745 F.2d 840 (4th Cir. 1984), 79-5197, United States v. Silva

Docket Nº:79-5197.
Citation:745 F.2d 840
Party Name:UNITED STATES of America, Appellee, v. Daniel Nelson SILVA, Appellant.
Case Date:October 01, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 840

745 F.2d 840 (4th Cir. 1984)

UNITED STATES of America, Appellee,


Daniel Nelson SILVA, Appellant.

No. 79-5197.

United States Court of Appeals, Fourth Circuit

October 1, 1984

Argued June 9, 1983.

Page 841

[Copyrighted Material Omitted]

Page 842

David P. McCann, Charleston, S.C., for appellant.

Susan Z. Hitt, Asst. U.S. Atty., Columbia, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., Samuel K. Morgan, Jr., Lexington, S.C., Third Year Law Student on brief), for appellee.

Before HALL and PHILLIPS, Circuit Judges, and BULLOCK, [*] District Judge.

BULLOCK, District Judge:

Appellant Silva was convicted of violations of 18 U.S.C. Sec. 922(h), possession of a firearm by a convicted felon, and 18 U.S.C. Sec. 1071, harboring and concealing a fugitive. On appeal, Silva makes numerous evidentiary and procedural challenges.

Page 843

Factual Statement

On November 18, 1978, Robert Fieldmore Lewis, a convicted murderer, escaped from a Florida penitentiary. Later that evening, Lewis and Silva appeared together at the Florida motel room of Martha Ann Steinhorst, who had aided in Lewis's escape by providing him with a prison guard's uniform. The three watched the eleven o'clock news together, during which a report of Lewis's escape was telecast. Shortly thereafter, Silva left the motel room, while Lewis remained.

Two days later, on November 20, a federal warrant was issued in the Northern District of Florida for Lewis's arrest. Meanwhile, Silva and Lewis had embarked on separate paths which would ultimately meet in Santee, South Carolina.

On November 28, 1978, the FBI received information that Silva was to meet the fugitive at the Ramada Inn in Santee. On the basis of this information, the FBI assigned six agents, one posing as the desk clerk, to the motel. At approximately 2:30 a.m. on November 29, Appellant checked in under the name of George W. Allen. Before leaving the lobby, Appellant made a telephone call from the pay telephone there. Shortly thereafter, a truck left the fugitive in the motel parking lot.

Lewis was admitted to the Appellant's room, and a few moments later the FBI agents entered the room and arrested both men. After both were handcuffed, a search of one of the bags in the room uncovered two .38 caliber revolvers, ammunition, and materials for creating a disguise.

Silva, a previously convicted felon, was subsequently convicted of unlawful possession of a firearm in violation of 18 U.S.C. Sec. 922(h) and harboring a fugitive in violation of 18 U.S.C. Sec. 1071. A third count of the indictment, under 18 U.S.C. Sec. 924, resulted in a jury verdict of not guilty.

I. The Motion for Severance

Silva first contends the district court erred in failing to grant his motion to sever the indictment for the firearms charge from the indictment for harboring a fugitive. Silva argues that since the firearms charge had as a necessary ingredient his prior felony conviction the jury was unable to consider the harboring charge without this prejudicial knowledge. Silva claims that had the charges been severed, the jury would never have obtained this information, since he did not testify in his defense and the evidence therefore would have been inadmissible for character or impeachment purposes. Three circuits have addressed this problem and have reached varying results. United States v. Valentine, 706 F.2d 282 (10th Cir.1983); Panzavecchia v. Wainwright, 658 F.2d 337 (5th Cir.1981); United States v. Busic, 587 F.2d 577 (3d Cir.1978), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981).

In Busic, defendant was tried on a number of charges, including receiving firearms in violation of 18 U.S.C. Sec. 922(h). Busic argued that the trial court's failure to sever the Sec. 922(h) charge resulted in the prejudicial admission of his prior felony conviction. The Third Circuit Court of Appeals found no error, since defendant had raised an entrapment defense which permitted introduction of the prior convictions to prove predisposition. The Third Circuit thus endorsed an independent admissibility test--if evidence of the prior conviction is admissible on the other counts standing alone, then consolidation is not improper and the defendant will not be prejudiced. If the evidence is inadmissible on one count of a multi-count indictment, however, severance will be required.

