*1 19-20, Cong., reprinted 82nd 2d Sess.
[1952] U.S.Code Cong. & Admin. News pp.
1960, 1980-81, that action does not vitiate underlying principle Chapter that a XI compensate per-
debtor not contract to
sons involved in administering the estate compensation
unless their is consistent with policies Judge of the Act. Gurfein ac- FAS,
knowledged principle in In re
supra, by noting that even if the debtor had
agreed compensate the indenture trus-
tees, agreement such would be of no effect. FAS, supra,
In re F.Supp. n.2.
The order of the district court is reversed.
UNITED STATES of America AGEE,
George Appellant. 77-1675,
Nos. 77-1689. Appeals,
United States Court
Third Circuit.
Argued Dec. 1977.
Reargued En Banc Nov. 1978.
Decided March 1979. 18, Denied June
Certiorari
See *2 Attorney
States should not have introduced suppressed in a evidence which had been arising prosecution state out of the incident; (2) the trial court did not same jury include in its instructions to the charge requested; Agee’s counsel had (3) jury in a was disclosed to the police prior conversation with the to his arrest, Agee them that there did not inform car; (4) judge were narcotics in his the trial questioned presence Agee in the regarding waive his Fifth his decision to testify. Amendment not to (cid:127) by Agee While all of the issues raised attention, appeal it is the this have had our concerning Agee’s third conversation issue— Marston, Atty., David W. U. Walter S. S. police prior with the to his arrest —that Jr., Chief, Batty, Asst. Atty., Appel- U. S. ordering rehearing this resulted in our Section, Leadbetter, late Brigance Bonnie appeal en banc.1 claims in connection Pa., Atty., Philadelphia, ap- Asst. U. S. for with this Court’s issue that pellee. decisions in United v. Hale2 and States require the Doyle v. Ohio3 reversal of his Douglas Riblet, Turner, Alan De- Asst. so, argues, conviction. This is he because fenders, Pa., Defender Association of Phila- his exercise of the to remain silent Pa., delphia, appellant. for jury. Contrary was disclosed to the rights argument, we hold that his Argued Dec. under Haie the Fifth Amend- and under DUSEN, Before and VAN Cir GIBBONS Finding ment were not violated. no merit GERRY,* Judges, Judge. cuit District arguments, other we affirm. Reargued Nov. 1978 In Banc. SEITZ, ALDISERT, Judge, Before Chief I GIBBONS, ROSENN, HUNTER, WEIS, February was arrested on GARTH, HIGGINBOTHAM, VAN DU- by Philadelphia Police Michael Za- Officers SEN, Judges. Circuit gursky Wissman. The arrest- and Robert they ing officers testified that observed OPINION OF THE COURT Agee driving an automobile which made GARTH, Judge: Circuit signalling. They without fol- two turns defendant, appeal by This is an vehicle and waived it over to lowed their George Agee, They in the then left conviction the side of road. possession up district the car which court of of heroin with vehicle and walked testified stopped. intent to distribute in violation of 21 Officer Wissman U.S.C. driver, (1976). Agee Agee, that the grounds asserts four that he observed § reversing attempting under the seat a foil (1) his conviction: The United to conceal * Gerry, Honorable John 2. 422 T. United States District Judge Jersey, sitting (1975) for the District of New . designation. 49 L.Ec.2d 91 3. 426 U.S. Agee’s appeal, initially panel heard (1976) . court, was ordered to be reheard April original court en banc on 1978. The panel opinion was ordered vacated on the same date. it out the window on him or throw packets of tan
package containing glassine what. approached he the car on powder. As side, Zagursky saw a Officer
passenger’s package the floor in front of similar him. it over to A. I started to throw Believing the passenger, Andrew Smith. it to him or know whether to throw didn’t heroin, they to be powder packages *3 a got Then I throw it out the window. under arrest and placed Agee and Smith my center of car called thing little in the analy- Subsequent packages. seized the foil up. lift thing little I could got a a— a packages sis revealed that the contained Q. console? Is that the heroin, quinine, procaine and mixture of Console, up to lift yes. I tried A. So reducing sugar. I couldn’t put it in there. this console to used, always I get up it because grand jury A federal returned an indict- of those pencil to stick it in one use a posses- charging Agee ment and Smith with put want push up holes to it if I sion of heroin with intent to distribute I couldn’t hide something in there. So After a violation of U.S.C. 841 § my seat put there. I it under under So Agee trial at which but did testified Smith away. my got and I out of car not, guilty found both defendants charge. sentencing,4 Agee ap- After conviction; pealed appeal- from he his also Q. happened What next? denying ed from the trial court’s order his walked back got my A. I out of car. I entry judgment acquittal
motion for of a policeman.” toward the or, alternative, for a new trial. events im- testimony regarding His was as fol-
mediately preceding his arrest II lows: “Now, they like thought I felt A I didn’t they stopping were me because trial,
Agee giving at his testified I brakelights. why This is have no leading account of the events arrest me. thought they stopping were February 1976. On direct examina I anyway I come to the back. So So tion, date, he testified on that said, why policeman, I T know told the passenger a was unlicensed taxi me, have you’re stopping because I don’t cab, and that passenger he have been a brakelights.’ any in his taxicab on While occasions. my I showed him card and So owner’s Agee driving was passen with Smith as his my my driver’s license. he looked at So ger, policeman patrol signalled a in a car my owner’s card driver’s license. So pull him to over He to the side of the road. know, said, me, you so he ‘Do he asked passenger did so and then informed his you?’ I any weapons on So have police: stopped been said, ‘No, any weapons.’ I don’t have pulled my A. “I said, over on the side and so I any dope?’ He So ‘Do said, passenger, Smith, said, ‘No, dope asked me—he on me.’ I don’t have no said, ‘Why you stopping.’ po- are I ‘The then I went to So he searched me. So They’re liceman pulling is in back of me. open up my the trunk of car me, dope me over.’ Smith said to T have about police officer bother didn’t bag on me.’ He of silver foil straight throwed looking into the trunk. He went bag picked it under- my over across over to me and I He looked to the front of car. package up. going I was to throw it back on him. He found this neath the seat. the seat.” I had stuck underneath didn’t know whether to throw it back three-year years prison. Agee ordered to serve to ten was also sentenced suspended, special parole terms of his he violated the if The execution of this sentence was probation. was ordered to be confined for six five-year probation months with a to follow. not, completion he, After the intentionally direct tes- Did he timony, narcotics, he was cross-examined knowing first that these were hide attorney govern- Smith’s and then police, the narcotics from the went back During ment. his cross-examination of the police attempted car and to diver Agee, Agree Smith’s counsel asked whether finding the narcotics [sic] he had “made statement saying police, “Hey, instead of time?” replied that he had him,” guy dope. has when he Arrest not. The then asked a series of conceals the from the narcotics questions Agee’s testimony which retraced giving with the them intention of back on direct examination. admitted Smith, knowing probability in all that, at the time he speak left his car to going Smith is to sell them? police, with the he knew that there were Agee “references contends that these were drugs in possession. Agee also ad- to and comments on exercise of his [his] *4 mitted that he had concealed some of those right improper to remain silent were [and] drugs under his seat. He was then asked require a new Appellant trial.” Br. for purpose whether his approaching po- at 12-13. licemen keep police was “to from com- government The urged has that this court ing up your Agee to car.” replied that may Agee’s not consider Fifth Amendment what I had in mind.” He further “[t]hat’s claim, object because did not at trial testified that “what was in mind” was [his] questions parts to the and to the of the “tell to get to take his stuff and out purportedly summation which referred to my of car”. prosecutor The then asked Agee’s prior “silence” to his arrest. The Agee: trial, record Agee’s reveals that Q. But it your wasn’t in say mind to attorney had made a motion to exclude police, “That my man in car has questions regarding the “defendant’s si- dope. Arrest him.”? lence at the time of arrest.” The district No, A. ma’am. court declined to rule on the motion at that examination, On redirect Agee testified However, time. the court stated that dur- that he had not police told the that Smith trial, would, ing hearing it out of the of drugs had because he wanted to consult the jury, request ruling entertain a for with lawyer and did not believe that the give and that it appropriate would an in- policemen would tell the truth. regarding struction the defendant’s to trial,
During During Agee’s remain silent. summations, their the attorneys object counsel failed in both each instance Smith and the re- questions arguments subject turned to the which he now Agee’s conversation police with the asserts were prior to his references to his client’s si- arrest. Smith’s argued counsel lence jury at arrest. Because we hold that no should con- Agee’s sider “testi[mony] error that he did occurred which would have been re- not advise the happened timely objections as to what versible even if in the had been car.” prosecutor made, The reviewed we need not consider whether the account of what he “plain did and did not any appli- tell the error” doctrine would have police prior to his arrest: cation to these circumstances.5 note, however, 5. We avoiding prejudicial that the error asserted the cumulative effect of appeal predicated this complains. on the cumulative which now The failure of questions contemporaneous effect of a number of asked of counsel ob- make jections only deprived and statements made in summation. Had art of the district cv objected opportunity counsel at side bar to to take action at an remedial questions, early stage, these the district court —if it found but it also the conclusion leads to objection issue, having originally recognized to be meritorious under Hale and this Doyle precluded object question- further counsel made a tactical decision not to —could ing argumentation point, perhaps during or on this trial. new trial either under the rule of evidence
B
the Fifth
in Hale or under
announced
decisions,
v.
In two recent
United States
However,
reveals
the record
Amendment.11
Ohio,7
Doyle
Supreme
Hale6
Agee, unlike the defendants
prosecutor
whether a
Court has considered
Court,
Supreme
had
cases considered
questions make
which
ask
comments
facts of
regarding the
not remained silent
reveal to the
that the defendant exer
charged.
In-
he was
the crime with which
after his
cised his
to remain silent
stead,
testimony,
according Agee’s
own
Hale,
who had been
arrest.
a defendant
police which he
he made statements to the
charged
robbery
with
in the district court
hoped
knew
false and which he
to be
for the District of Columbia testified
ongoing
prevent
discovering
them
money
had found on
distinguishes crime. This circumstance
given
by his
person
had been
to him
Doyle.
case from Hale and
present
prosecution impeached his testi
wife. The
(as the defendant
mute
Agee had stood
mony by causing
during
him to admit
cross-
If
all
“what’s this
did)12
asked
or had
that he had not informed the
in Hale
examination
(as the
about,”
remained silent
money
at the
and then
source of
did),13
Court,
perhaps
time of his
arrest.
defendants
However, the
exercising
authority
supervisory
its
over
a different case.
would be
courts,
trial.
It
federal
ordered a new
its cross-examination
prosecution in
case,
inquiry;
found that in the circumstances of the
open new avenues
Agee did not
he
significant probative
Hale’s silence lacked
what
repeat
merely caused
value
response
and that
reference to it carried
to his
already admitted
*5
8
“intolerably prejudicial impact.”
with it an
attempted
he had
questions: that
counsel’s
context, it is
police. In
to deceive the
Ohio,
subsequent
Doyle
In the
case of
v.
Agee now
which
clear that the
to
the defendants testified that
had been
mind”
was “in
objects
it
[his]
—whether
by government
“framed”
a
informant.9 On
dope
police that
inform the
Smith
—was
cross-examination,
prosecutor
the
asked
purported silence.
not a reference to
each defendant whether he had told this
that
Rather,
to his admission
it referred
them;
policeman
after he arrested
each
approached
he
in mind when
what he had
replied
Supreme
that he had not. The
in conversa
engaged them
police
and
impeachment
Court held
“the use for
coming up
keep
police
tion was
silence,
purposes
petitioners’
at the time
Moreover,
attempted
was this
car.
it
to his
receiving
warn-
arrest and after
Miranda
“silence,”
was
that
deception, not
ings, violated the Due Process Clause of the
in her sum
prosecutor
emphasized by 10
Fourteenth Amendment.”
mation,
which are
parts of
the relevant
margin.14
reproduced at the
in
defendants
like the
argues,
Here
is the
time of arrest
at the
ques-
“Silence”
he was
because
Doyle, that
and
Hale
Amendment
the Fifth
element of
critical
at
“silence”
his
at trial about
tioned
appeal.
Agee relies in this
right
granted
arrest,
he should
time of
light
analysis
Doyle,
of Hale and the
found in
2133,
171,
99
L.Ed.2d
45
95 S.Ct.
422 U.S.
6.
right recognized
there is no doubt that the
(1975).
Doyle applies
prosecutions
to federal
under the
2240,
610,
91
L.Ed.2d
Fifth Amendment.
49
96 S.Ct.
7. 426 U.S.
(1976).
Anderson,
U.S.App.
12. United
v.
States
168
180-81,
2240.
96 S.Ct.
at
8. 422 U.S.
305,
1038,
(1974),
D.C.
1041
aff’d on
grounds,
other
422 U.S.
95 S.Ct.
45
together but
Doyle
arrested
Wood were
and
9.
