Fowle v. United States

• Decision Date: 14 April 1969
• Docket Number: No. 21074.,21074.
• Parties: Raymond R. FOWLE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

410 F.2d 48 (1969)

Raymond R. FOWLE, Appellant, v. UNITED STATES of America, Appellee.

No. 21074.

United States Court of Appeals Ninth Circuit.

April 14, 1969.

Luke McKissack, Los Angeles, Cal., for appellant.

James E. Shekoyan (appeared) Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BROWNING, and ELY, Circuit Judges, and FOLEY,^* District Judge.

ELY, Circuit Judge:

We dispose of this appeal by answering, in the negative, the one significant question which is presented. It is: "May the silence of an accused at the time of his arrest, chosen in the exercise of his privilege against self-incrimination, be used against him by the prosecution if, during his trial, he testifies in his own defense?"

Appellant was charged in a five-count indictment with having violated certain federal statutes proscribing the illegal possession and sale of heroin and cocaine. See 21 U.S.C. § 174; 26 U.S.C. § 4705(a). He appeals from the judgment of conviction which followed a jury's finding that he was guilty as charged.

It is unnecessary to review the evidence in its complete detail. The prosecution proved that an informant, one Clark, introduced Fowle to government narcotics agents. Thereafter, on two different occasions, Fowle sold narcotics to one of the agents.

Fowle testified in his own defense. His testimony was to the general effect that he had not intended to commit a crime. He insisted that he had been led to believe, by the informant Clark and by an associate of Clark, that Clark had become involved in narcotics traffic and was therefore in trouble with the federal authorities. According to Fowle's testimony, he was told that the authorities had promised Clark that if Clark would "set up" some other person, he, Clark, would be spared from prosecution. Fowle testified further that he made the sales in question in an effort to aid Clark and in the belief that, in doing so, he was assisting the Government. Until the moment of his arrest, according to his testimony, Fowle was under the impression that his participation was in the interest of, and in association with, the Government's law enforcement officials.

During its cross-examination of Fowle, the prosecution was permitted, over objection, to inquire:

"Q * * *

"At the time of your arrest, Mr. Fowle, did you tell the agents that you were setting up Mac one of the Government\'s narcotics agents with Mr. Clark?"

Fowle's answer was, "No, I didn't," and the prosecutor, in summation, commented effectively upon the testimony.¹

The Government takes the position that since the defendant chose to testify in his own behalf, it was not impermissible to prove for the purpose of impeachment, and thereafter to comment upon the proof, that Fowle had chosen to remain silent at the time of his arrest. This argument is based on the Supreme Court's reasoning in Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). There, a second trial was ordered when the first jury failed to reach a verdict. After relying on his privilege against self-incrimination by refusing to testify at his first trial, the accused took the stand during the second trial and attempted to refute certain testimony of a government witness. Over objection, Raffel was compelled to disclose that he had remained silent in the face of the same testimony at the earlier proceeding. The Supreme Court concluded that Raffel's silence under the circumstances was inconsistent with his testimony at the second trial and was therefore probative evidence to impeach the credibility of his later representations. Moreover, the Court reasoned, such use of the defendant's silence did not violate his fifth amendment rights because, by electing to testify, he waived any rights connected with the privilege.

We cannot accept the contention here made by the Government for two significant reasons. First, the Raffel opinion's underlying assumption that silence in the face of accusation is sufficiently inconsistent with later explanation and testimony asserting innocence as to be of probative value to impeach that testimony has been rejected by the Supreme Court in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 62 A.L.R.2d 1344, 1 L.Ed.2d 931 (1957). Second, such proof of the accused's silence violates his constitutional rights under more recent definitions of the scope and purposes of the Fifth Amendment.

