U.S. v. McDonald

• Decision Date: 03 July 1980
• Docket Number: No. 79-5257,79-5257
• Citation: 620 F.2d 559
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Ray McDONALD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 559

620 F.2d 559

UNITED STATES of America, Plaintiff-Appellee, v. James Ray McDONALD, Defendant-Appellant.

No. 79-5257.

United States Court of Appeals, Fifth Circuit.

July 3, 1980.

Arthur Parker, Birmingham, Ala., for defendant-appellant.

Herbert H. Henry, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before COLEMAN, Chief Judge, FRANK M. JOHNSON, Jr. and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

James Ray McDonald was convicted by a jury on one count of dealing in counterfeit currency in violation of 18 U.S.C. § 473 and on one count of conspiring to deal in counterfeit currency in violation of 18 U.S.C. § 371. On appeal he claims the prosecutor transgressed his Sixth Amendment right to counsel by eliciting testimony that his lawyer was present when Secret Service agents executed a search warrant at his home and by commenting on that fact during closing arguments. We find merit in this challenge and reverse his conviction.

Count One of the indictment charged that 13 named defendants and one other person had conspired to violate three of the federal counterfeiting statutes, 18 U.S.C. §§ 471-473. Count Two charged the substantive offense. Among the defendants were McDonald, Reuben Cook "Dude" Head and Richard Dewayne Burns.

McDonald was tried in April, 1979. ¹ The Secret Service agents who had investigated the case were not able to present any hard evidence against McDonald. However, there was testimony from five co-indictees, including Head and Burns, linking McDonald to the crime.

The incidents giving rise to the challenged testimony and comments occurred on December 15, 1975. Head and Burns, called as government witnesses, testified that on that day they went to McDonald's house and, assisted by McDonald, burned thousands of dollars' worth of defective bills. These bills, made by the indictees, were considered not "passable." When Head and Burns left McDonald's house, they took with them a plastic garbage bag containing the ashes and a few small unburned pieces of some of the bills. Burns threw this bag into a pile of garbage in an alley near McDonald's house as he and Head departed. Secret Service agents who had been maintaining a surveillance of the house stopped Head and Burns, arrested them and executed a search warrant for the automobile they were in. This occurred at approximately 1:30 p. m.

The agents then returned their attention to McDonald's house. Six or seven agents went into the alley to retrieve the plastic bag. One of the agents went to his office to prepare an affidavit in support of an application for a warrant to search McDonald's house. A few hours later, a federal magistrate issued the warrant, and, at around 5:30 p. m., the warrant was executed. Seven Secret Service agents searched McDonald's house for two hours but found no counterfeit money, no plates or equipment used in the manufacture of counterfeit money, no ashes and no indication that anything had been burned recently. The agents seized only some unused plastic bags similar to the bag they had found in the garbage pile in the nearby alley.

At trial McDonald sought to establish that although he had been aware that his co-indictees were engaged in a counterfeiting scheme, he was not a participant. Defense counsel explained the December 15 incident by claiming that Head and Burns had become aware that Secret Service agents were watching them and that they had gone to McDonald's house to burn the evidence against them. Counsel contended that McDonald merely had acquiesced in their efforts to cover their tracks. During closing argument defense counsel stressed that the Secret Service agents had found no evidence against McDonald during their thorough search of his house.

The prosecutor, concerned over the inferences the jury might draw from the fruitlessness of the search, offered an offsetting inference. With his questions on direct examination and his comments in rebuttal argument, the prosecutor suggested that in the four hours between the departure of Head and Burns and the execution of the search warrant, McDonald had destroyed all incriminating evidence in his house. The manner in which this was done is the cynosure of our inquiry today.

