's actions "tilted" the trial in the government's favor. The court of appeals correctly rejected this claim and it does not warrant review. At the outset, petitioners do not explain or otherwise develop their contention that the district court's evidentiary and trial rulings were erroneous. In the absence of specific objections by petitioners, this Court cannot effectively review their claim. /4/ With regard to the district court's questions, moreover, as this Court long ago made clear, a federal judge in a criminal trial "is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law." Quercia v. United States, 289 U.S. 466, 469 (1933). Thus, the district court is permitted to question witnesses and comment on the evidence as long as it does not show partiality and bias. The court of appeals here specifically found, after a review of the record, that the district court did not "tilt the trial toward the prosecution" and that petitioners' contrary assertion was "without merit." Pet. App. 15. Petitioners provide no basis for challenging this fact-specific determination. 4. Petitioners next urge (Pet. 19-21) that the warrant to search the house at 724 Rock Creek Church Road insufficiently particularized the area of the house to be searched. Petitioners assert that the building was a rooming house and that the officers were required to obtain a warrant stating which rooms they were authorized to search. The courts below correctly rejected this contention. If the police officers who sought the warrant knew or should have known that the house at 724 Rock Creek Church Road contained more than one dwelling unit, they would have had to have a warrant allowing them to search individual rooms of the house. See Maryland v. Garrison, 480 U.S. 79, 85 (1987). But "(t)he validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate." Ibid. As the court of appeals held, petitioners "offer(ed) no evidence whatsoever to suggest that the police should have known at the time the warrant was requested that the house was a rooming house rather than a single-family dwelling." Pet. App. 4. Because there was no evidence to suggest to the officers that the house was not a single dwelling unit, they were under no duty to investigate further into the nature of the house, especially since any further investigation might have alerted the occupants of the house. Therefore, the warrant used to search the house was valid. 5. Petitioners' final contention (Pet. 22-27) is that the district court erred by failing to instruct the jury that the jurors had to agree unanimously as to which of the guns and drugs found in the house had been possessed by each defendant. Because petitioners did not object at trial to the court's failure to give the requested instruction, they must show that the absence of the instruction amounted to plain error. See United States v. Young, 470 U.S. 1, 15-16 (1985). To establish plain error, petitioners must show an "egregious" error amounting to a miscarriage of justice. Ibid. Petitioners cannot meet this standard. A general instruction that the jury must agree unanimously is usually sufficient to ensure jury unanimity. See United States v. Ryan, 828 F.2d 1010, 1019-1020 (3d Cir. 1987); United States v. Williams, 737 F.2d 594, 613-614 (7th Cir. 1984), cert. denied, 470 U.S. 1003 (1985); United States v. McClure, 734 F.2d 484, 494 (10th Cir. 1984); United States v. Ferris, 719 F.2d 1405, 1407 (9th Cir. 1983); United States v. Mangieri, 694 F.2d 1270, 1280 (D.C. Cir. 1982); United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert. denied, 425 U.S. 934 (1976). Here, the district court told the jury that the verdict must be unanimous. That instruction was sufficient. A specific unanimity instruction is required only in exceptional cases, as where there is demonstrable potential for jury confusion. See United States v. Beros, 833 F.2d 455, 462 (3d Cir. 1987); United States v. Ferris, 719 F.2d at 1407. No such exceptional circumstances are present here, and thus the district court did not commit plain error in failing to give a specific unanimity instruction. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /5/ ROBERT S. MUELLER, III Assistant Attorney General J. DOUGLAS WILSON Attorney NOVEMBER 1990 /1/ The pertinent provisions of the D.C. knock-and-announce statute (D.C. Code 33-565(g)) and the federal statute (18 U.S.C. 3109) are very similar. Because D.C. law also requires compliance with the federal statute (D.C. Code 23-524(a)), the acts of D.C. officers can be analyzed directly under the federal statute. See United States v. Bonner, 874 F.2d 822, 823 n.1 (D.C. Cir. 1989). /2/ In this case, petitioners also were asked their social security number; they were not asked their eye color. Pet. App. 6. /3/ Petitioner cites (Pet. 8) Avery, supra; Glen-Archila, supra; and United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983) to claim that there is a conflict among the Circuits regarding the scope of the "routine booking" exception. Those decisions, however, merely reflect the principle that, without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions. See 110 S. Ct. at 2560 n.14 (citing Avery, Glen-Archila, and Mata-Abundiz). /4/ Petitioners did raise one hearsay claim in the court of appeals, but that court rejected it. Pet. App. 7-8. Petitioners do not explain whether this hearsay ruling by the district court is the same one that they now claim shows the court's bias. Petitioners' codefendants raised only this hearsay claim in a separate petition for certiorari, which was denied. Crossfield v. United States, No. 90-5679, cert. denied (Oct. 9, 1990). /5/ The Solicitor General is disqualified in this case.