U.S. v. Foster, No. 83-1792

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON, Chief Judge, and WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA, STARR and SILBERMAN; Opinion for the Court filed by SCALIA; SCALIA
Citation251 U.S. App. D.C. 267,783 F.2d 1082
Decision Date14 February 1986
Docket NumberNo. 83-1792
PartiesUNITED STATES of America v. Bernard FOSTER, Appellant.

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.

Page 1083

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

Page 1084

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...

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51 practice notes
  • Morales v. United States, No. 18-CF-734
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 8, 2021
    ...this court and the D.C. Circuit to appeals challenging the sufficiency of the evidence to support a conviction. United States v. Foster , 783 F.2d 1082 (D.C. Cir. 1986) (en banc); Hairston v. United States , 497 A.2d 1097, 1104 n.12 (D.C. 1985) ; Franey v. United States , 382 A.2d 1019 (D.C......
  • State v. Perkins, No. 17099.
    • United States
    • Supreme Court of Connecticut
    • September 28, 2004
    ...v. Contreras, 667 F.2d 976, 980 (11th Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982); United States v. Foster, 783 F.2d 1082, 1085-86 (D.C.Cir.1986). In addition, the state has pointed out that at least thirty-one states apply the waiver rule. See State v. Eastlack, ......
  • Church of Scientology of California v. I.R.S., No. 83-1856
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 27, 1986
    ...recent practice of issuing en banc opinions on legal issues, as opposed to concrete factual scenarios, see also Foster v. United States, 783 F.2d 1082 (D.C.Cir.1986) (en banc)." Dissent at 172 n. 1. That concern must logically extend, of course--and should indeed have heightened application......
  • In the Matter of The Pers. Restraint Petition of Mansour Heidari, No. 63040–7–I.
    • United States
    • Court of Appeals of Washington
    • January 24, 2011
    ...on the lesser included offense. 382 F.2d 129, 137 n. 18, 142 (D.C.Cir.1967), overruled on other grounds by United States v. Foster, 783 F.2d 1082, 1085 (D.C.Cir.1986) (en banc). The remaining cases on which Gilbert relies, Wills and Daniels, provide no analysis of the issue. Wills v. State,......
  • Request a trial to view additional results
51 cases
  • Morales v. United States, No. 18-CF-734
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 8, 2021
    ...this court and the D.C. Circuit to appeals challenging the sufficiency of the evidence to support a conviction. United States v. Foster , 783 F.2d 1082 (D.C. Cir. 1986) (en banc); Hairston v. United States , 497 A.2d 1097, 1104 n.12 (D.C. 1985) ; Franey v. United States , 382 A.2d 1019 (D.C......
  • State v. Perkins, No. 17099.
    • United States
    • Supreme Court of Connecticut
    • September 28, 2004
    ...v. Contreras, 667 F.2d 976, 980 (11th Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982); United States v. Foster, 783 F.2d 1082, 1085-86 (D.C.Cir.1986). In addition, the state has pointed out that at least thirty-one states apply the waiver rule. See State v. Eastlack, ......
  • Church of Scientology of California v. I.R.S., No. 83-1856
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 27, 1986
    ...recent practice of issuing en banc opinions on legal issues, as opposed to concrete factual scenarios, see also Foster v. United States, 783 F.2d 1082 (D.C.Cir.1986) (en banc)." Dissent at 172 n. 1. That concern must logically extend, of course--and should indeed have heightened application......
  • In the Matter of The Pers. Restraint Petition of Mansour Heidari, No. 63040–7–I.
    • United States
    • Court of Appeals of Washington
    • January 24, 2011
    ...on the lesser included offense. 382 F.2d 129, 137 n. 18, 142 (D.C.Cir.1967), overruled on other grounds by United States v. Foster, 783 F.2d 1082, 1085 (D.C.Cir.1986) (en banc). The remaining cases on which Gilbert relies, Wills and Daniels, provide no analysis of the issue. Wills v. State,......
  • Request a trial to view additional results

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