UNITED STATES of America, Appellee v. Opio MOORE, Appellant.
Nos. 93-3158, 96-3046.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 8, 1996. Decided Jan. 7, 1997.
104 F.3d 377
Roy W. McLeese, III, Assistant U.S. Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher and Steven E. Rindner, Assistant U.S. Attorneys, were on the brief.
Before: SILBERMAN, SENTELLE and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Separate concurring opinion filed by Circuit Judge SILBERMAN.
Separate concurring opinion filed by Circuit Judge TATEL.
SENTELLE, Circuit Judge:
Opio Moore appeals from convictions for (1) unlawful possession with intent to distribute cocaine in violation of
I. BACKGROUND
On December 30, 1992, at approximately 1:20 a.m., Officer Christopher Sanders of the Metropolitan Police Department (“MPD“) observed a Buick containing three individuals moving eastbound on H Street, N.W., at a high rate of speed. The car passed through several red lights without stopping. Officer Sanders pursued the car and signaled for it to stop. When the car came to a stop, Sanders, who was alone on patrol, approached the car and ordered the driver, Opio Moore, to exit the vehicle. Moore exited the car and raised his hands in the air. Sanders noticed a dark object under Moore‘s armpit. Suspecting that this object was a gun, the officer conducted a protective frisk for weapons. The frisk revealed that Moore was wearing an empty shoulder holster and a bullet-proof vest. At this time Officer Sanders noticed several bullet holes in the front of the car. Additional police officers soon arrived on the scene. The officers removed Daniel Armstead, a rear-seat passenger, from the car and frisked him. He too was wearing a bullet-proof vest. A frisk of the third occupant of the car disclosed nothing.
Moore produced a driver‘s license and registration. The registration revealed that Moore was the owner of the car. After Moore agreed to a search of the car, officers discovered a loaded 9-millimeter semiautomatic pistol, a loaded .45-caliber semiautomatic pistol, a loaded .38-caliber revolver, a large quantity of cocaine, and a roll of duct tape in the engine compartment. Except for the roll of duct tape, these items were positioned around the car‘s battery. The duct tape was by the windshield on the driver‘s side. The 9-millimeter and the .45-caliber handguns each fit the shoulder holster worn by Moore.
The government prosecuted Moore and Armstead in a joint trial. On April 20, 1993, the jury returned its verdict, finding Moore guilty on all counts. It was unable to reach a verdict on the charges against Armstead. The judge declared a mistrial as to Armstead. Moore appeals from his conviction raising numerous points of error which we consider in turn.
II. ANALYSIS
A. Conviction Under 18 U.S.C. § 924(c)
Moore was convicted of “us[ing] or carr[ying] a firearm” during a “drug trafficking crime” in violation of
B. Sufficiency of the Evidence
Moore further argues that his other convictions must be overturned for lack of sufficient evidence of possession (of either firearms or drugs), a requisite element of each of the charged crimes. In considering a sufficiency of the evidence claim, we review “the evidence de novo, in [the] light most favor-able to the Government in order to deter
Criminal possession of firearms or drugs may be either actual or constructive. United States v. Raper, 676 F.2d 841, 847 (D.C.Cir.1982). Constructive possession exists when “the defendant knew of, and was in a position to exercise dominion and control over, the contraband.” United States v. Byfield, 928 F.2d 1163, 1166 (D.C.Cir.1991). While mere proximity to drugs or guns is not sufficient to establish possession, see United States v. Lucas, 67 F.3d 956, 960 (D.C.Cir.1995), “evidence of some other factor—including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise—coupled with proximity may” suffice, United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990).
The evidence in this case was more than sufficient to support the jury‘s conclusion that Moore was in possession of the drugs and firearms found under the hood of his car. Moore was driving an automobile registered in his name. He was wearing a bullet-proof vest and an empty shoulder holster. There were three handguns concealed in the car, two of which fit into the shoulder holster Moore was wearing. These handguns were found under the hood lying near a bag filled with cocaine. In addition, the officers found a roll of duct tape under the hood. At trial, a government drug expert testified that these facts give rise to the inference that “some individuals are involved in a drug operation.”
