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United States v. Agee


filed: February 21, 1978.



Author: Gibbons

Before VAN DUSEN, GIBBONS, Circuit Judges, and GERRY,*fn* District Judge

GIBBONS, Circuit 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.


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.


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.


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?

A. No, sir.

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 car impeached his credibility at trial.

He [Agee] testified that he did not advise the police as to what had happened in the car. All of these are things that have to be taken into consideration in determining the weight of the evidence, the credibility and the truth and the reasonableness of Mr. Agee's story - I'm sorry - testimony.

Appellant's Appendix, at p. A-279.

The Assistant United States Attorney's cross-examination of Agee included the following dialogue:

Q. You had in mind that you could straighten it out with the police back in the rear of the car about your brakelights and then go on your way. Is that right?

A. No, had in mind straightening that out and not just going on my way, no.

Q. Well, what was in your mind?

A. What was in my mind? If I could get out of the policemen not giving me a ticket I was going to tell Smith to take his stuff and get out of my car. That's what was in my mind.

Q. But it wasn't in your mind to say to the police, "That man in my car has dope. Arrest him"?

A. No, ma'am.

Appellant's Appendix, at pp. A-255-56. In her closing argument, the Assistant United States Attorney went even further than Smith's counsel had gone in arguing the importance of Agee's silence at the time of his arrest. The government attorney contended that Agee's silence was affirmative evidence of Agee's commission of the charged offense.

Now, whether or not you believe the defendant Agee's testimony, I suggest to you that even if you accept it, he makes himself guilty of the crime charged....

Did he not, when he, intentionally knowing that these were narcotics, hide the narcotics from the police, went back to the police car and attempted to divert the police from finding the narcotics instead of saying to the police, "Hey, that guy has dope. Arrest him," when he conceals the narcotics from the police with the intention of giving them back to Smith, knowing that in all probability Smith is going to sell them? Is he not putting himself in the position of being an aider and abetter of Mr. Smith.

Appellant's Appendix, at pp. A-266-67 (emphasis supplied).

It has long been an assumption of the law of evidence that a " failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact." IIIA Wigmore, Evidence § 1042 (Chadbourn rev. 1970). For a moment we pass the question whether that assumption, when applied to a traffic stop by a Philadelphia police officer of a driver of an unregistered and mechanically defective taxicab, realistically comports with the behavioral expectations of the parties. Applying the assumption to the present case, the government contends that Agee's silence about the presence of the heroin amounted to an affirmative denial of such presence and thus to purposeful concealment of the drugs. Where silence is equivalent to an assertion, that silence becomes relevant to a witness' testimony as a prior inconsistent statement if the assumed affirmation is inconsistent with the witness' present testimony. If offered against a party to the action, that silence is relevant as an admission, regardless of that party's testimony.

In a criminal prosecution, however, there is obvious tension between the rule of evidence treating silence as an affirmation and the constitutional privilege against self-incrimination. For many years in state prosecutions, under the rule of Twining v. New Jersey, 211 U.S. 78 (1908), the Supreme Court resolved this tension by permitting the defendant's assertion of the privilege against self-incrimination to be used as evidence that the defendant could not, if he testified, deny the charge against him. Such use of a constitutionally protected right to remain silent came to an end in Malloy v. Hogan, 378 U.S. 1 (1964 n8 [footnote omitted] where the Supreme Court held the privilege against self-incrimination applicable to state prosecutions. After Malloy v. Hogan it was clear that since the defendant in a criminal case had a constitutional right to remain silent, his exercise of that right could not be used against him substantively as an affirmation by silence. The privilege against self-incrimination received further support from the Supreme Court's decisions in Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona, 384 U.S. 436 (1966), which dealt with the circumstances in which actual statements, rather than silence, would be excluded.