(1975);
L.Ed.2d 99
see also id. at 1047 n.5
appeals were con-
separately. Their
tried
were
J.,
(Wilkey,
dissenting op.).
solidated.
n.5,
13.
355
Supreme
right
that
Court has described
on a defendant who has exercised that
he
right
right by
remain silent unless
choosing
as “the
‘to
to remain silent.16 The
very
speak
statement
of that
rationale
chooses to
in the unfettered exercise
demon-
”15
Doyle
strates
that
application
can have no
which the
of his own will.’
The rationale
to a case in which the
adopted
defendant
did not
for its decision
exercise his
Doyle
fundamentally
right
is
unfair
to remain
silent.17 Courts
prosecution
impose
for the
penalty
other circuits have so held.18
it out of
took
reason Smith
for some
police,
stopped
they were
that when
up?”
police
showed
said,
dope
when
concealment
T have
Smith
defendant
he, Agee, at-
package
me,’
him a
threw
Arizona,
436, 460,
con-
package
in the
first
Miranda v.
tempted
384 U.S.
to hide
open,
1602, 1620,
get
he
and,
(1966), quoting
couldn’t
S.Ct.
16 L.Ed.2d
when he
sole
Malloy
1, 8,
back
Hogan,
he went
and then
seat
378 U.S.
hid it under
police
officers.
L.Ed.2d 653
to talk
Now,
you
whether or not
believe the de-
n.10,
16.
alleged
“silence” occurred
to his arrest
C
giving
warnings.
of Miranda
It is
abundantly
might
clear
from this
record that
A new trial
be re-
nonetheless
Agee did not
quired
remain silent.
here if
were to conclude that
we
Muscarella,
right
In United States v.
F.2d 242
remain
exercise his constitutional
silent,
(7th
1978),
prosecution
spoke,
witness testified
but rather
albeit without
first
originally
the defendant had
declined to
being
rights.
advised of his
the instant
rights.
waive his Miranda
The court observed
case,
hand,
explicit-
on the other
accused
subsequently spoken
that the defendant had
ly
right
availed himself of his
to remain si-
police,
and therefore it affirmed the convic
proscribed
lent. The
Court has
Doyle
tion: “in
[Hale
]
defendants did
prosecutor
comment
a court or
on the fact
in fact exercise their
to remain silent once
testify
that a defendant did not
at trial on the
right,
had invoked the
which is not
ground that such
on the
comment ‘cuts down
situation in the instant case.”
In United States
privilege by making
costly.’
its assertion
Turner,
(8th Cir.),
denied,
357
proba-
is that their
answers were admissible
prosecutor’s ques-
of the
prejudicial effect
outweighed
confined to the issue
greatly
comments
tive value was not
tions and
Hale,
pros-
probative
only
value.
In
the Su-
were the
credibility.
their
Not
Agee’s
during
preme
concluded that “silence
designed
Court
to show
questions
ecutor’s
pro-
police interrogation
significant
lacked
suspect, but
testimony was
Agee’s direct
”
180,
422
at
95
value .
.
.
U.S.
bative
crime
upon the substantive
they also bore
suspect re-
2138. Evidence that a
Hale,
charged.
In
with
he was
he received Miranda
mained silent after
questions
prosecutor’s
purpose
sole
of the
ambiguous,
warnings
insolubly
is
because
si-
post-arrest
regarding the defendant’s
whether he remained
cannot be determined
exculpatory
his
suggest
was to
lence
exercising
silent because he was
his Fifth
By
testimony was a recent fabrication.21
he fabricated
Amendment
or because
certainly
contrast,
relevant
here it was
testimony
exculpatory
at a time subse-
Agee had
charged
prove
the crime
ambiguity
quent
No such
is
to his arrest.20
informing
choice between
made a conscious
here,
present
Agee’s
because as
own testi-
crime and deceiv-
ongoing
of an
shown,
mony
Agee did not stand mute
has
leave without
they
ing them so
did he assert his
to do so. In-
nor
discovering the heroin.22
stead, Agee
approached
testified that he
Agee may have suf-
prejudice
Whatever
them, answering
spoke
with
cho-
revelation that he had
fered from the
when he was asked whether he had
from the
ongoing
to conceal an
crime
sen
dope.
regarding what he
testimony
His
during his own testimo-
police occurred first
say
approached
chose to
when he
do
In view of
examination.23
ny on direct
provided a
em-
officers
context which
circumstances,
reliance on
these
probative value
what he
phasized the
prosecu-
Hale is without foundation:
say
police. Although
chose not to
probative
argument
tor’s
actions,
concerning Agee’s
evidence
state-
holding of
violate the
value and did not
ments and omissions
to his arrest
Hale24
required
careful evaluation
light
exculpatory
of his
D
trial, it is clear that this evidence did not
ambiguity”
suffer
from the “insoluble
Having
concluded
Supreme
which concerned the
as
Hale/Doyle arguments fail insofar
Hale.
next to
we turn
pertain
government,
references
an examination of two isolated
Another factor which leads us to conclude
Agee’s “si-
counsel to
prosecutor’s questions
made
177,
Seep.
supra.
20.
