HOLLIS WESLEY SHAW, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7413

   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 Fifth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. A) is reported at
894 F.2d 689.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 2,
1990.  The petition for a writ of certiorari was filed on April 30,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether petitioner's post-trial statements were obtained in
violation of his rights under the Fifth and Sixth Amendments of the
Constitution because he did not sign a waiver of rights form after
being advised of his rights to silence and counsel.

   2. Whether a witness's in-court identification of petitioner was
tainted by pretrial photographic and showup identification procedures.

   3. Whether the charge to the jury on reasonable doubt and the
presumption of innocence was adequate.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Eastern District of Louisiana, petitioner was convicted on two counts
of armed bank robbery, in violation of 18 U.S.C. 2113(d).  He was
sentenced to concurrent prison terms of 63 months, and to five years
of supervised release;  in addition, he was ordered to pay restitution
of $3,814, and a special assessment of $100.  The court of appeals
affirmed.

   1. On March 8, 1989, a lone gunman wearing a ski mask and a jeans
outfit robbed the Peoples Bank and Trust of Poydras, Louisiana.  The
robber carried a silver-colored pistol.  The loss to the bank was
approximately $1,858.  Gov't C.A. Br. 3.

   Two days later, on March 10, an individual wearing a ski mask and a
jeans outfit robbed the First National Bank of St. Bernard, Louisiana.
 Surveillance cameras showed the robber removing his weapon from the
right rear pocket of his trousers.  Gov't C.A. Br. 4.

   FBI agents and the St. Bernard Sheriff's Office investigated the
robberies.  One of the tellers at the St. Bernard bank, Denise Madary,
revealed that she had observed the robber in the parking lot before he
donned his mask.  Madary was shown a black-and-white photo spread of
six men.  Madary did not identify any of the men depicted in the
photos as the robber.  Petitioner's photo was not among the six in
that array.  Madary was then shown a group of color photographs that
included petitioner's photo.  She selected petitioner's photograph,
stating that she was 95% certain that he was the robber.  To resolve
her remaining doubts, she asked to view petitioner in person.  Gov't
C.A. Br. 4.

   The FBI conducted a check of calls for a taxicab in the area of the
bank at the time of the robbery.  They went to the residence of
Derrick Mercadel, who had ordered a cab around that time.  Mercadel
indicated that he called a cab for an individual fitting the physical
description of the bank robber.  When the taxi did not respond after
about twenty-five minutes, petitioner left.  Mercadel stated that
petitioner returned shortly thereafter, stating that he had lost a
white bag.  Gov't C.A. Br. 5.

   While the agents were conversing with Mercadel, petitioner appeared
at the residence.  Mercadel identified petitioner as the man who had
asked him to call the cab earlier in the day.  Petitioner, who matched
the description given by the bank employees of the robber, was
immediately arrested.  A search of his person uncovered a loaded
silver-colored pistol in the right rear pocket of his trousers.  Gov't
C.A. Br. 5.

   During the arrest and search, an FBI agent advised petitioner of
his rights to counsel and silence.  After being placed in a government
vehicle, petitioner was again advised of his rights.  This time the
agent recited the rights from a printed form that contained room for a
suspect to affix his signature to a waiver of those rights.  Because
petitioner was handcuffed, he was unable to sign the waiver.  However,
he indicated that he understood his rights and was willing to answer
questions.  Gov't C.A. Br. 5-6.

   Petitioner admitted robbing the First National Bank of St. Bernard.
 He also told his interviewers where he had discarded the ski mask.
Petitioner led the FBI agents to a trash receptacle, where the mask
was recovered.  The agents then drove petitioner to the St. Bernard
bank, where teller Madary identified him as the man she had seen in
the parking lot just before the robbery.  Gov't C.A. Br. 6-7.

   Petitioner was then taken to the St. Bernard police headquarters.
Once again he was advised of his rights and handed a written waiver
form.  Petitioner declined to sign the form, stating that he could not
read or write well.  However, he agreed to answer questions.
Petitioner proceeded to give specific details of both bank robberies.
Gov't C.A. Br. 6-7.

                               ARGUMENT

   1. Petitioner alleges (Pet. 5-8) that his admissions should have
been suppressed because they were obtained in violation of his Fifth
Amendment privilege against self-incrimination and his Sixth Amendment
right to counsel.  The district court conducted a voluntariness
hearing, after which it credited the testimony given by government
witnesses and found that petitioner had been fully advised of his
rights and had voluntarily waived them before making the statements he
sought to exclude.  That fact-bound determination, which the court of
appeals found was supported by the record, does not warrant further
review by this Court.

   In any event, petitioner's claim is based solely on the evidence
that he never signed a waiver of rights form, although twice presented
with such a form.  The inability, failure, or even the refusal, to
sign a waiver of rights form does not preclude a finding that
statements made by a defendant are voluntary.  North Carolina v.
Butler, 441 U.S. 369, 375-376 & n.5 (collecting decisions from every
circuit).  The evidence credited by the courts below showed that,
although petitioner was not originally given the opportunity to sign
the waiver because he was handcuffed, he orally acknowledged his
awareness of his rights.  Later, petitioner declined to sign the
waiver and claimed that he was illiterate.  Petitioner does not
contend that he was unaware of his rights at that point.  On these
facts, the court's conclusion that he voluntarily waived his right to
remain silent was clearly correct, and does not merit further review.

