ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 76-389-1)
Before VAN DUSEN, GIBBONS, Circuit Judges, and GERRY,*fn* District Judge
George Agee was convicted in the District Court of possession of heroin in violation of 21 U.S.C. § 841. He appeals both from the judgment of sentence entered below and from the denial of his motion for a new trial. In this appeal he urges: (1) that the indictment should have been dismissed under the Justice Department's Petite*fn1 policy; (2) that evidence suppressed by a state court in a state prosecution arising out of the same incident should have been suppressed in this federal prosecution; (3) that the Court erred in refusing to include one of his requested charges in its instructions to the jury; (4) that both the government attorney and counsel for a co-defendant improperly referred in cross-examination and in closing argument to the appellant's silence immediately prior to his arrest; and (5) that the trial judge should not have interrogated him in the presence of the jury about his fifth amendment privilege not to testify. Since we find merit in the appellant's fourth and fifth contentions, we reverse his conviction and remand for a new trial.
Agee and co-defendant Andrew Smith were arrested by the Philadelphia police on February 12, 1976. Philadelphia police officers Michael Zagursky and Robert Wissman testified that on that morning they stopped an automobile for making two turns without signalling. Officer Wissman approached the driver's side of the stopped automobile, where the appellant was seated, and Zagursky approached the passenger's side, where Smith was seated. Both officers testified that, while approaching the front part of the car, they saw foil packages containing glassine packets of a tannish-white powder. One package was on the floor of the car immediately in front of Smith. The other package was in the hands of Agee, who, according to Wissman, was attempting to shove it under the car seat. Wissman testified that he then removed Agee from the car and arrested him for possession of what the officer believed to be heroin. After making the arrest, Officer Wissman retrieved the packages from the floor of the car at the edge of the seat and between the brake pedal and the seat. The packets were later found to contain a mixture of heroin, quinine, procaine, and reducing sugar.
Agee was tried with his co-defendant, Smith. At the trial he testified on his own behalf, while Smith did not. Agee stated that on the day of his arrest he was driving an unlicensed taxicab and that he had picked up Smith, whom he did not know, as a passenger. He testified that he drove Smith to one location, waited for him, and, at Smith's request, started to drive him back to the spot where he had first picked him up. The unlicensed taxicab had a defective brakelight. According to Agee's testimony, when the police stopped the car, Smith threw one tin foil packet at him and said "I have dope on me." Agee claimed that he had no prior knowledge of Smith's possession of narcotics. Agee tried unsuccessfully to conceal the packet in the console compartment of the car and finally thrust the packet under the seat. He then left the car and walked to its rear, where he said to one of the officers, "I know why you're stopping me, because I don't have any brakelights." When the officer asked him if he had any weapons or narcotics, he answered negatively. The officer searched him and then searched the car. Pursuant to the second search, the officer found the packets indicated earlier.
II. THE PETITE AND SUPPRESSION CONTENTIONS
Agee's first two contentions are interrelated, since both are based upon an indictment returned by a grand jury for the Commonwealth of Pennsylvania. That indictment, which was returned prior to the federal indictment, charged Agee with possession of heroin with intent to distribute and with conspiracy. Agree filed a motion in the Philadelphia Court of Common Pleas to suppress the heroin found in his car at the time of his arrest on the ground that it was unlawfully seized. The police contended that the seizure was incident to a lawful arrest. Judge Bernard J. Goodheart found that the police officers' testimony as to probable cause to make the arrest was not credible. Consequently, he granted Agee's suppression motion. Over the defendant's objection, the Commonwealth then nolle prossed the indictment. Subsequently, a federal grand jury in the Eastern District of Pennsylvania returned the indictment in the present case, charging the same incident as a violation of 18 U.S.C. § 841.
Agee filed a pre-trial motion to dismiss the federal indictment on the ground that it violated both the double jeopardy clause of the fifth amendment and the Justice Department's policy against successive state-federal prosecutions for the same conduct. See Rinaldi v. United States, 46 U.S.L.W. 3304 (U.S. Nov. 7, 1977); Petite v. United States, 361 U.S. 529 (1960). Since the successive prosecutions here were brought by different sovereigns (i.e. the Commonwealth of Pennsylvania and the federal government), the appellant's double jeopardy contention is groundless. See Abbate v. United States, 359 U.S. 187 (1959). See also Bartkus v. United States, 359 U.S. 121, 128-39 (1959). In addition, since the state prosecution was nolle prossed before the federal prosecution began, the federal policy of self-restraint described in Rinaldi and Petite does not apply. Therefore, the District Court did not err in denying Agee's motion to dismiss the indictment.