lence.” barely present- Because the issue is Even if we were to conclude that these ed, all, record, by if at this we need not arrest, were at Agee’s references to silence applica- discuss whether Hale and are holding we would have reservations about ble when the reference defendant’s that, contemporaneous in the absence of by silence is made his co-defendant rather objection, plain this was error.27 by prosecutor25 than Here the record only arguable between The distinction ambiguous question reveals but one and one questioning argument by the and argument by reference in counsel Smith’s government, which we have held to be might arguably implicate be said to proper, by counsel Agee’s “silence.” attorney question which Smith’s During long his cross-examination of broadly asked was more framed and did Agee, Smith’s counsel asked him: “Did explicitly Agee’s refer encounter with any make police statement However, police prior to his arrest.28 “No, Later, Agee replied, time?” sir.” our review of the record has satisfied us summation, his again Smith’s counsel n trial, four-day in the context of this briefly question touched on the of what jury would have understood and recol- Agee did and police: did not tell the question this statement lected and Smith’s [Agee] He testified that he did not advise during argument Agee’s as references happened as to what in the car. police. initial feneounter with the di- things All of these are that have to be Agee, subsequent rect examination of all taken into in determining consideration in ar- cross-examination and all references weight evidence, credibility of the gument Agee to what stated and failed to and the truth and the reasonableness pre-arrest state to the concerned his Agee’s story Mr. sorry testimony. —I’m — police. encounter with the trial, During the Agee never voiced Therefore, Agee’s argu- we conclude that objection to either of these remarks which concerning ment he his co-defendant’s com- now construes as comments on his “si- only question rejected lence.” It was ment and under post-trial in his must be motion that for the first suggested analysis previously time he the same which we have they might precluded by Doyle. Hale and set respect government’s forth with Doyle, prosecutor In Hale and it was the merited on to trial. “silence” questioned situation, each case who the defendants re- this it is evident that no Fifth Amend- garding their exercise of their to remain implicated. ment was silent. The Court did not consider previously 27. We have discussed our reserva questioning whether similar for an- counsel applying plain tions about error doctrine to required other defendant would have a new case, Agee!s this in which have counsel trial. object made a tactical decision not to sidebar summation, trial, during objection Earlier counsel for Smith and where at an early had stage might permitted stated: preju Agee’s testimony Mr. the district court to avoid the cumulative was rather interest- ing say questions dice from a number novel and I must and comments have been February complains. in this case since of 1976 of which now See note 5 and this story. supra. was the first time I heard that objection counsel made to this state- grounds (1) ment at sidebar on the that: during 28. The statement Smith’s counsel attorney date on which Smith’s entered the summation that testified that he did not record, (2) case was not in the it character- happened in advise the about what had Agee’s testimony “story”. objec- ized as a No broadly the car is not so framed as his any Hale/Doyle ground. tion was made on during cross-examination. The statement dur- disregard The court then instructed the likely ing argument seems to have been under- the statement because it was irrelevant stood as a reference to cross-examination supported by was not evidence in the record. he v/hen testified that Subsequently ruling Agee’s post-trial attempted possession to conceal motion, the court observed that did not police. heroin from the We have held that object instruction, adequacy to of nor proper. comment on this Agee argue did that Smith’s counsel had com-
359
highlighted
up
which was not
or followed
in
comments.
did not exercise his
silent,
by
to remain
and therefore the Fifth
in
the
cross-examination or
summation
may
pre-
not
to
attorney,
Amendment
be invoked
prosecutor or
could not
clude comment on what he said and failed
prejudice
which
have added to the
say.
may
previ-
as a
of his
have suffered
result
testimony regarding his conduct and his
ous
however,
assuming,
ques
Even
the
police prior
conversation with the
to his
Agee by
asked of
fell
tion
counsel for Smith
arrest.31 In the context of this record
Hale/Doyie proscription,
within the
it
view
to which we
in
of the circumstances
clear to us that
it was harmless.29 This is
adverted,
is no
have
we hold that
there
repetitive questioning
not a ease in which
possibility
question
that the lone
reasonable
jury’s
focused the
attention on the defend
statement
asked
and the
Smith’s counsel
Davis,
ant’s silence.
See United States
any way
in his summation contributed
(5th Cir.),
denied,
546 F.2d
594-95
cert.
Agee’s conviction.
431 U.S.
here, up by and it was not followed counsel Ill Moreover, question for Smith.30 the was A ambiguous, and we do not believe that it jur was understood and recollected the contends that the district court anything ors as suppress more than a reference to erred when it denied his motion to police. initial encounter with the the heroin which had been seized the Furthermore, question directly this did not time of his arrest. Agee’s purported
link
silence with his excul
arrest,
Following
their
and Smith
patory testimony. Nor do we believe that
possession
heroin with
charged
were
with
single question
could have added to
intent
to “deliver”
violation
Pa.Stat.
jurors
whatever adverse
inferences
(1977). They
Ann. tit.
moved
35 780-113
§
have drawn
own direct testi
Philadelphia
Court of Common Pleas
mony that he had concealed heroin from the
suppress
hearing,
the heroin. After a
police and lied to them
ques
when he was
May
court found on
tioned.
testimony
Philadelphia police officers
A single question,
may may
regarding
of the arrest
circumstances
pre-arrest
referred to
silence
It therefore ruled that
and was not credible.
Doyle
Davis,
Supreme
(5th Cir.),
29.
In
Court observed that
States v.
546 F.2d
594-95
government
argued
denied,
had not
that the use of
cert.
431 U.S.
97 S.Ct.
“might
Here,
(1977).
defendant’s silence
have been harm-
counsel
for
error”;
“accordingly”
less
it
reversed the con-
question.
already
single
con
asked a
We have
considering
viction without
whether
the error
subsequent
cluded that
cross-examination
might have affected the result of the trial. 426
proper
and summation
was
619-20,
Similarly,
U.S.
Hale,
arrest
that the narcot-
its
boundaries. See United
and Smith and
fuentes,
845,
(4th
849
ics seized incident to that arrest must be
v.
504 F.2d
States
Si
Smith,
suppressed.
1974);
Thereafter their state indict- Cir.
United States
200,
(4th
1971).34 Because the dis
prossed.
ments were nolle
202
by
trict court was
the state
not bound
20, 1976,
Subsequently
July
grand
a
action,
court’s
at trial it
it did not err when
jury in the
Pennsylvania
Eastern District of
permitted
into evidence of
the introduction
present
returned the
indictment which
the heroin.
charged Agee
possession
and Smith with
of
heroin with intent to distribute in violation
B
(1976).
21
again,
of
841
U.S.C.
Once
§
have the district
sought
suppress
defendants moved to
the heroin
jury
court include in its instructions
seized in
car.32 The
court
district
following charge:
motion, finding
denied the
that the
person
length
The
of time which
probable
had
cause to arrest both
and
object
issue of
holds an
is relevant to the
and that
narcotics were seized
and thus
knowing and intentional control
“plain
while
were in
view” of the
legal possession.
you find that a
If
officers.
person
object only flectingly
holds an
[sic]
Agee contends that
the district court
monentarily
thereby
and
does
[sic]
erred when it
sup-
refused his motion to
not form an intent to exercise dominion
press the heroin. He asserts that the doc-
object,
then
are
and control over
estoppel
trine of collateral
barred the
instructed that
must find that
relitigating
ruling by
knowingly and inten-
defendant did not
the Philadelphia Court of Common Pleas.
possess
object
you must
tionally
Agee’s suggestion that Ashe v. Swenson33
guilty.
find the defendant not
precluded
finding,
the district court from
as
request
Agee argues
denied.
