IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-51241
UNITED STATES
OF AMERICA,
Plaintiff-Appellee,
versus
GARY M GREEN,
also known as Gary Macklyn Green,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
November 9, 2001
Before REAVLEY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Gary M. Green appeals his conviction following a
jury trial on a charge of felon in possession of firearms in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). While in custody, Green responded to Miranda
warnings with unambiguous requests for his lawyer. Investigators nonetheless
then asked Green to open the combination lock of a gun safe and locate other
stored guns in his home. We find that Green's compliance was testimonial
evidence obtained in violation of Green's Fifth Amendment right to counsel and
its admission at trial requires that we reverse his conviction and remand for a
new trial.I.
Gary M. Green was convicted in the Western District
of Texas in 1988 of conspiracy to possess multiple unregistered machine guns in
violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 371. On February 25, 2000,
based on a tip from a first-time confidential informant and follow-up
investigation and surveillance, Agent Jim Brigance of the Bureau of Alcohol,
Tobacco, and Firearms obtained a search warrant authorizing a search of Green's
person, his residence at 117 Royal Oaks Street, Kerrville, Texas, and his green
1999 Ford F-250 pick-up truck for evidence of Green's possession of firearms in
violation of 18 U.S.C. § 922(g)(1).
Agent Brigance oversaw the execution of the search
warrant on February 29, 2000. He was assisted by six ATF agents and several
officers from the Texas Attorney General's Office and the Kerr County Sheriff's
Office. The agents detained Green at the Kerrville Post Office. Responding to a
Miranda warning, Green asked to contact his lawyer. The agents did not
allow Green to call his lawyer at that time, but searched Green and his truck.
The agents then placed him in a patrol car and transported him to his
residence.
Agent Brigance waited at Green's residence for Green
and the agents. Upon arriving, Agent Larry Swisher told Brigance that Green had
been advised of his Miranda rights and that he asked to speak to a
lawyer. Agent Brigance then identified himself to Green and told him about the
search warrant. Green was given another Miranda warning and again
responded that he wanted to call his lawyer. Agent Brigance told Green that he
could do that later. Agent Brigance testified at the suppression hearing that
Green was not free to leave at any point after he was approached at the post office.
As the search of the residence began, Green told
Agent Brigance that no one else was home. Agent Brigance asked Green whether
there were any weapons in the house or any public safety hazards that could
harm anyone, and Green replied that there were several firearms. Following a
security sweep of the residence, Agent Brigance asked Green to point out the
firearms. Green took Agent Brigance to a bedroom closet which contained a
locked metal briefcase. At Agent Brigance's request, Green unlocked the
combination lock on the briefcase. Three firearms were recovered from the
briefcase: a Taurus nine-millimeter handgun, a Fabrica Militar de Armas
Portatiles nine-millimeter handgun, and a Sig Sauer .45-caliber handgun, all
later charged in Green's indictment. Green then told Agent Brigance that there
was a shotgun in a gun safe in another room. Green and Agent Brigance entered
that room, where Green opened the combination lock on the safe. The safe
contained a Winchester twelve-gauge shotgun, also charged in Green's
indictment. At the suppression hearing, Agent Brigance admitted that Green was
not free to leave at this point but maintained that Green had not yet been
"arrested."
On April 5, 2000, Green was indicted on a charge of
felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Green filed a pretrial motion seeking an order suppressing the
evidence obtained during the execution of the search warrant and the statements
and testimonial acts elicited from him during the search in violation of his
Fifth Amendment right to counsel. Following a pretrial suppression hearing, the
district court granted the motion to suppress any oral statements made by Green
during the execution of the search warrant. The court found that Green had
clearly asked for a lawyer and that he was not free to leave. The court also
stated, "This does not apply to the guns or the narcotics found by search
warrant, that's something else." The court therefore did not suppress the
physical evidence obtained during the execution of the search warrant.
Defense counsel filed an in limine motion
seeking an order excluding the admission of evidence regarding Green's opening
the locked briefcase and safe and disclosing their locations. The district
court reserved ruling on the motion and asked counsel to approach the bench
before any inquiry about those events at trial.
Before Agent Brigance took the stand in the
government's case-in-chief, defense counsel reurged his objection to the
admission of evidence of Green's conduct in unlocking the briefcase and safe.
The government argued that defense counsel had left a false impression with the
jury by asserting during his opening statement that there was no evidence that
Green had entered the closet where the firearms were found, when Green had the
combination to the briefcase in the closet. The district court overruled
defense counsel's objection and allowed the government to introduce the
evidence.
