870 F.2d 316 | 5th Cir. | 1989
Lead Opinion
We hold that the government may call to testify at trial a third-party witness called by the defendant at a pretrial suppression hearing whose testimony at that hearing was favorable to the defendant’s motion to establish standing and whose identity was not previously known to the government, but whose testimony to the same effect at trial inculpated the defendant.
I.
On July 9, 1985, James Boruff, accompanied by Russell Taylor, purchased a Chevrolet pickup truck from Ken Howell, a salesman at Jack Sherman Chevrolet in Midland, Texas. Boruff deposited $2,000 with Howell, and paid the balance with cashier’s checks bearing Taylor’s name but purchased by Boruff. Boruff registered the truck in Taylor’s name.
Several days after the purchase, Boruff drove the truck to Knoxville, Tennessee,
In November, Taylor was driving the pickup on Highway 385 near Big Bend National Park, sixty miles from the Mexican-American border, when border patrol agents stopped him and searched the truck. Upon finding 591 pounds of marijuana in the truck, the police arrested Taylor and Boruff, who had been driving a white Lincoln Continental Town Car in tandem with the truck. Both men were indicted for possessing more than 50 kilograms of marijuana with intent to distribute,
II.
Boruff and Taylor filed pretrial motions to suppress the evidence obtained as a result of the stop of the pickup truck. The district court ruled that the stop and search of the pickup truck was illegal, that the evidence obtained as a result of it was inadmissible, and that it could not, therefore, be used to convict Taylor or Boruff. This court affirmed the district court’s decision with regard to Taylor,
On remand, in response to Boruff's motion seeking to establish his standing to challenge the search of the pickup truck and seizure of the marijuana, the district court held an evidentiary hearing. Boruff testified at the hearing that he had purchased, and therefore owned, the truck that Taylor was driving on November 22. To corroborate this testimony, Boruff called three witnesses, including Ken Howell who testified about the transaction at the Jack Sherman Chevrolet dealership. The district court nonetheless held that Bo-ruff lacked standing to contest the search and seizure.
Prior to jury selection, the government announced its intention to call Howell to testify at trial. Relying on Simmons v. United States,
III.
In Simmons v. United States, the Supreme Court held
when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.5
Simmons would, of course, bar the government from calling Howell at trial if it had learned of him solely from Boruff s testimony at the suppression hearing.
The Supreme Court, in United States v. Salvucci,
Simmons rests on the premise that it is “intolerable” for a defendant to be forced to surrender “one constitutional right”— his Fifth Amendment right against self-incrimination — “in order to assert another”— his Fourth Amendment right not to be subject to unreasonable searches and seizures.
That Howell in fact testified at the pretrial hearing, permitting the government to learn both of his existence and his possible testimony, is the evidence that satisfies the government’s burden: to prove that Howell’s testimony had been “derived from a legitimate source wholly independent of the [defendant’s] compelled testimony.”
As Justice Holmes observed, a “party is privileged from [himself] producing the [incriminating] evidence, but not from its production [by others].”
For the foregoing reasons, the judgment of the district court is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.
. 21 U.S.C. § 841(a)(1).
. 21 U.S.C. § 846.
. United States v. Boruff and Taylor, 818 F.2d 863 (5th Cir.1987).
. 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
.Simmons, 390 U.S. at 394, 88 S.Ct. at 976. Cf. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), overruling in part, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
. 18 U.S.C. § 6002.
. Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1664-65, 32 L.Ed.2d 212 (1972).
. Ibid., 406 U.S. at 460, 92 S.Ct. at 1665.
. Simmons, 390 U.S. at 394, 88 S.Ct. at 976; United States v. Butts, 729 F.2d 1514, 1519 note * (5th Cir.) (en banc), cert. denied, 469 U.S. 855, 105 S.Ct. 181, 83 L.Ed.2d 115 (1984); United States v. Charles, 738 F.2d 686, 698 (5th Cir.1984).
. 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).
. Salvucci, 448 U.S. at 94, 100 S.Ct. at 2554.
. United States v. Harrison, 461 F.2d 1127 (5th Cir.), cert. denied, 409 U.S. 884, 93 S.Ct. 174, 34 L.Ed.2d 140 (1972).
. Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir.), cert. denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979).
. Davis v. Wainwright, 342 F.Supp. 39 (M.D.Fla.1971), aff’d, 469 F.2d 1405 (5th Cir.1972). Cf. United States v. Kahan, 415 U.S. 239, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974).
. United States v. Dohm, 618 F.2d 1169 (5th Cir.1980) (en banc); United States v. Dohm, 597 F.2d 535 (5th Cir.1979).
. See Butts, 729 F.2d at 1519 note *; United States v. Gomez-Diaz, 712 F.2d 949, 951 n. 1 (5th Cir.1983), cert. denied, 464 U.S. 1051, 104 S.Ct. 731, 79 L.Ed.2d 191 (1984). Cf. Salvucci, 448 U.S. at 93 n. 8, 100 S.Ct. at 2554 n. 8.
. United States v. Hernandez Camacho, 779 F.2d 227 (5th Cir.1985), cert. denied, 476 U.S. 1119, 106 S.Ct. 1981, 90 L.Ed.2d 664 (1986).
. Simmons, 88 S.Ct. at 976; see Note, Resolving Tensions Between Constitutional Rights: Use Immunity in Concurrent or Related Proceedings, 76 Col.L.R. 674 (1976).
. See e.g., Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969); Hampton v. United States, 425 U.S. 484, 490-91, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976).
. Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428-29 n. 8, 58 L.Ed.2d 387 (1978); see Bellis v. United States, 417 U.S. 85, 89-90, 94 S.Ct. 2179, 2183-84, 40 L.Ed.2d 678 (1974); Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 615-16, 34 L.Ed.2d 548 (1973); United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 1251, 88 L.Ed.2d 1542 (1944).
.See Salvucci, supra.
. Bellis, 417 U.S. at 90, 94 S.Ct. at 2184.
. Kastigar, 406 U.S. at 46, 92 S.Ct. at 1665.
. Brown v. Trigg, 791 F.2d 598, 602 (7th Cir.1986); see United States v. Ceccolini, 435 U.S. 268, 277, 98 S.Ct. 1054, 1060-61, 55 L.Ed.2d 268 (1978).
.Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919 (1913).
Rehearing
ON PETITION FOR REHEARING
In his petition for rehearing, Boruff reasserts the claims, made in his original brief and not addressed by the court in its original opinion, that the government’s use of Howell’s testimony violated Boruff’s sixth amendment right to effective assistance of counsel and his fifth amendment right to due process.
Counsel’s decision to call a witness to testify at a suppression hearing, knowing that the government may thereby learn of his existence and call him to testify at trial, is a matter of trial strategy, and does not render his assistance ineffective.
The petition for rehearing is, therefore, DENIED.
. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. Watts v. Indiana, 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed.2d 1801 (1949).
.Id. at 54, 69 S.Ct. at 1350.