Of course, the mere fact that three handguns were found in Moore‘s car is insufficient to establish possession. However, the presence of the guns in a car owned and operated by Moore coupled with the fact that two of the guns fit the shoulder holster worn by Moore suggests that he knew of and exercised control over the guns. The fact that Moore was driving a bullet-riddled car and wearing a bullet-proof vest strengthens the inference. Moore‘s connection to the guns suggests possession of the drugs found next to the guns and in Moore‘s car. See United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988) (holding that a defendant‘s connection to a “tool of the narcotic trade“—in that case a gun—suggests that the defendant exercised control over drugs found in the same locale). In sum, the evidence of possession, though circumstantial, was strong.
Moore complains that his conviction was obtained without “smoking gun” evidence. This claim is frivolous. We have long held that the government need not produce a “smoking gun” to obtain a conviction. See United States v. Poston, 902 F.2d 90, 94 n. 4 (D.C.Cir.1990) (holding that “[t]here is no requirement of any direct evidence against the defendant“); United States v. Torres, 901 F.2d 205, 224 (2d Cir.) (holding that a “smoking gun” is unnecessary to sustain a conviction against a sufficiency of the evidence claim), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990); United States v. Kaplan, 832 F.2d 676, 679 (1st Cir.1987) (“For us to sustain the jury‘s determinations we need not find a ‘smoking gun.’ “), cert. denied, 485 U.S. 907, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988). Indeed, the doctrine of constructive possession necessarily belies Moore‘s implicit claim that he could be convicted only if caught “red-handed.” We therefore reject Moore‘s claim that the evidence was insufficient to convict.
C. Severance
1. Felon-in-possession Charge
Moore next argues that the district court erred in failing to sever his charge of possession of a firearm by a convicted felon from the other counts of his indictment.
A district court‘s ruling on a properly filed motion to sever charges is subject to appellate review, albeit only for abuse of discretion. United States v. Dockery, 955 F.2d at 54. In this case, however, Moore failed to file a severance motion with the district court or request that other measures be taken to minimize the prejudice from the joinder of the
Relying on our opinion in Dockery, Moore argues that the failure to sever the felon-in-possession charge in this case unfairly prejudiced his right to a fair trial because his otherwise inadmissible prior conviction “was continually presented to the jury throughout the trial.” The government responds that, under Dockery, any unfair prejudice to Moore was eliminated by the fact that the prosecutor stipulated to the existence of Moore‘s prior felony conviction and “did not mention the specific nature of the underlying felony conviction to the jury” at any time during trial. But we did not hold in Dockery that a prosecutor may refer to the existence of a defendant‘s prior felony conviction with impunity so long as he does not mention its specific nature. Indeed, the specific nature of the underlying felony was not put before the jury in Dockery. See 955 F.2d at 56 n. 5. We nonetheless held that the government‘s “repeated[ ]” references to the defendant‘s prior conviction during trial constituted “undue prejudice.” Id. at 50-51.
Dockery stands for the proposition that a stipulation may reduce the prejudice flowing from the joinder of a felon-in-possession charge, id. at 54, but a defendant may nonetheless be unduly prejudiced by repeated and gratuitous references to the existence of the previous conviction, see id. at 56. The question then is whether the references to the previous conviction were legitimate or gratuitous. See id.; cf. United States v. Myles, 96 F.3d at 497 (asking whether references to the specific “nature of the predicate offense” were legitimate or “gratuitous“). In this case we hold that all the government‘s references were legitimate.
Moore notes that the existence of his previous conviction was repeated to the jury five times. Our opinion in United States v. Myles makes clear that three of these references were entirely proper. The first reference to Moore‘s previous conviction occurred when, prior to trial, the district court read the indictment containing the felon-in-possession charge to the jury. We held in Myles that it is appropriate for a judge to read the indictment to the jury even if the jury is thereby informed of the existence of a defendant‘s prior felony conviction. Id. at 496. The second reference to Moore‘s previous conviction occurred during the government‘s
2. Co-defendant
As with joined charges, a court “may” sever joined defendants “[i]f it appears that a defendant . . . is prejudiced by joinder of . . . defendants . . . for trial together.”
