The opinion of the court was delivered by: FOGEL
Defendants George Agee and Andrew Smith were convicted by a jury on February 23, 1977, of possession with intent to distribute a Schedule I narcotic controlled substance.
Each defendant has filed post-trial motions, and in the case of Andrew Smith, we heard argument on the motions and allowed supplemental briefing after the argument.
After carefully considering the matters raised by both defendants we concluded that their motions must be denied and entered orders to that effect. Those orders were then appealed to the Court of Appeals for this Circuit. We believe a statement of the reasons that led us to take the action we did is in order.
Defendant Agee raised two contentions in his Motion for Judgment of Acquittal or, in the alternative, for a New Trial: FIRST, that the Court erred by denying his pretrial request for an order precluding any cross-examination of him on the question of his silence at the time of arrest; and SECOND, that his Fifth Amendment rights were violated by his cross-examination by counsel for co-defendant Smith concerning that silence at the time of arrest.
A. Pretrial Evidentiary Rulings
Just prior to the swearing of the jury which had been selected to try the matter, counsel for Agee requested a ruling as to whether cross-examination of Agee would be permitted with respect to his silence at the time of arrest. We refused to make such an evidentiary ruling in a vacuum, but advised counsel that we would entertain a request for a ruling during the trial, should the issue become pertinent. Counsel asserts that our refusal to rule on this issue before trial was error, (1) because the law is absolutely clear that a defendant's silence at the time of arrest is not admissible, cf., Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); United States v. Hale, 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133 (1975); and (2) because the very act of posing the question to the defendant, in front of a jury, as to a statement at the time of arrest, would be highly prejudicial to his defense. We disagree.
The crux of defendant's argument turns upon his interpretation of Doyle and Hale. If, as he argues, they lead to the unavoidable conclusion that a defendant's silence at the time of arrest is never, under any circumstance, admissible in a criminal trial, there would indeed be little reason for withholding a pretrial ruling on the matter. However, Doyle and Hale do not sweep so broadly. In both cases, the Supreme Court clearly limited its ruling to the particular facts before it. In Doyle the Court held that:
the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.
426 U.S. at 619 (emphasis added). The Court noted, however,
[it] goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.
While we do not hold that Doyle and Hale are absolutely inapposite to the facts before us, it is certainly clear that the pertinence of these decisions depends upon the particular factual circumstances of a given case. Was the defendant a suspect at the time of his silence? Was the defendant being questioned by the police? Were Miranda warnings given? Could defendant's silence be construed as an attempt to invoke his Fifth Amendment rights? None of these questions can be adequately answered before the trial itself; we would be asked, in effect, to hypothesize a set of circumstances and rule, not on facts, but on that hypothesis. Not only ...