Petition for a Writ of Certiorari — United States v. Hale

Supreme Court brief1975

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IN.DEX

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inion below Ste SASS Pb enn nedadisbwenadusaoeae 1

anon ih cnc nines den tid i ts a is 1

on presented___...-..------------------- 2

astitutional provision involved__---2--------- 2

os escent tne ms de ink 0h a i china ean we tn me 2

sons for granting the writ__---------------- 5

' sion ie lieits x via ra nes ais 3 aie a ae Se a ee a es es tO es 13

sss sgn ts tt side anette vase on 1A

pendix B______________-_ aes 344A

pendix Ia caine dn iets leh aentsndied ab pest scion ani Sos 36A

Te nce amaandéemaweecnasenacee 37A

CITATIONS

4 Agnellino v. New Jersey, 493 F. 2d 714___--. 5,6

' Deats v. Rodriguez, 477 F. 2d 1023_______-__- 5

- Fowle v. United States, 410 F’. 2d 48________- 5

| Griffin v. California, 380 U.S. 609_-._------ 4, 9,13

| Grunewald v. United States, 353 U.S. 391____- 4,

. 9, 10, 11, 12, 13

_ Johnson v. Patterson, 475 ¥. 2d 1066, certiorari

denied, 414 U.S. 878_________----------- 5

~ McGautha v. California, 402 U.S. 183______- 8

_ Miranda v. Arizona, 384 U.S. 436__-_- 2, 4, 9, 12, 13

| Raffel v. United States, 271 U.S. 494_____- 7,8, 9, 10

| Robideau v. Rhay, 431 F. 2d 880_----------- 5

Stewart v. United States, 366 U.S. 1_____-_-- 9

(1)

| 858-042—74——1

ET EE EER

Cases—Continued

United States v. Brinson, 411 F. 2d 1057_--_-

United States ex. rel Burt v. State of New

Jersey, 475 F. 2d 234

United States v. Quintana-Gomez, : 488 F. 2d

1246

United States v. Ramirez, 44 F. 2d 950, certio-

rari denied, 404 U.S. 869

United States v. Semensohn, 421. F. Od 1206. _

Wilson v. United States, 149 U.S. 60

~ Constitution and statutes

United States Constitution, Fifth Amend-

ment

2, 4, 8, 10, 11, 12

_3481____..--------------------- 9

22 D.C. Code 2901_.....--------------+--- 2

§n the Supreme Gourt of the Gnited States

OctoBeR TERM, 1974

No. —

Unitrep StaTES OF AMERICA, PETITIONER

Vv.

Wiuiam G. HALE

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUM-

BIA CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the Court of Appeals for the District

of Columbia Circuit in the above-captioned case-

OPINION BELOW

The opinion of the court of appeals (App. A, infra,

pp. 1A-33A) is reported at 498 F. 2d 1038.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, pp. 34A-35A) was entered on May 21, 1974. On

August 1, 1974, the court of appeals denied a petition

for rehearing with a suggestion for rehearing en banc

(four judges dissenting) (Apps. C and D, infra, pp-

(1)

36A-38A). On August 26, 1974, Mr. Justice Marshall j

extended the time for filing a petition for a writ of

certiorari to and including September 30, 1974. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED

Whether the Fifth Amendment bars cross-examina-

tion of a defendant who has given exculpatory testi-

mony at trial as to why he failed to offer such

information at the time of his arrest.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment provides in pertinent part:

No person shall *.* * be compelled in any

criminal ease to be a witness against him-

self * * *,

STATEMENT

After a jury trial in the United States District

Court for the District of Columbia, respondent was

eonvicted of robbery, in violation of 22 D.C. Code

2901. Imposition of sentence was suspended, and he

was placed on probation for three years. On appeal,

the court of appeals reversed respondent’s conviction.

1. The government’s case rested largely on the testi-

mony of Lonnie Arrington, the ‘complaining witness,

who testified that respondent was among five men who

robbed him of $96 (Tr. 25-30). The record indicates

that soon after the robbery, respondent was arrested,

taken to the police station and informed of his rights

under Miranda v. Arizona, 384 U.S. 436, including

his right to remain silent. He was then searched

and found to be in possession of $158. At trial,

respondent testified on his own behalf and explained

his possession of the money by stating that his

estranged wife had received her welfare check that

day and had given him about $150 so that he could

purchase some money orders for her (Tr. 217-219).

In an effort to impeach this testimony, the prosecutor

on cross-examination led respondent to admit that he

had not offered that explanation to the police at the

time of his arrest (Tr. 259):

Q. Did you in any way indicate [to the po-

lice] where that money came from?

A. No, I didn’t.

Q. Why not?

A. I didn’t feel that it was necessary at the

time. -

Q. You were advised of your rights, were you

not?

A. Yes.

Immediately following this exchange, the district

court cautioned the jury that the questioning was im-

proper and that they could disregard it.’

*The court stated (App. A, infra, p. 17A):

“He is not required to indicate where the money came from.

There is no responsibility on his part in regard to that. * * *

lindicated to the jury that it is clearly an inappropriate ques-

tion. You may disregard it, ladies and gentlemen. The defend-

at is not required to give any explanation whatsoever at the

time of his arrest.”

The majority in the court of appeals rejected the notion that

this caution to the jury overcame the effect of the impropriety

it found in the prosecutor’s questions (App. A, infra, p. 13A).

We, of course, disagree with the statement of the district court

td the conclusion of the court of appeals that the questioning

2. In a 2-1 decision, the court of appeals. ruled that

this, cross-examination was improper and required a

new trial. The majority reasoned that Griffin v. Cali-

fornia, 380 U.S. 609, barring comment to the jury

upon a defendant’s failure to testify at trial, similarly |

barred disclosure of a defendant’s assertion of his

Fifth Amendment privilege during police interroga-

tion. Moreover, since respondent was told that he had

a right to remain silent during interrogation, his fail-

ure to explain to the police the source of the money

found on his person was considered to be not incon-

sistent with his. subsequent trial testimony. The ma-

jority relied in this regard upon Grunewald v. United

States, 353 U.S. 391, in which this Court barred cross-

examination of a defendant as to the prior assertion

of his Fifth Amendment privilege before a grand

jury. | ! .

Judge Wilkey dissented on the ground, tnter alia,

that a defendant who testifies at trial waives the priv-

ilege against self-incrimination and is subject, as any

other witness, to extensive cross-examination calcu-

lated to test his credibility (App. A, infra, pp. 17A-

31A). Relying upon Harris v. New York, 401 US.

222, in which the Court held that a defendant could

be impeached by statements given the police in the

absence of sufficient Miranda warning, Judge Wilkey

reasoned that a defendant’s failure to offer the police

an explanation of incriminating circumstances should

be disclosed to the jury in order to enable it reason-

was improper. In any event, we do not rely here on any argu

ment that the district court’s caution to the jury was sufficient

to obviate the error, if error there was. See note 2, infra.

ably to evaluate the credibility of the defendant’s trial

testimony.’

REASONS FOR GRANTING THE WRIT

This case presents the important question whether

the prosecution can’ test the credibility of a defend-

ant’s trial testimony by bringing to the attention of

the jury his failure to offer the same information

at the time of- arrest. The circuits are in sharp con-

flict on this question. In addition to the court below,

the Second, Sixth, Ninth, and’ Tenth Circuits have

barred cross-examination of a defendant that dis-

closes his silence during police interrogation.’ The

Third and Fifth Circuits, however, have permitted

such cross-examination.*

* Judge Wilkey also relied for his dissent on the alternative

ground, rejected by the majority (App. A, infra, pp. 12A-

154), that, even if the questioning were deemed improper, the

defect was harmless beyond a reasonable doubt and therefore

did-not) warrant reversal of réspondent’s conviction (App. A,

infra, pp. 31A-33A). While we agree with Judge Wilkey’s

analysis of this, issue, the controversy on the point involves the '

application of an essentially undisputed standard to the facts

of a particular case. Accordingly, we do not believe that the

issue is appropriate for presentation to the Court in this case,

and we do not seek review of that aspect of the court of

appeals’ holding. .

*See United States v. Semensohn, 421 F. 2d 1206 (C.A. 2);

United States v. Brinson, 411 F. 2d 1057 (C.A. 6); Robideau

y. Rhay, 431 F. 2d 880 (C.A. 9); Fotole v. United States, 410

F. 2d 48 (C.A. 9); Johnson v. Patterson, 475 F. 2d 1066 (C.A.

10), certiorari, denied, 414 U.S. 878; Deats' v. Rodriguez, 477

F, 2d 1023 (C.A. 10).

*See United States ex rel. Burt v. State of New Jersey, 475

F. 2d 234 (C.A. 3); Agnellino v. New Jersey, 493 F. 2d 714

— 4C.A, 3); United States v. Quintana-Gomez, 488 F. 2d 1246

The existence of an adequate opportunity to test

the credibility of a defendant who takes the stand in

his own behalf is crucial to the mission of a trial—

accurate ascertainment of the truth. In disallowing a

‘form of cross examination that exposes a testifying

defendant’s prior failure to explain seemingly incrim-

_ inating circumstances, the court below effectively ren-

dered a defendant immune from one of the “tradi-

tional truth-testing devices of the adversary process.”

Harris v. New York, 401 U.S. 222, 225.

(C.A. 5); United States v. Ramirez, 441 F. 2d 950 (C.A. 5),

certiorari denied, 404 U.S. 869. .

, The position of the Third Circuit is not altogether clear. In

Burt, supra,,the defendant testified that the shooting death for

which he had been charged with murder had been accidental.