Moore asserts that severance was required in this case because it presented the “classic case of irreconcilability“—“one co-defendant pointing the accusing finger directly at the other.” The parties dispute whether Moore preserved this issue for appeal. Only Armstead filed a pre-trial motion for severance. Moore, however, argues that this motion should be attributed to him based on an agreement between the parties and the court that all defense “objections” be deemed jointly made. But the agreement applied only to “objections,” not motions, for the stated purpose of eliminating the need “for both [defendants] to stand[ ] up and say[ ] we join.” Moreover, even were we to attribute Armstead‘s severance motion to Moore, the motion did not raise “irreconcilable defenses” as a basis for severance. A party is precluded from raising on appeal a basis for severance not made at trial in the severance motion. Cf. United States v. Johnson, 802 F.2d 1459, 1465 (D.C.Cir.1986) (holding that a defendant waives “any legal objections not actually articulated at trial“). The only basis for severance asserted in Armstead‘s motion was that a joint trial prevented him from calling his co-defendant, Moore, to testify. Moore cannot now object to the district court‘s failure to sever on the ground of “irreconcilable defenses.”
Alternatively, Moore contends that his mid-trial request for severance preserved the “irreconcilable defenses” issue for appeal. We disagree.
Moore maintains that severance was required in this case because he and Armstead planned to point the accusing finger at one another at trial. The Supreme Court rejected a similar argument in Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993), where four defendants asserted that severance was necessary because they each “claim[ed] they [were] innocent and each accuse[d] the other of the crime.” The Supreme Court held that sever-
Under Zafiro, the mere fact that Moore and his co-defendant intended to and did point the accusing finger at one another during the joint trial does not require that their trials be severed. Therefore, the district court did not err, much less plainly err, in failing to sever the trials.
D. Expert Testimony
During the government‘s case-in-chief, Detective Tyrone Thomas of the MPD testified as an expert in the use and trafficking of narcotics. He testified, over Moore‘s objection, that duct tape such as that found under the hood of Moore‘s car is often used “by people in the drug world to bind hands, legs, and mouths of people who are either being robbed in the drug world or who need to be maintained.” Moore argues that the district court erred in permitting this testimony. But
Moore argues that even if the expert testimony was “helpful” to the jury, it should have been excluded under
E. Prosecutorial Misconduct
Moore alleges that he was unfairly prejudiced by several improper prosecutorial remarks. Three of these remarks warrant discussion.
1. Comment on Defendant‘s Silence
Moore raises a colorable claim of improper prosecutorial comment on his post-arrest silence. During the direct examination of Officer Sanders, the prosecutor asked the officer if the defendants said anything when the guns and drugs were found under the hood of the car. Defense counsel did not object to this question, and the officer answered “No.” Then, during closing argument, the prosecutor argued to the jury that if Moore “did not know the stuff was underneath the hood, [he] would at least look surprised. [He] would at least [have] said, ‘Well, I didn‘t know it was there.‘” Defense counsel objected to this line of argument. The judge called the attorneys to the bench. Armstead‘s counsel stated that she believed the prosecutor was improperly “comment[ing] on post-arrest silence.” The prosecutor stated that he had not done so. The court agreed with defense counsel, but nevertheless overruled the objection.
Our separately concurring colleague denies that appellant asserted his in-custody status. However, both in the trial court at the bench conference and twice in the brief on appeal, the defense counsel referred to the prosecution‘s improper use of “post-arrest” silence. To hold this insufficient to bring the subject before the court seems to us to split the hair far too finely. In any event, the trial judge obviously understood that the issue of post-arrest silence was before him as counsel for the two sides briefly argued the subject. Indeed, counsel for the co-defendant expressly stated, “Your Honor, it is completely improper for him to comment on post-arrest silence.”1
Our colleague supposes that our opinion “stands for the proposition that a party need not assume the burden to prove facts relevant to a legal argument [on appeal].” The trial judge at the point when the question was raised ruled that the prosecuting attorney had done precisely what the defense attorney accused him of. The judge‘s statement “I think you did that,” is not, as our colleague suggests, ambiguous. The referent of the pronoun “that” is clearly the last preceding “accusation” denied by the prosecution—that is, “commenting on post-arrest silence.” Plainly, therefore, the trial judge accepted the defense‘s proposition that the prosecutor had commented on post-arrest pre-trial silence. It is not readily apparent what more the defense attorney needed to, or indeed could have done to preserve the question on the present record.
