De Luna v. United States

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation308 F.2d 140
Docket NumberNo. 19037.,19037.
PartiesCarlos Garza De LUNA, Appellant, v. UNITED STATES of America, Appellee.
Decision Date15 August 1962

James R. Gillespie, San Antonio, Tex., for appellant.

Russell B. Wine, U. S. Atty., K. Key Hoffman, Asst. U. S. Atty., San Antonio, Tex., Ernest Morgan, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., for appellee.

Before BROWN, WISDOM, and BELL, Circuit Judges.

WISDOM, Circuit Judge.

The conflicting interests of the two co-defendants in this action have generated a narrow but important question relating to the scope of the privilege against self-incrimination: When one of two defendants jointly tried in a criminal proceeding in a federal court exercises his right not to testify, does the Fifth Amendment protect him from prejudicial comments on his silence made to the jury by an attorney for the co-defendant? Pointing to the fact that the United States attorney was free from blame, the Government argues that the general rule against commenting on the exercise of the privilege is inapplicable to the facts of this case. We reject this contention. In a criminal trial in a federal court an accused has a constitutionally guaranteed right of silence free from prejudicial comments, even when they come only from a co-defendant's attorney. If an attorney's duty to his client should require him to draw the jury's attention to the possible inference of guilt from a co-defendant's silence, the trial judge's duty is to order that the defendants be tried separately.

I.

Carlos Garza de Luna and Adolfo Gomez, cousins, were charged jointly in a two-count indictment with receiving and facilitating the transportation and concealment of a narcotic drug and with purchasing and acquiring a narcotic drug in violation of the Narcotic Drug Import and Export Act. Each hired his own attorney. Each attorney defended his client as he saw best, without regard to the interests of the other defendant. Before trial Gomez moved for a severance. The motion was denied. At the trial in San Antonio, Texas, de Luna, a Mexican national, did not take the stand. Gomez, a resident of San Antonio, took the stand and produced members of his family and other witnesses to testify in his behalf. He put all the blame on de Luna. According to Gomez, he was an innocent victim of circumstances; his only connection with the narcotics was when he and de Luna were riding in Gomez's automobile; de Luna saw the police coming, tossed a package (the narcotics) to him and told him to throw it out of the window. The police saw Gomez throw the package. De Luna's attorney argued that the man he represented was being made a scapegoat; that the police officers testified they had not seen de Luna toss the package to Gomez and had seen no movement in the car although they were alongside it; that the sole culprit was Gomez.

In accordance with his theory of the case and impelled by a proper sense of duty to his client, Gomez's attorney, in arguing to the jury, contrasted Gomez's willingness with de Luna's unwillingness to take the stand. He stated plainly that an honest man is not afraid to take the stand and testify.1 He said:

"Well, at least one man was honest enough and had courage enough to take the stand and subject himself to cross examination and tell you the whole story, and tell you that, `Yes, I first colored the story, but when I got back to my senses I told the truth, and that\'s the whole thing.\' ¶ You haven\'t heard a word from this man de Luna."

This comment followed on the heels of somewhat similar comment to which de Luna's attorney had objected strenuously as "inflammatory and prejudicial". These were not casual or isolated references; they were integral to Gomez's defense. And considering the case from Gomez's point of view, his attorneys should be free to draw all rational inferences from the failure of a co-defendant to testify, just as an attorney is free to comment on the effect of any interested party's failure to produce material evidence in his possession or to call witnesses who have knowledge of pertinent facts. Gomez has rights as well as de Luna, and they should be no less than if he were prosecuted singly. His right to confrontation allows him to invoke every inference from de Luna's absence from the stand.

The joint trial, the fact situation, and Gomez's defense placed the trial judge in a dilemma. At the time of the prejudicial remarks and again in his formal charge, he instructed the jury to disregard the fact that de Luna did not testify.2 Yet, in justice to Gomez, the trial judge owed and gave the following instruction:

"The defendant Adolfo O. Gomez has taken the stand and testified in his own behalf in this case. A defendant cannot, in a criminal case, be compelled to take the witness stand and to testify. Whether he testifies or does not testify is a matter of his own choosing.
"When, however, a defendant elects to take the witness stand and testify, then you have no right to disregard his testimony because he is accused of a crime. When a defendant does testify, he at once becomes the same as any other witness, and his credibility is to be tested by and subjected to the same tests as are legally applied to any other witness."

No objection can be taken to such instructions in the ordinary case. None can be taken in this case, as far as justice to Gomez is concerned. But here, on top of comments prejudicial to de Luna, such instructions led the jury in the very direction to which the comments of Gomez's attorney pointed.

