U.S. v. Johnson, 76-4272
| Decision Date | 12 September 1977 |
| Docket Number | No. 76-4272,76-4272 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joan Paulette JOHNSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Steven Wisotsky, Coconut Grove, Fla., for defendant-appellant.
Robert W. Rust, U. S. Atty., Nathaniel H. Speights, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before THORNBERRY, GODBOLD, and FAY, Circuit Judges.
In this challenge to her conviction for importation and possession of cocaine, Joan Johnson (defendant below) asserts that in the prosecution's case in chief, prosecution witnesses improperly commented on her post-arrest silence. We reverse and remand, finding certain testimony to have been admitted improperly.
Defendant had been in Panama for about six days at the end of January 1976, in the company of her young son and another woman, Ellen Levy. She re-entered the United States through the Miami airport, and passed through customs there. The inspecting officer detained defendant because, after unpacking her suitcase, he noticed that its sides were heavier and firmer than was usual for bags of that type. In a separated detention area, the officer punched an awl through the side of the suitcase and discovered white powder which field tested positive for cocaine. Defendant acted surprised upon learning that cocaine had been found in her suitcase. The suitcase then was disassembled, and 1910 grams of cocaine were found hidden within the metal frame of the suitcase.
Defendant was placed under arrest and given her Miranda warnings. The government charged her with and prosecuted her for importation of a controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 952(a), 960(a)(1). Each of these crimes requires knowledge and intent. Johnson's sole defense at trial was that she did not know that cocaine was in the suitcase. Nevertheless, the jury convicted her.
On appeal, defendant challenges four instances of testimony. That testimony was given by a customs inspector and a DEA officer. They testified that after Johnson had been arrested and read her Miranda rights, she refused to sign a waiver of her rights or to "cooperate" and, though she stated that she had a logical explanation for the presence of the cocaine, she declined to elaborate on her explanation until she obtained legal advice. Then she affirmatively denied knowing that the cocaine was in her suitcase. The text of the challenged testimony follows:
First Instance Inspector Murphy the witness (Tr 20, 21):
Prosecutor: Q Did you have any conversation with the Defendant as to your findings?
Agent Murphy:
A Yes, sir. I asked her, could she tell me where she got this? And she said no, and she acted surprised.
Q At any time did you utter words of arrest to the defendant?
A Yes, I did. I read her her rights and stated to her that she was under arrest for smuggling and possession of a controlled substance.
Q After you read her her rights, were there any further conversations between you and the Defendant?
A If there was, sir, it was general conversation; because she did not sign the waiver of her rights and I do not feel that I should go ahead and question this person further.
Q Did you ask her to sign a waiver of her rights?
A Yes, sir.
Q What was said?
A She said, no, she wanted to cooperate, but she did not quite understand it and she felt that she should be represented. She should know more. She felt that she should contact a lawyer, I believe she stated.
Second Instance Inspector Murphy the witness (Tr 24, 25):
Prosecutor: Q During that time was there any conversation?
Agent Murphy:
A I had to, of course, fill out a form. And during the waiting period I asked her her name, and birthdate and place of birth. This type of questioning. That was most of my conversation with her, other than I am sure we did have some general conversation to kill the time, you might say.
Q But the Defendant offered no explanation or statement as to your findings; is that your testimony?
Defense Counsel:
Objection, your Honor. That is an improper question.
The Court: Sustained.
Prosecution: Q At what time did you last see the Defendant on the date in question?
A What time, sir?
Q Yes. You stated that you were present when the Drug Enforcement Administration officers arrived. Did there come a time when you left the presence of the Defendant?
A Yes. She left my presence first and then she came back and then she left again with the DEA officers. And I assume it was forty-five minutes that had elapsed.
Q During this period there was no conversation between you and the defendant other than the time of day?
A Well there was general conversation when we were discussing the signing of the waiver when she had intimated that there was something that she would like to tell us. But she did not think like she should, that she had to think of herself.
Q That she had to think of herself?
A Yes, sir. And she felt that she should consult someone else.
Third Instance Special Agent Baumwald the witness (Tr 39, 40):
Prosecutor: Q After you spoke to Miss Levy did you have another conversation with the Defendant?
Agent Baumwald:
A Yes, sir.
Q What did she say at that time?
A She told me that she had a logical explanation as to how the cocaine entered her suitcase, but she could not tell me at that time what that explanation was. She also told me that she had known Miss Levy prior to leaving Miami rather than what she told me originally about meeting her on the trip to Panama. That they had traveled together to Panama.
Q Did you have any further conversation with the Defendant?
A She insisted that she would want to speak to her lawyer before she talked to us any further. So we did not question her any further.
Q Did she at any time offer to tell you this logical explanation?
A No, sir. She said she had to speak with her attorney before she could do that.
Fourth Instance Special Agent Baumwald the witness (Tr 42):
Prosecutor: Q Did you and the Defendant have any other conversation on February 4, 1976?
Agent Baumwald:
A Nothing specific; just we had asked her for background information and we filled out our paperwork.
Q Did you at any time state to the Defendant that it would be to her advantage to cooperate with the Government?
A I asked her if there was anybody else involved with this transaction; and that it would be to her advantage to tell us so that we would know the story and possibly go further with the investigation.
Q What was her response?
A She refused.
Agent Baumwald: She just told me that she was not aware that there was cocaine inside the bag (Tr 45). 1 During this fourth statement, Johnson's counsel objected and moved for a mistrial. 2 The Court denied the motion, but instructed the jury to disregard the last mentioned testimony.
The parties ask us to determine whether the admission of this testimony infringed impermissibly on defendant's right to remain silent under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as applied by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). We hold that the testimony did infringe on those rights and that the admission of this evidence constituted prejudicial error.
Doyle elevated to constitutional status the rule enunciated in Hale, that the prosecution may not impeach a defendant's testimony with evidence of the defendant's silence after having received Miranda warnings. This rule includes a ban on the use of defendant's expressions of intent to remain silent. See United States v. Stevens, 538 F.2d 1203, 1205 (5 Cir. 1976). Where a defendant's post-Miranda utterance is an ambiguous expression of his desire to remain silent, that utterance should receive the same treatment as naked silence. Stevens, supra. Cf. United States v. Joyner, 539 F.2d 1162, 1165-66 (8 Cir. 1976).
These rules seem fairly well defined. Our case, however, does not fit directly into any of the situations on which courts have previously rendered decision. Here, the defendant made some expressions of an intent to remain silent until after consulting an attorney. She also stated, in conjunction with that desire to remain silent, that she wanted to cooperate, and that she had a logical explanation for the presence of the cocaine found in her suitcase.
We are of the opinion that the expressed desire to consult an attorney before explaining anything to customs officials is, purely and simply, an expressed desire to remain silent. To treat this utterance otherwise would, under the logic of Doyle and Hale, improperly subject the defendant to penalty for exercising the right not to speak and the right to have an attorney present.
In each of the first three instances of challenged testimony, however, the expression of a desire to remain silent was coupled with other words indicating something else a desire to cooperate or to tell the customs officials something, and an assertion that she had an explanation. We feel that in each instance the desire to remain silent was so tightly intertwined with the other utterance that the two portions must be considered as a whole a single testimonial entity. Any other rule would be highly artificial and would present grave practical difficulties for prosecutors in dealing with similar statements. 3
So viewed, the ultimate question arising here is whether the expressions of a desire to cooperate or an explanation are sufficient to transform the challenged testimony into statements made in waiver of Miranda rights. Our analysis perforce resorts to the Supreme Court's...
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