The prosecution elicited on cross-examination the fact that,

when he had been arrested soon after the shooting for an

‘unrelated crime, the defendant had not sought to secure assist-

ance for the victim. The lead opinion in Burt held that the

cross-examination was permissible because the defendant's

silence during police interrogation had occurred before he stood

of the murder. The other two members of the panel,

however, issued a concurring opinion on the ground that Harris

allows impeachment by prior silence at a police station.

In Agnellino, supra, the defendant made statements to the

police but failed to indicate the source of stolen goods that

were found on his property. He testified at trial that he had

purchased them. During closing argument the prosecutor com-

mented upon’ the defendant’s prior failure to provide this in-

‘formation to the police. The lead opinion, relying upon the

concurring opinions in Burt, held that the prosecutor’s com-

ment was permissible. The other'two members of the panel,

however, concutred on the basis that what the defendant had

told the police was inconsistent with his trial testimony. They

viewed Burt as a situation iri which the defendant’s conduct

in not seeking assistance for the shooting victim was incon-

sistent with his testimony at trial that the shooting had been

accidental.

Certiorari should be granted to resolve this conflict

among the circuits in an important area of criminal

procedure.

1. A defendant who takes the stand puts himself in

a fundamentally different position from one who does

not. Once on the stand he is subject like any other

witness to cross-examination designed to assure the

reliability of his testimony: ‘“There is a sound policy

in requiring the accused who offers himself as a wit-

ness to do so without reservation, as does any other

witness.” Raffel v. United States, 271 U.S. 494, 499. A

defendant’s alibi or exculpatory testimony—often cen-

tral to his case—should not be given special immunity

from impeachment. Once he testifies, he may be cross-

examined as to any matters reasonably related to the

subject of his direct examination—including matters

which otherwise could not be commented upon, such as

prior convictions, Spencer v. Texas, 385 U.S. 554, 561;

refusals to testify on his own behalf at prior trials,

Raffel v. United States, supra; or inconsistent state-

ments made during police interrogation without prior

Miranda warning, Harris v. New York, supra.

A defendant’s silence during police interrogation

should be no exception to this principle. Although it

may be impermissible for the prosecution to introduce

as evidence of guilt the fact that an accused failed to

testify or remained silent, where he testifies a jury

should be permitted to assess the credibility of his

story by learning that he is telling it to the authorities

for the first time in court.

558-042—74—__2

eens

Contrary to the assertion of the court below, it

seems to us speculative and even unlikely as an em-

pirical matter that a defendant will be deterred from

invoking his Fifth Amendment privilege during police

interrogation by the mere possibility that he might

wish to, waive it at trial and that, if he did so, he

might be called upon to explain why he had not of-

fered his story to the authorities during interrogation.

But even if it had some such effect, it does not follow

that this represents an impermissible ‘“‘penalty” on the

exercise of the constitutional right; rather, we submit

that it represents a proper consequence of the defend-

ant’s election to withhold any explanation of suspi-

cious circumstances from the police, while choosing to

provide one at trial. “The safeguards against self-

incrimination are for the benefit of those who do not

wish to become witnesses in their own behalf and_not

for those who do.” Raffel, supra, 271 U.S. at 499.

Nor is the defendant’s decision whether to testify at

trial any more “‘fettered” by the possibility that he

may be asked to explain why he had not before offered

his story than it is by the possibility that he may be

asked about prior convictions or refusals to testify on

his own behalf at prior trials. “It does no violence to

the privilege that a person’s choice to testify in his

own. behalf may open the door to otherwise inadmis-

sible evidence which is damaging to his case.” Me-

* Gautha vy. California, 402 U.S. 183, 213.

On the other hand, having chosen to waive the priv-

ilegé at trial, a defendant should not then be per

Smifted to take advantage of his prior invocation of it

by: having his present testimony immunized from ac-

curate evaluation by a particular line of probative

inquiry. “The shield provided by Miranda cannot be

perverted into a license to use perjury by way of a

defense * * *.” Harris v. New York, supra, 401 U.S.

at 226.

2. Griffin v. California, 380 U.S. 609, and Miranda

v. Arizona, 384 U.S. 436, both relied upon by the

majority below. are not inconsistent with this princi-

ple. Griffin, barring comment to the jury upon a.

defendant’s failure to testify, did not overrule Raffel,

supra, which permitted cross-examination of a defend-

ant as to why he refused to take the stand at a prior

trial when his purpose in testifying was to rebut a

witness who offered the same testimony at both trials.’

Similarly, Miranda’s dictum that “[t]he prosecution

may not * * * use at trial the fact that [a defendant]

stood mute or claimed his privilege in the face of

accusation * * *’’ (384 U.S. at 468, n. 37) is, in light

’Since at the time Raffel was decided it was already the

rule in federal courts that no comment could be made upon a

defendant’s failure to take the stand, see Wilson v. United

States, 149 U.S. 60; 18 U.S.C. 3481, it seems clear that the

Court did not intend to overrule Raffel or even call its holding

into question by its ruling in @riffin.

Nor is Stewart v. United States, 366 U.S. 1, cited by the

majority below, inconsistent with Raffel. In Stewart, a defend-

ant who pleaded not guilty by reason of insanity took the

stand and made various unintelligible statements. During cross-

examination the prosecutor elicited the fact that the defendant

had not testified during two previous trials, which had resulted

in convictions that were reversed on appeal. In ruling this

cross-examination improper, the Court noted that neither Raffel

nor Grunewald was applicable, since the cross-examination in

Stewart sought to discredit the claim of insanity rather than

impeach the defendant's testimony.

ee sae

—

of Harris’ holding that statements improperly ob-

tained may nevertheless be used for impeachment,

correctly understood as a bar to the use of a defend-

ant’s silence during interrogation in the government’s

case in chief. But—following the logic of Raffel and

Harris—it would not prohibit asking a defendant on

cross-examination, for the purpose of impeaching his

trial testimony, why he remained silent at the time of

arrest. ‘

3. Accordingly, once a defendant takes the stand in

his own behalf, the Fifth Amendment does not bar

reference to his prior silence for the purpose of im-

peaching his testimony. The Fifth Amendment limits

such cross-examination only when its prejudicial im-

pact will outweigh its probative value.

Thus, in Grunewald v. United States, 353 U.S. 391,

also relied upon by the majority below, this Court

barred cross-examination of a defendant as. to his

silence before a grand jury, not because the defend-

ant had there asserted his Fifth Amendment privilege,

but because, in the circumstances of the case, the pro-

bative value of the silence was thought to ‘be out:

weighed by its potential prejudicial impact upon the

jury (id. at 420):

[W]e may assume that under Raffel [the

defendant] in this case was subject to cross-

examination impeaching his credibility just like

any other witness, and that his Fifth Amend-

ment plea before the grand jury could not carry

over any form of immunity when he volun-

tarily took the stand at the trial. This does not,

however, solve. the question whether in the

particular circumstances of this case the cross-

examination should have been excluded because

its probative value on the issue of [the de-

fendant’s] credibility was so negligible as to

be far outweighed by its possible impermissible

impact on the jury.

The Court determined that the defendant’s silence be-

fore the grand jury was not probative, in that it was

not inconsistent with his testimony at trial. Had the

defendant answered questions put to him before the

grand jury in the same way he subsequently answered

them at trial, he would have incriminated himself,

since an unexplained admission before the grand jury

that he knew one of the co-defendants would have

linked him with a criminal conspiracy. Id. at 422.

Moreover, by the time he refused to answer the grand

jury’s questions, the defendant had already secured

the advice of counsel, and the grand jury had already

heard testimony from his co-defendants. In these cir-

cumstances, the Court reasoned, ‘‘many innocent men

who know that they are about to be indicted will re-

fuse to help create a case against themselves * * *.”

Id. at 423.

Looking to the other side of the balance, the Court

in Grunewald feared that knowledge of a defendant's

refusal to testify on the specific Fifth Amendment

ground that his answers might tend to incriminate

him would prejudice the jury against him. Jd. at 424.

“Weighing the factors,” the Court concluded that it

was prejudicial error for the trial court to permit

ross-examination of the defendant on his invocation

of the Fifth Amendment privilege before the grand

jury.

Here, however, the balance between probative value

and prejudicial impact tips in the other direction.

Had the respondent explained to the police that his

wife gave him the money, as he subsequently ex-

plained at trial, he would not have incriminated him- |

self. Thus there is reason to suppose that, even after

receiving the Miranda warnings, he might well have

offered such an explanation. His failure under these

circumstances to explain to the police the source of

the money found on his person soon after the robbery

therefore cast some real doubt upon his explanation at

trial. Moreover, his interrogation occurred soon after

he was apprehended—hefore he had any firm idea

that evidence was being gathered against him. Thus,

unlike the defendant in Grunewald, respondent was

not so far along in the criminal process that his re-

fusal to provide an explanation was likely to reflect a

tactical decision.

Moreover, cross-examination in the instant case pre-

sented little chance of prejudice. The jury was not

told that respondent had remained silent before the

police, or that he had invoked his Fifth Amendment

privilege.’ Rather, the government’s cross-examination

merely disclosed that respondent had not explained to

the police the circumstances surrounding his posses-

sion of the money. Respondent replied at trial that he

had not offered the explanation to the police because

* Indeed, it may well be questioned whether, strictly speaking.

the right to stand silent before the police is directly derived from

the privilege against self-incrimination or has other sources, since

the right of silence is not, unlike the ordinary invocation of the

privilege, contingent upon any claim that a response might be

incriminating.

—

“he didn’t feel it was necessary at the time.” The jury

might infer from this colloquy that the defendant was

not telling the truth about the source of the money.

It is unlikely, however, that the jury would infer from

this that he had remained silent before the police be-

cause he feared he would otherwise incriminate him-

self. As this Court said in Griffin, supra, ‘‘[w]hat the

jury may infer, given no-help from the court, is one

thing. What it may infer when the court solemnizes

the silence of the accused into evidence against him is

quite another.” 380 U.S. at 614.