The
Therefore, nothing else appearing, the prosecution‘s use of Moore‘s pre-trial silence in its summation violated his
In Doyle, the prosecution had impeached the defendant at trial by cross-examining him about his failure to have told his exculpatory story “after receiving Miranda warnings at the time of his arrest.” Id. at 611, 96 S.Ct. at 2241. The majority held that the silence could not be used even for impeachment purposes because, “while . . . the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings.” Id. at 618, 96 S.Ct. at 2245. It would, the Court held, therefore be “fundamentally unfair and a deprivation of due process” to allow the use of the warned arrestee‘s silence to be used even for impeaching an explanation first offered at trial.
In the present case, the government, on appeal and apparently at trial, relies on a fundamental misunderstanding of the Doyle decision. The prosecution argues that that decision stands for the proposition that “the use at trial of a defendant‘s ‘silence at the time of arrest and after receiving Miranda warnings, violate[s] the due process clause of the
Neither Doyle nor any other case stands for the proposition advanced by the prosecution that the defendant‘s silence can be used against him so long as he has not received his Miranda warnings. Logically, none could.
It simply cannot be the case that a citizen‘s protection against self-incrimination only attaches when officers recite a certain litany of his rights. The Supreme Court‘s purpose in requiring the arresting authorities to advise a defendant of his right to silence and counsel in Miranda was to assure that those rights were properly safeguarded before any statements he made could be used against him, not his silence. See Miranda, 384 U.S. at 467-79, 86 S.Ct. at 1624-30.4 To hold, as the Government contends the Supreme Court did in Doyle, that the failure to give those same warnings permits the state to use a defendant‘s silence against him turns a whole realm of constitutional protection on its head.
The Doyle majority noted that even “the State does not suggest petitioners’ silence could be used as evidence of guilt[.] [I]t contends that the need to present to the jury all information relevant to the truth of petitioners’ exculpatory story fully justifies the cross-examination that is at issue.” 426 U.S. at 617, 96 S.Ct. at 2244. The dissent, which did not accept the estoppel theory and would have upheld the use of the silence for impeachment, nonetheless recognized that “as long ago as Raffel v. United States, 271 U.S. 494 [46 S.Ct. 566], this Court recognized the distinction between the prosecution‘s affirmative use of the defendant‘s prior silence and the use of prior silence for impeachment purposes.” 426 U.S. at 628, 96 S.Ct. at 2249 (Stevens, J., dissenting). In short, all the justices recognized the general rule and the impeachment exception. A minority would not have recognized the exception to the exception. Our colleague‘s assertion that in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), “the Supreme Court agreed with precisely the position espoused by the government here” is simply incorrect. Fletcher did not in any sense involve the use of a defendant‘s silence as bearing upon his guilt. Fletcher, like Doyle, was an impeachment case. As our colleague correctly notes, the Supreme Court held that Doyle did not apply, because Miranda warnings had not been offered. We have no doubt that this is controlling law in the case of the use of silence for impeachment. The present case is not an impeachment case, and neither Doyle nor Fletcher has anything to do with it. Therefore the prosecution‘s use of appellant‘s silence in its jury argument violated his rights under the
The government contends that we should find such a factor permitting the use of the silence in the fact that the silence to which the prosecutor referred occurred before Moore was placed under arrest. Regardless of whether or not we would agree with the government that the Griffin/Doyle exclusion does not apply to pre-arrest silence, the record does not support that argument in this case. Here the prosecutor relied on the silence of a defendant in custody. The silence of an arrested defendant, under Griffin, is an exercise of his
A defendant might cite Jenkins v. Anderson, supra, for the proposition that the Griffin protection extends to pre-arrest silence. That case upheld “impeachment by use of pre-arrest silence,” 447 U.S. at 240, 100 S.Ct. at 2130, against a
Our concurring colleague questions what “unsettled” law we are referencing. We would refer him to the Jenkins opinion, 447 U.S. 231, 236 n. 2, 100 S.Ct. 2124, 2128 n. 2, 65 L.Ed.2d 86: “Our decision today does not consider whether or under what circumstances pre-arrest silence may be protected by the