His
did,
probable
that the
cause to
warrants a new
this denial was error which
arrest
is without merit. The United
trial.
party
suppression
States was not a
hearing
However,
agree
in the state court
were the
we
not
that the dis-
held
nor
do
request
actions of its officers
refusing Agee’s
under
in trict court erred in
consideration
charge.
correctly
forum. To hold that a
in-
state court
The district court
respecting
meaning
determination
regarding
conduct of
structed the
state
binding
“possession”.35
required
officials is
on the
court was not
United
The
States,
206,
32. The defendants
also moved to dismiss the
Elkins v. United
364 U.S.
indictment,
223-24,
1437, 1447,
contending that
it was invalid un-
The Witness: Your
question
testify
I would like
who
defendant
chooses
to talk
my lawyer
let
him to
in his own behalf in order to ascertain
explain this to me more
better so can
doing
whether he is
with a full aware-
so
clearly understand this.
rights
ness of
the Fifth Amend-
his
under
Very good.
procedure
Court:
I think
ment. A
such as the one utilized
client,
your
should talk
Mr. Turner.
the district court here can be valuable in
pos-
insure that no one would be convicted for an
In order to find that
the defendant
heroin,
prove
act done because of mistake or accident or
sessed
must
Government
knowingly
physical
other innocent reason.
control
that he
had direct
Intentionally
means
the defendant
or else
over heroin at the time
unjer
knowingly
knowingly
did an act which the law forbids.
had the heroin
that he
you,
question,
As I have instructed
one of the essen-
control or dominion at the time in
power
tial elements
meaning
knowingly
Government must
that he
had the
prove beyond a reasonable doubt is that a
or control
and intention to exercise dominion
knowingly
intentionally pos-
defendant
over the heroin.
sessed the heroin.
beforehand,
Despite
disapproval
our
of the district
exposing
problems that such a
may experience
witness
if he testifies.
case,
practice
we nonetheless
court’s
in this
However,
though
recognize
even
we
possi-
conclude that there is no reasonable
practice,
cogni-
value of such a
we are also
questions
bility that
the trial court’s
con-
dangers
zant of the inherent
that such an
tributed to
conviction. See Schneble
inquiry presents
question-
where the court’s
Florida,
427, 432,
ing
place
jury.
takes
before
(1972). Here, nothing
Here the
judge
record reveals that
judge’s
district court
remarks could lead a
did not
excuse
nor did he take
juror
judge
reasonable
to conclude that the
steps
prevent
jurors
other
from hear-
believed that
would be
*12
ing
Agee
his examination of
and his collo-
Indeed,
perjurious.
the
incriminating or
quy
ap-
with
counsel. While we
only
jury
inference which the
reasonable
prove of the careful consideration which the
could draw from the court’s remarks
judge
district court
gave
Agee’s rights
to
Agee
voluntary
that
had
a free and
made
the
under
Fifth Amendment and the con-
testify,
he had.
decision to
as indeed
Such
exhibited,
cern which he
we are severely
testify
a decision to
could well have im-
by
troubled
the manner in which the court
pressed
jury favorably.
the
implemented
procedure.
this
We observe that
cir
presents
case
Although we indicate in our later
cumstances
far different
from those
discussion that
the district
judge’s
court
presented in Webb v. Texas36 and United
comments
Agee
could not have affected
Webb,
adversely
In
the trial
inasmuch as
States Morrison.37
in fact did
testify, we are
judge
nevertheless convinced that
prisoner
admonished a
who had been
practice requires
better
in
such
regard
called as a witness for the defense
quiry, no matter how solicitous of a defend
ing
dangers
perjury, assuring
him
rights,
ant’s
must be conducted with the
that if he were convicted of that crime he
present.
Excusing
jury,
while
eligible
parole.
would not be
for
The wit
consuming
time
and in some instances bur
thereupon
testify.
ness
refused to
The Su
densome,
guard
will
against
nevertheless
preme
held that the
defendant
any unjust
improper
being
inference
deprived
put
been
a
of his
to
on
by
drawn
jury especially
if the defend
case, however,
defense.
In this
no refer
ant
testify
elects not
to
inference
—an
by
possibili
ence was made
the court to the
fully dispelled by
not be
a cau
himself,38
ty
perjure
would
nor
tionary
Thus,
require
instruction.
we will
prevent
did the court’s comments
that henceforth
questioning
all such
taking
the stand.
discussion be
jury’s pres
held outside the
Morrison,
prosecution
ence
jurors
or in such a
informed
fashion that
colloquy.
cannot hear the
if she
defense witness
to the trial
95,
lie,
probably going
36. 409 U.S.
the witness stand and
it is
(1972).
years
to mean
and at least more time
several
you
going
are
to
It will
to have
serve.
(3d
1976).
37.
crime. When she was called as a witness defendant, many she refused to answer IV questions put by her defense coun- ground might sel on incrimi- judgment of sentence will be af- prosecu- nate her. We held there that the firmed. We will also affirm the order tor had interfered with the defendant’s judgment which denied motion right to have give his witness evidence in acquittal new trial. or a contrast, By his favor. here was not giving deterred from evidence in his own GIBBONS, Judge, with whom Circuit prosecution behalf and no threats of further Judges and HIGGIN- Circuit ALDISERT government. were made join, dissenting: BOTHAM The circumstances which led to the rever- George Agee, possession convicted of sal of the convictions in Webb and Morrison heroin in violation of U.S.C. § Webb, judge —in a statement a trial appeal grounds for a urges a number of that he would make certain that a defense trial, rejected by new which are all of prosecuted perjured witness was if he him- however, majority. grounds, Two of those self; Morrison, and in a statement are meritorious. *13 prosecutor that it would not be in a wit- defense, testify ness’s interests to for the I. THE TRANSACTION leading by key in both cases to a refusal Agee and codefendant Andrew Smith give testimony just defense witness to —are Philadelphia police were arrested present Indeed, here.39 as we have February They were indicted for previously only indicated the inference violating jointly. and tried U.S.C. § jury which the reasonably could have drawn Philadelphia police In that trial officers Mi- from the questioning court’s and statements Zagursky chael Wissman testi- Robert Agee, having was that been informed of his an morning they stopped fied that on that rights by the questioning, court’s neutral making automobile for two turns without will, testifying was of his own free volun- signalling. approached Officer Wissman tarily any government compul- and without automobile, stopped the driver’s side of the situation, sion. In perceive such a we no seated, Zagursky ap- Agee where was possibility reasonable that the court’s action side, proached passenger’s where Smith contributed to conviction. was seated. Both officers testified car,