In sum, the decision below not only misapplied

Griffin, Miranda, and Grunewald to the circumstances

of this case, but in so doing it created an unwarranted

immunity from cross-examination for a defendant

who chooses to take the stand.

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Henry E. PErersEN,

Assistant Attorney General.

Rosert B. REIcu,

Assistant to the Solicitor General.

JEROME M. Fert,

Rosert H. PLaxico,

Attorneys.

SEPTEMBER 1974,

ESM IAT SEMEL IRE I ERIE EINECS LNT SLY SESS TIRE

APPENDIX A

United States Court of Appeals for the District of

Columbia Circuit

No. 72-1848

UNITED STATES OF AMERICA

FLEMMING ANDERSON, APPELLANT

No. 72-2066

UNITED STATES OF AMERICA

Vv.

WirwtamM G. Hak, APPELLANT

Appeals from the United States District Court for

the District of Columbia

Decided May 21, 1974

Louis Briskman* with whom*Sherman L. Cohan, :

Larry Ritchie, and Alan Gover* (all appointed by this

court) were on the brief, for appellants.

David G. Larimer, Assistant United States Attor-

ney, with whom Harold H. Titus, Jr., United States

Attorney, John A. Terry and John R. Dugan, Assist-

ant United States Attorneys, were on the brief, for

appellee. :

Before: BazELon, Chief Judge, Wispom**, United

States Circuit Judge for the Fifth Cireuit, and Wi-

KEY, Circuit Judge.

*Entered appearance as student counsel pursuant to Rule

20 of the General Rules of this court.

**Sitting by designation pursuant to Title 28 U.S.C. § 291(a).

(1A)

558-042—_74—_-3

—

Opinion for the Court filed by Chief Judge Bazetoy.

Dissenting Opinion filed by Circuit Judge W1ILKEY.

Bazeton, ChiefJudge: In a joint trial appellants

were convicted by a jury of robbery. Anderson re-

ceived a two to eight year sentence; imposition of

Hale’s sentence was suspended, and he was placed on

probation for three years. Hale seeks reversal on the

ground that the prosecutor impermissibly sought to

elicit his reason for not asserting his alibi to the police

when arrested. Anderson seeks reversal on the ground

that he was prejudiced by several comments in Hale’s

closing argument. We reverse Hale’s conviction, and

affirm Anderson’s.* .

The government’s case rested largely on the testi-

mony of Lonnie Arrington, the complaining witness.

Arrington testified that on June 1, 1971, he was on his

way to purchase a pair of shoes when he stopped to.

chat with Hale, whom he had seen in the neighhbor-

hood, but did not know by name. Hale then followed

him into the shoe store. Upon leaving, Arrington was

aceosted and robbed by a group of men. He immedi-

ately reported the robbery to the police. At first he

claimed that $65 had been stolen, but later, after

checking with his wife, he changed the figure to $96.

While waiting for the police to escort him through the

neighborhood in search of his attackers, Arrington

noticed two men, and shouted “‘there go [sic] a guy ©

that was in the robbery.’’ When the police ran toward

the two men, they fled. Upon their capture, Arrington

1Both appellants argue that the trial court’s refusal to

grant a motion for judgment of acquittal was erroneous since

the testimony of the complaining witness was “inherently in-

credible.” We find sufficient evidence to sustain the verdicts. The

question of credibility was for the jury. See, e.g., Bush v.

United States, 375 F. 2d 602 (D.C. Cir. 1967).

identified Hale as one of the robbers. Several months

later, Arrington picked out Anderson from a group of

photos shown to him by the police, and then identi-

fied him at a lineup.

The arresting officer testified that Hale had $123

in his pocket and $35 in his wallet when arrested. He

also claimed that Arrington had stated, before Hale

had been arrested, ‘‘that he believed one of [the rob-

bers] was a man by the name of Billy Hale.” This

testimony directly contradicted Arrington’s earlier

testimony to the effect that he did not “tell the police

{Hale’s name], because I didn’t know if it was [him]

or not.’’ ?

Hale took the stand in his own defense and testified

that he had encountered Arrington on the day in ques-

tion. He asserted, however, that after separating from

Arrington he was approached by three men who asked

if Arrington had any money, and that he replied he

“didn’t know.” Hale claimed that he then went to the

Narcotics Treatment Center where he remained dur-

ing the time of the alleged robbery.’ He left the

Center with a friend who subsequently purchased

narcotics. Shortly after the purchase, the two men

* Arrington also stated that there was a witness to the rob-

bery, who was never identified, who had told him that one of

the robbers was named “Billy Hale or Bobby Hale.” Although

he initially testified that he did not identify Hale by name to

the police, his subsequent testimony is confused. Counsel for

Hale asked: “So you neglected to mention to the police that

one of the individuals had given you the name of one of the

| Tobbers, is that right?” And Arrington answered, “I told

them.” The record dges not reveal what it is that Arrington

told the police.

- An administrator from the Center testified that his records

indicated that Hale had visited the Center on the day in ques-

tion, but that they did not reveal the time of the visit.

— i ata PELMIREELET A FILES TOIT RR

——

| 4A

were approached by the police, and Hale fled because

he feared another drug conviction.‘

Hale also testified that his estranged wife had re-

ceived her welfare check on the day in question, and

that she had given him about $150 so that he could

purchase some money orders for her as he had done in

the past.’ His wife corroborated this testimony.

Anderson presented no evidence,

II—Hate’s Ciaim

Appellant Hale argues that the trial court com-

mitted reversible error in failing to grant his motion

for a mistrial after the prosecutor, on cross-examina-

tion, elicited from Hale an admission that he had

not explained to the police the presence of $158 found

on his person at the time of arrest. We find that: (A)

the prosecutor’s question was constitutionally imper-

missible; and (B) the court’s failure to declare a mis-

trial was prejudicial error. ;

‘ . A,

The record indicates that after arrest appellant was

taken to the police station and informed of his rights

under Miranda v. Arizona, 384 U.S.-436 (1966), in-

cluding his “right to remain silent.’’* He was then

searched and found in possession of $158. A police

‘Hale claimed that his previous conviction resulted from be-

ing arrested in the presence of a friend who was in possession

of narcotics, . ;

‘The owner of a local liquor store testified that he knew Hale,

and that Hale had purchased money orders from him on sev-

eral occasions.

*Tr. at 259.

interrogator thereupon asked ‘‘[w]here did you get

the money ?” Hale made no response.’ __

At trial, in an effort to,impeach Hale’s testimony

that he was carrying a large sum of money because

his wife had received her welfare check and had.asked

him to purchase some money orders for her, the prose-

cutor led Hale to admit that he had not alleres that

explanation to the police at the time of his arrest:

Prosecutor. Did you in any way indicate [to.

‘the police] where the money came from?

Hate. No, I didn’t. '

Prosecutor. Why not? }

Hate. I didn’t feel it was necessary at the

time.*

In Miranda, after holding that a defendant had a

right to be advised that he could remain silent in the

face of police interrogation, the Supreme Court went

on to note: = |

In accord with our decision today, it is imper-

' missible to penalize an individual for exercising

his Fifth Amendment privilege when he is

under police custodial interrogation. The prose-

custion may not, therefore, use at trial the fact

that he stood mute or claimed his privilege in

the ‘face of accusation. 384 U.S. at 468 n. 37

(emphasis supplied).°

Relying on this dictum, several Circuits,” including

"Tr. at 262.

*Tr. at 259, °

*See also Schmerber y. California 384 U.S. 757, 765-66 n. 9

(1966). / cae

” See, e.g., Fowle y. United States, 410 F. 2d 48 (9th Cir.

1969); United States v. Brinson, 411 F. 2d 1057 (6th Cir.

1969) ; United States v. Semensohn,'421 F, 2d 1206 (2nd Cir.

1970). See also Fagundes vy. United States, 340 F, 2d 673

(Ist Cir. 1965). But see Sharp y. United States, 410 F. 2d 969

(5th Cir. 1969). The Sharp, majority inexplicably omits ref-

erence to the portion of Miranda at issue despite forceful

reliance on it by Chief Judge Brown in dissent. 410 F. 2d at

972.

3 —

’ 6A

our own,” have held that cross-examination of the

sort in question in this case was improper.”

Recently, however, one Circuit has held,” and an-

other has implied," that Harris v. New York, 401 U.S.

" Gillison vy. United States, 399 F. 2d 586 (D.C. Cir. 1968).

“Our dissenting colleague argues that the Miranda dictum

_is inapplicable to the facts of this case. The record, how-

ever, clearly indicates otherwise. Appellant was under police

interrogation, the sort of “accusation” to which Miranda

referred. See 384 U.S. at 444 & 468 n. 37. And, when he

was asked “[w]here did you get the money?” he stood “mute.”

This fact was then “uwse[d]” against him “at trial.” As the

cases cited in ‘note 10, supra, demonstrate, the A/‘randa dictum

applies precisely to these facts. Nor would it matter, despite the

suggestion by the dissent, that Hale answered some questions

before: remaining silent: “[T]Jhere is no room for the conten-

tion that the privilege i is waived if the individual answers some

questions or gives some information on his own prior to in-

voking his right to remain silent * * *” Miranda, supra, 384

U.S. at 475-76. In fact,'the record does not reveal whether ap-

pellant answered any questions or made any statements.

13 United States v. Ramirez, 441 F. 2d 950 (5th Cir. 1971).

“In United States ex rel. Burt v. New Jersey. 475 F. 2d 234

(3rd Cir. 1973), a defendant was arrested for a crime other

than the homicide at issue in the appeal before the Third Cir-

cuit. At trial he explained that the homicide was accidental.