Our colleague questions “how the reasoning in Jenkins would be any different in a situation in which a prosecutor attempts to use a defendant‘s silence as probative of his or her guilt.” [Concurrence at 9.] We did not feel compelled to explain how it would be different since it is not apparent how it would be similar. The Jenkins Court relied entirely on the impeachment rationale drawn from Doyle and never in any fashion held, implied, or reasoned that the defendant‘s silence could have been used to establish his guilt. Indeed, the Court expressly “h[e]ld that impeachment by use of prearrest silence does not violate the
The Court clearly delineated the impeachment exception to evidence that would otherwise be a burden upon
In light of the Supreme Court‘s silence on that subject, the government‘s argument for a pre-arrest exception to the Griffin exclusion is surely made in good faith, but the record does not require that we address it. The prosecutor‘s comment to the jury is at least ambiguous as to when the silence occurred in relation to the arrest of Moore and his co-defendant. The record is not absolutely clear as to when Moore was placed under arrest, either on the multiple and relatively serious traffic offenses or on the drug and weapons offenses. However, the critical
To summarize, the law is plain that the prosecution cannot, consistent with the Con-
stitution, use a defendant‘s silence against him as evidence of his guilt. The prosecution may, however, use his silence for impeachment if he testifies. Even as to impeachment, the prosecution may not use the silence after the defendant is warned of his Miranda rights. There may be another exception to the bar against the use of silence where the silence occurred before the defendant‘s arrest. Neither exception applies in this case as Moore did not testify and the record does not support the proposition that the prosecution was referring to pre-arrest silence. Therefore, Moore is correct that the prosecutor‘s comment on his pre-trial silence violated his constitutional rights.
We therefore must reverse Moore‘s conviction unless we determine that the prosecution‘s error was harmless beyond a reasonable doubt. Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 1717-18, 123 L.Ed.2d 353 (1993) (holding that Doyle errors are subject to Chapman harmless error analysis which asks whether the error was harmless beyond a reasonable doubt). The prosecutor‘s statement was an allusion to evidence of Moore‘s silence which came in without objection. The jury was thus already aware of the silence at the time Moore objected to the prosecutor‘s reference to such in closing argument. Hence, the reference to Moore‘s silence in closing argument created little if any additional prejudice. It
2. Inflammatory Reference to Defendant
In his opening statement, the prosecutor referred to the defendants as “two armed gunmen driving through the streets of D.C., armed to the teeth, dressed for action, carrying a load of dope. . . .” Moore argues that this was both a misstatement of the facts and inflammatory. Though Moore did not object to this statement at trial, Armstead did. Given the district court‘s ruling that the objections of one defendant would be considered jointly made, Armstead‘s objection is attributable to Moore. United States v. Gatling, 96 F.3d 1511, 1521 (D.C.Cir.1996) (“Trial court judges have discretion to determine whether each defendant must individually object or whether objections raised by one defendant will count as having been raised for all similarly situated defendants.“). Nevertheless, the argument is of no avail.
While “the government must take care to ensure that statements made in opening and closing arguments to the jury are supported by evidence introduced at trial,” United States v. Small, 74 F.3d 1276, 1280 (D.C.Cir.), cert. denied, 517 U.S. 1229, 116 S.Ct. 1867, 134 L.Ed.2d 965 (1996), the government‘s statement here was amply supported by evidence. The evidence at trial established that, at the time of his arrest, Moore was wearing a bullet-proof vest and shoulder holster (i.e., “dressed for action“) and was carrying three handguns (i.e., “armed to the teeth“) and 184 bags of cocaine (i.e., “carrying a load of dope“) under the hood of his car. The prosecutor‘s statement, supported by evidence, was not improper. United States v. Perholtz, 842 F.2d 343, 360 (D.C.Cir.), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988).
3. Disparagement of Defense Counsel
Moore further maintains that certain comments made by the prosecutor in his closing argument improperly disparaged both defense counsel and the judicial system. Because Moore did not object to these statements as trial, we review only for “plain error.” United States v. Williams-Davis, 90 F.3d 490, 507 (D.C.Cir.1996). Under the plain error standard of review, we will reverse only if the error was both “plain’ or ‘obvious’ under current law” and prejudicial. United States v. Fennell, 53 F.3d at 1301.
