United States v. Flemming Anderson, United States of America v. William G. Hale

public by the records not be modified

provisions (H.R.Rep.No. 1160.” S. STATES of America UNITED Cong., 89th 2d Sess. U.S.Code Cong. 1966, p. 2427.) & Admin.News Flemming ANDERSON,Appellant. Commenting added.) (Emphasis Attorney Report House General’s of America UNITED STATES Information memorandum on the Public the Administrative Procedure Section of HALE, Appellant. William G. (June 1967) stated: Act Nos. 72-1848 72-2066. “nearly The reference to 100 stat- Appeals, United States Court of apparently was inserted utes” District of Columbia Circuit. upon report in reliance a sur- House Argued April 17, vey by the Administrative conducted May 21, Decided Conference States Rehearing Aug. 1,1974. Banc Denied En survey concluded that 1962. This somewhat less than 100 there were statutory

provisions specifically which disclosure, prohibit exempt dis- law, except

closure provide as authorized only as autho-

for disclosure protect by law, or otherwise

rized

from disclosure. The reference there- preserve intention to

fore indicates an protection under is afforded

whatever statutes, their terms.

other whatever added.)

(Emphasis Section 1104 is tailored needs problems of the Federal Aviation problems

Administration —needs are well illustrated this case. specific

I cannot believe that this statute repealed by gener-

was overridden or

al terms the Freedom of Information specific

Act. The earlier and statute prevail gener-

should over the later more particular,

al enactment. the later

act should not be read to delete “public every interest” standard from appears—

disclosure statute which it

including section 1104. Appeals

The Circuit Court of for the exemption (3)

5th Circuit has held that

authorizes Federal Aviation Admin pursu

istration to withhold information

ant to section 49 U.S.C. § Dept. Transportation,

Evans v. denied, 1971),

F.2d 821 cert. 30 L.Ed.2d agree. I respectfully dissent. Briskman, Pittsburgh, Pa.,*

Louis J. Washing Cohn, with whom Sherman L. ton, C., Larry Ritchie, Washington, D. J. C., Houston, Gover, Tex.,*

D. and Alan S. (all appointed by court) on were brief, appellants. Larimer, Atty., David G. Asst. U. S. Titus, Jr., with whom Harold H. U. S. Atty., Terry John A. Du- John R. gan, Attys., Asst. U. S. were on the brief, appellee. BAZELON, Judge, Before Chief Judge

WISDOM**, Circuit United States Circuit, WILKEY, for the Fifth Judge. BAZELON, Judge: Chief joint appellants were a by. robbery. Ander convicted eight year sen a two to son received ; imposition sentence tence suspended, placed proba he on and was years. rever for three Hale seeks tion ground on the sal impermissibly sought reason to elicit his asserting alibi to the for not Anderson seeks reversal when arrested. ground prejudiced he on the that was argu closing several comments Hale’s conviction, and ment. We reverse Hale’s affirm Anderson’s.1 largely government’s case rested testimony Arrington, Lonnie Arrington complaining tes- witness. * appearances acquittal Entered counsel was erroneous since the student “inherently pursuant complaining Rule 20 Rules of witness was General evidence to this court. incredible.” findWe sufficient question of credi- sustain the verdicts. The ** Sitting by designation pursuant to Title bility jury. See, g., e. Bush was for the 291(a). 28 U.S.C. § U.S.App.D.C. appellants argue court’s Both the trial F.2d 602 grant judgment refusal motion rating Arrington ap on he was he was tified that June pair proached way purchase Ar of shoes three men who asked if Hale, rington money, stopped with and that he re to chat neighborhood, plied he “didn’t know.” Hale claimed whom he had seen Hale then that he then went to the Narcotics name. but did not know Upon shoe Treatment Center where remained him into the store. followed during alleged robbery. leaving, Arrington and time of the was accosted by group immedi- He left the of men. He Center with a friend who robbed a robbery police. subsequently purchased ately reported the to the narcotics. Shortly purchase, been after men claimed that had the the two $65 At first he checking later, approached by police, stolen, were after with his and Hale but drug changed figure wife, fled because he feared another he $96. waiting police for to escort conviction.4 While neighborhood through in search him estranged Hale also that testified his Arrington attackers, two noticed of his wife had received her welfare check go guy shouted, men, “there and [sic] day question, in and that she had po- robbery.” in the When that was given him about that he could so $150 they men, ran toward two fled. lice purchase money her, some orders Arrington capture, Upon identified their past.5 he had done in the His wife cor one of the robbers. Hale as Several testimony. roborated later, Arrington picked An- out months presented Anderson no evidence. group photos derson from a shown police, and then identified him II —HALE’S CLAIM lineup. him aat Appellant argues Hale the trial arresting officer testified court committed in reversible error fail- pocket in in Hale had his $35 $123 ing grant motion for a mistrial when He also his wallet arrested. prosecutor, after on cross-examina- stated, Arrington be claimed that had tion, elicited from Hale an admission arrested, “that he fore Hale had been explained police that he had not to the a man believed one was [the robbers] presence person found on his $158 Billy testi the name of Hale.” This the time of arrest. We find that: Arrington’s mony directly contradicted (A) prosecutor’s question con- was testimony he earlier to the effect stitutionally impermissible; (B) police name], did not “tell [Hale’s court’s failure to declare a mistrial was if it or because didn’t know was [him] prejudicial error. not.” The record indicates that after arrest Hale took the stand in his de- own appellant police taken to the station fense and testified that he had encoun- rights and informed of his under Miran- Arrington day question. tered Arizona, da v. 384 U.S. asserted, however, sepa- He after including 16 L.Ed.2d 694 Arrington also stated that there was wit- 3. An administrator from the Center testified robbery, ness to the who was never identi- that his records indicated that Hale had vis- fied, rob- who had told him that one of the day question, ited the Center on the “Billy Bobby bers was named Hale Hale.” did not reveal the time of the vis- Although initially testified that he did not it. identify police, Hale name to his sub- previous 4. Hale claimed that his conviction sequent testimony is confused. Counsel being presence resulted from arrested you neglected Hale asked: “So mention possession of a friend who of narcot- police to the that one of the individuals had ics. given you robbers, name of one right?” answered, Arrington And “I liquor The owner of a local store testified told Hale, them.” reveal pur- record does not that he knew had and that Hale Arrington police. what money is that it told the chased orders him on several occasions. “right Miranda, holding to remain silent.” He was after that a de- possession then searched and found fendant had a to be advised that interrogator police thereupon po- A he could remain silent in the face of $158. get interrogation, asked did mon lice “[w]here ey response.7 ?” no Hale made went on to note: today, impeach