The court held that defendant was properly impeached by his

silence at the police station because he had not been accused of

committing any homicide, and therefore should have notified the

police if he knew about an accidental homicide. Two judges

issued a concurring opinion seemingly:on the ground that

Harris allows impeachment by prior silence at the police station.

In a subsequent case a different panel of the same Circuit

held that it was improper to impeach a defendant by pointing

out that he invoked another of his Miranda rights, namely, the

right to an attorney., United States ex rel. Macon v. Yeager, 416

'F. 2d 613 (3rd Cir. 1973). In the face of these two decisions 4

district court in the Third Circuit has recently held that a de-

fendant can be impeached by his prior silence on/y when police

interrogation does not ¢oncern the crime for which the de-

tie

222 (1971), undercuts the portion of Miranda quoted

above, and permits cross-examination regarding a de-

fendant’s refusal to offer an alibi or explanation to

his police interrogators.

In Harris the Court held that a defendant could be

impeached by ‘‘prior inconsistent utterances” made at

the time of his arrest even when they were made be-

fore the defendant was adequately apprised of his

rights. The Fifth Circuit extended the Harris ration-

ale to approve “the right of the prosecution to show

{a defendant’s] prior inconsistent act of remaining

silent * * *.’”’** The Tenth Circuit, on the other hand,

has disagreed with the Fifth Circuit observing that:

“silence at the time of arrest is not an incon-

sistent or contradictory statement. Silence at

the time of arrest is simply the exercise of a

constitutional right that all persons enjoy with-

out qualification.”

We agree with the Tenth Circuit.

The premise underlying Harris is that if a defend-

ant voluntarily gives statements to the police that

contradict his trial testimony those statements are ad-

missible because they are obviously relevant for assess-

ing credibility. When, however, a defendant is in-

formed that he has a right to remain silent, and then

fendant is subsequently indicted. The district court then con-

cluded that cross-examination of the sort at issue in this case

Was improper notwithstanding Harris. United States vy. Hol-

land, 360 F. Supp: 908 (E.D. Pa. 1973).

“United States vy. Ramirez, 441 F. 24 950, 954 (Sth Cir.

1971) (emphasis supplied). .

Johnson v. Patterson, 475 F. 2d 1066, 1068 (10th Cir. 197%).

With respect to Ramirez, supra, the ‘Tenth Circuit said, “[t]}he

premise of /?amirez is that silence at the time of arrest is an

act inconsistent with the testimony given at trial. * * * We sim-

Ply deny the validiiy of the premise.” 476 F. 2d at 1068 n. 3.

— Bee also Deats v. Rodriguez, 477 F. 2d 1023 (10th Cir, 1973).

8a =

exercises that right, there is nothing inconsistent if

he subsequently offers exculpatory testimony at trial.

Virtually the same issue was considered in Grunewald

v. United States, 353 U.S. 391. (1957). There, peti-

tioner refused to answer several questions put to him

before the grand jury “on the ground that the answers

would tend to incriminate him and that the Fifth

Amendment therefore entitled him not to answer.” ™

At trial these same questions were answered “‘in a way

consistent with innocence,” and “the Government was

allowed [for impeachment purposes] * * * to bring

out in cross-examination that petitioner had pleaded

his privilege before the grand jury as to these very

questions.” * The Court found that the exercise of the

privilege was ‘‘wholly consistent with innocence,” and

therefore concluded, without dissent, that there was

“no inconsistency’’ to support the cross-examination.”

The Court relied on three factors: (a) petitioner re-

peatedly maintained his innocence before the grand

jury; (b) a grand jury inquiry, unlike a trial, is in

the nature of a secret proceeding, and “[i}mnocent

men are more likely to plead the privilege in secret

proceedings, where they testify without advice of

counsel and without opportunity for cross-examina-—

tion, than in open court proceedings * * *”;* (¢)

“most important,’ at the time petitioner appeared

** 353 U.S. at 416. In the instant case Hale did not decline

to answer on the ground that his answers might tend to

incriminate him, but simply remained silent in the face of the

police interrogator’s instruction that he had “a right to remain

silent.”

8 353 U.S. at 417.

U.S. 1, 7 n. 14 (1961).

7° 353 U.S. at 422-493.

—

before the grand jury he was “‘already considered a

potential defendant” and therefore “it was quite nat-

ural for him to fear that he was being asked ques-

tions for the very purpose of providing evidence

against himself,’’ *

_ These reasons have even greater validity in the

present case: (a@) while the record does not disclose

whether Hale insisted upon his innocence at the time

of arrest, it clearly reveals that he steadfastly main-

tained his innocence throughout the proceedings; (b)

police interrogation may be viewed as more “*secret’’

than a grand jury proceeding which is conducted on

the record and in the presence of the prosecutor and

grand jurors. Miranda’s rules were aimed precisely at

dangers presented by the secret nature of police in-

terrogation ; * (c) Hale. was more clearly a ‘*potential

defendant”’ than Grunewald since he had been identi-

fied by the victim as one of the robbers, and had been

arrested by the police on Suspicion of the instant

offense.

In sum, application of the principles enunciated in

Grunewald compels a finding that, as a matter of law,”

there was nothing inconsistent between Hale’s silence

in interrogation and his alibi at trial. Thus, the basic

** 353 U.S. at 423.

= See Miranda, supra, 384 U.S. at 445 (“The difficulty in

depicting what transpires at such interrogations stems from the

fact that in this country they have largely taken place in-

communicado.”).

*The Grunewald Court acknowledged that “the question

whether a prior statement is sufficiently inconsistent to be al-

lowed to go to the jury on the question of credibility is usually

within the discretion of the trial court. But where such eviden-

tiary matter has grave constitutional overtones, as it does here,

We feel justified in exercising this Court's Supervisory control

** *” 353 U.S. at 423-404.

558-042—74-_ 4

10a

premise required for triggering the H arris rationale i is

absent.”

Even if it could be nell that appellant’s silence at

the police station was inconsistent with his testimony

at trial, Harris would nevertheless be inapplicable in

the present circumstances. In Harris the accused did

not exercise his constitutional right to remain silent,

but rather spoke, albeit without first being advised of

his rights. In the instant case, on the other hand, the

accused explicitly availed himself of his right to re-

main silent. The Supreme Court has proscribed com-

ment by a court or prosecutor on the fact that a

defendant did not testify at trial on the ground that

such comment ‘‘cuts down on the privilege by making

its assertion costly.” Griffin v. California, 380 U.S.

609, 614 (1965). The Court, relying upon this analysis,

then ruled in Miranda that it is ‘‘impermissible to

penalize an individual for exercising his Fifth Amend-

ment privilege when he is under police custodial

interrogation.” * The rationale for this rule was artic-

ulated by Justice Black in his Grunewald coneurrence:

*% See Fowle v. United States, 410 F. 2d 48, 51 (9th Cir. 1969)

(“Surely * * * [petitioner’s] silence was no more contradictory

of his later testimony than was the silence of [the petitioner in

Grunewald].”) ; Johnson v. Patterson, 475 F. 2d 1066 (10th Cir.

1973).

25 384 T).S. at 468 n. 37. See Gillison v. United States, 399 F.

9d 586, 587 (D.C. Cir. 1968) (“The distance between [@rifin]

and the prosecutor’s comments here * * * is infinitesimal.”) ;

Fowle v. United States, 410 F. 2d 48, 51-55 (9th Cir. 1969);

Johnson v. Patterson, 475 F. 2d 1066, 1067-68 (10th Cir. 1973).

See generally Spevak v. Klein, 385 U.S. 511 (1967); United

States exw rel. Macon v. Yeager, 476 F. 2d 613, 616 (ard Cir.

1973) (“Griffin holds broadly that at least in the criminal con-

text, the relevant question is whether the particular defendant

has been harmed by the state’s use of the fact that he engaged

in constitutionally protected conduct * * *”) (emphasis im

original).

—

ila

[There are] no special circumstances that

would justify use of a constitutional privilege

to discredit or convict a person who asserts it.

The value of constitutional privileges is largely

destroyed if persons can be penalized for rely-

ing on them. It seems peculiarly incongruous

and indefensible for courts which exist and act

only under the Constitution to draw inferences

of lack of honesty from invoeation of a privi-

lege deemed worthy of enshrinement in the

Constitution. 353 U.S. at 425-26.

Nothing in Harris undercuts this fundamental consti-

tutional principle since Harris did not involve asser-

tion of the constitutional right.” |

Our conclusion that the prosecutor’s question was

improper is buttressed by the fact it would be grossly

** The dissent relies heavily on Raffel v. United States, 271

U.S. 494 (1926), where the Court held that a defendant who

testifies at his second trial, but who did not testify at the

first trial, may be impeached by his prior silence when his

sg ea in testifying is to deny some statements attributed

to him by a witness who has offered the same testimony at -

both trials. In Grunewald, supra, the Court explicitly declined

to reaffirm Raffel. 353 U.S. at 421. Four Justices concurring in

Grunewald indicated that Raffel should be overruled. The ra-

tionale of that concurrence provided the framework for the

Court’s subsequent decision in Griffin. Accordingly, there is a

serious question whether Raffel has any remaining vitality. Sec

Note, Use of Silence, 33 Md. L. Rev. 363, 367 n. 21 (1973).

See also Stewart v. United States, 366 U.S. 1 (1961) (cannot

attack witness’ demeanor by introducing fact that he failed

to testify at former trials).

In any event, Raffel is clearly distinguishable from the pres-

ent circumstances because there the petitioner was impeached

by his refusal to testify at a former trial, whereas in the in-

stant case appellant declined to speak with police interro-

.gators. There are good reasons why a defendant would refuse

to speak to the police in a proceeding that is off the record,

and at a time when he is without the advice of counsel, and

then decide to testify at trial. See Grunewald, supra.