One of the defining characteristics of our system of justice is that criminal trials are adversary proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 789, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973). Vigorous representation is of paramount importance in such a system, for the “system is premised on the well-tested principle that the truth—as well as fairness—is best discovered by powerful statements on both sides of the question.” Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 352, 102 L.Ed.2d 300 (1988). As a result, we have held that prosecutorial “attacks on opposing counsel are inappropriate.” United States v. Childress, 58 F.3d 693, 716 (D.C.Cir.1995), cert. denied, 516 U.S. 1098, 116 S.Ct. 825, 133 L.Ed.2d 768 (1996). Extending this principle, at least one other circuit has held that prosecutorial argument “casting suspicion not merely on a defense possibly employed by the defendant but on the role of defense counsel in general” is improper. United States v. Boldt, 929 F.2d 35, 40 (1st Cir.1991); cf. United States v. Catlett, 97 F.3d 565, 572-73 (D.C.Cir.1996) (finding no error where prosecutor referred to defense counsel‘s closing as a “divert their attention while the thieves get away“-type argument). We agree.
In the government‘s closing argument in this case, the prosecutor referred to Moore‘s attorney as a “professional arguer[]” who “mucks up” the “judicial system.” Although the prosecutor‘s statement could have been construed as a disparagement of the defense attorney and indeed of the role of defense counsel in general, that was not the only possible construction of the argument,
Moore complains that several other statements made by the prosecutor in his closing argument were also improper. These other statements were so plainly not improper that they do not warrant discussion.
F. Ineffective Assistance of Counsel
Finally, Moore alleges ineffectiveness of his trial counsel. To prevail on a claim of ineffective assistance of counsel, a defendant “must prove both incompetence and prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986). In order to establish that counsel‘s performance was incompetent, a defendant must demonstrate “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Prejudice exists if “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068.
Appellant first claims that defense counsel failed to “investigate [the] case [and] contact or subpoena trial witnesses who could have established Appellant‘s innocence.” Even had he located these witnesses, the testimony they allegedly would have provided was tangential at best. That the witness would testify as to Moore‘s legitimate reasons for wearing a shoulder holster and bullet-proof vest seems incredible. Further, the fact that a few people could testify that they never saw Moore place drugs under his hood is of little value. Perhaps the only testimony that might have been helpful to Moore was that “other people regularly drove Appellant‘s car.” Cf. United States v. Thorne, 997 F.2d 1504, 1510 (D.C.Cir.) (holding that the fact that four other people shared an apartment with defendant rebutted inference that he was in possession of drugs found in proximity with him), cert. denied, 510 U.S. 999, 114 S.Ct. 568, 126 L.Ed.2d 467 (1993). However, even had this testimony been offered to the jury, the evidence connecting Moore to the drugs was so strong as to render any error by defense counsel harmless.
Appellant also claims that defense counsel was ineffective in failing to take some action to minimize the prejudice from the joinder of the felon-in-possession charge. Because we earlier concluded that severance of defendants was not required, defense counsel‘s failure to so move cannot constitute ineffectiveness. Appellant‘s other allegations of ineffectiveness by defense counsel appear to be nothing more than attempts to second guess counsel‘s trial strategy.
III. CONCLUSION
For the foregoing reasons, we affirm Moore‘s convictions for possession of cocaine with an intent to distribute, possession of a firearm by a convicted felon, possession of an unregistered firearm, and possession of unregistered ammunition. Although we find that the prosecutor‘s reference to Moore‘s post-arrest silence was constitutionally improper, we are convinced that this error was harmless beyond a reasonable doubt. In addition, we reverse Moore‘s conviction under
SILBERMAN, Circuit Judge, concurring:
I would affirm Moore‘s conviction. I do not join the majority opinion, because I think its crucial holding—that the district judge erroneously permitted the prosecutor to use appellant‘s silence “post custody“—is both an impermissible appellate factual finding and an unjustified extension of constitutional law. The distinction drawn by the majority between the use of silence versus statements
Appellant urges us to conclude that he was denied a fair trial because of the prosecutor‘s “improper comments on [his] post-arrest silence.” Counsel objected to the prosecutor‘s closing argument reference to appellant‘s silence when the guns and drugs were discovered, but he did not object when the testimony as to appellant‘s silence was adduced, so I do not see why appellant did not waive the point altogether. But, in any event, aside from counsel‘s conclusory statement, appellant points to absolutely nothing to establish that the silence took place post-arrest or even while Moore was “in custody.” Appellant‘s brief contains not a single mention of the factual context in which the silence occurred, much less an argument or citation to the record. The government, for its part, understandably treats the silence to which Moore refers as having taken place pre-arrest, noting that appellant had not yet been given Miranda warnings. And at oral argument we, along with counsel, focused on the possible limitation on the prosecutor‘s use of a defendant‘s pre-arrest silence.