   2. Petitioner contends (Pet. 9-11) that the pretrial identification
procedures employed by the government tainted witness Madary's
in-court identification of him as the bank robber.  He alleges that
both the six-person color photo array shown to Madary and the
single-person showup were impermissibly suggestive and created a
likelihood of irreparable misidentification (Pet. 9-11).

   These contentions are meritless.  Petitioner's complaint regarding
the photo array is merely that his photograph was clearer than the
other five.  The courts below examined the array and rejected this
contention.  The court of appeals rightly stated that "(h)aving found
that the photo array was not impermissibly suggestive, the inquiry as
to this procedure ends." Pet. App. A4.  In any event, insignificant
differences among various photos within a grouping do not render the
array impermissibly suggestive.  See United States v. Alexander, 868
F.2d 492, 495-496 (1st Cir.), cert. denied, 110 S.Ct. 507 (1989);
Cikora v. Dugger, 840 F.2d 893, 897 (11th Cir. 1988);  United States
v. Whitney, 787 F.2d 457, 459 (8th Cir. 1986).

   But even if the photo array was suggestive, petitioner's argument
is unavailing.  The admissibility of identification evidence is
governed by a two-step analysis.  Convictions based on eyewitness
identification following a pretrial identification will be set aside
if the identification procedure (1) is impermissibly suggestive and
also (2) gives rise to a very substantial likelihood of irreparable
misidentification.  That standard applies to showups as well as
photographic identification procedures.  Neil v. Biggers, 409 U.S.
188, 196-199 (1972);  Simmons v. United States, 390 U.S. 377, 384
(1968).

   Biggers requires an examination of the totality of the
circumstances to determine whether a procedure that is impermissibly
suggestive gives rise to a substantial likelihood of
misidentification.  The factors to be considered are (1) the
opportunity of the witness to view the criminal, (2) the witness's
degree of attention, (3) the accuracy of any previous description of
the suspect given by the witness, (4) the witness's level of
certainty, and (5) the elapsed time between the crime and the
identification.  409 U.S. at 199-200;  see also Manson v. Brathwaite,
432 U.S. 98, 114 (1977).

   An examination of each of these factors supports the court of
appeals' conclusion that there was no substantial likelihood of
misidentification.  Madary testified that she watched petitioner
attentively when he was in the parking lot.  She gave an accurate
description of him to the police before the showup.  She was 95%
certain that the photograph she selected from the array portrayed the
bank robber.  The photographs were viewed only a half-hour after the
robbery and the showup occurred just a few hours later.  In these
circumstances, the court justifiably concluded that there was no
substantial likelihood of misidentification due to possibly suggestive
pre-trial procedures.

   Finally, the evidence of guilt was overwhelming.  Therefore, any
possible impropriety in the pretrial identification procedures was
harmless beyond a reasonable doubt.  United States v. Hasting, 461
U.S. 499, 507-509 (1983);  United States v. Causey, 834 F.2d 1277,
1287 (6th Cir. 1987), cert. denied, 486 U.S. 1034 (1982);  United
States v. Watkins, 741 F.2d 692 (5th Cir. 1984).

   3. The trial court gave the standard Fifth Circuit pattern charge
at the close of the trial, advising the jury that the indictment was
not evidence of guilt, that petitioner was presumed innocent and was
not bound to produce any evidence, that the government bore the burden
of proving guilt beyond a reasonable doubt, and that the failure to
meet that standard of proof required the jury to acquit.  See Gov't
C.A. Br. 16;  see also United States v. Walker, 861 F.2d 810, 812 (5th
Cir. 1988).

   Petitioner alleges that the charge was inadequate because it failed
to inform the jury that he started off with a clean slate and that the
presumption of innocence was sufficient to find him not guilty (Pet.
12-13).  Petitioner notes that in Walker the court recommended giving
more detailed instructions in the manner desired by petitioner.

   Petitioner's complaint does not warrant review by this Court.
Neither the Fifth Circuit in Walker nor any other court has reversed a
conviction because the language desired by petitioner was not included
in the closing charge.  Thus, petitioner cannot demonstrate the
existence of a conflict among the circuits.  Nor does petitioner
present any other reason for using his case as a vehicle for examining
the adequacy of the reasonable doubt and presumption of innocence
charges given to the jury in this case.  Neither in Walker nor in
petitioner's case did the Fifth Circuit hold that the instruction
actually given was in any way defective;  the court merely recommended
a more explicit charge.  That expression of preference is not a matter
that warrants further review.

   In fact, the closing charge, examined as a whole, see Francis v.
Franklin, 471 U.S. 307, 315 (1985);  Cupp v. Naughten, 414 U.S. 141,
147 (1973), fairly advised the jury that unless the government proved
guilt beyond a reasonable doubt, a verdict of acquittal was mandatory.
 The reasonable doubt instruction, coupled with the charge on the
presumption of innocence, was sufficient to inform the jury that
petitioner was innocent until the jury found that the government had
met its burden of proof beyond a reasonable doubt.

                              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

   MERVYN HAMBURG

      Attorney

   AUGUST 1990