—

12a

unfair to advise an accused simply that he had “a

right to remain silent,’’ and then use his silence

against him at trial without at the very least having

also informed him that if he chooses to exercise his

right he may subsequently be impeached by that fact.

The Sixth Circuit noted almost fifty years ago that if

an accused’s silence is to be used against him he

“should be told, ‘If you say anything, it will be used

against you; if you do not say anything, that will be

used against you.’”*” The Supreme Court embraced

these principles in Johnson v. United States, 318

U.S. 189 (1943), where a defendant who testified was

allowed to assert his privilege against self-incrimina- -

tion as to some questions without having been told that

the prosecutor would be permitted to comment upon

this assertion. The Court ruled that even if it was

error to allow petitioner to invoke his privilege, it was

nonetheless improper to permit prosecutorial comment

because the defendant was thereby “deprive[d] * * *

of an intelligent choice between claiming or waiving

his privilege.”

‘The government argues that the error was harmless

since the trial court interrupted the prosecutor and in-

* McCarthy v. United States, 25 F. 2d 298, 299 (6th Cir. 1928).

See also Johnson v. Patterson, 475 F. 2d 1066 (10th Cir.

1973); United States v. Brinson, 411 F. 2d 1057 (6th Cir.

1969); Fowle v. United States, 410 F. 2d 48 (9th Cir. 1969).

*8 318 U.S. at 198. The Court noted:

“Elementary fairness requires that an accused not be misled —

on [th]is score. If advised by the court that his claim of privi- |

lege though granted would be used against him, he well might

never claim it.” /d. at 197.

This rationale is equally compelling in the face of police in-

terrogation and advice. 7

_ <a

13A

formed the jury that Hale “was not required to indi-

cate where the money came from * * * You may

disregard it, ladies and gentelemen.”” To avoid re-

versal, however, the error, being of constitutional mag-

nitude,” must be harmless beyond a reasonable doubt.”

The government’s case against Hale rests on three

limbs: (1) the testimony of the complaining witness;

(2) appellant’s flight at the time of arrest; and (3)

appellant’s possession of $158.

(1) The testimony of the |complaining witness was

confused and contradictory. The trial court charac-

terized it as follows:

[Ojne view * * * with respect to this com-

plainant might be that he has been contradicted

to such a point that he wouldn’t be believed. An-

other perfectly fair view * * * is that he is

an entirely sincere witness who has a limited

intellectual ability, [and] who was in part con-

fused and misled in some of his answers * * * ®

(2) With respect to appellant’s flight upon appre-

hension, he explained that his companion had pur-

chased heroin, and, since he had a prior narcotics con-

viction, he was afraid. He claimed that his former

narcotics conviction arose in the same circumstances ;

that is, when he was not himself in possession of

(3) In the face of the weak testimony by the com-

plaining witness, and the limited probity of the evi-

*Tr. at 259.

* See Gillison v. United States, 399 F. 2d 586, 588 n. 8 (D.C.

Cir. 1968).

* Chapman v. California, 386 U.S. 18 (1967).

"Tr. at 187.

14a

dence on flight,” evidence of the large sum of money

found on appellant played a central part in the gov-

ernment’s case. Appellant attacked this evidence in

two ways: first, by showing that the sem of money

found on him was much greater than the amount al-

legedly stolen; and second, by offering an alibi, cor-

roborated by his wife, explaining his possession of the

large sum. In this context the improper question by

the prosecutor leading to Hale’s admission that he

did not offer his alibi to the police was.calculated

to break a critical point in the defense sincé-it was ap-

parently intended to indicate that the alibi had been

fabricated sometime between arrest and trial.

In Stewart v. United States, 366 U.S. 1 (1961), pe-

titioner, who had been convicted three times—his first

two convictions having been reversed by this court “—

declined to testify at the first two trials, but. took the

stand at the third “in an apparent effort to ‘bolster

[his] contention of insanity [the sole issue in the

ease].”** On cross-examination, after the defendant

admitted that he had been “‘tried on two other. occa-

sions,” the prosecutor asked: “This is the first time

you have gone on the stand, isn’t it?” * The Court

found the question improper and concluded that the

error was not harmless. Speaking of a potential éau-

tionary instruction to the jury, such as the one given

in this case, the Court said: Nx

[T]he danger of the situation would have been

increased by a cautionary instruction in that

*3 See generally Bailey v. United States, 416 F. 2d 1110, 11M

& n. 29 (D.C. Cir. 1969); Miller v. United States, 320 F. a4

767 (D.C. Cir. 19638).

% Stewart v. United States, 214 F. 2d 879 (D.C. Cir. 1954)

Stewart v. United States; 247 F. 2d 42 (D.C. Cir. 1957).

35 366 U.S. at 3.

3¢ 366 U.S. at 4.

—_ A cinaeh

15a

such an instruction would have again brought

the jury’s attention to petitioner’s prior failure

to testify. 366 U.S. at 10.

Thus, the error in the present case, when considered in

light of the evidence against appellant,—eannot be

deemed harmless beyond a reasonable doubt.” |

ITI—ANpeErson’s CLAIM

Appellant Anderson contends that his constitutional

right to remain silent was abridged by Hale’s closing

argument to the jury:

All they can do—all people can do is come in

and tell you exactly what they did that day.

* * * That is all they are required to do. They

are not even required to do that, ladies and

gentlemen.

And, of course, Mr. Hale took the stand and

did just that.*

Anderson maintains that this statement urged the

jury to draw a negative inference from Anderson’s

failure to testify. We have studied Hale’s closing

argument, and find that this statement, by itself,” did

not “‘invite an inference of [Anderson’s] guilt.”

*" See, e.g., United States ex rel. Macon v. Yeager, 476 F. 2d

613, 616-617 (3rd Cir. 1973); Gillison v. United States, 399

F. 2d 586, 588 (D.C. Cir. 1968). Compare Leake v. Cox, 432

F. 2d 982 (4th Cir. 1970) (“overwhelming evidence of guilt”) ;

United States v. Wick, 416 F. 2d 61 (7th Cir. 1969) (“over-

whelming evidence against the defendant”).

*Tr. at 294.

* Anderson argues that this statement was particularly

prejudicial because other parts of Hale’s closing argument

attempted to place the blame on Anderson while exonerating

Hale. Anderson cites several statements in Hale’s argument

indicating that Arrington had testified before the grand jury

that Hale had committed certain inculpatory acts, whereas

at trial he testified that Anderson did these acts. The record,

16a

United States v. Hines, 455 F. 2d 1317, 1335-36 (D.C.

Cir. 1971) (Bazelon, C.J., dissenting).“ Indeed,

shortly after completion of Hale’s closing argument,

the court instructed the jury that it “must not draw

any inference of guilt against the defendant “‘ecause

he did not testify.” “ In these circurmstances, we find

no error warranting reversal of Anderson’s conviction.

So ordered.

WILKEY, Circuit Judge dissenting: The convictions

of both defendant Anderson and defendant Hale

should be affirmed. I dissent from Chief Judge Baze-

lon’s opinion insofar as it reverses Hale’s conviction.

In my judgment there was no error, and if:the ma-

jority have ferreted out a flaw in the justice admin-

istered in the District Court, such error was harm-

less under all reasonable standards.

I. THe AsseRTED PERNICIOUS PassaGE

The shaky ground on which the majority overturns

Hale’s conviction concerns alleged infringement of de-

fendant’s right to remain silent when questioned by

police after arrest. At trial, when the prosecutor was

however, does not support Anderson’s claim. When placed in

context, it is clear that the statements in Hale’s closing argu-

ment were aimed solely at convincing the jury that Arrington

was wholly incredible since he continually changed his story.

Thus, Anderson was not harmed. See DeLuna v. United States,

308 F. 2d 140 (5th Cir. 1962); United States v. Barney, 371 F.

2d 166 (7th Cir. 1966). Compare United States v. Hines, 455

F. 2d 1317 (D.C. Cir. 1971), with id. at 1335 (Bazelon, CWJ.,

dissenting).

- In Hines, counsel for one co-defendant argued “you and.

I, if we were innocent, we would take the stand to try to exon-

erate ourselves.” 455 F. 2d at 1334,

“Tr. at 308.

‘a oe

17a

cross-examining Hale, who had elected to testify in

his own defense, the following exchange occurred:

Q. Did they search you?

A. Yes, they did.

Q. Did they find some money on you ? \

A. Yes, they did. \

Q. Did you im any way indicate where that

money came from? \

A. No, I didn’t.

Q. Why not?

A. I didn’t feel that it was necessary at the

time.

Q. You were advised of your rights, were

you not? \

A. Yes.’

Directly thereafter District Judge Gesell sua sponte

gave a cautionary instruction:

Court. He is not required to indicate where

the money came from. There is no responsi-

bility on his part in regard to that.

Haue’s Counset. Thank you, your Honor.

ANDERSON’s CounsEL. I ask that the question

and answer be stricken.

Court. I indicated to the jury that it is clearly

an inappropriate question. You may disregard

it, ladies and gentlemen. The defendant is not

required to give any explanation whatsoever

at the time of his arrest.’

II. CREDIBILFTY OF THE WITNESS-DEFENDANT

PLACED IN IssuE '

This cross-examination of the defendant on the wit-

ness stand did not violate defendant’s Fifth Amend-

*Record at 259 (emphasis supplied).

- * Record at 259-60. In my view the trial judge acted in an

excess of caution in telling the jury, “You may disregard it.”

A more correct caution would have been, “You may only con-

sider the question and answer as it may bear, if in your

judgment it does bear, on Mr. Hale’s credibility.”

