U.S. v. Agee, s. 77-1675

• Decision Date: 18 June 1979
• Docket Number: 77-1689,Nos. 77-1675,s. 77-1675
• Citation: 597 F.2d 350
• Parties: UNITED STATES of America v. George AGEE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 350

597 F.2d 350

UNITED STATES of America v. George AGEE, Appellant.

Nos. 77-1675, 77-1689.

United States Court of Appeals, Third Circuit.

Argued Dec. 2, 1977.

Reargued En Banc Nov. 6, 1978.

Decided March 6, 1979.

Certiorari Denied June 18, 1979.

See 99 S.Ct. 2889.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Bonnie Brigance Leadbetter, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Douglas Riblet, Alan Turner, Asst. Defenders, Defender Association of Pa., Philadelphia, Pa., for appellant.

Argued Dec. 2, 1977.

Before GIBBONS and VAN DUSEN, Circuit Judges, and GERRY, ^* District Judge.

Reargued Nov. 6, 1978 In Banc.

Before SEITZ, Chief Judge, ALDISERT, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM, and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

This is an appeal by the defendant, George Agee, from his conviction in the district court of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (1976). Agee asserts four grounds for reversing his conviction: (1) The United States Attorney should not have introduced evidence which had been suppressed in a prior state prosecution arising out of the same incident; (2) the trial court did not include in its instructions to the jury a charge which Agee's counsel had requested; (3) it was disclosed to the jury that in a conversation with the police prior to his arrest, Agee did not inform them that there were narcotics in his car; (4) the trial judge questioned Agee in the presence of the jury regarding his decision to waive his Fifth Amendment right not to testify.

While all of the issues raised by Agee on this appeal have had our attention, it is the third issue concerning Agee's conversation with the police prior to his arrest that resulted in our ordering rehearing of this appeal En banc. ¹ Agee claims in connection with this issue that the Supreme Court's decisions in United States v. Hale ² and Doyle v. Ohio ³ require the reversal of his conviction. This is so, he argues, because his exercise of the right to remain silent was disclosed to the jury. Contrary to Agee's argument, we hold that his rights under Hale and under the Fifth Amendment were not violated. Finding no merit in Agee's other arguments, we affirm.

I

Agee was arrested on February 12, 1976 by Philadelphia Police Officers Michael Zagursky and Robert Wissman. The arresting officers testified that they observed Agee driving an automobile which made two turns without signalling. They followed Agee's vehicle and waived it over to the side of the road. They then left their vehicle and walked up to the car which they had stopped. Officer Wissman testified that he observed that the driver, Agee, was attempting to conceal under the seat a foil package containing glassine packets of tan powder. As he approached the car on the passenger's side, Officer Zagursky saw a similar package on the floor in front of the passenger, Andrew Smith. Believing the powder in the packages to be heroin, they placed Agee and Smith under arrest and seized the foil packages. Subsequent analysis revealed that the packages contained a mixture of heroin, quinine, procaine and reducing sugar.

A federal grand jury returned an indictment charging Agee and Smith with possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (1976). After a trial at which Agee testified but Smith did not, the jury found both defendants guilty of the charge. After sentencing, ⁴ Agee appealed from his conviction; he also appealed from the trial court's order denying his motion for entry of a judgment of acquittal or, in the alternative, for a new trial.

II

A

Agee testified at his trial, giving an account of the events leading to his arrest on February 12, 1976. On direct examination, he testified that, on that date, Smith was a passenger in Agee's unlicensed taxicab, and that he may have been a passenger in his taxicab on prior occasions. While Agee was driving with Smith as his passenger, a policeman in a patrol car signalled to him to pull over to the side of the road. He did so and then informed his passenger that they had been stopped by the police:

A. "I pulled over on the side and so my passenger, Smith, asked me he said, 'Why are you stopping.' I said, 'The policeman is in back of me. They're pulling me over.' Smith said to me, 'I have dope on me.' He throwed a bag of silver foil bag over across over to me and I picked it up. I was going to throw it back on him. I didn't know whether to throw it back on him or throw it out the window or what.

