U.S. v. Stevens, 76-1423
| Citation | 538 F.2d 1203 |
| Decision Date | 20 September 1976 |
| Docket Number | No. 76-1423,76-1423 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard Benjamin STEVENS, Defendant-Appellant. Summary Calendar. * |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
John Volz, Federal Public Defender, Richard T. Simmons, Jr., Asst. Federal Public Defender, New Orleans, La., for defendant-appellant.
Gerald J. Gallinghouse, U. S. Atty., Mary W. Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.
Appellant Stevens was convicted on a three-count indictment of violations of the Gun Control Act of 1968 Count I, transporting a stolen firearm in interstate commerce, 18 U.S.C.A. § 922(i), Count II, being a convicted felon and transporting a firearm in interstate commerce, 18 U.S.C.A. § 922(g), and Count III, being a convicted felon in possession of a firearm in interstate commerce, 18 U.S.C.A. App. § 1202(a). 1 After a jury trial Stevens was found guilty and sentenced to three years on Count I, three years on Count II and one year on Count III.
On appeal Stevens claims (i) the District Court erred in denying his motion for mistrial based on the admission, during the prosecution's case in chief, of testimony concerning Stevens' response to questions after his arrest, (ii) insufficiency of the evidence on the elements of knowledge and intent, (iii) that he was resentenced to an increased term of confinement, 2 and (iv) that the District Court imposed multiple punishments for a violation that was a single course of conduct. 3 We reject the insufficiency argument, but we find that reversal is required on the first issue (i), and we do not reach the points concerning sentencing.
It was established at the trial that Stevens and three acquaintances burglarized a home on or about the night of December 18, 1974, and took several guns and coins. The next day Stevens and one of the other participants, Rodney Lee, traveled to Dallas, Texas in Lee's car after first spending a night in Bossier City, Louisiana. The alleged purpose of the trip was to look for work. Stevens and Lee stayed in a trailer in Dallas with friends of Stevens', Diane and Duane Gouldsby.
At some point after Stevens and Lee arrived in Dallas four rifles that had been taken in the burglary and had been in the trunk of Lee's car since the two men left Louisiana, were brought into the Gouldsbys' trailer. One of these guns was given to Diane Gouldsby.
Lee and Stevens were indicted on charges of firearms violation, but Lee entered a plea of guilty prior to trial. At Stevens' trial Lee and two other participants testified how the burglary took place and the roles each played. Additionally, Lee testified about the interstate travel and transportation of the stolen guns. Stevens did not testify during his trial. 4
In his first issue on appeal Stevens claims that the District Court should have granted a mistrial because of erroneously admitting testimony by special agent Polombo during the case in chief about Stevens' responses to questions after arrest and after he had been given his Miranda rights. The relevant testimony was as follows:
Q (The prosecutor) Did Mr. Stevens express to you at that time his participation or his knowledge and participation with respect to the firearms or any of the other property taken in the burglary?
A (Agent Polombo) No, sir, he wouldn't give any information.
Q Did you specifically ask him about the firearms taken in the burglary?
A Yes, sir.
Q What was his response to your question?
A No comment.
MR. SIMNO: Tender the witness. Thank you.
Stevens contends that he should have been granted his requested mistrial on the basis of the principle announced first in United States v. Hale, 1975, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, and more recently in Doyle v. Ohio, 1976, --- U.S. ----, 96 S.Ct. 2240, 49 L.Ed.2d 91, 44 U.S.L.W. 4902 (1976). In Hale the Supreme Court used its supervisory powers over the federal courts to find prejudicial error when the trial court permitted cross-examination of Hale concerning his silence during post-arrest interrogation. 422 U.S. at 180, 95 S.Ct. at 2138, 45 L.Ed.2d at 107. This term, in Doyle, the Court held that impeachment use of a defendant's post-arrest silence violates the Due Process clause of the Fourteenth Amendment. --- U.S. at ----, 96 S.Ct. at 2241, 49 L.Ed.2d at 94, 98.
This Court recently found harmful error in the admission of testimony in the case in chief concerning a defendant's silence. United States v. Impson, 5 Cir., 1976, 531 F.2d 274, 275; see United States v. Fairchild, 5 Cir., 1975, 505 F.2d 1378, 1383. Therefore, since Stevens, to preserve the error, requested a mistrial after the testimony of Agent Polombo, we must reverse if the Agent's words were an indication that Stevens was silent during interrogation.
The Government argues that Stevens did not remain silent but verbally denied possession of the guns and that the Agent was testifying that Stevens said "no comment." Gov't Brf at 17. The testimony, however, is fatally ambiguous. The implication of the Agent's words, an implication probably not lost on the jury, was that Stevens refused to answer any questions concerning the guns. It is impossible to determine from the transcript whether Agent Polombo was quoting Stevens' words or testifying about Stevens' constitutionally protected silence as guaranteed by Miranda and the Fifth Amendment.
This is an unusual situation and a case which we are reluctant, but are compelled, to reverse. The strong dictates of the Supreme Court in Hale and Doyle, as well as precedent from this Court, United States v. Impson, supra; see United States v. Harp, 5 Cir., 1976, 536 F.2d 601 (1976); cf. Mercado v. Massey, 5 Cir., 1976, 536 F.2d 107 (1976), require that we find reversible error in the failure to grant a mistrial after these thoughtless, ill-advised questions of the prosecutor who was bound to know of the Agent's expected negative answer.
Stevens also raises questions concerning sufficiency of the evidence, which we reject, and the validity of the sentencing. 5 Because we vacate the...
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Chapman v. U.S.
...to find this use of a defendant's "insolubly ambiguous" silence a violation of constitutional dimension. See United States v. Stevens, 538 F.2d 1203, 1205-6 (5th Cir. 1976). Therefore we think that in either case, had Doyle's clarification and reaffirmation of this principle been available ......
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U.S. v. Beechum, 76-1444
...response, constituted plain error under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). 3 See United States v. Stevens, 538 F.2d 1203 (5th Cir. 1976). A. The We focus on the two Sears, Roebuck credit cards that the trial court admitted as evidence of prior similar offenses......
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