United States v. Beye

¶6PER CURIAM:

¶7Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545.

¶8Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970).1

¶9Appellant also asserts as error the court’s refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom a mistrial had been declared. The court had been advised that this proposed witness would assert his privilege against self-incrimination if questioned about the offense. A hearing out of the presence of the jury served to satisfy the court that such would indeed be the result were the witness called to the stand. Appellant contends, however, that he was entitled to require the witness to take the stand and invoke his privilege in the presence of the jury. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), holds to the contrary and we agree.

¶10Other points asserted by appellant we find to be without merit.

¶11Judgment affirmed.

¶13ELY, Circuit Judge

¶14(dissenting):

¶15I respectfully dissent. As I see it, the record is replete with error, and I would, if I could, reverse the judgment of conviction for several reasons.1 I *1039think it more desirable, however, to direct my principal dissenting comments to only one contention, i. e., that the trial judge erred in refusing to allow Beye to present his former codefendant as a defending witness. In my judgment, that refusal deprived Beye of an essentially fair trial, and the majority’s disposition of the issue subverts one of the most basic guarantees of the Constitution.

¶16After our court had given long and careful consideration to Beye’s Sixth Amendment claim, and while, in fact, various proposed opinions were in circulation, the United States Court of Appeals for the District of Columbia, sitting en banc, resolved a similar contention. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970). My Brothers dispose of Beye’s contention by adopting the majority opinion of the Bowles court. I prefer the approach taken by Chief Judge Bazelon, dissenting in Bowles, but I believe I can demonstrate that even the Bowles majority, had it been presented with the facts now before our court, would have reached an opposite conclusion. To do this, it is necessary that I first set forth, in more detail, the chronology of the events in the District Court, emphasizing, in contrast to Bowles, how greatly more prejudicial was the procedure in our case.

¶17Gene Curtis Smith, the man whom Beye sought to call to the witness stand, had been indicted as a codefendant on charges identical to those of which Beye was convicted. In his opening statement to the jury, Smith’s attorney announced that

“[t]he defendant Smith, Curtis Smith, will take the witness stand and will testify as to why they went and how they went to Mexico, what they did when they were in Mexico, who they met when they were in Mexico, and how he happened to be driving as they approached the Saltón Sea, and he will testify that he did not know the marijuana was-in the car. He will testify *1040as to this fact, we’re sure. He will offer no explanation on how it got into the car. He has none; but one thing he is sure: he’s sure he didn’t know it was there. And I imagine Mr. Milchen will cross-examine him at great length, and it will be for you to judge his credibility.”

¶18Thereafter, a mistrial was granted as to Smith, he was excused, and the trial of Beye continued. Thus, when Beye was later refused permission to call Smith as a witness, the jury was deprived of any opportunity to hear Smith exculpate Beye, had he finally chosen to present such testimony, or if he maintained his refusal to testify, to draw any inference opposing the representation which Smith’s attorney had made to the jury at the very beginning of the trial. As I see it, the prejudicial statement made by Smith’s attorney in our case, a circumstance not present in Bowles, clearly distinguishes the two cases.

¶19In Bowles the defendant had been convicted by a jury of first degree murder, and both he and another testified that one Raymond Smith had told them that he, Smith, had killed the murdered soldier. The District Court refused to permit Bowles to call Smith as a witness after it had ascertained, outside the jury’s presence, that Smith would invoke his Fifth Amendment privilege. The district judge ruled that neither side should mention Smith’s decision to invoke his privilege against self-incrimination. The Court of Appeals found no error; however, it carefully noted that had either party requested a neutralizing instruction to the effect that Smith was unavailable as a witness and that the jury could draw no inference whatsoever from the fact that he did not testify, a refusal of such a requested instruction would have constituted error. Bowles, supra at 542. Both Judges Ba-zelon and Wright, in their separate dissents, viewed the failure to give this neutralizing instruction, requested or not, as reversible error. Bowles, supra, at 546-547. Here, no such neutralizing instruction was given, and I believe it unthinkable that the jury did not improperly infer, in the light of the quoted representation by the attorney for Beye’s codefendant, the codefendant’s having been excused as a defendant, and his failure to be called as a witness in Beye’s behalf, that Beye was indeed guilty. The trial judge gave the jury no instruction relating to Smith’s failure to be called as a witness and gave only the usual, general instruction to the effect that statements of counsel are not evidence. To negate any possible inference harmful to Beye, the court should have either permitted Beye to produce Smith as a witness or given such a neutralizing instruction as that suggested by the District of Columbia Circuit in Bowles.