18a

ment right against compelled self-incrimination.” Nor

did it violate the right to silence expressed in Miranda

v. Arizona, that:

it is impermissible to penalize an individual for

exercising his Fifth Amendment privilege when

' he is under police custodial interrogation. Tye

prosecution may not, therefore, use at trial the

fact that he stood mute or claimed his privilege

in the face of accusation.*

The majority rely on this quotation from Miranda,

a part of Miranda which, it should be noted initially,

is a footnoted dictum. In Miranda the defendant talked

without a proper or timely warning, which was ad-

mittedly given here. In Miranda apparently the de-

fendant never took the stand; here Hale took the stand

to tell his complete story.

The Miranda footnote dictum applies, if it applies at

all, to a situation in which the defendant “stood mute,

or claimed his privilege in the face of accusation.”

There is no testimony here that Hale ever claimed

any privilege; there is no testimony * by either Hale

’The Fifth Amendment provides that “No person * * * shall

be compelled in any criminal case to be a witness against

himself.”

4 384 U.S. 436, 468 n. 37 (1966).

5In a conference at the bench the following exchange

occurred : .

“Court. Do you have any evidence that he gave a contrary

‘statement to the police?

“Prosecutor. They asked him, ‘Where did you get the

money ?’ He couldn't account for it.

“Court. What did he say? ;

“Prosecutor. He wouldn't say anything. He couldn't account

for it. They asked him whether he was working or wasn't

working. He wouldn’t indicate.

“Covrr. That question was highly improper. I tried to cor

rect it. I think I have corrected it.”

Record at 261-62: This appears to be the only exchange in

_—

19a

or the police officers or any witness as to Hale stand-

ing mute; nor is there any testimony of any police:

accusation.

Regretfully, I must point out that the dialogue—

in quotes—my colleagues cite in the text at note 7 and

in note 12, as testimony as to what defendant Hale

said in answer to police questioning, is not evidence at :

all, Hale never testified to this, no police witness testi-

fied to this, the jury never heard any such words. The

-“dialogue”’ is lifted from a bench conference at which

the Assistant, U.S. Attorney purported to give his

belief as to what occurred at the police station. Thé

-jury-never would have been permitted to receive any

*such hearsay from the prosecutor, who of course was,

-neyer there. My colleagues thus reverse this case by

relying heavily upon unsworn hearsay “testimony”

never heard by the jury.

The record in Hale’s case simply does not support

the action of the majority in reversing Hale’s convic-

tion, even if the Miranda footnote dictum be taken as

good law applicable to Hale’s case before trial.

As to Hale’s position at- trial, in contrast to Mir-

anda, Hale took the stand. When he did, he waived his

privilege against self-incrimination; he placed his

credibility in issue just as any other witness does.

There can be no question about this. For if the credi-

bility of the defendant in some way is subject to a

more limited challenge than that of other witnesses,

then logically the jury should be so instructed. A de-

- fendant should not be able to offer testimony that is

subject to less challenge than that of any other wit-

the record which indicates the nature of the police interro-

gation of defendant after his arrest. It is not first-hand

admissible testimony, nor does it purport to be a complete

account of the dialogue’ between police and defendant. The

conclusion that some dialogue took place is inescapable.

20a

ness, without the jury being instructed that this is

so and that they can evaluate the testimony accord-

ingly. And no one suggests here that this be done.

So we must assume that evidence of statements made,

of explanations not made, and when made, if relevant

to the witness Hale’s credibility on the testimony he

chooses to give on ‘the stand, is admissible.

In reference to the '$150 found on his person at the

‘time of arrest, Hale told the jury on direct examina-

tion that he had obtained the $150 from his wife in

order to purchase money orders. He thus assuredly

did not stand mute or claim any privilege at trial.

He put into evidence, for the jury to believe or dis-

' believe, his explanation of where he got the $150. After

such testimony, as part of the usual and proper tech-

nique for testing any witness’ credibility, the most

obvious logical inquiry was whether this or any other

explanation had been given previously. This the prose-

eutor proceeded to do, and such was thoroughly per-

missible. : 2

It is clear that under Harris v. New York,’ if Hale

Had given a contrary explanation of the source of his

money to the police, such an explanation would be ad-

- missible to impeach his credibility, assuming that his

explanation was voluntary.’ Chief Justice Burger

wrote for the Court that:

Every criminal defendant is privileged to

testify in his.own defense, or to refuse to do so.

' But that privilege cannot be construed to in-

clude the right to commit perjury: Having vol-

untarily taken the stand, petitionér was under

an obligation to speak truthfully arfd accurately,

and the prosecution here did no more than

_ $401 U.S. 222 (1971).

1 Harris merely requires that the defendant’s statement be

voluntary; the Miranda warnings need not be given.

‘

21h

utilize the traditional truth-testing devices of

the adversary process.*

In the case at bar, Hale simply gave the police no rea-

son for the presence of a large sum of money found

on his person. The failure previously to offer an expla-

nation conceivably carriers less of an adverse inference

as to the witness’ credibility, but the logical relation-

ship of either a different or no previous explanation

to an explanation offered .for the first time at trial is

exactly the same. Unless the jury is obliged to accept

the testimony of a defendant under standards entirely

different from that of any other witness, then this

failure to explain should be made known to the jury

to assist in evaluating the witness-defendant’s testi-

mony, with the overall gbjective of arriving at the

truth.

The Supreme Court has not considered this issue

since it decided in Harris that prior inconsistent state-

ments could be introduced. However, the Court did

consider the issue in 1926 in-Raffel v. United States.’

There the Court found it permissible to require the

defendant who took the stand at his second trial to

disclose that he had not testified in the first trial

(where the jury failed to reach a verdict). The Court

stated,

The immunity from giving testimciy is one

which the defendant may waive by offering

himself as a witness. When he takes the stand

in his own beha!f, he does so as any other wit-

ness, and within the limits of the appropriate

rules he may be cross-examined as to the facts

in issue, He may be examined for the

of impeaching his credibility. His failure to

deny or explain evidence of incriminating cir-

*401 U.S. at 225 (citations omitted ).

*271 U.S. 494 (1926).

22a

cumstances of which he may have knowledge,

may be the Vasis of adverse inference, and the

jury may be so instructed. His waiver is not

partial; having once cast aside the cloak of

immunity, he may not resume it at will, when-

ever cross-examination may be inconvenient gr

embarrassing.”

The Court concluded that,

The safeguards against self-incrimination are

for the benefit of those who do not wish to

become witnesses in their own behalf and not

for those who do. There is a sound policy in

requiring the accused who offers himself as a

witness to do so without reservation, as does

any other witness.” ;

The Supreme Court reconsidered Raffel in a 1957

case, Grunewald v. United States,* where it held

Raffel not controlling in the circumstances of the later

ease. In Grunewald the prosecution brought out in

eross-examination of the defendant that the latter had

pleaded his Fifth Amendment privilege before the

grand jury when he was asked questions identical to

those he subsequently answered at trial. In the charge

to the jury, the trial judge stated that defendant’s

prior assertion of privilege could be used only to

reflect on his credibility and could not provide an in-

ference as to guilt or innocence. The Supreme Court

felt that it was necessary to determine whether, given

the particular circumstances of the case ‘“‘the cross-

examination should have been excluded because its

probative value on the issue of [defendant’s] credibil-

ity was so negligible as to be far outweighed by its

possible impermissible impact on the jury.”** Exer-

1° Jd. at 496-97 (citations omitted) (emphasis supplied).

1 Jd, at 499 (emphasis supplied).

22 353 U.S. 391 (1957).

13 Jd, at 420 (emphasis supplied).

—

: 234

ising its supervisory power over the administration

f federal criminal justice, the Court concluded that

lefendant’s prior silence was not inconsistent with his

ater statement on the stand and that there was a

erious likelihood that the jury might equate assertion

f the privilege with guilt. Consequently, the Court

equired a new trial for the defendant.

Grunewald is distinct from Hale’s case in several

vays. That no inference can or should be drawn from

he assertion of the Fifth Amendment privilege

gainst self-incrimination has long been thought neces-

ary to preserve the vitality of the privilege itself.

the 1957 Grunewald decision came at a time when

he use (or abuse) of the privilege was under severe

ttack, and there existed an undoubted likelihood that

he average juror would equate “taking the Fifth’’

9 a confession of guilt. Whatever the logical relevance

f this to any later explanation offered by a defend-

nt, the real danger of prejudice would outweigh any

elevance. The same cannot be said of Hale’s situa-

ion. Nothing was said, either in question or answer,

bout a fear of incrimination. Hale was simply asked,

Did you in any way indicate where that money came

rom ?’’ He answered equally simply, ‘‘No, I didn’t.

* * I didn’t feel it was necessary at the time.”

My two colleagues believe that the jury could draw

ch an unfair and prejudicial inference from this

at, on the extended authority of a footnoted dictum

1 Miranda, the entire trial goes for nought and the

mviction must be set aside. To me, especially in view

f the trial judge’s immediate corrective instruction,

hich to my mind went too far in restoring the proper

lance, this result is an incredible perversion of the

idicial process.

* See n. 2, supra.

24a

The issue raised -here is governed by Raffel, not

Grunewald. The issue in Raffel was squarely focused

by a certified question: “‘Was it error to require the

defendant, Raffel, offering himself as.a witness upon

the second trial, to disclose that he had not testified

as a witness in his own behalf upon the first trial?”

Tn answer to which, in Mr. Justice Harlan’s opinion

for the Court in Grunewald, ‘‘[t]his Court held, in

effect, that when a criminal defendant takes the stand,

he waives his privilege completely and becomes sub-

ject to cross-examination impeaching his credibility

just like any other witness.’’ * I submit this is exactly

what Hale did here: in his dialogue with the police

he chose not to tell them where he got the money, and

this omission, like Raffel’s choice not to testify in his

first trial, can properly be brought out before the

jury. There was no problem of a plea of privilege by

Hale sought to be used against him, as in Grunewald.

