APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Crim. No. 76-389-1)
Before Gibbons and Van Dusen, Circuit Judges, and Gerry,*fn* District Judge. Before Seitz, Chief Judge, Aldisert, Gibbons, Rosenn, Hunter, Weis, Garth, Higginbotham, and Van Dusen, Circuit Judges.
Reargued Nov. 6, 1978 In Banc.
This is an appeal by the defendant, George Agee, from his conviction in the district court of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (1976). Agee asserts four grounds for reversing his conviction: (1) The United States Attorney should not have introduced evidence which had been suppressed in a prior state prosecution arising out of the same incident; (2) the trial court did not include in its instructions to the jury a charge which Agee's counsel had requested; (3) it was disclosed to the jury that in a conversation with the police prior to his arrest, Agee did not inform them that there were narcotics in his car; (4) the trial judge questioned Agee in the presence of the jury regarding his decision to waive his Fifth Amendment right not to testify.
While all of the issues raised by Agee on this appeal have had our attention, it is the third issue concerning Agee's conversation with the police prior to his arrest that resulted in our ordering rehearing of this appeal En banc.*fn1 Agee claims in connection with this issue that the Supreme Court's decisions in United States v. Hale*fn2 and Doyle v. Ohio*fn3 require the reversal of his conviction. This is so, he argues, because his exercise of the right to remain silent was disclosed to the jury. Contrary to Agee's argument, we hold that his rights under Hale and under the Fifth Amendment were not violated. Finding no merit in Agee's other arguments, we affirm.
Agee was arrested on February 12, 1976 by Philadelphia Police Officers Michael Zagursky and Robert Wissman. The arresting officers testified that they observed Agee driving an automobile which made two turns without signalling. They followed Agee's vehicle and waived it over to the side of the road. They then left their vehicle and walked up to the car which they had stopped. Officer Wissman testified that he observed that the driver, Agee, was attempting to conceal under the seat a foil package containing glassine packets of tan powder. As he approached the car on the passenger's side, Officer Zagursky saw a similar package on the floor in front of the passenger, Andrew Smith. Believing the powder in the packages to be heroin, they placed Agee and Smith under arrest and seized the foil packages. Subsequent analysis revealed that the packages contained a mixture of heroin, quinine, procaine and reducing sugar.
A federal grand jury returned an indictment charging Agee and Smith with possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (1976). After a trial at which Agee testified but Smith did not, the jury found both defendants guilty of the charge. After sentencing,*fn4 Agee appealed from his conviction; he also appealed from the trial court's order denying his motion for entry of a judgment of acquittal or, in the alternative, for a new trial.
Agee testified at his trial, giving an account of the events leading to his arrest on February 12, 1976. On direct examination, he testified that, on that date, Smith was a passenger in Agee's unlicensed taxicab, and that he may have been a passenger in his taxicab on prior occasions. While Agee was driving with Smith as his passenger, a policeman in a patrol car signalled to him to pull over to the side of the road. He did so and then informed his passenger that they had been stopped by the police:
A. "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.
A. I started to throw it over to him. I didn't know whether to throw it to him or throw it out the window. Then I got a little thing in the center of my car called a got a little thing I could lift up.
A. Console, yes. So I tried to lift up this console to put it in there. I couldn't get it up because I used, always would use a pencil to stick it in one of those holes to push it up if I want to put something in there. So I couldn't hide it under there. So I put it under my seat and I got out of my car right away.
A. I got out of my car. I walked back toward the policeman."
His testimony regarding the events immediately preceding his arrest was as follows:
"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."
After the completion of Agee's direct testimony, he was cross-examined first by Smith's attorney and then by the government. During his cross-examination of Agee, Smith's counsel asked Agree whether he had "made any statement to the police at any time?" Agee replied that he had not. The government then asked a series of questions which retraced Agee's testimony on direct examination. Agee admitted that, at the time he left his car to speak with the police, he knew that there were drugs in Smith's possession. Agee also admitted that he had concealed some of those drugs under his seat. He was then asked whether his purpose in approaching the policemen was "to keep the police from coming up to your car." Agee replied that "(t)hat's what I had in mind." He further testified that "what was in (his) mind" was to "tell Smith to take his stuff and get out of my car". The prosecutor then asked Agee:
Q. But it wasn't in your mind to say to the police, "That man in my car has dope. Arrest him."?
On Redirect examination, Agee testified that he had not told the police that Smith had drugs because he wanted to consult with a lawyer and did not believe that the policemen would tell the truth.
