U.S. v. Griggs, 82-5391

• Decision Date: 10 July 1984
• Docket Number: No. 82-5391,82-5391
• Citation: 735 F.2d 1318
• Parties: 15 Fed. R. Evid. Serv. 1951 UNITED STATES of America, Plaintiff-Appellee, v. Charles D. GRIGGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

735 F.2d 1318

15 Fed. R. Evid. Serv. 1951

UNITED STATES of America, Plaintiff-Appellee, v. Charles D. GRIGGS, Defendant-Appellant.

No. 82-5391.

United States Court of Appeals, Eleventh Circuit.

July 10, 1984.

Archibald J. Thomas, III, Howard W. Skinner, Asst. Federal Public Defender, Jacksonville, Fla., for defendant-appellant.

Thomas E. Morris, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY and HENDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

PER CURIAM.

Charles Griggs appeals his conviction in the United States District Court for the Middle District of Florida of conspiracy to pass counterfeit money. 18 U.S.C. Sec. 371. On appeal, Griggs contends that the prosecutor impermissibly commented on his election not to testify, that the district court erred in admitting certain hearsay statements and that collateral estoppel bars his reprosecution on the current indictment.

This case comes to us with a fairly complicated procedural history, the explanation of which is central to a complete understanding of Griggs' assignments of error. Griggs was first indicted in May of 1979 on three counts of passing counterfeit money in violation of 18 U.S.C. Sec. 472. Count I charged that on April 20, 1979, Griggs passed fake bills to employees at the Twelve North Restaurant in Jacksonville, Florida. Count II alleged the same offense on the same date but at the Page One Lounge. Finally, in Count III, Griggs is accused of giving an additional bill to another employee of the Page One Lounge.

At the trial, Griggs claimed that in the evening of April 20, 1979, while drinking heavily, he became involved in a game of "liar's poker" with several men he did not know. During the game, one of the players, "Butch" Kirschwing, gave Griggs several counterfeit bills. After the game Griggs went out with Kirschwing and spent some of the bills that he had received unwittingly during the course of the earlier poker game. Kirschwing was a fugitive at the time of Griggs' trial, and therefore, he was not available to testify. At the conclusion of the trial, the court directed a verdict for Griggs on Count III and the jury acquitted him on the remaining counts.

Sometime after the first trial, Butch Kirschwing turned himself in to the authorities. He entered into a plea bargain with the government, agreeing to testify against Griggs in return for a reduced sentence. Armed with new evidence in the form of Kirschwing's testimony, the government indicted Griggs on five new charges. Count I alleged conspiracy to pass counterfeit bills and specified thirteen overt acts in support of the charge. Counts II and III alleged that Griggs had sold counterfeit bills to Kirschwing. Count IV charged possession of fake money and Count V accused Griggs with attempting to pass a counterfeit bill at the Page One Lounge.

Griggs moved to dismiss the indictment on collateral estoppel grounds. The district court denied the motion and Griggs filed an interlocutory appeal to the Fifth Circuit Court of Appeals. The court of appeals concluded that the verdicts at Griggs' first trial established (1) that Griggs was unaware that the bills he passed at the Twelve North Restaurant were counterfeit, (2) either that Griggs was unaware of the counterfeit nature of the bill that he passed at the Page One Lounge or the evidence was not sufficient to establish that he was the one that passed it, and (3) the evidence was insufficient to prove that Griggs passed the second bill at Page One. See United States v. Griggs, 651 F.2d 396 (5th Cir. Unit B 1981).

The Griggs court held that, in view of these facts established in Griggs' previous trial, the government was collaterally estopped from prosecuting Griggs on Count V of the new indictment. The court concluded that although the verdict at the previous trial established only Griggs' lack of knowledge of the counterfeit nature of the bills passed at the Twelve North Restaurant, it was quite unlikely that he gained such knowledge before going to the Page One Lounge. Therefore, as a matter of law, he lacked the requisite knowledge to inculpate him of attempting to pass a counterfeit bill at that establishment.

In compliance with the court of appeals' disposition of the interlocutory appeal, the district court struck Count V and commenced the trial. Griggs elected to exercise his fifth amendment privilege against self-incrimination and declined to testify. The government introduced several incriminating tape recordings of Kirschwing and Griggs discussing their dealings and Kirschwing testified against Griggs as the government's star witness.