A. I started to throw it over to him. I didn't know whether to throw it to him or throw it out the window. Then I got a little thing in the center of my car called a got a little thing I could lift up.

Q. Is that the console?

A. Console, yes. So I tried to lift up this console to put it in there. I couldn't get it up because I used, always would use a pencil to stick it in one of those holes to push it up if I want to put something in there. So I couldn't hide it under there. So I put it under my seat and I got out of my car right away.

Q. What happened next?

A. I got out of my car. I walked back toward the policeman."

His testimony regarding the events immediately preceding his arrest was as follows:

"Now, I thought that they felt like they were stopping me because I didn't have no brakelights. This is why I thought they were stopping me.

So anyway I come to the back. So I told the policeman, I said, 'I know why you're stopping me, because I don't have any brakelights.'

So I showed him my owner's card and my driver's license. So he looked at my owner's card and my driver's license. So he asked me, you know, so he said, 'Do you have any weapons on you?' So I said, 'No, I don't have any weapons.'

He said, 'Do you have any dope?' So I said, 'No, I don't have no dope on me.'

So he searched me. So then I went to open up the trunk of my car . . . . The police officer didn't bother about looking into the trunk. He went straight to the front of my car. He looked underneath the seat. He found this package that I had stuck underneath the seat."

After the completion of Agee's direct testimony, he was cross-examined first by Smith's attorney and then by the government. During his cross-examination of Agee, Smith's counsel asked Agree whether he had "made any statement to the police at any time?" Agee replied that he had not. The government then asked a series of questions which retraced Agee's testimony on direct examination. Agee admitted that, at the time he left his car to speak with the police, he knew that there were drugs in Smith's possession. Agee also admitted that he had concealed some of those drugs under his seat. He was then asked whether his purpose in approaching the policemen was "to keep the police from coming up to your car." Agee replied that "(t)hat's what I had in mind." He further testified that "what was in (his) mind" was to "tell Smith to take his stuff and get out of my car". The prosecutor then asked Agee:

Q. But it wasn't in your mind to say to the police, "That man in my car has dope. Arrest him."?

A. No, ma'am.

On Redirect examination, Agee testified that he had not told the police that Smith had drugs because he wanted to consult with a lawyer and did not believe that the policemen would tell the truth.

During their summations, the attorneys for both Smith and the government returned to the subject of Agee's conversation with the police prior to his arrest. Smith's counsel argued that the jury should consider Agee's "testi(mony) that he did not advise the police as to what happened in the car." The prosecutor reviewed Agee's account of what he did and did not tell the police prior to his arrest:

Did he not, when he, intentionally knowing that these were narcotics, hide the narcotics from the police, went back to the police car and attempted to diver (sic) the police from finding the narcotics instead of saying to the police, "Hey, that guy has dope. Arrest him," when he conceals the narcotics from the police with the intention of giving them back to Smith, knowing that in all probability Smith is going to sell them?

Agee contends that these were "references to and comments on (his) exercise of his right to remain silent (and) were improper and require a new trial." Br. for Appellant at 12-13.

The government has urged that this court may not consider Agee's Fifth Amendment claim, because Agee did not object at trial to the questions and to the parts of the summation which purportedly referred to Agee's "silence" prior to his arrest. The record reveals that prior to the trial, Agee's attorney had made a motion to exclude questions regarding the "defendant's silence at the time of arrest." The district court declined to rule on the motion At that time. However, the court stated that during the trial, it would, out of the hearing of the jury, entertain a request for a ruling and that it would give an appropriate instruction regarding the defendant's right to remain silent. During the trial, Agee's counsel failed in each instance to object to the questions and arguments which he now asserts were references to his client's silence at arrest. Because we hold that no error occurred which would have been reversible even if timely objections had been made, we need not consider whether the "plain error" doctrine would have any application to these circumstances. ⁵

B

In two recent decisions, United States v. Hale ⁶ and Doyle v. Ohio, ⁷ the Supreme Court has considered whether a prosecutor may ask questions or make comments which reveal to the jury that the defendant exercised his right to remain silent After his arrest. In Hale, a defendant who had been charged with robbery in the district court for the District of Columbia testified that the money which the police had found on his person had been given to him by his wife. The prosecution...