During the direct examination of Secret Service Agent Kenneth M. McCreless, who had taken part in the surveillance and in the search, the prosecutor developed the facts in support of the destruction-of-evidence theory. After McCreless described the surveillance, the arrests of Head and Burns, the retrieval of the garbage bag and the securing of the search warrant, the following exchange occurred:

Q. When you arrived to execute the warrant, who was present?

A. When I arrived, the special agent in charge of the Birmingham Secret Service, Thomas L. Jones, was there, Agent Novak, Mr. Charles Tarter, and

Q. Who was he?

A. He was an attorney representing Mr. McDonald. Mr. McDonald was there, and a lady who lived there, Brenda Evans.

The prosecutor knew what the answer would be when he interrupted McCreless to ask him to identify Tarter; he wanted the jury to know Tarter was McDonald's attorney. The predicate thus was laid for the following comments by the prosecutor in the rebuttal phase of closing argument:

Now, ladies and gentlemen, you know here is you have seen the Secret Service agents, and here is Jimmy McDonald in his house. And here is all this commotion going on around his house, and then three hours later they arrive to serve the search warrant at 5:30 that afternoon. And who was there? The defendant's attorney. And that is when they went in the house to search him, three hours. I suggest to you ladies and gentlemen, I'm not going to tell you what my opinion is, but I suggest to you if Jimmy McDonald knew all this was going on, and had his lawyer out there three hours later, I believe that would be sufficient time to dispose of any ashes or any evidence, if you were so inclined (emphasis ours).

McDonald claims that the prosecutor used the fact that his lawyer was present during the search as a basis for an inference of guilt, impermissibly penalizing him for exercising his constitutional right to counsel. The government responds that its tactics were a fair reaction to the defense's heavy reliance on the fact that the search had produced no evidence. The government further contends that even if those tactics were in error, given the other evidence against McDonald, the error was harmless beyond a reasonable doubt.

The threshold inquiry concerns the effect of defense counsel's failure to object to the allegedly improper testimony and the prosecutor's closing argument. Because the alleged errors affect McDonald's substantial constitutional rights, we may notice them even though they were not brought to the trial court's attention. Fed.R.Crim.P. 52(b).

The Supreme Court has held that prosecutorial comments on an accused's failure to testify ² or on his silence at the time of his arrest ³ infringe upon his Fifth Amendment right against compulsory self-incrimination. The Supreme Court has not yet addressed the effect of prosecutorial comments on an accused's exercise of his right to counsel. Several circuit courts have.

In United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir. 1973), the court reversed a murder conviction because the prosecutor had claimed in his closing argument that the defendant's actions immediately after the commission of the crime, including his hiring of an attorney, were inconsistent with his claim of innocence. The Macon court further held that the evidence in the case was such that the error could not be considered harmless. In United States v. Liddy, 509 F.2d 428 (D.C.Cir.1974), and United States v. Williams, 556 F.2d 65 (D.C.Cir.1977), the court found error in references to the defendants' exercise of their right to counsel but held that the errors were harmless. In Zemina v. Solem, 573 F.2d 1027 (8th Cir. 1978), the court, without discussing the issue of harmless error, reversed a manslaughter conviction because the prosecutor had suggested that the defendant's post-arrest telephone call to his lawyer indicated his guilt.

We previously have had occasion to consider this question. In Stone v. Estelle, 556 F.2d 1242 (5th Cir. 1977), we affirmed the district court's refusal to grant a writ of habeas corpus to a defendant who claimed that the prosecutor at his murder trial had commented impermissibly on his exercise of his right to counsel. Stone admitted killing the victim but claimed self-defense. He testified that at the time of his arrest he was on his way to turn himself in, and he claimed that he had cooperated fully with the police. In order to refute the latter claim, the prosecutor asked the defendant about his refusal to participate in a lineup. Although the defendant denied that he had so refused, he did say he had asked for a lawyer. During closing arguments, the prosecutor said:

Oh, he tried to cooperate with the police after he killed somebody, he sure did. . . . Don't you know if he was worried he would have come down here that night and told the police what happened. Then he wouldn't tell them anything, he wouldn't tell them anything, he had to have a lawyer. These are things you can take into consideration as far as the credibility of these witnesses.

556 F.2d at 1244 n. 5. On appeal Stone relied on Doyle, supra. In Doyle the prosecutor had commented on the defendant's failure to tell his exculpatory story to the police at the time of his arrest. The Supreme Court held that this infringed the defendant's Fifth Amendment right to remain silent. We found the prosecutor's comment in Stone to be "unwarranted," but because the remarks had not "produced a trial which was fundamentally unfair so as to deny appellant due process," affirmed the denial of the application for writ of habeas corpus. We distinguished...