In Harris v. New York, 401 U.S. 222 (1971), the Court held that although an actual statement obtained in violation of Miranda could not be used as substantive evidence against the defendant, it could be used for impeachment purposes as a prior inconsistent statement if the defendant testified in a manner inconsistent with that prior statement. After the decision in Harris v. New York, the courts of appeals divided on the question whether, despite the rule of Malloy v. Hogan, an affirmation by silence could be used for impeachment purposes when the defendant took the stand at his trial.*fn2 The Supreme Court resolved this conflict in United States v. Hale, 422 U.S. 171 ( 1975), and Doyle v. Ohio, 426 U.S. 610 (1976). In Hale the Court held that the defendant's post-arrest silence could not be used even for impeachment purposes. The Court reasoned, first, that the defendant's silence was not sufficiently probative of an inconsistency with his in-court testimony to warrant admission of the silence as impeachment evidence. 422 U.S. at 177. In addition, the Court believed that admitting into evidence the defendant's post-arrest silence would be highly prejudicial. Id. at 180. The decision in Hale applied only to federal prosecutions. However, in Doyle the Court held that the rule excluding even the impeaching use of such silence was constitutionally required and therefore binding on the states. If, as Hale and Doyle hold, a defendant's silence cannot be treated as a prior inconsistent statement for impeachment purposes, a fortiori it cannot be used substantively as an admission tending to prove the commission of the offense.

At the trial below Agee testified that he did not report Smith's possession of the heroin because he did not think that the police would believe him and because he wanted to speak to an attorney before making a statement. He acknowledged that he was aware that contraband was in his car. There is no inconsistency between Agee's trial testimony and his silence as to Smith's possession of narcotics. Indeed the government does not urge that Agee's silence was admissible on impeachment grounds, even though counsel for co-defendant Smith argued as much to the jury. Rather, the government argues, as it did to the jury, that Agee's silence was admissible as substantive proof that Agee was an accessory to Smith's offense of possessing heroin with intent to sell. This argument is based upon 18 U.S.C. § 2(a).

Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(emphasis supplied). By failing to tell the police of Smith's possession, the government argues, Agee aided and abetted Smith's possession, even though Agee believed that disclosure would tend to incriminate himself because the police would not believe his version of the facts. In effect, the government takes the position that anyone having knowledge of any offense which is ongoing in nature, such as a possessory offense, becomes a principal in that offense if he does not immediately disclose the offense, even though such disclosure might tend to incriminate him. We have no difficulty with such a construction of 18 U.S.C. § 2(a) when a defendant takes active steps to conceal the crime. Thus we think that it was proper to argue to the jury that by moving to the rear of the car Agee may have intended to divert attention from the contraband. But here the government went further and argued the silence alone was criminal. So construed, 18 U.S.C. § 2(a) would run afoul of the fifth amendment guarantee against self-incrimination, for resort to silence would be penalized criminally. We do not so construe the statute. Agee's silence was not a crime. Rather, that silence was protected by the fifth amendment from any incriminating use, either substantively or for purposes of impeachment. We hold that the government's questioning and argument to the jury with regard to Agee's silence at the time of his arrest were improper.

The government urges that the use to which Agee's silence was put here falls outside the Hale-Doyle prohibition because in those cases the silence referred to occurred after the defendant's arrest and after he was given Miranda warnings, while in this case the silence occurred prior to arrest and prior to any Miranda warnings. It is true, as the government argues, that Hale and Doyle dealt only with post-arrest and post- Miranda warning silence.*fn3 Nevertheless, we do not believe that the result should be any different here. For one thing, there is at least a serious ambiguity about Agee's status at the time of his silence referred to in cross-examination and closing argument. Immediately thereafter he was subjected to a full body search. Accordingly, at the time of his silence Agee might have been subject to constraints imposed by the police officers, thereby triggering even the narrowest application of Hale and Doyle. If, at the time of his silence, Agee was in the custody of the policemen, the fact that Miranda warnings may not have been given does not preclude the application of the rule enunciated in Hale and Doyle.*fn4 In addition, while the government's comments were arguably restricted to the time frame prior to the appellant's arrest, Smith's counsel's comments were certainly not so restricted. Thus, the conduct of Smith's counsel might cause this case to fall squarely within the proscription of Hale and Doyle.

More importantly, we believe that nothing should be made either of the presence or absence of custody or of the presence or absence of Miranda warnings. The government's attempt to rely on these factors misstates the issue and attempts to treat a proposed exception to the general applicability of the fifth amendment as if it were the rule. Hale and Doyle are not the rule. Rather, the rule appears in fifth amendment cases like Malloy v. Hogan. Hale and Doyle simply refused to extend the Harris v. New York exception of impeaching use to post-arrest silence. Neither Hale nor Doyle suggests that the possibility of substantive rather than impeaching use of such silence was ever contemplated by the Court. Allowing substantive use of silence not only would circumvent the holdings of Hale and Doyle, but also would amount to overruling Malloy v. Hogan and reviving Twining v. New Jersey.