The majority takes from this presentation the rather startling conclusion—not argued by appellant and certainly not shown—“that Moore was in custody” at the time of his commented upon silence and therefore his silence cannot be used against him. Of course, it is the appellant‘s burden to establish factually that he was in custody as a pre-condition to an argument that the Constitution protects his silence in that situa
Defense Counsel: . . . It is completely improper for him to comment on post-arrest silence.
Prosecutor: Your honor, there is no proof after arrest that—that is a mischaracterization any how of what was going on. . . .
The Court: Well, the objection is overruled, but I think you did that.
(Emphasis added.) Whatever the judge meant by “that,” it was certainly not a finding that appellant was in custody. I suppose, then, that the majority opinion stands for the proposition that a party need not assume the burden to prove facts relevant to a legal argument that an appellate court develops sua sponte (but I certainly hope not).
Turning to the majority‘s own custody “finding” and its
relying on Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). But the free-to-leave test is one drawn from
Berkemer hardly suggests that on the facts with which we are presented we should conclude that appellant was in “custody” for
[N]othing in the record indicates that respondent should have been given Miranda warnings at any point prior to the time [the trooper] placed him under arrest. . . . And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest.
Id. at 441, 104 S.Ct. at 3151 (emphases added). The court more generally observed that “[t]he . . . noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.” Id. at 440, 104 S.Ct. at 3150.
The majority ignores Berkemer‘s presumption that traffic stops are non-custodial and offers nothing to distinguish this case from the factors the Court thought critical in reaching its holding. The Berkemer Court emphasized the relatively temporary and brief nature of traffic stops—a far cry from station house interrogation, which frequently is prolonged, and, unlike the traffic stop, police-dominated and not in view of the public. Id. at 438-39, 104 S.Ct. at 3149-50. Yet no mention is made in the majority‘s opinion of the time that elapsed, the number of officers present, or the flow of traffic in the area.
By holding that, for
It is simply impossible to understand why the Constitution should be read as permitting a prosecutor to produce evidence that a defendant in this situation sua sponte admitted that the drugs and guns were his but not that he remained silent under circumstances where an innocent man would surely have said or done something reflecting shocked surprise. Suppose, for instance, the defendant had shrugged his shoulders in a gesture indicating defeated resignation? Would not that evidence be at least constitutionally admissible?3 In any one of these situations, the defendant‘s behavior is a form of communication that shows guilty knowledge. In that respect, silence can be just as probative as a statement and, absent coercion or deception, there can be no plausible constitutional bar to its admission.
The majority‘s suggestion that my understanding of the Constitution creates “an incentive for arresting officers to delay interrogation in order to create an intervening ‘silence’ that could then be used against the defendant,” Maj. Op. at 385, seems rather far-fetched. It is hard to imagine in a true custodial (virtual arrest) situation police officers remaining silent for some period of time; but if they did so, surely it would be to induce the defendant to speak, not to remain silent, and under the majority‘s rationale, paradoxically, such a statement would be admissible. Indeed, if it were not admissible, that could only be because a lengthy police silence in such circumstances could be thought to be an effort to circumvent Miranda. But that just makes clear
my fundamental point that it is only after a Miranda warning, or at the very minimum, the time that a Miranda warning should have been given, see infra n. 4, that a defendant‘s silence could be thought protected. It is obvious that in this case the Miranda warning could not possibly have been given in the split second between the discovery of the guns and drugs and defendant‘s observed silence.
It would appear that the majority‘s new found “rule” stems from its reading of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and Miranda (and its progeny), Maj. Op. at 385, but nothing in those cases supports, let alone establishes, such a principle. The Supreme Court in Griffin held that a prosecutor could not comment on a defendant‘s failure to testify at trial because that would penalize the defendant‘s right not to be a witness against himself. Griffin thus bars commenting on a particular type of defendant silence—failure to testify at trial—which is certainly not the sweeping prohibition that the majority reads it to be. Maj. Op. at 385. It applies within the courthouse walls and no further. A defendant‘s silence before trial would be fair game (constitutionally speaking) for a prosecutor were Griffin the only barrier. And Miranda, as we have noted, only established that warnings must be given to an individual when subjected to custodial interrogation. See 384 U.S. at 477, 86 S.Ct. at 1629.
