Petition for Writ of Certiorari — Baker v. United States

a

no OF 912 NOV 25 197

OFFICE OF THE CLLRA

Cin O) he

Supreme Court of the Cited States

October Term 1997

ANTHONY MARCELLUS BAKER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petition for Writ of Certiorari

Kenneth M. Robinson

Counsel of Record

Dennis M. Hart

THE ROBINSON LAW FIRM

717 D Street, N.W.

Suite 400

Washington, D.C. 20004-2807

(202) 347-6100

Counsel for Petitioner s

THE LEX GROUP ¢ 1205 East Main Street @ Suite 2 East ¢ Richmond, VA 23219

(804) 644-4419 # (800) 856-4419 @ Fax: (804) 644-3256

1 NT a AAI np me CREE me re =

STATEMENT OF ISSUES PRESENTED FOR

REVIEW

l. The panel opinion allowance of the use at trial of the

post arrest and post Rule 5 silence of the Petitioner is

contrary to the Court’s decision in Doyle v. Ohio, 426 U.S.

610 (1976), and a trial where the verdict is based on such a

holding deprived the Petitioner of due process of law.

PARTIES INVOLVED

The following individual appeared as a defendant in

the United States District Court for the District of Maryland

as an appellant in the United States Court of Appeals for the

Fourth Circuit: Anthony Baker.

ll

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TABLE OF CONTENTS

Page

STATEMENT OF ISSUES

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I. The Petitioner Was Denied Due Process of

Law When the Court of Appeals Affirmed

| His Conviction in the Face of a Violation of the

i Constitutional Right to Remain Silent..................... 7

1. The Court of Appeals Ignored the Facts....... 8

. 2. The Court of Appeals Misconstrues

the Protection of Doyle ................s..ssssessees 10

A. Greer v. Miller is Inapplicable to

TIE EO SE vcckiaseninvcisidicnsensicnses 10

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CONCLUSION

B. Fletcher v. Weir \s Inapplicable to

SEND COE EF i raccencdtssnsicsbisiis<snteanincs 13

C. Raffel v. United States Does Not

Support the Panel Decision.............. 4

TABLE OF AUTHORITIES

CASES PAGE

Brecht v. Abrahamson,

507 U.S. 353 SRTEEE skiniimnemarigiumcini 12

Chapman vy. California,

SO NOD soioinichnnicsc a 14

Doyle v. Ohio,

WO PID ii passim

Fletcher v. Weir,

FP RN RED Siciesieeireiieciinacig ots 13

Greer v. Miller,

483 U.S. 756 REIMEED heinhnrncueracaac no 10, 11, 12

Grunewald v. United States,

353 U.S. 39] PEE tints nidliticnc cee 15

Johnson v. United States,

318 U.S. ROP SRME iistinacctevans game. ee, 15

Kotteakos v. United States,

328 U.S. 750 EMOTE Wiiuncwiindcmoereii 14

Miranda vy. Arizona,

384 U.S. 436 Se Re RP NE Ea eT er B, 42,42. 35

Raffel v. United States,

Sp igs sates, cc, 14,15

Stewart v. United States,

366 U.S. 1 ROPE tilidiliusecnniee os aS 15

United States v. Baker,

TE SETS CE” Cle, TOIGY onsiciecdiecmeceseuinieacss 1,3

United States v. Berroa,

Ee Chr Gee SIE esi ccraccvsarnessvacssetsacenneangeaane 9.10

United States v. Hale,

Se EO OE? cries dust sinaredecisioncinbaahsusronscvace 7, 10, 13, 15

United States v. Olano,

rc eeubladaonmabiemeenibetendlire 10

Wairwright v. Greenfield,

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STATUTES

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CONSTITUTIONAL PROVISIONS

The United States Constitution,

Cee ee al apuaias 2

vi

Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

Petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Fourth Circuit entered on August 28, 1997, affirming

his conviction for a weapons-related offense.

Opinion Below

A panel of the United States Court of Appeals for the

Fourth Circuit issued an unpublished opinion on August 28,

1997, which affirmed Petitioner’s conviction for a violation

of 18 U.S.C. 922(g). United States y. Anthony Baker, (No

96-4627). A copy of the opinion is reproduced at App. 1.

There was no petition for rehearing or rehearing en banc

filed.