The dissenting opinion agrees they approaching the while the front of the questioning regarding packages containing glassine pack- of a witness foil his saw knowledge of rights powder. package his Fifth Amendment ets of tannish-white One must be done jury’s presence. immediately outside the was on the floor of the car extent, To that we are unanimous. What front of The other was the hands Smith. disagreement who, Wissman, register Agee, the dissent does according is of was conclusion, with our our review the car attempting based on to shove it under seat. record, this error was harmless. Wissman testified that he then removed apparently The dissent disagrees, Agee because it from the car and arrested him for grant possession a new trial. The short answer of what the officer believed to be arrest, suggestion to that majority making is that a of this heroin. After Officer court has packages reviewed the record and has con- retrieved the Wissman edge cluded that there is of the seat and possibili- no reasonable floor of the car at the ty The questions pedal that the trial court’s and the seat contribut- between the brake a mix- packets ed to later found to contain conviction. See Schneble were Morrison, Morrison, In the witness took both Webb and the discussions with the admoni- presence place prosecutor’s tions to office. witnesses occurred out of the in the Webb, excused; jury. jury heroin, advance, quinine, procaine, repeated ture of re- and reduc- counsel his ing sugar. quest: behalf, [Wjhen testified arresting on his own while officers] [the day arrest,
Smith did not. stated that on my understanding made the it’s driving arrest he was unlicensed Mr. that no statements were made Smith, picked up taxicab and that he had Agee. know, passenger. whom he did not aas He respectfully request I would
testified that he drove to one loca- or questioning Court bar either direct tion, him, and, waited for re- specific point cross examination on that quest, spot started to drive him back to the either counsel for the Government picked up. where he had first him co-counsel, my Mr. Once Gershenfeld. unlicensed taxicab had a defective brake- Honor, Hale, again, your under believe light. According Agee’s testimony, blatantly it would be inadmissible. car, stopped the Smith threw one Appellant’s Appendix, p. A—156. The packet tin foil dope at him and said “I have request responded court to counsel’s as fol- on me.” claimed that he had no lows: knowledge possession of Smith’s of narcot- Well, the fact that no statement was ics. unsuccessfully tried to conceal made, jury certainly going to be packet compartment console appropriately instructed can the car finally packet thrust under have the when it appropriate instruction the seat. He then left the car and walked goes the fact that no rear, to its where he said to one of the any way statement was made cannot in officers, why you’re me, “I know stopping admission, taken as evidence of because I any brakelights.” don’t have silent, that he has an absolute to be When the officer asked him if he had so forth and so on. *14 weapons narcotics, nega- he answered Appellant’s Appendix, pp. at A-156-57. tively. him, The officer searched and then Agee’s persisted seeking pre- counsel in to searched the car. In the latter search the subject vent questioning at trial on the of packets officer found the referred to above. Agee’s silence at the time of arrest. How- II. ever, TRIAL judge REFERENCES TO the only district ruled that at
AGEE’S SILENCE specific question regarding such time as a Agee’s silence was asked would he rule on trial, At the joint outset of the obviously objection. counsel’s anticipating that his client would take the stand, Agee’s government Counsel attorney for the and for co- called to the district present during court’s attention the defendant were this decision of the Su- preme Hale, colloquy, Court in United in which the court in effect ruled States v. inquire, pres- could at least in the He jury, Agee’s asked for a ence of the about silence at the preliminary ruling that the appellant’s time During silence at of arrest. the course of the the time of arrest was advantage any purpose lawyers inadmissible for both took of and that such ruling. silence should subject any not be the of
inquiries or
during
comments
the course of
majority
makes much of counsel’s
the trial. When
judge
asked
the trial
object
every stage
failure to
of the line
at
explain why
raising
he was
early
the issue
court,
interrogation
which the
after re-
trial,
in the
counsel answered:
peated objection, actually
Opinion,
invited.
Well,
honor,
your
I don’t want
it to
say,
m.'jority
To
as the
post at 353 n. 5.
during
arise
the proceedings when the
does, that
tactical
this failure reflects a
jury is in the box.
trial,
object
patent-
during
decision not to
Appellant’s Appendix,
p.
at
ly
A-151. When
unfair to conscientious counsel who made
the court declined to rule on the
every
prevent
issue in
reasonable effort
refer-
silence,
Smith,
rather
passenger, possessed
ence
his client’s
and who fore-
than
the
say
warned the court and counsel. To
the heroin. Consequently, on cross-exami-
deprived
district
op-
the
court was
“of the
questioned
nation
Agee:
Smith’s counsel
portunity to take remedial action at an
Q.
Did
make
statement
early
is,
stage”
considering the colloquy
time?
above,
quoted
misstatement
the record.
No,
A.
sir.
majority’s argument
For two reasons the
Later,
Appellant’s
p.
at A-254.
Appendix,
the need for a
objection
about
simultaneous
rejected.
closing argument
jury,
should be
in his
Agee’s
argued
counsel
silence about
place,
objection
In the first
the
was made
impeached
the
narcotics in his car
credi-
quite explicitly at
outset
of the case.
bility at trial.
pointed
counsel
out
it would be
improper
government
for the
or for code
[Agee]
He
testified that he did not advise
inquire
fendant’s counsel
about or com
happened
in
as what
upon
subject
pres
ment
matter in the
car. All
things
of these are
that have to
jury.
of the
the participants
ence
All of
in
be taken
in
into consideration
determin-
the trial were
objection.
aware of
ing
evidence,
weight
credi-
ruling
Instead of
inquiry
that no such
bility and the
and the
truth
reasonable-
made,
should be
the district court in effect
story
sorry
ness of Mr.
—I’m
—tes-
permitted
attorneys
for the
timony.
and for Smith to ask the
and to
Appellant’s
p.
Appendix,
A-279.
put Agee
position
objecting
before
jury.
Attorney’s
Under
The Assistant
these circumstances the
United States
policy
objection
behind the simultaneous
cross-examination of
included
fol-
of affording
rule
opportunity
to avoid
lowing dialogue:
implicated.
error is not
Everyone involved
Q.
You had in mind that
could
and,
in
case was forewarned
conse
straighten
out with
back
quently,
error
could
been avoided.
your brakelights
the rear of the car about
requires
suspension
It
extraordinary
per
go
your way.
right?
and then
Is that
ception to treat
ruling
trial court’s
as
No,
straightening
A.
had in mind
anything
plain
trespass
but a
invitation to
just
my way,
going
out and not
no.
evidentiary
forbidden
Secondly,
area.
Well,
Q.
your
what was
mind?
objection
even in cases where no
whatsoev
made,
er was
repeatedly
it has been held
my
A.
What was in
mind? If
could
*15
prosecutorial
of the
utilization
defend
get
giving
out of
me a
policemen
not
plain
ant’s silence is
E. g.,
error.
United
ticket I
to tell
to take
going
601,
v. Harp,
(5th
States
536 F.2d
602
Cir.
get
my
his stuff and
of
car. That’s
out
1976);
Arnold,
United
v.