Agent Brigance then testified that, during the
search of Green's residence, a Winchester shotgun was found in a gun safe in
the corner of one room, that Green knew the combination to the safe by memory,
and that Green opened the safe's combination lock. Agent Brigance also
testified that several firearms were found in a metal briefcase, that the
briefcase was locked with a dial combination lock, and that Green opened the
lock for him.
The government made substantial use of this
evidence. During the government's closing, Assistant United States Attorney
Joey Contreras argued:
And what else did you hear? Well, there was a safe
there, a gun safe. Entry couldn't be made into that safe, but for one person
who knew the combination to that safe. Who was that person? The defendant, the
convicted felon, Gary Green.
It doesn't stop there. We have three other firearms.
Where are they? They are in a locked briefcase. How are they able to get into
that briefcase? Only one person had--opens that briefcase, has the combination,
that is the defendant, convicted felon Gary Green.
. . . .
The bottom line is, those guns were in his house,
his safe, the briefcase to which he had the combination.
Assistant United States Attorney Karen Norris then argued in the government's
rebuttal argument:
And he is saying that because he wants you to think
Gary Green didn't have knowledge that the firearms were in the house. Ladies
and gentlemen, that's absurd.
There were thousands of rounds of ammunition
scattered through the house. Gary Green opened the safe, the gun safe in the
video room, where the shotgun was located. And Gary Green opened the case in
the closet of the spare bedroom, his father's old bedroom, where the other guns
were located. It is absurd--absurd to suggest that Gary Green didn't know there
were guns in that house.
. . . .
It is undisputed in this case, and the evidence is
clear, that this defendant had the ability to exercise dominion over those
guns. He had the combination to the safe. The guns were in his house. Nobody
ever disputed that this was his house. He had lived in that house for 20 years,
first with his father and then with a string of other people. But it was his
house. And he had that combination. He had the power, the ability, to exercise
control over those firearms.
. . . .
Ladies and gentlemen, this is a simple case. The ATF
agents got a search warrant to look for firearms at 117 Royal Oak. And they
went out there on February 29th, and they went into the house, and they found
firearms. They found four of them; three in a locked briefcase, which the
defendant opened, one in a locked safe, which the defendant opened.
On August 23, 2000, the jury found Green guilty. Green was sentenced to 18
months imprisonment and three years supervised release. Green has timely
appealed his conviction.
II.
In reviewing the denial of the defendant's motion to
suppress, we review the district court's factual findings for clear error and
its legal conclusions de novo.(1) "We view the evidence in the
light most favorable to the party that prevailed in the district court."(2) When
reviewing the district court's denial of the defendant's motion to suppress, we
may consider the evidence admitted at both the suppression hearing and the
trial.(3)
A.
Green argues that the district court erred in
denying his motion to suppress evidence of his disclosure of the location of
two locked cases containing firearms and his unlocking the combination locks on
these cases after he had been given a Miranda warning and had
repeatedly requested counsel. We agree.
"The Fifth Amendment right to counsel arises
when, as here, an individual is subject to custodial interrogation."(4) The
government does not dispute that Green was in custody when he identified the
briefcase and safe and unlocked the combination locks on each, after having
been transported by ATF agents to his residence and led around in the execution
of the search warrant.(5)
The government also does not dispute, although it does not explicitly concede
the point, that the ATF agents' actions in taking Green to his residence and
telling him to assist the agents in executing the search warrant and show them
any firearms in the residence was interrogation likely to elicit an
incriminating response.(6)
Green's actions in disclosing that there were firearms in the residence,
showing the agents where the firearms were located, and opening the briefcase
and safe were all made in response to queries from ATF agents after he had
invoked his right to counsel. This was custodial interrogation.
Once a suspect who is in custody has been informed
of his right to counsel through a Miranda warning and has requested
counsel, law enforcement officers may not further question the suspect, and,
absent his knowing and voluntary waiver of his right to counsel, any statements
or testimonial acts elicited by law enforcement officers are inadmissible.(7) The
government makes no argument that Green did not clearly and unambiguously
invoke his right to counsel, because he did, or that he waived his right to
counsel or voluntarily initiated communication with the ATF agents, because he
did not.(8)
On appeal, the government mentions its argument made
before the district court that, although Green's oral statements may have been
elicited during custodial interrogation in violation of his Fifth Amendment
right to counsel, Green's acts of opening the combination locks were
non-testimonial. This argument is without merit. Supreme Court precedent
forecloses any argument that Green's directing the agents to the two cases
containing firearms and opening the combination locks were not testimonial
acts.
