U.S. v. Foster

• Decision Date: 14 February 1986
• Docket Number: No. 83-1792,83-1792
• Citation: 251 U.S. App. D.C. 267,783 F.2d 1082
• Parties: UNITED STATES of America v. Bernard FOSTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1082

783 F.2d 1082

251 U.S.App.D.C. 267

UNITED STATES of America v. Bernard FOSTER, Appellant.

No. 83-1792.

United States Court of Appeals District of Columbia Circuit.

Argued En Banc Dec. 5, 1985.

Decided Feb. 14, 1986.

J. Peter Byrne, Washington, D.C., (appointed by this court) for appellant.

Michael W. Farrell, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Washington, D.C., was on brief, for appellee. Paul L. Knight, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

James Klein and Mark S. Carlin, Attys., District of Columbia Public Defender Service, Washington, D.C., were on brief for amicus curiae urging continued application of the existing rule.

Before ROBINSON, Chief Judge, and WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA, STARR and SILBERMAN, Circuit Judges.

Opinion for the Court filed by SCALIA, Circuit Judge.

SCALIA, Circuit Judge.

This is an appeal from conviction, after jury trial, on charges of possessing an unregistered firearm in violation of 26 U.S.C. Sec. 5861(d) (1982), and possessing a firearm not identified by serial number in violation of 26 U.S.C. Secs. 5842, 5861(i). The firearm in question was a short-barreled shotgun found by the Metropolitan Police Department at the Argyle Variety Store in Northwest Washington, on a shelf beneath the counter at which the defendant was working. The principal basis of appeal is that there was inadequate evidence to establish the "knowing dominion and control," United States v. Whitfield, 629 F.2d 136, 143 (D.C.Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 875, 66 L.Ed.2d 812 (1981), necessary for constructive possession of an illegal firearm, see United States v. Lewis, 701 F.2d 972, 973 (D.C.Cir.1983). Highly relevant to this point is evidence introduced by the defendant, after the District Court's denial of his motion for acquittal at the conclusion of the government's case, that the defendant was not merely an occasional worker behind the counter, but was the manager of the store.

It has been the law of this circuit, first announced by dictum in Cephus v. United States, 324 F.2d 893, 895-97 (D.C.Cir.1963), that objection to denial of a motion for judgment of acquittal made at the close of the government's case-in-chief is not waived by the defendant's proceeding with the presentation of his evidence, so that the validity of an ensuing conviction must be judged on the basis of the government's initial evidence alone. See, e.g., United States v. Lewis, 701 F.2d at 973. Because this circuit is apparently the only federal jurisdiction to hold that view, and because in the present case the subsequently introduced evidence was of potentially determinative importance, on the motion of the panel hearing the case the court agreed to decide en banc the following issues:

(1) Should this Circuit abandon the so-called "nonwaiver" rule announced in Cephus v. United States, ...?

(2) If so, should such change be effected prospectively?

The full court has had the benefit of briefing and oral argument by the parties, and of briefing by the District of Columbia Public Defender Service as an invited amicus.

I

Although the nonwaiver rule was first applied as a holding by this court in Austin v. United States, 382 F.2d 129, 138 & n. 20 (D.C.Cir.1967), the opinion in that case relied upon Cephus, which remains the only reasoned justification for the rule contained in our opinions. Cephus frankly acknowledged that the rule was contrary to federal authority:

[M]ost jurisdictions, including Federal circuits, have consistently followed the waiver rule; and the Supreme Court, in a case from the Ninth Circuit, has provided at least a dictum supporting it.

324 F.2d at 896 (footnotes omitted). The Supreme Court case alluded to was United States v. Calderon, 348 U.S. 160, 164 & n. 1, 75 S.Ct. 186, 188 & n. 1, 99 L.Ed. 202 (1954)--and though it was assuredly "at least a dictum" it was more likely a holding. Not only did the Court describe the waiver rule as law, but it specifically relied on the defendant's testimony, offered after his motion to acquit was denied, in finding sufficient evidence of the crime of income tax evasion. Id. at 167, 75 S.Ct. at 189.