Jurisdiction

This Court has jurisdiction of this direct criminal

appeal pursuant to 28 U.S.C. § 1254(1).

Constitutional Provision

The Fifth Amendment to the United States

Constitution provides, in pertinent part, that “No

person...shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law...”

Statutes Involved

Petitioner was convicted after a trial by jury of

possession of a firearm after conviction of a prior felony in

violation of 18 U.S.C. 922(g). This statute is reproduced at

App. 7.

Statement of Facts

Petitioner seeks review of the August 28, 1997,

judgment of the United States Court of Appeals for the

Fourth Circuit which affirmed his conviction for possession

of a weapon by a convicted felon. By affirming the

conviction, the opinion below mis-applies the holding of

this Court announced in Doyle v. Ohio, 426 U.S. 610 (1976).

In January of 1994, the Petitioner was stopped by a

member of the United States Park Police for a traffic offense.

During the course of the stop, the officer noticed a bulge in

the Petitioner’s clothing which turned out to be a .32 caliber

pistol. The Petitioner fled the scene and he was not indicted

until September of 1994, when he was arrested for another

traffic offense, at which time a one count indictment for

violation of 18 U.S.C. 922(g) was filed in the United States

District Court of the District of Maryland.

Pursuant to a motion to suppress, the district court

Suppressed the weapon as evidence at trial in a December

1994, ruling. That decision was appealed by the government

and reversed by the Fourth Circuit in United States v. Baker,

78 F.3d 135 (4" Cir. 1996). No further appeal in that matter

was taken and the Petitioner went to trial on May 15, 1997.

After a four day trial before a jury, the Petitioner was found

guilty and latter sentenced to a term of 240 months.

In an appeal to the United States Court of Appeals for

the Fourth Circuit, the Petitioner argued, among other issues,

that he had been deprived of a fair trial by the improper

impeachment by the government of his testimony concerning

his pre-trial silence. The Fourth Circuit disagreed and

affirmed the conviction by unpublished opinion on August

28, 1997. A copy of that opinion is attached at App. |.

At his trial, the government produced a Park Police

officer who testified that he observed the Petitioner with a

handgun during a traffic stop involving several vehicles. The

defense presented a witness who claimed that he was present

at the traffic stop and observed the encounter between the

officer and the Petitioner. This witness, who did not observe

the Petitioner with a weapon, testified that he saw the

Petitioner run from the scene with his hands in the air yelling

“Don’t shoot,” after the police officer pointed a gun at him.

This witness also indicated that he saw the officer recover

the weapon from an area outside the path of the Petitioner’s

flight.

Following this witness, the Petitioner took the stand

and testified that he did not possess the weapon in question

and that he fled the scene of the traffic stop because he felt

threatened by the police officer. On cross examination, the

government questioned the Petitioner about three prior

convictions and then asked the Petitioner about his failure to

testify at the December 1994, suppression hearing:

3

Q. Now, Mr. Baker, you also attended the December

1994 hearing, did you not?

A. Yes, I did.

Q. And at that time you were represented by counsel,

were you not, Mr. Baker?

A. Yes.

Q. And you understood long before that you were

being charged because you were a convicted felon, and you

understood that, right, Mr. Baker?

A. I was never in possession of a firearm.

Q. Did you understand the charges against you as

being a convicted felon in possession of a firearm?

THE COURT: Just yes or no, did you understand the

charges?

WITNESS: Yes.

Q. Now, Mr. Baker, you didn’t testify at that

December hearing, did you, Mr. Baker?

(May 16, Tr. 179-180)

After an objection by defense counsel, a bench

conference was held at which time the district court sustained

the objection and proposed an instruction. The government

then indicated that it would ask additional questions about

the Petitioner’s post arrest silence and, despite the objections

at the bench, the district court indicated its willingness to

permit those questions.

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PE Ree Taner Te eee

The district court then instructed the jury that:

Ladies and gentlemen, I need to give

you an instruction. The question that Ms.

Wilkinson just asked the witness had to do

with whether he testified at an earlier hearing.

At that time the defendant was exercising his

constitutional right not to testify. He had no

obligation to. And the fact that he might not

have testified at an earlier hearing is

something that you simply may not consider

one way or another.