In Doe v. United States,(9) the
majority implicitly held that this precise behavior was testimonial
communication so expressing the defendant's mind as to constitute compelled
self-incriminatory statements.(10) There is no serious question but
that Green's actions in disclosing the locations and opening the combination
locks of the cases containing firearms were testimonial and communicative in
nature.(11)
These compelled acts disclosed Green's knowledge of the presence of firearms in
these cases and of the means of opening these cases.(12) The ATF agents elicited these
testimonial acts in violation of Green's Fifth Amendment right to counsel, and
their admission at trial was reversible error.
B.
The government argues that any violation of Green's
rights under the rule established in Edwards v. Arizona(13) was
either invited error or harmless constitutional error. The doctrine of invited
error provides that "when injection of inadmissible evidence is
attributable to the actions of the defense, the defense cannot later object to
such 'invited error.'"(14) Under this doctrine, a defendant
cannot complain on appeal of alleged errors which he invited or induced,
especially where the defendant may not have been prejudiced by the error.(15) We
"will not reverse on the basis of invited error, absent manifest
injustice."(16)
The government argues that Green opened the door to
admission of the evidence of his disclosing the location of the firearms and
opening the combination locks on the cases containing the firearms when, during
his opening statement, defense counsel argued that the government had no
evidence that Green "ever entered the closet where the guns were
found" or "did anything, other than live in that house." The
government contends that, if Green knew the combination to the briefcase, which
was found in the closet, it is reasonable to infer that Green had been in the
closet, had opened the briefcase, and knew about the firearms. The government
also argues that the assertion in defense counsel's opening statement that the
government had no evidence that Green did anything other than live in the
residence was countered by the reasonable inferences that, because Green knew
of the combinations to the locks on the briefcase and safe, he knew of the
firearms.
This argument would have no purchase if defense
counsel had explicitly used the word "admissible" in stating that the
government had no evidence, an argument that no competent counsel would make.
Such a statement aside, the contention is that, because defense counsel
challenged whether the government had any evidence, the door was opened
to evidence obtained in violation of Green's Fifth Amendment right to counsel.
This argument lacks record support, and we reject it.
It is the admission of improper evidence,
not just arguments, of which Green complains,(17) and here the evidence was not
admitted for impeachment purposes only, but rather as evidence of Green's guilt
in the government's case-in-chief.(18) Moreover, this is not a case where
defense counsel opened the door by questioning the defendant on a subject
relating to inadmissible evidence.(19)
The government's reliance on United States v.
Casto(20)
is misplaced. In Casto, defense counsel suggested in his opening
statement that he might attack the credibility of a government witness if she
were put on the stand.(21)
We held that it was permissible for the government to anticipate the
cross-examination, noting that the witness's guilty plea did not implicate the
defendant or confirm or deny his guilt.(22) Here, Green's testimonial conduct
implicated his guilt, as evidenced by the government's use of the evidence.
We find more help in our decision in United
States v. Acosta.(23)
In Acosta, defense counsel announced in his defense opening statement
that he would put the defendant on the stand and that "'I want to give the
U.S. Attorney an opportunity to delve into his background and to present to you
anything that they may like to present to you that would reflect adversely upon
him.'"(24)
The district court allowed the prosecutor to admit a remote prior conviction
over defense counsel's objection under Federal Rule of Evidence 609(b) because
the district court held that the word "anything" in the defense
opening statement constituted "a waiver of [the defendant's] right to
object to potentially inadmissible evidence or otherwise suspended the
operation of the rules of evidence."(25) The trial court explained, using
reasoning very similar to that underpinning the government's argument here:
"Because I think when counsel invites the
Government to bring up anything, uses the word anything, I think they have the
right to do it. I think you are not being fair with the jury when you tell them
that you are going to let the Government go into anything and that you are
really not, counsel. If you had qualified it, said anything that the law will
allow him to do. But there is no qualification, they just think Mr. Arney had
been teaching Sunday School all his life, and that is not quite correct."(26)
We rejected this reasoning, noting that "the use of the word 'anything' by
counsel during opening argument did not bar [the defendant] from objecting to
the admission of his remote conviction and [the defendant] did effectively
object when the government notified the court that it would seek to elicit this
evidence on cross-examination."(27)
Similarly, Green did not open the door to the
admission of inadmissible evidence against him and did not create a false
impression by challenging whether the government had any evidence to satisfy
the knowing possession element of the section 922(g)(1) charge against him.
Although the government points to defense counsel's statements in his opening
regarding whether the government had "any evidence," these statements
must be read within the context of the entire opening. Defense counsel prefaced
his statements no less than ten times by the usual qualifying language of
opening statements that he believed or suspected "the evidence is going to
show," or that he thought "there's going to be evidence" of,
various facts. He also concluded his opening statement by saying that
"[t]hat's the case that I think the government is going to bring to
you." And the government made no complaint at the time about the argument.