Moreover, even if Malloy v. Hogan, United States v. Hale, and Doyle v. Ohio could be distinguished, we do not believe that the circumstances here present an appropriate application of the evidentiary rule equating silence with an affirmation. The rule is usually justified in terms of behavioral expectations. In other words, common human experience suggests that people generally will deny false accusations and will fully disclose facts when making formal disclosures, as in testimony or pleadings. See IIIA, Wigmore, Evidence § 1042 (Chadbourn rev. 1970). But common human experience does not suggest that a driver of an illegal taxicab stopped by a Philadelphia police officer for what the driver thinks is a motor vehicle violation and confronted, according to his testimony, with unexpected knowledge that his vehicle contained contraband and with an inquiry about guns and drugs in his possession, would react by volunteering any more information than was volunteered here. It seems to us as likely as not that the reaction would be to say as little as possible. In addition, prior to arrest it is less likely that a defendant will be confronted with a formal accusation of guilt. Absent such an accusation, a defendant's silence is highly ambiguous. For both of these reasons the inference sought to be drawn from silence here was not sufficiently reliable to be properly admissible as substantive or impeachment evidence, even apart from any fifth amendment problems.

Finally, the government urges that if there was an improper reference to Agee's silenc e hat error may not be considered on appeal because Agee's counsel failed to object simultaneously. For two reasons that argument must be rejected. In the first place the objection was made quite explicitly at the outset of the case. Agee's counsel pointed out that it would be improper for the government or for co-defendant's counsel to inquire about or comment upon the subject matter in the presence of the jury. All of the participants in the trial were aware of Agee's objection. Instead of ruling that no such inquiry should be made, the District Court in effect permitted the attorneys for the government and for Smith to ask the question and to put Agee in the position of objecting before the jury. Under these circumstances the policy behind the simultaneous objection rule of affording the opportunity to avoid error is not implicated. Everyone involved in the case was forewarned and, consequently, the error could have been avoided. Secondly, even in cases where no objection whatsoever was made, it has been held repeatedly that prosecutorial utilization of the defendant's silence is plain error. E.g., United States v. Harp, 536 F.2d 601, 602 (5th Cir. 1976); United States v. Arnold, 425 F.2d 204, 206 (10th Cir. 1970); United States v. Nolan, 416 F.2d 588, 594 (10th Cir.), cert. denied, 369 U.S. 912 (1969); United States v. Brinson, 411 F.2d 1057, 1059 (6th Cir. 1969). Cf. United States v. Anderson, 498 F.2d 1038, 1040-44 (D.C. Cir. 1974), aff'd sub nom., United States v. Hale, 422 U.S. 171 (1975) (cross-examination of defendant with regard to silence at time of arrest not harmless error).


Immediately after Mr. Agee took the stand and was sworn, the following colloquy took place:

THE COURT: Mr. Agee, I know that Mr. Turner, of course, has informed you that as a defendant in this case you have absolutely no duty or compulsion to testify and you have your absolute right under the Fifth Amendment to remain silent and I would instruct the jury that they could not hold that against you.

Now, do you understand that by testifying, however, you are subjecting yourself, obviously, to the same scrutiny as any other witness has and that your testimony is, of course, under oath and my question: Are you voluntarily giving up your privilege, fully understanding your privilege to not testify under the Fifth Amendment?

THE WITNESS: Your Honor, I would like to talk to my lawyer and let him to explain this to me more better so I can clearly understand this.

THE COURT: Very good. I think you should talk to your client, Mr. Turner.

MR. TURNER: Your Honor, I would object to the remarks of the Court in the presence of the jury. I would request a side bar conference.

THE COURT: Well, let me just say this on the record. It is my absolute standard procedure whenever any defendant takes the stand that the defendant understands the rights that he is giving up so that there could be no question about that and I don't see any need for a side bar conference.

If you wish to have one, we can have one. However, I think Mr. Agee has requested that he would like to discuss -

MR. TURNER: In that case, I will request a recess, your Honor.

THE COURT: All right. How long a period will that be?

MR. TURNER: About one minute will be sufficient.

THE COURT: We can stay here while you discuss matters with Mr. Agee.

MR. TURNER: Mr. Agee, will you step back here, please?

(A discussion takes place which is held off the record.)