Now, the defendant is on the stand

now. He has waived his right against self

incrimination and he may otherwise be

inquired into. But as of that time, he did have

a right not to testify and you can’t draw any

inference from that specific question and

answer. You are to ignore the question and

don’t speculate on the answer.

(May 16, Tr. 182-183)

Immediately after this instruction, the prosecutor

resumed the cross examination of the Petitioner with the

following:

Q. Mr. Baker, between the time of your arrest and the

charges in this case [September 6, 1994], until today, May

16, 1996, have you told anyone from law enforcement,

myself included, this story that you’ve told the jury here

today?

A. Nobody from law enforcement, no.

Q. In fact, this is the first time that we’ve heard this

story, isn’t it. Mr. Baker?

A. This is the first time I chose to testify

(May 16, Tr. 183)

On May 20, 1996, the jury reached a verdict of guilty

on the sole count of violation of 18 U.S.C. 922(g). On July

25, 1996, the Petitioner was sentenced to a term of 240

months. On August 28, 1997, the United States Court of

Appeals for the Fourth Circuit affirmed the Petitioner's

conviction in an unpublished opinion.

REASONS FOR GRANTING THE WRIT

I.

THE PETITIONER WAS DENIED DUE PROCESS OF

LAW WHEN THE COURT OF APPEALS AFFIRMED

HIS CONVICTION IN THE FACE OF A VIOLATION

OF THE CONSTITUTIONAL RIGHT TO REMAIN

SILENT

The panel opinion in this case fails to correctly apply

the rationale of Doyle v. Ohio, 426 U.S. 610 (1976), and in

affirming the Petitioner’s conviction in the face of improper

impeachment, has deprived the Petitioner of due process of

law.

Over twenty years ago, this Court observed that:

Not only is evidence of silence at the time of

arrest generally not very probative of a

defendant’s credibility, but it also has a

significant potential for prejudice. The danger

is that the jury is likely to assign much more

weight to the defendant’s previous silence

than is warranted. And permitting the

defendant to explain the reasons for his

silence is unlikely to overcome the strong

negative inference that the jury is likely to

draw from the fact that the defendant

remained silent at the time of his arrest.

United States v. Hale, 422 U.S. 171, 180 (1975)

The rationale of the Hale decision served as the

foundation for the decision by the Court in the following

term in Doyle v. Ohio, 426 U.S. 610 (1976), in which the

Court concluded that a defendant cannot be impeached with

his post arrest silence at trial in light of his Constitutional

right to remain silent. The panel decision of the Fourth

Circuit wrote that the Petitioner was not entitled to the

protection of Doyle because of the lack of evidence that he

was Mirandized. This conclusion is in error, both factually

and conceptually and should be reversed.

1. The Panel Decision Ignored the Facts

If the invocation of the remedy and protections of

Doyle v. Ohio is to be applied only after the formal

application of Miranda v. Arizona, 384 U.S. 436 (1966), then

the panel opinion is clearly in error. Even if the arrest that

brought the Petitioner into the system is completely ignored,

the undisputed fact is that this Petitioner was brought before

a Federal Magistrate and presented on the charges in

September of 1995. At that time he was advised pursuant to

Rule 5 of the Federal Rules of Criminal Procedure that he

was not required to make a statement and that any statement

made by the defendant may be used against him. While this

advise contains “no express assurance that silence will carry

no penalty,” like the Miranda warnings, the magistrate

advice of rights is of a nature that “such assurance is implicit

to any person who receives the warnings.” Doyle v. Ohio,

426 US. at 618.

Thus, the court records demonstrate that this

Petitioner was advised that he had the right to remain silent

and guaranteed by a federal judicial officer that his silence

would not be used against him. Moreover, the district court

clearly recognized that the Petitioner was Mirandized at least

as far back as his initial appearance before the magistrate

when it gave its curative instruction after the first set of

questions. The panel decision of the Fourth Circuit ignores

this judicial issued guarantee and permits the government to

double-cross a defendant who exercises his constitutional

rights.

Petitioner submits that at the very least when a right

of this magnitude is questioned and there is a conflict in

assertions between the parties, that the facts should be

determined with a remand for fact finding rather than in the

vacuum in which the Fourth Circuit proceeded.