At an effort In accord with our decision carrying penalize impermissible that he an indi large exercising money Fifth sum because wife vidual privilege un had received her welfare check Amendment interrogation. purchase him to asked some or- der custodial prosecution may not, therefore, her, ders for led Hale to that he stood admit that he had not ex- use at offered that fact planation at his at the mute or claimed time at 468 n. arrest: accusation. face of (emphasis supplied).9 37 any way Did in- Prosecutor: police] dicate the where the [to dictum, Relying several came from? including own,11 Circuits,10 our No, sort of the Hale: I didn’t. held that cross-examination improper.12 question in was this case Why Prosecutor: not? necessary Recently, however, Hale: has didn’t feel it one was Circuit implied,14 held,13 the that time.8 another has “[Tjhere remaining Tr. at 259. is no silent: before privilege is contention that room for the 7. Tr. at 262. ques- some individual answers waived 8. Tr. at 259. gives on his own information tions or prior some invoking right silent to remain California, 9. See also v. Schmerber 384 U.S. supra, at 475- .” Miranda 757, 765-766, 86 L.Ed.2d S.Ct. 16 908 fact, reveal record does n. 9 any questions appellant or answered whether See, g., States, any e. Fowle v. United 410 F. statements. made (9th 1969) ; 2d 48 Cir. v. United States Ramirez, F.2d 950 441 v. States United Brinson, 1969) ; 411 F.2d 1057 Cir. 1971). (5th Cir. Semensohn, United States v. 421 F.2d 1206 (2nd Jer- v. New 1970). Fagundes ex rel. Burt 14. In United States Cir. See also v. Unit 1973), (3rd sey, a defend- States, Cir. (1st 1965). 234 475 F.2d ed 340 F.2d 673 Cir. than the other Sharp for a crime States, ant was arrested But see v. United 410 F.2d appeal before 1969). majority Sharp homicide at issue 969 explained that inexplicably portion trial he At Third Circuit. omits reference to the held The court despite accidental. was homicide Miranda at issue forceful reliance impeached properly Judge was that defendant on it Chief Brown dissent. 410 police because station his silence F.2d at 972. committing accused of had not been homicide, States, U.S.App.D. 11. Gillison v. United 130 have notified should and therefore C. 399 F.2d 586 police accidental an if he knew about concurring dissenting colleague argues judges 12. Our issued Two homicide. opinion seemingly inapplicable ground Miranda Harris dictum is to the facts record, however, clearly by prior impeachment of this case. silence allows police Appellant indicates otherwise. was under station. panel interrogation, subsequent the sort of “accusation” a different In a improper to which Miranda it was referred. See 384 U.S. held that the same Circuit And, by pointing impeach 444 & 468 n. 37. when he was asked out a defendant rights, you get money?” did Miranda “[w]here he stood of his he invoked another attorney. right namely, "mute.” This fact then “use[dY’ was Yeager, F.2d him 476 “at trial." As the eases cited ex rel. Macon States supra demonstrate, (3rd these note 10 face of In the the Miranda dic- applies precisely tum in the Third to these facts. Nor a district court two decisions matter, recently despite suggestion by that a defendant held would has Circuit only prior dissent, can, questions impeached by silence that Hale answered some be York, 91 S. wald United v. New U.S. Harris (1957). There, 1 L.Ed.2d 931 undercuts Ct. 28 L.Ed.2d above, petitioner portion quoted Miranda refused to answer several regarding questions put grand permits himto before the cross-examination ground or “on the offer an alibi the answers refusal to defendant’s interrogators. tend to would incriminate him and that explanation to his the Fifth Amendment therefore entitled held that In Harris the Court him not to answer.”17 At trial these impeached “prior defendant could questions way same were answered “in a utterances” made at inconsistent innocence,” consistent with and “the Gov they were time of his arrest even when ernment peachment purposes] im then allowed [for ade made before defendant was bring ... rights. quately apprised of his petitioner out cross-examination Harris ra Fifth extended the Circuit pleaded privilege before approve “the tionale grand jury very questions.” as to these prosecution to defendant’s] show [a The Court found that the exercise remaining act silent inconsistent “wholly in consistent with Circuit, on the The Tenth nocence,” concluded, and therefore with disagreed hand, Fifth with the other dissent, out there “no incon observing that: sistency” support cross- silence at time of arrest is not an examination.19 The Court relied on contradictory state inconsistent (a) petitioner repeatedly three factors: ment. the time of arrest is Silence at maintained his innocence before simply the a exercise of constitutional grand jury; grand (6) jury inquiry, a right enjoy persons that all must unlike a the nature of a se qualification.16 without proceeding, cret and men “[i]nnocent agreeWe with the Tenth Circuit. likely plead privilege are more premise underlying testify Harris proceedings, they secret where voluntarily gives if a defendant state- without advice of and without counsel police ments to the that contradict his opportunity cross-examination, for than 20 open ”; those statements are ad- proceedings court . . . obviously missible (c) because are rele- important,” peti “most at the time When, assessing credibility. vant for grand appeared tioner before however, a defendant is informed that “already potential he was considered a right silent, he has a to remain and then quite defendant” therefore “it nothing right, exercises that in- there is natural being for him to fear that he was subsequently if he consistent culpatory testimony offers ex- very pur questions asked for the Virtually at trial. pose providing of 21 same issue was considered Grune- himself.” police interrogation concern Rodriguez, does not n. 3. See also Deats v. at 1068 is subse- (10th 1973). the crime for which the defendant 477 F.2d 1023 Cir. quently indicted. The district court then 17. In instant case Hale 353 U.S. at 416. of the sort concluded that cross-examination ground answer on the did not decline to improper at issue this case was notwith- him, might tend incriminate his answers Holland, standing Harris. v. United States simply in the face of remained silent (E.D.Pa.1973). F.Supp. 360 908 police interrogator’s instruction 950, Ramirez, F.2d 441 right United States remain silent.” “a supplied). 1971) (emphasis 954 18. 353 U.S. at 417. 1066, Patterson, F.2d Johnson v. 421, also 422. See Stewart 353 U.S. at respect to Ramirez With n. U.S. prem- supra, said, “[t]he the Tenth Circuit 941, L.Ed.2d 84 at the time of ise of Ramirez is that silence the testi- arrest is an act inconsistent with 20. 353 U.S. at 422-423. mony given . . . trial. We validity premise.” deny 21. 353 F.2d of the greater spoke, being rather valid without first reasons have even albeit These (a) rights. ity present advised In the case: while his instant case, hand, Hale on the other disclose whether "the accused ex record does plicitly upon innocence at the time availed himself insisted arrest, clearly remain silent. reveals that proscribed by steadfastly prose innocence comment maintained court (6) police throughout proceedings; cutor on the fact that a defendant did ground interrogation may more be viewed as at trial on the grand jury proceeding privi such comment on than a “cuts down “secret” lege by making costly.” on the record and which is conducted its assertion grand presence California, Griffin v. of the jurors. pre were Miranda’s rules aimed 14 L.Ed.2d 106 by cisely dangers presented Court, relying upon the secret (c) interrogation;22 analysis, police nature of then ruled in Miranda that it is “potential “impermissible clearly penalize Hale more de individual exercising for he had fendant” then Grünewald since Fifth Amendment privilege the victim when he been identified as one is under cus interrogation.”25 robbers, todial and had been arrested The rationale suspicion for of the of this rule instant was articulated Justice Black in his Grünewald concurrence: fense. sum, application principles special [There no are] circumstances compels in Grünewald a find enunciated justify that would use a constitu- law,23 ing that, as a matter there was tional to discredit or convict nothing between Hale’s si inconsistent person who it. The value of asserts interrogation and lence in alibi largely privileges constitutional de- premise Thus, required the basic trial. stroyed persons penalized can be triggering the Harris rationale is relying peculiarly on them. It seems absent.24 incongruous indefensible appel- Even if it could be said that only act under courts which exist and silence at station was lant’s inferences of Constitution to draw testimony with his at trial inconsistent honesty of a from invocation lack inapplica- nevertheless be Harris would worthy of enshrine- deemed present ble In circumstances. U.S. ment in 353 at the Constitution. did not Harris the accused exerciee right silent, 425-426. to remain constitutional (10th Patterson, (“The supra, F.2d 1066 Cir. son v. 475 22. 