Furthermore, i four concurring Justices in Grune-

wald interpreted and disagreed with the Court’s opin-

ion: ‘‘I do not, like the Court, rest my conclusion on

the special circumstances of this case.” So Grune-

wald is a case resting on “special circumstances,” and

since Justice Harlan and the Court resisted the en-

treaties of the four to overrule Raffel,” it is the

Supreme Court’s decision in Raffel, not in Grunewald,

which governs Hale’s case here.

I am sustained in my view, not only by what I con-

sider the proper analysis of Harris, Miranda, Grune-

wald, and Raffel, but also by recent decisions in other

circuits,

18971 U.S, at 496.

16 353 U.S. at 420.

1" Td. at 425 (Black, J., concurring).

18 Jd, at 426 (Black, J., concurring).

25a

Although the Supreme Court has not reconsidered

the permissibility of cross-examination by the prose-

eution of a defendant concerning his earlier silence,

hence such cross-examination is still clearly author-

ied by Raffel, several circuits have considered the

question in light of Harris v. New York. The Fifth

Circuit, in United States v. Ramirez,* found such

eross-examination proper. The defendant in that case

testified at trial that he had been coerced into selling

heroin by threats of harm from strangers. On cross-

examination, he admitted that he had never told the

police this fact, and in the closing argument the pro

eutor urged that this was not the way a truthful man

would act. No objection was raised at trial. On ap-

peal, the Fifth Circuit held that Harris mandates the

conclusion that:

Once [defendant] elected to testify and assert

the defense of coercion he became subject to the

“traditional truth-testing devices of the ad-

versary process,” including the right of the

prosecution to show hts prior inconsistent act of

remaining silent at the time of his arrest.”

The only difference between the case at bar and

Ramirez is that the District J udge here sua sponte

ave cautionary instructions informing the jury that

lefendant had no obligation to tell the police where

¢ had obtained the money. If there was error harm-

ul to Hale, there was error harmful to Ramirez—ex-

ept that Hale had the benefit of an immediate cura-

ive instruction.

The Third Circuit also adopted the Ramirez a

roach in United States exrel. Burt v. State of New

“441 F, 2d 950 (5th Cir.), cert denied, 404 U.S. 869 (1971).

* Id. at 954 (emphasis supplied) .

26A

Jersey.“ There, defendant took the stand and. ex-

plained that a shooting was accidental rather than in-

tentional. On cross-examination, when asked why he

had not told anyone what had happened, he had no

explanation. The prosecution sought to attack his

eredibility on the theory that someone responsible for

an accidental injury would attempt to obtain help for

the injured.” The Third Circuit held the cross-exami-

nation permissible. It referred to Ramirez with ap-

proval.

The concurring opinion of Judge Rosenn in Burt,

which was joined by one of the other two panel mem-

bers and thus becomes a majority opinion, was even

more explicit:

If the shooting was accidental as claimed by

Burt, his silence both before he was a suspect

and after was inconsistent with his at-trial

testimony that the shooting was accidental. Such

inconsistency, Harris holds, must be subject to

the truth-seeking process of cross-examination.

I perceive no difference between impeachment

by prior inconsistent statements made in the

absence of a Miranda warning and impeachment

by prior silence inconsistent with trial_testi-

mony which justifies not applying the Harris

rationale in the present case.

_ Traditionally in our adversary system cross-exam-

~ jnation is used to probe the credibility of direct testi-

21475 F. 2d 234 (3rd Cir. 1973).

22 Burt involved a samewhat odd factual situation, in that

on the same evening as the shooting, the defendant was arrested

for breaking and entering a store, which offense was uncon-

nected with the shooting death. Defendant’s failure to comment

on the “accidental” shooting to the police was urged by the

prosecutor to show the unreliability of defendant’s testimony at

trial. The defendant had not been questioned by the police con-

cerning the shooting.

23475 F. 2d at 237-38.

27a

mony. Without such cross-examination, perjury is

likely to go undiscovered. When a defendant takes

the stand, his testimony nay be examined in the light

of his past voluntary statements. Likewise, his past

silence may be introduced, when it may be inconsistent

with the story hg tells on the stand.” And note par-

ticularly, what we are dealing with in Hale’s case are

entirely voluntary acts, either of statement or non-

statement. There is no ‘suggestion of a Afiranda

situation.

Griffin v. California® established that if the de-

fendant does not take the stand at trial, neither the

prosecutor nor the judge may comment on his silence.

However, once the defendant does take the stand, I

believe his credibility may be tested not only by prior

inconsistent statements as mandated by Harris, but

also by prior inconsistent silence.

A contrary view was taken by the majority in a

Tenth Circuit case, Johnson v. Patterson.” They be-

lieved that Harris was distinguishable from a case

concerning a defendant’s silence at the time of arrest,

for they thought that the latter was:

not an inconsistent or contradictory statement.

Silence at the time of arrest is simply the exer-

* As Judge Rosenn wrote, “If inconsistencies( cannot be »

demonstrated to a jury, the truth-seeking process is strait-

jacketed. The defendant, of course, is free to explain away

seeming inconsistencies. The adversarial system requires that

the jury, as triers of fact, make the final determination of

which testimony and conduct to believe.” /d. at 238.

25 380 U.S. 609 (1965).

26475 F. 2d 1066 (10th Cir. 1973), cert. denied, 42 U.S.L.W.

3199. It should be noted that in Johnson, instead of the trial

judge telling the jury to disregard the question and answer con-

cerning the defendant's previous silence, there was no cautionary

instruction and the prosecutor was allowed to refer in closing

argument to defendant’s silence compared to his explanation

at trial.

: 28a ae

cise of a constitutional right that all persons

must enjoy without qualification. It would in-

deed be irregular and anomalous to warn an

accused that he has the right to remain silent,

that if he says anything it may be used against

him, however, if he does remain silent that too

may be used against him.”

However, I agree with Judge Breitenstein’s dissent

that once having waived his privilege against com-

pelled self-incrimination by testifying at trial, the

defendant may not reassert his privilege when the

questioning becomes tough.” The waiver is not par-

tial.” Once the defendant has opened up a subject

area on direct examination, the principle that a wit-

ness should testify truthfully prevails; cross-examina-

tion of the witness-defendant to determine if he made

similar statements previously is logically necessary in

evaluting his truth or credibility. As Chief Justice

(then Cireuit Judge) Burger remarked in Tate vy.

United States, ‘‘ At best the theory that judicial sup-

pression of truth has a beneficial effect on the

administration of justice is unproved and perhaps

unprovable.” *°

It is true that the prior silence of the witness-

defendant must be inconsistent with his later state-

ment at trial, for otherwise the prior silence would

not be capable of impeaching his credibility. But in

the case at bar, the failure to explain to the police

the source of the money does cast doubt upon the

later explanation that defendant’s wife had given him

the money. The jury should be allowed to evaluate the

witness-defendant’s testimony at trial in light of his

** Jd. at 1068 (citations omitted). This view was reiterated by

the same Circuit in Deats v. Rodriguez, 477 F. 2d 1023 (10th

Cir. 1978).

28 475 F. 2d at 1068.

* See Raffel v. United States, 271 U.S. 494 (1926).

*° 109 U.S. App. D.C. 13, 17, 283 F. 2d 377, 381 (1960).

29a

past silence, which is arguably inconsistent with an

innocent explanation.

This view is similar to that of the British Criminal

Law Revision Committee. In a report presented to

Parliament in 1972, the Committee, which had been

established by the Home Secretary, recommended that

it should be “permissible for the jury or magistrates’

court to draw whatever inferences are reasonable from

the failure of the accused, ‘when interrogated, to men-

tion a defence which he puts forward at his trial.” ™

The suspect would have a right to remain silent; but

if he did so, that fact might be introduced at trial. It

would be for the court or jury to determine if an

* Criminal Law Revision Committee, Eleventh Report, Evi-

dence (General) 16 (1972). Prior law generally did not per-

mit comment on defendant's prior silence. See id. at 16-17; R.

Cross, Evidence 180 (1967). It is interesting to note that the

law Revision Committee Draft Bill makes the change in Clause

lof Part I: oat :

“1.—(1) Where in any proceedings against a person for an

offence evidence is given that the accused—

“(a) at any time before he was charged with the offence, on

being questioned by a police officer trying to discover whether

r by whom the offence had been committed, failed to mention

my fact relied on in his defence in those proceedings; or

“(b) on being charged with the offence or officially informed

hat he might be prosecuted for it, failed to mention any such

‘act,

being a fact which in the circumstances existing at the time

could reasonably have been expected to mention when so

uestioned, charged or informed, as the case may be, the court,

n determining whether to commit the accused for trial or

vhether there is a case to answer, and the court or jury, in

etermining whether the accused is guilty of the offence charged,

lay draw such inferences from the failure as appear proper;

nd the failure may, on the basis -of such inferences, be treated

s, or as capable of amounting to, corroboration of any evi-

ence given against the accused in Yelation to which the failure

| material.”

riminal Law Revision Committce Report at 172.

30A

adverse inference should be drawn from the defend-

ant’s prior omission.”

