U.S. v. Shue

• Decision Date: 08 July 1985
• Docket Number: No. 83-2053,83-2053
• Citation: 766 F.2d 1122
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles SHUE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1122

766 F.2d 1122

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

No. 83-2053.

United States Court of Appeals Seventh Circuit.

Argued June 8, 1984.

Decided July 8, 1985. ^*

James D. O'Connell, Asst. U.S. Atty., Chicago, Ill., Dan K. Webb, U.S. Atty., for plaintiff-appellee.

Richard C. Leng, Chicago, Ill., for defendant-appellant.

Before WOOD, ESCHBACH and EDWARDS, ^** Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge. ^***

Appellant Charles Shue challenges his convictions for bank robbery and conspiracy on the grounds, among others, that the government violated his due process rights by unfairly commenting on his exercise of the right to remain silent after arrest. We hold that the government's comments exceeded the boundaries of fairness and violated due process under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We further hold that, under the circumstances of this case, the constitutional error was plain, and was not harmless. We reject appellant's other alleged errors, however, and affirm the conviction in the count not involving the Doyle violation.

I.

Appellant Shue was charged with robbing or attempting to rob five banks with different accomplices. One alleged accomplice and two other associates of appellant testified against him. Appellant was convicted on a conspiracy count (Count I), one attempted robbery count (Count III), and two robbery counts (Counts II & IV). A verdict of acquittal was directed on one robbery count (Count VI) ¹ and the jury acquitted appellant on another robbery count (Count V). Appellant was sentenced to thirty years imprisonment followed by five years probation.

Appellant, fifty-seven years old at the time of trial, had retired as a dental technician in 1979 and moved from Chicago to Las Vegas, but returned frequently to Chicago. His co-defendant, Carol Gesior, was his constant companion. ²

Appellant met Michael Raduazzo in the late 1970's. The two lived in the same apartment complex in Las Vegas, and both frequented the same club in Chicago. Raduazzo, a government witness at appellant's trial, testified that appellant drove him to Chicago in early 1980 and the two robbed the Colonial Bank and Trust there (Count II) on March 21, 1980, armed with a sawed-off shotgun and a handgun. A photographic expert testified that surveillance photographs showed the robber was 5'9", with a one inch margin of error. Appellant is 5'9". A man who saw the unmasked robbers before they commandeered his car did not identify anyone in a lineup.

Raduazzo testified that after the robbery, he, appellant, and Gesior went to Las Vegas. Raduazzo testified that after returning to Chicago, he and appellant attempted to rob the Argo State Bank in Chicago (Count III) on May 5, 1980, armed with a handgun. Raduazzo was shot and apprehended in the bank while his accomplice escaped. An expert testified that surveillance photographs put the escaped robber at 5'10", with a one inch margin of error.

Raduazzo pled guilty and was sentenced to six months in prison. After his release, he was subpoenaed by a grand jury and asked who his accomplice was. At appellant's trial, Raduazzo testified that he first lied to the grand jury, then, on appellant's advice, refused to testify, was cited for contempt, and, after six months in jail, implicated appellant in July 1981.

About this time appellant began using an assumed name, Joseph Papp. At his trial, appellant, taking the stand in his own defense, explained that he had received a message to call Raduazzo in July 1981 and did so. Appellant testified that Raduazzo said he had believed appellant was killed in a car accident, and had told the FBI that appellant was his accomplice in the Argo State Bank robbery. Appellant said Raduazzo told him that his real accomplice's description was very different from appellant's, so even if arrested appellant could not be charged. Finally, in response to defense counsel's question why he did not go to the FBI at that time to clear himself, appellant testified that Raduazzo warned him he would be arrested and held for six months to a year during an investigation. Appellant said Raduazzo suggested that appellant use a different name.

On July 28, 1981, the Norwood Federal Savings and Loan Association in Chicago (Count IV) was robbed by a man holding a bag in front of his face. A photographic expert said he could not positively identify appellant from the surveillance photograph, but said the photograph did bear some similarity to the lineup photograph of appellant. Two tellers observed the lineup: one picked out appellant and another man, and the other made no identification at the lineup but later said the lineup photograph of appellant resembled the robber. A toy gun was found at the scene; three toy guns were found in a search of appellant's living quarters when he was arrested over a year later.