384 U.S. at 445 See Miranda 1973). transpires depicting difficulty at in what interrogations from the fact that stems 25. See Gillison v. 384 at 468 n. 37. U.S. largely country place taken this 215, U.S.App.D.C. States, 399 United 130 incommunicado.”). 586, (“The (1968) distance be F.2d 587 acknowledged Grünewald that The prosecutor’s com tween and the [Grif/m] prior question is statement “the whether infinitesimal.”) ; here is ments ... go sufficiently to be allowed inconsistent 48, States, F.2d 51-55 Fowle v. 410 United credibility question 'to the Patterson, (9th 1969) ; 475 v. Cir. Johnson usually court. the discretion the trial within 1973). 1066, (10th See F.2d Cir. 1067-1068 evidentiary grave has matter But where such 511, Spevak generally Klein, 385 87 U.S. here, overtones, it we does constitutional (1967) ; 625, United 574 S.Ct. 17 L.Ed.2d exercising super- justified this feel Court’s Yeager, 476 F.2d ex rel. Macon States ” visory . at 423- . . 353 control U.S. (3rd (“Griffin 1973) holds 616 Cir. context, broadly that, criminal least particu question States, relevant whether v. United 410 F.2d See Fowle by (“Surely 1969) [peti state’s (9th lar been harmed . . . 51 Cir. defendant engaged contradictory in constitu use of the he fact that more was no tioner’s] silence (em .”) tionally protected . . testimony conduct than was silence later phasis original). Grünewald].”) ; petitioner m John- [the upon Nothing Harris this funda comment The Court undercuts assertion. principle ruled if to allow since that even it was error constitutional mental petitioner privilege, of the to invoke his was it Harris did not "involve assertion improper permit prosecu right.26 nonetheless constitutional torial comment because the defendant prosecutor’s that Our conclusion thereby “deprive . . . of an [d] improper is buttressed intelligent claiming or choice between grossly unfair it be the fact would waiving privilege.” “a he had an accused advise silent,” right use his and then to remain B. against him at trial without silence government argues The having very him informed least also error was the trial harmless since court to exercise his if he chooses interrupted prosecutor and informed may subsequently impeached be required that Hale “was noted al The that. Sixth fact. indicate where the came from years ago fifty if an accused’s most disregard may it, You ladies against him is to be used silence gentlemen.”29 reversal, To avoid anything, told, you say ‘If “should be however, being error, of constitu against you; do will be used magnitude,30 tional must be harmless be against say anything, that will used be yond ” a reasonable doubt.31 you.’ Court embraced principles in Johnson v. United these government’s States, 87 L. S.Ct. (I) the testi Hale rests three limbs: (1943), a defendant who Ed. 704 where (2) mony witness; complaining of the privi testified was allowed to assert flight appellant’s arrest; at the time of lege against as to some self-incrimination (3) appellant’s possession of $158. questions having told that been without (1) complaining permitted would be contradictory. witness confused and heavily on Raffel v. 26. The dissent relies (cid:127) good why reasons a defendant would refuse States, United speak proceeding in a held the Court L.Ed. 1054 where record, off the and at a time he is at his second testifies defendant who counsel, without the advice of then de- testify first but who did not cide to trial. Grünewald su- See trial, may impeached silence pra. deny testifying purpose is to when his McCarthy v. United 25 F.2d 298 by a wit- him some statements attributed to also See Johnson v. Pat testimony at same ness has offered the who terson, 1973) ; 475 F.2d 1066 supra, the Court both trials. explicitly Grünewald Brinson, States v. F.2d 1057 353 declined to reaffirm Raffel. 1969) ; States, Fowle v. United concurring U.S. at 421. Four Justices .in 410 F.2d 48 should Grünewald indicated that Raffel concur- overruled. The rationale of 28. 318 at 198. The Court noted : provided framework rence Elementary requires fairness that an ac- subsequent Ac- Court’s decision Griffin. cused not If be misled on th score. [is] cordingly, wheth- there is a serious by advised claim court that his vitality. any remaining See er Note, has privilege though granted Raffel would be used 363, Silence, 367 Use of 33 Md.L.Rev. against him, might he never claim it. well (1973). n. 21 also v. United See Stewart Id. at 197. States, 941, L.Ed.2d 366 U.S. 81 S.Ct. compelling equally This rationale is (1961) (cannot demeanor attack witness’s police interrogation face of and advice. testify by introducing he failed to fact 29. Tr. at trials). at former any event, clearly distinguisha- In Raffel States, 30. See Gillison U.S. present ble circumstances because from the App.D.C. 215, 399 F.2d 588 n. 8 hy petitioner impeached there the testify whereas refusal to at a former appellant Chapman California, to the instant declined 386 U.S. S. speak interrogators. There are with Ct. L.Ed.2d 705 having fol- characterized as times—his first two The trial court convictions by been reversed this lows: court34—declined trials, the first two respect to view . . . with [O]ne appar took the stand at the third “in an might complainant has be that he this ent effort to bolster contention of [his] point that been contradicted such insanity sole issue in [the the case].” per Another he be believed. wouldn’t cross-examination, On after the defend fectly that he view ... fair ant admitted that he had been “tried on entirely who is an witness sincere occasions,” two other ability, limited [and] intellectual asked: “This is the first time part and misled who was confused gone stand, isn’t it ?”36 The .32 answers. . some question improper Court found the and respect flight appellant’s (2) With concluded that error was not harm upon apprehension, explained he that his Speaking potential cautionary less. of a companion purchased heroin, and, jury, instruction to the given the one conviction, since had a narcotics case, in this the Court said: he was afraid. He claimed that his danger [T]he of the situation would former conviction arose in the narcotics cautionary have been increased circumstances; is, same instruction in that such an instruction drugs. possession was not himself in again brought jury’s would have (3) In the face of the weak petitioner’s prior attention to failure complaining witness, the lim testify. atU.S. probity flight,33 ited of the Thus, present case, in the large money evidence of the sum of light when considered in of the evidence appellant played part found on a central against appellant, cannot be deemed government’s Appellant at case. beyond harmless a reasonable doubt.37 ways: first, tacked by showing evidence in two the sum of Ill —ANDERSON’S CLAIM greater found on him was much than the Appellant Anderson contends allegedly stolen; second, by amount offering that his constitutional to remain alibi, corroborated abridged by closing silent was ar wife, explaining possession gument jury: large improper In sum. this context the they people All question by prosecutor leading can do—all do can you exactly they come in and tell what Hale’s admission that he did not offer day. did that . . . That alibi to the is all was calculated to required They are point break do. are not a critical in the defense required even apparently that, to do since it intended ladies to indi gentlemen. cate that the alibi had been fabricated sometime between arrest and trial. And, course, Mr. Hale took the just stand and did that.38 Stewart v. United (1961), pe- 6 L.Ed.2d 84 Anderson maintains this statement titioner, urged negative who had been convicted three to draw a infer- 32 Tr. at 187. 36. 366 U.S. at 4. generally Bailey States, See, 33. g., See v. 37. United 135 e. United ex rel. v. States Macon U.S.App.D.C. 95, Yeager, (3rd 416 F.2d 1114 n.& 476 F.2d 616-617 Cir. (1969) ; States, 1973) ; States, 29 Miller v. United 116 U. Gillison United 130 U.S. v. S.App.D.C. 45, (1963). App.D.C. 215, 320 F.2d 767 399 F.2d 588 Compare Cox, Leake v. 432 F.2d 982 U.S.App.D.C. States,

