U.S. v. Impson

• Decision Date: 10 May 1976
• Docket Number: No. 74--1683,74--1683
• Citation: 531 F.2d 274
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Boddy IMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 274

531 F.2d 274

UNITED STATES of America, Plaintiff-Appellee, v. James Boddy IMPSON, Defendant-Appellant.

No. 74--1683.

United States Court of Appeals, Fifth Circuit.

May 10, 1976.

Rehearing Denied July 14, 1976.

See 535 F.2d 286.

Melvyn Carson Bruder, Dallas, Tex., for defendant-appellant.

Frank D. McCown, U.S. Atty., John W. Sweeney, Jr., Asst. U.S. Atty., Ft. Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, SIMPSON and MORGAN, Circuit Judges.

SIMPSON, Circuit Judge:

On December 15, 1972, James Bobby Impson was found guilty by a jury of possession of counterfeit federal reserve notes, in violation of Title 18, U.S.C., Section 472. Following judgment of conviction he was sentenced to ten years confinement.

Upon his direct appeal of that conviction, we remanded his case to the district court for determinations of probable cause relating to his arrest and the attendant search of the car in which he was a passenger. United States v. Impson, 5 Cir. 1973, 482 F.2d 197. Impson sought certiorari from that decision contending that the Court of Appeals improperly remanded the case for a probable cause hearing and that the district court should have declared a mistrial because of prosecution testimony that Impson had made no statement to the police at the time of his arrest. The Supreme Court denied certiorari, 1973, 414 U.S. 1009, 94 S.Ct. 371, 39 L.Ed.2d 246. The district court, on our remand, found probable cause for both the arrest and the search of the automobile. We affirmed per curiam, United States v. Impson, 5 Cir., 506 F.2d 1055. Impson again petitioned for certiorari. The Supreme Court, having in the interim decided United States v. Hale, 1975, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, vacated our judgment and remanded the case for our consideration in the light of Hale. Impson v. United States, 1975, 422 U.S. 1031, 95 S.Ct. 2647, 45 L.Ed.2d 688. Comparison with Hale constrains us now to reverse appellant's conviction and remand for a new trial by the district court.

Hale was arrested and found in possession of money corresponding in amount to currency recently stolen during a robbery. At trial, Hale testified that his estranged wife gave him the money after receiving her welfare check that day, to purchase a money order for her. The Court observed 'In an effort to impeach Hale's explanation of his possession of the money, the prosecutor caused Hale to admit on cross-examination that he had not offered the exculpatory information to the police at the time of his arrest:

'Q. Did you in any way indicate (to the police) where the money came from?

A. No, I didn't.

Q. Why not?

A. I didn't feel it was necessary at the time."

United States v. Hale, 1975, 422 U.S. at 174, 95 S.Ct. 2133, at 2135--2146, 45 L.Ed.2d 99, at 103--104. The Court reversed Hale's conviction because of the admission of this testimony. Hale was not decided on constitutional grounds, the Court relying instead upon a determination that 'the probative value of respondent's pre-trial silence in this case was outweighed by the prejudicial impact of admitting it into evidence'. 422 U.S. at 173, 95 S.Ct. at 2135, 45 L.Ed.2d at 103. It follows that there may be instances in which the probative value of the silence testified to might outweigh its prejudicial impact, cases in which the error might be harmless, and thus cases in which a conclusion contrary to that of Hale is permissible. ¹ But we view the facts and rationale of Hale as so close to those here present as to preclude a different result from that the Supreme Court reached in Hale.

Since the facts of this case are fully reported at 482 F.2d 197, it is necessary for our purposes to relate only those facts bearing on the narrow issue of comment at trial on the defendant's silence at the time of his arrest. Impson was a passenger in a car which was stopped and searched--upon what has been determined to be probable cause--and in which counterfeit money was found. No counterfeit bills were found on Impson's person. At trial, the arresting officer, in response to government counsel's questions, testified as follows:

'Q. All right. Did you make any statement to Mr. Impson at the time you got him out of the car?

A. Did I make any statement?

Q. Yes.

A. I asked for identification; he showed it to me; I placed him under arrest.

Q. Did you indicate what you were placing him under arrest for?

A. Yes, sir.

Q. And what was that?

A. Suspicion of possession of counterfeit money.

Q. All right. Did Mr. Impson make any statement to you at that time or say anything at that time?

A. No, sir, he didn't.

MR. BRUDER (defense counsel): At this time we're going to object--excuse me.

