U.S. v. Whitson

• Decision Date: 22 June 1978
• Docket Number: No. 77-2193,77-2193
• Parties: UNITED STATES of America, Appellee, v. Garle A. WHITSON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 948

587 F.2d 948

UNITED STATES of America, Appellee, v. Garle A. WHITSON, Appellant.

No. 77-2193.

United States Court of Appeals, Ninth Circuit.

June 22, 1978.

Rehearing and Rehearing En Banc Denied Dec. 15, 1978.

Fred L. Baker (argued), San Francisco, Cal., for appellant.

Robert E. Carey, Jr. (argued), San Francisco, Cal., for appellee.

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

Before KILKENNY and GOODWIN, Circuit Judges, and MURRAY ^*, District Judge.

GOODWIN, Circuit Judge:

Whitson was convicted of violating 26 U.S.C. § 5861(d), possession of an unregistered firearm (a destructive device), and 18 U.S.C. § 844(i), destruction of a vehicle used in interstate commerce. He appeals.

Whitson was due to appear in court in Los Angeles on Monday, September 16, 1974, on charges related to his amphetamine business. ¹ Early that morning his van was blown up on a lonely road in the Big Sur area south of Monterey, California. The debris included expired credit cards and other items identified with Whitson.

Highway Patrol officers had stopped Whitson and his sister-in-law for speeding near Marina, California, a little over two hours before the explosion. Marina is about fifty miles and an hour's drive from the site of the explosion. At the time of the stop, Whitson was driving the van and his sister-in-law was following in another car.

The government's theory was that Whitson intended to create the illusion that he had died in the explosion to explain his planned absence from the Los Angeles prosecution. Whitson testified that he left his van in a restaurant parking lot, and learned of the explosion from news broadcasts. He said he then decided not to return to Los Angeles. Both sides agree that Whitson remained a fugitive until his capture in August 1976.

His sister-in-law's activities also inspired various explanations. The government theory was that she was to drive Whitson away from the planned explosion. Whitson said she had accompanied him to take back papers he expected to receive at a meeting with two men in Marina. She said her purpose was merely to enjoy another episode in their continuing romantic affair, but that she turned around and returned home soon after receiving the traffic ticket.

Whitson's possession of bombs and knowledge of their construction were relevant to the government's case. According to Sergeant Lawrence Gandsey of the Los Angeles County Sheriff's Department, Whitson had said during a search of his office in April 1973 that he had been "in ordnance" while he was in the army. Gandsey also said that he saw an army ordnance publication in Whitson's office. The trial court ordered this evidence suppressed on the theory that Whitson's interview violated his Miranda ² right to silence. Without the challenged statements, the court thought that Gandsey's testimony about the army publication was too remote for admission. Whether or not that ruling was correct, the evidence was not admitted during the prosecution's case.

On direct examination, after the government had rested, Whitson answered his attorney's carefully limited questions. He denied destroying his truck or possessing a bomb or destructive device for the purpose of destroying his truck.

On cross-examination, the government, over defense objections ³ asked Whitson about his knowledge of explosives and about his encounter with Gandsey. Whitson denied any knowledge of explosives, denied telling Gandsey that he had been in the ordnance branch of the army, and denied possessing the army manual. ⁴ The government then put Gandsey on the stand Whitson challenges the receipt of Gandsey's evidence on two grounds: (1) it impeached cross-examination that had gone beyond the scope of the direct examination; and (2) a Miranda -barred statement is not admissible to impeach defense testimony elicited only on cross-examination.

to impeach Whitson's cross-examination testimony. Gandsey gave his version of the encounter, which earlier had been excluded.

The first ground reveals no error. The extent of cross-examination is left largely to the trial court's discretion, and this court monitors that discretion with deference to the trial court's role in deciding what is relevant. United States v. Hearst, 563 F.2d 1331, 1340-41 (9th Cir. 1977); United States v. Palmer, 536 F.2d 1278 (9th Cir. 1976). After Whitson had denied possessing a bomb for the purpose of destroying his van, searching cross-examination on Whitson's general knowledge of explosives was no abuse of discretion.

A question of a different kind, however, arises from the government's impeachment strategy of setting Whitson up. The government asked Whitson about his statements to Gandsey knowing that Gandsey's contradictory testimony had been Miranda-barred.