During their summations, the attorneys for both Smith and the government returned to the subject of Agee's conversation with the police prior to his arrest. Smith's counsel argued that the jury should consider Agee's "testimony that he did not advise the police as to what happened in the car." The prosecutor reviewed Agee's account of what he did and did not tell the police prior to his arrest:
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 diver (sic) 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?
Agee contends that these were "references to and comments on (his) exercise of his right to remain silent (and) were improper and require a new trial." Br. for Appellant at 12-13.
The government has urged that this court may not consider Agee's Fifth Amendment claim, because Agee did not object at trial to the questions and to the parts of the summation which purportedly referred to Agee's "silence" prior to his arrest. The record reveals that prior to the trial, Agee's attorney had made a motion to exclude questions regarding the "defendant's silence at the time of arrest." The district court declined to rule on the motion At that time. However, the court stated that during the trial, it would, out of the hearing of the jury, entertain a request for a ruling and that it would give an appropriate instruction regarding the defendant's right to remain silent. During the trial, Agee's counsel failed in each instance to object to the questions and arguments which he now asserts were references to his client's silence at arrest. Because we hold that no error occurred which would have been reversible even if timely objections had been made, we need not consider whether the "plain error" doctrine would have any application to these circumstances.*fn5
In two recent decisions, United States v. Hale*fn6 and Doyle v. Ohio,*fn7 the Supreme Court has considered whether a prosecutor may ask questions or make comments which reveal to the jury that the defendant exercised his right to remain silent After his arrest. In Hale, a defendant who had been charged with robbery in the district court for the District of Columbia testified that the money which the police had found on his person had been given to him by his wife. The prosecution impeached his testimony by causing him to admit during cross-examination that he had not informed the police of the source of the money at the time of his arrest. The Supreme Court, exercising its supervisory authority over the federal courts, ordered a new trial. It found that in the circumstances of the case, Hale's silence lacked significant probative value and that any reference to it carried with it an "intolerably prejudicial impact."*fn8
In the subsequent case of Doyle v. Ohio, the defendants testified that they had been "framed" by a government informant.*fn9 On cross-examination, the prosecutor asked each defendant whether he had told this to the policeman after he arrested them; each replied that he had not. The Supreme 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."*fn10
Here Agee argues, like the defendants in Hale and Doyle, that because he was questioned at trial about his "silence" at the time of his arrest, he should be granted a new trial either under the rule of evidence announced in Hale or under the Fifth Amendment.*fn11 However, the record reveals that Agee, unlike the defendants in the cases considered by the Supreme Court, had not remained Silent regarding the facts of the crime with which he was charged. Instead, according to Agee's own testimony, he made statements to the police which he knew to be false and which he hoped would prevent them from discovering an ongoing crime. This circumstance distinguishes the present case from Hale and Doyle.
If Agee had stood mute (as the defendant in Hale did)*fn12 or had asked "what's this all about," and then remained silent (as the defendants in Doyle did),*fn13 perhaps this would be a different case. However, the prosecution in its cross-examination of Agee Did not open new avenues of inquiry; it merely caused Agee to repeat what he had already admitted in response to his counsel's questions: that he had attempted to deceive the police. In this context, it is clear that the question to which Agee now objects whether it was "in (his) mind" to inform the police that Smith had dope was not a reference to Agee's purported silence. Rather, it referred to his admission that what he had in mind when he approached the police and engaged them in conversation was to keep the police from coming up to his car. Moreover, it was this attempted deception, not Agee's "silence," that was emphasized by the prosecutor in her summation, the relevant parts of which are reproduced at the margin.*fn14
"Silence" at the time of arrest is the critical element of the Fifth Amendment right on which Agee relies in this appeal. The Supreme Court has described that right as "the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will.' "*fn15 The rationale which the Supreme Court adopted for its decision in Doyle was that it is fundamentally unfair for the prosecution to impose a penalty at trial on a defendant who has exercised that right by choosing to remain silent.*fn16 The very statement of that rationale demonstrates that Doyle can have no application to a case in which the defendant did Not exercise his right to remain silent.*fn17 Courts in other circuits have so held.*fn18
One difficulty which we have encountered in responding to the dissenting opinion is that it fails to confront either the record in this case or the thrust of the majority opinion. The dissent persists in discussing this case as though it involved comment on Agee's "silence," when, as we have pointed out, even a casual reading of the record reveals that Agee simply did not remain silent regarding the facts of the crime with which he was charged.*fn19 Therefore contrary to the characterization given to the majority opinion by the dissent (at pp. 368-369) we do not find it necessary to decide whether Doyle has any application to a case in which the defendant's alleged "silence" occurred Prior to his arrest and the giving of Miranda warnings. It is abundantly clear from this record that Agee did not remain silent.