It remained silent until later in the trial when it decided it wanted to elicit
the disputed evidence.
In the context of defense counsel's opening
statement, fairly read, "any evidence" means "any admissible
evidence." At the time of the opening statement, the district court had
suppressed Green's oral statements elicited after his rejected request for
counsel and reserved ruling on the requested exclusion of Green's testimonial
acts in disclosing the location of the firearms in the locked cases and opening
the locks on those cases. Although the district court therefore had not yet
ruled whether the testimonial conduct was admissible, defense counsel's
statement that the government did not have any evidence showing knowing
possession did not, by itself, render incompetent evidence admissible. The
inescapable fact is that the government would not have had this evidence had
the in limine objection been properly sustained at trial. The argument
in the defense closing would then have been that "the government has
brought you no evidence that . . ." or "there was no evidence in the
record . . ." or "the government has no evidence that . . .."
By challenging whether the government had any
admissible evidence of his guilty knowledge Green did not automatically make
admissible any facts, conduct, or statements that the district court had not
yet explicitly ruled inadmissible. To hold otherwise would stretch the doctrine
of invited error too far.
C.
The government argues that, if the error was not
invited, the error was nevertheless harmless because the evidence of Green's
guilt was overwhelming even without the questioned evidence of Green's
disclosing the location of, and opening the combination locks on, the briefcase
and safe containing the firearms. The erroneous admission of evidence of
testimonial acts elicited in violation of a suspect's Fifth Amendment right to
counsel is subject to the doctrine of harmless constitutional error.(28)
Under a harmless constitutional error analysis, we
must review the record to determine whether the error was harmless beyond a
reasonable doubt.(29)
"An error is harmless only if we can determine beyond a reasonable doubt
that the improper testimony did not contribute to the jury's verdict."(30) We
must consider what effect the error had upon the guilty verdict in the instant
case, not the effect the constitutional error might generally be
expected to have upon a hypothetical reasonable jury.(31) The question is whether the
evidence prejudicially contributed to the conviction,(32) i.e., whether, looking to
the basis on which this jury rested its verdict, the verdict rendered
was surely unattributable to the constitutional error.(33)
We have noted that a consideration relevant to
whether a guilty verdict was "surely unattributable" to the constitutional
error is the degree of importance placed on the erroneously admitted evidence
by the prosecution in presenting and arguing its case to the jury, such that
"[t]he emphasis, or lack thereof, placed on the [evidence] by the
prosecution can affect the perception of that [evidence] by the jurors."(34) As
Green persuasively argues, the erroneously admitted evidence was important in
the government's proof of Green's knowing possession of the firearms, an
element of its case. Green's knowledge of the location of the firearms and the
combinations to the locks on the briefcase and safe was emphasized repeatedly
in the government's closing arguments and in the questioning of the ATF agent
from whom it was elicited.
We find that the evidence of ammunition scattered
throughout the residence and the evidence that Green may have entered the rooms
in which the firearms were located does not establish that the constitutional
error in this case was harmless beyond a reasonable doubt. Green's knowledge of
the location of the firearms in the locked cases and of the combination of the
locks on those cases was the only direct evidence of his knowledge of and
access to the firearms charged in the indictment.(35) Given this fact, coupled with the
evidence at trial that other people who may have possessed firearms had resided
in Green's house, it cannot be said that the error in this case was harmless
beyond a reasonable doubt.
III.
Because we find the district court committed
reversible error in denying Green's motion to suppress his testimonial conduct,
we need not reach Green's other points of error. We REVERSE Green's conviction
and REMAND for a new trial.
1. United States v. Jacquinot, 258 F.3d
423, 427 (5th Cir. 2001).
2. United States v. Hunt, 253 F.3d 227, 230
(5th Cir. 2001).
3. United States v. Jones, 239 F.3d 716,
718 (5th Cir.), cert. denied, 122 S. Ct. 142 (2001)
4. United States v. Cruz, 22 F.3d 96, 98
n.7 (5th Cir. 1994).
5. See United States v. Gonzales,
121 F.3d 928, 939 n.6 (5th Cir. 1997) (discussing the "custodial"
requirement).
6. See United States v. Daughenbaugh,
49 F.3d 171, 174 (5th Cir. 1995) (discussing the "interrogation"
requirement); United States v. Dougall, 919 F.2d 932, 935 (5th Cir.
1990) (same).
