UNITED STATES оf America, Plaintiff-Appellee, v. Terrance A. WILLIAMS, Defendant-Appellant.
No. 89-4083.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 21, 1991. Decided Nov. 15, 1991.
949 F.2d 220
This approach is in no way inconsistent with the Advisory Committee Notes to
I also disagree with the view articulated in Judge Boggs’ concurring opinion that the statement that must be corroborated is the one exculpating the accused, not the confession of the witness. The rule does not draw such a distinction. The fact that parts of a statement are corroborated may make it likely that all parts of a statement arе trustworthy. In any event, here there was some corroboration of the portion of Fields’ statement exculpating Danny—Terry‘s statement and the government‘s own proof showing that only two men actually cаrried out the robbery.
With respect to the trial court‘s refusal to allow Terry Keith Arthur to put on a wig and cap before the jury, discussed in section II.C. of the court‘s opinion, I do not agree that this refusal was rеversible error. While, under the circumstances of this case, seeing Terry in a wig and cap might have been helpful to the jury, the decision not to permit that demonstration does not rise to an abuse of discretion. See United States v. Brady, 595 F.2d 359, 361 (6th Cir.), cert. denied, 444 U.S. 862, 100 S.Ct. 129, 62 L.Ed.2d 84 (1979).
For these reasons, I concur in all of the court‘s opinion except section II.C.
Ronald B. Bakeman, Asst. U.S. Atty. (argued and briefed), Cleveland, Ohio, for plaintiff-appellee.
M. Kathryn Croft (argued and briefed), Akron, Ohio, for defendant-appellant.
Before JONES and GUY, Circuit Judges; and PECK, Senior Circuit Judge.
RALPH B. GUY, JR., Circuit Judge.
After defendant‘s conviction was affirmed by this court, he sought review by certiorari in the United States Supreme Court. The Supreme Court, in an order filed April 29, 1991, vacated our judgment and ordered the case remanded “for further consideration in light of the position presently asserted by the Solicitor Generаl in his brief for the United States....” ___ U.S. ___, 111 S.Ct. 1572, 114 L.Ed.2d 74.
The brief submitted by the Solicitor General argued in favor of affirmance of our decision, but did state that it agreed with petitioner that district court probable cause determinations should be reviewed under a de novo standard. The rule in the Sixth Circuit, followed originally in this case, is
Although one panel of this court is bound by the on-point published decision of an earlier panel, we can nonetheless indiсate what our result would be if we examined the probable cause determination de novo. Like the Solicitor General, we conclude that the result does not change:
By the time petitioner was apрrehended, the officers not only knew the facts that gave rise to their reasonable suspicion, but also had observed petitioner and his companion flee and refuse to halt in response to the officers’ command. Moreover, the officers saw petitioner‘s companion tear a plastic bag open while he was fleeing and attempt to discard a substance that appeared to be crack cocaine. Petitioner states that “[m]erely being in the presence of one who commits a crime, even knowing that it is being committed, is not sufficient to charge the obsеrver as a principal.” Pet. 7. But petitioner was more than a mere observer, and there was probable cause to arrest him as well as the other man. The police had watched the two men get off the bus together, walk to the car together, walk down the street together, and then flee from the officers at the same time. When one of the two tried to rid himself, while he was fleeing, of a substancе that appeared to be crack cocaine, the officers had an adequate basis to believe that both petitioner and his companion were acting in concert to transport and distribute cocaine. See United States v. Patrick, supra, 899 F.2d at 171-72.2 Thus, under any standard of review the lower courts’ conclu-
sion that petitioner‘s arrest was justified by probable cause was correct.
(Solicitor General‘s Brief at 8-9).
We also note in passing that our analysis of the issue of whether a seizure occurred when the officers began to chase the defendant and shouted, “Halt,” was totally consistent with the result reached by the Supreme Court in the subsequеnt case of California v. Hodari D., ___ U.S. ___, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Therefore, we reiterate that no seizure occurred under the facts here until the actual arrest took place, by which time the officers had probable cause for thе arrest.
Defendant‘s conviction is AFFIRMED.
NATHANIEL R. JONES, Circuit Judge, dissenting.
In my original review of this case, I was particularly disturbed by the district court‘s apparently untroubled conclusion that probable cause supported Terrance William‘s arrest, despite the undеniably significant racial component underlying that determination. Believing that my colleagues shared my concern, but equally mindful of the extremely deferential stance from which we review a trial court‘s factual findings, I concurred, albeit with some reservation, in this panel‘s original statement that, “[a]lthough we view the issue as a close one, we cannot say the conclusion of the district court was cleаrly erroneous.” The majority now concludes, somewhat inexplicably, that we would have reached the same conclusion had our initial review been plenary. Because the passage оf time has not lessened my conviction that race has no place in the assessment of probable cause, I dissent.
The district court found that the drug courier profile employed by the officers in thе instant case led them to focus their attention on travellers who were: (1) young African-American males; (2) arriving into Cleveland from Detroit; (3) using the Greyhound bus system; (4) arriving in the late evening or early morning hours; (5) carrying no luggage; and (6) not met by family members or acquaintances. Factors two, three, and four are in and of themselves hardly suspicious and, more important, gave the officers no logical grounds for suspecting Williаms and his companion above any of the other passengers who deboarded the bus that evening. Cf. United States v. Andrews, 600 F.2d 563, 566 (6th Cir.) (holding that travel from a “source city” cannot be regarded as in any way suspicious), cert. denied, 444 U.S. 878, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979). Nоr did the government offer even a scintilla of evidence, statistical or otherwise, to rebut the entirely plausible, common-sense suppositions that many of those making the relatively short journey from Detroit to Cleveland would not be carrying luggage or would not necessarily have family or friends waiting to greet them. In short, the drug courier profile as used in this case creates the overwhelming impression that the officers singled out Terrance Williams primarily if not solely because he was a young African-American male, and thereby seriously draws into question whether the officers’ conduct does not run afoul of the protections guaranteed by the Equal Protection Clause against discriminatory treatment on the basis of race. As the Fifth Circuit has recently observed, “[t]he heart of the Equal Protection Clause is its prohibition of discriminatory treatment. If a governmental actor has imposed unequal burdens based upon race, it has violated the clause.” Samaad v. City of Dallas, 940 F.2d 925, 932 (5th Cir.1991).
That Williams was a young African-American male not only influenced the officers’ decision to trail Williams and his companion, but was explicitly relied upon by the district court in its determination that probable cause supported Williams’ apprehension and arrest. This court as well as others continue to operate under the misapprehension that race plays less of a role in this Nation‘s treatment of its citizens, in particular through its law enforcement agents, than reality compels. The singling out of African Americans simply on the
I cannot come away from this case without feeling deeply troubled: troubled that this Nation‘s citizens arе receiving disparate treatment at the hands of police officers primarily on the basis of race, troubled that such unequal racial treatment is considered increasingly appropriate by trial courts, and most troubled by this court‘s conclusion that such race-based treatment is entirely unobjectionable as a legal matter. It is undoubtedly tragic when a significant number of black Americans fear that they are presumptively under suspicion of criminal activity in the eyes of the law merely because of their race. Infinitely more tragic is the strong possibility that their fear may be justified.
I respectfully dissent.