United States v. Brinson, 18932.

• Decision Date: 13 June 1969
• Docket Number: No. 18932.,18932.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John BRINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

411 F.2d 1057 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. John BRINSON, Defendant-Appellant.

No. 18932.

United States Court of Appeals Sixth Circuit.

June 13, 1969.

Allen N. Brunwasser, Pittsburgh, Pa., on brief, for appellant.

Robert J. Grace, U. S. Atty., Franklin G. Koory, Asst. U. S. Atty., Detroit, Mich., on brief, for appellee.

Before PHILLIPS, McCREE and COMBS, Circuit Judges.

McCREE, Circuit Judge.

Appellant was convicted of transporting in interstate commerce money of the value of $5,000¹ knowing the same to have been taken by fraud. His appeal presents three issues. First, he contends it was plain error to permit the United States Attorney to inquire in the presence of the jury whether appellant had previously disclosed his trial-asserted defense to any prosecuting agent or law enforcement officers. He also claims that error was committed when the District Judge refused to enforce a subpoena to compel the attendance of a defense witness. Finally, he asserts that it was error for the trial prosecutor and judge to vouch for the credit of a witness for the Government. We reverse on the first ground.

Appellant and his co-defendant, Helen Rucker, were accused of fraudulently obtaining $5,000 from a Mrs. Lee and transporting it from Flint, Michigan to Pittsburgh, Pennsylvania. Defendant, who took the stand, admitted the fraudulent procurement of the $5,000 but testified that a division of the spoils took place in Michigan prior to his departure from that state and that he therefore did not transport in interstate commerce an amount of money sufficient to make his offense a federal crime. Helen Rucker, who had previously pleaded guilty, contradicted this testimony.

The testimony relevant to the first issue on appeal is as follows:

A. I never have believed as a matter of law or fact that I am guilty of this charge, of transporting $5,000 across the state line.

Q. What I am getting at is if your testimony here today is true you wouldn\'t be guilty of this charge.

A. I am not guilty of this charge.

Q. Since the time you were arrested have you ever had occasion to give your version of this story to any law-enforcement agent or FBI agent?

A. No one has approached me.

Q. But you did have contact with the FBI agent at least twice, is that true?

A. You mean contact by coming to get me out of jail?

Q. Yes.

A. Yes.

Q. Did you ever attempt to tell that agent or the agent that arrested you your version of the story?

A. Mr. Hamel United States Attorney nobody —

Q. (Interposing) That can be answered yes or no.

A. These are the people that I tell my story to, not the FBI agent.

(179) THE COURT: Just answer the question.

A. I don\'t know what he is trying to say.

THE COURT: It\'s a simple question. His question is did you tell this story to any FBI agent?

A. That I am telling now?

THE COURT: Yes.

A. No.

MR. HAMEL: No further questions.

* * * * * *

THE COURT: Mr. Hamel asked you a question about what, if anything, you had to say to the FBI agent either (185) at your arrest or thereafter. Did you tell them anything about what you claim happened in this case?

A. I said nothing to the FBI.

THE COURT: They gave you an opportunity to, didn\'t they?

A. What do you mean "opportunity"?

THE COURT: They were interested in what your story was?

A. They never asked me anything about it because the agent that arrested me told the U. S. Commissioner in Pittsburgh, "We don\'t know anything about it." No one ever asked me, "Did you do it or didn\'t you do it," and I never volunteered one way or another. I never said anything.

THE COURT: When was the first time that you told your side of the story to anybody in law enforcement or your own attorney, the story you have told here?

A. When I first, probably the second time when I first met my attorney.

THE COURT: About when was that?

A. Let\'s see, sometime possibly in May.

THE COURT: Of this year?

A. Yes. That is when I told my attorney this story.

THE COURT: Did you tell anybody else?

A. Of course.

(186) THE COURT: Well, I mean anybody connected with this case.

A. There was no one I have ever been contacted by I could have told except my attorney since that time.

Emphasis was afforded this line of interrogation by the United States Attorney in his argument at the conclusion of the proofs:

I want to cover just two other things that you should consider when you determine whether Mr. Brinson is telling the truth about what happened after they left Flint. One is his statement that, well, what he testified to was true, he never found it appropriate to mention it to any law enforcement officer or FBI agent. Surely Mr. Brinson doesn\'t think that the Government is interested in prosecuting innocent people and if he had an explanation he might have well considered it appropriate to an earlier time to mention it. He did not, but which is his right but I think it is a circumstance you can take into consideration along with the other proofs in this case.

Appellant did not object to the interrogation or to this argument, but, we may consider this issue if it is plain error affecting a substantial right. Fed. R.Crim.P. 52(b).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court stated:

"The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. (id. at 469, 86 S.Ct. at 1625.)

* * * * * *

"* * * it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation." (id. at 468, 86 S.Ct. at 1625, n. 37).

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