I. Prosecutorial Comment on the Exercise of the Fifth Amendment Right.

Griggs' counsel, in both his opening and closing statements, repeatedly tried to discredit Kirschwing. In response to these continual attacks on Kirschwing's veracity and reliability, the prosecutor made the following remarks in his closing argument:

1. There is absolutely no evidence, there is no testimony, not a single person has said Mr. Griggs was afraid of an unjustified conviction. Mr. Thomas [Griggs' attorney] has just asked you to assume that even though the defendant has not testified about it and no one has testified about it.

Record at 426.

2. Now first of all, as to whether Butch is lying. First there is not any testimony at all to the contrary of what Mr. Kirschwing told you.

Record at 429.

3. When you consider all of the evidence, Mr. Kirschwing's testimony and the other testimony, supported on the tape, and the fact that there is no direct testimony against it, we submit you can believe Mr. Kirschwing.

Record at 435.

4. Now we have got Mr. Thomas saying that all that on the tape was just play acting because he is trying to catch Mr Kirschwing. I submit to you that is the most far-fetched story of all. There is not a single piece of testimony that gives basis to that argument. It's based only on the stipulations I have read to you, which I have indicated is only what Mr. Thomas told me, not that it is truthful.

Record at 437.

5. The hard concrete, bedrock facts of this case are Kirschwing's testimony, which again there has been no direct testimony in contrary [sic] to, and the tape.... [T]he defendant knew that Kirschwing was the only witness with first-hand knowledge that could implicate Mr. Griggs.

Record at 444-45.

6. Only [Griggs] knows where he got the bills to start with, but for him selling them to Mr. Kirschwing none of this would have happened and we wouldn't be here.

Record at 447.

The fifth amendment prohibition against compulsory self-incrimination insures the right of all criminal defendants to decline to testify at trial. U.S. CONST. amend. V. "Concomitant with that right is the prohibition of prosecutorial comment on its exercise." McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 255, 74 L.Ed.2d 199 (1982). See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Although this general rule is clear that the prosecution must refrain from specific comment on a defendant's exercise of his fifth amendment right, the prohibition is not absolute. "[N]ot every statement that under some conceivable interpretation might draw attention to a defendant's decision not to testify is a comment on silence." United States v. Berkowitz, 662 F.2d 1127, 1136 (5th Cir. Unit B 1981). ¹ Therefore, it becomes our task to determine when such comment transcends the bounds of constitutional acceptability.

At times, the prosecutorial infirmity is glaringly evident. See, e.g., United States v. Bates, 512 F.2d 56, 58 (5th Cir.1975) ² ("you didn't hear from the culprit"). For the most part, however, the line of demarcation between permissible and constitutionally unacceptable commentary is quite difficult to draw.

In the earlier cases on this subject, the Fifth Circuit Court of Appeals sanctioned comment on the uncontradicted state of the evidence or the defendant's failure "to produce testimony on any phase of the defense on which he relies." Garcia v. United States, 315 F.2d 133, 137 (5th Cir.), cert. denied, 375 U.S. 855, 84 S.Ct. 117, 11 L.Ed.2d 82 (1963). This expansive language was qualified, however, as "especially true when the evidence against a defendant could be contradicted by someone other than himself." Id. See also United States v. Jennings, 527 F.2d 862 (5th Cir.1976).

The broad language of Garcia and its accompanying limitation eventually evolved into the notion that it is not error "to comment on the failure of the defense, as opposed to the defendant, to counter or explain the evidence." United States v. Bright, 630 F.2d 804, 825 (5th Cir.1980) (emphasis original). See also United States v. Johnson, 713 F.2d 633 (11th Cir.1983) (where defendants chose not to testify at trial but records available to the defense might have existed which would have contradicted the government's theory of the case, prosecutorial comment on the failure of the defense to produce any evidence or testimony in rebuttal to the espoused theory held permissible), cert. denied, --- U.S. ----, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984); Duncan v. Stynchcombe, 704 F.2d 1213, 1215 (11th Cir.1983) (prosecutor's comment that "there has been no evidence in this case from the defense at all that Duncan was not in that house" held a proper reference to the failure of the defense to offer any alibi evidence as to defendant's whereabouts at the time of the crime). Consequently, if there is rebuttal evidence available in addition to the defendant's testimony, this circuit generally will not find error in a reference to the uncontradicted nature of the prosecution's evidence.

The applicability of the Bright-Stynchcombe-Johnson doctrine breaks down, however, in cases where the rebuttal testimony or evidence could come only from the...