States
425 F.2d
what
my
was in
mind.
204,
(10th
206
1970);
Cir.
United
v.
States
Q.
your
say
But it wasn’t
mind to
Nolan,
588,
(10th Cir.),
594
cert.
police,
to the
my
“That man in
car has
denied,
912,
227,
396
90
U.S.
S.Ct.
24
dope. Arrest him”?
(1969);
L.Ed.2d 187
United States v. Brin
No,
A.
ma’am.
son,
1057,
(6th
411
1969).
F.2d
1059
Cf.
Anderson,
Appellant’s
United States
U.S.App.
Appendix,
pp.
v.
162
A-255-56.
305,
1038,
D.C.
498
(1974),
F.2d
1040-44
closing argument,
her
the Assistant United
Hale,
aff’d sub nom.
v.
United States
422
Attorney
States
even further
than
went
171,
2133,
U.S.
(1975)
366 however,
Now,
prosecution,
In a criminal
there
whether or not
believe the
rule of evi-
Agee’s testimony,
suggest
defendant
obvious tension between the
arid
it,
treating
dence
silence as an affirmation
you accept
that even if
he makes
privilege against self-in-
the constitutional
guilty
charged.
himself
of the crime
pros-
many years in state
crimination. For
ecutions,
Twining v. New
under the rule of
not,
he,
intentionally
Did he
when
78,
14,
Jersey,
29
do not believe
result
reviving
thing,
Hogan
here. For one
there is at
overruling Malloy
different
v.
ambiguity
sta-
least
serious
about
Jersey.
Twining v. New
to in
tus
the time of his silence referred
case, the
opinion in this
As I read its
government’s
the
cross-examination and
govern-
majority apparently agrees that
closing argument.
ev-
government’s
On the
argument
2(a) and as to the
ment’s
as to §
idence, Agee
subjected
body
to a full
inapplicability
pre-ar-
of Hale
Doyle to
immediately
stop.
search
after the traffic
rest,
It
pre-Miranda silence is mistaken.
silence,
Accordingly,
at the time of his
admits,
tacitly,
that mere silence
albeit
might
subject
have been
to constraints im-
having knowledge
another’s crime
of
officers,
posed by
thereby trig-
Similarly, it
not evidence of an offense.
is
gering
application
even the narrowest
acknowledges, again implicitly, If,
Doyle.
Hale and
at the time of his
Hale-Doyle prohibition
silence which
covers
silence, Agee
custody
was in the
administering of
precedes
and the
arrest
policemen,
warnings
the fact that Miranda
part company,
We
warnings.
Miranda
may
given
preclude
not
been
does not
then,
interpretation of the
simply over an
application
of the rule enunciated in
record,
disclos-
majority
which the
reads as
addition,
Doyle.3
Hale and
In
while the
silence,
only com-
ing
but
no comment
prosecutor’s
arguably
comments were
re-
speech
ment on
or action.
ap-
stricted to the time
frame
to the
arrest,
pellant’s
counsel’s comments
read,
fairly
I do not believe
Thus,
certainly
were
not so restricted.
un-
prosecutor’s argument at trial can be
might put
conduct of Smith’s
counsel
anything
derstood as
but an assertion
squarely
ease
within the
proscription
government
point
of the same
Doyle.
Hale and
importantly,
More
appeal
per-
advances
silence
—that
government
flatly
is
wrong
contending
having knowledge
possessory
son
of a
of-
anything
presence
turns on the
or ab-
2(a).
a crime under
It is
fense is itself
§
custody
sence of
presence
or of the
or ab-
reject
thing
majority tacitly
one
for the
warnings.
attempt
sence of Miranda
Its
quite
It
argument.
another
rely on these factors misstates the issue and
refuse to take
counsel at her
attempts
proposed exception
to treat a
making the
word about her intention in
general
applicability of the
amend-
fifth
very argument
argument
jury.
Doyle
ment as if were the rule. Hale and
appeal
majority’s
made in this
belies the
appears
are not the rule. Rather the rule
overgenerous treatment of the record.
Malloy
in fifth amendment
v.
cases like
government’s
ignoring
Besides
stated
Hogan.
Doyle simply
Hale and
refused to
examining Agee’s failure to of-
purpose in
exception
extend the Harris v. New York
remarks,
majority also
exculpatory
fer
impeaching use to silence. Neither Hale
prosecutor’s
statements
concludes that
Doyle suggests
nor
possibility
that the
words,
only
referred
actions
impeaching
substantive rather than
use of
holding, the
not to his silence. In so
contemplated
such
silence was ever
majority
not remain
Allowing
Court.
notes that
did
substantive use of silence
only
holdings
of mute when the
him.
circumvent the
encountered
Hale,
Doyle,
In his
But in
dissent
Stevens
United States
Justice
majority’s
(1975),
seemed to
we
think that
rule was
S.Ct.
45 L.Ed.2d
[95
99]
may
premised
presence
warnings.
