UNITED STATES оf America, Appellee, v. Richard M. PENTA, Defendant, Appellant.
No. 72-1331.
United States Court of Appeals, First Circuit.
Argued Jan. 5, 1973. Decided March 7, 1973.
Richard E. Bachman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
In June, 1970, appellant Penta was convicted of fraudulently possessing and transferring counterfeit Federal Reserve Notes in violation of
Initially we are met with the government‘s contention, superficially appealing, that appellant may not be heard to complain about the use of the state convictions by the prosecutor on cross-examination since his own trial counsel elicited admissions of these convictions from him on direct examination. While there is some authority for the view that a defendant who first raises the issue of his prior convictions cannot complain of prosecutorial reference thereto, that rule is based upon the premise that the convictions were properly admissible in the first place to impeach the defendant‘s credibility and might have been inquired into by the prosecutor in the face of a defendant‘s silence on direct examination. Bohol v. United States, 227 F.2d 330 (9th Cir. 1955); United States v. Menk, 406 F.2d 124 (7th Cir. 1968) cert. denied, 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969). That is a far cry from what we take to be the claim here: that while the state convictions may have been рroperly admissible at the time of the federal trial, their subsequent reversal requires a new federal trial. Moreover, we cannot fault appellant‘s trial counsel who, apparently acting in good faith, introduced into evidence appellant‘s prior state convictions, so as to prevent the prosecutor, on cross-examination, from stunning the jury by being first to bring these skeletons out of what otherwise might have been viewed as the defendant‘s deceptively clean closet.2 We thus address appellant‘s argument.
Appellant does not deny that he committed the act in question, but rather argues that he was entrapped by one O‘Connеll, a former business associate acting as a government agent. His story is that O‘Connell owed him several thousand dollars, which O‘Connell said could be paid only if appellant helped him, as a middleman, to sell counterfeit money. O‘Connell supposedly approached appellant on December 3, 1969, with this request which was allegedly consistently refused until December 10, the morning of the sale. From the testimony of government agent Hurley it appears that O‘Connell first told Hurley on December 9 that an unnamed friend of his wished to sell counterfeit money. At that time Hurley told O‘Connell that he “would see what [he] could do for [O‘Connell]” on аccount of his help.3 Late at night, after viewing samples of the counterfeit money, Hurley instructed O‘Connell how to continue dealing with appellant and set up a meeting preceding the sale. Appellant‘s name was never revealed to Hurley, despite his continual questioning, until one hour before the meeting on December 10.
At the conclusion of appellant‘s testimony his trial counsel asked him about his prior convictions and parole status, all of which he openly admitted. Assuming arguendo that after O‘Connell‘s December 9 visits with Hurley he could be said to have become a government agent—an issue sent to thе jury—only then would appellant‘s credibility be crucial to his defense of entrapment. See generally Kadis v. United States, 373 F.2d 370 (1st Cir. 1967). In that situation, appellant alleges—and we will assume so at this juncture—that the evi
It has recently been decided that if a conviction is based in part, on the use of prior convictions which are constitutionally invalid due to lack of counsel and which were introduced to impeach a defendant‘s credibility, it must be set aside if there is no harmless error. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). See also Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). While the Supreme Court had before it in Loper the broad question “Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case“, in its resolution of that issue in the particular fact situation before it, the Court drew exclusively upon the rationale behind the rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which “goes to ‘the very integrity of the fact-finding process’ in criminal trials” and recognizes that convictions of uncounseled defendant lack reliability. Loper, supra, 405 U.S. at 484, 92 S.Ct. at 1019. Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969), involving a factual situation virtually identical to the one beforе us now, addressed the problem of prior convictions subsequently found invalid because of an illegal search or seizure and could find no controlling distinction between Fourth and Sixth Amendment rights which would support a conclusion different from Burgett, the predecessor to Loper. It said that “while it is true that the use of evidence resulting from an unlawful search and seizurе is less likely to affect the integrity of the fact-finding process than the denial of counsel at trial . . . the creation of such a constitutional hierarchy is not part of the rationale of Burgett.” Id. at 316.