But the panel opinion also makes another significant

factual error when it concludes that the second line of

questioning was unobjected to by Petitioner’s trial counsel.

Because this is essential to the panel’s reliance on Federal

Rule of Criminal Procedure 52, this disregard of the record is

a critical flaw in the panel’s conclusion.

The trial transcript indicated that after the first line of

questioning was successfully objected to by the defense, the

prosecutor asserted at the bench that “I think we can

comment on the fact that he’s never reported this to the

police officers, never told his version of the story to us.

That’s fair cross examination... | think we are entitled to

question him that he’s never told his story to anybody

before.” (May 14, Tr. 180-181) The defense then continued

to object to this proposal and the district court overruled the

objection to the government’s proposal for further

questioning. (May 14, Tr. 181-182) The objection, lodged

repeatedly by defense counsel, clearly established the

petitioner’s objection to additional questions in that area and

the unmistakable fact that the district court was going to

permit further questioning by the government of the

defendant’s silence regardless of further objections.

In light of this straightforward scenario, the panel

opinion is simply wrong in concluding that the second line of

questioning was unobjected to by the petitioner and that any

error was waived and reviewable only under Rule 52. It is

clear that any further objection would have been useless and

a waste of time and that the district court was fully on notice

of the position of the petitioner. See, e.g., United States v.

9

Berroa, 46 F.3d 1195, 1197 (D.C.Cir. 1995)[Rule 30

objection requirements satisfied when circumstances

demonstrate court knew of defects without further objection].

Moreover, as this Court has held, “If a legal rule was

violated during the District Court proceedings, and if the

defendant did not waive the rule, then there has been an

“error” within the meaning of Rule 52(b) despite the absence

of a timely objection.” United States v. Olano, 507 U.S._.,

123 L.Ed.2d 508, 519 (1993). Clearly there was an error of

constitutional proportions which the district court was

informed of and despite objection, permitted the government

to proceed.

2. The Panel Decision Misconstrues the Protection of

Doyle

The decision of the Fourth Circuit panel misconstrues

the protections and remedy required under this Court's

decision in Doyle v. Ohio. This Court recognized the

fundamental unfairness and the danger of the use of silence

against a defendant at trial when that silence is “insolubly

ambiguous.” Doyle v. Ohio, 426 U.S. at 617. The analysis

which supported the Court’s ruling in Doyle and earlier in

Hale relied upon the underlying reasons for the principle of

impeachment and the validity of using silence as a form of

impeachment. Hale, 422 U.S. at 176 ["In most

circumstances silence is so ambiguous that it is of little

probative force”] The panel opinion below ignores this

reasoning and attempts to fit the Petitioner's case into a mold

for which it was not designed and which produces an ill-

fated result.

A. Greer v. Miller is inapplicable to this Set of Facts

The reliance of the panel opinion on Greer v. Miller,

483 U.S. 756 (1987) is incorrect. In Greer, a state, rather

10

than a federal case, the Court declined to exercise

supervisory authority when it found only “a single question,

an immediate objection, and two curative instructions”

caused no violation of due process rights. Greer v. Miller,

483 U.S. at 766. Moreover, the decision not to impose a rule

on state prosecutions was made in the context of a case in

which other evidence that was properly admitted was

sufficient to sustain the conviction. /d. At 767. No such

claim can be made in the present case.

The Petitioner does not claim that the single initial

reference standing alone is sufficient to implicate the

concerns of due process. The Petitioner’s complaint is that

the series of improper questions, followed by an attempt at

explanatory instruction that was limited solely to a

defendant’s right to remain silent at a prior court hearing

which was followed immediately thereafter with the

government’s second inquiry on the Petitioner’s silence gave

the unmistakable impression to the jury that the line of

questioning was entirely proper. Neither the holding nor the

intent of Greer justifies such a conclusion.

Significantly, the district court’s attempt at a remedial

instruction fails to cure the problem because it does not

inform the jury that a defendant has a constitutional right

against self incrimination and that this right is not limited to

prior court hearings. Nowhere is the jury ever told that all

defendants have the right to refuse to speak with law

enforcement authorities during the pendency of the case.

Thus, the instruction did not serve to cure the constitutional

problem with the second inquiry of the government.

Additionally, the sequence of objection, instruction,

and repeated inquiry into the Petitioner’s silence generated

the powerful impression that the district court directed the

second line of questioning and that it therefore was proper.

