*1 ruling рro- expressly prospective As this upon the federal constitu- based which were is of crit- majority opinion correctly mulgated It also 552a. tion and 5 U.S.C. § of the Crimi- importance Har- ical Officers against law claims the state dismissed whether it System, nal Justice plaintiff has stated Although the din. rather than disposed by panel 1985(1),each should be appel- claim under 42 U.S.C. § the full Court. Accord- complete defense. possesses lee ingly, judgment court is of the district
AFFIRMED. Jr., EDWARDS, CLIFTON
GEORGE Judge, concurring.
Circuit opinion for the Judge
I concur in Contie’s note that separately only I write
court. rea accept I would the First Amendment America, STATES of UNITED in v. United soning Stern Plaintiff-Appellee, 1329, 1342-43 Inc., Gypsum, 547 F.2d States denied, Cir.1977), (7th cert. L.Ed.2d 467 as alterna CROWDER, Lewis Randall ground support tive of the conclusion Defendant-Appellant. Judge set forth in V. of Contie’s Section No. 81-5186. opinion. Appeals,
United States Court Sixth Circuit. MOYNAHAN, Judge, Distriсt con- Chief curring part dissenting part. 20, 1983. Argued June Judge I concur result reached 13, 1983. Decided Oct. opinion, por- Contie’s but dissent from that defendant, tion thereof which holds that the
Hardin, was not entitled to claim absolute 1985(1) with the
immunity connection §
claim. subjecting
I am convinced that the Unit- Attorney potential liability
ed States complaints regarding the actions
relaying Deputy Attorney
of his Assistant to a Gen- is a dangerous precedent repre-
eral powers
sents a serious erosion of the
responsibilities of the United Attor- States
ney. disposi-
I am further convinced that such provoke
tion of this case well extensive
litigation and diversion of the necessitate
Prosecutor’s efforts from duties defending against
office to himself baseless by disgruntled employees.
suits nothing
I find in the cases cited Harlow v. Fitz-
majority opinion, including
gerald, 457 (1982) against which militates
this conclusion. *2 Osborne, Osborne,
Thomas L. argued, Fletcher, Paducah, Deatherage Ky., & defendant-appellant. Taft, P. Atty.,
Alexander Alan E. Sears, Louisville, argued, Atty., Asst. U.S. Ky., plaintiff-appellee. LIVELY, Judge,
Before Chief ED- WARDS, ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, CONTIE, JONES, KRUPANSKY, WELLFORD, Circuit PECK, Judges, Judge. Senior Circuit LIVELY, Judge. Chief A panel of this court reversed Crowder’s conviction on two counts of interstate vehicle, transportation of a motor knowing (18 2312), it to have been stolen U.S.C. § receiving, and two counts of concealing and storing moving a motor vehicle in interstate commerce, it knowing to have been stolen (18 2313), 691 U.S.C. F.2d 280. The § a pеtition filed for rehearing, with a suggestion that the case be reheard en banc. Rules 40 and F.R.A.P. This court granted petition for rehearing and directed that the case be reheard en banc. The effect of this action the court was to vacate previous opinion judgment of this court and the case to restore pending docket as a Rule appeal. Rules of the Sixth Circuit. The court received supplemental parties briefs from the heard argument, additional oral after which the case was submitted for decision. We now affirm the judgment of district court.
I.