Relying on the Supreme Court's decision in Ashe v. Swenson, 397 U.S. 436 (1970), Agee also filed a motion below to suppress the heroin found in his car and obtained by the federal prosecutor from the Pennsylvania authorities. Agee contended that the federal government was collaterally estopped from relitigating the question of the legality of the seizure, which had been decided adversely to the state government by the state trial judge, and that consequently the federal government could not make use of the illegally obtained evidence. The problems with the appellant's theory are twofold. First, the United States was not a party to the Common Pleas Court proceeding and, second, no federal agents participated in the seizure the legality of which that court litigated. We need not consider whether, in a case where the conduct of federal personages was litigated in a state prosecution, Ashe v. Swenson should be extended to prevent relitigation of that conduct in a federal prosecution arising out of the same facts. We merely hold that the United States is not estopped from relitigating in a federal prosecution the validity of a seizure made by state police officers and ruled upon by a state court. See, e.g., Elkins v. United States, 364 U.S. 206, 224 (1960); United States v. Sifuentes, 504 F.2d 845, 849 (4th Cir. 1974), United States v. Smith, 446 F.2d 200, 202 (4th Cir. 1971). Therefore, the District Court did not err in holding a federal hearing on the suppression issue and in making its own credibility determinations. On the basis of the facts found by the Court below, the suppression motion was properly denied.
III. AGEE'S REQUEST TO CHARGE
As discussed earlier, the appellant's defense to the charge of heroin possession was that his possession was momentary, fleeting, and involuntary. The heroin, he claimed, was thrust upon him by a passenger in his unlicensed taxicab. Pursuant to that defense, Agee requested that the District Judge include the following charge in his instruction to the jury:
The length of time which a person holds an object is relevant to the issue of knowing and intentional control and thus to legal possession. If you find that a person holds an object only fleetingly and momentarily and thereby does not form an intent to exercise dominion and control over that object, then you are instructed that you must find that the defendant did not knowingly and intentionally possess that object and that you must find the defendant not guilty.
Certainly the requested charge was consistent with Agee's testimony and thus with the defense theory. Nevertheless, in view of the charge actually given, we do not find that the judge's refusal to give the requested charge was error. In the actual charge the District Court instructed the jury that, in order to convict Agee, it must find that his possession was knowing and intentional. The charge also carefully defined those legal terms. As given, the charge was in no way inconsistent with the defense theory. While the court might have chosen to do so, it was not required to illustrate the application of correctly stated legal principles by reference to one factual inference which the defense would have drawn from the evidence. Viewed in its entirety, the charge was adequate.
IV. THE REFERENCES TO AGEE'S SILENCE
At the outset of the trial, obviously anticipating that his client would take the stand, Agee's attorney called to the District Court's attention the decision of the Supreme Court in United States v. Hale, 422 U.S. 171 (1975). He asked for a preliminary ruling that the appellant's silence at the time of arrest was inadmissible for any purpose and that such silence should not be the subject of any inquiries or comments during the course of the trial. When asked by the trial judge to explain why he was raising the issue before trial, counsel answered:
Well, your honor, I don't want it to arise during the proceedings when the jury is in the box.
Appellant's Appendix, at p. A-151. When the Court declined to rule on the issue in advance, Agee's counsel repeated his request:
[When] they [the arresting officers] made the arrest, it's my understanding that no statements were made by Mr. Agee.
I would respectfully request that the Court bar questioning either on direct or cross examination on that specific point by either counsel for the Government or my co-counsel, Mr. Gershenfeld. Once again, under Hale, your Honor, I believe it would be blatantly inadmissible.
Appellant's Appendix, at p. A-156. The Court responded to counsel's request as follows:
Well, the fact that no statement was made, the jury is certainly going to be appropriately instructed and you can have the appropriate instruction when it goes to the jury that the fact that no statement was made cannot in any way be taken as evidence of any admission, that he has an absolute right to be silent, so forth and so on.
Appellant's Appendix, at p. A-156-57. Agee's counsel persisted in seeking to prevent questioning at trial on the subject of Agee's silence at the time of arrest. However, the district judge ruled only that if a specific question regarding Agee's silence were asked, he would rule on counsel's objection at that time.
Counsel for the government and for co-defendant Smith were present during this colloquy, in which the court in effect ruled that they could at least inquire, in the presence of the jury, about Agee's silence at the time of arrest. During the course of the trial both lawyers took advantage of this ruling.
Smith's counsel's obvious strategy was to convince the jury that Agee, the car owner, rather than Smith, the passenger, possessed the heroin. Consequently, on cross-examination Smith's counsel questioned Agee:
Q. Did you make any statement to the police at any time?
Appellant's Appendix, at p. A-254. Later, in his closing argument to the jury, Smith's counsel argued that Agee's silence about the narcotics in his ...