This implied imprimatur by the district court clearly left the

jurors with the impression that the prosecutor was asking

these questions about the failure to inform law enforcement

1]

authorities about his version of the facts with the

encouragement of the district court. The sequence of events

in the trial of this case strays too far from the scenario in

Greer to allow that decision to serve as a legitimate basis for

the conclusion of the panel opinion.

The multiple questioning in the present case more

closely approaches that of Wainwright v. Greenfield, 474

U.S. 284 (1986), in which the Court reversed a conviction

based on the prosecutor’s repeated references to the post

arrest silence of the defendant as an indicia of conduct that

rebutted his claim of insanity as a defense. The Wainwright

court concluded that although the ambiguity inherent in

silence was a factor, it merely added weight to the

enforcement of the constitutional right to remain silent and

the use of such protected statements agains. 1 defendant was

“fundamentally unfair.” Jd. at 295.

Another decision by this Court of significance which

the panel opinion elected to ignore was that of Brecht v.

Abrahamson, 507 U.S. 619 353 (1993). In Brecht the Court

was faced with questions that covered both the pre-

advisement period and post advisement time and ruled that

“...the State’s references to petitioner’s silence

after that point in time, or more generally to

petitioner’s failure to come forward with his

version of events at any time before

trial...crossed the Doyle line. For it is

conceivable that, once petitioner had been

given his Miranda warnings, he decided to

stand on his right to remain silent to remain

silent because he believed his silence would

not be used against him.” /d at 628-629.

The panel decision incorrectly applies the ruling of

Greer and reaches a result that is fundamentally unfair.

12

B. Fletcher v. Weir is Inapplicable to this Set of Facts

Likewise, the reliance of the panel opinion on

Fletcher v. Weir, 455 U.S. 603 (1982) is also incorrect. In

Fletcher, this Court was faced with a situation in which state

prosecutors were permitted to inquire about post arrest

silence when the record did not demonstrate a Miranda

warning.

As the Fletcher court observed: “The principles

which evolved as the basis of decisional law dealing with

appeals within the federal court system are not, of course,

necessarily based on any constitutional principle. Where

they are not, the States are free to follow or to disregard them

so long as the state procedure as a whole remains consistent

with due process.” Jd at 605. Thus, in permitting the

impeachment, the Court ruled that “A State is entitled, in

such situations, to leave to the judge and jury under its own

rules of evidence the resolution of the extent to which post

arrest silence may be deemed to impeach a criminal

defendant’s own testimony.” Jd. At 607.

The panel opinion in this case overlooks the fact that

this Petitioner was prosecuted by the federal government,

and not by a state which makes an exception to post arrest

silence as an impeachable area. Because the federal system

has already been visited with this question in Hale, the

question is not one of deference to state rules and careful

balancing. That decision has already been made for Federal

prosecutions and this Court has condemned the practice as

fundamentally unfair to an accused.

This is particularly important in a case such as the

present where the evidence of guilt is very close. To

determine criminal liability, the jury had to weigh the word

of the arresting officer against that of the petitioner. The

defense presented other witness who disputed the police

version and the judgment of Petitioner’s credibility was the

essential question for the jury decision. The closeness of the

13

case when compared to the magistrate’s advice of the right to

remain silent given pursuant to Rule 5 clearly demonstrates

the fundamental unfairness of a trial in which the defendant

is impeached with his exercise of a constitutional right. In

such circumstances, it is clear that the error had a “significant

and injurious effect or influence in determining the jury’s

verdict.” Kotteakos v. United States, 328 U.S. 750, 776

(1946). Nor can it be reasonably said that the error was

harmless beyond a reasonable doubt. Chapman __y.

California, 386 U.S. 18 (1967)

C. Raffel v. United States Does Not Support the Panel

Decision

The panel opinion appears to rest its decision upon

the fundamental basis of Raffel v. United States, 271 U.S.

494 (1926). Petitioner suggests that this is a poor foundation

for the decision and an examination of 70 years of

subsequent opinions reveal Raffel does not justify the

violation of due process that took place in this case.