7. See Edwards v. Arizona, 451 U.S. 477,
484-85 (1981); Muniz v. Johnson, 132 F.3d 214, 218 (5th Cir.
1998); United States v. Broussard, 80 F.3d 1025, 1035 (5th Cir. 1996);
Bradford v. Whitley, 953 F.2d 1008, 1010 (5th Cir. 1992).
8. See United States v. Posada-Rios, 158
F.3d 832, 867 (5th Cir. 1998) (holding that the right to counsel must be
unambiguously invoked by a suspect); Muniz, 132 F.3d at 218 (holding
that a suspect is not subject to further interrogation by law enforcement
officers until counsel has been made available to him unless the suspect
himself initiates further communication, exchanges, or conversations with the
officers); Bradford, 953 F.2d at 1010 (holding that a valid waiver of
the Fifth Amendment right to counsel cannot be established by showing only that
the suspect responded to further law-enforcement-initiated interrogation even
if he had been advised of his rights); Davis v. Puckett, 857 F.2d
1035, 1037 (5th Cir. 1988) (holding that, after a suspect invoked his right to
counsel, subsequent statements are admissible only if the suspect initiated
further discussion with the police and knowingly and intelligently waived the
right he had invoked).
9. 487 U.S. 201 (1988).
10. Id. at 210 n.9 (making a comparison
between being compelled to surrender a key to a strongbox containing
incriminating documents, which would not be a testimonial act, and being
compelled to reveal the combination to a wall safe, which would be a
testimonial act).
11. See Penn. v. Muniz, 496 U.S.
582, 594-95 (1990); see also Schmerber v. Cal., 384 U.S. 757, 761-65
(1966) (discussing the meaning of "testimonial" and
"communicative" for purposes of Fifth Amendment protections);
United States v. Brown, 920 F.2d 1212, 1215 (5th Cir. 1991) (listing
applications of the rule that the Fifth Amendment applies only to evidence that
is testimonial and communicative in nature, and not to evidence that is demonstrative,
physical, or real).
12. See Muniz, 496 U.S. at 595 n.9 (noting
that "nonverbal conduct contains a testimonial component whenever the
conduct reflects the actor's communication of his thoughts to another").
13. 451 U.S. 477 (1981).
14. United States v. Raymer, 876 F.2d 383,
388 (5th Cir. 1989).
15. Id.
16. United States v. Pankhurst, 118 F.3d
345, 359 (5th Cir. 1997); see also United States v. Lemaire, 712 F.2d
944, 949 (5th Cir. 1983) ("[Invited error] would remove the matter from
being error requiring reversal, unless the error was so patent as to have
seriously jeopardized the rights of the appellant.").
17. Compare United States v. Rodrigo, 934
F.2d 595, 597-98 (5th Cir. 1991).
18. Compare United States v. Grubbs, 776
F.2d 1281, 1286-87 (5th Cir. 1985).
19. See Raymer, 876 F.2d at 388
(finding invited error where defense counsel first inquired on direct
examination about statements made by the defendant to his psychologist, after
which the prosecutor asked two questions on the subject which went largely
unanswered and the prosecutor did not touch on the subject again); United
States v. Meneses-Davila, 580 F.2d 888, 895 & n.14 (5th Cir. 1978)
(finding invited error where defense counsel first elicited evidence regarding
otherwise inadmissible post-arrest silence); United States v. Doran,
564 F.2d 1176, 1177 (5th Cir. 1977) (finding invited error where defense
counsel first elicited evidence regarding otherwise inadmissible plea
negotiations).
20. 889 F.2d 562 (5th Cir. 1989).
21. Id. at 567.
22. Id. at 567-68.
23. 763 F.2d 671 (5th Cir. 1985).
24. Id. at 694 n.28.
25. Id. at 694.
26. Id.
27. Id. (footnote omitted).
28. Goodwin v. Johnson, 132 F.3d 162, 181
(5th Cir. 1997).
29. See United States v. Moreno, 185 F.3d
465, 472 (5th Cir. 1999).
30. Id. at 475.
31. United States v. Lage, 183 F.3d 374,
388 (5th Cir. 1999).
32. United States v. Nutall, 180 F.3d 182,
188 (5th Cir. 1999).
33. United States v. Walker, 148 F.3d 518,
526 (5th Cir. 1998).
34. Id. at 527.
35. We also recognize that a shotgun barrel was
recovered from Green's truck, which could be used to replace the barrel on the
shotgun recovered from the gun safe in Green's house. This evidence, however,
also does not alter our conclusion that the constitutional error in this case
was not harmless beyond a reasonable doubt.