Criminal Law Revision Committee Report at 21, Even

if an improper inference is permitted by the trial judge’s “mis-

direction,” it may be “harmless error” under the present British

standard. Compare Hale’s case with a recent British criminal

appeal, discussed by the Committee in regard to the effect of

the proposed change: :

“30, In Our opinion it is wrong that it should not be per-

missible for the jury or magistrates’ court to draw whatever in-

ferences are reasonable from the failure of the accused, when

interrogated, to mention a defense which he puts forward at his

trial. To forbid it seems to us to be contrary to common sense

and, without helping the innocent, td give an unnecessary ad-

vantage to the guilty. Hardened criminals often take advan-

tage of the present rule to refuse to answer any questions at

all, and this may greatly hamper the police and even bring

their investigations to a halt. Therefore the abolition of the

restriction would help justice. * * * [In Sullivan (1967), 51 Cr.

App. R. 102.] the accused, who was convicted of smuggling

watches from Switzerland, had refused to answer questions by

Customs officers. The judge, in the coure of his summing up,

had referred to the refusal and gone on:

“ ‘Of course bear in mind that he was fully entitled to refuse

to answer questions, he has an absolute right to do just that,

and it is not to be held against him that he did that. But you

might well think that if a man is innocent he would be anxious

to answer questions. Now, members of the jury, that is what it

really amounts to.’

“The Court of Appeal said with reference to this:

“Tt seems pretty plain that all the members of that jury, if

they had any common sense at all, must have been saying to

themselves precisely what the learned judge said to them. The

appellant was not obliged to answer, but how odd, if he was

innocent, that he should not have been anxious to tell the Cus

toms officer why he had been to Geneva, whether he put the

watches in the bag, and so on.’

“Then, after referring to the authorities, the judgment went

on to say that sometimes comment on the accused’s silence wa:

31a

Of course the most recent British thought on this

question is persuasive at best. But then, the British

are not an uncivilized people, and they have had some

years of experience in administering a system of jus-

tice which other nations view with a bit of envy.

ITI. Error HarMiess Beyonp a. REASONABLE

Dovust

Chief Judge Bazelon and Judge Wisdom reverse

this conviction on four lines of a 326-page transcript:

Q. Did you in any way indicate where that

money came from? waste

A. No, I didn’t.

Q. Why not?

‘“ A. I didn’t feel that it was necessary at the

ime.

Assuming this was error, even uncorrected error, I

would be loath to reverse a conviction which appears

solidly founded.” But the alert trial judge here im-

unfair but that there was no unfairness in this case. It then

continued :

“'The line dividing what may be said and what may not be

said is a very fine one, and it is perhaps doubtful whether in a

case like the present it would be even perceptible to the mem-

| bers of any ordinary jury.’

“The court held that they were compelled, in the existing state

of the law, to hold that the judge’s comment was a misdirection,

| but they dismissed the appeal under the proviso to s. 4(1) of

the Criminal Appeal Act 1907 (c. 23) on the ground that ‘no

possible miscarriage of justice occurred.’ ”

Id. at 17-18 (citations omitted). So the present British rule,

with the factor of “harmless error” properly considered, would

Sustain Hale’s conviction, as discussed in Part III of this

| opinion.

* Any time a victim reports himself robbed, describes gen-

erally his assailants, sets out with the police in immediate

Sarch of them, spots two men walking some distance away,

——

324

mediately sua sponte gave a corrective instruction, re-

moving from the jury’s mind any inference to be

drawn from Hale’s failure to offer an explanation for

the money at the time of his arrest.

It should be observed that both the prosecutor’s

questions and Hale’s replies were couched in terms

which implied that Hale had simply failed to volun-

_ » teer an explanation ; there was nothing suggesting that

Hale had been asked a direct question by the police

and had refused to answer (whether this actually oc- |

curred is thus immaterial, because the jury reeeived no

such implication). Thus the effect of the two improper

questions, if they were such, was easily subject to~

being corrected by the trial court’s cautionary instruc-

tion, which, in my judgment it was. In fact, the judge’s _

cautionary instruction was so quick and emphatic that —

it may well have knocked out any inference unfavor-

able to the defendant Hale which the prosecution had

hoped to draw from the mere fact of Hale’s possession ,

of the $150 immediately after the robbery.

The standard of harmless error beyond a reasonable

doubt is well known from Chapman v. California;

which requires that “before a federal constitutional

error can be held harmless, the court must.be able to

declare a belief that it was harmless beyond a reason-

excitedly yells that one of them was one of the robbers, uner-

ringly identifies one of the pair (but not the other) as one of

the perpetrators of the crime, the identified accused having on

his person a comparatively large sum of money for the posses-

sion of which he offers no explanation whatever (not even as

wages for current employment), all of this adds up to about as

solid evidence in ordinary street crime as the courts ever get. A

jury of our local citizens thought so. That the victim later be-

came mixed up on irrelevant detsils is insignificant when com-

pared with his certainty of idevitification of Hale ey:

after the crime.

4 386 U.S. 18, 24 (1967).

—

f 33a

able doubt.”’ This standard was further elaborated in

Anderson v. Nelson: “comment on a defendant's fail-

ure to testify [at trial] cannot be labeled harmless

error in a case where such comment is extensive, where

an inference of guilt from silence is stressed to the

jury as a. basis of conviction, and where there is evi-

dence that could have supported acquittal.” * In the

case at bar, the comment on the defendant’s silence be-

fore the police was not extensive ; no inference of guilt

was stressed to the jury; and a cautionary instruction

was given.” , t

If those four lines in Hale’s trial, followed im-

mediately by a corrective instruction, do not consti-

tute harmless error beyond a reasonable doubt, have

my two colleagues left anything ‘of the Supreme

Court’s Chapman standard in this Cireuit ?

I would affirm Hale’s conviction.

* 390 U.S. 523, 523-24 (1968). |

* See also Donnelly v. DeOhristoforo, 42 U.S.L.W.,4682 (U.S.

May 14, 1974), where the Supreme Court again distinguished

between “ordinary trial error” and “egregious misconduct”

amounting to a denial of constitutional due process,

APPENDIX B

{United States Court of Appeals for the District of

Columbia Circuit, filed May at 1974; Hugh E.

Kline, Clerk]

United States Court of Appeals for the

District of Columbia Circuit

é ‘eeiscmual Term, 1973, Criminal Action 2348-71

No. 72-1848

UNITED STATES or AMERICA

Vv.

FLEMMING ANDERSON, APPELLANT

No. 72-2066

Untrep States oF AMERICA

: w, ber

Wurm G. Hara, APPELLANT

nope from the United States District Court for the

District of Columbia

Before: BazELon, Chief Judge, Wispom,* United

States Circuit Judge for the ies Circuit and W1-

KEY, Circuit Judge.

JUDGMENT

These causes came on to be heard on the records

on appeal from thé United States District Court fer

ee ‘

*Sitting by designation pursuant to 28 U.S.C. § 291(a).

(JAA)

35a

the District of Columbia and were argued by counsel.

On consideration of the foregoing, and in accordance

with the opinion of this Court filed herein this date,

it is '

Ordered and adjudged by this Court that the con-

viction of appellant William G. Hale is hereby re-

versed and it is

_ Further ordered and adjudged by this Court that

the conviction of appellant Flemming Anderson is

hereby affirnied.

Per Curiam.

For the Court.

Hucu E. Kime,

Clerk.

Date: May 21, 1974

Opinion for the Court filed by Chief Judge Bazelon.

Dissenting opinion filed by Circuit Judge Wilkey.

APPENDIX C

United States Court of Appeals for the

District of Columbia Circuit

September Term, 1973

Criminal 1319-71

[United States Court of Appeals for the District of

Columbia Circuit, Filed Aug. 1, 1974; Hugh E.

Kline, Clerk] 2

No. 72-2066

UniTep States or AMERICA

Vv.

Witi1aM G. Hate, APPELLANT

Before: BazELon, Chief Judge; Wispom,* U.S. Cir-

cutt Judge for the Fifth Circuit and WILKEy, Circuit

Judge.

ORDER >

On consideration of appellee’s petition for rehear-

ing, it is

ORDERED by the Court that appellee’s, aforesaid

petition is denied.

Per Curiam.

For the Court:

Hvueu E. Kine,

Clerk.

*Sitting by designation pursuant to Title 28 U.S. Code Sec

tion 291(a).

(36A)

APPENDIX D

United States Court of Appeals for the

District of Columbia Circuit

September Term, 1973

Criminal 1319-71

[United States Court of Appeals for the District of

Columbia Circuit, Filed Aug. 1, 1974; Hugh ‘E.

Kline, Clerk]

No. 72-2066

Unrrep States or AMERICA

WitiiaM G. Hae, APPELLANT

Before: BazE.on, Chief Judge; Wricut, McGowan,

TamM, LEVENTHAL, ROBINSON, MacKinnon, Ross and

WILKEY, Circuit Judges.

ORDER

On consideration of appellee’s suggestion for re-

earing en banc,

ORDERED by the Court en banc that the afore-

aid suggestion is denied.

Per Curiam.

For the Court:

Hvueu E. Kurz,

Clerk.

Statement of Circuit Judges Tamm, MacKinnon,

tobb and Wilkey as to Why They Would Grant Re-

earing En Bane:

: (387A)

As to the existence of any error in the trial, the

court’s majority opinion is contrary to the Supreme

Court’s decision in Raffell v. United States, 271 US.

494 (1926), a decision which the Supreme Court has

specifically declined to overrule. The majority opinion

is also contrary to recent decisions of the Third and

Fifth Circuits, although in agreement with a two-to-

one decision of the Tenth Circuit, as cited in Judge

Wilkey’s dissent.

As to any prejudice to the defendant Hale, even if

any error occurred, it was certainly cured by the trial

court’s prompt instruction and was harmless beyond

a reasonable doubt. The majority opinion here at-

tempts to abolish in this Cireuit the Supreme Court

standard of harmless error laid down in Chapman v.

California, 386 U.S. 18 (1967).

On both grounds the panel majority decision merits

review by our full court.

U.S, GOVERNMENT PRINTING OFFICE: 1974.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.