The Cephus court felt, however, that the waiver rule had been "imported from civil into criminal trials without considering the demands of our accusatorial system of criminal justice." 324 F.2d at 896-97 (footnote omitted). Although quoting from a New Jersey case to the effect that the waiver rule " 'comes perilously near compelling the accused to convict himself,' " id. at 896 (quoting State v. Bacheller, 89 N.J.L. 433, 436, 98 A. 829, 830 (N.J.1916)), Cephus 's analysis did not rest upon any constitutional imperative. Rather, at the heart of its reasoning was the notion that requiring the defendant to forgo presentation of his case if he wishes to preserve his objection to denial of his motion to acquit is requiring him to "gamble on a prediction that the jury or appellate court will find [the government's] evidence insufficient," 324 F.2d at 896--suggesting that under such compulsion there is no genuine waiver in the sense of a known and voluntary relinquishment of rights. Moreover, the court noted that what might have been viewed as the technical justification for finding waiver (viz., that the defendant had no categorical right to a ruling upon his motion of acquittal until he had rested his case) had been eliminated by Rule 29(a) of the Federal Rules of Criminal Procedure, 324 F.2d at 896-97. To the extent that Cephus rests on this rejection of a fictional "waiver," the foundation of its reasoning has been eroded by our recent en banc decision in United States v. Byers, 740 F.2d 1104 (D.C.Cir.1984), dealing with the similar assertion that a criminal defendant's so-called "waiver" of his fifth amendment right by introducing psychiatric testimony (making him subject to compulsory examination by a government psychiatrist) is not a "genuine" waiver:

The eminent courts that put [the "waiver" theory] forth intended [it], we think, not as [an] explanation[ ] of the genuine reason for their result, but as [a] device[ ]--no more fictional than many others to be found--for weaving a result demanded on policy grounds unobtrusively into the fabric of the law.... [T]hey have denied the Fifth Amendment claim primarily because of the unreasonable and debilitating effect it would have upon society's conduct of a fair inquiry into the defendant's culpability.

Id. at 1113. So also with the "waiver" here; it is a conventional fiction used to describe and produce the result that the courts will not blind themselves to incriminating evidence introduced by the defendant who chooses to respond, rather than to demur, to the government's case. As the Fifth Circuit has put it:

The doctrine's operative principle is not so much that the defendant offering testimony "waives" his earlier motion but that, if he presents the testimony of himself or of others and asks the jury to evaluate his credibility (and that of his witnesses) against the government's case, he cannot insulate himself from the risk that the evidence will be favorable to the government. Requiring the defendant to accept the consequences of his decision to challenge directly the government's case affirms the adversary process.

United States v. Belt, 574 F.2d 1234, 1236-37 (5th Cir.1978) (footnote omitted).

Of course underlying Cephus 's refusal to accept the fictional "waiver" was its policy judgment--similar to that urged by appellant and amicus here--that the result this convention produced was inadequate to "the demands of our accusatorial system of criminal justice." 324 F.2d at 897. Specifically, the Cephus court felt that the waiver rule "seriously limits the right of the accused to have the prosecution prove a prima facie case before he is put to his defense." Id. at 896 (footnote omitted). That policy justification has also been rendered questionable by subsequent litigation arising in this circuit. The Supreme Court's opinion last term in Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), decided in an analogous context that the government's initial failure to make out its case, and the trial judge's erroneous refusal to dismiss the prosecution at that stage, can be disregarded when the case continues and results in a conviction supported by adequate evidence. Specifically, Richardson held that if the trial judge refuses to enter a judgment of acquittal on motions made at the close of the government's case and again at the close of all the evidence, whereafter the jury fails to agree upon a verdict, the bar of double jeopardy does not prevent the defendant from being retried, and convicted on the basis of the evidence at the second trial, "[r]egardless of the sufficiency of the evidence at petitioner's first trial." Id. 104 S.Ct. at 3086. The policy judgment that Richardson and the well established waiver rule share is that a defendant demonstrated to be guilty beyond a reasonable doubt on the basis of all the valid and admissible evidence will not be set free merely because, had an earlier erroneous ruling been made correctly, the trial would have ended before sufficient evidence to convict had been introduced. That balance between the procedural rights of the defendant and protection of society might have been struck differently; but the fact is that it has not been.

At the time Cephus, and later Austin, was decided, there was perhaps some reason to hope that the traditional rule we rejected would generally be displaced, and that the new rule we announced would find a broad acceptance. That hope has proved illusory. Although one treatise describes the waiver rule's status as "uncertain" in several circuits, 2 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE Sec. 463 at 647 (2d ed. 1982), it is not clear that any other circuit has ever actually repudiated it. One...