34. Stewart v. United 1970) (“overwhelming evidence (1954) ; 214 F.2d 879 v. Stewart Unit guilt”) ; Wick, 416 F.2d 61 United States U.S.App.D.C. States, ed 247 F.2d 1969) (“overwhelming defendant”). 35. 366 at 3. Tr. at 294. testify. ing Hale, ence from failure Anderson’s who had elected to closing argu defense, following exchange

We have studied ment, Hale’s own statement, by and find that occurred: itself,39 did not “invite an inference of Q. they you? Did search guilt.” United States [Anderson’s] Yes, they A. did. Hines, U.S.App.D.C. 249, F.2d Q. money Did find some (1971) J„ (Bazelon, 1335-1336 C. you? dissenting).40 Indeed, shortly after Yes, they A. did. completion closing argument, of Hale’s Q. jury you any way the court instructed the Did it indicate guilt money not draw where “must inference came from? against the defendant did not because he No, A. I didn’t. testify.”41 circumstances, In these we Q. Why not? warranting find no error An reversal of A. I didn’t feel that it was neces- conviction. derson’s sary at the time. ordered. So (cid:127) Q. your You were advised of Judge WILKEY, (dissenting): rights, were not? The convictions of An- both defendant A. Yes.1 derson and defendant Hale should be af- Directly Judge thereafter District Gesell Judge firmed. I Baz- dissent from Chief sponte gave sua cautionary instruc- opinion zelon’s insofar it reverses tion: my judgment Hale’s conviction. In required Court: He is not to indi- error, majority there was no and if the cate where the came from. justice have ferreted out a flaw responsibility part There no on his Court, administered in the District regard to that. under was harmless all reasonable you, your Hale’s Counsel: Thank standards. Honor. Anderson’s I I. THE Counsel: ask that the ASSERTED PERNICIOUS question and answer be PASSAGE stricken. shaky ground on ma- Court: indicated to the jority overturns Hale’s conviction con- clearly inappropriate question. alleged infringement cerns of defend- may disregard it, gen You ladies and ques- to remain ant’s silent tlemen. The defendant is not re by police tioned after arrest. At quired give any explanation what when the was cross-examin- soever at the time of arrest.2 argues this statement was Anderson Compare Hines, United States v. 147 U.S. particularly prejudicial parts because other App.D.C. 249, 455 F.2d 1317 with closing argument attempted of Hale’s (Bazelon, dissenting). J., id. at 1335 C. place exonerat the blame on Anderson while Hines, In counsel ing for one co-defendant Hale. Anderson several statements cites argued “you I, innocent, Arrington we were we argument indicating in Hale’s try would take the stand to to exonerate grand jury had that Hale testified before the ourselves.” inculpatory acts, F.2d at 1334. committed certain Anderson, whereas trial he testified that 41. Tr. at 308. however, record, did these does acts. placed support Anderson’s claim. When (emphasis supplied). 1. Record at 259 context, it is clear that the statements my closing argument solely the trial Record at 259-60. view were aimed judge telling Arrington convincing acted in an excess of caution jury, may disregard wholly continually A more “You it.” incredible since may been, changed story. Thus, “You correct caution would have was not Anderson only as it consider answer harmed. DeLuna v. See bear, may your bear, judgment 1962) ; it if in does F.2d 140 United States credibility.” Barney, on Mr. Hale’s 371 F.2d 7 and in the text at note in note as OF THE WIT- II. CREDIBILITY testimony Hale what defendant as to PLACED NESS-DEFENDANT questioning, police is said in to answer IN ISSUE not evidence at Hale never testified all. of the defend This cross-examination this, police to no witness to testified not violate stand did witness ant this, any jury such never heard right Fifth Amendment defendant’s “dialogue” The from a words. is lifted against compelled self-incrimination.3 at which Assistant bench conference ex it to Nor did violate the silence give Attorney purported to his be- pressed Arizona, Miranda v. police lief to occurred as what impermissible penalize indi it to is station. would have The never exercising Fifth vidual permitted any to been receive privilege is un when he Amendment hearsay prosecutor, who of from the interrogation. police der custodial colleagues My there. course was never therefore, prosecution may not, The heavily relying thus reverse case this fact he use at stood “testimony” upon hearsay nev- unsworn privilege in the mute or claimed his jury. er heard face accusation.4 case does The record Hale’s majority rely quotation this support majority the action which, Miranda, part of Miranda reversing conviction, if the even Hale’s initially, a footnot- it be noted is should Miranda footnote dictum be taken as Miranda the dictum. defendant ed good applicable law to before timely proper warn- talked without a or trial. given admittedly ing, here. which was position in con- As Hale’s apparently the defendant In Miranda Miranda, Hale trast took the stand. stand; Hale took never took the here privilege did, he When he waived his complete story. the stand tell self-incrimination; against placed his applies, Miranda footnote dictum credibility just any as issue other wit- all, applies if it to a situation question does. There be no ness can mute, or “stood defendant credibility of the about this. For if the accu claimed face way subject defendant in is to a some testimony here sation.” is no There challenge oth- more limited than that of any privilege; that Hale ever claimed witnesses, logically er then testimony by is no Hale or there either be so instructed. A defendant should any witness officers testimony should not to offer be able mute; any standing Hale nor is there challenge subject than less testimony any police accusation. any witness, that of jury being other without the point Regretfully, out that I must instructed is so dialogue colleagues quotes my cite can evaluate the ac- —in — provides say anything. 3. The Fifth that “No He Amendment Prosecutor: wouldn’t any person compelled They . . . shall be it. asked He couldn’t account working him- criminal be a witness him he was or wasn’t case to whether working. self.” He wouldn’t indicate. improp- highly Court: That I have n. er. correct it. I think tried to 1625, 16 L.Ed.2d corrected it. appears Record at This to be 261-62. following only exchange In a the bench the in the record which indicates conference exchange police interrogation of de- the nature of the occurred: first- fendant arrest. It Court: Do after his pur- gave contrary police? testimony, hand nor admissible does statement They him, port complete did the dia- asked “Where account of Prosecutor: you get money?” logue between He account defendant. couldn’t place dialogue conclusion that some took it. inescapable. say? did he Court: What suggests previously cordingly. ex- here The failure to offer an And no one conceivably planation carries less of an must assume done. So we that this be made, ex- inference to the of adverse as witness’ evidence of statements that planations logical made, credibility, relationship made, but the and when not previous credibility of either a different no ex- or relevant to witness give planation explanation testimony to an to offered he chooses exactly first time at trial stand, admissible. jury obliged same. to ac- Unless found on his In reference $150 cept of a defendant under arrest, person Hale told of at the time entirely standards from different jury that he examination on direct any witness, other then this failure to wife in from his had obtained $150 explain be to should made known money purchase orders. He order to jury evaluating to assist the witness- assuredly mute or not stand did thus testimony, defendant’s with the overall put any privilege He into at trial. claim evidence, objective arriving at the truth. jury or to believe considered explanation disbelieve, of where his this issue since it in Harris decided testimony, got as After such the $150. prior inconsistent statements could be technique proper part of usual and However, introduced. the Court did credibility, any testing witness’ consider the issue 1926 Raffel v. logical inquiry wheth- most obvious United States.9 There the Court found any explanation had other er this or permissible require to the defendant given prose- previously. This been who took the stand at his second trial to proceeded do, cutor and such disclose that he had not testified thoroughly permissible. (where first failed to It is clear that under Harris v. New verdict). stated, reach a The Court given contrary York,6 ex if Hale had immunity giving testimo money planation of the source of ny may is one which the defendant police, explanation would be by offering waive himself as wit credibility, impeach as admissible suming ness. When he takes the stand in his explanation behalf, own he does so other Burger voluntary.7 wrote Chief Justice witness, and within the limits for the Court that appropriate may rules he be cross-ex Every privi criminal defendant is amined as to the He facts issue. leged defense, or own may purpose be examined for the to do But that refuse so. impeaching credibility. His fail to include the cannot be construed deny explain ure to or in Having perjury. vol to commit criminating stand, circumstances which he untarily petitioner taken the obligation speak may knowledge, may was under an truthfully be basis accurately, inference, adverse and the prosecution uti here did no more than may be so instructed. His waiver is truth-testing de lize the traditional having partial; once cast aside adversary process.8 vices of the may immunity, the cloak of not re will, sume it at whenever cross-exami gave bar, In the case at Hale may nation be inconvenient presence no for the of a reason large person. embarrassing.10 sum of found on his (citations omitted). L.Ed.2d 1 at 225 S.Ct. U.S. 9. 271 U.S. L.Ed. merely requires the defendant’s Harris voluntary; (citations (em- omitted) Miranda warn- Id. at statement 496-497 phasis ings given. supplied). need not be