A. Two pieces equipment, of construction dump truck and a front end loader mounted trailer, on a were stolen from a work site in Holland, South Illinois between June 28 and July 1980. The owner testified that equipment was job last seen at the at about noon on June and was Saturday, dis- missing Tuesday, covered at 7:00 a.m. on July 1. The stolen was recov- Officer, by Kentucky ered Police State the stolen 1, his arrest in connection p.m. 1:30 Curry, at about Darrell the FBI of- went to Muhlenberg County, equipment. Ken- in a rural area of agent advised Crow- day. trailer were stuck fice the next truck and tucky. The and Crowder appeared his constitutional ditch. Randall Crowder der of ditch, truck out of wish to discuss he did not charge getting stated that ap- When helping. man to stand with another he wished charges; *3 said Curry, Crowder by Trooper police. the state proached made to he had out. helping just that he was B. Michael Winn had Detective Police
State at and he arrived by Curry been summoned trial thе At Crowder’s The truck and thereafter. shortly the scene had seen the de- who witnesses presented a road and in the ditch beside trailer were at vari- equipment the stolen fendant with in a field. was off the front end loader on Muhlenberg County places in rural ous Winn equipment all of inspecting After occurred sightings 1st. These July The it had been stolen. determined there each time and throughout day, con- Crowder of his then advised detective A equipment. with problem was some testified as follows rights, stitutional maintenance county road of a member response: concerning Crowder’s Mercer, testified in detail crew, Douglas knowing who denied A Mr. Crowder loader, front end the truck and seeing about had He told me that he was in the truck. where it was trailer, area near a in the on help out the driver of just stopped at about This occurred finally recovered. man seeing ever truck. He denied morning on the 9:30 or 10:00 o’clock knowing his name. before or even the truck and witness said 1980. This given true that he had asked if it wasn’t which he truck highway passed trailer dam- money some for some people some wagon beige a station driving and then had, me that he age. He told wag- of the station The driver passed both. him the truck had driving man down, stopped then flagged the truck on money. some the truck the driver of give ran back to say? he Q What else did A directions, turn around. telling him to along him again questioned A I the station the witness saw short time later give you mean the man some “you line of driveway bottom into wagon pulled even know his money you when don’t trailer with the truсk and of a hill. The you?” again, and he don’t know name the hill and blocked stalled on loader were answer “yes”. get truck could highway the road so the Q else him you What did wagon, iden- of the station The driver by. about, he say? and what else did Crowder, out of got the witness as tified say any- A At that time he did not motioning the driver car and was thing else. The truck and the hill. truck to back down day time of couldn’t Q say Did he what the driver jackknifed and trailer met with this fellow? up he first direction. Crowder go any them make money some the witness gave he first then A He advised me that had truck. for the get some oil he ran off the asked him met the man where had pulled the that Crowder early time The witness said fairly road into the ditch at he and that pocket own money out of his morning. give not see the driver did equip- the stolen Aftеr a wrecker arrived money. and Crow- police ment was secured leave. permitted der was he nor that neither told Mercer operate knew how to of the truck the driver agent an FBI months later Several (a loader bulldozer Sledd, the front end Hopkinsville, Kentucky, Selden front). He or bucket attachment scoop informed by telephone called Crowder moving just responsible were they said him that there was federal warrant there,” opera- ing equipment operator. “down that an After run from coming pulled tor was later to it. Crowder loader the ditch this driving Mercer that had come from Chica- witness saw Crowder leave they told and that he lived on the North He truck while the truck driver left go Side. wagon. the truck and trailer station brought said had Chicagо day. equip- down from pickup The driver of the with a truck ment had the name of the Illinois owner finally winch who cleared the road testified it. Mercer painted stenciled or After that when he came the scene upon near the passengers and his returned with the oil Whittaker farm the trailer was across the truck Crowder ordered the driver out of the road, with the truck in the ditch on one side and tried to move it out of the ditch. Mer- opposite of the road and the loader in the giving cer testified that Crowder was a lot county stopped ditch. The truck was of directions to the driver of the truck and road, equipment. blocked After this *4 there was no doubt his mind that Crow- pulled witness had the trailer out of the charge. der was in After Mercer had start- offered him pull road Crowdеr to $20 ed the front end loader the truck driver truck This out of ditch. occurred about trailer, slipped tried to drive it off the but it 10 a.m. July 1st. When this witness hung up off