U.S. v. Edwards, 77-5583

• Decision Date: 21 July 1978
• Docket Number: No. 77-5583,77-5583
• Citation: 576 F.2d 1152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul EDWARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1152

576 F.2d 1152

UNITED STATES of America, Plaintiff-Appellee, v. Robert Paul EDWARDS, Defendant-Appellant.

No. 77-5583.

United States Court of Appeals,

Fifth Circuit.

July 21, 1978.

Lucien B. Campbell, Federal Public Defender, C. Larry Mathews, Jr., Asst. Federal Public Defender, El Paso, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., Frank Walker, Asst. U. S. Atty., El Paso, Tex., James E. Bock, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

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

Before COLEMAN, GEE and RUBIN, Circuit Judges.

PER CURIAM:

On May 2, 1977, defendant Edwards rented an automobile from a Hertz office in Atlanta. He used the name of Charles Townsend, an acquaintance, and rented the car with an American Express card issued to Townsend. Though Edwards had previously visited Townsend in Oklahoma, Townsend testified that he had not given the driver's license or credit card to Edwards.

On June 1, 1977, Edwards returned from Mexico at El Paso when he was stopped by a border guard. At first he claimed to be Townsend but later he admitted his real identity. The defendant, his three fellow passengers and the car were searched. The guard found the Hertz rental agreement in the glove compartment and Edwards' real driver's license in the boot of one of the passengers.

Defendant was tried and convicted below for violation of the Dyer Act, 18 U.S.C. § 2312 (interstate transportation of stolen vehicle). He appeals.

The Comment on Edwards' Silence.

In his closing argument the prosecutor stated But look, the point is, ladies and gentlemen, when he did finally fess up to the fact that he was the man in this driver's license here, did he even tell them hey when they also found Government's Exhibit No. 1 (the rental contract) in his glove compartment, did he say, "Hey, wait a minute, let me tell you what the story is. I got this car a month ago over in Atlanta, Ga. I've been down visiting relatives . . . ." or whatever reasonable explanation he might have, did he give it to them? No way. Not to this good day. No way. Remember that ladies and gentlemen, there was no reasonable explanation given.

At this point defense counsel objected to the prosecutor's statement on the ground that it was a reference to Edwards' failure to testify not that it was a reference to defendant's silence at arrest. The judge immediately instructed the jury that defendant was under no obligation to testify.

Were these statements by the prosecutor a reference to defendant's silence? A comment is deemed to be such a reference if either (1) it was the prosecutor's manifest intention to refer to the defendant's silence, or (2) the remark was of such a character that the jury would "naturally and necessarily" take it to be a comment on defendant's silence. See United States v. Rochan,563 F.2d 1246, 1249 (5th Cir. 1977).

Despite the apparent sense of the prosecutor's statements, the government contends that they were not a reference to Edwards' silence but rather a permissible reference to the standard presumption, indulged in in Dyer Act cases, that in the absence of some reasonable explanation a jury may infer knowledge that a vehicle was stolen from the fact that defendant was found in possession of it shortly after the time it was, in fact, stolen. We have construed comments on the absence of a reasonable explanation in this manner, e. g., United States v. Ward, 552 F.2d 1080 (5th Cir. 1977), but we think the contention somewhat far-fetched when made on the facts of this case. Defendant's knowledge that the car was stolen was not at issue in the trial. The evidence showed conclusively that he had "rented" the car and been in continuous possession of it. Whatever the facts about its "stolenness" might be, it was undisputed that Edwards knew them; he was their architect. There was no occasion to draw inferences from Edwards' mere possession of "stolen" property. Once the factfinder concluded the car was stolen its inquiry, on these facts, was at an end. Edwards was the thief. Given these circumstances and the content of the remarks themselves, then, we think it fairly clear that the prosecutor meant his comments as remarks on defendant's silence upon arrest and perhaps also on his failure to take the stand. ("Not to this good day"). At all events, it seems the jury would "naturally and necessarily" so interpret them.

With limited exceptions not applicable here, it is the rule that a prosecutor may not comment on a defendant's silence at arrest. See Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Henderson, 565 F.2d 900 (5th Cir. 1978). Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), prohibits the use of such evidence even to impeach a defendant's testimony at trial. Such comments may constitute plain error, United States v. Henderson, supra at 905, and a judge's cautionary instruction will not suffice to cure the error. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); United States v. Henderson, supra. Thus, defendant's failure to object on these grounds does not preclude review. Moreover, most of these observations apply equally to comments on the defendant's failure to take the stand, and defendant raised a timely objection on this ground.

Even though it appears that the defendant's constitutional rights were violated by the prosecutor's comments on his silence at arrest and his failure to testify, such violations need not lead to reversal if harmless beyond a reasonable doubt. Chapman v. United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct 1705, 52 L.Ed.2d 393 (1977...