United States v. Beye

• Decision Date: 08 July 1971
• Docket Number: No. 24418.,24418.
• Parties: UNITED STATES of America, Plaintiff, v. Richard Kenneth BEYE, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.2d 1037 (1971)

UNITED STATES of America, Plaintiff, v. Richard Kenneth BEYE, Appellant.

No. 24418.

United States Court of Appeals, Ninth Circuit.

July 8, 1971.

William N. Fielden (argued), La Jolla, Cal., for appellant.

Shelby Gott, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.

Before MERRILL and ELY, Circuit Judges, and CROCKER, District Judge^*

PER CURIAM:

Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545.

Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970).¹

Appellant also asserts as error the court's refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom a mistrial had been declared. The court had been advised that this proposed witness would assert his privilege against self-incrimination if questioned about the offense. A hearing out of the presence of the jury served to satisfy the court that such would indeed be the result were the witness called to the stand. Appellant contends, however, that he was entitled to require the witness to take the stand and invoke his privilege in the presence of the jury. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), holds to the contrary and we agree.

Other points asserted by appellant we find to be without merit.

Judgment affirmed.

ELY, Circuit Judge (dissenting):

I respectfully dissent. As I see it, the record is replete with error, and I would, if I could, reverse the judgment of conviction for several reasons.¹ I think it more desirable, however, to direct my principal dissenting comments to only one contention, i. e., that the trial judge erred in refusing to allow Beye to present his former codefendant as a defending witness. In my judgment, that refusal deprived Beye of an essentially fair trial, and the majority's disposition of the issue subverts one of the most basic guarantees of the Constitution.

After our court had given long and careful consideration to Beye's Sixth Amendment claim, and while, in fact, various proposed opinions were in circulation, the United States Court of Appeals for the District of Columbia, sitting en banc, resolved a similar contention. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970). My Brothers dispose of Beye's contention by adopting the majority opinion of the Bowles court. I prefer the approach taken by Chief Judge Bazelon, dissenting in Bowles, but I believe I can demonstrate that even the Bowles majority, had it been presented with the facts now before our court, would have reached an opposite conclusion. To do this, it is necessary that I first set forth, in more detail, the chronology of the events in the District Court, emphasizing, in contrast to Bowles, how greatly more prejudicial was the procedure in our case.

Gene Curtis Smith, the man whom Beye sought to call to the witness stand, had been indicted as a codefendant on charges identical to those of which Beye was convicted. In his opening statement to the jury, Smith's attorney announced that

"the defendant Smith, Curtis Smith, will take the witness stand and will testify as to why they went and how they went to Mexico, what they did when they were in Mexico, who they met when they were in Mexico, and how he happened to be driving as they approached the Salton Sea, and he will testify that he did not know the marijuana was in the car. He will testify as to this fact, we\'re sure. He will offer no explanation on how it got into the car. He has none; but one thing he is sure: he\'s sure he didn\'t know it was there. And I imagine Mr. Milchen will cross-examine him at great length, and it will be for you to judge his credibility."

Thereafter, a mistrial was granted as to Smith, he was excused, and the trial of Beye continued. Thus, when Beye was later refused permission to call Smith as a witness, the jury was deprived of any opportunity to hear Smith exculpate Beye, had he finally chosen to present such testimony, or if he maintained his refusal to testify, to draw any inference opposing the representation which Smith's attorney had made to the jury at the very beginning of the trial. As I see it, the prejudicial statement made by Smith's attorney in our case, a circumstance not present in Bowles, clearly distinguishes the two cases.

In Bowles the defendant had been convicted by a jury of first degree murder, and both he and another testified that one Raymond Smith had told them that he, Smith, had killed the murdered soldier. The District Court refused to permit Bowles to call Smith as a witness after it had ascertained, outside the jury's presence, that Smith would invoke his Fifth Amendment privilege. The district judge ruled that neither side should mention Smith's decision to invoke his privilege against self-incrimination. The Court of Appeals found no error; however, it carefully noted that had either party requested a neutralizing instruction to the effect that Smith was unavailable as a witness and that the jury could draw no inference whatsoever from the fact that he did not testify, a refusal of such a requested instruction would have constituted error. Bowles, supra at 542. Both Judges Bazelon and Wright, in their separate dissents, viewed the failure to give this neutralizing instruction, requested or not, as reversible error. Bowles, supra, at 546-547. Here, no such neutralizing instruction was given, and I believe it unthinkable that the jury did not improperly infer, in the light of the quoted representation by the attorney for Beye's codefendant, the codefendant's having been excused as a defendant, and his failure to be called as a witness in Beye's behalf, that Beye was indeed guilty. The trial judge gave the jury no instruction relating to Smith's failure to be called as a witness and gave only the usual, general instruction to the effect that statements of counsel are not evidence. To negate any possible inference harmful to Beye, the court should have either permitted Beye to produce Smith as a witness or given such a neutralizing instruction as that suggested by the District of Columbia Circuit in Bowles.

Now turning my attention to the significant Sixth Amendment problem, I add a few thoughts of my own as to why I am so very firmly convinced of the soundness of Chief Judge Bazelon's dissenting opinion in Bowles.

When Beye proposed to call Smith as a witness, Smith advised the court that he would assert his privilege against self-incrimination if asked about any of the facts of the offense. After a hearing out of the presence of the jury, the court ruled that Beye could not call Smith to the stand, even to have him sworn as a witness. Beye concedes that if Smith had been called as a witness he could have properly refused to answer all relevant questions. However, he challenges the trial judge's refusal to require Smith to take the stand and invoke the privilege in the presence of the jury, arguing that this action deprived him of his Sixth Amendment guarantee to compulsory process for obtaining witnesses.

The Supreme Court defined the constitutional guarantee on which Beye relies in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Under Washington the Sixth Amendment guarantee of compulsory process means, at least, that a defendant may not arbitrarily be denied the right to call a competent witness whose "testimony would have been relevant and material to the defense."²Id. at 23, 87 S.Ct. at 1925. Thus, there are two questions: (1) whether the trial court's refusal to allow Beye to call Smith was an arbitrary denial and (2) whether Smith, who was physically and mentally capable of testifying to events that he had personally observed, could have presented testimony that would have been relevant and material to the defense.

The trial court ruled, as we know, that Smith, in the exercise of his privilege against self-incrimination, could refuse to take the stand and be sworn. I hold that this was error. While it is universally held that the defendant in a criminal prosecution may exercise the privilege by refusing to take the stand at his own trial,³ this rule should not be applicable to Smith since he had ceased to hold the status of defendant in the trial. Our court, recognizing the distinction in another context,⁴ has written that "under the historical development of the privilege against self incrimination, it is only in direct defense of a crime that a defendant does not have to be sworn (or affirm) and take the stand." Wollan v. United States, 244 F. 2d 212, 214 (9th Cir.), rev'd on other grounds sub nom. Simpson v. United States, 355 U.S. 7, 78 S.Ct. 14, 2 L.Ed.2d 22 (1957). The exception allowing a defendant on trial to refuse to take the stand derives from the concern that he would confront a dilemma if he were called by the prosecution and declined to answer questions on Fifth Amendment grounds. Since the jury might likely infer guilt from the mere assertion of the privilege, the defendant would be compelled to choose between waiving his privilege and remaining silent at the risk of a damaging inference being drawn against him. United States v. Scully, 225 F.2d 113 (2d Cir.), cert. denied, 350 U.S. 897, 100 L.Ed. 788, 76 S. Ct. 156 (1955). To impose such a choice impermissibly depreciates the value of the constitutional privilege. See Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229 (1965).

No such dilemma would have confronted Smith had he taken the...