THE COURT: Mr. Agee, you have had an opportunity to discuss the matter I have just set forth with Mr. Turner and will you tell me what your decision is?

THE WITNESS: I intend to take the witness stand, your Honor.

THE COURT: All right.

The appellant urges that the likely inference a juror would draw from singling him out for such interrogation was that his testimony would either incriminate him or be perjurious. The government contends, on the other hand, that if the interrogation had any effect at all, "it is likely that [it] enhanced Agee's credibility by emphasizing the voluntary nature of his testimony." Appellee's Brief, at p. 14. We think that Agee's version of the probable effect on a juror is at least as likely as the government's, if not more so. Since such questioning of the defendant may be prejudicial and since we can think of no reason why any defendant represented by able counsel should be subjected to it in the presence of the jury, we expressly disapprove of the practice. It is true that a trial judge may, and sometimes even should, warn a witness of his fifth amendment rights and of the dangers of perjury. But he cannot, by such warnings to a witness, tilt the scales of justice against the defendant. See Webb v. Texas, 409 U.S. 95 (1972) (trial judge's extended warning to defense witness not to lie discouraged the witness from testifying and denied the defendant the opportunity to present witnesses in his defense). Accord, United States v. Morrison, 535 F.2d 223 (3d Cir. 1976). When the witness is a defendant who is represented by able counsel and who is about to testify on his own behalf, the need for any such warnings seems slight. More importantly, even if under certain circumstances such warnings might be necessary, the need for giving them in the presence of the jury is non-existent.


Since the government and counsel for the co-defendant Smith made improper references to Agee's silence in cross-examination and in oral argument to the jury and since the court may have impugned the appellant's credibility before the jury, the judgment of conviction and sentence cannot stand. The judgment appealed from will be reversed and the case remanded for a new trial.

VAN DUSEN, Circuit Judge, dissenting:

I respectfully dissent from part IV of the majority's opinion because I believe it expands the holdings of the Supreme Court in Doyle v. Ohio, 426 U.S. 610 (1976), and United States v. Hale, 422 U.S. 171 (1975). I believe that references in cross-examination and summation to Agee's failure to advise the police of Smith's possession of heroin did not on this record result in the jury's assigning more weight to such silence than was warranted. See United States v. Hale, supra at 180.

In United States v. Hale, 422 U.S. 171 (1975), the Supreme Court held that it was impermissible for a federal prosecutor to impeach the defendant's credibility by cross-examining him as to the reasons he remained silent when questioned by police after being arrested for a narcotics violation. In so holding, the Court emphasized that, once arrested, a person's silence may be indicative only of his reliance on the Miranda warnings and his concomitant right to remain silent. Id. at 176-77. In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court applied the same rationale to a state prosecutor's attempt to discredit a defendant by questioning him about his post-arrest silence. The Court stated that:

"Silence in the wake of [Miranda] warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S. at 177."

426 U.S. at 617-18.

Thus, both Hale and Doyle relied on the fact that the defendants had been warned of their right to remain silent before the silence relied on by the prosecution occurred.

In the case at hand, Agee, by his own account, had not been arrested nor had he received Miranda warnings when questioned by police. Moreover, Agee's silence not only occurred before any Miranda warnings but also related to an alleged crime for which he had not been stopped or charged. According to his own testimony, Agee believed that he had been stopped for failure to have a properly operating turn signal on his car, not for suspicion of possessing narcotics.*fn1 Because the facts of this case differ in these critical respects from the fact patterns in Hale and Doyle, the latter cases are not controlling. Taken in the entire context of trial examination, the questions put to Agee on cross-examination were probative of his guilt or innocence and were not so "intolerably prejudicial"*fn2 as to warrant reversal of his conviction.*fn3

I believe it is appropriate to analyze separately the implications of each portion of the cross-examinations and the summation. Furthermore, each of the challenged questions and remarks should be assessed in light of Agee's own direct examination. In recounting what occurred when his car was pulled over by the police, Agee explained not only his actions but also his inaction:

"I pulled over on the side and so my passenger, Smith, asked me - he said, 'Why are you stopping?' I said, 'The policeman is in back of me. They're pulling me over.' Smith said to me, 'I have dope on me.' He throwed a bag of silver foil bag over across over to me and I picked it up. I was going to throw it back on him. I didn't know whether to throw it back on him or throw it out the window or what."

Appellant's appendix, A-240; Tr. 3.76.