1Q49 that, ty privilege The The concluded itself. 1957 Grü- Court newald a time the decision came at safeguards self-incrimi The (or abuse) privilege use of un- the of for the benefit those nation are attack, der and there an severe existed witnesses who do wish to become average the undoubted likelihood and not those in their own behalf juror equate “taking the would Fifth” to policy in sound do. There a who guilt. log- a of the confession Whatever requiring him accused offers the who any explan- ical relevance of to later this to res as do without self a witness so defendant, ation offered danger the real a ervation, any does other witness.11 outweigh any prejudice of would Supreme Court reconsidered Raf relevance. The same cannot be said case, in a Grunewald United fel Nothing said, Hale’s situation. ei- States,12 el not it held con where Raff answer, ther in about a fear trolling of the later circumstances incrimination. Hale was prosecution the In case. brought Grünewald way asked, any “Did indicate in cross-examination of the out He where that came from?” pleaded the defendant that latter “No, simply, equally answered I didn’t. privilege Amendment before the Fifth necessary at . . . I didn’t feel it was grand questions jury he asked when was the time.” subsequently he those an identical to charge My colleagues In swered at trial. to believe two judge jury, stated that defend trial could draw an and unfair prior privilege prejudicial that, could ant’s assertion of on inference this only credibility reflect authority be used to on a extended footnoted provide goes could not inference as to Miranda, and guilt dictum the entire trial nought or innocence. The Court and the conviction must be necessary felt that to determine especially it was me, set aside. To in view of whether, given particular circum judge’s the trial immediate corrective case, instruction, my stances of the “the cross-examina mind too went restoring balance,14 tion should have been excluded because proper far probative its value the issue perversion [de this result is an incredible credibility negligible judicial was so process. fendant’s] outweighed by possible toas be far its governed by raised issue here impermissible impact jury.”13 el, not Grünewald. issue Raff Exercising supervisory power over its squarely cer focused el was Raff of federal administration criminal re question: tified “Was justice, the concluded that defend Court offering Raffel, quire defendant, ant’s silence was not inconsistent upon the second himself as a witness with later statement on the stand he had not testified to disclose that likelihood and there was serious upon the as a behalf witness his own might equate that the assertion of which, in first trial ?”15 answer guilt. privilege Consequently, with opinion Mr. Justice Harlan’s required a trial for the the Court new held, Grünewald, Court in “[t]his defendant. effect, defend when a criminal Grünewald is distinct from Hale’s priv stand, he waives ant takes ways. in several inference can That no subject to ilege completely becomes or should the assertion drawn from be impeaching credi cross-examination of against Fifth Amendment 16 bility just witness.” like other long self-incrimination has been did exactly Hale what submit this is thought preserve necessary vitali- supra. 14. (emphasis supplied). Seen. Id. at 496. 271 U.S. 12. 353 L.Ed.2d (emphasis supplied). 13. Id. at 420 way act. No man would dialogue police he the objection truthful with the in his here: appeal, trial. On got was raised where them to tell chose not Harris man- Fifth held omission, like Raffel’s money, dates the conclusion testify in his first choice brought out before properly can elected to Once [defendant] plea problem jury. of a There was no of coercion defense assert sought used privilege by to be subject Hale “traditional became truth-testing adversary him, in as Grünewald. the devices of right including process," the concurring Furthermore, four the Jus prior prosecution incon to show interpreted disa and in Grünewald tices remaining silent the sistent act opinion: greed “I do of the Court’s with time his arrest.20 my Court, not, rest the conclusion of like special of this circumstances on the only between the case at The difference resting ais So case.” Grünewald the District and Ramirez is that bar Judge circumstances,” “special and since gave sponte cautionary here sua resisted and the Court Justice Harlan informing jury that de- instructions the four overrule of entreaties obligation po- to tell fendant had no Supreme el,18 Court’s deci it is Raff money. obtained the lice where he had el, Grünewald, sion in not Raff Hale, there harmful If was error governs Hale’s case here. was harmful to Ramirez— there my view, only I am sustained in not except of that Hale had the benefit an by proper analysis consider the what I immediate instruction. curative Miranda, Harris, Grünewald, of and adopted also Third Circuit el, by recent but also decisions Raff approach Ramirez ex in United States other circuits. Jersey.21 Burt rel. of New v. State Although has not There defendant took the stand and permissibility reconsidered the of cross- shooting explained a was acciden prosecution by the examination a de of tal rather On than intentional. cross- concerning silence, fendant his earlier why examination, when asked he had hence is still such cross-examination anyone happened, not told what had by el, clearly cir authorized several Raff explanation. prosecution he had no cuits considered the sought credibility to attack his light of York. The Fifth Harris v. New theory responsible someone Ramirez,19 Circuit, in United States v. injury attempt accidental would to ob proper. found such cross-examination help injured.22 tain for the The Third The defendant in that case testified per Circuit held the cross-examination trial that he had into sell been coerced missible. It referred to Ramirez with ing by heroin threats harm from approval. strangers. cross-examination, On he ad police mitted that he had never told Judge concurring opinion Ro- argument closing fact, Burt, joined by senn which was one urged prosecutor this was panel of the other two members and X, (Black, concurring). 17. Id. at 425 shooting, defendant was arrested breaking entering store, a which offense X, (Black, concurring). 18. Id. at 426 shooting was unconnected with death. (5th Cir.), denied, F.2d cert. Defendant’s failure comment on the “acci- 30 L.Ed.2d urged shooting by dental” was unreliability to show the defendant’s The defend- trial. (emphasis supplied). Id. at 954 by questioned ant had not been (3rd 21. 475 F.2d 234 concerning shooting. 22. Burt involved somewhat odd factual sit- uation, evening that on the same as only by prior majority opinion, inconsistent be tested thus becomes Harris, explicit: statements as mandated even more by prior also inconsistent silence. shooting was accidental If contrary Burt, A silence both be view was taken ma claimed jority case, suspect in a Tenth and after was Johnson fore he was a They testimo believed that Har with his at-trial inconsistent Patterson.26 shooting distinguishable ny ris was from a case con accidental. cerning holds, inconsistency, must a defendant’s time Harris silence at the Such truth-seeking arrest, they thought subject process lat that the perceive no ter of cross-examination. impeachment by between difference contradictory not an inconsistent or statements made in inconsistent statement. Silence the time ar warning of Miranda absence rest is the exercise a consti impeachment by prior silence incon persons tutional that all must testimony jus sistent with trial which enjoy qualification. without would It applying tifies not Harris ration the irregular indeed be and anomalous to present ale in the right case.23 warn accused that he has the Traditionally system adversary any in our silent, says to remain if that probe thing may against him, cross-examination is used to the it be used credibility testimony. however, of direct Without if he does that remain silent cross-examination, perjury likely may is be used too him.27 go undiscovered. a defendant When However, agree Judge I with Breiten stand, testimony may takes the his be having stein’s dissent that once waived light past examined in the of his volun privilege against compelled his self-in tary Likewise, past si statements. trial, testifying crimination the may introduced, may lence be when it be may defendant not reassert his story inconsistent with the tells questioning when the becomes tough.28 particularly, the stand.24 And note what The waiver is not Once partial.29 dealing