and in the ditch. Crowder told returned about 3:30 or 4:00 o’clock that driver try to use the bucket on afternoon he was a state stopped by police- dig front end loader to himself out and to man who out the front pointed end loader necessary, tear down the fence if that he parked off the road about 200 feet in a replace pulled would it. When the driver woods, where it seen. barely could be down, the fence the owner of the land on was standing nearby. Crowder which the fence stood ran up and demanded Another passage motorist whose was to know what was saw going on. Mercer blocked the trailer testified that after pull money Crowder some out of his pocket the equipment was removed from the ditch give and it to the landowner. the truck driver ran into the witness’ truck The road was when finally cleared pulling before with the trailer at- away equipped truck with a winch arrived and its dump tached to the truck. When the wit- truck, driver used this equipment pull about truck protested ness to Crowder trailer and loader out of the way so he hit, said “it was a having been Crowder go could Mercer through. compan- and his proba- reliable and would pretty company” ions then left to which replace mailbox damages. take care of A short bly damaged by had been mower. highway sit- time later this witness saw loader Upon returning they again upon came ting proper- in the road nеar the Whittaker truck, trailer and loader. This time Crow- After the sheriff’s office to ty. calling having der and the truck driver were trou- that his truck had been hit the wit- report ble with the truck and trailer brakes. where he had last place ness returned to the loader, gone. Following it was One of the other crewmen with Mercer seen the but pavement testified to the same effect as the fresh tracks on the he found generally Mercer, parked gravel that the loader in a thicket off a specifically Crowder giving upon the truck driver directions and that road. Later he came Crowder with trailer, give money dump again he saw Crowder to the land- truck and stalled on fence was damaged. owner whose the hill. landowner, Whittaker, Marvin identi- and Detective Winn Trooper Curry After invеstigation their people concerning
fied Crowder as one of the who had had testified with a truck and front end loader conversations with Crowder problems who getting agent stuck in a ditch near his called FBI property. government gave money objections He testified that him testified over defense that Crow- Crowder to discuss the pay post down a fence and der told him he did not want tearing that him to stand the state- charges, Crowder told he was deliver- but wished jury, De- sua police. immediately charged the state court made to ment he had mistrial, right had the to make sponte, perfect but his “He moved for fense counsel statement, Gentlemen, and that Ladies and motion was denied. considered evidence of it is not to be C. guilt.” in his own testify elected to version of the events of behalf. His II. 1980 was that at about 8:00 o’clock Crowder contends district measure way he was on his morning per constitutional error in court committed installed, he had dry some wall FBI testimony that he told the mitting bill, when he making out a purpose the mat agent he did not desire discuss truck, trailer and load- upon dump came ter for which he was arrested and that he road. testi- jackknifed er chose to his statement to the state stand help he and offered to stopped fied that principally upon Doyle He relies police. encoun- problems then the various recited Ohio, that he had never seen tered. He insisted (1976), arguing that the dump truck before driver prohibited introducing testimony from time. He said when the fence was dam- having been ad remainеd silent approached them the aged and Whittaker problem to do so. The vised pay driver him and told him to gave $40 never argument this is that Crowder money man for his fence. He also said the his Fifth Amendment exercised *5 gave buy he Mercer to oil was from the $40 he advised he had a remain silent as was him, which the had as was the given driver by first De right questioned to do. When gave pull equip- he the motorist to $20 a full tective Winn defendant offered ment out with his winch. He stated that he of his activities. exculpatory explanation dump saw the driver of the truck walk into Sledd, by Agent When later questioned just police before the arrived and woods while he said he did not want discuss him time. he had not seen since matter, specifically agent he referred the testified that he lived in Ken- to Winn and said he previous