¶20Now turning my attention to the significant Sixth Amendment problem, I add a few thoughts of my own as to why I am so very firmly convinced of the soundness of Chief Judge Bazelon’s dissenting opinion in Bowles.

¶21When Beye proposed to call Smith as a witness, Smith advised the court that he would assert his privilege against self-incrimination if asked about any of the facts of the offense. After a hearing out of the presence of the jury, the court ruled that Beye could not call Smith to the stand, even to have him sworn as a witness. Beye concedes that if Smith had been called as a witness he could have properly refused to answer all relevant questions. However, he challenges the trial judge’s refusal to require Smith to take the stand and invoke the privilege in the presence of the jury, arguing that this action deprived him of his Sixth Amendment guarantee to compulsory process for obtaining witnesses.

¶22The Supreme Court defined the constitutional guarantee on which Beye relies in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Under Washington the Sixth Amend*1041ment guarantee of compulsory process means, at least, that a defendant may not arbitrarily be denied the right to call a competent witness whose “testimony would have been relevant and material to the defense.” 2Id. at 23, 87 S.Ct. at 1925. Thus, there are two questions: (1) whether the trial court’s refusal to allow Beye to call Smith was an arbitrary denial and (2) whether Smith, who was physically and mentally capable of testifying to events that he had personally observed, could have presented testimony that would have been relevant and material to the defense.

¶23The trial court ruled, as we know, that Smith, in the exercise of his privilege against self-incrimination, could refuse to take the stand and be sworn. I hold that this was error. While it is universally held that the defendant in a criminal prosecution may exercise the privilege by refusing to take the stand at his own trial,3 this rule should not be applicable to Smith since he had ceased to hold the status of defendant in the trial. Our court, recognizing the distinction in another context,4 has written that “[u]nder the historical development of the privilege against self incrimination, it is only in direct defense of a crime that a defendant does not have to be sworn (or affirm) and take the stand.” Wollan v. United States, 244 F.2d 212, 214 (9th Cir.), rev’d on other grounds sub nom. Simpson v. United States, 355 U.S. 7, 78 S.Ct. 14, 2 L.Ed.2d 22 (1957). The exception allowing a defendant on trial to refuse to take the stand derives from the concern that he would confront a dilemma if he were called by the prosecution and declined to answer questions on Fifth Amendment grounds. Since the jury might likely infer guilt from the mere assertion of the privilege, the defendant would be compelled to choose between waiving his privilege and remaining silent at the risk of a damaging inference being drawn against him. United States v. Scully, 225 F.2d 113 (2d Cir.), cert. denied, 350 U.S. 897, 100 L.Ed. 788, 76 S.Ct. 156 (1955). To impose such a choice impermissibly depreciates the value of the constitutional privilege. See Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229 (1965).

¶24No such dilemma would have confronted Smith had he taken the stand in this case, since the jury was not sitting to determine his guilt or innocence. Smith’s rights would have been adequately protected had he taken the stand in the presence of the jury and refused to answer those questions that he believed would have tended to incriminate him. The fact of such refusal could not have been proved by the prosecution in any subsequent trial concerned with the determination of the guilt of Smith himself unless, perhaps, as impeachment in the event of Smith’s testifying in his own behalf. See People v. Snyder, 50 Cal.2d 190, 324 P.2d 1 (1958). Since the trial judge erroneously concluded that Smith’s privilege entitled him to refuse to take the stand, the question whether Beye was thereby prejudicially *1042deprived of his right to compulsory-process depends upon whether Smith's testimony, or silence, might have been relevant and material to Beye’s defense.

