499 F.2d 179 (7th Cir. 1974), 73-1796, United States v. Bridges

Docket Nº:73-1796.
Citation:499 F.2d 179
Party Name:UNITED STATES of America, Appellee, v. Amos Lane BRIDGES, Appellant.
Case Date:January 12, 1974
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 179

499 F.2d 179 (7th Cir. 1974)

UNITED STATES of America, Appellee,

v.

Amos Lane BRIDGES, Appellant.

No. 73-1796.

United States Court of Appeals, Seventh Circuit.

January 12, 1974

Page 180

[Copyrighted Material Omitted]

Page 181

Norman S. London and Lawrence J. Fleming, St. Louis, Mo., for appellant.

Henry A. Schwarz, U.S. Atty., and William C. Evers, III, Asst. U.S. Atty., E. St. Louis, Ill., for appellee.

Before KILEY, Senior Circuit Judge, CUMMINGS, Circuit Judge, and HOFFMAN, Senior District Judge. [*]

KILEY, Senior Circuit Judge.

Defendant Bridges was convicted, by a jury, of unlawfully possessing and using an unregistered dynamite bomb to damage a building, in violation of 26 U.S.C. § 5861(c) and (d) and 18 U.S.C. §

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844(i) . 1 We reverse the conviction and remand for a new trial.

We recite the evidence in the light most favorable to the government. At approximately 9:30 p.m. on April 8, 1972, a building used by the Teamsters Union, of which Bridges was a member, was bombed in East St. Louis, Illinois. There had been a controversy between Bridges and the Union over non-payment of dues and a telephone bill, resulting in his suspension from the Union. Bridges had threatened to 'thump' the head of one Union official over the issue of the dues. A half hour before the bombing, two men were observed next to the building near a car that resembled Bridges'. Dynamite particles were found in the blast debris, and dynamite components were found in the swabs taken of Bridges' hands and the debris collected from the trunk of his car and the vacuum cleaner in his house.

I.

At the close of the government's case, the court denied Bridges' motion for acquittal. We find no error in that ruling. The evidence recited above was prima facie sufficient to justify an inference of guilt.

II.

Bridges contends that the court committed reversible error in denying his motion for mistrial after a government witness testified that Bridges refused to answer a question concerning his recent handling of explosives.

Bridges learned that he was a suspect in the case and surrendered himself, on the advice of counsel, on April 11, 1972 at a local police station. Federal agents arrived and, after reciting the Miranda warnings, interrogated him.

At the trial the prosecutor asked one of the agents:

Q. What questions did you ask of him and what answers did he give you?

A. I asked him if he handled any explosives. He declined to answer. 2

The court sustained a motion by Bridges' counsel to strike, and instructed the jury to disregard the answer, but denied his motion for a mistrial. The prosecutor thereafter asked the agent:

Q. Did you ask Mr. Bridges if he had handled any explosives recently?

A. Yes, sir.

Q. And what did he tell you when you asked that question?

A. He declined to answer. 3

Again the court denied a motion for a mistrial and repeated the first ruling. Subsequently the prosecutor asked another agent:

Q. Was Mr. Bridges asked if he had handled any explosive materials recently?

A. Yes.

Q. What did he reply?

A. He declined to answer. 4

The court for the third time denied a motion by Bridges' counsel for a mistrial.

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We hold that the court's denial of the motions for mistrial was constitutional error because the agents' testimony violated Bridges' Fifth Amendment right against self-incrimination and compels reversal of his conviction.

In recent opinions 5 we have expressed a concern over conduct of overzealous prosecutors. We shall presume in fairness that the prosecutor did not anticipate the agent's answer to the first question. But we cannot indulge that presumption with respect to the prosecutor's second and third series of questions which specifically elicited the prejudicial answers given to the first question. The prosecutor should have known that Bridges had the right not to answer, yet deliberately disregarded that right. In fact, he apparently claimed that he was entitled to disregard Bridges' rights. 6

In Kroslack v. United States, 7 Cir., 426 F.2d 1129, 1130-1131 (1970), this court responded to a similar, though less serious, violation, stating:

It was reversible error for the agent to testify that when the defendant was questioned he refused to make a statement. Baker v. United States, 5th Cir., 357 F.2d 11 (1966) . . .. We find little difference between the prejudice resulting from the testimony admitted in the case before us, and a prosecutor's comment before a jury on a defendant's exercise of his constitutional right not to take the witness stand. Such comments have been held to be reversible error. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The testimony elicited here could well have led the jury to infer guilt from defendant's refusal to make the statement. We think exercise of a constitutional privilege should not incur this penalty. Id. at 614, 85 S.Ct. 1229.

III.

Following Bridges' refusal to answer the questions...

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