To determine whether this particular impeachment was error, we look to the Supreme Court's discussion of impeachment by illegally obtained evidence and then examine our own and other courts' responses to the Supreme Court's teaching. ⁵

We begin with the basic proposition that illegally obtained evidence may not be used in a criminal trial. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). There are, of course, exceptions.

In Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the Court allowed the use of illegally seized evidence for impeachment. On direct examination, the defendant had denied any prior contact with the narcotics trade. The Court distinguished Agnello and held that, in opening the door on direct, Walder subjected himself to impeachment by evidence of an illegally seized heroin capsule. The Court emphasized that the defendant had made his statements of his own accord, and pointed out that in Agnello it was the government that had insinuated the impeachment foundation into the cross-examination. 347 U.S. at 66, 74 S.Ct. 354.

The distinction between affirmative and defensive use of the exclusionary rule was next considered in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The prosecution in Harris on cross-examination used Miranda -barred statements to contradict the defendant's direct testimony. The Supreme Court affirmed on the basis of Walder. The deterrent effect of the Miranda rules on police practices would not be significantly affected, the Supreme Court said, by the Walder use of noncomplying statements, and defendants would not be encouraged to resort to perjury affirmatively as a defense. In Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), the government also used the Miranda -barred statements to impeach a defendant's affirmative presentation made on direct examination.

This court in United States v. Trejo, 501 F.2d 138, 143-46 (9th Cir. 1974), considered the impact of Agnello, Walder, and Harris on the use of illegally seized evidence to impeach a defendant's statements when offered on cross-examination. Relying on the decision of the California Supreme Court in People v. Taylor, 8 Cal.3d 174, 104 Cal.Rptr. 350, 501 P.2d 918 (1972), we said that " * * * (T)he defendant on direct examination offered no elaborate justification of his conduct, and the prior illegally obtained evidence was therefore not 'inconsistent' or 'conflicting' with that testimony. Defendant did not rely on the illegality of the impeaching evidence as a sword to commit perjury, but simply as a shield against the consequences of concededly improper police practices." United States v. Trejo, 501 F.2d at 145, Quoting People v. Taylor, 8 Cal.3d at 185, 501 P.2d at 925, 104 Cal.Rptr. at 357.

impeachment by illegally seized evidence was error, although in the circumstances of the Trejo case it did not require reversal. We thought that the distinction in Walder between the defendant's statements on direct and on cross survived Harris. As we quoted the California court:

The Trejo reasoning applies here. Whitson on direct examination simply denied destroying his van or possessing a bomb for that purpose. He did not raise an issue of his knowledge about explosives. It was, therefore, inconsistent with Trejo to allow the government to question him about, or to present extrinsic evidence of, his earlier Miranda -barred statements to Gandsey. The Trejo problem was compounded when the government argued the impeaching evidence to the jury as substantive evidence of Whitson's knowledge rather than simply using it for its ostensible purpose of attacking his testimonial credibility. However, Whitson did not object to this line of argument, nor does he raise the issue on appeal. Indeed, his attorney followed the prosecutor's cue and also argued the substantive weight of the evidence to the jury. We assume that counsel made a tactical decision to make the best of a bad situation. Counsel may have thought it unlikely that the jury would in fact limit its use of the evidence to impeachment. The jury had the evidence before it, and some juries are not overly sympathetic to legal technicalities. In these circumstances, there was no "plain error" in the prosecution's argument.

The weight of authority from other jurisdictions teaches that it is error to permit the prosecution to use illegally obtained evidence for impeachment on a matter not opened by the defendant. New York, which created the Harris rule when most federal and state courts refused to allow any use of Miranda -barred statements for impeachment, requires that the defendant open the door to the impeaching evidence by testifying to the point on direct. The prosecutor may not range beyond the direct examination in order to lay a foundation for the tainted evidence as rebuttal. People v. Rahming, 26 N.Y.2d 411, 311 N.Y.S.2d 292, 259 N.E.2d 727 (1970).

A recent and thorough discussion of this problem is found in State v. Kidd, 375 A.2d 1105 (Md.), Cert. denied, 434 U.S. 1002, 98...