United States v. Lacouture
| Citation | 495 F.2d 1237 |
| Decision Date | 15 August 1974 |
| Docket Number | No. 73-2834.,73-2834. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marcelle LACOUTURE, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
James M. Simons, Austin, Tex. (Court-appointed), for defendant-appellant.
Anthony J. P. Farris, U. S. Atty., Anna E. Stool, Staff Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before ALDRICH, Senior Circuit Judge* and BELL and GEE, Circuit Judges.
This case presents squarely for the first time in our circuit the question whether a witness'1 refusal to testify on Fifth Amendment grounds may be made known to the jury or commented on by defense counsel. Other circuits which have considered these issues, however,2 have uniformly said no. We agree and affirm.
A little over a year ago customs agents inspected defendant Lacouture at a Port of Entry at Laredo, Texas, on her return from a few hours' visit to Mexico. She advised the customs official that the car she was driving belonged to another. Several suspected marihuana seeds were seen on the front seat, but a search of her clothes and personal effects by an inspectress revealed no contraband. A marihuana cigarette was, however, found hidden in a defroster hose under the dashboard of the car. Her response to this occurrence was, "So what?" At this she received a Miranda warning.
The customs officials then went to the back of the automobile to open the trunk. Defendant, who had been fully cooperative throughout, advised them that the trunk was "a little tricky" to get into, telling them just to pull it on open. The spare tire seemed a little heavy to them and, when broken down, was found to contain 5.75 pounds of Mescaline Sulfate, sufficient for thousands of "street doses" of that hallucinogenic drug.
A jury found Lacouture guilty of importing and possessing with intent to distribute the Mescaline, but not guilty of importing the marihuana squib. On this appeal she complains that the evidence was insufficient to support her conviction and of the handling of the car owner as a witness.
Considered as it must be in the light most favorable to the government,3 the evidence was sufficient to support her conviction. She was the driver and only occupant of the vehicle in which the contraband was found hidden, and had sole dominion and control of it at that time. She was familiar with the working of the lid of the trunk where the drug was hidden. She had had control of the car, on her own showing, for the whole of that day, and was returning from Mexico. She had access to the trunk. We are unprepared to hold that, as a matter of law, one may insulate himself from the drug laws by employing a borrowed vehicle and concealing the contraband thoroughly. Cases such as Montoya,4 involving a passenger without control or dominion over the vehicle, and Guevara v. United States,5 where a relatively insignificant amount of marihuana was found beneath the car's front seat, in a place where it might with equal ease have been placed by either of the car's occupants or by anyone else, are not apposite here. Lacouture was in sole control, and the jury doubtless thought it unlikely that such a large amount of this drug would have been carelessly left concealed in the car by some third person.
Lacouture's other claim of error concerns the handling of what we can only call the non-testimony of the car's owner, Virginia Coleman. Without objection, Mrs. Coleman was identified before the jury by one of the Government witnesses as the owner of the car in question. Immediately thereafter, defense counsel elicited from the same witness that Mrs. Coleman was present at court under Government subpoena. A little later, he went further into the subject, establishing that she had refused to discuss the case with the witness, a government investigator. Later still, he attempted to call Mrs. Coleman as a witness. At the suggestion of Government counsel, she was examined before the court in chambers where, after she had given her name and address, the defense asked if she owned the automobile in question. At this juncture Mrs. Coleman's attorney advised the court that she had recently been before the Grand Jury where on his advice she had refused to answer questions, that the United States attorney had indicated she "could be a potential defendant," and that upon advice of counsel she would, if called as a witness, invoke the Fifth Amendment and refuse to answer any questions. The court asked her if she intended to follow this advice. She replied that she didn't know and asked if she could think it over. The court reminded her of her attorney's advice. She then stated that she would like to see justice "happen here" but "I don't want to incriminate myself." The court, concluding that if put on the stand she would claim the privilege, then ruled that she would not be permitted to testify in the presence of the jury. Counsel were instructed not to make reference to her failure to testify.
Before us, Appellant Lacouture asserts that by these actions the court committed four errors: (1) preventing defendant from calling Mrs. Coleman as a witness in the jury's presence, (2) claiming the privilege for the witness rather than requiring her to do so, (3) instructing defense counsel not to refer to her failure to testify or the Government's failure to put her on, and (4) in giving no curative or neutralizing instruction to the jury on the subject.
Contentions (1) and (3) may be treated together. We see no merit in defendant's invocation of the Confrontation Clause. The mere identification of Mrs. Coleman did not constitute her a witness against defendant. Nor is there merit in the Compulsory Process Clause claim; Lacouture did not subpoena Mrs. Coleman, and had she done so, her rights thereunder would have been exhausted by Mrs. Coleman's physical availability at court and could not override the witness' privilege against compulsory self-incrimination. Cf. United States v. Gloria, 494 F.2d 477 (5th Cir. 1974).
The contention therefore boils down to one of evidentiary error in refusing to permit Mrs. Coleman to be placed on the stand for the jury to hear her — the car's owner — "take the Fifth," or to permit comment on this circumstance. As noted above, the circuits which have considered these questions have uniformly rejected such contentions. As was stated by the First Circuit, in the most recent opinion in the area:
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