In light of subsequent developments involving the exclusionary rule and Stacks’ omission of any discussion of Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), see infra, we feel compelled to examine anew the issue in Stacks. We agree that the use of evidence obtained from аn unlawful search and seizure has a definite influence on the fact-finding process, but in a very different way from deprivation of counsel. Such evidence tends to make the resulting conviction more, not less trustworthy. There is no lack of reliability as there was in Loper.
If the use of appellant‘s prior state convictions, subsequently found to suffer from a constitutional defect, require that his federal conviction be vacated absent harmless error, it is only because the fruits of the poisonous tree now contain this additional genus. But an examination of the roots of that tree and recent actions to limit its growth require rejeсtion of appellant‘s claim. The exclusionary rule has been called a deterrent against future illegal police conduct. “Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). And long ago, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), established the rule as a remedy for violations of the offender‘s Fourth Amendment rights.
When these principles are examined in an effort to apply the exclusionary rule here, they give little support to appellant. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) permitted the introduction into evidence of a confession relating to the offenses charged which was uncoerced, hence apparently trustworthy, but otherwise inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The confession was used as
If the exclusionаry rule‘s application in these circumstances is sought to be justified as a remedy for violation of appellant‘s Fourth Amendment rights many years ago by Massachusetts police, we think that the suggested cure is worse than the disease. First, appellant has already received a remedy which is the most apрropriate—his prior convictions were reversed. But more fundamentally, at the time of the federal trial the Massachusetts Supreme Judicial Court had already affirmed appellant‘s state convictions. Commonwealth v. Penta, 352 Mass. 271, 225 N.E.2d 58 (1967). There was not the least hint or suggestion that those convictions were invalid.5 The situation is far different from cases like Loper where a trial judge could rather easily resolve a deprivation of counsel claim by reference to a defendant‘s sworn statements and trial court records of prior convictions. It would play havoc with our court system to require a judge to conduct side-trials into the allegedly invalid prior convictions to determine the legality of a search or seizure. See United States v. Wendt, 347 F.Supp. 647 (N.D.Ga. 1972) (dictum). We do not think that the theoretical possibilities regarding additional police deterrence or the need to effectively remedy violations of Fourth Amendment rights can serve as the justification for imposing such heavy burdens on our courts.
Nothing we have said so far is meant to suggest that we would condone introduction of the state convictions had they been overturned, on the basis of the illegal search, prior to the time of the federal trial. We note that appellant did not testify falsely on direct examination as to matters which could be specif
To the extent that we may be incorrect in reading the recent Supreme Court holdings as requiring rejection of appellant‘s claim, we still believe that the use of the prior convictions constituted harmless error beyond а reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 258 (1972). First, appellant‘s credibility on his entrapment defense was greatly harmed by evidence relevant to predisposition that he had been charged with possession of burglar tools in the past. Second, his story was contradicted directly in part by government agents who testified to apрellant‘s suede coat being dry—though he alleged having walked some three blocks in a rainstorm to the place of the sale—and to his having stated, after being warned of his right to remain silent, that he had been sent out with some money to obtain some bread and had returned with neither money nor bread—a fact appellant denied at trial. Though appellant may have been incorrect in his testimony on these points and still may have been capable of being believed as to his story of entrapment in the main, we think that the use of the convictions when considered in this context added no more than minimally to the enоrmous damage already done to his credibility.
Affirmed.
ALDRICH, Senior Judge (concurring).
I am happy to go along with the court‘s opinion, but I believe there is a shorter approach. The close decision in Loper seems clearly to have turned on the lack of integrity, or reliability, of the prior fact finding process. Since the Court has given retroactive effect to Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Doughty v. Maxwell, 1964, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650, reversing Doughty v. Sacks, 1963, 175 Ohio St. 46, 191 N.E.2d 727; see Pickelsimer v. Wainwright, 1963, 375 U.S. 2, 3-4, 84 S.Ct. 80, 11 L.Ed.2d 41 (Harlan, J., dissenting), the Loper holding is a logical extension of that case. The Court, however, has not given retroactive effect to Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; see Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Desist v. United States, 1969, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, and the reasons given by the Court for distinguishing Gideon from Mapp convince me that, with due respect to Beto v. Stacks, 5 Cir., 1969, 408 F.2d 313, the nature of the constitutional defect does make a difference in this kind of case. Basically the Mapp rule was of constitutional proportions because of its prophylactic importance,