arrest
on the
of Miranda
noted that silence at the time of
620-21,
(Stevens,
inherently ambiguous
apart
See 426
even
from the
U.S. at
suspect Doyle, remains mute. In after myopic approach Because of its to the by totally the defendant was no means niggardly reading Doyle, record and its “mute” when was interrogated he the majority, insisting the there was no Indeed, police. he stated “What’s this all silence, comment does not the address about,” deny knowledge as if to aside, whether, Doyle the Hale and n.5, underlying events. 426 in record circumstances disclosed so, prosecutor’s S.Ct. 2240. Even the com- present appropriate applica- case for an the Doyle’s protest ments failure to his inno- evidentiary equating tion of rule silence the were judged cence reversible error.4 not with affirmation. I do believe do. majority apparently recognizes The usually justified The is rule in terms of Hale-Doyle require does rule total words, expectations. In behavioral other “If . . silence. . had asked experience common human suggests that ” about,’ ‘What’s this all majority sug- people deny generally will false accusations gests, “perhaps this would abe different fully making and will facts disclose Opinion, case.” supra Why at 354. disclosures, plead- or formal as in should it be a different In case? both in- IIIA, ings. Wigmore, See Evidence § stances the speculate is asked to on the (Chadbourn 1970). hu- rev. But common significance substantive of a failure to experience man suggest does not a Where, speak.' here, government’s as illegal stopped by driver of an taxicab a are, by admission, remarks its own directed Philadelphia police officer for what substantively incriminating character thought driver was a motor vehicle viola- silence, aof defendant’s I do not see how tion, confronted, testi- according to his precise spoken defendant, words mony, knowledge the unexpected with when first encountered can be his vehicle and with contained contraband said to make a difference. inquiry an about guns drugs possession, by volunteering any would react majority also concludes that the re- more information than was volunteered transgress marks Smith’s counsel did not likely here. It seems as not that to me as Agee’s rights Doyle. Hale under It say little reaction would be as as relies, part, on the failure of possible. addition, prior In to arrest is attorney to contemporaneous objec- make a tion, likely less that a will be con- defendant as well as belief challenged its that the guilt. with fronted a formal accusation statements referred to actions and not true accusation, explained Absent such a defendant’s why silence. above these positions highly ambiguous. silence both of are For majority without merit. The reasons, sought further these the inference contends violation which drawn from silence was not sufficient- attorney have caused here was record, however, ly properly harmless. From this to be as sub- it is reliable admissible evidence, that Agee’s exculpate impeachment clear even failure to him- stantive significant apart self was government’s problems. fifth amendment Edwards, belonging person also See United States v. card whose name (5th 1978) (per curiam). Edwards, short, defendant, by initially In in- used. stopped by guard identity, effectively voking the defendant was border hav- a a false denied allegedly driving Despite ing while a stolen car. Defendant violated the law. the defendant’s initially provided word, identity “speech,” majority’s false the border sense of the police; his, identity truly regarded had that been the Fifth Circuit issue as presented. Only squarely defendant would not have been in violation the harmless error law, precluded since the car was with a in the case. rented credit doctrine reversal *19 long a right. All How prosecutor the counsel for The Court: both and Since improper refer- codefendant Smith made period will that be? Agee’s
ences to silence in cross-examination will be Mr. Turner: About one minute n sufficient. jury, judg- the argument and oral ment of conviction should not stand. you while stay We here The Court: can Agee. matters Mr. discuss with ADMO- III. THE DISTRICT COURT’S step Agee, you will Mr. Turner: Mr. ABOUT PRIVILEGE NITION THE here, please? AGAINST SELF-INCRIMINATION back which is held (A place takes Immediately Agee took the discussion after Mr. sworn, following colloquy record.) stand and was the off place: took you Mr. have had Agee, The Court: The Court: Mr. that Mr. Agee, I know have opportunity to matter I discuss the Turner, course, you that of informed has will just set forth with Mr. Turner you as a defendant have in this case your is? you tell me what decision absolutely duty compulsion testi- no or to I take the wit- The Witness: intend to fy you your have un- absolute stand, your ness Honor. the Fifth to remain si- der Amendment All right. The Court: I would jury lent and instruct the against you. could not hold that a urges likely inference Now, you do testi- understand juror him out singling would draw from ,are however, you fying, subjecting your- interrogation his such was that self, obviously, scrutiny to as the same perjuri- be either him or would incriminate any your other witness has and that testi- contends, the oth- The ous. is, course, mony my of under oath and hand, any interrogation that if the er you up question: voluntarily giving Are all, “it is enhanced likely effect at that [it] privilege, your fully understanding your credibility by the volun- emphasizing privilege testify to not the Fifth under tary testimony.” Appellee’s nature of Amendment? Brief, p. The so naive majority is not Honor, The Witness: like Your I would accept the as to contention my talk lawyer let him to finds, instead, credibility was It enhanced. explain this to so I can me more better I ver- a neutral effect. think that clearly understand this. probable juror on a is far sion of effect Very good. The I think Court: likely government’s than more either the client, your should talk to Mr. Turner. majority’s. purpose of the trial Honor, Mr. Turner: Your I would ob- remarks, view, my was far from court’s ject remarks of the believe, intended, to dis- neutral. It was I presence jury. request of the a I would courage Agee testifying. If the side bar conference. it, certainly interrogation so understood Well, just say The Court: let me questioning of prejudicial. Since such the record. It my absolute standard and since prejudicial the defendant procedure whenever takes defendant why any defendant I can think of no reason that the stand understands defendant be sub- represented able counsel should rights giving up he is so that jury, I jected presence to it in of there could be no about that and strongly disapprove practice. Even I don’t see need for a side bar confer- majority justify. ence. It is finds hard to judge may, true a trial and sometimes one, If wish to have we can should, However, one. even warn witness of his fifth I think Mr. has requested rights dangers that he like to discuss^— amendment and of cannot, warnings But he case, perjury. such request
Mr. Turner: In will recess, witness, justice tilt your to a the scales of Honor. against Texas, it, preventing defendant. Webb v. persistent See as the need to re- gentle amply sort to chastisement demon- (1972) (trial judge’s warning extended expressions disapproval strates. Bland defense discouraged witness not to lie improprieties tepid endorsements witness from testifying and denied the de- practice” “the better are no substitute for fendant the opportunity present witness- appellate judicial responsi- the exercise of *20 defense). es in his When the witness is a bility. grant I would a new trial. represented defendant who is by able coun- sel and testify who is about to on his own
behalf, the need for such warnings
seems to me Despite non-existent. its ac-
knowledgment that engaging in such inter-
rogation practice, majority bad distinguish governing
strains to case
law, giving judges blueprint thus partial holding evasion of the in Webb UNITED of America STATES v. Texas. I particularly disingenuous find majority’s distinction of Webb on the basis of an ostensible absence this case of ANTON, Savage, James B. a/k/a Steve possible perjury. reference to To what Dr. Thomas Donovan and else was the trial court referring when he Mike Nameth. “Now, warned you' do understand your is, course, . Appeal of B. James ANTON.
under oath. . . . ”? None of the No. 78-1996. given witnesses was such a warning. it, jurors understand and the Appeals, United States Court of it, undoubtedly particular understood as a Third Circuit. admonition that the defendant should resist 26, Argued March temptation perjury. commit 20, April Decided
While the majority quite bring cannot itself to endorse practice the trial court’s
warning defendants, testifying pres
ence jury, against about the privilege dangers
self-incrimination and the of false
swearing, cannot, either, bring itself to
order a Tongue new trial. clicking over practices
bad has become a familiar routine
in this g., court. E. United States v. Le
Fevre, 477, (3d 1973); F.2d 478 80 Cir. Benson, 978,
United States v. 487 F.2d (3d 1973); Somers, Cir. United States v. (3d Cir.), denied,
496 F.2d 736-42 cert.
(1974); United ex rel. Perry States v. Mulli
gan, (3d 1976), 544 F.2d 678-80 Cir. denied,
cert. 430 (1977); United States v. DeRo
sa, (3d 1977); 548 F.2d 469-72 Cir.
United Gallagher, States v. (3d 1978).
1041-43 tongue clicking Our improper
over argument by government
counsel notoriously has been ineffective in