tucky July and had not been in Illinois on wished to that statement. This stand any during preceding speak, 1st or time week- not a not to was claim of telling story. end. He denied Mercer that he lived his previous but reiteration of Chicago brought or that he had Ohio, Doyle The as stated equipment to from Kentucky Chicago. On Court, writing Justice Powell for the cross-examination Crowder said he had left seek prosecutor may was “whether a state morning home at 7:30 or 8:00 o’clock on the impeach exculpatory story, a defendant’s July specifically 1st and denied being trial, by told for the time at cross-ex- first community day. of Gus earlier that A amining the defendant about his failure to rebuttal witness testified that he saw the story receiving have told the after Miranda truck and trailer with a lоader on it about the time warnings at of his arrest.” morning 7:00 o’clock on the It July 1st. 611, (emphasis at at 2241 U.S. S.Ct. traveling light- toward Gus and a small added) (footnote omitted). due process The wagon colored station with a tire on spare of un- Doyle violation identified in is that top following. beige station fairly suggesting person to a that a wagon strapped top had a tire to the spare at arrest who has elected to remain silent July 1st. being after told he had the to do so fabricat- telling recently Crowder also testified on cross-examina- must be Agent story exculpatory tion that he had FBI ed when he offers an told he the matter and for his activities at trial. Since explanation did not want to discuss Miranda recitation of previous implicit would stand statements to it is carry penalty,” no The district that “silence will Kentucky State Police. “to with a homicide at a location in particular silence thus induced not be used of- explanation subsequently Arbor, an impeach Michigan. Ann At his trial the de- 618, 96 at 2245 fered at trial.” Id. at S.Ct. fendant testified on direct examination that omitted). (footnote the car a different had stolen from loca- prosecutor tion. On cross-examination the Anderson, Jenkins asked the defendant if this was a recent the Su S.Ct. After fabrication. this court directed the made it clear that there is no preme Court grant violation when a defendant is cross- district court to defendant a writ Doyle where Miranda examined about silence no corpus Supreme of habeas Court re- de warnings given. have been There the versed, that “a defendant who holding vol- why fendant was asked he had told no one untarily speaks receiving Miranda his self-defense of a version homicide warnings has not been induced to remain killing time between the and an interview subject silent. As to the matter of his police with a officer some later. In days statements, the defendant has not remained quiry pre-arrest permitted, into silence is silent at all.” Id. at at 2182. governmental because no action has induced prior Cross-examination about inconsistent defendant remain silent. Id. at statements was found not to have been at 2130. emphasis This designed meaning to draw from silence. importance of the Miranda warnings of this case are not exactly facts like Doyle repeated rationale was in Fletcher v. Doyle those of or of its progeny. Here Weir, Crowder did tell his not version (1982) (per curiam). L.Ed.2d 490 There the 1st events for the first time while testifying record did not reflect that Miranda warn trial, as was the case in ings were silence period of period pre-ar- Fletcher. Nor was there a immediately following arrest. The defend by post-arrest expla- rest silence followed ant offered an exculpatory story for the nation of events which led to criminal first time while on his own testifying behalf charges questions as in Jenkins. And the prosecutor and the was allowed to cross-ex asked at trial impeach did seek to why amine as to the defendant had failed to *6 by revealing prior defendant a inconsistent advance his exculpatory explanation when arrested. statement as in reversing judg this court’s Anderson v. Charles. How- ever, Charles, ment a writ granting corpus of habeas as in Anderson v. there was Supreme Court wrote: no silence. the time of From Crowder’s police first encounter with the state
In the absence of the sort of affirma- 1, 1980, tive only assurances embodied in the he maintained that his connec- Miranda warnings, we do not believe that it vio- tion with was that the stolen process lates due of law for a to State lending stranger a traveler assistance to a permit cross-examination as to postarrest having difficulties on the road —a Good Sa- silence when a defendant chooses to take explanation maritan. He offered that entitled, A stand. State is in such when it became clear that Dеtective Winn situations, to the judge jury leave to suspicious was of his activities and had ad- under its own rules of evidence the reso- rights. vised him his constitutional lution of the extent to which postarrest Agent presented When the federal silence may impeach be deemed to a crim- said, effect, complaint Crowder in “I have inal defendant’s own testimony. my told story Kentucky State Police Id. at 102 at 1312. sticking and I am to it.” There was never Fifth privi- claim of the Amendment
The defendant
in Anderson v.
lege to remain silent. This case is con-
100
222
65 L.Ed.2d
v.
“the
(1980)
curiam),
by
trolled
Anderson Charles because
(per
police,
told the
when
arrested
not remained silent at
receiving
Miranda warn-
defendant has
all.”
ings,
that he had stolen a car
at 2182.
connected
447 U.S. at
Supreme
that
v.
that a similar chаrge
contends
Anderson
Court held
The defendant
process rights
this
violated
of a criminal
not control
case because
the due
Charles does
no
was
defendant. The
reasoned that
prior
made a
statement which
Court
never
conclusive or rebut-
testimony.
presumption,
his trial
This
whether
inconsistent with
table,
reading
shifting
v.
which has the effect of
argument relies on a
Anderson
may
too
While
burden of
defendant
persuasion
Charles which is
restrictive.