MR. PARRETT (Assistant U.S. Attorney): Pass the witness.

THE COURT: Let Mr. Juarez make an objection.

MR. JUAREZ (defence so-counsel): Well, Your Honor, we object to that line of testimony on the basis that Mr. Impson wasn't advised of his right to remain silent at the time, and it infringes on his right to remain silent at the time of arrest.

THE COURT: Anything else?

MR. JUAREZ: No, Your Honor.

THE COURT: Well, I'm going to instruct the jury to disregard the last question and answer propounded by the Government; the answer of the witness; instruct them to disregard that.'

(Record on appeal 341--342).

The next morning the trial court denied a defense motion for mistrial because of the police officer's testimony as to Impson's silence. Impson thereafter took the stand and gave exculpatory testimony as to the circumstances of his arrest and his presence in the car.

As in Hale the trial court here instructed the jury to disregard the testimony objected to, and also as in Hale the court refused to grant a mistrial. In Hale the Supreme Court did not discuss any rehabilitative or curative effects of the court's admonition to the jury, merely observing in a footnote the Court of Appeals' determination that the error was not cured by the trial court's instructions. 422 U.S. at 175, n.3, 95 S.Ct. at 2136, 45 L.Ed.2d at 104. The District of Columbia Circuit, in the decision reviewed had analyzed the possible impact of the inadmissible testimony on Hale's defense, concluding:

'. . . 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 since it was apparently intended to indicate that the alibi had been fabricated sometime between arrest and trial.'

United States v. Anderson, 1974, 162 U.S.App.D.C. 305 at 312, 498 F.2d 1038, 1045, affirmed sub nom. United States v. Hale, supra.

In Hale the cross-examination revealing the defendant's post-arrest silence tended to impeach his prior testimony explaining that the money found on him (corresponding in amount to the money stolen in the robbery) had been given him by his estranged wife. In the present case appellant, following the testimony as to his silence elicited by the prosecutor, testified that he had merely gone 'bar hopping' with the owner/driver of the car in which the counterfeit money was found, following an accident to his own vehicle. In each case, the point upon which a defense was being constructed, a refutation of guilty knowledge by the explaining away of each defendant's possession--actual in the case of Hale, constructive in the case of Impson--of the incriminating currency was arguably damaged or impeached by proof of the defendant's silence when arrested. The Court in Anderson, supra, cited Stewart v. United States, 1961, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84, as support for the proposition that a curative instruction might in Hale's situation merely have emphasized to the jury that Hale had chosen to exercise his Fifth Amendment rights to remain silent and thus have aggravated the harmful effect of the prosecution's error. The same reasoning is applicable here. Following it, we view the curative instructions to the Impson jury as of no controlling significance.

Government counsel suggests to us that Hale is distinguishable because the fact of his silence at arrest came out during his cross-examination, whereas here the government trial counsel elicited testimony of Impson's silence during the prosecution's case in chief. We perceive no logical basis for the proposed distinction.

The probative value of silence, as analyzed by Mr. Justice Marshall in Hale, 422 U.S. at 171--177, 95 S.Ct. at 2134--2137, 45 L.Ed.2d at 105--106, is ordinarily minimal. For the distinction urged upon us to be significant, either the prejudice to the defendant is necessarily greater in the cross-examination context, or the probative value of the silence is more substantial when testified to during the prosecution's case in chief. Arguably, the prejudice to the defendant when cross-examined as to his prior silence, might be greater inasmuch as the claimed inconsistency would be more dramatically emphasized to the jury. On the other hand, the probative value of the defendant's silence when related by the arresting officer during the prosecution's case in chief would seem to receive less emphasis than it might if it arose during cross-examination. In Hale the government urged the Supreme Court to find an inconsistency between the defendant's silence during postarrest interrogation and his exculpatory testimony on the stand. The purpose was to analogize this situation to the use of statements taken from a defendant not properly advised of his Miranda ² rights. Use of such statements, ordinarily inadmissible, was approved by the Court for impeachment purposes in Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.

But in this case proof of Impson's post-arrest silence was elicited when his explanation had not yet been brought forward as part of his defense. There was a danger of jury prejudice in advance against any explanation Impson might offer. Impson faced a...