I. PROBATIVE VALUE OF PROOF OF SILENCE

A person's silence in most circumstances is so highly ambiguous that it is generally inadmissible, for its lack of probative value, on the question of whether, by his silence, that person has expressed agreement or disagreement with contemporaneous statements of others. One situation in which silence has been deemed more meaningful and thought to be so significant as to have probative weight is the case wherein it persists in the face of accusation. It has been assumed that an accused, in such circumstances would, more likely than not, dispute untrue accusations. See United States v. McKinney, 379 F.2d 259, 261 (6th Cir. 1967). It was upon this implicit assumption that the Raffel court held that the prior silence of the accused was admissible. There are, however, situations in which an accused is clearly under no duty to speak and where there are important reasons, regardless of guilt or innocence, for his maintaining silence. In such circumstances, since innocent and guilty alike may choose to stand mute, silence, even in the face of accusation, is highly ambiguous; hence, proof of such former silence should be excluded under universally recognized principles of evidence.

The Supreme Court adopted such a rationale in Grunewald v. United States, supra. There, one Halpern, one of the defendant-petitioners, was summoned before a grand jury; however, he refused to answer a series of questions on the asserted ground that his answers might incriminate him. During the subsequent trial, Halpern testified and answered the same questions perviously asked by the grand jury in a manner consistent with his innocence. Over objection, and relying upon Raffel, the trial judge allowed the prosecution, for the purpose of impeachment, to prove that Halpern had earlier refused to answer these questions.

The Supreme Court's majority opinion defined the issue raised by this use of Halpern's prior silence as an evidentiary problem: Did the trial court err in determining that the fifth amendment plea before the grand jury involved such an inconsistency with any of his trial testimony as to permit its use against him for purposes of impeachment? 353 U.S. at 418-419, 77 S.Ct. at 981. The Court relied upon the well-known principle that prior statements are admissible for impeachment only if they are in fact inconsistent with statements made at trial. Believing that the circumstances surrounding Halpern's silence before the grand jury justified his reliance on the Fifth Amendment, imposed no duty to speak upon him, and, most importantly, presented valid reason, regardless of his guilt or innocence, for his deferring comment, the High Court ruled that Halpern's silence was not sufficiently inconsistent to justify its use for impeachment.

"These factors are crucial in weighing whether a plea of the privilege is inconsistent with later exculpatory testimony on the same questions, for the nature of the tribunal which subjects the witness to questioning bears heavily on what inferences can be drawn from a plea of the Fifth Amendment. * * * Innocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings where cross-examination and judicially supervised procedure provide safeguards for establishing of the whole, as against the possibility of merely partial truth." Id. at 422-423, 77 S.Ct. at 983.

Here, the Government admits that Fowle was properly exercising his privilege to remain silent and was under no duty to respond to the officers' accusations. One confronted by the informal interrogation of arresting officers would, it seems to us, have more justification for awaiting less secret and more formal proceedings attended by procedural safeguards than did Halpern when he appeared before the grand jury.

"The constitutional protection against self-incrimination does not begin with the trial of a defendant on the charges against him. History tells us that it was the preliminary inquisition, prior to trial on the merits, which gave rise to the abuses, which resulted in the recognition of the privilege against self-incrimination. Under our law it is not the function of police officers to determine for the benefit of the jury whether or not a person under arrest on suspicion of crime has given a sufficient explanation at all, in fact that the accused here remained silent rather than risk unwitting distortion of his statement by a police officer at a later date does not give in law, and should not be allowed to give in fact, rise to an inference of guilt."

Helton v. United States, 221 F.2d 338, 341-342 (5th Cir. 1955). Surely, in such circumstances, Fowle's silence was no more contradictory of his later testimony than was the silence of Halpern. Hence, considering the prosecution's use of Fowle's silence as purely a question of evidentiary law, Gruenwald supplies solid basis for reversal.

The United States Court of Appeals for the First Circuit has expressed agreement with this interpretation of Grunewald. See Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965). There, the accused, in his trial testimony, sought to establish an alibi; however, on cross-examination, the prosecution was permitted to inquire as to why he had failed to protest his innocence when arrested. The court held that the attempt to impeach the accused's testimony in this manner was prejudicially...