Here, as we have indicated, the record reveals unequivocally that Agee did not exercise his right to remain silent regarding the facts of the incident. Nor did the prosecutor suggest that he did. Instead, the thrust of her questions and her argument was that Agee made a deliberate choice to lie to the police in order to conceal from them an ongoing crime. If we were to hold that a prosecutor may not question or refer to a defendant's statements and conduct which were designed to deceive the police regarding the commission of a crime, we would be extending the holding of Doyle far beyond its rationale. This we decline to do.
A new trial might nonetheless be required here if we were to conclude that the prejudicial effect of the prosecutor's questions and comments greatly outweighed their probative value. In Hale, the Supreme Court concluded that "silence during police interrogation lacked significant probative value . . ." 422 U.S. at 180, 95 S. Ct. at 2138. Evidence that a suspect remained silent after he received Miranda warnings is insolubly ambiguous, because it cannot be determined whether he remained silent because he was exercising his Fifth Amendment right or because he fabricated his exculpatory testimony at a time subsequent to his arrest.*fn20 No such ambiguity is present here, because as Agee's own testimony has shown, Agee did not stand mute nor did he assert his right to do so. Instead, Agee testified that he approached the police and spoke with them, answering when he was asked whether he had any dope. His testimony regarding what he chose to do and say when he approached the police officers provided a context which emphasized the probative value of what he chose Not to say to the police. Although evidence concerning Agee's actions, statements and omissions prior to his arrest may have required careful evaluation by the jury in light of his exculpatory testimony at trial, it is clear that this evidence did not suffer from the "insoluble ambiguity" which concerned the Supreme Court in Hale.
Another factor which leads us to conclude that the prosecutor's questions and Agee's answers were admissible is that their probative value was not confined to the issue of Agee's credibility. Not only were the prosecutor's questions designed to show that Agee's direct testimony was suspect, but they also bore upon the substantive crime with which he was charged. In Hale, the sole purpose of the prosecutor's questions regarding the defendant's post-arrest silence was to suggest that his exculpatory testimony was a recent fabrication.*fn21 By contrast, here it was certainly relevant to the crime charged to prove that Agee had made a conscious choice between informing the police of an ongoing crime and deceiving them so that they would leave without discovering the heroin.*fn22
Whatever prejudice Agee may have suffered from the revelation that he had chosen to conceal an ongoing crime from the police occurred first during his own testimony on direct examination.*fn23 In view of these circumstances, Agee's reliance on Hale is without foundation: the prosecutor's question and argument had probative value and did not violate the holding of Hale.*fn24
Having concluded that Agee's Hale/Doyle arguments fail insofar as they pertain to the government, we turn next to an examination of two isolated references made by Smith's counsel to Agee's "silence. " Because the issue is barely presented, if at all, by this record, we need not discuss whether Hale and Doyle are applicable when the reference to a defendant's silence is made by his Co-defendant rather than by the Prosecutor.*fn25 Here the record reveals but one ambiguous question and one reference in argument by Smith's counsel which might arguably be said to implicate Agee's "silence."
During his long cross-examination of Agee, Smith's counsel asked him: "Did you make any statement to the police at any time?" Agee replied, "No, sir." Later, in his summation, Smith's counsel again touched briefly on the question of what Agee did and did not tell the police:*fn26
He (Agee) testified that he did not advise the police as to what 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 ...