but stand mute on the merits of the charge, that the jury would draw the prohibited adverse inference from his conduct.
The consequences of not holding such a hearing here were to deprive defendant of a full opportunity to carry the burden that I found he had not sustained
and inadvertently to infringe his privilege against self-incrimination. Had a suppression hearing been held, defendant could have called witnesses to substantiate, if he could, his allegations of illegal search and seizure. He would not have been bound by the Government's choice of witnesses, as he was here, in order to get a determination on the exclusion question before his own case began.
One of the witnesses he might have called was himself. Had he been able to testify on the suppression issue at the time the evidence he challenged was introduced, he would not have had to decide whether to take the stand in his own behalf without the benefit of a final ruling on the suppression issue. While I had at least twice before defendant opened his case denied the motion to suppress, both times I had considered all the testimony preceding my ruling in determining that there had been consent to the search. When at the close of the Government's case, I denied the motion for failure to meet the burden of proof, the inference might reasonably have been drawn by defendant that by his testimony he might fill the evidentiary void. That such a belief was well-founded is indicated by my later consideration - albeit rejection - of defendant's testimony on the consent issue. Thus, Blalock had to choose whether to take the stand (1) without the benefit of a final ruling on the suppression issue, i.e., without knowing precisely how much evidence was against him, and (2) with the added inducement that if he took the stand he might convince me of the absence of consent to the search. Yet he was entitled to know before he waived his privilege on the merits of the charge by testifying thereon what the admissible evidence against him was. If the money had been suppressed, he would not have felt compelled to attempt to explain his possession of it, as he did, and might have chosen to remain silent altogether. And if it were to be admitted, the possibility of its ultimate exclusion could not have lingered as an inducement raising the ante for defendant to testify.
I conclude, therefore, that Blalock was placed in the unfortunate position of being coerced to take the stand and waive his fifth amendment privilege to support his fourth amendment contention. This was a dilemma both impermissible, cf. Jones v. United States, 362 U.S. 257, 261-264, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), and unnecessary. The motion should have been heard outside the presence of the jury; Blalock should have been given an opportunity to testify on the suppression issue alone and to present his side of the issue with his own witnesses in his own manner; and the final decision on the motion should have been made not later than the conclusion of the Government's case-in-chief, so that defendant's decision whether to testify could be informed and unfettered. As it was, the scope of the choice the privilege affords was "cut down" by "making its assertion costly." Griffin v. State of California, 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
The treatment of the motion to suppress prejudiced defendant's trial. It is ordinarily permissible to remedy a deficient suppression hearing by merely ordering a new and full hearing, decision on the motion for a new trial to turn on the outcome of that hearing. See Campbell v. United States, 365 U.S. 85, 98-99, 81 S. Ct. 421, 5 L. Ed. 2d 428 (1961); United States v. Shotwell Mfg. Co., 355 U.S. 233, 245-246, 78 S. Ct. 245, 2 L. Ed. 2d 234 (1957); Battle v. United States, 120 U.S. App. D.C. 221, 345 F.2d 438, 440 (C.A.D.C.1965); Peckham v. United States, 93 U.S.App.D.C. 136, 210 F.2d 693, 697 (1953). Cf. Jackson v. Denno, 378 U.S. 368, 394, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). That course would not be appropriate here, however. If the difficulty were just that Blalock did not know how much admissible evidence was confronting him, and after a new suppression hearing it were found that the challenged evidence was indeed admissible, a new hearing would suffice to cure any defect in the prior handling of the motion. But there was an additional vice here. Blalock was unconstitutionally induced to testify in his own behalf because of the prospect, not only that he could exonerate himself of the charges (which is the usual and proper inducement), but that he could persuade me to rule the evidence inadmissible. No new hearing on the motion to suppress, regardless of its outcome, could cure that subtle coercion, which resulted from the failure to hear and decide the motion properly in the Government's case. This rather unusual infringement of the privilege against self-incrimination requires that both a new trial and a new hearing prior thereto on defendant's motion for suppression under F.R.Crim.P. 41(e) be afforded. Cf. Pate v. Robinson, 383 U.S. 375, 386, 387, 86 S. Ct. 836, 842, 843, 15 L. Ed. 2d 815, 822-823 (March 7, 1966).
Defendant has also made a motion in arrest of judgment because of insufficient proof of venue. That motion is denied. The circumstantial proof of venue was ample. See United States v. Karavias, 170 F.2d 968 (C.A.7, 1948); Cauley v. United States, 355 F.2d 175 (C.A.5, 1966).
AND NOW, May 13, 1966, it is ordered as follows:
1. Defendant's motion in arrest of judgment is denied.
2. Defendant's motion for a new trial is granted.
3. Defendant's motion for suppression under F.R.Crim.P. 41(e), at the trial, is reinstated and is scheduled for hearing before the undersigned on May 24, 1966 at 11:00 o'clock a.m.