U.S. v. Newman

• Decision Date: 11 September 1991
• Docket Number: No. 90-10387,90-10387
• Citation: 943 F.2d 1155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary A. NEWMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1155

943 F.2d 1155

UNITED STATES of America, Plaintiff-Appellee, v. Gary A. NEWMAN, Defendant-Appellant.

No. 90-10387.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 17, 1991.

Decided Sept. 11, 1991.

Negatu Molla, Snell & Wilmer, Tucson, Ariz., for defendant-appellant.

Robert L. Miskell, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before CHOY and SNEED, Circuit Judges, and KELLEHER, ^* District Judge.

SNEED, Circuit Judge:

Appellant, Gary A. Newman, appeals from his criminal conviction for setting fire to lands within the Coronado National Forest in southern Arizona. He argues that he was prejudiced by testimony regarding his post-arrest silence. We agree and reverse Newman's conviction.

I. FACTS AND PROCEEDINGS BELOW

On May 29, 1989, two Forest Service special agents (Boerman and McCormick) began surveillance of fellow employee Gary Newman. They had previously installed an electronic tracking device on defendant's Forest Service pickup truck. At approximately 9:40 a.m., the agents spotted defendant's truck travelling north on Highway 83. They followed defendant's vehicle for approximately two miles on the highway. Agent Boerman then continued the surveillance on foot after the defendant turned off the highway and parked his truck on a "two-track" road. Except for a ten-minute interval during which Boerman returned to his vehicle for radio batteries, the defendant's truck was continuously in Boerman's sight for an hour. During this time, Boerman testified that the truck remained empty.

At approximately 10:50 a.m., Boerman saw the defendant return to the truck from the north and drive off. Four minutes Upon arriving at the cemetery, Agent McCormick stopped to question Mrs. May Gates who had arrived at the cemetery at approximately 9:45 a.m. that morning to visit her husband's grave. During the relevant time period she had a clear view of the pasture where the fire started. She heard a man's voice utter two or three sentences, listened for a reply, but she heard nothing more. During this time, however, Mrs. Gates saw no one at either the cemetery or at or near the fire before McCormick's arrival.

                later, smoke was spotted.   Boerman then proceeded to the site of the fire which was located seventy-five yards from the north fence of Black Oak Cemetery, approximately eight minutes by foot from where the defendant's truck had been parked.   Agent McCormick also proceeded to the site of the fire.   His testimony was that he heard defendant report the fire over the radio at approximately 11:00 a.m.   Other witnesses at the trial appearing on behalf of the defense contradicted McCormick's testimony
                

Defendant arrived at the scene of the fire at approximately 11:10 a.m. When asked by agent McCormick why he had started the fire, defendant denied his involvement. Defendant also declined to give any further statement to the agents; nor did he give a statement to his supervisor. The following day, however, defendant gave a detailed explanation of his movements of the previous morning. In numerous ways, this explanation was inconsistent with the agents' observations of his movements.

Agent Douglas of the Forest Service investigated the area and determined that the cause of the fire was incendiary in nature. On the day of the fire, defendant had two match books with him in his truck from which some matches were missing. The agents also located a portable radio in defendant's truck.

On October 18, 1989, a grand jury indicted Newman under 18 U.S.C. § 1855. After a five day trial, a jury found Newman guilty on March 26, 1990. He was given an eight month sentence, four months of which were to be served in jail and the remaining four months under "house arrest." He was also placed on supervised release for three years and ordered to pay restitution of $55,173.

II. DISCUSSION

A. Defendant's Post-Arrest Silence

As stated above, Newman denied starting the fire when questioned by Agent McCormick. Thereafter, McCormick read Newman his Miranda rights. Newman told Agent McCormick that he did not want to talk at that point. He indicated that he might give a statement once his supervisor arrived. However, when his supervisor did arrive, Newman again declined to speak to the agents.

At trial, during the prosecution's direct examination of Agent McCormick, the witness described the sequence of events following defendant's arrest at the fire scene:

Q: Did you advise him of his rights?

A: I did at that point in time.

Q: And what was decided at that point?

A: Mr. Newman would remain silent. He wished not to make a statement.

Defense counsel objected and requested a curative instruction from the judge. The judge said "Let's take it to the end of this inquiry and then, if necessary, I'll give an instruction." Defense counsel accepted this decision. The prosecution continued:

Q: He said that he wanted--he didn't want to say anything. Did he say that he would be willing to later, though?

A: At that point in time he said he might be willing later to give a statement when his supervisor, Terry Dyess, arrived.

Q: And was his supervisor radioed to come to the location?

A: Yes, just immediately after this point in time.

Q: Okay.

At that point, the court gave a curative instruction telling the jury not to consider Newman's silence "for any purpose whatsoever." ¹

Questioning continued and the prosecutor asked the witness whether Newman made a statement once his supervisor arrived. Defense counsel again objected and the court overruled the objection. In response to the prosecution's question, McCormick said: "No statement regarding the events was made. The statement was made by Mr. Newman that he was not to talk to me." Shortly thereafter, the trial broke for lunch.

After the lunch break, outside of the presence of the jury, defendant moved for a mistrial. The trial judge denied the motion. The court did give a second limiting instruction to the jury when the trial resumed. ²

B. Analysis

The Supreme Court has clearly stated that "the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment." Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). The prosecutor in this case, on more than one occasion, unnecessarily elicited testimony from Agent McCormick regarding Newman's decision to remain silent after his arrest. Newman was clearly entitled to remain silent if he so desired. Nor should this silence be used to suggest guilt. In United States v. Wycoff, 545 F.2d 679 (9th Cir.1976), this court explained the effect of informing the jury that the defendant remained silent. "The natural tendency of the use of the testimony in this manner is to prejudice the defendant by attempting to create an inference of guilt in the jury's mind." Id. at 681; see also United States v. Valencia, 773 F.2d 1037, 1040 (9th Cir.1985) (reaffirming that it is constitutional error to admit evidence that a defendant chose to exercise the right to remain silent after arrest). Our review of Agent McCormick's testimony and the prosecutor's questions establishes that a Doyle violation occurred in this case.

Our conclusion is not weakened by the Supreme Court's recent decision in Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987). There the prosecutor asked the defendant on cross-examination why he had never told his exculpatory story to the police. Defense counsel objected. The trial judge sustained the objection and the defendant never answered the question. The jury was instructed to disregard the...