we are with in Hale’s case are opened up subject defendant has area entirely acts, voluntary either of state examination, principle on direct ment or non-statement. There is no testify truthfully pre should witness suggestion of a Miranda situation. vails; cross-examination of the witness- Griffin v. California25 established defendant to determine if he made simi if the defendant does not take previously logically lar statements is trial, stand necessary neither evaluating nor truth or judge may credibility. comment on his (then silence. As Chief Justice Cir However, Burger once the Judge) defendant does take cuit remarked Tate v. stand, credibility may States, believe his theory “At best the 23. 475 F.2d at Johnson, 237-238. 124. It should be in- noted that judge jury telling stead of Judge wrote, 24. As Rosenn disregard and answer concern- If inconsistencies cannot be demonstrated ing previous silence, the defendant’s there jury, truth-seeking process to a is cautionary prose- was no instruction and the straitjacketed. defendant, course, closing argu- cutor was allowed to refer explain away seeming is free to inconsist- compared ment to defendant’s silence to his system requires encies. The adversarial explanation at trial. jury, fact, as triers of make the (citations omitted). final determination 27. of which Id. at 1068 This view conduct to believe. was reiterated the same in Deats Id. Rodriguez, at 238. F.2d 477 1023 609, 1229, 25. 380 U.S. S.Ct. L.Ed.2d (1965). 28. 475 F.2d at 1068. 1973), 475 F.2d 1066 cert. de See Raffel v. United nied, 414 38 L.Ed.2d 46 L.Ed. 1054 suppression