Any
in a
case.
instruction
prior
there was a
inconsistent statement
exist
criminal
as
case,
interpret
advising
that
furnished
which the
merely
jury may
it
the occasion
no that a
exists is
burden-shifting presumption
the defendant. There is
questioning
holding
erroneous.
that the Court limited its
indication
involving prior
inconsistent
situations
to the one given
Instructions similar
Anderson
statements. What
v. Charles
present
by
had been criticized
case
rule
Doyle
appli-
has no
teaches is that
this court
to the Sandstrom decision.
prior
cation unless the defendant has remained
Reeves,
See, e.g.
v.
594 F.2d
United States
considered
have done
silent and could be
(6th Cir.1979);
Gaines,
v.
United States
implied
so in
assurances of
reliance on
Cir.1979); United
(6th
culpatory nation. given Miranda having after been silent by this is controlled the Su-
warnings,
case
rights
a waiver of Miranda
Although
v.
in Anderson
preme Court’s decision
and
from a defendant’s words
be inferred
404,
2180,
100
65
447 U.S.
S.Ct.
actions,
proof
upon
the
the burden
rests
than
the
by
rather
L.Ed.2d
Waiver of
constitutional
government.
Ohio,
v.
holding
U.S.
Court’s
v.
presumed. Tague
is not
610,
2240,
(1976).
formulation used in order to interpreted by subsequent and limited Su- rights, assert Fifth Amendment defend- preme Majоrity op. Court decisions.” response ant’s to was a Sledd’s Rather, major- (citation omitted). layman’s way achieving same result. ity the evidence as showing construes Since Crowder did not relate the details or Doyle, unlike the defendants in Crowder did exculpatory story agent substance of an not remain exercise silent but Sledd, neither his words nor his conduct story given instead reiterated the he had voluntary, knowing demonstrates a and in- several before to the Kentucky months of the telligent waiver to remain si- agree. State Police. I do not lent. Crowder made no statement and his silence should not have been introduced purported “statement” during government’s case-in-chief or first presented jury during cross-examination. FBI agent prosecu- Seldon Sledd Peck in Seсondly, by Judge and as noted tion’s case-in-chief: dissenting opinion, government was Q. Did he state that he understood able to introduce the substance of the de- rights? the constitutional exculpatory story fendant’s the tes- through A. Yes he did. Winn, timony ques- of Detective who had approach MR. we May OSBORNE. tioned the recovery Crowder at scene. The bench. response Agent defendant’s later Sledd’s BY THE Yes. COURT: question no than prior more mentioned the (At hearing bench out of the of the statement and was not inconsistent with jury-) that statement. Unlike situation in An- MR. I believe this OSBORNE. don’t derson v. the defendant’s response trick. impeachment purposes. useless for Consequently, government’s purpose MR. This what? GILLENWATER. introducing the must have been response MR. This trick —t-r-i-c-k. OSBORNE. place before the the defendant’s elec- This man took the fifth and declined to tion to Implying remain silent. that a de- a statement. give fendant is guilty because he declined to talk BY are ob- you THE COURT. What to law having enforcement officials after jecting to? given been Miranda warnings precisely MR. He advised the man OSBORNE. tactic that v. Ohio found to be of his constitutional and he was fundamentally unfair. willing give a statement. He said Accordingly, judg- would reverse the to, he didn’t want and he didn’t have to. ment of the grant district court and BY THE Mr. COURT: Witness. writ. (Witness hearing at bench out of jury.) PECK,
JOHN W. Judge, Senior Circuit Jones, dissenting with whom Keith and BY THE Did the defendant COURT. Judges, joined. Circuit you you make a statement ad- rights? vised him of his Because I believe that errs No, He THE sir. said WITNESS. both in interpretation Doyle Ohio, its didn’t want to and he didn’t have to. (1976), and I re- progeny, analysis its and in its MR. GILLENWATER. Could that he memory? instruction in contraven fresh his He said would tion of the v. Mon the statement he made to the dictates of Sandstrom stand tana, police. 61 L.Ed.2d
176
MR. That is his A. (Continuing) lawyer. GILLENWATER. Not this statement. Trans. 429. right. BY All I will let THE COURT. reading I believe that a fair of this testi-
him answer about that.
mony reveals that
invoked his
honor,
MR.