In Raffel, the Court was presented with a situation in

which a defendant was convicted at a second trial in which

he took the stand and was impeached with his decision not to

testify in his first trial. Asserting his privilege against self

incrimination as the reason for his decision not to testify at

the first trial, the Court, nevertheless, permitted the

conviction to stand even though it was based on a cross

examination (some of which was conducted by the trial court

itself) during the second trial which contained an

impeachment by silence. The Court concluded that Raffel’s

silence at the first trail was inconsistent with his testimony at

the second trial and that silence could be used to impeach the

credibility of his later representations. Jd. 498-499.

The panel’s apparent reliance on this decision is

incorrect for two reasons. The first is that the panel equates

the Petitioner’s silence in this case with that of Raffel. That

14

equivalence was rejected by the Court in Hale, 422 U.S. at

175. Nor has that argument been successfully raised in any

post Hale or Doyle cases.

The second reason that Raffel has no probative value

for the facts of the present case is that it was decided long

before either Miranda or the establishment or Rule 5 of the

Federal Rules of Criminal Procedure. Both of these post

Raffel developments in criminal procedure law establish

what today are viewed as fundamental principles and which

were never addressed in the Raffel decision. To bootstrap

Raffel to the present and apply it to the Petitioner’s case as

the panel opinion does is to ignore 70 years of refinement

that countless appellate reviews have produced. In fact, quite

a few of the Raffel opinion’s observations would no longer

pass muster under present guidelines. (e.g. “The safeguards

against self incrimination are for the benefit of those who do

not wish to become a witness in their own behalf and not for

those who do. /d at 499) Moreover, the underlying basis for

the decision in Raffel has been distinguished so often that it

provides no real basis for any current decision making. See,

Grunewald v. United States, 353 U.S. 391 (1957)[prejudicial

error to permit cross examination of defendant’s use of Fifth

Amendment privilege before grand jury]; Stewart v. United

S‘ates, 366 U.S. 1 (1960)[rejection of harmless error

argument by government in impeachment of defendant for

silence at earlier trial]; Johnson v. United States, 318 U.S.

189 (1943)[[where the claim of privilege is asserted and

unqualifiedly granted, the requirements of fair trial may

preclude any comment]. It is important to note that as early

as the Grunewald decision, a significant number of justices

indicated that Raffel had no more vitality and had been

overruled sub silentio. Grunewald vy. United States, 353 U.S.

at 426 (J. Black concurring).

To justify this Petitioner’s conviction on such a

discredited decision is a dangerous throwback to pre

Miranda days and ignores the protections that are given

15

every criminal defendant in the standard Rule 5 advice of

rights.

CONCLUSION

Wherefore, Petitioner respectfully requests this Court

to grant the writ of certiorari to the United States Court of

Appeals for the Fourth Circuit.

Respectfully submitted,

Kenneth M. Robinson*

Dennis M. Hart

Counsel for Petitioner

Anthony M. Baker

717 D Street, N.W.

Suite 400

Washington, D.C. 20004-2807

(202) 347-6100

* Counsel of Record

16

No.

CIn O) he

Supreme Court of the Chited States

October Term 1997

ANTHONY MARCELLUS BAKER,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Appendix to Petition for Writ of Certiorari

Kenneth M. Robinson

Counsel of Record

Dennis M. Hart

THE ROBINSON LAW FIRM

717 D Street, N.W.

Suite 400

Washington, D.C. 20004-2807

(202) 347-6100

Counsel for Petitioner

THE LEX GROUP ¢ 1205 East Main Street ¢ Suite 2 East ¢ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3256

TABLE OF CONTENTS

Appendix to the Petition

Opinion,

United States Court of Appeals

for the Fourth Circuit

Cubase Argue 2B, FIST on... .cessccscscscssiseosce App. |

EI NO aris ieccssicsca sesiicsntocinsiatiencesticasenasaciadia App. 7

App. i

PINES PEPE aT AH EI ERPS AR TELE ge eons ye PTS EAP aR

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

ANTHONY MARCELLUS BAKER,

Defendant-Appellant.

No. 96-4627

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Peter J. Messitte, District Judge.

(CR-94-361-PJM)

Submitted: June 3, 1997

Decided: August 28, 1997

Entered: August 28, 1997

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Kenneth M. Robinson, THE ROBINSON LAW FIRM,

Washington, D.C., for Appellant. Lynne A. Battaglia, United

States Attorney, Sandra Wilkinson, Assistant United States

Attorney, Greenbelt, Maryland, for Appellee.