judicial of truth a bene This view is similar of British effect on the administration Criminal Law Revision ficial Commit perhaps unproved justice presented report tee. In a to Parlia unprovable.” Committee, ment in which prior Secretary, It is true that silence been established the Home must ‘be inconsistent witness-defendant “permis recommended that should be with later for oth- statement magistrates’ jury sible for court prior silence would not be ca- erwise to draw whatever inferences are reason credibility. pable impeaching But accused, able from the failure of the bar, explain the failure to interrogated, to mention a defence the source of the puts which he forward at his trial.” upon explana- the later does cast doubt suspect would to re given tion that wife had him defendant’s silent; so, main if he did fact money. should be allowed might be introduced at It would trial. to evaluate the witness-defendant’s testi- the court or to determine mony light past silence, at trial an adverse inference should be drawn arguably inconsistent with an explanation. from the innocent defendant’s omission.32 13, 17, U.S.App.D.C. Report 30. 109 283 F.2d Criminal Law Revision Committee improper at 21. Even if an inference permitted by judge’s “misdirection,” the trial Committee, may it present Law Revision Elev- be “harmless error” Criminal under (General) Report, Compare enth Britisli Hale’s Evidence standard. generally permit appeal, case Prior law did not comment witli a British criminal recent by regard on defendant’s silence. See id. at 16- discussed the in the Committee to 17; Cross, C1967). change: proposed R. effect Evidence 180 It is of the interesting wrong opinion to that the law In it note Revision our it is that change permissible Committee in Draft Bill makes the should not be the or magistrates’ Clause of Part I: infer- court to draw whatever (1) any proceedings in Where ences are of reasonable from the failure 1.— against person accused, interrogated, a an the offence to mention evidence given puts that the accused—(cid:127) a defence which forward at (a) any charged at before he time trial. trary it seems To forbid to us to be con- being offence, questioned by help- and, with the police on a to common sense without trying ing give unnecessary innocent, officer to discover whether to an advantage guilty. or whom the offence had been commit- to the Hardened crimi- ted, any advantage present failed to fact relied in mention on nals often of take proceedings ; any questions his defence in those or rule at to refuse to answer (b) being charged all, may greatly hamper po- on with the offence or and this officially might prose- bring investigations informed that be lice and even their to it, any cuted for failed to mention such a halt. re- Therefore abolition of the fact, help justice. striction would . . . [In being a Cr.App.R. 102,] fact which in the ex- circumstances Sullivan isting reasonably accused, smuggling the time he could was convicted of who expected ques- Switzerland, have been to mention when so watches from had to refused tioned, charged informed, questions by as the case answer Customs officers. may be, court, determining summing judge, in whether in course of up, gone to commit for trial the accused or wheth- had referred to the refusal and answer, er there is a to and on: jury, determining court or whether “Of ful- course bear mind that he was guilty charged, ly questions, accused is of the offence entitled to to refuse answer may that, just draw inferences from such the failure he has an absolute to do appear proper; may, and the failure and it is not be held him that inferences, as, you might the basis of be treated he did that. well think But capable amounting to, or as corrobora- that if a anx- man is innocent he would be any given against) questions. Now, tion of the ac- ious to answer members really jury, cused in which the relation to failure is of the is what it amounts material. to.” Report Appeal Criminal Law Revision Committee said with Court of reference this: British Of course most recent that Hale had failed volunteer thought question persuasive nothing explanation; sug- on this an there was then, gesting an But British are that Hale best. had been asked a di- people, they have had uncivilized rect and had years experience (whether actually some in administer- refused to answer this justice ing system na- immaterial, a which other occurred is thus because the envy. implication). view with a bit of tions received no such improper Thus the effect of the two A III. ERROR BEYOND HARMLESS such, easily questions were REASONABLE DOUBT being subject corrected trial Judge Judge Bazelon and Wis- Chief cautionary which, instruction, court’s lines dom reverse coñviction on my judgment fact, four it was. 326-page transcript: of a judge’s cautionary instruction was so way Q. any may indicate quick emphatic Did well money from? any where came have knocked out inference unfa- No, vorable defendant Hale which the A. I didn’t. prosecution hoped draw from the Q. Why not? possession mere fact of Hale’s necessary feel it was A. didn’t robbery. immediately after $150 at the time. Assuming error, uncor this was even standard harmless be error, reverse yond I would rected be loath to doubt is well known a reasonable solidly appears California,34 Chapman which which re conviction from judge quires But federal constitu founded.33 alert that “before a gave immediately sponte harmless, sua error can held here tional be removing instruction, corrective a belief must be able to declare court jury’s to be mind inference beyond reason it was harmless Hale’s drawn from failure further offer doubt.” This standard able explanation the time “com Nelson: elaborated Anderson v. his arrest. failure to ment on a defendant’s harmless er cannot labeled both [at trial] be observed It should replies ex prosecutor’s questions comment in a case where such ror guilt implied tensive, an inference where were couched terms omitted). (citations pretty plain all mem- So the Id. “It seems at 17-18 any rule, jury, they present factor of common British with the bers of considered, saying properly all, would to error” been “harmless must have sense conviction, precisely discussed in as learned what sustain themselves opinion. appellant judge III this them. was Part of to said odd, answer, obliged if he how but not robbed, reports innocent, Anytime himself not have that he should a victim was assailants, generally sets out officer anxious to tell the Customs been why describes them, Geneva, of whether in immediate search he had been to with the away, walking bag, put spots distance some and so on.” men the watches two authorities, yells referring excitedly one Then, of of them that one after say robbers, unerringly judgment one of the that some- identifies went per- other) (but pair as one on silence times comment the accused’s crime, petrators accused unfair- identified was no of the was unfair but there large comparatively having person case. It continued: on ness then possession dividing may line be said and “The what sum (not explanation may very one, even whatever no what not be said is a fine he offers employment), wages perhaps all of in a for current is whether as and it doubtful up per- present as solid evidence or- even this adds about like the it would be get. dinary any ordinary ceptible ever courts street crime as the to the members of thought jury.” our so. local citizens A up compelled, they mixed victim on held that That later became The court were insignificant existing law, when com- irrelevant details is state hold certainty pared judge’s of identification of with his was a misdirec- that tion, comment immediately appeal the crime. Hale after dismissed the under proviso 4(1) Ap- to s. the peal of the Criminal 824, 828, (c. 23) ground 17 L. Act 1907 87 S.Ct. 34. 386 U.S. justice possible miscarriage “no oc- Ed.2d 705 curred.” a California, is stressed to the as from silence conviction, where there L.Ed.2d basis of supported have could grounds majority panel both On bar, acquittal.”35 In the case at decision review our full court. merits be defendant’s silence comment extensive; in no fore guilt was stressed to ference of cautionary jury; instruction and a given.36 UNITED STATES of America trial, fol- If four in Hale’s those lines immediately by in- a corrective lowed PERKINS, Appellant. Mamie E. struction, er- do not constitute harmless No. 71-1804. my doubt, beyond a reasonable ror Appeals, United States Court of anything colleagues of the Su- left two preme District Columbia Circuit. Chapman in this standard Court’s April 5, Argued Circuit ? May 28, 1974. Decided conviction. affirm Hale’s would BAZELON, Judge, and Chief Before tamm, wright, McGowan, ENTHAL, lev- MacKINNON, ROBINSON, Judges. WILKEY, Circuit ROBB and