Your
to allow right
explicated
OSBORNE.
to silence as
in Miranda v.
Arizona,
436,
1602,
evidence the admission of an accused
into
384
86
16
U.S.
S.Ct.
person
to refuse a statement after he has
694
L.Ed.2d
and leads to the conclu-
violence,
rights
been advised of his
is in
by Doyle.
sion that
this case is controlled
of the fifth
my opinion,
amendment
made his
Agent
Constitution,
the United
and I
invoking
following
States
to silence
move for a mistrial.
his Miranda
reading
and on
the advice of
As the Supreme
counsel.
Well,
BY
if
THE
he had re-
COURT.
Doyle:
Court stated in
fused, this evidence wouldn’t have been
person
under arrest
is in-
competent, but he didn’t. He
he
said
“[W]hen
formed,
requires,
as Miranda
that he may
his statement
po-
would stand
to the
silent,
remain
anything
says may
he
lice.
him,
be used
against
may
he
Continuing Direct Examination
wishes,
attorney
have an
if he
it seems to
Q.
you-
Did he indicate to
did
—What
me that
it does not
comport
due
he
say
you?
process
permit
prosecution during
A. After being advised of his rights,
the trial
call
attention to his silence at
he stated that he did not wish to discuss
the time of arrest and to insist that be-
charges,
these
he wished to stand
speak
cause he did not
about the facts of
the statement he had made to the State
time,
the case at that
as he was told he
Police.
do,
need not
an unfavorable inference
Trans.
(еmphasis added).
317-19
might be drawn as to the truth of his
”
“statement”
again
trial testimony....
presented
during
prosecu-
2245,
There is one
approach quite
well:
delineated
case,
Doyle from the instant
but the distinc-
acknowledges
If the defendant
an
supports vacating
judg-
tion further
intentional,
killing
malicious
occurred and
ment
district court.
involved
then a
only
non-participation,
claims
emphasizing
a defendant’s
prosecutor’s
be harmless.
instruction
Sandstrom
purpose
impeaching
silence for the
if the
asserts lack
Conversely,
defendant
subsequent
testimony.
defendant’s
trial
rea, a
instruction can
of mens
Sandstrom
case,
prosecution
the instant
first intro-
even if overall
extremely prejudicial
be
duced evidence
invoking
of Crowder’s
intent or malice is substantial.
proof of
to counsel in its case-in-ehief. The
(citation omitted).
tal state issue into LABOR NATIONAL RELATIONS defense, government argued, BOARD, Petitioner, but the instructed, the trial court that Crowder’s knowledge was stolen PIPEFITTERS UNION LOCAL NO. explain could be inferred from his failure to 120, Respondent. or his unsatisfactory explanation pos- 82-1296. No. session of the In such circum- equipment.
stances, not, does, majority I would as the United Appeals, States Court of apply woodenly “overwhelming an evi- Sixth Circuit. dence” standard as a touchstone for deter- Argued June 1983. mining the harmlessness of a Sandstrom not, does, the majority error. would as 13, 1983. Decided Oct. find the error in the Sandstrom instant case As Amended Oct. 1983. proof harmless because the overall guilt is substantial. apply
Even if I were to an “overwhelm
ing case, evidence” standard in this I would
dissent from the majority’s holding that the
Sandstrom error was harmless. While the
evidence was sufficient to sustain Crow conviction,
der’s sufficiency of the evidence
is not dispositive of the issue of harmless Engle,
error. Williams v. 683 F.2d
(6th Cir.1982) curiam). (per I do not find
the proof guilt overwhelming. states,
As the Crowder’s testi-
mony was contradicted the testimony of
disinterested witnesses on points. various however,
The majority ignores, that on
many of those points Crowder’s testimony
was corroborated testimony of other
witnesses. conflicting Due to the
and the fact that proof of most
ultimate issues of fact relies heavily
inferences, I cannot concur in the majority’s
finding that proof guilt was so over-
whelming in this case that the Sandstrom
error was Williams, harmless. See supra. reasons,
For the above I respectfully dis-
sent.