App. |

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36(c).

OPINION

PER CURIAM:

Anthony Marcellus Baker appeals from his

conviction of being a felon in possession of a firearm, 18

U.S.C. § 922(g) (1994), for which he was sentenced to 240

months imprisonment. Baker claims, first, that he was

improperly cross-examined by the Government concerning

his pre-trial silence in violation of Doyle v. Ohio, 426 U.S.

610 (1976); and, second, that the trial judge coerced the jury

into rendering its verdict. Finding no error, we affirm.

United States Park Police stopped Baker in January

1994 for running a red light. The officer noticed a bulge in

Baker's pants which turned out to be a .32 caliber handgun.

Baker fled the scene before he was arrested and was not

indicted until September 1994. The district court granted

Baker's motion to suppress the firearm on the grounds that

the scope of the search was over-broad. Baker did not testify

at the suppression hearing. This court reversed the district

court, finding that it had improperly granted the motion to

suppress. United States v. Baker, 78 F.3d 135, 138 (4th Cir.

1996). Baker was then tried by a jury.

Baker testified at his trial, giving contradictory

testimony concerning the events on the evening he was

stopped by the park police. On cross-examination, the

Government's attorney asked Baker, in referring to the

hearing on Baker's suppression motion,"Now, Mr. Baker,

you didn't testify at that December hearing, did you?"

Baker's objection was sustained, and the district court gave a

App. 2

limiting instruction, admonishing the jury not to consider

Baker's prior silence as evidence and not to draw any

inference from the question or the answer. The following

exchange then took place:

Q. Mr. Baker, between the time of your arrest and the

charges in this case, until today . . . have you told

anyone from law enforcement, myself included, this

story that you told the jury here today?

A. Nobody from law enforcement, no.

Q. In fact, this is the first time that we've heard this

story, isn't it, Mr. Baker?

A. This was the first time I chose to testify.

Baker did not object to this line of questioning.

Following Baker's testimony, the defense rested.

The jury began deliberating at 11:50 a.m. on Friday.

At 3:35 that afternoon, the jury sent a note to the judge

stating that it was deadlocked. The judge denied Baker's

motion for a mistrial, instead sending a note to the jury to

"Please continue your deliberations and please save this

note." At 5:40 p.m., the jury sent another note stating that it

was still deadlocked and that "Juror No. 5 and No. 2 have

been excused for next week." Before excusing the jury for

the weekend, the judge stated that jurors 2 and 5 would not

be excused because "this case will take priority." On Monday

morning, the judge issued a modified Allen' charge. The jury

recessed at 10:10 a.m. and at 10:51 a.m. announced it had

reached a verdict. Baker appeals his conviction.

’ Allen v. United States, 164 U.S. 492 (1896).

App. 3

a. Doyle claim. Baker first claims that he was

deprived of a fair trial by the Government's questioning on

crossexamination both as to his failure to testify at the

suppression hearing and as to his failure to inform law

enforcement authorities of his exculpatory explanation of the

events surrounding his arrest. We find this claim to be

without merit. Due process is not violated when a defendant

who testifies in his own behalf is impeached with his prior

silence. Raffel v. United States, 271 U.S. 494 (1926). The

Supreme Court carved out an exception to this rule in Doyle

v. Ohio, 426 U.S. 610 (1976), where it held that the Due

Process Clause was violated by the use of the defendant's

silence, at the time of arrest and after receiving Miranda’

warnings, to impeach exculpatory testimony given for the

first time at trial. Nevertheless, Baker's claim with respect to

the prosecutor's questions regarding his failure to testify at

the suppression hearing fails for two reasons.

First, the Supreme Court has held that limited

questioning concerning a defendant's prior silence, followed

by a curative instruction and the absence of improper closing

argument, does not violate Doyle. Greer v. Miller, 483 U.S.

756 (1987). Here, the district court sustained Baker's

objection and quickly gave a curative instruction. Further,

the prosecutor made no reference to Baker's silence at the

suppression hearing in her closing argument.

Second, there is no Doyle error where the defendant

was not given Miranda warnings. Fletcher v. Weir, 455 U.S.