In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), however, the Court imposed a bar against using a defendant‘s silence following Miranda warnings, but—and this is analytically important—not on self-incrimination grounds. Doyle was explicitly limited to due process considerations, see Wainwright v. Greenfield, 474 U.S. 284, 291 n. 7, 106 S.Ct. 634, 639 n. 7, 88 L.Ed.2d 623 (1986), a point that seems lost, as Judge
The majority nevertheless chastises the government for turning “a whole realm of constitutional protection on its head” by suggesting Doyle was limited to post-Miranda warning situations. Maj. Op. at 386. Yet in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam), the Supreme Court agreed with precisely the position espoused by the government here and flatly rejected the reasoning offered by my colleagues. The Court refined Doyle by noting that the prosecutor‘s impeachment use of post-arrest silence absent Miranda warnings does not implicate due process considerations; the unfairness that concerned the Court in Doyle resulted from the “affirmative assurances embodied in the Miranda warnings.” Id. at 607, 102 S.Ct. at 1312. Contrary to the majority‘s view, see Maj. Op. at 386, Doyle was strictly limited to situations involving explicit assurances.5
The majority dismisses Weir and Doyle because in those cases the government had used a defendant‘s silence to impeach his testimony, and, therefore, it is claimed that they simply do not bear on the question whether a defendant‘s silence can be used as part of the government‘s affirmative case. To be sure, evidence which is used only for impeachment will, at times, be treated differently than if it were used when a defendant does not testify. See, e.g., Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). But the majority does not and cannot explain why the logic of Doyle and Weir is cabined to impeachment. The majority stands only on
its general rule. See Maj. Op. at 386-88. A close look at the cases upon which my colleagues rely, however, reveals that the “rule” is, in fact, a creature of the majority‘s own making, and the reasoning of Doyle and Weir cannot be limited.
This same flawed analysis drives Judge Sentelle‘s treatment of pre-arrest, non-custodial silence as well (which Judge Tatel does not join)—a discussion that is all the more troubling because it is completely irrelevant to the determination that the silence at issue here took place after the defendant was in custody. He speaks of the applicability of the
[N]o governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case.
447 U.S. at 240, 100 S.Ct. at 2130. Again, Judge Sentelle, whether speaking for himself or the majority, does not—nor indeed could he—explain how the reasoning in Jenkins would be any different in a situation in which a prosecutor attempts to use a defendant‘s silence as probative of his or her guilt. We are simply left with the unpersuasive refer-
* * * *
The majority‘s discussion of the prosecutor‘s remarks concerning defense counsel, Maj. Op. at 390-91, apparently rests on a misunderstanding of the record. The prosecutor did not actually accuse defense counsel of being a professional arguer who mucks up the judicial system. Although I very much doubt that even such an accusation could fall over the line, see United States v. Catlett, 97 F.3d 565, 572-73 (D.C.Cir.1996), what he in fact said was:
Remember at the beginning you took an oath that said that you will, in fact, render a verdict based solely on the evidence. And then we—I mean the judicial system, not anybody in the courtroom—we muck it up by allowing the professional arguers, including myself, to come in here and tell you what you should say, tell you what the evidence shows. . . . Your good judgment has gotten you where you are today. It is the good judgment that we want you to rely upon.
(Emphases added.)
Unless we are required to punish counsel for spreading calumnies about lawyers generally, see, e.g., Editorial, Hold the Humor Harmless, L.A. DAILY NEWS, July 7, 1993, at N10 (commenting on the remarks of California Bar Association President, Harvey Saferstein, who likened lawyer-bashing jokes to hate-speech), I do not see how it can be even suggested that this statement is improper.6
* * * *
The majority‘s opinion, redolent of the “Warren Court,” is clothed, presumably, in non-reviewability, since the use of silence is deemed harmless. That is most unfortunate, but I rather doubt this holding, when fol-
lowed as it must be in other cases, will be long-lived.
TATEL, Circuit Judge, concurring:
I agree that the prosecution‘s use of Moore‘s post-custodial silence violated his
tains. Compare Maj. Op. at 383-84. Co-defendants in a criminal trial often have divergent interests from one another. I would, therefore, require each defendant to make his own motion for severance to the trial court.