We find the Busic approach unwieldly at best. It will oftentimes be difficult to forecast, in advance of trial, the admissibility of prior felony convictions since their admissibility may hinge on the defendant's trial tactics. Defense counsel may not wish to tip his hand as to a possible entrapment defense, for example, or indicate his intention to put the defendant on the stand, thus "opening the door" for introduction of the prior conviction. This secrecy is his prerogative. A defendant is entitled to "shield the theory of his defense from the prosecutor's

Page 844

scrutiny." United States v. Brinkman, 739 F.2d 977, 980 (4th Cir. July 26, 1984).

The Fifth Circuit took a more reasonable approach in Panzavecchia v. Wainwright, supra. That court was confronted with a habeas corpus proceeding involving the propriety of the joinder of an indictment for first degree murder with an indictment for possession of a firearm by a convicted felon under Florida law. Although the court found constitutional error in the joinder, it indicated that this was not an inexorable result.

Had the two offenses been tried separately, the counterfeiting conviction would never be admitted in the murder trial. However, as it turned out, the jury heard repeated references to the defendant's criminal past without any limiting instruction to relate this evidence only to the firearm violation and to disregard it altogether in considering the murder count. The proper balance between judicial economy and the prejudicial effect of evidence of prior convictions was not struck in this instance. The prejudice which Florida and the federal courts have proscribed clearly existed and this prejudice rose to such a level as to make the petitioner's trial fundamentally unfair and in violation of the fourteenth amendment.

658 F.2d at 341 (footnote omitted) (emphasis added). Accord United States v. Valentine, supra, 706 F.2d at 290 n. 7; 1 United States v. Roe, 495 F.2d 600, 604 (10th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 107, 42 L.Ed.2d 92 (1974).

Any prejudicial effect of the necessary introduction of the defendant's past conviction can, we feel, be avoided through the use of a limiting instruction. The trial judge repeatedly charged the jury to consider Silva's previous conviction only for the purposes of the firearms charge. We must presume that the jury heeded this instruction. See Spencer v. Texas, 385 U.S. 554, 561, 87 S.Ct. 648, 652, 17 L.Ed.2d 606 (1967); Murray v. Superintendent, 651 F.2d 451, 453-54 (6th Cir.1981).

Considerations of judicial economy reinforce our conclusion. Were Appellant to prevail in his plea that we create a per se rule that a charge under the firearms statute always be severed from any other criminal charge, duplicitous trials would be required. One found in the unlawful possession of a firearm will often be charged with another crime involving the use of that firearm. Requiring two trials, one for a charge which requires little more than proof of possession and the existence of the prior record, and one for the underlying criminal charge, would be unnecessarily redundant. See United States v. Parodi, 703 F.2d 768, 780 (4th Cir.1983). This is not to say that judicial economy is entitled to greater weight than defendant's right against self-incrimination. 2 We merely find that the use of a limiting instruction removes any constitutional infirmity.

II. Non-Disclosure of the Grand Jury Testimony

In an effort to impeach the testimony of prosecution witness Martha Ann Steinhorst, Appellant's counsel subpoenaed her previous state grand jury testimony. The Assistant State Attorney for Duvall County, Florida, site of the grand jury proceedings,

Page 845

appeared for the prosecution and testified that the grand jury testimony sought by Defendant was "of a highly sensitive nature" and related to on-going proceedings in the state of Florida. 3 He requested that the trial judge examine the grand jury minutes in camera to determine whether any inconsistencies existed between those proceedings and Steinhorst's in-court testimony. Chief Judge Simons agreed to the in camera inspection, with the consent of defense counsel. After a brief review of the thirty-nine page transcript, the trial judge reported that he found no substantial conflict in the two testimonies, although there were "minor differences as to times." Appellant contends that since the court indicated some discrepancies he should have been permitted a complete review of the transcript and allowed to recall the witness.

Had Steinhorst's testimony been given before a federal grand jury, we cannot doubt that it would have been error not to have required its disclosure. With the passage of the 1970 amendments to the Jencks Act, 18 U.S.C. Sec. 3500, Congress mandated that federal grand jury testimony is to be turned over to the defendant upon request when the grand jury witness testifies at trial.

This transcript concerns a state proceeding in Florida, however, and it has been held that the Jencks Act has no application to statements made to state officials. 4 United States v. Smith, 433 F.2d 1266, 1269 (5th Cir.1970) (statement to state police officer not to a Government agent and therefore not within scope of Act), cert. denied, 401 U.S. 977, 91 S.Ct. 1206, 28 L.Ed.2d 328 (1971). There is no evidence of close cooperation between the South Carolina prosecutors and the...

To continue reading