Thus, the joint trial of the two defendants put Justice to the task of simultaneously facing in opposite directions. And Justice is not Janus-faced.

The jury found Gomez not guilty on both counts of the indictment, de Luna guilty on both counts. The district judge imposed a sentence of seven years.

II.

The history3 of the development of the right of silence is a history of accretions, not of an avulsion.4 The privilege against self-incrimination, even as a limited privilege, is not found in Magna Carta,5 the Petition of Right, the Bill of Rights of 1689, or other basic English sources of our liberties.6 The first major constitutional document in which it appeared was the Virginia Bill of Rights in 1776. Yet, from obscure beginnings and subject to eroding currents it has developed into what Dean Griswold has described as "one of the great landmarks in man's struggle to make himself civilized."7

The privilege has never lacked for critics — many of them distinguished jurists and legal scholars. They say, "If we assume the continuance of trial by an impartial jury before a competent judge in public, it is difficult to understand how an accused represented by competent counsel can be unfairly treated by being required to testify."8 The classic attack on the policy of the privilege was made by Jeremy Bentham: "Only the guilty profit from the exclusion the privilege."9 No less a judge than Justice Cardozo, in a passage often quoted, said: "Justice * * * would not perish if the accused were subject to a duty to respond to orderly inquiry".10 Professor Wigmore was consistently unfriendly to the privilege, especially to its recognition when there was no direct coercion by the Government and when there was no formal charge to which the unanswered questions relate; his writings are an inexhaustible quarry of quotations apt for use against the policy of the privilege.11 More often than not, the attack on the privilege has been oblique, directed at limiting its scope or undermining its effect by permitting judge and prosecutor to comment on a defendant's exercise of the privilege and permitting the fact-trier to draw all reasonable inferences.12 Criticism of the privilege can be supported by excursions into history to show that the privilege is not what it used to be;13 that, historically, it could not be asserted by one formerly accused or one not coerced directly by the State.14 But the critics, "in their over-emphasis on the history of the Fifth Amendment privilege overlook the fact that a noble principle often transcends its origins, that creative misunderstandings account for some of our most cherished values and institutions; such a misunderstanding may be the mother of invention."15

It may be historically true, and Professor Wigmore documents it, that in the first few hundred years of its growth the resistance to the oath ex officio as compulsory self-accusation represented mainly a jurisdictional struggle between State and Church, and between common law courts and ecclesiastical courts; it was "not to protect from answers in the king's court of justice". But the struggle against the inquisitio and oath ex officio on the ground that a man is entitled to be formally accused eventually transcended the jurisdictional questions.16 It may be that Sir Edward Coke, the first to use the maxim, nemo tenetur prodere seipsum,17 objected to the oath, not because of his interest in protecting the individual against the state, but because he objected to the intrusion of the clergy into the field of criminal law; the Court of High Commission and the Court of Star Chamber had no business putting an accused to the oath except in cases concerning marriages and wills. Nevertheless, the association of the prerogative courts with heresy and treason (crimes having to do with the individual's beliefs), the association of the Star Chamber with the rack, the opposition to the oath from Lollards, Puritans, Levellers, and other non-comformists led directly to the abolition of the High Commission and the Star Chamber, the prohibition of the oath,18 and the ultimate triumph of the accusatorial system, all in the general direction of the freedom to speak and the freedom not to speak. It may be that John Lilbourne did not object to answering questions relating to the specific charges against him; he objected to being questioned as to offenses with which he was not...

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    • June 21, 1972
    ...(2d Cir. 1960). The defense contention that a severance is mandated by the well-known and often misunderstood case of De Luna v. United States, 308 F.2d 140 (5th Cir. 1962), is devoid of merit. In Gurleski v. United States, 405 F.2d 253, 264 (5th Cir. 1968), cert. denied, 395 U.S. 977, 89 S......
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    • July 9, 1974
    ...severance is not mandated in this situation. And, of course, in the absence of a "head-on conflict between two defendants", the related De Luna rationale for severance does not apply. De Luna v. United States, 308 F.2d 140 (5th Cir. 1962). The De Luna rule is that when counsel for one defen......
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1 books & journal articles
  • Motion practice
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • March 30, 2017
    ...had no right to comment on other defendant’s silence, desire to do so was not grounds for severance); but see De Luna v. United States , 308 F.2d 140, 141 (5th Cir. 1962) (“If an attorney’s duty to his client should require him to draw the jury’s attention to the possible inference of guilt......

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