ORDER

PER CURIAM. sugges- appellee’s On consideration of rehearing banc,

tion for en en banc Ordered the Court suggestion aforesaid denied. TAMM, Judges of Circuit Statement MacKINNON, and WILKEY ROBB why they grant Rehearing En would

Banc: As to the existence of majority opinion the court’s to contrary Supreme deci- Court’s sion in Raffell United L.Ed. a decision specifically which the declined to overrule.

majority opinion cent Circuits, contrary re- is also decisions the Third Fifth although agreement with a decision of the two-to-one Tenth Cir-

cuit, Judge Wilkey’s cited dissent. any prejudice As to to the defendant Hale, certainly occurred, even if it was cured the trial court’s prompt instruction be- and was harmless

yond majority a reasonable doubt. The opinion attempts here in this abolish Supreme Court standard of Chapman harmless error laid down again 523, 523-524, dis- U.S. where S.Ct. “ordinary tinguished error” 20 L.Ed.2d 81 between amounting “egregious misconduct” process. Donnelly DeChristoforo, See also due denial of constitutional L.Ed.2d 431

Case Details

Case Name: United States v. Flemming Anderson, United States of America v. William G. Hale

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 1, 1974

Citation: 498 F.2d 1038

Docket Number: 72-1848 and 72-2066

Court Abbreviation: D.C. Cir.