¶25It appears that, except for one period, of several hours, Smith was Beye’s constant companion on the Mexican trip that immediately preceded their arrest. Therefore, it is highly probable that Smith had knowledge of facts which were relevant and material to Beye’s defense and that his testimony, if given, could have corroborated Beye’s alibi.5 However, the Government argues that since Smith was unwilling to testify and probably would have been instructed by his attorney to refuse to respond to all relevant questions,6 Smith’s “testimony” could not have been relevant and material to the defense. I reject such an interpretation of Washington for two reasons: (1) the possibility that Smith might, once sworn as a witness, decide to change his mind and testify warrants the conclusion that his “testimony would have been relevant and material to the defense,” and (2) even had he not testified, his invocation of the privilege, in and of itself, would have been “testimony relevant and material” to Beye’s defense. I discuss these points separately.

¶26I interpret the key phrase from the Washington opinion as requiring only that the witness be knowledgeable as to facts that would, if elicited at trial, be relevant and material to the defense. When such a proposed witness declares, in advance, that he intends to invoke his privilege, the defendant’s right to compulsory process should include his right to test the firmness of the witness’ intent by placing him on the stand in the presence of the jury and causing him to be sworn or to affirm. This procedure insures that the witness understands the significance of his refusal to testify. By giving him the opportunity to reflect on his initial, informally announced intention, the procedure may decrease the possibility that he might seek to rely on the privilege for any improper reason, such, for example, as the fear that he would, or might, incriminate someone else. It eliminates the possibility that he might rely on the privilege simply to avoid being present, and it is the only practicable way of determining whether he will actually persevere in his refusal to testify.

¶27My conclusion would, however, remain the same even if it were crystal clear, as an established fact, that Smith would indeed have refused to testify. The refusal, itself, would have been “testimony relevant and material to the defense.” The Government suggests that the opposite conclusion is correct, contending that Smith’s refusal to answer questions concerning the crime would not “in any manner” suggest that he acted alone in the commission of the crime. It argues that Smith’s incentive to claim the privilege would have been the same “whether he acted alone, with the accused on trial, or with another different person.” Hence, the Government maintains, to allow the jury possibly to infer Beye’s innocence from Smith’s reliance on the privilege would be to sanction the “hoodwinking” of the jury. This is not true. The Government emphasizes three logical inferences that might have been drawn from Smith’s refusal to testify. *1043In addition to these three, it might have also been inferred that Beye acted alone in committing the crimes and that Smith was reluctant to testify because it might have been incriminating for him to admit that he had accompanied Beye. Two of the four suggested inferences are consistent with Beye’s innocence and the other two, with his guilt. Beye should not have been deprived of the two which could have operated to his advantage.

¶28Here, I must reemphasize the important consideration which I have previously discussed. This is the announcement of Smith’s attorney to the jury, during his opening statement, that Smith would take the stand and deny knowledge of the contraband. There was thus the danger that the jury assumed, in the light of this announcement and Smith’s having been excused as a defendant, that Smith was the innocent party and Beye, the guilty. This possibility could not have been wholly eliminated, even though the trial judge very carefully admonished the jury to disregard the fact of Smith’s removal. I believe that the defendant was entitled to call Smith to the stand for the purpose of attempting to demonstrate that Smith committed the crimes alone or to enable the jury to apply whatever reasonable inference it may have drawn from Smith’s refusal to testify.

¶29I cannot know, of course, the weight, if any, which the jury might have attached to Smith’s appearance as a witness and his refusal, had it occurred, to testify. But it is also clear that we cannot say with assurance that if Smith had invoked the privilege in the presence of the jury, it would not have operated to Beye’s advantage. In short, the inference that the offenses had been committed by Smith alone could have been logically drawn from his refusal to testify. Such an inference would have been relevant and material to Beye’s defense.7 Accordingly, Beye was deprived of his Sixth Amendment right to compulsory process.8

¶30I would reverse.

¶31See note 8 on page 1044.