Appellant, now as Joseph Papp, went to Arizona and returned to Chicago in the fall of 1981. Appellant testified that he asked a friend in Las Vegas, Art Ippolito (who frequented the same club in Chicago), to help him find a place to stay in Chicago. Ippolito referred him to Charles Budrius, another government witness at appellant's trial. Budrius introduced appellant to George Wenta. Wenta rented his basement, which his wife and friends used for storage, to appellant for $100 per month. Appellant was in and out of Chicago. Budrius testified that when appellant was in Chicago in early 1982, he tried to persuade Budrius to participate in a bank robbery, but Budrius declined. Budrius also testified that appellant asked him to steal a car. Budrius refused, but introduced appellant to Shelby Dotson as one who would steal a car for him.

In February 1982, appellant was in Las Vegas and met James Turner, the third government witness against appellant, through Art Ippolito. Appellant testified that just after meeting Turner, he drove Turner to Los Angeles twice and Turner allowed appellant to use his credit card on a later trip to Chicago. Turner, however, testified that he and appellant attempted two bank robberies in Los Angeles and one in Las Vegas, where Turner was arrested. Turner testified that, while in jail, he recruited one Hank Sheese at the behest of Art Ippolito. Turner admitted lying to the FBI and to a grand jury.

Budrius testified that back in Chicago in March 1982, appellant had Dotson steal a car for him (Budrius went along), and appellant purchased a gun from his landlord, Wenta. The government charged appellant with robbing the Liberty Bank in suburban North Riverside (Count V) on March 19, 1982, with Dotson and Gesior. As noted above, Dotson refused to testify despite a grant of immunity. Surveillance photographs indicated the robber was 5'10", with a one inch margin of error. Part of the proceeds of that robbery included $550 in five-dollar bills; appellant had paid Dotson and Budrius for the car theft and Wenta for the gun and rent with $750 in five-dollar bills. The jury acquitted appellant on this count.

Appellant and Dotson then went to Las Vegas, as did Budrius. Budrius testified that Dotson told him appellant, Dotson, and Sheese tried to rob a bank in Los Angeles, and appellant left the others stranded there. Budrius admitted robbing a bank with Dotson and Sheese, which he testified appellant previously had discussed robbing, and admitted planning to rob another bank with Dotson and Sheese.

The government charged appellant with robbing the Peerless Federal Savings and Loan in Mount Prospect (Count VI) on May 21, 1982, with Dotson and Gesior. A directed verdict of acquittal on this count was entered after Dotson refused to testify.

In his testimony, appellant admitted knowing Raduazzo, Budrius, Turner, Sheese, and Dotson, and buying a gun from Wenta. He said that since his retirement he travelled often because he had much idle time. He claimed to live on $40,000 that he had saved, which Gesior had deposited in a Las Vegas bank account under her own name and from which she withdrew money as she and appellant needed it. Appellant did not know the name of the bank.

II.

Appellant argues that the government deprived him of due process of law by commenting in cross-examination and closing argument on appellant's failure to tell his version of events to the FBI after his arrest.

Upon being subjected to interrogation in police custody, a suspect must be informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which of course include the right to remain silent. Miranda teaches that the prosecution may not use at trial "the fact that [the defendant] stood mute or claimed his privilege in the face of accusation." Id. at 468 n. 37, 86 S.Ct. at 1624 n. 37. The Supreme Court has held further that the prosecution may not use a defendant's post-arrest silence ³ to impeach an exculpatory story told at trial. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); see also United States ex rel. Allen v. Franzen, 659 F.2d 745, 747 (7th Cir.1981), cert. denied, 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 444 (1982). The Court noted that implicit in the Miranda warnings is an assurance that silence carries no penalty, and, due to the warnings, every post-arrest silence is insolubly ambiguous. Doyle, 426 U.S. at 617, 96 S.Ct. at 2244; see also United States v. Hale, 422 U.S. 171, 177, 95 S.Ct. 2133, 2136-37, 45 L.Ed.2d 99 (1975).

Here, the government's remarks appear to directly conflict with the rule of Doyle by implying that appellant's exculpatory story was false because he did not tell it to the FBI after his arrest. On cross-examination, the government asked appellant:

Q: When you were arrested, the Chicago Police Department took you and Ms. Gesior down to the police station, is that right?

A: Yes, sir.

Q: You were put in a room by yourself, weren't you, Mr. Shue?

A: Yes, sir.

Q: And Agent Keefe of the...