# Petition for Writ of Certiorari — Baker v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1051

## Text

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

|

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

iil

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,

ee Ee 0 UMIED disp ccrecavinstonctcdcnbpepsakdessasicenvacabeaeunaaaies’n 12
STATUTES

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Fe ee CCE DP icnionsactcasciumctdldlaschincabipligsssqniocs ri Rel ETE 2
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1828%3A1. Public record. Not legal advice.