Groshart v. United States

• Decision Date: 27 March 1968
• Docket Number: No. 21517.,21517.
• Citation: 392 F.2d 172
• Parties: Jerry Warren GROSHART, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

392 F.2d 172 (1968)

Jerry Warren GROSHART, Appellant, v. UNITED STATES of America, Appellee.

No. 21517.

United States Court of Appeals Ninth Circuit.

March 27, 1968.

Harry D. Steward (argued), Federal Defenders, Inc., San Diego, Cal., for appellant.

Edwin L. Miller, Jr. (argued), U. S. Atty., Phillip W. Johnson, Asst. U. S. Atty., San Diego, Cal., for appellee.

Before MERRILL and ELY, Circuit Judges, and BYRNE, District Judge.

ELY, Circuit Judge:

Groshart appeals from his conviction, following a jury trial, of having smuggled and concealed marijuana in violation of 21 U.S.C. § 176a and of having smuggled amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545.

Groshart is a United States citizen. He was arrested on April 10, 1966, when he and a companion attempted to enter the United States from Baja California, Mexico. At the inspection point for the border crossing at San Ysidro, California, in the course of a routine border inspection, the Customs Inspector noticed that the spare tire of the station wagon being driven by Groshart was not in the tire well. This prompted the Inspector to cause Groshart to remove the top of the tire well. Inside, the Inspector saw a number of packages containing a substance later identified as marijuana. Further inspection disclosed that the tire well contained sixteen packages of marijuana and two jars of amphetamine tablets and barbiturate capsules and that the side panels of the vehicle contained an additional sixteen packages of marijuana. Both Groshart and his companion were placed under arrest.

At approximately 2:30 a. m. on the morning of the 10th, a Customs Agent, in the presence of a Supervisory Customs Port Investigator, began to interrogate Groshart. Before the interrogation commenced, the Customs Agent advised Groshart "that he was under arrest for smuggling marijuana into the United States and that he didn't have to make any statement and any statement he made could be used against him, or anyone else, and that he had a right to get an attorney any time he wanted one." The Customs Agent did not, however, advise Groshart that an attorney would be appointed to represent him if he was indigent and that he had a right to the presence of an attorney during any questioning.

During the course of the interrogation, Groshart informed the officers that he had been contacted on April 8th in San Jose, California, by a person identified only as "John" and that John had asked him if he would drive the station wagon to Mexico for the purpose of picking up a load of marijuana. Groshart further stated that on the morning of April 9th, he had met John, had received the station wagon, and had driven it to Mexico and parked it near a park in Tijuana, leaving it there for approximately four hours.

At the trial, before the jury, certain of Groshart's direct testimony was in conflict with the statements he had earlier made to the Customs Agent. He testified that he obtained the station wagon through a friend named Dick Long, that Long had agreed to loan his car to appellant for a trip to Mexico, and that Long had later changed his mind about loaning his own car. Groshart explained, however, that Long did obtain the car of one of his friends for Groshart to use, on the pretense that Groshart was "going surfing or something," and that this vehicle was the station wagon in which the contraband was found.¹ Groshart further testified that the station wagon was parked in Tijuana for approximately ten hours, while he and his companion shopped and entertained themselves in the city, and that he had not, until the inspection, known of the presence of the contraband in the vehicle.

The District Court ruled that Groshart's statements made during the interrogation could not be fully admitted into evidence, since it was apparent that they were obtained in violation of the rules established in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966). However, after hearing argument and testimony in the absence of the jury, the district judge ruled that certain portions of these statements were admissible as evidence to impeach Groshart's testimony. In view of this ruling, Groshart admitted during cross-examination that he had stated during the interrogation that one "John" had contacted him on April 8th and asked him to drive the station wagon to Mexico. The Customs Agent then testified that Groshart had also stated that he had in fact received the car from John and had left it parked in Tijuana for about four hours. In accordance with the District Court's ruling, to which proper objection was made, all references to the purpose of the trip made by Groshart during the interrogation — that is, the purpose of obtaining marijuana — were omitted from testimony given in the presence of the jury. The District Court instructed the jury that evidence of the earlier, inconsistent statements was admitted only for impeachment purposes.

The only specification of error is that this impeaching evidence was secured in violation of the fifth amendment and therefore should not have been admitted. The contention is valid.

In Miranda the Supreme Court held that

"when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

384 U.S. at 478-479, 86 S.Ct. at 1630. Although the interrogation in question here occurred prior to the decision in Miranda, the rules of that case apply to trials commenced after the date of the decision. Johnson v. State of New Jersey, 384 U.S. 719, 733, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Here, the trial began on August 23, 1966; hence, the Miranda standard must be met. We must agree with the District Court that the statements made by Groshart during the interrogation were obtained without there having been compliance with the subsequently announced requirements of Miranda. Groshart was not informed prior to the interrogation that he had a right to the presence of an attorney during the questioning and that if he could not afford an attorney, one would be appointed for him prior to any questioning.²

As indicated previously, despite its holding that the incriminating statements were obtained in violation of the Miranda rules, the District Court ruled that certain parts of the statements could be admitted "for the sole purpose of impeaching." The correctness of this ruling is the crucial issue before us. See generally Kent, Miranda v. Arizona — The Use of Inadmissible Evidence for Impeachment Purposes, 18 W.Res.L.Rev. 1177 (1967); Comment, The Impeachment Exception to the Exclusionary Rules, 34 U.Chi.L.Rev. 939 (1967). The district judge stated the following conditions for admission of the parts of Groshart's statements: "The illegally obtained evidence or statement must not prove guilt, but may only be used to show unreliability of the witness. The evidence may not be used to impeach the defendant's denial of the material element of the offense, or to contradict his version of the facts constituting the offense." The district judge based this ruling upon the holding of the Supreme Court in Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1953). There, the defendant had been indicted in 1950 for possession of heroin, but the indictment had been subsequently dismissed because the only evidence of such possession had been obtained by an illegal search and seizure in violation of the fourth amendment. The defendant, however, was again indicted in 1952 for another, distinct offense of possession of heroin. In defense of this second charge, the defendant testified before the jury that he had never had any heroin in his possession. The trial court thereafter allowed the Government to introduce the evidence of the defendant's earlier possession for the purpose of impeaching his testimony. The evidence was admitted over the objection that the impeaching evidence had been obtained in violation of the fourth amendment. The Supreme Court sustained the trial court's ruling. It wrote:

"It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government\'s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.

"* * * Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government\'s disability to challenge his credibility."

347 U.S. at 65, 74 S.Ct. at 356.

Following the Supreme Court's decision in Walder, the courts of appeals were presented with a number of cases concerning this same issue and involving situations more similar to the present one than was that in Walder. The majority of...