603, 607 (1982) ("In the absence of the sort of affirmative

assurances embodied in the Miranda warnings, we do not

believe that it violates due process of law for a State to

permit cross-examination as to postarrest silence when a

defendant chooses to take the stand."); see also Jenkins v.

Anderson, 447 U.S. 231, 240-41 (1980) (the use of prearrest

silence to impeach a defendant's credibility does not violate

Miranda v. Arizona, 384 U.S. 346 (1966).

App. 4

istics oct

SERRE Fetch s 2

the Constitution). Baker was never Mirandized--he fled the

scene before he was arrested and was indicted nine months

later, only after the park police officer identified him at an

unrelated traffic stop. Baker voluntarily surrendered to the

United States Marshal's Office and was never questioned by

the police.

Baker did not object to the second line of questioning

by the prosecutor. Accordingly, he waived appellate review

of this claim, absent plain error. Fed. R. Crim. P. 52; United

States v. Olano, 507 U.S. 725 (1993). Baker cannot show

any error--much less, plain error--because, under Fletcher,

the prosecutor's questions were not improper.

b. Allen charge. Baker claims that the judge

improperly coerced the jury to render a verdict by (1) giving

a modified Allen charge after the jury had twice indicated it

was deadlocked and (2) failing to apprise Baker of the jury's

numerical split prior to giving the modified Allen charge.

The necessity, extent, and character of any

supplemental instructions are matters within the district

court's discretion. United States v. Horton, 921 F.2d 540, 546

(4th Cir. 1990). The district court may provide a deadlocked

jury with a modified Allen charge as long as the charge was

fair, neutral, and balanced. See United States v. Sawyers,

423 F.2d 1335, 1342 n.7 (4th Cir. 1970) (setting forth an

acceptable modified Allen charge).

The judge instructed all members of _ the

jury--minority and majority--to reconsider their views in

light of the opinions of the other side. Additionally, Baker's

jury was instructed: "none of you should surrender your

honest conviction as to the weight or effect of the evidence

solely because of the opinion of your fellow jurors or for the

mere purpose of returning a verdict." We find that the

instruction was substantially similar to the instruction

approved by this court in Sawyers, 423 F.2d at 1342, and,

therefore, was not unduly coercive.

App. 5

Baker claims that the fact that the jury took only

forty-one minutes to reach a verdict establishes that it was

coerced by the supplemental instruction. However, the speed

with which a jury returns a verdict after receiving a modified

Allen charge is not decisive. See, e.g., Lowenfield v. Phelps,

484 U.S. 231 (1988) (fact that jury returned its verdict thirty

minutes after the court gave a supplemental instruction was

not coercive); United States v. Chigbo, 38 F.3d 543, 546

(11th Cir. 1994) (affirming conviction when verdict returned

fifteen minutes after the instruction). The fact that the jury

deliberated forty-one minutes after receiving the modified

Allen charge suggests that the jury listened to the others'

viewpoints rather than the minority simply being coerced

into agreeing with the majority. Cf. United States v. Rogers,

289 F.2d 433, 436 (4th Cir. 1961) (verdict few minutes after

Allen charge “hardly long enough to have permitted a

painstaking re-examination of the views which the minority

had held steadfastly until the charge was given").

Finally, Baker claims that the district court

committed reversible error by failing to disclose the

numerical split in the jury (nine to three) when it announced

for the second time that it was deadiocked. We disagree. A

modified Allen charge following disclosure of the jury split

is not inherently coercive. See United States v. Lorenzo, 43

F.3d 1303, 1307 (9th Cir. 1995) (Allen charge following

disclosure to district court judge of numerical split held

permissible); United States v. Elkins, 885 F.2d 775, 784

(11th Cir. 1989) (same).

Accordingly, we affirm Baker's conviction. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

the court and argument would not aid in the decisional

process.

AFFIRMED

App. 6

BER ha

U.S.C. 18 922 G

(g) It shall be unlawful for any person —

(1) who has been convicted in any court of , a

crime punishable by imprisonment for a term

exceeding one year;

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icnavibens a ship or transport in interstate or foreign commerce;

or possess in or affecting commerce, any firearm or

ammunition; or to receive any firearm or ammunition which

has been shipped or transported in interstate or foreign

commerce.

App. 7