On further questioning by his own counsel, Agee admitted that, rather than returning or discarding the bundle of dope, he attempted to hide it, first under the console and then under his seat. Id. Thus, on direct examination, Agee revealed actions contemplated, but not taken, to relinquish possession of the heroin. These actions, had they been taken, would have been probative of his innocence. By admitting that he considered taking exculpatory actions but failed to do so, Agee revealed pre-arrest conduct, similar to his refusal to divulge Smith's possession, that cast doubt on his alibi.

Agee continued his account on direct examination by explaining what was in his mind when he first confronted the police officers:

"I got out of my car. I walked back toward the policeman.

"Now, I thought that they felt like they were stopping me because I didn't have no brakelights. This is why I thought they were stopping me.

"So anyway I come to the back. So I told the policeman, I said, 'I know why you're stopping me, because I don't have any brakelights.'

"So I showed him my owner's card and my driver's license. So he looked at my owner's card and my driver's license. So he asked me, you know, so he said, 'Do you have any weapons on you?' So I said, 'No, I don't have any weapons.'

"He said, 'Do you have any dope?' So I said, 'No, I don't have no dope on me.'

"So he searched me. So then I went to open up the trunk of my car.... The police officer didn't bother about looking into the trunk. He went straight to the front of my car. He looked underneath the seat. He found this package that I had stuck underneath the seat.

"So he said, 'Oh, so you selling dope?' So he came back."

Appellant's appendix, A-241-42; Tr. 3.77-3.78.

Apparently Agee had not considered himself under suspicion for possessing drugs in his car. He admitted that before its discovery he had not remained silent but had denied having dope in the car. On being confronted with discovery of the heroin, Agee's direct testimony clearly indicated that he did not respond to the police, nor did he try to explain away the presence of the partially hidden bundles. Thus, Agee's own direct examination revealed to the jury the full extent of his actions and inactions and his comments and silence with regard to the hidden narcotics.

The United States Attorney's cross-examination of Agee did not open new avenues of inquiry. Rather, the prosecutor re-examined each part of Agee's narrative, including his previously expressed intentions and inactions. The series of questions quoted by the majority at pages 8-9 supra merely retraced the answers from Agee's direct examination. Although it is true that the last question, whether Agee had considered exposing Smith to the police, had not been asked on direct examination in so many words, Agee's response of silence had otherwise been conveyed to the jury during the direct examination. In sum, I conclude that the United States Attorney's questioning of Agee, based as it was on the direct examination, did not unfairly prejudice him.

During her summation, the United States Attorney reviewed the defendant's entire testimony and suggested that Agee's account of his intentions and actions, if true, constituted aiding and abetting Smith's crime of possessing heroin with an intent to distribute it. See 18 U.S.C. § 2 (1970). The United States Attorney did not point exclusively to Agee's failure to expose Smith's possession, but she referred to Agee's entire course of conduct and his expressed intention to evict Smith and his drugs from the car. Taken in context, the jury was properly asked to consider the totality of Agee's inactions which had been amply revealed on direct examination.*fn4

Concededly, Smith's counsel's reference during cross-examination and summation to whether Agee made any statement to the police at any time (A-254, A-279; Tr. 3.90, 3.132; see p. 8 of majority's opinion) was somewhat openended. But it is improbable that the jury understood the question or remark as referring to the defendant's postarrest silence. More importantly, whatever prejudice may have inhered in the ambiguity was not brought to the trial court's attention by a contemporaneous objection. The trial judge's pre-trial ruling made clear that he would rule on objections to particular questions during the course of the trial. See p. 7 of the majority opinion.*fn5 Yet at no time did Agee's counsel either object to any specific questioning or renew his pre-trial motion. Such objection could have been made out of hearing of the jury, as indeed was an unrelated objection to Smith's counsel's closing statement. See A-277-A-278; Tr. 3.130-3.131. Had a specific objection or motion to strike been made at the conclusion of the direct testimony, or at least after the first arguably offending cross-question, the trial court would have had an opportunity to mark off impermissible areas of inquiry with specificity. The fact that Agee, on appeal, now points to the cumulative prejudice of separate questions and later summations is in large measure a result of his counsel's trial tactics. Thus, taken separately, or as a whole, the cross-examination of Agee and the attorneys' summations did not create intolerable prejudice*fn6 by probing into the defendant's silence and inaction prior to his arrest for illegal narcotics possession.

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